United Slates Enwironmental EPA 100-B-94-002
Environmental Protection Appeals Board November 1994
Agency (1103B)
*>EPA The Environmental
Appeals Board
Practice Manual
This document is solely intended as guidance. The policies and procedures
in this guidance do not constitute a rulemaking by the Agency, and may not
be relied on to create a substantive or procedural right or benefit enforceable
at law by any person.
Recycled/Recyclable
<2) Primed with Soy/Canota Ink on paper that
XI j contains at least 50% recycled fiber
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TABLE OF CONTENTS
Page
I. INTRODUCTION -- ENVIRONMENTAL APPEALS BOARD (EAB) .... 1
A. Scope of Responsibilities 1
B. Oral Argument 2
C. Clerk's Office 3
II. PERMIT APPEALS 3
A. Appeals of RCRA, UIC, and PSD Permit Decisions 4
1. Filing Requirements -- 40 C.F.R. Part 124 4
2. Participation During the Comment Period 5
3. Raising Issues During the Comment Period 5
4. Standard of Review 5
5. Briefing Before a Decision on Granting
Review Has Been Made - The Petition,
Responses, and Reply Briefs 6
6. Briefing After Review Has Been Granted 6
7. The Effect of an Appeal on the Permit 7
B. The Special Rules Governing Appeals of
NPDES Permit Decisions 8
1. Evidentiary Hearings Under Subpart E 8
a. No Direct Appeal to the Board 8
b. Filing Requirements 9
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c. Genuine Issues of Material Fact 9
d. Appeals of Legal Issues 10
e. The Regional Administrator's Decision 10
f. Appeals to the Board From Denial of
Evidentiary Hearing Requests or
Following an Evidentiary Hearing 10
(1) Standard of Review 11
(2) Actions Following the Board's
Decision on Whether to Grant
Review 11
(3) Appeals of Issues Relating to
State Certification 12
(4) The Effect of a Board Appeal on
an NPDES Permit 13
C. Reconsideration, Clarification, or Stays
Before the EAB 13
D. Judicial Review 14
III. APPEALS FROM HEARINGS GOVERNED BY THE
CONSOLIDATED RULES-PART 22 14
A. The Scope of the Consolidated Rules 14
B. Board Approval Over Certain Pre-hearing
Settlements 16
C. Appeals Under Part 22 17
1. Interlocutory Appeals 17
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2. Appeals From Initial Decisions 17
a. Notice of Appeal 17
b. Scope of Review 18
3. Sua Sponte Review 19
4. Final Orders and Reconsideration 19
5. Special Rules for Appeals from Federal
Facility Orders Under Part 22 20
IV. SPECIAL RULES GOVERNING CERTAIN CLEAN AIR
ACT ENFORCEMENT PROCEEDINGS AND APPEALS 20
A. Clean Air Act § 120 20
B. Clean Air Act § 207(c) 21
V. SPECIAL RULES GOVERNING FIFRA PROCEEDINGS 21
VI. CERCLA § 106(b) PETITIONS FOR REIMBURSEMENT 21
VII. SPECIAL REQUIREMENTS FOR MOTIONS FILED WITH
THE BOARD 23
VIII. CONCLUSION 23
ATTACHMENTS -- (Sample Pleadings and Orders)
Petition for Review of HSWA Permit Appendix A
Remand Order Appendix B
Status of State Delegation Appendix C
Request for Regional Response Appendix D
Expedited Administrative Review of Appeals of
RCRA Permit Denials Filed by Interim Status
Hazardous Waste Combustion Facilities Appendix E
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Motion for Reconsideration and Stay Pending
Reconsideration or Appeal Appendix F
Environmental Appeals Board Consent Order
Review Procedures Appendix G
Order Accepting Certification of Ruling
For Interlocutory Appeal and Scheduling
Oral Argument Appendix H
Notice of Appeal Appendix I
Guidance on Procedures for Submitting CERCLA
Section 106(b) Reimbursement Petitions and on
EPA Review of Those Petitions Appendix J
Chronological list of all EAB decisions as of
October 1994 Appendix K
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ENVIRONMENTAL APPEALS BOARD - PRACTICE MANUAL
I. INTRODUCTION - ENVIRONMENTAL APPEALS BOARD (EAB^l
This manual will address the rules governing practice before EPA's
Environmental Appeals Board. On March 1, 1992, the Environmental Appeals Board
of the United States Environmental Protection Agency came into existence as the final
Agency decisionmaker in administrative appeals arising under the environmental
statutes administered by the EPA.
In establishing the Board, the Agency stated that the principal reason for its
creation was the desire to strengthen EPA's administrative enforcement and permitting
programs by giving more visibility and directing more resources to the Agency's
appeals process. 1 By creating a three-person panel, which is independent of all
Agency components outside the immediate Office of the Administrator, the Agency
also hoped to inspire greater confidence in "the fairness of Agency adjudications." 2
Prior to March 1992, appeal decisions were issued primarily by a Judicial Officer
designated by the Administrator, or, in some cases, by the Administrator based on the
recommendation of a Judicial Officer. While this system worked well, it was believed
that the Board would be in a much better position to handle the growing administrative
docket.
A. Scope of Responsibilities
The scope of the Board's responsibilities are set by regulation. 3 In general,
the Board acts as the final Agency decisionmaker on an array of appeals from permit
decisions and administrative enforcement decisions. The EAB Judges are required to
1 The Board's role in permit appeals is discussed in Section II. The Board's role in administrative
enforcement appeals is discussed in Section III. Finally, the Board's role in deciding Petitions for Reimbursement
under CERCLA § 106(b) is discussed in Section VI.
2 57 Fed. Reg. at 5322 (Feb. 13, 1992). In particular, the Federal Register notice stated, in pertinent part
that:
By creating a three-person panel, which is independent of the Administrator's enforcement
authority (delegated to various Regional and Headquarters enforcement officers), the Agency also
hoped to inspire greater confidence in "the fairness of Agency adjudications." (Id.)
The importance of the Board's independence was recently noted as a ground for increasing administrative Clean
Water Act penalties in the Report of the Committee on Environment and Public Works accompanying S. 2093, the
Water Pollution Prevention and Control Act of 1994. See S. Rep. No. 103-257, I03rd Cong. 2d Sess. 86 (1994).
J 40 C.F.R. § 1.25(e).
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be SES-level career Agency attorneys. 4 Under the internal procedures governing the
Board's organization there is no "chief judge." Rather, the three judges serve as co-
equals. The Board functions as a collegial body, and decisions regarding case
priorities as well as decisions on the merits are made by the Board as a whole. Two
Board members constitute a quorum and matters are decided by majority vote. In this
connection, concurring and dissenting opinions may be issued.
The creation of the Board did not change the procedures for filing appeals that
existed before its creation. 5 Similarly, the standards and scope of review employed
by the Board remain much the same as they were prior to its creation.
Importantly, decisions of the Board are final and cannot be further appealed to
the Administrator. 6 Nor is there any provision for sua sponte review by the
Administrator. The Board has the authority to refer a matter to the Administrator, on
its own initiative. 7 However, this authority is to be exercised in only exceptional
cases. 8
B. Oral Argument
To aid the Board in its decisionmaking, the Board hears oral argument in
appropriate cases. Oral argument may be requested, in which case the Board will
determine whether argument would be of assistance. The Board will also schedule
arguments on its own motion, where it believes a case is particularly significant or
raises an important legal issue. Oral arguments are heard in the EPA Hearing Room,
M2409, 401 M Street, SW, Washington, DC, and are open to the public.
4 As of this writing, Ronald L. McCallum, formerly the EPA-Chief Judicial Officer, Edward E. Reich,
formerly Acting Assistant Administrator for Enforcement of EPA, and Nancy B. Firestone, formerly the
Associate Deputy Administrator of EPA, make up the Board. The Board also employs 7 attorneys and 4
support staff, who assist the Board in carrying out its responsibilities.
5 See 57 Fed. Reg. 5320 (Feb. 13, 1992).
6 The EAB issues formal written opinions in the cases it decides. EAB decisions are commercially available
to subscribers of Lexis and Westlaw. In addition, copies of EAB decisions and AU decisions are available through
the EPA-Administrative Law Reporter. The EAB expects to begin publishing its opinions, including previous
decisions by the Board and those decisions by the Administrator and Chief Judicial Officer which still have
precedential value, in a series of bound volumes in 1995.
7 Ssg 40 C.F.R. § 1.25(e).
8 In addition, in the rare event that only two judges are available to participate in a decision and they
cannot agree, the Administrator is to serve as the tie-breaker. Id.
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C. Clerk's Office
The Board is located in a building separate from the main EPA Headquarters
building. Further information about the Board and its procedures may be obtained by
contacting the Clerk of the Environmental Appeals Board between 8 a.m. and 4:30
p.m. at 607 14th Street, NW, Suite 500, Washington, DC 20005; phone
(202/501-7060). In this connection, despite the Board's location, filings by mail
should be sent to EPA, Environmental Appeals Board (1103B), 401 M Street, S.W.,
Washington, D.C. 20460. Filings made in person or through an express mail service
should be to the 607 14th Street, Suite 500, Washington, D.C. 20005 address. The
Board asks for 1 original and 5 copies of any filing. Where exhibits are more than 30
pages, the Board requests that 3 sets of exhibits be filed. The Board will not accept
petitions for review, notices of appeal, or briefs for filing by facsimile. The Board
will, however, consider motions that are faxed to the Board. Any motion faxed to the
Board should, within 24 hours, be followed by a mail or express delivery copy so that
receipt is assured (see aiscj Section VIII infra, at page 23).
II. PERMIT APPEALS
The EAB hears permit appeals concerning federally issued permits, and State-
issued permits where the State is operating under an EPA-delegation, but excludes
State-issued permits issued under an authorized State program. See, e.g.. In re Great
Lakes Chemical Corp.. RCRA Appeal Nos. 92-34, 36 and 37, at 4 (EAB, July 7,
1994), see also Appendix C. In addition, different rules apply depending upon the
type of permit program. In general, however, RCRA, UIC and PSD permits are
treated the same under the rules and are discussed in Section A. The rules governing
NPDES appeals are discussed in Section B. 9
9 In addition, there are separate rules governing appeals from permits issued under the Clean Air Act's Acid
Rain program at 40 C.F.R. Part 78. To date there have not been any appeals filed under Part 78 and this manual
does not address Part 78. In addition, the proposed Clean Air Act federal permitting program contains proposed
appeal procedures that are not addressed in this manual, because they are not final. Sgg 58 Fed. Reg. 68813-68815
(Dec. 29, 1993).
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A. Appeals of RCRA. UIC. and PSD Permit Decisions 10
1. Filing Requirements — 40 C.F.R. Part 124
In UIC, RCRA, or PSD permit proceedings, persons not satisfied with the
Regional Administrator's (or delegatee's) final permit decision (denying, modifying,
revoking and reissuing, or terminating a permit) under 40 C.F.R. § 124.15 may file a
petition for review with the Environmental Appeals Board under 40 C.F.R.
§ 124.19(a).
A petition for review must be filed with the Board within 30 days of the final
permit decision. The 30-day period within which a person may request review begins
on the day after the Region "serves" notice of its permit decision, unless a later date is
specified in that notice. 40 C.F.R. § 124.19(a) and § 124.20(a). When service of the
notice is accomplished through the mail, service is deemed to be completed when the
notice is mailed, not when it is received. However, to compensate for the delay of
mailing, the 30-day deadline for filing a petition is extended by 3 days if the final
permit decision being appealed was served on the petitioner by mail, 11 A document
is not considered filed with the Board until it is received by the Board. Therefore,
merely putting a petition into the mail does not constitute filing for purposes of
meeting the Part 124 deadlines. 12
10 The permits covered in this discussion are issued under the following
statutes: (1) Clean Air Act (Prevention of Significant Deterioration - PSD permits
under Title V); (2) Resource Conservation and Recovery Act (RCRA permits for
facilities storing, treating or disposing of hazardous waste); and (3) Safe
Drinking Water Act (Underground Injection Control (UIC) permits).
Also, note that special rules apply with regard to denials of requests for
modification, revocation, and reissuance of NPDES, UIC or RCRA permits under 40
C.F.R. § 124.5(b). 40 C.F.R. § 124.5(b) establishes an "informal" appeal process to
the EAB, which is not discussed herein.
11 40 C.F.R. § 124.20(d). See In re Heritage Environmental Services. Inc.. RCRA Appeal No. 93-8 at 3-5
(EAB, Aug. 3, 1994).
12 Frequently, a timely filing of a petition for review will lead to further negotiations between the EPA
permitting authority and the applicant. Negotiations will not and do not stay further proceedings on appeal.
However, where settlement negotiations are contemplated by the parties, the Board may either stay further briefing
or, if the negotiations may be protracted, remand the permit decision to the EPA Region for the purpose of pursuing
a settlement outside the appeal process. These remand orders expressly state that the remand is "without prejudice
to either party's right to request reinstatement of the appeal if that should prove necessary.
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2. Participation During the Comment Period
The rules provide that only those persons who participated in the administrative
process may appeal a permit decision. 40 C.F.R. § 124.19(a). More specifically, if a
condition of the final permit was also contained in the draft permit, a person may
petition for review of that condition only if that person filed comments on the draft
permit or participated in a public hearing on the draft permit. If a person did not file
comments or participate in a hearing on the draft permit, that person may only petition
the Board to review changes from the draft to the final permit decision. 13
3. Raising Issues During the Comment Period
The petition for review must include a demonstration that any issues being
raised in the petition were raised (by someone, even if the petitioner did not raise the
issue in his or her comments) during the public comment period (including any public
hearing) to the extent required by 40 C.F.R. § 124.13. That section provides that
persons must raise "all reasonably ascertainable issues and submit all reasonably
available arguments supporting their position by the close of the public comment
period (including any public hearing). M- 14
4. Standard of Review
The burden of demonstrating that review is warranted is on the petitioner.
Under 40 C.F.R. § 124.19(a)(1) and (2), the petitioner must show within the petition
that the condition in question is based on:
(1) A finding of fact or conclusion of law which is clearly
erroneous, or
(2) An exercise of discretion or an important policy
consideration which the Environmental Appeals Board
should, in its discretion, review.
Accordingly, in appeals under 40 C.F.R. § 124.19(a), the Board will not grant review
unless it appears from the petition that the permit condition being challenged is based
on a clearly erroneous finding of fact or conclusion of law, or involves an important
13 A discussion of "standing" requirements appears in In re Beckman Production Services. UIC Appeal Nos.
92-9 - 92-16 at 8-10 (EAB, Jan. 24, 1994).
14 The Board has construed this requirement in several cases: see, e.g.. In re General Motors Corporation.
RCRA Appeal No. 93-5, at 13 n.15 (EAB, July 11, 1994).
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matter of policy or exercise of discretion that warrants review. The preamble to 40
C.F.R. § 124.19 states that "this power of review [under Section 124.19] should only
be sparingly exercised," and that "most permit conditions should be finally determined
at the Regional level * * 45 Fed. Reg. 33,412 (May 19, 1980). 15
5. Briefing Before a Decision on Granting Review
Has Been Made - The Petition and Responses
Before the Board decides whether to grant review or not, the regulations
governing permit appeals only contemplate the filing of one document, the petition for
review. It is, therefore, essential that a petition for review be as thorough, detailed
and well-supported as possible. Importantly, when a petition is filed, the
Environmental Appeals Board routinely requests that the Regional Office whose
permit decision is being challenged respond to the petition for review addressing
whether the petition satisfies the requirements for obtaining review under 40 C.F.R.
§ 124.19. This request is directed to the Regional Counsel, with a copy to the
petitioner. The Board typically gives the Region 45 days to file such a response. The
Board also asks the Region to file a certified index of documents in the administrative
record and to include those parts of the record that pertain to the matters raised in the
petition. After the Region has filed its response, the Board normally does not require
further briefing. On some occasions, however, petitioners believe that the Region's
response requires a reply. In such extraordinary instances, a petitioner should file a
motion asking for leave to file a reply brief, explaining why a brief is necessary.
Because the rules do not contemplate the filing of a reply brief before a decision
granting review has been made, there is no deadline for filing a brief, although for
obvious reasons, the sooner a reply brief is filed the more likely it is that the Board
will give it consideration at a meaningful time.
6. Briefing After Review Has Been Granted
The Board is required to issue an order either granting or denying review of a
petition within a "reasonable time" after the petition has been filed. 40 C.F.R.
13 The Board has been strict in holding parties to their burden. For example, the Board has held that
"mere allegations of error" are not enough to warrant review. Seg Tn re Hadson Power 14—Buena Vista. PSD
Appeal Nos. 92-3, 92-4 and 92-5, at 43 n.54 (EAB, Oct. 5, 1992). See also In re LCP Chemir„le RCRA
Appeal No. 92-25, at 4 (May 5, 1993). Rather, the Board will insist on specificity. In re Terra Energy Ltd..
UIC Appeal No. 92-3, at 3 (EAB, Aug. 5, 1992).
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§ 124.19(c). 16 If the Board denies review of some or all of the issues raised in the
petition, final agency action occurs when a final permit decision is issued by the
Regional Administrator following the Board's decision. 17 If the Board grants review
of some or all of the issues raised in the petition, the Board's order will request
further briefing and if it deems necessary will direct the petitioner and the Region to
prepare for oral argument on those issues for which review was granted. The Board
will then issue a final decision deciding the merits of each issue for which review was
granted. This decision could include remanding the issue for further action by the
Region. If the Board decides the issue on the merits without a remand, final agency
action on that issue for purposes of judicial review will occur when a final permit
decision is issued by the Regional Administrator following the Board's decision. 18
If the Board remands the issue for further action by the Region, then final agency
action will occur after completion of the remand proceedings, unless the Board
specifically provides that the results of the remand must be appealed to the Board to
exhaust administrative remedies. 19 Occasionally, the Board will grant review of an
issue and remand the issue in the same order. The Board does this when it concludes
that further briefing will not shed additional light on the issue to be remanded.
7. The Effect of an Appeal on the Permit
Generally, the timely filing of a petition for review under 40 C.F.R. § 124.19
may keep a UIC, PSD, or RCRA decision from becoming effective until the Board
either grants or denies review of the petition.20 If review is denied, the permit will
become effective as provided in 40 C.F.R. § 124.19(f)(1)- If review is granted, and
the permit is for a PSD source, a new injection well, or a new RCRA facility, the
permit applicant will be without a permit pending resolution of the appeal and final
agency action. 21 If, however, the permit is for an existing injection well or RCRA
facility for which a previous permit had already been issued, then the Regional
16 Id. Note, however, on March 16, 1994, Administrator Browner issued an order to the EAB directing the
Board to expedite review of appeals of RCRA permit denials filed by Interim Status Hazardous Waste Combustion
Facilities. Under the directive, absent truly extraordinary circumstances, the Board is to act on such petitions no
later than 90 days following the Board's receipt of the petition for review.
17 40 C.F.R. § 124.19(f)(l)(i).
18 40 C.F.R. § 124.19(f)(l)(ii).
" 40 C.F.R. § 124.19(f)(l)(iii).
30 40 C.F.R. § 124.15(b)(2).
21 40 C.F.R. § 124.16(a).
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Administrator must issue a notice identifying the contested portions of the new permit
and any uncontested conditions that are not severable. These conditions will be stayed
pending resolution of the appeal and final agency action. All other portions of the
new permit will be fully effective and enforceable. 22 Pending resolution of the
appeal and final agency action 23 on the stayed conditions, the permittee must comply
with those conditions of the existing permit that correspond with the stayed conditions
in the new permit.
B. The Special Rules Governing Appeals of NPDES Permit Decisions 24
1. Evidentiary Hearings Under Subpart E
a. No Direct Appeal to the Board
The appeals process for NPDES final permit decisions is different from the
appeals process for UIC, RCRA and PSD permits. 40 C.F.R. § 124.19(a) does not
apply to NPDES permits. In fact, a "final" NPDES permit decision cannot be
appealed directly to the Board. A person wishing to appeal such a decision must first
request the Regional Administrator to hold an evidentiary hearing under Subpart E of
Part 124. Evidentiary hearings are conducted before administrative law judges. If the
evidentiary hearing is granted, the results of the hearing can then be appealed to the
Board, or if an evidentiary hearing is denied, the denial can be appealed to the
Board. 25
22 40 C.F.R. § 124.16(a)(2).
23 As noted, under the rules final agency action for purposes of judicial review will occur upon issuance of
a final permit by the Regional Administrator following action by the Board. 40 C.F.R. § 124.19(f). The Agency
has interpreted § 124.19 to provide that judicial review, if it is otherwise appropriate, is only appropriate after the
Regional Administrator has resolved all outstanding issues in a final permit decision. See Sandoz Pharmaceuticals
Corp. v. USEPA. No. 92-3583 (3d Cir. Apr. 18, 1994).
24 Permits issued under the § 402 of the Clean Water Act are known as National Pollutant Discharge
Elimination System (NPDES) permits.
25 For the purposes of judicial review, final agency action under the NPDES permit program does not occur
unless and until a party has exhausted its administrative remedies. § 124.60(g).
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b. Filing Requirements
Any interested person may request an evidentiary hearing on the Regional
Administrator's final NPDES permit decision. 26 A request for an evidentiary
hearing must be submitted to the Regional Administrator who made the final permit
decision. 27 Requests for evidentiary hearings must be made within 30 days
following the service of notice of the Regional Administrator's final permit decision
under 40 C.F.R. § 124.15. An evidentiary hearing request may not raise issues that
were not submitted to the administrative record during the comment period on the
draft permit unless good cause is shown for the failure to submit such issues. 28
Good cause includes the case where the issues could not have been reasonably
ascertained at the time of the comment period. 29
c. Genuine Issues of Material Fact
Under the regulations, an evidentiary hearing will not be granted unless the
party requesting the hearing raises a material issue of fact relevant to the issuance of
the permit. 30 The Board has construed this to mean that the Regional Administrator
must ensure that there is a genuine issue of material fact. 31 This standard has two
elements. First, the factual dispute must be "material." A factual dispute is material
where, under the governing law, it might affect the outcome of the proceeding. 32
Second, the factual dispute must be a genuine issue. In the context of an evidentiary
hearing request, a genuine issue of material fact exists only if a party requesting an
evidentiary hearing presents sufficient probative evidence from which a reasonable
M If the requester is not the permittee, the requester must serve the permittee simultaneously as required by
40 C.F.R. § 124.74(a).
27 A permit does not become effective pending a decision on an evidentiary hearing request. Sgg 40 C.F.R.
§ 124.15(b).
28 40 C.F.R. § 124.76.
29 |d-
30 §eg 40 C.F.R. §§ 124.74(b)(1) and 124.75(a)(1).
31 See In re Mavaguez Regional Sewage Treatment Plant. Puerto Rico Aqueduct & Sewage Authority. NPDES
Appeal No. 92-23, at 11 (EAB, Aug. 23, 1993), aff d Puerto Rico Aoueduct and Sewer Authority v. Browner. No.
93-2340 (Aug. 3, 1994, 1st Cir.).
32 Id. at 12; see also Boise Cascade Corporation. NPDES Appeal No. 91-20, at 6-8 (EAB, Jan. 15, 1993).
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decisionmaker could find in either party's favor, by a preponderance of the
evidence. 33
d. Appeals of Legal Issues
Legal issues may not be directly appealed to the Board. A person wishing to
raise legal issues must also first request an evidentiary hearing on the issues. If the
legal issues are raised along with material issues of fact, the Regional Administrator
may grant a hearing on both the factual issues and the legal issues, and the
Administrative Law Judge would then decide both types of issues. 34 If the legal
issues are not accompanied by factual issues, the person wishing to raise the legal
issues must nevertheless request an evidentiary hearing on such issues. Because they
are not accompanied by issues of material fact, the Regional Administrator must deny
such a request. The denial of the request can then be appealed to the Board, 35
which has the authority to decide such issues.
e. The Regional Administrator's Decision
The Regional Administrator must grant or deny an evidentiary hearing request
within 30 days following the expiration of the time allowed by 40 C.F.R. § 124.74 for
submitting an evidentiary hearing request. 36 If an evidentiary hearing is granted, the
Regional Administrator is required to give public notice of such action under 40
C.F.R. § 124.57(b). Any person interested in the permit, for which an evidentiary
hearing has been granted must request to be a party to preserve any right of appeal or
otherwise contest any decision. 40 C.F.R. § 124.57(b)(3)(iii).
f- Appeals to the Board From Denial
of Evidentiary Hearing Requests
or Following an Evidentiary Hearing
If an evidentiary hearing is held, then any party to the hearing may appeal any
matter set forth in the initial decision or any adverse order or ruling to which the
33 In re Boise Cascade Corp.. NPDES Appeal No. 91-20, at 6-8 (EAB, Jan. 15, 1993); In re Mavaquez.
Regional Sewage Treatment Plant. Puerto Rico Aqueduct & Sewage Auth.. NPDES Appeal No. 92-23, at 13 (EAB,
Aug. 23, 1993).
34 40 C.F.R. § 124.74.
M 40 C.F.R. § 124.74.
34 40 C.F.R. § 124.75. But sge In re City & County of San Francisco. NPDES Appeal No. 91-18 at 32
(EAB, Mar. 24, 1993) (Region's failure to act within 30 days does not take away Region's permitting discretion).
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party objected during the hearing. If the Regional Administrator denies an evidentiary
hearing on one or more issues, then the requester may also appeal the denial to the
Board. In either case the appeal will be governed by 40 C.F.R. § 124.91(a). Such an
appeal must be filed within 30 days after service of an initial decision, or a denial in
whole or in part of a request for an evidentiary hearing. 37 Within the same period,
the Board may on its own motion decide to grant review of the initial decision or
denial. 38 Neglect or failure to seek review by the Board waives the opportunity for
judicial review. 40 C.F.R. § 124.60(g).
(1) Standard of Review
The standard of review under 40 C.F.R. § 124.91(a) is similar to that under 40
C.F.R. § 124.19(a). Ordinarily a petition for review is not granted unless the
Regional Administrator's denial or the Administrative Law Judge's decision is clearly
erroneous or involves an exercise of discretion or policy that is important and should
therefore be reviewed by the Board. 39 There is no appeal as of right from the
Regional Administrator's or Administrative Law Judge's decision. 40 The petitioner
has the burden of demonstrating that review should be granted.
(2) Actions Following the Board's
Decision on Whether to Grant Review
The Board must either grant or deny review of a petition within a "reasonable
time." 41 If the Board denies review of the petition, then upon service of the
decision denying review, final agency action will occur for purposes of judicial
37 40 C.F.R. § 124.91(a)(1). The Board has construed filing to mean "received" by the Board by the
expiration of the filing period. Note, when service of the notice is accomplished through the mail, service is
deemed to be completed when the notice is mailed, not when it is received. However, to compensate for the delay
of mailing, the 30-day deadline for filing a petition is extended by 3 days if the final permit decision being appealed
was served on the petitioner by mail. 40 C.F.R. § 124.20(d). A document is not considered filed with the Board
until it js received by the Board. Therefore, merely putting a petition into the mail does not constitute filing for
purposes of meeting the filing deadline.
38 40 C.F.R. § 124.91(b).
39 §ee, §Jti. In re Citv of Jacksonville. District II Wastewater Treatment Plant. NPDES Appeal No. 91-19
(EAB, August 4, 1992).
40 In re Miners Advocacy Council. NPDES Appeal No. 91-23, at 3 (EAB, May 29, 1992).
41 40 C.F.R. § 124.91(c)(1).
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review. 42 If the Board grants review of the petition, the petitioner may file a brief in
support of the petition within 21 days after the Board has granted the petition. Any
other party may then file a responsive brief within 21 days of service of the
petitioner's brief. 43 The petitioner may file a reply brief within 14 days of service
of the responsive brief. Any person may file an amicus brief within the same time
periods that govern reply briefs. 44 The Board may limit briefing to certain
designated issues. 45 The Board may also direct the parties to appear before it for
oral argument.
After granting review, the Board will take one or a combination of the
following actions: (1) summarily affirm without opinion the Presiding Officer's initial
decision or the Regional Administrator's denial of an evidentiary hearing request
under 40 C.F.R. § 124.91(d); (2) affirm with a decision; (3) direct that the permit be
redrafted in accordance with the Board's instructions and reissued and served upon all
parties to the appeal; or (4) remand the proceeding for further consideration by the
Regional Administrator. 46 If the Board takes the fourth action listed above, final
agency action will not occur until completion of the remand proceedings including any
appeals to the Board. 47
(3) Appeals of Issues Relating
to State Certification
Under 40 C.F.R. § 124.55(e), if an NPDES permit requirement is "attributable
to State certification," any challenge to it must be brought in State court and may not
be brought in a permit appeal before the Board. The Board has held that a permit
requirement is "attributable to State certification" if the State certification letter
specifying the inclusion of the requirement "communicates the idea that the permit
requirement cannot be made less stringent and still comply with the State water quality
42 40 C.F.R. § 124.91(0.
43 40 C.F.R. § 124.91(g).
44 Id-
45 40 C.F.R. § 124.91(c)(1)
46 40 C.F.R. § 124.91(f).
47 M-
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13
standard." 48 If, however, the State's certification letter merely states that the permit
requirements in the draft NPDES permit prepared by EPA will not violate any State
water quality standards, the Board has held that such permit requirements are not
"attributable to State certification" because the State's certification letter leaves open
the possibility that the permit requirements could be made less stringent and still
comply with the water quality standards. 49
(4) The Effect of a Board
Appeal on an NPDES Permit
If someone has appealed the results of an evidentiary hearing to the Board
under 40 C.F.R. § 124.91, the stay of the entire permit (in the case of an initial
permit) or of contested portions of the permit (in the case of a discharger with an
existing permit) that was in effect during the evidentiary hearing remains in effect
until final agency action occurs under Section 124.91. 50 If an appeal of the denial
of an evidentiary hearing request is timely filed, the entire permit (in the case of an
initial permit) or the contested portions of the permit (in the case of a discharger with
an existing permit) are stayed until the appeal is resolved and final agency action
occurs under 40 C.F.R. § 124.91.
C. Reconsideration. Clarification, or Stays Before the EAB
Under 40 C.F.R. § 124.19(g) and § 124.91(i), a party adversely affected by a
Board decision may seek reconsideration and a stay of the Board's decision. The
Board has not granted such motions absent a showing that the Board has made a clear
error, such as a mistake of law or fact. Although the rules do not expressly provide
for motions for clarification, the Board has entertained such motions where the
moving party seeks not to change the order but only to understand some aspect of the
order that it considers ambiguous. Where a motion for clarification seeks a
modification of some aspect of the order, however, the Board has treated it as a
motion for reconsideration subject to the 10-day filing deadline for such motions. In
re Adcom Wire, d/b/a Adcom Wire Comoanv. RCRA Appeal No. 92-2 (EAB,
July 25, 1994) (Order on Adcom's Motion for Clarification).
48 In re General Electric Company. Hooksett. New Hampshire. NPDES Appeal No. 91-13, at 5 (EAB, Jan. 5,
1993).
49 In re Boise Cascade Corporation. NPDES Appeal No. 91-20, at 11 n.7 (EAB, Jan. 15, 1993).
30 40 C.F.R. § 124.60(a)(1), (c)(1) & (e). The Board ruled In re Formosa Plastics Corp.. NPDES Appeal
No. 93-11 (EAB, Dec. 17, 1993), that under § 124.60(a) an ALJ may grant requests to begin discharging by new
sources pending the outcome of appeals on evidentiary hearing request denials.
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D. Judicial Review
Judicial review of EAB permit decisions is governed by the provisions in the
different environmental statutes. 51 EAB permit decisions are reviewable in the
Courts of Appeals based on the administrative record before the Agency. Importantly,
the regulations governing appeals to the EAB specify that final agency action does not
occur until final action by the EAB or after a final permit decision by the Regional
Administrator following the Board's decision. 52
The standard of judicial review of EAB decisions is governed by traditional
administrative law principles. The courts will review the EAB's legal determinations
to ensure that they are proper. The courts consistent with established administrative
law principles have deferred to EPA's legal interpretations of both its own statutes and
regulations. 53 Where a hearing has been held, the EAB's adjudicatory decisions will
be accepted if supported by "substantial evidence on the record as a whole." 54 The
EAB's policy judgments will not be overturned unless "arbitrary and capricious." 55
III. APPEALS FROM HEARINGS GOVERNED BY
THE CONSOLIDATED RULES-PART 22
A. The Scope of the Consolidated Rules
Most of EPA's administrative enforcement hearings, and the focus of this
Section, relate to proceedings governed by the consolidated rules under Part 22. 56
51 See, e.g.. Clean Air Act, Section 307(b)(1), 42 U.S.C. § 7607(b)(1); Clean Water Act, Section 509(b)(1),
33 U.S.C. § 1369(b)(1); RCRA Section 7006, 42 U.S.C. § 6976.
40 C.F.R. Part 23 establishes rules governing the "timing" of agency action for purposes of the specific
judicial review provisions noted above.
52 Ses 40 C.F.R. § 124.19(f).
53 Arkansas v. Oklahoma. U.S. , 112 S. Ct. 1046, 117 L. Ed. 2d 239 (1992).
54 M-, 112 S. Ct. at 106.
55 Id. The Supreme Court decision arises from a case decided under EPA's former Chief Judicial Officer
system and, therefore, serves as useful precedent.
54 Hearings under Part 22 are heard by EPA's Administrative Law Judges (ALJs). At present EPA has
seven judges, including a Chief Administrative Law Judge who has general responsibility for the office. For a
more indepth discussion of Part 22 seg Harwood, Hearings Before an EPA Administrative Law TiiHgo. 17 ELR
10441 (Nov. 1987).
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The scope of the consolidated rules is set forth in 40 C.F.R. § 22.01. These rules
govern proceedings for: 57
(1) The assessment of any civil penalty conducted under section
14(a) of the Federal Insecticide, Fungicide and Rodenticide
Act as amended (7 U.S.C. § 1361(a));
(2) The assessment of any administrative penalty under sections
113(d)(1), 204(c), 211(d) and 213(d) of the Clean Air Act,
as amended (CAA) (42 U.S.C. §§ 7413(d)(1), 7524(c),
7545(d) and 7547(d));
(3) The assessment of any civil penalty or for the revocation or
suspension of any permit conducted under section 105(a)
and (f) of the Marine Protection, Research, and Sanctuaries
Act as amended (33 U.S.C. § 1415(a));
(4) The issuance of a compliance order or the issuance of a
corrective action order, the suspension or revocation of
authority to operate pursuant to section 3005(e) of the Solid
Waste Disposal Act, or the assessment of any civil penalty
under sections 3008, 9006 and 11005 of the Solid Waste
Disposal Act, as amended (42 U.S.C. § 6928, 6991(e) and
6992(d)), except as provided in 40 C.F.R. parts 24 and
124.
(5) The assessment of any civil penalty conducted under section
16(a) of the Toxic Substances Control Act (15 U.S.C.
§ 2615(a));
(6) The assessment of any Class II penalty under section 309(g)
of the Clean Water Act (33 U.S.C. § 1319(g));
(7) The assessment of any administrative penalty under section
109 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42
U.S.C. § 9609);
,7 Importantly, there are supplemental rules under 40 C.F.R. Part 22 at § 22.33 to § 22.43.
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(8) The assessment of any administrative penalty under section
325 of the Emergency Planning and Community Right-To-
Know Act of 1986 (EPCRA) (42 U.S.C. § 11045); and
(9) The assessment of any civil penalty conducted under section
1414(g)(3)(B) of the Safe Drinking Water Act as amended
(42 U.S.C. § 300g-3(g)(3)(B)).
B. Board Approval Over Certain Pre-hearing Settlements
Under the Agency's rules, an ALJ is not assigned to hear the case until after an
answer is filed. 58 It is not unusual for the parties to discuss the possibilities of
settlement during the 20-day time-period allowed for filing an answer. In fact, the
rules expressly recognize the Agency's interest in settling cases before hearings. 59
("The Agency encourages settlement of proceeding * * *.")60 Because an ALJ has
not yet been assigned, motions for extension of time within which to file an answer
are made to the Regional Administrator, if the complaint is initiated from a Region or
to the Environmental Appeals Board, for cases initiated at EPA Headquarters.
If an action settles anytime before commencement of the hearing the parties are
required to prepare both a "consent agreement" and a proposed "consent order,"
known collectively as a "CACO." The rules provide that a consent agreement does
not finally resolve the action until a consent order is signed by the Regional
Administrator. Where a Regional Administrator is not involved, however, as in
Headquarters-initiated cases, the Administrator (by delegation, the Environmental
Appeals Board) serves this function. 61
58 £ge 40 C.F.R. § 22.21.
59 See 40 C.F.R. 8 22.18.
60 For an Agency attorney's perspective on the settlement process sge Walker, High Stakes On A Fast Trade:
Administrative Enforcement at EPA. 35 Fed. B. News & J. 440 (1989).
61 These matters usually involve TSCA and FIFRA, although orders can arise under other statutes. On
January 5, 1993, the Board adopted formal procedures for review of CACOs. In general the Board focuses on
two areas. First, it seeks to assure itself that the agreement adequately remedies the violation. Second, it will
carefully examine the penalty amount to determine whether it comports with the applicable penalty policies.
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C. Appeals Under Part 22
1- Interlocutory Appeals
40 C.F.R. § 22.29 governs interlocutory appeals. 62 A motion for
certification must be made to the Presiding Officer within six days after service of the
order from which an appeal is proposed. 63 The standards for granting an
interlocutory appeal are set forth in 40 C.F.R. § 22.29(b). Essentially, an
interlocutory appeal will be accepted where: (1) the order or ruling involves an
important legal or policy issue and (2) an immediate appeal will advance the
proceeding or cannot be adequately reviewed after the final order. 64
The EAB has 30 days to take action on a certification, or the appeal will be
dismissed. As a matter of practice, when the Board intends to take the matter it will
issue an order within the 30 day period and, if appropriate, provide a schedule for
briefs or oral argument. The Board will rarely issue a substantive ruling within 30
days.
2. Appeals From Initial Decisions 65
a. Notice of Appeal
Any party has 20 days from service of an adverse initial decision to appeal.
The notice of appeal is to be accompanied by a supporting brief. The Board has
strictly applied this timeliness requirement. Thus, absent extraordinary circumstances
which the Board determines warrant relaxation 66 a late appeal will be dismissed.
See, e.g.. In re Production Plated Plastics. RCRA (3008) Appeal No. 92-3, at 3 n.2
62 Presiding Officers frequently issue interlocutory decisions. These decisions generally arise from partial
accelerated decisions, but may also involve issues relating to discovery or the introduction of evidence.
63 If certification is denied, the party may appeal directly to the EAB within 6 days of the refusal to
certify. 40 C.F.R. § 22.29(c).
64 The EAB has ruled that parties do not waive any rights by failing to pursue an interlocutory appeal.
Rather, the issue will be preserved for subsequent review. Seg In the Matter of Wego Chemical & Mineral
Com.. TSCA No. 92-4 at 21 (EAB, Feb. 24, 1993).
85 Under the consolidated rules the ALJ's final decision is called the "initial decision." The initial
decision will become the final agency decision after 45 days of service unless (1) an appeal to the EAB is taken
or (2) the EAB elects, sua sponte, to review the initial decision. A party seeking to appeal must file an appeal
within 2Q days of service of the initial decision. 40 C.F.R. § 22.30.
64 Sgg In re B&B Wrecking and Excavating. TSCA No. 92-2 at 2 (EAB, Apr. 23, 1992).
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(EAB, Feb. 9, 1994). 67 Similarly, the EAB will not normally consider issues that
were not formally appealed. 68
Because Part 22 does not provide additional time to file a cross-appeal (unlike
Rule 4(a)(3) ofF.R.A.P.), a litigant must file an appeal without knowing whether the
other side will also appeal. Of course, if no other appeal is filed, a protective notice
of appeal can be voluntarily withdrawn with prejudice.
b. Scope of Review
The Board has de novo review authority over the Presiding Officer's factual
and legal conclusions. 40 C.F.R. § 22.31(a) provides that the Board shall "adopt,
modify or set aside the findings and conclusions contained in the decision or order
being reviewed." This reflects the formulation in the Administrative Procedure Act (5
U.S.C. § 551 et §££.). 69
Notwithstanding the provision for de novo review, the Board has stated that it
will generally give deference to the Presiding Officer's findings of fact based upon the
testimony of witnesses. 70 The EAB has also generally not reversed decisions based
on hypertechnical procedural arguments. 71 The Board has been insistent that the
Agency meet its burden of proof by proving a violation as set forth in the complaint
by a preponderance of the evidence. 72
47 Where a document, including an initial decision, is served by mail, five (S) days shall be added to the timp
allowed by the rules for the filing of a pleading or document, including an appeal. 40 C.F.R. § 22.07(c).
48 The Board does, however, have the authority under § 22.31(a) to consider the entire matter de novo.
w See 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the power
which it would have in making the initial decision except as it may limit the issues on notice or by rule.").
10 "[Although the Board may make its own factual findings, it will generally give weight to the Presiding
Officer's findings since the Presiding Officer had the opportunity to hear the witnesses and to evaluate their
credibility." In re Port of Oakland and Great Lakes Dredge and Dock Company. MPRSA Appeal No. 91-1, at
28 n.59 (EAB, Aug. 5, 1992). Similarly, the Board has given deference to ALJ's on the admissibility of
evidence. In Te Great Lakes Division of National Steel. EPCRA Appeal No. 93-3 at 17-18 (June 29, 1994).
71 As it stated in In re Port of Oakland and Great Lakes Dredge and Dock Company. MPRSA 91-1 at 41
(EAB, Aug. 5, 1992) ("the Board adheres to the generally accepted legal principle that 'administrative pleadings
are liberally construed and easily amended"'). See also In re Weeo Chemical & Mineral Corp.. TSCA Appeal
No. 92-4, at 13 (EAB, Feb. 24, 1993).
71 £ge 40 C.F.R. § 22.24. That section, entitled "Burden of Presentation; Burden of Persuasion,"
provides:
(continued...)
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Finally, the Board is authorized to increase or decrease the assessed penalty
from the amount recommended to be assessed in the decision or order being reviewed,
except that if the order being reviewed is a default order, the Environmental Appeals
Board may not increase the amount of the penalty. 73
3. Sua Sponte Review
The Board has 45 days to determine whether it wishes to review an initial
decision SM sponte. 74 The Board has used this authority sparingly. 75
4. Final Orders and Reconsideration
The Board is responsible for issuing a final order that serves as final agency
action. 76 Parties dissatisfied with the decision may seek reconsideration from the
Board within 10 days of service of the order, but a motion for reconsideration will not
stay the effective date of the order unless specifically ordered by the Board. 77
n{.. .continued)
The complainant has the burden of going forward with and of proving that
the violation occurred as set forth in the complaint and that the proposed civil
penalty, revocation, or suspension, as the case may be, is appropriate.
Following the establishment of a prima facie case, respondent shall have the
burden of presenting and of going forward with any defense to the allegations
set forth in the complaint. Each matter of controversy shall be determined by
the Presiding Officer upon a preponderance of the evidence.
See In re Nello Santacroce & Dominic Fanelli. D/B/A Gilrov Associates. TSCA Appeal No. 92-6 (EAB,
Mar. 25, 1993).
73 40 C.F.R. § 22.31(a).
74 See. 40 C.F.R. § 22.30(b). The Board has provided that where a party seeks an extension of time to file
an appeal, beyond the 45 days provided for sug sponte review, the Board will extend the period for sua sponte
review so that the Board may still exercise its discretion in the event an appeal is not filed. In addition, the Board
has syg sponte review authority over the decisions issued by Regional Presiding Officers, under proposed Part 28,
56 Fed. Reg. 30,033 (1991). Regional Presiding Officer's are authorized to hear a number of matters including
certain smaller penalty cases. Id.
75 The Board has exercised this authority only once to date. See In the Matter of Wheland Foundry. RCRA
(3008) Appeal No. 93-2 (Dec. 3, 1993).
76 • 40 C.F.R. §22.31(a).
77 Such orders may include an order to pay a civil penalty under 40 C.F.R. § 22.31(b) which provides:
(continued...)
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5. Special Rules for Appeals from Federal
Facility Orders Under Part 22
One new category of Part 22 cases within the Board's jurisdiction is the
issuance of administrative orders to Federal facilities under RCRA. These orders are
authorized by the Federal Facility Compliance Act of 1992, Pub. Law No. 102-386.
Under that statute, Federal agencies are to be treated the same as private parties with
regard to the compliance and enforcement provisions of RCRA, including penalty
liability. However, no order to a Federal facility will become final until the Federal
agency has had "the opportunity to confer with the Administrator." 78 The Agency
will follow the Part 22 procedures in an administrative enforcement action under this
statute, including the opportunity for an appeal to the Board. The only difference is
that the Federal agency may request a meeting with the Administrator, in keeping with
Section 102(b)(2), after service of the final decision by the Board. 79 No such cases
have reached the Board to date.
IV. SPECIAL RULES GOVERNING CERTAIN CLEAN AIR
ACT ENFORCEMENT PROCEEDINGS AND APPEALS
In certain cases the statute mandates a different procedure than that provided
for in 40 C.F.R. Part 22. These include two types of Clean Air Act enforcement
actions under the Clean Air Act § 120 and § 207. Appeals from these enforcement
decisions are governed by the regulatory sections dealing with those actions.
A. Clean Air Act § 120
The procedures for hearing cases under Clean Air Act § 120 are found at 40
C.F.R. Part 66. Appeals are governed by 40 C.F.R. § 66.95.
"(...continued)
Payment of a civil penalty. A respondent shall pay the full amount of the
civil penalty assessed in the final order within sixty (60) days after receipt of
the final order unless otherwise agreed by the parties. Payment shall be
made by forwarding to the Regional Hearing Clerk a cashier's check or
certified check in the amount of the penalty assessed in the final order,
payable to the Treasurer, United States of America.
78 Section 102(b)(2) of the Federal Facility Compliance Act of 1992, 42 U.S.C. § 6961(b)(2).
79 §§£ "Final Enforcement Guidance on Implementation of the Federal Facility Act," issued by the Steven
Herman, Assistant Administrator for Enforcement and Thomas L. McCall, Jr., Acting Deputy Assistant
Administrator for Federal Facilities Enforcement, on July 6, 1993 (58 Fed. Reg. 49,044 (Sept. 21, 1993)).
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B. Clean Air Act § 207(c)
Another proceeding under the Clean Air Act where an adjudicative hearing is
provided is where EPA requires an automobile manufacturer to recall a class or
category of motor vehicles when EPA has found that a substantial number of vehicles
do not conform to the emission standards though properly maintained or used. 40
C.F.R. § 85.1807.
Recall decisions may be appealed to the EAB, or reviewed by the EAB sua
sponte under 40 C.F.R. §§ 85.1807(b) and (v).
V. SPECIAL RULES GOVERNING FIFRA PROCEEDINGS
The rules of practice governing hearings under the FIFRA, arising from:
(1) refusals to register; (2) cancellations of registrations; (3) changes of classifications;
(4) suspensions of registrations; and (5) other hearings called pursuant to section 6 of
the FIFRA, are governed by 40 C.F.R. Part 164. Appeals are governed by
§ 164.101-103. Importantly, the EAB has only 90 days from the close of a hearing
(an initial decision) or from the filing of an accelerated decision to issue a final
decision for the Agency. The EAB's final order may accept or reject all or part of an
ALJ's decision, even if it is acceptable to the parties. 40 C.F.R. § 164.103. 80
Special rules apply to Expedited hearings, §££ 40 C.F.R. §§ 164.120-123, and for
modifications to previous Cancellation and Suspension Orders. 40 C.F.R.
§ 164.130-133.
VI. CERCLA S 106(b) PETITIONS FOR REIMBURSEMENT
SinCe June 8, 1994, the Environmental Appeals Board has been authorized to
issue final decisions granting or denying petitions for reimbursement submitted under
section 106(b)(2) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. § 9606(b)(2). Section 106(b)(2) allows
any person who has complied with an EPA order issued under section 106(a) of the
statute to petition for reimbursement of the reasonable costs incurred in complying
with the order, plus interest. In order to establish a claim for reimbursement, a
petitioner must demonstrate that it was not liable for response costs under CERCLA
80 The EAB does not receive many appeals under these provisions..
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section 107(a), or that the Agency's selection of the ordered response action was
arbitrary, capricious, or otherwise not in accordance with law. 81
The Environmental Appeals Board has issued a detailed guidance document,
"Guidance on Procedures for Submitting CERCLA Section 106(b) Petitions and on
EPA Review of Those Petitions" (June 9, 1994), describing the information that
petitioners are expected to submit and the procedures that the Board intends to follow
in evaluating section 106(b) petitions. Persons who believe they may be eligible to
assert a claim under section 106(b) should refer to the guidance document for a fuller
discussion of the applicable procedures, which are summarized in the following
paragraphs.
By statute, a petition for reimbursement must be filed "within 60 days after
completion of the required action." 82 Upon receipt of a petition, the Environmental
Appeals Board will issue a letter to the appropriate EPA regional office soliciting a
written response to the petition. The regional office is expected to submit its written
response to the petition within sixty days after the date of the Board's letter.
In addition, on or before the date on which its petition is filed with the Board,
the petitioner must inform the appropriate EPA regional program office that the
required action is complete, and must request the regional office to confirm or deny
the fact of completion in writing. The regional office is expected to respond to that
request within sixty days after the request is received.
Absent a threshold dispute concerning whether the administrative order in
question is subject to section 106(b)(2), 83 whether the required action has been
completed, 84 or whether the petition is timely, the Board will proceed to evaluate the
merits of the petitioner's claim. The Board may, in its discretion, request
81 The constitutionality of the reimbursement procedure established in section 106(b)(2) was upheld in
Employers Insurance of Wausau v. Browner. 848 F. Supp. 1369 (N.D. 111. 1994).
82 For the purpose of determining a petitioner's compliance with the statutory sixty-day deadline, the Board
will look to the postmark date if the petition is sent to the Board by certified mail, or to the date of receipt by the
Board if the petition is sent by any other means.
83 Reimbursement under section 106(b)(2) is not available for costs incurred under an administrative order
issued before October 17, 1986. See Wagner Seed Co. v. Bush. 946 F.2d 918 (D.C. Cir. 1991), cert, denied. 112
S. Ct. 1984 (1992); Bethlehem Steel Com, v. Bush. 918 F.2d 1323 (7th Cir. 1990).
84 If the petitioner has not completed the required action and has therefore not "complie[d] with the terms of"
the Agency's section 106(a) order, the petition for reimbursement is subject to denial without regard to the merits
of the petitioner's claims. §& Employers Insurance of Wausau v. Clinton. 848 F. Supp. 1359 (N.D. 111. 1994).
A new petition may be filed upon completion of the action.
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supplemental briefing, direct the parties to present oral argument, or refer particular
factual questions to a hearing officer for the purpose of conducting an evidentiary
proceeding. In most cases, however, the Board expects that it will issue a preliminary
decision based on the petition, the regional office's response to the petition, and the
underlying administrative record. Each preliminary decision will be accompanied by
an index identifying the documents that are referred to in the decision.
Within thirty days after the date of service of the Board's preliminary decision,
the petitioner and the regional office may submit comments on the proposed decision.
The Board will then prepare and issue a final decision, which will be subject to
judicial review to the extent provided in CERCLA section 106(b)(2)(B), 42 U.S.C.
§ 9606(b)(2)(B).
VII. SPECIAL REQUIREMENTS FOR MOTIONS FILED WITH THE BOARD
The Board will accept motions for additional time, permission to submit an
additional pleading or for some relief on a matter not expressly provided for under the
above-discussed rules as provided for below. In order for the Board to act on any
such motion, the Board requires that (1) the motion be in writing; (2) the motion
represent the views of the opposing party as to their concurrence or objection to
granting of the request; 8S and (3) the motion be filed well-enough in advance (at a
minimum 2 working days), so that the Board may give the motion proper
consideration in advance of any other filing deadline. 86
VIII. CONCLUSION
The foregoing manual is intended to provide an explanation of the Board's
authority and a description of its basic responsibilities. In addition, the appendices
attached to the manual are intended to be samples to assist individuals and groups that
may find themselves in proceedings before the Board. Individuals or groups seeking
additional information regarding the Board should address their inquiries to the Clerk
of the Board, who is responsible for assisting any persons having questions about the
Board.
83 If the requester cannot reach the opposing party, after making a reasonable effort to reach the opposing
party, the requester may represent that fact in the requestor's pleading.
86 As noted above, the Board will accept motions by facsimile ("fax"), although the Board requires that a copy
be either mailed or delivered to the Board within 24 hours following transmission of the fax in order to eosure
receipt.
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Appendix A
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
CO
ro
m
z
<
53
o
IN THE MATTER OF
HSWA Permit No. NYD080335052
BUFFALO COLOR CORPORATION
RCRA APPEAL 92
>
-o
"O
m
>
r
LP
PETITION FOR REVIEW OF HSWA PERMIT
Pursuant to 40 C.F.R. § 124.19(a), Buffalo Color Corporation
petitions for review of the conditions of Final HSWA Permit No.
NYD080335052, received by Buffalo Color Corporation ("BCC") on
June 8, 1992. Certain permit conditions are based on erroneous
findings of fact and conclusions of law. These errors also
involve significant policy matters which warrant discretionary
review by the Environmental Appeals Board.
Buffalo Color Corporation ("BCC") occupies a plant site of
approximately 61 acres in the City of Buffalo, New York, at which
it has, since 1977, manufactured dyestuffs. The plant site was
previously used by Allied Chemical Corporation for the
manufacture of dyestuffs and other chemicals. BCC properly
applied for permits from the Environmental Protection Agency
("EPA") pursuant to the Resource Conservation and Recovery Act
("RCRA") and the Hazardous and Solid Waste Amendments ("HSWA").
BCC has also applied for and is awaiting a final permit from the
New York Department of Environmental Conservation ("NYDEC")
pursuant to NY ECL Art. 27, Titles 7 and 9, and 6 NYCRR Parts
370-373.
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By letter of October 31, 1991, BCC submitted comments on
Draft HSWA Permit No. NYD080335052. A copy of those comments is
attached as Exhibit 1. By letter of June 4, 1992, Laura J.
Livingston, Chief, Permits Administration Branch, U.S. EPA Region
II, transmitted to BCC the Final Permit Decision, HSWA Permit No.
NYD080335052. BCC received this transmittal on June 8, 1992.
Included with this transmittal were: a letter from Laura J.
Livingston, Chief, Permits Administration Branch to Gordon
Bolles, Jr., Manager-Technical, Buffalo Color Corp. (June 4,
1992). (Attached as Exhibit 2); a memo from Andrew Bellina,
Chief, Hazardous Waste Facilities Branch to Laura Livingston,
Chief, Permits Administration Branch (May 29, 1992), attaching
the final HSWA permit and requesting processing of it. (Attached
as Exhibit 3); a Notice of Issuance of a Final HSWA Permit,
signed by Conrad Simon, Director, Air and Waste Management
Division, and noted "Date Served, June 5, 1992." (Attached as
Exhibit 4); a Responsiveness Summary signed by Conrad Simon (May
20, 1992). (Attached as Exhibit 5); the Final HSWA Permit, I.D.
Number NYD080335052, signed by Conrad Simon, (May 20, 1992).
(Attached as Exhibit 6).
By its terms, HSWA Permit No. NYD080335052 is effective as of
July 8, 1992, unless appealed, and remains in effect until July
8, 1997. The filing of this Petition for Review stays the
effective date of this HSWA permit.
-2-
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ISSUES ON WHICH REVIEW IS SOUGHT
1. The Region Exceeded its Authority in
Regulating "Areas of Concern."
The Administrator has considered a number of RCRA Appeals in
which permittees complained about imposition of corrective action
on areas which are not Solid Waste Management Units ("non-
SWMUs"), sometimes designated as "areas of concern."—/ Although
EPA maintains that the "omnibus" authority of RCRA § 3005(c)(3),
42 U.S.C. § 6925(c)(3), authorizes imposition of corrective
action on non-SWMUs, the Region has exceeded even this authority
in BCC's permit. The Environmental Appeals Board should address
the significant issues presented by the use of" the term "area of
concern" in BCC's permit.
The term "area of concern" ("AOC") in this permit reflects
several errors. (a) As used in BCC's permit, an AOC need not
even pose any threat to human health or the environment to
warrant action. This is flatly contrary to the "omnibus"
authority of 40 C.F.R. § 270.32(b)(2), relied upon by the
Region. (b) In BCC's permit, all conditions applicable to SWMUs
are made, by definition, applicable to AOCs. As a result, BCC is
compelled to carry out non-SWMU corrective action in exactly the
same manner as SWMU corrective action, for areas that neither are
SWMUs nor present a threat to human health or the environment.
1/ E.g., In re Morton Int'l, Inc., RCRA Appeal No. 90-17, 1992
RCRA LEXIS 18 (EPA 1992); In re LCP Chemicals, RCRA Appeal
No. 90-4 (EPA 1991); In re Amerada Hess Corp. Port Reading
Refinery. RCRA Appeal No. 88-10, 1989 RCRA LEXIS 25 (EPA
1989).
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(c) Respectfully, the Environmental Appeals Board should reassess
prior EPA decisions which have erroneously concluded that
corrective action conditions in permits may be imposed on non-
SWMUs.
EPA has made clear that, even under its view of its omnibus
authority, non-SWMU corrective action must be precisely tailored
to address a specific threat. In In re Morton Int'l, Inc., RCRA
Appeal No. 90-17, 1992 RCRA LEXIS 18 (EPA 1992), EPA found
authority in 40 C.F.R. § 270.32(b)(2) for designation of specific
AOCs which presented a threat to public health or the
environment. However, the Administrator was clear that the
omnibus authority should "not be used as a blank check for
unbridled regulation without an adequate nexus to solid or
hazardous waste." In Morton, specific, limited-type corrective
action (a workplan to confirm the existence of a suspected
release) was upheld for an AOC.
In BCC's permit, in contrast, an AOC is defined to include
all requirements applicable to SWMUs.—/ The corrective action
imposed on the single AOC (AOC 1, Condition III.A.,3. (c) ) is
exactly the same as the corrective action imposed on SWMUs at the
site. Indeed, the Region changed the requirements for AOC 1 from
the draft to final permit. The draft permit would have required
only a first phase RFI for AOC 1, to confirm whether there are
releases of concern; the final permit requires a full RFI for
2/ See, Conditions I.L.2, I.L.9.
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AOC 1. This is despite the fact that the Region has failed to
show that any corrective action, much less treatment as a SWMU,
is warranted for AOC 1.—^ The RCRA Facility Assessment (RFA) on
which the Region relied recommended only that the idle buildings
be cleaned and the residues tested. !/ These significant,
substantive requirements for AOCs in this permit illustrate the
emptiness of the Region's Response to Comment 5, where it said
that the term AOC has no significance because it had not been
"invoked in connection with any of the substantive requirements
of this HSWA permit .... [making it] at worst, a harmless,
superfluous definition."
By virtue of the definitions, the final permit compels BCC to
consider all other permit terms which apply to SWMUs as applying
to AOCs, including Conditions III.B.6 (Interim Corrective
Measures), III.C (Assessment of Newly Identified SWMUs), III.D
3/ The Region justified the change from the draft to the final
permit condition on the grounds that BCC had asserted there
was widespread contamination at the site. See, Response to
Comments 12, 13. It is clear, however, that BCC's comment
concerned the relationship of contamination among the
discrete SWMUs the Region identified, rather than evidence
that some additional threat was presented by AOC 1. Thus the
Region misconstrued BCC's comment and provided inadequate
justification for the changed condition. At the same time,
the Region refused to consider and address BCC's substantive
comments on how to assess the discrete SWMUs identified in
the draft permit.
4/ See, RFA, DRAFT Sampling Visit Workplan Outline, p. 2
(Revised Mar. 10, 1989); RCRA Facility Assessment (Revised
Apr. 1991). (Attached as Exhibit 7.) BCC notes that
although the Permit identifies the Idle Buildings as Building
316 and 310, the reference should be to Building 320; there
was no building 310 identified in the RFA.
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(Notification Requirements for Newly-Discovered Releases to
SWMUs) and all other SWMU-related requirements. The permit
definition of AOC is so vague and open-ended that generic
application of all SWMU permit conditions to AOCs leaves BCC with
no way of determining whether it can comply with the permit.
Since an AOC can mean any areas of the facility with "potential
or suspected contamination" of hazardous constituents (in no
defined quantity), the practical effect of the definition
combined with other permit conditions is to treat the entire
facility as a SWMU. This is inconsistent with EPA's regulations,
the statute and prior precedent. See, In re American Cyanamld
Co., RCRA Appeal No. 89-8, 1991 RCRA LEXIS 22 (EPA 1991).
BCC respectfully suggests that the Environmental Appeals
Board should reverse EPA precedent allowing imposition of
corrective action on non-SWMUs. The statute and regulations are
clear that corrective action under Section 3004(u) is available
for releases from SWMUs only. 42 U.S.C. § 6924(u); 40 C.F.R. §
264.101(a). When EPA defended its interpretation that the term
"facility" for purposes of corrective action encompassed the
entire contiguous property, industry parties complained that if
EPA imposed corrective action on non-SWMUs, it would be exceeding
its legal authority. In United Technologies Corp. v. United
States EPA, 821 F.2d 714, 723 (D.C. Cir. 1987), the Court of
Appeals was able to reject this claim because it found that EPA
had eschewed authority to impose corrective action on areas of
property "not used for the management of solid waste." To reach
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its conclusion, the Court of Appeals relied upon EPA preambles
which reflected the Agency's view that corrective action had to
be applied to releases associated with SWMUs. See, e.g., 50 Fed.
Reg. 28,702, 28,713-14 (1985).
Now EPA's position is that non-SWMU corrective action is
authorized not by Section 3004(u) but rather by Section
3005(c)(3). Although Section 3004(u) is limited by its own terms
to SWMUs, prior agency decisions have declined to give that
limited language any significance. The Agency has said that
since interim status corrective action, 42 U.S.C. § 6928(h), is
not limited to SWMUs, it does not have to read permit corrective
action as so limited.-5/ Respectfully, there is good reason for a
different coverage for interim status corrective action and
permit corrective action. Interim status corrective action
orders arise before EPA has conducted the complete facility-
specific assessment that should be done in the course of issuing
final permits. Prior to obtaining the detailed information
about, inter alia, the SWMUs at a facility, Congress gave EPA
broader authority in Section 3008(h) -- to order "corrective
action or such other response measure" as deemed necessary to
protect human health or the environment — to abate releases of
hazardous waste. In contrast, the issuance of a final permit
H/ See, e.g., In re Amerada Hess Corp. Port Reading Refinery,
RCRA Appeal No. 88-10, 1989 RCRA LEXIS 25 (EPA 1989); In re
Morton Int'l, Inc., RCRA Appeal No. 90-17, 1992 RCRA LEXIS 18
(EPA 1992).
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involves a detailed process of obtaining precise, site-specific
information about the SWMUs and other conditions at facilities
that are to be permitted. In light of the expected greater level
of information, it is not at all surprising or inconsistent for
Section 3004(u) to restrict corrective action authority to
SWMUs. In addition, for unanticipated non-SWMU problems, the
agency has authority under 42 U.S.C. § 6973 to address and abate
imminent threats at permitted facilities.
This interpretation is also consistent with other aspects of
the permit program.—/ Before the HSWA amendments and
consistently thereafter, EPA has recognized the principle of
repose in permit terms. The "permit as shield" provision, 40
C.F.R. § 270.4, is built on the principle that the permit process
will reveal and address waste management issues, so that
subsequent compliance with permit terms will satisfy all legal
requirements. The provisions of EPA's regulations addressing
permit modifications, addressed below, Issue 2, also reflect the
principle that significant information about hazardous waste at a
facility will become part of the permit terms through a permit
modification. Each of these provisions is based on an assumption
that at the time of permit issuance (or modification),
information sufficient to justify site-specific decisions will be
J3/ EPA has not proposed a system for non-SWMU corrective action,
through designation of AOCs, in the proposed Subpart S
regulations. See, 55 Fed. Reg. 30,798 (1990).
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available. This same assumption explains a different scope of
corrective action authority under Section 3004(u) and Section
3008(h).
There is no reason to believe that the omnibus authority was
intended to change the text of other statutory provisions, such
as modifying Section 3004(u) to read like Section 3008(h). Nor
is it appropriate that corrective action, which was so
specifically accounted for in the 1984 HSWA amendments, should be
expanded through use of Section 3005(c)(3), enacted previously.
Accepted principles of statutory construction instruct that the
more specific terms of a statute control over more general
terms. See, Clifford F. MacEvoy Co. v. United States, 322 U.S.
102, 107 (1944); AT&T v. FCC, 487 F.2d 865, 877 n.26 (2d Cir.
1973); Markair, Inc. v. Civil Aeronautics Board, 744 F.2d 1383,
1385 (9th Cir. 1984).
The following permit terms are in error on this basis:—/
a. Condition I.L.2., unlawfully defining Areas of
Concern. (Comment 5)
b. Condition I.L.9., defining Solid Waste Management Unit
("SWMU") and unlawfully providing that all permit .conditions for
SWMUs shall apply to AOC. (Comment 7)
c. All conditions utilizing the term SWMU to the extent
that, as a result of a. and b. herein, that term also means AOC.
d. Condition III.A.3.(c)(i), requiring a full RCRA RFI for
AOC 1. (Comment 13)
7J For each condition, BCC identifies the Comment number which
EPA assigned to the comments submitted by BCC on the draft
permit. This demonstrates that the issue was raised during
the comment period.
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2. Significant Permit Changes Should
be Permit Modifications.
Failure to make permit modifications when significant changes
are made in a HSWA permit is erroneous under the regulations and
presents a serious policy issue. EPA's regulations provide that
the RCRA permit program will be administered in a manner that
allows opportunity for public comment and appeal on significant
permit conditions. Contrary to this principle, none of the
future significant changes in BCC's permit conditions, with the
exception of final selection of clean up measures, will be
treated as permit modifications under this permit.
BCC recognizes that EPA has rejected related but
distinguishable claims in the past,—/ but urges the Environmental
Appeals Board to hear this issue on full briefing. EPA's
position was not upheld on judicial review in W.R. Grace & Co. v.
United States EPA, 959 F.2d 360 (1st Cir. 1992), and the First
Circuit decision creates new policy issues warranting EPA
attention. The First Circuit was able to find that W.R. Grace's
claims were unripe because it held, contrary to the position of
the Region here,—/ that the permittee could seek to have those
subsequent permit changes which it felt should be permit
modifications treated as permit modifications, with judicial
0/ In re W.R. Grace & Co., RCRA Appeal No. 89-28, 1991 RCRA
LEXIS 8 (EPA 1991); In re Waste Management of Illinois, Inc.,
RCRA Appeal No. 89-27, 1991 RCRA LEXIS 9 (EPA 1991).
9/ See, e.g., Responsiveness Summary, pp. 3-4, 7, 8, 11-12, 14.
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review at that future time. See, 959 F.2d at 367. The First
Circuit thus declined to affirm EPA's decision on the basis
presented by the agency. Compare, In re W.R. Grace & Co., RCRA
Appeal 89-28, 1991 RCRA LEXIS 8 (EPA 1991).
EPA has maintained that it must avoid the administrative
burden of frequent permit modifications as the grounds for not
treating essentially any changes to permit requirements as permit
modifications. However, the rationale of the W.R. Grace decision
exposes the agency to frequent litigation in the future over
whether specific permit changes warrant permit modification. The
Environmental Appeals Board should accept this appeal and avoid
these future disputes by requiring the Region to establish
clearer initial permit terms and a more balanced, fair process
regarding permit modifications.
Failure to allow permit modifications for major permit
changes violates the regulations, and deprives BCC of any
semblance of administrative due process. EPA's regulations
contemplate that information discovered after a permit is issued
will provide grounds for an agency-initiated permit modification;
40 C.F.R. § 270.41(a)(2) authorizes permit modification by EPA
based on new information which "was not available at the time of
permit issuance." Similarly, 40 C.F.R. § 270.41(a)(4) authorizes
modification of permits by EPA to alter compliance schedules.
Under 40 C.F.R. § 270.42, permit modifications requested by the
permittee are divided into three classes. Because they include
major changes warranting greater procedural rights, class 2 and
class 3 permit modifications must undergo wide public notice and
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an opportunity for comment. Section 270.42 Appendix I provides
that modification to corrective action permit conditions fall
into class 2 or 3. This regulatory structure confirms that
changes to corrective action permit conditions that constitute
permit modifications must undergo notice and comment, including
the opportunity for judicial appeal, if EPA is to adhere, as it
must, to its own procedural regulations.
Under BCC's permit, however, the Region has prohibited any
such notice and comment or appeal rights. If new information
reveals the existence of additional SWMUs, or new releases from
SWMUs warranting corrective action, the permit is not modified to
impose new conditions. Rather, the new conditions may be
unilaterally imposed by the Region, after affording BCC
essentially no hearing rights. See, e.g., Response to Comment
4. The public has no right to comment on the changed or added
conditions, and no one has a right to appeal. Any new permit
conditions established in this manner will be fully enforceable
against BCC, even though BCC will have no right to challenge
them. AO/
10/ If BCC challenges such changes as permit modifications, EPA
will contend simply that the change is "authorized by the
permit" and BCC should have challenged the condition when the
permit was issued. If BCC refuses to comply so as to
challenge the modification in an enforcement action, EPA will
contend that the modification is not at issue, only the
permittee's noncompliance. If BCC waits until some future
permit modification that imposes corrective measures, the
damage from compliance with interim permit changes will have
occurred and be irremediable. The process is cleverly
designed so that such modifications are never subject to
substantive review.
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"The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful
manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976);
Connecticut v. Doehr, 111 S. Ct. 2105 (1991), aff'g Plnsky v.
Duncan, 898 F.2d 852 (2d Cir. 1990). The "dispute resolution"
provided under Condition I.M of BCC's permit does not meet the
standards of due process, as BCC will brief fully if this
petition is grantedThe Environmental Appeals Board should
allow full briefing on this issue, to develop a complete record
on the issue.
The following permit conditions are unlawful on this basis:
a. Condition I.K. unlawfully provides that subsequent
changes in permit terms relating to compliance schedules
(referenced as condition E.10 of Module III) will not be treated
as permit modifications. (Comment 3)
b. Condition III.A.3.(b) unlawfully provides that
information identifying additional SWMUs does not constitute new
information warranting a permit modification but rather will be
addressed by unilateral EPA directives under the existing permit
terms .-==•' (Comment 11)
11/ The First Circuit in W.R. Grace declined to address the
merits of the due process claims. BCC notes, however, that
it is challenging permit conditions which are.imposed based
upon newly discovered information in the future — a matter
specifically covered by the permit modification
regulations. The W.R. Grace opinion, in contrast, focused
possible future disputes between the Region and the permittee
over revisions to reports and studies required under the
permit. See, e.g., W.R. Grace & Co., 959 F.2d 360, 363, 365
(1st Cir. 1992).
12/ The Region provided confusing and inconsistent responses to
BCC on these points. In response to Comment 11, the Region
stated that the immediacy and magnitude of potential
responses to new SWMUs will be determined by EPA on a case-
by-case basis; EPA would decide whether interim measures
would be required immediately or, if new SWMUs "are of a
lesser magnitude, a permit modification may be
appropriate." That, however, is not what Condition
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c. Condition III.B.6 unlawfully provides for imposition of
interim corrective measures which should be permit
modifications .-=-5-' The permit authorizes only the opportunity for
a conference, characterized as "dispute resolution," upon
imposition of such measures, rather than treating such new
requirements as permit modifications.i^/ (Comments 15, 16)
d. Condition III.B.8 unlawfully provides for imposition of
"new or more extensive assessments, investigations or studies"
based on possible new information in the future. Such changes to
BCC's study, investigation and reporting obligations based on new
information must be imposed as permit modifications. (Comment
17)
e. Condition III.C, subparts III.C.2 through III.C.6
unlawfully impose requirements for the study, sampling, analysis
and assessment of newly identified SWMUs. If new information
arises identifying a new SWMU, the permit should be modified in
accordance with the regulations to account for the newly
discovered information. (Comment 18)
f. Condition III.D. unlawfully requires BCC to investigate
and remediate newly discovered releases from SWMUs in accordance
with other generic permit conditions. If new information
identifies newly discovered releases from SWMUs, the permit may
be modified in accordance with the regulations to account for the
newly discovered information. (Comment 19)
III.A.3.(b) provides, nor is it consistent with the remainder
of the response, which says that BCC must use the permit's
"dispute resolution" provisions in the event of disagreement
with the Region. Since EPA has authority under Section 7003
to address emergencies requiring immediate action, it cannot
justify retaining open-ended power in BCC's permit to
unilaterally add new conditions out of concern- for future
emergency situations.
13/ The Region's position is contrary to EPA's proposed
corrective action regulations. In the preamble to the
proposal, EPA acknowledges that interim corrective action
will have to be imposed by either a permit modification or by
exercise of the "imminent and substantial endangerment"
authority of 42 U.S.C. § 6973. See, 55 Fed. Reg. 30,798,
30,838 (1990). Yet the Region is trying to impose interim
corrective action authority on BCC without using these
authorities.
14/ Those conference procedures do
due process standards approved
v. United States EPA, 873 F.2d
not even rise to the minimum
Chemical Waste Management
1477 (D.C. Cir. 1989).
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g. Conditions III.E.5 through III.E.9 unlawfully establish
conditions for action based upon information not yet available.
If new information arises, the permit may be modified in
accordance with the regulations to account for the newly
discovered information. (Comment 21)
h. Condition III.E.10 unlawfully provides that
modifications of the compliance schedule are not treated as
permit modifications. (Comment 23)
i. Appendix A should have been deleted as it establishes an
unlawful process for conducting a RCRA Facility Investigation
("RFI") in the event that new information warrants an RFI. If,
in the future, EPA believes that new information warrants
conducting an RFI, the permit should be modified to account for
that new information. (Comment 25)
j. Appendix C unlawfully establishes future compliance
schedules for matters which should be treated as permit
modifications. (Comment 28)
3. Failure to Account for Site Specific Conditions.
The Region ignored appropriate site-specific information in
developing permit conditions, utilizing instead "boiler plate"
text. BCC developed a site-specific Facility Investigation which
the Region refused to use to develop the permit terms. And even
though the Region agreed that BCC's recommended organization of
SWMUs would be more feasible, the Region declined to tailor the
permit to these specific site conditions. At the .same time, the
Region insisted upon permit conditions retaining broad
discretionary authority to itself, which it justified on the
basis of the need to be able to deal with "site-specific
information." (See, e.g., Response to Comment 10). The Region
has failed to explain its unwillingness to include the site-
specific information now available, based upon the Part B
Application, the RFA and the permit process generally. This is
particularly egregious since the Region has retained unreviewable
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discretion to impose site-specific conditions after the permit is
issued without affording the permittee or the public the review
available for a permit modification.-^/
In In re American Cyanamid Co., RCRA Appeal No. 89-8, 1991
RCRA LEXIS 22 (EPA 1991), EPA required that permits be "tailored
to the site-specific conditions present" at the facility. 1991
RCRA LEXIS 22, *10. In rejecting BCC's site-specific facility
investigation plan, Region II did not find fault with the plan
but merely reiterated that it was including terms that followed
agency guidance. However, the facility investigation submitted
by BCC carefully accords with EPA guidance, applying it to the
specific site. The Region cannot reject this merely because it
prefers "boiler plate" of generic application. Good policy, and
agency precedent, require that permit terms be as specific as
information allows, to inform the public and the permittee of the
required actions.
The Region's response to Comment 26 represents a blatant
refusal to deal with site-specific information in the context of
the permit issuance process. If the Region can ignore without
explanation site-specific information, the permit application and
review process could be much simpler. The permit application
could be limited to the permittee's name and address, with the
Region supplying boilerplate permit conditions, as it did here.
Under that boilerplate, the Region reserves complete authority to
address site-specific information in an unreviewable fashion.
15/ See also, discussion at pp. 7-9.
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Surely Congress did not authorize this cavalier dismissal of
site-specific information at time of permit issuance.
The Region also persisted in identifying numerous specific
SWMUs at the site, rejecting BCC's comment that the site should
have one active SWMU composed of Areas ABCE, and one inactive
SWMU composed of Area D, to facilitate efficient study and
remediation. Instead, the Region retained seven SWMtJs and one
AOC, subdividing the facility in an impractical fashion.
The following conditions are in error on this basis:
a. Condition III.A.3.(c), designating multiple SWMUs.
(Comments 12, 13)
b. Appendix E, requiring a full RFI for AOC 1 which must
follow Appendix E. (Comment 13)
c. Appendix A and in particular Part VI of Appendix A,
which should have been replaced with the site-specific Facility
Investigation. (Comments 25, 26)
d. Appendix B, imposing generic boiler plate. (Comment 27)
e. Appendix D, imposing generic boiler plate. (Comment 30)
4. Guidances May Not be Imposed as Permit Conditions.
The Region included as mandatory permit conditions all
standard components of Appendix D to the permit, even though
those terms have never been formally promulgated as
regulations. The Region justified this condition as being
consistent with an EPA Guidance, SW-846, 3rd Edition,
Chapter I. In a similar error, the Region provided in Condition
III.B.4 that EPA and New York guidance documents were to be
followed as permit conditions. In addition, the Region sought to
justify conditions based on guidance which it misapplied.
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Utilizing these general guidances as permit conditions is
inconsistent with 40 C.F.R. § 260.11, which enumerates those
guidances which may be used for regulatory purposes. EPA has
already held that other guidances are not mandatory- See, In re
Hoechst Celanese Corp., RCRA Appeal No. 87-13, 1989 RCRA LEXIS 3
(EPA 1989) (SW-846 is mere guidance, not "an inflexible
regulatory requirement"). 1989 RCRA LEXIS 3, *16.
The following conditions are unlawful on this basis:
a. Condition I.F.9.(c) unlawfully establishing QA/QC
submittal standards. (Comment 1)
b. Condition III.B.4 unlawfully requiring compliance with
EPA and New York guidance documents. (Comment 14)
c. Condition III.B.6(a) seeking to justify interim
corrective measures based on consistency with OSWER 99024 which,
in fact, does not support the condition but instead provides
guidance concerning site specific, interim corrective
measures .-=2/ (Comment 15).
5. Establishment; of Permit Terms Based upon
Proposed Regulations Violates Due Process.
The Region has reserved the authority in BCC's permit to
establish ad hoc action levels for hazardous constituents.
Nothing in EPA's regulations authorizes this, nor is it
consistent with EPA's proposed corrective action regulations. 55
Fed. Reg. 30,798 (1990). In the Subpart S proposal, EPA set
forth four criteria to be met in establishing such action levels;
the Region has not included these criteria in BCC's permit. Thus
16/ OSWER 99024 provides examples of specific kinds of interim
corrective measures. It does not support inclusion of a
boiler plate process for possible future interim corrective
measures, subject only to internal dispute resolution as
advocated by the Region in response to BCC's comment.
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even to the extent that the Region seeks to justify these
conditions as consistent with EPA policy, the permit terms are
not consistent with EPA policy reflected in the proposed
corrective action regulations.
Most of the conditions in Module III of the permit derive
from the proposed corrective action regulations, rather than from
existing regulations or arising from site-specific needs. These
conditions are inconsistent with the permit text found at page
ii, which explains that "Applicable regulations are those which
are in effect on the date of issuance of this Permit. ..." In
addition, 40 C.F.R. § 270.41(a)(3) provides that changes in
applicable regulations constitute grounds for a permit
modification. If EPA finalizes Subpart S corrective action
regulations, it can modify permits to accord with any new
regulations.
Inclusion of these terms derived from the proposed corrective
action regulations is not supported by the "omnibus" authority of
Section 3005(c)(3) or 40 C.F.R. § 270.32(b)(2) because the Region
has made no attempt to show that the corrective action process it
has included is a condition necessary to protect human health and
the environment. An agency's action can be upheld, if at all, on
the basis articulated by the agency itself. Motor Vehicle
Manufacturers Assoc. of the United States, Inc. v. State Farm
Mutual Auto. Ins. Co., 463 U.S. 29, 50 (1983).
Fundamentally, however, permittees should not be subject to
permit conditions based on proposed but not final regulations.
The selected action level will determine the steps the permittee
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will be required to undertake in the Corrective Measures Study
(CMS) and other work. The chosen action level can change
dramatically the nature of this study, the cost to conduct it,
and the cost of any interim or final corrective measures
imposed. If ad hoc action levels are arbitrarily selected, the
permittee is without remedy from these consequences.—/ That is
why action levels should be imposed based only on promulgated
standards which have undergone the "truth testing" of notice and
comment rulemaking.
The following conditions are unlawful on this basis:
a. Condition I.L.I, all text after first two sentences,
defining "action levels". (Comment 4)
b. Condition III.E.8, authorizing imposition of corrective
measures based upon clean up standards developed under permit
terms. (Comment 22)
c. Condition III.A.2, describing a corrective action
process not provided for by regulation. (Comments 9, 10)
d. Condition III.E, describing a corrective action process
not provided for by regulation. (Comments 20, 21)
6. Corrective Action for Constituents Below Action Levels.
The Region has unlawfully required that Corrective Measures
Studies be performed where hazardous constituents are found in
concentrations below action levels. EPA lacks authority to
impose such requirements as they are not necessary to protect
human health or the environment. The "omnibus" authority of 42
U.S.C. § 6925(c)(3) and 40 C.F.R. § 270.32(b)(2) does not support
such requirements, since by its terms it authorizes, at most,
17/ BCC will fully brief the due process issues if the appeal is
granted.
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requirements necessary to protect human health and the
environment. See, e.g., In re Morton Int'l Inc., RCRA Appeal 90-
17, 1992 RCRA LEXIS 18 (EPA 1992); In re Amerada Hess Corp. Port
Reading Refinery, RCRA Appeal 88-10, 1989 RCRA LEXIS 25 (EPA
1989).
The following condition is in error on this basis:
Condition III.A.2, reserving to EPA the right to establish
such requirements in the description of the corrective action
process. (Comment 10).
CONCLUSION
For the reasons stated herein, the Environmental Appeals
Board should accept this appeal, review the challenged conditions
of BCC's permit, and set aside the unlawful conditions.
Respectfully submitted,
ECKERT SEAMANS CHERIN & MELLOTT
-
Attorneys for Buffalo Color
Corporation
2100 Pennsylvania Avenue, N.W.
Suite 600
Washington, D.C. 20037
-21-
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CERTIFICATE OF SERVICE
I hereby certify that the Petition for Review of HSWA Permit
was served on this 2nd day of July, 1992 as follows:
By hand delivery to:
United States Environmental Protection Agency
Office of the Administrator
Environmental Appeals Board (A-101)
401 M Street, S.W.
Room 1145 (West Tower)
Washington, D.C. 20460
By first-class, United States mail to:
Ms. Laura J. Livingston, Chief
Permits Administrative Branch
United States Environmental Protection Agency
Region II
26 Federal Plaza
New York, New York 10278
-22-
-------
LIST OF EXHIBITS
Exhibit 1
Exhibit; 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Draft HSWA Permit No. NYD080335052 Comments
submitted by Buffalo Color Corp.
Letter from Laura J. Livingston, Chief, Permits
Administration Branch to Gordon Bolles, Jr.,
Manager-Technical, Buffalo Color Corp.
(June 4, 1992)
Memo from Andrew Bellina, Chief, Hazardous Waste
Facilities Branch to Laura Livingston, Chief,
Permits Administration Branch (May 29, 1992)
Notice of Issuance of a Final HSWA Permit, signed
by Conrad Simon, Director, Air and Waste Management
Division, and noted "Date Served, June 5, 1992"
Responsiveness Summary signed by Conrad Simon
(May 20, 1992)
Final HSWA Permit, I.D. Number NYD080335052, signed
by Conrad Simon (May 20, 1992)
RFA, DRAFT Sampling Visit Workplan Outline (Revised
Mar. 10, 1989); RCRA Facility Assessment (Revised
Apr. 1991)
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Appendix B
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of
Safety-Kleen Corporation,
Odenton Service Center
RCRA Appeal No. 94-1
Permit No. MDD-982678385
ORDER
Petitioner, Safety-Kleen Corporation, and Respondent, U.S.
EPA Region III, have filed a joint motion asking that this case
be remanded without prejudice so that the parties may continue to
pursue settlement discussions. Upon consideration, the joint
motion is hereby granted. RCRA Permit No. MDD-98268385 is hereby
remanded to Region III so that the Region may attempt to resolve
its differences with the Petitioner in technical and settlement
discussions. This remand is without prejudice to either party's
right to request reinstatement of the appeal if that should prove
necessary. In the event the parties cannot resolve this matter
after remand, Petitioner and/or Respondent can reinstate the
appeal by written notice to the Environmental Appeals Board.
So ordered.
Dated: July 19, 1994
Environmental Appeals Judge
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CERTIFICATE OP SERVICE
I hereby certify that copies of the foregoing Order in the
matter of Safety-Kleen Corporation, RCRA Appeal No. 94-1, were
sent to the following persons in the manner indicated:
First Class Mail
Postage Prepaid:
Sarah P. Keating
Assistant Regional Counsel
U.S. EPA, Region III
841 Chestnut Street
Philadelphia, PA 19107
Robert D. Fox
Manko, Gold & Katcher
Suite 500
401 City Avenue
Bala Cynwyd, PA 19004
Headquarters Hearing Cleric
Room 3708 (1900)
By Mail Pouch:
Bessie Hammiel
Dated: JUL 20 1994
Mildred ty. Johnson
Secretary
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Appendix C
STATUS OF STATE DELEGATION**
STATES
NPDES
PSD
NSR
TITLE V
RCRA
UIC
PWSS
Alabama
X
X
X
/
X
X
Alaska
X
X
/
X
Arizona
X
X
~
X
Arkansas
X
X
X
~
X
X
California
X
X
X
~
/
X
Colorado
X
X
X
~
/
X
Connecticut
X
X
X
/
X
X
Delaware
X
X
X
/
X
X
District of Columbia
/
X
/
Florida
X
X
/
/
X
Georgia
X
X
X
+
X
X
Hawaii
X
X
X
X
Idaho
X
X
~
X
X
Illinois
X
X
X
~
X
X
Indiana
X
X
X
/
/
Iowa
X
X
X
X
X
Kansas
X
X
X
X
X
Kentucky
X
X
X
/
X
Louisiana
X
X
/
X
X
Maine
X
X
/
X
X
Maryland
X
X
X
/
X
X
Massachusetts
X
X
/
X
X
Michigan
X
X
X
/
X
Minnesota
X
X
X
f
X
Mississippi
X
X
X
/
X
X
Missouri
X
X
X
/
X
X
Montana
X
X
X
/
X
Nebraska
X
X
X
/
X
X
Nevada
X
X
X
~
X
X
New Hampshire
/
X
/
X
X
New Jersey
X
X
X
/
X
X
New Mexico
X
X
/
X
X
-------
New Yoric
X
X
X
~
X
North Carolina
X
X
X
~
X
X
North Dakota
X
X
X
~
X
X
Ohio
X
X
X
/
X
X
Oklahoma
X
X
/
X
X
Oregon
X
X
X
/
X
X
Pennsylvania
X
X
X
/
X
Rhode Island
X
X
X
/
X
X
South Carolina
X
X
X
/
X
X
South Dakota
X
~
/
X
Tennessee
X
X
X
/
X
Texas
X
X
X
~
X
X
Utah
X
X
X
~
X
X
Vermont
X
X
X
/
X
X
Virginia
X
X
X
/
X
Washington
X
/
X
/
X
X
West Virginia
X
X
X
/
X
X
Wisconsin
X
X
X
~
X
X
Wyoming
X
X
X
X
American Samoa
-
X
Cuam
.
.
•
/
X
X
North Marianas
.
X
X
Puerto Rico
-
-
•
X
X
Trusted Territories
-
X
Virgin Islands
X
X
Note regarding Tide V: States are not required to submit operating permit programs
until November IS, 1993
" EPA retains auchoricy over designated Native American reservations.
-------
LEGEND:
X States that are fully authorized under the given statute
/ States that are partially authorized under the given statute
+ States that will receive delegation in November 1993
~ States that are authorized for most major requirements; joint Federal/State permits may be necessary
- Information currently unavailable
NPDES National Pollutant Discharge Elimination System
PSD Prevention of Significant Deterioration (one section of NSR)
NSR New Source Review (other than the PSD section)
Includes major dischargers only in nonactainment areas and minor dischargers in all areas
TITLE V Operating programs under Title V of the Clean Air Act
RCRA Resource Conservation and Recovery Act
UIC Underground Injection Control
PWSS Public Water System Supervision program
-------
Appendix D
r,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT 2 I 1993
OFFICE OF
THE ADMINISTRATOR
Harley F. Laing
Regional Counsel
U.S. EPA, Region I
John F. Kennedy Federal Building
One Congress Street
Room 2203
Boston, MA 02203
Dear Mr. Laing:
Enclosed is a petition dated October 14, 1993, (received on
October 20, 1993) asking the Environmental Appeals Board to
review the Regional Administrator's denial of petitioner's
request for an evidentiary hearing. The petition was filed under
40 CFR §124.91 by the Town of Rockland Sewer Commission of
Rockland, Massachusetts.
To assist the Environmental Appeals Board in deciding
whether the matters raised by petitioner should be reviewed,
please have your staff prepare a response that addresses the
petitioner's contentions and whether petitioner has satisfied the
requirements for obtaining review under 40 CFR §124.91. Include
relevant portions of the administrative record with the response,
together with a certified index of the administrative Record.
Please file an original and one copy of these materials no later
than December 6, 1993, and send a copy of the response and the
certified index to petitioner.
Please note that all submissions, including the materials
due December 6, 1993, shall reference the appeal number above and
are to be filed with the Environmental Appeals Board, see 57 Fed.
Reg. 5320 (Feb. 13, 1992). Submissions made by mail shall be
sent to the address indicated below:
Re: Town of Rockland Sewer Commission
Docket Number: MAO101923
Appeal ^uptfrey: ffPDSS 93"8
U.S. Environmental Protection Agency
Environmental Appeals Board (MC-1103B)
401 M Street, SW
Washington, DC 20460
^ Printed on Recycled Paper
-------
2
Submissions made by hand delivery shall be made at the
following address:
U.S. Environmental Protection Agency
Environmental Appeals Board
Westory Building
607 14th Street, NW
Suite 500
Washington, DC 20005
A copy of this letter is being sent to each petitioner as
notification of these filing requirements. The office on 607
14th Street N.W. is open for business during the hours of 8:00
A.M. to 5:00 P.M., excluding weekends and federal holidays.
Thank you for your attention to these matters.
Sincerely yours,
lEurika Stubbs
Clerk of the Board
Enclosure
cc w/o end.: Albert R. Petrel 1
Acting Chairman
Town of Rockland Sewer Commission
P. 0. Box 33 0
Rockland, Massachusetts 02370
w/encl.: David A. Fierra, Director
Water Management Division
U.S. EPA, Region I
John F. Kennedy Federal Building
One Congress Street
Boston, MA 02203-2211
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Appendix E
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 1 6 1994
THE ADMIN ISTRATCR
MEMORANDUM
SUBJECT: Expedited Administrative Review of Appeals of RCRA
Permit Denials Filed by Interim Status Hazardous Waste
Combustion Facilities
On May 18, 1993, I announced EPA's Draft Hazardous Waste
Minimization and Combustion Strategy. The draft strategy sets as
top priorities the reduction of hazardous waste at the source and
the implementation of fully protective controls at hazardous
waste combustion facilities.
As part of the draft strategy, I directed the Regions to
give priority to permit decisions for existing hazardous waste
combustion facilities operating under interim status requirements
while awaiting final action on their RCRA permit applications.
This priority is important because interim status requirements
are generally less stringent than permit requirements. In
addition, the draft strategy calls for improved permitting
processes and public involvement. One area targeted for
improvement was the process governing the denial of final permits
because of a facility's inability to demonstrate compliance with
the permit requirements of RCRA.
Under the regulations governing appeals of RCRA permit
decisions, a facility can petition the Environmental Appeals
Board to review the Region's decision within thirty days of that
decision. The filing of a petition for review with the Board
automatically stays, the effective date of the Region's decision
denying a final permit until the Board takes final ac-tion on the
petition and the Region issues a final permit decision based on
the Board's disposition. Thus, where a facility appeals a
decision denying its permit application or challenges permit
conditions that are more stringent than the applicable interim
standards, the facility can continue to operate under the interim
status standards during the pendency of the appeal. There is
presently no fixed timeframe within which the Board must act upon
petitions for. review of RCRA permit denials.
TO:
Environmental Appeals Board
-------
2
In order to ensure the prompt cessation of hazardous waste
combustion at facilities that have been denied a final permit by
the Region, while still preserving the important role of
administrative review, I am today directing the Board to give its
highest priority to appeals of Regional RCRA permit denial
decisions for interim status combustion facilities. Absent truly
extraordinary circumstances, I am directing the Board to take
final action on any such appeal no later than 9 0 days following
the Board's receipt of the petition for review. This directive
shall take effect immediately. In addition, in cases where a
permit establishing more stringent permit conditions is granted
but appealed, if the facility's continued operation during the
appeal subject to-the less restrictive interim status standards
has particularly serious environmental consequences, the Regions
will be asked to so notify the Board and I expect the Board to
adjust its priorities accordingly.
I believe that this approach, which has been endorsed by the
Assistant Administrator for Solid Waste and Emergency Response
and SPA's Waste Minimization and Combustion Strategy Steering
Committee, will help us achieve the goal of aggressively
controlling hazardous waste combustion facilities. Furthermore,
this approach addresses in direct fashion one of the important
parts of our May 18 draft strategy — enhancing the permitting
process such that timely decisions are made in a manner
consistent with strong protection of human health and the
environment.
Carol M. Browner
-------
Appendix F
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON/ D.C.
In the Matter of:
Mayaguez Regional Sewage
Treatment Plant
Puerto Rico Aqueduct and
Sewer Authority
Docket Nos. PR0023795
NPDES Appeal No. 92-23
C.3
C..J
r O
— —*
" J
-a
• «
ro
m
3
<
n
5
m
>
r
t/i
MOTION OP PUERTO RICO AQUEDUCT AND SEWER AUTHORITY
POR RECONSIDERATION AND STAY PENDING RECONSIDERATION OR APPEAL
Pursuant to 40 C.F.R. §124.91(i), the Puerto Rico Aqueduct
and Sewer Authority ("PRASA"), by and through its undersigned
attorneys/ respectfully moves the Environmental Appeals Board
("Board") (1) to reconsider the Board's Order Denying Review
(decided August 23, 1993) ("Order")/ of the Region II
Administrator's denial of an evidentiary hearing on PRASA's
application under Section 301(h) for a permit modification for
its Mayaguez Regional Sewage Treatment Plant ("Mayaguez")/ and
(2) to stay immediately the effective date of the Order pending
such reconsideration, or, (3) in the event that petitioner's
Motion for Reconsideration is denied, to stay immediately the
effective date of the Order pending PRASA's judicial appeal to
the United States Court of Appeals for the First Circuit,
pursuant to 33 U.S.C. § 1369. As grounds therefore, PRASA
submits as follows:
-------
1. The Board has dramatically and erroneously departed from
the EPA regulations and its own precedents in creating a new
standard of review for requests for an Evidentiary Hearing.
2. The Board has displaced the function of the Region II
Administrator. Where the Region II Administrator conducted only
a cursory review of a USGS report submitted by PRASA in support
of its request for an evidentiary hearing on the eff'e'ct of a
discharge on stressed waters, the Board engaged in detailed
examination of the content of the USGS report, rather than
appropriately remanding the issue to Region II for further fact-
finding.
3. Under the existing legal standard for obtaining an
evidentiary hearing, see 40 C.F.R. §§ 124.74(b)(1) and
124.75(1)(l), PRASA has met its burden of raising an issue of
material fact: whether PRASA's discharges contribute to the
level of stress in the waters adjacent to the Mayaguez outfall.
4. PRASA meets the burden for obtaining an immediate stay
of the effective date of the Order because (a) PRASA has a strong
likelihood of prevailing on the merits of its motion for
reconsideration or its appeal, (b) PRASA is irreparably harmed,
(c) the stay is unlikely to harm others, and (d) the public
interest is concurrent with the issuance of stay where it is
unlikely to harm others, so that resources are efficiently
expended for the resolution of the substantive issues of PRASA's
permit modification.
A memorandum in support of this Motion to Reconsider and
Stay Pending Reconsideration or Appeal is submitted herewith.
-------
3
WHEREFORE, for the reasons set forth above and discussed
more fully in the accompanying memorandum, PRASA respectfully
requests that the Board enter (1) an immediate order staying the
effective date of its Order, and (2) a order granting the Motion
to Reconsider its Order. Proposed orders are attached.
Respectfully submitted,
By:
Neil T. Proto, Esq.
Mary A. Fejfar, Esq.
Kathleen M. Cronin, Esq.
VERNER, LIIPFERT, BERNHARD
MCPHERSON AND HAND, CHARTERED
901 15th Street, N.W.
Washington, D.C. 20005
(202) 371-6000
Counsel for Puerto Rico Aqueduct
and Sewer Authority
DATED: September 7, 1993
-------
Appendix E
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 1 6 !99
-------
2
In order to ensure the prompt cessation of hazardous waste
combustion at facilities that have been denied a final permit by
the Region, while still preserving the important role of
administrative review, I am today directing the Board to give its
highest priority to appeals of Regional RCRA permit denial
decisions for interim status combustion facilities. Absent truly
extraordinary circumstances, I am directing the Board to take
final action on any such appeal no later than 90 days following
the Board's receipt of the petition for review. This directive
shall take effect immediately. In addition, in cases where a
permit establishing more stringent permit conditions is granted
but appealed, if the facility's continued operation during the
appeal subject to-the less restrictive interim status standards
has particularly serious environmental consequences, the Regions
will be asked to so notify the Board and I expect the Board to
adjust its priorities accordingly.
I believe that this approach, which has been endorsed by the
Assistant Administrator for Solid Waste and Emergency Response
and EPA's Waste Minimization and Combustion Strategy Steering
Committee, will help us achieve the goal of aggressively
controlling hazardous waste combustion facilities. Furthermore,
this approach addresses in direct fashion one of the important
parts of our May 18 draft strategy — enhancing the permitting
process such that timely decisions are made in a manner
consistent with strong protection of human health and the
environment.
Carol M. Browner
-------
Appendix G
ENVIRONMENTAL APPEALS BOARD
CONSENT ORDER REVIEW PROCEDURES
The Environmental Appeals Board is delegated the authority
to sign for the Environmental Protection Agency consent orders
memorializing settlements between the Agency and respondents
resulting from various administrative enforcement actions. This
authority encompasses orders under the Toxic Substances Control
Act (EPA Delegation 12-2-C) ; the Federal Insecticide, Fungicide
and Rodenticide Act (5-15-B), the Solid Waste Disposal Act (8-9-
C, 8-27, 8-44), and other statutes. Under the terms of the
delegations, these orders may assess penalties and, in some
circumstances, require compliance.
To assure that the Board may properly perform its approval
function, starting January 1, 1993, any proposed order shall be
transmitted to the Board by an action memorandum signed by either
the Assistant Administrator for Enforcement or the Deputy
Assistant Administrator for Enforcement, which includes the
following:
1. A non-CBI copy of the complaint.
2. A detailed explanation of how the proposed
agreement is consistent with applicable
penalty guidelines or, if not, why not; with
a brief statement of the facts describing
both the allegations of the complaint and how
the settlement addresses each of the
violations identified.
3. A summary of any human health or
environmental concerns presented by the
respondent's actions or why there are no
concerns.
-------
2
4. An explanation of how the order addresses the
disposition of any substances or wastes
identified in the complaint, including any-
additional steps, if required, to address any
past exposure to the environment.
5. A brief description of any past or pending
actions involving this same respondent
arising out of the same facts.
6. A statement of how the public interest is
served by the agreement.
-------
Appendix H
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of:
CWM Chemical Services, Inc.,
Chemical Waste Management, Inc., and
Waste Management, Inc.
Docket No. TSCA-PCB-91-0213
TSCA Appeal No. 93-1
ORDER ACCEPTING CERTIFICATION OF RULING
FOR INTERLOCUTORY APPEAL AND SCHEDULING
ORAL ARGUMENT
Pursuant to 40 C.F.R. §22.29, Administrative Law Judge Jon
G. Lotis ("Presiding Officer") certified for interlocutory appeal
the rulings and orders issued by him from the bench on March 18,
1993. On that date, the Presiding Officer granted Respondents'
motion for an accelerated decision and motion to dismiss. V The
Presiding Officer concluded that for the period of activity in
question, where Respondents' authorization to dispose of PCB
contaminated sludges was restricted to sludges containing PCBs in
concentrations of 500 ppm or less, Respondents had no legal
A/ The Presiding Officer's orders applied only to those claims
in the complaint based on conduct allegedly occurring between
June 26, 1986 and October 20, 1987. All other claims in the
complaint, which was filed on March 15, 1991, are based on
activity allegedly occurring before March 15, 1986, and are
currently stayed by an order of Administrative Law Judge Thomas
B. Yost/ who was previously assigned to this case. Judge Yost
stayed those claims pending a decision as to whether the five-
year statute of limitations in 28 U.S.C. $2462 applies to TSCA
administrative enforcement actions, an issue to be resolved by
the U.S. Court of Appeals for the D.C. Circuit in 3M Company
(Minnesota Mining and Manufacturing) v. William K. Reillv. et
al.. No. 92-1126 (D.C. Cir.).
-------
2
obligation to perform "dry weight" testing to determine the
concentration of PCBs in the waste.
The Presiding Officer based his decision, in part, on the
fact that a "dry weight" measurement requirement has not appeared
in the language of the applicable regulations since 1984, al-
though the Agency proposed to reincorporate it into the regula-
tions in 1990. Upon review of the submissions of the Presiding
Officer, we v conclude that the following issue raises "an impor-
tant question of law or policy concerning which there is substan-
tial grounds for difference of opinion," see 40 C.F.R.
§22.29(b): whether compliance with Respondents' approval to
dispose of waste containing PCBs in concentrations not exceeding
500 ppm is determined by measuring PCB concentrations on a dry
weight or wet weight ("as is") basis? We also conclude that this
case presents an issue of first impression that has important
implications for the Agency. See In re Hawaiian Independent
Refinery. Inc.. RCRA (3008) Appeal No. 92-2 (Order Accepting
Certification of Ruling for Interlocutory Appeal, Sept. 18,
1992) . Accordingly, the Board accepts the Presiding Officer's
certification of the March 18, 1993 orders for interlocutory
appeal.
Ordinarily, interlocutory appeals are decided based upon
submissions made by the Presiding Officer. See 40 C.F.R.
^ Environmental Appeals Judge Edward E. Reich is recused from
this matter.
-------
3
§22.29(c). This case is no exception to this rule, as the
Presiding Officer has submitted the extensive briefs and reply
briefs filed by the parties in this matter, and therefore further
briefing is not required. Nevertheless, the Board concludes that
oral argument will provide assistance in its consideration of the
issues raised toy this appeal. I£. Therefore, oral argument is
hereby scheduled to begin at 10:00 a.m. on Wednesday, June 23,
1993 in the Hearing Room, M2409, EPA Headquarters, 401 M Street,
S.W., Washington, D.C. Each party shall have thirty minutes to
present its arguments. Respondents shall proceed first, and may
reserve up to f,ive minutes of allotted time for rebuttal. The
parties shall notify the Board in writing by June 16, 1993, of
the names of counsel who will present argument.
So ordered.
ENVIRONMENTAL APPEALS BOARD
Dated
Ronald L. McCallum
Environmental Appeals Judge
-------
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Order Accept-
ing Certification of Ruling for Interlocutory Appeal and Schedul-
ing Oral Argument in the matter of CWM Chemical Services, Inc, .
Chemical Waste Management, Inc., and Waste Management, Inc., TSCA
Appeal No. 93-1, were sent to the following persons in the manner
indicated:
Certified Mail
Return Receipt Requested: Lee A. Speilmann, Esq.
Assistant Regional Counsel
U.S. EPA, Region II
26 Federal Plaza
New York, NY 10278
Roger Zehntner, Esq.
Kirkpatrick & Lockhart
One International Place
Boston, MA 02110-2006
First Class Mail
Postage Prepaid: Karen Maples
Regional Hearing Clerk
U.S. EPA, Region II
26 Federal Plaza
Room 437
New York, NY 10278
By Hand Delivery: Bessie Hammiel
Hearing Clerk
U.S. EPA Headquarters
401 M Street, S.W.
Room 3708
Washington, D.C. 204 60
Dated: MAY 20 1993
Mildred T. Connelly
Secretary
-------
Appendix I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ENVIRONMENTAL APPEALS BOARD
No.
In the Matter of Mobil Oil Corporation
Paulsboro, New Jersey
Appeal From An Initial Decision by Senior
Administrative Lav Judge Gerald Harvood
Dated December 27, 1993, And From An
interlocutory Order Granting complainant's
Cross-Motion For Partial Accelerated
Decision by Chief Administrative Law Judge
Henry B. Frazier, III, Dated September 30, 1992
Notice of Appeal of Appellant Mobil Oil Corporation
Appellant Mobil Oil Corporation ("Mobil"), by counsel,
submits this Notice of Appeal pursuant to 40 C.F.R. § 22.30(a)/
following the issuance of an Initial Decision by Senior Adminis-
trative Law Judge Gerald Harwood dated December 27, 1993.^
I. Alternative Findings of Fact
The facts set out in Judge Harwood's Initial Decision are
in large measure in accord with the evidence in the case. As its
alternative findings of fact, Mobil sets forth below those findings
V The Initial Decision was served on the parties on
January 12, 1994. On February 1, 1994, the Board granted a
motion by complainant and respondent for an extension of time
to file notices of appeal and accompanying briefs and for
adoption of a briefing plan providing that respondent will
file as appellant and complainant as cross-appellant. This
notice and the accompanying brief comply with the schedule
and plan.
-------
that either are inconsistent with Judge Harwood's Findings or were
not resolved by him but are pertinent and necessary to a decision
in this case:
1. No federal air regula€ory requirements apply to
the pertinent incinerator stack for the Sulfur Recovery Complex
at Mobil's Paulsboro refinery. Tr. 3 27 (Land).V Mobil is not
required by permit to monitor any parameters in connection with
emissions from the incinerator stack, including S02 emissions.
Nor is Mobil required by either state or federal regulations,
including EPCRA regulations, to monitor any parameters relating
to incinerator stack emissions, including, without limitation,
S02 concentrations. Id.
2. The incinerator stack is not equipped with a
continuous emissions monitor or any other device that provides data
on the pounds of S02 emitted per hour, and it is not so required by
permit or regulation to be so equipped. Tr. 3 65-69 (Land). The
incinerator stack has, and had in March 1990, a DuPont Infrared
analyzer that provides data on concentration of S02 in emissions
from the stack. Tr. 331. Mobil has maintained this analyzer as a
voluntary matter, of its own choice. In March 1990, data from that
monitoring device was available on the Process Monitoring System
(PMS), the Process Information system (PI), and strip charts.
Init. Dec., at 8; Tr. 327-33, 335-38, 341-45, 350-52 (Land); 496-
99, 511, 576 (Murphy).
V References to the Transcript of the hearing in this
case are designated as "Tr.", followed by the name of the witness
in parentheses.
- 2 -
-------
3. Prior to the start of the catalyst regeneration
process on March 12, 1990, Mobil had installed special devices to
monitor process parameters during regeneration, including oxygen
content. Tr. 501-503 (Murphy).
4. Because emissions from the stack during catalyst
regeneration on March 12, 1990, might have had the potential to
cause an odor or nuisance complaint off-site, giving rise to a
reporting obligation under New Jersey state law, Richard Rodack,
the Environmental Supervisor on duty, notified the state Emergency
Response Commission ("SERC") of the emissions at or about 1:29 p.m.
that afternoon. Stipulation, J 11; Tr. 428-29 (Rodack); Resp. Ex.
8, p. 1. Mr. Rodack made the report because of this state law, not
because of a fear of tort liability.
5. At the time Mr. Rodack made the report to the SERC,
he did not believe, and he had no basis to believe, that the
emissions exceeded Mobil's permit for the incinerator stack.
Tr. 428, 437-51 (Rodack); Resp. Ex. 9, p. 1. Before making his
preliminary assessment, Mr. Rodack pulled up S02 concentration
data on PMS at his computer and examined those data. Id.
Promptly thereafter, the process engineer involved in the catalyst
regeneration retreived the data available regarding S02 emissions
from the stack, and, using those data, she performed a calculation
to quantify S02 emissions on a mass basis in pounds per hour.
Tr. 509, 515, 552-53, 571-72, 583-84, 587, 592 (Murphy). Her
calculation showed that by a considerable margin the permit limits
had not been exceeded. Tr. 506-07, 516-17, 552-63 (calculations),
- 3 -
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566-67 (data used in calculations) , 587 (results), 592 (results)
(Murphy); Resp. Ex. 3, p. 3 (data she had used in calculations).
During the hearing, the engineer recreated this calculation. Her
results showed emissions of 473 pounds of S02 in the ten o'clock
hour and 457 pounds of S02 in the eleven o'clock hour. Both values
were well below Mobil's permit limit of 540 pounds per hour.
6. After a further, detailed investigation by Mobil's
process engineers to verify the amount of the release, using
engineering estimates and information to fill in the gaps in the
data available, Mobil concluded on March 22, 1990 that a permit
exceedance probably had occurred, and it immediately reported the
release. Tr. 453-55 (Rodack); 530-34, 542-43, 575, 585 (Murphy);
Resp. Ex. 9, pp. 10-11, 14; Resp. Ex. 10, Atts. 7 and 9. The Local
Emergency Planning Committee ("LEPC") was notified by telephone at
1:03 p.m. on March 22, 1990. Decision, p. 14; Tr. 454-56 (Rodack);
Resp. Ex. 8; Stipulation, 5 12.
7. The complaint was filed on May 20, 1991. A ten-day
violation was alleged respecting the report to the LEPC, and the
statutory maximum possible penalty was proposed.
8. In that connection, the staff member testified that
he had visited the refinery in 1989 and had then emphasized to
Mobil personnel the importance of providing notification "quickly
and as soon as possible, and even at the expense of reporting a
release before thev knew that it had exceeded the reportable
quantity." Tr. 82 (emphasis added). The EPA staff member
recommended the maximum penalty testified that "we needed to
4 -
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really kind of smack them over the head with this one," Tr. 53,
because Mobil personnel had not followed his guidance to make a
"preliminary" report and then determine whether a permit exceedance
actually had occurred. Tr. 52-53 (Kahn) .
9. There was no "continuing harm" from the emissions
that occurred from the SRU incinerator at the Paulsboro refinery
on March 12, 1990. Tr. 88-90, 121 (Kahn). The emissions were
confined to a 2-hour period on one day. Tr. 63-64 (Kahn) .
10. Professor DeBenedetti of Princeton University
subsequently examined the events and circumstances involved with
the emissions and the pertinent emissions and operating data. Tr.
704-15; Resp. Ex. 14A pp. 2-3; Resp. Ex. 24. He concluded that
587.4 pounds of S02 had been emitted during the eleven o'clock hour
and thus that the emission permit had been exceeded by 47.4 pounds
of S02 during that hour. Id.
II. Alternative Conclusions of Law
The following conclusions of law are put forward by Mobil
as alternatives to those set out in the Initial Decision and in a
prior Interlocutory Order Granting Complainant's Cross-Motion For
Partial Accelerated Decision by Chief Administrative Law Judge
Henry B. Frazier, III, dated September 30, 1992.
1. The pertinent sulfur dioxide emission from the
incinerator stack at Mobil's Paulsboro refinery constituted a
"federally permitted release," as that term is defined in Section
101(10) of the Comprehensive Environmental Response, Compensation,
and Liability Act ("CERCLA"), 42 U.S.C. S 9601(1), and is
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incorporated by reference in Section 304(a) (2) (A) of the Emergency
Planning and Community Right-To-Know Act ("EPCRA"), 4 2 U.S.C.
S 11004(a)(2)(A). The emission was a release "subject to a
permit," and as such was excepted from release reporting
requirements under Section 304(a)(2) of EPCRA, 42 U.S.C.
S 11004(a)(2).
2. EPA has been given no authority or delegation by
Congress to interpret the federally-permitted-release exemption.
That exemption is part of the liability regime of CERCLA, see
CERCLA Section 107(j), 42 U.S.C. S 9607(j), and the courts, not
EPA, have been charged with responsibility for construing the
liability provisions of CERCLA.
3. Congress has not delegated authority to EPA to
reformulate the federally-permitted-release exemption in a direct
contravention of the statutory language.
4. As Complainant, EPA bears the ultimate burden of
proof and persuasion on the issue of violation.
5. EPCRA Section 304 requires reporting when the owner
or operator of a facility has knowledge of a non-exempt release of
a reportable quantity of a listed substance; EPCRA does not require
reporting before the owner or operator has the requisite knowledge.
6. Mobil satisfied its obligations under EPCRA Section
304 by reporting the release of sulfur dioxide as soon as it had
gained knowledge that the emissions had exceeded its permit limits.
7. EPCRA, by its own terms, imposes no monitoring
requirements on parties subject to EPCRA's reporting obligations.
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8. Class II administrative penalties are not
appropriate where a violation is by definition not continuing.
9. If a violation were to be found, the penalty for
that violation should be set based upon the statutory criteria
found in Section 16(a)(2)(B) of the Toxic Substances Control Act,
15 U.S.C. § 2615(a)(2)(B). EPA's Penalty Policy should be
considered. There are no grounds for establishing a penalty in
excess of that derived from application of the statutory criteria
and provided in the Penalty Policy.
10. If a violation were to be found, the appropriate
base penalty range would be $2,000, reflecting application of the
Penalty Policy's Extent Level 3 and Gravity Level C; taking into
account the mitigating factors, the penalty would be no greater
than $1,000.
Ill t prppQgjMft Qrfler
NOW THEREFORE, pursuant to 40 C.F.R. S 22.31, the
Initial Decision of Administrative Law Judge Gerald Harwood,
issued on December 27, 1993, and the Interlocutory Order Granting
Complainant's Cross-motion for Partial Accelerated Decision,
issued on September 30, 1992, are SET ASIDE.
Based upon the findings and conclusions entered by the
Board, no violation is found and the Complaint is therefore
dismissed.
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[Alternatively, one violation is found for which the
base penalty is $2,000, reduced to $1,000 taking into account
the mitigating factors set forth in the Findings of Fact.]
Respt
February 25, 1994
DCEA113B
Charles fT Lettow
Julie A. Waddell
Carla L. Wheeler
Cleary, Gottlieb, Steen
& Hamilton
1752 N Street, N.W.
Washington, D.C. 2003 6
(202) 728-2700
Shelley V. Lucas
Office of General Counsel
Mobil Oil Corporation
32 2 5 Gallows Road
Fairfax, Virginia 22037-0001
(703) 846-5826
Attorneys for Mobil Oil
Corporation
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Appendix
J
Guidance on Procedures for Submitting CERCLA
Section 106(b) Reimbursement Petitions and on
EPA Review of Those Petitions
Date: June 9, 1994
Environmental Appeals Board
This document is solely intended as guidance. It does not
establish a binding norm and is not finally determinative of the
issues addressed. This document is not intended to be a synopsis
of principles of law. The policies and procedures in this guidance
do not constitute a rulemaking by the Agency, and may not be relied
on to create a substantive or procedural right or benefit
enforceable at law by any person. The Agency may take action at
variance with this guidance.
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Table of Contents
Introduction 1
Contents of a Section 106(b) Petition ... 1
Background Information 1
Elements of a Petition 3
Threshold Statutory and Regulatory Requirements .... 4
Statutory Standards for Reimbursement 6
Reasonable Costs Plus Interest 6
Agency Procedures for Processing Section 106(b) Petitions . . 7
Regional Involvement in the Petition Review Process 11
Further Information 12
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I. Introduction
This document sets forth guidance on petitions for
reimbursement submitted under section 106(b) of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA), 42 U.S.C. § 9606(b), as amended by the
Superfund Amendments and Reauthorization Act of 1986 (SARA).
This guidance describes the contents of reimbursement petitions
and the procedures that EPA intends to use in responding to
reimbursement petitions. Appendix A to the guidance sets forth
the full text of section 106(b)(2). Appendix B identifies
certain issues involving access to information, and the
confidential treatment of information, that may arise in
connection with the submission or review of a section 106(b)
reimbursement petition.
CERCLA section 106(b)(2) allows a person who has complied
with an administrative order issued under section 106(a) of
CERCLA to submit a reimbursement petition to EPA for the
reasonable costs (plus interest) of a response action. A person
is entitled to reimbursement if the person can establish that
s/he is not liable for response costs under section 107(a) of
CERCLA, or if the person can demonstrate, that the Agency's
selection of the response action was arbitrary and capricious or
was otherwise not in accordance with law.
CERCLA section 106(b)(2) contains three key provisions.
Sub-section 106(b)(2)(A) requires a person to petition EPA
within 60 days after completion of the required action.
Sub-sections 106(b)(2)(C) and (D) describe the substantive
grounds for a reimbursement petition. Sub-section 106(b)(2)(B)
allows a petitioner to file an action in a United States District
Court if EPA denies a reimbursement petition in whole or in part.
This guidance supersedes OSWER Directive Number 9833.5
("Guidance on Procedures for Submitting CERCLA Section 106(b)
Reimbursement Petitions and on EPA Review of Those Petitions")
dated June 29, 1992, and is effective immediately. The
procedures described in this guidance will be applied to all
petitions submitted on or after the date of its issuance and may
also, to the extent practicable, be applied to petitions that
were submitted before the date of its issuance and that remain
unresolved.
II- Contents of a Section 106(b) Petition
A. Background Information
A petition shall include the following background
information:
o the petitioner's full name, title, and
address;
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o the name, title, address, and telephone
number of any agent or attorney authorized to
represent the petitioner;
o the name and address of the facility at which
the response action was implemented; and
o the U.S. EPA docket number for-the section
106(a) order, and a copy of the order.
The petition shall be signed by an attorney representing the
petitioner or, if the petitioner is not represented by an
attorney, by an agent or officer of the petitioner qualified to
act as a signatory. A qualified agent or officer shall be one
meeting the definition provided in 40 C.F.R. § 270.11(a).1 The
Environmental Appeals Board may at any time require any factual
assertion contained in a petition to be substantiated by an
affidavit based on the affiant's personal knowledge of the matter
asserted.
Petitions for reimbursement should be sent by certified
mail, return receipt requested, to the following address2:
Clerk
Environmental Appeals Board (1103B)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 204 60
Alternatively, petitions and supporting materials may be hand-
delivered to the Clerk of the Environmental Appeals Board between
the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday
(excluding federal holidays), at the following address:
Suite 500
607 Fourteenth Street, NW
Washington, DC 20005
1 A petition already on file with EPA as of the effective
date of this guidance need not be amended to satisfy the signature
requirement described in the text, unless the Environmental Appeals
Board specifically so directs.
2 The President's authority to implement CERCLA section
106(b) was delegated to the EPA Administrator by Executive Order
12580 (January 23, 1987). The authority to receive, evaluate, and
make determinations regarding petitions for reimbursement submitted
pursuant to section 106(b) has been delegated to the Environmental
Appeals Board. See Delegation of Authority 14-27 ("Petitions for
Reimbursement").
2
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For the purpose of determining a petitioner's compliance with the
statutory 60-day deadline, EPA will look to the postmark date if
the petition is sent to the Environmental Appeals Board by
certified mail, or the date of receipt by the Environmental
Appeals Board if the petition is sent by any other means. A
petitioner should also send a copy of the petition, including any
attachments, to the EPA regional program office that issued the
underlying administrative order.
B. Elements of a Petition
A petition must articulate all legal arguments and all
factual contentions (including contentions, if any, regarding
technical or scientific matters) on which the petitioner relies
in support of its claim for reimbursement.3 All documents on
which the petitioner relies to demonstrate compliance with the
"threshold" elements of its claim — discussed in further detail
in Section II.C of this guidance — must be included as
attachments to the petition. Other documents on which the
petitioner relies in support of its reimbursement claim may, but
need not, be submitted as attachments to the petition? all such
documents must, however, be identified in the petition with
sufficient particularity to enable the Environmental Appeals
Board to understand the nature of each document and its
substance, and to formulate a request for copies of any cited
documents that it deems relevant to its review of the petition.
Except as may be permitted by the Board for good cause
shown, no issues may be raised by a petitioner during the
petition review process that were not identified in the petition,
and no evidence or information may be submitted during the
petition review process that was not identified in the petition,
unless the petitioner demonstrates: (1) for new issues, that such
issues were not reasonably ascertainable as of the date of the
petition; or (2) for new evidence or information, that the
petitioner could not reasonably have known of its existence, or
could not reasonably have anticipated its relevance or
materiality, as of the date of the petition.
EPA strongly discourages the submission of frivolous or
unsupported petitions. The Agency may seek from the petitioner
any Agency costs incurred in processing such a petition.
3 A petitioner may seek leave of the Environmental Appeals
Board to amend a petition in order to present information, or to
identify evidence, that was not available at the time of the
initial filing. A petition must be amended as appropriate to
correct or clarify any statements therein that are no longer true,
or that are determined not to have been true when made.
3
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C. Threshold Statutory and Regulatory Requirements
Section 106(b)(2) establishes certain threshold requirements
for reimbursement. Each petition for reimbursement should
therefore include information demonstrating satisfaction of the
following requirements:
1) On or after October 17, 1986, the petitioner received
and complied with the terms of an administrative order
issued by EPA under CERCLA section 106(a)4;
2) The petitioner has completed the required action;
3) The petitioner submitted a petition for reimbursement
to EPA within 60 days after completing the required
response action; and
4) The petitioner incurred reasonable costs.
Each petition should include all information necessary for
EPA to determine compliance with the foregoing threshold
requirements. Such information includesv but is not limited to:
a copy of the administrative order; a statement identifying the
amount of the petitioner's claim and the grounds therefor;
documentation showing that the petitioner has fully completed the
action required by the administrative order (see below); a copy
of a letter from the petitioner to the regional office requesting
confirmation that the required action has been completed; copies
of any correspondence received by the petitioner from EPA's
regional office in response to the request for confirmation that
the required action has been completed; and evidence showing the
costs incurred. Any petition that does not demonstrate
compliance with the threshold statutory requirements for
reimbursement will be denied. The threshold requirements are
discussed further in the following numbered paragraphs.
1. Reimbursement under section 106(b)(2) is not available
to parties who received their cleanup orders prior to October 17,
1986.5 EPA will deny any petition that is based on such an
order.
See 40 C.F.R. § 300.700(e). This section recognizes a
person's right to submit a petition after complying with an order
issued after October 16, 1986, unless the person has waived this
right.
5 See Waaner Seed Co. v. Bush. 946 F.2d 918 (D.C. Cir.
1991), cert, denied. 112 S. Ct. 1984 (1992)? Bethlehem Steel Corp.
v. Bush. 918 F.2d 1323 (7th Cir. 1990).
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2. Section 106(b)(2) requires a person to complete the
required action before submitting a petition. If the petitioner
has not completed the required action, then EPA may return the
petition. Once the required action is complete, the petitioner
may refile the petition within 60 days after the date of
completion.
3. The third threshold element of section 106(b)(2)
requires a person to file a petition within 60 days after
completing the required action. To meet this requirement,
petitions should be postmarked (or, if not sent by certified
mail, received by the Clerk of the Environmental Appeals Board)
not later than the 60th day after the date on which the required
action was completed. The petition should be sent to the
Environmental Appeals Board by certified mail, return receipt
requested, or hand-delivered to the Board. If the 60-day time
period for filing the petition with EPA expires on a Saturday,
Sunday, or federal legal holiday, then the time period is
extended to include the next business day.
4. Under the fourth threshold requirement, the petitioner
must demonstrate that s/he has incurred reasonable costs. The
petitioner should therefore submit, as an attachment to the
petition, an itemized list of the costs incurred in performing
the response action, together with copies of documents (including
itemized invoices and proof of their payment in full) that
substantiate each cost item on the list. The petitioner should
also furnish, with the petition, a written statement explaining
why s/he believes the costs being claimed are "reasonable.1,6
Factors relevant to the reasonableness of costs include, but are
not limited to: the number of bids that the petitioner received
for a project? the basis for choosing a particular contractor;
the bidding procedures utilized; any modifications to the
original contract; and any delay in the petitioner's initiation,
facilitation, or completion, of the response action.7
6 The petitioner need not furnish copies of documents
claimed to support the reasonableness of costs incurred, until and
unless the Environmental Appeals Board requests such documentation.
Such a request will only be made after the Board determines that
reimbursement in any amount is to be awarded.
7 If and when requested, appropriate supporting
documentation concerning the reasonableness of costs incurred might
include copies of bids received, cost estimates, documents
reflecting commercial rates for the relevant services, authorized
work contracts, contractor rates, market prices, progress reports,
receipts, and the like.
5
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D. Statutory Standards for Reimbursement
If the petition satisfies the four threshold requirements
discussed above, then EPA will evaluate the merits of the
petition. To evaluate the petition's merits, EPA will examine
whether the petition demonstrates either, or both, of the
following:
o that the petitioner is not liable for response costs
under CERCLA section 107(a) (see sub-section
106(b)(2)(C)); or
o that, based on the administrative record, the selection
of the response action required by the order was
arbitrary and capricious or otherwise not in accordance
with law (see sub-section 106(b)(2)(D)).
The burden of proof rests with the petitioner. Under sub-
section 106(b)(2)(C), the petitioner must prove by a
preponderance of the evidence that s/he is not liable. In
contrast, a claim based on sub-section 106(b)(2)(D) requires the
petitioner to demonstrate, on the administrative record, that
EPA's selection of the response action was arbitrary and
capricious or otherwise not in accordance with law. Sub-section
106(b)(2)(D) limits reimbursement to the costs incurred pursuant
to the portions of the order found to be arbitrary and capricious
or otherwise not in accordance with law. EPA will review a claim
under sub-section 106(b)(2)(D) based solely on the information
contained within the administrative record for the selection of
the response action.
E. Reasonable Costs Plus Interest
After determining that the petitioner meets the substantive
standards for reimbursement, EPA will evaluate the reasonableness
of the response costs incurred for the required action. The
reimbursement petition should include an itemized list of costs
incurred and should describe the basis for the petitioner's claim
that those costs are reasonable. The petition should also
identify any monies the petitioner has received from other
parties via any other means (e.g., settlements, contribution,
insurance, private party actions, and government contracts) for
performing the required action. Such monies do not represent
costs incurred by the petitioner, and are therefore not subject
to reimbursement.
In evaluating the petitioner's costs, EPA will consider the
circumstances of the response action, evidence of the customary
practices existing at the time the monies were expended by the
petitioner (e.g., cost estimates furnished by qualified firms,
results of competitive procurement for identical or similar
activities, and documentation of market prices for similar
6
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activities), and any other relevant factors. EPA may grant all,
part, or none of the costs sought. EPA will not reimburse any
costs that are not part of the reasonable costs of the response
action required by the order; such non-allowable costs include,
but are not limited to, the additional cost for work performed
beyond the scope of the administrative order and legal fees
related to the reimbursement petition process.
Finally, CERCLA sub-section 106(b)(2)(A) indicates that
interest on the amount of money expended in implementing a
required action accrues from the date of expenditure. The
interest rate used in this calculation will be the same rate as
specified for interest on investments of the Hazardous Substance
Superfund established under subchapter A of chapter 98 of Title
26 of the United States Code.
III. Agency Procedures for Processing Section
106 fb^ Petitions
Generally, EPA will evaluate a petition using the process
outlined below. However, EPA may, in its discretion, stay the
process before a final decision is issued: For example, EPA may
stay the petition review process if a related settlement or
judicial action is proceeding (e.g., a CERCLA section 107 action)
or for other good cause. A petitioner may elect to withdraw a
petition, or to withdraw from a multi-party petition (e.g., if
the petitioner enters into a settlement with EPA and thus waives
his or her rights under section 106(b)). Once a petitioner
withdraws a petition, the petitioner will be permitted to refile
the petition only if the 60-day statutory deadline for
petitioning the Agency has not yet expired.
After the response action required by a section 106(a) order
is completed, the petitioner has 60 days to file a reimbursement
petition with EPA. To assist the Environmental Appeals Board in
reaching the necessary determination concerning completion of the
response action, petitioners should comply with the following
procedures: Not later than the date of submission pf a petition,
the petitioner should send a letter (by certified mail, return
receipt requested) to the appropriate EPA regional program
office, with a copy to the Environmental Appeals Board,
requesting the regional office to confirm that the required
action has been completed. The letter should be substantiated
with supporting documentation (e.g., copies of invoices, worfc
orders, disposal records, receipts or manifests, and other
relevant documents) for the regional office to examine in
evaluating whether the required response action has or has not
been completed. Parties should be aware that there are
significant sanctions for submitting false information.
Upon receipt of the petitioner's letter requesting
confirmation that the required action has been completed, the
7
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regional office should respond in writing to the petitioner
within 60 days, either confirming or denying that the petitioner
has completed the required action. The regional office should
send its response to the petitioner by certified mail, return
receipt requested, and should send a copy to the Environmental
Appeals Board. If the regional office finds that the action has
not been completed, the Region should state the basis for that
finding and the actions needed to be taken in order to complete
the required action. If the Region's response to the petitioner
is not postmarked or franked by the 60th day after the Region's
receipt of the petitioner's request for confirmation, and if no
extension of time has been granted by the Environmental Appeals
Board {see below), then the Board may deem the required action
complete for purposes of sfection 106(b)(2) only. In some
circumstances, a regional office may determine that the
petitioner completed the required action only after the date of
the petitioner's request for confirmation. In that situation, a
petitioner may file the petition within 60 days after the date of
actual completion, as reflected in the Region's letter confirming
completion. A petitioner should not await the Region's letter
confirming completion before submitting a petition for
reimbursement. The petitioner's statutory obligation to petition
EPA within 60 days after completing the required action is not
affected by any delay or default on the part of the regional
office in responding to the petitioner's request for confirmation
of completion.
For good cause, a regional office may seek a limited
extension of time to evaluate whether the required action has
been completed, by submitting a written request for such an
extension to the Environmental Appeals Board. The Board
anticipates that regional offices will request such extensions
only in unusual circumstances, such as when a dispute arises
between the regional office and the petitioner as to whether the
work was completed.
Upon receipt of a petition, the Environmental Appeals Board
will send a letter to the appropriate regional office (with a
copy to the petitioner) soliciting a response to the petition.
Unless the Region concludes that the petitioner has not yet
completed the required action, the Region must provide the
Environmental Appeals Board with a written response to the
reimbursement petition. The Region's response must be submitted
to the Board (with a copy to the petitioner) within sixty days
after the date of the Board's letter, unless the Board grants an
extension of this deadline in response to a timely request by the
Region. The Board will not evaluate the merits of a petition
until the work required by the administrative order has been
completed (as indicated, typically, by the Region's letter
confirming completion) and the Board has. received the Region's
response to the petition. Following receipt of the Region's
response to a petition, the Board may at any time require or
8
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invite the petitioner and/or the Region to provide such
supplemental briefing as the Board may deem necessary for an
informed resolution of the issues presented.
The Board will begin its substantive review by evaluating
whether the petitioner has met the threshold statutory
requirements identified in Section II of this guidance. If the
petitioner cannot show that the threshold statutory requirements
are met, the Board will deny the petition. If the threshold
requirements are met, the Board will proceed to evaluate the
merits of the petition. Upon request of a party or on its own
initiative, the Board may render a summary disposition granting
or denying a claim for reimbursement, if'no genuine issue of
material fact exists and the petitioner is, as a matter of law,
either entitled or not entitled to reimbursement. If the Board
determines that summary disposition is warranted, the. Board
expects that it will issue a preliminary decision without further
investigation into the facts of the case, in particular, the
Board will not direct that any evidentiary proceedings be
conducted by an Agency hearing officer in such cases, because
further factual case development would be of no benefit.
When a petitioner claims that he or she is not liable under
section 107(a) of CERCLA, the Board expects that in most cases it
will evaluate such claims based solely on the petition/ the
response, and other documents received from the petitioner and
the regional office. There may, however, be cases in which
further evidentiary proceedings or oral argument would materially
assist the Board in its evaluation of a liability issue. In such
cases, the Board may in its discretion designate a hearing
officer (who shall be an Agency employee without prior
involvement in the matter under review) to conduct an evidentiary
hearing concerning questions of fact; or may direct the parties
to appear before the Board to present oral argument concerning
questions of law. The Board may take such action either in
response to a request by a party or on its own initiative. If
the Board determines that an evidentiary hearing or oral argument
shall take place, both the petitioner and the Region will be
notified in writing of the issues to be addressed and the hearing
date and location. Both the Region and the petitioner will be
expected to participate in such proceedings; a party's failure to
participate may cause adverse inferences or conclusions to be
drawn against that party with respect to any matter addressed at
the proceedings.
CERCLA does not require that EPA provide hearings on section
106(b) reimbursement petitions. Evidentiary hearings are
particularly appropriate where there are factual issues whose
resolution may depend on the credibility of witnesses. In such
cases, it may be appropriate to provide an opportunity for
examination and cross-examination of such witnesses. In contrast,
where the factual disputes primarily concern technical matters
9
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whose resolution does not depend on witness credibility, there
will usually be no need to provide for an evidentiary hearing and
the Board will decide these issues on the basis of the written
submissions. If, however, the liability issues raised in a
particular petition appear unusually technical or complex, or if
the Board believes that live testimony or oral argument would be
helpful for any other reason, the Board may require the parties
to present such testimony or argument.
In sum, petitioners should keep in mind the following points
regarding the availability of evidentiary hearings on section
106(b) petitions. It is within EPA's discretion whether to hold
a hearing. EPA expects that evidentiary hearings will be held
only with respect to liability issues. EPA does not expect
evidentiary hearings to be available on response-selection issues
or on issues relating to the reasonableness of the costs incurred
by the petitioner. EPA expects to hold evidentiary hearings only
when liability claims involve disputed factual issues. The
decision whether to hold a hearing may turn largely on the
Board's judgment as to whether witness credibility is an
important factor in the resolution of a particular factual
dispute. If the Environmental Appeals Board designates a hearing
officer to conduct an evidentiary hearing into specified factual
questions, the hearing officer will be asked to issue a
recommended decision to the Board with respect to those
questions.
Once the evaluation process is completed, the Environmental
Appeals Board will issue a preliminary decision. If an
evidentiary hearing was conducted during the evaluation process,
the Board will include a copy of the hearing officer's
recommended decision with the preliminary decision document. The
preliminary decision will also be accompanied by an index
identifying the documents referred to in the preliminary
decision. Those documents will be available either at EPA
Headquarters in Washington, D.C., or at the appropriate regional
office, for the petitioner's inspection as it prepares comments
on the Board's preliminary decision.
Within thirty days after the date of service of a
preliminary decision, the petitioner and the regional office may
submit comments in response to the Board's preliminary decision.
The petition, the Region's response to the petition, the
evidentiary hearing and/or oral argument (if any), and the
opportunity to submit comments in response to the Board's
preliminary decision represent the established means for the
petitioner and the regional office to present their views on all
questions relating to the petitioner's claim for reimbursement
under section 106(b). The Board may decline to consider
information submitted by either party outside of these processes.
10
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Before issuing a final decision, the Board will review and
consider comments relating to any issue previously identified by
either party; but the Board will, except in extraordinary
circumstances, decline to consider any new claims or new issues
sought to be raised during the comment period. Absent
extraordinary circumstances, comments should therefore relate
only to the issues raised in the petition or in the Region's
response to the petition, or to any other matter discussed in the
preliminary decision.
EPA's final decision may grant the petition in whole or in
part or may deny the petition. The Environmental Appeals Board
will issue EPA's final decision, which will be sent to the
petitioner (or petitioner's counsel) by certified mail and to the
regional office by regular mail. The public record supporting
EPA's final decision will be made available at EPA Headquarters
or the regional office as appropriate (see discussion in Appendix
B> *
Judicial review of the Agency's final decision is governed
by CERCLA section 106(b)(2)(B), 42 U.S.C. § 9606(b)(2)(B).
IV. Regional Involvement in the Petition Review Process
A regional office has the following six responsibilities in
connection with the petition review process:
A. Confirmation Process - Within sixty days after its
receipt of a written request from the petitioner, the
regional office must confirm or deny, in writing, that
the required action has been completed (see procedures
above).
B. Response to Petition - The regional office must submit
a written response to the petition within 60 days after
the date of the Environmental Appeals Board's letter
formally notifying the regional office of the filing of
the petition (assuming that the petitioner has
completed the required action).
C. Documents - The regional offices should anticipate
that persons who intend to file section 106(b)
petitions will ask to review the administrative record
for selection of the response action well in advance of
the deadline for filing their petitions. The Regions
should be prepared to handle such requests.8
8 S££ 40 C.F.R. S 300.820 for the timing requirements
surrounding preparation of the administrative record file.
11
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After a petition is filed, the regional office must
make available to the Environmental Appeals Board the
administrative record for the selection of the response
action9 and (to the extent requested by the Board)
documents supporting the Region's position that the
petitioner is liable. The Region should also include
an index/indices of these documents. In the event that
these documents are too voluminous for shipment,
arrangements will be made for the staff and/or members
of the Board to examine the appropriate documents at
the regional office.
After the Board issues a preliminary decision, the
regional office may be called upon to provide the
petitioner with facilities in which to review the
documents identified in the preliminary decision,
during the preparation of the petitioner's comments.
D. Additional Information - In evaluating a petition, the
Environmental Appeals Board may find it necessary to
request additional documents or information from a
regional office. The Region should be prepared to send
this information and a related index to the Board, with
copies to the petitioner.
E. Evidentiary Hearing or Oral Argument - If the Board
determines that an evidentiary hearing or oral argument
will be held, the regional office will be notified in
writing of the proposed date and location. The
regional office shall participate in the hearing as
directed by the Board.
F. Comments on the Preliminary Decision - The regional
office and the petitioner may submit comments to the
Environmental Appeals Board within thirty days after
the date of service of the Board's preliminary
decision. Failure to comment within the time provided
will be construed as an indication that the Region has
no objection to the contents of the preliminary
decision.
V. Further Information
For further information concerning the matters addressed in
this guidance, contact Stuart Cane, Environmental Appeals Board
(1103B), U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, DC 20460, (202) 501-7060.
This submission will not be needed if the threshold
filing requirements are not met or if petitioner does not assert a
claim under sub-section 106(b)(2)(D).
12
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APPENDIX A
CERCLA Section 106(b)(2) provides:
(A) Any person who receives and complies with the terms of
any order issued under subsection (a) of this section may, within
60 days after completion of the required action, petition the
President for reimbursement from the Fund for the reasonable
costs of such action, plus interest. Any interest payable under
this paragraph shall accrue on the amounts expended from the date
of expenditure at the same rate as specified for interest on
investments of the Hazardous Substance Superfund established
under subchapter A of chapter 98 of Title 26.
(B) If the President refuses to grant all or part of a
petition made under this paragraph, the petitioner may within 30
days of receipt of such refusal file an action against the
President in the appropriate United States district court seeking
reimbursement from the Fund.
(C) Except as provided in subparagraph (D), to obtain
reimbursement, the petitioner shall establish by a preponderance
of the evidence that it is not liable for response costs under
section 9607(a) of this title and that costs for which it seeks
reimbursement are reasonable in light of the action required by
the relevant order.
(D) A petitioner who is liable for response costs under
section 9607(a) of this title may also recover its reasonable
costs of response to the extent that it can demonstrate, on the
administrative record, that the President's decision in selecting
the response action ordered was arbitrary and capricious or was
otherwise not in accordance with law. Reimbursement awarded
under this subparagraph shall include all reasonable response
costs incurred by the petitioner pursuant to the portions of the
order found to be arbitrary and capricious or otherwise not in
accordance with law.
(E) Reimbursement awarded by a court under subparagraph (C)
or (D) may include appropriate costs, fees, and other expenses in
accordance with subsections (a) and (d) of section 2412 of Title
28.
13
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APPENDIX B
Access to Information and Confidentiality
Generally, the Petitioner will have access to all documents
in the administrative record supporting the selection of the
response action, as well as documents in the record compiled by
EPA concerning its decision on liability issues and any other
documents concerning EPA's decision on the petition. The
administrative record is kept at the appropriate regional office
or EPA Headquarters and is available to all interested parties.
However, certain documents may not be maintained in the publicly
available portion of the administrative record because they may
be subject to one of the nine statutory exemptions under the
Freedom of Information Act (FOIA), 5 U.S.C. §§ 552 seq. The
FOIA provides for disclosure of Agency records to any. requestor
except where the record falls under an exemption. A petitioner
is subject to the provisions of FOIA when seeking information
which may fall within the nine statutory exemptions. Whether or
not a petitioner cites FOIA when requesting information not
currently public and available, EPA will treat the request as a
FOIA request.
The Environmental Appeals Board encourages the Regions to
make every effort to release relevant investigatory records
compiled for law enforcement purposes, including liability
evidence, if no important purpose is served by withholding the
record. A more complete disclosure may provide the petitioner
with the opportunity to learn why the Agency found it liable for
the response action. Under certain circumstances, a Region may
choose not to disclose information because it may, for example,
"interfere with enforcement proceedings" or affect judicial
proceedings. An example of a circumstance preventing the
disclosure may be a RD/RA negotiation or a cost recovery action
which coincides with the petition evaluation process.
In some cases a Region may determine that a document is
subject to another FOIA exemption, such as exemption five, the
exemption pertaining to interagency or intraagency memoranda or
letters which would not be available by law to a party other than
an agency in litigation with the agency. This exemption includes
documents subject to the internal deliberative process privilege
and the attorney work-product privilege. Again, the Board
strongly encourages the Regions to make every effort to release
documents which fall within this exemption if no important
purpose is served by withholding the records.
Exemption four pertains to trade secrets, and confidential
commercial or financial information (confidential business
information [CBI]). This exemption may apply to information EPA
obtained either from the petitioner or from other entities. EPA
has developed regulations on CBI (40 C.F.R. Part 2, Subpart B).
14
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The petitioner may submit information to the Agency and
assert a business confidentiality claim covering part or all of
the submitted information. Information covered by such a claim
will be released only to the extent, and by means of the
procedures, set forth in 4 0 C.F.R. Part 2, Subpart B. If no such
claim accompanies the information when it is received by EPA, EPA
may release information without further notice. However, a
request for documents claimed exempt will trigger a review and
request to the submitter of the documents for substantiation of
its claim from an EPA legal office. The. Agency legal office may
determine that the information claimed exempt is not entitled to
confidential treatment. If such a determination is made, EPA
may, after appropriate notice, release the information unless an
action is instituted in a federal court to enjoin release of the
information.
Generally, CBI can only be disclosed in certain narrowly
defined circumstances. 40 C.F.R. § 2.209 outlines the parties
that may receive CBI and the procedures that EPA follows when it
disseminates CBI. EPA may disclose CBI in limited circumstances
to Congress, other federal agencies, by order of a federal court,
within EPA, with the consent of the business that submitted the
information to EPA and to certain authorized representatives
(such as contractors). EPA may also release CBI because of the
relevance of the CBI to a proceeding. This release of CBI can
only be made in accordance with EPA's CBI regulations, 40 C.F.R.
Part 2.
Despite these limitations on disclosure, EPA anticipates
that most of the information relevant to a petition will be
generally publicly available. EPA will make every effort to
evaluate, carefully, each request for disclosure of information
and weigh any important reasons for withholding requested
information.
15
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Appendix K
CHRONOLOGICAL LIST OF FORMAL EAB DECISIONS
CASE NAME
APPEAL AND
DOCKET NO.
DATE
DECIDED
U.S. ALUMINUM, INC.
EPCRA 92-1
II EPCRA-89—0124
03/11/92
CWM CHEMICAL SERVICES, INC.
CHEMICAL WASTE MANAGEMENT, INC.
AND WASTE MANAGEMENT, INC.
TSCA 91-6
II TSCA-PCB—91—
0213
03/23/92
CIBA-GEIGY CORPORATION AND
HERCULES, INC.
RCRA 91-28
NYD 002 069 748
04/07/92
ATLAS ENVIRONMENTAL SERVICES,
INC. AND ATLAS POWDER COMPANY
RCRA 91-18
MOD 985 798 164
04/22/92
B&B WRECKING AND EXCAVATING,
INC.
TSCA 92-2
TSCA V-C-4 0-90
04/23/92
CHEVRON CHEMICAL CO.
(RICHMOND, CA FACILITY)
RCRA 90-15
CAD 043 237 486
04/27/92
MULTITRADE LIMITED PARTNERSHIP
PSD 92-2
N/A
04/29/92
BETHLEHEM STEEL CORPORATION
TSCA 92-1
TSCA III-322
05/12/92
CARGILL, INC.
RCRA 92-14
CAD 076 180 843
05/18/92
STAR-KIST CARIBE, INC.
NPDES 88-5
PR 0022012
05/26/92
MINERS ADVOCACY COUNCIL
(ALASKA PLACER MINERS)
NPDES 91-23
1091-08-19-402
05/29/92
CHEMICAL WASTE MANAGEMENT, INC.
KETTLEMAN HILLS FACILITY
RCRA 91-17
CAT 000 646 117
06/15/92
RENKIEWICZ SWD-18
UIC 91-4
MI-137-2D-0229
06/24/92
THERMEX ENERGY CORPORATION &
RICHARD W. FORSYTHE
RCRA (3008) 91-3
VIII-89-03
06/30/92
U.S. DEPARTMENT OF ENERGY
PINELLAS PLANT
RCRA 91-3
FL6 890 090 008
07/08/92
SANDOZ PHARMACEUTICALS
CORPORATION
RCRA 91-14
NJD 002 147 023
07/09/92
MEDZAM, LTD
FIFRA 91-1
IF&R II-470-C
07/20/92
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CASE NAME
APPEAL AND
DOCKET NO.
DATE
DECIDED
HAWAIIAN COMMERCIAL & SUGAR
COMPANY
PSD 92-1
HI 89-01
07/20/92
WASTE TECHNOLOGIES INDUSTRIES
EAST LIVERPOOL, OH
RCRA 92-7 ET AL.
OHD 980 613 541
07/24/92
THERMAL REDUCTION COMPANY, INC.
EPCRA 91-2
II EPCRA 91-0102
07/27/92
MIAMI-DADE WATER AND SEWER
AUTHORITY DEPARTMENT
NPDES 91-14
FL 0032182
07/27/92
CITY OF JACKSONVILLE, DISTRICT
II WASTEWATER TREATMENT PLANT
NPDES 91-19
FL 0026450
08/04/92
TERRA ENERGY LTD
UIC 92-3
MI—13 5-2D—0003
08/05/92
POLLUTION CONTROL INDUSTRIES OF
INDIANA, INC.
RCRA 92-3
IND 000 646 943
08/05/92
PORT OF OAKLAND AND GREAT LAKES
DREDGE AND DOCK COMPANY
MPRSA 91-1
MPRSA IX-88-01
08/05/92
BRUSH WELLMAN, INC.
ELMORE, OHIO FACILITY
RCRA 92-17
OHD 004 212 999
08/25/92
SEQUOYAH FUELS CORPORATION
NPDES 91-12
OK 0000191
08/31/92
ADCOM WIRE, D/B/A ADCOM WIRE
COMPANY
RCRA 92-2
FLD 053 105 821
09/03/92
MINERS ADVOCACY COUNCIL
NPDES 91-23
1091-08-19-402
09/03/92
ASHLAND OIL, INC.
FLOREFFE, PA
SPCC 91-1
PA 88-0001
09/15/92
AVERY LAKE PROPERTY OWNERS
ASSOCIATION
UIC 92-1
MI 119-2D—0030
09/15/92
HADSON POWER 14 — BUENA VISTA
PSD 92-3, 92-4 &
92-5
21130
10/05/92
PUERTO RICO SUN OIL COMPANY,
INC.
NPDES 92-20
PR 0000400
10/23/92
HARDIN COUNTY, OH
RCRA (3008) 92-1
V-89-R-29
11/06/92
-2-
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CASE NAME
APPEAL AND
DOCKET NO.
DATE
DECIDED
HAWAIIAN INDEPENDENT REFINERY,
INC.
RCRA (3008) 92-2
09-91-0007
11/06/92
GENERAL ELECTRIC COMPANY
RCRA 91-7
MAD 002 084 093
11/06/92
GENERAL MOTORS CORPORATION,
DELCO MORAINE DIVISION (NORTH
PLANT)
GENERAL MOTORS CORPORAITON,
DELCO MORAINE DIVISION (SOUTH
PLANT)
RCRA CONSOLIDATED
90-24 & 90-25
OHD 045 557 766
OHD 060 928 561
11/06/92
CYPRESS AVIATION, INC.
RCRA (3008) 91-6
89-04-R
11/17/92
OSAGE (PAWHUSKA, OKLAHOMA)
UIC 92-2
06S1262P5569
11/24/92
OGDEN MARTIN SYSTEMS OF
ONONDAGA, INC. AND ONONDAGA
COUNTY RESOURCE RECOVERY
FACILITY
PSD 92-7
N/A
12/01/92
CITY OF DENISON
NPDES 91-6
TX 0047201
12/08/92
GENICOM CORPORATION
EPCRA 92-2
CERCLA III-006 &
EPCRA III-057
12/15/92
ALMA PLANTATION, LTD
NPDES 92-27
LA 0003034
12/16/92
GSX SERVICES OF SOUTH CAROLINA,
INC.
RCRA 89-22
SCD 070 375 985
12/29/92
GENERAL ELECTRIC COMPANY
HOOKSETT, NEW HAMPSHIRE
NPDES 91-13
NH 0001341
01/05/93
BOISE CASCADE CORPORATION
NPDES 91-20
LA 0007927
01/15/93
CARIBBEAN PETROLEUM CORPORATION
NPDES 91-25
PR 0000370
01/28/93
HOUSE ANALYSIS & ASSOCIATES &
FRED POWELL
CAA 93-1
CAA XII-006
02/02/93
WEGO CHEMICAL & MINERAL
CORPORATION
TSCA 92-4
II TSCA-8(A)-88-
0228
02/24/93
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CASE NAME
APPEAL AND
DOCKET NO.
DATE
DECIDED
THERMALKEM, INC.
ROCK HILL, SOUTH CAROLINA
RCRA 92-4
N/A
03/10/93
BEAZER EAST, INC. AND KOPPERS
INDUSTRIES, INC.
RCRA 91-25
KYD 006 383 392
03/18/93
ODESSA UNION WAREHOUSE CO-OP,
INC.
FIFRA 93-1
IF&R X-1092-02-
21-012
03/19/93
CITY & COUNTY OF SAN FRANCISCO
(OCEANSIDE WASTEWATER TREATMENT
FACILITY & SOUTHWEST OCEAN
OUTFALL)
NPDES 91-18
CA 0037681
03/24/93
NELLO SANTACROCE & DOMINIC
FANELLI D/B/A GILROY ASSOCIATES
TSCA 92-6
TSCA 09-89-0014
03/25/93
GENERAL ELECTRIC COMPANY
RCRA 91-7
MAD 002 084 093
04/13/93
STAR ENTERPRISE, DELAWARE CITY
REFINERY
RCRA 92-9
DED 002 329 738
04/20/93
LCP CHEMICALS - NEW YORK
(DIVISION OF THE HANLIN GROUP,
INC. )
RCRA 92-25
NYD 095 586 376
05/05/93
GOODYEAR TIRE & RUBBER COMPANY
NPDES 92-5
TX 0005061
05/21/93
SUCKLA FARMS, INC. AND CITY OF
FORT LUPTON, COLORADO
UIC 92-7 & 92-8
CO 1516-02115
06/07/93
BROWARD COUNTY, FLORIDA
NPDES 92-11
FL 0032771
06/07/93
WASTE TECHNOLOGIES INDUSTRIES
HAZARDOUS WASTE INCINERATOR
COMMERCIAL OPERATION PERMIT
RCRA 93-7 & 93-9
N/A
06/21/93
BRINE DISPOSAL WELL,
MONTMORENCY COUNTY, MICHIGAN
UIC 92-4, 92-5,
92-6 & 92-6A
MI 119-2D-0029
07/22/93
ALLIED-SIGNAL, INC. (FRANKFORD
PLANT)
RCRA 90-27
PAD 002 312 791
07/29/93
SIMPSON PAPER COMPANY AND
LOUISIANA-PACIFIC CORPORATION
NPDES 92-26
CA 0005282
CA 0005894
08/06/93
-4-
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CASE NAME
APPEAL AND
DOCKET NO.
DATE
DECIDED
MAYAGUEZ REGIONAL SEWAGE
TREATMENT PLANT PUERTO RICO
AQUEDUCT AND SEWER AUTHORITY
NPDES 92-23
PR 0023795
08/23/93
GENESEE POWER STATION LIMITED
PARTNERSHIP
PSD 93-1 THROUGH
93-7
N/A
09/08/93
AMERICAN CYANAMID COMPANY,
SANTA ROSA PLANT AND JEFFERSON
SMURFIT CORPORATION,
JACKSONVILLE PAPERBOARD MILL
NPDES 92-18 AND
NPDES 92-8
FL 0002593 AND
FL 0000892
09/27/93
TOWN OF SEABROOK, N.H.
NPDES 93-2 & 93-3
NH 0101303
09/28/93
ASBESTOS SPECIALISTS, INC.
TSCA 92-3
TSCA ASB-VIII-92-
01
10/06/93
GENESEE POWER STATION LIMITED
PARTNERSHIP
PSD 93-1 THROUGH
93-7
N/A
10/22/93
LAIDLAW ENVIRONMENTAL SERVICES
THERMAL OXIDATION CORP., INC.
(TOC)
RCRA 92-20
SCD 981 467 616
10/26/93
GENERAL ELECTRIC COMPANY
TSCA 92-2A
TSCA IV-89—0016
11/01/93
BIDDLE SAWYER CORPORATION
TSCA 91-5
II TSCA TST88-
0244
11/17/93
AMOCO OIL COMPANY
MANDAN, NORTH DAKOTA REFINERY
RCRA 92-21
N/A
11/23/93
CROWN/VISTA ENERGY PROJECT
(CVEP)
WEST DEPTFORD, NJ
PSD 93-15, 93-16,
93-17 & 93-18
N/A
01/05/94
CITY OF PORT ST. JOE, FLORIDA
NPDES 93-9
FL 0020206
01/11/94
BECKMAN PRODUCTION SERVICES
UIC 92-9, 92-10,
92-11, 92-12, 92-
13, 92-14, 92-15 &
92-16
MI 093-2D-0004
01/24/94
-5
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CASE NAME
APPEAL AND
DOCKET NO.
DATE
DECIDED
SEI BIRCHWOOD, INC.
PSD 93-11 & (3-12
N/A
01/27/94
J&L SPECIALTY PRODUCTS CORP.
NPDES 92-22
OH 0007188
02/02/94
ADCOM WIRE, D/B/A ADCOM WIRE
COMPANY
RCRA 92-2
N/A
02/04/94
CITY OF FITCHBURG, MA
(EAST AND WEST PLANTS)
UPPER BLACKSTONE WATER
POLLUTION ABATEMENT DISTRICT
CHARLES RIVER POLLUTION CONTROL
DISTRICT
NPDES 93-13, 93-
14, 93-15 & 93-16
CONSOLIDATED
MA 0100986,
0101281
MA 0102369
MA 0102598
02/07/94
PRODUCTION PLATED PLASTICS,
INC.
RCRA (3008) 92-3
V-W-9 0-R-2 7
02/09/94
BURLINGTON NORTHERN RAILROAD
COMPANY
CAA 93-3
CAA VIII-92-12
02/15/94
COMMERCIAL CARTAGE COMPANY,
INC.
CAA 93-2
CAA 93-H-002
02/22/94
PATOWMACK POWER PARTNERS, L.P.
PSD 93-13, 93-14
N/A
02/24/94
RAY BIRNBAUM SCRAP YARD
TSCA 92-5
TSCA PCB-VIII-91-
01
03/07/94
INTER-POWER OF NEW YORK, INC.
PSD 92-8 & 92-9
N/A
03/16/94
METALWORKING LUBRICANTS COMPANY
RCRA 93-4
IN 000 646 950
03/21/94
CITY OF HOLLYWOOD, FLORIDA
NPDES 92-21
FL 0026255
03/21/94
HARDIN COUNTY, OH
RCRA (3008) 93-1
RCRA V-W-89-R-29
04/12/94
CITY OF HAVERHILL, WASTEWATER
DIVISION
NPDES 92-29
MA 0101621
04/14/94
ESSEX COUNTY (N.J.) RESOURCE
RECOVERY FACILITY
PSD 93-10
N/A
04/18/94
-6
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CASE NAME
APPEAL AND
DOCKET NO.
DATE
DECIDED
TRI-STATE MINT, INC., VON HOFF
INTERNATIONAL, INC., TRI-STATE
PROFESSIONAL RECOVERY, INC.,
ROBERT W. HOFF AND CONNIE K.
HOFF
EPCRA 92-3
CERCLA 92-1
EPCRA VIII-89-05
CEPC VIII-89-01
04/21/94
LIQUID AIR PUERTO RICO
CORPORATION
NPDES 92-1
PR 0001352
05/05/94
ENVIRONMENTAL WASTE CONTROL,
INC.
INKSTER, MI
RCRA 92-39
MID 057 002 602
05/13/94
ALLIED-SIGNAL INC.
(ELIZABETH, NJ)
RCRA 92-30
NJD 002 451 490
05/16/94
ADCOM WIRE, D/B/A ADCOM WIRE
COMPANY
RCRA 92-2
FLD 053 105 821
05/24/94
GORDON REDD LUMBER COMPANY
RCRA (3008) 91-4
88-01-R
06/09/94
J&L SPECIALTY PRODUCTS CORP.
NPDES 92-22
OH 007188
06/20/94
GREAT LAKES DIVISION OF
NATIONAL STEEL CORP.
EPCRA 93-3
EPCRA 007-1991
06/29/94
CITY OF YANKTON
NPDES-SD-0023396
07/01/94
GREAT LAKES CHEMICAL CORP. MAIN
PLANT
RCRA 92-34, 92-36
& 92-37
ARD 043 195 429
07/07/94
GENERAL MOTORS CORP., INLAND
FISHER GUIDE DIVISION
RCRA 93-5
IND 980 700 801
07/11/94
LIQUID AIR PUERTO RICO
CORPORATION
NPDES 92-1
PR 0001325
07/12/94
NATIONAL CEMENT COMPANY OF
CALIFORNIA, INC.
RCRA 94-5, 94-6
CAD 982 444 887
07/22/94
BOYER VALLEY FERTILIZER CO. and
UAP SPECIAL PRODUCTS, INC.
FIFRA 93-2
VII-1132C-92P
VII-1133C-92P
07/26/94
HERITAGE ENVIRONMENTAL
SERVICES, INC.
ROACHDALE LANDFILL
RCRA 93-8
IND 980 503 890
08/03/94
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CASE NAME
APPEAL AND
DOCKET NO.
DATE
DECIDED
PATRICK J. NEMAN, D/B/A THE
MAIN EXCHANGE
TSCA 93-3
TSCA V-C-024-88
08/26/94
MARINE SHALE PROCESSORS, INC.
NPDES 91-22
LA 0067351
09/12/94
DELCO ELECTRONICS CORPORATION
RCRA 93-10
IND 000 806 851
09/28/94
MOBIL OIL CORPORATION
EPCRA 94-2
EPCRA 91-0120
09/29/94
PACIFIC REFINING COMPANY
TSCA 94-1
TSCA 09-91-0010
10/19/94
NEW WATERBURY LTD.
TSCA 93-2
TSCA 1-88-1069
10/20/94
-8-
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