TRA Industries, Inc., a/k/a/ Huntwood Industries, Inc.

Plain-English summary

TRA Industries, also known as Huntwood Industries, appealed an Initial Decision assessing a $19,797 administrative penalty for EPCRA reporting violations. The Initial Decision required an appeal to be filed with the EAB within 20 days after service, with additional time for service by mail. Huntwood sent its notice to the Regional Hearing Clerk instead of the EAB, and the Board received the forwarded documents two days after the deadline. The Board dismissed the appeal as untimely and ordered Huntwood to pay the $19,797 penalty within 60 days after receiving the order.

Decision snapshot

• Cited authorities: 42 U.S.C. § 11023(a), 40 C.F.R. § 22.30(a)(1), 40 C.F.R. § 22.07(c), and 40 C.F.R. § 22.07(a).
• Outcome: The appeal was dismissed as untimely, and payment of the $19,797 penalty was ordered.
• Key point: An appeal must be filed with the EAB within the regulatory deadline. Filing with the Regional Hearing Clerk does not perfect the appeal.

Full text (EPA EAB public release)

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


                             )

In re: )
)
TRA Industries, Inc. )
a/k/a/ Huntwood Industries, Inc. ) EPCRA Appeal No. 96-2
)
Docket No. EPCRA 1093-11-05-325 )
)

                  ORDER DISMISSING APPEAL

Respondent, TRA Industries, a/k/a Huntwood Industries, Inc.

("Huntwood"), appeals from an Initial Decision issued by
Administrative Law Judge Carl C. Charneski ("Presiding Officer").
The Initial Decision dated October 11, 1996, assesses an
administrative penalty of $19,797 for violation of Title III of the
Superfund Amendments and Reauthorization Act, 42 U.S.C. §
11001 et seq., also known as the Emergency Planning and Community
Right to Know Act of 1986 ("EPCRA").

The complaint in this matter was filed on November 29, 1993,

by the chief of the Pesticides and Toxic Substances Branch, U.S.
EPA Region X. The complaint charged Huntwood with violating
EPCRA § 313(a), 42 U.S.C. § 11023(a), by failing to submit Toxic
Chemical Release Inventory Forms ("Form Rs") on six occasions
between 1990 and 1992, and sought civil penalties totaling
$26,745. On February 5, 1996, the Presiding Officer found
Huntwood liable for all but one of the alleged violations in an
accelerated decision dated February 5, 1996. See Order Granting
Motion for Accelerated Decision in Part. On October 11, 1996,
the Presiding Officer issued an Initial Decision assessing
penalties for all six counts alleged in the complaint, although in
reduced amounts than sought by the Region.¹ The Initial Decision
was served on counsel for Huntwood by certified mail,
return receipt requested, on October 15, 1996. The decision
stated that if Huntwood wished to file an appeal it must do so in
accordance with the procedures set forth at 40 C.F.R. § 22.30.
Initial Decision at 9 n.5.

 Section 22.30 states, in part, that any party may appeal an

adverse ruling "by filing a notice of appeal and an accompanying
appellate brief with the Environmental Appeals Board * * * within
twenty (20) days after the initial decision is served upon the
parties." 40 C.F.R. § 22.30(a)(1) (emphasis added). In addition
"[w]here 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). As
noted above, the Initial Decision in this case was served on the
parties by certified mail on October 15, 1996. Therefore, the

 1 At the hearing, Huntwood admitted liability to the sixth

count in the Region's complaint.

deadline for filing an appeal with the Board was November 12,
1996.²

 Despite the explicit filing instructions in 40 C.F.R.

§ 22.30 (referenced in the Initial Decision), Huntwood filed its
notice of appeal with the Regional Hearing Clerk rather than the
Environmental Appeals Board on or about November 8, 1996. On
Tuesday November 12, 1996, upon returning to work after the
Veteran's Day holiday, the Regional Hearing Clerk discussed the
matter with counsel for Huntwood and informed him that under the
applicable regulations the appeal must be filed with the
Environmental Appeals Board. Declaration of Mary Shillcut,
Regional Hearing Clerk, U.S. EPA Region X at 2 (November 21,
1996). The clerk agreed to forward Huntwood's appeal to the
Board, but also informed Huntwood's counsel that in order to
perfect the appeal Huntwood itself would have to file the
appropriate documents with the Board.³ Id. The Board did not
receive the forwarded appeal documents until November 14, 1996.

 2 Because the twenty-fifth day fell on a Saturday (November

9th) and the following Monday (November 11th) was Veteran's Day,
the deadline for filing the appeal was extended to the following
Tuesday. See 40 C.F.R. § 22.07(a) ("When a stated time expires
on a Saturday, Sunday or legal holiday, the stated time period
shall be extended to include the next business day.").

 3 As of this date, Huntwood has not filed an appeal with the

Board.

 The facts set forth above establish that Huntwood's appeal

is untimely. Despite the Presiding Officer's explicit reference
in his Initial Decision to the filing requirements set forth in
40 C.F.R. § 22.30, which clearly state that appeals must be filed
with the Environmental Appeals Board, counsel for Huntwood
erroneously mailed its notice of appeal to the Regional Hearing
Clerk. Although the Regional Hearing Clerk forwarded the appeal
to the Board, the appeal was not received by the Clerk of the
Board until two days after the filing deadline. As this Board
has previously stated:

 [W]e do not think that it is asking too much of a
 potential appellant to consult the rules * * * to
 ensure an adequate and full understanding of the
 process for perfecting an appeal. There, in Section
 22.30, under the bold-face heading, "Appeal from or
 review of initial decision," the appellant will find
 the [filing and the] 20-day requirement in the clearest
 of terms.

In re Production Plated Plastics, Inc., 5 E.A.D. 101, 103-04 (EAB
1994) (footnote omitted). Thus, as there are no special
circumstances, warranting a relaxation of the deadline for filing
an appeal, the appeal is hereby dismissed as untimely. See In re
Apex Microtechnology, Inc., EPCRA Appeal No. 93-2 (EAB, July 8,
1994) (Order Dismissing Appeal) (dismissing appeal as untimely
where the appeal was erroneously filed with the Regional Hearing

 4 See In re B&B Wrecking and Excavating, Inc., 4 E.A.D. 16,

17 (EAB 1992) ("The time requirements for appeals must be
followed unless special circumstances warrant relaxation.")
Huntwood has failed to identify any such special circumstances in
this case, and has in fact given no explanation as to why it
filed its appeal with the Regional Hearing Clerk rather than the
Board.

Clerk and was not received by the Board until after the filing
deadline).

Huntwood is hereby ordered to pay the full amount assessed

in the Initial Decision ($19,797) within sixty (60) days after
receipt of this order unless otherwise agreed upon by the
parties. Payment shall be made by forwarding a cashier's check
or certified check payable to the Treasurer, United States of
America, and mailed to:

       U.S. EPA Region X
       Regional Hearing Clerk
       P.O. Box 36903
       Pittsburgh, PA 15251-6309

So ordered.

Dated: 7/5/97 ENVIRONMENTAL APPEALS BOARD

                          By:            /s/
                                 Ronald L. McCallum
                           Environmental Appeals Judge


                 CERTIFICATE OF SERVICE

 I hereby certify that copies of the forgoing Order

Dismissing Appeal in the matter of TRA Industries, Inc., a/k/a/
Huntwood Industries, Inc., EPCRA Appeal No. 96-2, were sent to
the following persons in the manner indicated:

By Certified Mail
Return Receipt Requested:
Greg R. Tichy
Interstate Professional Center
15407 East Mission
Suite 425
Veradale, Washington 99037

                              Tim Hamlin
                              Assistant Regional Counsel
                              U.S. EPA, Region X
                              1200 Sixth Ave.
                              Seattle, Washington 98101

Dated: 7/25/97 /s/
Mildred T. Johnson
Secretary