E.I. DuPont De Nemours and Company (Board decision, May 14, 2014)

Plain-English summary

EPA Region 2 issued a final RCRA corrective action permit modification for the DuPont Pompton Lakes Works facility. DuPont and the Passaic River Coalition separately petitioned the EAB to review that permit, and the Board stayed the appeals while the parties pursued settlement discussions. The Region later withdrew the permit modification in its entirety and said it would prepare a new draft for a new public notice and comment process. Because the withdrawal made the petitions moot, the Board granted the Region's motion and dismissed both appeals.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19 and 124.19(j), and 40 C.F.R. § 1.25(e)(1)
• Outcome: The Region's motion was granted, and RCRA Appeal Nos. 13-01 and 13-02 were dismissed.
• Key point: Withdrawal of the challenged permit modification made the petitions for review moot.

Full text (EPA EAB public release)

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

In re: )
)
E.I. DuPont De Nemours & Co. )
) RCRA Appeal Nos. 13-01 & 13-02
HSWA Permit Modification )
DuPont Pompton Lakes Works )
EPA ID No. NJD002173946 )
)

                             ORDER DISMISSING APPEALS

     On December 19, 2012, Region 2 ("Region") of the U.S. Environmental Protection Agency

("EPA") issued a final Resource Conservation and Recovery Act ("RCRA") Corrective Action

Permit Modification I ("Permit Modification") to E.I. DuPont De Nemours and Company

("DuPont") containing corrective action measures selected for specific areas of concern at DuPont's

Pompton Lakes Works facility. DuPont timely filed a petition for review of the Permit Modification

on January 31, 2013, and the Passaic River Coalition timely filed a petition for review on

February 1, 2013. The parties subsequently requested several stays of the matter in order to pursue

settlement discussions. The Board's most recent order stayed the appeals through April 30, 2014.

     On April 14, 2014, the Region notified the Board in a status report that settlement

discussions between DuPont and EPA had concluded unsuccessfully, and that there was no change

in the status of the Passaic River Coalition appeal. The Region indicated that it would file its

response to the consolidated appeals no later than April 30, 2014.

     On April 30, 2014, the Board received from the Region both a Notice of Withdrawal of the

Permit Modification and a Motion to Dismiss. The Director of the Region's Clean Air &

Sustainability Division sent a letter to the Board stating that the Region was formally withdrawing

the Permit Modification in its entirety pursuant to 40 C.F.R. § 124.19(j) (stating that at any time

prior to thirty days after filing its response to the petition(s) for review, the Region may, upon

notification to the Board and any interested parties, withdraw a permit). The letter explained that

the Region's withdrawal of the Permit Modification came "[a]fter consideration of all aspects of the

matter," and stated that the Region will prepare a new draft permit modification that will proceed

through the public notice and comment process set forth in 40 C.F.R. § 124.19. The Region notified

counsel for petitioners DuPont and Passaic River Coalition of its intent to withdraw the permit

modification.

   In its Motion to Dismiss, the Region avers that the withdrawal of the Permit Modification in

its entirety renders DuPont's and Passaic River Coalition's petitions for review moot.

   Upon consideration of the Region's motion and for good cause shown, the Board hereby

GRANTS the Region's motion and dismisses RCRA Appeal Nos. 13-01 and 13-02.

   So ordered.¹


                                                    ENVIRONMENTAL APPEALS BOARD


                                                    By:________________________
                                                                 Leslye M. Fraser
                                                          Environmental Appeals Judge


    ¹ The three-member panel deciding this matter is comprised of Environmental Appeals

Judges Leslye M. Fraser, Catherine R. McCabe, and Kathie A. Stein. See 40 C.F.R. § 1.25(e)(1).

                                              -2-


                            CERTIFICATE OF SERVICE

   I hereby certify that copies of the foregoing Order Dismissing Appeals in the matter of

E.I. DuPont De Nemours and Company, RCRA Appeal Nos. 13-01 & 13-02, were sent to the
following persons in the manner indicated:

By First Class U.S. Mail:

Stephen Rahaim
E.I. DuPont De Nemours and Company
DuPont Legal - Corporate Counsel
1007 Market Street, D-7099
Wilmington, DE 19898
Telephone: (302) 774-8720

Kathleen B. Campbell
Marc E. Gold
Andrew C. Silton
Manko, Gold, Katcher & Fox, LLP
401 City Avenue, Suite 500
Bala Cynwyd, PA 19004
Telephone: (484) 430-5700

Stuart J. Lieberman
Lieberman & Blecher
10 Jefferson Plaza, Suite 400
Princeton, New Jersey 08540
Telephone: (732) 355-1311

By EPA Pouch Mail:

Robert G. Hazen
Assistant Regional Counsel
U.S. Environmental Protection Agency, Region 2
290 Broadway, 16th Floor
New York, NY 10007-1866
Telephone: (212) 637-3215

Dated: MAY 14 2014
____
Annette Duncan
Secretary