Excelsior Mining Arizona, Inc. (Board decision, August 1, 2018)

Plain-English summary

Sharon Rock appealed a Class III Underground Injection Control permit issued by EPA Region 9 to Excelsior Mining Arizona, Inc. for the Gunnison Copper Project in Cochise County, Arizona. She later sent a letter seeking to formally rescind the appeal. The Environmental Appeals Board treated that letter as a request for dismissal under 40 C.F.R. § 124.19(k), waived procedural requirements because she appeared to be unrepresented, and dismissed the petition. The order does not decide the merits of the permit or the project.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(i)(3), § 124.19(i)(4), § 124.19(k), and § 124.19(n)
• Outcome: The petition for review was dismissed after the petitioner asked to rescind the appeal.
• Key point: The EAB may treat a pro se petitioner's letter as a request for dismissal and relax filing requirements for good cause.

Full text (EPA EAB public release)

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

                                               )

In re: )
)
Excelsior Mining Arizona, Inc. ) UIC Appeal No. 18-03 Permit No. R9UIC-AZ3-FY16-1 )
)

ORDER DISMISSING PETITION FOR REVIEW

On July 9, 2018, Petitioner Sharon Rock filed a letter appealing a Class III Underground Injection Control (“UIC”) permit issued by EPA Region 9 to Excelsior Mining Arizona, Inc. for the Gunnison Copper Project in Cochise County, Arizona. Letter from Sharon Rock to Clerk of the Board, U.S. EPA (July 2, 2018). Subsequently, the Board received a second letter from Ms. Rock seeking to “formally rescind” the appeal. Letter from Sharon Rock to Clerk of the Board, U.S. EPA (July 18, 2018).¹

Federal regulations governing the appeal of UIC permits provide that a petitioner may, by motion, request dismissal of an appeal and that the motion must include a reason for the request. 40 C.F.R. § 124.19(k). The Board interprets Ms. Rock’s July 18 letter as a request for dismissal pursuant to 40 C.F.R. § 124.19(k). Given that Ms. Rock appears to be unrepresented by legal counsel, the Board in this instance waives the procedural requirements concerning the form and contents of a request for dismissal. See 40 C.F.R. § 124.19(n) (authorizing the Board to “do all acts and take all measures necessary for the efficient, fair, and impartial adjudication of issues arising in an appeal,” including relaxing or suspending filing requirements for good cause); see also In re Sutter Power Plant, 8 E.A.D. 680, 687 (EAB 1999) (stating that public participation in the permitting process should not be “unduly hampered by process restrictions”).

Therefore, the Board grants the request and dismisses the Petition.

So ordered.²

ENVIRONMENTAL APPEALS BOARD

Dated: 08/01/2018

By: ________
Kathie A. Stein
Environmental Appeals Judge

The three-member panel deciding this matter is composed of Environmental Appeals Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.

¹ The regulations governing the appeal of UIC permits require that all petitions for review and other documents subsequently filed with the Board be served on the Regional Administrator as well as on the permit applicant, if petitioner is not the applicant. 40 C.F.R. § 124.19(i)(3). Proof of service must be appended to each document that is filed. Id. § 124.19(i)(4). Neither the July 2 letter nor the July 18 letter includes proof of service, and there is no indication the filings otherwise satisfy the service requirements. In light of the request for dismissal, the Board through this Order provides notice to the Region and to the permit applicant of the initiation of the proceeding.

² The three-member panel deciding this matter is composed of Environmental Appeals Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Order Dismissing Petition for Review in the matter of Excelsior Mining Arizona, Inc., UIC Appeal No. 18-03, was sent to the following persons in the manner indicated:

By First Class Certified Mail/
Return Receipt Requested:

Sharon Rock
P.O. Box 1723
Bisbee, AZ 85603

Rebecca A. Sawyer
Vice President, Sustainability
Excelsior Mining Arizona, Inc.
Concord Place, Suite 300
2999 North 44th Street
Phoenix, AZ 85018

By EPA Pouch Mail:

Mike Stoker
Regional Administrator
U.S. EPA Region 9
75 Hawthorne Street
Mail Code ORA-1
San Francisco, CA 94105

Rich Campbell
Office of Regional Counsel
U.S. EPA Region 9
75 Hawthorne Street
Mail Code ORC-2
San Francisco, CA 94105

Dated: AUG 1 2018 ________
Annette Duncan
Administrative Specialist