City of Pittsfield v. United States Environmental Protection Agency

United States Court of Appeals
For the First Circuit

No. 09-1879

CITY OF PITTSFIELD, MASSACHUSETTS,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE
UNITED STATES ENVIRONMENTAL APPEALS BOARD

Before

Torruella, Lipez and Howard,
Circuit Judges.

Donald L. Anglehart, with whom Law Office of Donald L.
Anglehart, LLC was on brief, for petitioner.
Laurel A. Bedig, United States Department of Justice,
Environment & Natural Resources Division, Environmental Defense
Section, with whom Ignacia S. Moreno, Assistant Attorney General,
Pooja Parika, United States Environmental Protection Agency, Office
of the General Counsel, and Ann Williams and Charlotte Withey,
Regional Assistant Counsel, United States Environmental Protection
Agency, were on brief, for respondent.

July 16, 2010
 HOWARD, Circuit Judge. The City of Pittsfield,

Massachusetts asks us to consider whether the Environmental Appeals

Board (EAB) improperly declined Pittsfield's petition seeking the

Board's review of the Environmental Protection Agency's (EPA) grant

of a National Pollutant Discharge Elimination System (NPDES) permit

for the Pittsfield Wastewater Treatment Plant. Pittsfield sought

changes to the terms of the permit, which was issued pursuant to

section 402 of the Clean Water Act (CWA).1 The EAB held that

Pittsfield had procedurally defaulted because its petition failed

to identify its specific objections to the permit or to articulate

why the Board should assume jurisdiction. We conclude that the

Board did not abuse its discretion in so holding, and we therefore

affirm its denial of Pittsfield's petition.

I. Statutory and Regulatory Background

Congress enacted the CWA to "restore and maintain the

chemical, physical and biological integrity of the Nation's

waters." 33 U.S.C. § 1251(a); see also Rhode Island v. EPA, 378

F.3d 19, 21 (1st Cir. 2004)(discussing legislative purpose). The

CWA makes it unlawful for any person to discharge pollutants into

United States waters without an NPDES permit. 33 U.S.C. §§ 1311(a),

1342(a). NPDES permits typically place limits on the discharge of

pollutants and establish monitoring and reporting requirements.

1
The CWA is codified at 33 U.S.C. §§ 1251–1376.

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See Arkansas v. Oklahoma, 503 U.S. 91, 101-02 (1992)(citing

pertinent statutory and regulatory provisions).

The EPA issues NPDES permits, except in those cases in

which the agency has specifically authorized a state to administer

its own NPDES program subject to EPA review. Massachusetts has not

obtained such authorization, so our focus is on the EPA's

permitting procedures.

When the EPA receives a permit application, its regional

administrator prepares a draft permit, which is then made available

for public comment.2 40 C.F.R. §§ 124.6, 124.10, 124.11. The

administrator may also grant a public hearing during the public

comment period. Id. § 124.11; 124.12(a). At the end of this

process, the regional administrator issues a final permit decision,

along with a written response to all significant comments raised

during the public comment period. Id. § 124.15, 124.17(a). Any

party that participated during the comment period then has thirty

days to petition the EAB for review of the EPA's decision. Id.

§ 124.19(a). Where, as here, the EAB denies review, the permit

becomes administratively final. Id. § 124.19(c).

2
In EPA Region 1, the region charged with enforcing the
agency's environmental laws in New England, the authority of the
Regional Administrator to issue NPDES permits has been delegated to
the Director of the Office of Ecosystem Protection pursuant to
Regional Delegation 2-20. For ease of exposition, and because it
makes no difference in our analysis, we continue to use the term
"regional administrator" here.

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 II. Factual and Procedural Background

The Pittsfield Water Treatment Plant discharges treated

wastewater into the Housatonic River. Until 2005, Pittsfield

operated the plant under an NPDES permit that the EPA had issued in

2000. In June 2005, six months before its existing permit was set

to expire, Pittsfield timely filed an application for renewal of

its permit. In December 2007, the EPA sent Pittsfield a copy of

its draft permit, accompanied by a fact sheet explaining the permit

limits and conditions.3

The city submitted several comments during the comment

period. Among them, it expressed concerns about the new permit's

stricter phosphorous, aluminum, E. coli and copper limits and noted

that the permit appeared to place responsibility on Pittsfield to

ensure that other towns contributing flow to the plant properly

reported and managed their collection systems. The city also

questioned new testing and reporting requirements.

On August 22, 2008, the EPA issued a final permit to

Pittsfield and its co-permittees, along with a 37-page document

addressing the comments the agency had received. The EPA explained

that Section 301(b)(1)(C) of the CWA and federal regulations

require it to limit any pollutant that it has determined "[is] or

may be discharged at a level which will cause, have the reasonable

3
The EPA named as co-permittees four other towns, Dalton,
Lenox, Hinsdale and Lanesborough, that each contribute flow to the
plant through their own wastewater collection systems.

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potential to cause, or contribute to any excursion above any State

water quality standard, including State narrative criteria for

water quality." 40 C.F.R. § 122.44(d)(1)(v). Based on the

Housatonic River's designation as a Class B water, a classification

signifying suitability for habitation by fish and other wildlife

and for swimming and boating, the EPA concluded that the new strict

limits on the discharge of pollutants were correct, and it provided

Pittsfield with a detailed explanation of its data sources and

calculations.4

The agency did make some changes to the draft permit

based on the city's comments, however. Noting Pittsfield's history

of compliance with discharge limits, the EPA granted the city's

request for a reduction in routine testing requirements. It also

added new language clarifying that Pittsfield would not be

responsible for the implementation of any of the permit's terms and

conditions to the extent that they applied to co-permittees.

On September 29, 2008, the city sought review of the

final permit by the EAB, pursuant to 40 C.F.R. § 124.19(a). The

city's petition consisted of a one-page letter and a copy of the

comments it had submitted during the public comment period on the

draft permit. In its letter, Pittsfield asserted that the EPA had

4
The EPA later determined that the final permit's copper
discharge limitations were erroneously calculated and withdrew them
pursuant to 40 C.F.R. § 124.19(d). It announced its intent to
issue less stringent copper limitations after a second public
comment period.

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issued the draft permit as final "without any significant

modification to address the City's previously stated concerns," and

that the new permit's limits and requirements were "unachievable by

the City."

The EAB denied Pittsfield's petition for review. The EAB

interpreted the regulation governing Board review, 40 C.F.R.

§ 124.19(a), to require that a petition for review demonstrate

either that the EPA's decision involved a clearly erroneous finding

of fact or conclusion of law, or that the petitioner's appeal

raised an important policy consideration that the Board, in its

discretion, should review. The Board concluded that Pittsfield had

not met this burden and therefore had procedurally defaulted on its

claim. The Board noted that the city had not specified which

permit conditions it was challenging before the Board,5 nor had it

explained why these limits were "unachievable," let alone "clearly

erroneous." Pittsfield had also failed to identify any important

policy consideration, the Board observed, that would "spur the

Board to assume jurisdiction . . . and review a 115-page record."

The EPA's permit decision became final when Pittsfield

received notice that the Board had denied review. 40 C.F.R.

§ 124.19(f)(1)(I). The city then filed this appeal.

5
Indeed, the Board remarked, it had no way of discerning from
the city's "wholesale, undifferentiated permit appeal" whether the
city's objection extended to the conditions the EPA had already
addressed and modified after the public comment period.

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 III. Discussion

The CWA gives us jurisdiction to review the EPA's final

federal permit decision, see 33 U.S.C. § 1369(b)(1)(F), and the

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

our standard of review. Under the APA, we may only overturn the

Board's procedural default ruling, as an agency action, if it was

"arbitrary, capricious, an abuse of discretion or otherwise not in

accordance with law." 5 U.S.C. § 706(2)(A); see also Adams v. EPA,

38 F.3d 43, 49 (1st Cir. 1994)(applying standard of review to

review of the EPA's issuance of a NPDES permit). Where, as here,

the petitioner's challenge to the agency's action questions the

agency's construction of its own regulations, our review is

"particularly deferential." Davis v. Latschar, 202 F.3d 359,

364–65 (D.C. Cir. 2000); see also Pan Am. Grain Mfg. Co. v. EPA, 95

F.3d 101, 103 (1st Cir. 1996)(observing that our degree of

deference in reviewing a final EPA action "is magnified when the

agency interprets its own regulations"). Indeed, we must give

"controlling weight" to the agency's interpretation "unless it is

plainly erroneous or inconsistent with the regulation." Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).

A. The EAB's interpretation of 40 C.F.R. § 124.19(a)

Pittsfield's principal argument is that the Board's

interpretation of 40 C.F.R. § 124.19(a) was plainly erroneous and

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thus its denial of Pittsfield's petition should be set aside as an

abuse of discretion. In relevant part, the regulation states:

The petition shall include a statement of the
reasons supporting that review, including a
demonstration that any issues being raised
were raised during the public comment period
(including any public hearing) to the extent
required by these regulations and when
appropriate, a showing that the condition in
question is based on:

(1) A finding of fact or conclusion of
law which is clearly erroneous, or

(2) An exercise of discretion or an
important policy consideration which
the Environmental Appeals Board should,
in its discretion, review.

(emphasis added).

As in this case, the EAB has consistently interpreted the

regulation as requiring that the petitioner set forth an argument

in its petition as to why the permit condition it is challenging is

either based on a clearly erroneous finding of fact or conclusion

of law or raises an important policy consideration. See, e.g., In

re Chukchansi Gold Resort and Casino Waste Water Treatment Plant,

NPDES Appeal Nos. 08-02 to -05, slip op. at 9 (EAB Jan. 14, 2009),

14 E.A.D. ___; In re City of Irving, Mun. Separate Storm Water

Sewer Sys., 10 E.A.D. 111, 122 (EAB 2001). Additionally, the Board

has repeatedly stated that the petitioner must explain why the

challenged conditions merit review. See, e.g., In re Avon Custom

Mixing Servs., Inc., 10 E.A.D. 700, 708 (EAB 2002)("We have held in

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the past that to warrant review, allegations must be specific and

substantiated."); In re New England Plating Co., 9 E.A.D. 726, 737

(EAB 2001)("The Petitioner must not only identify disputed issues

but demonstrate the specific reasons why review is

appropriate.")(emphasis in original); In re Terra Energy Ltd., 4

E.A.D. 159, 161 (EAB 1992).

Based on these principles, the Board has refused to grant

review to petitioners who have merely reiterated or attached

comments they had previously submitted regarding the draft permit,

without engaging the EPA's responses to those comments. See, e.g.,

In re Peabody W. Coal Co., 12 E.A.D. 22, 33 (EAB 2005); In re Teck

Cominco Alaska Inc., 11 E.A.D. 457, 472–73 (EAB 2004); In re City

of Irving, 10 E.A.D. 111, 129 (EAB 2001). The Sixth Circuit has

upheld this standard. See Mich. Dep't Envtl. Quality v. EPA, 318

F.3d 705, 708 (6th Cir. 2003) (noting that the petitioner "simply

repackaged its comments and the EPA's response as unmediated

appendices to its petition to the Board" and holding that such

"does not satisfy the burden of showing entitlement to review").

In arguing that the Board's interpretation was in error,

Pittsfield relies exclusively on 40 C.F.R. § 124.19(a)'s

instruction that petitioners show that the challenged conditions

are based on clearly erroneous findings of facts or conclusions of

law, or raise important policy considerations "when appropriate."

The city contends that under a plain reading of the regulation, the

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use of the phrase "when appropriate" signifies that the inclusion

of this information is permissive, rather than mandatory.

Section 124.19(a) is admittedly not the most pellucid of

regulations, and there are other meanings that the EPA could have

ascribed to the "when appropriate" language. The agency has chosen

to read the language as requiring that the petitioner show that the

conditions it is challenging were based on either an erroneous

finding of fact or law or an abuse of discretion, whichever is

"appropriate." While this is not the only possible reading of the

phrase, it is a reasonable one, and we cannot say that it is

"plainly erroneous."6 To the extent that we would have reached a

different interpretation, we may not "substitute [our] judgment for

that of the agency." Adams v. EPA, 38 F.3d at 49. Moreover, this

interpretation is consistent with the regulation's preamble, which

instructs that the Board's power of review "should only be

sparingly exercised," and that "most permit conditions should be

finally interpreted at the Regional level. . . ." 45 Fed. Reg.

33,412 (May 19, 1980).

6
There are other readings of "when appropriate" on which the
EPA plausibly could have relied to support the grounds for its
denial of review in this case. For example, the agency conceivably
could have used the phrase to emphasize that petitioners should
only endeavor to make such a showing if they have a colorable
claim. It could also have intended to refer to cases in which the
petitioner cannot make either of the required showings to gain
Board review, but nevertheless files a petition in order to
preserve its ability to appeal the agency's decision in federal
court on some other basis. As the EPA does not raise these
possible interpretations, we need not explore them further here.

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 Pittsfield's interpretation, on the other hand -- that

the phrase "when appropriate" renders the aforementioned showings

entirely permissive -- is untenable. The requirement that

petitioners make one of the two enumerated showings "when

appropriate" cannot sensibly mean that petitioners never have to

make such a showing at all. Adopting this position would also, by

obligating the Board to grant review in a wide swath of cases,

appear to undermine the EPA's intent in adopting the regulation.

There is another problem with Pittsfield's

interpretation. The city seems to suggest that a petitioner can

satisfy 40 C.F.R. § 124.19(a) merely by stating that the EPA had

not made significant modifications to the draft permit and

attaching its previous comments. Without even the most minimal

guidance as to the specific issues the petitioner was disputing,

the burden would fall to the EAB to sift through an often lengthy

record in each case to determine whether review was merited. We

have long warned litigators that it is not the obligation of

federal courts to "ferret out and articulate the record evidence

considered material to each legal theory advanced on appeal."

Conto v. Concord Hosp., Inc., 265 F.3d 79, 81 (1st Cir. 2001). Nor

have we been presented with a reason why a similar responsibility

should fall to the EAB.7

7
It is possible that Pittsfield's petition would also fail
because it did not meet 40 C.F.R. § 124.19(a)'s requirement that
petitioners "include a statement of the reasons supporting . . .

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 Pittsfield asserts that granting review of its petition

would not require the EAB to scour the record because the EPA was

already aware of the city's concerns. It claims that evidence of

the EPA's knowledge can be found in a notice that the EAB sent to

Pittsfield in December 2008, acknowledging that it had received

Pittsfield's petition for review and listing the various permit

limitations and conditions that Pittsfield had contested. But that

notice simply regurgitated Pittsfield's attached comments to the

draft permit, including conditions the EPA revised in the final

permit, and does not establish that the EPA was aware of

Pittsfield's specific challenges on review.8

The city made no effort in its petition to the Board to

engage the EPA's initial response to its draft comments. As the

EAB noted, Pittsfield did not explain why the permit limits would

be "unachievable." In insinuating that the permit's limits would

create an "enormous financial burden to the users of the wastewater

system," the city did not mention whether it had considered the

EPA's response that the agency was obligated to base permit limits

on achieving water quality standards and could not consider cost or

rate impacts. Nor did it address the EPA's suggestion that

review." Neither party addresses this language of the regulation,
however, so we do not consider the argument here.
8
Moreover, even if there were clear evidence of the EPA's
knowledge, the regulation does not indicate that this knowledge
would exempt the city from meeting its procedural requirements.

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Pittsfield request that the state remove the designated use

associated with the more stringent permit levels if attaining the

use were not feasible, pursuant to 40 C.F.R. § 131.10(g).

Additionally, even assuming that the EAB could identify

Pittsfield's particular challenges to the final permit's discharge

limits, the city did not explain why it disagreed with either the

EPA's calculations of those limits or the data on which the EPA

relied in reaching them. It was Pittsfield's burden to present

this argument in its petition for review, particularly in light of

the great deference the EAB affords to the review of technically or

scientifically-based issues. See In re Carlota Copper Co., 11

E.A.D. 692, 708 (EAB 2004) ("[A] petitioner seeking review of

issues that are technical in nature bears a heavy burden because

the Board generally defers to the Region on questions of technical

judgment.").

For the aforementioned reasons, we cannot conclude that

the EAB's determination that Pittsfield had procedurally defaulted

on its claim under 40 C.F.R. § 124.19(a) was unreasonable or

plainly erroneous.9

9
We need not reach the city's claim that the EAB improperly
refused to follow the procedural mandates imposed by 40 C.F.R.
§ 124.19(a), as we conclude that the EAB's interpretation of the
regulation was reasonable.

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B. The Applicability of the Substantial Evidence Test

Pittsfield lodges a second argument that the denial of

its petition for review was improper. It claims that the EAB

improperly ignored "information developed in the normal course of

the permit development process" in reaching its conclusion. The

city invites us to review the entire factual record of the case,

including information gathered during the draft comment period,

under the substantial evidence standard. Pittsfield cites our

decision in Penobscot Air Services, Ltd. v. FAA for the proposition

that our standard of review should be to determine "whether on this

record it would have been possible for a reasonable jury to reach

the [agency's] conclusion." 164 F.3d 713, 718 (1st Cir. 1999).

We decline the invitation, as the city's interpretation

would import a standard of review that is not relevant here. As we

have noted above, the proper standard of review in determining

whether the EAB properly denied Pittsfield's appeal petition based

on its conclusion that the city had procedurally defaulted on its

claim is whether its ruling was "arbitrary, capricious, an abuse of

discretion or otherwise not in accordance with law" under

§ 706(2)(A) of the APA. Mich. Dep't of Envtl. Quality, 318 F.3d at

707.

Pittsfield's reliance on Penobscot Air Services, Ltd. to

suggest that our standard of review should be otherwise is

misplaced. Penobscot Air Services, Ltd. did not involve possible

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procedural default, but rather a review on the merits of the

Federal Aviation Administration's disposition of the petitioner's

appeal. In setting forth our standard of review in that case, we

noted that the statute in question, the Federal Aviation Act,

contained a specific provision directing us to review the FAA's

findings of fact to determine if they were "supported by

substantial evidence." 164 F.3d at 718 (citing 49 U.S.C.

§ 46110(c)). Because the Federal Aviation Act was silent as to the

standard for reviewing nonfactual matters, we determined that the

applicable standard of review for such matters was dictated by the

Administrative Procedure Act. In particular, we stated that the

APA's "arbitrary and capricious standard" applied to the review of

agency decisions. Id. at 719.

The CWA, unlike the Federal Aviation Act, does not

provide for its own substantial evidence test. Moreover, even if

the substantial evidence standard generally applies to EAB fact-

finding, there is no need to employ it here. The EAB did not find

any facts in this case -- nor did it have to -- because its

decision to deny review was supported by an adequate and

independent procedural ground.

IV. Conclusion

For the foregoing reasons, we deny the petition for review.

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