Arizona Municipal Storm Water NPDES Permits for City of Tucson, Pima County, City of Phoenix, City of Mesa, and City of Tempe (Board decision, March 25, 1999)

Plain-English summary

Defenders of Wildlife and the Sierra Club challenged modified stormwater permits for municipal separate storm sewer systems serving Tucson, Pima County, Phoenix, Mesa, and Tempe, Arizona. The parties entered a consent agreement under which EPA Region IX would evaluate pollution-reduction estimates and post-construction stormwater controls. The Board concluded that the Region was addressing the concerns raised and that the agreed actions made the petition issues moot. It remanded the permit modifications for continued regional action and dismissed the petition without imposing additional deadlines or retaining oversight.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 122.26, 122.62, and 124.6.
• Outcome: Permit modifications remanded to EPA Region IX for continued action, and petition dismissed as moot.
• Key point: A remand can resolve a permit challenge when the agency’s agreed corrective actions make the petition issues moot.

Full text (EPA EAB public release)

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

)
In re: )
)
Arizona Municipal Storm )
Water NPDES Permits for City )
of Tucson, Pima County, City )
of Phoenix, City of Mesa, ) NPDES Appeal No. 98-5
and City of Tempe
)
)
Permit Nos. AZS000001, )
AZS000002, AZS000003, )
AZS000004, and AZS000005 )
)

ORDER DISMISSING PETITION

In a petition filed with the Board on July 29, 1998, the

Defenders of Wildlife and the Sierra Club ("petitioners") seek

review from the denial of their evidentiary hearing request on

certain issues related to U.S. EPA Region IX’s issuance of

five modified National Pollutant Discharge Elimination System

("NPDES") permits on April 21, 1997. See Notice of Appeal and

Petition for Review ("petition") at 2. The original permits,

issued on February 14, 1997, authorize storm water discharges

from the municipal separate storm sewer systems ("MS4s") of

the City of Tucson, Pima County, the City of Phoenix, the City

of Mesa, and the City of Tempe ("permittees"). The

modifications require, among other things, that: 1) the

permittees submit estimates of pollutant load reductions to

waters of the U.S. expected from the implementation of their

storm water management programs; and 2) Pima County and the
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City of Tucson submit proposals within 6 months of the

effective date of the modifications, for post-construction

storm water pollution control measures for new developments

and significant redevelopments proposed within their

jurisdiction.

According to petitioners, these modifications are

insufficient to ensure compliance with the Clean Water Act and

its implementing regulations. In particular, with regard to

the requirement that the permittees submit pollution reduction

estimates, petitioners assert that the modifications are

flawed because they do not provide for further action by EPA

in response to the estimates. Petition at 5. To correct this

alleged deficiency, petitioners state:

[T]he permit modification must be supplemented as follows: a) Within 60 days after submission of the pollution reduction estimates, EPA must determine whether those estimates are based on sound technical analysis. If EPA determines that the estimates are not reliable, EPA will make its own pollution reduction estimate based on the available data; b) If the permittees’ or EPA’s estimate shows that the storm water management program will not assure reductions to the [maximum extent practicable ("MEP")] standard, then EPA must either deny the permit or modify it within 60 days to require additional pollution reduction measures as necessary to meet the MEP standard.

Petition at 6. With respect to the permit modifications

requiring that Pima County and the City of Tucson submit storm

water pollution control measures, petitioners argue that in

order to comply with the Clean Water Act, "[t]he permits must
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go further and set deadlines for incorporation of the control

measures into the permits, and for permittee compliance

therewith." Id. at 7.

By submission filed with the Board on November 20, 1998,

the Region and petitioners ("the parties") informed the Board

that they had reached a settlement reflected in a signed

Consent Agreement purporting to resolve this matter. Notice

of Filing of Consent Agreement, Request for Stay Order

("Notice"). According to the parties:

The Consent Agreement provides that the Region will determine whether the estimates in pollution loading reductions that the permittees are required to provide to EPA Region 9 pursuant to the permit modifications at issue in this proceeding * * * indicate that the existing storm water management programs ("SWMPs") required by the permits are adequate to reduce the permittees’ discharge of pollutants to the maximum extent practicable in accordance with 40 C.F.R. § 122.26(d)(iv) ("the MEP standard"). If the Region determines based on pollution reduction estimates that the SWMPs are not adequate, the Region is required to modify the permits in issue to address the deficiencies in the SWMPs according to specified deadlines [(within 90 days of receipt of the permittees’ pollution reduction estimates)]. The Consent Agreement further provides that the Region will adhere to specified deadlines for modifying the City of Tucson[‘s] * * * and Pima County[‘s] * * * NPDES permits to include the post-construction storm water control measures that Tucson and Pima are required to provide to EPA Region 9 pursuant to the permit modifications at issue in this appeal.

Notice at 2. The parties further stated that the Board should

stay all proceedings in this matter to allow the Region

sufficient time to carry out its obligations under the
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Agreement. At the same time, the parties urged the Board to

retain jurisdiction over the appeal in the event the Region

did not comply with the Consent Agreement.

By Order dated December 22, 1998, the Board declined to

retain jurisdiction over the appeal. Order Dismissing

Petition for Review ("Dismissal Order"). We stated that the

Board’s role in this proceeding is neither to approve nor

enforce the Consent Agreement but only to determine what

action was appropriate regarding the petition before us. Id.

at 6. Because the parties agreed that if the Consent

Agreement were carried out all issues raised in the petition

for review would be moot, we dismissed the petition for

review. Because this dismissal rendered a provision of the

Consent Agreement ineffective, however, we gave petitioners

ten days to cancel the Agreement and reinstate their petition

for review. Id. at 7.

By joint motion dated January 2, 1999, the parties

requested that the Board amend the December 22 Dismissal Order

to include the following sentence: "Dismissal of the petition

for review is without prejudice to petitioners’ right to

request reinstatement of the appeal if the Region fails to

comply with the Consent Agreement." Joint Motion to Modify

Dismissal Order and Petitioners’ Motion in the Alternative to

Reinstate Appeal ("Joint Motion"). The Joint Motion further
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stated that if the Board declines to amend the dismissal order

"Petitioners hereby move in the alternative that their

petition for review be reinstated." Joint Motion at 2. By

order dated January 20, 1999, the Board denied the parties’

request to modify the December 22 Dismissal Order, stating

again that the Board will not serve as the overseer of the

parties’ Consent Agreement. Order Denying Motion to Modify

Dismissal Order and Granting Motion to Reinstate Petition for

Review. The Board granted petitioners’ request that the

petition be reinstated and ordered the Region to file a

response to the petition by March 1, 1999.

By submission received on March 1, 1999, the Region

states that it is currently complying with the terms of the

Consent Agreement and addressing the concerns raised in the

petition for review.1 Thus, "[r]ather than vigorously defend

the permit modifications, * * * the Region voluntarily moves

the Board to remand the modified permits and dismiss [the

petition for review]." Region’s Response at 4. In support of

this request, the Region states that it is "currently

conducting the activities that constitute the substance of

petitioners’ requested permit modifications." Id. at 4. With

1
EPA Region 9's Response to Board’s Order Granting Petitioners’ Motion to Reinstate Petition for Review and EPA Region 9's Motion for Voluntary Remand of Five Modified National Discharge Elimination System Permits ("Region Response").
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regard to the issue of pollution reduction estimates, the

Region states that the permittees have now submitted these

estimates and that the estimates submitted by the Cities of

Phoenix, Mesa, and Tempe are adequate to meet the requirements

of the permit. The Region states further that:

Consistent with the remedy sought in the Petition and specified in the [Consent] Agreement, the Region is now prepared to re-evaluate whether these new estimates indicate that the Region remains correct in its determination that these municipalities’ permits require controls to reduce the discharge of pollutants to the maximum extent practicable.

Id. at 5. The Region has requested additional information

from the City of Tucson and Pima County, which will be

provided by April 1, 1999, and will use this information to

determine if the storm water control measures are adequate.

The Region states that it expects to complete this analysis by

mid-May 1999. Id. at 6. Finally, the Region states:

In keeping with the [Consent] Agreement, the Region is planning on making a formal determination, in accordance with 40 C.F.R. section 122.62, whether to modify the permits at issue to require additional storm water control measures. By May 17, 1999, the Region plans to issue a public notice of its determination in the form of a draft permit pursuant to 40 C.F.R. section 124.6. These actions will provide petitioners with their requested remedy -- and preserve all of the petitioners and permittees’ procedural rights, as well. In accordance with 40 C.F.R. part 124, petitioners and the permittees will have full opportunities to comment on the Region’s determination and to appeal any proposed permit modification at the time.

Id. at 6-7.
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With regard to the requirement that Pima County and the

City of Tucson submit proposals for post-construction storm

water pollution control measures for new developments and

significant redevelopments proposed within their jurisdiction,

the Region states that both permittees submitted the

information and the Region "is now evaluating the measures

consistent with the remedy requested in the Petition, as well

as the provisions of the [Consent] Agreement. The Region

expects to complete this review in the next several weeks."

Id. at 7. The Region states further that:

If the Tucson and Pima County’s post-construction measures are fully adequate, the Region plans, in accordance with the [Consent] Agreement, to issue a draft permit that will propose to require implementation of these measures. If the Region determines that the post-construction measures submitted by either Tucson or Pima County are inadequate, the Region plans to follow the Agreement and develop additional or modified post-construction measures to respond to the inadequacy. The Region’s proposed alternative measures will be set forth in a draft permit(s) in accordance with 40 C.F.R. sections 124.6 and 122.62(a)(2). In either case, the Region expects to be able to issue a draft permit by May 17, 1999. * * * [T]hese actions will provide petitioners’ with their requested remedy B and preserve all of the petitioners and permittees’ procedural rights, as well.

Id.

Petitioners do not oppose a remand of the permit

modifications at issue in this case, but argue that the Board

should order the Region to comply with the Region’s self-

imposed deadlines and "additional deadlines contained in the
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[Consent] Agreement with respect to issuing modified and final

permits." Petitioners’ Response to EPA Region 9's Motion for

Voluntary Remand (March 24, 1999).

From the record before us, it appears as if the Region

has continued to comply with the terms of the Consent

Agreement, and, in so doing, continues to address the concerns

raised in the petition for review. Petitioners agree that the

Region’s actions address their concerns and only seek

assurances that the Region’s proposed timetable will be met.

In this regard, the Region states that it will "expeditiously

complete the actions agreed to in the Consent Agreement."

Region’s Response at 4 Because the Region has chosen not to

defend the permit modifications, instead requesting a

voluntary remand, and petitioners (by acceding to a remand)

have accepted compliance with the Consent Agreement as an

adequate remedy in lieu of the relief sought in their

petition, the issues raised in the petition have effectively

become moot. We therefore conclude that no purpose is served

by keeping this matter on our docket. This matter is

therefore remanded to the Region for continued action in

addressing petitioners’ concerns and the petition is dismissed

as moot. Although we decline to impose any additional

deadlines or to oversee the Region’s execution of the Consent

Agreement, we would fully expect that the Region will continue
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to carry out the terms of the Consent Agreement in an

expeditious manner and as represented in its filings with this

Board.

So ordered.

Dated: 3/25/99
ENVIRONMENTAL APPEALS

BOARD

By: /s/
Edward E. Reich
Environmental Appeals Judge
 CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Dismissing Petition in the matter of Arizona Municipal Storm Water Permits for Pima County and the Cities of Mesa, Phoenix, Tempe, and Tucson, Arizona, NPDES Appeal No. 98-5, were sent to the following persons in the manner indicated:

First Class Mail,
Postage Prepaid
and Facsimile:

Craig J. Reece
Christopher Sproul
Office of the City Attorney Assistant Regional Counsel
City of Phoenix
U.S. EPA Region IX
200 West Washington, Suite 1300 75 Hawthorne Street
Phoenix, AZ 85003-1611
San Francisco, CA 94105-3901
Fax # (602) 534-3575
Fax # (415) 744-1041

Stephen J. Burg
Jennifer B. Anderson
Environmental Attorney
Arizona Center for Law in
Mesa City Attorney’s Office the Public Interest
P.O. Box 1466
202 E. McDowell Rd,
Suite 153
Mesa, AZ 85211-1466
Phoenix, AZ 85004
Fax # (602) 644-2498
Fax # (602) 258-8757

T.J. Harrison
Charlotte Benson
Office of the City Attorney
Assistant City Attorney City of Tucson
Tempe City Attorney’s Office P.O. Box 27210
P.O. Box 5002
Tucson, AZ 85726-7210
Tempe, AZ 85280
Fax # (520) 623-9803
Fax # (602) 350-8645

Harlan Agnew
Deputy County Attorney
Office of the Pima
County Attorney
Civil Division
32 N. Stone, Suite 1500
Tucson, AZ 85701-1412
Fax # (520) 620-6556

Inter-office Mail:

Stephen Sweeney
U.S. EPA
Office of General Counsel
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Dated: 3/25/99
_/s/_______
Annette Duncan
Secretary