West Bay Exploration Co. (Board decision, October 21, 2014)

Plain-English summary

Peter Bormuth asked the Environmental Appeals Board to reconsider its order denying his challenge to a West Bay Exploration Company underground injection control permit. He argued that the Board used the wrong review standard, should have considered broader aquifer concerns, acted with bias, and should have considered additional scientific articles and a prior permit. The Board rejected those arguments, explaining that reconsideration is not a chance to reargue issues or submit arguments and evidence that could have been presented earlier. The Board denied the motion for reconsideration.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19(m), 124.19(a)(4)(i), 124.19(a)(1), 1.25(e)(2)
• Outcome: The motion for reconsideration was denied.
• Key point: Reconsideration requires a demonstrable error of law or fact and does not permit new arguments or evidence that could have been raised earlier.

Full text (EPA EAB public release)

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

                                 )

In re: )
)
West Bay Exploration Co. ) UIC Appeal No. 14-66
)
UIC Permit No. MI-075-2D-0010 )
)

                     ORDER DENYING RECONSIDERATION

     Mr. Peter Bormuth seeks reconsideration of the Environmental Appeals Board's

September 22, 2014 order denying his petition challenging an Underground Injection Control

permit granted by U.S. Environmental Protection Agency Region 5 ("Region") to West Bay

Exploration Company, Permit No. MI-075-2D-0010. 1 See In re West Bay Exploration Co., UIC

Appeal No. 14-66 (EAB Sept. 22, 2014) (Order Denying Review). Reconsideration is only

appropriate upon a showing of "demonstrable error, such as a mistake of law or fact." In re Bear

Lake Properties, LLC, UIC Appeal No. 11-03, at 2-3 (EAB July 26, 2012) (citing cases); see

40 C.F.R. § 124.19(m). A reconsideration motion should focus on identifying "clearly

erroneous factual or legal conclusions." In re S. Timber Prods., Inc., 3 E.A.D. 880, 889

(CJO 1992) (quoting In re City of Detroit, TSCA Appeal No. 89-5, at 2 (CJO Feb. 20, 1991

(Order)). It is not an opportunity to reargue the original petition, either by raising arguments or

facts that could have been presented earlier or attempting to frame prior arguments in a more

convincing fashion. Id.; In re Hawaii Elec. Light Co., PSD Appeal Nos. 97-15 through 97-22,

at 6 (Mar. 3, 1999) (Order Denying Motion for Reconsideration). None of the arguments raised

by Mr. Bormuth demonstrate a clear error of fact or law in the Board's decision on this matter.

    First, Mr. Bormuth claims the Board erred by not applying a "preponderance of the

evidence" standard in reviewing the Region's permit decision. Motion for Reconsideration at 3.

This is incorrect. The EPA regulation governing permit appeals to the Board specifies that a

permit challenger "must demonstrate that each challenge to a permit decision is based on: (A) A

finding of fact or conclusion of law that is clearly erroneous, or (B) An exercise of discretion or

an important policy consideration that the Environmental Appeals Board should, in its discretion,

review." 40 C.F.R. § 124.19(a)(4)(i); In re Dominion Energy Brayton Point, LLC, 12 E.A.D.

490, 509 (EAB 2006). In support of his argument, Mr. Bormuth mistakenly relies on a Board

decision discussing the burden of proof EPA faces in an administrative penalty proceeding before

an administrative law judge. Motion for Reconsideration at 3 (citing In re Bullen Cos., 9 E.A.D.

620, 632 (EAB 2001)).

     Second, Mr. Bormuth claims that the Board "must exercise its discretion to review an

important policy matter, i.e. whether [seventeen wells permitted at similar strata in the lower

Michigan basin] constitute a danger to our Michigan aquifers." Id. Rather than identifying a

clear error, this argument invites the Board to take action beyond its jurisdiction. The Board may

only exercise such authority as is expressly delegated to it, 40 C.F.R. § 1.25(e)(2), and, as regards

permit appeals, it is only authorized to hear appeals from specific permit decisions. 40 C.F.R.

§ 124.19(a)(1). Therefore, the Board's authority in this matter is limited to review of the specific

permit challenged in Mr. Bormuth's petition.

   Third, Mr. Bormuth claims that the Board has shown "bias and a deliberate intent to

avoid the Petitioner's full argument." Motion for Reconsideration at 6. As evidence of bias,

Mr. Bormuth cites the Board's handling of petitions by Sandra K. Yerman in this proceeding as

well as in a prior proceeding involving Mr. Bormuth. Mr. Bormuth claims that the Board

showed favoritism by accepting Ms. Yerman's allegedly late-filed petitions and rejecting as

untimely the majority of the scientific studies he filed with the Board. Id. These allegations lack

merit. The Board's rulings on the timeliness of Ms. Yerman's petitions and Mr. Bormuth's

filing of scientific studies followed EPA regulations and well-established Board precedent. 2

Moreover, in both proceedings, the Board disposed of Ms. Yerman's and Mr. Bormuth's

petitions in a nearly identical manner. In the prior proceeding, both of their petitions were

dismissed as moot. 3 In this proceeding, both petitions were denied. 4 Once again, Mr. Bormuth

has not identified a demonstrable error.

   Fourth, Mr. Bormuth argues that the Board erred in not considering various scientific

articles attached to his petition because, Mr. Bormuth contends, the articles were submitted in

response to material newly added to the record by the Region in responding to public comments

on the draft permit. Motion to Supplement at 1. This claim does not support reconsideration of

the Board's decision because it simply reargues an issue, whether the Board should consider the

articles attached to the petition, already briefed by the parties. More problematically,

Mr. Bormuth's current argument for why these articles should be considered could have been

presented in his reply brief but was not. See Petitioner's Reply to EPA Response to Petition for

Review UIC 14-66, at 1-2 (arguing only that the Board should consider the late-filed articles

because they had been offered to the Region).

   In any event, Mr. Bormuth's new argument has no merit. Although Mr. Bormuth lists

eighteen separate articles or documents, 5 he only attempts to tie three of these articles to

statements in the Region's response to comments document. Id. at 3, 4. The first of these

articles, according to Mr. Bormuth, shows that anhydrite can be quickly converted to gypsum.

Id. at 3. But this is the core argument Mr. Bormuth submitted to the Region during the comment

period. If he had documentary evidence to support this argument, he should have submitted it at

that time. Second, Mr. Bormuth cites to two articles that he claims demonstrate that there is

cross-formational flow of fluids in the Coldwater Shale. Id. at 4, 5. However, Mr. Bormuth was

well aware that the Region relied on the Coldwater Shale, among other geological strata, as a

confining layer. If Mr. Bormuth had documentary evidence disputing the permeability of the

Coldwater Shale, he should have included it with his other comments on the Coldwater Shale

that he submitted during the public comment period.

    5
   The articles are dated between 1958 and January 10, 2013, and thus were available to

Mr. Bormuth prior to the public comment period on the draft Permit which began on March 27,
2013. U.S. EPA Region 5, Response to Public Comments at 50 (Apr. 9, 2014) (A.R. 68).

    Finally, Mr. Bormuth argues that a permit the Region issued on June 14, 2006, shows the

Region erred in issuing the West Bay permit. Id. at 5-6. Mr. Bormuth claims that he just

received a copy of this permit pursuant to a Freedom of Information Act request. But

Mr. Bormuth provides no justification for why he could not have submitted this 2006 permit

during the public comment period on the West Bay permit. Moreover, Mr. Bormuth relies on the

2006 permit to make new arguments (the Region committed "willful and wanton misconduct"

and the Region has understated the fracturing the well will cause), and to support an argument

made for the first time in his reply brief (the injected brine will dissolve salt layers). Id. It is far

too late in this appeal to submit a new document or to raise new arguments or an argument

previously dismissed as untimely. 6 Reconsideration is not appropriate based on such claims.

    6
       See West Bay IV at 11 n.8 (dismissing Mr. Bormuth's argument concerning salt layers

for failing to raise it prior to the filing of his reply brief).

     Accordingly, because Mr. Bormuth has not identified any demonstrable error in the

Board's decision on his petition, the Board denies his motion for reconsideration.

     So ordered.

Dated: October 21, 2014 ENVIRONMENTAL APPEALS BOARD 7

                                         By: [signature]
                                                 Catherine R. McCabe
                                                 Environmental Appeals Judge

     7
    The three-member panel deciding this matter is composed of Leslye M. Fraser,

Catherine R. McCabe, and Kathie A. Stein.

                          CERTIFICATE OF SERVICE

    I hereby certify that copies of the foregoing Order Denying Reconsideration in the

matter of West Bay Exploration Co., UIC Appeal No. 14-66 were sent to the following persons
in the manner indicated:

By U.S. First Class Mail:

Timothy Brock
West Bay Exploration Company
13685 South West Bay Shore Dr.
Suite #200
Traverse City, MI 49684

Peter Bormuth
142 W. Pearl St.
Jackson, MI 49201

By Pouch Mail:

John P. Steketee
Associate Regional Counsel
U.S. EPA, Region 5 (C-14J)
77 W. Jackson Blvd.
Chicago, IL 60604

Dated: OCT 21 2014

                                               Annette Duncan
                                                Secretary