Keolis Commuter Services, LLC (Board decision, October 24, 2018)

Plain-English summary

Keolis Commuter Services, LLC, the Massachusetts Bay Transportation Authority, and the Delaware North Corporation were co-permittees on an NPDES permit authorizing discharge from the North Station Railroad Terminal to the Charles River. Keolis petitioned the EAB to review the permit. EPA Region 1 withdrew Section I.B.9, the only contested condition, and began a new draft-permit proceeding. Because the contested issue was withdrawn, the Board dismissed the petition as moot. Keolis retained the right to comment on the draft modification or seek Board review of a final modification.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6 and 124.19, including § 124.19(j)
• Outcome: EPA's withdrawal of the contested permit condition made the issue moot, and the petition was dismissed.
• Key point: EPA may withdraw a contested permit provision and begin a new draft-permit proceeding, making the existing appeal moot while preserving review rights for the later action.

Full text (EPA EAB public release)

F I L E D
Oct 24 2018

Clerk, Environmental Appeals Board

INITIALS ______

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

In re:
Keolis Commuter Services, LLC,
NPDES Permit No. MA0028941

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NPDES Appeal No. 18-03

ORDER DISMISSING PETITION FOR REVIEW AS MOOT
Keolis Commuter Services, LLC (“Keolis”) petitioned the Environmental Appeals Board (“Board”) on July 18, 2018, to review a National Pollution Discharge Elimination System Permit issued by Region 1 of the U.S. Environmental Protection Agency. Petition for Review of NPDES Permit No. MA0028941 (July 18, 2018) (“Petition for Review”). The Permit authorized Keolis, the Massachusetts Bay Transportation Authority, and the Delaware North Corporation, as co-permittees, to discharge from an outfall at the North Station Railroad Terminal to the Charles River. Id. at 1. The Board stayed this proceeding until November 13, 2018, in response to a joint motion to stay these proceedings. Order Granting Joint Motion for Stay of Proceedings at 1 (Aug. 15, 2018). The Region has now filed with the Board a Motion to Dismiss as Moot the above-captioned Petition for Review pursuant to 40 C.F.R. § 124.19(j). Assented-To Motion to Dismiss the Petition for Review as Moot at 2 (Oct. 19, 2018) (“Motion to Dismiss”). As grounds for the requested dismissal, the Region notes that, under 40 C.F.R.
§ 124.19(j), at any time prior to thirty days after the Region files its response to a petition and upon notification to the Board, the Regional Administrator may withdraw portions or all of a contested permit and prepare a new draft permit under 40 C.F.R. § 124.6 addressing the withdrawn portions of the permit. Motion to Dismiss at 1-2. The Region has not yet filed a

Response in this matter and on October 15, 2018, the Region filed a notice with the Board that the Region is withdrawing Section I.B.9 of the Permit (the only contested permit condition, Petition for Review at 1) and commencing a new draft permit proceeding under 40 C.F.R.
§ 124.6. Notice of Partial Withdrawal Pursuant to 40 C.F.R. § 124.19(j) at 2-3 (Oct. 15, 2018) (“Notice of Partial Withdrawal”); see also Motion to Dismiss at 2. Consequently, the Region contends that the issue presented in the Petition for Review is now moot and the Petition should be dismissed. Motion to Dismiss at 2. The Region also states that “dismissal of this issue would have no effect on Keolis’s right to submit comments on the draft permit modification or to seek Board review of any final modification of [the permit], in accordance with 40 C.F.R. § 124.19.” Id. Finally, the Region represents that Keolis assents to the Motion to Dismiss. Id. Having considered the Motion to Dismiss and the representations therein as well as the Notice of Partial Withdrawal, the Region’s Motion to Dismiss is GRANTED and the Petition for Review is DISMISSED as moot.

So ordered.
ENVIRONMENTAL APPEALS BOARD1

Dated:

October 24, 2018

By: ________
Aaron P. Avila
Environmental Appeals Judge

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The three-member panel deciding this matter is composed of Environmental Appeals Judges Aaron P. Avila, Kathie A. Stein, and Mary Beth Ward.
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CERTIFICATE OF SERVICE
I hereby certify that copies of the forgoing Order Dismissing Petition for Review as Moot in the matter of Keolis Commuter Services, LLC, NPDES Appeal No. 18-03, were sent to the following persons in the manner indicated: By E-mail: Eric L. Klein, Esq. Beveridge & Diamond, P.C. 15 Walnut Street, Suite 400 Wellesley, MA 02481 (781) 416-5700 [email protected] Joshua Secunda Assistant Regional Counsel U.S. Environmental Protection Agency 5 Post Office Square, Suite 100 Mail code: ORC 04-6 Boston, MA 02109-3912 (617) 918-1736 [email protected]

Dated:

October 24, 2018

Eurika Durr
Clerk of the Board

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