Northeast Ohio Regional v. U.S. E.P.A., 00-4502.

Citation411 F.3d 726
Decision Date16 June 2005
Docket NumberNo. 01-3379.,No. 00-4502.,00-4502.,01-3379.
PartiesNORTHEAST OHIO REGIONAL SEWER DISTRICT; City of Cincinnati, on behalf of the Metropolitan Sewer District of Greater Cincinnati, Hamilton County, Ohio; City of Akron, Public Utilities Bureau; City of Columbus, Division of Sewerage & Drainage; City of Toledo (00-4502); Indiana Water Quality Coalition (01-3379), Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: David W. Burchmore, Squire, Sanders & Dempsey, Cleveland, Ohio, Fredric Paul Andes, Barnes & Thornburg, Chicago, Illinois, for Petitioners. Andrew J. Doyle, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: David W. Burchmore, Steven C. Bordenkircher, Squire, Sanders & Dempsey, Cleveland, Ohio, Fredric Paul Andes, Barnes & Thornburg, Chicago, Illinois, Susan E. Ashbrook, Columbus City Attorney's Office, Columbus, Ohio, for Petitioners. Andrew J. Doyle, United States Department of Justice, Washington, D.C., Stephen J. Sweeney, United States Environmental Protection Agency, Washington, D.C., Gary Prichard, United States Environmental Protection Agency, Chicago, Illinois, for Respondent.

Before: DAUGHTREY and GILMAN, Circuit Judges; RICE, District Judge.*

OPINION

GILMAN, Circuit Judge.

A group of public agencies and private companies based in Indiana and Ohio have petitioned this court for a review of a final decision issued by the United States Environmental Protection Agency (EPA) regarding state regulatory schemes governing toxic discharges into the Great Lakes. For the reasons set forth below, we deny the petitions for review.

I. BACKGROUND
A. Factual background

This litigation arises under the Clean Water Act, the purpose of which is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section 402 of the Clean Water Act established the National Pollutant Discharge Elimination System (NPDES), which obligates polluters to obtain permits for their discharges. Each permit issued under NPDES must include restrictions on pollution discharge and, if necessary, water effluent toxicity (WET) limitations. Although the regulations under NPDES allow a permitting authority to impose a WET limitation whenever a discharge has at least a "reasonable potential" to lead to a water quality violation, they do not establish a specific procedure for the permitting authority to follow. The permitting authority is instead required to take into account certain enumerated factors.

In the late 1980s, the governors of the eight states surrounding the Great Lakes entered into an agreement to protect and preserve the environmental integrity of the Great Lakes waters. Congress followed up by enacting the Great Lakes Critical Programs Act of 1990, which amended Section 118 of the Clean Water Act. 33 U.S.C. § 1268. In this amendment, Congress instructed the EPA to promulgate regulations to ensure that water quality procedures in the states around the Great Lakes would be "no less restrictive" than the already-existing water quality criteria. 33 U.S.C. § 1268(c)(2)(A). Congress also provided that "the Great Lakes States shall adopt water quality standards, antidegredation policies, and implementation procedures for waters within the Great Lakes System which are consistent with such guidance." 33 U.S.C. § 1268(c)(2)(C).

The EPA set forth these rules in a regulation titled the "Final Water Quality Guidance for the Great Lakes System" (the Guidance), found at 60 Fed.Reg. 15,366 (Mar. 23, 1995). Specific provisions of the Guidance govern individual discharges of toxic pollutants into Great Lakes waters. Following the issuance of the Guidance, the eight Great Lakes states were required to adopt and submit to the EPA implementation procedures of their own. The states have the flexibility to create and modify their own regulatory schemes, so long as the net level of protection offered by their provisions match or exceed those promulgated under the Guidance. See 40 C.F.R. § 132.5(g)(3). If the states fail to establish regulations consistent with the Guidance, Congress has mandated that the EPA impose its own standards on the states. 33 U.S.C. § 1268(c)(2)(C).

Under the Guidance, the procedures for establishing WET limits are roughly as follows: Samples are taken from a facility's discharge. Marine organisms are then exposed to these samples as well as to control samples, and tests are done to determine what percentage of these organisms die upon exposure. A "toxic unit," which is a quantitative value, is based upon the percentage of deaths that occur. The highest daily "toxic unit" value measured in the discharge (or, in some cases, the highest weekly value) is then multiplied by a predetermined statistical variable, which depends upon the number of the data points and the variation in results. If the resulting value is greater than the EPA's predetermined criterion, the permitting authority is required to impose a WET limitation.

Indiana submitted its rules to the EPA in late 1997. The EPA subsequently criticized Indiana's proposed procedure because, unlike the Guidance, which used the maximum value from all of the WET tests during the relevant time period, Indiana's procedure would use the geometric mean of all values sampled. In addition, the EPA disapproved of the fact that Indiana's procedure did not employ a statistically based multiplier in its analysis. The EPA thus concluded that Indiana's proposed procedures were inconsistent with the Guidance and issued a final order to that effect on August 4, 2000.

Ohio also submitted its rules to the EPA in late 1997 and, like Indiana, part of its proposal was rejected as being inconsistent with the Guidance. Unlike the Guidance's rigid statistical test, the Ohio test adopted a "weight-of-the-evidence" approach that would require the permitting authority to look to a variety of factors in deciding whether to impose a WET limit. The EPA found that this approach granted too much flexibility to the permitting authority, noting that it would "devalue observed WET test results and would not require a [limit] even where WET test results show observed levels of unacceptable toxicity." Approved and Disapproved Elements of the Great Lakes Guidance Submissions, 65 Fed.Reg. 47864, 47867 (Aug. 4, 2000). It also faulted the fact that Ohio did not employ a statistically based multiplier. The EPA concluded that the procedures were inconsistent with the Guidance in the same final order that it issued regarding the Indiana procedures.

B. Procedural background

On December 1, 2000, approximately four months after the final EPA order was issued, a group of Ohio entities (hereinafter the Ohio petitioners) filed suit in this court challenging the EPA's conclusion that the proposed Ohio rules were inconsistent with the Guidance. A similar group of Indiana petitioners, united under the moniker Indiana Water Quality Coalition (IWQC), filed suit on December 18, 2000 in the United States Court of Appeals for the Seventh Circuit, challenging the EPA's final decision that the Indiana proposed rules were inconsistent with the Guidance. Pursuant to 28 U.S.C. § 2112(a)(1) and (5), the EPA moved to transfer the case to this court, where the Ohio petitioners had already filed a similar petition. The Seventh Circuit granted the EPA's petition on April 16, 2001. This court accepted the transfer on May 15, 2001, consolidating the two actions into the present case.

II. ANALYSIS
A. Standard of review

This case is governed by the Federal Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the APA, courts will not set aside a final agency action unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(a).

This standard is deferential. "Even when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency's path may reasonably be discerned." Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 124 S.Ct. 983, 1006, 157 L.Ed.2d 967 (2004) (quotation marks omitted). In considering whether an agency rule is "arbitrary and capricious," we may consider whether

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency's action that the agency itself has not given.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1982) (quotation marks omitted). This court has also noted that it will "defer in large part to EPA's scientific findings." BP Exploration & Oil v. EPA, 66 F.3d 784, 792 (6th Cir.1995). Although the court's review is to be "searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), questioned on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

B. The scope of petitioners' challenge

The EPA asserts at the outset that this consolidated case is nothing more than an attempt by the petitioners to have this court review the validity of the Guidance itself, as opposed to a review of the Indiana and Ohio regulatory schemes. Under the Clean Water Act, any petitions for...

To continue reading

Request your trial
16 cases
  • Oakbrook Land Holdings, LLC v. Comm'r
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 14, 2022
    ...so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Ne. Ohio Reg'l Sewer Dist. v. U.S. EPA , 411 F.3d 726, 731 (6th Cir. 2005) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (State Farm ), 463 U.S. 29,......
  • Kentucky Riverkeeper, Inc. v. Midkiff
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • July 14, 2011
    ...an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); N.E. Ohio Reg'l Sewer Dist. v. U.S. Envtl Protection Agency, 411 F.3d 726, 731 (6th Cir.2005). The court must consider whether the agency has “examine[d] the relevant data and articulate[d] a satisfactor......
  • Pension Benefit Guaranty Corp. v. Ky. Bancshares, Inc., Civil Action No. 13–cv–143–KSF.
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • March 17, 2014
    ...Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Northeast Ohio Reg'l Sewer Dist. v. United States E.P.A., 411 F.3d 726, 732 (6th Cir.2005); Simms v. Nat'l Highway Traffic Safety Administration, 45 F.3d 999, 1003 (6th Cir.1995). The parties further agree that to ......
  • Pension Benefit Guaranty Corp. v. Ky. Bancshares, Inc.
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • March 17, 2014
    ...to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ; Northeast Ohio Reg'l Sewer Dist. v. United States E.P.A., 411 F.3d 726, 732 (6th Cir.2005) ; Simms v. Nat'l Highway Traffic Safety Administration, 45 F.3d 999, 1003 (6th Cir.1995).The parties f......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT