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In re City of Port St. Joe, Florida

Case Number:NPDES Appeal No. 93-9, 5 E.A.D. 6
ELR Citation:29 ELR 40922


The City of Port St. Joe, Florida, has petitioned for review of what it considers to be a "de facto denial" of its evidentiary hearing request by U.S. EPA Region IV in an NPDES permit proceeding. The Region, after receiving an evidentiary hearing request on a final permit decision issued to the City, withdrew the permit and reopened proceedings to issue a new permit. It is the Region's issuance of a new draft permit which the City asserts is a "de facto denial" of its evidentiary hearing request on the previous permit. The denial of an evidentiary hearing is subject to an appeal to this Board under 40 C.F.R. § 124.91(a).


The petition for review is dismissed because the Region's action in withdrawing the previous permit has mooted any issue relative to that permit, including the evidentiary hearing request. The withdrawal itself was clearly authorized by 40 C.F.R. § 124.60(b), which provides that a permit may be withdrawn "any time prior to rendering of an initial decision in a formal hearing on a permit." Further, since there is no longer an EPA permit for the Board to review, the Board no longer has jurisdiction to hear the appeal.