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IN THE MATTER OF B&B WRECKING AND
EXCAVATING, INC.

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, Adeninistrative 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,
Regional Hearing Clerk,
P. O. Box 70753,
Chicago, IL 60673

So ordered.

IN THE MATTER OF CHEVRON CHEMICAL CO.
(RICHMOND, CA FACILITY)

RCRA Appeal No. 90-15

ORDER DENYING REVIEW IN PART AND REMANDING IN PART

Decided April 27, 1992

Syllabus

This case involves a petition for review of a permit issued by the United States Environmental Protection Agency, Region IX, under the Resource Conservation and Recovery Act (RCRA). The permit authorizes Chevron Chemical Company to operate a hazardous waste incineration facility in Richmond, California. Petitioners (Chevron, the Pipe Trades Council of Northern California (PTC), and Citizens for a Better Environment) raise a total of twelve issues on appeal.

After filing its appeal, Chevron filed a motion requesting consideration of additional information. Chevron contends that this information will correct what it characterizes as erroneous factual assumptions made by the Region.

Held: The proceeding is remanded and the Region is instructed to determine whether the record should be supplemented with the new information submitted by Chevron and, if so, whether the permit should be revised. Given the nature and volume of this information, it would not be appropriate for the Board to attempt to determine its significance for the first time on appeal. On remand, the Region is also instructed to address two arguments raised by Chevron and PTC respectively. First, the Region must clarify its rationale for selecting a cancer risk level of 10-6 rather than the 10-5 level recommended by an EPA guidance document cited by Chevron and a proposed EPA regulation. Second, the Region must consider whether information submitted by Chevron that was classified as confidential business information (CBI) should nevertheless be released to the public pursuant to the "Special rules governing certain information obtained under the Solid Waste Disposal Act,” 40 C.F.R. §2.305.

All other proposed grounds for relief raised by the several petitioners have been considered and rejected for the reasons stated in the Region's response.

Judges Ronald

L.

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

Opinion by Judge McCallum:

On May 8, 1990, U.S. EPA Region IX issued a permit under the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C.A. §§ 6901-6992k, authorizing Chevron Chemical Company to operate a hazardous waste incineration, storage, and treatment facility located in Richmond, California.1 Three appeals have been filed under 40 C.F.R. § 124.19 by Chevron, the Pipe Trades Council of Northern California (PTC), and Citizens for a Better Environment (CBE) in conjunction with the West County Toxics Coalition. As requested by the Agency's Judicial Officer,2 the Region filed a response to the petitions dated November 30, 1990 (Region's Response).

The parties raise a total of twelve issues for consideration on appeal.3 Chevron argues that the permit improperly requires it to repeat the entire trial burn procedure as part of any reapplication following expiration of the permit in 1995; that the permit's limitations on the total amount of wastes entering the incinerator are overly restrictive; and that the mass feed rates for certain metals entering the incinerator are overly restrictive and, in some cases, technically impossible to demonstrate. PTC makes the following arguments: the Region improperly withheld information from the public regarding wastes at the facility on the ground that such information is confidential; the permit's metal feed rates are higher than those measured in the trial burn; the risks to sensitive receptors in the community, such as children and the elderly, were not adequately evaluated; the permit should contain a limit on zinc emissions; trial burn measurements of the metal feed and emissions rates were inaccurate; and the Region's selection of Principle Organic Hazardous Constituents (POHCs) regulated by the permit was flawed. PTC and CBE both argue that the permit improperly allows Chevron to burn

1All wastes stored or treated at the facility are generated on-site by the production, formulation or packaging of pesticides or other chemical products.

2 At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. Subsequently, effective on March 1, 1992, the position of Judicial Officer was abolished and all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. 57 Fed. Reg. 5321 (Feb. 13, 1992).

In its appeal, Chevron raised several additional issues regarding various inconsistencies and errors in the final permit. Chevron and the Region have agreed to resolve these matters through a Class 1 permit modification under 40 C.F.R. § 270.42. These issues have therefore been rendered moot and need not be addressed in today's order.

wastes not specified in the permit and that the permit's waste minimization provisions are inadequate. Finally, CBE argues that the Region failed to consider the cumulative risk from the facility as a whole.

On July 3, 1991, Chevron filed a motion requesting permission to supplement the record to correct what it characterizes as erroneous factual assumptions made by the Region in writing the permit and in responding to the petitions for review. This supplemental information was submitted along with the motion. Specifically, Chevron seeks to present additional information regarding the Region's decision: 1) to limit the total amount of wastes entering the incinerator to 300,000 tons for the five-year permit term and to 75,000 annually; 4 and 2) to include mass feed rates for certain metals (arsenic, beryllium, cadmium, and chromium) more restrictive than those in the draft permit.5 Chevron contends that the Region's decision on these issues was arbitrary and lacked any technological or health-based justification.

The Region has not submitted a substantive response to the new information or otherwise expressed its views as to its significance. Although Region IX now states that the appeal should be resolved based on the existing administrative record,6 at a June 20, 1991 meeting, the Region purportedly encouraged Chevron to file this supplemental information,7 thereby arguably suggesting that the Region views the new material as relevant to the present proceeding.

8

Given the nature and volume of the information submitted by Chevron, it would not be appropriate to attempt to discern its signifi4 See Final Permit Condition I.K.4. These limits were added in response to public comments on the draft permit.

5 Final Permit Condition IV.C.16. provides:

The mass feed rates of toxic metals to the incinerator
not exceed:

[blocks in formation]

shall

6 See Letter from Laurie Williams, Assistant Regional Counsel, to David R. Heckler, Assistant Judicial Officer (November 18, 1991).

7 See Letter from Margaret Rosegay, Esq., Counsel for Chevron, to Bessie Hammiel, U.S. EPA Hearing Clerk (July 3, 1991).

8 In its Supplemental Filing, Chevron presents information alleging that the Region-in limiting the total waste feed to the incinerator to 300,000 tons for the permit's five-year term (75,000 tons annually) may have failed to appreciate the dynamic nature of the specialty chemical market which, according to Chevron, requires that a manufacturer be able to respond to changing market conditions within a three

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