UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-2340
PUERTO RICO AQUEDUCT AND SEWER AUTHORITY,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE ENVIRONMENTAL APPEALS BOARD
Before
Selya and Cyr, Circuit Judges,
and Pettine,* Senior District Judge.
Neil T. Proto, with whom John B. Britton, Lisa K. Hsiao,
Verner, Liipfert, Bernhard, McPherson & Hand, Chartered, Edgar
Rodriguez-Mendez, and Jorge Marrero-Narvaez were on brief, for
petitioner. Michael J. Zevenbergen, Attorney, U.S. Dep't of Justice
Environmental Defense Section, with whom Lois J. Schiffer, Acting
Assistant Attorney General, Stephen J. Sweeney (Office of General
Counsel, EPA), and Janice Whitney (Office of Regional Counsel,
EPA Region II), were on brief, for respondent.
August 31, 1994
*Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. The United States Environmental SELYA, Circuit Judge.
Protection Agency (EPA), respondent before us, refused to hold an
evidentiary hearing regarding its determination that a facility
in Mayaguez owned by petitioner, Puerto Rico Aqueduct and Sewer
Authority (PRASA), must fully meet the Clean Water Act's
secondary treatment requirements for publicly owned treatment
works (POTWs). The gist of EPA's decision was straightforward:
having previously established secondary treatment requirements
because PRASA's POTW emitted pollutants into stressed waters, it
determined that PRASA had failed to proffer any legally
cognizable basis for modifying the requirements.
Petitioner now seeks judicial review of this
determination. Its flagship objection demands that we place in
bold relief the concept of administrative summary judgment.
Petitioner's less touted objections implicate the agency's
"stressed waters" standards.1 Descrying no flaw in EPA's
application of either its procedural or substantive regulations,
we affirm.
I. STATUTORY AND REGULATORY FRAMEWORK
Under the Clean Water Act, no pollutant may be emitted
into this nation's waters except in compliance with a National
Pollution Discharge Elimination System (NPDES) permit. See 33
U.S.C. 1311(a) (1988). Ordinarily, the NPDES permit issued to
1"Stressed waters" are "those receiving environments in which an applicant can demonstrate to the satisfaction of the Administrator, that the absence of a balanced, indigenous population is caused solely by human perturbations other than the applicant's modified discharge." 40 C.F.R. 125.58(t) (1993).
a POTW includes certain technology-based standards known as
secondary treatment requirements. See id. 1311(b)(1)(B). A
POTW can obtain relief from these requirements by meeting nine
separate criteria. These criteria are limned in 33 U.S.C.
1311(h). They require the applicant to make various
demonstrations regarding matters such as: the effects of the
discharge on other sources and on marine life; standards and
procedures for monitoring the discharge; and methods of ensuring
control over the sources introducing waste into the POTW. Of
this ennead, only the second criterion, embodied in section
1311(h)(2), is relevant to this appeal.2
To satisfy section 1311(h)(2), a POTW must show that
the discharge of pollutants in accordance with such modified requirements will not interfere, alone or in combination with pollutants from other sources, with the attainment or maintenance of that water quality which assures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife, and allows recreational activities, in and on the water . . . .
33 U.S.C. 1311(h)(2) (1988). The information necessary for a
section 1311(h)(2) demonstration is described by the implementing
2While EPA's initial decision may be read to rest in part on PRASA's failure to satisfy subsections 1311(h)(1) and (h)(9), as well as (h)(2), the Environmental Appeals Board did not reach those issues, see In re Mayaguez Regional Sewage Treatment Plant,
NPDES Appeal No. 92-93 (August 23, 1993), slip op. at 9 n.13. Since the initial decision constitutes final agency action only when the Board denies review or summarily affirms, see 40 C.F.R.
124.91(f) (1993), not where, as here, the Board writes a full opinion, we decline EPA's invitation that we decide the case under either (h)(1) or (h)(9).
regulation, under which an applicant who cannot meet the
requirements of 40 C.F.R. 125.61(a)-(e) due to "human
perturbations" other than its modified discharge must meet the
stressed waters requirements of 40 C.F.R. 125.61(f). Under
these requirements, the applicant must demonstrate that its
discharge will not:
(1) contribute to, increase, or perpetuate such stressed conditions;
(2) contribute to further degradation of the biota or water quality if the level of human perturbation from other sources increases; and
(3) retard the recovery of the biota or water quality if the level of human perturbation from other sources decreases.
40 C.F.R. 125.61(f) (1993). For ease of comprehension, we
sometimes will refer to the (f)(1) showing as the "current
impacts" showing and the (f)(3) showing as the "future impacts"
showing. Although the (f)(2) showing would seem to be intimately
related to the (f)(3) showing, it was not discussed in the
proceedings below and, therefore, is not a matter of current
concern.
Unlike typical NPDES permit proceedings, EPA makes a
tentative decision to grant or deny section 1311(h) modifications
prior to proposing a permit. See 40 C.F.R. 125.59(d) (1993).
A POTW that has submitted a timely application for such
modification may revise it once as of right. See id.
125.59(d)(1). EPA also may authorize or request the submission
of additional information. See id. 125.59(f)(1).
After issuance of a tentative decision, followed by
public notice and opportunity for written comment, EPA makes a
final determination in regard to the proposed action. See 40
C.F.R. 124.15 (1993). That decision becomes the final permit,
effective in thirty days, unless it is administratively appealed.
See id. 124.15(b). If an appeal is taken, a party may request
an evidentiary hearing to contest the resolution of any question
raised in the earlier proceedings. See id. 124.74(a). The
request must specifically identify the legal and factual issues
and their relevance to the permit decision. Id. 124.75(b)(1).
EPA's Regional Administrator then grants or denies the request.
Id. 124.75(a)(1).
If a request for an evidentiary hearing is denied, the
denial becomes final agency action within thirty days unless a
protest is filed with the Environmental Appeals Board (the
Board). See id. 124.60(c)(5), 124.91. In turn, an order by
the Board abjuring review renders final the Regional
Administrator's previous decision. See id. 124.91(f)(1).
II. PROCEDURAL BACKGROUND
This case aptly illustrates how the regulatory scheme
works. PRASA initially sought a section 1311(h) modification for
its Mayaguez sewage facility by application dated September 13,
1979. EPA, hampered by delays in obtaining input from local
environmental officials, did not issue a tentative denial of the
request until February 6, 1984. One year later, after PRASA
presented a revised application, EPA issued another tentative
denial. On December 13, 1991, following notice, comment, and a
two-day public hearing, EPA dashed PRASA's hopes by issuing a
final denial of its request for modification.
Hope, of course, often springs eternal, see Alexander
Pope, An Essay on Man, Epistle 1 (1734), and PRASA's hopes of
obtaining a modification were renewed in 1992 by a United States
Geological Survey (USGS) report that contained some conclusions
helpful to PRASA's cause. PRASA commenced its administrative
appeal of EPA's final denial by submitting a request for an
evidentiary hearing accompanied by the draft USGS study. On July
23, 1992, the USGS report notwithstanding, EPA Region II rejected
PRASA's request for an evidentiary hearing. The Board affirmed.
See In re Mayaguez Regional Sewage Treatment Plant, NPDES Appeal
No. 92-93 (August 23, 1993) (Board Op.). PRASA immediately
invoked 33 U.S.C. 1369(b) and petitioned for judicial review.
In a passage that frames the central battleground in
this venue, the Board self-consciously construed the procedural
standard governing requests for evidentiary hearings, 40 C.F.R.
124.75, to necessitate the presence of a "genuine issue of
material fact" as a prerequisite to avoiding summary disposition
of requests for review, Board Op. at 11. The Board characterized
this requirement as "very similar to the requirement set forth in
Rule 56 of the Federal Rules of Civil Procedure." Id.; see also
id. at 13 (explaining that the Board's standard and the Rule 56
standard are "for our purposes virtually identical"). Warming to
the task, the Board lauded case law dealing with Rule 56 as
offering "useful guidance" in connection with section 124.75, id.
at 11, and proclaimed that the Rule 56 standard "should be
applied in the context of evidentiary hearing requests as well,"
id. at 13.
Scrutinizing the record through this prism, the Board
held that PRASA did not merit a hearing because it had not
presented a genuine issue of material fact as to either the
current impacts showing required under 40 C.F.R. 125.61(f)(1)
or the future impacts showing required under 40 C.F.R.
125.61(f)(3). Put another way, the Board thought that no
evidentiary hearing should be convened because PRASA had not
adduced sufficient proof from which a reasonable decisionmaker
could find, by a preponderance of the evidence,3 either that the
Mayaguez POTW was not currently contributing to the stressed
condition of the surrounding waters, or that the facility would
not in the future inhibit recovery of the surrounding stressed
waters in the event that other stresses relented. See id. at 15-
18. This ruling was tantamount to the entry of summary judgment,
effectively terminating PRASA's administrative appeal.
III. STANDARD OF REVIEW
We are mindful that we operate at the busy intersection
of three deferential standards of review. In the first place,
3The Board routinely applies the preponderance standard in permit determinations. See Board Op. at 13 n.18. This is of
some consequence for present purposes because Rule 56 frequently implicates the substantive burdens of proof that would apply if the particular case went forward uninterrupted. See Villanueva
v. Wellesley Coll., 930 F.2d 124, 129 (1st Cir.), cert. denied,
112 S. Ct. 181 (1991).
agency decisions made by informal adjudication may be set aside
only if they are "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law." 5 U.S.C. 706(2)(A)
(1988); see also Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983); Sierra Club v. Marsh, 976
F.2d 763, 769 (1st Cir. 1992). In the second place, an agency
deserves an extra measure of deference with regard to factual
questions involving scientific matters in its area of expertise.
See, e.g., Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103
(1983); FPC v. Florida Power & Light Co., 404 U.S. 453, 463
(1972); Town of Brookline v. Gorsuch, 667 F.2d 215, 219-20 (1st
Cir. 1981). Mixed questions of law and fact, at least to the
extent that they are fact-dominated, fall under this rubric. See
Gorsuch, 667 F.2d at 220; cf. In re Howard, 996 F.2d 1320, 1327-
28 (1st Cir. 1993) (recognizing that appeals in the federal court
system are usually arrayed along a degree-of-deference continuum
in which deference increases in proportion to the factual
component of the determination). And, finally, the respect
usually accorded an agency's interpretation of a statute it is
charged to execute, see Chevron U.S.A. Inc. v. NRDC, 467 U.S.
837, 842-45 (1984), is magnified when the agency interprets its
own regulations, see, e.g., Arkansas v. Oklahoma, 112 S. Ct.
1046, 1059-60 (1992); Commonwealth of Mass., DPW v. Secretary of
Agric., 984 F.2d 514, 524 (1st Cir. 1993) (citing cases).
IV. ADMINISTRATIVE SUMMARY JUDGMENT
In this court, PRASA hawks most vigorously a claim of
procedural error. This claim spotlights the Board's
interpretation of EPA's standard for dispensing (or dispensing
with) evidentiary hearings, especially its conclusion that the
text of the applicable regulation, 40 C.F.R. 124.75(a)(1)
(stipulating that, to warrant an evidentiary hearing and deflect
administrative summary judgment, the non-moving party must
establish the existence of "material issues of fact relevant to
the issuance of the permit"), should be read as the functional
equivalent of Fed. R. Civ. P. 56(c) (which authorizes summary
judgment if there is "no genuine issue as to any material fact,"
and thereby requires the non-moving party to establish the
existence of a genuinely disputed material fact to forestall
summary judgment). Section 124.75, PRASA asserts, contains no
"genuineness" requirement, and, moreover, even if the Board had
the authority to read a "genuineness" requirement into the
regulation, it could not do so without giving advance notice. We
find no merit in these assertions.
The Structure of Administrative Summary Judgment
In erecting an adjudicatory framework that included an
administrative summary judgment procedure, EPA necessarily
contemplated that, to qualify for an evidentiary hearing, a party
would have to present a genuine and material dispute. Those two
requirements are inherent in the very concept of administrative
summary judgment. Any other assumption borders on the
chimerical: under federal case law, a "material" fact is one
that may affect the outcome of the case, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); United States v. One
Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992); a
"genuine" fact dispute is one that a reasonable decisionmaker
could decide in favor of either party under the applicable
standard of proof, or in other words, one that is worthy of being
more fully adjudicated (trialworthy in the courts' parlance;
hearing-worthy in the agencies' parlance).4 See Liberty Lobby,
477 U.S. at 248-49; One Parcel, 960 F.2d at 204. To force an
agency fully to adjudicate a dispute that is patently frivolous,
or that can be resolved in only one way, or that can have no
bearing on the disposition of the case, would be mindless, and
would suffocate the root purpose for making available a summary
procedure. Indeed, to argue as does petitioner that a
speculative or purely theoretical dispute in other words, a
non-genuine dispute can derail summary judgment is sheer
persiflage.
We think that EPA's regulations lawfully can be read to
incorporate this binary test, featuring genuineness and
materiality. What is more, we refuse to attach talismanic
significance to the absence of the stock phrase "genuine issue of
material fact." The reference found in 40 C.F.R. 124.75(a)(1)
to "material" issues of "relevant" fact achieves precisely the
same end. In practice, courts and agencies regularly use a
variety of terms to describe the two pillars of summary judgment.
4While these definitions developed in the milieu of Rule 56, they are by no means limited to that milieu.
We hasten to add that, despite this linguistic
equivalency, explicitly drawing a connection to Rule 56
accomplishes three things. First, it provides a common
vocabulary, easily understandable by litigants, lawyers, and
adjudicators. Second, it introduces into an agency's
jurisprudence a ready-made ensemble of decisional precedents
associated with Rule 56, see, e.g., Garside v. Osco Drug, Inc.,
895 F.2d 46, 48 (1st Cir. 1990) (holding that at the summary
judgment stage the evidence must be examined in the light most
favorable to the nonmovant). Third, it carries with it certain
expectations, conditioned by everyday experience in the federal
courts, about the kind and degree of evidence deemed necessary to
create a genuine dispute over a material fact. See, e.g.,
Liberty Lobby, 477 U.S. at 249-50 (explaining that to withstand
summary judgment, evidence must be "significantly probative");
Garside, 895 F.2d at 49-50 (discussing type and kind of opinion
evidence that may forestall summary judgment).
Notwithstanding the obvious advantages of drawing a
parallel between the courts' and the agencies' versions of
summary judgment, petitioner contends that the Board went too far
too fast. In support, PRASA posits three interrelated arguments:
(1) that summary judgment, as it exists in the courts, has no
legitimate place in agency practice; (2) that administrative
summary judgment does not carry with it the baggage of Rule 56;
and (3) that, in all events, EPA took an impermissible shortcut
and embraced a Rule 56 standard precipitously, without affording
fair notice or an opportunity to respond. These arguments lack
force.
The Validity of Administrative Summary Judgment
The choice between summary judgment and full
adjudication in virtually any context reflects a balancing of
the value of efficiency against the values of accuracy and
fairness. Seen in that light, summary judgment often makes
especially good sense in an administrative forum, for, given the
volume of matters coursing through an agency's hallways,
efficiency is perhaps more central to an agency than to a court.
See Charles C. Ames & Steven C. McCracken, Framing Regulatory
Standards to Avoid Formal Adjudication: The FDA As a Case Study,
64 Cal. L. Rev. 14, 34-35 (1976). At the same time, summary
judgment is less jarring in the administrative context; after
all, even under optimal conditions, agencies do not afford
parties full-dress jury trials. Taking these factors into
account, it is unsurprising that most major agencies in the
federal system have opted to make available procedures for the
summary disposition of adjudicatory matters. See, e.g., 10
C.F.R. 2.749 (1994) (NRC); 16 C.F.R. 3.24 (1994) (FTC); 21
C.F.R. 12.93 (1994) (FDA); 47 C.F.R. 1.251 (1993) (FCC); 40
C.F.R. 22.20, 124.75, 164.91 (1993) (EPA); 29 C.F.R. 102.35(h)
(1993) (NLRB); 29 C.F.R. 2200.2 (1993) (OSHA).5
5An important exception is the SEC. See Rules of Practice,
Exchange Act Release No. 33,163 [1993 Transfer Binder] Fed. Sec. L. Rep. (CCH) 85,257, at 84,742 (Nov. 5, 1993) (rejecting Rule 56 model on grounds that SEC practice does not permit discovery or prehearing affidavits).
Administrative summary judgment is not only widely
accepted, but also intrinsically valid. An agency's choice of
such a procedural device is deserving of deference under "the
very basic tenet of administrative law that agencies should be
free to fashion their own rules of procedure." Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 544 (1978). Applying
this tenet, the Court has upheld an assortment of summary
procedures, some closely resembling Rule 56, in the face of
claims that the procedures are invalid because they deprive
parties of their "right" to a hearing before the agency. See
Heckler v. Campbell, 461 U.S. 458, 467 (1983); National Indep.
Coal Operators' Ass'n v. Kleppe, 423 U.S. 388, 398-99 (1976); FPC
v. Texaco Inc., 377 U.S. 33, 39-44 (1964); United States v.
Storer Broadcasting Co., 351 U.S. 192, 205 (1956); see also Ames
& McCracken, supra, at 41 n.164 (listing cases to similar effect
involving different agencies). Most significantly for our
purposes, the Court has given its seal of approval to a highly
analogous summary procedure for denial of a hearing, see
Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 621
(1973) (involving FDA's procedure for administrative summary
judgment), and to an earlier version of the very procedure that
we review today, see Costle v. Pacific Legal Found., 445 U.S.
198, 214 (1980).6
6Costle dealt with the direct ancestor of 40 C.F.R.
125.75(a)(1), namely, 40 C.F.R. 125.36(c)(1)(ii) (1979). The Court held that the EPA lawfully could "limit any adjudicatory hearing to the situation where an interested party raises a material issue of fact." 445 U.S. at 214.
Petitioner's claim of invalidity consists mainly of
rhetorical flourishes and cannot scale this mountain of case law.
Due process simply does not require an agency to convene an
evidentiary hearing when it appears conclusively from the papers
that, on the available evidence, the case only can be decided one
way. See Hynson, 412 U.S. at 621. It follows that
administrative summary judgment, properly configured, is an
acceptable procedural device.
Applicability of Rule 56 Precedents
Petitioner's attempt to break the bond between
administrative summary judgment and its courtroom counterpart is
similarly unavailing. From its inception, the concept of
administrative summary judgment has been linked inextricably to
Fed. R. Civ. P. 56. In all probability, it was Professor Davis
who first forged this link. He wrote: "Some agencies might well
take a leaf from the federal rules of civil procedure and permit
summary judgment without evidence when no issue of fact is
presented." 1 Kenneth C. Davis, Administrative Law Treatise
8.13, at 578 (1958). A dozen years later, two other leading
administrative law scholars seized upon this sentence and
developed it into a highly influential report to the Committee on
Agency Organization and Procedure of the Administrative
Conference of the United States. See Ernest Gellhorn & William
F. Robinson, Jr., Summary Judgment in Administrative
Adjudication, 84 Harv. L. Rev. 612 (1971) (rendering the report
in article form).
Consistent with the circumstances of its birth,
administrative summary judgment has maintained a close
relationship with Rule 56. Many agencies habitually look to Rule
56 case law for guidance in respect to administrative summary
judgments. See, e.g., Phillips Pipe Line Co. v. Phillips Pipe
Co., 1994 FERC LEXIS 757, at *3 (April 26, 1994) (applying 18
C.F.R. 385.217); United States v. Scotto Bros. Woodbury
Restaurant, Inc., 1993 OCAHO LEXIS 95, at *14 (December 7, 1993)
(outlining practice in Executive Office for Immigration Review).
Other agencies, like EPA in the present context, have taken the
step of formalizing the relationship. See, e.g., 29 C.F.R.
2200.2 (1993) (making Rule 56 directly applicable to proceedings
before OSHA); see also In re Summary Decision Procedures, 34
F.C.C.2d 485, 487-88 (1972) (characterizing an FCC summary
disposition regulation, 47 C.F.R. 1.251(a)(1), as "essentially
the same" as Rule 56).
In view of this history, one respected court has gone
so far as to say, perhaps overbroadly, that the principles of
summary judgment outlined in Liberty Lobby "apply with equal
force in the context of administrative judgment." John D.
Copanos & Sons, Inc. v. FDA, 854 F.2d 510, 523 (D.C. Cir. 1988).
We take a more circumspect view. In our opinion, Rule 56 is the
prototype for administrative summary judgment procedures, and the
jurisprudence that has grown up around Rule 56 is, therefore, the
most fertile source of information about administrative summary
judgment. Thus, "[w]ith minor individual modifications, the
summary judgment procedures should be similar in most agencies
[to those under Rule 56]." 1 Charles H. Koch, Jr.,
Administrative Law & Practice 5.78, at 419 (1985). Hence, we
reject petitioner's contention that Rule 56 precedents are
inapposite in proceedings before administrative agencies.
Departure from Precedent
The linchpin of petitioner's final procedural argument
is the notion that the Board broke new ground in patterning its
inquiry after Rule 56. We disagree.
It is well established that agencies are free to
announce and develop rules in an adjudicatory setting. See,
e.g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974). Of
course, there are limits on this freedom. As a general matter,
when an adjudicating agency retroactively applies a new legal
standard that significantly alters the rules of the game, the
agency is obliged to give litigants proper notice and a
meaningful opportunity to adjust.7 See, e.g., Aero Mayflower
Transit Co. v. ICC, 699 F.2d 938, 942 (7th Cir. 1983); Hatch v.
FERC, 654 F.2d 825, 835 (D.C. Cir. 1981). By the same token, an
agency "cannot depart significantly from prior precedent `without
explicitly recognizing that it is doing so and explaining why.'"
Congreso de Uniones Industriales v. NLRB, 966 F.2d 36, 39 (1st
7While this requirement derives in part from a section of the Administrative Procedure Act that applies only to full- fledged hearings, see 5 U.S.C. 554(b)(3) (1988), the
requirement is grounded on general considerations of fairness. Accordingly, we see no reason why it should not also apply to adjudicative proceedings.
Cir. 1992) (citation omitted); accord Davila-Bardales v. INS,
F.3d , (1st Cir. 1994) [No. 93-2124, slip op. at 8].
These principles do not assist petitioner's cause.
Though petitioner asseverates that, in the proceedings below, EPA
abruptly adopted a new legal standard that substantially changed
the showing required of a party seeking an evidentiary hearing,
this scenario is more imagined than real. Here, the record
reflects neither a departure from precedent nor an alteration of
the required showing. To the contrary, the Board's approach to
section 124.75 proceeds naturally from its earlier construction
of the provision and falls well within the mainstream of its
previously established practice. We explain briefly.
Although the Board never before has made the equation
between Rule 56 and EPA's summary judgment procedure so explicit,
it traditionally has equated its procedural standard for denial
of an evidentiary hearing anent an NPDES permit with the Rule 56
yardstick. On at least three prior occasions, the Board
suggested that section 124.75's reference to the presentation of
"material issues of fact relevant to the issuance of the permit"
requires the nonmovant to set forth a "genuine issue of material
fact." See In re City of Jacksonville, Etc., NPDES Appeal No.
91-19 (Aug. 4, 1992), slip op. at 2; In re Miami-Dade Water &
Sewer Auth. Dep't, NPDES Appeal No. 91-14 (July 27, 1992), slip
op. at 17; In re Great Lakes Chem. Corp., NPDES Appeal No. 84-8
(Sept. 3, 1985), slip op. at 4.8
Then, too, EPA has long espoused the view, in a wide
variety of settings, that while the Civil Rules are not binding
on agencies, they may inform administrative practice in
appropriate situations. See, e.g., In re Harmon Elecs., Inc.,
1993 RCRA LEXIS 113 at *9-*10 (Aug. 17, 1993); In re Premier
Metal Prods., 1992 RCRA LEXIS 156, at *2 (Dec. 23, 1992). This
is an approach rather consistently followed both by EPA, see,
e.g., In re Wego Chem. & Mineral Corp., 1993 TSCA LEXIS 91, at
*25-*26 (Feb. 24, 1993), and by the federal courts, see, e.g.,
Amberg v. FDIC, 934 F.2d 681, 685 (5th Cir. 1991) (suggesting
that administrative decisionmakers should look for guidance to
the Civil Rules when interpreting regulations containing concepts
or language derived in part from those rules).
In sum, the procedure to which PRASA objects did not
spring suddenly and unannounced from EPA's bureaucratic brow.
Rather, by the time that the agency decided this case, the
concept that only the presence of a genuine issue about a
material fact could forestall brevis disposition had taken deep
8Great Lakes is of special interest, for in that case the
EPA made manifest that it considered the term "material" as used in section 124.75 to be akin to the federal courts' definition of "genuine" under Rule 56. After making a casual reference to Rule 56's language, the Board concluded, using the terms contained in section 124.75, that the petitioner's evidence was "relevant" but not "material." It was not "material," the Board explained, because "evidentiary hearings [should not] be granted whenever a party makes a bare assertion, without anything more, that a permit's monitoring requirements should be reduced or modified this would hopelessly crowd hearing dockets and clearly is not in accord with the purposes of . . . the Agency's regulations." Great Lakes, at 14.
root in administrative soil. Thus, PRASA should have known all
along that it would be expected to present a genuine and material
dispute in order to earn an evidentiary hearing. Though the
Board had never before invoked Rule 56 in haec verba as a guide
to section 124.75, any reasonable litigant familiar with
administrative practice in general and with EPA's precedents in
particular should have anticipated that it would be required to
present evidence adequate to overcome the functional equivalent
of a Rule 56 motion.9
Little more need be said. The Board's use of Rule 56
here was consistent both with its prior practice and with
prevalent understandings of administrative summary judgment.
Thus, the Board's articulation, albeit "new" in a certain sense,
falls well within the range of hitherto unspoken principles that
appropriately may be announced in the course of rendering an
adjudicative determination. See Bell Aerospace, 416 U.S. at 294;
SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1947); Molina v. INS,
981 F.2d 14, 22-23 (1st Cir. 1992).
In the last analysis, courts must take a practical,
commonsense view of the restrictions that constrain an agency's
freedom to alter prior practices. Those restrictions, properly
construed, do not lock an agency into a position where it
9In any event, to the extent (if at all) that PRASA failed to realize that Rule 56 would inform the Board's decision about whether to hold a hearing, we fail to see how it was prejudiced. For aught that appears, PRASA's evidentiary presentation would not have differed; to this date it has been unable to deterrate any proof sufficient to create a genuine issue about either current or future impacts.
invariably must parrot the same phrases or perpetually chant the
same mantra. Reasonable refinement and reformulation are both
permissible and advisable in administrative adjudication.
Nothing more transpired here.
V. THE STRESSED WATERS SHOWINGS
We now move from the procedural to the substantive. In
scrutinizing an order of an agency denying an evidentiary
hearing, a reviewing court must determine whether the agency's
findings accurately mirror the record, and if they do, whether
those findings warrant denial of a hearing under the pertinent
regulations. See Hynson, 412 U.S. at 622. In this instance, the
first part of the inquiry tells the tale, for, if PRASA failed to
present evidence adequate to create a genuine issue of material
fact on one or more critical criteria, as EPA found, then EPA
properly denied the requested hearing.
The Future Impacts Showing
Under 40 C.F.R. 125.61(f)(3), it was incumbent upon
PRASA to show, inter alia, that the emissions from the Mayaguez
POTW would not "retard the recovery of the biota or water quality
if the level of human perturbation from other sources decreases."
In promulgating this requirement, EPA recognized that it was
erecting a high hurdle. Indeed, it stated in a preamble to the
regulations:
As a practical matter, it will be extremely difficult for most applicants discharging into stressed waters to demonstrate that their discharge will meet the requirements of section 125.61. As a factual matter, the discharge of additional pollutants into an
already polluted marine environment virtually always increases or contributes to adverse impact; it is extremely difficult, as a practical matter, to demonstrate that it does not.
44 Fed. Reg. 34,784, 34,806 (June 15, 1979).
EPA concluded that PRASA had not cleared this hurdle,
and the Board concurred. It noted that the studies submitted by
petitioner principally the USGS report addressed only the
current impacts of the facility's emissions relative to the
current impacts of all other emissions, and did not purport to
make predictions regarding future impacts. See Board Op. at 15-
16. Accordingly, without defining exactly what type of evidence
might surmount the (f)(3) hurdle, the Board determined that
petitioner's effort came up short. If this determination holds
water, then the agency had a right summarily to deny the
petition.10
This reasoning finds a striking parallel in Hynson.
There the Court agreed that an agency was not required to
"provide a formal hearing where it is apparent at the threshold
10PRASA makes a rather convoluted threshold argument that implicates the order of the showings which must be made to secure modification of secondary treatment requirements. In this case, we doubt that the order of the showings makes the slightest difference. Moreover, there is absolutely no basis for believing either that the showings must be made in a particular sequence, or that separate hearings must be held for each showing. Absent a contrary indication in the regulation itself and none exists here we think it is fair to assume that a party must satisfy every element of a provision written in the conjunctive. See
WJM, Inc. v. Massachusetts DPW, 840 F.2d 996, 1011 (1st Cir.
1988); Donovan v. Burger King Corp., 672 F.2d 221, 227 (1st Cir.
1982); see also 1A Norman J. Singer, Sutherland Stat. Constr.
21.14 (5th ed. 1993).
that the applicant has not tendered any evidence which on its
face meets the statutory standards as particularized by the
regulations," Hynson, 412 U.S. at 620 (emphasis in the original).
Spurred by Hynson, see id. at 621 n.17, FDA soon thereafter
announced that, with regard to an imprecise regulation, a study
would not conclusively be deemed inadequate unless it totally
failed "even to attempt to comply." See 39 Fed. Reg. 9757 (Mar.
13, 1974). Since that time, the courts have upheld FDA's summary
denials of hearings under this policy. As the District of
Columbia Circuit explained:
[E]ven "a regulatory provision which seems vague in the abstract may nonetheless be conclusively at odds with a peculiarly deficient item of evidence." Thus . . . summary judgment may be entered not only for failure to comply with precise regulations, but also "on the basis of manifest noncompliance with general statutory or regulatory provisions . . . ."
Copanos, 854 F.2d at 522 (citations omitted). We agree.
Although in some cases an imprecise regulation may require an
agency to give an applicant the benefit of the doubt regarding a
summary decision, other cases will be so clear-cut as to warrant
summary adverse action, notwithstanding the imprecision in the
agency's standards. We believe the present case falls into the
heartland of the latter category.
The Board's reasoning is also hauntingly reminiscent of
Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982), cert.
denied, 461 U.S. 927 (1983), a case involving the Clean Water
Act. There, the court of appeals agreed that the Army Corps of
Engineers need not hold a hearing on every application for a
permit to discharge dredged or fill material into navigable
waters. Id. at 1174-83. One reason given was that the
petitioner
apparently decided not even to attempt to make the three showings required under [the applicable regulations]. Procedural improvements in the nature of trial-type safeguards could do nothing to remedy so fundamental a flaw in the prima facie case.
Id. at 1183 (footnote omitted).
PRASA does not deny that its studies failed to draw
direct conclusions regarding future impacts.11 Instead, it
attempts to discredit EPA's interpretation of the future impacts
regulation, labelling it absolutist. This fusillade misses the
mark. Though an absolutist interpretation, rendering
modifications of secondary treatment requirements for emissions
into stressed waters unobtainable, might well be problematic, we
do not read the Board's opinion in that fashion.
In considering this issue, the Board refused to
presume, absent scientific evidence, that a large quantity of
lightly treated sewage estimated as 850 tons per year would
have no impact on the surrounding stressed waters in the event
that other stresses abated. See Board Op. at 15-16. This
11PRASA does offhandedly suggest that its studies make the requisite showing indirectly. Compliance with (f)(1), PRASA
muses, might in some cases provide a scientific basis for the prediction required by (f)(3). While that may (or may not) be so in theory, it is certainly not so on the facts of this case. Here, PRASA's showing of no current impacts was weak at best, see
infra note 12, and cannot support the weight of the proposed
inference.
neither betokens an absolutist mindset nor forecloses the
possibility that the Board might entertain a presumption of no
future harm if presented with the prospect of more modest
emissions. Nor does the Board's opinion foreclose the
possibility that it might find a scientific showing of no future
impacts to be persuasive. On the contrary, after noting EPA's
"great reluctance" to sanction emissions into stressed waters,
the Board made a point of leaving the door ajar:
This is not to say that there is no case where discharges into stressed waters would be allowed. Where, for example, the receiving waters are stressed by pollutants other than those in the proposed discharge and such pollutants do not contribute to existing stresses, a 301(h) permit may be appropriate.
Id. at 18 & n.22.
To say more would be to paint the lily. We conclude
that EPA did not promulgate an absolutist standard. And,
moreover, we find the Board's rendition of the evidence to be
faithful to the record, its reasoning to be sound, and its
position to be well-supported by authority. Consequently, we
hold that the Board acted within its authority in denying
petitioner an evidentiary hearing and summarily terminating the
administrative appeal on the ground that the studies submitted by
petitioner failed to make any attempt to satisfy the strictures
of 40 C.F.R. 125.61(f)(3).12
12The Board gave an alternative reason for upholding EPA's refusal to convene an evidentiary hearing, ruling that petitioner failed to show that its discharge did not currently "contribute to, increase, or perpetuate . . . stressed conditions." 40
VI. CONCLUSION
We need go no further. PRASA's application for
modification and its concomitant request for an evidentiary
hearing were fairly considered and appropriately rejected. For
the reasons set forth herein, we uphold the agency's final action
and deny PRASA's petition for review.
It is so ordered.
C.F.R. 125.61(f)(1) (1993). We need not pursue this point, for petitioner's failure to adduce hearing-worthy evidence on the future impacts prong is in itself enough to justify denying the instant petition for judicial review. We add in passing, however, that the record strongly suggests the correctness of the Board's conclusion on the current impacts prong as well.