NE Hub Partners, L.P. (Board decision, May 30, 1997)

Plain-English summary

EPA Region III asked the Environmental Appeals Board to remand the UIC permit matter so the Region could reconsider comments submitted by Penn Fuel Gas, Inc. and CNG Transmission Corp. during the permit process. The Region said it would take the steps required by 40 C.F.R. parts 124, 144, and 146 on remand. The Board said the February 18 permit decisions would not take effect and that new petitions would have to follow 40 C.F.R. § 124.19. It declined to specify the information the Region should consider on remand, granted the Region's motion, and dismissed both appeals without prejudice. The petitioners could file new petitions for review after the Region issued new permit decisions.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.15 and 124.19, including § 124.19(a).
• Outcome: The voluntary-remand motion was granted, and UIC Appeal Nos. 97-1 and 97-2 were dismissed without prejudice to new petitions after the Region's permit decisions.
• Key point: The dismissal did not bar new petitions after the Region issued new permit decisions on remand.

Full text (EPA EAB public release)

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

In re:

NE Hub Partners, L.P.
; UIC Appeal Nos.
97-1 and 97-2
Permit Nos. PASlX933BTIO
;
PAS3G934BTIO

REMAND ORDER

By motion dated May 23, 1997, U.S. EPA Region III has

requested that this matter be remanded to the Region for further ,

consideration of “comments submitted [by petitioners Penn Fuel

Gas, Inc. and CNG Transmission Corp.] during the permit issuance

process." The Region states that on remand, following its

reexamination of the petitioners' comments, it will “take the

steps necessary to meet the substantive and procedural requirements of 40 C.F.R. Parts 124, 144 and 146 with respect to

these permits." The petitioners have submitted a response to the

Region's motion to remand, urging that the motion be granted

subject to three proposed “clarifications" regarding the procedures to be employed by the Region on remand.
Two of the petitioners' proposed clarifications relate to

the effect of the Region's February 18, 1997 permit decisions.

The Region's motion to remand does not explicitly state that the

February 18 permit decisions will be superseded by permit

decisions to be issued at the conclusion of the proceedings on

remand, and the petitioners therefore express uncertainty as to (1) whether the February 18 permit decisions could somehow become

effective if the Region's motion is granted, and (2) whether,

after the conclusion of the proceedings on remand, their

petitions seeking review of the February 18 permit decisions

could simply be reinstated through some type of informal appeal

procedure (involving “written notice to the Board") distinct from

the procedure described in 40 C.F.R. § 124.19.' As we understand the Region's motion, the Region is proposing to issue new permit decisions' at the conclusion of the proceedings' on,remand;

therefore, the February 18 permit decisions would not become effective (see 40 C.F.R. 5 124.15), but the petitioners would be

required to comply with 40 C.F.R. § 124.19 in order to seek Board review of the permit decisions that the Region ultimately issues.

Finally, the petitioners ask that we specifically identify certain kinds of information that the Region should consider on

remand and that, if,considered by the Region on remand, should be disseminated to "all interested members of the public" for review

and comment. We reject that request, and we leave it for the

Region to manage the proceedings on remand as it deems

appropriate, consistent with applicable regulatory requirements.

'In connection with this proposed “clarification," the petitioners also request that the Board “accept Petitioners' appeal of the permit decisions before ordering the remand." Petitioners' Response to the Region's Motion for Voluntary Remand, at 2. We do not know what is meant by that request, and we therefore decline to address it.

*By "new" we simply mean afresh, and do not assume that the new permit decisions will necessarily be different from, or the same as, the current permit decisions.

-2 -
 The Region's Motion for Voluntary Remand is hereby granted; and UIC Appeal Nos. 97-l and 97-2 are dismissed. The dismissal of Appeal Nos. 97-l and 97-2 is without prejudice to the filing

of new petitions for review, by these petitioners, following the

Region's issuance 'of new permit decisions on remand.-3

So ordered.

ENVIRONMENTAL APPEALS BOARD

By: - -
Ronald L. McCallum
Environmental Appeals Judge
Dated:

31n any petitions for review filed after the issuance of new permit decisions, these petitioners will be able both to reassert objections already raised in their current petitions and to assert objections based on any changes made to the permit decisions on remand. Persons other than'the petitioners, on the other hand, will be able to petition the Board for review of the new permit decisions only to the extent of any changes made on remand. See 40 C.F.R. § 124.19(a).

• 3 -
   CERTIFICATE 6F SERVICE P'
  I hereby certify that copies of the foregoing Remand Order in the matter of NE Hub Partners, L.P., UIC Appeal Nos. 97-l and 97-2, were served upon the following persons in the manner indicated:

By fax and
Philip Yeany, Esq.
first-class mail: Senior Assistant Regional Counsel
U.S. EPA, Region III
841 Chestnut Building
Philadelphia, PA 19107-4431
Fax: (215) 566-2603

James T. Banks, Esq.
Hogan & Hartson
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
Fax: (202) 637-5910

By first-class mail: Drew J. Kovalak, Esq.
CNG Transmission Corp.
445 W. Main Street
Clarksburg, WV 26302
Andrea Hilliard, Esq.
NE Hub Partners, L.P.
2 Riverbend at Lansdowne
44084 Riverside Parkway
Suite 340
Leesburg, VA 22075
I
Diane Sanford, Esq.
Akin Gump Strauss
Hauer & Feld
1333 New Hampshire Ave., N.W.
Washington, D.C. 20036

Mildred T.

Dated: MAY 30 1997