Lynwood Utility Corporation (Board decision, April 15, 1999)

Plain-English summary

Lumsden Bend Community Group challenged EPA Region IV's decision not to object to a modified NPDES permit for the Lynwood Utility Corporation sewage treatment plant. The group relied on an informal appeal procedure for requests to modify, revoke, reissue, or terminate an existing permit. The Environmental Appeals Board held that the cited procedure did not cover a regional decision not to object to a state-issued permit, and it identified no other authority for review. The Board dismissed the appeal.

Decision snapshot

• Cited authorities: 33 U.S.C. § 1342(d); 40 C.F.R. § 124.5(b), (c).
• Outcome: Appeal dismissed because the Board lacked authority under the cited informal-appeal provision to review the regional decision.
• Key point: The informal appeal procedure did not extend to EPA's decision not to object to a state-issued NPDES permit.

Full text (EPA EAB public release)

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

)
In re: )
)
Lynwood Utility ) NPDES Appeal No. 99-3 Corporation (STP) )
)
)

ORDER DISMISSING APPEAL

By submission dated April 6, 1999, the Lumsden Bend

Community Group ("Lumsden") seeks review of a decision by U.S.

EPA Region IV (the "Region") not to object to a modified NPDES

permit issued by the Tennessee Department of Environment and

Conservation.1 The permit modification was issued to the

Lynwood Utility Corporation sewage treatment plant

("Lynwood"), and, according to Lumsden, would allow Lynwood to

increase the capacity of its existing plant. Notice of Appeal

at 3-4.

Petitioner states that the Board has authority to review

the Region’s decision not to object to the State-issued NPDES

permit under the informal appeal procedures of 40 C.F.R.

§ 124.5(b). Notice of Appeal at 1. That section, however,

1
Where, as here, EPA has authorized a State to create and administer its own NPDES permit system, the Agency retains an oversight role. 33 U.S.C. 1342(d). Before a State may issue a permit, it must submit the proposed permit to the Region, which then has ninety days to review the draft permit and raise objections. 33 U.S.C. § 1342(d)(2). 2

provides for an informal appeal to the Environmental Appeals

Board only where the Region has denied a request that an

existing permit be modified, revoked and reissued, or

terminated. Specifically, § 124.5(b) states, in part:

If the [Region] decides the request [for permit modification, revocation and reissuance, or termination] is not justified, [the Region] shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination * * * may be informally appealed to the Environmental Appeals Board by a letter briefly setting forth the relevant facts. The Environmental Appeals Board may direct the [Region] to begin modification, revocation and reissuance, or termination proceedings under paragraph (c) of this section.

(Emphasis added). As the present appeal is not from the

denial of any of the above-mentioned requests (modification,

revocation and reissuance, or termination), § 124.5(b) is

inapplicable in this case. Nothing in § 124.5(b) authorizes

the Board to review a Regional decision not to object to a

State-issued permit, nor are we aware of any other provision

providing the Board with such authority. Accordingly, the

appeal must be, and hereby is, dismissed.

So ordered.

Dated: April 15, 1999
ENVIRONMENTAL APPEALS BOARD
3

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

I hereby certify that copies of the foregoing Order Dismissing Appeal in the matter of Lynnwood Utility Corporation (STP), NPDES Appeal No. 99-3, were sent to the following persons in the manner indicated:

First Class Mail,
Postage Prepaid:

Joe W. McCaleb (SCN 3734)
100 Colonial Drive
Hendersonville, TN 37075

Robert F. McGhee, Director
Water Management Division
U.S. EPA Region IV
Atlanta Federal Center
61 Forsyth Street
Atlanta, GA 30303-8960

Paul E. David
Tennessee Department of
Environment and Conservation
Division of Water Pollution
Control
401 Church Street
6th Floor, L & C Annex
Nashville, TN 37243-1534

Dated: April 15, 1999
/s/
Annette Duncan
Secretary