Notice2025-04040
Order Denying Petition To Set Aside Consent Agreement and Proposed Final Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 13, 2025
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Clean Water Act, the U.S. Environmental Protection Agency (EPA) hereby provides notice to the public of the denial of the Petition to Set Aside Consent Agreement and Proposed Final Order filed in the matter styled as In the Matter of Frederick- Winchester Service Authority, and Frederick County Sanitation Authority, d/b/a Frederick Water, Docket No. CWA-03-2024-0036, along with the reasons for such denial.
Full Text
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<title>Federal Register, Volume 90 Issue 48 (Thursday, March 13, 2025)</title>
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[Federal Register Volume 90, Number 48 (Thursday, March 13, 2025)]
[Notices]
[Pages 11966-11968]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-04040]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL 12663-01-OMS]
Order Denying Petition To Set Aside Consent Agreement and
Proposed Final Order
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of order denying petition to set aside consent agreement
and proposed final order.
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SUMMARY: Pursuant to the Clean Water Act, the U.S. Environmental
Protection Agency (EPA) hereby provides notice to the public of the
denial of the Petition to Set Aside Consent Agreement and Proposed
Final Order filed in the matter styled as In the Matter of Frederick-
Winchester Service Authority, and Frederick County Sanitation
Authority, d/b/a Frederick Water, Docket No. CWA-03-2024-0036, along
with the reasons for such denial.
ADDRESSES: To access and review documents filed in the matter that is
the subject of this notice, please visit <a href="http://yosemite.epa.gov/oarm/alj/alj_web_docket.nsf/Dockets/CWA-03-2024-0036">http://yosemite.epa.gov/oarm/alj/alj_web_docket.nsf/Dockets/CWA-03-2024-0036</a>.
FOR FURTHER INFORMATION CONTACT: Matthew Hall, Attorney-Advisor, Office
of Administrative Law Judges (1900R), Environmental Protection Agency,
1200 Pennsylvania Avenue NW, Washington, DC 20004; telephone number:
(202) 564-6255 (main) or (202) 564-2199 (direct); fax number: (202)
565-0044; email address: <a href="/cdn-cgi/l/email-protection#c4aba5a8aea2ada8adaaa384a1b4a5eaa3abb2"><span class="__cf_email__" data-cfemail="bfd0ded3d5d9d6d3d6d1d8ffdacfde91d8d0c9">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Legal Authority
Section 309(g)(1)(A) of the Clean Water Act (CWA or Act) empowers
the EPA to assess an administrative civil penalty whenever, on the
basis of any information available, the EPA finds
[[Page 11967]]
that a person has violated certain sections of the Act or any permit
condition or limitation implementing any such section in a permit
issued under section 402 or 404 of the Act. 33 U.S.C. 1319(g)(1)(A).
However, before issuing an order assessing an administrative civil
penalty under section 309(g), the EPA is required by the CWA and the
Consolidated Rules of Practice Governing the Administrative Assessment
of Civil Penalties and the Revocation/Termination or Suspension of
Permits (Rules of Practice) to provide public notice of and reasonable
opportunity to comment on the proposed issuance of such order. 33
U.S.C. 1319(g)(4); 40 CFR 22.45(b)(1).
Any person who comments on the proposed assessment of a penalty is
then entitled to receive notice of any hearing held under section
309(g) of the CWA and at such hearing is entitled to a reasonable
opportunity to be heard and to present evidence. 33 U.S.C.
1319(g)(4)(B); 40 CFR 22.45(c)(1). If no hearing is held before
issuance of an order assessing a penalty under section 309(g) of the
CWA, such as where the administrative penalty action in question is
settled pursuant to a consent agreement and final order, any person who
commented on the proposed assessment may petition to set aside the
order on the basis that material evidence was not considered and to
hold a hearing on the penalty. 33 U.S.C. 1319(g)(4)(C); 40 CFR
22.45(c)(4)(ii).
The CWA requires that if the evidence presented in support of the
petition is material and was not considered in the issuance of the
order, the Administrator shall immediately set aside such order and
provide a hearing in accordance with section 309(g). 33 U.S.C.
1319(g)(4)(C). Conversely, if the Administrator denies a hearing, the
Administrator shall provide to the petitioner, and publish in the
Federal Register, notice of and reasons for such denial. Id.
The authority to decide petitions by commenters to set aside final
orders entered without a hearing and provide copies and/or notice of
the decision has been delegated to Regional Administrators in
administrative penalty actions brought by regional offices of the EPA.
Memorandum from the EPA Administrator to Regional Administrators
Regarding Delegation of Authority 2-52A (January 18, 2017) (available
at: <a href="https://intranet.epa.gov/ohr/rmpolicy/ads/dm/2-52A.pdf">https://intranet.epa.gov/ohr/rmpolicy/ads/dm/2-52A.pdf</a>). The Rules
of Practice require that where a commenter petitions to set aside a
consent agreement and final order in an administrative penalty action
brought by a regional office of the EPA, the Regional Administrator
shall assign a Petition Officer to consider and rule on the petition.
40 CFR 22.45(c)(4)(iii). Upon review of the petition and any response
filed by the complainant, the Petition Officer shall then make written
findings as to: (A) the extent to which the petition states an issue
relevant and material to the issuance of the consent agreement and
proposed final order; (B) whether the complainant adequately considered
and responded to the petition; and (C) whether the resolution of the
proceeding by the parties is appropriate without a hearing. 40 CFR
22.45(c)(4)(v).
If the Petition Officer finds that a hearing is appropriate, the
Presiding Officer shall order that the consent agreement and proposed
final order be set aside and establish a schedule for a hearing. 40 CFR
22.45(c)(4)(vi). Conversely, if the Petition Officer finds that
resolution of the proceeding without a hearing is appropriate, the
Petition Officer shall issue an order denying the petition and stating
reasons for the denial. 40 CFR 22.45(c)(4)(vii). The Petition Officer
shall then file the order with the Regional Hearing Clerk, serve copies
of the order on the parties and the commenter, and provide public
notice of the order. Id.
II. Procedural Background
In March 2024, the Director of the Enforcement and Compliance
Assurance Division of EPA Region 3 (Complainant) and the Frederick-
Winchester Service Authority and the Frederick County Sanitation
Authority (Respondents) agreed to enter into a Consent Agreement and
Final Order (Proposed CAFO) in the matter styled as In the Matter of
Frederick-Winchester Service Authority and Frederick County Sanitation
Authority, Docket No. CWA-03-2024-0036. The Proposed CAFO sought to
simultaneously commence and conclude an administrative penalty action
under section 309(g) of the CWA against the Respondents for alleged
violations of effluent limitations found in a permit issued to the
Respondents under section 402 of the CWA that occurred between June 30,
2019, and January 31, 2024, at the Respondents' Crooked Run Wastewater
Treatment Plant. Pursuant to the agreement, the Respondents agreed to
pay a civil penalty of $12,000 to settle the alleged violations and
waived their right to otherwise contest the allegations or appeal the
Final Order. Pursuant to section 309(a)(3) of the CWA, the parties
separately entered into an Administrative Order of Consent, which
required the Respondents to provide the EPA with an Injunctive Relief
Framework detailing plans to implement infrastructure upgrades needed
to come into compliance with their permit's effluent limitations.
The Complainant posted a public notice expressing an intent to file
the Proposed CAFO and advising that anyone wishing to comment on the
Proposed CAFO could do so. Alan Randolph Holland, Jr. (Petitioner) was
among a number of people that filed a timely comment on the Proposed
CAFO. The Complainant then sent a letter to each commenter declaring an
intent to finalize the Proposed CAFO as originally planned, attaching a
copy of the Proposed CAFO and advising commenters that they had 30 days
from its receipt to petition the Regional Administrator to set aside
the Proposed CAFO. On July 16, 2024, the Petitioner timely submitted a
petition seeking to set aside the Proposed CAFO and have a public
hearing held thereon (Petition).
On September 17, 2024, having decided not to withdraw the Proposed
CAFO after considering the arguments in the Petition, the Regional
Administrator for Region 3 requested that the Office of Administrative
Law Judges assign an Administrative Law Judge to consider the Petition
in accordance with 40 CFR 22.45(c)(4)(iii). On October 25, 2024, an
order issued in which the undersigned was assigned to consider and rule
on the Petition, and the Complainant was directed to present a written
response to the Petition. The Complainant timely filed a response,
along with exhibits in support, on November 25, 2024.
III. Denial of Petition
On February 14, 2025, the undersigned issued an Order Denying
Petition to Set Aside Consent Agreement and Proposed Final Order
(Order), holding that resolution of the proceeding without a hearing is
appropriate. The Order concluded that none of the three issues raised
in the Petition presented relevant and material evidence that had not
been adequately considered and responded to by the Complainant.
First, the Petitioner argued that the civil penalty was incorrectly
calculated based on the Respondents' false statement that they received
no economic benefit. According to the Petitioner, the Respondents'
assertion to the Complainant that revenue generated by the community
served by the Crooked Run Wastewater Treatment Plant covered the cost
of operating the facility was contradicted by previous statements that
operating costs outstripped revenue. The undersigned, however, found
that the purportedly
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false statement was not material because it would not change the
economic benefit analysis.
Second, the Petitioner argued that the Respondents falsely claimed
to have acted in good faith by telling the Complainant that their
policies included stringent pollution control requirements at the time
of the violations when, according to the Petitioner, the Respondents
adopted the measures only after the violations were discovered. The
undersigned concluded that the Respondents' alleged statement was not
materially false because the evidence provided by the Petitioner
directly supported the Respondents' claim.
Third, the Petitioner argued that, based on the two allegedly false
statements that he identified, the Respondents falsely certified to the
Complainant that all of their statements were complete and accurate.
The undersigned concluded that this argument was merely a repackaging
of the Petitioner's first two arguments and that any allegedly false
certification will not itself be material and relevant if the allegedly
false statements underlying the certification were not themselves
material and relevant.
Because the Petitioner did not identify any material and relevant
issues not considered by the Complainant when setting the civil
penalty, the undersigned therefore issued the Order denying the
Petition. The Order may be viewed online at <a href="http://yosemite.epa.gov/oarm/alj/alj_web_docket.nsf/Dockets/CWA-03-2024-0036">http://yosemite.epa.gov/oarm/alj/alj_web_docket.nsf/Dockets/CWA-03-2024-0036</a>.
Authority: 33 U.S.C. 1319(g); 40 CFR part 22.
Dated: February 28, 2025.
Susan L. Biro,
Chief Administrative Law Judge, Office of Administrative Law Judges.
[FR Doc. 2025-04040 Filed 3-12-25; 8:45 am]
BILLING CODE 6560-50-P
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