Gasco Energy, Inc. (Board decision, February 4, 2015)

Plain-English summary

Southern Utah Wilderness Alliance petitioned for review of an Underground Injection Control permit that EPA Region 8 issued to Gasco Energy, Inc. for a Class II enhanced oil recovery well in Uintah County, Utah. Region 8 asked the Board to remand the permit after determining that it had not fully addressed one of the Alliance's comments. The Board found good cause for remand, granted the motion, and dismissed the appeal. The Region was directed to reconsider the permit and issue a new final permit decision, with another public comment opportunity if required. The order said the Alliance could petition for review of the new decision within 30 days after notice of that decision.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 300f, 300j-26; 40 C.F.R. §§ 124.6, 124.10, 124.14, 124.15, 124.17, 124.19
• Outcome: The voluntary-remand motion was granted, UIC Appeal No. 14-191 was dismissed, and EPA Region 8 was directed to reconsider the permit decision.
• Key point: The EAB may remand a permit decision when the permitting authority identifies a substantive issue for reconsideration and remand serves administrative efficiency.

Full text (EPA EAB public release)

F I L E D
FEBRUARY 4, 2015
Clerk, Environmental Appeals Board
INITIALS [illegible]

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

In re:

Gasco Energy, Inc. )
)
) UIC Appeal No. 14-191
Permit No. UT22291-10328 )

           ORDER GRANTING MOTION FOR VOLUNTARY REMAND

     On December 17, 2014, the Southern Utah Wilderness Alliance ("SUWA") filed a

petition with the Environmental Appeals Board ("Board") seeking review of an Underground

Injection Control ("UIC") permit, number UT22291-10328 ("Permit"), which the U.S.

Environmental Protection Agency Region 8 ("Region") issued to Gasco Energy, Inc. ("Gasco")

pursuant to the Safe Drinking Water Act, 42 U.S.C. §§ 300f to 300j-26. The UIC permit is a

Class II permit for an enhanced oil recovery well in Uintah County, Utah. See Permit at 1 (issued

Nov. 27, 2014).

     On January 12, 2015, the Region filed a motion requesting that the Board remand the

Permit back to the Region for reconsideration. Region 8's Motion for Voluntary Remand

("Motion") at 1. The Region reports that SUWA does not oppose the motion. Id. at 3. The

permittee, while initially indicating that it would oppose the motion, later filed a notice of

withdrawal of opposition to the Region's motion. See Gasco Energy, Inc.'s Notice of Intent to

File Response in Opposition to Region 8's Motion for Voluntary Remand at 1 (Jan. 13, 2015);

Gasco Energy, Inc.'s Notice of Withdrawal of Opposition to Region 8's Motion for Voluntary

Remand at 1 (Jan. 21, 2015).

   In its Motion, the Region states that it has reviewed the administrative record and has

determined that it did not fully address one of SUWA's comments. Motion at 1. It requests a

remand so that it may correct any factual errors and reconsider the public comments. 1 Id. at 1-2.

The Region indicates that it will then "decide whether to reissue a final permit, with or without

changes, or deny the permit." Id. at 2.

   The Board has broad discretion to grant a remand request, and we have repeatedly held

that "' [a] voluntary remand is generally available where the permitting authority has decided to

make a substantive change to one or more permit conditions, or otherwise wishes to reconsider

some element of the permit decision before reissuing the permit."' In re Desert Rock Energy

Co., 14 E.A.D. 484,493 (EAB 2009) (quoting In re Indeck-Elwood, LLC, PSD Appeal

No. 03-04, at 6 (EAB May 20, 2004) (Order Denying Respondent's Motion for Voluntary Partial

Remand and Staying the Board's Decision on the Petition for Review)).· As the Board has

emphasized, it "typically grants a motion [for remand] where the movant shows good cause for

its request and/or granting the motion makes sense from an administrative or judicial efficiency

standpoint." Id. at 497; accord In re Windfall Oil & Gas, Inc., UIC Appeal Nos. 14-04 through

14-62, at 2 (EAB June 10, 2014) (Order Granting Motion for Voluntary Remand to Allow

Reconsideration of Permit Decision).

   Here, the Region has shown good cause for its request. The Region has clearly expressed

its intent to reconsider its final permit decision. See Motion at 1-2. Significantly, the Region

indicates that it may have failed to adequately address a comment. See 40 C.F.R. § 124.17(a)(2)

    1
      The Region requests a remand pursuant to the discretionary authority of the Board,

stating that it is not, at this time, unilaterally withdrawing the permit under 40 C.F.R.
§ 124.190). Motion at 3.

                                             2

(requiring permit issuers to "[b]riefly describe and respond to all significant comments on the

draft permit"). In addition, administrative efficiency will be served by allowing the Region to

reconsider its decision and correct any errors. Moreover, none of the parties currently opposes

the motion. For these reasons, the Board concludes that remand for reconsideration of the permit

decision is appropriate in this case.

   If, upon reconsideration, the Region determines that a new draft permit should be issued,

it must provide an additional public comment opportunity under the applicable public

participation procedures in 40 C.F.R. part 124. See 40 C.F.R. §§ 124.6, .10. There may also be

other circumstances where the Region should reopen the public comment period. See, e.g.,

40 C.F.R. § 124.14; In re Energy Answers Arecibo, LLC, PSD Appeal Nos. 13-05 through 13-09,

slip op. at 31-32 (EAB Mar. 25, 2014), 16 E.A.D. _ (discussing permit changes and other

modifications of a permit decision that require additional public comment), appeal docketed sub

nom. Sierra Club de P.R. v. US. EPA, No. 14-1138 (D.C. Cir. July 17, 2014); In re Indeck-

Elwood, LLC, 13 E.A.D. 126, 147-48 (EAB 2006) (requiring the permit issuer, if it decided to

include a new permit condition, to reopen the comment period where permit issuer referred to

such condition as a "significant change" and had not provided an opportunity for public comment

on it). In addition, regardless of whether reopening of the public comment period is compelled

by part 124 requirements, the Region has broad discretion under section 124.14(b) to determine

whether "substantial new questions concerning a permit" merit an additional opportunity for

public comment. In reNE Hub Partners, LP, 7 E.A.D. 561, 584 (EAB 1988) ("A reopening of

the public comment period under section 124.14(b) largely depends on the Region's discretion

• • *."), aff'd sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3rd Cir. 1999); see also In re

                                         3
    

Dominion Energy Brayton Point, LLC, 13 E.A.D. 407,416 & n.10 (EAB 2007) (discussing

considerations that may inform a Regional Administrator's decision on the issue of reopening the

public comment period).

    The Board hereby GRANTS the Region's Motion for Voluntary Remand. Accordingly,

UIC Appeal No. 14-191 is DISMISSED. In an Order issued January 14, 2015, the Board had

held in abeyance the deadline for the filing of response briefs. See Order Shortening Deadline for

Filing Opposition Briefs and Holding in Abeyance Deadline for Filing Response Briefs at 2.

Today's Order renders moot any need for the parties to file response briefs.

    After reconsideration, the Region must issue a new final permit decision pursuant to the

part 124 permitting regulations. See 40 C.F.R. §§ 124.15(a), .17(a). SUWA may file a petition

under 40 C.F.R. § 124.19(a) with the Board challenging the new final permit decision, and it

must do so if it wishes to preserve the option of seeking judicial review of EPA's final action. 2

Petitions for review must be filed within 30 days after the Region serves notice of the revised

final permit decision. See 40 C.F.R. § 124.19(a)(3).

    So ordered. 3

                                          ENVIRONMENTAL APPEALS BOARD

Date: FEBRUARY 4, 2015
[signature]
Kathie A. Stein
Environmental Appeals Judge

    2
    Thus, the Board is directing that an appeal to the Board following the Region's decision

on remand is required to exhaust administrative remedies before EPA. See 40 C.F.R.
§ 124.19(l)(2)(iii).
3
The three-member panel deciding this matter is composed of Environmental Appeals
Judges Leslye M. Fraser, Randolph L. Hill, and Kathie A. Stein. See 40 C.F.R. § 1.25(e)(1).

                                             4


                                CERTIFICATE OF SERVICE
   I hereby certify that copies of the foregoing Order Granting Motion for Voluntary

Remand in the matter of Gasco Energy, Inc., UIC Appeal No. 14-191, were sent to the following
persons in the manner indicated:

By Pouch Mail:

Lucita C. Chin
Office of Regional Counsel
U.S. Environmental Protection Agency, Region 8
1595 Wynkoop Street
Mail Code 8RC
Denver, CO 80202

By First Class Mail:

Stephen H.M. Block Michael Decker
Landon Newell Gasco Energy, Inc.
Southern Utah Wilderness Alliance 7979 Tufts Avenue, Suite 1150
425 East 100 South Denver, CO 80237
Salt Lake City, UT 84111

Bret A. Sumner
Jillian Fulcher
Beatty & Wozniak, P.C.
216 Sixteenth Street, suite 1100
Denver, CO 80202-5115

Dated: FEBRUARY 4, 2015
[signature]
Annette Duncan
Secretary