Sterling Suffolk Racecourse, LLC (Board decision, July 22, 2016)

Plain-English summary

Sterling Suffolk Racecourse, LLC challenged conditions in the NPDES permit for Suffolk Downs, a horseracing facility in Revere and East Boston, Massachusetts. The parties reached a settlement covering a draft permit modification, and EPA Region 1 agreed to publish the draft and accept public comment. The Board allowed the petition to be withdrawn, remanded the permit to the Region, and dismissed the appeal with prejudice. A new petition could be filed after the remand proceedings if the Region's new permit decision remained contested.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19(a), (j), (k), (l)(2)(iii), and (n); 40 C.F.R. § 1.25(e)(1)
• Outcome: The petition was withdrawn, the permit was remanded to EPA Region 1, and the appeal was dismissed with prejudice.
• Key point: A settlement that leads to a draft permit modification can support withdrawal and dismissal while the permit returns to the Region for further proceedings.

Full text (EPA EAB public release)

F I L E D

JUL 22 2016

Clerk, Environmental Appeals Board
INITIALS [illegible]

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

In re:

Sterling Suffolk Racecourse, LLC

NPDES Appeal No. 15-12

NPDES Permit No. MA0040282

ORDER DISMISSING PETITION FOR REVIEW

Sterling Suffolk Racecourse, LLC, (“Sterling Suffolk”) filed a Petition for Review

(“Petition”) with the Environmental Appeals Board (“Board”) requesting review of certain

conditions of the National Pollutant Discharge Elimination System Permit (“Permit”) issued by

EPA Region 1 (“Region”). The Permit authorizes discharges into the Sales Creek and adjacent

wetlands from Suffolk Downs, a horseracing facility located in Revere and East Boston, MA.

Shortly after the Petition was filed, the parties informed the Board that they were actively

involved in settlement discussions. The Board subsequently granted several joint requests by the

parties to stay this matter so that those discussions could take place and required the parties to

submit periodic status reports regarding progress toward settlement.

The parties have now informed the Board that they have reached a settlement agreement

that resolves the Petition in its entirety. Specifically, the parties have agreed to the form and

contents of a draft Permit modification, and the Region has agreed to publish the draft Permit

modification and accept public comment in accordance with 40 C.F.R. § 124.19(j). In light of

this settlement agreement, Sterling Suffolk requests leave to withdraw the Petition, and the

parties jointly request dismissal of the Petition pursuant to 40 C.F.R. § 124.19(k).

The Board first takes this opportunity to note that the parties filed the last two status

reports late, and as to one of them, only after prompting by the Board that the report was past

due. The Board directs the parties to comply with the Board’s orders in any future appeals.

As to the parties’ requests, allowing the Region to proceed with a draft permit

modification will serve administrative efficiency. 40 C.F.R. § 124.19(n). Accordingly, the

Board grants the request to withdraw the Petition, remands the Permit to the Region, and

DISMISSES NPDES Appeal No. 15-12 with prejudice. Sterling Suffolk may file a petition for

review with the Board under 40 C.F.R. § 124.19(a) challenging the Region’s new permit

decision after completion of the proceedings on remand, and it must do so if it wishes to preserve

the option of seeking judicial review of the Region’s new permit decision.¹

So ordered.²

ENVIRONMENTAL APPEALS BOARD

Dated: July 22, 2016

By: [signature]
Mary Beth Ward
Environmental Appeals Judge

¹ The Board directs that an appeal to the Board following the Region’s decision on remand is
required to exhaust administrative remedies before EPA. 40 C.F.R. § 124.19(l)(2)(iii).

² The three-member panel deciding this matter consists of Environmental Appeals Judges Mary
Kay Lynch, Kathie A. Stein, and Mary Beth Ward. 40 C.F.R. § 1.25(e)(1).

CERTIFICATE OF SERVICE

I certify that copies of the foregoing Order Dismissing Petition for Review in the matter of
Sterling Suffolk Racecourse, LLC, NPDES Appeal No. 15-12, were sent to the following persons
in the manner indicated:

By First Class Mail:

Michael D. Vhay, Esq.
Valerie A. Moore, Esq.
FERRITER, SCOBBO & RODOPHELE, PC
125 High Street, 26th Floor
Boston, MA 02110

By EPA Pouch Mail:

Samir Bukhari
George Utting (Of Counsel)
Office of Regional Counsel, Region 1
US Environmental Protection Agency
5 Post Office Square, Suite 100
Mail Code: ORA 18-1
Boston, MA 02109-3912

Dated: July 22, 2016

[signature]
Annette Duncan
Secretary, Environmental Appeals Board