Spitzer Great Lakes Ltd., Co. (Board decision, August 4, 2000)

Plain-English summary

The Environmental Appeals Board had earlier affirmed an initial decision requiring Spitzer Great Lakes Ltd. to pay a $165,000 civil penalty. Spitzer asked the Board to reconsider, allow oral argument, and vacate or suspend the final order. The Board held that oral argument is discretionary and that Spitzer had not shown a mistake of law or fact or that oral argument would materially assist resolution of the issues. The Board denied the motion, leaving the penalty order in place.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.16, 22.27, and 22.30.
• Outcome: Motion for reconsideration denied, leaving the $165,000 civil penalty in place.
• Key point: Reconsideration requires a demonstrable legal or factual error, and oral argument before the EAB is discretionary.

Full text (EPA EAB public release)

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

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In re: )
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SPITZER GREAT LAKES LTD., CO. ) TSCA Appeal No. 99-3
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Docket No. TSCA-V-C-082-92
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ORDER DENYING MOTION FOR RECONSIDERATION

On June 30, 2000, this Board issued a Final Decision and Order (“Final Order”) in the above

captioned matter. In that Final Order we affirmed an initial decision issued pursuant to 40 C.F.R.

§ 22.27, and ordered Spitzer Great Lakes Ltd. (“Spitzer”) to pay a civil penalty of $165,000. In re

Spitzer Great Lakes, TSCA Appeal No. 99-3, slip op. at 29 (EAB, June 30, 2000), 9 E.A.D. ____.

By motion filed on July 14, 2000, Spitzer requests that we reconsider our Final Order, allow Spitzer to

present an oral argument, and either vacate or suspend the Final Order until we hear oral argument.

Motion for Reconsideration at 2. The U.S. Environmental Protection Agency, Region 5 (“Region”)

filed a response on July 20, 2000, which stated that oral arguments occur only at the discretion of the

Board.

The Board has explained that, “[r]econsideration 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 Appeal Nos. 99-8 to -72, Order on Motions for Reconsideration

1 at 3 (EAB, Feb. 4, 2000). As discussed below, Spitzer has not shown a mistake of law or fact that

would warrant reconsideration.

In federal appeals court litigants generally have a right to oral argument. Fed. R. App. P.

34(a)(2). That right, however, does not apply in federal administrative proceedings, nor does due

process require that federal agencies confer such a right. See Federal Communications Commission

v. WJR, The Goodwill Station, 337 U.S. 265, 274-275 (1949) (reversing a Court of Appeals

decision that would have recognized a right to oral argument in administrative proceedings). The

regulations that establish the procedures before this Board are located at 40 C.F.R. Part 22.1 Pursuant

to those regulations, oral arguments are granted at the sole discretion of the Board. 40 C.F.R.

§§ 22.16(d), 22.30(d).

Generally, the practice of the Board has been not to hold oral arguments when we determine

that such arguments will not be of material assistance in the resolution of an issue. See, e.g., In re BWX

Technologies, RCRA (3008) Appeal No. 97-5, slip op. at n. 29 (EAB, April 4, 2000) 9 E.A.D.

____; In re General Motors Corporation, CPC Pontiac Fiero Plant, 7 E.A.D. 465, n. 28 (EAB

1997); In re Rybond, Inc., 6 E.A.D. 614, n. 3 (EAB 1996); In re Everwood Treatment Company, 6

E.A.D. 589, n. 40 (EAB 1996); In re National Cement Company of California, 5 E.A.D. 415. n.

25 EAB (1994); In re Great Lakes Division of National Steel Corp., 5 E.A.D. 355, n. 1 (EAB

1994).

As we observed in the Final Order in this case, Spitzer agreed in this proceeding that no

material facts were in dispute that would affect either liability or penalty. In re Spitzer Great Lakes,

TSCA Appeal No. 99-3, slip op. at 7, 10 (EAB, June 30, 2000) 9 E.A.D. ____, (citing Response of

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The regulations at 40 C.F.R. Part 22 were amended by 64 Fed. Reg. 40,176 (July 23, 1999), effective August 23, 1999.

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Spitzer Great Lakes to Order to Show Cause at ¶ 1, Motion to Cancel Hearing at 1). Moreover,

Spitzer did not mount a meaningful challenge to the manner in which the law and policy pertaining to

penalty assessment were applied to the undisputed facts. See id. at 15. In light of these and other

considerations, we did not then, nor do we now, find that oral argument would be of material assistance

in the resolution of the issues in this case. The fact that the Board did not rule on a previous request for

oral argument prior to issuing the decison in this matter was an oversight, but in no way alters our

current assessment that oral argument and reconsideration are unnecessary. Accordingly Spitzer’s

Motion for Reconsideration is denied.

So ordered

Dated: 8/04/00
ENVIRONMENTAL APPEALS BOARD

By: /s/
Scott C. Fulton
Environmental Appeals Judge

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 Certificate of Service

I hereby certify that copies of the foregoing Order Denying Motion for Reconsideration in the matter of Spitzer Great Lakes, Ltd., TSCA Appeal No. 99-3, were sent to the following persons in the manner indicated:

First Class Mail,
Anthony B. Giardini
Postage Prepaid
Bradley & Giardini Co., L.P.A.
520 Broadway, 3rd Floor
Lorain, Ohio 44052

Terrance M. Fay
Renesch Friedlander Coplan & Aronoff, LLP 88 East Broad Street, Suite 900
Columbus, Ohio 43215

Inter-Office Mail
Richard R. Wagner
Associate Regional Counsel
U.S. Environmental Protection Agency, Region V 77 West Jackson Boulevard
Chicago, Il 60604-3590

Dated: 8/07/00
/s/
Annette Duncan
Secretary

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