Build-It Bros., L.L.C. (Board decision, March 18, 2021)

Plain-English summary

The Environmental Appeals Board had elected to review a Default Order against Build-It Bros., L.L.C. on its own initiative because of concerns about service of the Motion for Default and the Default Order. EPA later submitted a response and supporting materials addressing service, and the respondent did not file a response. The Board concluded that the materials resolved its service concerns and vacated the order electing sua sponte review. The Default Order would become a final order 45 days after service of this order under 40 C.F.R. § 22.27(c). This order addressed review procedure and did not restate the underlying TSCA allegations or penalty.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.5(b)(1) and 22.27(c)
• Outcome: The order electing sua sponte review was vacated, and the Default Order was set to become final 45 days after service.
• Key point: After reviewing service documentation, the Board may vacate a sua sponte review order and allow a Default Order to become final.

Full text (EPA EAB public release)

                                                                                 F I L E D
                                                                                    Mar 18, 2021
                                                                               Clerk, Environmental Appeals Board
                   ENVIRONMENTAL APPEALS BOARD        INITIALS ________________________
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C.

In re: )
)
Build-It Bros., L.L.C. ) TSCA Appeal No. 20-06
)
Docket No. TSCA-01-2019-0055 )
)
)

ORDER VACATING ORDER ELECTING TO EXERCISE SUA SPONTE REVIEW

      On February 9, 2021, the Environmental Appeals Board (“Board”) issued an order

electing to exercise sua sponte review in the above-captioned matter. While the complaint in this

matter was properly served upon Build-It. Bros., L.L.C. (“Respondent”) pursuant to 40 C.F.R.

§ 22.5(b)(1), see Motion and Memorandum in Support of Motion for Default 2, ex. 2 (July 14,

2020) (return receipt for complaint), the Board’s sua sponte order noted concerns about service

of the Motion and Memorandum for Default (collectively, “Motion for Default”) and the Initial

Decision and Default Order (collectively, “Default Order”) on Respondent.1 Order Electing to

Exercise Sua Sponte Review and Establishing Briefing Schedule (Feb. 9, 2021). As a result, the

Board established a briefing schedule for the Region to file a brief, including any supporting

      1
      On January 21, 2021, the Board ordered re-service of the Default Order due to apparent

anomalies in the Default Order’s certificate of service. Order Directing Re-Service of Initial Decision and Default Order (Jan. 21, 2021). The Region re-served the Default Order by mail on January 25, 2021. See Certificate of Service (Jan. 25, 2021) (certificate of service accompanying re-served default order). The Board’s subsequent order electing sua sponte review pertained to the re-service of the Default Order. Order Electing to Exercise Sua Sponte Review and Establishing Briefing Schedule 2-3 (Feb. 9, 2021). documentation, addressing whether service of the Motion for Default and the Default Order upon

Respondent was adequate and met applicable regulatory requirements. Id. at 3. The order,

served on the Respondent, provided him the opportunity to file a brief responding to the

Region’s brief addressing service on or before February 25, 2021. Id.

     On February 18, 2021, the Region filed its response to the Board’s order addressing

service of the Motion for Default and Default Order.2 EPA Response to Environmental Appeals

Board Order Electing to Exercise Sua Sponte Review and Establishing Briefing Schedule (Feb.

18, 2021). Respondent did not file a response to the Region’s brief. In light of the brief and

supporting materials submitted by the Region regarding service of the Motion for Default and the

Default Order, the Board vacates its order electing sua sponte review. Accordingly, and pursuant

to 40 C.F.R. § 22.27(c), the Default Order will become a final order 45 days after service of this

order.

     So ordered.3


                                                 ENVIRONMENTAL APPEALS BOARD




     Mar 18, 2021

Dated: ____ By: ____
Aaron P. Avila
Environmental Appeals Judge

     2
      On March 5, 2021, the Region filed documentation showing that its response to the

Board’s sua sponte order was delivered to Respondent on February 19, 2021. USPS Tracking Data for February 18, 2021 EPA Response to EAB Order for Sua Sponte Review, attach. 1 (Mar. 5, 2021).
3
The three-member panel deciding this matter consists of Environmental Appeals Judges
Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.

                                           -2-

CERTIFICATE OF SERVICE

   I certify that copies of the foregoing Order Vacating Order Electing to Exercise Sua

Sponte Review in the matter of Build-It Bros., LLC, TSCA Appeal No. 20-06, were sent to the following persons in the manner indicated.

By Email:

David Magee
38 Mussey Road
Scarborough, ME 04074
[email protected]

Hugh Martinez
Senior Enforcement Counsel
U.S. EPA Region 1
5 Post Office Square, Suite 100
Mail Code: 04-3
Boston, MA 02109-3912
[email protected]

Regional Judicial and Presiding Officer LeAnn Jensen
Paralegal/Regional Hearing Clerk Wanda Santiago
5 Post Office Square, Suite 100
Mail Code: ORC 4-6
Boston, MA 02109-3912
[email protected]
[email protected]
[email protected]

        Mar 18, 2021

Dated: ____ _____
Eurika Durr
Clerk of the Board

                                        -3-