Decisions and Orders | Office of Administrative Law Judges| US EPA

 
	
		
	
	
	

  
 






UNITED STATES 
ENVIRONMENTAL PROTECTION AGENCY



BEFORE THE ADMINISTRATOR










In the Matter of              )
                              )
Rhone-Poulenc Rorer           )    Docket No. EPCRA-III-226
Pharmaceuticals, Inc.         )
                              )
          Respondent          )














ORDER  ON JOINT MOTION FOR DISMISSAL
	On March 31, 1998, the Complaint in this matter was filed by the U.S. Environmental
Protection Agency Region III pursuant to Section 325 of the Emergency Planning and
Community Right-To-Know Act of 1986 (EPCRA), 42 U.S.C. § 11045.  The Complaint alleged
that Respondent violated Section 313 of EPCRA, 42 U.S.C. § 11023.  The Respondent answered
the Complaint, denying the alleged violations.






	On September 28, 1998, the parties filed a "Joint Stipulation of Dismissal" (Motion)
moving to dismiss the Complaint, on the basis that Respondent's facility falls outside of the
jurisdiction of Section 313 of EPCRA.  One of the jurisdictional requirements of EPCRA Section
313 is that the Standard Industrial Classification ("SIC") code falls between 20 and 39.  The
Complaint alleged that the SIC code for Respondent's facility was 28.  Subsequent to the filing
of the Complaint, Respondent provided a Declaration of Stuart S. Dearden, Manager of
Environmental Affairs of Respondent, stating that the correct SIC code of the facility at the time
of the alleged violations was 8731.  On that basis the parties jointly move to dismiss the
Complaint without prejudice and they state that they each agree to pay their own costs and
attorney's fees.                   






	As to dismissal of a complaint, the Rules of Practice applicable to this proceeding provide
that the Presiding Officer may upon motion dismiss an action "without further hearing . . . on the
basis of failure to establish a prima facie case or other grounds which show no right to relief on
the part of complainant." 40 C.F.R. § 22.20(a).  However, the Rules of Practice provide that if a
decision to dismiss is issued as to all issues and claims in the proceeding, it constitutes an initial
decision.   40 C.F.R. § 22.20(b).  As such, it cannot be refiled, and thus the dismissal under
Section 22.20(a) cannot be "without prejudice."  






	The Rules of Practice provide for withdrawal of a complaint without prejudice in 40
C.F.R. § 22.14(e).  The parties have neither cited to this provision nor requested a "withdrawal"
of the Complaint.  Thus, the motion will not be treated as such without further clarification from
the parties.      










	Accordingly, Complainant is hereby ORDERED to submit, within ten days of the date
of service of this Order, either a Joint Motion for Dismissal With Prejudice or a Joint
Motion for Withdrawal of the Complaint.   






                                                    















    

________________________________


Susan L. Biro


Chief Administrative Law Judge










Dated:    October 6, 1998


Washington, D.C.
Local Navigation
