Cook Inletkeeper v. United States Environmental Protection Agency

FILED
NOT FOR PUBLICATION OCT 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
COOK INLETKEEPER; COOK INLET No. 07-72420
FISHERMEN’S FUND; NATIVE
VILLAGE OF NANWALEK; NATIVE EPA No. AKG-31-5000
VILLAGE OF PORT GRAHAM;
UNITED COOK INLET DRIFT
ASSOCIATION, MEMORANDUM *
Petitioners,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent,
XTO ENERGY INC.; UNION OIL
COMPANY OF CALIFORNIA,
Intervenors.
On Petition for Review of an Order of the
Environmental Protection Agcy
Argued and Submitted July 27, 2010
Anchorage, Alaska
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Cook Inletkeeper and four other petitioners challenge the EPA’s grant of a
permit under the National Pollution Discharge Elimination System. The permit
authorizes water pollution caused by the continued operation of natural gas and oil
extraction facilities in Cook Inlet. The EPA has moved for a voluntary partial
remand to address certain of the issues that Cook Inletkeeper raises. Both Cook
Inletkeeper and the intervenors, who operate extraction facilities in Cook Inlet,
oppose that motion. We grant the motion for voluntary remand, subject to certain
reporting requirements. We deny the remainder of Cook Inletkeeper’s petition and
Cook Inletkeeper’s motion to supplement the administrative record.
To define the scope of the record for our review, we first address Cook
Inletkeeper’s motion to supplement the administrative record and for other related
relief. We assume that an “agency properly designated the Administrative Record
absent clear evidence to the contrary.” Bar MK Ranches v. Yuetter, 994 F.2d 735,
740 (10th Cir. 1993). Supplementation of the record is appropriate only if “it
appears the agency has relied on documents or materials not included in the
record.” Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534,
1548 (9th Cir. 1993). The EPA denies that it considered the documents at issue,
and Cook Inletkeeper has not presented clear evidence that the EPA did consider
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those documents. We therefore deny the motion to supplement, along with the
accompanying motion to require preparation of a privilege log.
In the same motion, Cook Inletkeeper requests leave to cite extra-record
evidence. Resolving this request requires us to resolve one of the issues that Cook
Inletkeeper raises in its petition: whether the exclusion of CORMIX results from
the administrative record rendered the issuance of the permit arbitrary and
capricious under 5 U.S.C. § 706(2). It did not. The CORMIX results were used by
the Alaska Department of Environmental Conservation, not the EPA, and were
used in a determination that was the state’s to make, not the EPA’s. See 40 C.F.R.
§§ 122.44, 131.13. The EPA used the output of the state’s process, the sizes of the
mixing zones, in determining whether to issue water-quality-based effluent
limitations. The record contains sufficient information to explain how the EPA
used that output and why it reached its decision. We therefore deny the portion of
the petition that asserts otherwise. And since there is no need to cite extra-record
evidence to determine whether the EPA considered all relevant factors and
explained its decision, we also deny the motion to cite extra-record evidence. See
Camp v. Pitts, 411 U.S. 138, 142 (1973); Lands Council v. Powell, 395 F.3d 1019,
1029–30 (9th Cir. 2005); Pub. Power Council v. Johnson, 674 F.2d 791, 794 (9th
Cir. 1982).
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We turn to the EPA’s motion for voluntary remand, which concedes that the
Alaska Department of Environmental Conservation’s antidegradation finding was
flawed because of a lack of meaningful opportunity for public comment. We agree.
The public-notice requirement is federal, and the EPA is correct that it must be
evaluated by a federal standard. See 33 U.S.C. § 1341(a)(1); City of Tacoma,
Wash. v. FERC, 460 F.3d 53, 68 (D.C. Cir. 2006). Despite the intervenors’
argument to the contrary, the Department’s final certification was not a “logical
outgrowth” of the draft certification. Natural Res. Def. Council v. EPA, 279 F.3d
1180, 1186 (9th Cir. 2002) (internal quotation marks and citation omitted). The
draft contained nothing more than a cursory preliminary finding that any reduction
in natural water quality would be in accord with Alaska’s antidegradation policy.
Only the final certification contained meaningful analysis, so a new notice-and-
comment period “would provide the first opportunity for interested parties to offer
comments that could persuade the agency to modify its rule.” Id. (internal
quotation marks and citation omitted).
The EPA acknowledges that Alaska has not yet fulfilled its obligation under
40 C.F.R. § 131.12 to develop implementation methods for its antidegradation
policy, but suggests that we need not consider this failing because Alaska has
agreed to implement interim methods by September 1, 2010. We acknowledge the
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EPA’s position, but also that of Cook Inletkeeper, which points out that the EPA
urged Alaska to adopt implementation methods more than a decade ago.1 To ensure
that Alaska keeps to its schedule, we order the parties to provide an update
concerning the status of Alaska’s implementation methods within thirty days of
this disposition and every sixty days thereafter. With that condition, we grant the
EPA’s motion for voluntary remand, leaving the permit in place during remand to
avoid the disruptive consequences that would flow from vacating the permit. See
Allied-Signal, Inc. v. U.S. Nuclear Reg. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir.
1993).
We turn to the remainder of the issues set forth in Cook Inletkeeper’s
petition. Cook Inletkeeper argues that the EPA should have imposed technology-
based effluent limitations for certain pollutants that were not considered when the
EPA established effluent-limitations guidelines that used oil and grease as
indicator pollutants instead of issuing specific limitations for specific chemicals.
Cook Inletkeeper did not raise this issue during the comment period, and so it is
waived. See Marathon Oil Co. v. United States, 807 F.2d 759, 767–68 (9th Cir.
1986). Cook Inletkeeper is free to raise its arguments regarding technology-based
1
The remainder of Cook Inletkeeper’s arguments against remand are
speculative; the sufficiency of the process on remand cannot be evaluated until that
process has taken place.
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effluent limitations during the administrative process for the next Cook Inlet
general permit if its concerns persist.
Cook Inletkeeper also asserts that the EPA’s selection of water-quality-based
effluent limitations was arbitrary and capricious, for several reasons that it
describes in Part V of its opening brief and Part III of its reply brief. Cook
Inletkeeper’s arguments may be divided into two parts: those that should have been
presented in a state appeal, and those for which the administrative record provides
an adequate explanation. Concerning the first category, we have explained that
state-agency decisions concerning certification must be challenged in state
proceedings. See Ackels v. EPA, 7 F.3d 862, 867 (9th Cir. 1993); see also 40
C.F.R. § 124.55(e). All of the arguments raised in Part V.B of Cook Inletkeeper’s
brief should have been brought in a state court, if at all. Cook Inletkeeper failed to
make a timely challenge in state court and may not correct that error here.
The administrative record contains adequate explanations concerning the
remainder of the arguments that Cook Inletkeeper raises. We may not second-guess
the agency in light of the rational explanations it provided. See Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983).
Particularly, the methods that the EPA used to calculate estimated maximum
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pollutant concentrations and to employ driver parameters were adequately
explained in the administrative record.
Cook Inletkeeper’s Motion to Supplement the Administrative Record, to
Require Preparation of a Privilege Log, and for Alternative Relief is denied. The
EPA’s Motion for Voluntary Partial Remand is granted, subject to the reporting
requirements described above. The remainder of Cook Inletkeeper’s petition is
denied. This panel retains jurisdiction over this case.
Each party is to bear its own costs.
REMANDED
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