895 F.3d 120
1st Cir.2018Background
- The EPA renewed the NPDES permit for Taunton Wastewater Treatment Plant (City of Taunton) in 2015 and for the first time imposed a numerical nitrogen effluent limit (3.0 mg/L) with a staged compliance schedule.
- The Facility discharges to the Taunton River Estuary and Mount Hope Bay (part of Narragansett Bay); the EPA found evidence of nutrient overenrichment (eutrophication) based primarily on a 2004–2006 SMAST monitoring study and the Massachusetts "Critical Indicators" report.
- The EPA derived a numeric target total nitrogen concentration (0.45 mg/L) using a reference-site approach (site MHB16) and modeled watershed loads to allocate an overall point-source load budget; nonpoint sources were estimated and discounted by 20%.
- Taunton submitted voluminous timely comments, sought to submit supplemental (untimely) comments repeatedly, and later sought to add post-decision materials to the administrative record and to this court's record; EPA and the EAB rejected untimely materials and declined to reopen the comment period.
- The City appealed the EAB decision to the First Circuit raising procedural (record supplementation, notice, access to supporting data, waiver of untimely comments) and substantive challenges (no nutrient impairment, flawed target/metric, failure to consider changed conditions and major dischargers). The First Circuit affirmed the EAB and EPA.
Issues
| Issue | Plaintiff's Argument (Taunton) | Defendant's Argument (EPA) | Held |
|---|---|---|---|
| 1) Supplementing judicial record with post‑record docs & striking City’s appendix | City sought to add documents to rebut Rhode Island amicus and to show EPA error | EPA moved to strike those documents as outside the administrative record; agency only required to base review on record before it | Court struck the new documents; refused to supplement record—City failed to justify exception to record rule |
| 2) Whether EPA must reopen comment period after adding material to administrative record | City: fact sheet too cursory; EPA improperly added extensive analyses post‑comment and must reopen comment period | EPA: regulations permit adding materials to respond to comments and reopening is discretionary and only required if new significant issues arise | Court: fact sheet met 40 C.F.R. §124.8; EPA permissibly added materials and did not abuse discretion in not reopening comment period |
| 3) Waiver / refusal to consider City’s untimely supplemental comments & EAB evidentiary strikes | City: EPA/EAB improperly refused to address supplemental/late materials and struck documents on appeal | EPA/EAB: procedural default rules apply; party must raise issues during public comment; EAB properly enforced waiver rules | Court: upheld denial—strict procedural default applies in permitting; EPA/EAB did not act arbitrarily |
| 4) Substantive: reasonable‑potential nutrient impairment; numeric target and allocation | City: EPA misapplied "Critical Indicators" straw‑man thresholds, relied on old/unsuitable SMAST data and dissimilar reference site (MHB16), failed to show causation or account for post‑2006 improvements and major Fall River discharger | EPA: used Critical Indicators' indicators (not fixed thresholds), SMAST is most comprehensive dataset, reasonable‑potential requires only potential to contribute, 0.45 mg/L target and 3.0 mg/L allocation are scientifically justified and within agency discretion | Court: EPA's determinations were not arbitrary or capricious—reasonable‑potential standard met; choice of data, target, and allocation fell within a zone of reasonableness; EPA adequately considered post‑2006 factors |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (court may set aside agency action that is arbitrary or capricious)
- Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9 (1st Cir.) (deference to EPA on water quality technical judgments and numeric standard within zone of reasonableness)
- Auer v. Robbins, 519 U.S. 452 (agency interpretation of its own regulations is controlling unless plainly erroneous)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (deference to reasonable agency statutory interpretations)
- Camp v. Pitts, 411 U.S. 138 (judicial review focuses on the administrative record)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (courts defer to agencies on technical matters and review for arbitrary action)