Ray and Jeanette Veldhuis (Board decision, August 15, 2002)

Plain-English summary

Ray and Jeanette Veldhuis appealed an initial decision assessing an $87,930 civil penalty for Clean Water Act violations. They had already filed a motion to reopen the hearing with the ALJ, and that motion automatically stayed the time for the initial decision to become final and for an appeal to the EAB. The Board therefore held that the August 1, 2002 notice of appeal was premature and dismissed it without prejudice. The respondent could file a new notice within the renewed appeal period after the ALJ denied the motion to reopen.

Decision snapshot

• Cited authorities: 33 U.S.C. § 1311(a); 40 C.F.R. §§ 1.25(e)(1), 22.27(c), 22.28, and 22.30
• Outcome: The Board dismissed the prematurely filed notice of appeal without prejudice.
• Key point: A motion to reopen under 40 C.F.R. § 22.28 stays the time for an initial decision to become final and resets the appeal period when the motion is denied.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.

______
)
In re: )
)
Ray and Jeanette Veldhuis ) CWA Appeal No. 02-05 )
Docket No. CWA-9-99-0008 )
______)

ORDER DISMISSING NOTICE OF APPEAL WITHOUT PREJUDICE

On June 24, 2002, Administrative Law Judge Barbara A.

Gunning (“ALJ”) issued an Initial Decision in which she assessed

a civil penalty of $87,930 for violations of section 301(a) of

the Clean Water Act, 33 U.S.C. § 1311(a). See Initial Decision,

Docket No. CWA-9-99-0008 (ALJ, June 24, 2002). The Initial

Decision appears to rely on the Ninth Circuit decision in Borden

Ranch P’ship v. United States Army Corp’s of Eng’rs, 261 F.3dd

810 (9th Cir. 2001).

Pursuant to section 22.28 of the Consolidated Rules of

Practice Governing the Administrative Assessment of Civil

Penalties and the Revocation/Termination or Suspension of Permits

(“CROP”), 40 C.F.R. part 22, Respondent, Ray and Jeanette

Veldhuis, filed a Motion to Reopen Hearing with the ALJ under 40

C.F.R. § 22.28. See Motion to Reopen Hearing (filed July 19,

2002). Respondent argued that the Supreme Court’s decision to

grant certiorari in Borden Ranch provided a basis for granting its motion because two of the issues under review by the Supreme

Court are the same for the case at hand. Respondent’s motion

sought, in the alternative, a stay of the ALJ’s initial decision.

Id. at 2.

Pursuant to section 22.30 of the CROP, Respondent also filed

a Notice of Appeal with the Environmental Appeals Board (“EAB” or

“Board”) on August 1, 2002. See Notice of Appeal (filed Aug. 1,

2002).

On August 13, 2002, the ALJ denied Respondent’s motion and

request for a stay of the Initial Decision. See Order Denying

Motion to Reopen Hearing and Order Denying Motion for a Stay of the

Initial Decision (ALJ, Aug. 13, 2002). Respondent was served

by certified mail, return receipt.

DISCUSSION

Under the CROP, the filing of a motion to reopen a hearing

automatically stays the “running of the time periods for an

initial decision becoming final under § 22.27(c) and for appeal

under § 22.30.” 40 C.F.R. § 22.28(b). An order denying any such

motion begins anew the time for filing a notice of appeal with the

Board. 40 C.F.R. § 22.28(b) (providing that the time period

for appeal “shall begin again in full when the motion is denied

• • • .”).

                        2
      

      Accordingly, we find that because Respondent had filed a

motion to reopen the hearing under section 22.28, Respondent’s

Notice of Appeal was prematurely filed with the Board. The

motion before the ALJ automatically stayed the effect of her

Initial Decision and the time period for filing an appeal of the

Initial Decision with the Board. Thus, on August 1, 2002, there

was not an initial decision from which an appeal could be filed.

Because the ALJ’s Initial Decision was not perfected until she

ruled on Respondent’s motion on August 13, 2002, the Board hereby

dismisses Respondent’s Notice of Appeal prematurely filed on

August 1, 2002, without prejudice.

Respondent may file a notice of appeal within the renewed

time period for filing based on the ALJ’s August 13, 2002 Order.

So ordered.

ENVIRONMENTAL APPEALS BOARD1

Dated: 8/15/2002 By: /s/
Edward E. Reich
Environmental Appeals Judge

1
The three-member panel deciding this matter is comprised of Environmental Appeals Judges Scott C. Fulton, Edward E. Reich, and Kathie A. Stein. See 40 C.F.R. § 1.25(e)(1) (2001).

3
 CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Dismissing Notice of Appeal Without Prejudice, in the matter of Ray and Jeanette Veldhuis, CWA Appeal No. 02-05, were sent to the following persons in the manner indicated:

Via Pouch Mail:

Judge Barbara A. Gunning
Office of Administrative Law Judges
U.S. EPA
1200 Pennsylvania Ave., NW (MC 1900L)
Washington, DC 20460

Danielle E. Carr
Regional Hearing Clerk
U.S. EPA
75 Hawthorne Street
San Francisco, CA 94105

Elizabeth La Blanc, Esq.
Office of Regional Counsel (ORC-3)
U.S. EPA
75 Hawthorne Street
San Francisco, CA 94105

By Certified Mail,
Return Receipt Requested:

William E. Gnass, Esq.
Mason, Robbins, Gnass & Browning
P.O. Box 2067
Merced, CA 95344-0067

Date: 8/15/2002
_/s/____
Annette Duncan
Secretary