Manasota-88, Inc. v. Thomas, MANASOTA-88

• Citation: 799 F.2d 687
• Decision Date: 15 September 1986
• Docket Number: MANASOTA-88,INC,No. 85-3837,85-3837
• Parties: , 16 Envtl. L. Rep. 20,994 , Petitioner, v. Lee M. THOMAS, Administrator, Environmental Protection Agency, and the United States Environmental Protection Agency, Respondents, and Gardinier, Inc., Intervenor-Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 687

799 F.2d 687

24 ERC 2041, 16 Envtl. L. Rep. 20,994

MANASOTA-88, INC., Petitioner, v. Lee M. THOMAS, Administrator, Environmental Protection Agency, and the United States Environmental Protection Agency, Respondents and Gardinier, Inc., Intervenor-Respondent.

No. 85-3837.

United States Court of Appeals, Eleventh Circuit.

Sept. 15, 1986.

Thomas W. Reese, St. Petersburg, Fla., for petitioner.

David W. Zugschwerdt, U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., Thomas DeRose, U.S. E.P.A., Atlanta, Ga., Joseph Freedman, Office of General Counsel, U.S. E.P.A., Washington, D.C., for respondents.

Robert L. Rhodes, Jr., Holland & Knight, Lakeland, Fla., for intervenor-respondent.

Petition for Review of an Order of the Environmental Protection Agency.

Before JOHNSON and ANDERSON, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

GARZA, Senior Circuit Judge:

BACKGROUND

Gardinier, Inc. ("Gardinier"), is engaged in mining and processing phosphate ore and manufacturing fertilizers and other chemical products at its Tampa Chemical plant located in Hillsborough County, Florida. On June 30, 1977, the United States Environmental Protection Agency ("EPA" or "Agency") issued Gardinier a five-year National Pollution Discharge Elimination System ("NPDES") permit regulating discharges from this facility. ¹

On May 17, 1979, Gardinier notified the EPA of its plan to make process modifications and to expand plant capacity by 20 per cent. Gardinier also noted that continued operations would require the future development of a disposal area for "phosphogypsum," a waste product of the phosphate process. Gardinier proposed that environmental review of the disposal area be conducted simultaneously with that for the plant process modifications and capacity expansion and, on October 4, requested that the EPA make a formal initial determination as to whether its proposed process modifications constituted a "new source." ² EPA issued its initial determination that On October 30, 1980, the EPA issued an environmental assessment ("EA") and a "finding of no significant impact" ("FONSI") concerning both Gardinier's plant modifications and proposed phosphogypsum disposal area. ⁴ The Agency concluded that no significant impact on environmental quality was present. ⁵ The EPA also issued public notice initiating a thirty-day public comment period on its initial new source determination, its environmental review and its draft proposed modified NPDES permit. The notice contained information on procedures for making both public hearing requests to supplement written comments, and for requesting an evidentiary hearing subsequent to the Agency's final On November 15, 1980, Manasota-88, Inc. ("Manasota-88"), a non-profit, environmental organization, submitted its written comments, directing the Agency's attention to a technical support document prepared in August, 1979, by EPA's Office of Radiation Programs ("ORP") regarding emissions of "radionuclides" into the atmosphere. On February 24, 1981, EPA issued Gardinier a modified NPDES permit effective March 26, 1981, with an expiration date of August 15, 1982. Manasota-88 did not pursue further review of the Agency's issuance of the modified NPDES permit to Gardinier.

the plant modifications constituted a new source for NPDES permitting purposes on November 1, 1979. ³ determination on issuance of the proposed modified permit. ⁶

Prior to the expiration of its modified NPDES permit, Gardinier applied for reissuance on February 11, 1982. On March 29, 1984, the EPA issued public notice commencing a thirty-day comment period on reissuance of Gardinier's NPDES permit. Manasota-88 submitted written comments requesting that the Agency prepare an EIS prior to reissuing Gardinier's NPDES permit. Specifically, Manasota-88 asserted that the Agency's 1980 FONSI "was based upon limited and inaccurate information" and cited data from the ORP document to which it had referred in submitting its November 15, 1980, comments on the adequacy of the Agency's environmental review. On May 9, 1984, Manasota-88 submitted additional comments combined with a request for an informal public hearing.

On September 20, 1984, the Agency held a public hearing in which Manasota-88 presented additional comments with respect to radon emissions from the proposed phosphogypsum disposal area. The EPA agreed with Manasota-88 that the Agency's 1980 FONSI, "although it was adequate at the time of issuance, does not reflect [what] appears to be additional information ... [and that, the Agency would] study the specific issue regarding radioactivity emissions from ... gyp stacks". However, a week later, on September 28, 1984, the EPA reissued Gardinier's NPDES permit effective November 1, 1984, with an expiration date of October 31, 1989. Written notice of this permit determination was issued on October 22, 1984.

Manasota-88 responded to the Agency's notice of its final determination by filing a Request for Evidentiary Hearing on November 19, 1984. Manasota-88 contended that the 1980 FONSI was erroneous and required the Agency to develop a full-scale EIS prior to reissuance of Gardinier's NPDES permit. The Agency's Region IV Administrator concluded that the request failed to raise any material issue of fact,

and that the relevant legal objections were not well taken. Accordingly, he denied Manasota-88's evidentiary hearing request on April 18, 1985. The EPA Administrator, on appeal, denied review of the permit reissuance determination on August 2, 1985. Manasota-88 timely filed its petition for review in this court on October 29, 1985.

STANDARD OF REVIEW

Generally speaking, the court's review of an agency's final decision is governed by the Administrative Procedure Act ("APA"), 5 U.S.C. Secs. 701 et seq. Under this statute, the "reviewing court shall ... hold unlawful and set aside agency actions, findings and conclusions found to be--arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). This deferential standard presumes the validity of the agency action and prohibits a reviewing court from substituting its judgment for that of the agency. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971). "Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute ... not simply because the court is unhappy with the result reached." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1979).

The courts' proper function in reviewing an agency's action is to determine whether the agency has "considered the relevant factors and articulated a rational connection between the facts found and the choices made." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). To affirm, a court must only determine that the agency had a rational basis for its decision. "While we may not supply a reasoned basis for the agency's action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947), we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman, 419 U.S. at 285-86, 95 S.Ct. at 442. In the NEPA context "[t]he role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. at 2252.

Manasota-88 has urged this court to apply a "reasonableness" standard of review to the Agency's decision to reissue Gardinier's NPDES permit. According to Manasota-88, the EPA's decision not to prepare an EIS prior to reissuance requires a higher degree of judicial scrutiny. Although this circuit has not heretofore articulated the standard of review applicable to an agency's decision not to prepare an EIS, the former Fifth Circuit has held that a reasonableness standard is appropriate. Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir.1973).

In Kreger the court noted that

[t]he spirit of [NEPA] would die aborning if a facile, ex parte decision that the project was minor or did not significantly affect the environment were too well shielded from impartial review. Every such decision pretermits all consideration of that which Congress has directed be considered 'to the fullest extent possible.' The primary decision to give or bypass the consideration required by [NEPA] must be subject to inspection under a more searching standard.

Id. at 466. The Fifth Circuit has recently reaffirmed the reasonableness standard of review for an agency decision not to prepare an EIS. See Fritiofson v. Alexander, 772 F.2d 1225, 1237 (5th Cir.1985). We, therefore, agree with Manasota-88 that a reasonableness standard is appropriate for We cannot, however, agree with Manasota-88's characterization of the issue in this case as one merely involving the EPA's refusal to prepare an EIS. The EPA found that Gardinier's proposed phosphogypsum disposal area was not a new source within the meaning of 33 U.S.C. Sec. 1316(a)(2). Specifically, the Region IV Administrator found

reviewing an agency's decision not to prepare an EIS. ⁷

that the major modifications proposed by Gardinier have all been completed except for the proposed new gypsum disposal area, which considered alone, would not now, nor in 1979, have resulted in a determination that the Gardinier facility was a new source; hence, no environmental assessment would have been mandated by NEPA, if only a...