Bear Lake Properties, LLC (Board decision, July 26, 2012)

Plain-English summary

EPA Region 3 issued two permits authorizing Bear Lake Properties, LLC to construct and operate Class II underground injection wells. In its June 28, 2012 decision, the Environmental Appeals Board remanded part of the permit matter and denied review of other issues, including the petitioners' general assertion about population growth and possible economic impacts. William A. Peiffer, Jr. then sought partial reconsideration, arguing that population growth and potential economic impacts should have been considered in defining the area of review for the wells. The Board denied the motion because that argument was not raised in the petition for review, and reconsideration is not an opportunity to present a new theory or reargue the case. The order does not state a penalty.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 1.25(e)(1), 124.19(a), and 146.6(b)
• Outcome: The motion for partial reconsideration was denied.
• Key point: A party may not use reconsideration to present an argument that was omitted from its original petition for review.

Full text (EPA EAB public release)

            BEFORE THE ENVIRONMENTAL APPEALS BOARD
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, DC
                         )
                                                                          JUL 2 6 2012

In re: ) Clerk, Environmental Appeals Board
INITIALS
)
Bear Lake Properties, LLC ) UIC Appeal No. 11-03
)
UIC Permit Nos. PAS2D215BWAR )
& PAS2D216BWAR )
)

      ORDER DENYING MOTION FOR PARTIAL RECONSIDERATION


                                   I. BACKGROUND

   On June 8, 2011, U.S. Environmental Protection Agency Region 3 (the "Region") issued

two Underground Injection Control ("UIC") permits to Bear Lake Properties, LLC ("Bear Lake") authorizing construction and operation of two Class II injection wells. By petition filed with the Environmental Appeals Board ("Board") on July 8, 2011, Mr. William A. Peiffer, Jr. and Mr. Paul T. Stroup (together "Petitioners") sought EAB review of the permits pursuant to 40 C.F.R.
§ 124.19(a). On June 28, 2012, the Board issued an Order Denying Review in Part and Remanding in Part. See In re Bear Lake Props., LLC, UIC Appeal No. 11-03 (EAB June 28, 2012), 15 E.A.D. [illegible] (hereinafter "Bear Lake Decision"). Among other things, the Board denied review of Petitioners' general assertion that the Region had clearly erred by failing to consider population growth and possible economic impacts of the injection wells. See id. at 18-19.

   On July [illegible] Mr. Peiffer filed a motion for partial reconsideration of the Bear Lake

Decision. Petitioner's Motion for Partial Reconsideration (July 9, [illegible]) ("Motion"). The Motion states that reconsideration is warranted because the Board [illegible] population growth and the potential [illegible] impacts [illegible] scope of Board [illegible] Motion at 3. In support of this [illegible], the Motion states that among the factors
[illegible] must be considered [illegible] determining the [illegible] of review surrounding the [illegible] wells are "population [illegible] ground-water use [illegible] dependence." Id. (citing 40 C.F.R.
§ 146.6(b)). The [illegible] filed a [illegible] to the Motion. [illegible] Response to Motion for Reconsideration (July 17, 2012).

                                  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 [illegible] 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). [Illegible] the Board has explained, "[r]econsideration is generally reserved for cases in which the Board is shown to have committed a demonstrable error, such as a mistake of law or fact." In re Russell City Energy Ctr., PSD Appeal Nos. 10-01 through 10-05, at 2 (EAB Dec. 15, 2010) (Order Denying Motion and Supplemental Motion for Reconsideration and Clarification) (quoting In re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 97-20 through 98-20, at 3 (EAB May 4, 1999) (Order on Motions for Reconsideration)); In re Shell Gulf of Mex., Appeal Nos. 10-01 through 10-04, at [illegible] (EAB Feb. 10, 2011) (Order on Motions for Reconsideration and/or Clarification); [illegible] Dynamics, Inc., PSD Appeal Nos. 99-
[illegible] (EAB July 13, 2000) (Order Denying [illegible] Reconsideration or Clarification [illegible] Motion for Reconsideration). The filing of a motion for reconsideration "should not be regarded as an opportunity to reargue the case in a more convincing fashion." Knauf at [illegible] (quoting In re S. Timber Prods., Inc., 3 E.A.D. 880,
[illegible] (EAB 1992)); Russell City, at [illegible]; accord [illegible] Dynamics, at [illegible]; In re Haw. Elec. Light Co., Inc., PSD Appeal Nos. 97-15 through [illegible], at 6 (EAB Mar. 3, 1999) (Order Denying Motion for Reconsideration). "A party's failure to present [illegible] instance does not entitle it to a second [illegible] in the form of a motion to reconsider." [illegible] Elec. [illegible], at 6; see also Russell City, at [illegible].

   As stated [illegible] the Motion in this case asserts that reconsideration is warranted because

population and ground water use are factors to be considered [illegible] calculating the area of review under 40 C.F.R. § 146.6(d). Because this argument was not raised in the petition for review, the Board declines to consider the argument in a motion for reconsideration. Reconsideration is not an opportunity to reargue a case in a more convincing fashion, nor may it serve as the occasion to tender new legal theories for the first time. In re Core Energy, LLC, UIC Appeal No. 07-02, at 3 n. 1 (EAB Jan. 15, 2008) (Order Denying Motion for Reconsideration); Knauf, at 2-3. Under these circumstances, Mr. Peiffer has failed to convince the Board that reconsideration is warranted. The Motion is therefore denied.

   So ordered. [illegible]


                                ENVIRONMENTAL APPEALS BOARD


                                By:
                                                Kathie A. Stein
                                         Environmental Appeals Judge


          [illegible]


   The panel deciding this matter is comprised of Environmental Appeals Judges

Catherine R. McCabe and Kathie A. Stein. See 40 C.F.R. § 1.25(e)(1).

                                  CERTIFICATE OF SERVICE

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

Reconsideration in the matter of Bear Lake Properties, LLC, UIC Appeal No. 11-03, were sent to the following persons in the manner indicated:

By Certified Mail
Return Receipt Requested:

                         Emily A. Collins
                         Oday Salim
                         University of Pittsburgh School of Law Environmental Law Clinic
                         PO Box 7226
                         Pittsburgh, PA 15213-0221

                         Paul T. Stroup
                         450 Scrambling Road
                         Cory, PA 16407

By Pouch Mail:
Nina Rivera
Asst. Regional Counsel (3RC20)
U.S. EPA Region 3
1650 Arch Street
Philadelphia, PA 19103

Dated: JUL 2 6 2012
Secretary