and, upon completion of the appeal, it will add language to the amended permit that is almost identical to the omitted language. VDAPC also points out that the amended permit still contains Specific Conditions 21 and 22, which together (i) define the type of wood that may be burned at the facility, (ii) require that wood burned at the facility be analyzed, upon the request of VDAPC, and (iii) specify that records of the analyses be kept current for the most recent three-year period. Moreover, we note that the omitted permit provision relates wholly to State-law concerns unrelated to the applicable federal PSD regulations at 40 CFR §52.21. In light of these considerations, we conclude that Ms. West's petition does not identify any factual or legal errors or any policy considerations or exercises of discretion that warrant review. Her petition is therefore denied.2

Phillips Petition: VDAPC received a copy of a petition for review from a citizen named Dale Phillips. VDAPC has included a copy of the Phillips petition with its response to the West petition and has responded to the issues raised in the Phillips petition. The petition is in the form of a letter addressed to this Agency's Administrator at the Headquarters address and dated March 20, 1992. Other than the copy forwarded by VDAPC, however, there is no indication that the Agency ever received the letter, and the Agency did not receive VDAPC's copy of the petition until well after the deadline for filing the petition had passed. Accordingly, Mr. Phillips's petition is denied as untimely.

As an alternative holding, we conclude that Mr. Phillips' petition must be denied on the merits. The petition raises two issues, the first of which is the same issue raised by Ms. West, discussed above. The second issue relates to Specific Condition 34 of the revised permit, which provides as follows:

On September 18, 1991, the Aqualon Company
("Aqualon”) notified the Department that Aqualon
had permanently ceased all air emissions of any pol-
lutant regulated under the federal Clean Air Act,
the Virginia Air Pollution Control Law and the regu-
lations promulgated under those laws, from four boil-
ers (the "Boilers") located at the corner of Hercules
Road and Winston Churchill Drive in Hopewell, Vir-

for the most recent three-year period. (Section 120-02-11 of State
Regulations).

2 Because curing the omission will only involve a minor amendment to the permit to address a matter under State, not federal, law, the permit may reissue without further recourse to the Agency.

ginia. On September 20, 1991, the Department noti-
fied Aqualon Company that the shut down of the
Boilers was state enforceable. Multitrade Limited
Partnership shall not commence commercial oper-
ation of the facility described in this permit until
the shut down of the boilers is federally enforceable,
provided however, that such commercial operation
may commence if the shut down of the Boilers has
not become federally enforceable within twelve (12)
months after the date of this permit.

(Permit, Specific Condition 34, p.10.)

34

In his petition, Mr. Phillips complains that Specific Condition

is very confusing and seems contradictory to me. The
revised permit does not make it clear that the offsets
at Aqualon are required to be made federally enforce-
able. I request that this matter be clarified before
the permit becomes final and the offsets be made
federally enforceable.

It is important to emphasize at the outset that neither the Clean Air Act nor its implementing regulations requires Specific Condition 34 to be in the permit. Specific Condition 34 was placed in the permit at the request of the permittee pursuant to a settlement agreement among Multitrade, the Department of the Interior, and various environmental groups. Neither EPA nor VDAPC was a party to the settlement agreement. In addition, no one is contending that Specific Condition 34 does not implement the settlement agreement faithfully: the settlement agreement, like Specific Condition 34, provides that Multitrade may not commence commercial operation of the facility until the Aqualon shut-downs are federally enforceable, provided however that within a year after the permit amendment, Multitrade may commence commercial operations even if the Aqualon shut-downs have not been made federally enforceable.3

3 The settlement agreement provides as follows:

Multitrade shall not commence commercial operation of the Facil-
ity until after the Consent Agreement or other mechanism to
prohibit the Aqualon emissions from the Boilers has become state
enforceable and federally enforceable, provided however, that
Multitrade may commence commercial operation if the state-en-
forceable prohibition on Aqualon emissions from the Boilers has

Continued

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.

Judges

Before Environmental Appeals Ronald L. [cCallum, 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).