Bryan K. Clark (Board decision, September 29, 2023)

Plain-English summary

Bryan K. Clark submitted a filing concerning a dispute with a contractor and seeking relief that included references to wages, fiduciary duties, pension statements, and CERCLA response costs. The filing did not identify an EPA permitting decision or other decision within the Board's jurisdiction. The Board also found that the filing did not identify a facility where a CERCLA response action had been implemented or show that a section 106(b) administrative order had been issued to Clark. The Board dismissed the matter for lack of jurisdiction.

Decision snapshot

• Cited authorities: CERCLA § 106(b), 42 U.S.C. § 9606(b), including § 9606(b)(2)(A)
• Outcome: The filing was dismissed for lack of jurisdiction.
• Key point: A CERCLA reimbursement filing must identify the qualifying administrative order and satisfy the statutory prerequisites before the EAB will reach the merits.

Full text (EPA EAB public release)

                                                                       F I L E D
                                                                           Sep 29, 2023
                                                                      Clerk, Environmental Appeals Board
                                                                      INITIALS ________________________
                 ENVIRONMENTAL APPEALS BOARD
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C.


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In re Bryan K. Clark ) CERCLA Appeal No. 23-01
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         ORDER DISMISSING FILING FOR LACK OF JURISDICTION

   On September 19, 2023, the Environmental Appeals Board (“Board”) received a

twenty-nine page document from Mr. Bryan K. Clark styled as a “Notice Motion on Appeal

Disposition of a Motion for CERCLA 42 U.S.C. 9604(e)(5)(B), 9606(b)(1) 9607(c)(3) Consent

Decree for Recovery of Past Response Costs” and a “Motion on Appeal Disposition of a Motion

for CERCLA 42 U.S.C. 9604(e)(5)(B), 9606(b)(1) 9607(c)(3) Consent Decree for Recovery of

Past Response Costs” (“Filing”). As an attachment, Mr. Clark submitted a copy of a

Reinsurance Agreement for a Bonds Statute Payment Bond.

   The Filing appears to concern a dispute between Mr. Clark and a contractor for whom he

states he worked as a project inspector. Among the allegations in the document are references to

“Theft or Embezzlement from employee benefit Plan,” “violations and withholding of amounts

for unpaid wages and liquidated damages,” “Breach of Fiduciary Duty,” and “misrepresentations

and false statements on Prevailing Wage Statements [and] Retirement/Pension fund statements.”

Filing at 1, 6, 9 & 13. Mr. Clark cites to numerous statutory and regulatory authorities, many of

them pertaining to governmental authorities other than the U.S. Environmental Protection

Agency. The document does not identify any permitting decision, or other decision or action, over which the Board has jurisdiction. For the reasons set forth more fully below, the Board

dismisses Mr. Clark’s filing for lack of jurisdiction.

   The Board is a tribunal of limited jurisdiction, and its authority is “limited by the statutes,

regulations, and delegations that authorize and provide standards for such review.” In re

Carlton, Inc., 9 E.A.D. 690, 692 (EAB 2001). The Board was established by regulation in 1992

and has jurisdiction to adjudicate matters that are consistent with the authority delegated to it by

the EPA Administrator. See 57 Fed. Reg. 5320, 5320-21 (Feb. 13, 1992) (detailing the Board’s

authority). Where a filing does not fall within the scope of the Board’s jurisdiction, the Board

will dismiss for lack of jurisdiction. See, e.g., In re Susan Shultz, CERCLA Appeal No. 22-01,

RCRA Appeal No. 22-01, CAA Appeal No. 22-04, at 4 (EAB Dec. 9, 2022) (Order Dismissing

Filing for Lack of Jurisdiction); In re Coastal Energy Corp., NPDES Appeal No. 17-04, at 3

(EAB Sept. 25, 2017) (Corrected Order Dismissing Petition for Lack of Jurisdiction and

Establishing Deadline).

   The Filing includes a seemingly random recitation of various state and federal

departments and agencies’ regulations and statutes. It is unclear what claims Mr. Clark is

making, but to the extent he is seeking payment of disputed wages and liquidated damages, the

Board lacks jurisdiction to adjudicate those claims. To the extent he is seeking reimbursement of

response costs allegedly incurred pursuant to an administrative order under section 106(b) of the

Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.

§ 9606(b) (“CERCLA”), he has not supported that claim and, in any event, has failed to satisfy

the statutory prerequisites for review.

.

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    CERCLA section 106(b) provides that “[a]ny person who receives and complies with the

terms of any order issued under [42 U.S.C. § 9606(a)] may, within 60 days after completion of

the required action, petition the President for reimbursement * * * for the reasonable costs of

such action, plus interest.” 42 U.S.C. § 9606(b)(2)(A). The Board has the authority to authorize

payments of such claims as appropriate and has issued a standing order that sets forth procedures

for filing section 106(b) petitions for reimbursement. Order on Procedures for Petitions for

Reimbursement Submitted Under Section 106(b)(2)(A) of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9606(b)(2)(A) (EAB July 7,

2020) (available at www.epa.gov/eab under “Standing Orders & Procedures” tab).

   The Filing neither identifies a facility at which a CERCLA response action was

implemented nor indicates that a section 106(b) administrative order requiring action was issued

to Mr. Clark. CERCLA expressly requires a showing that a party petitioning for reimbursement

received and complied with a section 106(b) order. See In re Am. Home Mortg. Serv., Inc.,

15 E.A.D. 342, 345 (EAB 2011) (denying reimbursement where petitioner did not receive an

order issued under CERCLA § 106(b)). Further, the Filing does not demonstrate that the four

statutory prerequisites for obtaining Board review of a CERCLA section 106(b) reimbursement

petition have been satisfied. 1 See 42 U.S.C. § 9606(b). The Board will not address the merits of

a CERCLA reimbursement petition unless the petitioner has demonstrated that the prerequisites

   1
     CERCLA section 106(b) establishes four prerequisites for obtaining review of a

reimbursement petition on the merits: (1) compliance with a section 106(a) administrative order; (2) completion of the action required by the administrative order; (3) timeliness of the petition; and (4) demonstration that response costs were incurred and an estimate of the total costs for which petitioner claims reimbursement. 42 U.S.C. § 9606(b).

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have been satisfied. See In re Glidden Co. & Sherwin-Williams Co., 10 E.A.D. 738, 739 (EAB

2002) (dismissing petitions for review as premature where petitioners failed to satisfy statutory

requirement that actions required by section 106(b) had been completed at time of petition).

   There is nothing in the Filing to support a CERCLA section 106(b) reimbursement claim,

or any other claim over which the Board has jurisdiction, and the Board does not have the

authority to grant any of the relief requested. See Susan Shultz, CERCLA Appeal No. 22-01, at

3-4; Coastal Energy, NPDES Appeal No. 17-04, at 3-4.

   For the reasons stated above, the Board dismisses this matter.

   So ordered. 2


                                                 ENVIRONMENTAL APPEALS BOARD

Dated: September 29, 2023 By: ________
Mary Kay Lynch
Environmental Appeals Judge

   2
    The three-member panel deciding this matter is composed of Environmental Appeals

Judges Wendy L. Blake, Mary Kay Lynch, and Kathie A. Stein.

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                           CERTIFICATE OF SERVICE

I certify that copies of the foregoing Order Dismissing Filing for Lack of Jurisdiction, CERCLA Appeal No. 23-01, were sent to the following persons in the manner indicated:

By Email:

Bryan K. Clark
150 4th Street Apt. 732
Oakland, CA 94607
[email protected]

Matt Anderson
[email protected]

Christine C. Fitzgerald
[email protected]

Lupe Mercado
[email protected]

Melinda Murrell
[email protected]

Teresa Herrera
[email protected]

Jorianne Jernberg
[email protected]

William Tanner
[email protected]

Dated: ____
Sep 29, 2023 ___

                                                Emilio Cortes
                                              Clerk of the Board