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. T 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 783-785 733-736 112-113, 120-124, 632-635 analysis of evidence by ALJ burden of proof regarding . expert testimony as to 115, 638-640 636-638 four percent of gross receipts averaged over four years, penalty determination based on 654-655 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 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105-114 prior deep ripping by previous landowner vs. respondent's deep ripping, evidence of effect on wetlands of withdrawn comments, failure to address Accelerated decisions, penalty appeals complete development of administrative record, denial due to evidentiary standard required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. 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 287 372-378 241-246 437, 441-443 461, 473, 477, 494-496 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 304-305, 307-313 304-305, 307-313 318, 327-331 . . 334 327-331 304-305, 307-313 318-326 317-318 318-326 304-305, 307-313, 316-318 304-305, 307-313, 336, 345-347 318-326 344, 353-255 305, 313, 339-355 342-345 Attorneys' fees and expenses under EAJA (See Equal Attorneys credibility of witnesses, deference to ALJ regarding untimeliness of penalty appeals based on problems with . . role of agency guidance and policy statements vis-a-vis . . 507 186-187, 189-191 187-188, 663-668 117-120, 173-174, 189-192, 394, 451 101, 104 125, 450-456 555-558 validity of regulation attacked in course of enforcement Authority, EAB's calculation of penalty. . judicial review, Board review of regulations subject to witnesses, assessment of credibility of testimony of 233, 390, |