USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2359
PUERTO RICO SUN OIL COMPANY,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________

Robert Brager with whom Richard S. Davis, Joseph C. Stanko, J

_____________
_________________ ____________________
Patricia Ross McCubbin, Beveridge & Diamond, P.C., Leonardo Andra
_______________________ __________________________ ______________
Lugo, Jose A. Cepeda-Rodriguez, Carlos A. Rodriguez-Vidal, Eli Mat
____ ________________________
_________________________ _______
Alicea, Goldman Antonetti Cordova & Axtmayer and Edward J. Ciechon
______ ____________________________________
__________________
were on brief for petitioner.
Alan D. Greenberg, Environment & Natural Resources Divisi

___________________
Environmental Defense Section, Department

of Justice, with whom My

__
E. Flint, Acting Assistant Attorney General, Randolph L. Hill
_________
_________________
Meyer Scolnick, Assistant Regional Counsel, Environmental Protect
______________
Agency, were on brief for respondent.
____________________
October 21, 1993
____________________

BOUDIN,

Circuit
Judge.
_______________

In

August

Environmental Protection Agency issued a

permit
doing so

to Puerto Rico Sun

EPA complied

the governing

Oil Company ("the

the procedures

statute and EPA regulations.

concern,

and that

concern is

explanation for its decision.

so

odd that either

the

pollution discharge

with the substantive

statute and

1990,

Company").

In

requirements of
set forth

in the

Only the result gives cause for

not allayed

by

the agency's

In our judgment, the result is

the EPA has abused

its discretion or it

has

explained

justification.

itself
On

so

poorly

as

to

require

either view, we must vacate

further

the agency's

order adopting the permit and remand for further proceedings.

I. THE FACTS
I. THE FACTS
The

Clean

prohibits

the

Water

discharge

pollutant by any
permit

has

been

state

33
into

person, id.
___
secured

permitting regime is
counterpart

Act,

U.S.C.

1251,

protected

waters

1311(a), unless a

from

EPA.

Id.
___

a hybrid one in which

agency play

role.

et seq.,
________
of

any

discharge

1342.

The

both EPA and the

The

precise role

depends on whether EPA has delegated permit issuing authority

to the state; but no such delegation is present here.
Rico is
Act, id.
___

treated as a state

for purposes of the

Puerto

Clean Water

1362(3), and its local agency is the Environmental

Quality Board ("EQB").

-2-2-

To obtain a permit, the applicant must satisfy a variety

of substantive requirements under the Clean Water Act but, in
addition, no EPA permit
the

discharge

can issue unless the state

will occur

gives

its

own approval

"certification") or waives its right to

1341(a)(1).
discharge

Further,
limitations

federal law requires,

are

the

and those

See generally
_____________

Corp.,
_____

867 F.2d

role).

What

to

the

impose,

33 U.S.C.

more

stringent than

more stringent

federal permit

impose

as

obligations
a matter

of

United States v. Marathon Development

_____________
____________________

96, 99

(1st

Cir. 1989)

lies at the heart of this

and then

(called

certification may

or requirements

incorporated into

course.

state

do so.

in which

back

away from,

(describing state

case is EQB's effort

such

more stringent

obligations.
For some years before this case began, the
a

discharge permit for its

Bay,

Puerto Rico,

different sources.

31,

discharges pollutants

from two

On May 27, 1988, the Company submitted to

1988, EPA

requesting that

oil refining facility at Yabucoa

where it

EPA an application to
October

Company held

renew the permit for its facility.

forwarded

the

a draft certification be
_____

application to

On
EQB,

prepared promptly.

EPA also warned EQB that under EPA regulations, Puerto Rico's
right to impose obligations
if a

by certification would be waived

final certification were

not received

within 60

days

-3-3-

after EPA sent a copy of a (yet to be

to EQB.
On

40 C.F.R.
January

prepared) draft permit

124.53(c)(3) (60 day time limit).1

25,

1989,

EQB

released

certification--essentially a draft document

public
proposed

comment

on

the

federal permit.

proposed
The

state

pollution limitations for

tentative

that facilitates
certification

draft certification

case probably came as a surprise to the Company.

permit had employed a "mixing

and

in this

The earlier

zone" analysis in setting

the

the Company's discharged effluent;

the draft certificate did not include a mixing zone analysis.

The difference, which is

central to this case, needs

a word

of explanation.
A discharge permit under the Clean Water Act may include
several

types

of

requirements.

technology used to limit pollution;

requires that

One

concerns

the

another, pertinent here,

the amount of specified

certain percentage levels.

set

pollutants not exceed

In theory, the percentage levels

could

be

measured in

runoff or waste
river

or

effluent

water--just as

bay which

alternatively,

the

itself--such as

it drains

is protected

by

into the

the Clean

storm
stream,

Water Act;

it could be measured at the edge of a defined

____

____________________
1The Clean Water Act provides that the state waives its
certification rights if it fails to issue or to deny a
certification "within a reasonable period of time (which
shall not exceed one year) after receipt of such request . .
. ." 33 U.S.C.
1341(a(1).
-4-4-

area of the receiving

body of water after the

pollutant has

been diluted by that water.

Such

a defined

appears that

area is

called a

mixing zone,

measuring pollutants at the edge

and it

of the mixing

zone is widespread in the application of the Clean Water Act.

According to an EPA publication, "[w]hether to establish such
a mixing zone policy is a matter of State discretion."

EPA,

Mixing Zones--Water Quality Standards Criteria Summaries: A

_____________________________________________________________

Compilation of State/Federal Criteria 2

________________________________________
("Mixing Zones").
____________

Practically

(September

every state and

1988)

Puerto Rico

have adopted mixing zone criteria, id., although the criteria

___
appear

to differ widely.

as

1988).

of

The

Id. at 70-78 (Puerto Rico criteria

___

mixing

zone

concept

is described

in

Marathon Oil Co. v. EPA, 830 F.2d 1346, 1349 (5th Cir. 1987),
________________
___
which concludes with the

observation that "the `mixing zone'

determination is basically a cost-benefit judgment on a given

set

of

environmental

facts,

`scientific' determination."
When in January 1989

rather

than

any

sort

of

Id. at 1351.
___

EQB issued its draft certification

for the Company's requested permit, the EQB was reformulating

its mixing zone criteria.
Company

neither

EQB's draft certification for the

continued

criteria temporarily nor made

new

criteria still

in

force the

old

mixing

zone

the certificate subject to the

under development.

Instead,

the draft

certification simply set further pollutant limitations which,

-5-5-

absent

the

effluent
supra,
_____

mixing

zone

as it enters
at 2

("If no

analysis, apply

directly

the receiving waters.

such mixing

zone is

to

the

Mixing Zones,
____________
recognized by

State, then the waters must meet the criteria at the point of
discharge.").
The

next event was EPA's release on August 11, 1989, of

a draft permit
permit

and request

incorporated

for public comment.

the

requirements

The

of

draft

the

draft

certification issued by EQB and therefore used no mixing zone

analysis.

Although issuance

final EQB certification

124.53(c)(2),

EQB

of the draft permit

was now due in 60 days,

apparently

paid

no

meant that
40 C.F.R.

attention

to

the

deadline or to EPA's earlier warning that failure to meet the

deadline

would

Nevertheless,
attorneys that
draft permit
certification.

waive
in

Puerto

October

it was

Rico's

1989

EPA

extending the

right
told

the

certify.
Company's

comment period on

"indefinitely" while awaiting

When the

to

the EQB's

the
final

certification arrived, said EPA, it

would set a "prompt" close to the comment period.

On

July 24,

draft permit,

1990, almost

EQB issued

year after

receiving the

what it

called its

"final" water

quality

certification

for the

Company,

mixing

zone analysis.

action

are puzzling because, only four

again

eschewing a

Both the timing and substance of this

days before, on July

20, 1990, EQB had promulgated new regulations to be effective

-6-6-

on

August

20, 1990,

mixing zones.

But

adopting a
if

EQB's

new method
behavior

of determining

was

slothful

and

careless, EPA's reaction was even stranger.

At this
appeared a

point the

EQB's final certification

must have

probable candidate for administrative or judicial

revision in Puerto Rico.

EQB had used a mixing zone analysis

in the past and was proposing to do so in the future, and the

use of such an analysis was likely to be significant; indeed,
the Company later represented,

and EPA has not disputed

the

claim, that its refinery cannot operate if forced to meet the

pollution

standards

analysis.

without

Yet just as the

certification, EPA
permit based

on the

the

help

of

mixing

zone

Company moved to correct the EQB

moved even more swiftly to

EQB certificate

adopt a final

that omitted

a mixing

zone analysis.
The

chronology can be compressed.

On August 17, 1990,

the

Company asked

include

EQB to

a mixing

published

reconsider its

zone analysis.

new

draft

On

permit

August 21,

incorporating

certification requirements, and it

comments.

1990, EPA

EQB's

final

offered 30 days to submit

On September 7, 1990, EQB wrote to EPA saying that

it was evaluating

the Company's comments on

and that it might

alter its certification.

and on September
action

certification and

on

the

21, 1990,
permit to

reconsideration
On

the Company asked

allow

the

EQB

September 10
EPA to

delay

to complete

its

-7-7-

reconsideration.
permit, based

On September 28, 1990, EPA

on the

then July 1990

issued a final

EQB certification

and

without provision for a mixing zone.

On November 7,
review within

1990, the Company

EPA, an

sought administrative

action that automatically

stayed the

new permit, 40 C.F.R.

124.15(b)(2), and left the old one in

force
adopted

on a

temporary

basis.

On

resolution

staying

its

reconsideration and announcing, for

November 28,

1990,

certification

EQB

pending

the benefit of EPA, that

the

certificate

was

reconsideration was
formally
treated

to

EPA

to

completed.
stating

as not final and

previous permit in
EPA's

"not

become

final"

In February

that the

should

be

leave the Company's

effect for the time being.

issued a

the

1991, EQB wrote

certificate

urging EPA to

regional administrator

until

In June 1992

decision reaffirming

the new permit without a mixing zone provision but continuing

the stay of the new

permit pending a further

administrative

appeal.
In

July 1992,

administrator's

the Company

decision

Board, urging a number of

to

duly appealed

EPA's

the regional

Environmental

Appeals

the arguments discussed below, and

making one further contention of note: the Company said

unless EPA modified the permit
would

likely

incorporated

be

unable

get

that

on direct review, the Company

the

mixing

zone

analysis

into the permit through subsequent proceedings.

-8-8-

The reason,

said the Company, was

"the probable application

of

the anti-backsliding policy"

U.S.C.

1342(o).

Appeals

Board

review.

The

U.S.C.

1369(b)(1)(F).

of the Clean

Water Act, 33

On October 26, 1992, the EPA Environmental

issued a

lengthy

Company's appeal

-9-9-

decision refusing

to this court

further

followed.

33

II. DISCUSSION
II. DISCUSSION
Faced with

what may

standpoint, the Company

procedural
that

final

complaint

to

the comment period at

virtually

all

of

addressing them at

was

certify had

that the EPA did

a variety of

ineffective
expired)

not allow a

(because

to a

procedural claims

the close

trivial

15-day extension to

one phase of the proceeding.

the

its

They range from a broad claim

certification

Rico's time

outcome from

has offered this court

challenges to EPA.

EQB's

Puerto

be a disastrous

fail

of the opinion,

We think

and,

while

we prefer

to

begin by discussing EPA's central error.

EPA's

action in adopting the permit in this case is not

flawed by procedural
commendable
there any

job of

mistake.
dotting i's

violation of

Water Act;

On the contrary,

for example,

and crossing

EPA did

t's.

substantive provisions of
nothing in that

Nor is
the Clean

statute explicitly

requires EPA to use mixing zone analyses in its permits.

EPA's

decision

with

appears

on its

because

we cannot rule out the possibility that some further

make no

sense.

that
We

the

The

problem

face to

is simply

outcome

say "appears"

explanation could shore up the EPA's result.

Either way, the

EPA's present action cannot stand.

It may
make sense

come as

a surprise

to reviewing courts.

normally entitled

that agency
Agencies,

decisions must
after all,

to substantial deference so

are

long as their

-10-10-

decisions do not collide directly

commands

and

so long

turned.

This

areas.

But in

as

procedural

deference is
the

end an

706(2)(A)--and
areas of

Administrative

agency

squarely

in technical

decision must

also be

it must not be "arbitrary or

Procedure

that requirement

regulation.

corners are

especially marked

rational--technically speaking,
capricious,"

with substantive statutory

exists

Act,

U.S.C.

even

in

technical

E.g., Public Citizens Health Research

____ ________________________________

Group, v. Tyson, 796 F.2d

_____
_____

1479, 1505 (D.C. Cir. 1986).

The

requirement is not very hard to meet, but it has not been met
here.
The "arbitrary and capricious" concept, needless to say,

is

not easy

to

encapsulate in

because it embraces

single list

a myriad of possible

of

rubrics

faults and depends

heavily upon the circumstances of the case.

Still, there are

rules of thumb, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm

____ _________________________
__________
Mutual Ins. Co., 463 U.S.
_______________
In addressing
to

those

29, 43 (1983) (listing

individual aspects of EPA's

requirements--discussion

consistency

with

past

practice,

of

decision, we cite
relevant

avoidance

discrimination--that are pertinent to

examples).

issues,

of unexplained

EPA's decision in this

case.
On
following
zone

the

surface

of

the

administrative

scene presents itself.

analysis in

past cases,

EQB,

record,

the

having used a mixing

neglected to

include

such a

-11-11-

provision in its latest certification for this facility.

had

previously used

a mixing

zone

analysis for

EQB

this very

facility; and far from abandoning the concept, EQB was in the

process

of revising

analysis

at the

its

regulations to

very time

certification.

Four

it was

days

prescribe such

preparing the

before
______

it

an

Company's

issued

the

final

certification in this case, omitting a mixing zone provision,

it formally promulgated its new mixing zone regulations.
It is not clear
that

EQB

implies

had

probably

that

the

certification, then
rare

whether in August 1990 EPA

accusation

EPA,

is

exhausted

and

having

obtained

administrative

Company by issuing a

plausible,

The

Company's

proceeded with sinister

in

could be revised.

misstepped.

appreciated

law--to

brief

EQB's

final

speed--surely a
mousetrap

the

final permit before EQB's certification

An alternative explanation, to us entirely

that the

EPA's

it wanted,

as it

before, simply to get done with

patience with
had

EQB

warned almost

had been
a year

the permit as soon as it had

EQB's final certification.

However this may be, both the Company and EQB made clear
to

the EPA at once, and before the final permit issued, that

reconsideration was
permit for

under way.

comment in

EPA published

August 1990;

and in

its new draft

September 1990,

before the EPA issued the final permit on September 28, 1990,
______
EQB advised EPA

(on September 7)

-12-12-

that it was

reconsidering

its certification and might

letters (on September
final

action until

proceeded to

alter it, and the

10 and
the

Company wrote

21) begging the

EQB acted.

EPA to

The EPA

issue the final permit with

defer

nevertheless

no explanation for

its refusal to wait.

Even

at this

stage, it

appears that

EPA was

free to

correct the problem on administrative review.

There being no

fixed

presumably had

timetable, the

regional administrator

discretion to defer action

reconsideration request
adopted

by

incorporate

EQB

in

until EQB acted on the

and, if a mixing
a

revised

zone analysis were

certification,

this revision into the new permit.

regulations, 40 C.F.R.

Company's

then

to

One of EPA's

124.55(b), which is discussed below,

seems to contemplate just such a situation.

During this same

period EQB made crystal clear, by its resolution

of November

28, 1990, and its formal letter of February 25, 1991, that it
was planning to reexamine its certification and
the

certification

treated

proceeded to reject the

as

final.

Once

pleas and reaffirm the

did not want

again,

EPA

permit, sans

mixing zone.
EPA has now explained its
administratively and for a

position at least three times

fourth time in this court.

Each

time

EPA

deals

objections

deftly

by showing

with

why

the

Company's

some regulation

procedural

allowed EPA

to

await EQB's final certification, but to refuse to await EQB's

-13-13-

attempt to repair the certification, and allowed EPA to adopt

EQB's certification, but to reject EQB's
to brand
among

it as non-final.

this

array of

retroactive attempt

The only thing that

finely

wrought

is missing,

explanations, is

any

reason why the EPA should want to frustrate the EQB's clumsy,
___
long-delayed but increasingly evident

desire to reconsider a

mixing zone analysis for this permit.

Assuredly, some explanation

is called

for. The

mixing

zone analysis is not some freakish idea or whim of the Puerto

Rico

authorities.

According

to

EPA's

Mixing Zones
_____________

publication, it is available for use in at least 49 states in

varying situations; and the Company said that the refinery in
question

cannot

operate

if

the

permit

limitations

are

applied, without
the

effluent

a mixing zone
enters

considerations of
rational decision,

the

analysis, at the
water.

history and

point that

Patently,

these

practical effect would,

warrant at least some

discussion.

in a
Motor
_____

Vehicle Mfrs. Ass'n, 463 U.S. at 43 (agency may not "entirely

___________________
fail[] to consider an important aspect of the problem").
At oral
the

argument, we

inquired of

counsel representing

EPA whether there were other situations in which EPA had

refused

to

use a

desire that

mixing

zone analysis

such an analysis

be used.

despite
Yes, we

counsel for EPA knew of several such instances.

the Company's counsel responded

a state's
were told,

On rebuttal,

that there were indeed other

-14-14-

instances but they were limited to

in Puerto
other

Rico, in the same

applicants whose

Company.

time frame as this

situations

If this is the situation

later effort

EPA's issuance of permits

to respond), then

case and to

paralleled that

of

the

(counsel for EPA made no

EPA's current posture

is in

some

measure

S.F.R.R.
________

at odds

with precedent.

Cf. Atchison,
___ ________

v. Wichita Bd. of Trade, 412 U.S.

_____________________

T &
___

800, 808 (1973)

("departure from prior norms" must be explained).

The point is not that EPA has some overriding obligation
under the Clean Water Act to do whatever it is that the state
wants to
Puerto

do.

On the

Rico had

contrary, EPA was entirely

ignored

the clear

certification,

to treat

bystander with

no further

explanation,

or

the Commonwealth

at least

should be intent

deadlines

for a

as an

veto authority.
wholly

of what the

final

interested

What

unexplained,

on adopting half

free, once

is beyond
is why

EPA

Commonwealth

wanted while systematically frustrating its attempt to secure

the

other half.

The obligation, we

repeat, is not

one of

deference to local authorities but of making sense.

There
irrational

is

also in

this

case

discrimination.

Mobilephone, Inc.
__________________

v. FCC,
___

See,
___
765

(obligation to treat similar cases

appears,

similarly situated

an

element of
e.g.,
____

F.2d 235

Green Country
______________
(D.C.

similarly).

facilities

apparent

Cir. 1985)
For all that

in Puerto

Rico, if

permitted for the first time next year, are likely to receive

-15-15-

permits including a mixing zone analysis.

Like facilities in

other states, permitted in September 1990 at the same time as

the

Company, probably

analyses.

re-permitted in

EQB was

left

benefit of

Only Puerto Rican facilities that

permitted or
which

received the

out

the

happened to be

this strange "window,"

reformulating its

in

mixing zone

mixing zone

cold--possibly

forever

during

criteria, are
if

the

anti-

backsliding provisions apply.2

Perhaps there is some explanation for EPA's action other
than a mechanical desire to reach
regard
that

to whether the result

there

is

insinuates

that EPA

carelessness
could not

an

provisions

is sound.

explanation.

As

deliberately

to mousetrap

later be

a rapid conclusion without

noted,

took

the Company

relaxed because of

previously mentioned.

Indeed, we suspect
the

Company

advantage of

EQB's

into standards

that

the anti-backsliding

Such a

result would

at

least explain what happened, although it is doubtful that the

explanation,

if adopted

by EPA,

would commend itself

to a

reviewing court.
Or, there may
Perhaps

the

adjustments

be more benign reasons for

Company's science
in

technology

is

would

faulty
permit

EPA's action.

and very
it

to

slight

meet

the

____________________
2Needless to say, we do not know whether the antibacksliding provisions would produce this result.
The
provisions are complicated and contain certain exceptions.
33 U.S.C.
1342(o). The Company's prediction is qualified,
and EPA's brief is silent on this issue.
-16-16-

pollution limitations, and

without any mixing zone
emerges from
adopts

improve the environment to

analysis.

its fortress of

rationale for

beside the point:

the

its

In all events,

boot,

until EPA

procedural-rule citations

and

action,

are

any speculations

agency's decision cannot be supported

on reasoning that the agency has not yet adopted.

See SEC v.
___ ___

Chenery Corp., 332 U.S. 194, 196 (1947).

____________
We turn now to the
because
the

some of them, if

remand.

arguments is
not

entitled

premise,

Company's other arguments on

the

The

main

that, for

adopted, would alter

thrust of

the terms of

Company's

various

various procedural reasons,

__________

EPA was

to rely

on the

Company

argues

EQB
that

the

appeal

certification.
EPA

was

On this

required

to

formulate

its

own

requirements of

permit

standards based

Puerto Rico law, which

requires the use

upon

real

the Company believes

of a mixing zone analysis.

the Company's premise of

the

Since we reject

procedural error, the further steps

in the Company's argument need not concern us.

The

Company's

broadest

procedural

argument

is

that

Puerto Rico's final certification came too late and therefore

could not furnish the
already noted, the
provide

its

certify,
after

the

basis for EPA's own final

Clean Water Act

certificate,

within a

or

reasonable

application,

33

permit.

As

required Puerto Rico

to

announce a
time not
U.S.C.

decision
to exceed

1341(a)(1);

not

to

one year
and

by

decision within

60

-17-17-

regulation EPA required

a certification

days

of a

of

the

124.53(c)(3).

issuance

draft

permit.

40 C.F.R.

Here, EQB apparently ignored both time limits,

failing both to meet the statutory one-year deadline and

regulation-based 60-day deadline.

the

Under

the

statute and

the

regulation,

the price

of

failing to meet the deadlines is that the state agency waives

its right to
would

dictate permit

do on its

Company argues
deadline is
free

own.

Based on

that a

this waiver

without legal effect.

taken

in

beyond what

this

and

after the

In reply EPA says

waiver or, instead,

case

await

EPA

language, the

state certification issued

either to declare a

course

terms that go

it is

to follow the

the

final, though

belated, certification.

The statute itself

merely provides

that

within a reasonable

period, not to

the state must act

exceed

year, or

deemed "waived."
Although
legislative

the

certification

33 U.S.C.

we

are

reading

coincides with that of EPA.

word

be

1341(a)(1).

provided

history, our

requirement will

no
of

useful
the

precedent
statute

or

largely

The statutory time limit and the

"waived" do not tell us the answer; Congress could have

meant that
had to
EPA was

a state

certification issued after

be ignored by EPA,
free to do so.

the latter

and under

the deadline

or it could have

meant only that

EPA interprets the

statute to mean

the Chevron doctrine,

_______

Chevron U.S.A.,
_______________

-18-18-

Inc. v.
____

NRDC, 467 U.S.

____

weight.

State of California v. FERC, 966 F.2d 1541 (9th Cir.

___________________
____

1992),

cited by

837 (1984), its view

the Company

as holding

is entitled to

that the

deadline

cannot be waived, holds no such thing.3

Further,

EPA's

regulation seems
reading
even
one

to

reading both
us

of

operate

under an

rigid to

insist

because

EPA's

Indeed, where no

it could

happy

to

be pointlessly
the

moment the certification deadline expires for the state.

The

applicant could be left

courts have

its own

is

calculations

concern on the other side

begin

late.

the applicant

earlier permit),
that EPA

one.

its

benefit of the state process

if that benefit comes a little

(e.g.,
____

statute and

sensibly flexible

gives it the practical

complains

the

is that without a deadline,

dangling forever.

adequate power

But we

to assure that

a new

think the

flexibility does

not become an excuse for permanent inaction.4

____________________
3EPA's interpretation of its own 60-day regulation is
even more
compelling since it
wrote the
regulation.
Gardebring v. Jenkins, 485 U.S. 415, 430 (1988) In addition,
__________
_______
agencies can usually (although not always) waive their own
procedural regulations even where there
is no express
provision for waiver.
American Farm Lines v. Black Ball
____________________
__________
Freight Service, 397 U.S. 532, 538 (1970).
_______________

4See Administrative Procedure Act, 5 U.S.C.

706(1)
___
(power to compel agency action unduly delayed). The courts
are normally deferential to the agency in such cases.
See,
___
e.g., Telecommunications Research & Action Center v. FCC, 750
____ ___________________________________________
___
F.2d 70 (D.C. Cir. 1984).
Here, however, Congress has
expressed its intent that the state proceeding be completed
in a year. If EPA wants to waive the state's failure to meet
a deadline, and wait longer for its certification, we think
that the propriety of its deferral might be open to judicial
-19-19-

The

Company's

discussion.

remaining

arguments

several shades

of meaning

where, as here, the agency

body)

has

"final,"

spoken

and

"Finality" is a concept

in administrative

law; but

itself (rather than a subordinate

has explicitly

labeled

its

action

we think that is enough, even though the agency may

choose to reconsider or may

The Company failed

to get

be reversed on judicial
a stay of

the EQB

before EPA acted in reliance upon it.

the

less

The claim that EQB's certification was not final

when EPA adopted it is unpersuasive.

with

require

subsequent
__________

decision

of

EQB

review.

certification

We agree with EPA that

to

re-characterize

its

certification order as non-final cannot affect the procedural

validity of EPA's decision to grant the permit.
In fact, EPA has regulations that govern the effect of a
state stay or modification of a certification after
has issued.

The

pertinent regulation permits EPA's regional

administrator under certain circumstances to

modifications
stays
to

a permit

into the

permit so

incorporate the

long as the

state agency

or modifies the old certificate and forwards a new one

___

EPA as a

substitute.

40

C.F.R.

124.55(b).

But this

regulation does not apply in this case because EQB never sent
a substitute certificate to the EPA.
The Company
C.F.R.

relies upon a different

122.44(d)(3).

EPA regulation, 40

This provides in part that if a state

____________________
review that is somewhat more searching than customary.
-20-20-

court or board
state
finally

that

stays a certification,

certification will

effective

certificate

EPA shall notify

be

deemed

waived unless

is

issued

within

the
a

60 days;

absent such a new certification, the regulation says that EPA

shall

impose

agreement

its

own

requirements

in

the

permit.

In

with EPA, we read this regulation to apply only to

stays that occur before EPA has issued its own permit.

Once

again, the agency's reading of its own regulation is entitled

to deference.
has

Gardebring, 485 U.S. at 430.

__________

the benefit

permit

stays,

of making
dovetail

Its reading also

this regulation,

with

section

governing pre-

124.55(b), governing

post-permit stays.
In an attempt to bolster the importance of the EQB stay,
the

Company reminds us of

were intended to
role is to be

the central role

play under the

Clean Water Act.

played within the framework of

fixed by the statute and EPA regulations.

because

two

collaborate
compliance
came

after
_____

different
on

EPA's

the

jurisdictions

permit,

with the rules

standpoint--EPA
until

that the states

permit
was

there

of the road.
and--strictly

entitled to

regulation

is

governing

satisfied.

-21-21-

expected

special

need

to
for

Here, the EQB stay

from

disregard
a

the procedures

Indeed, precisely
are

Yet that

procedural

it,

unless and

post-permit stay

was

In

summing up, we stress

action

is

not

irrational, or
of

procedural

permitting

matter, EPA has

matter

those

To

desire to use

companies who

fall

of

the

it makes sense, as

zone analysis,

and why

in this

"window" between

Puerto

mixing analysis.
even

the gist

the mixing

benefits of

the same

substance of the

Rico's

new regulations

virtually

is

frustrate Puerto

Rico's old and

a

restate

to

result

explained, not because

___

failed to explain why

policy,

flaw in EPA's

EPA's

because of the

decision.

of substantive

incipient

defect.

at least inadequately

EQB's hapless stay, but

EPA's

again that the

should alone

be denied

Those concerns

if EQB

had

never used

would
the

the
be
word

"stay."5
III. CONCLUSION
III. CONCLUSION
In

framing the remand, we begin

have not decided.

___
the EQB in August
Rican

Whether the final certification issued by

1989 is vulnerable to attack

law, if not altered

issue not

by emphasizing what we

before this

by EQB on

court.

under Puerto

reconsideration, is an

Although

state certification

provisions are incorporated into federal permits, review of a

____________________
5We have not discussed the Company's separate claim that
EPA abused its discretion by not extending the comment period
for 15 days, as requested by the Company, to permit more time
for comment on technical issues. This argument, summarily
stated in a paragraph at the end of the Company's brief, is
not seriously supported and is therefore not preserved for
review. United States v. Zannino, 895 F.2d 1, 27 (1st Cir.),
_____________
_______
cert. denied, 494 U.S. 1082 (1990).
____________
-22-22-

state certification is a matter for

local courts.

Roosevelt
_________

Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, (1st Cir.
____________________________
___
1982).

The apparent past

and future inclination

of EQB to

employ mixing zone analyses is part of the background of this

case, but nothing we have said should be taken to declare the
law of Puerto Rico on this subject.

has

Similarly, we

do not suggest that

role under

sacrosanct

the

mixing zone analysis

Clean

Water

Act.

Our

impression from EPA's own publication is that the use of such

analysis is widespread.

But that

impression is subject

to

correction.

In any

event, sound reasons may dictate

that a

mixing

zone analysis not be used in certain cases or certain

classes

of cases, despite a possible hint to the contrary in

Marathon Oil Co.,

_________________
effluent

itself

830
does

F.2d at
not

1349

meet

("By definition,

water

quality

standards;

otherwise, it would not be considered polluted.").

even be reasons why, apart

the

There may

from EQB's procedural default,

mixing zone analysis is improper in this case.

All that we hold
permit in

here is that EPA's decision to issue a

September 1990,

adopting EQB's

certification but

refusing to await EQB's decision on reconsideration, produces

a

result

that

arbitrary and
such

on

the present

capricious.

an outcome,

record

appears

manifestly

If legitimate reasons

then EPA is

free to provide

adopt the present permit (and the

exist for

them and re-

Company in turn is free to

-23-23-

challenge those reasons and

for judicial

review).

that action by petitioning again

EPA, EQB, and the Company may find it

possible to chart a more constructive course and make further

litigation unnecessary.
The
is

EPA order adopting the permit at issue in this case

vacated and
_______

the matter

is remanded
________

to EPA

proceedings in accordance with this opinion.

in favor of the petitioner.

-24-24-

for further

Costs are taxed