Puerto Rico Aqueduct and Sewer Authority (Board decision, March 19, 2012)

Plain-English summary

Puerto Rico Aqueduct and Sewer Authority and EPA Region 2 reached a settlement through the Environmental Appeals Board's Alternative Dispute Resolution pilot program. The settlement required several modifications to PRASA's disputed NPDES permit through the public notice-and-comment process. The Board dismissed PRASA's petition without prejudice and preserved its ability to reactivate the appeal if the agreed modifications were not made. The order did not decide the permit issues on their merits.

Decision snapshot

• Cited authorities: 40 C.F.R. Parts 122 and 124
• Outcome: The petition was dismissed without prejudice after a permit-modification settlement, with the right to reactivate the appeal preserved if the process failed.
• Key point: A settlement during ADR can end a permit appeal without prejudice while preserving a route back to the Board if agreed modifications are not completed.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.

In re:

Puerto Rico Aqueduct & Sewer Authority NPDES Appeal No. 11-08

NPDES Permit No. PR0021555

ORDER DISMISSING PETITION FOR REVIEW

On March 15, 2012, the Puerto Rico Aqueduct and Sewer Authority ("PRASA") and Region 2 of the U.S. Environmental Protection Agency filed a joint motion for disposition of the above-captioned appeal. PRASA and Region 2 report that they have reached a settlement agreement as a result of negotiations conducted through the Environmental Appeals Board's Alternative Dispute Resolution ("ADR") pilot program. The parties have agreed that Region 2 will make several specific modifications to the disputed permit, which will take approximately six months to incorporate into the permit through the public notice-and-comment processes set forth at 40 C.F.R. parts 122 and 124.

In light of their settlement agreement, PRASA seeks to withdraw its Petition for Review in this case, without prejudice to the renewal of its Petition in the event the agreed-upon modifications are not made to the permit. Alternatively, PRASA and Region 2 seek a six-month extension of the present stay of proceedings, during which time the Region will initiate and complete the permit modification process.

For good cause shown, the Petition for Review captioned above is hereby DISMISSED WITHOUT PREJUDICE. PRASA retains the ability to "reactivate its appeal" in the event the permit modification process fails to result in the modifications agreed upon by the parties through the Board's ADR process.

So ordered.

ENVIRONMENTAL APPEALS BOARD

Dated: March 19, 2012 By: [signature]

Charles J. Sheehan
Environmental Appeals Judge

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Dismissing Petition for Review in the matter of Puerto Rico Aqueduct and Sewer Authority, NPDES Appeal No. 11-08, were sent to the following persons in the manner indicated:

By Facsimile and First Class U.S. Mail:

Jorge Marrero Narvaez, Esq.
Puerto Rico Aqueduct and Sewer Authority
Post Office Box 7066
San Juan, Puerto Rico 00916-7066
telephone: (787) 620-2277
facsimile: (787) 620-3830

By Facsimile and EPA Pouch Mail:

Diane T. Gomes, Esq.
Office of Regional Counsel
U.S. Environmental Protection Agency, Region 2
290 Broadway, 16th Floor
New York, New York 10007-1866
telephone: (212) 637-3235
facsimile: (212) 637-3202

Date: March 19, 2012 [signature]

Annette Duncan
Secretary