Pyramid Chemical Company (Board decision, November 8, 2004)

Plain-English summary

Pyramid Chemical Company asked the Environmental Appeals Board to reconsider its September 16, 2004 Default Order and Final Decision. Pyramid argued that the Board lacked authority under RCRA to require reimbursement to the Netherlands for disposal costs and that the matter should be stayed while related federal court proceedings continued. The Board rejected the first argument because it raised a new legal theory and rejected the second because it repeated an argument already decided. The motion for reconsideration was denied.

Decision snapshot

• Cited authorities: 40 C.F.R. § 22.32; 42 U.S.C. § 6928(a)
• Outcome: Pyramid\x27s motion for reconsideration was denied.
• Key point: A motion for reconsideration cannot be used to introduce a new legal theory or reargue an issue already decided without showing a factual or legal error.

Full text (EPA EAB public release)

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

)
In re: )
) RCRA-HQ-2003-0001
Pyramid Chemical Company )
)
)

ORDER DENYING MOTION FOR RECONSIDERATION

I. BACKGROUND

On October 22, 2004, the Respondent in this matter, Pyramid

Chemical Company (“Pyramid”), filed a motion for reconsideration

of the Environmental Appeals Board’s September 16, 2004 Default

Order and Final Decision (“Default Order”) in the above-captioned

matter. See Pyramid Chemical Company’s Motion for

Reconsideration (Oct. 22, 2004) (“Motion”); Pyramid Chemical

Company’s Memorandum in Support of its Motion for Reconsideration

(Oct. 22, 2004) (“Memorandum in Support”).1 Pyramid’s Motion and

Memorandum in Support raise two issues: (1) whether the Board had

the statutory authority under the Resource Conservation and

Recovery Act (“RCRA”) to require that Pyramid comply with

provisions of a Compliance Order requiring Pyramid to reimburse

the Netherlands Environmental Ministry for costs associated with

1
The Board received the Motion and Memorandum in Support by facsimile on October 22, 2004. The Board then received each document by mail on October 25, 2004. 2 disposal of materials Pyramid sent to the Netherlands (Motion at

1; Memorandum in Support at 2-4); and (2) whether the matter

should be stayed pending the outcome of proceedings before the

United States District Court for the Eastern District of

Pennsylvania (Motion at 1; Memorandum in Support at 4-5. U.S.

EPA’s Office of Enforcement and Compliance Assurance has filed a

response opposing the Motion and Memorandum in Support.

For the reasons set forth below, Pyramid’s motion for

reconsideration is denied.

II. DISCUSSION

Under 40 C.F.R. § 22.32, motions for reconsideration must

set forth the matters claimed to have been erroneously decided

and the nature of the alleged errors. As this Board has said on

numerous occasions, 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 John A. Capozzi, RCRA(3008) Appeal No. 02-01,

slip op. at 3 (EAB, Oct. 16, 2003) (Order Denying Motion for

Reconsideration); In re Michigan CAFO Gen. Permit, NPDES Appeal

No. 02-11, slip op. at 3 (EAB, July 8, 2003) (Order Denying

Motion for Reconsideration); In re Hawaii Elec. Light Co., PSD 3 Appeal Nos. 97-15 through 97-22, slip op. at 6 (EAB, Mar. 3,

1999) (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. In re Ariz. Mun. Storm Water NPDES Permits, NPDES

Appeal No. 97-3, slip op. at 2 (EAB, Aug. 17, 1998)(Order Denying

Motion for Reconsideration). In addition, a motion for

reconsideration cannot be employed as a vehicle to introduce new

evidence that could have been adduced earlier; nor can such a

motion serve as the occasion to tender a new legal theory for the

first time. In re Hawaii Elec. Light Co., PSD Appeal Nos. 01-24

through 01-29, slip op. at 5-6 (EAB, Jan. 29, 2002) (Order

Denying Motion for Reconsideration) (citing Publishers Resource,

Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th

Cir. 1985)).

As stated above, Pyramid raises two issues in support of its

motion for reconsideration. First, Pyramid questions the Board’s

statutory authority under RCRA to require that Pyramid comply

with provisions of a Compliance Order requiring Pyramid to

reimburse the Netherlands for costs associated with disposal of

materials Pyramid sent to the Netherlands. However, because this

constitutes a new legal theory raised for the first time in

Pyramid’s Motion to Reconsider, we decline to consider it at this 4 late date. As the Board stated in its September 16, 2004 Default

Order and Final Decision:

The issue of Complainant’s authority to issue a RCRA Section 3008(a) compliance order with reimbursement provisions is not squarely presented to the Board; although Respondent seeks to avoid imposition of the compliance order sought by Complainant, Respondent does not challenge Complainant’s authority to issue a compliance order providing for reimbursement.

Pyramid Chemical, slip op. at 39 n.40.2 Pyramid’s Motion for

reconsideration has not challenged this conclusion. Under these

circumstances, Pyramids argument in this regard is rejected as a

basis for reconsideration.

Second, Pyramid argues that this matter should be stayed

pending the outcome of proceedings before the United States

District Court for the Eastern District of Pennsylvania.

Pyramid’s argument in this regard, however, is identical to an

argument raised and rejected by the Board in the September 16,

2
The Board further stated:

Under the limited context in which the Board is evaluating Complainant’s Compliance Order, the reimbursement provisions do not appear to be outside the scope of Complainant’s authority. See In re A.Y.
McDonald Indus., 2 E.A.D. 402, 428 (CJO 1987) (“[RCRA] confers broad discretion on the Administrator (and derivatively to his delegatees) to fashion appropriate compliance orders for RCRA violations. See 42 U.S.C.
§ 6928(a).”) (emphasis added); accord In re Arrcom, Inc., 2 E.A.D. 203, 210-214 (CJO 1986).

Default Order at 39-40 n.40. Pyramid has not pointed to any factual or legal errors in this conclusion. 5

2004 Default Order and Final Decision. See Pyramid Chemical Co.,

slip op. at 40-42. Pyramid’s Motion does not argue that the

Board’s decision denying the stay request was the result of any

factual or legal errors. We therefore decline to reconsider our

decision on this issue.

III. CONCLUSION

For the above-stated reasons, Pyramid’s Motion for

Reconsideration of the Board’s September 16, 2004 Default Order

and Final Decision is denied.

So ordered.3

Dated: Nov. 8, 2004

ENVIRONMENTAL APPEALS BOARD

By: /s/
Ronald L. McCallum
Environmental Appeals Judge

3
In responding to Pyramid’s Motion for reconsideration, EPA’s Office of Enforcement and Compliance Assurance argues that the Motion and Memorandum in Support were untimely. However, given the above discussion, we do not reach this issue. CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Denying Motion for Reconsideration in the matter of Pyramid Chemical Company, RCRA-HQ-2003-0001, were sent to the following persons in the manner indicated:

First Class Mail,
Return Receipt Requested:
Janet S. Kole
Flaster/Greenberg, PC
1810 Chapel Ave. West - Third Floor
Cherry Hill, NJ 08002

Pyramid Chemical Company
54 North Ridge Ave.
Ambler, PA 19002

Interoffice Mail:
Robert A. Kaplan, Director (2248-A)
U.S. EPA
Multimedia Enforcement Division
1200 Pennsylvania Ave. NW
Washington. D.C. 20460

Kelly Ann Kaczka (2248-A)
U.S. EPA
Multimedia Enforcement Division
1200 Pennsylvania Ave. NW
Washington. D.C. 20460

Pouch Mail:
Cheryl L. Jamieson (3RC30)
Senior Assistant Regional Counsel
U.S. EPA Region III
1650 Arch St.
Philadelphia, PA 19103

Dated: Nov. 10, 2004
/s/
Annette Duncan
Secretary