IN THE MATTER OF HENRICO COUNTY PUBLIC SCHOOLS TSCA Appeal No. 86-3 DENIAL OF MOTION FOR RECONSIDERATION Decided September 28, 1987 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: By motion dated June 23, 1987, Respondent, Henrico County Public Schools, seeks reconsideration of a final decision assessing a $1,330 civil penalty against it for violations of the Asbestos in School Rule (Rule). In its motion, Respondent argues that the final decision errs in creating a "useful life of the building" standard for encapsulation; that creation of such standard constitutes de facto rulemaking without following the rulemaking procedures in the Administrative Procedure Act (APA); and that this standard cannot be used as a basis for assessing a civil penalty since Respondent had no notice of this requirement. A decision to grant or deny a motion for reconsideration is discretionary. Fisher-Calo Chemical And Solvents Corporation, RCRA Appeal No. 83-2 (Denial of Motion for Reconsideration, April 20, 1983). Reconsideration allows the decisionmaker to correct errors, such as a misunderstanding of a party's position, and may be appropriate if some new matter, material to the outcome, has been erroneously decided. Id. After considering Respondent's argument, I conclude that there is no basis for reconsideration. Respondent has not raised any new matters or pointed to any facts in the record that did not receive consideration previously. Respondent argues that the final decision errs in creating a “useful life of the building" standard, asserting that such standard is both inconsistent with EPA's recognition that encapsulation is only a temporary control measure and with the conclusion that the Rule does not require maintenance of encapsulated material. First, contrary to Respondent's argument, the final decision does not create a standard for encapsulation-it interprets the exemption in a manner that is consistent with the provision's requirement that friable asbestos be eliminated. I concluded that EPA, in designating encapsulation as a means of "eliminating" the asbestos hazard and obtaining an exemption, must have intended that encapsulation be the equivalent of removal. However, encapsulation is subject to damage or deterioration; hence, I construed the exemption in a practical manner, saying that encapsulation must last the useful life of the building (for as long as the building is used as a school). Secondly, this interpretation is consistent with other statements in the final decision. The decision explains why schools seeking an exemption from the Rule must assure that encapsulated material lasts for the useful life of the building despite the fact that encapsulation is ordinarily considered a temporary control measure. Decision at 6-8. Respondent does not make any new arguments on this matter and there is no need to repeat the discussion here. See Remelt Metals, Inc., RCRA Appeal No. 84-6 (Oct. 16, 1984) (motion for reconsideration will not be granted to reconsider same arguments formerly made on appeal). Regarding Respondent's argument that my interpretation of the exemption is inconsistent with the conclusion that the Rule does not require maintenance of encapsulation, Respondent is mistaken. For schools claiming an exemption, the final decision requires that encapsulation afford the same protection as removal, i.e., remain intact for the useful life of the building, for it would be illogical to read the exemption as calling for anything less. This is not a requirement to maintain encapsulated material, for indeed there is none. If friable asbestos is discovered during the useful life of a schoolhouse, the exemption is lost regardless of the amount of maintenance that may have been performed on the encapsulation. The final decision observes, however, that EPA can and should exercise its enforcement discretion in determining whether to seek a penalty if a school has taken reasonable precautions to assure the integrity of encapsulated material. Decision at 9. This observation does not imply that schools have a legal duty to maintain encapsulation.1 It is possible that confusion was created by the statement that schools, as a practical matter, may have to embrace a maintenance program to assure that encapsulation lasts for the useful life of the building. Decision at 7-8. I did not intend to imply that maintenance of encapsulation will preserve the exemption. Rather, this statement begins the discussion in the decision about schools taking reasonable precautions to protect school children from unknowing exposure to an asbestos hazard. Since the final decision does not create a standard for encapsulation, I reject Respondent's argument concerning the need for following APA rulemaking procedures. Respondent's contention that the final decision erred in assessing a civil penalty because Respondent reasonably relied on its own interpretation of the provision, i.e., that would entitle it to the exemption even though the encapsulation later deteriorates or becomes damaged, is without merit. This case represents the first time §673.117(c)(2)(i) has been interpreted and every case of first impression necessarily has a retroactive effect. SEC v. Chenery Corp, 332 U.S. 194 (1947). However, this is not the situation where the Agency through adjudication is changing clear law, such as overruling prior decisions relied on by the parties. Cf. McDonald v. Watt, 653 F.2d 1035 (5th Cir. 1981) (interpretation of rule that represents abrupt departure from a well established practice is limited to prospective effect). Respondent's reliance on its own interpretation of the exemption provision, which proved to be incorrect, does not relieve Respondent from assessment of a civil penalty. Accordingly, Respondent's motion for reconsideration is denied. As stated above, the taking of such precautions may influence the decision respecting enforcement. IN THE MATTER OF INTERNATIONAL MINERALS AND CHEMICAL CORPORATION NPDES Appeal No. 86-2 ORDER DENYING REVIEW Decided October 2, 1987 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: On February 18, 1986, International Minerals and Chemical Corporation (IMC) petitioned the Administrator to review a decision of EPA Region IV denying IMC's request for an evidentiary hearing on the inclusion of certain terms in each of the subject NPDES permits specifically, inclusion of the reopener clause in Part III.B.; inclusion of the best management practice plan requirement in Part IV.; and inclusion of discharge limitations and monitoring requirements for three parameters (specific conductance, ammonia (unionized, and dissolved oxygen) in Part I.A.1. Region IV denied the hearing request on the grounds that IMC failed to raise these issues during the comment period. In addition, the Regional Administrator concluded that none of the three requests sets forth factual issues relevant to issuance of the permits, as required for an evidentiary hearing to be granted under 40 CFR § 124.76.1 A petition for review is not granted unless the Region's decision is clearly erroneous or involves an exercise of discretion or policy that is important and, therefore, should be reviewed by the Administrator. Boston Edison Company, NPDES Appeal No. 78-7 (August 28, 1978); E.I. du Pont de Nemours & Company, NPDES Appeal No. 78-2 (March 16, 1978); 44 Fed. Reg. 32,887 (Preamble to 40 CFR Part 124 regulations, June 7, 1979). The regulations do not confer an automatic right of review; rather the petitioner has the burden of demonstrating that review should be granted. See 40 CFR 1All references to the Code of Federal Regulation (CFR) are to the 1986 edition. § 124.91(a). For the reasons set forth below, IMC's request for review is denied.2 DISCUSSION IMC seeks review on the grounds that the Regional Administrator erred in finding that (1) IMC failed to contest the permit terms during the public comment period and (2) IMC's request for an evidentiary hearing raised only legal issues. In the alternative IMC argues that even if it raised only legal issues in its hearing request, EPA is not legally authorized to include the contested provisions in the permits. Review of the administrative record shows that IMC did not comment on any of the permits at issue during the public comment period. I reject IMC's argument that it put in issue Part I.A.1. of the permits concerning discharge limitations and monitoring requirements for dissolved oxygen, specific conductance, and ammonia (unionized)—by virtue of the fact that it commented on inclusion of these terms in a draft permit for its Port Sutton facility (NPDES permit No. FL0000264) and referred to the three permits at issue here in the body of those comments. IMC's comments on the Port Sutton permit were not sufficient to put EPA on notice of IMC's objections to the three permits in this case. Among other things, IMC specifically noted that the subject of the comments was the NPDES permit for Port Sutton; the singular reference to the three permits appeared in the middle of five pages of comments discussing Port Sutton; and IMC began its comments by stating that the Port Sutton facility is unique when compared to other IMC facilities within Florida, leading one to conclude that its comments would not apply to other NPDES permits. Under EPA regulations parties must raise all reasonably ascertainable issues and provide any supporting information during the public comment period. 40 CFR § 124.13. Having failed to make any comments on permits FL0000256, -230, and -248 during the comment period, IMC cannot raise issues, factual or legal, for the first time in a request for an evidentiary hearing or on appeal to the Administrator. In the Matter of Southwest Salt Company, UIC Appeal No. 85-3 (April 17, 1987); In the Matter of Great Lakes Chemical Corporation, NPDES Appeal No. 84-8 (Sept. 3, 1985); In re Willamette Industries, Inc., NPDES Appeal No. 83-7 (Dec. 27, 1983). There 2 The Chief Judicial Officer, as the Administrator's delegatee, has authority to decide this petition pursuant to 40 CFR § 124.91. |