38 F.3d 43 (1st Cir. 1994), 94-1074, Adams v. United States E.P.A.

Docket Nº:94-1074.
Citation:38 F.3d 43
Party Name:Edwin F. ADAMS, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:October 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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38 F.3d 43 (1st Cir. 1994)

Edwin F. ADAMS, Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 94-1074.

United States Court of Appeals, First Circuit

October 25, 1994

Heard Aug. 5, 1994.

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Richard A. Kanoff, for petitioner.

Eileen T. McDonough, Environmental Defense Section, U.S. Dept. of Justice, with whom Lois J. Schiffer, Acting Asst. Atty. Gen., Environmental & Natural Resources Div., Jeffry T. Fowley, Office of Regional Counsel, and Stephen J. Sweeney, Office of General Counsel, U.S. Environmental Protection Agency, were on brief, for respondent.

Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit Judges.

TORRUELLA, Chief Judge.

Petitioner Edwin F. Adams requests review of final action taken by the United States Environmental Protection Agency ("EPA" or "the Agency"). Adams challenges the EPA's issuance of a National Pollution Discharge Elimination System ("NPDES") permit under the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. Secs. 1251 et seq., for the Town of Seabrook, New Hampshire ("Seabrook"). The NPDES permit allows the discharge of effluent from Seabrook's proposed municipal wastewater treatment facility. Adams alleges that the EPA failed to comply with its obligations under the Ocean Discharge Criteria of the Act, 40 C.F.R. Sec. 125, Subpart M, which require that the EPA not allow "unreasonable degradation" from ocean discharges. Adams has not persuaded us that he was wrongfully denied an evidentiary hearing or that the Agency otherwise erred in its treatment of his objections. We therefore uphold the final action of the EPA and deny Adams' petition for review.

I. BACKGROUND

A. General Overview

Seabrook has undertaken the construction of a municipal wastewater treatment plant ("the plant") to resolve problems caused by failing septic systems within the town. Because

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Seabrook's septic systems were failing, effluent was flowing into Seabrook's coastal waters. This condition increased bacteria levels in the coastal waters, caused closure of coastal areas to shellfishing, and restricted the use of the waters for swimming. Seabrook's proposed plant would collect sewage that would otherwise be released from septic systems into the coastal waters.

The plant, to be constructed on Wright's Island in Seabrook, will consist of a collection and transportation system, a treatment facility, an ocean outfall, and sludge processing facilities. The plant will discharge its treated effluent in approximately 30 feet of water, at a distance approximately 2100 feet from the Seabrook coastline, about 1000 feet north of the New Hampshire/Massachusetts border.

B. The Clean Water Act Statutory and Regulatory Framework

Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" through the reduction and eventual elimination of the discharge of pollutants into these waters. 33 U.S.C. Sec. 1251(a); Town of Norfolk v. United States Army Corps of Engineers, 968 F.2d 1438, 1445 (1st Cir.1992). Under the Act, no pollutant may be emitted into this nation's waters unless a NPDES permit is obtained. Puerto Rico Aqueduct & Sewer Authority v. U.S.E.P.A., 35 F.3d 600, 602 (1st Cir. 1994); see 33 U.S.C. Secs. 1311(a), 1342.

NPDES permits are issued by the EPA or, in those jurisdictions in which the EPA has authorized a state agency to administer the NPDES program, by a state agency subject to EPA review. American Petroleum Inst. v. E.P.A., 787 F.2d 965, 969 (5th Cir.1986); see 33 U.S.C. Sec. 1342. NPDES permits contain 1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls, see 33 U.S.C. Secs. 1311(b)(1)(A), 1314(b); and 2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet "water quality standards." See 33 U.S.C. Secs. 1311(b)(1)(C) and 1312(a). See also American Paper Institute, Inc. v. U.S.E.P.A., 996 F.2d 346, 349 (D.C.Cir.1993).

Additionally, a NPDES permit for a discharge into a territorial sea or the ocean must incorporate Ocean Discharge Criteria ("ODC"). 33 U.S.C. Secs. 1343(a) and (c)(1). See American Petroleum Inst., 787 F.2d at 970. The EPA's ODC guidelines require it to determine, after considering a number of factors, whether a discharge will cause "unreasonable degradation" of the marine environment. See 40 C.F.R. Secs. 125.120-125.124. The EPA will not issue an NPDES permit where it determines that the discharge will cause an unreasonable degradation of the marine environment. See 40 C.F.R. Sec. 125.123(b)-(d). Discharges in compliance with state water quality standards "shall be presumed not to cause unreasonable degradation of the marine environment, for any specific pollutants or conditions specified in the variance or the standard." 40 C.F.R. Sec. 125.122(b).

C. The Procedural Framework

An applicant initiates the NPDES process when it files a permit application providing information regarding the planned facility and its proposed discharges. See 40 C.F.R. Sec. 124.3. The applicant must also provide the EPA with certification from the state in which the discharge originates. 33 U.S.C. Sec. 1341. By its certification, the state confirms that the discharge, as permitted, assures compliance with all applicable state water quality standards and, if necessary, specifies any additional effluent limitations, or other permit conditions, needed to ensure compliance with the state's water quality standards. See id.; 40 C.F.R. Sec. 124.55.

The EPA then prepares and issues a draft permit and explanatory fact sheet. See 40 C.F.R. Secs. 124.6, 124.8, and 124.56. The EPA gives public notice, which initiates a 30-day public comment period. See 40 C.F.R. Sec. 124.10(a)(1)(ii) and (b)(1). During the public comment period, all persons who believe any condition of a draft permit is inappropriate must raise all reasonably ascertainable issues and arguments in support of their positions. 40 C.F.R. Sec. 124.13. During this period, any interested person can request a

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public hearing. 40 C.F.R. Sec. 124.11. After the close of the public comment period, the Regional Administrator determines whether a final permit should be issued, based on the administrative record compiled during the public comment period. See 40 C.F.R. Secs. 124.15, 124.18.

After the EPA issues a final permit decision, an interested party may request an evidentiary hearing to contest the resolution of any questions raised during the public comment period. See 40 C.F.R. Sec. 124.74(a). The Regional Administrator then grants or denies the request for a hearing. See 40 C.F.R. Sec. 124.75(a)(1).

If a Regional Administrator denies a request for an evidentiary hearing, the denial becomes final agency action within thirty days unless an appeal is made to the Environmental Appeals Board ("the EAB"). See 40 C.F.R. Secs. 124.60(c)(5) and 124.91. An EAB order denying review renders the Regional Administrator's previous decision final. See 40 C.F.R. Sec. 124.91(f)(1). Finally, once an EPA permit decision has become final, any interested person may obtain judicial review of the decision by petitioning for review in the Circuit Court of Appeals. 33 U.S.C. Sec. 1369(b)(1).

D. Seabrook's Permit Proceedings

In May 1988, Seabrook applied for an NPDES permit to allow the discharge of the treated wastewater from its proposed plant into the Gulf of Maine. The EPA reviewed the application, and on September 23, 1991, issued a draft permit approving such discharges.

The EPA determined that the proposed discharge would not unreasonably degrade the marine environment. The EPA found that the initial dilution and rapid dispersion of the discharge, combined with the anticipated lack of nonconventional pollutants, would make bioaccumulation of pollutants unlikely. The EPA therefore concluded that the various forms of marine life would not be adversely impacted. While the EPA recognized that a small area around the discharge site would have to be closed to shellfishing pursuant to requirements of the United States Food and Drug Administration, because the Massachusetts Division of Marine Fisheries did not consider this area to be a significant shellfish resource, the EPA concluded that this closure would not represent a significant loss of use. 1 The EPA also noted that the construction of the plant could eliminate most of the closings of nearby bathing beaches necessitated by high concentrations of coliform bacteria that were believed to be caused by the failing septic systems in Seabrook.

In early September 1991, the EPA established a public comment period from September 25, 1991 through October 29, 1991, and scheduled public hearings for October 22 and 23, 1991, in both Seabrook and Salisbury, Massachusetts. On October 23, Adams, who owns a beach-front home on the Gulf of Maine, submitted a written comment presenting eight issues which he believed should be addressed.

On October 26, 1992, the State of New Hampshire certified that the Seabrook permit was consistent with state water quality standards.

On November 13, 1992, the EPA issued Seabrook's NPDES final permit for the treatment plant, after consideration of the administrative record, including the public comments and the state certification.

On December 16, 1992, Adams filed a request for an evidentiary hearing with the Regional Administrator. In this request, Adams raised several issues which he claimed established material issues of fact warranting an evidentiary hearing under 40 C.F.R. Sec. 124.74. Specifically, Adams contended that:

1) The dilution calculations were...

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