[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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