By: dmc-admin//November 6, 2006//
The DNR cannot apply “clarifications” by the EPA that conflict with the text of the governing federal regulations.
“In this case, the Wisconsin Department of Natural Resources applied the ‘clarifications’ of 40 C.F.R. Pt. 763, Subpt. E, App. E, § 1.7.2.1 disseminated by the United States Environmental Protection Agency. Additionally, the State points to a determination by the Environmental Protection Agency Environmental Appeals Board upholding, without independent analysis, a hearing officer’s determination that the ‘clarifications’ were applicable even though it also opined that the ‘language’ of § 1.7.2.1 ‘appears to provide some support for’ an interpretation contrary to those ‘clarifications.’ In re LVI Envtl. Servs., Inc., 2001 WL 988722, 10 E.A.D. 99, 106 (Envtl. App. Bd. 2001), available at http://www.epa.gov/eab/disk11/lvi.pdf. The ‘clarifications’ are, however, at odds with the clear command of § 1.7.2.1 that the asbestos content for each separate layer in a sample be ‘combined to yield an estimate of asbestos content for the whole sample.’ Thus, whatever deference we owe to the Environmental Protection Agency or to the Department of Natural Resources, their interpretation of § 1.7.2.1 is at odds with what the section plainly says.”
Reversed.
Publication in the official reports is recommended.
Dist I, Milwaukee County, Brennan, J., Fine, J.
Attorneys: For Appellant: Rattan, Mark W., Brookfield; For Respondent: Gabrysiak, Jeffrey M., Madison