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Estate of Edward J. Klockenkemper and Rocky Well Service, Inc v. U.S. Environmental Protection Agency

March 21, 2012

ESTATE OF EDWARD J. KLOCKENKEMPER AND ROCKY WELL SERVICE, INC., PETITIONERS,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

This case is here on appeal following respondent United States Environmental Protection Agency's ("EPA") determination that petitioners Rocky Well Service, Inc. and the Estate of Edward J. Klockenkemper violated the federal Safe Drinking Water Act ("SDWA"). Petitioners sought to have the Environmental Appeal Board's ("Board") March 30, 2010, order set aside or remanded, along with several other orders entered during the administrative process. Instead of responding on the merits of the appeal, respondent moves this Court to vacate and remand the Board's final decision dated March 30, 2010, because the EPA erred in citing to unapproved Illinois Underground Injection Control ("UIC") regulations in its amended complaint, in addition to the federally approved Illinois UIC regulations. Petitioners oppose respondent's motion and move this Court to take judicial notice of certain relevant portions of the SDWA, and promulgated federal and state SDWA regulations. For the following reasons, respondent's motion is granted, and petitioners' motion is denied. The Board's final order is vacated and the case is remanded to the Board for reconsideration of the issues under the appropriate legal standards.

I. PROCEDURAL BACKGROUND

In October 1995, the State of Illinois issued a series of notices of violation ("NOV") to petitioners, for alleged violations of the SDWA Class II Illinois UIC regulations. In March 1999, the State of Illinois referred the matter to the respondent, and respondent issued a federal NOV in September 2000. In July 2001, respondent issued an initial administrative complaint to petitioners. In July 2008, the Regional Judicial Office for U.S. EPA Region 5 ("RJO") issued an initial order on penalty against the petitioners. Petitioners appealed through the administrative process, and on March 30, 2010, the Board issued a final decision upholding all orders by the RJO imposing penalties on petitioners for violations of SDWA regulations, including a $105,590 penalty jointly imposed on petitioners. (Doc. 2). Petitioners appealed the Board's decision and requested that the agency's decision be set aside or remanded for redetermination.*fn1

Prior to responding to the merits of petitioners' appeal, on June 3, 2011, respondent submitted a motion to vacate and remand the case to the Board because the EPA committed an error in relying on unapproved State regulations in their analysis. (Doc. 50). Respondent believes that these were procedural errors that can be cured in further administrative proceedings. Petitioners responded on July 8, 2011, agreeing with respondent's motion that an error of law was made; however, they requested the court to vacate with prejudice and deny the remand request due to irreparable harm and prejudice to petitioners. (Doc. 51). On July 22, 2010, respondent submitted a reply to petitioners' response explaining that dismissal with prejudice would preclude the EPA from correcting the pleading error and seeking clarity regarding the findings. (Doc. 53). Further, respondent explained that there was sufficient evidence regarding the already proven conduct of petitioners to provide a sufficient basis for a finding of liability under the appropriate Illinois UIC regulations.

Motion to Conform Transcripts; (6) 7/12/07 M. Toney Order Regarding Motion for Audio tapes; (7) 8/27/07 M. Toney Order Denying Motion for Audio tapes; (8) 11/29/07 M. Toney Order Altering Briefing Format at [eleventh] [h]our; (9) 7/23/08

On August 18, 2011, petitioners filed a motion for an order to give judicial notice of certain relevant portions of federal SDWA regulations and of properly promulgated federal and state SDWA regulations. (Doc. 55). This request was made in relation to respondent's motion for vacatur and remand. On September 16, 2011, respondent submitted a response explaining that judicial notice is not appropriate because the parties disagree as to which version of the Illinois UIC regulations is applicable with respect to the petitioners' violations. (Doc. 56). For the reasons that follow, respondent's motion to vacate and remand to the Board is granted, and petitioners' motion for judicial notice is denied. The case is remanded to the Board for reconsideration under the appropriate legal standards.

II. ANALYSIS

The Court will first address whether the procedural error necessitates a remand, followed by addressing petitioners' irreparable harm, jurisdiction, and judicial notice arguments.

A. Procedural Error

Respondent contends that in its amended complaint filed against petitioners on February 20, 2003, the EPA inadvertently cited to unapproved UIC regulations, along with federally approved UIC regulations, in describing petitioners' violations under the SDWA.*fn2 Respondent posits that because of this procedural error by the EPA, this Court should remand the case back to the Board for redetermination. The Court agrees.

This Court has the authority to remand this case back to the Board. Sec'y of Labor of the U.S. v. Farino, 490 F.2d 885, 891 (1973) ("The Supreme Court has indicated that the district courts have inherent power to remand administrative matters to agencies."). In SEC v. Chenery Corp., the Supreme Court explained the basic guidelines for judicial review of an administrative action. 318 U.S. 80, 94 (1943). The Court explained its deferential stance towards administrative decision making with regards to factual findings and discretionary determinations. Id.

In Immigration & Naturalization Servs. v. Ventura, the Court reiterated the basic principle governing remand that "a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands." 537 U.S. 12, 16 (2002). Additionally, if an agency makes an error of law in its decision, a reviewing court should remand the case so the agency can take steps to apply the correct law. NLRB v. Food Store Emps. Union, 417 U.S. 1, 9 (1974) ("It is a guiding principle of administrative law, long recognized by this Court, that, an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.'") (quoting FCC v. Pottsville Broad. Co., 309 U. S. 134, 145 (1940)); see also Cissell Mfg. Co. v. U.S. Dep't. of Labor, 101 F.3d 1132, 1136 (6th Cir. 1996) ("It is well settled that when an agency makes an error of law in its administrative proceedings, a reviewing court should remand the case to the agency so that the agency may take further action consistent with the correct legal standards.").

Here, the procedural error necessitates a remand because the agency has not yet had an opportunity to consider the issues of this case within the proper framework. The EPA has the authority to adjudicate this matter, and the agency has the right to reconsider the matter under the proper basis. Therefore, this Court ...


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