Arizona Public Service Co. (Board decision, February 12, 2019)

Plain-English summary

The Dine’ Citizens Against Ruining the Environment, San Juan Citizens Alliance, Amigos Bravos, Center for Biological Diversity, and Sierra Club petitioned for review of an NPDES permit issued to Arizona Public Service Co. EPA Region 9 later withdrew the entire permit and notified the Board that it would prepare a new draft permit. Because the challenged permit was withdrawn, the EAB dismissed the petition as moot. The dismissal did not prevent the petitioners from commenting on a later draft or petitioning for review of future EPA action concerning the permit.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6, 124.11, and 124.19, including § 124.19(j)
• Outcome: The petition for review was dismissed as moot after EPA withdrew the permit.
• Key point: Withdrawal of an entire permit under 40 C.F.R. § 124.19(j) can make an existing EAB petition moot, while preserving rights concerning a later draft permit.

Full text (EPA EAB public release)

F I L E D
Feb 12 2019
Clerk, Environmental Appeals Board

INITIALS ______

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

In re:
Arizona Public Service Co.
NPDES Permit No. NN0000019

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NPDES Appeal No. 18-02

ORDER DISMISSING PETITION FOR REVIEW AS MOOT
On December 19, 2018, the U.S. Environmental Protection Agency Region 9 (“Region”) filed a notice of permit withdrawal and a motion to dismiss as moot the Petition for Review filed by Dine’ Citizens Against Ruining the Environment, San Juan Citizens Alliance, Amigos Bravos, Center for Biological Diversity, and Sierra Club (collectively, “Petitioners”). See Notice of Withdrawal Pursuant to 40 C.F.R. § 124.19(j) (Dec. 19, 2018); Region IX’s Motion to Dismiss (Dec. 19, 2018) (“Motion”). The Region stated that the permittee, Arizona Public Service Company (“APS”), did not oppose the Region’s motion to dismiss, and that the Petitioners expressed no position at that time. Motion at 3. On January 31, 2019, the Environmental Appeals Board (“Board”) issued an order granting Petitioners and APS leave to file a response, if any, to the Region’s motion dismiss no later than February 7, 2019. Order Regarding Response to Region’s Motion to Dismiss (Jan. 31, 2019). The Board did not receive a response from either the Petitioners or APS. In its motion, the Region stated that the Petition for Review is moot because the Region has withdrawn the entire Permit pursuant to 40 C.F.R. § 124.19(j). Motion at 1, 2. Section 124.19(j) allows a permit issuer to unilaterally withdraw a permit at any time prior to thirty days after filing the response to a petition and re-issue a new draft permit, so long as it

contemporaneously notifies the Board and interested parties of the withdrawal and reissuance. In re Savoy Energy, L.P., 17 E.A.D. 200, 202-03 (EAB 2016). In this instance, the Region withdrew the permit prior to filing its response and notified the Board and parties that it had done so and would prepare a new draft permit in accordance with 40 C.F.R. § 124.6. Thus, the Region’s withdrawal of the permit comports with the requirements set forth in 40 C.F.R.
§ 124.19(j).
Pursuant to 40 C.F.R. § 124.19(j), the Petition for Review is hereby dismissed. This dismissal has no effect on the Petitioners’ right to submit comments on subsequent draft permit revisions or modifications pursuant to 40 C.F.R. § 124.11, or to petition the Board for review pursuant to 40 C.F.R. § 124.19 of any future EPA action with respect to NPDES Permit No. NN0000019. So ordered.1 ENVIRONMENTAL APPEALS BOARD

Dated:

February 12, 2019

By: ________
Mary Beth Ward
Environmental Appeals Judge

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

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CERTIFICATE OF SERVICE
I certify that copies of the foregoing Order Dismissing Petition for Review as Moot in the matter of Arizona Public Service Co., NPDES Appeal No. 18-02, were sent to the following persons in the manner indicated: By E-mail: John Barth Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 [email protected] Attorney for Petitioners

Kerry McGrath
Hunton Andrews Kurth LLP
2200 Pennsylvania Avenue, NW
Washington, DC 20037
(202) 955-1519
[email protected]
Attorney for Arizona Public Service Co.

Thomas M. Hagler
Office of Regional Counsel
EPA Region 9 (MC ORC-2)
75 Hawthorne Street
San Francisco, CA 94105
(415) 972-3945
[email protected]
Attorney for EPA Region 9

Brent A. Rosser
Hunton Andrews Kurth LLP
Bank of America Plaza, Suite 3500
101 South Tryon Street
Charlotte, NC 28280
(704) 378-4707
[email protected]
Attorney for Arizona Public Service Co.

Elise O’Dea
Water Law Office
EPA Office of General Counsel
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
(202) 564-4201
[email protected]
Of Counsel for EPA Region 9

Shiloh Hernandez
Andrew Hawley
Western Environmental Law Center
103 Reeder’s Alley
Helena, MT 59601
(406) 204-4861
[email protected]
[email protected]
Attorneys for Petitioners

Dated:

February 12, 2019

Annette Duncan
Administrative Professional