Buckeye Florida, L.P.

Plain-English summary

Buckeye Florida operated a pulp and paper mill in Perry, Florida, under an NPDES permit. Help Our Polluted Environment petitioned for review of a presiding officer's decision concerning an evidentiary hearing on the permit. The permit expired while the petition was pending, and the agreement transferring NPDES authority to Florida provided that jurisdiction would transfer when the permit expired. The EAB granted EPA Region IV's unopposed motion and dismissed the petition as moot without reaching the merits.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.91 and 40 C.F.R. § 122.6(d).
• Outcome: The petition for review was dismissed as moot after the permit expired.
• Key point: Expiration of the permit transferred authority over the unresolved administrative challenge to Florida under the governing memorandum of agreement.

Full text (EPA EAB public release)

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

In the Matter of:

Buckeye Florida, L.P. ) NPDES Appeal No. 97-2
)
Permit No. FL0000876 )

          ORDER DISMISSING PETITION FOR REVIEW

 On July 10, 1997, U.S. EPA Region IV filed a motion to

dismiss the petition for review in the above-captioned matter on
the grounds that the issues raised in that petition have become
moot by the expiration of the permit underlying the petition. By
this order, we are granting that motion.
Buckeye Florida, L.P. ("Buckeye") operates a pulp and paper
mill in Perry, Florida, that discharges wastewater into the
Fenholloway River under an NPDES permit issued to it by the
Region. In the course of the most recent renewal of the permit,
a citizens' group entitled Help Our Polluted Environment ("HOPE")
requested and was granted an evidentiary hearing on the permit.
On March 17, 1997, the presiding officer granted the Region's
"Motion for Summary Determination" on the issues raised by HOPE's
evidentiary hearing request. On April 2, 1997, HOPE filed a
petition for review of the presiding officer's decision with this
Board, pursuant to 40 C.F.R. § 124.91.

 The permit at issue, by its own terms, expired on June 30,

1997, shortly after this petition for review was filed. On May
1, 1995, while the most recent permit renewal process was
proceeding, the Region transferred to the State of Florida the
authority to issue NPDES permits. The agreement between the
Region and the State of Florida effecting this transfer provides
that:

    For permits for which an evidentiary hearing has been
    requested at the time of program authorization [at the
    time of the transfer of authority], EPA will retain
    full jurisdiction until that matter has been resolved.
    Upon resolution of the administrative challenge or
    expiration of the permit, EPA will notify [the State of
    Florida] and the permittee that full jurisdiction of the
    permit has been transferred to the [State of Florida].

Memorandum of Agreement at D-7 (emphasis added).

    The Region acknowledges that until the State of Florida

issues an NPDES permit to this facility, the terms and conditions
of the expired EPA-issued NPDES permit continue to govern
Buckeye's discharge under 40 C.F.R. § 122.6(d) and § 62-
20.100(2) (k)3 Fla. Admin. Code (FAC) (1996), but nevertheless
argues that the issues raised in the petition for review have
become moot because upon the expiration of the permit, the
authority to address these issues transferred to the State of
Florida pursuant to the Memorandum of Agreement cited above.

    Counsel for HOPE, in a telephone conversation with counsel

for this Board on July 14, 1997, explained that it would not be
filing a response to the Region's motion, and had no grounds to
object to the motion.

    In light of the apparent lack of opposition to the Region's

motion to dismiss, the motion is hereby granted. The petition
for review in the above-captioned matter is dismissed on the
grounds that the issues raised therein have become moot by the
expiration of the permit under the Memorandum of Agreement
between the Region and the State of Florida.

 So ordered.

                          ENVIRONMENTAL APPEALS BOARD

Dated: JUL 16 1997 By: [illegible signature]
Edward E. Reich
Environmental Appeals Judge

                                CERTIFICATE OF SERVICE

              I hereby certify that copies of the foregoing Order
         Dismissing Petition for Review in the matter of Buckeye Florida,
         L.P., NPDES Appeal No. 97-2 were served upon the following
         persons in the manner indicated:

         By Fax and                     Kevin B Smith
         First Class Mail,              Associate Regional Counsel
         Postage Prepaid:               U.S. EPA Region IV
                                        61 Forsyth St., S.W.
                                        Atlanta, GA 30303
                                        Fax: 404-562-9486

                                        David Ludder, Esq.
                                        1951 N. Meridian Road
                                        Suite 76
                                        Tallahassee, FL 32303
                                        Fax: 904-224-1275


         Dated:   JUL 16 1997              [illegible signature]
                                              Mildred T. Johnson
                                                    Secretary