Lake v. EPA ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-60011
Summary Calendar
____________________
TOM LAKE,
Petitioner,
versus
GREGG A. COOKE, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, REGION 6;
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
_________________________________________________________________
Petition for Review of an Action of the
Regional Administrator, Region 6,
Environmental Protection Agency
(33USC1369(b)(1)(d)
_________________________________________________________________
August 22, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Petitioner Tom Lake contests, pro se, the Environmental
Protection Agency’s approval, pursuant to § 402(b) of the Clean
Water Act (CWA), 33 U.S.C. § 1342(b), of the Texas Pollutant
Discharge Elimination System (TPDES), administered by the Texas
Natural Resource Conservation Commission (TNRCC).
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
A State may apply for EPA approval to implement its own
permitting program for discharge of pollutants into navigable
waters within its jurisdiction; the EPA must do so “unless [it]
determines that adequate authority [to administer the program] does
not exist”. CWA § 402(b), 33 U.S.C. § 1342(b).
Texas requested approval of TPDES in February 1998. See State
Program Requirements; Application to Administer the National
Pollutant Discharge Elimination System (NPDES) Program; Texas, 63
Fed. Reg. 33,655 (19 June 1998). As required by CWA § 402(b), the
Texas Attorney General submitted a statement that Texas laws
provide adequate authority to carry out its program, with citations
to, and descriptions of, that authority. Id.
That June, the EPA provided notice of Texas’ application and
requested public comment. Id. Lake was among those commenting.
He claimed the TNRCC rules, referenced by the Attorney General in
the application, are invalid under state law because, inter alia:
TNRCC failed to index the rules to the statutes on which they are
based; and unconstitutionally promulgated the rules.
On 27 July 1998, in accordance with its regulations, 40 C.F.R.
§ 123.1(e), the EPA held a public hearing in Austin, Texas. And,
on 24 September, the EPA Region 6 Administrator signed a notice of
final action approving TPDES. State Program Requirements; Approval
of Application to Administer the National Pollutant Discharge
Elimination System (NPDES) Program; Texas, 63 Fed. Reg. 51,164 (24
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Sept. 1998). Responding to Lake’s comments, the EPA stated that,
because the rules referenced in Texas’ application had not been
adjudged invalid by a court of law and the Texas Attorney General
had vouched for their validity, the EPA could rely on the rules as
meeting the statutory requirements for program approval. Id. at
51188.
Lake asserts the EPA did not provide an adequate explanation
in rejecting his comments, contending § 402(b) requires the EPA to
make an independent determination as to the validity of the
statutory and regulatory authority cited by the Texas Attorney
General, which it neglected to do, for example, by failing to
discover a relevant state court ruling. He also maintains the
EPA’s not including, in its 24 September 1998 published Notice of
Decision, information regarding procedures for appeal of the
decision, does not comport with Congress’ goal of encouraging
public participation, per 33 U.S.C. § 1251(e).
The EPA maintains it did sufficiently explain why it properly
relied on the Texas Attorney General’s certification: in the
absence of judicial invalidation of the state laws necessary to
administer the program, it must defer to the Attorney General’s
interpretation; and in fact, § 402(b) requires it to approve the
program. (It also maintains the state court decision referenced by
Lake did not affect regulations relevant to TPDES.) EPA further
asserts that neither the CWA, nor the EPA’s regulations, require it
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to include notice of the right to judicial review in its final
notice of program approval; and that, in any event, Lake is deemed
to have notice of that right because it is in a statute.
While the parties might appear, on the surface, to disagree as
to the exact nature of our review, we conclude any difference is
merely semantical: Lake and the EPA correctly point to the
Administrative Procedure Act, 5 U.S.C. § 706(2), as the governing
standard. Pursuant to its deferential standard, we must “set aside
agency action” which is, inter alia, “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law”. 5
U.S.C. § 706(2)(A); Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 933
(5th Cir. 1998). “The fundamental precept that permits this
deferential standard of review is that ‘an agency must cogently
explain why it has exercised its discretion in a given manner.’”
Sea Robin Pipeline Co. v. FERC, 127 F.3d 365, 369 (5th Cir. 1997),
reh’g & suggestion for reh’g en banc denied, No. 96-60536 (2 Feb.
1998) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S.
29, 48, 57 (1983)).
For starters, we reject Lake’s contention that the EPA’s
published responses to his comments were legally inadequate. The
EPA “cogently explained” that it relied on the Texas Attorney
General’s certification of authority because that authority had not
been invalidated by a court of law. We likewise agree with the EPA
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that it was not statutorily required to include, in its Notice of
Decision, information regarding the right to judicial review.
Lake’s central concern seems to be whether, in the light of
his comments, the EPA’s review of TPDES was legally adequate. It
was. The EPA was required to defer to, and entitled to rely upon,
the Attorney General’s interpretation of Texas law, in the absence
of evidence such law had been ruled unconstitutional or repealed by
the Texas Legislature. See American Forest & Paper Ass’n v. EPA,
137 F.3d 291, 294 (5th Cir. 1998).
Accordingly, the petition for review is
DENIED.
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