West Bay Exploration Co. (Board decision, April 16, 2013)

Plain-English summary

Peter Bormuth and Sandra K. Yerman challenged an Underground Injection Control permit granted to West Bay Exploration Company. EPA Region 5 withdrew the permit in its entirety and announced its intent to prepare a new draft permit. Because the permit withdrawal eliminated the subject of the challenges, the Board found both petitions moot and dismissed them with prejudice. The dismissal did not affect the petitioners' right to seek review of future action on West Bay's application.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19(j), 124.19(i)(2), and 124.7
• Outcome: The consolidated petitions were dismissed with prejudice as moot.
• Key point: Withdrawal of the challenged permit made the pending permit petitions moot.

Full text (EPA EAB public release)

                     BEFORE THE ENVIRONMENTAL APPEALS BOARD
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, DC

                                    )

In re: )
)
West Bay Exploration Co. ) UIC Appeal Nos. 13-01 & 13-02
)
UIC Permit No. MI-075-2D-0009 )
)
)

           ORDER DISMISSING PETITIONS FOR REVIEW AS MOOT

     Presently pending before the Environmental Appeals Board ("Board") are petitions from

Peter Bormuth and Sandra K. Yerman challenging an Underground Injection Control ("UIC")

permit granted to West Bay Exploration Company ("West Bay"), Permit No. MI-075-2D-0009.

On April 8, 2013, however, the U.S. Environmental Protection Agency Region 5 ("Region")

withdrew this UIC permit in its entirety pursuant to 40 C.F.R. § 124.19(j) and announced its

intent to prepare a new draft permit.

     Section 124.19(j) specifies the circumstances under which a Regional Administrator may

withdraw a permit unilaterally. Generally, a Regional Administrator is allowed, upon

notification to the Board and any interested parties, to withdraw a permit unilaterally if such

action is taken prior to 30 days after the Region files its response to the petition for review. The

reason for limiting the period as to when permits may be unilaterally withdrawn is "to ensure

that unilateral withdrawal of a permit will occur before the Board has devoted significant

resources to the substantive consideration of an appeal." Revisions to Procedural Rules to

Clarify Practices and Procedures Applicable in Permit Appeals Pending Before the

Environmental Appeals Board, 78 Fed. Reg. 5281, 5282 (Jan. 25, 2013). Although

section 124.19(j) defines a limited period in which a Regional Administrator may unilaterally

withdraw a permit, "[n]othing in this regulation prevents the Region from seeking to withdraw

the permit by motion at any time." Id. Once the 29-day period following the Region's response

to the petition has expired, a Regional Administrator must obtain, by motion, a voluntary remand

of the permit before withdrawing it.¹

     In this permit appeal, there are two separate petitioners, Peter Bormuth and Sandra K.

Yerman. Mr. Bormuth and Ms. Yerman filed their petitions on January 8, 2013, and February

13, 2013, respectively,² and the Region's responses were due on February 25, 2013, to Mr.

Bormuth's petition, and April 9, 2013, to Ms. Yerman's. The Region filed a timely response to

Mr. Bormuth's petition, on February 25, 2013. On April 8, 2013, the Region withdrew the West

Bay permit in its entirety, obviating the need for a response to Ms. Yerman's petition. As part of

its withdrawal of the permit, the Region notified the Board, West Bay, and the petitioners, Mr.

Bormuth and Ms. Yerman of its action. The Region also sent notice of the permit withdrawal to

all persons who commented on the draft permit and all persons on the Region's mass mailing list

for draft permits in the State of Michigan.

¹ A motion for voluntary remand of the permit is also required if oral argument already has been held within the timeframe in which unilateral withdrawal otherwise would be permitted. 40 C.F.R. § 124.19(j).

² Ms. Yerman's petition was filed later than Mr. Bormuth's because the Region notified her of its final decision to issue the West Bay UIC permit at a later date than it notified Mr. Bormuth. Ms. Yerman's petition was further delayed because the Region instructed Ms. Yerman to file her petition with the Board at the Board's former address. The Board's current address is provided in 40 C.F.R. § 124.19(i)(2).

    As the Region has withdrawn the permit in its entirety, the petitions from Mr. Bormuth

and Ms. Yerman challenging the permit are rendered moot. Accordingly, Mr. Bormuth's and

Ms. Yerman's petitions are hereby DISMISSED WITH PREJUDICE. The dismissal with

prejudice has no effect on the petitioners' right to petition the Board for review of future action

by the Region on West Bay's application for a UIC permit.³

    So ordered.


                                           ENVIRONMENTAL APPEALS BOARD⁴

Dated: April 16, 2013 [signature]

                                                     Catherine R. McCabe
                                                  Environmental Appeals Judge

³ The Region has indicated its intent to prepare a new draft permit for the West Bay well. As both petitioners raised concerns regarding the adequacy of the notice provided by the prior draft permit and statement of basis, the Board recommends that the Region, in preparing a new draft permit and statement of basis, consider the Administrator's discussion of a similar issue in the UIC permit decision in In re Pennzoil Exploration and Production Co., 3 E.A.D. 389, 392 (Adm'r 1990). In that case, the Region's statement of basis provided little information in support of the Region's decision to deny the permit other than a statement that the confining zone was "insufficient" to prevent contamination of underground sources of drinking water. Although the Administrator noted that, under 40 C.F.R. § 124.7, a statement of basis is only required to "briefly describe" the Region's reasoning, the Administrator held that this statement of basis was inadequate because it was not "sufficiently detailed to afford the applicant a meaningful opportunity to comment." Id. at 392. The Administrator remanded the permit to the Region with the instruction that "the Region shall issue a new statement of basis detailing why it thinks the confining zone is insufficient and specifying the parts of the record (including the applications) that the Region deemed pivotal in its decision." Id. at 394.

⁴ The three-member panel deciding this matter is composed of Catherine R. McCabe, Leslye M. Fraser, and Kathie A. Stein.

                                              3

                           CERTIFICATE OF SERVICE

    I hereby certify that copies of the foregoing Order Dismissing Petitions for Review as

Moot in the matter of West Bay Exploration Co., UIC Appeal Nos. 13-01 and 13-02, were sent to the following persons in the manner indicated:

By Certified Mail, Return Receipt Requested:

Peter Bormuth
142 W. Pearl St.
Jackson, MI 49201

Sandra K. Yerman
6600 Riverside Dr.
Brooklyn, MI 49230

West Bay Exploration Company
13685 South West Bay Shore Drive
Suite #200
Traverse City, MI 49684

By Pouch Mail:

Kris P. Vezner
Assistant Regional Counsel
U.S. EPA, Region 5
77 W. Jackson Blvd. (C-14J)
Chicago, IL 60604

Dated: April 16, 2013

                                         [signature]
                                         Secretary