Puerto Rico Aqueduct and Sewer Authority v. U.S. E.P.A.

• Decision Date: 31 August 1994
• Docket Number: No. 93-2340,93-2340
• Citation: 35 F.3d 600
• Parties: PUERTO RICO AQUEDUCT AND SEWER AUTHORITY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 600

35 F.3d 600

39 ERC 1269

PUERTO RICO AQUEDUCT AND SEWER AUTHORITY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 93-2340.

United States Court of Appeals, First Circuit.

Argued June 9, 1994.

Decided Aug. 31, 1994.

Neil T. Proto, with whom John B. Britton, Lisa K. Hsiao, Verner, Liipfert, Bernhard McPherson & Hand, Chartered, Washington, DC, Edgar Rodriguez-Mendez, San Juan, PR, and Jorge Marrero-Narvaez, Washington, DC, were on brief, for petitioner.

Michael J. Zevenbergen, Atty., U.S. Dept. of Justice Environmental Defense Section, with whom Lois J. Schiffer, Acting Asst. Atty. Gen., Stephen J. Sweeney, Office of General Counsel, EPA, and Janice Whitney, Office of Regional Counsel, EPA Region II, Washington, DC, were on brief, for respondent.

Before SELYA and CYR, Circuit Judges, and PETTINE, ^* Senior District Judge.

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. ¹ Descrying no flaw in EPA's application of either its procedural or substantive regulations, we affirm.

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. Sec. 1311(a) (1988). Ordinarily, the NPDES permit issued to a POTW includes certain technology-based standards known as secondary treatment requirements. See id. Sec. 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. Sec. 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. ²

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 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. Sec. 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. Sec. 125.61(a)-(e) due to "human perturbations" other than its modified discharge must meet the stressed waters requirements of 40 C.F.R. Sec. 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. Sec. 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 (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. Sec. 125.59(d) (1993). A POTW that has submitted a timely application for such modification may revise it once as of right. See id. Sec. 125.59(d)(1). EPA also may authorize or request the submission of additional information. See id. Sec. 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. Sec. 124.15 (1993). That decision becomes the final permit, effective in thirty days, unless it is administratively appealed. See id. Sec. 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. Sec. 124.74(a). The request must specifically identify the legal and factual issues and their relevance to the permit decision. Id. Sec. 124.75(a)(1). EPA's Regional Administrator then grants or denies the request. Id. Sec. 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. Secs. 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. Sec. 124.91(f)(1).

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 a 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. Sec. 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. Sec. 124.75, to necessitate the presence of a "genuine issue of material fact" as a prerequisite to 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 Rule 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. Sec. 125.61(f)(1) or the future impacts showing required under 40 C.F.R. Sec. 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, ³ 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. See id. at 15-18. This ruling was tantamount to the entry of summary judgment, effectively terminating PRASA's administrative appeal.

III. 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. Sec. 706(2)(A) (1988); see also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (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, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983); FPC v....