Arizona Municipal Storm Water NPDES Permits for City of Tucson, Pima County, City of Phoenix, City of Mesa, and City of Tempe (Board decision, August 17, 1998)

Plain-English summary

Defenders of Wildlife and the Sierra Club asked the Environmental Appeals Board to reconsider its May 21, 1998 order concerning municipal storm-water permits for Tucson, Pima County, Phoenix, Mesa, and Tempe. The Board denied reconsideration because much of the motion raised new arguments or repeated points already rejected. It held that the applicable rules did not prohibit the Regional permitting authority from meeting with permittees during the public comment period, and that the record did not show a basis to require numeric effluent limits or whole effluent toxicity testing. The Board also noted that the ex parte communications rule did not apply because no evidentiary hearing had been granted.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.91(i) and 124.78(d)
• Outcome: The motion for reconsideration was denied.
• Key point: Reconsideration cannot be used to raise new arguments or reargue issues without showing a demonstrable 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: )
)
Arizona Municipal Storm )
Water NPDES Permits for City )
of Tucson, Pima County, City )
of Phoenix, City of Mesa, ) NPDES Appeal No. 97-3
and City of Tempe
)
)
Permit Nos. AZS000001, )
AZS000002, AZS000003,
)
AZS000004, and AZS000005 )
)

ORDER DENYING MOTION FOR RECONSIDERATION

On June 3, 1998, the Defenders of Wildlife and the Sierra

Club ("petitioners") filed a request for reconsideration of the

Environmental Appeals Board’s May 21, 1998 Order Denying Review

in the above-captioned matter. Motion to Reconsider Order

Denying Review ("Motion to Reconsider"). Petitioners contend

that reconsideration is warranted because the Board erred by: 1)

concluding that a Regional permitting authority may hold

informational meetings with a permittee during the comment

period; 2) concluding that the permits will ensure compliance

with State water quality standards absent numeric effluent

limitations and whole effluent toxicity limits; and 3) failing to

require that the permit be revised to include whole effluent 2

toxicity testing. For the reasons stated below the motion for

reconsideration is denied.

Under 40 C.F.R. § 124.91(i), motions for reconsideration

"must set forth the matters claimed to have been erroneously

decided and the nature of the alleged errors." 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 Gary Development Co, RCRA (3008) Appeal No. 96-2, at 2

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

In re Mayaguez Regional Sewage Treatment Plant, NPDES Appeal No.

92-23, at 2 (EAB, Dec. 17, 1993) (Order Denying Reconsideration

and Stay Pending Reconsideration or Appeal). 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 strongest case in the first instance does

not entitle it to a second chance in the form of a motion to

reconsider. See 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 3

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). Upon review

of the motion for reconsideration and the Region’s response, we

conclude that the motion largely consists of arguments or

information raised by petitioners to the Board for the first

time. These arguments will not be considered. As to issues

raised in the original petition for review, petitioners have

failed to demonstrate that reconsideration of the Order Denying

Review is warranted.

First, with regard to petitioners’ assertion that Region IX

improperly met with the permittees during the public comment

period, petitioners reiterate their assertion that such a meeting

was improper. Petitioners also raise new arguments, not raised

in their petition. In particular, petitioners assert that the

applicable regulations require that any meetings with a permittee

be transcribed or recorded and made available to the public and

that the failure to do so constitutes a violation of due process.

Motion to Reconsider at 1-2. Petitioners further state that the

notes of the meeting between the permittees and Region IX were

"uninformative and largely incomprehensible." Id. at 2.

However, because these arguments were not raised in the petition

for review, they are not appropriate for consideration here. See

In re Gary Development, supra, at 3-4 (a petitioner is precluded 4

from raising new arguments or presenting new evidence in a motion

for reconsideration).

As the Board stated in the Order Denying Review, nothing in

the regulations governing the issuance of an NPDES permit

prohibits the Regional permitting authority from meeting with a

permittee during the public comment period. Further, notes from

the meeting (including an agenda) were included in the

administrative record and any changes made to the permit after

the close of the comment period were fully explained in the

Region’s response to comments.1 Finally, as the Board stated,

the applicable regulatory prohibition on ex parte communications

applies only after the granting of an evidentiary hearing. 40

C.F.R. § 124.78(d). As no hearing was granted in this case, the

prohibition is inapplicable.

On the issue of whether the permits assure compliance with

State water quality standards, petitioners fail to convince us

that our rejection of petitioners’ assertion that the permit must

be revised to include numeric effluent limitations is erroneous.

As stated in the Order Denying Review, the Agency has determined

that where, as it expressly found here, numeric effluent

limitations prove infeasible, permits may include best management

1
We note that although the notes are not entirely clear, they do not, contrary to petitioners’ suggestion, indicate that any substantive agreement or decision was reached "behind closed doors." Rather, as far as we can determine from the record, the notes appear to support the Region’s assertion that the meeting was informational in nature. 5

practices. The motion for reconsideration with regard to this

issue consists largely of new arguments not raised in the

original petition. In particular, petitioners argue that storm

water discharges governed by the permits violate Arizona’s water

quality standards for heavy metals and toxicity. Motion to

Reconsider at 4. In support of this assertion, petitioners

state:

According to EPA, storm water discharges in Phoenix on occasion violate state water quality standards for heavy metals such as copper, lead and zinc. Phoenix discharges also show "frequent exceedences" of water quality standards for fecal coliform. Violations of standards for DDE are shown in storm water discharge data from Mesa.

               *      *    *    *    *    *      *

According to EPA’s own submissions to this Board, test results of storm water discharges in Maricopa County (which encompasses Phoenix, Tempe, and Mesa) showed that 50% of the first flush samples were toxic to test organisms * * * and 25% of the composite samples.

Id. at 4 (citations omitted). Petitioners further state that

"EPA’s assertion that it lacks adequate information to set

numeric or WET limits is specious." Id. at 6. However, as these

arguments were not raised in the original petition, they will not

be considered here. See In re Gary Development, supra.

Finally, petitioners assert that the Board erred in failing

to require that the permits be revised to include a whole

effluent toxicity testing requirement. Review was denied because

petitioners failed to state why the Region’s response to comments

on this same issue was erroneous or deficient in any respect. 6

The Motion to Reconsideration does not dispute the Board’s

rationale for denying review on this issue. That is, petitioners

do not contend that the original petition did anything more than

restate petitioners’ comments on the draft permit without

explaining why the Region’s response to comments was erroneous.2

Accordingly, for the above-stated reasons, Petitioners’

motion for reconsideration of the Board’s May 21, 1998 Order

Denying Review is denied.3

2
Petitioners have also raised additional arguments not raised in the original petition. In particular, petitioners state that EPA has "conced[ed] that its national draft policy recommends that toxicity monitoring be required for storm water[,]" and that such testing "is an ’important’ aspect of the Agency’s toxics control program." Motion to Reconsider at 7. Petitioners also argue that EPA’s Interim Permitting Approach recommends that storm water permits include WET testing requirements. Id. at 8. In its response to the Motion to Reconsider, the Region disputes the inferences petitioners draw from the cited documents. EPA Region IX’s Response to Motion for Reconsideration at 9-10 (arguing that the documents cited by petitioners are not relevant and would not require WET testing in these permits). As previously stated, a motion for reconsideration should not be regarded as an opportunity to raise additional arguments or to reargue the case in a more convincing fashion. Because petitioners’ arguments in this regard were not raised in the original petition for review, we do not consider them here.
3
In its Order Denying Review, the Board dismissed three issues raised in the original petition because these issues were not ripe for review. We reached this conclusion because the Region had withdrawn the portions of the permits of concern to petitioners and has issued modified permits. As the Board stated, Petitioners will now have the opportunity to seek administrative review of the reissued provisions. Petitioners request that the Board reconsider its dismissal on one of these issues (whether the storm water management programs incorporated into the permits fail to quantify the pollution reductions estimated to occur as a result of the pollution control measures (continued...)
 7

So ordered.

Dated: 8/17/98
ENVIRONMENTAL APPEALS BOARD

By: /s/
Kathie A. Stein
Environmental Appeals Judge

3
(...continued) required by the permits). According to petitioners:

In the modifications, EPA has included a requirement that each permittee submit a quantification of the pollution reductions estimated to occur as a result of the storm water programs in the permits. However, EPA has not provided for any action in response to such estimates.

Motion to Reconsider at 9-10. Petitioners have expressed concern that "the Agency will claim that petitioners cannot argue for denial or further amendment of the permits as part of an appeal of the modifications, but rather had to do so in this proceeding." Id. at 10. As the Board stated in its Order Denying Review, however, petitioners will be able to seek administrative review of the reissued permit provisions. This includes an evidentiary hearing request as well as an appeal to the Environmental Appeals Board. In fact, petitioners have filed a petition for review from the modified permit and that petition is currently pending before the Board. Petitioners’ concerns are therefore unwarranted. CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Denying Motion for Reconsideration in the matter of Arizona Municipal Storm Water NPDES Permits for the City of Tucson, Pima County, City of Phoenix, City of Mesa, and City of Tempe, Arizona, NPDES Appeal No. 97-3, were sent to the following persons in the manner indicated:

First Class Mail,
Postage Prepaid:

Craig J. Reece
Laurie Kermish
Office of the City Attorney Assistant Regional Counsel
City of Phoenix
U.S. EPA Region IX
200 West Washington, Suite 1300 75 Hawthorne Street
Phoenix, AZ 85003-1611
San Francisco, CA 94105-3901

Stephen J. Burg
David S. Baron
Environmental Attorney
Arizona Center for Law in
Mesa City Attorney’s Office the Public Interest
P.O. Box 1466
1840 E. River Rd., Suite 207
Mesa, AZ 85211-1466
Tucson, AZ 85718-5892

Karen S. Gaylord
James W. Glock, Deputy Dir.
Assistant City Attorney City of Tucson, Department of Tempe City Attorney’s Office Transportation
P.O. Box 5002
P.O. Box 27210
Tempe, AZ 85280
Tucson, AZ 85726-7210

Harlan Agnew
Susan Gilson
Deputy County Attorney
Executive Director
Office of the Pima
NAFSMA
County Attorney
1401 Eye St., N.W., Suite 900
Civil Division
Washington, D.C. 20005
32 N. Stone, Suite 1500
Tucson, AZ 85701-1412
Ken Kirk
AMSA
1000 Connecticut Ave, NW
Washington, D.C. 20036-5302
Mark Schwartz
Randy Johnson
President, NLC
President NACo
1301 Pennsylvania Ave, N.W. 440 First Street, N.W. Washington, D.C. 20004 Washington, D.C. 20001

Dated: 8/17/98
/s/
Annette Duncan
Secretary