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In re Polo Development, Inc.

Case Number:CWA Appeal No. 16-01
ELR Citation:47 ELR 41388

On January 13, 2016, Polo Development, Inc., AIM Georgia, LLC, and Mr.Joseph Zdrilich (“Respondents”) filed a motion seeking to submit an out-of-time appeal of an Initial Decision and Order issued against them on December 1, 2015. Respondents claim that “special circumstances” justify an extension of time in this case.

Held: Motion denied and Notice of Appeal dismissed. The Board holds that it retains discretion under the Consolidated Rules of Practice, 40 C.F.R. part 22, to accept late-filed appeals when circumstances warrant. In this case, however, the Board finds that circumstances did not warrant accepting the late-filed appeal. Instead, the evidence established that EPA served the Initial Decision and Order on Respondents, that Respondents’ counsel received the Initial Decision and Order at least two weeks before the appeal deadline, and that Respondents’ counsel did not exercise due diligence in monitoring the docket of the enforcement proceedings below. The Board concludes that all of these factors weigh against the Board finding special circumstances to exercise its discretion in this instance.