Outboard Marine Corp.

Plain-English summary

EPA Region V appealed an initial decision that found Outboard Marine Corp. liable and assessed a $16,961 civil penalty. The Regional Hearing Clerk served the initial decision through interoffice mail on August 3, 1995, but the Board received the appeal on August 24, one day beyond the applicable 20-day period. The Environmental Appeals Board held that service through interoffice mail was complete when the clerk placed the decision in the mail system, and that the Region had not shown extraordinary circumstances for a deadline waiver. It dismissed the appeal and denied the extension motion.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.06, 22.07, and 22.30; 42 U.S.C. §§ 9601 and 9606
• Outcome: The appeal was dismissed as untimely, and the extension motion was denied.
• Key point: The appeal deadline ran from certified service by the Regional Hearing Clerk, not from the later date the Regional attorney received the decision.

Full text (EPA EAB public release)

194 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN RE OUTBOARD MARINE CORP.

CERCLA Penalty Appeal No. 95-1
ORDER DISMISSING APPEAL

Decided October 11, 1995

Syllabus

On July 25, 1995, the Presiding Officer issued an initial decision in In re Outboard Marine
Corp., finding liability and assessing a civil penalty against the respondent in the amount of
$16,961 for one count of violating the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. § 9601 et seq. The Regional Hearing Clerk for U.S. EPA Region V
served the decision upon the Assistant Regional Counsel for Region V by interoffice mail on
August 3, 1995. On August 24, 1995 (twenty-one days after service of the initial decision), the
Board received from Region V a notice of appeal and a motion seeking an extension of time
to file its appeal brief and other materials required by 40 C.F.R. § 22.30. Because 40 C.F.R.
§ 22.30(a)(1) requires appeals to be filed within twenty days after service of the initial decision,
the Board issued an order to Region V requiring it to show cause why its appeal should not be
dismissed as untimely. The Region contends that the appeal is timely because although the
Regional Hearing Clerk placed the decision in interoffice mail on August 3, 1995, it was not
received in the Office of Regional Counsel until August 4, 1995.

Held: The Region's notice of appeal and motion are untimely and must be dismissed.
Absent extraordinary circumstances, appeals must be received by the Board within twenty days
of service of the initial decision in order to be timely. Service of an initial decision is complete
as of the date the Regional Hearing Clerk certifies that it was served “personally,” or “upon mail-
ing” when the decision is served by certified mail. To accept the Region's claim (that service by
interoffice mail is not complete until the decision is received by the Regional attorney) contra-
venes the intent of the rules, which is to provide the parties and the Board with certainty in
determining when appeals must be perfected. It is therefore reasonable to construe service by
interoffice mail as a type of service made “personally,” and complete as of the date the Regional
Hearing Clerk certifies the initial decision was placed in interoffice mail. Because the Region's
appeal was received twenty-one days after the Regional Hearing Clerk served the initial deci-
sion, and the Region has not established “extraordinary circumstances” justifying a waiver of the
deadline, the appeal is untimely.

Before Environmental Appeals Judges Ronald L. McCallum
and Edward E. Reich.

Opinion of the Board by Judge Reich:
On September 6, 1995, the Board issued an order to U.S. EPA

Region V requiring the Region to show cause as to why its appeal in
this matter should not be dismissed as untimely. On September 12,

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OUTBOARD MARINE CORP. 195

1995, the Region submitted its response to the Board’s order.’ The
respondent, Outboard Marine Corporation (OMC), filed an opposition
to the Region’s response on September 27, 1995. Upon consideration
of the Region’s response and OMC’s opposition, and for the reasons
explained below, the Board concludes that the Region’s appeal must
be dismissed as untimely.

The Region’s appeal stems from a complaint filed by the Region
against OMC charging OMC with two counts of violating a consent
decree and order issued pursuant to the Comprehensive Environ-
mental Response, Compensation, and Liability Act (CERCLA), 42
U.S.C. § 9601 et seq. The complaint sought penalties totalling in excess
of $475,000. On July 25, 1995, the Presiding Officer entered an initial
decision in In re Outboard Marine Corp., Docket No. V-W-91-C-123B,
finding liability and assessing a civil penalty against OMC in the
amount of $16,961 for one count.’

According to the Regional Hearing Clerk’s certificate of service,
the initial decision was served upon the Assistant Regional Counsel
for Region V by interoffice mail on August 3, 1995, at 77 West Jackson
Boulevard, Chicago, Illinois, and upon the other parties by certified
mail. The Regional Hearing Clerk is located at 77 West Jackson
Boulevard. The Region apparently furnished 77 West Jackson
Boulevard as its appropriate service address, and concedes that all
mail for Region V is routed through the central mail room at 77 West
Jackson Boulevard.?

On August 24, 1995 (twenty-one days after service of the initial
decision upon the Region), the Board received the Region’s notice of
appeal and a “Motion for Extension of Time to File and Serve
Appellant’s Brief with Affirmative Findings of Fact, Conclusions of
Law, and Proposed Order,” in which counsel for Region V sought an
additional sixty days to file the briefs and other materials required by
40 C.F.R. § 22.30. The two-paragraph notice of appeal did not contain
any of the elements required by the regulations to perfect an appeal."

! The Region's response was entitled “Motion for a Finding that Respondent [sic] Filed Its
Notice of Appeal and a Motion for Extension of Time in a Timely Manner.”

• OMC has not appealed the initial decision.
  ‘ The Region furnished the same address to the Board for the service of orders in this matter.
• See 40 CER. § 22.30(a)(1). That regulation states that “[tlhe notice of appeal shall set forth

alternative findings of fact, alternative conclusions regarding issues of law or discretion, and a
proposed order together with relevant references to the record and the initial decision.”

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196 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Pursuant to 40 C.F.R. § 22.30:

Any party may appeal an adverse ruling or order of the
Presiding Officer by filing a notice of appeal and an
accompanying appellate brief with the Environmental
Appeals Board and upon all other parties and amicus
curiae within twenty (20) days after the initial decision
is served upon the parties.

40 C.F.R. § 22.30(a)(1) (emphasis added). Because the Region’s notice
of appeal and motion for extension of time were received by the
Board twenty-one days after service of the initial decision, the Board
issued an order to the Region to show cause as to why its notice of
appeal should not be dismissed as untimely. The Board noted in the
order that “absent extraordinary circumstances, a notice of appeal
must be received by the Board within the deadline set forth in 40
C.F.R. § 22.30(a) in order to be timely.” Order to Show Cause at 3 (cit-
ing In re Apex Microtechnology, Inc., EPCRA Appeal No. 93-2, at 3-5
(EAB, July 11, 1994) (and cases cited therein)).

In the Region’s response to the show cause order, the Assistant
Regional Counsel contends that the initial decision was not hand-
delivered to him on August 3, 1995, but was placed in the Region’s
interoffice mail on that date and did not actually arrive at the Office
of Regional Counsel (at 200 West Adams Street, Chicago, Illinois) until
August 4, 1995.° The Assistant Regional Counsel contends that since
the Board received the notice of appeal and motion for extension of
time on August 24 (twenty days after the initial decision was received
by the Office of Regional Counsel) the appeal is timely. We conclude
that neither is the appeal timely nor has the Region established “extra-
ordinary circumstances” justifying acceptance of an untimely appeal.

The Consolidated Rules of Procedure contemplate two forms of
service for the “rulings, orders, decisions, and other documents”
issued by presiding officers. Such documents “shall be served person-
ally, or by certified mail, return receipt requested.” 40 C.F.R. § 22.06
(emphasis added). The date of service of an initial decision triggers
the twenty-day period within which an appeal must be perfected. /d.
§ 22.30(a). When an initial decision is served “personally,” determin-
ing the date of service is a straightforward matter of looking at the
date upon which the Regional Hearing Clerk certified that service was

We agree with the Assistant Regional Counsel that the fact that he was on leave on August
4 and did not personally receive the decision until August 7, 1995, is of no consequence.

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OUTBOARD MARINE CORP. 197

made. When an initial decision is served by “mail” (which must be
“certified mail” in accordance with § 22.06), the rules provide that ser-
vice is complete “upon mailing” (again, as evidenced by the certificate
of service). Id. § 22.07(c). In order to account for variations in the
delivery of U.S. mail (the only means, to our knowledge, by which
“certified mail” may be delivered), the rules provide that when an ini-
tial decision is served by “mail,” five days are added to the twenty
days allowed by the rules within which to perfect an appeal. See id.

The Assistant Regional Counsel does not (and cannot, in our
view) contend that he was served with the initial decision by “mail”
within the meaning of § 22.07(c). Rather, the Assistant Regional
Counsel appears to urge the Board to adopt a rule whereby the date
of receipt of an initial decision triggers the twenty-day appeal period,
when the initial decision is served via interoffice mail. We conclude
that such a rule is untenable, and would contravene the primary aim
of the “computation of time” rules governing appeals to the Board,
which is to provide the parties and the Board with certainty in deter-
mining when obligations must be fulfilled. The rules were intended to
avert the very uncertainty that would be engendered by looking to
each party’s internal operations to determine when an initial decision
was received by counsel for that party.° We instead conclude that it is
reasonable to construe interoffice mail delivery as a type of service
made “personally” as that term is used in 40 C.F.R. § 22.06; service is
therefore determined by examining the date upon which the Regional
Hearing Clerk certifies that the item was placed in interoffice mail.

We recognize that the term “personal service” is somewhat
ambiguous as it relates to service of documents within Region V and
other Regions, since interoffice mail systems are commonly used by
Regional Hearing Clerks to serve documents within the Regional
Offices, rather than hand-delivering documents to specific individuals.
Thus, if we were to construe “personal service” to mean only indi-
vidual hand-delivery from the Regional Hearing Clerk directly to the
Regional attorney, then service (within the meaning of § 22.06) can
never take place under such circumstances since interoffice mail
involves handling by intermediaries. Moreover, if decisions issued by
Regional Hearing Clerks are considered served only upon receipt by
a Regional attorney, as the Region suggests, then there is no inde-
pendently ascertainable date of service, in contravention of the intent

© OMC correctly points out that the Administrator has previously held that variations in par-
ties’ internal operations are not an appropriate basis for waiving the requirements for perfecting
an appeal. See In re Georgetown Steel Corp., 3 E.A.D. 607, 609-10 (Adm’r 1991).

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198 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

of the rules, as discussed above. Thus, the only reasonable interpre-
tation of “personal service” for documents sent by the Regional
Hearing Clerks to a Regional attorney through interoffice mail systems
is that service of such documents is deemed complete upon being
placed in interoffice mail, as documented by the Regional Hearing
Clerk on the certificate of service.

The certificate of service for the initial decision in this case (the
veracity of which is not disputed by the Region) indicates that it was
served upon the Assistant Regional Counsel by interoffice mail on
August 3, 1995. The Region’s notice of appeal and motion for exten-
sion of time were received by the Board on August 24, 1995, twenty-
one days after service of the initial decision; they are therefore
untimely. The Region has identified no “extraordinary circumstances”
that would justify any waiver of the twenty-day deadline in this case.’

We note that this result could have been easily forestalled by the
Region. Because the Region assumed a time computation that is not
clearly contemplated by the Consolidated Rules of Procedure, it acted
at its peril in delaying to file the notice of appeal and motion. Had it
filed one day earlier, the appeal would have been timely, albeit gross-
ly incomplete.

In accordance with the foregoing, Region V’s notice of appeal is
hereby dismissed. Region V’s motion for an extension of time to file
its brief and other appeal documents is hereby denied.*

So ordered.

” 40 C.F.R. § 22.07(b) provides that motions for an extension of time “shall be filed i
advance of the date’ on which the document for which an extension is sought is due, unless
the moving party establishes “excusable neglect” for its failure to make timely motion. The
Region’s motion for an extension of time was served the day after the final day on which an
appeal could be perfected, and the Region does not assert any grounds for finding “excusable
neglect” in its failure to file earlier.

• In future cases, when a Region wants to ensure that it has the full benefit of the twenty-
  day filing period, the Regional attorney may wish to make arrangements with the Regional
  Hearing Clerk to obtain a copy of the initial decision immediately upon issuance (e.g. by pick-
  ing it up in person or having it faxed) rather than simply awaiting its arrival by interoffice mail.

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