IN THE MATTER OF LOUISIANA-PACIFIC CAA (120) Appeal No. 87-2 FINAL ORDER Decided May 19, 1989 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: Louisiana Pacific Corporation (Louisiana Pacific or Respondent) operates a waferboard processing plant in Hayward, Wisconsin, employing two production lines, Hayward I and Hayward II. On September 26, 1984, EPA Region V issued a notice of noncompliance (NON) against Louisiana Pacific under section 120 of the Clean Air Act, 42 U.S.C. § 7420, charging that it violated certain emission limitations in Hayward I's permit issued pursuant to the regulations promulgated under the Act for the prevention of significant deterioration of air quality (PSD).1 The NON also charged Louisiana Pacific with failure to obtain a permit (approval to construct) for Hayward II as required by PSD regulations. After a two-day evidentiary hearing in which Respondent contested the charges, the Administrative Law Judge (ALJ) found that Respondent had violated the emission limitations set forth in Hayward I's permit. The ALJ also concluded that Hayward II is a major modification to a major source subject to PSD preconstruction and permit requirements, and that Respondent had violated the require The Clean Air Act and PSD regulations promulgated thereunder require an owner or operator of a major stationary source in an attainment area to obtain a permit (approval to construct) for the source and to operate within the emission limitations contained in such permit. 42 U.S.C. §7475; 40 CFR § 52.21. An attainment area is one in which the national ambient air quality standards (NAAQS) for particular pollutants are met or where EPA has not yet determined the attainment status. Respondent's facility is located in an area that is designated as being in attainment of the NAAQS for all designated air pollutants. 40 CFR §81.350. ment that it obtain a PSD permit for Hayward II prior to construction and operation of the facility. Respondent appeals to the Administrator,2 asking for reversal of the initial decision and a finding that it is not liable for noncompliance penalties under section 120. In its six-page appeal, Respondent raises 35 objections to the initial decision. As will be discussed below, Respondent's objections are not sufficient to merit consideration. Nor do Respondent's objections raise any issues on appeal that were not fully considered by the ALJ.3 Based on review of the record on appeal, I am not persuaded that any material error was committed nor do I find other grounds for reversal of the initial decision. Accordingly, the ALJ's decision is affirmed, and all findings of fact, conclusions of law and reasons therefor in the decision are adopted and incorporated by reference in this final order.4 Louisiana Pacific aggressively litigated against a finding of liability in the section 120 proceedings below, subjecting EPA's witnesses to extensive cross-examination and submitting various briefs to the ALJ that reflect detailed attention to the issues of this complex litigation. Respondent's appeal, on the other hand, is an entirely different matter. While Respondent identifies a specific finding or conclusion that it considers erroneous in each of the 35 objections in its appeal, 2 The Chief Judicial Officer, as the Administrator's delegatee, has authority to decide this appeal under 40 CFR Part 22 and 40 CFR § 66.91. 3 With the exception of ¶30, Respondent's objections involve the same issues that were addressed by the ALJ in the initial decision and the January 10, 1986 Ruling on Respondent's motion to dismiss. In ¶30, Respondent alleges that adoption of the initial decision would violate its right to due process and equal protection in that liability would be based upon violations allegedly occurring more than two years prior to the Respondent receiving notice. Respondent, however, provides no basis for this claim. Without the benefit of any supporting argument, I am left to speculate as to why Respondent considers an alleged two years between the violation and EPA's issuance of the NON a denial of due process and equal protection of the law. Respondent's bare objection simply does not warrant any extended discussion. 4 That an appellate administrative tribunal may adopt the findings, conclusions, and rationale of a subordinate tribunal without extensive restatement is well-settled. United States v. Orr, 474 F.2d 1365 (2d Cir. 1973); Carolina Freight Carrier Corporation v. United States, 323 F. Supp. 1290 (W.D.N.C. 1971); In re Chemical Waste Management, Inc., RCRA (3008) Appeal No. 84-8, Order Adopting the Presiding Officer's Initial Decision as Final Agency Action (September 5, 1984); In re Electric Service Company, TSCA Appeal No. 82-4, Final Decision (January 7, 1985); and cases cited in Ciba Geigy v. Farmland Industries, FIFRA Comp. Dkt. Nos. 33, 34 and 42 (Op. of the Judicial Officer, April 30, 1981). Respondent nevertheless fails to articulate the grounds for sustaining the objections. EPA's rules governing the procedures for section 120 proceedings require that supporting argument accompany appeals of initial decisions to the Administrator. 40 CFR Part 66, Subpart J (Supplemental Rules for Formal Adjudicatory Hearings), and 40 CFR Part 22 (Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties). Section 22.30(a) provides that a party may appeal the ALJ's initial decision to the Administrator by filing a notice of appeal and appellate brief and that the brief “shall contain a statement of issues presented for review, a statement of the nature of the case and the facts relevant to the issues presented for review, argument on the issues presented, and a short conclusion stating the precise relief sought, together with appropriate references to the record." As proponent of the appeal, Respondent did not meet this burden of explanation. Respondent's appeal presents 35 objections to the ALJ's decision but fails to include any reasons whatsoever in support of any objection. Even if the rules did not require Respondent to submit a supporting appellate brief with its appeal, general principles of administrative law and the Agency's practice in appeals dictate that parties must provide supporting argument on the issues presented in an appeal together with references to the record. See, e.g., Intent to Suspend Registrations of Pesticide Products Containing Dibromochloropropane, 44 Fed. Reg. 65,161, 65,163 (Final Decision, Nov. 9, 1979); In the Matter of the City of Los Angeles Department of Public Works, NPDES Permit No. CA0109991, Order Denying Petition for Review (August 29, 1983). The record in this case includes a 500 page transcript, over twice that many exhibit pages, and numerous briefs. The reviewing official is not required to engage in a search of the entire record to determine what, if anything, supports Respondent's objections; it would be improper for the reviewing official to do so, for Respondent would have its argument constructed for it. Objections to initial decisions must be sufficient enough to inform the agency of one's position. Respondent cannot merely state that a particular finding or conclusion is erroneous; it must show why the conclusion is erroneous and the significance of the error in the result. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 (1977); Aitoo Painting Corp., 238 N.L.R.B. 51 (Sept. 26, 1978) (employer's "exceptions" to the adverse decision of an ALJ failed to meet the minimum standards to merit consideration on appeal to the N.L.R.B.). For the foregoing reasons, the appeal is dismissed and the initial decision is affirmed. So ordered. IN THE MATTER OF CHEM-SECURITY SYSTEMS, INC. RCRA Appeal No. 88-6 ORDER DENYING REVIEW Decided June 7, 1989 Before the Administrator, U.S. Environmental Protection Agency Opinion by William K. Reilly, Administrator: Chem-Security Systems, Inc. ("CSSI") has petitioned for review of a permit issued under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.A §§ 6901-6991i (1983 & West Supp. 1988), for its hazardous waste management facility near Arlington, Oregon. The permit was jointly issued by U.S. EPA Region X and the Oregon Department of Environmental Quality ("DEQ").1 Also before me is CSSI's related motion to reopen the administrative record to receive additional hydrogeologic data on the site. As requested by EPA's Chief Judicial Officer, Region X filed a response to CSSI's petition and motion dated June 30, 1988 ("Region Response"). CSSI then submitted replies dated August 11, 1988. Under the rules governing this proceeding, there is no appeal as of right from the Region's permit decision. Ordinarily, a RCRA permit will not be reviewed unless it is based on a clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. See 40 CFR § 124.19(a) (1988). The preamble to the regulations states that "this power of review should be only sparingly exercised," and that "most permit conditions should be finally determined at the Regional level *" 45 Fed. Reg. 33412 (May 19, 1980). The burden of demonstrating that review is warranted thus on the petitioner. 'The State of Oregon is authorized under RCRA § 3006(b) to administer portions of the RCRA program in lieu of the federal program. |