Starkist Samoa Co. (Board decision, May 26, 2020)

Plain-English summary

EPA Region 9 issued Starkist Samoa Co. a new NPDES permit for wastewater discharges from its tuna cannery facility to Pago Pago Harbor in American Samoa. Starkist sought review of three permit conditions concerning dissolved oxygen, coral reef monitoring, and an annual priority pollutant scan. Before the Region's response was due, the Region withdrew all three challenged provisions and stated that it would address any replacement provisions through the applicable permitting and public notice process. The EAB granted the Region's motion and dismissed the petition as moot. The order does not assess a penalty.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6, 124.16(a)(2), 124.19(j), and 124.60(b)(1)
• Outcome: The petition for review was dismissed as moot after the Region withdrew the challenged permit provisions.
• Key point: An EAB permit appeal becomes moot when the permitting Region withdraws all challenged provisions before the Board decides the merits.

Full text (EPA EAB public release)

                                                                                    F I L E D
                                                                                              May 26 2020
                                                                                   Clerk, Environmental Appeals Board
                                                       INITIALS ________________________
                    ENVIRONMENTAL APPEALS BOARD
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON, D.C.


                                              )

In re: )
)
Starkist Samoa Co. ) NPDES Appeal No. 20-04
)
NPDES Permit No. AS0000019 )
)

             ORDER DISMISSING PETITION FOR REVIEW AS MOOT

      On February 26, 2020, Region 9 of the U.S. Environmental Protection Agency issued a

new final National Pollution Discharge Elimination System (“NPDES”) permit to Starkist Samoa

Co. (“Starkist”). The permit authorizes Starkist to discharge wastewater from its tuna cannery

facility to Pago Pago Harbor in American Samoa, in accordance with the terms and conditions of

the permit. On March 18, 2020, Starkist filed a motion for a thirty-day extension of time to file a

petition for review of the permit. As justification for its motion, Starkist cited business

disruptions caused by the coronavirus that greatly complicated the process of evaluating the

permit and preparing a petition for review. The Region supported Starkist’s motion. In a

March 19, 2020 order, the Board granted Starkist’s motion, extending the petition filing deadline

to April 27, 2020.

      On April 27, 2020, Starkist filed a petition for review of the new NPDES permit, seeking

review of three permit conditions: (1) the dissolved oxygen receiving water limit; (2) the

receiving water monitoring requirements at coral reef stations; and (3) an annual priority

pollutant scan. The Region’s response to the petition was due May 27, 2020.

      On May 21, 2020, the Region filed a motion seeking dismissal of the petition as moot.

With the motion, the Region submitted a letter dated May 20, 2020, in which the Region notifies
the Board, Starkist, and interested parties that it has withdrawn the three contested permit

provisions and intends to modify them, as appropriate, and conduct public notice and comment

on any new provisions consistent with 40 C.F.R. §§ 124.6 and 124.19(j).

   Specifically, the Region has withdrawn: (1) Part 1.A.3.h (dissolved oxygen

requirements); (2) Part 1.E.1.g (coral reef monitoring requirements), including the associated

map of the coral reef stations and the asterisk (*) footnote only to the Part I.E.1 table that

references sampling depth requirements for the coral reef monitoring stations; and (3) Part 1.B

table 1 (priority pollutant scan requirements). The Region clarifies that, until such time as a new

final permit is issued, the corresponding provisions from the previous permit issued to Starkist

will apply as follows: (1) Part 1.B.9 of the 2008 permit will apply in place of the withdrawn

dissolved oxygen requirement; (2) receiving water monitoring at the coral reef stations will not

be required, as no comparable provision in the 2008 permit exists; and (3) Part II.B.1 of the 2008

permit will apply in place of the withdrawn annual priority pollutant scan requirement

   The Region notes that all remaining conditions of the permit are uncontested and

severable from the contested and now-withdrawn conditions, and therefore are fully effective

thirty days after the date of the letter, pursuant to 40 C.F.R. §§ 124.16(a)(2) and 124.60(b)(1).

   The Region contends that Starkist’s petition is now moot because the Region has

withdrawn all the permit provisions that Starkist challenged. The Region notes that the

permitting regulations at 40 C.F.R. § 124.19(j) provide that, at any time prior to thirty days after

the permit issuer files its response brief, the permit issuer may withdraw portions or all of a

contested permit and prepare a new draft permit under 40 C.F.R. § 124.6 addressing the portions
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of the permit that have been withdrawn. See, e.g., In re Savoy Energy, L.P., 17 E.A.D. 200, 202-

03 (EAB 2016) (“[B]efore the 30-day window closes under section 124.19(j), a Region may

unilaterally withdraw a permit and reissue a new draft permit, so long as it contemporaneously

notifies the Board and interested parties of the withdrawal and reissuance.”). The Region reports

that it consulted with EPA’s Office of General Counsel and Office of Water in making this

decision to partially withdraw Starkist’s permit. The Region represents that Starkist supports this

motion.

     Having considered the motion and the representations therein, the Region’s motion is

hereby GRANTED and the petition for review is DISMISSED AS MOOT.

     So ordered. 1

                                                 ENVIRONMENTAL APPEALS BOARD

Dated: May 26 2020 By: ________
Kathie A. Stein
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 as Moot in the matter

of Starkist Samoa Co., NPDES Appeal No. 20-04, were sent to the following persons in the
manner indicated:

By Electronic Mail:

Scott R. Dismukes, Esq.
Eckert Seamans Cherin & Mellott, L.L.C.
600 Grant Street, 44th Floor
Pittsburgh, Pennsylvania 15219
[email protected]

Sara Goldsmith, Esq.
Office of Regional Counsel
U.S. Environmental Protection Agency Region 9
Mail Code ORC-375
75 Hawthorne Street
San Francisco, California 94105
[email protected]

Dated: ____
May 26 2020 ______
Eurika Durr
Clerk of the Board

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