D. Permit Compliance with NESHAP Rule In June 1999, EPA promulgated a final National Emissions Standards for Hazardous Air Pollutants (“NESHAP") rule for the fiberglass manufacturing industry. 64 Fed. Reg. 31,695 (June 14, 1999). This rule sets hazardous air pollutant emissions standards for fiberglass manufacturing facilities such as the proposed Knauf facility. Petitioners argue that the requirements of the NESHAP should be specifically enumerated in the PSD permit. Petition 99-37 at 25. SCAQMD points out that the permit has a specific provision noting that the Knauf facility will be subject to the new NESHAP. Revised Permit ¶ 10; Resp. to Petition 99-37 (AR 11,316). The permit condition further notes that emission limits in the NESHAP "do not supersede more stringent limits found in other conditions of this permit." Revised Permit ¶ 10. SCAQMD believes that it would be "unnecessary and impracticable to enumerate all of the requirements of the NESHAP" in the PSD permit. Resp. to Petition 99-37 (AR 11,316). Based on the circumstances presented here, we agree. The permit condition that cross-references the NESHAP is sufficient to incorporate all applicable provisions of the new rule into the PSD permit. Moreover, the NESHAP is independently enforceable. Review is denied on this issue. III. CONCLUSION The petitions for review of the revised PSD permit decision issued by SCAQMD for the proposed Knauf facility are denied. SCAQMD has complied with the Board's remand order in Knauf I. Documentation of the revised BACT determination provides adequate justification for SCAQMD's selection of PM10 control technology and emission limitations. SCAQMD also made an environmental justice analysis available to the public in accordance with our earlier order. That analysis concludes that the PSD permit for the proposed Knauf facility will not cause any disproportionately high or adverse human health or environmental effects on a low-income or minority population. Finally, there is no need for review of the revised permit condition regarding applicability of the fiberglass NESHAP. So ordered. 15 15 This decision constitutes final agency action for purposes of judicial review. See 40 C.F.R. § 124.19(f)(1)(i). Region IX shall make sure that notice of this decision is published in the Federal Register in accordance with 40 C.F.R. § 124.19(f)(2). IN RE THE UNITED STATES DEPARTMENT OF NAVY, KINGSVILLE NAVAL AIR STATION KINGSVILLE, TEXAS TSCA Appeal No. 99-2 FINAL DECISION Decided March 17, 2000 Syllabus This is an interlocutory appeal by the United States Department of the Navy, Kingsville Naval Air Station, Kingsville, Texas (“Navy") from an order (the "Order") arising out of an administrative enforcement action by the U.S. EPA Region VI (the “Region”) against Navy. The Region alleges that Navy violated regulations known as the "Disclosure Rule,” which were promulgated under the Residential Lead-Based Paint Hazard Reduction Act of 1992 (“RLBPHRA”) and which require, among other things, that, before the lessee is obligated under any "contract to *** lease" housing, the lessor shall make certain disclosures regarding lead-based paint and lead-based paint hazards located in the housing. At issue in this matter is the Navy's admitted noncompliance with the Disclosure Rule in connection with housing provided by it pursuant to eleven Residency Occupancy Agreements (“ROAS”) to certain enlisted and officer personnel and their families. By the Order, the Presiding Officer found that the eleven ROAS are "contracts to lease" within the meaning of RLBPHRA and the Disclosure Rule and that Navy was required to comply with the Disclosure Rule in connection with those ROAs. In this interlocutory appeal, Navy argues that the Order erred in a number of respects. As one of its arguments, Navy focuses on the phrase “contract * * * to lease" found in the RLBPHRA and the Disclosure Rule, and argues that the disclosure requirement is not applicable to Navy's ROAS with enlisted and officer personnel because (a) ROAS are not "leases" and (b) ROAS are not "contracts." Navy argues that the Presiding Officer erred by applying Texas law to determine whether the ROAs are "contracts to lease." Held: Reversed and complaint is dismissed. On the narrow issue of whether state law is controlling, the Region does not necessarily disagree that the Order is in error. The Order cannot be upheld based upon the Presiding Officer's analysis, which relied on Texas law. The Board, however, does not adopt Navy's contention that the federal property and contract law principles cited by Navy are dispositive as to whether a transaction is a “contract to lease" for purposes of the Disclosure Rule and RLBPHRA. Whether the eleven ROAS at issue in this case are "leases" or "contracts to lease" is a question of statutory construction. It is not clear that an ROA would necessarily be included or excluded from any so-called “ordinary" definition of the term lease. An ROA possesses many of the characteristics of an ordinary lease; yet at the same time, it has many attributes that make it sui generis, found only in the military context and lacking any apparent counterpart in civilian circles. However, the Region's suggested alternative interpretation, that "lease" under the Disclosure Rule and RLBPHRA means any consensual residency agreement, is breathtakingly overbroad. It cannot serve as a principled basis for upholding the Order's grant of accelerated decision in this case. Fairly read, the Disclosure Rule does not bear any contemplation of ROAS — arrangements peculiar to the military establishment. The Board declines to exercise its authority, as the Agency's final decisionmaker in this case, to fashion through this adjudicative proceeding a legally binding interpretation of the terms "lease" and "contract to lease" under the Disclosure Rule and the RLBPHRA. If the Agency intends to regulate ROAS under the Disclosure Rule, it needs to develop a workable and supportable interpretation of the Disclosure Rule to that end and, as appropriate, amend the Disclosure Rule to reflect that interpretation. Before Environmental Appeals Judges Scott C. Fulton, Ronald L. McCallum, and Edward E. Reich. Opinion of the Board by Judge Fulton: This is an interlocutory appeal by the United States Department of the Navy, Kingsville Naval Air Station, Kingsville, Texas ("Navy") from an order, dated February 18, 1999, issued by Administrative Law Judge Stephen J. McGuire (the "Presiding Officer"), titled "Order on Respondent's Motions for Accelerated Decision and for Discovery and on Complainant's Motions for Accelerated Decision and to Strike" (the "Order") arising out of an administrative enforcement action by the United States Environmental Protection Agency Region VI (the "Region") against Navy. For the following reasons, we reverse the Presiding Officer's Order and dismiss the Region's Complaint. I. BACKGROUND A. Statutory and Regulatory Background Congress passed Title X of the Housing and Community Development Act of 1992 under the common name of the "Residential Lead-Based Paint Hazard Reduction Act of 1992” (“RLBPHRA"), Pub. L. No. 102-550, 106 Stat. 3672 (1992) (codified in part at 42 U.S.C. and 15 U.S.C.). The stated purposes of RLBPHRA are, among other things, "to develop a national strategy to build the infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as possible" and "to reduce the threat of childhood lead poisoning in housing owned, assisted, or transferred by the Federal Government." 42 U.S.C. § 4851a(1),(6).' In order to accomplish its goals, RLBPHRA amended the Toxic Substance Control Act ("TSCA"), see RLBPHRA § 1021(a), 15 U.S.C. §§ 2681-2692, and required the promulgation of regulations governing 1 The RLBPHRA is codified in part at 42 U.S.C. §§ 4851, et seq. disclosure of lead-based paint hazards in "target housing" offered for "sale or lease." See RLBPHRA § 1018(a), 42 U.S.C. § 4852d(a). Lead Expo The amendments to TSCA included the addition of "Title IV sure Reduction," consisting of TSCA sections 401 to 412. See RLBPHRA § 1021(a), 15 U.S.C. §§ 2681-2692. TSCA section 408 provides in relevant part as follows: Each department, agency, and instrumentality of executive, legisla- 15 U.S.C. § 2688. TSCA section 409 further provides that it is “unlawful for any person to fail or refuse to comply with a provision of (TSCA) subchapter [IV Lead Exposure Reduction] or with any rule or order issued under this subchapter." 15 U.S.C. § 2689. Civil penalties for violations of TSCA section 409 may be imposed pursuant to TSCA section 16(a). 15 U.S.C. § 2615(a). RLBPHRA also required the Secretary of the Department of Housing and Urban Development ("HUD") and the Administrator of EPA to promulgate regulations for the disclosure of "lead-based paint hazards in target housing which is offered for sale or lease." RLBPHRA § 1018(a)(1), 42 U.S.C. § 4852d(a)(1). These regulations were to require that, "before the purchaser or lessee is obligated under any contract to purchase or lease housing," the seller or lessor shall make certain disclosures to the purchaser or tenant. Id. In March 1996, EPA and HUD issued joint regulations known as the "Real Estate Notification and Disclosure Rule." EPA's regulations are codified at 40 C.F.R. part 745, subpart F Disclosures of Known Lead-based Paint and/or Lead-Based Paint Hazards Upon Sale or Lease of Residential Property (the "Disclosure Rule"), and HUD's regulations are codified at 24 C.F.R. part 35, subpart H. The Disclosure Rule generally provides that certain "activities shall be completed before the purchaser or lessee is obligated under any contract to purchase or lease target housing that is not otherwise an exempt transaction." 40 C.F.R. § 745.107(a). As relevant to this case, the activities that are required to be completed include the following: (1) the seller or lessor shall provide the purchaser or lessee with an EPA-approved lead hazard information pamphlet, 40 C.F.R. § 745.107(a)(1); (2) each contract to lease target housing shall include an attachment containing a Lead Warning Statement consisting of certain language specified by the regulations, id. § 745.113(b)(1); (3) each contract to lease target housing shall disclose the presence of any known lead-based paint and/or lead-based paint hazards in the target housing, id. § 745.113(b)(2); (4) each contract to lease target housing shall include a list of any records or reports that are available pertaining to lead-based paint and/or lead-based paint hazards, id. § 745.113(b)(3); (5) each contract to lease target housing shall include a statement by the purchaser affirming receipt of the information specified above, id. § 745.113(b)(4); and (6) each contract to lease target housing shall include the signatures of the lessors and lessees certifying the accuracy of their statements, id. § 745.113(b)(6). Both RLBPHRA and the Disclosure Rule broadly define "target housing" as "any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing for the elderly or persons with disabilities) or any 0-bedroom dwelling." Compare 42 U.S.C. § 4851b(27) with 40 C.F.R. § 745.103. Neither RLBPHRA nor the Disclosure Rule define the terms "lease" or "contract to lease." The Disclosure Rule, however, defines the term "lessor" as "any entity that offers target housing for lease, rent, or sublease, including but not limited to individuals, partnerships, corporations, trusts, government agencies, Indian tribes, and nonprofit organizations." 40 C.F.R. § 45.103. B. Factual and Procedural Background On July 28, 1998, the Region filed an administrative complaint against Navy commencing this enforcement matter (the "Complaint"). Navy filed its answer to the Complaint on August 17, 1998 (the "Answer"). Navy is a component of the Department of Defense of the Executive Branch of the United States Government. Complaint ¶ 1; Answer ¶ 1. Navy operates the Kingsville Naval Air Station located in Kingsville, Texas (the "Kingsville Station"). Complaint ¶ 2; Answer ¶ 2. As part of its operations at the Kingsville Station, Navy provides housing to its enlisted and officer personnel and their families. Complaint ¶ 3; Answer ¶ 3. Navy manages the housing located at the Kingsville Station. Id. In April 1996, Navy prepared a "Lead Management Plan" for abating leadbased paint hazards in housing located at Kingsville Station. Complaint ¶ 8; An |