Spitzer Great Lakes Ltd. Co.

Plain-English summary

Spitzer Great Lakes, Ltd. appealed an initial decision assessing a $165,000 penalty for violations involving the use and storage of PCBs and PCB items. The initial decision was served on February 3, 1997, and the EAB held that an appeal had to be filed within 20 days after service, with five additional days because service was by mail. The deadline was February 28, 1997, but Spitzer filed its appeal on March 20, 1997. The Board rejected Spitzer's argument that the 45-day period for an initial decision to become final gave it 45 days to appeal and dismissed the appeal as untimely.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.07(c), 22.27(c), and 22.30(a); the order also discusses §§ 22.16, 22.17, and 22.30.
• Outcome: Procedural. The TSCA appeal was dismissed as untimely.
• Key point: The 45-day period for an initial decision to become final did not extend the separate 20-day deadline for filing an appeal.

Full text (EPA EAB public release)

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

In the Matter of:

Spitzer Great Lakes, Ltd. Co. I TSCA Appeal No. 97-4
\
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ORDER DISMISSING APPEAL
On March 20, 1997, Spitzer Great Lakes, Ltd., Company

("Spitzer") filed an appeal from an initial decision served on

February 3, 1997, assessing a $165,000 penalty against Spitzer
for numerous violations of the regulations pertaining to the use

and storage of PCBs and PCB items. U.S. EPA Region V filed a
motion to dismiss this appeal on the grounds that it is untimely.

For the reasons that follow, the Region's motion is granted.
The certificate of service accompanying the initial decision
in this matter indicates that the initial decision was served

upon the parties on February 3, 1997.' Under the applicable
Consolidated Rules of Practice, 40 C.F.R. Part 22, any appeal
from that initial decision had to be filed "within twenty (20)

days after the initial decision [was] served upon the parties."

40 C.F.R. 5 22.30(a). Because the initial decision was served
upon Spitzer by mail, five days are added to Spitzer's twenty-day

appeal period. 40 C.F.R. § 22.07(c). Applying these rules here,
the deadline for Spitzer to file an appeal from the initial

decision served by mail on February 3, 1997, was February 28,

 'See 40 C.F.R. § 22.07(c) ("Service of all other pleadings

and documents is complete upon mailing.").
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1997. Spitzer's notice of appeal, however, was not filed with

the Board until March 20, 1997, and it is therefore untimely.

    Spitzer argues that its appeal is timely because it was

filed on the forty-fifth day after the initial decision was

served, and the presiding officer indicated in the initial

decision that "the decision would become final within forty-five

days from the date of service unless an appeal was taken to the
Environmental Appeals Board." Brief of Respondent-Appellant's
Spitzer Great Lakes at 2. Actually, what the presiding officer
said was:

    Pursuant to 40 C.F.R. 5 22.27(c), this initial decision
    shall become the final order of the Environmental
    Appeals Board within forty-five (45) days after its
    service upon the parties and without further proceeding
    unless (1) an appeal to the EnTJironmental Appeals Board
    is taken from it by a party to this proceeding or (2)
    the Environmental Appeals Board elects, sua sponte, to
    review this initial decision.

Initial Decision at 16. Apparently, Spitzer construed this
language to mean that it had forty-five days to file an appeal.

    Spitzer's argument lacks merit.    In addressing a similar

claim based upon similar language in an initial decision, we

explained:

    The above-quoted statement merely specifies the period
    of time (45 days) that it takes for [an initial
    decision1 to become a final decision in the absence of
    an appeal (or sua sponte review). While the statement
    can be faulted for not divulging the time period for
    perfecting an appeal (20 days), which is the more
    pertinent time period from the perspective of a
    potential appellant, this dereliction is one of
    parsimony, not deception. Accordingly, we do not think
    that it is asking too much of a potential appellant to
    consult the rules themselves, to ensure an adequate and
     full understanding of the procedures for perfecting an
    appeal.   There, in Section 22.30, under the bold-face

heading, "[alppeal from or review of initial decision,"
the appellant will find the 20-day requirement in the
clearest of terms.

In re Production Plated Plastics, Inc., 5 E.A.D. 101, 103-104
(EAB 1994).2 See also The Environmental Appeals Board Practice

Manual at 17 n.65 (1994) ("The initial decision will become the

final agency decision after 45 days of service unless (1) an
appeal to the EAB is taken or (2) the EAB elects, sua sponte, to
review the initial decision. A pd-ty seeking to appeal must file
an appeal within 20 days of service of the initial

decision." ) (emphasis supplied) .3

 Spitzer's appeal was filed twenty days after the appeal

period expired. Spitzer advances no special circumstances

warranting a relaxation of the time for filing an appeal. See

Production Plated Plastics, 5 E.A.D. at 104. Accordingly, its

 "Nevertheless, as we explained in Production Plated

Plastics, "we strongly recommend that in future cases the
Regional Administrator should either expressly inform the parties
of the 20-day time period in Section 22.30, or, at least, make
specific reference to that section when informing the parties of
when a default order becomes final." 5 E.A.D. 104, n.4
(emphasis added). Although Production Plated Plastics involved a
default order issued by a Regional Administrator under 40 C.F.R.
§§ 22.16 and 22.17, the concern that prompted the recommendation
applies equally to initial decisions issued by presiding officers
under the Consolidated Rules. Therefore, in the future,
presiding officers are also urged to follow the recommendation.
3We note that from the inception of these proceedings
Spitzer has been advised that the Consolidated Rules of Practice,
40 C.F.R. Part 22, which include section 22.30, apply to these
proceedings. The cover letter to the complaint indicates that a
copy of those rules was enclosed with the complaint when it was
served upon Spitzer.
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untimely appeal is hereby dismissed.
So ordered.

                          ENVIRONMENTAL APPEALS BOARD

Dated:
w " "' 7 By' Ronald L: McCallum
Environmental Appeals Judge
 CERTIFICATE OF SERVICE

  I hereby certify that copies of the foregoing Order

Dismissing Appeal in the Matter of Spitzer Great Lakes, Ltd.,
Company, TSCA Appeal No. 97-4, were sent to the following persons
in the manner indicated:

Certified Mail, Anthony B. Giardini
Return Receipt Requested: Bradley & Giardini Co., L.P.A.
520 Broadway Avenue, 3rd Floor
Lorain, Ohio 44052

                            Richard R. Wagner
                            Associate Regional Counsel
                            U.S. EPA Region V
                            77 West Jackson Blvd.
                            Chicago, IL 60604-3590

Interoffice Mail: Bessie Hammiel
Headquarters Hearing Clerk (1900)

     APR I 6 1997

Dated:
Mildred T//Johnson
Secretary