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City of Taunton, Massachusetts v. United States Environmental Protection Agency

United States Court of Appeals, First Circuit

July 9, 2018

CITY OF TAUNTON, MASSACHUSETTS, Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

          PETITION FOR REVIEW OF AGENCY ACTION OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

          John C. Hall, with whom Philip D. Rosenman and Hall & Associates were on brief, for petitioner.

          Sarah 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 curiae.

          Before Torruella, Lipez, and Thompson, Circuit Judges.

          TORRUELLA, Circuit Judge.

         The 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 decision.

         I.

         A.

         It is 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").

         NPDES 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." [1] 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. § 124.19(a)(2).

         B.

         We also 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.

         This 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.[2] 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).

         In 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.[3] 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).

         At the 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.

         After 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.[4]

         The 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.[5] 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 appeal.

         II.

         The 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 undisturbed unless

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 at 20.

         Here, 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.

         Similarly, 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)).

         A.

         1.

         After 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.

         At the 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. 1979))).

         Yet, 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)).

         We note 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.[6] 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.

         Keeping 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 assertions.[7]

         Because 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.

         2.

         Before 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. ยง 1369(c), which, the City claims, gives us the authority to compel the EPA ...


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