Pro-Tec Coating Company (Board decision, September 30, 1998)

Plain-English summary

The Sierra Club petitioned for review of permit provisions involving Pro-Tec Coating Company's facility. The Sierra Club and Pro-Tec entered a settlement agreement, under which Pro-Tec agreed to seek modification of specified permit provisions and operate the facility in accordance with the modified provisions it requested. The Board granted the Sierra Club's motion to withdraw the petition and dismissed the appeal. The Sierra Club could reinstate the appeal by October 15, 1998 if Pro-Tec failed to seek the agreed permit modification, but other noncompliance issues were not grounds for reinstatement before the Board.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19.
• Outcome: The appeal was dismissed, with a limited right of reinstatement for a specified settlement breach.
• Key point: A settlement-based dismissal can preserve a narrowly defined right to reinstate a permit appeal.

Full text (EPA EAB public release)

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

)
In re: )
)
Pro-Tec Coating Company
) PSD Appeal No. 98-25
)
)

ORDER DISMISSING APPEAL

By motion dated September 28, 1998, petitioner the Sierra

Club seeks to withdraw the petition for review in the above-

entitled matter pursuant to a settlement agreement executed by it

and by the permittee, Pro-Tec Coating Company. In its motion,

the Sierra Club specifically requests that the petition for

review be dismissed "without prejudice to the Sierra Club’s right

to re-file its Petition for Review, in the event that Pro-Tec

fails to meet the terms of the [settlement] agreement." In that

agreement (a copy of which the Sierra Club has submitted to the

Board), Pro-Tec undertakes to apply to the Ohio Environmental

Protection Agency for modification of certain specified permit

provisions within five days of the date of execution of the

agreement. Settlement Agreement ¶ 2. Pro-Tec also undertakes to

operate the permitted facility "only in accordance with" the

modified permit provisions that Pro-Tec has agreed to request

from the Ohio Environmental Protection Agency. Id. ¶ 3. Petitioner’s motion to withdraw the petition for review is

granted, and the appeal is hereby dismissed. The dismissal is

without prejudice to the Sierra Club’s ability to reinstate its

appeal on or before October 15, 1998, in the event of Pro-Tec’s

failure to comply with its obligations under paragraph 2 of the

Settlement Agreement.1 The dismissal is otherwise with

prejudice.

So ordered.

ENVIRONMENTAL APPEALS BOARD

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

Dated: 9/30/98

1
In contrast, it appears that any noncompliance by Pro-Tec with its obligations under paragraph 3 of the Settlement Agreement -- in which Pro-Tec "agrees to operate the * * * sources only in accordance with the terms of the modifications proposed in Attachment A and the remaining terms of the [permit] that will not be affected by the proposed modifications" -- would give rise only to enforcement and/or contractual issues that would not be reviewable by the Environmental Appeals Board pursuant to 40 C.F.R. § 124.19. Accordingly, nothing in this order shall be construed to suggest that the Sierra Club may reinstate its appeal based on alleged noncompliance by Pro-Tec with its obligations under paragraph 3 of the Settlement Agreement. CERTIFICATE OF SERVICE

I hereby certify that, on the date indicated below, copies of the foregoing Order Dismissing Appeal in the matter of Pro-Tec Coating Company, PSD Appeal No. 98-25, were sent to the following persons in the manner indicated:

By Facsimile and
Glenn Landers
First-Class Mail: Sierra Club
2460 Fairmont Blvd., Suite C
Cleveland Heights, OH 44106
Fax: 216-791-9138

Nidhi O’Meara
U.S. EPA, Region V
77 W. Jackson Blvd.
Chicago, IL 60604-3590
Fax: 312-886-0747

Susan E. Ashbrook
Environmental Enforcement Section
Ohio Attorney General’s Office
30 E. Broad St., 25th Floor
Columbus, OH 43215-3428
Fax: 614-644-1926

Thomas J. Grever
Squire, Sanders & Dempsey
41 S. High St.
Columbus, OH 43215
Fax: 614-365-2499

/s/
Annette Duncan
Secretary

Dated: 9/30/98