Briefly, Respondent was charged with failure to close its hazardous waste storage facility in accordance with a plan approved by the Regional Administrator, as required by the regulations, 40 CFR § 265.113. In his initial decision, the presiding officer found that Respondent had failed to close its facility in accordance with the regulations; he then assessed a civil penalty of $17,5002 and issued a compliance order. Based on my review of the record I have determined that Respondent has not shown any error in the presiding officer's initial decision.3 Moreover, all of the arguments made by Respondent on appeal were also raised before the presiding officer. Therefore, the presiding officer's initial decision is affirmed, and his findings of fact, conclusions of law and reasons therefor are adopted I have issued this final decision. I make no finding today regarding the enforceability of this decision. That ultimately is a matter for the courts to decide. 2 Complainant proposed a civil penalty of $20,000 in the complaint. The presiding officer, based on his evaluation of the facts in the record and the statutory criteria, determined that a civil penalty of $17,500 was appropriate. His reasons are explained in detail in the initial decision. Initial Decision at 12-19. The regulations provide that the presiding officer may increase or decrease the penalty proposed in the complaint, so long as he explains his reasons with specificity and the presiding officer has done so here. 40 CFR §22.27(b) (1984). For a discussion of the presiding officer's discretion in determining civil penalties, see In re Electric Service, TSCA Appeal No. 82-2, Final Decision, January 7, 1985. 3 Although there was no error in the initial decision, the presiding officer later ruled, erroneously as it turns out, that Respondent's motion to reopen the hearing, filed after the initial decision, was untimely. Order Denying Motion dated March 11, 1985. The ruling was erroneous because the time for filing the motion was miscalculated. The initial decision was served by mail on February 14, 1985. When service is by mail, the regulations add five days to the time allowed for filing a motion to reopen. 40 CFR §22.07(c) (1984). See In re Agland Inc., FIFRA Appeal No. 832 (Final Decision dated April 18, 1985) (construing 40 CFR § 22.07(c)). Therefore, Respondent's motion, which was filed on March 7, 1985, was timely, since under the rules the last day to file was March 11, 1985. However, in addition to denying the motion because he thought it was untimely, the presiding officer also stated that "the motion, even if timely filed, fails to persuade the Court to reopen the hearing." Order at 1. Based on my review of the record, I agree. Respondent did not show good cause for not introducing the evidence in question during the course of the hearing, as required by the regulations. 40 CFR §22.28 (1984). Therefore, the presiding officer's denial of the motion to reopen is supported by the record and his error in calculating the filing time was harmless. The presiding officer also stated in this order that it was too late to file an appeal. Order, footnote at 2. ("Although such a motion [to reopen] normally stays the running of the clock for all other time periods, the time for filing an appeal ran out before the instant motion [to reopen] was filed."). Respondent argues that the appeal, like the motion to reopen, was timely. Obviously, the presiding officer made the same error in calculating the time for filing an appeal that he made in the case of the motion to reopen. For the reasons explained above, the motion to reopen was timely, its filing stayed the running of the clock for filing an appeal, and, as argued by Respondent, the appeal was timely. and incorporated by reference in this final order without restatement.4 Accordingly, respondent shall comply with the terms of the compliance order; the $17,500 civil penalty shall be paid within 60 days of service of this order unless otherwise agreed to by the parties; and payment shall be made by cashier's check or certified check payable to the Treasurer, United States of America. The check shall be sent to EPA-Region III, (Regional Hearing Clerk), P.O. Box 360515M, Pittsburgh, PA 15251. So ordered.5 4 An appellate tribunal may adopt the findings, conclusions, and rationale of a subordinate tribunal without extensive restatement. United States v. Orr, 474 F.2d (2nd Cir. 1973); Carolina Freight Carrier Corp. v. United States 323 F. Supp. 1290 (W.D.N.C. 1971); and cases cited in Ciba-Geigy v. Farmland Industries, FIFRA Comp. Docket Nos. 33, 34 and 41 (Opinion of the Judicial Officer, dated April 30, 1981). 5 Respondent requested an opportunity to present oral argument. See Motion dated April 11, 1985. Complainant opposed the motion. See Opposition to Motion for Oral Argument dated April 18, 1985. Because the issues raised on appeal have been fully briefed, the motion for oral argument is denied. IN THE MATTER OF AMERICAN CYANAMID CAA (120) Appeal No. 85-1 FINAL ORDER Decided September 27, 1985 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: BACKGROUND American Cyanamid Corporation owns and operates various storage tanks at its Fortier plant in Westwego, Louisiana. The tanks contain acrylonitrile and methanol. On September 28, 1984, EPA Region VI issued a notice of noncompliance against American Cyanamid under § 120 of the Clean Air Act (CAA) and the Agency's implementing regulations, charging that 14 of the tanks failed to comply with certain emission limitations for volatile organic compounds (VOC) set forth in the Louisiana State Implementation Plan (SIP).1 This is the first appeal under $120 of the Clean Air Act (CAA), 42 U.S.C. 7420. Section 120 provides for the assessment of economic penalties for violation of the Clean Air Act and its implementing regulations. Section 120 is unique in that the penalties assessed under it are intended to be calculated on a case-bycase basis based upon the projected costs and expenses avoided as a result of noncompliance. § 120(d2)(A); 40 CFR §§ 66 & 67. Among other things, under § 120, penalties may be assessed against any major stationary source, i.e., any source that emits or has the potential of emitting one hundred tons of any pollutant per year, in violation of an applicable emission limitation. § 120(a)(2). Sources in violation of emission limitations are to be given "a brief but reasonably specific notice of noncompliance." § 120(b)(3). Upon receiving such notice, a source must either submit, within forty-five days, a petition challenging the notice of noncompliance (or asserting the right to an exemption), or calculate the amount of the penalty owed. The penalty begins to accrue when the notice of noncompliance is issued, § 120(d)(3)(c)(ii), and, as previously stated, it must reflect the projected costs and expenses avoided as a result of noncompliance. § 120(d2)A). During the noncompliance period the penalty is to be paid quarterly in equal install The company requested (and received) an evidentiary hearing before an Administrative Law Judge (presiding officer) to challenge the notice of noncompliance. At the hearing American Cyanamid took the position that it was not in violation of the SIP's emission limitations for the tanks in question since the State had previously approved a "bubble" scheme allowing pollution credits-which the company claimed it was entitled to (due to incineration of gaseous wastes being emitted from another sector of the Fortier plant)-to offset the emissions from the 14 tanks in question. EPA Region VI claims that the bubble scheme is a SIP revision and does not become effective as an offset against the emissions in question unless and until it has been submitted to EPA and EPA approves it; here, the bubble scheme in question, although approved by the State and submitted to EPA as a SIP revision for approval, has not been approved by EPA. In her initial decision, the presiding officer agreed with the Region's position and held the bubble scheme to be ineffective as an offset against the tanks' emissions since EPA had not approved it. Accordingly, the presiding officer found American Cyanamid to be in noncompliance with the SIP's emission limitations for the 14 storage tanks in question. This appeal followed. For the reasons set forth below, the presiding officer's initial decision is affirmed. DISCUSSION On appeal, American Cyanamid claims that the presiding officer's decision is erroneous for the following reasons: -The bubble scheme in question was effective as an offset against the tanks' emissions without EPA approval. -The presiding officer prematurely issued her initial -The presiding officer erred in refusing to consider ments beginning when the notice of noncompliance is issued and terminating when the source fully complies with the applicable emission limitations. §§ 120(d)(3)(B), (C). Here, American Cyanamid elected to challenge the notice of noncompliance; accordingly, no penalty has yet been calculated or assessed. These issues are discussed below, in turn. IS A BUBBLE SCHEME A SIP REVISION NEEDING EPA'S SIP revisions cannot become effective without EPA approval.2 In 1979, the Agency announced its policy to treat all bubble schemes as SIP revisions. 44 FR 71779 (December 11, 1979). Accordingly, under the Agency's 1979 bubble policy, bubble schemes could not become effective without case-by-case EPA approval. In April, 1982, the Agency modified its bubble policy. 47 FR 15076 (April 7, 1982). Under the modification, which remains current Agency policy, a bubble scheme may now become effective without EPA approval provided the scheme is developed under EPA-approved state procedures ensuring that emissions trades will not interfere with timely attainment and maintenance of ambient standards-such EPA-approved state procedures are called "generic" SIP rules. In that regard 47 FR 15076 states: Emissions trades can be approved without SIP revi- 2 CAA § 110(i); 40 CFR §§51.6 and .8 (1984); See NRDC v. Train, 412 U.S. 60 (1975). American Cyanamid tries to minimize the significance of the fact that the State itself identified Cyanamid's bubble scheme as a SIP revision and submitted it to EPA for approval. In that regard, American Cyanamid states: **** it is EPA policy that even where EPA approval of a bubble It is clear from the record that the bubble scheme in question was not submitted to EPA merely for the "Agency's information and review." Rather, it was submitted by the State to EPA for "approval" as a "revision * * to the Louisiana State Implementation Plan." Government's Ex. 37. |