Williams Pipe Line Company and L&C Services, Inc.

Plain-English summary

EPA Region VII appealed an initial decision that dismissed its complaint against Williams Pipe Line Company and L&C Services, Inc. The Region filed a revised notice of appeal six days after the Board's deadline and asked the Board to reconsider its dismissal of the appeal. The Board held that service and filing are different requirements, that filing is measured by the Board's receipt of the document, and that a notice of appeal and brief must be filed within 20 days after service of the initial decision. The Board denied reconsideration because the revised notice was not received by the February 20, 1997 deadline.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.05(a), 22.05(b), 22.05(b)(2), 22.07(c), and 22.30, including § 22.30(a).
• Outcome: Procedural. EPA Region VII's motion for reconsideration was denied.
• Key point: Mailing a filing before the deadline did not satisfy the rule when the Board received it after the deadline.

Full text (EPA EAB public release)

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


                              )

In re: )
)
Williams Pipe Line Company )
and L&C Services, Inc. ) CAA Appeal No. 97-3
)
Docket No. VII-93-CAA-112 )
)
)

         ORDER DENYING MOTION FOR RECONSIDERATION

 On February 10, 1997, Complainant, U.S. EPA Region VII,

filed what it styled a "Notice of Appeal" from an Initial

Decision dismissing the Region’s complaint in the above-captioned

matter. The Notice was combined with a Motion For Extension of

Time requesting an additional 30 days to file a brief in support

of the appeal. Absent the requested extension, the Region’s

appellate brief was due on February 20, 1997. On February 14,

1997, the Board sua sponte extended the time for the Region to

submit its appellate brief by seven days to allow the Board

sufficient time to consider the extension request and any

opposition thereto.1 This extension was explicitly conditioned

on the Region’s submission by no later than February 20, 1997, of

a revised notice of appeal specifying the issues raised for

review by the Board.

 1
  On February 19, 1997, Respondent, L&C Services, Inc.

("L&C"), filed a response opposing the Region’s request for an
extension of time. Opposition to Motion for Extension of Time
and Request to Strike Notice of Appeal ("L&C Opposition").
 2

The Board did not receive the Region’s revised notice until

February 26, 1997, six days late. The notice indicates that it

was sent by certified mail on February 18, 1997. By order dated

February 27, 1997, the Board dismissed the Region’s notice of

appeal in the above-captioned matter with prejudice as untimely.

See Order Dismissing Appeal. By motion dated February 27, 1997,

the Region requests that the Board reconsider its order

dismissing the appeal. Motion for Reconsideration of Order

Dismissing Appeal ("Motion").

The Region states that its revised notice of appeal "was

timely filed in accordance with the Consolidated Rules of

Practice, 40 C.F.R. Part 22, the provisions governing this

procedure." Motion at 1 (emphasis in original). In support of

this assertion, the Region cites to 40 C.F.R. §§ 22.05(b)(2)

(Service of documents other than complaint, rulings, orders, and

decisions) and 22.07(c) (Service by mail). Section 22.05(b)(2)

states, in part:

All documents other than the complaint, rulings,
orders, and decisions, may be served personally or by
certified or first class mail.

Section 22.07(c) states, in part:

Service of the complaint is complete when the return
receipt is signed. Service of all other pleadings and
documents is complete upon mailing.

The Region concludes that because its revised notice of appeal

was served before the applicable deadline, it was timely filed

with the Board. We disagree.
 3

The regulations clearly distinguish between the service and

the filing of a document. Compare 40 C.F.R. § 22.05(a) (Filing

of pleadings and documents) with 40 C.F.R. § 22.05(b) (Service of

pleadings and documents). Indeed, this distinction is made clear

in section 22.07(c), the very section relied on by the Region in

support of its Motion. This section states, in part:

Where a pleading or document is served by mail, five
(5) days shall be added to the time allowed by these
rules for the filing of a responsive pleading or
document.

40 C.F.R. § 22.07(c) (emphasis added). Thus, the Region’s

reliance on Section 22.07(c) is misplaced.

Under 40 C.F.R. § 22.30 a notice of appeal and an

accompanying appellate brief must be filed with the Board within

20-days after service of the initial decision. It is well

settled that in determining whether a document has been timely

filed, the Board looks to the date the document was received, not

the date of mailing. See In re Outboard Marine Corp., CERCLA

Penalty Appeal No. 95-1, slip op. at 3 (EAB, Oct. 11, 1995), 6

E.A.D. ___ (in order to be considered timely filed a notice of

appeal must be received by the Board within the deadline set

forth in 40 C.F.R. § 22.30(a)); In re Production Plated Plastics,

Inc., 5 E.A.D. 101, 103 n.2 (EAB, 1994) (It is well established

that for purposes of determining the timeliness of an appeal the

Agency looks to the date the appeal is received; "There is

nothing in section 22.30(a) to suggest that serving a document by
 4

mail on the Board is equivalent to filing the document with the

Board."); see also In re Federal-Hoffman, Inc., 3 E.A.D. 12, 13

(CJO, 1989) (appeal must be filed with the Headquarters hearing

clerk within twenty days of service of the initial decision).

Because the Region’s revised notice of appeal was not received by

the February 20, 1997 deadline, we reject the Region’s assertion

that this document was "timely filed." Accordingly, the Region’s

motion for reconsideration is denied.

So ordered.

Dated: 2/28/97 ENVIRONMENTAL APPEALS BOARD

               By:                /s/
                           Edward E. Reich
                     Environmental Appeals Judge

CERTIFICATE OF SERVICE

 I hereby certify that copies of the forgoing Order Denying

Motion for Reconsideration in the matter of Williams Pipe Line
Company and L&C Services, Inc., CAA Appeal No. 97-3, were sent to
the following persons in the manner indicated:

Certified Mail
Return Receipt Requested
and Facsimile:
Henry F. Rompage
Senior Assistant Regional Counsel
U.S. EPA Region VII
726 Minnesota Avenue
Kansas City, Kansas 66101
Fax # (913) 551-7925

                         D.K. Wright, Jr.
                         Hintz and Wright
                         Two Union Square
                         601 Union Street, Suite 3930
                         Seattle, Washington 98101
                         Fax # (206) 587-0823

Dated: 2/28/97 /s/
Mildred T. Johnson
Secretary