Jul 16: In the U.S. Court of Appeals, First Circuit, Case No. 09-1879. The City of Pittsfield, Massachusetts asks the Appeals Court to consider whether EPA's Environmental Appeals Board (EAB) improperly declined Pittsfield's petition seeking the Board's review of EPA's grant of a National Pollutant Discharge Elimination System (NPDES) permit for the Pittsfield Wastewater Treatment Plant. Pittsfield sought changes to the terms of the permit, which was issued pursuant to section 402 of the Clean Water Act (CWA). The EAB held that Pittsfield had procedurally defaulted because its petition failed to identify its specific objections to the permit or to articulate why the Board should assume jurisdiction. The Appeals Court said, "We conclude that the Board did not abuse its discretion in so holding, and we therefore affirm its denial of Pittsfield's petition."
Monday, July 19, 2010
In its argument, the City attempted to convince the Appeals Court that it should use a standard and interpretation adopted in a case involving the Federal Aviation Administration. However, the Appeals Court said, "We decline the invitation, as the city's interpretation would import a standard of review that is not relevant here. As we have noted . . . the proper standard of review in determining whether the EAB properly denied Pittsfield's appeal petition based on its conclusion that the city had procedurally defaulted on its claim is whether its ruling was 'arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law' under § 706(2)(A) of the APA. [citing] Mich. Dep't of Envtl. Quality, 318 F.3d at 707].]
The Appeals Court said further that the City's reliance on Penobscot Air Services, Ltd. v. FAA "suggest that our standard of review should be otherwise is misplaced. Penobscot Air Services, Ltd. did not involve possible procedural default, but rather a review on the merits of the Federal Aviation Administration's disposition of the petitioner's appeal. In setting forth our standard of review in that case, we noted that the statute in question, the Federal Aviation Act, contained a specific provision directing us to review the FAA's findings of fact to determine if they were 'supported by substantial evidence' . . .Because the Federal Aviation Act was silent as to the standard for reviewing nonfactual matters, we determined that the applicable standard of review for such matters was dictated by the Administrative Procedure Act. In particular, we stated that the APA's 'arbitrary and capricious standard' applied to the review of agency decisions. . .
"The CWA, unlike the Federal Aviation Act, does not provide for its own substantial evidence test. Moreover, even if the substantial evidence standard generally applies to EAB factfinding, there is no need to employ it here. The EAB did not find
any facts in this case -- nor did it have to -- because its decision to deny review was supported by an adequate and independent procedural ground."
Access the complete opinion (click here).
Posted by WIMS at 4:15 PM