Envirosafe Services of Ohio, Inc.

Plain-English summary

Envirosafe Services of Ohio and EPA Region V asked the EAB to dismiss a permit appeal without prejudice because the parties were discussing settlement. Their joint motion said both that the issues had been resolved and that settlement agreements might still prove unsuccessful. Because the status of the settlement was unclear, the Board remanded the permit matter to the Region without prejudice instead of dismissing the appeal outright. Envirosafe could reinstate its appeal by written notice if the settlement failed.

Decision snapshot

• Cited authorities: None stated in the released order.
• Outcome: The permit matter was remanded without prejudice, and reinstatement was allowed if settlement ultimately failed.
• Key point: The EAB preserved the petitioner’s ability to revive an appeal when a requested dismissal rests on an unclear or unfinished settlement.

Full text (EPA EAB public release)

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



                           )

In re: )
)
Envirosafe Services of ) RCRA Appeal No. 96-6
Ohio, Inc. )
)
)

                       REMAND ORDER

By joint motion dated January 21, 1997, Envirosafe Services

of Ohio, Inc. ("ESOI") and U.S. EPA Region V have requested that

ESOI’s petition for review filed in the above-captioned matter be

dismissed without prejudice. Joint Motion to Dismiss Without

Prejudice ("Joint Motion"). In support of this request, the

Joint Motion states, in part, that "[i]n light of ongoing

settlement discussions, it is anticipated that the issues raised

by ESOI’s appeal will be rendered moot." Id. at 1 (emphasis

added). The motion further provides that "the parties have

agreed in principle to resolve the matters at issue in this

appeal," and "[a]t this time, the parties have reached final

agreement on each of these matters, thereby rendering the issues

raised by this appeal moot." Id. at 2-3. However, "in the event

the settlement agreements reached on the contested issues

ultimately prove unsuccessful," the motion states that ESOI

should be given leave to reinstate the petition for review. Id.

at 3.
 It is unclear to us, based on the foregoing excerpts from

the Joint Motion, whether the parties currently regard the

petition for review as being moot because of agreements they have

already consummated or whether they believe the petition for

review may become moot at some future date based on agreements

they have yet to consummate. Therefore, rather than dismissing

the petition for review outright, as requested, the Board has

decided to remand ESOI’s permit to the Region without prejudice.

Should settlement of this matter ultimately prove unsuccessful,

ESOI will be permitted to reinstate its appeal by written notice

to the Board. See In re Safety-Kleen Corporation, Odenton

Service Center, RCRA Appeal No. 94-1 (EAB, July 19, 1994) (Order)

(remanding appeal without prejudice and allowing reinstatement

should settlement discussions prove unsuccessful).

So ordered.

Dated: 1/23/97 ENVIRONMENTAL APPEALS BOARD

                           By:          /s/
                                   Kathie A. Stein
                            Environmental Appeals Judge

CERTIFICATE OF SERVICE

 I hereby certify that copies of the forgoing Remand Order in

the matter of Envirosafe Services of Ohio, Inc., RCRA Appeal No.
96-6, were sent to the following persons in the manner indicated:

First Class Mail
Postage Prepaid:

                         E. Lynn Grayson
                         Jenner & Block
                         One IBM Plaza
                         Chicago, IL 60611

                         Timothy J. Thurlow
                         Associate Regional Counsel
                         U.S. EPA, Region V
                         77 West Jackson Blvd
                         Chicago, IL 60604

                         Deborah Golden
                         EnviroSource Management Group
                         1155 Business Center Dr.
                         Horsham, PA 19044-3454

Dated: 1/23/97 /s/
Mildred T. Johnson
Secretary