83_FR_22773 83 FR 22678 - Notice of Order Denying Petition To Set Aside Consent Agreement and Proposed Final Order

83 FR 22678 - Notice of Order Denying Petition To Set Aside Consent Agreement and Proposed Final Order

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 95 (May 16, 2018)

Page Range22678-22680
FR Document2018-10460

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.

Federal Register, Volume 83 Issue 95 (Wednesday, May 16, 2018)
[Federal Register Volume 83, Number 95 (Wednesday, May 16, 2018)]
[Notices]
[Pages 22678-22680]
From the Federal Register Online  [www.thefederalregister.org]
[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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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]
 BILLING CODE 6560-50-P



                                                22678                        Federal Register / Vol. 83, No. 95 / Wednesday, May 16, 2018 / Notices

                                                of the CS. In addition, the CS CEMS                     first-come, first served basis. Pre-                  comments before the Monday, May 28,
                                                needs to successfully pass the required                 registration is required.                             2018, deadline.
                                                relative accuracy test audit (RATA) and                 DATES: The NEJAC will convene a
                                                                                                                                                              A. Public Comment
                                                meet additional conditions outline in                   Thursday, May 31, 2018, starting at 3:30
                                                the determination letter for EPA                        p.m., Eastern Time. The meeting                         Individuals or groups making remarks
                                                approval.                                               discussion will focus on several topics               during the public comment period will
                                                                                                        including, but not limited to, the                    be limited to seven (7) minutes. To
                                                Abstract for [Z170003]
                                                                                                        discussion and deliberation of the final              accommodate the number of people
                                                   Q: Does the EPA approve BP Product                   report from the NEJAC Youth                           who want to address the NEJAC, only
                                                North America’s (BP) alternative                        Perspectives on Climate Change Work                   one representative of a particular
                                                monitoring request to maintain the                      Group. One public comment period                      community, organization, or group will
                                                hourly oxygen concentration in the                      relevant to the specific issues being                 be allowed to speak. Written comments
                                                exhaust gas from the catalyst regenerator               considered by the NEJAC (see                          can also be submitted for the record.
                                                at or above one percent by volume on                    SUPPLEMENTARY INFORMATION) is                         The suggested format for individuals
                                                a wet basis, as opposed to a dry basis                  scheduled for Thursday, May 31, 2018,                 providing public comments is as
                                                as required by 40 CFR 63 subpart UUU                    starting at 5:00 p.m., Eastern Time.                  follows: Name of speaker; name of
                                                at the Whiting, Indiana refinery?                       Members of the public who wish to                     organization/community; city and state;
                                                   A: Yes. The EPA approves the request                 participate during the public comment                 and email address; brief description of
                                                to maintain the hourly oxygen                           period are highly encouraged to pre-                  the concern, and what you want the
                                                concentration in the exhaust gas from                   register by 11:59 p.m., Eastern Time on               NEJAC to advise EPA to do. Written
                                                the catalyst regenerator at or above one                Monday, May 28, 2018.                                 comments received by registration
                                                percent by volume on a wet basis during                 FOR FURTHER INFORMATION CONTACT:                      deadline, will be included in the
                                                periods of startup, shutdown, and hot                   Questions or correspondence                           materials distributed to the NEJAC prior
                                                standby. BP provided information that                   concerning the public meeting should                  to the teleconference. Written comments
                                                indicates catalyst fines can plug an                    be directed to Karen L. Martin, U.S.                  received after that time will be provided
                                                analyzer that measures on a dry basis.                  Environmental Protection Agency, by                   to the NEJAC as time allows. All written
                                                In addition, the oxygen concentration                   mail at 1200 Pennsylvania Avenue NW                   comments should be sent to Karen L.
                                                on a wet basis will always yield a lower                (MC2201A), Washington, DC 20460; by                   Martin, EPA, via email at
                                                reading versus a dry basis oxygen                       telephone at 202–564–0203; via email at               martin.karenl@epa.gov.
                                                reading.                                                martin.karenl@epa.gov; or by fax at                   B. Information About Services for
                                                  Dated: May 7, 2018.                                   202–564–1624. Additional information                  Individuals With Disabilities or
                                                David A. Hindin,                                        about the NEJAC is available at https://              Requiring English Language Translation
                                                Director, Office of Compliance, Office of               www.epa.gov/environmentaljustice/                     Assistance
                                                Enforcement and Compliance Assurance.                   national-environmental-justice-
                                                [FR Doc. 2018–10463 Filed 5–15–18; 8:45 am]             advisory-council.                                        For information about access or
                                                                                                        SUPPLEMENTARY INFORMATION: The                        services for individuals requiring
                                                BILLING CODE 6560–50–P
                                                                                                        Charter of the NEJAC states that the                  assistance, please contact Karen L.
                                                                                                        advisory committee ‘‘will provide                     Martin, at (202) 564–0203 or via email
                                                ENVIRONMENTAL PROTECTION                                independent advice and                                at martin.karenl@epa.gov. To request
                                                AGENCY                                                  recommendations to the Administrator                  special accommodations for a disability
                                                                                                        about broad, crosscutting issues related              or other assistance, please submit your
                                                [FRL–9977–09–OECA]                                                                                            request at least fourteen (14) working
                                                                                                        to environmental justice. The NEJAC’s
                                                                                                        efforts will include evaluation of a                  days prior to the meeting, to give EPA
                                                National Environmental Justice                                                                                sufficient time to process your request.
                                                Advisory Council; Notification of                       broad range of strategic, scientific,
                                                                                                        technological, regulatory, community                  All requests should be sent to the
                                                Public Teleconference and Public                                                                              address, email, or phone/fax number
                                                Comment                                                 engagement and economic issues related
                                                                                                        to environmental justice.’’                           listed in the FOR FURTHER INFORMATION
                                                AGENCY: Environmental Protection                                                                              CONTACT section.
                                                Agency (EPA).                                           Registration
                                                                                                                                                                Dated: April 25, 2018.
                                                ACTION: Notification of public meeting.                    Registration for the May 31, 2018,                 Matthew Tejada,
                                                                                                        public teleconference will be processed               Designated Federal Officer, National
                                                SUMMARY:   Pursuant to the Federal                      at https://nejac-may-31-2018-public-                  Environmental Justice Advisory Council.
                                                Advisory Committee Act (FACA), the                      teleconference.eventbrite.com. Pre-                   [FR Doc. 2018–09556 Filed 5–15–18; 8:45 am]
                                                U.S. Environmental Protection Agency                    registration is required. Registration for            BILLING CODE 6560–50–P
                                                (EPA) hereby provides notice that the                   the May 31, 2018, meeting closes at
                                                National Environmental Justice                          11:59 p.m., Eastern Time on Monday,
                                                Advisory Council (NEJAC) will meet on                   May 28, 2018. The deadline to sign up                 ENVIRONMENTAL PROTECTION
                                                the dates and times described below. All                to speak during the public comment                    AGENCY
                                                meetings are open to the public.                        period, or to submit written public
                                                Members of the public are encouraged                    comments, is 11:59 p.m., Eastern Time
                                                                                                                                                              [CWA–05–2016–0014; FRL–9977–83–OARM]
                                                to provide comments relevant to the                     on Monday, May 28, 2018. When
sradovich on DSK3GMQ082PROD with NOTICES




                                                specific issues being considered by the                 registering, please provide your name,                Notice of Order Denying Petition To
                                                NEJAC. For additional information                       organization, city and state, email                   Set Aside Consent Agreement and
                                                about registering to attend the meeting                 address, and telephone number for                     Proposed Final Order
                                                or to provide public comment, please                    follow up. Please also indicate whether
                                                see Registration under SUPPLEMENTARY                    you would like to provide public                      AGENCY:  Office of Administrative Law
                                                INFORMATION. Due to a limited number of                 comment during the meeting, and                       Judges, Environmental Protection
                                                telephone lines, attendance will be on a                whether you are submitting written                    Agency (EPA).


                                           VerDate Sep<11>2014   17:34 May 15, 2018   Jkt 244001   PO 00000   Frm 00068   Fmt 4703   Sfmt 4703   E:\FR\FM\16MYN1.SGM   16MYN1


                                                                             Federal Register / Vol. 83, No. 95 / Wednesday, May 16, 2018 / Notices                                                        22679

                                                ACTION:  Notice of order denying petition               309(g) of the CWA, such as where the                  serve copies of the on the parties and
                                                to set aside consent agreement and                      administrative penalty action in                      the commenter, and provide public
                                                proposed final order.                                   question is settled pursuant to a consent             notice of the order. Id.
                                                                                                        agreement and final order, any person
                                                SUMMARY:   In accordance with section                                                                         II. Procedural Background
                                                                                                        who commented on the proposed
                                                309(g)(4)(C) of the Clean Water Act                     assessment may petition to set aside the                 In May of 2016, the Director of the
                                                (CWA or Act), notice is hereby given                    order on the basis that material evidence             Water Division of EPA’s Region 5
                                                that an Order Denying Petition to Set                   was not considered and to hold a                      (Complainant) and BP Products North
                                                Aside Consent Agreement and Proposed                    hearing on the penalty (33 U.S.C.                     America Inc. (Respondent) executed a
                                                Final Order has been issued in the                      1319(g)(4)(C); 40 CFR 22.45(c)(4)(ii)).               Consent Agreement and Final Order
                                                matter styled as In the Matter of BP                       The CWA requires that if the evidence              (CAFO) in the matter styled as In the
                                                Products North America Inc., Docket                     presented by the petitioner in support of             Matter of BP Products North America
                                                No. CWA–05–2016–0014. This                              the petition is material and was not                  Inc., Docket No. CWA–05–2016–0014.1
                                                document serves to notify the public of                 considered in the issuance of the order,              The CAFO sought to simultaneously
                                                the denial of the Petition to Set Aside                 the Administrator shall immediately set               commence and conclude an
                                                Consent Agreement and Proposed Final                    aside such order and provide a hearing                administrative penalty action under
                                                Order filed in the matter and explain the               in accordance with section 309(g)(33                  section 309(g) of the CWA against
                                                reasons for such denial.                                U.S.C. 1319(g)(4)(C)). Conversely, if the             Respondent for alleged violations found
                                                ADDRESSES: To access and review                         Administrator denies a hearing, the                   by EPA during an inspection of
                                                documents filed in the matter that is the               Administrator shall provide to the                    Respondent’s petroleum refinery located
                                                subject of this document, please visit                  petitioner, and publish in the Federal                at 2815 Indianapolis Boulevard in
                                                https://yosemite.epa.gov/oarm/alj/alj_                  Register, notice of and reasons for such              Whiting, Indiana (Facility), conducted
                                                web_docket.nsf/Dockets/CWA-05-2016-                     denial. Id.                                           from May 5 through May 9, 2014. Under
                                                0014.                                                      Pursuant to section 309(g) of the
                                                                                                                                                              the terms of the CAFO, Respondent
                                                                                                        CWA, the authority to decide petitions
                                                FOR FURTHER INFORMATION CONTACT:                                                                              admitted the jurisdictional allegations
                                                                                                        by commenters to set aside final orders
                                                Jennifer Almase, Attorney-Advisor,                                                                            set forth in the CAFO but neither
                                                                                                        entered without a hearing and provide
                                                Office of Administrative Law Judges                                                                           admitted nor denied the factual
                                                                                                        copies and/or notice of the decision has
                                                (1900R), Environmental Protection                                                                             allegations and alleged violations.
                                                                                                        been delegated to Regional
                                                Agency, 1200 Pennsylvania Ave. NW;                                                                            Nevertheless, Respondent waived its
                                                                                                        Administrators in administrative
                                                telephone number: (202) 564–6255                                                                              right to a hearing or to otherwise contest
                                                                                                        penalty actions brought by regional
                                                (main) or (202) 564–1170 (direct); fax                  offices of EPA. Administrator’s                       the CAFO, and agreed to pay a civil
                                                number: (202) 565–0044; email address:                  Delegation of Authority 2–52A                         penalty in the amount of $74,212. On
                                                oaljfiling@epa.gov.                                     (accessible at: http://intranet.epa.gov/              May 31, 2016, Complainant and
                                                SUPPLEMENTARY INFORMATION:                              ohr/rmpolicy/ads/dm/2-52A.pdf). The                   Respondent also entered into an
                                                                                                        Rules of Practice require that where a                Administrative Consent Order that
                                                I. Legal Authority                                                                                            incorporated a Compliance Plan setting
                                                                                                        commenter petitions to set aside a
                                                   Section 309(g)(1)(A) of the CWA                      consent agreement and final order in an               forth the measures Respondent had
                                                empowers EPA to assess an                               administrative penalty action brought                 already taken, as well as those it agreed
                                                administrative civil penalty whenever                   by a regional office of EPA, the Regional             it would take in the future, in response
                                                on the basis of any information available               Administrator shall assign a Petition                 to the alleged violations.
                                                EPA finds that a person has violated                    Officer to consider and rule on the                      On or about June 1, 2016, EPA
                                                certain sections of the Act or any permit               petition (40 CFR 22.45(c)(4)(iii)). Upon              provided public notice of its intent to
                                                condition or limitation implementing                    review of the petition and any response               file the proposed CAFO and accept
                                                any such section in a permit issued                     filed by the complainant, the Petition                public comments thereon. Carlotta
                                                under section 402 or 404 of the Act (33                 Officer shall then make written findings              Blake-King, Carolyn A. Marsh, Debra
                                                U.S.C. 1319(g)(1)(A)). However, before                  as to (A) the extent to which the petition            Michaud, and Patricia Walter
                                                issuing an order assessing an                           states an issue relevant and material to              (Petitioners) timely filed comments on
                                                administrative civil penalty under                      the issuance of the consent agreement                 the proposed CAFO (Comments).
                                                section 309(g), EPA is required by the                  and proposed final order; (B) whether                 Complainant subsequently prepared a
                                                CWA and the Consolidated Rules of                       the complainant adequately considered                 Response to Comments Regarding
                                                Practice Governing the Administrative                   and responded to the petition; and (C)                Proposed CAFO (Response to
                                                Assessment of Civil Penalties and the                   whether resolution of the proceeding by               Comments), which indicated that EPA
                                                Revocation/Termination or Suspension                    the parties is appropriate without a                  would not be altering the proposed
                                                of Permits (Rules of Practice) to provide               hearing (40 CFR 22.45(c)(4)(v)).                      CAFO. The Response to Comments was
                                                public notice of and reasonable                            If the Petition Officer finds that a               mailed to Petitioners, together with a
                                                opportunity to comment on the                           hearing is appropriate, the Presiding                 copy of the proposed CAFO, on or about
                                                proposed issuance of such order (33                     Officer shall order that the consent                  January 13, 2017, and each Petitioner
                                                U.S.C. 1319(g)(4); 40 CFR 22.45(b)(1)).                 agreement and proposed final order be                 received the materials by January 30,
                                                   Any person who comments on the                       set aside and establish a schedule for a              2017. On or about February 24, 2017,
                                                proposed assessment of a penalty is                     hearing (40 CFR 22.45(c)(4)(vi)).                     Petitioners timely filed a joint petition
                                                then entitled to receive notice of any                  Conversely, if the Petition Officer finds
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                              seeking to set aside the proposed CAFO
                                                hearing held under section 309(g) of the                that resolution of the proceeding
                                                CWA and at such hearing is entitled to                  without a hearing is appropriate, the                    1 While titled jointly, the Final Order is actually

                                                a reasonable opportunity to be heard                    Petition Officer shall issue an order                 a separate document, drafted to be signed solely by
                                                and to present evidence (33 U.S.C.                      denying the petition and stating reasons              Region 5’s Acting Regional Administrator. It is the
                                                                                                                                                              execution of the Final Order and its subsequent
                                                1319(g)(4)(B); 40 CFR 22.45(c)(1)). If no               for the denial (40 CFR 22.45(c)(4)(vii)).             filing with the Regional Hearing Clerk at Region 5
                                                hearing is held before issuance of an                   The Petition Officer shall then file the              that will effectuate the parties’ Consent Agreement
                                                order assessing a penalty under section                 order with the Regional Hearing Clerk,                and conclude the proceeding.



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                                                22680                         Federal Register / Vol. 83, No. 95 / Wednesday, May 16, 2018 / Notices

                                                and have a public hearing held thereon                  the burden of demonstrating that the                  adequately considered them.
                                                (Petition).                                             matters they raised with respect to the               Accordingly, any claim in this regard
                                                   A Request to Assign Petition Officer                 assessment of a higher penalty                        was denied.
                                                (Request) was issued by Region 5’s                      constituted material and relevant                       Having found that Petitioners failed to
                                                Acting Regional Administrator on May                    evidence that Complainant failed to                   present any relevant and material
                                                17, 2017, and served on Petitioners on                  consider in agreeing to the proposed                  evidence that had not been adequately
                                                May 30, 2017. In the Request, the Acting                CAFO. Thus, Petitioners’ claim in this                considered and responded to by
                                                Regional Administrator stated that after                regard was denied.                                    Complainant in agreeing to the
                                                considering the issues raised in the                      Second, Petitioners urged that a                    proposed CAFO, the undersigned then
                                                Petition, Complainant had decided not                   Supplemental Environmental Project                    addressed Petitioners’ requests for a
                                                to withdraw the CAFO. Accordingly, the                  (SEP) be incorporated into the proposed               public hearing in their Comments and
                                                Acting Regional Administrator                           CAFO and that local residents be                      Petition. Noting that Petitioners
                                                requested assignment of an                              included in the distribution of funds for             appeared to seek a public forum, at least
                                                Administrative Law Judge to consider                    SEP projects. The undersigned found                   in part, for the parties to explain the
                                                and rule on the Petition pursuant to                    that as Complainant had stated in its                 meaning of the proposed CAFO to the
                                                § 22.45(c)(4)(iii) of the Rules of Practice,            Response to Comments and Response to                  public, the undersigned observed that
                                                40 CFR 22.45(c)(4)(iii). By Order dated                 Petition, EPA lacks the legal authority to            section 309(g) of the CWA and the Rules
                                                June 16, 2017, the undersigned was                      demand a SEP or control the                           of Practice provide, not for a meeting of
                                                designated to preside over this matter,                 distribution of civil penalty funds. The              that nature, but rather a hearing at
                                                and Complainant was directed to file a                  undersigned concluded that given this                 which evidence is presented for the
                                                response to the Petition. Complainant                   lack of authority, the issues raised by               purpose of determining whether
                                                filed its Response to Petition to Set                   Petitioners with regard to a SEP were                 Complainant met its burden of proving
                                                Aside Consent Agreement and Proposed                    immaterial to the issuance of the                     that Respondent committed the
                                                Final Order (Response to Petition) on                   proposed CAFO. Thus, this claim was                   violations as alleged and that the
                                                July 13, 2017.                                          denied.                                               proposed penalty is appropriate based
                                                                                                          Third, Petitioners urged that an                    on applicable law and policy. The
                                                III. Denial of Petitioners’ Petition                    independent advisory committee and                    undersigned noted that Petitioners did
                                                   On May 8, 2018, the undersigned                      environmental monitoring program for                  not specifically identify any testimonial
                                                issued an Order Denying Petition to Set                 Respondent’s wastewater treatment                     or documentary evidence that they
                                                Aside Consent Agreement and Proposed                    plant be created. Petitioners then                    would present at any such hearing. The
                                                Final Order (Order). Therein, the                       questioned Respondent’s community                     undersigned further noted that
                                                undersigned denied the Petition without                 outreach activities, which Complainant                Petitioners did not offer in either their
                                                the need for a hearing on the basis that                had referenced in its Response to                     Comments or the Petition any relevant
                                                Petitioners had failed to present any                   Comments. The undersigned found that                  and material evidence or arguments that
                                                relevant and material evidence that had                 as argued by Complainant in its                       had not already been adequately
                                                not been adequately considered and                      Response to Petition, EPA lacks the                   addressed by Complainant. For these
                                                responded to by Complainant.                            legal authority under section 309(g) of               reasons, the undersigned found that
                                                   Specifically, Petitioners raised four                the CWA to establish advisory                         resolution of the proceeding by the
                                                issues.2 First, Petitioners argued that the             committees or environmental                           parties would be appropriate without a
                                                alleged violations warranted a higher                   monitoring programs or compel                         hearing.
                                                civil penalty than that assessed in the                 Respondent to engage in outreach                        The undersigned thus issued the
                                                proposed CAFO and that the occurrence                   activities. The undersigned concluded                 Order Denying Petition to Set Aside
                                                of the alleged violations in a region                   that given the absence of any material                Consent Agreement and Proposed Final
                                                designated as an Area of Concern                        and relevant issue not considered by                  Order.
                                                warranted an additional penalty of five                 Complainant with respect to the course
                                                million dollars. The undersigned                        of action requested by Petitioners, their               Dated: May 8, 2018.
                                                determined that while Complainant did                   claim in this regard was also denied.                 Susan L. Biro,
                                                not provide a detailed explanation of                     Finally, Petitioners referred in their              Chief Administrative Law Judge.
                                                how the civil penalty assessed in the                   Comments and Petition to Respondent                   [FR Doc. 2018–10460 Filed 5–15–18; 8:45 am]
                                                proposed CAFO had been calculated, it                   having a history of violations. While a               BILLING CODE 6560–50–P
                                                had considered and responded to                         violator’s history of prior violations is a
                                                Petitioners’ arguments in its Response to               statutory penalty factor to be considered
                                                Comments and Response to Petition.                      under section 309(g)(3) of the CWA, the               FEDERAL ELECTION COMMISSION
                                                The undersigned further found that                      undersigned found that Petitioners had
                                                Petitioners had produced no evidence to                 presented no specific claims of                       [Notice 2018–09]
                                                support their position or rebut                         violations that were related to those set
                                                                                                        forth in the proposed CAFO, and                       Filing Dates for the Texas Special
                                                Complainant’s position that it had                                                                            Election in the 27th Congressional
                                                properly implemented the applicable                     presented no argument supporting the
                                                                                                        notion that any prior, unspecified                    District
                                                policy governing its calculation and
                                                negotiation of the penalty assessed in                  infraction, had it been considered,                   AGENCY:   Federal Election Commission.
                                                the proposed CAFO. The undersigned                      should have led to a penalty different                ACTION: Notice of filing dates for special
                                                                                                        than that agreed upon by the parties.
sradovich on DSK3GMQ082PROD with NOTICES




                                                concluded that Petitioners had not met                                                                        election.
                                                                                                        The undersigned also noted that
                                                  2 Petitioners described the arguments set forth in    Complainant had addressed claims                      SUMMARY:   Texas has scheduled a special
                                                the Petition as additions to the Comments they had      concerning Respondent’s history of                    general election on June 30, 2018, to fill
                                                previously submitted to EPA in response to the          violations in its Response to Comments,               the U.S. House of Representatives seat
                                                public notice of EPA’s intent to file the proposed
                                                CAFO. Accordingly, the undersigned considered
                                                                                                        which suggested that to the extent any                in the 27th Congressional District
                                                the arguments raised by Petitioners in both the         prior violations would be relevant to the             vacated by Representative Blake
                                                Petition and the Comments.                              proposed CAFO, Complainant had                        Farenthold. There are two possible


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Document Created: 2018-11-02 09:13:44
Document Modified: 2018-11-02 09:13:44
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of order denying petition to set aside consent agreement and proposed final order.
ContactJennifer 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
FR Citation83 FR 22678 

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