Thomas Kelly and Jonathan Prisk (Board decision, September 11, 1998)

Plain-English summary

Thomas Kelly and Jonathan Prisk asked the Environmental Appeals Board to suspend implementation of a Regional Administrator's Decision and Order concerning whether a site was a wetland. The Board declined to suspend the order. It did not review the choice between the 1987 and 1989 Wetlands Delineation Manuals because the record contained uncontroverted testimony that the site was a wetland under both versions, making any error harmless. The order therefore remained in effect.

Decision snapshot

• Cited authorities: None listed in the official order.
• Outcome: The request to suspend implementation was denied.
• Key point: The Board declined interlocutory review where the alleged choice between guidance manuals could not affect the result.

Full text (EPA EAB public release)

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

______
)
In re: )
)
Thomas Kelly and Jonathan Prisk ) CWA Appeal No. 98-(8) )
)
Docket No. CWA-AO-028-94 )
________)

ORDER DECLINING TO SUSPEND IMPLEMENTATION OF THE DECISION AND ORDER OF THE REGIONAL ADMINISTRATOR

On August 10, 1998, the Decision and Order of the Regional

Administrator (the "Order") in the above-captioned matter was

served on counsel for the respondents Thomas Kelly and Jonathan

Prisk. Pursuant to the terms of the Order, the Environmental

Appeals Board as the Administrator’s delegate may on or before

September 15, 1998, suspend implementation of the Order. See

Order at 19 (referring to Section 28.29 of the proposed Non-APA

Consolidated Rules of Practice for Administrative Assessment of

Civil Penalties, 56 Fed. Reg. 29.997 (July 1, 1991), which serve

as guidance in this matter). The Board hereby declines to

suspend implementation of the Order. Although the Respondents

argued at the hearing and in their post-hearing brief that the

1987 version of the Wetlands Delineation Manual is the applicable

guidance manual for determining whether the site at issue in this
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case is a wetland, the Board will not undertake to review the

contrary determination made in the Order at page 8 that the 1989

version of the Wetlands Delineation Manual would be used as the

applicable guidance manual in this case, as any alleged error in

this determination is harmless given that the record contains

uncontroverted testimony that the site is a wetland under the

guidance of both the 1987 and 1989 versions of the Wetlands

Delineation Manual. See Tr. At 127-129.

So ordered.

ENVIRONMENTAL APPEALS BOARD

By: /s/
Ronald L. McCallum,
Environmental Appeals Judge

Dated: 9/11/98
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CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing ORDER DECLINING TO SUSPEND IMPLEMENTATION OF THE DECISION AND ORDER OF THE REGIONAL ADMINISTRATOR, in the matter of Thomas Kelly and Jonathan Prisk, CWA Appeal No. 98-(8), were sent to the following persons in the manner indicated:

Pouch Mail: Regina Kossek,
Presiding Officer
U.S. EPA, region 5
77 West Jackson Boulevard
Chicago, IL 60604

Jane Woolums,
U.S. EPA, Region 5
Office of Regional Counsel
77 West Jackson Boulevard
Chicago, IL 60604

Certified Mail,
Return Receipt Requested: Timothy P. Dwyer 50 Virginia Road
Crystal Lake, IL 60014

U.S. First Class Mail Richard A. Persson Exec. Vice President
B & J Manufacturing Company
P.O. Box 325
Glenwood, IL 60425
Personal

Kathleen and Patrick Wygans
2802 Rutledge
Janesville, WI 53545

Dated: 9/11/98
/s/
Annette Duncan
Secretary