H.E.L.P.E.R., Inc.

Plain-English summary

H.E.L.P.E.R. operated an electrical-equipment reclamation and recycling facility in South Dakota and processed transformer and mineral oils that could contain PCBs. EPA alleged that the company failed to timely submit a material safety data sheet and hazardous chemical inventory form under EPCRA. The Environmental Appeals Board held that EPA had not shown that the facility had enough reportable hazardous chemicals, had not provided credible evidence that mineral oil mist existed or could be generated there, and had not shown potential employee exposure to that mist. The Board affirmed dismissal of the complaint and dismissed H.E.L.P.E.R.'s premature request for attorney fees without prejudice.

Decision snapshot

• Cited authorities: EPCRA §§ 311 and 312, 42 U.S.C. §§ 11021 and 11022; 5 U.S.C. § 504; 40 C.F.R. pt. 17.
• Outcome: The complaint dismissal was affirmed. The fee request was dismissed without prejudice as premature.
• Key point: EPCRA reporting liability requires evidence establishing both the applicable quantity threshold and the facts showing that the substance is a reportable hazardous chemical at the facility.

Full text (EPA EAB public release)

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                                  IN RE H.E.L.P.E.R., INC.
                                       EPCRA Appeal No. 98–3

                                          FINAL DECISION



                                        Decided June 21, 1999




                                                   Syllabus
               H.E.L.P.E.R., Inc. (“Helper”) operates an electrical equipment reclamation and recy-
         cling facility in Madison, South Dakota. The company recovers copper, steel, and brass
         from transformers that have reached the ends of their useful lives. Helper also processes
         mineral oils, such as transformer oil and mineral oil dielectric fluid, used in electrical
         equipment. These mineral oils contain varying concentrations of polychlorinated biphenyls
         (“PCBs”). In 1992, EPA Region VIII inspected Helper’s facility and determined that on
         October 15, 1992, Helper had approximately 8,000 gallons, or roughly 57,000 pounds, of
         PCB-contaminated mineral oil on-site.

               On May 25, 1995, Region VIII filed an administrative complaint charging Helper with
         two violations of the Emergency Planning and Community Right-to-Know Act (“EPCRA”),
         42 U.S.C. §§ 11001–11050. In Count I, the Region alleged that Helper failed to submit, in
         timely fashion, a material safety data sheet (“MSDS”) for PCBs handled at its facility, in vio-
         lation of EPCRA § 311, 42 U.S.C. § 11021. In Count II, the Region alleged that Helper failed
         to submit, in timely fashion, a hazardous chemical inventory form for PCB-contaminated
         liquids stored on-site on October 15, 1992, in violation of EPCRA § 312, 42 U.S.C. § 11022.

               After holding a hearing on this matter, Administrative Law Judge Andrew S. Pearlstein
         (“Presiding Officer”) held that Helper was not required to submit an MSDS or an invento-
         ry form because the company did not have sufficient quantities of “hazardous chemicals”
         on-site to trigger the reporting requirements cited in the complaint (i.e., 10,000 pounds).
         Accordingly, the Presiding Officer dismissed the complaint. Region VIII appealed, arguing
         primarily that the Presiding Officer erred as a matter of law in finding that the quantities of
         hazardous chemicals at Helper did not meet the 10,000-pound EPCRA reporting threshold.
         The Region contends that Helper had nearly 57,000 pounds of mineral oil at its facility on
         October 15, 1992, and that Helper’s mineral oil, separate and apart from its PCB content,
         qualifies as a reportable hazardous chemical on two separate grounds. First, the Region
         argues that mineral oil is a hazardous chemical because it is flammable. Second, the Region
         argues that mineral oil is a hazardous chemical because a “permissible exposure limit” and
         a “threshold limit value” (indicators of hazardousness in this context) have been assigned
         to mineral oil in its mist form, and because mineral oil mist may potentially be generated
         at Helper during normal working conditions or in foreseeable emergencies.

               Held: The Presiding Officer’s dismissal of this case is AFFIRMED. First, the
         Environmental Appeals Board finds that the Region’s shift in focus from PCBs, as pled in
         its complaint, to mineral oil, as argued before the Presiding Officer and in this appeal, is
         procedurally permissible. Helper presented evidence and testimony regarding mineral oil




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  at the hearing and did not claim that it was surprised or prejudiced in any way by the lit-
  igation of the issue. Accordingly, the Board will treat the complaint as amended to con-
  form to the evidence presented at the hearing.

        Second, the Board finds that Region VIII failed to establish the requisite elements of
  the alleged EPCRA violations and that its case must therefore fail. In particular, the Region
  did not present any credible evidence that mineral oil mist exists or even may exist at
  Helper’s facility. Moreover, the Region did not present any credible evidence that Helper’s
  employees could potentially be exposed to such mist. These elements of proof are neces-
  sary threshold components of the evidence required to establish the violations alleged in
  this case, and their absence is fatal. Furthermore, the Region’s flammability argument was
  not raised below and thus will not be considered on appeal. The Presiding Officer’s dis-
  missal is therefore affirmed.

     Before Environmental Appeals Judges Scott C. Fulton,
  Ronald L. McCallum, and Kathie A. Stein.
        Opinion of the Board by Judge Fulton:

       This appeal began with an administrative complaint charging
  H.E.L.P.E.R., Inc.1 (“Helper”) with the following violations of the
  Emergency Planning and Community Right-to-Know Act (“EPCRA” or
  “Act”), 42 U.S.C. §§ 11001–11050: (1) failing to timely submit a material
  safety data sheet (“MSDS”) for polychlorinated biphenyls (“PCBs”) con-
  tained in transformer oil and mineral oil dielectric fluid (“MODEF”) han-
  dled by Helper at its facility, in violation of EPCRA § 311, 42 U.S.C.
  § 11021; and (2) failing to timely submit a hazardous chemical inventory
  form for PCB-contaminated liquids, in violation of EPCRA § 312, 42 U.S.C.
  § 11022. While the complaint was never formally amended, U.S. EPA
  Region VIII’s (“the Region” or “Region VIII”) theory of the case subse-
  quently shifted away from PCBs in the face of information provided by
  Helper demonstrating that PCBs were not present at its facility in suffi-
  cient quantities to give rise to EPCRA regulation. Instead, the Region
  argued that Helper’s mineral oil (i.e., transformer oil or MODEF), sepa-
  rate and apart from its PCB content, is EPCRA-regulated and that Helper
  violated the MSDS and chemical inventory requirements with respect to
  mineral oil.

       After a hearing on this matter, Administrative Law Judge Andrew S.
  Pearlstein (“Presiding Officer”) held that Helper was not required to sub-
  mit an MSDS or an inventory form because the company did not have
  sufficient quantities of hazardous chemicals on-site to trigger the report-
  ing requirements cited in the complaint. Accordingly, the Presiding
  Officer dismissed the complaint. Region VIII appealed, arguing primarily

       1
        “H.E.L.P.E.R.” is an acronym for “Hazardous Electrical Line Power Equipment
  Removal.” Helper’s customers consist primarily of electrical cooperatives and utility compa-
  nies. Hearing Exhibit 11 [hereinafter Ex.].




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         that the Presiding Officer erred as a matter of law in finding that the quan-
         tities of hazardous chemicals at Helper’s facility did not meet the minimum
         threshold for EPCRA reporting. We conclude that the Region’s arguments,
         none of which spring naturally from the Region’s complaint and some of
         which are raised for the first time on appeal, are without force and there-
         fore affirm the Presiding Officer’s dismissal of the complaint.

                                           I. BACKGROUND

         A. Statutory and Regulatory Background

               Under EPCRA sections 311 and 312, the owner or operator of any
         facility required, under the Occupational Safety and Health Act (“OSH
         Act”)2 and accompanying regulations, to “prepare or have available” an
         MSDS for a “hazardous chemical” must submit that MSDS, as well as pre-
         pare and submit a hazardous chemical inventory form (“inventory form”),
         to each of the following:
                   (1) The appropriate local emergency planning committee
                   (“LEPC”);
                   (2) The state emergency response commission (“SERC”);
                   and
                   (3) The fire department with jurisdiction over the facility.3

         EPCRA §§ 311(a)(1), 312(a)(1), 42 U.S.C. §§ 11021(a)(1), 11022(a)(1).

              The OSH Act, upon which EPCRA draws heavily in delineating the
         scope of sections 311 and 312, speaks in terms of “employers,” “employ-
         ees,” and “manufacturers” (unlike EPCRA, which imposes requirements
         on “owners” and “operators”). An “employer” is, among other things, any
         corporation—such as Helper—that is “engaged in a business affecting
         commerce who has employees.” 29 U.S.C. § 652(5); see 29 C.F.R.
         § 1910.1200(c). The OSH Act mandates that each employer comply with


              29 U.S.C. §§ 651–671.
              2



              3
                In lieu of submitting the actual MSDS for each hazardous chemical on site, an owner
         or operator may submit a list of such chemicals. See EPCRA § 311(a)(1)–(2), 42 U.S.C.
         § 11021(a)(1)–(2). In terms of timing, initial MSDSs (or chemical lists) must be submitted no
         later than three months after an owner/operator becomes subject to the OSH Act require-
         ment to “prepare or have available” the MSDSs. Id. § 311(d), 42 U.S.C. § 11021(d); 40 C.F.R.
         § 370.21(c)(2). Inventory forms for each calendar year must be submitted on or before
         March 1 of the following calendar year. EPCRA § 312(a), 42 U.S.C. § 11022(a); 40 C.F.R.
         § 370.25(a)–(b).




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  occupational safety and health standards promulgated by the Secretary of
  Labor. See 29 U.S.C. §§ 654(a)(2), 655(a). The standards relevant in this
  context, collectively called the “Hazard Communication Standard”
  (“HCS”), 29 C.F.R. § 1910.1200, require employers to provide their
  employees with information and training on the hazardous chemicals
  they may be exposed to in the workplace. Id. § 1910.1200(b)(1). Among
  other things, each employer must develop and make available to its
  employees a written “hazard communication program” that includes a list
  of all the hazardous chemicals known to be present on the site. Id.
  § 1910.1200(e). Employers must also have an MSDS in the workplace for
  every hazardous chemical known to be present on-site. Id.
  § 1910.1200(g).

      The Occupational Safety and Health Administration (“OSHA”), which
  administers the HCS, recommends that employers first survey their work-
  places before compiling their lists of hazardous chemicals. According to
  OSHA:

             The broadest possible perspective should be taken when
             doing the survey. * * * The HCS covers chemicals in all
             physical forms—liquids, solids, gases, vapors, fumes, and
             mists—whether they are “contained” or not. The haz-
             ardous nature of the chemical and the potential for expo-
             sure are the factors [that] determine whether a chemical
             is covered. If it’s not hazardous, it’s not covered. If there
             is no potential for exposure (e.g., the chemical is inextri-
             cably bound and cannot be released), the rule does not
             cover the chemical.

  29 C.F.R. § 1910.1200 app. E.3.

       As is made clear in this provision, the reach of the HCS is limited in
  two ways: (1) by degree of hazard, and (2) by potential for exposure.
  First, the HCS applies only to chemicals that are “hazardous,” which
  means they constitute a “physical hazard” or a “health hazard.”4 29 C.F.R.


       4
        Chemical manufacturers are responsible for making “hazard determinations,” using
  detailed scientific definitions of the terms “physical hazard” and “health hazard,” to evalu-
  ate whether chemicals pose such risks. See 29 C.F.R. § 1910.1200(d)(1). For example, a
  “physical hazard” is defined under the HCS as:

        [A] chemical for which there is scientifically valid evidence that it is a combustible
        liquid, a compressed gas, explosive, flammable, an organic peroxide, an oxidizer,
        pyrophoric, unstable (reactive) or water-reactive.
                                             Continued



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         § 1910.1200(a)–(b); see id. § 1910.1200(c) (defining “hazardous chemi-
         cal”). Chemicals must be treated as hazardous if they are listed in either
         of two publications: (1) 29 C.F.R. part 1910, subpart Z, which designates
         “Permissible Exposure Limits” (“PELs”) for various substances; and (2)
         Threshold Limit Values for Chemical Substances and Physical Agents in
         the Work Environment, published by the American Conference of
         Governmental Industrial Hygienists (“ACGIH”), which designates safe
         levels for worker exposure to various chemicals, called “threshold limit
         values” (“TLVs”). Id. § 1910.1200(d)(3)(i)–(ii).

              Second, the HCS applies only to chemicals that are “known to be
         present in the workplace in such a manner that employees may be
         exposed under normal conditions of use or in a foreseeable emergency.”
         Id. § 1910.1200(b)(2). An employee is “exposed” if, in the course of
         employment, he or she is or potentially could be subjected5 to a chemi-
         cal that is a physical or health hazard. Id. § 1910.1200(c). A “foreseeable
         emergency” is “any potential occurrence such as, but not limited to,
         equipment failure, rupture of containers, or failure of control equipment
         [that] could result in an uncontrolled release of a hazardous chemical into
         the workplace.” Id. These provisions establish that if no potential exists
         for employees to be exposed to a particular chemical, then HCS obliga-
         tions will not attach on the basis of that chemical—even if the chemical
         is HCS-hazardous. See id. § 1910.1200(b)(2).




         Id. § 1910.1200(c). A “health hazard” is:

              [A] chemical for which there is statistically significant evidence based on at least
              one study conducted in accordance with established scientific principles that
              acute or chronic health effects may occur in exposed employees. The term “health
              hazard” includes chemicals [that] are carcinogens, toxic or highly toxic agents,
              reproductive toxins, irritants, corrosives, sensitizers, hepatotoxins, nephrotoxins,
              neurotoxins, agents [that] act on the hematopoietic system, and agents [that] dam-
              age the lungs, skin, eyes, or mucous membranes.

         Id. Employers may rely on these hazard determinations, which are presented along with
         other information in the MSDSs that manufacturers are obliged to send to purchasers of their
         products. See id. § 1910.1200(d)(1), (g)(6). However, if an employer chooses not to rely on
         a manufacturer’s hazard determination, that employer must perform its own hazard deter-
         mination. Id. § 1910.1200(d)(1). Fortunately for many employers and others, the HCS pro-
         vides a shorthand method of hazard evaluation as an alternative to the technical definitions
         of hazardousness. See subsequent discussion above of two publications setting forth “PELs”
         and “TLVs” for various chemicals.
              5
               “‘Subjected’ in terms of health hazards includes any route of entry (e.g., inhalation,
         ingestion, skin contact, or absorption).” 29 C.F.R. § 1910.1200(c).




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        Under EPCRA, if an owner or operator has less than 10,000 pounds
  of a hazardous chemical 6 at its facility, or less than 500 pounds of an
  “extremely hazardous substance,” 7 it need not comply with the section
  311 and 312 reporting requirements for that chemical.8 40 C.F.R.
  § 370.20(b)(1)–(2). These exemptions are designed to balance the pub-
  lic’s right to know about chemicals in the community with state and local
  governments’ ability to process large quantities of reported data and
  organize it in accessible fashion.9

      Finally, the reporting requirements for mixtures of chemicals are dif-
  ferent under EPCRA (and the OSH Act) than those for “pure” chemicals.10
  Owners/operators have the option of submitting MSDSs and inventory
  forms for each hazardous chemical component of a mixture, or they may
  submit MSDSs and inventory forms for the mixture as a whole. EPCRA
  §§ 311(a)(3), 312(a)(3), 42 U.S.C. §§ 11021(a)(3), 11022(a)(3); 40 C.F.R.
  § 370.28(a). If the former method is chosen, only those chemicals that




       6
         EPCRA contains no separate definition of “hazardous chemical” but rather adopts the
  HCS definition (with certain exceptions, none of which are relevant here). See EPCRA
  §§ 311(e), 312(c), 329(5), 42 U.S.C. §§ 11021(e), 11022(c), 11049(5).
        7
          Under the EPCRA regulations, an “extremely hazardous substance” is any substance
  “listed in the appendices to 40 CFR part 355, Emergency Planning and Notification.”
  40 C.F.R. § 370.2. None of the chemicals of concern in this case are “extremely hazardous
  substances” within the meaning of these rules. See 40 C.F.R. pt. 355 apps. A–B.
        8
          By contrast, neither the OSH Act nor the HCS establish minimum quantities of chem-
  icals that must be present in a workplace before HCS responsibilities are triggered.
        See, e.g., 55 Fed. Reg. 30,632, 30,635 (July 26, 1990) (“In establishing [the] final report-
        9

  ing threshold, EPA attempted to strike the best balance between the amount of informa-
  tion generated for the public and the value of that information, and the cost to SERCs,
  LEPCs, and facilities of managing and providing the information.”); 52 Fed. Reg. 38,344,
  38,351 (Oct. 15, 1987) (“EPA’s primary concern in establishing thresholds under sections
  311 and 312 is to prevent [s]tate and local governments from being so overwhelmed with
  submissions * * * that effective public access and government use of the information are
  not possible”).
        10
           Interestingly, neither EPCRA nor the EPCRA §§ 311/312 regulations define the term
  “mixture.” See EPCRA §§ 301–330, 42 U.S.C. §§ 11001–11050; 40 C.F.R. pt. 370. The HCS, how-
  ever, supplies a very precise definition, which is not surprising given OSHA’s recognition of
  the fact that many of the chemicals in the workplace today are mixtures, not “pure” chem-
  icals. See, e.g., 48 Fed. Reg. 53,280, 53,290 (Nov. 25, 1983) (“The determination of mixtures
  to be covered by the [HCS] is particularly critical since most chemicals produced and used
  in the manufacturing sector are mixtures, not ‘pure’ substances.”). Under the HCS, a “mix-
  ture” is “any combination of two or more chemicals if the combination is not, in whole or
  in part, the result of a chemical reaction.” 29 C.F.R. § 1910.1200(c); accord 40 C.F.R. § 372.3
  (EPCRA § 313 rules governing toxic chemical reporting).




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         comprise more than 1.0 percent by weight of the mixture (or more than
         0.1 percent by weight if carcinogenic) need be reported.11 40 C.F.R.
         § 370.28(b)(1).

         B. Factual Background

               1. Helper’s Operations

               Helper operates an electrical equipment reclamation and recycling
         facility in Madison, South Dakota. The company recovers copper, steel,
         and brass from transformers that have reached the ends of their useful
         lives. Helper also processes mineral oils used in electrical equipment,
         such as transformer oil and MODEF, which it receives either enclosed
         within the electronic equipment itself or separately in barrels. These oils
         contain varying concentrations of PCBs, which are highly toxic com-
         pounds whose fire resistance and chemical stability historically made
         them popular choices for use in electrical equipment.12

              To handle PCB-laden mineral oils in lawful fashion, Helper received
         authorization from EPA to operate as a commercial PCB storage facility
         under the Toxic Substances Control Act (“TSCA”). See TSCA § 6(e), 15
         U.S.C. § 2605(e); 40 C.F.R. § 761.65(d); Ex. 9. Helper prepared a Spill
         Prevention Control and Countermeasure Plan (“SPCC Plan”) for its facili-
         ty in 1989 or 1990 to fulfill one of the conditions of its PCB storage
         authorization. See Ex. 9 (SPCC Plan); 40 C.F.R. § 761.65(d)(2)(iv) (written
         closure plan is condition of PCB storage approval). Helper has EPA
         approval to store at its facility a maximum of 8,000 gallons of “PCB-con-
         taminated liquids” that contain between 50 and 499 parts per million
         (“ppm”) of PCBs. Hearing Transcript at 112 [hereinafter Tr.]; Exs. 6, 9.

               11
                 This provision is designed to be consistent with the HCS hazard determination regu-
         lation pertaining to mixtures, which provides in relevant part:

              If a mixture has not been tested as a whole to determine whether the mixture is
              a health hazard, the mixture shall be assumed to present the same health hazards
              as do the components [that] comprise one percent (by weight or volume) or
              greater of the mixture, except that the mixture shall be assumed to present a car-
              cinogenic hazard if it contains a component in concentrations of 0.1 percent or
              greater [that] is considered to be a carcinogen * * *.

         29 C.F.R. § 1910.1200(d)(5)(ii).
             12
               For example, PCBs have a high “flash point,” or temperature at which they will ignite.
         According to an MSDS prepared by Genium Publishing Corporation, the flash point of PCBs
         ranges from 284°F to 392°F. See Ex. 9. The presence of such chemicals in transformer oil or
         MODEF “reduces the likelihood of fire in the event of transformer rupture.” Yaffe Iron &
         Metal Co. v. EPA, 774 F.2d 1008, 1010 n.1 (10th Cir. 1985).




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             2. EPA Inspection of Helper

       In 1992, Region VIII conducted a routine TSCA inspection of Helper.
  The Region determined from materials gathered during the inspection
  that on October 15, 1992, Helper had approximately 8,000 gallons, or
  roughly 57,000 pounds,13 of PCB-contaminated liquids on-site.14 Assuming
  the liquids contained 499 ppm PCBs (the highest concentration author-
  ized under Helper’s TSCA permit), Helper had, at most, approximately
  30–31 pounds of actual PCBs on-site that day. See Ex. 15. The remainder
  of the PCB-contaminated liquids (approximately 56,970 pounds) consist-
  ed of mineral oil (i.e., transformer oil or MODEF).

             3. Helper’s Reporting Efforts

       In February 1993, Helper revised its SPCC Plan and included an
  MSDS for PCBs as an attachment to the Plan. Helper sent a copy of the
  revised Plan and attachment to the Lake County Emergency Management
  Agency, which is the LEPC covering the Madison area. Tr. at 135–37.
  Helper also sent copies to the Madison Fire Department, which is the fire
  department with jurisdiction over Helper’s facility, and to “the state”
  (which may have been someone in the South Dakota Department of
  Environment and Natural Resources rather than Lee Ann Smith, who is in
  charge of the South Dakota SERC—the record does not make this clear).
  See Tr. at 118, 121, 136–37, 180, 186–87, 194–95.

       On July 8, 1993, Michael Yocum, Helper’s environmental compliance
  manager, telephoned Ralph Houck of Region VIII. He apparently made
  the call because he had been informed by Ronald Hughes of the LEPC
  that EPA “wanted some records,” and Helper wanted to cooperate with
  EPA. Ex. 7. Mr. Houck asked Mr. Yocum whether he had ever submitted
  MSDSs to the SERC, LEPC, or fire department on Helper’s behalf. Mr.
  Yocum informed Mr. Houck that he had not, but that he had sent in
  Helper’s SPCC Plan. Mr. Yocum also apparently indicated that Helper had
  only 500 or so gallons of solvent on hand, and thus he did not think the
  company needed to file an MSDS. Id. After Mr. Yocum admitted that he


        The weight of the PCB-contaminated liquids (MODEF and transformer oil, both of
        13

  which are types of mineral oil, Tr. at 222) is calculated by factoring in the specific gravity
  of mineral oil (which is 0.85). Tr. at 89. One gallon of mineral oil weighs 7.1 pounds, so
  8,000 gallons of mineral oil weigh nearly 57,000 pounds. Id.
       14
         “PCB-contaminated liquid” is not itself a listed hazardous chemical for EPCRA report-
  ing purposes. As discussed in Part I.A above, it may nonetheless be EPCRA-regulated if its
  constituents are themselves listed chemicals that are present in the requisite concentrations.
  See 40 C.F.R. § 370.28(b)(1).




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         did not know what “Tier I” forms—a type of EPCRA inventory form—
         were, Mr. Houck explained the reporting requirements of sections 311
         and 312. Mr. Houck then agreed, at Mr. Yocum’s request, to send Helper
         samples of the inventory reporting forms. Id.

               Helper subsequently filed two hazardous chemical inventory forms
         with the South Dakota SERC on October 20, 1994. Tr. at 60; see Ex. 6. The
         forms, which covered calendar years 1992 and 1993, identified three haz-
         ardous chemicals—PCBs, copper, and “1–1–1 tri”—that Helper handled at
         its facility during those years. Ex. 6. Helper specified that “PCBs” were
         present at its facility in pure form, solid form, and liquid form. Helper did
         not check boxes that would have identified PCBs as being present in a
         mixture or in gaseous form or as being an “extremely hazardous sub-
         stance.” Helper reported that during both 1992 and 1993, it had 100,000
         pounds maximum of “PCBs” on-site per day and 60,000 pounds per day
         on average. See id. In fact, the quantities of “PCBs” Helper reported actu-
         ally referred to PCB-contaminated liquids it had at its facility in those time
         frames—an approach Helper later determined to have been mistaken. At
         a maximum permitted concentration of 499 ppm PCBs, these liquids were
         comprised of at least 99.95 percent mineral oil and at most 0.05 percent
         PCBs. See Tr. at 245 (Presiding Officer’s judicial notice of fact that 500
         ppm equals 0.05 percent).

         C. Procedural Background

             On May 25, 1995, Region VIII filed an administrative complaint
         charging Helper with two violations of EPCRA. In the introductory por-
         tion of the complaint, Region VIII alleged that PCBs are “hazardous
         chemicals” under EPCRA. Administrative Complaint ¶ 4 [hereinafter
         Complaint]. The Region then alleged in Count I that during calendar year
         1992, Helper had “PCB-contaminated liquids” at its facility in an amount
         greater than the EPCRA reporting threshold of 10,000 pounds. Id. ¶ 6.
         The Region contended that Helper had failed to submit an MSDS for
         “PCBs” (not “PCB-contaminated liquids”) on or before October 17, 1987
         (or three months after Helper first became subject to the OSH Act,
         whichever was later), in violation of EPCRA § 311, 42 U.S.C. § 11021. Id.
         ¶¶ 8–9. In Count II, the Region alleged that Helper had failed to submit,
         by March 1, 1993, a hazardous chemical inventory form for “PCB-con-
         taminated liquids” it had stored on-site in 1992, in violation of EPCRA
         § 312(a), 42 U.S.C. § 11022(a). Id. ¶¶ 11–12.

             Helper originally admitted that it had more than 10,000 pounds of
         “PCB-contaminated liquids” on-site in 1992, as alleged in Count I. Answer
         and Request for Hearing ¶ 6 (filed June 19, 1995). A year after filing its



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  answer (and five months before the scheduled hearing), however, Helper
  filed an amended answer, denying that it had more than 10,000 pounds
  of “PCB-contaminated liquids” on-site in 1992. Helper claimed that the
  original admission of this fact had been a typographical error that mis-
  stated its position.15 Respondent’s Motion to Amend Answer (filed Sept.
  4, 1996); see Amended Answer and Request for Hearing ¶ 6 (filed Sept.
  4, 1996) [hereinafter Amended Answer].

       In response to Helper’s changed position, Region VIII revised its
  own theory of the case. A week before the hearing, the Region obtained
  from OSHA an opinion letter that, according to EPA, established that min-
  eral oil and mixtures of mineral oil and PCBs were hazardous chemicals
  under the OSH Act. See Tr. at 24–25; Ex. 2. The Region proceeded to try
  the case before the Presiding Officer on the theory that (1) Helper’s PCB-
  contaminated liquids were comprised of mineral oil and PCBs, and (2)
  mineral oil itself is a hazardous chemical under the OSH Act and EPCRA
  because it carries the PEL and TLV for “mineral oil mist.”16 See, e.g.,
  Complainant’s Brief in Support of Proposed Findings of Fact and
  Conclusions of Law (Apr. 15, 1997) [hereinafter Complainant’s Brief].

       Helper objected to any evidence or argument concerning mineral oil
  or mist, claiming that such evidence or argument exceeded the scope of
  the allegations in the complaint. See, e.g., Tr. at 24, 33–34, 49–50. Helper
  nonetheless introduced its own evidence pertaining to this issue and
  called an expert witness who testified that mineral oil is not a hazardous
  chemical under the OSH Act. See Tr. at 139–42, 223–26, 232; Ex. 6.

       In dismissing the Region’s case on the ground that Helper did not
  have 10,000 pounds of a hazardous chemical on-site, the Presiding
  Officer noted that the complaint did not “mention mineral oil, transformer
  oil, or any other chemical besides PCBs. Under a narrow reading of the


       15
         As stated in Parts I.A and I.B.3 above, because Helper’s mineral oil was at most 0.05
  percent PCBs, Helper was entitled to look to the actual amount of PCBs in its mineral oil—
  30–31 pounds—rather than to the entire quantity of its mineral oil for purposes of deter-
  mining its EPCRA reporting obligations relative to PCB-contaminated liquids. See, e.g., 40
  C.F.R. § 370.28(a)(1), (b)(1).
       16
         “Mineral oil mist,” but not mineral oil per se, is identified in ACGIH’s publication as
  having a TLV of 5 milligrams per gram cubed (“mg/g3”) and thus is treated as a hazardous
  chemical. See Ex. 3. The TLV is expressed as a time-weighted average concentration for a
  normal eight-hour work day in a forty-hour work week of the type “to which nearly all
  workers may be repeatedly exposed, day after day, without adverse effect.” Ex. 16. Mineral
  oil mist—but again not mineral oil per se—is also listed in OSHA’s toxic and hazardous air
  contaminant tables as having a PEL of 5 mg/g3 averaged over an eight-hour work shift and
  a forty-hour work week. See 29 C.F.R. § 1910.1000(a)(2) & tbl. Z–1.




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         charges, the inquiry could end here.” Initial Decision at 6 [hereinafter Init.
         Dec.]. The Presiding Officer did not adopt the narrow reading he identi-
         fied, however. Instead, he reached the merits of the case, holding that
         mineral oil is not a hazardous chemical. The Presiding Officer stated:

                 [The ACGIH TLV] standard [of 5 mg/g3 for mineral oil
                 mist] has no relation to the conditions of mineral oil stor-
                 age at the HELPER facility, where no mist is generated. *
                 * * At HELPER, the mineral oil or transformer oil remains
                 in liquid form in enclosed tanks or containers at all times.
                 Even in the unlikely event of an accidental rupture, there
                 would not be the type of continued exposure contem-
                 plated by the ACGIH list of TLVs. The ACGIH’s listing
                 thus indicates that mineral oil can be considered haz-
                 ardous only as a mist, not as an enclosed liquid.

         Id. at 8. The Presiding Officer therefore concluded that Helper did not
         have at its facility sufficient quantities of any hazardous chemical or mix-
         ture of chemicals to trigger EPCRA reporting. Id.

               On appeal, Region VIII has again shifted its theory of the case, at
         least in part. The Region continues to argue that the mineral oil at
         Helper’s facility is a hazardous chemical because it carries a PEL and TLV
         in its mist form. The Region also, however, raises the wholly new and, in
         our view, ill-considered argument that mineral oil presents a physical
         hazard—and is thus a hazardous chemical—because it purportedly is a
         flammable liquid. Each of these contentions is addressed below.

                                       II. DISCUSSION

             The Board reviews the Presiding Officer’s factual and legal conclu-
         sions on a de novo basis. 40 C.F.R. § 22.31(a) (the Board shall “adopt,
         modify, or set aside” the Presiding Officer’s findings and conclusions).
         Matters in controversy must be established by a preponderance of the
         evidence. Id. § 22.24; see In re B.J. Carney Indus., Inc., 7 E.A.D. 171, 217
         (EAB 1997).

              We are presented at the outset with a procedural question: Should
         the Region be permitted to go forward with its mineral oil theory in view
         of the complaint’s sole focus on PCBs? In Part II.A below, we answer this
         question in the affirmative. In Part II.B, we turn to the merits and con-
         sider whether the Presiding Officer erred in finding that mineral oil is not
         a hazardous chemical under EPCRA.




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  A. Amending the Complaint to Conform to the Evidence

       At the hearing on January 28, 1998, Helper repeatedly objected to
  Region VIII’s introduction of evidence regarding mineral oil and mineral
  oil mist, claiming that the complaint charged the company with violations
  involving PCBs and PCB-contaminated liquids only, not mineral oil or
  mist. See, e.g., Tr. at 24, 33–34, 49–50. The Region concedes in its appel-
  late brief that it did not specifically plead mineral oil as a hazardous
  chemical. Appellant’s Brief in Support of Appellant’s Proposed Alternative
  Findings of Fact and Conclusions of Law or Discretion at 17 [hereinafter
  Appellant’s Brief].17 The Region also contends that its drafting of the com-
  plaint—in which it alleged only that PCBs are hazardous chemicals and
  that Helper failed to file an MSDS for PCBs (not PCB-contaminated liq-
  uids)—constituted harmless error. Id. at 16 n.18. According to the Region,
  Helper “knew exactly what the Region was referring to” when the Region
  alleged in the complaint that Helper had failed to file an MSDS for
  “PCBs.” As evidence of this, the Region points to Exhibit 6, the hazardous
  chemical inventory forms from 1992 and 1993, in which Helper used the
  term “PCBs” to refer to its PCB-contaminated liquids stored on-site. See
  id.; Ex. 6. We fail to understand, however, how the reference to PCB-con-
  taminated liquids is materially more informative in this respect than the
  term “PCBs.”18

      At bottom, we do not believe that the Region’s mineral oil theories,
  which it propounded only when faced with Helper’s denial of the EPCRA
  reporting threshold, can reasonably be found within the four corners of
  the complaint. Furthermore, this case carries the appearance of theories
  constructed late in the proceedings as a means of salvaging an enforce-
  ment case that, while perhaps originally justified, had been predicated on


       17
          Region VIII goes on to state that “in each of the counts, the Region specified that it
  was looking at each hazardous chemical at the facility that was a component of PCB-con-
  taminated liquids, which includes MODEF.” Appellant’s Brief at 17. If this statement were
  true, then we would think it likely that the Region would have alleged that Helper failed
  to submit an MSDS for mineral oil in addition to alleging that it had failed to submit one
  for PCBs.
       18
          The Region’s decision to focus its harmless error argument on PCB-contaminated
  liquids, rather than on mineral oil, strikes an odd note. Mineral oil, after all, has been at
  the center of the Region’s case ever since Helper amended its answer. The Region, how-
  ever, may have felt constrained to limit its harmless error argument to PCBs and PCB-con-
  taminated liquids because those were the only substances mentioned in the complaint:
  mineral oil, transformer oil, MODEF, and mineral oil mist garnered no mention there.
  See Complaint. The Region apparently did not feel similarly constrained in drafting the
  remainder of its appellate brief, which focuses for the most part on mineral oil and not
  PCB-contaminated liquids.




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         the mistaken factual assumption that Helper handled large, reportable
         quantities of PCBs.

              Despite our concerns, we will not dismiss this case on the ground
         that none of the arguments raised before us were pled in the complaint.
         Our point of departure on this issue is the Consolidated Rules of Practice,
         40 C.F.R. pt. 22. While the Consolidated Rules do not contain a provision
         explicitly authorizing amendment of pleadings to conform to the evi-
         dence, see 22 C.F.R. § 22.14(d),19 the rules have been interpreted as allow-
         ing such amendments. See, e.g., In re Wego Chem. & Mineral Corp.,
         4 E.A.D. 513, 523–25 (EAB 1993) (“party objecting to evidence on the
         ground that the material offered is not within the issues framed by the
         pleadings must meet a heavy burden”; showing of “serious disadvantage”
         or “surprise” necessary to sustain objection); In re Port of Oakland,
         4 E.A.D. 170, 204–06 (EAB 1992) (accord); In re Yaffe Iron & Metal Co.,
         1 E.A.D. 719, 722 (JO 1982) (“when pleadings vary from the issues actu-
         ally litigated, the pleadings may be amended to conform to the proof so
         long as there is no undue surprise”), aff’d & remanded on other grounds,
         774 F.2d 1008 (10th Cir. 1985). Moreover, administrative law judges have
         considerable discretion on matters such as these. See, e.g., In re Lazarus,
         Inc., 7 E.A.D. 318, 334 (EAB 1997) (part 22 rules “depend on the presid-
         ing officer to exercise discretion throughout an administrative penalty
         proceeding”).

              Our view is further informed by the case law that has developed
         under Rule 15(b) of the Federal Rules of Civil Procedure, recognizing that
         district courts have discretion to treat pleadings as conforming to the evi-
         dence presented at trial.20 See, e.g., Davis & Cox v. Summa Corp., 751 F.2d
         1507, 1522 (9th Cir. 1985); Karlen v. Ray E. Friedman & Co. Commodities,
         688 F.2d 1193, 1197 n.3 (8th Cir. 1982); Wasik v. Borg, 423 F.2d 44, 46 &
         n.1 (2d Cir. 1970). District courts may find pleadings to be implicitly

               This provision, entitled “Amendment of the complaint,” states:
              19



              The complainant may amend the complaint once as a matter of right at any time
              before the answer is filed. Otherwise the complainant may amend the complaint
              only upon motion granted by the Presiding Officer or Regional Administrator, as
              appropriate. Respondent shall have twenty (20) additional days from the date of
              service of the amended complaint to file his answer.

         40 C.F.R. § 22.14(d).
               20
                 While we are not bound by the Federal Rules of Civil Procedure, they are nonethe-
         less instructive in some circumstances. Rule 15(b) provides:

              When issues not raised by the pleadings are tried by express or implied consent
              of the parties, they shall be treated in all respects as if they had been raised in
                                                 Continued



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  amended even if a party objects to certain evidence as being outside the
  issues raised in those pleadings, provided the party fails to convince the
  court that admission of the evidence would prejudice its case. See, e.g.,
  In re Beaubouef, 966 F.2d 174, 176–77 (5th Cir. 1992) (after objection,
  party may not “simply remain silent and wait for reversal on appeal”;
  rather, party must demonstrate prejudice or request a continuance);
  Walton v. Jennings Community Hosp., Inc., 875 F.2d 1317, 1320 n.3 (7th
  Cir. 1989) (“pleadings may be amended over the objection of another
  party, unless the objecting party can show that the introduction of evi-
  dence pertinent to issues not introduced in the pleadings would in some
  way prejudice his or her case”); see also Lefever v. Commissioner, 100 F.3d
  778, 785–86 (10th Cir. 1996) (under Tax Court Rule 41(b), which “close-
  ly parallels” Rule 15(b), when a party “objects at trial that evidence is out-
  side the scope of the pleadings, amendment may still be allowed unless
  the objecting party satisfies the court that he or she will be prejudiced by
  the amendment. * * * The party opposing amendment will be found to
  have consented to the trial of an issue when that party presents evidence
  on the issue at trial.”). But see In re Santa Fe Downs, Inc., 611 F.2d 815,
  817 (10th Cir. 1980) (“‘Where evidence has been admitted over objection
  and the pleadings have not been amended, no amendment can be
  implied[,]’” even where no prejudice to objecting party has been shown)
  (quoting 3 Moore’s Federal Practice ¶ 15.13[2], at 15–177 (2d ed. 1979)).

        Here, the issue of whether mineral oil is a hazardous chemical was
  fairly litigated below (notwithstanding its late arrival in the case). The
  Region introduced its case by claiming the evidence would show that
  both PCBs and mineral oil, and any mixture of these substances, are haz-
  ardous chemicals under the HCS. Tr. at 7. The Region then offered


        the pleadings. Such amendment of the pleadings as may be necessary to cause
        them to conform to the evidence and to raise these issues may be made upon
        motion of any party at any time, even after judgment; but failure so to amend does
        not affect the result of the trial of these issues. If evidence is objected to at the
        trial on the ground that it is not within the issues made by the pleadings, the court
        may allow the pleadings to be amended and shall do so freely when the presen-
        tation of the merits of the action will be subserved thereby and the objecting party
        fails to satisfy the court that the admission of such evidence would prejudice the
        party in maintaining the party’s action or defense upon the merits. The court may
        grant a continuance to enable the objecting party to meet such evidence.

  Fed. R. Civ. P. 15(b). While this is a rule to guide district courts, appellate courts have relied
  upon it in appropriate cases as well. See, e.g., Dunn v. Trans World Airlines, Inc., 589 F.2d
  408, 412–13 (9th Cir. 1979) (pleadings may be amended to conform even at the appellate
  level); 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1494, at
  57 (2d ed. 1990) (“There is no inherent harm in using Rule 15(b) on appeal by way of anal-
  ogy as long as the trial court’s record clearly indicates that the issue on which the case is
  to be affirmed actually was tried with the knowing consent of the parties.”).




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         Exhibit 2, a letter from OSHA that it claimed showed OSHA considered
         mineral oil and mineral oil/PCB mixtures to be hazardous chemicals
         under the HCS. Tr. at 21–23; Ex. 2. Helper responded by introducing
         Exhibit 12, an MSDS for transformer oil prepared by Texaco, Inc.,21 and
         by calling an expert witness, Stephen P. Busch, to testify that mineral oil
         is not a hazardous chemical under the OSH Act. Tr. at 139–42, 223–26,
         232; Ex. 12. Helper did not claim that it was surprised by the Region’s
         decision to litigate the issue of whether mineral oil is a hazardous chem-
         ical, nor did it establish that it was prejudiced or disadvantaged in any
         way sufficient to cause the Presiding Officer to sustain its objection to the
         litigation of the issue. Instead, Helper prepared and presented a reason-
         able defense relative to mineral oil and mineral oil mist. Helper did not
         claim that, had it had proper notice that this issue would be litigated, it
         would have presented other evidence or made other arguments to but-
         tress its position that mineral oil is not a hazardous chemical. See, e.g.,
         Appellee’s Reply Brief. Accordingly, we will treat the complaint as implic-
         itly amended to conform to the evidence presented at the hearing. In
         other words, the allegations in the complaint pertaining to PCBs and
         PCB-contaminated liquids will be deemed to refer to mineral oil as well.
         We therefore proceed to a review of the merits of the Region’s mineral
         oil theories.22

         B. Mineral Oil’s Status Under the OSH Act and EPCRA

              Region VIII argues that the Presiding Officer erred as a matter of law
         in finding that the quantity of hazardous chemicals at Helper’s facility did
         not exceed the 10,000-pound EPCRA reporting threshold and thus did not




              21
                Unfortunately, Texaco’s MSDS is not a model of clarity in this regard. It states, in
         rather confusing fashion, the following regarding transformer oil:

              Product [i.e., transformer oil] is non-hazardous according to OSHA (1910.1200),
              but is considered hazardous according to Texaco’s internal criteria.
              # component [i.e., hydrotreated light naphthenic petroleum distillates, which com-
              prise 95.00 to 99.99 percent of the product], by definition, is considered hazardous
              according to OSHA because it carries the permissible exposure limit (PEL) for
              mineral oil mist.

         Ex. 12. The MSDS then lists the PEL (5 mg/g3), TLV (5 mg/g3), and short-term exposure limit
         (“STEL”) (10 mg/g3) for mineral oil mist. Id.
              22
                We would encourage Region VIII, and other parties similarly situated, to resolve pro-
         cedural issues of this sort in the future by filing with the Presiding Officer a motion pur-
         suant to 40 C.F.R. § 22.14(d) to conform the complaint to the evidence presented at the hear-
         ing.




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  warrant the filing of an MSDS and an inventory form pursuant to sections
  311 and 312. Appellant’s Brief at 14. The Region contends that Helper
  had nearly 57,000 pounds of mineral oil at its facility on October 15,
  1992, and that Helper’s mineral oil, which is not itself a listed hazardous
  chemical, qualifies as a hazardous chemical on two separate grounds.
  First, the Region argues that mineral oil must be considered a physical
  hazard because it is flammable and consequently qualifies as a hazardous
  chemical. Second, the Region argues that Helper’s mineral oil is a haz-
  ardous chemical because a PEL and a TLV have been assigned to miner-
  al oil in its mist form, and because mineral oil mist may potentially be
  generated at Helper during normal working conditions or in foreseeable
  emergencies. These arguments are addressed in turn below.

        1. Flammability

       According to the Region, the Presiding Officer erroneously found
  that mineral oil in its liquid state is not a hazardous chemical. Appellant’s
  Brief at 27. Under the HCS, any chemical that constitutes a “physical haz-
  ard” is deemed a hazardous chemical. 29 C.F.R. § 1910.1200(c). A “phys-
  ical hazard” is, among other things, any chemical “for which there is sci-
  entifically valid evidence that it is * * * flammable.” Id. The term “flam-
  mable,” in turn, is defined as any chemical that falls into one of several
  categories, including the following:

          Liquid, flammable means any liquid having a flashpoint
          below 100°F (37.8°C), except any mixture having com-
          ponents with flashpoints of 100°F (37.8°C) or higher, the
          total of which make up 99 percent or more of the total
          volume of the mixture.

  Id. As mentioned above, Helper’s PCB-contaminated liquids are a mix-
  ture of at least 99.95 percent mineral oil and at most 0.05 percent PCBs.
  See supra Part I.B.3. The Region uses this fact to contend that under the
  definition quoted above, mineral oil’s flash point of 295°F (as specified
  in the Texaco MSDS for mineral oil, see Ex. 12) qualifies Helper’s PCB-
  contaminated liquid mixture as flammable. Appellant’s Brief at 27–28.
  The Region concludes from this that Helper “was required to submit an
  MSDS and an inventory form for the PCB-contaminated liquids or
  MODEF.” Id. at 28.

      Importantly, Region VIII did not raise this “flammable liquid” argu-
  ment below. See Complainant’s Brief; Complainant’s Reply Brief. Under
  the Consolidated Rules of Practice, 40 C.F.R. § 22.30(a), parties may only
  appeal adverse rulings or orders; they may not appeal issues that were



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         not raised before the presiding officer. See, e.g., In re Lin, 5 E.A.D. 595,
         598 (EAB 1994); In re Genicom Corp., 4 E.A.D. 426, 439–40 (EAB 1992).
         As a result, arguments raised for the first time on appeal—such as this
         one—are deemed waived. See In re Woodcrest Mfg., Inc., 7 E.A.D. 757,
         764 (EAB 1998). The Presiding Officer cannot be faulted for failing to
         decide an issue that neither side had briefed.23

               2. Mist

             As explained in Part I.A above, the reach of the HCS, and thus the
         reach of EPCRA in this context, is limited by two separate factors: (1)
         degree of hazard, and (2) potential for exposure. To succeed on an
         EPCRA section 311 or 312 cause of action, a complainant would have to
         establish, among other things, both that a particular chemical is HCS-haz-
         ardous and that workers at the targeted facility could potentially be
         exposed to the chemical during the course of their work or in a foresee-
         able emergency. See 29 C.F.R. § 1910.1200(b)(1)–(2), (c), app. E.3.

              In this case, the Region argues that the Presiding Officer erred in
         finding that mineral oil does not occur in mist form at Helper but rather
         “‘remains in liquid form in enclosed tanks or containers at all times.’”
         Appellant’s Brief at 15 (quoting Init. Dec. at 8). According to the Region:




               23
                  We note that, in any event, the Region’s flammability argument appears to be based
         on a serious misreading of the HCS. The Region asserts that “[t]o be considered a ‘liquid
         flammable,’ the MODEF must constitute 99 percent of the mixture and have a flashpoint
         greater than 100 degrees Fahrenheit.” Appellant’s Brief at 27. Yet, the HCS defines “liquid,
         flammable” as any liquid with a flash point below 100°F, except (i.e., with the exclusion
         of) any liquid mixture made up of 99 percent or more of components that have flash points
         of 100°F or higher. 29 C.F.R. § 1910.1200(c). Inexplicably, the Region omitted the word
         “except” in quoting the liquid flammable definition to the Board. See Appellant’s Proposed
         Alternative Findings of Fact and Conclusions of Law or Discretion at 7 n.10, 11. The HCS
         definition, while perhaps not a model of clarity, appears to be intended generally to treat
         as “flammable” liquids with a low flashpoint and to exclude from coverage those liquid
         mixtures containing only small percentages of highly flammable components. See, e.g.,
         48 Fed. Reg. 53,280, 53,290 (Nov. 25, 1983) (mixture containing small concentration of ace-
         tone, a highly flammable liquid under most circumstances, may be tested and found not
         flammable, in which case manufacturer need not designate mixture as flammable on
         MSDS); 46 Fed. Reg. 4412, 4446 (Jan. 16, 1981) (Department of Labor’s original HCS pro-
         posal, which defined “flammable liquid” as any liquid with a flash point above 20°F and
         below 100°F, “except that this term does not include any liquid mixture having one or
         more components with a flash point at or above 100°F * * * [that] together make up 99 per-
         cent or more of its total volume”). The Region’s interpretation, which would treat as “flam-
         mable” liquid mixtures whose components have high flashpoints, would thus appear to
         turn the HCS on its head.




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             [M]ineral oil, in at least the mist form, is a hazardous
             chemical. The logical extension of the worker protection
             focus of the [OSH Act] leads to the conclusion that work-
             ers who handle mineral oil in any form must be provid-
             ed information regarding mineral oil if it is reasonably
             foreseeable that a spill could occur that would change
             the liquid mineral oil to mist, thereby exposing workers
             to the hazardous chemical, mineral oil mist.

  Appellant’s Brief at 21 (footnote omitted). The Region does not provide
  a citation to support this statement, but it appears to be a reference to
  the potential-for-exposure factor that is a condition of HCS coverage. See
  29 C.F.R. § 1910.1200(b)(2). The Region subsequently concludes that
  Helper’s employees could potentially be exposed to mist under normal
  conditions and in foreseeable emergencies, and that the Presiding Officer
  erred in finding otherwise. Appellant’s Brief at 20–26.

       Notably, the Region’s approach to this issue on appeal differs from
  the case it presented below to the Presiding Officer, in which it treated
  mineral oil and mist interchangeably, contending (at least implicitly) that
  both were hazardous chemicals because a TLV and PEL for mineral oil
  mist existed. See, e.g., Complainant’s Brief at 1–6; Complainant’s Reply
  Brief at 5, 10. On appeal, the Region carefully restricts its claim, arguing
  that Helper’s mineral oil is HCS-regulated solely by virtue of the poten-
  tial generation of mineral oil mist, and forgoing the argument that min-
  eral oil is itself hazardous per se.24 See Appellant’s Brief at 20–26.

       The Region’s problem, however, is its utter failure to construct a fac-
  tual predicate for either of two closely related propositions: (1) that min-
  eral oil mist, within the meaning of the applicable regulations,25 is in fact
  likely to be present at Helper’s facility; and (2) that Helper’s employees
  could potentially be exposed to such mist. These failures of proof are
  glaringly apparent when one examines the administrative record. There
  is virtually no evidence in the record on these issues, and the small


        Because, as explained below, we find a complete failure of proof on this issue, we
        24

  are not deciding whether the Region’s “potential generation” theory is necessarily the cor-
  rect articulation of the standard for regulatory coverage in cases like this one involving
  derivative hazardous chemicals.
       25
         The Region appears to believe that mineral oil “mist” can be formed merely through
  volatilization of mineral oil under ambient conditions. See, e.g., Appellant’s Brief at 21. Such
  is not the case, however. The ACGIH makes clear in its document explaining TLVs that min-
  eral oil “vapors” are not to be considered forms of mineral oil “mist.” See Ex. 16 (mineral oil
  mist at any particular facility must be “sampled by a method that does not collect vapor” to
  determine whether it falls within the TLV).




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         amount that is present was not adduced by the Region but rather
         appeared there almost serendipitously.

              The evidence relative to these questions can be summarized as fol-
         lows. First, Stephen Busch, a witness called by Helper’s counsel, testified
         on cross-examination that mineral oil mist consists of droplets of oil sus-
         pended in air. Tr. at 251–52. Mr. Busch also testified that, as a general
         proposition, mineral oil mist could be created if mineral oil being
         pumped under pressure through a hose or similar device were to escape
         through a small leak, or if a mechanical means of some type otherwise
         dispersed mineral oil into the air. Tr. at 252–53. However, according to
         Mr. Busch, Helper’s operations are not of the kind that would generate
         mineral oil mist. Tr. at 253. Second, the Presiding Officer took judicial
         notice of Exhibit 16, an excerpt from an ACGIH publication on TLVs that
         neither party offered at the hearing as evidence pertaining to these
         issues.26 That publication states:

                        Oil mist can arise in a variety of mineral oil applica-
                   tions. Important applications associated with potential
                   generation of oil mists are metal working, textile machin-
                   ery, rock drills, mist lubrication, agriculture sprays, con-
                   crete molds, corrosion preventives, printing inks, rubber
                   extenders, and food and pharmaceutical preparations.

                                         *   *      *    *    *       *   *

                       In practice, oil mists may be generated by several
                   routes, e.g., aeration, contact with a fast-moving surface,
                   or heating.

         Ex. 16.

             Notwithstanding the conclusory statements in its briefs, see, e.g.,
         Appellant’s Brief at 21–22, 25–26; Complainant’s Brief at 4; Complainant’s
         Reply Brief at 8, the Region did not offer below any evidence that any
         potential circumstance associated with Helper’s operations—including
         possible spill scenarios—might have been reasonably likely to generate
         mineral oil mist within the meaning of the OSH Act standard. The Region
         merely states:

              26
                The Region did in fact introduce Exhibit 8, a portion of the document the Presiding
         Officer noticed as Exhibit 16, during its redirect examination of Cheryl Turcotte, the EPCRA
         enforcement coordinator for Region VIII. Tr. at 98. That exhibit, however, was never
         received into evidence because the Region introduced it solely to establish that Ms. Turcotte
         had reviewed it and thus had some knowledge of mineral oil and mist. See Tr. at 98–100.




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  456                 ENVIRONMENTAL ADMINISTRATIVE DECISIONS



                  The trial record established that it is a routine prac-
             tice at HELPER to pump and drain mineral oil from trans-
             former cores onto metal rollers, all in direct proximity to
             HELPER’s workers. [Tr. at 254–55.] The [Presiding Officer]
             also found that HELPER opened the transformers and
             tested the PCB content and pumped the MODEF into
             tanks and trucks. [Init. Dec. at 3.]

  Appellant’s Brief at 21. Even if we were to accept that Helper pumped
  and drained mineral oil onto rollers and pumped MODEF into tanks and
  trucks, these “facts,” by themselves, do not establish the possibility that
  mineral oil mist could result from these operations. Indeed, there is no
  evidence in the record that pumping and draining might tend to aerate
  or heat mineral oil in such a way that mist might be formed. There is like-
  wise no evidence that pumping and draining might occur under sufficient
  pressure to suspend a liquid if a leak were to occur. There is not even
  any evidence regarding the susceptibility of Helper’s hoses or other min-
  eral oil transfer devices to leaks, or regarding any other mechanical
  means at the facility that could under certain conditions suspend miner-
  al oil in the air.

       Based on the sparse record before him, the Presiding Officer found,
  in essence, that the Region had failed to show that Helper’s operations
  had the potential to generate mineral oil mist. In view of the Region’s fail-
  ure to adduce at least some evidence on this point and the related point
  of potential exposure of employees to mineral oil mist, we do not dis-
  agree. Accordingly, we conclude that the Region has failed to establish
  the requisite elements of the alleged EPCRA violations.

                                     III. CONCLUSION

       For the foregoing reasons, we affirm the Presiding Officer’s dismissal
  of the Region’s complaint against Helper.27

         So ordered.



        In its reply brief, Helper requests reimbursement of the attorneys’ fees, expenses, and
        27

  costs it incurred in the course of defending this action. Appellee’s Reply Brief at
  15. As authority for its request, Helper cites the Equal Access to Justice Act (“EAJA”),
  5 U.S.C. § 504. See id. That statute allows “prevailing parties” in certain administrative pro-
  ceedings to recover attorneys’ fees and costs from the government. To obtain reimburse-
  ment, a party:
                                           Continued



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                                                H.E.L.P.E.R., INC.                                     457




              shall, within thirty days of a final disposition in the adversary adjudication, sub-
              mit to the agency an application [that] shows that the party is a prevailing party
              and is eligible to receive an award under this section, and the amount sought,
              including an itemized statement from any attorney, agent, or expert witness rep-
              resenting or appearing in behalf of the party stating the actual time expended and
              the rate at which fees and other expenses were computed. The party shall also
              allege that the position of the agency was not substantially justified.

         5 U.S.C. § 504(a)(2). The EPA regulations implementing this statute can be found at 40 C.F.R.
         pt. 17. See 40 C.F.R. pt. 17; see also In re Hoosier Spline Broach Corp., 7 E.A.D. 665, 679–682
         (EAB 1998) (discussing EAJA and part 17 rules).

              At the time Helper filed its reply brief containing the request, final judgment had not
         yet been entered in this case. Thus, the request was premature. See, e.g., J.M.T. Mach. Co.
         v. United States, 826 F.2d 1042, 1047 (Fed. Cir. 1987) (request in trial brief for attorneys’ fees
         is defective because party did not and indeed could not at that point allege that final judg-
         ment had been entered or that it was a prevailing party). Moreover, the form of the request
         did not satisfy explicit EAJA requirements. See 5 U.S.C. § 504(a)(2); 40 C.F.R. pt. 17; see also
         J.M.T. Mach., 826 F.2d at 1046–48. For these reasons, we dismiss Helper’s request for fees
         and costs without prejudice to its timely filing of a claim under the EAJA. See In re
         Woodcrest Mfg., Inc., 7 E.A.D. 757, 783 n.19 (EAB 1998).




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