420 U.S. 770, 785, n.17, 43 L.Ed. 2d 616, 95 S.Ct. 1284 (1975), is controlling here: The applicable rule is that where the same act or The presiding officer evidently attached importance to the fact that the "sale" of a pesticide was a key element in proving a violation of each statutory provision.1 This fact alone, however, does not mean that each provision requires proof of the same facts. Comparison of the two provisions reveals that an additional fact must be proved in each instance: proof of pesticide production is required to prove an establishment registration violation, but not to prove a pesticide registration violation; and proof of a pesticide's unregistered status is required to establish a pesticide registration violation, but not to prove an establishment registration violation. Simply because a "sale" was an element common to each offense does not signify a single offense. Under the test articulated in Blockburger, two offenses were committed by Respondent. Since there is no dispute over the amount of the penalty or the presiding officer's findings of fact, the initial decision is affirmed in all respects save those stated above. FINAL ORDER A civil penalty of $1,080.00 is assessed against Respondent Holmquist Grain & Lumber Company for selling an unregistered pesticide and for producing it in an unregistered establishment, in violation of FIFRA §§ 12(a)(1)(A) and 12(a)(2)(L), respectively. Payment shall be made within sixty (60) days of this final order, unless otherwise agreed to by the parties. A cashier's check or certified check for the full amount of the penalty shall be forwarded to the 1 Proof of a sale is an element of the pesticide registration offense because the sale of an unregistered pesticide is expressly forbidden by section 12(a)(1)(A). It is also an element of the establishment registration offense, because section 12(a)(2)(L) makes it unlawful for anyone who is a pesticide producer to fail to register the establishment where it is produced. The term "establishment" is defined in section 2(dd) as any place where a pesticide is "produced * * * for distribution or sale." IN THE MATTER OF GEORGIA-PACIFIC NPDES Appeal No. 84-2 ORDER REMANDING PROCEEDINGS Decided April 29, 1985 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: Pursuant to 40 CFR § 124.91 (1984), Georgia-Pacific Corporation (GP) petitioned for review of the Regional Administrator's denial of its request for an evidentiary hearing because he determined that the issues raised by GP were purely legal.1 The Region did not submit a responsive petition; however, it did submit a "Notice of Intent to Oppose Petition for Review" and parts of the administrative record which it believed supported the decision to deny the evidentiary hearing. For the following reasons, I am remanding the proceedings to the Region.2 DISCUSSION The proposed permit contains internal waste stream effluent limitations and monitoring requirements for Total Suspended Solids (TSS) and pH. Generally, such requirements are only imposed at the final outfall; however, the regulations provide that "[w]hen permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible effluent limitations may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the monitoring required * 1 Where no factual issues are raised in a request for an evidentiary hearing, "the Regional Administrator * * [is] required to deny the request." 40 CFR § 124.74 Note (1984); see In the Matter of 446 Alaska Placer Mines, NPDES Appeal No. 8413, Decision dated April 2, 1985, for a discussion of the rules governing requests for evidentiary hearings. 2 The Chief Judicial Officer, as the Administrator's delegatee, has jurisdiction to consider this petition. by § 122.44(i) shall also be applied to the internal waste stream." 40 CFR § 122.45(i). The regulations go on to state that "[1]imits on internal waste streams will be imposed only when the fact sheet under § 122.56 sets forth the exceptional circumstances which make such limitations necessary ***." Id. GP argues that it should be granted an evidentiary hearing to "develop the facts necessary to show that the final outfall permit effluent limitations were sufficient and not 'impractical or infeasible' * * *.” *." However, the Region interpreted the request as a challenge to the "Agency's authority under the regulations to impose effluent limitations and monitoring requirements on internal waste streams" and, therefore, denied the request because this was "solely an issue of law." Denial of Request for Evidentiary Hearing dated May 25, 1984. I fail to perceive any such challenge on the part of GP; indeed, no such challenge to the regulations could be raised at this time.3 I agree with GP that it has raised a factual issue and, therefore, remand the proceedings to the Region for action consistent with this order.4 So ordered. 3 As I have previously stated, a challenge to the validity of the regulations may not be raised in an evidentiary hearing. In the Matter of Browning-Ferris Industries, NPDES Docket No. 81049, Order dated June 16, 1983; In re ITT Rayonier Inc., NPDES Appeal No. 81-6, Order dated May 2, 1983; see also Decision of the General Counsel No. 3 (March 6, 1975); Decision of the General Counsel No. 23 (July 23, 1975); In re the Dow Chemical Company, Docket No. TSCA (16(a)-1), 101 ALC 171 (Order Dismissing Interlocutory Appeal, July 28, 1982) (regulations may not be challenged in an administrative civil penalty hearing) and NRDC v. EPA, 673 F.2d 400, 406 (D.C. Cir. 1982) (judicial review of Agency regulations must come within ninety days of promulgation). 4 In its "Notice of Intent" the Region states that if review is granted, it intends to file a responsive brief. Because I am convinced that the denial of GP's hearing request is clearly erroneous, I see no purpose in delaying the proceedings further by granting review and receiving additional material in the form of briefs from the parties. Therefore, I am remanding the proceedings. I must emphasize that this order does not consider the merits of the internal limits and monitoring requirements; the only decision made today is that GP has raised a factual issue which may be aired in an evidentiary hearing. IN THE MATTER OF CITY OF MIDDLESBORO, NPDES Appeal No. 85-2 ORDER DENYING REVIEW Decided May 2, 1985 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: INTRODUCTION EPA Region IV petitions the Administrator to review an initial decision of an Administrative Law Judge (presiding officer) on NPDES Permit No. KY0027235 issued for discharges into Yellow Creek from Middlesboro, Kentucky's publicly owned treatment works (POTW). The permit required Middlesboro to monitor its POTW's influent (from the Middlesboro Tanning Company) and effluent for various metals on a twice-a-month and weekly basis, respectively.1 In his initial decision the presiding officer closely analyzed the justification offered by the Region at the adjudicatory hearing in 1 The influent from the cannery was to be monitored twice a month for the following metals: hexavalent chromium, trivalent chromium, nickel, zinc, cadmium, The weekly effluent monitoring requirements were for: cadmium, copper, lead, mercury, nickel and zinc. From NPDES Permit; No. 33 in the Administrative Record. In his initial decision the presiding officer states that the permit requires the influent to be monitored for the same parameters (metals) as the effluent. Reference to the permit itself shows that this is not the case. |