Nate Pulley, d/b/a Yellow Creek Stone (Board decision, August 18, 2021)

Plain-English summary

The petition sought review of a Tennessee NPDES permit issued to Nate Pulley, doing business as Yellow Creek Stone, for a limestone mining and processing facility in Houston County, Tennessee. The permit authorized treated mine wastewater and stormwater discharges to an unnamed tributary of Yellow Creek. The Environmental Appeals Board explained that its regulations authorize review of individual permit decisions issued by EPA, not permits issued by a state under state law. Because the Tennessee Department of Environment and Conservation issued the permit, the Board dismissed the petition for lack of jurisdiction. The order directed attention to Tennessee's state appeal process and did not decide the permit's merits.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1311 and 1342; 40 C.F.R. §§ 1.25, 124.1, 124.9, 124.15, and 124.19
• Outcome: The petition was dismissed for lack of jurisdiction because the challenged permit was issued by Tennessee rather than EPA.
• Key point: The EAB's NPDES permit-review jurisdiction under 40 C.F.R. § 124.19 does not extend to state-issued permits.

Full text (EPA EAB public release)

                                                                      F I L E D
                                                                          Aug 18, 2021
                                                                     Clerk, Environmental Appeals Board
                                                                     INITIALS ________________________
                   ENVIRONMENTAL APPEALS BOARD
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C.


                                           )

In re: )
)
Nate Pulley, d/b/a Yellow Creek Stone ) NPDES Appeal No. 21-02
)
NPDES Permit No. TN0070661 )
)

                           ORDER DISMISSING PETITION
                           FOR LACK OF JURISDICTION

      On August 13, 2021, the Environmental Appeals Board (“Board”) received a document

styled as a “Third-Party Appeal” from Ms. Cindy Adkins of Cumberland City, Tennessee,

seeking review of NPDES Permit No. TN0070661. Ms. Adkins attached a supporting document

indicating that, on July 13, 2021, the Tennessee Department of Environment and Conservation

(“TDEC”) issued a final permit to Mr. Nate Pulley, doing business as Yellow Creek Stone, under

the Tennessee Water Quality Control Act of 1977. See Appeal attach. 1 (TDEC, Notice of

Determination for NPDES Permit No. TN0070661 (July 13, 2021) (“Notice of Determination”).

The final permit authorizes a new limestone mining and processing facility called the “Yellow

Creek Stone Quarry” to discharge treated mine wastewater and storm water to an unnamed

tributary of Yellow Creek in Houston County, Tennessee. See id. at 1.

      Under the Clean Water Act (“CWA”), persons who discharge pollutants from point

sources into waters of the United States must have a permit for the discharge to be lawful. CWA

§ 301, 33 U.S.C. § 1311. The National Pollutant Discharge Elimination System (“NPDES”)

program is one of the principal permitting programs under the CWA, and NPDES permits are

issued under section 402 of the CWA, 33 U.S.C. § 1342. The U.S. Environmental Protection Agency (“EPA” or “Agency”) administers the CWA and may authorize states to manage their

own permitting programs and to issue NPDES permits for discharges into navigable waters

within their boundaries. See CWA § 402(b), 33 U.S.C. § 1342(b). Such states must develop

NPDES programs in accordance with Agency requirements and obtain EPA’s approval of their

programs before they may exercise this authority. EPA approved the State of Tennessee’s

program to implement the NPDES program in 1977. See Approval of Revised NPDES

Memorandum of Agreement with Tennessee, 46 Fed. Reg. 51,644, 51,644 (Oct. 21, 1981). A

copy of the applicable NPDES Memorandum of Agreement may be accessed at

https://www.epa.gov/sites/default/files/2013-09/documents/tn-moa-npdes.pdf.

   The Board is a tribunal of limited jurisdiction, and its authority to review permit

decisions is “limited by the statutes, regulations, and delegations that authorize and provide

standards for such review.” In re Carlton, Inc., 9 E.A.D. 690, 692 (EAB 2001); accord In re

Coastal Energy Corp., NPDES Appeal No. 17-04, at 2-3 (EAB Sept. 12, 2017) (Order

Dismissing Petition for Lack of Jurisdiction); see also 57 Fed. Reg. 5320 (Feb. 13, 1992). The

Board is authorized to hear appeals of individual permit decisions issued by EPA under the

CWA at 40 C.F.R. part 124. This part provides “EPA procedures for issuing, modifying,

revoking and reissuing, or terminating all * * * NPDES ‘permits.’” 40 C.F.R. § 124.1(a). The

EPA Regional Administrators issue final permit decisions, see 40 C.F.R. § 124.15(a), and such

EPA-issued permits are in turn appealable to the Board under 40 C.F.R § 124.9(a).

   The Board acknowledges Ms. Adkins’ concern for the environment. But the Board’s

jurisdiction is circumscribed by its governing regulations and the Board’s authority to review
-2-
CWA NPDES permit decisions under 40 C.F.R. § 124.19(a) does not extend to state-issued

permits. See 40 C.F.R. § 1.25(e)(2); see also In re Simpson Paper Co., 4 E.A.D. 766, 770 (EAB

1993) (noting that Board’s jurisdiction to review NPDES permit decisions under CWA depends

on existence of EPA-issued permit); Coastal Energy, NPDES Appeal No. 17-04, at 3.

   And because the permit at issue here is a state permit issued by TDEC, the Board lacks

jurisdiction to review the permit decision under 40 C.F.R. § 124.19. Although the TDEC permit

program is federally approved, the permit at issue here is nonetheless a state permit issued under

state law. Nothing in the Clean Water Act or 40 C.F.R. part 124 gives the Board jurisdiction to

consider this appeal.

   Notably, in TDEC’s Notice of Determination regarding NPDES Permit No. TN0070661,

which Ms. Adkins included with her submission to the Board, TDEC stated the following:

       The Permit may be appealed to the Board of Water Quality, Oil and Gas
       pursuant to Tenn. Code Ann. § 69-3-105(i) and Rules of TDEC 0400-
       40-05-.12.

Notice of Determination at 9. Moreover, in a cover letter accompanying the final

permit, TDEC stated the following:

       Please be advised that a petition for permit appeal may be filed pursuant
       to T.C.A. § 69-3-105(i) by the permit applicant or by any aggrieved
       person who participated in the public comment period or gave testimony
       at a formal public hearing whose appeal is based upon any of the issues
       that were provided to the commissioner in writing during the public
       comment period or in testimony at a formal public hearing on the permit
       application.




                                           -3-

The cover letter sets forth further information regarding the appeal deadline, the state employees

to whom to send a petition for permit appeal or copies thereof, the availability of electronic

filing, and the like. This cover letter, along with NPDES Permit No. TN0070661 itself (to which

the cover letter is attached), can be found on TDEC’s Division of Water Resources website at the

following address: https://dataviewers.tdec.tn.gov/pls/enf_reports/f?p=9034:34051::::34051:

P34051_PERMIT_NUMBER:TN0070661.

     Accordingly, the Board dismisses the petition for lack of jurisdiction.

     So ordered. 1

                                                   ENVIRONMENTAL APPEALS BOARD

Dated: Aug 18, 2021 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.

                                             -4-

CERTIFICATE OF SERVICE

   I certify that copies of the Order Dismissing Petition for Lack of Jurisdiction in the

matter of Nate Pulley, d/b/a Yellow Creek Stone, NPDES Appeal No. 21-02, were sent to the following persons in the manner indicated:

By Electronic Mail:

Cindy Adkins John Blevins, Acting Regional Administrator 254 Adkins Lane U.S. Environmental Protection Agency Cumberland City, Tennessee 37050 Region 4 [email protected] 980 College Station Road
Athens, Georgia 30605
Jennifer Dodd, Acting Technical Secretary [email protected] Tennessee Department of Environment
& Conservation Leif Palmer, Regional Counsel Board of Water Quality, Oil and Gas U.S. Environmental Protection Agency William R. Snodgrass TN Tower Region 4 312 Rosa L. Parks Avenue, 12th Floor 61 Forsyth Street, S.W. Nashville, Tennessee 37243-1102 Atlanta, Georgia 30303 [email protected] [email protected]

Jenny Howard, General Counsel
Office of General Counsel
William R. Snodgrass TN Tower
312 Rosa L. Parks Avenue, 2nd Floor
Nashville, Tennessee 37243-1102
[email protected]

Nate Pulley, Owner
Nate Pulley d/b/a Yellow Creek Stone
337 Huff Hollow Lane
Tennessee Ridge, Tennessee 37178
[email protected]

     Aug 18, 2021

Dated: ____ ______
Emilio Cortes
Clerk of the Board