American Samoa Power Authority (Board decision, January 22, 2020)

Plain-English summary

The American Samoa Power Authority petitioned for review of an NPDES permit for the Utulei Sewage Treatment Plant, which discharges wastewater into Pago Pago Harbor. EPA Region 9 withdrew challenged limits and monitoring requirements for ammonia, nitrogen, phosphorus, and chronic toxicity, along with an attachment concerning pH-dependent ammonia objectives and dilution. The Region stated that it would modify the withdrawn provisions and conduct public notice and comment under 40 C.F.R. §§ 124.6 and 124.19(j). The Board dismissed the petition under 40 C.F.R. § 124.19(j), while explaining that the Authority could petition for review of the reissued permit.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6 and 124.19(j)
• Outcome: The petition for review was dismissed after EPA Region 9 withdrew the challenged permit conditions.
• Key point: A permit petitioner may seek review of a reissued permit after the permitting region withdraws challenged conditions and follows the required public process.

Full text (EPA EAB public release)

F I L E D
Jan 22 2020

Clerk, Environmental Appeals Board

INITIALS ______

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

In re:
American Samoa Power Authority
Utulei Sewage Treatment Plant
NPDES Permit No. AS000200001

)
)
)
)
)
)
)

NPDES Appeal No. 19-07

ORDER DISMISSING PETITION FOR REVIEW
The American Samoa Power Authority petitioned for review of the National Pollutant Discharge Elimination System permit issued by U.S. EPA, Region 9, for the Power Authority’s operation of the Utulei Sewage Treatment Plant, which discharges wastewater into Pago Pago Harbor, American Samoa. Prior to filing a response to the petition, Region 9 notified the Environmental Appeals Board and the Power Authority by letter that it was withdrawing the permit conditions challenged by the Power Authority. Specifically, Region 9 stated that it was withdrawing the following contested provisions in the permit: (a) the effluent limitations in Part I, B. Effluent Limits and Monitoring Requirements Outfall Number 001, Table 1, for (1) Ammonia, total (as N), (2) Ammonia Impact Ratio, (3) Nitrogen, total (as N), (4) Phosphorous, Total, (5) Chronic Toxicity (WET) S. purpuratus, Method 1008.0 WB33L, and (6) Chronic Toxicity (WET) D. excentricus, Method 1008.0 WB33N; and (b) Attachment E (pH-Dependent Ammonia (as N) Objectives with

Dilution), which informs the ammonia effluent limits for the above parameters. U.S. EPA Region 9 Letter to the Clerk of the Environmental Appeals Board and William E.

Spitzenberg 2 (Jan. 16, 2020).
Region 9 explained that it “will modify the withdrawn provisions, as appropriate, and conduct public notice and comment consistent with 40 C.F.R. § 124.6 and 124.19(j).” Id. Simultaneous with notifying the Board that it was withdrawing the contested permit conditions, the Region, by motion, requested that the Board dismiss the Power Authority’s petition as moot. The Region states that it has contacted the Power Authority and that the Power Authority has no objection to the Region’s motion to dismiss. 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 this instance, the Region withdrew the permit prior to filing its response and notified the Board and the Power Authority 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. When the Region reissues the Power Authority’s permit, that reissued permit is subject to the requirements of part 124, including the permit appeal procedures of section 124.19. Subject to the requirements of section 124.19, the Power Authority may file a petition for review with the

-2-

Board of the reissued permit under that section, and the Power Authority must do so if it wishes to preserve the option of seeking judicial review of the Region’s new permit decision. So ordered.1

ENVIRONMENTAL APPEALS BOARD
Dated: January 22, 2020

By: ________
Mary Kay Lynch
Environmental Appeals Judge

1

The three-member panel deciding this matter is composed of Environmental Appeals Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.
-3-

CERTIFICATE OF SERVICE
I certify that copies of the Order Dismissing Petition For Review in the matter of American Samoa Power Company, NPDES Appeal No. 19-07, were sent to the following persons by email: William E. Spitzenberg American Samoan Power Authority PO Box PBB Pago Pago, American Samoa 96799 [email protected] Kimberly Wells U.S. Environmental Protection Agency, Region 9 Mail Code: ORC-2-3 75 Hawthorne St. San Francisco, CA 94105 [email protected] Courtesy Copy: Steven Neugeboren Office of General Counsel USEPA Headquarters William Jefferson Clinton Building 1200 Pennsylvania Avenue, N. W. Mail Code: 2355A Washington, DC 20460 [email protected]

Dated: January 22, 2020

Eurika Durr
Clerk of the Board