Delaware Riverkeeper Network v. Sec PA Dept Env Protection

• Court: Court of Appeals for the Third Circuit
• Decided: August 15, 2019
• Docket: 17-3299
• Status: Unpublished

Opinion

NOT PRECEDENTIAL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