Chempace Corporation (Board decision, July 25, 2000)

Plain-English summary

Chempace Corporation asked the Environmental Appeals Board to reconsider its May 18, 2000 Final Decision and to keep that decision stayed. Chempace argued that the Board had unfairly placed an ability-to-pay burden on the company and that its evidence supported a lower penalty. The Board found that Chempace was rearguing issues already considered and had not shown a clear legal or factual error. It denied reconsideration, lifted the stay, and ordered payment of the full $92,193 civil penalty within 30 days of receiving the order, unless otherwise agreed.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.32 and 22.27(b)
• Outcome: Reconsideration was denied, the stay was lifted, and the $92,193 civil penalty remained due.
• Key point: A reconsideration motion cannot simply reargue penalty issues already decided without showing a clear legal or factual error.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.

)
In re: )
)
Chempace Corporation ) FIFRA Appeal Nos. 99-2 & 99-3 )
Docket No. 5-IFFRA-96-017 )
)

ORDER DENYING MOTION FOR RECONSIDERATION

I. BACKGROUND

On June 2, 2000, Chempace Corporation (“Chempace”) filed

a motion for reconsideration of the Environmental Appeals

Board’s (“EAB” or “Board”) May 18, 2000 Final Decision in the

above-captioned matter. See Respondent’s Motion to Reconsider

Final Decision and Motion to Stay Effective Date of Final

Decision (“Chempace Motion”). Chempace seeks reconsideration

on two grounds:

1) The EAB’s decision places an unsupportable burden
on [Chempace] to show that [Chempace] was not
capable of paying any penalty, including the 4% of
average annual gross income guideline; and 2

2) Viewed in its totality, [Chempace]’s evidence
clearly shows that [Chempace] does not have an
ability to pay anything but a minimum penalty.

Id. at 2, 5. Chempace urges the Board to reconsider its Final

Decision and stay the effective date of that order, pending

consideration of its motion. Id. at 1.

On June 16, 2000, Complainant, U.S. Environmental

Protection Agency Region V (the “Region”), filed a response to

Chempace’s Motion. See Complainant’s Brief Opposing

Respondent’s Motion for Reconsideration and Stay of Final

Decision. The Region argues that Chempace is improperly

rearguing its case through its motion for reconsideration.

Id. at 3-4. In the alternative, the Region asserts that

Chempace’s arguments on reconsideration are meritless. Id. at

4-8.

On June 30, 2000, this Board ordered that the effective

date of its Final Decision be stayed pending the Board’s

consideration of the motion on reconsideration. See Order

Granting Stay (EAB, June 30, 2000). For the reasons stated

below, the motion to reconsider is denied and this Board’s

June 30, 2000 stay is lifted.
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II. DISCUSSION

Under the Consolidated Rules of Practice, as amended, 64

Fed. Reg. 40138, 40176 (July 23, 1999) (codified at 40 C.F.R.

part 22), motions for reconsideration shall be filed within

ten (10) days after service of the final order and "must set

forth the matters claimed to have been erroneously decided and

the nature of the alleged errors." 40 C.F.R. § 22.32.

Chempace’s June 2, 2000 motion was timely filed.

Reconsideration is generally reserved for cases in which

the Board is shown to have made a demonstrable error, such as

a mistake of law or fact. See In re Roger Antkiewicz and Pest

Elim. Prod. of America, Inc., FIFRA Appeal Nos. 97-11 & 97-12

(EAB, March 26, 1999) (Order On Motion for Reconsideration);

In re Gary Development Co, RCRA (3008) Appeal No. 96-2, at 2

(EAB, Sept. 18, 1996) (Order Denying Motion for

Reconsideration); In re Cypress Aviation, Inc., 4 E.A.D. 390,

392 (EAB 1992) (Order Denying Reconsideration).

The filing of a motion for reconsideration “should not be

regarded as an opportunity to reargue the case in a more

convincing fashion. It should only be used to bring to the

attention of [the Board] clearly erroneous factual or legal

conclusions.” In re Southern Timber Products, Inc., 3 E.A.D.

880, 889 (JO 1992). A party’s failure to present its
 4

strongest case in the first instance does not entitle it to a

second chance in the form of a motion to reconsider. See In

re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 99-8 through 99-

72, at 3 (EAB, April 10, 2000) (Order Denying Motions for

Reconsideration) citing Publishers Resource, Inc. v. Walker-

Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985)

(“Motions for reconsideration serve a limited function: to

correct manifest errors of law or fact or to present newly

discovered evidence. Such motions cannot in any case be

employed as a vehicle to introduce new evidence that could

have been adduced during the pendency of the [original]

motion. * * * Nor should a motion for reconsideration serve as

the occasion to tender new legal theories for the first

time.”) (citation omitted); accord In re Arizona Municipal

Storm Water NPDES Permits, NPDES Appeal No. 97-3, at 2-3 (EAB,

Aug. 17, 1998) (Order Denying Motion for Reconsideration); In

re Gary Development Co., RCRA (3008) Appeal No. 96-2, at 2

(EAB Sept. 18, 1996) (Order Denying Motion for

Reconsideration).

Upon review of the motion for reconsideration and the

Region’s response, we conclude that Chempace has failed to
 5

demonstrate that reconsideration of the Board’s Final Order is

warranted because Chempace has not articulated any clear error

in the Board’s legal or factual conclusions. First, Chempace

argues that the Board’s Final Order improperly places a burden

on it to demonstrate that it cannot pay any penalty, or to

“determine what it can pay.” Chempace Motion at 5. Chempace

argues that placing such a burden on a respondent has no basis

in “the statute, case law, or * * * fundamental fairness.”

Id. We find that Chempace is simply rearguing an issue

considered in the case in chief, and in any event disagree

with this claim of legal error. The Board’s Final Order

specifically considered Chempace’s argument that the Presiding

Officer erroneously “impos[ed a] burden on it to ‘put forth

evidence on an amount of civil penalty it could pay.’” In re

Chempace Corp., FIFRA Appeal Nos. 99-2 & 99-3, slip op. at 28

(EAB, May 18, 2000), 9 E.A.D. __. The Board made clear that

Chempace “misread[] both the record and [our precedent in] New

Waterbury.” Id. We concluded that the record reflected that

the $200,000 penalty proposed by the Region was determined by

the Presiding Officer to be inappropriate, and that the

Presiding Officer then properly exercised his authority under

the rules to “consider the record, the statutory penalty
 6

criteria, and the applicable penalty policy, see 40 C.F.R.

§ 22.27(b), to determine an appropriate penalty.” Slip op. at

28. This conclusion does not reflect a decision without basis

in law, let alone fundamental fairness.

Chempace further asserts that its evidence demonstrates

that it was unable to pay “anything but a minimum penalty

amount.” Chempace Motion at 5. In so doing, Chempace merely

reargues its view of the facts which the Board has already

considered and rejected. This does not provide a basis for

reconsideration.

III. CONCLUSION

For the above-stated reasons, Chempace’s motion to

reconsider the Board’s May 18, 2000 Final Order is denied and

the Board’s June 30, 2000 stay is lifted. Chempace shall pay

the full amount of the civil penalty, $92,193, within thirty

(30) days of receipt of this order, unless otherwise agreed to

by the parties. Payment shall be made by forwarding a

cashier’s check or certified check in the full amount payable

to the Treasurer,
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United States of America at the following address:

EPA - Region V
Sonja R. Brooks
Regional Hearing Clerk
P.O. Box 70753
Chicago, IL 60673

So ordered.

Dated: 7/25/00
ENVIRONMENTAL APPEALS BOARD

By: /s/
Edward E. Reich
Environmental Appeals Judge
 CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Denying Motion for Reconsideration in the matter of Chempace Corporation, FIFRA Appeal Nos. 99-2 & 99-3, were sent to the following persons in the manner indicated:

By First Class Mail: Kris P. Vezner (C-14J) Assistant Regional Counsel
U.S. EPA, Region V
77 W. Jackson Boulevard
Chicago, IL 60604-3590

David S. Hoffmann, Esq.
McMahon, DeGulis,
Hoffmann & Blumenthal
The Caxton Building, Suite 650
812 Huron Road
Cleveland, OH 44115-1126

Dated: 7/25/00
/s/
Annette Duncan
Secretary