Powertech (USA) Inc. (Board decision, February 9, 2011)

Plain-English summary

EPA Region 8 issued an Underground Injection Control permit to Powertech (USA) Inc. Coloradoans Against Resource Destruction and James B. Woodward petitioned the Environmental Appeals Board to review the permit. Before the Board ruled on the petitions, Region 8 withdrew the permit and said it intended to issue a new draft permit for notice and comment. The Board concluded that the withdrawal made the petitions moot and dismissed them with prejudice.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(d) and § 1.25(e)(1)
• Outcome: The two petitions for review were dismissed with prejudice as moot after Region 8 withdrew the permit.
• Key point: Withdrawal of a challenged permit before the Board decides whether to grant review can moot the petitions.

Full text (EPA EAB public release)

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

In re: )
)
Powertech (USA) Inc. ) UIC Appeal Nos. 11-01 & 11-02
)
UIC Permit No. CO51237-08412 )
---------------------------------------)
ORDER DISMISSING PETITIONS FOR REVIEW

     On December 3, 2010, U.S. Environmental Protection Agency Region 8 ("Region") issued an

Underground Injection Control ("UIC") permit to Powertech (USA) Inc. ("Powertech"). The Board

received two petitions seeking review of the permit: one from Coloradoans Against Resource

Destruction ("CARD") and one from Mr. James B. Woodward. Both petitions appear to have been

timely filed.

     On February 7, 2011, the Region issued a notice withdrawing the December 3, 2010 permit

pursuant to its authority under 40 C.F.R. § 124.19(d). 1 See U.S. EPA Region 8, Notice of Withdrawal

of UIC Permit No. CO51237-08412 (Feb. 7, 2011). On the same day, the Region filed a motion with

the Board requesting that the petitions be dismissed as moot. Respondent Region 8's Motion to

Dismiss as Moot the Petitions for Review of the UIC Permit ("Motion to Dismiss"). The Region

states that it is withdrawing the permit in its entirety and intends to issue a new draft permit, which

will be subject to notice and comments in accordance with the applicable regulations. Motion to

Dismiss at 2. The Region states further that it has contacted both CARD and Mr. Woodward "and

they concur with the Region's request to dismiss the petition[s]." Id.

   Upon consideration, the Board concludes that the Region's withdrawal of the permit in its

entirety renders the two petitions challenging the permit moot. The petitions are therefore

DISMISSED WITH PREJUDICE.

   So ordered. 2



                                 Dated: February 9, 2011

                                 ENVIRONMENTAL APPEALS BOARD


                                 By: [signature]
                                     Kathie A. Stein
                                     Environmental Appeals Judge

1 Section 124.19(d) allows a permit issuer to unilaterally withdraw a permit decision (or portion
thereof) prior to the Board rendering a decision to grant or deny review. See In re Desert Rock
Energy Co., PSD Appeal Nos. 09-03 through 09-06, slip op. at 11 (EAB Sept. 24, 2009), 14 E.A.D.
__ (Remand Order).

2 The three-member panel deciding this matter is comprised of Environmental Appeals Judges
Edward E. Reich, Kathie A. Stein, and Anna L. Wolgast. 40 C.F.R. § 1.25(e)(1).

                              CERTIFICATE OF SERVICE

   I hereby certify that copies of the foregoing Order Dismissing Petitions for Review in the

matter of Powertech (USA) Inc., UIC Appeal Nos. 11-01 & 11-02, were sent to the following
persons in the manner indicated:

First Class Mail: Jeffrey C. Parsons
Western Mining Action Project
P.O. Box 349
Lyons, CO 80540

                                 James B. Woodward
                                 P.O. Box 599
                                 Wellington, CO 80549

Interoffice Mail: Leslie Darman (2355A)
Office of General Counsel

Pouch Mail: Lucita C. Chin (MC-8RC)
Associate Regional Counsel
U.S. EPA Region 8
1595 Wynkoop St.
Denver, CO 80202

Dated: FEB - 9 2011
Annette Duncan
Secretary