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III. CONCLUSION

When we review the record as a whole, we are convinced that the Region's position regarding, among other things, the existence of a hydrological connection between the site and a navigable water or a tributary thereof had a reasonable basis in law and fact and was, therefore, substantially justified. Accordingly, we REVERSE the portion of the ALJ's EAJA Decision finding that the Region's underlying action against Bricks was not substantially justified, and we VACATE the award of fees and expenses.

So ordered.

SUBJECT INDEX

This subject index contains references to key words, phrases, and topics in reported decisions. Acronyms are cross-referenced to their full titles, but are used in subheadings.

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four percent of gross receipts averaged over four years, penalty determination based on

.

632-635, 638-640

654-655

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ability of respondent to pay penalty, ALJ's analysis of admissibility of evidence

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agency guidance and policy statements, discretion of ALJ not restricted by

applicability of specific factors, interlocutory appeal regarding

117-120,

173-174, 189-192, 394, 451

132

failure to reasonably apply RCRA statutory factors

33-39

late-arriving evidence, after prehearing exchanges

105-114

prior deep ripping by previous landowner vs. respondent's deep ripping, evidence of effect on wetlands of

205-212

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ACOE (See U.S. Army Corps of Engineers)

Additional NPDES permit conditions, challenge to permit

characterized as seeking

Adjacent or tributary waters

270-271,

280-281

determination of nature of

isolated waters vs.

711

198, 199

198, 201, 220-223, 230-231

(See also Navigable waters under CWA, penalty appeals) Administrative record

accelerated decision denied due to need to develop clear error of Region based on

response to comment letter not signed until after issuance of permit and therefore not part of

sufficiency of evidence to determine liability on remand TDS limits in NPDES permit modification not supported by evidence in .

Admissibility of evidence, penalty appeals

abuse of discretion regarding

287 372-378

241-246

437, 441-443

461, 473, 477, 494-496

105-114

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conversion from row crops to almond tree farming as change in use

199, 214, 215,

217-218

deep ripping (See Deep ripping activities)

normal farming exemption to destruction of wetlands by deep ripping activities (See Normal farming exemption)

Air conditioners for motor vehicle units, CAA penalties associated with service and repair of

.499

Aluminum sulfate used for chemically induced drinking

water sedimentation

Ambiguity in language of statute, what constitutes

federal facilities, CAA penalty determinations for

local asbestos removal laws, effect on NESHAP notice and work practice requirements of

American Indian lands (See Indian trust lands)

Amicus curiae briefs, permit appeals

BACT-less PSD permits

.

NPDES permit conditions, request for evidentiary hearing

on

"Anchor" stores, defined

Antibacksliding regulations for NPDES permits, TDS limits in permit modification as violation of

Antidegradation rules, state

open-pit copper mine discharges

570-571

141-146

317-318, 320

609, 618-620

533-535 . 307

461, 473, 478,

496

737-749

TDS limits (See State requirements, NPDES permit appeals) Army Corps of Engineers (See U.S. Army Corps of Engineers) Army, CAA penalty determinations against (See Federal facilities, CAA penalty determinations for)

Asbestos removal violations of NESHAP, penalty appeals amount of asbestos removed for applicability purposes

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Attorneys' fees and expenses under EAJA (See Equal
Access to Justice Act)

Attorneys

credibility of witnesses, deference to ALJ regarding
substitution of counsel and validity of service order

untimeliness of penalty appeals based on problems with
Authority, ALJ's

role of agency guidance and policy statements vis-a-vis

. . 507

186-187,

189-191

187-188,

663-668

117-120,

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penalty determination of ALJ, review of . . . . . 32-33, 116-124, 394-395
waiver of statute of limitations on CAA violations (See
Statute of limitations on CAA violations, delegation
of waiver authority for)

witnesses, assessment of credibility of testimony of

233, 390,
401-404

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