Central Wayne Energy Recovery Limited Partnership (Board decision, February 26, 1998)

Plain-English summary

Sandra Yerman petitioned for review of a PSD permit issued for changes to a municipal waste incinerator in Dearborn Heights, Michigan. The Environmental Appeals Board calculated the filing deadline as December 29, 1997, including the additional three days for service by mail. The petition was received by EPA on January 2, 1998, so the Board dismissed it with prejudice as untimely. The Board rejected the argument that the permit notice and a conversation with EPA staff had misled the petitioner about the filing deadline.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19(a) and 124.20(d)
• Outcome: The petition was dismissed with prejudice as untimely.
• Key point: A petition is filed when received by the Board, not when placed in the mail, and the applicable filing deadline controlled.

Full text (EPA EAB public release)

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

)
In re: )
)
Central Wayne Energy Recovery ) PSD Appeal No. 98-1
Limited Partnership
)
Dearborn Heights, Michigan )
)
)

ORDER DISMISSING APPEAL

On November 24, 1997, the Michigan Department of

Environmental Quality ("MDEQ") issued a Prevention of Significant

Deterioration ("PSD") permit approving certain changes to an

existing municipal waste incinerator in Dearborn Heights,

Michigan. The permit was actually issued on October 30, 1997,

and was then revised on November 24, 1997. Sandra Yerman, a

resident of Romulus, Michigan, filed a petition for review with

the Board objecting to the permit. The petition arrived at EPA

headquarters on January 2, 1998, and was received by the Board on

January 5, 1998.

Under 40 C.F.R. § 124.19(a), a petition for review must be

filed within 30 days of service of notice of a final permit

decision. In addition, where the final permit decision is served

by mail, "three (3) days shall be added to the prescribed time."

40 C.F.R. § 124.20(d). The final permit decision in the present

case was served on petitioner by mail no later than November 26,
 2

1997.1 The deadline for filing a petition for review with the

Board was therefore December 29, 1997 (30 days + 3 days).

In order to be considered timely filed a petition for review

must be received by the filing deadline. See In re Envotech,

L.P., UIC Appeal Nos. 95-2 through 95-37, slip op. at 7 (EAB,

Feb. 15, 1996), 6 E.A.D. ___; In re Heritage Environmental

Services, Inc., RCRA Appeal No. 93-8 at 4 (EAB, Aug. 3, 1994)

(Order Dismissing Appeal); In re Robbins Resource Recovery

Company, 3 E.A.D. 648, 651 (Adm’r 1991). Thus, simply placing a

document in the mail does not constitute filing. Although a

document can be "served" on opposing parties by placing it in the

mail, it is not "filed" until it is received by the Board.

Because it did not appear as if the petition in the present case

was received by the December 29, 1997 filing deadline, the Board

ordered petitioner (Sandra Yerman) to show cause why her petition

should not be dismissed as untimely. See Order to Show Cause Why

Petition Should Not Be Dismissed As Untimely ("Show Cause Order")

(Jan. 16, 1998).

In her reply to the Show Cause Order dated February 19,

1998,2 petitioner does not dispute that the filing deadline for a

1
See Response of the Michigan Department of Environmental Quality Regarding the Timeliness of Ms. Sandra Yerman’s Appeal Petition, PSD Appeal No. 98-1 (Feb. 20, 1988); letter accompanying final permit from Dennis M. Drake, Air Quality Division, MDEQ, to "Interested Party" (Nov. 24, 1997).
2
See Show Cause Why Petition for Review Should not be Dismissed as Untimely ("Petitioner’s Response to Show Cause 3

petition for review in this case was December 29, 1997, or that

the petition was not received by EPA until January 2, 1998.

Rather, petitioner states that her petition should be considered

timely because despite conversations with individuals from MDEQ

and U.S. EPA Region V, the petitioner was never told that a

petition for review had to be received by the filing deadline.

Further, petitioner states that although the letter accompanying

the final permit referenced the appeal provisions of 40 C.F.R.

§ 124.19, the letter made no reference to the provisions of 40

C.F.R. § 124.20 ("Computation of time") and was therefore

misleading. After reviewing the record before us, we conclude

that the petition was indeed untimely and must therefore be

dismissed with prejudice.

The letter accompanying the final permit stated, in part,

that the permit would become effective on December 29, 1997, and

that "[a]nyone who submitted a comment during the comment period

may appeal this decision according to the procedures contained in

40 CFR 124.19 * * *." Pursuant to 40 C.F.R. § 124.19(a), a

petition for review must be filed within 30 days after service of

a final permit decision. Absent the additional three days for

service by mail (40 C.F.R. § 124.20(d)), this time period would

have expired on December 26, 1997. As previously stated,

Order"). Both MDEQ and the permittee, Central Wayne Energy
Recovery Limited Partnership, have also filed replies to the
Board’s Show Cause Order in which they state that the petition
should be dismissed as untimely.
 4

however, this time period was extended to December 29 pursuant to

40 C.F.R. § 120.20(d). Although petitioner is correct that the

November 24 letter did not expressly reference the computation of

time provisions in 40 C.F.R. § 124.20, because the letter (along

with the revised permit) was served by mail petitioner was

nonetheless provided with the additional time required by that

section.3 In other words, the failure of MDEQ to mention 40

C.F.R. § 124.20 in no way prejudiced petitioner because MDEQ gave

her more time to file than the 30 days referenced in 40 C.F.R.

§ 124.19. We therefore find no support for petitioner’s

assertion that she was misled in any way regarding the time

period for filing her petition for review.

Similarly, we find no support for petitioner’s assertion

that she was misled in a conversation with a Region V employee

(Keary Cragan). Petitioner states:

I called the EPA in Chicago, on December 23, 1997, * * * and talked to Keary Cragan. MS. CRAGAN ALSO DID NOT TELL ME THAT MY APPEAL HAD TO BE RECEIVED BY THE BOARD BY DECEMBER 29, 1997; AND ALSO DID NOT TELL ME ABOUT THE MAILING INFORMATION CONTAINED IN 40 C.F.R.
124.20! In addition, Ms. Cragan gave me the name of an attorney that could possibly help me, * * * but said, because of the holidays, I probably could not get in contact with her, until Monday, December 29, 1997!
AGAIN, GIVING ME THE FALSE IMPRESSION, THAT I HAD UNTIL

3
We note that the letter accompanying the original permit, which petitioner has acknowledged receiving, did make reference to 40 C.F.R. § 124.20. In particular, that letter stated that "[t]he final permit decision shall become effective on December 3, 1997, as required by 40 CFR 124.15 and 124.20." Letter from Dennis M. Drake, Air Quality Division, MDEQ, to "Interested Party" (October 30, 1997).
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THE 29TH!

Petitioner’s Response to Show Cause Order at 2 (emphasis in

original). We find nothing that can be characterized as

misleading in this communication. In any event, a petition

received on the 29th would have been timely; however, a petition

received on January 2, 1998, is not.

The Board generally tries to construe petitions filed by

persons unrepresented by counsel in a light most favorable to the

petitioner, and does not expect that such petitions will conform

to exacting and technical pleading requirements. In re SEI

Birchwood, 5 E.A.D. 25, 27 (EAB 1994). Nevertheless, a

petitioner "who elects to appear pro se takes upon himself or

herself the responsibility for complying with the procedural

rules and may suffer adverse consequences in the event of

noncompliance." In re Rybond, Inc., RCRA (3008) Appeal No. 95-3,

slip op. at 20 (EAB, Nov. 8, 1996), 6 E.A.D. ___. If a

petitioner has any doubts regarding the applicable filing

requirements, he or she should either employ their own legal

counsel to resolve these doubts or err on the side of caution by

filing early.

Because the petition for review in this case was not

received by the Board by the December 29, 1997 filing deadline,

the petition is hereby dismissed with prejudice as untimely.

See, e.g., In re Williams Pipe Line Company and L&C Services,

Inc., CAA Appeal No. 97-3 (EAB, Feb. 27, 1997) (Order Dismissing
 6

Appeal) (dismissing with prejudice as untimely an appeal filed by

U.S. EPA Region VII because the appeal was not received by the

Board by the filing deadline); In re Outboard Marine Corp.,

CERCLA Penalty Appeal No. 95-1 (EAB, October 11, 1995), 6 E.A.D.

___ (dismissing as untimely an appeal filed by U.S. EPA Region V

because the appeal was received by the Board one day after the

filing deadline).

So ordered.

Dated: 2/26/98
ENVIRONMENTAL APPEALS BOARD

By: /s/
Kathie A. Stein
Environmental Appeals Judge
 CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Dismissing Appeal in the matter of Central Wayne Energy Recovery Limited Partnership, Dearborn Heights, Michigan, PSD Appeal No.
98-1, were sent to the following persons in the manner indicated:

First Class Mail,
Postage Prepaid:

Sandra Yerman
15421 Colbert
Romulus, MI 48174

Paul F. Novak (P39524)
Assistant Attorney General
Natural Resources Division
Suite 315, Knapps Building
300 S. Washington Square
Lansing, MI 48913

Deborah E. Jennings
Julie R. Domike
Piper & Marbury L.L.P.
1200 Nineteenth St., N.W.
Washington, D.C. 20036

Dated: 2/26/98
/s/
Annette Duncan
Secretary