BWX Technologies, Inc.

Plain-English summary

BWX Technologies was accused of storing hazardous waste in an unpermitted surface impoundment called the Cold Pond at its nuclear-fuel-component facility in Virginia. BWX argued that enriched uranium continuously contaminated the pond, making the waste mixed radioactive waste outside RCRA jurisdiction, and sought dismissal or an evidentiary hearing. The Board held that BWX had the burden to prove that affirmative defense, affirmed denial of BWX's motion to dismiss, but reversed EPA's accelerated decision because the Presiding Officer's analysis was too abbreviated to show that summary-decision standards had been properly applied. The Board remanded for a new decision or, if disputed issues remained, an evidentiary hearing, while denying BWX's equitable-estoppel claim.

Decision snapshot

• Cited authorities: RCRA §§ 3004, 3005, 3006, and 3008; 42 U.S.C. §§ 6901, 6903, 6925, 6926, and 6928; 40 C.F.R. §§ 22.20, 22.24, 22.27, 261.22, 265.1, 270.10, and 270.13.
• Outcome: Denial of BWX's motion to dismiss was affirmed, EPA's accelerated decision was reversed, and the case was remanded.
• Key point: An accelerated decision must explain its material legal and factual conclusions clearly enough to permit review, especially when the parties dispute evidence supporting an affirmative defense.

Full text (EPA EAB public release)

                           BWX TECHNOLOGIES, INC.                                     61



            IN RE BWX TECHNOLOGIES, INC.
                     RCRA (3008) Appeal No. 97-5

                 DECISION AND REMAND ORDER



                           Decided April 5, 2000



                                     Syllabus

   BWX Technologies, Inc. is charged with violations arising under the Resource Con-

servation and Recovery Act (“RCRA”), as amended, 42 U.S.C. §§ 6901 et seq., and the
Virginia Hazardous Waste Regulations (“VHWR”), 9 VAC 20-10-10. The alleged viola-
tions relate to the storage of hazardous waste during a three-year period, from November
19, 1980, to September 30, 1983, in a storage unit known as the Cold Pond, which was
formerly part of BWX’s nuclear-fuel-component manufacturing facility, located near
Lynchburg, Virginia. BWX did not report the existence of the Cold Pond or otherwise seek
a permit for it at any time. BWX subsequently closed this storage unit, emptying it of its
contents. After a period of negotiations with the Complainant, Region III of the U.S. Envi-
ronmental Protection Agency (the “Region”), and state regulatory officials in Virginia,
BWX advised the two regulatory agencies that enriched uranium had inadvertently entered
the Cold Pond when it had been in operation, thereby creating a mixed radioactive and
hazardous waste and thus allegedly removing the resulting mixture from jurisdiction under
RCRA and the VHWR. BWX moved for dismissal of the complaint; the Region countered
with its own motion for accelerated decision.

   The Presiding Officer granted EPA’s motion and denied BWX’s. BWX appealed to

the Environmental Appeals Board. In its appeal, BWX asserts that there is “overwhelming
evidence” of the Cold Pond’s continuous contamination with enriched uranium during the
three-year period. According to BWX, this evidence:

  (1) requires dismissal of the Region’s complaint because the evidence rebuts
  the Region’s argument that the Cold Pond was not continuously contaminated
  with enriched uranium, thus defeating the Region’s prima facie case for
  RCRA liability; or alternatively

  (2) raises a “genuine issue of material fact,” barring an accelerated decision in
  the Region’s favor and requiring an evidentiary hearing on the matter.

   In addition, BWX contends that even if the Region prevails on its motion for an

accelerated decision, the Region should nevertheless be equitably estopped from enforcing
its complaint.

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62 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

   According to the Region, it is entitled to a ruling in its favor because, inter alia:

   (1) it had established, and BWX conceded, that the pickling acid solution in
   the Cold Pond was a hazardous waste regulated by RCRA;

   (2) BWX in defense could not show by a preponderance of the evidence that
   the Cold Pond was continuously contaminated with enriched uranium during
   the three-year period; and

   (3) even if the Cold Pond contained mixed radioactive and hazardous wastes,
   the hazardous waste in the Pond was nevertheless subject to RCRA and
   VHWR jurisdiction during this time period.

   As the Presiding Officer did in her decision, the Board accepted, for the sake of

argument in ruling on the parties’ motions, BWX’s contention that if the Cold Pond were
continuously contaminated with enriched uranium during the relevant period of operation,
it would fall outside RCRA jurisdiction and instead be subject to the exclusive jurisdiction
of the Nuclear Regulatory Commission.

 Held: The Presiding Officer’s decision is affirmed in part, reversed in part, and re-

manded for further proceedings.

    (1) The denial of BWX’s motion to dismiss is affirmed, since the motion is predi-

cated on the erroneous legal theory that the Region had the burden of proving that the Cold
Pond was not continuously contaminated with enriched uranium during the three-year pe-
riod. In actuality, the contamination issue was raised by BWX as an affirmative defense;
thus, it bore the burden of proving that the Cold Pond was continuously contaminated with
enriched uranium during that time period.

   (2) The granting of EPA’s motion for an accelerated decision is reversed. Due to the

relative brevity of the decision, its summary handling of dispositive legal conclusions, and
its overall lack of articulated analysis, it is unclear, inter alia, whether the Presiding Officer
adhered to fundamental summary judgment principles, whether circumstantial evidence
was properly factored into the decision, and whether there is any reasoned basis for certain
dispositive legal conclusions.

    (3) In response to BWX’s contention that it should have an opportunity to argue at

an evidentiary hearing that EPA is estopped from enforcing its complaint because the Re-
gion had earlier concurred in BWX’s conclusion that the Cold Pond was not subject to
regulation under RCRA, it is concluded that BWX, by failing to proffer specific facts
showing affirmative misconduct by the Region, has failed to raise a “genuine issue of mate-
rial fact” on its equitable estoppel claim against the Region, and is therefore not entitled to
an evidentiary hearing on the matter.

   (4) Upon remand, the Presiding Officer may either (i) issue a new decision granting

the Region’s motion for an accelerated decision, in whole or in part (after curing the noted
deficiencies), or (ii) in the event of a partial or complete denial of the motion, hold an
evidentiary hearing to resolve alleged disputed issues. Any decision issued at the end of the
proceedings on remand should include a detailed statement of findings and conclusions on
all material issues as well as supporting discussion and analysis of those findings and
conclusions.

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 BWX TECHNOLOGIES, INC. 63

Before Environmental Appeals Judges Ronald L. McCallum,

Edward E. Reich, and Scott C. Fulton.

   Opinion of the Board by Judge McCallum:


                                  I. INTRODUCTION

  Respondent BWX Technologies, Inc. (“BWX”)1 appeals from an initial de-

cision by Presiding Officer J. F. Greene (“Presiding Officer”), dated September
29, 1997, in which she denied BWX’s motion to dismiss and granted Complainant
U.S. Environmental Protection Agency Region III’s (the “Region”) motion for an
accelerated decision. The Presiding Officer concluded that BWX, as charged in an
administrative complaint filed by the Region, had violated certain provisions of
the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.
(“RCRA”), and the Virginia Hazardous Waste Regulations, 9 VAC 20-10-10 et
seq. (“VHWR”), both of which require owners and operators of hazardous waste
treatment, storage, and disposal facilities to submit applications for permits once
the facilities become subject to RCRA. According to the complaint, BWX was
required to, but did not, file a permit application for a hazardous waste surface
impoundment owned and operated by BWX, known as the “Cold Pond.”

   The alleged violations relate to the storage of waste materials in the Cold

Pond, from November 19, 1980, to September 30, 1983. The Region alleges that
the Cold Pond contained RCRA and VHWR-regulated waste during the above
period, while BWX contends that the Cold Pond’s waste also contained enriched
uranium, “a special nuclear material,” during the entire period, and as such consti-
tuted “mixed radioactive waste,” thus bringing the impoundment within the exclu-
sive jurisdiction of the Nuclear Regulatory Commission (“NRC”). In her initial
decision, the Presiding Officer held that BWX had failed to raise a genuine issue
of material fact on the Cold Pond’s contamination, and that BWX was therefore
liable under the relevant sections of RCRA and the VHWR.2

  In seeking review and reversal of the initial decision, BWX contends that its

motion to dismiss should have been granted because the Region failed to allege
that the Cold Pond was not continuously contaminated with enriched uranium

    1 Effective July 1, 1997, Respondent BWX acquired all of the assets and liabilities of the

original respondent in the proceeding, Babcock & Wilcox Company, Naval Nuclear Fuel Division.
Henceforth, we refer to both the current Respondent and its predecessor as “BWX.”

    2 This proceeding only concerns the issue of BWX’s liability under RCRA and VHWR, since

the parties, on October 17, 1997, stipulated to the terms of a consent agreement obligating BWX to
pay a $65,940 penalty and undertake numerous remedial measures in the event the company did not
prevail in its appeal.

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64 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

during the above time period and thereby failed to satisfy an essential element of
its prima facie case for the company’s RCRA liability. Alternatively, BWX con-
tends that the Presiding Officer should not have granted the Region’s motion for
an accelerated decision because the company has raised a genuine issue of mate-
rial fact on the Cold Pond’s contamination, thereby entitling it to an evidentiary
hearing on the matter.

  Moreover, BWX states that even if it cannot show that the Cold Pond was

continuously contaminated with enriched uranium, the Region should be equita-
bly estopped from bringing its complaint.

 For the reasons stated below, the initial decision is affirmed in part, re-

versed in part, and the case is remanded to the Presiding Officer for further
proceedings.

                             II. BACKGROUND

A. The Facility

  BWX owns and operates a facility at Mt. Athos, near Lynchburg, Virginia,

where it manufactures nuclear fuel components for the U.S. Navy’s nuclear-pow-
ered fleet. The facility, referred to as the Navy Nuclear Fuel Division (“NNFD”),
uses uranium enriched in the U-235 isotope (“enriched uranium”) and as such is
regulated by NRC License No. SNM-42. Affidavit of [David W. Zeff] in Support
of Respondent’s Motion to Dismiss (“Zeff Aff.”) ¶ 13. The facility consists of
separate “hot” and “cold” units, the former designating operations that involve con-
tact with enriched uranium and the latter designating those that are not intended
for contact with enriched uranium.

  As part of its “cold” manufacturing process, BWX “pickles” or cleans zirco-

nium alloy parts with a solution of nitric and hydrofluoric acid, generating a
“pickling acid solution” that requires neutralization in a treatment plant before dis-
charge. From 1973 to 1983, BWX stored excess pickling acid solution, waste-
water, and stormwater in the Cold Pond, which served as a temporary holding unit
whenever the capacity of two metal tanks was exceeded. In September 1983,
BWX suspended use of the Cold Pond and emptied its contents into the two metal
tanks, because the volume of wastewater had decreased to a level that could be
adequately contained by the tanks. From that point onward, the company ceased
using the Cold Pond. Appeal Brief at 3; Zeff Aff. ¶¶ 5-7.

  The “recycle water system” is one of the chief contributors of wastewater in

BWX’s operations. While the James River accounts for the largest share of re-
cycle water, a smaller share derives from rainwater that drains from the roofs of
several of the facility’s buildings. One of the NNFD units that supplies roof drain-

VOLUME 9
 BWX TECHNOLOGIES, INC. 65

age to the recycle water system is the uranium recovery building.3 This “hot” unit
recovers enriched uranium from scrap generated in various manufacturing
processes throughout the facility. A scrubber mounted on the roof of the uranium
recovery building captures enriched uranium emitted by the operation to reduce it
to levels approved by the NRC. BWX contends that rainwater on the roof became
contaminated with enriched uranium, infiltrated the recycle water system, and
eventually entered the Cold Pond, causing it to be contaminated as well and
thereby creating a “mixed radioactive waste” not subject to EPA’s or VHWR’s
enforcement jurisdiction.

B. The Alleged Violation and Subsequent Proceedings

   On July 14, 1980, BWX, prompted by the newly adopted regulations imple-

menting RCRA, submitted a Notification of Hazardous Waste Activity informing
the Region that some of its activities were subject to regulation under the Act and
its implementing regulations. In particular, BWX identified its pickling acid solu-
tion of nitric and hydrofluoric acid as corrosive, and therefore a characteristic haz-
ardous waste4 under 40 C.F.R. § 261.22. On October 20, 1980, pursuant to
40 C.F.R. § 265.1, BWX submitted its Part A application for interim status al-
lowing it to continue operating an existing hazardous waste treatment, storage or
disposal facility until it could obtain a permit.5 However, BWX’s Part A applica-
tion never identified the Cold Pond. On February 7, 1986, during the course of an
inspection of BWX’s facility, the Virginia Bureau of Hazardous Waste Manage-
ment (“Bureau”) discovered the Cold Pond, which by that time had already been
retired from service some two-and-a-half years earlier. Learning that the facility
had been operated to store the highly acidic zirconium pickling acid solution after
the effective date of the hazardous waste management regulations (November 19,

    3
      On September 1, 1990, BWX disconnected the uranium roof drainage from the recycle water

system after it identified the roof drainage as the most likely source of enriched uranium contamina-
tion of the recycle water system. Zeff Aff. ¶¶ 4, 9.

    4 Under RCRA, solid wastes fall into the hazardous category and are thus subject to the Subti-

tle C regulatory program by either being individually listed as hazardous (i.e., listed hazardous wastes)
or exhibiting a hazardous characteristic (i.e., characteristic hazardous wastes). See 40 C.F.R. Part 261.
The four characteristics that determine hazardous status are ignitability, corrosivity, reactivity, and
toxicity. See 40 C.F.R. §§ 261.3, 261.20.

     5 RCRA requires every owner and operator of a hazardous waste management facility to ob-

tain a permit. An existing hazardous waste management facility (i.e., one that was in existence on
November 19, 1980 or one that was in existence on the date of any statutory or regulatory change that
makes the facility subject to RCRA) need only notify EPA of its hazardous waste management activity
and file a Part A application to obtain interim status and continue operations. 40 C.F.R. §§ 270.10(e),
270.70(a). Part A is a short form containing certain basic information about the facility, such as the
facility name, location, nature of business, regulated activities, and topographic map of the facility site.
40 C.F.R. § 270.13. If all additional requirements and conditions are met, an interim status hazardous
waste management facility will be issued a site-specific permit in due course.

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66 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

1980), and that this activity did not qualify for a regulatory exemption, the Bureau
cited BWX for operating the facility without interim status or a permit.

   On April 10, 1987, after giving prior notice to the State of Virginia pursuant

to RCRA section 3008(a)(2), 42 U.S.C. § 6928(a)(2), the Region filed a 17-
count complaint against BWX, alleging violations of RCRA and the VHWR.6 The
Region’s complaint alleged that BWX had violated regulations implementing
RCRA found at 40 C.F.R. parts 260-270, as well as analogous regulations of Vir-
ginia’s hazardous waste management program.7,8 The complaint sought a
$191,118 penalty and closure of the facility in accordance with RCRA regula-
tions. In its answer, BWX admitted that it stored pickling acid waste in the Cold
Pond and had not obtained interim status for the unit’s operation. Answer ¶¶ 8, 10.

  Negotiations between the Region, BWX, and the State of Virginia ensued.

However, in June 1990, when the parties were about to sign a consent agreement
and decree, BWX advised the Region and the State of Virginia that, as a result of
a “comprehensive facility efficiency study” of the plant that it had conducted in
1989 and 1990, it had determined that the Cold Pond was contaminated with en-
riched uranium (U-235) from other parts of the plant during its entire period of
operation from November 19, 1980 (when the unit allegedly first became subject
to RCRA interim status requirements) to September 30, 1983 (when the unit
ceased operating). BWX’s findings were based initially on testing in 1989 and
1990 of radioactivity in sludge from its wastewater treatment plant. BWX then
informed the Region that the Cold Pond contained mixed radioactive and hazard-
ous waste rather than hazardous waste, and was thus exempt from RCRA regula-
tion and subject to the exclusive jurisdiction of the NRC, citing a 1988 Federal
Register notice that it claimed applied to the Cold Pond.

  In order to evaluate BWX’s claim of enriched uranium contamination, the

Agency dispatched an investigative team from EPA’s National Enforcement In-
vestigation Center (“NEIC”) to the facility. The NEIC investigated the facility on
October 17, 1990, and October 30, through November 1, 1990. The NEIC deter-

   6 BWX asserts that the Region’s complaint preempted negotiations between the company and

the Bureau that had led to a “tentative agreement” between the two parties providing for the “closure of
the Cold Pond without the assessment of a penalty.” Appeal Brief at 5. The Region disputes BWX’s
account, stating that BWX has “nothing on paper” to prove such an agreement was ever reached be-
tween the two parties, and noting that the Region commenced the action with the State of Virginia’s
concurrence. Region’s Reply at 15.
7 On December 4, 1984, the State of Virginia received authorization from EPA to administer a

hazardous waste management program in lieu of the federal program, pursuant to RCRA section
3006(b), 42 U.S.C. § 6926(b). See 49 Fed. Reg. 47,391 (Dec. 4, 1984).
8 The EPA may issue an order imposing a civil penalty or commence a civil action for a viola-

tion of a hazardous waste management requirement of an authorized state, see supra note 7, if the
Agency gives prior notice to the authorized state. See RCRA § 3008(a)(2), 42 U.S.C. § 6928(a)(2).

VOLUME 9
 BWX TECHNOLOGIES, INC. 67

mined that the information provided by BWX failed to support its claim that the
Cold Pond was contaminated with enriched uranium during its entire period of
operation from November 1980 to September 1983.

  On April 5, 1991, BWX filed a motion to dismiss the Region’s complaint,

invoking a 1986 EPA Federal Register notice as holding that authorized state pro-
grams, such as the VHWR, did not apply to “radioactive mixed wastes”9 during
the relevant time frame, and that mixed waste facilities in authorized states were
not subject to RCRA Subtitle C Regulations prior to July 3, 1986. See 51 Fed.
Reg. 24,504 (July 3, 1986). Thus, BWX contended that the VHWR and Subtitle C
Regulations had no application to the Cold Pond during its entire period of
operation.

  On May 22, 1991, the Region filed a response to BWX’s motion to dismiss

and, by motion, sought an accelerated decision on liability. Both parties attached
affidavits to their respective motions for dismissal and accelerated decision. BWX
and the Region followed with replies (containing supplemental affidavits) on June
21, 1991 (BWX), and July 24, 1991 (Region).

  In support of its motion for accelerated decision on BWX’s liability under

RCRA and the VHWR, the Region, inter alia, asserted that (1) it had established,
and BWX conceded, that the pickling acid solution in the Cold Pond was a haz-
ardous waste regulated by RCRA; (2) BWX in defense could not show by a pre-
ponderance of the evidence that the Cold Pond was continuously contaminated
with enriched uranium during its relevant period of operation from November 19,
1980, to September 30, 1983; and (3) even if the Cold Pond contained mixed
radioactive and hazardous wastes, the hazardous waste in the Pond was neverthe-
less subject to RCRA and VHWR jurisdiction during this time period.

  By an amended order and decision dated September 29, 1997, the Presiding

Officer denied BWX’s motion to dismiss and granted the Region’s motion for an
accelerated decision on liability. In reaching her decision, the Presiding Officer
only considered the first two of the Region’s three contentions, adopting for the
sake of argument BWX’s assertion that a showing of enriched uranium in the
Cold Pond would remove it from RCRA jurisdiction. The Presiding Officer ruled
that BWX had failed to establish that the presence of enriched uranium contami-
nation of the Cold Pond was a “material fact” and consequently dismissed BWX’s
motion and granted the Region’s cross-motion for an accelerated decision. In ad-
dition, the Presiding Officer stated that even if the Cold Pond were contaminated,
the contamination was de minimis and “did not rise to the level contemplated by

   9 In a 1988 Federal Register notice, the Agency defined “radioactive mixed waste” as “any

matrix containing a RCRA hazardous waste * * * and a radioactive waste subject to the Atomic
Energy Act * * * .” 53 Fed. Reg. 37,046 (Sept. 23, 1988).

                                                                                VOLUME 9

68 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

RCRA and regulations promulgated pursuant thereto.” Order Denying Motion to
Dismiss and Granting Motion for Accelerated Decision at 5-6. She also held that
allowing the “basically non-existent” amount of enriched uranium contamination
at issue, even if assumed to exist, to defeat RCRA jurisdiction would undermine
the purpose of “remedial statutes such as RCRA [which are] designed to protect
public health and the environment * * * [and] can not be lightly set aside or
found inapplicable on the basis of speculative inference alone.” Id.

  In its appeal filed November 11, 1997, BWX seeks reversal of the initial

decision, asserting that “overwhelming evidence” of the Cold Pond’s continuous
contamination from November 19, 1980, to September 30, 1983:

  (1) requires dismissal of the Region’s complaint because BWX’s evi-
  dence rebuts the Region’s argument that the Cold Pond was not con-
  tinuously contaminated with enriched uranium, thus defeating the Re-
  gion’s prima facie case for RCRA liability; or alternatively

  (2) raises a “genuine issue of material fact,” barring an accelerated
  decision in the Region’s favor and requiring an evidentiary hearing on
  the matter.

See Appeal Brief at 13, 17.

  In addition, BWX contends that even if the Region prevails on its motion

for an accelerated decision, the Region should nevertheless be equitably estopped
from enforcing its complaint. See Appeal Brief at 17 n.9.

                             III. DISCUSSION

A. The Presiding Officer’s Decision

   In reviewing the Presiding Officer’s decision on the parties’ cross-motions

to dismiss and for an accelerated decision, we are immediately struck by its rela-
tive brevity, the summary handling of dispositive legal conclusions, and the over-
all lack of articulated analysis. The deliberation that no doubt underlies the deci-
sion is, as a consequence, largely hidden from view. After reviewing the record
and the parties’ arguments we have not been able to bridge the void left by this
initial impression. More specifically, the decision is deficient in the following
general respects:

   (1) Due to the brevity of the analysis in the Presiding Officer’s decision

regarding the evidence and inferences, as well as the absence of detailed findings,
it is unclear whether the Presiding Officer adhered to fundamental summary judg-
ment principles. Thus, for example, we are uncertain whether the Presiding Of-

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 BWX TECHNOLOGIES, INC. 69

ficer strayed from simply determining whether disputed issues of fact existed or
whether she went on to decide any such disputes.10 Similarly, it is unclear whether
the Respondent, as the nonmoving party relative to the Region’s motion, was
given the benefit of any presumptions to which it was entitled, such as factual
allegations of the nonmoving party being taken as true for purposes of the motion.
A more structured and separate analysis of each party’s motion might have elimi-
nated any ambiguities in this respect.11

   (2) The decision appears to ignore the possibility of facts being proven by

circumstantial evidence. While the Presiding Officer is correct in pointing to the
absence of direct proof of the presence of enriched uranium in the Cold Pond
during the three-year period, evidence exists regarding the facility and its opera-
tions in the post-1983 era such that one might reasonably infer facts regarding the
facility and its operations during the 1980-1983 period, possibly including the
presence or absence of enriched uranium in the Cold Pond. Absent a detailed dis-
cussion by the Presiding Officer of that evidence, and of the parties’ inferences
drawn from that evidence, it is unclear to us whether any of the various inferences
propounded by Respondent respecting alleged contamination of the Cold Pond are
indeed unreasonable, as the Presiding Officer’s decision would otherwise have us
believe. Detailed findings respecting the evidence and the reasonableness of any
inferences drawn from the evidence would have aided our understanding of the
basis for the Presiding Officer’s decision.

   (3) The Presiding Officer’s legal conclusions respecting (i) “de minimis”

contamination as it relates to jurisdictional matters and (ii) disallowance of infer-
ences of fact if they would in some manner (unspecified) defeat the purposes of a
remedial statute, such as RCRA, are unsupported by any meaningful discussion or
reference to controlling authority. Further exposition of the basis for these dispos-
itive legal conclusions was needed before employing them as a basis for ruling on
the parties’ motions.

   10  We recognize that in some instances, as when a court rules on cross-motions for summary

determination at a bench trial, the facts may get fully developed, such that the court may proceed to
actually decide the factual issues if the record is clear that no remaining facts need to be developed.
10A Wright et al., Federal Practice & Procedure, § 2720 (1998); see also William W. Schwarzer et
al., A Monograph on Rule 56 of the Federal Rules of Civil Procedure, 139 F.R.D. 441, 474-76 (1992).
In the present instance, however, it is unclear whether there is a foundation for assuming the Presiding
Officer was proceeding in this manner when she ruled on the parties’ motions. The lack of clarity is
due in large measure to the brevity of the discussion of the evidence and associated inferences. Re-
spondent, as noted earlier, believes that a trial is appropriate, thereby suggesting that Respondent con-
templates presenting additional evidence. Further inquiry into the legitimacy of this suggestion might
be appropriate on remand.

    11 Cross-motions should be considered separately since each party, as a movant for summary

judgment, bears the burden of establishing that no genuine issue of material fact exists. 10A Wright et
al., Federal Practice & Procedure, § 2720 (1998).

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70 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

  Because of these general deficiencies in the Presiding Officer’s decision, we

are reversing the Presiding Officer’s decision in part and remanding the case for
further proceedings, albeit reluctantly given the passage of time this case has been
pending before the Agency.

  The remaining discussion concentrates mainly on our analysis of the parties’

respective burdens in proceedings for summary disposition of the case, with em-
phasis on the how those burdens relate to the specific issues raised by this case.

B. The Factual Issue

   The factual issue addressed in the parties’ motions concerns whether or not

the Cold Pond was continuously contaminated with enriched uranium during the
entirety of the three-year span of time specified in the complaint. BWX stored
various types of liquid waste matter in the Cold Pond for several years before
draining it of all of its contents and shutting it down. As charged in the complaint,
the relevant period of operation spans a three-year period from November 19,
1980 (when the Cold Pond first became subject to RCRA hazardous waste regula-
tions for treatment storage and disposal facilities)12 to September 30, 1983 (when
the Cold Pond was retired from service). The major point of contention between
the parties concerns the exact nature of the waste in the Pond. Was the waste
simply ordinary hazardous waste or was it a “mixed radioactive waste” that also
contained enriched uranium, a so-called “special nuclear material”? The more pro-
saic of the two types of waste is regulated by EPA, whereas the special version
invokes the jurisdiction of the NRC. According to BWX, the NRC has exclusive
jurisdiction over the Cold Pond’s waste whenever special waste is mixed with
ordinary hazardous waste, thus barring EPA from maintaining this enforcement
proceeding. The Region disagrees, arguing that EPA has jurisdiction over the fa-
cility regardless of the presence or absence of mixed radioactive waste.

   Because the waste in the Cold Pond was no longer in existence when the

Region filed the complaint against BWX in 1987, it was not possible for the par-
ties to resolve the factual issue by means of taking actual samples of the waste.
Instead, the parties have had to resort to various indirect means of establishing the
physical and chemical features of the Cold Pond’s contents during the relevant
three-year period of operation. This state of the evidence, in turn, has given rise to
a derivative point of contention between the parties, namely, who has the burden
of proving what was really in the Cold Pond and for what length of time? The
Region contends that it has proven a violation by establishing that the Cold Pond

    12 Pursuant to section 3005(e) of RCRA, 42 U.S.C. § 6925(e), on November 19, 1980, all

hazardous waste facilities then treating, storing, or disposing of hazardous waste became subject to
requirements to notify the Agency of their hazardous waste activities and submit a Part A application
to obtain interim status and continue operations. See supra note 5.

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 BWX TECHNOLOGIES, INC. 71

contained ordinary hazardous waste at any time throughout the relevant three-year
period of storage, whereas BWX argues that such proof alone is insufficient, for
the Region must also prove that the Cold Pond was not continuously contami-
nated with mixed radioactive waste during that time span. Each side presented
affidavits in support of its version of the facts. Significantly, in terms of narrow-
ing the issues, both agree that if at any time during the three-year period the Cold
Pond contained only ordinary hazardous waste, rather than the special waste con-
taminated with enriched uranium, then the Cold Pond is subject to EPA’s jurisdic-
tion under RCRA.13

 We turn briefly for context to the regulatory status of mixed radioactive

waste.

C. Regulatory Status of Mixed Radioactive Wastes

  The parties’ dispute over the alleged contamination of hazardous waste with

radioactive material arises from the regulatory status under RCRA of hazardous
wastes occurring in “radioactive mixed wastes” — wastes containing a mixture of
hazardous and radioactive wastes — and the Agency’s attempt to clarify this sta-
tus through publication of notices in 1986 and 1988. Taken alone, each compo-
nent of the mixture allegedly involved in this proceeding presents no problem of
jurisdiction: as BWX concedes in its pleadings, RCRA applies to the pickling acid
waste because this solid waste exhibits the characteristic of corrosivity as defined
at 40 C.F.R. § 261.22. Just as clearly, since RCRA, as a threshold matter, only
applies to “solid wastes,” the enriched uranium that BWX alleges contaminated
the Cold Pond is exempt from RCRA, since the statute excludes from the defini-
tion of solid waste “source, special nuclear, or byproduct material as defined by
the Atomic Energy Act of 1954, as amended.”14 RCRA § 1004(27),
42 U.S.C. § 6903(27).

  In order to resolve this regulatory ambiguity, the Agency issued a notice in

1986 announcing that states, in order to obtain and maintain authorization to ad-
minister and enforce a hazardous waste program pursuant to Subtitle C of RCRA,
would have to demonstrate the “authority” to regulate the hazardous component of
radioactive mixed wastes within one year of the publication of the notice. 51 Fed.
Reg. 24,504 (July 3, 1986). However, at this time, the Agency, citing the prevail-

    13 In U.S. v. Conservation Chem. Co. of Ill., 733 F. Supp. 1215 (N.D. Ind. 1989), invoked by

the Region to frame the pivotal question of this decision, the court found that a storage facility used to
store a characteristic hazardous waste was a “land disposal facility” subject to RCRA regulations on
permitting and closure even if its contents exhibited the hazardous characteristic on only one occasion.
Conservation Chem., 733 F. Supp. at 1225.

   14
      The Atomic Energy Act defines “special nuclear material,” in relevant part, as “plutonium,

uranium enriched in the isotope 233 or in the isotope 235 * * * .” 42 U.S.C. § 2014(aa).

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72 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

ing regulatory uncertainty about this waste type, took the position that currently
authorized State programs “[did] not apply to radioactive mixed waste.” Id. In a
clarification published two years later, the Agency stated that facilities “treating,
storing, or disposing of radioactive mixed waste but not other hazardous waste in
a State with base program authorization are not subject to RCRA regulation until
the State program is revised and authorized to issue RCRA permits for radioactive
mixed waste.” 53 Fed. Reg. 37,045, 37,047 (Sept. 23, 1988).

   Citing as support the 1986 and 1988 Agency notices, BWX contends that

the alleged radioactive mixed waste in the Cold Pond was not subject to the
VHWR (Virginia’s authorized RCRA program), since at the time of these notices,
the State had not yet received authorization to issue RCRA permits for this waste
type. As the Presiding Officer did in her initial decision, we will accept for the
sake of argument BWX’s contention that if the Cold Pond were continuously con-
taminated with enriched uranium during the relevant period of operation, it would
fall outside RCRA jurisdiction and instead be subject to the exclusive jurisdiction
of the NRC. Amended Order at 2. Although the Region apparently contends that
the hazardous waste in the Cold Pond remained subject to RCRA jurisdiction re-
gardless of mixture with enriched uranium, this question has not been fully
briefed on appeal. The Region asserts, “it is not necessary to reach [the issue]” for
purposes of deciding these motions. Region’s Reply at 10. The two parties thus
identify the alleged continuous contamination of the Cold Pond as the material
issue on which the outcome of their motions depends.

D. Parties’ Respective Burdens of Proof on Alleged Continuous
Contamination of Cold Pond with Enriched Uranium

   As a threshold matter, deciding which party bears the burden of persuasion

on the issue of continuous contamination of the Cold Pond at an evidentiary hear-
ing will clarify how we must evaluate the parties’ cross-motions and the Presiding
Officer’s ruling on those motions. From the outset, the burden question has been a
point of contention between the parties: BWX argues that the Region, as part of
its prima facie case, must demonstrate that it was more likely than not that the
Cold Pond was not continuously contaminated with enriched uranium and that the
Region’s failure to so demonstrate warrants dismissal of its complaint;15 in con-
trast, the Region maintains that it has no such obligation because the issue of
continuous contamination is a matter being raised by BWX as an affirmative de-
fense for which it should bear the burden of production and persuasion.

    15 The Consolidated Rules of Practice (“CROP”), 40 C.F.R. Part 22, as amended by 64 Fed.

Reg. 40,176 (July 23, 1999), provide in relevant part that “the Presiding Officer, upon motion of the
respondent, may at any time dismiss a proceeding without further hearing or upon such limited addi-
tional evidence as he requires, on the basis of failure to establish a prima facie case or other grounds
which show no right to relief on the part of the complainant.” 40 C.F.R. § 22.20.

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 BWX TECHNOLOGIES, INC. 73

   The Consolidated Rules of Practice (the “CROP”), 40 C.F.R. Part 22, as

amended by 64 Fed. Reg. 40176 (July 23, 1999), clearly assign the burdens of
production (or presentation) and persuasion to the Agency on its prima facie case.
The CROP also clearly imposes these same burdens on a Respondent as to any
affirmative defenses it may raise.16 Applied to the facts of this case, if the question
of the Cold Pond’s continuous contamination is part of the Region’s prima facie
case, then the Region must disprove the contamination by a preponderance of the
evidence; if on the other hand, it is an affirmative defense outside the parameters
of the Region’s prima facie case, then BWX must present its affirmative defense
and demonstrate continuous contamination by a preponderance of the evidence.

   BWX’s argument that the presence of radioactive material in the Cold Pond

defeats the RCRA jurisdiction that would otherwise clearly obtain is appropriately
viewed as extraneous to the government’s prima facie case. Since BWX is here
seeking an exception to RCRA’s wide ambit, BWX should reasonably bear the
burden of demonstrating that the Cold Pond’s hazardous waste was continuously
mixed with “special waste” and thus, according to BWX, was outside RCRA juris-
diction. See, e.g., U.S. v. First City Nat’l Bank of Houston, 386 U.S. 361, 366
(1967), which held that “[a] party that ‘claims the benefits of an exception to the
prohibition of a statute’ carries the burden of proving that it falls within the excep-
tion.” In In re Standard Scrap Metal Co., 3 E.A.D. 267 (CJO 1990), the Chief
Judicial Officer followed First City Nat’l Bank in ruling that a scrap metal com-
pany bore the burdens of production and persuasion to show that it disposed of
PCBs before a specific past date (and would thus escape liability under TSCA),
because the regulatory language that restricted the coverage of PCB disposal re-
quirements before that date operated as a statutory exemption to TSCA require-
ments for PCB disposal. Standard Scrap, 3 E.A.D. at 272.

  Accordingly, upon consideration of the foregoing, it is our conclusion that

the issue of continuous contamination is being raised by BWX as an affirmative
defense, and is not part of the Region’s prima facie case. Therefore, BWX should
have to demonstrate by a preponderance of the evidence that the Cold Pond was
continuously contaminated with enriched uranium during the relevant period of
operation.

    16 Section 22.24 of 40 Code of Federal Regulations states: “The complainant has the burdens

of presentation and persuasion that the violation occurred as set forth in the complaint and that the
relief sought is appropriate. Following complainant’s establishment of a prima facie case, respondent
shall have the burden of presenting any defense to the allegations set forth in the complaint and any
response or evidence with respect to the appropriate relief. The respondent has the burdens of presen-
tation and persuasion for any affirmative defenses.”

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74 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

E. The Parties’ Cross-Motions for an Accelerated Decision

  Both parties’ motions were supported by affidavits; therefore, the motions

may be characterized as cross-motions for an accelerated decision, analogous to
the practice prescribed by Rule 12(b) of the Federal Rules of Civil Procedure,
which states that “[i]f, on a motion * * * to dismiss for failure of the pleading to
state a claim upon which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for
summary judgment [as provided in Rule 56 of the Federal Rules] * * *.” In the
case of BWX, its motion to dismiss was transformed into a motion for an acceler-
ated decision, whereas the Region’s motion was denominated as such initially.

   1. Evidentiary Standard of Proof and Production for an
      Accelerated Decision

   As explained in the CROP:

   The Presiding Officer may at any time render an accelerated decision
   in favor of a party as to any or all parts of the proceeding, without
   further hearing or upon such limited additional evidence, such as affi-
   davits, as he may require, if no genuine issue of material fact exists
   and a party is entitled to judgment as a matter of law.

40 C.F.R. § 22.20, as amended by 64 Fed. Reg. 40,176 (July 23, 1999).

   The CROP language on accelerated decisions directly tracks that on sum-

mary judgment motions found in Rule 56 of the Federal Rules of Civil Proced-
ure,17 and though the Federal Rules do not apply to these proceedings, we have in
our previous rulings turned to Rule 56 and its copious jurisprudence for guidance.
See In re Clarksburg Casket Co., 8 E.A.D. 496, 501-02 (EAB 1999) (the standard
for granting an accelerated decision is “similar to the summary judgment standard
set forth in Rule 56”). See also In re Mayaguez Reg’l Sewage Treatment Plant,
4 E.A.D. 772, 781-82 (EAB 1993) (following Rule 56 to reject respondent’s re-
quest for evidentiary hearing on NPDES permit denial because respondent failed
to raise any genuine issues of material fact); In re Newell Recycling Co., 8 E.A.D
598, 613 n.14 (EAB 1999) (citing Rule 56 as guidance in rejecting respondent’s
request for evidentiary hearing on TSCA penalties).

     17 According to Rule 56 of the Federal Rules, a summary judgment shall be “rendered forth-

with if the pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”

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 BWX TECHNOLOGIES, INC. 75

  In analyzing Rule 56, the Supreme Court has explained that to defeat an

adversary’s motion for summary judgment, a party must demonstrate that an issue
is both “material” and “genuine.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1985). A factual dispute is material where, under the governing law, it might
affect the outcome of the proceeding. For purposes of the instant ruling, the dis-
pute at hand — whether the Cold Pond was continuously contaminated by en-
riched uranium — is the pivotal issue in the case and is thus clearly material.18
Thus, we need only address whether the issue raised is “genuine.”

   Whether an issue is “genuine” hinges on whether, in the estimation of a

court, a jury or other factfinder could reasonably find for the nonmoving party.19
If the evidence viewed in the light most favorable to the nonmoving party is such
that no reasonable decisionmaker could find for the nonmoving party, summary
judgment is appropriate. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970). Furthermore, the respective burdens of production of evidence that each
party must meet on a motion for summary judgment in order to avoid an adverse
decision implicate the substantive evidentiary standard of proof at trial or eviden-
tiary hearing:

   [I]n deciding whether a genuine factual issue exists, the judge must
   consider whether the quantum and quality of evidence is such that a
   finder of fact could reasonably find for the party producing that evi-
   dence under the applicable standard of proof.

Mayaguez, 4 E.A.D. at 781 (citing Anderson, 477 U.S. at 252). In a civil matter,
such as the case at hand, the standard of proof at trial is proof by a preponderance
of the evidence. See 40 C.F.R. § 22.24 (“Each matter of controversy [governed
by the CROP] shall be decided by the Presiding Officer upon a preponderance of
the evidence.”).

  Further, on summary judgment, neither party can meet its burden of produc-

tion by resting on mere allegations, assertions, or conclusions of evidence.
11 James W. Moore et al., Moore’s Federal Practice § 56.13[1], [2] (3d ed.
1999). As Rule 56(e) states:

   18 Should the Presiding Officer find on remand that the Cold Pond was continuously contami-

nated with enriched uranium during the relevant three-year period, it would be necessary for the Pre-
siding Officer to rule on whether the Region is correct in contending that the Cold Pond remained
subject to RCRA jurisdiction regardless of such contamination.
19 There is no jury in an administrative proceeding under 40 C.F.R. part 22. The fact-finding

function is performed by the administrative law judge in a manner akin to that of a district court judge
who performs the fact-finding function in a bench trial. This latter point is noteworthy because it may
be possible for the judge, in appropriate circumstances, to resolve disputed issues of fact on cross-
motions for summary judgment if it is clear that there is no further evidence to be developed. See
Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir. 1978). See supra note 10.

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76 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

  [A]n adverse party may not rest upon the mere allegations or denials
  of the adverse party’s pleading, but the adverse party’s response, by
  affidavits or as otherwise provided in this rule, must set forth specific
  facts showing that there is a genuine issue for trial. If the adverse
  party does not so respond, summary judgment, if appropriate, shall be
  entered against the adverse party.

  The movant assumes the initial burden of production on a claim, and must

make out a case for presumptive entitlement to summary judgment in his favor.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A] party seeking sum-
mary judgment always bears the initial responsibility of informing the district
court of the basis for its motion * * *.”). If the movant has the burden of persua-
sion at trial, the movant must present evidence that is so strong and persuasive
that no reasonable jury is free to disregard it, and that entitles the movant to a
judgment in his favor as a matter of law. See Edison v. Reliable Life Ins. Co.,
664 F.2d 1130, 1131; Nat’l State Bank v. Federal Reserve Bank, 979 F.2d 1579,
1582 (3rd Cir. 1990).

   In contrast, the summary judgment movant who does not carry the burden

of persuasion on an issue at trial has the lesser burden of “showing” or “pointing
out” to the reviewing tribunal that there is an absence of evidence in the record to
support the nonmoving party’s case on that issue and that the movant is entitled to
judgment in its favor as a matter of law. Celotex, 477 U.S. at 323-24 (1986). Once
this showing has been made, the burden of production shifts to the nonmovant
having the burden of persuasion. The nonmovant’s burden of production in these
circumstances is considerably more demanding than the movant’s with respect to
the issues upon which the nonmovant bears the burden of persuasion at trial. This
burden of production requires the nonmovant to identify specific facts (with or
without affidavits) from which a reasonable factfinder, applying the appropriate
evidentiary standard (i.e., a preponderance of the evidence here), could find in its
favor on each essential element of its claim. Anderson, 477 U.S. at 252.

   As a corollary of the foregoing, parties opposing summary judgment must

provide more than a scintilla of evidence on a disputed factual issue to show their
entitlement to a trial or evidentiary hearing: the evidence must be substantial and
probative in light of the appropriate evidentiary standard of the case. In consider-
ing whether a nonmovant has met this standard, courts are not supposed to engage
in the jury function of determining credibility or weighing facts; instead, courts
are to view the record in the case and submissions in the light most favorable to
the nonmovant (including the nonmovant who bears the burden of persuasion on
an issue), and are to believe all evidence offered by it. See Anderson, 477 U.S. at
255 (“evidence of nonmovant is to be believed and all justifiable inferences are to
be drawn in his favor”). However, this indulgent standard of review does not re-
quire courts to find a genuine dispute and deny summary judgment where evi-
dence is legally insufficient to support an essential element of a case or not signif-

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 BWX TECHNOLOGIES, INC. 77

icantly probative. See Anderson, 477 U.S. 242, 250 (stating that court may grant
summary judgment where nonmovant’s evidence is not significantly probative or
is “one-sided” in favor of movant); First Nat’l Bank of Arizona v. Cities Service
Co., 391 U.S. 253 (1968) (upholding summary judgment motion for defendant
because the antitrust plaintiff failed to support conspiracy allegation with “signifi-
cant probative evidence”).

   2. BWX’s Motion to Dismiss

   Notwithstanding BWX’s submission of affidavits in support of its motion,

the specific factual considerations raised by the BWX motion need not be ad-
dressed in assessing the merits of the motion, for the motion ultimately fails for a
more fundamental legal reason, namely, the motion is predicated on an erroneous
legal proposition.20 The company contends that the Region, as part of its prima
facie case, must establish that the Cold Pond was not continuously contaminated
with enriched uranium during the relevant period of operation.21 As demonstrated
earlier, however, the continuous contamination of the Cold Pond is a matter for
BWX to establish, since it is being raised by BWX as an affirmative defense. See
supra Section III.D. Because of BWX’s mistaken legal premise, we must dismiss
the company’s motion. See, e.g., In re Standard Scrap Co., 3 E.A.D. 267 (CJO
1990) (in TSCA proceeding, overturning Presiding Officer’s granting of motion to
dismiss based on finding that the issue of timing of improper disposal was an
affirmative defense, and thus not part of Agency’s prima facie case). Accordingly,
for the reason stated above, we are upholding the Presiding Officer’s dismissal of
BWX’s motion. The grounds for dismissal cited by the Presiding Officer are re-
jected insofar as they served as a basis for dismissal of the motion.

   3. Region’s Motion for an Accelerated Decision

  In order for the Region to prevail on its motion for an accelerated decision

on liability, the Region must show that it has established the critical elements of
RCRA liability and that BWX has failed to raise a genuine issue of material fact

   20 The affidavits that BWX attached to its motion are, nonetheless, relevant to an assessment

of the Region’s cross-motion, and they can be considered by the Presiding Officer on remand in the
context of determining whether or not to grant the Region’s cross-motion for an accelerated decision.

    21 In a follow-up brief supporting its motion to dismiss, BWX stated that “[a]lthough [BWX]

has the burden of presenting and going forward with its defense that the cold pond at all relevant times
contained mixed waste, in order for EPA to prevail, EPA must establish that it is more likely than not
that the cold pond did not contain mixed waste at all relevant times.” [BWX’s] Reply to EPA’s Re-
sponse to Motion to Dismiss and Motion for Accelerated Decision on Liability at 5 (emphasis added).
BWX repeats this erroneous assertion in its appeal brief, stating that “[t]o prevail on its Motion to
Dismiss, Respondent must show that Complainant failed to establish its prima facie case (i.e., Respon-
dent must show that Complainant did not prove that the Cold Pond was not contaminated with en-
riched uranium throughout the period in question).” Appeal Brief at 18.

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78 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

on its affirmative defense of the Cold Pond’s continuous contamination. The Re-
gion has established the basic elements of, and proven, a prima facie case of
RCRA liability, for BWX concedes that pickling acid waste, a hazardous waste,
was stored in the Cold Pond, and that the company did not obtain interim status or
a permit before operating the unit. In addition, BWX does not dispute that it failed
to fulfill any of the other requirements for owners or operators of RCRA-covered
facilities — such as providing groundwater monitoring, closure plans, and finan-
cial assurance — as detailed in the Region’s complaint. See Appeal Brief at 3-4;
Amended Answer ¶¶ 8, 10 (admitting that the company stored pickling acid waste
in the Cold Pond and did not obtain a permit); supra Section II.B.

  To prevail on its motion, the Region, as the movant for an accelerated deci-

sion, must also successfully dispose of BWX’s affirmative defense. Therefore, the
Region’s task is to show that there is an absence of support in the record for the
defense. See Celotex Corp. v. Catrett, 477 U.S. at 323-24. If the Region satisfies
this burden, BWX, as the non-movant bearing the ultimate burden of persuasion
on its affirmative defense, must meet its countervailing burden of production by
identifying “specific facts” from which a reasonable factfinder could find in its
favor by a preponderance of the evidence. See In re Mayaguez, 4 E.A.D. at 781;
Fed. R. Civ. P. 56(e).

   In analyzing the parties’ respective burdens, the role of the Presiding Officer

is not, as a general rule, to resolve disputed issues of fact. As previously dis-
cussed, the Presiding Officer must ordinarily accept the evidence submitted by
BWX as true and give the company the benefit of all justifiable inferences from
that evidence. See Anderson, 477 U.S. at 255. Since direct evidence of the Cold
Pond’s contamination is absent in this case, BWX relied entirely upon circumstan-
tial evidence consisting of facts and circumstances outside the Cold Pond, from
which evidence it then inferred the unit’s continuous contamination. BWX’s ex-
clusive reliance upon circumstantial evidence did not, by itself, render its case
infirm, for circumstantial evidence can be effectively used to state a proposition
of material fact in the absence of direct evidence. See Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., No. 98-1938, 2000 WL 204559 (4th Cir. (S.C.)
Feb. 23, 2000); see also 1A Wigmore, Evidence § 26 (Tillers rev. 1983) (“There
are innumerable decisions that support the thesis that circumstantial evidence can
provide a compelling demonstration of the existence or non-existence of a fact in
issue.”). Any inference drawn from the evidence, whether the evidence is direct or
circumstantial, must, however, be reasonable.22 As noted earlier, it is unclear to
what extent the Presiding Officer applied these principles in ruling against BWX.

    22 As a general matter, a court on summary judgment need not favor a party whose evidence is

too lacking in probative value, see Anderson, 477 U.S. at 251, and accordingly, as Sylvia Dev. Corp. v.
Calvert County, 48 F.3d 810 (4th Cir. 1995), notes, a court need only draw favorable inferences as to a
fact at issue if such inferences are reasonably probable:
Continued

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 BWX TECHNOLOGIES, INC. 79

  Accordingly, on remand, the Presiding Officer must apply the principles

discussed above, and determine whether BWX’s inferences are reasonably proba-
ble in the context of surrounding facts and circumstances. See Sylvia, 48 F.3d at
818 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588
(1986)) (“Whether an inference [in summary judgment procedure] is reasonable
cannot be decided in a vacuum; it must be considered ‘in light of the competing
inferences’ to the contrary.”); see also T.W. Elec. Service, Inc. v. Pacific Elec.
Contractors Ass’n, 809 F.2d 626, 631-32 (9th Cir. 1987) (“Inferences from the
nonmoving party’s ‘specific facts’ as to other material facts * * * may be drawn
only if they are reasonable in view of other undisputed background or contextual
facts and only if such inferences are otherwise permissible under the governing
substantive law.”); In re Clarksburg Casket Co., 8 E.A.D. 496, 506-09 (EAB
1999) (affirming initial decision granting Agency’s motion for an accelerated de-
cision upon finding that favorable inferences sought by a nonmovant company
concerning its chemical reporting obligations under the Emergency Planning and
Community Right to Know Act were overwhelmed, and thus rendered unreasona-
ble, by the Agency’s contrary inferences pointing to the company’s deficient
reporting).

  For the reasons stated above, we reverse the granting of the Region’s motion

for an accelerated decision and remand the matter to the Presiding Officer for
further proceedings, as more specifically prescribed in Part IV infra.

F. BWX’s Equitable Estoppel Claim

   BWX raised an equitable estoppel claim in a brief filed with the Presiding

Officer23 but no ruling on the claim was apparently issued. BWX raises the claim
in its appeal brief filed with the Board, wherein it asserts that even if it fails to
prevail on the Region’s motion for accelerated decision, and is thus found liable
under RCRA and VHWR, it should nevertheless have an opportunity to argue at
an evidentiary hearing that the Region is “estopped” from enforcing its complaint
because the Region had “earlier concurred in [BWX’s] conclusion that the Cold
Pond was not subject to regulation under RCRA.” Appeal Brief at 17. Treating

(continued)
It is the province of the jury to resolve conflicting inferences from circumstantial evi-
dence. Permissible inferences must still be within the range of reasonable probability,
however, and it is the duty of the court to withdraw the case from the jury when the
necessary inference is so tenuous that it rests merely upon speculation and conjecture.

Sylvia, 48 F.3d at 818 (citation omitted).
23 BWX Reply to EPA’s Response to Motion to Dismiss and Motion for Accelerated Decision

on Liability at 3 (raising affirmative defense of equitable estoppel).

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80 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

BWX’s claim as an affirmative defense of equitable estoppel,24 we deny the claim
because even if the facts asserted by BWX are true, the company, in not alleging
an essential element of equitable estoppel against a government entity, has failed
to state a “genuine issue of material fact” entitling it to an evidentiary hearing on
this matter. See In re Mayaguez Reg’l Sewage Treatment Plant, 4 E.A.D. 772,
778-82 (EAB 1993) (following Fed. R. Civ. P. 56 to review Region’s denial of
respondent’s request for evidentiary hearing on NPDES permit denial).

  Equitable estoppel is an equitable doctrine that precludes a party from as-

serting a right that the party would otherwise enjoy if that party takes actions upon
which its adversary reasonably relies to its detriment. See Heckler v. Cmty. Health
Serv., 467 U.S. 51, 59 (1984); Bank v. U.S., 294 U.S. 120, 124-125 (1935).

   BWX bases its equitable estoppel claim against the Region on the following

assertions: (1) that after a meeting with Region III officials, the Region agreed
with company officials that the NNFD’s operations would not be subject to RCRA
because they involved acid neutralization activities exempted from the statute’s
jurisdiction by 40 C.F.R. § 265.1; (2) that based on this understanding, the com-
pany withdrew its Part A application for interim operating status on March 26,
1981; and (3) that in an April 8, 1981 letter, the Region informed BWX that “[t]he
[Part A permit] application does not demonstrate that the facility * * * is re-
quired to have a RCRA permit * * *.” Appeal Brief at 4; Complaint, ¶ 8. Thus
based on the foregoing, BWX suggests the Region should be estopped from en-
forcing RCRA and VHWR violations against the company because it detrimen-
tally relied upon the Region’s assurances that its operations were not subject to
RCRA.

  When equitable estoppel is asserted against the government, as here, a party

bears an especially heavy burden. As stated in Heckler, “[w]hen the Government
is unable to enforce the law because of the conduct of its agents has given rise to
an estoppel, the interest of the citizenry as a whole in obedience to the rule of law
is undermined.” 467 U.S. at 60. Thus, according to the case law, a party asserting
equitable estoppel against the government not only must prove the traditional ele-
ments of estoppel — that it reasonably relied upon its adversary’s actions to its
detriment — but must also show that the government “engaged in some affirma-
tive misconduct.” United States v. Hemmen, 51 F.3d 883, 892 (9th Cir. 1995),
quoted in In re B.J. Carney Indus., Inc., 7 E.A.D. 171, 196 (EAB 1997).

   Courts have routinely held that “mere [n]egligence, delay, inaction, or fail-

ure to follow agency guidelines does not constitute affirmative misconduct suffi-
cient to estop the government.” Board of County Comm’rs of the County of Adams

    24 The Federal Rules of Civil Procedure, which we here consult for guidance, list “estoppel” as

an affirmative defense. See Fed. R. Civ. P. 8(c).

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 BWX TECHNOLOGIES, INC. 81

v. Isaac, 18 F.3d 1492, 1499 (10th Cir. 1994). In B.J. Carney, we followed this
principle in ruling that the Agency’s delays in both notifying the respondent about
its violations of pretreatment regulations under the Clean Water Act, and then
taking enforcement against it for those violations, did not constitute an “affirma-
tive misconduct” estopping it from enforcing its complaint against the respondent.
In re B.J. Carney, 7 E.A.D. at 197-200.

    We reject BWX’s claim that it is entitled to an evidentiary hearing on the

issue of equitable estoppel against the Region for the reason that the company’s
pleadings fail to set forth “specific facts showing that there is a genuine issue for
trial.” See Fed. R. Civ. P. 56(e). In particular, BWX’s account of its interactions
with the Region does not set forth any specific facts showing that the Region
engaged in affirmative misconduct against the company, i.e., that it deliberately
deceived the company or engaged in something more egregious than “mere inac-
tion, delay, negligence of failure to follow agency guidelines.” For example,
BWX provides no documented evidence that the Region even discussed the Cold
Pond during their alleged meeting and that the Region misinformed BWX about
the Cold Pond’s regulatory status. As BWX admits, “there is no written documen-
tation that complainant concurred in the determination that the Cold Pond was not
subject to regulation, and that the Cold Pond did not need to be included on the
RCRA Part A permit application.”25 See Respondent’s Brief in Response to Com-
plainant’s Reply Brief at 2 n.2; Region’s Reply at 12.26 Thus, the company’s lim-
ited assertions about the Region’s actions do not rise to the level of specific facts
on “affirmative misconduct” necessary to estop the Region’s enforcement action.27

   In sum, we conclude that BWX, by failing to proffer specific facts showing

affirmative misconduct by the Region, has failed to raise a “genuine issue of mate-
rial fact” on its equitable estoppel claim against the Region, and is therefore not
entitled to an evidentiary hearing on the matter. Accordingly, pursuant to
40 C.F.R. § 22.20, we deny by accelerated decision BWX’s equitable estoppel
claim against the Region.

   25
      Significantly, BWX does not dispute the Region’s contention that neither party has any re-

cord of a joint meeting to discuss the NNFD’s regulatory status. Region’s Reply at 12.
26
The limited facts that are available about the Region’s and BWX’s interactions do not sug-
gest an inference of affirmative misconduct by the Region. The Region’s concurrence with BWX’s
determination that the NNFD did not require a RCRA permit took place, by the two parties’ accounts,
after BWX submitted to the Region a Part A application for interim status that did not identify the
Cold Pond. Region’s Reply at 12; Answer at 4, ¶ 22. This reasonably suggests that the Region’s con-
currence was prompted not by misconstrual of the applicable RCRA regulations, but rather by the
incomplete or misleading information that BWX provided the Region on its activities.
27 Because we have determined that BWX has not properly demonstrated affirmative miscon-

duct necessary to raise a genuine issue on equitable estoppel, we need not consider whether BWX has
satisfied the traditional elements of equitable estoppel by showing that it suffered a “detriment” and
reasonably relied upon the Region’s actions. See Hemmen, 51 F.3d at 892.

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82 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

                                    IV. CONCLUSION

   For the above reasons, we affirm the dismissal of BWX’s motion to dismiss,

reverse the grant of the Region’s motion for an accelerated decision, and remand
the case to the Presiding Officer for further proceedings. Upon remand, the Pre-
siding Officer may either (i) issue a new decision granting the Region’s motion
for an accelerated decision, in whole or in part, on one or more of the issues raised
by the parties (and, at the same time, curing the deficiencies discussed above), or
(ii) in the event of a partial or complete denial of the motion, hold an evidentiary
hearing to resolve alleged disputed issues. Any decision issued at the end of the
proceedings on remand should include a detailed statement of findings and con-
clusions on all material issues as well as supporting discussion and analysis of
those findings and conclusions.28 40 C.F.R. § 22.27(a); see also
5 U.S.C. § 557(c).

  Also, we deny by accelerated decision BWX’s claim that the Region is equi-

tably estopped from enforcing its complaint against BWX.29

   So ordered.




    28 Agency practice has long recognized and accepted the use of narrative or expository forms

of decision in lieu of a separate statement of individually enumerated findings and conclusions. See In
re Notice of Intent to Suspend Registrations of Pesticide Products Containing Dibromochloropropane
(DBCP), 1 E.A.D. 565, 587 (Adm’r 1979). The use of the expository form of decision necessarily
assumes, however, that the decision is thorough in addressing the material issues, cites the evidence
that was relied upon, and discusses the basis for the conclusions reached in the decision. Id. In other
words, the decision must advise the reviewing tribunal of its basis with reasonable clarity and detail.
The Presiding Officer’s decision did not pass that test in this instance.
29 Because the Board does not believe that oral argument would be of material assistance in

resolving this matter, BWX’s request for oral argument is denied.

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