Petition for Writ of Certiorari — City of Taunton, Massachusetts, Petitioner v. Environmental Protection Agency

App. 1

United States Court of Appeals

For the First Circuit

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No. 16-2280

CITY OF TAUNTON, MASSACHUSETTS,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

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PETITION FOR REVIEW OF AGENCY ACTION

OF THE UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

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Before

Torruella, Lipez, and Thompson,

Circuit Judges.

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John C. Hall, with whom Philip D. Rosenman and

Hall & Associates were on brief, for petitioner.

Sarah A. Buckley, Trial Attorney, United States

Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, with

whom Jeffrey H. Wood, Acting Assistant Attorney General, Environment and Natural Resources Division,

David J. Kaplan, Trial Attorney, and Samir Bukhari,

App. 2

Of Counsel, United States Environmental Protection

Agency, Region 1, were on brief, for respondent.

Michael Rubin, Assistant Attorney General,

Rhode Island Attorney General’s Office, with whom Peter F. Kilmartin, Attorney General, State of Rhode Island, on brief as amicus curiae.

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(July 9, 2018)

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TORRUELLA, Circuit Judge. The City of Taunton, Massachusetts (the “City”), objects to the decision

of the Environmental Protection Agency (EPA) to impose a limit – through a National Pollutant Discharge

Elimination System (NPDES) permit – on the amount

of nitrogen that the Taunton Wastewater Treatment

Plant (the “Facility”) may discharge. After considering

all of the City’s challenges, both procedural and substantive in nature, we uphold the EPA’s permitting decision.

I.

A.

It is useful to begin with an overview of the legal

landscape that is relevant to this appeal. The Clean

Water Act (CWA) prohibits the “discharge of any pollutant” unless that discharge complies with NPDES permit requirements. 33 U.S.C. §§ 1311(a), 1342. The EPA

is responsible for issuing NPDES permits unless a

App. 3

state agency is authorized to do so. Id. § 1342(a)-(c). No

Massachusetts agency is so authorized. Under the

CWA, NPDES permits must include any waterquality-based limitations that are necessary to ensure

compliance with the water quality standards of the

state where the pollutant discharge in question is to

occur, as well as those of any affected downstream

states. See Id. §§ 1311(b)(1)(C), 1341(a)(2); 40 C.F.R.

§§ 122.4(d), 122.44(d)(4). Giving effect to this requirement, EPA regulations provide that NPDES permits

“must control all pollutants” that the EPA “determines

are or may be discharged at a level which will cause,

have the reasonable potential to cause, or contribute to

an excursion above any State water quality standard.”

40 C.F.R. § 122.44(d)(1)(i); see also Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992) (explaining how this

framework incorporates state water quality standards

into “the federal law of water pollution control”).

NPDES permits issue for a period of time not to

exceed five years. 33 U.S.C. §§ 1342(a)(3), (b)(1)(B); 40

C.F.R. § 122.46(a). Upon receiving a permit renewal

application, the permitting authority – the EPA, in this

case – prepares a draft permit setting out the proposed

“effluent limitations, standards, prohibitions . . . and

[other] conditions.”1 40 C.F.R. § 124.6(d)(1), (d)(4)(v). So

1

The noun “effluent” is defined as “the outflow of a sewer,

septic tank, etc.” Webster’s New World Dictionary & Thesaurus

195 (1996); see also 33 U.S.C. § 1362(11) (“The term ‘effluent limitation’ means any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical,

physical, biological, and other constituents which are discharged

App. 4

too must the EPA issue a “fact sheet” that “briefly

set[s] forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit.” Id. § 124.8(a). The

public comment period opens when the EPA publishes

a public notice of the draft permit. After reviewing the

comments submitted during that period, the EPA issues a final permit decision along with a formal “response to comments.” Id. §§ 124.15, 124.17(a). “Any

person who filed comments on the draft permit or participated in a public hearing on the draft permit may

file a petition for review” of the permit with the Environmental Appeals Board (EAB). Id. § 124.19(a)(2).

B.

We also find it useful to provide a brief overview of

the facts and procedural events that are central to this

appeal, though we will also discuss those in greater detail in assessing the City’s various challenges.

This appeal revolves around the NPDES permit

that the EPA issued for the Facility in 2015. The City

owns the Facility, which also treats wastewater from

the towns of Raynham and Dighton. The Facility discharges into the estuarine portion of the Taunton

River, which, in turn, flows into Mount Hope Bay. Located partially in Rhode Island and partially in Massachusetts, Mount Hope Bay is part of the larger

Narragansett Bay. The Facility is the second-largest

from point sources into navigable waters, the waters of the contiguous zone, or the ocean. . . .”).

App. 5

point-source contributor of nitrogen to the Taunton

River watershed.2 Nitrogen pollution stimulates excessive plant growth in bodies of water, which can deprive

waters of the oxygen necessary to sustain other organisms – a process called “eutrophication.” See Upper

Blackstone Water Pollution Abatement Dist. v. EPA, 690

F.3d 9, 11-12 (1st Cir. 2012) (describing eutrophication

in greater detail).

In 2005, the City applied to renew its soon-toexpire 2001-issued NPDES permit. The 2001 permit

did not limit the Facility’s discharge of nitrogen, but it

did require nitrogen monitoring. The EPA issued a

draft permit in 2007, but its review of the ensuing public comments led it to conclude that it might be necessary for the permit to impose nutrient limits. After

further research, the EPA issued a superseding draft

permit, along with the mandatory accompanying fact

sheet, in 2013.3 That draft permit sought to limit the

Facility’s nitrogen discharges to an average of 210 lbs.

per day. As the fact sheet explained, the EPA found

that limitation necessary after determining that the

2

“The term ‘point source’ means any discernible, confined

and discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure, container,

rolling stock, concentrated animal feeding operation, or vessel or

other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). However, “[t]his term does not include agricultural stormwater discharges and return flows from

irrigated agriculture.” Id.

3

While the 2001-issued NPDES permit for the Facility expired in 2006, it was administratively continued pursuant to 40

C.F.R. § 122.6.

App. 6

Taunton River and Mount Hope Bay “are suffering

from the adverse water quality impacts of nutrient

overenrichment, including cultural eutrophication,”

and concluding that the City’s nitrogen discharges had

the “reasonable potential” to cause or contribute to

that overenrichment. See 40 C.F.R. § 122.44(d)(1).

At the City’s request, the EPA extended the public

comment period to 90 days, during which time the City

submitted a substantial volume of comments objecting

to the nitrogen limit that the draft permit sought to

impose on the Facility. After the extended public comment period closed, the City sought on multiple occasions to submit what it characterized as “supplemental

comments.” The EPA, however, rejected these as untimely, and therefore declined to address them in its

response to comments.

After the final permit issued, the City appealed to

the EAB, challenging both the need for any nitrogen

limit and the specific limit that the permit imposed.

The City also filed two motions before the EAB to supplement the record with, among other things, the documents it had previously attempted to submit with its

“supplemental comments.” The EAB denied those motions. The EAB also denied the City’s administrative

appeal on the merits, along with the City’s subsequent

motion for reconsideration. The final permit went into

effect on June 22, 2016.4

4

The permit did not require the City to give immediate effect

to its nitrogen limit, but rather set out a 10-year staged compliance schedule for the City to follow.

App. 7

The City then appealed to us, challenging this final agency action, see 33 U.S.C. § 1369(b)(1)(F), on various procedural and substantive grounds. After the

parties filed their appellate briefs, the EPA moved to

strike certain portions of the City’s reply brief and supplemental appendix because they involved documents

from outside of the agency record.5 In response, the

City moved to supplement the record with the documents at issue. The City also filed a motion “For Leave

to Adduce New Material Evidence and Compel Respondent’s Review of the New Information.” We now

resolve these motions and the merits of the City’s appeal.

II.

The Administrative Procedure Act (APA) governs

our review of the EPA’s actions and decisions amid the

NDPES permitting process. See City of Pittsfield v.

EPA, 614 F.3d 7, 10 (1st Cir. 2010). Accordingly, we may

only overturn what the EPA has done if we find that it

was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). More concretely, we are to leave agency action undisturbed unless

the agency has relied on factors which Congress has not intended it to consider, entirely

failed to consider an important aspect of the

5

We denied the State of Rhode Island’s motion to intervene

on behalf of the EPA, but highlighted that it was free to “present

its position in an amicus curiae brief,” which it then did.

App. 8

problem, offered an explanation for its decision that runs counter to the evidence before

the agency, or is so implausible that it could

not be ascribed to a difference in view or the

product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “This deference goes to the entire agency action, which here includes both the EPA’s permitting decision and the

EAB’s review and affirmance of that decision.” Upper

Blackstone, 690 F.3d at 20.

Here, the “scientific and technical nature of the

EPA’s decisionmaking” increases our level of deference. Id. (citing Balt. Gas & Elec. Co. v. Nat. Res. Def.

Council, Inc., 462 U.S. 87, 103 (1983) (explaining that

when an agency is acting “within its area of special expertise, at the frontiers of science. . . . as opposed to

[making] simple findings of fact, a reviewing court

must generally be at its most deferential”)). We are

particularly mindful that “where a complex administrative statute, like those the EPA is charged with administering, requires an agency to set a numerical

standard, courts will not overturn the agency’s choice

of a precise figure where it falls within a ‘zone of reasonableness.’ ” Upper Blackstone, 690 F.3d at 28.

Similarly, because interpreting and implementing

the CWA falls squarely within the EPA’s bailiwick, see

Adams v. EPA, 38 F.3d 43, 49 (1st Cir. 1994), we defer

to its “reasonable interpretation” of that statute, Upper

Blackstone, 690 F.3d at 21. See also Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843

App. 9

(1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is

whether the agency’s answer is based on a permissible

construction of the statute.”). Finally, the EPA enjoys

greater deference still when interpreting its own regulations. Upper Blackstone, 690 F.3d at 21. Its interpretation of those regulations shall be “controlling unless

‘plainly erroneous or inconsistent with the regulation.’ ” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 359 (1989)).

A.

1.

After briefing before this court concluded, the EPA

moved to strike certain documents in the City’s supplemental appendix, in addition to parts of the City’s

reply brief that cited those documents, as outside of the

administrative record. These documents comprised: (1)

a 2005 Rhode Island nutrient policy document; (2)

slides prepared by the Narragansett Bay Commission;

and (3) a draft report from the Narragansett Bay Estuary Program (the “draft NBEP report”). In response,

the City cross-moved to supplement the record. The

City argued that it was entitled to refer to the documents at issue in rebutting arguments that the State

of Rhode Island had raised in its amicus brief. Specifically, the City pointed to Rhode Island’s contentions

that: (1) “The fact that [the Rhode Island Department

of Environmental Management’s] nitrogen limitations

App. 10

for numerous in-state sewage treatment plants are numerically consistent with the nitrogen limitation at issue further corroborates the reasonableness of the

EPA’s decision”; (2) the nitrogen limit that the EPA imposed in the Permit is necessary to ensure compliance

with Rhode Island’s water quality standards; and (3)

that research by the Narragansett Bay Estuary Program and the University of Rhode Island Coastal Institute bolster the EPA’s decision.

At the foreground of our analysis here is the principle that, when reviewing an agency’s decision under

the arbitrary and capricious standard, “the focal point

for judicial review should be the administrative record

already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S.

138, 142 (1973); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“[I]f the reviewing court

simply cannot evaluate the challenged agency action

on the basis of the record before it, the proper course,

except in rare circumstances, is to remand to the

agency for additional investigation or explanation.”);

Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788,

792 (D.C. Cir. 1984) (“To review more than the information before the Secretary at the time she made her

decision risks our requiring administrators to be prescient or allowing them to take advantage of post hoc

rationalizations.” (citing Am. Petrol. Inst. v. Costle, 609

F.2d 20, 23 (D.C. Cir. 1979))).

Yet, exceptions do exist. We have recognized a pair

of situations in which we have the discretion to supplement the agency record. Town of Winthrop v. FAA, 535

App. 11

F.3d 1, 14 (1st Cir. 2008). First, we may consider supplemental evidence to facilitate our comprehension of

the record or the agency’s decision. Id. Examples of this

include agency decisions involving “highly technical,

environmental matters,” Valley Citizens for a Safe

Env’t v. Aldridge, 886 F.2d 458, 460 (1st Cir. 1989)

(Breyer, J.), or when we are faced with a “failure to explain administrative action as to frustrate effective judicial review,” Olsen v. United States, 414 F.3d 144,

155-56 (1st Cir. 2005) (quoting Camp, 411 U.S. at 14243). Second, a “strong showing of bad faith or improper

behavior” may also provide occasion to “order[ ] the

supplementation of the administrative record.” Town

of Norfolk v. U.S. Army Corps of Eng’rs, 968 F.2d 1438,

1458-59 (1st Cir. 1992) (citing Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)).

We note that the City’s proffered justification for

supplementing the record – to allow it to respond to

arguments raised in an amicus brief – does not fit

neatly within either of these exceptions.6 Without

6

The City also insists that this is a situation when supplementing the record is appropriate because “the good faith of the

agency is at issue.” The City appears to argue that the EPA

shirked its “duty” to “bring forth” the information contained in the

draft NBEP report – which the City says undercuts the EPA’s conclusions regarding the permit – and that we can infer bad faith

from this. But, the draft NBEP report is dated April 2017, which

is ten months after the final permit went into effect, following the

City’s unsuccessful administrative appeal. Setting aside the question of whether the draft NBEP report (or its subsequently published final iteration) actually supports the City’s position – which

the EPA sharply contests – we fail to see how the EPA’s failure to

App. 12

passing judgment on whether that is a categorically inadequate reason to supplement the agency record, we

find that the City has failed to convince us here that

we should exercise our discretion in this manner.

Keeping in mind that our broader adjudicatory

task here is to determine whether, on the basis of the

record before it, the EPA acted arbitrarily or capriciously, we take note of the City’s position that Rhode

Island’s “assertions were not the basis of [the] EPA’s

permit limit calculations,” and that Rhode Island’s scientific and factual averments “were not part of the underlying agency[ ] decision.” It would follow, then, that

Rhode Island’s assertions also cannot provide a basis

for our affirmance of the EPA’s permit decision. So, we

do not find it appropriate or necessary to allow the City

to go beyond the agency record to rebut those assertions.7

engage with a document that didn’t exist at the time of its permit

decision can amount to indicia of bad faith.

7

To the extent that the City seeks to cite these documents

not to rebut Rhode Island’s arguments but rather to attack the

merits of the EPA’s permit decision (a motive at which its reply

brief hints), we emphasize that the proper moment for the City to

adduce evidence to that effect was the public comment period. See

Cousins v. Sec’y of U.S. Dep’t of Transp., 880 F.2d 603, 610 (1st Cir.

1989) (reasoning that parties are not prejudiced by the principle

that our review is limited to the agency record because they are

free to contribute to that record amid proceedings before the

agency). Further, to the extent that the City argues that the draft

NBEP report – which, again, post-dates the permit decision –

should come into the record as evidence that the EPA’s permit

decision was arbitrary and capricious, we also disagree. We repeat

that our review is of the agency’s decision based on the record

App. 13

Because the City has not convinced us that the

record should include the documents at issue in the

EPA’s motion to strike and the City’s cross-motion to

supplement the record, we grant the former and deny

the latter.

2.

Before oral argument, the City also brought a motion “For Leave to Adduce New Material Evidence and

Compel Respondent’s Review of the New Information.”

The City anchored that motion in section 509(c) of the

CWA, see 33 U.S.C. § 1369(c), which, the City claims,

gives us the authority to compel the EPA “to review

material evidence that arises after the challenged EPA

action.”

But we do not agree. Section 509(c)’s own terms

limit its application to agency “determination[s] . . . required to be made on the record after notice and opportunity for hearing.” Id. (emphasis added). That is

crucial because the phrase “on the record” serves to invoke formal agency adjudication under the APA. See 5

U.S.C. § 554(a); United States v. Allegheny-Ludlum

Steel Corp., 406 U.S. 742, 757 (1972) (explaining, in the

before it. Setting aside whatever merit the City’s arguments concerning the substance of that report may have, we recall one of

the reasons motivating our limited scope of review: “[T]he hope or

anticipation that better science will materialize is always present,

to some degree, in the context of science-based agency decisionmaking. Congress was aware of this when it nonetheless set

a firm deadline for issuing new permits.” Upper Blackstone, 690

F.3d at 23.

App. 14

context of agency rulemaking, that the APA’s provisions governing formal agency proceedings, see 5 U.S.C.

§§ 556-57, apply when “the agency statute, in addition

to providing a hearing, prescribes explicitly that it be

‘on the record’ ” (quotation omitted)). Thus, section

509(c) applies only to formal agency adjudications.

Congress has specified only that the EPA is to issue

NDPES permits “after opportunity for public hearing,”

without specifying whether that hearing must be “on

the record.” 33 U.S.C. §§ 1326(a), 1342(a). But, we have

afforded Chevron deference to EPA regulations setting

forth – in light of Congress’s silence on this issue – that

these public hearings need not be “on the record,” and

that the NDPES permit process is therefore an informal agency adjudication under the APA. Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 14-15,

18-19 (1st Cir. 2006).

This forecloses the City’s argument. Because the

agency record at issue here pertains to an informal adjudication, section 509(c) of the CWA is inapposite, and

does not provide a basis for us to order the EPA to reopen the administrative record to consider the City’s

purportedly new material evidence. As a result, we

deny the City’s motion for us do to so.

B.

We turn now to the various procedural challenges

that the City brings.

App. 15

1.

The City first tells us that the EPA “failed to provide public access to fundamental evaluations, analyses, and data used to derive the permit.” While the

City’s precise objections are perhaps not the easiest to

discern, we read its brief as essentially asserting two

things: (1) that the factsheet, containing only “generalized supporting information for the stringent nutrient

limitations,” failed to provide adequate support for the

draft permit’s nitrogen limitation, and (2) that “when

challenged regarding the adequacy of that documentation, [the EPA improperly] add[ed] thousands of pages

of site-specific studies, data analyses and specific regulatory findings [to the final administrative record], after the comment period closed.” The appropriate

remedy, according to the City, is for us to order the EPA

to reopen the public comment period so that the City

may weigh in on the “new justifications and analyses

supporting [the] permit” for which the EPA allegedly

deprived the City of a “rebuttal opportunity.”8

8

The City’s briefing broadly describes its various procedural

challenges in terms of due process violations or violations of its

procedural rights. However, we do not understand the City to be

raising a Fifth Amendment Due Process Clause claim. Rather, the

City’s contentions fall under the ambit of the APA. We thus apply

arbitrary and capricious review to the City’s procedural claims.

See United States v. Estate of Boothby, 16 F.3d 19, 21 (1st Cir.

1994) (“In scrutinizing administrative action, a reviewing court is

free to correct errors of law, but, otherwise, the court is limited to

a search for arbitrary or capricious behavior.”) (citing 5 U.S.C.

§ 706(2)(A)).

App. 16

We start with the City’s claim that the fact sheet

was facially deficient. Under 40 C.F.R. § 124.8(a), the

fact sheet that accompanies a draft NPDES permit

need only “briefly set forth the principal facts and the

significant factual, legal, methodological and policy

questions considered in preparing the draft permit.”

We find that, here, the fact sheet satisfied that requirement.

First, the fact sheet explained how the EPA had

arrived at its conclusion that the “Taunton River Estuary and Mount Hope Bay have reached their assimilative capacity for nitrogen,” and as a result, were

already “failing to attain the water quality standards”

that Massachusetts and Rhode Island law impose. The

fact sheet then explained the EPA’s conclusion that,

because the Facility’s nitrogen discharges had the “reasonable potential” to cause violations of the applicable

water-quality standards, it was necessary to include an

effluent limit in the draft permit. Next, the fact sheet

detailed how the EPA first calculated the threshold nitrogen concentration for the Taunton River Estuary –

that is, the maximum amount of nitrogen that the Estuary may contain before any water-quality violations

result – and then calculated an “allowable total nitrogen load from the watershed” that would keep the Estuary’s nitrogen concentration at or below that

threshold. Finally, the fact sheet laid out how the EPA

allocated that total allowable nitrogen load among the

Estuary’s various point-sources of nitrogen – including

the Facility – to derive limits for each of those nitrogen

dischargers. At each step, the EPA identified the

App. 17

datasets and studies it relied upon in making these

calculations, and provided a clear account of its reasoning and underlying assumptions.

In light of all of this, we do not agree with the City

that the fact sheet provided only “generalized supporting information for the stringent nutrient limitations.”

Quite the opposite, the fact sheet described in substantial detail the methodology that the EPA employed in

deriving the nitrogen limitation that it ultimately imposed in the draft permit. The City therefore fails to

convince us that the fact sheet ran afoul of the regulations governing it.9 Having resolved that, we now turn

to the City’s claim that the EPA improperly added documents to the final administrative record.

According to the City, a “quick comparison of the

original 20-page generalized fact sheet discussion versus the 80 pages of site-specific analysis contained in

the [response to comments] and final administrative

record confirms extensive revisions occurred.”10 The

9

In its reply brief, the City contends that the fact sheet was

inadequate for many of the same reasons for which it claims that

the final permit’s nitrogen limit was arbitrary and capricious (e.g.,

it failed to consider “the post-2006 system wide pollutant reductions affecting algal growth and [dissolved oxygen]”). In addition

to having been waived, see Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000) (“We have held, with a regularity bordering on the monotonous, that issues advanced for the

first time in an appellant’s reply brief are deemed waived.”), these

arguments, as we explain in addressing the City’s substantive

challenges, also lack merit.

10

To the extent that the City argues that the final permit

departed impermissibly in substance from the draft permit, we

recall that an agency “can make even substantial changes from

App. 18

City also protests that the fact sheet and its supporting

documentation suffered from “glaring record omissions,” and that it was only at the Final Permit stage

that the EPA “disclosed the new information, evaluations, data, and conclusions that purportedly justified

its action.”

The EPA’s rejoinder is that, as the EAB explained,

“it is both permissible and expected for [the EPA] to

place new material in the Administrative Record when

responding to significant comments.” The EPA also

correctly points out that its regulations provide that if

“new points are raised or new material supplied during

the public comment period, EPA may document its response to those matters by adding new materials to the

administrative record.” 40 C.F.R. § 124.17(b); see also

id. § 124.18(b)(4) (the administrative record for a final

permit must include “the response to comments required by § 124.17 and any new material placed in the

record under that section”). And it does not follow that,

because the EPA added new materials to the administrative record in response to comments it received, it

also needed to reopen the comment period. The

the proposed version [of a rule], as long as the final changes are

‘in character with the original scheme’ and ‘a logical outgrowth’ of

the notice and comment.” Nat. Res. Def. Council, Inc. v. EPA, 824

F.2d 1258, 1283 (1st Cir. 1987) (quoting S. Terminal Corp. v. EPA,

504 F.2d 646, 658 (1st Cir. 1974)); see also In Re Town of Concord

Dep’t of Pub. Works, 16 E.A.D. 514, 532-33 (EAB 2014) (upholding

the decision not to reopen public comment after rejecting the

Town of Concord’s argument that the pH limit imposed in a final

NPDES permit was not a “logical outgrowth” of the draft permit).

And the City offers nothing in support of any contention that the

final permit was not a “logical outgrowth” of the draft permit.

App. 19

relevant regulations provide that “[i]f any data[,] information[,] or arguments submitted during the public

comment period . . . appear to raise substantial new

questions concerning a permit, the [EPA] may . . . [r]eopen or extend the comment period.” 40 C.F.R.

§ 124.14(b) (emphasis added). In the end, the City fails

to convince us that the EPA wrongly declined to exercise its discretion to reopen the comment period after

adding new documents to the administrative record.

Contrary to what the City asserts, the 60-page difference between the fact sheet and the response to

comments does little to suggest that the EPA acted arbitrarily or capriciously. Because it needed only to

“briefly set forth” the draft permit’s factual and theoretical underpinnings, see 40 C.F.R. § 124.8(a), the fact

sheet’s comparative brevity cannot alone be indicative

of any illegitimate additions to the response to comments. We, therefore, do not agree with the City that

the EPA acted arbitrarily or capriciously in adding documents to the record after the public comment period.

Nor does the City give us any reason to conclude that

the EPA needed to reopen the public comment period

after adding those documents.

2.

The City next challenges the EPA’s decision not to

address the City’s untimely “supplemental comments”

in the response to comments. 40 C.F.R. § 124.17(a)(2)

requires only that the EPA “[b]riefly describe and respond to all significant comments on the draft permit

App. 20

. . . raised during the public comment period, or during

any hearing.” (emphases added); see also id. § 124.13

(“All persons . . . who believe any condition of a draft

permit is inappropriate . . . must raise all reasonably

ascertainable issues and submit all reasonably available arguments supporting their position by the close

of the public comment period.”). As we have explained

previously, we apply “strict rules of procedural default

in the administrative context” for a number of reasons:

First, when the administrative agency is

given an opportunity to address a party’s objections, it can apply its expertise, exercise its

informed discretion, and create a more finely

tuned record for judicial review. . . . A second

reason for applying strict rules of procedural

default in the administrative context is to promote judicial economy. . . . Finally, enforcing

procedural default solidifies the agency’s autonomy by allowing it the opportunity to monitor its own mistakes and by ensuring that

regulated parties do not simply turn to the

courts as a tribunal of first resort.

Adams, 38 F.3d at 50 (quoting Mass. Dep’t Pub. Welfare

v. Sec’y of Agric., 984 F.2d 514, 523 (1st Cir. 1993)). The

City does not proffer any good reason for us to deviate

from these principles here. And while the EPA was free

to reject the City’s untimely comments out of hand, it

nonetheless undertook to review them. Thus, the EPA

concluded in the response to comments that those untimely comments pertained in large part “to the subject matter of the City’s timely submitted comments,

which have been duly considered.” The EPA then

App. 21

added that “[g]iven the foregoing, and the fact that the

existing permit is long expired, the evidence of ongoing

water quality impairments, and the need . . . for timely

imposition of more stringent nutrient controls, EPA rejects the ‘supplemental comments’ as untimely.” It

therefore declined to respond to those comments. We

do not find this to have been arbitrary or capricious.

We similarly uphold the EAB’s decision to strike

documents that the City attempted to submit for the

first time at the administrative appeal stage. The City

protests that the EAB’s decision “effectively created a

double-standard whereby [the EPA] may include extensive new post-comment period analyses and data to

justify its action, yet the City is precluded from commenting on any of this new information.” But this assertion alone – especially given our rejection of the

notion that the EPA illicitly added information to the

final record or that the final permit departed impermissibly from the fact sheet and draft permit – fails to

convince us that the EAB acted arbitrarily or capriciously in policing its waiver rule. See 40 C.F.R.

§§ 124.13, 124.19 (requiring that permit appellants

raising new arguments “explain why such issues were

not required to be raised during the public comment

period”). We therefore conclude that the EAB properly

refused to consider these new documents.

3.

Finally, the City tells us that “following the issuance of its deficient fact sheet, EPA repeatedly stymied

App. 22

Taunton’s access to the Agency’s back-up documentation allegedly supporting the contested [total nitrogen]

limitation.” In brief, the City makes much ado over the

EPA’s purported unwillingness to allow the City to see

documents supporting the draft permit’s nitrogen

limit. The City’s briefing does not make entirely clear

what exactly it wanted the EPA to do. But in any event,

we note that the City does not argue that the EPA ran

afoul of any applicable legal requirement. And as the

EPA points out, it needed only to provide physical access to the record during the public comment period,

see 40 C.F.R. § 124.10(d)(1)(vi), which it did. As it turns

out, the EPA invited representatives of the City to visit

its Region One office in Boston to review the administrative record on multiple occasions. The City, meanwhile, expressly rejected that invitation. In sum,

because the City fails to show that it was procedurally

entitled to anything more than what the EPA afforded

it, we do not find the EPA’s actions in this respect to

have been arbitrary or capricious. See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435

U.S. 519, 524 (1978) (“Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to

impose them if the agencies have not chosen to grant

them.”).11

11

The City also submits that the “EPA’s recalcitrance was so

pronounced that it prompted a federal court to award attorneys’

fees against EPA under FOIA.” This is irrelevant, though. Whatever obligations the EPA may have had in connection with any

particular FOIA request have no bearing on the EPA’s compliance

with the framework governing the NPDES permit process.

App. 23

C.

We now take up the City’s substantive challenges

to the Permit and its nitrogen limit.

1.

The first arrow that the City pulls from its quiver

is that the EPA erred in determining that the Taunton

Estuary was nutrient impaired.

As we explained above, NPDES permits “must

control all pollutants or pollutant parameters” that the

EPA “determines are or may be discharged at a level

which will cause, have the reasonable potential to

cause, or contribute to an excursion above any State

water quality standard, including State narrative criteria for water quality.” 40 C.F.R. § 122.44(d)(1)(i). The

EPA has interpreted “reasonable potential” to mean

“some degree of certainty greater than a mere possibility.” In re Upper Blackstone Water Pollution Abatement

Dist., 14 E.A.D. 577, 599 n.29 (EAB 2010). “Narrative”

water quality criteria are qualitative, rather than numerical, in nature. See 40 C.F.R. §§ 131.3(b), 131.11(b).

Massachusetts classifies the Taunton Estuary and

the eastern portion of Mount Hope Bay as “Class SB”

waters. Per state regulations, Class SB waters “are

designated as a habitat for fish, other aquatic life and

wildlife . . . and for primary and secondary contact recreation.” 314 Mass. Code Regs. § 4.05(4)(b). They “shall

have consistently good aesthetic value.” Id. Class SB

waters must also meet the numeric water quality

App. 24

criterion of a minimum of 5.0 mg/l of dissolved oxygen.

Id. § 4.05(4)(b)(1). So too must they satisfy the following narrative water quality criterion:

Unless naturally occurring, all surface waters

shall be free from nutrients in concentrations

that would cause or contribute to impairment

of existing or designated uses. . . . Any existing point source discharge containing nutrients in concentrations that would cause or

contribute to cultural eutrophication . . . shall

be provided with the most appropriate treatment . . . to remove such nutrients to ensure

protection of existing and designated uses.

Id. §4.05(5)(c).

When issuing NDPES permits for states that employ narrative criteria, the EPA must translate those

criteria into a “calculated numeric water quality criterion” that the EPA “demonstrates will attain and

maintain applicable narrative water quality criteria

and will fully protect the designated use.” 40 C.F.R.

§ 122.44(d)(1)(vi)(A). The EPA may arrive at that numerical criterion by using “a proposed State criterion,

or an explicit State policy or regulation interpreting

[the State’s] narrative water quality criterion, supplemented with other relevant information. . . .” Id. Massachusetts has not prescribed specific methodologies

for deriving numeric nitrogen limitations that correspond to its narrative criteria. It therefore fell to the

EPA to do so here.

The EPA looked to an interim report prepared for

the Massachusetts Department of Environmental

App. 25

Protection (MassDEP) known as the “Critical Indicators Report.” See Massachusetts Estuaries Project,

Site-Specific Nitrogen Thresholds for Southeastern

Massachusetts Embayments: Critical Indicators, July

21, 2003, https://www.mass.gov/files/documents/2016/08/

mp/nitroest.pdf (last visited June 14, 2018). As the

EPA explained in the response to comments, “[w]hile

MassDEP has not adopted the Critical Indicators Report as a specific policy, it has afforded the document

technical and scientific weight, [and] has explicitly relied on the report” in other regulatory contexts.

The purpose of that report is to provide a “translator” between Massachusetts’s narrative water quality standard and corresponding numeric nitrogen

thresholds that would ensure compliance with those

standards. Id. at 2. To that end, the report listed various criteria, or “indicators,” to guide assessments of the

present health of a given body of water, including the

amount of oxygen, nitrogen, and chlorophyll present in

that body.12 Id. at 11. In this sense, those “indicators”

serve as factors to consider when assessing how

healthy a body of water is. The interim report also provided what it describes as “straw man” threshold levels

– to be “further refined with the collection of additional

data and modeling.” Id. at 3. For example, per those

thresholds, Class SB waters are not impaired when,

among other things, “oxygen levels are generally not

12

As the Critical Indicators Report explains, the amount of

chlorophyll in a given body of water provides a measure of the

concentration of aquatic plant life in that water, and therefore indicates the extent to which eutrophication has occurred. Id. at 14.

App. 26

less than 5.0 mg/l,” chlorophyll-a levels are between 35 μg/l, and nitrogen levels are between 0.39-0.50 mg/l.

Id. at 22. “Moderately impaired” SB waters have oxygen levels that “generally do not fall below” 4.0 mg/l,

chlorophyll levels that may reach 10 μg/l, and nitrogen

concentrations above roughly 0.5 mg/l.13 Id. at 23.

Class SB waters are “significantly impaired,” according to the report, at around 0.6-0.7 mg/l of nitrogen. Id.

The EPA then looked to data from a three-year water quality monitoring study that the School for Marine Sciences and Technology at University of

Massachusetts Dartmouth (SMAST) had carried out.

The study involved taking monthly water samples

from 22 sites across the Taunton Estuary and Mount

Hope Bay from 2004 to 2006. The study revealed that

all of these sites were suffering from excessive algae

growth; each site had an average chlorophyll-a concentration of over 10 μg/l during the study’s three-year period. All 22 monitoring stations also had an average

dissolved oxygen concentration below 5.0 mg/l during

that period. And in the case of 16 monitoring stations,

the average nitrogen concentration exceeded .5 mg/l –

where the Critical Indicators Report drew the line for

“clearly impaired” waters. Those monitoring stations

located in the Taunton River tended to have the highest nitrogen concentrations. The monitoring station

13

The case studies giving rise to these figures indicated, according to the report, that regions with nitrogen concentrations

above 0.5 mg/l were “clearly impaired,” while certain locations began showing signs of impairment once nitrogen exceeded 0.4 mg/l.

Id. at 23.

App. 27

closest to the Facility’s discharge point showed a particularly high nitrogen concentration – ranging from

0.66 to 0.99 mg/l during the course of the study.

The EPA also considered data from another monitoring station in Mount Hope Bay, operated by the Narragansett Bay Water Quality Network. That data

showed that the dissolved oxygen concentration at that

site fell below 4.8 mg/l on multiple occasions in 2005

and 2006. On two such occasions, the dissolved oxygen

concentration remained below 2.9 mg/l for two days,

resulting in “hypoxic conditions,” or “levels of dissolved

oxygen below what is needed by aquatic organisms to

breathe,” Upper Blackstone, 690 F.3d at 12. The data

also showed “multiple events” of chlorophyll-a concentrations exceeding 20 μg/l. Moreover, the data from the

monitoring station indicated that the site continued to

suffer from elevated chlorophyll-a concentrations and

persistent dissolved oxygen concentrations below 5

mg/l in 2010.

The EPA then applied the SMAST and Mount

Hope Bay data to the Critical Indicators Report. This

led it to conclude that “cultural eutrophication due to

nitrogen overenrichment in the Taunton River Estuary

and Mount Hope Bay has reached the level of a violation of both Massachusetts and Rhode Island water

quality standards for nutrients and aesthetics, and has

also resulted in violations of the numeric [dissolved oxygen] standards.” According to the City, this conclusion

was the product of various errors.

App. 28

The City first assails the EPA’s use of the Critical

Indicators Report, stressing that the EPA treated the

report’s “straw man” threshold levels as final and authoritative when the report treated them as preliminary and requiring further analysis. The EPA responds

that, while the report may hold those threshold levels

out as preliminary and subject to future fine-tuning,

the report’s “indicators” of watershed health are not.

Indeed, as the report explains, those indicators “form

the basis of an assessment of a system’s present

health.” Massachusetts Estuaries Project, supra at 22.

Thus, the EPA explains that it was entitled to use

those indicators and apply them “to site-specific data

and the extensive scientific literature on cultural eutrophication, to determine that the Taunton Estuary

was suffering from nutrient overenrichment.”

The EAB, for its part, upheld the EPA’s use of the

report on this basis, explaining that “the use of criteria

from the . . . Critical Indicators Report to evaluate water quality is fully consistent with the NPDES permitting regulations.” It added that the EPA’s ultimate

determination, after considering those indicators, that

the Taunton Estuary was nutrient impaired found further support in “the SMAST report itself, which concluded that the Taunton Estuary experienced very

high levels of nitrogen and poor water quality due to

high algal levels and oxygen depletion.”

We agree that the EPA did not use the Critical Indicators Report improperly. The City’s objections to the

EPA’s reliance on the “straw man” thresholds in the

Critical Indicators Report are ultimately inapposite, as

App. 29

the EPA relied not on those thresholds, but rather on

the Report’s indicators in reaching its conclusion about

nutrient impairment. Of course, had the EPA been able

to rely on threshold levels not subject to future refinement, then its analysis may have benefitted from

greater scientific certainty. But, it was not required to

delay its decision until such information became available, and its conclusions are not invalid because they

are the product of employing the indicators set out in

the Critical Indicators Report to analyze the SMAST

data. “As in many science-based policymaking contexts, under the CWA the EPA is required to exercise

its judgment even in the face of some scientific uncertainty.” Upper Blackstone, 690 F.3d at 23. Using those

indicators to determine that the Taunton Estuary was

nutrient impaired for purposes of Massachusetts’s narrative criteria, see 314 Mass. Code Regs. § 4.05(4)(b),

comported with the regulations that govern translating narrative criteria in the absence of an official statesanctioned methodology, see 40 C.F.R. § 122.44(d)(1)(vi)(A),

and was not arbitrary or capricious.14

14

We encounter further evidence that the EPA did more than

simply uncritically apply those thresholds to the SMAST data in

the EPA’s calculation of an acceptable total nitrogen threshold for

the Taunton River Estuary. Though the Critical Indicators Report

provides the “straw man” nitrogen concentration threshold of

0.39-0.50 mg/l for unimpaired waters, the EPA – finding dissolved

oxygen violations and elevated chlorophyll-a concentrations taking place at nitrogen concentrations above 0.45 mg/l – found that

threshold insufficiently protective and therefore, as we explain in

greater detail ahead, ultimately determined that a nitrogen

threshold of 0.45 mg/l was necessary to prevent water quality

standard violations.

App. 30

Next, the City protests that, in applying the

SMAST data to the Critical Indicators Report, the EPA

“did not undertake any analysis to demonstrate the relationship between nitrogen and dissolved oxygen or

plant growth” in the Taunton Estuary. As a result, the

City says, the EPA failed to rule out a number of other

explanations for the Taunton Estuary’s low concentration of dissolved oxygen and high concentration of chlorophyll. The City then points to a number of charts

drawing from the SMAST data that it submitted during the public comment period, which, it explains, show

that no relationship exists between the concentrations

of nitrogen and oxygen or between the concentrations

of nitrogen and chlorophyll. The absence of any causal

relationship, the City presses, renders the EPA’s determination that the Taunton Estuary was nutrient impaired arbitrary and capricious.

But, as the EAB correctly determined, the EPA did

not need to show causation – for example, through a

statistical regression analysis – to support its conclusion that the Taunton Estuary was nutrient impaired.

Rather, the EPA needed only to conclude that the further discharge of nitrogen had the “reasonable potential to cause, or contribute to an excursion above any

State water standard.” 40 C.F.R. § 122.44(d)(1)(i) (emphasis added); see also 314 Mass. Code Regs.

§ 4.05(4)(b)(1) (establishing the numeric criterion that

Class SB waters have a minimum of 5.0 mg/l of dissolved oxygen), (5)(c) (establishing the narrative criterion for Class SB waters that “[u]nless naturally

occurring, all surface waters shall be free from

App. 31

nutrients in concentrations that would cause or contribute to impairment of existing or designated uses”).

We further note that the words “contribute to” also indicate that nitrogen need not be the sole cause of any

potential violation of a state standard, further undercutting the suggestion that the EPA needed to prove

causation. Moreover, in upholding the “reasonable potential” determination here, the EAB observed that under the NPDES regulations, the permitting authority

has a “significant amount of flexibility in determining

whether a particular discharge has a reasonable potential to cause an excursion above a water quality criterion.” See also National Pollutant Discharge

Elimination System, 54 Fed. Reg. 23,868, 23,873 (June

2, 1989).

The City’s arguments thus miss their mark; it is

incorrect that the EPA needed to show a causal relationship between high concentrations of nitrogen and

low concentrations of dissolved oxygen. The absence of

an analysis of this sort from the EPA’s “reasonable potential” determination, therefore, cannot have made

that determination arbitrary or capricious.

And we also reject, as did the EAB, the City’s related contention that this “reasonable potential” determination was erroneous because the SMAST data does

not show any relationship between nitrogen, chlorophyll, and dissolved oxygen. In discussing the charts

that the City continues to rely on in arguing that no

such relationship exists, the EAB first highlighted the

explanation in the response to comments that “the

SMAST data were not appropriate for the type of

App. 32

analysis (a stressor-response analysis) performed by

the [C]ity, and that the SMAST data were generally insufficient to produce any statistically significant correlations.” The EAB also credited the EPA’s additional

observation in the response to comments that the

City’s selection of certain data to include in these

charts “would be expected to produce the results the

City sought.” And finally, while reemphasizing that the

EPA’s “reasonable potential” determination did not

rely on a stressor-response analysis of the SMAST

data, the EAB underscored that the EPA’s own analysis of that data “supported the conclusion that higher

algal levels result in lower levels of dissolved oxygen.”

Having considered, and found unpersuasive, the

City’s various challenges, we hold that the EPA did not

act arbitrarily or capriciously in determining that the

Taunton Estuary and Mount Hope Bay were already

nutrient impaired, such that further nitrogen discharges would have at least a “reasonable potential” to

give rise to violations of state water quality standards.

2.

The City’s next objection concerns the EPA’s methodology for determining a target nitrogen concentration that would ensure unimpaired conditions.

The EPA, we recall, needed to include in the permit whatever water-quality-based limitations it found

necessary to prevent violations of state water quality

standards. See 33 U.S.C. §§ 1311(b)(1)(C), 1341(a)(2);

40 C.F.R. §§ 122.4(d), 122.44(d)(4). Thus, having

App. 33

determined that “cultural eutrophication due to nitrogen overenrichment in the Taunton River Estuary and

Mount Hope Bay” was already resulting in violations

of the relevant Massachusetts and Rhode Island standards, the EPA then needed to determine the amount of

nitrogen that those waters could permissibly contain

without giving rise to any violations.

To calculate that total nitrogen threshold, the EPA

– employing what is known as a “reference-based” approach – looked to one of the monitoring stations in the

SMAST study, MHB16, that “consistently met dissolved oxygen standards.” As the EPA detailed in the

response to comments, MHB16 was, among all of the

unimpaired sites in the SMAST study, the site with the

highest nitrogen concentration. The nitrogen concentration at MHB16, 0.45 mg/l, also fell within the range

that the Critical Indicators Report held out as consistent with unimpaired conditions (0.35-0.5 mg/l). The

EPA further explained in the fact sheet that this nitrogen threshold was consistent with “total nitrogen concentrations previously found to be protective of

[acceptable dissolved oxygen levels] in other southeastern Massachusetts estuaries [which] have ranged

between 0.35 and 0.55 mg/l.” Mindful that all of the

sites in the SMAST study with a nitrogen concentration above 0.45 mg/l suffered from nutrient impairment, the EPA explained in the response to comments

that “there is simply no evidence that a higher target

[total nitrogen] concentration would be sufficiently

protective in the Taunton River Estuary.” The EPA

therefore selected 0.45 mg/l as the target nitrogen

App. 34

concentration that would serve as the basis for the effluent limitations the permit would impose on the Facility.

The City protests that the EPA’s reliance on

MHB16 was “flawed,” because MHB16 “could not be

more dissimilar” from the Taunton Estuary. In support

of this, the City points to comments it submitted in response to the draft permit and fact sheet averring that,

among other things, MHB16 is “located in a bay not a

tidal river, 23 feet deeper than [the Taunton Estuary],

subject to dramatically different hydrodynamics because

it is located in a high velocity tidal strait, and subject to different organic loadings and sediment oxygen

demands.” According to the City, the “irrationality of

using MHB16 is further underscored by the fact that

the average chlorophyll-a concentrations at MHB16

(10.5 μg/L) were (1) essentially identical to the upper

[Taunton Estuary], and (2) well above the suggested

‘good health’ ‘thresholds’ EPA claimed were necessary

to ensure standards compliance.”

In the response to comments, however, the EPA explained that the City had “clearly overstate[d] its case

with the insistence that there is ‘no objective resemblance between’ Mount Hope Bay and the contiguous

Taunton River Estuary.” The EPA then pointed out

that, “[d]espite the hyperbole,” those two bodies of water “are in fact a series of segments of the same estuarine system, characterized by different levels of mixing

of the same two source waters, continual exchange of

waters among estuarine segments, the same sources

for sediment, the same climactic conditions, [and]

App. 35

minor differences in depth range.” The EPA also adds

that the City has yet to explain how or why any of

these purported differences are relevant to the target

nitrogen threshold that the EPA selected.

The City’s objection to the EPA’s reliance on data

from MHB16 cannot be squared with the principle that

our review of agency action must afford deference to

the scientific judgments of the agency that Congress

has tasked with carrying out the context-sensitive implementation of the CWA. See Overton Park, 401 U.S.

at 416. Ultimately, our recognition that “[w]here the

agency follows the proper procedures and acts with a

reasonable basis, both its choice of scientific data and

interpretation and application of that data to real

world conditions are entitled to deference,” forecloses

the City’s challenge here. Upper Blackstone, 690 F.3d

at 26. This is especially so when the City has not outlined with any specificity why the differences between

MHB16 and the Taunton Estuary would make the

EPA’s reliance on that data indefensible.

3.

The City’s final challenge is that the EPA erred in

failing to take “existing conditions” in the Taunton Estuary into account in fashioning the permit’s nitrogen

limitation.

Having determined that a total nitrogen threshold

of 0.45 mg/l was necessary to protect the Taunton Estuary from nutrient impairment, the EPA then calculated the maximum nitrogen load from the Taunton

App. 36

River watershed that the Estuary could receive without exceeding that threshold. After using a model to

calculate the amount of nitrogen that the Estuary

would receive from ocean inflows, the EPA concluded

that the watershed’s various sources of nitrogen could

discharge 2,081 lbs. per day of that nutrient before

pushing the Estuary’s nitrogen concentration past the

0.45 mg/l limit. This amounted to approximately a 51%

reduction in total nitrogen loads from 2004-05 levels.

The EPA then subtracted from that 2,081 lb. limit the

amount of Nitrogen, 1,142 lbs., it projected would flow

from non-point sources.15 This resulted in a total maximum daily limit of 939 lbs. for the EPA to allocate

among the Estuary’s various point-source dischargers

of nitrogen.

The EPA first noted that allocating this maximum

load “equitably” among the watershed’s six non-minor

point-sources of nitrogen would result in requiring

each of those sources to limit their discharges to a nitrogen concentration between 3.4 and 3.5 mg/l.16 But,

the EPA then took into account that (1) “upgrades to

15

To arrive at this number, the EPA started the average daily

nitrogen load from non-point sources during 2004-05. Then, “consistent with approaches in approved [total maximum daily limits]

in Massachusetts and elsewhere,” the EPA reduced that number

by 20% to account for “the prevalence of regulated [municipal]

stormwater discharges, trends in agricultural uses and population, and potential reductions in atmospheric deposition through

air quality programs.”

16

The EPA did not take into account five point-sources that

discharged less than one million gallons per day, explaining that

they were “de minimis contributors for the purposes of this analysis.”

App. 37

meet the most stringent permit limits are more costeffective at facilities with the highest flows and the

highest proportion of the load delivered to the estuary;

(2) the Facility is the watershed’s second-largest discharger; and (3) the Facility “discharges directly to the

upper portion of the Taunton River estuary, with no potential for uptake or attenuation of its nitrogen discharges.” The EPA therefore found it appropriate to

assign the Facility – which has a “design flow” of 8.4

million gallons per day – a permit limit of 3.0 mg/l. The

EPA assigned the same limit on the Estuary’s two

other largest point-source dischargers, belonging to

the towns of Brockton and Somerset. The three remaining smaller facilities received a limit of 5.5 mg/l.

The City presses that, in arriving at the final permit limit for the Facility, the EPA relied only on the

SMAST data, which is from 2004-06, and as a result

failed to take account of the allegedly substantial improvements in terms of dissolved oxygen and algal conditions that have since taken place in the Taunton

Estuary. Those improvements, the City says, may even

have obviated the need for any nitrogen limit in the

permit. Specifically, the City says that the EPA failed

to acknowledge the following recent developments: (1)

the Taunton Estuary’s temperature has decreased as a

result of the closure of the nearby Brayton Point power

plant; (2) the “inputs of [total nitrogen] have declined”

in Narragansett Bay, Mount Hope Bay, and the Taunton Estuary; (3) “organic loadings from [combined

sewer overflows] to the upper and lower [Taunton

App. 38

Estuary] have declined; and (4) “algal levels in [Mount

Hope Bay] have declined.”

Insofar as the City challenges the facial validity of

the SMAST data due to the time that had elapsed since

its collection, that argument is unavailing. Our standard of review, once more, does not deputize us to second-guess the EPA’s choice of data, so long as the

agency acts “with a reasonable basis” in selecting and

applying it. Upper Blackstone, 690 F.3d at 26. And here,

as the EAB explained, the agency had good reason for

relying on the SMAST data, which drew from 22 different monitoring stations: the more recent studies – such

as that of the Narragansett Bay Water Quality Network – were “limited in terms of location and parameters monitored and thus were insufficient to form the

basis for an alternative analysis of the Taunton Estuary.” Moreover, the EPA did not ignore that recent

data, but rather found that it was “consistent with [its]

analysis of the SMAST data and indicated continued

adverse water quality impacts.” Further, we have recognized that “neither the CWA nor EPA regulations

permit the EPA to delay issuance of a new permit indefinitely until better science can be developed, even

where there is some uncertainty in the existing data.”

Id. at 22; see also Massachusetts v. EPA, 549 U.S. 497,

534 (2007) (explaining that the EPA cannot avoid its

statutory obligation to regulate greenhouse gases by

“noting the uncertainty surrounding various features

of climate change” when “sufficient information exists

to make an endangerment finding”). Thus, we think

App. 39

that the EPA was well-entitled to use the SMAST data

in the manner that it did here.

Moreover, the agency’s express consideration of

the four different recent developments identified by the

City reinforces our conclusion that the permit’s nitrogen limit was not arbitrary or capricious. With regard

to the Brayton Point plant, the EPA resoundingly rejected the notion that the plant’s closure should have

impacted its analysis. First, it explained that while operative, the plant’s thermal discharges may have “contributed incrementally to dissolved oxygen depletion in

Mount Hope Bay [but], . . . extensive modeling efforts

. . . were unable to quantify the impact of those thermal

discharges on [dissolved oxygen] concentrations.” The

EPA further explained in the response to comments

that the impact of the plant’s thermal discharges was

minimal in the Taunton River Estuary because of that

portion of Mount Hope Bay’s naturally elevated temperatures. And the EPA also noted that – because

thermal loads in the Mount Hope Bay had been “dramatically reduced since 2011,” while dissolved oxygen

depletions nonetheless persisted during that period –

the City’s theory that the plant’s closure had remedied

the Taunton Estuary’s low dissolved oxygen levels was

“unsupported by any evidence at all.”

Turning to the City’s next argument – that the

EPA failed to consider new data indicating that total

nitrogen inputs had declined – we note that the EAB

rejected the City’s claim that the agency failed to consider “potential improvements.” In so doing, the EAB

emphasized that in the response to comments, the EPA

App. 40

explained that “while some nitrogen reductions have

occurred in connection with improved treatment at

other wastewater treatment plants in Massachusetts,

these reductions are not predicted to be sufficient to

achieve the target nitrogen concentration or water

quality standards.”

The EPA also took up the City’s submission concerning reduced combined sewer overflows in the response to comments, but concluded that those

reductions “while important in addressing other pressing water quality problems, are not expected to have a

significant impact on [dissolved oxygen] conditions in

the upper Taunton River estuary.” The EPA also explained that those reductions came nearly entirely

from combined sewer overflows “located more than 6

miles downstream of the station used as the locus for

the loading analysis and discharge only during wet

weather, when flows from the Taunton River are at

their highest and . . . move most strongly away from

the estuary.” Thus, the EPA was similarly unmoved by

this objection from the City.

Finally, while the City maintains that the EPA has

conceded that algal conditions have improved, the

EPA’s engagement with that argument in the response

to comments proves otherwise. There, it explained that

it disagreed with the City’s comment asserting that

“[a]lgal levels in Mount Hope Bay have dropped significantly since 2004/05” and that “[p]eak and average algal levels are at all-time lows.” That comment, the EPA

tells us, attempted to draw “conclusions from a single

year of variation[,] 2010, while 2009 was the highest

App. 41

year on record for average chlorophyll-a concentrations.” And, the EPA added, the chlorophyll-a concentrations recorded in 2010, “while lower than those seen

in 2004-05, are still significantly higher than the levels

identified in the Critical Indicators Report as reflecting unimpaired conditions in SB waters.” We, therefore, do not think that the EPA’s permitting decision

suffers from any failure to engage with this submission

either. The City, therefore, fails to convince us that the

EPA impermissibly relied on the SMAST data or neglected to consider developments that post-dated that

data.

We now turn to its final contention: that, in allocating the total daily maximum nitrogen load of 939

lbs. among point-sources of nitrogen, the EPA ignored

the “impact of the largest (by far) discharger in the system” – the City of Fall River. The EPA urges us to find

this argument waived, the City having raised it only

after briefing before the EAB was complete, by way of

an untimely submission. But even were we to consider

this argument on the merits, the outcome would be no

better for the City. For, the EPA calculated the Permit’s

nitrogen limit based on standards governing and conditions in the Taunton River Estuary, while Fall River

discharges only into the greater Mount Hope Bay. And,

far from ignoring Fall River’s impact on conditions in

Mount Hope Bay, the EPA explained as early as in the

fact sheet that “[w]hile other loads to Mount Hope Bay

(particularly the Fall River [wastewater treatment

plant]) will need to be addressed as well, the reduction

in nitrogen loadings from the Taunton River will

App. 42

ensure that those discharges do not cause or contribute

to nitrogen-related impairments in Mount Hope Bay.

Having considered all of the City’s protestations to

the contrary, we find that in calculating the Permit’s

effluent limit, the EPA neither relied on impermissible

factors nor failed to consider a crucial aspect of the

problem, and that its explanation for that limit neither

flaunted the evidence in the record nor is “so implausible that it could not be ascribed to a difference in view

or the product of agency expertise.” Motor Vehicle Mfrs.

Ass’n, 463 U.S. at 43. As the EPA’s detailed explanation

of how it calculated the permit’s nitrogen limit of 3.0

mg/l reveals, that limit falls within the “zone of reasonableness,” and so we do not see fit to second-guess it.

See Upper Blackstone, 690 F.3d at 28; see also Solite

Corp. v. EPA, 952 F.2d 473, 488 (D.C. Cir. 1991). As a

result, we leave undisturbed this well-reasoned exercise of the EPA’s delegated authority to administer the

CWA.

III.

None of the City’s procedural or substantive challenges having merit, the decision of the EAB is affirmed.

App. 43

United States Court of Appeals

For the First Circuit

-----------------------------------------------------------------------

No. 16-2280

CITY OF TAUNTON, MASSACHUSETTS,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

-----------------------------------------------------------------------

JUDGMENT

Entered: July 9, 2018

This cause came on to be heard on a petition for

review of an order of the United States Environmental

Protection Agency and was argued by counsel.

Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The decision of

the Environmental Appeals Board is affirmed.

By the Court:

/s/ Margaret Carter, Clerk

App. 44

cc:

Sean Lyness

John C. Hall

David Jay Kaplan

Sarah A. Buckley

App. 45

40 C.F.R. § 122.44 Establishing limitations, standards,

and other permit conditions (applicable to State

NPDES programs, see § 123.25).

In addition to the conditions established under § 122.43(a),

each NPDES permit shall include conditions meeting

the following requirements when applicable.

*

*

*

(d) Water quality standards and State requirements:

any requirements in addition to or more stringent than

promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318 and 405 of

CWA necessary to:

(1) Achieve water quality standards established

under section 303 of the CWA, including State narrative criteria for water quality.

(i) Limitations must control all pollutants

or pollutant parameters (either conventional,

nonconventional, or toxic pollutants) which

the Director determines are or may be discharged at a level which will cause, have the

reasonable potential to cause, or contribute to

an excursion above any State water quality

standard, including State narrative criteria

for water quality.

(ii) When determining whether a discharge

causes, has the reasonable potential to cause,

or contributes to an in-stream excursion

above a narrative or numeric criteria within

a State water quality standard, the permitting authority shall use procedures which

App. 46

account for existing controls on point and nonpoint sources of pollution, the variability of

the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity

testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of

the effluent in the receiving water.

(iii) When the permitting authority determines, using the procedures in paragraph

(d)(1)(ii) of this section, that a discharge

causes, has the reasonable potential to cause,

or contributes to an in-stream excursion above

the allowable ambient concentration of a State

numeric criteria within a State water quality

standard for an individual pollutant, the permit must contain effluent limits for that pollutant.

(iv) When the permitting authority determines, using the procedures in paragraph

(d)(1)(ii) of this section, that a discharge

causes, has the reasonable potential to cause,

or contributes to an in-stream excursion

above the numeric criterion for whole effluent

toxicity, the permit must contain effluent limits for whole effluent toxicity.

(v) Except as provided in this subparagraph, when the permitting authority determines, using the procedures in paragraph

(d)(1)(ii) of this section, toxicity testing data,

or other information, that a discharge causes,

has the reasonable potential to cause, or contributes to an in-stream excursion above

a narrative criterion within an applicable

App. 47

State water quality standard, the permit

must contain effluent limits for whole effluent

toxicity. Limits on whole effluent toxicity are

not necessary where the permitting authority

demonstrates in the fact sheet or statement of

basis of the NPDES permit, using the procedures in paragraph (d)(1)(ii) of this section,

that chemical-specific limits for the effluent

are sufficient to attain and maintain applicable numeric and narrative State water quality

standards.

(vi) Where a State has not established a water quality criterion for a specific chemical

pollutant that is present in an effluent at a

concentration that causes, has the reasonable

potential to cause, or contributes to an excursion above a narrative criterion within an applicable State water quality standard, the

permitting authority must establish effluent

limits using one or more of the following options:

(A) Establish effluent limits using a calculated numeric water quality criterion

for the pollutant which the permitting

authority demonstrates will attain and

maintain applicable narrative water quality

criteria and will fully protect the designated use. Such a criterion may be derived using a proposed State criterion, or

an explicit State policy or regulation interpreting its narrative water quality criterion, supplemented with other relevant

information which may include: EPA’s Water Quality Standards Handbook, October

App. 48

1983, risk assessment data, exposure

data, information about the pollutant

from the Food and Drug Administration,

and current EPA criteria documents; or

(B) Establish effluent limits on a caseby-case basis, using EPA’s water quality

criteria, published under section 304(a) of

the CWA, supplemented where necessary

by other relevant information; or

(C) Establish effluent limitations on an

indicator parameter for the pollutant of

concern, provided:

(1) The permit identifies which pollutants are intended to be controlled

by the use of the effluent limitation;

(2) The fact sheet required by § 124.56

sets forth the basis for the limit, including a finding that compliance

with the effluent limit on the indicator parameter will result in controls

on the pollutant of concern which are

sufficient to attain and maintain applicable water quality standards;

(3) The permit requires all effluent

and ambient monitoring necessary

to show that during the term of the

permit the limit on the indicator parameter continues to attain and maintain applicable water quality standards;

and

App. 49

(4) The permit contains a reopener

clause allowing the permitting authority to modify or revoke and reissue the permit if the limits on the

indicator parameter no longer attain

and maintain applicable water quality standards.

(vii) When developing water quality-based

effluent limits under this paragraph the permitting authority shall ensure that:

(A) The level of water quality to be

achieved by limits on point sources established under this paragraph is derived

from, and complies with all applicable

water quality standards; and

(B) Effluent limits developed to protect

a narrative water quality criterion, a numeric water quality criterion, or both, are

consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by the

State and approved by EPA pursuant to

40 CFR 130.7.

(2) Attain or maintain a specified water quality

through water quality related effluent limits established under section 302 of CWA;

(3) Conform to the conditions to a State certification under section 401 of the CWA that meets

the requirements of § 124.53 when EPA is the permitting authority. If a State certification is stayed

by a court of competent jurisdiction or an appropriate State board or agency, EPA shall notify the

App. 50

State that the Agency will deem certification

waived unless a finally effective State certification

is received within sixty days from the date of the

notice. If the State does not forward a finally effective certification within the sixty day period, EPA

shall include conditions in the permit that may be

necessary to meet EPA’s obligation under section

301(b)(1)(C) of the CWA;

(4) Conform to applicable water quality requirements under section 401(a)(2) of CWA when the

discharge affects a State other than the certifying

State;

(5) Incorporate any more stringent limitations,

treatment standards, or schedule of compliance

requirements established under Federal or State

law or regulations in accordance with section

301(b)(1)(C) of CWA;

(6) Ensure consistency with the requirements of

a Water Quality Management plan approved by

EPA under section 208(b) of CWA;

(7) Incorporate section 403(c) criteria under part

125, subpart M, for ocean discharges;

(8) Incorporate alternative effluent limitations

or standards where warranted by “fundamentally

different factors,” under 40 CFR part 125, subpart

D;

(9) Incorporate any other appropriate requirements, conditions, or limitations (other than effluent limitations) into a new source permit to the

extent allowed by the National Environmental

Policy Act, 42 U.S.C. 4321 et seq. and section 511

App. 51

of the CWA, when EPA is the permit issuing authority. (See § 122.29(c)).

*

*

*

App. 52

Figure 1: Map showing location of WQBEL analysis in

Upper Taunton Estuary and site selected to represent

Upper Taunton Estuary (sentinel site)

App. 53

Figure 2: Graph demonstrating that no relationship

exists (R2 = 0.0989) between TN and algal growth

(measured as chlorophyll-a) in the Upper

Taunton Estuary.

App. 54

Figure 3: Graph demonstrating that no relationship

exists (R2 = 0.0097) between TN and minimum

DO in the Upper Taunton Estuary.