Lake Carriers' Ass'n v. Envtl. Prot. Agency

• Decision Date: 22 July 2011
• Docket Number: 09–1076,Nos. 09–1001,09–1010,09–1115.,s. 09–1001
• Citation: 652 F.3d 1,397 U.S.App.D.C. 269
• Parties: LAKE CARRIERS' ASSOCIATION, Petitionerv.ENVIRONMENTAL PROTECTION AGENCY, Respondent.Center for Biological Diversity, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

652 F.3d 1

397 U.S.App.D.C. 269

LAKE CARRIERS' ASSOCIATION, Petitioner

v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.Center for Biological Diversity, et al., Intervenors.

Nos. 09–1001

09–1010

09–1076

09–1115.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2011.Decided July 22, 2011.

OPINION TEXT STARTS HEREWest CodenotesPrior Version Recognized as Invalid40 C.F.R. § 122.3(a) On Petitions for Review of a Final Action of the Environmental Protection Agency.Barry M. Hartman argued the cause for petitioners. With him on the briefs were Christopher R. Nestor and Shaun M. Gehan. David E. Frulla entered an appearance.Joel C. Mandelman was on the brief for amicus curiae Nutech 03, Inc. in support of petitioners.Martin F. McDermott, Attorney, U.S. Department of Justice, argued the cause and filed the brief for respondents.

Deborah A. Sivas, Allison LaPlante, Daniel P. Mensher, and Thomas Cmar were on the brief for intervenors Northwest Environmental Advocates, et al. in support of respondents.Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General, Monica B. Wagner, Assistant Solicitor General, Lisa Burianek, Deputy Bureau Chief, Michael Myers, Section Chief, Bill Schuette, Attorney General, Office of the Attorney General for the State of Michigan, John J. Bursch, Solicitor General, and Robert P. Reichel, Assistant Attorney General, were on the brief for amici curiae States of New York and Michigan.Before: GARLAND and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.Opinion for the Court filed PER CURIAM.PER CURIAM:

Trade associations representing commercial ship owners and operators petition for review of a nationwide permit issued by the Environmental Protection Agency (EPA) for the discharge of pollutants incidental to the normal operation of vessels. The petitioners raise a number of procedural challenges, all related to EPA's decision to incorporate into the permit conditions that states submitted to protect their own water quality. Because we find that the petitioners have not shown that the additional procedures they request would have had any effect on the final permit, we deny the petitions for review.

I

Section 301(a) of the Clean Water Act (CWA) prohibits “the discharge of any pollutant by any person” into the waters of the United States, except in compliance with the terms of the Act. 33 U.S.C. § 1311(a). Section 402(a) provides one way in which such discharges may take place without violating the CWA. Under that section, EPA may issue a National Pollutant Discharge Elimination System (NPDES) permit “for the discharge of any pollutant ..., notwithstanding section [301(a) ] ..., upon condition that such discharge will meet ... all applicable requirements ... of [the CWA].” Id. § 1342(a)(1). EPA regulations explain that permits may be individual (covering discharges from a single source, 40 C.F.R. § 122.21), or general (covering “one or more categories or subcategories of discharges ... within a geographic area,” id. § 122.28(a)). Each permit must set out the specific conditions necessary to ensure that the permit holder's discharge of pollution will comply with the water standards mandated by the CWA. 33 U.S.C. § 1342(a)(2).

In conjunction with the permitting process, the CWA gives states an express role in approving or barring discharges into their navigable waters, and in setting out the conditions under which such discharges may occur. Section 401 of the CWA states that any applicant for a federal permit to conduct any activity that “may result in any discharge into the navigable waters, shall provide the ... permitting agency a certification from the State in which the discharge originates or will originate ... that any such discharge will comply with” national and EPA-approved state water quality standards. 33 U.S.C. § 1341(a). The state must also set forth in its certification “any effluent limitations and other limitations ... necessary to assure” that the permit holder “will comply” with CWA standards “and with any other appropriate requirement of State law.” Id. § 1341(d). These limitations “shall become a condition” on any federal permit, id., and no “permit shall be granted if certification has been denied,” id. § 1341(a).

The CWA defines “discharge of a pollutant” as, inter alia, “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). A “point source” includes a “vessel or floating craft,” id. § 1362(14), and “pollutant” is defined to include “sewage from vessels,” id. § 1362(6). Thus, discharges from vessels are regulated by the permitting and certification scheme set out above.

Shortly after the CWA was enacted, EPA promulgated a regulation exempting incidental vessel discharges from the permitting (and therefore the certification) requirements of the Act. Exempted discharges included “sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel.” 40 C.F.R. § 122.3(a). The regulation was in force for more than thirty years. Then, in 2008, the Ninth Circuit affirmed a district court decision vacating the regulation, finding that EPA lacked authority to exempt incidental vessel discharges. Northwest Envtl. Advocates v. EPA, 537 F.3d 1006 (9th Cir.2008). After a stay to allow EPA time to implement a means of issuing permits for vessel discharges, the regulation was finally vacated on February 6, 2009.

In response to the Ninth Circuit's decision, EPA developed a general permit, pursuant to section 402 of the CWA, to cover the incidental vessel discharges previously exempted by the regulation. See Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel, 73 Fed. Reg. 79,473 (Dec. 29, 2008). ¹ The agency estimated that the Vessel General Permit (VGP) would cover discharges from approximately 61,000 domestic-flagged commercial vessels and 8,000 foreign-flagged vessels. Id. at 79,481. And unlike the majority of permits issued under section 402, which cover discharges originating in only a single state, the VGP would cover discharges in waterways throughout the United States.

EPA published a draft VGP on June 17, 2008, and established a 45–day comment period. Draft NPDES General Permits for Discharges Incidental to the Normal Operation of a Vessel, 73 Fed. Reg. 34,296 (June 17, 2008). The draft permit set out all of the general EPA-mandated conditions for vessel discharges, and indicated that the agency was seeking certifications from each of the states pursuant to section 401. U.S. EPA, Proposed General Permit (2008), at 53 (J.A. 286); see Draft NPDES General Permits, 73 Fed. Reg. at 34,302. The draft permit did not, however, include any of the certification conditions to be imposed by the states pursuant to section 401. 73 Fed. Reg. at 34,302.

EPA received more than 170 comments on the draft permit. Many suggested that, because state water standards differ, the state certifications might result in conflicting conditions being attached to the permit, thus unduly hindering vessels seeking to remain in compliance as they move between the waters of different states. Some comments suggested that a single uniform standard was necessary to minimize the burden on interstate commerce. EPA acknowledged these comments, but responded that the statute required certifications by the states in which the discharges would originate and mandated that EPA attach to the permit any conditions the states deemed necessary to meet their specific water quality standards. Therefore, EPA concluded, it could neither evade the certification process nor alter certification conditions imposed by the states. EPA Response to Comments, at 14 (J.A. 1052–91).

Twenty five states, two tribes, and one territory certified the draft VGP and attached state-specific conditions. (The other states, with the exception of Alaska and Hawaii, either certified without conditions or waived their right to certify.) On December 19, 2008, EPA's final VGP became effective. Final NPDES General Permit, 73 Fed. Reg. at 79,474. Part VI of the permit, which was not included in the draft VGP, is composed of approximately 100 state certification conditions. U.S. EPA, Vessel General Permit (VGP) (2008), at 62–104 (J.A. 825–67). Vessels covered by the permit are required to adhere to the general provisions of the VGP with respect to all discharges, and are further required to adhere to any Part VI certification condition imposed by a state into the waters of which the vessel is discharging pollutants.

In 2009, Lake Carriers' Association, Canadian Shipowners Association, and American Waterways Operators filed petitions for review of the final VGP. The petitions were consolidated into the single suit now before us. The trade associations raise three challenges. First, they contend that EPA erred in failing to provide notice and an opportunity for comment on the final VGP, which contained the state certification conditions. Second, they charge that it was arbitrary and capricious for EPA to issue the permit without considering the possible ill-effects of the state certification conditions. Finally, they allege that EPA failed to consider the costs of compliance with state conditions in assessing the impact of the permit on small businesses, as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. § 601 et seq. ² The standard of review for these challenges is governed by the Administrative Procedure Act (APA), pursuant to which we determine whether the agency's actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), and whether the permit was promulgated “without observance of procedure required by law,” id. § 706(2)(D). See ...