Town of Amherst, Massachusetts (Board decision, December 15, 2023)

Plain-English summary

The Town of Amherst, Massachusetts, challenged an NPDES permit provision governing E. coli effluent limits and monitoring during March. The town argued that EPA Region 1 had not provided notice and an opportunity to comment on those requirements. Region 1 withdrew the contested provision and said it would prepare a new draft permit subject to notice and comment. The Board granted the motion to dismiss and dismissed the petition as moot on December 15, 2023.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6, 124.10, and 124.19(j)
• Outcome: The petition for review was dismissed as moot after EPA Region 1 withdrew the contested permit provision.
• Key point: Withdrawal of the only contested permit provision can eliminate the live dispute and end an EAB permit appeal.

Full text (EPA EAB public release)

                                                                                   F I L E D
                                                                                       Dec 15, 2023
                                                                                  Clerk, Environmental Appeals Board
                                                                                  INITIALS ________________________
                   ENVIRONMENTAL APPEALS BOARD
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C.


                                            )
                                            )

In re Town of Amherst, Massachusetts ) NPDES Appeal No. 23-05
)
NPDES Permit No. MA0100218 )
)
)

                  ORDER DISMISSING PETITION FOR REVIEW

     The Town of Amherst, Massachusetts, petitioned the Environmental Appeals Board

(“Board”) to review a National Pollutant Discharge Elimination System (“NPDES”) permit that

EPA Region 1 issued to it authorizing the discharge of treated wastewater into the Connecticut

River. The petition for review challenged a permit provision that contained E. coli effluent limit

and monitoring requirements from March 1 through October 31, arguing that the Region failed to

provide notice and an opportunity to comment on the requirements applying during the month of

March.

     On December 12, 2023, the Region filed a motion to dismiss the petition as moot,

explaining that the Region had withdrawn, pursuant to 40 C.F.R. § 124.19(j), the sole contested

permit provision. EPA Region 1 Motion to Dismiss Petition for Review as Moot (Dec. 12, 2023)

(“Motion”); see Region 1, U.S. EPA, Notice of Permit Provision Withdrawal & Notice of

Uncontested and Severable Permit Conditions, Town of Amherst Wastewater Treatment Plant

NPDES Permit No. MA0100218 (Dec. 6, 2023) (stating “the Region hereby withdraws the E. coli

effluent limit and monitoring requirements during the month of March contained in the Final

Permit at Part I.A.1.”). The Region further explained that it will “prepare a new draft permit under 40 C.F.R. § 124.6” addressing the withdrawn “contested Permit provisions,” and that “the

new draft provisions will be subject to notice” and comment pursuant to 40 C.F.R. § 124.10.

Motion at 2-3. According to the Region’s motion, the Town of Amherst does not oppose the

motion to dismiss. Id. at 3.

   Having considered the motion to dismiss and the representations contained therein, the

motion is GRANTED and the petition for review is DISMISSED.

   So ordered.1


                                               ENVIRONMENTAL APPEALS BOARD

Dated: December 15, 2023 By: ________
Wendy L. Blake
Environmental Appeals Judge

   1
    The three-member panel deciding this matter is composed of Environmental Appeals

Judges Aaron P. Avila, Wendy L. Blake, and Mary Kay Lynch.

                                         -2-

CERTIFICATE OF SERVICE

   I certify that copies of the foregoing Order Dismissing Petition for Review in the matter

of Town of Amherst, Massachusetts, NPDES Appeal No. 23-05, were sent to the following persons in the manner indicated:

By Email:

Megan Edwards, Esq. Kenneth Moraff U.S. Environmental Protection Agency Director, Water Division Office of Regional Counsel, Region 1 U.S. Environmental Protection Agency, 5 Post Office Square Region 1 Boston, MA 02109 5 Post Office Square [email protected] Boston, MA 02109
[email protected]
Guilford Mooring
Superintendent Michele Duspiva Amherst Public Works Department U.S. Environmental Protection Agency, 586 South Pleasant Street Region 1 Amherst, MA 01002 5 Post Office Square [email protected] Boston, MA 02109
[email protected]
Lealdon Langley
MassDEP Division of Watershed Jennifer Wood Management MassDEP Department of Environmental Protection 100 Cambridge Street, Suite 900 Commonwealth of Massachusetts Boston, MA 02114 One Winter Street [email protected] Boston, MA 02108-4746 [email protected] Matthew Sokop
Section Chief Water Pollution Control
MassDEP
Western Region
436 Dwight Street
Spring, MA 01103
[email protected]

      Dec 15, 2023

Dated: ____ ______
Annette Duncan
Administrative Specialist