[Federal Register Volume 83, Number 95 (Wednesday, May 16, 2018)]
[Notices]
[Pages 22678-22680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10460]
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ENVIRONMENTAL PROTECTION AGENCY
[CWA-05-2016-0014; FRL-9977-83-OARM]
Notice of Order Denying Petition To Set Aside Consent Agreement
and Proposed Final Order
AGENCY: Office of Administrative Law Judges, Environmental Protection
Agency (EPA).
[[Page 22679]]
ACTION: Notice of order denying petition to set aside consent agreement
and proposed final order.
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SUMMARY: In accordance with section 309(g)(4)(C) of the Clean Water Act
(CWA or Act), notice is hereby given that an Order Denying Petition to
Set Aside Consent Agreement and Proposed Final Order has been issued in
the matter styled as In the Matter of BP Products North America Inc.,
Docket No. CWA-05-2016-0014. This document serves to notify the public
of the denial of the Petition to Set Aside Consent Agreement and
Proposed Final Order filed in the matter and explain the reasons for
such denial.
ADDRESSES: To access and review documents filed in the matter that is
the subject of this document, please visit https://yosemite.epa.gov/oarm/alj/alj_web_docket.nsf/Dockets/CWA-05-2016-0014.
FOR FURTHER INFORMATION CONTACT: Jennifer Almase, Attorney-Advisor,
Office of Administrative Law Judges (1900R), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW; telephone number: (202) 564-6255
(main) or (202) 564-1170 (direct); fax number: (202) 565-0044; email
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Legal Authority
Section 309(g)(1)(A) of the CWA empowers EPA to assess an
administrative civil penalty whenever on the basis of any information
available EPA finds that a person has violated certain sections of the
Act or any permit condition or limitation implementing any such section
in a permit issued under section 402 or 404 of the Act (33 U.S.C.
1319(g)(1)(A)). However, before issuing an order assessing an
administrative civil penalty under section 309(g), EPA is required by
the CWA and the Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation/
Termination or Suspension of Permits (Rules of Practice) to provide
public notice of and reasonable opportunity to comment on the proposed
issuance of such order (33 U.S.C. 1319(g)(4); 40 CFR 22.45(b)(1)).
Any person who comments on the proposed assessment of a penalty is
then entitled to receive notice of any hearing held under section
309(g) of the CWA and at such hearing is entitled to a reasonable
opportunity to be heard and to present evidence (33 U.S.C.
1319(g)(4)(B); 40 CFR 22.45(c)(1)). If no hearing is held before
issuance of an order assessing a penalty under section 309(g) of the
CWA, such as where the administrative penalty action in question is
settled pursuant to a consent agreement and final order, any person who
commented on the proposed assessment may petition to set aside the
order on the basis that material evidence was not considered and to
hold a hearing on the penalty (33 U.S.C. 1319(g)(4)(C); 40 CFR
22.45(c)(4)(ii)).
The CWA requires that if the evidence presented by the petitioner
in support of the petition is material and was not considered in the
issuance of the order, the Administrator shall immediately set aside
such order and provide a hearing in accordance with section 309(g)(33
U.S.C. 1319(g)(4)(C)). Conversely, if the Administrator denies a
hearing, the Administrator shall provide to the petitioner, and publish
in the Federal Register, notice of and reasons for such denial. Id.
Pursuant to section 309(g) of the CWA, the authority to decide
petitions by commenters to set aside final orders entered without a
hearing and provide copies and/or notice of the decision has been
delegated to Regional Administrators in administrative penalty actions
brought by regional offices of EPA. Administrator's Delegation of
Authority 2-52A (accessible at: http://intranet.epa.gov/ohr/rmpolicy/ads/dm/2-52A.pdf). The Rules of Practice require that where a commenter
petitions to set aside a consent agreement and final order in an
administrative penalty action brought by a regional office of EPA, the
Regional Administrator shall assign a Petition Officer to consider and
rule on the petition (40 CFR 22.45(c)(4)(iii)). Upon review of the
petition and any response filed by the complainant, the Petition
Officer shall then make written findings as to (A) the extent to which
the petition states an issue relevant and material to the issuance of
the consent agreement and proposed final order; (B) whether the
complainant adequately considered and responded to the petition; and
(C) whether resolution of the proceeding by the parties is appropriate
without a hearing (40 CFR 22.45(c)(4)(v)).
If the Petition Officer finds that a hearing is appropriate, the
Presiding Officer shall order that the consent agreement and proposed
final order be set aside and establish a schedule for a hearing (40 CFR
22.45(c)(4)(vi)). Conversely, if the Petition Officer finds that
resolution of the proceeding without a hearing is appropriate, the
Petition Officer shall issue an order denying the petition and stating
reasons for the denial (40 CFR 22.45(c)(4)(vii)). The Petition Officer
shall then file the order with the Regional Hearing Clerk, serve copies
of the on the parties and the commenter, and provide public notice of
the order. Id.
II. Procedural Background
In May of 2016, the Director of the Water Division of EPA's Region
5 (Complainant) and BP Products North America Inc. (Respondent)
executed a Consent Agreement and Final Order (CAFO) in the matter
styled as In the Matter of BP Products North America Inc., Docket No.
CWA-05-2016-0014.\1\ The CAFO sought to simultaneously commence and
conclude an administrative penalty action under section 309(g) of the
CWA against Respondent for alleged violations found by EPA during an
inspection of Respondent's petroleum refinery located at 2815
Indianapolis Boulevard in Whiting, Indiana (Facility), conducted from
May 5 through May 9, 2014. Under the terms of the CAFO, Respondent
admitted the jurisdictional allegations set forth in the CAFO but
neither admitted nor denied the factual allegations and alleged
violations. Nevertheless, Respondent waived its right to a hearing or
to otherwise contest the CAFO, and agreed to pay a civil penalty in the
amount of $74,212. On May 31, 2016, Complainant and Respondent also
entered into an Administrative Consent Order that incorporated a
Compliance Plan setting forth the measures Respondent had already
taken, as well as those it agreed it would take in the future, in
response to the alleged violations.
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\1\ While titled jointly, the Final Order is actually a separate
document, drafted to be signed solely by Region 5's Acting Regional
Administrator. It is the execution of the Final Order and its
subsequent filing with the Regional Hearing Clerk at Region 5 that
will effectuate the parties' Consent Agreement and conclude the
proceeding.
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On or about June 1, 2016, EPA provided public notice of its intent
to file the proposed CAFO and accept public comments thereon. Carlotta
Blake-King, Carolyn A. Marsh, Debra Michaud, and Patricia Walter
(Petitioners) timely filed comments on the proposed CAFO (Comments).
Complainant subsequently prepared a Response to Comments Regarding
Proposed CAFO (Response to Comments), which indicated that EPA would
not be altering the proposed CAFO. The Response to Comments was mailed
to Petitioners, together with a copy of the proposed CAFO, on or about
January 13, 2017, and each Petitioner received the materials by January
30, 2017. On or about February 24, 2017, Petitioners timely filed a
joint petition seeking to set aside the proposed CAFO
[[Page 22680]]
and have a public hearing held thereon (Petition).
A Request to Assign Petition Officer (Request) was issued by Region
5's Acting Regional Administrator on May 17, 2017, and served on
Petitioners on May 30, 2017. In the Request, the Acting Regional
Administrator stated that after considering the issues raised in the
Petition, Complainant had decided not to withdraw the CAFO.
Accordingly, the Acting Regional Administrator requested assignment of
an Administrative Law Judge to consider and rule on the Petition
pursuant to Sec. 22.45(c)(4)(iii) of the Rules of Practice, 40 CFR
22.45(c)(4)(iii). By Order dated June 16, 2017, the undersigned was
designated to preside over this matter, and Complainant was directed to
file a response to the Petition. Complainant filed its Response to
Petition to Set Aside Consent Agreement and Proposed Final Order
(Response to Petition) on July 13, 2017.
III. Denial of Petitioners' Petition
On May 8, 2018, the undersigned issued an Order Denying Petition to
Set Aside Consent Agreement and Proposed Final Order (Order). Therein,
the undersigned denied the Petition without the need for a hearing on
the basis that Petitioners had failed to present any relevant and
material evidence that had not been adequately considered and responded
to by Complainant.
Specifically, Petitioners raised four issues.\2\ First, Petitioners
argued that the alleged violations warranted a higher civil penalty
than that assessed in the proposed CAFO and that the occurrence of the
alleged violations in a region designated as an Area of Concern
warranted an additional penalty of five million dollars. The
undersigned determined that while Complainant did not provide a
detailed explanation of how the civil penalty assessed in the proposed
CAFO had been calculated, it had considered and responded to
Petitioners' arguments in its Response to Comments and Response to
Petition. The undersigned further found that Petitioners had produced
no evidence to support their position or rebut Complainant's position
that it had properly implemented the applicable policy governing its
calculation and negotiation of the penalty assessed in the proposed
CAFO. The undersigned concluded that Petitioners had not met the burden
of demonstrating that the matters they raised with respect to the
assessment of a higher penalty constituted material and relevant
evidence that Complainant failed to consider in agreeing to the
proposed CAFO. Thus, Petitioners' claim in this regard was denied.
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\2\ Petitioners described the arguments set forth in the
Petition as additions to the Comments they had previously submitted
to EPA in response to the public notice of EPA's intent to file the
proposed CAFO. Accordingly, the undersigned considered the arguments
raised by Petitioners in both the Petition and the Comments.
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Second, Petitioners urged that a Supplemental Environmental Project
(SEP) be incorporated into the proposed CAFO and that local residents
be included in the distribution of funds for SEP projects. The
undersigned found that as Complainant had stated in its Response to
Comments and Response to Petition, EPA lacks the legal authority to
demand a SEP or control the distribution of civil penalty funds. The
undersigned concluded that given this lack of authority, the issues
raised by Petitioners with regard to a SEP were immaterial to the
issuance of the proposed CAFO. Thus, this claim was denied.
Third, Petitioners urged that an independent advisory committee and
environmental monitoring program for Respondent's wastewater treatment
plant be created. Petitioners then questioned Respondent's community
outreach activities, which Complainant had referenced in its Response
to Comments. The undersigned found that as argued by Complainant in its
Response to Petition, EPA lacks the legal authority under section
309(g) of the CWA to establish advisory committees or environmental
monitoring programs or compel Respondent to engage in outreach
activities. The undersigned concluded that given the absence of any
material and relevant issue not considered by Complainant with respect
to the course of action requested by Petitioners, their claim in this
regard was also denied.
Finally, Petitioners referred in their Comments and Petition to
Respondent having a history of violations. While a violator's history
of prior violations is a statutory penalty factor to be considered
under section 309(g)(3) of the CWA, the undersigned found that
Petitioners had presented no specific claims of violations that were
related to those set forth in the proposed CAFO, and presented no
argument supporting the notion that any prior, unspecified infraction,
had it been considered, should have led to a penalty different than
that agreed upon by the parties. The undersigned also noted that
Complainant had addressed claims concerning Respondent's history of
violations in its Response to Comments, which suggested that to the
extent any prior violations would be relevant to the proposed CAFO,
Complainant had adequately considered them. Accordingly, any claim in
this regard was denied.
Having found that Petitioners failed to present any relevant and
material evidence that had not been adequately considered and responded
to by Complainant in agreeing to the proposed CAFO, the undersigned
then addressed Petitioners' requests for a public hearing in their
Comments and Petition. Noting that Petitioners appeared to seek a
public forum, at least in part, for the parties to explain the meaning
of the proposed CAFO to the public, the undersigned observed that
section 309(g) of the CWA and the Rules of Practice provide, not for a
meeting of that nature, but rather a hearing at which evidence is
presented for the purpose of determining whether Complainant met its
burden of proving that Respondent committed the violations as alleged
and that the proposed penalty is appropriate based on applicable law
and policy. The undersigned noted that Petitioners did not specifically
identify any testimonial or documentary evidence that they would
present at any such hearing. The undersigned further noted that
Petitioners did not offer in either their Comments or the Petition any
relevant and material evidence or arguments that had not already been
adequately addressed by Complainant. For these reasons, the undersigned
found that resolution of the proceeding by the parties would be
appropriate without a hearing.
The undersigned thus issued the Order Denying Petition to Set Aside
Consent Agreement and Proposed Final Order.
Dated: May 8, 2018.
Susan L. Biro,
Chief Administrative Law Judge.
[FR Doc. 2018-10460 Filed 5-15-18; 8:45 am]
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