Star Sewer and Water District Wastewater Treatment Plant (Board decision, July 28, 2015)

Plain-English summary

Star Sewer and Water District petitioned the Environmental Appeals Board over NPDES Permit No. ID0023591 for its wastewater treatment plant. The petition challenged effluent limits for ammonia and chlorine and a task in the chlorine compliance schedule. EPA Region 10 notified the Board that it would withdraw those contested conditions and prepare a new draft permit. Under 40 C.F.R. § 124.19(j), the Board dismissed the petition as moot. The remaining permit conditions stayed in effect under 40 C.F.R. § 124.16(a)(2), so the order did not decide the withdrawn conditions on their merits.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6, 124.16(a)(2), and 124.19(j)
• Outcome: The petition for review was dismissed as moot after Region 10 withdrew the contested permit conditions.
• Key point: A permit issuer may withdraw contested conditions and prepare a new draft permit, which can make the pending appeal moot.

Full text (EPA EAB public release)

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

                                              )

In re: )
)

Star Sewer and Water District ) NPDES Appeal No. 15-07
)
Wastewater Treatment Plant )
)
)
NPDES Permit No. ID0023591 )
)

                    ORDER DISMISSING PETITION FOR REVIEW

                         I.      PROCEDURAL BACKGROUND
      On April 28, 2015, Star Sewer and Water District ("Star") filed a Petition for Review of

NPDES Permit No. ID0023591 ("Permit"), which the U.S. Environmental Protection Agency, Region 10 ("Region"), issued to Star on March 26, 2015. The Permit authorizes discharges from Star’s wastewater treatment plant. The Permit provisions affected by the Petition are the effluent limitations for ammonia and chlorine as well as an ancillary provision dealing with the compliance schedule for chlorine. On May 5, 2015, the Region provided a Notification of Stayed Permit Conditions pending final agency action under 40 C.F.R. § 124.19(j). Letter from Daniel D. Opalski, Director, Office of Water and Watersheds, U.S. EPA Region 10, to John Kirtley, Board President, Star Sewer and Water District, Notification of Stayed Permit Conditions NPDES Permit, Permit [sic] NO ID0023591 (May 5, 2015). On May 26, 2015, the Idaho Department of Environmental Quality filed a Notice of Appearance, and on June 16, 2015, Justin Hayes filed an amicus curiae brief on behalf of himself and the Idaho Conservation League. The Region sought, and obtained from the Board, two extensions of the deadline to file the Region’s response. Second Order Granting Motion for Extension of Time to File Response (June 19, 2015) ("Second Order"); Order Granting Motion for Extension of Time to File Response (May 28, 2015). The most recent of these Board orders extended the Region’s filing deadline to July 22, 2015. Second Order at 3.

      On July 21, 2015, the Region provided notice to Star and the other participants in this

matter that the Region would withdraw the contested Permit conditions. These Permit provisions are: (1) the interim and final total ammonia as N concentration and mass loading effluent limits, (2) the final total residual chlorine concentration and mass loading effluent limits, and (3) Task 4 of the chlorine compliance schedule. Letter from Daniel D. Opalski, Director, Office of Water and Watersheds, U.S. EPA Region 10, to Eurika Durr, Clerk of the Board, Environmental Appeals Board, U.S. EPA, et al. (July 21, 2015). The remaining conditions in the Permit are in effect pursuant to 40 C.F.R. § 124.16(a)(2). The notice indicates that the Region will prepare a new draft permit pursuant to 40 C.F.R. § 124.6. In an unopposed motion also filed July 21, 2015, the Region requested that the Environmental Appeals Board dismiss the Petition as moot.

                                       II.     ORDER
     At any time prior to thirty days after the permit issuer’s response brief is filed, the permit

issuer may, "upon notification to the Board and any interested parties withdraw all or portions of a contested permit and prepare a new draft permit under [40 C.F.R.] § 124.6 addressing the portions so withdrawn." 40 C.F.R. § 124.19(j). Based on the explanation set forth in the Region’s July 21, 2015 notice provided in accordance with 40 C.F.R § 124.19(j), the Board dismisses the Petition as moot.

     So ordered.


                                                    ENVIRONMENTAL APPEALS BOARD¹

Dated: 7/28/15 By: [illegible]

                                                          Mary Kay Lynch
                                                      Environmental Appeals Judge

¹
The three-member panel deciding this matter consists of Environmental Appeals Judges Mary Kay Lynch, Kathie A. Stein, and Mary Beth Ward.

                                              -2-

                            CERTIFICATE OF SERVICE

   I certify that copies of the forgoing Order Dismissing Petition for Review in the matter of

Star Sewer and Water District, NPDES Appeal No. 15-07, were sent to the following persons in the manner indicated:

By First Class Certified Mail, Return Receipt Requested and Facsimile: Kevin J. Beaton Justin Hayes Stoel Rives LLP Program Director 101 S. Capitol Blvd., Suite 1900 Idaho Conservation League Boise, Idaho 83702-5958 P.O. Box 844 Telephone: (208) 389-9000 Boise, ID 83701 Facsimile: (208) 389-9040 Telephone: (208) 345-6933 ext. 24
Facsimile: (208) 344-0344
Douglas M. Conde
Deputy Attorney General
Idaho Department of Environmental Quality
1410 N. Hilton, 2nd Floor
Boise, ID 83706
Telephone: (208) 373-0494
Facsimile: (208) 373-0481

By EPA Pouch Mail and Facsimile:
Courtney Weber
Assistant Regional Counsel
U.S. Environmental Protection Agency,
Region 10
1200 Sixth Avenue, Suite 900, ORC-158
Seattle, WA 98101
Telephone: (206) 553-1477
Facsimile: (206) 553-1762

        JUL 28 2015
                                                             Annette Duncan
                                                               Secretary