Petition for Writ of Certiorari — Puerto Rico Aqueduct & Sewer Authority v. Environmental Protection Agency
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Supreme Court, u.
(\) FILED -
94 95 9NOV 28 1994
No. -
—— __ OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
PUERTO RICO AQUEDUCT AND
SEWER AUTHORITY,
Petitioner,
V.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR WRIT OF CERTIORARI
NEIL T. PROTO"
JOHN B. BRITTON
EDGAR RODRIGUEZ-MENDEZ LISA K. HSIao
JORGE MARRERO-NARVAEZ VERNER, LIIPFERT,
PUERTO RICO AQUEDUCT AND BERNHARD, MCPHERSON
SEWER AUTHORITY AND HAND, Chtd.
604 Barbosa Avenue 901 Fifteenth Street, N.W.
Hato Rey, Puerto Rico 00919 Washington, D.C. 20005
Attormeys for Petitioner Re) SPL
Puerto Rico Aqueduct and “Counsel of Record
Sewer Authority
‘ai
i
QUESTIONS PRESENTED
I. Whether, in using without notice or an explanation of
reasons the summary judgment standard of Rule 56 of the
Federal Rules of Civil Procedure as the burden of proof for
granting an evidentiary hearing, the Environmental Protection
Agency impermissibly departed from the explicit legal standard
articulated in its regulations.
II. Whether such a departure by an administrative agency,
permitted and rationalized by the First Circuit, should be
enforced judicially when comparable attempted departures have
been set aside and have not warranted such deference by this
Court and the Courts of Appeals for the First, Fourth, Fifth and
District of Columbia Circuits.
III. Whether the First Circuit’s failure to identify and accord
any deference to the Congressionally recognized scientific
expertise of the United States Geological Survey, which
conducted the only empirical study on the effects of the
Mayaguez outfall and made findings of scientific fact that
supported the Puerto Rico Aqueduct and Sewer Authority’s
request for an evidentiary hearing, was contrary to this Court’s
long-standing admonition to accord such deference.
IV. Whether the First Circuit’s affirmation of the
Environmental Protection Agency’s denial of the Puerto Rico
Aqueduct and Sewer Authority’s evidentiary hearing request,
based on its alleged failure to present evidence sufficient to meet
regulations that Environmental Protection Agency has conceded
are scientifically imprecise and speculative in their requirements,
was contrary to this Court’s admonition in Weinberger v.
Hynson, Westcott & Dunning, Inc., 412 U.S. 609 (1973).
~ oO
PARTIES TO THE PROCEEDING
The petitioner is the Puerto Rico Aqueduct and Sewer
Authority ("PRASA"), petitioner in the court below. The
respondent is the United States Environmental Protection
Agency ("EPA"), respondent in the court below.
- ill -
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...... 2... 22s ceeeeces i
io ot tly Ea & 0 ¢ Ba ii
pf Ee 8). en a Vv
ee a l
JURISDICTION OF THE SUPREME COURT ........ 2
STATUTORY AND REGULATORY PROVISIONS
ee ho tae eg les wo <a es 0d <4 2
STATEMENT OF THECASE ...........2 cece 5
aS ree ee ee 9
B. Facts of the Case and Proceedings Below ...... 12
REASONS FOR GRANTING THE WRIT .......... 17
1. In Allowing The Use Of The Summary Judgment
Standard Of Rule 56 Of The Federal Rules Of Civil
Procedure As The Burden Of Proof For Granting An
Evidentiary Hearing, The First Circuit Has Permitted
The EPA To Depart Without Proper Notice Or Any
Explanation Of Its Legal Reasons From The Evidentiary
Standard Explicitly Articulated In Its Regulation And
Used In Its Precedents For Many Years, Acting
Contrary To The Decisions Of This Court, And The
Decisions Of The Courts Of Appeals For The First,
Fourth, Fifth And District Of Columbia Circuits. .... 17
etl
o «
a. The First Circuit Exceeded Its Judicial Role By
Providing A Rationale For The Agency’s Arbitrary
Behavior Where The Agency Provided None .... 22
b. In Departing From The Established Evidentiary
Standard Without Notice And Explanation Of Its
Legal Reasons, The EPA And The First Circuit
Have Altered The Burdens, Responsibilities And
Order Of Presentations On PRASA .......... 23
2. The First Circuit Failed To Acknowledge and To
Accord Proper Deference To The Scientific Expertise
And Findings Of Fact Of The United States Geological
NEE SA ie eae ee ee we eee be aes 25
3. The First Circuit’s Decision Conflicts With
Weinberger v. Hynson, Westcott & Dunning, Inc., By
Denying An Evidentiary Hearing Based On EPA’s
Acknowledged Scientifically Imprecise And Speculative
PE seas Sas Ses ee eee ee eae 27
I i yg 50's ok eae Pee es 30
EU odds a od oa Se Al
IR d+ 4 -t 4b os Ko oo a ne oe A26
Se Who 08 Fe ee he ee A33
PE Fd 62 oe CON eee ES A62
Co re a mere en ee A73
ED 5 6 oe Nd ne ee eee er A82
TABLE OF AUTHORITIES
Cases: Page
Anderson v. Liberty Lobby, Inc., 477 U.S.
De a 4c eek 8s 8 OGD Oe 24
Atchison, Topeka & Santa Fe Railway v.
Wichita Board of Trade, 412 U.S. 800
oy 5 er 0k oe 8 Oe 20
Baltimore & Annapolis Railroad v.
Washington Metropolitan Area Transit
Commission, 642 F.2d 1365 (D.C. Cir.
GE 6 fo6 oa A eee Cree 21
Baltimore Gas & Electric Co. v. Heintz,
760 F.2d 1408 (4th Cir.), cert. denied,
SITS: er ee 6 6 oe Be Sr 6s ese ees 22
Baltimore Gas & Electric Co. v. Natural
Resources Defense Council, Inc., 462
Ce Br ee ake a he Pe ees 86a EROS 26
Bowen v. American Hospital Association,
Py §o8 @ 0. Ee ee ee eee 20
Caminetti v. United States, 242 U.S. 470
Ee 5 ee eee re Es 4 FAR EO 18
Costle v. Pacific Legal Foundation, 445
2 8 f. Sees eer ae eee a 19, 25
Federal Power Commission v. Florida Power
& Light Co., 404 U.S. 453 (1972) ........-.--+-- 26
° Vi -
Table of Authorities Continued
Page
Greater Boston Television Corp. v. FCC,
444 F2d 8&1 (D.C. Cir 1970), cert.
Pr le LE a. 21
Greene v. Rash, Curtis & Associates, 89
RR 8 24
Hatch v. FERC, 654 F.2d 825 (D.C. Cir.
ERED, 5-05 44's On ee eee eee Se 21, 22
In re 446 Alaska Placer Mines, NPDES Appeai
No. 84-13, 1985 NPDES LEXIS 8 (April 2,
Pere es oy te eee ee eee eee 19
In re City & County of San Francisco,
NPDES Appeal No. 91-18, 1993 TSCA
Boe FF ee 19
In re City of Jacksonville, District II
Wastewater Treatment Plant, NPDES
Appeal No. 91-19 (Envtl. App. Bd. August
4, TE bk Sa ee eee 19
In re Detroit Plastic Molding Co., TSCA
Appeal No. 87-7, 1990 TSCA LEXIS 2 (March
| Pr ee eee 25
In re Great Lakes Chemical Corp., NPDES
Appeal No. 84-81, 1985 NPDES LEXIS 9
PP ee ee er ee ee eee 19
In re Mayaguez Regional Sewage Plant,
NPDES Appeal No. 92-23, 1993 TSCA LEXIS
240 (August 23, 1993) ................0-00-. 1
- Vil -
Table of Authorities Continued
In re NPDES Permit for: Public Service Company
of Oklahoma (Black Fox Station), NDPES
Appeal No. 78-13, 1980 NPDES LEXIS 8 (June
Re er ee ee
In re NPDES Permits for Shell Oil Co., NPDES
Appeal No. 78-8, 1979 NPDES LEXIS 4
ae re
In re Wego Chemical & Mineral Corp., TSCA
Appeal No. 92-4, 1993 TSCA LEXIS 91
oe ee ee ee ee
Joint Anti-Fascist Refugee Commission v.
BGG, BSE WLS. TAS (ISSA) 2. wc eens
Leonard v. Dixie Well Service & Supply, Inc.,
Be Re A errr ee ee
Mathews v. Eldridge, 424 U.S. 319 (1976) ...........
Mitchell v. W. T. Grant Co., 416 U.S. 600
re eee ee ee ee a a
Morgan v. United States, 304 U.S. 1 (1938) ..........
Motor Vehicle Manufacturers Association of
the United States, Inc. v. State Farm
Mutual Automobile Insurance Co., 463 U.S.
eee a Wees nade tees
NLRB v. J. Weingarten, Inc., 420 U.S. 251
ee ee ee ee ee ee ee ee
- Vili -
Table of Authorities Continued
Page
NLRB vy. Yeshiva University, 444 U.S. 672
=a aa eae al ce ae ie ae a sod 25
National Railroad Passenger Corp. v. Boston
& Maine Corp., _ US. __, 112 S. Ct.
SN ws et ae oe ee aes oe eS 23
Natural Resources Defense Council, Inc. v. EPA,
ge Be ee) 11
Natural Resources Defense Council, Inc. v. EPA,
ee Woe Be Ge, GH. TRB) lw ee ee ee ewan 18
Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325
ee fe we ae oe a ok oe webs 18
Parrish v. Board of Commissioners, 533 F.2d 942
ee are fr ere 24
Puerto Rico Aqueduct and Sewer Authority v. EPA,
Se ee Oe CO Ge PI bch ee eee ec wea sens 1
Russello v. United States, 464 U.S. 16 (1983) ......... 18
Secretary of Agriculture of United States v.
United States, 347 U.S. 645 (1954)... ........... 20
Shaw’s Supermarkets, Inc. v. NLRB, 884 F.2d 34
oe ea ee 20, 22
Smithkline Corp. v. Food & Drug Administration,
eee eg ee 28
« iX -
Table of Authorities Continued
Smolen v. Deloitte, Haskins & Sells, 921 F.2d
pe a ee es eee
St. Mary’s Honor Center v. Hicks, __ US. __,
pe 2 Be Ree ere re ee
United Gas Pipe Line Co. v. FERC, 597 F.2d 581
(Sth Cir. 1979), cert. denied, 445 U.S. 916
Pat Bre) ea era ee ee ee re
United States v. Behnezhad, 907 F.2d 896 (9th
| ea ee rae er eer ee ee
United States v. Paddack, 825 F.2d 504 (D.C.
EE a ails: «55 ik ck eee SO ee
Utah v. United States, 780 F.2d 1515 (10th Cir.
1985), rev'd on other grounds, 482 U.S. 193
RMS rele Sk SP eae ae ee ae a aera
Weinberger v. Hynson, Westcott & Dunning, Inc.,
oe eee ee
‘. . ef. 2 oe ee oe ek es er ok or oe for ee ee ee ee ee ee ee ee ee ee
West Ohio Gas Co. v. Public Utilities Commission
@ Gale, 2P9 U.S. Gb GPSS) 2 cc ccc cae.
Wisniewski v. Johns-Manville Corp., 812 F.2d 81
ee rere err ee re
1+ aaa
-X-
Table of Authorities Continued
Page
Statutes and regulations:
a ek eh ee 84 6 ee ESE 3,4
Te I oa ce oe tn y ae we ee 3,4
Ze UR. BD 6 no ie eins eRe 2
25 TL.. 6 Teeter COD 6 ch die ee eee 2,9
SS ae BA ev a eA eR es 10
ae ee ee sk ee ee a ee ee passim
po RE oe oS. a. rere ree re errr ere 10, 22
Fk ae ee ne err eer 6, 25
i aes ee se es ck ee ee 26
pe ee ee era 6, 26
Pe Mee | a re passim
ee Me ee passim
Foie eR 2h ee er re ere 9, 18
ee) | Be aren are passim
ee ee 9, 18
ee ES Oo | ee rer 9, 18
« Xi «
Table of Authorities Continued
Page
Miscellaneous:
S. Rep. No. 370, 95th Cong., Ist Sess. 44-46 (1977),
reprinted in 1977 U.S.C.C.A.N. 4326 ........... 7, 11
2A Norman J. Singer, Sutherland Statutory Construction
OBS COU OE. TURD nc eee ere enee 18
eee SOR SF eer rrr ee re 26
oe MR | ren ar rar 17
oe MO Rt ee rer re ee 17, 18
MA Fea. Wag. S47G4 CIDTS) 0 ww cc ce ce wee passim
No.
——— manatee
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
PUERTO RICO AQUEDUCT AND SEWER AUTHORITY
Petitioner,
V.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR WRIT OF CERTIORARI
The Puerto Rico Aqueduct and Sewer Authority ("PRASA")
respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the First
Circuit entered in this case on August 31, 1994.
OPINIONS BELOW
The decision of the court of appeals (App. A1) is reported at
35 F.3d 600 (ist Cir. 1994). The Order Denying Review of the
Environmental Appeals Board (App. A33) is reported at NPDES
Appeal No. 92-23, 1993 TSCA LEXIS 240 (August 23, 1993).
The Order Denying Reconsideration and Stay Pending Review
of the Environmental Appeals Board (App. A26) is unreported.
a
JURISDICTION OF THE SUPREME COURT
The judgment of the court of appeals was entered on
August 31, 1994. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1) (1988).
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
1. The Federal Water Pollution Control Act ("Clean Water
Act), 33 U.S.C. §§ 1251-1387, is produced in relevant part
below:
§ 1251. Congressional declaration of goals and
policy.
(a) Restoration and maintenance of chemical,
physical and biological integrity of Nation’s
waters; national goals for achievement of
objective
The objective of this chapter is to restore and maintain
the chemical, physical, and biological integrity of the
Nation’s waters....
* * *
(b) Congressional recognition, preservation, and
protection of primary responsibilities and rights
of States
It is the policy of the Congress to recognize, preserve,
ana protect the primary responsibilities and rights of States
to prevent, reduce, and eliminate pollution, to plan the
development and use ... of land and water resources ....
33 U.S.C. § 1251 (1988).
<— o
2. 33 U.S.C. § 1311(h)(2) ("Section 301(h)(2)") of the
Clean Water Act is produced in relevant part below:
(2) the discharge . . . will not interfere, alone or in
combination with pollutants from other sources, with the
attainment or maintenance of that water quality which
assures protection of public water supplies and the
protection and propagation of a balanced, indigenous
population of shellfish, fish, and wildlife . .
33 U.S.C. § 1311(h)(2) (1988).
3. The relevant provisions of the Administrative Procedure
Act, 5 U.S.C. §§ 551-559, 704-706, are set forth below:
All decisions, including initial, recommended, and
tentative decisions, are a part of the record and shall
include a statement of --
(A) findings and conclusions, and the reasons or
basis therefor, on all the material issues of fact, law, or
discretion presented on the record... .
5 U.S.C. § 557(c) (1988).
The reviewing court shall --
(1) compel agency action unlawfully withheld or
unreasonably delayed; and
(2) hold unlawful and set aside agency action,
findings, and conclusions found to be —
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(B) contrary to constitutional right, power,
privilege, or immunity; .. .
(D) without observance of procedure required
by law;
>
(E) unsupported by substantial evidence... .
5 U.S.C. § 706 (1988).
4. Relevant portions of the regulations governing the
request for and grant of evidentiary hearings on permit decisions
arising under 33 U.S.C. § 1311(h), at 40 C.F.R. §§ 124.74-.75
are set forth below:
§ 124.74. Requests for Evidentiary Hearing.
(a) Within 30 days following the service of notice
of the Regional Administrator’s final permit decision
under § 124.15, any interested person may submit a
request to the Regional Administrator under paragraph
(b) cf this section for an evidentiary hearing to
reconsider or contest that decision. . . .
(b)(1) In accordance with § 124.76, such requests
shall state each legal or factual question alleged to be at
issue, and their relevance to the permit decision,
together with a designation of the specific factual areas
to be adjudicated and the hearing time estimated to be
necessary for adjudication. . .
40 C.F.R. § 124.74 (1994).
§ 124.75. Decision on request for a hearing.
(a)(1) Within 30 days following the expiration of
the time allowed by § 124.74 for submitting an
evidentiary hearing request, the Regional Administrator
shall decide the extent to which, if at all, the request
shall be granted, provided that the request conforms to
the requirements of § 124.74, and sets forth material
issues of fact relevant to the issuance of the permit.
40 C.F.R. § 124.75 (1994).
5. Relevant portions of the regulation governing the award
of a modification and waiver of permit requirements mandated
by 33 U.S.C. § 1311(h)(2) are set forth below:
§ 125.61. Attainment or maintenance of water
quality which assures protection of public water
supplies, the protection and propagation of a
balanced, indigenous population of shellfish, fish,
and wildlife, and allows recreational activities.
*x** *
(f) Stressed waters. If an applicant believes that its
failure to meet the requirements of paragraphs (a)
through (e) of this section is attributable to conditions
resulting from human perturbations other than its
modified discharge (including, without limitation, other
municipal or industrial discharges, nonpoint source
runoff and the applicant’s previous discharges), the
applicant must demonstrate, to the satisfaction of the
Administrator, that its modified discharge does not or
will not:
(1) Contribute to, increase, or perpetuate such
stressed conditions;
(2) Contribute to further degradation of the biota or
water quality if the level of human perturbation from
other sources increases; and
(3) Retard the recovery of the biota or water quality
if the level of human perturbation from other sources
decreases.
40 C.F.R. § 125.61 (1994).
STATEMENT OF THE CASE
The United States Court of Appeals for the First Circuit in
this case affirmed an Order of the Environmental Protection
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Agency’s ("EPA") Environmental Appeals Board ("the Board")
which denied review (App. A33) of EPA Region II’s ("Region
Il" or "EPA Region II") denial of the Puerto Rico Aqueduct and
Sewer Authority’s ("PRASA") request for an evidentiary hearing
concerning a material factual issue about the effect of PRASA’s
wastewater treatment plant’s discharge into Mayaguez Bay in
Mayaguez, Puerto Rico. The First Circuit affirmed based on
the Board’s finding that, although PRASA had raised a
"material" issue (App. A49), PRASA had failed to raise "a
genuine issue of material fact," as that phrase has been
articulated through the summary judgment standard and
jurisprudence from Rule 56 of the Federal Rules of Civil
Procedure. (App. Al6.) The Board imposed this evidentiary
standard on PRASA, even though it departs from the "material
issues of fact relevant to the issuance of the permit" standard
plainly and explicitly set forth by the EPA regulation governing
such evidentiary hearing requests, 40 C.F.R. § 124.75(a)(1)
(1994), and used in EPA’s precedents without an interpretive
reference to Rule 56 or to its jurisprudence. The Board did so
with no explanation other than its assertion that "this
requirement [in 40 C.F.R. § 124.75(a)(1)] is very similar to the
requirement set forth in Rule 56." (App. A48.)
Moreover, in applying this new evidentiary standard to
PRASA’s request for an evidentiary hearing, the Board accorded
no deference to the formal scientific findings and conclusions
presented in the only empirically based report on the effect of
the Mayaguez discharge undertaken by any administrative
agency. This report, prepared by the United States Geological
Survey ("the USGS") (App. A62), provided substantive support
for PRASA’s request. The First Circuit declined to
acknowledge and to accord any deference to the report’s formal
scientific findings and conclusions, despite the USGS’s long
history and Congressionally-recognized expertise with such
water related matters, see, e.g., 43 U.S.C. § 31 (1988),
especially in Puerto Rico, 30 C.F.R. § 401 (1993). Finally, the
First Circuit affirmed the Board’s denial of an evidentiary
a
hearing based on its finding that PRASA had failed to present
“any evidence” (App. A21) to meet EPA regulations which EPA
itself has acknowledged are scientifically imprecise and "so
difficult that EPA is unable to provide specific guidance or
suggested analytical procedures" for meeting them. 44 Fed.
Reg. 34784, 34806 (1979).
PRASA is the agency of the Commonwealth of Puerto Rico
which oversees all of the Island’s drinking water and wastewater
treatment and processing facilities. PRASA operates a publicly
owned treatment works at Mayaguez ("Mayaguez POTW"), a
small city on the western shore of Puerto Rico. The Mayaguez
POTW subjects wastewater to primary treatment. In 1979,
PRASA began the process of obtaining a modified permit, for a
waiver of secondary treatment requirements, for the Mayaguez
POTW pursuant to Section 301(h) of the Clean Water Act,
33 U.S.C. § 1311(h) ("Section 301(h)"). A Section 301(h)
waiver would eliminate the need to design and construct a new
secondary treatment facility that would have cost approximately
$25 million at the time. PRASA filed its Section 301(h) waiver
application with EPA Region II. At approximately the same
time, PRASA began constructing a pipeline outfall that would
channel the primary wastewater through a pipeline along the
ocean floor into the Mayaguez Bay, where it would be
discharged through the outfall into an area of the Bay known as
the Bahia de Afiasco. PRASA began its construction with
EPA’s conditional approval, in large part, in reliance on
Congress’ explicit recognition — especially for Puerto Rico —
that such a pipeline outfall could warrant a Section 301(h)
modification of secondary treatment requirements. See S. Rep.
No. 370, 95th Cong., Ist Sess. 44-46 (1977), reprinted in 1977
U.S.C.C.A.N. 4326, 4369-71. The pipeline outfall was
completed in 1987.
The permit modification application and application revision
process continued until 1991, when EPA Region II denied the
application. EPA Region Il, and later the Board in August -
x w
1993, denied PRASA’s request for an evidentiary hearing on
facts which supported its receipt of a modified permit under
Section 301(h). These facts were raised by PRASA in its
hearing request (App. A73; A82) and were supported and
confirmed by the USGS in its report prepared after the outfall
began operating in 1987. (App. 462.)
EPA’s regulations on evidentiary hearings, 40 C.F.R. Parts
124 and 125, do not contain or refer to the summary judgment
standard of the Federal Rules of Civil Procedure, or even to the
words of that Rule. This case represented the first and only
occasion on which the Board had applied explicitly the summary
judgment standard of Rule 56 to decide whether an applicant’s
case merited an evidentiary hearing. The Board provided no
notice that it was going to apply the new legal standard, nor did
it provide an explanation of the legal reasons for the new
standard. The Board did not even allow PRASA to resubmit its
evidentiary hearing request in light of the new standard.
The Board also failed even to acknowledge USGS’s
scientific findings and formal conclusions that the outfall did not
harm the surrounding marine environment and that the USGS
report provided the facts and methodology for a predictive
analysis about future effects as a means for meeting EPA’s
acknowledged scientifically imprecise regulations. EPA has
neither undertaken an empirical study of its own that examined
the outfall’s actual effects on the Bay nor has it provided
PRASA with a methodology for predictive analysis about future
effects.
The First Circuit endorsed the Board’s actions regarding its
application of the Rule 56 summary judgment standard, despite
the standard’s absence in the plain language of 40 C.F.R.
§ 124.75 and the court of appeals’ acknowledgement that the
Board had never before articulated the standard’s use. (App.
A19.) It speculated that EPA must have "necessarily
contemplated” such a standard (App. A9) and that, in any event,
EEE
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"we refuse to attach talismanic significance to the absence of the
stock phrase genuine issue of material fact,’" in the EPA
regulation. (App. Al0.) The Court also refused to explain the
meaning of EPA’s precise use of the “stock phrase" from Rule
56 in other evidentiary standards not applicable to
Section 301(h) hearing requests. See, e.g., 40 C.F.R. § 124.84
(1994); 40 C.F.R. § 164.91 (1993); 40 C.F.R. § 209.25 (1993).
The First Circuit’s opinion provided a rationale for the
Board’s actions, with regard to imposition of the summary
judgment standard, findings of fact, and application of those
facts to the regulatory requirements for a Section 301(h)
modification. (App. A9; A19.) In doing so, the First Circuit
contradicted not only its own prior decisions, but also the
decisions of this Court and other courts of appeals. Moreover,
the First Circuit exceeded its judicial role by substituting its own
reasoning for the Board’s departure from the well-established,
plainly stated standard, although the Board had offered none.
(App. Al6.) The First Circuit also failed to fulfill its judicial
role by ignoring significant scientific findings presented by the
USGS as well as the PRASA-USGS effort to divine and define a
methodology for predictive analysis where EPA had failed
deliberately to provide one.
A. Statutory Scheme
Passed in 1972 "to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters,"
33 U.S.C. § 1251(a) (1988), the Federal Water Pollution
Control Act Amendments of 1972, popularly known as the
Clean Water Act ("the Act"), prohibit "the discharge of any
pollutant . . . by any person,” id., into marine waters of the
United States unless a discharger meets certain discharge
requirements. 33 U.S.C. § 1311 (1988).
Under Section 301(b) of the Act, 33 U.S.C. § 1311(0), EPA
has established effluent discharge standards or limitations for
ie.
particular pollutants, consistent with effluent controls that are
achieved by dischargers, based on water quality standards or
practical and feasible pollution control technology. 33 U.S.C.
§ 1311(b) (1988). Accordingly, the Act requires sources that
discharge directly into navigable waters to obtain National
Pollution Discharge Elimination System ("NPDES") permits.
33 U.S.C. § 1342 (1988).
EPA or a state agency may issue an NPDES permit for the
discharge of any pollutant by a POTW, such as the Mayaguez
facility operated by PRASA.” To receive an NPDES permit,
the applicant must meet discharge requirements set forth in
Sections 301, 302, 306-08, and 403 of the Act, as well as any
other reasonable conditions EPA deems necessary to satisfy the
Act. 33 U.S.C. § 1342(a)(1) (1987).
Section 301(b) requires all POTWs to meet secondary
treatment standards in their NPDES permits, unless a discharger
can demonstrate that it qualifies for a modification of these
standards under Section 301(h), 33 U.S.C. § 1311(h).
Section 301(h) sets forth nine criteria a discharger must meet to
obtain a Section 301(h) NPDES permit modification. The
criterion at issue in this proceeding, Section 301(h)(2), requires:
(2) the discharge . . . will not interfere, alone or in
combination with pollutants from other sources, with the
attainment or maintenance of that water quality which
assures protection of public water supplies and the
protection and propagation of a balanced, indigenous
population of shellfish, fish, and wildlife . . .
33 U.S.C. § 1311(h)(2) (1988).
“A state may choose to implement the NPDES Permit Program; however, the
Commonwealth of Puerto Rico has chosen not to do so. EPA Region II issues
the NPDES permits for discharges in Puerto Rico.
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=
Congress enacted Section 301(h) in 1977 to relax the strict
requirements of the Clean Water Act in environments where the
rapid dilution and strong currents of ocean waters and deep
marine discharge would disperse concentrated pollutants and
render them harmless to the marine environment. Natural
Resources Defense Council, Inc. v. EPA, 656 F.2d 768, 773-74
(D.C. Cir. 1981). Congress specifically identified the shores off
the Commonwealth of Puerto Rico as appropriate geographic
and oceanographic settings for Section 301(h) waivers. S. Rep.
No. 370, 95th Cong., Ist Sess. 44-46 (1977), reprinted in 1977
U.S.C.C.A.N. 4326, 4369-71.
In 1979, EPA promulgated additional requirements based on
Section 301(h)(2), including those circumstances in which an
effluent would discharge into "stressed waters,” i.e., waters
already "stressed" by manmade sources other than the effluent.
44 Fed. Reg. 34784, 34806 (1979); see 40 C.F.R. § 125.61
(1994). Section 125.61(f) essentially requires a permit applicant
to demonstrate that its discharge does not now, nor will it ever,
“contribute to, increase, Or perpetuate such stressed conditions. "
40 C.F.R. § 125.61(f) (1994). The outfall’s overall effects on
the marine environment, not the volume of sediment discharged,
is the determinative factor in whether an applicant meets the
criteria for a Section 301(h) permit modification. 33 U.S.C.
§§ 1311(h)(1)-(9); 40 C.F.R. § 125.61(f). EPA warned that
"[a]s a practical matter, it will be extremely difficult for most
applicants discharging into stressed waters to demonstrate that
their discharge will meet the requirements of section 125.61."
44 Fed. Reg. at 34806. EPA specifically noted that
Section 125.61(f)(3), “which requires a predictive analysis of
biological responses to future pollution, is so difficult that EPA
is unable to provide specific guidance or suggested analytical
procedures for making this determination." /d.
If the EPA Region denies an application for a Section 301(h)
permit modification, EPA regulations permit the applicant to
request an evidentiary hearing on the denial. 40 C.F.R.
« 12.
§§ 124.74-.75 (1994). The relevant portion of the regulations
provides that "the Regional Administrator shall decide the extent
to which, if at all, the request shall be granted, provided that the
request conforms to the requirements of § 124.74, and sets forth
material issues of fact relevant to the issuance of the permit."
40 C.F.R. § 124.75(a)(1) (1994).
B. Facts of the Case and Proceedings Below
Puerto Rico began construction of the Mayaguez POTW in
1979, with the approval of EPA. Construction of the outfall
also was undertaken with EPA’s approval. The outfall began
discharging into the Bay in 1987, under an NPDES permit
issued while PRASA’s application for a Section 301(h) permit
modification was pending. The outfall discharges approximately
1,719 meters from shore, at a depth of approximately 33 meters.
Prior to the outfall’s operation, EPA’s theoretical modeling
techniques estimated its annual discharge at approximately 850
tons of sediment, approximately 1.3 percent of the total annual
sediment from all pollution sources into the Bay. The hills
surrounding Mayaguez Bay have been the site of local
agriculture for approximately three hundred years. The runoff
from this farming and the Rio Grande de Afiasco, contribute the
remaining 98.7 percent of sediment into the Bahia de Anasco,
the portion of the Bay adjacent to the Mayaguez outfall.
PRASA now operates under the interim requirements of the
1987 NPDES permit.
PRASA originally submitted its Section 301(h) application
for Mayaguez in September 1979, and EPA Region II issued its
final denial of PRASA’s Section 301(h) application on
December 13, 1991. The EPA Region II denial found, inter
alia, that PRASA had failed to address the issue of stressed
waters, as required by Section 301(h)(2).
On February 26, 1992, PRASA requested that EPA Region
II grant an evidentiary hearing, pursuant to 40 C.F.R.
0%.
§§ 124.74-.75, to contest the factual and legal bases for EPA
Region II’s denial. With its hearing request, PRASA submitted
a 1992 report prepared by the USGS. (App. A62.) The USGS
Report, which represents the first and only empirical
examination of the outfall’s effects since the plant began
operating in 1987, studied eight sites in Mayaguez Bay, and,
using those samples, concluded that during three years of
operation, the Mayaguez outfall had not affected adversely the
coral and related biota surrounding the outfall, thereby satisfying
an element of Section 301(h)(2) and EPA’s regulatory
requirements. The USGS Report also found that subsequent to
the initiation of the outfall’s operation, some of the marine
species actually had recovered from damage caused by earlier
natural events unrelated to the outfall. The USGS’s scientific
findings, especially those findings concerning effects unrelated
to the outfall, and the methodology used to attain them,
suggested an analytical means for examining future effects from
all sources of contaminants. Based on this Report and other
studies, PRASA so informed Region II in its request for an
evidentiary hearing, especially with respect to meeting the
requirements of 40 C.F.R. §§ 125.61(f)(1) and (f)(3).
(App. A73; A82.) The USGS Report consisted of the Report’s
factual findings and conclusions, a major primary study and, as
appendices to the Report, several subordinate studies “submitted
to the USGS" but not representing "the official position of the
U. S. Government." (App. A62.)
On July 23, 1992, the EPA Region II Administrator denied
PRASA’s evidentiary hearing request. (App. A44.) Although
by its own admission it had undertaken only a “cursory” review
of the USGS Report, Region II concluded that PRASA had
failed to present any evidence that it met the stressed waters
showings of 40 C.F.R. § 125.61(f), particularly (f)(1) and
(f)(3). As a result of its "cursory" review, Region II relied
almost exclusively on pre-1987, theoretical studies of the
outfall’s effects.
=
Region JI found that because PRASA had failed to raise
"material issues of fact relevant to the issuance of the permit" --
the explicit standard in 40 C.F.R. § 124.75 for an evidentiary
hearing -- it was denying PRASA’s evidentiary hearing request.
PRASA appealed Region II’s finding to the Board on August 25,
1992.
PRASA’s appeal to the Board challenged the factual and
legal conclusions made by Region II, especially its failure to
recognize and defer to the USGS’s official conclusions. On
August 23, 1993, the Board issued its Order Denying Review
("Order"). (App. A33.) The Board’s Order began by
articulating the explicit, applicable legal standard which
governed the grant of an evidentiary hearing request contained
in 40 C.F.R. § 124.75(a)(1). (App. A47.) The Board found
that PRASA had presented a "material issue of fact" regarding
its compliance with Section 301(h)(2) and 40 C.F.R.
§ 125.61(f). (App. A49.) Nonetheless, the Board found this
showing insufficient. (App. A55.) The Board explained that it
now construed 40 C.F.R. §§ 124.74(a) and 124.75(b)(1) as
requiring PRASA to “ensure that there is a genuine issue of
material fact," as that phrase has been articulated through the
summary judgment standard and jurisprudence from Rule 56 of
the Federal Rules of Civil Procedure. (App. A48; ASO.) The
Board did not explain why it was adopting this standard and its
jurisprudence, in this context, at this time, or what practical or
legal effects its actions would have on PRASA.
The Board made certain findings of fact drawn from the
USGS Report, with regard to PRASA’s alleged failure to show
that the Mayaguez outfall does not and will not contribute to,
increase, Or perpetuate stressed conditions under
Section 125.61(f). (App. A56.) The Board failed to
acknowledge the USGS Report’s formal conclusion, which
found not only that the outfall was not implicated in any coral
degradation, but that the outfall did not have adverse effects on
«48.
the biota in the Bahia de Afiasco. (App. A65.) Those
conclusions stated:
. . . data collected during this study does not implicate
the outfall as a stressor. Balanced indigenous
populations were documented in the soft-bottom
communities at 8 sites in the bay, including a site in the
initial mixing zone of the outfall. Significantly, the
growth rate at the star coral Montastrea annularis,
located only 610 meters from the south leg of the
diffuser, has not decreased since the outfall became
operational. Instead, the community has shown a
continuous recovery from a bleaching event that affected
the region in 1987-88... .
* * **
The outfall is not implicated in this degradation, as seen
in that the corals growing near the outfall were stressed
in 1987 and have since recovered while the outfall has
been operational. Sedimentation deposition patterns
continue to reflect the dominance of the Rio Grande de
Afiasco in determining the future environment and biota
for the Bahia de Afiasco. Water quality sampling verify
that the outfall is effectively dispersing contaminants in
the effluent within the prescribed mixing zone.
(App. A66; A72 (emphasis added).)
Rather than recognizing the USGS Report’s formal
conclusion, the Board chose to focus on one subordinate study
in Appendix 3 of the USGS Report, which had made
inconclusive findings regarding the outfall’s effects on the coral
reefs, and whose author, Dr. Carlos Goenaga, actually co-
authored and approved the formal, final USGS conclusions.
This subordinate study provided the scientific basis for the
Board’s decision, measured against its new, Rule 56 Summary
Judgment standard.
= =
After the Board issued its Order, PRASA moved the Board
for Reconsideration and a Stay Pending Reconsideration on
September 7, 1993, which the Board also denied on
December 17, 1993. (App. A26.) PRASA filed a Petition for
Review with the United States Court of Appeals for the First
Circuit.
The First Circuit denied PRASA’s Petition in an Opinion
issued August 31, 1994. (App. Al.) The First Circuit justified
the Board’s adoption of the Rule 56 summary judgment standard
with the rationale that the "material issues of fact" standard
established by 40 C.F.R. § 124.75 "necessarily contemplate[s]"
application of Rule 56’s "genuineness" standard for the purposes
of granting an evidentiary hearing. (App. A9.) The Court did
not discuss the "plain meaning" rule or the correlative fact that
EPA has used deliberately the “genuine issue of material fact"
standard in other regulatory settings. The First Circuit also
stated that three previous NPDES decisions by the Board had
used the word "genuine," although it conceded that the Board
had never before "in haec verba" articulated the application of
Rule 56 or its jurisprudence in any of those decisions. (App.
A19.) In its rationale for the Board’s actions, the First Circuit
characterized the procedures for obtaining an evidentiary hearing
as "an adjudicatory framework that included an administrative
summary judgment procedure . . ." and recounted in detail the
general history of administrative summary judgment proceedings
and analogies to the Federal Rules of Civil Procedure in
administrative settings. (App. A9-10.)
In sum, the First Circuit excused the Board’s failure to give
notice of the new summary judgment standard for 40 C.F.R.
§ 124.75, despite its recognition that EPA’s choice of words in
40 C.F.R. § 124.75 has no legal significance, its
acknowledgement that the Rule 56 standard had never before
been articulated explicitly, and its disregard for the Board’s
failure to offer any formal notice or a meaningful explanation of
its reasons for the change.
ee.
The First Circuit also adopted the Board’s finding that
PRASA had failed to present any evidence regarding the "future
impacts” requirement of 40 C.F.R. § 125.61(f)(3), analogizing
the case to this Court’s decision in Weinberger v. Hynson,
Westcott & Dunning, Inc., 412 U.S. 609, 621 (1973). (App.
A20.) In doing so, the First Circuit did not discuss the findings
and formal conclusions of the USGS Report, the scientific
imprecision and absence of scientific guidance in
Section 125.61(f)(3), or PRASA’s effort to suggest that the
Report’s methodology and facts could provide an analytical
means for future prediction.
REASONS FOR GRANTING THE WRIT
1. In Allowing The Use Of The Summary Judgment
Standard Of Rule 56 Of The Federal Rules Of Civil
Procedure As The Burden Of Proof For Granting An
Evidentiary Hearing, The First Circuit Has Permitted
The EPA To Depart Without Proper Notice Or Any
Explanation Of Its Legal Reasons From The
Evidentiary Standard Explicitly Articulated In Its
Regulation And Used In Its Precedents For Many
Years, Acting Contrary To The Decisions Of This
Court, And The Decisions Of The Courts Of Appeals
For The First, Fourth, Fifth And District Of
Columbia Circuits.
For over fifteen years, EPA has maintained a legal standard
for evidentiary hearing requests on Section 301(h) decisions
which requires the presentation of "material issues of fact
relevant to the issuance of the permit." 40 C.F.R.
§ 124.75(a)(1) (1994). This standard has been in place since
1978, when EPA abandoned the previous standard for granting
such a hearing, which required a demonstration of “genuine and
substantial issues of fact relevant to the questions of whether a
permit should be issued, denied or modified." 41 Fed. Reg.
52308, 52311 (1976); see 43 Fed. Reg. 37078, 37120 (1978).
- 18 -
Even at that time, EPA did not characterize its then more
stringent standard as a "summary judgment” procedure or the
equivalent of Rule 56 of the Federal Rules of Civil Procedure,
despite the apparent similarity in the words used. EPA stated
that it was abandoning this previous standard and eliminating the
words "genuine and substantial" because "the existing
regulations governing adjudicatory hearings provide inadequate
assistance or direction to presiding officers or to the parties."
43 Fed. Reg. at 37078. EPA has not changed the words in the
legal standard since that time. It certainly knows how to do
so.¥
The First Circuit ignored the principle that the meaning of a
regulation first must be sought in the language in which it is
framed. 2A Norman J. Singer, Sutherland, Statutory
Construction § 46.01 (Sth ed. 1992); see also Caminetti v.
United States, 242 U.S. 470, 485-86 (1917); United States v.
Behnezhad, 907 F.2d 896, 898 (9th Cir. 1990). The plain
language of the regulation demonstrates that EPA used the
words "material issues of fact," not the words “genuine issue of
material fact," to describe the burden for obtaining an
evidentiary hearing. 40 C.F.R. § 124.75(a)(1). The maxim of
expresio unius est exclusio alterius mandates that ali omissions
from a regulation should be understood as an intentional
exclusion by the drafter. Russello v. United States, 464 U.S.
16, 23 (1983); Navarro-Ayala v. Hernandez-Colon, 951 F.2d
1325, 1340-1343 (1st Cir. 1991); Natural Resources Defense
Council, Inc. v. EPA, 822 F.2d 104, 131 (D.C. Cir. 1987).
EPA has had ample opportunity to include the Rule 56 summary
2» EPA regulations do contain a procedure, identified as “summary
determination,” which uses the term “genuine issue of material fact.” 40 C.F.R.
§ 124.84 (1994). EPA aiso has used deliberately these same terms in other
regulations. See, e.g., Noise Control Act, 40 C.F.R. § 209.25 (1993) ("No
genuine issue of material fact exists and a party is entitled to judgment as a
matter of law"); Federal Insecticide, Fungicide and Rodencide Act, 40 C.F.R.
§ 164.91 (1993).
EE ————
-19-
judgment standard in its regulations. The First Circuit should
have recognized the significance of EPA’s decision not to do so,
especially where, as here, EPA Aas done so in other regulations.
Moreover, in many years of decisionmaking, EPA’s
precedents have applied the "material issues of fact" standard of
Section 124.75(a)(1). See In re City & County of San
Francisco, NPDES Appeal No. 91-18, 1993 TSCA LEXIS 41,
*63 (March 24, 1993); In re City of Jacksonville, District II
Wastewater Treatment Plant, NPDES Appeal No. 91-19, slip
op. at 11 (Envtl. App. Bd. August 4, 1992); In re Great Lakes
Chemical Corp., NPDES Appeal No. 84-8, 1985 NPDES
LEXIS 9, **15, 16 (September 3, 1985); In re 446 Alaska
Placer Mines, NPDES Appeal No. 84-13, 1985 NPDES LEXIS
8, *3 (April 2, 1985); In re NPDES Permit for: Public Serv.
Co. of Oklahoma (Black Fox Station), NPDES Appeal No. 78-
13, 1980 NPDES LEXIS 8, *7 (June 27, 1980); In re NPDES
Permits for Shell Oil Co., NPDES Appeal No. 78-8, 1979
NPDES LEXIS 4, *3 (February 27, 1979). In none of these
decisions has EPA ever articulated or applied the summary
judgment standard as set forth in Rule 56 or any comparable,
similarly strict evidentiary standard. In fact, this Court also
recognized that an evidentiary hearing may be attained in an
NPDES proceeding where an "interested party raises a material
issue of fact . . . [by] meet[ing] a threshold burden of tendering
evidence suggesting the need for a hearing." Costle v. Pacific
Legal Found., 445 U.S. 198, 214 (1980) (citing Weinberger v.
Hynson, Westcott & Dunning, Inc., 412 U.S. at 620-621). This
is hardly an exposition of the Rule 56 standard or its
jurisprudence.
Rather than acknowledging that the Board had made this
significant departure from its regulations and its precedents, the
First Circuit chose to explain the merits of “summary
judgments" (App. A12), although PRASA did not question those
merits, and to provide a rationale for the Board’s actions and its
failure to give notice of those actions:
SRC
« *.
Though the Board had never before invoked Rule 56 in
haec verba as a guide to section 124.75, any reasonable
litigant familiar with administrative practice in general
and with EPA’s precedents in particular should have
anticipated that it would be required to present evidence
adequate to overcome the functional equivalent of a Rule
56 motion.
(App. Al9.) There is neither textual nor precedential support
for this rationale and, as Chief Judge Breyer stated in Shaw’s
Supermarkets, Inc. v. NLRB, 884 F.2d 34, 41 (1st Cir. 1989),
"[uJjnless an agency either follows or consciously changes the
tules developed in its precedents, those subject to the agency’s
authority cannot use its precedents as a guide for their conduct;
nor will that precedent check arbitrary agency action." To meet
such a duty, EPA must provide a more "consistent judgment" to
support its departure than a mere statement that its own explicit
standard is "very similar" (App. A48) to a standard it did not
write into its regulation.
The First Circuit’s opinion also conflicts with decisions of
this Court which hold that administrative agencies must explain
their reasons for departing from previously recognized policies
and standards. Secretary of Agric. of United States v. United
States, 347 U.S. 645, 653-54 (1954). As part of its obligation
to behave with "regularity," Bowen v. American Hosp. Ass'n,
476 U.S. 610, 627 (1986), an administrative agency must
“explain[ ] its departure from prior norms and . . . sufficiently
spell{ ] out the legal basis of its decision . . . . with the
simplicity and clearness through which a halting impression
ripens into reasonable certitude.’" Secretary of Agric., 347 U.S.
at 653-54 (quoting United States v. Chicago, M., St. P. & P. R.
Co., 294 U.S. 499, 510-11 (1935)); see also Atchison, Topeka
& Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 808
(1973).
+
The District of Columbia Circuit has posited the same rule,
in conflict with the First Circuit’s decision. In Baltimore &
Annapolis R.R. v. Washington Metro. Area Transit Comm'n,
642 F.2d 1365 (D.C. Cir. 1980), the court stated that "when an
agency decides to reverse its course, it must provide an opinion
or analysis indicating that the standard is being changed and not
ignored, and assuring that it is faithful and not indifferent to the
rule of law." 642 F.2d at 1370 (quoting Greyhound Corp. v.
ICC, 551 F.2d 414, 416 (D.C. Cir. 1977) (quoting Columbia
Broadcasting Systems, Inc. v. FCC, 454 F.2d 1018, 1026 (D.C.
Cir. 1971))); see also United States v. Paddack, 825 F.2d 504,
512 (D.C. Cir. 1987) (agency not accorded deference in sudden
reversal of interpretation of its regulations); Hatch v. FERC,
654 F.2d 825, 837 (D.C. Cir. 1981); Greater Boston Television
Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970), cert.
denied 403 U.S. 923 (1971).
In Hatch, the District of Columbia Circuit confronted a
situation similar to that in this case, in which a federal statute
required the Federal Energy Regulatory Commission ("FERC")
in rendering a decision, to find affirmatively that "neither public
nor private interests will be adversely affected," 654 F.2d at 830
(quoting 16 U.S.C. § 825d(b)). FERC imposed a new legal
standard, in which the petitioner had to demonstrate a "clear,
overriding benefit" to meet the requirement. Jd. at 834 n.19.
FERC explained that its prior precedents had implied, although
not specifically articulated, this new standard. Id. The Court
rejected this explanation:
Without any explicit recognition by the Commission that
the standard has been changed, or any attempt to
forthrightly distinguish or outrightly reject apparently
inconsistent precedent, we are left with no guideposts
for determining the consistency of administrative action
in similar cases, or for accurately predicting future
action by the Commission. The failure to admit or
explain such a basic change in the interpretation of a
4.
statutory standard to be anplied to conduct of the public
undermines the integrity of the administrative process.
Id. at 834-35 (citations omitted).
The Fourth Circuit has followed this principle, Baltimore
Gas & Elec. Co. v. Heintz, 760 F.2d 1408, 1418 (4th Cir.),
cert. denied, 474 U.S. 847 (1985), as has the Fifth Circuit,
United Gas Pipe Line Co. v. FERC, 597 F.2d 581, 586-88 (Sth
Cir. 1979), cert. denied, 445 U.S. 916 (1980); and despite its
holding in PRASA’s case, the First Circuit also has required
administrative agencies to give notice, at least in the form of a
reasoned explanation, for departures from prior precedents or
standards. In Shaw’s Supermarkets, 884 F.2d at 36, Chief
Judge Breyer stated that the NLRB could not change its
interpretation from previous precedents regarding what conduct
constituted a “threat of reprisal” under the National Labor
Relations Act “without explicitly recognizing that it is doing so
and explaining why."
a. The First Circuit Exceeded Its Judicial Role
By Providing A Rationale For The Agency’s
Arbitrary Behavior Where The Agency Provided
None.
Effective judicial review does not oblige a court to "stand
aside and rubber stamp" administrative agency decisions. NLRB
v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) (quoting
NLRB v. Brown, 380 U.S. 278, 291 (1965)). The courts may
not abandon their role of ensuring that agency actions are both
reasoned and reasonable.
The First Circuit exceeded the limited scope of its role of
judicial review by substituting its own rationale, where the
Board provided none, for the Board’s departure from the
established, explicit legal standard articulated in EPA’s
regulations and precedents. The First Circuit ignored the fact
Een
“ oe
that "[t]here are no findings and no analysis here to justify the
choice made, no indication of the basis on which the [Board]
exercised its expert discretion." National R.R. Passenger Corp.
v. Boston & Maine Corp.,___ U.S. __, 112 S. Ct. 1394, 1407
(1992) (White, J., Blackmun, J. and Thomas, J., dissenting)
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S.
156, 167 (1962)).
The First Circuit’s strained explanation compounded further
the Board’s lack of reascn. The First Circuit provided its own
supposition of why the Board equated the two legal standards.
(App. Al7.) However, this Court has stated that a court may
not review a rationale which an agency has failed to provide;
"an agency’s action must be upheld, if at all, on the basis
articulated by the agency itself." Motor Vehicle Mfrs. Ass'n of
the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 50 (1983). "’For the courts to substitute their or
counsel’s discretion for that of the [Board] is incompatible with
the orderly functioning of the process of judicial review... .’
[W]e should not strain the Chevron principle by deferring to
what we imagine an agency had in mind when it applied a
statute." National R.R. Passenger Corp., 112 S. Ct. at 1407
(quoting Burlington Truck Lines, 371 U.S. at 169) (White, J.,
Blackmun, J. and Thomas, J., dissenting).
b. In Departing From The Established
Evidentiary Standard Without Notice And
Explanation Of Its Legal Reasons, The EPA And
The First Circuit Have Altered The Burdens,
Responsibilities And Order Of Presentations On
PRASA.
The burdensome effect on PRASA of the Board’s new Rule
56 summary judgment standard, as affirmed by the First Circuit,
is harsh and fundamentally unfair in the context of a request for
an evidentiary hearing. Notice and Opportunity to meet a new
regulatory standard is vital to the constitutional right to due
-
process. Mathews v. Eldridge, 424 U.S. 319, 333-34 (1976);
Mitchell v. W. T. Grant Co., 416 U.S. 600, 611 & n.10 (1974);
Joint Anti-Fascist Refugee Comm’n v. McGrath, 341 U.S. 123,
165-66 (1951) (Frankfurter, J., concurring); Morgan v. United
States, 304 U.S. 1, 18-19 (1938); West Ohio Gas Co. v. Public
Utils. Comm’n of Ohio, 294 U.S. 63, 70-71 (1935).
The difference between a “material issue of fact" and a
"genuine issue of material fact" is significant. "A factual
dispute is material where, under the governing law, it might
affect the outcome of the proceeding." (App. A49.) The Board
found that PRASA had raised such a material fact. (App. A49.)
This finding should have yielded an evidentiary hearing.
The summary judgment standard requiring a "genuine"
issue, on the other hand, assumes that the parties have had an
opportunity to submit, weigh and challenge the credibility of
evidence. Rule 56(c) of the Federal Rules of Civil Procedure
makes that clear. See, e.g, Smolen v. Deloitte, Haskins & Sells,
921 F.2d 959, 963 (9th Cir. 1990); Leonard v. Dixie Well Serv.
& Supply, Inc. , 828 F.2d 291, 293-94 (Sth Cir. 1987);
Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 84 (3d Cir.
1987). The parties also routinely engage in discovery under
Rule 56. See Parrish v. Board of Comm’rs, 533 F.2d 942, 946-
47 (Sth Cir. 1976). None of these procedures occurred here.
Even in federal court litigation, to defeat a Rule 56 motion for
summary judgment and proceed to trial, a non-moving party
would have only the burden to raise a "genuine issue of material
fact," not to prove its case, and would do so with all inferences
in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Greene v. Rash, Curtis & Assocs., 89 F.R.D. 314,
317 (E.D. Tenn. 1980). However, merely to obtain an
evidentiary hearing from EPA, the new standard set forth in the
Board’s Order requires PRASA to transcend this burden and to
prove its case "with a preponderance of the evidence," as would
be required to win on the merits against EPA. (App. A51.)
NN Sea reiki pe iodiens ON MANS TRS Ui Rien ela hash a Bite Ola Nh a7 ee 0b 58
2.
In the absence of proper notice and reasoned explanation,
such a summarily adopted new standard demonstrates that
administrative agencies tread on dangerous ground when they
seek to analogize "words" in an administrative rule to alluring,
apparently identical "words" in the Federal Rules of Civil
Procedure, which are designed and intended to effect a different
purpose. This admonition is particularly warranted when, as
here, the process — a request for an evidentiary hearing -—
affected by the new rule so dramatically affects PRASA’s due
process rights and disrupts the legal balance among burdens,
responsibilities, and orders of presentations. In re Detroit
Plastic Molding Co., TSCA Appeal No. 87-7, 1990 TSCA
LEXIS 2, ** 8-9 (March 1, 1990); In re Wego Chemical &
Mineral Corp., TSCA Appeal No. 92-4, 1993 TSCA LEXIS 71,
** 26-28 (February 24, 1993); see, e.g., St. Mary’s Honor Ctr.
v. Hicks, —- U.'S.__, 113 S. Ct. 2742, 2751 (1993); Costle
v. Pacific Legal Foundation, 445 U.S. at 214.
2. The First Circuit Failed To Acknowledge and To
Accord Proper Deference To The Scientific Expertise
And Findings Of Fact Of The United States
Geological Survey.
An administrative agency deserves deference "when its
conclusions are rationally based on articulated facts," NLRB v.
Yeshiva Univ., 444 U.S. 672, 691 (1980). In order to
determine the degree of deference to be given the Board, the
First Circuit should have undertaken an exacting examination of
the facts articulated by PRASA and the scientific findings in the
USGS Report. It did not do so.
The First Circuit’s opinion did not even mention the
scientific findings of the USGS Report, nor did it mention the
degree of deference merited by the USGS as an administrative
agency with a Congressionally-recognized scientific expertise.
The USGS was created in 1879, 43 U.S.C. § 31 (1988). Since
that time, it has played an important role in providing scientific
- 26
expertise for state and federal government agencies and the
judiciary. See, e.g., Utah v. United States, 780 F.2d 1515,
1521 (10th Cir. 1985), rev’d on other grounds, 482 U.S. 193
(1987). The USGS has special expertise with regard to water
resources, and administers the Water Resources Act of 1984,
Pub. L. No. 98-242, 98 Stat. 97, which applies expressly to
Puerto Rico. See 30 C.F.R. § 401 (1993). In addition, the
USGS exercises a statutory responsibility over water resources
in Puerto Rico. See 43 U.S.C. § 49 (1988).
The USGS was the first and only federai agency to
undertake an empirical study of the outfall site and the outfall’s
effects on the surrounding marine environment. EPA did not
perform its own empirical studies. The USGS was, therefore,
the only federal agency to use its scientific expertise in this case
and was entitled to considerable deference with regard to factual
questions involving its findings and conclusions. Baltimore Gas
& Elec. Co. v. Natural Resources Defense Council, Inc., 462
U.S. 87, 103 (1983); Federal Power Comm’n v. Florida Power
& Light Co., 404 U.S. 453, 463 (1972). The USGS undertook
the primary factfinding responsibility for ascertaining whether
PRASA met the requirements of Section 301(h)(2) and
Section 125.61(f). As Justice O’Connor stated in Baltimore
Gas and Electric Co., "[w]hen examining this kind of scientific
determination, as opposed to simple findings of fact, a reviewing
court must generally be at its most deferential." 462 U.S. at
103. Accordingly, the actual scientific findings and conclusions
of the USGS, not those findings as filtered through EPA’s
adjudicative lens, deserved deference.
The USGS Report which PRASA presented to EPA Region
II resulted from a series of studies performed on the corals and
marine life living in the area around the Mayaguez outfall. The
USGS Report’s goal was, inter alia, to determine the effects of
the outfall on the indigenous marine population, i.e., to
determine whether the outfall met the requirements of
Section 301(h)(2) and 40 C.F.R. § 125.61(f). Although the
.-.
USGS Report reached the conclusion that PRASA had satisfied
Section 301(h)(2)’s requirement that the outfall did not interfere
with a balanced indigenous marine population, both the Board
and the First Circuit ignored this conclusion.
Rather than even mention the facts found by the USGS in its
Report, the First Circuit focused on the Board’s conclusions
regarding PRASA’s presentation of evidence to meet the three
prongs of 40 C.F.R. § 125.61(f). The Board had found that
PRASA had failed to present any evidence on
Section 125.61(f)(3); and "therefore failed to raise a genuine
factual issue warranting an evidentiary hearing." (App. A61.)
Relying not on the USGS findings, or on their basis for analytic
prediction, or on the absence of EPA guidance, or PRASA’s
actual submission, the Board dismissed as “uncertain” the effects
of the outfall’s discharge based on the Appendix 3 subordinate
study. (App. A60.) :
The First Circuit had a judicial responsibility to accord the
USGS empirical findings the respect due them as findings
resulting from the scientific expertise of a federal administrative
agency. The First Circuit failed to fulfill this duty.
3. The First Circuit’s Decision Conflicts With
Weinberger v. Hynson, Westcott & Dunning, Inc., By
Denying An Evidentiary Hearing Based On EPA’s
Acknowledged Scientifically Imprecise And
Speculative Regulations.
The First Circuit’s denial of an evidentiary hearing based on
its finding that PRASA had failed to present evidence on
40 C.F.R. § 125.61(f)(3) directly contradicts the Supreme
Court’s admonition in Weinberger v. Hynson, Westcott, &
Dunning, Inc., 412 U.S. 609, 621 n.17 (1972). In Hynson, the
Court permitted the Food and Drug Administration ("FDA") to
use an explicitly defined summary judgment procedure, id. at
622, and to deny an adjudicative hearing when an applicant for
.%.
new drug approval failed to tender any evidence which facially
met the regulatory standards for a hearing. The Court
cautioned, however, that such a summary dismissal procedure
based on a study’s apparent failure to present certain evidence
applies, of course, only to those regulations that are
precise .... [Some] qualitative standards . . . do not
lend themselves to clear-cut definition, and it may not
be possible to tell from the face of a study whether the
standards have been met. Thus, it may not be possible
to deny a hearing on the ground that the study did not
comply with this regulation.
Id. at 621 n.17.
The FDA Commissioner anticipated that this distinction
between precise and imprecise regulations would mean, in
practice, that if the Commissioner had to use his judgment to
determine whether facts presented in a study supported a new
drug application, he could not deny a evidentiary hearing based
on that judgment. If, however, the study presented "a total
failure . . . even to attempt to comply” with the standards and
presented no facts about which the Commissioner could even
make a judgment, he could deny a hearing. Smithkline Corp. v.
Food & Drug Admin. , 587 F.2d 1107, 1117 n.22 (D.C. Cir.
1978) (citing 39 Fed. Reg. 9750, 9757 (1974)).
EPA admitted that 40 C.F.R. § 125.61(f)(3) was imprecise
when it promulgated the final rule, even advising the public that
"EPA is unable to provide a specific guidance or suggested
analytical procedures” by which to meet Section 125.61(f)(3)’s
requirements, because of the extreme difficulty in demonstrating
"a predictive analysis of biological responses to future
pollution... ." 44 Fed. Reg. at 34806. EPA’s inability even
to suggest helpful procedures or factual showings by which
applicants could meet Section 125.61(f)(3) demonstrates that this
regulation, like the imprecise regulations anticipated in Hynson,
-*.
relies exclusively on EPA’s judgment for determining whether
an applicant has met the regulatory standards.
Before Region II and the Board, PRASA argued, as a basis
for its request for a hearing, that the USGS Report and other
previous scientific studies presented evidence that met _
Section 125.61(f)(3)’s requirement. PRASA stated to Region II
and the Board that based on such scientific findings, "[t]he
discharge at the Mayaguez RWWTP would not . . . retard the
recovery of the marine biota if the level of human perturbation
from sources of sediment in the watershed decreases." (App.
A76); see (App. A82-85.) Moreover, as PRASA informed the
First Circuit in its Petition For Review, the USGS Report
- - - Concluded that the Mayaguez discharge had not
retarded biota recovery in three years of actual
operation, even with sustained — let alone decreased —
levels in other sources of pollution . . . . In its historical
and empirical methodology, the USGS provided a
scientific basis for the reasoned prediction necessary for
(f)(3). It found, as a practical matter, ’causal
relationships by systematic experiment... .” A proper
scientific review of the USGS Report — not conducted
by EPA — demonstrates that PRASA has complied with
Section 125.61(f)(3) or, at the very least, has established
a dispute of material, relevant facts warranting an
evidentiary hearing.
PRASA’s Brief in Support of Petition for Review to the First
Circuit at 40 (March 16, 1994). Both the Board and the First
Circuit foreclosed any reasonable burden on EPA to consider
such evidence, contrary to the admonition in Hynson that an
agency should not deny a hearing when evidence is presented to
meet imprecise regulatory requirements that deliberately lack
scientific guidance.
~ 20.
CONCLUSION
The Petition for a writ of certiorari should be granted so
that the Court may require the Board to employ consistent legal
and factfinding standards in EPA’s grants of evidentiary
hearings and to provide notice when it chooses to depart from
those standards. Additionally, the writ should be granted to
allow the Court to re-establish the proposition that an
administrative agency must provide parties with a reasoned
articulation of the decision’s factual and legal basis when it
undertakes such a departure. The Petition also should be
granted because the First Circuit misconceived its powers of
judicial review by providing a rationale for a Board decision
which lacked an explanation, and by ignoring significant
evidence presented by the USGS, which deserved deference for
its empirical findings, especially in light of EPA’s acknowledged
scientific imprecision in its regulations and in the absence of
EPA’s own empirical studies.
Respectfully submitted,
Neil T. Proto
Counsel of Record
901 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 371-6000
November 28, 1994 Counsel for Petitioner
Al
APPENDIX A
No. 93-2340
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PUERTO RICO AQUEDUCT AND
SEWER AUTHORITY,
Petitioner,
V.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
35 F.3d 600
August 31, 1994
PETITION FOR REVIEW OF AN ORDER OF
THE ENVIRONMENTAL APPEALS BOARD
Before Selya and Cyr, Circuit Judges, and Pettine,
* Senior District Judge.
* Of the District of Rhode Island, sitting by designation.
Neil T. Proto, with whom John B. Britton, Lisa K. Hsiao,
Verner, Liipfert, Bernhard, McPherson & Hand,
Chartered, Edgar Rodriguez-Mendez, and Jorge Marrero-
Narvaez were on brief, for petitioner.
A2
+
Michael J. Zevenbergen, Attorney, U.S. Dep’t of Justice
Environmental Defense Section, with whom Lois J.
Schiffer, Acting Assistant Attorney General, Stephen J.
Sweeney (Office of General Counsel, EPA), and Janice
Whitney (Office of Regional Counsel, EPA Region II),
were on brief, for respondent.
SELYA, Circuit Judge. The United States
Environmental Protection Agency (EPA), respondent
before us, refused to hold an evidentiary hearing regarding
its determination that a facility in Mayaguez owned by
petitioner, Puerto Rico Aqueduct and Sewer Authority
(PRASA), must fully meet the Clean Water Act’s
secondary treatment requirements for publicly owned
treatment works (POTWs). The gist of EPA’s decision
was straightforward: having previously established
secondary treatment requirements because PRASA’s
POTW emitted pollutants into stressed waters, it
determined that PRASA had failed to proffer any legally
cognizable basis for modifying the requirements.
Petitioner now seeks judicial review of this
determination. Its flagship objection demands that we
place in bold relief the concept of administrative summary
judgment. Petitioner’s less touted objections implicate the
agency’s "stressed waters" standards.” Descrying no
flaw in EPA’s application of either its procedural or
substantive regulations, we affirm.
1’ “Stressed waters” are "those receiving environments in which an
applicant can demonstrate to the satisfaction of the Administrator, that
the absence of a balanced, indigenous population is caused solely by
human perturbations other than the applicant’s modified discharge."
40 C.F.R. § 125.58(t) (1993).
A3
I. STATUTORY AND REGULATORY FRAMEWORK
Under the Clean Water Act, no pollutant may be
emitted into this nation’s waters except in compliance with
a National Pollution Discharge Elimination System
(NPDES) permit. See 33 U.S.C. § 1311(a) (1988).
Ordinarily, the NPDES permit issued to a POTW includes
certain technology-based standards known as secondary
treatment requirements. See id. § 1311(b)(1)(B). A
POTW can obtain relief from these requirements by
meeting nine separate criteria. These criteria are limned in
33 U.S.C. § 1311(h). They require the applicant to make
various demonstrations regarding matters such as: the
effects of the discharge on other sources and on marine
life; standards and procedures for monitoring the
discharge; and methods of ensuring control over the
sources introducing waste into the POTW. Of this ennead,
only the second criterion, embodied in section 1311(h)(2),
is relevant to this appeal.
To satisfy section 1311(h)(2), a POTW must show
that the discharge of pollutants in accordance with
such modified requirements will not interfere,
alone or in combination with pollutants from other
¥ While EPA’s initial decision may be read to rest in part on
PRASA’s failure to satisfy subsections 1311(h)(1) and (h)(9), as well
as (h)(2), the Environmental Appeals Board did not reach those issues,
see In re Mayaguez Regional Sewage Treatment Plant, NPDES Appeal
No. 92-93 (August 23, 1993), slip op. at 9 n.13. Since the initial
decision constitutes final agency action only when the Board denies
review or summarily affirms, see 40 C.F.R. § 124.91(f) (1993), not
where, as here, the Board writes a full opinion, we decline EPA’s
invitation that we decide the case under either (h)(1) or (h)(9).
A4
sources, with the attainment or maintenance of
that water quality which assures protection of
public water supplies and the protection and
propagation of a balanced, indigenous population
of shellfish, fish, and wildlife, and allows
recreational activities, in and on the water... .
33 U.S.C. § 1311(h)(2) (1988). The information
necessary for a section 1311(h)(2) demonstration is
described by the implementing regulation, under which an
applicant who cannot meet the requirements of 40 C.F.R.
§ 125.61(a)-(e) due to "human perturbations" other than its
modified discharge must meet the stressed waters
requirements of 40 C.F.R. § 125.61(f). Under these
requirements, the applicant must demonstrate that its
discharge will not:
(1) contribute to, increase, or perpetuate such
stressed conditions;
(2) contribute to further degradation of the biota
or water quality if the level of human perturbation
from other sources increases; and
(3) retard the recovery of the biota or water
quality if the level of human perturbation from
other sources decreases.
40 C.F.R. § 125.61(f) (1993). For ease of
comprehension, we sometimes will refer to the (f)(1)
showing as the "current impacts" showing and the (f)(3)
showing as the "future impacts" showing. Although the
(f)(2) showing would seem to be intimately related to the
1 ne RE lh AR L065 oh oad
EA AANA! cor,
AS
(f)(3) showing, it was not discussed in the proceedings
below and, therefore, is not a matter of current concern.
Unlike typical NPDES permit proceedings, EPA
makes a tentative decision to grant or deny section 1311(h)
modifications prior to Proposing a permit. See 40 C.F.R.
§ 125.59(d) (1993). A POTW that has submitted a timely
application for such modification may revise it once as of
right. See id. § 125.59(d)(1). EPA also may authorize or
request the submission of additional information. See id.
§ 125.59(f)(1).
After issuance of a tentative decision, followed by
public notice and opportunity for written comment, EPA
makes a final determination in regard to the proposed
action. See 40 C.F.R. § 124.15 (1993). That decision
becomes the final permit, effective in thirty days, unless it
is administratively appealed. See id. § 124.15(b). If an
appeal is taken, a party may request an evidentiary hearing
to contest the resolution of any question raised in the
earlier proceedings. See id. § 124.74(a). The request
must specifically identify the legal and factual issues and
their relevance to the permit decision. Jd. § 124.75(b)(1).
EPA’s Regional Administrator then grants or denies the
request. Id. § 124.75(a)(1).
If a request for an evidentiary hearing is denied, the
denial becomes final agency action within thirty days
unless a protest is filed with the Environmental Appeals
Board (the Board). See id. §§ 124.60(c)(5), 124.91. In
turn, an order by the Board abjuring review renders final
the Regional Administrator’ s previous decision. See id.
§ 124.91(f)(1).
A6é
II. PROCEDURAL BACKGROUND
This case aptly illustrates how the regulatory scheme
works. PRASA initially sought a section 1311(h)
modification for its Mayaguez sewage facility by
application dated September 13, 1979. EPA, hampered by
delays in obtaining input from local environmental
officials, did not issue a tentative denial of the request until
February 6, 1984. One year later, after PRASA presented
a revised application, EPA issued another tentative denial.
On December 13, 1991, following notice, comment, and a
two-day public hearing, EPA dashed PRASA’s hopes by
issuing a final denial of its request for modification.
Hope, of course, often springs eternal, see Alexander
Pope, An Essay on Man, Epistle 1 (1734), and PRASA’s
hopes of obtaining a modification were renewed in 1992
by a United States Geological Survey (USGS) report that
contained some conclusions helpful to PRASA’s cause.
PRASA commenced its administrative appeal of EPA’s
final denial by submitting 2 request for an evidentiary
hearing accompanied by the draft USGS study. On July
23, 1992, the USGS report notwithstanding, EPA Region
II rejected PRASA’s request for an evidentiary hearing.
The Board affirmed. See In re Mayaguez Regional Sewage
Treatment Plant, NPDES Appeal No. 92-93 (August 23,
1993) (Board Op.). PRASA immediately invoked 33
U.S.C. § 1369(b) and petitioned for judicial review.
In a passage that frames the central battleground in
this venue, the Board self-consciously construed the
procedural standard governing requests for evidentiary
hearings, 40 C.F.R. § 124.75, to necessitate ihe presence
of a "genuine issue of material fact" as a prerequisite to
NT
A7
avoiding summary disposition of requests for review,
Board Op. at 11. The Board characterized this
requirement as "very similar to the requirement set forth in
Rule 56 of the Federal Rules of Civil Procedure." Id.: see
also id. at 13 (explaining that the Board’s Standard and the
Rule 56 standard are "for our purposes virtually
identical"). Warming to the task, the Board lauded case
law dealing with Rule 56 as offering “useful guidance" in
connection with section 124.75, id. at 11, and proclaimed
that the Ruie 56 standard "should be applied in the context
of evidentiary hearing requests as well," id. at 13.
Scrutinizing the record through this prism, the Board
held that PRASA did not merit a hearing because it had
not presented a genuine issue of material fact as to either
the current impacts showing required under 40 C.F.R.
§ 125.61(f)(1) or the future impacts showing required
under 40 C.F.R. § 125.61(f)(3). Put another way, the
Board thought that no evidentiary hearing should be
convened because PRASA had not adduced sufficient proof
from which a reasonable decisionmaker could find, by a
preponderance of the evidence,’ either that the Mayaguez
POTW was not currently contributing to the stressed
condition of the surrounding waters, or that the facility
would not in the future inhibit recovery of the surrounding
stressed waters in the event that other stresses relented.
* The Board routinely applies the preponderance standard in permit
determinations. See Board Op. at 13 n.18. This is of some
consequence for present purposes because Rule 56 frequently
implicates the substantive burdens of proof that would apply if the
Particular case went forward uninterrupted. See Villanueva v.
Wellesley Coll., 930 F.2d 124, 129 (Ist Cir.), cert. denied, 116 L. Ed.
2d 143, 112 S. Ct. 181 (1991).
A8
See id. at 15-18. This ruling was tantamount to the entry
of summary judgment, effectively terminating PRASA’s
administrative appeal.
il. STANDARD OF REVIEW
We are mindful that we operate at the busy
intersection of three deferential standards of review. In
the first place, agency decisions made by informal
adjudication may be set aside only if they are "arbitrary,
Capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A) (1988); see
also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct.
2856 (1983); Sierra Club v. Marsh, 976 F.2d 763, 769
(1st Cir. 1992). In the second place, an agency deserves
an extra measure of deference with regard to factual
questions involving scientific matters in its area of
expertise. See, e.g., Baltimore Gas & Elec. Co. v.
NRDC, 462 U.S. 87, 103, 76 L. Ed. 2d 437, 103 S. Ct.
2246 (1983); FPC v. Florida Power & Light Co., 404
U.S. 453, 463, 30 L. Ed. 2d 600, 92 S. Ct. 637 (1972);
Town of Brookline v. Gorsuch, 667 F.2d 215, 219-20 (1st
Cir. 1981). Mixed questions of law and fact, at least to
the extent that they are fact-dominated, fall under this
rubric. See Gorsuch, 667 F.2d at 220; cf. In re Howard,
996 F.2d 1320, 1327-28 (1st Cir. 1993) (recognizing that
appeals in the federal court system are usually arrayed
along a degree-of-deference continuum in which deference
increases in proportion to the factual component of the
determination). And, finally, the respect usually accorded
an agency’s interpretation of a statute it is charged to
execute, see Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837,
842-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), is
bene
A9
magnified when the agency interprets its own regulations,
5eé, €.8., Arkansas v. Oklahoma, 117 L. Ed. 2d 239, 112
S. Ct. 1046, 1059-60 (1992); Commonwealth of Mass.,
DPW v. Secretary of Agric., 984 F.2d 514, 524 (1st Cir.
1993) (citing cases).
IV. ADMINISTRATIVE SUMMARY JUDGMENT
In this court, PRASA hawks most vigorously a claim
of procedural error. This claim spotlights the Board’s
interpretation of EPA’s standard for dispensing (or
dispensing with) evidentiary hearings, especially its
conclusion that the text of the applicable regulation, 40
C.F.R. § 124.75(a)(1) (stipulating that, to warrant an
evidentiary hearing and deflect administrative summary
judgment, the non-moving party must establish the
existence of "material issues of fact relevant to the
issuance of the permit"), should be read as the functional
equivalent of Fed. R. Civ. P. 56(c) (which authorizes
summary judgment if there is "no genuine issue as to any
material fact," and thereby requires the non-moving party
to establish the existence of a genuinely disputed material
fact to forestall summary judgment). Section 124.75,
PRASA asserts, contains no " genuineness" requirement,
and, moreover, even if the Board had the authority to read
a "genuineness" requirement into the regulation, it could
not do so without giving advance notice. We find no merit
in these assertions.
The Structure of Administrative Summary Judgment
In erecting an adjudicatory framework that included an
administrative summary judgment procedure, EPA
necessarily contemplated that, to qualify for an evidentiary
A10
hearing, a party would have to present a genuine and
material dispute. Those tworequirements are inherent in
the very concept of administrative summary judgment.
Any other assumption borders on the chimerical: under
federal case law, a "material" fact is one that may affect
the outcome of the case, see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct.
2505 (1986); United States v. One Parcel of Real
Property, 960 F.2d 200, 204 (1st Cir. 1992); a "genuine"
fact dispute is one that a reasonable decisionmaker could
decide in favor of either party under the applicable
standard of proof, or in other words, one that is worthy of
being more fully adjudicated (trialworthy in the courts’
parlance; hearing-worthy in the agencies’ parlance).* See
Liberty Lobby, 477 U.S. at 248-49; One Parcel, 960 F.2d
at 204. To force an agency fully to adjudicate a dispute
that is patently frivolous, or that can be resolved in only
one way, or that can have no bearing on the disposition of
the case, would be mindless, and would suffocate the root
purpose for making available a summary procedure.
Indeed, to argue -- as does petitioner -- that a speculative
or purely theoretical dispute -- in other words, a non-
genuine dispute -- can derail summary judgment is sheer
persiflage.
We think that EPA’s regulations lawfully can be read
to incorporate this binary test, featuring genuineness and
materiality. What is more, we refuse to attach talismanic
significance to the absence of the stock phrase "genuine
issue of material fact." The reference found in 40 C.F.R.
+’ While these definitions developed in the milieu of Rule 56, they are
by no means limited to that milieu.
All
§ 124.75(a)(1) to "material" issues of "relevant" fact
achieves precisely the same end. In practice, courts and
agencies regularly use a variety of terms to describe the
two pillars of summary judgment.
We hasten to add that, despite this linguistic
equivalency, explicitly drawing a connection to Rule 56
accomplishes three things. First, it provides a common
vocabulary, easily understandable by litigants, lawyers,
and adjudicators. Second, it introduces into an agency’s
jurisprudence a ready-made ensemble of decisional
precedents associated with Rule 56, see, e. g., Garside v.
Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (holding
that at the summary judgment Stage the evidence must be
examined in the light most favorable to the nonmovant).
Third, it carries with it certain expectations, conditioned
by everyday experience in the federal courts, about the
kind and degree of evidence deemed necessary to create a
genuine dispute over a material fact. See, e.g., Liberty
Lobby, 477 U.S. at 249-50 (explaining that to withstand
summary judgment, evidence must be "significantly
probative"); Garside, 895 F.2d at 49-50 (discussing type
and kind of opinion evidence that may forestall summary
judgment).
Notwithstanding the obvious advantages of drawing a
parallel between the courts’ and the agencies’ versions of
summary judgment, petitioner contends that the Board
went too far too fast. In support, PRASA posits three
practice; (2) that administrative summary judgment does
not carry with it the baggage of Rule 56: and (3) that, in
all events, EPA took an impermissible shortcut and
Al2
embraced a Rule 56 standard precipitously, without
affording fair notice or an opportunity to respond. These
arguments lack force.
The Validity of Administrative Summary Judgment
The choice between summary judgment and full
adjudication -- in virtually any context -- reflects a
balancing of the value of efficiency against the values of
accuracy and fairness. Seen in that light, summary
judgment often makes especially good sense in an
administrative forum, for, given the volume of matters
coursing through an agency’s hallways, efficiency is
perhaps more central to an agency than to a court. See
Charles C. Ames & Steven C. McCracken, Framing
Regulatory Standards to Avoid Formal Adjudication: The
FDA As a Case Study, 64 Cal. L. Rev. 14, 34-35 (1976).
At the same time, summary judgment is less jarring in the
administrative context; after all, even under optimal
conditions, agencies do not afford parties full-dress jury
trials. Taking these factors into account, it is unsurprising
that most major agencies in the federal system have opted
to make available procedures for the summary disposition
of adjudicatory matters. See, e.g., 10 C.F.R. § 2.749
(1994) (NRC); 16 C.F.R. § 3.24 (1994) (FTC); 21 C.F.R.
§ 12.93 (1994) (FDA); 47 C.F.R. § 1.251 (1993) (FCC);
40 C.F.R. §§ 22.20, 124.75, 164.91 (1993) (EPA); 29
C.F.R. 102.35(h) (1993) (NLRB); 29 C.F.R. § 2200.2
(1993) (OSHA).*
An important exception is the SEC. See Rules of Practice,
Exchange Act Release No. 33,163 [1993 Transfer Binder] Fed. Sec.
L. Rep. (CCH) { 85,257, at 84,742 (Nov. 5, 1993) (rejecting Rule 56
(continued...)
$/
Al3
Administrative summary judgment is not only widely
accepted, but also intrinsically valid. An agency’s choice
of such a procedural device is deserving of deference
under "the very basic tenet of administrative [aw that
agencies should be free to fashion their own rules of
procedure." Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 544, 55 L. Ed. 24 460, 98 S. Ct.
1197 (1978). Applying this tenet, the Court has upheld an
assortment of summary procedures, some Closely
resembling Rule 56, in the face of claims that the
procedures are invalid because they deprive parties of their
"right" to a hearing before the agency. See Heckler v.
Campbell, 461 U.S. 458, 467, 76 L. Ed. 2d 66, 103 S.
Ct. 1952 (1983); National Indep. Coal Operators’ Ass'n v.
Kleppe, 423 U.S. 388, 398-99, 46 L. Ed. 2d 580, 96 S.
Ct. 809 (1976); FPC v. Texaco Inc., 377 U.S. 33, 39-44,
12 L. Ed. 2d 112, 84S. Ct. 1105 (1964); United States v.
Storer Broadcasting Co., 351 U.S. 192, 205, 100 L. Ed.
1081, 76 S. Ct. 763 ( 1956); see also Ames & McCracken,
supra, at 41 n.164 (listing cases to similar effect involving
different agencies). Most significantly for our purposes,
the Court has given its seal of approval to a highly
analogous summary procedure for denial of a hearing, see
Weinberger v. Hynson, Westcott & Dunning, Inc., 412
U.S. 609, 621, 37 L. Ed. 2d 207, 93 S. Ct. 2469 (1973)
(involving FDA’s procedure for administrative
judgment), and to an earlier version of the very procedure
that we review today, see Costle y. Pacific Legal Found.,
3/ (...continued)
model on grounds that SEC Practice does not permit discovery or
prehearing affidavits).
Al4
445 U.S. 198, 214, 63 L. Ed. 2d 329, 100 S. Ct. 1095
(1980).°
Petitioner’s claim of invalidity consists mainly of
rhetorical flourishes and cannot scale this mountain of case
law. Due process simply does not require an agency to
convene an evidentiary hearing when it appears
conclusively from the papers that, on the available
evidence, the case only can be decided one way. See
Hynson, 412 U.S. at 621. It follows that administrative
summary judgment, properly configured, is an acceptable
procedural device.
Applicability of Rule 56 Precedents
Petitioner’s attempt to break the bond between
administrative summary judgment and its courtroom
counterpart is similarly unavailing. From its inception, the
concept of administrative summary judgment has been
linked inextricably to Fed. R. Civ. P. 56. In all
probability, it was Professor Davis who first forged this
link. He wrote: "Some agencies might well take a leaf
from the federal rules of civil procedure and permit
summary judgment without evidence when no issue of fact
is presented." 1 Kenneth C. Davis, Administrative Law
Treatise § 8.13, at 578 (1958). A dozen years later, two
other leading administrative law scholars seized upon this
sentence and developed it into a highly influential report to
© Costle dealt with the direct ancestor of 40 C.F.R. § 125.75(a)(1),
namely, 40 C.F.R. § 125.36(c)(1)(ii) (1979). The Court held that the
EPA lawfully could “limit any adjudicatory hearing to the situation
where an interested party raises a material issue of fact." 445 U.S. at
214.
neti
Al5
the Committee on Agency Organization and Procedure of
the Administrative Conference of the United States. See
Ernest Gellhorn & William F. Robinson, Jr., Summary
Judgment in Administrative Adjudication, 84 Harv. L.
Rev. 612 (1971) (rendering the report in article form).
Consistent with the circumstances of its birth,
administrative summary judgment has maintained a close
relationship with Rule 56. Many agencies habitually look
to Rule 56 case law for guidance in respect to
administrative summary judgments. See, e.g., Phillips
Pipe Line Co. vy. Phillips Pipe Co., 1994 FERC LEXIS
757, at *3 (April 26, 1994) (applying 18 C.F.R. §
385.217); United States v. Scotto Bros. Woodbury
Restaurant, Inc., 1993 OCAHO LEXIS 95, at *14
(December 7, 1993) (outlining practice in Executive Office
for Immigration Review). Other agencies, like EPA in the
present context, have taken the step of formalizing the
relationship.- See, e.g., 29 C.F.R. § 2200.2 (1993)
(making Rule 56 directly applicable to proceedings before
OSHA); see also In re Summary Decision Procedures, 34
F.C.C.2d 485, 487-88 (1972) (characterizing an FCC
summary disposition regulation, 47 C.F.R. § 1.251(a)(1),
as "essentially the same" as Rule 56).
In view of this history, one respected court has gone
SO far as to say, perhaps overbroadly, that the principles of
summary judgment outlined in Liberty Lobby "apply with
equal force in the context of administrative judgment."
John D. Copanos & Sons, Inc. v. FDA, 854 F.2d 510, 523
(D.C. Cir. 1988). We take a more circumspect view. In
our opinion, Rule 56 is the prototype for administrative
Summary judgment procedures, and the jurisprudence that
has grown up around Rule 56 is, therefore, the most fertile
Al6
source of information about administrative summary
judgment. Thus, "with minor individual modifications, the
summary judgment procedures should be similar in most
agencies [to those under Rule 56]."_ 1 Charles H. Koch,
Jr., Administrative Law & Practice § 5.78, at 419 (1985).
Hence, we reject petitioner’s contention that Rule 56
precedents are inapposite in proceedings before
administrative agencies.
Departure from Precedent
The linchpin of petitioner’s final procedural argument
is the notion that the Board broke new ground in patterning
its inquiry after Rule 56. We disagree.
It is well established that agencies are free to announce
and develop rules in an adjudicatory setting. See, e.g.,
NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 40 L.
Ed. 2d 134, 94 S. Ct. 1757 (1974). Of course, there are
limits on this freedom. As a general matter, when an
adjudicating agency retroactively applies a new legal
standard that significantly alters the rules of the game, the
agency is obliged to give litigants proper notice and a
meaningful opportunity to adjust.” See, e.g., Aero
Mayflower Transit Co. v. ICC, 699 F.2d 938, 942 (7th
Cir. 1983); Hatch v. FERC, 654 F.2d 825, 835 (D.C. Cir.
1981). By the same token, an agency ’cannot depart
significantly from prior precedent without explicitly
2’ While this requirement derives in part from a section of the
Administrative Procedure Act that applies only to full-fledged hearings,
see 5 U.S.C. § 554(b)(3) (1988), the requirement is grounded on
general considerations of fairness. Accordingly, we see no reason why
it should not also apply to adjudicative proceedings.
Al7
recognizing that it is doing so and explaining why.’"
Congreso de Uniones Industriales v. NLRB, 966 F.2d 36,
39 (1st Cir. 1992) (citation omitted); accord Davila-
Bardales v. INS, ___ F.3d __, (st Cir. 1994) [No.
93-2124, slip op. at 8].
These principles do not assist petitioner’s cause.
Though petitioner asseverates that, in the proceedings
below, EPA abruptly adopted a new legal standard that
substantially changed the showing required of a party
seeking an evidentiary hearing, this scenario is more
imagined than real. Here, the record reflects neither a
departure from precedent nor an alteration of the required
Showing. To the contrary, the Board’s approach to section
124.75 proceeds naturally from its earlier construction of
the provision and falls well within the mainstream of its
previously established practice. We explain briefly.
Although the Board never before has made the
equation between Rule 56 and EPA’s summary judgment
procedure so explicit, it traditionally has equated its
procedural standard for denial of an evidentiary hearing
anent an NPDES permit with the Rule 56 yardstick. On at
least three prior occasions, the Board suggested that
section 124.75’s reference to the presentation of "material
issues of fact relevant to the issuance of the permit"
requires the nonmovant to set forth a "genuine issue of
material fact." See In re City of Jacksonville, Etc. '
NPDES Appeal No. 91-19 (Aug. 4, 1992), slip op. at 2;
In re Miami-Dade Water & Sewer Auth. Dep’t, NPDES
Appeal No. 91-14 (July 27, 1992), slip op. at 17; In re
Al18
Great Lakes Chem. Corp., NPDES Appeal No. 84-8 (Sept.
3, 1985), slip op. at 4.%
Then, too, EPA has long espoused the view, in a wide
variety of settings, that while the Civil Rules are not
binding on agencies, they may inform administrative
practice in appropriate situations. See, e.g., In re Harmon
Elecs., Inc., 1993 RCRA LEXIS 113 at *9-*10 (Aug. 17,
1993); In re Premier Metal Prods., 1992 RCRA LEXIS
156, at *2 (Dec. 23, 1992). This is an approach rather
consistently followed both by EPA, see, e.g., In re Wego
Chem. & Mineral Corp., 1993 TSCA LEXIS 91, at *25-
*26 (Feb. 24, 1993), and by the federal courts, see, e.g.,
Amberg v. FDIC, 934 F.2d 681, 685 (Sth Cir. 1991)
(suggesting that administrative decisionmakers should look
for guidance to the Civil Rules when interpreting
regulations containing concepts or language derived in part
from those rules).
In sum, the procedure to which PRASA objects did
not spring suddenly and unannounced from EPA’s
bureaucratic brow. Rather, by the time that the agency
8 Great Lakes is of special interest, for in that case the EPA made
manifest that it considered the term "material" as used in section
124.75 to be akin to the federal courts’ definition of “genuine” under
Rule 56. After making a casual reference to Rule 56’s language, the
Board concluded, using the terms contained in section 124.75, that the
petitioner’s evidence was “relevant” but not “material.” It was not
“material,” the Board explained, because “evidentiary hearings [should
not] be granted whenever a party makes a bare assertion, without
anything more, that a permit’s monitoring requirements should be
reduced or modified -- this would hopelessly crowd hearing dockets
and clearly is not in accord with the purposes of . . . the Agency’s
regulations." Great Lakes, at 14.
Al9
decided this case, the concept that only the presence of a
genuine issue about a material fact could forestall brevis
disposition had taken deep root in administrative soi]
Thus, PRASA should have known all along that it would
be expected to present a genuine and material dispute in
order to earn an evidentiary hearing. Though the Board
had never before invoked Rule 56 in haec verba as a guide
to section 124.75, any reasonable litigant familiar with
administrative practice in general and with EPA’s
precedents in particular should have anticipated that it
would be required to present evidence adequate to
Overcome the functional equivalent of a Rule 56 motion 2
Little more need be said. The Board’s use of Rule 56
here was consistent both with its prior practice and with
prevalent understandings of administrative
judgment. Thus, the Board’s articulation, albeit "new" in
a Certain sense, falls well within the range of hitherto
unspoken principles that appropriately may be announced -
in the course of rendering an adjudicative determination.
See Bell Aerospace, 416 U.S. at 294; SEC vy. Chenery
Corp., 332 U.S. 194, 202-03, 91 L. Ed. 1995, 67 S. Ct.
1575 (1947); Molina v. INS, 981 F.2d 14, 22-23 (1st Cir.
1992).
In the last analysis, courts must take a practical,
commonsense view of the restrictions that constrain an
A20
agency’s freedom to alter prior practices. Those
restrictions, properly construed, do not lock an agency into
a position where it invariably must parrot the same phrases
or perpetually chant the same mantra. Reasonable
refinement and reformulation are both permissible and
advisable in administrative adjudication. Nothing more
transpired here. ,
V. THE STRESSED WATERS SHOWINGS
We now move from the procedural to the substantive.
In scrutinizing an order of an agency denying an
evidentiary hearing, a reviewing court must determine
whether the agency’s findings accurately mirror the record,
and if they do, whether those findings warrant denial of a
hearing under the pertinent regulations. See Hynson, 412
U.S. at 622. In this instance, the first part of the inquiry
tells the tale, for, if PRASA failed to present evidence
adequate to create a genuine issue of material fact on one
or more critical criteria, as EPA found, then EPA properly
denied the requested hearing.
The Future Impacts Showing
Under 40 C.F.R. § 125.61(f)(3), it was incumbent
upon PRASA to show, inter alia, that the emissions from
the Mayaguez POTW would not "retard the recovery of
the biota or water quality if the level of human
perturbation from other sources decreases." In
promulgating this requirement, EPA recognized that it was
erecting a high hurdle. Indeed, it stated in a preamble to
the regulations:
z
',
A21
As a practical matter, it will be extremely difficult
for most applicants discharging into stressed
waters to demonstrate that their discharge will
meet the requirements of section 125.61. As a
factual matter, the discharge of additional
pollutants into an already polluted marine
environment virtually always increases or
coniributes to adverse impact; it is ¢<tremely
difficult, as a practical matter, to .- monstrate that
it does not.
44 Fed. Reg. 34,784, 34,806 (June 15, 1979).
EPA concluded that PRASA had not cleared this
hurdle, and the Board concurred. It noted that the studies
submitted by petitioner -- principally the USGS report --
addressed only the current impacts of the facility’s
emissions relative to the current impacts of all other
emissions, and did not purport to make predictions
regarding future impacts. See Board Op. at 15-16.
Accordingly, without defining exactly what type of
evidence might surmount the (f)(3) hurdle, the Board
determined that petitioner’s effort came up short. If this
determination holds water, then the agency had a right
“summarily to deny the petition.”
10’ PRASA makes a rather convoluted threshold argument that
implicates the order of the showings which must be made to secure
modification of secondary treatment requirements. In this case, we
doubt that the order of the showings makes the slightest difference.
Moreover, there is absolutely no basis for believing either that the
showings must be made in a particular sequence, or that separate
hearings must be held for each showing. Absent a contrary indication
(continued. ..)
A22
This reasoning finds a striking parallel in Hynson.
There the Court agreed that an agency was not required to
"provide a formal hearing where it is apparent at the
threshold that the applicant has not tendered any evidence
which on its face meets the statutory standards as
particularized by the regulations," Hynson, 412 U.S. at
620 (emphasis in the original). Spurred by Hynson, see
id. at 621 n.17, FDA soon thereafter announced that, with
regard to an imprecise regulation, a study would not
conclusively be deemed inadequate unless it totally failed
"even to attempt to comply." See 39 Fed. Reg. 9757
(Mar. 13, 1974). Since that time, the courts have upheld
FDA’s summary denials of hearings under this policy. As
the District of Columbia Circuit explained:
[E]ven "a regulatory provision which seems vague
in the abstract may nonetheless be conclusively at
odds with a peculiarly deficient item of evidence."
Thus . . . summary judgment may be entered not
only for failure to comply with precise
regulations, but also "on the basis of manifest
noncompliance with general statutory or
regulatory provisions... ."
Copanos, 854 F.2d at 522 (citations omitted). We agree.
Although in some cases an imprecise regulation may
10/ (...continued)
in the regulation itself -- and none exists here -- we think it is fair to
assume that a party must satisfy every element of a provision written
in the conjunctive. See WJM, Inc. v. Massachusetts DPW, 840 F.2d
996, 1011 (ist Cir. 1988); Donovan v. Burger King Corp., 672 F.2d
221, 227 (1st Cir. 1982); see also 1A Norman J. Singer, Sutherland
Stat. Constr. § 21.14 (Sth ed. 1993)
A23
require an agency to give an applicant the benefit of the
doubt regarding a summary decision, other cases will be so
clear-cut as to warrant summary adverse action,
notwithstanding the imprecision in the agency’s standards.
We believe the present case falls into the heartland of the
latter category.
The Board’s reasoning is also hauntingly reminiscent
of Buttrey v. United States, 690 F.2d 1170 (Sth Cir.
1982), cert. denied, 461 U.S. 927, 77 L. Ed. 2d 298, 103
S. Ct. 2087 (1983), a case involving the Clean Water Act.
There, the court of appeals agreed that the Army Corps of
Engineers need not hold a hearing on every application for
a permit to discharge dredged or fill material into
navigable waters. Id. at 1174-83. One reason given was
that the petitioner apparently decided not even to attempt
to make the three showings required under [the applicable
regulations]. Procedural improvements in the nature of
trial-type safeguards could do nothing to remedy so
fundamental a flaw in the prima facie case. Jd. at 1183
(footnote omitted).
PRASA does not deny that its studies failed to draw
direct conclusions regarding future impacts.’ Instead, it
attempts to discredit EPA’s interpretation of the future
impacts regulation, labelling it absolutist. This fusillade
1 PRASA does offhandedly suggest that its studies make the
requisite showing indirectly. Compliance with (f)(1), PRASA muses,
might in some cases provide a scientific basis for the prediction
required by (f)(3). While that may (or may not) be so in theory, it is
certainly not so on the facts of this case. Here, PRASA’s showing of
no current impacts was weak at best, see infra note 12, and cannot
support the weight of the proposed inference.
A24
misses the mark. Though an absolutist interpretation,
rendering modifications of secondary treatment
requirements for emissions into stressed waters
unobtainable, might well be problematic, we do not read
the Board’s opinion in that fashion.
In considering this issue, the Board refused to
presume, absent scientific evidence, that a large quantity of
lightly treated sewage -- estimated as 850 tons per year --
would have no impact on the surrounding stressed waters
in the event that other stresses abated. See Board Op. at
15-16. This neither betokens an absolutist mindset nor
forecloses the possibility that the Board might entertain a
presumption of no future harm if presented with the
prospect of more modest emissions. Nor does the Board’s
opinion foreclose the possibility that it might find a
scientific showing of no future impacts to be persuasive.
On the contrary, after noting EPA’s "great reluctance" to
sanction emissions into stressed waters, the Board made a
point of leaving the door ajar:
This is not to say that there is no case where
discharges into stressed waters would be allowed.
Where, for example, the receiving waters are
stressed by pollutants other than those in the
proposed discharge and-such pollutants do not
contribute to existing stresses, a § 301(h) permit
may be appropriate.
Id. at 18 & n.22.
To say more would be to paint the lily. We conclude
that EPA did not promulgate an absolutist standard. And,
moreover, we find the Board’s rendition of the evidence to
Neer
A25
be faithful to the record, its reasoning to be sound, and its
position to be well-supported by authority. Consequently ,
we hold that the Board acted within its authority in
denying petitioner an evidentiary hearing and summarily
terminating the administrative appeal on the ground that
the studies submitted by petitioner failed to make any
attempt to satisfy the strictures of 40 C_.F.R.
§ 125.61(f)(3) 42
VI. CONCLUSION
We need go no further. PRASA’s application for
modification and its concomitant request for an evidentiary
hearing were fairly considered and appropriately rejected.
For the reasons set forth herein, we uphold the agency’s
final action and deny PRASA’s petition for review.
It is so ordered.
1 The Board gave an alternative reason for upholding EPA’s refusal
to convene an evidentiary hearing, ruling that petitioner failed to show
that its discharge did not currently “contribute to, increase, or
perpetuate . . . stressed conditions." 40 C.F.R. § 125.61(f)(1) (1993).
We need not pursue this point, for petitioner’s failure to adduce
hearing-worthy evidence on the future impacts prong is in itself enough
to justify denying the instant petition for judicial review. We add in
passing, however, that the record strongly suggests the correctness of
the Board’s conclusion on the current impacts prong as well.
A26
APPENDIX B
BEFORE THE ENVIRONMENTAL
APPEALS BOARD
UNITED STATES ENVIROMENTAL
PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of:
Mayaguez Regional Sewage
Treatment Plant
Puerto Rico Aqueduct and
Sewer Authority
NPDES Appeal
No. 92-23
Permit No. PROO23795
ee ee ae ae ee ae ee oe
ORDER DENYING RECONSIDERATION
AND STAY PENDING
RECONSIDERATION OR APPEAL
On September 7, 1993, the Puerto Rico Aqueduct and
Sewer Authority (PRASA) filed a timely motion requesting
that the Board reconsider its August 23, 1993 Order
Denying Review in the abovecaptioned matter. Mayaguez
also asks that the Board stay the effective date of the order
pending reconsideration or (if the motion for
reconsideration is denied) pending appeal to the United
States Court of Appeals for the First Circuit. For the
following reasons, Mayaguez’s motion for reconsideration
and for a stay pending reconsideration or judicial appeal is
denied.
ee
A27
A. Motion For Reconsideration
Mayaguez contends that reconsideration is warranted
for the following three reasons: 1) the Board erroneously
departed from Agency regulations and its own precedents
and created a new and unduly harsh standard for reviewing
denials of evidentiary hearing requests; 2) by reviewing a
document prepared by the U.S. Geological Survey (USGS)
regarding the present contribution of PRASA’s discharge
to the existing marine environment, the Board usurped the
function of the Regional Administrator: and 3) under the
existing legal standard, PRASA has met its burden of
setting forth a material issue of fact warranting an
evidentiary hearing.
Under 40 C.F.R. § 124.91(i), motions for
reconsideration "must set forth the matters claimed to have
been erroneously decided and the nature of the alleged
errors." Such a motion will not be granted absent a
showing that the Board has made a demonstrable error,
such as a mistake of law or fact. Jn re Hardin County,
OH, RCRA (3008) Appeal No. 92-1 (Feb. 4, 1993) (Order
Denying Reconsideration). Upon review of PRASA’s
motion and the Region’s response, we conclude that
PRASA has failed to demonstrate that reconsideration of
the Order Denying Review is warranted.
As the Board noted in its order Denying Review (at 3),
publicly owned treatment works, such as the Mayaguez
plant, must ordinarily meet secondary treatment
requirements established under the § 301 of the Clean
Water Act (CWA). See CWA § 301(b)(1)(B), 33
U.S.C.A. § 1311(b)(1)(B); 40 C.F.R. § 125.3(a)(1).
Pursuant to procedures established in CWA § 301(h),
A28
however, the Administrator may, under certain
circumstances, issue an NPDES permit that modifies or
relaxes the secondary treatment requirements of the Act.
In particular, §301(h) allows for a modified permit, where
the applicant can demonstrate that it satisfies each of nine
criteria listed in CWA Sections 301(h)(1) through (h)(9).
Mayaguez, at3 n. 4 & 13. Under CWA §301(h)(2) and
its implementing regulations, special rules apply if the
marine environment surrounding the proposed outfall is
already stressed by other discharges. In such cases, the
applicant must demonstrate that its discharge des not or
will not:
(1) Contribute to, increase, or perpetuate such
stressed conditions;
(2) Contribute to further degradation of the biota or
water quality if the level of human perturbation from
other sources increases; and
(3) Retard the recovery of the biota or water quality
if the level of human perturbation from other sources
decreases. :
40 C.F.R. §125.61(f).
The Board decided that PRASA was not entitled to
review of Region II’s permit denial decision because
PRASA had failed to show that it met all of the criteria
necessary for issuance of a §301(h) permit. First, the
Board held that PRASA had failed to present amy evidence
to show that its discharge would not retard recovery of the
biota if existing sources of pollution were to decrease in
the future, as required under § 125.61(f)(3). Second, the
A29
Board concluded that PRASA had also failed to present
sufficient evidence to show that its discharge would not
contribute to present conditions, as required under
§ 125.61(f)(1).
Importantly, PRASA does not directly challenge the
Board’s conclusion that PRASA’s failure to present any
evidence on future effects, was, without more, an adequate
reason for denying the §301(h) permit. Rather, PRASA
argues in its reconsideration request that PRASA presented
sufficient evidence on present effects to warrant a hearing
on whether its discharge would contribute to the existing
Stressed marine environment.
Under 40 C.F.R. §124.75 the Regional Administrator is
required to hold an evidentiary hearing where there are
"material issues of fact relevant to the issuance of the
permit." The Board interpreted § 124.75 to mean that the
Regional Administrator in deciding an evidentiary hearing
request must not only ensure that the facts in dispute are
"material" to the outcome, but that resolution of those
facts in favor of the applicant would result in an altered
permit decision. The Board construed this to mean that
the material facts specified in § 124.75 had to relate to a
"genuine" issue affecting the outcome of the permit
decision. Mayaguez, at 11-19. In interpreting this
provision, the Board looked to Rule 56 of the Federal
Rules of Civil Procedure for guidance. PRASA argues
that the Board erred in looking to Rule 56 and that the
"new" test announced in the decision is not consistent with
the rules now governing evidentiary hearings. We
disagree.
A30
Whether PRASA was entitled to an evidentiary hearing
turns on whether PRASA satisfied the requirements of
§124.74. Section 124.74 requires that an evidentiary
hearing request: "state each legal or factual question
alleged to be at issue, and their relevance to the permit
decision, * * * Information supporting the request * *
shall be submitted as required by § 124.73 unless * * *
already part of the Administrative record * * *." Thus, by
its terms §124.74 contemplates that a hearing request will
identify both the legal issue to be resolved and the factual
information relied upon to support the legal outcome.
Here, PRASA does not dispute that it did not present any
evidence to support a finding that its discharge would not
retard recovery if the level of pollution from other sources
decreases, as required under § 125.61(f)(3). In these
circumstances, the Regional Administrator reasonably
concluded that PRASA could not satisfy the § 125.61(f)(3)
criteria and thus a hearing was not necessary. In
circumstances such as these, where no evidence is
presented to support one of three mandatory permit
preconditions, a Regional Administrator may properly
conclude that an evidentiary hearing on issues pertaining to
the other permit preconditions is not necessary or required,
on the ground that the criteria for the permit modification
ultimately cannot be met.
Thus, even if we were to assume for the sake of
argument that the studies presented by PRASA raised a
factual question regarding the extent to which the
Mayaguez discharge is presently contributing to existing
environmental stresses, we would still reach the same
result. Without any evidence to support a finding under
§ 125.61(f)(3), PRASA was not entitled to an evidentiary
hearing with respect to potential factual disputes regarding
A31
§ 125.61(f)(1). We therefore see no reason to reconsider
the merits of our August 23, 1993 Order Denying
Review.!/
B. Stay Request
PRASA has also requested that the Board stay the
effective date of the August 23rd order pending resolution
of the motion for reconsideration or (if the motion is
denied) pending an appeal to the United States Court of
Appeals for the First Circuit. PRASA contends that
without a stay it will suffer irreparable legal and financial
harm because of its "financial and structural inability to
comply immediately with secondary treatment requirements
at Mayaguez." Affidavit of Emilio M. Colon, Executive
Director, PRASA (September 2, 1993). PRASA’s request
for a stay is denied. Contrary to PRASA’s assumptions,
the Board’s consideration of this matter did not serve to
relieve PRASA of its obligation to comply with secondary
treatment requirements under its existing 1987 NPDES
permit.” Rather, PRASA has been provided with relief
from the secondary treatment requirements under the terms
of a 1991 Order On Consent, EPA~CWAII-91-72. As part
of that Order, PRASA has been required to comply with
1’ Because we are denying reconsideration on the grounds that
PRASA did not meet the criteria for a § 301(h) permit based on
PRASA’s failure to submit any evidence to satisfy § 125.61(f)(3), we
do not reach the question of whether the Board Properly considered the
United States Geological Survey Study regarding present impacts.
2’ As noted in our August 23rd Order (p. 3 n.1) the Mayaguez plant
received an NPDES permit in 1987 which includes secondary
treatment standards.
A32
certain interim limits which, in effect, modify the
secondary treatment requirements in the 1987 permit. See
Affidavit of Sandra Rocafort, Deputy Executive Director
for compliance and Quality Assurance, PRASA (Sept. 27,
1993). Although the order expired on November 22,
1992, the Mayaguez facility apparently continues to
operate under the interim limits set in the 1991 Order on
Consent.
Neither PRASA’s filing of a petition for review with
the Board, nor the Board’s Order Denying Review,
directly affected PRASA’s obligation to comply with the
secondary treatment requirements of its 1987 NPDES
permit.2 The extent of PRASA’s obligations under its
existing 1987 permit rests not with the Board but with the
Agency’s enforcement personnel. See Jn re General
Electric Co., RCRA Appeal No. 91-7 at 9 (EAB, Nov. 6,
1992). (The Board [in the permit appeal context] does not
have responsibility for implementation of a validly issued
permit.) For these reasons, PRASA’s stay request pending
appeal to the First Circuit is denied.
ENVIRONMENTAL APPEALS BOARD
By:
Nancy B. Firestone
Environmental Appeals Judge
Dated: December 12, 1993
2’ We note that under the general rules governing permit stays,
existing permit requirements remain in full force and effect pending
the outcome of a permit modification request. See 40 C.F.R.
§124.16(c). This provision does not expressly deal with permit
modifications under § 301(h), but is consistent with our holding on
PRASA’s stay request.
| _
A33
APPENDIX C
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIROMENTAL
PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of:
Mayaguez Regional Sewage
Treatment Plant
Puerto Rico Aqueduct and
Sewer Authority
NPDES Appeal
No. 92-23
Permit No. PROO23795
ll ed
1993 TSCA LEXIS 240
[Decided August 23, 1993]
ORDER DENYING REVIEW
Before Environmental Appeals Judges Nancy B.
Firestone, Ronald L. McCallum, and Edward E. Reich.
Syllabus
The Puerto Rico Aqueduct and Sewer Authority
(PRASA) seeks review of the denial of an evidentiary
hearing request on certain issues relating to Region II’s
denial of PRASA’s application for a National Pollutant
Discharge Elimination System (NPDES) permit under
Section 301(h) of the Clean Water Act (CWA), 33 U.S.C.
A34
§ 1311(h). PRASA applied for the § 301(h) permit in
1979 for its then proposed Mayaguez Regional Wastewater
Treatment Plant, a Publicly Owned Treatment Works
(POTW). The plant, located in Mayaguez, Puerto Rico,
on the Western shore of the island, discharges into the
Atlantic Ocean.
Under CWA § 301(h), the Administrator may, under
certain circumstances, modify or relax the secondary
treatment standards imposed under CWA § 301(b)(1)(B),
33 U.S.C. § 1311(b)(1)(B). In order to qualify for a
§ 301(h) permit, the applicant has the burden of
demonstrating that it complies with each of the criteria set
forth in CWA §§ 301(h)(1) - (h)(9) and the implementing
regulations. The Region denied the permit, as well as
PRASA’s evidentiary request, on the grounds that PRASA
failed to demonstrate compliance with CWA §§ 301(h)(1),
(h)(2), and (h)(9). Under CWA § 301(h)(2), POTWs must
demonstrate that the modified discharge will not interfere
with the attainment or maintenance of that water quality
which allows for recreational uses and assures protection
of public water supplies and the protection and propagation
of fish and wildlife. If, as here, the receiving waters are
already stressed from sources other than the applicant’s
discharge, the applicant has the burden of demonstrating,
by a preponderance of the evidence, that its modified
discharge will not contribute to those stressed conditions,
and will not retard recovery of the biota if the level of
pollution from other sources decreases in the future. 40
C.F.R. § 125.61(f). Rather than making this
demonstration, PRASA submitted evidence that shows the
contribution from its discharge would be minimal or
uncertain without more testing and analysis. The Region
concluded that PRASA failed to meet its burden of
A35
demonstrating that the discharge would not contribute to
existing conditions, and that PRASA therefore failed to
raise a genuine issue of material fact warranting an
evidentiary hearing. This appeal followed.
Held: To support an evidentiary hearing request, the
applicant must raise an issue of material fact. This issue
must be a genuine one. In determining whether a factual
dispute is "genuine," the Board adopts the standard
articulated by the Supreme Court in Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1985), with regard to
motions for summary judgment. Under this Standard, a
party must present sufficient probative evidence in support
of its position from which a reasonable decisionmaker
could find in that party’s favor under the applicable
standard of proof.
Under CWA § 301(h)(2) and 40 C.F.R. § 125.61(f),
PRASA has the burden of demonstrating, by a
preponderance of the evidence, that its proposed modified
discharge will not contribute to the already stressed
conditions of the coral communities in the vicinity of the
discharge and will not retard recovery if levels of pollution
from other sources decrease in the future. The data
submitted by PRASA in Support of both its permit
application and its evidentiary hearing request are
insufficient to satify PRASA’s burden. Thus, PRASA has
not raised a genuine issue of material fact and the
evidentiary hearing request was therefore properly denied.
Accordingly, review of PRASA’s petition is denied.
Before Environmental Appeals Judges Nancy B.
Firestone, Ronald L. McCallum, and Edward E. Reich.
A36
Opinion of the Board by Judge Firestone:
By petition dated August 25, 1992, the Puerto Rico
Aqueduct and Sewer Authority (PRASA) seeks review of
U.S. EPA Region II’s denial of an evidentiary hearing
request on certain issues concerning the Region’s denial of
PRASA’s application for a National Pollutant Discharge
Elimination System (NPDES) permit under Section
§ 301(h) of the Clean Water Act (CWA), 33 U.S.C.
§ 1311(h). At the request of the Environmental Appeals
Board, the Region filed a response to the petition for
review (Region’s Response). In an Order dated October
26, 1992, the Board granted PRASA’s request to
supplement its petition to address additional issues raised
in the Region’s Response. PRASA filed a supplemental
petition on December 15, 1992 (Supplemental Petition),
_and the Region filed a reply on February 19, 1993. The
Environmental Appeals Board has jurisdiction to grant or
deny this petition for review under 40 C.F.R. §§ 124.72 &
124.91. See 40 C.F.R. § 125.59(g)(5) ("Appeals of
section 301(h) determinations shall be governed by the
procedures in 40 CFR part 124."). For the reasons set
forth below, the petition for review is denied.
I. Background
On September 12, 1979, PRASA applied for an NPDES
permit modifying the secondary treatment requirements of
the Act for its then proposed Mayaguez Regional
Wastewater Treatment Plant, a Publicly Owned Treatment
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Works (POTW).” The plant, located in Mayaguez,
Puerto Rico, on the Western shore of the island,
discharges into the Atlantic Ocean. Ordinarily, POTWs
are required, under CWA § 301(b)(1)(B), 33 U.S.C.
§ 1311(b)(1)(B), to meet secondary treatment standards
established under the Act.” However, PRASA sought a
modification of the secondary treatment requirements
under the procedure established in CWA § 301(h).” See
Petition for Review, at 2. In general, CWA § 301(h)
“ The Mayaguez plant was issued an NPDES permit on September
30, 1987, containing secondary treatment requirements, and began
Operating in December of 1987. Although the permit expired on
November 29, 1992, PRASA filed a timely application for renewal and
therefore continues to operate under the terms of the 1987 permit until
the Region acts on the renewal application. See 40 C.F.R. § 122.6.
¥ Under 40 C.F.R. § 125.3(a)(1), which implements CWA § 301(b),
all permits for POTWs must contain effluent limitations based upon
secondary treatment from the date of permit issuance.
* CWA § 301(h) applies to discharges from POTWs into
marine waters. This section defines "discharge into
marine waters" as:
[A] discharge into deep waters of the territorial sea
or the waters of the contizuous zone, or into saline
estuarine waters where there is strong tidal
movement and other hydrological and geological
characteristics which the Administrator determines
necessary to allow compliance with paragraph (2) of
this subsection, and section 1251(a)(2) of this title.
The Atlantic Ocean is a marine water within the meaning
of this section.
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provides that the Administrator, with the concurrence of
the State, may, under certain circumstances,* issue an
NPDES permit that modifies or relaxes the secondary
treatment requirements of the Act.*’ POTWs receiving §
301(h) modifications must at a minimum perform primary
treatment and, among other things, demonstrate that the
modified discharge will not interfere with the attainment or
maintenance of that water quality which allows for
recreational uses and assures protection of public water
4’ The Act requires that the applicant satisfy each of nine criteria. In
summary, these criteria, which are implemented through 40 C.F.R.
Part 125, Subpart G, require the applicant to demonstrate that: (1)
there are applicable water quality standards for those pollutants for
which the modification is sought and the applicant complies with such
standards; (2) the discharge will not interfere (alone or in combination
with pollutants from other sources) with the attainment or maintenance
of a balanced indigenous population of marine life, or with the
attainment or maintenance of that water quality which assures
protection of public water supplies and recreational activities; (3) the
applicant has established a system for monitoring the impact of the
modified discharge on marine life; (4) the modified requirements will
not result in any additional requirements on any other point or
nonpoint source; (5) all applicable pretreatment requirements will be
enforced; (6) certain pretreatment requirements for toxic pollutants are
met; (7) the applicant has established a schedule of activities to
eliminate the introduction of toxic pollutants from non-industrial
sources; (8) there will be no new or substantially increased discharge
of the pollutant to which the modification applies beyond that specified
in the permit; and (9) the proposed modified discharge will receive at
least primary or equivalent treatment and also meets the toxicity
criteria established under CWA § 304(a)(1).
2’ The Agency defines secondary treatment in terms of three
parameters: biochemical oxygen demand, suspended solids, and pH.
See 40 C.F.R. § 133.102.
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supplies and the protection and propagation of fish and
wildlife. See CWA § 301(h)(2); 40 C.F.R. § 125.61.
Region II tentatively denied PRASA’s § 361(h) permit
application on February 6, 1984, on the grounds that the
Commonwealth of Puerto Rico had not concurred in the
permit under the procedure of 40 C.F.R. §§ 125.60(b)(2)
and 124.54. See Letter from Jacqueline E. Schafer,
Regional Administrator, to Carlos Mulero, Executive
Director, PRASA (Feb. 6, 1984) (Exh. 6 to Region’s
Response). Under these procedures, States must certify
that a modified discharge will comply with all applicable
State water quality standards.” The Region also
concluded that Puerto Rico had failed to issue a positive
determination that the modified discharge would not result
in additional treatment requirements for other point
sources, pursuant to 40 C.F.R. § 125.63. Jd.
Thereafter, in February and June of 1985, PRASA
submitted a revised § 301(h) application along with
supplemental information prepared for PRASA by the
engineering firm of Metcalf & Eddy to support its
assertion that the modified discharge would in fact meet
the § 301(h) waiver requirements. Following a review of
this new information, the Region once again issued a
tentative denial on July 17, 1986, on the grounds that
PRASA’s proposed modification would not satisfy the §
301(h) modification requirements. In particular, the
Region identified the following deficiencies: (1) PRASA
had failed to demonstrate that dilution at the outfall would
© Puerto Rico subsequently certified that the Proposed 301(h) permit
would comply with State law on February 5, 1985.
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ensure compliance with the Commonwealth’s water quality
standards for chlordane or the Agency’s saltwater criteria
for chlordane or mercury; (2) PRASA had failed to
demonstrate the proposed discharge would not contribute
to already stressed conditions in the vicinity of the
proposed discharge; (3) PRASA had failed to thoroughly
characterize several components of the biota or present a
comparative demonstration of the effects of the existing
and modified discharge; and (4) FRASA had failed to
implement a pretreatment program. See Letter from
Christopher J. Daggett, Regional Administrator, to Arturo
Valldejuly, Executive Director, PRASA (July 17, 1986)
(Exh. 7 to Region’s Response).
On October 10, 1986, the Region, in accordance with
the procedures established in 40 C.F.R. § 124.10 and §
124.14 issued a public notice and solicited commenss on
the application and its tentative decision. At PRASA’s
request, a public hearing was held on April 28-29, 1987,
and comments were taken until May 15, 1987. In April of
1987, PRASA filed an additional report prepared by
Metcalf & Eddy (M & E Study).” The M & E Sndy
2’ Following submission of the 1987 M & E Study, the Region
contracted with the firm of Tetra Tech, Inc. to conduct a technical
review of that Study. Tetra Tech produced a report in August of
1990. entitled: Technical Review of the 1987 Information Supplement
of the Mayaguez Regional Wastewater Treatment Plant (Puero Rico)
Section 301(b) Application for Modification of Secondary Treatment
Requirements for Discharge into Marine Waters (hereinafter Tetra
Tech Report). (Exh. 1 to Region’s Response to PRASA’s
Supplemental Petition). PRASA argues that because the Region did
not list this Report in the certified index to the administrative record
submitted along with the Region’s response to PRASA’s petition for
(continued...)
A41
presented additional information concerning, inter alia, the
condition of the water Surrounding the proposed discharge
and the potential impact if the § 301(h) permit application
were granted. The Study concluded that although the coral
communities in the vicinity of the modified discharge were
already stressed due to heavy sediment loadings, the
addition of 850 tons annually from PRASA’s modified
discharge would not have a measurable effect on the
surrounding coral communities when compared to the
contributions from the Rio de Anasco. M & E Study at
4-24 -4-27. This additional sediment, the Study States,
“will account for slightly more than one percent of
sediment loading." /d. at 4-18.
V/ (...continued)
review, the Report is not part of the administrative record in this
Proceeding. Supplemental Petition, at 2-3. Thus, according to
PRASA, the Board must strike any of Region II’s findings or
conclusions that are based on this report. id. We disagree. The
Report was cited on page 32 of the Region’s response to comments
(see Exh. 8 to Region II’s Response) and therefore became part of the
administrative record. See 40 C.F.R. § 124.17(b) ("any documents
A42
The Region issued a final decision denying PRASA’s
§ 301(h) application on December 13, 1991, on the
grounds that PRASA failed to meet the requirements of
CWA §§ 301(h)(1), (h)(2), and (h)(9) and the
implementing regulations.” PRASA filed a request for an
evidentiary hearing on February 26, 1992, in which it
contested the Region’s factual and legal basis for denying
the § 301(h) permit. See Exh. 3 to Region’s Response.
As an attachment to its hearing request, PRASA submitted
a 1992 report prepared by the U.S. Geologic Survey
entitled "Assessment of the Biota, Sediments, and Water
Quality Near the Discharge of Primary Treated Effluent
from the Mayaguez Regional Wastewater Treatment Plant:
Bahia de Anasco, Puerto Rico: December 1990 - January
1991" (Exh. 4 to Region’s Response) (hereinafter "1992
Report"). According to PRASA, this report supports its
contention that the plant satisfies the § 301(h) requirements
for a rélaxation of the secondary treatment standards.”
8’ See supra n.4; 40 C.F.R. Part 125, Subpart G.
2’ Although the Region reviewed the 1992 Report, it contends that it
was not obligated to do so because the Report was submitted after May
15, 1987 (the close of the comment period). We disagree. As the
Region correctly notes, in publicly noticing its tentative decision to
deny PRASA’s § 301(h) permit application, the Region invoked the
provisions of 40 C.F.R. § 124.14(a)(1) (Reopening of the public
comment period). In such cases, parties are required to submit all
reasonably available factual grounds supporting their position,
including all supporting materials, by the close of the comment period.
Under 40 C.F.R. § 124.76, where the Region elects to apply the
requirements of § 124.14(a), any supporting information that was not
submitted to the administrative record by the close of the comment
period, may not be submitted as part of an evidentiary hearing request
. (continued...)
A43
Appendix 3 to this report! states, in pertinent part, that
the hypothesis that the plant’s discharge may be Causing
additional harm to the coral reefs has been neither proved
nor disproved, and that further Study is needed because of
the presence of pollution from other sources. Appendix 3
to 1992 Report, at 11.
9/ (...continued)
except for good cause. Good cause exists where information could not
reasonably have been made available earlier. 40 C.F.R. § 124.76. In
the present case, the studies on which the 1992 Report is based were
conducted after the plant began operating in December of 1987. Thus,
because the information in the Report (an assessment of the impact
from the actual operation of the plant) could not have been reasonably
ascertained or made available by the close of the comment period,
good cause existed for failing to submit the information earlier.
the administrative record. See 49 Fed. Reg. 38,042 (Sept. 26, 1984)
(supporting information need not be submitted to the administrative
record during the comment period); 40 C.F.R. § 124.74(b)(1) (parties
requesting an evidentiary hearing must submit information supporting
the request unless the information is already part of the administrative
record); In re Boise Cascade Corp., NPDES Appeal No. 91-20, at 10
(EAB, Jan. 15, 1993) (holding that the Region may not deny an
evidentiary hearing request on the ground that substantiating data was
not submitted during the comment period).
10’ Appendix 3 is entitled: Coral Diversity and Cover in Reefs off
Mayaguez Bay: Relation to the Mayaguez Sewage Treatment Plant
Outfall, Report submitted to the U.S. Geological Survey, Carlos
Goenaga, Dept. Biology, RUM, Mayaguez, PR, April, 1991.
Ast4
The Region denied PRASA’s evidentiary hearing
request on July 23, 1992. See Exh. 2 to Region’s
Response. In its denial, the Region relied primarily on
PRASA’s failure to submit sufficient evidence to raise a
material issue of fact with regard to PRASA’s compliance
with the requirements of CWA § 301(h)(2) and its
implementing regulations. Under the regulations
implementing CWA § 301(h)(2), where the marine
environment surrounding the proposed outfall is already
stressed from sources other than the applicant’s discharge,
the applicant has the burden of demonstrating, to the
satisfaction of the Administrator, that its discharge does
not or will not:
(1) Contribute to, increase, or perpetuate such
stressed conditions;
(2) Contribute to further degradation of the biota or
water quality if the level [*18] of human
perturbation from other sources increases; and
(3) Retard the recovery of the biota or water quality
if the level of human perturbation from other sources
decreases.
40 C.F.R. § 125.61(f) (emphasis added). The Region
concluded that PRASA failed to present sufficient evidence
to allow a reasonable finder of fact to conclude that
PRASA had satisfied these criteria. In particular, the
Region explained that because the waters surrounding the
outfall are undeniably stressed, PRASA has the burden of
demonstrating that its modified discharge will meet the
requirements listed above. PRASA instead presented
evidence by both its own contractor and the U.S.
A45
Geological Survey that shows that the additional impact of
the modified discharge on the surrounding coral
communities would be minimal or uncertain when
compared to existing sediment loadings. However,
because the regulations indicate that there can be no
contribution to existing stressed conditions, and because
PRASA concedes that it will contribute 850 tons per year
of additional sediment, the Region concluded PRASA
could not prevail as a matter of law, and therefore there
was no basis for an evidentiary hearing.’ This appeal
followed.
According to PRASA, it did indeed raise a material
issue of fact regarding its compliance with CWA
§ 301(h)(2) and 40 C.F.R. § 125.61(f). Specifically,
PRASA argues that the data submitted in support of its
waiver application, including the 1987 M & E Study and
the 1992 Report, demonstrate that it will satisfy the
1" In its denial, the Region stated, in part:
The applicant failed to address the issue of stressed waters.
PRASA’s failure to adduce evidence in the nature of a stressed
waters demonstration, on the issue of whether the proposed
modified discharge will interfere with the protection and
propagation of a [balanced indigenous population] fails to raise
a genuine issue of material fact as to this issue. PRASA has
not demonstrated, to the satisfaction of the Administrator, that
its proposed modified discharge will assure compliance with
sub-section 301(h)(2) of the Act, with regard to non-
interference with the balanced indigenous population in stressed
waters.
Denial of Evidentiary Hearing Request, at 3 (Exh. 2 to Region’s
Response).
A46
-_ -
stressed water demonstration required by section 125.61(f).
PRASA does not dispute that the coral communities in the
vicinity of the discharge are stressed due to heavy sediment
loadings. See Petition for Review, at 10-11. Nor does
PRASA contest that, because of these already stressed
conditions, it must make the demonstration required by 40
C.F.R. § 125.61(f). Id. Rather, PRASA contends that the
effect of its discharge presents a factual issue which should
be resolved in an evidentiary hearing. For the
following reasons, we conclude that the Region properly
denied the evidentiary hearing request with respect to
PRASA’s compliance with CWA § 301(h)(2) and the
implementing regulations, and we therefore deny
review.
II. Discussion
Under the rules governing an NPDES proceeding, there
is no appeal as of right from the Regional Administrator’s
decision. In re Miners Advocacy Council, NPDES Appeal
No. 91-23, at 3 (EAB, May 29, 1992). Ordinarily a
petition for review is not granted unless the Regional
Administrator’s decision is clearly erroneous or involves
an exercise of discretion or policy that is important and
12 PRASA also argues that the Region erroneously concluded that
PRASA failed to satisfy the requirements of CWA §§ 301(h)(1) and
(h)(9).
13’ As discussed above, an applicant for a § 301(h) modified permit
must demonstrate that it satisfies all requirements of the Act. Because
PRASA did not meet its burden of demonstrating compliance with
§ 301(h)(2), we do not reach the issue of whether or not PRASA met
the requirements of §§ 301(h)(1) and (h)(9).
A47
Should therefore be reviewed by the Environmental
Appeals Board.“ See, e.g., In re City of Jacksonville,
District II Wastewater Treatment Plant, NPDES Appeal
No. 91-19 (EAB, August 4, 1992). The petitioner has the
burden of demonstrating that review should be granted.
See 40 C.F.R. § 124.91(a). In determining whether
PRASA has met this burden, we will first focus on
whether PRASA has met the requirements of CWA
§ 301(h)(2).
A. Compliance with CWA § 301(b) (2)
Under the regulations, a party requesting an evidentiary
hearing must raise a material issue of fact relevant to the
issuance of the permit. See 40 C.F.R. §§ 124.74(b)(1)
and 124.75(a)(1).4 We construe this to mean that the
1’ With respect to appeals under Part 124 regarding NPDES permits,
Agency policy is that most permits should be finally adjudicated at the
Regional level. 44 Fed. Reg. 32,887 (June 7, 1979). While the Board
has broad power to review decisions in NPDES permit cases, the
Agency intended this power to be exercised “only sparingly.” Id.
2 40 C.F.R. § 124.74(b)(1) provides that requests for evidentiary
hearings must:
State each legal or factual question alleged to be at issue, and
their relevance to the permit decision, together with a
designation of the specific factual areas to be adjudicated * * *.
Information supporting the request or other written documents
relied upon to support the request shall be submitted as
required by § 124.73 unless they are already part of the
administrative record required by § 124.18.
Under 40 C.F.R. § 124.75(a)(1):
(continued...)
A48
RA must ensure that there is a genuine issue of material
fact.” This requirement is very similar to the
requirement set forth in Rule 56 of the Federal Rules of
Civil Procedure regarding summary judgment.” Rule
56 provides that summary judgment:
shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and
15/ (...continued)
the Regional Administrator shall decide the extent to which, if
at all, the request shall be granted, provided that the request
conforms to the requirements of § 124.74, and sets forth
material issues of fact relevant to the issuance of the permit.
18! See In re Miami-Dade Water and Sewer Authority Department,
NPDES Appeal No. 91-14, at 17 (July 27, 1992); In re City of
Jacksonville, District II Wastewater Treatment Plant, NPDES Appeal
No. 91-19, at 2 (August 4, 1992).
We note that under 40 C.F.R. § 124.84 any party to an evidentiary
hearing has the right to move for summary determination on the basis
that there is no genuine issue of material fact for determination.
Today’s decision does not affect this right. That is, where the Region
concludes that there is a need for an evidentiary hearing on a material
issue of fact, summary disposition may still be appropriate. For
example, in the present context, if PRASA had presented sufficient
facts to warrant an evidentiary hearing, and the Region failed to
present any relevant evidence to rebut PRASA’s evidence, PRASA
would be free to request that the Presiding Officer decide am or all
issues by summary determination.
17’ Although the Federal Rules do not apply to these proceedings, we
have, in certain circumstances, relied on these rules for guidance. See
In re Wego Chemical & Mineral Corporation, TSCA Appeal No. 92-4,
at 13-14 & n.10 (EAB, Feb. 24, 1993).
A49
admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law.
We think that the standard established under Rule 56
provides useful guidance for the Board in evaluating
whether the Region must grant an evidentiary hearing.
In construing Rule 56, the Supreme Court has explained
that in order to defeat a motion for summary judgment, a
party must demonstrate that an issue is both "material" and
"genuine." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1985). A factual dispute is material where,
under the governing law, it might affect the outcome of the
proceeding. The issue here -- whether PRASA has
Satisfied the requirements of CWA § 301(h)(2) and 40
C.F.R. § 125.61(f) -- is material. Thus, the only question
we must resolve is whether PRASA has raised a "genuine"
issue.
A factual dispute is genuine if the evidence is such that
a reasonable finder of fact could return a verdict in either
party’s favor. Id. If so, summary judgment is
inappropriate and the issue must be resolved by a finder of
fact. If, on the other hand, the evidence, viewed in a light
most favorable to the non-moving party, is such that no
reasonable decisionmaker could find for the nonmoving
party, summary judgment is appropriate. See Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); 6 J.
Moore’s Federal Practice | 56.15[1] (stating that summary
judgment is appropriate when a party is entitled to
judgment as a matter of law). In such a case, Rule 56
provides a mechanism for avoiding the unnecessary delay
ASO
and expense of a full blown trial. 6 J. Moore’s Federal
Practice 4 56.04[1].
Under Rule 56, the determination of whether or not
summary judgment is appropriate also implicates the
substantive evidentiary standard of proof in a particular
proceeding. Anderson, supra, at 252. That is, in deciding
whether a genuine factual issue exists, the judge must
consider whether the quantum and quality evidence is such
that a finder of fact could reasonably find for the party
producing that evidence under the applicable standard of
proof. As the Court explained:
Whether a jury could reasonably find for either party
* * * cannot be defined except by the criteria
governing what evidence would enable the jury to
find for either the plaintiff or the defendant: It
makes no sense to say that a jury could reasonably
find for either party without some benchmark as to
what standards govern its deliberations and within
what boundaries its ultimate decision must fall, and
these standards and boundaries are in fact provided
by applicable evidentiary standards.
Id. at 254-55. Thus, in determining whether a genuine
issue exists, a judge must decide whether a finder of fact,
applying the applicable evidentiary standard, could
reasonably find for either party. Jd. at 255; see also First
National Bank of Arizona v. Cities Service Co., 391 U.S.
253, 288-90 (1968).
Because the inquiry in the present context, i.e., whether
a party has raised a genuine issue of material fact, is for
Our purposes virtually identical to that in the summary
AS]
judgment context, we believe that the Standard articulated
by the Supreme Court in Anderson should be applied in the
context of evidentiary hearing requests as well. Thus. in
the context of an evidentiary hearing request, a genuine
issue of material fact exists only if a party requesting an
evidentiary hearing presents sufficient probative evidence
from which a reasonable decisionmaker could find in that
party's favor by a preponderance of the evidence !® For
the reasons stated below, we conclude that the PRASA has
failed to meet this standard and thus its burden with
respect to its evidentiary hearing request.
In order to receive a permit under CWA § 301(h), an
applicant has the burden of demonstrating by a
preponderance of the evidence that it meets each of the
criteria listed in CWA sections 301(h)(1) through (h)(9)
and the implementing regulations. See 40 C.F.R.
§ 125.60(g). Section 301(h)(2) of the Clean Water Act
authorizes the Administrator to issue a permit modifying
the secondary treatment requirements imposed under CWA
§ 301(b)(1)(B) if the applicant demonstrates that:
[The discharge of pollutants in accordance with
such modified requirements will not interfere, alone
1 Although the Act does not specify a standard of proof against
which the Agency must review the evidence presented in support of the
modified permit application, the traditional standard of proof for
informal Agency proceedings (such as a permit determination) is a
“preponderance of the evidence." See In re Penzoil Exploration and
Production Company, UIC Appeal No. 88-1, at 13 (CJO, Nov. 19,
1990). This standard of proof is also applicable to NPDES evidentiary
hearings. In re City of Fayetteville, Arkansas, NPDES Appeal No.
88-1, at 7 (CJO, Dec. 22, 1988).
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or in combination with pollutants from other
sources, with the attainment or maintenance of that
water quality which assures protection of public
water supplies and the protection and propagation of
a balanced indigenous population of shellfish, fish,
and wildlife, and allows recreational activities, in
and on the water[.]
Where, as here, receiving waters are already stressed due
to pollution from sources other than the applicant’s
discharge, the applicant has the burden of demonstrating,
among other things, that it will not contribute to, increase,
or perpetuate such stressed conditions, and will not retard
recovery of the biota if levels of pollution from other
sources decrease in the future. 40 C.F.R. 125.61(f). In
the 1979 preamble to Part 125 Subpart G, the Agency
made clear that it would be difficult to meet this
burden.’ The preamble states:
As a practical matter, it will be extremely
difficult for most applicants discharging into stressed
waters to demonstrate that their discharge will meet
the requirements of section 125.61. As a factual
matter, the discharge of additional pollutants into an
already polluted marine environment virtually always
12’ We note that portions of the regulations implementing CWA
§ 301(h) promulgated in 1979 were invalidated by the United States
Court of Appeals for the District of Columbia Circuit in 1981. See
Natural Resources Defense Council, Inc. v. E.P.A., 656 F.2d 768
(D.C. Cir. 1981). The Agency promulgated final amendments to the
regulations implementing section 301(h) in 1982. 47 Fed. Reg. 53,666
(November 26, 1982). The language of the stressed waters
demonstration, however, has remained virtually unchanged.
A53
increases or contributes to adverse impact; it is
extremely difficult, as a practical matter, to
demonstrate that it does not.
44 Fed. Reg. 34,806 (June 15, 1979). According to the
preamble, in order to make this demonstration, the
applicant must:
(1) document the difference between the marine
communities that currently exist in the Vicinity of its
outfall and the balanced, indigenous population that
would exist in the absence of all sources of
pollution; (2) demonstrate that its discharge is not
contributing to the present biological degradation
associated with stressed waters by comparing the
marine populations at the outfall site with those at a
similarly stressed control site (absent its discharge);
and (3) demonstrate that its discharge will not
contribute to further degradation of the biota if the
level of pollution from other sources increases, and
will not retard the recovery of the biota if the level
of pollution from other sources decreases. This
latter showing, which requires a predictive analysis
of biological responses to future pollution, is so
difficult that EPA is unable to provide a specific
guidance or suggested analytical procedures for
making this demonstration.
Id. In the present case, the data submitted by PRASA fail
to satisfy the requirements of § 125.61(f).
PRASA does not dispute that the coral reefs
surrounding the outfall are already stressed due to heavy
sediment loadings. Rather, the dispute concerns the
AS4
impact the modified discharge will have on these
conditions. According to PRASA, this impact will be
insignificant compared to the total sediment loadings from
the Rio de Anasco. In this regard, the 1987 M & E Study
States that out of a total sediment loading of 65,000 tons
per year, "the proposed discharge of primary treated
effluent will contribute approximately 850 tons per year *
* * " M & E Study at 4-24. The Study concludes that
this amount of sediment will have no measurable effect on
current conditions when compared to existing sediment
loadings. Id.
As stated above, a discharger into already stressed
waters must demonstrate, among other things, that its
modified discharge would not retard recovery of the biota
if existing sources of pollution were to decrease in the
future. 40 C.F.R. § 125.61(f)(3). The studies submitted
by PRASA do not even purport to make such a finding.
Rather, the studies focus on the relative present
contribution of the discharge when compared to total
sediment loadings. While PRASA’s relative
20/ We note that Chapter 4 of the 1987 M & E Study states:
It is unlikely that intensive agricultural practices on the steep
hills of the Rio de Anasco basin that have continued for over
three centuries will be terminated or even inhibited, since
agriculture continues to be one of the main features of the rural
Puerto Rican economy. Consequently, the continued erosion
and sedimentation events, * * * will continue to contribute very
large and significant quantities of sediments and nutrients into
the Bahia de Anasco and thus limit any theoretical development
of the coral communities.
(continued...)
A55
contribution may be small at the present time compared to
other sediment sources, it does not follow that PRASA’s
discharge will not retard recovery in the future if these
other sources decrease. In such a situation, PRASA’s
contribution may indeed retard the speed of any recovery.
Because the data submitted by PRASA do not attempt to
address this issue, PRASA has failed to make the
demonstration required under the regulation and has thus
failed to present a genuine issue for a hearing. Failure to
provide any analysis on future impacts was sufficient for
the Region to deny the § 301(h) permit.
We note, further, that PRASA’s attempt to create a
genuine issue of material fact with regard to its present
contribution also fails to meet the demonstration required
under 40 C.F.R. § 125.61(f)(1). While PRASA’s
contribution to existing stresses may be small compared to
input from the Rio de Anasco, the facts proffered by
PRASA in the 1987 M & E Study fail to demonstrate that
850 tons per year of additional pollutants will not
contribute to existing conditions. As the Region has noted
although PRASA’s discharge may not be sufficient, in and
of itself, to significantly impact the coral reefs if other
stresses did not exist, this is not the showing required by
the regulations. See Response to Comments, at 14 (Exh. 8
to Region’s Response). Rather, PRASA must demonstrate
>
20/ (...continued)
M & E Study, at 4-26. Although a decrease in pollution from human
perturbations other than PRASA’s discharge may be unlikely, the
regulations require that PRASA demonstrate that its discharge will not
retard recovery if such a decrease should occur in the future. PRASA
has therefore failed to make the demonstration required under
§ 125.61(f)(3).
AS6
by a preponderance of the evidence that it will not
contribute to existing stresses. PRASA has not proffered
sufficient facts to allow a reasonable decision maker to
find in its favor in this regard.
The 1992 Report, prepared by the United States
Geological Survey (USGS), confirms our analysis.
Contrary to PRASA’s contentions, the USGS Report does
not demonstrate that the modified discharge will not
contribute to present conditions. This report, submitted in
support of PRASA’s evidentiary hearing request, assesses
the impact of the actual operation of the plant on the
surrounding marine environment. Appendix 3 to this
report states, in part:
[C]oral cover, gorgonian density and other
parameters were lower in the stations closest to the
outfall; therefore, the hypothesis that there is an
effect by the sewage outfall on the coral reef benthic
environment is supported or, at least, it is not
invalidated. The available evidence, however, does
not prove the hypothesis of damage by the outfall
either, mainly because of the presence of other
pollution sources. Further detailed work with
additional stations is needed to assess the hypothesis
of damage by the outfall.
Coral Diversity and Cover in Reefs off Mayaguez Bay:
Relation to the Mayaguez Sewage Treatment Plant Outfall,
Appendix 3 to 1992 Report, at 11. Thus, according to this
report, further study would be needed to prove that
PRASA’s proposed discharge does or does not have an
impact on existing conditions. Because neither of these
studies demonstrate that PRASA’s proposed discharge will
A5S7
not contribute to presently existing stresses, there is no
genuine issue of material fact warranting an evidentiary
hearing.
We recognize that § 301(h) permit applicants face an
extraordinary burden. However, this is consistent with the
1979 preamble to Part 125, Subpart G which indicates that
it will be "extremely difficult" to meet these requirements.
In fact, the Agency Originally proposed to prohibit any
modified discharges into marine waters that were already
Stressed. See 44 Fed. Reg. 34,806 (June 15, 1979). In
response to comments, however, the Agency revised this
section to allow such discharges if the applicant could
make the stressed waters demonstration noted above. 2/
2V We note that in Arkansas v. Oklahoma, 112 S.Ct. 1046, 1057-58
(1992), the Supreme Court rejected an interpretation of the Clean
Water Act that would prohibit any discharges that “might” contribute
to further degradation of waters already in violation of a State water
quality standard. That case, however, involved the interpretation of an
Oklahoma water quality standard Prohibiting “degradation” of water
quality. The Court agreed with the Agency that this standard should
be interpreted to mean that the State requirement would only be
violated if the discharge would cause an actual “detectable” violation of
Oklahoma’s water quality standards. /d. at 1052.
The case before us, however, does not involve the violation of a
specific water quality standard. Rather, the regulation implementing
CWA § 301(h)(2) requires that permit applicants seeking to discharge
that they will not contribute in any Way to existing environmental
conditions rather than to the violation of a specific environmental
Standard. Importantly, the § 301(h) regulations, 40 C.F.R.
(continued...)
AS58
Thus, the requirement that applicants seeking § 301(h)
permits make the demonstration noted above, reflects the
Agency’s great reluctance to grant § 301(h) waivers to
facilities discharging into already stressed waters.
In this case, the data submitted by PRASA in support of
its § 3U1(h) application is insufficient to satisfy the stressed
waters demonstration required by 40 C.F.R. § 125.61(f).
To support it hearing request, PRASA needed to allege
facts demonstrating that the modified discharge would not
retard recovery of the biota if the amount of pollution from
other sources decreases in the future. In addition, it
needed to show that the discharge would not contribute in
any way to the already stressed condition of the coral reefs
in the vicinity of the discharge. PRASA’s reliance on
studies indicating that the impact of the discharge is
minimal as compared to other sources or at best uncertain,
are insufficient to satisfy PRASA’s burden. PRASA has
therefore failed to raise . genuine factual issue warranting
an evidentiary hearing.» As the Supreme Court
21/ (...continued)
the present case is therefore very different from the showing identified
in Arkansas v. Oklahoma.
2 This is not to say that there is no case where discharges into
stressed waters would be allowed. Where, for example, the receiving
waters are stressed by pollutants other than those in the proposed
discharge and such pollutants do not contribute to existing stresses, a
§ 301(h) permit may be appropriate.
23’ We note that although PRASA cites the Tetra Tech Report, see
supra note 7, in support of its position that the modified discharge will
not contribute to existing stresses on the surrounding coral
(continued...)
A59
explained in Anderson, supra, 477 U.S. at 249, there is no
genuine issue for a trier of fact where the party opposing
summary judgment fails to adduce sufficient evidence to
Support a verdict in that party’s favor. Accordingly, the
Region properly concluded that PRASA failed to adduce
facts sufficient to raise a genuine issue of material fact.
The Region therefore properly denied the evidentiary
hearing request.
B. Compliance with CWA §§ 301(b)(1) and (b)(9)
As additional grounds for denying the evidentiary
hearing request, the Region concluded that PRASA failed
to meet the requirements of CWA §§ 301(h)(1) and
301(h)(9). Under Section 301(h)(1) and 40 C.F.R.
§ 125.60, the applicant must demonstrate that there is an
applicable water quality standard specific to the pollutants
for which the modification is sought, and that the applicant
complies with these standards. Section 301(h)(9) requires
that the proposed modified discharge receive at least
primary or equivalent treatment and also meet the toxicity
criteria established under CWA § 304(a)(1). In its petition
for review, PRASA raises numerous objections to the
Region’s analysis and conclusions with regard to these
provisions. However, because we agree with the Region
23/ (...continued)
communities, see Supplemental Petition at 60 & n.169, that report, at
best, indicates that the impact of the proposed discharge on the
surrounding coral reefs will be uncertain. The report concludes that
“based on the limited data available for review and the co
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