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Region V, in its Response to the Petition, notes that the permit, on page A-1 of 1, limits injection pressure to a maximum of 625 PSI. The footnote to this limitation makes clear that it is being established to prevent confining-formation fracturing. The permit also includes a provision expressly prohibiting "injection at a pressure which initiates fractures in the confining zone ***" Section II(B)(1)(b); Permit at 11. Region V further states that it is up to the permittee to determine how to achieve compliance; EPA will not normally dictate the precise method of compliance with a limitation on injection pressure.

Petitioner further challenges the permit because it does not "specify requirements concerning the proper use, maintenance and installation of monitoring equipment" as allegedly required by 40 CFR § 144.54(a). However, the Petition does not accurately quote this section. The section actually requires specification of requirements "concerning the proper use, maintenance and installation, when appropriate, of monitoring equipment" (emphasis added). This provision allows broad discretion in determining whether any such requirements should be specified. The Region has included a provision relating to the monitoring of wellhead injection pressure which specifies a minimum monitoring frequency of weekly and a minimum reporting frequency of monthly. Section II(B)(2)(d); Permit at 12. Petitioner has not shown why this provision is inadequate or inconsistent with § 144.54(a).

We believe the limitation on injection pressure and the provision for monitoring such pressure fully comply with the requirements of the UIC regulations; Petitioner has failed to meet his burden under 40 CFR § 124.19, and thus review is denied.

III. CONCLUSION

The issues of the adequacy of Attachment G of the Permit Application and demonstration of financial responsibility have not been preserved for review, and review is accordingly denied. Review of the issue of the adequacy of precautions against fracturing the confining zone is denied for failure to demonstrate that review is warranted under 40 CFR § 124.19. The issues relating to the adequacy of Attachment B to the Permit Application (existence of other wells) and the applicability and effect of the Endangered Species Act are hereby remanded to the Region for further proceedings consistent with this

order.5 The Region should give public notice of this remand under 40 CFR § 124.10. Appeal of the remand decision will not be required to exhaust administrative remedies under § 124.19(f)(1)(iii) of the rules. In accordance with 40 CFR § 124.16(a)(1), since the contested permit is for a new injection well, the permit will remain stayed pending final agency action on remand.

So ordered.

5 Although § 124.19 of the rules contemplates that additional briefing will be submitted upon the grant of a Petition for Review, a direct remand without additional submissions is appropriate where, as here, it does not appear that further briefs on appeal would shed light on the issues to be addressed on remand. See, e.g., In re Chemical Waste Management, Inc., RCRA Appeal No. 87-12, at 5 (May 27, 1988).

IN THE MATTER OF THERMEX ENERGY
CORPORATION AND RICHARD W. FORSYTHE

RCRA (3008) Appeal No. 91-3

ORDER ON MOTION FOR INTERLOCUTORY APPEAL

Decided June 30, 1992

Syllabus

On April 23, 1991, the Presiding Officer summarily dismissed Richard W. Forsythe as a Respondent in this case, relying primarily on In re Southern Timber Products, Inc., RCRA (3008) Appeal No. 89-2 (November 13, 1990). The Presiding Officer declined to certify the issue for interlocutory appeal, and Complainant has moved for a non-certified interlocutory appeal.

Held: Complainant has shown, pursuant to 40 CFR § 22.29(c), that exceptional circumstances exist and that to delay resolution of the matter would be contrary to the public interest, and the motion for interlocutory appeal is therefore granted. The issue of Forsythe's liability involves genuine issues of material fact that require an evidentiary hearing to resolve, and the orders dismissing Forsythe are therefore vacated, and the case is remanded for further proceedings.

Judges

Before Environmental Appeals Ronald L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion of the Board by Judge Dowling:

Before the Environmental Appeals Board1 is Complainant's motion for interlocutory appeal filed under Section 22.29(c) of the Agency's Consolidated Rules of Practice. The motion seeks review and reversal of two April 23, 1991 orders by the Presiding Officer that dismiss Richard W. Forsythe as a Respondent. For the reasons set forth below, those orders are vacated, and the case is remanded for further proceedings.

1 The Environmental Appeals Board, as the Administrator's delegatee, has authority to decide interlocutory appeals under 40 CFR §22.29. See 57 Fed. Reg. 5320 (Feb. 13, 1992).

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FORSYTHE

I. BACKGROUND

On December 30, 1988, U.S. EPA Region VIII filed a Complaint against Thermex Energy Corporation alleging violations of Section 3005(e) of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §6901 et seq., as well as 40 CFR Part 262, which sets forth standards for generators of hazardous waste under RCRA. The alleged violations involve Thermex's blasting agent production and storage facility in Natrona County, Wyoming. The Complaint contains a proposed compliance order to compel Thermex (1) to determine the types of hazardous wastes at the facility; (2) to remove all hazardous wastes from the facility to a licensed hazardous waste disposal facility; and (3) to otherwise come into full compliance with RCRA and the implementing rules. The Complaint also proposes a civil penalty of $70,000.

Richard W. Forsythe is President, Chief Executive Officer, Chairman of the Board, and principal shareholder of Thermex. On October 4, 1989, Complainant moved to amend the Complaint to add Forsythe as a Respondent, and on November 27, 1989, the Presiding Officer granted the motion.

Respondents have now removed all hazardous waste from the facility and have otherwise fully complied with the proposed compliance order. The only issues that remain are whether Respondents violated RCRA and the implementing rules and, if so, whether Complainant's proposed $70,000 penalty is appropriate. Thermex is now in bankruptcy proceedings, and Complainant has filed a "Proof of Claim" for the $70,000 proposed penalty. Complainant asserts, however, that it is a subordinated, unsecured creditor, and it does not anticipate that Thermex will be able to pay any significant penalty.

On March 19, 1991, Respondents filed a motion for partial summary judgment, requesting that Forsythe be dismissed as a party. On April 23, 1991, the Presiding Officer issued two orders granting the motion to dismiss Forsythe. The dismissal is based largely on the Final Decision in Southern Timber Products, Inc., RCRA (3008) Appeal No. 89-2 (November 13, 1990), which declined to hold a corporate officer personally liable for violations of RCRA rules (Part 265) applicable to "owners and operators" of hazardous waste management facilities.

On April 30, 1991, Complainant moved for certification of the ruling for interlocutory appeal under 40 CFR § 22.29(a), but the Pre

siding Office declined to certify the matter. Complainant then filed the instant motion.

II. DISCUSSION

Where a Presiding Officer declines to certify a ruling for interlocutory appeal, the Board may review the ruling on interlocutory appeal only if it determines, "upon motion of a party and in exceptional circumstances, that to delay review would be contrary to the public interest." 40 CFR § 22.29(c). Absent such a determination, review must wait until issuance of an initial decision that disposes of all issues.

In our view, exceptional circumstances exist in this case sufficient to warrant immediate review of the decision to dismiss Forsythe. As noted by Complainant, unless the orders at issue are reviewed now, Complainant would be forced to litigate against Thermex alone. The Presiding Officer would presumably exclude as irrelevant evidence bearing upon Forsythe's role in Thermex, his activities at the Natrona facility, his connection to the alleged violations, and other aspects of his involvement that bear upon the issue of his liability. If the orders dismissing Forsythe were then reversed on appeal of the initial decision, additional evidentiary hearings would be required. Such a bifurcated hearing would lead to an inefficient use of the Agency's adjudicative resources. Moreover, Complainant would be placed in the untenable position of having to decide whether to pursue potentially costly litigation against an insolvent corporation without knowing whether the corporation would be able to pay a civil penalty or whether Forsythe would be reinstated as a Respondent. Faced with such uncertainty, Complainant might well decide to direct its enforcement resources elsewhere, leaving the issues of Forsythe's and Thermex's liability and the penalty amount unresolved. The public interest in vigorous and fully effective enforcement of the environmental laws warrants immediate review of the issue.

Having concluded that interlocutory review is appropriate, we now address the issue of Forsythe's dismissal. In our view, the dismissal is premature for two reasons. First, Southern Timber involved the issue of whether a corporate officer was an “owner” or “operator" of the facility and thus liable for violations of Part 265 of the rules. In large measure, the analysis turned on the specific wording of the regulatory definition of "operator." See Southern Timber (Final Decision), slip op. at 16-25; Southern Timber (Order on Motion for Reconsideration), slip op. at 16-38. In contrast, Forsythe is alleged to be liable for violations of rules that apply to hazardous waste

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