of off-the-shelf household and commercial cleaning Respondent-Appellant's Brief On Appeal and Motion to Set Aside at 6. In Respondent's Answer and Affirmative Defenses at page 3, Respondent elaborates by indicating that at all times its product had an available chlorine concentration of less than 1% of the product or less than 10,000 ppm. It states, upon information and belief, that products such as Red-Z are exempt from being registered or covered by FIFRA unless they have in excess of 60% available chlorine or 600,000 ppm. Respondent also asserts that Complainant "both by direct advice as well as by its brochures and publications" had previously advised Respondent that Red-Z was exempt from FIFRA and need not be registered. Respondent-Appellant's Brief on Appeal and Motion to Set Aside at 4. Therefore, Respondent believes Complainant was barred by laches, acquiescence and estoppel. The Complainant filed a Reply Brief on September 10, 1991. In its Reply Brief, Complainant denies that its service of the Complaint was in any way defective. It indicates that the Complaint was addressed to the Respondent and mailed to Respondent by certified mail, return receipt requested, in accordance with the applicable rule, 40 CFR § 22.05(b)(1)(i). Service was made on a representative of the Respondent. "According to the Respondent's own papers, the real problem lay with its employee, who was apparently authorized to receive mail and to whom the U.S. Postal Service actually delivered the mail." Reply Brief at 7. In the Region's view, acceptance of the envelope satisfied Complainant's obligation; the conduct of the employee receiving the envelope is Respondent's responsibility. Complainant, in its Reply Brief, also addresses the other issues raised in the appeal. On the issue of the applicability of FIFRA, Complainant cites Section 2(u) of FIFRA, 7 U.S.C. § 136(u) as defining a pesticide to include "any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest ***." As provided in 40 CFR § 152.15, a substance is consid ered to be intended for pesticidal purposes, and thus subject to registration, if: (a) The person who distributes or sells the substance (1) That the substance (either by itself or in combination with any other substance) can or should be used as a pesticide; or (2) That the substance consists of or contains an active ingredient and that it can be used to manufacture a pesticide; or (b) The substance consists of or contains one or more (c) The person who distributes or sells the substance Complainant asserts that the viruses mentioned on the Red-Z label meet the definition of a pest, and thus Red-Z is subject to registration based on its labeling claims and Respondent's actual or constructive knowledge of its intended use, irrespective of the "extremely low level" of available chlorine. Finally, Complainant states that neither the appeal nor the Answer provide sufficient facts to establish that EPA represented to Respondent that Red-Z need not be registered. In any event, even if such representations were made, Complainant states that a party assumes the risk when it relies on an interpretation of an agency rule provided by an agency employee and that opening the door for violators to claim that their violations result from incorrect advice from unidentified Agency employees would invite endless litigation. II. DISCUSSION The threshold determination is the validity of the service of process, since if service were defective, it would vitiate all of the subse quent proceedings. The essence of Respondent's challenge is that the service was not properly "directed" within the meaning of 40 CFR $22.05(b)(1)(ii). There is no clarification in the rules or the preamble accompanying it 2 as to the meaning of the word "directed." We recognize that the term "directed" in this context is different from the term “delivered" as used in other parts of § 22.05(b). Delivery, which contemplates personal service, is much more within the control of the Complainant. When serving a complaint by mail, Complainant has control over how the mail is addressed but none whatsoever over who receives and signs for it on behalf of the Respondent. The rule does not contain acknowledgement-of-service requirements comparable to the Federal rule,3 only a return receipt requirement for certified mail. For service of the Complaint by mail, 40 CFR § 22.07(c) provides that service is complete when the return receipt is signed. We think the proper focus of our inquiry in determining the effectiveness of service under § 22.05(b) is therefore on whether the Complaint was properly addressed and mailed and whether the return receipt was signed by an employee of the Respondent, rather than on the authority of the employee who signed the receipt on behalf of the Respondent.4 We have looked to the record on appeal to ascertain whether all of the required elements of proper service have been complied with. Once Respondent's Answer raised the issue of validity of service, the Complainant had the obligation to assure that the administrative record demonstrated that service was proper. We can fairly assume that any document material to this issue would have been included in the record as submitted to the Regional Administrator accompanying the final Default Order. 2 The Consolidated Rules of Practice, comprising 40 CFR Part 22, were adopted as a final regulation on April 9, 1980 (45 Fed. Reg. 24363 et seq.). They were proposed (43 Fed. Reg. 34378 et seq.), and adopted on an interim basis (43 Fed. Reg. 34730 et seq.), on August 4, 1978. 3 Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure. 4In a case somewhat similar to this one, In re Katzson Brothers, Inc., FIFRA Appeal No. 85-2 (Final Decision November 15, 1985) (Order on Reconsideration March 3, 1986), service of a complaint by certified mail addressed to the owner and president of a company, signed for by that person's secretary, was found to be valid despite allegations by the owner or lack of actual notice due to acts of "sabotage" by the secretary. On appeal, the Court of Appeals for the Tenth Circuit upheld this determination, although the Order was reversed and remanded on other grounds. Katzson Bros., Inc. v. United States Environmental Protection Agency, 839 F.2d 1396 (10th Cir. 1988). As previously discussed, a threshold question, then, is how the envelope was addressed. The record does not contain a copy of the envelope nor a copy of a transmittal letter if there was one. There are two significant documents in the record relating to service, however. These are the return receipt for certified mail and the certificate of service. The return receipt shows the article as being addressed to "MEDZAM LTD." It does not indicate the name of any particular person. The Certificate of Service also lists only the company name. We can only infer from this that the Complaint was mailed to Medzam, Ltd., without being further addressed to an officer or agent. We note that Complainant's Reply Brief says that it was addressed to "the Respondent." (Reply Brief at p. 6.) Since the Complaint was mailed addressed only to "Medzam, Ltd." without further addressing it to one of the persons specified in § 22.05(b)(1)(ii), it was not properly "directed" under that section and service was defective. Accordingly, the Default Order is hereby vacated and the Complaint dismissed. So ordered. IN THE MATTER OF HAWAIIAN COMMERCIAL & PSD Appeal No. 92-1 ORDER DENYING REVIEW Decided July 20, 1992 Syllabus Petitioner, a private citizen, is appealing the issuance of a Prevention of Significant Deterioration (PSD) permit to the Hawaiian Commercial & Sugar Company by the State of Hawaii. The permit relates to construction of a new 30 MW Circulating Fluidized Bed Boiler to be located at the Puunene Mill Facility on the island of Maui. The petition sets forth six bases for seeking review. These relate to ash disposal, coal stockpiles, the fuel oil to be burned, SO2 and NOx emission limits, air quality modeling, and waiver of performance tests. Held: While Petitioner urges the State to go beyond the applicable Federal PSD requirements, the petition does not identify any deficiency in the permit relative to those requirements. The petition for review is therefore denied because it fails to identify any factual or legal errors or any policy considerations or exercises of discretion that warrant review. Before Environmental Appeals Judges Ronald L. McCallum and Edward E. Reich. Opinion of the Board by Judge Reich: Petitioner James V. Williamson, a private citizen, has filed this appeal of the issuance of a Prevention of Significant Deterioration (PSD) permit to the Hawaiian Commercial & Sugar Company (HC&S) by the State of Hawaii. The State, acting pursuant to a delegation from the U.S. Environmental Protection Agency (EPA) and with its concurrence, issued the permit, styled "Approval to Construct/Modify a Stationary Source (HI 89-01)." The permit covers construction of a 30 MW Circulating Fluidized Bed (CFB) Boiler to be located at the Puunene Mill Facility, Puunene, Maui. The Boiler is being designed to burn three different types of fuels for maximum flexibility. These are coal, fuel oil, and bagasse (the part of sugarcane remaining |