PR Aquaduct v. US EPAPR Aquaduct v. US EPA
Michael J. Zevenbergen, Attorney, U.S. Dep‘t of Justice Environmental Defense Section, with whom Lois J. Schiffer, Acting Assistant Attorney General, Stephen J. Sweeney (Office of General Counsel, EPA), and Janice Whitney (Office of Regional Counsel, EPA Region II), were on brief, for respondent.
*Of the District of Rhode Island, sitting by designation.
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.
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
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 . . . .
(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.
Unlike typical NPDES permit proceedings, EPA makes a tentative decision to grant or deny section 1311(h) modifications prior to proposing a permit. See
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
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
In a passage that frames the central battleground in this venue, the Board self-consciously construed the procedural standard governing requests for evidentiary hearings,
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
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.”
IV. ADMINISTRATIVE SUMMARY JUDGMENT
In this court, PRASA hawks most vigorously a claim of procedural error. This claim spotlights the Board‘s interpretation of EPA‘s standard for dispensing (or dispensing with) evidentiary hearings, especially its conclusion that the text of the applicable regulation,
The Structure of Administrative Summary Judgment
In erecting an adjudicatory framework that included an administrative summary judgment procedure, EPA necessarily contemplated that, to qualify for an evidentiary hearing, a party would have to present a genuine and material dispute. Those two requirements are inherent in the very concept of administrative summary judgment. Any other assumption borders on the chimerical: under federal case law, a “material” fact is one that may affect the outcome of the case, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992); a “genuine” fact dispute is one that a reasonable decisionmaker could decide in favor of either party under the applicable standard of proof, or in other words, one that is worthy of being more fully adjudicated (trialworthy in the courts’ parlance; hearing-worthy in the agencies’ parlance).4 See Liberty Lobby, 477 U.S. at 248-49; One Parcel, 960 F.2d at 204. To force an agency fully to adjudicate a dispute that is patently frivolous, or that can be resolved in only one way, or that can have no bearing on the disposition of the case, would be mindless, and would suffocate the root purpose for making available a summary procedure. Indeed, to argue as does petitioner that a speculative or purely theoretical dispute in other words, a non-genuine dispute can derail summary judgment is sheer persiflage.
We hasten to add that, despite this linguistic equivalency, explicitly drawing a connection to Rule 56 accomplishes three things. First, it provides a common vocabulary, easily understandable by litigants, lawyers, and adjudicators. Second, it introduces into an agency‘s jurisprudence a ready-made ensemble of decisional precedents associated with Rule 56, see, e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (holding that at the summary judgment stage the evidence must be examined in the light most favorable to the nonmovant). Third, it carries with it certain expectations, conditioned by everyday experience in the federal courts, about the kind and degree of evidence deemed necessary to create a genuine dispute over a material fact. See, e.g., Liberty Lobby, 477 U.S. at 249-50 (explaining that to withstand summary judgment, evidence must be “significantly probative“); Garside, 895 F.2d at 49-50 (discussing type and kind of opinion evidence that may forestall summary judgment).
Notwithstanding the obvious advantages of drawing a parallel between the courts’ and the agencies’ versions of summary judgment, petitioner contends that the Board went too far too fast. In support, PRASA posits three interrelated arguments: (1) that summary judgment, as it exists in the courts, has no legitimate place in agency practice; (2) that administrative summary judgment does not carry with it the baggage of Rule 56; and (3) that, in all events, EPA took an impermissible shortcut and embraced a Rule 56 standard precipitously, without affording fair notice or an opportunity to respond. These arguments lack force.
The Validity of Administrative Summary Judgment
The choice between summary judgment and full adjudication in virtually any context reflects a balancing of the value of efficiency against the values of accuracy and fairness. Seen in that light, summary judgment often makes especially good sense in an administrative forum, for, given the volume of matters coursing through an agency‘s hallways, efficiency is perhaps more central to an agency than to a court. See Charles C. Ames & Steven C. McCracken, Framing Regulatory Standards to Avoid Formal Adjudication: The FDA As a Case Study, 64 Cal. L. Rev. 14, 34-35 (1976). At the same time, summary judgment is less jarring in the administrative context; after all, even under optimal conditions, agencies do not afford parties full-dress jury trials. Taking these factors into account, it is unsurprising that most major agencies in the federal system have opted to make available procedures for the summary disposition of adjudicatory matters. See, e.g.,
Applicability of Rule 56 Precedents
Petitioner‘s attempt to break the bond between administrative summary judgment and its courtroom counterpart is similarly unavailing. From its inception, the concept of administrative summary judgment has been linked inextricably to
In view of this history, one respected court has gone so far as to say, perhaps overbroadly, that the principles of summary judgment outlined in Liberty Lobby “apply with equal force in the context of administrative judgment.” John D. Copanos & Sons, Inc. v. FDA, 854 F.2d 510, 523 (D.C. Cir. 1988). We take a more circumspect view. In our opinion, Rule 56 is the prototype for administrative summary judgment procedures, and the jurisprudence that has grown up around Rule 56 is, therefore, the most fertile source of information about administrative summary judgment. Thus, “[w]ith minor individual modifications, the summary judgment procedures should be similar in most agencies [to those under Rule 56].” 1 Charles H. Koch, Jr., Administrative Law & Practice 5.78, at 419 (1985). Hence, we reject petitioner‘s contention that Rule 56 precedents are inapposite in proceedings before administrative agencies.
Departure from Precedent
The linchpin of petitioner‘s final procedural argument is the notion that the Board broke new ground in patterning its inquiry after Rule 56. We disagree.
It is well established that agencies are free to announce and develop rules in an adjudicatory setting. See, e.g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974). Of course, there are limits on this freedom. As a general matter, when an adjudicating agency retroactively applies a new legal standard that significantly alters the rules of the game, the agency is obliged to give litigants proper notice and a meaningful opportunity to adjust.7 See, e.g., Aero Mayflower Transit Co. v. ICC, 699 F.2d 938, 942 (7th Cir. 1983); Hatch v. FERC, 654 F.2d 825, 835 (D.C. Cir. 1981). By the same token, an agency “cannot depart significantly from prior precedent `without explicitly recognizing that it is doing so and explaining why.‘” Congreso de Uniones Industriales v. NLRB, 966 F.2d 36, 39 (1st Cir. 1992) (citation omitted); accord Davila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir. 1994).
Although the Board never before has made the equation between Rule 56 and EPA‘s summary judgment procedure so explicit, it traditionally has equated its procedural standard for denial of an evidentiary hearing anent an NPDES permit with the Rule 56 yardstick. On at least three prior occasions, the Board suggested that section 124.75‘s reference to the presentation of “material issues of fact relevant to the issuance of the permit” requires the nonmovant to set forth a “genuine issue of material fact.” See In re City of Jacksonville, Etc., NPDES Appeal No. 91-19 (Aug. 4, 1992), slip op. at 2; In re Miami-Dade Water & Sewer Auth. Dep‘t, NPDES Appeal No. 91-14 (July 27, 1992), slip op. at 17; In re Great Lakes Chem. Corp., NPDES Appeal No. 84-8 (Sept. 3, 1985), slip op. at 4.8
In sum, the procedure to which PRASA objects did not spring suddenly and unannounced from EPA‘s bureaucratic brow. Rather, by the time that the agency decided this case, the concept that only the presence of a genuine issue about a material fact could forestall brevis disposition had taken deep root in administrative soil. Thus, PRASA should have known all along that it would be expected to present a genuine and material dispute in order to earn an evidentiary hearing. Though the Board had never before invoked Rule 56 in haec verba as a guide to section 124.75, any reasonable litigant familiar with administrative practice in general and with EPA‘s precedents in particular should have anticipated that it would be required to present evidence adequate to overcome the functional equivalent of a Rule 56 motion.9
In the last analysis, courts must take a practical, commonsense view of the restrictions that constrain an agency‘s freedom to alter prior practices. Those restrictions, properly construed, do not lock an agency into a position where it invariably must parrot the same phrases or perpetually chant the same mantra. Reasonable refinement and reformulation are both permissible and advisable in administrative adjudication. Nothing more transpired here.
V. THE STRESSED WATERS SHOWINGS
We now move from the procedural to the substantive. In scrutinizing an order of an agency denying an evidentiary hearing, a reviewing court must determine whether the agency‘s findings accurately mirror the record, and if they do, whether those findings warrant denial of a hearing under the pertinent regulations. See Hynson, 412 U.S. at 622. In this instance, the first part of the inquiry tells the tale, for, if PRASA failed to present evidence adequate to create a genuine issue of material fact on one or more critical criteria, as EPA found, then EPA properly denied the requested hearing.
Under
As a practical matter, it will be extremely difficult for most applicants discharging into stressed waters to demonstrate that their discharge will meet the requirements of section 125.61. As a factual matter, the discharge of additional pollutants into an already polluted marine environment virtually always increases or contributes to adverse impact; it is extremely difficult, as a practical matter, to demonstrate that it does not.
44 Fed. Reg. 34,784, 34,806 (June 15, 1979).
EPA concluded that PRASA had not cleared this hurdle, and the Board concurred. It noted that the studies submitted by petitioner principally the USGS report addressed only the current impacts of the facility‘s emissions relative to the current impacts of all other emissions, and did not purport to make predictions regarding future impacts. See Board Op. at 15-16. Accordingly, without defining exactly what type of evidence might surmount the (f)(3) hurdle, the Board determined that petitioner‘s effort came up short. If this determination holds water, then the agency had a right summarily to deny the petition.10
[E]ven “a regulatory provision which seems vague in the abstract may nonetheless be conclusively at odds with a peculiarly deficient item of evidence.” Thus . . . summary judgment may be entered not only for failure to comply with precise regulations, but also “on the basis of manifest noncompliance with general statutory or regulatory provisions . . . .”
Copanos, 854 F.2d at 522 (citations omitted). We agree. Although in some cases an imprecise regulation may require an agency to give an applicant the benefit of the doubt regarding a summary decision, other cases will be so clear-cut as to warrant summary adverse action, notwithstanding the imprecision in the agency‘s standards. We believe the present case falls into the heartland of the latter category.
The Board‘s reasoning is also hauntingly reminiscent of Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982), cert. denied, 461 U.S. 927 (1983), a case involving the Clean Water Act. There, the court of appeals agreed that the Army Corps of Engineers need not hold a hearing on every application for a permit to discharge dredged or fill material into navigable waters. Id. at 1174-83. One reason given was that the petitioner
apparently decided not even to attempt to make the three showings required under [the applicable regulations]. Procedural improvements in the nature of trial-type safeguards could do nothing to remedy so fundamental a flaw in the prima facie case.
Id. at 1183 (footnote omitted).
PRASA does not deny that its studies failed to draw direct conclusions regarding future impacts.11 Instead, it attempts to discredit EPA‘s interpretation of the future impacts regulation, labelling it absolutist. This fusillade misses the mark. Though an absolutist interpretation, rendering modifications of secondary treatment requirements for emissions into stressed waters unobtainable, might well be problematic, we do not read the Board‘s opinion in that fashion.
This is not to say that there is no case where discharges into stressed waters would be allowed. Where, for example, the receiving waters are stressed by pollutants other than those in the proposed discharge and such pollutants do not contribute to existing stresses, a 301(h) permit may be appropriate.
Id. at 18 & n.22.
To say more would be to paint the lily. We conclude that EPA did not promulgate an absolutist standard. And, moreover, we find the Board‘s rendition of the evidence to be faithful to the record, its reasoning to be sound, and its position to be well-supported by authority. Consequently, we hold that the Board acted within its authority in denying petitioner an evidentiary hearing and summarily terminating the administrative appeal on the ground that the studies submitted by petitioner failed to make any attempt to satisfy the strictures of
We need go no further. PRASA‘s application for modification and its concomitant request for an evidentiary hearing were fairly considered and appropriately rejected. For the reasons set forth herein, we uphold the agency‘s final action and deny PRASA‘s petition for review.
It is so ordered.