Puerto Rico Sun Oil Co. v. U.S. E.P.A.

• Citation: 8 F.3d 73
• Decision Date: 02 August 1993
• Docket Number: No. 92-2359,92-2359
• Parties: , 62 USLW 2295, 24 Envtl. L. Rep. 20,306 PUERTO RICO SUN OIL COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 73

8 F.3d 73

37 ERC 1729, 62 USLW 2295, 24 Envtl.

L. Rep. 20,306

PUERTO RICO SUN OIL COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 92-2359.

United States Court of Appeals First Circuit.

Heard Aug. 2, 1993.

Decided Oct. 21, 1993.

Robert Brager with whom Richard S. Davis, Joseph C. Stanko, Jr., Patricia Ross McCubbin, Beveridge & Diamond, P.C., Washington, DC, Leonardo Andrade-Lugo, Jose A. Cepeda-Rodriguez, Carlos A. Rodriguez-Vidal, Eli Matos-Alicea, Goldman Antonetti Cordova & Axtmayer, Hato Rey, PR, and Edward J. Ciechon, Jr., Philadelphia, PA, were on brief, for petitioner.

Alan D. Greenberg, Environment & Natural Resources Div., Environmental Defense Section, Dept. of Justice, with whom Myles E. Flint, Acting Asst. Atty. Gen., Randolph L. Hill and Meyer Scolnick, Asst. Regional Counsel, E.P.A., Washington, DC, were on brief, for respondent.

Before SELYA, CYR and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

In August 1990, the Environmental Protection Agency issued a pollution discharge permit to Puerto Rico Sun Oil Company ("the Company"). In doing so EPA complied with the substantive requirements of the governing statute and the procedures set forth in the statute and EPA regulations. Only the result gives cause for concern, and that concern is not allayed by the agency's explanation for its decision. In our judgment, the result is so odd that either the EPA has abused its discretion or it has explained itself so poorly as to require further justification. On either view, we must vacate the agency's order adopting the permit and remand for further proceedings.

I. THE FACTS

The Clean Water Act, 33 U.S.C. § 1251, et seq., prohibits the discharge into protected waters of any pollutant by any person, id. § 1311(a), unless a discharge permit has been secured from EPA. Id. § 1342. The permitting regime is a hybrid one in which both EPA and the counterpart state agency play a role. The precise role depends on whether EPA has delegated permit issuing authority to the state; but no such delegation is present here. Puerto Rico is treated as a state for purposes of the Clean Water Act, id. § 1362(3), and its local agency is the Environmental Quality Board ("EQB").

To obtain a permit, the applicant must satisfy a variety of substantive requirements under the Clean Water Act but, in addition, no EPA permit can issue unless the state in which the discharge will occur gives its own approval (called "certification") or waives its right to do so. 33 U.S.C. § 1341(a)(1). Further, the state certification may impose discharge limitations or requirements more stringent than federal law requires, and those more stringent obligations are incorporated into the federal permit as a matter of course. See generally United States v. Marathon Development Corp., 867 F.2d 96, 99 (1st Cir.1989) (describing state role). What lies at the heart of this case is EQB's effort to impose, and then back away from, such more stringent obligations.

For some years before this case began, the Company held a discharge permit for its oil refining facility at Yabucoa Bay, Puerto Rico, where it discharges pollutants from two different sources. On May 27, 1988, the Company submitted to EPA an application to renew the permit for its facility. On October 31, 1988, EPA forwarded the application to EQB, requesting that a draft certification be prepared promptly. EPA also warned EQB that under EPA regulations, Puerto Rico's right to impose obligations by certification would be waived if a final certification were not received within 60 days after EPA sent a copy of a (yet to be prepared) draft permit to EQB. 40 C.F.R. § 124.53(c)(3) (60 day time limit). ¹

On January 25, 1989, EQB released a tentative certification--essentially a draft document that facilitates public comment on the proposed state certification and proposed federal permit. The draft certification in this case probably came as a surprise to the Company. The earlier permit had employed a "mixing zone" analysis in setting the pollution limitations for the Company's discharged effluent; the draft certificate did not include a mixing zone analysis. The difference, which is central to this case, needs a word of explanation.

A discharge permit under the Clean Water Act may include several types of requirements. One set concerns the technology used to limit pollution; another, pertinent here, requires that the amount of specified pollutants not exceed certain percentage levels. In theory, the percentage levels could be measured in the effluent itself--such as storm runoff or waste water--just as it drains into the stream, river or bay which is protected by the Clean Water Act; alternatively, it could be measured at the edge of a defined area of the receiving body of water after the pollutant has been diluted by that water.

Such a defined area is called a mixing zone, and it appears that measuring pollutants at the edge of the mixing zone is widespread in the application of the Clean Water Act. According to an EPA publication, "[w]hether to establish such a mixing zone policy is a matter of State discretion." EPA, Mixing Zones--Water Quality Standards Criteria Summaries: A Compilation of State/Federal Criteria 2 (September 1988) ("Mixing Zones"). Practically every state and Puerto Rico have adopted mixing zone criteria, id., although the criteria appear to differ widely. Id. at 70-78 (Puerto Rico criteria as of 1988). The mixing zone concept is described in Marathon Oil Co. v. EPA, 830 F.2d 1346, 1349 (5th Cir.1987), which concludes with the observation that "the 'mixing zone' determination is basically a cost-benefit judgment on a given set of environmental facts, rather than any sort of 'scientific' determination." Id. at 1351.

When in January 1989 EQB issued its draft certification for the Company's requested permit, the EQB was reformulating its mixing zone criteria. EQB's draft certification for the Company neither continued in force the old mixing zone criteria temporarily nor made the certificate subject to the new criteria still under development. Instead, the draft certification simply set further pollutant limitations which, absent the mixing zone analysis, apply directly to the effluent as it enters the receiving waters. Mixing Zones, supra, at 2 ("If no such mixing zone is recognized by a State, then the waters must meet the criteria at the point of discharge.").

The next event was EPA's release on August 11, 1989, of a draft permit and request for public comment. The draft permit incorporated the requirements of the draft certification issued by EQB and therefore used no mixing zone analysis. Although issuance of the draft permit meant that final EQB certification was now due in 60 days, 40 C.F.R. § 124.53(c)(2), EQB apparently paid no attention to the deadline or to EPA's earlier warning that failure to meet the deadline would waive Puerto Rico's right to certify. Nevertheless, in October 1989 EPA told the Company's attorneys that it was extending the comment period on the draft permit "indefinitely" while awaiting the EQB's final certification. When the certification arrived, said EPA, it would set a "prompt" close to the comment period.

On July 24, 1990, almost a year after receiving the draft permit, EQB issued what it called its "final" water quality certification for the Company, again eschewing a mixing zone analysis. Both the timing and substance of this action are puzzling because, only four days before, on July 20, 1990, EQB had promulgated new regulations to be effective on August 20, 1990, adopting a new method of determining mixing zones. But if EQB's behavior was slothful and careless, EPA's reaction was even stranger.

At this point the EQB's final certification must have appeared a probable candidate for administrative or judicial revision in Puerto Rico. EQB had used a mixing zone analysis in the past and was proposing to do so in the future, and the use of such an analysis was likely to be significant; indeed, the Company later represented, and EPA has not disputed the claim, that its refinery cannot operate if forced to meet the pollution standards without the help of a mixing zone analysis. Yet just as the Company moved to correct the EQB certification, EPA moved even more swiftly to adopt a final permit based on the EQB certificate that omitted a mixing zone analysis.

The chronology can be compressed. On August 17, 1990, the Company asked EQB to reconsider its certification and include a mixing zone analysis. On August 21, 1990, EPA published a new draft permit incorporating EQB's final certification requirements, and it offered 30 days to submit comments. On September 7, 1990, EQB wrote to EPA saying that it was evaluating the Company's comments on reconsideration and that it might alter its certification. On September 10 and on September 21, 1990, the Company asked EPA to delay action on the permit to allow the EQB to complete its reconsideration. On September 28, 1990, EPA issued a final permit, based on the then July 1990 EQB certification and without provision for a mixing zone.

On November 7, 1990, the Company sought administrative review within EPA, an action that automatically stayed the new permit, 40 C.F.R. § 124.15(b)(2), and left the old one in force on a temporary basis. On November 28, 1990, EQB adopted a resolution staying its certification pending reconsideration and announcing, for the benefit of EPA, that the certificate was "not to become final" until the reconsideration was completed. In February 1991, EQB wrote formally to EPA stating that the certificate should be treated as not final and urging EPA to leave the Company's previous permit in effect for the time being. In June 1992 EPA's regional administrator issued a decision reaffirming the new permit without a mixing zone provision but continuing the stay of the new permit pending a further administrative appeal.

In July...