PETITION FOR REVIEW OF AGENCY ACTION OF THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
C. Hall, with whom Philip D. Rosenman and Hall &
Associates were on brief, for petitioner.
A. Buckley, Trial Attorney, United States Department of
Justice, Environment and Natural Resources Division,
Environmental Defense Section, with whom Jeffrey H. Wood,
Acting Assistant Attorney General, Environment and Natural
Resources Division, David J. Kaplan, Trial Attorney, and
Samir Bukhari, Of Counsel, United States Environmental
Protection Agency, Region 1, were on brief, for respondent.
Michael Rubin, Assistant Attorney General, Rhode Island
Attorney General's Office, with whom Peter F. Kilmartin,
Attorney General, State of Rhode Island, on brief as amicus
Torruella, Lipez, and Thompson, Circuit Judges.
TORRUELLA, Circuit Judge.
City of Taunton, Massachusetts (the "City"),
objects to the decision of the Environmental Protection
Agency (EPA) to impose a limit -- through a National
Pollutant Discharge Elimination System (NPDES) permit -- on
the amount of nitrogen that the Taunton Wastewater Treatment
Plant (the "Facility") may discharge. After
considering all of the City's challenges, both procedural
and substantive in nature, we uphold the EPA's permitting
useful to begin with an overview of the legal landscape that
is relevant to this appeal. The Clean Water Act (CWA)
prohibits the "discharge of any pollutant" unless
that discharge complies with NPDES permit requirements. 33
U.S.C. §§ 1311(a), 1342. The EPA is responsible for
issuing NPDES permits unless a state agency is authorized to
do so. Id. § 1342(a)-(c). No Massachusetts
agency is so authorized. Under the CWA, NPDES permits must
include any water-quality-based limitations that are
necessary to ensure compliance with the water quality
standards of the state where the pollutant discharge in
question is to occur, as well as those of any affected
downstream states. See Id. §§
1311(b)(1)(C), 1341(a)(2); 40 C.F.R. §§ 122.4(d),
122.44(d)(4). Giving effect to this requirement, EPA
regulations provide that NPDES permits "must control all
pollutants" that the EPA "determines are or may be
discharged at a level which will cause, have the reasonable
potential to cause, or contribute to an excursion above any
State water quality standard." 40 C.F.R. §
122.44(d)(1)(i); see also Arkansas v.
Oklahoma, 503 U.S. 91, 110 (1992) (explaining how
this framework incorporates state water quality standards
into "the federal law of water pollution control").
permits issue for a period of time not to exceed five years.
33 U.S.C. §§ 1342(a)(3), (b)(1)(B); 40 C.F.R.
§ 122.46(a). Upon receiving a permit renewal
application, the permitting authority -- the EPA, in this
case -- prepares a draft permit setting out the proposed
"effluent limitations, standards, prohibitions . . . and
[other] conditions."  40 C.F.R. § 124.6(d)(1),
(d)(4)(v). So too must the EPA issue a "fact sheet"
that "briefly set[s] forth the principal facts and the
significant factual, legal, methodological and policy
questions considered in preparing the draft permit."
Id. § 124.8(a). The public comment period opens
when the EPA publishes a public notice of the draft permit.
After reviewing the comments submitted during that period,
the EPA issues a final permit decision along with a formal
"response to comments." Id. §§
124.15, 124.17(a). "Any person who filed comments on the
draft permit or participated in a public hearing on the draft
permit may file a petition for review" of the permit
with the Environmental Appeals Board (EAB). Id.
find it useful to provide a brief overview of the facts and
procedural events that are central to this appeal, though we
will also discuss those in greater detail in assessing the
City's various challenges.
appeal revolves around the NPDES permit that the EPA issued
for the Facility in 2015. The City owns the Facility, which
also treats wastewater from the towns of Raynham and Dighton.
The Facility discharges into the estuarine portion of the
Taunton River, which, in turn, flows into Mount Hope Bay.
Located partially in Rhode Island and partially in
Massachusetts, Mount Hope Bay is part of the larger
Narragansett Bay. The Facility is the second-largest
point-source contributor of nitrogen to the Taunton River
watershed. Nitrogen pollution stimulates excessive
plant growth in bodies of water, which can deprive waters of
the oxygen necessary to sustain other organisms -- a process
called "eutrophication." See Upper Blackstone
Water Pollution Abatement Dist. v.
EPA, 690 F.3d 9, 11-12 (1st Cir. 2012) (describing
eutrophication in greater detail).
2005, the City applied to renew its soon-to-expire
2001-issued NPDES permit. The 2001 permit did not limit the
Facility's discharge of nitrogen, but it did require
nitrogen monitoring. The EPA issued a draft permit in 2007,
but its review of the ensuing public comments led it to
conclude that it might be necessary for the permit to impose
nutrient limits. After further research, the EPA issued a
superseding draft permit, along with the mandatory
accompanying fact sheet, in 2013. That draft permit sought to
limit the Facility's nitrogen discharges to an average of
210 lbs. per day. As the fact sheet explained, the EPA found
that limitation necessary after determining that the Taunton
River and Mount Hope Bay "are suffering from the adverse
water quality impacts of nutrient overenrichment, including
cultural eutrophication," and concluding that the
City's nitrogen discharges had the "reasonable
potential" to cause or contribute to that
overenrichment. See 40 C.F.R. § 122.44(d)(1).
City's request, the EPA extended the public comment
period to 90 days, during which time the City submitted a
substantial volume of comments objecting to the nitrogen
limit that the draft permit sought to impose on the Facility.
After the extended public comment period closed, the City
sought on multiple occasions to submit what it characterized
as "supplemental comments." The EPA, however,
rejected these as untimely, and therefore declined to address
them in its response to comments.
the final permit issued, the City appealed to the EAB,
challenging both the need for any nitrogen limit and the
specific limit that the permit imposed. The City also filed
two motions before the EAB to supplement the record with,
among other things, the documents it had previously attempted
to submit with its "supplemental comments." The EAB
denied those motions. The EAB also denied the City's
administrative appeal on the merits, along with the
City's subsequent motion for reconsideration. The final
permit went into effect on June 22, 2016.
City then appealed to us, challenging this final agency
action, see 33 U.S.C. § 1369(b)(1)(F), on
various procedural and substantive grounds. After the parties
filed their appellate briefs, the EPA moved to strike certain
portions of the City's reply brief and supplemental
appendix because they involved documents from outside of the
agency record. In response, the City moved to supplement
the record with the documents at issue. The City also filed a
motion "For Leave to Adduce New Material Evidence and
Compel Respondent's Review of the New Information."
We now resolve these motions and the merits of the City's
Administrative Procedure Act (APA) governs our review of the
EPA's actions and decisions amid the NDPES permitting
process. See City of Pittsfield v.
EPA, 614 F.3d 7, 10 (1st Cir. 2010). Accordingly, we
may only overturn what the EPA has done if we find that it
was "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. §
706(2)(A). More concretely, we are to leave agency action
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.
Motor Vehicle Mfrs. Ass'n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). "This deference goes to the
entire agency action, which here includes both the EPA's
permitting decision and the EAB's review and affirmance
of that decision." Upper Blackstone, 690 F.3d
the "scientific and technical nature of the EPA's
decisionmaking" increases our level of deference.
Id. (citing Balt. Gas & Elec. Co.
v. Nat. Res. Def. Council, Inc., 462 U.S.
87, 103 (1983) (explaining that when an agency is acting
"within its area of special expertise, at the frontiers
of science . . . . as opposed to [making] simple findings of
fact, a reviewing court must generally be at its most
deferential")). We are particularly mindful that
"where a complex administrative statute, like those the
EPA is charged with administering, requires an agency to set
a numerical standard, courts will not overturn the
agency's choice of a precise figure where it falls within
a 'zone of reasonableness.'" Upper
Blackstone, 690 F.3d at 28.
because interpreting and implementing the CWA falls squarely
within the EPA's bailiwick, see Adams
v. EPA, 38 F.3d 43, 49 (1st Cir. 1994), we
defer to its "reasonable interpretation" of that
statute, Upper Blackstone, 690 F.3d at 21. See
also Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 843 (1984) ("[I]f
the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of
the statute."). Finally, the EPA enjoys greater
deference still when interpreting its own regulations.
Upper Blackstone, 690 F.3d at 21. Its interpretation
of those regulations shall be "controlling unless
'plainly erroneous or inconsistent with the
regulation.'" Auer v.
Robbins, 519 U.S. 452, 461 (1997) (quoting
Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 359 (1989)).
briefing before this court concluded, the EPA moved to strike
certain documents in the City's supplemental appendix, in
addition to parts of the City's reply brief that cited
those documents, as outside of the administrative record.
These documents comprised: (1) a 2005 Rhode Island nutrient
policy document; (2) slides prepared by the Narragansett Bay
Commission; and (3) a draft report from the Narragansett Bay
Estuary Program (the "draft NBEP report"). In
response, the City cross-moved to supplement the record. The
City argued that it was entitled to refer to the documents at
issue in rebutting arguments that the State of Rhode Island
had raised in its amicus brief. Specifically, the City
pointed to Rhode Island's contentions that: (1) "The
fact that [the Rhode Island Department of Environmental
Management's] nitrogen limitations for numerous in-state
sewage treatment plants are numerically consistent with the
nitrogen limitation at issue further corroborates the
reasonableness of the EPA's decision"; (2) the
nitrogen limit that the EPA imposed in the Permit is
necessary to ensure compliance with Rhode Island's water
quality standards; and (3) that research by the Narragansett
Bay Estuary Program and the University of Rhode Island
Coastal Institute bolster the EPA's decision.
foreground of our analysis here is the principle that, when
reviewing an agency's decision under the arbitrary and
capricious standard, "the focal point for judicial
review should be the administrative record already in
existence, not some new record made initially in the
reviewing court." Camp v.
Pitts, 411 U.S. 138, 142 (1973); see also Fla.
Power & Light Co. v. Lorion, 470
U.S. 729, 744 (1985) ("[I]f the reviewing court simply
cannot evaluate the challenged agency action on the basis of
the record before it, the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation."); Walter O. Boswell
Mem'l Hosp. v. Heckler, 749 F.2d
788, 792 (D.C. Cir. 1984) ("To review more than the
information before the Secretary at the time she made her
decision risks our requiring administrators to be prescient
or allowing them to take advantage of post hoc
rationalizations." (citing Am. Petrol. Inst.
v. Costle, 609 F.2d 20, 23 (D.C. Cir.
exceptions do exist. We have recognized a pair of situations
in which we have the discretion to supplement the agency
record. Town of Winthrop v. FAA,
535 F.3d 1, 14 (1st Cir. 2008). First, we may consider
supplemental evidence to facilitate our comprehension of the
record or the agency's decision. Id. Examples of
this include agency decisions involving "highly
technical, environmental matters," Valley Citizens
for a Safe Env't v. Aldridge, 886
F.2d 458, 460 (1st Cir. 1989) (Breyer, J.), or when we are
faced with a "failure to explain administrative action
as to frustrate effective judicial review,"
Olsen v. United States, 414 F.3d
144, 155-56 (1st Cir. 2005) (quoting Camp, 411 U.S.
at 142-43). Second, a "strong showing of bad faith or
improper behavior" may also provide occasion to
"order the supplementation of the administrative
record." Town of Norfolk v. U.S. Army Corps of
Eng'rs, 968 F.2d 1438, 1458-59 (1st Cir. 1992)
(citing Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402 (1971)).
that the City's proffered justification for supplementing
the record -- to allow it to respond to arguments raised in
an amicus brief -- does not fit neatly within either of these
exceptions. Without passing judgment on whether that
is a categorically inadequate reason to supplement the agency
record, we find that the City has failed to convince us here
that we should exercise our discretion in this manner.
in mind that our broader adjudicatory task here is to
determine whether, on the basis of the record before it, the
EPA acted arbitrarily or capriciously, we take note of the
City's position that Rhode Island's "assertions
were not the basis of [the] EPA's permit limit
calculations," and that Rhode Island's scientific
and factual averments "were not part of the underlying
agency decision." It would follow, then, that Rhode
Island's assertions also cannot provide a basis for our
affirmance of the EPA's permit decision. So, we do not
find it appropriate or necessary to allow the City to go
beyond the agency record to rebut those
the City has not convinced us that the record should include
the documents at issue in the EPA's motion to strike and
the City's cross-motion to supplement the record, we
grant the former and deny the latter.
oral argument, the City also brought a motion "For Leave
to Adduce New Material Evidence and Compel Respondent's
Review of the New Information." The City anchored that
motion in section 509(c) of the CWA, see 33 U.S.C.
§ 1369(c), which, the City claims, gives us the
authority to compel the EPA ...