Delaware Riverkeeper Network v. Sec PA Dept Env Protection ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 17-3299
_________________
DELAWARE RIVERKEEPER NETWORK; DELAWARE RIVERKEEPER; MAYA
VAN ROSSUM,
Petitioners
v.
SECRETARY PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION; PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Respondents
TRANSCONTINENTAL GAS PIPELINE COMPANY, LLC
Intervenor
_________________
On Petition for Review of an Order of the Pennsylvania
Department of Environmental Protection
(File No. PAG109623)
_________________
Submitted Under Third Circuit L.A.R. 34.1(a)
April 26, 2019
Before: SMITH, Chief Judge, CHAGARES, FUENTES, Circuit Judges
(Filed August 15, 2019)
_________________
OPINION**
_________________
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.
Petitioner Delaware Riverkeeper1 has challenged the decision of Respondent
Pennsylvania Department of Environmental Protection to allow the Transcontinental Gas
Pipe Line Company (or “Transco”) to discharge water used to conduct hydrostatic testing
of Transco’s pipeline.2 The Department’s approval came after Transco submitted a Notice
of Intent to comply with a general permit issued by the Department to regulate all such
hydrostatic testing statewide. Delaware Riverkeeper argues that this process violates a
number of regulatory and statutory requirements. Riverkeeper also argues that the case is
not ripe for review.
This Court has recently resolved the question of ripeness in a parallel proceeding.3
We follow that precedent in concluding we have jurisdiction over this case as well. As
explained in this decision, we further conclude that Riverkeeper’s challenge fails on the
merits. We will therefore deny the petition for review.
I.
1
For simplicity, we refer to Petitioners Delaware Riverkeeper Network, The Delaware
Riverkeeper, and Maya Van Rossum together as “Delaware Riverkeeper” or
“Riverkeeper.”
2
Transco has intervened in this litigation.
3
Delaware Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot., 903 F.3d 65, 70-75
(3d Cir. 2018) (Riverkeeper III). This is the latest in a series of similar cases, including
Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental
Protection, 833 F.3d 360 (3d Cir. 2016) (Riverkeeper I), and Delaware Riverkeeper
Network v. Secretary Pennsylvania Department of Environmental Protection, 870 F.3d
171 (3d Cir. 2017) (Riverkeeper II).
2
The Natural Gas Act provides a comprehensive statutory scheme to regulate
interstate natural gas sales and transportation.4 That Act gives the Federal Energy
Regulatory Commission ultimate authority to oversee the process and ensure that a
proposed project complies with the web of subsidiary and complementary authorities that
govern such an undertaking,5 such as the federal Clean Water Act.6 No party may build a
pipeline without receiving a “certificate of public convenience and necessity” from the
Commission.7
States also retain authority in this process.8 For example, no company can build a
pipeline without approval from any affected states that the proposed pipeline complies with
the Clean Water Act, as well as any other state water quality standards.9 States may place
limitations on these certifications, which “become a condition on any [f]ederal license or
permit.”10 The Pennsylvania Department of Environmental Protection controls state water
quality approvals in that state.11 Parties can appeal any Department decision to
Pennsylvania’s Environmental Hearing Board.12
Here, to obtain final approval to build a pipeline that would run through
Pennsylvania, Transco requested a “water quality certification” from the Department,
4
15 U.S.C. § 717(b).
5
Id. § 717n(b).
6
See 33 U.S.C. § 1341.
7
15 U.S.C. § 717f(c)(1)(A).
8
See id. § 717b(d); 33 U.S.C. § 1341.
9
33 U.S.C. § 1341(a)(1). States may waive this authority. See id.10
Id. § 1341(d).
11
35 Pa. Stat. and Con. Stat. Ann. § 691.5.
12
25 Pa. Code § 1021.52(a).
3
which would certify that the pipeline conforms with the Clean Water Act and other state
water-quality standards.13
The Department, after a period of notice and comment, issued a final certification.14
The Department conditioned its certification on Transco’s ability to meet certain other
requirements; among others, Transco needed to acquire and comply with a permit to
discharge water used in hydrostatic testing.15 Hydrostatic testing is a process by which
water is pumped into pipes to check them for strength or leaks. A hydrostatic testing permit
would allow Transco to discharge the water once the test was finished.
The Department uses what is known as a general permitting system for hydrostatic
testing. The general permit system increases administrative processing speeds for
functionally similar activities—such as hydrostatic testing. “General permitting has long
been recognized as a lawful means of authorizing discharges.”16 Rather than issue
individual permits to every entity that wishes to hydrostatic test, the Department issues
what is known as a “general permit.” A general permit establishes the requirements that
all entities wishing to hydrostatic test must meet.17 That general permit undergoes a public
notice period and is then promulgated, like any other regulation.18
13
45 Pa. Bull. 3274 (June 20, 2015); JA057-119; see 33 U.S.C. § 1341(a)(1).
14
46 Pa. Bull. 2132-33 (Apr. 23, 2016).
15
This application is required under Pennsylvania’s Clean Streams Law, Act of June 22,
1937, P.L. 1987, as amended 35 Pa. Stat. and Con. Stat. Ann. §§ 691.1-691.1001, §
691.402; and associated regulations, 25 Pa. Code § 92a.
16
Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir. 2003) (citing Nat. Res. Def.
Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977)).
17
See 25 Pa. Code § 92a.54(b).
18
Id. § 92a.84(a), (b).
4
Once the permit is in force, entities seeking approval under it may submit a “Notice
of Intent” detailing how they intend to meet the general permit’s requirements.19 Assuming
the Notice of Intent conforms with the permit, the Department approves the Notice and the
entity is covered under the general permit.
Transco followed this process here, and submitted a Notice of Intent to comply
with the Department’s general hydrostatic discharge permit. The Department determined
that Transco was eligible for coverage under that permit, and, in April 2017, published a
notice to that effect. Riverkeeper challenged that conclusion, and in October 2017, filed
the petition for review before us now. It contends that this permitting process circumvents
required public notice periods that would have allowed it to comment on Transco’s plans.
II.
Riverkeeper’s petition has both a jurisdictional and substantive component.
Although it filed the petition for review, Riverkeeper asserts that this issue is not ripe before
the Court. Riverkeeper also challenges the Department’s actions on the merits. We
consider each in turn.
A. Jurisdiction
The Natural Gas Act provides us with original and exclusive jurisdiction to hear
“any civil action for the review of an order or action of a . . . State administrative agency .
. . to issue, condition, or deny any permit, license, concurrence, or approval.”20 Despite
this broad grant of review, Riverkeeper argues that the Court lacks jurisdiction to hear its
19
Id. § 92a.23.
20
15 U.S.C. § 717r(d)(1).
5
petition because the matter is not ripe. It asserts that the Department’s decision must be
first reviewed by Pennsylvania’s Environmental Hearing Board, and is therefore not a final
order or action. However, we have previously addressed this question in Riverkeeper III.21
There, we held that a final decision by the Department is a final agency action and is ripe
for review.22 The Department’s decisions are “immediately effective” and “[t]he
Department and the Board are entirely independent agencies.”23 Riverkeeper gives us no
reason to disturb that conclusion here. Its petition is ripe, and we have jurisdiction to hear
the merits of the claim.
B. Riverkeeper’s Merits Arguments
When reviewing an agency action on the merits, the Court reviews interpretation of
federal law de novo and reviews agency decisionmaking under an arbitrary and capricious
standard.24 Riverkeeper “is not challenging the Department’s formulation of the . . . general
permit itself.”25 The gravamen of Riverkeeper’s petition here is that the Department, by
accepting Transco’s Notice of Intent to comply with the general hydrostatic testing permit,
failed to follow necessary procedures, particularly those related to public participation.
Riverkeeper identifies several ways in which it believes the Department violated the law
by approving Transco’s Notice.
21
903 F.3d at 70-75.
22
Id. at 74-75.
23
Id. at 73.
24
5 U.S.C. § 706; Riverkeeper I, 833 F.3d at 377.
25
Pet’rs’ Br. at 19.
6
First it argues that three different sections of the Clean Water Act required the
Department to allow a public notice and comment period before accepting Transco’s
Notice. They are: (1) 33 U.S.C. § 1342(a)(1), which requires a public hearing before a
discharge permit may be issued;26 (2) § 1251(e), which “provide[s] for [and] encourage[s]”
“public participation in the development, revision, and enforcement of any regulation,
standard, effluent limitation, plan, or program;” and (3) § 1342(j), which requires that “[a]
copy of each permit application and each permit shall be available to the public.”
However, the Department did hold a public notice period—prior to finalizing the
general hydrostatic testing permit. At that point the public was on notice that the
Department would approve hydrostatic testing discharges into the state waterways based
on the promulgated criteria. The Department’s approval of Transco’s Notice is not a
separate permit; it is simply a confirmation that Transco’s plan conforms with the general
permit’s requirements. All substantive requirements appear in the general permit, and
Transco’s Notice simply shows it intends to comply with those standards.
The Notice could nevertheless be an “application” for a permit. If it was, then under
§ 1342(j) a copy of it must have been made publicly available. Further, if the Notice was
a permit application, then it would follow that the Department’s approval would be a
permit—triggering §§ 1342(a)(1) & 1251(e)’s notice requirements.
However, the Notice is not an application. The Pennsylvania Code defines a Notice
of Intent as “[a] complete form submitted for . . . general permit coverage which contains
26
33 U.S.C. § 1342(a)(1) (“[T]he Administrator may, after opportunity for public hearing
issue a permit for the discharge of any pollutant . . . .”).
7
information required by the terms of the permit and by § 92a.54 (relating to general
permits). An NOI is not an application.”27
Riverkeeper argues that the Notice is nevertheless the “functional equivalent” of an
application.28 It points to two cases—Environmental Defense Center, Inc. v. EPA29 and
Waterkeeper Alliance, Inc. v. EPA30—in which other Circuits found that similar Notices
were the equivalent to permit applications.31 EDC, upon which Waterkeeper relies, found
that “clear Congressional intent requires that [Notices] be subject to the Clean Water Act’s
public availability and public hearings requirements.”32
However, what distinguishes both EDC and Waterkeeper is that, in both cases, the
Notices contained significant material information not found in the respective general
permits. The EDC court recognized that the permitting system before it “differ[ed] from
the traditional general permitting model,” because under that scheme it was the Notices,
“and not the general permits, that contain the substantive information about how the
operator” would comply with the relevant limitations.33 The same was true in Waterkeeper,
27
25 Pa. Code § 92a.2. Riverkeeper identifies many instances in which the Department
calls a Notice an “application” in guidance documents. However, Riverkeeper does not
explain why these statements would supersede the codified statement found in § 92a.2.
At best, this argument goes to whether a Notice is the “functional equivalent” to an
application.
28
Pet’r Br. 39.
29
344 F.3d 832 (9th Cir. 2003) (“EDC”).
30
399 F.3d 486 (2d Cir. 2005) (“Waterkeeper”).
31
Riverkeeper also cites to several non-Pennsylvania state law cases, which are not
relevant to the issue at hand.
32
344 F.3d at 856.
33
Id. at 853, 857.
8
which involved a general permit for animal feeding operations.34 The court concluded that
animal nutrition management programs, included in notices but not in the general permit,
constituted effluent limits that substantively impacted the effect of each individual
discharge.35 The court invalidated the associated rule after concluding that the EPA
“fail[ed] to require that the terms of the nutrient management plans be included in [the
general] permits.”36
Riverkeeper has not identified ways in which the required Notices include the kind
of unique substantive information absent from the general hydrostatic testing permit, as
was the case in EDC and Waterkeeper. While Riverkeeper points to significant “site-
specific scientific and technical information” provided in the Notices, it admits that this
information was included “to demonstrate compliance with numerous substantive criteria
for coverage under the [general] permit.”37 In other words, the situation here follows the
“traditional model,” in which the substantive information is found in the general permit,
not the Notices. The notice requirements found in §§ 1342(a)(1), 1251(e), and 1342(j) of
the Clean Water Act are therefore not applicable to Transco’s Notice.
Finally, Riverkeeper also argues that the Department violated Section 401(a)(1) of
the Clean Water Act when it issued Transco’s water quality certificate. That Section
requires the Department to “establish procedures for public notice in the case of all
34
399 F.3d at 490.
35
Id. at 502.
36
Id. at 503.
37
Pet’rs’ Reply at 10, 11.
9
applications for certifications.”38 Riverkeeper argues that the Department violated this
Section because it issued Transco’s certification conditionally upon Transco also receiving
permits for, inter alia, hydrostatic testing. Riverkeeper asserts that the Department
“provided notice of only the conditional Section 401 water quality certificate—and not the
underlying substantive state permits.”39
This is a variant of the same argument we have previously addressed in several other
cases between these parties. We have held that the Department’s “preferred procedure for
considering Certifications along with other permits was not arbitrary and capricious
because . . . no construction can begin before the Department grants the substantive
permits, and all interested parties will have a full opportunity to weigh in” on the
applications.40 Riverkeeper does not provide us any reason to revisit that holding here.
We therefore conclude that the Department has not violated any public notice
obligation in approving Transco’s Notice of Intent.
III.
For the foregoing reasons, we will deny Riverkeeper’s petition for review.
38
33 U.S.C. § 1341(a)(1).
39
Pet’rs’ Br. 50.
40
Riverkeeper III, 903 F.3d at 76 (citing Riverkeeper I, 833 F.3d at 386-87).
10