been properly preserved, petitioners have not identified either a clear factual or legal error or an important policy consideration or exercise of discretion that should be reviewed. Review of this issue is therefore denied. The Trial Burn Plan: Petitioners believe that the handling and incineration of nitroglycerin at the proposed facility once operational will pose a threat to human health and the environment. As evidence, Petitioners point out that, to minimize risk to the public, the independent third parties who will conduct the trial burn for the incinerator will burn only a small fraction of the nitroglycerin that will be burned at any one time once the incinerator is fully operational. Petitioners argue that if it is too dangerous to burn the full amount of nitroglycerin during the trial burn, then it is too dangerous to burn the full amount once the incinerator is operating at full capacity. In the permit application, Permittees explain that only a small amount of nitroglycerin will be burned at the trial burn because the trial burn will be conducted by untrained third parties over whom Permittees have no control. Permittees refuse to assume the risk of harm to the public that might result if the full amount of nitroglycerin were burned at the trial burn. See Application/Permit Page 12-30(c) (quoted in Petition for Review, at 8). In its response to the petition, the Region notes that Petitioners' concerns about nitroglycerin focus on both the incinerator and the MU. The Region points out that the two units are separate, and that only the MU is permitted by EPA, whereas the incinerator is governed by the state-issued portion of the permit. The Region, therefore, addresses Petitioners' concerns only as they relate to the MU. The Region says that Atlas, AES' parent company, has been manufacturing nitroglycerin-based explosives for many years and has developed specific handling procedures and safety guidelines for that activity. The Region also points to several permit provisions designed to promote the safe handling of nitroglycerin and other reactive wastes. The Region states, moreover, that all personnel must be trained before performing hazardous waste treatment processes without supervision, and must follow the standards set out in the "DOD Contractor's Safety Manual for Ammunition and Explosives.” 40 CFR § 124.19(a) (emphasis added). Under Section 124.13, issues must be raised during the public comment period if they are "reasonably ascertainable." 40 CFR § 124.13. For the reasons outlined in the Region's response, we conclude that, with respect to this issue, Petitioners have not carried their burden of identifying either a clear factual or legal error or an important policy consideration or exercise of discretion that should be reviewed. Review of this issue is therefore denied. Miscellaneous Objections: Petitioners make the following objections about the MU operating procedures: (1) few, if any, of the specialized waste feed preparation activities to be carried out in the MU (e.g., de-fusing, pulling, sheering, punching, sawing) will be performed when the trial burn materials are prepared; (2) the permit does not require the permittee to demonstrate proficiency with each planned treatment procedure in the MU, even though the permittee has no historical experience with munitions disassembly; (3) the permit should require the permittee to deal with negative pressure, VOCs, or particulate emissions at the MU during the trial burn; and (4) the activities at the MU need far greater oversight than the permit requires. The last of these objections is too vague to sustain. As for the first three objections, the common theme is that the permittees should be required to conduct trial runs of the activities to be carried out inside the MU before the incinerator goes into full operation. The Region does not directly respond to the question of whether trial runs of these activities should be conducted. Instead, the Region essentially argues that such activities will be subject to regulations and permit conditions that will ensure protection of human health and the environment. With respect to Petitioners' concerns about air emissions, the Region points out that it is not necessary to have negative pressure in the MU since no explosions or burning will take place there, and that VOCs and particulate emissions will be controlled with activated carbon and particulate filters. After a review of the record, and based on the explanations contained in the Region's response, we conclude that the Region did not clearly err by failing to require trial runs for the activities to be conducted in the MU. We also conclude that Petitioners have not otherwise carried their burden of identifying either a clear factual or legal error or an important policy consideration or exercise of discretion that should be reviewed. Review of this issue is therefore denied. Policy Considerations: Petitioners urge review of the permit for the following "policy considerations”: (1) the facility is experimental; (2) EPA has never processed a permit for incineration of explosives of this nature; (3) the permittees lack experience with munitions and with incineration in general; (4) the permittee's owner, Atlas Powder Company, has an "abysmal" historical and environmental record at the same site; (5) there is no precedent for treating some of the waste streams under consideration here; (6) the geology of the site is unstable; and (7) the waste sampling area will be too close to the MU. The sixth and seventh of these "policy considerations" have been dealt with in earlier parts of this opinion. As for the rest, we believe that the Region has given them adequate consideration. With respect to the first concern, the Region rejects the description of the facility as "experimental," arguing that all of the treatment technologies to be used at the facility have been proven. With respect to the second concern, the Region argues that the permit as written is adequate to protect human health and the environment and that it is thus irrelevant that EPA has never processed or approved a permit for incineration of explosives of this nature. With respect to the third issue, relating to the permittees' alleged lack of expertise, the Region notes that the permittees have demonstrated through the permit application that they have sufficient expertise to incinerate reactive waste. With respect to the fourth issue, relating to Atlas Powder's alleged "abysmal" environmental record, the Region responds that there are no specific federal laws or regulations requiring consideration of the facility's past environmental record. The Region also notes that the MDNR does not consider AES to be a "habitual violator." Finally, with respect to the fifth issue, relating to the alleged lack of precedent for treating certain waste streams to be incinerated at the facility, the Region states that the facility will follow Department of Defense procedures for treating the permitted waste streams prior to incineration. Based on the Region's response, we conclude that none of Petitioners' concerns rises to the level of an important policy consideration justifying review under 40 CFR § 124.19(a). In summary, none of the bases set forth in the petition for review meets the threshold level for granting review, and the petition is accordingly denied. So ordered. IN THE MATTER OF B&B WRECKING AND TSCA Appeal No. 92-2 FINAL ORDER Decided April 23, 1992 Syllabus U.S. EPA Region V filed a complaint alleging that Respondent B & B Wrecking and Excavating, Inc. violated TSCA Section 15, 15 U.S.C. §2614, and the PCB disposal and marking regulations at 40 CFR Part 761. On January 23, 1992, the Presiding Officer issued a Default Order against B & B because B & B had not complied with a prehearing discovery order. B & B appealed the Default Order to the Environmental Appeals Board. Under the Consolidated Rules of Practice, B & B's deadline for filing an appeal was February 25, 1992, but B & B did not file its appeal until March 12, 1992. Held: The appeal is dismissed as untimely. L. Before Environmental Appeals Judges Ronald McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Per Curiam: This action arises under Section 16 of the Toxic Substances Control Act (TSCA), 15 U.S.C § 2615. U.S. EPA Region V filed a complaint alleging that Respondent B & B Wrecking and Excavating, Inc. (B&B) violated TSCA Section 15, 15 U.S.C. §2614, and the Polychlorinated Biphenyl (PCB) disposal and marking regulations at 40 CFR Part 761. The complaint proposed a total penalty of $29,000. On January 23, 1992, Administrative Law Judge Thomas B. Yost (Presiding Officer) issued a Default Order against B & B because B & B had not complied with a prehearing discovery order. The Default Order imposed a penalty of $29,000. B & B then filed a notice of appeal dated March 12, 1992. The Region filed a response brief, arguing in part that the appeal must be dismissed because it is untimely. We agree. A default order is an "initial decision." 40 CFR §22.17(b). An appeal of an initial decision must be filed with the Agency within 20 days after the initial decision has been served upon the parties. 40 CFR § 22.30(a). Region V's Regional Hearing Clerk received the Default Order from the Presiding Officer on January 30, 1992, and served it on the parties by certified mail the next day, January 31, 1992. Accordingly, B & B's deadline for filing an appeal was February 25, 1992 (adding five days to the appeal period because the Default Order was served upon the parties by mail, see 40 CFR § 22.07(c)). B & B did not file its appeal until March 12, 1992, 16 days after the period for filing an appeal had expired. The time requirements for appeals must be followed unless special circumstances warrant relaxation. Cypress Aviation, Inc., RCRA (3008) Appeal 91-6, at 2 (CJO, January 8, 1992) (dismissing appeal that was filed 24 days after appeal period had expired). B & B has failed to identify any such special circumstances in this case, and has in fact given no explanation at all for missing the filing deadline. Its appeal is therefore dismissed as untimely. B & B is hereby ordered to pay the full amount assessed in the Default Order ($29,000) within sixty (60) days after receipt of this order unless otherwise agreed by the parties. Payment shall be made by forwarding a cashier's check or certified check, payable to the Treasurer, United States of America to: U.S. EPA-Region V, So ordered. |