Isbrandtsen Oil and Gas Company, Inc.

Plain-English summary

Isbrandtsen Oil and Gas Company appealed a ruling that addressed liability in an underground injection control proceeding. The Board treated the appeal as interlocutory and ordered briefing on whether an administrative appeal was available and whether it could be taken at that stage. Isbrandtsen did not respond to EPA Region V's motion to dismiss or comply with the briefing order, so the Board treated the appeal as abandoned and dismissed it. The Board expressed no view on the unresolved jurisdiction questions and stated that the dismissal was without prejudice.

Decision snapshot

• Cited authorities: No statute or regulation is cited in the order.
• Outcome: Interlocutory appeal dismissed as abandoned, without prejudice.
• Key point: Failure to respond to a jurisdictional briefing order led the Board to treat the appeal as abandoned.

Full text (EPA EAB public release)

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



                           )

In re: )
)
Isbrandtsen Oil and ) UIC Appeal No. 99-1
Gas Company, Inc. )
)
Docket No. UIC-AO-97-011 )
)

                  ORDER DISMISSING APPEAL


 On March 11, 1999, Isbrandtsen Oil and Gas Company, Inc.

(Isbrandtsen), the respondent in the above-entitled

proceeding, filed with the Environmental Appeals Board a

Notice of Appeal and an accompanying Motion for Extension of

Time to File Brief on Appeal. According to the Notice of

Appeal, Isbrandtsen is seeking review of a "Decision on Cross-

Motions for Summary Determination dated February 18, 1999."

Because Isbrandtsen’s Notice of Appeal makes no reference to a

penalty assessment, the Board has regarded the Decision on

Cross-Motions for Summary Determination as addressing

liability only, and has therefore treated the appeal as

interlocutory in nature. 1 Thus, on March 31, 1999, the Board

 1
 Subsequent pleadings indicate that the appeal is

interlocutory in nature. According to the Motion to Dismiss
the Appeal submitted by Region V: "Complainant * * * filed a
Motion, requesting Summary Determination on Liability * * *.
Respondent * * * filed a Response and Cross-Motion for Summary
(continued...)
issued an order requiring Isbrandtsen and U.S. EPA Region V to

submit briefs addressing two jurisdictional issues: 1. whether

an administrative appeal is available at any time in this

matter, and 2. whether such an appeal can be taken at this

stage of this proceeding. Pursuant to the Board’s March 31

order, the Region’s brief regarding these jurisdiction issues

was to be filed by April 8, 1999, and Isbrandtsen’s brief was

to be filed by April 19, 1999. On April 5, 1999, Region V

submitted a motion to dismiss Isbrandtsen’s appeal for lack of

jurisdiction, together with a supporting memorandum.

Isbrandtsen has neither responded to the Region’s motion to

dismiss nor otherwise complied with the Board’s March 31 order

for briefing on jurisdiction issues.

In view of the foregoing, we regard Isbrandtsen’s

interlocutory appeal as having been abandoned and hereby

dismiss the appeal. Because the jurisdictional questions in

this case have not been fully briefed, the Board at this time

intimates no view as to the proper resolution of those issues.

1
 (...continued)

Determination of its own. * * * On February 18, 1999, the
Presiding Officer issued a Decision on the Motions for Summary
Determination. The decision found Respondent liable. It is
this decision on liability from which Respondent seeks to
appeal." Motion to Dismiss Appeal at 1-2 (March 30, 1999).

                         - 2 -

This dismissal is without prejudice to any basis

Isbrandtsen may have to seek further review after the

Presiding Officer has issued her Initial Decision in this

case.

So ordered.


                        ENVIRONMENTAL APPEALS BOARD



                        By:          /s/
                                    Scott C. Fulton
                        Environmental Appeals Judge

Dated: 08/05/99

                        - 3 -

CERTIFICATE OF SERVICE

 I hereby certify that copies of the foregoing Order

Dismissing Appeal in the matter of Isbrandtsen Oil & Gas Co.,
UIC Appeal No. 99-1, were served upon the following persons in
the manner indicated:

By certified mail: Matthew D. Zimmerman
Mark M. Davis
Varnum, Riddering,
Schmidt & Howlett
Bridgewater Place
P.O. Box 352
Grand Rapids, MI 49501-0352

By first-class mail: Thomas C. Nash (C-29A)
Assistant Regional Counsel
U.S. EPA, Region V
77 W. Jackson Blvd.
Chicago, IL 60604-3590

                           Regina M. Kossek
                           Regional Judicial Officer
                           U.S. EPA, Region V
                           77 W. Jackson Blvd.
                           Chicago, IL 60604-3590




                                       /s/
                                 Annette Duncan
                                        Secretary

Dated: 08/06/99