Adams v. U.S. Environmental Protection Agency

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1074

EDWIN F. ADAMS,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR REVIEW OF AN ORDER ISSUED BY
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Before

Torruella, Chief Judge,

Boudin and Stahl, Circuit Judges.

Richard A. Kanoff for petitioner.

Eileen T. McDonough, Environmental Defense Section,

U.S. Department of Justice, with whom Lois J. Schiffer, Acting

Assistant Attorney General, Environmental & Natural Resources
Division, Jeffry T. Fowley, Office of Regional Counsel, and

Stephen J. Sweeney, Office of General Counsel, U.S. Environmental

Protection Agency, were on brief for respondent.

October 25, 1994

TORRUELLA, Chief Judge. Petitioner Edwin F. Adams

requests review of final action taken by the United States

Environmental Protection Agency ("EPA" or "the Agency"). Adams

challenges the EPA's issuance of a National Pollution Discharge

Elimination System ("NPDES") permit under the Clean Water Act

("CWA" or "the Act"), 33 U.S.C. 1251 et seq., for the Town of

Seabrook, New Hampshire ("Seabrook"). The NPDES permit allows

the discharge of effluent from Seabrook's proposed municipal

wastewater treatment facility. Adams alleges that the EPA failed

to comply with its obligations under the Ocean Discharge Criteria

of the Act, 40 C.F.R. 125, Subpart M, which require that the

EPA not allow "unreasonable degradation" from ocean discharges.

Adams has not persuaded us that he was wrongfully denied an

evidentiary hearing or that the Agency otherwise erred in its

treatment of his objections. We therefore uphold the final

action of the EPA and deny Adams' petition for review.

I. BACKGROUND

A. General Overview

Seabrook has undertaken the construction of a municipal

wastewater treatment plant ("the plant") to resolve problems

caused by failing septic systems within the town. Because

Seabrook's septic systems were failing, effluent was flowing into

Seabrook's coastal waters. This condition increased bacteria

levels in the coastal waters, caused closure of coastal areas to

shellfishing, and restricted the use of the waters for swimming.

Seabrook's proposed plant would collect sewage that would

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otherwise be released from septic systems into the coastal

waters.

The plant, to be constructed on Wright's Island in

Seabrook, will consist of a collection and transportation system,

a treatment facility, an ocean outfall, and sludge processing

facilities. The plant will discharge its treated effluent in

approximately 30 feet of water, at a distance approximately 2100

feet from the Seabrook coastline, about 1000 feet north of the

New Hampshire/Massachusetts border.

B. The Clean Water Act Statutory and Regulatory
Framework

Congress enacted the CWA "to restore and maintain the

chemical, physical, and biological integrity of the Nation's

waters" through the reduction and eventual elimination of the

discharge of pollutants into these waters. 33 U.S.C. 1251(a);

Town of Norfolk v. United States Army Corps of Engineers, 968

F.2d 1438, 1445 (1st Cir. 1992). Under the Act, no pollutant may

be emitted into this nation's waters unless a NPDES permit is

obtained. Puerto Rico Aqueduct & Sewer Authority v. U.S.E.P.A.,

Appeal No. 93-2340, slip op. at 2 (1st Cir. August 31, 1994); see

33 U.S.C. 1311(a), 1342.

NPDES permits are issued by the EPA or, in those

jurisdictions in which the EPA has authorized a state agency to

administer the NPDES program, by a state agency subject to EPA

review. American Petroleum Inst. v. E.P.A., 787 F.2d 965, 969

(5th Cir. 1986); see 33 U.S.C. 1342. NPDES permits contain 1)

effluent limitations that reflect the pollution reduction

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achievable by using technologically practicable controls, see 33

U.S.C. 1311(b)(1)(A), 1314(b); and 2) any more stringent

pollutant release limitations necessary for the waterway

receiving the pollutant to meet "water quality standards." See

33 U.S.C. 1311(b)(1)(C) and 1312(a). See also American Paper

Institute, Inc. v. U.S.E.P.A., 996 F.2d 346, 349 (D.C. Cir.

1993).

Additionally, a NPDES permit for a discharge into a

territorial sea or the ocean must incorporate Ocean Discharge

Criteria ("ODC"). 33 U.S.C. 1343(a) and (c)(1). See American

Petroleum Inst., 787 F.2d at 970. The EPA's ODC guidelines

require it to determine, after considering a number of factors,

whether a discharge will cause "unreasonable degradation" of the

marine environment. See 40 C.F.R. 125.120-125.124. The EPA

will not issue an NPDES permit where it determines that the

discharge will cause an unreasonable degradation of the marine

environment. See 40 C.F.R. 125.123(b)-(d). Discharges in

compliance with state water quality standards "shall be presumed

not to cause unreasonable degradation of the marine environment,

for any specific pollutants or conditions specified in the

variance or the standard." 40 C.F.R. 125.122(b).

C. The Procedural Framework

An applicant initiates the NPDES process when it files

a permit application providing information regarding the planned

facility and its proposed discharges. See 40 C.F.R. 124.3.

The applicant must also provide the EPA with certification from

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the state in which the discharge originates. 33 U.S.C. 1341.

By its certification, the state confirms that the discharge, as

permitted, assures compliance with all applicable state water

quality standards and, if necessary, specifies any additional

effluent limitations, or other permit conditions, needed to

ensure compliance with the state's water quality standards. See

id.; 40 C.F.R. 124.55.

The EPA then prepares and issues a draft permit and

explanatory fact sheet. See 40 C.F.R. 124.6, 124.8, and

124.56. The EPA gives public notice, which initiates a 30-day

public comment period. See 40 C.F.R. 124.10(a)(1)(ii) and

(b)(1). During the public comment period, all persons who

believe any condition of a draft permit is inappropriate must

raise all reasonably ascertainable issues and arguments in

support of their positions. 40 C.F.R. 124.13. During this

period, any interested person can request a public hearing. 40

C.F.R. 124.11. After the close of the public comment period,

the Regional Administrator determines whether a final permit

should be issued, based on the administrative record compiled

during the public comment period. See 40 C.F.R. 124.15,

124.18.

After the EPA issues a final permit decision, an

interested party may request an evidentiary hearing to contest

the resolution of any questions raised during the public comment

period. See 40 C.F.R. 124.74(a). The Regional Administrator

then grants or denies the request for a hearing. See 40 C.F.R.

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124.75(a)(1).

If a Regional Administrator denies a request for an

evidentiary hearing, the denial becomes final agency action

within thirty days unless an appeal is made to the Environmental

Appeals Board ("the EAB"). See 40 C.F.R. 124.60(c)(5) and

124.91. An EAB order denying review renders the Regional

Administrator's previous decision final. See 40 C.F.R.

124.91(f)(1). Finally, once an EPA permit decision has become

final, any interested person may obtain judicial review of the

decision by petitioning for review in the Circuit Court of

Appeals. 33 U.S.C. 1369(b)(1).

D. Seabrook's Permit Proceedings

In May 1988, Seabrook applied for an NPDES permit to

allow the discharge of the treated wastewater from its proposed

plant into the Gulf of Maine. The EPA reviewed the application,

and on September 23, 1991, issued a draft permit approving such

discharges.

The EPA determined that the proposed discharge would

not unreasonably degrade the marine environment. The EPA found

that the initial dilution and rapid dispersion of the discharge,

combined with the anticipated lack of nonconventional pollutants,

would make bioaccumulation of pollutants unlikely. The EPA

therefore concluded that the various forms of marine life would

not be adversely impacted. While the EPA recognized that a small

area around the discharge site would have to be closed to

shellfishing pursuant to requirements of the United States Food

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and Drug Administration, because the Massachusetts Division of

Marine Fisheries did not consider this area to be a significant

shellfish resource, the EPA concluded that this closure would not

represent a significant loss of use.1 The EPA also noted that

the construction of the plant could eliminate most of the

closings of nearby bathing beaches necessitated by high

concentrations of coliform bacteria that were believed to be

caused by the failing septic systems in Seabrook.

In early September 1991, the EPA established a public

comment period from September 25, 1991 through October 29, 1991,

and scheduled public hearings for October 22 and 23, 1991, in

both Seabrook and Salisbury, Massachusetts. On October 23,

Adams, who owns a beach-front home on the Gulf of Maine,

submitted a written comment presenting eight issues which he

believed should be addressed.

On October 26, 1992, the State of New Hampshire

certified that the Seabrook permit was consistent with state

water quality standards.

On November 13, 1992, the EPA issued Seabrook's NPDES

final permit for the treatment plant, after consideration of the

administrative record, including the public comments and the

state certification.

On December 16, 1992, Adams filed a request for an

evidentiary hearing with the Regional Administrator. In this

1 The closure zone was ultimately limited to New Hampshire
waters.

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request, Adams raised several issues which he claimed established

material issues of fact warranting an evidentiary hearing under

40 C.F.R. 124.74. Specifically, Adams contended that:

1) The dilution calculations were
incorrect and, even if the calculations
were correct, the public was not
protected from viruses, thereby
violating 40 C.F.R. 125.122(6).

2) The outfall of the treatment plan, as
designed, "is not in the best interests
of the United States or the Town of
Seabrook" and would unreasonably
depreciate the recreational value of the
beach in violation of 40 C.F.R.
125.121(e)(3), while benefitting only the
few residents of Seabrook.

3) The closure of the zone immediately
around the outfall to shellfishing
violated a New Hampshire law and 40
C.F.R. 125.122(7).

4) If the permit was to be issued, it
should be amended to include conditions
requiring Seabrook a) to post signs
warning of the risk of viral infection,
and b) requiring that divers periodically
inspect the manifold for storm damage or
other possible problems.

5) The state permit issued by the New
Hampshire Wetlands Board was illegal
under state law.

6) There was no evaluation of alternate
locations for the outfall.

On January 5, 1993, the Regional Administrator denied

Adams' request for a hearing after concluding that Adams had

failed to raise material issues of fact with respect to his

various challenges, as required by 40 C.F.R. 124.75(a)(1).

Adams then petitioned the EAB for review of the

Regional Administrator's denial of his request for an evidentiary

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hearing. The EAB denied the petition for review, concluding that

Adams had failed to satisfy various procedural requirements with

respect to raising objections to the final permit, including

failing to raise issues during the public comment period, and

failing to satisfy pleading requirements and raise material

issues of fact which required a hearing, in his request for an

evidentiary hearing.

Adams now appeals the Agency's final action to this

Court.

II. STANDARD OF REVIEW

Judicial review of the EPA's action in issuing a NPDES

permit under the Act is governed by provisions set forth in the

Administrative Procedure Act ("APA"), 5 U.S.C. 701-706. Under

the APA, the applicable standard of review is whether the EPA's

action was "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. 706(2)(A); see

Puerto Rico Aqueduct & Sewer Authority, Appeal No. 93-2340, slip

op. at 7; Puerto Rico Sun Oil Co. v. U.S.E.P.A., 8 F.3d 73, 77

(1st Cir. 1993). A court should not set aside agency actions as

arbitrary and capricious unless the actions lack a rational

basis. Caribbean Petroleum Corp. v. U.S.E.P.A., 28 F.3d 232, 234

(1st Cir. 1994) (citations omitted). The scope of review under

the "arbitrary and capricious" standard is therefore narrow, and

a court should not substitute its judgment for that of the

agency. Caribbean Petroleum Corp., 28 F.3d at 234 (quoting Motor

Vehicles Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S.

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29, 43 (1983)).

An agency is entitled to deference with regard to

factual questions involving scientific matters in its own area of

expertise. Puerto Rico Aqueduct & Sewer Authority, Appeal No.

93-2340, slip op. at 8 (citations omitted). "Mixed questions of

law and fact, at least to the extent that they are fact-

dominated, fall under this rubric." Id. (citation omitted).

Similarly, we defer to an agency's interpretation of a statute

that it is charged with enforcing, and our deference increases

when the agency interprets its own regulations. Id.

Like other executive agencies acting
within their respective bailiwicks, EPA
is due substantial deference in
interpreting and implementing the Clean
Water Act -- "so long as [its] decisions
do not collide directly with substantive
statutory commands and so long as
procedural corners are squarely turned."

Caribbean Petroleum Corp., 28 F.3d at 234 (quoting Puerto Rico

Sun Oil, 8 F.3d at 77) (other citations omitted); see generally

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S.

837, 842-45 (1984).

III. Adams' Claim That The EPA Failed To Comply

With the Ocean Discharge Criteria

In his petition for review, Adams claims that the

Agency erred when it denied his request for an evidentiary

hearing with respect to his contention that the EPA failed

properly to consider the ODC when it issued the NPDES permit for

the Seabrook plant. Specifically, Adams claims that 1) prior to

issuing the permit, the EPA failed properly to evaluate a number

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of relevant factors, including the location and design of the

outfall, dilution limits, and the impacts of the discharge on

human health and recreational uses; 2) the EPA improperly

permitted a discharge which would result in unreasonable

degradation; and 3) the EPA improperly issued a NPDES permit

without considering local environmental conditions and without a

required modification/revocation clause.2 The EPA claims that

the EAB properly concluded that Adams failed adequately to raise

these various contentions during the public comment period and

Adams therefore has waived his right to pursue these challenges

on their merits.

In reviewing agency action, this Court will not

consider issues which a petitioner failed to present during the

administrative process in accordance with the relevant procedural

requirements. See, e.g., Massachusetts Dep't of Public Welfare

v. Secretary of Agriculture, 984 F.2d 514, 524 (1st Cir.), cert.

denied, 114 S. Ct. 81 (1993). We apply the doctrine of

procedural default in the administrative context because it

serves three purposes which are relevant here:

2 40 C.F.R. 125.123(d) requires a clause in a NPDES permit
which allows for the modification or revocation of any permit if
continued discharge causes unreasonable degradation. The
regulation only requires this clause, however, if the EPA has
insufficient information to determine whether there will be
unreasonable degradation at the time it issues the permit. See

id.; 40 C.F.R. 125.123(c). While this regulation does not

appear to apply to the Seabrook permit, because the EPA did not
find that it had insufficient information when it issued the
permit, Adams argues that the Seabrook permit should include such
a revocation/modification clause. Because Adams did not raise
this contention in his request for an evidentiary hearing, as we
will discuss, he has forfeited this claim.

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First, when the administrative agency is
given an opportunity to address a party's
objections, it can apply its expertise,
exercise its informed discretion, and
create a more finely tuned record for
judicial review. . . .

A second reason for applying strict rules
of procedural default in the
administrative context is to promote
judicial economy. . . .

Finally, enforcing procedural default
solidifies the agency's autonomy by
allowing it the opportunity to monitor
its own mistakes and by ensuring that
regulated parties do not simply turn to
the courts as a tribunal of first resort.

Id. at 523.

As a preliminary matter, we note that in his petition

for review, Adams has meaningfully refashioned and refined his

original objections to the EPA's permitting process which he

raised during the course of the administrative process. When we

review Adams' claims, we consider only the objections he raised

during the administrative process.3 See id. at 524; cf. Smith

v. Massachusetts Dept. of Corrections, 936 F.2d 1390, 1397 n.10

(1st Cir. 1991) (finding that arguments not advanced in the court

below cannot be raised for the first time on appeal). These

original objections, which Adams continues to advance in this

appeal, involve several issues regarding the EPA's alleged

3 Adams' petition for review to the EAB similarly embellished
the objections he made in his original evidentiary request to the
Regional Administrator. The EAB could not address these refined
objections for the first time on Adams' appeal to it. See In re

Matter of Broward County, Florida, NPDES Appeal No. 92-11, 18,

n.29 (1993). ("the lack of requisite specificity in the
evidentiary hearing request cannot be cured by providing greater
specificity, for the first time, on appeal.").

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failure to properly evaluate the ODC: the location and design of

the outfall, the EPA's calculation of dilution limits, and

whether the EPA properly considered the impact of the discharge

on the public's health and shellfishing.4

With respect to Adams' contentions that the EPA failed

to comply with ODC regulations when issuing the permit to the

Seabrook plant, the Regional Administrator concluded that Adams

had failed to raise issues of material fact having to do with

outfall location, dilution limits, and the effect of the

discharge on health and shellfishing, which justified an

evidentiary hearing. In deciding to deny review of this

decision, the EAB found that Adams had not properly raised the

issue of ODC compliance during the public comment period.

Therefore, the EAB did not reach the question of the adequacy of

Adams' evidentiary request. Consequently, we must first

determine whether the Agency arbitrarily or capriciously barred

Adams from raising these issues because of a procedural default,

either because he failed to raise the issues at the public

comment stage, or in his request for an evidentiary hearing.5

4 In his original evidentiary request, Adams also claimed that
the state permit issued by the New Hampshire Wetlands Board was
illegal under state law. The Agency denied Adams' request
because it found that this was an issue of state law not
appropriately before the EPA. Adams does not now raise this
argument in his petition for review.

5 We note that by virtue of the EAB's denial of Adams' petition
for review, the Regional Administrator's initial decision
constituted final agency action. See 40 C.F.R. 124.91(f).

Because the EAB premised its denial of review, in part, on Adams'
alleged failure to raise the issue of the EPA's compliance with
the ODC in the public comment period, and because the EPA

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A. The Public Comment Period

When the EPA promulgated its procedural regulations

governing the public comment period, the Agency anticipated that

most policy and technical issues would be decided as part of the

public comment period, which is the most open, accessible forum

possible and which comes at a stage where the Agency has the

greatest ability to modify a draft permit. 44 Fed. Reg. 32,885

(1979). Pursuant to 40 C.F.R. 124.13, "all persons . . . who

believe any condition of a draft permit is inappropriate or that

the Director's tentative decision to . . . prepare a draft permit

is inappropriate, must raise all reasonably ascertainable issues

and submit all reasonably available arguments supporting their

position by the close of the public comment period," in order to

contest a final permit determination in an evidentiary hearing or

to preserve an issue for review by the EAB. Additionally, 40

C.F.R. 124.76 provides that "[n]o issues shall be raised by any

party that were not submitted to the administrative record . . .

as part of the preparation of and comment on a draft permit

unless good cause is shown for the failure to submit them."

These regulations are intended to alert the EPA to

potential problems with the draft permit and to ensure that it

has an opportunity to address those problems before the permit

becomes final. In the matter of Broward County, Florida, NPDES

Appeal No. 92-11, 11 (1993). The regulations essentially

advances this as the grounds to uphold the Agency's final action,
we will address this contention.

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require that:

[c]omments must be significant enough to
step over a threshold requirement of
materiality before any lack of agency
response or consideration becomes of
concern. The comment cannot merely
state that a particular mistake was made
. . . ; it must show why the mistake was
of possible significance in the results.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense

Council, 435 U.S. 519, 553 (1978) (citations omitted). This

threshold of materiality standard is satisfied when comments are

presented in a way which could reasonably have permitted the

agency to examine those contentions. Northside Sanitary

Landfill, Inc. v. Thomas, 849 F.2d 1516, 1520-21 (D.C. Cir.

1988), cert. denied, 489 U.S. 1078 (1989).6

When construing this standard, it must be considered in

the context of the broad purpose of the public participation

rules. Public participation in the
development, revision, and
enforcement of any regulation,
standard, effluent limitation, plan
or program established by the

6 While in some circumstances a petitioner's burden to present
its challenges will be straightforward and fairly easy to
satisfy, it should be noted that a petitioner's responsibility to
present its position and contentions becomes heavier when asking
an applicant for a permit or an agency to "embark upon an
exploration of uncharted territory." Citizens for Clean Air v.

U.S.E.P.A., 959 F.2d 839, 846-47 (9th Cir. 1992) (finding that

EPA's decision that petitioner failed to satisfy threshold of
materiality standard was correct, when petitioner requested
applicant to consider recycling as a best available control
technology, which involved "uncharted territory," and the
petitioner's suggestion alone, which lacked specific or
quantifiable support, could require the applicant to undertake
time-consuming costly studies); see Vermont Yankee Nuclear Power,

435 U.S. at 553. Here, Adams' objections do not present such an
exploration of uncharted territory.

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Administrator or any State under this
chapter shall be provided for,
encouraged and assisted by the
Administrator and the States.

33 U.S.C. 1251(e). Congress enacted public participation rules

understanding that "these regulations would do more than pay lip

service to public participation; instead '[t]he public must have

a genuine opportunity to speak on the issue of protection of its

waters' on federal, state and local levels." Natural Resources

Defense Council, Inc. v. U.S.E.P.A., 859 F.2d 156, 177 (D.C. Cir.

1988) (citations omitted) (construing public participation

regulations in state enforcement process). The legislative

history of the CWA also echoes the desire "that its provisions be

administered and enforced in a fishbowl-like atmosphere." Id. at

175 (citing Environmental Policy Division, Congressional Research

Service, Library of Congress, A Legislative History of the Water

Pollution Control Act Amendments of 1972, at 249).

We believe that the EAB's determination that Adams

failed properly to raise his concerns regarding the EPA's

compliance with the ODC during the public comment period was not

supported by the evidence and lacked a rational basis. A careful

review of the record indicates that Adams and other participants

in the public comment period submitted statements which satisfied

the threshold requirement of materiality by alerting the EPA to

their concern that the EPA had not adequately complied with the

mandates of the ODC when it issued the draft permit to the

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Seabrook plant.7 In his written comments to the EPA during the

public comment period, Adams raised the following concern:

The E.P.A. has not carried out the intent
of Congress in relation to the Water
Quality Act of 1987, Public Law 100-4,
125-122, 125-123, 125-124, 227-27.
Therefore, it is impossible for the Town
to comply with the intent of Congress.

With his references to the public laws, Adams specifically refers

to the ODC. Additionally, Adams' written comments indicate that

he challenged the design and location of the outfall, and the

accuracy of information presented by the Town engineers regarding

the outfall. Adams also questioned whether the dilution

calculations were correct. Finally, Adams, as well as other

participants, raised concerns about the detrimental impact the

outfall would have on the beaches, and on shellfish and other

marine life.

The public comments do not present technical or precise

scientific or legal challenges to specific provisions of the

draft permit. The purpose of the regulation requiring

participants to raise ascertainable issues, however, is not to

foreclose participation in the process, but to provide notice to

the EPA so that it can address issues in the early stages of the

administrative process. See 44 Fed. Reg. 32,885 (1979); In the

Matter of Broward County, Florida, NPDES Appeal No. 92-11, 11

7 The regulations require that in order to preserve an issue, it
must be raised by any party during the comment period. See 40

C.F.R. 124.76. The person filing the petition for review,
however, does not necessarily have to be the individual who
raised the issue during the comment period. In the Matter of

Broward County, Florida, NPDES Appeal No. 92-11, 11-12 (1993).

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(1993). It would be inconsistent with the general purpose of

public participation regulations to construe the regulations

strictly. Such a strict construction would have the effect of

cutting off a participant's ability to challenge a final permit

by virtue of imposing a scientific and legal burden on general

members of the public who, initially, simply wish to raise their

legitimate concerns regarding a wastewater facility that will

affect their community, in the most accessible and informal

public stage of the administrative process, where there is

presumably some room for give and take between the public and the

agency. We believe that Adams and the other participants

adequately raised their objections during the public comment

period, and conclude that the EAB ignored the record and acted

arbitrarily and capriciously when it found that Adams had failed

to do so.8

B. Adams' Request for an Evidentiary Hearing

1. Procedural Requirements

Procedurally, the evidentiary hearing process was

designed to address "contested factual issues" requiring cross-

8 Following the public comment period, the Agency issued a
"Response to Comments" as required by 40 C.F.R. 124.17. This
regulation requires that the agency "[b]riefly describe and
respond to all significant comments on the draft permit . . .
raised during the public comment period . . . ." 40 C.F.R.
124.17. In this response, the EPA stated that it had in fact,
assessed relevant dilution limits and the Seabrook plant's impact
on shellfishing, the impact on beaches, and health risks
associated with the discharge. The EPA also responded that the
outfall location and the proposed level of effluent treatment met
existing EPA criteria and standards. Despite Adams' contention
to the contrary, this response, in light of the nature of the
public comments, was entirely adequate.

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examination. 44 Fed. Reg. 32,885 (1979). As we stated earlier,

following the EPA's issuance of a final permit, the relevant

regulations allow a participant to request an adjudicatory

hearing. The regulations have specific pleading requirements

mandating that requests "state each legal or factual question

alleged to be at issue, and their relevance to the permit

decision, together with a designation of the specific factual

areas to be adjudicated and the hearing time estimated to be

necessary for adjudication." 40 C.F.R. 124.74(b)(1).

Additionally, the request shall contain "[s]pecific references to

the contested permit conditions, as well as suggested revised or

alternative permit conditions . . . which in the judgment of the

requester, would be required to implement the purposes and

policies of the CWA." 40 C.F.R. 124.74(c)(5). B e y o n d

satisfying these pleading requirements, 40 C.F.R. 124.75(a)(1)

requires that requests for an evidentiary hearing set forth

"material issues of fact relevant to the issuance of the permit."

The EPA has construed this regulation as an administrative

summary judgment standard, and has required an applicant to

present a genuine and material factual dispute in order to be

entitled to an evidentiary hearing. We have recently upheld the

EPA's construction of this regulation, finding that the

regulations "lawfully can be read to incorporate this binary

test, featuring genuineness and materiality." Puerto Rico

Aqueduct and Sewer Authority, Appeal No. 93-2340, slip op. at 10.

In applying this standard, we noted that Fed. R. Civ. P. 56 "is

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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." Id. at 15.

2. The Substantive Law

In order to determine what facts are material, we must

look to the controlling substantive law. See, e.g., Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("[o]nly disputes

over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary

judgment."). Pursuant to the ODC regulations, the EPA is

required to determine whether a discharge will cause unreasonable

degradation of the marine environment. See 40 C.F.R.

125.123.9 Alternatively, discharges in compliance with "State

9 The EPA determines whether or not a discharge will cause
unreasonable degradation based on a consideration of the
following:
1) The quantities, composition, and
potential bioaccumulation or persistence
of the pollutants to be discharged;

2) The potential transport of the
pollutants by biological, physical, or
chemical processes;

3) The composition and vulnerability of
potentially exposed biological
communities, including the presence of
unique species or communities of species,
endangered or threatened species; and
species critical to the structure or
function of the ecosystem;

4) The importance of the receiving water
area to the surrounding biological
communities, including the presence of
spawning sites, nursery/forage areas,

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water quality standards shall be presumed not to cause

unreasonable degradation of the marine environment, for any

specific pollutants or conditions specified in the variance or

migratory pathways, areas necessary for
critical life stages and functions of an
organism;

5) The existence of special aquatic
sites, including marine sanctuaries,
parks, monuments, national seashores,
wilderness areas, and coral reefs;

6) Potential direct or indirect impacts
on human health;

7) Existing or potential recreational and
commercial fishing;

8) Any applicable requirements of an
approved Coastal Zone Management Plan;

9) Such other factors relating to the
effects of the discharge as may be
appropriate;

10) Marine water quality criteria.

See 40 C.F.R. 125.122(a). "Unreasonable degradation" of the

marine environment is defined as any of the following:

1) Significant adverse changes in
ecosystem diversity, productivity, and
stability of the biological community
within the area of discharge and
surrounding biological communities;

2) Threat to human health through direct
exposure to pollutants or through
consumption of exposed aquatic organisms;
or

3) Loss of aesthetic, recreational,
scientific or economic values which is
unreasonable in relation to the benefit
derived from the discharge.

40 C.F.R. 125.121(e)(1-3).

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the standard." 40 C.F.R. 125.122(b). While this presumption

is rebuttable, the EPA is entitled to rely upon it unless

available data indicates that a discharge would in fact cause

unreasonable degradation. 45 Fed. Reg. 65,945 (1980).

In this case, the State of New Hampshire certified that

the degradation caused by the Seabrook plant was consistent with

New Hampshire water quality standards. The EPA relied on New

Hampshire's certification in issuing Seabrook's final permit.

3. Adams' Evidentiary Request

In his evidentiary hearing request, Adams had the

burden to point to evidence in the administrative record which

would rebut the presumption that the discharge from the Seabrook

plant would not cause unreasonable degradation. See, e.g., A.C.

Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1037

(Fed. Cir. 1992). In his request, Adams challenged the location

and design of the outfall and the calculation of the dilution

limits, and claimed that the permitted discharge would threaten

human health and cause a significant shellfish closure zone.

Adams did not point to any evidence in the record which indicated

that New Hampshire erroneously granted its certification, or that

the EPA could not rely on this certification because available

data indicated that the discharge from the plant would, in fact,

cause unreasonable degradation of the marine environment. We

hold that the EPA did not act arbitrarily or capriciously in

finding that each of Adams' challenges failed to present a

genuine issue of material fact showing that the EPA was not

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entitled to rely on the regulatory presumption.

In what follows, we address Adams' specific

contentions, showing why each individually is procedurally

deficient.10

a. The Outfall Design and Location

In his request foran evidentiary hearing, Adams stated:

This outfall as designed is not in the
best interests of the United States or
the Town of Seabrook. If for no other
reason the permit should be denied on
this basis. It simply is not in anyone's
interest to have the people of the United
States swimming in sewerage water even
if has been bleached so as to be
invisible.

If there were any benefit to this outfall
at all it would only be to the residents
of Seabrook who would use the sewer and
cared not about the Beach or the beach
environment. There certainly would be no
benefit to citizens of the rest of the
United States, but on the contrary,
anyone that used the beach would be more
at risk to viral diseases or just the
knowledge of swimming in filth is
certainly no benefit and compared to the
cleanliness that exists at the beach now,
the depreciation of recreational value
(as in 40 C.F.R. 125.121(3)) is not
reasonable in relation to the small
benefit to a few.

10 In his evidentiary hearing request, Adams requested that two
conditions, warning signs and visual inspections, be added to the
permit. Adams does not appear to advance that contention here in
his petition for review. With respect to this request, however,
we do not believe that the Agency arbitrarily or capriciously
concluded that the inclusion of these permit conditions was not
within the scope of issues raised during the public comment
period, and that Adams failed to establish that he had good cause
for not raising both of these issues at the appropriate time.

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Adams also claimed that the EPA failed to consider alternative

sites for this outfall. In response, the Regional Administrator

denied Adams' request, explaining that Adams had failed to raise

a genuine issue of material fact regarding outfall location which

justified an evidentiary hearing. The EAB did not then disturb

this determination.11

The Agency did not act arbitrarily or capriciously in

denying Adams' request for an evidentiary hearing. Adams'

evidentiary request is completely bereft of any references to

facts in the record which would create a "genuine" issue that a

discharge from the planned outfall location would cause

unreasonable degradation of the marine environment, which would

be sufficient to rebut the regulatory presumption. Rather, Adams

offered a conclusory opinion that the outfall, as designed, was

not in the best interest of Seabrook or the United States because

it was not in anyone's interest to have people swimming in

11 In his petition for review, Adams does not appear to argue
that the EPA's alleged failure to consider alternative sites for
the outfall was in itself a violation of any statute or
regulation. We note, however, that the Agency stated that the
EPA is not required to evaluate alternative sites for an outfall
that meets CWA requirements unless review is required under the
National Environmental Policy Act ("NEPA"). See 33 U.S.C.

1371(c); 42 U.S.C. 4321 et seq. Adams did not challenge this

determination. There also does not appear to be any dispute that
the Seabrook permit is exempt from the NEPA requirements because
no federal funding is involved in the plant, and because the
plant is not a new source as defined in the CWA. See Natural

Resources Defense Council, Inc. v. U.S.E.P.A., 859 F.2d 156, 167

(D.C. Cir. 1988). Because the EPA had no legal obligation to
consider alternative locations for the outfall involved in the
permit, the Agency did not act arbitrarily or capriciously in
finding that no genuine issue of material fact was raised by
Adams' objection that the EPA did not consider such locations.

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sewage. This is not sufficient to warrant a formal evidentiary

hearing.

Adams also suggested that the EPA erred because, based

on the planned outfall location, the depreciation of the

recreational value was not reasonable in relation to the

benefits, referring to 40 C.F.R. 125.121(e)(3). This

regulation partially defines unreasonable degradation of the

marine environment as the "[l]oss of esthetic, recreational,

scientific or economic values which is unreasonable in relation

to the benefit derived from the discharge." Id. Adams' request

for a hearing, however, simply tracked the language of the

regulation and stated his ultimate conclusion that the

depreciation of the recreational value was not reasonable in

relation to the benefits. The only rationale Adams offered for

this conclusion was the unsupported statement that there can be

no benefit to anyone when people would be swimming in filth and

subjected to a greater risk of viral diseases. Adams has

completely failed to point to any evidence showing that the

proposed discharge from the outfall would cause the loss of any

recreational value, much less evidence that would indicate that

there was a "genuine" factual dispute that such a loss would be

unreasonable in relation to the benefits to be derived from the

discharge. See 40 C.F.R. 125.121(e)(3). We agree with the EPA

that Adams has not tendered any evidence which on its face

creates a genuine issue of material fact showing that the EPA's

reliance on the state certification was improper, and we believe

-25-

that the EPA properly denied the requested hearing. See, e.g.,

Puerto Rico Aqueduct & Sewer Authority, Appeal No. 93-2340, slip.

op. at 20-24. b. The Dilution Calculations
b. The Dilution Calculations

Adams contends that the Agency should have granted his

request for an evidentiary hearing on the issue of whether the

EPA properly calculated the dilution limits of the effluent. A

generous reading of Adams' evidentiary request indicates that he

believed that the EPA improperly calculated dilution limits and,

because of these improper calculations, the EPA failed properly

to consider the effect of viruses on marine life and the viruses'

indirect effect on humans. Additionally, Adams claimed that even

if the EPA properly calculated the dilution limit, the Agency

still failed to evaluate the effect of viruses. Adams stated

that this was a direct violation of 40 C.F.R. 125.122(6), which

required the rescission of the entire permit.

The Regional Administrator denied Adams' request

because he failed to raise a genuine issue of material fact. The

EAB did not disturb this finding.

As a preliminary matter, as we have previously noted,

the EPA relied on the New Hampshire state certification when it

issued the Seabrook permit. When Seabrook applied for its

permit, the New Hampshire Department of Environmental Services

analyzed the draft permit to ensure that the permit effluent

conditions were stringent enough to assure that the discharge

would not violate state water quality standards, which were

designed to protect public health and recreational activities in

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and on the water. See N.H. Code Admin. R. [N.H. Dept. of

Environmental Services, Water Supply & Pollution Control Div.]

Env-Ws 430.01 (1990) (stating that New Hampshire's water quality

standards are "intended to protect public health and welfare" and

provide for "the protection and propagation of a balanced

indigenous population of fish, shellfish, and other aquatic

organisms and wildlife, and provide for such uses as recreational

activities in and on the waters"). The New Hampshire Department

of Environmental Services then concluded that if the permit was

modified to incorporate a maximum daily total coliform limit to

be measured on a daily basis, state certification would be

granted. According to the state certification, the mandated

coliform limit was necessary because the affected water was "used

for the growing or taking of shellfish for human consumption."

The EPA then incorporated the required coliform limits when it

issued the final permit.

The EPA did not act arbitrarily or capriciously when it

found that Adams failed to show why the EPA's reliance on New

Hampshire's certification, which provided for coliform limits to

protect the public's health, was inadequate. Adams failed to

point to data in the record which established that the proposed

discharge would cause unreasonable degradation of the marine

environment, because the discharge would threaten human health

through direct or indirect pathways, through the presence of

viruses. See 40 C.F.R. 125.122(a)(6), 125.121(e)(2).

Rather, Adams simply believed that the EPA should establish

-27-

effluent limits for viruses as an alternative or additional

measure to protect human health. The EPA pointed out, however,

that New Hampshire regulates coliform bacteria as an indicator

for the presence of human wastes, and this limit was designed to

protect the designated uses of swimming, fishing, and other

recreational purposes. Additionally, the Regional Administrator

noted that: "[i]t is EPA's judgment that attempting to establish

a separate virus effluent limit here would be inadvisable due to,

among other things, problems in detection relating to their small

size, low concentrations, variety and instability in the presence

of interfering solids, and limits on availability of

identification methods." The EPA found, and we agree, that Adams

did not point to any evidence from which a decisionmaker could

find that the State of New Hampshire failed properly to evaluate

the discharge's effect on human health because it did not require

effluent limits for viruses.

To support his statement that the EPA improperly

calculated dilution limits, Adams relied on a September 4, 1991

letter from Martin Dowgert, a Regional Shellfish Specialist with

the FDA to Mr. Richard Roach of the U.S. Army Corps of Engineers

("the FDA letter"), which was a part of the administrative

record.12 The FDA letter calls for the establishment of a

12 Specifically, in his evidentiary request, Adams stated:

As it is generally accepted and also
pointed out in a certain letter from the
F.D.A. to a Mr. Richard Roach . . . the
remedy to high virus populations is very
high dilutions (1/l,000,000,000) or more.

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larger safety zone closed for shellfishing around the proposed

treatment plant outfall, and an area subject to conditional

closure in the event of plant disinfection failure. To support

his opinion that a larger safety zone needed to be created,

Dowgert stated that based on the FDA's preliminary assessment, a

shellfish closure zone would occur in an area represented by a

1000:1 dilution line, and this zone would be an area 4,000 feet

from the outfall. Adams claimed that this reference was at odds

withdilution limitsused by theEPA, whichAdams failedto specify.13

The EPA did not construe Adams' reference to the FDA

letter as raising a genuine issue of material fact regarding the

dilution limits, noting that the FDA did not call for the NPDES

permit to be denied, or for a revision of any term of the NPDES

permit. We do not believe that this finding was arbitrary or

capricious because Adams did not show how this alleged

miscalculation was material to the permitting process.

Subsequent to the FDA letter, New Hampshire issued its

The letter in the above paragraph also
estimates that a 1/1,000 dilution would
not occur until 4,000 feet from the
manifold where as the beach is only 1200
feet at low tide when the dilutions are
apt to be lowered.

13 In his evidentiary request, Adams also stated that no study
was done with respect to the effect of viruses on children
playing in the water at the beach "which will contain only 318.5
parts water to each part of filth laced with viruses." Adams did
not provide any citation as to where this dilution figure came
from or how it was arrived at. We do not believe that this bare
statement was sufficient to create a genuine factual dispute
which would require a formal evidentiary hearing on the issue of
dilution calculations.

-29-

certification after evaluating the effects of the discharge and

concluding that if its maximum coliform limits were incorporated,

the discharge would satisfy state water quality criteria. The

EPA then incorporated those limits, requiring that the Seabrook

plant comply with them. Adams did not point to anything in the

FDA letter which called into question New Hampshire's mandated

coliform limits. Rather, Adams claimed that the EPA originally

miscalculated dilution limits, but then failed to show what the

effects of the alleged miscalculation were, or how the alleged

miscalculation affected the New Hampshire certification process.

c. The Shellfish Closure Zone

In his evidentiary request, Adams stated that the

planned closure of a small area around the outfall to

shellfishing was contrary to New Hampshire law, which provides

that it is for the public good of the state to protect and

preserve its submerged lands under tidal waters from

despoliation. See RSA 482-A:1 (1993).14 Beyond this alleged

14 R.S.A. 482-A:1 (1993), New Hampshire's Water Management and
Protection law, provides in pertinent part:

It is found to be for the public good and
welfare of this state to protect and
preserve its submerged lands under tidal
and fresh waters . . . from despoliation
and unregulated alteration, because such
despoliation or unregulated alteration
will adversely affect the value of such
areas as sources of nutrients for
finfish, crustacea, shellfish and
wildlife of significant value, will
damage or destroy habitats and
reproduction areas for plants, fish and
wildlife of importance, will eliminate,
depreciate or obstruct the commerce,

-30-

violation of state law, Adams argued that because New Hampshire

"has a very small and limited total area for shellfish beds . . .

a loss of a very small area is a significant net loss," which

would therefore be unlawful under 40 C.F.R. 125.122(a)(7).15

To support his contentions, Adams seemed to rely indirectly on

the FDA letter, which suggested that the size of the closed

safety zone should extend to an area 4,000 feet from the outfall.

The Regional Administrator denied Adams' request on the

grounds that he only raised conclusory policy and legal issues,

rather than specifying material factual disputes which were

entitled to consideration in an evidentiary hearing. The EAB

concurred.

We do not believe that the Agency acted arbitrarily or

capriciously in denying Adams' request. Adams again has

challenged the EPA's reliance on the New Hampshire certification,

which was issued after New Hampshire determined that the state's

recreation and aesthetic enjoyment of the
public, will be detrimental to adequate
groundwater levels, will adversely affect
stream channels and their ability to
handle the runoff of waters, will disturb
and reduce the natural ability of
wetlands to absorb flood waters and silt,
thus increasing general flood damage and
the silting of open water channels, and
will otherwise adversely affect the
interests of the general public.

15 40 C.F.R. 125.122(a)(7) provides that the EPA shall
determine whether a discharge will cause unreasonable degradation
of the marine environment based on the consideration of existing
or potential recreational and commercial fishing, including
shellfishing.

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water quality standards, which protect the commercial and

recreational value of shellfishing, would not be contravened.

See N.H. Code Admin. R. [N.H. Dept. of Environmental Services,

Water Supply & Pollution Control Div.] Env-Ws 430.01 (1990).

Adams' claim that the discharge as permitted is unlawful under

RSA 482-A:1, represents a disagreement with the State of New

Hampshire's ultimate legal conclusion that the discharge from the

Seabrook plant would be lawful under specific provisions of New

Hampshire's law. Adams failed to indicate what specific

provision of law New Hampshire ignored or ill-considered. Adams

also failed to point to any evidence showing that a provision of

New Hampshire law was, in fact, violated.

Adams next argues that the shellfish closure zone would

cause an unreasonable degradation of the marine environment under

40 C.F.R. 125.122(a)(7). To establish that this shellfish

closure zone would constitute an "unreasonable degradation,"

Adams would need to show that the closure zone produced a loss of

recreational or economic values which was "unreasonable in

relation to the benefit derived from the discharge." 40 C.F.R.

125.121(e)(3). Adams attempted to show this by offering his

conclusory opinion that because New Hampshire had a limited total

area for shellfish beds, the closure of any area must be

"significant." Adams failed to point to any facts, however,

which showed that the closure zone would cause a loss of any

recreational or economic value, much less that such an alleged

loss would be unreasonable in relation to associated benefits.

-32-

We do not believe that the FDA letter materially

supported Adams' contention. The FDA letter stated that the

shellfish closure zone needed to extend 4,000 feet from the

outfall. The FDA letter, however, does not expressly state, or

otherwise suggest, that such a closure zone would constitute an

unreasonable degradation of the marine environment. See 40

C.F.R. 125.121.(e). The EPA did not act arbitrarily or

capriciously in determining that Adams had failed to raise a

genuine issue of material fact which justified an evidentiary

hearing.

For the foregoing reasons, Adams petition is denied.

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