Knauf Fiber Glass, GmbH
In re Knauf Fiber Glass, GmbH (EAB PSD Appeal Nos. 99-8 through 99-72): certain appeals dismissed
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This is citable Board precedent from 2000, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Knauf Fiber Glass, GmbH had a revised PSD permit for a proposed fiberglass manufacturing facility in California. The EAB received 65 petitions after the remand process and reviewed threshold challenges to timeliness and standing. The Board dismissed seven late petitions, two late supplemental letters, eighteen unnumbered form-letter petitions, and twenty-two petitions whose filers had not participated in the public review process and had not challenged changes between the draft and final permit. Other petitions, including those from three petitioners whose comments appeared in the agency record, were not dismissed by this order.
Decision snapshot
- Cited authorities: 40 C.F.R. §§ 124.19 and 124.20
- Outcome: Specified petitions were dismissed as untimely or for lack of standing.
- Key point: PSD petitioners must meet the regulatory filing deadline and participate in public review, unless their challenge is limited to changes between the draft and final permit.
Full text (EPA EAB public release)
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
)
In the Matter of: )
)
Knauf Fiber Glass, GmbH ) PSD Appeal Nos.
) 99-8 through 99-72
PSD Permit No. 97-PO-06 )
________)
ORDER DISMISSING CERTAIN APPEALS
ON TIMELINESS AND STANDING
On August 17, 1999, the Shasta County, California, Air Quality
Management District (“AQMD”) issued a revised permit decision to
Knauf Fiber Glass, GmbH (“Knauf”) under the federal Clean Air Act
prevention of significant deterioration (“PSD”) permit program. The
revised permit decision was prepared in response to the Environmental
Appeals Board’s remand order on the original PSD permit for the
proposed Knauf fiberglass manufacturing facility as issued by the
AQMD. In re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 98-3 through
98-20 (EAB, Feb. 4, 1999), 8 E.A.D. ___ (Order Denying Review in Part
and Remanding in Part).
Pursuant to the remand order, any party who participated in the
remand process was permitted to file a petition for review of the
AQMD’s revised permit decision. The Environmental Appeals Board
received 65 petitions for review. The petitions were filed with the
Board between September 3, 1999 and September 30, 1999. The AQMD was
asked provide responses to the petitions for review by November 9,
2
- In its responses, AQMD challenged several petitions on the
threshold regulatory requirements of timeliness and standing. By
order of the Board, all petitioners were provided an opportunity to
file a reply to AQMD’s responses. Notice to All Petitioners and
Order Granting Motions for Leave to File Reply Briefs (EAB, Nov. 16,
1999). Replies were received from some, but not all, of the
petitioners whose petitions were challenged on timeliness or standing
grounds.
We have reviewed AQMD’s responses, petitioners’ replies, and
other materials in the record in order to determine whether these
threshold regulatory requirements were satisfied by petitioners
seeking review of AQMD’s revised permit decision.1 We find that 7
petitions for review were not timely filed, 2 supplements to
petitions for review were not timely filed, 18 unnumbered form letter
petitions for review were not timely filed, and 22 petitions for
review have not satisfied the requirements for standing.
1In addition to timeliness and standing, the Board has also held
that petitions for review must meet a minimum standard of specificity
as a threshold requirement under the Part 124 regulations. In re
Envotech, L.P., 6 E.A.D. 260, 267 (EAB 1996) (dismissing petitions
for review based on lack of specificity). This order addresses only
the threshold issues of standing and timeliness. AQMD has also
challenged several petitions on the grounds of lack of specificity.
The Board will address this issue either in its final decision or by
separate order.
3
Timeliness
Under the regulations governing permit appeals, a petition for
review of a permit decision must be filed with the Environmental
Appeals Board within 30 days of service of notice of the final permit
decision by the permit issuing authority. 40 C.F.R. § 124.19(a).
When the final permit decision is served by mail, a petitioner has
three additional days in which to file a petition for review. 40
C.F.R. § 124.20(d). In this case, the AQMD issued its final revised
permit decision on August 17, 1999, and served the decision on August
18, 1999. Thus, the deadline for filing a petition for review with
the Board was September 20, 1999, 30 + 3 days later.
Documents such as petitions for review are considered filed on
the date they are received by the Board. Outboard Marine Corp., 6
E.A.D. 194, 196 (EAB 1995); In re Williams Pipe Line Co., CAA Appeal
No. 97-3 at 3 (EAB, Feb 28, 1997) (Order Denying Motion for
Reconsideration). Placing a document in the mail does not constitute
filing. In re Central Wayne Energy Recovery Limited Partnership, PSD
Appeal No. 98-1 (EAB, Feb. 28, 1998) (Order Dismissing Appeal). A
failure to ensure that a petition for review is received by the
Board, and therefore filed, by the filing deadline will generally
lead to a dismissal of the petition for review on timeliness grounds.
See In re Envotech, L.P., 6 E.A.D. 260, 266 (EAB 1996) (permit
appeals received after the filing deadline were dismissed as
4
untimely); In re Central Wayne Energy Recovery Limited Partnership at
5 (permit appeal that was mailed prior to the filing deadline but
received after the deadline was dismissed as untimely).
The following petitions for review in this matter were received
by the Board after September 20, 1999, and must be dismissed as
untimely:
Petition No. 99-25 (Radley Davis)
Petition No. 99-26 (Judy Sills)
Petition No. 99-27 (James Sills)
Petition No. 99-28 (April Frank)
Petition No. 99-31 (Dwight Bailey)
Petition No. 99-56 (Carolyn Singelmann)
Petition No. 99-70 (Laurie O’Connell and Ed Barger).
The Board also received late-filed supplements to Petition No.
99-17 (Arnold Erickson) and Petition No. 99-38 (Heidi Silva). While
the original petitions for review from these two petitioners were
timely filed, their supplemental letters were received after
September 20, 1999, and will not be considered.
In addition to the above mentioned petition numbers, the AQMD
challenged the timeliness of Petition No. 99-68 (Hans Ortlieb) and
Petition No. 99-70 (Joy Newcom). The Board’s records show that
Petition No. 99-70 was received on September 20, 1999, and was
therefore timely filed. Petition No. 99-68 was received on
5
September 27, 1999, beyond the filing deadline, but the petitioner
supplied materials in reply to AQMD’s timeliness challenge showing
that he sent his petition for review to the Board via Federal Express
on September 17, 1999. Normally, the person sending a document to
the Board must assume the consequences of a late delivery. See
Williams Pipe Line Co., CAA Appeal No. 97-3 at 3 (EAB, Feb. 27, 1997)
(Order Dismissing Appeal) (appeal filed by U.S. EPA Region VII
dismissed due to late delivery). However, in this case, AQMD
provided petitioners with incomplete information regarding where
petitions for review should be sent. In its notice of the final
revised permit decision, AQMD directed potential petitioners to send
petitions for review to EPA’s 401 M Street, S.W. address. This
address is correct for documents being sent through the U.S. Postal
Service, but it is not the proper address for documents being sent
via commercial delivery services such as Federal Express.
Consequently, receipt of Mr. Ortlieb’s petition for review was
delayed. In light of these circumstances, and because we received a
timely reply explaining the particulars of this situation, we will
treat Petition No. 99-68 as timely.
Finally, the Board also received a series of form-letter
“petitions for review” on November 29 and 30, 1999. Because these
petitions were filed so far past the filing deadline, the Board did
not assign individual petition numbers to the form letters, nor did
6
it request the AQMD to prepare responses to the letters. The Board
hereby dismisses the following form-letter petitions received from:2
Angie Adams, Redding, California
Monte Adams, Redding, California
LaDora L. Burnett, Redding, California
Dara Caraway, Shasta, California
Justin Caraway, Shasta, California
Vicki C. Caraway, Shasta, California
William Roy Caraway, Shasta, California
Doreen Hastings, Redding, California
Earl Hastings, Redding, California
Dave T. Jones, Redding, California
Ryan Keeran, Palo Cedro, California
Gracious A. Palmer, Shasta Lake City, California
Breezy Romero, Redding, California
Gilbert Romero, Redding, California
Kathy Romero, Redding, California
Marlene Romero, Redding, California
Jim Sills, Redding, California
Judy Sills, Redding, California
2Several of the late-filed form-letter petitions were received
from petitioners who had previously filed petitions for review and
received an assigned petition number. The dismissal on timeliness
grounds applies only to the unnumbered petitions for review that were
received in late November 1999.
7
Standing
As we explained in our decision on the previous permit appeals
in this matter, “[t]he regulations that govern appeals of permit
decisions require that petitioners have standing to appeal. In order
to achieve standing to appeal, a petitioner must have participated in
the public review process either by filing written comments or
participating in a public hearing. 40 C.F.R. § 124.19(a). If a
petitioner did not participate in the public review process, he or
she may only appeal issues pertaining to changes from the draft to
the final permit. Id.” In re Knauf Fiber Glass, GmbH, PSD Appeal
Nos. 98-3 through 98-20, slip op. at 68 (EAB, Feb. 4, 1999), 8 E.A.D.
___.
AQMD challenged the standing of 24 petitioners. Our review of
the administrative record materials indicates that the following 22
petitioners did not submit written comments or provide oral comments
at the public hearing. Furthermore, the petitions for review filed
by this group of petitioners do not address changes from the draft
permit to the final revised permit. Therefore, these petitions must
be dismissed for a lack of standing:
Petition No. 99-12 (Debra Kaut et al.)
Petition No. 99-39 (Suzanne Auteni-Tony)
Petition No. 99-40 (Rhonda Posey)
Petition No. 99-41 (Gloria A. Zeller)
8
Petition No. 99-42 (Jim Price)
Petition No. 99-43 (Judy B. Hansen)
Petition No. 99-44 (Barbara Condon)
Petition No. 99-45 (Elizabeth A. Ballou)
Petition No. 99-46 (Joseph and Lillian Hernandez)
Petition No. 99-47 (Bonnie Rule)
Petition No. 99-48 (Cindy Christie)
Petition No. 99-49 (Aracelia Briggs)
Petition No. 99-50 (Rebecca Christie)
Petition No. 99-51 (Becky Wilson)
Petition No. 99-52 (Ron Pearsall)
Petition No. 99-55 (James Melby)
Petition No. 99-60 (Bryan H. Jones)
Petition No. 99-61 (Orville and Juanita Vanderzanden)
Petition No. 99-62 (Doreen A. Melby)
Petition No. 99-64 (Jeffrey Brian Lewellyn)
Petition No. 99-65 (Barbara Jo Garner)
Petition No. 99-67 (Justin Jones)
Petitioner Debra Kaut concedes in her petition for review (99-
12) that she has no standing. Petition Nos. 99-39 through 99-52 are
more form-letter petitions; none of the petitioners filed a reply
contesting the standing issue. With the exception of Justin Jones,
none of the remaining petitioners listed above contested AQMD’s
9
standing challenge. Mr. Jones’s reply to the standing challenge
states that “attendance to the ’Public Comment Period’ was not
mandatory.” Reply No. 99-67. To the contrary, as explained above,
participation in the public comment phase of the permit process,
either by submitting written comments or providing oral comment at
the public hearing is mandatory if a person desires to file a
petition for review of the final permit decision. As Mr. Jones’s
petition did not address changes between the draft and final permits,
his failure to participate in the public comment period means that
his petition for review must be dismissed on standing grounds.
The AQMD also challenged the standing for Petition No. 99-19
(Earl Hastings) and Petition No. 99-24 (Stuart M. Oliver and Jonathan
McInteer). Although these petitioners did not contest AQMD’s
challenge to their standing, we found references to comments filed by
all three petitioners in the AQMD’s Response to Comments document
(Earl Hastings, p. 76; Stuart Oliver, p. 37; Jonathan McInteer p.
16). Therefore, these petitioners have satisfied the requirements
for standing, and their petitions for review are not dismissed.
Conclusion
As detailed above, the following petitions for review are
hereby dismissed and will not be specifically addressed in the
Board’s final decision on the merits of this appeal. Petition
10
Nos. 99-12, 99-17 (supplemental letter only), 99-25 through 99-28,
99-31, 99-38 (supplemental letter only), 99-39 through 99-52, 99-55,
99-56, 99-60 through 99-62, 99-64, 99-65, 99-67, 99-70 and the 18
unnumbered form-letter petitions received by the Board on November 29
and 30, 1999. The names of petitioners affected by today’s order
will be retained on a distribution list and will receive a copy of
the Board’s final decision.
So ordered.
ENVIRONMENTAL APPEALS BOARD
By: /s/
Ronald L. McCallum
Dated: 1/3/2000 Environmental Appeals Judge
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Order On Motions
for Reconsideration in the Matter of Knauf Fiber Glass, GmbH, PSD
Appeal Nos. 98-3 through 98-20, were sent to the following persons in
the manner indicated:
By First Class U.S. Mail: Robert Rollins (PSD 99-8)
2330 Walton Avenue
Shasta Lake City, CA 96019
Colleen Leavitt (PSD 99-9)
Post Office Box 5538
Shasta Lake, CA 96089
Mary C. Scott (PSD 99-10)
12982 Beltline Road
Redding, CA 96003
David Nigro (PSD 99-11)
4233 La Mesa Avenue
Shasta Lake, CA 96019
Paula Hetzler (PSD 99-11)
1820 Deer Creek Road
Shasta Lake, CA 96019
Debra Kaut (PSD 99-12)
1143 Dominion Drive
Redding, CA 96002
Betty and Fulton M. Doty
(PSD 99-13, PSD 99-57, and PSD 99-72)
6899 Riata Drive
Redding, CA 96002
Dorothy Kearsley (PSD 99-14)
434 Silkwood Drive
Redding, CA 96003
Walter May (PSD 99-15)
Post Office Box 5052
Shasta Lake City, CA 96089
12
Richard L. Harriman, Esq.
(PSD 99-16)
Law Offices of Richard L. Harriman
643 Flume Street
Chico, CA 95928
Arnold Erickson (PSD 99-17)
Post Office Box 239
Igo, CA 96047
Russ Wade (PSD 99-18)
1991 Hellar Lane
Redding, CA 96001
Earl and Doreen Hastings
(PSD 99-19 and PSD 99-20)
1047 Montclair Drive
Redding, CA 96003
Ivan Hall (99-21)
2575 Star Drive
Redding, CA 96001
Barbara Frisbie (PSD 99-22)
19400 Hill Street
Anderson, CA 96007
Stuart M. Oliver
(PSD 99-23 and 99-24)
2755 Russell Street
Redding, CA 96001
Jonathan McInteer (PSD 99-24)
19555 Tunnel Road #21
Redding, CA 96003
Radley Davis (PSD 99-25)
1150 Washington Avenue
Shasta Lake City, CA 96019
13
Judy and James Sills
(PSD 99-26 and 99-27)
21028 Scheer Drive
Redding, CA 96002
April L. Frank (PSD 99-28)
Post Office Box 5634
Shasta Lake, CA 96089
Warren L. Teel (PSD 99-29)
Post Office Box 5217
Summit City, CA 96089
Sharon Bellomo (PSD 99-30)
135 Robin Street
Red Bluff, CA 96080
Dwight M. Bailey (PSD 99-31)
13623 Creek Trail
Redding, CA 96003
William, Vicki, and Dana Caraway
(PSD 99-32, 99-33, and 99-34)
Post Office Box 740
Shasta, CA 96087
Joanna L. Caul (PSD 99-35)
4181 Johnson Street
Shasta Lake City, CA 96019-9656
Richard A. Sanford (PSD 99-35)
19344 Richsan Court
Redding, CA 96003-8759
Robert DiGiulio (PSD 99-36)
3294 Lake Redding Drive
Redding, CA 96003
14
B. Demar Hooper, Esq. (PSD 99-37)
Jesse J. Yang, Esq.
Taylor & Hooper
1435 River Park Drive, Suite 300
Sacramento, CA 95815
Heidi Silva (PSD 99-38)
Post Office Box 172
31521 Wildcat Ranch Road
Whitmore, CA 96096
Suzanne Auteni-Tony (PSD 99-39)
1009 Eugene
Shasta Lake, CA 96019
Rhonda Posey (PSD 99-40)
379 East 10th Avenue
Chico, CA 95928
Gloria A. Zeller (PSD 99-41)
Post Office Box 172
31521 Wildcat Ranch Road
Whitmore, CA 96096
Jim Price (PSD 99-42)
19092 Nathan Way
Redding, CA 96003
Judy B. Hansen (PSD 99-43)
13086 Moody Creek Drive
Redding, CA 96003
Barbara Condon (PSD 99-44)
Post Office Box 172
31521 Wildcat Ranch Road
Whitmore, CA 96096
Elizabeth A. Ballou (PSD 99-45)
628 Mussel Shoals
Shasta Lake, CA 96019
15
Joseph T. and Lillian M. Hernandez
(PSD 99-46)
12125 Lake Boulevard
Redding, CA 96003
Bonnie Rule (PSD 99-47)
1736 Locust Avenue
Shasta Lake, CA 96019
Cindy and Rebecca Christie
(PSD 99-48 and 99-50)
12242 Lake Boulevard
Redding, CA 96003
Aracelia Briggs (PSD 99-49)
12683 Williamson Road
Redding, CA 96003
Becky Wilson (PSD 99-51)
1319 Locust Street
Shasta Lake, CA 96019
Ron Pearsall (PSD 99-52)
Post Office Box 172
31521 Wildcat Ranch Road
Whitmore, CA 96096
George H. & Georgette V. McArthur
(PSD 99-53 and 99-54)
5869 Fairmont Drive
Redding, CA 96003-5426
James and Doreen A. Melby
(PSD 99-55 and PSD 99-62)
19606 Fish Hill Lane
Redding, CA 96003
Carolyn Singelmann (PSD 99-56)
Post Office Box 70891
Project City, CA 96079-0891
16
Nadine Stutsman (PSD 99-58)
4389 Eagle Nest
Redding, CA 96003
Patricia Cogburn (PSD 99-59)
4397 Eagle Nest
Redding, CA 96003
Bryan H. Jones (PSD 99-60)
13425 Lund Drive
Redding, CA 96003
Orville and Juanita Vanderzanden
(PSD 99-61)
388 Lemon Drive
Redding, CA 96003
Linda A. Andrews (PSD 99-63)
3443 Somerset Avenue
Redding, CA 96002
Jeffrey Brian Lewellyn (PSD 99-64)
14890 Wonderland Boulevard
Shasta Lake City, CA 96079
Barbara Jo Garner (PSD 99-65)
448 Silkwood Drive
Redding, CA 96003-4134
Jeffrey T. Curtin (PSD 99-66)
Senior Environmental Engineer
CertainTeed Corporation
17775 Avenue 23 ½
Chowchilla, CA 93610
Justin Jones (PSD 99-67)
12827 Newtown Road
Redding, CA 96003
Hans Ortlieb (PSD 99-68)
Post Office Box 5143
Shasta Lake City, CA 96089
17
Tillie Smith (PSD 99-69)
21037 Early Creek Lane
Redding, CA 96003
Laurie O'Connell and Ed Barger
(PSD 99-70)
2480 Star Drive
Redding, CA 96001
Joy Newcom (PSD 99-71)
3702 Fujiyama Way
Redding, CA 96001
Russell Mull, Director
Shasta County Department of Resource
Management
Air Quality Management District
1855 Placer Street, Suite 101
Redding, CA 96001
R. Clark Morrison, Esq.
Alicia Guerra, Esq.
Morrison & Foerster, L.L.P.
101 Ygnacio Valley Rd., Suite 450
Post Office Box 8130
Walnut Creek, CA 94596-8130
By Interoffice Mail: Gregory B. Foote
M. Lea Anderson
Office of General Counsel
U.S. EPA (MC 2344)
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
By Pouch Mail: Ann H. Lyons
Office of Regional Counsel
Region IX
U.S. EPA
75 Hawthorne Street
San Francisco, CA 94105
Date: 1/4/00 /s/
Annette Duncan
Secretary
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