Tri-County Builders Supply (Board decision, May 24, 2004)

Plain-English summary

An Administrative Law Judge assessed Tri-County Builders Supply a $59,591 civil penalty for applying sewage sludge to land at a rate above the applicable agronomic rate. Tri-County argued that the biosolids application did not exceed the rate and that no penalty should be imposed. The Environmental Appeals Board dismissed the appeal as untimely because Tri-County filed with the Regional Hearing Clerk instead of the Board and did not file with the Board until nearly four weeks after the deadline. The earlier penalty decision therefore remained in place.

Decision snapshot

• Cited authorities: 33 U.S.C. § 1345(e); 40 C.F.R. §§ 22.7, 22.27(c), 22.30(a), and 503.11(b); 40 C.F.R. § 1.25(e)(1).
• Outcome: The appeal was dismissed on timeliness grounds, leaving the Initial Decision undisturbed.
• Key point: Appeals must be filed with the EAB within the regulatory deadline, and a filing error without special circumstances will not excuse lateness.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.
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In re:
Tri-County Builders Supply
Docket No. CWA-9-2000-0008

CWA Appeal No. 03-04

ORDER DISMISSING APPEAL
I.

INTRODUCTION

Appellant, Tri-County Builders Supply (“Tri-County”), appeals an Initial Decision issued by the Administrative Law Judge Carl C. Charneski (“ALJ”) imposing upon Tri-County a civil penalty of
$59,591 for violations of section 405(e) of the Clean Water Act (“CWA”), 33 U.S.C. § 1345(e), and its implementing regulations.1 The ALJ found that Tri-County had violated some of the provisions of the sewage sludge regulations promulgated in part 503 of 40 C.F.R.

In

particular,

the

ALJ

found

Tri-County

liable

for

violating 40 C.F.R. section 503.14(d) in that Tri-County applied sewage sludge (or “biosolids”) to land in Rancho Canada Larga,

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The Complainant, U.S. Environmental Protection Agency Region IX (the “Region”), proposed that a civil penalty in the amount of
$137,500 be assessed against Tri-County.

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leased by Tri-County and located in Ventura County, California, at a rate grater than the applicable agronomic rate.2

Tri-County claims on appeal that the application of biosolids did not exceed the agronomic rate for a reclamation site, and that no penalty should have been assessed.

For

the

reasons

set

forth

below

Tri-County’s

appeal

is

dismissed on procedural grounds.

II.

DISCUSSION

Tri-County’s appeal is untimely.

The Initial Decision in the

present case was served by mail on the parties on May 19, 2003. According to 40 C.F.R. § 22.30(a), parties seeking review of an order or ruling by the Presiding Officer have thirty (30) days after the initial decision has been served to file an appeal with the Environmental Appeals Board (the “Board”).

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Persons seeking to

The Standards for the Use or Disposal of Sewage Sludge, 40 C.F.R. part 503, define the term “agronomic rate” as “the whole sludge application rate (dry weight basis) designed: (1) To provide the amount of nitrogen needed by the food crop, feed crop, fiber crop, cover crop, or vegetation grown on the land; and (2) To minimize the amount of nitrogen in the sewage sludge that passes below the root zone of the crop or vegetation grown on the land to the ground water.” 40 C.F.R. § 503.11(b).

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appeal an initial decision that has been served by mail have five (5) additional days to complete the filing.

40 C.F.R. § 22.7.

Under section 22.30(a), an appeal from an initial decision is perfected by filing a notice of appeal and an appellate brief with the Board.

See 40 C.F.R. § 22.30(a).

Section 22.30(a) provides

further that a copy of any document filed with the Clerk of the Board shall also be served on the Regional Hearing Clerk, the Presiding Officer, and any other participant parties.
§ 22.30(a).3

40 C.F.R.

Also, the Initial Decision here included a paragraph

citing to section 22.30 and indicating that an appeal of the initial decision needed to be taken to the Board.

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Section 22.30 states: “Within 30 days after the initial decision is served, any party may appeal any adverse order or ruling of the Presiding Officer by filing an original and one copy of a notice of appeal and an accompanying appellate brief with the Environmental Appeals Board. * * *. One copy of any document filed with the Clerk of the Board shall also be served on the Regional Hearing Clerk.” 40 C.F.R. 22.30(a)(1) (emphasis added). Also, section 22.27 reads in pertinent part: The initial decision of the Presiding Officer shall become a final order 45 days after its service upon the parties and without further proceedings unless:

(2) A party appeals the initial decision to the Environmental Appeals Board 40 C.F.R. § 22.27(c) (emphasis added).

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Pursuant to sections 22.30(a) and 22.7, the Appellant in this case had until June 23, 2003, to file its notice of appeal and appeal brief with the Board, and to serve the same documents on the ALJ, Complainant, and the Regional Hearing Clerk.

On June 17,

2003, the Appellant sent copies of the notice and appeal brief to the Complainant and the ALJ during the 30-day filing period, and filed the originals with the Regional Hearing Clerk.

See Letter

from Wendy Zimmerman-Taylor, McCord & Praver to Danielle CarrRegional Hearing Clerk dated June 17, 2003 (“Enclosed for filing are the following documents * * *.”).

As per the Appellant’s

request, the Regional Hearing Clerk sent a stamped copy to Taylor, McCord & Praver, Tri-County’s attorneys, which Taylor, McCord & Praver received on June 23, 2003, the last day for filing an appeal with the Board.4

It was not until July 17, 2003, however, that Tri-County filed its

appeal

deadline.5

with

the

Board,

almost

four

(4)

weeks

after

the

In the cover letter accompanying the filing, the

Appellant explains that the original notice of appeal and brief were filed with Danielle Carr, Region IX’s Hearing Clerk, and that

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We note at this juncture that the Regional Hearing Clerk is not authorized and never has been authorized to accept filings on behalf of the Board. 5

The Regional Hearing Clerk also forwarded the original filing to the Board, which the Board received on July 21, 2003.

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“the failure to file the brief with [the Board] was a clerical error.”

Appellant provides no further explanation for the late

filing nor does it elaborate on its “clerical error.”

We note in

this regard that the certificate of service in the original appeal does not even include the Board on the service list.

The Board typically requires strict compliance with the time limits set forth in the rules of practice governing penalty appeals.

In re Roger Antkiewicz & Pest Elimination Prod. of Am.,

Inc., 8 E.A.D. 218, 220 n.2 (EAB 1999).

The Board has stated on

numerous occasions that it will not excuse a late-filed appeal unless it finds special circumstances to justify the untimeliness. In re B&L Plating, Inc., slip. op at 11, CAA Appeal No. 02-08 (EAB Oct. 20, 2003), 11 E.A.D. __ (dismissing late appeal; appeal did not provide explanation for the late filing and Board did not find any “special circumstance” warranting relaxation of the procedural deadline).

See also In re Gary Dev. Co., 6 E.A.D. 526, 529 (EAB

1996); In re Outboard Marine Corp., 6 E.A.D 194, 196 (EAB 1995); In re Prod. Plated Plastics, Inc., 5 E.A.D. 101, 104 (EAB 1994); In re B & B Wrecking & Excavating, Inc., 4 E.A.D. 16, 17 (EAB 1992).

Special circumstances have been found to exist, for example, where the Agency has given erroneous filing information in writing upon which a petitioner has relied.

See, e.g., In re BASF Corp.

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Chem. Div., 2 E.A.D. 925 (Adm’r Reilly 1989). not the case here.

This certainly is

In the instant case Appellant received clear

notice regarding where to file its appeal.

The Initial Decision

clearly stated: “Unless the appeal is taken to the Environmental Appeals Board pursuant to 40 C.F.R. [§] 22.30, or unless a party acts pursuant to 40 C.F.R. [§] 22.27(c), this decision shall become a Final Order as provided in 40 C.F.R. [§] 22.27(c).” Decision at 22 (emphasis added).

Initial

The Initial Decision not only

identified the Board as the entity to which appeals are to be taken, but also cited to the appropriate regulation, which in turn specifies that appeals need to be filed with the Board within thirty (30) days of service of the Initial Decision.

In In re Genesee Power Station, 4 E.A.D. 832 (EAB 1993), the Board accepted a late-filed appeal that, like the one at hand, had been filed with the Region, instead of the Board, within the thirty-day appeal period.

That appeal, however, centered on an

allegation of “environmental racism.” In view of the nature of the allegation and the critical national policy issues it implicated, the Board found special circumstances warranting it to exercise its discretion to accept the appeal notwithstanding the filing error. It bears noting that, beyond the particular petition at issue, in Genesee a number of other petitions for review had been filed with the Board concerning the same permit. Thus, rejection of the late-

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filed

petition

would

neither

have

disposed

of

the

case

nor

materially affected the Board’s resource investment in the case.

On

its

face,

the

case

before

us

presents

no

special

circumstances of the kind the Board considered in Genesee. Indeed, Tri-County did not identify any national policy issues or other justification in its letter apologizing for the late filing.

The filing requirements specified in 40 C.F.R. §22.30 are not merely procedural niceties.

Rather, they serve an important role

in helping to bring repose and certainty to the administrative enforcement

process.

Further,

they

ensure

that

the

Board’s

resources are reserved for those cases involving both important issues and serious and attentive litigants.

Tri-County, which we note is represented by counsel, is charged with knowledge of the regulations and the instructions in the Initial Decision clearly pointing to the relevant regulations and the appropriate venue for filing. Tri-County’s appeal is dismissed.

In light of all the above,

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III.

CONCLUSION

Tri-County has not identified any “special circumstance” justifying the untimely appeal; the only explanation provided by Tri-County -– a clerical error -– is neither extraordinary nor an adequate basis for accepting a late-filed appeal in a system that depends on and demands vigilance.

Tri County’s appeal is

accordingly dismissed on timeliness grounds.

So ordered this

24

day of May 2004.6

ENVIRONMENTAL APPEALS BOARD
By:

/s/
Scott C. Fulton
Environmental Appeals Judge

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The three-member panel deciding this matter is comprised of Environmental Appeals Judges Scott C. Fulton, Ronald L. McCallum, and Edward E. Reich. See 40 C.F.R. § 1.25(e)(1).

CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Order Dismissing Appeal in the matter of Tri-County Builders Supply, CWA Appeal No. 03-04, were sent to the following persons in the manner indicated: By First Class Mail Postage Prepaid: Robert L. McCord Jr., Esq. Taylor & McCord & Praver 721 East Main Street P.O. Box 1477 Ventura, California 93002 By Pouch Mail: Danielle Carr Regional Hearing Clerk Office of Regional Counsel U.S. EPA Region IX 75 Hawthorne Street San Francisco, CA 94105-3901 Judge Carl C. Charneski Office of Administrative Law Judges (1900L) Ariel Rios Building 1200 Pennsylvania Avenue N.W. Washington, D.C. 20460 Marcela von Vacano, Esq. Assistant Regional Counsel U.S. EPA Region IX (ORC-2) 75 Hawthorne Street San Francisco, CA 94105-3901 Dated:

May 24, 2004

/s/
Annette Duncan
Secretary