ORDERS:
ORDER ON MOTION FOR RECONSIDERATION
This matter is before me pursuant to the Respondent's Motion for Reconsideration of my
Order of September 5, 1996, which held that the federal facilities section of the Clean Air Act
(CAA), 42 U.S.C. 7418 (1994), does not waive the United States' sovereign immunity from
punitive civil fines levied by state agencies for past environmental violations by a federal
government installation. After careful consideration and review of the Respondent's Motion for
Reconsideration, I find that there are no grounds for granting the motion. Respondent's
argument that the federal facilities section of the CAA constitutes a waiver of sovereign
immunity fails to provide any new information sufficient to justify reconsideration of my original
order. In Bennett v. City of Clemson, 293 S.C. 64, 358 S.E.2d 707 (1987), the South Carolina
Supreme Court stated that "a motion for reconsideration should only be granted when there is
good cause, such as newly discovered evidence, fraud, surprise, mistake, inadvertence, or change
in conditions." Respondent's motion merely reiterates the arguments of the original brief
without any additional information that might constitute "good cause" for reconsideration.
Respondent's Motion for Reconsideration also presents a new argument suggesting that
the CAA's citizen suit provision, 42 U.S.C. 7604 (1994), constitutes a waiver of sovereign
immunity for punitive fines assessed by the state for past environmental violations by a federal
facility. This argument was not raised in the Respondent's original brief, nor was it mentioned in
the Respondent's Prehearing statement. Rather, Respondent's argument was based on the federal
facilities provision, with specific citation thereto in its brief and prehearing statement.
Therefore, the argument related to the citizen suit provision is not properly before me on a
motion for reconsideration. See Anderson Memorial Hospital, Inc. v. Hagen, 313 S.C. 497, 443
S.E.2d 399 (Ct. App. 1994) ("a party cannot use a motion to reconsider to present an issue he
could have raised prior to judgment, but did not"). The Respondent had a full and fair
opportunity to raise the issue of the CAA's citizen suit provision prior to judgment and failed to
do so, making reconsideration of the case by this tribunal improper as a matter of law.
Furthermore, the granting of a rehearing is not a matter of right, but is a question addressed to the
discretion of the administrative officer or agency. 73A C.J.S. Public Administrative Law and
Procedure 161 (1983). All other issues raised by the Respondent's Motion for Reconsideration
were adequately addressed in my original Order.
For all the foregoing reasons, the Respondent's Motion for Reconsideration is DENIED.
AND IT IS SO ORDERED.
______________________________
John D. Geathers
Administrative Law Judge
October__, 1996
Columbia, S.C. |
