ELR Citation: ELR 20396
No(s). 94-1074 (1st Cir. Oct 25, 1994)

The court upholds the U.S. Environmental Protection Agency's (EPA's) issuance of a national pollutant discharge elimination system permit allowing the discharge of effluent from a town's proposed municipal wastewater treatment facility, and denies a neighboring landowner's petition for review of the permit. Under EPA's Ocean Discharge Criteria (ODC), the Agency will not issue a permit where it determines that the discharge will cause unreasonable degradation of the marine environment. Here, EPA relied on New Hampshire's certification that the degradation that the facility would cause was consistent with the state's water quality standards. The certification also provided for coliform limits to protect the public health and provide for the protection and propagation of fish, shellfish, and other aquatic organisms and wildlife. The court first holds that the evidence does not support the EPA Environmental Appeals Board's (EAB's) determination that the landowner failed to raise properly his concerns regarding EPA's compliance with the ODC during the public comment period, and the decision lacked a rational basis. The landowner and other participants in the public comment period for the permit submitted statements that satisfied the threshold requirement of materiality by alerting EPA to their concern that EPA had not adequately complied with the mandates of the ODC when it issued the draft permit to the facility. The landowner specifically referred to the ODC with his references to the public laws, and his written comments indicate that he challenged the design and location of the outfall, the accuracy of the information presented by the town engineers regarding the outfall, and the correctness of the dilution calculations.

Turning to the adequacy of the landowner's request for an evidentiary hearing, the court holds that EPA did not act arbitrarily or capriciously in finding that the landowner's challenges to the outfall design and location, the effluent dilution calculations, and the shellfish closure zone failed to present a genuine issue of material fact showing that EPA was not entitled to rely on the regulatory presumption that discharges in compliance with state water quality standards do not cause unreasonable degradation of the marine environment. The court first holds that the landowner's evidentiary request is completely bereft of any references to facts in the record that would create a genuine issue that a discharge from the planned outfall location would cause unreasonable degradation of the marine environment. The court holds that the landowner's conclusory opinion that the outfall, as designed, was not in the best interest of the town or the United States because it was not in anyone's interest to have people swimming in sewage is not sufficient to warrant a formal evidentiary hearing. The landowner failed to point to any evidence showing that the proposed discharge from the outfall would cause the loss of any recreational value, much less evidence that would indicate that there was a genuine factual dispute that such a loss would be unreasonable in relation to the benefits to be derived from the discharge. Regarding the landowner's contention that EPA improperly calculated the effluent dilution limits, and thus failed to consider properly the effect of viruses on marine life and humans, the court holds that EPA did not act arbitrarily or capriciously when it found that the landowner failed to show why EPA's reliance on the state certification was inadequate. The landowner failed to point to data in the record that established that the proposed discharge would cause unreasonable degradation of the marine environment by threatening human health through the presence of viruses. Nor did the landowner point to any evidence from which a decisionmaker could find that the state failed to evaluate properly the discharge's effect on human health because it did not require effluent limits for viruses. The court holds that EPA's finding that the landowner did not raise a genuine issue of material fact regarding the dilution limits by referring to a U.S. Food and Drug Administration letter that called for the establishment of a larger safety zone closed for shellfishing was not arbitrary or capricious. The landowner did not point to anything in the letter that called into question the state's mandated coliform limits. Rather, he claimed that EPA originally miscalculated the dilution limits, but he then failed to show what the effects of the alleged miscalculation were, or how it affected the state certification process. The court next holds that EPA did not act arbitrarily or capriciously in denying the landowner's request for an evidentiary hearing based on his claim that the planned closure to shellfishing of a small area around the outfall was contrary to New Hampshire law. The claim represents a disagreement with the state's ultimate legal conclusion that the discharge from the plant would be lawful under specific provisions of state law, and the landowner failed to indicate what specific provision of law the state ignored or ill-considered, and failed to point to any evidence showing that a provision of state law was, in fact, violated. Further, he failed to point to any facts that showed that the closure zone would cause a loss of any recreational or economic value, much less that such an alleged loss would be unreasonable in relation to associated benefits.

Counsel for Petitioner
Richard A. Kanoff
99 Summer St., Boston MA 02110
(617) 330-1717

Counsel for Respondent
Eileen T. McDonough
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit Judges.