City of Nezperce, Idaho (Board decision, September 30, 2019)

Plain-English summary

The City of Nezperce sought review of an NPDES permit for its wastewater treatment plant. The City objected to effluent limitations for total ammonia and argued that the permit did not include a compliance schedule or adequately address the City's comments. EPA Region 10 asked the EAB to remand the permit so it could reconsider whether to include a compliance schedule for the new ammonia limits. The Board found good cause and administrative efficiency supported the request, granted voluntary remand, and dismissed the appeal. The Region was to issue a new final permit decision, which could be challenged in a later petition.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.15(a), § 124.17(a), § 124.19(a), and § 124.19(j)
• Outcome: The permit was remanded to EPA Region 10 for reconsideration, and the petition was dismissed.
• Key point: The EAB may grant voluntary remand when a permitting authority shows good cause to reconsider permit conditions and remand serves administrative efficiency.

Full text (EPA EAB public release)

                                                                              F I L E D
                                                                                           Sep 30 2019
                                                                             Clerk, Environmental Appeals Board
                                                                             INITIALS ________________________
                    ENVIRONMENTAL APPEALS BOARD
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON, D.C.


                                               )

In re: )
)
City of Nezperce, Idaho ) NPDES Appeal No. 19-02
)
NPDES Permit No. ID0020397 )
)

ORDER GRANTING UNOPPOSED MOTION FOR VOLUNTARY REMAND AND
DISMISSING PETITION FOR REVIEW

      On July 25, 2019, the City of Nezperce, Idaho (“City”) filed a petition before the

Environmental Appeals Board (“Board”) seeking review of a National Pollution Discharge

Elimination System (“NPDES”) permit, governing discharges from the City’s wastewater

treatment plant, issued by U.S. EPA Region 10 (“Region”). In its petition, the City objected to a

permit provision including effluent limitations for total ammonia. See Petition for Review

at 5-14. In particular, the City argued that the Region erred by failing to include a compliance

scheduled for the permit’s ammonia limitation or to respond to the City’s comments regarding a

compliance schedule. Id. On August 20, 2019, the Board, at the request of the Region and the

Office of General Counsel, issued an order extending the deadline for the Region to file a

response to the petition until September 30, 2019. See Order Granting Unopposed Motion for

Extension of Time to File Response.

      On September 27, 2019, the Region filed a motion requesting that the Board remand the

Permit back to the Region “without prejudice to allow the Region to reconsider whether to

include a compliance schedule for the new ammonia limits in the permit.” EPA Region 10’s

Motion for Voluntary Remand (“Motion”) at 3; see 40 C.F.R § 124.19(j) (allowing the Region to

withdraw a permit “at any time prior to 30 days after [the Region] files its response to the

petition for review”). The Region represents that the City does not oppose the Motion. Motion

at 3.

    The Board has broad discretion to grant a remand request, and we have held that “‘[a]

voluntary remand is generally available where the permitting authority has decided to make a

substantive change to one or more permit conditions, or otherwise wishes to reconsider some

element of the permit decision before reissuing the permit.’” In re Desert Rock Energy Co., 14

E.A.D. 484, 493 (EAB 2009) (quoting In re Indeck-Elwood, LLC, PSD Appeal No. 03-04, at 6

(EAB May 20, 2004) (Order Denying Respondent’s Motion for Voluntary Partial Remand and

Staying the Board’s Decision on the Petition for Review)). As the Board has emphasized, it

“typically grants a motion [for remand] where the movant shows good cause for its request

and/or granting the motion makes sense from an administrative or judicial efficiency standpoint.”

Id. at 497; accord In re Windfall Oil & Gas, Inc., UIC Appeal Nos. 14-04 through 14-62, at 2

(EAB June 10, 2014) (Order Granting Motion for Voluntary Remand to Allow Reconsideration

of Permit Decision).

    Here, the Region has shown good cause for its request. The Region has clearly expressed

its intent to reconsider its final permit decision related to the ammonia limitation. See Motion

at 2-3. In addition, administrative efficiency will be served by allowing the Region to reconsider

its decision and correct any errors. Moreover, the City does not oppose the motion. For these

reasons, the Board concludes that remand for reconsideration of the permit decision is

appropriate in this case. The Board therefore GRANTS the Region’s Motion for Voluntary

Remand and hereby DISMISSES NPDES Appeal No. 19-02.

    After reconsideration on remand, under the part 124 permitting regulations the Region

will issue a new final permit decision. See 40 C.F.R. §§ 124.15(a), .17(a). The City may file a

petition under 40 C.F.R. § 124.19(a) with the Board challenging the new final permit decision,

and it must do so if it wishes to preserve the option of seeking judicial review of EPA’s final

action. 1

    So ordered. 2



                                                  ENVIRONMENTAL APPEALS BOARD

Dated: September 30, 2019 By: _____
Kathie A. Stein
Environmental Appeals Judge

    1
     In any petition for review filed after the issuance of a new permit decision, the City will

be able both to reassert issues already raised in its current petition and to assert objections based on any changes made to the permit decision on remand. Petitioners other than the City, however, will be able to petition the Board for review of the new permit determination only to the extent of any changes made on remand. See 40 C.F.R. § 124.19(a).
2
The three-member panel deciding this matter consists of Environmental Appeals Judges
Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.

                          CERTIFICATE OF SERVICE

   I hereby certify that copies of the foregoing Order Granting Unopposed Motion for

Voluntary Remand and Dismissing Petition for Review in the matter of City of Nezperce, Idaho, NPDES Appeal No. 19-02, were sent to the following persons in the manner indicated:

By U.S. First Class Mail, Return Receipt Requested:

Fredric P. Andes
Erika K. Powers
Barnes & Thornburg LLP
I North Wacker Drive, Suite 4400
Chicago, IL 60606
[email protected]

By Pouch Mail:

Courtney Weber
Assistant Regional Counsel
U.S. Environmental Protection Agency, Region 10
1200 Sixth Street, Ste. 155
Mail Code: 11-C07
Seattle, WA 98101
Email: [email protected]

By Inter-Office Mail:

James Curtin
Office of General Counsel
US EPA
Mail Code: 2355A
1200 Pennsylvania Ave. NW
Washington, DC 20460
[email protected]

Dated: September 30, 2019 ______
Annette Duncan
Administrative Specialist