As we read the petition, petitioner's principal concern appears to be that the permit provision does not ensure that the Aqualon shut-downs will be federally enforceable by the time Multitrade commences commercial operation of the facility. Petitioner is apparently disturbed by the possibility that, after 12 months, the permit would allow Multitrade to commence commercial operation even if the Aqualon shut-downs have not become federally enforceable. This is not a matter that can, or should, be rectified by us, for the plain terms of the settlement agreement clearly contemplate that possibility, and Specific Condition 34 merely mirrors the settlement agreement. Since EPA is not a party to the agreement, and in the absence of some reason for concluding that the permit is unlawful, petitioner's concern about federal enforceability does not provide any justification for reviewing the permit provision. For instance, petitioner has not shown or alleged any basis for believing that Multitrade's permit will violate federal law if the Aqualon shut-downs are not a federally enforceable condition to Multitrade's permit. (We note for the record that VDAPC is of the opinion, as expressed in its response to the petition, that the Aqualon shut-downs are federally enforceable, e.g., through the State Implementation Plan.) Nor has petitioner given us any other reason to review this permit provision. Accordingly, we conclude that Mr. Phillips' petition does not identify any factual or legal errors or any policy considerations or exercises of discretion that warrant review. His petition is therefore denied, and the permit is final for purposes of federal law.

So ordered.

not become federally enforceable within twelve (12) months after
the permit for the Facility has been changed in accordance with
Paragraph 1 of this Agreement.

(Quoted in VDAPC's Response, at 4.)

IN THE MATTER OF BETHLEHEM STEEL
CORPORATION

TSCA Appeal No. 92-1

FINAL DECISION

Decided May 12, 1992

Syllabus

The Environmental Protection Agency filed an administrative complaint against ethlehem Steel Corporation for the assessment of administrative penalties under 16(a) of the Toxic Substances Control Act, 15 U.S.C. §2615(a). On December 23, 91, Administrative Law Judge J. F. Greene granted Bethlehem Steel's motion to smiss the complaint as barred by the general statute of limitations at 28 U.S.C. 2462.

Held: In light of the recent decision in 3M Company (Minnesota Mining and anufacturing) TSCA Appeal No. 90-3 (CJO, February 28, 1992), holding that the e-year statute of limitations in 28 U.S.C. § 2462 does not apply to the assessment administrative penalties under TSCA, the Environmental Appeals Board reverses idge Greene's December 23, 1991 Order Granting Motion to Dismiss and reinstates e complaint.

Environmental Appeals

Judges

Before Ronald L. IcCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Per curiam:

This is an action for the assessment of administrative penalties ider § 16(a) of the Toxic Substances Control Act, 15 U.S.C. § 2615(a). PA Region III filed a complaint against Respondent Bethlehem Steel orporation, alleging that Bethlehem Steel had filed a false report violation of TSCA Section 15(3), which provides, inter alia, that shall be unlawful for any person

to fail or refuse to (A) establish or maintain records,
(B) submit reports, notices, or other information, or
(C) permit access to or copying of records, as required
by this chapter or a rule thereunder.

15 U.S.C. §2614(3). In its answer to the complaint, Respondent argued that the complaint is barred by the general statute of limitations at 28 U.S.C. §2462, because it was filed more than five years after the date upon which the erroneous report was submitted. Respondent also filed a motion to dismiss the complaint on the same ground. Administrative Law Judge J.F. Greene ("Presiding Officer") agreed that the complaint is barred by the statute of limitations at 28 U.S.C. § 2462, and on December 23, 1991, she issued an Order Granting Motion to Dismiss. The Region appealed.

In light of the recent decision in 3M Company (Minnesota Mining and Manufacturing), TSCA Appeal No. 90-3 (February 28, 1992), holding that the five-year statute of limitations in 28 U.S.C. § 2462 does not apply to the assessment of administrative penalties under TSCA, we reverse the Presiding Officer's December 23, 1991 Order Granting Motion to Dismiss and reinstate the complaint. Accordingly, we remand this case for further proceedings. 1

So ordered.2

1The Region's appeal brief also raised the issue of whether the statute of limitations at 28 U.S.C. §2462 begins to run before a continuing violation of TSCA sections 8(A) and 15(3), 15 U.S.C. §§ 2607(A) and 2614(3), has abated. Because we have concluded that the statute of limitations at 28 U.S.C. §2462 does not apply to TSCA administrative penalty proceedings, it is not necessary to address this issue.

The Region has filed a Motion for Leave to File a Response to Bethlehem Steel's reply to the Region's appeal brief. The motion is accompanied by the response brief the Region wants to file. Bethlehem Steel in turn has filed a Partial Opposition to Motion for Leave to File Response to Reply Brief. The Board believes that the Region's appeal brief and Bethlehem Steel's reply to the appeal brief adequately address the issue of whether the statute of limitations at 28 U.S.C. §2462 applies to TSCA administrative penalty proceedings. Accordingly, the Board has not considered the Region's response brief, and the Region's motion for leave to file it is denied. Bethlehem Steel's opposition brief also was not considered.

2 The Environmental Appeals Board, as the Administrator's delegatee, has authority to decide appeals of initial decisions in TSCA penalty cases. See 57 Fed. Reg. 5324-26 (Feb. 13, 1992) (revising 40 CFR §§ 22.04(a) & 22.30 to reflect the role of the Environmental Appeals Board as the final decisionmaker in appeals of initial decisions under Part 22).

IN THE MATTER OF CARGILL, INC.

RCRA Appeal No. 92–14

ORDER DENYING REVIEW

Decided May 18, 1992

Syllabus

A citizen has filed a petition for review challenging the decision of U.S. EPA Region IX to issue a permit under Section 3005 of the Resource Conservation and Recovery Act to Cargill, Inc. for its hazardous waste incinerator in Lynwood, California. Petitioner argues that the Region did not comply with certain procedures of California law and thus failed to give the citizens of Lynwood an adequate opportunity to participate in the decision-making process that led to the issuance of the final permit.

Held: Review is denied because the issue was not raised during the public comment period or at the public hearing, even though it was reasonably ascertainable at that time.

Before Environmental Appeals Judges Ronald L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Per Curiam:

Before us is a petition for review filed by the Reverend Charles Lenard Floyd challenging the decision of U.S EPA Region IX to issue a permit under Section 3005 of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. §6925, to Cargill, Inc. for its hazardous waste incinerator in Lynwood, California. The incinerator is used to destroy liquid and gaseous wastes from Cargill's synthetic resin manufacturing plant. The facility has been operating under interim status. As requested by the Environmental Appeals Board, Region IX has filed a response to the petition for review.

Under the rules that govern this proceeding, a RCRA permit ordinarily will not be reviewed unless it is based on a clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. See 40 CFR § 124.19; 45 Fed. Reg. 33412 (May 19, 1980). The preamble to the Federal Register notice in which Section 124.19 was promul

gated states that "this power of review should be only sparingly exercised," and that "most permit conditions should be finally determined at the Regional level ***.” Id. The burden of demonstrating that review is warranted is on the petitioner. The petitioner in this case has not carried that burden.

The gist of the petition is that Region IX did not give the citizens of Lynwood an adequate opportunity to participate in the decisionmaking process that led to the issuance of the final permit. Petitioner charges that the Region's alleged failure to provide such an opportunity violated California Government Code §54950, which requires meetings of "the legislative body of a local agency" to be "open and public."

The Region responds that this issue has not been preserved for review, because petitioner failed to raise it during the public comment period or at the public hearing, even though it was reasonably ascertainable at that time. See 40 CFR §§ 124.13 and 124.19(a). The Region also notes that California Government Code §54958 does not apply to meetings conducted by the Region, and petitioner has not cited any Federal permitting procedures that were violated by the Region. Finally, the Region's response details the extensive notice procedures carried out by the Region.

We conclude that the Region afforded the public every opportunity to participate provided for under Federal permitting procedures. We agree with the Region that this issue has not been preserved for review, since any alleged defect in the public hearing procedures was reasonably ascertainable at the time of the public comment period. Accordingly, since this issue has not been preserved for review, review is hereby denied.

So ordered.