Tulalip Tribes of Washington Wastewater Treatment Plant and Lummi Tribal Sewer and Water District (Board decision, November 13, 2024)

Plain-English summary

The Northwest Environmental Advocates petitioned for review of three NPDES permit decisions issued by EPA Region 10 for wastewater treatment facilities in Washington. The Board consolidated the two petitions. Before EPA filed its response, Region 10 withdrew the three permits under 40 C.F.R. § 124.19(j) and said it would prepare new draft permits addressing the appeal issues. The Board dismissed the consolidated petitions as moot, while preserving the petitioner's right to comment on future drafts and seek review of future EPA action.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6, 124.11, and 124.19
• Outcome: The consolidated petitions were dismissed after EPA Region 10 withdrew the three challenged permits.
• Key point: Withdrawal of a permit before the agency files its response can moot an EAB petition, while leaving future draft-permit review available.

Full text (EPA EAB public release)

                                                                      F I L E D
                                                                          Nov 13, 2024
                                                                     Clerk, Environmental Appeals Board
                                                                     INITIALS ________________________

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

In re Tulalip Tribes of Washington – )
Wastewater Treatment Plant )
)
& )
)
Lummi Tribal Sewer and Water District – )
Gooseberry Point Wastewater Treatment ) NPDES Appeal Nos. 24-02 & 24-03
Plant & Sandy Point Wastewater Treatment )
Plant )
)
)
NPDES Permit Nos. WA 0024805, )
WA 0025666, WA 0025658
)

            ORDER GRANTING MOTION TO DISMISS PETITIONS

   The Northwest Environmental Advocates (“NWEA”) filed with the Environmental

Appeals Board two petitions seeking review of three NPDES permit decisions issued by

Region 10 of the U.S. Environmental Protection Agency to three different wastewater treatment

facilities located in the state of Washington—the Tulalip Tribes of Washington Wastewater

Treatment Plant (NPDES Permit No. WA0024805), Sandy Point Wastewater Treatment Plant

(NPDES Permit No. WA0025658), and Gooseberry Point Wastewater Treatment Plant (NPDES

Permit No. WA0025666). The Board granted the Region’s and NWEA’s joint motion to

consolidate the two petitions and extended the briefing schedule. Order Granting Joint Motion to

Consolidate Petitions for Review and for Extension of Time (Sept. 24, 2024). The Board

established November 7, 2024, as the deadline for the consolidated response brief; and

December 6, 2024, as the deadline for any reply brief. Id. at 2.

   On November 6, 2024, the Region filed a notice that, pursuant to 40 C.F.R. § 124.19(j),

the Region “was hereby withdrawing” the three permits at issue in this consolidated matter and
that the Region will prepare new draft permits that address the issues on appeal. Notification of

Withdrawn Permits at 2 (Nov. 6, 2024). Section 124.19(j) allows a permit issuer, upon

notification to the Board and any interested parties, to unilaterally withdraw a permit at any time

prior to thirty days after the permit issuer files its response to a petition and prepare a new draft

permit. 40 C.F.R. § 124.19(j); see also In re Savoy Energy, L.P., 17 E.A.D. 200, 201-03 (EAB

2016). Here, the Region has withdrawn the permits before the filing of its response brief and

notified the Board and all parties that it has done so and would prepare a new draft permit in

accordance with 40 C.F.R. § 124.6. Notification of Withdrawn Permits at 2. The Region

requests that the Board dismiss the petitions on the grounds that they are moot. Motion to

Dismiss at 3; Notification of Withdrawn Permits at 2.

   Given the Region’s withdrawal of the permits at issue the Board GRANTS the Region’s

motion and dismisses the consolidated petitions. 40 C.F.R. §§ 124.19(f), (n). This dismissal has

no effect on NWEA’s right to submit comments on subsequent draft permit revisions or

modifications pursuant to 40 C.F.R. § 124.11, or to petition the Board for review pursuant to 40

C.F.R. § 124.19 of any future EPA action with respect to the NPDES permits at issue here.

   So ordered. 1
                                                   ENVIRONMENTAL APPEALS BOARD
      Nov 13, 2024

Dated: ____ By: _____
Aaron P. Avila
Environmental Appeals Judge

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

Judges Aaron P. Avila, Mary Kay Lynch, and Ammie Roseman-Orr.

                                             -2-

CERTIFICATE OF SERVICE

   I certify that copies of the foregoing Order Granting Motion to Dismiss Petitions in the

matter of Tulalip Tribes of Washington & Lummi Tribal Sewer and Water District, NPDES
Appeal Nos. 24-02 & 24-03 were sent to the following persons in the manner indicated.

By Email:
Attorney for Petitioner Attorneys for EPA
James N. Saul Courtney Weber
Wild & Scenic Law Center Assistant Regional Counsel
3519 NE 15th Ave., #207 EPA Region 10
Portland, OR 97212 1200 Sixth Avenue, Suite 155, 11-C07
(503) 342-2839 Seattle, WA 98101
[email protected] (206) 553-1477
[email protected]

Attorney for Lummi Tribal Sewer and Eleanor Garretson
Water District Attorney Advisor
Philip Buri Water Law Office, Office of General Counsel
Buri Funston Mumford, PLLC 1200 Pennsylvania Ave NW
1601 F Street Mail Code: 2355A
Bellingham, WA 98225 Washington DC 20460
(360) 752-1500 (202) 564-9636
[email protected] [email protected]
[email protected]

        Nov 13, 2024

Dated: ________
Emilio Cortes
Clerk of the Board