USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2359
PUERTO RICO SUN OIL COMPANY,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
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____________________
Robert Brager with whom Richard S. Davis, Joseph C. Stanko, Jr.,
_____________ _________________ ______________________
Patricia Ross McCubbin, Beveridge & Diamond, P.C., Leonardo Andrade-
_______________________ __________________________ _________________
Lugo, Jose A. Cepeda-Rodriguez, Carlos A. Rodriguez-Vidal, Eli Matos-
____ ________________________ _________________________ __________
Alicea, Goldman Antonetti Cordova & Axtmayer and Edward J. Ciechon Jr.
______ ____________________________________ _____________________
were on brief for petitioner.
Alan D. Greenberg, Environment & Natural Resources Division,
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Environmental Defense Section, Department of Justice, with whom Myles
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E. Flint, Acting Assistant Attorney General, Randolph L. Hill and
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Meyer Scolnick, Assistant Regional Counsel, Environmental Protection
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Agency, were on brief for respondent.
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October 21, 1993
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BOUDIN, Circuit Judge. In August 1990, the
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Environmental Protection Agency issued a pollution discharge
permit to Puerto Rico Sun Oil Company ("the Company"). In
doing so EPA complied with the substantive requirements of
the governing statute and the procedures set forth in the
statute and EPA regulations. Only the result gives cause for
concern, and that concern is not allayed by the agency's
explanation for its decision. In our judgment, the result is
so odd that either the EPA has abused its discretion or it
has explained itself so poorly as to require further
justification. On either view, we must vacate the agency's
order adopting the permit and remand for further proceedings.
I. THE FACTS
I. THE FACTS
The Clean Water Act, 33 U.S.C. 1251, et seq.,
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prohibits the discharge into protected waters of any
pollutant by any person, id. 1311(a), unless a discharge
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permit has been secured from EPA. Id. 1342. The
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permitting regime is a hybrid one in which both EPA and the
counterpart state agency play a role. The precise role
depends on whether EPA has delegated permit issuing authority
to the state; but no such delegation is present here. Puerto
Rico is treated as a state for purposes of the Clean Water
Act, id. 1362(3), and its local agency is the Environmental
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Quality Board ("EQB").
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To obtain a permit, the applicant must satisfy a variety
of substantive requirements under the Clean Water Act but, in
addition, no EPA permit can issue unless the state in which
the discharge will occur gives its own approval (called
"certification") or waives its right to do so. 33 U.S.C.
1341(a)(1). Further, the state certification may impose
discharge limitations or requirements more stringent than
federal law requires, and those more stringent obligations
are incorporated into the federal permit as a matter of
course. See generally United States v. Marathon Development
_____________ _____________ ____________________
Corp., 867 F.2d 96, 99 (1st Cir. 1989) (describing state
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role). What lies at the heart of this case is EQB's effort
to impose, and then back away from, such more stringent
obligations.
For some years before this case began, the Company held
a discharge permit for its oil refining facility at Yabucoa
Bay, Puerto Rico, where it discharges pollutants from two
different sources. On May 27, 1988, the Company submitted to
EPA an application to renew the permit for its facility. On
October 31, 1988, EPA forwarded the application to EQB,
requesting that a draft certification be prepared promptly.
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EPA also warned EQB that under EPA regulations, Puerto Rico's
right to impose obligations by certification would be waived
if a final certification were not received within 60 days
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after EPA sent a copy of a (yet to be prepared) draft permit
to EQB. 40 C.F.R. 124.53(c)(3) (60 day time limit).1
On January 25, 1989, EQB released a tentative
certification--essentially a draft document that facilitates
public comment on the proposed state certification and
proposed federal permit. The draft certification in this
case probably came as a surprise to the Company. The earlier
permit had employed a "mixing zone" analysis in setting the
pollution limitations for the Company's discharged effluent;
the draft certificate did not include a mixing zone analysis.
The difference, which is central to this case, needs a word
of explanation.
A discharge permit under the Clean Water Act may include
several types of requirements. One set concerns the
technology used to limit pollution; another, pertinent here,
requires that the amount of specified pollutants not exceed
certain percentage levels. In theory, the percentage levels
could be measured in the effluent itself--such as storm
runoff or waste water--just as it drains into the stream,
river or bay which is protected by the Clean Water Act;
alternatively, it could be measured at the edge of a defined
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1The Clean Water Act provides that the state waives its
certification rights if it fails to issue or to deny a
certification "within a reasonable period of time (which
shall not exceed one year) after receipt of such request . .
. ." 33 U.S.C. 1341(a(1).
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area of the receiving body of water after the pollutant has
been diluted by that water.
Such a defined area is called a mixing zone, and it
appears that measuring pollutants at the edge of the mixing
zone is widespread in the application of the Clean Water Act.
According to an EPA publication, "[w]hether to establish such
a mixing zone policy is a matter of State discretion." EPA,
Mixing Zones--Water Quality Standards Criteria Summaries: A
_____________________________________________________________
Compilation of State/Federal Criteria 2 (September 1988)
________________________________________
("Mixing Zones"). Practically every state and Puerto Rico
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have adopted mixing zone criteria, id., although the criteria
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appear to differ widely. Id. at 70-78 (Puerto Rico criteria
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as of 1988). The mixing zone concept is described in
Marathon Oil Co. v. EPA, 830 F.2d 1346, 1349 (5th Cir. 1987),
________________ ___
which concludes with the observation that "the `mixing zone'
determination is basically a cost-benefit judgment on a given
set of environmental facts, rather than any sort of
`scientific' determination." Id. at 1351.
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When in January 1989 EQB issued its draft certification
for the Company's requested permit, the EQB was reformulating
its mixing zone criteria. EQB's draft certification for the
Company neither continued in force the old mixing zone
criteria temporarily nor made the certificate subject to the
new criteria still under development. Instead, the draft
certification simply set further pollutant limitations which,
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absent the mixing zone analysis, apply directly to the
effluent as it enters the receiving waters. Mixing Zones,
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supra, at 2 ("If no such mixing zone is recognized by a
_____
State, then the waters must meet the criteria at the point of
discharge.").
The next event was EPA's release on August 11, 1989, of
a draft permit and request for public comment. The draft
permit incorporated the requirements of the draft
certification issued by EQB and therefore used no mixing zone
analysis. Although issuance of the draft permit meant that
final EQB certification was now due in 60 days, 40 C.F.R.
124.53(c)(2), EQB apparently paid no attention to the
deadline or to EPA's earlier warning that failure to meet the
deadline would waive Puerto Rico's right to certify.
Nevertheless, in October 1989 EPA told the Company's
attorneys that it was extending the comment period on the
draft permit "indefinitely" while awaiting the EQB's final
certification. When the certification arrived, said EPA, it
would set a "prompt" close to the comment period.
On July 24, 1990, almost a year after receiving the
draft permit, EQB issued what it called its "final" water
quality certification for the Company, again eschewing a
mixing zone analysis. Both the timing and substance of this
action are puzzling because, only four days before, on July
20, 1990, EQB had promulgated new regulations to be effective
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on August 20, 1990, adopting a new method of determining
mixing zones. But if EQB's behavior was slothful and
careless, EPA's reaction was even stranger.
At this point the EQB's final certification must have
appeared a probable candidate for administrative or judicial
revision in Puerto Rico. EQB had used a mixing zone analysis
in the past and was proposing to do so in the future, and the
use of such an analysis was likely to be significant; indeed,
the Company later represented, and EPA has not disputed the
claim, that its refinery cannot operate if forced to meet the
pollution standards without the help of a mixing zone
analysis. Yet just as the Company moved to correct the EQB
certification, EPA moved even more swiftly to adopt a final
permit based on the EQB certificate that omitted a mixing
zone analysis.
The chronology can be compressed. On August 17, 1990,
the Company asked EQB to reconsider its certification and
include a mixing zone analysis. On August 21, 1990, EPA
published a new draft permit incorporating EQB's final
certification requirements, and it offered 30 days to submit
comments. On September 7, 1990, EQB wrote to EPA saying that
it was evaluating the Company's comments on reconsideration
and that it might alter its certification. On September 10
and on September 21, 1990, the Company asked EPA to delay
action on the permit to allow the EQB to complete its
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reconsideration. On September 28, 1990, EPA issued a final
permit, based on the then July 1990 EQB certification and
without provision for a mixing zone.
On November 7, 1990, the Company sought administrative
review within EPA, an action that automatically stayed the
new permit, 40 C.F.R. 124.15(b)(2), and left the old one in
force on a temporary basis. On November 28, 1990, EQB
adopted a resolution staying its certification pending
reconsideration and announcing, for the benefit of EPA, that
the certificate was "not to become final" until the
reconsideration was completed. In February 1991, EQB wrote
formally to EPA stating that the certificate should be
treated as not final and urging EPA to leave the Company's
previous permit in effect for the time being. In June 1992
EPA's regional administrator issued a decision reaffirming
the new permit without a mixing zone provision but continuing
the stay of the new permit pending a further administrative
appeal.
In July 1992, the Company duly appealed the regional
administrator's decision to EPA's Environmental Appeals
Board, urging a number of the arguments discussed below, and
making one further contention of note: the Company said that
unless EPA modified the permit on direct review, the Company
would likely be unable get the mixing zone analysis
incorporated into the permit through subsequent proceedings.
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The reason, said the Company, was "the probable application
of the anti-backsliding policy" of the Clean Water Act, 33
U.S.C. 1342(o). On October 26, 1992, the EPA Environmental
Appeals Board issued a lengthy decision refusing further
review. The Company's appeal to this court followed. 33
U.S.C. 1369(b)(1)(F).
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II. DISCUSSION
II. DISCUSSION
Faced with what may be a disastrous outcome from its
standpoint, the Company has offered this court a variety of
procedural challenges to EPA. They range from a broad claim
that EQB's final certification was ineffective (because
Puerto Rico's time to certify had expired) to a trivial
complaint that the EPA did not allow a 15-day extension to
the comment period at one phase of the proceeding. We think
virtually all of the procedural claims fail and, while
addressing them at the close of the opinion, we prefer to
begin by discussing EPA's central error.
EPA's action in adopting the permit in this case is not
flawed by procedural mistake. On the contrary, EPA did a
commendable job of dotting i's and crossing t's. Nor is
there any violation of substantive provisions of the Clean
Water Act; for example, nothing in that statute explicitly
requires EPA to use mixing zone analyses in its permits. The
problem with EPA's decision is simply that the outcome
appears on its face to make no sense. We say "appears"
because we cannot rule out the possibility that some further
explanation could shore up the EPA's result. Either way, the
EPA's present action cannot stand.
It may come as a surprise that agency decisions must
make sense to reviewing courts. Agencies, after all, are
normally entitled to substantial deference so long as their
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decisions do not collide directly with substantive statutory
commands and so long as procedural corners are squarely
turned. This deference is especially marked in technical
areas. But in the end an agency decision must also be
rational--technically speaking, it must not be "arbitrary or
capricious," Administrative Procedure Act, 5 U.S.C.
706(2)(A)--and that requirement exists even in technical
areas of regulation. E.g., Public Citizens Health Research
____ ________________________________
Group, v. Tyson, 796 F.2d 1479, 1505 (D.C. Cir. 1986). The
_____ _____
requirement is not very hard to meet, but it has not been met
here.
The "arbitrary and capricious" concept, needless to say,
is not easy to encapsulate in a single list of rubrics
because it embraces a myriad of possible faults and depends
heavily upon the circumstances of the case. Still, there are
rules of thumb, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm
____ _________________________ __________
Mutual Ins. Co., 463 U.S. 29, 43 (1983) (listing examples).
_______________
In addressing individual aspects of EPA's decision, we cite
to those requirements--discussion of relevant issues,
consistency with past practice, avoidance of unexplained
discrimination--that are pertinent to EPA's decision in this
case.
On the surface of the administrative record, the
following scene presents itself. EQB, having used a mixing
zone analysis in past cases, neglected to include such a
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provision in its latest certification for this facility. EQB
had previously used a mixing zone analysis for this very
facility; and far from abandoning the concept, EQB was in the
process of revising its regulations to prescribe such an
analysis at the very time it was preparing the Company's
certification. Four days before it issued the final
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certification in this case, omitting a mixing zone provision,
it formally promulgated its new mixing zone regulations.
It is not clear whether in August 1990 EPA appreciated
that EQB had probably misstepped. The Company's brief
implies that the EPA, having obtained EQB's final
certification, then proceeded with sinister speed--surely a
rare accusation in administrative law--to mousetrap the
Company by issuing a final permit before EQB's certification
could be revised. An alternative explanation, to us entirely
plausible, is that the EPA's patience with EQB had been
exhausted and it wanted, as it had warned almost a year
before, simply to get done with the permit as soon as it had
EQB's final certification.
However this may be, both the Company and EQB made clear
to the EPA at once, and before the final permit issued, that
reconsideration was under way. EPA published its new draft
permit for comment in August 1990; and in September 1990,
before the EPA issued the final permit on September 28, 1990,
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EQB advised EPA (on September 7) that it was reconsidering
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its certification and might alter it, and the Company wrote
letters (on September 10 and 21) begging the EPA to defer
final action until the EQB acted. The EPA nevertheless
proceeded to issue the final permit with no explanation for
its refusal to wait.
Even at this stage, it appears that EPA was free to
correct the problem on administrative review. There being no
fixed timetable, the regional administrator presumably had
discretion to defer action until EQB acted on the Company's
reconsideration request and, if a mixing zone analysis were
adopted by EQB in a revised certification, then to
incorporate this revision into the new permit. One of EPA's
regulations, 40 C.F.R. 124.55(b), which is discussed below,
seems to contemplate just such a situation. During this same
period EQB made crystal clear, by its resolution of November
28, 1990, and its formal letter of February 25, 1991, that it
was planning to reexamine its certification and did not want
the certification treated as final. Once again, EPA
proceeded to reject the pleas and reaffirm the permit, sans
mixing zone.
EPA has now explained its position at least three times
administratively and for a fourth time in this court. Each
time EPA deals deftly with the Company's procedural
objections by showing why some regulation allowed EPA to
await EQB's final certification, but to refuse to await EQB's
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attempt to repair the certification, and allowed EPA to adopt
EQB's certification, but to reject EQB's retroactive attempt
to brand it as non-final. The only thing that is missing,
among this array of finely wrought explanations, is any
reason why the EPA should want to frustrate the EQB's clumsy,
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long-delayed but increasingly evident desire to reconsider a
mixing zone analysis for this permit.
Assuredly, some explanation is called for. The mixing
zone analysis is not some freakish idea or whim of the Puerto
Rico authorities. According to EPA's Mixing Zones
_____________
publication, it is available for use in at least 49 states in
varying situations; and the Company said that the refinery in
question cannot operate if the permit limitations are
applied, without a mixing zone analysis, at the point that
the effluent enters the water. Patently, these
considerations of history and practical effect would, in a
rational decision, warrant at least some discussion. Motor
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Vehicle Mfrs. Ass'n, 463 U.S. at 43 (agency may not "entirely
___________________
fail[] to consider an important aspect of the problem").
At oral argument, we inquired of counsel representing
the EPA whether there were other situations in which EPA had
refused to use a mixing zone analysis despite a state's
desire that such an analysis be used. Yes, we were told,
counsel for EPA knew of several such instances. On rebuttal,
the Company's counsel responded that there were indeed other
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instances but they were limited to EPA's issuance of permits
in Puerto Rico, in the same time frame as this case and to
other applicants whose situations paralleled that of the
Company. If this is the situation (counsel for EPA made no
later effort to respond), then EPA's current posture is in
some measure at odds with precedent. Cf. Atchison, T &
___ ________ ___
S.F.R.R. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973)
________ _____________________
("departure from prior norms" must be explained).
The point is not that EPA has some overriding obligation
under the Clean Water Act to do whatever it is that the state
wants to do. On the contrary, EPA was entirely free, once
Puerto Rico had ignored the clear deadlines for a final
certification, to treat the Commonwealth as an interested
bystander with no further veto authority. What is beyond
explanation, or at least wholly unexplained, is why EPA
should be intent on adopting half of what the Commonwealth
wanted while systematically frustrating its attempt to secure
the other half. The obligation, we repeat, is not one of
deference to local authorities but of making sense.
There is also in this case an element of apparent
irrational discrimination. See, e.g., Green Country
___ ____ ______________
Mobilephone, Inc. v. FCC, 765 F.2d 235 (D.C. Cir. 1985)
__________________ ___
(obligation to treat similar cases similarly). For all that
appears, similarly situated facilities in Puerto Rico, if
permitted for the first time next year, are likely to receive
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permits including a mixing zone analysis. Like facilities in
other states, permitted in September 1990 at the same time as
the Company, probably received the benefit of mixing zone
analyses. Only Puerto Rican facilities that happened to be
permitted or re-permitted in this strange "window," during
which EQB was reformulating its mixing zone criteria, are
left out in the cold--possibly forever if the anti-
backsliding provisions apply.2
Perhaps there is some explanation for EPA's action other
than a mechanical desire to reach a rapid conclusion without
regard to whether the result is sound. Indeed, we suspect
that there is an explanation. As noted, the Company
insinuates that EPA deliberately took advantage of EQB's
carelessness to mousetrap the Company into standards that
could not later be relaxed because of the anti-backsliding
provisions previously mentioned. Such a result would at
least explain what happened, although it is doubtful that the
explanation, if adopted by EPA, would commend itself to a
reviewing court.
Or, there may be more benign reasons for EPA's action.
Perhaps the Company's science is faulty and very slight
adjustments in technology would permit it to meet the
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2Needless to say, we do not know whether the anti-
backsliding provisions would produce this result. The
provisions are complicated and contain certain exceptions.
33 U.S.C. 1342(o). The Company's prediction is qualified,
and EPA's brief is silent on this issue.
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pollution limitations, and improve the environment to boot,
without any mixing zone analysis. In all events, until EPA
emerges from its fortress of procedural-rule citations and
adopts a rationale for its action, any speculations are
beside the point: the agency's decision cannot be supported
on reasoning that the agency has not yet adopted. See SEC v.
___ ___
Chenery Corp., 332 U.S. 194, 196 (1947).
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We turn now to the Company's other arguments on appeal
because some of them, if adopted, would alter the terms of
the remand. The main thrust of the Company's various
arguments is that, for various procedural reasons, EPA was
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not entitled to rely on the EQB certification. On this
premise, the Company argues that EPA was required to
formulate its own permit standards based upon the real
requirements of Puerto Rico law, which the Company believes
requires the use of a mixing zone analysis. Since we reject
the Company's premise of procedural error, the further steps
in the Company's argument need not concern us.
The Company's broadest procedural argument is that
Puerto Rico's final certification came too late and therefore
could not furnish the basis for EPA's own final permit. As
already noted, the Clean Water Act required Puerto Rico to
provide its certificate, or announce a decision not to
certify, within a reasonable time not to exceed one year
after the application, 33 U.S.C. 1341(a)(1); and by
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regulation EPA required a certification decision within 60
days of the issuance of a draft permit. 40 C.F.R.
124.53(c)(3). Here, EQB apparently ignored both time limits,
failing both to meet the statutory one-year deadline and the
regulation-based 60-day deadline.
Under the statute and the regulation, the price of
failing to meet the deadlines is that the state agency waives
its right to dictate permit terms that go beyond what EPA
would do on its own. Based on this waiver language, the
Company argues that a state certification issued after the
deadline is without legal effect. In reply EPA says it is
free either to declare a waiver or, instead, to follow the
course taken in this case and await the final, though
belated, certification. The statute itself merely provides
that the state must act within a reasonable period, not to
exceed a year, or the certification requirement will be
deemed "waived." 33 U.S.C. 1341(a)(1).
Although we are provided no useful precedent or
legislative history, our reading of the statute largely
coincides with that of EPA. The statutory time limit and the
word "waived" do not tell us the answer; Congress could have
meant that a state certification issued after the deadline
had to be ignored by EPA, or it could have meant only that
EPA was free to do so. EPA interprets the statute to mean
the latter and under the Chevron doctrine, Chevron U.S.A.,
_______ _______________
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Inc. v. NRDC, 467 U.S. 837 (1984), its view is entitled to
____ ____
weight. State of California v. FERC, 966 F.2d 1541 (9th Cir.
___________________ ____
1992), cited by the Company as holding that the deadline
cannot be waived, holds no such thing.3
Further, EPA's reading both of the statute and its
regulation seems to us a sensibly flexible one. EPA's
reading gives it the practical benefit of the state process
even if that benefit comes a little late. Indeed, where no
one complains (e.g., because the applicant is happy to
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operate under an earlier permit), it could be pointlessly
rigid to insist that EPA begin its own calculations the
moment the certification deadline expires for the state. The
concern on the other side is that without a deadline, a new
applicant could be left dangling forever. But we think the
courts have adequate power to assure that flexibility does
not become an excuse for permanent inaction.4
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3EPA's interpretation of its own 60-day regulation is
even more compelling since it wrote the regulation.
Gardebring v. Jenkins, 485 U.S. 415, 430 (1988) In addition,
__________ _______
agencies can usually (although not always) waive their own
procedural regulations even where there is no express
provision for waiver. American Farm Lines v. Black Ball
____________________ __________
Freight Service, 397 U.S. 532, 538 (1970).
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4See Administrative Procedure Act, 5 U.S.C. 706(1)
___
(power to compel agency action unduly delayed). The courts
are normally deferential to the agency in such cases. See,
___
e.g., Telecommunications Research & Action Center v. FCC, 750
____ ___________________________________________ ___
F.2d 70 (D.C. Cir. 1984). Here, however, Congress has
expressed its intent that the state proceeding be completed
in a year. If EPA wants to waive the state's failure to meet
a deadline, and wait longer for its certification, we think
that the propriety of its deferral might be open to judicial
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The Company's remaining arguments require less
discussion. The claim that EQB's certification was not final
when EPA adopted it is unpersuasive. "Finality" is a concept
with several shades of meaning in administrative law; but
where, as here, the agency itself (rather than a subordinate
body) has spoken and has explicitly labeled its action
"final," we think that is enough, even though the agency may
choose to reconsider or may be reversed on judicial review.
The Company failed to get a stay of the EQB certification
before EPA acted in reliance upon it. We agree with EPA that
the subsequent decision of EQB to re-characterize its
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certification order as non-final cannot affect the procedural
validity of EPA's decision to grant the permit.
In fact, EPA has regulations that govern the effect of a
state stay or modification of a certification after a permit
has issued. The pertinent regulation permits EPA's regional
administrator under certain circumstances to incorporate the
modifications into the permit so long as the state agency
stays or modifies the old certificate and forwards a new one
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to EPA as a substitute. 40 C.F.R. 124.55(b). But this
regulation does not apply in this case because EQB never sent
a substitute certificate to the EPA.
The Company relies upon a different EPA regulation, 40
C.F.R. 122.44(d)(3). This provides in part that if a state
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review that is somewhat more searching than customary.
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court or board stays a certification, EPA shall notify the
state that certification will be deemed waived unless a
finally effective certificate is issued within 60 days;
absent such a new certification, the regulation says that EPA
shall impose its own requirements in the permit. In
agreement with EPA, we read this regulation to apply only to
stays that occur before EPA has issued its own permit. Once
again, the agency's reading of its own regulation is entitled
to deference. Gardebring, 485 U.S. at 430. Its reading also
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has the benefit of making this regulation, governing pre-
permit stays, dovetail with section 124.55(b), governing
post-permit stays.
In an attempt to bolster the importance of the EQB stay,
the Company reminds us of the central role that the states
were intended to play under the Clean Water Act. Yet that
role is to be played within the framework of the procedures
fixed by the statute and EPA regulations. Indeed, precisely
because two different jurisdictions are expected to
collaborate on a permit, there is a special need for
compliance with the rules of the road. Here, the EQB stay
came after the permit and--strictly from a procedural
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standpoint--EPA was entitled to disregard it, unless and
until EPA's regulation governing a post-permit stay was
satisfied.
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In summing up, we stress again that the flaw in EPA's
action is not a procedural defect. EPA's result is
irrational, or at least inadequately explained, not because
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of EQB's hapless stay, but because of the substance of the
EPA's permitting decision. To restate the gist of the
matter, EPA has failed to explain why it makes sense, as a
matter of substantive policy, to frustrate Puerto Rico's
incipient desire to use the mixing zone analysis, and why
those companies who fall in this "window" between Puerto
Rico's old and new regulations should alone be denied the
benefits of a mixing analysis. Those concerns would be
virtually the same even if EQB had never used the word
"stay."5
III. CONCLUSION
III. CONCLUSION
In framing the remand, we begin by emphasizing what we
have not decided. Whether the final certification issued by
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the EQB in August 1989 is vulnerable to attack under Puerto
Rican law, if not altered by EQB on reconsideration, is an
issue not before this court. Although state certification
provisions are incorporated into federal permits, review of a
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5We have not discussed the Company's separate claim that
EPA abused its discretion by not extending the comment period
for 15 days, as requested by the Company, to permit more time
for comment on technical issues. This argument, summarily
stated in a paragraph at the end of the Company's brief, is
not seriously supported and is therefore not preserved for
review. United States v. Zannino, 895 F.2d 1, 27 (1st Cir.),
_____________ _______
cert. denied, 494 U.S. 1082 (1990).
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state certification is a matter for local courts. Roosevelt
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Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, (1st Cir.
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1982). The apparent past and future inclination of EQB to
employ mixing zone analyses is part of the background of this
case, but nothing we have said should be taken to declare the
law of Puerto Rico on this subject.
Similarly, we do not suggest that mixing zone analysis
has a sacrosanct role under the Clean Water Act. Our
impression from EPA's own publication is that the use of such
analysis is widespread. But that impression is subject to
correction. In any event, sound reasons may dictate that a
mixing zone analysis not be used in certain cases or certain
classes of cases, despite a possible hint to the contrary in
Marathon Oil Co., 830 F.2d at 1349 ("By definition, the
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effluent itself does not meet water quality standards;
otherwise, it would not be considered polluted."). There may
even be reasons why, apart from EQB's procedural default, a
mixing zone analysis is improper in this case.
All that we hold here is that EPA's decision to issue a
permit in September 1990, adopting EQB's certification but
refusing to await EQB's decision on reconsideration, produces
a result that on the present record appears manifestly
arbitrary and capricious. If legitimate reasons exist for
such an outcome, then EPA is free to provide them and re-
adopt the present permit (and the Company in turn is free to
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challenge those reasons and that action by petitioning again
for judicial review). EPA, EQB, and the Company may find it
possible to chart a more constructive course and make further
litigation unnecessary.
The EPA order adopting the permit at issue in this case
is vacated and the matter is remanded to EPA for further
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proceedings in accordance with this opinion. Costs are taxed
in favor of the petitioner.
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