ELR Citation: ELR 20555
No(s). 93-2340 (1st Cir. Aug 31, 1994)

The court holds that the Environmental Appeals Board (EAB) committed no procedural or substantive error in refusing to grant a publicly owned treatment works' (POTW's) request for an evidentiary hearing to challenge the requirement that it meet secondary treatment levels under the Federal Water Pollution Control Act. The court first holds that the EAB properly looked to Fed. R. Civ. P. 56(c) in construing the EAB's standard for dispensing evidentiary hearings, 40 C.F.R. §124.75(a)(1). Section 124.75(a)(1)'s "material issues of fact relevant to the issuance of the permit" standard achieves the same result as Fed. R. Civ. P. 56(c)'s "no genuine issue as to any material fact" standard. In practice, the court notes, courts and agencies regularly use a variety of terms to describe the binary requirements of materiality and genuineness. Moreover, explicitly drawing a connection to Fed. R. Civ. P. 56 provides a common vocabulary that is easily understandable by litigants, lawyers, and adjudicators; introduces into the Agency's jurisprudence a ready-made ensemble of decisional precedents associated with Rule 56; and carries with it certain expectations, conditioned by everyday experience in the federal courts, about the kind of degree of evidence deemed necessary to create a genuine dispute over a material fact. The court holds that due process 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. It follows that administrative summary judgment, properly configured, is an acceptable procedural device. The court also holds that the jurisprudence that has grown up around Fed. R. Civ. P. 56 is the most fertile source of information about administrative summary judgment because Rule 56 is the prototype for administrative summary judgment procedures.

The court next holds that the EAB's use of Rule 56 is consistent both with its prior practice and with prevalent understandings of administrative summary judgment and falls well within the range of unspoken principles that appropriately may be announced in the course of rendering an adjudicative determination. Although the EAB never before has made the equation between Rule 56 and the EAB's summary judgment procedure so explicit, it traditionally has equated its procedural standard for denial of an evidentiary hearing about a permit with the Rule 56 yardstick. Any reasonable litigant familiar with administrative practice in general and with the EAB'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. Finally, the court holds that the EAB acted within its authority in denying the petitioner an evidentiary hearing and summarily terminating the administrative appeal on the ground that the studies submitted by the petitioner, including a U.S. Geological Survey report, failed to make any attempt to show that the POTW's emissions would not retard the recovery of biota or water quality if the level of human perturbation from other sources decreases, as required by 40 C.F.R. §125.61(f)(3).

[The complaint in related litigation is digested at ELR PEND. LIT. 66347.]

Counsel for Petitioner
Neil T. Proto, Lisa K. Hsiao
Verner, Liipfert, Bernhard, McPherson & Hand
901 15th St. NW, Washington DC 20005
(202) 371-6000

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

Before SELYA and CYR, Circuit Judges, and PETTINE,^* Senior District Judge.