# Petition for Writ of Certiorari — Puerto Rico Aqueduct & Sewer Authority v. Environmental Protection Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1148

## Text

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.

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TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ...... 2... 22s ceeeeces i
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JURISDICTION OF THE SUPREME COURT ........ 2
STATUTORY AND REGULATORY PROVISIONS
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(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

a o

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

=o

"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.

a ee

=

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...)

$/

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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).

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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 ¢

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 conservative
assumptions used, it appears that nutrient concentrations in the
proposed discharge may contribute to stresses Currently experienced at
the coral reefs." Tetra Tech Report, at 25 (emphasis added).

A60

that PRASA failed to meet its burden of demonstrating that
the proposed modified discharge would satisfy the
requirements of CWA § 301(h)(2) and 40 C.F.R.

§ 125.61, we do not reach these issues.

Information submitted by a person requesting an
evidentiary hearing under 40 C.F.R. § 124.74 must raise a
genuine issue of material fact. In determining whether a
genuine issue has been raised, the Board adopts the
standard articulated by the Supreme Court in Anderson v.
Liberty Lobby, supra, with regard to motions for summary
judgment. Under this standard, to demonstrate the
existence of a genuine issue of material fact, a person
requesting an evidentiary hearing must present sufficient
probative evidence in support of its positions from which a
reasonable decisionmaker could rule in that person’s favor
under the applicable standard of proof. PRASA has failed
to meet this standard with respect to at least one of the
criteria necessary to support the issuance of a permit under
CWA § 301(h).

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 retard the recovery of the biota if the
level of pollution from other sources decreases in the
future. In addition, it must demonstrate that it will not
contribute to the already stressed conditions of the coral
communities in the vicinity of the discharge. At best,
however, the data submitted by PRASA in support of its
§ 301(h) waiver application indicate that when compared to
existing sediment loadings from the Rio de Anasco,
sediment from the modified discharge will be minimal or
uncertain. However, these data are insufficient to

A6é1

demonstrate that if existing levels of sediment were to
decrease, PRASA’s contribution would not retard recovery
of the biota. In addition, PRASA has failed to
demonstrate that its discharge would not contribute to
existing conditions. PRASA has therefore failed to raise a
genuine issue of material fact warranting an evidentiary
hearing. That is, PRASA failed to present sufficient
evidence from which a reasonable decisionmaker could
decide in its favor. The evidentiary hearing request was
therefore properly denied. Accordingly, review is

denied 24

So ordered.

24’ In the supplement to its petition for review, PRASA contends that

because the full administrative record was only available at Region II’s
headquarters in New York, and because of the high cost of traveling to
New York, PRASA was hindered in its ability to exercise its right of
appeal. PRASA’s Supplemental Petition, at 61-62. PRASA, however,
provides no support for this assertion. While PRASA may have
incurred certain costs in arranging travel to New York, it has failed to
present any evidence that such costs prevented it from obtaining any
portion of the administrative record. In addition, there is no indication
in the record on appeal that PRASA was hindered in any significant
way from exercising its appellate rights. PRASA’s argument in this
regard is therefore rejected.

A62

APPENDIX D

Assessment of the Biota, Sediments,
and Water Quality
Near the Discharge of Primary
Treated Effluent
from the Mayagtiez Regional Wastewater
Treatment Plant:
Bahia de Anasco, Puerto Rico:
December 1990 - January 1991

DRAFT DATA REPORT

Richard M. T. Webb,’ Paul D. Collar,”
William C. Schwab,” and Carlos Goenaga’

This report is preliminary and has not been reviewed for
conformity with the U.S. Geological Survey editorial
standards or with the North American Stratigraphic Code.
Any use of trade, product, or firm names is for descriptive
purposes only and does not imply endorsement by the U.S.
Government. Appendices to this document present the
analytical results and interpretations by contracted parties.
The appendices to this report present the results of
biological studies and analytical rsults of water quality; any
interpretations of the data are those of the contracted
parties and do not necessarily represent the official position
of the U.S. Government.

U.S. Geological Survey, San Juan, Puerto Rico
2/ U.S. Geological Survey, Woods Hole, MA

7’ University of Puerto Rico, Mayagiiez, Puerto Rico

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Mayagiiez Outfall Draft - Webb and others

CONTENTS
Page
Ese ane oy dog 2a ye 9
PO ee Bi eae hwo, odds 11
Description of the problem ............__. 13
Purpose and scope................... 2 14
Previous investigations ................ 16
Description of the ee 17
Explanation and presentation of the OU 65 oi nce eas 18
Side-scan sonar image ................ 19
ok oo ob we oo cn, 22
Macrobenthic Infauna.........,,..2~COC«*” 22
Coral and Fish Surveys .......__. errs: 24
RN 68 5 ved + bok 'o soc ge 28
NN 66. bo sels Sk beac ls 30
Rs eo Wad eed wk ow... 32
I i ete te 35
sgt an do ga nnn: 42
Acknowledgements ...................._. 43
siinpresien ee ee re 44

Appendix 1 - Abundance and Diversity of
Macrobenthic Infauna Collected from the
Bahia de Afiasco by Robert Castto...........

Appendix 2 - Taxonomic Composition,
Abundance, and Diversity Patterns of
Fish Communities in the Reefs of
Northern Mayagiiez Bay, Puerto Rico
WF OO eee cen.

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Mayagiiez Outfall Draft - Webb and others

Appendix 3 - Coral Diversity and Cover in
Reefs Off Mayagtiez Bay: Relation to the
Mayagtiez Treatment Plant Outfall
At ee eae ea

Appendix 4 - Data Report of Chlorophyll
Analysis and Extinction Coefficient as
a Part of the Project Environmental
Assessment in the Vicinity of the
Mayaguez Ocean Outfall by Fernando
GD ope so Nae a ew ore ak ee ees

Appendix 5 - Toxicological Evaluation of a
Primary Effluent Biomonitoring Support
Program: Mayagiiez Wastewater Treatment
Plant, February 1991, by Envirosystems
PURINE 066 8 eee C REE 4 0 TS

Appendix 6 - Analytical Test Results for
Water Quality Sampling, 1991, Rocky
Mountain Analytical Laboratory ..............

xk * *

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Mayagiiez Outfall Draft - Webb and others

Assessment of the Biota, Sediments
and Water Quality
Near the Discharge of Primary
Treated Effluent
from the Mayagiiez Regional
Wastewater Treatment Plant:
Bahia de Afiasco, Puerto Rico:
December 1990 - January 1991

by

Richard M. T. Webb, Paul D. Collar,
William C. Schwab, and Carlos Goenaga

ABSTRACT

The Mayagiiez Regional Wastewater Treatment Plant
has been discharging primary treated effluent into the
Bahia de Afiasco since 1987. A multidisciplinary study of
the bay was conducted during December 1990 and January
1991 to assess changes in the marine environment resulting
from the discharge. Evidence of impact on the marine
environment by the outfall was not observed in side-scan
sonar imagery, the distribution and diversity ofthe marine
biota, nor in the composition of the sediments in the bay.
Waters sampled at the limit of the zone of initial dilution
in the bay met the United States Environmental Protection
Agency (EPA) criteria for marine acute and chronic
exposure in addition to the EPA standards for marine
waters where organisms may be harvested for
consumption. Water quality also met all Puerto Rico
Environmental Quality Board standards.

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Mayagtiez Outfall Draft - Webb and others

The diffuser is located in 11 meters of water about
1700 meters offshore. The immediate area around the
outfall is characterized by muddy sediments deposited on
an irregular bedrock surface. A high-resolution sidescan-
sonar image Clearly defined the outfall’s position relative
to the coral reefs and unconsolidated sediments deposited
in the bay. Seismic reflection lines reveal reeflike
structures buried underneath the fine sediments deposited
between the shelf-edge reefs and shore.

The physical environment and biota in the Bahia de
Afiasco, including the area around the outfall, continue to
evolve in response to sediments, contaminants, and
nutrients discharged from the rivers and other industrial
point-sources discharging directly into the Bahia de
Mayagiiez and other waters influencing the Bahia de
Afiasco. Hard bottom communities in the interior parts of
the bay, including two sites reported here, show signs of
being stressed by sediments and nutrient loads discharged
by the Rio Grande de Afiasco and other point sources in
the Bahia de Mayagtiez. However, 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 of 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.
Coverage and diversity of hard corals surveyed at two
previously studied sites located in the reefs Manchas

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Mayagiiez Outfall Draft - Webb and others

Interiores and Manchas Exteriores, showed no significant
differences between 1985 and 1990.

INTRODUCTION

In January 1991, water quality was analyzed for the
Mayagiiez Regional Wastewater Treatment Plant
(MRWTP) waste stream, the Rio Grande de Anasco, the
Rio Yagiiez, and the marine waters off the west coast.
The results are presented here along with an analysis of the
sediments and biota of the Bahia de Afiasco in order to
document the impact of the MRWTP ocean outfall
discharge on the marine environment. The MRWTP is
one of 10 large regional facilities recently built by the
Puerto Rico Aqueduct and Sewer Authority (PRASA) to
accept and treat large volumes of point-source discharges.
The Plant was designed to treat a maximum of 21 million
gallons of per day (Mgal/d) of wastewater before
discharging it into the Bahia de Afiasco through an outfall
located 1700 m offshore of the town of Mani (fig. 1).

Section 301(b)(1)(B) of the Clean Water Act (the Act),
33 U.S.C. Section 1311(b)(1)(B) enforced by the
Environmental Protection Agency (EPA) required that all
publicly owned treatment works in existence on July 1,
1977 were required to meet effluent limitations based upon
secondary treatment (biochemical oxygen demand,
suspended solids, and Ph) (EPA, 1986). Section 301(h),
which amended the Act in 1981, provides for the discharge
of primary treated sewage into marine waters if the
applicant can demonstrate to the satisfaction of the EPA
Administrator that the discharge will comply with all

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Mayagiiez Outfall Draft - Webb and others

statutory and regulatory criteria. The criteria are
necessarily strict to protect not just humans buy the myriad
of life in and on the water.

The original application for a waiver of secondary
treatment requirements for the MRWTP was submitted in
1979 during the planning stages for the new regional plant.
The original application for a water quality certificate was
denied by the Environmental Quality Board (EQB) of
Puerto Rico in 1983, followed by the tentative denial of
the waiver application by the EPA in 1984. A revised
application based on an improved discharge involving
screening, grit removal, primary sedimentation and
chlorination was submitted by PRASA in 1985. The EPA
denied tentatively this second round application in 1986,
citing noncompliance with the Commonwealth’s mixing
zone standards, and failure to demonstrate that the
discharge would not affect coral reefs in the area nor
interfere with the protection and propagation of a balanced
indigenous population of marine life. PRASA then
conducted additional water-quality sampling of the existing
raw sewage discharge, a flow-through bioassay, detailed
surveys of coral communities, and revised flow estimates
and diffuser design. The data was submitted in 1987. The
EPA issued their final NPDES permit for Mayagiiez plant
in September 1987, specifying secondary treatment levels
for the discharge. In order to comply with the BOD load
limitations for secondary treatment, the discharge of the
primary treatment plant, and its inherently lower BOD
removal rates, is limited to approximately 9 million gallons
per day (Mgal/d). The plant began discharging primary-
treated wastewater through the outfall at the end of 1987.

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Mayagiiez Outfall Draft - Webb and others

Description of the Problem

The marine communities in the Bahia de Afiasco, and in
the Caribbean in general, have been vulnerable to regional
impacts of undetermined cause over the past decades,
previous to the existence of the Mayagiiez plant. Over the
last decade, both a massive sea urchin die-off (Vicente and
Goenaga, 1984) and wide-spread coral bleaching (Williams
and others, 1987) have been documented in the western
Atlantic. Previously healthy colonies of the elkhorn coral
Acropora palmata have disappeared from the reefs in the
Bahia de Afiasco during the last 20 years (Morelock and
others, 1983). The reefs in the Bahia de Aflasco are
vulnerable to the sediments and contaminants discharged
by the Rio Grande de Afiasco and the Rio Yagiiez,
sediments and contaminants discharged by the outfall,
sediments resuspended during storm events, and are
susceptible to changes in water quality. The most
damaging factors for coral reefs are nutrients, particulate
Organic matter, and siltation resulting in changes in habitat
(Banner, 1974; Johannes, 1975; Kinsey and Davies, 1979:
Pastorok and Bilyard, 1985; Marszalek, 1987). However,
the degree of impact is not linear. The growth rates of
certain coral species benefit from increased nutrients and
particulate organic matter up to a certain level (Tomascik
and Sander, 1985). Site specific data is essential to
determine the degree of potential impact of a sewage
discharge on the Surrounding community. This study
provides the first observations of effluent quality and
conditions in the bay since the regional facility came on
line.

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Mayagtiez Outfall Draft - Webb and others

Purpose and scope

The U.S. Geological Survey (USGS) in cooperation
with PRASA conducted a short-term assessment of
environmental conditions in the vicinity of the ocean
outfall. A program was designed to document temporal
and spatial changes in the biota, sediments, and water
quality existing in the immediate vicinity of the outfall and
throughout the Bahia de Afasco. The scope of the
program was limited to the following tasks:

@ Describe the bottom morphology of the Bahia de
Afiasco in order to define the precise extent and
location of hard bottom capable of supporting coral
communites.

@ Sample the macrobenthic infauna at 8 sites that were
previously surveyed by PRASA (1985), and report on
their present species abundance and diversity.

@ Survey fish and coral communities at 2 previously
reported sites, MSG-1 and MSG-2, at 1 new station
near the outfall, and at 1 control station located away
from the influence of the rivers and the outfall. Report
on the species abundance and diversity.

@ Core heads of the star coral Montastrea annularis at a
site located near the outfall and at a control site located
away from the influence of the rivers and the outfall.
Identify and process samples from parts of the
aragonitic skeleton grown over the last 7 years. Report

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Mayagiiez Outfall Draft - Webb and others

on the observed growth rates, trace metal content, and
stable isotopes of carbon and oxygen.

© Sample surface sediments near the outfall and
throughout the bay. Core sediments near the outfall, in
the deltas of the Rio Grande de Afiasco and the Rio
Yagiiez and in a sand channel located in the coral reefs.
Report on grain size, total Organic material, trace
metals, mineralogy, percent carbonate, and
accumulation rates.

© Sample the influent, effluent, rivers, and receiving
waters and analyze for the full array of priority
pollutants, total metals, general inorganics,
radionucliides, and non-conservative properties. Report
the findings.

© Conduct acute and chronic bioassays using whole
effluent and report the results. The bioassays can be
used to determine mixing zone dilution requirements.
That task is not included in this report.

© Using observed changes in the sediments and biological
communities in the Bahia de Afiasco discuss if any
recent changes can be logically attributed to the outfall.

SUMMARY

The Mayagitiez Regional Wastewater Treatment Plant is
discharging primary treated effluent into the Bahia de
Afiasco. The oceanographic conditions appear to favor
good mixing in unstratified waters. The populations of

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Mayagiiez Outfall Draft - Webb and others

macrobenthic infauna living in the soft-bottom around the
outfall are balanced and diverse though much less in
number than previous surveys. This probably reflects on
the different samplers used. The coral and fish
communities reflect the different areas of each site.
Though all were at similar depths, the El Negro site was
typical of a forereef community with lots of soft corals and
few fish, the site near the outfall appeared to be a lagoonal
reef community before being stressed by sediments and
nutrients in past years. 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. Sediment
deposition patterns continue to reflect the dominance of the
Rio Grande de Afnasco 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.

* * K *

A73

APPENDIX E

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ENVIRONMENTAL APPEALS BOARD

IN THE MATTER OF: : Docket No.

Mayaguez Regional
Sewage Treatment
Plant
Puerto Rico Aqueduct
and Sewer Authority
P.O. Box 7066
Barrio Obrero Station
Santurce, Puerto Rico
00916

NPDES Permit
No. PROO23795

EPA-CWA-II-91-41

Permit Modification
Pursuant to Section 301(h)
of the Clean Water Act

** k *

II. ISSUES PRESENTED FOR REVIEW RELATING
TO THE DENIAL OF THE REQUEST FOR AN
EVIDENTIARY HEARING

A. The Determination of EPA-Region II that No
Material Issues of Fact Were Raised by PRASA in
Its Request for an Evidentiary Hearing with Respect
to Section 301(h)(2) is Clearly Erroneous

A74

The Regional Administrator for Region II has denied
PRASA’s request for an evidentiary hearing concerning
PRASA’s section 301(h) waiver application because
PRASA, allegedly, failed "... to raise material issues of
act with regard to sub-section 301(h)(2) ...", and thus the
Regional Administrator is required to deny the hearing
request "on all issues."*’ PRASA submits that it did raise
material issues of fact?’ regarding subsection 301(h)(2),
and thus the hearing request should have been granted.
The conclusion of EPA-Region II that material issues of
fact concerning subsection 301(h)(2) were not raised by
PRASA in its hearing request is clearly erroneous.

PRASA stated in its request for an evidentiary hearing
that the information submitted with its 301(h) waiver
application demonstrates that the proposed discharge” of
the plant will not interfere with the protection and
propagation of a balanced indigenous population of marine
life, including coral communities at Manchas Exteriores

‘Letter from Constantine Sidamon-Eristoff to Maria Margarita
Irizarry (July 23, 1992) (final decision on PRASA’s request for an
evidentiary hearing) at 9. Hereinafter this document will be referred
to as "Final Decision on Hearing Request.”

>’ PRASA agrees with EPA-Region II that the proper legal standard
for determining if an evidentiary hearing should be granted is whether
the requester has raised a material issue of fact respecting the intial
decision of the Regional Administrator.

© At the time of the submission of the application and all
supplemental information, the Mayaguez RWWTP was in the planning,
design and construction phases. It did not begin operations until after
the closure of the last public comment period.

A75

and Manchas Interiores.” Section 30i(h)(2) of the CWA
States EPA may modify the requirements of section
301(b)(1)(B) of the CWA if the applicant demonstrates,
Inter alia, that the discharge of pollutants which receive
only primary treatment "will not interfere, alone or in
combination with pollutants from other sources, with the
containment or maintenance of that water quality which
assures protection of public water supplies and the
protection and propagration of a balanced, indigenous
population of shellfish, fish, and wildlife, and allows
recreational activities, in and on the water ...." PRASA
relied upon studies which were conducted of the marine
environment at and in the vicinity of the proposed location
of the diffuser/outfall, and submitted cn behalf of PRASA
during the 1987 public comment period for this assertion.

* eK

Based on the studies done for PRASA and the
conclusions and findings set forth therein, PRASA stated
in its Request for a Evidentiary Hearing that the discharge
at the Mayaguez RWWTP "will not interfere with the
protection and propagation of a balanced, indigenous
population of marine life including the coral reefs at
Manchas Exteriores and Manchas Interiores. "12
Moreover, based on the studies, PRASA stated in its
request that the discharge at the Mayaguez RWWTP would

” PRASA’s Request For an Evidentiary Hearing Submitted in In the
Matter Mayaguez Regional Sewage Treatment Plant, Docket No. EPA-
CWA-II-91-41, at 7916. Hereinafter referred to as "“Evidentiary

Hearing Request.”

1’ Evidentiary Hearing Request { 16.

ae

A76

not contribute to, increase or perpetuate the conditions
observed in the bay, contribute to further degradation of
the marine biota, or retard the recovery of the marine biota
if the level of human perturbation from sources of
sediment in the watershed decreases.’ PRASA relied

not only on the studies submitted by it in 1987 but also on
the February 1992 Report by the U.S. Geologic Survey,
which it appended to its request for an evidentiary hearing
for its assertions.“ The February 1992 Report assesses
the impact of the actual operation of the plant on the

surrounding marine environment.

Section 125.61 of Title 40 of the Code of Federal
Regulations describes how an applicant demonstrates that
its discharge assures the propagation and protection of a
balanced, indigenous population of biota. The proposed
discharge must allow for the attainment or maintenance of
that water quality which assures protection and propagation
of a balanced indigenous population of biota.’ A
balanced, indigenous population of biota must exist
immediately beyond the zone of initial dilution of the
discharge and in all areas beyond the zone of initial
dilution where marine life is actually or potentially affected

LW Td. at $19.

12/ R. Webb, P. Collar, W. Schwab and C. Goenaga, Assessment of
the Biota, Sediments, and Water Quality Near the Discharge of
Primary Treated Effluent from the Mayaguez Regional Wastewater
Treatment Plant: Bahia de Afiasco, Puerto Rico, December 1990 -
January 1991 (1992). Hereinafter referred to as the "February 1992

Report."

1! 40 C.F.R. § 125.61(c)(1).

A77

by the proposed discharge.’ If either of the conditions
described above does not exist due to conditions resulting
from human perturbations other than the proposed
discharge, the applicant must demonstrate that its proposed
discharge will not:

1) contribute to, increase or perpetuate existing
conditions;

2) contribute to further degradation 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. !*/

EPA-Region II denied the request for an evidentiary
hearing on the ground that PRASA had failed to raise a
material fact with respect to the requirement of section
301(h)(2) of the CWA. Specifically, EPA-Region II
concluded that PRASA’s 1987 submittal stated that the
coral communities are stressed due to natural conditions
and not human disturbances.” This finding is clearly

18’ 40 C.F.R. § 125.61(c)(2).
1! 40 C.F.R. § 125.61(f).
= Final Decision on Hearing Request at 9.

1! Id. at 5. EPA-Region II acknowledges on page 8 that PRASA’s
submission supports the conclusion that human and natural disturbances
are stressing the corals.

A78

erroneous. PRASA’s submission states that the coral
communities are stressed due primarily to the heavy
sediment loading from the Rio de Anasco which results
from natural events and extensive agriculture in the
watershed.”

EPA then concludes that the 1987 submittal does not
address the demonstration required by 40 C.F.R.
§ 125.6(f).4% This conclusion is clearly erroneous. The
1987 submittal contained data concerning sediment loading
and nutrient loading from the Rio de Afasco watershed
and the proposed discharge.2” The 1987 submittal
included an analysis of that data, and includes data on
other factors which might effect water quality such as ph
and dissolved oxygen.?” Finally, the submittal sets forth
conclusions concerning the impact of the proposed
discharge on the marine biota given the existing
conditions, and the likely impact of the proposed discharge
if the human disturbances were increased or decreased in
any significant way .~

18’ April 1977 Report at 4-16 and 4-24.
1 40 C.F.R. § 125.61(c)(1).

20/ See for example April 1977 Report at Chapter 6.

21’ Id. Chapter 6.

2/ Id. Chapters 4 and 6.

A79

EPA-Region II also concluded, erroneously, that the
1992 Report®’ which was appended to PRASA’s Request
for an Evidentiary Hearing, failed to support PRASA’s
Statement in its hearing request that the actual discharge of
the plant will not impact the coral communities.’ The
conclusion of EPA-Region II is clearly erroneous. EPA
has relied on selective quoting of conclusions in the
report. EPA relied upon a quote from Appendix 3 of
the report. The full quote is:

In conclusion, coral 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.

2! See p. 14 infra for a discussion of the legal status of this study.
On the one hand EPA-Region II has relied upon the study in deciding
whether to grant the request for hearing; however, elsewhere in its
decision on the hearing request it takes the position that the study is
not part of the administrative record and need not be considered by the
Agency.

4 Final Decision on Hearing Request at 8-9.
Final Decision on Hearing Request at 8.

26/ February 1992 Report, Appendix 3, p. 11.

A80

Moreover, EPA-Region II conveniently ignored the
following:

Coral abundance and diversity were greatest at site
MSG-2, and lowest near the outfall. Comparing the
species observed at stations MSG-1 and MSG-2 with
the 1985 study {submitted by PRASA on ‘Jj no
significant difference in hard coral cover was
documented. The station nearest the outfall, MO-5,
is obviously degraded.... Diver transects reported in
[PRASA 1987 submittal] before the outfall was
installed, documented that patch and fringing reefs
near the sh

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0895%3A1. Public record. Not legal advice.