City of Taunton v. U.S. Environmental Protection , 895 F.3d 120 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2280
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
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
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.
July 9, 2018
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
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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
1 The noun "effluent" is defined as "the outflow of a sewer,
septic tank, etc." Webster's New World Dictionary & Thesaurus 195
(1996); see also 33 U.S.C. § 1362(11) ("The term 'effluent
limitation' means any restriction established by a State or the
Administrator on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents which are
discharged from point sources into navigable waters, the waters of
the contiguous zone, or the ocean . . . .").
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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
2 "The term 'point source' means any discernible, confined and
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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
discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation, or vessel or
other floating craft, from which pollutants are or may be
discharged." 33 U.S.C. § 1362(14). However, "[t]his term does
not include agricultural stormwater discharges and return flows
from irrigated agriculture." Id.
3 While the 2001-issued NPDES permit for the Facility expired in
2006, it was administratively continued pursuant to 40 C.F.R.
§ 122.6.
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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
4 The permit did not require the City to give immediate effect to
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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
its nitrogen limit, but rather set out a 10-year staged compliance
schedule for the City to follow.
5 We denied the State of Rhode Island's motion to intervene on
behalf of the EPA, but highlighted that it was free to "present
its position in an amicus curiae brief," which it then did.
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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
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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
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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
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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)).
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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
6 The City also insists that this is a situation when
supplementing the record is appropriate because "the good faith of
the agency is at issue." The City appears to argue that the EPA
shirked its "duty" to "bring forth" the information contained in
the draft NBEP report -- which the City says undercuts the EPA's
conclusions regarding the permit -- and that we can infer bad faith
from this. But, the draft NBEP report is dated April 2017, which
is ten months after the final permit went into effect, following
the City's unsuccessful administrative appeal. Setting aside the
question of whether the draft NBEP report (or its subsequently
published final iteration) actually supports the City's position
-- which the EPA sharply contests -- we fail to see how the EPA's
failure to engage with a document that didn't exist at the time of
its permit decision can amount to indicia of bad faith.
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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
7 To the extent that the City seeks to cite these documents not
to rebut Rhode Island's arguments but rather to attack the merits
of the EPA's permit decision (a motive at which its reply brief
hints), we emphasize that the proper moment for the City to adduce
evidence to that effect was the public comment period. See Cousins
v. Sec'y of U.S. Dep't of Transp., 880 F.2d 603, 610 (1st Cir.
1989) (reasoning that parties are not prejudiced by the principle
that our review is limited to the agency record because they are
free to contribute to that record amid proceedings before the
agency). Further, to the extent that the City argues that the
draft NBEP report -- which, again, post-dates the permit decision
-- should come into the record as evidence that the EPA's permit
decision was arbitrary and capricious, we also disagree. We
repeat that our review is of the agency's decision based on the
record before it. Setting aside whatever merit the City's
arguments concerning the substance of that report may have, we
recall one of the reasons motivating our limited scope of review:
"[T]he hope or anticipation that better science will materialize
is always present, to some degree, in the context of science-based
agency decisionmaking. Congress was aware of this when it
nonetheless set a firm deadline for issuing new permits." Upper
Blackstone, 690 F.3d at 23.
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section 509(c) of the CWA, see 33 U.S.C. § 1369(c), which, the
City claims, gives us the authority to compel the EPA "to review
material evidence that arises after the challenged EPA action."
But we do not agree. Section 509(c)'s own terms limit
its application to agency "determination[s] . . . required to be
made on the record after notice and opportunity for hearing." Id.
(emphasis added). That is crucial because the phrase "on the
record" serves to invoke formal agency adjudication under the APA.
See 5 U.S.C. § 554(a); United States v. Allegheny-Ludlum Steel
Corp., 406 U.S. 742, 757 (1972) (explaining, in the context of
agency rulemaking, that the APA's provisions governing formal
agency proceedings, see 5 U.S.C. §§ 556-57, apply when "the agency
statute, in addition to providing a hearing, prescribes explicitly
that it be 'on the record'" (quotation omitted)). Thus, section
509(c) applies only to formal agency adjudications. Congress has
specified only that the EPA is to issue NDPES permits "after
opportunity for public hearing," without specifying whether that
hearing must be "on the record." 33 U.S.C. §§ 1326(a), 1342(a).
But, we have afforded Chevron deference to EPA regulations setting
forth -- in light of Congress's silence on this issue -- that these
public hearings need not be "on the record," and that the NDPES
permit process is therefore an informal agency adjudication under
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the APA. Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d
12, 14-15, 18-19 (1st Cir. 2006).
This forecloses the City's argument. Because the agency
record at issue here pertains to an informal adjudication, section
509(c) of the CWA is inapposite, and does not provide a basis for
us to order the EPA to reopen the administrative record to consider
the City's purportedly new material evidence. As a result, we
deny the City's motion for us do to so.
B.
We turn now to the various procedural challenges that
the City brings.
1.
The City first tells us that the EPA "failed to provide
public access to fundamental evaluations, analyses, and data used
to derive the permit." While the City's precise objections are
perhaps not the easiest to discern, we read its brief as
essentially asserting two things: (1) that the factsheet,
containing only "generalized supporting information for the
stringent nutrient limitations," failed to provide adequate
support for the draft permit's nitrogen limitation, and (2) that
"when challenged regarding the adequacy of that documentation,
[the EPA improperly] add[ed] thousands of pages of site-specific
studies, data analyses and specific regulatory findings [to the
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final administrative record], after the comment period closed."
The appropriate remedy, according to the City, is for us to order
the EPA to reopen the public comment period so that the City may
weigh in on the "new justifications and analyses supporting [the]
permit" for which the EPA allegedly deprived the City of a
"rebuttal opportunity."8
We start with the City's claim that the fact sheet was
facially deficient. Under 40 C.F.R. § 124.8(a), the fact sheet
that accompanies a draft NPDES permit need only "briefly set forth
the principal facts and the significant factual, legal,
methodological and policy questions considered in preparing the
draft permit." We find that, here, the fact sheet satisfied that
requirement.
First, the fact sheet explained how the EPA had arrived
at its conclusion that the "Taunton River Estuary and Mount Hope
Bay have reached their assimilative capacity for nitrogen," and as
8 The City's briefing broadly describes its various procedural
challenges in terms of due process violations or violations of its
procedural rights. However, we do not understand the City to be
raising a Fifth Amendment Due Process Clause claim. Rather, the
City's contentions fall under the ambit of the APA. We thus apply
arbitrary and capricious review to the City's procedural claims.
See United States v. Estate of Boothby, 16 F.3d 19, 21 (1st Cir.
1994) ("In scrutinizing administrative action, a reviewing court
is free to correct errors of law, but, otherwise, the court is
limited to a search for arbitrary or capricious behavior.") (citing
5 U.S.C. § 706(2)(A)).
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a result, were already "failing to attain the water quality
standards" that Massachusetts and Rhode Island law impose. The
fact sheet then explained the EPA's conclusion that, because the
Facility's nitrogen discharges had the "reasonable potential" to
cause violations of the applicable water-quality standards, it was
necessary to include an effluent limit in the draft permit. Next,
the fact sheet detailed how the EPA first calculated the threshold
nitrogen concentration for the Taunton River Estuary -- that is,
the maximum amount of nitrogen that the Estuary may contain before
any water-quality violations result -- and then calculated an
"allowable total nitrogen load from the watershed" that would keep
the Estuary's nitrogen concentration at or below that threshold.
Finally, the fact sheet laid out how the EPA allocated that total
allowable nitrogen load among the Estuary's various point-sources
of nitrogen -- including the Facility -- to derive limits for each
of those nitrogen dischargers. At each step, the EPA identified
the datasets and studies it relied upon in making these
calculations, and provided a clear account of its reasoning and
underlying assumptions.
In light of all of this, we do not agree with the City
that the fact sheet provided only "generalized supporting
information for the stringent nutrient limitations." Quite the
opposite, the fact sheet described in substantial detail the
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methodology that the EPA employed in deriving the nitrogen
limitation that it ultimately imposed in the draft permit. The
City therefore fails to convince us that the fact sheet ran afoul
of the regulations governing it.9 Having resolved that, we now
turn to the City's claim that the EPA improperly added documents
to the final administrative record.
According to the City, a "quick comparison of the
original 20-page generalized fact sheet discussion versus the 80
pages of site-specific analysis contained in the [response to
comments] and final administrative record confirms extensive
revisions occurred."10 The City also protests that the fact sheet
9 In its reply brief, the City contends that the fact sheet was
inadequate for many of the same reasons for which it claims that
the final permit's nitrogen limit was arbitrary and capricious
(e.g., it failed to consider "the post-2006 system wide pollutant
reductions affecting algal growth and [dissolved oxygen]"). In
addition to having been waived, see Waste Mgmt. Holdings, Inc. v.
Mowbray, 208 F.3d 288, 299 (1st Cir. 2000) ("We have held, with a
regularity bordering on the monotonous, that issues advanced for
the first time in an appellant's reply brief are deemed waived."),
these arguments, as we explain in addressing the City's substantive
challenges, also lack merit.
10 To the extent that the City argues that the final permit
departed impermissibly in substance from the draft permit, we
recall that an agency "can make even substantial changes from the
proposed version [of a rule], as long as the final changes are 'in
character with the original scheme' and 'a logical outgrowth' of
the notice and comment." Nat. Res. Def. Council, Inc. v. EPA, 824
F.2d 1258, 1283 (1st Cir. 1987) (quoting S. Terminal Corp. v. EPA,
504 F.2d 646, 658 (1st Cir. 1974)); see also In Re Town of Concord
Dep't of Pub. Works, 16 E.A.D. 514, 532-33 (EAB 2014) (upholding
the decision not to reopen public comment after rejecting the Town
of Concord's argument that the pH limit imposed in a final NPDES
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and its supporting documentation suffered from "glaring record
omissions," and that it was only at the Final Permit stage that
the EPA "disclosed the new information, evaluations, data, and
conclusions that purportedly justified its action."
The EPA's rejoinder is that, as the EAB explained, "it
is both permissible and expected for [the EPA] to place new
material in the Administrative Record when responding to
significant comments." The EPA also correctly points out that its
regulations provide that if "new points are raised or new material
supplied during the public comment period, EPA may document its
response to those matters by adding new materials to the
administrative record." 40 C.F.R. § 124.17(b); see also id. §
124.18(b)(4) (the administrative record for a final permit must
include "the response to comments required by § 124.17 and any new
material placed in the record under that section"). And it does
not follow that, because the EPA added new materials to the
administrative record in response to comments it received, it also
needed to reopen the comment period. The relevant regulations
provide that "[i]f any data[,] information[,] or arguments
submitted during the public comment period . . . appear to raise
permit was not a "logical outgrowth" of the draft permit). And
the City offers nothing in support of any contention that the final
permit was not a "logical outgrowth" of the draft permit.
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substantial new questions concerning a permit, the [EPA] may . . .
[r]eopen or extend the comment period." 40 C.F.R. § 124.14(b)
(emphasis added). In the end, the City fails to convince us that
the EPA wrongly declined to exercise its discretion to reopen the
comment period after adding new documents to the administrative
record.
Contrary to what the City asserts, the 60-page
difference between the fact sheet and the response to comments
does little to suggest that the EPA acted arbitrarily or
capriciously. Because it needed only to "briefly set forth" the
draft permit's factual and theoretical underpinnings, see 40
C.F.R. § 124.8(a), the fact sheet's comparative brevity cannot
alone be indicative of any illegitimate additions to the response
to comments. We, therefore, do not agree with the City that the
EPA acted arbitrarily or capriciously in adding documents to the
record after the public comment period. Nor does the City give
us any reason to conclude that the EPA needed to reopen the public
comment period after adding those documents.
2.
The City next challenges the EPA's decision not to
address the City's untimely "supplemental comments" in the
response to comments. 40 C.F.R. § 124.17(a)(2) requires only that
the EPA "[b]riefly describe and respond to all significant comments
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on the draft permit . . . raised during the public comment period,
or during any hearing." (emphases added); see also id. § 124.13
("All persons . . . who believe any condition of 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."). As we have
explained previously, we apply "strict rules of procedural default
in the administrative context" for a number of reasons:
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.
Adams, 38 F.3d at 50 (quoting Mass. Dep't Pub. Welfare v. Sec'y of
Agric., 984 F.2d 514, 523 (1st Cir. 1993)). The City does not
proffer any good reason for us to deviate from these principles
here. And while the EPA was free to reject the City's untimely
comments out of hand, it nonetheless undertook to review them.
Thus, the EPA concluded in the response to comments that those
untimely comments pertained in large part "to the subject matter
of the City's timely submitted comments, which have been duly
considered." The EPA then added that "[g]iven the foregoing, and
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the fact that the existing permit is long expired, the evidence of
ongoing water quality impairments, and the need . . . for timely
imposition of more stringent nutrient controls, EPA rejects the
'supplemental comments' as untimely." It therefore declined to
respond to those comments. We do not find this to have been
arbitrary or capricious.
We similarly uphold the EAB's decision to strike
documents that the City attempted to submit for the first time at
the administrative appeal stage. The City protests that the
EAB's decision "effectively created a double-standard whereby [the
EPA] may include extensive new post-comment period analyses and
data to justify its action, yet the City is precluded from
commenting on any of this new information." But this assertion
alone -- especially given our rejection of the notion that the EPA
illicitly added information to the final record or that the final
permit departed impermissibly from the fact sheet and draft permit
-- fails to convince us that the EAB acted arbitrarily or
capriciously in policing its waiver rule. See 40 C.F.R. §§ 124.13,
124.19 (requiring that permit appellants raising new arguments
"explain why such issues were not required to be raised during the
public comment period"). We therefore conclude that the EAB
properly refused to consider these new documents.
-22-
3.
Finally, the City tells us that "following the issuance
of its deficient fact sheet, EPA repeatedly stymied Taunton's
access to the Agency's back-up documentation allegedly supporting
the contested [total nitrogen] limitation." In brief, the City
makes much ado over the EPA's purported unwillingness to allow the
City to see documents supporting the draft permit's nitrogen limit.
The City's briefing does not make entirely clear what exactly it
wanted the EPA to do. But in any event, we note that the City
does not argue that the EPA ran afoul of any applicable legal
requirement. And as the EPA points out, it needed only to provide
physical access to the record during the public comment period,
see 40 C.F.R. § 124.10(d)(1)(vi), which it did. As it turns out,
the EPA invited representatives of the City to visit its Region
One office in Boston to review the administrative record on
multiple occasions. The City, meanwhile, expressly rejected that
invitation. In sum, because the City fails to show that it was
procedurally entitled to anything more than what the EPA afforded
it, we do not find the EPA's actions in this respect to have been
arbitrary or capricious. See Vt. Yankee Nuclear Power Corp. v.
Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978) ("Agencies
are free to grant additional procedural rights in the exercise of
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their discretion, but reviewing courts are generally not free to
impose them if the agencies have not chosen to grant them.").11
C.
We now take up the City's substantive challenges to the
Permit and its nitrogen limit.
1.
The first arrow that the City pulls from its quiver is
that the EPA erred in determining that the Taunton Estuary was
nutrient impaired.
As we explained above, NPDES permits "must control all
pollutants or pollutant parameters" 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, including State narrative
criteria for water quality." 40 C.F.R. § 122.44(d)(1)(i). The
EPA has interpreted "reasonable potential" to mean "some degree of
certainty greater than a mere possibility." In re Upper
Blackstone Water Pollution Abatement Dist., 14 E.A.D. 577, 599
n.29 (EAB 2010). "Narrative" water quality criteria are
11 The City also submits that the "EPA's recalcitrance was so
pronounced that it prompted a federal court to award attorneys'
fees against EPA under FOIA." This is irrelevant, though.
Whatever obligations the EPA may have had in connection with any
particular FOIA request have no bearing on the EPA's compliance
with the framework governing the NPDES permit process.
-24-
qualitative, rather than numerical, in nature. See 40 C.F.R.
§§ 131.3(b), 131.11 (b).
Massachusetts classifies the Taunton Estuary and the
eastern portion of Mount Hope Bay as "Class SB" waters. Per state
regulations, Class SB waters "are designated as a habitat for fish,
other aquatic life and wildlife . . . and for primary and secondary
contact recreation." 314 Mass. Code Regs. § 4.05(4)(b). They
"shall have consistently good aesthetic value." Id. Class SB
waters must also meet the numeric water quality criterion of a
minimum of 5.0 mg/l of dissolved oxygen. Id. § 4.05(4)(b)(1). So
too must they satisfy the following narrative water quality
criterion:
Unless naturally occurring, all surface waters shall
be free from nutrients in concentrations that would
cause or contribute to impairment of existing or
designated uses . . . . Any existing point source
discharge containing nutrients in concentrations that
would cause or contribute to cultural eutrophication
. . . shall be provided with the most appropriate
treatment . . . to remove such nutrients to ensure
protection of existing and designated uses.
Id. § 4.05(5)(c).
When issuing NDPES permits for states that employ
narrative criteria, the EPA must translate those criteria into a
"calculated numeric water quality criterion" that the EPA
"demonstrates will attain and maintain applicable narrative water
quality criteria and will fully protect the designated use." 40
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C.F.R. § 122.44(d)(1)(vi)(A). The EPA may arrive at that
numerical criterion by using "a proposed State criterion, or an
explicit State policy or regulation interpreting [the State's]
narrative water quality criterion, supplemented with other
relevant information . . . ." Id. Massachusetts has not
prescribed specific methodologies for deriving numeric nitrogen
limitations that correspond to its narrative criteria. It
therefore fell to the EPA to do so here.
The EPA looked to an interim report prepared for the
Massachusetts Department of Environmental Protection (MassDEP)
known as the "Critical Indicators Report." See Massachusetts
Estuaries Project, Site-Specific Nitrogen Thresholds for
Southeastern Massachusetts Embayments: Critical Indicators, July
21, 2003, https://www.mass.gov/files/documents/2016/08/mp/
nitroest.pdf (last visited June 14, 2018). As the EPA explained
in the response to comments, "[w]hile MassDEP has not adopted the
Critical Indicators Report as a specific policy, it has afforded
the document technical and scientific weight, [and] has explicitly
relied on the report" in other regulatory contexts.
The purpose of that report is to provide a "translator"
between Massachusetts's narrative water quality standard and
corresponding numeric nitrogen thresholds that would ensure
compliance with those standards. Id. at 2. To that end, the
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report listed various criteria, or "indicators," to guide
assessments of the present health of a given body of water,
including the amount of oxygen, nitrogen, and chlorophyll present
in that body.12 Id. at 11. In this sense, those "indicators"
serve as factors to consider when assessing how healthy a body of
water is. The interim report also provided what it describes as
"straw man" threshold levels -- to be "further refined with the
collection of additional data and modeling." Id. at 3. For
example, per those thresholds, Class SB waters are not impaired
when, among other things, "oxygen levels are generally not less
than 5.0 mg/l," chlorophyll-a levels are between 3-5 µg/l, and
nitrogen levels are between 0.39-0.50 mg/l. Id. at 22.
"Moderately impaired" SB waters have oxygen levels that "generally
do not fall below" 4.0 mg/l, chlorophyll levels that may reach 10
µg/l, and nitrogen concentrations above roughly 0.5 mg/l.13 Id.
12 As the Critical Indicators Report explains, the amount of
chlorophyll in a given body of water provides a measure of the
concentration of aquatic plant life in that water, and therefore
indicates the extent to which eutrophication has occurred. Id.
at 14.
13 The case studies giving rise to these figures indicated,
according to the report, that regions with nitrogen concentrations
above 0.5 mg/l were "clearly impaired," while certain locations
began showing signs of impairment once nitrogen exceeded 0.4 mg/l.
Id. at 23.
-27-
at 23. Class SB waters are "significantly impaired," according
to the report, at around 0.6-0.7 mg/l of nitrogen. Id.
The EPA then looked to data from a three-year water
quality monitoring study that the School for Marine Sciences and
Technology at University of Massachusetts Dartmouth (SMAST) had
carried out. The study involved taking monthly water samples from
22 sites across the Taunton Estuary and Mount Hope Bay from 2004
to 2006. The study revealed that all of these sites were suffering
from excessive algae growth; each site had an average chlorophyll-
a concentration of over 10 µg/l during the study's three-year
period. All 22 monitoring stations also had an average dissolved
oxygen concentration below 5.0 mg/l during that period. And in
the case of 16 monitoring stations, the average nitrogen
concentration exceeded .5 mg/l -- where the Critical Indicators
Report drew the line for "clearly impaired" waters. Those
monitoring stations located in the Taunton River tended to have
the highest nitrogen concentrations. The monitoring station
closest to the Facility's discharge point showed a particularly
high nitrogen concentration -- ranging from 0.66 to 0.99 mg/l
during the course of the study.
The EPA also considered data from another monitoring
station in Mount Hope Bay, operated by the Narragansett Bay Water
Quality Network. That data showed that the dissolved oxygen
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concentration at that site fell below 4.8 mg/l on multiple
occasions in 2005 and 2006. On two such occasions, the dissolved
oxygen concentration remained below 2.9 mg/l for two days,
resulting in "hypoxic conditions," or "levels of dissolved oxygen
below what is needed by aquatic organisms to breathe," Upper
Blackstone, 690 F.3d at 12. The data also showed "multiple events"
of chlorophyll-a concentrations exceeding 20 µg/l. Moreover, the
data from the monitoring station indicated that the site continued
to suffer from elevated chlorophyll-a concentrations and
persistent dissolved oxygen concentrations below 5 mg/l in 2010.
The EPA then applied the SMAST and Mount Hope Bay data
to the Critical Indicators Report. This led it to conclude that
"cultural eutrophication due to nitrogen overenrichment in the
Taunton River Estuary and Mount Hope Bay has reached the level of
a violation of both Massachusetts and Rhode Island water quality
standards for nutrients and aesthetics, and has also resulted in
violations of the numeric [dissolved oxygen] standards."
According to the City, this conclusion was the product of various
errors.
The City first assails the EPA's use of the Critical
Indicators Report, stressing that the EPA treated the report's
"straw man" threshold levels as final and authoritative when the
report treated them as preliminary and requiring further analysis.
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The EPA responds that, while the report may hold those threshold
levels out as preliminary and subject to future fine-tuning, the
report's "indicators" of watershed health are not. Indeed, as the
report explains, those indicators "form the basis of an assessment
of a system's present health." Massachusetts Estuaries Project,
supra at 22. Thus, the EPA explains that it was entitled to use
those indicators and apply them "to site-specific data and the
extensive scientific literature on cultural eutrophication, to
determine that the Taunton Estuary was suffering from nutrient
overenrichment."
The EAB, for its part, upheld the EPA's use of the report
on this basis, explaining that "the use of criteria from the . . .
Critical Indicators Report to evaluate water quality is fully
consistent with the NPDES permitting regulations." It added that
the EPA's ultimate determination, after considering those
indicators, that the Taunton Estuary was nutrient impaired found
further support in "the SMAST report itself, which concluded that
the Taunton Estuary experienced very high levels of nitrogen and
poor water quality due to high algal levels and oxygen depletion."
We agree that the EPA did not use the Critical Indicators
Report improperly. The City's objections to the EPA's reliance
on the "straw man" thresholds in the Critical Indicators Report
are ultimately inapposite, as the EPA relied not on those
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thresholds, but rather on the Report's indicators in reaching its
conclusion about nutrient impairment. Of course, had the EPA been
able to rely on threshold levels not subject to future refinement,
then its analysis may have benefitted from greater scientific
certainty. But, it was not required to delay its decision until
such information became available, and its conclusions are not
invalid because they are the product of employing the indicators
set out in the Critical Indicators Report to analyze the SMAST
data. "As in many science-based policymaking contexts, under the
CWA the EPA is required to exercise its judgment even in the face
of some scientific uncertainty." Upper Blackstone, 690 F.3d at
23. Using those indicators to determine that the Taunton Estuary
was nutrient impaired for purposes of Massachusetts's narrative
criteria, see 314 Mass. Code Regs. § 4.05(4)(b), comported with
the regulations that govern translating narrative criteria in the
absence of an official state-sanctioned methodology, see 40 C.F.R.
§ 122.44(d)(1)(vi)(A), and was not arbitrary or capricious.14
14 We encounter further evidence that the EPA did more than simply
uncritically apply those thresholds to the SMAST data in the EPA's
calculation of an acceptable total nitrogen threshold for the
Taunton River Estuary. Though the Critical Indicators Report
provides the "straw man" nitrogen concentration threshold of 0.39-
0.50 mg/l for unimpaired waters, the EPA -- finding dissolved
oxygen violations and elevated chlorophyll-a concentrations taking
place at nitrogen concentrations above 0.45 mg/l -- found that
threshold insufficiently protective and therefore, as we explain
in greater detail ahead, ultimately determined that a nitrogen
threshold of 0.45 mg/l was necessary to prevent water quality
-31-
Next, the City protests that, in applying the SMAST data
to the Critical Indicators Report, the EPA "did not undertake any
analysis to demonstrate the relationship between nitrogen and
dissolved oxygen or plant growth" in the Taunton Estuary. As a
result, the City says, the EPA failed to rule out a number of other
explanations for the Taunton Estuary's low concentration of
dissolved oxygen and high concentration of chlorophyll. The City
then points to a number of charts drawing from the SMAST data that
it submitted during the public comment period, which, it explains,
show that no relationship exists between the concentrations of
nitrogen and oxygen or between the concentrations of nitrogen and
chlorophyll. The absence of any causal relationship, the City
presses, renders the EPA's determination that the Taunton Estuary
was nutrient impaired arbitrary and capricious.
But, as the EAB correctly determined, the EPA did not
need to show causation -- for example, through a statistical
regression analysis -- to support its conclusion that the Taunton
Estuary was nutrient impaired. Rather, the EPA needed only to
conclude that the further discharge of nitrogen had the "reasonable
potential to cause, or contribute to an excursion above any State
water standard." 40 C.F.R. § 122.44(d)(1)(i) (emphasis added);
standard violations.
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see also 314 Mass. Code Regs. § 4.05(4)(b)(1) (establishing the
numeric criterion that Class SB waters have a minimum of 5.0 mg/l
of dissolved oxygen), (5)(c) (establishing the narrative criterion
for Class SB waters that "[u]nless naturally occurring, all surface
waters shall be free from nutrients in concentrations that would
cause or contribute to impairment of existing or designated uses").
We further note that the words "contribute to" also indicate that
nitrogen need not be the sole cause of any potential violation of
a state standard, further undercutting the suggestion that the EPA
needed to prove causation. Moreover, in upholding the "reasonable
potential" determination here, the EAB observed that under the
NPDES regulations, the permitting authority has a "significant
amount of flexibility in determining whether a particular
discharge has a reasonable potential to cause an excursion above
a water quality criterion." See also National Pollutant Discharge
Elimination System, 54 Fed. Reg. 23,868, 23,873 (June 2, 1989).
The City's arguments thus miss their mark; it is
incorrect that the EPA needed to show a causal relationship between
high concentrations of nitrogen and low concentrations of
dissolved oxygen. The absence of an analysis of this sort from
the EPA's "reasonable potential" determination, therefore, cannot
have made that determination arbitrary or capricious.
-33-
And we also reject, as did the EAB, the City's related
contention that this "reasonable potential" determination was
erroneous because the SMAST data does not show any relationship
between nitrogen, chlorophyll, and dissolved oxygen. In
discussing the charts that the City continues to rely on in arguing
that no such relationship exists, the EAB first highlighted the
explanation in the response to comments that "the SMAST data were
not appropriate for the type of analysis (a stressor-response
analysis) performed by the [C]ity, and that the SMAST data were
generally insufficient to produce any statistically significant
correlations." The EAB also credited the EPA's additional
observation in the response to comments that the City's selection
of certain data to include in these charts "would be expected to
produce the results the City sought." And finally, while
reemphasizing that the EPA's "reasonable potential" determination
did not rely on a stressor-response analysis of the SMAST data,
the EAB underscored that the EPA's own analysis of that data
"supported the conclusion that higher algal levels result in lower
levels of dissolved oxygen."
Having considered, and found unpersuasive, the City's
various challenges, we hold that the EPA did not act arbitrarily
or capriciously in determining that the Taunton Estuary and Mount
Hope Bay were already nutrient impaired, such that further nitrogen
-34-
discharges would have at least a "reasonable potential" to give
rise to violations of state water quality standards.
2.
The City's next objection concerns the EPA's methodology
for determining a target nitrogen concentration that would ensure
unimpaired conditions.
The EPA, we recall, needed to include in the permit
whatever water-quality-based limitations it found necessary to
prevent violations of state water quality standards. See 33
U.S.C. §§ 1311(b)(1)(C), 1341(a)(2); 40 C.F.R. §§ 122.4(d),
122.44(d)(4). Thus, having determined that "cultural
eutrophication due to nitrogen overenrichment in the Taunton River
Estuary and Mount Hope Bay" was already resulting in violations of
the relevant Massachusetts and Rhode Island standards, the EPA
then needed to determine the amount of nitrogen that those waters
could permissibly contain without giving rise to any violations.
To calculate that total nitrogen threshold, the EPA --
employing what is known as a "reference-based" approach -- looked
to one of the monitoring stations in the SMAST study, MHB16, that
"consistently met dissolved oxygen standards." As the EPA
detailed in the response to comments, MHB16 was, among all of the
unimpaired sites in the SMAST study, the site with the highest
nitrogen concentration. The nitrogen concentration at MHB16, 0.45
-35-
mg/l, also fell within the range that the Critical Indicators
Report held out as consistent with unimpaired conditions (0.35-
0.5 mg/l). The EPA further explained in the fact sheet that this
nitrogen threshold was consistent with "total nitrogen
concentrations previously found to be protective of [acceptable
dissolved oxygen levels] in other southeastern Massachusetts
estuaries [which] have ranged between 0.35 and 0.55 mg/l."
Mindful that all of the sites in the SMAST study with a nitrogen
concentration above 0.45 mg/l suffered from nutrient impairment,
the EPA explained in the response to comments that "there is simply
no evidence that a higher target [total nitrogen] concentration
would be sufficiently protective in the Taunton River Estuary."
The EPA therefore selected 0.45 mg/l as the target nitrogen
concentration that would serve as the basis for the effluent
limitations the permit would impose on the Facility.
The City protests that the EPA's reliance on MHB16 was
"flawed," because MHB16 "could not be more dissimilar" from the
Taunton Estuary. In support of this, the City points to comments
it submitted in response to the draft permit and fact sheet
averring that, among other things, MHB16 is "located in a bay not
a tidal river, 23 feet deeper than [the Taunton Estuary], subject
to dramatically different hydrodynamics because it is located in
a high velocity tidal strait, and subject to different organic
-36-
loadings and sediment oxygen demands." According to the City, the
"irrationality of using MHB16 is further underscored by the fact
that the average chlorophyll-a concentrations at MHB16 (10.5 µg/L)
were (1) essentially identical to the upper [Taunton Estuary], and
(2) well above the suggested 'good health' 'thresholds' EPA claimed
were necessary to ensure standards compliance."
In the response to comments, however, the EPA explained
that the City had "clearly overstate[d] its case with the
insistence that there is 'no objective resemblance between' Mount
Hope Bay and the contiguous Taunton River Estuary." The EPA then
pointed out that, "[d]espite the hyperbole," those two bodies of
water "are in fact a series of segments of the same estuarine
system, characterized by different levels of mixing of the same
two source waters, continual exchange of waters among estuarine
segments, the same sources for sediment, the same climactic
conditions, [and] minor differences in depth range." The EPA also
adds that the City has yet to explain how or why any of these
purported differences are relevant to the target nitrogen
threshold that the EPA selected.
The City's objection to the EPA's reliance on data from
MHB16 cannot be squared with the principle that our review of
agency action must afford deference to the scientific judgments of
the agency that Congress has tasked with carrying out the context-
-37-
sensitive implementation of the CWA. See Overton Park, 401 U.S.
at 416. Ultimately, our recognition that "[w]here the agency
follows the proper procedures and acts with a reasonable basis,
both its choice of scientific data and interpretation and
application of that data to real world conditions are entitled to
deference," forecloses the City's challenge here. Upper
Blackstone, 690 F.3d at 26. This is especially so when the City
has not outlined with any specificity why the differences between
MHB16 and the Taunton Estuary would make the EPA's reliance on
that data indefensible.
3.
The City's final challenge is that the EPA erred in
failing to take "existing conditions" in the Taunton Estuary into
account in fashioning the permit's nitrogen limitation.
Having determined that a total nitrogen threshold of
0.45 mg/l was necessary to protect the Taunton Estuary from
nutrient impairment, the EPA then calculated the maximum nitrogen
load from the Taunton River watershed that the Estuary could
receive without exceeding that threshold. After using a model to
calculate the amount of nitrogen that the Estuary would receive
from ocean inflows, the EPA concluded that the watershed's various
sources of nitrogen could discharge 2,081 lbs. per day of that
nutrient before pushing the Estuary's nitrogen concentration past
-38-
the 0.45 mg/l limit. This amounted to approximately a 51%
reduction in total nitrogen loads from 2004-05 levels. The EPA
then subtracted from that 2,081 lb. limit the amount of Nitrogen,
1,142 lbs., it projected would flow from non-point sources.15 This
resulted in a total maximum daily limit of 939 lbs. for the EPA to
allocate among the Estuary's various point-source dischargers of
nitrogen.
The EPA first noted that allocating this maximum load
"equitably" among the watershed's six non-minor point-sources of
nitrogen would result in requiring each of those sources to limit
their discharges to a nitrogen concentration between 3.4 and 3.5
mg/l.16 But, the EPA then took into account that (1) "upgrades to
meet the most stringent permit limits are more cost-effective at
facilities with the highest flows and the highest proportion of
the load delivered to the estuary; (2) the Facility is the
15 To arrive at this number, the EPA started the average daily
nitrogen load from non-point sources during 2004-05. Then,
"consistent with approaches in approved [total maximum daily
limits] in Massachusetts and elsewhere," the EPA reduced that
number by 20% to account for "the prevalence of regulated
[municipal] stormwater discharges, trends in agricultural uses and
population, and potential reductions in atmospheric deposition
through air quality programs."
16 The EPA did not take into account five point-sources that
discharged less than one million gallons per day, explaining that
they were "de minimis contributors for the purposes of this
analysis."
-39-
watershed's second-largest discharger; and (3) the Facility
"discharges directly to the upper portion of the Taunton River
estuary, with no potential for uptake or attenuation of its
nitrogen discharges." The EPA therefore found it appropriate to
assign the Facility -- which has a "design flow" of 8.4 million
gallons per day -- a permit limit of 3.0 mg/l. The EPA assigned
the same limit on the Estuary's two other largest point-source
dischargers, belonging to the towns of Brockton and Somerset. The
three remaining smaller facilities received a limit of 5.5 mg/l.
The City presses that, in arriving at the final permit
limit for the Facility, the EPA relied only on the SMAST data,
which is from 2004-06, and as a result failed to take account of
the allegedly substantial improvements in terms of dissolved
oxygen and algal conditions that have since taken place in the
Taunton Estuary. Those improvements, the City says, may even have
obviated the need for any nitrogen limit in the permit.
Specifically, the City says that the EPA failed to acknowledge the
following recent developments: (1) the Taunton Estuary's
temperature has decreased as a result of the closure of the nearby
Brayton Point power plant; (2) the "inputs of [total nitrogen]
have declined" in Narragansett Bay, Mount Hope Bay, and the Taunton
Estuary; (3) "organic loadings from [combined sewer overflows] to
-40-
the upper and lower [Taunton Estuary] have declined; and (4) "algal
levels in [Mount Hope Bay] have declined."
Insofar as the City challenges the facial validity of
the SMAST data due to the time that had elapsed since its
collection, that argument is unavailing. Our standard of review,
once more, does not deputize us to second-guess the EPA's choice
of data, so long as the agency acts "with a reasonable basis" in
selecting and applying it. Upper Blackstone, 690 F.3d at 26. And
here, as the EAB explained, the agency had good reason for relying
on the SMAST data, which drew from 22 different monitoring
stations: the more recent studies -- such as that of the
Narragansett Bay Water Quality Network -- were "limited in terms
of location and parameters monitored and thus were insufficient to
form the basis for an alternative analysis of the Taunton Estuary."
Moreover, the EPA did not ignore that recent data, but rather found
that it was "consistent with [its] analysis of the SMAST data and
indicated continued adverse water quality impacts." Further, we
have recognized that "neither the CWA nor EPA regulations permit
the EPA to delay issuance of a new permit indefinitely until better
science can be developed, even where there is some uncertainty in
the existing data." Id. at 22; see also Massachusetts v. EPA, 549
U.S. 497, 534 (2007) (explaining that the EPA cannot avoid its
statutory obligation to regulate greenhouse gases by "noting the
-41-
uncertainty surrounding various features of climate change" when
"sufficient information exists to make an endangerment finding").
Thus, we think that the EPA was well-entitled to use the SMAST
data in the manner that it did here.
Moreover, the agency's express consideration of the four
different recent developments identified by the City reinforces
our conclusion that the permit's nitrogen limit was not arbitrary
or capricious. With regard to the Brayton Point plant, the EPA
resoundingly rejected the notion that the plant's closure should
have impacted its analysis. First, it explained that while
operative, the plant's thermal discharges may have "contributed
incrementally to dissolved oxygen depletion in Mount Hope Bay
[but], . . . extensive modeling efforts . . . were unable to
quantify the impact of those thermal discharges on [dissolved
oxygen] concentrations." The EPA further explained in the
response to comments that the impact of the plant's thermal
discharges was minimal in the Taunton River Estuary because of
that portion of Mount Hope Bay's naturally elevated temperatures.
And the EPA also noted that -- because thermal loads in the Mount
Hope Bay had been "dramatically reduced since 2011," while
dissolved oxygen depletions nonetheless persisted during that
period -- the City's theory that the plant's closure had remedied
-42-
the Taunton Estuary's low dissolved oxygen levels was "unsupported
by any evidence at all."
Turning to the City's next argument -- that the EPA
failed to consider new data indicating that total nitrogen inputs
had declined -- we note that the EAB rejected the City's claim
that the agency failed to consider "potential improvements." In
so doing, the EAB emphasized that in the response to comments, the
EPA explained that "while some nitrogen reductions have occurred
in connection with improved treatment at other wastewater
treatment plants in Massachusetts, these reductions are not
predicted to be sufficient to achieve the target nitrogen
concentration or water quality standards."
The EPA also took up the City's submission concerning
reduced combined sewer overflows in the response to comments, but
concluded that those reductions "while important in addressing
other pressing water quality problems, are not expected to have a
significant impact on [dissolved oxygen] conditions in the upper
Taunton River estuary." The EPA also explained that those
reductions came nearly entirely from combined sewer overflows
"located more than 6 miles downstream of the station used as the
locus for the loading analysis and discharge only during wet
weather, when flows from the Taunton River are at their highest
-43-
and . . . move most strongly away from the estuary." Thus, the EPA
was similarly unmoved by this objection from the City.
Finally, while the City maintains that the EPA has
conceded that algal conditions have improved, the EPA's engagement
with that argument in the response to comments proves otherwise.
There, it explained that it disagreed with the City's comment
asserting that "[a]lgal levels in Mount Hope Bay have dropped
significantly since 2004/05" and that "[p]eak and average algal
levels are at all-time lows." That comment, the EPA tells us,
attempted to draw "conclusions from a single year of variation[,]
2010, while 2009 was the highest year on record for average
chlorophyll-a concentrations." And, the EPA added, the
chlorophyll-a concentrations recorded in 2010, "while lower than
those seen in 2004-05, are still significantly higher than the
levels identified in the Critical Indicators Report as reflecting
unimpaired conditions in SB waters." We, therefore, do not think
that the EPA's permitting decision suffers from any failure to
engage with this submission either. The City, therefore, fails
to convince us that the EPA impermissibly relied on the SMAST data
or neglected to consider developments that post-dated that data.
We now turn to its final contention: that, in allocating
the total daily maximum nitrogen load of 939 lbs. among point-
sources of nitrogen, the EPA ignored the "impact of the largest
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(by far) discharger in the system" -- the City of Fall River. The
EPA urges us to find this argument waived, the City having raised
it only after briefing before the EAB was complete, by way of an
untimely submission. But even were we to consider this argument
on the merits, the outcome would be no better for the City. For,
the EPA calculated the Permit's nitrogen limit based on standards
governing and conditions in the Taunton River Estuary, while Fall
River discharges only into the greater Mount Hope Bay. And, far
from ignoring Fall River's impact on conditions in Mount Hope Bay,
the EPA explained as early as in the fact sheet that "[w]hile other
loads to Mount Hope Bay (particularly the Fall River [wastewater
treatment plant]) will need to be addressed as well, the reduction
in nitrogen loadings from the Taunton River will ensure that those
discharges do not cause or contribute to nitrogen-related
impairments in Mount Hope Bay.
Having considered all of the City's protestations to the
contrary, we find that in calculating the Permit's effluent limit,
the EPA neither relied on impermissible factors nor failed to
consider a crucial aspect of the problem, and that its explanation
for that limit neither flaunted the evidence in the record nor 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, 463 U.S. at 43. As the EPA's detailed explanation of how
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it calculated the permit's nitrogen limit of 3.0 mg/l reveals,
that limit falls within the "zone of reasonableness," and so we do
not see fit to second-guess it. See Upper Blackstone, 690 F.3d
at 28; see also Solite Corp. v. EPA, 952 F.2d 473, 488 (D.C. Cir.
1991). As a result, we leave undisturbed this well-reasoned
exercise of the EPA's delegated authority to administer the CWA.
III.
None of the City's procedural or substantive challenges
having merit, the decision of the EAB is affirmed.
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