District of Columbia Water and Sewer Authority (Board decision, April 23, 2008)

Plain-English summary

EPA Region 3 issued the District of Columbia Water and Sewer Authority a permit for the Blue Plains Wastewater Treatment Plant. After the EAB denied review in part and remanded in part, WASA asked the Board to reconsider its ruling on the permit's total nitrogen limit and the Region's responses to comments about that limit. The Board denied reconsideration because WASA repeated arguments the Board had already considered and rejected, and did not show a clear legal or factual error. The Board also found that WASA had received a full opportunity to comment and that the Region had adequately addressed its fairness concerns.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(g); 40 C.F.R. § 1.25(e)(1)
• Outcome: WASA's motion to reconsider the March 19, 2008 order was denied.
• Key point: Reconsideration is for demonstrable legal or factual error, not a second opportunity to reargue issues already decided.

Full text (EPA EAB public release)

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

In re: )

District of Columbia Water and ) Sewer Authority NPDES Appeal Nos. 05-02, 07-10, 07-11, and 07-12

Permit No. DC0021199 )

            ORDER DENYING MOTION FOR RECONSIDERATION

                                I. BACKGROUND

     On April 5, 2007, U.S. EPA Region 3 (the "Region") issued a National Pollutant

Discharge Elimination System ("NPDES") permit to the District of Columbia Water and Sewer Authority ("WASA"), for the operation of its Blue Plains Wastewater Treatment Plant ("Final Permit"). Four petitions filed with the Board under 40 C.F.R. § 124.19(a) sought review of the Final Permit. On March 19, 2008, the Environmental Appeals Board ("Board") issued an Order Denying Review In Part and Remanding In Part. See In re Dist. of Columbia Water and Sewer Auth., NPDES Appeal Nos. 05-02, 07-10, 07-11, and 07-12 (EAB Mar. 19, 2008), 13 E.A.D. ____ (hereinafter "WASA Decision"). Among other things, the Board rejected WASA's challenge to the Final Permit's total nitrogen effluent limit as well as WASA's assertion that the Region failed to respond to certain comments concerning the nitrogen limit. See id. at 43-47.

     On April 1, 2008, WASA filed a motion for reconsideration of the WASA Decision. See

District of Columbia Water and Sewer Authority's Motion for Reconsideration (April 1, 2008) ("Motion"). The Motion states that reconsideration is warranted on two issues. First, WASA argues that the Board erred in rejecting WASA's challenge to the Region's decision to include a

total nitrogen effluent limitation of 4,689,000 pounds per year. See id. at 2. Second, WASA argues that the Board erred in rejecting WASA's assertion that the Region's response to comments failed to address WASA's concerns relating to alleged deficiencies and unfairness in the process for determining the nitrogen limitation. The Region, as well as the two other petitioners in this matter, the Chesapeake Bay Foundation and, filing together, the Friends of the Earth and the Sierra Club, have filed responses to WASA's Motion. See Region III Response to District of Columbia Water and Sewer Authority's Motion for Reconsideration (Apr. 14, 2008); Chesapeake Bay Foundation's Response to WASA's Motion for Reconsideration (Apr. 14, 2008); Friends of the Earth and Sierra Club's Opposition to the District of Columbia Water and Sewer Authority's Motion for Reconsideration (Apr. 15, 2008).

                                   II. DISCUSSION

   Motions for reconsideration are authorized by 40 C.F.R. part 124, which provides that the

motion must 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.
§ 124.19(g). Reconsideration is generally reserved for cases in which the Board is shown to have made a demonstrable error, such as a clearly erroneous mistake of law or fact. See In re Core Energy, LLC, UIC Appeal No. 07-02, at 2 (EAB Jan. 15, 2008) (Order Denying Motion for Reconsideration); Michigan CAFO General Permit, NPDES Appeal No. 02-11, at 3 (EAB July 8, 2003) (Order Denying Motion for Reconsideration); In re Steel Dynamics, Inc., PSD Appeal No. 01-03, at 2 (EAB May 7, 2000) (Order Denying COW's Motion for Reconsideration and Stay of Decision).

   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 Haw. Elec. Light Co., Inc., PSD Appeal Nos. 97-15 through 97-22, at 6 (EAB Mar. 3, 1999) (citing In re Ariz. Mun. Storm Water NPDES Permits, NPDES Appeal No. 97-3, at 2 (EAB Aug. 17, 1998) (Order Denying Motion for Reconsideration). A party's failure to present its 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 99-12, at 3 (EAB April 10, 2000) (Order Denying Motions for Reconsideration) (citing Publishers Res., Inc. v. Walker-Davis Publ'ns, 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 proceeding]. * * * Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.")). For the reasons stated below, we conclude that WASA has failed to demonstrate that reconsideration of the Board's Decision is warranted.

   As stated above, WASA's Motion raises two issues on which it seeks reconsideration.

First, WASA argues that the Board's WASA Decision erroneously rejected WASA's arguments regarding the process used to develop the permit's nitrogen effluent limitation.¹ See Motion at 2. As the Board explained, however, the allocation process by which the Chesapeake Bay Area

    ¹ This process was fully explained in the Board's March 19, 2008 Order Denying Review In

Part and Remanding in Part and will not be repeated here. See WASA Decision, at 34-37.

States established load allocations for various pollutants by state, is not a condition of the Final Permit itself and is, therefore, outside the scope of the Board's jurisdiction. See WASA Decision, at 44-45. While WASA clearly disagrees with this conclusion, see Motion at 2-4, WASA has not articulated any clear error in the Board's legal or factual conclusions. Rather, WASA is simply rearguing assertions previously considered and rejected by the Board as a basis for review. WASA has therefore failed to demonstrate that reconsideration is warranted on this issue.

Further, to the extent that WASA's Motion is arguing that the comment period on the draft permit did not provide a sufficient opportunity to comment on the nitrogen limit, the Motion fails to convince us that reconsideration is warranted. A review of the record makes clear that WASA was given a full and fair opportunity to challenge the nitrogen limit and that the Region fully considered WASA's objections.²

   Second, in its petition for review, WASA argued that the Region failed to respond to its

comments regarding unfairness related to the development of the Permit's nitrogen limitation.³ Upon review of the Region's Response to Comments Document,⁴ the Board rejected WASA's argument in this regard. In particular, the Board stated that "[t]he Region dedicated ten pages of

    ² We note that, in discussing the 2006 draft permit, the Region concluded that any exceedance

of the 4.689 million pounds per year mass load limitation would have a reasonable potential to exceed state water quality standards. See WASA Decision, at 38-39. As the Board stated in the WASA Decision, "[d]uring the comment period for the December 2006 Draft Permit, WASA again objected to the nitrogen limit, raising arguments similar to the ones it now raises before the Board * * *. The Region acknowledged these comments, yet determined that, despite WASA's comments, the 4,689,000 pounds-per-year total nitrogen limit was appropriate, and thus the Region included it in the final permit." Id.

    ³ See WASA Decision, at 47.

    ⁴ The Response to Comments Document is cited in the WASA Decision as: Reg. 07 Ex. 4

(Apr. 5, 2007 Response to Comments). See WASA Decision, at 47 n.59.

its Response to Comments to WASA's comments" and addressed WASA's fairness concerns on pages 20-21 of its Response to Comments Document. See WASA Decision, at 47. While WASA may disagree with this conclusion, it has once again failed to demonstrate that reconsideration is warranted. An examination of the Region's response to comments document indicates that the Region did indeed adequately address WASA's concern on this issue and nothing in the Motion demonstrates that this conclusion was erroneous.

                                  III. CONCLUSION

  For the above-stated reasons, WASA's motion to reconsider the Board's March 19, 2008

Order Denying Review in Part and Remanding in Part is hereby DENIED.

   So ordered.⁵


                       ENVIRONMENTAL APPEALS BOARD

Dated: April 23, 2008 By: [signature]
Kathie A. Stein
Environmental Appeals Judge

    ⁵ The three-member panel deciding this matter is comprised of Environmental Appeals Judges

Edward E. Reich, Kathie A. Stein, and Anna L. Wolgast. See 40 C.F.R. § 1.25(e)(1).

                                  - 5 -

CERTIFICATE OF SERVICE

  I hereby certify that copies of the foregoing Order Denying Motion for Reconsideration in

the matter of District of Columbia Water and Sewer Authority, NPDES Appeal Nos. 05-02, 07- 10, 07-11, and 07-12, were sent to the following persons in the manner indicated:

By Certified Mail
Return Receipt Requested: David E. Evans
McGuireWoods LLP
901 East Cary St., One James Center
Richmond, VA 23219

                              Avis Marie Russell
                              General Counsel
                              District of Columbia Water and Sewer Authority
                              500 Overlook Ave., S.W.
                              Washington, D.C. 20032

                              Amy E. McDonnell
                              John A Mueller
                              6 Herndon Ave.
                              Annapolis, MD 21403

                              Jennifer C. Chavez
                              David S. Baron
                              Earthjustice
                              1625 Massachusetts Ave, NW #702
                              Washington, D.C. 20036-2212

By Pouch Mail: Deane H. Bartlett
Senior Asst. Regional Counsel
U.S. EPA Region 3
1650 Arch St.
Philadelphia, PA 19103

By Interoffice Mail: Sylvia Horwitz (MC-2355A)
Office of General Counsel

                                       [signature]
                                         Annette Duncan
                                          Secretary