Knauf Fiber Glass, GmbH

Plain-English summary

The EAB had denied review of the reissued PSD permit for Knauf Fiber Glass's proposed fiberglass facility in California. Eight petitioners sought reconsideration, raising concerns about pollution limits, environmental justice, permit technology, and the scope of the earlier decision. The Board held that continued disagreement, new arguments, general objections, or attempts to reargue issues did not show the legal or factual error required for reconsideration. The Board denied all of the timely motions, including one challenge that was outside the Board's permit-review jurisdiction.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 63.1384, 124.19, and 124.20
• Outcome: Motions for reconsideration were denied.
• Key point: Reconsideration is limited to a demonstrated legal or factual error and is not an opportunity to reargue the permit appeal.

Full text (EPA EAB public release)

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

                         )

In re: )
)
Knauf Fiber Glass, GmbH ) PSD Appeal Nos.
) 99-8 through 99-72
PSD Permit No. 97-PO-06 )
_____)

      ORDER DENYING MOTIONS FOR RECONSIDERATION

Timely motions for reconsideration of the Board’s

decision in In re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 99-

8 et al. (EAB, Mar. 14, 2000), 9 E.A.D. ___ (Knauf II), were

received from 1) Mary C. Scott, Petition No. 99-10, 2) Betty

Doty, Petition No. 99-13, 3) Ivan A. Hall, Petition No. 99-21,

4) Vicki C. Caraway, Petition No. 99-33, 5) Joanna L. Caul,

Petition No. 99-35, 6) Heidi Silva, Petition No. 99-38, 7)

Linda A. Andrews, Petition No. 99-63, and 8) Joy L. Newcom,

Petition No. 99-71.1 Knauf II denied these movants’ petitions

1Untimely motions for reconsideration were filed by

Citizens for Cleaner Air, et al., Petition No. 99-16, and
Arnold J. Erickson, Petition No. 99-17. In accordance with
40 C.F.R. § 124.19(g), motions for reconsideration must be
filed –- that is, “received,” see In re Beckman Production
Services, 5 E.A.D. 10, 15 (EAB 1994)-- within ten days after
service of the Board’s Order Denying Review. In cases where
service of an order is effected by mail, three additional days
are added to the prescribed period. 40 C.F.R. § 124.20(d).
The Board’s decision in Knauf II was served by mail on March
15, 2000, making the due date for filing a motion for
reconsideration March 28, 2000. The motion of Citizens for
 2

for review, which were seeking review of a reissued permit

determination made by the Shasta County Air Quality Management

District (SCAQMD) on remand from an earlier decision on appeal

involving the same proceeding.2

The regulation governing motions for reconsideration of

final orders such as Knauf II requires that a motion “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

mistake of law or fact. In re Knauf Fiber Glass, GmbH, PSD

Cleaner Air, et al., was not filed until March 29, 2000. As a
result the motion is late and is denied as untimely.
(Documents received by the Board after normal business hours
are not accepted for filing until the following business day.
In this instance, the motion was received by facsimile copy
after normal business hours on Tuesday March 28 and,
therefore, was not logged in for filing until Wednesday March
29.) The motion of Arnold J. Erickson was not received by the
Board until April 3, 2000 (as an attachment to a letter
addressed to the Administrator, dated March 20, 2000). As a
result the motion is late and is denied as untimely.
2In the earlier appeal, the Board issued a decision
denying review of many issues raised on appeal, but also
remanding SCAQMD’s permit decision on two issues. In re Knauf
Fiber Glass, GmbH, PSD Appeal Nos. 98-3 through 98-20 (EAB,
Feb. 4, 1999), 8 E.A.D. __ (“Knauf I”). Knauf II is the
product of the appeals that followed the re-issuance of the
permit following the remand in Knauf I.
 3

Appeal Nos. 98-3 et al., at 3 (EAB, Feb. 4, 1999) (Order on

Motions for Reconsideration); In re Arizona Municipal Storm

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

17, 1998) (Order Denying Motion for Reconsideration). The

reconsideration process “should not be regarded as an

opportunity to reargue the case in a more convincing fashion.”

In re Southern Timber Prods., 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. Arizona at 2, 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).

With this as our context, we consider each of the motions

in turn.
 4

Scott, Petition No. 99-10

This motion raises objections to determinations made (or

not made) in the Board’s decision regarding the availability

of proprietary process technology, the size of the wet

electrostatic precipitator (WEP), use of multiple WEPs,

selection of the PM10 emission limits, and environmental

justice. The objections, for the most part, amount to nothing

more than disagreement with the determinations made by the

Board in deciding not to review the reissued permit. For

example, Petitioner objects to the use of a “safety factor” of

1.25 in the formula for calculating the PM10 emission limit.

See Knauf II at 20-21. This same subject and Petitioner’s

same objections were addressed once already in the Board’s

decision, id., and do not need to be addressed again in

response to the motion for reconsideration. Expression of

continued disagreement with a particular outcome does not,

without more, provide the requisite demonstration of error to

warrant reconsideration of the decision.

In a couple of instances, Petitioner alleges error of a

specific nature. For example, Petitioner asserts that the

figures used by SCAQMD in setting the PM10 emission limit are

clearly erroneous, claiming that SCAQMD used the total
 5

suspended particulate (TSP) for the CertainTeed plants rather

than the PM10 limits so as to mislead the public and the

Board. As we noted in the decision, the permit limits in the

CertainTeed permits express PM10 limits differently from the

way PM10 limits are expressed in the reissued permit. Knauf

II at 19, n.13. Petitioner argues that they “are not stated

any differently in the CertainTeed permit than in the Knauf

permit.” Petition at 3. However, Petitioner then states that

“SCAQMD simply used an entirely different limit (TSP) to

compare with Knauf’s PM10 emission limit.” Id. It is unclear

to us what point the Petitioner is attempting to make by this

seeming self-contradiction. Under the circumstances, the

allegation of error does not persuade us to reconsider our

decision.

With respect to environmental justice, the motion

disputes the statement in the Board’s decision that “there has

been no serious contention that the additional PM10 emissions

from the proposed facility would in fact lead to an adverse

impact.” Petitioner claims this statement to be “clear error”

because (i) California regulations governing PM10 are more

stringent than the federal PM10 standards, (ii) Shasta County

is non-attainment for PM10 under California regulations, and
 6

(iii) EPA’s Environmental Justice Guidance allows use of

local, regional, and state standards in determining whether an

effect is significant. Given the foregoing, Petitioner

maintains that the air quality impacts from the proposed

facility will necessarily be significant and adverse.

Petitioner claims that the Environmental Impact Review (EIR)3

for this project supports this conclusion. The administrative

record, however, suggests a contrary conclusion. As noted in

EPA Region 9's response to comments on the environmental

justice issue, “the EIR did not identify any major

environmental impacts on the community. According to the EIR,

‘impacts on public health from the operation of the proposed

project were determined to be less than significant’ (Knauf

Fiber Glass Manufacturing Facility Revised Draft EIR, July

1997). The EIR identified the applicable federal and state

regulations that will be met. The EIR has been challenged,

but upheld by the courts.” EPA’s Response to Public Comments

on the Knauf Environmental Justice Review (Aug. 12, 1999) (AR

9648). Petitioner has not cited or otherwise demonstrated any

basis for refuting these conclusions by Region 9. Therefore,

we decline to reconsider the environmental justice analysis.

3The EIR is a document prepared to comply with the

California Environmental Quality Act.
 7

Doty, Petition No. 99-13

This motion asserts that the Knauf plant is “designed so

that it couldn’t be shut down, even in a worst-case scenario,”

such as when pollution from other sources such as forest fires

causes severe, excessive smoke. Petitioner claims that this

concern was communicated to SCAQMD but she regards the

response she received as inadequate. Petitioner does not

describe the response or state in what respect it is

inadequate. Although Petitioner cross-references letters she

submitted in September 1999 in support of her petition for

review, her failure to provide an explanation of the alleged

inadequacy in the motion itself necessarily defeats the

motion, since the motion consequently fails to supply a

supporting rationale for reconsidering the Board’s decision.

Moreover, merely repeating (here, cross-referencing)

assertions made in an earlier phase of the proceeding does not

provide adequate grounds for reconsideration.

Hall, Petition No. 99-21

This motion focuses on Part II.B.2 of the Board’s

decision, which addresses the use of wet electrostatic

precipitators (WEPs). Petitioner asserts that there is no

technical analysis to support SCAQMD’s analysis of Knauf’s
 8

single WEP configuration versus that of CertainTeed’s multiple

WEP configuration. Petitioner’s assertion is, at best, an

attempt to reargue and more finely hone positions and matters

previously considered, namely, the issue of single versus

multiple WEP configurations. SCAQMD responded in detail to

Petitioner’s extensive comments on the reissued permit that

raised, inter alia, WEP issues, and the Board was aware of

those comments and responses when it rendered its decision not

to review SCAQMD’s permit determination. See AR 9740-46. See

Knauf II at 18-19. As indicated previously, a motion for

reconsideration should not be regarded as an opportunity to

reargue the case in a more convincing fashion. Manifest error

in the Board’s decision has not been shown by Petitioner’s

motion.

Caraway, Petition No. 99-33

This motion expresses dissatisfaction with the adequacy of

the Board’s explanation of the relationship between proprietary

processes and selecting the best available control technology

for the proposed facility. The motion also asserts that Shasta

County is a non-attainment area for PM10 (apparently referring

to a state PM10 standard, not the applicable federal standard)

and that Knauf has a history of “violations” at another one of
 9

its fiberglass plants and cannot be trusted to comply with the

permit. Also, because of the alleged violations, the motion

asserts that emissions data from the other plant should not be

used as the basis for establishing emissions levels at the

proposed Shasta plant. Finally, the motion expresses

dissatisfaction with the adequacy of the Board’s explanation of

the environmental justice issues.

All of Petitioner’s concerns have been raised and

addressed by SCAQMD, and considered, in turn, by the Board.

The fact that a petitioner remains dissatisfied with the

responses does not by itself, as previously stated, provide a

sufficient basis for reconsidering a decision. None of these

assertions in any way demonstrates any error in the Board’s

decision not to review the SCAQMD permit determination on

remand.

Caul, Petition No. 99-35

This motion, distilled to its essence, expresses

disagreement with Part II.B.1 of Knauf II, wherein the

Environmental Appeals Board left undisturbed SCAQMD’s

conclusion that use of a competitor’s process technology was

not a feasible, i.e., available, control option for the
 10

proposed Knauf plant. Notwithstanding the Petitioner’s

disagreement with SCAQMD’s conclusion, nothing in the motion

persuades the Board that the decision was in error. The issue

of the availability of a competitor’s proprietary process

technology was also addressed by the Board in Knauf I. Thus,

there is little more for the Board to say by way of explaining

its reasons in support of the decision.

Silva, Petition No. 99-38

This motion basically resubmits an earlier letter by the

same Petitioner as the basis for reconsideration. The letter

itself was not part of the original petition and was not filed

with permission of the Board. It, like several other

unsolicited letters received from various Petitioners during

the course of this proceeding, was nonetheless placed in the

administrative record of the proceeding before the Board as a

record of their opposition to the project. Because the subject

letter was received prior to Knauf II, its ultimate disposition

will be deemed covered by that decision. Consequently,

resubmittal of the letter does not constitute an appropriate

basis for reconsideration.
 11

Andrews, Petition No. 99-63

This motion asserts that the Petitioner never received a

response from SCAQMD regarding a concern she had expressed over

the conduct of “short-term experimental production runs without

conducting additional performance tests.” The Petitioner is

referring to a provision, § 63.1384(a)(13), of the National

Emissions Standards for Hazardous Air Pollutants rule for the

fiberglass manufacturing industry. 64 Fed. Reg. 31,695 (June

14, 1999). Petitioner states that she raised a concern about

this provision with SCAQMD but never got an answer. The exact

nature of her concern is not set forth in the motion. One

possibility might be that Petitioner is dissatisfied with a

rule that allows short-term experimental production runs

without first conducting performance tests. Such an objection

is in the nature of a challenge to the rule, rather than a

challenge to a permit condition. Such a challenge would be

beyond the jurisdiction of the Environmental Appeals Board, and

may not be entertained in an individual permit proceeding.

Therefore, the challenge must also be dismissed as ineligible

for consideration in a motion for reconsideration. Finally,

given the motion’s general lack of specificity, the motion is

also denied for that reason.
 12

Newcom, Petition No. 99-71

This motion, for the most part, raises issues well beyond

the scope of Knauf II, including in particular such matters as

the Petitioner’s preference for a Shasta Lake that is less

industrialized and more oriented toward tourism, education and

cottage industries. Petitioner also expresses evident

frustration in her inability, and that of other opponents of

the facility, to fend off the siting of the proposed facility

in Shasta Lake. These and other matters raised in the motion

are obviously heartfelt but ultimately involve political

choices that fall outside the scope of matters that can be

considered in this permit proceeding under the Clean Air Act.

For the reasons stated above, the Petitioners’ motions for

reconsideration are denied.

So Ordered.



                          ENVIRONMENTAL APPEALS BOARD




                          By:        /s/
                               Ronald L. McCallum

Dated: 2/10/2000 Environmental Appeals Judge
 CERTIFICATE OF SERVICE

 I hereby certify that copies of the foregoing Order

Denying Motions For Reconsideration in the Matter of Knauf
Fiber Glass, GmbH, PSD Appeal Nos. 99-8 through 99-72, were
sent to the following persons in the manner indicated:

By First Class U.S. Mail: Mary C. Scott (PSD 99-10)
12982 Beltline Road
Redding, CA 96003

                        Betty Doty
                        (PSD 99-13, PSD 99-57, and PSD 99-72)
                        6899 Riata Drive
                        Redding, CA 96002


                        Richard L. Harriman, Esq.
                        (PSD 99-16)
                        Law Offices of Richard L. Harriman
                        643 Flume Street
                        Chico, CA 95928


                        Arnold Erickson (PSD 99-17)
                        Post Office Box 239
                        Igo, CA 96047


                        Ivan Hall (99-21)
                        2575 Star Drive
                        Redding, CA 96001


                        Vicki Caraway
                        (PSD 99-32, 99-33, and 99-34)
                        Post Office Box 740
                        Shasta, CA 96087


                        Joanna L. Caul (PSD 99-35)
                        4181 Johnson Street
                        Shasta Lake City, CA 96019-9656


                        Heidi Silva (PSD 99-38)
                        Post Office Box 172
                        31521 Wildcat Ranch Road
                        Whitmore, CA 96096

Linda A. Andrews (PSD 99-63)
3443 Somerset Avenue
Redding, CA 96002

                   Joy Newcom (PSD 99-71)
                   3702 Fujiyama Way
                   Redding, CA 96001


                   Russell Mull, Director
                   Shasta County Department of Resource
                   Management
                   Air Quality Management District
                   1855 Placer Street, Suite 101
                   Redding, CA 96001


                   R. Clark Morrison, Esq.
                   Alicia Guerra, Esq.
                   Morrison & Foerster, L.L.P.
                   101 Ygnacio Valley Rd., Suite 450
                   Post Office Box 8130
                   Walnut Creek, CA 94596-8130

By Interoffice Mail: Gregory B. Foote
M. Lea Anderson
Office of General Counsel
U.S. EPA (MC 2344)
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

By Pouch Mail: Ann H. Lyons
Office of Regional Counsel
Region IX
U.S. EPA
75 Hawthorne Street
San Francisco, CA 94105

Date: 4/10/2000 /s/
Mildred T. Johnson
Staff Assistant