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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.

A

Abandoned mine sites

alternate remediation sites.

NPDES permit requirements for discharges from

Ability to pay penalty

prima facie evidence of .

783-785 733-736

112-113, 120-124, 632-635

abuse of discretion in analysis of evidence regarding

analysis of evidence by ALJ

burden of proof regarding .

expert testimony as to

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115, 638-640 636-638

114-118, 120-125, 640-642

four percent of gross receipts averaged over four years,

penalty determination based on

632-635, 638-640

654-655

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size of business, relationship to Abuse of discretion, penalty appeals

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

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

applicability of specific factors, interlocutory appeal

regarding

failure to reasonably apply RCRA statutory factors late-arriving evidence, after prehearing exchanges

452-453

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115, 638-640

105-114

117-120,

173-174, 189-192, 394, 451

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prior deep ripping by previous landowner vs. respondent's deep ripping, evidence of effect on wetlands of successor liability imposed as sanction for failure to comply with discovery order

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withdrawn comments, failure to address

Accelerated decisions, penalty appeals

complete development of administrative record, denial due to

evidentiary standard required for

interlocutory orders merging, denying, and granting

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

Additional NPDES permit conditions, challenge to permit

characterized as seeking

Adjacent or tributary waters

determination of nature of

isolated waters vs.

4-9

.. 287 284-287

270-271,

280-281

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

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waiver of statute of limitations on CAA violations.

Adverse rulings, penalty appeals

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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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304-305, 307-313

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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

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173-174, 189-192, 394, 451

101, 104

125, 450-456

555-558

validity of regulation attacked in course of enforcement
action

Authority, EAB's

calculation of penalty

.

judicial review, Board review of regulations subject to
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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