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OPINION
Before VAN OOSTERHOUT, BROWNING and SNEED, Circuit Judges.
SNEED, Circuit Judge:
This is an appeal from an action which sought a declaratory judgment that certain coal leases entered into between Westmoreland Resources and the Crow Tribe of Indians and approved by the Bureau of Indian Affairs (BIA) of the Department of the Interior were invalid and which further sought to enjoin strip mining operations thereunder. Plaintiffs (appellants herein) were individuals living on the “Crow Ceded Area” in Montana and Friends of the Earth. Defendants were the Crow Tribe of Indians, Westmoreland Resources, Secretary of the Interior, the Commissioner of the BIA, the Superintendent of the Crow Agency of the BIA, the Director of the United States Geological Survey (USGS), and the Area Mining Supervisor of the Conservation Division of the USGS.
The land involved in the present controversy is within the Crow Ceded Area, which was originally part of the Crow reservation but which was ceded back to the United States under a 1904 agreement. The lands were opened to homesteaders in 1909, but only surface interests could be acquired by homestead. Certain of the original individual plaintiff-appellants are successors in interest to persons who obtained title through homestead to portions of the Crow Ceded Area.
In 1970, as part of a program to develop coal reserves in the Crow Ceded Area, the Crow Tribe granted two prospecting permits, including options to lease, to Westmoreland. The latter exercised the options in June, 1972 and by means of two agreements — covering 16,130.53 acres and 14,745.92 acres respectively— leased the coal rights in the entire 30,-876.45 acres there designated for a term of ten years and as long thereafter as coal is produced in paying quantities. At this time the BIA, which had approved the permits and the leases, had prepared no environmental impact statement (EIS) or other environmental analysis.
On June 15, 1972, the day after the leases were approved, Westmoreland entered into contracts with four mid-western utility companies to supply some 77,000,000 tons of coal over a twenty-year period, to begin July 1, 1974. In November, 1972 Westmoreland filed an application with the USGS for approval of a mining plan covering operations for five years on some 770 acres of the leased land. The surface of this area has been acquired by Westmoreland, while most of the remaining acreage is owned by others, including appellants herein. Upon obtaining consent from the USGS to engage in pre-mining activities, Westmoreland began construction of surface facilities required for coal mining.
The BIA issued a draft EIS in October, 1973, and public hearings were held the following month. The final EIS— which was addressed only to the initial mining plan — was submitted to the Council on Environmental Quality in January, 1974, and this action was filed the following month.
The plaintiffs’ complaint sets forth four claims. With respect to the plaintiffs’ first, third, and fourth claims the court below denied the plaintiffs’ request for a preliminary injunction and granted defendants’ motion for summary judgment. Following a later hearing, the court also denied relief on plaintiffs’ second claim and entered judgment thereon in favor of defendants. We reverse as to the first and second claims, remand to the district court for entry of an order which pertains to the subject matter of the first and second claims and is described more fully at the close of this opinion, and affirm as to the third and fourth claims. A more specific description of these claims is as follows:
Plaintiffs in their first claim contended that the prospecting permits and coal leases were invalid in that their approval in the absence of an EIS violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The trial court held that this claim was subject to summary judgment because (1) the approval of the prospecting permits did not constitute “major federal actions” within the meaning of NEPA, 42 U.S.C. § 4332(C); (2) NEPA was not intended to be applied retroactively, so that the Tenth Circuit decision in Davis v. Morton, 469 F.2d 593 (10th Cir. 1972), reversing the court below and holding that an EIS was required for leases on Indian lands, should not invalidate the leases here, particularly where the defendants had relied on the district court opinion in their actions; and (3) the federal defendants had issued an EIS and therefore have complied with NEPA; and (4) plaintiffs were barred by laches.
Plaintiffs in their second claim asserted that the final EIS was inadequate, not only in content but in scope, since Westmoreland had contract commitments for coal deliveries spanning twenty years and had leased 30,876 acres of land, whereas the EIS dealt only with a mining plan which covered but five years and 770 acres. The court, in ordering that judgment be entered in favor of defendants, held (1) that the final EIS met all the requirements of NEPA; (2) that because the substance of plaintiffs’ claims were before the approving authority as a part of the EIS, it was not deficient; and (3) that plaintiffs lacked standing to challenge the sufficiency of the EIS in that they were beyond the zone of interests to be protected by NEPA, since the Secretary of the Interior in approving the leases in his fiduciary capacity was required by the Act to consider only environmental impacts which might adversely affect the Indians.
Plaintiffs’ third claim, that the leases were invalid since they violated certain regulations of the BIA, was held subject to summary judgment on the grounds that plaintiffs (1) lacked standing to sue on this issue; (2) failed to exhaust available administrative remedies; and (3) were barred by laches.
The court also granted summary judgment against plaintiffs on their fourth claim, that the leases were invalid since the United States, rather than the Crow Tribe owned the coal affected by the leases. The court reasoned that (1) none of the plaintiffs had a colorable claim to the leased coal rights and hence none had the personal stake necessary for standing; (2) even if plaintiffs had standing, litigation to determine the ownership of the coal rights was barred by sovereign immunity; and (3) the Crow Tribe did in fact own the coal rights.
We will discuss the first and second claims together; Thereafter the third and fourth claims will be treated separately. To simplify our presentation no attempt will be made to deal with each and every position taken by the lower court; rather our discussion is directed to, and organized around, only those issues which we believe are necessary to the proper disposition of these claims.
I. First and Second Claims.
A. Preliminary Questions:
Standing and Laches.
(1) Standing.
Appellants base their standing to sue on § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702, which provides:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
The Supreme Court has held that persons have standing to seek judicial review of federal agency action under § 10 where they allege that the challenged action has caused them “injury in fact” to an interest “arguably within the zone of interests to be protected or regulated” by the statute which was allegedly violated. Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). Injuries of a noneconomic nature to widely-shared aesthetic and environmental interests, as well as economic injuries, can amount to an “injury in fact” sufficient for standing under § 10. Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), cited with approval in United States v. SCRAP, 412 U.S. 669, 689, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Appellants here allege injury to both environmental and economic interests which are within the “zone of interests” to be protected by NEPA. United States v. SCRAP, supra, 412 at 686 n. 13, 93 S.Ct. 2405; cf. Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974); National Forest Preservation Group v. Butz, 485 F.2d 408, 410 (9th Cir. 1973).
This conclusion is not altered either by the fact that Indians were parties to the leases being attacked or by the fact that the Secretary of the Interi- or acted in his capacity as a fiduciary for such Indians in approving the leases. NEPA’s stated purpose is to “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings . . . ” 42 U.S.C. § 4331 (b)(2). (Emphasis added). Prior judicial interpretations of NEPA, moreover, give no indication that major federal actions primarily pertaining to Indians were to be immune from environmental challenges by all but such Indians. This court has stated that “[e]nvironmental protection is a part of every federal agency’s mandate; the Act requires ‘agencies to consider environmental issues just as they consider other matters within their mandates.’ ” Lathan v. Brinegar, 506 F.2d 677, 689 (9th Cir. 1974), citing Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1112 (1971). (Emphasis in original). The Calvert Cliffs court concluded that agency duties under NEPA are “not inherently flexible” but instead “must be complied with to the fullest [statutory] extent, unless there is a clear conflict of statutory authority.” 449 F.2d at 1115. A like approach was taken by the Tenth Circuit in Davis v. Morton, 469 F.2d 593, 596 (10th Cir. 1972).
To restrict standing, as did the lower court, to institute an environmental challenge to the Crow Tribe would limit standing under the circumstances of this case to a group having a strong economic incentive to alter substantially the environment. NEPA is not such a false promise.
(2) Laches.
We also conclude that the trial court in its disposition of the first claim erred in its determination that the appellants were barred by laches. Laches, an equitable defense, “requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543, 5 L.Ed.2d 551 (1961); Lathan v. Brinegar, supra, 506 F.2d at 691 — 92. Neither element is present here.
The leases were granted in June, 1972 and the preparation of the EIS began early in 1973. We cannot say that it was a lack of diligence for appellants to refrain from commencing an action to challenge the adequacy of the EIS until they could ascertain its contents. Appellants were entitled to assume that federal agencies would comply with the requirements of NEPA. Environmental Defense Fund v. TVA, 468 F.2d 1164, 1182 (6th Cir. 1972).
Moreover, Westmoreland was put on notice of appellants’ position well before this suit was instituted. Appellants presented their views with respect to the inadequacy in scope and content of the draft EIS during public hearings in November, 1973. Also several environmental groups, including Friends of the Earth, filed suit in the district court for the District of Columbia on June 13, 1973 to require the federal government to issue a comprehensive impact statement covering all aspects of coal and power development in the Northern Great Plains region, the effect of which would be to halt further mining development there pending such an analysis. Westmoreland and the Crow Tribe intervened in that litigation. (The Court of Appeals for the District of Columbia Circuit recently reversed a grant of summary judgment in favor of the defendants and remanded the case to the district court to give the Secretary of the Interi- or the opportunity to determine whether an EIS was required in light of certain tests enunciated by the appellate court. Sierra Club v. Morton, 514 F.2d 856 (D.C.Cir. 1975)).
Westmoreland also failed to prove that any prejudice to which it may be subjected by reason of this suit resulted from reliance on appellants’ inaction. The ultimate basis for the sums expended by Westmoreland was its entry into the twenty-year contracts to supply 77,-000,000 tons of coal; those obligations were incurred on the day after the leases were signed in June, 1972. Its commitments under the contracts to begin delivery of coal by July, 1974 necessarily locked Westmoreland into a construction and site development schedule which existed independent of any action or inaction by appellants.
On these facts the defense of laches is not available. This conclusion is strengthened by the fact that laches is not favored in environmental litigation. That is,
[Laches] . . . has received a lukewarm reception in suits presenting environmental questions, for not only will others than the plaintiff suffer the possible environmental effects, but the agency will escape compliance with NEPA, a result not to be encouraged.
Minnesota PIRG v. Butz, 498 F.2d 1314, 1324 (8th Cir. 1974).
The public has an interest in compliance with NEPA that should not be impaired lightly. Liberal rules with respect to standing do not require that the doctrine of laches be treated more hospitably.
B. Approval of Leases as Major Federal Action.
To succeed in their first claim the appellants must not only establish their standing to sue and surmount the defense of laches but also establish that the approval by the Secretary of Interior of coal leases covering 30,876 acres of land constituted “major federal action” within the meaning of 42 U.S.C. § 4332(a)(C). The lower court avoided reaching this issue. This was error. We are persuaded by Davis v. Morton, 469 F.2d 593 (10th Cir. 1972) that the approval in this case was “major federal action” which requires the preparation of an EIS that satisfies the mandate of NEPA. Neither the status of Indians nor the manner in which their lands are held in trust justifies removing from the “major federal action” category the 1972 approval of the leases in this case.
Inasmuch as no EIS was prepared until 1973 and its coverage was limited to the 770 acres embraced in the mining plan, it becomes necessary to determine whether this EIS satisfies the mandate of NEPA with respect to the Secretary’s approval of the leases. The heart of the appellant’s second claim is that it does not. To this issue we now turn.
C. Adequacy of the EIS Covering 770 Acres for Approval of the Leases.
(1) Standard of Review.
Our decisions make clear that the adequacy of an EIS must be reviewed against a procedural standard. Thus the “without observance of procedure required by law” standard of 5 U.S.C. § 706(2)(D) rather than the “arbitrary, capricious, an[d] abuse of discretion” standard of § 706(2)(A) is the proper measure. Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974). We also have recognized that this procedural standard “is less helpful in reviewing the sufficiency of an EIS than one might wish.” Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974). The standard presently is more ad hoc in character than might be thought proper. Nonetheless, we have no difficulty in applying it to this case.
(2) Application of the Procedural Standard.
NEPA requires that an EIS be prepared in “every recommendation or report on major Federal actions” and that the statement “shall accompany the proposal through existing agency review processes.” 42 U.S. § 4332(2)(C). These requirements further the purpose of the Act to require officials to consider environmental issues in determining whether the actions they contemplate should be undertaken. An ex post facto justification generally is not an acceptable substitute, as “NEPA does not authorize defendants to meet their responsibilities by locking the barn door after the horses are stolen.” Lathan v. Volpe, 350 F.Supp. 262, 266 (W.D.Wash.1972), aff’d in part and rev’d in part, 455 F.2d 1111 (9th Cir. 1971); see 40 C.F.R. § 1500.7(a); Conservation Society of Southern Vermont, Inc. v. Sec’y of Transportation, 508 F.2d 927 (2d Cir. 1974). That the filing of an EIS should precede rather than follow federal agency action has been consistently recognized by the courts.
In this respect the EIS covering the 770 acres is not adequate. It did not “accompany” the submission by the Secretary. This inadequacy is not excused by the existence of the lower court« decision in Davis v. Morton which held approvals by the Secretary of leases of Indian land not to be “major federal action.” Reliance on that decision in the face of the comprehensive language of the statute fails to elicit the sympathy which acceptance of the defendants’ proffered excuse would require. Nor does failure to accept the excuse constitute retroactive application of NEPA. All the significant actions in this case occurred subsequent to January 1, 1970, the effective date of NEPA.
Nonetheless the defendants insist that the EIS pertaining to the mining plan covering operations for five years on 770 acres of leased land is all that is required because numerous authorities recognize that under proper circumstances an EIS need not be prepared covering an entire project when an adequate EIS covering a discrete phase or segment thereof has been prepared. This is such an instance, the defendants assert. Therefore, continue the defendants, the only-issue is whether the EIS before us is adequate with respect to the mining plan to which it was addressed.
We disagree. While it is true that each mining plan prepared for tracts within the leased area is to a significant degree an independent project which requires a separate EIS with respect to each, it is no less true that the breadth and scope of the possible projects made possible by the Secretary’s approval of the leases require the type of comprehensive study that NEPA mandates adequately to inform the Secretary of the possible environmental consequences of his approval. Westmoreland’s massive capital investment and extended contractual commitments present a situation in which “it would be irrational, or0at least unwise, to undertake the first phase if subsequent phases were not also undertaken.” Trout Unlimited, supra, 509 F.2d at 1285. However, even were this not true, it cannot be denied that the environmental consequences of several strip mining projects extending over twenty years or more within a tract of 30,876.45 acres will be significantly different from those which will accompany Westmoreland’s activities on a single tract of 770 acres.
Under the circumstances of this case we, therefore, hold that an EIS must be prepared for the entire project contemplated by the leases which the Secretary approved in June, 1972. We also hold that each specific mining plan functionally equivalent to the 770-acre plan for which an EIS has been prepared must be accompanied by an adequate EIS. Our position is supported by numerous authorities.
D. Adequacy of EIS Covering 770 Acres for Approval of Five Year Mining Plan.
Implicit in our determination that an EIS must be prepared in conjunction with each separate and distinct mining plan is the holding that any approval thereof by a federal agency constitutes “major federal action.” The magnitude of the undertakings embraced within the five year 770 acre plan before us convinces us beyond any doubt that approval by a federal agency of a substantially equivalent plan is “major federal action.”
This conclusion requires that we examined the EIS prepared by the BIA to determine its adequacy. The appellants assert that it is deficient in six respects, viz. in its treatment of reclamation, ground water supply, water pollution, air quality, alternatives, and cost-benefit analysis.
Appellants characterize destruction of the land as the “most important single environmental impact” of the project and argue that in its discussion of reclamation, the EIS is lacking in data and is insufficiently analytical. We disagree. While we would have preferred a somewhat more detailed and better organized treatment of the proposed reclamation plans and although parts of the discussion are couched in the “conclusory form” we consider less than optimal, we cannot say that the EIS is inadequate in this regard. Nor are we dislodged from this position because of the conflict in expert testimony concerning reclamation procedures and prospects at trial. As was said in Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), “disagreement among experts will not serve to invalidate an EIS.”
Appellants’ attack upon the treatment of ground water supply and water pollution highlights the fact that the EIS concedes that certain environmental effects are not known. This does not necessarily undermine the adequacy of the statement. This court has explained:
Neither § 102(2)(B) or (C) [42 U.S.C. § 4332(2)(B) or (C)] can be read as a requirement that complete information concerning the environmental impact of a project must be obtained before action may be taken. If we were to impose a requirement that an impact statement can never be prepared until all relevant environmental effects were known, it is doubtful that any project could ever be initiated.
Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280 (9th Cir. 1973). We conclude that the treatment of ground water supply and water pollution in the EIS is adequate, as is its discussion of air quality, also attacked by appellants.
We also decide that the EIS adequately deals with the subject of alternatives. See Trout Unlimited, supra, 509 F.2d at 1285.-86. The EIS describes three basic alternatives — approval of the mining plan, modification of the present plan, and rejection of the plan — with subtopics where appropriate. For example, with respect to the “rejection” alternative, there are listed two courses of action which might ensue, i. e., an agency determination that coal mining could not be permitted anywhere on the leased area, or submission of a new mining plan by Westmoreland. In connection with the former, the EIS discusses (1) alternate sources of tribe income, (2) alternate supplies of coal, (3) non-coal energy alternatives, and (4) other alternatives. In connection with the latter, the statement discusses site, mining method, coal use, and transportation alternatives. The process of fractionating alternatives need not be pursued to the brink of triviality.
Finally, appellants characterize the EIS as inadequate for want of a cost-benefit analysis. In Trout we held that the absence of a numerically expressed cost-benefit analysis was not fatal. Trout Unlimited, supra, 509 F.2d at 1286. It is also not fatal here and for the same reasons. Throughout the EIS is recognition and discussion of the various advantages and detrimental effects of the project. The failure to affix numerical weights to each of these does not make the EIS inadequate in this case. We conclude, in sum, that although the EIS could be “improved by hindsight,” it has satisfied the intent of the statute. National Forest Preservation Group v. Butz, 485 F.2d 408, 412 (9th Cir. 1973).
II. Third Claim.
In their third claim appellants assert that the leases must be invalidated because they were entered into and approved in violation of two regulations of the BIA, 25 CFR § 171.9(b) and 25 CFR § 177.4. In their complaint appellants also alleged violation of 25 CFR § 171.27, but they do not pursue this point on appeal. We reject these contentions and hold that the appellants lack standing to challenge 25 CFR § 171.9(b) and that the issues resting on 25 CFR § 177.4 are moot in view of the disposition we have made of the appellants’ first claim.
A. Standing to Challenge 25 CFR 171.9(b).
25 CFR § 171.9(b) provides an acreage limitation on coal leases, viz.:
(1) For coal, a lease shall ordinarily be limited to 2,560 acres. The Commissioner may, however, upon application, approve the combining of leases held by one or more lessees, or approve the issuance of a single lease for more than 2,560 acres in a reasonably compact form, if he shall find that the approval of such larger acreage is in the interest of the lessor and is necessary to permit the establishment or construction of thermal electric power plants or other industrial facilities on or near the reservation.
The coal leases before us involve 14,-745.92 and 16,167.26 acres, respectively, and there is no evidence that the larger acreage will be utilized to construct power plants on or near the Crow reservation.
Our conclusion that the appellants lack standing to challenge a violation of 25 CFR § 171.9(b) is rooted in the fact that they can suffer no “injury in fact” as a result of this violation that is separate and apart from the alleged injuries we have held sufficient to enable appellants to litigate their first and second claims. These alleged injuries made it possible for the appellants to attack the existence of the leases. If the injuries exist in fact, they also will exist without regard to whether the mining operations are conducted under twelve leases of 2,560 acres apiece or under two leases of 14,745.92 and 16,167.-26 acres respectively. In either event, the injuries of which the appellants complain are the same; in neither event have the appellants alleged an injury in fact attributable to the size of the leases.
B. Mootness of the Technical Assessment Question.
25 CFR § 177.4(a)(1) provides:
In connection with an application for a permit or lease, the superintendent shall make, or cause to be made, a technical examination of the prospective effects of the proposed exploration or surface mining operations upon the environment. .
No technical assessment pursuant to 25 CFR § 177.4 was submitted prior to the approval of the leases in June, 1972. However, the assessment was subsequently undertaken and was submitted in the summer of 1973; its adequacy is not challenged here.
Given the present posture of the case, we reach neither the question of whether appellants have standing to challenge the failure to conduct a timely technical assessment nor that of the effect of such a delay. Since the approval of the leases must now be re-evaluated in the light of the comprehensive EIS, the completed technical assessment will be available to the decision-makers at the appropriate time. We conclude, then, that appellants’ claim with respect to the § 177.4 violation has been mooted by the disposition of this appeal.
III. Fourth Claim.
Appellants assert finally that the leases are invalid on the ground that the United States rather than the Crow Tribe holds legal title to the coal rights and hence that the latter had no right to lease them. We do not reach the merits of the ownership question since we hold that appellants lack standing to sue.
To permit them to litigate the issue of the disputed ownership rights would have the effect of an action to quiet title. But appellants themselves make no claims of interest in the coal rights and it is hornbook law that in an action to quiet title, a plaintiff must succeed on the strength of his own title and not on the weakness of his opponent’s.
IV. Disposition of Appellants’ Claims.
Because of the issues above expressed we dispose of the claims before us in the following manner. The district court’s grant of summary judgment in favor of appellees is affirmed as to the appellants third and fourth claims. As to the first and second claims it is reversed. We remand to the district court and direct that it enter an order (1) which declares that the approval of the leases was “major federal action” which requires the preparation of an EIS that satisfies the mandate of NEPA, and that the EIS prepared in conjunction with the five-year mining plan on the 770-acre tract was not adequate for this purpose; and (2) which enjoins all future operations under the leases, except those taken pursuant to, and authorized by, the five-year mining plan on the 770 acres approved by the USGS. The injunction shall be effective pending preparation of an adequate EIS covering the entire project and upon the basis of which the Secretary must reconsider his approval of the leases. In reconsidering his approval and in considering any future mining plans, the Secretary must ignore investments or commitments made by Westmoreland under the five-year plan on the 770-acre tract.
Affirmed in part and reversed and remanded in part.
. During the pendency of this appeal, plaintiffs John R. Redding, Kenneth and Madge John and Orville John conveyed their surface interests to appellee Westmoreland and withdrew as plaintiffs in this litigation. Plaintiffs Bruce and Dorothy Cady likewise have conveyed, according to the affidavit of Bruce Cady, approximately one-half of their surface interests in the leased area to Westmoreland; they have, however, indicated their intention to continue with this litigation, either as named plaintiffs or as members of Friends of the Earth, another named plaintiff. Appellee Crow Tribe disputes the substance of the Cady affidavit, claiming that as a result of the conveyance, the Cadys were left with no surface interests within the leased area.
We need not resolve this issue, since even the departure of the Cadys would not moot this lawsuit. Edward M. Dobson, an original named plaintiff, has submitted an affidavit which states that he is presently a resident of Sarpy Creek, Big Horn County, Montana, living on the ranch of J. T. Redding, which is within the leased area. He asserts that the “damage will include permanent destruction of the land which is strip mined, permanent damage to the underground water system upon which the grazing lands in the region depend for ' sub-irrigation, degradation of surface waters and of air quality in the region, intrusion of noise, interference with wildlife, aesthetic damage, and permanent impact on the quality of life in the whole region. . . affidavit, March 27, 1975. Such allegations indicate that appellant Dobson may have suffered an injury to interests reflecting aesthetic, conservational, and economic values distinct from his general interest in advancing the cause of preserving the environment. Clearly appellant Dobson alleges he is among those injured in fact. This provides him with sufficient standing to maintain this action and to deprive it of mootness in its entirety. Furthermore, appellant Friends of the Earth has standing to sue on behalf of those of its members who claim that they will suffer similar injuries if the coal leases are not invalidated. Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The complaint sufficiently alleges such injuries to certain members of Friends of the Earth. See the discussion of standing pp. 792-793 infra.
. While the Tenth Circuit did not discuss the question of standing, the trial court found that “[p]laintiffs have alleged sufficient interests, economic and otherwise, to have standing to sue.” 335 F.Supp. 1258, 1260 n. 2 (D.N.M. 1971).
. Thus prevailing judicial sentiment is to the effect that “ ‘[t]he tardiness of the parties in raising the issue cannot excuse compliance with NEPA; primary responsibility under the Act rests with the agency.’ ” Environmental Defense Fund v. TVA, 468 F.2d 1164, 1183 (6th Cir. 1972), quoting with approval, City of New York v. U. S., 337 F.Supp. 150, 160 (E.D.N.Y.1972); Jones v. Lynn, 477 F.2d 885, 892 (1st Cir. 1973); cf. Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1119 (1971).
. See Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir. 1974); Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380, 463 F.2d 783 (1971); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied sub nom., Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972); National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971); Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n., 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971).
. National Forest Preservation Group v. Butz, 485 F.2d 408, 412 (9th Cir. 1973). This was, in fact, one of the few cases in which the failure to adhere strictly to the timing requirements of NEPA was excused; it is readily distinguishable from the situation before us. In that case, the failure to prepare an EIS occurred at a low administrative level. We held that there had been no prejudicial failure to comply with NEPA since (1) a written explanation of the decision made without the benefit of the EIS demonstrated that environmental factors had been considered; and (2) the omission was corrected soon enough that the EIS was available to decision-makers at the higher levels. 485 F.2d at 412.
. Some courts have refused to give NEPA retroactive application. See e. g., San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973); Ragland v. Mueller, 460 F.2d 1196 (5th Cir. 1972); Brooks v. Volpe, 319 F.Supp. 90 (W.D.Wash.1970), rev’d on other grounds, 460 F.2d 1193 (9th Cir. 1972); Investment Syndicates, Inc. v. Richmond, 318 F.Supp. 1038 (D.Or.1970); Pennsylvania Environmental Council v. Bartlett, 315 F.Supp. 238 (M.D.Pa. 1970).
Other courts, however, have held the provisions of the Act to be applicable to projects already initiated at its effective date. See, e. g., Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973); Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289 (8th Cir. 1972); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied sub nom., Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972); Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n., 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); Lathan v. Volpe, 455 F.2d 111 (9th Cir. 1971); Greene County Planning Bd. v. Federal Power Comm’n, 455 F.2d 412 (2d Cir. 1972); Citizens for Mass Transit Against Freeways v. Brinegar, 357 F.Supp. 1269 (D.Ariz.1973); Nolop v. Volpe, 333 F.Supp. 1364 (D.S.D.1971); see also Environmental Law Fund v. Volpe, 340 F.Supp. 1328 (N.D.Cal.1972).
. See, e. g., Sierra Club v. Stamm, 507 F.2d 788 (10th Cir. 1974) [aqueduct and collection system constituted “major federal action” in itself and was not a mere increment of larger water collection development, and diversion project]; Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974) [EIS discussing only first of two phases of dam and reservoir project was sufficient where first phase was substantially independent of the second; EIS covering entire project would be necessary only where the dependency of the first phase on those to follow was “such that it would be irrational, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken”]; Sierra Club v. Callaway, 499 F.2d 982 (5th Cir. 1974) [“rule against segmentation for EIS purposes is not an imperative to be applied in every case”; here, dam and lock project was a separate viable entity and not a mere component, increment, or first segment of larger project and has been treated as such by Congress]; Environmental Defense Fund, Inc. v. Armstrong, 352 F.Supp. 50 (N.D.Cal.1972) , supplemental opinion, 356 F.Supp. 131 (N.D.Cal.1973), aff'd, 487 F.2d 814 (9th Cir. 1973) [so long as each major federal action— here, construction of New Melones Dam — was undertaken individually and not as indivisible part of integrated statewide system, EIS with respect to dam was sufficient and construction could continue in the absence of comprehensive study of area water project]; Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973) [as a practical matter it is necessary to permit the division of a state highway plan into segments for EIS purposes; court, however, will not consider as an appropriate segment for EIS one which has no independent utility.]
. That the BIA considered a “segmented” method of EIS preparation sufficient need not weigh heavily in our assessment of the demands of this situation, since “[a]n agency decision concerning NEPA requirements is not one committed to the agency’s discretion by law within the meaning of the APA . . . ”. Minnesota PIRG v. Butz, 498 F.2d 1314, 1320 (8th Cir. 1974).
. See, e. g., Conservation Society of Southern Vermont, Inc. v. Sec’y. of Transportation, 508 F.2d 927 (2d Cir. 1974); Scientists’ Institute for Public Information v. Atomic Energy Comm’n., 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973). In Conservation Society the Second Circuit upheld a lower court order requiring that within six months from the issuance by the Federal Highway Administration of a project EIS — dealing with the construction of twenty miles of highway — the agency was required to prepare a statement covering the development of the entire 280-mile corridor which might embrace the smaller stretch. The court agreed that the broader EIS should be prepared even though the ultimate construction of a superhighway of which the segment would be a part could be characterized only as a “long-range goal” or “expectation” and even though no actual plans for its construction existed.
In a recent opinion of this court, Scientists’ Institute has been described as “the leading case analyzing NEPA’s ‘irreversible commitment’ language.” Friends of the Earth, et al. v. Coleman, etc., 513 F.2d 295 (9th Cir. 1974). According to the court:
[Scientists’ Institute] held that an EIS had to be submitted prior to commencement of a massive research and development program for breeder reactors. The court looked to the nature ■ of the contemplated “research and development” program, which involved test projects and massive expenditures for the development and improvement of nuclear energy technology. The court concluded that the decision to go ahead with the “R & D” phase of AEC’s proposed program would also effectively commit the agency to that program’s subsequent implementation phase. Given the long lead time generally associated with the development of energy resources, the decision to implement the program’s first phase would in reality foreclose reliance upon alternative energy sources to satisfy additional demand for energy in the future. (At p. 299).
This court, however, rejected the contention that the case before it fell within the Scientists’ Institute rationale; two environmental organizations were attacking the decision to obtain fill for the construction of a highway segment from the site of a Peripheral Canal, proposed as part of the California Water project. The court held that while the presence of the highway fill excavations would most likely determine the path of the Peripheral Canal if it were built, this did not provide a sufficiently significant nexus to the highway excavations to warrant the preparation of an EIS covering the contemplated water transfer project before permitting highway construction to continue.
. Trout Unlimited v. Morton, 509 F.2d 1276, 1284 (9th Cir. 1974).
. According to the EIS, “It is the stated intent of Westmoreland Resources to mine Sarpy Creek coal and market it at midwestem power plants primarily along or near the Mississippi River. The plants furnish electrical power to customers of four midwestern utility companies located in the States of Iowa, Minnesota, Wisconsin, Illinois and South Dakota.” EIS at 6.
. Although failure to comply with NEPA will ordinarily call for an injunction halting the challenged action until the Act’s requirements are met, in unusual circumstances an application of traditional equitable principles may justify denial or limitation of injunctive relief. See Alpine Lakes Protection Society v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975). We have concluded that in the peculiar circumstances of this case it would not be appropriate to enjoin operations under the five-year mining plan on the 770-acre tract. An EIS adequate in all respects except failure to consider the total project was prepared and considered in conjunction with the decision to approve the five-year plan for the 770-acre tract. The determination to approve this plan involved a properly informed evaluation of the decision to commit these coal resources for removal. As noted supra, the EIS adequately discussed the alternative of no mining, and there is no suggestión that the proper officials failed to give due consideration to this alternative. So long as Westmoreland’s investments and commitments are not considered in determining whether to approve either the leases themselves or any future mining plans, no NEPA policy would be served by halting operations under the five-year plan on the 770-acre tract. For these reasons we have concluded that an injunction against the approved mining on the 770-acre tract would be punitive, rather than remedial. See Hartford-Empire Co. v. United States, 323 U.S. 386, 435, 65 S.Ct. 373, 89 L.Ed. 322 (1945).
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OPINION
O’SCANNLAIN, Circuit Judge:
We must decide, among other things, whether the City of Colton, California, can recover response costs under the Comprehensive Environmental Response, Compensation, and Liability Act allegedly incurred as a result of perchlorate contamination in its water supply.
I
A
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) “is a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites.” Key Tronic Corp. v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). Under CERCLA section 107(a), 42 U.S.C. § 9607(a), a private party may “recover expenses associated with cleaning up contaminated sites.” United States v. Atl. Research Corp., 551 U.S. 128, 131, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007).
To establish a prima facie claim for recovery of response costs under section 107(a), a private-party plaintiff must demonstrate:
(1) the site on which the hazardous substances are contained is a “facility” under CERCLA’s definition of that term, Section 101(9), 42 U.S.C. § 9601(9); (2) a “release” or “threatened release” of any “hazardous substance” from the facility has occurred, 42 U.S.C. § 9607(a)(4); (3) such “release” or “threatened release” has caused the plaintiff to incur response costs that were “necessary” and “consistent with the national contingency plan,” 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B); and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a).
Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 870-71 (9th Cir.2001) (en banc) (“Carson Harbor I”) (internal quotation marks omitted). Only the third element — whether the response costs were necessary and consistent with the national contingency plan (“NCP”) — is at issue in this appeal.
Response costs are considered necessary when “an actual and real threat to human health or the environment exist[s].” Id. at 871. Response costs are considered consistent with the NCP “if the action, when evaluated as a whole, is in substantial compliance” with it. 40 C.F.R. § 300.700(c)(3)(i). The NCP “specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency (EPA) pursuant to CERCLA § 105.” Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 n. 2, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004); see also 40 C.F.R. Pt. 300 (codifying the NCP). “It is designed to make the party seeking response costs choose a cost-effective course of action to protect public health and the environment.” Carson Harbor Village LTD. v. County of Los Angeles, 433 F.3d 1260, 1265 (9th Cir.2006) (“Carson Harbor II ”) (internal quotation marks omitted).
B
The City of Colton (“Colton”) draws its water supply from the Rialto-Colton groundwater basin (“Basin”) in San Bernardino County, California. In 1997, Col-ton began monitoring its municipal supply wells for perchlorate contamination. By 2002, Colton had detected perchlorate in three of its wells in concentrations ranging from about 4 to 10 micrograms per liter (“jjtg/L”). At the time, the California Department of Health Services (“CDHS”), which regulates water quality, had an “advisory action level” for perchlorate of 4 µg/L. CDHS informed Colton that because “the perchlorate action level is an advisory action level, and thus, not enforceable,” the three impacted wells “may continue to be used to supply the system.” Nevertheless, in a closed-session meeting between its City Council and City Attorney, Colton adopted a policy of prohibiting the use of water with perchlorate levels above 4 µg/L. Pursuant to this policy, Colton took the impacted wells out of service and instituted a wellhead treatment program to eliminate the perchlorate in 2003.
C
In 2005, Colton filed suit against numerous entities that had engaged in industrial activities in the Basin over the years, alleging that they caused the release of perchlorate into the groundwater. In its third amended complaint, filed in December 2005, Colton alleged that it had spent $4 million to investigate the contamination and to implement the wellhead treatment program. Colton asserted claims for cost recovery and contribution under CERCLA, 42 U.S.C. §§ 9607(a), 9613(f); a claim for declaratory relief as to liability for future costs under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; and various claims under state law.
Numerous defendants filed a motion for summary judgment, arguing that Colton could not recover its wellhead treatment program costs under CERCLA. In its opposition, Colton argued that the defendants were liable for not only its wellhead treatment program costs, but also costs associated with a future Basin-wide cleanup estimated to cost between $55 and $75 million. The district court granted summary judgment for the defendants on Colton’s federal claims and declined to exercise supplemental jurisdiction over Col-ton’s state law claims. The district court held that Colton could not recover its costs associated with the wellhead treatment program because it failed to show that such costs were necessary'and consistent with the NCP; furthermore, because Colton could not show that it was entitled to recover any of its past costs, its claim for declaratory relief as to its future costs necessarily failed. Colton timely appealed.
II
Colton first seeks reversal of the district court’s summary judgment denying recovery of its past response costs. Colton challenges the district court’s conclusion that the wellhead treatment program was unnecessary because there was no immediate threat to the public health or environment. See 42 U.S.C. § 9607(a)(4)(B). Colton concedes, however, that it failed to comply with the national contingency plan in its past response action. Because Colton’s concession is a sufficient ground upon which to affirm the summary judgment with respect to past response costs, we decline to review the merits of the district court’s conclusion that such costs were unnecessary. See Dorsey v. Nat’l Enquirer, Inc., 973 F.2d 1431, 1438 (9th Cir.1992).
Ill
Colton also contends that the district court erred in granting summary judgment denying its claim for declaratory relief as to its future response costs.
A
Before addressing the merits of the claim, we turn to the parties’ various jurisdictional arguments.
1
The parties dispute whether Col-ton’s claim for declaratory relief is ripe. “The constitutional ripeness of a declaratory judgment action depends upon whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” In re Coleman, 560 F.3d 1000, 1005 (9th Cir.2009) (internal quotation marks omitted).
In Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 (9th Cir.1986), we held that a claim for declaratory relief as to CERCLA liability is ripe when the “essential fact establishing [the plaintiffs] right to declaratory relief — the alleged disposal of hazardous substances ... — has already occurred.” Id. at 893. Later, in In re Dant & Russell, Inc., 951 F.2d 246 (9th Cir.1991), we held that a claim for cost recovery and declaratory relief under CERCLA becomes ripe only after plaintiffs “spend some money responding to an environmental hazard.” Id. at 249. Finally, in Boeing Co. v. Cascade Corp., 207 F.3d 1177 (9th Cir.2000), we held that a claim for declaratory relief for contribution under CERCLA section 113 is ripe when “[t]he pollution has been carefully studied, the parties litigated a genuine controversy about millions of dollars they had already spent, and the facts bringing about their relative responsibility have already occurred.” Id. at 1192.
None of these cases imposed any requirement that a party incur recoverable- — i.e., necessary and NCP-compliant— response costs before its claim for declaratory relief is ripe. Indeed, our cases make clear that so long as there has been a release of hazardous substances, and the plaintiff spends some money responding to it, a claim for declaratory relief is ripe for review. Accord Cal. ex rel. Cal. Dep’t of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 668 n. 4 (9th Cir.2004) (explaining in dicta that “[a]s soon as[the plaintiff] expended its first dollar, it could have sued [the defendant] for this dollar and sought a declaratory judgment of[defendant’s] liability for future response costs”).
Here, the facts establishing Col-ton’s right to declaratory relief have already occurred because there is no dispute that there is perchlorate contamination of the Basin. Moreover, there is no dispute that Colton has incurred costs in responding to the contamination, and that Colton will incur additional costs in the future. The only dispute is whether Colton is entitled to recover these costs, which goes to the merits, not justiciability. Because this controversy cannot be deemed “remote and hypothetical,” Wickland Oil, 792 F.2d at 893, we conclude that Colton’s claim for declaratory relief is ripe.
2
We next turn to the argument that Colton has mooted this appeal by filing a substantially new action in the same district court. “A ease is moot on appeal if no live controversy remains at the time the court of appeals hears the case.” NASD Dispute Resolution, Inc. v. Judicial Council of State of Cal., 488 F.3d 1065, 1068 (9th Cir.2007). The test for mootness is “whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor.” Id. (internal quotation marks omitted).
The defendants argue that Colton has effectively redressed the injury it seeks to remedy with this appeal— namely, the district court’s dismissal of its declaratory relief claim — by filing a new action seeking the same relief. Therefore, our reinstatement of such claim would be superfluous. However, “[t]here is a recognized defense to a claim of mootness in the appellate context when a party can demonstrate that a lower court’s decision, if allowed to stand, may have collateral consequences adverse to its interests.” Connectu LLC v. Zuckerberg, 522 F.3d 82, 88 (1st Cir.2008). Here, Colton faces a potential statute of limitations bar with respect to its claims against certain defendants, an argument these defendants have pressed in the later-filed action. A reversal by this court could put Colton on better footing with regard to limitations defenses, which “is a collateral consequence of the type that suffices to defuse a claim of mootness.” Id. at 89. We therefore conclude that this appeal is not moot.
3
Finally, we consider whether the district court’s disposal of Colton’s CERCLA past response cost-recovery claims deprived the court of subject matter jurisdiction over the declaratory relief claim.
“It is well settled that the Declaratory Judgment Act does not itself confer federal subject matter jurisdiction but merely provides an additional remedy in cases where jurisdiction is otherwise established.” Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 280 (9th Cir.1988) (internal quotation marks and citation omitted). “Any non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that claim is later dismissed on the merits.” Cement Masons Health & Welfare Trust Fund for N. Cal. v. Stone, 197 F.3d 1003, 1008 (9th Cir.1999).
Here, Colton’s declaratory relief claim is predicated on CERCLA, a federal statute providing a private right of action. Colton’s nonfrivolous assertion of a CERCLA declaratory relief claim is therefore sufficient to confer federal subject matter jurisdiction, regardless of the district court’s conclusion that Colton’s CERCLA past response cost-recovery claims lacked merit.
B
Turning to the merits, we note that the district court held that because it was granting summary judgment on the section 107 cost-recovery claims, “Defendants are entitled to summary judgment in their favor on Plaintiffs ... claim for [declaratory] relief as well.” Colton argues that its failure to incur recoverable response costs in the past has no bearing on whether it will incur such costs in the future. Therefore, Colton contends that it should still be allowed to seek declaratory relief as to liability for its future costs.
Whether a CERCLA plaintiffs failure to establish liability for its past costs necessarily dooms its bid to obtain a declaratory judgment as to liability for its future costs appears to be an issue of first impression in this circuit. Our sister circuits have taken divergent approaches to this issue. Some have held or suggested that recoverable past costs are a sine qua non for declaratory relief under CERCLA. See, e.g., Trimble v. Asarco, Inc., 232 F.3d 946, 958 (8th Cir.2000), overruled, on other grounds by Exxon Mobil Corp. v. Allapattah Sens., Inc., 545 U.S. 546, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005); Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 92 (2d Cir.2000) (per curiam); United States v. Occidental Chem. Corp., 200 F.3d 143, 153-54 (3d Cir.1999). Others have held or suggested that declaratory relief may be available even in the absence of recoverable past costs. See, e.g., United States v. Davis, 261 F.3d 1, 46 (1st Cir.2001); County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1513 (10th Cir.1991) (per curiam).
1
The text of the Declaratory Judgment Act provides, in relevant part, that “[i]n a ease of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). CERCLA also contains a provision for declaratory relief. Section 113(g)(2) provides that in any initial cost-recovery action under section 107, “the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages.” 42 U.S.C. § 9613(g)(2).
Although Colton’s complaint referred to the Declaratory Judgment Act rather than CERCLA section 113(g)(2), the latter provision clearly governs this initial cost-recovery action. Because “a precisely drawn, detailed statute preempts more general remedies,” Hinck v. United States, 550 U.S. 501, 506, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) (internal quotation marks omitted), we must consider whether Colton was entitled to declaratory relief under CERCLA’s more detailed declaratory relief provision. See A. Shapiro & Sons, Inc. v. Rutland Waste & Metal Co., 76 F.Supp.2d 82, 88 (D.Mass.1999) (declining “to permit an indirect approach to declaratory relief [under the Declaratory Judgment Act] when the direct CERCLA-based approach ... is unavailable”).
The declaratory judgment mandated by section 113(g)(2) pertains to “liability for response costs.” 42 U.S.C. § 9613(g)(2). Such “liability for response costs” must refer to the response costs sought in the initial cost-recovery action, given that the sentence later refers to “any subsequent action or actions to recover further response costs.” Id. (emphases added). Therefore, if a plaintiff successfully establishes liability for the response costs sought in the initial cost-recovery action, it is entitled to a declaratory judgment on present liability that will be binding on future cost-recovery actions.
Here, Colton has failed to establish present liability because of its conceded failure to comply with the NCP but seeks a declaratory judgment on future liability. Section 113(g)(2), however, does not provide for such relief. “[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Transam. Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). In section 113(g)(2), Congress specified a mechanism whereby a declaration of liability for costs already incurred has preclusive effect in future proceedings as to costs yet to be incurred. If Congress had intended for a declaration of future liability to be available,- it could have provided that “the court shall enter a declaratory judgment on liability for further response costs.” That it did not leads us to conclude that declaratory relief is available only if liability for past costs has been established under section 107.
2
Colton would have us bypass the initial liability determination to further “CERCLA’s goal of encouraging private parties to clean up hazardous sites.” According to Colton, denying declaratory relief “would discourage private parties from taking future actions to clean up hazardous sites if they failed to comply with the NCP in taking past cleanup actions.” CERCLA’s goal, however, is not simply to encourage private response, but rather to “make the party seeking response costs choose a cost-effective course of action to protect public health and the environment” and to achieve “a CERCLA-quality cleanup.” Carson Harbor II, 433 F.3d at 1265 (internal quotation marks omitted). Providing declaratory relief based on mere assurances of future compliance with the NCP would create little incentive for parties to ensure that their initial cleanup efforts are on the right track. See Dant & Russell, 951 F.2d at 250(noting that premature relief under CERCLA can create perverse incentives).
Moreover, awarding declaratory relief before a plaintiff has incurred any recoverable costs would undermine the very purpose of declaratory relief, which is to “economize[ ] on judicial time.” PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 616 (7th Cir.1998). A court would have to make complicated determinations as to which defendants are responsible for what proportion of the release, without any assurance that the plaintiff would ever “meet its burden of proving in an adversary proceeding that its expenses were necessary and incurred in a manner consistent with the national contingency plan.” Stanton Road Assocs. v. Lohrey Enters., 984 F.2d 1015, 1021 (9th Cir.1993).
We conclude that CERCLA’s purposes would be better served by encouraging a plaintiff to come to court only after demonstrating its commitment to comply with the NCP and undertake a CERCLAquality cleanup. Upon establishing liability under section 107, the plaintiff can “obtain reimbursement for [its] initial outlays, as well as a declaration that the responsible party will have continuing liability for the cost of finishing the job.” Dant & Russell, 951 F.2d at 249-50. Such a declaration would allow the plaintiff to avoid costly and time-consuming relitigation of liability once it has already been established. See Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 844 (6th Cir.1994) (“Congress included language [in section 113(g)(2) ] to insure that a responsible party’s liability, once established, would not have to be relitigated.... ”). Where, as here, the plaintiff fails to establish section 107 liability in its initial cost-recovery action, no declaratory relief is available as a matter of law.
IV
Colton also appeals from the dismissal of its pendent state law claims. Having disposed of Colton’s federal claims, the district court declined to exercise supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3). “Because the district court did not err in granting summary judgment on the federal claims, it did not abuse its discretion in dismissing the state-law claims.” Bryant v. Adventist Health Sys./W., 289 F.3d 1162, 1169 (9th Cir.2002).
V
For the foregoing reasons, the district court’s summary judgment is AFFIRMED.
. The defendant entities which joined in the motion were the County of San Bernardino, the 1996 Thomas O. Peters and Kathleen S. Peters Revocable Trust, Thomas O. Peters, American Promotional Events, Inc.-West, Pyro Spectaculars, Inc., Astro Pyrotechnics, Inc., Emhart Industries, Inc., Kwikset Locks, Inc., Black & Decker, Inc., Whittaker Corp., and Trojan Fireworks Co.
. Although not all the defendants joined in the motion for summary judgment, the district court sua sponte granted summary judgment in favor of the non-moving defendants.
. The district court also dismissed all counterclaims and cross-claims. Both Goodrich and Pyro Spectaculars, Inc. cross-appealed from the district court's dismissal of these counterclaims and cross-claims. We address the cross-appeals in a memorandum disposition filed concurrently with this opinion.
. Colton contends that if the district court’s holding on the necessity of the response action is allowed to stand, such holding could have a preclusive effect in subsequent litigation. We note, however, that in a future action, Colton could argue that our reliance on the NCP compliance holding alone vitiates any preclusive effect of the district court's necessity holding. See, e.g., Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 754 (2d Cir.1996) ("It is a well-established principle of federal law that if an appellate court considers only one of a lower court’s alternative bases for its holding, affirming the judgment without reaching the alternative bases, only the basis that is actually considered can have any preclusive effect in subsequent litigation.”); see also Restatement (Second) of Judgments § 27, cmt. o (1982).
. The second action filed by Colton, No. 06-01319, was eventually dismissed without prejudice. Colton then filed a third action, No. 09-01864, which is currently pending in the district court. It is this third action to which we refer.
. We reject the argument that Colton is judicially estopped from arguing that there is subject matter jurisdiction. It is well established that subject matter jurisdiction cannot be expanded or contracted "by prior action or consent of the parties.” Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 95 L.Ed. 702 (1951).
. Contrary to the defendants’ assertion, Col-ton did not waive this argument by failing to raise it below. In opposition to summary judgment, Colton argued that "it was not required to complete all tasks required by the NCP prior to the filing of the complaint,” and that "so long as [it] has incurred at least nominal response costs,” it could "invoke the declaratory relief provision of CERCLA to recover its future costs,” even if "it is still too early to know how Colton will comply with the NCP.” This is the same argument it now makes on appeal.
. We grant the outstanding motions for judicial notice.
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ENGEL, Senior Circuit Judge.
This is an appeal by the State of Michigan from the entry of a consent decree between the United States Environmental Protection Agency (“EPA”) and twelve defendants pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), 42 U.S.C. § 9601 et seq. The consent decree would require the defendants, or potentially responsible parties (“PRPs”), to engage in remedial work to clean up a hazardous waste site in Rose Township, Oakland County, Michigan (“Rose Site”). The proposed remedial plan at the Rose Site calls for the excavation and incineration of surface soils contaminated with po-lychlorinated biphenyls (“PCBs”), lead, arsenic and other toxic materials and the flushing of the subsurface soils contaminated with a variety of volatile and semi-volatile organic compounds.
The state challenges the legality of the remedial action, and seeks to prevent entry of the consent decree. The Natural Resources Defense Council, the Environmental Defense Fund and the Sierra Club have filed a brief as amici curiae supportive of the state’s position. The majority of the state’s and amici’s objections to the decree focus on the effectiveness of soil flushing at the Rose Site, where layers of clay are interspersed among beds of sand and silt. The PRPs cross appeal the district court’s determination that the decree must comply with Michigan’s groundwater anti-degradation law.
I. STATUTORY OVERVIEW
By the late 1970s, Congress concluded that existing cleanup programs were inadequate to the task of taking care of literally thousands of sites across the country posing a serious threat to public health and the environment. Consequently, in 1980, Congress enacted CERCLA, also known as “Superfund,” to ensure prompt and efficient cleanup of hazardous waste sites and to place the costs of those cleanups on the PRPs. See S.Rep. No. 848, 96th Cong., 2d Sess. 98, reprinted in, 1 Cong. Research Serv., 97th Cong., 2d Sess., A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Superfund), at 405 (1980).
Throughout the 1980s, the Superfund hazardous waste cleanup program enjoyed centerstage prominence in environmental law. Nevertheless, the early years of CERCLA were difficult. CERCLA was a hastily-assembled bill which contained a number of technical flaws due to Congress’ limited understanding of the hazardous waste problem and its effects on the environment. See Grad, A Legislative History of the Comprehensive Environmental Response, Compensation and Liability (“Superfund”) Act of 1980, 8 Co-lum.J.Envtl.L. 1, 2, 34 (1982). Both Congress and EPA, for example, believed in the late 1970s that a site could be adequately cleaned up by “scraping a few inches of soil off the ground.” H.R.Rep. No. 253, 99th Cong., 2d Sess., pt. 1, at 54 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2836. Congress also grossly underestimated the number of sites requiring cleanup and the monies necessary to remedy the problem. Compare id. with H.R.Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 18-20 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 6119, 6120-23. EPA, as the delegatee of the President’s authority under CERCLA, 42 U.S.C. § 9615, was criticized for the slow pace of cleanups, for failing to provide remedies that would protect public health and the environment, and for alleged “sweetheart” deals that reduced cleanup costs for industry at public expense. As a result, in 1986 Congress passed SARA, which reauthorized and amended CERCLA in several important ways. Congress sought to better define cleanup standards, to expand resources available to EPA for investigations and cleanups, to clarify EPA’s authority under Superfund law, and to expand and clarify the states’ role in any remedial action undertaken, or ordered, by EPA.
CERCLA applies “primarily to the cleanup of leaking inactive or abandoned sites and to emergency responses to spills.” F. Anderson, D. Mandelker & A. Tarlock, Environmental Protection Law and Policy 568 (1984). The Act directs EPA to develop a National Priorities List (“NPL”) for response priority purposes. 42 U.S.C. § 9605(a). After a site is placed on the NPL, a Remedial Investigation and Feasibility Study (“RI/FS”) is performed to define the nature and extent of the threat posed by the release and to evaluate proposed remedies. 42 U.S.C. §§ 9604, 9622; 40 C.F.R. § 300.68(d). Once EPA determines under CERCLA that a response action is needed at a particular hazardous waste site, it must publish a proposed remedial action plan (“RAP”) and provide an opportunity for comment. 42 U.S.C. § 9617. EPA then issues a Record of Decision (“ROD”) setting forth the remedy selected for the site, including remedial technologies and cleanup standards. 42 U.S.C. § 9617.
In implementing its RAP, EPA may pursue one of three possible courses of action. See generally Koppers Indus., Inc. v. EPA, 902 F.2d 756, 757 n. 1 (9th Cir.1990) (discussing the various options). EPA may undertake a response measure on its own, which may include removal and/or remedial action, and then sue PRPs it can find for reimbursement. 42 U.S.C. §§ 9604, 9607. In the interim, or in the event it cannot locate any PRPs or they cannot be made to pay the cleanup costs, the government-initiated cleanup may be financed by the “Superfund,” 42 U.S.C. § 9611, a trust fund derived from general federal revenues and an excise tax on specified chemicals. See 42 U.S.C. § 9631. Secondly, EPA may, independent of fund-financed response ae-tions, issue an administrative order directing PRPs to implement removal or remedial action. 42 U.S.C. § 9606. Alternatively, EPA may apply to the district court for an injunction to compel PRPs to clean up or abate an actual or threatened release of hazardous substances from a facility. Id. As a third option, EPA may enter into an agreement with PRPs to perform a response action, 42 U.S.C. § 9622. Such an agreement is at issue here.
The federal legislative scheme and its history are persuasive that Congress did not intend to leave the cleanup under CERCLA solely in the hands of the federal government. CERCLA, as amended by SARA, provides a substantial and meaningful role for the individual states in the selection and development of remedial actions to be taken within their jurisdictions. In this case for example, pursuant to 42 U.S.C. § 9621(f) the State of Michigan had a reasonable opportunity to comment on the RI/FS, the RAP proposed in the amended ROD, and other technical data related to the implementation of the proposed remedy. The state was also entitled to and did participate in the settlement negotiations that led to the decree at issue. Id. Further, CERCLA is designed to accommodate more stringent “applicable or relevant and appropriate requirements” (“ARARs”), i.e. environmental standards of the state in which a site is located. 42 U.S.C. § 9621(d). Once a consent decree is proposed by EPA, see id. § 9622(a), the state can challenge it if EPA has proposed implementation of a remedy for which the federal agency has waived a valid and more stringent state requirement. Id. § 9621(d)(4), (f)(2)(B). The state may also enforce a decree to the extent the remedial action fails to comply with any state environmental requirements which have not been waived by EPA. Id. § 9621(e).
If no PRPs can be located, or if they are insolvent, a state or political subdivision may enter into a contract or cooperative agreement with EPA, whereby both may take action on a cost-sharing basis. 42 U.S.C. § 9604(c), (d). A state may also sue PRPs for remedial and removal costs if such efforts are consistent with the National Contingency Plan (NCP). Id. § 9607(a)(4)(A). However, assuming it is not the “lead” agency, the state is limited in its ability to require alternative relief if and when a consent decree is entered into between PRPs and EPA. See id. § 9621(f).
Under CERCLA, Congress expressed its preference for thorough yet cost-effective remedies at hazardous waste sites. Compare 42 U.S.C. § 9621(a) (“the President shall select appropriate remedial actions ... which provide for cost-effective response.”) with 42 U.S.C. § 9621(b) (“Remedial actions in which treatment which permanently and significantly redress the volume, toxicity or mobility of the hazardous substances ... are to be preferred over remedial actions not involving such treatment.”). CERCLA’s statutory scheme and legislative history reflect two other principal and related concerns:
First, Congress intended that the federal government be immediately given the tools necessary for a prompt and effective response to problems of national magnitude resulting from hazardous waste disposal. Second, Congress intended that those responsible for problems caused by the disposal of chemical poisons bear the costs and responsibility for remedying the harmful conditions they created.
United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1112 (D.Minn.1982). These concerns must be kept in mind as we analyze the challenges to the consent decree.
II. FACTS
The Rose Site consists of about 110 acres on which liquid and solid industrial wastes were illegally dumped in the late 1960s. In 1979, the Michigan Toxic Substance and Control Commission declared a toxic substance emergency at the Site, and 5,000 drums of toxic waste were immediately removed. Investigation disclosed that the drums contained, among other chemical compounds, PCBs, phthalates, organic solvents, oil and grease, phenols and heavy metals. In 1983, the Rose Site was placed on the NPL.
All sites placed on the NPL must undergo a Remedial Investigation and Feasibility Study (“RI/FS”) to determine the extent of contamination and possible remedies. 42 U.S.C. § 9620(e)(1). Under a cooperative agreement with EPA, the Michigan Department of Natural Resources (“MDNR”) began the RI/FS evaluation of the Rose Site in 1984. That study, completed in June of 1987, showed two primary areas of contamination: (1) an area which is less than one acre in size but contains groundwater contaminated by vinyl chloride and surface soils having elevated levels of arsenic; and (2) twelve acres in the southwest corner of the Site that contain surface soils contaminated with PCBs, lead, arsenic and other toxic metals; subsurface soils contaminated with a variety of volatile organic compounds (“VOCs”) and semi-volatile organic compounds (“SVOCs”); and groundwater contaminated with PCBs, metals, VOCs and SVOCs.
A. The RI/FS and the Original ROD
After a detailed screening of possible remedies, the 1987 RI/FS recommended excavation and on-site thermal destruction to remedy the soil contamination, plus ground water treatment to cleanse the water under the Rose Site. Soil flushing, a method by which the contaminated soil is flushed with water and the resulting flus-hate is treated to designated cleanup levels and reinjected into the soil, was found to be ineffective at this Site due to the variable permeability of the Rose Site soils. RI/FS, Exh. 3.1a, Table 9-1, at 146.
Pursuant to section 117(a) of CERCLA, 42 U.S.C. § 9617(a), which requires that the public be given a reasonable opportunity to comment on a proposed cleanup, EPA published a notice of the remedy and held a public meeting near the Site. In September 1987, EPA issued a Record of Decision (“ROD”), setting forth its proposed remedy as recommended in the RI/FS. The State of Michigan concurred in the ROD, which required, among other steps:
(1) Excavation of approximately 50,000 cubic yards of contaminated soil, incineration of the excavated soils that were contaminated with PCBs, VOCs and SVOCs, and proper treatment and disposal of the resulting incinerated ash; and
(2) Extraction and on-site treatment of contaminated ground water with diversion to adjacent marshlands or an alternate location.
The 1987 ROD issued by EPA included a detailed explanation of the reasons for selecting the proposed remedy, and included specific findings that the remedy satisfied the requirements of CERCLA, complied with federal and state ARARs, and was cost effective. Soil flushing, though not adopted in the 1987 ROD, was not ruled out completely. The ROD listed eight criteria EPA would consider before substituting soil flushing for thermal incineration: economies of scale, community acceptance, cleanup time, land regulations, reliability of soil flushing, implementability, complete site remediation, and cost effectiveness.
B. The Proposed Consent Decree
In June of 1987, shortly before issuance of the original ROD, EPA began settlement negotiations with the PRPs. The State of Michigan participated in these discussions. In the course of the negotiations, EPA was persuaded that the soil flushing method might be a viable, less costly alternative to the incineration of the VOC/SVOC contaminated soil, and could still result in a cleanup that would comply with all federal and state ARARs.
In August of 1988, EPA and the twelve PRPs who are defendants in this action signed the consent decree which included a soil flushing remedy for the site. While under the original plan 50,000 cubic yards of contaminated soil were to be incinerated, the consent decree calls for incineration of only half that amount, augmented by soil flushing for the remaining 25,000 cubic yards. In economic terms this is represented as effecting savings of roughly $12 million. To offset the danger that this process might be insufficient, the decree requires the PRPs to prove, both in a laboratory and at the Rose Site, that soil flushing is capable of meeting Phase I water target cleanup levels (“TCLs”) for the subsurface soils contaminated with VOCs and SVOCs within ten years after implementation of the system. Absent such proof, the PRPs would be required to fund and implement an alternate, permanent remedy designed to meet Phase I TCLs. Under the proposed consent decree, EPA is required to review the remedial action at the site at least every five years, and is permitted to seek further response action from the defendants if EPA determines that supplemental remedies are necessary. The settling defendants are also required to provide EPA with monthly progress reports, and are subject to fines for failure to provide the reports or for delays in the implementation of the proposed remedial action.
The consent decree retains a requirement that PCBs above 10 parts per million (p.p.m.). at the Rose Site be incinerated either on-site or off-site, but as noted above, it does not incorporate the original remedial action plan’s requirement for incineration of all of the otherwise-contaminated soil. Under the decree, the settling defendants would be required to:
(1) Implement supplemental hydrogeo-logical studies regarding well placement, aquifers, permeability and porosity of unsaturated soil, placement of water extraction systems and characteristics of the soil;
(2) Install and maintain a ground water monitoring program;
(3) Excavate and incinerate all soils at the site containing PCBs in excess of 10 p.p.m.;
(4) Treat and bury soils containing lead in excess of 70 p.p.m.;
(5) Install and maintain a ground water extraction/treatment system that includes air stripping and carbon adsorption;
(6) Locate and treat wetlands on the site that contain PCBs in concentrations greater than 10 milligrams per kilogram;
(7) Construct and maintain a six-foot chain link fence around the site;
(8) Install and maintain a soil flushing system designed to remedy VOC and SVOC contaminated subsurface soil and, if the system proves ineffective, to submit within six months an alternate remedy; and
(9) Prepare the soil flushing plan; see details supra.
In consideration of the work to be performed and the payments to be made by the settling defendants, the United States agrees in the proposed consent decree not to sue them, with some exceptions, for claims available under sections 106 and 107 of CERCLA and other federal and state environmental laws which are based on facts about the Site and its contamination known to EPA at the time of the entry of the decree. The covenant does contain reopening provisions which would allow EPA to seek further injunctive relief or cost recovery if conditions unknown until after entry of the decree reveal that the remedial action is not protective of human health and the environment. See Consent Decree XVII.
C. Proceedings in the District Court and the Amended ROD
In September of 1988, EPA filed the proposed consent decree with the U.S. District Court for the Eastern District of Michigan pursuant to 42 U.S.C. § 9622(d)(1)(A). As required by 42 U.S.C. § 9622(d)(2) and 28 C.F.R. § 50.7, notice of the proposed consent decree was published in the Federal Register on September 26, 1988. At the same time, EPA published a three page document entitled Proposed Settlement Plan — Explanation of Significant Differences (“ESD”). The ESD was published to comply with section 9617(c), which requires EPA to explain why a settlement or consent decree to which the agency agrees differs in any significant respect from the final plan or ROD previously issued for a particular site. In this case the ESD explained the basis for the decision to allow defendants to try soil flushing at the Rose Site in conjunction with incineration, when the 1987 ROD had called for soil incineration only.
As required by 42 U.S.C. § 9617(a), EPA provided a period for public comment on the proposed changes to the ROD. EPA received written comments from the Michigan Department of Natural Resources and the Michigan Toxic Substances Control Commission, two congressmen, two private environmental organizations (the Environmental Defense Fund and the Michigan Environmental Council), several residents of Rose Township, and the settling defendants. Only the comments from the settling defendants expressed support for the terms of the consent decree.
Those who objected to soil flushing were concerned that it was not a well-demonstrated technology, especially in Michigan’s cold weather climate; that flushing may take as long as fifteen years to clean up the site as opposed to two years for incineration; that monitoring of soil flushing’s effectiveness is extremely difficult, and that flushing may violate Michigan’s groundwater anti-degradation laws. There were also concerns that the consent decree did not adequately define defendants’ obligations in the event soil flushing failed to achieve established cleanup levels within the required time frame.
The settling defendants asserted that the proposed consent decree would protect human health and the environment, and included a study by the Gradient Corporation, an environmental consulting firm, which estimated that approximately 12,325 pounds of organic chemicals would be removed by the soil incineration method and that approximately 12,234 pounds of organic chemicals would be removed by the soil flushing method. The study added that the two amounts would be even closer in volume than this, because an additional amount of soil that was not to be incinerated under the original remedy would be subjected to soil flushing under the consent decree.
On January 18, 1989, after considering the comments received, EPA issued an amended ROD for the Rose Site. The amended ROD formally adopts soil flushing as a remedy for VOC and SVOC-eon-taminated subsurface soils, but only if pilot testing proves that flushing is as protective as thermal destruction. In adopting the remedy it originally ruled out, EPA reasons that (1) the excavation of PCB contaminated soils will remove most of the un-flushable contaminants; (2) the geology of the contaminated area may not be as complex as initially thought; and (3) pilot testing has not yet been performed to rule out soil flushing. EPA, in the amended ROD, further asserts that (1) if Phase II target cleanup levels are achieved, flushing will have done as well as incineration was required to do under the original ROD, and will have brought the Site into compliance with all federal and state ARARs; (2) flushing is more cost effective than incineration; (3) assuming the groundwater treatment system uses granular activated carbon to capture the contaminants, soil flushing will satisfy CERCLA’s preference for remedies utilizing permanent and innovative treatments; and (4) soil flushing will reduce toxicity, mobility, and the volume of contaminants to the same extent as thermal destruction.
The State of Michigan filed a complaint with the district court and moved to intervene in the action between EPA and the settling defendants on February 14, 1989, pursuant to 42 U.S.C. § 9621(f)(2)(B). This provision allows a state to challenge a proposed consent decree which allegedly fails to meet the state’s environmental protection standards. On May 4, 1989, the U.S. District Court held that Michigan could intervene in order to challenge entry of the consent decree.
On June 8, 1989, Michigan filed a brief opposing entry of the consent decree, and appended the affidavit of Robert A. Hayes, in which Mr. Hayes discussed his scientific evaluation of soil permeability and the possible ineffectiveness of flushing at the Rose Site. The U.S. District Judge declined to consider the affidavit, as well as a memorandum drafted and submitted by EPA, concluding that the court’s review was limited to the administrative record as that record existed at the time EPA amended the ROD. The district court did grant the motion of the Natural Resources Defense Council, the Environmental Defense Fund, and the Sierra Club to file a brief with the court as amici curiae, and their brief objecting to the entry of the consent decree was filed on June 30, 1989.
On July 18, 1989, one day after oral argument, the district court granted EPA’s motion for entry of the consent decree. The State of Michigan moved for a rehearing, requesting the district court to remand to EPA or to grant an evidentiary hearing to determine whether the amended ROD complies with Michigan’s ARARs. The court denied this motion when it issued a final Memorandum Opinion and Order on August 9, 1989, approving the decree and ordering its enforcement. United States v. Akzo Coatings of America, Inc., 719 F.Supp. 571 (E.D.Mich.1989).
In its opinion, the district court held that Michigan’s groundwater anti-degradation law does represent an ARAR for purposes of CERCLA, but found that the consent decree embodying a soil flushing remedy did not violate the state ARAR. The court found that Michigan’s concerns about the complex geology of the Site had been adequately addressed by EPA, and observed that soil flushing had been used, with state approval, at other Michigan sites. The district court concluded that, on the administrative record, EPA’s decision to enter into the consent decree was not arbitrary or capricious, and was reasonable, fair and not contrary to relevant federal and state laws. In addition, the district court held that CERCLA’s provisions allowing EPA to settle claims for remedial action with the PRPs preempted the State of Michigan from imposing additional remedial action requirements on defendants under Michigan’s Water Resources Commission Act, M.C.L.A. § 323.6; Michigan’s Environmental Protection Act, M.C.L.A. § 691.1201 et seq.; and the common law of public nuisance.
III. ISSUES ON APPEAL
The State of Michigan now appeals the entry of the consent decree, and the district court’s finding that CERCLA preempts some of the state’s environmental remedies against these defendants. The PRPs cross-appeal the district court’s finding that Michigan’s anti-degradation law is an ARAR. EPA appears as appellee in this action, and does not challenge the judgment of the district court. The specific issues on appeal are:
A. What is the proper standard of review for consent decrees, and should the court consider supplemental evidence not appearing in the administrative record?
B. Is the consent decree arbitrary and capricious?
C. Is the consent decree fair, reasonable and adequate?
D. Does the consent decree comply with CERCLA’s and Michigan’s applicable environmental provisions?
E. To what extent, if any, does the consent decree preempt state law claims for additional relief?
These issues will be discussed in the order listed above.
IV. THE STANDARD OF REVIEW
A. The Consent Decree and the Administrative Record
We must initially determine whether the district court applied the appropriate standard of review to the consent decree reached by EPA and the PRPs. The State of Michigan argues that the district court should have reviewed the consent decree under a de novo standard, rather than the more lenient arbitrary and capricious standard.
A court’s review process of a response action undertaken by EPA is guided by 42 U.S.C. § 96130, which provides:
(1) Limitation
In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.
(2) Standard
In considering objections raised in any judicial action under this chapter, the court shall uphold the President’s decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.
Under a series of executive orders, the latest of which is codified at 42 U.S.C. § 9615, the functions of the president under CERCLA and SARA are delegated to EPA’s administrator, with the authority to redelegate. EPA entered into the consent decree at issue in this ease under the authority of this provision. CERCLA empowers the President, and those to whom he lawfully delegates authority, to remedy environmental problems such as the one at issue in Rose Township:
In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.
42 U.S.C. § 9606(a).
The State of Michigan argues that the consent decree negotiated between EPA and the PRPs was agreed to, but not “taken or ordered,” as described in section 96130(1), supra, or “selected]” as described in section 96130(2), supra. While these verbs are not defined in the CERCLA statute, we believe EPA, acting on the President’s behalf, did select the chosen remedy embodied in the consent decree, and has ordered that the terms of the agreement be carried out by the PRPs. CERCLA authorizes the President to “remove or arrange for removal of, and provide for remedial action relating to” hazardous substances at a site, or to “take any other response measure” deemed necessary “to protect the public health or welfare or the environment.” 42 U.S.C. § 9604(a). Section 9604(c)(4) authorizes the President to select remedies which will further his efforts to remove these hazardous substances and protect the environment. The statute specifically authorizes the President to enter into consent decrees with PRPs in order to achieve these goals. See 42 U.S.C. § 9622. We find that EPA’s decision to enter into a consent decree does represent a selection by the President of a remedy. As a result, CERCLA’s limitation of judicial review to the administrative record does apply here, and the district court properly declined to engage in a de novo review of the consent decree.
Our finding on this question of the standard of review is consistent not only with the language of CERCLA itself, but also with congressional intent concerning the role of agency expertise, and with the case law that has developed since the enactment of section 9613(j). Ours should not be the task of engaging in a de novo review of the scientific evidence pro and con on each proposed remedy in the hazardous substance arena. The federal courts have neither the time nor the expertise to do so, and CERCLA has properly left the scientific decisions regarding toxic substance cleanup to the President’s delegatee, the EPA administrator and his staff. “When examining this kind of scientific determination ... a reviewing court must generally be at its most deferential.” Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983). Our role, as the CERCLA statute makes clear, is one of review on the administrative record, searching for errors of procedure and for glaring omissions or mistakes which indicate that EPA has acted arbitrarily and capriciously. As the House Report on the SARA amendments notes: “limiting judicial review of response actions to the administrative record expedites the process of review, avoids the need for time-consuming and burdensome discovery, reduces litigation costs, and ensures that the reviewing court’s attention is focused on the criteria used in selecting the response.” H.R.Rep. No. 253, Pt. 1, 99th Cong., 1st Sess. 81 (1985), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2863. When reviewing a consent decree, a court need only “satisfy itself that the settlement is reasonable, fair, and consistent with the purposes that CERCLA is intended to serve.” H.R.Rep. No. 253, Pt. 3, 99th Cong., 1st Sess. at 19 (1985), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 3038, 3042 [hereinafter “H.R.Rep. No. 253, Pt. 3”].
Other courts have viewed this limited, yet important, role as we do. In United States v. Cannons Engineering Corp., 899 F.2d 79 (1st Cir.1990), the circuit court affirmed the district court’s approval of proposed consent decrees reached between EPA and PRPs under CERCLA. The First Circuit stated in that case: “While the district court should not mechanistically rub-berstamp the agency’s suggestions, neither should it approach the merits of the contemplated settlement de novo.” 899 F.2d at 84.
We recognize that one court has found that EPA’s selection of a remedy to clean up a hazardous waste site should be reviewed de novo in the district court. See United States v. Hardage, 663 F.Supp. 1280 (W.D.Okla.1987). However, we believe that court misinterpreted the plain language of CERCLA and the congressional intent behind the statute. The Hardage court found that the environmental plan in that case had not been “selected,” but was merely a proposal which the court, not the President, was in a position to enforce. Therefore, reasoned the court, review of the proposed cleanup plan was not limited to the administrative record by section 9613(j), since the court, not the President, was ordering a remedy.
The Hardage distinction is without merit, and we believe the court improperly engaged in a de novo review of the remedy in that case. “If the Hardage court’s interpretation of the statute is correct, Congress has enacted an unusual statutory scheme, one in which the scope and standard of review seems to hinge on whether EPA formally issues an order for a response plan or merely asks the court to enforce such a plan.” In re Acushnet River & New Bedford Harbor, 722 F.Supp. 888, 892 (D.Mass.1989). Another court has described the Hardage court’s distinctions as “hypertechnical and inconsistent with the plain meaning of the statutory language.” United States v. Bell Petroleum Servs., Inc., 718 F.Supp. 588, 591 (W.D.Tex.1989). We agree with the view that the Hardage distinctions are improper, given 42 U.S.C. § 9621(a)’s description of actions “secured under section 9606” as presi-dentially-selected remedial actions. The President, acting through EPA, does select a remedy when he presents a consent decree for court approval, and the standard of review found in section 9613(j) should apply to such decrees. The consent decree, as a judicial act, requires court approval. However, the court’s role is limited to approval or rejection of the decree, and it remains EPA’s responsibility to select the remedy and to take the steps necessary to bring the decree to the court for approval. We must respect Congress’ intent that the President develop such decrees, and that the courts review them on the administrative record under an arbitrary and capricious standard.
Another case interpreting the standard of review under CERCLA is United States v. Ottati & Goss, Inc., 900 F.2d 429 (1st Cir.1990). There the court held that review of an EPA request for injunctive relief to force several companies to clean up a hazardous waste site was not limited to the arbitrary and capricious standard. The court drew a distinction, with which we agree, between the court’s duty to enforce a “lawful (nonarbitrary) EPA order,” and the court’s discretion to accept or reject a “remedial injunction that EPA (lawfully and nonarbitrarily) decides is proper.” 900 F.2d at 434. As the Ottati & Goss court said, a reviewing court is not required to adopt EPA’s chosen remedy just because EPA believes the remedy is proper. Id.
However, we disagree with that court’s acceptance of the Hardage case’s distinction between remedial actions taken or ordered by the President, and proposed remedies which EPA asks a court to implement. Relying upon the language of section 9606(a), which allows the President to require the Attorney General to secure such relief as may be necessary to abate the danger of a hazardous waste problem, and gives to the district court “jurisdiction to grant such relief as the public interest and the equities of the case may require,” the Ottati & Goss court upheld the district court’s modifications to EPA’s requested injunctive relief. We believe section 9613(j) reflects Congress’ intent that in this highly technical area, decisions concerning the selection of remedies should be left to EPA, and those decisions should be accepted or rejected — not modified — by the district court under an arbitrary and capricious standard. While Congress has directed district courts to “grant such relief as the public interest and the equities of the case may require,” § 9606(a), Congress has also left the crafting of that relief in the hands of qualified experts to whom the President delegates authority. A reviewing court should not attempt to substitute its judgment for the expertise of EPA officials. Ours is the task of searching for errors of procedure, and serious omissions of substantive evidence, not the job of reformulating a scientific clean-up program developed over the course of months or years.
Aside from the Hard,age and Ottati & Goss courts, federal courts have consistently reviewed environmental remedies formulated under CERCLA on the basis of the administrative record under an arbitrary and capricious test. United States v. Wastecontrol of Florida, Inc., 730 F.Supp. 401 (M.D.Fla.1989); In re Acushnet River & New Bedford Harbor, 722 F.Supp. 888 (D.Mass.1989); United States v. Bell Petroleum Servs., Inc., 718 F.Supp. 588 (W.D.Tex.1989); United States v. Seymour Recycling Corp., 679 F.Supp. 859 (S.D.Ind.1987). Some courts, properly relying on the legislative history accompanying the statute, have also applied a three-part test of (1) fairness, (2) reasonableness, and (3) consistency with CERCLA’s goals. See H.R.Rep. No. 253, Pt. 3 at 19, supra. This test is similar to the standards applied before the 1986 SARA amendments. United States v. Conservation Chemical Co., 628 F.Supp. 391, 400 (W.D.Mo.1985); United States v. Seymour Recycling Corp., 554 F.Supp. 1334, 1337-38 (S.D.Ind.1982). Review of consent decrees in our court has generally been conducted under similar standards. See United States v. Jones & Laughlin Steel Corp., 804 F.2d 348, 351 (6th Cir.1986); Williams v. Vukovich, 720 F.2d 909, 920-23 (6th Cir.1983).
We view the standard of fairness, reasonableness and consistency with the statute — our court’s general test for consent decrees — coupled with the arbitrary and capricious standard of section 9613(j), to be the proper tests for EPA’s proposed decree. We apply these tests to the administrative record before us, as did the district court. We must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (applying the arbitrary and capricious test of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)).
Though judicial review of a proposed consent decree under CERCLA must be performed under the arbitrary and capricious test, with an evaluation of the fairness and reasonableness of EPA’s decision, our review must be thorough and penetrating. One court, discussing its role in subjecting scientific evidence to the arbitrary and capricious standard of review has written:
There is no inconsistency between the deferential standard of review and the requirement that the reviewing court involve itself in even the most complex evidentiary matters____ The close scrutiny of the evidence is intended to educate the court. It must understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices open to the agency and those made. The more technical the case, the more intensive must be the court’s efforts to understand the evidence, for without an appropriate understanding of the case before it the court cannot properly perform its appellate function.
Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C.Cir.1975) (en banc). In sum, in evaluating the efforts of an agency charged with making technical judgments and weighing complex data, we must give a proper degree of deference to the agency’s expertise, see Lile v. University of Iowa Hospitals and Clinics, 886 F.2d 157 (8th Cir.1989), yet also ensure that the agency has considered all of the relevant evidence in the record and has acted in the public interest.
B. Evidence Submitted Outside of the Administrative Record
The State of Michigan contends that the affidavit of Robert A. Hayes should have been considered by the district court during its review process. This affidavit was filed with the district court on June 8, 1989. The affidavit indicates that Mr. Hayes is the Senior Hydrogeologist in the Compliance and Enforcement Section of the Environmental Response Division of the Michigan Department of Natural Resources in Lansing, Michigan. He holds bachelors degrees from Wayne State University, and is certified as a Professional Geologist by the American Institute of Professional Geologists. Hayes conducted geophysical tests in March 1989, studying the subsurface soils in six locations at the Rose Site.
The State of Michigan submitted the Hayes affidavit with its brief to the district court, but the court refused to consider the affidavit because it had not been part of the administrative record considered by EPA and the PRPs at the time they drafted and filed the consent decree for the court’s approval on May 4, 1989. The district court held that since its review was limited to the administrative record, no additional supplementary materials could be considered by the court. Akzo Coatings, 719 F.Supp. at 582.
The failure to consider the affidavit was erroneous under the circumstances of this case. The district court allowed the State of Michigan to intervene in this action for entry of the consent decree on May 4, 1989, pursuant to Fed.R.Civ.P. 24 and 42 U.S.C. § 9621(f)(2)(B). The affidavit was filed the following month. CERCLA specifically provides that the State in which a remedial action plan is to be implemented should be given a reasonable opportunity to review and comment on the supporting technical data and engineering design of the plan. 42 U.S.C. § 9621(f)(1). The statute also provides for a public comment period before the court enters the consent decree as a final judgment. The affidavit was filed over one month before the district court held a hearing on July 18, 1989 to consider approval of the consent decree. In light of the congressional intent expressed in the statute that public comment and state participation are to be encouraged and considered, we believe the district court improperly refused to accept the affidavit in June of 1989.
Moreover, section 9613(j)(l) of CERCLA indicates that “[ojtherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.” Our reading of related administrative law cases suggests that a reviewing court may consider materials supplementary to the administrative record in order to determine the adequacy of the government agency’s decision, even when the court’s scope of review is limited to the administrative record.
In Norwich Eaton Pharmaceuticals, Inc. v. Bowen, 808 F.2d 486 (6th Cir.1987), this court held that the district court had properly admitted evidence not found in the administrative record in reviewing a decision of the Food and Drug Administration. The additional evidence was required to determine whether the administrative record was adequate, and the district court based its decision on its review of the record. As the Ninth Circuit has stated:
It will often be impossible, especially when highly technical matters are involved, for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not.
Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980). Other courts have similarly held that a reviewing court evaluating agency action on the administrative record may consider additional evidence as either background information to aid the court’s understanding, or to determine if the agency examined all relevant factors or adequately explained its decision. See Missouri Coalition for the Environment v. Corps of Engineers of the U.S. Army, 866 F.2d 1025 (8th Cir.1989); Love v. Thomas, 858 F.2d 1347 (9th Cir.1988); Abington Memorial Hosp. v. Heckler, 576 F.Supp. 1081 (E.D.Pa.1983), aff'd, 750 F.2d 242 (3d Cir.1984).
However, the reviewing court “must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo.” Town of Burlington v. Dep’t. of Educ., 736 F.2d 773, 791 (1st Cir.1984), aff'd on other grounds, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). The court in Sterlingwear of Boston, Inc. v. United States, 11 Cl.Ct. 879 (1987), held that a court conducting record review of agency proceedings may make findings of fact de novo where a party has demonstrated that proposed evidence is newly discovered or was unavailable to the agency at the time of its administrative action. Even so, we decline to transform the entire review process into a de novo consideration of the evidence in light of the Hayes affidavit because of the express language of CERCLA, which limits our review to an arbitrary and capricious standard on the record. Furthermore, we believe that in a highly technical area such as the one at issue, federal courts are ill-equipped to engage in de novo review of such evidence presented to them during the public comment period prior to final entry of the decree.
The district court should have admitted the Hayes affidavit into evidence, but only for the purpose of determining the adequacy of EPA’s decision, not in order to determine whether the decision was the best one available. We must inquire, as the district court should have done, whether the information contained in the Hayes affidavit is of such significance that the agency must reconsider its decision in light of the new information, or whether the affidavit, when weighed against all of the other evidence available to EPA at the time it agreed to the consent decree, is insufficient to overcome the deference accorded EPA’s actions by a reviewing court applying the arbitrary and capricious test. We recognize that this places the federal courts in the delicate position of weighing the technical strength of new evidence, while at the same time asking them to defer to agency expertise in scientific matters. Nonetheless, this treatment of new evidence reflects the intent of the statute, and comports with the proper limited role of courts in reviewing CERCLA consent decrees, even as those courts accommodate the arrival of new information or significant adverse public comment.
Certainly our decision on the proper consideration of the Hayes affidavit is not reached without some reservations. In other contexts, the Supreme Court has observed:
“Administrative consideration of evidence ... always creates a gap between the time the record is closed and the time the administrative decision is promul-gated____ If upon the coming down of the order litigants might demand rehearing as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.”
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 554-55, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978) (quoting ICC v. Jersey City, 322 U.S. 503, 514, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420 (1944)). Nevertheless, it is our opinion that additional evidence can properly be considered in order to ensure the soundness of the agency’s action. The standard may well prove much easier to apply than to define. If, in the court’s admittedly unscientific judgment, some new evidence which was unavailable to the agency seems so significant that the agency’s original action now seems questionable, the reviewing court should remand the consent decree so that EPA’s experts can consider the new information. However, if the court finds that EPA would still have acted as it did even had the agency considered the new information, then the court may proceed to evaluate the consent decree on the administrative record using the arbitrary and capricious test.
Aside from the language of CERCLA and the case law concerning a district court’s consideration of additional evidence when reviewing an agency’s actions, our finding that the affidavit should have been considered by the district court is also sound from the viewpoint of public policy. In the technical and still-developing field of environmental science, new data regarding the efficacy of various cleanup remedies continues to come forward. We can imagine a situation in which EPA enters into a consent decree embodying a proposed remedy, and only after this decree is filed with the court does a scientific study come forward discrediting the selected remedy because the agency reached erroneous conclusions, or perhaps because cutting-edge studies indicate that the proposal is technically flawed. In such a case, Congress cannot have intended, and sound principles of justice cannot allow a reviewing court to close its eyes and ears to the new evidence. Were the court to enforce the decree simply because the information available to EPA at the time the decree was filed indicated that the remedial plan was not arbitrary or capricious, the court would surely not be acting in the best interests of the public if in fact the new data clearly showed that the plan would fail in its purpose.
Undoubtedly, a district court’s response to new data in general, and the Hayes affidavit in this case, must be guided by the contents of the new evidence and its relationship to the balance of the evidence that was before the administrative agency. We must engage, as the district court in this case should have engaged, in an evaluation of the Hayes affidavit and its possible effect on EPA’s decision to enter into the consent decree.
Y. WHETHER THE CONSENT DECREE IS ARBITRARY AND CAPRICIOUS
The State of Michigan first argues, along with amici curiae, that EPA’s decision to modify its ROD and consent decree to include soil flushing as a remedy for the Rose Site was arbitrary and capricious because the record does not support EPA’s conclusion that the Site is conducive to soil flushing. Under the arbitrary and capricious standard, a lower court’s discretionary action “cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon the weighing of the relevant factors.” McBee v. Bomar, 296 F.2d 235, 237 (6th Cir.1961); Cf. Motor Vehicle Manufacturers Ass’n v. State Farm Mutual, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (In articulating the arbitrary and capricious standard, the Supreme Court stated that it would “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”).
The 1987 RI/FS and ROD identified soil flushing as not applicable at the site for the following reasons:
a. The soils are marginally suitable for this technology because of variable permeabilities;
b. The soils contain both soluble and insoluble chemicals — flushing is only reliable for soluble chemicals and would have to be used with another technology to remove the entire source;
c. Pilot testing would have to be performed before such a remedy is implemented; and
d. Flushing is not well demonstrated, especially in cold weather environments like that of Michigan.
For the reasons that follow, we believe that the concerns noted in the RI/FS have all been adequately addressed by EPA in the ESD it published when it filed the decree with the district court. See generally Exh. 3.18, Explanation of Significant Differences.
As evidenced by its placement at the top of EPA’s concerns in 1987, there is no question that EPA originally considered the soil conditions at the Rose Site to be the prime deterent to the use of soil flushing. However, after the RI/FS was performed and after more soil samples were taken, EPA found that the soils to be flushed were not as complex as once thought:
Recall from the RI/FS and the [original] ROD that any contaminated soils below the water table would not be excavated and incinerated (since no PCBs are present in those soils). This includes clays. While the entire site may be geologically complex, only a small portion is intended to be evaluated for flushing. In that area some clays are present — either on the surface ([where] PCB removal [will be done by excavation and incineration]) or at or below the water table. Thus, a good portion of the clay problem either will be addressed or treated as in the [original] ROD.
Exh. 3.22b, Responsiveness Summary, at 21 (emphasis added). The ROD amendment likewise specifies:
If one examines the logs of soil borings taken at Rose ..., it can be seen that clay lenses are not present in the entire contaminated area which would need to be flushed. Although the geology of the entire site as a whole is rather complex, the geology of the contaminated subsurface soils may not be. In some areas clay zones are found only in the water table. Other areas find clay at the surface which may have to be excavated due to the presence of PCB contamination.
Exh. 3.22a, ROD amendment, at 3 (emphasis in original). Amici admit that “the contaminated zones are not underlain by clay layers 10 to 40 feet thick, as are some of the non-contaminated areas,” but nevertheless argue that Figure 5-7, one of the soil boring charts on which the district court relied, “indicates continuation of clay layers through the areas of contamination.”
That chart alone, however, does not persuade us that soil flushing should be avoided at the Rose Site. We recognize that at least six of the two dozen or more soil borings taken in the Southwest area of the site reveal a more complicated geology than does Figure 5-7. However, two of those soil borings, one of which is located near the outer perimeter of the area to be flushed, did not detect volatile organic compounds. Compare Exh. 3.1a, Figure 5-7, Profile A-A’ with Exh. 3.1b, Soil Boring Logs RW 6D, RW 8D. Hence, the effectiveness of soil flushing in those areas of the site is not of prime importance. While two other borings revealed clay mixed with silt and sand from ground level down to six and seven feet respectively, Exh. 3.1b, Soil Boring Logs RW4, RWD 5, the excavation of PCB-contaminated soil may take care of most, if not all, of those clay layers.
One of the soil borings near the center of the area to be flushed does reveal quite a bit of clay at depths from 4.5 to 14.5 feet deep and 14.5 to 19.5 feet deep. The groundwater level at that location was measured at 22.52 feet. Id. Soil Boring RW 7. Thus, the clay layer in that location can be expected to interfere with the infiltration of flush water to the groundwater. In addition to clay, this boring — as well as most of the soil borings previously discussed — reveals varying amounts of silt, sand and/or rock, all of which vary the soil’s permeability and raise the issue as to exactly how much interference with the flushing process there will actually be. It must be emphasized, however, that the Remedial Action Plan (“RAP”) annexed to the consent decree expressly requires that the settling defendants demonstrate to EPA, both in a laboratory and on-site, that soil flushing will work before it is implemented. The required demonstration includes additional field tests to further define the permeability of the soils.
Based on our thorough review of the scientific evidence in the record, we do not find EPA’s decision to experiment with soil flushing at the Rose Site to be arbitrary or without foundation. Nor does the Hayes affidavit {see supra), when viewed in light of the other evidence available to EPA at the time it agreed to the consent decree, render EPA’s most recent conclusions on the soil permeability of the Rose Site inadequate.
As stated in the fact summary, Hayes and two other Michigan Department of Natural Resources (“MDNR”) geologists visited the Rose Site in March of 1989 to conduct geophysical tests (gamma, neutron and gamma-gamma logs) on six monitoring wells previously installed on the site. Five of the wells are located within the area where the PRPs propose to use soil flushing, and the sixth well is less than one hundred feet from that area. “The purpose of these tests was to analyze the accuracy of the well driller’s logs for those six well locations.” Hayes Affidavit, Jt. App. at 533. The geophysical logs, according to Hayes, “indicate that the drilling logs of the monitor wells tested are not very accurate with regard to detailed descriptions of the site geology.” Id.
However, the difference in accuracy between the two types of logs performed on the Site does not appear to be substantial enough to overcome the deference accorded to EPA’s decision. While it is claimed that the geophysical logs differentiate sand and clay zones precisely whereas the drilling logs conglomerate them into a stew of clay, silt, sand, and gravel, in general the former logs reveal the existence of clay layers at approximately the same depths as do the drilling logs. Consequently, much of the evidence the Hayes affidavit presents is only “supplementary” rather than “new,” and not necessary to our determination whether the agreement embodied in the decree is adequate. See, e.g., Asarco, Inc. v. United States EPA, 616 F.2d 1153, 1160 (9th Cir.1980).
Furthermore, whether the geophysical logs are capable of providing heightened soil type and permeability differentiation (as well as revealing any “previously undiscovered" clay layers) boils down to a credibility determination. The state does not argue that EPA’s methods at the Rose Site to determine soil permeability are unconventional, but only that the geophysical tests are more accurate. “When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). We are not equipped to engage in the same technical evaluations of conflicting evidence that EPA and other experts are daily performing, especially when the evidence was submitted outside the administrative record. Fortunately, CERCLA does not ask us to do so, and we decline to proceed beyond the review procedures established in the statute. In sum, we do not find the Hayes affidavit to be of such significance that EPA must reconsider its selection of remedies for cleanup of the Rose Site.
We also believe that EPA’s responses to comments about the decree offered by residents, state agencies and politicians demonstrates the sufficiency of EPA’s, reconsideration of soil flushing as a potentially viable remedy for the Rose Site subsurface soils. For example, one of the main concerns expressed to EPA was that the clay lenses at the site may render grossly inaccurate the required testing defendants must conduct to measure soil flushing’s effectiveness. Illustrative are the following comments: “Using flushate monitor wells to determine what can or cannot be flushed from the site soils ... is neither logical nor scientifically defensible” because “[f]lus-hate monitor wells receive flushate that percolates downward only in the vicinity above and around the well.” Accordingly, the wells “are not representative of the entire soil contamination” due to “unequal distribution of contamination coupled with the potential effect of channelization of flushwater [which] may result in varied concentrations and types of contaminants in samples collected only a few feet apart.” Exh. 3.22b, Responsiveness Summary, at 7.
EPA, however, has always recognized its responsibility to make sure the potential problems associated with the testing, as well as the implementation, of soil flushing are resolved before the cleanup begins: “The above comments involve design criteria. All these and more will need to be satisfactorily addressed by the PRPs before EPA allows flushing to occur at Rose. EPA believes that an adequate confirma-tional sampling system can be devised, however.” Id. at 7-8. Actual placement and locations “of extraction and monitoring wells will be discerned after the hydrogeo-logic studies called for in the RAP are performed.” Id. at 14. The groundwater extraction and treatment system “will be in place to retain chemicals that may be missed by the flushing operation.” Id. at 8. Moreover, adequate soil sampling should reveal whether and to what extent there are individual pockets of missed residuals, which “will need to be addressed by the PRPs before they finish flushing.” Id. at 8.
While we have some concern for the current lack of concrete data as to exactly how effective soil flushing will be at the Rose Site, we are satisfied that EPA will obtain sufficient information to decide whether or not to implement soil flushing, and if so, to maintain its effectiveness. A conceptual model (drawing) of the flushing remedy was handed out by defendants at a public meeting in October, 1988. EPA stated that an actual working model would be made after laboratory testing was finished and the results would then be compiled and presented to the public. “At that time, U.S. EPA will decide as to whether flushing may be performed in the field.” Id. The gathering of concrete data would then continue after implementation of soil flushing was allowed. Under the decree, defendants must provide EPA with monthly progress reports; they are required to update EPA annually on the effectiveness of the soil flushing system; and “are obliged to make all adjustments necessary to maximize” its effectiveness. After five years of soil flushing, defendants must demonstrate to EPA that the soil flushing system will clean up the subsurface soil within ten years, or else they must adopt some other method. Exh. 3.18, Explanation of Significant Differences, at 3. In addition, defendants are subject to fairly heavy fines for failure to provide the reports and for delays in implementation of the proposed remedial scheme.
We find EPA’s information-gathering timetable to be rational. Cf. United States v. Cannons Engineering Corp., 899 F.2d 79, 88 (1st Cir.1990) (“[I]t would disserve a principal end of the statute — achievement of prompt settlement and a concomitant head start on response activities — to leave matters in limbo until more precise information was amassed.”). We also believe the consent decree provides adequate safeguards to ensure the veracity and timeliness of the required test results. Cf. United States v. Hooker Chemicals & Plastics Corp., 540 F.Supp. 1067, 1074 n. 3 (W.D.N.Y.1982) (the decree and proposed remedy should not await completion of the tests required to better delineate the extent of chemical migration because the agreement provides adequate safeguards to ensure the veracity of the test results). For instance, the settling defendants must “assure that U.S. EPA personnel or authorized representatives are allowed access to any laboratory utilized by [them] in implementing this Consent Decree.” Consent Decree VIII.
Moreover, the record reveals that soil flushing is already occurring at the Rose Site. The proposed soil flushing program will basically accelerate the natural process of flushing. It is
logical to assume that low permeable soils would have also redirected contaminants away as they migrated towards the water table. In essence, flush water may follow nearly the same path(s) as the contaminants. Thus, highly permeable soils that are more heavily contaminated will be more intensely flushed than less permeable soils which are less contaminated.
Id. at 21. The important distinction between the natural process now occurring and the proposed remediation program is that the flushate will be captured by extraction wells after it passes through the contaminated soils, and then returned to the surface for treatment. In sum, we feel EPA has adequately explained the reversal of its prior conclusion that the Rose Site “soils are marginally suitable due to variable permeability.”
The second reason EPA originally rejected soil flushing has also been satisfactorily resolved by the amended ROD. The ROD recognized that soil flushing, if used at all, would need to be used in conjunction with other technology to effectively clean up the Site and remove the insoluble chemicals in the soils. The amended ROD complies with that concern, as soil flushing is to complement excavation and incineration and not to wholly substitute for the original remedy. Thus, most of the insoluble chemicals in the surface soils which cannot be flushed out, namely the PCBs and lead, will be excavated before soil flushing of the subsurface soils contaminated with soluble chemicals occurs.
The decree also unquestionably resolves the third reason why soil flushing was screened out, i.e. pilot testing had not been performed. As noted earlier, pursuant to the ROD amendment and the decree, pilot testing of the proposed remedy will be performed on the site. It must “be shown through laboratory or pilot studies that flushing would remove hazardous chemicals to such a degree that the operation would be as protective as removal of hazardous chemicals by excavation and thermal destruction. Otherwise, full scale flushing activities may not occur.” Exh. 3.22a, ROD Amendment, at 3 (emphasis added).
Finally, while EPA originally expressed some concern that soil flushing may not work well in cold climates, that remedy has already been selected at three sites in Michigan with the state’s concurrence. See, e.g., Exh. 3.8, ROD for U.S. Aviex Site, at 25-26. Even assuming it is a significant impediment to soil flushing, cold weather does not pose a problem all year long. Moreover, EPA will apparently require that the “[ejquipment ... be designed to enable its operation during the winter.” Exh. 3.22a, Responsiveness Summary, at 21.
Accordingly, we are satisfied that EPA has adequately explained its change of position. As evidenced by language in the 1987 ROD, in which the state concurred, EPA contemplated reopening the decision if soil flushing was found to be “practical” and “less expensive.” The public was therefore put on notice that soil flushing might be re-examined in the near future. In evaluating the potential effectiveness of soil flushing at this particular site, EPA considered the RODs from four other sites at which soil flushing was used as a remedy as well as numerous articles discussing the use of soil flushing. The agency has also published and performed its own studies on the use of soil flushing to cleanup hazardous waste sites some of which had clayey soils, and thus is keenly aware of the remedy’s limitations. See Exh. 3.2-3.11; Jt.App. at 357-410. Further, the Gradient Corporation, an environmental consulting firm, concluded that soil flushing would remove virtually the same amount of chemicals from the subsurface soil at the Rose Site as would incineration. Exh. 3.21i, Gradient Corporation Memorandum, at 11 (Oct. 26, 1988). Finally, it should be emphasized that while relatively new, soil flushing is nevertheless a “proven” technology. Exh. 3.8, ROD for U.S. Aviex Site, at Table 7. In addition to three sites in Michigan, as of March 1988 soil flushing was in use in various foreign countries and at a total of thirteen different Superfund sites.
An administrative agency should not be, and is not under CERCLA, estopped by its prior precedent from altering its decisions due to increased expertise. Michigan v. Thomas, 805 F.2d 176, 184-85 (6th Cir.1986); 42 U.S.C. § 9617(c). We believe EPA’s conclusion that soil flushing (1) may work as well as incineration for the VOC-contaminated soils, (2) is protective of the human health and environment, and therefore (3) satisfies CERCLA’s preference for remedies that utilize permanent and innovative treatment to the maximum extent practicable to reduce toxicity, mobility or volume of hazardous substances, see exh. 3.22a, at 1, is rational and supported by the record. No clear error of judgment was made by the district court in approving EPA’s change of position. See McBee, 296 F.2d at 237.
VI. WHETHER THE DECREE IS FAIR, REASONABLE AND ADEQUATE
As we have observed earlier, in addition to determining whether a decree is rational and not arbitrary or capricious, we must satisfy ourselves that the terms of the decree are fair, reasonable and adequate — in other words, “consistent with the purposes that CERCLA is intended to serve.” H.R.Rep. No. 253, 99th Cong., 1st Sess. Pt. 3 at 19, supra; United States v. Hooker Chemical & Plastics Co., 607 F.Supp. 1052, 1057 (W.D.N.Y.1985) (citation omitted). While we are to “eschew any rubber stamp approval in favor of an independent evaluation,” City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), we may not substitute our own judgment for that of the parties to the decree. United States v. Jones & Laughlin Steel Corp., 804 F.2d 348 (6th Cir.1986) (a reviewing court may not modify but only approve or reject a consent decree). Protection of the public interest is the key consideration in assessing whether a decree is fair, reasonable and adequate. Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 712 F.Supp. 1019, 1028 (D.Mass.1989); United States v. Ketchikan Pulp Co., 430 F.Supp. 83, 86 (D.Ala.1977).
In determining whether a decree is “fair,” courts have considered the following: “the strength of plaintiffs case, the good faith efforts of the negotiators, the opinions of counsel, and the possible risks involved in the litigation if the settlement is not approved.” Hooker Chemical & Plastics Co., 607 F.Supp. at 1057; U.S. v. Cannons Engineering Corp., 720 F.Supp. 1027, 1039-40 (D.Mass.1989). “Fairness should be evaluated from the standpoint of signatories and nonparties to the decree.” Conservation Chemical Co., 628 F.Supp. at 401. “The effect on non-settlers should be considered, but is not determinative in the court’s evaluation.” Cannons Engineering Corp., 720 F.Supp. at 1040 (citing Acushnet River, 712 F.Supp. at 1029).
The good faith efforts of the parties to the decree are evidenced by the voluminous record, the arms-length negotiation process and the manifested willingness of EPA to thoroughly consider all oral and written comments made with regard to the proposed decree. The State of Michigan itself was involved for more than six months in the post-1987 ROD negotiations that led to an amended ROD and the consent decree before it eventually withdrew from the settlement discussions. See Exh. 3.12, Rose Township Chronology of Events. We note and emphasize that at one time during the negotiation process between EPA and the PRPs, the state was willing to consider soil flushing under conditions similar to those imposed by the consent decree. See Exh. 3.14, Letter from Gary Guenther, Chief Environmental Response Division (MDNR) to Basil Con-stantelos, Director of Waste Management Division (EPA) (May 20, 1988) [hereinafter “Letter from Guenther”]; Exh. 3.12, Rose Township Chronology of Events. The only significant difference between the settlement contemplated by the state and the consent decree at issue is that the latter does not incorporate a specified remedy should soil flushing fail. Id. Exh. 3.14, Letter from Guenther.
The respective legal positions of the parties also militate in favor of the settlement. The strength of the government’s case against defendants is not well documented at this point. The settling defendants have maintained throughout this litigation that the evidence linking them to the Rose Site is extremely tenuous. Consequently, if the decree is overturned, the parties will no doubt engage in a protracted legal battle over liability and the appropriate remedy for the Site. In enacting the 1986 amendments to CERCLA, however, Congress sought to “expedite effective remedial actions and minimize litigation.” 42 U.S.C. § 9622(a). We have stated before that one of CERCLA’s main goals is “the prompt cleanup of hazardous waste sites.” Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985). Given that (1) liability of the settling defendants is presently uncertain and (2) dumping at the site started some twenty years ago, we are sensitive to EPA’s desire to finalize a remedial plan and force the PRPs to get on with the job and clean up a long-standing mess. Cf. United States v. Cannons Engineering Corp., 899 F.2d 79, 90 (1st Cir.1990) (“[I]f the case is less than robust, or the outcome problematic, a reasonable settlement will ordinarily mirror such factors.”); United States v. McGraw-Edison Co., 718 F.Supp. 154, 159 (W.D.N.Y.1989) (settlement reasonable in light of prospect of protracted litigation as contrasted to expeditious reimbursement and remedy).
Moreover, we are faced with a presumption in favor of voluntary settlement. That presumption is particularly strong where a consent decree has been negotiated by the Department of Justice on behalf of a federal administrative agency like EPA which enjoys substantial expertise in the environmental field. United States v. Cannons Engineering Corp., 899 F.2d 79, 84 (1st Cir.1990). We note that a settlement “is not an opportunity to avoid any of the cleanup requirements or procedures of the act.” 132 Cong.Rec. S 14,918 (daily ed. Oct. 3, 1986) (Statement of Sen. Mitchell). As discussed in subsection VII B, infra, however, the decree incorporates all “cleanup requirements” imposed by CERCLA and SARA, and the “procedural requirements” of these acts are not contested. In evaluating the decree, it is not our function to determine whether this is the best possible settlement that could have been obtained, but only whether it is fair, adequate and reasonable. See, e.g., Durrett v. Housing Auth., 896 F.2d 600, 603-04 (1st Cir.1990). Accordingly, based on the legal posture of the parties, the nature of the negotiation process that led to the decree, and the need to expedite the cleanup at the Rose Site, we agree with the district court that this settlement is fair.
In determining whether a consent decree is “reasonable” courts have considered the following: the nature/extent of hazards; the degree to which the remedy will adequately address the hazards; possible alternatives for remedying hazards; and the extent to which the decree furthers the goals of the statute. Cannons Engineering Corp., 720 F.Supp. at 1038. See also Conservation Chemical, 628 F.Supp. at 391; United States v. Seymour Recycling Corp., 554 F.Supp. 1334, 1339 (S.D.Ind.1982). “These criteria reflect the court’s ‘limited duty’ to inquire into the technical aspects of the cleanup program proposed by a consent decree in order to ensure that the proposed settlement adequately addresses environmental and public health concerns.” Seymour Recycling Corp., 554 F.Supp. at 1038 (citing Hooker Chemicals & Plastics Corp., 540 F.Supp. at 1072).
The most important of these “reasonableness” factors, the decree’s likely effectiveness as a vehicle for cleansing the Rose Site, has already been addressed under the arbitrary and capricious standard and thus will not be reexamined. See Marsh, 490 U.S. at 377 n. 23, 109 S.Ct. at 1861 n. 23. In our opinion the decree is binding on the settling defendants. Therefore, contrary to amici’s suggestion, the fact that the decree fails to spell out an alternate remedy in the event soil flushing fails does not give settling defendants carte blanche. Should soil flushing prove to be unfeasible, the selection of a significantly different alternative remedy would be subject to the public participation requirements in section 9617 and state participation requirements in section 9621(f), as well as judicial review under section 9613(h)(4).
Moreover, regardless of the effectiveness of soil flushing which must be proven within specific time limits, defendants are required to remedy the site to Phase I TCLs. Once Phase I TCLs have been met, cleanup to Phase II TCLs (ARARs) will be performed by EPA. In other words, should soil flushing be rejected, the settling defendants would still have an incentive to make sure that whatever remedial action were implemented in its place attained all ARARs and did not further degrade the environment. As long as ARARs will be attained, no CERCLA provision prohibits the use of open-ended remedial schemes. In fact, section 9621(d)(4)(A), discussed infra in subsection VIIB, implicitly provides support for such decrees.
We find that the Rose Site decree is carefully structured so as to ensure the protection of human health and the environment while providing reasonable flexibility to the PRPs. For the hazardous chemicals common to both the sites, the Rose Site TCLs are at or below (more stringent than) the levels agreed to by the State of Michigan at the U.S. Aviex Site, where soil flushing is also to be used. Both the Rose Site Phase I and Phase II cleanup standards are at or substantially below the MCLs, which are promulgated water standards under the Safe Drinking Water Act (“SDWA”). When remediated to the Phase I levels, the groundwater at the site will be as clean or cleaner than water which is acceptable for the 245 million people in this country to drink. See Exh. A, attached to Brief for Settling Defendants.
Other courts have accepted open-ended decrees. See Partial Consent Decree, Cannons Engineering Corp., 720 F.Supp. at 1027 (“If the sampling results indicate that the remedial goal has not been attained, a decision will be made to either continue vacuum extraction for a specified length of time and resample, or to complete the remedy with some other suitable technology.”); Hooker Chemicals & Plastics Corp., 540 F.Supp. at 1076-77 (while the decree is not specific as to methods to be utilized to prevent further contamination should remedies already specified fail, it is nevertheless reasonable and in the public’s best interest). We find no reason to strike down the open-ended provision of this decree.
As CERCLA recognizes, the cleanup of hazardous wastes involves too many variables not to allow the settling defendants to carefully test viable, cost-effective remedies at a particular site. Indeed, the original ROD to which the state consented also allowed for the substitution or modification of the proposed remedy, i.e. excavation and incineration, in the event cost became a factor. The decree’s failure to specify an alternative remedy may in fact be in the public’s best interest, as it allows the parties to consider the nature of remaining contamination, the effect of changed soil conditions, and the use of new remedial technologies. Cf. Akzo Coatings, 719 F.Supp. at 585. Already there are other methods to remove VOCs from soil besides incineration, such as thermal aeration and vacuum extraction.
In determining the reasonableness of a consent decree, we must also consider the cost effectiveness of its proposed remedial action. See 42 U.S.C. § 9621(b). Assuming soil flushing proves to be feasible at the Rose Site, it will result in the accomplishment of the same TCLs set forth in the 1987 ROD at 29% of the cost of the original remedy. While a lot of money may be saved through the use of soil flushing, we find no evidence of a sweetheart deal here between EPA and defendants. The settling defendants must meet Phase I TCLs regardless of cost. It is estimated that the $500,000 to be placed by defendants in a trust fund to pay for the costs of cleanup from Phase I TCLs to Phase II TCLs will grow to about $1,200,000 before it will be needed, and that sum, EPA concludes, should be sufficient to finish the cleanup. With those funds, EPA will operate the water extraction and monitoring systems already in place. In response to the public comment that the PRPs should themselves perform the entire cleanup, EPA stated:
We believe that it was important to reach a settlement for this case to save the Superfund $30 million, although it means taking on the small burden of continuing the cleanup using the trust funds. Since the Settling Defendants are paying for the trust fund as well as the site work, the main burden of cleanup is in fact on them.
Exh. 3.22b, Responsiveness Summary, at 13. In accordance with CERCLA’s goals, the primary and the ultimately forseeable financial responsibility is on the settling defendants. See Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985) (“[I]t is clear that the statute was designed primarily to facilitate the prompt cleanup of hazardous waste sites by placing the ultimate financial responsibility for cleanup on those responsible for the hazardous wastes.”).
In addition, we find that the time required for the total cleanup of the site, while most likely extended a few years due to the incorporation of the soil flushing remedy, is not unreasonable. Indeed, the time required to comply with the decree’s remedial requirements may not be significantly longer than that required for the remedy as originally proposed. Soil flushing may extend the cleanup to 10 to 15 years. However, “[t]wo or three years of incineration would not have ended work at the site, for the groundwater extraction and treatment system was estimated to be operated for an additional 6 to 10 years afterward." Exh. 3.22b, Responsiveness Summary for ROD Amendment, at 15. The 1987 ROD estimated that if the decree was signed in 1987, groundwater treatment might continue until at least 1999. In other words, the site will be affected for a long time no matter how the cleanup is performed. But if this settlement is rejected, the time required to remedy the site will inevitably be lengthened by several more years.
It must also be emphasized that, like soil flushing, excavation and incineration are not perfect remedies either. Unlike the case with PCB-contaminated soil, there is a significant risk of release of the VOCs into the atmosphere if such soils are excavated. Exh. 3.1(e), Hart Review of E.C. Jordan Final Report for the Rose Township, at 27 (Aug. 19, 1987). Difficulties may also occur with air emissions during the incineration phase of the remedy. Id.; Akzo Coatings, 719 F.Supp. at 587 (The district court pointed out “the potential dangers of dust and ash exposure that are associated with soil incineration.”). Moreover, incineration will not destroy the metals in the soil, “but what may happen is they will be rendered immobile and thus less hazardous” and consequently “[fjurther treatment may be necessary for the wastewater and/or ash.” Exh. 3.1c, Responsiveness Summary for 1987 ROD, at 3.
Deemed “protective of human health and the environment” {See 42 U.S.C. § 9621(b)) at other sites by both EPA and the state, soil flushing as used in conjunction with other technologies over which there is no dispute should be given the same chance at the Rose Site. The First Circuit recently stated: “Congress intended, first, that the judiciary take a broad view of proposed settlements, leaving highly technical issues ... to the discourse between parties; and second, that the district courts treat each case on its own merits, recognizing the wide range of potential problems and possible solutions.” United States v. Cannons Engineering Corp., 899 F.2d 79, 85-86 (1st Cir.1990). When viewed as a whole, the decree is reasonable. See also United States v. Rohm & Haas Co., 721 F.Supp. 666, 685-86 (D.N.J.1989) (“For this settlement to be reasonable, it need not be bottomed on the most convincing analysis of the present factual record, it must merely be reasonable when measured by the range of plausible interpretations of that record.”).
This decree accomplishes the two principal goals of CERCLA, ensuring prompt effective remedial action while placing the financial burden of the cleanup on the PRPs. Walls v. Waste Resource Corp., 823 F.2d 977, 978-79 (6th Cir.1987). Accordingly, we find that the decree, which requires the implementation of soil flushing (if proven effective) or an alternative permanent remedy for subsurface soils, plus incineration and a water extraction and treatment system, is a fair, reasonable and adequate settlement.
VII. WHETHER THE PROPOSED DECREE COMPLIES WITH THE LAW
In their challenges to the legality of the decree and the district court’s judgment, the parties raise five significant issues. Defendants argue that the district court erred in its ruling that Michigan’s anti-degradation law is an applicable or relevant and appropriate environmental requirement (“ARAR”). The State of Michigan, on the other hand, questions whether the decree’s remedial action will attain potential state ARARs. Next, the state argues that soil flushing by definition violates Michigan’s anti-degradation law, allegedly a state ARAR. The fourth issue concerns the validity of the decree insofar as it contains a covenant not to sue. Finally, we consider defendants’ allegation that EPA must enter “into a contract or cooperative agreement” with the State of Michigan prior to providing remedial action at the Rose Site. These issues will be addresses sequentially.
A. Whether Michigan’s Anti-degradation Law is an ARAR
The State of Michigan and amici curiae contend that the proposed remedy is not in accordance with the law because it does not meet the state’s ARARs. Under CERCLA, the remedial action selected must comply with identified state ARARs that are more stringent than applicable federal standards unless the ARARs are waived. The relevant provision provides in part:
With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if (i) any standard, requirement, criteria, or limitation under any Federal environmental law, ... or (ii) any promulgated standard, requirement, criteria, or limitation under a State environmental ... law that is more stringent than any Federal standard, ... is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances, ... the remedial action selected ... shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation.
42 U.S.C. § 9621(d)(2)(A). Before deciding whether the decree must comply with such laws, we need to determine whether there are any state ARARs applicable to the Rose Site.
The district court found that the Michigan Water Resources Commission Act (“WRCA”), and its corresponding agency rules, Mich.Admin.Code R. 323.2201 (1980), et seq., (“Part 22 Rules”) satisfy each of the criteria for ARARs to which a proposed remedy must comply under section 9621(d). Section 6(a) of the WRCA provides, in part:
It shall be unlawful for any persons directly or indirectly to discharge into the waters of the state any substance which is or may become injurious to the public health, safety, or welfare; or which is or may become injurious to domestic, commercial, industrial, agricultural, recreational or other uses which are being or may be made of such waters____
M.C.L.A. § 323.6(a) (emphasis added). The corresponding agency rules, the Part 22 Rules, provide for the nondegradation of groundwater in usable aquifers. Mich.Admin.Code R. 323.2205 (1980). Defendants challenge the district court’s conclusion that said Michigan law and rules, collectively referred to as Michigan’s anti-degradation law, qualify as a state ARAR.
Under 42 U.S.C. § 9621(d), supra, a state environmental requirement or standard constitutes a state ARAR to which the remedy must comply if it is (1) properly promulgated, (2) more stringent than federal standards, (3) legally applicable or relevant and appropriate, and (4) timely identified.
1. Whether Michigan’s Anti-degradation Law is Properly Promulgated
To be considered an ARAR, the anti-degradation law must be “promulgated.” 42 U.S.C. § 9621(d)(2)(A)(ii). According to EPA, “promulgated” as used in section 9621 refers to “laws imposed by state legislative bodies and regulations developed by state agencies that are of general applicability and are legally enforceable.” EPA, Superfund Program; Interim Guidance on Compliance with Applicable or Relevant and Appropriate Requirements; Notice of Guidance, 52 Fed. Reg. 32495, 32498 (Aug. 27, 1987) [hereinafter Interim Guidance ]. See also Preamble, National Oil and Hazardous Substances Pollution Contingency Plan, 55 Fed.Reg. 8666, 8841 (Mar. 8, 1990) (codified at 40 C.F.R. § 300.400(g)(4)) [hereinafter NCP, Final Rule]. EPA evidently desired to differentiate “advisories, guidance, or other non-binding policies, as well as standards that are not of general application,” Interim Guidance, 52 Fed.Reg. at 32498, from laws or rules promulgated by state legislatures or agencies that are imposed on all citizens of a particular state, which is the case with Michigan’s anti-degradation law since it was enacted by the Michigan legislature, and the accompanying administrative rules were properly developed by the Michigan Water Resources Commission. Akzo Coatings, 719 F.Supp. at 583.
While defendants concede that Michigan’s anti-degradation law has general applicability, they contend that it was not properly promulgated because its vagueness and lack of a quantifiable standard render it legally unenforceable. A standard is not constitutionally vague if it is drafted “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). As noted above, the WRCA does not permit anyone “directly or indirectly to discharge into the waters of the state any substance which is or may become injurious to the public health, safety, or welfare; or ... to domestic, commercial, industrial, agricultural, recreational or other uses____” We believe such a standard is “sufficiently specific to provide a fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972).
To be sure, when the WRCA was enacted in 1929 the Michigan legislature may have intended “injurious” to mean concentrations of contaminants measurable only in parts per thousand rather than parts per billion or per trillion, as we are capable of measuring today. However, any legislature desiring to prohibit “immoral conduct,” for example, faces the same dilemma because the standard of what constitutes acceptable conduct changes over time. Cf. Fowler v. Board of Educ., 819 F.2d 657, 664-65 (6th Cir.1987) (due to the need to govern wide ranges of conduct, various courts including the Supreme Court have rejected vagueness challenges to laws prohibiting federal or state employees from engaging in “misconduct,” “immorality,” or “conduct unbecoming”).
Moreover, section 323.5 of the WRCA expressly requires the Water Resources Commission to “establish pollution standards for lakes, rivers, streams, and other waters of the state____” As we find is the case with section 323.6 of the WRCA, the Part 22 Rules which prohibit “degradations” of “groundwaters in any usable aquifer which would deteriorate the local background groundwater quality,” Mich.Admin.Code R. §§ 323.2202(g), 323.-2205, are neither vague nor unenforceable. Likewise, the fact that a “degradation” of groundwaters may occur only when it is “determined by the commission to be a deterioration in terms of magnitude of the change and importance of the parameters describing groundwater quality,” id. § 323.2202(g), does not render Michigan’s anti-degradation law constitutionally infirm. The “background water quality,” measured by a hydrogeological study as required under the Part 22 Rules, provides a standard beyond which would-be polluters may not pollute. According to EPA, “[gjeneral State goals that are duly promulgated (such as a non-degradation law) have the same weight as explicit numerical standards, although the former have to be interpreted in terms of a site and therefore may allow more flexibility in approach.” Interim Guidance, 52 Fed.Reg. at 32,498 (emphasis added).
Defendants emphasize that EPA, in its proposed rules, requires “general state goals” to be implemented by means of “specific requirements,” which Michigan’s current implementing regulations fail to do, as they only prohibit “degradations” of the “local background groundwater quality.” However, as evidenced by its proposed rules as a whole, EPA is not limiting the validity of general state goals solely to those which are implemented via specific numerical standards promulgated in corresponding agency rules. Rather, the type of standard provided is one of several factors courts should consider in deciding whether a state goal is an ARAR. EPA’s proposed rules state:
General State goals that are contained in a promulgated statute and implemented via specific requirements found in the statute or in other promulgated regulations are potential ARARs. For example, a State antidegradation statute which prohibits degradation of surface waters below specific levels of quality or in ways that preclude certain uses of that water would be a potential ARAR. Where such promulgated goals are general in scope, e.g., a general prohibition against discharges to surface waters of “toxic materials in toxic amounts,” compliance must be interpreted within the context of implementing regulations, the specific circumstances of the site, and the remedial alternatives being considered.
EPA, National Oil and Hazardous Substances Pollution Contingency Plan; Proposed Rule, 53 Fed.Reg. 51394, 51,438 (Dec. 21, 1988) [hereinafter Proposed Rule ] (emphasis added). EPA’s final revisions are even clearer: “Even if a state has not promulgated implementing regulations, a general goal can be an ARAR if it meets the eligibility criteria for state ARARs. However, EPA would have considerable latitude in determining how to comply with the goal in the absence of implementing regulations.” NCP, Final Rule, 55 Fed. Reg. at 8746. Hence, EPA’s own publications recognize that general requirements containing no specific numerical standards, or any implementing regulations at all for that matter, can be enforceable ARARs.
We are unable to find any legally binding case law supporting defendants’ contention that Michigan’s anti-degradation law is unenforceably vague. We recognize that the district court in Kelley v. United States, 618 F.Supp. 1103 (W.D.Mich.1985), found that Michigan’s anti-degradation law did not provide objective, quantifiable standards capable of uniform application such that it could constitute a state pollution “requirement” for the purpose of waiving federal sovereign immunity under the Clean Water Act (“CWA”), 33 U.S.C. § 1323. Kelley, however, is inapplicable to our ease. Unlike the waiver of sovereign immunity under the CWA, which is interpreted strictly, objective standards are not required under CERCLA for a requirement to qualify as an ARAR. See 42 U.S.C. § 9621(d).
Other Michigan cases demonstrate that Michigan’s anti-degradation law is legally enforceable. For example, in both Attorney General v. Thomas Solvent Co., 146 Mich.App. 55, 380 N.W.2d 53 (1985) and Attorney General v. John A. Biewer Co., 140 Mich.App. 1, 363 N.W.2d 712 (1983), the Michigan Court of Appeals affirmed injunctions requiring abatement and cleanup of water pollution caused by seepage of toxic chemicals through soils into groundwater in violation of M.C.L.A. § 323.6(a). Cf. Michigan Waste Sys. v. Department of Natural Resources, 147 Mich.App. 729, 739-40, 383 N.W.2d 112 (1985) (standard of “odor” in agency rules regulating landfill location not impermissibly vague); County of Delta v. Department of Natural Resources, 118 Mich.App. 458, 464-65, 325 N.W.2d 455 (1982) (terms “sanitary standards” and “unlawful pollution” contained in statute and accompanying guidelines are not impermissibly vague). In sum, the WRCA and the Part 22 Rules are legally enforceable, and thus “promulgated” within the meaning of 42 U.S.C. § 9621(d)(2)(A)(ii).
2. Whether Michigan’s Anti-degradation Law is More Stringent than Federal Standards
Section 9621(d)(2)(A)(ii) also requires that for state standards to apply to a remedial action plan, they must be “more stringent than any Federal standard, requirement, criteria or limitation____” The district court summarily concluded that
[although it is difficult to compare a federal statute containing specific requirements with a state agency rule that contains a broad prohibition, this Court finds that the broad prohibition is more stringent than the federal statute setting minimal standards. Accordingly, Michigan’s anti-degradation law also complies with this aspect of 42 U.S.C. § 9621(d).
Akzo Coatings, 719 F.Supp. at 584. The district court, however, is not left without authority for its conclusion. In its proposed revision of the NCP, EPA stated: “Where no Federal ARAR exists for a chemical, location, or action, but a State ARAR does exist, or where a state ARAR is broader in scope than the Federal ARAR, the State ARAR is considered more stringent.” Proposed Rule, 53 Fed.Reg. at 51435. Senator Mitchell, one of the principal authors of section 9621, similarly explained during the debate on SARA that a “more stringent” state requirement within the meaning of section 9621(d)(2)(A) “includes any State requirement where there is no comparable Federal requirement.” 132 Cong.Rec. S 14,915 (Oct. 3, 1986) (emphasis added).
We find that no comparable federal statute or rule identified by the parties broadly regulates direct or indirect discharges of any injurious or potentially injurious substance into groundwater resources as does section 6(a) of the WRCA. The WRCA is not directly comparable to the federal Safe Drinking Water Act (“SDWA”), 42 U.S.C. § 300g-l(a)(2) because it is broader in coverage and, depending on the site, as or more demanding in terms of cleanup requirements than the SDWA. We believe, therefore, that the WRCA is more stringent than the SDWA.
With regard to coverage, the provisions of the SDWA apply only to a limited number of substances while the WRCA applies to “any substance which is or may become injurious to the public health,” M.C.L.A. § 323.6(a). Second, the SDWA applies only to public drinking water supply systems serving a certain minimum number of customers, 42 U.S.C. §§ 300(f)-(g)(4), while the WRCA applies to any waters of the state, whether private or public, including groundwaters. M.C.L.A. § 323.6(a).
Likewise, we find that the WRCA’s cleanup requirements implemented by means of that Act’s accompanying regulations are equally or in some cases more demanding, and thus not less stringent, than the federal maximum contaminant levels (“MCLs”) under the SDWA. The Part 22 Rules prohibit degradation of groundwater “from local background groundwater quality.” Mich.Admin.Code R. 323.2205(1). Defendants mischaracterize the Part 22 Rules by equating the terms “local background groundwater quality” and “existing groundwater quality” — terms that have distinct meanings under the Rules. Equating “local background groundwater quality” to the “existing groundwater quality” as determined before the influence of soil flushing would produce the illogical result of allowing defendants to continue polluting the Rose Site groundwaters as long as the same levels of contaminants already present in the groundwaters from their prior pollution were maintained. Instead, “local background groundwater quality” refers to the condition of the local groundwater “having virtually no influence by discharges.” Mich.Admin.Code R. 323.-2202(r).
In many instances, especially when dealing with synthetic compounds which do not naturally occur in groundwater, the Part 22 Rules will be more stringent than the SDWA. For example, the SDWA would limit the vinyl chloride concentration, which at the Rose Site is 140 parts per billion (“ppb”) at several monitoring wells, to only 2 ppb. 40 C.F.R. § 141.61 (1989). However, with no influence by discharges, the background concentration of vinyl chloride in the groundwaters of the Rose Site should be at or near zero. If the state commission determined the difference between the SDWA and the WRCA standards to be substantial enough, the level of cleanup required would therefore be higher under the Part 22 Rules as compared to the federal standard for vinyl chloride and other synthetic compounds. Moreover, the Part 22 Rules also prohibit materials at concentrations that exceed the MCLs for inorganic and organic chemicals, as specified in the federal drinking water regulations, from being discharged into ground-waters in usable aquifers “even in those cases where the local background groundwater levels for these materials exceed the specified levels.” Mich.Admin.Code R. 323.2205(3) (emphasis added). With many contaminants in the groundwaters of the Rose Site, therefore, the Part 22 Rules will be at least as stringent as the SDWA, but with others, such as vinyl chloride, they will be more stringent. Accordingly, even if we focus on the Rose Site alone, as EPA seems to require with general state goals, see Interim Guidance, 52 Fed.Reg. at 32498, we find that the WRCA and the Part 22 rules are more stringent than federal standards under the SDWA.
3. Whether Michigan’s Anti-degradation Law is Legally Applicable to the Rose Site or Relevant and Appropriate to the Remedial Action Selected
The third requirement under section 9621(d) is that the potential ARARs be “legally applicable to the hazardous substance or pollutant or contaminant concerned or [] relevant and appropriate under the circumstances of the release or remedial action selected____” To determine whether this requirement is satisfied, we must re-examine the scope of Michigan’s anti-degradation law. Section 6(a) of the WRCA prohibits persons from discharging, “directly or indirectly,” certain substances into the groundwaters. The Part 22 Rules define “discharges” to be “the addition of materials to ground waters from any facility or operation which acts as a discreet or diffuse source____” Mich.Admin.Code R. 323.2202(j).
The record in this case clearly establishes an ongoing, indirect discharge of injurious substances from the soil into the groundwater at the Site caused by the natural infiltration of water through contaminated soils, which in turn results in the leaching of contaminants. The RI/FS (Exh. 3.1a, at 20), the 1987 ROD (Exh. 3.1c, at 11), the 1987 Responsiveness Summary (Exh. 3.1c, at 17-18), and the amended ROD (Exh. 3.22a, at 3) all reflect that soils contaminated with toxic chemicals on site will, unless remediated, act as a “continual source of groundwater degradation.” Exh. 3.22a, Rod Amendment, at 3. The record also establishes that the nature and distribution of these contaminants is such that they are or may become “injurious to the public health, safety or welfare ... or [to] uses which are being made or may be made of such waters____” M.C.L.A. § 323.6(a). Cf. United States Aviex Co. v. Travelers Ins. Co., 125 Mich.App. 579, 336 N.W.2d 838 (1986) (court held that property owner was subject to liability to the state under WRCA for discharge of pollutants into groundwater under his property as a result of contaminated water used to extinguish a fire at a chemical plant above ground).
We thus agree with the district court that “because soil flushing diffusely discharges toxicants from the soil into the ground water, the anti-degradation rules are legally applicable to the clean up of the Rose Township site” and to soil flushing in particular. Akzo Coatings, 719 F.Supp. at 584 (citing to Mich.Admin.Code R. 323.-2202(j)). See also Exh. 3.18, Explanation of Significant Differences, at 2 (The effect of soil flushing “would be to ‘mimic’ the natural precipitation infiltration process which is currently leaching chemicals into the groundwater.”). For reasons previously stated, we do not accept the argument that Michigan’s anti-degradation law is inapplicable to soil flushing because it is “prospective” and thus only covers further degradation of groundwaters. Michigan’s anti-degradation law provides for the protection from degradation of “background,” not “existing,” groundwater and thus requires, assuming it is an ARAR, that the PRPs restore the groundwater at the site to the local background groundwater quality, whatever that may be. Cf. Thomas Solvent Co., 146 Mich.App. at 64, 380 N.W.2d 53 (The court explained that the “status quo” to be protected by the injunction under the WRCA was “an unpolluted environment ... [and] the maintenance of uncontaminated groundwater and soil.”).
Moreover, no one could question the applicability of Michigan’s anti-degradation law if the state is correct in its assumption that the clay layers in the Rose Site soils will channelize the flushate and create unpredictable drainage pathways, thereby contaminating groundwater offsite. However, as explained below, soil flushing as would be used at the Rose Site is not prohibited under the state’s anti-degradation law even though it requires a discharge of prohibited substances into the groundwater because flushing will have a “remedial” purpose there.
Even if Michigan’s anti-degradation law were not applicable to this site, its consideration would certainly be “relevant and appropriate.” Among possible factors to be considered, the environmental media (“groundwater”), the type of substance (“injurious”) and the objective of the potential ARAR (“protecting aquifers from actual or potential degradation),” are all “relevant” in this case because they pertain to the conditions of the Rose Site. Moreover, considering the aforementioned factors, the use of Michigan’s anti-degradation law is well-suited to the site at issue and therefore “appropriate” in this case. See Proposed Rule, 53 Fed.Reg. at 51436; 40 C.F.R. § 300.400(g)(2) (1990).
Accordingly, we conclude that Michigan’s anti-degradation law is properly promulgated, more stringent than the federal standard, legally applicable or relevant and appropriate, as well as timely identified (the latter factor not having been argued on appeal), and therefore constitutes an ARAR within the meaning of 42 U.S.C. § 9621(d)(2). The fact that Michigan’s anti-degradation law is an ARAR, however, does not resolve the question of whether the decree must comply with that ARAR. A decree must comply with all federal and state ARARs unless EPA “waives” an ARAR and the state either does not challenge the waiver or the waiver is upheld in court against the state challenge. See 42 U.S.C. § 9621(d)(4), (f)(2).
B. Whether the Decree’s Remedial Action Will Attain the Cleanup Requirements of Michigan’s Anti-Degradation Law
The briefs and district court opinion generate considerable confusion on the issues of whether the decree’s remedial action will attain the cleanup requirements of Michigan’s anti-degradation law and if not, whether EPA actually and properly “waived” that ARAR. While the district court found that the state had not designated any portions of the record that establish EPA had failed to consider Michigan’s anti-degradation law to be an ARAR, Akzo Coatings, 719 F.Supp. at 586 n. 6, several references in the government’s brief and in its correspondence during negotiations with defendants suggest that, as with the Aviex Site, it never considered the WRCA and Part 22 Rules to be an ARAR. In any event, the State of Michigan does not, and cannot at this point, allege that cleanup standards at the completion of the remedial action will fall below the ARARs. The state consented to the 1987 ROD and agreed that all ARARs would be met by the accompanying RAP. The 1987 ROD contains the same TCLs as the amended ROD, so the state has implicitly agreed that the amended ROD and consent decree’s TCLs satisfy all ARARs, including Michigan’s groundwater regulations. Instead, the state's argument that the consent decree does not attain ARARs only consists of criticisms of the selected methodology; i.e., soil flushing will fail to attain the decree’s TCLs and thus the ARARs for the Rose Site.
The state argues that EPA has a duty to determine, prior to submitting the decree to the court, whether soil flushing would attain ARARs. In contrast, defendants argue and the district court agreed that based on section 9621(d)(2), “whether the Consent Decree complies with the state ARAR is to be measured ‘at the completion of the remedpal action.]’ ” Akzo Coatings, 719 F.Supp. at 586 (quoting 42 U.S.C. § 9621(d)(2)(A)). As evidenced by its title, however, section 9621(d)(2)(A)’s purpose refers to the “degree of cleanup” required under CERCLA, which is naturally measured at the completion of the remedial action. That provision does not address the issue of whether EPA has a duty to initially ascertain that the chosen remedy will in fact achieve ARARs.
EPA’s own regulations indicate that the agency has some obligation to evaluate proposed remedial actions in terms of whether they will attain ARARs before implementation. Once the initial screening is done, “[Alternatives shall be assessed to determine whether they attain [ARARs].” 40 C.F.R. § 300.430(e)(9)(iii)(B) (1990). “The ROD shall describe the following statutory requirements as they relate to the scope and objectives of the action: ... The [ARARs] ... that the remedy will attain.” 40 C.F.R. § 300.430(f)(5)(ii)(B) (1990) (emphasis added). Based on its own regulations, then, EPA must make an appropriate evaluation of whether a selected remedy will attain ARARs. Any other result would essentially nullify judicial review of consent decrees until completion of the remedial action, at which time compliance with CERCLA’s goals may be difficult, as human health and the environment may have further deteriorated and the PRPs may be insolvent.
Our review of the various CERCLA provisions dealing with ARARs also supports the state’s argument that EPA must determine prior to implementation whether a remedy will meet designated ARARs for a particular site. For instance, although shrouded in considerable ambiguity, the language of section 9621(d)(4) indicates EPA has such a duty. That provision allows EPA to select a remedial action “that does not attain a level or standard of control at least equivalent to a legally applicable or relevant and appropriate standard, requirement, criteria,” if it finds that
(A) the remedial action selected is only part of a total remedial action that will attain such level or standard of control when completed ...
(B) compliance with such requirement at that facility will result in greater risk to human health and the Environment than alternative options; \
(C) compliance with such requirements is technically impracticable from an engineering perspective;
(D) the remedial action selected will attain a standard of performance that is equivalent to that required under the otherwise applicable standard, requirement, criteria, or limitation, through use of another method or approach;
(E) with respect to a State standard, requirement, criteria, or limitation, the State has not consistently applied (or demonstrated the intention to consistently apply) the standard, requirement, criteria, or limitation in similar circumstances at other remedial actions within the state____; or
(F) in the case of a remedial action to be undertaken solely under section 9604 of this title using the Fund, selection of a remedial action that attains such level or control will not provide a balance between the need for protection of public health and welfare and the environment at that facility under consideration, and the availability of amounts from the Fund to respond to other sites____
42 U.S.C. § 9621(d)(4) (emphasis added). See also 42 U.S.C. § 9621(f)(2)(B) (a state may intervene before entry of the consent decree and challenge a waiver of an ARAR, and if successful, the remedial action shall conform to that ARAR). The waiver of compliance with an ARAR would not mean much if it could only be invoked at the completion of the remedy. While EPA need not and cannot determine with absolute certainty whether a proposed remedy will attain a particular ARAR for the site at issue, we conclude it must make an appropriate and good faith evaluation, subject to the standard of review discussed below in subsection VI(C), or waive compliance with the ARAR.
In this case it is clear EPA never conclusively determined during negotiations that soil flushing would attain the relevant ARAR at the completion of the remedy:
Had EPA made such a determination, it never would have required a laboratory test or required the implementation of an alternate permanent remedy if the defendants cannot satisfy EPA that soil flushing will work at the Rose Site. All EPA determined was that soil flushing may be a viable remedy at the site and determined to give the defendants a chance to demonstrate whether it will work.
Brief for the United States, at 32 n. 38. Section 9621(d)(4) requires that EPA make specific findings and publish them when it invokes a waiver, the latter requirement clearly not having been complied with in this case. We nevertheless hold that EPA has waived the ARARs for soil flushing based on the finding that “the remedial action selected is only part of a total remedial action that will attain such level or standard of control when completed.” 42 U.S.C. § 9621(d)(4)(A) (emphasis added). See Exh. 3.22a, Rod Amendment, at 4 (In reference to the effectiveness of soil flushing, the amended ROD stated: “provided appropriate target cleanup levels are met, all ARARs as in the ROD, would be attained.”) (emphasis added). In other words, EPA recognized that if soil flushing did not in fact attain the ARARs the defendants would have to carry out an alternative remedy to comply with them. Accordingly, the district court correctly allowed the state to intervene under section 9621(f), prior to entry of the consent decree, to challenge the waiver of Michigan’s anti-degradation law.
Under section 9621, a state may intervene in an action before entry of the consent decree and challenge the waiver of an ARAR, and if the waiver is not supported by substantial evidence, the court is required to conform the remedial action to that ARAR. 42 U.S.C. § 9621(f)(2)(B). In this case, as we find that EPA implicitly waived all ARARs for soil flushing on the basis that the decree as a whole would attain them, the state must show by substantial evidence that EPA’s waiver is unlawful.
We do not believe that the state has met its evidentiary burden in this respect. A number of courts have equated the substantial evidence standard with the arbitrary and capricious standard. The difference between the two standards at issue has been deemed “primarily a semantic distinction,” Central States Enter. Inc. v. ICC, 780 F.2d 664, 674 n. 10 (7th Cir.1985), being “ ‘one and the same’ insofar as the requisite degree of evidentiary support is concerned.” Consumers Union of U.S., Inc. v. FTC, 801 F.2d 417, 422 (D.C.Cir.1986) (citation omitted). At least for purposes of section 9621(f)(2)(B), however, the legislative history of CERCLA distinguishes the two standards: “This standard is different than the arbitrary and capricious standard ... and is intended to subject the validity of the remedial action decision challenged by the State to more searching scrutiny.” 132 Cong.Rec. S14,-917 (daily ed. Oct. 3, 1986) (Statement of Sen. Mitchell).
Nevertheless, in previously determining that the overall decree and the decision to use soil flushing were not arbitrary and capricious, we conducted a thorough review of the evidence in the record which in our minds sufficiently compensates for any alleged difference in the two standards of review. Based on reasons and evidence earlier discussed, we find that there is substantial evidence in the record to support and justify EPA’s conclusion that the remedial action as a whole will attain the ARARs for the Rose Site. Should soil flushing fail, defendants must propose an alternate remedy that will attain all TCL’s embodied in the decree and be as protective to human health and the environment as excavation and incineration.
Again, we emphasize that EPA cannot and is under no legal obligation to determine with absolute certainty whether a proposed remedial action will attain ARARs. If the decree is binding on the parties, requires attainment of all ARARs, and provides sufficient safeguards for careful implementation of proposed remedies which include proven technologies that either have been or are being used at similar sites or which are subject to testing under specified performance conditions, then it will be difficult for a court which lacks scientific expertise to find that the state has proven by substantial evidence that the remedial action at a particular site will not attain ARARs. The record contains evidence indicating that both soil flushing and incineration have been successfully used to remedy hazardous sites to pre-determined cleanup levels. Moreover, the state in this case may always come back to court at the completion of the remedial action and persuade us that the Phase I and/or Phase II TCLs have not been achieved. See 42 U.S.C. § 9621(e). We agree with the district court that the state has failed to present enough evidence to persuade us that the remedial action as a whole will not attain ARARs at its completion.
C. Whether Implementation of Soil Flushing Will by Definition Violate Michigan’s Anti-degradation Law.
While we conclude that the remedial action as a whole will eventually attain Rose Site ARARs, even though soil flushing may not, amici suggest that the use of soil flushing by definition violates the state anti-degradation ARAR because it constitutes a discharge of contaminants into the ground water of the Site. Clearly, if the monitoring wells did not collect most or all of the flushate, then soil flushing could degrade groundwaters offsite thus technically violating the state ARAR. As mentioned earlier, the required testing will demonstrate whether soil flushing will work at the Rose Site. Meanwhile, the WRCA and Part 22 Rules remain applicable and relevant to the Site.
Even if soil flushing only decreases the level of contaminants in the groundwater and does not degrade groundwater outside the contaminated areas, it would be illogical to interpret Michigan’s anti-degradation law as prohibiting its use outright. The remedy’s goal is to restore the environment, not further degrade it. The fact that the State of Michigan has approved soil flushing at other sites demonstrates that the remedy is not a per se violation of the anti-degradation law. Though soil flushing requires a discharge of hazardous chemicals into the groundwater, the Part 22 Rules suggest that soil flushing falls within a “cleanup” exception to the WRCA’s prohibition of such discharges:
Discharges into groundwaters may be made, consistent with the requirements of the act and applicable rules, if necessary measures are taken to prevent degradation of groundwaters in usable acquifers. The following are such measures:
(a) Proper wastewater treatment.
ifc ifc »fc * sfc *
(b) Containment of the discharge within the boundaries of the operation or activity defined by the hydrogeological study required by R. 323.2207.
Mieh.Admin.Code R. 323.2205(2) (emphasis added). Soil flushing could be considered part of the treatment and containment of “waste water” within the boundaries of the cleanup operation, as the contaminants in the flushate will be treated and removed by the groundwater extraction system. See Exh. 3.22a, ROD Amendment, at 3 (“the groundwater extraction system would be pulling back the contaminant plume, which has not yet left the site.”).
We believe that EPA’s regulations advance a reasonable approach to the application of Michigan's anti-degradation law. While we have already stated that general state goals like Michigan’s anti-degradation law “have the same weight as explicit numerical standards,” according to EPA “the former may have to be interpreted in terms of a site and therefore may allow more flexibility in approach.” Interim Guidance, 52 Fed.Reg. at 32,498 (emphasis added). In essence, “EPA wants to clarify that it recognizes that ARARs that are used to determine final remediation levels apply only at the completion of the action.” NCP, Final Rule, 55 Fed.Reg. at 8755. Gf. Proposed Rule, 53 Fed.Reg. at 51440 (“Although not compelled by statute, EPA is proposing that the applicable or relevant and appropriate requirements of other laws [such as CWA effluent discharge limitations] pertinent to a remedial action itself must be met during the conduct of the remedial action as well as at the completion of the remedial action unless a waiver is invoked {see § 300.435(b)(2)).”)). Thus, while soil flushing could technically be regarded as violative of Michigan’s anti-degradation law, that ARAR should only apply at the completion of the action — unless for some reason the testing of soil flushing shows that it is not decreasing, but increasing the level of contaminants in the groundwater, in which case EPA will not approve its use at the Rose Site. Consequently, we feel the WRCA and Part 22 Rules would not prohibit soil flushing as long as it is used as a remedial action and is protective of human health and the environment.
D. Whether the Decree’s Covenant Not to Sue Violates CERCLA Section 122(f)(3)
The State of Michigan argues that Section XYII of the Consent Decree, the Covenant Not to Sue, violates 42 U.S.C. § 9622(f)(3), which provides that such a covenant “shall not take effect until the President certifies that remedial action has been completed in accordance with the requirements of this chapter____” However, our reading of the statute in light of this particular consent decree indicates that the covenant not to sue is valid as proposed.
As noted previously, one of the principal reasons Congress expressly permitted the President to enter into consent decrees was the desire to encourage settlements between EPA and PRPs. Such settlements increase the likelihood that the settling defendants, rather than the federal government, will bear the cost of cleaning up hazardous waste sites. Covenants not to sue are one incentive which CERCLA allows the government to offer to the defendants to encourage such settlements. As long as those covenants comply with the statutory requirements of CERCLA, we will uphold them.
CERCLA permits the United States to enter into covenants not to sue with settling defendants if such covenants are in the public interest. 42 U.S.C. § 9622(f)(1). The statute lists several factors to consider in the evaluation of a covenant not to sue:
(A) The effectiveness and reliability of the remedy, in light of the other alternative remedies considered for the facility concerned;
(B) The nature of the risks remaining at the facility;
(C) The extent to which performance standards are included in the order or decree;
(D) The extent to which the response action provides a complete remedy for the facility, including a reduction in the hazardous nature of the substances at the facility;
(E) The extent to which the technology used in the response action is demonstrated to be effective;
(F) Whether the Fund [federal Superfund] or other sources of funding would be available for any additional remedial actions that might eventually be necessary at the facility; and
(G) Whether the remedial action will be carried out, in whole or in significant part, by the responsible parties themselves.
Id. § 9622(f)(4).
Weighing each of these factors, we find that the covenant not to sue is reasonable and in the public interest. The decree requires the settling defendants to implement an effective remedy which will attain specific target levels designed to ensure public health and restore the soil and water at the site. While the effectiveness of soil flushing has not yet been demonstrated at this site, the decree requires the defendants to test and demonstrate the workability of that proven technology. Alternative methods must be developed and implemented if soil flushing does not prove feasible. The decree makes specific provision for a trust fund to cover anticipated costs during Phase II of the cleanup, relieving the United States of this financial obligation. Finally and most significantly for this appeal, the covenant not to sue does not take effect until the settling defendants have completed their obligations under the agreement, aside from long term monitoring requirements. Thus all the factors in 42 U.S.C. § 9622(f)(4) tilt in favor of enforcement of the covenant not to sue as written.
The consent decree at issue here provides that the United States will not sue the settling defendants for “any and all claims available to the United States under Sections 106 and 107 of CERCLA, Section 7003 of RCRA, other Federal environmental statutes and any and all claims available under state law, including the common law of nuisance, which are based on any of the facts known to the U.S. EPA at the time of entry of this Decree____” Consent Decree Section XVII. The covenant does not release the settling defendants from potential future liability arising from: (1) hazardous substance removal which fails to comply with the statutory requirements of 42 U.S.C. § 9622(f)(2)(B); (2) natural resource damages; (3) criminal liability; (4) claims based on a failure by the settling defendants to meet the requirements of the consent decree; and (5) liability for violations of federal law which occur during implementation of the remedial action.
Additionally, the United States reserves the right in the decree to (1) institute proceedings in a new action or to issue a new order, pursuant to Section 106 of CERCLA, 42 U.S.C. § 9606, seeking to compel the settling defendants to perform any additional remedial action at the Site necessitated by a release from the Site, and (2) institute proceedings in a new action pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607, to seek reimbursement to the United States for its response costs for any additional response action undertaken by EPA under CERCLA at the Site, if: (a) conditions at the Site, previously unknown to the United States, are discovered after the entry of the consent decree, or (b) information is received after entry of the consent decree, and these previously unknown conditions or this new information indicate that the remedial action is not protective of human health and the environment. EPA also reserves the right under the decree to sue any person other than the settling defendants in connection with the Site, which it is in the process of doing.
The challenge to the covenant not to sue in this case concerns the two-phase cleanup formula described in the decree. Though the settling defendants’ obligations essentially end upon attainment of Phase I TCLs, the remedial action will continue at the Site using money from the trust fund they are required to establish. The State of Michigan argues that the covenant not to sue, which may be enforceable once Phase I levels are reached, violates the provision in 42 U.S.C. § 9622(f)(3) which prevents such covenants from taking effect before the President certifies that the remedial action has been completed.
However, we find that this consent decree is written to ensure that the covenant not to sue takes effect only when defendants have completed their work. This satisfies the congressional intent expressed in section 9622(f)(3), while still encouraging a settlement in the public interest as described in section 9622(f)(4). The consent decree expressly provides that only upon certification from the President that the settling defendants have completed their work under the decree and have satisfied the conditions of section 9622(f)(2)(B) of CERCLA may the covenant not to sue take effect. Even though EPA will continue to clean up the Site using funds provided by the settling defendants, the work of defendants will be finished once Phase I levels are achieved.
Were the covenant not to sue to take effect at the end of Phase II instead of Phase I, the terms of the decree would provide no additional legal remedies to the government against defendants beyond those which are present under the decree as written. Once defendants complete their work as required under the decree, no reason remains for them to be subject to further liability, aside from the important exceptions which the decree explicitly provides. Therefore the covenant not to sue may properly take effect at that point, even though further cleanup efforts will occur at the Site. Defendants can only be held to the obligations as agreed to by all parties in the decree, and the covenant not to sue should not and does not increase or lessen those obligations.
This reading of the decree is consistent with a 1987 EPA guidance document discussing the possible effective date of covenants not to sue under CERCLA. While such covenants can only take effect upon completion of remedial action, “EPA interprets completion of the remedial action as that date at which remedial construction has been completed. Where a remedy requires operational activities, remedial construction would be judged complete when it can be demonstrated that the operation of the remedy is successfully attaining the requirements set forth in the ROD____” Memorandum to EPA Regional Administrators concerning Covenants Not to Sue (Attachment 1 to Amended Brief for the United States, p. 8) (July 10, 1987). All of the testing and construction will be completed before the covenant not to sue takes effect in this case, and the Phase II cleanup is to be conducted by EPA, not the settling defendants.
The United States has reserved the right to sue for noncompliance with the terms of the decree. This provision is crucial, for it ensures that further legal action may be initiated to enforce the agreement as written. In this respect, the consent decree is no different than any other, for it establishes limits on the extent of the settling parties’ liabilities. Any consent decree which failed to set such limits would hardly serve as an inducement to settlement. The State of Michigan incorrectly reads the decree as absolving the settling defendants of their obligations to conduct long term groundwater monitoring after the attainment of Phase I levels and issuance of the certificate of completion. The exclusion from the covenant not to sue’s coverage of “Claims based on a failure by the Settling Defendants to meet the requirements of this Consent Decree” will allow EPA or other aggrieved parties to bring legal action to force compliance with the terms of the decree, including the monitoring requirements, even after the covenant not to sue takes effect. 42 U.S.C. § 9622(i).
The consent decree does affirmatively bind the settling defendants to propose, test and implement remedial action which will attain the Phase I TCLs. In addition, defendants must create a $500,000 trust fund — which is expected to have grown to $1.2 million before it is needed — to meet the anticipated costs of attaining Phase II TCLs. The covenant not to sue does not alter or diminish the legal obligations of the settling defendants under the decree. The exceptions from the covenant not to sue for potential criminal acts, for expenses which arise out of conditions unknown at the time of the decree’s entry, and natural resource damage, as well as the other exceptions, will ensure that the defendants meet their legal obligations under the decree and do not leave the cleanup unfinished.
E. Whether the Decree Violates CERC-LA Section 10h(c)(3)
The state claims that the decree violates 42 U.S.C. § 9604(c)(3) which declares that EPA “shall not provide any remedial action pursuant to this section ... unless the State in which the release occurs first enters into a contract or cooperative agreement,” thus setting up a joint federal-state cost-sharing and cleanup arrangement. Section 9604 deals with remedies provided by the President or his delegatee and financed by the Superfund.
On its face, however, the decree does not invoke section 9604. While EPA will continue operating the soil flushing and water extraction system after the remedial action will have attained Phase I TCL levels, those costs will be financed from the trust fund set up by the settling defendants through a consent decree based on section 9606, not section 9604. Cf. United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 579 F.Supp. 823, 850 (W.D.Mo.1984) (“An action brought pursuant to sections 106(a) and 107(a) are [sic] independent and separate of the provisions authorizing use of the Superfund, sections 105(c)(3) and 111.”); United States v. Reilly Tar & Chemical Co., 546 F.Supp. 1100, 1118 (D.Minn.1983) (section 9604(c)(3)’s requirement of cooperative agreement before proceeding with a response is not applicable to private cost recovery actions under section 9607).
We recognize that there is no guarantee the money provided by defendants will be sufficient to operate the soil flushing and groundwater extraction systems until the remedial action is complete. See Consent Decree Section V(A) (“Once the Settling Defendants have paid the total sum of Five Hundred Thousand Dollars ($500,000.00) into the trust fund, the Settling Defendants shall not be required to pay or contribute further to the trust fund.”). Moreover, soil flushing may only be capable of attaining Phase I levels, thus perhaps forcing EPA to implement more expensive technology to finish the cleanup and requiring the use of Superfund monies after all allocated funds are exhausted.
However, we believe that it is unlikely EPA will be required to use Superfund monies for any part of the cleanup from Phase I to Phase II TCLs. Defendants must thoroughly test the effectiveness of soil flushing, both in the lab and at the Site, before full implementation will occur. While defendants are only required to prove that soil flushing will attain Phase I TCLs within 10 years of implementation, EPA will have an early opportunity to determine to the maximum extent practicable whether that remedy will also attain Phase II TCLs and, if not, it can prepare an alternate remedy which is not only effective but also cost-efficient. If EPA determines that soil flushing will not attain even Phase I TCL levels, it will likely accept the proposed alternate remedy which is the cheapest to “operate” (even though it may be expensive to “implement,” a cost borne by defendants under the decree). Currently, among possible options are a soil vacuum extraction system, soil venting, heat injection, and incineration — solutions which may or may not require monies in addition to the sum in the trust fund in order to operate after implementation and Phase I TCLs are attained. Finally, we should point out that EPA has filed suit to recover cleanup costs from other parties, United States v. American Renovating Co., No. 89CV71712 DT (E.D.Mich. June 6, 1989), litigation which will likely provide additional funds from which to help cover unexpected costs of the Rose Site cleanup.
We do not believe that Congress intended to give the states an absolute right to veto reasonable consent decrees [by refusing to enter into cost-sharing agreements] where a good faith effort has been made by EPA to put all of the cost on the PRPs but the possibility exists that Superfund monies will be necessary to finish the cleanup. The decree’s safeguards and cleanup requirements satisfy the State of Michigan’s interest in protecting the environment and the health of its citizens.
The main purpose of the decree and CERCLA, besides cleaning up the Rose Site, is to shift as much of the financial burden of the cleanup onto PRPs so that Superfund monies may be used elsewhere. Likewise, the purpose of section 9604’s restriction on the use of Superfund money is “to prevent improvident or disproportionate use of a limited fund to clean up only a few of the many sites for which no solvent, responsible parties can be found.” United States v. Wade, 577 F.Supp. 1326, 1336 (E.D.Pa.1983). The decree at issue complies with these goals. While the remedial action may eventually require federal funding, on its face the decree does not require application of section 9604. Therefore, compliance with that provision is not presently required.
VIII. PREEMPTION OF STATE LAW CLAIMS
Under Counts V through VII of its complaint filed with the district court on February 14, 1989, the State of Michigan sought injunctive and declaratory relief pursuant to Michigan Water Resources Commission Act (“WRCA”), M.C.L. 323.1 et seq. (Count V); the Michigan Environmental Protection Act (“MEPA”), M.C.L. 691.1201 et seq. (Count VI); and Michigan’s common law of public nuisance (Count VII). The district court held that these three counts of the state’s complaint did not state a viable cause of action because they were preempted by CERCLA. According to the district court, Michigan sought relief which was inconsistent with the federal remedies embodied in the consent decree, and therefore the state could not pursue its own remedies. Akzo Coatings, 719 F.Supp. at 580.
We believe the district court correctly held that if remedies proposed by a state do not become embodied in the consent decree by virtue of the statute’s provisions for incorporation of state ARARs, the state may only enforce against the PRPs the remedies adopted in the decree, and no others. We do not agree with the suggestion in the brief of the United States that a state may not obtain additional relief beyond the terms of a consent decree as initially presented by EPA, but we read the statute to say that whatever remedy is adopted in the final decree as entered by a federal court sets the parameters of relief available to the state against the PRPs. The state is still free of course to pursue additional remedies at its own expense, as long as those remedies do not conflict or interfere with the federally-approved cleanup.
“In determining whether a state statute is pre-empted by federal law and therefore invalid under the Supremacy Clause of the Constitution, our sole task is to ascertain the intent of Congress.” California Fed. Sav. & Loan Ass’n. v. Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987). Preemption can occur in three instances: when Congress, while acting within constitutional limits, preempts state law by stating so in express terms; when the federal regulation is sufficiently comprehensive to make it reasonable to infer that Congress left no room for supplementary state regulation; and in those areas where Congress has not completely displaced state regulation, federal law may preempt state law to the extent that the state law actually conflicts with the federal law. Id. at 280-81, 107 S.Ct. at 689-90. The latter conflict may occur “because ‘compliance with both federal and state regulations is a physical impossibility,’ Florida Lime & Avacado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 [83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248] (1963), or because the state law stands ‘as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Hines v. Davidowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941).” California Fed. Sav. & Loan, 479 U.S. at 281, 107 S.Ct. at 690.
In this case, the use of the term preemption is misleading, for CERCLA sets only a floor, not a ceiling, for environmental protection. Those state laws which establish more stringent environmental standards are not preempted by CERCLA. See 42 U.S.C. § 9621(d)(2)(A). However, the language of CERCLA and the legislative history of that act indicate that once the consent decree is entered by a federal court — giving the decree the force of law— alternative state remedies may not be pursued. See 42 U.S.C. § 9621(f). At that point, other remedies based on state law are in effect preempted by the federal and state law embodied in the decree through a mechanism incorporating the federal standards and any relevant more stringent state standards. Because it is the terms of the consent decree, and not the language of CERCLA, which preempt alternative state remedies, the use of the word preemption creates some confusion in this case.
The first two instances of preemption cited in California Fed. Sav. & Loan, supra, are clearly not present here. Congress has neither expressly stated that CERCLA preempts state environmental regulation, (beyond the obvious preemption of less stringent state standards), nor enacted so comprehensive a statute that we may infer an intent to displace all supplementary state regulation. Indeed, CERC-LA states: “Nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within the state.” 42 U.S.C. § 9614(a). The provisions examined above in our discussion of the ARARs reflect Congress’ special concern that state interests in the health and welfare of their citizens be preserved, even in the face of a comprehensive federal environmental statute. See New York v. Shore Realty Corp., 759 F.2d 1032 (2nd Cir.1985) (injunction could be issued under state’s public nuisance law against property owner responsible for CERCLA cleanup costs where EPA had taken no part in the matter).
CERCLA’s legislative history, like the text of the statute itself, indicates that Congress never intended state environmental laws to be ignored or preempted in the selection of federal remedies. Senator Stafford, an original cosponsor of CERCLA who played an active role in its passage and reauthorization, told his colleagues that the law “establishes an admittedly complex, and very probably confusing, mechanism which allows for the preservation of these [state] laws and prevents unilateral action to override them.” 132 Cong. Rec. S17136 (Oct. 17, 1986). The statute’s provisions in section 9621, “[b]oth in substance and procedure, ... were painstakingly developed for the purpose of establishing a cleanup system which is required, by law, to accommodate itself to the requirements of Federal and State laws____” Id. “Nowhere in section 121 [42 U.S.C. § 9621] is there authority for the Federal Government to preempt, for good reasons or bad, applicable and appropriate State law.” Id.
Senator Mitchell, also a key participant in the drafting of the 1986 SARA amendments to the statute, inserted his views on preemption in the Congressional Record on the day President Reagan signed the law.
[0]ne of the motivations for reauthorization was the opportunity to correct the Supreme Court ruling in Exxon v. Hunt, in which the Court held that New Jersey’s Superfund was preempted____ None of our other environmental statutes, with a limited exception in the Clean Air Act, are preemptive. This is an issue of great importance to many of us, and we have stated repeatedly in this bill that there is no preemption. Any other conclusion is wholly without foundation.
132 Cong.Rec. S17,212 (Oct. 17, 1986). Discussing the law’s provisions for judicial review of consent decrees and other proposed settlements, Senator Mitchell stated, “Clearly preserved, for example, are challenges to the selection or adequacy of remedies based on state nuisance law, or actions to abate the hazardous substance release itself, independent of federal response action.” Id.
Congress then, did not intend for EPA or federal courts to ignore state environmental standards when selecting or approving cleanup remedies. The mechanism for state involvement in the development of a remedial action plan functions as follows:
(2)(A) At least 30 days prior to the entering of any consent decree, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority of subsection (d)(4) of this section, the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, the State may become a signatory to the consent decree.
(2)(B) If the State does not concur in such selection, and the State desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State shall intervene in the action under section 9606 of this title before entry of the consent decree, to seek to have the remedial action so conform. Such intervention shall be a matter of right. The remedial action shall conform to such standard, requirement, criteria, or limitation if the State establishes, on the administrative record, that the finding of the President was not supported by substantial evidence. If the court determines that the remedial action shall conform to such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State may become a signatory to the decree. If the court determines that the remedial action need not conform to such standard, requirement, criteria, or limitation, and the State pays or assures the payment of the additional costs attributable to meeting the standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State shall become a signatory to the decree.
(2)(C) The President may conclude settlement negotiations with potentially responsible parties without State concurrence.
42 U.S.C. § 9621(f)(2).
The three counts of the State of Michigan’s complaint which the district court found preempted were pled as alternative claims to be considered in event the district court had denied entry of the consent decree. The district court, in ruling on the state’s motion to intervene, which was filed contemporaneously with the state’s complaint, found that Counts V, VI and VII conflicted with the mechanics of CERCLA and the terms of the consent decree, and therefore failed to state viable claims. Transcript of district court proceedings at 51-55 (5/4/89). We believe this finding was correct, not because an inherent conflict exists between Michigan law and CERCLA, but because the district court properly determined that the state’s request for an alternative remedy was at odds with the terms of the consent decree as we explain hereafter.
Section 9621(f)(2)(A) indicates that the State of Michigan was entitled to challenge the selection of the remedial action prior to the entry of the decree. That provision indicates that such a challenge is permitted only when a proposed remedy in a decree would fail to attain state ARARs. Here the very applicability of Michigan’s laws— whether they are in fact ARARs — and whether the soil flushing remedy would attain the state standards, were open questions, and the district court properly allowed Michigan to intervene in order for the court to answer those questions. Because the district court determined that Michigan had failed to show by substantial evidence that the proposed remedial action as a whole would not attain all relevant and applicable state standards under Michigan’s environmental laws, the important provision for state involvement in the selection of a remedy found in section 9621(f)(2)(B) did not come into play. It is that provision which protects more stringent state standards from being preempted by an EPA-proposed remedy, but the court need only incorporate state-proposed alternative relief if it determines by substantial evidence that EPA’s proposed remedy will not attain the state ARARs, as explained in section 9621(f)(2)(A). Because we agree with the district court that the decree at issue will attain Michigan’s applicable environmental standards, we similarly need not address the mechanism whereby alternative relief demanded by the state may be incorporated into the decree.
That mechanism is important however in showing how Congress has provided for state standards to become part of federal consent decrees, while preventing states from pursuing conflicting relief apart from the terms of a final decree. Under CERCLA, Michigan was free to argue that the decree as proposed by EPA would not attain the state’s environmental requirements, and could offer the terms of the 1987 ROD as a possible substitute, which was done in the state’s complaint of May, 1989. However, even had the district court, or our own court, found that the proposed decree would not have achieved Michigan’s ARARs, we believe the district court would not have had jurisdiction to incorporate the relief demanded by the State of Michigan into the decree. Instead it would have been required to remand the decree to EPA with instructions to amend its proposed remedial action so as to attain the state ARARs. As the statute indicates, “[i]f the court determines that the remedial action shall conform to such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State may become a signatory to the decree.” While the statute does not say so expressly, we believe this modification would have to be made by EPA, not the reviewing court, upon its determination that a state ARAR would not be attained.
As noted in our discussion of the standard of review, Congress has properly left to the President and EPA the task of developing fair and reasonable decrees. The district court therefore acted properly in ruling on May 4, 1989, over two months before approving the decree, that Michigan had failed to state viable claims in counts V-VII of its complaint. The district court correctly determined that even if it were later to determine that the proposed decree would not attain state ARARs, counts V-VII demanded relief — i.e., reimposition of the 1987 ROD and its incineration remedy along with recovery of the state’s cleanup costs — which the court was not empowered to grant. Congress could not have intended that federal courts or the states be empowered to rewrite consent decrees to conform them to state ARARs. That is a task properly left to EPA. Once a court determines under section 9621(f)(2) that a proposed decree will not attain state ARARs, the court should remand the decree with orders to EPA to make appropriate changes using the agency’s expertise and the guidelines of the state ARARs. The district court therefore properly dismissed the three counts which sought relief the court could not itself insert into the decree, even as the court allowed the state to intervene to assert that its ARARs would not be met. Because we agree with the district court that the ARARs will be attained by the decree, we need not remand to EPA with instructions for modifications to attain the state standards.
Our reading of section 9621(f), a provision which as Senator Stafford noted, is “admittedly complex, and very probably confusing,” reconciles the earlier quoted statements of Senators Stafford and Mitchell that state environmental standards are not preempted by CERCLA, with the comment by Rep. Eckert, also a key figure in the 1986 reauthorization of CERCLA, who said, “[w]hen a site is cleaned up in accordance with section 121, including requirements relating to State involvement, a State may not then bring a separate action in State court to impose additional or more stringent state standards.” 132 Cong.Rec. H 9,576 (October 8, 1986). While our duty in interpreting statutes does not extend to reconciling all congressional comments concerning a law, we believe our interpretation is consistent with the comments of all three legislators, because we find that more stringent state environmental laws must be incorporated by EPA into federal consent decrees if relevant and applicable, but thereafter the state may not seek other remedies that are at odds with the terms of the decree.
The Tenth Circuit has recently held that states may not use CERCLA to obtain in-junctive relief against polluters, apart from the terms of a valid consent decree. Colorado v. Idarado Mining Co., 916 F.2d 1486 (10th Cir.1990). Our holding today is entirely consistent with the Tenth Circuit’s reasoning, though we decline to decide the question specifically addressed there concerning the rights of states when EPA has taken no action at a site and the state seeks injunctive relief under CERCLA rather than under state statutes. The Tenth Circuit’s opinion holds that 42 U.S.C. § 9621(e)(2), which states that “[a] State may enforce any Federal or State standard, requirement, criteria, or limitation to which the remedial action is required to conform under this chapter ...,” refers only to those federal and state standards which are embodied in a consent decree or other settlement through the provisions for state participation found in section 9621(f)(2). The Tenth Circuit found that this interpretation recognizes Congress’ intent to allow for state standards to be met when relevant and applicable, without allowing states to impose additional obligations on PRPs beyond the terms of a federal agreement. We agree, but confine our holding to the more limited context of this case in which EPA proposed a consent decree under CERCLA and Michigan filed claims for injunctive relief under state law.
CERCLA does not preempt state environmental ARARs which set higher cleanup standards than the federal statute. Instead, it creates a mechanism whereby state environmental laws which are more stringent than federal standards are to be incorporated (unless justifiably waived) into a consent decree at the time a federal district court reviews the decree. Yet once the decree is entered, the state may not seek to impose additional penalties on the defendants for state and federal environmental violations adequately covered by the decree. This statutory mechanism accomplishes Congress’ dual goal of allowing states with strong environmental laws to maintain the high cleanup standards their citizens desire, while preventing states from unduly delaying remedies properly entered by a federal court pursuant to CERCLA. We eschew use of the word preemption in this context because of the distinction between preemption of state ARARs, which CERCLA does not call for (unless less stringent than their federal counterparts), and preclusion of independent state remedies following entry of a consent decree, which we find CERCLA does require. Aside from this semantic distinction, we affirm the district court’s dismissal of Counts V-VII of the State of Michigan’s complaint.
Nothing in our holding today should be viewed as denying the State of Michigan the right under 42 U.S.C. § 9621(e)(2) to enforce the terms of the consent decree against the settling defendants. Additionally, the State of Michigan is entitled to spend its own money in an effort to clean up the Rose Site beyond the terms of the consent decree, as allowed by section 9621(f)(2)(B). The state may not however interfere with the proper implementation of the decree.
IX. CONCLUSION
In summary, it is necessary to make some additional comments regarding the scope of our review. We have meticulously poured over the voluminous record and examined, in detail, all of the arguments made on appeal. Cf. Ethyl Corp., supra, 541 F.2d at 36 (“The more technical the case, the more intensive must be the court’s efforts to understand the evidence ... [to] properly perform its appellate function.”). We believe the consent decree adequately takes into account all of CERCLA’s requirements.
In particular, we do not find that the adoption of soil flushing as a remedy for the Rose Site subsurface soils is an arbitrary and capricious choice. EPA’s reversal of its original opinion on the effectiveness of soil flushing has been adequately explained. We further find that EPA would not have acted otherwise had that agency considered the Hayes affidavit. Allowing defendants to test soil flushing under EPA’s supervision and pursuant to an established timetable is both fair and reasonable, especially given the fact that both EPA and the State of Michigan regard soil flushing as a cost-effective, proven technology.
We have found Michigan’s anti-degradation law to be an ARAR. Nevertheless we conclude that EPA implicitly waived that ARAR, and that the state has not met its burden to show, by substantial evidence, that the waiver was unjustified. In essence, we agree with the district court that the remedial action as a whole can attain all federal and state ARARs. In addition, we point out that EPA has some flexibility in determining how to comply with Michigan’s anti-degradation law. We cannot agree with amici that soil flushing, by definition, violates the state ARAR.
We also disagree with the state that the decree’s covenant not to sue violates 42 U.S.C. § 9622(f)(3). That covenant takes effect only when defendants have completed their work and thus is valid. Moreover, under the factors of 42 U.S.C. § 9622(f)(4), the covenant not to sue is reasonable and in the public interest, especially when examined in light of its exceptions.
As the remedial action plan, on its face, is to be funded by defendants, it is irrelevant that the state has not entered into a cost-sharing agreement with EPA. The possibility that the Rose Site cleanup may eventually require Superfund monies is insufficient to give the State of Michigan veto power over entry and implementation of a valid consent decree designed to place the total cost of cleanup on the PRPs.
Finally, we agree with the district court that counts V-VII of the State of Michigan’s complaint were properly dismissed. Because the consent decree will attain Michigan’s applicable standards, we need not consider alternative relief demanded by the state which conflicts with the terms of the decree.
CERCLA and the revised NCP give EPA flexibility to pursue innovative, cost-effective remedies. Though the effectiveness of soil flushing at the Rose Site remains untested, EPA’s inclusion of that remedy was not arbitrary or capricious and is fair and reasonable. We urge the settling defendants to start the testing phase promptly so that a thorough cleanup of the Rose Site may soon begin.
Accordingly, the judgment of the district court is AFFIRMED.
. The defendants are Akzo Coatings of America, Inc., Chrysler Motors Corp., Detrex Corp., Fabri-con Automotive Products, Federal Screw Works, Ford Motor Co., General Motors Corp., Hoechst Celanese Corp., Michigan Industrial Finishes, RPM, Inc., TRW, Inc. and Uniroyal, Inc. The State of Michigan itself did not join in the consent decree.
. "Removal” actions are typically short term or temporary cleanup measures. “Remedial” actions, on the other hand, are generally long term or permanent containment or disposal programs. The terms are further defined in 42 U.S.C. §§ 9601(23), 9601(24).
. The NPL, established by rule by EPA pursuant to Section 105 of CERCLA, lists those hazardous waste sites at which the release of hazardous substances presents the greatest threat to public health, welfare and the environment. 40 C.F.R. Part 300, App. B.
. The factors to be considered by an agency conducting an RI/FS are detailed at 40 C.F.R. § 300.68(e)(2).
. "Groundwater is subsurface water that exists below a water table in soils, rocks, or geological formations that are fully saturated.” The Protection of Groundwater and Public Drinking Supplies: Recent Trends in Litigation and Legislation, 42 Vand.L.Rev., 1649, 1649 (1989) [hereinafter The Protection of Groundwater].
. This involves, almost literally, a baking of the soil using electrically-powered rods.
. Groundwater cleanup at the Rose Site is divided into Phase I and Phase II levels under the consent decree. Phase I levels correspond to a lifetime excess cancer risk of 1 in 100,000 due to continuous exposure to a particular chemical. Phase II levels generally are the ARAR levels, and correspond to a lifetime excess cancer rate of 1 in 1,000,000. Defendants are required to meet the Phase I levels, after which EPA will operate the groundwater extraction and soil flushing systems using a trust fund established by defendants until EPA is satisfied that Phase II levels have been achieved.
. The covenant not to sue does not cover: (1) liability arising from hazardous substances removed from the facility (with one exception not relevant here); (2) natural resource damages; (3) criminal liability; (4) claims based on a failure of the defendants to meet the requirements of the consent decree; and (5) liability for violations of federal law which occur during the implementation of the remedial action plan.
. M.C.L.A. § 323.1, et seq., (Michigan Water Resources Commission Act ("WRCA”)), and Mich.Admin.Code R. 323.2201, et seq., (the “Part 22 Groundwater Regulations”) are collectively referred to as Michigan’s anti-degradation law.
. “In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision.” United States v. Brian N., 900 F.2d 218, 220 (10th Cir.1990).
. The timing of the district court’s review was proper here. While judicial review of citizen suits challenging the implementation of a remedial action plan under CERCLA may not occur until the cleanup has been completed, 42 U.S.C. § 9613(h)(4); see also Schalk v. Reilly, 900 F.2d 1091 (7th Cir.1990); Alabama v. United States EPA, 871 F.2d 1548 (11th Cir.1989), federal district courts do have jurisdiction over an "action to enforce an order issued under section 9606(a),” 42 U.S.C. § 9613(h)(2), as well as an "action under section 9606 of this title in which the United States has moved to compel a remedial action.” 42 U.S.C. § 9613(h)(5). The latter provisions do not contain a requirement that review must wait until the remedy is completed, as is found in the citizen suit provision, and therefore the district court had jurisdiction to consider entry of the consent decree when the decree was presented to the court.
. An important exception to the limited scope of review allowed by CERCLA may arise when EPA has not taken its customary role in developing a remedial cleanup plan. If EPA plays only a limited role in formulating a plan, then the President cannot be deemed to have taken or ordered the remedy, and a reviewing court would not be bound by the administrative record and the arbitrary and capricious standard. See United States v. Allied-Signal Corp., 736 F.Supp. 1553 (N.D.Cal.1990). There the court concluded that where the Navy, not EPA, had developed a remedial action plan, and the Navy was itself partially liable for the cleanup, de novo review was warranted and necessary in the district court. "Had EPA reviewed and approved the remedial action plan devised by the Navy, this might be a different case.” 736 F.Supp. at 1558.
. CERCLA, 42 U.S.C. § 9622: Settlements
(d)(2) Public participation
(A) Filing of proposed judgment — At least 30 days before a final judgment is entered under paragraph (1), [regarding consent decrees], the proposed judgment shall be filed with the court.
(B) Opportunity for comment — The Attorney General shall provide an opportunity to persons who are not named as parties to the action to comment on the proposed judgment before its entry by the court as a final judgment. The Attorney General shall consider, and file with the court, any written comments, views, or allegations relating to the proposed judgment. The Attorney General may withdraw or withhold its consent to the proposed judgment if the comments, views, and allegations concerning the judgment disclose facts or considerations which indicate that the proposed judgment is inappropriate, improper, or inadequate.
. EPA’s regulations are in line with our conclusion on the appropriate standard of review for evidence submitted outside of the administrative record:
The lead agency [EPA] is required to consider comments submitted by interested persons after the close of the public comment period [in front of EPA] only to the extent that the comments contain significant information not contained elsewhere in the administrative record file which could not have been submitted during the public comment period and which substantially support the need to significantly alter the response action. All such comments and any responses thereto shall be placed in the administrative record file.
40 C.F.R. § 300.825(c) (emphasis added).
. The 1987 RI/FS describes the site geology as "a stratified sequence of sand layers, interbed-ded with lenses of silt clay overlying glacial till believed to be laterally continuous beneath the site.”
. See Exh. 3.22a, Amendment at 3. It is not clear how deep the excavation of PCBs will reach, but amici pointed out that under the original ROD excavation of PCB and VOC-contaminated soil would have varied between one and fourteen feet. The amended ROD provides only for excavation of PCB-contaminated soil, which is located at shallower depths than the VOCs, and thus it is unlikely the proposed exea-vation will reach much beyond five to seven feet. Nevertheless, the soil borings show that a lot of the clay is located within the first few feet of soil.
. According to EPA "[s]andy soils may result in uncontrolled migration, and the inclusion of a clay-confining layer would be a desirable measure to control migration.” Exh. 3.2, Technology Screening Guide for Treatment of CERCLA Soils and Sludges (EPA Sept. 1988). Thus, the real impediment to soil flushing’s effectiveness at the Rose Site may be variable permeability, which can produce inconsistent flushing, rather than the presence of clay layers.
. Letter from Tom Mann, MDNR Geologist, to Bob Hayes, MDNR Geologist, Interoffice Communication, Jt.App. at 536 (May 15, 1989). No authority is cited for the proposition that geophysical logs are more accurate than drilling logs. Even assuming that claim is correct, Tom Mann’s conclusions on the results of the geophysical logs do not help us determine the difference in the degree of accuracy between the two types of logs:
Even where a single clay is encountered, the driller’s log will show it as thicker and sandier than the geophysical log indicates; this is probably due to mixing of the cuttings. Thus, the geophysical logs are more accurate. Further, the geophysical logs suggest the clay zones are more competent.
Id. (emphasis added).
. The decree contains a number of other provisions designed to control the quality of the remedial work. Defendants, for example, must follow proper quality assurance procedures, including EPA’s “Interim Guidelines and Specifications for Preparing Quality Assurance Project Plans." Id. Further, “[ajll remedial action work to be performed by the Settling Defendants ... shall be under the direction and supervision of a qualified professional engineer, architect or consultant ... subject to disapproval for good cause____” Consent Decree VI(B).
. As stated in the fact summary, supra, the ROD listed eight specific criteria EPA would consider before substituting soil flushing for incineration. Those criteria, i.e. economies of scale, community acceptance, cleanup time, land regulations, reliability of soil flushing, im-plementability, complete site remediation, and cost effectiveness, were considered either explicitly or implicitly in EPA's explanation of significant differences and the responsiveness summary.
. See, e.g., Exh. 3.3, Remedial Response at Hazardous Waste Sites — Goose Farm, Pumstead, N.J., at 11-14 (Mar. 1984) ("Analysis of the clays indicated that a high level of organics (30mg/g TOC) was seeping slowly through the clay layer;” therefore, "[t]o facilitate flushing of the contaminants from the low permeability clay layer, the pressure injection system was operated with varying pressures by using on/off relays in order to create a pressure pulse.”); Exh. 3.5, In Situ Flushing & Soils Washing Technologies For Superfund Sites — Presented by EPA at RCRA/Superfund Engineering Technology Transfer Symposium, at 117 (“In choosing the soil to be used in the tests, native soils at each of 10 Region II Superfund sites were identified to determine the most commonly occurring soil series,” which was "a fine-to-coarse loamy soil of humid climates, containing zones of clay accumulation.”).
. To the extent that soil flushing could be deemed “innovative” under CERCLA, EPA could still be required to develop such technologies if they offer the potential for “comparable" performance with “proven” technologies. 40 C.F.R. § 300.430(a)(l)(iii)(E).
. Exh. 3.4, EPA Handbook — Remedial Action at Waste Disposal Sites, at 9-46; White, EPA, Shively and Dunkel, CH2M Hill, and Córtese, Summary of Hazardous Waste Treatment at Superfund Site, Current Developments, Env’t Rptr. (BNA) 1121 (Aug. 21, 1987); Exh. 3.21(j), Comments of John Iannone, Civil Engineer for Hart & Associates, Transcript of Public Forum Regarding Proposed Settlement Plan, at 17 (Dec. 1988).
. We find no merit to the state’s claim that soil flushing violates section 9621(b) which gives preference to treatment “which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants and chemicals____” While soil flushing temporarily “increases” the mobility of contaminants, it does so with the goal of "reducing" their mobility permanently. Not only is the state’s argument ironic in light of the fact that if legitimate it would apply to other decrees to which the state has consented, but also section 9621’s directive is merely discretionary and emphasizes permanent, not temporary, results.
. Faced with a complicated consent decree, a New York district court encountered a similar task in determining whether a decree was fair and in the best interest of the public:
Weighing strongly in favor of approval is the fact that the plan can be implemented immediately. Rejection of the plan would result in the expenditure of considerable time, money, and effort in litigation. In the meantime, chemicals from the Site would continue to leach out and further contaminate the surrounding area.
And, of course, as in any lawsuit, plaintiffs have no guarantee of ultimate success. The resources of the governmental parties are limited. If forced to prosecute, they might well extend inordinate amounts of these resources on this single Landfill Site, to the detriment of other areas in other parts of the country. We must keep in mind that the Hyde Park Landfill is only one of many such sites.
Hooker Chemicals & Plastics Corp., 540 F.Supp. at 1080.
. As explained in greater detail below, the decree’s covenant not to sue contains express exceptions for, among other events: natural resource damage; claims based on a failure by the settling defendants to meet the requirements of the consent decree; liability for violations of federal law which occur during implementation of the remedial action; and reimbursement to the government for the cost of any additional response action undertaken by EPA under CERCLA if (a) conditions at the site, previously unknown to the government are discovered after entry of the decree, or (b) information on previously unknown conditions indicates the remedial action is not protective of the human health and the environment. Consent Decree Section VII. The breadth of these exceptions ensures that whatever remedy defendants implement, they will do so carefully. See also 42 U.S.C. § 9607(a). Moreover, EPA has developed a Technical Assistance Grants ("TAG”) program which provides monies to citizen groups with matching funds who wish to satisfy themselves that the cleanup is being conducted as agreed upon.
. At the end of the original ROD, one of EPA's Regional Administrators stated:
In the event that, during the remedial design investigations on the Rose site waste, it is discovered that the cost of thermal destruction exceeds the cost estimate in the Feasibility Study by 50% or that thermal destruction will not be necessary to permanently treat the entire estimated volume of wastes, I will reconsider the Record of Decision to determine if the selected alternative still represents the cost-effective remedy and take appropriate action at that time. The State of Michigan will be consulted in the event that I reconsider my decision.
ROD, Jt.App. at 331.
. Without a settlement, the original ROD remedy would have cost EPA $34 million, of which it was willing to pay about $31 million, with the state paying the other $3 million. EPA, however, expressed concern that due to funding cuts by Congress the $31 million would no longer be available. Exh. 3.22b, Responsiveness Summary, at 16.
. Moreover, if and when soil flushing is deemed inadequate under the decree, defendants are required to propose a new permanent technology within six months, thus preventing undue delays due to ineffective remedial action.
. There are several kinds of applicable or relevant and appropriate environmental requirements (ARARs).
ARARs may be chemical-specific (e.g., an established level for a specific chemical in groundwater), action-specific (e.g., a land disposal restriction for RCRA hazardous wastes), or location-specific (e.g., a restriction on actions that adversely affects wetlands). Thus, the concept is much broader than that of a specific cleanup level for a site.
Starfield, The 1990 Natl. Contingency Plan— More Detail and More Structure, But Still a Balancing Act, 20 ELR 10222, 10230 (June 1990).
. According to EPA, in order for potential state ARARs to be "legally enforceable" they “must be issued in accordance with state procedural laws or standards and contain specific enforcement provisions or be otherwise enforceable under state law.” NCP, Final Rule, 55 Fed.Reg. at 8746. Defendants do not, and could not, contend that Michigan’s anti-degradation law lacks specific enforcement provisions under state law. Section 6(c) of the WRCA, as drafted at the time of the consent decree, states that a violation of section 6(a) “may be abated according to law in an action brought by the Attorney General in a court of competent jurisdiction." M.C.L.A. § 323.6(c). Moreover, section 10 of the WRCA provides for both civil remedies and criminal sanctions for violations of the WRCA or its accompanying administrative rules. M.C.L.A. § 323.10.
. See also Starfield, supra, 20 ELR at 10236 (“If a state law sets forth an anti-degradation goal without regulations or direction as to how to achieve it, the Agency must decide whether the goal constitutes an ARAR (e.g., is it enforceable), and then may exercise flexibility in determining how to comply with the goal.").
. Defendants also contend that the vagueness and unenforceability of Michigan’s anti-degradation law is evident in the inconsistency of its application. The state’s claim before the lower court that section 6(a) of the WRCA and the Part 22 Rules provide cleanup standards with respect to the Rose Site is, according to defendants, inconsistent with their concurrence in a recent ROD stating just the opposite. In 1988, EPA’s ROD for the U.S. Aviex Site in Niles, Michigan, adopted soil flushing as its primary remedy in the RAP. Although soil flushing would be used, the WRCA was found inapplicable because no “discharges” into the groundwater were proposed. Exh. 3.8, U.S. Aviex ROD, at 21. As discussed below, however, we believe that soil flushing, if implemented, would constitute a discharge into the groundwaters of the Rose Site but would also fall within an exception to the WRCA. EPA may not have adequately explained its position in the U.S. Aviex ROD, as its own regulations support our conclusion. See infra subsection B for a discussion of the Rose Site decree’s compliance with Michigan’s anti-degradation law.
Moreover, while under CERCLA an ARAR’s inconsistent application allows EPA to "waive” compliance with that ARAR, see section 9621(d)(4), it is not determinative of whether the state requirement is in fact an ARAR. Therefore, the fact that courts have required, according to defendants, differing levels of cleanup under the WRCA does not affect the determination of whether such a law is a state ARAR if that law is otherwise enforceable. Indeed, as local background groundwater quality naturally varies from acquifer to acquifer, some variation in cleanup requirements is to be expected.
.The Final NCP, which is applicable to ongoing actions {NCP, Final Rule, 55 Fed.Reg. at 8795), deals with the potential applicability of both maximum contaminant levels ("MCLs”) and maximum contaminant level goals ("MCLs”) as federal ARARs
by providing that MCLGs that are greater than zero shall be attained where "relevant and appropriate under the circumstances of the release.” (Thus, it is expected that MCLG’s above zero will generally be the cleanup level for actual and potential drinking water sources.) However, where the MCLG is set at zero (as it is for carcinogens), the relevant MCL would be used as the cleanup standard, where relevant and appropriate.
Starfield, supra, 20 ELR at 10231 (citing 40 C.F.R. § 300.430(e)(2)(i)(B), (Q). The parties have not asserted that any MCLG’s for non-carcinogens are ARARs; moreover, “the rule’s requirement of ‘substantial compliance’ with potentially applicable NCP requirements affords private parties some latitude in meeting the full set of revised NCP provisions.” NCP, Final Rule, 55 Fed.Reg. at 8795.
. Compare Mich.Admin.Code R. 323.2202(m) with R. 323.2202(r), and R 323.2207(5)(c) with R 323.2207(5)(d), which distinguish between those two terms.
. Under their interpretation of the Rules, defendants would not be required to clean up prior degradation because the "existing groundwater quality" would be the reference point for determining violations of Michigan's anti-degradation law.
. See Mich.Admin.Code R. 323.2202(g) (referring to “degradation” as changes in groundwater quality determined by the commission to be a deterioration in terms of the magnitude of the change and the importance of the parameters describing local background groundwater quality).
. "Applicable requirements” are those standards promulgated under federal or state law that specifically address a hazardous substance, pollutant, contaminant, remedial action, or other circumstance at a CERCLA site. In contrast, “relevant and appropriate requirements” are those standards which, while not applicable to a CERCLA remedial action, are promulgated under federal or state law and address problems or situations sufficiently similar to those encountered at a site that their use is well situated to that site. 300 C.F.R. § 300.6; Interim Guidance, 52 Fed.Reg. at 32497; NCP Final Rule, 55 Fed.Reg. at 8742.
. See Brief of Amici at 12 n. 3 (“For purposes of this brief, the amici will assume that attainment of Target Cleanup Levels identified in the 1987 RI/FS and the 1987 Record of Decision will result in attainment of ARARs.”).
. If we held otherwise, EPA could effectively evade state participation in such cases where it had doubts whether a proposed remedial action met relevant ARARs but chose not to make and publish formal findings to that effect.
. While the district court correctly permitted the state to intervene in this case, it allowed the state to challenge the waiver of Michigan’s anti-degradation law even though it found that the state had not established that EPA had ever made such a waiver. To eliminate future confusion on the mechanics of section 9621(f)(2)(B), we have methodically set forth in the text of the opinion what we believe is the correct procedure involved when a state intervenes under that provision.
.See discussion supra at 1434 & n. 25.
.As alluded to by its own regulations, the fact that (1) Michigan’s anti-degradation law on its face requires no numerical standard of cleanup and (2) the state has not submitted to EPA any evidence determining the local background groundwater quality at the Rose Site, suggests that EPA has considerable flexibility in deciding how to comply with that ARAR.
.We note the difference between the argument that EPA must determine prior to implementation that soil flushing will attain the state ARAR’s level of cleanup — a determination which is not necessary here as we find that that ARAR was waived with regard to soil flushing— and amici’s contention that soil flushing when implemented will violate the ARAR (irrespective of whether it will eventually satisfy the requirement) because contaminants will be discharged into the groundwater.
.The potential danger of undetected leaching of contaminants outside the immediate area to be cleaned is discussed at p. 1430, supra.
. Defendants contend that this issue and also the one presented in the next subsection, i.e. whether the decree violates section 104(c)(3), were not timely preserved below. Our review of the record, however, does not enable us to either confirm or deny defendants’ contention; in any event, we will reach the merits of these issues based on our duty to independently determine whether the decree is fair, adequate and reasonable.
. Most industries seek agreements which impose a definable cap on their potential liability. Uncertain potential liability seriously frustrates corporate planning and needed bank financing.
. Under 42 U.S.C. § 9607, Michigan may recover all of its costs or damages as a result of actions taken in response to the pollution at Rose Township, so state law remedies providing for cost recovery to the state are surplusage.
. See Starfield, supra, 20 ELR at 10243 (where a state-proposed remedy "would conflict or be inconsistent with the EPA-selected remedy, it would not be appropriate to allow the state to proceed without EPA approval. Indeed, to do so would be tantamount to giving the states a veto power over EPA remedial action deci-stons”).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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WELLFORD, Senior Circuit Judge,
concurring:
I am in accord with Judge Engel’s thorough statutory review in part I, which sets out the background of the law relating to hazardous waste sites and the particular site in this case. Judge Engel has also carefully recited the pertinent facts of this case in part II, including background data concerning the proposed consent decree which is at issue. He has also described the complex issues before us in this appeal (part III), and has, in my view, correctly described the standard of review problem we encounter in assessing each of the issues on appeal as to the consent decree and the administrative record (part IV). I concur in all respects with parts I through IVA, inclusive.
I disagree with the majority view expressed in part IVB because I am inclined to find that the district court did not err when it refused to consider Robert A. Hayes’ affidavit which was offered by the State of Michigan. I believe the district court followed our admonition in Norwich Eaton Pharmaceuticals, Inc. v. Bowen, 808 F.2d 486 (6th Cir.), cert. denied, 484 U.S. 816, 108 S.Ct. 68, 98 L.Ed.2d 32 (1987):
The District Court was required to review the agency’s decision that Buprenex was approved in 1981 to determine whether that decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as specified in 5 U.S.C. § 706(2)(A). The scope of review under this section is narrow: “In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973).
As this Court recently noted in Upjohn Mfg. Co. v. Schweiker, 681 F.2d 480 (6th Cir.1982), de novo review of agency action is the exception rather than the rule, unless required by statute. “ \D ]e novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions.’ ” Id. at 483 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)).
Thus, consideration of evidence outside the administrative record is proper under some circumstances, e.g., “for background information ... or for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision.” Id. (citations omitted).
Moreover, the District Court stated in its Order that it based is decision upon its “review of the administrative record, the memoranda and the arguments by counsel.” Joint Appendix at 263. The Order does not reveal that the District Court used any evidence outside the administrative record in reaching its decision. Thus, we find that the District Court did not conduct a trial de novo and that the Government’s contention that the District Court based its decision on information outside the administrative record is without merit.
Norwich Eaton, 808 F.2d at 489.
A court should admit affidavits that are not part of the record only for the limited purposes of providing “background information,” considering whether the agency fully explained “its course of conduct” or determining “whether the agency considered all relevant factors.” In Norwich Eaton, we affirmed the district court’s decision because it was not based on outside-the-record information. I, therefore, conclude that Norwich Eaton does not mandate consideration of the Hayes’ affidavit.
I agree with the majority that judges are “ill-equipped to engage in de novo review” of the highly technical and complex matters involved in this proceeding. I further agree that “[i]f in the court’s admittedly unscientific judgment, some new evidence which was unavailable to the agency seems so significant that the agency’s original action now seems questionable, the reviewing court should remand the consent decree so that EPA’s experts can consider the new information.” (Emphasis added). To be considered for the limited purposes indicated, the proponent must prove that the additional evidence is new and the kind of evidence which was unavailable at the time of the agency’s hearings and consideration of the consent decree.
In this case, during the course of monitoring compliance with the decree, there may be opportunities to present new evidence to the EPA for reconsideration of the efficacy of the steps taken to address this waste problem. If, as determined by the majority, the Hayes affidavit were to be considered for this limited purpose, I would agree with the majority’s analysis, although its consideration is not mandated, in my view.
I further concur in the conclusion in part V that the consent decree is neither arbitrary nor capricious. In sum, I agree that EPA’s responses “demonstrate[ ] the sufficiency of EPA’s reconsideration of soil flushing as a potentially viable remedy,” and that the consent decree presents a “rational” approach.
I disagree with the conclusion reached in part VIIA that Michigan’s anti-degradation law is an ARAR under 42 U.S.C. § 9621(d)(2)(A). To be legally enforceable and avoid a vagueness challenge, state ARARs, must be specific and definite so “that ordinary people can understand what conduct is prohibited.” Kolendar v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); see also Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The majority concedes that Michigan’s current implementing regulations to its WRCA fail to provide “specific requirements” since they merely forbid “ ‘degradations’ of the ‘local background groundwater quality.’ ” Michigan’s policies with regard to soil flushing are inconsistent, and I would find these laws to be unenforceable, vague and insufficient to be classified as ARARs. See Kelley v. United States, 618 F.Supp. 1103 (W.D.Mich.1985).
I agree with the rationale and result reached in part VIIA-1 and 2 that Michigan’s laws, which are more stringent than federal standards, were properly promulgated despite my conclusion that they are not ARARs. I disagree, however, with the majority’s conclusion that Michigan’s anti-degradation law, under CERCLA or SARA, is legally applicable as an ARAR to the Rose Site or relevant and appropriate to the remedial action selected in the consent decree.
In sum, I am in agreement with the conclusion reached by the majority. My disagreement touches only a few steps or procedures in arriving at that conclusion.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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EN BANC OPINION
LYNCH, Circuit Judge.
The en banc court has convened to consider a series of issues concerning the relative powers of the federal Secretary of the Interior, the State of Rhode Island, and the Narragansett Tribe over a parcel of land taken into trust and designated for Indian housing. The case is in many ways a proxy for the State’s larger concerns about its sovereignty vis-a-vis federal and tribal control over lands within the state.
In 1998, the Secretary of the Interior agreed to take into unreserved trust for the Tribe’s benefit a 31- or 32-acre parcel in Charlestown, Rhode Island (the Parcel). Then-Secretary Gale Norton cited her powers under section 5 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. § 465. The Tribe had purchased the Parcel in 1991.
Under the Indian Commerce Clause of the Constitution, U.S. Const, art. I, § 8, cl. 3, Congress has plenary power to legislate on the subject of Indian tribes. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989). As a result, Congress may preempt the operation of state law in Indian country. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983). Under section 5 of the IRA, Congress has authorized the Secretary “in his discretion” to acquire and take into trust for Indian tribes “any interest in lands ... within or without existing reservations ... for the purpose of providing land for Indians.” 25 U.S.C. § 465. The Secretary may take land into trust for these purposes, as was done here, without the consent of the State.
The Secretary’s acquisition of land into trust for Indians results in the land becoming “Indian country.” 18 U.S.C. § 1151. Generally speaking, primary jurisdiction over land that is Indian country rests with the federal government and the Indian tribe inhabiting it, not with the state. Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 527 n. 1, 118 S.Ct. 948, 140 L.Ed.2d 30 (1988). To be more precise,
“[w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” When, however, state interests outside the reservation are implicated, States [sometimes] may regulate the activities even of tribe members on tribal land....
Nevada v. Hicks, 533 U.S. 353, 362, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (citation omitted) (quoting White Mountain Apache Tribe v. Bracket, 448 U.S. 136, 144, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980)).
Recognizing a conflict between state jurisdiction and the federal interest in encouraging tribal self-governance, the Secretary’s regulations under the IRA provide that “none of the laws ... of any State ... limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property ... shall be applicable” to land held in trust for a tribe by the United States. 25 C.F.R. § 1.4(a). This provision is subject to the Secretary’s power in specific cases or areas to make applicable those local laws determined to be in the best interest of the Indian owners “in achieving the highest and best use of [the] property.” Id. § 1.4(b).
Concerned over the loss of sovereignty over the Parcel and what it may portend for the future, the State, ‘its Governor, and the town of Charlestown (collectively, the State), sued the Secretary of the Interior, now Dirk Kempthorne, and the Regional Director of the Bureau of Indian Affairs (BIA), Franklin Keel, in federal court. See Carcieri v. Norton, 290 F.Supp.2d 167 (D.R.I.2003). Having exhausted administrative remedies, the State brought suit under the Administrative Procedure Act, 5 U.S.C. § 702, seeking review of the Secretary’s decision to take the Parcel into trust. Id. at 169, 172.
The State’s case asserts three major theories. First, the State argues that the IRA does not authorize the Secretary to take land into trust for any tribe, including the Narragansetts, that first received federal recognition after June 18, 1934, the effective date of the IRA. Second, the State argues that the 1978 Rhode Island Indian Claims Settlement Act (the Settlement Act), 25 U.S.C. §§ 1701-1716, restricts the Secretary’s authority to place the Parcel into trust pursuant to the IRA. Third, the State argues that the Constitution prohibits this exercise of authority by the Secretary.
As to the IRA, the State argues that the Narragansetts do not meet the definition of “Indian” contained in 25 U.S.C. § 479. The pertinent definition recognizes, inter alia, “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,” 25 U.S.C. § 479 (emphasis added). The State reads “are members ... now under Federal jurisdiction” to plainly and literally mean the 1934 effective date of the IRA. The State thus contends that the Secretary has no authority under the IRA to take land into trust for any tribe that was not federally recognized in 1934. As a result, the State argues, the Secretary is precluded entirely from placing the Parcel into trust for the Narragansetts, who were not recognized as a tribe until 1983.
Next, the State argues that the terms of the Settlement Act preclude the Secretary from placing the Parcel into trust because the Settlement Act is a later specific act of Congress that must be read to have explicitly and implicitly cabined the Tribe’s and the Secretary’s power as to the Parcel. The State argues that the Settlement Act bars the imposition of any trust. The State’s fallback position is that any trust must be restricted by the terms of the Settlement Act so that it is clear that state and local law apply to the Parcel, just as they do to the settlement lands.
Finally, the State asserts various constitutional theories, with the common underpinning that the placing of thé Parcel into trust violates the State’s sovereignty. The State argues that the Indian Commerce Clause does not authorize the Secretary’s exercise of power and that the exercise violates the Tenth Amendment, as well as the Enclave and Admissions Clauses of the Constitution. The State also argues that section 5 of the IRA, 25 U.S.C. § 465, constitutes an unconstitutional delegation of legislative authority.
We hold that the language of 25 U.S.C. § 479 does not plainly refer to the 1934 enactment date of the IRA. We find that the text is sufficiently ambiguous in its use of the term “now” that the Secretary has, under the Chevron doctrine, authority to construe the Act. We reject the State’s claim that we do not owe deference to the Secretary’s interpretation because he has inconsistently interpreted or applied section 479. The State’s evidence> of inconsistency is mixed and is not persuasive. The Secretary’s position has not been inconsistent, much less arbitrary. The Secretary’s interpretation is rational and not inconsistent with the statutory language or legislative history, and must be honored.
Likewise, the Settlement Act neither explicitly bars by its terms the Secretary’s actions, norimplicitly repeals or constrains the Secretary’s authority under the IRA to place land into trust for the Tribe. While the State apparently failed to anticipate this particular problem at the time of the settlement, the Settlement Act did specifically contemplate the event of federal recognition of the Tribe and did not restrict the Secretary’s power, should the Tribe be recognized, to take into trust land outside of the settlement lands. We are not free to reform the Act. If aggrieved, the State must turn to Congress.
The State’s arguments based on allocations of power under the U.S. Constitution also do not prevail. They do, however, underscore the seriousness of the State’s concern about the abrogation of state sovereignty at stake here.
I.
In order to understand the nature of the controversy and the consequences of this decision, a brief recounting of the history of relations between the State and the Tribe is required. Further background can be found in the district court’s opinion, Carcieri, 290 F.Supp.2d 167, as well as the opinions previously issued in the decades-long disputes between the State and the Tribe, see Narragansett Indian Tribe v. Rhode Island (Narragansett III), 449 F.3d 16 (1st Cir.2006) (en banc); Narragansett Indian Tribe v. Narragansett Elec. Co. (Narragansett II), 89 F.3d 908 (1st Cir.1996); Rhode Island v. Narragansett Indian Tribe (Narragansett I), 19 F.3d 685 (1st Cir.1994).
In 1880, the State acquired the majority of the Tribe’s lands. In 1934, the Tribe organized as a state-chartered corporation. In 1975, the Tribe sued to recover its lands, arguing that the State had acquired the lands in violation of the Indian Nonin-tercourse Act, 25 U.S.C. § 177. The Tribe claimed that this violation rendered void the transfer of title to the lands.
This cloud on title prompted the State to enter into settlement negotiations with the Tribe, which led in 1978 to an agreement embodied in a Joint Memorandum of Understanding (JMOU). Under the JMOU, the Tribe would receive 1800 acres of “settlement lands,” half of which were provided by the State and half of which were purchased with federal funds. The State agreed to create an Indian-controlled corporation to hold the settlement lands in trust for the Tribe, to exempt the settlement lands from local taxation, and to help secure the federal legislation necessary to implement the agreement. In exchange, the Tribe abandoned its claims of aboriginal title and its claims to lands in the state other than the settlement lands.
In turn, Congress approved and codified the agreement in the Settlement Act. The Settlement Act provided that “the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.” Id. § 1708(a).
Five years later, in 1983, the Secretary granted the Tribe official federal recognition. See Final Determination for Federal Acknowledgment of- Narragansett Indian Tribe of Rhode Island, 48 Fed.Reg. 6177 (Feb. 10, 1983). Following that recognition, in 1985, Rhode Island amended the pertinent state statute to permit the conveyance of the settlement lands directly to the Tribe, explicitly preserving the State’s jurisdiction over the settlement lands, consistent with the Settlement Act, 25 U.S.C. § 1708(a). See R.I. Gen. Laws § 37-18-13(b). The holding company conveyed the settlement lands to the Tribe, and three years later, the Tribe conveyed the settlement lands to the BIA as trustee. The trust deed confirmed the application of state law to the settlement lands, as provided in 25 U.S.C. § 1708(a). The BIA continues to hold the settlement lands in trust for thé Tribe, subject to this congres-sionally-enacted restriction that state law applies. See Narragansett I, 19 F.3d at 689, 695 n. 8. Significantly, in our earlier en banc decision in Narragansett III, we held that the language of section 1708(a) trumped any residual tribal sovereignty over the settlement lands, under which the Tribe had refused to comply with certain state laws. See 449 F.3d at 26.
Then, in 1991, the tribal housing authority purchased the Parcel in fee simple, acquiring title through purchase from a private developer. The Parcel was part of the Tribe’s aboriginal lands claimed in the 1976 lawsuit. Under the Settlement Act, the Tribe had thus relinquished aboriginal title to the Parcel, but the Parcel is not part of the 1800 acres of settlement lands. It is adjacent to the settlement lands, across a town road. In 1992, the Housing Authority transferred the Parcel to the Tribe with a deed restriction that the Parcel be placed in trust with the BIA for the purpose of providing housing.
A dispute soon arose over whether development of the Parcel had to comply with local law. The Tribe began construction on the planned housing project without obtaining a building permit from the Town or the State’s approval of the individual sewage disposal systems. The Tribe essentially took the position that once it had purchased the Parcel, the land had become tribal land, and the Tribe’s inherent sovereignty meant that the Parcel was exempt from local law. The State disagreed and filed suit in federal court to enjoin the Tribe. See Narragansett Indian Tribe v. Narragansett Elec. Co., 878 F.Supp. 349 (D.R.I.1995). Ultimately, the Tribe lost that litigation. See Narragansett II, 89 F.3d at 922.
The Tribe had sought to solve the issue of the applicability of state law to the Parcel by applying to the Secretary in 1993 to have the Parcel taken into trust under section 5 of the IRA. The Secretary’s determination of whether to do so was stayed pending the resolution of the federal court litigation. After the litigation was resolved against the Tribe by this court in 1996, id. at 922, the Tribe submitted a second application to the Secretary.
The Tribe filed this updated application with the Secretary in July 1997. In determining whether to take lands into trust, the Secretary follows a regulatory process set forth at 25 C.F.R. part 151, which requires consideration of several factors. If, as here, the land is off reservation, additional criteria apply. See 25 C.F.R. § 151.11. Generally, the farther from a reservation the land is, the greater the scrutiny the Secretary gives to the justification of anticipated benefits from the acquisition. See id. § 151.11(e); see also M.J. Sheppard, Taking Indian Land into Trust, 44 S.D. L.Rev. 681, 686 (1999).
On March 6, 1998, the BIA notified the State of the Secretary’s intent to take the Parcel into trust for the Tribe. The State appealed the decision to the Interior Board of Indian Appeals (IBIA). The State argued, inter alia, that the Settlement Act prohibited this action by the Secretary, and that in taking the land into trust without the State’s consent, the Secretary had acted unconstitutionally. The IBIA affirmed the BIA’s determination on June 29, 2000. Town of Charlestown v. E. Area Dir., Bureau of Indian Affairs, 35 I.B.I.A. 93, 106 (2000). It noted it had no jurisdiction over the claims of unconstitutionality. Id. at 97.
The State then instituted this action in federal court. The district court, in a comprehensive decision, rejected the State’s claims. See Carcieri, 290 F.Supp.2d 167. A divided panel of this court affirmed. Carcieri v. Norton, 423 F.3d 45 (1st Cir.2005). The en banc court granted rehearing and withdrew the panel opinion.
As described above and recounted in our en banc decision in Narragansett III, 449 F.3d at 18-21, for several decades the relationship between the Tribe and the State has been fraught with tension.
The State’s short-term concerns in this case have to do with whether the particular project will conform with state and local law. The State also has concerns that once land is taken into trust, there will be very few mechanisms, other than negotiation with the Tribe or appeal to the Secretary’s authority under 25 C.F.R. § 1.4(b), by which the State may secure compliance with state and local laws. The State fears that the Tribe will convert or otherwise use the Parcel, or any future parcels that might be acquired and put into trust, for income-producing activities in which it normally would not be permitted to engage under state law.
There has been federal litigation between state officials and the Tribe and its members over such activities. In 2003, the Tribe, seeking revenue, established on the settlement lands an Indian Smoke Shop that sold cigarettes without purchasing state cigarette stamps or collecting sales taxes then paid to the State, as required by state law. The State Police raided the smoke shop and initiated criminal prosecutions against tribe members. The Tribe sought a declaratory judgment in federal court asserting that its control over the smoke shop was an inherent function of tribal sovereignty that survived the Settlement Act, despite the explicit language in section 1708(a). We rejected that claim en banc. Narragansett III, 449 F.3d at 30-31.
II.
A. Standard of Review
Technically, the claims at issue here are reviewed through the lens of an APA appeal under 5 U.S.C. § 706. Our review of such an appeal is de novo as to the district court’s conclusions. See Harvey v. Veneman, 396 F.3d 28, 33 (1st Cir.2005). The underlying issues remaining in the case are statutory and constitutional. Statutory issues are reviewed de novo by the courts, but subject to established principles of deference to the administering agency. Id. Constitutional claims are reviewed de novo. See Cousins v. Sec’y of Transp., 880 F.2d 603, 610 (1st Cir.1989) (en banc).
B. The 1931 Indian Reorganization Act
The State argues that the Secretary lacks authority to place the Parcel into trust under 25 U.S.C. § 465 since, under the definition of “Indian” in 25 U.S.C. § 479, that authority extends only to tribes that were both federally “recognized” and “under [Qederal jurisdiction” on June 18, 1934, the effective date of the IRA.
The State presents a series of cascading arguments. First, the State argues that the plain language of section 479 is clear, and that under that plain language, the Tribe’s status is measured as of 1934. The State further argues that its interpretation of the statute is the only one consistent with the purposes and legislative history of the Act. Thus, the State argues that because the statute is unambiguous, deference to the Secretary is unwarranted. In any event, the State argues that even if deference might have been warranted, the Secretary’s current interpretation is not entitled to deference because it contradicts the Secretary’s practice in the more than seventy years since the passage of the IRA.
1. Chevron Analysis
The Secretary has offered an interpretation of the IRA that permits trust acquisitions for tribes recognized and under federal jurisdiction at the time the request for a trust acquisition is made. A court reviewing an agency’s interpretation of a statute that it administers engages in a two-step analysis. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We must first consider “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. If congressional intent is clear, we “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. “[I]f the statute is silent or ambiguous with respect to the specific issue,” however, we must consider “whether the agency’s [interpretation] is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.
(a) Whether Section 179 Is Ambiguous
We begin our analysis with the statutory text. Rucker v. Lee Holding Co., 471 F.3d 6, 9 (1st Cir.2006). The language at issue is that contained in 25 U.S.C. § 479, which provides:
The term “Indian” as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.
One might have an initial instinct to read the word “now” in the statute as the State does, to mean the date of enactment of the statute, June 18, 1934. Congress certainly has used the word “now” in this way. See, e.g., Montana v. Kennedy, 366 U.S. 308, 312, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961) (interpreting the word “now” in a reenactment of an earlier act to refer to the initial date of enactment).
Any such instinct quickly disappears upon further examination, however. This is not a case that can be resolved by looking to the plain meaning of the term “now” standing by itself. “Now” means “at the present time,” but there is ambiguity as to whether to view the term “now” as operating at the moment Congress enacted it or at the moment the Secretary invokes it. Indeed, Congress sometimes uses the word “now” to refer to a time other than the moment of enactment. See Difford v. Sec’y of Health & Human Servs., 910 F.2d 1316, 1320 (6th Cir.1990) (interpreting the word “now” in a disability-benefits termination provision to refer to the time of the hearing); see also Pierce v. Pierce, 287 N.W.2d 879, 882 (Iowa 1980) (noting that the phrase “now havfing] jurisdiction” in the Uniform Child Custody Jurisdiction Act “refers to the time of the filing of the petition”); cf. Williams v. Ragland, 567 So.2d 63, 65-66 (La.1990) (declining to interpret “now serving” in a mandatory judicial retirement provision to refer to the date of enactment). There also are other layers of ambiguity.
Given that the word “now” does not itself have a clear meaning, we must look to context. Here, the context is equivocal. On the one hand, the State points' to 25 U.S.C. § 472, another provision of the IRA, which refers to “positions maintained, now or hereafter, by the Indian Office.” The State argues that this use of “now” unambiguously refers to the date of enactment and that had Congress wanted to include later-recognized tribes in section 479, it would have similarly added the words “or hereafter.”
On the other hand, the Secretary points out that section 479 itself specifies the date of “June 1, 1934” as the relevant date for determining eligibility based on “residing within the present boundaries of any Indian reservation.” The Secretary thus counters that had Congress wanted to require recognition of a tribe on the date of enactment, it would have specified that date, rather than using the term “now.” See also 25 U.S.C. § 478 (requiring elections to be held “within one year after June 18, 1934”). Hence, “now” might mean “now or hereafter” or it might mean “June 18, 1934”; either would be consistent with some other part of the statute.
Policy does not provide an obvious answer either: each side has a plausible explanation that policy considerations favor its interpretation. ' The State argues that the principal, perhaps exclusive, concern of the 1934 statute was with remedying the perceived ills of the prior practice of allotment. See Kahawaiolaa v. Norton, 222 F.Supp.2d 1213, 1220 n. 10 (D.Haw.2002). Because the IRA ended allotments in 1934, see 25 U.S.C. § 461, they would not have affected later-recognized tribes, and hence there would have been no reason to include such tribes within the ambit of the statute.
The Secretary takes the view that the Act was intended not only to remedy past wrongs, but also to set a template for the future that would encourage the strength and stability of tribal communities. Based on this view, it would make no sense to distinguish among tribes based on the happenstance of their federal recognition status in 1934. The Secretary’s view is buttressed by the fact that the Act contains a number of provisions that have,nothing to do with land consolidation. See id. § 472 (Indian employment preference); id. § 476 (tribal organization).
The State reads United States v. John, 437 U.S. 634, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978), to indicate that the Supreme Court had an initial interpretation of the Act that coincides with the State’s interpretation. It is unclear if the Court had any such interpretation, and in any event, we find that John is not controlling here. In John, the Fifth Circuit had found that the Mississippi Choctaws were not eligible for benefits under the IRA because the tribe had not been recognized in 1934. United States v. John, 560 F.2d 1202, 1212 (5th Cir.1977); see also United States v. Miss. Tax Comm’n, 505 F.2d 633, 642 (5th Cir.1974). The Supreme Court reversed, relying on a different clause in the statute and finding the tribe eligible for benefits under the IRA, but on the basis that its members were “persons of one-half or more Indian blood.” 437 U.S. at 650, 98 S.Ct. 2541.
Along the way, the Supreme Court stated:
The 1934 Act defined “Indians” not only as “all persons of Indian descent who are members of any recognized [in 1934] tribe now under Federal jurisdiction,” and their descendants who then were residing on any Indian reservation, but also as “all other persons of one-half or more Indian blood.”
Id. (alteration in original) (quoting 25 U.S.C. § 479 (1976)). The bracketed addition may be read to support the State’s position, but the opinion contains no analysis on this point, and the Court rested its holding on an entirely separate provision of the Act, one not at issue here. We are mindful that the Supreme Court’s musings may warrant our attention. See Rossiter v. Potter, 357 F.3d 26, 31 n. 3 (1st Cir.2004); but see P. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L.Rev. 1249 (2006). In this case, however, given John’s complete lack of analysis of the provision that concerns us, the relevant language seems to us to fall short even of being dicta.
Having found both text and context to be ambiguous, we turn to legislative history. Despite the State’s arguments to the contrary, that history also does not clearly resolve the issue. Indeed, it suggests a reading of the phrase “now under federal jurisdiction” different from that offered by any of the parties, and is thus another source of ambiguity.
The congressional record establishes that the phrase “now under federal jurisdiction” was specifically added to the statutory definition of “Indian,” a term defined separately from “tribe.” See 25 U.S.C. § 479. The phrase was suggested by then-Commissioner of Indian Affairs John Collier in response to the concern that not all self-identified Indians deserved to benefit from the Act:
The Chairman. But the thing about it is this, Senator; I think you have to sooner or later eliminate those Indians who are at the present time — as I said the other day, you have a tribe of Indians here, for instance in northern California, several so-called “tribes” there. They are no more Indians than you or I, perhaps. I mean they are white people essentially. And yet they are under the supervision of the Government of the United States, and there is no reason for it at all, in my judgment. Their lands ought to be turned over to them in severalty and divided up and let them go ahead and operate their own property in their own way.
Senator O’Mahoney. If I may suggest, that could be handled by some separate provision excluding from the benefits of the act certain types, but must have a general definition.
Commissioner Collier. Would this not meet your thought, Senator: After the words “recognized Indian tribe” in line 1 insert “now under Federal jurisdiction”? That would limit the act to the Indians now under Federal jurisdiction, except that other Indians of more than one-half Indian blood would get help.
To Grant to Indians Living Under Federal Tutelage the Freedom To Organize for Purposes of Local Self-Government and Economic Enterprise: Hearing on S.2755 and S.3645 Before the S. Comm. on Indian Affairs, 73d Cong. 266 (1934).
Commissioner Collier offered the phrase as a limitation, but it is not clear whether it was intended as a temporal limitation. If the committee was concerned about the bona fides of an individual’s status as an Indian and wanted to use the fact of federal jurisdiction to measure those bona fides, then there would have been no reason to distinguish between those under federal jurisdiction in 1934 and those who later came under federal jurisdiction. In fact, the colloquy quoted above suggests that the committee sought to exclude some Indians already “under the supervision of the Government of the United States.” If the purpose was to exclude those who might later be dropped from federal jurisdiction, it would make more sense to measure status as of the date benefits were sought, not as of the date of enactment of the statute.
Indeed, the colloquy and the remainder of the hearing suggest that the committee was focused on the issue of individual Indians who received benefits from the federal government on the basis of a limited heritage and without acting as a part of a tribal community. Earlier in the session, the chairman had raised the case of a “former Vice President of the United States,” who was apparently receiving Indian benefits, asking, “Why should the Government of the United States be managing the property of a lot of Indians who are practically white and hold office and do everything else, but in order to evade taxes or in order to do something else they come in under the Government supervision and control?” Id. at 264.
Thus, although none of the parties have raised this, it may well be that the phrase “now under federal jurisdiction” was intended to modify not “recognized Indian tribe,” but rather “all persons of Indian descent.” So interpreted, the purpose of the phrase might well have been to grandfather in those individuals already receiving federal benefits, but' to otherwise insist that in the future, only individuals with at least one-half Indian blood would qualify. In that case, the limitation may well have been a temporal one, but the limitation, temporal or not, may have been intended to affect only the Secretary’s authority to act for the benefit of an “individual Indian,” not an “Indian tribe.” See 25 U.S.C. § 465 (“Title to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired .... ” (emphasis added)). After all, while Congress may have been concerned about misdirecting resources to individuals who were only Indians in name, the same concern would not apply to federally recognized tribes, regardless of the date of federal recognition. In any event, this piece of legislative history amply supports the view that the statute is at least ambiguous and leaves room for administrative interpretation.
The other relevant piece of legislative history, heavily relied upon by the State, is the statement of Representative Edgar Howard, a cosponsor of the IRA:
For purposes of this act, [the definitional section] defines the persons who shall be classed as Indian. In essence, it recognizes the status quo of the present reservation Indians and further includes all other persons of one-fourth Indian blood. The latter provision is intended to prevent persons of less than one-fourth Indian blood who are already enrolled members of a tribe or descendants of such members living on a reservation from claiming financial and other benefits of the act. Obviously the line must be drawn somewhere ...
Kahawaiolaa, 222 F.Supp.2d at 1220 n. 10 (emphasis omitted) (quoting Congressional Debate on Wheeler-Howard Bill (1934) in III The American Indian and the United States (1973)) (internal quotation marks omitted).
The State interprets the reference to “status quo” as supporting its view that federal recognition of tribes was essentially frozen for purposes of the IRA in 1934. This seems to be a misinterpretation of the quote, however. Representative Howard did not say that the Act would “maintain” or “preserve” the status quo; rather he stated that the Act would “recognize” it. Moreover, the quote refers not to Indian tribes, but to “reservation Indians.” Thus, in context, this sentence is more likely a reference to that portion of the definition of an Indian, not at issue here, that covers “all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation.” 25 U.S.C. § 479. This provision, with its explicit reference to 1934, covered those people of Indian descent then living on a reservation, without regard to whether they might independently qualify as Indians under the Act. In that sense, the definition accepted and “recognized” the status quo of the reservations.
Thus, we find from the text, context, and legislative history that section 479 is at least ambiguous as to whether the phrase “now under federal jurisdiction” disqualifies tribes that were federally recognized after 1934, such as the Narragansett Tribe, from the benefits of the IRA.
(b) Whether the Secretary’s Interpretation Is Permissible
As we have found the meaning of section 479 to be ambiguous, we must consider whether the Secretary’s interpretation is “permissible.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. An interpretation is permissible if it is “rational and consistent with the statute.” NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). The Secretary’s construction meets this test. As discussed above, it is reasonable and is consistent with the language and legislative history of the IRA. It also is consistent with the policy of the IRA, which, as we have indicated, may permissibly be viewed not only as intending to reverse the government’s allotment policy, but also as affirmatively conferring benefits on Indians, including Indian employment preferences and a statutory right to organize and adopt governing documents.
We therefore reject the State’s argument that the text and purposes of the IRA prohibit the Secretary’s interpretation of section 479. Rather, we find that the Secretary’s construction of section 479 as allowing trust acquisitions for tribes that are recognized and under federal jurisdiction at the time of the trust application is entitled to deference.
2. Alleged Inconsistency of the Secretary’s Interpretation
The State makes a separate argument on which it heavily relies. It argues that the Secretary’s interpretation of section 479 to allow trust acquisitions for tribes not federally recognized in 1934 represents a change in position as to the eligibility of tribes for IRA benefits, and that this interpretation therefore is not entitled to deference. The State relies particularly on historical practice, and says that the Secretary has never, or at least has hardly ever, identified as IRA-eligible a tribal entity that was not federally recognized in 1934 and does not meet the half-blood test. The evidence is limited with respect to whether the Secretary’s interpretation of section 479 of the IRA has been consistent over the past seventy-three years.
The consistency of the Secretary’s construction is supported, though not directly, by a regulation promulgated by the Secretary in 1980. The regulation, found at 25 C.F.R. § 151.2, sets forth definitions that pertain to the regulations governing trust acquisitions. 25 C.F.R. § 151.2(b) defines a tribe that may be eligible for a trust acquisition as “any Indian tribe, band, nation, pueblo, community, ranchería, colony, or other group of Indians ... which is recognized by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs.” The regulation does not distinguish between tribes recognized before June 18, 1934 and those recognized thereafter. Rather, it suggests that whether or not a group of Indians is considered a tribe, and therefore may be eligible to have land taken into trust, turns on a tribe’s federal recognition status at the time a trust acquisition is requested.
Moreover, the Secretary’s proffered interpretation of “now” as meaning “today” is consistent with regulations implementing other provisions of the IRA. For example, the regulation implementing 25 U.S.C. § 466, which directs the Secretary to regulate the operation and management of Indian forestry units, states that it applies to “any Indian tribe ... which is recognized as eligible for the special programs and services provided by the United States to Indians because of their- status as Indians.” 25 C.F.R. § 163.1. Similarly, the regulation implementing 25 U.S.C. § 476, which allows eligible Indian tribes to organize and adopt constitutions and bylaws, defines eligibility-in current terms: all Indian entities that have not voted to exclude themselves from the IRA and that are “included, or [are] eligible to be included, among those tribes ... recognized and receiving services from the [BIA]” are eligible to organize under section 476. 25 C.F.R. § 81.1.
As to the Secretary’s trust acquisition practice, it is not seriously disputed that the Secretary has never rejected an application to take land into trust for a federally recognized tribe on the ground that the tribe was not recognized and under federal jurisdiction in 1934. Responding to the State’s allegations about whose trust acquisition applications have been granted, the Secretary and Indian amici have submitted to us lists of tribes that they assert were not federally recognized in 1934 for whom land has since been taken into trust. The State disputes this evidence, arguing that nearly all of the identified tribes either have no trust lands, are not “newly recognized” because they were under federal jurisdiction in 1934, or have obtained legislation from Congress specifically permitting trust acquisitions on their behalf.
The State’s evidence of inconsistent practice is not persuasive. For example, although the State seems to concede that the Miccosukee Tribe was not recognized in 1934, it argues that the later trust acquisition for that tribe identified by Indian amici was made pursuant to specific statutory authorization, not section 465. But the statute to which the State points us, 25 U.S.C. §§ 1741-1750e, does not, itself authorize acquisition of the parcel identified by Indian amici. Rather, it authorizes acquisition of a different parcel. Indeed, in taking the parcel identified by Indian amici into trust, the Secretary explicitly relied on his authority under section 465.
Turning to a different distinction, the State argues that eight of the tribes identified by Indian amici were recognized and under federal jurisdiction in 1934 because they previously had signed treaties with the United States. It is not self-evident that simply because a tribe had signed a treaty with the U.S. government it necessarily was recognized and under federal jurisdiction in 1934; recognition as intended in section 479 requires an ongoing government-to-government relationship between a tribe and the United States. See Cohen’s Handbook of Federal Indian Law § 3.02(3), at 138-40 (N.J. Newton et al., eds. 2005).
Whether or not a treaty executed before 1934 has significance, however, the evidence is still that the Secretary has taken land into trust for tribes that did not appear to be federally recognized in 1934. We note two examples. The Secretary has taken land into trust for the Sault Ste. Marie Band of Chippewa Indians despite the Secretary’s position that, regardless of prior treaties, the Band was not federally recognized in 1934. The Sault Ste. Marie Band is a successor to some of the Chippewa tribes that had signed treaties with the United States between 1785 and 1855. In addition, in 1855 the Band had signed two treaties with the United States. Despite those treaties, however, by 1917 the Department of the Interior did not recognize the Band as an entity with which it had government-to-government relations. Opinion of Nat’l Indian Gaming Comm’n, The St. Ignace Parcel at 7 (July 31, 2006); see also City of Sault Ste. Marie v. Andrus, 532 F.Supp. 157, 161 (D.D.C.1980) (indicating that a period of non-recognition existed by stating that “although the question of whether some groups qualified as Indian tribes for purposes of IRA benefits might have been unclear in 1934, that fact does not preclude the Secretary from subsequently determining that a given tribe deserved recognition in 1934”). The State rejoins that the Department of the Interior cannot abrogate an Indian treaty. But the validity of the Department’s treatment of the Sault Ste. Marie Band’s status under the treaties is not ■ the issue before us. What is important is the Department’s position that the Band was not recognized and under federal jurisdiction in 1934. Id. at 16. Nevertheless, after 1934, the Secretary has invoked his section 465 authority to take land into trust for the Band.
The Grand Traverse Band of Ottawa and Chippewa Indians provides a similar example. The Secretary has taken land into trust for the Grand Traverse Band, which the Department of the Interior ceased to recognize in 1872. The Grand Traverse Band signed the 1855 Treaty of Detroit with the United States. In 1872, however, the then-Secretary of the Interi- or severed the United States’ relationship with the Band and ceased to treat the Band as a federally recognized tribe. Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Attorney for the W. Dist. of Mich., 369 F.3d 960, 961 (6th Cir.2004); see also Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Attorney for the W. Dist. of Mich., 198 F.Supp.2d 920, 924 (W.D.Mich.2002) (“Between 1872 and 1980, the Band continually sought to regain its status as a federally recognized tribe.”). Yet; the Secretary has invoked his authority under section 465 to take twenty-one parcels of land into trust for the Band.
The State also concedes that the Secretary appears to have taken land into trust for two tribes, the Tunica-Biloxi Indian Tribe and the Narragansetts themselves, that were not under federal jurisdiction in 1934 and for whom Congress has passed no specific act authorizing trust acquisitions. Even if we had no reason to doubt the State’s argument that the Secretary has not historically taken land into trust for tribes not recognized in 1934, however, in at least some cases the Secretary has not looked to the status of the tribe in 1934 or to the specific statutory authority identified by the State in making the determination to take land into trust. In Baker v. Muskogee Area Dir., 19 I.B.I.A. 164 (1991), for example, the IBIA, in concluding that particular members of the Cherokee Nation of Oklahoma were eligible to have land taken into trust, did not rely on the 1936 Oklahoma Indian Welfare Act, 25 U.S.C. §§ 501-570, which authorized the Secretary to take land into trust for Indians in Oklahoma. Rather, the IBIA stated that the Indians “c[a]me within the IRA definition because they are members of a recognized Indian tribe under Federal jurisdiction.” 19 I.B.I.A. at 179. The Secretary thus seems to have intended to exercise his section 465 authority to take land into trust on the basis of current federal recognition.
The State has not met its burden of showing inconsistent interpretation by the Secretary. Moreover, even if the State had shown that the Secretary has changed his interpretation of section 479 over time, that would not necessarily resolve the matter in the State’s favor. The Chevron doctrine permits the Secretary some ability to alter his interpretation over time. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981-82, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (under Chevron, an agency should have flexibility to vary its interpretation of a statute over time). The Secretary has given a reasoned explanation for his interpretation.
We reject the State’s argument that the Secretary has been inconsistent in his interpretation of section 479 and is therefore not entitled to deference.
C. The Settlement Act
The State’s next attack is to argue that the Settlement Act repealed the Secretary’s trust authority as to all lands in Rhode Island. Alternatively, the State argues that the Settlement Act at least curtailed that authority so that any trust must preserve the State’s civil and criminal jurisdiction over the Parcel.
There is simply nothing in the text of the Settlement Act, however, that accomplishes such a repeal or curtailment of the Secretary’s trust authority. 25 U.S.C. § 1708(a) provides:
Except as otherwise provided in this [Act], the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island,
(emphasis added). The State would have us read the Act as if section 1708(a) applied to all lands the Tribe might ever acquire, either directly or as the beneficiary of a trust, but that is not what the section says. By its terms, section 1708(a) applies state law only to the 1800 acres of “settlement lands.” The Parcel is not part of the settlement lands. No other provision of the Settlement Act directly provides for state jurisdiction outside of the settlement lands. No language in the Act applies state law to lands the Tribe might later acquire. More importantly, no language explicitly curtails, or even references, the Secretary’s power under the IRA to take lands into trust and thereby to create Indian country.
The State’s argument thus depends on finding that the Settlement Act implicitly repealed the IRA, at least in part. The framework for evaluating such a claim of implicit repeal was set out by the Supreme Court in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). First, we must look to affirmative manifestations of congressional intent to repeal the prior act, mindful of the “cardinal rule ... that repeals by implication are not favored.” Id. at 549, 94 S.Ct. 2474 (omission in original) (quoting Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936)) (internal quotation marks omitted). “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for [finding] a repeal by implication is [that] the earlier and later statutes are irreconcilable.” Id. at 550, 94 S.Ct. 2474. Such a conflict is not lightly to be found: “[A]bsent a clearly expressed congressional intention to the contrary,” we must “give effect to both [acts] if possible.” Id. at 551, 94 S.Ct. 2474 (quoting United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181 (1939)) (internal quotation marks omitted).
A determination of congressional intent must be rooted in the text of the Act. Nothing in the Act explicitly curtails the Secretary’s trust authority. The State offers two different lines of argument as to why provisions of the Act must be read to restrict that authority. One concerns how the Act affects the Tribe’s rights; the other concerns how the Act affects the Secretary’s authority. The provisions of the Settlement Act cited by the State, however, are most naturally read as merely resolving the claims that had clouded the titles of so much land in Rhode Island and that had led to the settlement embodied in the Act.
As to the provisions affecting the Tribe, the State relies independently on the ex-tinguishment of aboriginal title in 25 U.S.C. §§ 1705(a)(2) and 1712(a)(2) and the further extinguishment in sections 1705(a)(3) and 1712(a)(3) of “all claims ... based upon any interest in or right involving” certain land or natural resources. These provisions, however, follow sections 1705(a)(1) and 1712(a)(1), respectively, which validate “any transfer of land or natural resources” in the United States by the Narragansett Tribe or in Rhode Island by any Indian tribe “as of the date of said transfer.” The provisions then go on to state:
(2) [T]o the extent that any transfer of land or natural resources described in subsection (a) of this section may involve land or natural resources to which [an Indian tribe] had aboriginal title, subsection (a) of this section shall be regarded as an extinguishment of such aboriginal title as of the date of said transfer; and (3) by virtue of the approval of a transfer of land or natural resources effected by this section, or an extinguishment of aboriginal title effected thereby, all claims ... by the [Narragansett Tribe], or any predecessor or successor in interest, member or stockholder thereof, or any other Indian, Indian nation, or tribe of Indians, arising subsequent to the transfer and based upon any interest in or right involving such land or natural resources (including but not limited to claims for trespass damages or claims for use'and occupancy) shall be regarded as extinguished as of the date of the transfer.
25 U.S.C. § 1705(a). Given the references back to the -transfers validated in paragraph (1), the evident purpose of these provisions is to extinguish claims based on the purported invalidity of those transfers.
The State’s arguments that the provisions should be read more broadly are unavailing. First, the State argues that the extinguishment of aboriginal title over land in Rhode Island precludes the later exercise of tribal sovereignty over Rhode Island land acquired by the Secretary in unrestricted trust. The Secretary disputes whether aboriginal title is ever the basis for tribal sovereignty, but in any event, it is clear that such title is not the only basis for tribal sovereignty. This is evident from the Supreme Court’s decision in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005). In Sherrill, the Supreme Court both held that “the Tribe [could not] unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue,” id. at 202-03, 125 S.Ct. 1478, and directed the Oneidas to 25 U.S.C. § 465 as “the proper avenue for [the tribe] to reestablish sovereign authority over [the relevant] territory,” id. at 221, 125 S.Ct. 1478. The State’s protestation that Sherrill did not involve a statutory extinguishment of aboriginal title is beside the point. However aboriginal title or ancient sovereignty was lost, the IRA provides an alternative means of establishing tribal sovereignty over land.
Trust acquisition is not incompatible with the extinguishment of aboriginal title. The Mashantucket Pequot Indian Claims Settlement Act, for example, contains virtually identical language extinguishing aboriginal title “to any land or natural resources the transfer of which was approved and ratified” by the Act. 25 U.S.C. § 1753(b). At the same time, the Act provides that certain land and natural resources “located within the settlement lands shall be held in trust by the United States for the benefit of the Tribe,” id. § 1754(b)(7), and that such lands are “declared to be Indian country,” id. §§ 1752(7), 1755. It is implausible to think that Congress intended the extin-guishment of aboriginal title in the Rhode Island Settlement Act to preclude the taking of land into unrestricted trust, but did not intend for identical language in the Mashantucket Settlement Act to do so.
Alternatively, the State argues that the “all claims” language in paragraph (3) even more broadly forecloses the assertion of tribal sovereignty over non-settlement lands. To hold otherwise, says the State, would render that language surplusage. Paragraphs (2) and (3) are complementary, however, not duplicative. While paragraph (2) extinguishes a form of title, paragraph (3) extinguishes claims. Moreover, paragraph (3) covers claims based on other forms of title, besides aboriginal title, that the Tribe might have held to land in Rhode Island prior to the Settlement Act.
The State’s broad interpretation of paragraph (3) proves too much. The State argues that the paragraph precludes an assertion of tribal sovereignty over any land in Rhode Island. Nothing in the language of the provision, which refers to “any interest in or right involving” such land, distinguishes between claims of sovereignty and traditional property claims. Indeed, the latter are explicitly included. See id. § 1705(a)(3) (“including but not limited to claims for trespass damages or claims for use and occupancy”). It would be highly improbable that Congress intended to prevent the Tribe from asserting any ownership interest over land it purchased outside the settlement lands, and it would be contradictory as to the settlement lands themselves. Thus, there is no support for reading this provision as precluding all future assertions of tribal sovereignty over land in Rhode Island.
Ultimately, this entire line of argument by the State misses the point that what is at issue is not what the Tribe may do in the exercise of its rights, but what the Secretary may do. The displacement of state law arises from the Secretary’s authority and not from the Tribe’s mere purchase of the land. See Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 113-15, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998). In order to prevail on its claim of implied repeal, the State- must show that the Settlement Act repeals the. Secretary’s authority under the IRA.
As to the implied repeal of the Secretary’s power, the State first argues that the Secretary is bound by the extinguishment of the Tribe’s claims because that extinguishment binds the Tribe’s “successor in interest.” 25 U.S.C. § 1705(a)(2), (3). Even if the Secretary is such a “successor in interest,” however, those provisions cannot plausibly be read to repeal the Secretary’s power under the IRA to take land into trust. The Secretary’s power does not turn on the Tribe’s original aboriginal interest in the Parcel, before it purchased the land, nor does it turn on whether the Secretary is a successor in interest to the Tribe.
The State also relies on 25 U.S.C. § 1707(c), which provides:
Upon the discharge of the Secretary’s duties under sections 1704, 1705, 1706, and 1707 of this title, the United States shall have no further duties or liabilities under this subchapter with respect to the Indian Corporation or its successor, the State Corporation, or the settlement lands....
The language of this provision, however, cannot be read to have a preclusive effect or to limit the Secretary’s powers in any way. . The statement that the United States has “no further duties or liabilities under this subchapter” merely delimits the federal government’s obligations in implementing the Settlement Act.
We reject the State’s suggestion that this language parallels the language in the Mashantucket Settlement Act that the Second Circuit found to prohibit certain trust acquisitions. See Connecticut ex rel. Blumenthal v. U.S. Dep’t of Interior, 228 F.3d 82, 88 (2d Cir.2000). The Mashan-tucket Settlement Act uses very different language that provides that “the United States shall have no further trust responsibility with respect to [certain] land and natural resources” outside of the settlement lands. 25 U.S.C. § 1754(b)(8). Disclaiming “trust responsibility” over land is nothing like disclaiming “duties or liabilities under this subchapter.”
There is nothing in the text of the Settlement Act that clearly indicates an intent to repeal the Secretary’s trust acquisition powers under the IRA, or that is fundamentally inconsistent with those powers. This lack of language is not because either _ Congress or the parties failed to anticipate that the Tribe might later become federally recognized and eligible for the benefits of the IRA. The Settlement Act specifically provides for a restraint on alienation of the settlement lands “if the Secretary subsequently acknowledges the existence of the Narragansett Tribe of Indians.” Id. § 1707(c). The underlying JMOU also explicitly recognized that the Tribe would “not receive Federal recognition” in the implementation of the settlement, but would “have the same right to petition for such recognition ... as other groups.” JMOU para. 15.
Had the Act intended to limit the Secretary’s trust authority in case of federal recognition, it could have done so explicitly. It would have been easy to extend the provisions of section 1708(a) preserving state sovereignty to cover all lands in Rhode Island owned by or held in trust for the Tribe. No such language appears in the Act. Similarly, as the IBIA also noted, paragraph 15 of the JMOU would have been “a logical place for the parties to set out any restrictions” on the Secretary’s trust authority following federal recognition of the Tribe. Town of Charlestown, 35 I.B.I.A. at 101. No such restrictions appear. Nor does the Settlement Act contemplate any role for the State to play in the Secretary’s decision whether to take the land into trust. This is in contrast to the Indian Gaming Regulatory Act.
In other settlement acts, Congress has specifically described limits on the Secretary’s trust authority. In the Maine Indian Claims Settlement Act, Congress expressly precluded application of section 465. 25 U.S.C. § 1724(e) (“Except for the provisions of this [Act], the United States shall have no other authority to acquire lands or natural resources in trust for the benefit of Indians or Indian nations, or tribes, or bands of Indians in the State of Maine.”). In the Mashantucket Settlement Act, Congress precluded the trust acquisition of non-settlement lands purchased with settlement funds. See Blumenthal, 228 F.3d at 88. The absence of any restrictions in the Settlement Act supports our finding that no restrictions were intended. See id. at 90.
The State’s fallback position is that the Settlement Act requires that this court order the Secretary to honor the intent of the bargain it believes is embodied in the Act by putting the Parcel into a restricted trust, subject to state laws and jurisdiction. Acknowledging the genuineness of the State’s sense that its bargain has been upset, we find that the relief it seeks is not an appropriate exercise of judicial power.
In the Settlement Act, the State procured at least two clear benefits: (1) the settling of disputed land claims and (2) the application of its civil and criminal laws and jurisdiction to the settlement lands. Beyond that, the State argues that it would never have agreed to displacement of state law as to later acquired parcels if the issue had surfaced during the negotiations. The State argues that the practical consequences of the unrestricted trust leave it in an entirely unsatisfactory position and undermine the central bargain. Rhode Island points out that it is a small, very populous state and that the practical consequences of establishing Indian country for its nearby towns may be far greater than they would be in less densely populated areas.
Even so, we are still bound by the language of the Settlement Act. Even viewing the State’s argument in contract terms, it is rare that a court will step in and reform a contract. See Broadley v. Mashpee Neck Marina, Inc., 471 F.3d 272, 275 (1st Cir.2006) (reversing the district court’s reformation of a contract). Our ability to edit, as opposed to interpret, an act of Congress is no less constrained: only a finding of absurdity, not present here, provides the necessary precondition. Compare Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510-11, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (editing a federal rule of evidence where the apparent distinction between civil plaintiffs and civil defendants would be “unfathomable”), with W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 100-01, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) (refusing to read in an additional component to a fee-shifting provision on the basis that Congress “simply forgot” to include it). See also Blumenthal, 228 F.3d at 91 (“While we might question the wisdom of different jurisdictional provisions governing different trust lands, we will not provide a strained interpretation of the Settlement Act simply to avoid such a result.”). The judiciary may not usurp the role of Congress.
D. Constitutional Claims
In support of recognition of its state sovereignty interests under the Constitution, the State presents four arguments. It argues first that the Indian Commerce Clause, U.S. Const, art. I, § 8, cl. 3, does not provide the Secretary the authority to displace state law within a state’s boundaries, and that section 465 of the IRA therefore violates the Tenth Amendment. Next, it argues that the Secretary may not, in any event, displace state law without the State’s consent, by operation of the Enclave Clause of the Constitution. Id. art. I, § 8, cl. 17. The State further argues that the Secretary’s action is barred by the Admissions Clause, id. art. IV, § 3, cl. 1, which prohibits formation of new states within the jurisdiction of any other state. Finally, the State argues that section 465 is an unconstitutional delegation of legislative authority. We reject all of these arguments.
1. The Indian Commerce Clause and the Tenth Amendment
The authority to regulate Indian affairs is within the enumerated powers of the federal government. Id. art. I, § 8, cl. 3; Cotton Petroleum Corp., 490 U.S. at 192, 109 S.Ct. 1698 (“[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”); Morton, 417 U.S. at 551, 94 S.Ct. 2474 (noting that Congress has plenary power “to deal with the special problems of Indians,” including the power to legislate on their behalf). “With the adoption of the Constitution, Indian relations became the exclusive province of federal law.” County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 234, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985); see also United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 194, 23 L.Ed. 846 (1876) (“Congress now has the exclusive and absolute power to regulate commerce with the Indian tribes_”).
The Tenth Amendment to the U.S. Constitution reserves to the states those powers not expressly delegated to the federal government. The powers delegated to the federal government and those reserved to the states by the Tenth Amendment are mutually exclusive. “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.... ” New York v. United States, 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Because Congress has plenary authority to regulate Indian affairs, section 465 of the IRA does not offend the Tenth Amendment. Cf. Herrera-Inirio v. INS, 208 F.3d 299, 307 (1st Cir.2000) (“Because Congress possesses plenary authority over immigration-related matters, it may freely displace or preempt state laws in respect to such matters”).
2. The Enclave Clause
The Enclave Clause of the Constitution provides that Congress may “exercise exclusive legislation ... over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” U.S. Const. art. I, § 8, el. 17. The Enclave Clause’s provision for exclusive federal jurisdiction was intended to ensure that “places on which the security of the entire Union may depend” are not “in any degree dependent on a particular member of it.” Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 530, 5 S.Ct. 995, 29 L.Ed. 264 (1885) (quoting The Federalist No. 43 (James Madison)) (internal quotation marks omitted). The State argues that “[p]rimary federal jurisdiction through federal superintendence over the land ... coupled with Congress’s exclusive legislative authority over Indian matters ... collectively operate to exclude state law [on trust lands].” As a result, it argues, trust acquisitions create federal enclaves and therefore require state consent.
We disagree. First, trust land does not fall within the plain language of the Enclave Clause. It is not purchased “for the erection of forts, magazines, arsenals, dockyards, [or] other needful buildings.” Rather, it is held in trust for the benefit of Indians.
Second, in Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091 (1930), the Supreme Court offered an Indian reservation as a “typical illustration” of federally owned land that is not a federal enclave because state civil and criminal laws may still have partial application thereon. Id. at 651, 50 S.Ct. 455. The Supreme Court recently confirmed the reasoning underlying the observation that Indian lands are not federal enclaves:
Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation’s border. Though tribes are often referred to as “sovereign” entities, it was “long ago” that “the Court departed from Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservation boundaries.”
Hicks, 533 U.S. at 361, 121 S.Ct. 2304 (alteration in original) (quoting White Mountain Apache Tribe, 448 U.S. at 141, 100 S.Ct. 2578 (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832))). As a result, the Secretary’s trust acquisition of lands for the Narragansetts does not even implicate the Enclave Clause.
3. The Admissions Clause
The Admissions Clause of the Constitution provides that “no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.” U.S. Const. art. IV, § 3, cl. 1. The State argues that the creation of Indian country within Rhode Island amounts to the formation of a new state within Rhode Island’s jurisdiction.
This argument is without merit. The Admissions Clause prohibits Congress only from unilaterally establishing within an existing state a body “on an equal footing with the original states in all respects whatsoever.” Coyle v. Smith, 221 U.S. 559, 567, 31 S.Ct. 688, 55 L.Ed. 853 (1911) (internal quotation marks omitted). For purposes of the Admissions Clause, a state is a body “equal in power, dignity and authority” to existing states. Id. The Secretary’s trust acquisition for the Narra-gansetts does not establish such a body. As a result, the acquisition does not violate the Admissions Clause.
4. The Nondelegation Doctrine
The Constitution vests “[a]ll legislative Powers [tjherein granted ... in a Congress of the United States.” U.S. Const, art. I, § 1. Congress “is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is ... vested.” Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446 (1935). Yet, the Supreme Court has recognized that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). As a result, the Supreme Court has repeatedly held that Congress may confer decisionmaking authority on agencies as long as it “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (second alteration in original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)) (internal quotation marks omitted). The Court “has deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’ ” Mistretta, 488 U.S. at 372-73, 109 S.Ct. 647 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946)).
The State and its amici argue that section 465 lacks the requisite “intelligible principle” and therefore is an unconstitutional delegation of legislative authority.
25 U.S.C. § 465 provides:
The Secretary of the Interior is authorized, in his discretion, to acquire ... any interest in lands, ... for the purpose of providing land for Indians.
For the acquisition of such lands, ... and for expenses incident to such acquisition, there is authorized to be appropriated, out of any funds in the Treasury not otherwise appropriated, a sum not to exceed $2,000,000 in any one fiscal year: Provided, That no part of such funds shall be used to acquire additional land outside of the exterior boundaries of Navajo Indian Reservation for the Navajo Indians in Arizona, nor in New Mexico, in the event that legislation to define the exterior boundaries of the Navajo Indian Reservation in New Mexico ... becomes law.
Title to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.
25 U.S.C. § 465.
In support of its argument, the State relies primarily on an Eighth Circuit decision, South Dakota v. U.S. Dep’t of the Interior, 69 F.3d 878 (8th Cir.1995), vacated, 519 U.S. 919, 117 S.Ct. 286, 136 L.Ed.2d 205 (1996), that held that section 465 was an impermissible delegation that was completely lacking in “boundaries” and “intelligible principles” and that “would permit the Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present.” Id. at 882. The circuit opinion in South Dakota was vacated by the Supreme Court, which did not publish an opinion explaining its decision, 519 U.S. at 919-20, 117 S.Ct. 286, and as a result has not set any precedent. Lovelace v. Se. Mass. Univ., 793 F.2d 419, 422 (1st Cir.1986) (per curiam).
On remand, the Eighth Circuit held that “the purposes evident in the whole of the IRA and its legislative history sufficiently narrow the delegation and guide the Secretary’s discretion in deciding when to take land into trust.” South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 797 (8th Cir.2005). The court noted that the statute allows the Secretary to acquire trust lands only for Indians as defined in 25 U.S.C. § 479, and that the statute prohibits the Secretary from taking extra-reservation lands into trust for Navajo Indians. See 423 F.3d at 797. The South Dakota court also referred to the legislative history of the IRA, which explains that the goals motivating trust acquisitions are “rehabilitati[on][of] the Indian’s economic life” and “develop[ment] [of] the initiative destroyed, by ... oppression and paternalism.” Id. at 798 (quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (quoting H.R.Rep. No. 73-1804, at 6-7 (1934))) (internal quotation marks omitted). As the dissent from the original South Dakota decision had noted, the historical context of the IRA is important; section 465’s “direction that land be acquired ‘for the purpose of providing land for Indians[ ]’ has specific meaning in light of the failure of the allotment policy and [congressional rejection of assimilation as a goal.” 69 F.3d at 887 (Murphy, J., dissenting).
Other provisions of the IRA reinforce such an interpretation. See 25 U.S.C. § 461 (prohibiting allotment of reservation lands to individual Indians); id. § 462 (extending indefinitely existing trust periods and restrictions on alienation of Indian lands); id. § 463(a) (authorizing restoration of surplus lands to tribal ownership); id. § 464 (prohibiting the transfer of restricted Indian lands except to Indian tribes). We find the reasoning of the Eighth Circuit’s second South Dakota opinion persuasive.
The Ninth Circuit’s decision in Confederated Tribes of Siletz Indians of Oregon v. United States, 110 F.3d 688 (9th Cir.1997), also supports the Secretary’s position that section 465 is not an unconstitutional delegation of legislative authority. Although not addressing a nondelegation challenge to section 465, the Confederated Tribes court stated that “[t]he general delegation of power to the Executive to take land into trust for the Indians is a valid delegation because Congress has decided under what circumstances land should be taken into trust and has delegated to the Secretary of the Interior the task of deciding when this power should be used.” Id. at 698.
The Supreme Court has upheld the constitutionality of statutes authorizing regulation in the “public interest,” see, e.g., Nat’l Broad. Co. v. United States, 319 U.S. 190, 225-26, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25, 53 S.Ct. 45, 77 L.Ed. 138 (1932), as well as statutes authorizing regulation to ensure fairness and equity, see Am. Power & Light Co., 329 U.S. at 104-05, 67 S.Ct. 133; Yakus v. United States, 321 U.S. 414, 420, 426-27, 64 S.Ct. 660, 88 L.Ed. 834 (1944). As the Court stated in its most recent nondelegation decision, it has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Am. Trucking Ass’ns, 531 U.S. at 474-75, 121 S.Ct. 903 (quoting Mistretta, 488 U.S. at 416, 109 S.Ct. 647 (Scalia, J., dissenting)) (internal quotation marks omitted). We similarly decline to do so here. We hold that section 465 is not an unconstitutional delegation of legislative authority.
E. APA-Related Claims
The focus of the en banc proceedings was on the three sets of arguments discussed above. The State presented another set of claims, rejected by the panel, that the Secretary’s decision to take the Parcel into trust for the Tribe violates the APA. The State did not seek en banc review of this issue. In granting en banc review, we •withdrew our panel opinion, which had been reported at 423 F.3d 45. In the interests of completeness, we now also reject the State’s APA claims.
We set forth here a shortened and slightly modified version of the panel’s opinion as to this issue.
The State claims that the Secretary’s action was an abuse of discretion under the APA. Our review of the Secretary’s decision is governed by section 706(2)(A) of the APA, which provides that a court may set aside agency action only where it finds the action “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency’s determination is arbitrary and capricious if the agency lacks a rational basis for making the determination or if the decision was not based on consideration of the relevant factors. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997). The Court’s review under section 706(2)(A) is highly deferential, and the Secretary’s action is presumed to be valid. See Conservation Law Found. of New Eng., Inc. v. Sec’y of Interior, 864 F.2d 954, 957-58 (1st Cir.1989). A reviewing court cannot substitute its own judgment for that of the agency. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Associated Fisheries, 127 F.3d at 109. No deference is given to the district court’s decision. Associated Fisheries, 127 F.3d at 109.
The State makes five arguments as to why the Secretary’s decision was unlawful under section 706(2)(A): (1) the BIA relied on the Tribe’s findings, rather than conducting an independent evaluation of the Tribe’s application; (2) the BIA misapplied the factors enumerated in 25 C.F.R. § 151.10 for evaluating a fee-to-trust transfer; (3) the Native American Housing Assistance and Self-Determination Act cooperation agreement waiver violated due process; (4) the BIA failed to consider the environmental impact of the housing project planned for the Parcel and the project’s compliance with the Coastal Zone Management Act; and (5) the BIA failed to consider noncompliance with the Indian Gaming Regulatory Act. We disagree, and we find that the Secretary’s decision to accept the Parcel into trust did not violate the APA.
1. Independent Evaluation of the Tribe’s Trust Application
The State claims that the BIA’s decision to take the Parcel into trust was arbitrary and capricious because it relied exclusively on the Tribe’s assertions and failed to consider other important facts that occurred between 1993 and 1997. The State points to substantial passages in the Secretary’s decision that contain verbatim restatements of information provided by the Narragansett Tribe in support of their 1993 trust application as evidence that the BIA failed to conduct an independent evaluation of the Tribe’s 1997 application.
There is ample evidence in the administrative record that the BIA conducted its own, independent evaluation of the Tribe’s application and that it considered the events following the Tribe’s 1993 application. For example, between 1993 and 1997, the BIA required the Tribe to supplement its initial Environmental Assessment; conducted an environmental hazard survey of the Parcel; required confirmation of consistency with the State’s Coastal Resources Management Plan; was apprised of, and offered to facilitate, negotiations between the Tribe, the Town, and the State concerning both environmental and jurisdictional issues attendant to the Tribe’s development of the Parcel; and specifically requested that the Regional Solicitor address several legal and jurisdictional issues raised by the State in its comments to the BIA on the Tribe’s trust application. This demonstrates that the BIA’s determination was the result of its own, independent evaluation of the 1997 application.
2. Application of the 25 C.F.R. § 151.10 Factors
The State claims that the BIA failed to apply the proper criteria when it evaluated the Tribe’s application for trust acquisition. The regulations governing the BIA’s evaluation of applications to have land taken in trust are laid out at 25 C.F.R. part 151. The factors to be considered for an on-reservation acquisition are found in section 151.10, and the factors for an off-reservation acquisition are found in section 151.11. In making the decision to accept the Parcel into trust, the BIA considered the on-reservation factors in section 151.10. The State claims that the BIA failed to consider “the need of ... the tribe for additional land,” 25 C.F.R. § 151.10(b). The State also questions whether the BIA sufficiently scrutinized “the tribe’s justification of anticipated benefits from the acquisition” as required by section 151.11(b).
A reviewing court will determine only “whether the [BIA’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The fact that the BIA found the Parcel, which is across a town road from the settlement lands, to be “contiguous” to the settlement lands that are currently in trust, and thus determined that it should consider the “on-reservation” factors enumerated in 25 C.F.R. § 151.10, is certainly not clear error and is within the Secretary’s discretion. The record shows that the BIA complied with section 151.10, including evaluating the Tribe’s need for the additional land, and the State has not shown that the Secretary made a clear error of judgment.
It was not necessary for the BIA to consider the factors under section 151.11, since it found section 151.10 to be applicable to this trust determination. While the Secretary need not have considered section 151.11(b), the close proximity between the Tribe’s settlement lands and the Parcel would not have required the Secretary to give the greatest scrutiny to the “tribe’s justification of anticipated benefits from the acquisition.” 25 C.F.R. § 151.11(b).
3. The Native American Housing Assistance and Self-Determination Act Cooperation Agreement Requirement
At the time of the BIA’s decision to acquire the Parcel into trust, HUD was precluded from releasing funds pursuant to the Native American Housing Assistance and Self-Determination Act for any tribe’s housing development unless an agreement for local cooperation on issues such as taxes and jurisdiction had been entered into by the tribe and the local government where the housing was located. 25 U.S.C. § 4111(c). In the instant case, the Narragansett Tribe did not obtain such an agreement with the Town. However, section 4111(c) has since been amended to permit HUD to waive the cooperation agreement requirement, 25 U.S.C. § 4111(c), as amended by Pub.L. No. 106-569, § 503(a)(2), 114 Stat. 2944, 2962 (2000), and the Tribe claims to have obtained such a waiver.
The State argues that this waiver is invalid because the State apparently did not receive notice of the Tribe’s application for a waiver until after the waiver had been granted. On appeal, the State contends that if the BIA accepted the waiver, the BIA has inherited the legal error and acted in an arbitrary and capricious manner. As the district court noted, “25 U.S.C. § 4111(c) establishes a prerequisite to HUD’s award of housing grants. It does not pertain to the BIA’s trust acquisition authority.” Carcieri, 290 F.Supp.2d at 178. Nothing in the § 151.10 factors requires the BIA to ensure that a local cooperation agreement is in place for an Indian Housing project.
4. Environmental Considerations
The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321^370(f), and its supporting regulations promulgated by the Council on Environmental Quality (CEQ), 40 C.F.R. parts 1500-1518, direct federal agencies to consider the environmental impact of agency decisions. The State argues that the Secretary and the BIA (1) failed to consider the environmental impact in reaching, the decision to accept the Parcel into trust because no Environmental Impact Statement (EIS) was prepared, and (2) failed to conduct their own evaluation of the environmental impact and instead improperly relied on an Environmental Assessment (EA) submitted by the Narragansett Tribe. 'We disagree.
Federal agencies are required to prepare an EIS for any action that could significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.3. NEPA provides that “to the fullest extent possible ... all agencies of the Federal Government shall ... include in every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action.” 42 U.S.C. § 4332(2)(C). However, in the absence of a finding that the proposed action would significantly affect the quality of the human environment, the BIA was not required ’to prepare an EIS. See, e.g., Londonderry Neighborhood Coal. v. Fed. Energy Regulatory Comm’n, 273 F.3d 416, 419 (1st Cir.2001) (quoting Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 49 (D.C.Cir.1999)).
The CEQ has issued guidance on whether to prepare an EIS. This guidance provides that “if the agency determines on the.basis of the environmental assessment not to prepare a statement,” then the agency should “[pjrepare a finding of no significant impact” pursuant to section 1508.13. 40 C.F.R. § 1501.4(e). The applicant may prepare the EA provided that the agency “make[s] its own evaluation of the environmental issues and take[s] responsibility for the scope and content of the environmental assessment.” Id. § 1506.5(b). In this case, the BIA followed its standard operating procedure for externally initiated proposals by obtaining an EA from the Tribe and considering it along with supplemental information the BIA requested from the Tribe and information gathered independently by the BIA. See NEPA Handbook para. 4.2.B. After reviewing the EA and the requisite supplemental information, the BIA completed its environmental analysis and issued a finding of no significant impact. The BIA’s issuance of a finding of no significant impact satisfied its responsibilities under NEPA. - See 40 C.F.R. § 1501.4(e).
Separately, the State contends that the BIA should have obtained a federal consistency review in accordance with the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1465, before making its trust determination. The CZMA requires state consultation on federally permitted coastal development activities. The State asserts that the BIA’s failure to take direct action to ensure that the housing project was consistent with the Rhode Island Coastal Zone Management Program (RICZMP) before making its trust determination was a violation of the CZMA. We disagree.
The State has failed to demonstrate that a consistency review of the Tribe’s housing development was necessary at the trust acquisition stage. The development of the Parcel is a project that was commenced by the Tribe, in conjunction with HUD, prior to the Tribe’s application for trust acquisition. The Rhode Island Coastal Resources Management Council correctly recognized that the development of the Parcel, which required its own federal consistency determination, was a separate matter from the trust acquisition, and properly found that the Tribe’s application for trust status was consistent with the RICZMP.
5. The Indian Gaming Regulatory Act
Finally, the State contends that the true purpose of the Tribe’s application for trust acquisition is the development of gambling facilities on the Parcel — rather than development of tribal housing as the BIA found in its evaluation pursuant to 25 C.F.R. § 151.10(c) — and that the BIA’s failure to consider the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, in its decision was an abuse of discretion. We reject the State’s argument that the Secretary’s decision to acquire the Parcel in trust should be reversed and that further inquiry into whether the Parcel would be used for gaming purposes is now required.
No evidence that the Tribe intends to use the Parcel for anything other than tribal housing, as determined by the BIA, was presented. “In fact, after the plaintiffs expressed concern over the potential for development of a gaming facility on the parcel, the tribe reaffirmed that it intended to use the parcel for a housing development and stated that it had ‘no immediate plans for any further future development.’ ” Carcieri, 290 F.Supp.2d at 178 (quoting II Admin. Rec., tab N).
As support for its position, the State points to an IBIA decision that reversed a trust acquisition decision due to the BIA’s failure to consider the impact of a potential casino, even though the applicants denied any intention of using the property for a casino. See Vill. of Ruidoso, N.M. v. Albuquerque Area Dir., Bureau of Indian Affairs, 32 I.B.I.A. 130 (1998). However, in Village of Ruidoso, the IBIA determined that, despite the tribe’s denial that the application for trust acquisition was for gaming purposes, it was clear from the planned gaming-related uses of the property and the fact that the property had been given to the tribe by a company that the BIA “apparently understood to have some gaming connection with the Tribe” that the application might well have been for gaming purposes. Id. at 136. In that situation, the BIA should have further analyzed the possibility of gaming. Id. at 140.
We agree with the district court that although the possibility that the parcel might be used for gaming activities was raised before the BIA, the bureau’s determination that the parcel would be used to provide housing was amply supported by the record. In view of the deferential standard of review afforded to agency decisions under the APA, the bureau’s determination in this regard must be sustained.
Carcieri, 290 F.Supp.2d at 178.
III.
The decision of the district court is affirmed. Costs are awarded to the Secretary.
. By contrast, the Indian Gaming Regulatory Act provides the State with a limited role in determining whether land is taken into, trust for gaming purposes. See 25 U.S.C. § 2719(b)(1)(A).
. The State's challenges to the Secretary's authority under the IRA and the Constitution have national implications that reach beyond Rhode Island; accordingly, ten states and the National Coalition Against Gambling Expansion have filed amicus briefs in support of Rhode Island. Similarly, numerous tribes and tribal organizations have filed amicus briefs in support of the Secretary. We acknowledge the able assistance provided by the amici curiae states and National Coalition Against Gambling Expansion on behalf of the State/ and amici curiae National Congress of American Indians, individual Indian tribes and tribal organizations, and the Mississippi Band of Choctaw Indians on behalf of the Secretary.
. In "an abundance of caution," we recognized that the Tribe may still possess some autonomy in local government matters such as membership rules, inheritance rules, and regulation of domestic relations. Narragansett III, 449 F.3d at 26.
. The Housing Authority was a duly recognized Indian housing authority and was given HUD funds to finance the purchase of the property and the construction of approximately 50 units of housing. See Indian Housing Act of 1988, 42 U.S.C. §§ 1437aa-1437ff (repealed by Native American Housing Assistance and Self-Determination Act of 1996, 25 U.S.C. §§ 4101-4243).
The district court found the proposed housing project could be detrimental to coastal and groundwater resources, but also held that the Parcel was a "dependent Indian community” within the meaning of 18 U.S.C. § 1151(b) and therefore partially denied in-junctive relief. Narragansett Elec. Co., 878 F.Supp. at 355-57, 366. On appeal, this court held that the land for the housing project was not a "dependent Indian community” because federal ownership of the land and federal action to "set aside” the land were lacking. Narragansett II, 89 F.3d at 921-22. Thus, the Parcel could not be considered Indian country under 18 U.S.C. § 1151(b), and the housing project being constructed on the site was not exempt from state and local building and zoning restrictions. Accordingly, this court reversed the district court and directed the district court to enter an order granting the injunction. 89 F.3d at 922.
. The IBIA rejected the State's insistence that the Secretary take account of the potential use of the Parcel for gaming purposes under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701, calling such a possibility merely speculative. 35 I.B.I.A. at 103. The IBIA also concluded that there had been no violation of the Coastal Zone Management Act, 16 U.S.C. § 1451. 35 I.B.I.A. at 103.
. At oral argument, the Secretary indicated that although a tribe has civil regulatory jurisdiction over lands taken into trust, a state may seek to enforce its laws — to the extent they are not preempted by federal law — on trust lands either by agreement with the tribe or by seeking a determination in federal court that the State's interests with respect to enforcing a particular regulation outweigh the interests of the tribe and the federal government in fostering tribal self-government. See Hicks, 533 U.S. at 362, 121 S.Ct. 2304 ("When ... state interests outside the reservation are implicated, States [sometimes] may regulate the activities even of tribe members on tribal land.”); see also id. at 364, 121 S.Ct. 2304 (holding that state officers may execute on tribal lands process related to off-reservation violations of state law); Washington v. Confederated Tribes of Colville, 447 U.S. 134, 151, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (explaining that the state could require Indian tribes to collect taxes on sales of cigarettes to non-Indians). That issue is beyond the scope of this opinion.
. We reject two additional arguments offered by the State. First, it is not significant that 25 U.S.C. § 478 required tribes to opt out of the IRA by a fixed date, rather than one that depended on the date of recognition. In general, it is difficult to see why any tribe would opt out of a statute designed to benefit it, and the legislative history suggests that the provision was a legacy from earlier drafts of the bill that imposed duties on tribes in return for the benefits. See Hearing on S.2755 and S.3645, supra, at 262. As eventually passed, the only potential purpose of the election was to protect the rights of those that preferred the allotment system, an issue not relevant to tribes recognized after 1934.
Second, we hesitate to attach much weight to the fact that later Congresses have explicitly provided for the IRA to apply to newly recognized tribes. As the Supreme Court has recently cautioned again, the views of later Congresses carry little weight in determining the intent of the Congress that enacted the statute in question. See Massachusetts v. EPA, - U.S. -, 127 S.Ct. 1438, 1460 & n. 27, 167 L.Ed.2d 248 (2007). For the same reason, we do not take later enactments such as the 1994 amendments to section 476 to establish that Congress intended to make no distinctions among tribes in 1934. The parties have not pointed us to contemporaneous legislation that sheds further light on the issue.
. One difficulty arises from the fact that there seems to be no comprehensive list of tribes that were recognized and under federal jurisdiction as of June 18, 1934.
. The Secretary’s interpretation also is consistent with regulations interpreting and implementing other federal statutes establishing Indian programs and services. For example, the applicability of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, the applicability of minimum standards for basic education of Indian children in schools operated by the BIA, id. § 2001, and eligibility for Indian financial assistance and social services programs, id. § 13, all are defined in terms of current federal recognition. See 25 C.F.R. § 23.2; id. § 36.3; id. § 20.100.
. Indian amici also submitted opinions of the Solicitor of the Department of the Interior discussing various tribes' eligibility to organize under the IRA as evidence that the Secretary has consistently interpreted "now” in section 479 to mean “today.” The State's attempt to distinguish these opinions is unsuccessful. For example, in discussing the IRA eligibility of the St. Croix Indians of Wisconsin, the Solicitor makes no mention whatsoever of the tribe’s status as of 1934. Solicitor’s Opinion, Jan. 29, 1941, 1 Op. Sol. on Indian Affairs 1026 (1979). The State argues that it is clear from context that the tribe was not recognized as of 1934. Yet, although this is true, the Solicitor discusses the fact that the tribe has never had a separate tribal status, and that until it does so, only those Indians who meet the half-blood test are eligible to organize under the IRA. Id. at 1027. Moreover, contrary to the State's position, the Solicitor's opinion indicates that if the tribe takes certain steps, it may later become eligible to organize under the IRA as a recognized band. Id.
Similarly, in discussing the Nahma and Beaver Island Indians’ eligibility to organize under the IRA, the Solicitor discusses the tribe's historical status, but then continues to discuss its then-current situation. Solicitor’s Opinion, May 31, 1937, 1 Op. Sol. on Indian Affairs 747, 747-48 (1979). If the Solicitor had been concerned only with the tribe's status as of 1934, there would have been no reason for him to have considered the "recent ... attitude of the Interior Department on the band status” of the Nahma and Beaver Indians, nor for him to state that it was "out of the question to establish any existing band status” before concluding that the Indians were eligible for organization only under the IRA's half-blood provision. Id. at 748.
. Nor is this case controlled by our en banc decision in Narragansett III. That case concerned the State’s jurisdiction over the settlement lands, see 449 F.3d at 20, and has no bearing on whether the Settlement Act abrogates the Secretary's trust authority outside of the settlement lands. Similarly, cases holding that section 1708(a) survived federal recognition and the conveyance of the settlement lands to federal trust are of no help to the State, since section 1708(a) refers only to the settlement lands. See Narragansett Indian Tribe v. Nat’l Indian Gaming Comm’n, 158 F.3d 1335, 1341-42 (D.C.Cir.1998); Narragansett I, 19 F.3d at 694-95.
. The State adds nothing to its argument by also styling it as an issue of claim preclusion. Obviously, the earlier litigation that resulted in the Settlement Act could not have resolved the question raised in this case of whether the Settlement Act restricts the Secretary's trust authority under the IRA. By invoking "principles of res judicata,” the State means nothing more than that the Tribe should be held to the settlement to which it previously agreed. What precisely the Tribe agreed to in the settlement is, of course, the question we are addressing.
. Section 1705 applies to the Narragansett Tribe and any land in Charlestown, Rhode Island. Section 1712 applies to land elsewhere in Rhode Island transferred by other Indian tribes. The relevant provisions in each are materially the same for our purposes here.
. We attach little significance to the fact that the Mashantucket Settlement Act explicitly authorizes trust acquisition, while the Rhode Island Settlement Act does not. The former, unlike the latter, granted federal recognition to the tribe. See 25 U.S.C. § 1758(a).
. We do not accept the State's comparison of the Rhode Island Settlement Act to the Alaska Native Claims Settlement Act (ANC-SA), 43 U.S.C. §§ 1601-1629h, and the resulting suggestion that trust acquisition would be as inappropriate in Rhode Island as it purportedly would be in Alaska. ANCSA eliminated previously existing Indian country, in Alaska. See Native Vill. of Venetie, 522 U.S. at 532-34, 118 S.Ct. 948. Even if one might infer from that elimination an intent to pre-elude later trust acquisitions, no such intent can be inferred from the Rhode Island Settlement Act's failure to affirmatively establish Indian country for an as-yet unrecognized tribe.
. The State has not cited any legislative history that might lead us to interpret the text differently.
. There are also other examples of Congress's imposing explicit conditions on the taking of land into trust, for example, by limiting the number of acres of land and the number of acre feet of water rights. See Nevada v. United States, 221 F.Supp.2d 1241, 1244 (D.Nev.2002) (discussing section 103(A) of the Fallon Paiute Shoshone Indian Tribe Water Rights Settlement Act of 1990, Pub.L. No. 101-618, 104 Stat. 3289, 3291).
. The Secretary takes the position that he has no authority to impose restrictions on land taken into trust under the IRA, absent a statutory directive imposing such restrictions. We do not reach this issue. To the extent that the State argues that the Settlement Act itself is such a statutory directive requiring a restricted trust, we reject that argument for the same reasons that we found that the Settlement Act does not eliminate trust authority altogether.
. In so holding, the Eighth Circuit agreed with the Tenth Circuit’s decision in United States v. Roberts, 185 F.3d 1125 (10th Cir.1999), which held that section 465 contains standards sufficient to guide the Secretary’s exercise of discretion. Id. at 1137.
. Amici states argue that legislative history should not factor into the intelligible principle analysis. We note simply that the Supreme Court in Mistretta referred to legislative history in explaining that the Sentencing Reform Act of 1984 was not an unconstitutional delegation of legislative authority. See 488 U.S. at 375 n. 9, 376 n. 10, 109 S.Ct. 647.
. For the purpose of 25 C.F.R. part 151, land is considered to be on-reservation if it is "located within or contiguous to an Indian reservation,” 25 C.F.R. § 151.10, and off-reservation where "the land is located outside of and noncontiguous to the tribe’s reservation,” id. § 151.11. The State challenges the finding by the BIA and the district court that the Parcel is adjacent to the settlement lands, yet recognizes that this determination is insignificant to the application of either section in this case, as the sections differ only slightly. Compare id. § 151.10, with id. § 151.11. The Parcel is adjacent to the Settlement Lands, but separated from them by a town road. Narragansett II, 89 F.3d at 911.
. Those factors include:
(a) The existence of statutory authority for the acquisition and any limitations contained in such authority;
(b) The need of the individual Indian or the tribe for additional land;
(c) The purposes for which the land will be used;
(e) If the land to be acquired is in unrestricted fee status, the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls;
(f) Jurisdictional problems and potential conflicts of land use which may arise; and
(g) If the land to be acquired is in fee status, whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status.
25 C.F.R. § 151.10.
. The criteria to be considered pursuant to section 151.11(b) are as follows:
The location of the land relative to state boundaries, and its distance from the boundaries of the tribe's reservation, shall be considered as follows: as the distance between the tribe's reservation and the land to be acquired increases, the Secretary shall give greater scrutiny to the tribe’s justification of anticipated benefits from the acquisition. ...
25 C.F.R. § 151.11(b).
. Specifically, 16 U.S.C. § 1456(c) provides, in relevant part:
(1)(A) Each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs. A Federal agency activity shall be subject to this paragraph unless it is subject to paragraph (2) or (3).
(C) Each Federal agency carrying out an activity subject to paragraph (1) shall provide a consistency determination to the relevant State agency....
(2) Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs.
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HOWARD, Circuit Judge,
dissenting.
Respectfully, I disagree with the majority’s analysis of the Settlement Act. In my view, the majority opinion disregards Congress’s (and the parties’) purpose in passing the Settlement Act and is inconsistent with our own recent interpretation of the Settlement Act. See Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir.2006) (en banc). At bottom, under the Settlement Act, the Secretary may only take the Parcel into a restricted trust that provides for Rhode Island’s continued criminal and civil jurisdiction over the Parcel. The State makes this argument in two forms. First, by arguing that the Settlement Act effectuates a partial implied repeal of the IRA as to state jurisdiction on land taken into trust by the BIA. Second, by arguing that the statutes can be harmonized by reading the IRA narrowly and subject to the Settlement Act’s provisions. Either approach gets to the same conclusion. Significantly, the generous rules of “Indian construction” do not apply in analyzing an implied repeal. See Passamaquoddy Tribe v. State of Maine, 75 F.3d 784, 790 (1st Cir.1996) (the normal principles of implied repeal are applied in the Indian law context).
The parties and amici do an excellent job in acquainting the court with the many complexities of both the case and the issues inherent in “Indian law.” However, the ultimate resolution of the case comes down to a very narrow question: In the specific context of the Tribe and State, what did Congress intend the Settlement Act to do?
The key provision is Section 1705, which is written far more broadly than the majority concludes. In its first two provisions that section retroactively ratifies all the Tribe’s prior land transfers anywhere in the United States and extinguishes the Tribe’s aboriginal title in all such lands. See 25 U.S.C. § 1705(a)(1) & (2). More significantly, Section 1705 goes on to extinguish future land claims:
(3)by virtue of the approval of a transfer of land or natural resources effected by this section, or an extinguishment of aboriginal title effected thereby, all claims against the United States, any State or subdivision thereof, or any other person or entity, by the Indian Corporation or any other entity presently or at any time in the past known as the Narragansett Tribe of Indians, or any predecessor or successor in interest, member of stockholder thereof, or any other Indian, Indian nation, or tribe of Indians, arising subsequent to the transfer and based upon any interest in or right involving such land or natural resources (including but not limited to claims for trespass damages or claims for use and occupancy) shall be regarded as extinguished as of the date of the transfer.
Id. § 1705(a)(3). This provision obviously goes well beyond merely extinguishing aboriginal title (and claims based thereon), which was accomplished in the prior subsection. See id. § 1705(a)(2). This language forecloses any future “Indian” land claim of any type by the Tribe regarding land in Rhode Island (or anywhere in the United States, for that matter). Thus, Congress (and the parties) intended to resolve all the Tribe’s land claims in the state once and for all.
The majority argues that Section 1705(a)(3) cannot be read so broadly; otherwise, the Tribe would be barred from asserting any land claims. See ante, at 36-37. But the majority disregards a significant factor — the nature of the land claims that were barred. The legislative history of the Settlement Act specifically states that the “extinguishment of Indian land claims is limited to those claims raised by Indians qua Indians.” H.R. Rep. 95-1453, U.S.Code Cong. & Admin.News 1978, 1948, at 1955 (1978) (emphasis added). As we recently stated, through the Settlement Act “the Tribe abandoned any right to an autonomous enclave, submitting itself to state law as a quid pro quo for obtaining the land that it cherished.” Narragansett Tribe, 449 F.3d at 22. Thus, the Tribe would be free to assert any claim that any other landowner in Rhode Island could make under state law, but would be foreclosed from making claims based entirely on the Tribe’s status as an Indian tribe. It is beyond peradventure that asking to have land taken into trust by the BIA under the IRA to effect an ouster of state jurisdiction is a quintessential “Indian” land claim.
Moreover, “Congress does not legislate in a vacuum,” and among the matters that a court must consider in assessing a statute are general policies and pre-existing statutory provisions. Passamaquoddy Tribe, 75 F.3d at 789. The Settlement Act was enacted over 40 years after Section 465 of the IRA and, given the explicit acknowledgment of possible future recognition for the Tribe, Congress was well aware of the IRA when enacting the Settlement Act. It is neither logical nor necessary to find that Congress enacted legislation effectuating this carefully calibrated compromise between three sovereigns, which required significant expenditures by both the federal government and the State, which provided a significant amount of land to the Tribe, and which provided for a delicate balancing of the parties’ interests, only to permit the legislation to be completely subverted by subsequent agency action.
On this score, the majority misses the exquisite irony that the Parcel was part of the lands originally claimed by the Tribe. It would be antithetical to Congress’ intent to allow the Tribe to purchase a portion of the originally disputed lands that were the subject of the earlier lawsuits that ultimately led to the JMOU and Settlement Act, place it in trust with the BIA, and thereby create “Indian country” in direct contravention of the Settlement Act’s prohibitions. For this same reason, the majority’s attempt to distinguish our recent Narragansett Tribe opinion as pertaining only to the “Settlement Lands” is unpersuasive. See ante, at 34 n. 11. By that reasoning, the Tribe could swap the Settlement Lands for adjacent land and undo any limitations contained in the Settlement Act. The Settlement Act cannot be reasonably construed to allow such absurd results.
Further, the Settlement Act was novel; it was the first statute resolving Indian land claims, premised upon the Noninter-course Act, growing out of an out-of-court settlement negotiated by a tribe and the state/landowners. See H.R. 95-1453, at 1951 (1978). Indeed, it was expected to serve as a template for the resolution of other' Eastern tribes’ land claims under the Nonintercourse Act. See id.; see also Oneida Indian Nation, 125 S.Ct. at 1483-85 (discussing Nonintercourse Act and original 13 states’ “pre-emptive right to purchase from the Indians”). In light of the fact that the Settlement Act was the first statute of its kind, the majority’s observation that subsequent statutes were more explicit in limiting certain aspects of the Secretary’s power proves nothing. Elaborate statements regarding the Tribe’s relationship with the BIA would have been unwarranted in the Settlement Act, given that the Tribe had not yet been recognized.
' Moreover, that subsequent acts dealing with Eastern tribes made specific provision for the Secretary’s ability to take land in trust for a tribe, see, e.g., 25 U.S.C. § 1771d(c) & (d) (Massachusetts Indian Claims Settlement); id. § 1724(d) (Maine Indian Claims Settlement); id. § 1754(b) (Connecticut Indian Claims Settlement), supports the conclusion that Congress anticipated no such result under the Settlement Act. Given that the State had full criminal and civil jurisdiction over its territory, that any potential jurisdictional issue concerning the Settlement Lands was specifically addressed, and that all future Indian land claims were barred, there would be no future land scenarios that Congress would need to address more specifically (as it' did in the other acts). As we have noted, “the Settlement Act, properly read, ensures that the State may demand the Tribe’s compliance with state laws of general application.” Narragansett Tribe, 449 F.3d at 26.
There is also nothing novel about requiring the BIA to accept the Parcel into trust with restrictions. The BIA is authorized to take restricted interests in land into trust, see 25 U.S.C. § 465, and, in dealing with other tribes, Congress has specifically directed the BIA to take land into trust subject to a settlement act’s provisions, see, e.g., id. § 1771d(d); id. § 1773b.
It is also worth noting that Congress acted promptly to preserve the State’s jurisdiction over the Tribe’s lands the last time this court challenged it. When this court held that the Tribe exercised suffi-dent jurisdiction and governmental authority over the Settlement Lands to invoke the Indian Regulatory Gaming Act, see Narragansett Tribe, 19 F.3d at 703, Congress promptly amended the Settlement Act to provide explicitly that the Settlement Lands are not “Indian lands” for purposes of that Act, see 25 U.S.C. § 1708(b).
I respectfully dissent.
. I do not challenge the majority's conclusion that the BIA may take the Parcel into trust, as the State previously permitted the Narragansetts to take the Settlement Lands into trust in 1988. But any new trust lands must also be explicitly made subject to the State’s criminal and civil laws.
. Indeed, the very breadth of the language indicates more was contemplated by the parties than merely resolving an immediate dispute over title.
. The Tribe would still have the option of obtaining the State’s consent to make certain Indian land claims — such as the 1988 placement of the settlement lands in trust (subject to Rhode Island law) with the BIA.
. The Tribe’s recognition by the BIA changed little, as this court has held that the jurisdictional grant to the State in the Settlement Act survived such recognition. See Narragansett Indian Tribe, 19 F.3d at 694-95.
. In extinguishing the Tribe’s aboriginal title in the Settlement Act, Congress was inspired by the Alaska Native Claims Settlement Act (“ANCSA”). See H.R. Rep. 95-1453, at 1951. As noted by the Supreme Court, the ANCSA sought to accomplish this goal “without creating a reservation system or lengthy wardship or trusteeship.” Alaska v. Native Village of Venetie Tribal Govt., 522 U.S. 520, 524, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (internal citation and quotation omitted).
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SELYA, Senior Circuit Judge,
dissenting.
I am in complete agreement with Judge Howard’s cogent and articulate dissent, and I join it unreservedly. Nevertheless, I write separately to express my regret that, in taking far too narrow a view of the Settlement Act, the majority gives short shrift not only to the interests of the State of Rhode Island but also to the carefully calibrated arrangements crafted between the State and the Tribe.
We previously have made clear that the touchstone in resolving jurisdictional disputes between the State and the Tribe is the full effectuation of the parties’ intent. See Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 22, 25 (1st Cir.2006) (en banc). Yet, today, the majority sets aside the parties’ intent in favor of a wooden reading of one subsection of the Settlement Act. See ante at 34 (“By its terms, section 1708(a) applies state law only to the 1800 acres of ‘settlement lands.’ The Parcel is not part of the settlement lands.”).
Despite the artful draftmanship of the majority opinion, the provision on which it relies cannot be wrested from its historical context and read in a vacuum. The Settlement Act, when taken together with the extinguishment of all Indian claims referable to lands in Rhode Island, the Tribe’s surrender of its right to an autonomous enclave, and the waiver of much of its sovereign immunity, see Narragansett Indian Tribe, 449 F.3d at 22, 24-25, suggests with unmistakable clarity that the parties intended to fashion a broad arrangement that preserved the State’s civil, criminal, and regulatory jurisdiction over any and all lands within its borders. Therefore, the Settlement Act logically and equitably should be read to prohibit any unilateral action that would upset this hard-bargained and delicate jurisdictional balance.
The Secretary’s taking of an after-acquired parcel into an unrestricted trust is just such an event. It strains credulity to surmise, as does the majority, that the State would have made such substantial concessions — including the transfer, free and clear, of 1800 acres of its land — while leaving open the gaping loophole that today’s decision creates.
The majority admits that this case is “in many ways a proxy for the State’s larger concerns about its sovereignty,” ante at 20, including the State’s understandable worry that the Tribe will use this parcel (or future parcels that might be acquired and placed into trust) for activities that would be forbidden under State law and anathema to a majority of the State’s citizens. At oral argument, the Secretary of the Interior and the Bureau of Indian Affairs appeared to disclaim any vestige of responsibility for the State’s concerns. Despite this disclaimer and “the genuineness of the State’s sense that its bargain has been upset,” ante at 38, the majority turns its back on the State.
In my view, this is error — and error of the most deleterious kind. The majority, without anything approaching sufficient justification, is engaging in pointless literalism and forcing the State to rely on the faint velleity that the Secretary will use caution in the exercise of his responsibilities in connection with the Parcel. While “hope” is the official motto of Rhode Island, the State should not be force-fed hope in place of rights for which it has bargained.
As Indian tribes evolve in modern society, old legal rules tend to blur. The controversy that divides our court today is vexing and of paramount importance to both the State and the Tribe. Thus, the issue — as well as the underlying principles of Indian law — doubtless would benefit from consideration by the Supreme Court. That is a consummation devoutly to be wished. In the meantime, however, there is too much at stake to allow the Tribe, with the contrivance of the Secretary’s taking the Parcel into trust, to walk away from an arrangement that it helped to fashion and from which it has benefitted over the years.
I respectfully dissent.
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BALDOCK, Circuit Judge.
Plaintiffs Lodge Tower Condominium Association and the Town of Vail, Colorado appeal a district court order rejecting their administrative challenges to a decision by the United States Forest Service to exchange federal land located in Vail for private land located in a wilderness area. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Section 1716 of the Federal Land Policy and Management Act (“FLPMA”) authorizes the Department of Interior and the Forest Service to exchange public lands for private lands if “the public interest will be well served by making that exchange.” 43 U.S.C. § 1716(a). Pursuant to this statute, the Forest Service agreed to exchange a two-acre parcel of federal land — administered by the Forest Service but located within the boundaries of the Town of Vail — for a 385-acre parcel of privately-owned land located within' the Eagles Nest Wilderness Area. The exchange proponent — Lodge Properties, Inc.— proposed budding an hotel expansion on the two-acre parcel. Western Land Exchange Company assisted Lodge Properties, Inc. in the administrative proceedings prior to the exchange.
Lodge Tower Condominium Association, an unincorporated association of owners of condominiums constructed on land adjacent to the two-acre parcel, and the Town of Vail opposed the exchange at the administrative level. After the Forest Service rejected Plaintiffs’ objections and approved the exchange, the Bureau of Land Management issued a patent to the two-acre parcel to Lodge Properties, Inc.
Plaintiffs filed a complaint in the district court seeking judicial review under § 706 of the Administrative Procedure Act (“APA”), of the agency proceedings which culminated in the land exchange. See 5 U.S.C. § 706. Plaintiffs named as defendants federal officials who made the administrative decisions which led to the issuance of the patent to the two-acre parcel. Plaintiffs also named the private exchange proponents as defendants. Plaintiffs contended that the district court should set aside the exchange because it violated FLPMA and the National Environmental Policy Act (“NEPA”). The district court reviewed Plaintiffs’ contentions under the standards governing judicial review of agency action set forth in § 706 of the APA and concluded that there was “no basis for setting aside any agency action in this case.” Lodge Tower Condominium Ass’n v. Lodge Properties, Inc., 880 F.Supp. 1370, 1387 (D.Colo.1995). Consequently, the district court dismissed Plaintiffs’ case.
On appeal, Plaintiffs contend the district court erred in dismissing their complaint because the exchange was arbitrary, capricious, and contrary to law. Specifically, Plaintiffs argue: (1) the exchange was not in the public interest as required under FLPMA, 43 U.S.C. § 1716(a); (2) the exchange violated NEPA because it was premised on an inadequate environmental assessment; and (3) the Forest Service and the Bureau of Land Management violated regulations governing administrative stays and issued the patent to the two-acre parcel in violation of an administrative stay. Plaintiffs request this court to reverse the district court, rescind the patent to the property, order the Forest Service to quitclaim the wilderness property back to the private owner, and remand the case to the agency for further proceedings under FLPMA and NEPA.
We review Plaintiffs’ challenges to the land exchange under the deferential standard set forth in the APA: “The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Review under § 706(2)(A) is narrow, and the agency need only demonstrate that it considered relevant factors and alternatives after a full ventilation of issues and that the choice it made was reasonable based on that consideration.” Mount Evans Co. v. Madigan, 14 F.3d 1444, 1453 (10th Cir.1994).
We have considered the district court’s order, the briefs of the parties, the parties’ oral arguments, and reviewed the entire record on appeal. After examining the applicable law and applying the deferential standards governing judicial review of agency action set forth in § 706(2)(A) of the APA, we find no reversible error and affirm.
AFFIRMED.
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OPINION
PER CURIAM:
All three of these appeals arise from challenges to the April 13, 1994 decision by the Secretaries of Agriculture and Interior to approve a plan to manage federal land with spotted owl habitat in the Pacific Northwest.
I.
In appeals nos. 95-35052 and 95-35214, Native Forest Council, Forest Conservation Council and Save the West (“the environmental plaintiffs”) appeal the district court’s grant of summary judgment upholding the United States Forest Service and Bureau of Land Management’s (“the federal defendants”) Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within Range of the Northern Spotted Owl (“ROD”), adopted April 13, 1994. The district court’s opinion is published at Seattle Audubon Society v. Lyons, 871 F.Supp. 1291 (W.D.Wash.1994) (“SAS”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the judgment of the district court.
The lengthy procedural history underlying these appeals is discussed at length in, inter alia, Seattle Audubon Soc’y v. Evans, 952 F.2d 297 (9th Cir.1991) and Seattle Audubon Soc’y v. Espy, 998 F.2d 699 (9th Cir.1993). District Judge Dwyer discusses fully the history and procedure underlying the appeals at issue here in his opinions. We need not repeat them in detail here, but will summarize briefly.
After our earlier opinions in cases in which environmental groups had sought to preserve the habitat of the northern spotted owl, President Clinton in April 1993 established the Forest Ecosystem Management Assessment Team (“FEMAT”) to examine options and make recommendations to the Secretaries of Agriculture and Interior in aid of their joint development of a forest management plan to cover federal lands in the Pacific Northwest. After reviewing 48 possible strategies, FE-MAT narrowed the field to ten alternatives and assessed each in a single environmental impact statement (“EIS”) prepared jointly by the Forest Service and the Bureau of Land Management (“BLM”). The Secretaries of Agriculture and Interior adopted Alternative 9 on April 13, 1994. These challenges to the legality of that decision followed.
The environmental plaintiffs contend that the district court erred in concluding that the federal defendants considered a reasonable range of alternatives for managing old growth owl habitat. They further contend that the federal defendants failed to comply with the viability regulation of the National Forest Management Act because the selected alternative provides for only an 80% likelihood that listed species will continue to be viable after implementation of the selected alternative, and the resulting 20% likelihood of extinction is impermissible under the regulation. 16 U.S.C. § 1604(g)(3)(B); 36 C.F.R. § 219.19. The environmental plaintiffs further contend that the district court erred in holding that the federal defendants considered adequately the cumulative environmental impacts associated with their preparation of the Environmental Impact Statement and selection of Alternative 9. See National Forest Management Act (“NFMA”), 16 U.S.C. § 1604(f)(5); National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. These contentions fail for the reasons set forth below.
We first deal with the environmental plaintiffs’ contention that the federal defendants failed to consider adequately a “no action” alternative, thereby failing to consider a reasonable range of alternatives in violation of NEPA. See 40 C.F.R. § 1502.14(d). Our review of the record leads us to conclude that the federal defendants fully evaluated a reasonable range of alternatives before making their final decision. An agency is under no obligation to consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives. See Resources Limited, Inc. v. Robertson, 8 F.3d 1394, 1401-02 (9th Cir.1993); Headwaters v. Bureau of Land Management, 914 F.2d 1174, 1180-81 (9th Cir.1990). Here, the federal defendants did consider a no harvest alternative as part of their preliminary discussion, but abandoned this alternative as inconsistent with then’ need to find a balance between competing uses. Moreover, the federal defendants’ consideration of Alternative 1, which would have protected all old growth timber (less some salvage operations) provided a reasonable point of comparison for the other nine alternatives. Accordingly, the analysis performed by the federal defendants was adequate.
There is similarly little or no support for the environmental plaintiffs’ contention that the selected alternative violates the applicable viability standards. The district court correctly explained that the selection of an alternative with a higher likelihood of viability would preclude any multiple use compromises contrary to the overall mandate of the NFMA. See SAS, 871 F.Supp. at 1315-16; see also 16 U.S.C. § 1604(g)(3)(B) (diversity is to be addressed in light of “overall multiple-use objectives”); 36 C.F.R. §§ 219.27(a)(6) (habitat maintained and improved “to the degree consistent with multiple-use objectives”); 219.26 (provide for diversity consistent with multiple-use objectives); 219.27(a)(5) (forest plans should “maintain diversity of plant and animal communities to meet overall multiple-use objectives”). Here, the record demonstrates that the federal defendants considered the viability of plant and animal populations based on the current state of scientific knowledge. Because of the inherent flexibility of the NFMA, and because there is no showing that the federal defendants overlooked any relevant factors or made any clear errors of judgment, we conclude that their interpretation and application of the NFMA’s viability regulations was reasonable. See Batterton v. Francis, 432 U.S. 416, 425-26, 97 S.Ct. 2399, 2405-06, 53 L.Ed.2d 448 (1977) (the Secretary’s interpretation of a statutory term is entitled to substantial deference).
Finally, the arguments advanced by the environmental plaintiffs concerning alleged deficiencies in the cumulative impact analysis fail because the United States Supreme Court has reaffirmed our court’s long held position that the Endangered Species Act protects listed species from harm caused by habitat modification or destruction. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, — U.S. -, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1108 (9th Cir.1988). The environmental plaintiffs insist on reading Justice O’Connor’s concurring opinion in Sweet Home as an invitation to private landowners to manage their land without regard to any obligation to avoid modifications which would harm listed species. Such a reading, however, ignores the fact that five Justices affirmed Patita in all respects. Therefore, contrary to plaintiffs’ assertions, the cumulative impact analysis reasonably assumes that non-federal land will be managed to avoid harm to threatened species. We affirm the judgment of the district court in appeals nos. 95-35052 and 95-35214.
II.
In appeal nos. 95-35215, the Northwest Forest Resource Council (“the Council”) appeals the district court’s grant of summary judgment in favor of the federal defendants on their cross-claims for declaratory relief. The district court’s order granting leave to the federal defendants to amend their answer to assert cross-claims against the Council is published at Seattle Audubon Soc’y v. Lyons, 871 F.Supp. 1286 (W.D.Wash.1994); the district court’s opinion granting summary judgment is published at Seattle Audubon Soc’y v. Lyons, 871 F.Supp. 1291 (W.D.Wash.1994). We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
The Council wishes to litigate its challenges to the plan in the District of Columbia. The Council characterizes this case as one where the district court has conspired with the United States to manipulate the Declaratory Judgment Act (“The Act”) and federal jurisdiction principles to thwart this wish by creating a novel right of review in the Western District of Washington. The Council contends that the district court lacked jurisdiction to consider the cross-claims or, if it did have jurisdiction, abused its discretion by exercising it. These contentions are untenable.
A declaratory judgment offers a means by which rights and obligations may be adjudicated in cases “brought by any interested party” involving an actual controversy that has not reached a stage at which either party may seek a coercive remedy and in cases where a party who could sue for coercive relief has not yet done so. See 28 U.S.C. § 2201; 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d, § 2751, p. 569 (“Wright & Miller ”). While the Council correctly points out that the Declaratory Judgment Act does not expand the jurisdiction of the federal courts, where jurisdiction exists, the Act is intended to allow earlier access to federal courts in order to spare potential defendants from the threat of impending litigation. See Shelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Wright, Miller & Kane, at pp. 569-570. The Act is also intended to help potential defendants avoid a multiplicity of actions by affording an adequate, expedient, and inexpensive means for declaring in one action the rights and obligation of the litigants. Id. at pp. 570-71.
Declaratory judgment actions are justiciable if “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” National Basketball Ass’n v. SDC Basketball Club, 815 F.2d 562, 565 (9th Cir.1987) (citations omitted). The cases cited by the Council are inapposite. For example, this is not a situation where a non-aggrieved government official is seeking first-time review in the Court of Appeals of a Benefits Review Board’s decision regarding a third party’s entitlement to statutory benefits, as was the case in Dir. Office of Workers’ Compensation Programs, DOL v. Newport News Shipbuilding and Dry Dock Co., — U.S. -, -, 115 S.Ct. 1278, 1283-85, 131 L.Ed.2d 160 (1995). Instead, this situation is more akin to that presented in United States v. Com. of Pa. Dept. of Envir. Resources, 923 F.2d 1071, 1074-75 (3rd Cir.1991). There, the State of Pennsylvania was proceeding in state court against the United States Navy seeking compliance with state environmental laws. The Navy raised sovereign immunity as a defense in the state action and simultaneously filed a declaratory judgment action in the district court. The issue on appeal was not whether the district court had jurisdiction over the Navy’s action, but whether it abused its discretion by declining to exercise it. The Third Circuit held that the district court should have exercised jurisdiction under the Declaratory Judgment Act to resolve the dispute. Id. at 1079. Here too, in the context of an ongoing lawsuit and in the face of duplicative legal challenges brought in a different forum, the United States simply cross-claimed within the ongoing proceeding for a judgment affirming the defenses it would otherwise be forced to offer for a second time in the duplicative action.
Nothing in the Act bars a federal agency from seeking declaratory relief. Instead, the question is whether the district court would have had jurisdiction to hear a coercive action brought by the declaratory judgment defendant. NBA, 815 F.2d. at 566. The answer here is obviously yes. The Council has been a long time intervenor in the underlying action, vigorous in its opposition to the successive forest management plans. Although never dismissed from the action underlying these appeals, the Council nevertheless filed additional actions in the District of Columbia challenging the 1994 forest management plan. Thus, not only could the Council have filed a coercive action in the district court against the Secretaries of Agriculture and Interior, it actually did.
Here, the district court was presented with a substantial controversy arising under federal law between parties with adverse interests surrounding a plan designed to bring some much needed coherence to the management of federal forests in the Pacific Northwest. This controversy presented concrete legal questions in the context of the federal defendants’ real and reasonable apprehension that unless the Council’s claims were litigated within a single proceeding, they faced the likelihood of confusion caused by differing judgments or, at least, the uncertainty and expense associated with proceeding later in another forum. In fact, both Judge Dwyer in the Western District of Washington and Judge Jackson in the District of Columbia specifically noted that the actions proceeding in both forums were substantially similar, and although unable to transfer venue in the cases arising from the Oregon dispute, Judge Jackson stayed proceedings in his court to “prevent a duplica-tive waste of judicial resources and prevent the award of potentially inconsistent relief by separate courts.” SAS, 871 F.Supp. at 1288; Northwest Forest Resource Council v. Thomas, CV-94-1032 (TPJ) (D.C.C. June 30, 1994) (order transferring action to W.D. Wash.); Northwest Forest Resource Council v. Dom-beck, CV-94-1031 (TPJ) (D.C.C. June 30, 1994) (order staying proceedings).
Because the resolution of the Council’s claims against the federal defendants in a single action was both possible and desirable, the district court did not abuse its discretion by exercising jurisdiction to grant relief. We therefore affirm the judgment of the district court in the Council's appeal no. 95-35215.
AFFIRMED.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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DIANE P. WOOD, Circuit Judge.
Although this environmental case has been pending since 1989, during most of its life it has languished in the court. In the meantime, not surprisingly, the conditions about which the citizen plaintiffs originally complained have changed, perhaps substantially. It began when the Atlantic States Legal Foundation filed it as a citizen suit under the Federal Water Pollution Control Act (or Clean Water Act), 33 U.S.C. § 1365, seeking relief for past violations of National Pollutant Discharge Elimination System (NPDES) permits by the Stroh Die Casting Company in Milwaukee. Believing the statutory notice that Atlantic provided to Stroh insufficient to encompass its complaint about the principal point source at issue here, and further finding that no reasonable jury could conclude that Stroh was an “intermittent or continuous” violator with respect to the two other point sources Atlantic identifies, the district court granted Stroh’s motion for summary judgment and dismissed Atlantic’s suit. In our view, the district court read Atlantic’s notice too narrowly. Furthermore, its conclusion that at the time the suit was filed Stroh was not at least an intermittent violator for one of the contested outfalls is inconsistent with the Supreme Court’s decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). We therefore reverse and remand.
I
Stroh produces zinc and aluminum castings at its Milwaukee plant. In the course of its operations, it discharges industrial wastewa-ter through various outfalls to sanitary or municipal sewers run by the Milwaukee Metropolitan Sewerage District (MMSD), which eventually empty into Lake Michigan. It also discharges “non-contact cooling water,” which is heated tap water, through storm sewers regulated by the Wisconsin Department of Natural Resources (WDNR) into the Bluemound tributary of the Menomonee River. As of November 1988, Stroh had a WDNR permit that allowed it to discharge the “non-contact cooling water” into the Bluemound, but it had no permit at all to discharge zinc- and phenol-contaminated industrial wastewater into the MMSD sanitary sewerage system.
This prompted Atlantic, an environmental organization with Wisconsin members, to send a letter on November 8, 1988 giving Stroh notice of violations of its WDNR discharge permit. (Despite the implication from its name that Atlantic had little connection with the Great Lakes, the complaint alleged that members of Atlantic resided in Wisconsin, in the vicinity of Lake Michigan, or they owned property or used Lake Michigan for recreational purposes, and thus were affected by Stroh’s discharge of pollutants into the Lake. Stroh did not challenge Atlantic’s standing to sue in any of its motions for summary judgment.) Under 33 U.S.C. § 1365(b), Atlantic had to give Stroh notice at least 60 days prior to suing it for those violations. The November 1988 notice alleged that Stroh had several times exceeded the daily maximum discharge limits for oil, grease, and biological oxygen demand 5 (BOD5) allowed under the WDNR permit for WDNR outfalls (discharge points) 1 and 3. On January 23, 1989, Atlantic filed a complaint against Stroh based on the November 1988 notice. Stroh moved shortly thereafter to dismiss Atlantic’s claims for lack of subject matter jurisdiction, claiming that it was not “in violation” of the statute at the time of suit, because it was neither a continuous nor an intermittent violator as required by Gwaltney.
Rather than submitting a brief in opposition to Stroh’s motion to dismiss, Atlantic chose on April 18, 1989, to send Stroh a second 60-day notice of intent to sue. The April 1989 notice alleged that Stroh had exceeded its máximums for zinc, phenol, oil and grease on several occasions at WDNR outfall 3. The April notice also alleged that Stroh had been discharging die casting process wastewater to the MMSD sanitary sewers since October 31, 1988, without a pretreatment discharge permit and in violation of the categorical standards of 40 CFR Chapter 464. It itemized certain specific violations at MMSD outfall 3 (not to be confused with the WDNR storm sewer outfall 3 that was the subject of the first notice) and accused Stroh of a “history of effluent standard violations.” Stroh’s own records, the notice claimed, showed that its discharges were not in compliance as of January 31, 1989, and that compliance was not expected until January 10,1990. It concluded that “[s]uch violations are known to the Discharger and may be included in future legal actions by Notifier.”
Stroh responded by obtaining an MMSD permit on July 28,1989, that authorized it to discharge die casting wastewater to MMSD sewers through Stroh’s Abcor treatment unit. At this point, the designation of outfalls becomes somewhat confusing, because the MMSD outfalls defined under the July 1989 permit were different from the identically numbered outfalls covered by the WDNR discharge permit described in Atlantic’s November 1988 notice. Stroh’s MMSD permit defined the following outfalls:
MMSD Outfalls 1.1, 1.2, and 1.3: handled discharges from the parts washer conversion coating, a three-stage washer that discharged each tank separately
MMSD Outfall 2: handled domestic waste only, unlimited under the MMSD permit
MMSD Outfall 3: handled discharge from the Abcor unit, which treated waste from die casting, mold cooling leakage, casting quench, and machining
MMSD Outfalls 4.0, 4.1, and 4.2: 4.0 was the sump pit through which wastewater from the parts washer and the deburring operation were directed; 4.1 and 4.2 were the batch discharges from the two-stage parts washer
MMSD Outfall 5: handled cooling water only, unlimited under the MMSD permit
Stroh’s MMSD monitoring summary showed that it was not able consistently to meet the discharge limitations for zinc that applied to MMSD outfall 3, as violations occurred in June 1989 and October 1989.
Meanwhile, back in the district court, nothing was happening with the lawsuit. On the assumption that the case had been settled, the district court entered an order dismissing Atlantic’s suit without prejudice on November 14, 1989, noting that it had not filed a brief responding to Stroh’s motion to dismiss and had thus waived the right to do so under the court’s local rules. Six months later, on May 7, 1990, Atlantic filed an amended complaint, which the district court accepted, reopening the case on May 8, 1990. Stroh moved to vacate the order reopening the case and to dismiss Atlantic’s amended complaint, but the court took no action on the motion for two years. On April 16, 1992, Judge Warren, before whom the case had been pending, denied Stroh’s motions. Later in 1992, both parties filed motions for summary judgment. Another four years passed, by which time the case had been transferred to Judge Randa. On March 22,1996, he granted Stroh’s motion for summary judgment dismissing the amended complaint and denied Atlantic’s motion. This time, final judgment was entered on the order of dismissal on March 26, 1996 and this appeal followed.
Time was not standing still between 1990 and 1996, however, even if the case was. On May 29, 1990, shortly after. Atlantic filed its amended complaint, Stroh wrote to the MMSD explaining why it had failed to meet the April 10,1990, deadline for starting up its wastewater treatment system. It conceded that it was not in compliance with the MMSD permit at that time, but it expressed the hope that the new system would cure the problem. Then, on July 1, 1990, something reminiscent of the game of hiding a pea under one of several cups occurred. On that date, Stroh abandoned existing MMSD outfall 3 (which was the outfall mentioned in the April 1989 notice and the MMSD permit) and re-routed its industrial process wastewater to “outfall 4,” necessitating the issuance of a modified MMSD permit in October 1990 to reflect the changes. The new outfall 4 was not the same outfall 4 that the July 1989 MMSD permit had described, however. Recall that the July 1989 MMSD permit labeled “outfalls 4.0, 4.1, and 4.2” as the sump pump from the parts washer and deburring operations and the batch discharges from the parts washer itself. By contrast, the October 1990 modified MMSD permit retroactively relabeled “outfall 4” as the sampling station located downstream of Stroh’s pretreatment system. The discharge from the Abcor unit, which had formerly gone through MMSD outfall 3, was rerouted first through the new (but as yet inoperative) wastewater treatment system, where the zinc and phenols were to be removed, and then it was to be piped to the new, single MMSD outfall 4.
Samples taken from the new outfall 4 in July 1990 showed continued violations of effluent standards for zinc, lead, and phenols. MMSD issued notices of noncompliance to Stroh relating to discharges from the new outfall 4 in October 1990, November 1990, January 1991, and June 1991. MMSD then published a notice in the Milwaukee Journal on March 29,1992, which listed Stroh as one of 15 industrial users that were in significant noneompliance with applicable effluent discharge standards during 1991.
Last, returning to the WDNR storm sewer system, Atlantic presented evidence indicating that Stroh continued to discharge non-processed water into the Bluemound tributary in violation of its WDNR permit. A Discharge Monitoring Report, whose accuracy Stroh contests, was received by the WDNR on April 16, 1992, in which Stroh reported discharging 11 milligrams per liter of oil and grease at WDNR storm sewer outfall 3 on February 6, 1992, which was 1 milligram over the per liter daily maximum allowed under its permit. Based on this contested evidence, Atlantic claims that the district court should not have dismissed its claims relating to WDNR outfalls 1 and 3.
II
Although the facts are somewhat complicated (made more so by the proliferation of outfalls that seem to have the same number until one takes a more careful look), the legal questions in this case are fairly straightforward. The first and most important question is whether Atlantic’s April 1989 notice satisfied the jurisdictional prerequisite imposed by the Clean Water Act, 33 U.S.C. § 1365(b), for Atlantic’s citizen suit about industrial discharges into the MMSD system. Within that general issue are three subsidiary points: first, was Atlantic’s April 1989 notice specific enough about the alleged violation to encompass its claims about what eventually became new outfall 4; second, was Stroh at the time suit was brought a “continuing or intermittent” violator of the Act such that Atlantic would then have been entitled to an injunction; and third, what is the effect, if any, of the long delay between the November 1989 dismissal without prejudice (on which no Rule 58 final judgment was ever entered) and the district court’s discretionary decision to accept the filing of the amended complaint in May 1990? The final question relates to the district court’s decision to grant summary judgment on Atlantic’s claims relating to WDNR outfalls 1 and 3. On these claims, Stroh concedes that Atlantic’s notice was adequate to confer subject matter jurisdiction, but it persuaded the district court that Atlantic had not presented enough evidence of violations to survive summary judgment.
A. The MMSD Claims
The Clean Water Act allows private citizens to sue any person “alleged to be in violation” of the conditions of an effluent standard or limitation under the Act or of an order issued with respect to such a standard or limitation by the Administrator of the Environmental Protection Agency (EPA) or a state. See 33 U.S.C. § 1365(a)(1). It is unlawful to discharge pollutants without any permit, see 33 U.S.C. § 1311(a); Rueth v. United States E.P.A., 13 F.3d 227, 229 (7th Cir.1993); Hoffman Homes, Inc. v. Administrator, United States E.P.A., 999 F.2d 256, 260 (7th Cir.1993), just as it is unlawful to discharge pollutants in violation of the terms of an existing NPDES permit, see 33 U.S.C. § 1342(a); see generally Arkansas v. Oklahoma, 503 U.S. 91, 105, 112 S.Ct. 1046, 1056, 117 L.Ed.2d 239 (1992) (outlining federal and state permitting scheme). Citizens may not bring suit, however, unless and until they have given 60 days’ notice of their intent to sue to the alleged violator (as well as to the Administrator and the state). 33 U.S.C. § 1365(b)(1)(A). The purpose of this notice requirement, the Supreme Court explained in Gwaltney, “is to give [the alleged violator] an opportunity to bring itself into compliance with the Act and thus likewise render unnecessary a citizen suit.” 484 U.S. at 60, 108 S.Ct. at 383. See also Citizens for a Better Environment v. Steel Co., 90 F.3d 1237, 1242 (7th Cir.1996) (explaining Gwaltney), cert. granted - U.S.-, 117 S.Ct. 1079, 137 L.Ed.2d 214 (1997). EPA regulations give further guidance on the contents of the notice, at 40 CFR § 135.3(a):
Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.
In practical terms, the notice must be sufficiently specific to inform the alleged violator about what it is doing wrong, so that it will know what corrective actions will avert a lawsuit.
In this case, Atlantic claims that its April 1989 notice clearly informed Stroh that it was complaining about Stroh’s unauthorized discharges of die casting process waste-water to the MMSD sewers. The fact that Stroh later (1) obtained a permit covering those discharges from outfall 3, and then (2) re-routed the discharges to the newly defined outfall 4 after it built its treatment facility, does not change the adequacy of the original notice. Indeed, if anything it suggests that Stroh knew exactly what Atlantic was concerned about and it was actively taking steps to address the matter. Stroh, for its part, argues that the April 1989 notice specifically mentioned MMSD outfall 3, which had been closed down by the time the amended complaint (which was the first one to raise claims about discharges into the MMSD system) was filed in April 1990. Since Stroh had never received any notice mentioning new MMSD outfall 4 as a noncomplying “point source” for purposes of the Act, it reasons that Atlantic failed to meet the jurisdictional threshold for a citizen suit.
The premise of Stroh’s argument is that the § 1365(b)(1)(A) notice must specifically identify the point source from which the allegedly offending discharge is emerging before the Act’s jurisdictional requirements will be met. It relies on Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), for this proposition, which held that compliance with the 60-day notice provision of the Act is a mandatory precondition to suit that cannot be disregarded by the district court. Hallstrom, however, said nothing about the content of the notice. It was undisputed that the plaintiffs there had given no notice at all to either Oregon’s Department of Environmental Quality or the Administrator of the EPA, both of whom are clearly entitled to notice under the statute. Stroh’s claim here is not that Atlantic failed to send its notice to one of the parties entitled to receive it; it is instead that the April 1989 notice was not specific enough to alert it to the claimed violation, and thus for purposes of new MMSD outfall 4 it was the equivalent of no notice at all.
With respect to content, Stroh argues that nothing less than a specific identification of the offending outfall would have sufficed. It finds support for this proposition in the Third Circuit’s decision in Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc., 50 F.3d 1239 (3d Cir.1995), which held that a citizen plaintiff’s initial notice of discharge violations was broad enough to encompass additional discharge violations and monitoring, reporting and record keeping violations occurring after the date of the notice letter. The claims, however, would have to be of the same “type” for this rule to hold, as the court explained:
[W]e hold that a notice letter which includes a list of discharge violations, by parameter, provides sufficient information for the recipients of the notice to identify violations of the same type (same parameter, same outfall) occurring during and after the period covered by the notice letter.
50 F.3d at 1250. The court went on to say that the citizen’s burden was “to provide sufficient information of a violation, such as an excessive discharge, so that the permit holder and the agency can identify it.” Id. at 1252. If subsequent investigation reveals a violation, then the court found that “ ‘complete compliance’ should incorporate the correction of all such interconnected violations.” Id.
We do not read the Third Circuit as establishing an inflexible rule that would require outfall-by-outfall notice in all cases. It was not faced with a case where the alleged polluter, upon receiving a notice about one offending outfall, simply redirected the stream of contaminated water to another outfall. The key to notice is to give the accused company the opportunity to correct the problem. Here, there is no question that Atlantic’s April 1989 notice sufficiently informed Stroh about Atlantic’s claim that its handling of the die casting wastewater did not comply with the statute. Stroh promptly secured a permit that covered exactly these discharges, under the outfall numbered 3 in the first MMSD permit. It began construction of a treatment facility, which it completed in June of 1990 (at least a month after the amended complaint was filed). It then re-routed the very same die casting wastewater to its newly numbered outfall 4. Moreover, it admitted in its May 29, 1990 letter to the MMSD that it was not in compliance and attempted to explain why it missed its deadline for its wastewater treatment system. These are not the actions of a company that has not received enough information for purposes of the statutory notice provisions of the Act. Nothing in the statute says that plaintiffs must refrain from filing suit when the company is attempting to take corrective action. Even though Atlantic did not file its amended complaint until well after the expiration of the minimum 60-day statutory waiting period (and thus eleven months after it could have sued), we find that the April 1989 notice satisfied the jurisdictional requirements of the statute.
Even if the notice was broad enough in scope and was timely, a second requirement for citizen suits is that the defendant must be “in violation” of a relevant standard, limitation, or order. In Gwaltney, the Supreme Court held that “[t]he most natural reading of ‘to be in violation’ is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to violate in the future.” 484 U.S. at 57, 108 S.Ct. at 381. The Court held that this language precluded the possibility of a citizen suit based on a wholly past violation; instead, the plaintiff must allege that the violations are ongoing at the time suit is brought. Justice Scalia would have gone further on the latter point and would have required the plaintiff to substantiate an allegation of an ongoing violation, if the point was contested. See Gwaltney, 484 U.S. at 69, 108 S.Ct. at 387. He agreed, however, that “[a] good or lucky day is not a state of compliance. Nor is the dubious state in which a past effluent problem is not recurring at the moment but the cause of that problem has not been completely and clearly eradicated.” Id. Furthermore, he noted, without contradiction from the majority, that “it does not suffice to defeat subject-matter jurisdiction that the success of the attempted remedies becomes clear months or even weeks after the suit is filed.” Id.
If the violation is cured at some point while the suit is pending, which for all we know may have occurred in this case, the case nevertheless does not become moot. It may be possible that the citizen plaintiffs would lose their right to an injunction, if, as the Gwaltney majority put it, “it is ‘absolutely clear’ that the allegedly wrongful behavior could not reasonably be expected to recur.” (Emphasis in original; quoting from United States v. Concentrated Phosphate Expart Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968).) In addition to injunctive relief, however, the statute provides for civil penalties under 33 U.S.C. § 1319(d), which would be recoverable for any time period in which Stroh was found to be in violation. Thus, if Atlantic adequately alleged that Stroh was either a continuous or intermittent violator at the time of suit— which we again take to be the date of the amended complaint — it has satisfied this prerequisite for suit as well. Accord Atlantic States Legal Foundation Inc. v. Tyson Foods Inc., 897 F.2d 1128, 1135 (11th Cir.1990).
Looking only at the allegations, which would be pertinent to a motion under Fed. R.Civ.P. 12(b)(6), it is easy to conclude that Atlantic adequately alleged that Stroh was “in violation” of the Act in the sense that Gwaltney used the term. For purposes of summary judgment, though, we think that the question whether the defendant was in violation at the time of the suit is one of fact. In keeping with the majority’s decision in the Supreme Court to require the plaintiff only to allege in good faith the present nature of the violation, the Fifth Circuit has concluded that the burden of coming forward with evidence to show that the plaintiffs allegation is false rests on the defendant at the summary judgment stage. See Carr v. Alta Verde Indus., Inc., 931 F.2d 1055 (5th Cir.1991). At the trial, of course, the burden of proving the ultimate violation rests on the plaintiff, because at that point the violation is an element of the substantive case rather than a jurisdictional hurdle.
We think the Fifth Circuit’s approach sensibly accommodates the Gwaltney holding and the nature of summary judgment practice. Here, Stroh made no showing that Atlantic’s allegations of the violations in connection with its discharges of die casting wastewater were not made in good faith,, and it is clear that if the notice encompasses new outfall 4, the violation had certainly not ceased by the time the amended complaint was filed.
This leaves only the effect of the various delays in this proceeding on Atlantic’s ability now to proceed with its suit. As we noted above, the delay has not made the case moot. Stroh realizes that the district court had discretion to consider whether to accept the filing of the amended complaint six months after it had dismissed the original complaint. See Fed.R.Civ.P. 15(a); Otis v. City of Chicago, 29 F.3d 1159, 1163 (7th Cir.1994). Bearing in mind both the breadth of that discretion and the fact that Stroh itself could have moved at any point after the November 14, 1989, order of dismissal for entry of a Rule 58 final judgment (but did not), we are not inclined to second-guess the district court’s handling of the case. The greater part of the delay occurred between the filing of the new motions for summary judgment in 1992 and the new district judge’s ruling in 1996. While this is certainly regrettable, Atlantic is no more responsible for this desuetude than Stroh (or the court). We therefore conclude that Atlantic is entitled to go forward on its claims relating to the discharges of die casting wastewa-ter into the MMSD sewerage system.
B. The WDNR Claims
The district court dismissed Atlantic’s claim relating to discharges at WDNR outfalls 1 and 3 because it found that a laboratory letter reporting that too much oil and grease had been discharged at outfall 3 in February 1992 was based on a faulty test. Stroh alleged that the sample result was in error, claiming that its Discharge Monitoring Report on which the excess discharge was reported had also contained the following notation: “Note: Attached lab report shows lab process error.” No such report was ever found in WDNR’s files. Stroh then submitted a letter dated May 13, 1992, from the laboratory that performed the test, which said:
As part of the method, an oil standard of known concentration is analyzed along with the samples to determine the accuracy of the analyses. The standard that was run on February 27 had a recovery of 50%. This is below our acceptance level. This could indicate that there was a problem with the 0 & G analyses that day, meaning that the results for your two samples tested that day may not be accurate.
Taking both the May letter and the lab report into account, the district court concluded that Atlantic had not met its summary judgment burden of coming forward with evidence to show that Stroh was indeed a continuing or intermittent violator of the WDNR permit covering WDNR outfalls 1 and 3.
We note initially that the record appears to be devoid of any evidence from Atlantic that relates to WDNR outfall 1. The district court therefore correctly dismissed Atlantic’s claims relating to that outfall from the case. With respect to WDNR outfall 3, the case is much closer. On the one hand, as Atlantic points out, the lab letter, taken in the light most favorable to Atlantic, implies that the flaw in the data led to an under-reporting of the actual levels of oil and grease, not to an excessive report. From that perspective, Stroh may have exceeded its permissible limits by 2 or 3 milligrams, rather than the 1 milligram that the lab found. On the other hand, Atlantic does not direct us to any other evidence in the record that suggests either continuous or intermittent violations at WDNR outfall 3. We must therefore decide whether the lab report, taken alone, is enough to defeat Stroh’s motion for summary judgment.
Bearing in mind both the court’s obligation on summary judgment to view the facts in the light most favorable to the party opposing the motion, and the legal requirement for the company to show that it had “clearly achieved the effect of curing all past violations by the time suit was brought,” Gwalt-ney, 484 U.S. at 69-70, 108 S.Ct. at 388 (Scalia, /., concurring), we think Atlantic should have been entitled to proceed on its claims regarding WDNR outfall 3. If Stroh discharged excess oil and grease into the Bluemound tributary on one occasion after the date of the suit, a finder of fact could infer that Stroh had not fully cured all past violations by the time suit was brought. It is unclear how much relief this will bring for Atlantic, if the provable violations are so sparse, but that goes to the merits of the suit, not to the jurisdictional threshold.
We therefore AffiRM the district court’s dismissal of Atlantic’s claims with respect to WDNR outfall 1, and we REVERSE and Remand for further proceedings with respect to WDNR outfall 3 and the claims regarding the die casting wastewater that was routed to new MMSD outfall 4. Each party is to bear its own costs on appeal.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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MANION, Circuit Judge,
concurring in part and dissenting in part.
Although I agree that the dismissal of Atlantic’s claims with respect to WDNR outfall 1 should be affirmed, I do not concur with the court’s reversal of the district court’s dismissal of claims with respect to outfall 3. In my opinion the court reads the notice and continuing violator requirements of the Clean Water Act, 33 U.S.C. § 1365 et seq., too broadly. Accordingly, I would affirm the district court’s dismissal of Atlantic’s claims in total.
I.
Stroh Die Casting Company manufactures zinc and aluminum castings in its Milwaukee, Wisconsin plant. The Wisconsin Department of Natural Resources (“WDNR”) has issued Stroh permits to discharge industrial waste-water through various outfalls into storm sewers which flow into Lake Michigan.
The Clean Water Act enables citizens to seek injunctive relief, civil penalties, and forfeitures (as well as attorneys’ fees) if violations of the Act are proved. Atlantic States Legal Foundation claims that Stroh violated the Act. In a November 8, 1988 letter from its law firm, Atlantic gave Stroh notice of its intent to sue in 60 days for certain purported violations of the Act, as 33 U.S.C. § 1365(b) requires Atlantic to do. In that notice, Atlantic alleged that Stroh had exceeded the daily maximum discharge limits for oil, grease, and “biological oxygen demand 5” allowed under the WDNR permit for WDNR outfalls 1 and 3. Nearly 3 months later, Atlantic filed suit against Stroh based on the notice. Pursuant to Fed.R.Civ. P. 12(b)(1), Stroh moved to dismiss Atlantic’s claims for lack of subject matter jurisdiction, arguing that Atlantic could not satisfy the requirements for a citizen suit under 33 U.S.C. § 1365(a) because any violations of the Act occurred in the past; Atlantic had failed to allege a state of continuing pollution, an impediment to recovery under the Act after Gwaltney v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57, 64, 108 S.Ct. 376, 381, 385, 98 L.Ed.2d 306 (1987).
Rather than opposing Stroh’s motion to dismiss, on April 13, 1989, again in a letter from its law firm, Atlantic sent Stroh a second 60-day notice of intent to sue. That letter alleged Stroh had exceeded the maximum allowances for zinc, total phenol, and again for oil and grease, as well as that Stroh discharged diecasting wastewater into Milwaukee Metropolitan Sewerage District (“MMSD”) sewers without a permit. As a location for this discharge, the second notice mentions only “outfall 003”; the parties agree this refers to MMSD outfall 3. Three months later, the MMSD did issue Stroh an industrial wastewater discharge permit which defined five separate outfalls and set their effluent limitations. Under that permit, Stroh continued to discharge its industrial wastewater through MMSD outfalls 1, 3, and 4. After July 1989, these outfalls were monitored, tested, and reported to the MMSD.
Because Atlantic never responded to Stroh’s motion to dismiss and thus had waived the right to do so, the district court dismissed Atlantic’s suit without prejudice on November 14, 1989. Over six months later, on May 7, 1990, Atlantic filed an amended complaint alleging the same violations noticed in the April 13, 1989 letter. The district court accepted the filing, reopening this case.
In the meantime, Stroh had been designing and installing a new wastewater treatment system for its plant. In May 1990, Stroh wrote the MMSD explaining that it had failed to comply with an April 10, 1990 deadline for completing the new system because of a personnel difficulty, late delivery of the new system from the manufacturer, and installation problems. In June 1990, Stroh completed the installation of the new system, which combined the wastewater previously discharged at MMSD outfalls 1 and 3 with that discharged at MMSD outfall 4, pumped it through an ultrafiltration unit to extract all grease and oil, then through a pretreatment system, and then discharged the water only from MMSD outfall 4. MMSD outfalls 1 and 3 were later used for expelling waste and water not limited by the permit.
On October 23, 1990, the MMSD issued Stroh a new discharge permit which reflected the new outfalls and new treatment system. The last reported exceedence at WDNR outfall 3 occurred on February 27, 1990, although a February 2, 1992 laboratory test revealed that Stroh had exceeded the 10 milligrams per liter level for oil and grease at that outfall by 1 milligram. Stroh challenged the accuracy of that test, submitting a March 1992 letter in which the laboratory admitted that their oil measurements were off by 50% that day. Atlantic responded that the lab’s admitted error could only cut in its favor— that the flaw in the data would have led to under-, not over-reporting.
When Atlantic filed the amended complaint and the district court reopened the ease, Stroh moved to vacate the court’s ruling to reopen. The district court denied that motion, and the parties filed cross-motions for summary judgment. The district court granted Stroh’s summary judgment motion, denied Atlantic’s, and dismissed Atlantic’s amended complaint.
II.
The court first concludes that the April 1989 (second) notice to Stroh satisfied the jurisdictional requirements of 33 U.S.C. § 1365(b)(1)(A). I agree with the district court that Atlantic failed to fulfill the statutory condition precedent by notifying the proper parties, including Stroh, of any alleged violations at MMSD outfall 4, and therefore that any such violations are beyond the scope of this suit.
The court concludes that “there is no question that Atlantic’s April 1989 notice sufficiently informed Stroh about Atlantic’s claim that its handling of the die casting wastewa-ter did not comply with the statute.” Ante at p. 820. It so concludes by examining Stroh’s posi-complaint actions: securing a permit that covered the discharges, constructing a new wastewater treatment facility, re-routing the dieeasting wastewater to newly numbered outfall 4, and admitting it was not in compliance in its May 1990 letter to the MMSD. Id. The court surmises that “these are not the actions of a company that has not received enough information for purposes of the statutory notice provisions of the Act.” Ante at p. 820. But “[t]he mere chronological sequence of events does not establish a causal connection.” Brennan v. United Steelworkers of America, 554 F.2d 586, 614 (Aldisert, J., dissenting).
It is undisputed that Atlantic’s first notice of intent to sue on November 8,1988 did not mention discharge into the MMSD, and that the second notice on April 13, 1989 mentions only MMSD outfall 3, not MMSD outfall 4. The April 13th letter refers to discharges of “process water into Lake Michigan via the [MMSD]” and that Stroh “has violated and continues to violate an ‘effluent standard or limitation’ by discharging die casting process wastewater to MMSD without a pretreatment discharge permit.” The letter then lists six specific examples of exceedences, each emitting from what the parties do not dispute is MMSD outfall 3. But Atlantic notified Stroh of this information when Stroh was correcting discharges from MMSD outfalls 1 and 3, not MMSD outfall 4. And Atlantic had easy access to all records of Stroh’s emissions, but made no mention of MMSD outfall 4 in this second notice, while specifically mentioning MMSD outfall 3. After specifically noticing only violations at outfall 3, it is wrong to include in this suit alleged violations at MMSD outfall 4 without notice to Stroh.
The Third Circuit more properly handled a situation similar to this. In Public Interest Research Group of New Jersey v. Hercules, Inc., 50 F.3d 1239 (3d Cir.1995), citizen plaintiffs sent out a notice of an intent to sue listing 68 discharges which allegedly occurred in violation of Hercules’ permits. Id. at 1243. As in this case, the district court held that pre-complaint discharge violations not included in the plaintiffs’ notice letter could not be included in the suit unless listed in a subsequent notice, and granted the defendant summary judgment. Id. at 1250. The Third Circuit reversed this holding, concluding that
a notice letter which includes a list of discharge violations, by parameter, provides sufficient information for the recipients of the notice to identify violations of the same type (same parameter, same outfall) occurring during and after the period covered by the notice letter.
Id. (emphasis supplied). The Hercules decision supplies a workable, bright-line rule to apply in cases such as this: violations “which are of the same type (same parameter, same outfall) as the alleged violations included in the plaintiffs’ 60-day notice letter,” id., should be deemed properly noticed.
In attempting to distinguish Hercules, my colleagues assert the Third Circuit “was not faced with a case where the alleged polluter, upon receiving a notice about one offending outfall, simply redirected the stream of contaminated water to another outfall.” Ante at p. 820. But the record does not support the metaphor that Stroh played a shell game with the regulatory authorities (and Atlantic) by constructing the new wastewater treatment. Although Stroh’s new system was installed in June 1990, three weeks after the amended complaint, it was designed from late 1989 to early 1990. During that time period only the original complaint was on file, which had been dismissed for, in effect, failure to prosecute. That complaint was based on the first notice to sue, which concerned solely WDNR outfalls 1 and 3. Further, the April 1989 notice made no mention of MMSD outfall 4. The installation of highly technical wastewater treatment equipment cost Stroh hundreds of thousands of dollars and was implemented on a schedule closely monitored by the MMSD. Its purpose was to consolidate, update, and improve Stroh’s treatment of wastewater. Stroh met with sewerage district officials concerning the two month delay in installing the new system, and explained the reasons for the delay in writing. To treat all of its wastewater through the new system, Stroh combined the three existing streams (which previously had been discharged at MMSD outfalls 1, 3, and 4) and routed them through its new system, with the treated water then discharged at new MMSD outfall 4. All of these facts lead to the conclusion that Stroh methodically and effectively addressed the problem, not that it hid the pea.
It is undisputed that MMSD outfall 4 was not a new outfall through which Stroh creatively re-routed wastewater to discharge. Stroh had operated MMSD outfall 4 as a separate and distinct outfall since July 1989, and it had separate effluent limitations since the original MMSD permit. Because reports from MMSD outfall 4 were available from July 1989 onward, Atlantic had access to the information necessary to provide Stroh, the EPA, and the WDNR with an appropriate notice of intent to sue for any violations at MMSD outfall 4. Atlantic did not do so. As the Supreme Court stated in Gwaltney, “the purpose of a notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.” 484 U.S. at 60,108 S.Ct. at 383. For a notice to fulfill its function, the violator must be told what the pollution is and where it occurred. This court should not rewrite the second notice on Atlantic’s behalf to encompass information it had the opportunity to but did not include.
The consequence of the court’s expansive reading could be catch-all notices sent to companies which, if construed broadly as the court has done here, would encompass any violation, past or future. This, of course, would undermine the dual purposes of the notice requirement: to provide governmental entities with the opportunity to begin an enforcement action before the citizen suit is filed, and to provide the alleged violator with enough information to be able to bring itself into compliance. See Hercules, 50 F.3d at 1249. In Hercules, the Third Circuit judged the sufficiency of the 60-day notice letter by “whether it accomplishes these purposes.” Id. Because the April 13, 1989 notice letter in this case could not have given the EPA, the WDNR, or Stroh notice of a lack of compliance at MMSD outfall 4, this court should exclude from this suit any violations Atlantic alleges occurred there.
III.
Even if proper notice is given, the Clean Water Act only permits a citizen to bring a civil action if a person is “in violation” of a relevant standard, limitation, or order. 33 U.S.C. § 1365(a)(1)(A). If the person charged is not “in violation,” the plaintiff does not have standing under the Act. In Gwaltney, the Supreme Court set forth a test for standing under the Act: a plaintiff must make a “good-faith allegation of continuous or intermittent violation.” 484 U.S. at 64, 108 S.Ct. at 385. This means that a citizen plaintiff does not have standing to maintain a suit for civil penalties for wholly past violations of the act. Thus, for purposes of federal subject matter jurisdiction, citizen plaintiffs are required to show “a reasonable likelihood that a past polluter will continue to pollute in the future.” Id. at 57,108 S.Ct. at 381. Justice Scalia, joined by Justices Stevens and O’Connor, concurred in Gwaltney on exactly this issue. Id. at 67, 108 S.Ct. at 386-87. To them, standing should not turn on the plaintiffs good faith, but on the objective fact of whether the defendant was “in violation.” Id. at 69, 108 S.Ct. at 387-88.
On remand in Gwaltney, the Fourth Circuit held that a citizen plaintiff may prove an ongoing violation in one of two ways:
either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of the recurrence in intermittent or sporadic violations. Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition....
890 F.2d 690, 693 (4th Cir.1989). “[Ejvery court thus far to consider this question” has adopted this test. Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1062 (5th Cir.1991).
The court decides that this case presents a fact question as to whether Stroh was “in violation” at the time of the suit (which I agree is the date of the amended complaint, May 7, 1990). It adopts the approach from Carr that “the defendant has the burden at the summary judgment stage to demonstrate that the plaintiffs allegations of a continuous or intermittent violation do not raise a genuine issue of material fact.” 931 F.2d at 1062. The court has inserted a new “fact.” Because “the [April 1989] notice encompasses new outfall 4, the violation had certainly not ceased by the time the amended complaint was filed.” Ante at p. 821.
Because no violations at MMSD outfall 4 were properly noticed, this court should not conclude that any post-complaint excee-dences at outfall 4 qualify Stroh as a continuing violator. Further, if Atlantic’s second notice is given its proper scope not to include any exceedences at MMSD outfall 4, Atlantic does not have standing to bring this suit.
It is undisputed that the last permit excee-dence at WDNR outfall 1 occurred in November 1986, 3+ years before Atlantic filed its amended complaint. At MMSD outfall 3, there has not been a permit exceedence since June 1990, and there can be none, for since that date that outfall has been used to expel non-contact cooling water, not wastewater. Stroh’s new wastewater treatment system has been permanently connected and all industrial process wastewater previously discharged at MMSD outfall 3 (which was the subject of Atlantic’s April 13, 1989 notice) is discharged at MMSD outfall 4.
Atlantic argues that there is one reported exceedence at WDNR outfall 8 which was based on a faulty lab test, and that this should preclude summary judgment. Even if Atlantic is correct that any error in the lab test cuts in its favor, it has not met its burden to show that Stroh was an “ongoing or intermittent violator” at WDNR outfall 3. If those terms mean anything, they require more than the single 1 mg per liter oil excee-dence identified by Atlantic. Only stretching “ongoing” and “intermittent” beyond their breaking point could a court conclude from a single, heavily disputed exceedence in February 1992 that Stroh is currently “in violation” of the Clean Water Act. Cf. Public Interest Research Group of New Jersey v. Yates Industries, Inc., 757 F.Supp. 438, 447, modified on other grounds, 790 F.Supp. 511 (D.N.J. 1991) (permit holder may avoid liability at summary judgment if data in laboratory report presents direct evidence of inaccuracies). Even if Atlantic is correct that there was an exceedence in February 1992, according to the concurrence in Gwaltney, 484 U.S. at 69, 108 S.Ct. at 387-88, Atlantic must demonstrate that Stroh is in fact in violation of the Act. It should take more than an admittedly faulty lab result to satisfy this burden.
This case presents neither of the circumstances the Fourth Circuit recognized on remand in Gwaltney would prove an ongoing violation. It is undisputed that before Atlantic’s notices, there were exceedences at WDNR outfall 3 and unauthorized discharge of diecasting wastewater into sewers. Between the second notice and the amended complaint, Stroh obtained a comprehensive and demanding MMSD permit concerning its wastewater discharge. It also designed and built at its own great expense an entirely new MMSD wastewater processing facility which was put into place less than a month after Atlantic filed the amended complaint. Properly confining our review to noticed outfalls since the date of the amended complaint, there was a single, disputed excee-dence of 1 milligram of oil at one outfall, the finding for which was in an admittedly erroneous lab report. These facts show Stroh “cleaned up its act,” and is not reasonably likely to pollute in the future. The court’s expansive reading of the “in violation” requirement places an unreasonable burden on the company. Under Gwaltney, Stroh simply does not qualify as an “ongoing violator.”
IV.
I concur that the dismissal of Atlantic’s claims with respect to WDNR outfall 1 should be affirmed, but I would dismiss the claim with regard to WDNR outfall 3 as well due to Atlantic’s lack of standing.
For all of these reasons, I would affirm the opinion of the district court in full.
. This court clearly recognized this in Citizens for a Better Environment v. Steel Co., 90 F.3d 1237 (7th Cir.1996). That case discussed how the Supreme Court in Gwaltney interpreted the present tense language of the Clean Water Act to bar suits for past violations, and how such suits would render the Act's statutory notice provision meaningless. Id. at 1242-43.
. As the court recognizes, given that Stroh has had the new wastewater treatment system in place since June 1990, what truly may be at issue in this case is substantial attorneys' fees.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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MERRITT, Circuit Judge.
This is an environmental case concerning “wetlands” and the jurisdiction of the United States Army Corps of Engineers over them. The government claims that defendants, Riverside Bayview Homes, Inc., and Allied Aggregate Transportation Company, violated section 301(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1311(a) (1976), and regulations concerning “wetlands” purportedly issued under that Act. The claimed violation occurred when the defendants deposited fill material on Riverside’s land, which the government asserts is a “wetland,” without obtaining a permit from the Corps of Engineers as required by the Act. Judge Cornelia Kennedy, sitting as a District Judge, issued a permanent injunction prohibiting further filling on a large portion of Riverside’s property and a declaratory judgment holding one of the Corps regulations unconstitutional. Both parties then appealed.
On the first appeal, 615 F.2d 1363 (6th Cir.1980), this Court remanded the case for further proceedings in the District Court in light of a new regulation promulgated by the Corps. That regulation, found at 33 C.F.R. § 323.2(c) (1983), specifically altered the definition of “wetlands” relied upon by Judge Kennedy in the original District Court proceeding. We conclude that the District Court on remand erred in interpreting the new definition of wetlands to include defendant’s property and in continuing the permanent injunction under the new regulation. We also vacate as moot the declaratory judgment issued by the District Court in the first proceeding.
I. THE LAND IN QUESTION
Riverside owns approximately eighty acres of undeveloped land north of Detroit in Harrison Township, Michigan, which it had planned to develop for housing. It is located in a suburban area approximately a mile west of Lake St. Clair and south of .South River Road, roughly paralleling the Clinton River. Its southern boundary is separated from the man-made Savan Drain by two ten-acre parcels. Its western boundary is formed by Jefferson Avenue, a heavily travelled road.
Riverside’s property comprises one sixty-acre parcel and a partially adjoining twenty-acre parcel. The sixty acres running along Jefferson Avenue were actively farmed in the past. In 1916, the sixty-acre tract was platted as a subdivision, and storm drains and fire hydrants were installed. The remaining twenty-acre parcel was neither platted nor improved. In the early and mid-1950’s, some efforts were made by the owner to develop the platted subdivision. In 1960, the newly-formed Riverside Corporation bought the property. According to Riverside, its efforts to develop the property along with the surrounding area during the 1960’s were stymied by an adjacent property owner who blocked an effort to reroute a street dissecting the property, and by a local zoning, ordinance which forced it to fill the property to a specific elevation.
In 1973, unprecedented high water levels on the Great Lakes, including Lake St. Clair, located a mile east of the Riverside land, prompted emergency action by Harrison Township and the Corps of Engineers to protect area homes and businesses from water damage. Emergency measures included building a semicircular dike which dissected the twenty-acre parcel and extended southeast across the sixty-acre tract, and filling a ditch along Jefferson Avenue with dirt, thereby destroying the drainage on the western border of the property.
In furtherance of its development plans, Riverside contracted with Allied Aggregate Transportation Company in the fall of 1976 to have dirt fill hauled to the property. It was unclear whether or not the land would be subject to the Corps’ regulatory jurisdiction. Accordingly, a Riverside stockholder met with Corps personnel to discuss whether a permit must be obtained in order to proceed with filling the land. Riverside submitted an incomplete application for a permit in November, 1976.
Before the permit application had been acted on by the Corps, Riverside began placing fill on the property north of the dike. On December 22, 1976, Riverside was ordered by the Corps to cease and desist from further filling. When Riverside continued to fill, the Corps asked the United States Attorney to bring this enforcement proceeding.
On January 7, 1977, the District Court entered a temporary restraining order prohibiting Riverside and Allied from engaging in further filling, pending a full evidentiary hearing. After that hearing, which encompassed seven days of testimony, Judge Kennedy issued an opinion granting the government’s motion for a preliminary injunction. Judge Kennedy also held unconstitutional a Corps regulation requiring the processing of an application for a permit to be postponed once the United States Attorney has begun enforcement proceedings. On June 20, 1979, the District Judge issued the court’s final judgment holding a large portion of Riverside’s land to be a wetland subject to Corps regulation under the Federal Water Pollution Control Act. Judge Kennedy permanently enjoined further filling on that portion of the property until the Corps issues a permit to Riverside. At the same time, she issued an order holding defendants in contempt of court because they had continued to fill the property. The defendants were ordered to remove the fill, which they have apparently done. Since that time, Riverside’s application for a Corps permit has been processed and denied.
II. THE WETLANDS DETERMINATION
A. Statutory and Regulatory Background
The Federal Water Pollution Control Act was enacted to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1976). The Act declares that “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” Id. § 1251(a)(1). Section 301 of the Act states that, except as permitted under certain exceptions, “the discharge of any pollutant by any person shall be unlawful.” Id. § 1311(a). One of the express exceptions to this rule is contained in section 404, 33 U.S.C. § 1344, which authorizes the Corps to issue permits for the disposal of dredged or fill materials into “navigable waters.”
The Act contemplates that applications for section 404 permits are to be evaluated by the Corps under regulations developed jointly by the Environmental Protection Agency and the Corps. See id. § 1344(b); 40 C.F.R. § 230 (1983). These regulations are supposed to identify the factors to be used in determining whether filling will have an adverse impact on water quality.' A person who fills or otherwise discharges pollutants into “navigable waters” without a permit subjects himself to civil or criminal penalties. See 33 U.S.C. § 1344(h)(1)(G) (violations of permit program entail “civil and criminal penalties and other ways and means of enforcement”).
The “navigable waters” which the Federal Water Pollution Control Act was meant to protect are defined in the Act as “the waters of the United States, including the Territorial seas.” Id. § 1362(7). The Act does not mention or define “wetlands.” The Corps and the EPA, however, developed regulations pursuant to the Act covering areas denominated as “wetlands” as well as the congressionally specified “navigable waters.” These regulations, including the permit procedures noted above, seek to prohibit tampering with wetlands without the express permission of the agencies.
B. The Wetlands Definition
At the time that this action was initially brought, the Corps regulation defined wetlands and provided that a permit must be obtained for filling of
Freshwater wetlands including marshes, shallows, swamps and similar areas that are contiguous or adjacent to other [sic] navigable waters and that support freshwater vegetation. “Freshwater wetlands” means those areas that are [1] periodically inundated and that [2] are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.
33 C.F.R. § 209.120(d)(2)(i)(h) (1976) (emphasis added).
The question before the District Court in the initial proceeding was whether the Riverside land possessed the characteristics set forth in the above definition and thus should be classified as a wetland subject to the Corps’ regulatory jurisdiction. Judge Kennedy found that the land was contiguous to a navigable water, Black Creek, which is a tributary of Lake St. Clair. Furthermore, she found that because of the type of soil found on the land, the unfilled Riverside property was “characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.” These two aspects of the wetlands definition having been satisfied, the District Court focused on the question of whether the land was “periodically inundated.”
Judge Kennedy’s resolution of this issue was based on what she admitted was an unavoidably “arbitrary” interpretation of the term “periodic” as it is used in the Corps regulation. She accepted the standard dictionary definition, “flooded,” as the meaning of “inundated,” but was compelled to rely on a rough statistical plotting of the potential for flooding of the Riverside land in order to determine whether it was “periodically inundated,” or flooded on a “periodic” basis.
Judge Kennedy found that the Riverside land was rarely if ever inundated. From testimony concerning Lake St. Clair which established that a water level of 575.0 feet would be reached or surpassed only about two percent of the time, she concluded that it was difficult to ascertain whether the Riverside land south and east of the contour line of 575.5 feet was ever flooded. She explained:
The mean of the elevations on the south and east of defendants’ property is 574.6, ranging from 575.70 to 574.45. Using the monthly mean level of Lake St. Clair ... and adding six inches, the normal variation, it is immediately apparent that there have been long periods of time when none of the property was inundated by water from contiguous or adjacent navigable waters. Indeed, this has been true most of the time.
Opinion and Order Granting Motion for Preliminary Injunction in Part at 6 (emphasis added). Judge Kennedy noted that the high-water levels in the period from 1973-75 were unprecedented. From this and other statistical information, she extrapolated that “there have been periods in only 14 of the 80 years of recorded lake levels in which the monthly mean inundated the property, — or, 17% of the time,” and that “[s]ome of the higher elevations have been inundated only during the last recent unprecedented high water or have never been inundated.” Id. (emphasis added).
Despite these misgivings, Judge Kennedy found that there was sufficient evidence from which to conclude that the land had been “inundated.” Accordingly, she then turned to the question of whether that inundation was “periodic,” observing that “[t]he Court is left in the unenviable position of having to define ‘periodic’ without knowing the reason for the adoption of this standard.” Id. at 7. She found that the Riverside land at the contour line of 575.5 feet above sea level had been inundated on four to six occasions in the past eighty years. Acknowledging that there was no precedent for her analysis, Judge Kennedy reasoned:
If treating the years 1972-1975 and 1952-1953, as one occurrence, then the lake levels have exceeded 575 feet only four times (1928, 1952-1953, 1969 and 1972-1975). If the level of 574.9 feet were to be considered, the number of occurrences would increase to six ... [I]t is clear that determining the level at which the inundation would be considered “periodic” is difficult and perhaps somewhat arbitrary. The Court must choose the point at which an occurrence became periodic.. It has selected more than five. It therefore determines that the appropriate level is 575 feet, plus the half-foot of normal monthly fluctuation [of the mean high water level , of Lake St. Clair] above the mean.
Id. On this basis, the District Court enjoined Riverside from placing fill below the 575.5 foot contour line without first obtaining a Corps permit. Under this ruling, some eighty percent of the land was denominated as a “wetland,” and therefore was not usable as contemplated by the landowner without the government’s permission.
In 1977, after Judge Kennedy’s initial permanent injunction was issued, the Corps wetlands definition on which the ruling was based was repealed and replaced. Wetlands are now defined as
those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.
33 C.F.R. § 323.2(c) (1983).
In the preamble to the new regulations, the Corps explained that the wetlands definition had been changed “to eliminate several problems and achieve certain results.” The reference to “periodic inundation” was deleted because
[m]any interpreted that term as requiring inundation over a record period of years. Section 404 is intended to regulate discharges of dredged or fill material into the acquatic.system as it exists, and not as it may have existed over a record period of time.
42 Fed.Reg. 37128 (July 19, 1977) (emphasis added). The preamble goes on to indicate that the new definition “pertains to an existing wetland and requires that the area be inundated or saturated by water at a frequency and duration sufficient to support aquatic vegetation.” Id.
For similar reasons, the Corps also eliminated the term “normally” in the wetlands definition, replacing it with the phrase, “and that under normal circumstances do support.” The preamble notes that the term “normally” was used in the original version of the definition “to respond to those situations in which an individual would attempt to eliminate the permit review requirement of Section 404 by destroying the aquatic vegetation, and to those areas that are not aquatic but experience an abnormal presence of aquatic vegetation.” Id. (emphasis added). Significantly, the preamble notes that it is still the case under the new regulation that “[t]he abnormal presence of aquatic vegetation in a non-acquatic area would not be sufficient to include that area within the Section 404 program.” Id.
III. APPLICATION OF WETLANDS REGULATIONS TO FACTS
The changes in the Corps wetlands definition meant that the task before Judge Gilmore was essentially that of applying this new definition to the facts as found by Judge Kennedy in the earlier proceeding to determine whether the Riverside property below the elevation of 575.5 feet above sea level is or is not a wetland. Our order remanding this case to the District Court for further examination in light of the new regulation did not make the nature of the inquiry clear, however. We did not point out to Judge Gilmore precisely what we expected him to do.
We should have directed the District Court to consider the voluminous evidence from the seven days of testimony given earlier and to make a finding as to whether the Riverside property to the south and east of the contour line of an elevation of 575.5 feet, as it exists now, should be classified as a wetland. Instead, in the absence of clear directions, the District Judge on remand simply found from a commonsense reading of the new language that the amended regulation was “broader than its predecessor.” Presumably, his reasoning from there was that, since Judge Kennedy had found that the property was “periodically inundated,” and since it does support some aquatic vegetation, it must therefore be inundated “at a frequency and duration sufficient to support, and that under normal circumstances [does] support” wetlands vegetation.
It does not necessarily follow, however, that because an area has been flooded five times in more than eighty years that, “as it exists” now, it is “inundated at a frequency and duration sufficient to support and that under normal circumstances [does] support” wetlands vegetation. The new regulation makes clear that it is the present occurrence of inundation or flooding sufficient to support wetlands vegetation, not the mere presence of such vegetation from some other cause, that determines whether a particular area is a wetland. Thus, as we understand it, the presence of inundation on the land “as it exists” now, sufficient to cause the growth of aquatic vegetation, is necessary to satisfy the wetlands definition. Neither inundation nor aquatic vegetation would be sufficient, standing alone, to bring a piece of land within the definition. Both must be present, and the latter must be caused by the former.
Were this not so, then areas which inexplicably support some species of aquatic vegetation, but which are not normally inundated, would fall within the wetlands definition. Such a perverse result could not have been what the Corps contemplated in promulgating the regulation. Indeed, as noted earlier, the Corps expressly adverted to the situation of “areas that are not aquatic but experience an abnormal presence of aquatic vegetation” and emphasized that such lands were not intended to be covered by the regulations.
Turning now to the facts as found by Judge Kennedy, and applying our interpretation of the new wetlands definition to those facts, we conclude that the Riverside land is not a wetland. We note at the outset that Judge Kennedy did not find that the land, “as it exists” now, is inundated. Nor is there evidence in the record to support such a finding. After examining the evidence, Judge Kennedy found that the land had only been flooded on four to six occasions in the eighty years of recorded history of the area. Although flooding of such infrequency might properly be called “periodic,” it cannot fairly be said that it describes the land “as it exists.”
Judge Kennedy did find that, quoting from the old regulation, the Riverside land was characterized “by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.” Significantly, however, she found that the source of this vegetation was the type of soil found on the property and not the few instances of flooding. The evidence supports her determination that the infrequent inundation caused by the adjacent navigable water, Black Creek, was not the cause of the wetland vegetation. Thus she did not find, and on the evidence presented could not have found, that the land, as it exists now, is “inundated at a frequency and duration sufficient to support, and that under normal circumstances [does] support” the wetlands vegetation. Nor did she consider or make any findings concerning the question whether the Riverside land fits the Corps definition of an area which is technically not a wetland, because it is not inundated, but which experiences an abnormal presence of aquatic vegetation.
In the absence of evidence that the property as it exists now is frequently flooded and that the flooding causes aquatic vegetation to grow there, the government’s case is insufficient to justify a classification of this property as a wetland subject to the jurisdiction of the Corps of Engineers. The injunction is therefore vacated.
IV. NARROW INTERPRETATION OF “WETLANDS” REGULATION NECESSARY
In deciding that the District Court erred on remand in failing properly to assess the impact of the new wetlands definition upon Judge Kennedy’s earlier wetlands determination, we construe the regulation containing the definition somewhat narrowly in order to avoid serious questions concerning the validity of the definition itself under the Act. In delegating authority to the Corps under the Federal Water Pollution Control Act, Congress defined the subject matter intended to- be protected by the statute as the “navigable waters.” Section 502(7) defines “navigable waters” as “waters of the United States including the Territorial seas.” The language of the statute makes no reference to “lands” or “wetlands” or flooded areas at all.
Congress may, indeed, have meant to extend the protections of the Act beyond the straightforward definition it provided of “navigable waters.” The question, however, is how far away from “navigable waters” Congress contemplated that the regulations under the Act could drift. It is certainly not clear from the statute that the Corps’ jurisdiction goes beyond navigable waters and perhaps the bays, swamps and marshes into which those navigable waters flow. Neither is it clear that Congress intended to subject to the permit requirement inland property which is rarely if ever flooded. Nor is it clear that the statute was intended to cover a piece of property a mile inland from Lake St. Clair which has been farmed in the past and is now platted and laid out for subdivision development with the fire hydrants and storm sewers already installed.
To prohibit any development or change of such property by the landowner raises a serious taking problem under the fifth amendment. It is well established that government regulation can effect a fifth amendment taking. The rationale, as stated by Justice Brennan, is that “[pjolice power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property.” San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 652, 101 S.Ct. 1287, 1304, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting). Recently, in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), the Supreme Court addressed a problem markedly similar to this one and declared:
Although the Government is clearly correct in maintaining that the now dredged Kuapa Pond falls within the definition of “navigable waters” as this Court has used that term in delimiting the boundaries of Congress’ regulatory authority under the Commerce Clause, ... this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation.
Id. at 172, 100 S.Ct. at 388 (citations omitted). In Kaiser Aetna, the Supreme Court found that the government’s attempt to create a public right of access to a pond which was improved so as to be capable of supporting navigation but had always been considered private property “goes so far beyond ordinary regulation or improvement for navigation as to amount to a taking ____” Id. at 178, 100 S.Ct. at 392 (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). The Court found the Kaiser Aetna petitioners’ interest in their dredged marina-style subdivision community which included Kuapa Pond “strikingly similar” to that of owners of fast land adjacent to navigable water, like Riverside, noting that there was no doubt that “when the Government wishe[s] to acquire fast lands, it [is] required by the Eminent Domain clause of the Fifth Amendment to condemn and pay fair value for that interest.” Id. at 177, 100 S.Ct. at 391. The Court concluded:
[I]f the Government wishes to make what was formerly Kuapa Pond into a public aquatic park after petitioners have proceeded as far as they have [in developing it as a private subdivision] it may not, without invoking its eminent domain power and paying just compensation, require them to allow free access to the dredged pond while petitioners’ agreement with their customers calls for an annual $72 regular fee.
Id. at 180, 100 S.Ct. at 393,
The parallels between Kaiser Aetna and this case are obvious and hardly require elaboration. We note only that we see a very real taking problem with the exercise of such apparently unbounded jurisdiction by the Corps, a problem we avoid by construing the regulation containing the amended wetlands definition as limited to lands such as swamps, marshes, and bogs that are so frequently flooded by waters from adjacent streams and seas subject to the jurisdiction of the Corps that it is not unreasonable to classify them as lands which frequently underlie the “waters of the United States.” See 2A Sutherland On Statutory Construction § 45.11, at 33-34 (C. Sands ed. 1973) (discussing presumption of constitutionality of statutes).
Accordingly, we interpret the words “inundated at a frequency and duration sufficient to support, and that under normal circumstances [does] support [wetlands vegetation]” as set forth in the amended regulation to require frequent flooding by waters flowing from “navigable waters” as defined in the Act. The definition thus covers marshes, swamps, and bogs directly created by such waters, but not inland low-lying areas such as the one in question here that sometimes become saturated with water.
V. THE DECLARATORY JUDGMENT
During the two and one-half years of litigation of the issue of the Corps’ jurisdiction over Riverside’s property, the Corps declined to process an application for a permit to fill the area in question. The agency was precluded by regulation from acting on Riverside’s application because the United States Attorney had initiated enforcement proceedings after it was discovered that Riverside was engaged in unauthorized filling. The Corps regulation provides:
If the District Engineer refers a case to the local U.S. Attorney or if criminal and/or civil action is instituted against the responsible person for any unauthorized activity, the District Engineer shall not accept for processing any application for a Department of the Army permit until final disposition of the referral action and/or all judicial proceedings, including the payment of all prescribed penalties and fines and/or completion of all work ordered by the court. Thereafter, the District Engineer may accept an application for a permit; provided, that with respect to any judicial order requiring partial or total restoration of an area, the District Engineer, if so ordered by the court, shall supervise this restoration effort and may allow the responsible persons to apply for a permit for only that portion of the unauthorized activity for which restoration has not been so ordered.
33 C.F.R. § 326.4(e) (1982) (current version as amended at 33 C.F.R. § 326.3(c)(3) & n. 2 (1983)).
Riverside asked the District Court in the initial enforcement proceeding to issue a declaratory judgment declaring this regulation to be unconstitutional as a de facto taking of Riverside’s property. In a memorandum opinion, Judge Kennedy held that the postponement of processing of Riverside’s application for a permit under the regulation “effect[s] a quasi-taking of property unless and until a person relinquishes any right the person may have to engage in litigation with the Corps of Engineers.” Opinion of the Court at 9. Moreover, Judge Kennedy held that the deferral was a sanction unauthorized by the section of the Federal Water Pollution Control Act which gives the Corps the authority to promulgate regulations to carry out its functions. Id.
Judge Kennedy interpreted the regulation as denying defendant “the right to litigate the constitutionality of a statute or regulation on peril of losing its rights to pursue its administrative adjudication remedies.” See id. Apparently, she understood the regulation to compel the defendant to choose between litigating his claim that the regulation effects an unconstitutional taking of his property, and proceeding with his application for an after-the-fact permit which, if granted, would enable him to continue with his development project.
Riverside’s opposition to the regulation postponing the permit process cannot alter the fact that nothing in the regulation now adversely affects its interests. We construed the Corps wetlands definition narrowly and concluded that Riverside’s property is not a wetland and that, therefore, the Corps has no jurisdiction over it. Riverside is now free to develop its land as it wishes. Moreover, the challenged regulation has since been amended to suggest a strong presumption in favor of processing applications for after-the-fact permits. See 33 C.F.R. § 326.3 & n. 2 (district engineer shall accept application for after-the-fact permit for unauthorized filling unless state or local enforcement action is pending, and “[tjhis exception to the general rule of accepting after-the-fact applications should be used on a limited basis, only for those cases which merit special treatment”). Therefore, the question is moot.
The problem before us clearly is not “capable of repetition, yet evading review.” See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969) (case concerning burden placed on nomination process for statewide office was not moot but was “capable of repetition, yet evading review,” because same restriction on plaintiff’s candidacy that had adversely affected him in 1968 could do so in 1972 election); International Longshoremen’s and Warehousemen’s Union v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954) (declaratory judgment vacated because questions of scope and constitutionality of legislation must not be decided “in advance of its immediate adverse effect in the context of a concrete case.”). We should not pass unnecessarily on the constitutionality of the Corps regulation. The declaratory judgment of the District Court is therefore vacated and the claim dismissed.
APPENDIX
. For a pictorial depiction of the property, see the Appendix to this opinion.
. The term "Territorial seas” is defined as "the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.” Id. § 1362(8).
. There was evidence adduced during the evidentiary hearing which strongly indicated that the Riverside land may fit within this category of land which is "not aquatic but experience[s] an abnormal presence of aquatic vegetation.” Not only was the land farmed for many years, it has been established that there are many species of vegetation growing there now that could not be classified as purely wetlands vegetation. For example, it is significant that on cross-examination by Riverside’s attorney, the government’s main witness admitted that the "only positive knowledge” he had about the vegetation on the land was that there were cattails. See Government’s App. at 75. Furthermore, this witness testified that in addition to cattails, phragmites, marsh grasses and other wetland-type vegetation, he discovered ash, red maple, cottonwood, and sedge on the property. He admitted that these were not necessarily wetland-type vegetation. We do not find that Judge Kennedy’s finding that there was a "prevalence” of wetland-type vegetation on the property was clearly erroneous; rather, we simply note that her finding to that effect was based on the old regulation and did not go to the issue of whether the presence of wetland-type vegetation on the land was "abnormal" in the sense that it was supported not by inundation but by unusual soil conditions.
. We note that the Fifth Circuit has recently held that the Corps’ wetlands definition is consistent with the intent of the Federal Water Pollution Control Act. See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983).
. Exhibit A, Defendant’s Memorandum of Law, United States v. Riverside Bayview Homes, Inc., No. 770041 (E.D.Mich.1977).
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On Rehearing
No member of the Court having moved for en banc consideration of this case and the panel being of the view that reconsideration is not warranted, the government’s petition, as supported by amicus curiae organizations, is hereby denied.
By an unusual construction of the words “navigable waters” in the Clean Water Act, the government and organizations filing as amicus curiae would apparently have the Court by injunction prevent the owner from using low lying land areas where water sometimes stands and where vegetation requiring moist conditions grows. Such low lying lands would be converted into “navigable waters” by the Court without regard to either their proximity to navigable waters, streams or seas or the inundation of such lands by such navigable waters. Under such a construction low lying backyards miles from a navigable waterway would become wetlands. Neither the government nor amicus suggests an adequate limiting principle. Such a construction is overbroad and inconsistent with the language of the Act in question, and the Court declines to adopt such a construction.
ENTERED BY ORDER OF THE COURT.
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SELYA, Circuit Judge.
This litigation has its genesis in a waste management scheme devised by the town fathers of Houlton, Maine (the Town). The appellants claim that Houlton’s plan — • under which the Town by contract designated a single firm as the exclusive hauler of residential waste within its borders, and enacted a flow-control ordinance directing all such waste either to be collected by that firm or to be brought to its transfer station — violates the Commerce Clause, the Takings Clause, the Contract Clause, and the town charter. The district court rejected these importunings. We affirm the judgment below (with a slight modification), but our reasoning differs from the district court’s in respect to the principal bone of contention — the Commerce Clause challenge.
I. BACKGROUND
As in many small towns across the nation, Houlton residents traditionally dealt with solid waste by depositing it in the town dump or engaging others to do so. On October 17, 1995, state environmental authorities closed the dump. In order to remain compliant with state law, the Town needed to fashion a new way for its residents to deal with solid waste. It thereupon issued a request for proposals (RFP), conducted an open competitive bidding process that resulted in the selection of a local firm (Andino, Inc.) as its exclusive contractor, agreed to provide that firm with a guaranteed trash quota for seven years, and enacted a flow-control ordinance (the 1995 Ordinance) that required all residential solid waste generated within the town limits to be taken to a local transfer site operated by Andino.
In New England, change does not come easily. Asserting that the 1995 Ordinance violated the Commerce Clause, David Con-don, a trash disposal operator, sued Andi-no and the Town. The federal district court preliminarily enjoined enforcement of the 1995 Ordinance, see Condon v. Andino, Inc., 961 F.Supp. 323, 331-32 (D.Me.1997), and the Town folded; instead of litigating to the bitter end, it revised the law and enacted a new ordinance (the 1997 Ordinance) that put a somewhat different waste management system into effect.
The new plan has two components. The first is the 1997 Ordinance itself. The ordinance requires all generators of residential rubbish within the Town either to use Houlton’s chosen contractor to transport their trash, or to haul it themselves. See 1997 Ordinance § 10-507. Although the Town’s contractor is permitted to dispose of collected trash at any proper disposal site, residents who choose to self-haul are required to take their refuse to a repository designated by the Town Council. See id. § 10-504. The ordinance provides fines and other penalties for noncompliance. See id. § 10-503.
The contract between Andino and the Town constitutes the new scheme’s second component. The previous contract between these parties had included, inter alia, a failsafe clause whereby the Town agreed to negotiate with Andino in good faith to keep it as the Town’s contractor if a court of competent jurisdiction held the 1995 Ordinance invalid or unenforceable. Purporting to honor its commitment to renegotiate, the Town implemented the 1997 Ordinance by supplementing and amending the preexisting contract, granting Andino the exclusive right to collect third-party residential waste under the 1997 Ordinance, and designating its transfer station as the disposal site for self-haulers.
These modifications did not placate those who yearned for simpler times. Four plaintiffs combined to sue the Town in federal district court. They included Condon, two other local trash haulers (William Faulkner and Fred Spellman), and the Houlton Citizens’ Coalition (HCC), an unincorporated nonprofit association formed by Houlton residents. Invoking federal question jurisdiction, 28 U.S.C. § 1331' — there is no other readily apparent jurisdictional basis — the plaintiffs challenged the 1997 Ordinance under, inter alia, the Commerce Clause, the Takings Clause, and the Contract Clause. They also appended a supplemental state-law claim under the town charter. The district court rebuffed their attempt to restrain implementation of the 1997 Ordinance pen-dente lite, concluding that the plaintiffs were unlikely to prevalí on the merits. See Houlton Citizens’ Coalition v. Town of Houlton, 982 F.Supp. 40, 46 (D.Me.1997) (HCC I). The court subsequently granted summary judgment for the Town on the four claims with which we are concerned. See Houlton Citizens’ Coalition v. Town of Houlton, 11 F.Supp.2d 105, 112 (D.Me.1998) (HCC II). This appeal followed.
II. STANDING
Before we consider the appellants’ substantive arguments, we pause to ponder a potential problem: the claim that the Coalition, an unincorporated nonprofit association that was formed, according to the uncontradicted affidavit of its president, specifically “to provide a forum for research, analysis, discussion and public education of civic policy issues related to the public administration of the Town of Houl-ton, Maine” and “to perform civic public service in this role,” lacks standing. See United States v. AVX Corp., 962 F.2d 108, 113-16 (1st Cir.1992) (discussing elements of standing requirement for unincorporated associations).
The Town brings some heavy artillery to this battlefield. Two respected courts recently have held that individual garbage generators lacked standing to challenge schemes similar to Houlton’s under the Commerce Clause. See Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin County, 115 F.3d 1372, 1381-82 (8th Cir.), cert. denied, — U.S.—, 118 S.Ct. 629, 139 L.Ed.2d 609 (1997); Individuals for Responsible Gov’t, Inc. v. Washoe County, 110 F.3d 699, 703-04 (9th Cir.), cert. denied, — U.S. —, 118 S.Ct. 411, 139 L.Ed.2d 315 (1997). These courts emphasized that the purpose of the dormant Commerce Clause is to curtail states’ abilities to hinder interstate trade, and that the injury claimed by the individual garbage generators — being compelled to pay higher prices for services they neither required nor desired — was not even marginally related to this purpose. See Ben Oehrleins, 115 F.3d at 1382; Washoe County, 110 F.3d at 703.
The HOC shares many attributes with the parties found to lack standing in Ben Oehrleins and Washoe County. It is made up of individual trash generators who complain that under the 1997 Ordinance they will be forced to contract with Andino, when previously they could patronize other haulers (presumably at lower prices or on more felicitous terms). Despite this parallelism, however, we need not decide whether we share the outlook of the Ben Oehrleins and Washoe County courts. It is a settled principle that when one of several co-parties (all of whom make similar arguments) has standing, an appellate court need not verify the independent standing of the others. See Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 2100 n. 19, 141 L.Ed.2d 393 (1998); Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 976 (1st Cir.1989). We take refuge behind this principle today.
Here, Faulkner, a co-plaintiff, satisfies both the constitutional requirements and the prudential conditions for standing. He has lost the business of his residential customers in Houlton; that injury can be traced directly to the Town’s neoteric waste management scheme; and the injury would be adequately redressed by equitable relief and/or damages against the Town. As a classic plaintiff asserting his own economic interests under the Commerce Clause—a constitutional provision specifically targeted to protect those interests—Faulkner avoids any concerns relative either to jus tertii, see Worth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), or to the zone of interests requirement, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
We note, moreover, that Faulkner’s claim to standing is not damaged because he failed to allege that he hauled garbage out-of-state or planned to do so. In Commerce Clause jurisprudence, cognizable injury is not restricted to those members of the affected class against whom states or their political subdivisions ultimately discriminate. See General Motors Corp. v. Tracy, 519 U.S. 278, 286, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997). Thus, an in-state business which meets constitutional and prudential requirements due to the direct or indirect effects of a law purported to violate the dormant Commerce Clause has standing to challenge that law. See id. at 286-87, 117 S.Ct. 811 (collecting cases); see also Ben Oehrleins, 115 F.3d at 1379 (affirming district court’s finding of standing for in-state haulers and landfill operators).
That ends this phase of our inquiry. Because Faulkner has standing to challenge the 1997 Ordinance, we need not decide whether the HCC has standing to mount a challenge in its own right.
III. ANALYSIS
The appellants find four fatal flaws in the Town’s waste management scheme: (1) it insults the dormant Commerce Clause; (2) it takes private property without just compensation; (3) it impermissibly burdens contracts; and (4) its implementation by the Town violates the municipal charter. Only the first of these contentions demands extended discussion.
The first order of business requires us to remark the underlying legal standard. This appeal emanates from an order granting summary judgment. We have written extensively about that procedural device, see, e.g., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314-15 (1st Cir.1995) (collecting cases), and we need only sketch the parameters here.
A district court may enter summary judgment upon a showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.' R.Civ.P. 56(c). In this instance, the district court found that the Town had made such a showing and granted its motion for brevis disposition on all counts. We review orders for summary judgment de novo, considering the record and all reasonable inferences therefrom in the light most hospitable to the summary judgment loser. See Mullin v. Raytheon Co., 164 F.3d 696, 698 (1st Cir.1999). This standard of review permits us to embrace or reject the rationale employed by the lower court and still uphold its order for summary judgment. In other words, we may affirm such an order on any ground revealed by the record. See Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir.1996); Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991). With this brief preface, we turn to the substance of the appellants’ asseverations.
A. The Commerce Clause Challenge.
In terms, the Constitution empowers Congress “[t]o regulate Commerce ... among the several states.” U.S. Const, art I, § 8, cl. 3. Over time, courts have found a negative aspect embedded in this language—an aspect that prevents state and local governments from impeding the free flow of goods from one state to another. This has come to be known as the “dormant Commerce Clause.” The dormant Commerce Clause does not affect state or local regulations directly authorized by Congress, see Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769, 65 S.Ct. 1515, 89 L.Ed. 1915, (1945), but, rather, acts as a brake on the states’ authority to regulate in areas in which Congress has not affirmatively acted, see Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 571, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997). If a state or local government enters such uncharted waters and enacts a law that unduly favors in-state commercial interests over their out-of-state counterparts, that law “routinely” will be defenestrated under the dormant Commerce Clause “unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.” West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 192-93, 114 S.Ct. 2205, 129 L.Ed.2d 157 (1994).
The case at hand involves the application of the dormant Commerce Clause to a municipal waste management scheme. While the issue is one of first impression in this circuit, we come upon the scene finding the legal landscape already considerably cluttered. The Supreme Court has dealt with quandaries of this general kind several times in the last decade. See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994); Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep’t of Natural Resources, 504 U.S. 353, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992); Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992). Clarkstown is both the most recent and the most relevant of these precedents, and we use it as a point of departure to put into perspective the precise issue that confronts us.
After the closing of its municipal landfill and the entry of a consent decree with New York’s Department of Environmental Conservation, Clarkstown found itself in a situation similar to that of Houlton. See Clarkstown, 511 U.S. at 386-87, 114 S.Ct. 1677. In response, the town contracted with a commercial entity to build a transfer station within its borders (the .Route 303 station), retaining the right to purchase the transfer station for a nominal sum after five years. See id. at 387, 114 S.Ct. 1677. Clarkstown financed construction of the Route 303 station by guaranteeing that a set level of trash would be brought there and establishing above-market “tipping fees” to be paid by garbage disposers. See id. In order to ensure the fulfillment of this self-imposed quota, Clarkstown passed a flow-control ordinance directing that all waste within its borders be disposed of at the Route 303 station. See id. In defiance of this directive, Carbone (a local trash hauler) transported waste from Clarkstown to out-of-state landfills without passing it through the Route 303 station and without paying tipping fees there. See id. at 387-88, 114 S.Ct. 1677. Clarkstown sought an injunction, and Carbone defended on Commerce Clause grounds.
The New York courts ruled that the flow-control ordinance passed constitutional muster. See Town of Clarkstown v. C & A Carbone, Inc., 182 A.D.2d 213, 587 N.Y.S.2d 681, 687-88 (1992), appeal denied, 80 N.Y.2d 760, 591 N.Y.S.2d 138, 605 N.E.2d 874 (1992). The United States Supreme Court thought otherwise. It reversed, holding the ordinance unconstitutional. See Clarkstown, 511 U.S. at 394-95, 114 S.Ct. 1677. We find the architecture of the Court’s dormant Commerce Clause analysis instructive.
The Court first addressed the threshold question of whether the challenged ordinance discriminated on its face against interstate commerce (as opposed to regulating commerce evenhandedly with only incidental effects on interstate commerce). See id. at 390, 114 S.Ct. 1677; id. at 402, 114 S.Ct. 1677 (O’Con-nor, J., concurring). It noted that an ordinance that discriminates on its face against interstate commerce and in favor of local businesses is per se invalid, “save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest.” Id. at 392, 114 S.Ct. 1677. The Court further explained that if an ordinance is not discriminatory on its face, a balancing test must then be performed to determine its constitutionality. See id. at 390, 114 S.Ct. 1677. Viewed in this less intense light, the ordinance will stand unless the burden that it places upon interstate commerce is “clearly excessive in relation to the putative local benefits.” Id. (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970)).
Using these criteria, the Court adjudged Clarkstown’s flow-control ordinance discriminatory on its face; the ordinance achieved its goal of providing the refuse necessary to finance the Route 303 station “by depriving competitors, including out-of-state firms, of access to a local market.” Id. at 386, 114 S.Ct. 1677. For this reason, Justice Kennedy, writing for the majority, classified the ordinance as merely another example of the type of local processing requirement that the Court had invalidated with monotonous regularity, observing that Clarkstown’s scheme attempted to hoard solid waste, just as states and municipalities in prior cases had attempted to hoard other commodities for processing by local, as opposed to out-of-state, interests. See id. at 391-92, 114 S.Ct. 1677. To illustrate the point, the Court cited, inter alia, earlier decisions striking down schemes to “hoard” timber, South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 104 S.Ct. 2237, 81 L.Ed.2d 71 (1984), milk, Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951), and meat, Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (1890).
In the jurisprudence of the dormant Commerce Clause, a finding of facial discrimination is almost always fatal. Clarks-town proved no exception. Though the municipality’s interests in the efficient processing and disposal of solid waste and in financing its transfer station were legitimate concerns, the Court abrogated the flow-control ordinance because those goals could have been pursued through nondiscriminatory alternatives. See Clarkstown, 511 U.S. at 393, 114 S.Ct. 1677.
Our sister circuits have glossed the lessons of Clarkstown somewhat differently. In SSC Corp. v. Town of Smithtown, 66 F.3d 502 (2d Cir.1995), the Second Circuit considered a binary waste management scheme consisting of (a) a flow-control ordinance that required all municipal waste to be disposed of at a facility designated by the town, see id. at 507, and (b) a series of contracts with a discrete group of haulers for particular areas of the town, in which Smithtown granted each hauler an exclusive franchise for a specific area, required disposal at the town’s designated site, and financed the hauling contracts through tax assessments, see id. at 507-08. The court found the scheme’s first facet unconstitutional, believing that Clarkstown compelled it to nullify the ordinance “because it directs all town waste to a single local disposal facility, to the exclusion of both in-state and out-of-state competitors.” Id. at 514. The court nevertheless approved the scheme’s second facet, validating the town’s use of exclusive hauling contracts under the dormant Commerce Clause’s market participant exception. See id. at 514-18; see generally Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976) (holding that a state or municipality is outside the purview of the' dormant Commerce Clause — and thus may tilt in favor of local businesses — when it enters a market as a participant rather than as a regulator).
On the same day it decided Smithtown, the Second Circuit also decided USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272 (2d Cir.1995). As part of its solid waste plan, Babylon had entered an exclusive service agreement with a single hauler (BSSCI) to remove all commercial waste and simultaneously had precluded the licensing of other haulers. See id. at 1278-79. The town allowed BSSCI to dispose of the trash that it collected without charge at a municipally-owned, but privately-operated, incinerator. See id. at 1277-79. Moreover, it paid both BSSCI and the incinerator operator with public funds. See id.
The court held that Babylon’s scheme did not discriminate on its face against interstate commerce, but merely eliminated the commercial market for garbage collection services, substituting for it the town’s provision of those services through a private contractor. See id. at 1283. The court also held that Babylon’s grant of an exclusive franchise and free disposal rights to its chosen contractor constituted market participation, exempt from the requirements of the dormant Commerce Clause. See id. at 1288-89.
In the dim afterlight of Clarkstown, another court of appeals has spoken on the subject of flow control and the dormant Commerce Clause. See Harvey & Harvey, Inc. v. County of Chester, 68 F.3d 788 (3d Cir.1995). Acting pursuant to state law, the county commissioners of Chester, Pennsylvania, adopted a solid waste plan and a flow-control ordinance. See id. at 794. The ordinance created two service areas and required all garbage in each area to go to a designated landfill within that area (save only for a certain amount of waste allocated to a third in-state landfill nearby). See id. at 794-95. Harvey & Harvey, Inc., an interstate hauler and processor, challenged the plan under the dormant Commerce Clause. The district court ruled that the plan did not discriminate on its face against interstate commerce and that application of the Pike balancing test was warranted. See id. at 795. Because Harvey & Harvey conceded that it could not prove its case under that standard, the court entered judgment for the defendant.
On appeal, the Third Circuit acknowledged that, under Clarkstown, a flow-control ordinance favoring a single in-state operator over all other in-state and out-of-state operators might be vulnerable to attack under the dormant Commerce Clause. See id. at 798. Still, the court observed that not all such ordinances would suffer such a fate. See id. Similarly, “[t]hat [an] ordinance requires the use of [a] selected facility, thus prohibiting the use of non-designated facilities (which may be out of state), does not itself establish a Commerce Clause violation.” Id. Thus, although the grant of an exclusive contract to a local waste hauler/processor is suspect, it is not a per se violation of the dormant Commerce Clause. See id. at 801.
The Third Circuit then explained that, to secure a finding of discrimination vis-á-vis a flow-control scheme that excludes all out-of-state haulers and/or processors and most in-state haulers and/or processors, the challenger must show that those excluded did not have a fair opportunity to obtain the town’s custom. If the playing field is level for both in-state and out-of-state bidders, such parity ordinarily will satisfy the constitutional imperative. See id. at 802. Under this standard, “a local authority could choose a single provider— without impermissibly discriminating against inter-state commerce — so long as the selection process was open and competitive and offered truly equal opportunities to in- and out-of-state businesses.” Id. The court of appeals then asked the district court to reconsider Harvey & Harvey’s plaint in light of the newly articulated standard. See id. at 807.
Against this backdrop, we inquire whether the 1997 Ordinance enacted by the Houlton Town Council discriminates on its face against interstate commerce. Like Clarkstown’s ordinance, the challenged ordinance and the contract granted ancillary to it funnel all residential waste through a single contractor. Because of that similarity, the appellants chant the Clarkstown catechism, claiming that Houl-ton’s scheme “deprives out-of-state businesses of access to a local market,” Clarkstown, 511 U.S. at 389, 114 S.Ct. 1677, and thereby “discriminates, for it allows only the favored operator to process waste that is within the limits of the town,” id. at 391, 114 S.Ct. 1677. Houlton dismisses the analogy to Clarkstown. In its view, the more apt analogy is to Smithtown’s second facet because Houlton, like Smithtown, became the only buyer in the local garbage market by means of the 1997 Ordinance and, acting as a market participant, hired Andino to service its garbage needs. Alternatively, the Town compares its position to Babylon’s because it took over the garbage collection market while acting as a regulator, and then privatized its own provision of collection services, acting as a market participant.
This last argument proved persuasive below. Following the Babylon court’s lead, the district judge considered the two parts of Houlton’s waste management scheme separately. Initially, he ruled that the 1997 Ordinance constituted market regulation and, like Babylon’s ordinance, served merely to eliminate the private sector from the garbage collection business. See HCC I, 982 F.Supp. at 43-44. Still concentrating on the ordinance, the judge noted that Houlton had become “the lone provider of [collection] services and ha[d] hired Andino to furnish these services on its behalf subject to the Town’s supervision and control.” Id. at 45. On this basis, he concluded that the 1997 Ordinance did not facially discriminate against interstate commerce. See id. at 46. Finally, he performed the requisite balancing test and declared the ordinance constitutional. See id.
The judge also considered the Town’s contract with Andino and found that, under this contract, “Houlton is acting as a ‘buyer’ in the garbage collection, disposal, and processing markets, and enters those markets ‘with the same freedoms and subject to the same restrictions as a private party.’ ” Id. at 44 (quoting Smithtown, 66 F.3d at 509). Because the Town acted as a market participant in dealing with Andi-no, the judge concluded, the contract between the two escapes scrutiny under the dormant Commerce Clause. See id.
For two reasons, we are reluctant to place our imprimatur on the district court’s bifurcated analysis. First, Smith-town and Babylon are cutting-edge decisions, and it is unclear to us whether or not the Supreme Court eventually will adopt their ratio decidendi. Second, and perhaps more important, although Houl-ton’s waste management scheme shares some features of the Smithtown and Babylon schemes, it differs significantly in requiring that those municipal residents who do not choose to tote their own garbage contract individually with the Town’s designated hauler for the purpose of removing residential refuse. See 1997 Ordinance § 10-507(1). Moreover, even self-haulers are required to use a designated transfer station. See id. § 10-504. The ordinance thus explicitly creates forced business transactions—an element that was present in Clarkstown, but lacking in the Second Circuit cases (both of which involved arrangements that avoided forced transactions by the simple expedient of appropriating tax dollars to fund waste management services). This distinction cannot be disregarded, for the Second Circuit’s market participation analysis in Smith-tom and its finding of nondiscrimination in Babylon were, at least to some extent, dependent on those communities’ expenditures of public funds in support of their contractual arrangements. See Smithtown, 66 F.3d at 515 (noting that “Smith-town is spending tax dollars to pay for both [waste collection and disposal] services”); Babylon, 66 F.3d at 1283 (distinguishing Clarkstown on the ground that “the payment of taxes in return for municipal services is not comparable to a forced business transaction”).
We need not probe this point too deeply, however, for the case at hand can be resolved in a more straightforward fashion. We do not interpret Clarkstown as explicating a broad-based ban on every flow-control ordinance that happens to be coupled with an exclusive contractual arrangement in favor of an in-state operator. To suggest that every such ordinance violates Clarkstown would stretch both Justice Kennedy’s language and the logic of the dormant Commerce Clause past the breaking point.
The core purpose of the dormant Commerce Clause is to prevent states and their political subdivisions from promulgating protectionist policies. See, e.g., Camps Newfound/Owatonna, 520 U.S. at 578, 117 S.Ct. 1590 (citing “economic isolationism” as “the very evil that the dormant Commerce Clause was designed to prevent”); New Energy Co. v. Limbach, 486 U.S. 269, 273-74, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988) (explaining that the “ ‘negative’ aspect of the Commerce Clause prohibits economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors”); see also Clarkstown, 511 U.S. at 390, 114 S.Ct. 1677 (“The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent.”). It follows, therefore, that if local legislation leaves all comers with equal access to the local market, it does not offend the dormant Commerce Clause. See CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 94, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471-72, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Harvey & Harvey, 68 F.3d at 802. In other words, to the extent that in-state and out-of-state bidders are allowed to compete freely on a level playing field, there is no cause for constitutional concern.
It is a logical next step that when the Commerce Clause inquiry focuses on a state or local plan that culminates in an award of an exclusive contract to one of several aspirants (actual or potential), the process by which the contractor is chosen assumes great importance in determining the plan’s constitutionality vel non. See Harvey & Harvey, 68 F.3d at 801. After all, in-state interests are not unduly pampered, nor out-of-state competitors unduly burdened, when a municipality awards an exclusive contract to a low bidder (from whatever state or region) after a fair and open bidding process. In such circumstances, unrestricted access to the bidding process constitutes unrestricted access to the relevant market.
Applying this tenet, Houlton’s 1997 Ordinance does not flout the dormant Commerce Clause. Andino did not become the Town’s contractor in a backroom deal, cutting potential competitors off at the pass, but, rather, earned the Houlton contract through its successful completion of a well-advertised, fully competitive bidding process that was accessible to all who coveted the business. The Town issued a detailed RFP after holding a widely publicized meeting, open to all prospective bidders, at which such prospective bidders were able to comment on, and ask questions about, the project. The record contains no hint that the Town restricted the bid protocol to a particular class of bidders, shaped it to favor in-state operators, or slanted it in any way against out-of-state purveyors. The RFP itself includes no terms that either give in-state operators a leg up or disadvantage their out-of-state rivals.
In point of fact, the RFP allows any bidder willing and able to haul and dispose of Houlton’s trash to submit a proposal. It does not lock bidders into using a particular transfer station; on the contrary, its terms permit the successful bidder to contract with whomever the bidder chooses (in-state or out-of-state) to process the garbage and effectuate disposal at any lawful site within or without the state. Furthermore, the RFP specifically notes that bidders may request deviations or file alternative proposals.
In response to the RFP, the Town received multiple bids. It awarded the contract to Andino—the low bidder. The contract’s seven-year term, though lengthy, does not seem excessive considering the relatively substantial commitment of equipment and other resources required on the successful bidder’s part—and nothing about this duration impacts out-of-state operators differently than their instate competitors. In short, this open and freely accessible bidding process ensured a level playing field for all interested parties and provided sufficiently broad market access to quell Commerce Clause concerns. Consequently, the Town’s garbage disposal scheme does not constitute a per se violation of the dormant Commerce Clause, but instead regulates commerce evenhandedly, with no more than incidental effects on interstate trade.
This brings us to the balancing test. Under this test, we must uphold the 1997 Ordinance “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike, 397 U.S. at 142, 90 S.Ct. 844. In light of the strong local interest in efficient and effective waste management and the virtually invisible burden that the Town’s scheme places on interstate commerce, Houlton passes this test with flying colors. See generally Northwest Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 525-26, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989); Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm’n, 461 U.S. 375, 394-95, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983). Hence, the district court did not err in entering summary judgment against the appellants on their Commerce Clause claim.
B. Remaining Arguments.
The appellants’ three remaining arguments need not detain us. We note briefly why we regard two of them as unavailing, and why we conclude that the third should be left to the state courts.
1. The Takings Clause. The Fifth Amendment’s 'mandate that private property shall not be taken for public use without just compensation applies to the states and their political subdivisions through the Fourteenth Amendment. See Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897). This protection is not restricted to physical invasions, occupations, or removals of property; in some cases, overly assiduous government regulation can create an unconstitutional taking. Whether a particular restriction implicates the Takings Clause is context-sensitive and hinges on the specific circumstances. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958). In mounting such inquiries, courts must weigh especially the character of the government action, its economic impact on the plaintiff, and the degree to which it interferes with the plaintiffs reasonable, investment-backed expectations. See Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 674 (1st Cir.1998).
Faulkner perceives a regulatory taking in this case because, after operating his trash-collecting business in Houlton for many years unfettered by municipal tethers, the passage of the 1997 Ordinance curbed his activities and dried up a significant income stream. But this argument swims against a powerful tide: courts steadfastly have rejected the proposition that the grant of an exclusive contract for refuse collection constitutes a taking vis-a-vis other (competing) trash haulers. See California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 321-323, 26 S.Ct. 100, 50 L.Ed. 204 (1905); Gardner v. Michigan, 199 U.S. 325, 330-31, 26 S.Ct. 106, 50 L.Ed. 212 (1905); Tri-State Rubbish, Inc. v. Waste Mgmt., Inc., 998 F.2d 1073, 1082 (1st Cir.1993). Since we have no reason to question the continuing vitality of this impressive string of cases, we affirm the district court’s grant of summary judgment in favor of the defendant on the takings claim.
2. The Contract Clause. The Contract Clause declares that: “No State shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const, art. I, § 10, cl. 1. Despite the majestic sweep of this language, the Contract Clause is not energized unless a contractual relationship exists, that relationship is impaired by a change in the law, and the resultant impairment is substantial. See General Motors Corp. v. Romein, 503 U.S. 181, 186, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992); McGrath v. Rhode Island Retirement Bd., 88 F.3d 12, 16 (1st Cir.1996). The first two parts of this inquiry are, as in this case, often easily satisfied. Faulkner enjoyed garbage collection contracts with approximately 75 Houlton residents, and the 1997 Ordinance effectively prevents him from fulfilling those contracts. Thus, the controlling question is whether this impairment should be regarded as substantial.
In order to weigh the substantiality of a contractual impairment, courts look long and hard at the reasonable expectations of the parties. In this inquiry, it is especially important whether the parties operated in a regulated industry. See Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 413, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983); Mercado-Boneta v. Administracion del Fondo de Compensacion Al Paciente, 125 F.3d 9, 13 (1st Cir.1997). While Faulkner and his garbage collection customers did business for many years uninhibited by any regulation precisely akin to the 1997 Ordinance, they would have had to be troglodytes not to have known that the waste collection and disposal industry is subject to fairly pervasive regulation. See, e.g., Clarkstown, 511 U.S. at 386, 114 S.Ct. 1677 (collecting recent Supreme Court cases dealing with the validity of various aspects of such regulation). Indeed, Houlton’s foray into flow control was prompted by the continued regulatory efforts of the State of Maine. In this vein, while the 1995 Ordinance eventually proved abortive, it plainly adumbrated for Faulkner and his customers that change was in the wind. The general condition of regulation in the waste management industry and the specific foreshadowing provided by Houlton’s action in 1995 should have led Faulkner to realize that his collection contracts could not be maintained ad infinitum.
Viewed through this prism, the question whether the impairment worked by the 1997 Ordinance meets the test of substantiality is close. We need not decide that close question, however, for even a state law that creates a substantial impairment does not transgress the Contract Clause as long as it is appropriate for, and necessary to, the accomplishment of a legitimate public purpose. See Energy Reserves, 459 U.S. at 412, 103 S.Ct. 697; Mercado-Boneta, 125 F.3d at 15. “The requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests.” Energy Reserves, 459 U.S. at 412, 103 S.Ct. 697. The 1997 Ordinance addresses itself specifically to “ensur[ing] reliable provision of collection and hauling services which will further the interest of public health and safety.” 1997 Ordinance (preamble). Health and safety are two mainstays of the police power. See, e.g., Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978). Thus, this stated purpose and the ordinance’s goal to achieve economies of scale for the benefit of Houlton’s residents, see 1997 Ordinance (preamble), fit well within the category of remedies for “broad and general social or economic problem[s]” that the Supreme Court has stated will meet its criteria of legitimacy in a Contract Clause context, Energy Reserves, 459 U.S. at 412, 103 S.Ct. 697.
Upon finding a legitimate public purpose, the next step ordinarily involves ascertaining the reasonableness and necessity of the adjustment of contract obligations effected by the regulation to determine finally whether the regulation offends the Contract Clause. See id.; Mercado-Boneta, 125 F.3d at 15. Withal, an exception to this rule exists when the contracts at issue are private and no appreciable danger exists that the governmental entity is using its regulatory power to profiteer or otherwise serve its own pecuniary interests. ,In such instances, a court properly may defer to the legislature’s judgment. See Energy Reserves, 459 U.S. at 413, 103 S.Ct. 697; Mercado-Boneta, 125 F.3d at 15. So it is here: by enacting the 1997 Ordinance, the Town has reshaped the conduct of waste removal within its borders, but has not altered its own fiscal obligations. The waste management system—collectively, the ordinance and the contract entered into pursuant to it—neither requires the outlay of public funds nor relieves the Town’s coffers of any financial burdens. Accordingly, we defer to the Town Council’s judgment that the system it created through the 1997 Ordinance is a moderate course designed to achieve the permissible purposes stated in the ordinance’s preamble. Because the 1997 Ordinance, so viewed, is reasonable in light of the circumstances, see Mercado-Boneta, 125 F.3d at 15, the district court did not err in resolving the Contract Clause claim against the plaintiffs.
3. The Town Charter. The appellants do not dispute that the initial contract between Andino and the Town was secured through a fair and open competitive bidding process in which Andino was the successful low bidder. This process was mandated by, and fully conformed to, the requirement that “[a]ll purchases by the Town of property, services, and contract rights which exceed five thousand dollars ($5,000.00) shall be conducted by sealed, competitive bidding.” Houlton Town Charter § 512, ¶ 3. They assert, however, that the Town violated the charter when it renegotiated Andino’s contract to bring it in line with the 1997 Ordinance. The district court rejected this assertion, holding that there was no need for a new round of bidding, and that the renegotiated contract was valid. See HCC II, 11 F,Supp.2d at 111-12.
We think that this scenario presents a close question of state law — and one that the district court did not need to reach. After all, the district court had no independent jurisdiction over the town charter claim; and, although 28 U.S.C. § 1367 allows a district court that has jurisdiction over a series of federal claims to entertain related state-law claims that “form part of the same case or controversy,” id., it does not oblige the court to continue with those claims if, prior to trial, it disposes of the federal claims. Where, as here, the federal claims upon which the court’s jurisdiction depends are resolved before trial, section 1367 confers upon the judge the authority to dismiss a supplemental state-law claim without prejudice. See Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995); Martinez v. Colon, 54 F.3d 980, 990 (1st Cir.1995).
In this instance, the town charter claim is not only difficult, but also novel as a matter of state law. The litigation was in the early stages. Under the circumstances, we conclude that dismissal without prejudice clearly was the option of choice, and that the district court should not have ventured to adjudicate the town charter claim. See Rodriguez, 57 F.3d at 1177 (admonishing that “a federal court may be wise to forgo the exercise of supplemental jurisdiction when the state law that under-girds the nonfederal claim is of dubious scope and application”); see also 28 U.S.C. § 1367(c)(1).
IV. CONCLUSION
We need go no further. The Town of Houlton’s adoption of a flow-control ordinance, coupled with its grant of an exclusive hauling and disposal contract to a local contractor, does not discriminate on its face against interstate commerce because both in-state and out-of-state providers were allowed to compete for this contract on the same footing. Moreover, since any incidental effects that this waste management scheme may have on interstate commerce correspond to legitimate local interests in efficiency and public health, the plan does not violate the dormant Commerce Clause. By like token, it does not work an unconstitutional taking or impermissibly impugn private contracts. Finally, because the town charter claim depends entirely on state law, we think that the better course is to leave that claim to be litigated in the state courts (should the appellants choose to press it). We therefore direct the district court to modify its judgment to provide that the appellants’ claim under the Houlton Town Charter is dismissed without prejudice.
Affirmed as modified. Costs in favor of the appellee.
. Prior lo oral argument in this court, Con-don and Spellman withdrew as appellants. Faulkner and HCC press on with the appeal.
. Clarkstown's favoring of a single local processor over all other processors, in-state and out-of-state, "ma[de] the protectionist effect of the ordinance more acute” by “squelch[ing] competition in the waste-processing service altogether, leaving no room for investment from outside.” Clarkstown, 511 U.S. at 392, 114 S.Ct. 1677.
. To be sure, the appellants argue that the contract with Andino was awarded in violation of the procedure required by the town charter. That is a different issue, and we treat it in Part 111(B)(3), infra.
. This renegotiation occurred after the district court had issued a preliminary injunction barring implementation of the 1995 Ordinance, predicated on a finding that the Commerce Clause challenge likely would succeed. See Condon, 961 F.Supp. at 331. The Town contends that the renegotiation was obligatory pursuant to paragraph 8 of the 1995 contract between Andino and the Town, which reads in its entirety:
In the event that the Contract Documents or any provision thereof shall be found by the courts to be invalid or unenforceable, then such Documents or provision thereof shall be re-negotiated in good faith by the parties and made to conform to applicable laws. The invalidity or unenforceabiliiy of any provision of a Contract Document shall not affect the validity or enforceability of any other provision of the Document or any other contract Document provided, however, that should the courts declare the exclusive franchise provisions of this Contract to be unlawful, then the parties agree that this Contract is impossible to perform and shall be null and void with no damages due to either party and with no duty to re-negotiate the terms hereof.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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Affirmed in part, vacated in part, and remanded for further proceedings by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING joined. Judge MICHAEL wrote an opinion dissenting in part and concurring in part.
OPINION
NIEMEYER, Circuit Judge:
After purchasing a 32-acre parcel of land in Anne Arundel County, Maryland, Crofton Ventures Limited Partnership (“Crofton”) discovered that a portion of the parcel had been used as a hazardous waste dump. After reporting its discovery to the Maryland Department of the Environment and cleaning up the site, it brought this action under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., against former owners and operators of the land to recover its response costs. In addition to its CERC-LA claim, Crofton asserted common law claims for fraudulent misrepresentation and breach of contract. Following a bench trial, the district court entered judgment for the defendants on all counts. Because we conclude, however, that the district court erroneously construed the requirements of CERCLA, we vacate its ruling on that claim and remand. We affirm the court’s remaining rulings.
I
On April 9, 1987, Crofton entered into a contract with G & H Partnership, of which Harry and Dahlia Ratrie were partners, (collectively hereinafter, “Ratrie”), to purchase a parcel of land to be carved from Ratrie’s 55-acre tract located on Pa-tuxent River Road in Anne Arundel County, Maryland. Crofton intended to develop the site for operation of a vehicle salvage business involving the storing and selling of motor vehicles that had been declared a total loss. As part of the contract of sale, which the parties amended from time to time, Ratrie represented:
To the best of Seller’s knowledge and while the[property] was in Seller’s possession, the [property] has not been used for hazardous waste disposal, and no party has transported, caused to be transported, stored or caused to be stored on the [property], in any buildings, containers, on the surface or underground, any solid, liquid, semi-solid or gaseous materials that would constitute “hazardous wastes” ... “hazardous substances” ... “oil, petroleum products, and their byproducts” ... or any substance the presence of which on the [property] is prohibited or regulated by any law similar to those set forth in this section and that the [property] has not been contaminated by any of the aforementioned hazardous or toxic wastes or substances[.]
In 1991, before closing, Ratrie subdivided the 55-acre tract and, at closing, conveyed-a 32-acre parcel to Crofton pursuant to the April 1987 contract. When Crofton began to develop the site in 1995, it discovered a waste dump on the site that contained a total of 285 fully or partially buried 55-gallon drums, truck tires, household appliances, and other similar refuse. Upon testing five of the drums, Crofton found that four contained a mixture of asphalt and trichloroethylene (“TCE”), a common solvent known to be carcinogenic and constituting a hazardous substance under federal and state environmental laws. Crofton reported its finding to the Maryland Department of the Environment and, thereafter, under the Department’s supervision, cleaned up the site.
In the process of cleaning up the site, Crofton found a few corrugated drums of World War II vintage. The remainder of the drums, however, were of a type manufactured during the period “in [the] late '70s through the '80s and to today.” They were discovered in a broad array of disrepair, described variously as “rusted,” “crushed,” “split open,” “leaking,” and “broken.” Two hundred forty-six of these drums contained observable asphalt, and most smelled of TCE. Two sets of 10 drums containing asphalt were sampled and tested to determine whether they contained hazardous substances, and the tests from each of the two composite samples indicated high concentrations of TCE. “High levels” of TCE were also found in the soil and groundwater at the site.
After cleaning up the site, Crofton commenced this action under CERCLA to recover all or part of its cleanup costs. It also alleged state common law counts for fraudulent misrepresentation and breach of warranty.
The evidence at trial established that the 55-acre tract had been used from the 1930s to 1977 by its owner Alan E. Barton and various tenants for the production of hot-mix asphalt, ready-mix concrete, and sand and gravel. After Barton’s death, the tract was conveyed to E. Stewart Mitchell, Inc. (“Mitchell”), a Maryland corporation, which owned it until 1985. Mitchell operated an asphalt plant on the tract during the early part of that period— from 1977-1980 — and thereafter sold the business to Ratrie, leasing to him the property with an option to purchase. In 1985, Ratrie exercised the option and bought the tract from Mitchell. Ratrie subsequently leased it to an operator who continued to produce asphalt on the tract. Both Mitchell and Ratrie concede that, as defined by CERCLA, they were owners during the relevant periods, 1977-85 and 1985-1991, respectively, and that Mitchell was an operator from 1977-1980.
The evidence in the record indicates that TCE was used at the site beginning in 1979, when Mitchell began using TCE in testing hot-mix asphalt as required by the State of Maryland. In 1980, when Mitchell ceased operating the plant and leased the property to Ratrie, Ratrie continued to produce asphalt at the site and test it in the same manner. From 1979 until the late 1980s, waste material from asphalt testing on the site — consisting of a mixture of liquid asphalt, aggregates, and TCE— was placed in 55-gallon drums of the type found at the site by Crofton. No evidence could be uncovered, however, as to how Mitchell or Ratrie, or indeed the State of Maryland, disposed of those waste-filled drums. Mitchell retained no records of the drums’ disposition, and no witness recalled how the drums were disposed of.
Upon Crofton’s purchase of the site in 1991, no further operations were conducted there, and it remained unused until Crofton began its development of the property in 1995, at which time Crofton discovered the hazardous waste.
Following a four-day bench trial, the district court made findings of fact, upon which it entered judgment dismissing all of the claims with prejudice, concluding generally that Crofton had failed to meet its burden of proof on each of the three counts. On Crofton’s CERCLA claim, the district court found that hazardous wastes had been released on the site, causing Crofton to incur response costs. It concluded, however, that the evidence failed to establish that either Mitchell or Ratrie “placed any TCE on the Site.” The court observed that if Crofton “could so prove, [Mitchell] would be a responsible person from 1981 to 1985 and [Ratrie] would be a responsible person starting in 1985.” The district court acknowledged that prior to 1995, when Crofton discovered the partially buried drums, “one or more persons ... placed TCE on the Site.” But the court stated that the dispositive question was “whether [Crofton] has proven that some, if not all, of the drums containing TCE were placed on the Site by the [defendants] from 1977 on.” And it repeated that statement of the issue in its discussion: “The question before this Court is whether the Court can find, by a preponderance of the evidence, that the [defendants] dumped their TCE waste on the Site.” The court then summarized its findings, concluding that Crofton “has presented no direct evidence of dumping by the [defendants], the alleged perpetrators.” (Emphasis added). Acknowledging that Crofton could also satisfy its burden through circumstantial evidence, the court concluded that the circumstantial evidence was likewise insufficient:
[Crofton] has, at most, presented evidence to raise a mere suspicion that the [defendants] (or one of them) might be responsible for placing some drums containing TCE at some improper location. [Crofton] has not proven by a preponderance of the evidence that the [defendants] placed any TCE on the Site.
On the fraud claim, the court found that Crofton failed to prove that Ratrie knew that hazardous waste was buried on the property when he represented in the contract of sale that it was not. And on the breach of contract claim based on Ratrie’s express warranty that “to the best of [his] knowledge,” the site had not been used for waste disposal, the court likewise found that Ratrie did not have knowledge of any hazardous waste disposal and therefore did not breach that express warranty.
Crofton filed this appeal, which challenges the legal and factual bases for the court’s findings on the CERCLA claim and the factual bases for its findings on the state common law claims.
II
Crofton brought its CERCLA claim for contribution under 42 U.S.C. § 9613(f), which authorizes a suit in contribution against “any other person who is liable or potentially liable under section 9607(a)” for response costs. It asserts that Mitchell and Ratrie are liable under § 9607(a) for response costs because they were owners or operators of a site during the time when hazardous waste was “disposed of’ at the site. They argue that under CERCLA, the term “disposed of’ is a term of art that results in liability for defendants if they owned or operated the property at a time that the TCE was actually placed on the site or when TCE leaked into the soil at the site. Crofton contends that the district court erred in requiring it to prove that the defendants “dumped their TCE waste on the Site” during the period that they were owners or operators. It also contends that the district court clearly erred in making factual findings about the size and location of the area in which the 55-gallon drums were found, the date when the drums were buried, and the source of the drums containing the TCE waste.
We address Crofton’s argument by first looking at the nature of its claim under CERCLA and the elements that Crofton must prove. CERCLA was enacted to address “the increasing environmental and health problems associated with inactive hazardous waste sites. The statute encourages private cleanup of such hazards by providing a cause of action for recovery of costs incurred in responding to a ‘release’ of hazardous substances at any ‘facility.’ ” Nurad, Inc. v. William E. Hooper & Sons, 966 F.2d 837, 841 (4th Cir.1992). The Act imposes broad and strict liability for the costs of cleaning up hazardous waste sites without regard to whether the persons assigned liability under the Act placed the waste material on the site or had knowledge of the waste materials’ presence. See United States v. Monsanto Co., 858 F.2d 160, 168 (4th Cir. 1988); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985).
Section 9607(a), which defines the scope of liability, provides that in connection with a facility “from which there is a release, or threatened release which causes the incurrence of response costs, of a hazardous substance,” four classes of persons are liable for the response costs, two of which are relevant here:
(1) the owner and operator of a vessel or a facility, [and]
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.
42 U.S.C. § 9607(a)(1), (2). Subsection (a)(1) thus imposes liability on current owners and operators of a facility, such as Crofton, and subsection (a)(2) imposes liability on any previous owners or operators of the facility if they were owners or operators at the time of “disposal.” “Disposal” is defined broadly to include the “discharge,” “leaking,” or “placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment.” 42 U.S.C. § 9601(29) (incorporating definition from 42 U.S.C. § 6903(3)). Thus, under subsection (a)(2), any owner or operator is liable if he was an owner or operator at the time when hazardous waste was either placed on the site or leaked into the environment from a source on the site, whether or not such owner or operator was the cause of the disposal or, indeed, even had knowledge of it. See Monsanto, 858 F.2d at 168 (holding that under 42 U.S.C. § 9607(a)(2), ownership of a facility at the time when hazardous substances were deposited is sufficient to trigger liability regardless of the owners’ degree of participation in the disposal); Shore Realty, 759 F.2d at 1044 (“Prior owners and operators are liable only if they owned or operated the facility ‘at the time of disposal of any hazardous substance’ ”).
In sum, to recover contribution under CERCLA for response costs, as authorized by 42 U.S.C. § 9613(f), a plaintiff must establish: (1) that it incurred costs as a person liable under § 9607(a) in the response to a “release” or “threatened release”; (2) that the response was “consistent with the national contingency plan”; (3) that the defendant was a person liable for response costs under § 9607(a)(l)-(4); (4) that the defendant, if asserted to be a person covered by subsection (a)(2), as Crofton asserts in this case, was an owner or operator of a facility or site at the time that the hazardous waste was dumped at the site or when it leaked into the environment there; and (5) that the costs incurred by the plaintiff were “necessary” to the response. Necessary costs are defined to include interest. Once a plaintiff proves these elements, the defendant may avoid liability only by proving an affirmative defense provided in § 9607(b).
In this case, the district court found that Crofton incurred costs in response to a release as a person liable under 9607(a)(1). It did not, however, decide whether the response was consistent with the national contingency plan because it concluded that Crofton failed to prove that the defendants were persons liable for the response costs under § 9607(a)(2). Accordingly, we must determine whether, when the correct legal standard is applied, Crofton could recover under CERCLA. Reduced to the context of the evidence presented, we must determine whether, during the period when Mitchell or Ratrie owned or operated the site in question, evidence was sufficient to show that TCE was dumped at the site or that TCE leaked from the drums at the site into the environment. We believe there is ample evidence to establish both bases of liability in this case and that the district court overlooked this evidence because it misconstrued the requirements for establishing liability under CERCLA.
The uncontroverted evidence shows that TCE was routinely used at the site beginning in 1979. Indeed, there is no evidence that it had been used at the site prior to that date. TCE was used to test asphalt at the site by Mitchell, by Ratrie, or by the State of Maryland, but, for purposes of establishing liability, it is immaterial who conducted the testing or used the TCE at the site. The uncontroverted evidence also established that a waste mixture of asphalt and TCE was, during the period from 1979 through the late 1980s, placed in 55-gallon drums at the site. Despite efforts to discover the fate of these drums, however, none of the owners or operators can account for what happened to the drums, and all records relating to this issue have somehow become unavailable. But the drums found at the site, filled with a mixture of asphalt and TCE, were of a type that were manufactured in the late 1970s and 1980s, and not before. When the drums were found in 1995, they were in a state of gross disrepair, evidencing a long period during which their contents were leaking into the environment at the site. Finally, the evidence was uncontro-verted that TCE was found in the soil and in the groundwater at the site.
We believe that these facts, which are relevant to the appropriate legal standard for liability under the Act, would easily permit a fact-finder to conclude either (1) that TCE was placed on the site after 1977 or (2) that during the period after 1977, whether the drums were placed on the site before or after 1977, the drums’ contents, including TCE, began to leak into the environment at the site and continuously leaked into the environment until cleaned up. Either conclusion would support liability of an owner or operator of the site from 1977 until 1995. It is irrelevant under the Act that Crofton could not prove who actually dumped the TCE at the site or whether any owner or operator had knowledge of the dumping or leaking during the relevant period. As we have pointed out, liability under the Act is strict and does not require that either of these elements be shown. See Nurad, 966 F.2d at 841.
The district court appears to have assumed otherwise, erroneously adding elements for establishing liability under the Act by requiring Crofton to show that the defendants themselves actively dumped the TCE at the site or otherwise were involved in the dumping. And relatedly, the court erroneously construed the term “disposal,” as used in the Act, too narrowly. The court repeatedly used language in its opinion suggesting that it limited “disposal” to active conduct of the defendants. Thus, the district court said that “[t]o establish the CERCLA claims, Plaintiff must prove that [the defendants ] placed TCE on the site.” (Emphasis added). After discussing Crofton’s claim, the court stated that “the case turns on whether the Plaintiff can prove if, and when, the operators of the asphalt plant on the ... Site ... dumped TCE on the Site.” (Emphasis added). The court again stated, after concluding that someone placed TCE on the site prior to 1995, that “the question before the Court is whether the Plaintiff has proven that some ... of the drums containing TCE were placed on the Site by the [defendants] from 1979 on.” (Emphasis added). In concluding that Crofton did not make the showing demanded by the court, the court stated that Crofton “has not proven by a preponderance of the evidence that the [defendants ] ... placed any TCE on the Site.” The court then repeated the issue as it understood it: “The question before this Court is whether the Court can find, by a preponderance of the evidence, that the [defendants ] dumped their TCE wastes on the Site.” (Emphasis added). The district court did not appear to countenance the possibility that the drums were buried on the site at the behest of some unknown third party, although there is evidence in the record supporting precisely such a possibility. Of course, given the court’s apparent belief that a conclusion that a third party was responsible for dumping of TCE would have been insufficient to impose liability upon the defendants, it is understandable that the court failed to take this possibility into account when it analyzed the evidence.
The district court thus made two legal errors. First, it believed that liability could not attach under § 9607(a) unless Crofton showed that the defendants placed or dumped TCE on the site. Second, the district court apparently believed that the defendants could not be liable for Crof-ton’s response costs absent evidence linking the TCE used by the defendants and the TCE that was buried in the drums at the site. These legal assumptions overlooked the strict liability imposed by the Act for any owner or operator of land at which hazardous waste is in fact leaking into the environment. While “disposal” includes activities such as “dumping,” it also encompasses “spilling” and “leaking ... of any ... hazardous waste into or on any land or water so that such ... hazardous waste ... may enter the environment.” 42 U.S.C. § 9601(29) (incorporating the definition from 42 U.S.C. § 6903(3)). Given the breadth of the statutory definition of “disposal,” the district court must be able to conclude that the buried drums did not leak between 1977 and 1991, regardless of when they were buried, to make a finding that the owners and operators during that period were not liable under § 9607(a)(2).
Because the district court did not reach other elements of liability and did not address the defendants’ affirmative defenses asserted under 42 U.S.C. § 9607(b), we vacate the court’s ruling on the CERCLA count and remand for further proceedings.
Ill
Crofton’s challenge to the district court’s factual findings on its common law claims are based on the district court’s findings of fact that the defendants did not have knowledge of the existence of the hazardous waste at the site. We have reviewed the record carefully and do not find the district court’s factual findings in this regard clearly erroneous. Accordingly, we affirm the district court’s rulings with respect to Crofton’s claims for fraudulent misrepresentation and breach of contract.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
. The contract of sale was actually signed by C & H Properties, a partnership, but before closing, it assigned its interest in the property to Crofton, which took title to the property on February 27, 1991.
. The relevant portions of 42 U.S.C. § 9607(a) provide:
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—
(1) the owner and operator of a vessel or a facility,
(2) any persons who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan.
The amounts recoverable in an action under this section shall include interest on the amounts recoverable under subparagraphs (A) through (D).
. Contrary to the suggestion of our dissenting colleague, a review of the complete record does not disclose that Crofton advanced a new theory of liability for the first time at the end of closing argument. The "bombshell” that counsel for Crofton "dropped” was their advice to the district court that the court was reading CERCLA too narrowly, failing to recognize that "disposal” includes "leaking.” See 42 U.S.C. § 9601(29). And while counsel acknowledged that their attempt to prove the defendants' actual dumping would present a stronger case for Crofton, they argued that Crofton could meet its burden of establishing liability under CERCLA simply by showing that hazardous wastes "leaked" into the land while owned by the defendant. But this was not a new theory; it was rather a lesser included burden of proof.
Crofton stated its theory of liability in its complaint, alleging as one basis of CERCLA liability as to all of the defendants that each was either an owner or operator "of the Property at the time hazardous substances were released and disposed of on the Property.” It also alleged that some of the defendants actually dumped hazardous wastes on the site. When counsel sought, during closing argument, to argue strict liability based solely on ownership, the court directed counsel to argue how Crofton had proved actual dumping by the defendants. The court stated that Crofton had "to prove precisely who was the responsible person.” When counsel for Crof-ton branded as immaterial the ownership of the property and its operation by Ratrie and Mitchell, the court said, "I am afraid we are going to get unfocused ... we are jumbling it together.” Counsel for Crofton stated:
Well, the problem with separating it, and I understand the Court's concern is that there is liability because of ownership and owner liability because of operation, and for the period between the early 1980 to 1985 Mitchell owned and Ratrie operated and so by its nature it jumbles.
The court then redirected the argument, "No, it doesn’t jumble because of the first question from a factual point of view, who put the TCE there and then we'll worry who owned the property.”
After the parties conceded that TCE had been dumped at the site, the court stated, "what's material is what was there, there was some TCE there, and we are trying to find out who put it there.” As counsel for Crofton attempted to demonstrate its proof of actual disposal through circumstantial evidence, the court rejected the evidence as inadequate and stated, "[T]he sugar fairy didn't put it there. Somebody put it there, and it wasn't [Crofton].” As his final statement on the issue to the court, counsel for Crofton argued,
The proposition we are now talking about is whether TCE containing drums were put on the dump site between '77 and '88 with, I guess an understanding, my understanding that the evidence is that there was no — once the still came in — but I don’t think that is important.
In a subsequent exchange with counsel for Mitchell, the court reaffirmed its limited interpretation of CERCLA, as follows:
The court: But it would be reasonable to surmise, again at least 50, 60 drums had TCE based on that. What's the difference if it was one drum. The point is, did you put it there?
Counsel for Mitchell: There is no evidence that we put it there.
The court: That is the whole point. That is why we are here.
As its last point, counsel for Crofton argued more specifically that the law does not require "active disposal” but permits liability upon the establishment of "passive disposal.” Counsel for Crofton stated:
Section 107 focuses liability not only for active involvement in dumping or placing of hazardous waste facility but for the ownership of the facility at the time hazardous waste was spilling or leaking.
Believing this to be a new theory, the court asked why the parties went into the issue of who disposed of the drums and why hadn’t counsel for Crofton mentioned this theory before. Counsel for Crofton said that it gave notice of its theory in the complaint.
The "bombshell” to which my dissenting colleague refers was bringing the realization to the court that the statute’s definition of "disposal” was broader than active dumping and included leaking. The court's misperception of the statute's scope was clearly revealed much earlier when the court stated to the parties that Crofton itself was not a responsible party under CERCLA. "[I]f you are telling me that [Crofton] gets any responsibility in this world for those drums being there, then you are crazy." Yet, counsel for Crofton conceded that as owner of the property it had liability, a prerequisite to seeking contribution. Indeed, counsel for Ratrie agreed, arguing, "Mr. Horisk [of Crofton] testified that he understands that he is a liable party or potentially responsible party under CERCLA as an owner of the property."
Thus, any unfairness resulted from the limited interpretation of CERCLA, not from a change of theory.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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MICHAEL, Circuit Judge,
dissenting in part and concurring in part:
In a four-day trial that was fair to both sides, the defendants successfully defended the case Crofton asserted against them, which included a CERCLA claim that they dumped drums contaminated with TCE on a parcel of land in Anne Arundel County, Maryland. The majority nevertheless concludes that a remand of the CERCLA claim is necessary because the district judge did not understand the bases of liability under the Act and therefore failed to assess the evidence properly in making his factual findings. I respectfully disagree. While the evidence was being presented at trial, Crofton’s theory was that the defendants dumped the TCE-filled drums on the site during the time they owned or operated it. During closing arguments, however, Crofton attempted to raise a new theory of liability based on passive disposal, that is, the leaking of TCE. I agree with the district judge’s refusal to indulge this belated change in theory because of the prejudice to the defendants, who had defended a different case. In focusing on the case that was actually tried, the judge concluded that Crofton failed to prove by a preponderance of the evidence that contaminated drums were placed on the site during the time the defendants were responsible. This finding was not clearly erroneous. I would therefore affirm the judgment in favor of the defendants.
I.
The remand ordered by the majority gives Crofton the chance to have its case reconsidered under a new (and perhaps less burdensome) theory, that TCE leaked from the drums during the time that the defendants owned or operated the site. This is fundamentally unfair because Crof-ton waived the passive disposal theory of liability by failing to raise it until closing argument in a five-day trial.
In an extended closing argument session, Crofton’s lawyers spent most of their time trying to convince the district judge that the defendants were responsible for dumping the drums found at the site. Then, at the very end, one of Crofton’s lawyers said, “I want to take a step back ... and kind of drop a bomb shell on this Court .” He explained that he wanted to include the passive disposal (or leaking) theory of liability in his argument. The defendants’ lawyer objected to the introduction of this theory, saying that Crofton had not based its case on passive disposal. The defense pointed out, for example, that there had been “[n]o discovery about passive disposal.... If there had been, we would have had lots of testimony on it.” The district judge, who was immediately concerned because the defendants had no notice of the passive disposal theory, said:
It is a little bit strange here, this [passive disposal] concept for the first time in final argument. Why did we go through four days of testimony without hearing about it? I don’t understand. ... Why didn’t you mention this before? ... It would [be] nice if they [defendants] knew what they were trying — if they really knew they were going to try that issue.
The judge nevertheless allowed Crof-ton’s lawyer to attempt to identify evidence of leaking. In the end, however, the judge returned to the notice problem:
I cannot believe in final argument you are going to be able to change this case from what everybody tried it to something that nobody tried.... I am sorry. It is absolutely not the slightest notice that this [passive disposal] was going to be tried.... It is not an additional argument. It is a totally different case than what they [defendants] thought they were trying. You look at the pretrial order. You don’t see the slightest reference to this.... I got to tell you I didn’t have to listen to all that stuff I heard for the last three years. It is a totally different ease. Secondly, it wasn’t even raised in argument with regard to liability; so let’s proceed. I cannot allow you to amend the pleadings and do this at this time. This is unconsci[o]nable; un-consci[o]nable. Unconsci[o]nable. I can’t do it.
It was thus clear to the trial judge that leaking was never an issue in the case. The record supports the judge’s understanding. The passive disposal theory did not surface in discovery or in any other pretrial proceeding. And most important, at trial Crofton did not indicate during opening argument or at any other time before the close of evidence that it intended to base liability on leaking.
I agree with the majority that a number of events or acts can constitute “disposal” for purposes of CERCLA liability. This, however, does not excuse a plaintiff from giving a defendant notice of the particular theory or theories of disposal being pressed in a given case. CERCLA provides that “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of’ is liable for cleanup costs and other damages. 42 U.S.C. § 9607(a)(2). The term “disposal” means:
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
42 U.S.C. § 6903(8). Different cases present different grounds for disposal liability. Not every case involves facts suggesting both active disposal (for example, dumping or placing) and passive disposal (for example, leaking or spilling). See, e.g., Kaiser Aluminum, & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1342 & n. 7 (9th Cir.1992) (declining to consider the question of passive migration because plaintiff alleged active disposal, specifically, that defendant excavated contaminated soil and spread it over a clean part of the property); Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 844-46 (4th Cir.1992) (holding individual defendant liable because hazardous substances were leaking from tanks during the time that he owned the property, even though he did not handle the tanks). Crofton chose to frame and try its case as one involving active disposal only. The defendants responded accordingly. They did not pursue discovery on the issue of leaking, nor did they present evidence at trial to rebut a theory of leaking. This was not an oversight by the defendants, who legitimately believed that they were only facing a charge of active disposal. Crofton should not be permitted to argue now that this is a passive disposal case requiring only a showing that the TCE leaked into the environment during the time of the defendants’ ownership or operation. Indeed, it is unprecedented to allow Crofton to make such a prejudicial change in its theory — in its own words, to “drop a bomb shell” — at this late stage. See, e.g., Savarin Corp. v. Nat’l Bank of Pak., 447 F.2d 727, 732 (2d Cir.1971). The district judge was correct to conclude that Crofton waived the passive disposal theory of liability.
Moreover, the district judge was correct in his observation (during closing argument) that there was insufficient evidence to establish that TCE leaked from the drums during the time the defendants would have been responsible. Crofton points to the drum log and groundwater test results for evidence of leaking. See Br. of Appellant at 26; Reply Br. of Appellant at 6. The drum log describes drums in various states of damage or deterioration, including crushed, split, or leaking. The log, however, revealed only what was seen. The log was not based on any scientific analysis. Furthermore, because the log was prepared at the time of the cleanup in 1995, it does not address whether any leakage occurred earlier when the defendants owned or operated the site. The groundwater test results do show TCE contamination, but the testing was conducted after the drums had been removed. Tr. 328-29. The expert reports indicate that Crofton had not done any soil or groundwater sampling before the cleanup. See Expert Report of Bruce Monteith, Pl.’s Ex. 35 A., at 6-7; Expert Report of Joseph P. Lewandowski, Def. G & H’s Ex. 39, at 5, 10. In addition, the groundwater test results are irrelevant to the issue of leaking. That evidence was introduced for the sole purpose of proving that the drum removal complied with the National Contingency Plan (NCP), an issue that the district judge never reached. Before Crof-ton’s expert testified as to the groundwater test results, the judge ruled that the evidence could only be used to prove compliance with the NCP. Tr. 327, 329-30. All of this reveals that even if the issue of leaking is considered, the evidence, as the district judge recognized, is not sufficient to establish that the defendants are liable for passive disposal.
II.
It is beside the point to say, as the majority does, that the facts presented by Crofton “easily permit a factfinder to conclude” that TCE was placed on the site when defendants owned or operated it. Ante at 299. The record reveals that the district judge understood the bases of liability under CERCLA and that he made factual findings that were keyed to the case presented and the liability standards spelled out in the Act. We review factual findings for clear error. See Fed.R.Civ.P. 52(a) (“Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”). The district court’s factual findings are not clearly erroneous.
The majority contends that the district judge erred because he required “Crofton to show that the defendants themselves actively dumped the TCE at the site or otherwise were involved in the dumping .” Ante at 299. Although the district judge focused on whether Crofton proved that the defendants dumped the TCE on the site, this does not mean that the judge misunderstood the law. The judge was merely analyzing the case according to Crofton’s theory, specifically, that the defendants had produced the TCE and then illegally dumped it on another part of their property after 1977. See R. vol. 9 at 51 (closing argument by Crofton’s lawyer) (“We believe [the drums] all came from the asphalt plant that was constructed by Mr. Mitchell in 1977_”). Based on the case that Crofton presented, the judge framed the “central question” as “whether Plaintiff has proved the alleged dumping in the post 1976 period.” J.A. 826. See also J.A. 825 n. 14 (“[A]s discussed herein, the Court concludes that Plaintiff has failed to prove that there was any TCE dumping on the Site after 1977....”). The judge rejected some of the evidence because it did not shed light on when the dumping occurred. See J.A. 833 (“[I]t would be more likely that drum dumping took place prior to 1977, while the dump site area was denuded from strip mining, rather than later, close to 1984, after the vegetation had regrown.”); J.A. 834 (“The presence of [the fully corrugated] drums indicates that the dumping (at least of these drums) took place a long, long time ago.”); J.A. 835 (“[I]t would have been simple, yet potentially significant, to have preserved evidence of ... the vintage of the tires.”).
In a 31-page opinion the district judge explained in detail why he concluded that Crofton did not prove its active disposal case by a preponderance of the evidence. The first problem was “the absence of reliable proof of the location and size of the dump site.” One of Crofton’s assertions was that before 1977 heavy vegetation surrounding the dump site prevented trucks from driving to the site and unloading the drums, but that by 1984 the area was cleared and easily accessible. This, according to Crofton, allowed the inference that the drum dumping took place after 1977. But there was confusion in Crof-ton’s case about the location of the site. Crofton’s expert on aerial photographs placed the dump site at a location on the 1984 aerial photograph that was different from the location he identified on the 1968 and 1977 photographs. See R. vol. 8, ex. 3B-3D. Because of this confusion, the judge concluded that Crofton’s “argument [that the dumping took place after 1977] based upon the alleged progressive changes in the dump site [from heavily vegetated to cleared] totally lacked an evi-dentiary foundation.” The second problem was that much of the evidence that would have established the timing of the dumping either was not fully analyzed or was lost during the cleanup process. Crofton failed to present an expert analysis on the degradation of the drums and failed to specify how many drums were fully corrugated (in use in the 1930s and 1940s) and how many were semi-corrugated (in use later). Crof-ton likewise did not preserve evidence removed from the dump site that would have shed light on when the dump site was in use. This evidence included tires, mud flaps, road signs, and junked household appliances. The final problem was that Crofton’s evidence regarding the defendants’ involvement in the dumping was too speculative. The deposition of a former employee of the defendants supported Crofton’s case, but the judge considered the employee’s testimony unreliable because the defendants had fired him after he was caught stealing. The judge concluded that the remaining evidence created no more than a suspicion that the defendants dumped their TCE waste at the site. Crofton has not pointed to any record evidence that would fill the gaps in proof that the district judge identified.
Not once in part II does the majority mention the clearly erroneous standard of review, nor does it apply that standard. It is not enough to say, as the majority does, that a factfinder could conclude that TCE was placed on the site while the defendants owned or operated it. This is not the standard that governs our review. The district judge, who heard four days of testimony and studied almost one hundred exhibits, found that Crofton did not prove a case of active disposal. After reviewing the evidence and giving “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses,” I am firmly convinced that the district judge did not commit clear error in finding that Crofton did not prove its case. Fed. R.Civ.P. 52(a). See also Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
III.
This appeal at the core is not about CERCLA. It is about whether the defendants won according to rules governing the trial of a lawsuit and any appeal from the judgment. These rules are that a defendant is entitled to fair notice of the plaintiffs theory of liability at trial and that findings of fact are reviewed on appeal for clear error. Because the defendants won the case according to these rules, the majority’s remand of the CERCLA claim is simply wrong. I therefore respectfully dissent from parts I and II of the majority opinion, which govern the remand. I concur in part III, which affirms the judgment in favor of the defendants on Crofton’s common law claims.
. I respectfully disagree with the majority's assertion that the ''bombshell'' Crofton "dropped” in closing argument did not signal a new theory but rather was "advice to the district court that the court was reading CERCLA too narrowly.” Ante at 298 n. 3. Crofton was advancing a new theory, and the district judge did not misunderstand the law. As the judge recognized, "If any of the liquid leaks out, any of the TCE leaked out of the drum before [Crofton] moved it, that there would have been passive disposal.” Thus, he did not read CERCLA too narrowly. The judge's ultimate rejection of the passive disposal or leaking theory rested on Crofton’s delay in introducing the specific theory. In response to the judge's inquiry about why Crofton had never before mentioned leaking, its lawyer said only that the complaint, which used the general statutory term "disposed of,” was sufficient. The general language in the complaint, however, did not excuse Crofton from giving the defendants and the court reasonable notice as to which of the several statutory definitions of "disposal” it was basing its case upon. Leaking is not a "lesser included burden of proof," as the majority suggests, ante at 298 n. 3, but a separate ground for liability. It might be easier to prove leaking than dumping in some cases, but the defendant is still entitled to know whether the plaintiff's theory of the case includes leaking.
. The trial judge's comments that the majority includes in its footnote 3 did not result from any "limited interpretation of CERCLA.” Ante at 298 n. 3. Rather, they were made in reference to Crofton's theory that the defendants themselves placed the contaminated drums on the site. See R. vol. 9 at 7 (closing argument by Crofton's lawyer) ("[M]y argument it would be what's in the drums, who put them there, who knew about it and who cleaned it up.”); R. vol. 9 at 93-94 (judge's statement during closing argument) ("[Crof-ton’s lawyer] just went through a long list which said it is evidence from which I should find that you [defendants] put it there.”). Notwithstanding Crofton’s theory, the judge recognized that Crofton could prove an active disposal case by showing that some person, not just the defendants, placed the contaminated drums on the site while the defendants owned or operated it. As a result, the judge focused his analysis on the timing of the dumping. See, e.g., R. vol. 9 at 11 ("Why don’t we start with the proof that it was put there between '77 and '88.... ”).
According to the majority, the judge's comment that Crofton had no "responsibility” reveals the "court's misperception of the statute's scope.” Ante at 299 n. 3. The majority, I believe, has misconstrued the judge’s statement. It is true that as the current landowner Crofton is liable for cleanup costs under CERCLA. 42 U.S.C. § 9607(a)(1). But the judge was not referring to this technical statutory meaning. Instead, he was using the ordinary meaning of “responsibility.” See R. vol. 9 at 4-5 ("[Crofton] is innocent as I use the term. That may not be precisely the right word when you get down to it.”). In fact, the judge's ruling against Crofton even though he considered Crofton "innocent” shows that the judge understood CERCLA's strict liability scheme.
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ORDER
The Secretary and other appellees have requested us to dissolve the district court’s injunction preventing the Secretary of the Interior and the Director of the Minerals Management Service from conducting Lease Sale 92. Tribal Village of Akutan v. Hodel, Nos. A85-701, J85-037, J85-038 (D.Alaska Mar. 15, 1988) (injunction pending appeal). We construe appellees’ request as a motion to stay the injunction pending remand to the district court, which may then vacate the injunction in light of our opinion. We have the power to “suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.” Fed.R. Civ.Proc. 62(g). This rule, along with Rule 62(c), “codifies the inherent power of courts to make whatever order is deemed necessary to preserve the status quo and to ensure the effectiveness of the eventual judgment.” C. Wright & A. Miller, 11 Federal Practice and Procedure, § 2904 at 315 (1973). See also Plomb Tool Co. v. Fayette R. Plumb Inc., 171 F.2d 945 (9th Cir.1948).
In determining whether to stay the injunction, we apply the standard employed by district courts when considering a motion for a preliminary injunction. Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir.1983). In this circuit, to meet the criteria for preliminary injunctive relief, the moving party must demonstrate “either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor.” Los Angeles Memorial Coliseum Comm’n v. NFL, 634 F.2d 1197, 1201 (9th Cir.1980). The court may also consider the public interest in certain cases. Id. at 1200.
In granting appellants’ motion for an injunction pending appeal, the district court determined that the case presented “close and troubling questions,” and that we would be likely to issue an injunction if appellants prevailed on one of their claims. Furthermore, the district court concluded that the balance of irreparable injury and the public interest tilted “by a small degree” in favor of the appellants, as the significant costs of delay suffered by the appellees were subordinate to the policies of NEPA, OCSLA and ESA. Tribal Village of Akutan v. Hodel, No. A85-701, J85-037, J85-038 (D.Alaska Mar. 15, 1988), at 3, 5.
Our analysis of the same factors leads us to a different result at this stage of the proceedings. We have ruled in favor of the appellees on the merits. Tribal Village of Akutan v. Hodel, 859 F.2d 651 (9th Cir.1988). Appellees have also shown that the balance of hardships now tips in their favor. According to appellees, if the present injunction is left in effect through the fall, preliminary activities will probably be delayed until Spring 1989, and exploratory drilling will not begin until Spring 1990. The injunction has already delayed exploration in the area for two years; the cost of another year’s delay would not be recoverable. By contrast, appellants will suffer no hardship if the injunction is lifted, as none of the activities of the lease sale stage results in harm to the environment. Proceeding with the preliminary activities will make more data available for evaluating the risks of environmental harm at the next phase of oil development. As no danger to the environment stems from the lease sale stage, the public interest in favor of developing oil and gas reserves also weighs on the side of lifting the injunction.
Because appellees have prevailed on the merits and the balance of hardships clearly tips in their favor, we grant a stay of the injunction pending remand to the district court.
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JON 0. NEWMAN, Chief Judge:
This case is before the Court upon the petition of Ciba-Geigy Corporation and Hercules Incorporated (collectively “Ciba”), the current and past operators of a hazardous waste site in Glen Falls, New York, for review of a Memorandum of Agreement between the Environmental Protection Agency and New York State, a decision of the Environmental Appeals Board, and two decisions of the EPA Regional Administrator. In each challenge, Ciba seeks to vindicate a narrow legal point: its contention that EPA cannot administer federal permits for hazardous waste sites in states that have their own federally approved hazardous waste programs under the Hazardous and Solid Waste Amendments (“HSWA”) to the Resource Conservation and Recovery Act (“RCRA”). Because we conclude that Ciba has partially failed to exhaust administrative remedies, we dismiss the petition in part. As to the remaining aspects of the petition, we conclude that EPA’s construction of RCRA is permissible, and deny the petition.
Background
A brief review of the underlying statutory scheme will be helpful in understanding our disposition of this petition.
A. RCRA permits
RCRA established “a comprehensive ‘cradle-to-grave’ system for regulating the management of hazardous wastes.” 1 Susan M. Cooke, et al., The Law of Hazardous Waste § 1.01 at 1-4 (1993). The statute regulates generators of waste, transporters of waste, and operators of waste treatment, storage, and disposal facilities. See 42 U.S.C.A. §§ 6922-24 (West 1983 & Supp.1993). Facility operators are required to obtain an operating permit. See 42 U.S.C. § 6925(a) (1988).
The statutory scheme contemplates an eventual delegation of permit-issuing authority from EPA to the states. States may submit to the EPA Administrator details of a proposed state hazardous waste program. 42 U.S.C. § 6926(b) (1988). The program must be “equivalent” to the federal RCRA program. Id. § 6926(b)(1). If the Administrator approves the program, the state carries out its program “in lieu” of the federal program. Id. § 6926(b). In particular, the state is responsible for the issuance and administration of permits. Id. However, even after approval of a state program, EPA retains significant involvement. EPA may bring enforcement actions, see 42 U.S.C. §§ 6928, 6973 (1988), and may inspect and monitor sites, see 42 U.S.C.A. §§ 6927, 6934 (West 1983 & Supp.1993). See generally Wyckoff Co. v. E.P.A., 796 F.2d 1197, 1200-01 (9th Cir.1986) (EPA may issue order under 42 U.S.C. § 6934 requiring operator to perform monitoring and report results to EPA even after state authorization).
The original version of RCRA primarily concentrated on ongoing management of hazardous wastes, and did not provide authority for mandating corrective action to cure past mismanagement of waste. Congress acted to close this gap in 1984 with enactment of HSWA. Among other requirements, HSWA requires that permits for facilities with an existing hazardous waste problem include a schedule for cleaning up the wastes. See 42 U.S.C. § 6924(u)-(v). HSWA also significantly complicated the division of authority between the federal government and the states. Concerned that regulations promulgated under HSWA be implemented as quickly as possible, Congress provided that new federal HSWA regulations would take effect in all states simultaneously, whether or not the state had an approved program under section 6926(b). See 42 U.S.C. § 6926(g)(1) (1988); Cooke § 1.03[3], at 1-20 to 1-21. If states wish to take over administration of these new regulations, they must amend their hazardous waste programs so as to be “substantially equivalent” to the federal HSWA regulations. Once this amendment is accomplished, the state may apply to the Administrator for “interim authorization ... to carry out [the state] requirement in lieu of direct administration in the State by the Administrator of [the federal] requirement.” Id. § 6926(g)(2). Eventually, states wishing to administer these regulations must adopt regulations fully equivalent to federal HSWA regulations, and obtain final authorization for the state HSWA program under section 6926(b).
In states that have obtained RCRA authorization under section 6926(b) but have not obtained authorization for HSWA regulations, whether under section 6926(g)(2) or section 6926(b), operators of most hazardous waste sites are required to obtain permits from both the state and EPA. See American Iron and Steel Institute v. U.S. E.P.A., 886 F.2d 390, 403 (D.C.Cir.1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); Cooke § 5.03[1], at 5-53 to 5-54. In practice, these dual permits apparently tend to overlap considerably and may even impose conflicting requirements since “[i]t is not uncommon for the state and EPA to have different views on the same substantive issue. When this occurs, the applicant may get whipsawed between the two agencies.” See John C. Chambers, Jr. & Peter L. Gray, Intergovernmental Relations: EPA and State Roles in RCRA and CERCLA, Nat. Resources & Env’t, July 1989, at 7.
The statute does not contain specific provisions concerning the status of existing federal permits after a state obtains HSWA authorization under section 6926(g)(2) or section 6926(b). Under regulations adopted by EPA, the state is required to reissue permits to existing permittees. 40 C.F.R. § 271.-13(d). These state RCRA permits contain the requirements of both the previously issued state and federal permits. Id. At some point after issuance of the state RCRA permit, EPA will terminate the previous federal permit. See 40 C.F.R. § 271.8(b)(6).
B. The New York program
By 1986, the New York Department of Environmental Conservation (“DEC”) had obtained authorization under section 6926(b), and thus ran the RCRA permitting process in New York. Following enactment of HSWA and the issuance of federal HSWA regulations, DEC adopted new regulations, and applied in September 1991 for authorization to administer these regulations. After a public comment period, the Administrator granted DEC “final authorization” on May 22, 1992.
This authorization is reflected in a Memorandum of Agreement (“MOA”) between EPA and DEC. The MOA includes provisions that concern the transfer and administration of existing federal permits. It appears to provide that while all pending permit applications will be transferred to DEC, existing federal permits will continue to be administered by EPA. Once DEC issues new permits containing all applicable requirements, EPA will consider termination of the federal permits on a case-by-case basis.
C. The pending dispute
Ciba owns a paint pigment production facility in Glen Falls, New York. Various waste products were impounded at the site, largely in an open lagoon. In 1989, Ciba decided to close the site, and applied to DEC for an appropriate permit. Because the site contained hazardous wastes and DEC was not yet authorized to administer HSWA regulations, both DEC and EPA issued draft permits. The permits are in large measure identical, because DEC included clean-up requirements, as it had the right to do. Ciba submitted comments requesting that EPA not issue a permit. EPA responded that it could not accede to the request since the DEC permit might not cover all necessary requirements; EPA issued a federal permit in October 1991. Ciba sought review of the federal permit from the EPA Administrator. During the pendency of the review process, the federal permit was automatically stayed. Ciba made two arguments in its review petition. It contended that the federal permit was improper because it substantially duplicated the state permit. It also contended that even if the federal permit could be issued prior to authorization of the New York HSWA program, the federal permit was required to contain an automatic termination provision triggered by state authorization. The Environmental Appeals Board (“EAB”) denied the petition in a written opinion. Matter of CIBA-GEIGY Corp., RCRA Appeal No. 91-28 (Apr. 7, 1992). The EAB found (a) that EPA was required to administer the HSWA program prior to state authorization, even if the state had adopted substantially similar requirements and had included those requirements in its permit, and (b) that there was no requirement that the federal permit have an automatic termination provision. The EAB suggested that the termination of the federal permit would be resolved by the MOA between the state and EPA, or otherwise would be resolved by EPA after state authorization. The federal permit accordingly became effective (after some minor delays) on May 8, 1992 — some two weeks before New York received authorization to administer its HSWA program. On July 2, 1992, Ciba requested that the Regional Administrator terminate the federal permit in light of the intervening authorization of the New York program. The Regional Administrator did not formally respond. However, counsel to the Regional Administrator stated in a phone call to counsel for Ciba that the Regional Administrator’s lack of a response should be treated as a denial of the request.
DEC has not yet issued a new post-authorization permit to Ciba. Although EPA has suggested that it would voluntarily terminate the federal permit upon issuance of a new state permit to Ciba, EPA has also indicated that because New York is not authorized to administer 100 percent of HSWA requirements, some type of federal permit might remain necessary to cover those areas in which New York lacks authorization. However, EPA has never identified any specific HSWA requirements relevant to Ciba that only it can enforce.
On August 5, 1992, Ciba petitioned this Court pursuant to 42 U.S.C. § 6976(b) (1988) for review of (1) the EAB decision rejecting the petition for review of the October 1991 decision to issue the federal permit, (2) the May 1992 decision of the Regional Administrator to terminate the stay of the permit, (3) the July 1992 refusal of the Regional Administrator to terminate the permit upon request, and (4) the portions of the MOA failing to provide for automatic termination of a federal permit. For relief, Ciba requests that the permit be set aside or that the MOA be modified to provide for termination.
Discussion
A. Exhaustion
At oral argument, the Court inquired of Ciba whether it had exhausted administrative remedies as to each of the three permitting decisions. We felt obligated to raise the issue sua sponte, since it directly related to the suitability of these matters for judicial review. See Dettmann v. United States Department of Justice, 802 F.2d 1472, 1476 n. 8 (D.C.Cir.1986). After reviewing Ciba’s post-argument submission, we have concluded that of the permitting decisions, only the original decision to issue the permit is properly before us.
As an initial matter, we believe that there are really only two permitting decisions that Ciba seeks to challenge. This is because the second of the decisions — the Regional Administrator’s May 1992 termination of the stay — is not meaningfully distinct from the two other permitting decisions. To the extent Ciba is complaining that the permit should not have been issued initially, that issue is brought before us by the petition for review of the October 1991 decision approved by the EAB. To the extent Ciba is complaining that new evidence — the authorization of New York’s HSWA program in late May 1992 — required that the permit not be made effective, that issue is presented by the July 1992 request to the Regional Administrator to terminate. The only sense in which the May 1992 decision is distinct from the July 1992 decision is that the Regional Administrator then chose to follow EPA regulations for lifting a stay after a challenged permit was affirmed by the EAB. See 40 C.F.R. § 124.16. We do not understand that Ciba wishes to challenge those regulations.
As to the two permitting challenges at issue, we conclude that administrative remedies have been exhausted as to the October 1991 decision but have not been exhausted as to the July 1992 decision. These conclusions stem from two' sources. First, the relevant statute authorizes us to review only the “Administrator’s action ... in issuing, denying, modifying, or revoking any permit.” 42 U.S.C. § 6976(b)(1) (emphasis added). The EAB’s decision rejecting Ciba’s petition for review of the original issuance of the permit constitutes action of the Administrator. See 40 C.F.R. § 22.04(a). However, the remaining two actions are actions by the Regional Administrator, Constantine Sidamon-Eristoff.
Second, EPA has adopted regulations creating express exhaustion requirements. For issuance of a permit, appeal to the EAB is a “prerequisite to the seeking of judicial review of the final agency action.” 40 C.F.R. § 124.19(e). Ciba has complied with this requirement. However, Ciba has failed to comply with the parallel requirement for review of the Regional Administrator’s refusal to terminate the permit. Such review is provided under 40 C.F.R. § 124.5(b), which allows an “informal appeal” to the Administrator of a Regional Administrator’s refusal to terminate a permit. The regulation further provides that “[tjhis informal appeal is, under 5 U.S.C. § 704, a prerequisite to seeking judicial review.” Id. In its post-argument submission, Ciba argues that 40 C.F.R. § 124.5(b) is inapplicable because it applies only to requests to terminate under 40 C.F.R. § 124.5(a), and the request to terminate the federal permit because of approval of the state program could not have been made under section 124.5(a). We disagree. Section 124.5(a) provides that RCRA permits may be modified or terminated for the reasons specified in 40 C.F.R. §§ 270.41, 270.43. Section 270.41, in turn, provides that modification requests by the permittee are governed by 40 C.F.R. § 270.42, which allows for modification requests of any type, see id. § 270.42(d). While Ciba appears to be correct that the regulations contemplate termination per se only at the request of EPA, and only for egregious wrongdoing by the permittee, see 40 C.F.R. § 270.43, Ciba’s goal of terminating the permit can be achieved by modifying the expiration date of the permit (which is currently November 12, 1996). Accordingly, the proper course for obtaining review of the refusal to terminate is to make a formal request under section 124.5(a) for a modification of the expiration date in compliance with the procedures outlined in section 270.42. If the Regional Administrator rejects the request, an informal appeal to the Administrator should be taken under section 124.5(b). Review would then be available in this Court under 42 U.S.C. § 6976(b)(1).
In its post-argument submission, Ciba also argues that EPA, by failing to mention exhaustion in its brief, has waived any defense based on exhaustion. Ciba is correct that under limited circumstances, an agency can waive an exhaustion defense. See Weinberger v. Salfi, 422 U.S. 749, 764-67, 95 S.Ct. 2457, 2466-68, 45 L.Ed.2d 522 (1975); 4 Kenneth C. Davis, Administrative Law Treatise § 26:8, at 445 (1983). In Salfi, the Supreme Court reviewed the constitutionality of a Social Security Administration decision denying survivor’s benefits to a widow on the ground she had been married to the deceased for less than nine months before his death. Although the petitioner had clearly not exhausted her claim within the agency, the Court found review appropriate because the Secretary had not raised an exhaustion defense, the applicant had presented “her claim at a sufficiently high level of review to satisfy the Secretary’s administrative needs,” and the Secretary had determined that “the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine,” and that the claim was otherwise valid. Salfi, 422 U.S. at 765, 95 S.Ct. at 2467. We believe that Salfi is distinguishable and that additional agency review would be quite helpful. The regulatory scheme is complex, the agency must construe both the statute and its own regulations, and no severable constitutional issue is presented.
B. Ripeness
EPA contends that the two remaining challenges — to the original permitting decision and to the MOA — are not ripe for adjudication by this Court. EPA points out that Ciba has identified no inconsistency between the state and federal permits and does not object to any specific decision requiring it to take any particular action in operating or cleaning up the site. Because Ciba seeks only to avoid the possibility of some future dispute, EPA asks that we dismiss the remaining portions of the petition as non-justi-ciable.
EPA relies on decisions under the Administrative Procedure Act that provide that agency action is not ripe unless the issue presented (i) is fit for judicial determination, in the sense that further factual development would not be helpful, and (ii) the withholding of court consideration would cause a hardship. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). Arguably, decisions like Abbott Laboratories have limited relevance to Ciba’s challenges, since RCRA specifically authorizes review in the Court of Appeals of the “Administrator’s action (1) in issuing, denying, modifying, or revoking any permit under section 6925 ..., or (2) in granting, denying, or withdrawing authorization or interim authorization under section 6926.” 42 U.S.C. § 6976(b). Thus, this may be a situation in which “Congress explicitly provides for our correction of the administrative process at a higher level of generality,” see Lujan v. National Wildlife Federation, 497 U.S. 871, 894, 110 S.Ct. 3177, 3191, 111 L.Ed.2d 695 (1990), than the usual ripeness test demands. But see W.R. Grace & Co.— Conn. v. U.S. E.P.A, 959 F.2d 360, 364-67 (1st Cir.1992) (applying general test of ripeness to permit dispute reviewable under 42 U.S.C. § 6976(b)(1)).
Even under the general test, however, we believe that the original permitting decision reviewed by the EAB is ripe for review. As to fitness, the issue is fairly well developed. We are well past the point where the agency has merely taken the position that it has the power to issue duplicative federal permits. Rather, the agency has issued the duplicative permit. In contrast to W.R. Grace & Co.-Conn. v. U.S. E.P.A, 959 F.2d 360 (1st Cir.1992), in which the First Circuit declined to review a dispute over the mode of review of EPA modifications to a permit prior to the proposal of any actual modifications, it is difficult to see in this case how further factual development would make the legal question more fit for judicial review. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 81-82, 98 S.Ct. 2620, 2634-35, 57 L.Ed.2d 595 (1978); American Petroleum Institute v. U.S. E.P.A., 906 F.2d 729, 739 (D.C.Cir.1990) (“a ‘purely legal question’ ... is ‘presumptively reviewable’ ”). As to hardship, Ciba points out that even if the federal permit does not impose different substantive requirements, it imposes burdensome procedural requirements. Ciba will be required to submit additional copies of all its plans, and await the approval of EPA before it can perform remediation activity. Whether duplicate filing obligations alone would suffice to warrant judicial review is debatable, but the need to await agency approval before taking action entitles Ciba to secure review of the agency’s assertion of jurisdiction. That this dispute can grow worse does not mean that hardship does not exist now. See Central Hudson Gas & Electric Corp. v. U.S. E.P.A., 587 F.2d 549, 558-60 (2d Cir.1978) (finding ripe EPA’s assertion of jurisdiction to issue Clean Water Act permit, despite authorization of state program, prior to issuance of federal permit); Sayles Hydro Associates v. Maughan, 985 F.2d 451, 453-454 (9th Cir.1993) (federally licensed dam operator could challenge state permitting requirement on preemption grounds without awaiting state’s imposition of inconsistent requirements under its permit); see generally Natural Resources Defense Council, Inc. v. U.S. E.P.A., 859 F.2d 156 (D.C.Cir.1988) (in some cases, regulations requiring certain conditions in permits are ripe for review even before issuance of permits).
EPA also contends that Ciba’s challenge to the MOA is not ripe. However, EPA’s actual argument appears to be a standing argument: that Ciba may not challenge the MOA because it “has no impact on Ciba’s conduct.” EPA Brief at 23. EPA does not appear to contemplate that Ciba would be able to challenge the MOA itself at a later date. Instead, EPA insists that Ciba must await specific action by some agency under the MOA, and then may challenge that action. While we agree with EPA that any injury suffered by Ciba as a result of the MOA is slight, RCRA authorizes “any interested person” to challenge EPA’s action in “granting, denying, or withdrawing authorization or interim authorization under section 6926.” 42 U.S.C. § 6976(b). The MOA is the means by which EPA grants authorization under section 6926. See 40 C.F.R. §§ 271.8, 271.126. We do not believe that standing is lacking in a constitutional sense, since Ciba has suffered at least the minimal injury of being subjected to dual approval requirements and duplicative submission requirements, and because a change in the MOA would remedy Ciba’s slight injury.
C. Merits
Ciba’s surviving challenges on the merits present extremely narrow questions: whether EPA must include an automatic termination provision, triggered by state authorization, in pre-authorization federal permits, and whether an MOA must provide for the immediate termination of pre-existing federal permits. It is important to recognize what is not before us: the permissibility of EPA’s general policy of continued administration, and perhaps issuance, of federal permits in authorized states. Most of Ciba’s arguments are devoted to that question, a particularly difficult question since the lack of exhaustion has failed to make completely clear what EPA’s position is on this question. However, we will consider in turn each of Ciba’s arguments as they apply to the narrow questions before us.
1. Judicial estoppel. Ciba’s first argument is judicial estoppel. This argument rests on the contention that EPA took a position inconsistent with its current position in two District Court cases, Chemical Waste Management, Inc. v. Templet, 770 F.Supp. 1142 (M.D.La.1991), aff'd, 967 F.2d 1058 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1048, 122 L.Ed.2d 357 (1993), and Thompson v. Thomas, 680 F.Supp. 1 (D.D.C.1987). This argument is unavailing. EPA was not even a party to the Chemical Waste Management case. In the Thompson case, which involved an attempt to force EPA to take discretionary enforcement actions against a dump, EPA argued that such a suit was not authorized by RCRA. The Court agreed, and suggested that the plaintiffs could bring a state court action against the dump in Wisconsin, since Wisconsin was an authorized state. Whatever consequence EPA’s action in this litigation might have for EPA’s broad policy on post-authorization administration, it is not at all relevant to either the question of whether a federal permit must include an automatic termination provision or the question of whether an MOA must provide for immediate termination of a federal permit upon issuance of a state permit.
2. Inconsistency with regulations. Ciba next argues that EPA’s position is inconsistent with 40 C.F.R. § 271.8(b)(6), which provides:
When existing permits are transferred from EPA to the State for administration, the Memorandum of Agreement shall contain provisions specifying a procedure for transferring the administration of these permits. If a State lacks the authority to directly administer permits issued by the Federal government, a procedure may'be established to transfer responsibility for these permits.
Note: For example, EPA and the State and the permittee could agree that the State would issue a permit(s) identical to the outstanding Federal permit which would simultaneously be terminated.
Ciba contends that by adoption of this regulation, EPA committed itself to including termination provisions in federal permits and to immediately terminating federal permits upon state authorization. The simple answer is that this is not what the regulation says. The regulation says nothing about the content of permits. As to MOAs, the regulation requires only that they contain provisions for transfer of existing permits; the content of those provisions is left open. The Note appended to the end of the section only suggests one method. There can be no doubt that the MOA has provisions governing the transfer of existing permits. Ciba just does not like those provisions. Moreover, other regulations adopted by EPA clearly contemplate the continued administration of federal permits after state authorization, at least to the point where the state issues a new state permit. See, e.g., 40 C.F.R. § 270.51(d).
3. Impermissible construction of RCRA. Finally, Ciba contends that EPA’s position is impermissible under the statute. The parties agree that resolution of this question is governed by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct, 2778, 81 L.Ed.2d 694 (1984). Thus, Ciba may prevail only by showing that EPA’s resolution of the issues is directly contrary to congressional intent, or that the statute is silent on the issues and the agency’s resolution is unreasonable. Ciba devotes most of its brief to arguing under the first prong of Chevron. Section 6926(g)(2), which governs interim HSWA authorization, provides that
The Administrator shall, if the evidence submitted shows the State requirement to be substantially equivalent to the [federal requirement], grant an interim authorization to the State to carry out such requirement in lieu of direct administration in the State by the Administrator of such requirement. [Emphasis added.]
Virtually identical language appears in section 6926(b), which governs final authorization. Ciba contends that the emphasized language means that after state authorization, the federal program is entirely displaced and EPA must immediately terminate or transfer any existing permits.
Whatever this statutory language might signify for EPA’s general policies on permit administration, it does not speak to the questions before the Court. The “direct administration” language cannot be read to specify any particular procedure for termination of federal permits, whether by an automatic termination provision in the permit or an immediate termination provision in the MOA, and does not specify any time limit by which federal involvement must cease.
We thus reach the second prong of Chevron. Ciba must show that EPA’s interpretation fails a highly deferential reasonableness test, applied with due regard to the statutory purpose. Congress’ primary purpose in adopting RCRA and HSWA was protection of the environment and public health. While delegation to states was also an important purpose, EPA’s refusal to include a termination provision in the original permit and its refusal to provide for immediate termination of federal permits cannot be said to be unreasonable. Continued administration of federal permits past the immediate moment of state authorization avoids the gap in regulation that might occur if the state failed to immediately' issue a new permit containing all applicable requirements, and allows the state and federal regulators the opportunity to coordinate in an effective manner a gradual transfer of jurisdiction. See Central Hudson Gas & Electric Corp. v. U.S. E.P.A., 587 F.2d 549, 561-62 (2d Cir.1978) (reasonable for EPA to issue federal permits under Clean Water Act, notwithstanding authorization of state permitting program, so as to “allow[] for the smooth transition from federal to state permit program”).
Conclusion
Ciba’s petition for review of the July 1992 refusal to terminate the federal permit and of the May 1992 decision to terminate a stay of the federal permit is dismissed for failure to exhaust administrative remedies. The petition for review of the October 1991 issuance of the permit approved by the EAB in April 1992 and of the May 1992 MOA between EPA and New York is denied.
. All C.F.R. cites are to the July 1, 1992, edition.
. It is not entirely clear from the record whether the May 1992 authorization constituted interim authorization under 42 U.S.C. § 6926(g)(2), as Ciba contends, or whether it constituted final authorization of the state HSWA program under 42 U.S.C. § 6926(b), as EPA contends. We suspect that EPA is correct, since the federal register notice identifies the proposed action as "final authorization,” see 57 Fed.Reg. 9978 (Mar. 23, 1992), and since interim authorization would have expired on January 1, 1993, see 40 C.F.R. § 271.24(c). As will become clear in our later discussion, however, it makes no difference under which section New York has been authorized.
. EPA regulations provide that the Administrator may review permit decisions by Regional Administrators. See 40 C.F.R. § 124.19. Prior to February 13, 1992, this authority was exercised by the Administrator directly in concert with the Agency Judicial Officer. On February 13, 1992, the position of Agency Judicial Officer was abolished, and the Environmental Appeals Board was created to exercise the Administrator's review authority. See 40 C.F.R. § 22.04(a). The Board consists of three environmental judges. Ciba’s petition was filed with the Agency Judicial Officer and determined by the Environmental Appeals Board.
. The mandatory exhaustion language contained in this regulation distinguishes this case from Darby v. Cisneros, - U.S. -, 113 S.Ct. 2539, 125 L.Ed.2d 113 (U.S. 1993), in which a Housing and Urban Development Department regulation provided that parties "may request” administrative review of the decision of a hearing officer, and contained no language identifying this review as a prerequisite to judicial review. In such a case, the Supreme Court held that section 10(c) of the Administrative Procedure Act, 5 U.S.C. § 704 (1988), prohibits courts from engrafting additional exhaustion requirements. Here, in contrast, agency rule, and not judge-made doctrine, is the source of the exhaustion requirement.
. While it is clear that EPA believes it may continue to administer pre-authorization federal permits in authorized states, the exact contours of EPA's position are far from clear. What might be called EPA’s minimum position is that it may administer federal permits in authorized states until the time the state issues a new permit incorporating HSWA regulations. EPA’s maximum position is that it may issue and administer federal permits in authorized states at any time during which, as will inevitably occur, the state has lagged behind EPA in issuing new hazardous waste regulations. Under this approach, the right of EPA to issue and enforce permits would come and go as a regulatory gap opens and closes between state regulations and EPA regulations.
. Specifically, Section VI of the MOA provides that EPA will terminate federal permits ”[w]hen the state either incorporates the terms and conditions of the federal permits in the State RCRA permits or issues State RCRA permits to those facilities.” Section V of the MOA also provides that "[w]henever EPA adds permitting standards for processes not currently covered by State regulations, EPA will process and enforce HSWA permits in the new areas until the State receives final authorization for these standards.”
. Ciba also relies on several decisions more relevant to the question of the permissibility of EPA’s general policies on permit administration. See Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 381-82 (7th Cir.1986) (EPA may not issue new permits in authorized states when those permits concern only those regulations the state is authorized to administer); Dague v. City of Burlington, 935 F.2d 1343, 1348-49 (2d Cir. 1991) (dicta indicating that individuals may not bring direct actions in federal court under 42 U.S.C. § 6972(a) to enforce RCRA regulations after state authorization, but must bring those actions in state court), rev'd on other grounds, — U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). These decisions are not helpful in resolving the very narrow issues before the Court.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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BEA, Circuit Judge:
On July 15, 2003, the Estom Yumeka Maidu Tribe of the Enterprise Rancheria ("Enterprise") asked the Bureau of Indian Affairs (the "BIA"), a part of the United States Department of the Interior, to take a parcel of land into trust for them so that Enterprise could build a casino and hotel complex. In November 2012, after almost ten years of studies, expert reports, meetings, and other regulatory processing, the BIA agreed to the acquisition. Immediately following the BIA's decision, several entities, including the Cachil Dehe Band of Wintun Indians of the Colusa Indian Community ("Colusa"), a nearby Indian Tribe with a casino of its own, and various citizens' groups and individuals opposed to the construction of the Enterprise Casino (together, "Citizens"), alleged a host of errors in the lengthy regulatory process and sued to enjoin the trust acquisition. The district court granted summary judgment in favor of Enterprise. For the reasons that follow, we affirm.
I.
In 1915, a representative of the United States Indian Service visited Enterprise, California, and completed a census of fifty-one Indians "in and near Enterprise in Butte County, California." That same year, the United States purchased two forty-acre parcels of land in trust for Indians living in Enterprise: (1) Enterprise 1, located approximately ten miles northeast of Oroville, and (2) Enterprise 2, located closer to Oroville (together, the "Enterprise Rancheria"). The United States continues to hold Enterprise 1 in trust; however, in 1965, the State of California purchased Enterprise 2 and flooded it to allow the construction of the Oroville dam. The parties agree that since 1915 Indians have been living on the Enterprise Rancheria, and the Enterprise Rancheria is an Indian Reservation.
In 1934, Congress enacted the Indian Reorganization Act, 25 U.S.C. § 5108 et seq., (the "IRA"). Section 18 of the IRA states that the Act "shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application." Id. § 5125. In due course, so-called Section 18 elections were held on Indian reservations around the country, including on Enterprise Rancheria on June 16, 1935.
In 1979, the Department of the Interior began to publish lists of federally recognized tribes in the Federal Register. The "Enterprise Rancheria of Maidu Indians" has appeared on each list from 1979 to the present.
On August 13, 2002, Enterprise submitted a "fee-to-trust" application to the Secretary of the Interior pursuant to the IRA, 25 U.S.C. § 5108, which authorizes the Secretary to take lands in trust for the benefit of "the Indian tribe or individual Indian for which the land is acquired." The application asked the Secretary to accept into trust forty acres of land owned by Yuba County Entertainment, L.L.C., (the "Yuba Site"), located in Yuba County, California, so Enterprise could develop an off-reservation casino and hotel.
There are a number of regulatory hurdles which must be vaulted to take land into trust for off-reservation gaming. While the IRA allows for the Secretary to take land into trust for the benefit of Indians, the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. ("IGRA") generally prohibits gaming on such lands taken into trust after October 17, 1988. However, gaming is permitted if the Secretary determines, after consulting with the "Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes," that the gaming would "not be detrimental to the surrounding community," and if the Governor of the relevant state agrees with the Secretary's determination. 25 U.S.C. § 2719(b)(1)(A). This is referred to as the Secretarial two-part determination.
In addition to satisfying IGRA, more regulatory hurdles remain. The Department of the Interior and the applicant Tribe must satisfy the National Environmental Policy Act, 42 U.S.C. § 4321 et seq , ("NEPA"). NEPA requires that all federal agencies considering actions "significantly affecting the quality of the human environment" prepare a "detailed statement" describing the "environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided should the proposal be implemented," "alternatives to the proposed action," "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity," and "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." Id. § 4332(C). The "detailed statement" is referred to as an Environmental Impact Statement (an "EIS").
These various statutory and regulatory requirements created a lengthy administrative process.
First, on August 13, 2002, Enterprise submitted its "fee-to-trust" application to the Secretary of the Interior. The application requested that Interior take title to the Yuba Site in trust so that the Tribe could build a 207,760 square foot casino and accompanying hotel. The application included a December 2001 document entitled "Gaming and Hotel Market Assessment: Marysville, California," prepared by The Innovation Group. The assessment evaluated ten market areas in northern California, analyzed the characteristics of other existing tribal casinos, and estimated revenues and expenses for a casino/hotel for 2004-2008.
Second, Enterprise retained a consultant, Analytical Environmental Services ("AES"), to submit a draft Environmental Assessment (an "EA"). The draft EA was submitted to the BIA on July 15, 2003. The BIA reviewed the draft EA and suggested numerous revisions. In May 2004, the EA was finalized. The BIA made the EA available for public review and comment by publishing a Notice of Availability in a Marysville newspaper and mailing the EA to local, State, and tribal governments. On July 7, 2004, the BIA sent a copy of the EA to Colusa. Although NEPA and administrative regulations provide for the receipt of comments as to the EA, Colusa did not comment on it.
Third, after receipt of comments by others than Colusa on the EA, the BIA decided to prepare an EIS to analyze further the possible environmental effects of the proposed fee-to-trust acquisition. Toward that end, the BIA entered into a "Professional Services Third-Party Agreement" with AES on January 6, 2005. The Agreement states that the BIA would "provide AES the technical direction, review, and quality control for the preparation of the Scoping Report, EIS, technical studies, and other NEPA-related documents" and that AES would be the "project manager on behalf of [the] BIA." Enterprise would pay AES's fees.
Fourth, after having hired AES, the BIA engaged in a "scoping" process. "Scoping is a process that continues throughout the planning and early stages of preparation of an [EIS] ... to engage State, local and tribal governments and the public in the early identification of concerns, potential impacts, relevant effects of past actions and possible alternative actions." 43 C.F.R. § 46.235. A "scoping" meeting was held on June 9, 2005 in Marysville. The BIA also published a Notice of Intent to Prepare an EIS in the Federal Register on May 20, 2005, and in Marysville and Sacramento newspapers shortly thereafter. Comments to the scoping process were submitted in writing and at the public meeting. Colusa did not comment.
Fifth, having engaged in the scoping process, AES prepared a draft EIS ("DEIS"), which it completed under the BIA's supervision in February 2008. The DEIS analyzed five potential alternatives to the regulatory action: A) Enterprise Rancheria's proposed facility on the Yuba Site; B) a smaller casino without a hotel on the Yuba Site; C) a water park on the Yuba Site; D) a small casino on another site in Butte County; and E) no action. The DEIS recognized that while the proposed facility on the Yuba Site would benefit Enterprise, "the surrounding tribes that operate casinos could experience decreases in winnings, and potentially be adversely impacted by the decreases," with the proposed casino/hotel project expected to capture "approximately $77 million [per year] in total gaming win[nings] from the local market." The analysis was based on a study by the company Gaming Market Advisors from June 2006 contained in Appendix M of the DEIS, entitled "Socio-Economic, Growth Inducing and Environmental Justice Impact Study."
The DEIS was made available for review and comment was invited through publication in the Federal Register, and in Chico, Marysville, Oroville, and Sacramento newspapers. A public hearing was held on April 9, 2008. While multiple comments on the project were submitted, including by Indian Tribes who were opposed to the project, again, Colusa did not submit any comments on the project.
Sixth, in addition to complying with the regulatory steps required by NEPA, Enterprise and the BIA took the steps required under IGRA's Secretarial two-part determination. In Part 1 of the Secretarial two-part determination, the Secretary of the Interior determines whether "a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community." 25 U.S.C. § 2719(b)(1)(A). In making his determination that the project will not be "detrimental" to the surrounding community, the Secretary is required to seek the consultation of State and local officials, including officials of nearby Indian tribes and other communities surrounding the proposed site. 25 C.F.R. § 292.13. The regulations specify that the "surrounding community means local governments and nearby Indian tribes located within a twenty-five-mile radius of the site of the proposed gaming establishment." Id. § 292.2. However, a local government or Indian tribe "located beyond the [twenty-five]-mile radius may petition for consultation if it can establish that its governmental functions, infrastructure or services will be directly, immediately and significantly impacted by the proposed gaming establishment."Id .
The BIA commenced the consultation on January 16, 2009, and sent letters to State and local officials within a twenty-five-mile radius of the Yuba Site soliciting their input on the proposed project. Colusa is not located within twenty-five miles of the proposed casino project. Colusa wrote to the BIA on June 23, 2009, and stated that Colusa should be consulted and that, given the potential impact of the proposed casino on Colusa's own casino revenues, the BIA should not "slavish[ly] adhere[ ] to the arbitrary [twenty-five]-mile standard." In response, the BIA provided Colusa with Enterprise's fee-to-trust application and the two-part determination request. Colusa did not respond to the BIA's letter.
Seventh, in May 2010 the BIA completed the final EIS (the "FEIS"). The FEIS retained the same five alternatives which were contained in the DEIS, and incorporated the same analysis as included in the DEIS with respect to the casino alternatives' effects on other tribal casinos. The BIA made the FEIS available for public review and comment by publishing a Notice of Availability in the Federal Register and Chico, Marysville, and Oroville newspapers. Colusa then submitted a comment letter dated September 7, 2010. The comment letter complained that the FEIS's Purpose and Need Statement was unduly restrictive; the FEIS failed to consider reasonable alternatives; and Appendix M, which analyzed the effect of the proposed casino on other tribal casinos, relies on "conjecture rather than data." The BIA responded to each of the comments.
Eighth, having published the FEIS and considered comments, the BIA published its Record of Decision under IGRA (the "IGRA ROD") in September 2011. The IGRA ROD concluded that the project would "1) be in the best interest of the Tribe and its members; and 2) that it would not be detrimental to the surrounding community." Pursuant to 25 U.S.C. § 2719(b)(1)(A), the BIA sought the concurrence of California Governor Jerry Brown in its decision. Governor Brown concurred by letter dated August 30, 2012.
Finally, the BIA issued a Record of Decision under the IRA ("IRA ROD") in November 2012 pursuant to 25 U.S.C. § 5108. The IRA ROD concluded the trust acquisition on the Yuba Site would "provide the Tribe with the best opportunity for attracting and maintaining a significant, stable, long-term source of governmental revenue, and accordingly, the best prospects for maintaining and expanding tribal governmental programs to provide a wide range of health, education, housing, social, cultural, environmental, and other programs, as well as employment and career development opportunities for its members."
II.
The lawsuits began immediately following the IRA ROD's publication. The United Auburn Indian Community of the Auburn Rancheria (the "UAIC") filed a complaint in the District of Columbia on December 12, 2012. Colusa filed a complaint in the Eastern District of California a few days later. On December 20, 2012, Citizens filed a complaint in the District of Columbia as well. The Citizens and UAIC cases were consolidated and transferred to the Eastern District of California. On January 23, 2013, the Citizens/UAIC case was further consolidated with Colusa's into a single case. Enterprise intervened as a defendant. Citizens, Colusa, and UAIC immediately moved for injunctive relief to prevent the BIA from taking the land into trust for Enterprise. The motion for injunctive relief was denied. The Yuba Site was taken into trust on May 15, 2013. The lawsuit, however, continued.
Before the district court, the UAIC, Citizens, and Colusa alleged that Interior violated NEPA, IGRA, the IRA, and the Clean Air Act, 42 U.S.C. § 7506(c). The parties cross-moved for summary judgment. In support of their motion for summary judgment, Colusa submitted a Declaration by economist Alan Meister, dated October 9, 2014, along with a two-page summary of a study Meister oversaw entitled "Economic Impacts of the Proposed Enterprise Rancheria Casino on the Colusa Indian Community & Colusa Casino Resort," (together the "Meister Declaration"), which purports to demonstrate that Enterprise's proposed casino will have a devastating economic impact on Colusa. As a result, the Meister Declaration is particularly relevant to Plaintiffs' claim that Defendants violated IGRA, as IGRA requires the Secretary to determine that the proposed casino will not be "detrimental to the surrounding community." 25 U.S.C. § 2719(b)(1)(A).
The regulatory process ended when the IRA ROD was issued on November 21, 2012. However, the Meister Declaration first appeared as an exhibit in support of Colusa's 2014 motion for summary judgment, and therefore was not in the Administrative Record considered by the Agency. Interior moved to strike the Meister Declaration from the district court record. The district court granted the motion to strike the Meister Declaration because it post-dates the Agency decision.
On September 23, 2015, the district court granted Defendants' motion for summary judgment on each of plaintiffs' claims. Plaintiffs also filed a motion for reconsideration, which the district court denied on January 20, 2017.
Both Colusa and Citizens timely appealed the district court's decision, and those appeals were consolidated into this action. The UAIC is not a plaintiff in this action.
III.
We review the district court's grant of summary judgment de novo , Schneider v. Vennard (In re Apple Computer Sec. Litig. ), 886 F.2d 1109, 1112 (9th Cir. 1989), and its order to strike the Meister Declaration for abuse of discretion, Whittlestone, Inc. v. Handi-Craft Co. , 618 F.3d 970, 973 (9th Cir. 2010). Under the Administrative Procedure Act, 5 U.S.C. § 706 et. seq. , an agency's action may be reversed only if it was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Mt. St. Helens Mining & Recovery Ltd. P'ship v. United States , 384 F.3d 721, 727 (9th Cir. 2004).
IV.
Citizens and Colusa raise a host of statutory, regulatory, and procedural challenges to the Enterprise trust acquisition.
A. Challenges Based on the Indian Reorganization Act
1. Statutory Authority for Trust Acquisition
As a preliminary matter, Citizens argues that the Department of the Interior does not have the statutory authority under the IRA to take land into trust for Enterprise. Citizens argues that while Enterprise may be recognized as an Indian Tribe today, Interior has failed to establish that Enterprise was an Indian Tribe under federal jurisdiction in 1934, the year the IRA was passed.
Citizens is incorrect. 25 U.S.C. § 5108 authorizes the Interior to take land into trust "for the purpose of providing land for Indians." The IRA defines "Indians" as "all persons of Indian descent who are members of any recognized Indian tribe" that was "under Federal jurisdiction" at the time of the IRA's enactment. 25 U.S.C. § 5129, Carcieri v. Salazar , 555 U.S. 379, 382, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009). The IRA further states that "[t]he term 'tribe' wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation ." 25 U.S.C. § 5129 (emphasis added). The parties agree that the Enterprise Rancheria is a reservation, and that Indians have lived on it since at least 1915. Therefore, Indians have been living together on the Enterprise Rancheria reservation since at least 1915-Enterprise is, by the terms of the IRA, a tribe for whom Interior may acquire land in trust. 25 U.S.C. § 5129.
The Enterprise tribe was also "under Federal jurisdiction" at the time of the IRA's enactment. IRA Section 18 included an opt-out provision, and Enterprise voted to opt out in an election held on June 16, 1935. In the IRA ROD, the BIA states that "[t]he calling of a Section 18 election at the Tribe's Reservation conclusively establishes that the Tribe was under federal jurisdiction."
Citizens disputes that the Section 18 election demonstrates the existence of a single tribe on the reservation. Citizens reasons that contemporaneous accounts from the Department of Interior show that Indians with differing tribal ancestries often lived together on the same reservation, and that in any event the voting record from the Section 18 election does not describe any specific tribal affiliation of those Indians who voted. Taken together, Citizens concludes that, while the Section 18 election may be evidence that individual Indians were living at the reservation, the election does not demonstrate that those Indians were part of a single recognized tribe. The individuals who voted in that election may have had multiple tribal affiliations, or no affiliation at all.
Citizens' argument ignores the expansive definition of "tribe" contained in the IRA. Specifically, the IRA's definition of "tribe" includes "Indians residing on one reservation." 25 U.S.C. § 5129. Citizens' observation that there may have been individuals with differing tribal ancestries who voted in the 1935 election is irrelevant: there is nothing to suggest that Congress precluded Indians from holding multiple tribal identities. See Cty. of Amador v. U.S. Dep't of the Interior , 872 F.3d 1012, 1015, 1028 (9th Cir. 2017) (determining that the Ione Band is an Indian Tribe despite having its origin as "the amalgamation of several 'tribelets' indigenous to Amador county").
To hold otherwise would also invite a circuit split. In Stand Up For California! v. United States Department of Interior , 879 F.3d 1177 (D.C. Cir. 2018), the D.C. Circuit concluded that a 1935 Section 18 election may be used to demonstrate the existence of an Indian Tribe under federal jurisdiction for purposes of the IRA. See id. at 1181-83. The posture of that case is nearly identical to this one. In Stand Up for California! , the plaintiff objected to Interior's acquisition of a tract of land for the benefit of the North Fork Rancheria of Mono Indians (the "North Fork") so that the North Fork could build a casino. As in this case, the North Fork Record of Decision cited a Section 18 election held on the North Fork reservation shortly after the passage of the IRA as evidence the North Fork Indians were a "tribe" "under federal jurisdiction" in 1934. Id. at 1182-84. The plaintiff argued that the election was "insufficient to establish, broadly, that the participants in the North Fork's [S]ection 18 election belonged to any one tribe." Id . at 1182. The D.C. Circuit analyzed the "IRA's clear text," and concluded that the " 'Indians residing on one reservation' comprise a 'tribe' under the Act.' " Id . at 1183 (citing 25 U.S.C. § 5129 ). The D.C. Circuit therefore concluded that a Section 18 election held on a reservation represents adequate evidence of the tribe's existence, as " 'nothing in the text of [the IRA] requires a tribe' within the meaning of the statute 'to be "single," "unified," or comprised of members of the same historically cohesive or ethnographically homogenous tribe.' " Id . (alterations in original) (quoting Stand Up for California! v. U.S. Dep't of the Interior , 204 F.Supp.3d 212, 289 (D.D.C. 2016) ). We agree.
To summarize, Citizens is correct that the BIA has an affirmative obligation to show that Enterprise was a "tribe" under federal jurisdiction in 1934. But because of the IRA's expansive definition of "tribe," evidence demonstrating that a group of Indians was "residing on one reservation" in 1934 would suffice to demonstrate that those Indians were in a "tribe" pursuant to the IRA. The parties do not dispute that Indians have been residing on Enterprise Rancheria, a reservation, since the Rancheria was established in 1915. The Section 18 election further demonstrates the "tribe" was under federal jurisdiction when the IRA was enacted. The Interior therefore had authority to take land into trust for Enterprise's benefit.
2. "Need" for the land
The implementing regulations for the IRA, which are contained in 25 C.F.R. Part 151, explain that the Secretary may take land into trust for tribes if "the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing." 25 C.F.R. § 151.3(a)(3). Among other things, the Secretary must specifically consider "[t]he need of the individual Indian or the tribe for additional land." 25 C.F.R. § 151.11(a). The IRA ROD explained that Enterprise had limited land holdings, and with such limited holdings, "the Tribe has been unable to exercise many of its sovereign powers. The Tribe's office is located on non-Indian fee land, and there is no usable land base for tribal housing programs of any kind or economic development. The Tribe needs the subject parcel held in trust in order to better exercise its sovereign responsibility to provide economic development to its tribal citizens."
Colusa argues in their opening brief that the IRA ROD "did not find that Enterprise had a 'need' for the Yuba Parcel ... so much as a 'desire' for it." In other words, this particular parcel is not essential for Enterprise's economic development, and Enterprise therefore does not need it, as other parcels might provide adequate opportunity for economic development.
Colusa asks the impossible. It is unclear how any trust application can prove a negative and demonstrate that a single parcel of land-and only that particular parcel-will suffice. Colusa points to no case, and we are aware of none, where a court has mandated such an undertaking. By contrast, in South Dakota v. United States Department of the Interior , 423 F.3d 790, 801 (8th Cir. 2005), the Eighth Circuit rejected a similar argument. In that case, the court considered the State of South Dakota's appeal of Interior's decision to take certain land into trust for the Lower Brule Sioux Tribe. Id. at 793. One of the plaintiff's arguments was that the Secretary did not describe sufficiently the tribe's "need" for the land. Id. at 801. The panel determined that it is "sufficient for the Department's analysis to express the Tribe's needs and conclude generally that IRA purposes were served." Id . We agree. Interior determined that Enterprise needed economic development; the Yuba Site provides an opportunity for Enterprise to engage in that development.
Second, Colusa argues that the existence of other parcels owned by Enterprise somehow undercuts Enterprise's need for the land. Colusa notes that Enterprise previously purchased land in Butte County, with funds granted by the United States Department of Housing and Urban Development and one of the authorized uses for that land is economic development. But the existence of other land does not undercut Enterprise's "need" for the Yuba parcel. Indeed, Colusa had recognized in its 2010 comments on the FEIS that Enterprise intends to use the sixty-three-acre parcel for tribal member housing purposes. Enterprise secured a place for its members to live. That does not render arbitrary or capricious its acquisition of a place for them to work as well.
3. Mis-description of the Parcel
On December 3, 2012, Interior published in the Federal Register a Notice of Final Agency Determination to take land into trust for the benefit of Enterprise Rancheria, 77 Fed. Reg. 71612. That Notice included a description of the land to be taken into trust. However, the notice provided an incorrect legal description of an eighty-acre parcel-the parcel which would be divided prior to the transfer of forty acres into trust for Enterprise's benefit. Interior corrected this error in the legal description the following month. See 78 Fed. Reg. 114 (Jan. 2, 2013).
Colusa infers from this mis-description that Interior did not actually know what piece of land was being taken into trust, thereby rendering the final ROD arbitrary and capricious.
However, the administrative record is replete with descriptions of the correct forty-acre parcel, including detailed maps. The mis-description was a trivial error that was quickly corrected. Colusa cites no case law, and we are aware of none, indicating that such trivial errors require the invalidation of an ROD.
B. Challenges based on the Indian Gaming Regulatory Act
IGRA generally prohibits gaming on lands which the Government has taken into trust for an Indian tribe after 1988, 25 U.S.C. § 2719(a). However, gaming may be allowed when
the Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination.
Id. § 2719(b)(1)(A). This process is referred to as a "Secretarial Determination." Pursuant to the statute and its implementing regulations, there are four basic steps to a Secretarial Determination: 1) the Secretary consults with relevant State and local officials, including "nearby" Indian tribes; 2) the Secretary determines, after consultation, that the proposed site is in the best interest of the tribe which will engage in the gaming; 3) the Secretary determines that the proposed site will not be "detrimental to the surrounding community"; and 4) the Secretary receives the concurrence from the Governor of the affected State (in this case, California). See id. According to the implementing regulations, a tribe is "nearby" when it is within twenty-five miles of the proposed site. 25 C.F.R. § 292.2.
Colusa describes three alleged errors in this process. First, Colusa argues that the BIA erred when it failed to consult with Colusa. Second, Colusa argues that the regulation which mandates consultation only with those communities within twenty-five miles of the proposed trust acquisition is invalid. Finally, Colusa argues that the Secretary's finding that the proposed casino project would not be "detrimental to the surrounding community," 25 U.S.C. § 2719(b)(1)(A), was arbitrary and capricious. To support that argument, Colusa contends that a document it submitted on summary judgment-the Meister Declaration-shows that the casino project would be detrimental to Colusa and should not have been stricken by the district court.
Citizens argues the IGRA ROD's determination that the proposed acquisition would not be "detrimental to the surrounding community" is arbitrary and capricious because the IGRA ROD fails to explain how necessary mitigation measures will be enforced.
1. The BIA's consultation with Colusa
IGRA requires the Department of the Interior to consult with "nearby" Indian tribes when Interior considers a trust acquisition for the purpose of Indian gaming. The implementing regulations, 25 C.F.R. § 292.2, define as "nearby" those tribes located within a twenty-five mile radius. A tribe "located beyond the [twenty-five]-mile radius may petition for consultation if it can establish that its governmental functions, infrastructure or services will be directly, immediately and significantly impacted by the proposed gaming establishment." 25 C.F.R. § 292.2. Colusa is located more than twenty-five miles from the location of the proposed hotel and casino project.
On January 16, 2009, the BIA sent letters to State and local officials within a twenty-five-mile radius of the Yuba Site to solicit input and "consult" on the proposed project. These State and local officials did not include members of Colusa. On June 23, 2009, Colusa wrote to the BIA and stated that Colusa, despite being located more than twenty-five miles from the Yuba Site, should be consulted. On July 18, 2009 the BIA wrote a letter back to Colusa. That letter enclosed a number of documents including Enterprise's fee-to-trust application, and explained that although "pursuant to 25 C.F.R. Part 292 you do not qualify as a nearby tribe for purposes of consultation under this part, you may submit comments and/or documents that establish that your governmental functions, infrastructure or services will be directly, immediately and significantly impacted by the proposed gaming establishment." Colusa never responded to the BIA's letter.
Nothing more was required of the BIA. It allowed Colusa, pursuant to the implementing regulations, to petition for consultation. Colusa chose not to do so.
2. Colusa's challenge to 25 C.F.R. § 292.2
Colusa next argues that the implementing regulations defining "nearby" as within twenty-five miles are invalid. Colusa appears to bring both a facial and an as-applied challenge to the twenty-five mile radius.
Both challenges fail. To prevail in a facial challenge, Colusa "must establish that no set of circumstances exists under which the regulation would be valid." Reno v. Flores , 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (alteration in original omitted) (quoting United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). Colusa has not attempted to do so beyond its conclusory condemnation of the regulation. Colusa does not explain why in all circumstances, a definition of the word "nearby" as meaning "within twenty-five miles" is arbitrary and capricious. Colusa is also unable to show the regulation was invalid as it was applied to them. Colusa has not proffered any evidence establishing that the procedure in 25 C.F.R. § 292.2, which requires tribes like Colusa to petition for consultation, is especially burdensome, or even that it would have been difficult for Colusa to show that its "infrastructure or services will be directly, immediately and significantly impacted by the proposed gaming establishment." 25 C.F.R. § 292.2. In any event, regardless of the twenty-five-mile radius for consultation of Tribes within that area, Colusa was given an opportunity to consult. Colusa's as-applied challenge therefore also fails.
3. The Meister Declaration
IGRA requires that the proposed trust acquisition "not be detrimental to the surrounding community." 25 U.S.C. § 2719(b)(1)(A). In support of its determination that the proposed casino will not be detrimental, the FEIS, which is explicitly referenced by the IGRA ROD, included a study on the economic impact of the casino. Contained in Appendix M of the FEIS, the study, entitled "Socio-Economic, Growth Inducing and Environmental Justice Impact Study," employed a so-called "gravity model" to determine the likely effect of the proposed casino on competitor casinos. The Appendix M study concluded that "those casinos closest to the subject Enterprise Rancheria are expected to experience the greatest loss of revenue," with a total "cannibalization" of approximately "$76.8 million in gaming win[nings] from the local market area." It further concluded that the loss in revenues would be distributed among twelve competing casinos, with the "two market leaders, Thunder Valley and Cache Creek, absorbing nearly 2/3 of the drop in revenue." The study estimated that Colusa's casino would lose approximately $4.3 million per year. Colusa does not argue that $4.3 million per year represents a detrimental loss.
Nevertheless, on summary judgment Colusa disputed the conclusions of the Appendix M study. In support of its summary judgment motion Colusa submitted the Meister Declaration, which concluded that the Enterprise casino would have a larger economic impact on Colusa's casino than indicated by the study in Appendix M. The Meister Declaration did not provide the data on which its conclusion was based.
The district court struck the Meister Declaration because it represents extra-record evidence. It correctly noted that the Ninth Circuit allows for a court to review material outside of the administrative record in four narrow circumstances:
1) where the extra-record evidence is "necessary to determine whether the agency has considered all relevant factors and has explained its decision";
2) where "the agency has relied on documents not in the record";
3) where "supplementing the record is necessary to explain technical terms or complex subject matter"; or
4) where "plaintiffs make a showing of agency bad faith."
Sw. Ctr. For Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1451 (9th Cir. 1996) (internal citations omitted). Colusa does not dispute the district court's rejection of exception 4 (agency bad faith) or exception 2 (reliance on material not in the administrative record).
The district court did not abuse its discretion when it determined that the Meister Declaration was not "necessary to explain technical terms or complex subject matter" (exception 3). The Meister Declaration does not explain technical terms or elucidate complex subject matter. It endorses the methodology employed by the 2006 study contained in Appendix M, but criticizes that study as reliant on bad data. The Meister Declaration was provided to rebut Appendix M, not to explain it.
The district court also did not abuse its discretion when it determined that the Meister Declaration was not "necessary to determine whether the agency has considered all relevant factors" (exception 1). The Meister Declaration provides new analysis regarding the economic effects of the proposed gaming site on competing casinos. But the economic effects on other tribes' casinos is a problem that the BIA considered, even if the specific data proffered in the Meister Declaration was not available to the BIA.
Further, even if one of the enumerated exceptions did apply, it would be of no matter, because "exceptions to the normal rule regarding consideration of extra-record materials only apply to information available at the time, not post-decisional information." Tri-Valley CAREs v. U.S. Dep't of Energy , 671 F.3d 1113, 1130 (9th Cir. 2012) (original alterations and internal quotation marks omitted); see also id . at 1130-31 ("[P]ost-decision information may not be advanced as a new rationalization either for sustaining or attacking an agency's decision because it inevitably leads the reviewing court to substitute its judgment for that of the agency." (internal quotation marks omitted)). The Meister Declaration was executed June 24, 2014 and the study it contains is dated May 2013. The Meister Declaration and its accompanying study therefore post-date the 2011 IGRA ROD by approximately two years.
Nor is it clear whether the data pre-dates or post-dates the Agency decision. The Meister Declaration attached a single exhibit-a two page "report" which summarizes Meister's projections regarding Colusa's revenues. That report makes predictive statements about the effect of the Enterprise project on Colusa's revenues in 2016 through 2018, and states that it is "based on actual data from both the Colusa Casino Resort and the Colusa Indian Community." However, the report does not state the years from which the data were drawn, or describe the data with any specificity. The data were never provided to Interior.
Because the Meister Declaration is not necessary to determine whether the agency has considered all relevant factors and has explained its decision, Sw. Ctr. For Biological Diversity , 100 F.3d at 1451, and because the analysis contained within it post-dates the IGRA ROD, the district court did not abuse its discretion when it granted the motion to strike.
4. Enforcement of Mitigation Measures
Citizens also argues that the Secretary's determination that there will be no detrimental harm to the surrounding community was arbitrary and capricious. Citizens asserts that the mitigation measures to which Enterprise agreed, and which the IGRA ROD acknowledges are necessary to prevent detrimental harm to the surrounding community, are not enforceable. Citizens argues that as a result it was arbitrary and capricious for the BIA to rely on such "illusory" mitigation.
In the IGRA ROD, Interior states that it has "considered potential effects to the environment, including potential impacts to local governments and other tribes, has adopted all practicable means to avoid or minimize environmental harm, and has determined that potentially significant effects will be adequately addressed by ... mitigation measures." The IGRA ROD further states that the "Preferred Alternative"-i.e., the selection of the Yuba Site for the casino project-would be implemented "subject to implementation of the mitigation measures." The IGRA ROD contains approximately twenty pages of detailed mitigation measures, ranging from the requirement that Enterprise "install a trash compactor for cardboard and paper products," to the requirement that Enterprise implement water conservation measures. The mitigation measures also include less specific requirements; for example, Enterprise is told to "enter into [a Memorandum of Understanding] or provide for a similar agreement to reimburse the affected law enforcement department for the provision of law enforcement services [which would] include compensation for increased equipment or staffing needs." In addition, the IGRA ROD adopted by reference the mitigation measures listed in the FEIS.
Again, Citizens concedes that the many mitigation measures listed, if implemented, would be adequate. Citizens contends however that there is no guarantee the measures will be implemented at all. Due to Tribal sovereign immunity, which insulates Enterprise from suit, the jurisdictions that are affected by negative externalities of the casino project may not be able to compel Enterprise to live up to its mitigation obligations. See, e.g. , Michigan v. Bay Mills Indian Cmty. , --- U.S. ----, 134 S.Ct. 2024, 2028, 188 L.Ed.2d 1071 (2014) (holding that tribes enjoy sovereign immunity from suit for on- and off-reservation activities). Citizens concludes that such failure to include enforcement mechanisms renders mitigation "illusory."
In a matter of first impression, we find that it is within the expertise of the Agency to determine the likelihood required mitigation measures will be followed, and the BIA's determination that Enterprise would fulfill its required mitigation measures was not arbitrary or capricious. In National Association of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007), the Supreme Court summarized what a reviewing court may consider when it determines whether an agency decision is arbitrary and capricious. The Court ruled that,
[r]eview under the arbitrary and capricious standard is deferential; we will not vacate an agency's decision unless it has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. We will, however, uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.
Id. at 658, 127 S.Ct. 2518 (internal quotation marks and citations omitted). Citizens does not allege that there were factors which the BIA considered which "Congress had not intended it to consider" or that an explanation was offered that "runs counter to the evidence before the agency." Id. Neither is the BIA's conclusion that Enterprise would engage in the agreed-upon mitigation "so implausible that it could not be ... the product of agency expertise." Id .
Only one factor described in Defenders of Wildlife -that a decision may be arbitrary and capricious if the agency "entirely failed to consider an important aspect of the problem"-is arguably applicable, as mitigation is an important factor for the BIA to consider. However, Citizens does not argue that the agency "failed to consider" mitigation. It argues that the mitigation the agency considered was "illusory" because of the difficulties in enforcement; i.e. , that the agency's prediction that mitigation would take place is unreasonable. But "[t]he 'arbitrary and capricious' standard is particularly deferential in matters implicating predictive judgments." Stand Up For California! , 879 F.3d at 1188 (quoting Rural Cellular Ass'n v. FCC , 588 F.3d 1095, 1105 (D.C. Cir. 2009) ). And indeed, Citizens has not argued that it is unlikely or "implausible" that the needed mitigation will take place. Citizens has not presented, for example, an economic argument describing why it is unlikely that Enterprise will fulfill its mitigation obligations. Absent more, we will not speculate upon reasons Enterprise may decide not to live up to its agreements. The Agency concluded they will, and absent evidence, we will not gainsay the Agency's conclusion.
C. Challenges based on the National Environmental Policy Act
While NEPA establishes a "national policy [to] encourage productive and enjoyable harmony between man and his environment," 42 U.S.C. § 4321, "NEPA itself does not mandate particular results," Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). "Rather, NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Dep't of Transp. v. Public Citizen, 541 U.S. 752, 756-57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). Colusa argues that the FEIS was procedurally deficient in a number of ways.
1. Purpose and Need Statement
NEPA's implementing regulations require that an EIS contain a statement describing the "purpose and need" of the project, which "shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action," 40 C.F.R. § 1502.13. Further, in the EIS, the agency must "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14. While agencies enjoy "considerable discretion," to define the purpose and need of a project, Friends of Se.'s Future v. Morrison , 153 F.3d 1059, 1066 (9th Cir. 1998), in doing so "an agency cannot define its objectives in unreasonably narrow terms," City of Carmel-by-the-Sea v. U.S. Dep't of Transp. , 123 F.3d 1142, 1155 (9th Cir. 1997). "Courts evaluate an agency's statement of purpose under a reasonableness standard...and in assessing reasonableness, must consider the statutory context of the federal action at issue...[while] [a]gencies enjoy considerable discretion in defining the purpose and need of a project...they may not define the project's objectives in terms so unreasonably narrow, that only one alternative would accomplish the goals of the project." HonoluluTraffic.com v. Fed. Transit Admin. , 742 F.3d 1222, 1230 (9th Cir. 2014) (citations and internal quotation marks omitted).
Colusa argues the FEIS's "purpose and need" statement was "artificially limited." It was not.
The FEIS explained that the objectives of the trust acquisition were to
• Restore trust land to the Tribe in an amount equal to the amount of land previously lost as a result of federal action ....
• Provide employment opportunities for tribal members and [the] non-tribal community.
• Improve the socioeconomic status of the Tribe by providing a new revenue source that could be utilized to build a strong tribal government, improve existing tribal housing, provide new tribal housing, fund a variety of social, governmental, administrative, educational, health, and welfare services to improve the quality of life of tribal members, and to provide capital for other economic development and investment opportunities.
• Allow Tribal members to become economically self-sufficient, thereby eventually removing Tribal members from public-assistance programs.
• Fund local governmental agencies, programs, and services.
• Make donations to charitable organizations and governmental operations.
• Effectuate the Congressional purposes set out in [IGRA].
The Purpose and Need Statement further states that the Tribe "has no sustained revenue stream" which can be used to fund programs for Tribal members.
The Purpose and Need Statement is quite broad. It describes the BIA's intent to provide Enterprise with a vehicle for substantial economic development, and the various benefits that may accrue from economic self-sufficiency. Colusa argues that the "narrow" Purpose and Need Statement led to a deficient analysis of possible alternatives. But the BIA considered five possible alternatives: Alternative A, the hotel casino project that was ultimately accepted on the Yuba Site; Alternative B, a smaller casino on the Yuba Site; Alternative C, a water park on the Yuba Site; Alternative D, a casino on an alternate site in Butte County; and Alternative E, no action. The FEIS considered in detail the environmental and economic consequences of each alternative. Based on the analysis of the possible alternatives in the FEIS, the Interior concluded that the best alternative was the one selected-Alternative A, the casino/hotel project on the Yuba Site. The range of alternatives was not "illusory."
In addition, Colusa argues that the FEIS should have analyzed two additional sites-1) a site in Oroville purchased by Enterprise in 2006, and 2) an unspecified site on federal land near Enterprise 1. However, Colusa failed to propose these additional sites during the comment period. With respect to non-obvious defaults in an EA or EIS, "persons challenging an agency's compliance with NEPA must structure their participation so that it alerts the agency to the parties' position and contentions, in order to allow the agency to give the issue meaningful consideration." Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 764, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (original alterations, citations, and internal quotation marks omitted). A failure to identify "in their comments any rulemaking alternatives beyond those evaluated in the EA" causes those now objecting to an agency rulemaking to "forfeit[ ] any objection to the EA on the ground that it failed adequately to discuss potential alternatives to the proposed action." Id . at 764-65, 124 S.Ct. 2204 ; see also N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147, 1156 & n.2 (9th Cir. 2008) (finding that the Department of Transportation's highway construction project did not violate NEPA when the Agency failed to consider a tunnel alternative that was not brought to its attention until well after the notice and comment period for the EIS closed, and ruling that "any objection to the failure to consider that alternative has been waived").
During the notice and comment period, Colusa did not tell the BIA to consider the alternatives it now proposes. Having failed to do so, Colusa has waived any argument that the failure to consider those alternatives represented a violation of NEPA.
2. Analysis of Data
Next, Colusa argues that the FEIS failed adequately to analyze the effect of the proposed project on the local environment, because some of the data on which the FEIS relied was inadequate. First, Colusa argues that the "biological data" on which the FEIS relied was "stale." Second, Colusa argues that Appendix M-which analyzed the socio-economic impacts of the Yuba Site casino project-was based on insufficient data.
i. Biological Data
Colusa argues that unspecified "biological data" in the FEIS is outdated and cites Lands Council v. Powell , 395 F.3d 1019, 1031 (9th Cir. 2005), a Ninth Circuit decision in which the court ruled that certain six-year old data on which an FEIS relied was "suspect." Colusa then states broadly that "much of the biological information" is "several years old," and "in some cases nearly ten years old."
A review of the FEIS Appendices reveals that Colusa's argument is unsupported.
The FEIS Appendices contain a variety of different studies, letters, and declarations from potentially impacted parties. For example, Appendix D contains a "Water and Wastewater Feasibility Study" prepared in July 2008, approximately two years before the publication of the FEIS, and Appendix H contains a "Biological Resources Assessment" of the site of the trust acquisition prepared in 2007, three years before the completion of the FEIS. Colusa does not explain why the data in the Appendices are unreliable. The data in the various Appendices were generally compiled after 2006, two years prior to the publication of the DEIS, and four years prior to the publication of the FEIS. Colusa has pointed to no authority, and provided no argument, indicating that data which is four years old is inherently suspect. Colusa assigns a 2003 date to Appendix L, which contains correspondence with the State of California's Office of Historic Preservation indicating that no historic properties will be impacted. However, that Appendix contains two letters-one from 2003, and another from 2007, the latter of which similarly concurred that no historic properties would be affected.
Apart from Appendix L, only one Appendix contains data older than 2006: Appendix E, a 2000 declaration that a proposed wastewater treatment plant on the Yuba Site would not have a significant environmental impact. This document is historic and not subject to updating, and Colusa has not alleged that this historic document was the basis of any specific conclusions drawn in the FEIS. Colusa is therefore unable to support its generalized statement that the unspecified "biological data" contained in the FEIS is "stale."
ii. Economic Data
Colusa next argues that the economic data on which Enterprise relied was flawed. As noted above, Appendix M of the FEIS contains a study authored by Gaming Market Advisors entitled "Socio-Economic, Growth Inducing and Environmental Justice Impact Study." That study described the likely economic impact of the proposed casino on other competing casinos, including that of plaintiff Colusa. Colusa argues that Appendix M relied on stale data and made improper economic assumptions. By contrast, Colusa insists that the Meister Declaration contained a more accurate accounting of the effect Enterprise's casino would have on Colusa.
Colusa's argument is misplaced. The Meister Declaration was properly struck as extra-record evidence which post-dated the FEIS and the IGRA and IRA RODs. It also was based on proprietary data which Colusa did not provide to the BIA during the regulatory process and which Colusa still has not disclosed. Colusa cannot now rely on it here. Pub. Citizen , 541 U.S. at 764, 124 S.Ct. 2204. Further, Colusa's argument regarding the allegedly missing economic data is connected to its claim that Colusa will experience economic harm as a result of the casino project. We have "consistently held that purely economic interests do not fall within NEPA's zone of interests." Ashley Creek Phosphate v. Norton , 420 F.3d 934, 940 (9th Cir. 2005).
3. Hard Look at Environmental Harm
Colusa next argues that the FEIS failed to take a "hard look" at the environmental impacts of the proposed action. Colusa describes two deficiencies: i) one regarding the air quality analysis in the FEIS, and ii) another regarding the effect of the project on certain species of fish.
Neither argument is persuasive.
i. Air Quality
Colusa argued that the FEIS's analysis of air quality was deficient under NEPA, because "[t]he FEIS merely asserted that the emissions from Enterprise's proposed casino would conform to California's state plan, but did not give any figures that would support that assertion." App. Br. at 37. Colusa also argued that "it appears that NOx emissions may exceed EPA's de minimis threshold for both ozone and PM2.5 emissions and require offsets or other actions by DOI to conform to the California State Implementation Plan." Colusa did not elaborate on the effect of the alleged "NOx" emissions, or otherwise explain how the existence of such emissions violate the Clean Air Act, NEPA, or any other statute. As a result Colusa has waived this argument for failing to develop it. Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief. We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are presented for review. [J]udges are not like pigs, hunting for truffles buried in briefs." (internal citations and quotations omitted)).
Further, Colusa's general contention that the FEIS provided insufficient figures is incorrect, as the FEIS supported its conclusion that the emissions from Enterprise's proposed casino would not violate the Clean Air Act or any California regulation. According to 40 C.F.R. § 93.153(b)(1), the de minimis threshold for emissions of NOx is 100 tons per year. The FEIS describes mitigation measures that will reduce emissions of NOx to below 25 pounds per day, or 4.56 tons per year, well below the regulatory threshold.
ii. Migratory Fish
Colusa next argues that the FEIS ignores potential harm to six fish species of concern, five of which are listed under the Endangered Species Act. Colusa argues that the FEIS should have discussed whether or not the canals near the Yuba parcel are "screened" in order to protect the migratory fish. Colusa does not proffer any evidence that there is an actual danger to these species of fish, or otherwise describe a likely effect of the casino project on the fish. The FEIS states that the fish species will not live in or near the project site. Colusa does not provide any evidence or argument to undermine the FEIS's statement.
4. Oversight of the FEIS
40 C.F.R. § 1506.5(c) states that an EIS "prepared pursuant to the requirements of NEPA shall be prepared directly by or by a contractor selected by the lead agency .... It is the intent of these regulations that the contractor be chosen solely by the lead agency ...."
Colusa argues that the BIA failed to exercise "sufficient independent oversight over [the] preparation of the FEIS," and insists that Enterprise, rather than the BIA, "chose" AES as its contractor for the creation of the EIS. Colusa also argues that AES had an impermissible "financial interest" in the outcome of the project.
First, Colusa provides no evidence that the BIA did not make an independent choice to contract with AES. As noted above, Enterprise contracted with AES under the BIA's supervision to create a draft EA, a document which the BIA evaluated prior to deciding whether to proceed with an EIS. Having decided to create an EIS, the BIA then entered into a Professional Services Third-Party Agreement with AES. The Professional Services Third-Party Agreement states that "[t]his Agreement constitutes the required disclosure statement and the BIA's selection of AES as the primary EIS contractor." Colusa points to nothing in the Agreement, or to anything else in the record, which calls into question the BIA's representation that it chose to contract with AES for the creation of the EIS.
Second, Colusa has not shown an impermissible conflict of interest. 40 C.F.R. § 1506.5(c) states that a contractor which prepares an EIS "shall execute a disclosure statement prepared by the lead agency ... specifying that they have no financial or other interest in the outcome of the project." AES executed such a disclosure statement. However, Colusa argues that AES in reality had an impermissible financial interest in the outcome of the project: the same Agreement containing AES's disclosure statement states that "AES ... will supply environmental consulting services to prepare the environmental documentation and assist with obtaining permit approvals necessary to construct the project." Colusa reasons that AES will aid in helping obtain the "permit approvals necessary to construct the project" only after the approval of the FEIS. In other words, AES has a "financial ... interest in the outcome of the project" per 40 C.F.R. § 1506.5(c).
However, Colusa fails to allege that any financial stake AES has in aiding with permit approvals is significant. Moreover, the agency made a factual determination that there was no conflict of interest, and absent proof that this finding lacks substantial evidence to support it, the court should defer to the agency's factual determination. Markair, Inc. v. Civil Aeronautics Bd. , 744 F.2d 1383, 1385 (9th Cir. 1984).
Furthermore, a contractor's technical conflict of interest does not lead to the automatic invalidation of an FEIS or ROD. Rather, the Court "can evaluate the oversight that the agency provided to the [EIS] process as a factual matter and make a determination upholding the [EIS]." Ass'ns Working for Aurora's Residential Env't v. Colo. Dep't of Transp. , 153 F.3d 1122, 1129 (10th Cir. 1998).
Colusa argues that three pieces of evidence demonstrate that the BIA failed to exercise sufficient independent oversight over the project. First, Colusa cites to "[Interior's] failure to require a sufficiently broad analysis of alternatives." But, as we have already found, the alternatives selected were facially reasonable, and Colusa provides no specific argument explaining why they are not. Second, Colusa argues that the Interior's "acceptance of pure guesswork as to the impacts on Colusa" of the proposed project shows a lack of supervision over the project. However, Colusa's alleged experience of a purely economic harm is not cognizable under NEPA, so it is unclear how, under NEPA, a failure properly to analyze that harm is evidence of improper supervision of the NEPA process. In any event, Colusa's contention that the economic harm analysis was "based on pure guesswork" is inaccurate: Appendix M to the FEIS contains a rigorous economic analysis. Finally, Colusa argues that the failure to require AES to make a certification "under penalty of perjury" demonstrates a failure of oversight. No such requirement for a statement under penalty of perjury exists in the regulations. The failure to include such a non-required statement proves nothing.
Colusa has not presented any evidence that the BIA failed to engage in adequate independent oversight over the preparation of either the DEIS or the FEIS, or that the "consulting services" AES may perform are in any way significant. As a result, Colusa is incorrect that a technical violation of the conflict of interest provision-if such a violation occurred-mandates the withdrawal of the FEIS and invalidation of the decade-plus long regulatory process. If a violation is but "trivial," it does "not give rise to any independent cause of action." 40 C.F.R. § 1500.3.
V.
For the above-stated reasons, we AFFIRM the decision of the district court.
This group of concerned citizens includes the groups Citizens for a Better Way, Stand Up For California!, and Grass Valley Neighbors; individuals William F. Connelly, James M. Gallagher, Andy Vasquez, Dan Logue, Robert Edwards; and the business Roberto's Restaurant.
Incidentally, the Indians in Enterprise voted against the application of the IRA. In 1983, Congress enacted the Indian Land Consolidation Act, Pub. L. No. 97-459, 96 Stat. 2517 (1983), which amended the IRA to provide that Section 5 of the IRA-the Section which allows for the taking of land into trust for Indians' benefit-would apply notwithstanding a tribe's rejection of the IRA pursuant to a Section 18 election.
Pursuant to 40 C.F.R. § 1508.9, an EA is "a concise public document for which a Federal agency is responsible that serves to ... [b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS]."
For example, on April 8, 2008, the Picayune Rancheria of the Chukchansi Indians expressed to the BIA its view that "[t]he acquisition of land outside of the tribe's historic homelands solely to allow for a tribe to own a casino is inconsistent with the congressional intent behind the IRA." The Chukchansi Indians are not a party to this lawsuit.
Colusa has also moved for judicial notice of the notices granting petitions for review in the California Supreme Court of Stand Up for California! v. State , 6 Cal.App.5th 686, 211 Cal.Rptr.3d 490 (2016) and United Auburn Indian Community of Auburn Rancheria v. Brown , 4 Cal.App.5th 36, 208 Cal.Rptr.3d 487 (2016). Those cases are potentially relevant only to Colusa's separate motion to stay, which we have already denied. See Dkt. No. 31. The motion for judicial notice is therefore DENIED.
As Citizens acknowledges, the record establishes that the United States purchased the land which became known as the Enterprise Rancheria in 1915 so that certain Indians "may have a permanent home on this land."
Cf. Act of Aug. 11, 1964, Pub. L. No. 88-419, 78 Stat. 390, 391 (clarifying that a prior statute which stripped Indian status from certain reservation residents left those affected wholly bereft of Indian status only if they were "not members of any other tribe or band.")
We also agree with the D.C. Circuit in Stand Up for California! that we may consider the record evidence describing the 1915 land acquisition. See Stand Up for California! , 879 F.3d at 1183 ("Stand Up insists that we may not consider this purchase because the Department treated the section 18 election alone as 'conclusively establish[ing] that the [North Fork] was under Federal jurisdiction' in 1934. Stand Up misreads the Department's decision. Although the Department treated the election held 'at the Tribe's Reservation' as dispositive of the government's jurisdictional relationship with the reservation's residents, it presupposed that the reservation was a 'Tribe's.' The source of that presupposition becomes clear in the decision's very next section, where the Department characterized the 1916 Rancheria purchase as establishing the North Fork's 'tribal land.' "). So too here. In our case, the IRA ROD states that the "Section 18 election at the Tribe's Reservation conclusively establishes that the Tribe was under federal jurisdiction." That statement presupposes that the reservation was the Tribe's. As in Stand Up for California! , the source of that presupposition appears in the very next section, wherein the IRA ROD describes the land purchased in 1915 as the "Tribe's ... land holdings."
The other considerations include, (a) the statutory authority for the acquisition and any limitations contained in such authority; (c) "the purposes for which the land will be used"; (e) if the land acquired is in unrestricted fee status, the impact on the State resulting from the removal of the land from the tax rolls; (f) "jurisdictional problems and potential conflicts of land use which may arise"; (g) if the land is acquired in fee status, whether the BIA is equipped to discharge additional responsibilities; (h) the extent to which the applicant provided information that allows the Secretary to comply with 516 DM 6, appendix 4, National Environmental Policy Act Revised Implementing Procedures, and 602 DM 2, Land Acquisitions: Hazardous Substance Determinations. 25 C.F.R. § 151.11 (a), incorporating by reference 25 C.F.R. § 151.10 (a)-(c), (e)-(h).
South Dakota had argued that the Secretary did not provide enough detail describing why it was necessary to take the land into trust status rather than fee status. The Eight Circuit determined that "it would be an unreasonable interpretation of 25 C.F.R. § 151.10(b) to require the Secretary to detail specifically why trust status is more beneficial than fee status." South Dakota , 423 F.3d at 801.
We say "appears" to bring facial and as-applied challenges because the words "facial" and "as-applied" are not specifically used in Colusa's briefing.
As Appendix M explains, the gravity model is an application of Newton's Universal Law of Gravitation. Newton's Law states that every particle in the universe attracts every other particle with a force that is directly proportional to the product of their masses, and inversely proportional to the square of the distance between them. With respect to commerce, the gravity model posits that two equally sized commercial establishments which are equidistant from a given individual will have the same "pull" on that individual. Should one of the establishments be twice the size of the other, it will have twice the pull on the individual. In the study contained in Appendix M, AES states that "[b]y estimating the revenue levels at each of the casino properties within the competitive set, researching the number of gaming positions provided within each, visiting each facility to understand the relative aesthetic attractiveness (including a consideration of non-gaming amenities), and utilizing gaming factors from proprietary and public sources, the model can be calibrated to current market conditions."
The IGRA ROD explains why Alternative A, the Yuba hotel-casino site, was ultimately selected:
Alternatives B and C, while slightly less intensive than Alternative A, would require similar levels of mitigation for identified impacts; however, the economic returns would be smaller than under Alternative A and the more limited development is not the most effective use of either the land or the Tribe's capital resources. The Tribe needs a development option that would ensure adequate capital resources to not only fund Tribal programs but fund mitigation measures for identified impacts and payment obligations to local jurisdictions. The reduced revenue anticipated from Alternatives B and C would limit the Tribe's ability to fund both Tribal programs and mitigation measures. Additionally, without the development of the hotel and the rural location of the Butte site, Alternative D would provide further limited opportunities for capital development to fund Tribal programs. A non-gaming entertainment development on the Yuba [S]ite would have limited competitive ability to draw patrons from the greater population centers within Yuba County and the Highway 65 corridor compared to the gaming alternatives. In addition, based on peak-hour traffic patterns for retail centers compared to gaming operations, Alternative C also would likely have equal to and in certain instances greater traffic impacts during peak hours than would Alternative A. In short, Alternative A is the alternative that best meets the purpose and need of the Tribe and the BIA while preserving the natural resources of the Yuba [S]ite. Therefore, Alternative A is the Department's Preferred Alternative.
Colusa also insists that the Appendices were "compiled prior to the recently ended drought." Colusa does not state what "biological data" was affected by that drought, or otherwise cite to any case law indicating that the court should find an FEIS inadequate because of the intervention of specific weather events.
See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt. , 387 F.3d 989, 992-93 (9th Cir. 2004) ("Through the NEPA process, federal agencies must carefully consider detailed information concerning significant environmental impacts, but they are not required to do the impractical. Alternatively phrased, the task is to ensure that the agency has taken a 'hard look' at the potential environmental consequences of the proposed action." (original alterations, internal citations, and quotations omitted)).
The FEIS states that the fish "do not have the potential to occur within the study area, as the only aquatic habitats within the study area are agricultural irrigation ditches and canals or receive water supply from these ditches or canals. The water level fluctuates within these features according to crop demand and is not sufficient to support these species."
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OPINION OF THE COURT
SLOVITER, Circuit Judge.
On motion of Wheeling-Pittsburgh Steel Corporation (Wheeling) and over the objection of the United States Evironmental Protection Agency (EPA), the district court amended a consent decree which required Wheeling to install pollution control equipment at a Follansbee, West Virginia plant and to achieve compliance with West Virginia’s federally approved air pollutant emission limitations by December 31, 1985. The court substituted a provision that contained no fixed compliance date but which was instead dependent upon approval by the West Virginia Air Pollution Control Commission of an alternative proposal submitted by Wheeling. The United States appeals.
I.
Background
Wheeling, a steel manufacturer, owns and operates a sinter windbox (“Sinter Plant”) at its plant in Follansbee, West Virginia. A sinter windbox is used in a process which fuses residual materials from steel production into sinter which is employed as a feed material in blast furnacés. From a lay standpoint, a sinter plant recycles steel. It is undisputed that Wheeling’s Sinter Plant releases particulate emissions at levels in excess of the permissible levels for particulates established by the EPA pursuant to the Clean Air Act (as amended), 42 U.S.C. § 7401 et seq., and the West Virginia State Implementation Plan.
The Clean Air Act (the Act) establishes a combined state and federal program to control air pollution. Under the 1970 amendments to the Act, EPA is required to establish primary and secondary National Ambient Air Quality Standards (NAAQS) for those air pollutants which may endanger public health or welfare. 42 U.S.C. §§ 7408, 7409. Primary standards are designed to protect the public health; secondary standards are designed to protect the public welfare. 42 U.S.C. § 7409(b). As required by the Act, EPA established primary and secondary NAAQS for particulate matter. 40 C.F.R. §§ 50.6, 50.7.
The 1970 Amendments require each state to develop a state implementation plan (SIP) for the “implementation, maintenance and enforcement” of each NAAQS. 42 U.S.C. § 7410(a)(1). The SIP must be submitted for approval to the Administrator of EPA. 42 U.S.C. § 7410(a)(1), (a)(2). The Administrator is required to approve a SIP if it satisfies the requirements set forth in section 110(a)(2) of the Act which mandates inclusion in each SIP of, inter alia, air pollutant emission limitations for stationary sources, schedules for compliance, and such other measures as may be necessary to insure attainment and maintenance of the NAAQS. 42 U.S.C. § 7410(a)(2). See Union Electric Co. v. EPA, 427 U.S. 246, 257, 96 S.Ct. 2518, 2525, 49 L.Ed.2d 474 (1976). The statute specifies that the SIP must provide for attainment of the applicable primary standard “as expeditiously as practicable” but no later than three years from the date of approval of such plan. 42 U.S.C. § 7410(a)(2)(A).
The Act also requires that revisions to a SIP must be submitted for approval to the Administrator. 42 U.S.C. § 7410(a)(3)(A). See Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 92, 95 S.Ct. 1470, 1488, 43 L.Ed.2d 731 (1975). As in the case of the original SIP, the Administrator must determine if the revision meets the requirements in section 110(a)(2) of the Act, and has been adopted by the state after reasonable notice and public hearings. 42 U.S.C. § 7410(a)(3)(A). If so, it must be approved. Id.
Under the 1970 Amendments, deadlines were imposed by which the states were required to attain primary NAAQS for particulate matter. See 42 U.S.C. § 7410(a)(2)(A). The deadline for all states was extended to December 31, 1982, by subsequent amendments to the Act. 42 U.S.C. § 7502(a)(1). However, because of the “unique hardships” in the steel industry and in order to encourage plant modernization the Act was amended in 1981 by the Steel Industry Compliance Extension Act (SICEA) to lengthen the time for compliance with SIP air pollution emission standards for steel companies until December 31, 1985. Pub.L. No. 97-23, 95 Stat. 139 (codified at 42 U.S.C. § 7413(e)). H.R. Rep. No. 121, 97th Cong., 1st Sess. 8-9, reprinted in 1981 U.S.Code Cong. & Admin.News 56, 59. Under SICEA, the Administrator has the discretion to “consent to entry of a Federal judicial decree, or to the modification of an existing Federal judicial decree” establishing a schedule for compliance by a steel-producing stationary emission source “extending beyond December 31, 1982, but ending not later than 1985” if several conditions, including investment in plant modifications, are met. 42 U.S.C. § 7413(e)(1).
Wheeling operates several plants, including the Sinter Plant, which EPA determined violated various primary NAAQS requirements. On March 19, 1979, Wheeling signed a consent decree with the United States and West Virginia, Ohio and Pennsylvania, the states where the relevant polluting plants were located, which was entered by the District Court of the Western District of Pennsylvania on November 26, 1979. With respect to the Sinter Plant, the decree required Wheeling to complete installation of particulate matter emission control equipment at the Sinter Plant by November 1, 1982, (later extended to November 30,1982) and to achieve compliance with the West Virginia SIP air pollution emission limitations by December 31, 1982.
In October 1981, Wheeling applied to EPA for relief under SICEA from, among other things, the compliance deadline for the Sinter Plant. On July 15, 1983, a Second Amendment to the consent decree was entered which extended the compliance dates for various Wheeling plants. Part XXIII dealt with the Sinter Plant and extended the date for its compliance to December 31, 1985. App. at 53-54. Under Paragraph 3 thereof, Wheeling was obligated to install the required emission control system in accordance with a schedule-which provided for submission of an emission control plan to West Virginia and EPA by December 31, 1984, required Wheeling to negotiate and let all major contracts for the emission control system by April 30, 1985, and required complete installation by November 30, 1985, and compliance with pollution limitations by December 31, 1985. App. at 53-54. Under Part XXVI and Appendix II-A of the Second Amendment, Wheeling obligated itself to make capital expenditures of $3,500,000 for the control system at the Sinter Plant by December 31, 1985. App. at 59, 87.
Wheeling did not make the capital expenditures required by the Second Amendment to the Consent Decree for the Sinter Plant by December 31, 1985, or thereafter. Wheeling did not comply with the pollution limitations for that Plant by December 31, 1985, as required by the Consent Decree, and apparently remains in non-compliance. At least it has never suggested to this court that it has now attained the required ambient air quality standard.
In 1982, EPA issued a policy statement regarding alternative emission systems which allow a state to treat all of the pollution-emitting devices of an existing plant within the same industrial grouping as though they were encased within a single “bubble”. See Emissions Trading Policy Statement, 47 Fed.Reg. 15076 (1982). Under the “bubble” concept, which has been upheld as a permissible construction by the EPA of the Clean Air Act Amendments of 1977, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), a state in a non-attainment area may, subject to EPA approval, permit revision of a SIP in a manner which allows a polluter from a stationary source to offset a decrease of pollution control at one source of excess emissions by a compensating increase of control of emissions from other sources, as long as there is no increase in the original emission limits. 47 Fed.Reg. at 15076, 15078.
The Second Amendment permits Wheeling to seek to implement an alternative emission system. According to the terms of Part XXXI, Paragraph 9 of the Second Amendment, however, Wheeling remains obligated to comply with the consent decree until final approval of an alternative system. The Second Amendment provides:
Defendant is not precluded by this consent decree from applying for an alternative emission reduction option [a “bubble”] involving air pollution emission sources addressed by this Order, pursuant to the Clean Air Act, U.S. EPA’s Emission Trading Policy, 47 Fed.Reg. 15076 (April 7, 1982), and any amendments thereto, and applicable State law. Defendant shall remain obligated to comply with all requirements of this Order which apply to a pending alternative emission reduction application unless and until a proposed alternative emission reduction option is approved under Section 110 of the Clean Air Act and appropriate amendments implementing such option are entered by this Court
(Emphasis added). App. at 76-77.
On November 27, 1985, Wheeling filed a Motion in the district court To Amend or Stay Certain Provisions of the Consent Decree relating to several of its polluting sources. Wheeling referred to its petition for reorganization under Chapter XI of the Bankruptcy Code filed April 16,1985, and a 98 day strike against it between July and October of 1985. With respect to the Sinter Plant, Wheeling sought a stay of its obligation under the Consent Decree to expend $3.5 million and to install the emission control system “pending action by the West Virginia Air Pollution Control Commission and EPA on [Wheeling’s] application for a bubble for the sinter plant.” Supp.App. at 33.
The EPA objected and sought penalties for Wheeling’s failure to install the positive windbox controls as required under the Second Amendment.
On December 23, 1985, the district court issued an order amending the Consent Decree with respect to various facilities. App. at 128-131. For the Sinter Plant emissions, the court substituted for Paragraph 3 of Part XXIII of the Consent Decree which contained the compliance deadlines a new paragraph containing no specific dates for compliance. In effect, the Court indefinitely relieved Wheeling of its obligation to make the expenditures for and install the emission control system at the Sinter Plant. The district court “supplemented” the Second Amendment to the Consent Decree to provide:
3. Compliance Strategy
Defendant has proposed that this source be brought into compliance through an alternative emission reduction option or “bubble” proposal. Defendant’s “bubble” proposal, which was submitted on May 24, 1984, is pending with the West Virginia Air Pollution Control Commission, hereinafter referred to as “WVAPCC”. To facilitate progress on control of this source, the WVAPCC is encouraged to complete its evaluation of Defendant’s proposal at the earliest possible date. If the WVAPCC approves the “bubble” proposal within thirty (30) days of this Order and in accordance with Section 110 of the Clean Air Act, 42 U.S.C. § 7410, and the regulations promulgated thereunder, including but not limited to, EPA’s Emission Trading Policy, 47 Fed.Reg. 15076 (April 7, 1982), Defendant shall implement the “bubble” proposal within sixty (60)-days after approval by the WVAPCC. If the “bubble” proposal is not approved by the WVAPCC within thirty (30) days from the date of this Order, Section 5 of this Order shall be vacated and a hearing shall be had to determine an expeditious schedule of implementing pollution control equipment at the Follansbee Sinter Plant.
App. at 130-131.
On January 7, 1986, EPA filed a Motion to Reconsider and Partially Vacate the December 23 order to the extent that it dealt with the Sinter Plant. EPA also filed a Motion for Civil Contempt and to Enforce Judgment; on February 24, 1986, EPA filed a Motion to Extend Time to Appeal; and on February 25, 1986, EPA filed a Motion for Summary Judgment.
On May 21, 1986, the district court denied all of EPA’s motions. In a Memorandum Opinion filed concurrently therewith, the district court stated that the Clean Air Act permits district courts to extend statutory compliance dates when circumstances warrant and held that the bankruptcy proceeding, the 98 day strike, Wheeling’s change in management, and its financial losses, together with Wheeling’s development of a dust suppressant program to reduce Sinter Plant emission, constitute changed circumstances which warrant relieving Wheeling of its obligations to install positive windbox controls pending its implementation of and EPA approval of its bubble proposal. App. at 133-142. EPA appeals from the Order of May 21, 1986, denying its motions and from the Order of December 23, 1985, amending the Consent Decree.
II.
Discussion
A.
Appealability
We must first address this court’s appellate jurisdiction. Wheeling asserts in its brief, without further explanation, that the district court order modifying the consent decree is not a final order. We reject that contention.
The district court’s order of December 23, 1985, modified the Consent Decree by substituting a provision with no specific compliance deadline in lieu of the December 31, 1985, deadline provided in the Second Amendment. It also “temporarily stayed” without date Wheeling’s obligation to make capital expenditures for air pollution facilities at the Sinter Plant. Modifications to consent decrees have been reviewed by this court as appealable orders. See, e.g., Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114 (3d Cir.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660 (1980) (affirming modification of consent decree requiring Commonwealth to perform medical testing); Mayberry v. Maroney, 558 F.2d 1159 (3d Cir.1977) (reversing order modifying consent decree prohibiting placing prisoners in a prison basement).
Furthermore, in In re Grand Jury Proceedings (U.S. Steel-Clairton Works), 525 F.2d 151, 154-56 (3d Cir.1975), we held that a district court’s order granting an indefinite stay of grand jury proceedings investigating violations of the Clean Air Act by United States Steel Corporation was a final order. There the district court had stayed the federal proceeding pending a final judgment in a state civil contempt action against U.S. Steel for failure to comply with air pollution limitations embodied in a consent decree. We noted that, “[ijnvestigation and possible prosecution of criminal violations of the Clean Air Act is effectively precluded by the district court’s stay,” and concluded that the district court’s indefinite stay “has the practical effect of a dismissal of the proceedings.” Id. at 155. In this case, the district court’s order modifying the Consent Decree has the practical effect of precluding EPA’s enforcement of the terms of the Consent Decree, the provisions of the Clean Air Act, and the West Virginia SIP. Whether viewed as an indefinite stay or an amendment of the Consent Decree, the order is final and appealable.
B.
Mandatory Compliance Deadlines
In the posture of the case before us, we need not decide if the district court has the power to extend a polluter’s compliance date beyond that set by the Clean Air Act and incorporated in Wheeling’s Consent Decree with the government and affected states. EPA concedes that the district court retains some equitable discretion in this respect but argues that it abused its discretion by amending the Consent Decree to indefinitely stay Wheeling’s obligations to comply with the statutory deadline, the West Virginia SIP and the Consent Decree. Wheeling counters that the district court’s action was reasonable in light of Wheeling’s circumstances.
In Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), a case arising under the Federal Water Pollution Control Act (FWPCA), the Supreme Court held that in light of the purpose and language of the statute and the statutory provisions for fines and criminal penalties to ensure compliance with the FWPCA’s prohibition of discharges without an EPA permit, the district court retained the discretion to decline to enjoin discharges by the Navy which had not polluted the waters. The Court relied on the traditional equitable discretion of the federal courts. Id. at 311-13, 102 S.Ct. at 1802-04. The Court recognized that in some statutes “Congress ... foreclosed the exercise of the usual discretion possessed by a court of equity,” id. at 313, 102 S.Ct. at 1804 (citing TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (imminent violation of the Endangered Species Act required injunctive relief)). It also stated that “Congress may intervene and guide or control the exercise of the courts’ discretion.” Id. Although the issue before us, that of statutory and consent decree compliance deadlines, is different than that before the Court in Romero-Barcelo, we will assume arguendo that the district court retains some equitable discretion to modify those deadlines. To determine the limits, if any, on the courts’ equitable discretion, we must look to the “purpose and language of the statute.” Id. at 314, 102 S.Ct. at 1804.
The language of the SICEA amendments to the Clean Air Act limiting the district court’s discretion to extend the deadline is clear. The Act states:
For a source which receives an extension under this subsection, air pollution requirements specified in Federal judicial decrees entered into or modified under this subsection that involves [sic] such source may not be modified to extend beyond December 31, 1985.
42 U.S.C. § 7413(e)(9); see also 42 U.S.C. § 7413(e)(1) (“The Administrator may, in his discretion ... consent to ... the modification of an existing Federal judicial decree ... establishing a schedule for compliance ... but ending not later than December 31, 1985”).
The legislative history of SICEA supports a strict construction of the statute’s final compliance date of December 31, 1985. The House bill was passed in lieu of the Senate bill, and the House Report makes clear that Congress intended strict compliance with the December 31, 1985, deadline. The Report states:
The committee emphasizes that the December 31, 1985 deadline is not selected as an arbitrary date for final compliance with the Act. During hearings on this matter, the steel industry agreed without qualification to a 1985 deadline date for meeting existing clean air requirements.
The following testimony expresses this commitment:
Mr. Waxman. Do you agree that the steel industry can comply with the 1985 deadline date for meeting existing clean air requirements?
Mr. Roderick [United States Steel Corporation]. Yes. There is no qualification on that, and remember that we absolutely will have entered into consent decrees enforceable by the court, and obviously we would be more able to do it by the end of 1985 than we would be by the end of 1982.
So there is no question whatsoever we are serious in the undertaking and we will honor the obligation.
Mr. Waxman. Does anyone on the panel disagree?
[No response.]
Mr. Waxman. The Chair notes that no one is asserting a negative comment. [Hearing (3/25/81) Tr. at 55] The Committee expects the steel indus-
try to honor this commitment.
H.R.Rep. No. 121, 97th Cong., 1st Sess. 11, reprinted in 1981 U.S.Code Cong. & Admin.News at 62.
Congress’ concern with its statutory deadline for compliance in SICEA is consistent with its earlier actions in enacting the 1970 and 1977 amendments to the Clean Air Act which strengthened the provisions of the Act and set mandatory deadlines for developing SIPs and for compliance therewith. In adopting the 1970 Amendments, Congress rejected the terms of the House bill which would have required compliance with primary standards within a “reasonable time” and instead accepted the Senate amendment which required attainment of primary standards within three years. H.R.Conf.Rep. No. 1783, 91st Cong., 2d Sess. 45, reprinted in 1970 U.S.Code Cong. & Admin.News 5374, 5377-78. Likewise, when Congress amended the Act in 1977 to provide specific authority for the Administrator to enter into “Delayed Compliance Orders”, (DCO), it specifically limited the orders to three years. See 42 U.S.C. § 7413(d)(1)(D). In discussing the need for the DCO provision, the House Report criticized the Administrator’s practice of entering into compliance agreements that “as construed and applied by EPA [result in] delays [that] are not limited to any particular date or time period.” H.R.Rep. No. 294, 95th Cong., 1st Sess. 56, reprinted in 1977 U.S.Code Cong. & Admin.News 1077, 1134.
It is evident therefore from the language of the statute and its legislative history that Congress placed great significance on the compliance dates and intended to limit, if not entirely eliminate, the district court’s equitable discretion to extend compliance.
C.
Pending “Bubble” Application
Even assuming that the courts have some retained equitable discretion, the district court’s reliance on the pending “bubble” application as a basis for its order extending Wheeling’s compliance requirement contravenes the consistent judicial interpretation of the Act. EPA does not dispute that Wheeling submitted an alternative emission reduction plan for a “bubble” to the West Virginia agency and that the application is still pending before that agency. EPA argues, however, that the pendency of such an application cannot relieve Wheeling of its obligation to meet its compliance deadlines, and that the district court’s reliance thereon was an error of law. We agree.
The general principle that the company is not relieved of its legal obligation to attain compliance with statutory, regulatory or judicially imposed obligations during the pendency of an application for relief or a variance was emphatically established in Train v. Natural Resources Defense Council) Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). There the Court stated:
As made clear in [Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3d Cir.1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973)], a polluter is subject to existing requirements until such time as he obtains a variance, and variances are not available under the revision authority until they have been approved by both the State and the Agency. Should either entity determine that granting the variance would prevent attainment or maintenance of national air standards, the polluter is presumably within his rights in seeking judicial review. This litigation, however, is carried out on the polluter’s time, not the public’s, for during its pendency the original regulations remain in effect, and the polluter’s failure to comply may subject him to a variety of enforcement procedures.
Id. at 92, 95 S.Ct. at 1488 (emphasis added).
As a basis for its holding that both EPA and State approval are required before a revision to a SIP is effective, the Train Court relied on 42 U.S.C. § 7410(a)(3)(A) (providing Administrator of EPA shall approve any revision meeting the requirements of 42 U.S.C. § 7410(a)(2) in a SIP after State approval). Nothing in EPA’s Emissions Trading Policy Statement which includes the “bubble” concept suggests that an application will be a basis for relieving a polluter from its previous obligations to meet the NAAQS and the schedules for compliance established in the SIPs and any consent decree. On the contrary, EPA’s Policy Statement expressly provides that, “These alternatives do not alter existing air quality requirements.” 47 FecLReg. at 15076.
The Consent Decree to which Wheeling bound itself acknowledges the possibility that Wheeling would apply for the “bubble” option as an alternative system for meeting the pollutant emission requirements of the Decree and the Act. However, Part XXXI, Paragraph 9 of the Second Amendment specifically provides that Wheeling remains obligated to comply with the requirements of the Consent Decree pending approval of an alternative system. See page 1080, supra.
A situation almost identical to this case was presented in United States v. National Steel Corp., 767 F.2d 1176 (6th Cir. 1985). National Steel was required by a consent decree to meet specific emission limitations at various facilities at its Great Lakes Steel Plant in accordance with stated compliance schedules. That decree also permitted the steel company to seek an alternative emission reduction option, but provided that the application would not be grounds for delaying the requirements of the consent decree. National Steel filed a “bubble” application, and did not take the steps required under the consent decree in the expectation that its bubble would be approved. The district court imposed penalties that exceeded $5 million pursuant to the provisions of the consent decree. The Court of Appeals affirmed, stating:
The command of the consent decree was clear; an application for a bubble would not postpone the compliance dates. The agency always indicated that it would hold National to the terms of the consent decree. In the amendment of the consent decree entered into by the parties and approved by the court in August, 1982, both parties acknowledged the continuing liability of National for the accruing penalties.
Id. at 1182.
In National Steel, the “bubble” application was ultimately disapproved by the EPA. In this case, Wheeling’s “bubble” application has not even been approved yet by the West Virginia agency before which it has been pending for more than two years. Moreover, EPA advised Wheeling by letter dated April 23, 1985, that its submission was deficient because it did not constitute a plan for an air pollutant emission control system as required by the Second Amendment. App. at 122-23. Until a revision is approved first by the state agency and then by EPA it is not effective and cannot be the basis of an order relieving it from the compliance deadlines. See Train v. Natural Resources Defense Council, Inc., 421 U.S. at 92, 95 S.Ct. at 1488; Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d at 358. See also 40 C.F.R. § 51.34 (1986).
Another recent Sixth Circuit case, United States v. Ford Motor Co., 814 F.2d 1099 (6th Cir.1987), provides added support for this conclusion. Ford had failed to comply with the EPA-approved Michigan SIP and instead negotiated a consent decree in state court with the Michigan agencies. Ford then attempted to interpose that consent decree as a defense in the EPA federal enforcement action. The district court accepted Ford’s position, but the Sixth Circuit reversed, holding that EPA retains the ultimate authority to approve revisions in SIPs, and that “the original emission limit remains fully enforceable until a revision or variance is approved by both the State and EPA.” At 1103. With respect to the effect of the state proceeding, the Sixth Circuit stated:
We observe at this point that standards for purification of the ambient air simply cannot be set along the boundaries of our 50 states. The winds, of course, recognize no such boundaries. The 50 states of this union compete intensely with one another for industry. As Congress has recognized, if state control of ambient air emissions were final, in short order, major shifts of smoke stack industries to states with the most lenient pure air standards would inevitably take place. Absent final authority in United States EPA, the attainment goals of the Clean Air Act would prove ephemeral.
At 1102.
There is simply no statutory, regulatory, or case authority that supports the district court’s reliance on Wheeling’s pending, “bubble” application as a basis for relieving it of the compliance schedule mandated by the statute, the SIP, and the Consent Decree until action on the application is completed. In so holding, the district court erred as a matter of law.
D.
So-Called “Changed Circumstances”
In the Memorandum Opinion denying EPA’s Motion for Reconsideration, the district court relied not only on the pending “bubble” application but also on the following which it denominated as “changed circumstances”: “Since entry of the second amendment in July, 1983 Wheeling-Pitt has filed for Chapter 11 bankruptcy, has experienced a 98 day labor strike, and has had a change in management. Losses in 1985 exceed $300 million.” App. at 140. Once again we must look to statutory language and Congressional intent to ascertain whether these are permissible bases for relieving Wheeling of its obligation to take action to cease emitting the prohibited pollutants.
Congress expressly provided that the automatic stay provisions of the Bankruptcy Code do not apply when the government is seeking to enforce its police or regulatory power. 11 U.S.C. § 362(b)(4) & (5). The legislative history of § 362(b)(4) states that: “where a governmental unit is suing a debtor to stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action or proceeding is not stayed under the automatic stay.” H.Rep. No. 595, 95th Cong., 2nd Sess. 343, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6299 (emphasis added).
In Penn Terra Ltd. v. Dept. of Environmental Resources, 733 F.2d 267 (3d Cir. 1984), this court construed § 362(b)(4) & (5) to exempt from the automatic stay an equitable action brought by the state environmental agency against the debtor to correct violations of various state environmental protection statutes and to enforce the terms of a prior consent decree. We held that the state’s action sought to force the debtor to rectify harmful environmental hazards and stated,
No more obvious exercise of the State’s power to protect the health, safety, and welfare of the public can be imagined. Indeed, both the Senate and the House committee reports on the Bankruptcy Reform Act explicitly acknowledge environmental protection as a part of the State’s police power.
Id. at 274 (footnote omitted). Penn Terra was referred to by the Supreme Court in Ohio v. Kovacs, 469 U.S. 274, 283-84 n. 11, 105 S.Ct. 705, 711 n. 11, 83 L.Ed.2d 649 (1985), where the Court distinguished the case before it, one to enforce a money judgment, from a case like Penn Terra, which it approvingly noted for the proposition that “[t]he automatic stay provision does not apply to suits to enforce the regulatory statutes of the State.”
The same statutory construction is a fortiori applicable to EPA’s regulatory actions to force compliance by a debtor with federal environmental laws. In In re Commonwealth Oil Refining Co., 805 F.2d 1175 (5th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3228, 96 L.Ed.2d-(1987), the court held that EPA was entitled to enforce its order requiring compliance by a debtor in Chapter 11 proceedings with the provisions of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-6991. The court held that “EPA has the authority to enforce its regulatory power ... to require [the debt- or] to comply with the federal and state environmental laws and regulations,” id., at 1183, that “EPA’s actions are not an attempt to enforce a money judgment, proscribed by [11 U.S.C.] § 362(b)(5), notwithstanding the fact that [the debtor] will be forced to expend funds in order to comply,” id. at 1184, and that “the police and regulatory exceptions [to the automatic stay] do not depend on a showing of imminent and identifiable harm or urgent public necessity.” Id. See also Cournoyer v. Town of Lincoln, 790 F.2d 971 (1st Cir.1986) (town’s action in state court to enforce its zoning ordinance by removing inventory of used truck parts from land of debtor in Chapter 11 proceedings and selling the inventory is pursuant to its “police or regulatory power” and hence exempted from the automatic stay).
It follows that Wheeling’s pending Chapter 11 status is not a basis on which the district court could have permissibly relied for its order relieving Wheeling of its obligation to comply with the relevant environmental statute, regulations and consent decree provisions.
Likewise, economic infeasibility is not a proper basis for staying compliance with the Clean Air Act. In Union Electric Co. v. EPA, 427 U.S. at 246, 96 S.Ct. at 2520, the Court rejected the argument that the Administrator had the authority to disapprove a SIP on the basis of technological or economic infeasibility. The Supreme Court stated:
[T]he 1970 Amendments to the Clean Air Act were a drastic remedy to what was perceived as a serious and otherwise uncheckable problem of air pollution. The Amendments place the primary responsibility for formulating pollution control strategies on the States, but nonetheless subject the States to strict minimum compliance requirements. These requirements are of a “technology-forcing character,” Train v. NRDC, [421 U.S. at 91, 95 S.Ct. at 1487,] and are expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible.
Id. at 256-57, 96 S.Ct. at 2525. The Court stated further:
[The Act’s] three-year deadline for achieving primary air quality standards is central to the Amendment’s regulatory scheme and, as both the language and the legislative history of the requirement make clear, it leaves no room for claims of technological or economic infeasibility.
Id. at 258, 96 S.Ct. at 2526.
The Court’s holding in Union Electric was specifically noted and approved by Congress when it enacted the 1977 amendments. The House Report states:
The dispute over the availability of variances, revisions, postponements and enforcement orders and their relationship to the attainment and maintenance of air quality standards ... relates to two questions. The first is whether or not the Administrator is authorized (or required) to disapprove a State plan, because it is “economically or technologically infeasible” or because “it does not reflect the most cost-effective system” for attaining and maintaining the national ambient air quality standards. That question has now been settled by the Supreme Court in [Union Electric ], and the Committee takes no issue with the holding of that case.
H.R.Rep. No. 294, 95th Cong., 1st Sess. 56, reprinted in 1977 U.S. Code Cong. & Admin. News 1077, 1134.
Thus, the district court’s order improperly considered Wheeling’s economic straits and its recent losses as a basis for extending the compliance requirement "beyond the December 31, 1985, deadline. It should be noted in this respect that the original compliance order requiring expenditures for the emission control system was entered in 1979. Wheeling was aware of the need to make the expenditures long before its recent economic problems.
Moreover, as indicated by the legislative history previously referred to, Congress was aware of the financial problems the steel industry was facing, but in enacting SICEA it intended to give the steel companies only a limited time during which they could delay compliance with the Clean Air Act in order to modernize their plants. See H.R. Rep. No 121, 97th Cong., 1st Sess. 1, reprinted in 1981 U.S. Code Cong. & Admin. News at 56.
The steel companies were required during the “stretch out” period “to make continual progress toward achieving clean air requirements by 1985, and to continue the installation of pollution control technology on all existing sources.” H.R.Rep. No. 121, 97th Cong., 1st Sess. 1-2, reprinted in 1981 U.S. Code Cong. & Admin. News at 56-57. Thus, knowing of the financial problems the steel companies were facing, Congress intended that consent decrees entered or modified by SICEA provide for timely installation of pollution control equipment. Wheeling’s current financial problems are neither so new or unforeseen as to warrant modifying the consent decree, particularly in the face of clear legislative intent to the contrary.
The district court’s Memorandum Opinion also states that “EPA’s position would, in all probability, force the closing of the sinter plant.” App. at 133. Wheeling concedes before this court that “Operation of the sinter plant is not ... an essential element of [Wheeling’s] steel production facilities.” Appellee’s Brief at 11. While continued operation of steel facilities may advance a state’s economic interest, the Glean Air Act reflects a congressional policy decision that removal of pollutants from the air which endanger the lives and health of the populace is a more compelling public interest. The district court was not authorized to impose its own balancing of policy over that of Congress. In this respect, the language used by the Supreme Court in TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), where it affirmed an injunction against the operation of the $100 million Tellico Dam because it would lead to the extinction of the snail darter, is instructive:
Here we are urged to view the Endangered Species Act “reasonably,” and hence shape a remedy “that accords with some modicum of common sense and the public weal.” ... But is that our function? We have no expert knowledge on the subject of endangered species, much less do we have a mandate from the people to strike a balance of equities on the side of the Tellico Dam. Congess has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as institutionalized caution.
Id. at 194, 98 S.Ct. at 2302. If the courts must defer to Congress’ judgment as to the need to preserve the snail darter, surely the district court must defer to Congress’ decision to require compliance with the emission limitations no later than December 31, 1985.
The district court also referred to the 98 day strike as a “changed circumstance” in its Memorandum Opinion although it never explained the legal relevance. The Clean Air Act and amendments thereto contain no force majeure exception. Nonetheless, EPA concedes the applicability of such an exception and the Second Amendment to the Consent Decree embodies such an exception for “the occurrence of, and to the extent of, any delay caused by circumstances entirely beyond [Wheeling’s] control.” App. at 68. In such an instance, Wheeling is required to notify the Court, EPA and the affected states in writing, identifying the cause and giving other details. App. at 68-69. Wheeling’s Motion to Amend or Stay Certain Provisions of the Consent Decree referred to three notices of force majeure. Supp.App. at 28. None of those notices refer to the Sinter Plant, although some do refer to the effect of the strike on other compliance deadlines. Having failed to utilize the force majeure exception of the Consent Decree as to the Sinter Plant, Wheeling cannot now rely on the effect of the strike to excuse its non-compliance.
Although a consent decree is a judicial act, it has many of the attributes of a contract voluntarily undertaken, United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37, 95 S.Ct. 926, 934-35, 43 L.Ed.2d 148 (1975); United States Steel Corp. v. Fraternal Ass’n of Steel Haulers, 601 F.2d 1269, 1274 (3d Cir.1979), and a party to a consent decree, having made a “free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment,” bears a burden which “is perhaps even more formidable than had they litigated and lost.” Id. “Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.” United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932). It follows that the district court abused its discretion in basing its order on Wheeling’s Chapter 11 filing, its economic losses, the possibility that the Sinter Plant would be closed, and the strike.
III.
Conclusion
For the reasons set forth, we conclude that the district court erred as a matter of law and abused its discretion in entering the order amending the Consent Decree as to the Sinter Plant and staying Wheeling’s obligation to comply with the deadlines set forth therein. At oral argument, EPA suggested that Wheeling’s defaults are so clear that this court should entertain EPA’s contempt motion and motion for summary judgment. Although the basis for EPA’s impatience is evident from the record, we are unwilling to pretermit the district court’s role in reconsidering these motions upon remand. We are confident that the district court will recognize the sense of urgency embodied in this opinion and will act accordingly.
The orders of the district court of December 23, 1985, and May 21, 1986, will be reversed insofar as they amend and stay the provisions applicable to the Sinter Plant in the Second Amendment to the Consent Decree. The case will be remanded to the district court for further proceedings consistent with this opinion. The mandate will issue forthwith.
. West Virginia, which was a party to the consent decree and an intervenor in the district court, has notified this court that it does not intend to actively participate in this appeal but that it would like to continue to be shown as a party. Neither of the other states that intervened has participated in this appeal.
. In light of our holding, we need not decide whether the order would also be appealable as an injunction under 28 U.S.C. § 1292(a)(1). See Sansom Committee v. Lynn, 735 F.2d 1552, 1553 (3d Cir.), cert. denied, 469 U.S. 1017, 105 S.Ct. 431, 83 L.Ed.2d 358 (1984) (holding district court order which extended a deadline provided in a consent decree to be "in the nature of a preliminary injunction" and appealable under 28 U.S.C. § 1292(a)(1)).
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E. GRADY JOLLY, Circuit Judge:
The petitioners in this case seek review of a final rule promulgated by the Environmental Protection Agency (“EPA”). Because potentially important information bearing on the factual basis for the rule has come to light after the rule’s promulgation, because in this close case that information may be determinative, and because the parties themselves seem to acknowledge the potential importance of this information, we remand this case to the EPA to reconsider its rule in the light of this new information.
I
The petitioners, Shell Chemical Co., Exxon Chemical Americas, Eastman Kodak Co., and Union Carbide Corporation, manufacture a substance known as mesityl oxide (“MO”) which is used as a chemical intermediate in the manufacture of an industrial solvent known as methyl isobutyl ketone (“MIBK”).
The Environmental Protection Agency (“EPA”), pursuant to its rulemaking authority under the Toxic Substances Control Act (“TSCA”), has promulgated a final rule requiring that manufacturers and processors of MO must test the substance for its harmful effects on human health. The petitioners seek review of this rule and argue that it should be set aside on grounds that it is not supported by substantial evidence.
In June 1979, the Interagency Testing Committee (“ITC”) recommended that MO be tested for various health hazards. The EPA issued a proposed test rule for MO in the July 5, 1983, issue of the Federal Register. Following notice and comment proceedings, during which the EPA received numerous criticisms of the proposed rule from members and representatives of affected industries, the EPA promulgated its final order on July 6, 1986. The order required manufacturers and processors of MO to test it for potential human health effects (specifically for chronic, genetic or cancerous effects). The "EPA estimated that the testing costs for the final rule would range from $1,872,800 to $2,824,000. Four manufacturers of MO now seek review of the EPA’s rule.
II
Under section 4(a)(1) of the TS’CA, the EPA must require testing of a chemical substance to develop health or environmental data if the Agency finds that:
(A) (i) the manufacture, distribution in commerce, processing, use or disposal of a chemical substance or mixture or that any combination of such activities, may present an unreasonable risk or injury to health or the environment,
(ii) there are insufficient data and experience upon which the effects of such manufacture, distribution in commerce, processing, use, or disposal of such substance or mixture or of any combination of such activities on health or the environment can reasonably be determined or predicted, and
(iii) testing of such substance or mixture with respect to such effefcts is necessary to develop such data; or
(B) (i) a chemical substance or mixture is or will be produced in substantial quantities, and (I) it enters or may reasonably be anticipated to enter the environment in substantial quantities or (II) there is or may be significant or substantial human exposure to such substance or mixture,
(ii) there is insufficient data, and experience upon which the affects [sic] of the manufacture, distribution in, commerce, processing, use, or disposal of such substance or mixture or of any combination of such activities on health or the environment can reasonably be determined or predicted, and
(iii) testing of such substance or mixture with respect to such effects is necessary to develop such data;
Codified as 15 U.S.C. § 2603(a).
The EPA concluded, pursuant to section 4(a)(1)(A), the manufacture, processing and distribution in commerce of MO “may present an unreasonable risk” to human health due to potential chronic, mutagenic (genetic) and oncogenic (cancerous) effects.
The provisions of the TSCA providing for judicial review provide that an EPA rule promulgated pursuant to the Act must be sustained if it is supported by substantial evidence. 15 U.S.C. § 2618(a)(1)(B). It should be noted that the substantial evidence test is less deferential than the “arbitrary and capricious” standard used in reviewing many agency actions.
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).
The parties dispute the degree of risk that must be supported by substantial evidence. Resolution of this dispute will require a careful inquiry into the interplay between the statutory language of risk and the substantial evidence test in the context of this case. A delicate line-drawing problem is thus presented. Obviously, the agency need not conclusively find that MO presents an unreasonable health risk, since, in that case, there would be no need for further testing, and the substance could then be directly regulated. On the other hand, the statutory language contemplates some sort of finding of risk, otherwise all substances covered by the Act would be subject to testing. It goes without saying that the specific facts are of crucial importance in this case.
In its rulemaking record, the EPA notes that MO’s use has declined in recent years, presently confined largely to its role as an intermediate in the manufacture of MIBK. This use presents only limited exposure to humans because only a few hundred workers are involved, and production takes place in an enclosed, controlled environment where potential exposure to MO is very limited. At oral argument, however, the EPA maintained that post-promulgation developments showed that the use of MO was increasing and that such increased use was not confined to the manufacture of MIBK. In their post-argument submissions, however, the petitioners strongly contest the EPA’s statements about these later developments, arguing that since the EPA’s promulgation of its testing rule, the use of MO has declined significantly to the point where only about 100 workers are involved in MO operations at the facilities that manufacture and use the substance.
The post-promulgation developments concerning both the amount of MO used and the way in which the substance is and will be utilized are clearly relevant in assessing how much exposure to MO there is and will be to humans. As such, these developments are highly pertinent to determining whether there is substantial evidence to show that MO may present an “unreasonable risk”; the pertinence is all the more accentuated because we view this case as a close one. We believe it advisable, therefore, to remand this case for the EPA to make supplemental findings in the administrative record concerning the changes in MO use that have occurred since the testing rule was promulgated and, if determinable, that will occur in the foreseeable future. The EPA should then reconsider its testing rule in the light of those findings.
We are, of course, aware that in every administrative review case, there are subsequent developments that may bear on the validity of an agency rule, but in this close case we believe that the need for updated factfinding warrants a remand for a more sure-footed appellate decision.
Ill
For the reasons discussed earlier, this case is remanded to the EPA for further proceedings in accordance with this opinion. Pending those proceedings, implementation of the EPA’s MO testing rule is stayed.
REMANDED.
. In the past, MO has been used as a solvent in a variety of contexts. MO has also been used in the formulation of pesticides.
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OPINION OF THE COURT
ALITO, Circuit Judge:
Frank Conroy operated and, through another corporation, owned a printing company. After the company ceased doing business, drums and canisters of hazardous waste were found on the premises. The Commonwealth of Pennsylvania Department of Environmental Resources (DER) ordered Conroy to arrange for proper disposal of the waste, but he failed to comply with this order. Instead, he and his wife, Rosemary Conroy, filed a Chapter 11 bankruptcy petition. Concerned that Conroy’s failure to remove the hazardous waste was endangering public health and safety and the environment, the DER decided to initiate an “interim response” under Pa.Stat.Ann., tit. 35, § 6020.505(b), and the DER obtained a court order giving it access to the printing company’s premises. Through a private contractor, the DER cleaned up this facility and then filed an administrative expense claim with the bankruptcy court under 11 U.S.C. § 503(b)(1)(A), seeking to recover the costs it had incurred. The bankruptcy court awarded the DER $103,293.00 — the amount it had paid to the contractor — but the bankruptcy court denied the DER’s request for an additional 10% to cover administrative and legal expenses, 144 B.R. 966. On appeal, the district court held that the DER was entitled to the entire amount it sought, 153 B.R. 686. We affirm.
The Pennsylvania Hazardous Sites Cleanup Act prohibits the “release” of a hazardous substance and imposes liability and penalties on those responsible. See Pa.Stat. Ann., tit. 35, §§ 6020.507(a), 6020.1101, 6020.-1104. Abandonment of a hazardous substance constitutes a “release.” Pa.Stat.Ann., tit. 35, § 6020.103. Therefore, Pennsylvania law effectively prohibited the Conroys from abandoning the hazardous wastes located on the printing facility premises.
Since the bankruptcy laws were revised in 1978, debtors have argued that state laws prohibiting the abandonment of hazardous substances are preempted by the literal language of Section 554 of the Bankruptcy Code, 11 U.S.C. § 554. However, in Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986), the Supreme Court held that Section 554 does not preempt a state law that, in a reasonable effort to promote public health or safety, prohibits the abandonment of property containing hazardous wastes. It appears, therefore, that if the DER had not itself undertaken to clean up the printing company facility, the Conroys could not have escaped their obligation to do so by abandoning the hazardous property in question. Furthermore, if Frank Conroy had arranged for cleanup of the facility after he had filed a Chapter 11 petition, the costs of this cleanup would have constituted administrative expenses under 11 U.S.C. § 503(b)(1)(A), since they are a portion of “the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case.”
Here, the DER, rather than Conroy, arranged and paid for cleanup of the printing facility. Under similar circumstances, the Second and Sixth Circuits have held that response costs incurred by environmental agencies should be classified as administrative expenses. In re Chateaugay Corp., 944 F.2d 997, 1009-10 (2d Cir.1991); In re Wall Tube & Metal Products, Co., 831 F.2d 118, 123-24 (6th Cir.1987). These courts have reasoned that since the estate could not avoid such costs through abandonment, the “expenses to remove the threat posed by such substances are necessary to preserve the estate.” Chateaugay, 944 F.2d at 1010. We agree with these decisions, cf. In re Torwico Electronics, Inc., 8 F.3d 146, 149-50 (3d Cir.1993) (discussing Chateaugay approvingly), and we therefore hold that the costs incurred by the DER in contracting for cleanup of the printing facility were properly classified as administrative expenses.
Contrary to the Conroys’ argument, this court’s decision in Southern Railway Co. v. Johnson Bronze Co., 758 F.2d 137 (3d Cir.1985), does not dictate a different result. We read the portion of that decision that is most closely related to the present case to mean that a state administrative order requiring cleanup of hazardous wastes may not be afforded priority over unsecured claims pursuant to 11 U.S.C. § 105(a), which provides that a bankruptcy court “may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” Southern Railway said nothing about whether a bankruptcy court may grant administrative expense priority to the costs that an environmental agency incurs in cleaning up a hazardous waste site that could not be abandoned under state law.
The Conroys have argued that the amount paid by the DER to the cleanup contractor was excessive. Both the bankruptcy court and the district court held to the contrary, and after reviewing the record, we likewise conclude that the Conroys’ argument lacks merit.
We also hold that the district court was correct in awarding the DER $10,329.30 to compensate for the costs it incurred in obtaining authorization for the cleanup and in coordinating and monitoring the contractor’s work. The Conroys contend that this award was actually a “surcharge,” rather than compensation for “actual” and “necessary” expenses, and that in any event the DER did not adequately substantiate these expenses. We disagree.
First, we see no reason why the administrative and legal costs incurred by the DER in arranging for the cleanup cannot qualify as administrative expenses under 11 U.S.C. § 503(b)(1)(A). Such costs may constitute
“actual, necessary costs and expenses of preserving the estate.” Id. Second, we think that the amount of the award in this case— 10% of the amount paid to the contractor— was sufficiently substantiated. In enacting Pa.Stat.Ann., tit. 35, § 6020.507(b), 'the Pennsylvania legislature apparently concluded that the DER’s “administrative and legal costs” will generally amount to “10% of the amount paid for the response action or the actual costs, whichever is greater.” This implicit legislative finding is reasonable, and we believe that it is sufficient to satisfy the DER’s burden of proving its entitlement to these administrative expenses. While, the Conroys and other interested parties could certainly have attempted to show that the 10% figure was excessive in this case, the Conroys have not directed our attention to any such evidence. Moreover, there is evidence in the record that tends to substantiate the reasonableness of the amount awarded.
For these reasons, we conclude that the district court properly held that the DER is entitled to $113,622.30 in administrative expenses, and we therefore affirm the order of the district court.
. Several courts and commentators have read Southern Railway as declaring that Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985), resolved the question whether such costs are administrative expenses entitled to priority reimbursement. See, e.g., In re Hemingway Transp., Inc., 73 B.R. 494, 502 (Bankr.D.Mass.1987), aff'd, 126 B.R. 656 (D.Mass.1991), aff'd in part and vacated in part, 993 F.2d 915 (1st Cir. 1993), cert. denied, - U.S. -, 114 S.Ct. 303, 126 L.Ed.2d 251 (1993); In re Pierce Coal & Constr., Inc., 65 B.R. 521, 529 (Bankr.N.D.W.Va.1986); In re Virginia Builders, Inc., 153 B.R. 729, 734 n. 10 (Bankr.E.D.Va.1993); In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 500 (Bankr.W.D.Mich.1991). See also Daniel Klerman, Earth First7 CERCLA Reimbursement Claims and Bankruptcy, 58 U.Chi.L.Rev. 795, 803 & n. 56 (1991). Even if this reading of Southern Railway is plausible, we believe that it would be unwise to adopt such a reading in light of the Supreme Court’s subsequent opinion in Midlantic. Midlantic, we think, indicates that the Supreme Court does not view Kovacs as having resolved the reimbursement priority issue. See Midlantic, 474 U.S. at 498 n. 2, 106 S.Ct. at 758 n. 2 (noting that whether a state's cleanup costs are administrative expenses is “not before us”). Cf. Virginia Builders, 153 B.R. at 734 n. 10 (stating that in light of Supreme Court's Midlantic decision, Southern Railway "is questionable precedent”).
Contrary to the Conroys' suggestion, the Ninth Circuit's decision in In re Dant & Russell, Inc., 853 F.2d 700 (1988), is also distinguishable. That case held that a lessor who has a bankruptcy claim against a lessee for the costs of cleaning up hazardous wastes deposited by the lessee on the leased property is not entitled to administrative expense priority. However, the Dant & Russell court was careful to state that
[q]uite a different result [ ] is warranted when the cleanup costs result from monies expended for the preservation of the bankruptcy estate. See, e.g., Lancaster v. Tennessee (In re Wall Tube & Metal Prod. Co., 831 F.2d 118, 124 (6th Cir.1987)) (state entitled to administrative expense priority for its response costs from the debtor's estate under CERCLA); ... In re Distrigas Corp., 66 B.R. 382, 386 (Bankr.D.Mass. 1986) (to the extent that the state expended funds to cleanup debtor’s contaminated property (whose properly absent cleanup had little or no value), it would be entitled to a first priority administrative expense claim); ... In re Stevens, 68 B.R. 774, 783 (D.Maine 1987) (state entitled to administrative expense priority for costs it incurred in removing waste from property of the estate).
853 F.2d at 709.
. This provision reads as follows:
(b) Amount. — In an action to recover response costs and natural resource damages, the department shall include administrative and legal costs incurred from its initial investigation up to the time that it recovers its costs. The amount attributable to administrative and legal costs shall be 10% of the amount paid for the response action or the actual costs, whichever is greater.
. The Conroys also contend that the DER failed to substantiate its claim in the manner required by a Rule 9016.1 of the Local Rules of the United States Bankruptcy Court for the Western District of Pennsylvania. This rule imposes general requirements on parties submitting administrative claims. We do not interpret it to mean that the DER may not satisfy its burden of proof under the particular circumstances present here by relying on the legislative finding implicit in Pa.Stat. Ann., tit. 35, § 6020.507(b). Therefore, we need not consider whether the bankruptcy court, in promulgating local rules of practice, could resolve a legal question of this nature.
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OPINION
M. SMITH, Circuit Judge:
In this appeal, we address the requirement under Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., that federal agencies must consult with the United States Fish and Wildlife Service (FWS) or the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (Service) prior to taking any agency action that could affect an endangered or threatened species or its critical habitat. We reaffirm that Section 7(a)(2) requires such consultation, so long as the agency has “some discretion” to take action for the benefit of a protected species. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1024 (9th Cir.2012) (en banc) (quoting NRDC v. Houston, 146 F.3d 1118, 1126 (9th Cir.1998)). We hold that: (1) intervening events have not rendered this action moot; (2) the contractual provisions before us do not deprive Plaintiffs-Appellants (Plaintiffs) of standing to bring a procedural challenge under Section 7(a)(2); and (3) the federal Bureau of Reclamation (Bureau) was required to engage in Section 7(a)(2) consultation because, in renewing the challenged contracts, it retained “some discretion” to act in a manner that would benefit the delta smelt. We therefore reverse the district court’s judgment and remand for further proceedings.
I. Background
A. Statutory Structure
The ESA protects endangered and threatened species and their critical habitats. Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged with identifying threatened and endangered species and designating critical habitats for those species. 16 U.S.C. § 1533. The FWS and the Service administer the ESA. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b).
Section 7 of the ESA requires federal agencies to ensure that none of their activities jeopardizes the continued existence of endangered or threatened species or adversely modifies those species’ critical habitats. 16 U.S.C. § 1536(a)(2); see also Karuk Tribe, 681 F.3d at 1020. Section 7’s implementing regulations provide that “[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitatfs].” 50 C.F.R. § 402.14(a). If an agency determines that an action may affect a listed species or habitat, Section 7(a)(2) requires that the agency consult with the FWS or the Service before engaging in the action. We have previously explained:
The purpose of consultation is to obtain the expert opinion of wildlife agencies to determine whether the action is likely to jeopardize a listed species or adversely modify its critical habitat and, if so, to identify reasonable and prudent alternatives that will avoid the action’s unfavorable impacts. The consultation requirement reflects “a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies.”
Karuk Tribe, 681 F.3d at 1020 (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) and citing Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 974 (9th Cir.2003)).
Section 7(a)(2) consultation is required so long as the federal agency has “some discretion” to take action for the benefit of a protected species. Karuk Tribe, 681 F.3d at 1024 (quoting Houston, 146 F.3d at 1126 and citing Turtle Island, 340 F.3d at 974-75; Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the Navy, 383 F.3d 1082, 1092 (9th Cir.2004)). There is no duty to consult, however, for actions “that an agency is required by statute to undertake.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 669, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007); see also Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 928 (9th Cir.2008) (stating that this exception resolves “the problem of an agency being unable to ‘simultaneously obey’ both Section 7 and a separate statute which expressly requires an agency to take a conflicting action” (quoting Home Builders, 551 U.S. at 666, 127 S.Ct. 2518)); 50 C.F.R. § 402.03 (providing that Section 7(a)(2) consultation is only required for proposed agency actions over which “there is discretionary Federal involvement or control”).
Once Section 7(a)(2) consultation is complete, the FWS or the Service must provide the agency with a written biological opinion “setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h). If the Secretary concludes that the proposed agency action would place the listed species in jeopardy or adversely modify its critical habitat, “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [Section 7(a)(2) ] and can be taken by the Federal agency ... in implementing the agency action.” 16 U.S.C. § 1536(b)(3)(A).
B. Factual and Procedural History
The Bureau manages California’s Central Valley Project — a series of dams, reservoirs, canals, and pumps that diverts and draws water from the California River Delta. The Central Valley Project delivers approximately seven million acre-feet of water to California water users each year and is one of the largest water storage and distribution systems in the world.
The delta smelt is a small fish that lives in the California River Delta. In 1993, the FWS concluded that the delta smelt’s population had declined by ninety percent over the previous twenty years and listed it as a “threatened” species under the ESA. Determination of Threatened Status for the Delta Smelt, 58 Fed.Reg. 12,854, 12,855 (Mar. 5, 1993). The FWS further determined that “Delta water diversions,” including the Central Valley Project, are the most significant “synergistic cause[]” of the decline in the delta smelt population. Id. at 12,859.
In the 1960s, the Bureau entered into a number of long-term contracts pertaining to the Central Valley Project. In 2004, two groups of these contracts had expired, or were about to expire: (1) the Delta-Mendota Canal Unit Water Service Contracts (DMC Contracts); and (2) the Sacramento River Settlement Contracts (Settlement Contracts). (The DMC Contracts and the Settlement Contracts are sometimes referred to collectively as the Contracts.) The Settlement Contracts are forty-year agreements between the Bureau and holders of certain senior water rights. These contracts grant the Bureau some rights to the encumbered water while also providing senior rights holders a stable supply of water. The DMC Contracts are water supply agreements that allow water users, who do not claim rights as senior users, to draw water from the Delta-Men-dota Canal.
In the early 2000s, the Bureau prepared a proposed Operations Criteria and Plan (Plan) to, inter alia, provide a basis for renewing the Contracts. Pursuant to Section 7 of the ESA, the Bureau next initiated consultation with the FWS regarding the effect of the proposed Plan on the delta smelt. The FWS rendered an initial Biological Opinion in 2004 (the 2004 Opinion), which concluded that the Bureau’s Plan would not jeopardize the delta smelt. We subsequently invalidated the 2004 Opinion. See Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1069 (9th Cir.2004), amended by 387 F.3d 968 (9th Cir.2004). In 2005, the FWS issued a revised Biological Opinion (the 2005 Opinion), which also concluded that the Plan would not jeopardize the delta smelt. The district court invalidated the 2005 Opinion, and the Bureau did not appeal.
Also in 2004 and 2005, the Bureau itself prepared biological assessments that concluded that renewal of the Contracts would not adversely affect the delta smelt. The Bureau also requested additional consultation with the FWS regarding its plans to renew the Contracts. The FWS responded via a series of letters, in which it concurred with the Bureau’s determination that renewing the Contracts was not likely to adversely affect the delta smelt. Each FWS concurrence letter explained that renewing the Contracts would increase the demand for water, but that, according to the 2004 Opinion and the 2005 Opinion, this demand would not adversely affect the delta smelt. The letters did not assess the Contracts’ potential effects on the delta smelt beyond the reasoning borrowed from the invalidated 2004 Opinion and 2005 Opinion.
Throughout 2004 and 2005, the Bureau renewed 141 Settlement Contracts and 18 DMC Contracts based on the FWS’ concurrence letters. On December 15, 2008, the FWS issued a revised Biological Opinion (the 2008 Opinion), which, contrary to the findings of the 2004 Opinion and 2005 Opinion, concluded that the Bureau’s Plan would jeopardize the delta smelt and adversely modify its critical habitat.
In 2008, Plaintiffs filed a Third Amended Complaint in the United States District Court for the Eastern District of California, challenging the validity of the 41 renewed Contracts that they deem most harmful to the delta smelt. In seeking to set aside these contracts, Plaintiffs argue that the Bureau violated Section 7(a)(2) of the ESA by failing to adequately consult with the FWS prior to renewing the Contracts. In a series of opinions, the district court granted summary judgment in favor of Defendants-Appellees (Defendants). The district court held that Plaintiffs lack Article III standing to challenge the DMC Contracts because Plaintiffs cannot establish that their injuries are fairly traceable to the Bureau’s alleged procedural violation. The district court further held that, while Plaintiffs have standing to challenge the Settlement Contracts, Plaintiffs’ claims regarding these contracts fail as a matter of law because Section 7(a)(2)’s consultation requirement does not apply to the Settlement Contracts.
II. Analysis
A. Mootness
We first consider whether intervening events have rendered this action moot. Defendants argue that this appeal is now moot because after the 2005 Biological Opinion was invalidated, the Bureau engaged in a renewed consultation with the FWS, which led to the issuance of the 2008 Opinion.
1. Legal Standard
Article Ill’s “ease-or-eontroversy” requirement bars federal courts from deciding “‘questions that cannot affect the rights of litigants in the case before them.’ ” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam)). It is not enough that a case presents a live controversy when it is filed; an actual controversy must exist at all stages of federal court proceedings. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-90, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
A case is not moot if a federal court can grant the parties any effective relief. Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir.2006). Moreover, “[t]he party asserting mootness bears the burden of establishing that there is no effective relief that the court can provide.” Id.
2. Discussion
This action is not moot because the 2008 Opinion does not provide Plaintiffs with the relief that they seek. The 2008 Opinion concluded that the Bureau’s Plan would likely jeopardize the delta smelt and adversely modify its critical habitat. In so doing, the 2008 Opinion explained that the Bureau’s Plan must be modified from what the Bureau envisioned in 2004 and 2005, and the Opinion identified a “reasonable and prudent alternative” to the proposed Plan that would avoid jeopardizing the delta smelt.
The issuance of the 2008 Opinion does not moot this appeal. The 2008 Opinion merely assesses the general effects of the Bureau’s Plan, and it does not represent a consultation with the FWS concerning the impact of the Bureau’s decision to renew the specific contracts before us. Although the DMC Contracts and Settlement Contracts were renewed based on now-invalidated opinions, the Bureau has never reconsulted with the FWS regarding the effects of renewing these contracts, nor has it sought to amend the challenged contracts to incorporate the protections proposed in the 2008 Opinion. The remedy Plaintiffs seek is an injunction requiring reconsultation with the FWS and renegotiation of the challenged contracts based on the FWS’ assessment. This relief remains available.
B. Standing—The DMC Contracts
The district court held that Plaintiffs lack standing to challenge the validity of the DMC Contracts because Plaintiffs cannot establish that their injury is fairly traceable to the Bureau’s alleged procedural violation. The district court reasoned that: (1) the DMC Contracts contain a provision that absolves the government from liability for breaches that result from complying with its legal obligations (the shortage provision); (2) this provision permits the Bureau to take necessary actions to meet its legal obligations under the ESA; so (3) the Bureau could not have negotiated any contractual terms that better protect the delta smelt, and any injury to the delta smelt is not traceable to the contract renewal process. We reject the district court’s reasoning.
1. Legal Standard
To establish Article III standing, a plaintiff must demonstrate that: (1) he suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Friends of the Earth, 528 U.S. at 180-81, 120 S.Ct. 693 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). One who challenges the violation of “a procedural right to protect his concrete interests can assert that right without meeting all the normal standards” for traceability and redressibility. Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. Such a litigant need only demonstrate that he has “a procedural right that, if exercised, could protect [his] concrete interests and that those interests fall within the zone of interests protected by the statute at issue.” Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir.2005), rev’d in part on other grounds by Home Builders, 551 U.S. 644, 127 S.Ct. 2518.
We have held that alleged violations of Section 7(a)(2)’s consultation requirement constitute a procedural injury for standing purposes. Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 971 (9th Cir.2003) (citing Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir.2001)); see also Defenders of Wildlife, 420 F.3d at 957. For this reason, to establish standing, a litigant who asserts a procedural violation under Section 7(a)(2) need only demonstrate that compliance with Section 7(a)(2) could protect his concrete interests. Defenders of Wildlife, 420 F.3d at 957.
2. Discussion
Plaintiffs contend that the Bureau violated Section 7(a)(2) by failing to adequately consult with the FWS regarding threats to the delta smelt, and by renewing the DMC Contracts in reliance on what it knew, or should have known, to be a faulty analysis by the FWS. The district court held that Plaintiffs lack standing to bring this claim because the DMC Contracts contain a shortage provision that provides:
If there is a Condition of Shortage [of water] because of errors in physical operations of the Project, drought, other physical causes beyond the control of the Contracting Officer or actions taken by the Contracting Officer to meet legal obligations then, except as provided in subdivision (a) of Article 18 of this Contract, no liability shall accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom.
The district court reasoned that, because this provision absolves the Bureau of liability if it breaches certain contractual provisions “ ‘to meet legal obligations’ such as Section 7(a)(2) of the ESA,” the Bureau could not have negotiated DMC Contracts that would provide the delta smelt with any greater protection. Therefore, the district court concluded that “[the] shortage provision[ ] breakfs] any chain of [causality] between the execution ... of the DMC Contracts and harm to the delta smelt.”
The district court erred in holding that the shortage provision deprives Plaintiffs of standing to challenge the DMC Contracts. Because Plaintiffs allege a procedural violation under Section 7 of the ESA, they need only show that, if the Bureau engages in adequate consultation, the DMC Contracts could better protect Plaintiffs’ concrete interest in the delta smelt than the contracts do currently. Defenders of Wildlife, 420 F.3d at 957.
Contrary to the district court’s finding, the shortage provision does not provide the delta smelt with the greatest possible protection. Nothing about the shortage provision requires the Bureau to take actions to protect the delta smelt. The provision is permissive, and merely absolves the United States of liability if there is a water shortage resulting from, inter alia, “actions taken ... to meet legal obligations.” But even if we read the provision to place an affirmative obligation on the Bureau to take actions to benefit the delta smelt, the provision only concerns the quantity of water that will be made available to the DMC Contractors. There are various other ways in which the Bureau could have contracted to benefit the delta smelt, including, for example, revising the contracts’ pricing scheme or changing the timing of water deliveries. Because adequate consultation and renegotiation could lead to such revisions, Plaintiffs have standing to assert a procedural challenge to the DMC Contracts.
C. Section 7(a) (2)’s Consultation Requirement — The Settlement Contracts
The district court also held that, although Plaintiffs have standing to assert procedural challenges to the Settlement Contracts, Plaintiffs’ claims regarding these contracts fail as a matter of law. The court reasoned that the Bureau was not required to consult under Section 7(a)(2) prior to renewing the Settlement Contracts because the Bureau’s discretion in renegotiating these contracts was “substantially constrained.” We reverse this determination, because consultation is required whenever the agency has “some discretion” to take action for the benefit of a protected species. Karuk Tribe, 681 F.3d at 1024 (quoting Houston, 146 F.3d at 1126 and citing Turtle Island, 340 F.3d at 974-75; Ground Zero Ctr. for Non-Violent Action, 383 F.3d at 1092).
1. Legal Standard
Section 7(a)(2)’s consultation requirement is triggered so long as a federal agency retains “some discretion” to take action for the benefit of a protected species. Karuk Tribe, 681 F.3d at 1024 (quoting Houston, 146 F.3d at 1126 and citing Turtle Island, 340 F.3d at 974-75; Ground Zero Ctr. for Non-Violent Action, 383 F.3d at 1092). Whether an agency must consult does not turn on the degree of discretion that the agency exercises regarding the action in question, but on whether the agency has any discretion to act in a manner beneficial to a protected species or its habitat. See Karuk Tribe, 681 F.3d at 1024-25 (explaining that the relevant consideration is only whether the agency could influence third party activities to protect a listed species); see also Nat’l Wildlife Fed’n, 524 F.3d at 928-29 (holding that consultation is required so long as it is possible for the agency to comply with both the ESA and other statutory requirements). The agency lacks discretion only if another legal obligation makes it impossible for the agency to exercise discretion for the protected species’ benefit. Id. at 927-28 (citing Home Builders, 551 U.S. at 669, 127 S.Ct. 2518).
2. Application
In holding that the Bureau was not required to consult under Section 7(a)(2) pri- or to renewing the Settlement Contracts, the district court focused on Article 9(a) of the original Settlement Contracts, which provides in pertinent part:
During the term of this contract and any renewals thereof: (1) It shall constitute full agreement as between the United States and the Contractor as to the quantities of water and the allocation thereof between base supply and Project water which may be diverted by the Contractor from its source of supply for beneficial use on the land shown on Exhibit B ...; (2) The Contractor shall not claim any right against the United States in conflict with the provisions hereof.
(emphasis added). According to the district court, the Bureau was not required to consult because this provision “substantially constrained” the Bureau’s discretion to negotiate new terms in renewing the contracts.
In so concluding, the district court applied an erroneous standard. Section 7(a)(2)’s consultation requirement applies with full force so long as a federal agency retains “some discretion” to take action to benefit a protected species. Karuk Tribe, 681 F.3d at 1024 (quoting Houston, 146 F.3d at 1126 and citing Turtle Island, 340 F.3d at 974-75; Ground Zero Ctr. for Non-Violent Action, 383 F.3d at 1092). While the parties dispute whether Article 9(a) actually limits the Bureau’s authority to renegotiate the Settlement Contracts, it is clear that the provision does not strip the Bureau of all discretion to benefit the delta smelt and its critical habitat.
First, nothing in the original Settlement Contracts requires the Bureau to renew the Settlement Contracts. Article 2 of the original contracts provides that “renewals may be made for successive periods not to exceed forty (40) years each.” (emphasis added). This language is permissive and does not require the Bureau to execute renewal contracts. Since the FWS has concluded that “Delta water diversions” are the most significant “synergistic cause[]” of the decline in delta smelt, 58 Fed.Reg. at 12,859, it is at least plausible that a decision not to renew the Settlement Contracts could benefit the delta smelt and their critical habitat.
But even assuming, arguendo, that the Bureau is obligated to renew the Settlement Contracts and that Article 9(a) limits the Bureau’s discretion in so doing, Article 9(a) simply constrains future negotiations with regard to “the quantities of water and the allocation thereof....” Nothing in the provision deprives the Bureau of discretion to renegotiate contractual terms that do not directly concern water quantity and allocation. And, as previously noted with respect to the DMC Contracts, the Bureau could benefit the delta smelt by renegotiating the Settlement Contracts’ terms with regard to, inter alia, their pricing scheme or the timing of water distribution.
For these reasons, we conclude that, in renewing the Settlement Contracts, the Bureau retained “some discretion” to act in a manner that would benefit the delta smelt. The Bureau was therefore required to engage in Section 7(a)(2) consultation prior to renewing the Settlement Contracts.
III. Conclusion
We reverse the district court’s judgment and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
. We recognize that the Central Valley Project is governed by a complicated set of federal and state laws, and we express no view as to whether other legal obligations may compel the Bureau to execute renewal contracts with holders of senior water rights.
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PER CURIAM:
This is an appeal from an order of Hon. John F. Dooling, Jr., United States District Judge for the Eastern District of New York, denying a motion by the plaintiffs for a preliminary injunction pending the completion and implementation of an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The relief sought would enjoin the federal defendants from approving, issuing, granting or authorizing motor vehicle permits except to provide for essential services and for the health and safety of the residents of and visitors to the Fire Island National Seashore; and from allowing motor vehicles to be operated on the Seashore except for these purposes. The plaintiffs as property owners and as representatives of property owner organizations within the Fire Island National Seashore commenced this action on August 9, 1972. On August 22, 1973, a motion for preliminary injunctive relief was made. On September 18, 1973, Judge Dooling denied the motion in part with respect to items not in issue before us. (This denial was affirmed here. Bider-man v. Morton, 497 F.2d 1141 (2d Cir. 1974)). The motor vehicle permit question was held in abeyance since the National Park Service (NPS) had planned to issue interim motor vehicle regulations. Rather than approach the environmental problems involved in a piecemeal fashion, the NPS deferred action until a Master Plan and EIS for the National Seashore have been prepared.
Plaintiffs thereupon sought and received a four-day evidentiary hearing in June and July, 1974 on the motor vehicle issues. Intervenor, the Constitutional Rights Committee of Kismet, which is an appellee-eross-appellant here, claiming that the existing motor vehicle regulations are in fact onerous and impose restraints on their constitutional due process and equal protection rights, also participated in the hearings. The Committee sought preliminary injunctive relief against the federal defendants’ enforcement of the regulations with respect to Committee members and the defendants’ refusal to issue permits based upon grounds not set forth in the regulations. In addition to several experts, numerous residents and municipal officials testified at the hearing.
On July 19, 1974, Judge Dooling filed a comprehensive 25-page memorandum and order which denied injunctive relief to the plaintiffs as well as to the inter-venor. It is beyond cavil that the determination of a trial court denying injunc-tive relief pendente lite will not be set aside by an appellate court unless an abuse of discretion or clear mistake of law has been established. 414 Theater Corp. v. Murphy, 499 F.2d 1155, 1159 (2d Cir. 1974); Exxon Corp. v. City of New York, 480 F.2d 460, 464 (2d Cir. 1973). We find none here and affirm substantially on the grounds set forth in the opinion below.
While the issues raised below are broad in scope, with respect to the plaintiffs’ claims Judge Dooling found in essence that there was a failure to establish that the incremental environmental effect of continuing to issue private vehicle permits over the environmental effect of the use of the Island for vacation habitation and for indispensable vehicular traffic, had any significant dimensions. He noted that present federal and municipal regulations and guidelines indicated a sympathetic concern for the ecological problems facing the Island, together with a consciousness that some measure of motor vehicle usage is in any event inevitable. He flatly found that “[m]otor vehicle traffic is not, as plaintiffs assert . . . , destroying the Seashore. That is not, on the evidence, the fact.” He also found that plaintiffs’ “meagre” hard core data did not support the assertion that there has been a great and accelerating growth in motor vehicle traffic; such “is not found to be the fact.” With respect to the intervenor, the court found that there was no “unavoidable hardship” involving the residents of Kismet and insufficient evidence of prescriptive rights to traverse certain areas by automobile.
We find nothing in the record to substantiate the claim of either appellants or the cross-appellant that these findings are clearly erroneous. Of substantial significance here is the representation by NPS officials that, on or about January 1, 1975, a Master Plan and EIS for the entire Seashore will be issued which will include proposed motor vehicle regulations in the context of the overall ecological system and which will provide ample opportunity for public comment and the expression of the conflicting views revealed below. In view of these circumstances, we believe it particularly inappropriate to interfere with the discretion of the trial court and to impose interim motor vehicle regulations in the face of overall planning by responsible federal agencies. This is especially true when the summer season has passed and the Fire Island community is spared the onslaught of the vacationers from the Metropolis and environs. We believe, however, that it is in the interest of the public and the parties involved here in particular that NPS adhere to its announced target date, January 1, 1975, for the completion of the Plan and EIS.
Affirmed.
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OPINION
CYNTHIA HOLCOMB HALL, Circuit Judge:.
On June 26, 1991, Greenpeace Action (“Greenpeace”) filed a complaint against the Secretary of Commerce (the “Secretary”) alleging violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370d, and section 7(a)(2) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536(a)(2), by the Secretary and the National Marine Fisheries Service (the “Service”). Greenpeace sought declaratory relief and an injunction against continued pollock fishing in the Gulf of Alaska until the Service complied with the law. On September 30, 1991, Greenpeace moved for summary judgment and a permanent injunction. The Service filed a cross motion for summary judgment. The district court denied Greenpeace’s motions and granted the Service’s motion in an order entered on October 11, 1991. Greenpeace appeals from that order. The district court had jurisdiction under 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (Administrative Procedure Act) and 16 U.S.C. § 1540(g) (Endangered Species Act, citizen suit). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
I
FACTS
This case arose out of concern over the fate of the Steller sea lion, which inhabits the waters of the northern Pacific Ocean. Between 1960 and 1989, the Steller sea lion’s Alaskan population suffered a precipitous decline, resulting in its classification in 1990 as a “threatened species” under the ESA. See Listing of Steller Sea Lions as Threatened Under the Endangered Species Act, 55 Fed. Reg. 49,204 (Dep’t of Comm.1990) (final rule). Though the Steller sea lion’s decline has abated over the last three years, it has not stopped. The harvesting of pollock, a groundfish that comprises about half of the Steller sea lion’s diet, has been cited as a likely factor in the Steller sea lion’s decline.
Greenpeace contends that studies — including the Service’s own data — demonstrate that pollock fishing is the “leading factor” in the sea lion’s decline. Greenpeace emphasizes that the primary danger is not the depletion of the over-all biomass of pollock in the Gulf, but rather localized depletion; the Steller sea lion’s proximity to its food source is crucial, and fisheries and sea lions often compete for the same stock of pollock. The Secretary’s final rule listing the Steller sea lion as a threatened species takes a less definitive position on the effects of pollock fishing:
Some data show a high negative correlation between the amount of walleye pollock caught and sea lion abundance trends in the eastern Aleutians and central Gulf of Alaska. It is possible that a reduction in availability of pollock, the most important prey species in most areas, is a contributing factor in the decline in the number of Steller sea lions in western and central Alaska.
55 Fed.Reg. at 49,208 (emphasis added).
Pursuant to section 302(h)(1) of the Fisheries Conservation Management Act (“Magnu-son Act”), 16 U.S.C. § 1852(h)(1), the North Pacific Fishery Management Council (“the Council”) issued its Fishery Management Plan (“the Plan”) and an environmental impact statement (EIS) for the Gulf of Alaska Groundfish Fishery in 1978. An amendment to the Plan established a procedure for setting annual harvest levels for various species. Every September the Council makes public a preliminary Stock Assessment and Fishery Evaluation Report, as well as preliminary specifications for the acceptable biological catch (ABC) and the total allowable catch (TAC). The ABC is a measure of the size of the catch that the ecosystem can sustain. The TAC is the total tonnage of fish that fishermen may retain in a particular year, Preliminary TACs are replaced by final TACs when they are approved by the Secretary.
in September 1990, the Council made its ■preliminary recommendations for 1991. It recommended a pollock TAC of 73,400 metric tons (mt), the same as the 1990 level. In December 1990, the Council’s assessment of the 1991 fishing stock was released, and based on that report, the Council revised its proposed TAC to 130,000 mt, a 41 percent increase over the 1990 level. Greenpeace sent a letter to the Secretary objecting to the proposed TAC, alleging that the 41 percent increase over the 1990 level would violate ESA. Without the preparation of an EIS, Greenpeace alleged, implementing the increase would also violate NEPA. The letter charged that the Council had not adequately considered the effect of its plan on the Stel-ler sea lion and recommended that the 1991 TAC remain at the 1990 level. It attached a report by the Aquatic Resources Conservation Group voicing concern over the modell-ing technique used to arrive at the proposed ABC and TAC and recommending an ABC of 103,400 mt and a TAC of 71,010 mt.
The Council’s proposed TAC was never implemented. The 1991 fishery opened under an interim TAC, equal to one quarter of the 1990 quota. That limit was exceeded by mid-February and the fishery was closed. In March 1991, the Secretary deferred approval of the recommended TAC for further evaluation of its impact on the Steller sea lion’s food supply. At that time he entered into a consultation with the Service, pursuant to section 7(a)(2) of the ESA.
In the course of the section 7 consultation, the Service collected and analyzed new data, and in June issued a biological opinion recommending a TAC of 103,400 mt, allocated temporally and geographically to prevent local depletions of pollock. It also recommended the implementation of a ten nautical mile (nm) no-trawl zone around the Steller sea lion rookeries. The opinion concluded that if implemented under the proposed conditions, the 1991 TAC was not likely to jeopardize the Steller sea lion. It stated that the effects of pollock harvesting on the Steller sea lion’s ability to obtain food were uncertain, but that the proposed TAC left available a stock of pollock sufficient both to reproduce and to meet the Steller sea lion’s annual food needs. It also determined that various measures it proposed were adequate to prevent temporary local depletions that may affect Steller sea lion feeding success. In June, the Service produced an environmental assessment, pursuant to 40 C.F.R. § 1501.4(a) — (c) (1991), analyzing the impact of the TAC on the environment and concluding that an EIS was unnecessary.
The Secretary considered the recommendations of the Service, as well as those of the Steller Sea Lion Recovery Team, and ultimately set both the ABC and TAC for 1991 at 103,400 mt and adopted the emergency measures proposed in the June biological opinion. These measures went into effect and the fishery was reopened on June 13, 1991. See Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands Area, 56 Fed.Reg. 28,112 (Dep’t of Comm.1991) (notice of initial harvest specifications for pollock).
Catches of groundfish unexpectedly jumped at the end of the third quarter of 1991, and although the Secretary closed the fishery early, the third quarter harvest was in excess of the quarterly allowance. In September, before reopening the fishery for the fourth quarter, the Service prepared a new environmental assessment. The assessment noted that the third-quarter overrun was small compared to the total pollock biomass and that the pollock biomass was at its highest levels since the early 1980s. The Service therefore concluded that the Steller sea lion’s decline could not be attributed to a decline in pollock abundance and that none of the management options being considered for the fourth quarter would significantly affect the quality of the human environment. Under these circumstances, the Service determined that NEPA did not require that an EIS be prepared before the fourth quarter fishery could be opened.
The Service also prepared a section 7 biological opinion for the fourth quarter, reiterating its position that the effect of commercial pollock fishing on the Steller sea lion was uncertain. It concluded that given this uncertainty, the small size of the proposed fourth quarter harvest (3 percent of the estimated exploitable Gulf biomass), and the emergency management safeguards, the fourth quarter harvest “was not likely to jeopardize the continued existence of the Steller sea lion.” When the fourth quarter fishery closed on October 25, 1991, the total harvest for 1991 was 6,000 metric tons below the allowed level.
On January 28, 1991, before the Secretary issued his final rule, Greenpeace sent a notice of intent to file a citizen’s suit under the ESA, objecting to the increase in the TAC proposed by the Council in December, 1990. The notice asserted that the proposed increase was likely to jeopardize the Steller sea lion and if it was not disallowed, Greenpeace would sue.
On June 26, 1991, a week after the adoption of the final rule, Greenpeace filed a complaint in federal district court seeking declaratory and injunctive relief against the Secretary. The Complaint charged that the Secretary’s implementation of the 1991 TAC violated the ESA because it was done without preparation of an adequate biological opinion and without consideration of the best available scientific and commercial data concerning the status of the fishery and its potential impact on the Steller sea lion. It further alleged that implementation of the TAC without preparation of an EIS or an adequate environmental assessment violated NEPA.
With respect to the alleged violations of the ESA, Greenpeace sought an order directing the Secretary to comply with the Act by ensuring that the continued harvest of pollock “is not likely to jeopardize the continued existence and recovery of the threatened Steller sea lion” and by preparing “a legally and scientifically adequate biological opinion ... concerning the risks posed by pollock fishing” to the Steller sea Hon. With respect to the alleged violations of NEPA, Greenpeace sought an order directing the Secretary to prepare “a legally adequate [environmental impact statement] or [environmental assessment] examining and disclosing the significant environmental effects of implementing the 1991 TAC.” Greenpeace also requested an injunction prohibiting further pollock harvesting until the Secretary com-pfied with these duties.
The parties filed cross motions for summary judgment, and on October 10, 1991 the district court granted summary judgment for the defendants. The court held that nothing in the record supported a claim that the Secretary had violated the ESA. The record showed that his decision not to undertake or consider additional studies before issuing his finding of “no jeopardy” was not arbitrary or capricious, and that the finding “was based on relevant factors and demonstrated no clear error of judgment.” It also concluded that nothing in the record supported a charge that the Secretary had violated NEPA. The record demonstrated that the Secretary had adequately assessed the impact of his action on the environment and had taken protective measures, and that his decision not to undertake an EIS was not arbitrary or capricious. The district court denied Greenpeace’s motion for a stay of the opening of the fourth quarter fishery pending appeal. On October 16, 1991, an emergency motions panel of this Court also denied Greenpeace’s motion for a stay.
II
MOOTNESS
The 1991 fishing season has ended and the 1991 TAC has expired. Consequently, Appellees argue that the issues presented by this appeal are moot. They maintain that because the 1992 amendments to the Fishery Management Plan' and the 1992 TAC have been determined based on an entirely new administrative record, this Court cannot afford Greenpeace the declaratory or injunctive rehef it seeks. They also argue that the issues presented are not “capable of repetition yet evading review.” Appellees’ burden of demonstrating the mootness of this case is a heavy one. See Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir.1989).
Although we cannot grant Greenpeace effective rehef on its claim that the 1991 TAC was unlawfully approved, we conclude that this action “is one of those extraordinary cases in which the complained of activity may be repeated and yet evade review.” Alaska Fish & Wildlife Fed’n v. Dunkle, 829 F.2d 933, 939 (9th Cir.1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1290, 99 L.Ed.2d 501 (1988). Government actions fall within this category if (1) the duration of the challenged action is too short to allow full litigation before it ceases, and (2) there is a reasonable expectation that the plaintiffs will be subjected to it again. Id.
The regulation challenged was in effect for less than one year, making it difficult to obtain effective judicial review. Id,.; Maryland People’s Counsel v. FERC, 761 F.2d 768, 773 (D.C.Cir.1985). The major issue— whether the Secretary has adequately examined the effects of pollock fishing on the Steller sea lions — is likely to recur in future years. In fact, the Secretary has relied on the same biological opinion in support of the 1992 TAC, and has declined to prepare an EIS. See Groundfish of the Gulf of Alaska, Groundfish Fishery of the Bering Sea and Aleutian Islands Area, 57 Fed.Reg. 2,683 (Dep’t of Comm.1992) (final rule). Finally, there is a continuing public interest in determining the standards governing the Secretary’s decision to authorize a certain level of pollock fishing in the Gulf of Alaska. See Joint Bd. of Control v. United States, 832 F.2d 1127, 1130 (9th Cir.1987), cert. denied, 486 U.S. 1007, 108 S.Ct. 1732, 100 L.Ed.2d 196 (1988); Alaska Fish & Wildlife Fed’n, 829 F.2d at 939.
Appellees argue that this action need not have evaded review because Greenpeace could have preserved the issue by obtaining a preliminary injunction against all pollock fishing in the Gulf of Alaska. See Headwaters, 893 F.2d at 1016. We disagree. Although the harvest of pollock could have been enjoined, the expiration of the 1991 TAC could not. No injunction could have preserved this challenge to a short-term rule. We conclude that this action is not moot.
Ill
NEPA VIOLATIONS
The district court upheld the Service’s decision not to prepare an EIS for the fourth quarter fishery, finding that the record did not support the need for such action. It found that although commercial fishing may have adversely affected the Steller sea lion in the past, the dangers posed by fishing had been diminished in the fourth quarter by the implementation of the. mitigation measures. The court also found there to be no significant controversy regarding the effects of the fourth quarter fishery that would warrant an impact statement. Finally, the court found that the Secretary adequately addressed the effects of the 1991 TAC on the Steller sea lion and other species, and adequately explained how the mitigation measures would protect the sea lion.
A
Standard of Review
In this Circuit, we have heretofore reviewed an agency’s decision not to prepare an initial EIS under a “reasonableness” standard. See, e.g., Sierra Club v. United States Forest Service, 843 F.2d 1190, 1192 (9th Cir.1988). The Supreme Court’s decision in Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), requires us to reexamine this practice. Although that case reviewed an agency’s decision not to supplement an existing EIS, distinguishing the particular decision at issue as one that involved “a factual dispute” about the impact of new scientific information on prior scientific conclusions, the Court’s reasoning appears to be equally apposite to cases that present challenges to an agency’s decision not to prepare an initial EIS.
When an agency has attempted to comply with NEPA’s dictates and an aggrieved party challenges its determination that the proposed action does not warrant an EIS, the case often presents “a factual dispute the resolution of which implicates substantial agency expertise” and “ ‘requires a high level of technical expertise.’ ” Marsh, 490 U.S. at 376, 377, 109 S.Ct. at 1860, 1861 (quotations omitted). In such a case, it would contravene Marsh to review the agency’s determination under a standard other than “arbitrary and capricious.”
Our cases reviewing challenges to an agency’s decision not to prepare an initial EIS after Marsh have thus far continued to apply the reasonableness standard of review. See Seattle Comm. Council Fed’n v. FAA, 961 F.2d 829, 832 (9th Cir.1992); Northwest Envtl. Defense Ctr. v. Bremen, 958 F.2d 930, 936 (9th Cir.1992); LaFlamme v. FERC, 945 F.2d 1124, 1128-29 (9th Cir.1991). Although Seattle Community Council Federation and LaFlamme did not mention Marsh or its implications, Northwest Environmental Defense Center remarked on the possibility that Marsh’s arbitrary and capricious standard might apply. That case found it unnecessary to decide the question, however, since the court’s review under a reasonableness standard produced the same result. 958 F.2d at 936 n. 5.
In this ease, Greenpeace complains of the lack of “a legally adequate” EIS or environmental assessment. But Greenpeace’s challenges to the Service’s failure to prepare an EIS turn on factual determinations, not legal principles. The challenges do not concern whether or not NEPA applies, because the Service has assumed that it does and has proceeded under NEPA’s requirements, preparing two environmental assessments that each resulted in a finding of no significant impact. The questions Greenpeace now raises are as follows: (1) whether the fishery management measures implemented to mitigate possible adverse effects were adequate to render such presumed effects not significant; (2) whether there was sufficient public controversy at the time the Service announced the TAC to compel the conclusion that the TAC’s effect was significant; (3) whether the management measures would be effective to prevent further declines among the Steller sea lion; and (4) whether the Service’s assumption that the TAC’s effect on harbor seals would be similar to its effect on the sea lion was permissible. Each requires resolution of factual disputes between the Service’s scientific conclusions and those of Greenpeace’s experts.
Thus, we are squarely faced with a case that falls within the Supreme Court’s reasoning in Marsh. We must decide, as a threshold matter, whether this case also falls within its rule. We conclude that it does. We see no reason to impose a different standard of review on an agency’s decision not to prepare an initial EIS when the agency itself applied the same ‘rule of reason’ in making that determination, see 490 U.S. at 373-74, 109 S.Ct. at 1859, and the dispute is of the same factbound character as that presented in Marsh, see id. at 376-77, 109 S.Ct. at 1860-61. Although the difference between the two standards may not be of “great pragmatic consequence,” id. at 377 n. 23, 109 S.Ct. at 1861 n. 23, we conclude that when a litigant challenges an agency determination on grounds that, in essence, allege that the agency’s “expert review ... was incomplete, inconclusive, or inaccurate,” id. at 376-77, 109 S.Ct. at 1861, the greater degree of deference expressed by the arbitrary and capricious standard is appropriate.
We note that our sister circuits which had previously followed a standard of reasonableness have adopted the Supreme Court’s reasoning in Marsh in reviewing challenges to initial EIS determinations reached following preparation of an environmental assessment. See Los Ranchos, 956 F.2d at 972-73; Sabine River Authority v. United States Dep’t of Interior, 951 F.2d 669, 678-79 & n. 2 (5th Cir.1992); Goos, 911 F.2d at 1291-92; North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538 (11th Cir.1990). We join them in holding that review of a factbound challenge to an agency’s determination not to prepare an initial EIS, made after considerable agency review of a project’s environmental impact, is governed by the arbitrary and capricious standard.
This standard requires us to ensure that an agency has taken the requisite “hard look” at the environmental consequences of its proposed action, carefully reviewing the record to ascertain whether the agency decision is “founded on a reasoned evaluation ‘of the relevant factors.’” Marsh, 490 U.S. at 373-74, 378, 109 S.Ct. at 1859 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971)). This inquiry into the facts is to be searching and careful. Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. But “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh, 490 U.S. at 378, 109 S.Ct. at 1861. Once we are satisfied that an agency’s exercise of discretion is truly informed, “we must defer to ‘th[at] informed discretion.’ ” Id. at 377, 109 S.Ct. at 1861 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976)). Greenpeace suggests four reasons why we should find the actions it challenges to have been arbitrary and capricious.
B
First, Greenpeace argues that the Service has admitted pollock fishing may have significant adverse effects on the Steller sea lion. An agency must prepare an EIS if “substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor.” LaFlamme v. FERC, 852 F.2d 389, 397 (9th Cir.1988) (internal quotations omitted). “The plaintiff need not show that significant effects will in fact occur, but if the plaintiff raises substantial questions whether a project may have a significant effect, an EIS must be prepared.” Id.; see also Founder tion for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1177-78 (9th Cir.1982) (standard is whether “the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor”) (internal quotations omitted).
The Service’s environmental assessment of the fourth quarter fishery recognizes that commercial fisheries “have been identified in the literature as possible factors in the population decline,” but suggests that “Steller sea lion declines can not [sic] be attributed to declines in gulf-unde pollock abundance.” (emphasis added). The environmental assessment does, however, “speculate” that “[IJocalized depletions of pollock and other Steller sea lion prey may have occurred due to [the] spatial and temporal concentration of fishing effort that could have contributed to the decline of the Steller sea lion.”
Despite its uncertainty, the Service operated from the assumption that localized deple-tions might be having an adverse impact on the Steller sea lion, and concluded it was best to take precautions. It therefore recommended that the fourth quarter fishery be subject to the management measures described in the June biological opinion and environmental assessment. Although the effectiveness of these measures was unknown, the Service concluded that if the measures were implemented, opening the fourth quarter fishery under the 1991 TAC would not pose a great enough threat to the Steller sea lion to warrant an impact statement. The issue, then, is not whether the uncertainty surrounding the effect of pollock depletions on the Steller sea lion mandated the preparation of an EIS. It is whether, assuming that pollock depletion has had an adverse impact, the 1991 TAC in combination with the mitigation measures formed such an adequate buffer against that depletion that any possible depletion would be too minor to warrant an impact statement.
Greenpeace presented to the district court affidavits raising questions about the Service’s analyses and conclusions regarding the impact of the 1991 TAC and the effectiveness of the management measures. These affidavits do not themselves demonstrate that the fourth quarter fishery, as implemented under the Secretary’s management measures, posed a danger to the Steller sea lion. Rather, they criticize the Service for failing to assess the effects of the TAC on the availability (as opposed to abundance) of pollock or to refute the evidence of a causal connection between pollock fishing and the decline of the Steller sea lion. They also question the Service’s methodology, which they claim ignored hydroacoustic survey estimates measuring the biomass of pollock, and instead employed less rehable methods for estimating biomass.
The Service contends that its decisions were based on a review of adequate scientific data and that the criticisms offered by Greenpeace’s affiants merely represent a difference of scientific opinion. We concur in the Service’s assessment of Greenpeace’s complaints. The Service’s conclusions are clearly based on substantial — though not dis-positive — scientific data, and not on mere speculation. Moreover, the June 5,1991 biological opinion reveals that the Service did indeed consider the hydroacoustic survey estimates.
In Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir.1985), we upheld a decision by the Fish and Wildlife Service not to prepare an impact statement in connection with its issuance of a permit allowing the taking of Mission Blue butterflies. In response to Friends’ argument that the agency had based its decision on faulty data, we held that “NEPA does not require that we decide whether an [environmental assessment] is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology.” Id. at 986.
While Greenpeace cites several instances in which this Circuit has set aside an agency decision not to prepare an EIS, only in Wild Sheep did the court mandate reconsideration after the agency had prepared an environmental assessment. In Wild Sheep, the Forest Service’s failure to address “certain crucial factors, consideration of which was essential to a truly informed decision whether or not to prepare an EIS,” rendered its conclusion that no statement was necessary unreasonable. 681 F.2d at 1178. Unlike Wild Sheep, the record in this case reveals no complete failure to consider crucial factors. Contrary to Greenpeace’s assertions, its affidavits do not set forth facts demonstrating that the fishery harvest specifications and mitigation measures may have “disastrous effects” on the Steller sea lion. They demonstrate only that there is uncertainty as to how pollack fishing affects the sea lion, which is undisputed, and that the Service did not prove harm to the sea lion was impossible. To set aside the Service’s determination in this ease would require us to decide that the views of Greenpeace’s experts have more merit than those of the Service’s experts, a position we are unqualified to take.
C
Next Greenpeace argues that substantial public controversy over the potential adverse affects of pollock fishing mandate preparation of an EIS. The existence of a public controversy over the effect of an agency action is one factor in determining whether the agency should prepare such a statement. See 40 C.F.R. § 1508.27(b)(4) (1991); LaFlamme, 852 F.2d at 400-01; Jones v. Gordon, 792 F.2d 821, 828-29 (9th Cir.1986); Wild Sheep, 681 F.2d at 1182. A federal action is controversial if “ ‘a substantial dispute exists as to [its] size, nature, or effect.’ ” Wild Sheep, 681 F.2d at 1182 (quoting Rucker v. Willis, 484 F.2d 158, 162 (4th Cir.1973)).
Greenpeace argues that the affidavits of scientists it presented to the district court demonstrate “widespread uncertainty and dispute throughout the scientific community concerning the environmental significance of pollock fishing” in the Gulf of Alaska. We agree with the district court that Greenpeace may not establish a scientific controversy post hoc, through the affidavits of its own scientists and the experts it has hired, when at the time of the Service’s action, there existed no substantial dispute that should have alerted the Service to the concerns that Greenpeace now raises.
In Wild Sheep, we found a substantial dispute where the agency “received numerous responses from conservationists, biologists, and other knowledgable individuals, all highly critical of the [environmental assessment] and all disputing [its] conclusion....” 681 F.2d at 1182. But in Jantzen, we recognized that where “virtual agreement exists among local, state, and federal government officials, private parties, and local environmentalists,” the criticisms of the plaintiff and its experts are not sufficient to demonstrate the existence of a public controversy. 760 F.2d at 986-87.
Public comment was solicited in September, November, and December 1990, when the proposed 1991 TAC was first noticed and recommended for approval by the Secretary, and in June 1991, when the final 1991 TAC, as modified, was approved and mitigating management measures were implemented. Neither occasioned an outpouring of public protest such as that involved in Wild Sheep. See 681 F.2d at 1175 & n. 10, 1180, 1182. Greenpeace did protest, supplying a report by the Aquatic Resources Conservation Group. The ABC of 103,400 mt recommended in this report was the same as the ABC actually adopted. Although the report recommended different mitigation measures than were finally adopted, there was no dispute that mitigation measures should be imposed. Regardless of what Greenpeace’s experts now say, at the time the 1991 TAC and emergency measures were implemented, there was no substantial controversy about the effects of those measures. Furthermore, the Service was able to develop a consensus among parties who had objected to the original proposed TAC of 130,000 mt that the revised TAC and emergency measures were adequate to preserve the Steller sea lion’s food supply. The history of the implementation of the fourth quarter fishing measures is not one of substantial public controversy. Nor is there any merit to the contention that an EIS must be prepared whenever qualified experts disagree, as Greenpeace contends. If this type of disagreement were all that was necessary to mandate an EIS, the environmental assessment process would be meaningless. An agency’s careful evaluation of the impact of its proposed action, its collection and review of evidence, and its reasoned conclusions as to what the date reveals would be for naught if by simply filing suit and supplying an affidavit by a hired expert, predicated upon the same facts relied upon by the agency but reaching a different conclusion, a litigant could create a controversy necessitating an EIS.
D
The district court concluded that whatever harmful impact pollock fishing might have had on the Steller’s food supply in the past, the risk of further harm had been adequately diminished by the emergency management measures. Greenpeace argues that the Service’s implementation of those measures does not relieve it of the obligation to prepare an EIS. It maintains that because the Service did not know whether these measures would be effective, implementing them could not absolve the Service of its obligation to prepare a statement. Greenpeace’s affiants question the effectiveness of these measures, and they contend that the Service has not presented any data or analyses to suggest that these measures will do any good.
The Service does concede that the effectiveness of the mitigation measures is uncertain, but contends that this uncertainty is largely because the cause of the Steller sea lion’s decline is itself uncertain. In any ease, “so long as significant measures are undertaken to ‘mitigate the project’s effects,’ they need not completely compensate for adverse environmental impacts.” Jantzen, 760 F.2d at 987 (internal citation omitted). The Stel-ler Sea Lion Recovery Team, which had objected to the originally proposed TAC, stated that “[g]iven the limitations of our current understanding of sea lion feeding and nutritional requirements [the mitigation measures] represent a reasonable approach to the regulation of the Gulf pollock fishery.”
Moreover, the suggestion that the Service based these measures on pure speculation is false. The spatial and temporal allocation of the 1991 fishery was premised on an evaluation of the past distribution of pollock fishing and rates of Steller sea lion decline. And the 10 nm no-trawl zone was based on studies of Steller sea lion foraging patterns. In Wild Sheep, we found the agency’s decision not to prepare an impact statement unreasonable despite its adoption of mitigation measures, because the efficacy of these measures had been attacked in numerous responses to an original draft of the environmental assessment. 681 F.2d at 1180. As already noted, the efficacy of the mitigation measures, while under attack now, was not attacked when they were disclosed to the public in the July emergency rule. Although the Service was uncertain about the potential efficacy of the measures, the measures were carefully considered, based on evidence from scientific studies, and appear reasonably designed to protect the Steller sea lion.
E
Finally, Greenpeace argues that even if the Service adequately studied the effects of its actions on the Steller sea lion, it failed to take a “hard look” at the impact of pollock fishing on harbor seals and other species in the Gulf of Alaska. This charge has some merit. The September environmental assessment states: “[The Service] is proceeding under the assumption that due to the similarity in timing and locations of harbor seal and Steller sea lion declines the declines of the two species may have the same causative agent.' Thus the discussion that follows may apply equally well to both species.” One of Greenpeace’s affiants, Anne Hoover-Miller, states that there is evidence suggesting that commercial fishing has caused a decline in the population of the harbor seal and that the Service’s report is entirely inadequate to evaluate the effects of its measures on that animal. Indeed, she suggests, the 10 nm no-trawl zone around the sea lion rookeries may divert pollock fishing towards the feeding areas of the harbor seals.
There is no doubt the Service’s analysis of the effects of pollock fishing on the harbor seal is far less rigorous than the study of its effects on the Steller sea lion. But it is equally clear that there is little data available to analyze these effects. Hoover-Miller’s affidavit discussing the effects is itself highly speculative, and in no way undermines the Service’s assumption that its conclusions about the Steller sea lion could be applied to the harbor seal. At the same time, the environmental assessment indicated that the Service had begun a comprehensive assessment of the harbor seals to determine the status of the population. Given the fact that the harbor seal was not a threatened or endangered species, the lack of available data on the harbor seal, and the apparent reasonableness of the Service’s assumption that its analyses of the Steller sea lion could be applied to the harbor seal, we cannot regard its failure to take a “harder look” at the effects of the action on the harbor seal to be arbitrary and capricious.
F
In conclusion, we disagree with Greenpeace that the Service’s “Finding of No Significant Impact” was based on speculation and not supported by adequate evidence. The Service took a careful look at the effects of the 1991 fishery on the Steller sea lion. Although Greenpeace has demonstrated that some scientists dispute the Service’s analyses and conclusions, such a showing is not a sufficient basis for us to conclude that the Service’s action was arbitrary or capricious. If it were, agencies could only act upon achieving a degree of certainty that is ultimately illusory.
IV
ESA VIOLATIONS
Section 7 of the Endangered Species Act imposes on an agency a duty to “insure” that any action it takes is “not likely to jeopardize the continued existence” of a threatened species. Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1459 (9th Cir.1984) (quoting 16 U.S.C. § 1536(a)(2)), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). An action would “jeopardize” a species if it “reasonably would be expected ... to reduce appreciably the likelihood of both the survival and recovery” of the species by reducing its reproduction, numbers or distribution. 50 C.F.R. § 402.02 (1991). In fulfilling its duty, the agency “shall use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). When an agency relies on the analysis and opinion of experts and employs the best evidence available, the fact that the evidence is “weak,” and thus not dispositive, does not render the agency’s determination “arbitrary and capricious.” Stop H-3, 740 F.2d at 1460; see also Pyramid Lake Paiute Tribe of Indians v. United States Dep’t of Navy, 898 F.2d 1410, 1415 (9th Cir.1990).
Pursuant to 16 U.S.C. § 1536(a)(2), the Service held consultations with the Secretary to assess the effect of the 1991 fishery on the Steller sea lion. These consultations led to the preparation of biological opinions concluding that the 1991 TAC, implemented under the emergency management measures, was not likely to jeopardize the continued existence of the Steller sea lion. We will not upset an agency’s assessment of its obligations under section 7 unless we determine it to be arbitrary and capricious. Paiute Tribe, 898 F.2d at 1414. We agree with the district court that the Secretary acted within his discretion in choosing the data on which to rely and adequately supported his conclusion that the management measures would mitigate any potential harm to the Steller sea lion caused by pollock fishing.
Greenpeace claims the district court erred in finding the Service’s determination reasonable because the Service admitted that pollock fishing may adversely affect the Steller sea lion, because the efficacy of the Service’s proposed protection measures was too speculative, and because the Service placed the burden of any uncertainty on the Steller sea lion. These three arguments boil down to one: The Service has recognized the possibility that the fishery could pose a threat to the Steller sea lion and has failed to offer evidence proving that the 1991 TAC, imple-merited under the proposed management measures, will not place the animal in jeopardy. Because it acted despite uncertainty about the effects of its actions, the Service violated its section 7 obligations. The Service argues that its “admissions” reflect nothing more than a recognition of the uncertainty in the scientific community about the causal relationship between pollock fishing and the decline of the Steller sea lion, and that this uncertainty does not make its “no jeopardy” determination arbitrary and capricious.
The Service has clearly satisfied its ‘procedural obligations under section 7. The Service’s “no jeopardy” determinations and proposals for the 1991 TAC and fishery management measures followed consultations with the Secretary, as required by section 7, in May, June, and September of 1991. At the close of the consultations, the Service prepared biological opinions, see 50 C.F.R. 402.-14(g) (1991), describing the consultations and setting forth its recommendations.
We hold that the Service has fulfilled its substantive duties as well. Despite Greenpeace’s assertions to the contrary, the Service supported its conclusions with ample data and analysis. The June biological opinion indicates that the Service, the Alaska Fisheries Science Center, and the National Marine Mammal Laboratory “analyzed all the available data on the pollock fishery and Steller sea lions” in the Gulf of Alaska. The Service also sought the recommendations of the Steller Sea Lion Recovery Team. The opinion demonstrates that the Service evaluated the spatial and temporal distribution of commercial fishing across the Gulf of Alaska. It then addressed not only the total biomass of pollock in the Gulf and the effects of fishery removals on that biomass, but also the spatial and temporal distribution of pollock across the Gulf. And despite Greenpeace’s claims to the contrary, the Service did not ignore hydroacoustic surveys of pollock biomass, but considered and compared them to bottom trawl surveys. Finally, while the Service has repeatedly conceded that it was uncertain about the effectiveness of its management measures, it premised these measures on a reasonable evaluation of available data, not on pure speculation.
The biological opinions indicate that the Service, an expert agency, consulted with other teams of experts to consider all relevant factors pertaining to the effects of the Gulf fishery on the Steller sea lion. And they indicate that the Service did not ignore data, as Greenpeace suggests. The Service’s decision to go ahead with the 1991 fishery under the proposed restrictions, despite some uncertainty about the effects of commercial pollock fishing on the Steller sea lion, was not a clear error of judgment. In Stop H-3 we reviewed a “no jeopardy” determination by the Federal Highway Administration pertaining to the impact of construction of Interstate H-3 in Hawaii on the Oahu Creeper. The Highway Administration consulted with the Fish and Wildlife Service to determine the effect of the highway on the Creeper. The Wildlife Service’s biological opinion stated:
“In essence, we have very little data for providing an opinion, but feel it would be unreasonable to request [an additional] study which would be unlikely to provide definitive results. We must, therefore, assume the Oahu Creeper would be like most species in that a highway would not split a population.
Based on the available information, which we grant is weak, it is our opinion the proposed project is not likely to jeopardize the continued existence of the Oahu Creeper.”
740 F.2d at 1458 (quoting biological opinion). Despite the uncertainty of the data, we held that the Highway Administration had complied with section 7 because it had based its decision on the best available scientific data and had grounded its decision in a consideration of the relevant factors. Id. at 1460. Applying this standard, the Service has undeniably fulfilled its duties under the ESA.
For the foregoing reasons, the decision of the district court is AFFIRMED.
. The term "fishery" refers to: "(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational and economic characteristics; and (B) any fishing for such stocks." 16 U.S.C. § 1802(8) (1988).
. Section 7(a)(2) requires that agencies, in consultation with the Secretary, "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. § 1536(a)(2) (1988).
. The opinion proposed allocating 100,000 mt of the TAC to the Westem/Central area of the Gulf, and 3,400 mt to the Eastern Area. It also proposed apportioning fishing in the Westem/Cen-tral area across four calendar quarters. 25,000 mt could be fished each quarter and carryover would be limited to 50 percent of the initial quarterly allowance. So, if less than 25,000 mt were fished in any quarter, no more than 12,500 mt of that could be made up in the next quarter.
. The NEPA requires agencies to "include in every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action." 42 U.S.C. § 4332(C). If a proposed action would normally require an environmental impact statement, an agency must prepare an environmental assessment to determine whether or not an environmental impact statement is necessary. 40 C.F.R. § 1501.4(a)-(c) (1991). If, based on the environmental assessment, the agency determines that the proposed action will not significantly affect the environment, it need not prepare an EIS and instead may issue a Finding of No Significant Impact (FONSI). 40 C.F.R. § 1508.13 (1991).
.In addition to allocating the harvest across the Western/Central and Eastern regions of the Gulf, the Secretary divided the Westem/Central region into two areas and allocated 50,000 mt to each area. 56 Fed.Reg. at 28,112, 28,114.
. Marsh appears to distinguish cases that turn on "the legal meaning of the term ‘significant’ or ... the predominantly legal question whether established and uncontested historical facts presented by the administrative record satisfy this standard.” 490 U.S. at 376, 109 S.Ct. at 1860. Accordingly, we express no opinion as to the standard by which to review such challenges.
. Of course, the agency actions challenged in these cases which were affirmed under the reasonableness standard would likewise have withstood scrutiny under the arbitrary and capricious standard mandated by Marsh.
. For purposes of our decision, we need not and do not decide whether a reasonableness standard still applies to threshold questions of NEPA applicability, such as the determination whether "major federal action” exists. See Goos v. ICC, 911 F.2d 1283, 1292 (8th Cir.1990); cf. Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 973 n. 4 (10th Cir.) (en banc) (expressly reserving the question), cert. denied, - U.S. -, 113 S.Ct. 59, 121 L.Ed.2d 27 (1992); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.) (Thomas, J.) (reviewing the alternatives selected for discussion in EIS under a reasonableness standard), cert. denied, -U.S.-, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991).
. Compare LaFlamme v. FERC, 852 F.2d 389, 399 (9th Cir.1988) (agency failed to prepare an environmental assessment, in violation of the NEPA, and based its decision on staff reports filed after license for challenged action was granted); Save the Yaak Comm. v. Block, 840 F.2d 714, 717-718 (9th Cir.1988) (environmental assessment "not prepared to examine the environmental impacts, but to 'evaluate various techniques of maintaining [] road’ " did not satisfy threshold requirements of 40 C.F.R. § 1508.9); Jones v. Gordon, 792 F.2d 821, 827-28 (9th Cir.1986) (agency maintaining its action fell within categorical exclusion for issuance of permits for scientific research prepared no environmental assessment, only a four sentence statement relying on fact that prior permits had been issued without an EIS); Steamboaters v. FERC, 759 F.2d 1382, 1392 (9th Cir.1985) (agency failed to prepare an environmental assessment).
. Wild Sheep was also decided under a reasonableness standard of review, and the court scrutinized the Forest Service's action with less deference than we must accord the Service's decision in the wake of Marsh.
. Greenpeacé argues that the very existence of uncertainty mandates the preparation of an impact statement and it cites to several cases holding that an impact statement must indicate whether there is uncertainty over the environmental effects of a proposed action. See Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1479 (9th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 446, 83 L.Ed.2d 372 (1984); Friends of the Earth v. Hall, 693 F.Supp. 904, 926 (W.D.Wash.1988). Because these cases deal not with whether an impact statement should be prepared, but with what information must be included in an impact statement after it has been judged necessary, they do not stand for the proposition that the existence of uncertainty mandates the preparation of an impact statement.
. Sierra Club v. U.S. Forest Service, 843 F.2d 1190 (9th Cir.1988), is not to the contrary. Except in certain circumstances, judicial review should be limited to the administrative record already in existence, rather than the new record made initially in the district court. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). We consider the affidavits to determine whether the Service considered all relevant factors in reaching its conclusion of no significant impact, and find that it did — although it did not reach the conclusion Greenpeace would have liked. See ante at 1334. In Sierra Club, the affidavits and trial testimony demonstrated that the agency had failed to consider all relevant factors and that there was a public controversy.
.Greenpeace sued for injunctive relief immediately following adoption of the TAC and the mitigation measures, rather than participating in further notice and comment procedures. We note that the Service limited opportunity for public input before recommending the emergency measures it adopted because of "the economic hardship to the fishing industry, and the need to implement emergency measures to protect Stel-ler sea lions simultaneously with the pollack fishery opening." 56 Fed.Reg. 28114. We express no opinion as to the propriety of Greenpeace’s choice to sue instead of submitting comments on the TAC and mitigation measures implemented in June, which could continue in effect for only three months and thus were amenable to modification. Nevertheless, we cannot characterize the agency’s action as "arbitrary” for failing to consider views that were never presented to it. Nor can we consider its failure to provide for earlier public comment arbitrary under these circumstances.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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WILSON, Circuit Judge:
This appeal concerns the actions and decisions of the Federal Highway Administration (“FHWA”) and the Secretary of the Florida Department of Transportation (“FDOT”) during the planning and development of the Indian Street Bridge Project in Martin County, Florida. Appellants Odias Smith, Katie Smith, and Citizens for Smart Growth (collectively, “Citizens”) brought suit under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, alleging that FHWA and FDOT violated both the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-1347, and Section 4(f) of the Department of Transportation Act (“Section 4(f)”), 49 U.S.C. § 303, during development of the project. Citizens also requested an injunction to stop construction of the bridge. The district court granted summary judgment in favor of FHWA and FDOT and denied the injunction. After review of the extensive 10,000-page administrative record in this case, we affirm the district court.
I. Background
In 1998, FDOT began the planning and decision process that led up to the construction of the Indian Street Bridge in Martin County. Responding to Martin County’s desire for an additional crossing of the St. Lucie River for traffic relief and evacuation purposes, FDOT began investigating possible improvements to the State Road 714 corridor. FDOT presented the findings of this investigation in the Feasibility Study Report (“Feasibility Study”) of 1998. The Feasibility Study considered one corridor — the existing four-lane Palm City Bridge on State Road 714 — and evaluated three alternatives within this corridor: a No-Build Alternative, a Six-Lane Alternative, and an Eight-Lane Alternative. The study concluded that widening the bridge would require taking Section 4(f) properties, possibly exceed noise máximums, potentially negatively impact the environment, and possibly affect Superfund sites along the corridor. Additionally, only the Eight-Lane option provided the level of service required in design year 2026, but this option was barred by FDOT policy regarding lane máximums on state highways. The Feasibility Study concluded that the No-Build Alternative was the “best” alternative of those examined but recommended that other alternatives (including an additional bridge crossing) be considered to address the traffic concerns.
FDOT then prepared the New Bridge Crossing Alternative Corridor Report (“Corridor Report”), released in March 2001. The Corridor Report examined seven potential corridors for a river crossing and one tunnel alternative and evaluated each option on the basis of cost, traffic service levels, engineering factors, environmental impacts (noise, air quality, wetlands impact, endangered species impact, and potential contamination), and socioeconomic factors (public opinion, Section 4(f) impacts, future development, sustainability, and community cohesion). As part of this analysis, the Corridor Report also took into account that the Martin County Metropolitan Planning Organization had unanimously endorsed the Indian Street Corridor and voted to prohibit widening State Road 714. The Corridor Report concluded that Corridor Three, the Indian Street Crossing, was the best alternative because it had scored highest on the evaluation matrix.
Following the completion of the Corridor Report, the FHWA prepared a Draft Environmental Impact Statement (“EIS”) as required by NEPA; distributed it to federal, state, and local agencies for notice and comment; and published it in the Federal Register. Citizens submitted an alternative (“Citizens’s Alternative”) during this comment period, proposing a combination of traffic management mechanisms and road improvements rather than construction of a new bridge. Appellees analyzed Citizens’s Alternative, but they ultimately rejected it because it did not provide another corridor across the river — desirable for emergencies and evacuations — or reduce traffic to the extent desired. On July 6, 2006, FHWA issued the Final EIS (“FEIS”), which incorporated by reference the findings of the Feasibility Study and the Corridor Report. On October 19, 2006, FHWA signed a Record of Decision (“ROD”), responding to the comments to the FEIS and approving the project. The Feasibility Study, Corridor Report, FEIS, and ROD were made available to the public.
Citizens filed suit on April 20, 2007, alleging that Appellees violated NEPA and Section 4(f) in their development of the Indian Street Bridge Project. On October 1, 2009, Citizens’s motion for a preliminary injunction was denied. Both parties moved for summary judgment, and on April 30, 2010, the district court granted summary judgment in favor of FHWA and FDOT and denied the motion for an injunction. All other pending motions were dismissed. The project received funding from the American Reinvestment and Recovery Act on February 9, 2010, and construction of the bridge is now underway.
II. Jurisdiction
This suit was brought under the Administrative Procedure Act (“APA”), which provides for judicial review of federal agency actions and allows federal courts to enjoin authorities of the United States government. See 5 U.S.C. §§ 701, 702. Citizens seeks only injunctive relief against the Secretary of FDOT. The Secretary argues that this court lacks jurisdiction to enjoin a state official in an action based on the APA because FDOT is not a federal agency.
Our jurisdiction over a state official in an action like this one is a complex legal question and presents an issue of first impression in this circuit. Other circuits that have addressed this question have focused on whether a highway project constitutes a major federal action or whether the state and federal projects are sufficiently interrelated. Sw. Williamson Cnty. Cmty. Ass’n, Inc. v. Slater, 243 F.3d 270, 277 (6th Cir.2001) (“If we conclude that the highway corridor constitutes a ‘major federal action,’ then we have the authority to instruct the district court to enjoin the state from further construction on the highway.”); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397 (9th Cir. 1992) (“Nonfederal defendants may be enjoined if federal and state projects are sufficiently interrelated to constitute a single federal action for NEPA purposes.” (quotation marks omitted)).
While we agree with the Secretary of FDOT that the APA does not apply to state agencies, we decide that jurisdiction over the Secretary may be exercised in the circumstances of this case. The Secretary admits that “FDOT’s substantial role is well documented in the Administrative Record.” And, the Secretary calls FDOT a “party working in tandem with federal agencies.” Given these circumstances, and the fact that the plaintiffs have only sought injunctive relief against the Secretary, we find the district court properly exercised its jurisdiction over the Secretary in this case.
III. Standard of Review
We review a grant of summary judgment de novo and apply the same legal standards as the district court. See Wilderness Watch & Pub. Emps. for Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1087-88 (11th Cir.2004). When confronted with claims brought under the APA, we may only set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard is “exceedingly deferential.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir .2008).
To determine whether an agency decision was arbitrary and capricious, the reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. This inquiry must be searching and careful, but the ultimate standard of review is a narrow one. Along the standard of review continuum, the arbitrary and capricious standard gives an appellate court the least latitude in finding grounds for reversal; administrative decisions should be set aside in this context only for substantial procedural or substantive reasons as mandated by statute, not simply because the court is unhappy with the result reached.
Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541-12 (11th Cir.1996) (quotation marks and ellipses omitted).
IV. NEPA
The National Environmental Policy Act sets forth review procedures that federal agencies must engage in before taking any “major” actions. 42 U.S.C. § 4332. Section 102(2)(C) of NEPA requires that to evaluate the proposed action an agency must prepare an EIS that includes “a detailed statement of (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 708 (11th Cir.1985) (citing 42 U.S.C. § 4332(2)(C)). The requirements of NEPA are purely procedural and do not mandate any specific outcome; agencies may make a decision that preferences other factors over environmental concerns as long as they have first adequately identified and analyzed the environmental impacts. Van Antwerp, 526 F.3d at 1361. A court reviewing NEPA compliance may only ask whether the agency took a “hard look” at environmental consequences. Druid Hills, 772 F.2d at 709. A challenging party has the burden of showing by a preponderance of the evidence that the agency did not comply with NEPA’s procedures. Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir.1974).
A. Incorporation of Local Planning Documents
Citizens argues that it was improper of FHWA to rely upon FDOT’s Feasibility Study and Corridor Report when preparing the FEIS. However, circuit precedent holds that incorporation of local planning documents is permissible and that references to such documents can satisfy the requirements of NEPA. See Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 438 (5th Cir.1981) (“The reference to the [regional planning document] contained in the ... EISs was sufficient to satisfy the procedural and substantive requirements of NEPA.”). Furthermore, the Council on Environmental Quality Guidelines instruct that “[a]gencies shall incorporate material into an environmental impact statement by reference,” 40 C.F.R. § 1502.21 (emphasis added), and encourage joint federal and local action, see 40 C.F.R. § 1502.5(b).
Citizens also contends that use of the local planning documents was impermissible because FHWA failed to participate in the preparation of the documents. In support of its position, Citizens points to 23 C.F.R. § 771.109(c)(5), which states that a local agency “may prepare the EIS and other environmental review documents with the Administration furnishing guidance, participating in the preparation, and independently evaluating the document.” However, the Feasibility Study and the Corridor Report are not NEPA environmental review documents; they are support documents that were referenced in an environmental review document: the FEIS. See 28 C.F.R. § 771.111(a)(2). “Publicly available documents ... produced by, or in support of, the transportation planning process ... may be incorporated directly or by reference into subsequent NEPA documents” and require review by the FHWA only “as appropriate.” 23 § C.F.R. 450.212(b). We find no error in FHWA’s incorporation of the local planning documents in the FEIS.
B. Purpose and Need Statement
Citizens contends that FHWA adopted an impermissibly narrow Purpose and Need Statement that foreclosed consideration of a sufficiently wide array of alternatives. NEPA’s only requirement regarding the Purpose and Need Statement is that it “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” 40 C.F.R. § 1502.13. “[A]gencies must look hard at the factors relevant to the definition of purpose” and “should take into account the needs and goals of the parties involved in the application.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991). “[A]n agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency’s power would accomplish the goals of the agency’s action, and the EIS would become a foreordained formality.” Id. “Nor may an agency frame its goals in terms so unreasonably broad that an infinite number of alternatives would accomplish those goals and the project would collapse under the weight of the possibilities.” Id.
The FEIS stated that the purpose of the study was “to evaluate and comprehensively examine various alternatives for an additional crossing of the South Fork of the [St. Lucie] River in Martin County, Florida.” It also explained that an additional crossing was desired to accommodate infrastructure needs, satisfy transportation demands, and facilitate emergency response and evacuation. Although Citizens objects to FHWA’s limitation of the scope of the statement to cover only a Southern crossing of the river, we find FHWA’s rationale — that an existing bridge across the river serves mainly the central and northern parts of the county — to be reasonable. In sum, we find FHWA’s consideration of the relevant factors to be sufficient and the Purpose and Need Statement to be not unduly narrow.
C. Review of Environmental Impacts
Citizens alleges the following deficiencies in the FEIS: inadequate review of alternatives, failure to take a “hard look” at direct effects, and insufficient consideration of cumulative and indirect impacts.
First, Citizens asserts that Appellees failed to complete a detailed analysis of all alternatives because it relied upon conclusions of local planning documents to reject some alternatives prior to the preparation of the FEIS. As explained above, the reliance on local planning documents was appropriate. Regarding Citizens’s contention that too few alternatives were considered in the FEIS, NEPA’s requirement that alternatives be considered is “bounded by some notion of feasibility.” Druid Hills, 772 F.2d at 713 (citation and quotation marks omitted). Agencies only have to consider “reasonable alternatives,” and we evaluate their choices against a “rule of reason.” Id. NEPA does not impose any minimum number of alternatives that must be evaluated. See N. Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1541-43 (11th Cir.1990) (finding that an EIS with only two alternatives studied in detail was sufficient); Tongass Conser vation Soc’y v. Cheney, 924 F.2d 1137, 1140-42 (D.C.Cir.1991) (finding that agency complied with NEPA when thirteen of fourteen alternatives were eliminated as unreasonable and only one alternative was discussed in detail in the EIS). Here, Appellees considered three alternatives in the FEIS — the Indian Street Bridge Alternative, the No-Build Alternative, and the Traffic System Management Alternative — and also analyzed Citizens’s Alternative in depth. Reviewing Appellees’ choice and analysis of alternatives presented in the EIS under a rule of reason, we find Appellees’ consideration of alternatives to be “sufficient to permit a reasoned choice.” N. Buckhead Civic Ass’n, 903 F.2d at 1541.
When alternatives are rejected from consideration in an EIS, there is no duty to perform in-depth analyses of these alternatives. 40 C.F.R. § 1502.14(a) (stating that agencies shall “[rjigorously explore and objectively evaluate all reasonable alternatives,” but when alternatives have been rejected from consideration, agencies need only “briefly discuss the reasons for their having been eliminated” (emphasis added)). Because Appellees’ choice to exclude the alternatives that it did was appropriate, Appellees had no duty to conduct an in-depth analysis of those rejected alternatives in the FEIS. Appellees, by discussing in the FEIS their analysis of the expected environmental effects of the corridors and the relative impact of the various alternatives on cost, traffic service, engineering, environmental, and socio-economic factors, more than fulfilled NEPA’s requirement to “briefly discuss” the rejected alternatives.
Second, Citizens alleges that Appellees failed to take a “hard look” at the direct environmental effects of the proposed action, as required by 40 C.F.R. § 1502.16(a). Citizens argues that one arbitrary and capricious act of Appellees regarding their study of direct impacts was the choice to continue with environmental studies after the EIS was completed. In making this argument, Citizens urges us to conclude from the fact that studies are ongoing that they could not have been developed to an appropriate extent when the EIS was created. However, a commitment to ongoing studies alone is not necessarily indicative of an insufficient EIS. See City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1167 (9th Cir.1997) (finding that an agency with only a “conceptual” mitigation plan that intended to continue compliance efforts had satisfied Executive Order 11990 because it had complied “to date”). Because we do not find the scheduling choice alone to be arbitrary or capricious, we turn to examine the alleged substantive deficiencies of the EIS.
Citizens points to specific studies to illustrate its claim that Appellees failed to adequately evaluate direct environmental impacts of the proposed action. Under the Magnuson-Stevens Fishery Conservation and Management Act of 1996 (“MSFCMA”), 16 U.S.C. §§ 1801-1883, federal agencies are required to prepare an Essential Fish Habitat Assessment and consult with the National Marine Fisheries Service prior to taking an action that would adversely impact an essential fish habitat, 50 C.F.R. § 600.920. Appellees did so, but Citizens alleges that the study area selected to review cumulative effects — the drainage basin of the South Fork of the St. Lucie River — was too narrow, and thus the assessment was insufficient. Appellees respond that the basin area selected for review of cumulative impacts was the only basin into which another bridge also drained, and thus the only area where cumulative impacts could potentially occur. This rationale is hardly indicative of arbitrary and capricious decision making.
Citizens also asserts that Appellees did not comply with Executive Orders 11988 and 11990 because Appellees’ analyses lacked detail and were overly conclusory.
Executive Order 11988, entitled “Floodplain Management,” requires federal agencies taking action in or affecting a floodplain to think twice. The agency must consider the project’s effects on the floodplains and possible alternatives, and may proceed only if it finds that the only practicable alternative requires sitting in the floodplain. In designing its plan the agency must take steps to minimize potential damage to the floodplain.
City of Carmel-by-the-Sea, 123 F.3d at 1166 (quotation marks and footnote omitted). Executive Order 11990, entitled “Protection of Wetlands,” provides “similar protection” regarding wetlands. Sierra Club v. Hassell, 636 F.2d 1095, 1100 (5th Cir.1981). Section Four of the FEIS contains a detailed discussion of floodplains and wetlands. Both the floodplains and wetlands subparts of Section Four discuss harm-minimization plans. The floodplains subpart concludes that because the area along the river is prone to flooding, there is no practicable alternative to locating the bridge in a floodplain. The wetlands subsection explains that due to the nature of bridge construction and the terrain around the St. Lucie River, there are no practicable alternatives to impacting wetlands. Overall, we find this analysis, as well as the discussions of other direct impacts, satisfactorily thorough and neither arbitrary nor capricious.
Third, Citizens contends that Appellees’ review of cumulative and indirect impacts was insufficient. Indirect impacts are reasonably foreseeable long-term effects of the proposed action. 40 C.F.R. § 1508.8(b). “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” Id. § 1508.7 (quotation marks omitted). Appellees discuss both types of impacts in the subsection of the FEIS entitled “Indirect and Cumulative Impacts.” That subsection discusses the cumulative impacts on current and existing growth, emergency response and evacuation, wildlife, essential fish habitats, and water quality, as well as proposed transportation projects. The FEIS also noted that no other major construction projects pending in the area had obtained permit applications. The FEIS discussion of these matters, therefore, was sufficient.
Citizens alleges that Appellees’ indirect impacts assessment is faulty because it fails to consider the change that would result from the project’s stimulation of commercial interests in a previously residential area. However, in their review of indirect impacts of the project, Appellees found that other commercial uses in the study area were already being planned or developed. Therefore, Appellees concluded that any induced commercial growth would not constitute a change to the area. Citizens also objects to the area selected for the study of induced growth but fails to explain why Appellees’ choice was erroneous. Determining the geographic extent of an analysis area is the kind of task “assigned to the special competency of the appropriate agencies,” and such a determination can only be overturned by a showing of arbitrariness or capriciousness in the decision making. See Kleppe v. Sierra Club, 427 U.S. 390, 414, 96 S.Ct. 2718, 2732, 49 L.Ed.2d 576 (1976). Furthermore, the FEIS recognized that commercial uses were in development or in the planning stages for development along the project’s corridor. Appellants cannot demand a more detailed response to their challenge without identifying precise geographic areas or instances of induced growth, considering that the project is already underway. Here, the FEIS’s finding that no land use change is expected to occur adequately addresses Appellants’ concerns.
In their study of cumulative effects, Appellees found that because no other construction projects were listed on the Martin County Five-Year Capital Improvements Plan as pending in the project area, no cumulative impacts could be expected. Citizens argues that referencing to the Five-Year Plan was an error and that Appellees should have consulted the Martin County Long-Range Plan instead. However, Appellees determined that because the projects on the Long-Range Plan were listed far before their actual development, any analysis of the cumulative impacts of the Long-Range Plan projects would be mostly speculative. We have held that agencies cannot be “forced to analyze the environmental impact of a project, the parameters and specifics of which would be a mere guess.” City of Oxford v. FAA, 428 F.3d 1346, 1356 (11th Cir.2005).
Ultimately, Citizens argues that Appellees should have used different and better methodologies for reviewing environmental impacts of the project. However, we do not review an agency’s compliance with NEPA by asking whether it made the optimal choices; NEPA does not require perfection. See Druid Hills, 772 F.2d at 708-09. Appellees’ compliance with NEPA may not have been perfect, but it was sufficient.
D. Need for a Supplemental Environmental Impact Statement
The Indian Street Bridge has four phases that were originally planned to be completed contemporaneously, but FDOT announced on May 1, 2009 that one phase will commence prior to the others. Citizens now attempts to argue that Appellees erred by not completing a Supplemental Environmental Impact Statement (“SEIS”) investigating the impacts of phasing. However, Citizens did not raise this issue in its Amended Complaint. Instead, Citizens alleged in its Amended Complaint that an SEIS was necessary because Citizens had submitted its Alternative, which included information and proposals about traffic modeling systems. Citizens’s argument on appeal — that the decision to utilize phasing must be examined further in an SEIS — is substantially different than that alleged in its Complaint, and we will not consider a claim not detailed in the plaintiffs pleadings. See Maniccia v. Brown, 171 F.3d 1364, 1367 n. 1 (11th Cir.1999).
V. Section 4(f)
Section 4(f) of the Transportation Act allows the Secretary of Transportation to approve a federal highway project using the land of a public park, recreation area, wildlife refuge, or historic site only if “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c).
Section 4(f)(1) requires that the Secretary must make a finding that no feasible or prudent alternatives to the use of Section 4(f) lands exist. “An alternative is feasible if it can be built as a matter of sound engineering.” Druid Hills, 772 F.2d at 715. An alternative is prudent unless there are “truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes” or the alternative routes present “unique problems.” Id. (alteration omitted). When evaluating alternatives during a Section 4(f)(1) review, the Secretary need not consider options that impact Section 4(f) lands because “[a]n alternate route that also impacts upon parks and historic sites is not an alternative to the use of such property.” Id. (quotation marks omitted).
If the Secretary determines that there are no feasible or prudent alternatives to using Section 4(f) property for the project, the Secretary must then comply with the mandate of Section 4(f)(2) to minimize harm to parks and historic sites. This requires “a simple balancing process which totals the harm caused by each alternate route to section 4(f) areas and selects the option which does the least harm.” Id. at 716. Unlike 4(f)(1), the 4(f)(2) analysis requires the Secretary to consider alternatives that would use 4(f) lands. See id.
We use a three-part test to review the Secretary’s compliance with Section 4(f). First, we ask whether the Secretary acted within the scope of his authority: did he construe his authority to approve projects to be limited to situations where no feasible and prudent alternatives to the use of 4(f) property existed, and could he have reasonably believed that no such alternatives existed? Druid Hills, 772 F.2d at 714. Second, we inquire whether the Secretary’s ultimate decision was arbitrary, capricious, or an abuse of discretion. Id. Third, we ask if the Secretary followed the necessary procedural requirements. Id. “[T]he Secretary’s decision is entitled to a presumption of regularity,” but “that presumption does not shield his action from a thorough, probing, in-depth review.” Id. (quotation marks and citation omitted). Our review of the Secretary’s actions focuses on the administrative record, not the district court’s opinion. Id.
Citizens argues that the brevity of the statements in the FEIS regarding Section 4(f) compliance reveals that the Secretary had no reasonable basis to believe that no prudent alternatives to the project exist. Citizens cites to Stop H-3 Ass’n v. Coleman, 533 F.2d 434, 445 (9th Cir.1976), for the proposition that conclusory or unsupported statements do not satisfy the Secretary’s 4(f) burden. However, in Stop H-3, the Secretary’s position was that Section 4(f) “was altogether inapplicable,” and the court found that “[i]n the light of that consistently recorded position, it is not possible, with factual accuracy, to conclude that the Secretary evaluated [the proposed highway] with the explicit directives of 4(f) firmly in mind.” 533 F.2d at 445. The factual situation here is radically different: the FEIS itself contains a lengthy discussion of 4(f) impacts and also references the Corridor Report, which provides even more analysis of the alternatives’ effects on 4(f) lands. Unlike in Stop H-3 where the court found that the Secretary could not have evaluated the project with the directives of Section 4(f) in mind, the thorough discussion of Section 4(f) impacts indicates a mindfulness of Section 4(f) not present in Stop H-3. Because the analysis in the instant case does in fact demonstrate consideration that each of the alternatives was not feasible and prudent within the context of Section 4(f), the facts do not support Citizens’s arguments that the Secretary’s review was cursory.
Citizens also contends that the reasons for rejecting alternatives as imprudent were insufficient because the Secretary failed to point to extraordinary or unique circumstances, as mandated by Cit-
izens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971). We disagree. Some of the corridor alternatives did not avoid the use of 4(f) lands, so they did not need to be considered during the Section 4(f)(1) inquiry. See Druid Hills, 772 F.2d at 715. Some of the alternatives were rejected because they did not fulfill the purpose and need of the project. This circuit has long maintained that failure to meet a project’s purpose can render an alternative imprudent. See Druid Hills, 772 F.2d at 715-16. The remainder of the alternatives were rejected due to extraordinarily high costs, unacceptable or severe environmental impacts, or both, which are sufficient foundations for finding that the alternatives were imprudent. See 23 C.F.R. § 774.17 (stating that an alternative is not prudent if: it “compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need”; causes severe “social, economic, or environmental impacts,” “disruption to established communities,” or “impacts to environmental resources protected under other Federal statutes”; “results in additional construction, maintenance, or operational costs of an extraordinary magnitude”; or “involves multiple factors in ... this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude”). FHWA’s explanations are sufficient and will not be found lacking simply because they did not include the terms “extraordinary” or “unique.” See Comm. to Pres. Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1550-51 (10th Cir.1993) (explaining that the “mechanical use” of magic words “is unrelated to the [4(f)] documents’ substantive merit”); Hickory Neighborhood Def. League v. Skinner, 910 F.2d 159, 162-63 (4th Cir.1990) (holding that it was unnecessary for the Secretary to use the terms “unique” and “extraordinary” in the § 4(f) analysis). Furthermore, “an administrative decision ‘of less than ideal clarity’ will be upheld ‘if the agency’s path may reasonably be discerned.’ ” La. Envtl. Soc., Inc. v. Dole, 707 F.2d 116, 123 (5th Cir.1983) (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)). Based on the record, we do not find that the Secretary acted arbitrarily or capriciously in making his determination that the alternatives rejected were imprudent, and we find sufficient evidence that the Secretary could have reasonably believed that there were no feasible or prudent alternatives.
Finally, Citizens argues that FHWA failed to comply with the procedural requirements of Section 4(f). Because Citizens did not raise this issue below, we cannot consider it now. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004) (“This Court has repeatedly held that an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.” (citations omitted)).
The district court’s denial of injunctive relief and grant of summary judgment in favor of FHWA and FDOT is
AFFIRMED.
. We question whether it would even be necessary for the Secretary to be a party to this case in order for an injunction to bind the Secretary. See Fed.R.Civ.P. 65(d)(2)(A), (C) (stating that an order granting an injunction binds the parties and "other persons who are in active concert or participation” with the parties provided they have actual notice).
. In Piedmont Heights, the court explained that because the regional planning documents "were readily available to the public,” the agency was "not required to reiterate facts and figures” already made public. 637 F.2d at 438. Following this reasoning, because Appellees made the Feasibility Study and Corridor Report available to the public, they were able to satisfy their NEPA obligations by incorporating those documents by reference rather than republishing the already-public information.
. Citizens also argues that Appellees violated the requirement that the "draft EIS shall also summarize the studies, reviews, consultations, and coordination required by environmental laws or Executive Orders to the extent appropriate at this stage in the environmental process.” 23 C.F.R. § 771.123(c). Citizens's argument glosses over the "to the extent appropriate” caveat of that regulation and fails to acknowledge the instructions of 23 C.F.R. § 771.133: "If full compliance [with other environmental regulations] is not possible by the time the final EIS ... is prepared, the final EIS ... should reflect consultation with the appropriate agencies and provide reasonable assurance that the requirements will be met.” A commitment to continue with ongoing environmental reviews would embody exactly this kind of assurance.
. Citizens also contends that Appellees acted in error by failing to consider alternatives to the action, but an analysis of alternatives is not mandatory under the Act. See 50 C.F.R. § 600.920(e)(3) (listing mandatory contents of assessment); 50 C.F.R. § 600.920(e)(4) (listing additional information — including an analysis of alternatives — to be included "[i]f appropriate”).
. See 23 U.S.C. § 135(f) (“Each State shall develop a long-range statewide transportation plan, with a minimum 20-year forecast period ....”) (emphasis added).
. A SEIS is required when the agency “makes substantial changes in the proposed action that are relevant to environmental concerns; or [tjhere are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1).
. Citizens filed a motion to amend its Complaint to include the argument it now raises; Appellees opposed the motion as untimely. The district court denied the motion as moot when it entered its May 3, 2010 summary judgment order.
. Citizens challenges the sufficiency of Appellees’ Section 4© analyses (in the administrative record), upon which the Secretary based his Section 4(f) determinations. Therefore, our discussion of Section 4(f) compliance in this case centers on whether Appellees' Section 4(f) analyses and determinations were adequate.
. FHWA’s March 2005 Section 4(f) Policy Paper, in effect at the time the Indian Street Bridge Project was approved, was codified in substantially similar form at 23 C.F.R. § 774.17.
. Citizens additionally asserts that the Secretary should have considered a broader range of environmental factors and completed more detailed studies when making his prudence determinations. We find the large number of factors considered to be sufficient to make a reasoned decision. Although it may be true that a wider review would be optimal, this does not amount to a reason to overturn a satisfactory 4(f) determination.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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BREITENSTEIN, Circuit Judge.
Seventeen members of the Navajo Tribe of Indians seek to enjoin the performance of an agreement whereby the Navajo Tribe granted to intervenor Exxon Corporation the right to explore for, and mine, uranium on tribal lands. Defendant Secretary of the Interior approved the agreement. Plaintiffs base their claim on the asserted inadequacy of the Environmental Impact Statement, EIS, required by the National Environmental Policy Act, NEPA, 42 U.S.C. § 4321 et seq. They appeal from the denial of a preliminary injunction and the later dismissal of the action for nonjoinder of an indispensable party, the Navajo Tribe. We affirm the denial of the preliminary injunction and reverse the dismissal of the action.
In January, 1974, the Navajo Tribal Council, upon the unanimous recommendation of its Advisory Council, approved the agreement by a vote of 46-2. Section 396a, 25 U.S.C., requires that the Secretary approve leases for mining on unallotted lands within an Indian reservation. Section 415, 25 U.S.C., imposes a similar requirement on leases for the development of natural resources.
An EIS is required when major federal action significantly affects the human environment, 42 U.S.C. § 4332(2)(C). The requirement applies to leases of Indian lands. Davis v. Morton, 10 Cir., 469 F.2d 593, 597-598. The Bureau of Indian Affairs, BIA, prepared an EIS pertaining to the agreement in question and the Secretary considered it in making his decision to approve the agreement.
Appellees argue that we should not reach the EIS issue because the action may not be sustained in the absence of the Tribe. Neither the United States, which holds the tribal lands in trust for the Indians, nor the Navajo Tribe, may be sued without its consent. Cherokee Nation v. State of Oklahoma, 10 Cir., 461 F.2d 674, 681, cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 489; see also McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 168-169, 93 S.Ct. 1257, 36 L.Ed.2d 129. Because of its immunity from suit the Navajo Tribe may not be made an involuntary party to the action. We must consider the indispensability question because of its importance to the power of the court to proceed with the action.
Rule 19, F.R.Civ.P., covers joinder of parties. Under Subsection (a) a court must first determine whether an absent party has sufficient interest in the action to make it a necessary party within stated criteria. The financial and other benefits to the Tribe under the Exxon agreement give the Tribe sufficient interest to satisfy the requirements of Subsection (a)(2)(i). Plaintiffs say that those requirements are not determinative because the Secretary adequately represents the Tribe. Plaintiffs rely primarily on Heckman v. United States, 224 U.S. 413, 444-445, 32 S.Ct. 424, 56 L.Ed. 820. The Supreme Court there held that Indian grantees of land were not indispensable parties in a suit by the United States to cancel conveyances. The Court said that the Indians were adequately represented by their guardian, the United States.
In the instant case the duties and responsibilities of the Secretary may conflict with the interests of the Tribe. The Secretary must act in accord with the obligations imposed by NEPA. In acting upon the Navajo-Exxon agreement the Secretary, to further the national objectives declared by NEPA, must have and consider an EIS. The national interest is not necessarily coincidental with the interest of the Tribe in the benefits which the Exxon agreement provides. When there is a conflict between the interest of the United States and the interest of Indians, representation of the Indians by the United States is not adequate. See State of New Mexico v. Aamodt, 10 Cir., 537 F.2d 1102, 1106, cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572.
A finding that the Tribe is a necessary party under Rule 19(a) does not complete the inquiry. When it is determined that a party is necessary, a decision must then be made whether he is an indispensable party whose absence requires the dismissal of the suit under Rule 19(b). See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 108-109, 88 S.Ct. 733, 19 L.Ed.2d 936. The Rule 19(b) test is “whether in equity and good conscience the action should proceed.” See Wright v. First National Bank of Altus, Oklahoma, 10 Cir., 483 F.2d 73, 75.
In their assertion of indispensability, the appellees rely on Tewa Tesuque v. Morton, 10 Cir., 498 F.2d 240, cert. denied, 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440. In that case Indian plaintiffs sought the cancellation of a lease by the Tribe to a development company. An earlier case, Davis v. Morton, 10 Cir., 469 F.2d 593, related to the same lease. In Davis non-Indians attacked the lease because of the failure of federal officials to obtain the impact statement required by NEPA. We held that leases of Indian lands were covered by NEPA. Davis did not present or discuss indispensability of the Tribe.
From the facts stated in the Tewa Te-suque opinion it appears that the plaintiffs sought the cancellation of the lease because of the lack of an environmental impact statement. The court said, 498 F.2d at 243, that the failure to file an impact statement was rendered moot by Davis and went on to affirm the trial court's dismissal of the action on the ground that the Tribe was an indispensable party. In so holding the court discussed, 498 F.2d at 242-243, the four factors mentioned in Rule 19(b) and rejected each as a ground for permitting the action to proceed in the absence of the Tribe.
In Tewa Tesuque the attack was on the lease and the action sought cancellation. In the instant case the attack is on the adequacy of the impact statement which the Secretary must consider before approving or rejecting the Navajo-Exxon agreement. The plaintiffs seek relief from the consequences of action based on the inadequate EIS. A holding that the EIS is inadequate does not necessarily result in prejudice to the Tribe. The only result will be a new EIS for consideration by the Secretary. The requested relief does not call for any action by or against the Tribe. Our attention is called to no tribal remedies or procedures available to the plaintiff for attack on a federal EIS.
Dismissal of the action for nonjoinder of the Tribe would produce an anomalous result. No one, except the Tribe, could seek review of an environmental impact statement covering significant federal action relating to leases or agreements for development of natural resources on Indian lands. NEPA is concerned with national environmental interests. Tribal interests may not coincide with national interests. We find nothing in NEPA which excepts Indian lands from national environmental policy.
The controlling test of Rule 19(b) is whether in equity and good conscience the case can proceed in the absence of the Tribe. The test should be applied by the district court which should state the facts and reasons upon which it acts. See Wright v. First National Bank of Altus, Oklahoma, 10 Cir., 483 F.2d 73, 75. We are considering the case at the appellate level and are asked to review the order of the district court which held the EIS adequate and denied a preliminary injunction. In equity and good conscience the case should and can proceed without the presence of the Tribe as a party.
Consideration, of the adequacy of the EIS requires that we first examine the Navajo-Exxon agreement. The objective of the agreement is to explore for, discover, mine and process uranium deposits which may exist on 400,000 acres of tribal land in northwestern New Mexico. The project has two phases, (1) exploration, and (2) mining and milling. Plans for the first year’s exploration must be coordinated with the Tribe, submitted to and approved by the BIA and by the Secretary of the Interior acting through the United States Geological Survey (USGS). The submission is required both by the prospecting permit and the Secretary’s regulations. See 25 C.F.R. § 177.6 and 30 C.F.R. § 231.10(a) and (b). The plan must be responsive to the protection of nonmineral resources and surface reclamation as specified in the Permit, § 111(12), pp. 14-15. No operations may be conducted except under an approved plan. 30 C.F.R. § 231.10(a).
If Exxon elects to make the lease effective to any designated development block, it must obtain federal approval of a detailed plan of operations including environmental preservation and surface reclamation. See Lease §§ IX(5) and XI, pp. 8-10, and Regs. 25 C.F.R. § 177.7 and 30 C.F.R. § 231.10(a) and (c). All operations must accord with an approved plan. 30 C.F.R. § 231.10(a).
Exxon must take whatever action may become necessary to protect the public health and environment and to meet the requirements of federal and state air and water pollution controls, operating regulations, and the orders of the federal mining supervisor. 30 C.F.R. §§ 231.4 and 231.73. Operations may be suspended if they threaten immediate, serious, or irreparable damage to the environment, 30 C.F.R. § 231.73(c), and prohibited or restricted if they affect specified conditions. 25 C.F.R. § 177.4(d). The permit and lease provisions coupled with the regulations establish continuing federal control with required specific consideration of the environmental aspects of the project.
BIA prepared the EIS. The Secretary considered the EIS before approving the Navajo-Exxon agreement. NEPA requires a statement covering (1) environmental impact of the proposed action, (2) unavoidable adverse environmental effects, (3) alternatives to the proposed action, (4) the relationship between local short-term uses of the environment and maintenance of long-term productivity, and (5) irreversible and irretrievable commitments of resources involved in the proposed action. See 42 U.S.C. § 4332(2)(C). In National Helium Corporation v. Morton, 10 Cir., 486 F.2d 995, cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772, we rejected the concept that an environmental statement is judicially reviewable on its merits to determine sufficiency, and held, Ibid. at 1002-1003, that judicial review of an environmental impact statement is limited to:
“(1) Whether [the statement] discusses all of the five procedural requirements of NEPA.
(2) Whether the environmental impact statement constitutes an objective good faith compliance with the demands of NEPA.
(3) Whether the statement contains a reasonable discussion of the subject matter involved in the five required areas.”
In Sierra Club v. Stamm, 10 Cir., 507 F.2d 788, 793, we said that the rule of reason must be applied in a judicial testing of an environmental impact statement, that the judicial concern is whether the statement is a good faith, objective, and reasonable presentation of the subject areas mandated by NEPA, and that the court should not second-guess the experts.
An EIS is required only in the event of proposed federal action and must be tailored to that action. See Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 2726-2727, 49 L.Ed.2d 576. The kind of impact statement depends on the kind of federal action. Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 322, 95 S.Ct. 2336, 45 L.Ed.2d 191. In the instant case the federal action is the approval of the Navajo-Exxon agreement relating to the prospecting permit and lease. We are concerned first with discovery and second with production of uranium. If uranium is not found, the project ends. The agreement spells out continuing federal control over exploration and detailed federal controls over mining and milling with specific directions pertaining to environmental consequences.
Plaintiffs specify six environmental impacts which they claim are not adequately covered by the EIS. Three of these, dewatering, tailings seepage and permanent contamination of aquifers are basically presented in the form of conflicting scientific findings. We decline to enter into this controversy of experts. It is enough that the problems were delineated with great care and informed the Secretary, as decision-maker, of environmental consequences.
A fourth relates to surface mining. The EIS was primarily concerned with underground mining because of the projected depths at which uranium is thought to be present. The likelihood of extensive surface mining is minimal. It is enough that the EIS covers the problems related to surface mining and the Secretary was advised of them when he approved the exploration features of the agreement.
Uranium mining produces an inert radioactive gas, radon, which on exposure to the atmosphere decays into a series of radioactive isotopes. For the protection of miners, fans in the mines disperse the radon. The EIS recognizes the emission of radon to the atmosphere and the possibility of air contamination in the immediate vicinity of the mines and mills. The EIS estimates daily radionuclide discharge levels from various operations, estimates meteorlogic dispersion rates, and presents expected doses to humans at various downwind unrestricted locations. The possible annual dosage is found to be of less magnitude than that deemed acceptable by the United States Nuclear Regulatory Commission. See 10 C.F.R. Part 20. The Secretary was well advised of the radon potential. The impact will be affected by the locations later selected for mine and mill sites. The agreement provides that when those sites are chosen further consideration must be given to environmental impact. For action by the Secretary on the Navajo-Exxon agreement the discussion of the radon problem is adequate.
Plaintiffs attack the EIS on the ground that it does not discuss adequately the cumulative effect of the project in conjunction with other resource developments that are now taking place, or in the future may take place in the area. It is enough to say that the EIS discusses cumulative impacts in detail. Mention is made of the location, proposed timing, and nature of other resource projects in the region. It finds no overlap in natural resource needs, discusses socio-economic impacts, and notes possible population changes. Certainty as to the cumulative effects of resource development projects requires prophecy beyond the capabilities of both scientists and courts. Neither are endowed with divine inspiration. It is enough that the EIS mentions and discusses foreseeable problems.
The EIS is a comprehensive, good faith, objective, and reasonable presentation of the subject areas mandated by NEPA. Sierra Club v. Stamm, 507 F.2d at 793. It adequately informs the Secretary of the project’s potential effect on the human environment. The Navajo-Exxon agreement requires continuing federal control over the environmental aspects of operations which will follow if exploration results in discovery which justifies mining and milling.
We affirm the denial of the preliminary injunction, reverse the judgment dismissing the action because of nonjoinder of the Tribe, and remand the case for further proceedings in the light of this opinion. Each party shall bear his own costs.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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KEARSE, Circuit Judge:
Defendant Robert H. Hopkins appeals from a judgment entered in the United States District Court for the District of Connecticut following a jury trial before Ellen Bree Burns, Judge, convicting him on one count of falsifying, tampering with, or rendering inaccurate a monitoring device or method required to be maintained pursuant to the Clean Water Act (“CWA” or the “Act”), 33 U.S.C. §§ 1251-1387 (1988 & Supp. V 1993), in violation of id. § 1319(c)(4); one count of violating the restrictions of a discharge permit issued pursuant to the Act, in violation of id. § 1319(c)(2)(A); and one count of conspiracy ' to violate §§ 1319(c)(2)(A) and (c)(4), in violation of 18 U.S.C. § 371 (1988). Hopkins was sentenced principally to 21 months’ imprisonment, to be followed by a two-year period of supervised release, and ordered to pay a $7,500 fine. On appeal, he contends that the district court improperly instructed the jury on the knowledge element of the offenses with which he was charged and erred in giving a “conscious avoidance” instruction with respect to the two substantive counts. For the reasons below, we affirm the judgment of conviction.
I. BACKGROUND
The present prosecution focused on environmental problems of Spirol International Corporation (“Spirol”), a manufacturer of metal shims and fasteners in northeastern Connecticut. Spirol’s manufacturing operation involved a zinc-based plating process that generated substantial amounts of waste-water containing zinc and other toxic materials; this wastewater was discharged into the nearby Five Mile River. The State of Connecticut’s Department of Environmental Protection (“DEP”), pursuant to authority delegated by the United States Environmental Protection Agency, administered the CWA provisions applicable to Spirol’s discharges into the river. In 1987, Spirol, then operating under the name “OEM Co.,” entered into a consent order with DEP, requiring Spirol to pay a $80,000 fine for past zinc-related discharge violations and to comply in' the future with discharge limitations specified in the order. In February 1989, DEP issued a modified “wastewater discharge permit” (the “DÉP permit”) imposing more restrictive limits on the quantity of zinc and other substances that Spirol was permitted to release into the river.
From at least 1987 through September 6, 1990, Hopkins was Spirol’s vice president for manufacturing. Hopkins signed the 1987 consent order with DEP on behalf of Spirol, and he had corporate responsibility for ensuring compliance with the order and the DEP permit. The present prosecution charged that between March 1989 and September 1990 Hopkins deliberately tampered with Spirol’s wastewater testing and falsified its reports to DEP. The government’s proof at trial included the testimony of Dennis Mark Morrison, Aaron Anderson, and John J. Morris, who at the pertinent times were Spirol employees. Taken in the light most favorable to the government, the evidence was as follows.
A. The Evidence as to the Sampling Process Directed by Hopkins
The DEP permit required Spirol each week to collect a sample of its wastewater and send it to an independent laboratory by Friday morning of that week. Spirol was required to report the laboratory results to DEP in a discharge monitoring report once a month. Under the DEP permit, the concentrations of zinc in Spirol’s wastewater were not to exceed 2.0 milligrams per liter in any weekly sample, nor to average more than one milligram per liter in any month.
During the period March 1989 to September 1990, Spirol began its weekly sampling process on Mondays. A composite sample of the plant’s wastewater was aggregated over a 24-hour period by Morrison and Anderson, who were involved in the zinc-plating process. Morrison was Anderson’s supervisor and reported directly to Hopkins. Before sending a sample to the independent laboratory, Morrison and Anderson measured the concentration of zinc in the sample, and Morrison reported the results to Hopkins. Morrison and Anderson testified that if the sample collected on a Tuesday contained less than one milligram of zinc per liter, it would be sent promptly to the independent laboratory with a “chain of custody” record signed by Hopkins. If the Tuesday sample was not below that level, however, it was not sent to the laboratory. Morris, Spirol’s maintenance engineer, testified that Hopkins expressed concern that if the samples did “not meet the permit requirements ... the company would be facing another fine.” (Trial Transcript (“Tr.”) at 48.) Accordingly, whenever the Tuesday in-house test indicated a zinc content above the one-milligram-per-liter level, Hopkins directed that that sample be discarded and that another 24-hour composite sample be taken on Wednesday. In 54 of the 78 weeks in question, Spirol’s samples were sent to the laboratory later than Tuesday.
If a Wednesday sample failed the in-house test, Hopkins sometimes ordered that it too be discarded and that another sample be taken on Thursday; but he more often instructed Morrison and Anderson to dilute the Wednesday sample with tap water or to reduce the zinc concentration using an ordinary coffee filter. Similarly, if the Thursday sample failed to meet the proper standard, Hopkins usually directed that it be diluted or filtered; but, Morrison testified, “A lot of times, we would go right through Friday.” (Tr. at 90.) Any Friday sample that failed to meet the standard was always diluted or filtered, in order that a good sample could be sent to the laboratory by the Friday deadline. Morrison testified that in some of the samples submitted to the laboratory, there was more tap water than wastewater.
From March 1989 to September 6, 1990, Hopkins filed with DEP monthly discharge monitoring reports consolidating the weekly test results from the independent laboratory. These reports showed no zinc concentrations above one milligram per liter.. On each report, ■ Hopkins signed the following certification:
I certify under penalty of law that this document and all attachments were prepared under by [sic ] direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, [sic] The information is, to the best of my knowledge and belief, true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility .of fine and imprisonment for knowing violations.
Contrary to Hopkins’s certifications of his belief as to truth and accuracy, Morrison testified that Hopkins had caused the samples to be “tampered with” about “40 percent of the time.” (Tr. at 115.) Morrison testified that on 25-30 occasions when he reported back to Hopkins that he had finally succeeded in getting a satisfactory sample by means of dilution or filtration, Hopkins responded, “I know nothing, I hear nothing.” (Tr. at 116.) Anderson testified that on one occasion in the summer of 1989, he reported directly to Hopkins that an unsatisfactory sample had been collected. Hopkins’s response was, “‘See what you could do with it’ ” (Tr. at 136); when Anderson returned three hours later and reported that the sample was now satisfactory, Hopkins signed the chain-of-custody record without comment, question, or sign of surprise.
Morris testified that he told Hopkins that the testing procedures being used were improper. Regardless of the test results, Spi-rol continued to discharge its wastewater into the river.
B. The Trial Court’s Instructions as to Knowledge
In December 1993, Hopkins was charged in a three-count indictment alleging (1) that he had knowingly falsified or tampered with Spirol’s discharge sampling methods, in violation of 33 U.S.C. § 1319(c)(4) (count one); (2) that he had knowingly violated the conditions of the DEP permit, in violation of 33 U.S.C. § 1319(c)(2)(A) (count two); and (3) that he had conspired to commit those offenses, in violation of 18 U.S.C. § 371.
At trial, the district court instructed the jury as follows, over Hopkins’s objections, on the knowledge element of each count. As to count one, the court stated:
Knowledge may be established by direct or circumstantial evidence. One may not willfully or intentionally remain ignorant of a fact, material or important to his conduct to escape the consequences of criminal law.
If you find beyond a reasonable doubt that the defendant was aware that there was a high probability that employees of Spirol were tampering with a monitoring device or method but he deliberately and consciously avoided confirming this fact so that he could deny knowledge if apprehended, then you may treat this deliberate avoidance of [sic ] the equivalent of knowledge, unless you find the defendant actually believed that Spirol employees were not tampering with a monitoring device or method.
A showing of negligence, mistake or even foolishness on the part of the defendant is not enough to support an inference of knowledge.
It is not necessary for the government to prove that the defendant intended to violate the law or that the defendant had any specific knowledge of the particular statutory, regulatory or permit requirements imposed under the Clean Water Act.
The government must prove, beyond a reasonable doubt, however, that the defendant acted voluntarily or intentionally to falsify, tamper with or render inaccurate a monitoring device or method and that he did not do so by mistake, accident or other innocent reason.
(Tr. at 285-86.) The court delivered substantially the same instruction with respect to count two:
To reiterate, the government need not prove that the defendant intended to violate the law or that the defendant had any specific knowledge of the specific requirements of the conditions and limitations of the permit.
The government must prove, beyond a reasonable doubt, however, thatlin taking actions or causing actions to be taken, in violation of the permit, he acted voluntarily or intentionally and not by mistake, accident, ignorance of the facts, or for other innocent reason.
The element of acting knowingly may also be satisfied if you find beyond a reasonable doubt ... that the defendant willfully or intentionally remained ignorant of relevant material facts.
(Tr. at 288.)
With respect to the knowledge element of the conspiracy charged in count three, the court instructed that
[w]hile the government must prove that the defendant entered the conspiracy knowingly and willfully, understanding the purpose of the agreement; it need not establish that the defendant acted with a specific intent to violate or disregard the law.
Thus, if you are convinced beyond a reasonable doubt that the defendant entered the conspiracy with an understanding that the purpose of the conspiracy was to falsify or tamper with a monitoring device or method, and/or to violate the state discharge permit, it is immaterial whether the defendant knew such acts are unlawful.
(Tr. at 293-94.)
The jury convicted Hopkins on all three counts. He was sentenced as indicated above, and this appeal followed.
II. DISCUSSION
On appeal, Hopkins contends principally that the district court instructed the jury erroneously as to the knowledge element of each count of the indictment. He also contends that, as to the substantive counts, the court should not have given a conscious-avoidance instruction. ,We reject all of his contentions.
A. The Knowledge Requirements Under the CWA
1. Section 1319(c)(2)(A)
Subsection (2) of § 1319(c), whose violation was alleged in count two of the indictment, establishes criminal penalties, including fines of up to $50,000 per day and imprisonment for up to three years, for “[a]ny person” who, inter alia,
knowingly violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of [Title 33], or any permit condition or limitation implementing any of such sections in a permit issued under [the CWA] by the Administrator or by a State.
33 U.S.C. § 1319(c)(2)(A) (emphasis added). Hopkins contends that the district court should have instructed the jury that it could not’ find him guilty of violating this section unless it found that he knew he was acting in violation of the CWA or the DEP permit. We disagree.
Section 1319(c)(2)(A) itself does not expressly state whether the adverb “knowingly” is intended to require proof that the defendant had actual knowledge that his conduct violated any of the statutory provisions that follow the phrase “knowingly violates” or had actual knowledge that his conduct violated a permit condition. As a matter of abstract logic, it would seem that a statute making it unlawful to “knowingly violate[ ]” a given statutory or permit provision would require proof that the defendant both violated and knew that he violated that provision. In defining the mental state required for conviction under a given statute, however, the courts must seek the proper “ ‘inference of the intent of Congress,’ ” Staples v. United States, — U.S. -, -, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994) (“Staples”) (quoting United States v. Balint, 258 U.S. 250, 253, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922)), and in construing knowledge elements that appear in so-called “public welfare” statutes — ie., statutes that regulate the use of dangerous or injurious goods or materials — the Supreme Court has inferred that Congress did not intend to require proof that the defendant knew his actions were unlawful. See, e.g., United States v. International Minerals & Chemical Corp., 402 U.S. 558, 565, 91 S.Ct. 1697, 1701, 29 L.Ed.2d 178 (1971) (discussed below); United States v. Freed, 401 U.S. 601, 607-08, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356 (1971) (conviction under 26 U.S.C. § 5861(d) for possession of unregistered hand grenades did not require knowledge of registration requirement); United States v. Dotterweich, 320 U.S. 277, 280-81, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943) (strict liability under 21 U.S.C. § 331 for distribution of adulterated drugs); United States v. Balint, 258 U.S. at 252-54, 42 S.Ct. at 302-03 (strict liability under § 2 of Narcotic Act of December 17, 1914, for sale of narcotics).
In United States v. International Minerals & Chemical Corp. (“International Minerals”), the Court construed a statute that authorized the Interstate Commerce Commission (“ICC”) to promulgate regulations governing the transport of corrosive liquids and imposed criminal penalties on those who “knowingly violate[d] any such regulation,” see 18 U.S.C. § 834(f) (1970) (repealed 1979). The Court held that the quoted phrase required the government to prove only that the defendant knew the nature of his acts, not that he knew his acts violated an ICC regulation. See 402 U.S. at 565, 91 S.Ct. at 1701. The Court stated that “where ... dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.” Id. Applying this presumption of awareness, the Court concluded that the phrase “knowingly violate[d] any [ICC] regulation” was meant to be a “shorthand” method of referring to the acts or omissions contemplated by the statute. Id. at 560-62, 91 S.Ct. at 1699-1700. Noting “the general rule that ignorance of the law is no excuse,” id. at 563, 91 S.Ct. at 1700, the Court “decline[d] to attribute to Congress the inaccurate view that” use of the word “knowingly” would “require[ ] proof of knowledge of the law, as well as the facts,” id. See also Staples, — U.S. at - n. 3, 114 S.Ct. at 1805-06 n. 3 (Ginsburg, J., concurring) (“The mens rea presumption requires knowledge only of the facts that make the defendant’s conduct illegal, lest it conflict with the related presumption, ‘deeply rooted in the American legal system,’ that, ordinarily, ‘ignorance of the law.or a mistake of law is no defense to criminal prosecution.’ ”) (quoting Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 609, 112 L.Ed.2d 617 (1990)).
This Court in United States v. Laughlin, 10 F.3d 961, 964-67 (2d Cir.1993) (“Laughlin”), cert. denied, — U.S. -, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994), applied the International Minerals “presumption of awareness of regulation” in construing provisions of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992k (1988 & Supp. V 1993), and the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675 (1988 & Supp. V 1993). RCRA provides for the imposition of criminal penalties against any person who “knowingly treats, stores, or disposes of any hazardous waste identified or listed under [RCRA]” without a permit, 42 U.S.C. § 6928(d)(2). We held that this provision did not require the government to prove that the defendant knew that the waste he dealt with was identified or listed under RCRA or that he lacked a disposal permit. Rather, we held that the government need prove only that the defendant knew the nature of the hazardous waste matter with which he dealt. See Laughlin, 10 F.3d at 966. Accord United States v. Wagner, 29 F.3d 264, 265-66 (7th Cir.1994); United States v. Dean, 969 F.2d 187, 191 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1852, 123 L.Ed.2d 475 (1993); United States v. Dee, 912 F.2d 741, 745 (4th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991); United States v. Hoflin, 880 F.2d 1033, 1037-38 (9th Cir.1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990). Similarly, with respect to CERCLA, which requires agency notification of an excess discharge of a hazardous substance by any person in charge of a facility “as soon as he has knowledge of any release (other than a federally permitted release),” 42 U.S.C. § 9603(a), we held that the government was not required to prove that the defendant was aware of the regulatory requirements but only that he was “aware of his acts.” Laughlin, 10 F.3d at 967.
For several reasons, we view the presumption of awareness of regulation, applied to the ground-pollution offenses in Laughlin, to be equally applicable to the phrase “knowingly violates [the specified sections or permit]” in § 1319(e)(2)(A). Congress considered discharges of hazardous waste onto the ground, which are regulated in RCRA, as no less serious than such discharges into water, see, e.g., S.Rep. 99-50, 99th Cong., 1st Sess. 29 (1985) (discussing increase in criminal penalties proposed by 1987 amendments to CWA to parallel existing penalties under “RCRA [to] reflect the commensurately serious nature of the violations to be criminally prosecuted under the Clean Water Act”). Further, the CWA sections to which § 1319(c)(2)(A) refers regulate a broad range of pollutant discharges, including “[w]ater quality related effluent[s],” see 33 U.S.C. § 1312; “toxic pollutants” listed in accordance with § 1317(a), see 33 U.S.C. § 1317; “[o]il and hazardous substance[s],” see 33 U.S.C. § 1321; and “sewage sludge,” see 33 U.S.C. § 1345. The vast majority of these substances are of the type that would alert any ordinary user to the likelihood of stringent regulation. Moreover, the very fact that a governmental permit has been issued enhances the user’s awareness of the exis-. tence of regulation.
The legislative history of § 1319(c)(2)(A) also lends support to the conclusion that, under that section, the government need not prove that the defendant knew his conduct was unlawful. . Prior to 1987, the substance of § 1319(e)(2)(A) appeared in § 1319(c)(1), which provided penalties for one who “willfully or negligently” violated that section. See 33 U.S.C. § 1319(c)(1) (1982) (emphasis added). In 1987, Congress amended § 1319(c)(1), placing the prohibitions against intentional and negligent violations in separate sections, addressing negligent violations in § 1319(c)(1)(A) and intentional violations in § 1319(e)(2)(A); and in § 1319(c)(2)(A), it changed the term “willfully” to “knowingly.” Though the congressional reports on the bills leading to the 1987 amendments do not expressly discuss the change from “willfully” to “knowingly,” they make clear that one goal of the amendments was to strengthen the criminal sanctions. See, e.g., S.Rep. No. 50, 99th Cong., 1st Sess: 30 (1985) (noting “[s]trong public support” for “[t]he addition and strengthening of criminal sanctions in the Act for knowing violations”); H.R.Conf. Rep. No. 1004, 99th Cong., 2d Sess. 138 (1986) (amendments intended to establish “increased penalties for ... criminal violations of the [CWA]”). One way of heightening criminal sanctions is to reduce the mens rea element of the prohibited acts, and a change from prohibiting “willful” acts to prohibiting “knowing” acts may be viewed as such a reduction. The term “willfulness” has generally, albeit not uniformly, been interpreted as referring to knowledge that the conduct in question was wrongful or unlawful. See, e.g., Ratzlaf v. United States, — U.S. -, -, 114 S.Ct. 655, 657, 126 L.Ed.2d 615 (1994) (to convict of “willfully” structuring transactions in violation of 31 U.S.C. § 5322, government must prove that the defendant had knowledge that structuring itself was unlawful); Cheek v. United States, 498 U.S. 192, 201, 111 S.Ct. 604, 610, 112 L.Ed.2d 617 (1991) (willfulness in 26 U.S.C. § 7201, prohibiting federal tax evasion, means the “voluntary, intentional violation of a known legal duty”) (internal quotes omitted); United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976) (per curiam) (same re 26 U.S.C. § 7206(1), prohibiting willful filing of false federal income tax returns); United States v. Bishop, 412 U.S. 346, 361, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973) (same); United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226, 78 L.Ed. 381 (1933) (same re 26 U.S.C. § 1265(a), prohibiting willful failure to pay federal tax); United States v. Gurary, 860 F.2d 521, 523 (2d Cir.1988) (same re prosecution under 26 U.S.C. § 7206(2) for willfully aiding and assisting the filing of false federal tax returns), cert. denied, 490 U.S. 1035, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). But see United States v. Collins, 957 F.2d 72, 75-77.(2d Cir.) (inferring, in light of legislative history, that Congress intended “willfully” in 18 U.S.C. § 922(a)(1)(D) (unlicensed dealing in firearms) to mean merely knowingly and purposefully doing an act that the law forbids), cert. denied, 504 U.S. 944, 112 S.Ct. 2285,119 L.Ed.2d 210 (1992); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir.1970) (under 15 U.S.C. § 78ff(a), a defendant may be convicted of willfully violating a securities regulation of whose existence he is unaware), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971).
The prevalent interpretation of “willfully” to mean intentionally violating a law of whose existence the defendant was aware was reflected in United States v. Murdock, for example, in which the Supreme Court held that a defendant prosecuted under an Internal Revenue Code provision prohibiting a “willful[]” failure to pay a tax may defend by showing his bona fide misunderstanding of the requirements of that section. See 290 U.S. at 396, 54 S.Ct. at 226. The International Minerals Court, in ruling that “knowingly violates [ICC] regulations” did not require knowledge of the pertinent regulations, pointed out that if Congress had wished to require proof that the defendant knew his acts were unlawful, it could have used the word “willfully” as it had done in the provision construed in Murdock. See International Minerals, 402 U.S. at 564, 91 S.Ct. at 1701. We think this observation is especially pertinent where Congress has amended a statutory provision, as it did with respect to § 1319(c)(2)(A), to change the mens rea element from “willfully” to “knowingly.” We infer from this reduction that, by the latter term, Congress intended not to require proof that the defendant knew his conduct violated the law or a regulatory permit.
Thus, we conclude that the purpose and legislative history of § 1319(c)(2)(A)-indicate that Congress meant that that section would be violated if the defendant’s acts were proscribed, even if the defendant was not aware of the proscription.
The only other Circuit, of which we are aware, to construe the knowledge requirement of § 1319(c)(2)(A) has reached the same conclusion. In United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 939, 130 L.Ed.2d 884 (1995), the Ninth Circuit noted that the criminal provisions of the CWA define a set of “public welfare” offenses that are “clearly designed to protect the public at large from the potentially dire conséquences- of water pollution.” Id. at 1286 (citing S.Rep. No. 99-50, 99th Cong., 1st Sess. 29 (1985)). The Weitzenhoff court upheld the trial court’s instruction that, with respect to knowledge, the government was required to prove only that a defendant knew he was discharging the pollutants in question and was “not required to prove that the defendant knew that his act[s] or omissions were unlawful.” Id. at 1283 (internal quotes omitted). Rejecting the defendants’ contention that the government should have to prove their knowledge of the pertinent provisions of their discharge permit, the court concluded that “[t]he International Minerals rationale requires that we impute to these parties knowledge of their operating permit.” Id. at 1285.
Hopkins’s reliance on Staples, — U.S. -, 114 S.Ct. 1793, and on Posters ‘N’ Things, Ltd. v. United States, — U.S. -, -, 114 S.Ct. 1747, 1753-54, 128 L.Ed.2d 539 (1994), for the contrary proposition is misplaced. Staples involved 26 U.S.C. § 5861(d) (1988), which prohibits the possession of unregistered machine guns and does not specify a mens rea element. The defendant had unsuccessfully requested an instruction that the jury, in order to convict, must find that he knew the weapon he possessed would fire automatically; the court of appeals affirmed his conviction on the ground that the government was not required to prove a defendant’s knowledge of a weapon’s physical characteristics. The Supreme Court reversed the conviction, ruling that the defendant could not properly be convicted unless the government proved that he knew the nature of his acts. — U.S. at -, 114 S.Ct. at 1804. The Court in no way suggested, however, that the government had the burden of proving that the defendant also knew that his acts violated § 5861(d).
Posters ‘N’ Things also involved prosecution under a statutory provision that contained no express mens rea element, to wit, 21 U.S.C. § 857(a)(1) (1988) (repealed 1990), which prohibited “use of ... [an] interstate conveyance as part of a scheme to sell drug paraphernalia.” The Court concluded that the section was intended to require proof of knowledge that the merchandise sold would probably be used with drugs, but not proof of knowledge that the merchandise was within the statutory definition of “drug paraphernalia.” — U.S. at -, 114 S.Ct. at 1753-54.
In sum, we conclude for the foregoing reasons that the trial court correctly instructed the jury .that in a prosecution under § 1319(c)(2)(A), the government was required to prove that Hopkins knew the nature of his acts and performed them intentionally, but was not required to prove that he knew that those acts violated the CWA, or any particular provision of that law, or the regulatory permit issued to Spirol.
2. The Meaning of “Knowingly” in § 1319(c) (tí
We reach the' same conclusion with respect to subsection (4) of § 1319(c), whose violation was alleged in count one of the indictment. That section provides, in pertinent part, that
[a]ny person who ... knowingly falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained under this chapter, shall [be guilty of a felony].
33 U.S.C. § 1319(e)(4) (emphasis added). Though Hopkins contends that the district court should have instructed the jury that it could not find him guilty of violating this section unless he knew that accurate maintenance of the monitoring methods was required by the CWA, a term that appears in several places in the same statute should generally be construed “the same way each time it appears,” Ratzlaf v. United States, — U.S. at -, 114 S.Ct. at 660. Accordingly, we reject Hopkins’s § 1319(c)(4) challenge for the reasons stated above with respect to the “knowingly” elemént of § 1319(c)(2)(A).
In light of our rejection of Hopkins’s contentions concerning the knowledge requirements of §§ 1319(c)(2)(A) and (c)(4), his similar challenge to the district court’s instruction on the conspiracy count is also without merit.
3. The Negligence Contention
Hopkins also contends that the jury, consistent with the trial court’s instructions, could have convicted him for conduct that was merely negligent or .innocent. In light of the court’s actual instructions and the evidence presented, this contention is merit-less. With respect to count one, for example, the court instructed, inter alia, that the government was required to prove that Hopkins had a high degree of awareness that the testing process was being tampered with, and prove that he “did not [falsify or tamper with that process] by mistake, accident or other innocent reason” (Tr. at 286), and that “[a] showing of negligence, mistake or even foolishness on the part of the defendant is not enough to support an inference of knowledge” (id. at 285). With respect to count two, the court similarly instructed that the government was required to prove that Hopkins had “acted voluntarily or intentionally and not by mistake, accident, ignorance of the facts, or for other innocent reason.” (Id. at 288.)
Nor did the evidence show conduct that was merely negligent. Rather, the evidence and testimony at trial overwhelmingly indicated both that Hopkins was aware of the permit requirements and that he knew that numerous samples of Spiral's wastewater discharge contained concentrations of zinc in excess of the permitted levels. In his capacity as a corporate officer, Hopkins had signed the 1987 consent order imposing detailed discharge limitations; the February 1989 permit modification had been sent to Spirol to the attention of Hopkins; and Hopkins had sole corporate responsibility for supervising the Spirol wastewater testing program throughout the relevant period. In carrying out that supervision, Hopkins repeatedly warned Morrison when the zinc concentrations in a sample were “close to the borderline,” repeatedly sent Morrison back for cleaner samples, and specifically alluded to the one-milligram-per-liter permit limitation by telling Morrison to “make sure it doesn’t go over one.” (Tr. 100.)
We see no possibility that the jury could have convicted Hopkins solely for negligence.
B. The Conscious-Avoidance Instruction
Hopkins also challenges the district court’s instruction that the jury could find that Hopkins had the equivalent of knowledge if it found that “there was a high probability that employees of Spirol were tampering with a monitoring device or method but [Hopkins] deliberately and consciously avoided confirming this fact so that he could deny knowledge if apprehended.” Hopkins argues that such an instruction was inappropriate because it was contrary to the government’s contention that he had actual knowledge. His challenge has no merit.
A conscious-avoidance charge is appropriate when (a) the element of knowledge is in dispute, and (b) the evidence would permit a rational juror to conclude beyond a reasonable doubt “that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact,” United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir.1993). See generally United States v. Civelli, 883 F.2d 191, 194-95 (2d Cir.), cert. denied, 493 U.S. 966, 110 S.Ct. 409, 107 L.Ed.2d 374 (1989). Such an instruction is not inappropriate merely because the government has primarily attempted to prove that the defendant had actual knowledge, while urging in the alternative that if the defendant lacked such knowledge it was only because he had studiously sought to avoid knowing what was plain. See, e.g., United States v. Mang Sun Wong, 884 F.2d 1537, 1541 (2d Cir.1989), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990).
Both prerequisites for a conscious-avoidance instruction were present here. Though Hopkins did not testify at trial, his knowledge plainly was in dispute, for the thrust of his cross-examination and arguments was that he did not know about the tampering. For example, in his closing argument, defense counsel argued that Hopkins could have corrected matters “if [he] had known what was going on.” (Tr. at 253.) Further, though there was ample evidence that Hopkins himself had ordered the tampering with the samples that were to be sent to the laboratory, there was also evidence that he had studiously avoided confirming the tampering. Morrison testified, for example, that on 25-30 occasions when he presented Hopkins with satisfactory samples after having previously presented him with unsatisfactory samples, Hopkins said, “I know nothing, I hear nothing.” In light of Hopkins’s litigation position and the evidence at trial, the district court did not err in instructing the jury that it could find Hopkins guilty based upon his conscious attempt to avoid actual knowledge that the samples had been falsified.
CONCLUSION
We have considered all of Hopkins’s arguments on this appeal and have found them to be without merit. The judgment of conviction is affirmed.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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KATZMANN, Circuit Judge.
The New York City Empowerment Zone was created pursuant to a Congressional act and was awarded $100 million in federal block grants to foster the revitalization of economically distressed areas. This case raises an issue of first impression: whether the Zone’s subsequent use of those federal funds in connection with individual projects triggers the historic preservation review process set forth in Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f. The plaintiffs argue that it does, and therefore contend that construction of the East River Plaza project, a planned East Harlem retail shopping complex to which the Zone has allocated $5 million from the previously-awarded federal block grants, cannot go forward until a Section 106 review of the project is conducted. We hold that because all approval and funding decisions as to the East River Plaza project are made at the state and local level, Section 106 — which is triggered only when a federal agency has jurisdiction or licensing authority over the project at issue — is inapplicable here. We therefore affirm the district court’s grant of summary judgment to the defendants.
I.
A.
1. The New York City Empowerment Zone: Statutory and Administrative Background
In the Omnibus Budget Reconciliation Act of 1993 (“OMBRA”), Pub.L. No. 103-66,107 Stat. 312 (1993), Congress provided for the creation of empowerment zones and enterprise communities to promote the “[rjevitalization of economically distressed areas through expanded business and employment opportunities.” H.R.Rep. No. 103-111, at 791 (1993), as reprinted in 1993 U.S.C.C.A.N. 378, 1021. As part of the OMBRA, Congress authorized the United States Department of Housing and Urban Development (“HUD”) to designate up to six urban empowerment zones that would each receive various tax incentives as well as up to $100 million in federal block grant funds from the United States Department of Health and Human Services (“HHS”) to stimulate economic and social renewal. Pub.L. No. 103-66 § 13761; 42 U.S.C. § 1397f; 60 Fed.Reg. 3034-01, at 3034. Congress further provided that local governments could nominate areas for empowerment zone status, and required any application for an empowerment zone to include a “strategic plan” that
(A) describes the coordinated economic, human, community, and physical development plan and related activities proposed for the nominated area,
(B) describes the process by which the affected community is a full partner in the process of developing and implementing the plan and the extent to which local institutions and organizations have contributed to the planning process,
(C) identifies the amount of State, local, and private resources that will be available in the nominated area and the private/public partnerships to be used, which may include participation, by, and cooperation with, universities, medical centers, and other private and public entities,
(D) identifies the funding requested under any Federal program in support of the proposed economic, human, community, and physical development and related activities,
(E) identifies baselines, methods, and benchmarks for measuring the success of carrying out the strategic plan, including the extent to which poor persons and families will be empowered to become economically self-sufficient, and
(F) does not include any action to assist any establishment in relocating from one area outside the nominated area to the nominated area, except that assistance for the expansion of an existing business entity through the establishment of a new branch, affiliate, or subsidiary is permitted if-
(i) the establishment of', the new branch, affiliate, or subsidiary will not result in a decrease in employment in the area of original location or in any other area where the existing business entity conducts business operations, and
(ii) there is no reason to believe.that the new branch, affiliate or subsidiary is being established with the intention of closing down the operations of the existing business entity in the area of its original location or in any other area where the existing business entity conducts business operationfs].
26 U.S.C. § 1391(f)(2).
Pursuant to this- application process, HUD designated the New York City Empowerment Zone — an area comprising certain sections of Upper Manhattan and the South Bronx — as one of the six initial urban empowerment zones. HHS, in turn, proceeded to make two $50 million grants, one in 1994 and, one in 1995, to the New York City Empowerment Zone. These grants were issued to entities that subsequently became known as the Empire State Development Corporation (“ESDC”), a New York State agency. The $100 million remains in an HHS “draw-down” account, from which ESDC can withdraw funds without advising HHS of the specific purpose for which the funds will be used. New York State and New York City also each pledged an additional $100 million to the New York City Empowerment Zone, to be paid over a ten-year period. Thus, the Zone ended up with a total investment pool of $300 million, drawn, equally from the federal, state, and city governments.
Several local entities were created to manage the operation and funding of the Zone. The ESDC created the New York Empowerment Zone Corporation (“NYEZC”), which is charged with reviewing and monitoring the empowerment zone program. New York State holds 51% of the stock of NYEZC, and New York City holds the other 49%. In addition, the residents of Upper Manhattan created the Upper Manhattan Empowerment Zone Development Corporation (“UMEZDC”) to develop initiatives for, and administer funds to, their portion of the Zone. The Bronx Overall Economic Development Corporation (“BOEDC”) was similarly created for the South Bronx. Representatives from UMEZDC and BOEDC sit on the board of directors of the NYEZC, along with state and city representatives. In addition, an HUD representative participated as a non-voting director of the NYEZC until 2002, at which point HUD discontinued its participation.
Two memoranda serve to document and clarify the relationships among the various entities described above. First, a Memorandum of Agreement among HUD, New York State, and New York City provides that the State and City shall submit semiannual reports and annual narrative summaries to HUD regarding actions taken in accordance with the strategic plan for the New York City Empowerment Zone, and that HUD shall make periodic findings on the continuing eligibility and validity of the designation of the Zone. It further provides that HUD may revoke the “empowerment zone” designation if it is determined that the Zone has (1) modified the boundaries of the area; (2) failed to make progress in achieving the benchmarks and goals of the Strategic Plan; or (3) not complied substantially with the goals of the Strategic Plan. This de-designation provision closely tracks the statutory language of 26 U.S.C. § 1391, which provides that designation of an empowerment zone can be revoked by HUD upon a determination that the state or local government “(A) has modified the boundaries of the area, or (B) is not complying substantially with, or fails to make progress in achieving the benchmarks set forth in, the strategic plan.” 26 U.S.C. § 1391(d)(2).
. Second, a Memorandum of Understanding among New York State, New York City, the ESDC, NYEZC, UMEZDC, BOEDC, the Bronx Borough President, and the United States Representatives for the 15th and 16th Congressional Districts provides that the local entities — namely, UMEZDC and BOEDC — will select and develop project proposals for their respective regions of the Zone, and will then submit these proposals to NYEZC for approval. It further provides that when such projects are approved to receive Zone funding, ESDC is responsible for disbursing the appropriate federal block grant funds and the New York State-provided funds to NYEZC, and that the New York City Department of Business Services is responsible for disbursing the appropriate city funds to the NYEZC. NYEZC is then, in turn, to disburse such funds to UMEZDC or BOEDC, as applicable.
2. The East River Plaza project
In 1996, defendant-appellee Tiago Holdings, LLC (“Tiago”), a real estate developer, proposed a large shopping center development project — to be known as East River Plaza^ — in East Harlem, a neighborhood that falls within the boundaries of the New York City Empowerment Zone and within the region covered by UMEZDC. The plans for East River Plaza called for a 500,000 square foot, four-story retail shopping complex, located between 116th and 119th Streets along the Franklin Delano Roosevelt Drive. At the time, the present occupant of that site was the vacant Wash-burn Wire Factory, which had been constructed during the early 1900s by descendants of Ichabod Washburn (an inventor of early wire production processes) and had ceased operations as of 1976. Tiago’s proposed plans for the East River Plaza required a demolition of the Washburn Wire Factory buildings. In connection with these plans, the New York State Office of Parks, Recreation and Historic Preservation conducted a historic resource review, and determined that the Washburn Wire Factory did not meet the criteria for inclusion in the National Register of Historic Places and that the East River Plaza project would have no impact on surrounding sites that might be eligible for inclusion in the National Register. The National Park Service of the United States Department of the Interior subsequently reviewed and affirmed New York State’s decision not to nominate the Washburn Wire Factory to the National Register.
Tiago projected the cost of the East River Plaza project to be $160 million, and requested $15 million in loans from UMEZDC for the project. On September 10, 2001, the UMEZDC staff issued a written recommendation that this loan be granted, noting that East River Plaza was likely to enhance the physical revitalization of East Harlem, to spread new development activity eastward to East Harlem, and to create approximately 1,400 full-time jobs. On October 22, 2001, the Board of Directors of UMEZDC voted in favor of Tiago’s request for $15 million in financing, and authorized UMEZDC to submit the project to the NYEZC for funding approval. On November 16, 2001, NYEZC’s Board of Directors voted to approve the requested $15 million loan — projected to come equally from city funds, state funds, and the previously-awarded federal block grants, as is the NYEZC’s typical practice — in funding for East River Plaza. Thus, a total of $5 million in federal block grant money was slated for the project.
On February 10, 2003, after the demolition of the Washburn Wire Factory began, one of the plaintiffs in this action contacted the president of UMEZDC to request that in light of the planned allocation of federal funds to the East River Plaza project, a historic preservation review pursuant to Section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f, be conducted for the project. It is undisputed, however, that no Section 106 review took place.
B.
The plaintiffs proceeded to file suit under Section 106 of the NHPA, seeking (1) a declaratory judgment that HUD and HHS were obliged to conduct a historic preservation review of the East River Plaza project pursuant to Section 106, given the planned use of $5 million in federal funds for the project; (2) an injunction enjoining NYEZC, UMEZDC, and Tiago from continuing with the demolition of the Washburn Wire Factory until a Section 106 review had been completed; and (3) legal fees and costs. The defendants opposed the plaintiffs’ motion for a preliminary injunction and filed a cross-motion to dismiss the complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
By Memorandum and Order dated August 19, 2003, the district court denied plaintiffs’ motion for a preliminary injunction, finding that they had demonstrated neither a likelihood of success on the merits nor irreparable harm. After the issuance of this order, the remaining sections of the Washburn Wire Factory were demolished. On June 11, 2004, the district court issued a Memorandum and Order converting the defendants’ motion to dismiss into a motion for summary judgment, and granting the defendants’ motion on grounds that despite the likely usage of $5 million in federal block grant funds for the East River Plaza project, there was insufficient federal involvement or control over the project to trigger review under Section 106.
This appeal followed.
II.
A.
At the outset, we note the applicable standard of review. We review a grant of summary judgment de novo, construing the record in the light most favorable to the non-moving party. See, e.g., Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir.2004). Where, as here, no disputed issues of material fact exist, “our task is to determine whether the district court correctly applied the law.” Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir.1995) (internal quotation marks omitted).
B.
Before evaluating the merits of the plaintiffs’ claim under Section 106 of the NHPA, we pause to note that both the parties and the district court assumed that the NHPA provides the plaintiffs with a private right of action in this case. This Circuit has not yet addressed that issue, but because this is a statutory question rather than one of Article III jurisdiction, we need not resolve it where the case can otherwise be resolved in the defendants’ favor. See, e.g., Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 n. 4 (1st Cir.2003) (similarly declining to reach the question of whether a private right of action exists under the NHPA). For the reasons set forth below, we conclude that the case can be so resolved, and thus assume, without deciding, that the plaintiffs were entitled to bring this action pursuant to Section 106 of the NHPA.
The NHPA, which was passed in 1966, has a fairly broad mandate, in keeping with the longstanding Congressional interest in historic preservation. See WATCH v. Harris, 603 F.2d 310, 320-26 (2d Cir. 1979). It “requires each federal agency to take responsibility for the impact that its activities may have upon historic resources, and establishes the Advisory Council on Historic Preservation.. .to administer the Act.” Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 755 (D.C.Cir.2003) (internal quotation marks omitted). In this regard, Section 106 of the NHPA provides that
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.
16 U.S.C. § 470f.
Section 106 is therefore primarily procedural in nature. See, e.g., Morris County Trust for Historic Pres. v. Pierce, 714 F.2d 271, 278-79 (3d Cir.1983). It does not itself require a particular outcome, but rather ensures that the relevant federal agency will, before approving funds or granting a license to the undertaking at issue, consider the potential impact of that undertaking on surrounding historic places. As such, courts have sometimes referred to Section 106 as a “stop, look, and listen” provision. See, e.g., Illinois Commerce Comm’n v. Interstate Commerce Comm’n, 848 F.2d 1246, 1260-61 (D.C.Cir.1988); Pres. Coalition, Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir.1982).
The plaintiffs argue that the planned allocation of $5 million in federal funds to the East River Plaza project automatically triggers a Section 106 review of the project. They point out that Section 301 of the NHPA defines an “undertaking” as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including. . .those carried out with Federal financial assistance.” 16 U.S.C. § 470w(7)(B). They contend that as a result, the East River Plaza project must be an undertaking for purposes of the NHPA.
We note initially that under the definition set forth in Section 301, it is not entirely clear whether all projects carried out with federal financial assistance are “undertakings,” or whether only those projects that actually receive their funding “under the direct or indirect jurisdiction of a Federal agency” qualify as undertakings. Cf. Sheridan Kalorama Historical Ass’n v. Christopher, 49 F.3d 750, 755 (D.C.Cir. 1995) (noting a similar ambiguity with respect to projects that require federal licenses). The definition of “undertaking” contained in the most recent NHPA regulations promulgated by the ACHP mirrors the definition set forth in Section 301, and thus does not clarify this issue. See 36 C.F.R. § 800.16(y) (defining “undertaking” as a “project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including.. .those carried out with Federal financial assistance”).
It is, however, unnecessary for us to reach this question. Even assuming that the East River Plaza is an “undertaking” under the Section 301 of the NHPA solely by virtue of its planned receipt of federal block grant funds, Section 106 itself still applies only to two types of entities: first, any Federal agency “having direct or indirect. jurisdiction over a proposed Federal or federally assisted undertaking,” and second, “any Federal department or independent agency having authority to license any undertaking.” See Sheridan Kalorama, 49 F.3d at 755 (“[Hjowever broadly the Congress or the ACHP define ‘undertaking,’ § 106 applies only to: 1) ‘any Federal agency having. . .jurisdiction over a proposed Federal or federally assisted undertaking’; and 2) ‘any Federal... agency having authority to license any undertaking’ ” (quoting 16 U.S.C. § 470f)); see also Fowler, 324 F.3d at 759-60. Thus, unless either of the federal agency defendants — HUD and HHS — can be said to have jurisdiction or licensing authority over the East River Plaza project, Section 106 is inapplicable to the project.
The plaintiffs have not attempted to claim that either HUD or HHS has the authority to license the East River Plaza project. Rather, the critical question is whether the project can be viewed as falling within the direct or indirect jurisdiction of HUD or HHS, given the project’s planned receipt of $5 million in federal funds. That question, in turn, requires us to determine the meaning of “direct or indirect jurisdiction.”
The NHPA nowhere explicitly defines the phrase “direct or indirect jurisdiction.” Nor do the regulations that have been promulgated by the ACHP. See 36 C.F.R. § 800 et. seq. The text of Section 106 itself, however, provides an important clue as to the meaning of these words. In stating that “[t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any state... shall, prior to the approval of the expenditure of any Federal funds on the undertaking .. .take into account the effect of the undertaking,” 16 U.S.C. § 470f (emphasis added), the text indicates that to have a qualifying level of jurisdiction over the undertaking, the federal agency must have some degree of power to approve or otherwise control the expenditure of federal funds on that undertaking. Indeed, the evident purpose of Section 106 is to ensure that before federal funds are expended on an undertaking, the federal agency has taken into account the undertaking’s potential impact on surrounding historic resources. See, e.g., Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989) (“[A]n agency with jurisdiction over a federal or federally-assisted project must comply [with Section 106] before approving funds for it”) (emphasis added); Sheridan Kalorama, 49 F.3d at 755-756. If the federal agency has no direct or indirect power to effectuate the results of the Section 106 review by making a resultant funding decision, then such a review will be merely an empty exercise.
Here, based on a review of the particular statutory and administrative structure at issue, we conclude that neither HUD nor HHS has the power to control the expenditure of the federal block grant monies on the East River Plaza project. It is undisputed that HUD and HHS played no role in deciding to approve the total allocation of $15 million in NYEZC funds (including $5 million from the federal block grants) to the project. Rather, as set forth above, it was the staff of UMEZDC — the local development company for the Upper Manhattan portion of the New York City Empowerment Zone— that initially recommended the financing in question, after which point the UMEZDC Board of Directors voted to approve that funding. Thereafter, the proposal was submitted to the NYEZC, a corporation whose stock is held solely by New York City and New York State, for final approval. As such, the process by which these funds were allocated took place entirely at the state and local level. Indeed, the HUD officer with responsibility for the New York City Empowerment Zone during the relevant period submitted a sworn affidavit stating that HUD played no role in allocating or approving funds for the East River Plaza project, and that its involvement was limited solely to reviewing the project for compliance with the Zone’s overall strategic plan. HUD’s lack of participation in the funding process is fully consistent with the Memorandum of Agreement between HUD, New York State, and New York City, which does not provide HUD with such authority.
Nor does HUD or HHS have the ability to block ESDC from proceeding to withdraw the $5 million in question from the HHS draw-down account that contains the federal block grants awarded to the New York City Empowerment Zone. This is underscored by the fact that, as set forth in the sworn affidavit of an HHS officer who has worked with empowerment zones since 1993, ESDC is not even required to notify HHS of the purpose for which it draws down funds from these block grants. Indeed, it is undisputed that no federal agency has the ability to specifically block the expenditure of $5 million in federal funds for the East River Plaza project.
The plaintiffs suggest, however, that HUD still retains ultimate power over the $5 million in question — and therefore jurisdiction over the East River Plaza project— because of its ability to revoke the entire empowerment zone designation, and thereby take back the total remaining amount from the previously-awarded block grants. This argument cannot prevail because its underlying factual premise is inaccurate. It is certainly true that HUD has the power to revoke the empowerment zone designation altogether. But pursuant to both 26 U.S.C. § 1391(d)(2) and the Memorandum of Agreement among HUD, New York State, and New York City, HUD’s power to de-designate the New York City Empowerment Zone is very limited. It can do so only upon determining that (1) either the state or local government has modified the Zone’s boundaries; (2) either the state or local government is not complying substantially with the Zone’s strategic plan; or (3) either the state or local government has failed to make progress in achieving the benchmarks set forth in the Zone’s strategic plan.
None of these findings could be triggered by the results of a Section 106 review of the East River Plaza project, even if such a review concluded — contrary to the previous determination of New York State Office of Parks, Recreation, and Historic Preservation — that the East River Plaza project was likely to have a negative impact on surrounding historic resources. Such a finding would plainly have no bearing on whether Zone’s boundaries had been modified. More importantly, such a finding would likewise be irrelevant to an assessment of the Zone’s level of compliance and progress with its strategic plan. As detailed in 26 U.S.C. § 1391(f), an empowerment zone’s strategic plan addresses issues such as the involvement of local institutions and the community in the development of the geographic area, the extent to which poor individuals and family individuals will be empowered to become economically self-sufficient as a result of such development, and the like. The plaintiffs do not contend, and the record includes no evidence indicating, that the East River Plaza project itself has deviated from these considerations, let alone that the New York City Empowerment Zone as a whole has done so. On the contrary, the record indicates that funding for the East River Plaza project was approved by the relevant local and state organizations precisely because of the project’s potential to create numerous jobs in the community and to promote the physical revitalization of East Harlem. It is likely for this reason that, when engaging in its limited review of the project for compliance with the Zone’s strategic plan, HUD made no finding that the project was in any way inconsistent with that plan. The plaintiffs have not shown how any result from a Section 106 review of the East River Plaza project — a review that would exclusively assess the project’s likely impact on surrounding historic resources, a factor not included in the Congressional list of considerations relevant to an empowerment zone’s strategic plan, see 26 U.S.C. § 1391(f) — could bring about the de-designation of the entire New York City Empowerment Zone. We thus reject the argument that either HUD or HHS has sufficient jurisdiction over the East River Plaza project to trigger a Section 106 review of the project.
The plaintiffs alternatively argue that even if this Court finds that HUD and HHS lack sufficient jurisdiction over the project to trigger a Section 106 review, we should still deem such a review to be required under the regulations governing HHS block grants. They point out that under 45 C.F.R. § 96.30(a), the states must, “[ejxcept where otherwise required by Federal law or regulation,.. obligate and expend block grant funds in accordance with the laws and procedures applicable to the obligation and expenditure of its own funds” (emphasis added), and that when states in turn award at least $300,000 of such moneys to subgrantees, they are required under 45 C.F.R. § 96.31(b)(2) to ensure that the subgrantees are expending the funds in accordance with “applicable laws and regulations.” The plaintiffs contend that pursuant to these regulations, NYEZC and UMEZDC — in allocating $5 million in federal funds to the East River Plaza project — must themselves ensure that these moneys are expended in accordance with federal law, and that this obligation necessarily includes subjecting the project to the Section 106 review process.
This argument, however, assumes its conclusion: that a Section 106 review of this project is in fact required by federal law (namely, the NHPA). For the reasons set forth above, we have concluded that no federal agency has jurisdiction over the East River Plaza project, and that Section 106 of the NHPA is therefore inapplicable to the project. Therefore, it does not violate federal law for a Section 106 review of this project not to occur. Cf. Lee v. Thornburgh, 877 F.2d at 1057-58 (holding that because Section 106 applies only to federal agencies, it does not apply where Congress has appropriated federal funds directly). Accordingly, we are unpersuaded by the plaintiffs’ argument that these regulations somehow independently mandate a Section 106 review in the absence of a federal agency with jurisdiction over the project.
Finally, we note that our conclusion that Section 106 is inapplicable here is shared by the ACHP, the agency that is itself charged with overseeing the Section 106 review process. In its letter-brief to this Court, the ACHP concluded that an urban empowerment zone’s use of federal block grant funds in connection with individual projects does not trigger the requirements of Section 106, on the grounds that once an empowerment zone has been created and has received federal block grants, there is no federal involvement in the funding decisions for individual projects within the zone. This assessment — an agency opinion letter to which we owe respect under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) to the extent that it has the power to persuade, see Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) — accords with and provides further support for our conclusion.
III.
For the foregoing reasons, we hereby affirm the judgment of the district court granting summary judgment to the defendants.
. That estimate has since risen to at least $200 million.
. By the time the plaintiffs filed their suit, approximately 65% to 85% of the Factory had already been demolished.
. The district court's conversion of the motion into one for summary judgment was done on the basis that all parties had submitted and relied upon extensive materials outside of the Complaint. Neither side has challenged this conversion on appeal and we therefore do not address it here.
. In connection with the appeal, this Court requested and received a letter-brief from the Advisory Council on Historic Preservation (“ACHP”)-the agency that "issues regulations to implement section 106, provides guidance and advice on the application of the procedures of this part, and generally oversees the operation of the section 106 process,” 36 C.F.R. § 800.2(b)-on the issue of whether an urban empowerment zone’s use of block grant funds triggers a Section 106 review. We discuss this letter-brief infra.
. The Ninth Circuit recently held that Section 106 of the NHPA does not give rise to a private right of action and that such challenges must instead be brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 et. seq. San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir.2005).
. For unspecified reasons, although UMEZDC voted in favor of the $15 million loan to the East River Plaza project in October of 2001, and the NYEZC approved that loan one month letter, the loan still had not closed as of March 15, 2004. On that date, therefore, the UMEZDC Boarcbof Directors formally rescinded the commitment to make the loan. Accordingly, at present no Zone funds are officially committed to the project. At oral argument, however, counsel for UMEZDC advised this Court that UMEZDC was likely to re-approve the $15 million loan in question in the very near future, and that the loan may well again .be divided equally among federal, state, and city funds, such that $5 million in federal funds will again be slated to the project. This Court thus proceeds to address this issue on the merits.
. As of August 2003, approximately $57 million was estimated to remain in this draw-down account.
. In this letter-brief, the ACHP thus expressly rejected the conclusory statement contained in an earlier letter by an ACHP director to one of the plaintiffs that "the Empowerment Zone Program administered by [HUD] is subject to review under Section 106 since the use of Federal funds facilitates redevelopment activities.” We share the ACHP's conclusion that this earlier letter lacked a sufficient level of explanation or analysis to warrant deference.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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OPINION
N.R. SMITH, Circuit Judge:
The Supreme Court “has adopted what amounts to a two-tiered approach to analyzing state economic regulation under the Commerce Clause.” Broum-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 578-79, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986).
When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, [the Court has] generally struck down the statute without further inquiry.
When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, [the Court has] examined whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.
Id. at 579, 106 S.Ct. 2080 (citations omitted). Because the Alameda County Safe Drug Disposal Ordinance (the “Ordinance”) passes constitutional muster under this two-tiered approach, we affirm the district court.
FACTS
The facts are not in dispute. Alameda County (“Alameda”) passed the Ordinance in July of 2012. The Ordinance requires that prescription drug manufacturers, who either sell, offer for sale, or distribute “Covered Drugs” in Alameda, operate and finance a “Product Stewardship Program.” The term “Covered Drug” includes “all drugs in 21 U.S.C. § 321(g)(1) of the Federal Food, Drug and Cosmetic Act ... including both brand name and Generic Drugs.” To operate and finance a Product Stewardship Program, the manufacturers must provide for the collection, transportation, and disposal of any unwanted Covered Drug — no matter which manufacturer made the drug in question.
Facially, the Ordinance applies equally to both manufacturers located within Alameda and manufacturers located outside the county. While some manufacturers have their corporate offices or principal places of business in Alameda, all prescription drugs currently sold arrive in Alameda via inter-county or interstate commerce; even drugs manufactured in Alameda are shipped to other counties for packaging and then shipped back into Alameda. Alameda estimates that its total 2010 prescription drug retail sales were approximately $965 million and neither party asserts that sales have declined since then.
Pursuant to the Ordinance, manufacturers must set up disposal kiosk sites throughout Alameda. The kiosks will consist of disposal bins located in areas “convenient and adequate to serve the [disposal] needs of Alameda County residents.” Manufacturers must also promote the stewardship program to the public via “educational and outreach materials.” After collection, the prescription drugs must be destroyed at medical waste facilities.
The manufacturers are free to individually operate separate product stewardship programs or to jointly operate a program with one or more other manufacturers. If manufacturers choose to operate a program jointly, the Ordinance requires that the program’s costs be spread fairly and reasonably among the manufacturers. The manufacturers may run the stewardship program themselves, or they may pay a third-party to operate the stewardship program on their behalf. Assuming the manufacturers jointly operated a stewardship program, the start-up costs would approximate $1,100,000. Around $200,000 of the start-up costs consists of reimbursement to Alameda for the county’s costs to administer the Ordinance. While Plaintiffs estimate the subsequent annual costs to maintain the stewardship program to be around $1,200,000, Alameda estimates annual maintenance costs of only $330,000. However, both parties agreed this difference in estimates was immaterial for summary judgment purposes. Alameda estimates an annual cost of $200,000 per year to oversee the stewardship program and the Ordinance requires the manufacturers to reimburse Alameda for this cost. Using these numbers, Alameda estimates a total annual cost to each manufacturer between $5,300 and $12,000. Under the Ordinance, manufacturers may not implement a point-of-sale “tax” or fee to recoup the stewardship program’s administrative costs.
Plaintiffs, non-profit trade organizations representing the manufacturers and distributors of pharmaceutical products, claim that the Ordinance violates the dormant Commerce Clause by requiring interstate drug manufacturers to conduct and pay for Alameda County’s drug disposal program. The district court disagreed and granted Defendants’ motion for summary judgment.
STANDARD OF REVIEW
“We review de novo the district court’s grant of summary judgment.” Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 954 (9th Cir.2013).
DISCUSSION
The Commerce Clause dictates that “Congress shall have Power ... [t]o regulate Commerce ... among the several States.” U.S. Const, art. I, § 8, cl 3. “Though phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a ‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.” Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality of State of Or., 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). “The modern law of what has come to be called the dormant Commerce Clause is driven by concern about economic protectionism that is, regulatory measures designed to benefit instate economic interests by burdening out-of-state competitors.” Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 337-38, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008) (internal quotation marks omitted). We analyze dormant Commerce Clause claims using the Supreme Court’s two-tiered approach. See Brown-Forman, 476 U.S. at 578-79, 106 S.Ct. 2080.
I.
The first tier asks whether the Ordinance “either discriminates against or directly regulates interstate commerce.” Greater L.A Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 432 (9th Cir.2014). If the Ordinance does either of these things, “it violates the Commerce Clause per se, and we must strike it down without further inquiry.” NCAA v. Miller, 10 F.3d 633, 638 (9th Cir.1993). The Ordinance does neither.
A. Discrimination
A statute is discriminatory if it “impose[s] commercial barriers or discriminates against an article of commerce by reason of its origin or destination out of State.” C & A Carbone, Inc. v. Toum of Clarkstown, N.Y., 511 U.S. 383, 390, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). “Conversely, a statute that treats all private companies exactly the same does not discriminate against interstate commerce. This is so even when only out-of-state businesses are burdened because there are no comparable in-state businesses.” Assoc, des Eleveurs de Canards et d’Oies du Quebec v. Hams, 729 F.3d 937, 948 (9th Cir. 2013) (internal quotation marks, alteration, and citation omitted).
The Ordinance, both on its face and in effect, applies to all manufacturers that make their drugs available in Alameda County — without respect to the geographic location of the manufacturer. Even if one of the manufacturers represented by Plaintiffs were to close all of its production facilities, open a single production facility in Alameda County, and limit the sale of its products to intra-county commerce, the Ordinance would still apply to that manufacturer. In other words, the Ordinance does not discriminate, because it “treat[s] all private companies exactly the same.” See United Haulers Ass’n, Inc. v. Oneidar-Herkimer Solid Waste Mgmt. Auth, 550 U.S. 330, 342, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007).
Plaintiffs argue that the Ordinance is discriminatory, because “the real world effect of the Ordinance is indistinguishable from a tariff.” The Commerce Clause forbids the use of tariffs “[b]ecause of their distorting effects on the geography of production.” W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 193, 114 S.Ct. 2205, 129 L.Ed.2d 157 (1994). The evil of a tariff is that it “artificially encourag[es] instate production even when the same goods could be produced at lower cost in other States.” Id. Tariff-like statutes similarly provide distinct advantages to instate entities over out-of-state entities, so courts routinely strike them down. “[C]ases of this kind are legion.” Id. at 194, 114 S.Ct. 2205 (collecting cases).
However, unlike any of these statutes, an ordinance that applies across-the-board provides no geographic advantages. This holds true even where the ordinance only affects interstate commerce due to an absence of intrastate businesses. See Assoc, des Eleveurs, 729 F.3d at 948. Given that the Ordinance applies across the board, it does not discriminate at all, let alone in the same way as a tariff.
Plaintiffs also argue that the Ordinance discriminates against interstate commerce by shifting costs to counties and states outside of Alameda. As the Supreme Court has observed,
[o]ur dormant Commerce Clause cases often find discrimination when a State shifts costs of regulation to other States, because when “the burden of state regulation falls on the interests outside of the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected.”
United Haulers, 550 U.S. at 345, 127 S.Ct. 1786 (quoting S. Pac. Co. v. Ariz. ex rel. Sullivan, 325 U.S. 761, 767 n. 2, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945)). In United Haulers, the Supreme Court upheld a statute and noted that it “bears mentioning” that the cost of the ordinances “is likely to fall upon the very people who voted for the laws.” Id. It concluded that “[t]here [was] no reason to step in and hand local businesses a victory they could not obtain through the political process.” Id.
Plaintiffs’ political-restraints argument fails because, like in United Haulers, the Ordinance affects “interests within the [county].” Id. Even though all of the pharmaceutical drugs travel in interstate commerce before being sold in Alameda, three of Plaintiffs’ members have their corporate headquarters or principal place of business in Alameda and two of Plaintiffs’ members have facilities in Alameda that manufacture prescription drugs for commercial distribution.
Moreover, the cost of running the disposal program has not been entirely shifted outside of the county. Plaintiffs assert that the manufacturers will cover the cost of the Ordinance by raising the price of their drugs. This will result in higher prices for everyone outside of Alameda, but it will also result in higher prices for residents of Alameda. Given these facts, we are satisfied that the burden imposed by the Ordinance was sufficiently subjected to “those political restraints normally exerted when interests within the state are affected.” Id.
B. The Ordinance does not directly regulate interstate commerce.
“[A] statute violates the dormant Commerce Clause per se when it directly regulates interstate commerce.” Assoc, des Eleveurs, 729 F.3d at 949 (internal quotation marks omitted). “Direct regulation occurs when a state law directly affects transactions that take place across state lines or entirely outside of the state’s borders.” S.D. Myers, Inc. v. City and Cnty. of S.F., 253 F.3d 461, 467 (9th Cir. 2001) (internal quotation marks omitted). “The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State.” Healy v. Beer Institute, Inc., 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989).
Two stipulations of the parties reveal that the Ordinance does not “control conduct beyond the boundaries of the [county],” see id.:
8. Any person, manufacturer, or distributor that does not sell, offer for sale, or distribute prescription drugs in Alameda County is not required to undertake any action under the Ordinance.
9. Nothing in the Ordinance requires that [manufacturers] implement stewardship plans in any location or jurisdiction outside of Alameda County.
Unable to quarrel with these facts, Plaintiffs essentially assert four arguments as to how the Ordinance directly regulates interstate commerce.
First, Plaintiffs argue that the Ordinance “cannot be an exercise of the police power with an ‘incidental’ effect on interstate commerce, but is necessarily an effort to directly regulate and burden [interstate commerce].” The problem with Plaintiffs’ argument — aside from the fact that Plaintiffs cite not a single case to support this theory — is that it conflates the “direct regulation” doctrine and the second-tier, Pike balancing test, which asks whether the “State’s interest is legitimate,” Brown-Forman, 476 U.S. at 578-79, 106 S.Ct. 2080. Moreover, direct regulation of interstate commerce is more than the absence of a legitimate statutory purpose. Even assuming the State has no legitimate interest whatsoever in passing the Ordinance, it does not automatically follow that the Ordinance directly regulates interstate commerce.
Second, Plaintiffs argue that the Ordinance directly regulates interstate commerce, because “it regulates [manufacturers] whose only connection to Alameda is such interstate commerce.” However, there is nothing unusual or unconstitutional per se about a state or county regulating the in-state conduct of an out-of-state entity when the out-of-state entity chooses to engage the state or county through interstate commerce. Cf. Assoc, des Eleveurs, 729 F.3d at 948-49 (“A statute is not invalid merely because it affects in some way the flow of commerce between the States.” (internal quotation marks omitted)). For example, in Assoc, des Eleveurs, this court upheld a California statute that prohibited the sale of products that were the result of force feeding birds. Id. at 941-42. It did not matter that the practical effect of the statute was to regulate the conduct of farmers and producers that were “non-California entities” who chose to engage California through interstate commerce. Id. at 942, 950-51.
Plaintiffs suggest that the Ordinance is different, because it imposes an affirmative obligation. However, neither the Supreme Court nor this court has drawn such a distinction. See Pharm. Research, 538 U.S. at 668-69, 123 S.Ct. 1855 (rejecting a dormant commerce clause challenge to a Maine regulation that required drug manufacturers to enter into a rebate agreement with the state in order to compensate pharmacists for selling cheaper drugs); Greater L.A. Agency, 742 F.3d at 419, 432-33 (rejecting a dormant commerce clause challenge to a statute that “compelled] [CNN] to caption videos posted on its web site”).
Third, Plaintiffs argue that the Ordinance directly regulates interstate commerce, because it “shiftfs] the costs of Alameda’s disposal responsibility and local government program from the County’s consumers and taxpayers to the interstate market.” This rationale applies when determining whether a statute discriminates against, rather than directly regulates, interstate commerce. United Haulers, 550 U.S. at 345, 127 S.Ct. 1786. Accordingly, we addressed this argument above.
Fourth, Plaintiffs invite the panel to apply dormant Commerce Clause tax cases to the Ordinance. Specifically, Plaintiffs ask the panel to apply the “nexus” and “fairly apportioned” requirements. Plaintiffs cite no case, and we can find none, in which a court has applied the nexus and fairly apportioned requirements outside of the tax context. We decline the invitation to break this new legal ground.
II.
The second tier of a dormant commerce clause analysis has come to be known as the Pike balancing test. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). Under Pike, we ask whether “the burden [the Ordinance] imposes on interstate commerce is ‘clearly excessive in relation to the putative local benefits.’” See S.D. Myers, Inc., 253 F.3d at 471 (quoting Pike, 397 U.S. at 142, 90 S.Ct. 844). “We have explained that under Pike, a plaintiff must first show that the statute imposes a substantial burden before the court will determine whether the benefits of the challenged laws are illusory.” Assoc, des Eleveurs, 729 F.3d at 951-52 (internal quotation marks omitted). The analysis “turn[s] on the interstate flow of goods.” See Nat. Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1153 (9th Cir .2012).
A. Substantial Burden
The parties’ briefs provide minimal discussion as to the burden imposed by the Ordinance. The county compares the cost of running the disposal program ($530,000-$1,200,000 per year) to the manufacturers’ revenue-stream in Alameda County (approximately $950 million per year) to conclude that the burden is minimal. Plaintiffs’ merely state that “the County cannot dispute that the Ordinance imposes some burdens on [manufacturers] engaged in interstate commerce.”
Significantly, Plaintiffs provide no evidence that the Ordinance will interrupt, or even decrease, the “flow of goods ” into or out of Alameda. See id. Further, assuming the manufacturers comply with the Ordinance, they can continue to sell pharmaceutical drugs in Alameda. Cf. Assoc, des Eleveurs, 729 F.3d at 952 (finding Plaintiffs failed to raise serious questions about whether a statute imposed a substantial burden even though it would “preclude Plaintiffs’ ‘more profitable’ method of producing foie gras” (emphasis added)). Without any evidence that the Ordinance will affect the interstate flow of goods, we cannot say that the Ordinance substantially burdens interstate commerce.
B. Local Benefits
According to the joint-stipulation, “Plaintiffs agree that the Ordinance’s environmental, health, and safety benefits are not contested for purposes of the cross-motions for summary judgment.” And “regulations that touch upon safety ... are those that the [Supreme] Court has been most reluctant to invalidate. Indeed, if safety justifications are not illusory, the Court will not second-guess legislative judgment about their importance in comparison with related burdens on interstate commerce.” Kassel v. Consol. Freightways Corp. of Del, 450 U.S. 662, 670, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981) (internal quotation marks and citations omitted).
In an attempt to avoid this “strong presumption of validity” see id. (internal quotation marks omitted), Plaintiffs contend that the purpose of the Ordinance is merely to shift costs away from the county and onto the manufacturers. Plaintiffs reason that, because Alameda County could run a drug disposal program that “would achieve precisely the same effects” as the program mandated by the Ordinance, the Ordinance “yields no public benefits.” We reject this logic.
The fact that the county could run a similar program does not nullify the program’s benefits. For example, in Walsh, the Supreme Court rejected a dormant Commerce Clause challenge, despite the fact that Maine could have simply compensated the pharmacists itself rather than force drug manufacturers to do so. 538 U.S. at 654, 123 S.Ct. 1855. Moreover, even if the Ordinance did nothing other than save the county money, that is not equivalent to “no public benefits.” Cf. United Haulers, 550 U.S. at 346, 127 S.Ct. 1786 (“While revenue generation is not a local interest that can justify discrimination against interstate commerce, we think it is a cognizable benefit for purposes of the Pike test.” (internal quotation marks and citation omitted)).
CONCLUSION
The parties agree that the Alameda County Safe Drug Disposal Ordinance constitutes a “first-in-the-nation” ordinance. Opinions vary widely as to whether adoption of the Ordinance was a good idea. We leave that debate to other institutions and the public at large. We needed only to review the Ordinance and determine whether it violates the dormant Commerce Clause of the United States Constitution. We did; it does not.
AFFIRMED.
. The fact that the Ordinance exempts local pharmacies does not change the outcome, because no "actual or prospective competition” exists between the pharmacies and the manufacturers. See Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298, 299-300, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997) ("Conceptually, of course, any notion of discrimination assumes comparison of substantially similar entities.” (footnote omitted)).
. Under Assoc, des Eleveurs, the test articulated in Healy may not apply to the Ordinance at all. See Assoc, des Eleveurs, 729 F.3d at 951 ("Healy [does not apply] to a statute that does not dictate the price of a product and does not ‘t[ie] the price of its in-state products to out-of-state prices.'" (quoting Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 669, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003))). Assuming Healy does apply, the Ordinance withstands its scrutiny.
. Plaintiffs try to make this an argument about direct regulation by asserting that "this Court has squarely stated that a law has an impermissible 'direct burden’ on interstate commerce if, under the law, the locality 'would be able to shift the tax burden to out-of-state ... producers.’ ” See Nat’l Meat Ass’n v. Deukmejian, 743 F.2d 656, 661 (9th Cir. 1984). But that statement did not come from the court. The court was quoting the state's economic expert, who made the statement in support of upholding a state statute. 743 F.2d at 661. The only thing "this Court ... squarely stated" concerning that quotation is that it "is not controlling.” Id.
. To the extent that Plaintiffs argue that the panel must consider less burdensome alternatives, "case law requir[es] the consideration of less restrictive alternatives only when heightened scrutiny is required.” Nat. Ass’n of Optometrists, 682 F.3d at 1157. Because the Ordinance is not discriminatory and does not directly regulate interstate commerce, heightened scrutiny is not required. See id.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge MOTZ and Senior Judge YOUNG joined.
OPINION
MURNAGHAN, Circuit Judge:
The appeal before the court concerns South Carolina’s attempt to limit the amount of hazardous waste generated out-of-state and buried within its borders by promulgating a series of executive orders, statutes, and one regulation (collectively “the South Carolina laws”) which, as compared to treatment of waste generated within South Carolina, burden out-of-state waste. The discriminating state laws would impact the operations of three commercial hazardous waste facilities owned and operated by members of the ap-pellee-plaintiff Environmental Technologies Council (“ETC”). ETC filed a lawsuit challenging South Carolina’s laws under the Commerce Clause of the United States Constitution, art. I, § 8, cl.3, the Supremacy Clause, art. VI, cl. 2, and the Privileges and Immunities Clause, art. IV, § 2 el.l, and 42 U.S.C. § 1983 (1988). The question before the court on appeal is whether South Carolina’s laws violate the Commerce Clause.
We previously considered a motion by ETC for a preliminary injunction in this same lawsuit based on a Commerce Clause violation. Hazardous Waste Treatment Council v. State of South Carolina, 945 F.2d 781 (4th Cir.1991) (“HWTC”). While remanding to the district court, we, for the most part, affirmed the district court’s grant of a preliminary injunction in favor of ETC. On remand, the district court has granted summary judgment in favor of ETC, issuing a permanent injunction as to all the challenged provisions. Environmental Technologies Council v. South Carolina, 901 F.Supp. 1026 (D.S.C.1995) (“ETC”). South Carolina and several intervenors have appealed. For the following reasons, we affirm.
I
Disposing of hazardous wastes is a national problem which raises complex technological and political issues. South Carolina is one of few states which contain commercial hazardous waste treatment, storage, and disposal facilities. Thus, South Carolina absorbs a large amount of the hazardous waste that other states export.
South Carolina’s attempt to limit the level of out-of-state hazardous waste entering its borders occurs against a backdrop of congressional legislation addressing the national hazardous waste problem. Congress has enacted three sets of laws which are relevant here: (1) the Resource Conservation and Recovery Act of 1976 (“RCRA”), as amended, 42 U.S.C. §§ 6901-6992k (1988); (2) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended, 42 U.S.C. §§ 9601-75 (1988); and (3) the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. No. 99-499, 100 Stat. 1613 (1986). We briefly describe each law in so far as it is relevant to the question before us.
A. RCRA
RCRA establishes a cradle-to-grave regulatory program for hazardous waste management administered by the Environmental Protection Agency (“EPA”). It attempts to deal with hazardous waste before it becomes a problem by establishing minimum federal standards for the generation, treatment, storage, transportation, and disposal of hazardous waste, and the permitting of facilities to treat hazardous waste. HWTC, 945 F.2d at 783. RCRA also allows a state to implement its own program in lieu of the federal program if the state’s program is “equivalent to” and “consistent with” the federal or state programs applicable in other states and provides for “adequate enforcement of compliance.” 42 U.S.C. § 6926(b).
Congress delegated to EPA the task of reviewing and authorizing state programs as consistent with the federal program. The EPA’s regulation explaining how a state’s program must be consistent with the federal program is of particular relevance to the present controversy. It requires that a state program not unreasonably impede interstate commerce.
B. CERCLA and SARA
Passed by Congress in 1980, CERCLA establishes a cleanup program for hazardous waste which has already been disposed of improperly. CERCLA created a fund of federal money available for state cleanup efforts (“Superfund”).
Finding that more was still needed to address the hazardous waste problem, Congress amended CERCLA in 1986 by enacting SARA SARA requires that each state submit a proposal to EPA demonstrating that over a 20-year period the state will have either: (1) adequate capacity available to dispose of hazardous wastes generated within the state; or (2) arrange for the disposal of wastes generated in-state in other states through interregional agreements. 42 U.S.C. § 9604(c)(9) (1995). The required plans are referred to as Capacity Assurance Plans (“CAPs”). Failure to submit an acceptable CAP results in the state becoming ineligible to receive Superfund money for remedial cleanup of hazardous waste within the state. Congress promulgated no other sanctions or incentives for states to submit CAPs.
To obtain approval, a State program must be consistent with the Federal program and State programs applicable in other States and in particular must comply with the provisions below ...
(a) Any aspect of the State program which unreasonably restricts, impedes, or operates as a ban on the free movement across the State border of hazardous wastes from or to other States for treatment, storage, or disposal at facilities authorized to operate under the Federal or an approved State program shall be deemed inconsistent.
C. South Carolina’s Restrictions on the Interstate Flow of Hazardous Waste
Because South Carolina is one of the few states which has large existing hazardous waste treatment and disposal facilities, it contends that it has borne an unfair share of the national hazardous waste burden. As a result, South Carolina has attempted, through a series of measures, to reduce the amount of hazardous waste entering its borders. South Carolina’s legislature passed two statutes, its Governor signed two Executive Orders, and the South Carolina Department of Health and Environmental Control (“DHEC”) promulgated one regulation — all of which were designed to limit the level of out-of-state hazardous wastes entering South Carolina for burial within the state.
The first measure enacted was a blacklisting provision, prohibiting entry into the state of certain out-of-state wastes. Section 9 of Act No. 196 of 1989 prohibits “any person who owns or operates a waste treatment facility within” South Carolina from accepting
any hazardous waste generated in any jurisdiction which prohibits by law the treatment of that hazardous waste within that jurisdiction or which has not entered into an interstate or regional agreement for the safe treatment of hazardous waste pursuant to the federal [CERCLA].
The Act codified a prior executive order, No. 89-17.
The second measure, Act No. 590 of 1990, established a limit on all waste buried within the state. The limit reduces the existing statutory authorization for hazardous waste disposal by burial from 135,000 tons within the state in a year to 120,000 tons from July 1, 1990 to July 1, 1991. After July 1, 1991, the authorization drops to 110,000 tons per year. The limit on waste burial can be lifted, however, upon certification that the burial of more waste is necessary to protect the health and safety of the citizens of South Carolina or that 110,000 tons of the waste buried in South Carolina during the relevant time period was generated in South Carolina only.
The same Act also discriminates between waste generated in-state versus out-of-state by establishing a floor for in-state wastes and a ceiling for out-of-state wastes. All hazardous waste facilities must reserve for waste generated in-state at least the same capacity used during the previous year. On the other hand, no more hazardous waste may be buried from out-of-state than the amount buried in the previous year.
The third measure, executive order No. 89-25, promulgated on July 6, 1989, imposes quota preferences for in-state wastes. It requires instate facilities to reserve at least 54,000 tons per year of the then current statutory maximum of 135,000 tons for waste generated within South Carolina. It also limits the waste generated from any one state to 35,000 tons per year, and 10,000 tons per quarter.
The fourth and final measure, DHEC Regulation 61-99, effective January 12, 1990, imposes a needs requirement for all permits to establish or expand hazardous waste treatment and storage facilities. Need may be demonstrated by reference to only in-state need.
D. EPA’s Response
In 1985, EPA approved South Carolina’s hazardous waste program under RCRA despite the presence of a discriminatory fee imposed on waste generated out of state. 50 Fed.Reg. 46437 (1985); HWTC, 945 F.2d at 785 & n. 2. In 1989, EPA expressed concern that the blacklisting provision (Act No. 196 and Exec. Order No. 89-17) could render South Carolina’s hazardous waste management program inconsistent with RCRA. Thus, the EPA requested an opinion from the South Carolina Attorney General and certification by the state that the provision was consistent with RCRA. The South Carolina Attorney General responded with an opinion that the provision was “consistent.” The record contains no response by EPA or further EPA action.
Shortly thereafter, on October 17, 1989, South Carolina submitted to EPA its proposed CAP. EPA approved the CAP in May 1990, with certain conditions. That approval was granted in the context of an EPA policy of using the CAP process as its first step in addressing state actions which may be inconsistent with RCRA.
Subsequently, in 1995, EPA issued a notice that it had made a final decision, subject to public review and comment, that the agency intended to find that South Carolina’s hazardous waste program revisions satisfied all of the requirements necessary for final authorization under RCRA 60 Fed.Reg. 42046 (Aug. 15, 1995). While the notice does not directly address the provisions at issue here, the notice does indicate that the EPA continues to approve South Carolina’s hazardous waste program under RCRA.
II
We review the district court’s summary judgment ruling under a de novo standard of review. Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.1995); Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.1993). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate only where there are no genuine issues of material fact. In conducting our analysis, we review the record in the light most favorable to the nonmoving party.
South Carolina and the intervenors appeal on several grounds. First, South Carolina argues that the district court erred by applying a dormant Commerce Clause analysis because RCRA, CERCLA, and SARA override the dormant Commerce Clause, rendering the Clause inapplicable. Second, South Carolina asserts that even assuming a dormant Commerce Clause analysis applies, there were genuine issues of material fact and, therefore, summary judgment was premature. Third, South Carolina argues that even assuming its laws violate the dormant Commerce Clause, two portions of the laws-the overall limit on in-state waste burial and the needs requirement for new permits-are neutral nondiscriminating provisions and, therefore, should be severed from the invalid provisions and upheld. Finally, South Carolina argues that the district court should not have ruled, on the constitutionality of the laws, but instead referred the entire lawsuit to the EPA under the doctrine of primary jurisdiction. We address each argument in turn.
We caution at the beginning of our discussion that, as we recognized in our previous opinion in this case, "whatever our own view may be about the effectiveness of what Congress or [South Carolina] has done [and the seriousness of the hazardous waste management problem that plagues our nation], we can only apply the law." HWTC, 945 F.2d at 783 (citing National Solid Wastes Management Ass'n v. Alabama Dep't of Envtl. Management, 910 F.2d 713, 715-16 (11th Cir.1990), as modified upon denial of reh'g, 924 F.2d 1001 (11th Cir.1991), cert. denied, 501 U.S. 1206, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991)).
A. The Dormant Commerce Clause
The Commerce Clause provides that "[t]he Congress shall have Power [t]o regulate Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. Although "phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a `negative' aspect that denies the States the power unjustiflably to discriminate against or burden the interstate flow of articles of commerce." Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 511 U.S. 93, -, 114 S.Ct. 1345, 1349, 128 L.Ed.2d 13 (1994). Thus, with certain exceptions, the negative or dormant Commerce Clause prohibits states from discriminating against the free flow of interstate commerce.
Where Congress has acted in an area specifically authorizing state or local government action, the dormant Commerce Clause is, however, inapplicable, even if the state action interferes with interstate commerce. Northeast Bancorp, Inc. v. Board of Governors of the Fed. Reserve Sys., 472 U.s. 159, 174, 105 S.Ct. 2545, 2553-54, 86 L.Ed.2d 112 (1985); White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 213, 103 S.Ct. 1042, 1047, 75 L.Ed.2d 1 (1983). South Carolina contends that through enacting RCRA, CERCLA, and SARA, Congress created a federal scheme to address the disposal of hazardous wastes which authorized the state laws challenged here, thus displacing the dormant Commerce Clause.
In order for a state law to be removed from the reach of the dormant Commerce Clause, however, congressional intent to authorize the discriminating law must be either "unmistakably clear" or "expressly stated." South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91-92, 104 S.Ct. 2237, 2242-43, 81 L.Ed.2d 71 (1984). Congress need not state that it intends to override the dormant Commerce Clause, but it must affIrmatively have contemplated the otherwise invalid state legislation. Id.
South Carolina contends that Congress did just that on a number of levels. First, South Carolina insists that under RCRA, Congress has expressly authorized any state law or program addressing hazardous wastes which meets EPA's consistency standard of "reasonableness." 40 C.F.R. § 271.4. Second, South• Carolina argues that through delegating the authorization of state programs to the EPA under RCRA and CEROLA, Congress created a system of checkpoints for a state's hazardous waste program. South Carolina contends that by providing the checkpoints, Congress has “affirmatively” authorized the state laws because they are contained in an EPA-approved RCRA program and CAP. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 155, 102 S.Ct. 894, 910-11, 71 L.Ed.2d 21 (1982). Finally, South Carolina argues that the CAP requirement affirmatively contemplates and sanctions states discriminating against other states’ wastes. Regional agreements, South Carolina asserts, will require that states set aside capacity for states party to the agreement, thus necessitating discrimination among the states. Furthermore, South Carolina contends it must favor its own wastes in order to assure the capacity for in-state wastes it has demonstrated in its CAP.
We previously found at the preliminary injunction stage that RCRA, CERCLA, and SARA did not contain any language indicating “an unmistakably clear congressional intent to permit states to burden interstate commerce.” HWTC, 945 F.2d at 792. Neither South Carolina, nor the intervenors have come forward with any further persuasive evidence indicating that Congress intended to permit the states, directly or by EPA authorization, to engage in actions otherwise violative of the Commerce Clause. Id.
More specifically, we reject, as we did before, South Carolina’s argument that EPA’s reasonableness standard should displace a constitutional dormant Commerce Clause analysis. The EPA’s position on what constitutes “reasonableness” has changed over time. While EPA may change its position on what “consistency” entails, the Constitution has not changed and, in the absence of a clear Congressional statement authorizing discrimination by the states with respect to hazardous wastes, we must apply the Constitution’s dictates. See C & A Carbone, 511 U.S. at-, 114 S.Ct. at 1691-92 (O’Connor, J. concurring) (emphasizing high degree of specificity with which Congress must “explicitly” authorize state law otherwise violating the Commerce Clause).
We also find that Congress has not provided a series of checkpoints which authorize discrimination by South Carolina against other states’ hazardous wastes. South Carolina relies on Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982), for the proposition that a series of congressionally created checkpoints for a state’s law authorizes the state to discriminate against interstate commerce. The facts of Merrion, however, are distinguishable.
In Merrion, the Court upheld, in the face of a Commerce Clause challenge, a tax imposed by the Jicarilla Apache Indian Tribe on oil and gas extracted from tribal reservation land. The Court found that the Tribe had the power as an independent sovereignty to impose the tax. Id. at 136-52,102 S.Ct. at 901-10. The Court also noted that the tax would survive dormant Commerce Clause scrutiny, if applied, because Congress had displaced the Commerce Clause by providing a series of precise federal checkpoints that must be cleared before such a tax could be implemented. Id. at 154-56, 102 S.Ct. at 910-11. Congress required that under the Indian Reorganization Act, 25 U.S.C. §§ 476, 477, “a tribe ... obtain approval from the Secretary [of the Interior] before it adopts or revises its constitution to announce its intention to tax nonmembers.” Id. at 155, 102 S.Ct. at 911. Congress was also aware that Indian tribes impose taxes of the sort in question. Id. at 156, 102 S.Ct. at 911. Furthermore, the tax had been expressly approved by the Secretary through the checkpoints established for such taxes. Id. at 155-56, 102 S.Ct. at 910-11. Thus, Congress expressly authorized such taxes being implemented by Indian Tribes if approved by the Secretary of the Interior.
In contrast, here, one cannot say that Congress expressly contemplated or authorized violations of the dormant Commerce Clause by states limiting access to their hazardous waste facilities when it enacted RCRA, CERCLA, and SARA. Thus, no eongres-sionally established “checkpoints” expressly anticipate or authorize the challenged state laws. Furthermore, the EPA has not expressly approved any of the contested South Carolina laws.
We also reject South Carolina’s argument that the CAPs requirement contemplates and requires that South Carolina discriminate against out-of-state waste in order to assure capacity for its in-state waste and to fulfill its interregional agreements. In our prior opinion, HWTC, 945 F.2d at 794-95, we stated that CERCLA requires only
an “assurance” of twenty-year availability of arranged adequate capacity. It does not [require] that the state must ensure that hazardous waste actually is treated and disposed of either in-state or pursuant to an interstate or regional agreement. CERCLA § 104(c)(9) contemplates that adequate national capacity will exist if each state can assure that it has adequate ea-pacity for in-state generated waste after taking into consideration out-of-state waste that it has agreed to import and in-state waste that it has agreed to export. However, no part of § 104(c)(9) appears to permit or require a state to limit its actual in-state capacity to in-state waste to receive Superfund money. See OSWER Directive 9010.OOa at 4, 6. In fact, it appears that, if a state refuses to build in-state facilities or make alternate arrangements, it wifi be denied Superfund money, even if, in reality, all instate generated waste is safely exported. If congressional intent had been to subject citizens of recalcitrant states to environmental danger by barring export of otherwise untreated and undis-posed of hazardous waste, it could have been easily made clear: "A state not in compliance with this section may not export any waste." In the absence of such intent, we suspect that Congress believed the penalty of no access to federal Super-funds for waste cleanup would be sufficient.
South Carolina has not presented any evidence sufficient to dissuade us of our prior thinking. Furthermore, as the Eleventh Cir-cult noted in response to a similar argument, if the state's CAP depends on capacity provided by a commercial, privately owned management facility, the state can contract with that private facility for that capacity, instead of blocking the private facility from accepting wastes from other states. National Solid Wastes Management Ass'n, 910 F.2d at 720-21 (rejecting similar argument that SABA expressly authorized state law discriminating against out-of-state hazardous waste); Alabama v. EPA, 871 F.2d 1548, 1555 n. 3 (11th Cir.) (finding that Congress had not overridden Commerce Clause through enacting CERCLA), cert. denied, 493 U.S. 991, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989). Thus, we apply a dormant Commerce Clause analysis to South Carolina's laws.
B. Application of Do'rinant Commerce Clause
We apply a two-tiered analysis to state actions allegedly violating the dormant Commerce Clause. The first tier, "a virtually per se rule of invalidity," applies where a state law discriminates facially, in its practical effect, or in its purpose. Wyoming v. Oklahoma, 502 U.S. 437, 454-55, 112 S.Ct. 789, 800, 117 L.Ed.2d 1 (1992) (quoting City of Philadelphia, 437 U.S. at 624, 98 S.Ct. at 2535). In order for a law to survive such scrutiny, the state must prove that the discriminatory law "is demonstrably justified by a valid factor unrelated to economic protectionism," New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 274, 108 S.Ct. 1803, 1808, 100 L.Ed.2d 302 (1988), and that there are no "nondiscriminatory alternatives adequate to preserve the local interests at stake," Hunt, 504 U.S. at 342, 112 S.Ct. at 2014 (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 353, 97 S.Ct. 2434, 2446, 53 L.Ed.2d 383 (1977)). To date, the Supreme Court has upheld such discriminatory laws only where the discrimination was justified by the threat of death or disease. See, e.g., Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986) (upholding Maine's prohibition on importing live baitfish because of the potential for destruction of Maine's fisheries); Clason v. Indiana, 306 U.S. 439, 59 S.Ct. 609, 83 L.Ed. 858 (1939) (upholding Indiana's restrictions on transporting dead animals without a license because of the potential for disease).
The second tier applies if a statute regulates evenhandedly and only indirectly affects interstate commerce. In that case, the law is valid unless the burdens on commerce are "clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).
The line between the per se rule and the Pike balancing test is not clear. Nonetheless, most of the provisions at issue here are not close calls-they clearly discriminate against out-of-state waste either facially, in effect, or in purpose. The blacklisting provision, floor for in-state wastes, ceiling for out-of-state wastes, and quotas for out-of state and in-state wastes facially discriminate against out-of-state wastes by refusing admittance into South Carolina of certain wastes and giving express preference over South Carolina capacity to in-state wastes. Their effect, if implemented, would also clearly discriminate against out-of-state wastes. As for purpose, we have no reason to reverse the district court's finding that the laws in question constitute "an integrated and interconnected discriminatory program," ETC, 901 F.Supp. at 1029, whereby South Carolina has "attempted `to isolate itself from a problem common to [the nation] by erecting a barrier against the movement of interstate trade'," HWTC, 945 F.2d at 791 (quoting City of Philadelphia, 437 U.S. at 628, 98 S.Ct. at 2537-38).
A state cannot achieve a legitimate economic goal through "the illegitimate means of isolating the State from the national economy." Wyoming, 502 U.S. at 456-57, 112 S.Ct. at 801 (quoting City of Philadelphia, 437 U.S. at 627, 98 S.Ct. at 2537). The relevant economic unit is the nation, and the Commerce Clause prohibits states from bal-kanizing into separate economic units. H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-38, 69 S.Ct. 657, 664-65, 93 L.Ed. 865 (1949). Thus, South Carolina faces a heavy burden in justifying its discriminatory practices. To survive summary judgment, South Carolina must demonstrate issues of fact regarding whether the laws are justffied by a valid factor unrelated to economic protectionism and, if so, that there are no neutral alternatives available.
While South Carolina failed to articulate precisely its purpose in discriminating against out-of-state waste, the district court found several motivating concerns. The district court first found that South Carolina was motivated by the state's concern for the "health, safety, and welfare of its citizens." ETC, 901 F.Supp. at 1033-34. There is "no basis to distinguish out-of-state waste from domestic waste" over concern for citizens' health, safety, and welfare, however. Hazardous waste is equally dangerous whether generated within South Carolina or out-of-state. See Chemical Waste Management, 504 U.S. at 344-45, 112 S.Ct. at 2015-16 (holding that hazardous waste's danger to the health and safety of Alabama's citizens "does not vary with the point of origin of the waste"); HWTC, 945 F.2d at 792 (citing City of Philadelphia, 437 U.S. at 629, 98 S.Ct. at 2538).
The State's second concern was with preserving existing disposal capacity for waste generated within South Carolina. ETC, 901 F.Supp. at 1034. Natural resources, however, may not be hoarded under the Commerce Clause. "[A] State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders." City of Philadelphia, 437 U.S. at 627, 98 S.Ct. at 2537; see also New England Power Co. v. New Hampshire, 455 U.S. 331, 338, 102 S.Ct. 1096, 1100, 71 L.Ed.2d 188 (1982). Thus, "[t]he burden ... of conserving the State's remaining landfill space should not fall disproportionately on out-of-state interests." HWTC, 945 F.2d at 792 (citing City of Philadelphia, 437 U.S. at 628, 98 S.Ct. at 2537-38).
The third concern the district court found was South Carolina's worries about "transportation risks." ETC, 901 F.Supp. at 1034. Just as with the State's concern with health and safety, there is little to distinguish out-of-state waste from in-state waste in this regard. Furthermore, neutral alternatives exist for regulating transportation of all has-ardous waste regardless of origin. Chemical Waste Management, 504 U.S. at 345-46, 112 S.Ct. at 2015-16.
Finally, there was South Carolina's concern that it is shouldering an unfair burden of the nation's hazardous wastes. ETC, 901 F.Supp. at 1034. The Commerce Clause does not purport to require fairness among the states in interstate commerce. The "apparent Congressional intent of RCRA and SARA would seem" to be "that hazardous waste be treated and disposed of somewhere, even if spread disproportionately among the states." HTwC, 945 F.2d at 792.
On appeal, South Carolina reframes its purposes as: (1) complying with the CAP by guaranteeing capacity; and (2) addressing “orphan” wastes — hazardous waste from a state which prohibits its disposal and has failed to enter into a CAP for its disposal. As previously explained, the CAP requirement does not require or contemplate that a state discriminate against out-of-state waste in order to comply. Nor does the Commerce Clause allow states to punish other states for not disposing of their wastes through a CAP or otherwise. That task is left exclusively to Congress.
In briefing its appeal, South Carolina pointed to no specific issue of fact as to any potential purpose for discriminating against out-of state waste. Rather, the State merely argued that it is entitled to present evidence that it has no alternative but to differentiate among out-of-state wastes to protect its citizens’ health and safety and to comply with CERCLA.
At the summary judgment stage, South Carolina has a burden to demonstrate disputed issues of material fact. South Carolina has failed to meet its burden. None of the affidavits South Carolina submitted even purport to justify South Carolina’s discriminatory treatment of out-of-state wastes. ETC, 901 F.Supp. at 1030. Nor do any of the affidavits purport to demonstrate that no neutral alternatives exist to discrimination.
C. Limit on Waste Buried In-State and Needs Requirement
As for two portions of the South Carolina laws, it is not so obvious, however, that they discriminate either facially, in effect, or in purpose, such that the per se test applies. South Carolina therefore argues that even if we find that the dormant Commerce Clause applies and that the laws are invalid, portions of the laws — the overall limit imposed by Act No. 590 and the needs requirement imposed by DHEC regulation 61-99 — do not diseriminate against interstate commerce. Therefore, South Carolina contends, the valid portions should be severed from the invalid portions and remain in effect. We disagree.
1. Limit
An evenhanded cap or limit uniformly burdens both in-state and out-of-state interests. See, e.g., Chambers Medical Technologies of S.C. v. Bryant, 52 F.3d 1252, 1258 (4th Cir.1995). Thus, the Supreme Court has held that the dormant Commerce Clause allows a state to impose “an evenhanded cap on the total tonnage landfilled” with hazardous waste when it “curtailfs] volume from all sources.” Chemical Waste Management, 504 U.S. at 345, 112 S.Ct. at 2015. South Carolina contends that its reduction of the statutory authorization of 135,000 tons per year to 120,000 tons and then 110,000 tons is an evenhanded neutral limit that does not burden interstate commerce any more than intrastate commerce.
The limit South Carolina seeks to have upheld, however, is not as evenhanded and neutral as the state would have the court believe. The limit does not have the same effect on in-state as out-of-state wastes because the limit can be lifted upon certification that it is necessary to protect South Carolina’s citizens, S.C.Code Ann. § 44-56-60(a)(3)(A) (Law Co-op Supp.1995), or that the entire statutory authorization of buried waste during the relevant 12-month period was generated in South Carolina, S.C.Code Ann. § 44-56-60(a)(3)(B) (Law Co-op Supp. 1995). The same exceptions are not granted to out-of-state interests. The Supreme Court has declared that “[t]he commerce clause forbids discrimination, whether forthright or ingenious. In each case it is our duty to determine whether the statute under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce.” West Lynn Creamery, Inc. v. Healy, 512 U.S. 186,- -, 114 S.Ct. 2205, 2215-16, 129 L.Ed.2d 157 (1994) (citing Best & Co. v. Maxwell, 311 U.S. 454, 455-56, 61 S.Ct. 334, 334-35, 85 L.Ed. 275 (1940); Maryland v. Louisiana, 451 U.S. 725, 756, 101 S.Ct. 2114, 2134, 68 L.Ed.2d 576 (1981); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 147, 98 S.Ct. 2207, 2224-25, 57 L.Ed.2d 91 (1978)). Here, the exception favors in-state interests over out-of-state interests. Thus, the overall limit is not facially neutral, but rather discriminatory and, therefore, subject to the same per se test applied to the other discriminatory provisions of Act 590. The limit fails to survive such scrutiny for the same reasons that the floors and ceilings in Act 590 failed.
2. Needs Requirement
The needs regulation requires that a permit application for new or expanded hazardous waste facilities demonstrate need by reference to the level of waste generated in South Carolina only. South Carolina contends that the needs requirement is neutral, functioning similarly to an evenhanded cap and therefore valid. In our earlier opinion, we found that “[o]n its face [the needs requirement] appears not to regulate evenhandedly. It permits South Carolina to refuse to allow new construction if all of its waste can be disposed of by exportation. The ‘practical effect’ ... of the regulation may be to favor in-state interests over out-of-state interests.” HWTC, 945 F.2d at 791 n. 14 (citation omitted). Indeed, currently, the practical effect may be to establish a ban on building new capacity.
We find that the needs requirement is not similar to an evenhanded cap with the same effect on both in-state and out-of-state interests. The effect on out-of-state interests is to prohibit facilities from expanding to meet out-of-state needs, but to allow expansion to meet in-state needs. Thus, just as with the overall limit in question, the needs requirement contains an exception for in-state needs allowing expansion or a raise in the limit where in-state needs dictate such a rise. While the limit once imposed applies equally to out-of-state and in-state wastes, in effect, it guarantees in-state generators of waste space because the limit can always be raised in order to meet in-state needs.
Therefore, we apply the per se test to Regulation 61-99. The needs regulation does not survive the per se test for the same reasons the remainder of the challenged South Carolina laws failed to survive. South Carolina has raised no issue of fact as to a state rationale unrelated to the origin of the waste for its needs requirement.
D. Primary Jurisdiction
Finally, South Carolina attempts to persuade us that the district court erred by failing to defer under the doctrine of primary jurisdiction to the EPA in the first instance as to whether South Carolina’s laws are constitutional. “No fixed formula exists for applying the doctrine of primary jurisdiction.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). Generally speaking, the doctrine is designed to coordinate administrative and judicial decision-making by taking advantage of agency expertise and referring issues of fact not within the conventional experience of judges or cases which require the exercise of administrative discretion. Id.; Commonwealth of Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 992 (1st Cir.1995); Mashpee Tribe v. New Sear bury Corp., 592 F.2d 575, 580 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979), and cert. denied, 464 U.S. 866, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983).
The district judge refused to refer the instant lawsuit to the EPA under the doctrine of primary jurisdiction because he found that there were no issues of fact. Primary jurisdiction, he held, applied only to the referral of factual, not legal, issues. He further reasoned that the “constitutional issues ... [at stake were more] properly within the traditional purview of an Article III court, and are not those to which EPA could conceivably lend some degree of expertise.” ETC, 901 F.Supp. at 1029. We review the district court’s decision declining to refer the lawsuit to the EPA under the doctrine of primary jurisdiction for abuse of discretion. In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1162 (3d Cir.1993), cert. denied, 510 U.S. 1091, 114 S.Ct. 921, 127 L.Ed.2d 215 (1994).
The district court did not abuse its discretion. The EPA’s special expertise is not needed to decide a question of law in a constitutional matter.
Accordingly, the district court’s judgment is
AFFIRMED.
. ETC was formerly known as the Hazardous Waste Treatment Council (“HWTC”). ETC is a non-profit association of commercial firms that provide services for the treatment, recycling, and disposal of hazardous wastes.
. Because the district court addressed only the Commerce Clause question and our ruling on the Commerce Clause renders the challenged laws invalid, we do not reach the validity of the laws under the Supremacy Clause, Privileges and Immunities Clause, or 42 U.S.C. § 1983.
. We instructed the district court on remand “(1) to modify the order by striking the words that confusingly imply a declaration of invalidity, (2) to modify the order to apply only to the specific portions of the executive orders and statutes challenged as violating the Commerce Clause, and (3) to consider explicitly the balance of hardships with respect to Regulation 61-99." HWTC, 945 F.2d at 795.
. The Resource Conservation and Recovery Act of 1976 ("RCRA") defines "hazardous waste" as
a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may—
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903(5).
The increasing problem of disposing of solid wastes — hazardous and non-hazardous — is evidenced by the number of recent lawsuits involving states’ or localities' attempts to limit wastes entering their borders. See, e.g., C & A Carbone, Inc. v. Town of Clarkstown, New York, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994) (local solid waste flow control ordinance requiring all nonhazardous waste to be deposited at locally-owned facility); Oregon Waste Sys., Inc. v. Department of Envtl. Quality of Oregon, 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994) (Oregon statute imposing additional fee on solid waste generated outside the state and disposed of within the state); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Natural Resources, 504 U.S. 353, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992) (Michigan law prohibiting private landfill operators from accepting solid waste that originates outside county in which facilities are located unless specifically authorized by the receiving county’s plan); Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992) (Montana statute imposing additional fee on all hazardous waste generated out of state and disposed of within state); City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) (New Jersey statute prohibiting importation of most solid or liquid waste generated out of state); National Solid Wastes Management Ass’n v. Alabama Dep't of Envtl. Management, 910 F.2d 713 (11th Cir.1990), as modified upon denial of reh'g, 924 F.2d 1001 (11th Cir.), cert. denied, 501 U.S. 1206, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991) (Alabama statute blacklisting certain hazardous wastes generated out of state). In each case listed above a state or locality attempted to discriminate against waste generated out-of-state, and in each case the discriminatory action was ruled a violation of the Commerce Clause.
. 40 C.F.R. § 271.4. provides:
.42 U.S.C. § 9604(c) provides:
(9) Siting
Effective 3 years after October 17, 1986, the President shall not provide any remedial actions pursuant to this section unless the State in which the release occurs first enters into a contract or cooperative agreement with the President providing assurances deemed adequate by the President that the State will assure the availability of hazardous waste treatment or disposal facilities which—
(A)have adequate capacity for the destruction, treatment, or secure disposition of all hazardous wastes that are reasonably expected to be generated within the State during the 20-year period following the date of such contract or cooperative agreement and to be disposed of, treated, or destroyed,
(B) are within the State or outside the State in accordance with an interstate agreement or regional agreement or authority,
(C) are acceptable to the President, and
(D) are in compliance with the requirements of subtitle C of the Solid Waste Disposal Act.
. The court refers the reader to its prior opinion in this litigation, HWTC, 945 F.2d at 783-85, for further background on RCRA, CERCLA, and SARA.
. The limit is most often referred to as a cap. We have used the term “limit” here in order to prevent confusion between "cap" and the acronym for Capacity Assurance Plan, "CAP.”
. That fee is not challenged in the instant lawsuit.
. Memorandum from Lee M. Thomas to Regional Administrators, "Policy Regarding Hazardous Waste Management Capacity and RCRA Consistency Issues” (December 23, 1988).
. At oral argument, South Carolina asserted that the EPA 1995 RCRA approval specifically addressed one of the challenged provisions at 60 Fed.Reg. 42048, checklist item 17E. Checklist ítem 17E addresses the federal requirement for "location standards for salt domes, salt beds, underground mines and caves.” The federal RCRA regulations addressed were promulgated by EPA on July 15, 1985. The state authority to administer the federal requirements is found at South Carolina Code §§ 44-56-30, 44 — 56-60(a-c), and 44 — 56-120. We surmise that South Carolina is referring to § 44-56-60 as being specifl-cally authorized by EPA. Act No. 590 amended § 44-56-60 in 1990 to include the overall limit on waste disposed of by land burial, a ceiling on out-of-state waste, and a floor on in-state waste. From the information before the court, however, we do not presume that EPA specifically addressed and authorized the discriminatory provisions in question here, which were enacted in 1990 and not addressed specifically to the location standards for salt domes, salt beds, underground mines and caves. We do not view the EPA finding as to the particular federal regulation governing location standards for salt domes, salt beds, underground mines and caves as specifically addressing and authorizing the overall limit on hazardous waste burial and the ceilings and floors in question. Thus, based upon the record before the court, we disagree with South Carolina’s contention that EPA has specifically addressed and authorized some of the challenged provisions.
. The Commerce Clause applies to the interstate flow of hazardous waste. Chemical Waste Management, 504 U.S. at 340 n. 3, 112 S.Ct. at 2012 n. 3.
. The Supreme Court has not yet addressed this question. In Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992), the Supreme Court preter-mitted the issue raised by the amici curiae in that case of whether Congress had authorized a discriminatory fee Alabama imposed on out-of-state hazardous wastes disposed of at commercial facilities located in Alabama. Id. at 346 n. 9, 112 S.Ct. at 2016 n. 9. Applying the dormant Commerce Clause, the Supreme Court held that the discriminatory fee violated the Commerce Clause and declared the law unconstitutional. The Court refused to consider the question of whether the Commerce Clause did not apply at all because that issue had not been a basis for the lower court’s decision or briefed and argued by the parties.
. EPA has taken seemingly contradictory positions at different times on how it will apply and interpret the consistency requirement. In 1980, EPA adopted the approach taken in a then recent Supreme Court opinion, City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978), which applied the dormant Commerce Clause to strike down state statutes discriminating against out-of-state liquid or solid wastes. The Court’s approach rested on the premise that state regulations which discriminated facially, in effect or in purpose, were virtually per se invalid. City of Philadelphia, 437 U.S. at 624-27, 98 S.Ct. at 2535-37. Following that precedent, EPA pronounced that under its consistency regulation, § 271.4, any state program which “operates as a ban on the interstate movement of hazardous waste is automatically inconsistent.” HWTC, 945 F.2d at 793 (citing 45 Fed. Reg. 53395 (1980)).
In 1985, EPA “altered” its approach to the consistency requirement. That year, EPA ruled that under its consistency regulation, the agency would apply a "reasonableness” test to interstate commerce restrictions. HWTC, 945 F.2d at 794 (citing 50 Fed.Reg. 46439 (1985)). Thus, EPA announced that it did “not agree that any disparity in treatment between in-state and out-of-state wastes is per se unreasonable" seemingly abandoning its prior constitutional standard. Id.
.The instant case is distinguishable from the opinion on which South Carolina places a great deal of reliance, White v. Massachusetts Council of Constr. Employers, 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983), for its proposition that Congress has authorized the State's laws through RCRA and CERCLA. In White, the May- or of Boston, Massachusetts issued an executive order requiring all construction projects funded by the city to be performed by workers at least half of whom were bona fide residents of Boston. The order was challenged as violating the Commerce Clause. The Supreme Court upheld the Mayor's order, finding that Boston acted as a market participant in spending the city’s money. There is a well-settled exception to the dormant Commerce Clause for states or cities acting as market participants as opposed to government regulators of the market. Id. at 206-08, 103 S.Ct. at 1043-45. Additionally, the Court noted that although federal funds were also implicated, Congress had specifically contemplated and directed that those funds be used in a similar manner to the city's money: to stimulate economic recovery; to create permanent jobs; to retain jobs that would be lost; to provide jobs to lower income persons and minorities, including the unemployed; and to retrain workers. See, e.g., 42 U.S.C. §§ 3131, 5318. Furthermore, the regulations implementing Congress’s directives contained similar mandates, affirmatively permitting the type of parochial favoritism contained in the Mayor’s executive order. White, 460 U.S. at 213-14 n. 11, 103 S.Ct. at 1047 n. 11. Thus, the preference for local employment had been expressly contemplated and authorized by Congress. In contrast, here, Congress merely contemplated that state RCRA programs be consistent with the federal and other states' approved programs. Congress did not contemplate nor direct that state RCRA programs implement economic barriers to hazardous waste from other states. Nor do the EPA's regulations affirmatively and expressly authorize economic barriers to the interstate movement of hazardous wastes.
. The Court further concluded that the tax would survive Commerce Clause scrutiny because it did not discriminate against interstate commerce in violation of the Commerce Clause. Merrion, 455 U.S. at 156-58, 102 S.Ct. at 911-12. The tax had a substantial nexus with the taxing Tribe, was fairly apportioned, related to the services provided by the Tribe, and was nondiscrim-inatoiy because it was imposed on minerals sold on the reservation and minerals transported off the reservation before sale. Id.
. Even if EPA had expressly approved the laws in question, we could not do so without express congressional authorization.
. For example, the stated purpose of Act No. 196 (blacklisting provision) is to "give preference to hazardous waste generators within" South Carolina. Act No. 590 gives the same preference to hazardous waste generators within the state.
. South Carolina merely presents a series of affidavits that describe its hazardous waste program; the amount of wastes buried in state, broken down by in-state and out-of-state wastes; and similar statistics.
. South Carolina also contends that we expressly excluded the overall limit as one of the items properly enjoined in our previous opinion addressing the preliminary injunction. HWTC, 945 F.2d at 787 n. 9. While we referenced the statutory section containing the limit in our list of sections to be enjoined, we specifically referred to another subsection. Today, however, for the reasons set forth below, we clarify that the limit is included as one of the items that violates the Commerce Clause.
. Even if the limit were nondiscriminatory, it would not be severable. State law governs the severability of a state statute. Muller v. Curran, 889 F.2d 54, 57 (4th Cir.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1027 (1990). Thus, in determining whether the overall limit can be severed, we turn to South Carolina law. Under South Carolina law, "[t]he test for severability is whether the constitutional portion of the statute remains ‘complete in itself, wholly independent of that which is rejected, and is of such a character as that it may fairly be presumed that the Legislature would have passed it independent of that which is in conflict with the Constitution.' " Thayer v. South Carolina Tax Comm'n, 307 S.C. 6, 413 S.E.2d 810, 814-15 (1992) (citing Shumpert v. South Carolina Dep’t of Highways & Public Transp., 306 S.C. 64, 409 S.E.2d 771 (1991)) (footnote omitted).
We cannot fairly presume that the South Carolina legislature would have passed the overall limit without the provision allowing the limit's increase if South Carolina wastes exceeded the cap. Nor can we assume that the limit would have been passed without the remaining provisions of the statute, which include floors for instate-wastes and ceilings for out-of-state wastes. By protecting capacity for in-state interests, the legislature may have quelched in-state political interests that might otherwise have lobbied against the overall limit. Thus, we conclude that the limit provision is not severable.
. South Carolina’s reliance on Chambers Medical Technologies of South Carolina v. Bryant, 52 F.3d 1252 (4th Cir.1995), does not aid its cause. South Carolina seeks to establish that the needs regulation is similar to South Carolina's fluctuating cap for infectious waste based on the amount of waste generated in South Carolina alone. In Chambers, we held that the fluctuating cap for infectious waste might pass Commerce Clause scrutiny if it regulated in an evenhanded fashion and had only incidental effects on interstate commerce; whereas it would not be constitutional if it discriminated facially, in effect, or in purpose, thus necessitating that the per se test be applied. Id. at 1262. Here, the regulation discriminates in effect. Thus, the per se test applies.
Furthermore, significantly, we noted that the fluctuating cap in Chambers did not operate as a ban on the expansion of facilities. 52 F.3d at 1262. It merely limited the amount of infectious waste any one facility could process. While the South Carolina Code required that a permit be obtained in order to build a new facility and that infectious waste generated out-of-state could only be considered in the needs calculations with DHEC approval, the Chambers court assumed that the DHEC would not deny a permit on a basis violating the Commerce Clause. Id. at 1262 n. 15. Thus, in dicta, we suggested in Chambers that outright bans on expansion based on in-state needs only will most likely not survive dormant Commerce Clause scrutiny.
. As conceded in oral argument, however, South Carolina has not requested that the EPA intervene in this case as an amicus curiae, nor has the EPA sought intervention.
. South Carolina contends that the district court’s refusal to apply the doctrine of primary jurisdiction was based wholly on erroneous conclusions of laws and should therefore be reviewed de novo. "[D]espite what the term [primary jurisdiction] may imply, [it] does not speak to the jurisdictional power of the federal courts. It simply structures the proceedings as a matter of judicial discretion, so as to engender an orderly and sensible coordination of the work of agencies and courts.” In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d at 1162 (quoting United States v. Bessemer & Lake Erie R.R. Co., 717 F.2d 593, 599 (D.C.Cir.1983)). Thus, the decision not to refer a lawsuit to an agency under the doctrine of primary jurisdiction is a discretionary matter which we review for abuse of discretion. Furthermore, because the matter at issue is a constitutional question which lies within this court's expertise, the district court correctly applied the law.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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ALFRED T. GOODWIN, Circuit Judge:
National Forest Preservation Group (NFPG) challenges on procedural and substantive grounds the decision of the .Forest Service to exchange certain government land for lands of the intervenor, Burlington Northern.
The lands are in southwest Montana. The United States agreed, in three separate transactions, to exchange lands within the Gallatin National Forest for lands within and adjacent to the Forest and within Yellowstone National Park. A part of the lands being acquired by Burlington Northern are to be used by Big Sky of Montana, Inc., in a proposed recreational development in the area. Two of the exchanges are challenged in this appeal. We will refer to them as Exchange No. 2 and Exchange No. 3.
NFPG asserts that the exchanges are void because the Forest Service did not comply with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and with the Wilderness Act, 16 U.S.C. §§ 38, 1131, 1132, and that the exchanges exceed the statutory authority of the Forest Service.
Three preliminary issues are raised by the intervenors and the Justice Department.
I. STANDING
Burlington Northern urges that plaintiffs have no standing to bring this action. The plaintiffs have brought themselves within Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), by alleging that they are recreational users of the lands in question. Burlington Northern attempts to distinguish Sierra, Club by arguing that there will be no net loss of forest acreage in this case and that NFPG’s “selfish interest in preference in specially selected sections of land” is insufficient to confer standing. The Supreme Court indicated in Sierra Club, however, that precisely such intangible, subjective interests are sufficient to confer standing. 405 U.S. at 734, 92 S.Ct. 1361. The plaintiffs have standing.
II. MOOTNESS
The district court, 343 F.Supp. 696, granted the defendants summary judgment on May 23, 1972, and that same day refused NFPG’s request for an injunction pending appeal. Two days later, the government issued patents to the land to Burlington Northern. Immediately upon recording the patents, Burlington Northern conveyed to Big Sky certain of the contested tracts.
Under various legal headings, Burlington Northern (but not the Justice Department) urges that the speedy patent and sale of the lands from one party to the litigation to another during the pendency of the appeal placed the legality of the transfers beyond the jurisdiction of this court. Nonsense.
“* * * [ A] fter a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided * * Jones v. SEC, 298 U.S. 1, 17, 56 S.Ct. 654, 658, 80 L.Ed. 1015 (1936).
Porter v. Lee, 328 U.S. 246, 66 S.Ct. 1096, 90 L.Ed. 1199 (1946). See Griffin v. County School Board, 363 F.2d 206 (4th Cir.) (en banc) (school board held in civil contempt for disbursing money to private school pending appeal of judgment denying injunction against disbursement), cert. denied, 385 U.S. 960, 87 S.Ct. 395, 17 L.Ed.2d 305 (1966).
III. REVIEWABILITY — AGENCY DISCRETION
The defendants argue that the Secretary of Agriculture has broad discretion to decide whether to enter into a land exchange, and that all aspects of such exchanges are “committed to agency discretion” and therefore unreviewable under Administrative Procedure Act § 10 (a), 5 U.S.C. § 701(a). The second proposition, however, by no means follows from the first.
Although the basic decision whether or not to enter into an exchange may be nonreviewable, Lewis v. Hickel, 427 F.2d 673 (9th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 451, 27 L.Ed.2d 440 (1971), judicial review may be available on specific questions. East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524 (9th Cir. 1972); Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971). See Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv. L.Rev. 367 (1968).
In this ease NFPG contends that the agency did not comply with specific statutory limitations on its authority. There is clearly “law to apply” on the issues raised, and thus the allegations are reviewable. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
IV. THE ISSUES
Three purported issues are raised by NFPG: compliance with the Wilderness Act, 16 U.S.C. §§ 1131, 1132; compliance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq.; compliance with the statutes and regulations authorizing the exchanges. The Wilderness Act was not raised by NFPG in its administrative appeals; hence, we decline to consider it here. United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 438-439, 453 (9th Cir. 1971).
NFPG argues both that there has been noncompliance with specific requirements of the National Environmental Policy Act of 1969 and that the environmental-impact statements prepared were generally insufficient. Defendants, on the other hand, “doubt” whether any statement was required at all, apparently on the theory that the mere shuffling of titles could have no significant impact on the environment.
V. NEPA STATEMENT
We do not “doubt” that NEPA applies to this massive land exchange. While the federal defendants are not themselves planning to take action “significantly affecting the quality of the human environment,” 42 U.S.C. § 4332 (C), the private defendants .plan such action, and the exchange is an act without which such action could not be taken. The land exchange is thus analogous to the licensing of or granting of federal funds to a nonfederal entity to enable it to act. Such federal “enablement” has consistently been held to be subject to NEPA. Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971); Greene County Planning Board v. Federal Power Comm., 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). Nor would compliance with NEPA be excused by the ignorance of the federal authorities prior to the exchange of the plans the private party may have for the land he will receive. The short answer is that Congress has imposed an affirmative duty on the federal party to the exchange to receive assurances of the plans of the private developer prior to the exchange. See Public Land Law Review Comm’n, One Third of the Nation’s Land 266-67 (1970).
The NEPA statement on these exchanges was not prepared until after the decision of the Regional Forester approving the exchanges. When the decision of the Regional Forester was appealed, the Chief Forester refused to review the decision until an adequate environmental statement had been prepared. A statement was prepared and thereafter accompanied the proposed exchange through all levels of administrative consideration. Normally, an impact statement must be prepared prior to the initial decision to commit resources. 42 U.S.C. § 4332(B); Calvert Cliffs Coordinating. Comm., Inc. v. Atomic Energy Comm., 146 U.S.App.D.C. 33, 449 F.2d 1109, 1128 (1971).
Although proper timing was not followed in this case, we decline to remand on this ground. While the Regional Forester did not prepare a formal enviromental-impact statement, his written explanation of his decision to those who had expressed concern about the exchange shows that he did consider environmental factors. When the lack of a NEPA statement was called to the attention of the Chief Forester, he ordered one prepared. There has been no prejudicial failure to comply with NEPA, and the sterile exercise of having the Regional Forester consider the impact statement on an exchange which has already been approved by all levels of the administrative hierarchy would serve no useful purpose. See Calvert Cliffs Coordinating Comm. Inc. v. Atomic Energy Comm., 449 F.2d 1120.
The second specific deficiency NFPG urges on us is the failure of the NEPA statement to contain written comments from the Administrator of the Environmental Protection Agency (required by § 309 of the Clean Air Act, 42 U.S.C. § 1857h—7). However, the statement was duly submitted to the E.P.A. The Forest Service should not be penalized 'because the Administrator had nothing to say.
NFPG also attacks generally the sufficiency and completeness of the statement. However, although the statement, like most of its fellows, can be improved by hindsight and sophisticated editing, we believe that the statement satisfied the intent of the statute. Environmental Defense Fund v. Corps of Engineers, 342 F.Supp. 1211 (E.D.Ark. 1972), aff’d, 470 F.2d 289 (8th Cir. 1972).
VI STATUTORY AUTHORITY
A rather complex set of exchange authorities governs land exchanges in the area in and near Yellowstone Park. For his authority in carrying out all phases of these exchanges, the Secretary relied on the General Exchange Act of 1922, 16 U.S.C. § 485. NFPG argues that the Secretary did not comply with the conditions of the General Exchange Act. NFPG also contends that, with reference to Exchange No. 2, the Secretary should have used the exchange authority made applicable by statute to the lands within the boundaries of Yellowstone Park.
The General Exchange Act permits the Secretary of the Interior to “accept * * * title to any lands within the exterior boundaries of the national forests which, in the opinion of the Secretary of Agriculture, are chiefly valuable for national-forest purposes, and in exchange therefor may patent not to exceed an equal value of such national-forest land, in the same State, surveyed and nonmineral in character * * 16 U.S.C. § 485. The Act requires notice of the exchange to be published in a newspaper of general circulation for four successive weeks before the exchange is effected. In 1925 a provision was added to the General Exchange Act permitting either party to an exchange under that Act to reserve timber, minerals, or easements. Act of February 28, 1925, Pub.L.No.513, 43 Stat. 1090, codified as 16 U.S.C. § 486.
The General Exchange Act was an innovation; prior to that Act exchanges had been authorized on an individual bassis by special bills which often contained their own restrictions on the authority of the Secretary or the private exchanger. House Public Lands Committee, H.R. Rep.No.748, 67th Cong., 2d Sess. (1922). The previous pattern was reverted to in connection with a 1926 extension of the boundaries of Yellowstone Park to provide a winter range for elk. This special exchange authority was similar to the General Exchange Act, as amended, but contained no provision permitting the reservation of mineral or timber rights by the United States. Act of May 26, 1926, Pub.L. 295, §§ 2 and 3, 44 Stat. 655, 656, codified as 16 U.S.C. §§ 38, 39.
In 1929, the boundaries of Yellowstone Park again were extended. This extension did not contain a separate exchange authority, but provided that “the provisions of the Act of March 20, 1922 [General Exchange Act], as amended shall continue to be applicable to the areas included within the Yellowstone National Park by this Act.” Act of March 1, 1929, Pub.L.No.888, § 3, 45 Stat. 1436, codified as 16 U.S.C. § 21c.
NFPG attacks the sufficiency of compliance with these statutes in a number of particulars. First, it asserts that the “equal value” limitation was not complied with in either of the challenged exchanges because the agency’s appraisers improperly valued the land involved. However, the Secretary’s decision to accept those values is supported by substantial evidence. Accordingly, it is final.
Next, NFPG urges that because the General Exchange Act prevents the United States from conveying mineral land the Secretary had no authority to exchange lands under a reservation of mineral rights. However, one of the principal purposes of the 1925 addition to the Act was to legalize the administrative practice of conveying lands believed to contain minerals but reserving the rights thereto to the United States. H.R.Rep. 1176, 68th Cong., 2d Sess. (1925). A reservation is not a conveyance. The exchanges cannot be challenged on this score.
Finally, NFPG urges that the Forest Service violated the authorizing statutes and its own regulations by failing to itemize the lands in Exchange No. 2 according to the statutory authorities for that exchange.
The Forest Service Manual requires itemization, Forest Service Manual § 5431.4, but we need not decide whether a violation of the manual alone would invalidate an authorized exchange. The manual merely expresses the intent of the relevant statutes. Congressional intent was not satisfied here. It was therefore error to grant summary judgment with reference to Exchange No. 2 (the Yellowstone Park exchange).
The purpose of the General Exchange Act was to relieve Congress of the burden of considering new legislation every time an exchange authority was proposed for a federal tract. Against this burden was balanced the difficulty of making certain, without Congressional consideration of each exchange, that the terms of the exchange were responsive to local needs. To allay these fears, western Congressmen were careful to insert into the legislative history of the General Exchange Act the statement that “special provisions will not be changed by the passing of this * * * [Act].” 64 Cong.Rec. 3451 (remarks of Representative Raker of California), and the General Exchange Act itself provided the means for local interests to be notified of each exchange by newspaper notices “reciting the lands involved.” The obvious purpose of the notification procedure was to enable local persons opposed to an exchange to protest to the Secretary of the Interior and to their representatives in Washington.
The Act of May 26, 1926, extending the boundaries of Yellowstone Park, included its own exchange authority with its own equal-value limitation and with conditions more restrictive than those in the General Exchange Act as amended. We cannot assume that Congress acted inadvertently in providing this separate exchange authority for lands within Yellowstone National Park. We are therefore bound to give effect to specific Congressional restrictions.
The government in its brief on appeal urges that the “nonmineral” and “equal-value” limitations of the 1926 Act were in fact satisfied with respect to those portions of Exchange No. 2 involving lands within Yellowstone Park, and that the separate “equal-value” requirement of the General Exchange Act was satisfied with respect to the remaining portions of Exchange No. 2. They may have been, but the record does not show that they were. This question is one to be resolved by an evidentiary hearing in the district court. It cannot be resolved by summary judgment. Congress was careful to ensure, in both the 1926 and General Exchange Acts, that local objections, if any, were to be heard. In the proceedings below, the right to object was rendered meaningless by the failure of the Forest Service to indicate in its notices that part of the proposed exchange was to be carried out under the authority of the 1926 Act and part under the General Exchange Act.
We must, therefore, remand for further proceedings. NFPG has urged only that it be given an opportunity to present evidence of noncompliance with limitations in the exchange authorities either before the administrator or before the district court. Therefore, if the Secretary wishes, he may defend against NFPG’s charges in district court rather than repeat the entire administrative process as to Exchange No. 2. Upon remand, the court will first have to itemize the various tracts involved in Exchange No. 2 according to the various exchange statutes. It will then have to decide whether the “nonmineral”* and “equal-value” limitations of the 1926 Act have been complied with with respect to the lands exchanged pursuant to its authority, and whether the “equal-value” requirement of the General Exchange Act was satisfied with respect to the remaining lands.
After the cause had been argued and submitted, counsel for the appellants represented to this court that he had newly discovered evidence which might, in the interests of justice, require reopening the case in the district court with respect to both Exchange No. 2 and Exchange No. 3. In view of the necessity for a remand of this case, that matter can now be addressed to the district court.
Reversed and remanded for further proceedings.
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HOWARD, Circuit Judge.
The City of Pittsfield, Massachusetts asks us to consider whether the Environmental Appeals Board (EAB) improperly declined Pittsfield’s petition seeking the Board’s review of the Environmental Protection Agency’s (EPA) grant of a National Pollutant Discharge Elimination System (NPDES) permit for the Pittsfield Waste-water 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. We conclude that the Board did not abuse its discretion in so holding, and we therefore affirm its denial of Pitts-field’s petition.
I. Statutory and Regulatory Background
Congress enacted the CWA to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); see also Rhode Island v. EPA, 378 F.3d 19, 21 (1st Cir.2004) (discussing legislative purpose). The CWA makes it unlawful for any person to discharge pollutants into United States waters without an NPDES permit. 33 U.S.C. §§ 1311(a), 1342(a). NPDES permits typically place limits on the discharge of pollutants and establish monitoring and reporting requirements. See Arkansas v. Oklahoma, 503 U.S. 91, 101-02, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992) (citing pertinent statutory and regulatory provisions).
The EPA issues NPDES permits, except in those cases in which the agency has specifically authorized a state to administer its own NPDES program subject to EPA review. Massachusetts has not obtained such authorization, so our focus is on the EPA’s permitting procedures.
When the EPA receives a permit application, its regional administrator prepares a draft permit, which is then made available for public comment. 40 C.F.R. §§ 124.6, 124.10, 124.11. The administrator may also grant a public hearing during the public comment period. Id. § 124.11; 124.12(a). At the end of this process, the regional administrator issues a final permit decision, along with a written response to all significant comments raised during the public comment period. Id. § 124.15, 124.17(a). Any party that participated during the comment period then has thirty days to petition the EAB for review of the EPA’s decision. Id. § 124.19(a). Where, as here, the EAB denies review, the permit becomes administratively final. Id. § 124.19(c).
II. Factual and Procedural Background
The Pittsfield Water Treatment Plant discharges treated wastewater into the Housatonic River. Until 2005, Pittsfield operated the plant under an NPDES permit that the EPA had issued in 2000. In June 2005, six months before its existing permit was set to expire, Pittsfield timely filed an application for renewal of its permit. In December 2007, the EPA sent Pittsfield a copy of its draft permit, accompanied by a fact sheet explaining the permit limits and conditions.
The city submitted several comments during the comment period. Among them, it expressed concerns about the new permit’s stricter phosphorous, aluminum, E. coli and copper limits and noted that the permit appeared to place responsibility on Pittsfield to ensure that other towns contributing flow to the plant properly reported and managed their collection systems. The city also questioned new testing and reporting requirements.
On August 22, 2008, the EPA issued a final permit to Pittsfield and its co-permit-tees, along with a 37-page document addressing the comments the agency had received. The EPA explained that Section 301(b)(1)(C) of the CWA and federal regulations require it to limit any pollutant that it has determined “[is] or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to any excursion above any State water quality standard, including State narrative criteria for water quality.” 40 C.F.R. § 122.44(d)(l)(v). Based on the Housatonic River’s designation as a Class B water, a classification signifying suitability for habitation by fish and other wildlife and for swimming and boating, the EPA concluded that the new strict limits on the discharge of pollutants were correct, and it provided Pittsfield with a detailed explanation of its data sources and calculations.
The agency did make some changes to the draft permit based on the city’s comments, however. Noting Pittsfield’s history of compliance with discharge limits, the EPA granted the city’s request for a reduction in routine testing requirements. It also added new language clarifying that Pittsfield would not be responsible for the implementation of any of the permit’s terms and conditions to the extent that they applied to co-permittees.
On September 29, 2008, the city sought review of the final permit by the EAB, pursuant to 40 C.F.R. § 124.19(a). The city’s petition consisted of a one-page letter and a copy of the comments it had submitted during the public comment period on the draft permit. In its letter, Pitts-field asserted that the EPA had issued the draft permit as final “without any significant modification to address the City’s previously stated concerns,” and that the new permit’s limits and requirements were “unachievable by the City.”
The EAB denied Pittsfield’s petition for review. The EAB interpreted the regulation governing Board review, 40 C.F.R. § 124.19(a), to require that a petition for review demonstrate either that the EPA’s decision involved a clearly erroneous finding of fact or conclusion of law, or that the petitioner’s appeal raised an important policy consideration that the Board, in its discretion, should review. The Board concluded that Pittsfield had not met this burden and therefore had procedurally defaulted on its claim. The Board noted that the city had not specified which permit conditions it was challenging before the Board, nor had it explained why these limits were “unachievable,” let alone “clearly erroneous.” Pittsfield had also failed to identify any important policy consideration, the Board observed, that would “spur the Board to assume jurisdiction ... and review a 115-page record.”
The EPA’s permit decision became final when Pittsfield received notice that the Board had denied review. 40 C.F.R.
§ 124.19(f)(l)(I). The city then filed this appeal.
III. Discussion
The CWA gives us jurisdiction to review the EPA’s final federal permit decision, see 33 U.S.C. § 1369(b)(1)(F), and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, governs our standard of review. Under the APA, we may only overturn the Board’s procedural default ruling, as an agency action, if it was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Adams v. EPA, 38 F.3d 43, 49 (1st Cir.1994) (applying standard of review to review of the EPA’s issuance of a NPDES permit). Where, as here, the petitioner’s challenge to the agency’s action questions the agency’s construction of its own regulations, our review is “particularly deferential.” Davis v. Latschar, 202 F.3d 359, 364-65 (D.C.Cir.2000); see also Pan Am. Grain Mfg. Co. v. EPA, 95 F.3d 101, 103 (1st Cir.1996) (observing that our degree of deference in reviewing a final EPA action “is magnified when the agency interprets its own regulations”). Indeed, we must give “controlling weight” to the agency’s interpretation “unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945).
A. The EAB’s interpretation of 40 C.F.R. § 124.19(a)
Pittsfield’s principal argument is that the Board’s interpretation of 40 C.F.R. § 124.19(a) was plainly erroneous and thus its denial of Pittsfield’s petition should be set aside as an abuse of discretion. In relevant part, the regulation states:
The petition shall include a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations and ivhen appropriate, a showing that the condition in question is based on:
(1) A finding of fact or conclusion of law which is clearly erroneous, or
(2) An exercise of discretion or an important policy consideration which the Environmental Appeals Board should, in its discretion, review.
(emphasis added).
As in this case, the EAB has consistently interpreted the regulation as requiring that the petitioner set forth an argument in its petition as to why the permit condition it is challenging is either based on a clearly erroneous finding of fact or conclusion of law or raises an important policy consideration. See, e.g., In re Chukchansi Gold Resort and Casino Waste Water Treatment Plant, NPDES Appeal Nos. 08-02 to -05, slip op. at 9 (EAB Jan. 14, 2009), 14 E.A.D.-, 2009 WL 152741; In re City of Irving, Mun. Separate Storm Sewer Sys., 10 E.A.D. 111, 122, 2001 WL 988723 (EAB 2001). Additionally, the Board has repeatedly stated that the petitioner must explain why the challenged conditions merit review. See, e.g., In re Avon Custom Mixing Servs., Inc., 10 E.A.D. 700, 708, 2002 WL 2005529 (EAB 2002) (“We have held in the past that to warrant review, allegations must be specific and substantiated.”); In re New England Plating Co., 9 E.A.D. 726, 737, 2001 WL 328213 (EAB 2001) (“The Petitioner must not only identify disputed issues but demonstrate the specific reasons why review is appropriate.”) (emphasis in original); In re Terra Energy Ltd., 4 E.A.D. 159, 161, 1992 WL 373462 (EAB 1992).
Based on these principles, the Board has refused to grant review to petitioners who have merely reiterated or attached comments they had previously submitted regarding the draft permit, without engaging the EPA’s responses to those comments. See, e.g., In re Peabody W. Coal Co., 12 E.A.D. 22, 33, 2005 WL 428833 (EAB 2005); In re Tech Comineo Alaska Inc., 11 E.A.D. 457, 472-73, 2004 WL 1658594 (EAB 2004); In re City of Irving, 10 E.A.D. 111, 129, 2001 WL 988723 (EAB 2001). The Sixth Circuit has upheld this standard. See Mich. Dep’t of Envtl. Quality v. EPA, 318 F.3d 705, 708 (6th Cir. 2003) (noting that the petitioner “simply repackaged its comments and the EPA’s response as unmediated appendices to its petition to the Board” and holding that such “does not satisfy the burden of showing entitlement to review”).
In arguing that the Board’s interpretation was in error, Pittsfield relies exclusively on 40 C.F.R. § 124.19(a)’s instruction that petitioners show that the challenged conditions are based on clearly erroneous findings of facts or conclusions of law, or raise important policy considerations “when appropriate.” The city contends that under a plain reading of the regulation, the use of the phrase “when appropriate” signifies that the inclusion of this information is permissive, rather than mandatory.
Section 124.19(a) is admittedly not the most pellucid of regulations, and there are other meanings that the EPA could have ascribed to the “when appropriate” language. The agency has chosen to read the language as requiring that the petitioner show that the conditions it is challenging were based on either an erroneous finding of fact or law or an abuse of discretion, whichever is “appropriate.” While this is not the only possible reading of the phrase, it is a reasonable one, and we cannot say that it is “plainly erroneous.” To the extent that we would have reached a different interpretation, we may not “substitute [our] judgment for that of the agency.” Adams v. EPA, 38 F.3d at 49. Moreover, this interpretation is consistent with the regulation’s preamble, which instructs that the Board’s power of review “should only be sparingly exercised,” and that “most permit conditions should be finally interpreted at the Regional level....” 45 Fed. Reg. 33, 412 (May 19, 1980).
Pittsfield’s interpretation, on the other hand — that the phrase “when appropriate” renders the aforementioned showings entirely permissive' — is untenable. The requirement that petitioners make one of the two enumerated showings “when appropriate” cannot sensibly mean that petitioners never have to make such a showing at all. Adopting this position would also, by obligating the Board to grant review in a wide swath of cases, appear to undermine the EPA’s intent in adopting the regulation.
There is another problem with Pitts-field’s interpretation. The city seems to suggest that a petitioner can satisfy 40 C.F.R. § 124.19(a) merely by stating that the EPA had not made significant modifications to the draft permit and attaching its previous comments. Without even the most minimal guidance as to the specific issues the petitioner was disputing, the burden would fall to the EAB to sift through an often lengthy record in each case to determine whether review was merited. We have long warned litigators that it is not the obligation of federal courts to “ferret out and articulate the record evidence considered material to each legal theory advanced on appeal.” Conto v. Concord Hosp., Inc., 265 F.3d 79, 81 (1st Cir.2001). Nor have we been presented with a reason why a similar responsibility should fall to the EAB.
Pittsfield asserts that granting review of its petition would not require the EAB to scour the record because the EPA was already aware of the city’s concerns. It claims that evidence of the EPA’s knowledge can be found in a notice that the EAB sent to Pittsfield in December 2008, acknowledging that it had received Pitts-field’s petition for review and listing the various permit limitations and conditions that Pittsfield had contested. But that notice simply regurgitated Pittsfield’s attached comments to the draft permit, including conditions the EPA revised in the final permit, and does not establish that the EPA was aware of Pittsfield’s specific challenges on review.
The city made no effort in its petition to the Board to engage the EPA’s initial response to its draft comments. As the EAB noted, Pittsfield did not explain why the permit limits would be “unachievable.” In insinuating that the permit’s limits would create an “enormous financial burden to the users of the wastewater system,” the city did not mention whether it had considered the EPA’s response that the agency was obligated to base permit limits on achieving water quality standards and could not consider cost or rate impacts. Nor did it address the EPA’s suggestion that Pittsfield request that the state remove the designated use associated with the more stringent permit levels if attaining the use were not feasible, pursuant to 40 C.F.R. § 131.10(g).
Additionally, even assuming that the EAB could identify Pittsfield’s particular challenges to the final permit’s discharge limits, the city did not explain why it disagreed with either the EPA’s calculations of those limits or the data on which the EPA relied in reaching them. It was Pittsfield’s burden to present this argument in its petition for review, particularly in light of the great deference the EAB affords to the review of technically or scientifically-based issues. See In re Carlota Copper Co., 11 E.A.D. 692, 708, 2004 WL 3214473 (EAB 2004) (“[A] petitioner seeking review of issues that are technical in nature bears a heavy burden because the Board generally defers to the Region on questions of technical judgment.”).
For the aforementioned reasons, we cannot conclude that the EAB’s determination that Pittsfield had procedurally defaulted on its claim under 40 C.F.R. § 124.19(a) was unreasonable or plainly erroneous.
B. The Applicability of the Substantial Evidence Test
Pittsfield lodges a second argument that the denial of its petition for review was improper. It claims that the EAB improperly ignored “information developed in the normal course of the permit development process” in reaching its conclusion. The city invites us to review the entire factual record of the case, including information gathered during the draft comment period, under the substantial evidence standard. Pittsfield cites our decision in Penobscot Air Services, Ltd. v. FAA for the proposition that our standard of review should be to determine “whether on this record it would have been possible for a reasonable jury to reach the [agency’s] conclusion.” 164 F.3d 713, 718 (1st Cir.1999).
We decline the invitation, as the city’s interpretation would import a standard of review that is not relevant here. As we have noted above, 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. Mich. Dep’t of Envtl. Quality, 318 F.3d at 707.
Pittsfield’s reliance on Penobscot Air Services, Ltd. to 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.” 164 F.3d at 718 (citing 49 U.S.C. § 46110(c)). 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. Id. at 719.
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 fact-finding, 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.
IV. Conclusion
For the foregoing reasons, we deny the petition for review.
. The CWA is codified at 33 U.S.C. §§ 1251— 1376.
. In EPA Region 1, the region charged with enforcing the agency’s environmental laws in New England, the authority of the Regional Administrator to issue NPDES permits has been delegated to the Director of the Office of Ecosystem Protection pursuant to Regional Delegation 2-20. For ease of exposition, and because it makes no difference in our analysis, we continue to use the term “regional administrator” here.
. The EPA named as co-permittees four other towns, Dalton, Lenox, Hinsdale and Lanes-borough, that each contribute flow to the plant through their own wastewater collection systems.
. The EPA later determined that the final permit's copper discharge limitations were erroneously calculated and withdrew them pursuant to 40 C.F.R. § 124.19(d). It announced its intent to issue less stringent copper limitations after a second public comment period.
. Indeed, the Board remarked, it had no way of discerning from the city’s "wholesale, undifferentiated permit appeal” whether the city's objection extended to the conditions the EPA had already addressed and modified after the public comment period.
. There are other readings of "when appropriate" on which the EPA plausibly could have relied to support the grounds for its denial of review in this case. For example, the agency conceivably could have used the phrase to emphasize that petitioners should only endeavor to make such a showing if they have a colorable claim. It could also have intended to refer to cases in which the petitioner cannot make either of the required showings to gain Board review, but nevertheless files a petition in order to preserve its ability to appeal the agency's decision in federal court on some other basis. As the EPA does not raise these possible interpretations, we need not explore them further here.
. It is possible that Pittsfield’s petition would also fail because it did not meet 40 C.F.R. § 124.19(a)’s requirement that petitioners "include a statement of the reasons supporting ... review.” Neither party addresses this language of the regulation, however, so we do not consider the argument here.
. Moreover, even if there were clear evidence of the EPA's knowledge, the regulation does not indicate that this knowledge would exempt the city from meeting its procedural requirements.
. We need not reach the city's claim that the EAB improperly refused to follow the procedural mandates imposed by 40 C.F.R. § 124.19(a), as we conclude that the EAB's interpretation of the regulation was reasonable.
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OPINION OF THE COURT
BARRY, Circuit Judge.
In July and August 2005, appellants, a number of conservation groups, petitioned the U.S. Fish and Wildlife Service (“FWS”) to list as endangered on an emergency basis the red knot, a species of migratory shorebird. The FWS declined to undertake emergency rulemaking by letter of December 22, 2005, but continued to review the petition in the context of a non-emergency. On June 13, 2006, before the FWS made a final determination, appellants filed a complaint in the U.S. District Court for the District of New Jersey claiming (1) that the denial of emergency rulemaking was arbitrary and capricious, in violation of the Endangered Species Act (“ESA”), and (2) that the FWS violated the ESA by failing to issue timely findings on the petition. The FWS issued its final determination — that the listing of the red knot was warranted but precluded by higher-priority listing activity — in its periodic Candidate Notice of Review (“CNOR”) published on September 12, 2006. In response, appellants dismissed their timeliness claim, but persisted with their challenge to the denial of emergency rulemaking. In an opinion and order dated October 11, 2007, the District Court dismissed the complaint for lack of subject matter jurisdiction, finding that the FW S’s denial of the emergency listing request was not reviewable under either the ESA or the Administrative Procedure Act (“APA”). Given this finding, the District Court did not find it necessary to reach the FWS’s claim that the publication of the warranted but precluded listing determination in the CNOR rendered moot appellants’ challenge to the denial of emergency rulemaking. This appeal followed.
I.
A. The Red Knot
The red knot (Calidris canutus rufa) is a medium-sized shorebird that undertakes an annual 30,000-kilometer migration from its wintering grounds in Patagonia and Tierra del Fuego to its breeding grounds in the high Arctic. Red knots begin their northern migration in February, with peak numbers leaving Argentina and Chile between mid-March and mid-April. As part of their northward migration, red knots stop over in the Delaware Bay between late April and early June, coinciding with the spawning season of horseshoe crabs. There, the birds feed on horseshoe crab eggs in order to refuel for the final leg of their journey to the Arctic.
Surveys of the Delaware Bay region during recent spring migration seasons indicate a substantial decline in the red knot population. It is believed that the reduction in numbers is in large part attributable to the overharvesting of horseshoe crabs for commercial purposes. Because of the corresponding drop in the quantity of horseshoe crab eggs, red knots have failed to attain the critical weight necessary to fly to their breeding grounds and survive an initial few days of Arctic snow cover. Since 1999, regional and state conservation authorities have adopted a series of timing restrictions and substantially lower harvest quotas for horseshoe crab harvesting. Nevertheless, the number of red knots observed in the Delaware Bay has dwindled to approximately 14,000 in recent years, down from highs of approximately 95,000.
B. The Listing Petitions and Agency Response
The ESA provides a mechanism by which interested persons may petition the Secretary of the Interior for the listing of species as either endangered or threatened. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(a). In the normal course, upon receipt of a petition, the FWS has 90 days to make a finding as to whether the petition presents substantial information indicating that the petitioned action may be warranted. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(b). If the FWS concludes that the action may be warranted, then within 12 months after receiving the petition, it must make one of the following findings: (1) that the action is not warranted; (2) that the action is warranted; or (3) that the action is “warranted but precluded” by other higher priority listing actions. 16 U.S.C. § 1533(b)(3)(B); 50 C.F.R. § 424.14(b)(3).
In addition to the normal listing mechanism, the FWS is also authorized to list a species immediately in case of an “emergency posing a significant risk to the well-being of [that] species.” 16 U.S.C. § 1533(b)(7). It is the position of the FWS, a position with which the District Court agreed, that this emergency provision is committed solely to the discretion of the FWS and is not reviewable under the so-called discretion exemption to the APA, 5 U.S.C. § 701(a)(2).
In July and August 2005, appellants petitioned the FWS to list the red knot as endangered on an emergency basis. In December, the FWS replied in a two-page letter, which stated, in part:
While we have not made a decision on whether the petition presents substantial information that the petitioned action may be warranted, we have looked at the immediacy of possible threats to the species to determine if emergency listing may be warranted at this time. Our initial review of your petition, and the information within our files, does not indicate that an emergency situation exists.
(App.153.) The letter also explained that several regional and state protection measures were already in place and that observed conditions during the 2005 stopover indicated a slight increase in the number of red knots. The FWS did not rule out the possibility of future listing activity, indicating that it would “review the petition in the context of a non-emergency, through [its] petition process.” (App.154.) It anticipated making its already-belated 90-day finding in early 2006.
Before hearing again from the FWS regarding the red knot, appellants filed this action in the District Court, claiming, as noted above, that (1) the decision not to list the red knot on an emergency basis was arbitrary and capricious, and (2) the FWS failed to meet its response deadlines set forth in 16 U.S.C. § 1533(b)(3)(A) and (B).
Three months later, the FWS formally responded to the petition when, on September 12, 2006, it published its CNOR in the Federal Register. See Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 71 Fed.Reg. 53,756 (Sept. 12, 2006) (to be codified at 50 C.F.R. pt. 17). The CNOR concluded that
the threats, in particular the modification of habitat through harvesting of horseshoe crabs to such an extent that it puts the viability of the knot at substantial risk, are of a high magnitude, but are nonimminent because of reductions and restrictions on harvesting horseshoe crabs.
Id. at 53,759. Accordingly, the FWS designated the listing of the red knot as warranted but precluded pursuant to 16 U.S.C. § 1533(b)(3)(B)(iii), and assigned the species a priority level of 6 on a scale of 1 to 12 (1 being the highest priority). Id.
Following publication of the CNOR, appellants voluntarily dismissed their claim pertaining to the FWS’s failure to abide by the response deadlines but did not seek leave to amend their complaint in order to challenge the warranted but precluded finding set forth in the CNOR. Thus, the only remaining claim before the District Court was that the denial of an emergency listing in December 2005 was arbitrary and capricious. As noted above, the District Court concluded that the challenged action fell within the “discretion” exception to the APA, 5 U.S.C. § 701(a)(2), and dismissed appellants’ claim as unreviewable.
II.
The FWS argues that the District Court correctly concluded that appellants’ claim was unreviewable and that any challenge to the denial of emergency rulemaking was rendered moot by the publication of the warranted but precluded listing in the CNOR. Although the District Court did not reach the issue of mootness, we will address it as a threshold matter as it implicates our jurisdiction. See Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir.2003) (citing Rogin v. Bensalem Twp., 616 F.2d 680, 684 (3d Cir.1980)).
The mootness doctrine derives from Article III of the Constitution, which limits the “judicial Power” of the United States to the adjudication of “Cases” or “Controversies.” U.S. Const, art. Ill, § 2; see Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir.2007). “[T]he central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” In re Surrick, 338 F.3d 224, 230 (3d Cir.2003).
The only issue remaining in the complaint once the timeliness claim was dismissed was the propriety of the FWS’s determination that an emergency listing of the red knot was not warranted. In the subsequent publication of the CNOR, however, the FWS concluded, after careful study and consideration of all possible factors, that listing of the red knot was, in fact, warranted but precluded by other listing priorities. Because appellants never sought to amend their complaint to contest in any way that conclusion, there is no issue for us to decide and no “meaningful relief’ to award.
Appellants would have us reach back from the CNOR and declare the FW S’s denial of emergency rulemaking violative of the ESA based on the FWS’s consideration of what appellants allege to be improper factors. We will not do so. Instructive in this regard is Fund for Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C.Cir.2005), in which the D.C. Circuit observed that “[t]his sequence of events is analogous to the merger of a preliminary injunction into a permanent injunction, upon which ‘an appeal from the grant of [the] preliminary injunction becomes moot.’ ” 428 F.3d at 1064 (quoting Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999)) (second alteration in original); see also Save Our Springs Alliance v. Norton, 361 F.Supp.2d 643, 648 (WD.Tex.2005) (holding that a 90-day finding stating there was no emergency mooted the plaintiffs challenge for failure to make an emergency listing determination in its earlier letter). The December 2005 letter was never meant to be anything but an interlocutory pronouncement that circumstances did not warrant emergency attention; the FWS specifically noted that a final listing determination would be postponed in favor of additional, in-depth review, which review, when completed, was not challenged.
We note, as we conclude, that appellants have received quite substantial relief. Now that the CNOR has issued, the red knot is on the agency’s watchlist. This means that the emergency monitoring system set forth at 16 U.S.C. § 1533(b)(3)(C)(iii) has become available in the event of exigent circumstances that warrant immediate protection of the red knot.
III.
We will dismiss the appeal as moot.
. Appellants are the American Bird Conservancy, American Littoral Society, Defenders of Wildlife, Delaware Audubon Society, Delaware Riverkeeper Network, New Jersey Audubon Society, and the Delaware and New Jersey Chapters of the Sierra Club.
. The full text of the emergency provision is as follows:
Neither paragraph (4), (5), or (6) of this subsection nor section 553 of Title 5 shall apply to any regulation issued by the Secretary in regard to any emergency posing a significant risk to the well-being of any species of fish or wildlife or plants, but only if—
(A) at the time of publication of the regulation in the Federal Register the Secretary publishes therein detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident species of fish or wildlife, or plants, the Secretary gives actual notice of such regulation to the State agency in each State in which such species is believed to occur.
Such regulation shall, at the discretion of the Secretary, take effect immediately upon the publication of the regulation in the Federal Register. Any regulation promulgated under the authority of this paragraph shall cease to have force and effect at the close of the 240-day period following the date of publication unless, during such 240-day period, the rulemaking procedures which would apply to such regulation without regard to this paragraph are complied with. If at any time after issuing an emergency regulation the Secretary determines, on the basis of the best appropriate data available to him, that substantial evidence does not exist to warrant such regulation, he shall withdraw it.
16 U.S.C. § 1533(b)(7).
. According to the ESA, listing determinations must be based on "the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A). A species is adjudged to be endangered or threatened if it meets one or more of five statutorily defined factors:
(A) the present or threatened destruction, modification, or curtailment of [the species'] habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
(E) other natural or manmade factors affecting [the species'] continued existence.
Id. § 1533(a)(1). Appellants claim, as they did before the District Court, that the FWS's denial of their emergency listing requests was based on considerations that fell outside this narrow statutory framework and, therefore, was arbitrary and capricious. Given our disposition herein, we need not address this claim.
. Section 1533(b)(3)(C)(iii) directs the Secretary to "make prompt use of the authority under [16 U.S.C. § 1533(b)(7)] to prevent a significant risk to the well being” of a warranted but precluded species. 16 U.S.C. § 1533(b)(3)(C)(iii).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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HOLMES, Circuit Judge.
Forest Guardians appeals the denial of its petition for review of the U.S. Fish and Wildlife Service’s (“FWS”) decision to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons (“Falcons”) into southern New Mexico. Forest Guardians contends that the FWS violated section 10(j) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1539®, when it allegedly promulgated a final rule to release captive-bred Falcons within the current range of the species and in an area that is not wholly separate geographically from an existing Falcon population. Forest Guardians also argues that the FWS violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370Í, when it decided to release captive-bred Falcons before completing its environmental impact analysis. Because the FWS allegedly had predetermined the outcome of its NEPA analysis, Forest Guardians claims that the FWS failed to take the requisite “hard look” at the environmental impacts of its proposed action. The district court rejected both arguments. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM the district court’s denial of the petition for review.
I. BACKGROUND
Forest Guardians contends that the Falcon, an endangered species, should be permitted to repopulate the United States naturally, while enjoying full protection of its yet-to-be-designated critical habitat under the ESA. On the other hand, the FWS and The Peregrine Fund, which intervened in this action, advocate the release of captive-bred Falcons into southern New Mexico, while decreasing the Falcon’s protection under the ESA. Our task is not to decide which strategy is more scientifically sound; rather, we must review the 10® rule under the Administrative Procedure Act (“APA”) to determine if the rule was promulgated in accordance with the ESA and NEPA.
A. Extirpation and Possible Restoration of the Falcon in the United States
The Falcon, “perhaps one of our most colorful birds of prey,” Determination of the Northern Aplomado Falcon To Be an Endangered Species, 51 Fed.Reg. 6686, 6686 (Feb. 25, 1986) (to be codified at 50 C.F.R. pt. 17), is a medium-sized subspecies of the aplomado falcon historically located in the “savannas, coastal prairies, and higher-elevation grasslands” stretching across the southwestern United States through Mexico and into Guatemala and Nicaragua. Dean P. Keddy-Hector, Aplomado Falcon, The Birds of North America, No. 549, at 1, 1 (2000); accord Determination of the Northern Aplomado Falcon to Be an Endangered Species, 51 Fed.Reg. at 6686. The Falcon is the only subspecies of the aplomado falcon to be recorded in the United States. Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. 42,298, 42,298 (July 26, 2006) (to be codified at 50 C.F.R. pt. 17).
In 1986, the Secretary of the Interior (“Secretary”) listed the Falcon as endangered because it had been extirpated from its historic range in Arizona, New Mexico, and Texas for approximately thirty years and was known to nest only in Mexico. Determination of the Northern Aplomado Falcon To Be an Endangered Species, 51 Fed.Reg. at 6686. As of 1986, the Falcon had not nested in the United States or northern Mexico since the discovery of nests near Deming, New Mexico, and in northern Chihuahua in 1952. Id. The Secretary determined that the main factor leading to the Falcon’s disappearance was “habitat degradation due to brush encroachment” and that “the most serious threat to th[e] falcon [wa]s the continued use of DDT and other persistent pesticides within the ranges of the falcon and some of its prey species.” Id. at 6686; see also id. at 6687, 6688. The Secretary concluded that “the species is sensitive to habitat degradation and chemical contamination, and needs the type of active management and protective measures provided for in the [ESA].” Id. at 6688.
In listing the Falcon as endangered, the Secretary did not designate a critical habitat. Id. The Secretary found that such a designation “[w]as not prudent ... because there [wer]e no known active nesting areas within the past 25 years in the United States.” Id. Although the Falcon continued to reside in portions of Mexico, the Secretary noted that “[c]ritical habitat is not designated in areas outside U.S. jurisdiction.” Id. (citing 50 C.F.R. § 424.12(h)).
In September 2002, Forest Guardians petitioned the FWS to designate critical habitat for the Falcon, pursuant to 16 U.S.C. § 1533(b)(3)(D)(), after a pair of Falcons successfully nested in Luna County, New Mexico in 2001 and bred chicks in 2002. Forest Guardians contended that the FWS should designate a critical habitat for the Falcon in Arizona, New Mexico, and Texas because the Falcon was no longer extirpated from the United States. In subsequent years, other wild Falcons were increasingly sighted in that area. Nevertheless, the FWS did not respond to the petition.
B. Proposed 10(j) Rule
In 2005, the FWS proposed a rule under section 10(j) of the ESA that would reintroduce captive-bred Falcons into New Mexico and Arizona in an attempt to establish a viable resident population of Falcons. Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. 6819, 6819 (Feb. 9, 2005) (to be codified at 50 C.F.R. pt. 17). Section 10(j) allows the Secretary to authorize the release of an experimental population of an endangered species “outside the current range of such species if the Secretary determines that such release will further the conservation of such species.” 16 U.S.C. § 1539(j )(2) (A). Ordinarily, such a population “shall be treated as a threatened species,” rather than as an endangered species. Id. § 1539(j)(2)(C). If “an[ ] experimental population [is] determined ... to be not essential to the continued existence of a species,” the Secretary may not designate critical habitat for that population. Id. § 1539<j) (2) (C) (ii) (emphasis added). The FWS intended the proposed 10(j) rule to fulfill one of the goals identified in the Falcon’s Recovery Plan, viz., to reestablish the Falcon in the United States.
The FWS proposed to release captive-bred Falcons and “to designate this reintroduced population as a nonessential experimental population ... according to section 10(j) of the [ESA].” Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. at 6819. In support of this proposed 10(j) rule, the FWS stated that “the continued pesticide influence, shrub encroachment into Chihuahuan grasslands, low densities of avian prey in some areas, and the increased presence of the great horned owl ..., which preys upon the falcon, may be limiting recovery of the species.” Id. at 6821. The FWS noted that there had been “no documented nesting attempts by wild birds in New Mexico between 1952 and 2001 ... [and] no verified sightings of falcons in Arizona since 1940.” Id. The FWS acknowledged that “[s]poradic sightings of falcons have occurred in New Mexico with sightings from every decade since the 1970s.” Id. However,
at least some of these sightings may be juvenile birds that are dispersing from existing populations in the Mexican state of Chihuahua. Any significant natural re-colonization of habitats in Arizona and New Mexico would likely take decades, if it occurred at all, because the reproductive rate of the population in Mexico has declined....
Id.
The FWS concluded that the presence of Falcons in the proposed nonessential experimental population area was too minimal to constitute a population. See id. at 6822. Based on annual Falcon surveys in New Mexico, the first documented successful nesting attempt in fifty years occurred in Luna County, New Mexico, in 2001. Id. That nesting pair fledged three chicks in 2002. Id. However, “[i]n 2003, only a single female [Falcon] was seen in the area of [that] nest.” Id. “In 2004, a pair of falcons was seen on one monitoring site visit and a single falcon was seen on several other occasions.” Id.
“Based on definitions of ‘population’ used in other experimental population rules ..., [the FWS] believe[d] that a determination that a falcon population already exists in a designated area would require a minimum of two successfully-reproducing falcon pairs over multiple years.” Id. The FWS concluded that “[biologically, the term ‘population’ is not normally applied to a single pair, and so the few birds in New Mexico could be considered emigrants disconnected from the Chihuahuan population.” Id. Moreover, the FWS noted that “two, or even three, birds are not considered a self-sustaining population. Self-sustaining populations need a sufficient number of individuals to avoid inbreeding depression and occurrences of chance local extinction; this can range from 50 to 500 breeding individuals.... ” Id.
Furthermore, not only did the FWS conclude that there was no current wild Falcon population, but it also found that repopulation was unlikely because “[n]atural, i.e., unaided, falcon recolonization of New Mexico and Arizona would be dependent on dispersing falcons” from other areas, including Mexico. Id. at 6824. “The half-century absence of falcons in Arizona and New Mexico suggests that the Chihuahua, Mexico, falcon population cannot recolonize New Mexico and Arizona with sufficient numbers to establish a population.” Id. at 6825. In addition, the FWS found that “[t]he low fledgling success in Chihuahua, and stable or declining breeding numbers there ... suggest that birds in this area are not likely to provide enough dispersers to populate New Mexico.” Id. (citation omitted).
The FWS determined that the re introduction of captive-bred Falcons as a nonessential experimental population would help to restore the Falcon. Id. at 6819. In particular, the FWS noted that The Peregrine Fund’s captive-bred Falcons “were propagated with the intention of re-establishing a wild population within the United States to achieve recovery goals.” Id. at 6821; see also id. at 6821-23 (outlining procedure for raising and releasing Falcons). The FWS also observed that this type of reintroduction “ha[d] been successful for other species, including the peregrine falcon ... [and the] California condor.” Id. at 6821. Moreover, the FWS successfully had reintroduced Falcons to two national wildlife refuge areas in southern Texas under a safe harbor agreement with The Peregrine Fund. Id. Based on this experience, the FWS “believe[d] that it is possible to accelerate the establishment of a breeding population in the Southwest through releases of captive-raised birds.” Id. at 6822; see also id. at 6823 (“We fully expect that the proposed [nonessential experimental population] will result in the establishment of a self-sustaining, resident population, which will contribute to the recovery of the species.”).
The geographic boundary of the proposed nonessential experimental population was to cover all of New Mexico and Arizona, even though Falcons would be released only within New Mexico. Id. at 6822. The FWS concluded that the proposed area was geographically separate from other Falcon populations, as required by section 10(j), because the “area is geographically isolated from existing falcon populations in Mexico and Texas by a sufficient distance to preclude significant contact between populations.” Id. at 6823. Although “taking” an endangered species is normally prohibited by the ESA, the proposed rule would allow a person to “take” a Falcon within the proposed area “provided that the take is unintentional and was not due to negligent conduct.” Id. at 6824. The FWS predicted that takings would be rare because “the reintroduction is compatible with existing land use practices for the area.” Id.
C. Final 10(j) Rule
The FWS prepared a draft environmental assessment (“EA”) and solicited public comment. Id. at 6819, 6825. After the public comment period, the FWS issued a final 10(j) rule on July 26, 2006, which finalized its plan to release captive-bred Falcons into southern New Mexico as a nonessential experimental population. Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed. Reg. at 42,298.
In the final rule, the FWS again concluded that there was no wild population of Falcons in New Mexico or Arizona. Id. The FWS indicated that “[flormal surveys and reliable sightings ... show that a small number of falcons have occurred in New Mexico, with a small number of sightings occurring in every decade since the 1960s.” Id. at 42,299. The FWS also noted that “[r]epeated follow-up by highly qualified, experienced falcon surveyors ... revealed that none of [those] falcons appeared to be local residents or defending a territory.” Id. The FWS concluded that the Falcon sightings in New Mexico and Arizona “may represent falcons dispersing from the population in Chihuahua that were opportunistically foraging in areas rich in prey due to vegetative growth from precipitation.” Id.
The FWS emphasized that the nonessential experimental population would be wholly separate geographically from naturally occurring Falcon populations. Id. at 42,300. The FWS explained that
[i]n the case of the falcon, (l)[t]his subspecies has been known to disperse up to 250 kilometers, (2) it would be virtually impossible to preclude naturally occurring individual falcons from intermingling with the experimental population, and (3) there has been only one pair that has reproduced one time within the [nonessential experimental population] area. Designation of a 10(j) [nonessential experimental population] requires that the reintroduced animals be “wholly separate” from any existing population. We do not consider the pair of falcons that bred in 2002 in Luna County to constitute a population. Therefore, the exclusion of the counties surrounding the 2002 pair from the 10(j) designation is not necessary. We identify the experimental population as all falcons found within the [nonessential experimental population] area, including rein-trod[ueed] falcons and any lone dispersers and their offspring. We believe this is the best manner by which to manage the falcon reintroduction program to achieve species recovery.
Id. Relying on regulatory definitions of “population,” the FWS concluded that “lone dispersers do not constitute a population or even part of a population” because dispersers “are not in common spatial arrangement sufficient to interbreed with other members of a population.” Id. (internal quotation marks omitted). Individual animals, the FWS emphasized, do not constitute a population. Id. Accordingly,
[t]he single pair of New Mexico falcons that successfully reproduced only once in 2002 (after a 50-year absence) is neither self-sustaining, a group, nor in common spatial relationship with the group of approximately 25 to 35 breeding falcon pairs in Mexico. These Mexico falcons occur 160 kilometers (km) (100 miles (mi)) or more south of the United States border.
Id. Moreover, the FWS noted that “the few birds sighted in New Mexico could be considered dispersers from the Chihuahuan population.” Id. at 42,300-01. Because the FWS asserted that it “ha[s] no authority to manage a population in a different country,” it concluded that “the existence of a group in Mexico should not preclude conservation and management of falcons in the United States in order to achieve species recovery.” Id. at 42,301.
Accordingly, the FWS planned to release captive-bred Falcons into New Mexico every year during the spring or summer and to evaluate the progress of the program every five years. Id. at 42,298, 42,-301, 42,302, 42,309, 42,311. The Peregrine Fund was to conduct annual surveys of the surrounding areas to locate and record the surviving birds. Id. at 42,307-08. At the time of the promulgation of the 10(j) rule, the FWS “anticipate[d] releasing falcons for 10 years or more.” Id. at 42,310. The FWS stated that “[e]fforts under th[e] 10(j) rule will cease when or if it is determined that the program no longer furthers the conservation of the falcon.” Id. The FWS intended “the 10(j) rule to remain in place until the status of the species improves to a point where listing is no longer necessary, and the falcon can ... be delisted.” Id. at 42,311.
The Peregrine Fund began releasing captive-bred Falcons into New Mexico in 2006. As of July 2007, a grant agreement between the FWS and The Peregrine Fund reflected that The Peregrine Fund had received $295,793 to implement this program. As we noted in a related appeal, The Peregrine Fund “has released some 100 birds altogether, of which at least 50 have successfully reached independence in the wild and some have begun to reproduce.” New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 (10th Cir.2009). In this appeal, The Peregrine Fund claims that it released eleven Falcons in 2006, thirty-nine Falcons in 2007, and seventy Falcons in 2008.
D. The Instant Litigation
On March 27, 2006, Forest Guardians filed an action in the District of New Mexico to compel the FWS to answer its 2002 petition requesting the designation of critical habitat for the Falcon in Arizona, New Mexico, and Texas. Forest Guardians also challenged the 10(j) rule, alleging that the FWS had violated the APA because the rule did not comply with the ESA or NEPA. Specifically, Forest Guardians alleged that the FWS had violated provisions of section 10(j) of the ESA that: (1) require that an experimental population be released only “outside the current range of such species”; and (2) state that an experimental population remains experimental only as long as it is “wholly separate geographically from nonexperimental populations of the same species.” Forest Guardians predicated these ESA arguments on the assertion that “[t]he current range of the Northern Aplomado Falcon ... includes Southern New Mexico and Northern Chihuahua, Mexico.” R., Doc. 12, at 33 ¶ 83, 34 ¶ 86 (Am. Compl., filed Sept. 11, 2006). Forest Guardians also alleged that the FWS had violated NEPA because it had predetermined the outcome of its environmental analysis.
The district court granted the petition for agency review as to the designation of critical habitat in Texas and ordered the FWS to answer within thirty days. That ruling is not before us on appeal. The court also denied the petition as to all of Forest Guardians’ other claims, upholding the 10(j) rule under the ESA and finding that the FWS had not predetermined the outcome of its NEPA analysis. This appeal timely followed.
II. DISCUSSION
On appeal, Forest Guardians argues that: (1) the FWS violated section 10(j) of the ESA by releasing an experimental population of captive-bred Falcons inside the current range of the species and not wholly separate geographically from populations of wild Falcons, and (2) the FWS violated NEPA by conducting a biased analysis that did not constitute a “hard look” at the environmental impact of the proposed 10(j) rule, but rather was intended to reach a predetermined outcome. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we disagree with Forest Guardians and affirm the district court’s denial of the petition for review of agency action.
A. The 10(j) Rule and the ESA
We turn first to the validity of the 10(j) rule establishing a nonessential experimental population of captive-bred Falcons in New Mexico and Arizona. Forest Guardians argues that the rule violates section 10(j) of the ESA because it authorizes the release of captive-bred Falcons within the current range of the species and in an area that is not wholly separate geographically from a cross-border Falcon population. See 16 U.S.C. § 1539(j)(l), (2)(A). Forest Guardians contends that “[t]he reappearance of wild Falcons in New Mexico established] that the State is within the Falcon’s ‘current range’ ” because there is “a wild Falcon population span[ning] the border between New Mexico and Mexico.” Aplt. Opening Br. at 7. It maintains that the record contains “abundant evidence” of Falcon sightings in New Mexico to support the existence of a cross-border population. Id. at 4; see also id. at 8. Forest Guardians argues that the FWS’s position to the contrary “is simply wrong,” id. at 40, because “there is no substantial evidence in the Record supporting [the] FWS’s position that a cross-border Falcon population does not exist,” id. at 13. Consequently, Forest Guardians claims that the FWS “did not make a reasoned choice among fairly conflicting views.” Id. at 32. Forest Guardians also alleges that the FWS issued the 10(j) rule to avoid ruling on its critical habitat petition.
The FWS responds that its conclusions were based “on the results of extensive surveys by expert biologists using [FWS]approved survey protocols designed to maximize detection of Falcons.” Aplee. Br. at 16. Moreover, “[t]he record reflects that the [FWS] endeavored to repeatedly follow-up on every credible Falcon sighting to ascertain whether any Falcons were resident and/or defending a territory.” Id. The FWS argues that “[t]he record contains extensive evidence supporting [its] conclusion that despite occasional sightings of lone Falcons in the [nonessential experimental population] area and an isolated breeding occurrence by one pair of Falcons in 2002, an interbreeding, self-sustaining population did not exist in New Mexico, as part of a continuous swath or otherwise.” Id. at 23. The FWS also contends that Forest Guardians’ position is “predicated upon a statutory interpretation squarely rejected by this Court in Wyoming Farm Bureau.” Id. at 22 (citing Wyo. Farm Bureau Fed’n, 199 F.3d at 1231). The FWS concludes by arguing that it has used political boundaries in the past to designate experimental areas, as in Wyoming Farm Bureau Federation, and that the use of political boundaries does not violate the ESA.
The Peregrine Fund agrees that the evidence in the record “overwhelmingfly]” supports the FWS’s action. TPF Br. at 6. The Peregrine Fund adds that the success of the Falcon’s recovery “is far more likely .... with the infusion of a concentrated number of captive produced birds.” Id. at 2. Furthermore, The Peregrine Fund maintains that “[political borders do have relevance in considerations involving the management and conservation of wildlife species, for the obvious reason that laws, rules, and practices regarding such matters often differ greatly on the two sides of an international border.” Id. at 15.
1. Standard of Review
“We afford the district court’s decision no particular deference, but rather, review the rules and administrative record independently.” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231. “Our review of the rules and record is governed by the [APA], 5 U.S.C. § 706. Essentially, we must determine whether the [agency]: (1) acted within the scope of [its] authority, (2) complied with prescribed procedures, and (3) took action that was neither arbitrary and capricious, nor an abuse of discretion.” Id. (citing Olenhouse, 42 F.3d at 1574). “Review under the arbitrary and capricious standard is narrow in scope, but is still a ‘probing, in-depth review.’ ” Sorenson Commc’ns, Inc. v. FCC, 567 F.3d 1215, 1221 (10th Cir.2009) (quoting Qwest Commc’ns Int’l, Inc. v. FCC, 398 F.3d 1222, 1229 (10th Cir.2005)). An agency’s action is entitled to a presumption of validity, and the petitioner challenging that action bears the burden of establishing that the action is arbitrary or capricious. Citizens’ Comm, to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008).
“Within this context, we will set aside the [agency’s] factual determinations only if they are unsupported by substantial evidence.” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231. “Evidence is substantial in the APA sense if it is enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.” Olenhouse, 42 F.3d at 1575 (internal quotation marks omitted). “ ‘The substantial-evidence standard does not allow a court to displace the [agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.’ ” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231 (quoting Trimmer v. U.S. Dep’t of Labor, 174 F.3d 1098, 1102 (10th Cir.1999)). We will review matters of law de novo and will defer to the agency’s construction of the ESA if Congress has not clearly spoken on the issue before us and has delegated authority over the subject at issue to the agency, unless the agency’s “construction is unreasonable or impermissible.” Id; accord Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
2. Overview of the ESA and Section 10(j)
“Congress enacted the [ESA] in 1973 to ‘provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction.’ ” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231 (emphasis omitted) (quoting S.Rep. No. 93-307, at 1 (1973), reprinted in 1973 U.S.C.C.A.N. 2989). “Toward that end, the [ESA] authorizes the Secretary of the Interior to list domestic or foreign species as endangered or threatened.” Id. Once a species or subspecies is listed as endangered, it receives certain protections under the ESA, including a prohibition against trading or “taking” the species. 16 U.S.C. § 1538(a)(1); see also id. § 1532(16) (defining “species” to include subspecies). “The Secretary [must] develop and implement [recovery] plans ... for the conservation and survival of endangered species ..., unless he finds that such a plan will not promote the conservation of the species.” Id. § 1533(f)(1). In addition, federal agencies “assume special obligations to conserve, recover and protect that species.” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231. Agencies are required to use their authority to “carry[ ] out programs for the conservation of endangered species” and to ensure that their actions are “not likely to jeopardize ... any endangered species ... or result in the destruction or adverse modification of [its critical] habitat.” 16 U.S.C. § 1536(a)(1), (2).
Congress amended the ESA in 1982 to broaden the FWS’s discretion to reintroduce endangered and threatened species into their historic ranges. Wyo. Farm Bureau Fed’n, 199 F.3d at 1231-32. In particular, Congress added section 10© to authorize the FWS to designate certain reintroduced populations of endangered and threatened species as “experimental populations.” See id.; see also 16 U.S.C. § 1539®. An “experimental population” is “any population ... authorized by the Secretary for release ... but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.” 16 U.S.C. § 1539®(1). “The Secretary may authorize the release ... of any population ... of an endangered species ... outside the current range of such species if the Secretary determines that such release will further the conservation of such species.” Id. § 1539(j)(2)(A). “Before authorizing the release of any population ... the Secretary shall ... identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species____” Id. § 1539©(2)(B). As this court explained in Wyoming Farm Bureau Federation:
Congress added section 10© to the Endangered Species Act in 1982 to address the Fish and Wildlife Service’s and other affected agencies’ frustration over political opposition to reintroduction efforts perceived to conflict with human activity. Although the Secretary already had authority to conserve a species by introducing it in areas outside its current range, Congress hoped the provisions of section 10© would mitigate industry’s fears experimental populations would halt development projects, and, with the clarification of the legal responsibilities incumbent with the experimental populations, actually encourage private parties to host such populations on their lands.
199 F.3d at 1231-32 (citing 16 U.S.C. § 1539©; H.R.Rep. No. 97-567, at 8 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2808, 2817). Designation of a population as “experimental” also allows the Secretary “flexibility and discretion in managing the reintroduction of endangered species.” Id. at 1233.
Forest Guardians brought this challenge because, in its view, the 10© rule “dramatically weakened ESA protection, including habitat protection, for wild Falcons in New Mexico.” Aplt. Opening Br. at 7. In short, Forest Guardians is concerned because the 10(j) rule allows the Falcon to be treated on public land as threatened rather than endangered, permits incidental takings of the Falcon (although not intentional takings, i.e., hunting), reduces consultation requirements for federal agencies concerning the Falcon, and prohibits the designation of critical habitat for the Falcon in New Mexico and Arizona. See 16 U.S.C. §§ 1536(a), 1539(j)(2)(C); 50 C.F.R. § 17.83(a)(2).
3. Forest Guardians’ ESA Challenge
Forest Guardians challenges the FWS’s application of its definition of “population” to the facts of this case and, relatedly, suggests that FWS has misconstrued our decision in Wyoming Farm Bureau Federation. Although the parties appear to agree on the number of Falcons that have been observed in New Mexico, they dispute the conclusion to be drawn from those observations. The resolution of this ESA challenge depends on whether the Falcons sighted in New Mexico constitute a cross-border population of wild Falcons such that the establishment of a nonessential experimental population in that area is not “outside the current range” of the species and is not “wholly separate geographically” from the cross-border population. See 16 U.S.C. § 1639(j)(l), (2).
We first examine the ESA to determine the appropriate method of applying section 10(j). As we noted in Wyoming Farm Bureau Federation, the ESA does not define the term “population,” nor does it specify the meaning of the phrases relevant to this appeal — that is, “current range” or “wholly separate geographically from nonexperimental populations”; that is so because the conservation of a species requires flexibility and specialized management tailored to the circumstances of that particular species. 199 F.3d at 1233-34. “We therefore defer to the [FWS]’s interpretation of the phrase ‘wholly separate geographically from nonexperimental populations,’ so long as its interpretation does not conflict with the plain language of the Endangered Species Act.” Id. at 1234.
The FWS generally defines a “population” as a self-sustaining “group of fish or wildlife ... in common spatial arrangement that interbreed when mature.” 50 C.F.R. § 17.3; see also Wyo. Farm Bureau Fed’n, 199 F.3d at 1234 & n. 3; Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. 42,300. The FWS also has defined “experimental population” as
an introduced and/or designated population (including any off-spring arising solely therefrom) that has been so designated in accordance with the procedures of this subpart but only when, and at such times as the population is wholly separate geographically from nonexperimental populations of the same species. Where part of an experimental population overlaps with natural populations of the same species on a particular occasion, but is wholly separate at other times, specimens of the experimental population will not be recognized as such while in the area of overlap. That is, experimental status will only be recognized outside the areas of overlap. Thus, such a population shall be treated as experimental only when the times of geographic separation are reasonably predictable; e.g., fixed migration patterns, natural or man-made barriers. A population is not treated as experimental if total separation will occur solely as a result of random and unpredictable events.
50 C.F.R. § 17.80(a).
The FWS’s conclusion under those definitions, that there is no wild population of Falcons in New Mexico or Arizona, is explained in detail in the 10(j) rule. In brief, the FWS determined that the nonessential experimental population would be “wholly separate geographically” from the wild Falcons. Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. at 42,300. The FWS concluded that the 2001 pair of nesting Falcons in Luna County, New Mexico, which bred in 2002, did not constitute a population because a single pair is “neither self-sustaining, a group, nor in common spatial relationship” to the Falcons in Mexico. Id. The FWS reasoned that the Falcons in Mexico occurred at least 160 kilometers (or 100 miles) south of the border, so that population was not in “common spatial relationship” with the pair of New Mexico Falcons. Id. The FWS also determined that the sightings of “lone dispersers” that did not appear to be resident birds or birds defending a territory did not constitute a population or even part of a population since they are not in “common spatial arrangement” sufficient to interbreed with other members of a population. Id. at 42,300-01. “Furthermore, two, or even three, birds are not considered a self-sustaining population. Self-sustaining populations require a sufficient number of individuals to avoid inbreeding depression and occurrences of chance local extinction.” Id. at 43,201. Accordingly, the FWS declined to exclude the area in New Mexico from the 10(j) designation because that area had no existing population of wild Falcons. Id. Moreover, the FWS concluded that because it did not have the authority to manage the Mexican Falcon population, the existence of those Falcons “should not preclude conservation and management of [nonessential experimental] falcons in the United States in order to achieve species recovery.” Id.
In deciding this case, we may draw guidance from our decision in Wyoming Farm Bureau Federation, which involved an analogous 10(j) rale. In that case, we upheld a rule establishing a nonessential experimental population of gray wolves in Yellowstone National Park and central Idaho. Wyo. Farm Bureau Fed’n, 199 F.3d at 1229, 1241. In so holding, we concluded that the Department of the Interior’s interpretation of the phrase “wholly separate geographically from nonexperimental populations” did not conflict with the ESA’s plain language. Id. at 1234. The Department had defined “population” as “a potentially self-sustaining group in common spatial arrangement, and thus determined a geographic separation is any area outside the area in which a particular population sustains itself.” Id. (internal quotation marks omitted).
Although the Department “d[id] not dispute individual wolves may leave (and, from time to time, ha[d] left) Canada and Montana and enter the experimental population areas,” id. at 1233, we held that such a possibility did not violate section 10(j)’s requirement that experimental populations be wholly separate from nonexperimental populations, id. at 1235-36. We instead concluded that the Department's determination that a population is more than one dispersing individual was a reasonable interpretation of the ESA. Id. at 1234-36. Under the definition of “population,” “lone dispersers d[id] not constitute a population or even part of a population [because] they [we]re not in ‘common spatial arrangement’ sufficient to interbreed with other members of a population.” Id. at 1234, see also id. at 1235-36. We also upheld the Department’s interpretation of the phrase “current range” to mean the current range of a population and not of an individual wolf. Id. at 1236. In addition, we approved the Department’s designation of the experimental area to include all wolves found within the area, reasoning that
[b]ased on the facts (1) there were no reproducing wolf pairs and no pack activity within the designated experimental areas, (2) wolves can and do roam for hundreds of miles, and (3) it would be virtually impossible to preclude naturally occurring individual gray wolves from intermingling with the experimental population, the Secretary intentionally identified the experimental population as all wolves found within the experimental areas, including imported wolves and any lone dispersers and their offspring. The Department determined it could best manage the wolf reintroduction program to achieve species recovery in this manner. We find nothing in the Act that invalidates this approach by requiring the protection of individuals to the exclusion or detriment of overall species recovery, or otherwise limiting the Department’s flexibility and discretion to define and manage an experimental population pursuant to section 10(j).
Id. at 1236-37 (citations omitted).
In this case, the FWS closely followed the definitions upheld in Wyoming Farm Bureau Federation. Accordingly, we conclude that the FWS’s definition of what constitutes a population for purposes of the 10(j) rule is not in conflict with the plain language of the ESA and is a reasonable interpretation of that language. Forest Guardians acknowledges the precedential effect of Wyoming Farm Bureau Federation. However, Forest Guardians reasons that Wyoming Farm Bureau Federation does not offer definitive answers to the issues that it advances here — whether there is substantial evidence in the record to support the FWS’s conclusions that: (1) one breeding pair and the individual Falcons seen in New Mexico themselves do not constitute a population; (2) the dispersing Falcons in New Mexico were too distant from the Mexican population to form part of that population; and (3) the international border was a barrier that prevented a finding that there was such a population.
After carefully reviewing the record, we conclude that substantial evidence supports the FWS’s first two conclusions. And we therefore need not reach the FWS’s third conclusion. In particular, we note that the record contains several biologists’ surveys that monitored the status of the Falcon in New Mexico and Mexico. Many of those surveys support the FWS’s conclusions that the limited number of Falcons in New Mexico were likely long-range lone dispersers from the Mexican Falcons located 160 km (or 100 mi) south and that the Mexican Falcons were not likely to recolonize the southwestern United States. Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. at 42,299-301, 42,307. For example, after conducting a survey of the Falcons in Mexico in 1986, a biologist concluded that there were not a large number of Falcons in Chihuahua or other areas of Mexico adjacent to the United States. He also noted that grasslands in that area, which constitute the Falcons’ potential habitat, were limited and scattered. Based on these observations, he tentatively concluded that “[pjortions of Mexico adjacent to the United States probably do not support enough Aplomado Falcons to foster natural recolonization of the United States.” FWS SuppApp. at 166.
The record indicates that other experts have agreed with that conclusion. Although the record does contain reports describing occasional sightings of apparently non-resident Falcons either alone or hunting in pairs, many surveys have repeatedly found no Falcons. At the time the FWS promulgated the 10(j) rule, the breeding pair in Luna, New Mexico, was the only recorded nesting pair of Falcons in New Mexico since 1952. Thus, the record contains substantial evidence to support the FWS’s conclusions that the Falcons seen in New Mexico do not constitute a population themselves and that those dispersers were too geographically removed from the Mexican Falcons to form part of that interbreeding, self-sustaining population.
Although the record also contains evidence to support Forest Guardians’ argument, we are not free to displace the FWS’s choice between two fairly conflicting views: See Wyo. Farm Bureau Fed’n, 199 F.3d at 1231 (quoting Trimmer; 174 F.3d at 1102). In commenting upon the appropriateness of the 10(j) rule, an expert even acknowledged that the question of whether there was a population of wild Falcons in New Mexico was “equivocal[] and cogent arguments can be made for either position.” J.A. at 83; see also id. at 87 (stating that the definition of what constitutes a population “could go on endlessly”). Forest Guardians does not point to any evidence in the record indicating that the FWS failed to acknowledge the existence of any other Falcons in New Mexico or Arizona.
Forest Guardians instead relies on the conclusion drawn from scholarly articles and by individual biologists that are contrary to the conclusion drawn by the FWS. In particular, Forest Guardians argues that two scholarly articles should be given the most weight of any evidence in the record under Baker. Aplt. Opening Br. at 8-13 (citing J.A. at 362-66 (Raymond A. Meyer & Sartor O. Williams, III, Recent nesting and current status of Aplomado Falcon (Falco Femoralis) in New Mexico, 59 N. Am. Birds 352-56 (2005)); J.A at 367-77 (Kendal E. Young et al., Aplomado Falcon Abundance and Distribution in the Northern Chihuahuan Desert of Mexico, 38 J. Raptor Res. 107-17 (2004))). Those articles conclude that the Falcons sighted in New Mexico are part of a cross-border population with the Falcons in Mexico. The FWS and The Peregrine Fund criticize these articles for neither defining a “population” nor explaining the basis for the authors’ conclusions. Moreover, we reject Forest Guardians’ argument that some evidence should be given greater weight than other evidence in the record. See supra note 15. Although this conflict among the experts indicates that biologists disagree as to the conclusion that may be drawn from the facts, nothing in the record indicates that the FWS’s conclusion contrary to that advocated by Forest Guardians was arbitrary or capricious.
In sum, the FWS did not act arbitrarily or capriciously in promulgating the 10(j) rule under the ESA. The FWS’s definition of what constitutes a population is not in conflict with the plain language of the ESA and is a reasonable interpretation of that language. We also conclude that substantial evidence in the record supports the FWS’s conclusion that no wild population of Falcons in New Mexico would prevent the release of captive-bred Falcons into that area as part of a nonessential experimental population. Thus, because we determine that the rule was promulgated in accordance with the ESA and that the FWS’s actions did not violate the APA, we next turn to the second issue on appeal— whether the FWS complied with NEPA in promulgating the 10(j) rule.
B. The 10(j) Rule and NEPA
Forest Guardians also contends that the FWS violated NEPA in promulgating the 10(j) rule. In particular, Forest Guardians argues that the FWS failed to take the requisite hard look at the environmental impacts of its proposed actions because it predetermined the outcome of its environmental analysis. Forest Guardians alleges that The Peregrine Fund refused to allow the FWS to use its captive-bred Falcons unless the FWS agreed to promulgate a 100) rule. The remedy sought by Forest Guardians is similar to that awarded in Metcalf v. Daley, 214 F.3d 1135, 1145-46 (9th Cir.2000), that is, a direction to the district court to order the agency to set aside the Finding of No Significant Impact (“FONSI”) and begin the NEPA process anew.
The FWS responds that the record “wholly fail[s] to demonstrate predetermination.” Aplee. Br. at 46. The agency contends that NEPA does not “require agency personnel to be subjectively impartial” and that the proper focus should be on the adequacy of its EA analysis. Aplee. Br. at 44, 46. In fact, the FWS maintains that Forest Guardians has not alleged that the substance of the EA was flawed or incomplete and has not challenged the issuance of the FONSI. The Peregrine Fund adds that Forest Guardians “muddles the distinction between a ‘predetermined NEPA analysis’ and acceptance of the Agency’s preferred action alternative.” TPF Br. at 20. The Peregrine Fund argues that “agencies and other third parties were uniformly supportive of the preferred alternative,” which was the 10(j) rule. Id. at 21. It also argues that there is no evidence in the record that the FWS failed to consider other action alternatives; rather, the evidence shows that the FWS took a hard look over six years before adopting the preferred action alternative.
1. Standard of Review
We review NEPA claims under the APA independently, giving “no particular deference to the district court’s review of an agency action.” See Colo. Envtl. Coal., 185 F.3d at 1167 n. 5. “As with other challenges arising under the APA, we review an agency’s NEPA compliance to see whether it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” New Mexico ex rel. Richardson, 565 F.3d at 704 (quoting 5 U.S.C. § 706(2)(A)). In the context of a NEPA challenge, “[a]n agency’s decision is arbitrary and capricious if the agency (1) ‘entirely failed to consider an important aspect of the problem,’ (2) ‘offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,’ (3) ‘failed to base its decision on consideration of the relevant factors,’ or (4) made a ‘clear error of judgment.’ ” Id. (quoting Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1280 (10th Cir.2007)); accord Colo. Envtl. Coal., 185 F.3d at 1167; see also Metcalf, 214 F.3d at 1143-45 (using arbitrary and capricious standard in reviewing predetermination claim); cf. Davis v. Mineta, 302 F.3d 1104, 1111, 1112-13 (10th Cir.2002) (applying the arbitrary and capricious standard in preliminary injunction context involving claim of NEPA predetermination). “When called upon to review factual determinations made by an agency as part of its NEPA process, short of a ‘clear error of judgment’ we ask only whether the agency took a ‘hard look’ at information relevant to the decision.” New Mexico ex rel. Richardson, 565 F.3d at 704; see also Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Finally, “[a] presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action.” Citizens’ Comm. to Save Our Canyons, 513 F.3d at 1176 (internal quotation marks omitted).
2. Overview of NEPA
“The centerpiece of environmental regulation in the United States, NEPA requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives.” New Mexico ex rel. Richardson, 565 F.3d at 703; see also 42 U.S.C. §§ 4331, 4332. “NEPA has twin aims. First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Balt. Gas & Elec. Co., 462 U.S. at 97, 103 S.Ct. 2246 (citation omitted) (internal quotation marks omitted); see also New Mexico ex rel. Richardson, 565 F.3d at 703 (“By focusing both agency and public attention on the environmental effects of proposed actions, NEPA facilitates informed decision-making by agencies and allows the political process to check those decisions.”).
Under NEPA, “[bjefore an agency may take ‘major Federal actions significantly affecting the quality of the human environment,’ an agency must prepare an environmental impact statement (‘EIS’) in which the agency considers the environmental impacts of the proposed action and evaluate[s] ‘alternatives to the proposed action,’ including the option of taking ‘no action.’” Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 780 (10th Cir.2006) (quoting 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.14(d)). In doing so, the agency must take a “hard look” at information relevant to its decision. New Mexico ex rel. Richardson, 565 F.3d at 704; see also Balt. Gas & Elec. Co., 462 U.S. at 97, 103 S.Ct. 2246; Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 (9th Cir.1999) (per curiam) (“NEPA does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.” (internal quotation marks omitted)). “When it is unclear whether a proposed action requires an EIS, the agency may first prepare a less detailed [EA].” Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1274 (10th Cir.2004) (citing 40 C.F.R. § 1501.4(b)). “If the EA leads the agency to conclude that the proposed action will not significantly affect the environment, the agency may issue a [FONSI] and fore-go the further step of preparing an EIS.” Id. (citing 40 C.F.R. § 1501.4(e)).
In this case, the FWS prepared an EA followed by a FONSI. In 2003, the FWS began its NEPA analysis by requesting public comment and holding public meetings in Arizona and New Mexico as part of the scoping process. In 2005, the FWS initiated a second public comment period on the proposed 10(j) rule and the draft EA and held two public hearings in New Mexico. In the EA, the FWS considered five alternatives: (1) the no-action alternative, (2) the preferred and chosen alternative of reintroducing Falcons in New Mexico and designating the species as a 10(j) nonessential experimental population in all of New Mexico and Arizona, (3) reintroducing Falcons in New Mexico and designating the species as a 10(j) nonessential experimental population in parts of New Mexico and all of Arizona, (4) reintroducing Falcons in New Mexico by entering into safe harbor agreements with private landowners but without designating the species as a 10(j) nonessential experimental population, and (5) reintroducing Falcons in New Mexico without designating the species as a 10(j) nonessential experimental population or entering into safe harbor agreements. The FWS issued a final EA in June 2006 and a FONSI in July 2006.
3. Forest Guardians’ NEPA Challenge
Forest Guardians challenges the entire NEPA analysis as suspect because the FWS allegedly did not take a hard look at the environmental impacts of its proposed actions due to its alleged bias. We disagree.
NEPA does not require agency officials to be “subjectively impartial.” Envtl. Def. Fund, Inc. v. Corps of Eng’rs of the U.S. Army, 470 F.2d 289, 295 (8th Cir.1972). An agency can have a preferred alternative in mind when it conducts a NEPA analysis. 40 C.F.R. § 1502.14(e); see also Ass’n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1185 (9th Cir.1997) (noting that “an agency can formulate a proposal or even identify a preferred course of action before completing an EIS”). “The test of compliance ... then, is one of good faith objectivity rather than subjective impartiality.” Envtl. Def. Fund, Inc., 470 F.2d at 296. However, “the comprehensive ‘hard look’ mandated by Congress and required by [NEPA] must be timely, and it must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Metcalf, 214 F.3d at 1142; accord Int’l Snowmobile Mfrs. Ass’n v. Norton, 340 F.Supp.2d 1249, 1257-58 (D.Wyo.2004); see also 40 C.F.R. § 1502.2(g) (“Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made.” (emphasis added)); 40 C.F.R. § 1502.5 (“The statement shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and mil not be used to rationalize or justify decisions already made.” (emphasis added)).
We have previously addressed similar predetermination claims. E.g., Silverton Snowmobile Chib, 433 F.3d at 780-81; Lee v. U.S. Air Force, 354 F.3d 1229, 1240 (10th Cir.2004); Davis, 302 F.3d at 1112-13; cf. Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1186 (10th Cir.2002) (“finding] no ... preordained result” under Davis in a case involving illegal delegation of preparation of an EIS to a state agency and its contractor). We find Davis’s discussion regarding the predetermination of a NEPA analysis to be instructive, even though Davis arose from a different procedural posture. See 302 F.3d at 1109-11 (reviewing the denial of a motion for a preliminary injunction).
In Davis, the plaintiffs sought to enjoin the defendants from proceeding with a highway-construction project on the grounds that the defendants had violated NEPA and the Department of Transportation Act by preparing an inadequate EA and issuing a FONSI rather than an EIS. Id. at 1109. We concluded that the plaintiffs were likely to prevail on the merits of their claim that the agency had acted arbitrarily and capriciously; not only were procedural and substantive deficiencies identifiable in the environmental analysis itself, but the record also established that the defendants had “prejudged the NEPA issues.” Id. at 1112. The contractor hired by the agency to prepare a draft EA for the agency’s approval “was contractually obligated to prepare a FONSI and to have it approved, signed and distributed by [the agency] by a date certain. The decision whether to prepare a FONSI should have been based on the EA, of course, not the other way around.” Id. We found that the contractor’s predetermination was attributable to the agency because the agency “was involved throughout the NEPA process” and had indicated in a meeting that it was aware that a FONSI had been prepared prior to the public’s opportunity to comment on the EA. Id. at 1112-13 (internal quotation marks omitted). The agency also was aware of many of the inadequacies of the EA and the FONSI but failed to fix the problems. Id. at 1113. We held that the predetermination resulted in an environmental analysis that was tainted with bias and then enumerated the inadequacies found in the analysis. Id. at 1112-13, 1118-26. The plaintiffs ultimately received the requested preliminary injunction. Id. at 1126. Thus, Davis indicates that if an agency predetermines the NEPA analysis by committing itself to an outcome, the agency likely has failed to take a hard look at the environmental consequences of its actions due to its bias in favor of that outcome and, therefore, has acted arbitrarily and capriciously.
In Silverton Snowmobile Club, we rejected the plaintiffs’ argument that the agencies had violated NEPA by reaching a predetermined result. 433 F.3d at 780-81. The plaintiffs alleged that the agencies had “structured” their NEPA analysis and issues to ensure that the ultimate outcome would be inevitable. Id. at 780 (internal quotation marks omitted). After examining the record, we concluded that, far from conducting a biased NEPA analysis, the agencies had reached a compromise solution between competing user groups. Id. at 781. In reaching that conclusion, we distinguished Silverton Snowmobile Club from the Ninth Circuit’s decision in Met-calf, where the federal agency had entered into a binding agreement to reach a certain outcome before conducting a NEPA analysis. Id. at 781 n. 2 (discussing Metcalf, 214 F.3d at 1144). Silverton Snowmobile Club concluded that Metcalf was “a very different situation from this case, where the agencies had no preexisting agreement with any user group.” Id.
In light of Davis and its progeny, it is clear that an agency may violate NEPA, and consequently the APA, when it predetermines the result of its environmental analysis. As the Ninth Circuit explained in Metcalf, “[i]t is highly likely that because of the Federal Defendants’ prior written commitment ..., the EA was slanted in favor of finding that the ... proposal would not significantly affect the environment.” 214 F.3d at 1144; see also Int’l Snowmobile Mfrs. Ass’n, 340 F.Supp.2d at 1261 (“Given these definite statements ..., it does not seem that the [agency] could have issued any other rule.... [T]he issuance of the FEIS, ROD and Final Rule were nothing more than pro forma compliance with the requirements of NEPA.”).
A petitioner must meet a high standard to prove predetermination. We now make explicit what was implicit in our previous decisions: predetermination occurs only when an agency irreversibly and irretrievably commits itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed that environmental analysis — which of course is supposed to involve an objective, good faith inquiry into the environmental consequences of the agency’s proposed action. See, e.g., Silverton Snowmobile Club, 433 F.3d at 781 n. 2 (detecting no predetermination because agency “had no preexisting agreement with any user group”); Lee, 354 F.3d at 1240 (concluding that no predetermination occurred, even though the U.S. Air Force had entered into a series of agreements with the German Defense Ministry, because those agreements either were not executed until after the completion of the NEPA requirements or would not take effect until after the completion of those requirements); Davis, 302 F.3d at 1112-13 (holding that predetermination had occurred, when the consultant preparing the EA was contractually obligated to reach a certain environmental analytic outcome, with the endorsement of the agency).
Thus, predetermination is different in kind from mere “subjective impartiality,” Envtl. Def. Fund, Inc., 470 F.2d at 296 — which does not undermine an agency’s ability to engage in the requisite hard look at environmental consequences — even though subjective impartiality may under certain circumstances involve something resembling predetermination and lead an agency down the road to predetermination. This difference is highlighted by the stringent standard that must be met in order for us to conclude that an agency violated NEPA by predetermining the outcome of its environmental analysis — a conclusion that we would not and should not reach lightly. In order for us to conclude that an agency has engaged in predetermination, we must decide that the agency has irreversibly and irretrievably committed itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed that environmental analysis. We would not hold, therefore, that predetermination was present simply because the agency’s planning, or internal or external negotiations, seriously contemplated, or took into account, the possibility that a particular environmental outcome would be the result of its NEPA review of environmental effects. See Native Ecosys. Council v. Dombeck, 304 F.3d 886, 892-93 (9th Cir.2002) (“[W]e read the ... memorandum to indicate that the Forest Service contemplated waiving the road density standard.... However, such contemplation does not amount to a NEPA violation unless the ... memorandum committed the Forest Service to the amendments proposed. It did not.” (citations omitted)); cf. Fund for Animals v. Norton, 281 F.Supp.2d 209, 230 (D.D.C.2003) (holding that plaintiffs would likely succeed on their predetermination claim; noting that “[t]his is not a case in which the agency merely contemplated the issuance of depredation permits prior to embarking on an EA which ultimately recommended such a course of action”).
We observe that this clarification of our standard of proof for establishing predetermination puts us on a similar path as the Ninth Circuit, which would hold that predetermination has occurred only when an agency has made “an irreversible and irretrievable commitment of resources” based upon a particular environmental outcome, prior to completing its requisite environmental analysis. See Metcalf, 214 F.3d at 1143 (emphasis added). By way of illustration, in Metcalf, federal agencies had “(1) prepare[d] an EA, (2) decide[d] that the ... proposal would not significantly affect the environment, and (3) issue[d] a FONSI, but ... [only] after already having signed two agreements binding them to support the ... proposal.” Id. at 1142 (emphasis added). The Ninth Circuit in Metcalf held that the agencies had violated NEPA by making an “irreversible and irretrievable commitment of resources” prior to completing the environmental review. Id. at 1145; see also, e.g., id. at 1144 (“By the time the Federal Defendants completed the final EA ..., the die already had been cast. The ‘point of commitment’ to this proposal had come and gone.”); accord Save the Yaak Comm. v. Block, 840 F.2d 714, 717-19 (9th Cir.1988) (holding that such an irreversible and irretrievable commitment was present when construction contracts were awarded prior to the completion of the EAs, and construction of the road had begun by the time of the preparation of the biological assessment); Fund for Animals, 281 F.Supp.2d at 229-30 (concluding that the plaintiffs demonstrated a likelihood that they would succeed in proving that the agency had failed to take a hard look under NEPA when, prior to completing the EA, the agency had issued fourteen permits authorizing the killing of mute swans).
We also must identify the proper focus of the predetermination inquiry. Specifically, we must determine what evidence this court will examine in evaluating a predetermination claim. To support its claim of predetermination, Forest Guardians relies on evidence outside of the NEPA analysis itself to prove the FWS’s alleged bias. This evidence includes intraagency comments on the draft rule, agendas and minutes from meetings between the FWS and The Peregrine Fund, e-mail correspondence within the FWS and between the FWS and The Peregrine Fund, and the grant agreement between the FWS and The Peregrine Fund. In other words, Forest Guardians’ argument does not oblige us, as in Davis, to scrutinize the agency’s NEPA analysis for signs of bias.
Although the FWS rejects the idea that Forest Guardians’ evidence shows predetermination, it more fundamentally contends that Forest Guardians cannot properly rely on evidence beyond the environmental analysis itself. In advancing this argument, the FWS would have us follow the Fourth Circuit’s approach in National Audubon Society v. Department of the Navy, 422 F.3d 174, 198-99 (4th Cir.2005). In that case, the court declined to look at internal Navy e-mails and other documents “to advance the theory that the Navy had irreversibly decided [on its course of action] before it began its environmental impact analysis.” Id. at 198. The Fourth Circuit instead stated that a reviewing court “should generally restrict its inquiry to the objective adequacy of the EIS ... [and] should not conduct far-flung investigations into the subjective intent of an agency.” Id. The court explained that
[t]his rule is supported by common sense. Inquiries into subjective intent in the NEPA context open a Pandora’s box that courts should in most cases attempt to avoid. Psychoanalyzing an agency’s intent could restrict the open exchange of information within an agency, inhibit frank deliberations, and reduce the incentive to memorialize ideas in written form. It could also frustrate an agency’s ability to change its mind or refocus its actions, the very effect that NEPA was designed to encourage. See 40 C.F.R. § 1502.1 (“primary purpose” of an EIS “is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and actions of the Federal Government”). Finally, most federal agencies consist of numerous actors with varying levels of responsibility and different objectives; discerning one subjective intent is a speculative exercise at best.
Id. at 198-99 (second alteration in original). The court reasoned that “[w]here an agency has merely engaged in post hoc rationalization, there will be evidence of this in its failure to comprehensively investigate the environmental impact of its actions and acknowledge their consequences.” Id. at 199.
We respectfully decline, however, to follow the Fourth Circuit’s approach for several reasons. First, it is contrary to our precedent. In judging whether an agency has impermissibly committed itself to a course of action before embarking upon a NEPA analysis, we have previously looked to evidence outside of the environmental analysis itself. Recall that, in Davis, this court attributed the predetermination of private parties (who had contractually agreed to the issuance of a FONSI and who had been hired by the federal agency to prepare the EA) to the federal agency itself. 302 F.3d at 1112-13. In doing so, the Davis court examined the minutes of a meeting and a memorandum and concluded that the FONSI had been prepared prior to what was apparently nothing more than a pro forma public opportunity to comment on the EA. Id. In Lee, this court similarly analyzed the contents of several agreements between the U.S. Air Force and the German Defense Ministry. 354 F.3d at 1240.
Second, we conclude that the Fourth Circuit’s restrictive approach does not permit the predetermination inquiry to be conducted with sufficient analytic rigor. Specifically, we doubt the wisdom and efficacy of an approach that would limit the focus of the predetermination inquiry to the environmental analysis alone. That approach could fail to detect predetermination in cases where the agency has irreversibly and irretrievably committed itself to a course of action, but where the bias is not obvious from the face of the environmental analysis itself. We cannot be confident that, in every instance, the bias will be evident from the NEPA analysis. For example, even though the EA and FONSI in Metcalf were not facially flawed, “[i]t [was] highly likely that because of the Federal Defendants’ prior written commitment ... and concrete efforts ..., the EA was slanted in favor of finding that the ... proposal would not significantly affect the environment.” 214 F.3d at 1144. The purpose behind NEPA is to ensure that the agency will only reach a decision on a proposed action after carefully considering the environmental impacts of several alternative courses of action and after taking public comment into account. Accordingly, irrespective of the facial regularity of the agency’s NEPA analysis, we should not ignore relevant evidence that suggests that the agency may have violated the procedures established by NEPA, thereby contravening the statute’s overarching purpose.
We also need not be concerned that extending our review of relevant evidence beyond the NEPA analysis would have the detrimental effects alluded to by the Fourth Circuit on agency decisionmaking or the principled adjudication of predetermination claims. That is because the evidence must meet the rigorous standard of establishing that the agency has made “an irreversible and irretrievable commitment.” Id. at 1143 (internal quotation marks omitted). Thus, agency employees need not be afraid to conduct debates over e-mail because the agency will not be found to have conducted a biased NEPA analysis unless those communications fairly could be said to have the effect of binding the agency (as a whole) to an irreversible and irretrievable commitment to a course of conduct based upon a particular environmental outcome, thereby rendering any subsequent environmental analysis biased and flawed. Furthermore, because of the rigorous nature of the predetermination standard, not all voices will be accorded equal significance. The relevant voices must be those who would be situated by virtue of their positions to effectuate an irreversible and irretrievable commitment of the agency regarding the matter at hand. Accordingly, the stray comments of a low-level scientist or two— no matter how vigorously expressed— would be unlikely to render fatally infirm the otherwise unbiased environmental analysis of an entire agency. Therefore, we respectfully conclude that the Fourth Circuit’s concerns about the detrimental effects on agency deliberations and the principled adjudication of predetermination claims are not well-founded because the content of the communications would have to amount to an irreversible and irretrievable commitment of agency resources. In sum, we respectfully decline to follow the Fourth Circuit’s approach, as explicated in National Audubon Society.
After reviewing the relevant record evidence in this case, we conclude that there is no indication that the FWS made such an irreversible and irretrievable commitment to the release of captive-bred Falcons as a 10(j) nonessential experimental population. At most, the evidence demonstrates that the FWS had a preferred alternative and that The Peregrine Fund shared that preference. The record also reveals some internal disagreement among the FWS biologists on the advisability and propriety of the 10(j) rule. We do not dispute that some of the comments, particularly those in e-mails authored by one biologist, were intemperate. But the bottom line is that the evidence before us simply does not rise to the level required for this court to conclude that the FWS engaged in predetermination.
We specifically conclude that the grant agreement is not evidence of predetermination. If Forest Guardians had been able to prove that the FWS and The Peregrine Fund had entered into a binding contract firmly committing the FWS to the 10(j) outcome before its NEPA analysis, we would be faced with a similar set of circumstances to those in Metcalf and very likely would have reached a different conclusion than we do here. However, we do not agree with Forest Guardians’ argument that the grant agreement is such a contract. The grant agreement, which the two parties entered into before the NEPA analysis was completed, provides that the grant could be expanded upon the promulgation of the 10(j) rule. If the rule were not promulgated, then the work by The Peregrine Fund would be limited to activities such as research, captive breeding, and “[c]ontact[ing] landowners in New Mexico with regard to the potential establishment of an experimental nonessential 10(j) population.” J.A. at 462.
Forest Guardians contends that the provision allowing The Peregrine Fund to contact New Mexico landowners should be interpreted to mean that the grant “began funding work on a[n] experimental nonessential 10(j) population.” Aplt. Opening Br. at 53. We do not share that interpretation. That provision does not indicate that there was only one predetermined outcome. If the proposed rule was not promulgated, a nonessential experimental population would still be possible for the future and so landowner contact in New Mexico could later prove useful. Thus, because the record contains no evidence that the FWS failed to take a hard look at the environmental impacts of the 10(j) rule due to bias, we conclude that the FWS did not act arbitrarily and capriciously in conducting its NEPA analysis.
III. CONCLUSION
For the foregoing reasons, we reject Forest Guardians’ challenge to the FWS’s 10(j) rule, concluding that the FWS complied with the ESA, the APA, and NEPA in promulgating the rule. We therefore AFFIRM the district court’s denial of Forest Guardians’ petition for review of agency action.
. Since the time of the events at issue in this appeal, the Appellant Forest Guardians merged with another group and changed its name to WildEarth Guardians. In keeping with the practice of the district court and the parties, throughout this opinion we continue to refer to the Appellant as Forest Guardians rather than WildEarth Guardians.
. The Peregrine Fund also describes the Falcon as "a beautiful, charismatic raptor.” The Peregrine Fund Br. at 1 (hereinafter "TPF Br.”).
. With an exception not relevant here, the ESA states that "[t]he term 'endangered species’ means any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6).
. Critical habitat is defined as "the specific areas within the geographical area occupied by the species, at the time it is listed ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection,” as well as "specific areas outside the geographical area occupied by the species at the time it is listed ... upon a determination by the Secretary that such areas are essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A). Designation of areas as critical habitat requires federal agencies to ensure that their actions are not likely to result in the destruction or adverse modification of the critical habitat; agencies must both prevent extinction of the species and allow for its recovery so that the species may be removed from the list of endangered species ("delisted”). Ctr. for Native Ecosys. v. Cables, 509 F.3d 1310, 1321-22 (10th Cir.2007) (citing 16 U.S.C. §§ 1532(3), (5), 1536(a)(2)). Although "[c]ritical habitat shall be specified to the maximum extent prudent and determinable at the time a species is proposed for listing,” 50 C.F.R. § 424.12(a) (2008), designation of critical habitat is not appropriate if it "would not be beneficial to the species,” id. § 424.12(a)(l)(ii). Moreover, "[c]ritical habitat shall not be designated within foreign countries or in other areas outside of United States jurisdiction.” Id. § 424.12(h). Critical habitat may be established later, even if it is not previously designated. 16 U.S.C. § 1532(5)(B).
. Although we will discuss section 10(j) in greater detail, infra, we introduce the concept of a 10(j) rule by noting that section 10(j) of the ESA provides the Secretary with "flexibility and discretion in managing the reintroduction of endangered species.” Wyo. Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1233 (10th Cir.2000). "By regulation, the Secretary can identify experimental populations, determine whether such populations are essential or nonessential, and, consistent with that determination, provide control mechanisms {i.e., controlled takings) where the [ESA] would not otherwise permit the exercise of such control measures against listed species.” Id.
. The ESA provides that "[t]he term 'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). Congress’s goal in enacting the ESA unquestionably was to safeguard both endangered and threatened species. See id. § 1531(c)(1) ("It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.” (emphasis added)); Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1104 (10th Cir.2010) ("Listing a species as endangered or threatened under 16 U.S.C. § 1533 triggers the ESA’s provisions.”); Gordon v. Norton, 322 F.3d 1213, 1215 (10th Cir.2003) ("The ESA is designed to protect and conserve endangered and threatened species and the ecosystems upon which they may be conserved.” (emphasis added)); see also N.M. Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1282 (10th Cir.2001) ("The process set forth in the ESA for the protection of endangered and threatened species and the conservation of their ecosystem begins by granting the Secretary of the Interi- or, through the FWS, authority to list species in need of protection as either endangered or threatened.” (emphasis added)). However, the FWS has more regulatory leeway concerning the crafting and implementation of protections for threatened species. In particular, the ESA’s protections automatically extend by statutory mandate to species designated as endangered, but they do not do so with regard to species denominated as threatened; it is through administrative rulemaking that the latter receive a measure of the ESA’s protections — including protection against takings — and they do so only to the extent that the FWS considers the protections to be necessary and appropriate for their conservation. See Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 3 (D.C.Cir.1993) ("On its face, 16 U.S.C. § 1538(a)(1) applies its prohibitions, including the prohibition against takings, only to endangered species. However, the ESA allows the FWS to apply these prohibitions to threatened species, as well.”); Andrew A. Smith, Margaret A. Moote & Cecil R. Schwalbe, The Endangered Species Act at Twenty: An Analytical Survey of Federal Endangered Species Protection, 33 Nat. Resources J. 1027, 1038 (1993) ("Threatened species do not receive protection from taking automatically, but the Secretary may make any portion or all of section 9 [of the ESA] applicable as required for their conservation.”); see also 16 U.S.C. § 1533(d) ("Whenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.”).
. The FWS concluded that the experimental population was nonessential to the continued existence of the Falcon because: (1) there were three existing populations of Falcons (in eastern Mexico, in northern Chihuahua, Mexico, and in southern Texas), so "[t]he threat of extinction from a single catastrophic event” was decreased and any "loss of the experimented population w[ould] not appreciably reduce the likelihood of falcon survival in the United States,” and (2) "[a]ny [Falcon]s lost during the reintroduction attempt c[ould] be replaced through captive breeding.” Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. at 6823.
. Safe harbor agreements are voluntary agreements between the FWS and private landowners, whereby the landowners agree to contribute to the recovery of a threatened or endangered species in exchange for assurances that the FWS will not require any other management activities by the landowners without their consent. See FWS, Safe Harbor Agreements for Private Landowners, at 1 (Sept.2009), available at http://www. fws.gov/endangered/esalibrary/pdflharborqa.pdf.
. At the time of the proposed rule, The Peregrine Fund had forty-six pairs of breeding Falcons in its captive-breeding program. Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed. Reg. at 6821, 6822. From that population, 1004 Falcons had been released in southern Texas. Id. at 6821. Of those Falcons, at least thirty-nine pairs had been established in southern Texas and the adjacent area in Mexico. Id. Those pairs had produced more than 179 young. Id. The FWS concluded that these releases had established a wild population of Falcons in that area. Id. at 6822. One hundred and twenty-five Falcons had also been released on private ranches in western Texas, pursuant to a safe harbor agreement, and had successfully fledged young. Id.
. The FWS concluded that safe harbor agreements, which it relied upon in Texas, would not work well in this instance. “Despite the relative success of the falcon releases in Texas, [the FWS] believe[d] the Safe Harbor Agreements used to release falcons in Texas [we]re not the best mechanism for establishing falcons in New Mexico and Arizona.” Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. at 6824. Safe harbor agreements apply only to private lands; not only are public lands more predominant in New Mexico and Arizona, but the public lands in those states are more suited to the Falcon’s behavioral ecology than private lands. Id. The FWS therefore proposed promulgation of the 10(j) rule, covering both private and public lands, rather than relying on safe harbor agreements. Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. at 42,301.
. Under 16 U.S.C. § 1532(19), “taking” a Falcon means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” the Falcon.
. Forest Guardians was joined by Chihuahuan Desert Conservation Alliance, Public Employees for Environmental Responsibility, New Mexico Audubon Council, Sierra Club, and Southwest Environmental Center in filing this action against the FWS. Because they are not parties to this appeal, we refer only to Forest Guardians.
Even though this action was originally filed in the form of a complaint, the parties later agreed to proceed as if it properly had been filed as a petition for review of agency action. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir.1994). On October 22, 2007, Forest Guardians filed an opening brief on the merits of its petition for review, arguing that it was entitled to judgment on all of its claims.
. Although the action originally only encompassed a challenge to the FWS's failure to respond to the critical habitat petition, Forest Guardians amended its original complaint after the 10(j) rule was finalized to include the instant challenges to the rule.
. Because the district court upheld the 10(j) rule, it denied as moot Forest Guardians' petition for review as to the claims involving the designation of critical habitat in New Mexico and Arizona. The parties correctly conceded that those states cannot be designated simultaneously as a nonessential experimental population area and as critical habitat for the Falcon. See 16 U.S.C. § 1539(j)(2)(C)(ii).
. In reviewing the evidence, we reject Forest Guardians’ contention that we should discount evidence obtained by the FWS or The Peregrine Fund. Forest Guardians relies on Exxon Shipping Co. v. Baker, - U.S. -, 128 S.Ct. 2605, 2626 & n. 17, 171 L.Ed.2d 570 (2008), to argue that we must give greater weight to the research of independent scientists rather than the research of scientists employed by the FWS or The Peregrine Fund. Forest Guardians urges that we should view evidence proffered by the FWS and The Peregrine Fund with "a substantial degree of skepticism” because it is "self-serving,” Aplt. Opening Br. at 40 n. 29, and "there is absolutely nothing here other than [The Peregrine Fund] and its affiliates singing the company song,” Aplt. Reply Br. at 8.
However, Baker is distinguishable from the case at hand. In Baker, the Supreme Court stated that it was "aware of no scholarly work” on the propriety of the award of punitive damages for the Exxon Valdez incident under maritime law. 128 S.Ct. at 2626. The Court went on to note that it was aware of some literature "examining the predictability of punitive awards by conducting numerous 'mock juries,’ " but "[b]ecause this research was funded in part by Exxon, [it] decline[d] to rely on it.” Id. at 2626 n. 17. By contrast, this case involves scientific studies and opinions by environmental groups and governmental agencies and is a far cry from Exxon’s commercial support of research funded to aid Exxon in arguing against an adverse large punitive damage award. See Adam Liptak, From One Footnote, a Debate Over the Tangles of Law, Science and Money, N.Y. Times, Nov. 24, 2008, at A16, available at http://www. nj4imes.com/2008/ll/25/washington/25bar. html?_r=l. Furthermore, "agencies are entitled to rely on their own experts so long as their decisions are not arbitrary and capricious.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1173 n. 12 (10th Cir.1999) (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)).
. The FWS and The Peregrine Fund analogize the lone Falcon dispersers to the individual wolves in Wyoming Farm Bureau Federation that dispersed over long distances and occasionally entered the nonessential experimental population area. The FWS argues that "the fact that dispersers can enter and have entered the [nonessential experimental population] area plainly does not indicate that a naturally occurring population of Falcons sustains itself in this area.” Aplee. Br. at 41. In promulgating the rule at issue, the FWS explained that
[e]ven though falcons from Mexico may enter New Mexico occasionally, the 10th Circuit Court in the wolf case (Wyoming Farm Bureau Federation v. Babbitt) supported the use of the 10(j) designation under very similar circumstances of occasional, low frequency contact. In over 50 years, we know of only one pair of successfully reproducing falcons in New Mexico. This one occurrence does not indicate that there is self-sustaining, regular interbreeding occurring between falcons in New Mexico and those in Mexico. The single pair of falcons that successfully reproduced once in 2002, after a 50-year absence, is not self-sustaining, not a group, and not in common spatial relationship with the group of approximately 25 to 35 breeding falcon pairs in the Mexican State of Chihuahua, 160 km (100 mi) south of the United States border. These Mexican birds appear to be self-sustaining and interbreeding, even though the population is not expanding. In addition, there is a significant gap between the location of the pair in the United States and the most northern breeding pair in Chihuahua, and even more distance to the main cluster of breeding pairs there.
Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. at 42,307.
. We take this opportunity to clarify the meaning of our statement in Davis that prejudgment (i.e., predetermination) “diminishes the deference owed to the federal defendants in our review of their decision to issue a FONSI rather than an EIS.” 302 F.3d at 1112. We caution that Davis's reference to “deference" should not be taken to mean that the arbitrary and capricious standard in the APA does not apply to this type of claim. To the contrary, our discussion of the standard of review in Davis quite clearly indicates that we review an agency’s NEPA analysis and its potential bias “under the APA’s deferential 'arbitrary and capricious’ standard.” Id. at 1111 (quoting 5 U.S.C. § 706(2)(A)). What Davis meant was that, if an agency predetermines the result of its NEPA analysis, this court is more likely to conclude that the agency failed to take a hard look at the environmental consequences of its actions and, therefore, acted arbitrarily and capriciously.
. To avoid any possible confusion, we note that our substantial alignment with the Ninth Circuit is the product of our clarification of the import of our own case law. We do not adopt here the Ninth Circuit's standard, as articulated in Metcalf. For example, Metcalf speaks in terms of commitment of “resources” and subsequent Ninth Circuit authority has suggested that an arguably narrow construction of that term is appropriate. See Wildwest Inst. v. Bull, 547 F.3d 1162, 1168 (9th Cir.2008) (discussing Metcalf and noting that “[o]ur cases have focused on the commitment of natural resources, not necessarily the agency's financial resources”). However, because we are applying our own precedent, and not adopting the Ninth Circuit’s standard, we are not to any extent bound by the Ninth Circuit’s interpretation of its standard, including the interpretative analysis in Wild-West Institute.
. Furthermore, we note that other courts have examined similar evidence, including emails, letters, memoranda, meeting minutes, and statements made at a press conference — as well as the agency's issuance of permits and entrance into binding contracts — to determine if an agency predetermined the outcome or otherwise acted in bad faith in conducting the NEPA analysis. See, e.g., Wildwest Inst., 547 F.3d at 1168-69; Native Ecosys. Council, 304 F.3d at 892-93; Coal. Against a Raised Expressway, Inc. v. Dole, 835 F.2d 803, 807-08 (11th Cir.1988); Envtl. Def. Fund, Inc. v. Corps of Eng’rs of the U.S. Army, 492 F.2d 1123, 1129 (5th Cir.1974); W. Watersheds Project v. Bureau of Land Mgmt., 552 F.Supp.2d 1113, 1125-26 (D.Nev.2008); Colo. Wild, Inc. v. U.S. Forest Serv., 523 F.Supp.2d 1213, 1230 (D.Colo.2007); Int'l Snowmobile Mfrs. Ass’n, 340 F.Supp.2d at 1260-61; Fund for Animals, 281 F.Supp.2d at 229-30.
. The biologist wrote in a string of e-mails that the 10(j) rule was “a done deal,” that the rule was proposed merely to placate The Peregrine Fund, and that, because the FWS would lose a court challenge to the rule, ”[i]n the long run, [the head of The Peregrine Fund] probably needs to think about a Kentucky Fried Falcon chain” because "there won’t be much else he can do with the captive bred birds.” J.A. at 62. But no matter how inflammatory, an individual’s comments remain immaterial to the predetermination analysis unless they (1) may fairly be attributed to the agency, and (2) tend to reflect the agency’s irreversible and irretrievable commitment to a course of action — in contemplation of a particular environmental outcome— even before the requisite environmental analysis has been completed. No tenable arguments could be advanced here to this effect based upon the comments at issue.
For that same reason, we cannot find that an e-mail authored by a biologist working for The Peregrine Fund, stating that the FWS "promised” the 10(j) outcome, is enough to bind the FWS or prove that the FWS had in fact made an irreversible and irretrievable commitment. There is no comparable evidence in the record like that in International Snowmobile Manufacturers Ass’n, for example, where the Assistant Secretary for Fish and Wildlife and Parks had declared at a press conference that the agency was firmly committed to a course of action (banning snowmobiles in Yellowstone National Park) before completing its NEPA analysis. 340 F.Supp.2d at 1259-61. In that case, the court concluded that "it does not seem that the [agency] could have issued any other rule.” Id. at 1261.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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GORSUCH, Circuit Judge,
concurring.
I am pleased to concur in the court’s opinion. I write to note only two minor points.
First, under § 706 of the APA, an agency’s NEPA analysis of course may not be arbitrary or capricious. As the majority notes, this court has previously held that one way an agency can fail § 706’s test is if the agency “predecides” the outcome of a NEPA analysis irreversibly and irretrievably. See Maj. Op. at 714. In assessing Forest Guardians’ predetermination claim today, the court looks beyond the four corners of the Fish and Wildlife Service’s environmental assessment (“EA”) document to other evidence in the administrative record. In doing so, however, the court does not endorse the practice of looking outside the administrative record itself, at least absent “extremely limited circumstances,” such as where a party first makes a predicate “ ‘strong showing of bad faith or improper behavior.’” Citizens for Alternatives to Radioactive Dumping v. U.S. Dep’t of Energy, 485 F.3d 1091, 1096 (10th Cir.2007) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)) (other internal quotation marks omitted).
Second, one of our sister circuits seems to have suggested that our review in cases like this one should be restricted further still, to the EA itself, and not take account even of other materials in the administrative record. See Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 198-99 (4th Cir.2005). The majority suggests that we have previously rejected this approach in Davis v. Mineta, 302 F.3d 1104 (10th Cir.2002), and Lee v. U.S. Air Force, 354 F.3d 1229 (10th Cir.2004). See Maj. Op. at 716-17. As it happens, though, Davis and Lee did not analyze or resolve the question; in both cases, the parties and this court simply proceeded on the premise that no legal impediment stood in the way of examining the full administrative record when deciding a predetermination claim. In these circumstances, the legal question posed by National Audubon remains an open one in this circuit. See United States v. Romero, 491 F.3d 1173, 1177 (10th Cir.2007) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”) (quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925)); cf. Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (“[S]ince we have never squarely addressed the issue, and have at most assumed the applicability of the Chapman standard on habeas, we are free to address the issue on the merits.”). Neither is the resolution of the question essential to our decision today. This is because, as the majority amply explains, Forest Guardians’ claim in this case fails regardless whether we restrict our analysis to the objective adequacy of the Fish and Wildlife Service’s EA (as the Service and National Audubon would have it) or consider other administrative record materials beyond the EA itself (as Forest Guardians prefers). See Maj. Op. at 717-19.
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MOORE, Circuit Judge:
Three chemical companies, Hooker Chemicals and Plastics Corporation, Stauffer Chemical Company and Monsanto Company (“Petitioners”), in an action against Russell E. Train, Administrator of The Environmental Protection Agency (“EPA”), seek by petition to review and set aside regulations establishing effluent limitation guidelines for the phosphate manufacturing industry, issued on February 20, 1974, by the EPA pursuant to the Federal Water Pollution Control Act Amendments (“Act”) 33 U.S.C. § 1251, et seq.
Although Petitioners contend that this Court lacks jurisdiction, asserting that the regulations must be initially reviewed in the District Court pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06, they have filed their petition as a “protective measure” to avoid the risk of losing their right to challenge the regulations for failure to file the petition within 90 days of promulgation as required by § 509(b) of the Act.
In 1972, Congress, anxious to end pollution of our Nation’s waters, enacted the Act. It was radically different from previous laws on the subject, and drastically changed the national approach to the control of water pollution. Enforcement of predecessor statutes, which had relied on water quality standards as the primary method of pollution control, had been largely unsuccessful. It was too difficult to establish the necessary correlation between effluent discharges by particular sources and the quality of the body of water into which the effluent flowed. To solve the dilemma the Act, while retaining water quality standards, predicated pollution control on the application of control technology on the plants themselves rather than on the measurement of water quality.
In the Act, Congress declared its sweeping and praiseworthy goals of which the following are representative: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”; to eliminate discharge of pollutants by 1985; to achieve by July 1,1988, “whereever attainable”, a water quality which would provide for the protection of fish, shellfish and wildlife; to develop technology necessary to eliminate discharge of pollutants, and to protect “the primary responsibilities and rights of States” to eliminate pollution.
The Act distinguishes between existing effluent dischargers and those constructed after the promulgation of the Act’s operative regulations. For the “new” effluent dischargers § 306 of the Act requires the Administrator to promulgate regulations which “reflect the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology.” When the “new” dis-charger obtains a permit which incorporates as permit conditions the applicable “new” source regulations, compliance with the permit constitutes compliance with the Act.
The same permit mechanism applies to existing effluent discharges, but the Act prescribes two-tiered restrictions.
Section 301(b)(1)(A) provides:
“[i]n order to carry out the objective of this Act, there shall be achieved . . not later than July 1, 1977, effluent limitations for point sources . . . which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 1314(b) [§ 304(b)]
Stiffer restrictions are mandated to commence not later than July 1, 1983. Section 301(b)(2)(A) provides that:
“In order to carry out the objective of this Act, there shall be achieved . not later than July 1, 1983, effluent limitations for categories and classes of point sources . . . which . . . shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 1314(b)(2) [§ 304(b)(2)] . .
Section 304(b) to which both parts of § 301 refer states, inter alia:
“For the purpose of adopting or revising effluent limitations under this Act the Administrator shall . . . publish within one year of enactment of this title, regulations, providing guidelines for effluent limitations. . . . Such regulations shall—
(1)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable . . . [and]
(B) specify factors to be taken into account in determining the control measures and practices to be applicable to point sources . . . within such categories or classes . . . .”
For 1977 limitations, the factors to be considered are:
“the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application . . . the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate.”
Comparable factors are specified for 1983 limitations.
JURISDICTION
The first question in this case is whether we have subject matter jurisdiction of the controversy. Under § 509, the jurisdictional section of the Act, review of the Administrator’s action “in approving or promulgating any effluent limitation or any other limitation under section 1311 [§ 301], 1312 [§ 302], or 1316 [§ 306]” and “in issuing or denying any permit under section 1342 [§ 402]” may be had in the Courts of Appeals. The status of the contested regulations as effluent limitations promulgated under § 301 is the jurisdictional linchpin. The parties’ views on that issue vary with their views of the way the Act is to be administered for existing point sources.
Petitioners argue that we lack jurisdiction because the regulations were promulgated exclusively under § 304, which § 509 omits from the enumeration of sections whose regulations are reviewable initially in the Courts of Appeals. They arrive at this conclusion by a process of elimination. The regulations assertedly were not promulgated pursuant to § 301, which is merely declarative of the Act’s objectives and the time limits for their achievement. Those objectives are effectuated pursuant to the authority conferred by other sections of the Act. The “effluent limitations” mentioned in § 301, they claim, are only established during a case-by-case permit-application procedure. In that process, permit-grantors apply to individual effluent discharges the § 304 guidelines which identify for 1977 “the degree of effluent reduction attainable through the application of the best practicable control technology” and for 1983 “the degree of effluent reduction attainable through the application of the best control measures and practices achievable.” Since the Administrator does not need guidelines to guide himself, the intention of Congress, they argue, was to guide the permit-issuing official or agency who, in issuing permits for specific plants, would thereby create the effluent limitations for that plant.
Thus, since the regulations were not promulgated pursuant to § 301, Petitioners conclude that the regulations are “effluent limitation guidelines” promulgated solely pursuant to § 304, a section not included in the reviewable sections listed in § 509. The record, upon which the regulations are based, is steeped in technological data and the only section dealing with specific technology and factors to be considered in determining controls and practices applicable to point sources is § 304.
EPA claims that the Administrator has combined in the regulations “efflüent limitations” promulgated pursuant to § 301 and “effluent limitation guidelines” promulgated pursuant to § 304 and that Congress intended that EPA promulgate § 301 “effluent limitations” by regulation before the permit-granting procedure is initiated. The Administrator promulgated § 304 “effluent limitation guidelines” which assertedly define in concrete terms the abstract norms of § 301 “effluent limitations”. These definitions are then incorporated into § 301 “effluent limitations” and the limitations are then incorporated into permits by permit-grantors. No express statutory authority supports this conclusion except that the effluent limitations of § 301 are to be “as defined by the Administrator pursuant to section 304(b).” On this fragile nexus of § 304 to § 301 to § 509, jurisdiction in the Court of Appeals is asserted to rest.
Seeking guidelines of our own from the other Courts of Appeals which have had to cope with this problem of jurisdiction, a brief review of recent decisions from the Third, Fourth, Seventh and Eighth Circuits is a useful introduction to our discussion.
In CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975), the Eighth Circuit concluded that “the guidelines [§ 304] for existing plants cannot be directly reviewed” and accordingly dismissed the petitions for review. The Court buttressed its opinion by “legislative history [which] confirms that Congress intended to enforce uniformity of conditions for existing plants, not by authorizing the promulgation of regulations under § 301, but by granting the EPA power to issue permits and to veto state-issued permits which do not comply with guidelines promulgated under § 304(b).”
Next came the Third Circuit with American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027 (3rd Cir. 1975) (November 7, 1975). There, a group of steel companies sought to review regulations entitled “Effluent Guidelines and Standards, Iron and Steel Manufacturing Point Source Category” promulgated by the Administrator as effluent limitations. The Court acknowledged that the “first, and most basic, challenge is to the Administrator’s very power to promulgate nationwide single number effluent limitations for existing point sources” and found that the answer “which goes to the very heart of the administration of the Act, depends upon our resolution of the interrelationship of three key sections of the Act— 301, 304 and 402.” The petitioners there had contended (as do Petitioners here) that limitations could only be established by the permit-granting authorities which would apply § 304 guidelines in issuing permits on a plant-by-plant basis under § 402. Although the Court recognized that § 301(b) “does not explicitly authorize the Administrator (or anyone else) to promulgate regulations establishing such limitations”, it concluded that in light of the statutory scheme and legislative history such power could be “inferred”. This inference was strengthened, in the Court’s opinion, by the “repeated reference to such limitations” as being “under” or “pursuant” to § 301. Accordingly, the Third Circuit disagreed with the Eighth’s conclusion in CPC Inter national and held that EPA did have the power to issue limitations under § 301. The Court concluded that “a joint reading of sections 304 and 301 lends support for the Administrator’s position” and accepted § 509 initial jurisdiction.
A few days later (November 24,1975) the Seventh Circuit in American Meat Institute v. Environmental Protection Agency, 526 F.2d 442 (7th Cir., 1975), solved the problem of limitations or guidelines by flatly declaring at the outset “This is a review of effluent limitations promulgated by the Administrator . . . ” The parties agreed that the Court had jurisdiction but amici attacked the Administrator’s authority under § 301 to issue limitations. As in CPC International and American Iron and Steel, it was argued that individual effluent limitations were only to be established by the permit-issuing process of § 402, using § 304(b) guidelines as the criteria.
The Court rejected CPC International and held it had authority to review the regulations under § 509 The Court was influenced, as was the Third Circuit, by the many statutory references to § 301 and by EPA’s statement in preambles to both proposed and final regulations that they were promulgated “pursuant to § 301 and § 304(b)”. The Court believed that EPA’s position was more consistent with Congressional intent and concluded that EPA “had the authority to issue effluent limitations under § 301” and, by implication, that the regulations were both § 304 guidelines and the § 301 “limitations”.
On December 30,1975, the Fourth Circuit decided E. I. DuPont de Nemours, Inc. v. Train, 528 F.2d 1136 (4th Cir. 1975), cert. granted, - U.S. -, 96 S.Ct. 1662, 48 L.Ed.2d 174, 44 U.S.L.W. 3592 (1976) (de Nemours I). The District Court had held that it lacked jurisdiction to hear a petition to review regulations purporting to establish effluent limitations. On an appeal limited to the jurisdictional issue, the Administrator claimed that he had “combined his rulemaking authority under this section [§ 301] with that specifically provided for under § 304(b)”. The petitioners took the position that the regulations could not have been issued under § 301 or a combination of § 301 and § 304(b), but only under § 304(b). They concluded that since the Act did not confer review jurisdiction of § 304 regulations on the Court of Appeals, the regulations could only be reviewed initially in the District Court. The Fourth Circuit affirmed the District Court’s rejection of petitioners’ arguments. It held that Courts of Appeals have exclusive jurisdiction to review the regulations. The court was influenced by the fact that in the same section which mentioned § 301 effluent limitations, the Act specifically authorized initial Court of Appeals review of § 306 (new source) regulations. Therefore, on an ejusdem generis basis, it concluded that § 301, concerned with existing sources, should be treated similarly and that review of regulations relating to existing sources should be in the same court as new source regulations. To attain this result, the Court concluded that “any action taken by the Administrator under § 304(b) should properly be considered to be pursuant to the provisions of § 301 and therefore, reviewable by this court under § 509.”
Subsequently, the same Court, although primarily dealing with specific regulations, well summarized the jurisdictional problems presented for resolution in saying: “The conflict among the circuits emphasizes the confusion caused by this poorly drafted and astonishingly imprecise statute.” To this criticism may well be added the comments of Judge Adams in his concurring opinion in American Iron and Steel Institute: “The failure to provide a clear procedural statutory structure on so basic a matter in the administration of the Act is disquieting. * * * Under these circumstances, neither the states nor the Administrator, nor the industries and municipalities which are to be regulated by the Act, may be confident which agency possesses the legal authority to promulgate effluent limitations.”
Judge Adams’ point is well taken. The jurisdiction question and its subsidiary issues admit of no easy answer. The Act states neither that effluent limitations are to be promulgated in permits nor that they are to be promulgated independently by regulations. Indeed, the Act is “vague, uncertain and inconsistent.”
The legislative history compounds the difficulty. In their briefs, the parties have relied on a two volume, 1766 page work entitled “Legislative History of the Water Pollution Control Act Amendments of 1972” (“Leg. Hist.”), which, as the title implies, sets forth the Congressional debate. From this history may be deduced equally persuasive arguments that on the one hand Congress rejected plant-by-plant proceedings; and that on the other, Congress envisioned limitations adjusted to each specific plant. In short “statements can be found to uphold almost any position which one cares to take.”
No doubt this problem of statutory interpretation was unavoidable under the circumstances. The very magnitude of the task undertaken by Congress and delegated to the EPA for fulfillment probably accounts for the lack of clarity. EPA’s task was not aided by a Federal court decision in a suit brought by NRDC which directed that EPA complete the guidelines by a final deadline. Natural Resources Defense Council v. Train, 6 ERC 1033 (D.D.C.1973), aff’d in part, 166 U.S.App.D.C. 312, 510 F.2d 692 (1975). The force of the adage “haste makes waste” is not lessened by that direction. But nonetheless, laws should be written so that those burdened by compliance therewith will know that with which they must comply, and the difficulty of the question posed unfortunately does not relieve the courts of the obligation to endeav- or to answer it.
Against this background of puzzling statutory language, ambiguous legislative history and conflicting court decisions, we must decide whether the contested regulations were promulgated pursuant to §§ 301 and 304 or were promulgated exclusively pursuant to § 304. Since the statutory language is devoid of plain meaning, we turn briefly to the legislative history of the Act and the underlying Congressional purpose to be gleaned therefrom. That history supports the conclusion that effluent limitations were to be promulgated apart from the permit-granting process.
Senator Bentsen, a member of the Committee which reported out the original Senate version of the Act, stated during the Senate debate:
“In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1976 [now July 1, 1977], which comply with specifically defined levels of effluent control and treatment. As defined in section 301(b)(1) of the bill, and as elaborated in the regulations which we anticipate the Administrator shall issue pursuant to section 301 and 304, these . . goals shall be at least . . . the ‘best practicable control technology currently available’ for point sources. . . . ” Leg. Hist, at 1283. (emphasis added)
Further support is found in the House of Representatives’ Committee on Public Works’ report. In discussing the original House version of the Act, it states:
“The bill establishes a Federal-State discharge permit program. All permits issued under this program shall be consistent with the specific requirements of the bill, including effluent limitations or other limitations, national standards of performance, toxic and pretreatment standards, and ocean discharge guidelines”. Leg. Hist, at 761. (emphasis added)
In discussing the Senate version of the Act the Senate Report reiterated:
“It is the Committee’s intention that pursuant to subsection 301(b)(1)(A) and Section 304(b) the Administrator will interpret the term ‘best practicable’ when applied to various categories of industries as a basis for specifying clear and precise effluent limitations. . . . ” Leg. Hist, at 1468. (emphasis added).
After examining the Conference Report, members of both the House and Senate were satisfied that the Conference version of the Act conformed to this scheme. During Senate consideration of the Conference Report, Senator Muskie, the Act’s principal author, explained:
“It is the intention that pursuant to subsection 301(b)(1)(A) and Section 304(b), the Administrator will interpret the term ‘best practicable’ when applied to various categories of industries as a basis for specifying clear and precise effluent limitations to be implemented by July 1, 1977.” Leg. Hist, at 169. (emphasis added)
See, also, comments of Senator Bayh, Leg. Hist, at 216. The Conference Report itself states:
“The conferees intend that the Administrator or the State, as the case may be, will make the determination of the economic impact of an effluent limitation on the basis of classes and categories of point sources, as distinguished from a plant by plant determination.” Leg. Hist, at 304.
Representative Clausen in commenting upon the utility of the studies mandated by subsection 104(t) observed:
“The Administrator should consider the results of these studies in promulgating regulations not only under Section 316 but also under other sections of the act where thermal discharges may be regulated, including section 301 on effluent limitations. . . . ” Leg. Hist, at 264 (emphasis added).
Representative Dingell stated:
“[A] plant-by-plant determination of the economic impact of an effluent limitation is neither expected, nor desired, and, in fact, it should be avoided.” Leg. Hist, at 255.
These citations suffice to demonstrate that the draftsmen of the Act intended the promulgation of effluent limitations by regulations apart from the permit-granting process. Furthermore, the Administrator is authorized “to prescribe such regulations as are necessary to carry out his functions under this Act.” We are persuaded that he did so pursuant to §§ 301 and 304 of the Act. Thus, we believe that we are adhering to Congressional purpose and intent in holding that we have jurisdiction to review these regulations under § 509.
Section 304 structures the procedure and identifies the criteria for consideration whereby the Administrator in the context of industrial categories of existing effluent dischargers gives concrete definitional content to effluent limitations mandated by § 301. As we have previously observed, § 301(b)(1)(A) mandates for 1977 the achievement of effluent limitations “which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b).” Section 304(b)(1)(B) outlines the factors to be taken into account by the Administrator “relating to the assessment of best practicable control technology [1977] currently available to comply with subsection (b)(1) of section 301 of this Act . . . .” It requires that, inter alia, the age of the equipment and facilities involved, the process employed, and “such other factors as the Administrator deems appropriate” shall be included in the “consideration”, i. e., determination, of what constitutes the “best practicable technology”. After assessing each of these factors in the context of every particular industrial category, the Administrator translates the standard “best practicable control technology” into objective terms, and determines “the degree of effluent reduction attainable through the application of [that technology].” The ultimate result is synonymous with § 301’s mandated effluent limitations. For 1983 effluent limitations requiring the application of “best available technology economically achievable” the legislative history indicates that an identical relationship and procedure obtains.
Petitioners’ challenges are aimed at the regulations taken as a whole and individually. An appreciation of these claims requires some familiarity with the steps followed in the promulgating process and the resulting administrative record.
GENERAL METHODOLOGY EMPLOYED BY EPA
Prior to the publication of the Advance Notice of Public Review Procedures, the EPA hired General Technologies Corporation, a contractor familiar with the phosphate industry, to survey the technological feasibility and economic cost of eliminating water pollution in the industry. General Technologies prepared a draft which included tentative recommendations of effluent limitation guidelines and “new source” regulations. Copies of the report were mailed to interested institutions for comment. On August 6, 1973, EPA issued its Advance Notice of Public Review Procedures which, inter alia, informed the general public that the draft report was available for inspection and that EPA planned independently to examine the industry.
On September 7, 1973, EPA published a notice that it was proposing effluent guidelines for the phosphate manufacturing industry pursuant to several sections of the Act, including §§ 301 and 304(b) and (c). For legal justification of EPA action concerning existing point sources, the notice specifically referred to § 301(b) as requiring achievement of effluent limitations by the respective July 1, 1977 and July 1, 1983 dates “as determined in accordance with regulations issued by the Administrator pursuant to section 304(b) of the Act.” 38 Fed.Reg. 24461-70 (1973). Shortly after the notice of proposed rulemaking, EPA issued a Draft Development Document which disclosed its “general methodology” and recited its proposed findings and conclusions.
After reviewing extensive comments from industry members, including some of the Petitioners in this case, who recommended alterations and amendments, on February 20, 1974, the EPA published its regulations in final form. The notice asserted that §§ 301, 304(b) and (c), 306(b) and (e), and 307(c) constituted the source of statutory authority.
A Final Development Document dated January 1974 was prepared by General Technologies in cooperation with EPA staff and interested chemical companies including some of the Petitioners. The document is a comprehensive 154-page report entitled “Effluent Guidelines and Standards 39 F.R. No. 35 Part 422 Effluent Limitations Guidelines”. The final record supplement is a 50-page report entitled “Economic Analysis of the Proposed Effluent Guidelines — Industrial Phosphate Category” prepared by Arthur D. Little, Inc. A final “Economic Analysis of the Effluent Guidelines” has issued, dated November, 1974. It is part of the Appendix, but none of the parties rely on it.
COMPLIANCE WITH ADMINISTRATIVE PROCEDURE ACT
Petitioners argue that EPA violated § 4(b) and (c) of the APA since the published notices and regulations assertedly omitted a “reference to the legal authority under which the rule is proposed”, and “a concise general statement of their basis and purpose.”
We disagree. Although the notice of proposed rulemaking and publication of final regulations might be argued to have self-serving characteristics, they adequately referred to and summarily sketched EPA’s reliance upon § 301 and that section’s interrelationship with § 304. See 38 F.R. 24470 (1973). Furthermore, the preamble to the regulations succinctly reviews the history of the proceedings, refers to the records of EPA’s methodology and fact findings, cites the regulations’ legal basis, and then outlines both the significant comments received and the EPA’s. response. 39 F.R. 6580 (1974). Accord, E. I. DuPont de Nemours v. Train, 541 F.2d 1018, at 1025 (4th Cir., 1976) (“de Nemours II”).
ALLEGED FAILURE TO SPECIFY FACTORS
Petitioners next assert that the regulations generally violate § 304(b)(l)(B)’s purported requirement that the regulations specify factors to be taken into account in determining the control measures and practices to be applied to point sources. In the preamble to each of the individual regulations, the EPA states that in establishing them, it considered information concerning, inter alia, age and size of plant, products produced, and available treatment technology. Although Petitioners may quarrel with EPA’s conclusions and rationale for the regulations, the factors considered appear in EPA’s own statement that:
“In identifying such technologies, various factors were considered. These included the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact . . . and other factors.
The data upon which the above analysis was performed included EPA permit applications, EPA sampling and inspections, consultant reports, and industry submissions.” 38 F.R. 24471 (1973)
ESTABLISHMENT OF RANGES
The Petitioners next argue that the entire set of regulations is invalid because EPA failed to establish permissible “ranges” of discharges within each category or subcategory of existing point sources, and, instead, improperly promulgated single number maximum discharge levels. We disagree with this argument and believe that whenever Congress spoke of “ranges” in the debates over the Act, it meant only the spectrum comprised of varying discharge levels on a subcategorical, rather than individual, basis, de Nemours II, supra at 1029. Although variances are conceivable at the permit-granting stage (see our accompanying opinion Natural Resources Defense Council v. Environmental Protection Agency, 2 Cir., 537 F.2d 642), Congress intended that the regulations establish a single discharge level for a given subcategory. This is implicit in the Congressional choice of the superlative form in the statutory language requiring achievement of the degree of effluent reduction attainable by application of “best” technology-
SPECIFIC REGULATIONS
(a) The “Substantive” Standard of Review
Under § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), agency action in rulemaking proceedings is to be sustained unless “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. This standard was recently explained in American Meat Institute, as follows:
“This standard requires us to determine whether ‘the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ [citation omitted] We are not to set the effluent limitations ourselves or substitute our judgment for the agency’s, [citations omitted] Rather, we are to determine whether the limitations set by the agency are ‘the result of reasoned decisionmaking.’ [citations omitted] If the basis stated by the agency for its decision is insufficient, we may not supply another that the agency itself has not chosen to rely on. [citations omitted]” American Meat Institute, supra at 452-53.
Mindful of these requirements, we may proceed to an analysis of the individually challenged regulations.
(b) 1977. Effluent Limitations Guidelines for Phosphorus Manufacturers
For phosphorus manufacturers, the EPA promulgated 1977 limitations which restrict the discharge of suspended solids, elemental phosphorus, fluoride and total phosphorus (“phosphates”). 40 C.F.R. § 422.12. Petitioners have confined their challenge of the regulation to the fluoride and phosphates restrictions. To properly evaluate their contentions, it is necessary to trace the development of these regulations.
When the 1977 regulation for phosphorus manufacturers was first proposed, it completely prohibited discharges of phosphates and fluorides. During the comment period, EPA received a report from the Effluent Standards and Water Quality Information Advisory Committee (“ESWQIAC”) in which ESWQIAC objected to the zero discharge limitation. It argued that, of the two plants relied upon by EPA, plant no. 181 and TVA, the latter did not achieve zero discharge of phosphate, or fluoride. Consequently, ESWQIAC reasoned that the zero discharge standard was supported by only one plant, Hooker’s no. 181, and that such a limited data base was unreasonable. As an alternative to the zero discharge standard, the advisory committee suggested a permissible range of discharge for each effluent. Other parties voiced analogous objections to the zero discharge standard for the effluents. The upshot was a revised standard based upon data from plant no. 181 and two other phosphorus-producing plants, nos. 028 and 159, whose data had not been considered when the standards had first been proposed. The following table depicts for comparison the discharge rates of Fluorides and Phosphates of the three plants, the average discharge rate of the three plants and the discharge rate as promulgated by the EPA in the final regulation for phosphorus manufacturers for 1977. 40 C.F.R. § 422.12.
Final Reg.
Hooker Monsanto Monsanto Average Standard
Plant 181 Plant 028 Plant 159 Discharge Discharge
Fluorides 0 0.1 0.04 0.05 0.05
Phosphates 0 0.039 0.26 0.10 0.15 (as Phosphorus)
(Data expressed in terms of pounds of pollutants per 1000 pounds of phosphorus)
As is apparent from the table, EPA eschewed ESWQIAC’s recommended range and adhered to its single number effluent limit principle for phosphate and fluoride effluent. In the preamble to the final regulations, the EPA stated:
“The ESWQIAC limits include two additional phosphorus plants as exemplary. EPA has since accepted these plants as exhibiting best practicable control technology and has allowed a discharge based upon the data in the Development Document for the treatment capabilities of these plants. Therefore, although the Agency does not agree with the underlying rationale for establishing the ESWQIAC limits the data in the Development Document does support the specific limits proposed by ESWQIAC.” 39 F.R. 6581 (1974). (emphasis added)
Petitioners raise several objections to the final regulation. First, they assert that in determining the “effluent reduction attainable” and the “best practicable technology applicable”, EPA impermissibly narrowed consideration of production facilities to include only those plants determined to be exemplary. Thus, the Petitioners challenge EPA’s authority to define best practicable as:
“the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category or subcategory. This average is not based upon a broad range of plants within an industrial category or subcategory, but is based upon performance levels achieved by exemplary plants.” 39 F.R. 6580 (1974).
Petitioners’ argument is unpersuasive. The Legislative History of the Act clearly substantiates the EPA’s definition of best practicable and its concomitant promulgating methodology. Indeed, the definition adopted by EPA almost mirrors the pertinent portion of the House Report which bases “best practicable” on “the average of the best existing performance” of various plants. Leg.Hist. at 1468. This definition is also confirmed by the individual report of Senator Muskie which was appended to the Conference Report. Leg.Hist. 169-70. A consideration of plants which is confined to those that are characterized as “exemplary” is not a cognizable deviation from the norm of “best existing performance”. American Meat Institute, supra, at 453, 462; American Iron & Steel, supra, at 1057.
In the specific context of phosphorus manufacturing industries, the record reveals that the EPA made appropriate use of the data of the three “exemplary” plants. In stating that the Agency relied on two additional plants in the preamble to the notice of final regulations, EPA did not suggest that it was excluding consideration of Hooker’s plant no. 181 which it had originally relied on when the regulations were first proposed. Nor do Petitioners contend that these plants should have been classified separately in discrete subcategories. The average of these three plants’ discharge of fluoride and phosphate effluent is less than or equal to the discharge limit set by the EPA for those effluents.
Petitioners complain that the exact mathematical averaging of figures is not in the record and that therefore the record does not adequately corroborate the discharge limit. However, Agency action should be upheld where the path of administrative proceedings may reasonably be discerned even if the demarcations are of less than ideal clarity. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447, 456 (1974). In the light of the explicit statement in the Final Development Document that the three plants were being used and in light of the definition of “best practicable” which concisely expresses the Agency methodology of averaging, we believe the path of administrative proceedings was adequately set forth.
Petitioners also contend that the regulation is invalid because the limits which the regulation prescribes are not satisfied by the industrial plants on whose data the limits were predicated. It is undeniable that exemplary Monsanto plant no. 028 does not comply with the fluoride discharge limit and exemplary Monsanto plant no. 159 does not comply with the phosphate discharge limit. But this does not invalidate the regulation. The legislatively mandated methodology of averaging the best existing performances of comparable industrial plants to determine “best practicable technology” of necessity means that those plants which discharge more effluent than the resulting mean may need to make some modification of their effluent treatment systems. American Meat Institute, supra, at 457. The fallacy of Petitioners’ argument is the assumption that inclusion of an industrial plant within the category “best existing” constitutes an implied determination that that plant’s technology is the “best practicable” and that the plants’ effluent discharge rates are the maximum achievable by 1977. We believe that the figures reached by EPA as to fluorides and phosphates are justified by the information before it.
Petitioners next argue that the regulations are invalid because it is unclear whether they apply on a “net” or “gross” basis. If applied on a “gross” basis, an industrial plant would be liable for all effluents in its process waste regardless of whether they are added during the manufacturing process or already present in the intake water. If applied on a “net” basis, the point source would only be accountable for effluent which it added to the water it uses. The defect, however, appears to have been remedied by promulgation of new regulations following the institution of this appeal. 40 F.R. 29849 (1975). The new regulations, which apply to the issuance of all permits implementing the Act, in effect, provide for application of “net” levels if the permit applicant’s water supply is the same body of water into which effluents are discharged.
Finally, Petitioners argue that the regulation is arbitrary because it makes no provision for excess rainfall or discharge after storms which will assertedly increase the discharge flow and hence the pounds of pollutants discharged. The Agency concedes this point and promises a clarifying amendment. However, we have no way of knowing whether a hypothetical amendment will adequately remedy the defect of an operative regulation, and we decline to resolve the issue solely upon the good faith of respondent. American Iron & Steel, supra, at 1056. Accordingly, we vacate the regulation and remand the record for this purpose and further proceedings, if necessary.
(c) 1983 Effluent Limitations Guidelines for Phosphorus Manufacturers
EPA set a 1983 regulation of “no discharge” of process waste water for phosphorus manufacturers. 40 C.F.R. § 422.13. In addition to the confessed failure to make any provision for the concededly unavoidable discharge of rainfall effluent after storms, there are several other defects associated with the regulation which require us to set it aside and remand the record to the EPA for further consideration. Since our judicial review rests in part on the premise that Agency and Court together constitute a “ ‘partnership’ in furtherance of the public interest”, Kennecott Copper Corp. v. Environmental Protection Agency, 149 U.S.App.D.C. 231, 462 F.2d 846, 848-49 (1972), some discussion of these defects is appropriate. It would be impolitic to require the Agency to grope in the dark for the rationale compelling our disapproval.
The 1983 effluent limitation guideline was predicated on the applicability of the recycle technology employed at Hooker’s plant no. 181 which EPA claims has already achieved zero discharge of fluoride and phosphate effluent except in times of heavy rainfall. That “technology” is basically a secondary treatment system of settling ponds. Process waste water generated in production is discharged into the first pond and slowly progresses through the other ponds until it is finally ready for reintroduction into the production process.
Petitioners’ principal objection to the regulation is that EPA failed to consider whether such recycle technology could be feasibly applied to plants in cold climates. In such climates the settling ponds would assertedly freeze, preventing recycle. They buttress the argument by referring to the record of EPA’s consideration of the 1977 phosphorus regulation wherein EPA discussed cold weather effects upon recycle technology. There is no comparable discussion in the section of the record dealing with the 1983 counterpart, even though EPA does not suggest that cold weather will not be a problem in the foreseeable future.
EPA acknowledges that a cold climate may cause recycling difficulties, but it contends that the problems are manageable and that the cold weather analysis in the discussion of the 1977 phosphorus manufacturer regulation adequately addresses Petitioners’ complaints. In that discussion, EPA accepted the factual premise that settling ponds “may” freeze. It concluded that the simple expedient of burying water mains and heating the pumping stations would adequately protect the plumbing in the pond system. In the event that the settling ponds themselves froze, it concluded that a water supply would have to be provided to “uncouple” the process from “climatic perturbations”, that the ponds would have to be sufficiently large to prevent overflow after the introduction of the temporary auxiliary water, and that the ponds would have to provide sufficient evaporative capacity to eliminate the additional auxiliary water.
EPA also claims both that there is “available” technology which could prevent the ponds from freezing altogether and that even if the ponds could not be kept unfrozen, there exists available substitute technology which is not affected by subfreezing temperatures. However, these expedients appear for the first time in EPA’s brief. Courts have repeatedly held that this kind of post hoc rationalization is plainly unacceptable. Burlington Truck Lines v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207, 216-17 (1962); Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 395 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Moreover, the argument that a substitute technology is “available” to insure compliance with the regulation in instances where land is unavailable, is itself a concession that pond settling, the only technology discussed in the record, is not universally feasible.
Our examination of the record also discloses that the Administrator did not take the costs of the cold weather technology adjustments into consideration. Since the record confirms that at least one of the phosphorus manufacturers is located in a cold climate area, a failure adequately to consider cold weather costs was unreasonable. American Meat Institute, supra, at 462-63. Accordingly, the regulation is remanded to the EPA for further proceedings at which time we expect that these issues will be considered.
We are mindful that courts have been reluctant to set aside 1983 effluent limitations which are predicated on technology that is still in the development stage. See Tanners’ Council of America, Inc. v. Train, 541 F.2d 1018, at 1027 (4th Cir. 1976). Since technological innovations may transform what at present appears to. be fantastic expectations into practical realities for 1983, such trepidation is understandable. No one has the advantage of being able to gaze into a crystal ball which reveals the inventive genius and engineering ability of our scientists. To prophesy the state of the art during the forthcoming years would be pure speculation. The only assumption that can be made with assurance is that the art will not remain static.
For example, in its Economic Analysis report, Arthur D. Little, Inc. hazarded the predication that
“Apart from this factor [possible shutdown of some STPP plants], the costs presented in the effluent guideline development document would not appear to have any significant economic impact in any of the products covered.”
In any event,
“Cost increases of this magnitude will either be absorbed, or, more likely, passed on to consumers through price increases.”
Arthur D. Little, Inc. concluded that even if costs were “significantly higher”
“we do not expect them to cause directly any plant closings, to lead to unemployment in any of the segments examined, or to have any significant impact to communities where production facilities are located.”
These predictions were accepted by the EPA. It would be unfair to expect the EPA to pinpoint exactly all conceivable cost ramifications of the 1988 limitations. To precisely identify the costs many years into the future is an almost impossible task.
But the absence of any practical consideration of costs is unjustifiable, and where the record leaves those who are subject to the 1983 limitations without any suggestions or specifications as to how they may attempt to comply, the 1983 limitations must be vacated. FMC Corporation, Inc. v. Train, 541 F.2d 1018, at 1027 (4th Cir. 1976). The implementation of plans to control 1983 effluent discharge must be begun now. A record which fails to disclose a reasonable basis for belief that a new technology will be available and economically achievable is deficient, de Nemours II, supra, at 1032.
(d) 1977 and 1983 Effluent Limitation Guidelines for Phosphorus Pentasulfide
The phosphorus pentasulfide industry in the United States is comprised of five plants. Of these, two were examined by EPA: Hooker Chemical Company’s plants in Niagara Falls, New York, and Columbus, Mississippi. A major effluent source at these and presumably all plants which produce phosphorus pentasulfide is the water used in “wet scrubbers” to reduce noxious fume emissions during the “casting” of phosphorus pentasulfide. Casting is the process whereby molten phosphorus pentasulfide is poured into containers to solidify. The surface of the molten phosphorus pentasulfide mass ignites on contact with the air, producing gaseous phosphorus pentoxide and sulfur dioxide. The investigation of the two plants revealed that little was being done to treat the waste water which resulted from scrubbing these fumes.
(i) 1983 Effluent Limitations Guidelines
EPA concluded that the application of the “best available technology economically achievable” would eliminate effluent discharge, and it announced a standard of no discharge of process waste water for 1983 effluent limitation guidelines applicable to the industry. 40 C.F.R. § 422.22. It determined that either of two alternative technologies are available to totally eliminate the discharge of scrubber water. The first is inert or vacuum casting, during which process molten phosphorus pentasulfide is not exposed to the oxygen in the air, thereby preventing fume production and eliminating the need to use scrubbing water. Inert casting is not presently in use in the industry and its installation would require relatively expensive revisions of the casting process. The second method involves the combined employment of (1) dilute caustic or lime slurry in the scrubber system; (2) partial recycle of scrubber liqúor; (3) lime treatment and sedimentation permitting total recycle of the process effluent.
Petitioners challenge the 1983 phosphorus pentasulfide effluent limitations arguing that there is no basis in the record to conclude that either of these technologies is “available”. They emphasize that neither of the plants inspected use either process and note that there is no citation in the record to extraneous literature which would support the EPA’s conclusion that they could be applied to eliminate process waste water. They also criticize the report for failing to discuss or consider the problem of sediment precipitation endemic in recycle systems which assertedly renders total recycle of effluent water unfeasible. Since neither technology has been shown to be “available”, petitioners conclude that it was contrary to law for the EPA to predicate the 1983 standard on their application.
That no plant in a given industry has adopted a pollution control device which could be installed does not mean that that device is not “available”. Congress did not intend to permit continuance of pollution by industries which have failed to cope with and attempt to solve the problem of polluted water. Section 304(b)(2)(A) itself explicitly mandates consideration by the Administrator of “treatment techniques, process and procedure innovations” (emphasis added) in determining the degree of effluent reduction attainable by the application of the best control measures and practices. The Legislative History supports the plain meaning of this language. See, e. g., Leg. Hist., p. 170.
But even if technology which is not presently in use can be treated as available and achievable, there must be some indication in the administrative record of the reasons for concluding that such technology is feasible and may reasonably be expected to yield the effluent reduction mandated when applied to the particular industry. American Meat Institute, supra, at 463; de Nemours II, supra, at 30(c). Agencies must present sufficient support for their conclusions in order that the Court can properly review their decisions. FMC Corp., supra, at 1027, n. 16. The Court and the parties must not be left with post hoc rationalization by counsel as prime authority for agency decision. Hawaiian Telephone Co. v. Federal Communications Commission, 162 U.S.App.D.C. 229, 498 F.2d 771, 777 (1974). Judged in that light, we conclude that the EPA has failed to adequately identify the facts underlying and explain the reasons for its conclusion that full recycle and inert casting are available technologies which could completely eliminate waste water discharge.
There is nothing in the record which explains how or whether inert casting could be applied in the industrial process. The EPA relies heavily on citations to R. E. Kirk and D. F. Othmer, Encyclopedia of Chemical Technology Interscience, N.Y., 2d ed. (1966), as authority that “inert casting” could be successfully implemented. But the record merely contained a generalized reference to the work as a whole and did not specify what sections, if any, of the Encyclopedia were being relied upon. This will not suffice. Portland Cement Association, 'supra, at 400. Such wholesale incorporation of scientific treatises gives no indication of how the Agency reached its conclusion and encourages too generalized administrative analysis at the expense of reasoned articulation by providing a readily accessible springboard for post hoc rationalization. If an agency is going to rely on scientific literature it should specify just what is being employed so that the Court and others may trace its reasoning and proposed application.
As it stands now, the record is devoid of any explanation of how inert or vacuum casting could be adopted to the pentasulfide industry given the distinctions between that industry and the other chemical industries in which that technique is presently employed. The EPA points to the observation that vacuum distillation is currently employed in the phosphorus pentasulfide production process, but neglects to say how or whether “casting” is sufficiently similar to distillation to permit technology transfer of vacuum process to casting.
As to “total recycle” of waste water, we again agree with Petitioners that the EPA has failed to adequately explain how the problem of solid salt precipitation in the water recycle system could be avoided without having to discharge periodically the waste water and replace it with fresh water. Cf. American Iron & Steel, supra, at 1062. The EPA nowhere responds to the statement by its hired consultant that:
“total recycle probably cannot be carried out or approached in present equipment. The sulfate-sulfite lime system, once concentrations build up, requires special scrubbing fluid handling techniques to keep the severe scaling under reasonable control.”
Although this statement conflicts with the Agency’s conclusion, no explanation for its rejection is proffered. Nor is there any specification of the available technology which supercedes the performance of “present” equipment. The EPA belatedly argues that dry dust collection technology could be used to trap sulfur dioxide gas in the casting process, thereby preventing scaling in the water recycle system by eliminating from the water flow the crucial ingredient for the formation of sulfite and sulfate precipitates. Since this peculiar use of dry dust technology was never considered at the rulemaking stage we can only conclude that it, too, is an impermissible post hoc rationalization. The administrative record contains nothing which even arguably supports this EPA assertion or begins to explain how technology used to trap dust is “available” to collect gas.
In addition to these fatal defects, the record discloses that the Agency completely neglected the problem of eliminating the discharge of waste water other than that produced in the “casting” part of the production process. The EPA virtually concedes this point when it says that such waste water will be dealt with separately after redefinition of “process waste water”. Although the technology to eliminate the waste water which resülts from the cleaning of storage vessels may already be in existence, it is not the proper function of the Court or adversely affected litigahts to guess what that technology may be in order to substantiate administrative action.
We hold that the 1983 effluent limitation guideline for phosphorus pentasulfide point-sources must be set aside and that further procéedings must be initiated to formulate adequate regulations. This is not to say whether a limitation of “no discharge” for such point source is unattainable, but if the EPA chooses to ¿dhere to that standard, it-must articulate its rationale in such fashion as will permit meaningful judicial review of its action.
(ii) 1977 Effluent Limitation Guideline
EPA adopted a “no discharge” limitation for 1977 based on the application of the same technology which it assertedly relied upon in the formation of the 1983 effluent limitation. 40 C.F.R. § 422.23. Petitioners challenge the validity of the guideline on the ground that whatever its relevance may be to the 1983 guideline, that technology should not have been considered by the Agency in formulating a 1977 guideline. Noting that 1977 guidelines are to be based oh the application of the best practicable control technology, Petitioners cite legislative history for the proposition that technology affecting the manufacturing process itself was not encompassed within the term “best practicable”. Since inert or vacuum casing and total recycle are assertedly “in process” changes, Petitioners conclude that they should not have been considered applicable to point sources for achieving effluent reductions by 1977. EPA candidly concedes the merit of Petitioners’ argument and promises amending regulations. However, in construing such ‘in process’ changes, if in-plant controls, which do not represent changes in the basic manufacturing process and-, which have been carefully considered in light of‘the pertinent factors applicable thereto, may by simple modifications, enable the phosphorus pentasulfide industry to achieve the objectives of thé water pollution legislation with respect to compliance by July 1, 1977, EPA should not be foreclosed from promulgating regulations so long as they are not unattainable by any. technology known • today; but no ‘in process’ changes can be mandated for 1977 unless they may be considered normal practices within the industry.
Accordingly, we set aside the present regulation and remand the record to the EPA • for further proceedings. See, FMC Corp., supra, at -. But, cf. de Nemours II, supra, at --.
(e) 1983 Effluent Limitation Guidelines For Phosphorus Trichloride and Phosphorus Oxychloride
The principal source of fluid effluent in an industrial plant producing phosphorus trichloride or phosphorus oxychloride is produced when water is used to “scrub” phosphorus trichloride or phosphorus oxychloride vapors from reaction and distillation vessels. The 1983 effluent limitation guidelines established by EPA for these plants based on the “best available” technology is “no discharge of process waste water pollutants”. 40 C.F.R. § 422.-23. EPA believed that the installation of refrigerated condensors would reduce vapor volume 90% and that a corresponding reduction of needed scrubber water could be expected. EPA determined that the remaining 10% waste water flow could , be eliminated by evaporation.
Petitioners question EPA’s basis for concluding that evaporation is an “available” technology and also challenges EPA’s conclusion that refrigeration would reduce vapor volume by 90%. It further contends that even if vapor volume could be reduced by 90% there is no basis for EPA’s assumption that a proportionate reduction of waste water flow would follow. Petitioners also argue that EPA either miscalculated or ignored the energy and cost factors which it was obligated to consider in developing the regulations. Finally, it contends that solid wastes produced by the fuel which would have to be consumed to satisfy anticipated technology’s energy requirements would itself constitute a pollution problem.
While contending that a basis for the regulation exists in the record and that the standard of no discharge is achievable, EPA acknowledges the Petitioners’ criticism and the need for revision. Accordingly, we set aside the 1983 effluent limitation guidelines for phosphorus trichloride and phosphorus oxychloride and remand it to the EPA for specific consideration of the Petitioners’ comments.
(f) 1977 and 1983 Effluent Limitation Guidelines For Food Grade Sodium Tripolyphosphate; 1983 Effluent Limitation Guidelines For Food Grade Calcium Phosphate
Our discussion of the regulations for Food Grade Sodium Tripolyphosphate, 40 C.F.R. §§ 422.32; 422.33, and for Food Grade Calcium Phosphate, 40 C.F.R. § 422.-33, will be mercifully brief. In light of the EPA’s candid admission that Petitioners’ arguments expose the lack of a sufficient data base to support the regulations, it is unnecessary to parade the full regalia of Petitioners’ challenges and we simply set aside the regulation. We expect that in subsequent proceedings, the Petitioners will have the opportunity to urge their position and that the EPA will respond accordingly.
(g) Definition of Process Waste Water
Excepting the 1977 effluent limitation guideline for the Phosphorous Production Subcategory, 40 C.F.R. § 422.12 (1975), each of the effluent limitation guidelines for the phosphate industry governs the discharge of “process waste water” pollutants or discharge of pollutants in “process waste waters”. The term “process waste water” is defined to be:
“any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, by-product or waste product.” 40 C.F.R. §§ 422.11, 422.21 and 422.31, incorporating 40 C.F.R. § 401.-ll(q).
Petitioners challenge this definition as being arbitrary on several grounds. First, they argue that, as it stands now, the definition encompasses leaks and spills which are ineluctable in industrial chemical operations. The inclusion of leaks and spills in the definition of process waste water renders unattainable compliance with permits incorporating effluent guidelines that prohibit all discharge of process waste water. For the same reason, Petitioners claim that the “process waste water” definition is arbitrary because it includes rainwater runoff which is inevitably contaminated by chemical dust which obviously cannot be controlled by even the most stringent air quality dust control programs.
EPA responds that although the statute may be read as including rainwater runoff and leaks and spills within the definition of “process waste water”, the Agency did not intend to create an overly broad regulation. In light of this concession, we hold that regulation defining process waste water must be set aside and remanded to EPA for further consideration. See, de Nemours II, supra, at 1032.
CONCLUSION
Any legislation as innovative as the Act cannot in its initial enactment be expected to cover all possible contingencies or situations either existing or which may arise in the future. Undoubtedly amendments will be required to provide for such situations; and regulations will have to be modified. Much will depend on the reasonableness and the flexibility of those responsible for the administration of the law and regulations. But until those contingencies arise, Cássandra-like prophecies of doom are premature. Despite the fact that we have to sail on unchartered waters (hopefully to become non-polluted in the near future), it is too soon to indulge gloomy fears that industrial plants will have to close; that thousands of employees will be thrown out of work, or that the air will be polluted by fumes of the fúel necessary to drive water pollution control equipment. The spectre of ghost towns which were once prosperous communities is, with proper administrative and court decisions unlikely to become a reality. On remand of these regulations the EPA will have án opportunity to elaborate more fully, if necessary, on such factors, specified in § 304, as may be relevant. For the moment, it would seem that the EPA has endeavored to carry out its assigned functions under difficult circumstances, and there is no reason to believe that it will not continue to do so with the clarifications suggested herein.
. 40 C.F.R. Part 422 (1975).
. 33 U.S.C. § 1369. References in the contested regulations and the accompanying administrative record are usually made to the Act rather than the United States Code. For convenience, we will follow this practice in the text, and will footnote cross-reference to the Code when a section of the Act is first mentioned.
. A “point source” is defined as: “any discernible, confined and discrete conveyance from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Industrial plants probably comprise the majority of existing “point sources”.
. 33 U.S.C. § 1251.
. 33 U.S.C. § 1316.
. 33 U.S.C. § 1342(k).
. 33 U.S.C. § 1311(b)(1)(A).
. 33 U.S.C. § 1311(b)(2)(A).
. 33 U.S.C. § 1314(b).
. 33 U.S.C. § 1314(b)(1)(B).
. 33 U.S.C. § 1314(b)(2)(B).
. 33 U.S.C. § 1369.
. CPC International v. Train, 515 F.2d 1032, at 1034 (8th Cir. 1975).
. Id. at 1039.
. American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027, at 1035 (3rd Cir. 1975).
. Id. (footnotes omitted).
. Id.
. Id. at 1036.
. Id. at 1037.
. Id. at 1039.
. Id.
. American Meat Institute v. Environmental Protection Agency, 526 F.2d 442, at 444 (7th Cir. 1975).
. Id. at 452.
. Id. at 448.
. Id. at 452.
. E. I. DuPont de Nemours, Inc. v. Train, 528 F.2d 1136 at 1139 (de Nemours I) (4th Cir. 1975), cert. granted, - U.S. -, 96 S.Ct. 1662, 48 L.Ed.2d 174, 44 U.S.L.W. 3592 (1976).
. Id. at 1142.
. Id. at 1141.
. Id. at 1142.
. E. I. DuPont de Nemours & Company v. Train, 541 F.2d 1018, at 1026 (de Nemours II) (4th Cir. 1976).
. American Iron and Steel, supra, at 1074.
. de Nemours II, supra, at 1027.
. Id.
. § 501(a). 33 U.S.C. § 1361(a).
. See, Resp. Br. p. 76.
. “Only the guideline’s restrictions on phosphates and fluorides are at issue in this action. No issue is raised in this proceeding as to the prohibition as discharges of elemental phosphorus (usually called ‘phossy water’), the restriction on total suspended solids, or the pH limit.” Pet. Br. 41.
. ESWQIAC was established pursuant to § 515 of the Act, 33 U.S.C. § 1374, to advise the EPA and comment upon any standards or limitations which it might propose.
. Joint Appendix (“App.”), p. 912.
. App. 913.
. App. 1772.
. Id.
. App. 1771.
. Id.
. App. 1198.
. Id.
. Id.
. 39 F.R. 6581 (1974).
. App. 1592.
. See App. 1751, 1774, 1781.
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HARRISON L. WINTER, Chief Judge:
The Maryland Conservation Council and two other citizens’ groups sought to enjoin officials of Montgomery County, Maryland from authorizing further construction of a highway allegedly designed to pass through Seneca Creek State Park. The plaintiffs alleged, inter alia, that the County’s construction program violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331 et seq. (1982). Without hearing oral argument, the district court granted the defendants’ motion to dismiss. We reverse in part and affirm in part.
I.
Before proceeding with a statement of the facts, we must decide whether the district court’s order should be treated as the entry of summary judgment or the granting of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R. Civ.P. The question arises because the district court took notice of materials other than pleadings filed with the motion to dismiss. The parties agree that the district court decided only a motion to dismiss, and we also treat its ruling as one sustaining a motion to dismiss, especially because the district court did not purport to give notice to the parties that it would proceed under Rule 56 or to give them an opportunity to present “all materials made pertinent to a motion for summary judgment by Rule 56.” Rule 12(b). It follows that for purposes of this appeal we treat as proved all facts well pleaded. They are as follows:
Seneca Creek State park is located in Montgomery County, Maryland, near Gaithersburg and Germantown. It comprises over 6,000 acres and follows Great Seneca Creek for about 12 miles. The State of Maryland acquired much of the park land with federal funds, including $6.2 million received from the Department of the Interior. The area in which the park is located has existing and future deficits in day-use recreational facilities.
In 1971, Montgomery County began planning to construct the “Great Seneca Highway” through the park to relieve traffic congestion in the Gaithersburg-Germantown area. Because the project had been considered for federal-aid highway funds, the Department of Transportation and the County prepared a draft environmental impact statement (EIS) in 1983. The final EIS is still pending. Although the County received $245,000 in federal funds for planning the highway, there is no allegation that it has sought additional federal financing. There is, however, an allegation that additional federal funds may be sought, i.e., that “additional ... Federal Aid, will be pursued to the extent feasible.”
The plaintiffs and other environmentalists concede that some highway access through the park is essential. Controversy exists, however, over which route, or “alignment,” the highway should take. Environmentalists, the National Park Service, and the Environmental Protection Agency have urged that the County should upgrade existing highways so as to hold to a minimum damage to the park. The County did begin improvements on existing roads in the vicinity of the park, but it also began authorizing road construction along Alternate 2A, a route preferred by it that did not coincide with existing highways. If extended through the park, Alternate 2A would take three times as much park land as any other alternative route. Two federal agencies, the National Park Service and the Environmental Protection Agency, have expressed dissatisfaction with Alternate 2A, the National Park Service characterizing it as having “the most severe, negative effects” on the park.
Private real estate developers, who have undertaken to construct real estate projects in the vicinity of Alternate 2A, have been required to develop the two segments of Alternate 2A entering and leaving the park, but not the middle segment, which would actually run through the park. The County has required them to dedicate to the County the right-of-way for that part of Alternate 2A passing through their properties and to design and grade four lanes and pave two lanes along the right-of-way. The County claims that this paving is merely for “access” to each subdivision. By this means, construction of approximately two miles, or 26% of the total, of Alternate 2A has already commenced on both sides of the park.
In 1985, the Maryland Conservation Council and two other citizens’ groups filed suit against officials of Montgomery County, seeking to enjoin further construction along Alternate 2A other than that strictly needed for local access. The complaint alleges that the County has violated NEPA by authorizing construction of segments of the highway before the Department of Transportation has issued its final EIS, since construction will require federal approvals under § 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344 (the Water Act), under § 6(f) of the Land and Water Conservation Fund Act, 16 U.S.C. § 460l-8(f)(3) (the Conservation Act), and under § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303 (the Transportation Act), all of which allegedly render the construction a major federal action. The complaint also asserts that the County has directly violated Section 4(f) of the Transportation Act, 49 U.S.C. § 303, which requires the Secretary of Transportation to make certain environmental determinations before approving a transportation program requiring the use of a public park. Finally, the complaint alleges that the County has directly violated Section 6(f) of the Conservation Act, 16 U.S.C. § 460/ -8(f)(3), which requires the Secretary of the Interior to approve any “conversion” from recreational use of park land that was acquired with federal aid, such as Seneca Creek Park. The district court granted the County’s motion to dismiss all three counts for failure to state a claim upon which relief could be granted. We reverse as to NEPA but affirm as to the Transportation Act and the Conservation Act.
II.
We turn first to plaintiffs’ claim under NEPA. That statute requires an EIS for “major Federal actions” that significantly affect the environment, 42 U.S.C. § 4332(C), and authorizes the courts to enjoin federal actions that do not comply, see West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4 Cir.1971). See also 40 C.F.R. § 1506.1. The district court held that the Great Seneca Highway is not a “federal” action; it therefore dismissed the NEPA count for failure to state a claim.
A non-federal project is considered a “federal action” if it cannot “begin or continue without prior approval of a federal agency.” Biderman v. Morton, 497 F.2d 1141, 1147 (2 Cir.1974); Foundation on Economic Trends v. Heckler, 756 F.2d 143, 155 (D.C.Cir.1985). “Cases finding ‘federal’ action emphasize authority to exercise discretion over the outcome.” W. Rodgers, Environmental Law § 7.6, at 763 (1977).
We conclude that the Great Seneca Highway is a federal action within the meaning of NEPA. Because the highway, wherever located, must inevitably cross Seneca Creek State Park, a park established with a grant of substantial federal funds, the approval of the Secretary of the Interior for conversion of park land to other than public outdoor recreation uses will be required. Conservation Act § 6(f), 16 U.S.C. § 460l-8(f)(3). In addition, it is alleged that the section of the highway which will cross the park will impinge on wetlands when it crosses Seneca Creek so that a permit from the Secretary of the Army to dredge wetlands will be required pursuant to the provisions of § 404 of the Water Act, 33 U.S.C. § 1344. Finally, if defendants seek additional federal funds for the construction of the highway, they will be required to obtain the approval of the Secretary of Transportation for the use of park land for a transportation program under § 4(f) of the Transportation Act, 49 U.S.C. § 303(c). In each instance, each Secretary will be required to consider a final EIS before exercising his or her authority. It is certain that this must be done by the Secretary of the Interior; it is almost certain that this must be done by the Secretary of the Army; and it is possible that this must be done by the Secretary of Transportation. Because of the inevitability of the need for at least one federal approval, we think that the construction of the highway will constitute a major federal action.
Because it is inevitable that the construction of the highway will involve a major federal action, it follows that compliance with NEPA is required before any portion of the road is built. This conclusion effectuates the purpose of NEPA. The decision of the Secretary of the Interior to approve the project, and the decision of any other Secretary whose authority may extend to the project, would inevitably be influenced if the County were allowed to construct major segments of the highway before issuance of a final EIS. The completed segments would “stand like gun barrels pointing into the heartland of the park ...” Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 400 U.S. 968, 971, 91 S.Ct. 368, 369, 27 L.Ed.2d 338 (1970) (Black, J., dissenting from denial of certiorari). See also Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013, 1023 (5 Cir.1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972). It is precisely this sort of influence on federal decision-making that NEPA is designed to prevent. Non-federal actors may not be permitted to evade NEPA by completing a project without an EIS and then presenting the responsible federal agency with a fait accompli.
We are committed to the proposition that when a major federal action is undertaken, no part may be constructed without an EIS. In Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4 Cir.1972), where we concluded that an EIS was required before a road known as Arlington 1-66 could be located and constructed, we considered whether construction which had already begun could continue pending completion of the EIS. We held that it could not, observing that when the Secretary of Transportation acted on the completed EIS and determined the location of the road, he could consider previous investment: “[i]f investment in the proposed route were to continue prior to and during the Secretary’s consideration of the environmental report, the options open to the Secretary would diminish, and at some point his consideration would become a meaningless formality.” Id. at 1333. For this reason we held that an injunction against further construction should issue until the Secretary took final action on the EIS. Id. at 1334.
The district court was in error when it failed to consider whether the authority of the Secretary of the Interior over the project made it “federal.” The district court focused on a related definition of “federal action”: whether the project is suffused with enough federal involvement to qualify as a “partnership” between federal and non-federal entities. See Biderman, 497 F.2d at 1147; Ely v. Velde, 451 F.2d 1130 (4 Cir.1971). Because we conclude that the inevitable exercise of federal approval power makes the Great Seneca Highway a federal action, we need not decide whether the highway is also the product of a state-federal partnership.
We therefore hold that the complaint states a cause of action under NEPA, and we remand the case to the district court for further proceedings, including consideration of plaintiff’s motion for a preliminary injunction. Plaintiffs ask us to grant injunctive relief in this appeal. Such extraordinary action, we think, would be highly improper, because there are unresolved disputes in essential facts. For example, the district court must determine whether any part of the County’s construction program is essential for access to the land, as the County claims, and whether the program in fact violates NEPA and its regulations by limiting “the choice of reasonable alternatives” available to federal decision-makers. 40 C.F.R. § 1506.1(a)(2) (1985).
III.
Although we conclude that the complaint alleges a meritorious cause of action for violation of NEPA, we agree with the district court that it does not allege a cause of action for a present violation of the Conservation Act or the Transportation Act. Aside from possible questions of parties, ripeness and exhaustion of administrative remedies, the fact is that defendants are not alleged yet to have made any application to convert park lands to highway use or to have undertaken any such conversion. The complaint therefore fails to state a claim under the Conservation Act. Nor are defendants alleged yet to have made any application for federal funds to finance the cost of construction of this multi-million dollar highway. It is true that plaintiffs allege that defendants received a grant of $245,000 in federal funds for what is obviously preliminary planning for the road, but this sum is so small compared to the actual cost of construction of eight miles of a multi-lane highway that we think it insufficient to render the highway a federally-funded transportation project. The complaint therefore fails to state a claim under the Transportation Act. In considering both the Conservation Act and the Transportation Act, we are mindful that, unlike NEPA, neither statute requires preliminary studies of “proposed” action. See 42 U.S.C. § 4332(C).
IV.
Accordingly, the district court’s judgment dismissing the claim under the Transportation Act and the Conservation Act is affirmed. Its dismissal of the claim under NEPA is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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CUMMINGS, Circuit Judge.
This is an appeal from a preliminary injunction granted by the district court which effectually restrains the Secretary of Agriculture and other personnel of the Department of Agriculture from continuing the suspension of the registration of 17 Panogenic compounds as “economic poisons” under the Federal Insecticide, Fungicide and Rodentieide Act. 7 U.S.C. § 135 et seq. A three-judge panel of this Court, one judge dissenting, upheld the preliminary injunction. 435 F.2d 1133. Subsequently, the Government’s petition for a rehearing en banc was granted.
Plaintiff Morton International, Inc. manufactures seventeen types of cyano (methylmercuri) guanadine known as Panogens. Plaintiff Nor-Am Agricultural Products, Inc. distributes Morton’s Panogens. These mercury compounds are used as fungicides in treating seeds intended for planting. They were duly registered as “economic poisons” with the Secretary of Agriculture, as required by Section 4(a) of the Federal Insecticide, Fungicide and Rodentieide Act. 7 U.S.C. § 135b(a).
Pursuant to Section 4(c) of the Act (7 U.S.C. § 135b(c)), on February 18, 1970, the Department of Agriculture telegraphed plaintiff Nor-Am that its Panogen registrations had been suspended “in view of the recent accident involving the ingestion of pork from hog feed seed treated with cyano (methylmercuri) guanadine.” On the same date, Dr. Harry W. Hays, Director of the Pesticides Regulation Division of the Agricultural Research Service, sent a letter to Nor-Am more fully explaining the Department’s action. That letter indicated that the registration of the 17 Panogens was suspended “[t]o prevent an imminent hazard to the public from the use of cyano (methylmercuri) guanadine as a seed treatment.” The letter referred to three New Mexico children who had been hospitalized in a comatose condition because they had eaten pork from hogs fed screenings and sweepings from seed previously treated with a fungicide product containing cyano (methylmercuri) guanadine. The letter added that the Panogen labels were inadequate to prevent the treated seed screenings and sweepings from being fed to hogs. Dr. Hays further said that other incidents had been reported showing that mercury treated seed screenings and sweepings had been fed to livestock or “disposed of in a manner that results in wildlife feeding on them.” Finally, the letter noted that the ingestion of cyano (methylmercuri) guanadine reportedly caused irreversible injury to the central nervous system.
On March 27, 1970, the Director of Science and Education in the office of the Secretary again wrote Nor-Am. This letter elaborated the reasons for the emergency suspension:
“The action * * * was based on the fact that the directions for use and precautionary statements have failed to prevent treated seed from being used as feed. Recent reports also indicate that birds feeding on treated seed have significant levels of mercury in their tissues.
“In view of the insidious nature of alkyl mercury poisoning and the irreversible injury to the central nervous system, we firmly believe that this class of compounds should be discontinued for seed treatment. To allow new stocks to enter channels of trade would increase the risk of injury to man and other vertebrate animals.”
On March 9, 1970, the registrations of similar products of other manufacturers were suspended. The suspensions prevent the shipment of these products until their registration is again permitted. Plaintiffs and the other distributors and manufacturer were not, however, required to recall existing stocks from their customers.
Administrative review of the Secretary’s order was initiated on March 27, 1970, when Nor-Am requested an expedited administrative hearing as provided by Section 4(c) of the Act. Instead of awaiting such a hearing, however, plaintiffs filed this suit on April 9, 1970, and quickly sought a preliminary injunction. Thereupon defendants moved to dismiss the proceeding. They claimed that the district court lacked jurisdiction to review the suspension order in advance of the hearing established by the statute; that plaintiffs had not exhausted the administrative procedures established by the Act; that the Secretary’s order was a non-reviewable, discretionary act; and that the Secretary had not acted arbitrarily or capriciously. This motion was supported by an affidavit of Dr. Hays describing two specific instances of contamination of meat resulting from the consumption of mercury-treated seed by swine or cattle. The affidavit noted action taken by Sweden in November 1965 to restrict the use of alkyl mercury as a result of studies indicating contamination of fish. Dr. Hays further cited an available publication describing numerous reports of accidents associated with the use of mercury in treating seeds. He averred that alkyl mercury can produce permanent damage to the central nervous system, and that there are no known effective antidotes for chronic poisoning by that substance. Finally, as additional support for the emergency action, the affidavit stated that the Advisory Center on Toxicology, National Academy of Sciences, had expressed the opinion in March 1970 that all alkyl mercury compounds should be considered alike in terms of their toxicological properties, and that on February 27, 1970, the Public Health Service of the Department of Health, Education, and Welfare had recommended the cancellation of organo mercury compounds for seed treatment because of the hazard associated with their use.
At the hearing on the motion for the preliminary injunction, two Nor-Am employees and the general manager of a seed improvement association testified that Panogen products had been marketed for 20 years as a very useful fungicide seed treatment. Nothing as economical or efficacious is available as a satisfactory substitute for liquid methyl-mercury seed treatment products. Plaintiffs added a red dye to their products in order to prevent misuse of treated seed as human or animal feed. Warning labels were also prepared by plaintiffs for use on their products and on the treated seed containers. Plaintiffs’ witnesses knew of no “permanent” injuries caused by Panogfens.
. Dr. Hays testified that when the February 18th suspension telegram was sent, to his knowledge the only permanent human injuries resulting from the use of Panogens were to the three Alamogordo, New Mexico, children. Twelve of the 14 hogs fed the treated seed near Alamogordo died. He stated that alkyl mercury compounds have a propensity to accumulate in the central nervous tissues, particularly in the brain. Such effects have not only been reported in laboratory animals but observed in pheasants, quail and other wildlife. The scientific community has discovered no effective antidote for alkyl mercury compounds. High levels of mercury have been found in the tissues of pheasants and quail in California and Ohio. He considered alkyl mercury substances used for the treatment of seed as imminently hazardous to the public because they “can be ingested by wildlife, or inadvertently used by domestic animals, or ingested by man." There is an inadequate degree of control in preventing treated seed from getting into feed or food, as evidenced by the number of grain seizure actions taken in the past by the Food and Drug Administration after finding such treated seed in grain. He felt that such treated seeds involve an undue risk to the public and that labels are inadequate to prevent any accidental misuse.
After the hearing, the district judge found that the court had jurisdiction over the subject matter of the dispute pursuant to the provisions of 28 U.S.C. § 1331, 28 U.S.C. § 1337, 28 U.S.C. §§ 2.201-2202, Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the “general equity powers of this Court.” The district judge also determined that unless preliminary injunctive relief were granted, plaintiffs would suffer irreparable harm for which they had no adequate administrative or legal remedy, although they were “likely to prevail on the merits.” The judge further concluded that preliminary relief was “consistent with the public interest.” Accordingly, he held the suspension of the Panogen registrations to have been arbitrary, capricious, and contrary to law, and defendants were enjoined from taking action against plaintiffs or the Panogens in reliance on the suspension order. Defendants were also ordered to give notice that the Panogens may again be distributed and sold in interstate commerce. Finally, the preliminary injunction permitted defendants to issue notices of cancellation of the registrations of these “economic poisons” effective only after the public hearing permitted by Section 4(c) of the Act. Upon consideration of this cause by the entire Court, we are of the opinion that the district court lacked power to grant this relief because the plaintiffs have not exhausted their administrative remedy.
The fundamental provisions regulating judicial review of administrative actions are contained in the 1946 Administrative Procedure Act. 5 U.S.C. § 701 et seq. Section 10(c) of that Act governs which agency actions shall be reviewable :
“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. * * *” 5 U.S.C. § 704.
I
In determining the status of the instant suspension in the light of the Administrative Procedure Act, we must turn first to the pertinent provisions of the Federal Insecticide, Fungicide and Rodentieide Act. 7 U.S.C. § 135 et seq. The 1964 amendments to Section 4 of that Act (Pub.L. 88-305, 88th Cong., 2nd Sess.) greatly strengthened the ability of the Secretary of Agriculture to take affirmative action protecting the public from hazardous and mislabeled commodities. ' Congress enacted new powers to deny, suspend, and cancel registrations where the Secretary had previously been compelled to accede to registration under protest should he be faced with an adamant demand. In Section 4(c), Congress also added hearing procedures guiding the exercise of these new powers. 7 U.S.C. § 135b (c). The Secretary was required to give notice to the appellant or registrant of asserted defects and, upon request, was obliged to refer the dispute to an “advisory committee” of experts or to a public hearing. In the event of an adverse determination by the Secretary after consideration of the matter by an advisory committee, the applicant or registrant could again request a public hearing.
Notwithstanding these procedural specifics, Congress provided for emergency action by permitting immediate suspension of registration in the face of “an imminent hazard to the public.” 7 U.S. C. § 135b(c). In almost the same breath, however, Congress recognized the need for prompt determination of the accuracy of the Secretary’s judgment and provided that in the wake of an emergency suspension the Secretary should
“give the registrant prompt notice of such action and afford the registrant the opportunity to have the matter submitted to an advisory committee and for an expedited hearing under this section.”
The 1964 Amendments also added special provisions for judicial review of agency actions directed toward denial, suspension, or cancellation of the registration of “economic poisons.” After describing the Secretary’s expanded powers and their mode of exercise, Section 4(e) states that
“[f]inal orders of the Secretary under this section shall be subject to judicial review, in accordance with the provisions of subsection d. * * *” 7 U. S.C. § 135b(c).
Section 4(d) outlines the mechanics, forum, and character of the judicial review contemplated by Congress:
“d. In a case of actual controversy as to the validity of any order under this section, any person who will be adversely affected by such order may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit, within sixty days after the entry of such order, a petition praying that the order be set aside in whole or in part. * * * The findings of the Secretary with respect to questions of fact shall be sustained if supported by substantial evidence when considered on the record as a whole, including any report and recommendation of an advisory committee. * * * The commencement of proceedings under this section shall not, unless specifically ordered by the court to the contrary, operate as a stay of an order. The court shall advance on the docket and expedite the disposition of all causes filed therein pursuant to this section.” 7 U.S.C. § 135b(d).
Together, these statutory provisions do not expressly or impliedly contemplate immediate review of emergency suspensions by either district or appellate courts. The reference to review of “any order” contained in Section 4(d) indicates no broadening of the class of reviewable orders under Section 4(c), for judicial review must conform to the nature of the order, “the context of the Act,” and “the relation of judicial power to the subject-matter.” Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 106, 68 S.Ct. 431, 434, 92 L.Ed. 568; see also, Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 384-385, 58 S.Ct. 963, 82 L.Ed. 1408. Implicit in Section 4(d) is the limitation on judicial review resulting from the specific extension on review in Section 4(c) only to “final orders of the Secretary.” Section 4(d) thus merely details the prodecural aspects and standards of the judicial review permitted by Section 4(e). Cf. McManus v. Civil Aeronautics Board, 286 F.2d 414 (2d Cir. 1961).
Equally unacceptable is the contention that an emergency suspension order is a “final order” of the Secretary made reviewable by Section 4(c). That limitation on judicial review serves to avoid delay and interference with agency proceedings by confining review to orders effectively terminating administrative adjudication. Cf. Foti v. Immigration and Naturalization Service, 375 U.S. 217, 224, 232, 84 S.Ct. 306, 11 L.Ed.2d 281. The suspension order and surrounding procedural scheme of the 1964 Statute refute the conclusion of finality under this Act. See Jaffe, Judicial Control of Administrative Action, p. 418 (1965). By its very nature and within the explicit purview of Section 4(c), the emergency suspension of registration represents a tentative, temporary measure. This interlocutory character is unaltered by the inclusion of the customary prerequisite that the hazard be “imminent.” It is preliminary to more thorough administrative consideration of the hazardous condition of the “poisons.” The statute expressly contemplates special proceedings to follow suspension posthaste. These include the informal submission of the disputed matters to an advisory committee of experts whose report and recommendations become part of the record for consideration at the expedited hearing and, under Section 4(d), on judicial review. The emergency suspension becomes final only if unopposed or affirmed, in whole or in part, by subsequent decision based upon a full and formal, consideration.
The provisions for judicial review spelled out in the statute also compel the inference that the emergency action of the Secretary by no means culminates administrative proceedings on the matters of registration of an “economic poison.” Review is not “de novo” in a trial court; rather, it is based on the substantiality of the evidence in the administrative record and is before the appropriate court of appeals. Such provisions with respect to judicial review are classic indications that Congress intended administrative adjudications to proceed to conclusion prior to judicial scrutiny.
We conclude that Congress intended to confine judicial review of registration disputes under Section 4(c) of the Act to final orders of the Secretary culminating administrative adjudication. Under this Act, the emergency suspension of registration preceding such adjudication does not constitute such a final order and is therefore not “reviewable by statute” within Section 10(c) of the Administrative Procedure Act, supra, p. 1155;
II
Plaintiffs contend that this order should nevertheless entitle them to review under the “final agency action” provision of Section 10(c) of the Administrative Procedure Act. They argue that suspension of registration by the Secretary possesses sufficient “finality” as an administrative action to warrant immediate recourse to the courts despite its status as a preliminary act within the framework of Section 4(c) of the Federal Insecticide, Fungicide and Rodenticide Act. Suspension, they urge, immediately and drastically affects their rights and interests as greatly as formally finalized cancellation. They suggest that neither subsequent agency proceedings nor judicial review established by Section 4(d) adequately test the Secretary’s determination of “imminent hazard to the public.” Unless they are permitted this exceptional remedy, they claim that the Secretary’s findings amount, to autonomous discretion.
Under Section 10(c) of the Administrative Procedure Act, the concept of finality of administrative action encompasses a complex array of considerations which may vary in accordance with the character and activities of the administrative agency, and with the nature and role of the agency action from which judicial review is sought. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-156, 87 S.Ct. 1507, 18 L.Ed.2d 681. The flexibility of the finality concept does not, however, permit facile disregard of the purposes of congressional delegation of power and of the clear procedural scheme delineated in this particular statute. The importance of executive and administrative autonomy, as well as respect for the will of Congress, was observed in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767-768, 67 S.Ct. 1493, 1500-1501, 91 L.Ed. 1796:
“The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress’ will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner. To do this not only would contravene the will of Congress as a matter of restricting or deferring judicial action. It would nullify the congressional objects in providing the administrative determination. In this case these include securing uniformity of administrative policy and disposition, expertness of judgment, and finality in determination, at least of those things which Congress intended to and could commit to such agencies for final decision.”
The function of the Secretary’s emergency power, as well as the practical exigencies of coordinating administrative and judicial machinery, militates against avoiding the prescribed procedures. The emergency suspension of registration of an economic poison under Section 4(c) involves highly discretionary administrative action with deeply rooted antecedents in the realm of public health and safety. In subtle areas of regulation, summary emergency action frequently precedes formal administrative or judicial adjudication. See, e. g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600, 70 S.Ct. 870, 94 L.Ed. 1088; cf. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596-597, 51 S.Ct. 608, 75 L.Ed. 1289; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030. Where, as here, Congress follows discretionary preliminary or interlocutory agency action with specially fashioned adjudicative machinery, strict observance of the prescribed procedure prior to judicial intervention is compellingly indicated.
Precipitous judicial review of this tentative judgment would at best be a difficult matter of dubious social benefit. Moreover, it strains administrative resources at a stage in the process which is most delicate and to a degree which may ultimately be rendered unnecessary by ordinary agency operations, both formal and informal. Even the limited review here contemplated nullifies the need or utility of the further agency action desired by Congress. The administrative process is interrupted before issues have been crystalized and narrowed and without affording opportunity for application of technical expertise and informed judgment. As this record demonstrates, judicial review at this stage requires factual elaboration by the district court. Such bifurcation and duplication of governmental resources and efforts demontrates the wisdom of judicial restraint, since once the district court has inserted itself into the process, it becomes wasteful or pointless to return the matter to the agency. Securities and Exchange Commission v. R. A. Holman & Company, Inc., 116 U.S.App.D.C. 279, 323 F.2d 284, 287 (1963), certiorari denied, 375 U.S. 943, 84 S.Ct. 350, 11 L.Ed.2d 274. Judicial scrutiny of the accuracy and correctness of the Secretary’s emergency suspension largely abrogates need of expedition of further agency proceedings. At the very least, however, the agency must postpone its further proceedings (even if it plans ultimately to expedite them) pending the outcome of judicial review. Not only may this aggravate the harm suffered by the innocent registrant by prolonging litigation, but it unnecessarily encumbers governmental efforts and may have the adverse effect of coloring further agency actions.
Nothing in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681, relied upon by plaintiffs, suggests a contrary conclusion regarding the reviewability of the instant suspension order. Abbott Laboratories was an action for essentially declaratory review of a strictly legal issue concerning the validity of a regulation. The rule-making process of the agency had culminated, and judicial review would neither impede enforcement of the regulation nor interfere with administrative proceedings. Entirely different considerations are operative where, as here, judicial review is sought of the factual basis supporting an emergency order which itself initiates clearly defined adjudicatory proceedings within the agency. These distinctions were expressly recognized by the Court in Abbott Laboratories when it distinguished Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088, by pointing out that the
“drug manufacturer in Ewing was quite obviously seeking an unheard-of form of relief which, if allowed, would have permitted interference in the early stages of an administrative determination as to specific facts, and would have prevented the regular operation of the seizure procedures established by the Act.” 387 U.S. at p. 148, 87 S.Ct. at p. 1515.
Similarly, we find distinguishable and inapplicable the holding in Environmental Defense Fund, Incorporated v. Hardin, 428 F.2d 1093, 1098-1099 (D.C. Cir. 1970), as it might relate to action by the Secretary of Agriculture in suspending registrations of an economic poison. There the Secretary of Agriculture refused to issue notices of emergency suspension or cancellation for DDT and the Court concluded that due to his inaction there were no further administrative proceedings available to the interested parties under the Federal Insecticide, Fungicide and Rodenticide Act. In contrast, issuance of a notice of emergency suspension under Section 4(c) of the present Act specifically results in further formal agency proceedings. These differing administrative consequences command respect and negate the present applicability of the conclusion reached by the court in Environmental Defense Fund that “[n]o subsequent action can sharpen the controversy arising from a decision by the Secretary * 428 F.2d at p. 1098.
Judicial review of the Secretary’s suspension order is inconsistent with the procedural remedies created by Congress for such an occasion. It is also at odds with the restraint courts have long exercised in dealing with preventive measures available to agencies charged with protecting such sensitive areas of public welfare. Here the plaintiffs have not yet exhausted their statutorily prescribed administrative remedies and there has as yet been no “final agency action” within Section 10(c) of the Administrative Procedure Act.
III
In addition to the statutory avenues of review, plaintiffs urge that the equity powers of the court have been properly invoked to prevent irreparable injury caused by the suspension order.
The circumvention of clearly prescribed administrative procedures by awarding equitable relief is an exceptional practice. As explained in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 773-774, 67 S.Ct. 1493, 1503-1504, 91 L.Ed. 1796, the rule that administrative remedies may occasionally be by-passed to protect strong private interests from irreparable harm
“is not one of mere convenience or ready application. Where the intent of Congress is clear to require administrative determination, either to the exclusion of judicial action or in advance of it, a strong showing is required, both of inadequacy of the prescribed procedure and of impending harm, to permit shortcircuiting the administrative process. Congress’ commands for judicial restraint in this respect are not lightly to be disregarded.”
Plaintiffs have failed to establish such an irremediable threat to sufficiently strong interests to warrant equitable intercession at this juncture.
We cannot accept the verdict of the judge below that the administrative remedies are inadequate. There is no contention that the Secretary has usurped powers beyond his jurisdictional scope. Cf. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547; Skinner & Eddy Corp. v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L.Ed. 772. Unlike Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, plaintiffs can assert their claims as a practical matter, informally and formally, without judicial interruption of agency practices. Nothing in the nature of the objections raised by plaintiffs here suggests that exhaustion of agency remedies would be an exercise in futility. Cf. McKart v. United States, 395 U.S. 185, 197-198, 89 S.Ct. 1657, 23 L.Ed.2d 194. The administrative agency has shown no incapacity or unwillingness to correct a demonstrably false suspension without advice from the courts. We have no basis for concluding that expedition by the agency would be any less effective than expedition by the judiciary. Finally, failure of the courts to entertain a complaint at this time does not foreclose judicial review entirely. See Yakus v. United States, 321 U. S. 414, 64 S.Ct. 660, 88 L.Ed. 834; cf. McKart v. United States, supra, 395 U.S. at p. 197, 89 S.Ct. 1657; Environmental Defense Fund, Incorporated v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970).
The primary interests threatened in this case are not public but private. They are interests of property rather than of life or liberty. Although plaintiffs claim danger to farmers and consumers from removal of their products, their direct and immediate concern is the impact of suspension upon their businesses. In Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51, 58 S.Ct. 459, 464, 82 L.Ed. 638, Justice Brandéis observed that.
“the rule requiring exhaustion of the administrative remedy cannot be circumvented by asserting that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage.”
We do not demean plaintiffs’ possible losses when noting moreover, that the temporary suspension affects business profits, not the very existence of the commodities plaintiffs seek to purvey. Where public health and safety demand emergency removal of a commodity from the market, even unrecoverable financial losses incurred pendente lite must be deemed an expense of the litigation itself. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088; cf. Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030.
Congress was not bound to supply the optimal protection to registrants affected by emergency suspensions. Congress balanced the public and private interests when it fashioned not only the Secretary’s discretionary power but also the administrative procedures to follow exercise of that power. The Court’s conclusion in Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 601-602, 70 S. Ct. 870, 874, 94 L.Ed. 1088, is applicable to this case with equal force:
“The purpose of the * * * provision is plain. It is to arrest the distribution of an article that is dangerous, or whose labeling is fraudulent or misleading, pending a determination of the issue of adulteration or misbranding. The public therefore has a stake in the jurisdictional issue before us. If the District Court can step in, stay the institution of [suspensions], and bring the administrative regulation to a halt until it hears the case, the public will be denied the speedy protection which Congress provided by [suspension], * * What we do today determines the jurisdiction of the District Court in all the eases in that category. If the court in the present case can halt all [suspensions] but one, so can the court in other cases. The means which Congress provided to protect consumers against the injurious consequences of protracted proceedings would then be seriously impaired. Congress weighed the potential injury to the public from misbranded articles against the injury to the purveyor of the article from a temporary interference with its distribution and decided in favor of the speedy, preventive device of [suspension]. We would impair or destroy the effectiveness of that device if we sanctioned the interference which a grant of jurisdiction to the District Court would entail.”
If this preliminary injunction were approved, other litigants could obtain district court threshold review by parroting plaintiffs’ claim that the Secretary had acted arbitrarily and capriciously in suspending their registrations, even though Sections 4(c) and 4(d) specify that review shall only be in the courts of appeals after action by the advisory committee and then by the Secretary. We should not countenance such an evasion of the review procedure provided by Congress in this statute. In reaching this conclusion, we express no opinion on the merits of the controversy between these parties concerning the registration of Panogens.
The preliminary injunction is dissolved and the case is remanded to the district court with instructions to dismiss the complaint.
Reversed.
. At the hearing below, the Assistant United States Attorney advised the court that this suspension matter had been placed on the Department’s calendar on an expedited basis. Its processing has been interrupted by this litigation.
. The first and most serious instance described by the affidavit involved the aforementioned severe mercury poisoning of members Of an Alamogordo, New Mexico, family in January 1970. The members of that family had ingested pork from contaminated hogs which had been fed mercury-treated seeds. The second instance of meat contamination involved seven Oregon cattle fed mercury-treated seed by a farmer and consequently declared unfit for human consumption.
. Bidstrup, Industrial Poisoning with Mercury.
. In addition to the provision for imiAediate suspension of registration to prevent an imminent hazard to the public, which is the subject of this suit, Section 4(c) permits cancellation of registrations. The cancellation is effective 30 days after service of notice by the Secretary upon the registrant “unless within such time the registrant (1) makes the necessary corrections ; (2) files a petition requesting that the matter be referred to an advisory committee; or (3) files objections and requests a public hearing.” 7 U.S.C. § 135b (c). We have been advised that the Secretary issued such notices of cancellation on August 4, 1970, nine days before this rehearing was granted, but an advisory committee was not convened to process the matters as of September 30, 1970, possibly because of the pendency of this rehearing.
. See generally, 3 Davis, Administrative Law Treatise, Ohs. 20, 21 (1958) ; Jaffe, Judicial Control of Administrative Action, Ch. 10 (1965).
. Compare the similar suspension provision in the Pood, Drug and Cosmetic Act (21 U.S.C. § 355(e)) which would also be thwarted if the reasoning below were applied to it.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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PELL, Circuit Judge
(dissenting).
After careful consideration of additional briefs and oral argument and of the present majority opinion of this court, I remain completely unpersuaded that an incorrect result was reached in the majority opinion by the three-judge panel of this court which first heard the appeal. Therefore, I must respectfully record this dissent.
I adhere to the views and propositions previously expressed in the majority opinion of July 15, 1970, which opinion, so as not to extend unduly the length of this dissent, I incorporate herein by reference. Nor-Am v. Hardin, 435 F.2d 1133 (7th Cir. 1970).
However, because of the wide-spread and significant implications of the present majority decision, establishing, as I believe it does, an invitation to government by administrative fiat, I feel compelled to further observations.
I join my brothers of the present majority opinion in allegiance to the general proposition that administrative remedies should be exhausted prior to judicial review and that such review should not interrupt and should not interfere with the full exercise of administrative expertise prior to finality thereof. However, as indicated in the original opinion in this appeal of July 15, 1970, there was finality involved in the decision of the secretary determining that Panogen constituted an imminent hazard to the public, and I reiterate the reasons expressed in the original opinion in support of that proposition.
The crucial and basic question here involved, however, in my opinion, is whether judicial intervention is permissible in the event of arbitrary and capricious administrative action. I do not find in the present majority opinion confrontation with this issue. The record before us cries out that the governmental suspension of Panogen as an economic poison was bottomed on the emotional impact of a single incident, one which was tragic and yet one which there was no reason for thinking would be repeated. When a product has been successfully used on the market for more than twenty years and is essential for agriculture, and when there has been no other recorded incident that the use of the product has been detrimental to the public health, I can reach no conclusion other than that the suspension was, in the technical and legal sense, an arbitrary and capricious one.
In considering the definition of arbitrary, the Supreme Court has given recognition to the standard dictionary definition such as “without adequate determining principle” and “arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance, * * * decisive but unreasoned; * * United States v. Carmack, 329 U.S. 230, 243-244 n. 14, 67 S.Ct. 252, 258, 91 L.Ed. 209 (1946)1 One of the dictionary definitions recognized by Carmack was “apt to change suddenly.” The facts on the record of this appeal, which will be further developed hereinafter, point clearly to the conclusion that the administrative suspension of the registration of Panogen was without adequate determining principle necessarily applicable to a determination that Panogen was an imminent hazard to the public and that said action was arrived at through an exercise of will without any proper consideration with reference to principle, circumstances or significance. In other words, it was decisive and therefore had all the elements of finality but was unreasoned.
As was developed in the opinion of July 15, 1970, on the evening of February 17, 1970 there was a national television broadcast on the Huntley-Brinkley newscast which discussed and portrayed the Alamogordo, New Mexico tragic incident. On the very next day, the registration was suspended. It takes no particular application of judicial knowledge to be aware of the nationwide coverage achieved by the particular television program. It takes no great perception in reading the record to conceive the emotional impact involved when three young children are rendered virtually vegetables.
When it is considered that the particular product had been on the market for over twenty years and had been registered as an economic poison for many years as required by the statutes in effect, the sudden suspension in the context of the emotional impact of the television program can only point, by the sudden change, to capricious action.
In Carmack, supra at p. 243, 67 S.Ct. 252, the Supreme Court said in the case before it that it was unnecessary to determine whether a particular selection could have been set aside by the courts as unauthorized by Congress if the officials had acted arbitrarily and capriciously so that their action was without adequate determining principle or was unreasoned. The Court stated that the procedure followed in making the selection involved in Carmack showed extraordinary effort to arrive at a fair and reasoned conclusion. I find the action of the secretary in reaching the extraordinarily stringent decision achieved here did not exhibit even an ordinary effort to arrive at a fair and reasoned conclusion.
In my view this is not merely a situation where a reviewing court could reach a decision contrary to that reached by the agency. That is not deemed arbitrary and capricious in the legal sense. Pauley v. United States, 419 F.2d 1061, 1066 (7th Cir. 1969). Rather, here the action seems insupportable on any rational basis.
In the opinion of July 15, 1970, reference is made to the reasoning of Congress in according to administrative officials the drastic and emergency power of acting with regard to matters determined to be an imminent hazard to public health. (See p. 1142 of 435 F.2d). The rationale of congressional pronouncements in this respect seem obvious. If a new product were to come on the agricultural market, as to which there had been no experience in relation to the public health, and the product in its marketed form when used was found to emanate fumes which caused serious and painful skin irritations, all of which resulted from lack of proper testing prior to marketing, obviously some agency of the government should have the authority to remove the product instanter from the market. Even here, of course, there should eventually be a hearing to determine with administrative expertise the various factual questions such as whether the product when properly manufactured did in fact cause the skin irritation, whether the product when properly used would produce the fumes and the value of the product not only to the agricultural community but to the public at large. Such a hypothetical situation which would occasion the use of the drastic emergency powers inherent in the imminent hazard determination does not by any realistic view exist in the case before us.
As this dissent was being prepared, the Nobel Peace Prize was awarded to an American agricultural scientist for studies that developed wheat strains giving bigger yields in older types, thereby helping the world’s hunger problems. The scientist had pioneered in breeding new varieties of disease-resistant wheat plants. Disease resistance was the purpose of Panogen’s development. Such research highlights the belief of many informed individuals that three or four more decades will bring upon us a real crisis in feeding the world’s population. Whether, as might be argued, the minimal dangers to a few people through misuse of a valuable agricultural product is less important than the overall threat of eventual failure to be able to feed the world is not a problem to which this court need address itself. It is a problem, however, to which in my opinion the administrative agency should have addressed itself, and in depth, prior to exercising its extraordinary power of immediate suspension.
At the hearing in the district court on a motion for the preliminary injunction, the evidence, which was not contradicted, reflected that no product as economical nor as efficacious was available as a satisfactory substitute for liquid methylmercuri seed treatment.
Obviously, of course, the work of a governmental department is easier when the opinion is entertained that if some product is hazardous to the public it should simply be taken off the market, putting the manufacturer in the broad sense on the defensive with regard to the product. This approach, however, ignores any significance in the crucial word “imminent.”
The Agricultural Department is obviously aware of the significance of the word “imminent” as reflected in the action of a director of a different division of the department in a report to the United States Court of Appeals for the District of Columbia Circuit which had ordered the Secretary of Agriculture either to ban the use of DDT or to state to the court its reasons for not doing so. BNA Environment Reporter, June 5, 1970, p. 115.
In the Department’s statement to the court the following was set forth:
“The scientific evidence now available does not establish that the use of DDT constitutes an imminent hazard to human health.
“Scientific evidence indicates that there are some adverse effects upon certain species of fish and wildlife but such effects do not constitute an imminent hazard to fish and wildlife or the environment.
“DDT has indisputably important and beneficial uses in connection with human health and agriculture, and there are not yet available suitable substitutes for all essential uses.
“The use of DDT should continue to be reduced in an orderly, practical manner which will not deprive mankind of uses which are essential to the public health and welfare.” BNA Environment Reporter, July 3, 1970, p. 238.
In this parallel factual situation, which lacked the emotional impact of the Alamogordo incident, the Secretary of Agriculture displayed an awareness of the differentiation between something which might or might not be ultimately hazardous to the public and something which was imminently hazardous to the public.
The lack of awareness of the crucial necessity of imminency is reflected in the present majority opinion which sets forth the evidence produced by the government on the hearing of a motion for a preliminary injunction. The government testimony reflected that the only permanent human injuries to the knowledge of the department were to the three Alamogordo children. Hogs owned by the children’s father had died, but they had been fed poisoned feed as a result of a misuse of the treated seed which was never intended for feed purposes. The testimony further indicated that the effect of mercury compounds had been reported in laboratory animals. But again this is not surprising because obviously these laboratory animals had been fed such products, and no contention has been made that the injection of mercury products into any living organism will not produce deleterious results. Next, the testimony indicated that the effects had been observed in pheasant, quail and other wildlife, but the effects of DDT had also been so observed. The scientific community, according to the testimony, has discovered no effective antidote for alkylmercury compounds. In varying degrees, this is no doubt true of many poisonous substances, but they are tolerated if in their proper use they serve a worthwhile purpose. The testimony next referred to the fact that there had been a number of grain seizure actions taken by the Food and Drug Administration after discovering treated seed in grain. This fact and the accompanying fact that there had been no known additional instances of animals or humans suffering from ingestion of Panogen indicates that the red dye which the manufacturers of Panogen had put on their products was effective to avoid misuse.
This then was the evidence supporting a determination of imminent hazard to the public, and it seems clear that the evidence wholly fails to support the determination of imminency.
In this country I dare say there are very few barns, medicine chests or even kitchen cupboards which do not have products contained therein which would be extremely detrimental to people if misused. In the case on appeal the evidence amply supports a misuse of the product in the Alamogordo situation. The fact that misuse may result in damage does not in my opinion make a product imminently hazardous in the absence of an evidentiary showing that such misuse is frequent or was reasonably likely to occur.
The doctrine of exhaustion of administrative remedies is pragmatic in origin. It wears no constitutional halo. I can conceive no valid justification for its wooden and mechanistic application where the expertise which the rationale of the rule seeks to protect is so singularly not exercised, as in the case before us. Nor does the practicality of the doctrine in the overall scheme of governmental operation necessarily require slavish homage to it.
While the present majority opinion concludes that there was no finality in the determination of the secretary that Panogen was an imminent hazard to the public and therefore judicial intervention was not appropriate, I must also respectfully disagree with this conclusion for the reasons set forth in the opinion of July 15, 1970. In addition, it is to be observed that in one sense no action of an administrative body or even of a court is final since the same body or court can subsequently take other different action. However, this does not preclude finality impact in an order such as the one here involved. Further administrative proceedings in the present case will be for a determination of whether there is a hazard to the public which would require preclusion from the marketplace. On the other hand, the issue which precipitated this litigation, determined without hearing and indeed without proper consideration, was not the hazard question per se but the imminent hazard question.
The present majority opinion expresses fear of the effects of interference with the administrative process by premature judicial intervention. We are dealing, however, with a narrow issue in that we are concerned with the imminent hazard situation only.
This emergency power is one which it seems reasonable to assume is used only sparingly, or at least should be used sparingly, where a genuine imminent hazard situation exists which would be detrimental to the public. Such cases will arise only infrequently. But when the emergency power is exercised, the administrative agency should be, in my opinion, subject to judicial intervention and review, likewise on an immediate basis, if the emergency action was taken without adequate determining principle or was unreasoned.
One further aspect of the case before us requires consideration. The district judge, who heard the testimony and observed the witnesses,, made certain findings of fact and conclusions of law in his order granting the preliminary injunction. He found that the suspension of the Panogen seed treatment products on the basis that they constituted an imminent hazard to the public was arbitrary and capricious in that there was no evidence to support the alleged incidents nor was there any evidence that Panogen was so unsafe as to create an imminent hazard to the public which could not be corrected by means other than suspension without a hearing. The present majority opinion does not consider the question of whether the statement that the action was arbitrary and capricious was a finding of fact, a conclusion of law or a mixture of the two.
While in the opinion of July 15, 1970 we did assume arguendo with regard to whether a motion to dismiss admitted that the actions were arbitrary and capricious that these were legal conclusions, the determination of the matter was not necessary for the result reached. Now that the district court, however, is being reversed, it is necessary that a determination be made on this issue.
The necessity of meeting this issue arises from Rule 52(a) of the Federal Rules of Civil Procedure, which in effect states that findings of fact should not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Where the trial court findings of fact are not clearly erroneous they must stand undisturbed on appeal. G. C. Kirn Advertising Sign Co. v. Admiral Corp., 170 F.2d 499, 501 (7th Cir. 1948). See also Dearborn National Casualty Co. v. Consumers Petroleum Co., 178 F.2d 277, 279 (7th Cir. 1949). The question of what is a finding of fact and what is a conclusion of law is often a difficult one of solution.
Professor Wright in 2B Barron & Holtzoff, Federal Practice & Procedure, § 1137 (1969 pocket part p. 203), states the following:
The Ninth Circuit has endeavored to formulate a test for distinguishing between findings of fact and conclusions of law. “A finding of fact, to which the clearly erroneous rule applies,” it says, “is a finding based on the ‘fact-finding tribunal’s experience with the mainsprings of human conduct.’ A conclusion of law would be a eonclusion based on application of a legal standard.” [footnote citation is to Lundgren v. Freeman, 307 F.2d 104, 115 (9th Cir. 1962)] On this analysis it concluded that a finding of mutual mistake was derived, in part at least, from the trial judge’s experience with human affairs, and thus could not be set aside unless clearly erroneous.
On the foregoing basis it would appear that the determination that action was arbitrary and capricious is a finding based on the mainsprings of human conduct rather than on the application of a legal standard; and that being so, I am not persuaded that the majority opinion has developed any basis for a suspension of Rule 52(a), particularly in view of the fact that this is an appeal from the granting of an interlocutory injunction.
In any event, however, I do not deem it necessary in order to sustain the trial court’s granting of the motion for a temporary injunction that we determine that the characterization as arbitrary and capricious was fact or law because independently the record does, in my opinion, show that the action was arbitrary and capricious.
On rehearing, counsel for the government was asked if the government contended that there was no immediate judicial review of arbitrary and capricious action on the part of the secretary. Counsel parried the question by stating that it was inconceivable to him that the secretary could act arbitrarily and capriciously. When pressed with the hypothetical question and reminded that historians had recorded the fact that arbitrary and capricious action on the part of governmental leaders was not unknown, counsel conceded that if the secretary had committed arbitrary and capricious action, which he still would not concede, it would seem to be the basis for prompt judicial intervention.
The result for which I contend in this dissenting opinion, which was the result reached in the opinion of July 15, 1970, would not have stopped administrative procedures on the issue of whether Panogen should eventually be removed from the market. The opinion carefully pointed out that the decision would permit a rational and objective administrative procedure to go forward, giving due weight to all phases of the matter, including that which is probably of long range concern to the government, the ecological aspects. The opinion made it possible for the determination to be made with a thorough airing of the adequate determining principles. United States v. Carmack, 329 U.S. 230, 243, 67 S.Ct. 252, 91 L.Ed. 209 (1946).
A recent news item concerns a charge by a radiologist to the effect that radioactive exhaust gas from a nuclear power reactor in an electrical generating plant in Illinois had caused an alarming increase in infant mortality in that state. The Atomic Energy Commission denied the charge. If statutory authority were accorded to this or to any other agency to take action without notice in case of imminent hazard, the commission could have issued an order shutting down the plant. Such drastic power, which is still exercised by human beings, could well lead to government by whim. The relationship between the public health and the side effects from the operation of various types of manufacturing operations as well as from the product made by such operations is, because of burgeoning population, bound to be a matter of greater and greater intensive study. Charges can be easily made, often times by a person seeking publicity. There is a strong undercurrent of emotional appeal in these charges, particularly when children and the impairment of their health is involved. The emergency power is one which should not be invoked without real and convincing cause and not on a prima facie basis.
Even with regard to the Alamogordo incident, which apparently was the real basis of the secretary’s order of suspension, this was not an established fact but was assumed for the purpose of the case to have been caused by the Panogen. As the district judge stated on the assumption basis, “the record establishes a unique combination of circumstances which are unlikely to recur, including diversion of treated material to animal feed, disregard of label cautions and warnings, slaughter of a hog after it showed signs of illness, and continued eating by a single family of contaminated food from a slaughtered hog after twelve of the same pen of hogs had died and two had become blind.”
Just as counsel for the government was unwilling to concede the possibility of arbitrary and capricious action on the part of the secretary, the courts generally have apparently been somewhat reluctant to find that governmental action was so bottomed. Implicit, however, in the cases has been the recognition that if this were the fact the administrative action would be struck down. See, for example, United States v. Carmack, 329 U.S. 230, 243, 67 S.Ct. 252, 91 L.Ed. 209 (1946); Pauley v. United States, 419 F.2d 1061, 1066 (7th Cir. 1969).
Arbitrary or capricious action must be set aside. Lewis v. Flemming, 176 F. Supp. 872, 874 (E.D. Ark. 1959); Williams v. Celebrezze, 243 F.Supp. 103, 107 (E.D. Ark. 1965).
In Preferred Insurance Co. v. United States, 222 F.2d 942, 947 (9th Cir. 1955), the statute there involved did not provide for a judicial review of administrative action on claims, “but even if it did, administrative findings of fact would have to be accepted by a court unless arbitrary, capricious or without evidentiary support.” (emphasis added).
Another significant aspect in the present case is that the plaintiffs and the other distributors and manufacturers were not required to recall existing stocks from customers. While it is true that problems of disposition presented themselves, these have been surmounted where a real and hazardous situation existed of significant proportions such as in the nerve gas situation. If Panogen were of the caliber of imminent hazard to the public requiring a suspension order, certainly it would seem that an absolute recall would have been necessary.
The present majority opinion asserts that once the district court has inserted itself into the administrative process it becomes wasteful or pointless to return the matter to the agency. I cannot agree. In fact, the preliminary injunction permitted the government to issue its notices of cancellation of the registration after public hearings permitted by the act. Both the order of the district court and our opinion of July 15, 1970 contemplated that all that was being done was that the suspension from the market without hearing was being eliminated but that further hearings on the ultimate question of manufacturing and marketing of this particular product would proceed expeditiously.
The present majority opinion also states that the plaintiff’s direct and immediate concern is the impact of suspension on their business rather than the claimed danger to farmers and consumers from removal of their product. No doubt this is true although the profit motive is not a dishonorable one in our country. Even if it is true, this makes the detriment of the elimination of the product no less real to the farmers and consumers.
It is with regret that I have had to disagree with my brothers of the court but I have done so, and have done so at length, because of my sincere conviction not only that an incorrect result was reached in an individual case but that the ease would seem to permit, if - not encourage, a type of governmental procedure without hearing which is inconsistent with the protection that we, except in very unusual or emergency situations, attempt to afford to each citizen, no matter how mean or humble he may be.
I therefore would affirm the district court’s order granting the preliminary injunction.
. “The words ‘arbitrary and capricious’ are a technical legal phrase. They are not used in their popular sense and in this connection have no opprobrious connotation. In the eyes of the law an administrative action not supported by evidence or lacking a rational basis, is deemed arbitrary and capricious. Decisions of administrative officers may not be predicated on their personal desires or views, no matter how sincere they may be, O’Boyle v. Coe, D.C., 155 F.Supp. 581, 584.” O’Beirne v. Overholser, 193 F.Supp. 652, 656 (D.D.C.1961).
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SWYGERT, Chief Judge.
I concur in Judge PELL’S dissent. Further I adhere to the views expressed in my concurring opinion when a division of this court originally considered and decided the matters presented on this appeal.
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KOZINSKI, Circuit Judge:
The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA), provides that the “owner” of a contaminated facility is liable for the costs of cleanup. It is left for the courts, however, to clean up the mess left behind by complicated financial transactions. We search for the CERCLA owner.
Facts
Bergsoe Metals is a Delaware corporation formed in 1978 for the purpose of conducting a lead recycling operation. The East Asiatic Company, Ltd., The East Asiatic Company, Inc. and Heidelberg Eastern, Inc. (collectively, EAC) are owners of Berg-soe’s stock. The Port of St. Helens is a municipal corporation organized under the laws of Oregon and empowered to issue revenue bonds to promote industrial development in the St. Helens, Oregon area.
Sometime in 1978, representatives of Bergsoe contacted the Port to discuss the building of a lead recycling facility in St. Helens. These discussions resulted in a Memorandum of Agreement signed December 13, 1978. The Port therein agreed to issue industrial development revenue bonds and pollution control revenue bonds to provide funds for the acquisition of land and the construction of a secondary lead recycling plant and related pollution control equipment in St. Helens.
On December 28, 1979, the Port sold Bergsoe 50 acres of land on which to construct the plant. In exchange, Bergsoe gave the Port a promissory note for $400,-000 and a mortgage on the property.
Through a series of interlocking transactions that closed on June 5, 1981, Bergsoe, the Port and the United States National Bank of Oregon completed the financing for the recycling operation. At the heart of this financing were the revenue bonds, issued by the Port. The Bank held the bonds in trust for the bondholders. The revenue from the bond sales went to Berg-soe, which was obligated to pay the money owed on the bonds to the Bank.
The first transaction was a sale-and-lease-back arrangement between Bergsoe and the Port. Bergsoe conveyed to the Port by warranty deed the 50 acres and the recycling plant to be built there. The Port and Bergsoe then entered into two leases to cover the property and the plant. Berg-soe agreed to construct the plant and to pay rent on the leases directly to the Bank. That rent was equal to the principal and interest to come due on the bonds. The leases gave Bergsoe the option of purchasing the entire facility for $100 once the bonds had been paid in full.
The second transaction involved two mortgage and indentures of trust between the Port and the Bank, corresponding to the two leases. The Port agreed to issue its revenue bonds, and mortgaged to the Bank, as trustee for the bondholders, the property and recycling plant. The Port also assigned to the Bank all its rights under, and revenues to be generated from, the leases. The Bank agreed to hold the amounts generated from sale of the bonds in a construction fund to be paid to Berg-soe. The indentures obligated the Bank to collect rent under the leases and to apply them in retirement of the bonds.
In addition to acting as trustee, the Bank purchased the bonds. In partial consideration for this purchase, the Port signed a subordination agreement whereby the Port subordinated all its rights under the prior $400,000 obligation to the Bank’s rights under the leases.
The Port also placed in escrow with the Bank the warranty deeds, bills of sale and UCC release statements, with instructions to deliver the documents to Bergsoe when the company exercised its option to purchase the facility.
The Bergsoe recycling plant began operation in the spring of 1982 and soon experienced financial difficulties. In September 1983, the Bank declared Bergsoe in default on the leases. Subsequently, the Bank and Bergsoe agreed upon a workout arrangement, whereby Front Street Management Corporation would manage the recycling facility. In exchange, the Bank and the Port would agree not to foreclose under the leases or bond indentures. On June 30, 1984, the Bank, Bergsoe, Front Street and the Port executed various workout documents.
The plant did no better under Front Street’s management than it had under Bergsoe’s, and the plant shut down in 1986. On October 21 of that year, the Bank put Bergsoe into involuntary bankruptcy under Chapter 11 of the Bankruptcy Code. By that time, the Oregon Department of Environmental Quality had determined that various hazardous substances had contaminated the plant site. In September 1987, the Bank and the trustee in bankruptcy filed suit against EAC, the companies who own Bergsoe, to collect on Bergsoe’s debts. The plaintiffs subsequently amended their complaint to request a declaration that EAC is liable for the costs of cleaning up the environmental contamination.
The defendants filed a counterclaim, including a third party complaint against the Port, alleging that the Bank and the Port are liable for the costs of cleanup under CERCLA. The Port moved for summary judgment, alleging that it does not own the recycling plant for CERCLA purposes, and therefore has no CERCLA liability. The bankruptcy court granted the motion, which the district court affirmed. EAC appeals the grant of summary judgment in favor of the Port.
Discussion
CERCLA holds the “owner” of a facility liable for the costs of cleaning up hazardous substances released at the facility. 42 U.S.C. §§ 9607(a)(1) & (2). The CERCLA definition of “owner” is not, however, coextensive with all possible uses of that term; it specifically excludes “a person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the vessel or facility.” 42 U.S.C. § 9601(20)(A). CERCLA thus protects secured creditors who do not participate in management of the facility. See United States v. Fleet Factors Corp., 901 F.2d 1550, 1554 (11th Cir.1990).
There is no question that, in at least one sense, the Port owns the Bergsoe recycling plant: the deed to the property is in the name of the Port. The Port nonetheless maintains that it is not a CERCLA owner because it falls within the security interest exception.
In order for the Port to win on summary judgment, the undisputed facts must demonstrate both that the Port holds indicia of ownership primarily to protect its security interest in the Bergsoe plant and that it did not participate in the management of the plant. If, after viewing the evidence most favorably to EAC, there is a material issue as to either of these points, summary judgment is inappropriate. See Karamanos v. Egger, 882 F.2d 447, 449 (9th Cir.1989).
I. Security Interest
That the Port holds paper title to the Bergsoe plant does not, alone, make it an owner of the facility for purposes of CERCLA; under the security interest exception the court must determine why the Port holds such indicia of ownership. Here, there is no doubt that the Port has the deed in the plant primarily to ensure that Bergsoe would meet its obligations under the leases and therefore under the bonds. In other words, the Port has a security interest in the property.
The Port is in somewhat of a different position than the ordinary secured creditor, who holds indicia of ownership to ensure that it will be paid what it is owed. Here, the Port held title to the property not to ensure that it would receive payment, but to guarantee that Bergsoe would cover the Port’s own indebtedness under the bonds. This does not change the analysis. Indeed, it demonstrates just how divorced from the Bergsoe operation the Port was. Essentially, the Bank financed the Bergsoe plant; the Port’s only involvement was to give its approval to the project and to issue the bonds that served as the vehicle for the financing. The Port received the warranty deeds as part of a transaction whose sole purpose was to provide financing for the plant.
The relevant evidence that the Port’s ownership was merely part of the financing arrangement is to be found in the Port/Bergsoe leases. These documents do grant to the Port the deeds to the property, and each document is described as a “lease” rather than as a “security agreement.” Nonetheless, the leases give to Bergsoe all other traditional indicia of ownership, such as responsibility for the payment of taxes and for the purchase of insurance; significantly, the leases assign to Bergsoe the risk of loss from destruction or damage to the property.
Even more telling, however, are the terms of repayment under the leases. Bergsoe’s “rent” was equal to the principal and interest due under the bonds. The money was to be paid directly to the Bank as trustee for the bondholders. The leases expired not on a specific date, but when the money owed under the bonds was paid off. And, when the bonds were paid off, Berg-soe could purchase full title to the property for the nominal sum of $100. To facilitate this transaction, the Port had placed the deeds and other relevant documents in escrow with the Bank.
EAC points to nothing other than the leases to demonstrate that the Port’s indi-cia of ownership are not primarily to protect a security interest. The leases create no material issue of fact on this question.
II. Participation in Management
The Port may nonetheless be liable under CERCLA if it participated in the management of the Bergsoe plant. Unfortunately, CERCLA does not define the phrase “participating in the management ... of a facility.” The statute thus provides little guidance as to how much control over a facility a secured creditor can exert before it will be liable for cleanup.
To date, only one federal circuit has addressed this question. In Fleet Factors, the Eleventh Circuit considered several alternative rules. The government proposed that a secured creditor that participates in any manner in the management of a facility is excluded from the security interest exemption. Id, 901 F.2d at 1554. Fleet Factors proposed a rule adopted by certain district courts, that participation in financial management is allowable, but participation in the day-to-day or operational management of a facility will subject the creditor to liability. Id. The Eleventh Circuit adopted an intermediate rule:
[A] secured creditor may incur section 9607(a)(2) liability ... by participating in the financial management of a facility to a degree indicating a capacity to influence the corporation’s treatment of hazardous wastes. It is not necessary for the secured creditor actually to involve itself in the day-to-day operations of the facility in order to be liable — although such conduct will certainly lead to the loss of the protection of the statutory exemption. Nor is it necessary for the secured creditor to participate in management decisions related to hazardous waste. Rather, a secured creditor will be liable if its involvement with the management of the facility is sufficiently broad to support the inference that it could affect hazardous waste disposal decisions if it so chose.
Id, at 1557-58.
We leave for another day the establishment of a Ninth Circuit rule on this difficult issue. It is clear from the statute that, whatever the precise parameters of “participation,” there must be some actual management of the facility before a secured creditor will fall outside the exception. Here there was none, and we therefore need not engage in line drawing.
EAC points to several facts that it claims demonstrate that the Port participated in the management of the Bergsoe plant. First, that the Port “negotiated and encouraged” the building of the Bergsoe plant. Brief of Appellant at 19. Were this sufficient to remove a creditor from the security interest exception, the exception would cease to have any meaning. Creditors do not give their money blindly, particularly the large sums of money needed to build industrial facilities. Lenders normally extend credit only after gathering a great deal of information about the proposed project, and only when they have some degree of confidence that the project will be successful. A secured creditor will always have some input at the planning stages of any large-scale project and, by the extension of financing, will perforce encourage those projects it feels will be successful. If this were “management,” no secured creditor would ever be protected.
EAC next points to certain of the Port’s rights under the leases, such as the right to inspect the premises and to reenter and take possession upon foreclosure. This argument suffers from the same flaw as the last; nearly all secured creditors have these rights. That a secured creditor reserves certain rights to protect its investment does not put it in a position of management. What is critical is not what rights the Port had, but what it did. The CERCLA security interest exception uses the active “participating in management. Regardless of what rights the Port may-have had, it cannot have participated in management if it never exercised them. And there is no evidence that the Port exercised any control over Bergsoe once the two parties signed the leases.
Finally, EAC argues that the Port participated in management through its actions in giving Front Street control at the plant as part of the 1984 workout. There is, however, no evidence that the Port participated in the decision to hire Front Street; those negotiations were entirely between the Bank, Bergsoe and Front Street. The Port’s participation was limited to an agreement between itself, the Bank and Bergsoe. The Port’s sole obligation under the agreement was to forego exercising any of its default remedies under the leases so that the workout might proceed. There were separate agreements between Bergsoe and Front Street and between the Bank and Bergsoe. The Port never entered into a contract with Front Street, and there is no evidence of any negotiations between the two.
EAC contends, nonetheless, that the Port is responsible for the Bank’s actions in placing Front Street in control because the Bank was acting as the Port’s agent, enforcing the Port’s rights under the leases. This assertion is belied by the terms of the mortgage and indentures of trust between the Port and the Bank, wherein the Port assigns to the Bank “all right, title and interest of the [Port] in the Lease[s].” ER I at 107. Thus, to the extent the Bank was attempting to enforce the lease terms, it did so pursuant to its own rights under the leases. More to the point, it was not the leases that the Bank was worried about, but the bonds. As trustee for the bondholders, the Bank had a duty to try to keep the plant running so that Bergsoe could pay the principal and interest under the bonds. In negotiating the workout, the Bank was acting not as the Port’s agent, but as the bondholders’.
Conclusion
There being no material issue of fact, we conclude that the Port holds indicia of ownership primarily to protect its security interest and that it did not participate in the management of the Bergsoe recycling plant. The Port is therefore not an owner under 42 U.S.C. § 9601(20)(A), and not liable for cleanup costs under 42 U.S.C. § 9607. The judgment of the district court is affirmed.
. CERCLA also holds liable for cleanup parties other than the owner of a facility. See 42 U.S.C. § 9607(a). EAC does not contend, however, that the Port would be liable under any of these other provisions.
. No doubt the Port, as a municipal corporation empowered to promote industrial development, encouraged Bergsoe to build the plant for reasons other than the Port’s own financial gain. A creditor’s motivation is irrelevant, however, to the issue of whether its actions constitute management.
. EAC also contends that the Port had the right “to direct that hazardous waste be stored properly.” Brief of Appellant at 20. We find nothing in the leases granting the Port such a right. In any event, there is no evidence that the Port ever exercised this right.
EAC generally errs in equating the power to manage with actual management. As did the Eleventh Circuit in Fleet Factors, we hold that a creditor must, as a threshold matter, exercise actual management authority before it can be held liable for action or inaction which results in the discharge of hazardous wastes. Merely having the power to get involved in management, but failing to exercise it, is not enough.
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BLOCK, District Judge
Judges Berzon and Murguia have voted to deny the petitions for rehearing en banc, and Judge Block so recommends. The full court has been advised of the petitions and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Accordingly, the petitions for rehearing en banc are DENIED.
The Opinion filed December 12, 2017, appearing at 876 F.3d 1242 (9th Cir. 2017), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.
Judges Berzon and Murguia have voted to deny the petitions for rehearing en banc, and Judge Block so recommends. The full court has been advised of the petitions and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Accordingly, the petitions for rehearing en banc are DENIED .
The Opinion filed December 12, 2017, appearing at 876 F.3d 1242 (9th Cir. 2017), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.
In National Mining Association v. Zinke , 877 F.3d 845 (9th Cir. 2017), we upheld the decision of the Secretary of the Interior to withdraw, for twenty years, more than one million acres of public lands around Grand Canyon National Park from new mining claims. That withdrawal did not extinguish "valid existing rights." In these consolidated appeals, we consider challenges by the Havasupai Tribe ("the Tribe") and three environmental groups-Grand Canyon Trust, Center for Biological Diversity and Sierra Club (collectively, "the Trust")-to the determination of the United States Forest Service (the "Forest Service") that Energy Fuels Resources (USA), Inc., and EFR Arizona Strip LLC (collectively, "Energy Fuels") had a valid existing right to operate a uranium mine on land within the withdrawal area. As elaborated below, we affirm, with one exception, the district court's order rejecting those challenges.
I
Much of what we said in National Mining Association concerning the history of uranium mining in the area and the Secretary's withdrawal decision is also relevant here. To that we add some additional background regarding the particular mine at issue in this case.
Grand Canyon National Park is bordered to the north and south by the Kaibab National Forest. The southern portion of the forest-which is included in the withdrawal area-contains Red Butte, a site of religious and cultural significance to the Tribe.
In 1988, the Forest Service approved a plan to build and operate what became known as Canyon Mine, a 17.4-acre uranium mine in the area around Red Butte. During the approval process, the Forest Service prepared an Environmental Impact Statement ("EIS") pursuant to the National Environmental Policy Act of 1969 ("NEPA"). NEPA requires an EIS for any "major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).
At that time, the Forest Service also addressed the mine's impact under the National Historic Preservation Act of 1966 ("NHPA"). Section 106 of the NHPA requires federal agencies, prior to issuing a license for any "undertaking," to "take into account the effect of the undertaking on any [historic property]." Pub. L. No. 89-665, § 106 (codified, as amended, at 54 U.S.C. § 306108 ). Historic property is defined as "any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register." 54 U.S.C. § 300308.
Based on its review, the Forest Service required mitigation measures to minimize the impact on possible relics buried on the site of the mine. The review did not include nearby Red Butte because that site was not eligible for inclusion on the National Register until 1992. See National Historical Preservation Act Amendments of 1992, Pub. L. No. 102-575, tit. XL, § 4006 (making "[p]roperties of traditional religious and cultural importance to an Indian tribe" eligible for inclusion on the National Register). The EIS, however, did address the tribal religious significance of Red Butte.
The Tribe sought judicial review, but both the district court and this Court rejected the challenge. See Havasupai Tribe v. United States , 752 F.Supp. 1471 (D. Ariz. 1990), aff'd sub nom. Havasupai Tribe v. Robertson , 943 F.2d 32 (9th Cir. 1991), cert. denied , 503 U.S. 959, 112 S.Ct. 1559, 118 L.Ed.2d 207 (1992). The mine operator built surface facilities and sank the first fifty feet of a 1,400-foot shaft, but placed the mine on "standby" status in 1992 due to the unfavorable conditions in the uranium market that we described in National Mining Association .
As noted, the Secretary's withdrawal decision was "subject to valid existing rights." 77 Fed. Reg. 2563 (Jan. 18, 2012). A few months before the decision became final, Energy Fuels-which had become Canyon Mine's owner-notified the Forest Service that it intended to return the mine to active operations. At the Service's request, Energy Fuels agreed not to resume sinking the mineshaft pending review of its claim of existing rights.
On April 18, 2012, the Forest Service issued a "Mineral Report." It found that Energy Fuels' predecessors-in-interest had "located" mining claims at the site in 1978 and "discovered" uranium ore there between 1978 and 1982. It further found that there were 84,207 tons of uranium ore on the site, and that "under present economic conditions, the uranium deposit on the claims could be mined, removed, transported, milled and marketed at a profit." Based on those findings, the Forest Service concluded that Energy Fuel had "valid existing rights that were established prior to the mineral withdrawal."
The Forest Service also reviewed its 1988 decision, including its EIS and the mine's approved plan of operations ("PoO"), "for any changes in laws, policies or regulations that might require additional federal actions to be taken before operations resume." In a "Mine Review" dated June 25, 2012, it concluded that the existing PoO was "still in effect and no amendment or modification to the PoO is required before Canyon Mine resumes operations under the approved PoO." It further concluded that "[n]o new federal action subject to further NEPA analysis is required for resumption of operations of the Canyon Mine."
With respect to historic preservation, the Mine Review concluded that "there will be no new federal undertakings subject to NHPA Section 106 compliance." It noted, however, that Red Butte had become eligible for inclusion on the National Register, and opined that the site "could be considered a newly 'discovered' historic property." Applying the regulation applicable to such discoveries, 36 C.F.R. § 800.13(b)(3), the Forest Service immediately contacted the Tribe to "enter into government-to-government consultation" to "develop 'actions' to resolve or minimize the adverse effects" on Red Butte. In response, the Tribe insisted on a revised PoO, a supplemental EIS and a full consultation under section 106 of the NHPA. The Forest Service and the Tribe continued to correspond, but never settled on a specific plan of action. The Mine Review alludes to the likely reason: "Tribes have commented that most anticipated impacts, including the most serious impacts, cannot be mitigated if uranium mining is conducted at the Canyon Mine site."
Consultation with the Tribe ended in March 2013, when the Tribe and the Trust jointly filed suit against the Forest Service in the district court. Energy Fuels intervened as a defendant.
As amended, the complaint asserted four claims under the Administrative Procedure Act ("APA"):
1. the Forest Service's determination that Energy Fuels had valid existing rights to operate the Canyon Mine notwithstanding the January 2012 withdrawal was a "major federal action significantly affecting the environment," and, therefore, the service violated the NEPA by not preparing an EIS in connection with its determination;
2. the Forest Service's determination was an "undertaking," and, therefore, the service violated the NHPA by not conducting a full consultation under section 106 in connection with its determination;
3. alternatively, the Forest Service violated the NHPA by not properly updating its original section 106 analysis to account for the impact on Red Butte; and
4. the Forest Service violated several federal laws by failing to take various costs into account in its determination that Canyon Mine could be operated at a profit.
As relief, the plaintiffs sought a declaration that the Forest Service was acting in violation of the NEPA, the NHPA and other laws; an order setting aside any "approvals or authorizations" for operations at Canyon Mine; and an injunction prohibiting "any further uranium exploration or mining-related activities at the Canyon Mine unless and until the Forest Service fully complies with all applicable laws."
The parties cross-moved for summary judgment. In an order dated April 7, 2015, the district court held (1) that the plaintiffs had Article III standing, (2) that the plaintiffs lacked prudential standing with respect to their fourth claim, and (3) that the Mineral Report-which the district court referred to as the "VER [Valid Existing Rights] Determination"-was a final agency action subject to review under the APA. See Grand Canyon Tr. v. Williams , 98 F.Supp.3d 1044, 1055-61 (D. Ariz. 2015). Turning to the merits, the district court held (1) that the Mineral Report was not a "major federal action" requiring an EIS under the NEPA; (2) that the report was not an "undertaking" requiring a full section 106 consultation under the NHPA; (3) that the Forest Service's decision to consider the effect on Red Butte under 36 C.F.R. § 800.13(b)(3) was reasonable; and (4) that the Forest Service had complied with that regulation. See id. at 1062-73.
Both the Tribe and the Trust timely appealed.
II
The Forest Service argues that we lack jurisdiction because its determination that Energy Fuels has valid existing rights was not a final agency action. See Ukiah Valley Med. Ctr. v. FTC , 911 F.2d 261, 266 (9th Cir. 1990) (" '[F]inal agency action' is a jurisdictional requirement imposed by [ 5 U.S.C. § 704 ]."). We review this threshold issue de novo. See Minard Run Oil Co. v. U.S. Forest Serv. , 670 F.3d 236, 247 (3d Cir. 2011).
" '[A]gency action' includes the whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act[.]" 5 U.S.C. § 551(13). "[R]elief," in turn, includes the "recognition of a claim, right, immunity, privilege, exemption, or exception." Id. § 551(11)(B).
The Forest Service claims that it has no authority to recognize mining rights, and that the Mineral Report represents only the agency's "opinion" as to their validity. But whether or not the Mineral Report was legally required, it was prepared. Its conclusion that Energy Fuels had valid existing rights at the time of the withdrawal falls within the plain meaning of "recognition of a claim."
We further conclude that the Mineral Report was final. "As a general matter, two conditions must be satisfied for agency action to be 'final[.]' " Bennett v. Spear , 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). "First, the action must mark the consummation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature." Id. at 177-78, 117 S.Ct. 1154 (citation and internal quotation marks omitted). It is true that the final decision to contest a claim of existing rights rests with the Department of the Interior's Bureau of Land Management ("BLM"). See Best v. Humboldt Placer Mining Co. , 371 U.S. 334, 336, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). If, however, the Forest Service finds a claim is valid, nothing else happens. The district court sensibly described that outcome as "the Forest Service's 'last word' on the validity of the Canyon Mine mineral rights," Grand Canyon Tr. v. Williams , 38 F.Supp.3d 1073, 1078 (D. Ariz. 2014), and we agree with that description.
In addition, to be final, "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett , 520 U.S. at 178, 117 S.Ct. 1154 (internal quotation marks omitted). Rights to a mineral deposit on public land are not conferred by agency action; they are acquired by the miner's own actions of location and discovery. See American Law of Mining § 4.11 (2d ed. 1997) ("[The prospector] may seek 'valuable minerals' and, if he finds them, may initiate a vested right without the approval of anyone else, including representatives of the government that owns the land."). Nevertheless, the Mineral Report determined that such rights existed with respect to Canyon Mine, and that is all Bennett requires.
We have observed that "courts consider whether the practical effects of an agency's decision make it a final agency action, regardless of how it is labeled." Columbia Riverkeeper v. U.S. Coast Guard , 761 F.3d 1084, 1094-95 (9th Cir. 2014). We therefore focus on both the "practical and legal effects of the agency action," and define the finality requirement "in a pragmatic and flexible manner." Or. Nat. Desert Ass'n v. U.S. Forest Serv. , 465 F.3d 977, 982 (9th Cir. 2006) (citations omitted). We agree with the district court's assessment that the Mineral Report was a practical requirement to the continued operation of Canyon Mine because "the Forest Service, Energy Fuels, and interested tribes all understood that mine operations would not resume until the VER Determination was completed." Grand Canyon Tr. , 38 F.Supp.3d at 1079.
III
The challenges to the merits of the district court's judgment raise three issues: (A) Was the Mineral Report a "major federal action" under the NEPA? (B) Did the Mineral Report approve an "undertaking" under the NHPA? (C) Did the Trust fall within the zone of interests of either the Federal Land Policy and Management Act of 1976 ("FLPMA") or the General Mining Act of 1872 ("Mining Act")? Our review of each question is de novo. See N. Cheyenne Tribe v. Norton , 503 F.3d 836, 845 (9th Cir. 2007) (compliance with NEPA and NHPA on summary judgment); Mills v. United States , 742 F.3d 400, 406 (9th Cir. 2014) (zone of interests).
A. NEPA
We have held that "where a proposed federal action would not change the status quo, an EIS is not necessary." Upper Snake River Chapter of Trout Unlimited v. Hodel , 921 F.2d 232, 235 (9th Cir. 1990). Nor is an EIS necessary to "discuss the environmental effects of mere continued operation of a facility." Burbank Anti-Noise Grp. v. Goldschmidt , 623 F.2d 115, 116 (9th Cir. 1980). We applied those general principles in Center for Biological Diversity v. Salazar , 706 F.3d 1085 (9th Cir. 2013) (" CBD ").
At issue in CBD was the resumption of mining at a uranium mine, "after a seventeen-year hiatus, under a plan of operations that BLM approved in 1988." 706 F.3d at 1088. We held that "no regulation requires approval of a new plan of operations before regular mining activities may recommence following a temporary closure." Id. at 1093. We further held that the original approval of the plan was a major federal action, but that "that action [wa]s completed when the plan [wa]s approved." Id. at 1095 (quoting, with alterations, Norton v. S. Utah Wilderness All. , 542 U.S. 55, 73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ). By contrast, in Pit River Tribe v. United States Forest Service , 469 F.3d 768 (9th Cir. 2006), we held that a lease extension was a major federal action that altered the status quo because without it, the lessee would not have been able to continue operating a power plant on the leased property. See id. at 784.
The district court correctly held that CBD , not Pit River , governs this case. As in CBD , the original approval of the plan of operations was a major federal action. And as in CBD , that action was complete when the plan was approved. Unlike Pit River , resumed operation of Canyon Mine did not require any additional government action. Therefore, the EIS prepared in 1988 satisfied the NEPA.
B. NHPA
As we explained, the NHPA requires consultation pursuant to section 106 prior to any "undertaking."
54 U.S.C. § 306108. As pertinent here, " 'undertaking' means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including ... those requiring a Federal permit, license, or approval[.]" Id. § 300320(3). Here, too, we agree with the district court that the Mineral Report did not "permit, license, or approv[e]" resumed operations at Canyon Mine; it simply acknowledged the continued vitality of the original approval of the PoO. Just as that approval was the only "major federal action" requiring an EIS under the NEPA, it was the only "undertaking" requiring consultation under the NHPA.
The Tribe concedes that the approval process in 1986 included the necessary consultation, and that the cultural and religious impacts on Red Butte were not included because they were not required to be at that time. It argues, however, that the NHPA imposes a continuing obligation on federal agencies to address the impact on historic property at any stage of an undertaking.
The statutory definition of "undertaking" dates from 1992. Prior to that, it was defined by the Advisory Council on Historic Preservation ("ACHP"), the agency charged with implementing the NHPA, to include "continuing projects, activities, or programs and any of their elements not previously considered under section 106." 36 C.F.R. § 800.2(o) (1991). But that definition was superseded by 54 U.S.C. § 300320(3), which omits the reference to continuing projects. The regulatory definition now conforms to the statutory definition. See 36 C.F.R. § 800.16(y). We therefore disagree with the Tribe that the current definition of "undertaking" encompasses a continuing obligation to evaluate previously approved projects.
Although continuing obligations have been removed from the definition of "undertaking," they remain in 36 C.F.R. § 800.13(b) :
If historic properties are discovered or unanticipated effects on historic properties found after the agency official has completed the section 106 process ..., the agency official shall make reasonable efforts to avoid, minimize or mitigate adverse effects to such properties and:
(1) If the agency official has not approved the undertaking or if construction on an approved undertaking has not commenced, consult to resolve adverse effects pursuant to § 800.6; or ...
(3) If the agency official has approved the undertaking and construction has commenced, determine actions that the agency official can take to resolve adverse effects, and notify the [state or tribal historical office], any Indian tribe ... that might attach religious and cultural significance to the affected property, and the [Advisory Council on Historic Preservation] within 48 hours of the discovery. The notification shall describe the agency official's assessment of National Register eligibility of the property and proposed actions to resolve the adverse effects. The ... Indian tribe ... and the Council shall respond within 48 hours of the notification. The agency official shall take into account their recommendations regarding National Register eligibility and proposed actions, and then carry out appropriate actions. The agency official shall provide the ... Indian tribe ... and the Council a report of the actions when they are completed.
As noted, the Forest Service concluded that this regulation applied to Canyon Mine. It further concluded that subsection (3) applied because construction had begun in the early 1990s, although it acknowledged that the 20-year hiatus presented a "somewhat unusual situation."
The Tribe objects that Red Butte was not a newly discovered historic property-and that the effect of operating a uranium mine near it was not unanticipated-because it had informed the Forest Service of the religious and cultural significance of this site decades earlier. While that is true, the Tribe does not dispute that Red Butte was not a "historic property" eligible for inclusion on the National Register until 2010. As a result, the NHPA did not obligate the Forest Service to take the site into account when it conducted a full section 106 consultation in 1986. And while we agree that eligibility for inclusion on the National Register is not exactly a "discovery," there is no other regulation requiring an agency to consider the impact on newly eligible sites after an undertaking is approved. In other words, by invoking § 800.13(b), the Forest Service may have given the Tribe more than it was entitled to demand.
The Tribe further argues that if § 800.13(b) applies, the Forest Service should have proceeded under § 800.13(b)(1), instead of § 800.13(b)(3). In sum, the agency must engage in a full section 106 consultation if it "has not [yet] approved the undertaking or if construction on an approved undertaking has not [yet] commenced." 36 C.F.R. § 800.13(b)(1). If, however, the agency "has approved the undertaking and construction has commenced," it can engage in a simplified process to "determine actions that the agency official can take to resolve adverse effects." Id. § 800.13(b)(3).
Canyon Mine fits squarely within the scope of subsection (3). The mine was approved in 1988, and construction of the surface facilities began shortly thereafter. The Tribe argues that subsection (3) was intended to address emergency situations, but there is no express limitation to such situations.
Finally, the Tribe briefly argues that the Forest Service did not comply with § 800.13(b)(3). Having reviewed the record, we conclude that the Forest Service made a good-faith effort to ascertain steps it could take to resolve the possible adverse effects of mining on Red Butte. If that effort was not successful, it is because the Tribe insisted on a full consultation under section 106, which was not legally required, and a complete ban on mining around Red Butte, which the Forest Service lacks the authority to impose.
C. FLPMA and Mining Act
The plaintiffs' fourth claim, advanced by the Trust, challenged the merits of the Forest Service's conclusion that Energy Fuels had valid existing rights predating the withdrawal because its predecessors-in-interest had discovered a deposit of uranium ore that could be "mined, removed, transported, milled and marketed at a profit." The district court did not address this claim, instead holding that the Trust lacked prudential standing to make it. See Grand Canyon Tr. , 98 F.Supp.3d at 1058-60.
"[A] person suing under the APA must satisfy not only Article III's standing requirements, but an additional test: The interest he asserts must be arguably within the zone of interests to be protected or regulated by the statute that he says was violated." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 224, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (internal quotation marks omitted). We agree with the district court that the Trust's fourth claim falls outside the Mining Act's zone of interests. See Grand Canyon Tr. , 98 F.Supp.3d at 1059 (explaining that the Mining Act's obvious intent was "to reward and encourage the discovery of minerals that are valuable in an economic sense," and that the Trust's interests are environmental and historical, but not economic).
However, the Trust also argued that the Forest Service's VER determination violated the FLPMA. The district court did not address the FLPMA's zone of interests in its analysis, concluding that "the sections of the [FLPMA] to which Plaintiffs cite do not relate to validity determinations or mineral examinations.... and do not provide the Court with any relevant law to apply in deciding claim four." Id. at 1059 n.8. It is true, of course, that the plaintiff must fall within the zone of interests of the "statutory provision whose violation forms the legal basis of his complaint." Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). However, we conclude that the FLPMA, and not the Mining Act, forms the legal basis of the Trust's fourth claim.
We described the FLPMA at length in National Mining Association . See 877 F.3d at 845. Relevant here, the FLPMA confers on the Secretary authority to withdraw federal lands for specified purposes, 43 U.S.C. § 1701(a)(4), but makes that authority "subject to valid existing rights." Pub. L. 94-579, § 701(h), 90 Stat. 2743, 2786 (1976). Thus, the VER determination that the Trust challenges in this case was made to decide whether Canyon Mine would be subject to a withdrawal made pursuant to the FLPMA.
Here, the Forest Service looked to the Mining Act to make its VER determination. However, that does not conclusively establish that the Mining Act, and not the FLPMA, forms the "legal basis" of the Trust's fourth claim. Had Energy Fuels claimed rights of a different nature, the Forest Service would have consulted a different statutory scheme, but it still would have made a VER determination. Regardless of the statute consulted, a VER determination affects whether activities on federal land can be limited under the FLPMA. See 43 U.S.C. § 1703(j) (stating that the purpose of a withdrawal is to "limit[ ] activities ... in order to maintain other public values"). That question implicates the Trust's asserted environmental concerns.
In sum, the Forest Service applied the relevant standards from the Mining Act to make its VER determination, but the Trust's claim that Canyon Mine should not be exempt from the withdrawal because the VER determination was in error remains a claim under the FLPMA. And since the Trust's claim seeks to vindicate some of the same concerns that underlie the Secretary's withdrawal authority, it falls within the statute's zone of interests. See W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 485-86 (9th Cir. 2011) (plaintiffs' environmental interests fell within the NEPA and the FLPMA's zone of interests); Desert Citizens Against Pollution v. Bisson , 231 F.3d 1172, 1179 (9th Cir. 2000) (plaintiffs' aesthetic and recreational interests fell within the FLPMA's zone of interests).
IV
With respect to the claims under the NEPA and NHPA, the judgment of the district court is AFFIRMED . With respect to the claim under the FLPMA, the judgment is VACATED and the case is REMANDED for consideration of the claim on the merits.
The district court also rejected the defendants' argument that two of the plaintiffs' claims were barred by collateral estoppel. See Grand Canyon Tr. , 98 F.Supp.3d at 1061-62. That ruling has not been challenged on appeal.
The Supreme Court recently reminded courts that "[o]nly Congress may determine a lower federal court's subject-matter jurisdiction." Hamer v. Neighborhood Hous. Servs. of Chi. , ---- U.S. ----, 138 S.Ct. 13, 17, 199 L.Ed.2d 249 (2017) (quoting Kontrick v. Ryan , 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ). Since the final agency action requirement is statutory, Hamer does not call into question its status as a jurisdictional limitation.
In the district court, the Forest Service further argued that the plaintiffs lacked Article III standing. It has not pursued that argument on appeal, but we are satisfied that the plaintiffs have suffered injuries in fact that are fairly traceable to the Service's actions and that could be redressed by a favorable judicial determination. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Continued uranium mining at Canyon Mine causes concrete injury to the Tribe's religious and cultural interests and the Trust's aesthetic and recreational interests. While the parties dispute whether continued mining required the Forest Service's approval, we must assume that it did in assessing standing. See Equity Lifestyle Props., Inc. v. Cty. of San Luis Obispo , 548 F.3d 1184, 1189 n.10 (9th Cir. 2008) ("The jurisdictional question of standing precedes, and does not require, analysis of the merits."). If the Tribe and Trust are correct that continued mining required approval, then their injuries are fairly traceable to that approval and could be redressed by setting it aside.
In a letter to the Forest Service, the ACHP opined that subsection (3) applies "where construction activities have begun and would be ongoing, and thus, the agency had limited time and opportunity for consultation." Normally, an agency's interpretation of its own ambiguous regulation is "controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotation marks omitted). Subsection (3) is not ambiguous. Moreover, the letter was motivated by a concern that proceeding under subsection (3) "would continue the unproductive conflict between the Forest Service and the Indian tribes that consider Red Butte a sacred place." We agree with the district court that the letter "appears to be more tactical advice than an interpretation of the regulation." Grand Canyon Tr. , 98 F.Supp.3d at 1070.
As the district court's language reflects, the additional test was, until recently, described as a matter of "prudential standing." See Match-E-Be-Nash-She-Wish , 567 U.S. at 224-28, 132 S.Ct. 2199. But in Lexmark International, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014), the Supreme Court called that description "misleading," id. at 125, 134 S.Ct. 1377, and "in some tension with ... the principle that a federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging," id. at 126, 134 S.Ct. 1377 (internal quotation marks and citations omitted). It held that the zone-of-interests inquiry instead asks "whether a legislatively conferred cause of action encompasses a particular plaintiff's claim," id. at 127, 134 S.Ct. 1377, or, in the APA context, whether a plaintiff's interests "are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue," id. at 130, 134 S.Ct. 1377 (internal quotation marks and citations omitted).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
The Army Corps of Engineers (“the Corps”) appeals from the district court’s remand order concerning an application for a dredge-and-fill permit by AJA Associates (“AJA”). Because the applicant has already been given the meaningful opportunity to be heard that due process requires, we conclude that the district court erred in remanding to the Corps for “an informal oral hearing.” Accordingly, we will instruct the district court to vacate its remand order and consider AJA’s remaining assertions of impropriety in the processing of its application.
I.
AJA owns property on a canal in Key Colony Beach, Florida. On September 21, 1983, the prior owner of AJA’s lot, Glen Cafferty, filed an application with the Corps for a permit to construct a seawall (or “bulkhead”), to backfill behind the seawall, and to dredge the base of the seawall. These activities require a permit under § 404 of the Clean Water Act, 33 U.S.C. § 1344 (1986), and § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (1986). The Jacksonville District of the Corps published a notice describing the application on November 2, 1984. Consideration of the application, number 84R-4588, had been delayed by the Corps until that time because it was negotiating with the City of Key Colony Beach to secure modification of a city ordinance that required seawall construction in the manner presented in the application.
On November 27, 1984, a Corps Area Engineer submitted a report that considered this permit application along with 15 other similar proposals for the construction of bulkheads. The report concluded with respect to application 84R-4588: “Recommend bulkhead be placed at landward edge of wetland zone and a pile supported pier for boat access. Recommend no dredging waterward of bulkhead line.” Record at 51. Thus the report did not support construction of the seawall as proposed.
In response to the public notice, the Environmental Protection Agency, the Fish and Wildlife Service of the Department of the Interior, and the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration submitted comments. Each agency recommended denial of the AJA permit application as well as denial of permits for the 15 other similar projects under consideration. The EPA comment, for example, describes the wetlands at issue in the permit applications as “a valuable public resource.” Wetlands provide “fish and wildlife habitat, hydrological buffering, shoreline stabilization, water purification, pollution and erosion traps, and food chain production.” According to the EPA, “[although the proposed projects would impact only a relatively small area of wetlands, the cumulative effects of many such projects would have a devastating impact on the wetland resources of the Florida Keys.” Record at 67.
Albert Ciardi, a principal in the AJA partnership, then received a letter from an official in the Corps Permit Section dated February 5, 1985, and addressed to Glen Boe, the manager who had actually submitted the permit application for the AJA lot. The letter requested a written response from the applicant addressing the three agency reports that had recommended denial of the application; copies of the three reports were sent along with the letter. In addition to addressing the agency reports, the Corps letter directed the applicant to provide a discussion of (1) the public and private need for the project, (2) why the proposed fill must be located in the wetland resource, and (3) alternative plans that have been considered and why the alternatives are not feasible.
Ciardi’s response states that the private need “is so that I can construct a home.” The public need “is that the project be constructed safely and that a monstrous pier not jut out in the middle of the waterway which can be dangerous to boat traffic.” Ciardi wrote that the seawall must be located in the wetland resource “[bjecause that is where it is.” He stated that he had not considered an alternative site “because I have spent good money for this site; ergo, it would not be feasible to spend money for another site.” Record at 86. Ciardi also wrote:
Having this information in your possession, why don’t you deny the permit so that we can take the matter before the courts and let a Judge make a decision that will determine once and for all the wisdom of your denial of a permit on a lot which is totally enclosed by two (2) built-up lots with bulkheads on a lagoon which has been in existence for many years without any significant environmental impact whatsoever.
Record at 87. Glen Boe submitted a five-page response to the agency reports, but began with the statement:
The issues surrounding the applications in question, as you well know, have been discussed at great and tedious length for at least a decade. It is difficult to believe that you really want to rehash the hours of discussions, letters, arguments, contentions, inspections, claims, counterclaims, allegations, opinions, suggestions, demands and lamentations that have spewed forth for lo these many years.
Record at 88. A July 30, 1985, letter from Ciardi to the Corps of Engineers complained about the length of time the application process was taking. Ciardi stated, “I am commencing with the construction of my seawall. See you in court!” Record at 119. In all, Ciardi wrote four threatening letters to the Corps. See Record at 86-87, 101-02, 104, 118-19.
On August 5, 1985, the Corps completed its evaluation of the permit application and notified Ciardi that it would not grant a permit. The Corps had prepared a seven-page “Statement of Findings on 84R-4588” for the administrative record. Ciardi apparently received a copy of this statement, which summarized all the information before the Corps and the basis for its decision, along with his notice of permit denial. The Corps found Ciardi’s proposed project “not in compliance with the Corps wetland policy since the area to be filled is considered a vital wetland that constitutes a valuable and productive public resource.” The Corps also concluded that the project was “not in accordance with the 404(b)(1) guidelines since practical alternatives are available for shoreline protection.” The permit was denied because the proposed work “would have an unacceptable adverse impact on an important public resource by destroying wetland vegetation and productive seagrasses.” Record at 127. The notice to Ciardi, signed by Colonel Charles Myers of the Corps, stated, “I have evaluated your application and the cumulative impacts of permitting many other such applications in the city of Key Colony Beach and have determined there would be an adverse cumulative impact on the environment if these permits were issued.” Record at 128.
On September 4, 1985, AJA filed suit in district court, seeking to set aside the permit denial. AJA asserted that the Corps’ action was arbitrary and thus not in accordance with law, and that the Corps unlawfully delayed evaluation of the permit application. Nowhere in the complaint did AJA assert that the Corps should have held a hearing as a part of its decisionmaking process. .
The Corps on January 13, 1986, filed a motion for summary judgment and a motion for a protective order to prevent the deposition of Colonel Myers. In opposition to the motion for summary judgment, AJA argued for the first time that procedural due process required an adjudicatory hearing during the Corps’ review of AJA’s application. AJA also argued, as asserted in the complaint, that the Corps had erred in taking an unreasonable amount of time to process the application and in considering the environmental impact of AJA’s application together with the 15 other similar proposals before the Corps. In a memorandum opinion dated June 12, 1986, Judge Weiner denied the Corps’ motions and remanded the case for an administrative hearing. The district court held that “plaintiff is entitled to appear at an informal oral hearing before a proper agency officer so that plaintiff can hear and respond to reasons why its individual permit application (84R-4588) was denied by the Army Corps of Engineers.” Judge Weiner stressed, “We do not hold, however, that due process requires an informal oral hearing in every application before defendant.” Mem.Op. at 5.
II.
Before considering the merits of this appeal, we must determine whether the court has appellate jurisdiction under 28 U.S.C. § 1291 to review the remand order presented here. “[RJemands to administrative agencies are not ordinarily appealable under section 1291.” United Steelworkers of America, Local 1913 v. Union Railroad Co., 648 F.2d 905, 909 (3d Cir.1981). Nevertheless, Union Railroad and Horizons International, Inc. v. Baldridge, 811 F.2d 154 (3d Cir.1987), recognize that when a district court finally resolves an important legal issue in reviewing an administrative agency action and denial of appellate review before remand to the agency would foreclose appellate review as a practical matter, the remand order is immediately appealable.
The present appeal challenges a remand order based on the district court’s analysis of due process requirements in a dredge- and-fill permit proceeding. The district court has resolved an issue of wide-reaching impact, even though the lower court carefully confined its decision to the facts of this case. The decision opens up for all applicants the argument, raised after permit denial, that due process requires a hearing in their particular cases. This important decision cannot receive later appellate review. If on remand the Corps grants AJA a permit, the case will never return to the courts. If the Corps again denies the permit after a hearing, judicial review sought by AJA will not allow consideration of the right-to-hearing issue, because the issue will have become moot. We conclude that the appeal presents a final order within the meaning of 28 U.S.C. § 1291 as it has been interpreted in this circuit.
III.
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965).” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (emphasis added). In this case, AJA took advantage of its opportunity to advance arguments in support of its permit application through written submissions to the Corps. The issue now, after the permit has been denied, is whether due process requires remand for an informal oral hearing even though AJA did not take advantage of its opportunity during the comment period to request an oral hearing. Due process does not so require; a permit applicant cannot lay blame on an agency for the applicant’s own failure to pursue every available channel of advocacy.
The regulation governing hearings to consider dredge-and-fill permit applications states:
Unless the public notice specifies that a public hearing will be held, [which in this case the notice did not,] any person may request, in writing, within the comment period specified in the public notice on a Department of the Army permit application or on a Federal project, that a public hearing be held to consider the material matters in issue in the permit application or Federal project. Upon receipt of any such request, stating with particularity the reasons for holding a public hearing, the district engineer may expeditiously attempt to resolve the issues informally. Otherwise, he shall promptly set a time and place for the public hearing and give due notice thereof____ Requests for a public hearing under this paragraph shall be granted, unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing. The district engineer will make such a determination in writing, and communicate his reasons therefor to all requesting parties.
33 C.F.R. § 327.4(b). AJA did not submit a request for a hearing during the comment period. Indeed, throughout the period pri- or to the Corps’ decision to deny the permit, AJA pressured the Corps for a speedy resolution of its application. Only after it had filed the complaint in this case did AJA first advance the claim that it needed a face-to-face meeting with Corps officials.
It has long been routine for administrative agencies to require a request for a hearing before holding a hearing on an application under consideration by the agency. Such a request requirement has survived numerous due process challenges. For example, in Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926), the Supreme Court rejected Goldsmith’s argument, after he was denied admission to practice before the Board, that due process “entitled petitioner to be heard before an opportunity to make a living in his profession was taken away from him.” 270 U.S. at 118, 46 S.Ct. at 216 (summary of Goldsmith’s argument before the Court). Goldsmith had not demanded from the Board the right to be heard on the charges against him that eventually resulted in denial of admission to practice. The Court concluded that “[ujntil he had sought a hearing from the Board, and been denied it, he could not appeal to the courts for any remedy and certainly not for mandamus to compel enrollment.” 270 U.S. at 123, 46 S.Ct. at 217.
Moreover, the Supreme Court has upheld agencies’ requirements, prior to providing a hearing, that an applicant not only request a hearing, but also present reasons why a hearing would be useful. See, e.g., Costle v. Pacific Legal Foundation, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980); Weinberger v. Hyson, Westcott & Dunning, 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973). In Hyson, Westcott & Dunning, the Court held that the FDA’s decision, articulated in its regulations, “that it will not provide a formal hearing where it is apparent at the threshold that the applicant has not tendered any evidence which on its face meets the statutory standards [for a new drug application]” did not violate due process protections. 412 U.S. at 620-21, 93 S.Ct. at 2478-79. (emphasis in original)
AJA acknowledges that 33 C.F.R. § 327 governs the processing of its permit application. See Appellee’s Brief at 4. Despite obfuscation in the brief submitted to this court, AJA’s counsel at oral argument admitted that no hearing had been requested, either in writing or orally, prior to the Corps’ decision to deny the dredge-and-fill permit. AJA offers no extenuating circumstance as a possible basis for ignoring the regulation’s requirement of a request before a hearing will be held. AJA can cite no case granting a permit applicant an administrative hearing on due process grounds where the applicant gave no indication it desired or needed a hearing during the time when the agency was considering its application. As numerous prior decisions have held, we hold that the administrative agency here may, in keeping with due process, condition a hearing upon a request for one. The Corps gave AJA several meaningful opportunities to be heard. The applicant chose to submit its application for decision based upon a detailed “paper hearing” and cannot now complain that this process was inadequate.
IV.
For reasons of institutional integrity, we will, in addition to instructing the district court to vacate its remand order, return the case to the lower court for consideration of AJA’s other assertions of error by the Corps. We note, however, that the papers submitted to this court indicate that AJA’s remaining arguments may also be merit-less, and resolution of the case on a motion for summary judgment may be appropriate.
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VAN GRAAFEILAND, Circuit Judge:
The issue on this appeal is whether the Federal Trade Commission is required by § 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C), to file an Environmental Impact Statement (EIS) at the outset of an adjudicatory proceeding brought pursuant to § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, because of the possibility that the proceeding might some day culminate in an order “significantly affecting the quality of the human environment.”
On July 18,1973, the Commission issued a complaint charging appellees and four other major oil companies with violating § 5. The complaint charged in substance that the respondents named therein combined to monopolize the refining of crude oil, restrain trade and maintain a non-competitive market structure. Rule 3.11(b)(3) of the Commission’s Rules of Practice, 16 C.F.R. § 3.11(b)(3) provides that the complaint shall also contain “[w]here practical, a form of order which the Commission has reason to believe should issue if the facts are found to be as alleged . . . .” In this case, the complaint provided that “the Commission may order such relief as is necessary or appropriate in order to correct or remedy the effects of [respondents’] anti-competitive practices.”
On February 22, 1974, complaint counsel, upon the direction of the presiding administrative law judge, indicated that on the basis of current information they were prepared to urge certain remedies. These included divestiture of 40 to 60 percent of respondents’ refinery capacity, divestiture of certain pipe lines, a ban against future refinery acquisitions and limitations on joint ventures and processing arrangements. Counsel also stated, however, that the appropriateness of the remedies would be determined “on the basis of a full litigative hearing before the administrative law judge” and that “on the basis of such hearings, the proposed relief may be modified.” Moreover, the Commission itself has never approved or endorsed the suggested proposals for relief.
Section 102(2)(C) provides in part that all agencies of the federal government shall:
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
On June 17, 1974, respondents moved before the administrative law judge for an order requiring complaint counsel to file such an EIS. This motion was denied because Rule 1.82(d) of the Commission’s Rules of Practice, 16 C.F.R. § 1.82(d), specifically provides that § 102(2)(C) does not apply to any adjudicatory proceeding commenced by the Commission. Administrative relief by appeal and extraordinary review was denied respondents, and they then turned to the District Court.
On June 6, 1975, appellees commenced this action in the Southern District of New York seeking a declaration that Rule 1.82(d) is invalid and an order that the Commission be required to file an EIS. Both sides moved for summary judgment. On March 2, 1976, the District Court granted plaintiffs’ motion, holding Rule 1.82(d) to be null and void and directing the FTC to prepare a draft EIS. By subsequent order, the District Court directed the FTC to prepare and distribute the draft statement by September 12, 1977. The Commission’s appeal brings both orders before us for review.
Discussion of the need for an EIS ought logically to proceed in two stages, the first labeled “If” and the second, “When”. Following this pattern, the Commission argues first that NEPA does not require the preparation of an EIS in a § 5 adjudicatory proceeding and that the District Court erred in invalidating Rule 1.82(d) which so provides. Falling back to the second position, the Commission contends that, if an EIS must be prepared, the proper time to do so is when the proceeding reaches the remedial stage. Because we are convinced of the merits of the Commission’s second argument and it is completely dispositive of appellees’ claim for relief, we move directly to that contention.
Although the § 5 proceeding was commenced in 1973, it is still in the preliminary discovery stages. It is reasonable to anticipate that a substantial additional period will elapse before hearings are concluded and the hearing examiner makes the initial decision contemplated by Rule 3.51(b), 16 C.F.R. § 3.51(b). This decision may or may not order affirmative remedial relief. See, e. g., Litton Industries, 85 F.T.C. 333 (1974). Moreover, if relief is ordered by the Commission, it need not mirror that which was proposed in the original complaint. See, e. g., FTC v. National Lead Co., 352 U.S. 419, 427-28, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957); National Dynamics Corp. v. FTC, 492 F.2d 1333, 1336 n.2 (2d Cir.), cert. denied, 419 U.S. 993, 95 S.Ct. 303, 42 L.Ed.2d 265 (1974). In view of the speculative nature of what lies ahead, this is not the time for filing an EIS.
In Aberdeen & Rockfish Railroad v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 320, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975), and again in Kleppe v. Sierra Club, 427 U.S. 390, 401 n.12, 406, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Supreme Court made it clear that an agency must prepare an EIS at the time it makes a recommendation or report on a specific proposal for federal action. It need not be prepared “during the germination process of a potential proposal.” Kleppe, supra, at 406, 96 S.Ct. at 2729. Federal action which requires an EIS under NEPA is action “significantly affecting the quality of the human environment.” Such action does not take place at the commencement of a § 5 adjudicatory proceeding but occurs, if at all, when the final order is issued by the Commission. This is the “critical agency decision” to which this Court referred in Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 92 (2d Cir. 1975). Prior to that time, there will have been no “irreversible and irretrievable commitments of resources” to action affecting the environment. See NEPA § 102(2)(C)(v); Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 328 (9th Cir. 1975); Friends of the Earth v. Coleman, 513 F.2d 295, 299 (9th Cir. 1975); Scientists’ Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1094 (1973).
Preparation of an EIS is not a project lightly to be undertaken. See, e. g., Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, 92-94 (2d Cir. 1975). The volume of litigation involving the adequacy of these statements attests clearly to this fact. See, e. g., County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir. 1977); Chelsea Neighborhood Association v. United States Postal Service, 516 F.2d 378 (2d Cir. 1975). NEPA does not intend that the FTC may be indefinitely delayed in undertaking its statutory duties by controversy over an EIS concerning events which may never occur.
In Gifford-Hill & Co. v. FTC, 173 U.S.App.D.C. 135, 523 F.2d 730 (1975), the District of Columbia Circuit arrived at the same result we now reach but by a different route. The court there held that the plaintiff had no standing to sue because its alleged injury arising out of the FTC proceeding did not affect an interest within the zone of interests protected by NEPA and because the FTC’s decision to prosecute was not a final agency action reviewable under the Administrative Procedure Act. The court also held that judicial review of the FTC’s decision could not be secured by interlocutory appeal, even though sought by an independent suit in the District Court. While Gifford-Hill may not be in complete accord with this Court’s holdings on standing and reviewability, see, e. g., Rochester v. United States Postal Service, 541 F.2d 967, 972-73 (2d Cir. 1976); Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission, supra, 2 Cir., 539 F.2d 824 at 836-38, there is no conflict concerning the end result. We agree with the District of Columbia Circuit that this is not the time for suit.
In making this determination, we find it unnecessary to adjudicate the validity of Rule 1.82(d) in its entirety. Rule 1.82(d) provides in part that § 102(2)(C) of NEPA does not apply to “any adjudicatory proceedings commenced by the Commission”, and we are concerned here with the commencement of proceedings only. Following the cardinal rule of construction which “is to save and not to destroy”, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893 (1937); Northern Natural Gas Co. v. O'Malley, 277 F.2d 128, 134 (8th Cir. 1960), we find no irreconcilable conflict between this portion of the Rule, as applied to the facts of this case, and § 102(2)(C) of NEPA. We leave to another day the determination as to whether an EIS must precede the final order herein, the likelihood and contents of which are now but matters of speculation. See Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112 (1962); Eccles v. Peoples Bank, 333 U.S. 426, 432, 68 S.Ct. 641, 92 L.Ed. 784 (1948). If this determination is made in anticipation of a final order, the proceeding will have “reached sufficient maturity to assure that judicial intervention will not hazard unnecessary disruption.” Kleppe v. Sierra Club, supra, 427 U.S. at 406 n.15, 96 S.Ct. at 2729.
The orders appealed from are reversed. The case is remanded to the District Court with instructions to dismiss.
. Rule 1.82(d) reads in its entirety as follows: Nothing in this procedure shall be construed as stating or implying that section 102(2)(C) of NEPA applies to: any investigation made by the Commission for law enforcement purposes; any process or order issued by the Commission in connection with any type of investigation; any agreement of voluntary compliance or consent decree entered into by the Commission; or any adjudicatory proceedings commenced by the Commission.
. In Gifford-Hill & Co. v. FTC, supra, 523 F.2d at 733, the court said:
Gifford-Hill’s environmental claim is based on the possible result of a divestiture order which may never be entered, either because the challenged acquisition is found lawful or because some other remedy is deemed more appropriate. Moreover, during the adjudicatory proceeding both Gifford-Hill and the staff of the FTC can present evidence about environmental factors. That evidence can be considered as it relates to shaping a remedy, if the acquisition violates the antitrust laws, and the administrafive law judge and the FTC can determine whether an environmental impact statement is required before a final order is entered. In view of these opportunities for the FTC to comply with NEPA’s requirements during the adjudicatory proceeding and of the ability of Gifford-Hill to challenge any failure to do so in its appeal from the Commission’s final order, allowing this action to be maintained would serve no purpose other than the company’s apparent desire for the delay. (Footnotes omitted.)
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TROTT, Circuit Judge:
The United States appeals the district court’s dismissal of an indictment charging Jamie John Hagberg (“Hagberg”) with “knowingly disposing] of domestic septage on a public contact site” in violation of 33 U.S.C. §§ 1345(e) and 1319(c)(2). The district court dismissed the indictment based on its conclusion that the substance Hag-berg allegedly dumped was not “sewage sludge,” as defined by 40 C.F.R. Part 503. The United States argues that the district court misapplied the regulatory definitions relevant to the actions charged in the indictment, and thus erred in dismissing the indictment. We have jurisdiction pursuant to 18 U.S.C. § 3731 and REVERSE and REMAND the case to the district court for further proceedings consistent with this Opinion.
BACKGROUND
On September 12, 1997, Hagberg pumped sewage material from the septic tank of the Cozy Corner Bar in Lavina, Montana, into his H & H Septic and Drain Company pump truck. Later that evening, Hagberg allegedly discharged the sewage along a 1.6 mile stretch of road. Hagberg was subsequently indicted for “knowingly disposing] of domestic septage on a public contact site ... in violation of 33 U.S.C. § 1345(e) and 1319(c)(2).” Subsection 1345(e) makes it “unlawful for any person to dispose of sludge from a publicly owned treatment works or any other treatment works treating domestic sewage for any use for which regulations have been established pursuant to subsection (d) of this section, except in accordance with such regulations.” Clean Water Act of 1977 § 405(e), 33 U.S.C. § 1345(e) (Supp. 1999). Subsection 1319(c)(2) states that “[a]ny person who ... knowingly violates section ... 1345 of this title ... shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both.” 33 U.S.C. § 1319(c)(2) (Supp.1999).
In his pre-trial motion to dismiss the indictment, Hagberg argued that the Cozy Corner’s septic tank was not a “publicly owned treatment works” or “any other treatment works treating domestic sewage,” as required for criminal liability under subsection 1345(e). The district court dismissed the indictment after concluding that the material pumped from the Cozy Corner’s septic tank was not “sewage sludge” under the statutory and regulatory framework at issue. The court reached this conclusion for three separate reasons.
First, the district court reasoned that the dumped substance was not generated during any kind of “treatment” as envisioned by the regulations promulgated pursuant to subsection 1345(d). Second, the court concluded that the septic tank at the Cozy Corner Bar was not a “treatment works” as contemplated by the regulations. Finally, the court determined that “Part 503 of the Code of Federal Regulations cannot reasonably be construed to govern the internal processes of domestic septic tanks.”
The United States appeals the district court’s dismissal of the indictment, arguing that the district court misread and misinterpreted the statutory and regulatory framework governing Hagberg’s actions. This is a case of first impression.
DISCUSSION
The district court’s decision to dismiss the indictment based on its interpretation of a federal statute is . reviewed de novo. See United States v. Fitzgerald, 147 F.3d 1101, 1102 (9th Cir.1998). The construction or interpretation of a statute is reviewed de novo, United States v. Frega, 179 F.3d 793, 802 n. 6 (9th Cir.1999), as is the district court’s interpretation of the federal regulations at issue. See United States v. Ani, 138 F.3d 390, 391 (9th Cir. 1998). In this appeal, we review the district court’s legal conclusion that the material Hagberg allegedly discharged was not “sewage sludge.”
In order to understand the charge with which Hagberg is faced, one must analyze the section 1345 framework as a whole. Section 1345 of Title 33 of the United States Code is titled “Disposal or use of sewage sludge.” 33 U.S.C. § 1345 (Supp. 1999). The substantive provisions of that section establish two separate, but related, means by which the Environmental Protection Agency (“EPA”) oversees the disposal or use of sewage sludge. First, under subsections 1345(a), (b), and (f), Congress set up a permit system for the EPA to administer. A disposal permit issued by the EPA is required “where the disposal of sewage sludge resulting from the operation of a treatment works as defined in [33 U.S.C. § 1292] ... would result in any pollutant from such sewage sludge entering the navigable waters.... ” Id. § 1345(a) (1986). Second, under subsection 1345(d), Congress requires the EPA to promulgate “regulations providing guidelines for the disposal of sludge and the utilization of sludge for various purposes.” Id. § 1345(d) (Supp.1999). The EPA has promulgated such sludge regulations in 40 C.F.R. Part 503 (“Standards for the Use or Disposal of Sewage Sludge”). Part 503 “establishes standards, which consist of general requirements, pollutant limits, management practices, and operational standards, for the final use or disposal of sewage sludge generated during the treatment of domestic sewage in a treatment works.” 40 C.F.R. § 503.1(a)(1) (1999).
Permits issued under the subsections 1345(a), (b), and (f) framework must incorporate the regulatory standards established pursuant to subsection 1345(d). See 33 U.S.C. § 1345(f)(1) (Supp.1999). However, the sludge regulatory standards may be enforced regardless of whether a permit has been or should have been issued. The EPA made this point clear when it issued 40 C.F.R. § 503.3, pursuant to its subsection 1345(d) regulatory power. In section 503.3, the EPA established that requirements set forth in Part 503 could be “implemented through a permit” or directly enforced even in the absence of a permit. 40 C.F.R. § 503.3 (1999).
The “direct enforcement” provision, 40 C.F.R. § 503.3(b), reads as follows: “Direct enforceability. No person shall use or dispose of sewage sludge through any practice for which requirements are established in this part except in accordance with such requirements.” 40 C.F.R. § 503.3(b) (1999). Furthermore, even where a “treatment works treating domestic sewage” is not required to acquire a permit under subsection 1345(f)(1), subsection 1345(f)(2) gives the EPA Administrator the additional power to “issue a permit to such treatment works solely to impose requirements for the use and disposal of sludge that implement the regulations established pursuant to subsection (d) of this section.” 33 U.S.C. § 1345(f)(2) (Supp. 1999). Thus, all efforts at using or disposing of sewage sludge would have to meet the Part 503 standards, whether or not a permit was required under subsection 1345(a).
What is most important to understand from this dual enforcement mechanism is that some terms found in the subsection 1345(d) regulations are defined differently when used in the context of regulations specific to the permit scheme. Hagberg argues that the term “treatment works treating domestic sewage,” as it is found in subsection 1345(e), should be defined by reference to 40 C.F.R. § 122.2. However, section 122.2 contains the permit scheme’s regulatory definitions, and those definitions apply only to 40 C.F.R. Parts 122-124. See id. § 122.2 (1999) (“The following definitions apply to parts 122, 123, and 124.”). The general definitions for subsection 1345(d)’s Part 503 regulations are located in 40 C.F.R. § 503.9. See id. § 503.9 (1999). When we focus upon this dichotomy in definitions, Hagberg’s argument in support of dismissing the indictment fails.
The indictment does' not charge Hag-berg with violating a permit, nor does the government even allege that Hagberg was obligated to acquire a permit for his sewage removal activities. Thus, only the Part 503 regulations and its “direct enforcement” are implicated by Hagberg’s conduct. Consequently, applicable terms are to be defined by reference to 40 C.F.R. § 503.9.
Hagberg is charged with violation of 33 U.S.C. § 1345(e), which requires that any “dispostal] of [sewage] sludge from a publicly owned treatment works or any other treatment works treating domestic sewage” must be in accordance with the regulations promulgated pursuant to subsection 1345(d) — the Part 503 regulations. 33 U.S.C. § 1345(e) (Supp.1999). Although the issue has not been litigated and thus is not within the scope of this appeal, neither party disputes that if Hagberg’s conduct can be characterized as disposing of sewage sludge from a treatment works treating domestic sewage, his alleged dumping of the sewage material would appear to be in contravention of the Part 503 regulations.
We conclude that it is clear from the plain language of the Part 503 definitions of “sewage sludge” and “domestic septage” that Hagberg’s alleged discharge of the sewage material from the Cozy Corner Bar is covered by subsection 1345(e). When we read 40 C.F.R. § 503.9(w), we find the answer right under our nose. Section 503.9(w) reads, “[s]ewage sludge is solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes, but is not limited to, domestic septage; scum or solids removed in primary, secondary, or advanced wastewater treatment processes; and a material derived from sewage sludge.” 40 C.F.R. § 503.9(w) (1999). In turn, “[djomestic septage is either liquid or solid material removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage.” Id. § 503.9(f) (1999). The parties do not dispute that the Cozy Corner Bar’s septic tank received only “domestic sewage,” which is defined as “waste and wastewater from humans or household operations that is discharged to or otherwise enters a treatment works.” Id. § 503.9(g) (1999).
These regulatory definitions combine unequivocally to demonstrate that Hag-berg’s conduct is covered by subsection 1345(e). If “domestic septage” includes material removed from a septic tank receiving only domestic sewage, see id. § 503.9(f), and “domestic septage” is also a type of “sewage sludge,” or “residue generated during the treatment of domestic sewage in a treatment works,” id. § 503.9(w), then material removed from a septic tank receiving only domestic sewage must be sewage sludge “generated during the treatment of domestic sewage in a treatment works.” In other words — specifically, those of subsection 1345(e) — material removed from a septic tank receiving only domestic sewage is necessarily “sludge from a ... treatment works treating domestic sewage.” 33 U.S.C. § 1345(e). The district court erred in reasoning that the Cozy Corner septic tank is not a “treatment works” and is not engaged in “treatment.” Similarly, the court erred in concluding that the gunk at issue in this case was not “sewage sludge.”
Under these circumstances, once the government has shown that the material Hagberg allegedly discharged came from a septic tank receiving only domestic sewage, it has automatically shown that the material came from a “treatment works treating domestic sewage.” The definitions of “treatment” and “treatment works” at sections 503.9(z) and 503.9(aa), were they taken by themselves, might leave room for argument as to whether “treatment” of the kind specified in section 503.9(z) occurs inside a domestic septic tank. But taken in context with the other definitions, it is clear that a domestic septic tank is necessarily a “treatment works” for purposes of the “direct enforceability” regulation at section 503.3(b). This is so because the definition of “domestic sep-tage” at section 503.9(f) says that it is material removed from “a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similiar treatment works. ...” 40 C.F.R. § 503.9(f) (emphasis added). If a portable toilet is a “treatment works,” then a fortiori so is a septic tank.
Hagberg is correct that the term “treatment works treating domestic sewage,” as defined in 40 C.F.R. § 122.2, excludes “septic tanks or similar devices.” Id. § 122.2. However, that definition relates only to the EPA’s permit program under 33 U.S.C. § 1345(a), the “National Pollutant Discharge Elimination System,” and is explicitly limited in its application to 40 C.F.R. Parts 122-124. See id. (“The following definitions apply to parts 122, 123, and 124.”). In other words, it has nothing to do with this case.
The section 122.2 definition obviously is clearer than the definition we- have deduced from section 503.9. Section 122.2 defines the exact phrase — “treatment works treating domestic sewage” — -found in subsection 1345(e), whereas through section 503.9, we have had to piece together a meaning. Yet, notwithstanding the EPA’s awkward scheme of definitions, the explicit limitation of the section 122.2 definition makes it inapplicable to this case. Furthermore, the fact that we had to read several section 503.9 definitions in conjunction with each other to reach the meaning of “[sewage] sludge from a ... treatment works treating domestic sewage” does not detract from the conclusion that the regulatory definition is plain on its face.
We note that our decision comports with the EPA’s own reading of the requirements underlying section 1345. The EPA’s decision to exclude septic tanks from the definition of “treatment works treating domestic sewage” under the permit program implements its belief that Congress did not intend that all private owners of septic tanks would be required to acquire a permit to operate the septic tanks. In adopting the Part 122 permit regulations, the EPA commented that it had
excluded septic tanks and portable toilets from the permitting requirement because Congress indicated its intent that the section 405 technical standards apply only to septage treatment and processing, not generation. S.Rep. No. 99-50 on S. 1128 at 47 (1985). It follows that if the standards apply only to treatment, and not generation, it would serve no useful purpose to require permits for the 22 million homeowners with septic tanks or for portable toilets.
National Pollutant Discharge Elimination System Sewage Sludge Permit Regulations; State Sludge Management Program Requirements, 54 Fed.Reg. 18,716, 18,718 (1989). On the other hand, the decision to include septic tanks within the definition under the subsection 1345(d) regulations means that users and disposers of materials from privately-owned septic tanks— such as Hagberg — would still be obligated to comply with the subsection 1345(d) regulations regarding use and disposal. See Standards for the Use or Disposal of Sewage Sludge, 58 Fed.Reg. 9248, 9362 (1993) (“Domestic septage is considered sewage sludge under today’s rule; therefore, users and disposers of domestic septage must comply with the standards applicable to their use or disposal practices.”).
While the legislative history underlying Parts 122 and 503 demonstrates that our decision is consistent with the EPA’s own reading of section 1345, we cannot completely ignore one logical inconsistency in the EPA’s reasoning. The EPA states that septic tank owners need not acquire permits because “Congress ... inten[ded] that the ... technical standards apply only to septage treatment and processing, not generation.” 54 Fed.Reg. at 18,718. As discussed earlier, however, because the Part 503 definitions indicate that a septic tank produces “domestic septage,” and domestic septage is a type of “sewage sludge,” septic tanks necessarily are engaged in septage treatment for purposes of that Part.
How septic tanks can be said to “treat” under one set of provisions, but not another, is unclear. Nevertheless, we can avoid this seeming inconsistency in the EPA’s reasoning process through reliance on one of the basic tenets of statutory construction. Where a statute or regulation is plain on its face, such as the section 503.9 definitions, statements in legislative history do not sway our decision. See Reno v. National Transp. Safety Bd., 45 F.3d 1375, 1379 (9th Cir.1995) (“[T]he plain meaning of language in a regulation governs unless that meaning would lead to absurd results.”) (citing Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir.1987)).
We hold that disposers of sewage pumped from septic tanks receiving only domestic sewage are “dispos[ing] of [sewage] sludge from a ... treatment works treating domestic sewage,” within the meaning of 33 U.S.C. § 1345(e) and the regulations promulgated pursuant to 33 U.S.C. § 1345(d). Thus, Hagberg’s alleged actions are implicated by subsection 1345(e)’s prohibition on the disposal of sludge except in accordance with the subsection 1345(d) regulations. The district court improperly dismissed the indictment.
REVERSED and REMANDED for further proceedings consistent with this Opinion.
. Section 1345 appears to treat the terms "sewage sludge” and "sludge” as equivalents, using both interchangeably, without any apparent consequential difference in meaning. Where subsection 1345(e) uses the term “sludge,” we interpret it to mean "sewage sludge.” This construction of the section is logical in that section 1345 is titled "Disposal or use of sewage sludge,” subsection 1345(e) is titled "Manner of sludge disposal,” and neither the parties nor the context of the section argue for a contrary construction.
. Whether or not Hagberg "knowingly” dumped the sewage, as charged by the indictment, is an entirely different matter.
. When adopting Part 122, the EPA stated that it was excluding septic tanks from the definition of "treatment works treating domestic sewage” for purposes of the permit regulations despite its belief that septic tanks "arguably could be considered treatment works.” 54 Fed.Reg. at 18,718.
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HENRY WOODS, District Judge.
The Missouri Coalition for the Environment, the individual plaintiffs and the organizational plaintiffs, collectively referred to herein as the “Coalition,” appeal from a final judgment of the district court upholding defendant United States Army Corps of Engineers’ decision not to. revoke, suspend or modify a permit issued to the non-government defendants under Section 404 of the Clean Water Act of 1977 (Federal Water Pollution Control Act Amendments of 1972), 33 U.S.C. § 1344, which authorized the discharge of dredged or fill material into a wetland area. The district court rejected the Coalition’s challenges brought under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and under various other environmental statutes and regulations, finding that the decision of the Corps was not arbitrary, capricious, unreasonable or otherwise not in accordance with law. We affirm.
BACKGROUND
Because the district court’s exhaustive findings of fact and conclusions of law are reported in Missouri Coalition for the Environment, et al. v. Corps of Engineers of the United States Army, et al., 678 F.Supp. 790 (E.D.Mo.1988), the relevant facts need not be restated in great detail here. In 1983 defendants Riverport Associates, a limited partnership, Riverport, Inc., its general partner, and Sverdrup Corporation, a developer, proposed to construct a commercial-retail-industrial park of a nonspecific nature to be known as “River-port.” The Riverport site is located within a 22,000 acre floodplain north of the City of St. Louis, Missouri near the junction of the Missouri and Mississippi Rivers. The floodplain, commonly referred to as the Missouri River Bottoms, presently contains various agricultural and wetland areas. Originally the Riverport plans included construction of a 4,100-foot levee to protect the development from a 500-year flood — an 800-foot section of which was to be built across a wetland area. And since construction of this 800-foot section involved the discharge of fill material into a wetland, Riverport Associates was required to apply to the Corps for a Section 404 permit. With the exception of this permit requirement, there was no other federal involvement with the project.
In considering the permit application, the Corps initially conducted an evaluation and environmental assessment (EA) of the proposed Riverport development. The EA concluded with a finding that construction of the levee could have no significant effect on the quality of the human environment. Based on this finding, the Corps’ District Engineer determined' that the permit could properly be issued without first preparing an Environmental Impact Statement (EIS). The Section 404 permit was thus issued by the Corps on May 16, 1985.-
In November, 1985 defendant St. Louis County, wherein Riverport is located, announced its intention to purchase 100 acres within Riverport. The purpose of this acquisition was to allow St. Louis County to substitute a domed football stadium for certain of the originally planned retail, commercial and industrial facilities. In accord with its intention, St. Louis County asked the Corps to reevaluate the issuance of its Section 404 permit to determine whether the substitution would require the permit to be revoked, suspended or modified under the Corps’ regulations. Acting on this request the Corps solicited evidence and opinions from the parties, private organizations, individual experts, local government officials, state agencies and federal agencies as to what effects the proposed stadium would have on the environment. The reevaluation process consumed a total of sixteen months and generated an administrative record weighing 66 pounds. There was testimony that this was the most comprehensive reevaluation undertaken by the Kansas City District in at least the last ten years.
On June 22, 1987 a “Memorandum For Record” (MFR) was issued to record the results of the District Engineer’s reevaluation. As stated in the MFR, if the District Engineer .determined that there was a significant increase in the scope of the permitted activity, the changed circumstances and conditions would require that a new permit application be processed. But if there was no significant increase, then the reevaluation would be limited to the question of whether modification, revocation or suspension of the permit was required given considerations of the public interest. The MFR indicates that the District Engineer found, first, that the addition of a stadium to Riverport did not significantly increase the scope of the permitted activity, which was filling of wetlands; and, second, that the potential impacts of the revised project were substantially similar to those evaluated prior to issuance of the original permit. Based on these findings, he then concluded that the changed circumstances did not require that the permit be modified, suspended or revoked. It is this decision which permitted St. Louis County to proceed with its plan to construct a domed stadium.
In response the Coalition filed this action in the district court on July 30, 1987 seeking declaratory and injunctive relief which would, if granted, prevent construction of the proposed stadium. Its primary allegation was that the Corps’ reevaluation violated NEPA’s requirement that an EIS be prepared for major federal actions significantly affecting the environment. But also alleged were violations of the Clean Water Act (CWA), 33 U.S.C. §§ 1344 and 1365; the Fish and Wildlife Coordination Act of 1934 (FWCA), 16 U.S.C. § 662; the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.; the Clean Air Act (CAA), 42 U.S.C. § 7506; and 'regulations promulgated pursuant to each act. In addition, review was sought under the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq.
The district court conducted a five-day bench trial, at the conclusion of which it held in favor of the defendants on all claims. Specifically, the district court ruled that the Coalition had failed to meet its threshold burden of proof under NEPA, in that it did not raise a substantial environmental issue based on facts which were omitted from the record of the administrative proceedings. The district court also found that the Corps’ decision not to revoke, suspend or modify its permit was not reviewable under the APA but, even if it was, the decision was not arbitrary, capricious or otherwise not in accordance with law. The remaining claims were all found to be without merit and are not at issue here.
On this appeal the Coalition advances several bases for reversal. At the outset, it maintains that this case is moot and that the decisions below should be vacated because, subsequent to the trial, the St. Louis football franchise moved to Phoenix, Arizona. In the alternative, the Coalition argues that the MFR was an inadequate deci-sional document upon which the Corps’ determination could be upheld; that the district court improperly excluded certain in-tra-agency communications from its review of the administrative record; that the district court applied the wrong standard of review under NEPA and that the district court erroneously concluded that the Corps had complied with NEPA’s procedural requirements. The Coalition also argues that the Section 404 permit, by its own terms, does not permit stadium construction, that it is in violation of a local zoning ordinance and that it is in violation of Missouri’s implementation plan for the enforcement of federal air pollution standards.
I. MOOTNESS
The Coalition urges us to hold that issues concerning the proposed addition of a domed football stadium to Riverport are moot because the St. Louis Football Cardinals have, since the trial, moved to Phoenix, Arizona. They state that the Corps had relied on representations made by the defendants to the effect that Mr. Bidwill, owner of the Cardinals, was willing to execute a lease for the proposed Riverport Stadium and that private financing was already in place. But, the Coalition argues, because the Cardinals have left St. Louis, the Corps’ reevaluation no longer has an impact on anybody who is presently planning, or is in a position to build a Riverport stadium. They reason that, since the likelihood of building a stadium is contingent upon the remote possibilities of attracting investors and a new franchise, and because construction is, at best, years away when relevant circumstances may have changed, the case is moot and the decisions below should be vacated.
We disagree with the Coalition’s position and hold that this case “fits well within the classic exception to the mootness doctrine for disputes which are ‘capable of repetition, yet evading review.’ ” Thomas v. Bennett, 856 F.2d 1165, 1168 (8th Cir.1988) (citations omitted). In the absence of a class action, the capable of repetition exception applies if “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982); Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975). We are satisfied that both of these conditions have been met.
St. Louis County has purchased, and still owns the proposed stadium site. In addition, it represents to this court that it is actively pursuing stadium development for Riverport and is seeking a National Football League expansion franchise to locate there. These representations, standing alone, may not be sufficient to support a finding that there is a present, live controversy between the parties, but when considered in overall context it becomes clear that such a controversy does indeed presently exist. Cf. Cedar-Riverside Environmental Defense Fund v. Hills, 560 F.2d 377 (8th Cir.1977) (but for intervening municipal legislation, promoter’s express intent to seek financing and developer’s intent to proceed with construction would have been sufficient to present a live controversy).
There is more than a reasonable likelihood that the Coalition, or those having identical interests, will pose continuing legal challenges to prevent construction of the proposed stadium. The Coalition does not dispute that it, or those in privity with it, have already challenged the proposed stadium in three separate lawsuits, and that they have organized a “No Dome” committee in opposition to the proposed stadium. Furthermore, the Coalition admits that there is “concerted, unanimous opposition of the business and civic leaders of the St. Louis Community” to construction of a stadium anywhere but in downtown St. Louis.
If we were to hold this case moot now, the very real prospect of litigation would hang like a dark cloud over the negotiations between St. Louis County and potential NFL franchisees. The defendants note that the sixteen-month reevaluation and the lengthy district court proceedings have already contributed to the loss of the Cardinals Franchise. By using the threat of protracted litigation, calculated to have the maximum disruptive effect on negotiations, the Coalition would be able to accomplish indirectly what it has not been able to achieve directly in the proceedings below. And it would be able to do so time and again without judicial review because, according to the Coalition’s argument, each time it succeeded in scaring off a potential franchise the case would again become moot.
Moreover, the Corps’ reevaluation was concerned only with the potential environmental effects of a generic, domed stadium. The Corps’ decision that a domed stadium would have no impact on the environment materially different from the proposed industrial park did not depend on the Cardinals or any other specific team inhabiting that stadium. The Corps has ruled that its 1985 permit does not foreclose construction of a stadium; the defendants intend to build a stadium and the Coalition intends to oppose it. The Cardinals’ departure does not alter this set of circumstances, and it does not moot this case. There is, accordingly, a present, live controversy before us. E.g., Thomas v. Bennett, supra; Clark v. Brewer, 776 F.2d 226 (8th Cir.1985); In re Martin, 761 F.2d 472 (8th Cir.1985); Terry v. Penn Central Corp., 668 F.2d 188 (3rd Cir.1981).
II. NEPA
A. The Administrative Record
The Coalition argues that the administrative “record” on which we must base our review is the MFR issued by the District Engineer to record the results of his evaluation. And, because the MFR does not contain a “convincing statement of reasons why potential environmental effects are insignificant,” the Corps’ decision not to prepare an EIS must be found to be unreasonable. As a corollary to that argument, the coalition complains also that the district court erred in allowing testimony to “explain” the MFR because it was tantamount to post-hoc rationalization which defeats NEPA’s purpose of insuring informed, well-considered environmental decisions before the fact. These arguments are easily rejected.
Both of the Coalition’s arguments are premised upon the false assumption that our judicial review is limited to an examination of the six-page MFR. However, the question before us is not, as the Coalition urges, whether the MFR contains the requisite convincing reasons to stand on its own, but whether, under the appropriate standard of review, the determinative finding in the MFR is sustainable on the administrative record made. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). And that record includes the MFR, the EA and the full ten volumes of documents compiled during the Corps’ reevaluation process.
In attempting to sort out and wade through the voluminous administrative record, it was not an abuse of the district court’s discretion to allow testimony of an explanatory nature. Sierra Club v. U.S. Army Corps of Engineers, 771 F.2d 409, 413 (8th Cir.1985) (citations omitted). The district court did not attempt to try the administrative proceedings de novo, but properly confined its inquiry to the question of whether the Corps’ decision was reasonable, based upon the administrative record. See 678 F.Supp at 800 (The question is whether a reasonable person could reach the same result the Corps reached on the same evidence.) (emphasis added). Since the district court did not create a “new record” on which to base its findings, we find no error. Sierra Club, supra.
With respect to the state of the record, the Coalition argues that the district court erroneously denied its motion to compel the Corps to produce requested documents. The documents in question concern certain intra-agency recommendations and preliminary decisions made by agency personnel in connection with the Corps’ 1985 decision that an EIS need not be prepared. But because the propriety of the original permit was not before the district court, we find no abuse of discretion in denying the Coalition’s discovery motion.
The Coalition presented its challenge to the original permit in an earlier lawsuit referred to herein as Riverport I. See 678 F.Supp. at 796. In that case the Coalition’s claims regarding the domed stadium were dismissed without prejudice because the Corps had not yet completed its reevaluation. However, “all claims” against the original permit were dismissed with prejudice pursuant to a consent decree signed by the parties and approved by the court. As a result, the Coalition is barred by principles of res judicata from asserting claims related to issuance of the original River-port permit. See Brooks v. Barbour Energy Corp., 804 F.2d 1144 (10th Cir.1986) (settlement agreement approved by court with prejudice is res judicata to later lawsuit based on same occurrence). The documents the Coalition would have included in the record did not concern the question considered by the Corps on reevaluation— whether there would be a significant increase in the scope of the permitted activity —but rather concerned the wisdom of the Corps’ initial decision to issue a permit. It was well within the district court’s discretion to refuse to compel their production.
B. Standard of Review
NEPA requires preparation of an EIS only if the responsible federal agency determines in the first instance that a “major federal action” will “significantly affect the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Ringsred v. Duluth, 828 F.2d 1305, 1307 (8th Cir.1987); Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 204 (8th Cir.1986). The Corps presumed in this case that issuance of a Section 404 permit was a major federal action. 678 F.Supp. at 799. But it determined from its original evaluation and EA that granting the Section 404 permit for the originally proposed River-port project would not have a significant effect on the quality of the human environment. And, on reevaluation, the Corps concluded that the addition of a domed stadium to Riverport would not alter that determination since the addition would not have an environmental impact materially different from the originally proposed commercial-industrial-retail park. Accordingly, an EIS was never prepared and the Corps decided that the addition of a stadium did not require the original permit to be revoked, suspended or modified. The Coalition takes exception to these decisions and argues that NEPA required preparation of an EIS under the facts of this case.
The standard under which we review an agency’s decision that preparation of an EIS is not required by NEPA is well settled. The initial burden of proof is upon the challenging party to demonstrate that there were facts omitted from the administrative record which, if true, would show that the permitted project could have a substantial impact on the environment. Ringsred v. Duluth, supra at 1307; Olmstead Citizens for a Better Community, supra at 204; Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.1974) (en banc). If such facts are established, and they are of sufficient significance to warrant shifting the burden of proof, the agency must then demonstrate that its negative determination was reasonable under the circumstances. Id. The test is one of reasonableness—not whether the agency’s determination was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Minnesota Public Interest Research Group, supra at 1320.
NEPA is an essentially procedural act designed to insure that the responsible federal agencies make fully informed and well-considered environmental decisions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979). It does not require that agencies reach decisions that we, as judges, would have reached had we been members of the decision-making unit of the agency. Id. Rather, the court’s only role is to insure that the agency has considered the environmental consequences before taking action. Strycker’s Bay, supra 444 U.S. at 227, 100 S.Ct. at 499; Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976). Thus, if the challenging party is unable to meet its initial burden of proof— to demonstrate that the agency failed to consider facts which, if true, would show that the permitted project could have a substantial effect on the environment — we need not reach the question of whether the agency’s decision not to prepare an EIS was reasonable.
The record demonstrates that the Coalition failed to sustain its burden. The sheer volume of the administrative record in this case is evidence that the Corps gave environmental effects the type of consideration required under NEPA. Baltimore Gas & Electric Co. v. NRDC, Inc., 462 U.S. 87, 98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). But of more importance is what the record shows. The Corps considered twenty-eight different environmental and other impacts potentially associated with the proposed stadium. 678 F.Supp. at 801. This consideration took into account the views of the Coalition and its experts, private organizations, the Environmental Protection Agency, the Fish and Wildlife Service, the Emergency Management Agency, the National Park Service, the Missouri Department of National Resources, the Missouri Department of Commerce, the Missouri Highway Traffic Commission, the Missouri Attorney General’s Office and the officials of surrounding municipalities. In all, the Corps reviewed twenty-two depositions, thousands of documents and held what amounted to a “seven-month public hearing.” 678 F.Supp. at 796-97.
On the surface the Coalition appears to argue that the Corps did not fully consider traffic and safety impacts, air pollution, surface runoff, cumultive impacts of related developments, controversial effects, alternatives to the Riverport site and economic impacts. On closer examination, however, these arguments actually take issue with the “correctness” of the Corps conclusions, not with the procedural adequacy of the Corps’ consideration. See Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 207, n. 8 (8th Cir.1986) (the question is whether an agency “considered” environmental effects, not the “correctness” of the decision). The record is replete with evidence that each of these issues was before the Corps. As to most of the issues raised, there was testimony from not only the Coalition’s own experts but from neutral government agencies. In any event, the record does not support the assertion that the Corps failed to fully consider these impacts. Because the Coalition has failed to meet its threshold burden in this regard, we need not address the matter further.
III. LAWFULNESS OF STADIUM PROPOSAL
The last argument advanced by the Coalition on this appeal is that the stadium proposal is unlawful in three respects. First, the Coalition claims that the proposed stadium exceeds the activities authorized by the Section 404 permit which allows filling of wetlands incident to construction of an “industrial park.” We agree with the defendants’ contention that this argument is frivolous. The activity permitted by the Corps is not the construction of an industrial park or a stadium; it is the filling of wetlands necessary to construct an 800-foot section of the levee. The substitution of a stadium for some unspecified industrial facility does not change the scope of that activity, Moreover, the original EA contemplated that “entertainment facilities” would be a part of Riverport. Clearly, a football stadium is an entertainment facility.
Second, the Coalition argues that the proposed stadium is prohibited by a local zoning ordinance. But the Coalition does not allege that deviation from the local ordinance will necessarily affect the “quality of the human environment.” Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 207 (8th Cir.1986). “In other words, to the degree that a given zoning ordinance reflects social and economic, rather than ecological, considerations, uses contrary to the ordinance do not implicate the concerns underlying NEPA.” Id. Because the Coalition does not allege that the zoning ordinance is premised on ecological considerations, it has not stated a claim cognizable under NEPA. And because the Section 404 permit expressly provides that it “does not obviate the requirement to obtain state or local assent required by law,” the alleged zoning violation has no relevance to our decision.
Finally, the Coalition claims that the proposed stadium violates the air pollution standards set forth in the Missouri State Implementation Plan for Ozone (SIP). See Environmental Protection Agency Regulations at 40 C.F.R. § 51.18(a) (1986). This argument is without merit. The Corps specifically asked the Environmental Protection Agency (EPA), which is charged with the responsibility for implementing the Clean Air Act, 42 U.S.C. § 7401, et seq., whether automobile emissions associated with the proposed stadium were regulated by the Missouri SIP. The EPA responded in the negative. Moreover, the state agency which implements the SIP raised no objections related to air pollution even though it expressed concern with respect to five other environmental issues. We find under these circumstances that the Coalition has shown no violation of NEPA or the Clean Air Act.
Accordingly, the judgment of the district court is affirmed.
. The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri.
. Section 404 of the Clean Water Act of 1977, 33 U.S.C. § 1344, forbids discharge of dredged or fill materials into "navigable waters” — defined as "waters of the United States” — unless authorized by the Army Corps of Engineers. Fresh water “wetlands” are within this definition and thus are subject to the Corps’ jurisdiction. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); 33 C.F.R. § 323.2(a) (1987) and 33 C.F.R. § 328.3(b) (1987).
. An EA is a brief document which addresses the question whether a project subject to a permit requirement could have significant effects on the environment. The EA must conclude either with a determination that an Environmental Impact Statement is required, or with a finding of no significant impact (FONSI). 33 C.F.R. Part 230, Appendix B, § 8(a) (1987).
. See Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), which requires all agencies of the federal government to include in every recommendation or report on proposals for "major federal actions significantly affecting the quality of the human environment” a detailed Environmental Impact Statement.
. 33 C.F.R. § 325.7 (1987) permits the district engineer to reevaluate the "circumstances and conditions of any permit” and "initiate action to modify, suspend or revoke a permit as may be made necessary by considerations of the public interest.”
. See 33 C.F.R. § 325.7(a) (1987) (significant increases in scope of permitted activity will be processed as new applications).
. See supra, n. 5.
. The relevant portion of the consent decree provides:
When the Corps makes its final determination on the reevaluation, this Consent Decree and Judgment shall not be deemed to bar any future litigation concerning the Corps' determination with respect to the domed sports stadium or related parking lots outside the Riverport levee.
Plaintiffs’ rights to assert all claims and allegations concerning the stadium and related parking lots outside the Riverport levee are preserved, however, allegations and claims directed to both Riverport (the original permit, including the modification thereto as provided in Paragraph 7 herein) and the stadium shall be preserved only to the extent directed to the stadium and related parking lots outside the Riverport levee.
Except as provided ... above, all claims asserted in plaintiffs’ cpmplaint ... are hereby dismissed with prejudice.
. See 40 C.F.R. § 1508.18(b)(4) (1987), Regulations of the Council on Environmental Quality, which includes projects "approved by permit" within the definition of "Major Federal Action.”
. We agree with the district court that a decision not to modify, suspend or revoke a Section 404 permit is one committed to the Corps’ absolute discretion and, as such, it is not reviewable under the Administrative Procedures Act, 5 U.S. C. § 701(a)(1), (2). Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (decision not to enforce is generally committed to agency's absolute discretion and is presumptively unreviewable under APA); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (discretionary decisions unreviewable where statute so broad that in a given case there is no law to apply). In reaching this conclusion we find, as did the district court, that neither the Corps’ regulations nor the Clean Water Act mandáte issuance of a permit or the reevaluation of same. See Harmon Cove Condominium Ass’n, Inc. v. Marsh, 815 F.2d 949 (3rd Cir.1987) (§ 404 of CWA and 33 C.F.R. § 325.7 promulgated thereunder authorize discretionary Corps action). Cf. Dubois v. Thomas, 820 F.2d 943 (8th Cir.1987) (§ 505(a)(2) of CWA); Woodsmall v. Lyng, 816 F.2d 1241 (8th Cir.1987) (§ 501, et seq. of Housing Act of 1949); Hill v. Group Three Development Corp., 799 F.2d 385 (8th Cir.1986) (§ 8 of Housing Act of 1937).
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FAGG, Circuit Judge,
dissenting.
I believe the dispute we are called on to decide in this case has become moot.
The United States Army Corps of Engineers (the Corps) determined that altering the Riverport project plans to include a domed stadium did not require the Corps to change its earlier permit allowing St. Louis County to develop the project without an environmental impact statement. The court suggests the Corps’ decision “was concerned only with the potential environmental effects of a generic, domed stadium [and] * * * did not depend on the Cardinals or any other specific team inhabiting that stadium.” Ante at 1030. I disagree.
The Corps’ Riverport permit decision was triggered by the presence and real commitment of the St. Louis Cardinals football team. With the relocation of the football Cardinals while this appeal was pending, and with no replacement football team on the horizon, the factual predicate for the Corps’ administrative decision no longer exists. Due to this change in the essential nature of the dispute that precipitated the Corps’ challenged action, I believe the appeal before us presents a purely abstract question and not a live case or controversy.
I also disagree with the court’s assessment that the circumstances of this case fit within the exception to the mootness doctrine for controversies that are “ ‘ “capable of repetition, yet evad[e] review.” ’ ” Ante at 1029 (quoted citations omitted). I have no quarrel with the idea that this controversy may resurface in the years to come. Even so, I see nothing about the process for obtaining the Corps’ decision (one way or the other) on the environmental impact statement that makes the process so transient that its “short duration” will inherently escape judicial review. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). On the contrary, if the county attracts another professional football team to occupy a domed stadium within the original River-port project, there will be ample opportunity for the parties to seek review of an administrative decision that will then be based on current facts and circumstances.
To allow review now on a theory that “a football team is a football team is a football team” in my view ignores the true character of this facet of the project as it was submitted to the Corps — that a professional football franchise was then ready and financially prepared to occupy the stadium under specific conditions. I am not willing at this point to presume those conditions had no effect on the Corps’ permit decision or that different variables some time from now likewise will have no impact on future Corps permit determinations.
In sum, the football Cardinals are out of the Riverport project picture, and there is no understudy “anchor tenant” waiting in the wings. Obtaining a replacement team that is willing to commit itself to a domed stadium within the Riverport project is currently a matter of conjecture at best, see SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972). The key reason for considering a variance from the Corps’ original permit has disappeared. Consequently, the specific dispute that was put before the Corps by the supporters and opponents of a domed stadium is now moot. This being so, I would remand the case to the district court for an order directing the Corps to vacate its challenged permit decision. See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 329, 331, 82 S.Ct. 337, 340, 341, 7 L.Ed.2d 317 (1961); Hollister Ranch Owners’ Ass’n v. FERC, 759 F.2d 898, 901-02 (D.C.Cir.1985).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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HARRY PHILLIPS, Senior Circuit Judge.
General Motors Corporation has filed petitions to review the designations by the United States Environmental Protection Agency (USEPA) of certain portions of Defiance, Richland and Montgomery Counties, Ohio, as nonattainment areas for total suspended particulates. 40 C.F.R. 81.336 (1978). The petitions are filed pursuant to § 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1).
This is a part of the ongoing litigation relating to the promulgations of the United States Environmental Protection Agency in Ohio. For a more comprehensive history see Republic Steel Corp., et al. v. Costle, [EPA], 621 F.2d 797 (6th Cir. 1980); Cincinnati Gas & Electric Co. v. EPA, 578 F.2d 660 (6th Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1017, 59 L.Ed.2d 72 (1979); Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150 (6th Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 256 (1978).
General Motors seeks a remand to US-EPA for reconsideration of the promulgations, which are alleged to be so fraught with errors as to make them unlawful, arbitrary and capricious. We conclude that, on the record in the present case, we cannot hold that the decision of the Administrator is unlawful, arbitrary or capricious. Accordingly, we dismiss the petition for review as to USEPA determinations for Rich-land and Montgomery Counties.
I
The purposes of the Clean Air Act, as amended in 1977, (the Act), 42 U.S.C. §§ 7401 et seq., are to protect and enhance the quality of air resources so as to promote the public health; to initiate a national research program to prevent and control air pollution; to provide technical and financial assistance to the states and local governments for -their air pollution programs; and to encourage and assist the development of such programs. 42 U.S.C. § 7401.
In an effort to facilitate the achievement of these purposes, § 107(d) of the Act, 42 U.S.C. § 7407(d), directs each state to identify to the Administrator of the USEPA regions within the state and their national ambient air quality standard (NAAQS), for different pollutants, as generally either: (1) not meeting the primary NAAQS; (2) not meeting the secondary NAAQS; or, (3) unclassifiable. 42 U.S.C. § 7407(d). Congress expressed the intent to provide for the attainment of ambient air quality standards by December 31, 1982. 42 U.S.C. § 7502(a)(1).
The Ohio EPA submitted its list of nonat-tainment areas to Region V of the USEPA in December 1977. Region V disagreed with some of Ohio’s designations and submitted its recommendations to the USEPA in January 1978. The USEPA promulgated its status designations on March 3, 1978. See 40 C.F.R. §§ 81.301 et seq. It did so without the opportunity for prior public comment but provided for a post-promulgation comment period. This court upheld the Administrator’s failure to provide for a pre-promulgation comment period in Republic Steel Corp., et al. v. EPA, supra, 621 F.2d at 803-05.
General Motors submitted its post-promulgation comments to the USEPA on May 2,1978, and simultaneously filed its petition for review.
In September 1978, the USEPA responded to the submitted comments, 43 Fed.Reg. 40412 (1978), and issued a final rulemaking which amended some Ohio designations and also responded to specific comments. 43 Fed.Reg. 45993 (1978). General Motors then filed a petition for review on December 4,1978, which was consolidated with the earlier petition.
General Motors challenges the USEPA’s promulgations for total suspended particulates (TSP) for Defiance, Richland, and Montgomery Counties. In its May 1978, comments, petitioner disagreed with the primary nonattainment designation for Richland Township (excluding the City of Defiance) in Defiance County.
On March 12, 1980, the USEPA at 45 Fed.Reg. 17597 (1980) published a proposed rule to redesignate Richland Township (excluding the City of Defiance) in Defiance County, from primary nonattainment to secondary nonattainment for TSP. We, therefore, find it unnecessary to consider petitioner’s arguments with respect to Defiance County.
II
In the March 1978 promulgations, the USEPA designated Richland County as non-attainment for the primary standard for TSP. General Motors contends that the three monitors surrounding its plant near Mansfield, Richland County, Ohio, showed no violations of the NAAQS for TSP. These data were submitted to the USEPA along with General Motors’ comments. The USEPA refused to consider the data, labeling it “not quality assured.” 43 Fed.Reg. 46000 (1978). Further, the USEPA contends, four of the five monitor sites near Mansfield showed violations of the primary annual TSP standard and the monitoring network in the county was not deemed extensive enough to warrant subcounty designations as permitted by 42 U.S.C. § 7407(d).
These petitions for review, brought pursuant to 42 U.S.C. § 7607, can result in reversal only if the action of the Administrator is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. 706(2)(A); Republic Steel Corp. v. Costle, supra, 621 F.2d 797 (6th Cir. 1980).
Respondents’ brief states:
EPA reviewed the GM data and requested that the state review the data. On August 3, 1978, the state recommended to EPA that the county-wide designation not be changed because the available data “failed to clearly identify an attainment boundary.” Moreover, the Státe commented that its in-progress plan revision of Richland County would clarify the “full extent of the nonattainment area.” Rec.Doc. at 42, App. at 468. In other words, the state recommended that the designation not be changed until its further analysis of air quality in the area was completed. Therefore, based on the state’s recommendation on the proper boundary of the nonattainment area, the Administrator reaffirmed the nonattainment designation of the entire County. 43 Fed.Reg. 46013.
The USEPA stated at 43 Fed.Reg. 46000 that it ignored the General Motors data because it lacked quality assurance.
The facts and circumstances revealed by the record surrounding the promulgation for Richland County lead us to conclude that the Administrator cannot be held to have acted in an arbitrary and capricious manner in designating the county as nonattainment as a whole for the TSP primary NAAQS.
Therefore, we affirm the action of the Administrator in promulgating Richland County as nonattainment for TSP primary NAAQS.
Ill
Petitioner also challenges the designations in Montgomery County where its Del-co Products-Kettering plant is located. In 1977, the Ohio EPA recommended a TSP nonattainment designation around the plant as well as TSP attainment/nonattainment designations in other parts of the county. The recommendation was accepted by the USEPA and promulgated with the sole refinement of classifying nonattainment areas as either primary or secondary nonat-tainment. The Delco Products plant was designated secondary nonattainment for TSP.
As in the case of Richland County, General Motors had been monitoring its Delco Products plant in Montgomery County and submitted documentation to the USEPA of its TSP attainment status taken from its own monitoring network.
After the post-promulgation comment period, in October 1978, the USEPA. promulgated revised designations. The Delco Products plant was now placed in a small attainment “island”.
The Montgomery County designations were developed by the Dayton Regional Air Pollution Control Agency using a computer mapping program called SYMAP. SYMAP uses actual monitored air quality data to produce isopleths which represent the cut points between levels of TSP concentrations. The isopleths are then roughly conformed to geographic or political boundaries and the proper designations are applied to each area.
General Motors alleges in argument that it reviewed the use of SYMAP by the agency as it applied to Montgomery County and found a number of gross errors which it passed along to the USEPA in the form of supplementary comments on November 20, 1978.
The three major errors alleged by General Motors were caused by the short time period the agency had to produce the boundaries with SYMAP (six working days): (1) the SYMAP isopleths were imposed on a map which was not drawn to scale, thus making the boundaries of the attainment “island” inaccurate; (2) the agency placed no limit on the range of influence of the data from each monitor; the stations’ influence on each other distorted the isopleths; and (3) the data from a number of monitors were entered as if it came from a single monitor. General Motors also contends that the revised designation in Montgomery County was made by hand drawing a line around the Delco Products plant which roughly encompassed the five monitors sited at the plant, thus reducing the sphere of influence of each monitor.
Upon consideration of the record and the briefs and oral arguments of the counsel, we conclude that the Administrator did not act in an arbitrary and capricious manner in promulgating the designations for Montgomery County.
The petition to review is dismissed as to the promulgations for Richland and Montgomery Counties. The matter is remanded to USEPA for further proceedings.
No costs are taxed. Each party will bear its own costs in this court.
. See also U.S. Steel Corp. v. USEPA, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980) (dissent from denial of certiorari).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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CARL E..STEWART, Chief Judge:
This is an appeal by Defendant-Appellant John Emerson Tuma (“Tuma”) who was convicted of various crimes related to his involvement in disposing of untreated wastewater. Tuma appeals both his convictions and sentence. For the reasons provided herein, we AFFIRM.
FACTS AND PROCEDURAL HISTORY
The Clean Water Act (“CWA”) prohibits the discharge of pollutants into the waters of the United States without a permit or in violation of a permit. 33 U.S.C. § 1311(a). In Louisiana, the Environmental Protection Agency (“EPA”) has delegated the authority to issue and implement permits for these discharges to the State. The Louisiana Department of Environmental Quality (“LDEQ”) requires entities discharging from wastewater treatment plants to obtain Louisiana Pollutant Discharge Elimination System (“LPDES”) permits. The CWA also regulates the discharge of pollutants into sewer systems that discharge directly into sewage treatment plants operated by municipal governments known as publicly owned treatment works (“POTWs”). POTWs must establish pretreatment programs setting requirements for industrial users discharging pollutants into the' POTWs. 33 U.S.C. § 1342(b)(8); 40 C.F.R. §§ 403.1-403.20. Any person who knowingly discharges pollutants from a point source into the waters of the United States or to a POTW in violation of the conditions of these permits of without a permit is subject to criminal sanctions. 33 U.S.C. § 1319(c)(2).
Tuma owned Arkla Disposal Services, Inc. (“Arkla”), a wastewater treatment facility in Shreveport, LA. At Arkla, the wastewater was supposed to pass through filtration systems and various tanks as part of its processing and purification before discharge. A series of these treatment- and storage tanks were on Arkla’s property and Arkla leased four off-site storage tanks. In September 2006, Tuma sold Arkla to CCS Midstream Services (“CCS”). According to his employees, Tuma retained control of Arkla.
Arkla initially accepted only industrial waste, but later obtained authorization- to accept and discharge exploration and production waste (“E & P”). Louisiana authorized the plant to discharge to Shreveport’s POTW from June 13, 2006 to the end of 2006 and again from July 1, 2007 until March 2, 2008. Arkla’s permit set limits on the levels of pH, oil, grease, biochemical oxygen demand, and total suspended solids. It permitted daily discharge only from Tank B-l. The discharge had to be by batch, meaning that a sample would be taken of the water in Tank B-l in the morning and no additional water could be added after the sample had been taken. The sample would be given to the Pretreatment Office which would approve or disapprove of the batch. Only an approved batch could then be discharged. From December 7, 2006 through June 30, 2007, an LDEQ compliance order authorized Arkla to discharge to the Red River subject to interim effluent discharge limitations contained in the compliance order.
Tank B-l was filled with clean well or city water, sometimes mixed with unprocessed water, which was sampled, approved, and discharged to the POTW. The facility then discharged from other tanks illegally all day and night without any testing, sampling, or city approval to the POTW and the Red River. The key employees involved in these acts were Wayne Mallet, Todd Cage, and Tuma’s son Cody Tuma (“Cody”). These employees followed Tuma’s instructions to illegally discharge the water, watch for regulators, bypass monitoring systems, and check the river for pollution. According to the employees’ accounts, Tuma ran a sham plant.
In October 2007, Cage and another employee reported allegations of the misconduct to CCS, who opened an internal investigation. CCS determined that when Arkla began accepting E & P waste the volume of wastewater increased significantly and Tuma incentivized this large supply. Arkla had discharged untreated water to keep up with this supply. CCS fired both Tuma and Cody and reported its findings to the EPA, who opened its own investigation.
On February 24, 2011, Tuma was indicted with Cody, and charged with one count of conspiracy in violation of 18 U.S.C. § 371, one count of discharging untreated wastewater without complying with the requirements of the permit issued to Arkla in violation of 33 U.S.C. § 1319(c)(2)(A) and 18 U.S.C. § 2, two counts of discharging without a permit from an outfall at the plant to the Red River in violation of 33 U.S.C. § 1311(a), 1319(c)(2)(A) and 18 U.S.C. § 2, and one count of obstruction of an EPA investigation in violation of 18 U.S.C. §§ 2 and 1505. Cody entered a guilty plea to one count of a misdemeanor violation for discharging without a permit, and he testified against his father at trial. At trial, Cody, Cage, Mallet, plant employees, city inspectors, contractors, and an EPA engineer testified against Tuma. The defense presented the testimony of Tuma, a lawyer for Tuma’s plant, employees of the lab that tested the B-l Tank, and an employee of the plant. The jury convicted Tuma on all counts after an eight-day trial. The district court denied Tuma’s motions for a new trial and to reconsider the verdict.
At Tuma’s sentencing, the district court adopted the pre-sentence investigation report (“PSR”) with the exception of a four-level enhancement under United States Sentencing Guidelines (“U.S.S.G.” or “Guideline”) § 2Q1.3(b)(3) for substantial expenditure for clean-up. The PSR yielded a Guideline range of 51 to 63 months of imprisonment based on a resulting offense level of 24 and a criminal history category I. The district court sentenced Tuma to the statutory maximum of 60 months for counts one and five and to 36 months for counts two through four, all running concurrently. The district court also ■ sentenced Tuma to a three-year term of supervised release on all counts, running concurrently, a $100,000 fine, and a $500 payment to the Crime Victims Fund. Tuma timely appealed his convictions and sentence.
DISCUSSION
Tuma raises several constitutional and substantive challenges to his convictions. He also raises challenges to his sentence on multiple fronts. We address each claim in turn.
A. Tuma’s Challenges to His Convictions
Tuma alleges that his constitutional rights were violated by a series of decisions made by the district court. Specifically, he challenges the district court’s decisions to: 1) exclude evidence and testimony related to the lack of environmental harm caused by the discharges and about the plant’s process; 2) deny Tuma’s Federal Rule of Criminal Procedure 15(a) request to depose the foreign CEO of CCS; and 3) restrict the cross-examination of Cody and exclude certain defense witnesses. He also claims that .the cumulative effect of these alleged errors requires reversal.
1. Exclusion of Evidence and Testimony
The district court granted the government’s motion in limine and excluded cerr tain evidence from trial. First, the district court excluded evidence about the lack of environmental harm caused by the discharges because it was irrelevant. Such evidence was not required to prove any of the offenses and did not support any affirmative defense to the crimes charged. Second; the district court preliminarily excluded evidence about the plant’s operation and processes because it was' irrelevant. Ultimately, the district court allowed Tuma to discuss the plant’s processes in his testimony. At trial, Tuma proffered several witnesses, including Charles Tubbs, who would have testified about the lack of environmental harm in an effort to discredit the government’s witnesses. The district court after considering the proffers excluded the testimony. Tuma challenged the decision to exclude Tubbs in his motion for a new trial, which the district court also denied.
“We review a district court’s evidentiary rulings for an abuse of discretion.” United States v. George, 201 F.3d 370, 372 (5th Cir.2000). However, any error made in excluding evidence is subject to the harmless error doctrine’ and “does not necessitate reversal unless it affected the defendant’s substantial rights.” United States v. Shows, 307 Fed.Appx. 818, 823 (5th Cir.2009) (per curiam) (unpublished) (citing United States v. Lowery, 135 F.3d 957, 959 (5th Cir.1998)). In assessing any error, we “must consider the other evidence in the case and determine whether the improperly excluded evidence, if admitted, would have had a substantial impact on the jury’s verdict.” United States v. Alvarez Cala, 133 Fed.Appx. 89, 92 (5th Cir.2005) (per curiam) (unpublished) (internal quotation marks and citation omitted).
We conclude that even if the district court abused its discretion in excluding this evidence, Tuma has not shown that the error affected his substantial rights. Evidence of environmental harm is not an element of any of the charged offenses nor would the lack of environmental harm absolve Tuma of criminal liability — liability based solely on the act of discharging untreated water. See 33 U.S.C. §§ 1319(c)(2)(A), 1311(a); Chevron, USA., Inc. v. Yost, 919 F.2d 27, 30-31 (5th Cir.1990). Tuma has not demonstrated that if the evidence were introduced the jury would have chosen to believe him and disbelieve the government’s witnesses and find him not guilty. See United States v. Garcia-Macias, 206 Fed.Appx. 376, 377 (5th Cir.2006) (per curiam) (unpublished) (affirming the district court’s judgment because the defendant had failed to demonstrate the jury would have believed her testimony if the evidence was not excluded). Turning to the evidence of the plant’s processes, Tuma presented substantial evidence on this to the jury. Any error in excluding this evidence was harmless and did not affect Tuma’s substantial rights.
2. Inability to Depose the CEO of CCS
Tuma sought to have CCS’s CEO testify that it had thoroughly inspected Arkla before buying it, found it operational, and continued to operate it. Because Tuma could not subpoena the Canadian CEO, he moved for the issuance of letters rogatory to depose the CEO, pursuant to 28 U.S.C. § 1781(b)(2). Tuma argued that the CEO possessed information relevant to his defense and that it was discoverable. The district court denied this request because it did not find the need to depose the CEO exceptional as required by Federal Rule of Criminal Procedure 15(a).
We review violations of the compulsory process clause de novo, but the defendant must demonstrate the necessity of the witness’s testimony. United States v. Soape, 169 F.3d 257, 267-68 (5th Cir.1999). We review a district court’s Rule 15(a) decisions for abuse of discretion. United States v. Allie, 978 F.2d 1401, 1405 (5th Cir.1992). Any error committed by the district court in denying a Rule 15(a) motion is subject to a harmless error analysis. See United States v. Dillman, 15 F.3d 384, 389 (5th Cir.1994) (finding any error committed by the district court in making a Rule 15(a) decision harmless). We also review a district court’s decision to deny the issuance of letters rogatory for abuse of discretion. United States v. El-Mezain, 664 F.3d 467, 517 (5th Cir.2011).
We hold that there was no violation of Tuma’s right to compulsory process. It is well-established that a conviction is constitutional ' and does not violate a defendant’s right to compulsory process even when the court lacks the power to subpoena potential defense witnesses from foreign countries. United States v. Zabaneh, 837 F.2d 1249, 1259-60 (5th Cir.1988).
Further, there was no abuse of the district court’s discretion in denying Tuma’s request for letters rogatory, which the district court treated as a Rule 15(a) motion. Rule 15(a) provides that a “court may grant the motion [to take a witness’s deposition] because of exceptional circumstances and in the interest of justice.” Fed.R.Crim.P. 15(a). The district court did not abuse its considerable discretion in concluding that there were no “exceptional circumstances” in this case. Tuma bears the burden of proof on this issue and he has failed to meet that burden. See Allie, 978 F.2d at 1404-05. Tuma made only conclusory allegations that the CEO possessed relevant information to his defense. However, even assuming that the CEO personally possessed this information, the CEO could only demonstrate that CCS believed Arkla was operational in September 2006. The indictment charged continuous misconduct that occurred for more than a year after that point. It was CCS’s own internal investigation that' eventually led to this indictment. Further, even if there were error by the district court; such error would be harmless as Tuma has not demonstrated that this decision affected his substantial rights.
S. Restricted Cross-Examination and Exclusion of Witnesses
Tuma next argues that the district court violated his right to confront the witnesses against him by limiting his cross-examination of Cody. He argues that he was unable to demonstrate Cody’s bias against him and Cody’s true motives for testifying. Additionally, Tuma argues he was unable to impeach Cody’s stated motives for testifying because the court excluded the testimony of witnesses who could impeach him. For the first time on appeal, Tuma challenges the denial of his motion to reconsider the denial of his motion for a new trial.
The district court limited both Cody’s and Tuma’s testimony relating to a custody case against Cody’s current wife brought by his ex-wife. Specifically, the district court excluded testimony about the particular abuse allegations, but allowed testimony concerning Tuma’s refusal to give Cody money to find a lawyer for the custody dispute. The district court excluded a letter the defense sought to introduce that Cody’s current wife had written him under Federal Rules of Evidence 403 and 608(b). The district court struck, without any argument from the defense, two defense witnesses, Cody’s ex-wife and his current wife, because it believed each would testify about the custody dispute — a domestic matter that had nothing to do with the illegal discharges. On a motion to reconsider the denial of Tuma’s motion for a new trial, the defense submitted an affidavit from Cody’s ex-wife that she would have testified to facts that allegedly impeached Cody’s statéd reasons for testifying against Tuma.
We review alleged constitutional violations of the confrontation clause de novo, subject to a harmless error analysis. United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If there is no constitutional violation, this court reviews any limitation on a defendant’s right of cross-examination for abuse of discretion. Id. at 558-59. We will not find an abuse of discretion unless the limitations were clearly prejudicial. El-Mezain, 664 F.3d at 491. We review a district court’s evi-dentiary rulings for abuse of discretion subject to a harmless error analysis. George, 201 F.3d at 372.
We examine the trial testimony to determine whether there was a violation of a defendant’s right to confront the witnesses against him. Jimenez, 464 F.3d at 559. The record reflects an extensive cross-examination of Cody. To the extent the district court excluded testimony about the specifics of the custody case, this does not amount to a violation of Tuma’s constitutional rights. It was well within the district court’s discretion to impose this reasonable limit. See United States v. Diaz, 637 F.3d 592, 597 (5th Cir.2011) (stating that a district court has discretion “to place reasonable limits on a criminal defendant’s right to cross-examine a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant” (internal quotation marks and citation omitted)). Between Tuma and Cody’s testimony the jury had sufficient information to appraise Cody’s bias and motives to testify against his father. See id. (stating that this court looks into “whether the jury had sufficient information to appraise the bias and motives of the witness” (internal quotation marks and citation omitted)). The jury knew that there was a custody dispute between Cody and his ex-wife Kristin and that Tuma supported Kristin in the dispute and refused to assist his son.
Further, there was no abuse of discretion by the district court when it did not admit the letter or allow cross-examination on it. The letter’s probative value was outweighed by the danger of unfair prejudice, misleading the jury, and wasting time. These are appropriate reasons for excluding the letter. Fed.R.Evid. 403. As substantive evidence, it would have been impermissible and as such was properly excluded by the district court. Fed. R.Evid. 608(b).
Tuma did not object or make any proffer regarding the exclusion of the two defense witnesses at trial; therefore, his claim is reviewable for plain error only. United States v. McRae, 702 F.3d 806, 832 (5th Cir.2012). Plain error review involves four prongs: (1) there must be error; (2) it must be clear or obvious; (3) it must have affected defendant’s substantial rights; and (4) the court will exercise its discretion and remedy the error only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 832-33 (quoting United States v. Delgado, 672 F.3d 320, 329 (5th Cir.2012) (en banc) (alterations in original)). Even assuming the first two prongs of the analysis are satisfied the error did not affect Tuma’s substantial rights. The jury had sufficient information to appraise Cody’s bias and motive for testifying against Tuma, which the excluded testimony would have reiterated. The jury knew of Cody’s past and that 'he had previously made false statements under oath on multiple occasions. Even if the jury would have discounted Cody’s testimony, the other government witnesses confirmed it. There was no plain error in excluding these witnesses.
Finally, Tuma’s appeal of the denial of his motion to reconsider his motion for a new trial raised for the first time in his reply brief is reviewable only if necessary to prevent a miscarriage of justice. See United States v. Rodriguez, 602 F.3d 346, 360 (5th Cir.2010) (“[0]ur court generally will not consider an issue raised for the first time in a reply brief.”). Given the above analysis, we conclude there was no injustice in the denial of this motion to reconsider.
Jp. Cumulative Effect of the Alleged Errors
We have recognized that “the cumulative effect of a series of errors may require reversal, even though a single one of those errors, standing alone, would not require such a result.” United States v. Villarreal, 324 F.3d 319, 328 (5th Cir.2003) (citation omitted). “The doctrine justifies reversal only in the unusual case in which synergistic or repetitive error violates the defendant’s constitutional right to a fair trial.” United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (en banc). Having found at most harmless error by the district court, we decline to apply this doctrine to this case. See id.
B. Tuma’s Challenges to His Sentence
Tuma raises several challenges to his sentence. Specifically, he challenges four provisions of the Guidelines that the district court relied on to enhance his sentence. He also challenges the district court’s denial of his request for an eviden-tiary hearing and the denial of several departures that he sought pursuant to the commentary in the applicable Guidelines’ sections. Finally, he challenges the substantive reasonableness of his sentence.
We review legal conclusions made by a district court at sentencing, including the interpretation and application of the Guidelines, de novo. United States v. Whitfield, 590 F.3d 325, 365 (5th Cir.2009). We review for clear error factual determinations by the district court made in applying the Guidelines.', Id. at 365-66. We also review the district court’s determination that a defendant was an organizer or leader for clear error. United States v. Davis, 226 F.3d 346, 360 (5th Cir.2000). We review for abuse of discretion the denial of an evidentiary hearing at sentencing. United States v. Hass, 199 F.3d 749, 751 (5th Cir.1999).
We lack jurisdiction to review the denial of a downward departure unless the district court’s denial resulted from a mistaken belief that the Guidelines do not give it authority to depart. United States v. Sam, 467 F.3d 857, 861 (5th Cir.2006). This rule applies to departures found in both Chapter 5, Part K of the Guidelines and in the commentary to the Guidelines. See id. (applying the rule to a departure in Chapter 5, Part K); United States v. Molina, 490 Fed.Appx. 674, 675 (5th Cir.2012) (per curiam) (unpublished) (applying the rule to the departures in the commentary of U.S.S.G. § 2M5.2); United States v. LeBlanc, 119 Fed.Appx. 654, 656 (5th Cir.2005) (per curiam) (unpublished) (applying the rule to the departures in the commentary to U.S.S.G. § 2Q1.3). We conclude that Tuma’s argument against this rule’s application to departures in the commentary is without merit. Departures in Chapter 5, Part K of the Guidelines are specifically identified as policy statements, see U.S.S.G. §§ 5K1.13.1, and the Guidelines provide that commentary suggesting circumstances that may warrant a departure have the legal significance of policy statements, U.S.S.G. § 1B1.7. Therefore, these are both subject to the jurisdictional rule stated above.
1. Enhancement Pursuant to U.S.S.G. § 2Ql.S(b)(Jp)
The district court applied a four-level increase to Tuma’s offense level pursuant to U.S.S.G. § 2Q1.3(b)(4). U.S.S.G. § 2Q1.3(b)(4) provides that “[i]f the offense involved a discharge without a permit or in violation of a permit, increase by 4 levels.” U.S.S.G. § 2Q1.3(b)(4). The commentary to this subsection states that “[depending upon the nature and quantity of the substance involved and the risk associated with the offense, a departure of up to two levels in either direction may be warranted.” Id. § 2Q1.3 cmt. n. 7. The district court declined to apply the upward departure sought by the government and the two-level downward departure sought by Tuma.
Tuma argues that the district court misapplied the Guideline section and failed to weigh all the relevant factors in its decision. We hold that there was no error by the district court in applying this enhancement to Tuma whose conduct the enhancement plainly encompassed. We lack jurisdiction to review the denial of this departure unless the district court had a mistaken belief that it did not have the authority to make the departure. See LeBlanc, 119 Fed.Appx. at 656. Here, the district court clearly considered the departure and chose not to apply it in light of the quantity of the discharges involved. Therefore, we will not review the denial of this departure.
2. Enhancement Pursuant to U.S.S.G. § 2Ql.3(b)(l)(A)
The district court applied a six-level enhancement pursuant to U.S.S.G. § 2Q1.3(b)(l)(A) for ongoing, repetitive, continuous discharge of a pollutant. This Guideline subsection states that “[i]f the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environment increase by 6 levels; or (B) if the offense otherwise involved a discharge, release, or emission of a pollutant, increase by 4 levels.” U.S.S.G. § 2Q1.3(b)(l). The commentary addressing this subsection states that it “assumes a discharge or emission into the environment resulting in actual environmental contamination.” U.S.S.G. § 2Q1.3 cmt. n. 4. The commentary also provides for a departure of up to two levels in either direction “[depending upon the harm resulting from the emission, release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation----” Id. Tuma sought: (1) a downward departure based on the absence of any proof of environmental contamination, or (2) an evidentiary hearing to prove lack of contamination. The district court denied both requests and imposed the full six-level enhancement.
We have recognized that U.S.S.G. § 2Q1.2(b)(l)(A) assumes environmental harm, allowing for departures based on the degree of harm. United States v. Goldfaden, 959 F.2d 1324, 1331 (5th Cir.1992). Tuma does not challenge that we also assume contamination for purposes of applying U.S.S.G. § 2Q1.3(b)(l)(A). In a footnote in his brief, Tuma only preserves his general objection to this rule of law and provides no legal or factual analysis. Therefore, we need not address this argument. United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir.2010). Instead, Tuma argues that the district court erred by declining to grant the downward departure when there was no evidence of environmental contamination presented to the court. We do not have jurisdiction to review this claim because the district court understood its authority to grant the departure. See. LeBlanc, 119 Fed.Appx. at 656. The district court considered and evaluated Tuma’s arguments as well as the guidance in the commentary.
To the. extent Tuma also challenges the application of U.S.S.G. § 2Q1.3(b)(l)(A) to increase his offense level, such arguments are also unavailing. The district court properly applied the enhancement to Tuma. There was evidence of repeated discharges over a significant period of time, constituting “ongoing, continuous, or repetitive” conduct. There was no misapplication or misinterpretation of § 2Q1.3(b)(1)(A) by the district court.
Tuma also argues that the Supreme Court’s recent decision in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), mandates that any fact that increases the defendant’s minimum sentence — in Tuma’s case the environmental contamination — must be found by a jury. This argument is unavailing. The Alleyne decision applies only to facts that increase a statutory mandatory minimum sentence. Id. at 2158. The Court specifically cautioned that “[o]ur ruling today does'not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.” Id. at 2163 (citation omitted). Tuma’s sentence did not expose him to a mandatory minimum sentence and was well within the sentencing discretion of the district court; therefore, Al-leyne is inapplicable. See United States v. Neuner, No. 12-10915, 535 Fed.Appx. 373, 377 n. 3, 2013 WL 3456747, at *3 n. 3 (5th Cir. July 10, 2013) (per curiam) (unpublished) (holding Alleyne inapplicable because “[u]nlike the statutory framework in Alleyne’s mandatory minimum sentence, [defendant’s] statutory penalties did not expose him to a mandatory minimum sentence and none was pronounced”)-.
3. Denial of Request for Evidentiary Hearing
Thma argues that the district court erred by refusing to hold an evidentiary hearing at sentencing, particularly on the issue of environmental harm. However, we have recognized that there is no abuse of discretion when-a defendant has an opportunity to review.-the PSR and submit formal objections to it. United States v. Patten, 40 F.3d 774, 777 (5th Cir.1994) (per curiam). Here, Tuma had an opportunity to review the PSR, file extensive formal objections to the enhancements sought by the government, and submit an affidavit from Tubbs concerning the lack of environmental harm. The district court inquired into whether the parties had anything additional to submit or argue at sentencing and Tuma did not. There was no abuse of the district court’s discretion in declining to conduct a full evidentiary hearing given these facts.
A Enhancement for Role in the Offense
Tuma next challenges a four-level enhancement the district court applied for his role in the offense. The applicable Guideline provision provides that: “If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.” U.S.S.G. § 3Bl.l(a). The commentary provides that: “In assessing whether an organization is ‘otherwise extensive,’ all persons involved during the course of the entire offense are to be considered. Thus, a fraud that involved only three participants but used the unknowing services of many outsiders could be considered extensive.” Id. § 3B1.1 cmt. n. 3. The district court imposed this enhancement- regardless of the number of participants because it found that Tuma’s activities were “otherwise extensive.”
There was no clear error by the district court in applying this four-level enhancement to Tuma. We have held that “[i]n deciding whether a scheme was otherwise extensive, the district court must take into account all persons involved during the course of the entire offense.” United States v. Ho, 311 F.3d 589, 611 (5th Cir.2002) (alteration in original) (internal quotation marks and citation omitted). This includes taking into account unknowing participants who contributed to the success of the criminal enterprise. United States v. Vogel, 459 Fed.Appx. 439, 442 (5th Cir.2012) (unpublished). The district court properly focused on the number of people involved in the scheme including the unknowing participants, such as the truck drivers transporting the wastewater and the contractors. These unknowing participants were essential to the crime; without their participation Tuma’s activities could not have happened or continued.
5. Enhancement for Obstruction of Justice
Tuma challenges the constitutionality of a two-level increase the district court imposed for obstruction of justice based on Tuma’s perjury at trial. Tuma argues that the application of the enhancement deprives him of his ability to put on a defense and interferes with his right to testify. However, a criminal defendant cannot argue that increasing his sentence based on his perjury interfered with his right to testify because a defendant’s right to testify does not include a right to commit perjury. United States v. Dunnigan, 507 U.S. 87, 96-98, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). Tuma acknowledges this precedent, briefly' argues it was wrongly decided, and writes to preserve the issue. Dunnigan forecloses Tuma’s argument. See United States v. Ceballos-Amaya, 470 Fed.Appx. 254, 263 (5th Cir.2012) (per curiam) (unpublished) (“[Defendant] acknowledges the Supreme Court’s ruling in Dunnigan but maintains that the decision was wrongly decided. As such, [defendant’s] argument is foreclosed.”).
6. Reasonableness of Sentence
Finally, Tuma challenges the substantive reasonableness of his sentence. Tuma argues that the district court never explained how the sentencing factors in 18 U.S.C. § 3553 applied to his case. He alleges it mechanically imposed a Guideline sentence, and in doing so, abused its discretion. Addressing the statutory factors, Tuma argues that the district court failed to consider: (1) the lack of environmental harm, which indicates the crimes were less severe; (2) Tuma’s tragic past and unblemished life; (3) the sentences of others who have pled guilty to environmental offenses; and (4) the court’s own finding that Tuma would not reoffend nor would the public need protection from him.
We review challenges to sentences for reasonableness for abuse of discretion only. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.2009). This review occurs in two parts. Id. First, this court considers whether there was a procedural error made by the district court. Id. Procedural errors include “miscalculating or failing to calculate the sentencing range under the Guidelines, treating the Guidelines as mandatory, [or] failing to consider the § 3553(a) factors ....’’ Id. (citation omitted). If there is no procedural error, then this court “engages in a substantive review based on the totality of the circumstances.” Id. (citations omitted). “[A] sentence within the Guidelines range is presumed reasonable on appeal.” Id.
We conclude that the district court did not abuse its discretion in this case. First, there was no procedural error. The district court at sentencing noted several times that he had read and considered the “copious briefs,” the objections to the PSR, sentencing memorandum, and reply memorandum. The district court stated that it had “studied the provisions of 3553(a)” and its factors at sentencing. Because of the district court’s reference to the arguments made in the briefs and sentencing memorandum, we look to these documents to determine if they provide adequate information about the factors the district court considered and whether the district court’s reasons were adequate. See United States v. Bonilla, 524 F.3d 647, 658 (5th Cir.2008). These documents include arguments by both sides on the § 3553(a) factors and each factor’s application, providing clarification on what the court considered at sentencing. By examining the record in full, the district court’s reasons for the chosen sentence are clear and this court can review them. We conclude that there is no procedural error here.
Finding no procedural error, we next consider the substantive reasonableness of Tuma’s sentence. Because the sentence was within the Guideline range it is presumed substantively reasonable. United States v. Diaz Sanchez, 714 F.3d 289, 295 (5th Cir.2013). Turna has not rebutted this presumption with evidence that the district court improperly considered a factor, failed to take into account a factor, or made a clear error in balancing the factors. See id. (“The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” (internal quotation marks and citation omitted)). The government persuasively demonstrates that the nature and circumstances of the offense were serious, Tuma’s history and personal resolve were not unique, and the sentencing disparities alleged by Turna were warranted by a factual comparison of the defendants. Given these facts, the district court did not abuse its discretion in weighing the factors and applying a presumptively reasonable within-the-Guidelines sentence.
CONCLUSION
For the aforementioned reasons, we AFFIRM Tuma’s convictions and sentence.
. "Pollutant[s]” for purposes of the CWA are defined in 40 C.F.R. § 122.2 as:
[D]redged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.
. A "[p]oint source” is defined as "any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged.” 40 C.F.R. § 122.2.
. Tuma also asserts throughout his brief that these evidentiary decisions violated his constitutional “right to present a defense.” Because he fails to provide any analysis of this claim, it is waived and we need not address it. United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir.2010).
. In a footnote in its order, the district court said that even if evidence of environmental harm were relevant it would be excluded under Federal Rule of Evidence 403.
. 28 U.S.C. § 1781(b)(2) allows courts to issue letters rogatory directly to a foreign tribunal or agency. Letters rogatory are “a formal request from a court in one country to the appropriate judicial authorities in another country that can effectuate service of process" on individuals in that country. Magness v. Russian Fed'n, 247 F.3d 609, 614 n. 10 (5th Cir.2001).
. We recognize these have been treated as two separate means for obtaining evidence— the issuance of letters rogatory or a Rule 15(a) deposition — even in criminal cases. See United States v. Sensi, 879 F.2d 888, 899 (D.C.Cir.1989). Neither party raises the issue of whether Rule 15(a)’s exceptional circumstances requirement should apply to the request for issuance of letters rogatory; therefore, we need not' address it and assume without deciding that it does.
. The court determined that its probative value was substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, and that it was a waste of time as well as an attempt to impeach the witness with extrinsic evidence.
. Section 2Q1.2 applies to the "mishandling of hazardous or toxic substances or pesticides; recordkeeping, tampering and falsification; unlawful transportation of hazardous materials in commerce.” Section 2Q1.3 applies to the "mishandling of other environmental pollutants; recordkeeping, tampering, and falsification.” Subsection (b)(1)(A) in both § 2Q1.2 and § 2Q1.3 and the commentary accompanying these sections are identical.
. Tuma first makes this argument in his reply brief and although typically such an argument would be waived, Alleyne was decided after the original briefs had been submitted to this court. Therefore, we consider his argument.
. Factors to be considered in applying this enhancement are: "(1) exercise of decision-making authority; (2) nature of participation in the commission of the offense; (3) recruitment of accomplices; (4) claimed right to a larger share of the fruits of the crime; (5) degree of participation in planning or organizing; (6) nature and. scope of the illegal activity; and (7) degree of control or authority exercised over others.” United States v. Fullwood, 342 F.3d 409, 415 (5th Cir.2003) (citing U.S.S.G. § 3B1.1 cmt. n. 4.).
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BELL, Circuit Judge:
The Federal Water Pollution Control Act (WPCA), 33 U.S.C.A. § 1161(b) (4), requires the “person in charge” of a vessel or an offshore or onshore facility to notify the appropriate federal agency when his vessel or facility discharges oil into surrounding water. The Act extends a measure of protection to persons who comply with this requirement. It provides that information obtained by the government in consequence of the mandatory disclosure of oil discharges may not be used “in any criminal ease” against the persons who make the disclosure. The central issue on this appeal is whether, in the defense of a prosecution under the Rivers and Harbors Appropriation Act of 1899, 33 U.S. C.A. §§ 407, 411, the corporate owner of an onshore facility may avail itself of this statutory immunity. The district court held that the corporate owner may not. We disagree.
The relevant facts are not in dispute. Mobil Oil Corporation owns a plant near Vanderbilt, Texas. In May, 1970, simultaneous malfunctions in independent regulatory mechanisms caused tanks at the Vanderbilt plant to discharge approximately 150 barrels of oil into Venado Creek, a navigable waterway of the United States. It was stipulated that Mobil discovered the discharge and notified the Coast Guard through one of its employees. The Coast Guard, which had no prior knowledge of the accident, initiated an investigation. After this investigation the United States Attorney for the Southern District of Texas filed an information against Mobil. This information was based solely on facts that the government obtained by exploiting the notification given by Mobil. The information charged that Mobil had violated the federal prohibition against the discharge of refuse into navigable waters of the United States. In due course Mobil was prosecuted, convicted, and fined.
Mobil argues that the notice of the discharge into Venado Creek was given in accordance with the requirements of the WPCA and that the immunity conferred by statute extends to facts the government obtained by exploiting this notification. Because the information against Mobil was based solely on facts that were obtained in this way, the subsequent conviction, Mobil contends, was invalid.
The government argues that the information against Mobil, a corporate owner, was proper despite the necessary facts having been obtained through exploitation of the notice. Conceding that statutory immunity would otherwise bar the use of such facts, the government asserts that immunity does not bar their use in this ease, for the Mobil Oil Corporation is not, the government contends, within the class of persons to whom the immunity extends.
The statutory language that bears upon these contentions is found in § 1161(b) (4), supra, Fn. 1, of the WPCA. That section imposes the duty of disclosure upon “[a]ny person in charge of a vessel or of an onshore facility or an offshore facility.” The section further provides that the “information obtained by the exploitation of such notification shall not be used against any such person in any criminal case . . . .” Whether Mobil is entitled to the statutory immunity conferred depends, in turn, on whether Mobil was a “person in charge” of the Vanderbilt facility within the terms of the statute.
While the WPCA does not describe the character of the proprietary function signified by the phrase “in charge,” it does describe the “person” to whom the provisions of § 1161 extend. Under the Act a “person” is any “individual, firm, corporation, association, or partnership” (emphasis supplied). 33 U.S.C.A. § 1161(a) (7). Thus the Mobil Oil Corporation is a “person” within the meaning of the WPCA. It remains to be decided whether Mobil, as owner of the Vanderbilt plant, was “in charge” of the facility at the time of the accident.
The answer to this question emerges from a consideration of the logic of the statute and the congressional purposes that give it form and substance. The structure of § 1161 suggests that the persons who are entitled to immunity are the persons who are required to make disclosure in the first instance. Thus, while the narrow issue presented on this appeal concerns entitlement to the statutory immunity, that issue is to be resolved in light of the policy and the scope of the statutory obligation. By requiring that certain persons disclose information concerning oil discharges, Congress took steps to ensure the timely discovery of abatable hazards and to facilitate the implementation of measures calculated to minimize pollution damage. Absent a requirement to report, discharges of small amounts of oil such as is the case here, might well go undetected or, at least, the possibility of abatement would be lessened. This policy bears heavily on question of the class of persons to whom the provisions of the statute extend— that is, the “persons in charge” of vessels and facilities.
The owner-operator of a vessel or a vacility has the capacity to make timely discovery of oil discharges. The owner-operator has power to direct the activities of persons who control the mechanisms causing the pollution. The owner-operator has the capacity to prevent and abate damage. Accordingly, the owner-operator of a facility governed by the WPCA, such as the Mobil facility here, must be regarded as a “person in charge” of the facility for the purposes of § 1161. A more restrictive interpretation would frustrate congressional purpose by exempting from the operation of the Act a large class of persons who are uniquely qualified to assume the burden imposed by it.
We conclude that an owner-operator is “in charge” of his facility within the meaning of § 1161. It necessarily follows that a corporate owner, a “person” within the statutory definition, is a “person in charge” of the facilities it owns and operates and is thus entitled to the statutory immunity.
The government cites legislative history in support of its contention that a contrary result must be reached in this case. We view this history as inconclusive. Some of the materials asserted to be relevant in fact deal with the meaning of language which is not contained in the statute. Thus, materials which allegedly support the view that § 1161 extends only to natural persons (e. g., foremen, supervisors, individuals who are “operationally in charge” of vessels or facilities) were developed in respect of language contained in the House Bill, which spoke in terms of “individuals in charge”, not “persons in charge.” See H. Rep. No. 91-127, 91st Cong., 1st Sess. 2, 10 (1969) ; H. Rep. No. 91-940, 91st Cong., 2d Sess. 29 (1970), U.S.Code Cong. & Admin.News 1970, p. 2691. Of course, the latter, broader phrase, which must be read in light of the comprehensive statutory definition of “persons,” was the language finally adopted by Congress. Further, to the extent that legislative history does shed light on the meaning of “persons in charge,” it suggests at the very most that Congress intended the provisions of § 1161 to extend, not to every person who might have knowledge of an oil discharge (mere employees, for example), but only to persons who occupy positions of responsibility and power. See S. Rep. No. 91-351, 91st Cong., 1st Sess. 16 (1969); H. Rep. No. 91-940, 91st Cong., 2d Sess. 34 (1970). Nothing in the legislative history suggests that owner-operators of vessels and facilities are not members of that class.
The government contends further that for the purposes of determining the scope of the statutory immunity a corporate owner should be treated differently from an owner who is a natural person. The government maintains that this differentiation is warranted because the immunity provision of § 1161 is designed to insulate the enforcement of the statutory duty from the operation of Fifth Amendment privilege against self-incrimination. Corporations, of course, do not enjoy that privilege. George Campbell Painting Corp. v. Reid, 1968, 392 U.S. 286, 88 S.Ct. 1978, 20 L. Ed.2d 1094. For this reason the government maintains that the statutory immunity should not be held to extend to corporations.
This argument ignores a second function of the immunity provision. Immunity insulates enforcement of the statutory duty from the operation of the constitutional privilege, but it also provides a valuable incentive for disclosure in the first instance. Thus, even where the constitution would permit the prosecution of a corporate owner on the basis of information the owner was compelled to disclose, the statute provides the assurance that the owner will not be harmed by incriminating evidence which the government obtains by exploiting the mandatory notice. Thus the immunity provision encourages the owner to comply with his statutory duty. The provision is an essential feature of the statutory scheme. To preserve the provision to the full extent of its intended function, the scope of statutory immunity must be held to extend to all persons covered by § 1161, whether they enjoy the constitutional privilege or not.
Finally, we observe that nothing in this interpretation of the scope of the statutory immunity impairs the operation of substantive criminal prosecutions against the discharge of refuse into navigable waters of the United States. The Rivers and Harbors Appropriation Act of 1899 remains intact. Indeed, it is preserved by a savings clause in the WPCA. 33 U.S.C.A. § 1174. We hold only that government may not, in the prosecution of offenses defined by the Rivers and Harbors Appropriation Act, rely upon information obtained solely from the notice mandated by § 1161 or from the exploitation thereof. Under the facts stipulated here, where there is no evidence against Mobil save what it disclosed or that which flowed from the disclosure, the conviction cannot stand.
Reversed and remanded for further proceedings not inconsistent herewith.
. 33 U.S.C.A. § 1161(b) (4) :
(4) Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil from such vessel or facility in violation of paragraph (2) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such diseharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.
. 33 U.S.C.A. § 407:
It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever . . . into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.
33 U.S.C.A. § 411:
Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.
. Here the discharge was partially abated through recovery of some of the oil and a clean-up effort.
. The government has on occasion given this statute a similar construction by prosecuting corporate owner-operators for failure to report under § 1161. See the indictment issued by the grand jury for the Southern District of New York, United States v. B. P. Oil Corp. and Barge Terminal, Inc. unreported, (S.D. N.Y.1970), 70 Crim. 1107; United States v. Gulf Oil Corp., unreported, (W.D.Ohio, 1971), Crim. No. 11795.
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WOLLMAN, Circuit Judge.
Gary Bailey constructed a road on a parcel of wetlands in Lake of the Woods County (County), Minnesota, without obtaining a permit under Section 404 of the Clean Water Act (Act). The United States Army Corps of Engineers (Corps) ordered Bailey to restore the land to its previolation condition. Bailey refused, and the United States brought an action under Section 309(b) of the Act to enforce the restoration order and to enjoin Bailey from discharging further pollutants into the wetland. Bailey counterclaimed against the United States, alleging that the Corps did not have jurisdiction over his parcel of land and that its restoration order was arbitrary and capricious. Bailey sued the County in a third-party complaint, alleging that the County should pay to restore the land. All parties moved for summary judgment.
In a most comprehensive, thorough opinion (from which we have borrowed extensively), the district court granted in part the United States’s motion for summary judgment, finding that the Corps properly asserted jurisdiction under the Act and that its restoration order met the requirements of United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir.1976). United States v. Bailey, 516 F.Supp.2d 998 (D.Minn.2007). The district court dismissed Bailey’s counterclaim against the United States and his third-party complaint against the County. Id. The district court subsequently issued a final injunction, ordering Bailey to restore the wetland at his own expense to its previolation condition. United States v. Bailey, 556 F.Supp.2d 977 (D.Minn.2008).
Bailey appeals, contending that the district court erred in concluding that the Corps has jurisdiction over his property, in granting summary judgment in favor of the United States, and in entering an injunction to enforce the restoration order. He also argues that the restoration order is arbitrary and capricious. We affirm.
I. Factual Background
Bailey owns a parcel of land along the western shore of the Lake of the Woods (Lake), which is located in northern Minnesota. At issue in this lawsuit is a thirteen-acre site that consists of approximately twelve acres of wetland, as defined by the Corps.
In the early 1990s, Bailey considered developing the site and received a general permit from the Corps to excavate a harbor. The permit, however, excluded fills for commercial development or residential housing. In 1993, the Corps advised Bailey that the intended harbor was located on wetland and informed him that he would need additional permits to place dredged or fill material on the site. In 1994, after Bailey and a Corps official visited the site, the Corps suggested that Bailey hire a consultant “to help you delineate this highly diverse site and prepare the required application that was previously provided to you.” The harbor project was eventually abandoned.
Bailey decided to plat the site for residential development and sell the lakeside property. The development was named Sunny Beach and consisted of fourteen lots, each having approximately 100 feet of lakefront. In 1998, Bailey hired Mark LaValla to build a road through the site to provide access to the lots. Bailey did not seek any permits from the Corps before LaValla began constructing the road.
LaValla cleared a roadway sixty-six feet wide and about a quarter of a mile long, running parallel to the Lake’s shoreline. LaValla dug ditches on either side of the road and used the excavated material to build up the road. Before the road was complete, on June 11, 1998, employees of the local Soil and Water Conservation District visited the site and told LaValla that the road construction was not properly permitted and that he should stop construction, which he did. On June 15, 1998, a Corps employee visited the site with Bailey and several employees from the County and the Soil and Water Conservation District and instructed Bailey to do no more work on the road. About a week later, a representative from the Environmental Protection Agency (EPA) told Bailey that the EPA would not pursue an enforcement action if Bailey stopped all work on the road until he obtained a proper permit.
On June 17, 1998, Bailey filed a Local-State-Federal Project Notification Form with the County wherein he proposed building an access road for logging on the site. Bailey believed that his application would be accepted, and he alleges that an official from the Soil and Water Conservation District told him that the Corps would approve the permit and that he should finish the road. Without waiting for a decision on his application, Bailey instructed LaValla to finish work on the access road. LaValla completed the road, topping the roadbed with 2000 square yards of gravel.
The Corps received a copy of Bailey’s notification form on August 17, 1998, and treated it as an after-the-fact application for a permit under Section 404 of the Act. On September 17,1998, after the road was complete, the Corps notified Bailey in writing that the work was done in violation of the Act, that his permit was incomplete, that no additional work should be done on the road without a permit, and that if his permit was ultimately denied, he would be required to restore the land to its previous condition.
Bailey intended to dedicate the road to the County so that the road would become public and be maintained by the County. Accordingly, the road had to be built to meet the County’s road specifications. Bailey requested that the road be inspected, and by letter dated September 16, 1998, the County’s highway engineer informed Bailey of his inspection and of certain improvements that were required to bring the road into compliance with County road standards. The highway engineer sent a second letter in November 1998, detailing specific recommendations and requiring that a $10,000 bond be posted to ensure that the road met County standards. In the spring of 1999, Bailey hired LaValla to complete the improvements, which included adding approximately 530 square yards of gravel to the road and replacing the culverts with new pipe. LaValla completed the work on the road that summer.
While the road was being completed, Bailey was also preparing to plat the site. In October 1998, shortly after he received the notice of violation from the Corps, Bailey filed an application with the County to plat fourteen residential lots on the site. The County’s environmental services director recommended the approval of the Sunny Beach plat, and the County’s board of commissioners approved the plat on December 22, 1998. Upon approval of the plat, the road became a public road, although the County disputes the nature and extent of its property rights.
On June 12, 2001, the Corps denied Bailey’s Section 404 permit application. On October 22, 2001, after a period of public notice and comment, the Corps ordered Bailey to restore the property at his own expense. The restoration order required Bailey to (1) remove the dredged and fill material used in construction of the road; (2) fill in the ditches with native, loamy soils; (3) seed the restored area with a specified seed mixture; and (4) control certain weed species for three years following restoration. Bailey refused to comply with the restoration order, and the United States brought this enforcement action.
Summary judgment was granted in favor of the United States, and Bailey was ordered to submit a proposed restoration plan. Bailey, 516 F.Supp.2d at 1021. After an unsuccessful appeal to this court, Bailey submitted a proposed plan. The United States objected and submitted its own proposed plan. The district court ordered Bailey to restore the site at his own expense to its previolation condition in compliance with the restoration order the Corps issued on October 22, 2001. Bailey, 556 F.Supp.2d at 983-84.
II. Issues on Appeal
Bailey raises the following arguments on appeal: (1) that the district court erred in applying Justice Kennedy’s opinion in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), to determine whether the Corps had jurisdiction over the site and that even if Justice Kennedy’s opinion controls, the Corps has failed to show that the wetland has a significant nexus to or is adjacent to the Lake of the Woods; (2) that the Corps’ denial of the after-the-fact permit and its restoration order are arbitrary and capricious; and (3) that the district court abused its discretion when it approved the restoration plan.
A. Summary Judgment and the Corps’ Jurisdiction under the Act
Congress enacted the Clean Water Act in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. The Act prohibits the discharge of any pollutant from any point source into navigable waters of the United States without a proper permit from the Secretary of the Army (through the Corps) or from the EPA. § § 1311, 1342, 1344. The Corps and the EPA share responsibility for implementing and enforcing the Act’s permit scheme for the discharge of pollutants into navigable waters, and the extent of the Corps’ jurisdiction has been hotly contested in cases around the country. Bailey concedes that the gravel and fill he placed on the site to build the road constitute pollutants and that those pollutants were discharged from a point source. Bailey also concedes that he did not obtain a permit from the Corps. Bailey challenges the Corps’ assertion of jurisdiction over the site, arguing that the land onto which he discharged the pollutants did not constitute “navigable waters” under the Act.
The Act defines navigable waters as “the waters of the United States, including the territorial seas.” § 1362(7). The regulations promulgated by the Corps define navigable waters as “navigable-in-fact” or “traditionally navigable” waters and the wetlands adjacent to such waters. 33 C.F.R. § 328.3(a).
1. The Supreme Court’s Opinions in Rapemos v. United States
In Rapanos v. United States, the Supreme Court addressed how the term “navigable waters” should be construed under the Act and the extent to which the term includes wetlands. All members of the Court agreed that “navigable waters” encompassed something more than traditional navigable-in-fact waters. 547 U.S. at 730-31, 126 S.Ct. 2208 (plurality opinion); 767, 126 S.Ct. 2208 (Kennedy, J., concurring); 788, 126 S.Ct. 2208 (Stevens, J., dissenting). There was no majority opinion, with five justices concluding that remand was necessary for consideration of whether the wetlands at issue in Rapanos were “navigable waters” covered by the Act and whether the EPA and the Corps had impermissibly extended their regulatory jurisdiction under the Act. Justice Scalia wrote the plurality opinion, joined by three other justices; Justice Kennedy wrote a concurring opinion; and Justice Stevens wrote the dissenting opinion, joined by three other justices.
The plurality opinion limits federal authority over “navigable waters” to “those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.” Id. at 742, 126 S.Ct. 2208. The plurality test requires two findings:
First, that the adjacent channel contains a ‘wate[r] of the United States,’ (ie., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.
Id.
In his concurring opinion, Justice Kennedy rejected these two requirements as “unduly dismissive of the interests asserted by the United States in these cases” and recognized that the rationale for the Act’s regulation of wetlands is the functions that wetlands perform in relation to the integrity of other waters — “functions such as pollutant trapping, flood control, and runoff storage.” Id. at 777, 779, 126 S.Ct. 2208. Accordingly, Justice Kennedy determined that the government’s jurisdiction under the Act extends to wetlands that “possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759, 126 S.Ct. 2208 (internal quotations omitted). “[WJetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of the covered waters more readily understood as ‘navigable.’ ” Id. at 780, 126 S.Ct. 2208. A wetland would not satisfy Justice Kennedy’s test if its effect on water quality were speculative or insubstantial. Id. Justice Kennedy also concluded that if the wetland is adjacent to navigable-in-fact waters, then the Corps “may rely on adjacency to establish its jurisdiction.” Id. at 782, 126 S.Ct. 2208.
The dissenters determined that to the extent the Act requires a significant nexus, the requirement “is categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” Id. at 807, 126 S.Ct. 2208. The dissent specifically noted that all four dissenters would uphold the Corps’ jurisdiction in cases that satisfy either the plurality’s test or Justice Kennedy’s. Id. at 810 n. 14, 126 S.Ct. 2208. “[I]n these and future cases, the United States may elect to prove jurisdiction under either test.” Id.
2. The Circuit Courts’ Application of Rapanos v. United States
When a majority of the Supreme Court agrees only on the outcome of a case and not on the grounds for that outcome, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotations omitted). The Supreme Court has recognized that applying a rule of law from its fragmented decisions is often more easily said than done. Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Nichols v. United States, 511 U.S. 738, 745-46, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). The Marks rule (the narrowest-grounds-rule) becomes problematic when “one opinion supporting the judgment does not fit entirely within a broader circle drawn by the others.” King v. Palmer, 950 F.2d 771, 782 (D.C.Cir.1991) (en banc). Because there is little overlap between the plurality’s and Justice Kennedy’s opinions, it is difficult to determine which holding is the narrowest.
Of those circuit courts that have considered Rapanos, most have concluded that Justice Kennedy’s opinion constitutes the narrowest holding. United States v. Robison, 505 F.3d 1208, 1221-22 (11th Cir.2007); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir.2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir.2006) (per curiam). Thus if a wetland meets the substantial nexus test, the federal authority has jurisdiction to regulate the wetland under the Act. Rapanos, 547 U.S. at 780, 126 S.Ct. 2208 (Kennedy, J., concurring). The Seventh and the Ninth have not foreclosed the possibility that the plurality’s test might apply in some cases and have limited their holdings to the facts of the cases before them. N. Cal. River Watch, 496 F.3d at 999-1000 (stating that Justice Kennedy’s concurrence provided “the controlling rule of law for our case” and that it is “the narrowest ground to which a majority of the Justices would assent if forced to choose in almost all cases”); Gerke Excavating, 464 F.3d at 725 (stating that Justice Kennedy’s test “must govern the further stages of this litigation”). The Seventh Circuit concluded that the narrowest opinion is the one least restrictive of federal authority to regulate and that “as a practical matter the Kennedy concurrence is the least common denominator.” Gerke Excavating, 464 F.3d at 725. Similarly, the Eleventh Circuit determined that the narrowest grounds is the “less far-reaching (i.e., less-restrictive of CWA jurisdiction)” and that “Justice Kennedy’s test, at least in wetlands cases such as Rapanos, will classify a water as ‘navigable’ more frequently than Justice Scalia’s test.” Robison, 505 F.3d at 1221.
The First Circuit has concluded that the Marks rule is unworkable as applied to Rapanos and has instead followed the dissent’s instruction to find jurisdiction if either the plurality’s test or Justice Kennedy’s test is met. United States v. Johnson, 467 F.3d 56, 66 (1st Cir.2006). The Sixth Circuit did not decide which test controls, concluding that jurisdiction in the case before it was proper under both the plurality’s and Justice Kennedy’s opinion. United States v. Cundiff, 555 F.3d 200, 210-13 (6th Cir.2009); see also United States v. Lucas, 516 F.3d 316, 327 (5th Cir.2008) (concluding that the evidence presented at trial was sufficient to support all three Rapanos standards and upholding guilty verdicts of defendants convicted under the Act).
Bailey and amicus Pacific Legal Foundation argue that the controlling jurisdictional test is stated in the plurality opinion, and thus the wetland must have a continuous surface connection with naviga^ble-in-fact water for the Corps to assert jurisdiction over the wetland. The United States urges us to adopt the district court’s holding that the Corps has jurisdiction over the wetland if either the plurality’s test or Justice Kennedy’s test is satisfied. We find Judge Lipez’s reasoning in Johnson to be persuasive, and thus we join the First Circuit in holding that the Corps has jurisdiction over wetlands that satisfy either the plurality or Justice Kennedy’s test.
3. Justice Kennedy’s Jurisdictional Test Is Met in this Case Because the Wetland Is Adjacent to Lake of the Woods
Justice Kennedy’s opinion holds that when a wetland is adjacent to the navigable-in-fact waters, then a significant nexus exists as a matter of law. Rapanos, 547 U.S. at 780, 126 S.Ct. 2208 (“As applied to wetlands adjacent to navigable-in-fact waters, the Corps’ conclusive standard for jurisdiction rests upon a reasonable inference of ecological interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone.”); see also N. Cal. River Watch, 496 F.3d at 1000 (noting that Justice Kennedy reaffirmed “that wetlands adjacent to navigable waterways are covered by the Act”). If the wetland is adjacent to non-navigable tributaries of navigable-in-fact waters, then the Corps must show that the wetland “significantly affect[s] the chemical, physical, and biological integrity” of the navigable-in-fact waters. Rapanos, 547 U.S. at 780, 126 S.Ct. 2208.
Justice Kennedy found the Corps’ definition of adjacent to be reasonable when applied to wetland adjacent to navigable-in-fact waters, 547 U.S. at 774, 126 S:Ct. 2208, and the Corps defines “adjacent” to mean “bordering, contiguous, or neighboring.” 33 C.F.R. § 328.3(c). The district court determined that the road was built on wetland adjacent to the Lake, which is undisputably a navigable-in-fact water, holding that “the Corps has presented evidence that the wetland on the Site extends to the edge of the Lake and is thus ‘bordering’ on or ‘contiguous’ to the Lake.” Bailey, 516 F.Supp.2d at 1007.
Bailey argues that the Corps has failed to meet its burden on summary judgment to show that the wetland at issue is adjacent to the Lake. Specifically, Bailey argues that the Corps has not shown that the fifteen-foot corridor closest to the Lake has wetland hydrology because it did not sample the soil saturation. Without wetland hydrology, the corridor cannot be deemed a wetland. Bailey also contends that a genuine issue of material fact exists as to whether the 100-foot corridor closest to the Lake is wetland because Gary Lockner, the County’s environmental services director, testified in a related proceeding that it is not. We review de novo the district court’s grant of summary judgment, affirming if there exist no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. In re Operation of Mo. River Sys. Litig., 421 F.3d 618, 628 (8th Cir.2005); Fed.R.Civ.P. 56(c). To determine whether these corridors constitute wetlands, we review the definition of wetlands and explain the Corps’ evaluation of the site.
The Corps defines wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b). The Corps conducts wetland delineations to determine the presence and extent of wetland, using the criteria set forth in the 1987 Corps of Engineers Wetlands Delineation Manual (1987 Manual) and Corps’ guidance interpreting the 1987 Manual.
In general, the 1987 Manual defines land as wetland when, under normal conditions: (1) the land is dominated by hydrophytic vegetation (plants that have the ability to grow, effectively compete, reproduce and/or persist in anaerobic soil conditions caused by inundated or saturated soil conditions); (2) the land has wetland hydrology (inundated or saturated to the surface for at least five percent of the growing season in most years); and (3) the land consists of hydric soils (soils formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part of the soil). The Corps uses defined field indicators to determine whether the land is wetland by investigating the plants, water, and soil.
To determine whether an area is dominated by hydrophytic vegetation, the Corps establishes at least one sample point within each plant community and surveys the herbaceous vegetation within a five-foot radius and the woody vegetation within a thirty-foot radius. The Corps consults a list of plant species published by the United States Fish and Wildlife Services, which assigns an indicator status to individual plant species reflecting their probability of occurrence in wetlands. Hydrophytic vegetation is present if greater than fifty percent of the dominant plant species are obligate wetland plants, facultative wetland plants, or facultative plants (ex-eluding facultative negative).
To determine whether the land has wetland hydrology, the Corps requires either one primary indicator, such as direct observation of soil saturation within twelve inches of the surface, or two secondary indicators, such as the FAC-neutral test and local soil survey data. The FAC-neutral test uses vegetation as a secondary indicator of hydrology. If obligate wetland plants and facultative wetland plants outnumber facultative upland plants and obligate upland plants, then the sample meets the FAC-neutral test and tests positive as a secondary indicator of hydrology. The rationale is that obligate wetland plants and facultative wetland plants occur in wetlands 67 to 99 percent of the time. Facultative plants, which occur in both wetlands and nonwetlands, are considered neutral.
An interdisciplinary team consisting of Steve Eggers, a senior ecologist with the Corps; Rod Heschke, a soil scientist with the United States Department of Agriculture; and Kelly Urbanek, a senior project manager and biologist with the Corps, conducted field investigations to delineate the wetland at the site. Consistent with the 1987 Manual, they established at least one sample point where a change in soils, hydrology, vegetation, or topography occurred, which resulted in a survey of forty-six sample points along established transects. They sampled vegetation, saturation levels, and soil types, concluding that the wetland encompassed the entire site except for approximately 1.31 acres.
According to the expert report prepared by Eggers and Heschke, there is no upland border along the site’s shoreline. Thirteen of the forty-six sample points were within 15 to 101 feet of the cut bank of the shoreline. All thirteen of these sample points were dominated by hydrophytes and had hydric soils. Eleven of the thirteen had saturated soils within twelve inches of the surface, a primary indicator of wetland hydrology. The twelfth met two secondary indicators of wetland hydrology, the FAC-neutral test and the local soil survey data. The thirteenth sample point lacked sufficient indicators of wetland hydrology. Eggers and Heschke concluded that the area surrounding the thirteenth point is drained by a preexisting ditch and does not constitute a wetland.
Although the Corps did not sample the soil saturation, a primary indicator of wetland hydrology, within the fifteen-foot corridor of land closest to the Lake, two secondary indicators — the FAC-neutral test and local soil survey data — were met. Eggers found that the FAC-neutral test was met in the fifteen-foot corridor based on his observation of the vegetation closest to the lakeshore. Eggers established three sample points at the fifteen-foot mark, and he surveyed the herbaceous vegetation within the five-foot radius of the sample points and the saplings and shrubs within the thirty-foot radius. Eggers observed no changes in vegetation between the Lake and the sample points at the fifteen-foot mark that would have necessitated further sampling and determined that the land closest to the Lake tests positive under the FAC-neutral test. The other secondary indicator was local soil survey data, which Heschke reviewed. Heschke concluded that the soils within fifteen feet of the Lake are hydric based on his observations of the site, the National Cooperative Soil Survey, and the prevalence of the hydric soils in the surrounding area. The Corps thus presented sufficient evidence to allow a factfinder to conclude that the fifteen-foot corridor closest to the Lake’s shoreline consisted of wetland hydrology.
Bailey failed to rebut the Corps’ evidence; he offered no expert evidence of the hydrological characteristics of the site, let alone the fifteen-foot corridor closest to the Lake. In his briefs and at oral argument, Bailey explained that the wetland at the site is a bowl shape, with the highest point being along the Lake. Bailey also argues that the drop between the Lake and the shore causes the water table to be drawn down, creating upland. Accordingly, his argument goes, the fifteen-foot strip of land is not wetland. Without competent evidence to contradict the government’s expert evidence that the corridor constitutes wetland, however, we cannot make that leap.
Bailey also contends that the 100-foot corridor closest to the Lake is not wetland, but he has again failed to submit evidence sufficient to create a genuine issue of material fact. As he did before the district court, Bailey relies heavily on the testimony from Gary Lockner, the County’s environmental services director, who opined in a state proceeding that the 100-foot corridor was upland and lacked wetland hydrology. Bailey brushed aside the district court’s ruling that the testimony was inadmissible hearsay, arguing that “in a motion for summary judgment all evidence can arguably be found to be hearsay.” It was Bailey’s responsibility to come forward with admissible evidence to survive summary judgment, yet Bailey has failed to overcome the barriers of the hearsay rule. See Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d 450, 460 (8th Cir.2009) (“Plamp fails to overcome the hearsay rule, and, thus, the evidence cannot defeat summary judgment.”); Sallis v. Univ. of Minn., 408 F.3d 470, 474 (8th Cir.2005) (“The nonmoving party must show by admissible evidence that specific facts remain which create a genuine issue for trial.”). Lockner’s inadmissible testimony cannot be used to defeat summary judgment.
Even if we were to accept the testimony, Lockner’s opinion remains unsupported and unreliable, for it was based on his assumption that the Lake had a drainage effect on the site. Lockner was not identified as an expert in this case, nor did he conduct a wetland delineation of the site. Instead, he apparently relied on the van Shilfgaarde equation to conclude that the 100-foot corridor lacked wetland hydrology. Bailey has presented no evidence that it is appropriate to use the van Shilfgaarde equation to estimate the drainage effect of a natural lake, and Eggers testified that he thought it would be inappropriate to do so. Eggers had used the equation to estimate the drainage effect of the man-made ditch on the site, and he had never heard of its being used to determine the drainage effect of a lake. We cannot assume, as Bailey has asked us to do, that the Lake has a drainage effect similar to a ditch.
The Corps has submitted competent and extensive evidence in this case to show that the site is situated in a wetland adjacent to navigable-in-fact waters, whereas Bailey has failed to present contrary evidence sufficient to create a genuine issue of material fact that the land closest to the Lake is not wetland.
4. No Abuse of Discretion in Admitting the Corps’ Expert Evidence
Bailey argues that Eggers’s expert opinion is not sufficiently reliable to meet the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), contending that the use of facultative plants as indicators of the presence of hydrophytic vegetation falsely indicates wetlands. We review the district court’s decision to admit expert testimony for abuse of discretion, according it substantial deference. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir.2006).
Federal Rule of Evidence 702 provides that an expert may testify if it “will assist the trier of fact to understand the evidence or determine a fact in issue.” The trial court serves as a gatekeeper to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Expert evidence is unreliable if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case. Marmo, 457 F.3d at 757.
We find no abuse of discretion in the district court’s consideration of the Corps’ expert evidence. Hydrophytic veg-
etation is one of three criteria the Corps uses to define wetlands. Even assuming that facultative plants falsely indicate wetland vegetation, the land must also consist of hydric soil and have wetland hydrology to be considered a wetland. Moreover, the Corps does not consider all facultative plants as indicators of hydrophytic vegetation; it excludes facultative negative plants, which indicate the drier end of the category. The Corps found obligate wetland plants and facultative wetland plants at the site, both of which are much more likely to grow in wetlands than nonwetlands. Accordingly, the district court properly rejected Bailey’s challenge to the reliability of the evidence.
B. Restoration Order
Bailey does not challenge the substance of the restoration order and the work required therein. Instead, he argues that the restoration order is arbitrary and capricious because the Corps should have approved his permit application and allowed him to mitigate the damage, rather than denying his permit application and ordering him to restore the site. As indicated earlier, however, Bailey did not appeal from the district court’s order affirming the Corps’ denial of his 404(b) application. Bailey, 2003 WL 21877903.
In his reply brief, Bailey frames this argument as stating a violation of the Constitution’s equal protection clause. Bailey argues that because the Corps issued a permit to the County for Sandy Shores Drive, the drive that Bailey’s road would have extended, the Corps should have done the same for him. The district court dismissed the argument, holding that Bailey’s equal protection claim failed because he did not show that he was similarly situated to the County or that the Corps’ disparate treatment of the two lacked a rational basis.
Bailey has failed to convince us that the Corps’ disparate treatment resulted in a violation of the equal protection clause. See Geach v. Chertoff, 444 F.3d 940, 945 (8th Cir.2006) (equal protection standard under the Fifth Amendment). Bailey and the County are not similarly situated. In 2001, the County applied for an after-the-fact permit for Sandy Shores Drive, which was built partly on wetland. At that time, the road had been in existence for at least a decade and served many long-time residents. Bailey, on the other hand, was notified by the Corps in 1993 — five years before he began building the road and polluting the wetland — that a permit was required. Bailey was encouraged to hire a consultant to delineate the property and assist in the permitting process and was notified before, during, and after the road’s construction that a permit was required. Given these circumstances, we conclude that the Corps had a rational basis to treat Bailey and the County differently.
C. Permanent Injunction To Enforce Restoration Order
Bailey argues that the district court should not have entered the restoration order because genuine issues of material fact existed regarding his ability to pay for the restoration, his knowledge that the property was a wetland, and whether the County was the appropriate defendant. Bailey asserts that he should have been allowed to go to trial on these issues and that we should apply a de novo standard of review to the restoration order.
Bailey fails to recognize that he is appealing from a permanent injunction, the entry of which we review for abuse of discretion. Roach v. Stouffer, 560 F.3d 860, 863 (8th Cir.2009); United States v. S. Inv. Co., 876 F.2d 606, 615 (8th Cir.1989); see also United States v. Cumberland Farms of Conn. Inc., 826 F.2d 1151, 1164 (1st Cir.1987) (reviewing for abuse of discretion district court’s issuance of an injunction to restore wetland to its previolation condition). “A district court abuses its discretion when it bases its decision on a legal error or a clearly erroneous finding of fact.” Roach, 560 F.3d at 863 (quoting Kennedy Bldg. Assocs. v. CBS Corp., 476 F.3d 530, 533 (8th Cir.2007)); cf. Sexton Cove Estates, 526 F.2d at 1301 (setting forth legal standard to be followed in considering environmental restoration, vacating partial restoration order, and remanding to the district court for further proceedings).
The Act authorizes district courts to issue injunctive relief for violations of § 1311(a). The district court analyzed the propriety of the permanent injunction and restoration order under the standard set forth in United States v. Sexton Cove Esates, Inc. Under the Sexton Cove Estates line of cases, the restoration plan must: “(1) be designed to confer maximum environmental benefits tempered with a touch of equity; (2) be practical and feasible from an environmental and engineering standpoint; (3) take into consideration the financial resources of defendants; and (4) include consideration of defendants’ objections.” S. Inv. Co., 876 F.2d at 615 (quotation and citation omitted). Bailey agrees with the government that the district court applied the correct legal standard, but he contends that further fact finding is required.
Bailey argues that there is no evidence in the record that he had the means to restore the wetland, but he has not argued that he is unable to pay for the work outlined in the restoration plan. At the summary judgment hearing, his attorney conceded that the cost of removing the road would be about the same as the cost of building it. Similarly, Bailey does not argue on appeal that he cannot afford the restoration, but rather contends that the district court should have required more evidence. If Bailey had wished to contest this factor, he should have submitted evidence to the district court. The finding that restoration was within Bailey’s financial means was not clearly erroneous.
Bailey also argues that he did not know that the site was wetland before or during the construction of the road. Civil liability under the Clean Water Act is strict, and the government was not required to show that Bailey knew that his act of building a road violated the Act. 33 U.S.C. § 1319(b); see also United States v. Sinskey, 119 F.3d 712, 715-16 (8th Cir.1997) (holding that the government did not have to prove that the defendant knew that his acts violated the Clean Water Act, but merely that he was aware of the conduct that resulted in the permit’s violation). Even assuming that knowledge was required, the record supports the district court’s finding that Bailey was well aware that he needed a Section 404 permit to place fill on the site. Again, we find no legal or factual error.
Finally, Bailey makes the equitable argument that the County should be required to pay for the restoration because (1) Bailey instructed LaValla to complete the road at the direction of the County; (2) the County was involved in the permitting process; and (3) the County owns the road. The district court examined each of these contentions, supporting its factual findings with citations to the record. The district court did not err in concluding that:
An examination of the record demonstrates that Bailey’s contentions are meritless. The undisputed fact is that, at all relevant times, Bailey and Bailey alone was the driving force behind the creation of the Road. It was Bailey’s decision to clear the sixty-six-foot wide roadway through the wetland and build the Road. It was Bailey who hired LaValla to perform the work. It was Bailey who told LaValla to resume the work after LaValla had been told to stop. And it was Bailey who stood to profit from the construction of the Road.
Bailey did have extensive interactions with the County, but the focus of those interactions was not on the Road’s compliance or lack of compliance with federal environmental standards — something that the County had no authority to address. Rather, the focus of Bailey’s interaction with the County was on getting the land platted and getting the County to take over responsibility for maintaining the Road. None of this makes the County responsible for Bailey’s violations of the CWA. At every step of the way, Bailey was well aware, as he had been since at least 1993, that he needed a Section 404 permit to place fill on the Site ....
It defies belief that Bailey, after being told by the Corps to stop work on the Road until he got a permit from the Corps, would resume work on the road without checking first with the Corps. Thus, even under the most charitable reading of the record, Bailey cannot claim ignorance of the fact that any additional work would be at his own risk.
Bailey, 516 F.Supp.2d at 1016, 1017. Bailey disputes the district court’s interpretation of the facts and its conclusion that Bailey was solely responsible for the violations of the Act. The district court, however, correctly applied the law and relied on no clearly erroneous fact to reject Bailey’s equitable argument. We find no abuse of discretion in the district court’s order issuing a permanent injunction ordering Bailey to restore the wetland to its previolation condition.
Conclusion
The district court properly found that the Corps had jurisdiction because the wetland at issue is adjacent to the Lake. We find no abuse of discretion in the district court’s evidentiary rulings or its order enjoining Bailey to comply with the restoration order. Bailey has advanced no substantive arguments for the reversal of the district court’s dismissal of his suit against the County based on his failure to assert a valid third-party claim. The judgments are affirmed.
. The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota.
. Bailey appealed from the Corps’ denial of the application for a Section 404 permit. Bailey v. United States Army Corps of Eng'rs, No. 02-639, 2003 WL 21877903 (D.Minn. Aug.7, 2003). The district court affirmed, and Bailey did not appeal from the order affirming the denial.
. Bailey argues that adjacency of wetland to navigable waters alone is insufficient to confer jurisdiction on the Corps under Justice Kennedy's test and that the Corps must prove that pollutants from the road reached the Lake. Bailey relies on an opinion from the Ninth Circuit that was later superseded. N. Cal. River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir.2006) (superseded). The superseding opinion deleted the precise language on which Bailey relies and clarified that adjacency to a navigable-in-fact water is sufficient to confer jurisdiction. N. Cal. River Watch, 496 F.3d at 1000. We do not find the superseded opinion to be persuasive authority-
. Obligate wetland plants are those that occur almost always in wetlands under natural conditions (greater than 99 percent probability), but which may also occur rarely in nonwetlands. Facultative wetland plants occur usually in wetlands (greater than 67 percent probability), but also occur in nonwetlands. Facultative plants occur in both wetlands and nonwetlands.
. The van Shilfgaarde equation is a method for calculating the lateral effect of a ditch on soil saturation. Eggers used the equation to estimate the lateral drainage effect of the man-made ditches on the site.
. Bailey also argued that the Corps' expert evidence was unreliable because the Corps did not consider the drainage effect of the Lake on the land closest to the Lake. We find this argument to be without merit. As discussed in the previous section, Bailey did not submit any credible evidence to support his contention that the Lake has a lateral drainage effect on the site.
. To the extent Bailey is challenging as unreasonable the Corps' interpretation of wetlands in the 1987 Manual, we note that Congress has mandated that the 1987 Manual be used until a final wetlands-delineation manual is adopted. Energy and Water Development Appropriations Act, 1993, Pub.L. No. 102-377, 106 Stat. 1315 (1992). We also defer to the 1987 Manual as the Corps’ interpretation of its own regulation, for an agency's interpretation of its own regulation "is entitled to deference 'unless plainly erroneous or inconsistent with the regulation.’ ” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 2538, 168 L.Ed.2d 467 (2007) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)).
. The government did not give a record citation for its assertion that Sandy Shores Drive was built in 1978 and extended in 1985-86. Bailey relies on the year the most recent Sandy Shores addition was platted' — 1990— citing a letter from the County's assistant zoning administrator. For purposes of summary judgment review, we will accept Bailey’s date.
. Bailey’s argument confuses the grant of summary judgment with the issuance of injunctive relief. We note that if summary judgment had been improvidently granted, we would have vacated the permanent injunction. Mulcahy v. Cheetah Learning LLC, 386 F.3d 849, 852 (8th Cir.2004) (citing Randolph v. Rodgers, 170 F.3d 850, 856 (8th Cir. 1999)).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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Justice Thomas
delivered the opinion of the Court.
Two Terms ago, in Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992), we held that the negative Commerce Clause prohibited Alabama from imposing a higher fee on the disposal in Alabama landfills of hazardous waste from other States than on the disposal of identical waste from Alabama. In reaching that conclusion, however, we left open the possibility that such a differential surcharge might be valid if based on the costs of disposing of waste from other States. Id., at 346, n. 9. Today, we must decide whether Oregon’s purportedly cost-based surcharge on the in-state disposal of solid waste generated in other States violates the Commerce Clause.
I
Like other States, Oregon comprehensively regulates the disposal of solid wastes within its borders. Respondent Oregon Department of Environmental Quality oversees the State’s regulatory scheme by developing and executing plans for the management, reduction, and recycling of solid wastes. To fund these and related activities, Oregon levies a wide range of fees on landfill operators. See, e. g., Ore. Rev. Stat. §§459.235(3), 459.310 (1991). In 1989, the Oregon Legislature imposed an additional fee, called a “surcharge,” on “every person who disposes of solid waste generated out-of-state in a disposal site or regional disposal site.” § 459.297(1) (effective Jan. 1, 1991). The amount of that surcharge was left to respondent Environmental Quality Commission (Commission) to determine through rulemaking, but the legislature did require that the resulting surcharge “be based on the costs to the State of Oregon and its political subdivisions of disposing of solid waste generated out-of-state which are not otherwise paid for” under specified statutes. § 459.298. At the conclusion of the rulemaking process, the Commission set the surcharge on out-of-state waste at $2.25 per ton. Ore. Admin. Rule 340-97-120(7) (Sept. 1993).
In conjunction with the out-of-state surcharge, the legislature imposed a fee on the in-state disposal of waste generated within Oregon. See Ore. Rev. Stat. §§459A.110(1), (5) (1991). The in-state fee, capped by statute at $0.85 per ton (originally $0.50 per ton), is considerably lower than the fee imposed on waste from other States. §§459A.110(5) and 459A.115. Subsequently, the legislature conditionally extended the $0.85 per ton fee to out-of-state waste, in addition to the $2.25 per ton surcharge, §459A. 110(6), with the proviso that if the surcharge survived judicial challenge, the $0.85 per ton fee would again be limited to in-state waste. 1991 Ore. Laws, ch. 385, §§ 91-92.
The anticipated court challenge was not long in coming. Petitioners, Oregon Waste Systems, Inc. (Oregon Waste), and Columbia Resource Company (CRC), joined by Gilliam County, Oregon, sought expedited review of the out-of-state surcharge in the Oregon Court of Appeals. Oregon Waste owns and operates a solid waste landfill in Gilliam County, at which it accepts for final disposal solid waste generated in Oregon and in other States. CRC, pursuant to a 20-year contract with Clark County, in neighboring Washington State, transports solid waste via barge from Clark County to a landfill in Morrow County, Oregon. Petitioners challenged the administrative rule establishing the out-of-state surcharge and its enabling statutes under both state law and the Commerce Clause of the United States Constitution. The Oregon Court of Appeals upheld the statutes and rule. Gilliam County v. Department of Environmental Quality, 114 Ore. App. 369, 837 P. 2d 965 (1992).
The State Supreme Court affirmed. Gilliam County v. Department of Environmental Quality of Oregon, 316 Ore. 99, 849 P. 2d 500 (1993). As to the Commerce Clause, the court recognized that the Oregon surcharge resembled the Alabama fee invalidated in Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992), in that both prescribed higher fees for the disposal of waste from other States. Nevertheless, the court viewed the similarity as superficial only. Despite the explicit reference in §459.297(1) to out-of-state waste’s geographic origin, the court reasoned, the Oregon surcharge is not facially discriminatory “[b]ecause of [its] express nexus to actual costs incurred [by state and local government].” 316 Ore., at 112, 849 P. 2d, at 508. That nexus distinguished Chemical Waste, supra, by rendering the surcharge a “compensatory fee,” which the court viewed as “prima facie reasonable,” that is to say, facially constitutional. 316 Ore., at 112, 849 P. 2d, at 508. The court réad our case law as invalidating compensatory fees only if they are “‘manifestly disproportionate to the services rendered.’” Ibid, (quoting Clark v. Paul Gray, Inc., 306 U. S. 583, 599 (1939)). Because Oregon law restricts the scope of judicial review in expedited proceedings to deciding the facial legality of administrative rules and the statutes underlying them, Ore. Rev. Stat. §183.400 (1991), the Oregon court deemed itself precluded from deciding the factual question whether the surcharge on out-of-state waste was disproportionate. 316 Ore., at 112, 849 P. 2d, at 508.
We granted certiorari, 509 U. S. 953 (1993), because the decision below conflicted with a recent decision of the United States Court of Appeals for the Seventh Circuit. We now reverse.
II
The Commerce Clause provides that “[t]he Congress shall have Power . . . [t]o regulate Commerce . . . among the several States.” Art. I, §8, cl. 3. Though phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a “negative” aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce. See, e. g., Wyoming v. Oklahoma, 502 U. S. 437, 454 (1992); Welton v. Missouri, 91 U. S. 275 (1876). The Framers granted Congress plenary authority over interstate commerce in “the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” Hughes v. Oklahoma, 441 U. S. 322, 325-326 (1979). See generally The Federalist No. 42 (J. Madison). “This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy,... has as its corollary that the states are not separable economic units.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 537-538 (1949).
Consistent with these principles, we have held that the first step in analyzing any law subject to judicial scrutiny under the negative Commerce Clause is to determine whether it “regulates evenhandedly with only ‘incidental’ effects on interstate commerce, or discriminates against interstate commerce.” Hughes, supra, at 336. See also Chemical Waste, 504 U. S., at 340-341. As we use the term here, “discrimination” simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter. If a restriction on commerce is discriminatory, it is virtually per se invalid. Id., at 344, n. 6. See also Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978). By contrast, nondiscriminatory regulations that have only incidental effects on interstate commerce are valid unless “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970).
In Chemical Waste, we easily found Alabama’s surcharge on hazardous waste from other States to be facially discriminatory because it imposed a higher fee on the disposal of out-of-state waste than on the disposal of identical in-state waste. 504 U. S., at 342. We deem it equally obvious here that Oregon’s $2.25 per ton surcharge is discriminatory on its face. The surcharge subjects waste from other States to a fee almost three times greater than the $0.85 per ton charge imposed on solid in-state waste. The statutory determinant for which fee applies to any particular shipment of solid waste to an Oregon landfill is whether or not the waste was “generated out-of-state.” Ore. Rev. Stat. §459.297(1) (1991). It is well established, however, that a law is discriminatory if it “ ‘tax[es] a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.’ ” Chemical Waste, supra, at 342 (quoting Armco Inc. v. Hardesty, 467 U. S. 638, 642 (1984)). See also American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 286 (1987).
Respondents argue, and the Oregon Supreme Court held, that the statutory nexus between the surcharge and “the [otherwise uncompensated] costs to the State of Oregon and its political subdivisions of disposing of solid waste generated out-of-state,” Ore. Rev. Stat. §459.298 (1991), necessarily precludes a finding that the surcharge is discriminatory. We find respondents’ narrow focus on Oregon’s compensatory aim to be foreclosed by our precedents. As we reiterated in Chemical Waste, the purpose of, or justification for, a law has no bearing on whether it is facially discriminatory. See 504 U. S., at 340-341. See also Philadelphia, supra, at 626. Consequently, even if the surcharge merely recoups the costs of disposing of out-of-state waste in Oregon, the fact remains that the differential charge favors shippers of Oregon waste over their counterparts handling waste generated in other States. In making that geographic distinction, the surcharge patently discriminates against interstate commerce.
HI
Because the Oregon surcharge is discriminatory, the virtually per se rule of invalidity provides the proper legal standard here, not the Pike balancing test. As a result, the surcharge must be invalidated unless respondents can “sho[w] that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988). See also Chemical Waste, supra, at 342-343. Our cases require that justifications for discriminatory restrictions on commerce pass the “strictest scrutiny.” Hughes, 441 U. S., at 337. The State’s burden of justification is so heavy that “facial discrimination by itself may be a fatal defect.” Ibid. See also Westinghouse Elec. Corp. v. Tully, 466 U. S. 388, 406-407 (1984); Maryland v. Louisiana, 451 U. S. 725, 759-760 (1981).
At the outset, we note two justifications that respondents have not presented. No claim has been made that the disposal of waste from other States imposes higher costs on Oregon and its political subdivisions than the disposal of instate waste. Also, respondents have not offered any safety or health reason unique to nonhazardous waste from other States for discouraging the flow of such waste into Oregon. Cf. Maine v. Taylor, 477 U. S. 131 (1986) (upholding ban on importation of out-of-state baitfish into Maine because such baitfish were subject to parasites completely foreign to Maine baitfish). Consequently, respondents must come forward with other legitimate reasons to subject waste from other States to a higher charge than is levied against waste from Oregon.
Respondents offer two such reasons, each of which we address below.
A
Respondents’ principal defense of the higher surcharge on out-of-state waste is that it is a “compensatory tax” necessary to make shippers of such waste pay their “fair share” of the costs imposed on Oregon by the disposal of their waste in the State. In Chemical Waste we noted the possibility that such an argument might justify a discriminatory surcharge or tax on out-of-state waste. See 504 U. S., at 346, n. 9. In making that observation, we implicitly recognized the settled principle that interstate commerce may be made to “‘pay its way.’” Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 281 (1977). See also Maryland, supra, at 754. “It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden[sj.” Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 254 (1938). See also Henneford v. Silas Mason Co., 300 U. S. 577 (1937). Nevertheless, one of the central purposes of the Clause was to prevent States from “exacting more than a just share” from interstate commerce. Department of Revenue of Wash. v. Association of Wash. Stevedoring Cos., 435 U. S. 734, 748 (1978) (emphasis added). See also Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 462 (1959).
At least since our decision in Hinson v. Lott, 8 Wall. 148 (1869), these principles have found expression in the “compensatory” or “complementary” tax doctrine. Though our cases sometimes discuss the concept of the compensatory tax as if it were a doctrine unto itself, it is merely a specific way of justifying a facially discriminatory tax as achieving a legitimate local purpose that cannot be achieved through nondiscriminatory means. See Chemical Waste, supra, at 346, n. 9 (referring to the compensatory tax doctrine as a “justification]” for a facially discriminatory tax). Under that doctrine, a facially discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and “substantially similar” tax on intrastate commerce does not offend the negative Commerce Clause. Maryland, supra, at 758-759. See also Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 242-243 (1987); Armco, 467 U. S., at 643.
To justify a charge on interstate commerce as a compensatory tax, a State must, as a threshold matter, “identify]... the [intrastate tax] burden for which the State is attempting to compensate.” Maryland, supra, at 758. Once that burden has been identified, the tax on interstate commerce must be shown roughly to approximate — but not exceed— the amount of the tax on intrastate commerce. See, e. g., Alaska v. Arctic Maid, 366 U. S. 199, 204-205 (1961). Finally, the events on which the interstate and intrastate taxes are imposed must be “substantially equivalent”; that is, they must be sufficiently similar in substance to serve as mutually exclusive “prox[ies]” for each other. Armco, supra, at 643. As Justice Cardozo explained for the Court in Henneford, under a truly compensatory tax scheme “the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates. The one pays upon one activity or incident, and the other upon another, but the sum is the same when the reckoning is closed.” 300 U. S., at 584.
Although it is often no mean feat to determine whether a challenged tax is a compensatory tax, we have little difficulty concluding that the Oregon surcharge is not such a tax. Oregon does not impose a specific charge of at least $2.25 per ton on shippers of waste generated in Oregon, for which the out-of-state surcharge might be considered compensatory. In fact, the only analogous charge on the disposal of Oregon waste is $0.85 per ton, approximately one-third of the amount imposed on waste from other States. See Ore. Rev. Stat. §§459A. 110(5), 459A.115 (1991). Respondents’ failure to identify a specific charge on intrastate commerce equal to or exceeding the surcharge is fatal to their claim. See Maryland, 451 U. S., at 758.
Respondents argue that, despite the absence of a specific $2.25 per ton charge on in-state waste, intrastate commerce does pay its share of the costs underlying the surcharge through general taxation. Whether or not that is true is difficult to determine, as “[general] tax payments are received for the general purposes of the [government], and are, upon proper receipt, lost in the general revenues.” Flast v. Cohen, 392 U. S. 83, 128 (1968) (Harlan, J., dissenting). Even assuming, however, that various other means of general taxation, such as income taxes, could serve as an identifiable intrastate burden roughly equivalent to the out-of-state surcharge, respondents’ compensatory tax argument fails because the in-state and out-of-state levies are not imposed on substantially equivalent events.
The prototypical example of substantially equivalent taxable events is the sale and use of articles of trade. See Henneford, supra. In fact, use taxes on products purchased out of state are the only taxes we have upheld in recent memory under the compensatory tax doctrine. See ibid. Typifying our recent reluctance to recognize new categories of compensatory taxes is Armco, where we held that manufacturing and wholesaling are not substantially equivalent events. 467 U. S., at 643. In our view, earning income and disposing of waste at Oregon landfills are even less equivalent than manufacturing and wholesaling. Indeed, the very fact that in-state shippers of out-of-state waste, such as Oregon Waste, are charged the out-of-state surcharge even though they pay Oregon income taxes refutes respondents’ argument that the respective taxable events are substantially equivalent. See ibid. We conclude that, far from being substantially equivalent, taxes on earning income and utilizing Oregon landfills are “entirely different kind[s] of tax[es].” Washington v. United States, 460 U. S. 536, 546, n. 11 (1983). We are no more inclined here than we were in Scheiner to “plunge . . . into the morass of weighing comparative tax burdens” by comparing taxes on dissimilar events. 483 U. S., at 289 (internal quotation marks omitted).
B
Respondents’ final argument is that Oregon has an interest in spreading the costs of the in-state disposal of Oregon waste to all Oregonians. That is, because all citizens of Oregon benefit from the proper in-state disposal of waste from Oregon, respondents claim it is only proper for Oregon to require them to bear more of the costs of disposing of such waste in the State through a higher general tax burden. At the same time, however, Oregon citizens should not be required to bear the costs of disposing of out-of-state waste, respondents claim. The necessary result of that limited cost shifting is to require shippers of out-of-state waste to bear the full costs of in-state disposal, but to permit shippers of Oregon waste to bear less than the full cost.
We fail to perceive any distinction between respondents’ contention and a claim that the State has an interest in reducing the costs of handling in-state waste. Our cases condemn as illegitimate, however, any governmental interest that is not “unrelated to economic protectionism,” Wyoming, 502 U. S., at 454, and regulating interstate commerce in such a way as to give those who handle domestic articles of commerce a cost advantage over their competitors handling similar items produced elsewhere constitutes such protectionism. See New Energy, 486 U. S., at 275. To give controlling effect to respondents’ characterization of Oregon’s tax scheme as seemingly benign cost spreading would require us to overlook the fact that the scheme necessarily incorporates a protectionist objective as well. Cf. Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 273 (1984) (rejecting Hawaii’s attempt to justify a discriminatory tax exemption for local liquor producers as conferring a benefit on them, as opposed to burdening out-of-state liquor producers).
Respondents counter that if Oregon is engaged in any form of protectionism, it is “resource protectionism,” not economic protectionism. It is true that by discouraging the flow of out-of-state waste into Oregon landfills, the higher surcharge on waste from other States conserves more space in those landfills for waste generated in Oregon. Recharacterizing the surcharge as resource protectionism hardly advances respondents’ cause, however. Even assuming that landfill space is a “natural resource,” “a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders.” Philadelphia, 437 U. S., at 627. As we held more than a century ago, “if the State, under the guise of exerting its police powers, should [impose a burden] . . . applicable solely to articles [of commerce]... produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in conflict with the Constitution of the United States.” Guy v. Baltimore, 100 U. S. 434, 443 (1880).
Our decision in Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982), is not to the contrary. There we held that a State may grant a “limited preference” for its citizens in the utilization of ground water. Id., at 956. That holding was premised on several different factors tied to the simple fact of life that “water, unlike other natural resources, is essential for human survival.” Id., at 952. Sporhase therefore provides no support for respondents’ position that States may erect a financial barrier to the flow of waste from other States into Oregon landfills. See Fort Gratiot, 504 U. S., at 364-365, and n. 6. However serious the shortage in landfill space may be, post, at 108, “[n]o State may attempt to isolate itself from a problem common to the several States by raising barriers to the free flow of interstate trade.” Chemical Waste, 504 U. S., at 339-340, and 346, n. 9.
IV
We recognize that the States have broad discretion to configure their systems of taxation as they deem appropriate. See, e. g., Commonwealth Edison Co. v. Montana, 453 U. S. 609, 622-623 (1981); Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318, 336-337 (1977). All we intimate here is that their discretion in this regard, as in all others, is bounded by any relevant limitations of the Federal Constitution, in these cases the negative Commerce Clause. Because respondents have offered no legitimate reason to subject waste generated in other States to a discriminatory surcharge approximately three times as high as that imposed on waste generated in Oregon, the surcharge is facially invalid under the negative Commerce Clause. Accordingly, the judgment of the Oregon Supreme Court is reversed, and the cases are remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Oregon defines “solid wastes” as “all putrescible and nonputrescible wastes, including but not limited to garbage, rubbish, refuse, ashes, waste paper and cardboard; sewage sludge, septic tank and cesspool pumpings or other sludge; commercial, industrial, demolition and construction wastes; discarded or abandoned vehicles or parts thereof; discarded home and industrial appliances; manure, vegetable or animal solid and semisolid wastes, dead animals, infectious waste ... and other wastes.” Ore. Rev. Stat. §459.005(27) (1991). Hazardous wastes are not considered solid wastes. § 459.005(27)(a).
As a result, shippers of out-of-state solid waste currently are being charged $3.10 per ton to dispose of such waste in Oregon landfills, as compared to the $0.85 per ton fee charged to dispose of Oregon waste in those same landfills. We refer hereinafter only to the $2.25 surcharge, because the $0.85 per ton fee, which will be refunded to shippers of out-of-state waste if the surcharge is upheld, 1991 Ore. Laws, ch. 385, §92, is not challenged here.
Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d 1267 (1992), cert. denied, 506 U. S. 1053 (1993).
The dissent argues that the $2.25 per ton surcharge is so minimal in amount that it cannot be considered discriminatory, even though the surcharge expressly applies only to waste generated in other States. Post, at 115. The dissent does not attempt to reconcile that novel understanding of discrimination with our precedents, which clearly establish that the degree of a differential burden or charge on interstate commerce “measures only the extent of the discrimination” and “is of no relevance to the determination whether a State has discriminated against interstate commerce.” Wyoming v. Oklahoma, 502 U. S. 437, 455 (1992). See also, e. g., Maryland v. Louisiana, 451 U. S. 725, 760 (1981) (“We need not know how unequal [a] [t]ax is before concluding that it... discriminates”).
In fact, the Commission fixed the $2.25 per ton cost of disposing of solid waste in Oregon landfills without reference to the origin of the waste, 3 Record 665-690, and Oregon’s economic consultant recognized that the per ton costs are the same for both in-state and out-of-state waste. Id., at 731-732, 744. Of course, if out-of-state waste did impose higher costs on Oregon than in-state waste, Oregon could recover the increased cost through a differential charge on out-of-state waste, for then there would be a “reason, apart from its origin, why solid waste coming from outside the [State] should be treated differently.” Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353, 361 (1992). Cf. Mullaney v. Anderson, 342 U. S. 415, 417 (1952); Toomer v. Witsell, 334 U. S. 385, 399 (1948).
The Oregon Supreme Court, though terming the out-of-state surcharge a “compensatory fee,” relied for its legal standard on our “user fee” cases. See 316 Ore. 99, 112, 849 P. 2d 500, 508 (1993) (citing, for example, Evansville-Vanderbwgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707 (1972), and Clark v. Paul Gray, Inc., 306 U. S. 583 (1939)). The compensatory tax cases cited in the text, rather than the user fee cases, are controlling here, as the latter apply only to “charge[s] imposed by the State for the use of state-owned or state-provided transportation or other facilities and services.” Commonwealth Edison Co. v. Montana, 453 U. S. 609, 621 (1981). Because it is undisputed that, as in Chemical Waste, the landfills in question are owned by private entities, including Oregon Waste, the out-of-state surcharge is plainly not a user fee. Nevertheless, even if the surcharge could somehow be viewed as a user fee, it could not be sustained as such, given that it discriminates against interstate commerce. See Evansville, supra, at 717; Guy v. Baltimore, 100 U. S. 434 (1880). Cf. Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 369 (1994) (A user fee is valid only to the extent it “does not discriminate against interstate commerce”).
We would note that respondents, like the dissent, post, at 112, ignore the fact that shippers of waste from other States in all likelihood pay income taxes in other States, a portion of which might well be used to pay for waste reduction activities in those States.
Furthermore, permitting discriminatory taxes on interstate commerce to compensate for charges purportedly included in general forms of intrastate taxation “would allow a state to tax interstate commerce more heavily than in-state commerce anytime the entities involved in interstate commerce happened to use facilities supported by general state tax funds.” Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d, at 1284. We decline respondents’ invitation to open such an expansive loophole in our carefully confined compensatory tax jurisprudence.
We recognize that “[t]he Commerce Clause does not prohibit all state action designed to give its residents an advantage in the marketplace, but only action of that description in connection with the State’s regulation of interstate commerce.” New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988). Cf. Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869, 877, n. 6 (1985). Here, as in New Energy, we confront a patently discriminatory law that is plainly connected to the regulation of interstate commerce. We therefore have no occasion to decide whether Oregon could validly accomplish its limited cost spreading through the “market participant” doctrine, Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 806-810 (1976), or other means unrelated to any regulation of interstate commerce.
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Chief Justice Rehnquist,
with whom Justice Black-mun joins,
dissenting.
Landfill space evaporates as solid waste accumulates. State and local governments expend financial and political capital to develop trash control systems that are efficient, lawful, and protective of the environment. The State of Oregon responsibly attempted to address its solid waste disposal problem through enactment of a comprehensive regulatory scheme for the management, disposal, reduction, and recycling of solid waste. For this Oregon should be applauded. The regulatory scheme included a fee charged on out-of-state solid waste. The Oregon Legislature directed the Environmental Quality Commission to determine the appropriate surcharge “based on the costs ... of disposing of solid waste generated out-of-state.” Ore. Rev. Stat. §459.298 (1991). The Commission arrived at a surcharge of $2.25 per ton, compared to the $0.85 per ton charged on in-state solid waste. Ore. Admin. Rule 340-97-110(3) (Sept. 1993). The surcharge works out to an increase of about $0.14 per week for the typical out-of-state solid waste producer. Brief for Respondents 26-27, n. 16. This seems a small price to pay for the right to deposit your “garbage, rubbish, refuse ...; sewage sludge, septic tank and cesspool pumpings or other sludge; . . . manure, . . . dead animals, [and] infectious waste” on your neighbors. Ore. Rev. Stat. §459.005(27) (1991).
Nearly 20 years ago, we held that a State cannot ban all out-of-state waste disposal in protecting themselves from hazardous or noxious materials brought across the State’s borders. Philadelphia v. New Jersey, 437 U. S. 617 (1978). Two Terms ago in Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992), in striking down the State of Alabama’s $72 per ton fee on the disposal of out-of-state hazardous waste, the Court left open the possibility that such a fee could be valid if based on the costs of disposing of waste from other States. Id., at 346, n. 9. Once again, however, as in Philadelphia and Chemical Waste Management, the Court further cranks the dormant Commerce Clause ratchet against the States by striking down such cost-based fees, and by so doing ties the hands of the States in addressing the vexing national problem of solid waste disposal. I dissent.
Americans generated nearly 196 million tons of municipal solid waste in 1990, an increase from 128 million tons in 1975. See U. S. Environmental Protection Agency, Characterization of Municipal Solid Waste in the United States: 1992 Update, p. ES-3. Under current projections, Americans will produce 222 million tons of garbage in the year 2000. Ibid. Generating solid waste has never been a problem. Finding environmentally safe disposal sites has. By 1991, it was estimated that 45 percent of all solid waste landfills in the Nation had reached capacity. 56 Fed. Reg. 50980 (1991). Nevertheless, the Court stubbornly refuses to acknowledge that a clean and healthy environment, unthreatened by the improper disposal of solid waste, is the commodity really at issue in cases such as these, see, e. g., Chemical Waste Management, supra, at 350 (Rehnquist, C. J., dissenting), and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353, 368 (1992) (Rehnquist, C. J., dissenting).
Notwithstanding the identified shortage of landfill space in the Nation, the Court notes that it has “little difficulty,” ante, at 104, concluding that the Oregon surcharge does not operate as a compensatory tax, designed to offset the loss of available landfill space in the State caused by the influx of out-of-state waste. The Court reaches this nonchalant conclusion because the State has failed “to identify a specific charge on intrastate commerce equal to or exceeding the surcharge.” Ibid, (emphasis added). The Court’s myopic focus on “differential fees” ignores the fact that in-state producers of solid waste support the Oregon regulatory program through state income taxes and by paying, indirectly, the numerous fees imposed on landfill operators and the dumping fee on in-state waste. Ore. Rev. Stat. §459.005 et seq. (1991).
We confirmed in Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982), that a State may enact a comprehensive regulatory system to address an environmental problem or a threat to natural resources within the confines of the Commerce Clause. In the context of threatened ground water depletion, we stated that “[o]bviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State.” Id., at 955-956. The same point could be made about a “clean and safe environment” in these cases: Where a State imposes restrictions on the ability of its own citizens to dispose of solid waste in an effort to promote a “clean and safe environment,” it is not discriminating against interstate commerce by preventing the uncontrolled transfer of out-of-state solid waste into the State.
The availability of safe landfill disposal sites in Oregon did not occur by chance. Through its regulatory scheme, the State of Oregon inspects landfill sites, monitors waste streams, promotes recycling, and imposes an $0.85 per ton disposal fee on in-state waste, Ore. Rev. Stat. § 459.005 et seq. (1991), all in an effort to curb the threat that its residents will harm the environment and create health and safety problems through excessive and unmonitored solid waste disposal. Depletion of a clean and safe environment will follow if Oregon must accept out-of-state waste at its landfills without a sharing of the disposal costs. The Commerce Clause does not require a State to abide this outcome where the “natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage.” Sporhase, supra, at 957. A shortage of available landfill space is upon us, 56 Fed. Reg. 50980 (1991), and with it comes the accompanying health and safety hazards flowing from the improper disposal of solid wastes. We have long acknowledged a distinction between economic protectionism and health and safety regulation promulgated by Oregon. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 533 (1949).
Far from neutralizing the economic situation for Oregon producers and out-of-state producers, the Court’s analysis turns the Commerce Clause on its head. Oregon’s neighbors will operate under a competitive advantage against their Oregon counterparts as they can now produce solid waste with reckless abandon and avoid paying concomitant state taxes to develop new landfills and clean up retired landfill sites. While I understand that solid waste is an article of commerce, Philadelphia, 437 U. S., at 622-623, it is not a commodity sold in the marketplace; rather it is disposed of at a cost to the State. Petitioners do not buy garbage to put in their landfills; solid waste producers pay petitioners to take their waste. Oregon solid waste producers do not compete with out-of-state businesses in the sale of solid waste. Thus, the fees do not alter the price of a product that is competing with other products for common purchasers. If anything, striking down the fees works to the disadvantage of Oregon businesses. They alone will have to pay the “nondisposal” fees associated with solid waste: landfill siting, landfill cleanup, insurance to cover environmental accidents, and transportation improvement costs associated with out-of-state waste being shipped into the State. While we once recognized that “ ‘the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies,’” id., at 621, n. 4, quoting 42 U. S. C. § 6901(a)(4) (1976 ed.), the Court today leaves States with only two options: become a dumper and ship as much waste as possible to a less populated State, or become a dumpee, and stoically accept waste from more densely populated States.
The Court asserts that the State has not offered “any safety or health reason[s]” for discouraging the flow of solid waste into Oregon. Ante, at 101. I disagree. The availability of environmentally sound landfill space and the proper disposal of solid waste strike me as justifiable “safety or health” rationales for the fee. As far back as the turn of the century, the Court recognized that control over the collection and disposal of solid waste was a legitimate, nonarbitrary exercise of police powers to protect health and safety. See, e. g., California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306 (1905) (holding that exclusive privilege to one company to dispose of the garbage in the city and county of San Francisco was not void as taking the property of householders for public use without compensation); and Gardner v. Michigan, 199 U. S. 325 (1905) (holding that property rights of individuals must be subordinated to the general good and if the owner of garbage suffers any loss by its destruction he is compensated therefor in the common benefit secured by the regulation requiring that all garbage be destroyed).
In exercising its legitimate police powers in regulating solid waste disposal, Oregon is not “needlessly obstructing] interstate trade or attempting] to place itself in a position of economic isolation.” Maine v. Taylor, All U. S. 131, 151 (1986) (internal quotation marks omitted) (upholding Maine’s ban on the importation of live baitfish on the ground that it serves the legitimate governmental interest in protecting Maine’s indigenous fish population from parasites prevalent in out-of-state baitfish). Quite to the contrary, Oregon accepts out-of-state waste as part of its comprehensive solid waste regulatory program and it “retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources.” Ibid. Moreover, Congress also has recognized taxes as an effective method of discouraging consumption of natural resources in other contexts. Cf. 26 U. S. C. §§4681, 4682 (1988 ed., Supp. IV) (tax on ozone-depleting chemicals); 26 U. S. C. § 4064 (1988 ed. and Supp. IV) (gas guzzler excise tax). Nothing should change the analysis when the natural resource — landfill space — was created or regulated by the State in the first place.
In its sweeping ruling, the Court makes no distinction between publicly and privately owned landfills. It rejects the argument that our “user fee” cases apply in this context since the landfills owned by the petitioners are private and our user fee analysis applies only to “ ‘charge[s] imposed by the State for the use of a state-owned or state-provided transportation or other facilities and services.’” Ante, at 103, n. 6, quoting Commonwealth Edison Co. v. Montana, 453 U. S. 609, 621 (1981). Rather than stopping there, however, the majority goes on to note that even if the Oregon surcharge could be viewed as a user fee, “it could not be sustained as such, given that it discriminates against interstate commerce.” Ante, at 104, n. 6, citing Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707, 717 (1972). There is no need to make this dubious assertion. We specifically left unanswered the question whether a state or local government could regulate disposal of out-of-state solid waste at landfills owned by the government in Philadelphia, supra, at 627, n. 6.'
We will undoubtedly be faced with this question directly in the future as roughly 80 percent of landfills receiving municipal solid wáste in the United States are state or locally owned. U. S. Environmental Protection Agency, Resource Conservation and Recovery Act, Subtitle D Study: Phase 1 Report, p. 4-7 (Oct. 1986) (Table 4-2). We noted in South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82, 93 (1984): “[I]f a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities.” See also Wyoming v. Oklahoma, 502 U. S. 437, 459 (1992). Similarly, if the State owned and operated a park or recreational facility, it would be allowed to charge differential fees for in-state and out-of-state users of the resource. See, e. g., Baldwin v. Fish and Game Comm’n of Mont., 436 U. S. 371 (1978) (upholding Montana’s higher nonresident elk hunting license fees to compensate the State for conservation expenditures from taxes which only residents pay). More recently we upheld such differential fees under a reasonableness standard in Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355 (1994), despite the fact that the fees were not precisely tied to the costs of the services provided at the publicly owned airport. We relied on our Commerce Clause analysis from Evansville, supra. We stated in Evansville:
“At least so long as the toll is based on some fair approximation of use or privilege for use, . . . and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users.” Id., at 716-717.
I think that the $2.25 per ton fee that Oregon imposes on out-of-state waste works out to a similar “fair approximation” of the privilege to use its landfills. Even the Court concedes that our precedents do not demand anything beyond “substantial] equivalency]” between the fees charged on in-state and out-of-state waste. Ante, at 103 (internal quotation marks omitted). The $0.14 per week fee imposed on out-of-state waste producers qualifies as “substantially equivalent” under the reasonableness standard of Northwest Airlines and Evansville.
The Court begrudgingly concedes that interstate commerce may be made to “pay its way,” ante, at 102 (internal quotation marks omitted), yet finds Oregon’s nominal surcharge to exact more than a “ ‘just share’ ” from interstate commerce, ibid. It escapes me how an additional $0.14 per week cost for the average solid waste producer constitutes anything but the type of “incidental effects on interstate commerce” endorsed by the majority. Ante, at 99. Evenhanded regulations imposing such incidental effects on interstate commerce must be upheld unless “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). If the majority finds $0.14 per week beyond the pale, one is left to wonder what the Court possibly could have contemplated when it stated:
“ ‘[I]n the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.’” Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 350 (1977), quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 767 (1945).
Surely $0.14 per week falls within even the most crabbed definition of “affect” or “regulate.” Today the majority has rendered this “residuum of power” a nullity.
The State of Oregon is not prohibiting the export of solid waste from neighboring States; it is only asking that those neighbors pay their fair share for the use of Oregon landfill sites. I see nothing in the Commerce Clause that compels less densely populated States to serve as the low-cost dumping grounds for their neighbors, suffering the attendant risks that solid waste landfills present. The Court, deciding otherwise, further limits the dwindling options available to States as they contend with the environmental, health, safety, and political challenges posed by the problem of solid waste disposal in modern society.
For the foregoing reasons, I respectfully dissent.
The surcharge is composed of the following identified costs: $0.58— statewide activities for reducing environmental risks and improving solid waste management; $0.66 — reimbursements to the State for tax credits and other public subsidies; $0.05 — solid waste reduction activities related to the review and certification of waste reduction and recycling plans; $0.72 — increased environmental liability; $0.20 — lost disposal capacity; $0.03 — publicly supported infrastructure; and $0.01 — nuisance impacts from transportation. Pet. for Cert, in No. 93-108, p. 4.
The $2.25 per ton fee imposed on out-of-state waste exceeds the $0.85 per ton fee imposed on in-state waste by $1.40 per ton. One ton equals 2,000 pounds. Assuming that the hypothetical nonresident generates 200 pounds of garbage per month (1/10 of a ton), the nonresident’s garbage bill would increase by $0.14 per month.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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ORDER
The opinion issued in this appeal is amended as follows:
On page 6 of the slip opinion, replace Rosales v. United States, 275 F. App’x 1 (D.C. Cir. 2008), with Rosales v. United States, 73 F. App’x 913 (9th Cir. 2003). With that amendment, Plaintiffs-Appellants’. petition for panel rehearing is DENIED. The petition for rehearing en banc remains pending..
CHRISTEN, Circuit Judge:
OPINION
This case is about an Indian gaming casino in Jamul, California, a rural community close to San Diego, California. The Jamul Indian Village, a federally recognized Indian tribe and a non-party to this suit (“the Tribe”), is building a casino in Jamul. A number of individuals and organizations, including the Jamul Action Committee, the Jamul Community Church, and four residents of rural Jamul (collectively “JAC”), opposes the casino. This lawsuit is JAC’s most recent effort to stop its construction. See, e.g., Rosales v. United States, 73 F. App’x 913 (9th Cir. 2003). JAC contends that the’ National Indian Gaming Commission (“NIGC”) violated the National Environmental Policy Act (“NEPA”) when it approved the Tribe’s gaming ordinance (“GO”) without first conducting a NEPA environmental review. JAC petitioned the district court for a writ of mandamus under the Administrative Procedure Act (“APA”), arguing that the NEPA environmental reviéw was “agency action unlawfully withheld.” 5 U.S.C. § 706(1). The district court denied relief. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and'we affirm.
I.
A.
This appeal turns on the interplay between two federal statutes:' the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, and NEPA, 42 U.S.C. §§ 4321-4370h,
Congress enacted IGRA to regulate gaming on Indian lands. Big Lagoon Rancheria v. California, 789 F.3d 947, 949 (9th Cir. 2015) (en banc). IGRA divides gaming activities into “classes” based on the types of games involved. Class III gaming (the kind at issue here) “often involves ‘the types of high-stakes games usually associated with Nevada-style gambling,’ ” id. (citation omitted), such as banking card games and slot machines. 25 U.S.C. § 2703(8). IGRA permits class III gaming only if it is “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State,” id. § 2710(d)(1)(C), and approved by the Secretary of the Interior, id. § 2710(d)(3)(B).
IGRA requires Indian tribes to receive NIGC’s approval of a gaming ordinance before engaging in class III gaming on Indian land. N. Cty. Cmty. All., Inc. v. Salazar, 573 F.3d 738, 741 (9th Cir. 2009). A gaming ordinance is a resolution adopted by the tribe that describes how the tribe will operate its gambling facilities. 25 U.S.C. § 2710(b)(2)(B). NIGC “shall” approve a gaming ordinance that meets IGRA’s requirements “by not later than the date that is 90 days after the date on which [the ordinance] is submitted to the Chairman.” Id. § 2710(e). If NIGC has not acted on the proposed ordinance by the end of the ninety-day period, the gaming ordinance “shall be considered to have been approved by the Chairman, but only to the extent such ordinance ór resolution is consistent with the provisions’of’ IGRA. Id.; AT & T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 906 n.9 (9th Cir. 2002) (noting that NIGC’s tacit approval of a proposed gaming ordinance is final agency action).
NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). NEPA imposes on federal agencies certain “ ‘action-forcing’ procedures that require that agencies take a ‘hard look’ at environmental consequences” of major federal action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see also 42 U.S.C. § 4332. Those procedures are designed to “insure [sic] that environmental information is available to public officials and citizens before decisions are made and before actions are taken,” 40 C.F.R. § 1500.1(b), and to “help public officials make decisions that are based on understanding of environmental consequences,” id. § 1500.1(c). Preeminent among these “action-forcing procedures” is NEPA’s requirement that federal agencies contemplating “major Federal action[ ]” prepare an environmental impact statement (“EIS”) analyzing that action. See 42 U.S.C. § 4332; 40 C.F.R. § 1502.3. “NEPA directs that, ‘to the fullest extent possible ... public laws of the United States shall be interpreted and administered in accordance with [it].’ ” Westlands Water Dist. v. Nat. Res. Def. Council, 43 F.3d 457, 460 (9th Cir. 1994) (quoting 42 U.S.C. § 4332 (1988)). Therefore, NEPA applies “unless the existing law applicable to. such agency’s operations expressly prohibits or. makes full compliance with one of the directives impossible.” Jones v. Gordon, 792 F.2d 821, 826 (9th Cir. 1986) (quoting 115 Cong. Rec. 39703 (1969)).
B.
The Jamul Indian Village casino has been in the works for rtiore than fifteen years. The Tribe first enacted a gaming ordinance for class III, casino-style gaming in Jamul in the late 1990s,. and NIGC published notice of approval of the ordinance in the Federal Register on January 29, 1999. 64 Fed. Reg. 4,722, 4,723 (Jan. 29, 1999). The next year, the Tribe entered into a compact with the State of California to conduct class III gaming. 65 Fed. , Reg. 31,189 (May 16, 2000) (Secretary of the Interior’s notice of approval of the compact). The Tribe initially planned to build parts of the casino on land that it requested from the Secretary of the Interior in the form of a trust-transfer under, the Indian Reorganization Act, 25 U.S.C. § 461; see 67 Fed. Reg. 15,582 (Apr. 2, 2002), but it ultimately redesigned the proposed project to eliminate the need for the trust land, 78 Fed. Reg. 21,398, 21,399 (Apr. 10, 2013). The Tribe sought and obtained NIGC’s approval of a revised gaming ordinance for the redesigned project in 2013. Site preparation for the casino began early in 2014, and as of the time we held oral argument, construction was underway.
C.
In September 2013, plaintiffs sued NIGC, its chair, and several other federal actors (“Federal Defendants”); tribal officials- in their individual capacities (“Tribally-related defendants”); and several private companies alleging, inter alia, that defendants failed to comply with NEPA when evaluating the Jamul casino. In January 2015, plaintiffs filed in the district court a motion for a writ of mandamus under 5 U.S.C. § 706(1). That part of the APA enables federal courts to “compel agency action unlawfully withheld or unreasonably delayed.” Id. In their motion, plaintiffs requested “a writ of mandate to the Federal Defendants directing them to comply with NEPA and finalize and circulate a draft [supplemental environmental impact statement] SEIS while there is still time to avoid the consequences of the Defendants’ non-compliance with NEPA.” The district court denied relief, holding, in relevant part, that NIGC’s approval of the 2013 - gaming ordinance was not “major federal action” within the meaning of NEPA. 40 C.F.R. § 1508.18 (defining “major federal action”).
II.
We review de novo the district court’s decision on issues of law, including whether NEPA applies to the. agency action at issue here. See San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 991 (9th Cir. 2014). We review JAC’s petition for a writ of mandamus under the “arbitrary or capricious” standard of review. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763 (2004) (“An agency’s decision not to prepare an EIS can be set aside only upon a showing that it was ‘arbitrary, capricious,, an abuse of discretion, or otherwise not in accordance with law.’ ”).
III.
On appeal, JAC argues that NEPA required NIGC to conduct an environmental review before it approved the Tribe’s 2013 gaming ordinance, and NIGC’s failure to do so means that it “unlawfully withheld ... agency action.” 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.”). We disagree. Even if, as appellants argue, NIGC’s approval of the gaming ordinance was a “major Federal action[ ]” within the meaning of NEPA, 42 U.S.C. § 4332, NIGC was not required to prepare an EIS because there is an irreconcilable statutory conflict between NEPA and IGRA.
The federal respondents contend (and the district court concluded) that our decision in North County Community Alliance v. Salazar, 573 F.3d 738, 740 (9th Cir. 2009), conclusively resolves the NEPA issues presented here. We respectfully disagree. The plaintiffs in North County sued NIGC after the Commissioner approved a tribal gaming ordinance without first determining whether the tribe’s proposed casino was on “Indian lands,” as defined by IGRA. The crux of the plaintiffs’ complaint was that the agency violated IGRA because it failed to make an “Indian lands determination.” Id. The North County plaintiffs also argued that NIGC violated NEPA, a challenge we resolved as follows:
The Alliance claims that NIGC’s failure to make an Indian lands determination constituted a “major Federal action[]” under 42 U.S.C. § 4332(C) requiring environmental review, including preparation of an EIS, under NEPA. We disagree. There has been no major federal action in this case. Therefore, the Appel-lees had no obligation under NEPA.
Id. at 749. North County does not settle the NEPA issue presented here because we limited our NEPA analysis in North County to the issue presented: Whether “NIGC’s failure to make an Indian lands determination constituted a ‘major Federal action[]’ under 42 U.S.C. § 4332(C) requiring environmental review, including preparation of an EIS, under NEPA.” Id.; see also Appellant’s Reply Brief at *15 n.7, North County, 573 F.3d at 738 (No. 07-36048), 2007 WL 5445598 (the Indian lands determination would have “provide[d] the ‘major federal, action’ required to trigger NEPA”). North County did not address whether NEPA requires NIGC to conduct an environmental review before approving a gaming ordinance. We have not had occasion to address this issue in our prior decisions, but we turn to it now.
Our court has recognized two circumstances where an agency need not complete an EIS even in the presence of major federal action and “despite an absence of express statutory exemption.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 648 (9th Cir. 2014). First, an agency need not adhere to NEPA “where doing so ‘would create an irreconcilable and fundamental conflict’ with the substantive statute at issue.” Id. Second, in limited instances, a substantive statute “displaces” NEPA’s procedural requirements. Id. This case falls into the first category.
The Supreme Court first considered the presence of “an irreconcilable and fundamental conflict” in Flint Ridge Development Co. v. Scenic Rivers Ass’n of Oklahoma. 426 U.S. 776 (1976). Flint Ridge involved a statute requiring developers of subdivisions to prepare a statement about their proposed project before marketing homes to the public. Id. at 779-80. Developers were required to file their statement with the U.S. Department of Housing and Urban Development (“HUD”). The statute provided that a developer’s statement would “become[ ] effective automatically on the 30th day after filing, or on such earlier date as the [HUD] Secretary may determine.” Id. at 781. Defendants proposed construction of a subdivision near the Illinois River in Oklahoma. While the paperwork was pending, plaintiffs petitioned HUD to prepare an EIS to study the impact of the subdivision on the river. HUD rejected plaintiffs’ request, and they sought judicial review. The Supreme Court upheld the agency’s action, concluding that there was an irreconcilable conflict between the HUD statute’s thirty day time-line and NEPA: “It is inconceivable that an environmental impact statement could, in 30 days, be drafted, circulated, commented upon, and then reviewed and revised in light of the comments.” Id. at 788-89. Thus, “even if the Secretary’s action in this case constituted major federal action significantly affecting the quality of the human environment so that an environmental impact statement would ordinarily be required, there would be a clear and fundamental conflict of statutory duty” between the HUD statute and NEPA, such that “NEPA’s impact statement requirement is inapplicable.” Id. at 791. Under Flint Ridge, “[a]n irreconcilable conflict is created if a statute mandates a fixed time period for implementation and this time period is too short to allow the agency to comply with ' NEPA.” Westlands Water Dist., 43 F.3d at 460.
Our court has been reticent to find a statutory conflict between NEPA and other provisions of the U.S. Code lest Flint Ridge’s exception undermine Congress’s intent that NEPA apply broadly. See, e.g., Forelaws on Board v. Johnson, 743 F.2d 677, 683 (9th Cir. 1985) (“NEPA’s legislative history reflects Congress’s concern that agencies might attempt to avoid any compliance with NEPA by narrowly construing other statutory directives to create a conflict with NEPA.”), as amended. Thus, we have held that a short time frame for agency action does not create a statutory conflict under Flint Ridge when an agency, not Congress, imposes a deadline. Id., at 683-85. There is likewise no “irreconcilable conflict” under Flint Ridge when the triggering act for a short statutory time table “is within the control of the” agency. Jones, 792 F.2d at 826; see also id. (declining to And a statutory conflict between NEPA and the Marine Mammal Protection Act’s permit approval timeline because “the triggering act for the statutory time table, the publication of notice of a permit application, is within the control” of the agency, and the agency “could'withhold publication long enough to comply with any NEPA requirement for preparation of an” EIS). By contrast, an irreconcilable conflict does exist where “Congress did not give the Secretary discretion over when he may carry out his duties,” Westlands Water Dist., 43 F.3d at 460, and the statute imposing the time table provides that the proposed action is approved “unless the'[agency] acts before the expiration of the statutory period,” Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 662 (D.C. Cir. 2011) (distinguishing Flint Ridge on this ground); see also Flint Ridge, 426 U.S. at 781.
Here, like in Flint Ridge and Westlands Water District, Congress imposed an unyielding statutory deadline for agency action. IGRA requires NIGC to approve a gaming ordinance or resolution “by not later than the date that is 90 days after the date on which any tribal gaming ordinance or resolution is submitted to the Chairman ... if it meets the requirements of this section.” 25 U.S.C. § 2710(e). Courts routinely interpret this provision of IGRA as creating a mandatory deadline for agency action. See, e.g., Coeur d’Alene Tribe, 295 F.3d at 906 n.9 (an agency’s tacit approval of a gaming ordinance under § 2710(e) is a final agency action for purposes of the APA); Massachusetts v. AQUINNAH, No. 13-13286-FDS, 2015 WL 7185436, at *6 n.4 (D. Mass. Nov. 13, 2015) (“A gaming ordinance is automatically approved by NIGC, by operation of law, if it does not act on the ordinance within 90 days.”); cf. Gottlieb v. Peña, 41 F.3d 730, 731 (D.C. Cir. 1994) (contrasting § 2710(e), a mandatory deadline for agency action, with the “ten-month period for final agency action on applications for correction of Coast Guard records,” a discretionary deadline for agency action). The deadline at issue here was imposed by Congress, not NIGC. See 25 U.S.C. § 2710(e). And, unlike in Jones, the act triggering IGRA’s timetable is not within NIGC’s control because it is a tribe’s submission of a proposed gaming ordinance to the agency that triggers the statutory countdown. Id.; cf. Jones, 792 F.2d at 826. Finally, like in Flint Ridge, a gaming ordinance or resolution automatically takes effect after ninety days with or without action by the Commissioner. 25 U.S.C. § 2710(e) (“Any such ordinance or resolution not acted upon at the end of that 90-day period shall be considered to have been approved by the Chairman .... ”).
There is no question that it would be impossible for NIGC to prepare an EIS in the ninety days it has to approve a gaming ordinance. The Supreme Court in Flint Ridge recognized that
[d]raft environmental impact statements on simple projects prepared by experienced personnel take some three to five months to complete, at least in the Department of the Interior.... Once a draft statement is prepared, [Council on Environmental Quality] guidelines provide that ‘[t]o the maximum extent practicable’ no.action should be taken sooner than 90 days after a draft environmental impact statement (and 30 days after the final statement) has been made available for comment.
Flint Ridge, 426 U.S. at 789 n.10. In keeping with the Supreme Court’s analysis, we have previously assumed that it.takes an agency at least 360 days to prepare an EIS. See Jones, 792 F.2d at 825;
NEPA’s regulations confirm that an agency cannot prepare an EIS in ninety days. Before publishing its final EIS on a proposed project, an agency must: (1) publish in the Federal Register a notice of intent to prepare an EIS, 40 C.F.R. §§ 1508.22, 1501.7; (2) gather input on the scope of issues the EIS should address (this is called scoping), id. § 1501.7; (3) prepare a draft EIS and publish that document in the Federal Register, id. §§ 1502.9, 1506.10(a); (4) provide the public an opportunity to comment on the draft EIS and respond to those comments, id. § 1503.4; (5) prepare the final EIS, id. § 1502.9; and (6) prepare and issue a record of decision, id. § 1505.2. The regulations make it impossible for an agency to complete these steps within ninety days. NIGC has previously given the public thirty days to comment • on the scope and implementation of a proposed EIS. See 78 Fed. Reg. 21,398 (Apr. 10, 2013). An agency must provide forty-five days for public comment on a draft EIS, 40 C.F.R. § 1506.10(c), and it must wait at least thirty days after publishing the final EIS before finalizing the proposed action, id. § 1506.10(b)(2). In all cases, “[n]o decision on the proposed action shall be made or recorded ... until ... [njinety (90) days after publication of the” notice of the draft EIS in the Federal Register. Id. § 1506.10(b)(1). So, assuming it takes no time to respond to the public’s view on scope and implementation, prepare a draft EIS, and incorporate public comments into the final EIS, the shortest time frame in which NIGC could prepare an EIS would be one hundred and twenty days. Plainly, there is an irreconcilable statutory conflict between the mandatory agency deadline in 25 U.S.C. § 2710(e) and NEPA.
This conclusion is consistent with NIGC’s informal analysis of its own NEPA obligations. NIGC published a draft NEPA Handbook in 2009 that says: “In some cases, the NIGC’s statutory requirements are inconsistent with NEPA. The following NIGC action(s) have been determined to fit into this category: ... Approval of Tribal gaming ordinances or resolutions as provided in § 2710 of the IGRA, which must be completed within ninety (90) days of submission to the NIGC.” 74 Fed. Reg. 63,765, 63,769 (Dec. 4, 2009).
Contrary to JAC’s arguments, NIGC’s approval of the Tribe’s gaming ordinance without conducting a NEPA environmental review did not violate NIGC’s obligations under NEPA because “where a clear and unavoidable conflict in statutory authority exists, NEPA must give way.” Flint Ridge, 426 U.S. at 788. Though the district court relied on other grounds, we affirm its denial of plaintiffs requested writ of mandamus.
CONCLUSION
The decision of the district court is
AFFIRMED.
. In this opinion we address only JAC’s contention that NIGC violated NEPA when it approved the GO. We address JAC’s remaining arguments in a memorandum disposition filed contemporaneously with this opinion.
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ORDER
Appellants’ petition for rehearing is granted in part and the opinion filed February 6, 1987, 809 F.2d 1385, is amended as follows:
The sentence beginning on page 6, line 17 of the slip opinion [page 1388, 1st col., line 20] beginning with the words “Even absent direct proof ...” should be deleted and replaced with the following:
In any event, Alexander is liable as a controlling person if (1) Alexander had actual power or influence over Shestak, and (2) Alexander was a culpable participant in the alleged illegal activity. Buhler v. Audio Leasing Corp., 807 F.2d 833, 835 (9th Cir.1987). Participation may be proven indirectly by showing that Alexander failed to establish a reasonable system of supervision and control. Id. at 836. In the broker-dealer context presented here, Alexander had actual power over Shestak as his employer and a corresponding duty to supervise him. See Kersh v. General Council, 804 F.2d 546, 550 (9th Cir.1986); Zweig v. Hearst Corp., 521 F.2d 1129, 1134-35 (9th Cir.), cert. denied, 423 U.S. 1025 [96 S.Ct. 469, 46 L.Ed.2d 399] (1975). Alexander does not seriously dispute this, but claims instead there is no evidence to support the allegation that its supervision and training were inadequate. The evidence, however, clearly supports this claim.
The full court was advised of the suggestion for rehearing en banc. No active judge requested a vote on whether to rehear the matter en banc (Fed.R.App.P. 35).
In all other respects the petition for rehearing with suggestion for rehearing en banc is denied.
For example, Alexander did not hold regular sales meetings of its account executives or sales people. Shestak did not receive an employee manual or receive any training from Alexander. Moreover, Shestak testified he was unaware of any Alexander policy regarding controls on outside sales and the evidence suggests Alexander did not require written notification of such sales.
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PER CURIAM:
Plaintiffs-Appellants Solutia, Inc. and Pharmacia Corporation (Solutia & Pharmacia) appeal the District Court’s grant of summary judgment against their claims under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Solutia & Pharmacia also appeal the District Court’s denial of their Federal Rule of Civil Procedure 59(e) motion to clarify or amend the summary judgment order. The appeal requires this Court to decide, as a matter of first impression, whether parties subject to a consent decree may file claims for cost recovery under § 107(a) of CERCLA, or whether their remedies are limited to filing claims for contribution under § 113(f) of CERCLA.
I. BACKGROUND
As the Magistrate Judge noted in his thorough ruling granting summary judgment, “[t]his case is complex, in terms of its underlying facts, its litigation history, and the legal issues it presents.” Monsanto Company produced polychlorinated bipheyls (PCBs) at a plant near downtown Anniston, Alabama from 1929 to 1971. Monsanto’s operations caused and contributed to environmental contamination of the areas surrounding the Anniston plant. In 1997, Monsanto spun off Solutia, which now owns and operates the Anniston plant. In 2000, the merger of Monsanto and Pharmacia & Upjohn Inc. resulted in the creation of Pharmacia Corporation.
In 2002, the United States Environmental Protection Agency (EPA) filed a cleanup enforcement action under CERCLA in the District Court for the Northern District of Alabama against Solutia & Pharmacia (the Enforcement Case). The EPA and Solutia & Pharmacia resolved the Enforcement Case in August 2003 by entering into a Partial Consent Decree (PCD), which imposed joint and several obligations on the companies to finance and perform specified cleanup operations. The PCD and its incorporated documents referenced two areas of contamination that are the subject of this appeal — the “Anniston PCB Site” and the “Anniston Lead Site.” The PCD reserved the right of Solutia & Pharmacia to seek contribution from other potentially responsible parties (PRPs) for cleanup costs associated with the Anniston Lead Site.
Nearly two years after the District Court approved the PCD, the EPA entered into a separate CERCLA settlement agreement with the Foothills Community Partnership. The settlement required the Partnership to reimburse the EPA for its past and future costs in cleaning up lead contamination in the Anniston area. Almost all Defendants in the present appeal (“Settling Defendants”), with the exception of Southern Tool LLC and Scientific Atlanta (“Non-Settling Defendants”), were parties to this CERCLA settlement.
Solutia & Pharmacia believed that the EPA’s settlement with the Partnership undermined their right, as delineated in the PCD, to seek contribution from other potentially responsible parties for cleanup costs relating to the Anniston Lead Site. Seeking to vindicate this position, they filed a motion in the Enforcement Case. The District Court agreed that the EPA had repudiated the PCD and indicated that, upon motion, he would suspend Solutia & Pharmacia’s obligations under the consent order. However, Solutia & Pharmacia never took the District Court up on its offer, thus leaving the PCD in effect. Then, in July 2006 the EPA and Solutia & Pharmacia entered into a Stipulation Clarifying the Partial Consent Decree (Stipulation). In it, Solutia & Pharmacia agreed to clean up specified geographical areas around Anniston — Zones A, B, C, and D— including areas that involved lead contamination.
II. PROCEDURAL HISTORY
In June 2003, Solutia & Pharmacia filed this action in the District Court for the Northern District of Alabama against the Defendants-Appellees as potentially responsible parties under CERCLA. In Count I of their Amended Complaint, Solutia & Pharmacia asserted claims for contribution under § 113(f) of CERCLA (codified as 42 U.S.C. § 9613(f)) for cleanup costs incurred at the Anniston Lead Site and Anniston PCB Site. In Count II, Solutia & Pharmacia asserted claims for recovery under § 107(a) of CERCLA (codified as 42 U.S.C. § 9607(a)) for cleanup costs incurred at the Anniston Lead Site only.
The Settling Defendants moved for summary judgment on the § 107(a) recovery and § 113(f) contribution claims. Southern Tool and Scientific Atlanta, the Non-Settling Defendants, moved for summary judgment only on the § 107(a) recovery claims. In June 2008, the Magistrate Judge granted Settling Defendants summary judgment on Count I — the § 113(f) contribution claims — because the claims were precluded under § 113(f)(2), which provides, “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” 42 U.S.C. § 9613(f)(2). As to Count II, the Judge ruled that Solutia & Pharmacia were entitled to proceed against all Defendants on claims seeking cost recovery under § 107(a) with regard to the Anniston Lead Site.
However, after the Defendants filed motions to reconsider in December 2009, the Magistrate Judge vacated his prior order and entered summary judgment against Solutia & Pharmacia on their § 107(a) claims in July 2010. The Judge based his July 2010 order on cases decided in the wake of United States v. Atlantic Research Corp., 551 U.S. 128, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007), as well as the July 2006 Stipulation between the EPA and Solutia & Pharmacia, which had not been presented to the Court at the time of its June 2008 order. The Judge ruled that because the PCD and the Stipulation granted Solutia & Pharmacia contribution rights under § 113(f) for certain costs, they could not choose to bring their claims under § 107(a) for those same costs.
Solutia & Pharmacia filed a Rule 59(e) motion to clarify or amend the July 2010 order, requesting that the Magistrate Judge reinstate their § 107(a) claims for response costs that they had incurred pri- or to entry of the Partial Consent Decree. The Judge denied the motion, because Solutia & Pharmacia relied on arguments in their Rule 59(e) motion that they had not previously raised.
III. SOLUTIA & PHARMACIA’S § 107(a) CLAIMS
Solutia & Pharmacia argue that the Magistrate Judge erred, because the plain language of CERCLA allows them to recover cleanup costs that they directly incurred, even if those costs are the subject of a consent decree between them and the EPA.
Whether § 107(a) of CERCLA grants parties a right to recover cleanup costs that they directly incur in complying with a consent decree is a matter of statutory interpretation subject to de novo review. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.2004).
At the center of this dispute are two CERCLA provisions — § 107(a) and § 113(f) (codified as 42 U.S.C. §§ 9607(a), 9613(f)). The United States Supreme Court has explained in two recent decisions that each provision grants private parties a distinct right of action for recouping environmental cleanup costs. Cleanup costs incurred voluntarily and directly by a party are recoverable only under § 107(a)(4)(B), even if the claimant is not entirely innocent under CERCLA. Atl. Research, 551 U.S. at 139, 127 S.Ct. at 2338. Further, § 107(a) imposes joint and several liability on CERCLA defendants. Id. at 140 n. 7, 127 S.Ct. at 2339 n. 7.
By contrast, if a person is forced to reimburse a third party for its cleanup efforts, as mandated by a legal judgment or settlement under CERCLA, then that person may only seek contribution for those reimbursement costs from other potentially liable parties under § 113(f). Cooper Indus., Inc. v. Aviall Services, Inc., 543 U.S. 157, 166, 125 S.Ct. 577, 583, 160 L.Ed.2d 548 (2004). Further, where § 107(a) imposes joint and several liability, § 113(f)’s right of contribution is premised upon the common law concept that the tortfeasor-plaintiff “paid more than his or her proportionate share,” such that allocation according to fault between the § 113(f) plaintiff and defendant is appropriate. Atl. Research, 551 U.S. at 138, 127 S.Ct. at 2338.
Section 113 of CERCLA contains additional provisions that define the scope of available remedies under § 107(a) and § 113(f). First, under § 113(f)(2), if a party has settled its liability to the United States or a state government, it cannot later be held liable to another claimant for contribution under § 113(f). See 42 U.S.C. § 9613(f)(2). Second, § 113(g) of CERCLA provides for different statutes of limitations, depending on whether the claim originates under § 107(a) or § 113(f). See 42 U.S.C. § 9613(g)(2)-(3).
In Atlantic Research, the Supreme Court expressly declined to decide the issue presented here — whether a party who incurs direct cleanup costs pursuant to a consent decree following a CERCLA lawsuit under § 106 or § 107 may bring an action to recover those costs under § 107(a). 551 U.S. at 139 n. 6, 127 S.Ct. at 2338 n. 6. However, we are not drawing on a completely blank slate. Since Atlantic Research was decided, other circuits have held that § 113(f) provides the “exclusive remedy for a liable party compelled to incur response costs pursuant to an administrative or judicially approved settlement under §§ 106 or 107,” including a consent decree. Morrison Enter., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011); accord Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir.2010) (holding that parties subject to a consent decree cannot bring a claim under § 107(a)); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir.2010) (holding that parties that settle CERCLA liability with government agencies can only bring § 113(f) contribution claims).
In addition, this is not the first time that the Eleventh Circuit has encountered consent decrees in the context of CERCLA. In fact, this Court has held that a consent decree gives a party a right to contribution under § 113(f) in Atlanta Gas Light Co. v. UGI Utilities, Inc., 463 F.3d 1201, 1203-04 (11th Cir.2006). In accordance with our precedent, we conclude that Solutia & Pharmacia are entitled to a contribution claim under § 113(f) of CERCLA. Now we must decide whether a party who has a claim under § 113(f) for cleanup costs may also have a claim under § 107(a) for those same costs.
Solutia & Pharmacia argue that there is no language in either § 107 or § 113 to suggest that § 107(a) and § 113(f) are mutually exclusive remedies. Be that as it may, CERCLA must “be read as a whole,” Atl. Research, 551 U.S. at 135, 127 S.Ct. at 2336 (quotation marks omitted), such that its remedies remain “clearly distinct.” Id. at 138,127 S.Ct. at 2337 (quotation marks omitted). If a party subject to a consent decree could simply repackage its § 113(f) claim for contribution as one for recovery under § 107(a), then the structure of CERCLA remedies would be completely undermined. For example, parties could circumvent the different statutes of limitations that attach to § 113(f) contribution claims and § 107(a) recovery claims. See 42 U.S.C. § 9613(g)(2)-(3). Further, parties, like Solutia & Pharmacia, could thwart the contribution protection afforded to parties that settle their liability with the EPA, like the Settling Defendants. See 42 U.S.C. § 9613(f)(2). This, in turn, would destroy CERCLA’s statutorily-created settlement incentive. Finally, to allow a § 107(a) claim here would allow parties, like Solutia & Pharmacia, to impose joint and several liability on Defendants, and other similarly situated parties. Defendants would then be barred from asserting any § 113(f) counterclaims, because Solutia & Pharmacia have already entered into a judicially approved settlement with the EPA. See 42 U.S.C. § 9613(f)(2); Agere Sys., 602 F.3d at 228.
For these reasons, we agree with our sister circuits that we must deny the availability of a § 107(a) remedy under these circumstances in order to “[t]o ensure the continued vitality of the precise and limited right to contribution.” Morrison Enter., 638 F.3d at 603; accord Niagara Mohawk Power, 596 F.3d at 128 (“[P]roceed[ing] under § 107(a) would ... abrogate the requirements Congress placed on contribution claims under § 113.”).
IV. SCOPE OF PARTIAL CONSENT DECREE
Solutia & Pharmacia argue that, even if this Court finds § 113(f) to be their exclusive remedy, they do not have a § 113(f) contribution action for the Anniston Lead Site, because they were not obligated to clean the Site under the Partial Consent Decree (PCD). Therefore, they claim entitlement to bring § 107(a) claims for cleanup costs related to the Anniston Lead Site.
We review the scope and meaning of a consent decree de novo. Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir. 2000).
The PCD incorporates a number of documents and schedules to clarify its purpose and scope. This includes “all work and other plans ... set forth herein or developed by [Solutia & Pharmacia] and approved by EPA pursuant to this Consent Decree.” According to this clause, future plans developed pursuant to the PCD, such as the July 2006 Stipulation, should be considered as much a part of the PCD as the documents in existence at the time it was drafted. Therefore, it makes most sense to examine the July 2006 Stipulation, because it clarifies the scope of Solutia & Pharmacia’s obligations under the Partial Consent Decree.
Solutia & Pharmacia have argued that the Stipulation is not admissible into evidence. However, Solutia & Pharmacia did not contest the admissibility of the Stipulation in their opening brief on appeal, even though the Magistrate Judge relied extensively on the Stipulation in his order. Therefore, they have abandoned this argument. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972 (11th Cir.2008).
The Stipulation classifies Solutia & Pharmacia’s remedial obligations by geographic area — Zones A, B, C, and D. In Zone A, and certain properties in Zone B that have already been sampled for contamination, the companies agreed to clean yards with a soil “PCB concentration greater than or equal to lppm and no surface lead concentration greater than or equal to 400pm.” In those Zone B properties that had yet to be sampled, the companies agreed to clean yards with “soil PCB concentrations greater than or equal to lppm .... regardless of the level of lead found in that yard.” In Zone C, Solutia & Pharmacia similarly agreed to remedy yards “containing surface soil PCB concentrations greater than or equal to lppm, regardless of the levels of lead found in such yards.” And in Zone D, the companies agreed to remedy yards with “PCB concentrations greater than or equal to lppm and/or surface soil lead concentrations greater than or equal to 400ppm.” The Stipulation thus demonstrates that Solutia & Pharmacia were obligated to clean areas in which PCBs were commingled with other hazardous substances, namely, lead. Beyond that, these obligations were defined according to geographic areas, not according to the source of the contamination, thereby undermining Solutia & Pharmacia’s argument to the contrary. Even if we were to accept Solutia & Pharmacia’s other arguments concerning the scope of the Partial Consent Decree and Stipulation, it would not change the fact that Solutia & Pharmacia were compelled to clean the properties specified in the Stipulation, and therefore, have exclusive § 113(f) claims as to those costs.
V. RULE 59(e) MOTION TO ALTER OR AMEND JUDGMENT
In their Rule 59(e) motion under the Federal Rules of Civil Procedure, Solutia & Pharmacia asked the Magistrate Judge to overturn summary judgment as it related to $14 million in cleanup costs for areas allegedly not covered by the Partial Consent Decree. The Magistrate Judge denied the motion for failure to raise the argument before entry of summary judgment. According to Solutia & Pharmacia, “[t]his was error, because defendants never argued that they were entitled to summary judgment with respect to [those] areas” not covered by the PCD.
This Court reviews the denial of a motion to alter or amend judgment under Rule 59(e) for abuse of discretion. Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir.2007).
In each of their December 2009 motions for reconsideration of summary judgment, Defendants either requested that the Magistrate Judge dismiss all of Solutia & Pharmacia’s § 107(a) claims, or that the Judge limit all of Solutia & Pharmacia’s claims to § 113(f). Solutia & Pharmacia argued in their answer that § 113(f) was not then-exclusive statutory remedy. They further argued that the PCD did not compel them to clean up the Anniston Lead Site and that any costs incurred in cleaning up that site were voluntary. However, Solutia & Pharmacia limited their arguments to the content of the Partial Consent Decree, and the definition of the Anniston Lead Site contained therein. They never actually argued prior to the grant of summary judgment, as they do now, that they “voluntarily incurred costs unrelated to the Consent Decree.” Nor did Solutia & Pharmacia cite the properties by name that they now urge should be exempt from summary judgment.
As the Magistrate Judge correctly noted, “[t]here is no burden upon the district court to distill every potential argument that could be made based on the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir.1995). With this principle in mind, the Magistrate Judge did not abuse his discretion by denying Solutia & Pharmacia’s Rule 59(e) motion to alter or amend the summary judgment order.
VI. CONCLUSION
For the reasons stated above, we AFFIRM the grant of summary judgment.
. Pub.L. No. 96-510, 94 Stat. 2767 (1980), amended by Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613 (1986).
. The EPA has determined that exposure to PCBs has numerous deleterious health consequences, and therefore regulates their manufacture and distribution. See 40 C.F.R. § 761.20.
. "Potentially responsible party” (PRP) is a term used under CERCLA to connote a private party who might be liable for cleanup costs that stem from environmental contamination. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161, 125 S.Ct. 577, 580, 160 L.Ed.2d 548 (2004).
. One of the documents incorporated into the PCD, the Non-time Critical Removal Agreement, specified:
[R]esidential properties containing lead in excess of 400 ppm are also part of the Anniston Lead Site and [the] EPA is in the process of identifying potentially responsible parties (PRPs) under CERCLA.... If [Solutia & Pharmacia] remove soil from any property having lead in excess of 400 ppm ... EPA acknowledges that [Solutia & Pharmacia] may seek contribution for the costs of such removal from the PRPs at the Anniston Lead Site and any other parties who may be liable.
. The Supreme Court identified the problem that arises in this situation as it relates to the party who "does not incur costs voluntarily [as required under § 107(a) ] but does not reimburse the costs of another party [as required under § 113(f)]." Atl. Research, 551 U.S. at 139 n. 6, 127 S.Ct. at 2338 n. 6
. Solutia & Pharmacia also argue that we must defer to EPA regulation, 40 C.F.R. § 300.700(c)(3)(ii). Section 107(a) only permits recovery claims for cleanup costs that are “consistent with the national contingency plan [NCP].” 42 U.S.C. § 9607(a)(4)(B). The EPA regulation explains that, for purposes of § 107(a) recovery actions, "[a]ny response action carried out in compliance with the terms of an order issued by EPA ... or a consent decree ... will be considered 'consistent with the NCP.’ ’’ 40 C.F.R. § 300.700(c)(3)(ii). However, Solutia & Pharmacia overstate the import of the regulation. Defining certain response actions as consistent with a national contingency plan does not automatically authorize parties to bring claims under § 107(a) if those claims otherwise fall under § 113(f). Instead, the regulation may simply recognize that a party, who is not subject to a consent decree, may bring a § 107(a) claim, if such an action would be consistent with an existing consent decree between the EPA and a third party. Thus, the regulation retains its meaning, even if it does not authorize parties subject to consent decrees to bring claims under § 107(a).
. Solutia & Pharmacia argue that courts could use their "inherent equitable powers to apportion liability” under a § 107(a) claim. While this suggestion would cure the inequitable outcome described above, it would also require this Court to challenge the Supreme Court's assumption in Atlantic Research that § 107(a) provides for joint and several liability. 551 U.S. at 140 n. 7, 127 S.Ct. at 2338 n. 7. Although Solutia & Pharmacia have cautioned this Court against "rewriting the statute,” their suggestion would require substantial reworking of CERCLA’s remedial scheme.
. Solutia & Pharmacia argue that the terms of the Stipulation provide that "it shall not be considered an admission of liability and is not admissible in evidence against the Defendants in any judicial or administrative proceeding other than a proceeding by the United States.”
. Further, the Magistrate Judge's decision to consider the Stipulation was not an abuse of discretion. As the Judge noted, the Stipulation is an agreement between the EPA and Solutia & Pharmacia. Solutia & Pharmacia did not argue that "the defendants, who are not parties to the Stipulation, are precluded from now relying upon it.”
. Solutia & Pharmacia argue that the Partial Consent Decree did “not rest on any particular geographic area or any particular contaminant [but] on the sources of the contaminants in each site.” As such, they claim a right to bring a § 107(a) claim for costs "incurred cleaning up wastes attributable to the defendants.”
. For example, Solutia & Pharmacia argue that, in the Stipulation, the parties expressly reserved the question of Solutia & Pharmacia's responsibility to clean the Anniston Lead Site. This does not alter the fact that Solutia & Pharmacia were obligated to clean the geographic zones specified in the Stipulation. Further, the Stipulation specified that any future liability for the Anniston Lead Site would be “in addition to Solutia & Pharmacia’s agreement to perform lead cleanup in Zones B, C, and D.” Thus, the reservation of the Anniston Lead Site issue did not affect Solutia & Pharmacia’s obligations under the Stipulation.
. Solutia & Pharmacia cite a Sixth Circuit case for the proposition that this Court should review de novo a Rule 59(e) motion to reconsider grant of summary judgment. Nat'l Leadbumers Health & Welfare Fund v. O.G. Kelley & Co., Inc., 129 F.3d 372, 374 (6th Cir. 1997). This argument is apparently unsupported by Eleventh Circuit precedent, and the Sixth Circuit case is not binding. Therefore, the standard of review remains abuse of discretion.
. Solutia & Pharmacia argue that Defendants’ motions for reconsideration argued for dismissal of any § 107(a) claims for which Solutia & Pharmacia had incurred compelled costs. Therefore, Solutia & Pharmacia should still be entitled to bring their claims for any voluntarily incurred costs. We reject this argument. While Defendants' legal arguments might have discussed compelled costs, Defendants clearly moved for dismissal of all of Solutia & Pharmacia’s § 107(a) claims, whether they related to compelled or voluntary cleanup costs.
. Solutia & Pharmacia seek $4 million for recovery expenditures in the Choccolocco Creek Conservation Corridor, and $10 million in expenditures at Quintard Mall, Oxford Lake Park, the Choccolocco Creek Waste Water Treatment Plant, and certain Alabama Department of Transportation Bridges.
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LYNCH, Circuit Judge.
This case illustrates the perils facing a small business that does not determine whether it is subject to regulation under 33 U.S.C. § 1321, the oil spill provision of the Clean Water Act. Pepperell Associates operates a business out of an old textile mill building in Lewiston, Maine. In October 1996, a rupture in a gasket on a boiler caused an oil spill in the boiler room of the building. Some three- to four-hundred gallons of the oil ultimately worked its way into Gully Brook and from there to the Androscoggin River, both navigable waters of the United States. The spill was largely contained with the help of cleanup experts sent in by the state of Maine.
The Environmental Protection Agency responded with a three count administrative penalty action against Pepperell. That complaint was heard by an administrative law judge and the results were appealed by both sides to the Environmental Appeals Board (“EAB”). Pepperell ended up with an order that it had violated its obligation to have a spill control plan, that it was not excused from having such a plan during a limited period by the installation of a new oil storage tank, and that it must pay a total penalty of $43,643 for the three counts of the complaint. Pepperell has sought judicial review of that order in this court. See 33 U.S.C. § 1321(b)(6)(G)(ii). We deny the petition for review.
I.
The facts are undisputed. The case instead concerns what conclusions may rationally be drawn from those facts. Pepperell Associates is the owner and operator of the historic Pepperell textile mill, located in an industrialized section of downtown Lewiston. In June 1985, after its use as a mill had been discontinued, Pepperell purchased the facility and used the building as light industrial and warehouse rental space. At the time of the spill, the mill complex had three underground heating oil storage tanks, each with a capacity of 30,000 gallons. The tanks were located next to the facility’s boiler room, and only two were still connected to the boiler. About 500 feet from the facility is Gully Brook, a tributary of the Androscoggin River. Both are navigable waters of the United States.
A spill occurred early in the morning on October 17, 1996, when a gasket ruptured on the facility’s boiler, spilling oil onto the boiler room floor. That oil then flowed down a stairwell, through a condensate pipe tunnel, and into the city sewer conduit and box culvert. Ordinarily the city sewer conduit and box culvert discharge municipal solid waste and storm water from Lewiston to the Lewiston-Auburn Treatment Plant. However, during times of high water, the box culvert also operates as a combined sewage and storm water overflow (“CSO”), which periodically discharges into Gully Brook. In this case, the oil not only spilled into the sewer line but also discharged through the culvert into Gully Brook.
As a result of the spill, some of the oil entered the Androscoggin River from its tributary. The spill caused a noticeable sheen on the surface of both Gully Brook and the Androscoggin River, with the sheen on the Androscoggin extending for approximately one mile from their confluence. The remainder of the oil entered the city treatment facility, which lacks the capacity to treat such industrial wastes.
On the morning of the spill, one of the owners of Pepperell contacted the Maine Department of Environmental Protection (“MDEP”). The MDEP and the EPA, along with the Coast Guard and the fire department, assisted Pepperell in responding to the spill. The MDEP arranged for cleanup of the spill, spending a total of $23,643.82 for cleanup of the boiler room, Gully Brook, the Androscoggin River, and the treatment plant. In all, between 350 and 400 gallons of oil reached Gully Brook and the Androscoggin River, of which 300 gallons were recovered. As provided by Maine law, Pepperell partially reimbursed the state for the costs of cleanup.
On the day of the spill, the EPA’s On-Scene Coordinator Scott Pellerin informed the owners of Pepperell that upon his inspection he believed that Pepperell was required by the Clean Water Act to have already prepared and implemented a Spill Prevention Control and Countermeasures (“SPCC”) Plan for the facility. On October 31, 1996, Pepperell disconnected a second of the underground tanks from the boiler and took it out of use. And on July 14, 1997, Pepperell removed all three tanks from the ground. Up to the time of the removal of the tanks, Pepperell had not prepared or implemented an SPCC plan. On October 16, 1997, Pepperell replaced the tanks with a single 20,000-gallon above-ground storage tank. On April 14, 1998, Pepperell submitted an SPCC plan that recommended a series of alterations to the facility designed to prevent oil spills, and that plan was fully implemented on or about September 15,1998.
II.
Following the oil spill, the EPA filed an administrative complaint against Pepperell alleging that it had failed to prepare and implement a Spill Prevention Control and Countermeasures Plan as required by the Clean Water Act, see 33 U.S.C. § 1321(j)(l); 40 C.F.R. Part 112, and that it had discharged oil into a navigable waterway in violation of that Act, see 33 U.S.C. § 1321(b)(3).
On September 29, 1998, the complaint was amended to include three counts. The EPA charged in Count One of the complaint that Pepperell had operated a facility regulated under the Oil Pollution Prevention regulations throughout the period when the three tanks had been in the ground — from December 1985 to July 14, 1997 — and had failed to prepare and implement an SPCC plan. Count Two charged that from the completion of the above-ground tank in October 16, 1997, until the submission of an SPCC plan on April 14, 1998, Pepperell had operated a facility regulated under the Act, and had both failed to prepare an amended SPCC plan as required and failed to implement such a plan within six months of the completion of the modification. Count Three alleged that on October 17, 1996, Pepperell discharged oil in harmful quantities into a navigable water of the United States in violation of 38 U.S.C. § 1321(b)(3). For these three violations, the EPA sought a total penalty of $47,930.
Following a hearing in October 1998, the administrative law judge issued an initial decision on February 26, 1999. The judge found Pepperell liable under Count One for failure to have implemented an SPCC plan with regard to the underground tanks, but determined that Pepperell’s liability extended only from December 1985 to October 31, 1996, when Pepperell disconnected the second storage tank from the boiler, reasoning that the disconnection of the second tank reduced Pepperell’s underground storage capacity below the 42,000-gallon capacity threshold for jurisdiction under the SPCC regulations, see 40 C.F.R. § 112.1(d)(2). Having found that Pepperell was not required to have an SPCC plan from November 1, 1996, to the removal of the underground tanks in July 1997, the administrative law judge assessed Count Two under the provision governing new plans for facilities that are beginning operation rather than the provision governing plan amendments when modifications are made to facilities already in operation. Applying this provision, the judge dismissed Count Two. The administrative law judge found Pepperell liable under Count Three for the oil spill, but reduced the penalty to reflect Pepperell’s partial repayment of the cleanup costs to the state of Maine, assessing a total penalty of $24,876.
Both sides appealed to the Environmental Appeals Board. On appeal, the EPA contended (1) that Pepperell’s liability under Count One should extend to July 14, 1997; (2) that the administrative law judge erred as to Count Two by applying the standard and deadlines for new rather than amended SPCC plans; and (3) that a proper evaluation of the statutory penalty factors warranted a higher penalty for the alleged violations. Pepperell also appealed, contesting its liability under Count One on the ground that given its location, the discharge of oil into navigable waters could not reasonably be expected. Pepperell also contested the penalty calculation.
The EAB issued its decision on May 10, 2000. The EAB held that the administrative law judge was correct on Count One that the facility was subject to SPCC regulations because due to its location, it could reasonably be expected to discharge oil in harmful quantities into navigable waters, and, contrary to the administrative law judge, that this liability extended until July 1997, because throughout that time the facility met the storage-capacity and foreseeability-of-discharge requirements. On the second count, the EAB reversed the administrative law judge, determining that the construction of the above-ground tank was a material modification of an existing facility subject to SPCC regulations and therefore subject to different deadlines than were it a wholly-new facility. The three-month period (from July to October 1997) when there was no oil capacity, the EAB said, was part of an ongoing process of modification, not a lapse in jurisdiction. Finally, the EAB reassessed the penalty, and imposed a total penalty of $43,643. Pepperell now seeks judicial review.
III.
Agency decisions, including those of the EPA under the Clean Water Act, are normally entitled to substantial deference provided the agency has followed its ovm procedures and its decisions meet the substantive statutory commands. A reviewing court shall not set aside or remand the EAB’s finding of a violation under the Clean Water Act “unless there is not substantial evidence in the record, taken as a whole, to support the finding of a violation.” 33 U.S.C. § 1321(b)(6)(G)(ii).
To the extent that the EAB’s decision reflects a gloss on its interpretation of the governing EPA regulations, a reviewing court must also afford those policy judgments substantial deference, deferring to them unless they are arbitrary, capricious, or otherwise “plainly” impermissible. See General Electric Co. v. United States Environmental Protection Agency, 53 F.3d 1324, 1327 (D.C.Cir.1995); see also Adams v. United States Environmental Protection Agency, 38 F.3d 43, 49 (1st Cir.1994). That deference is particularly strong where the agency’s expertise comes into play. See General Electric, 58 F.3d at 1327 (“The policy favoring deference is particularly important where, as here, a technically complex scheme is backed by an even more complex and comprehensive set of regulations.”). See also Puerto Rico Sun Oil Co. v. United States Environmental Protection Agency, 8 F.3d 73, 77 (1st Cir.1993) (“But in the end an agency decision must also be rational— technically speaking, it must not be ‘arbitrary or capricious,’ Administrative Procedure Act, 5 U.S.C. § 706(2)(A) — and that requirement exists even in technical areas of regulation.”).
The Clean Water Act provides that it is the policy of this country “that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States [or their] adjoining shorelines ...” 33 U.S.C. § 1321(b)(1). The Act authorizes the promulgation of regulations to define which discharges are harmful and are therefore regulated. 33 U.S.C. § 1321(b)(4). Those EPA regulations provide that discharges of oil are harmful if, inter alia, the discharge causes “a film or sheen upon or discoloration of the surface of the water or adjoining shorelines.” 40 C.F.R. § 110.3. Because the oil spill here caused a sheen, the EAB determined that that criterion was met.
Pepperell does not challenge the EAB’s finding that it discharged a harmful quantity of oil into navigable waters (Count Three of the Complaint), but raises four other issues regarding the EAB’s conclusions. First, Pepperell challenges the EAB’s determination that it was subject to SPCC regulation, arguing that because of the location of the facility, it could not be reasonably expected to discharge oil into or upon navigable waters. In any case, Pepperell says, the EAB erred in finding it subject to SPCC regulation between November 1, 1996, and July 14, 1997, as its underground oil storage capacity was less than the jurisdictional threshold for SPCC regulation. Pepperell also argues that the EAB erred in finding the construction of the new 20,000-gallon above-ground storage tank was a modification of an existing facility rather than a new facility, and therefore holding it liable for not properly preparing and implementing an amended SPCC plan. Finally, Pepperell challenges the EAB’s calculation of the penalty. We take these arguments in turn, and affirm the EAB’s conclusion on each.
A. The Failure to Have an SPCC Plan
Pepperell contests the initial finding that it was subject to the Spill Prevention Control and Countermeasure regulations for the original three underground storage tanks. At issue here is the scope of coverage of the SPCC regulations. Those regulations apply to:
[OJwners or operators of non-transportation-related onshore and offshore facilities engaged in ... storing ... oil and oil products, and which, due to their location, could reasonably be expected to discharge oil in harmful quantities ... into or upon the navigable waters of the United States or adjoining shorelines.
40 C.F.R. § 112.1(b). In turn, the regulations exclude:
Onshore and offshore facilities which, due to their location, could not reasonably be expected to discharge oil into or upon the navigable waters ... This determination shall be based solely upon a consideration of the geographical, locational aspects of the facility (such as proximity to navigable waters or adjoining shorelines, land contour, draining, etc.) ...
40 C.F.R. § 112.1(d)(1)®. An owner or operator subject to the regulations must prepare an SPCC plan in accord with certain requirements.
The dispute is over whether Pepperell is an included or excluded facility; that is, applying the test under the regulations, whether “due to [its] location,” the discharge of a harmful quantity of oil into navigable waters from the facility was “reasonably foreseeable.” Pepperell advances three lines of argument that such a discharge of oil was not reasonably foreseeable: (1) that considering the location of the facility in relation to Gully Brook alone, the discharge of oil into a navigable water could not be reasonably expected; (2) that the actual path taken by the oil could not be reasonably foreseen; and (3) that the unfortunate coincidence of the spill with high waters — a necessary condition for the oil reaching Gully Brook through the overflow — also could not have been reasonably foreseen.
As to the locational test, Pepperell says that, under the regulations, one considers only the “geographical” and “locational” aspects of the facility in assessing whether such a discharge is foreseeable." Pepperell claims that based on its location alone, there was no reason to expect a discharge from the facility into navigable waters. The mill facility is located in a dense industrial and urban area of downtown Lew-iston, it says, out of sight of any navigable waters. Moreover, Pepperell points out, the building is more than a hundred yards from the Gully Brook, the nearest navigable waters, and there is no downward slope from the facility to the waters. Indeed, it says, a major road separates the mill facility from Gully Brook.
However, these facts, taken alone, do not compel the EAB to agree with Pepperell that, under the regulations, the discharge into navigable waters was not reasonably foreseeable upon consideration of the “locational aspects” of the site. Pepperell oversimplifies the “locational” test; the inquiry is not limited to stark description of surrounding terrain. The test’s requirements are met so long as the EAB concludes that in light of the particular features of the site, a discharge into navigable waters was reasonably foreseeable. As the EAB notes, man-made features of a location that influence drainage patterns are highly relevant to any inquiry into the foreseeability of a harmful discharge. Upon consideration of the evidence about the site here, the EAB' concluded that such a discharge was foreseeable. Of more concern are Pepperell’s next two arguments, which challenge the support for this conclusion by the EAB.
Pepperell’s next argument challenges the application of the SPCC regulations because the path actually taken by the oil to navigable waters was not, it says, foreseeable. Pepperell correctly argues that the EAB had doubts that one could reasonably predict the actual path taken by the oü spilled in October 1996 as it worked its way to 'Gully Brook. The actual path taken by the oil is unclear, but it appears that the oil reached a condensate pipe tunnel at the mill, and from there somehow made its way into a sewer pipe, from which it overflowed into the Gully Brook. Because the path the oil took was not foreseeable, Pepperell says, it should not face liability under the SPCC regulations; the EAB, it says, was wrong to rely on a different theory involving an alternate pathway that oil might take, but which this oil spill apparently did not take.
The EAB agreed with Pepperell that a discharge into Gully Brook by the particular route taken in this case might not have been within Pepperell’s reasonable anticipation. Nevertheless, the EAB determined that a discharge from the facility in general to navigable waters was reasonably foreseeable, and therefore Pepperell was liable for its failure to prepare and implement an SPCC plan. The EAB found that there was a floor drain in the boiler room, and that the drain directly connected with the sewer conduit, as is common. Thus, the EAB concluded, since it was reasonably predictable that oil which found its way into the floor drain would work its way to navigable waters, it was reasonably foreseeable that an oil spill in the boiler room of the facility might lead to such a discharge.
We cannot say that the EAB addressed itself to the wrong question or that its conclusion is not supported by substantial evidence. The regulations impose a duty to have an SPCC plan whether there is an oil spill or not. The point of the SPCC is to be prophylactic — to prevent oil discharges to navigable waters. The fortuity that the oil spill here did not follow the predicted route does not mean there was no obligation to have a plan. Rather, the EAB’s conclusion that the facility in general exhibited locational and geographical characteristics that made a discharge to a navigable water foreseeable brings the facility within the jurisdiction of the SPCC regulations, and therefore the EAB was correct to impose liability on Pepperell for its failure to prepare and implement an SPCC plan.
Pepperell’s third argument is that even if a discharge into the sewer conduit were reasonably foreseeable, as a general matter there was no reason to expect such a discharge to reach navigable waters. Only an accident of timing and of weather resulted in the discharge to navigable waters that occurred in this spill, it says, and such a coincidence was not reasonably foreseeable. Pepperell is correct that the city sewage system only overflows into Gully Brook during times of high water, such as heavy rain or storms, and otherwise carries its contents to Lewiston’s sewage treatment facility. Indeed, Lewiston was in the midst of upgrading its sewer system, and was permitted by the EPA to discharge sewage to Gully Brook in the interim. It was Pepperell’s ill fortune that its oil spill happened during one of these periods of high water.
The EAB did not overlook this concern and presume foreseeability once it found that there was a foreseeable pathway for the oil to reach the sewage system. Rather, the EAB also concluded that such overflow events occurred on a regular basis, and that a reasonably alert oil facility owner in Lewiston should have been aware that these overflows from the city sewage system into navigable waters occurred regularly. 'Overflows occurred whenever there were heavy rains or storms. In addition, the evidence showed that, regardless of weather, sewage overflows also occurred regularly in the morning hours, when the sewer flow typically runs high. Moreover, in this case, the owners of the oil storage facility not only should have known of the potential for overflow, but were in fact aware of it. Ralph Sawyer, one of Pepperell’s owners, testified that he had seen overflow conditions from the sewage system into Gully Brook “generally early in the morning hours,” and therefore he was aware of the routineness of such events. The mill owners’ awareness of the potential overflow is further corroborated by the fact that on the morning of the spill they checked the overflow to see if the oil had reached Gully Brook.
While the EAB could rationally have found that Lewiston’s failure to have completed an upgraded sewer system should render the risk that sewage would overflow into navigable waters unforeseeable to those hooked up to its sewer lines, nothing compelled the EPA to reach such a result. There is sufficient evidence that a reasonably alert owner would be aware of the possibility of an overflow, and it is reasonable under those circumstances to view the objective of preventing oil spills as best served by requiring such foresight on the part of the owners and operators of oil storage facilities.
B. Liability from October SI, 1996, to July U, 1997
Under the SPCC regulations, owners and operators of oil storage facilities have another safe harbor from the SPCC requirements. Under the EPA regulations, facilities which would “otherwise” be subject to the SPCC jurisdiction are excepted from SPCC regulation where the oil storage capacity of those facilities is under a specified level. Thus, even though Pepperell is otherwise subject to the SPCC requirements, it can avoid those requirements if it can show that its storage capacity fell below the minimum amount required for application of the SPCC regulations. Those regulations provide that their requirements do not apply to facilities where
(i) [t]he underground buried storage capacity of the facility is 42,000 gallons or less of oil, and
(ii) [t]he storage capacity, which is not buried, of the facility is 1,320 gallons or less of oil, provided no single container has a capacity in excess of 660 gallons.
40 C.F.R. § 112.1(d)(2).
As Pepperell points out, the regulations do not provide any further definition of storage capacity. Pepperell makes two arguments. Pepperell argues that by disconnecting the second underground tank from the boiler in late October 1996, it reduced its oil storage capacity to 30,000 gallons, below the 42,000-gallon threshold, and therefore the regulations should be deemed not to apply from that point forward. This is particularly so, it says, since by disconnecting the tank it eliminated any reasonably foreseeable path for any oil to flow to navigable waters, since the only foreseeable path identified by the EPA was through the boiler room. This argument makes a difference to the amount of civil penalty which can be assessed on Pepperell for not having such an SPCC plan because the'penalty amount is tied to the number of days of noncompliance. Second, Pepperell says that if these actions were not sufficient to reduce storage capacity under the regulations, then it was given inadequate notice of what it was expected to do to remove the tank from service.
The EPA took the position, adopted by the EAB, that simply disconnecting a tank does not reduce the storage capacity amount unless and until the tank is properly taken out of service. At a minimum, the EPA says, taking a tank out of service properly means emptying the tank and cleaning it, making alterations to be sure the tank cannot be refilled, and installing a cap or blank flange on the intake pipe to ensure the tank is not usable. The evidence adequately supports the EAB’s determination that the tanks were not taken out of service properly within that definition.
Pepperell’s more serious argument attempts to link the assessment of storage capacity under this exception in the regulations to the reasonable foreseeability of a threat that oil might discharge into navigable waters. Pepperell contends that since the only foreseeable path for oil to reach the navigable waters was through the sewer by way of the boiler room, disconnecting the tank from the boiler should suffice to reduce the relevant storage capacity, since it proportionately reduces the risk of harmful discharge. Simply put, if the oil could not get to the boiler room from the second tank, the storage capacity of that tank did not fall within SPCC jurisdiction, because a discharge to navigable waters from the tank was no longer reasonably foreseeable.
The administrative law judge basically adopted this position, but the EAB rejected it. Instead, the EAB interpreted the determination of reasonable foreseeability and the assessment of storage capacity to be two distinct, sequential inquiries, the latter exception being considered only once the requirements of the former were met. Looking to the structure of the regulations, the EAB reasoned that the regulations pose a two-tiered test, not an interrelated one. As the EAB put it,
While related, these two elements are neither interdependent not intertwined. Importantly, the only quantitative dimension to the first element is the requirement that a discharge of a harmful quantity be expected. The second element adds the idea that even if a harmful discharge can be expected, a facility may still escape regulation if its storage capacity is sufficiently small.
The choice of terms and the structure of the regulations reflect the Agency’s judgment that facilities that have a large storage capacity and a potential for harmful discharge must have SPCC plans, whether or not all the available capacity is in use and irrespective of the discharge potential of individual storage units within the facility.
In re Pepperell Assocs., Final Dec. at 22, 2000 WL 576426 (EPA EAB May 10, 2000) (emphasis in original).
While Pepperell’s reading of the regulations is reasonable, the terms of the regulations do not compel that reading. We cannot say that the EAB’s interpretation of the regulatory scheme is contrary to the language of the regulations, nor that it is arbitrary. As an initial matter, the EAB’s reading provides for ease in administration. Indeed, a panoply of problems might arise if storage capacity could be manipulated with such ease as Pepperell suggests. It is not unreasonable for the agency to assess storage capacity in terms of the total potential storage capacity of the existing physical plant absent a significant structural modification, thereby ensuring a stable assessment of storage capacity for a given facility. In addition, the EAB’s construction of the regulations may also reflect the view that the presence of underground storage tanks in proximity to a foreseeable route to navigable waters is itself a potential threat, or at least sufficiently so not to apply an exception to the general rule that an SPCC plan is required unless the tanks are truly taken out of service. We must defer here to the agency’s expertise, and to its construction of its own regulations.
As to Pepperell’s argument that it lacked notice, it was not raised in a timely fashion before the agency, and so is not before us for review. E.g. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (discussing the general rule “that courts should not topple over administrative decisions unless the administrative body ... has erred against objection made at the time appropriate under its practice”); Khalaf v. INS, 909 F.2d 589, 592 (1st Cir.1990) (explaining that issues not raised before an administrative appeals board cannot be adjudicated in the course of judicial review). As we have noted, “this rule preserves ‘judicial economy, agency autonomy, and accuracy of result’ by requiring full development of issues in the administrative setting to obtain judicial review.” Northern Wind, Inc. v. Daley, 200 F.3d 13, 18 (1st Cir.1999) (citations omitted).
C. The Above-Ground Tank and the Failure to Amend the SPCC Plan
Next, Pepperell contends that the EAB erred in applying the standards and deadlines for filing an amended SPCC plan upon the modification of an existing facility in regard to Pepperell’s construction of the above-ground tank in October 1997, rather than the standards and deadlines applicable to a new storage facility. Under the regulations there is less time provided to. prepare and implement SPCC plans for modifications to pre-existing facilities than for new facilities. Compare 40 C.F.R. § 112.3(b) (plan must be submitted within six months and fully implemented within a year of when new facility begins operation), with 40 C.F.R. § 112.5(a) (plan must be amended whenever existing facilities modified and such amendments must be fully implemented within six months of the modification). The EAB held Pepperell liable under 40 C.F.R. § 112.5 for failing to prepare an “amended” SPCC Plan contemporaneously with the installation in October 1997 of the above-ground storage tank, and for not implementing the plan within six months of that installation. The facts adequately support the EAB’s factual determinations as to the timing of the events. At issue is whether the regulations for modifications to existing facilities were the appropriate standards to apply.
Pepperell argues that the above-ground tank is properly considered a new facility. Pepperell says that it removed all three of its underground storage tanks in July 1997, and had no storage capacity whatsoever until it installed this new above-ground storage tank on October 16, 1997. At a minimum, Pepperell contends, this gap in time means that its above-ground tank was a new facility, and so the EAB ought to have, assessed Pepperell’s compliance with the SPCC regulations under the deadlines for new facilities. Pepperell says it met those deadlines, which allow it six months from the installation of the tank to file a new plan, and one year from its installation to implement that plan. It is unfair, Pepperell says, to impose a penalty on it for not filing an amendment to an SPCC plan when it believed that it was under no obligation to file the original SPCC plan in the first instance, much less an amended one. Pep-perell argues that, whether or not it was obliged to file an SPCC plan before the three underground tanks were removed, its only obligation with regard to the above-ground tank was to file a timely plan once its facility became operational, see 40 C.F.R. § 112.3, and that was when it installed the new tank.'
To the extent Pepperell’s argument rests on the premise that no plan was required before the final removal of all three underground tanks, we have rejected that premise. Our sole concern on this issue is with the period of time between the removal of the three underground tanks in July and the installation of the above-ground tank in October.
The EAB viewed Pepperell’s argument as an attempt to make an end run around the regulations governing modifications to existing facilities. In the EAB’s view, a three month gap in time between pulling out old tanks and installing new ones, particularly where the length of that gap was controlled by the owners or operators of an existing facility, could not suffice to convert an existing facility to a new one. On appeal, Pepperell responds that leaving it to the EAB’s discretion to determine what period is a sufficient gap is entirely arbitrary.
Pepperell’s argument is not persuasive. Perhaps in a different case, with a gap of a much longer period of time between the removal of storage capacity from service and the installation of new storage capacity, it would be arbitrary to consider the newly installed capacity a modification of an existing facility, but we cannot say that about, the determination here. The purpose of providing a more generous time line for new facilities is to recognize that new facilities may face challenges not faced by existing operations. Pepperell was hardly in that position. Further, the two acts — -pulling out old tanks and installing a new one — are not unconnected. This is New England. The removal of a fuel source for heating inevitably means its replacement with another source. It would be odd if such a replacement scheme over the course of a single summer could turn an existing facility into a new one. We do not think the EAB’s conclusion that the gap here was part of the ongoing process of modification is either arbitrary or unreasonable.
Pepperell makes one more stab. Even if the EAB is generally correct that this was not a new facility but a modification, it says, the change does not “materially affect[ ] the facility’s potential for discharge of oil into or upon the navigable waters of the United States,” see 40 C.F.R. § 122.5(a), and therefore the obligation to file an amended SPCC plan is not triggered. This argument is frivolous. First, the record shows that, as the EPA regional enforcement coordinator testified, above-ground tanks “have a much greater capacity for a catastrophic spill because if the tank ruptures, there’s no surrounding soil to contain the oil, as in the underground storage tank scenario.” The safe harbor regulations also illustrate the added risk created by above-ground tanks, exempting underground tanks from the SPCC requirements for up to 42,000 gallons of storage capacity, while only exempting above-ground tanks up to 1320 gallons of capacity. Here the above-ground tank was 20,000 gallons. In any case, 40 C.F.R. § 112.5 presumes that an existing facility already has an SPCC plan in place when it limits the amendment requirement to material changes; here Pepperell had no such plan until more than six months after the modification. The EAB’s conclusion that this was not a new facility, and therefore that Pepperell was liable for failing to implement an amended SPCC plan in a timely fashion, was hardly arbitrary.
D. The Calculation of Penalties
Finally, in addition to challenging its liability under the SPCC regulations on the first two counts, Pepperell contests the amount of the penalties assessed by the EAB on each of the three counts. Because we have affirmed Pepperell’s liability on the first two counts, we consider only those arguments that do not depend on Pepperell’s assertion that it was not liable.
The Clean Water Act sets out the factors to be considered in setting the amount of a civil penalty for its violation. In determining the amount of a penalty under the Act, the body administering the statute and imposing the penalty shall:
consider the seriousness of the violation or violations, the economic benefit to the violator, if any, resulting from the violation, the degree of culpability involved, any other penalty for the same incident, any history of prior violations, the nature, extent, and degree of success of any efforts of the violator to minimize or mitigate the effects of the discharge, the economic impact of the penalty on the violator, and any other matters as justice may require.
33 U.S.C. § 1321(b)(8).
Judicial review of penalties imposed under the Clean Water Act are reviewed for “abuse of discretion.” 33 U.S.C. § 1321 (b)(6)(G)(ii). The scope of that review is very limited. E.g., All Regions Chemical Labs, Inc. v. United States Environmental Protection Agency, 932 F.2d 73, 75 (1st Cir.1991); Newell Recycling Co. v. United States Environmental Protection Agency, 231 F.3d 204, 208 (5th Cir.2000). Courts must give deference to the EPA’s “highly discretionary calculations that take into account multiple factors” to set penalties under the Clean Water Act. Tull v. United States, 481 U.S. 412, 427, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987). Because of that deference, our discussion of the penalty amounts is brief.
On Count One, the EAB imposed a penalty of $22,133, adding $6,748 to the administrative law judge’s assessment. Pepperell argued to the EAB that its penalty should be reduced because the company lacked environmental expertise and cooperated in the cleanup efforts once the spill happened. The EAB rejected this argument. First, the EAB pointed out that the company was aware that its oil storage tanks were regulated by the Maine Department of Environmental Protection, and therefore found the company was on notice that its tanks could cause environmental contamination. On this basis, the EAB concluded, Pepperell should have inquired about whether it was also subject to EPA regulation. As to its efforts to cooperate, the EAB adopted the view of the administrative law judge that Pepperell’s efforts were too little, too late. These are reasoned views as to which we defer.
On the second count, the EAB assessed a penalty of $8,855 for failing to prepare and implement in a timely manner an amended SPCC plan. Pepperell argues that the EAB did not consider mitigating factors, such as its ignorance of the applicable regulations and its efforts to comply once it became aware of them. The opinion of the EAB belies Pepperell’s claim that these factors were not considered. Indeed, the EAB found that “[t]his is a case not about regulatory confusion, but about indifference.” In re Pepperell, Final Dec. at 42. Again, we give deference.
Finally, as to the third count, the EAB assessed a penalty of $12,655 for the harmful discharge of oil into or upon a navigable water. Pepperell contends that the statute requires consideration of “other matters as justice may require,” that its partial reimbursement to the state of Maine for the cleanup is such a factor, and that it justifies reducing the penalty. The administrative law judge agreed with Pep-perell on this point, and the EAB reversed. The EAB’s decision addressed this issue at length, and its discussion shows that it adequately considered Pepperell’s arguments and had a reasoned basis for its decision. See In re Pepperell, Final Dec. at 44-46. Again, we defer.
We do not suggest that a reasonable person could not have viewed the penalty issue as Pepperell did. But its arguments are better made to the agency than to a reviewing court, and here the agency rejected the arguments for adequate reasons.
Accordingly, we deny Pepperell’s petition for review of the decision of the EAB on all points. So ordered.
. There was also a floor drain on the boiler room floor that connected directly to the sewer conduit, as is common in buildings of the age of the mill, although the oil did not actually take this path.
. The EAB has addressed the end of ensuring a stable assessment of storage capacity in a different but also important context: capacity, the EAB determined, comes on line when the storage tank is first installed, not when it is connected to piping or actually filled. See In re Ashland Oil, Inc., 4 E.A.D. 235, 249, 1992 WL 235125 (EPA 1992).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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WARDLAW, Circuit Judge.
The Alaska Department of Environmental Conservation (“ADEC”) and Teck Comineo Alaska, Inc. (“Comineo”) petition for review of three enforcement orders entered by the United States Environmental Protection Agency (“EPA”), which effectively invalidated a Prevention of Significant Deterioration (“PSD”) permit issued by ADEC to Comineo. Petitioners challenge the EPA’s authority to issue these orders, and argue that the EPA abused its discretion in finding that ADEC’s Best Available Control Technology (“BACT”) determination did not comply with the requirements of the Clean Air Act and Alaska’s State Implementation Plan (“SIP”). We find that the EPA acted within its authority and, further, that it did not abuse its discretion.
I. Background
The Clean Air Act (“the Act”), 42 U.S.C. §§ 7401-7671q, establishes a program for controlling and improving the nation’s air quality through a system of shared federal and state responsibility. The Act requires states to submit for the EPA’s approval a state implementation plan that provides for attainment and maintenance of the national ambient air quality standards (“NAAQS”) promulgated by the EPA. 42 U.S.C. § 7410.
The Act’s Prevention of Significant Deterioration program controls the level of degradation in “clean air areas” of the nation by requiring a pollutant-emitting source to obtain a permit before construction. See 42 U.S.C. §§ 7470-7492. In implementing the PSD program and permitting process, states can either operate within the federal PSD program, in which the EPA is the PSD permit issuer, or include a PSD program within their own EPA-approved state implementation plan. 42 U.S.C. §§ 7410(a)(2)(C), 7471.
Alaska is a “clean air area” under the Act — that is, its air quality regions are cleaner than the national standards with respect to ozone and nitrogen dioxide. Under Alaska’s State Implementation Plan, which the EPA accepted as meeting the Act’s requirements in 1983, Alaska, through the Alaska Department of Environmental Conservation, is the PSD permit issuer. See Approval and Promulgation of Implementation Plans; Alaska, 48 Fed.Reg. 30623 (July 5, 1983), as amended at 56 Fed.Reg. 19284 (April 26, 1991). For new and modified sources, the Alaska SIP requires “a demonstration that the proposed [emissions control] limitation represents the best available control technology” before ADEC will issue a permit. Alaska Admin. Code tit. 18, § 50.310(d)(3) (1997).
Comineo operates the Red Dog Mine facility (“the Mine”), a major producer of zinc concentrates, in partnership with the Northwest Arctic Native Association, an Alaska corporation. The Mine is approximately 100 miles north of the Arctic Circle and about five miles west of the Noatak National Preserve. The closest residential communities are the native villages of Ki-valina and Noatak.
Due to its remote location, the Mine requires an independent, on-site power source. The current power supply for the Mine consists of six diesel-fired Wartsila 5000-watt generators, labeled “MG-1” through “MG-6,” which were constructed under a 1988 PSD permit. In April 1996, Comineo began its Production Rate Increase (“PRI”) project to boost the Mine’s output of zinc and zinc concentrates. Comineo determined it needed more electricity at the Mine to power the additional mining equipment.
In June 1998, Comineo submitted an application to ADEC for a new PSD permit, requesting permission to increase the amount of nitrogen oxides (“NOx”), a regulated air pollutant, from its MG-5 generator. Cominco’s application proposed the use of “Low NOx” as BACT for MG-5. Low NOx is a process that uses high-combustion air temperatures to better atomize toxic particles, thereby reducing the amount of NOx released into the environment. A review by AD.EC, however, reached the contrary conclusion that Selective Catalytic Reduction (“SCR”), a process in which exhaust is injected with ammonia or urea and then combined with a catalyst, was BACT for MG-5.
Comineo responded by amending its application in April 1999. As an alternative to installing SCR on MG-5, Comineo volunteered to install the less costly Low NOx technology on all six of its existing generators, including those not subject to BACT standards, and on a proposed seventh generator, “MG-17.”
In its May 4,1999 Preliminary Technical Analysis Report, ADEC accepted Comin-co’s proposal because it would reduce the total NOx output from the Mine to a level comparable to that which would result were SCR installed in only the MG-5 and MG-17 generators.
In July 1999, the EPA entered the discussion over Cominco’s application at the urging of the National Park Service, which had expressed concern that the “[njitrogen oxide emissions ... could affect vegetation at Cape Krusenstern National Monument and Nqatak National Preserve.” In a letter to ADEC, the EPA stated that SCR was the best available control technology for the MG-5 and MG-17 generators, and that “the PSD program does not allow the imposition of a limit that is less stringent than BACT even if the equivalent emission reductions are obtained by imposing new controls on other emission units.”
On September 3, 1999, ADEC issued a Final Technical Analysis Report and permit decision, concluding that SCR was not economically feasible and that Low NOx was instead BACT. The EPA responded with a review of ADEC’s report, asserting that ADEC’s cost-effectiveness estimate for SCR was “well within the range that the EPA considers reasonable,” and that Comineo had not adequately demonstrated why SCR was economically infeasible.
ADEC, Comineo, and the EPA met to discuss the pending PSD permit, agreeing to install Low NOx on MG-1, MG-3, MG-4, and' MG-5, but without agreeing on BACT for MG-17.
After further unsuccessful negotiations, the EPA issued a “Finding of Noncompliance Order” on December 10, 1999, stating that ADEC’s authorization of Cominco’s construction and installation of new equipment was not in compliance with the Clean Air Act and the Alaska SIP. Pursuant to Sections 113(a)(5) and 167 of the Act, 42 U.S.C. §§ 7413(a)(5) and 7477, the EPA ordered ADEC to withhold issuance of Cominco’s PSD permit.
Later that same day, however, in disregard of the EPA’s order, ADEC issued the PSD permit along with a second Final Technical Analysis Report.
On February 8, 2000, the EPA sent a letter to ADEC with a formal finding that the December 10, 1999 report and PSD permit failed to comply with federal and state PSD requirements. On the same day, the EPA issued a second order to Comineo preventing the company from beginning construction on the MG-17 generator until Comineo had demonstrated to the EPA’s satisfaction compliance with the Act and the SIP.
The EPA’s third order, dated March 7, 2000, modified the February 8, 2000 order to allow Comineo to engage in summer-dependent construction activities.
On April 25, 2000, the EPA withdrew its December- 10, 1999 order prohibiting ADEC from issuing the permit. In an accompanying letter, however, the EPA emphasized that its findings of noncompli-anee in the December 10, 1999 and February 8, 2000 orders remained unchanged.
ADEC and Comineo petition this court for review of the December 10, 1999 Finding of Noneompliance and Order; the February 8, 2000 Administrative Order; and the March 7, 2000 Amended Administrative Order. Petitioners claim that the EPA exceeded its authority by issuing enforcement orders invalidating ADEC’s issuance of Cominco’s PSD permit, and that ADEC acted within its discretion when making its BACT determination.
II. Procedural History on Appeal and Jurisdiction
The EPA initially challenged our subject matter jurisdiction in a motion to dismiss, which we denied without prejudice, and again in conjunction with the merits of the appeal. In an order dated March 27, 2001, Alaska v. United States EPA, 244 F.3d 748 (9th Cir.2001), we determined that we have jurisdiction pursuant to Section 307(b)(1) of the Clean Air Act because the EPA’s Administrative Orders to ADEC and Comineo constitute final agency action. 42 U.S.C. § 7607(b)(1) (granting jurisdiction to review final actions of the Administrator). Applying the test in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), we held that the EPA’s actions were final for the purposes of appellate review because the EPA’s findings represented its “final position on the factual circumstances,” the orders had determined the rights and obligations of the parties, and legal consequences would follow if Comineo chose to disregard the orders and commence construction. Alaska, 244 F.3d at 750.
To address Petitioners’ contention that the record was incomplete, we also directed the EPA to submit a complete administrative record, withdraw its orders, or file an action in district court. The EPA submitted a declaration that the record was, in fact, complete. On August 3, 2001, we directed Petitioners to respond to the EPA’s declaration. In their responses, all the parties effectively agreed that the record as it stood was adequate to resolve the issues on appeal.
On February 28, 2002, in light of the parties’ agreement as to the completeness of the record, we requested supplemental briefing on the question of the EPA’s authority to issue the orders. Having resolved these preliminary disputes, we now turn to the merits of the appeal.
III. Authority of the EPA
We agree with the EPA that the plain text, structure, and history of the Act compel the conclusion that the administrative orders fell within the EPA’s enforcement and oversight authority.
Under the traditional method of statutory construction, the interpretation of a statute “begin[s] with the plain meaning of its language.” In re Bonner Mall Partnership, 2 F.3d 899, 908 (9th Cir.1993). “Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (internal quotation marks omitted).
The EPA’s enforcement powers are outlined in Section 113(a)(5), 42 U.S.C. § 7413(a)(5), and Section 167, 42 U.S.C. § 7477, of the Act.
Section 113(a)(5) provides:
Whenever, on the basis of any available information, the Administrator finds that a State is not acting in compliance with any requirement or prohibition of the chapter relating to the construction of new sources or the modification of existing sources, the Administrator may—
(A) issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies;
(B) issue an administrative penalty order in accordance with [42 U.S.C. § 7413(d)], or
(C) bring a civil action under [42 U.S.C. § 7413(b)].
42 U.S.C. § 7413(a)(5). The referenced “chapter” includes the PSD permit program in “Part C — Prevention of Significant Deterioration of Air Quality.” See 42 U.S.C. § 7475; H.R.Rep. No. 101-490(1), pt. 10, at 391 (1990) (Section 113(a)(5) “authorizes enforcement actions where a State is not acting in compliance with any requirement of Part C or Part D of Title I”).
Under Section 167, the Administrator “shall ... take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part....” 42 U.S.C. § 7477. “This part” refers to Part C, which establishes the PSD program.
The PSD program is implemented through a permitting system for new and modified “major emitting facilities” in clean air areas. 42 U.S.C. §§ 7475, 7479(1). To receive a permit, the applicant must fulfill the “preconstruction requirement” that a “proposed facility [be] subject to the best available control technology for each pollutant subject to regulation....” 42 U.S.C. § 7475(a)(4). Thus, subjecting a facility to BACT is both a “requirement ... of the chapter relating to the construction of new sources or the modification of existing sources” under Section 113(a)(5), and a “requirement[ ] of this part” under Section 167. See S.Rep. No. 95-127, at 12 (1977), reprinted in 3 A Legislative History of the Clean Air Act Amendments of 1977, at 1386 (Comm. Print 1978) (“[T]here is a national requirement that each new major facility to be located in a clean air area install the best available control technology.”).
BACT is defined in Section 169(3) as
an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this chapter emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility....
42 U.S.C- § 7479(3). Here, ADEC, as the “permitting authority,” made the initial BACT decision. Because the EPA based its orders on the finding that ADEC had not complied with the BACT requirement, the orders were authorized by the plain language of Section 113(a)(5), as “order[s] prohibiting the construction or modification of any major stationary source in any area to which such requirement applies,” and of Section 167, as orders “necessary to prevent the construction or modification of a major, emitting facility which does not conform to the requirements of this part.”
The structure and legislative history of the Act further support the EPA’s authority to issue the enforcement orders. Since the original Clean Air Act of 1963, state and local governments have had “primary responsibility” for “the prevention and control of air pollution at its source.” Train v. NRDC, 421 U.S. 60, 64, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); 42 U.S.C. § 7401(a)(3). Following disappointing state response, to- air pollution concerns, Congress has consistently increased over time federal authority in pollution control.
In 1970, Congress amended the Act, Pub.L. 91-604, 84 Stat. 1676, “in order to assure that the requirements of the act would be met if the State failed to adopt, implement, or enforce the necessary measures.” S.Rep. No. 95-127, at 326 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1405; see Train, 421 U.S. at 64, 95 S.Ct. 1470. Fundamentally restructuring the Act “to create an aggressive federally-orchestrated program for air pollution control,” the amendments directed the EPA to publish NAAQS and the states to develop implementation plans to meet them. William V. Luneburg, Clean Air Act Implementation and the Impact of Whitman v. American Trucking Associations, Inc., 63 U. Pitt. L.Rev. 1, 5 (2001); 42 U.S.C. § 7410(a)(1).
In 1977, when it became clear that many areas of the country would not attain the NAAQS by the 1970 Amendments’ statutory deadline, Congress extended the deadline and amended the Act, dividing the country into nonattainment areas and clean, air areas, and establishing the Prevention of Significant Deterioration program to prescribe allowable levels of air quality degradation in clean air areas. Douglas R. Williams, Cooperative Federalism and the Clean Air Act: A Defense of Minimum Federal Standards, 20 St. Louis U. Pub.L.Rev. 67, 76 (2001). Congress recognized that the states experienced internal industry “pressure ... to relax their standards with the threat of industrial relocation in other, more permissive States.” S.Rep. No. 95-127, at 136-37 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1215. Overarching federal leadership provided “protection for States exercising their right to maintain clean air.” Id.
The 1990 Amendments strengthened the EPA’s enforcement authority in cases where states fail to enforce SIPs or permit requirements. See H.R.Rep. No. 101-952, at 348, 358 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3731, 3741. Amendments to Section 113(a)(5) extended enforcement authority to include not only failure to comply with state implementation plan provisions, but also a state’s failure to comply with “any requirement or prohibition” of the Act relating to new or modified sources. H.R.Rep. No. 101-490(1), pt. 10, at 391.
Thus, although the state has discretion to make BACT determinations as the permitting authority, the Act provides for EPA enforcement when the state issues a permit based on an improper determination. See H.R. Rep. 95-564, at 152 (1977), reprinted in 3 A Legislative History of the Clean Air Act Amendments of 1977, at 533 (Comm. Print 1978) (“The Administrator shall issue orders and seek other action to prevent the issuance of an improper permit.”). Therefore, based upon the plain language and the legislative history of the Act and amendments to it, we hold that the EPA has the ultimate authority to decide whether the state has complied with the BACT requirements of the Act and the state SIP.
ADEC and Comineo contend that the EPA exceeded its authority in issuing the three administrative orders predicated on a finding that ADEC’s BACT determination was inadequately justified. They argue that because Section 169(3) gives ADEC, the “permitting authority,” discretion to determine BACT, the EPA lacked authority to veto ADEC’s judgment based on a mere difference of opinion as to which technology was BACT.
This argument is without merit because neither Section 113(a)(5) nor Section 167 contains any exemption for requirements that involve the state’s exercise of discretion. Nothing in the BACT definition of Section 169(3) limits the EPA’s authority. It does not follow from the placement of initial responsibility with the state permitting authority that its decision is thereby insulated from the oversight and enforcement authority assigned to the EPA in other sections of the statute.
Petitioners further contend that the EPA’s authority extends only to determining whether ADEC satisfied what they term “objective requirements” listed in the Act and the SIP. However, it is not clear what Petitioners mean by “objective requirements,” as opposed to, presumably, discretionary requirements. Instead of defining such requirements, Petitioners offer a non-exhaustive list, including: the requirement of a PSD permit, the inclusion of a BACT determination in the permit, compliance with federally set limits on emissions, and consideration of energy, environmental, economic, and other costs. Whereas failure to comply with any of the foregoing objective requirements would justify the EPA’s issuance of enforcement orders under Sections 113(a)(5) and 167, Petitioners argue, the state’s BACT determination itself is not subject to EPA approval or veto.
In support of this distinction, Petitioners cite United States v. Solar Turbines, Inc., 732 F.Supp. 535 (M.D.Pa.1989), in which the district court analyzéd whether a source’s actions constituted a violation of the Act:
[A] violation is to be assessed against objective standards, namely the source’s failure to apply for a permit or receive a permit prior to construction; failure to supply information requested of it by the issuing authority, or failure to comply with specific quantifiable air quality standards or restrictions on emission levels.
Id. at 539. However, this case sheds no light on Petitioners’ argument because it examined the requirements that a source must meet under the Act. Here, the question presented is what requirements the state must meet.
In a move that seems to undermine their position, Petitioners also quote a Legal Opinion by the EPA’s Office, of General Counsel to define what they mean by “objective requirements:”
[I]n the case of a decision applying best available control technology (BACT) under Section 165(a)(4) for PSD, if a state has met all procedural norms, considered all available control technologies, and given a reasoned justification of the basis for its decision, EPA has no grounds on which to challenge a final substantive state decision that does not violate such objective standards.
(emphasis added).
As the emphasized portion demonstrates, this Opinion actually supports the EPA’s authority to determine the reasonableness or adequacy of the state’s justification for its decision, which is exactly what the EPA did here. The cover letter to the December 10, 1999 Finding of Noncompliance and Order stated the EPA’s belief that:
ADEC’s own analysis supports the determination that BACT is selective catalytic reduction (SCR) ... ADEC’s decision in the proposed permit therefore is both arbitrary and erroneous.... [T]he State’s record reflects that the cost-effectiveness and the collateral issues of energy, environmental, or economic impacts, and other costs, do not justify failure to select SCR as BACT in this case.
Whatever Petitioners mean by “objective -requirements,” they must concede that the provision of a reasoned justification is one of them. We conclude, therefore, that the EPA had the authority to issue findings and orders on the ground that the State failed to provide an adequate justification for its BACT decision.
IV. Validity of the Orders
Petitioners alternatively argue that the EPA erred in finding that ADEC was not in compliance because ADEC’s BACT determination fulfilled all requirements' of the Act. The EPA maintains that ADEC’s determination that Low NOx was BACT was “nothing short of incomprehensible, unreasoned, and unsupported.”
Under the Act, we may reverse a final action by the EPA if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9)(A); Exxon Mobil Corp. v. United States EPA 217 F.3d 1246, 1248 (9th Cir.2000). Upon review of the administrative record, we conclude that the EPA did not act arbitrarily or capriciously in issuing its Findings of Noncompliance and Orders prohibiting construction of the MG-17 generator until ADEC produced a valid PSD permit.
A common approach to determining BACT is the “top-down” method, which ADEC purported to apply. Under this method, as detailed in the EPA’s New Source Review Workshop Manual (1990), the applicant ranks all available control technologies in descending order of control effectiveness. The most stringent technology is BACT unless the applicant can show that it is not technically feasible, or if energy, environmental, or economic impacts justify a conclusion that it is not achievable. .Citizens for Clean Air v. United States EPA 959 F.2d 839, 845-46 (9th Cir.1992). If the top choice is eliminated, then the next most stringent alternative is considered, and so on. The most effective control option not eliminated is BACT. Id.
Although the top-down approach is not mandated by the Act, if a state purports to follow this method, it should do so in a reasoned and justified manner. ADEC’s December 10 Technical Analysis Report rejected SCR because it would have adverse economic -impacts on the Red Dog Mine. The report states that there are several situations in which a permitting authority can reject a control option for economic considerations: (1) when the applicant, i.e., Comineo, shows that the costs of the control are disproportionately high compared to the cost of control in recent permit decisions; (2) when the cost-effectiveness of the control is outside the range of costs being borne by similar sources in recent BACT determinations; and (3) when the applicant shows the cost of the control option will cause adverse economic impact to the facility.
ADEC’s report demonstrates, however, that none of these situations were present. As to the first situation, the report reveals that there were no recent permit decisions involving BACT determinations for diesel engines used as primary power generators.
As to the second, the cost-effectiveness of recent NOx control BACT decisions ranged from $0 to $7,000 per ton of NOx removed. According to ADEC’s estimate, the cost-effectiveness of SCR was $2,100 per ton of NOx removed, a cost well within the applicable range.
Finally, ADEC attempted to determine whether the costs of SCR would be excessive by analogizing the costs of the MG-17 generator to the costs of other electric utilities. ADEC began with the assumption that SCR for MG-17 would cost 3 cents per kilowatt-hour. It reasoned that if Comineo “did not have a powerhouse, it would probably buy power from a rural Alaska utility. From a cursory review, it appears that the average cost of electricity in rural-Alaska is approximately 15$ per kilowatt hour.” Because a 3$ increase would “be equivalent to a 20% increase in the electric rate of the facility,” ADEC concluded that “this is a disproportionate cost increase when viewed as an electric utility.”
This rationale is unfounded, however, because Comineo does not, in fact, buy power from an electric utility. Therefore, the use of the 15$ figure is not justified. ADEC itself acknowledges the flimsiness of its own hypothetical in the report:
Another perhaps better way to determine if the cost of BACT is excessive, is for the applicant to present detailed financial information showing its effect on the operation. However, the applicant did not present this information. Therefore, no judgment can be made as to the impact of a $2.1 million control cost on the operation, profitability, and competitiveness of the Red Dog Mine.
ADEC’s report demonstrates that Com-ineo failed to show that any of the situations in which a control option can be rejected for cost considerations was applicable. Rather than concluding, logically, that Comineo had failed to show that SCR could be eliminated, ADEC instead invented its own reason for the economic infeasibility of SCR. ADEC described the Mine’s “dramatic” reversal of unemployment rates in its borough:
Before the Mine opened in 1990, borough wages were well below state average wages.... The Mine now provides high paying year round employment. ... Cominco’s contractors, vendors, and wages have boosted the borough’s private sector economy.
... With government support and endorsement of Cominco’s operations, including the Production Rate Increase Project, the Red Dog Mine will continue to influence and benefit the residents and economy of this region.
ADEC concluded that it had chosen, as the “foremost consideration to judge economic impacts of SCR,” the “direct cost of SCR technology and its relationship to retaining the Mine’s world competitiveness as it relates to community socioeconomic impacts.” To “support Cominco’s[PRI Project] ... and its contributions to the region,” ADEC rejected SCR “based on excessive economic cost — $2.9 million capital cost, with annualized costs approaching $635,000.” The report fails to explain how the costs of SCR would affect the Mine’s world competitiveness or why the capital cost is excessive.
ADEC’s apparent motivation for the elimination of SCR — appreciation for Com-inco’s contribution to the local economy — is not an accepted justification in the top-down approach. Worse still, it is uncomfortably reminiscent of one of the very reasons Congress granted EPA enforcement authority — to protect states from industry pressure to issue ill-advised permits. See S.Rep. No. 95-127, at 136.
Because ADEC’s report shows that (1) Comineo failed to meet its burden of demonstrating that SCR was economically infeasible; and (2) ADEC failed to provide a reasoned justification for its elimination of SCR as a control option, the EPA did not act arbitrarily and capriciously in concluding that ADEC abused its discretion by making an internally inconsistent and unreasonable BACT determination. The petition for review is therefore
DENIED.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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MAHONEY, Circuit Judge:
Plaintiffs-appeEants-cross-appellees the State of New York and Thomas C. Jorling, as trustee of the State of New York’s natural resources (collectively “New York”), appeal from a final judgment entered June 20, 1995 in the United States District Court for the Southern District of New York, Charles L. Brieant, Judge, that granted summary judgment to defendants-appellees-cross-appel-lants Lashins Arcade Company and Lashins Arcade Corporation (collectively “Lashins”) and denied New York’s motion for summary judgment in this action brought under § 107(a) of the Comprehensive Environmental Response, Compensation and Liabiliiy Act of 1980, as amended (“CERCLA”), 42 U.S.C. § 9607(a), the common law of public nuisance, and § 841 of the New York Real Property Actions and Proceedings Law (which provides for a statutory action for nuisance), and for unjust enrichment and restitution. The complaint sought, inter alia, damages for costs New York incurred investigating and cleaning up the release of tetrachloroethene, or perchloroethylene (“PCE”), and its breakdown compounds, trichloroeth-ene (“TCE”), 1,2-dichloroethene (“DCE”), and vinyl chloride, into the groundwater in the vicinity of the Bedford Village Shopping Arcade (the “Arcade”) in Westchester County, New York. PCE is a chemical used as a solvent in dry cleaning operations.
The district court awarded Lashins summary judgment based upon the third-party defense provided by § 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3), and dismissed the action “as against the Lashins defendants.” New York v. Lashins Arcade Co., 856 F.Supp. 153, 158 (S.D.N.Y.1994). The court subsequently denied New York’s motion to strike a jury demand made by defendant Rocco Astrologo, New York v. Lashins Arcade Co., 881 F.Supp. 101 (S.D.N.Y.1995), and denied New York’s motion for reargument on the jury trial issue, New York v. Lashins Arcade Co., 888 F.Supp. 27 (S.D.N.Y.1995).
On this appeal, New York contests not only the dismissal of its claims against Lash-ins, but also the interlocutory decisions of the district court with respect to the jury trial issue. Lashins cross-appealed from the district court’s approval of consent decrees entered between New York and the other defendants, which settled New York’s claims against those defendants, but has since withdrawn its cross-appeal.
We affirm the judgment of the district court.
Background
This appeal involves the release of hazardous substances at the Arcade, which resulted in groundwater contamination in the area. The Arcade, a 6,800 square foot one-story building housing six retail stores, was built in 1955, and was owned by Holbrook B. Cush-man until his death in 1966. Lashins Arcade Co., 856 F.Supp. at 155. The property was then held in trust by Cushman’s widow, Beatrice Cushman, and the Bank of New York until 1972. Id. Cushman leased a store in the Arcade to Astrólogo from about 1958 to 1963, where Astrólogo operated a dry cleaning business. Id. The store was next leased to defendant Rocco Tripodi (with whom defendant Bedford Village Cleaners, Inc. is affiliated) in 1963, who maintained the dry cleaning business at the Arcade until 1971. Id. During this period, Tripodi dumped powdered wastes from his dry cleaning machines, which contained the volatile organic compound (“VOC”) PCE, on the ground outside the Arcade behind his store. In December 1971, Tripodi moved his dry cleaning business out of the Arcade, and no other dry cleaning establishment has operated there since that time. In November 1972, the trust sold the Arcade to Miriam Baygell, who owned the property until her death in 1977, when it was inherited by her husband, Milton Baygell. Id.
In 1978, the Westchester County Department of Health (the “WCDOH”) conducted a countywide survey regarding possible groundwater contamination by VOCs. Id. The survey found elevated VOC levels in the hamlets of Katonah, Armonk, and Bed-ford Village. Id. Further sampling of private wells in Bedford Village conducted by the WCDOH in 1979 revealed groundwater contamination in an area southeast of the Arcade. These samples contained high concentrations of PCE and its breakdown compounds, TCE and DCE. The WCDOH issued “boil water” notices to affected homeowners. Id.
In 1982, the New York State Department of Environmental Conservation (the “NYS-DEC”) authorized state funds for an investigation and remediation of the groundwater problem at the Arcade and the nearby Hunting Ridge Shopping Mall pursuant to § 27-1301 et seq. of the New York Environmental Conservation Law. Lashins Arcade Co., 856 F.Supp. at 155. The investigations conducted from 1982 to 1986 revealed fluctuating levels of VOC contamination in the wells adjacent to the Arcade. Id. at 155-56. A “Phase I” investigation, completed in June 1983 by the Wehran Engineering Company CWehran”), reported that the highest level of contamination in the Arcade was found in the area formerly occupied by the dry cleaning establishment.
Following the Phase I investigation, the “Bedford Village Wells” site was listed on the New York State Registry of Inactive Hazardous Waste Disposal Sites (the “Registry”). The Registry is published annually by the NYSDEC pursuant to § 27-1305(1) of the New York Environmental Conservation Law, which requires the NYSDEC annually to “transmit a report to the legislature and the governor identifying every inactive hazardous waste disposal site in the state known to the [NYSDEC].” Id. (McKinney 1996 Supp.). The registered sites are prioritized based upon “the relative need for action at each site to remedy environmental and health problems resulting from the presence of hazardous wastes at such sites.” N.Y.Envtl.Conserv.Law § 27-1305(4)(b) (McKinney 1996 Supp.). In the 1983 Registry, the Bedford Village Wells site was designated as a Class “2a” site, based in part upon information that disposition of dry cleaning solvents had probably occurred at the Arcade. Class “2a” sites are those that are suspected to be hazardous waste disposal sites, but which require further investigation to confirm the presence of hazardous wastes. This site was described as including the Arcade, the Hunting Ridge Shopping Mall, an Exxon gasoline station, the Bedford Theater Building, and an apartment building adjacent to the theater. In December 1987, the Arcade was separated from the Hunting Ridge Shopping Mall, and each was thereafter designated as a separate site in the Registry.
By letter dated October 12, 1983 and addressed to Miriam Baygell (who by that time was deceased), the NYSDEC advised that it intended to conduct a Phase II investigation of the Bedford Village Wells, and also stated that Ms. Baygell had the right to conduct such an investigation herself. Milton Baygell did not respond to this letter, which he may never have received. In any event, Wehran conducted the Phase II fieldwork for the NYSDEC commencing in 1984, and reported its final conclusions in June 1985. During this period, the WCDOH requested in a letter to Milton Baygell dated March 6, 1984 that he install a granular activated carbon (“GAC”) filter in the well supplying the Arcade with water to remedy the VOC problem; Baygell installed the GAC filter in May 1985.
The final Phase II Report concluded that VOC contamination persisted at the Arcade site. It also stated that although the Hunting Ridge Shopping Mall was located just 4,000 feet southwest of the Arcade, the groundwater contamination at the two sites was probably not related. As a result of these findings, the Bedford Village Wells Site was reclassified from Class “2a” to Class “2” in the 1986 Registry. A Class “2” site is defined as a “Significant threat to the public health or environment — action required.” N.Y.Envtl.Conserv.Law § 27-1305(4)(b)(2) (McKinney 1984); see also id. 1995 supplementary practice commentary (McKinney 1996 Supp.). Milton Baygell was informed about the reclassification in a certified letter for which he signed a receipt on June 20, 1986.
In 1986, the United States Environmental Protection Agency (the “EPA”) joined with the WCDOH to investigate the Arcade. Their joint surveys confirmed that VOCs persisted in three private wells at the Bed-ford Village Wells site, and low VOC concentrations also appeared east and southeast of the Arcade in water supplies that had previously been uncontaminated. In view of this problem, the NYSDEC requested and obtained approval from the EPA for a Remedial Investigation/Feasibility Study (“RI/FS”) of the entire Bedford Village Wells site. The NYSDEC retained Dvirka and Bartilucei Consulting Engineers (“Dvirka and Bartiluc-ei”) to perform the RI/FS in December 1986, and the firm began its field work the following summer.
Meanwhile, in January 1987, Milton Bay-gell entered into negotiations with Lashins for the sale of the Arcade after a real estate broker contacted Lashins about the property. In the course of these negotiations, Baygell’s attorney, Donald Mazin, wrote Lashins’ attorney, Henry Hocherman, on March 20, 1987 to inform him that “there are chemicals in the ground being treated by ultra violet and activated carbon machines situated in the rear of the building to clean the water. Chemicals have to be replaced approximately every 8-9 months.” Lashins Arcade Co., 856 F.Supp. at 156. Prior to executing the contract of sale, Lashins contacted the Arcade’s water service contractor, Environmental Recovery Co., who advised Lashins that the well on the premises had a water filter, but assured Lashins that the filter was “routine” and had been installed in response to an area-wide groundwater contamination problem, and that the suspected source of the contamination was a nearby Exxon gas station.
In addition, Lashins states that it contacted the Town of Bedford prior to purchasing the Shopping Arcade to determine whether there were any violations or other present or past problems with the property, and was assured that there were none. Lashins further asserts that it interviewed the Arcade’s tenants, all of whom spoke enthusiastically about the property. New York contends, however, that Lashins made no inquiry concerning the groundwater contamination (other than the discussion with Environmental Recovery Co.) prior to purchasing the Arcade. In any event, Lashins executed a contract of sale with Baygell on April 6, 1987, id., and the transaction closed on June 26, 1987.
Lashins claims that at the time of the closing, it was unaware that the NYSDEC was conducting an administrative proceeding involving the Arcade, or that it had contracted with a firm to conduct the RI/FS concerning the Bedford Village Wells site. BaygeE did not transmit any NYSDEC notices to Lashins, no public notice was issued, and the Arcade tenants, the Town of Bedford, and the local bank were allegedly unaware of the situation.
Lashins was first informed that the NYS-DEC was conducting a formal investigation of the Arcade by letter dated August 13, 1987. That letter advised Lashins of the impending Rl/FS requested by the NYS-DEC, and stated that NYSDEC representatives intended to enter the Arcade property “for the purpose of drilling, installing and operating groundwater monitoring wells and taking samples of soil, septage, surface water, and groundwater.”
New York also informed Milton Baygell of the Rl/FS by letter dated September 18, 1987, which stated that:
New York State ... has documented a release of “hazardous substances” ... at property known as the Bedford Village Wells — Shopping Arcade Site in the Town of Bedford....
The State intends to insure that the full extent of contamination at and around the site is thoroughly investigated and studied. It then intends to insure that the contamination is remediated. The NYSDEC has contracted with Dvirka and Bartilucci Consulting Engineers of Syosset, New York to conduct a[n] [Rl/FS] at the Shopping Arcade Site. This Rl/FS is expected to be completed within the next twenty-two (22) months.
Please be advised that, if it is found that the Shopping Arcade building is found to be a source of contamination in the Bed-ford Village Wells, the State will institute appropriate legal action against you [Bay-gell], as previous owner of the Shopping Arcade building, to recover its past and future removal and remediation response costs, as well as damages for harm to natural resources.
After purchasing the Arcade, Lashins maintained the existing GAC filter and took water samples which were analyzed by a laboratory for VOC contamination on a semiannual basis. It also instructed all tenants to avoid discharging any hazardous substances into the waste and septic systems, subsequently incorporated this requirement into the tenant leases, and conducted periodic inspections of the tenants’ premises to assure compliance with this obligation.
The Rl/FS was completed in February 1990. It concluded, inter alia, that the contamination in the affected wells,
“although unconfirmed, most probably originated from a former dry cleaning establishment located in the Shopping Arcade.
... The extent of significant ground water contamination appeared to be limited to the area of and immediately contiguous to the Shopping Arcade....
... [Although it appears that levels of ground water contamination have been generally declining, preliminary analysis of the data obtained from 1982 to 1986 does not indicate a clear trend of declining contamination for all wells. Based on this information, it was suspected that sources (including contaminated soils) may be continuing to release organic chemicals to the surrounding environment.”
Lashins Arcade Co., 856 F.Supp. at 156 (quoting RI/FS).
The NYSDEC issued a Record of Decision on March 30, 1990 setting forth its plan to abate and remedy the actual and threatened release of hazardous substances from the Arcade. Id. Three remedial measures were suggested: (1) installation of GAC filters (which were already in place) for the affected homes and businesses; (2) a new source of water supply; and (3) re-charge of the contaminated ground water by a “pump and treat” system. Id. Further studies were conducted to implement this Record of Decision, and in June 1993 the project manager for the Arcade remediation study stated that “ ‘the areas in question are still contaminated at somewhat lower but comparable levels as they were found during the [Remedial Investigation].’ ” Id. (quoting deposition testimony) (alteration in Lashins Arcade Co.).
New York filed this action on December 7, 1992, id., alleging violations of § 9607(a) and state law by Lashins and its codefendants as previously described. In October 1993, Lashins and New York filed opposing motions for summary judgment on the issue of Lashins’ liability under CERCLA as a current owner of the Arcade. The district court granted summary judgment for Lashins and dismissed the action with respect to Lashins on May 12, 1994. See Lashins Arcade Co., 856 F.Supp. at 158.
The district court concluded that all elements for strict liability as to Lashins under § 9607(a), supra note 2, were satisfied in this case, see Lashins Arcade Co., 856 F.Supp. at 157, but that Lashins was entitled to summary judgment on its affirmative defense under § 9607(b)(3), supra note 3, see Lashins Arcade Co., 856 F.Supp. at 157-58. In so ruling, the court noted that “Lashins had no direct or indirect contractual relationship with either of the third party dry cleaners who released the VOGs, or with the owners of the Shopping Arcade at the time the dry cleaners operated and when the pollution occurred,” id. at 157, and that Lashins had done “everything that could reasonably have been done to avoid or correct the pollution,” id.
As previously noted, consent decrees subsequently ensued with respect to Lashins’ codefendants. Final judgment was accordingly entered on June 20, 1995. This appeal followed.
Discussion
Because this is an appeal from a grant of summary judgment, “we review the record de novo, drawing all factual inferences and resolving all ambiguities in favor of the nonmoving party.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.) (collecting cases), cert. denied, — U.S.-, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). These principles apply whether summary judgment is granted on the merits of a claim or, as in this case, on an affirmative defense. BellSouth Telecommunications, Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 609 (2d Cir.1996).
As an initial matter, there is no dispute that New York has established a prima fade case against Lashins under § 9607(a), supra note 2, for recovery of expenses incurred investigating and cleaning up the release of PCE at the Arcade. See Lashins Arcade Co., 856 F.Supp. at 157. This ‘prima facie case consists of the following elements:
(1) the site in question is a “facility” as defined in [42 U.S.C. § 9601(9) ];
(2) the defendant is a responsible person under [§ 9607(a) ];
(3) a release or a threatened release of a hazardous substance has occurred; and
(4) the release or threatened release has caused the plaintiff to incur response costs.
Town of Munster v. Sherwin-Williams Co., 27 F.3d 1268, 1273 (7th Cir.1994) (citing Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 325 (7th Cir.1994)); see also New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir.1985); Northwestern Mut. Life Ins. Co. v. Atlantic Research Corp., 847 F.Supp. 389, 395 (E.D.Va.1994).
Since Lashins is a current owner of the Shopping Arcade, it is a potentially responsible defendant under § 9607(a)(1), supra note 2, notwithstanding the fact that it did not own the Arcade at the time of disposal of the hazardous substances. See, e.g., Northwestern Mut. Life Ins. Co., 847 F.Supp. at 397. Thus, Lashins may be held strictly liable for New York’s response costs unless it can satisfy one of CERCLA’s affirmative defenses. See Shore Realty, 759 F.2d at 1042. We now turn to Lashins’ claim that it may avoid such liability under the third-party defense of § 9607(b)(3).
Section 9607(b)(3), supra note 3, provides an affirmative defense for a party who can establish that the offending “release ... of a hazardous substance and the damages resulting therefrom were caused solely by ... an act or omission of a third party,” provided that: (1) the third party is not “one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant,” (2) the defendant “took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions,” and (3) the defendant “exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances.”
The offending release here was clearly caused by third parties (Tripodi, Bedford Village Cleaners, Inc., Astrólogo, and (New York contends) Milton Baygell). Although paragraphs (1) — (3) of § 9607(b) speak exclusively in the singular, referring to events and damages “caused solely by — (1) an act of God; (2) an act of war; [or] (3) an act or omission of a third party,” § 9607(b) (emphasis added), paragraph (4) of § 9607(b) refers to “any combination of the foregoing paragraphs,” id., see supra note 3. We read paragraph (4) as allowing consideration of multiple causes within, as well as among, the several preceding paragraphs. Thus, in our view, damage that resulted from an earthquake and a subsequent flood would fall within paragraph (1) of § 9607(b), and damages caused by a number of acts by a single third party (as typically occurs when pollution is caused by a course of conduct), or a number of acts by several third parties (as in this case), would fall within paragraph (3). One case that involved acts of multiple third parties proceeded on the premise that their joint activities could provide exculpation under § 9607(b)(3), although without explicit analysis of the applicable statutory language. See City of New York v. Exxon Corp., 766 F.Supp. 177, 195 (S.D.N.Y.1991); cf. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1079 n. 10 (1st Cir.1986) (paraphrasing § 9607(b)(3) to this effect).
In this case, the only one of the allegedly offending third parties with whom Lash-ins had a contractual relationship was Milton Baygell. Further, Baygell’s allegedly offending conduct did not “occur in connection with a contractual relationship ... with [Lashins]” within the meaning of § 9607(b)(3), and therefore Lashins may not be disqualified from the protection afforded by § 9607(b)(3) because of its contractual relationship with Baygell.
This conclusion is mandated by the following ruling in Westwood Pharmaceuticals, Inc. v. National Fuel Gas Distribution Corp., 964 F.2d 85 (2d Cir.1992):
We hold that ... the phrase “in connection with a contractual relationship” in [§ 9607(b)(3)] requires more than the mere existence of a contractual relationship between the owner of land on which hazardous substances are or have been disposed of and a third party whose act or omission was the sole cause of the release or threatened release of such hazardous substances into the environment, for the landowner to be barred from raising the third-party defense provided for in that section. In order for the landowner to be barred from raising the third-party defense under such circumstances, the contract between the landowner and the third party must either relate to the hazardous substances or allow the landowner to exert some element of control over the third party’s activities.
964 F.2d at 91-92.
In Westwood, the seller of the contaminated site sought exoneration from the buyer’s conduct, whereas in this case the buyer seeks exoneration from the seller’s activities, but this is surely an immaterial distinction in terms of the Westwood rationale. See id. at 89 (“[A] landowner is precluded from raising the third-party defense only if the contract between the landowner and the third party somehow is connected with the handling of hazardous substances.”). The straightforward sale of the Arcade by Baygell to Lash-ins clearly did not “relate to hazardous substances” or vest Lashins with authority “to exert some element of control over [Bay-gell’s] activities” within the contemplation of our ruling in Westwood.
The second requirement for the successful assertion of a third-party defense demands that the defendant shall have taken adequate precautions against actions by the third party that would lead to a release of hazardous waste. Given that the last release in the instant case happened more than fifteen years before Lashins’ purchase of the Arcade, there was obviously nothing Lashins could have done to prevent actions leading to a release.
Thus, the resolution of this appeal turns upon the validity of the district court’s ruling that Lashins was entitled to summary judgment on the question whether Lashins “exercised due care with respect to the hazardous substance concerned ... in the light of all relevant facts and circumstances” within the meaning of § 9607(b)(3). This requirement is not defined in the statute. CERCLA’s legislative history, however, provides some guidance: “[T]he defendant must demonstrate that he took all precautions with respect to the particular waste that a similarly situated reasonable and prudent person would have taken in light of all relevant facts and circumstances.” H.R.Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 34 (1980), reprinted in 1980 U.S.C.C.AN. 6119, 6137. Further, “due care “would include those steps necessary to protect the public from a health or environmental threat.’ ” United States v. A & N Cleaners & Launderers, Inc., 864 F.Supp. 229, 238 (S.D.N.Y.1994) (quoting H.R.Rep. No. 263, 99th Cong., 2d Sess. 187 (1986) U.S.Code Cong. & Admin.News 1986, 2835); see also Kerr-McGee Chem. Corp., 14 F.3d at 326 & n. 3 (due care not established when no affirmative measures taken to control site); Lincoln Properties v. Higgins, 823 F.Supp. 1528, 1543-44 (E.D.Cal.1992) (due care exercised where defendant removed contaminated wells).
Against this background, New York contends that Lashins inadequately investigated the contamination problem before buying the Arcade despite being notified about it, and after its purchase “did nothing to contain, control or clean up the pollution except to continue to maintain a filter on its own property.” New York points to cases such as A & N Cleaners and Kerr-McGee Chemical Corp. where § 9607(a) liability was imposed because the defendant did not take active measures to address a hazardous waste problem, and adds that Kerr-McGee Chemical Corp. and United States v. DiBiase Salem Realty Trust, Civ. A. No. 91-11028-MA, 1993 WL 729662 (D.Mass. Nov. 19, 1993), establish that the “due care” standard does not permit a landowner to remain passive simply because public environmental authorities are addressing a hazardous waste situation.
We are not persuaded by New York’s arguments, nor by the authorities that New York cites to us. The pertinent language of § 9607(b)(3) focuses the “due care” inquiry upon “all relevant facts and circumstances” of the ease at hand. In this case, the Rl/FS by Dvirka and Bartilucci had been commissioned six months before Lashins purchased the Arcade, and before Lashins had even learned that the Arcade was for sale. It would have been pointless to require Lashins to commission a parallel investigation once it acquired the Arcade and became more fully aware of the environmental problem. Pressed at oral argument as to what Lashins might appropriately have been required to do at that juncture, New York contended that Lashins was obligated to pay some or all of the cost of the R17FS undertaken at the behest of the EPA and the NYSDEC.
This is surely an anomalous proposal. Response costs are assessed when there is liability under § 9607(a). It is counterintuitive to suppose that a defendant is required to pay some or all of those response costs in order to establish the affirmative defense provided by § 9607(b)(3) to liability under § 9607(a), thereby rendering the affirmative defense partly or entirely academic.
Nor do we discern any policy reasons for imposing such a rule. We agree with HRW Systems, Inc. v. Washington Gas Light Co., 823 F.Supp. 318 (D.Md.1993), that the “due care” mandate of § 9607(b)(3) does not “impose a duty on a purchaser of land to investígate prior to purchase, in order to determine whether there is pollution on the land caused by someone with whom the purchaser is not in contractual privity.” Id. at 349. No claim is made that Lashins’ purchase of the Arcade deprived New York of any remedy available to it against any predecessor owners or operators under § 9607(a); consent decrees were in fact entered against Tripodi and Astrologo. It is surely the policy of CERCLA to impose liability upon parties responsible for pollution, see, e.g., DiBiase Salem Realty Trust, Civ. A No. 91-11028-MA, 1993 WL 729662, at *3 (D.Mass. Nov. 19, 1993) (collecting cases), rather than the general taxpaying public,but this policy does not mandate precluding a “due care” defense by imposing a rule that is tantamount to absolute liability for ownership of a site containing hazardous waste.
Finally, the eases cited by New York do not require the negation of Lashins’ “due care” defense. None involved a defendant who played no role in the events that led to the hazardous waste problem and came on the scene after public authorities were well along in a program of investigation and remediation. Kerr-McGee Chemical Corp. involved a landowner who was aware of the environmental problem and made no attempt to address it after preliminary investigative efforts by federal and state authorities provided notice of the contamination. See 14 F.3d at 325 & n. 3. In A & N Cleaners, the defendant landowners’ sublessee (who subsequently became a lessee) was operating the offending dry cleaning establishment throughout the entire period of the defendants’ ownership. See 854 F.Supp. at 232. In DiBiase Salem Realty Trust, a portion of the pollution occurred after the landowner commenced ownership, see 1993 WL 729662 at *1, and the landowner did nothing to address the problem after becoming aware of the hazardous wastes as a result of preliminary investigations by state authorities, see id. at *7. Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir.), cert. denied, 506 U.S. 940, 113 S.Ct. 377, 121 L.Ed.2d 288 (1992), cited to us at oral argument, did not address any § 9607(b) issue. Lincoln Properties, invoked in a post-argument letter to the Court, simply ruled that measures taken by San Joaquim County, California with respect to contaminated wells and a sewer system satisfied its § 9607(b)(3) “due care” obligation. See 823 F.Supp. at 1543-44.
In sum, we perceive no basis for reversal of the district court’s award of summary judgment to Lashins on the basis that Lash-ins satisfied its obligation to “exercise[ ] due care” with respect to the Arcade within the meaning of § 9607(b)(3). In so ruling, we proclaim no broad rule of exemption from the liability imposed by § 9607(a). Rather, mindful of the mandate of § 9607(b)(3) that the “due care” inquiry focus upon “all relevant facts and circumstances” of the case presented for decision, we conclude that Lashins’ “due care” obligation did not require it to go beyond the measures that it took to address the contamination problem at the Arcade, see supra note 6 and accompanying text, and to supplant, duplicate, or underwrite the RI/FS previously commissioned by the EPA and NYDESC to address pollution that ensued from activities which occurred more than fifteen years before Lashins purchased the Arcade.
Conclusion
The judgment of the district court is affirmed.
. Jorling has been appointed as trustee for the natural resources of the State of New York pur-suantto 42 U.S.C. § 9607(f)(2)(B).
. Section 9607(a) provides in pertinent part:
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section'—
(1) the owner and operator of a vessel or a facility, [and]
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, ...
... shall be liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and
(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.
. Section 9607(b) provides:
There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by—
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or
(4) any combination of the foregoing paragraphs.
.This cross-appeal was assigned docket number 95-7768, and is reflected in various ways in the caption of this appeal.
. In October 1993, Lashins sued Hocherman and his firm for malpractice, alleging that Hocher-man had failed to advise Lashins about the receipt and contents of the Mazin letter.
. There appears to be no serious dispute that in addition, Lashins regularly took water samples and had them analyzed by a laboratory for VOC contamination, instructed all tenants to avoid discharging hazardous substances into the waste and septic systems, incorporated this requirement into the tenant leases, and conducted periodic inspections to assure compliance with this obligation.
. In view of the settlement with Astrólogo and our affirmance of the summary judgment in favor of Lashins, New York’s appeal from the district court's ruling "that Congress intended the right to a jury trial in a case where a plaintiff seeks a judgment for money damages for cleanup costs as well as injury to natural resources under [§ 9607(a)],” Lashins Arcade Co., 881 F.Supp. at 102, and that "[w]ere this not so, this Court would find a Constitutional right to a jury trial,” id. at 103, no longer presents a live issue for our resolution. We caution, however, that the district court’s ruling stands alone (so far as we are aware) in opposition to the overwhelming weight of authority on this issue. See, e.g., Hatco Corp. v. W.R. Grace & Co.-Conn., 59 F.3d 400, 411-12 (3d Cir.1995); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 749 (8th Cir. 1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987); United States v. Mexico Feed & Seed Co., 729 F.Supp. 1250, 1254 (E.D.Mo.1990); United States v. Northernaire Plating Co., 685 F.Supp. 1410, 1413 (W.D.Mich.1988), aff'd sub nom. United States v. R.W. Meyer, Inc., 889 F.2d 1497 (6th Cir.1989), cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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BALDOCK, Circuit Judge.
The State of Utah filed an action in federal district court seeking to intervene in a lease approval process between an Indian tribe and a private party. The district court concluded the State lacked standing and granted Defendant’s motion for summary judgment. The State appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo and conclude the action is not yet ripe for judicial review. See U.S. West Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir.1999).
I.
In May 1996, the Skull Valley Band of Goshute Indians (the Band), a federally-recognized Indian tribe, and Defendant-Intervenor Private Fuel Storage (PFS) began negotiations for the lease of lands within the Skull Valley Reservation. The United States holds the lands in trust for the Band. PFS intends to construct and operate a temporary storage facility for high-level nuclear waste on the lands.
Pursuant to 25 U.S.C. § 415(a), the Secretary of the Interior must approve any lease of Indian trust lands. Section 415(a) requires the Secretary of the Interior to:
first satisfy himself that adequate consideration has been given to the relationship between the use of the leased lands and the use of neighboring lands; the height, quality, and safety of any structures or other facilities to be constructed on such lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arising on the leased lands; and the effect on the environment of the uses to which the leased lands will be subject.
As required by § 415(a), the Band submitted the proposed lease with PFS to the Bureau of Indian Affairs (BIA).
The BIA Superintendent of the Uintah and Ouray Reservation (Superintendent), acting under authority delegated to him by the Secretary of the Interior, conditionally approved the lease. The Superintendent conditioned his approval of the lease (1) upon the successful completion of an environmental impact statement (EIS) evaluating the environmental impacts of the lease in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), and (2) upon the issuance of a license by the Nuclear Regulatory Commission (NRC).
The NRC is performing the NEPA review as the lead agency in conjunction with its licensing proceedings. The State sought to intervene in the NRC’s EIS and licensing proceedings and was admitted as a party. The State also sought to intervene in the lease approval process before the Superintendent, who determined that the State did not have standing. That decision was upheld on appeal to the Area Director of the BIA’s Phoenix Area Office and to the Interior Board of Indian Appeals.
In the course of the § 415(a) lease approval proceedings, the State requested from the BIA, under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, certain documents, including a copy of the lease. The BIA provided a copy of the lease, but redacted certain information regarding financial and other terms on the ground that the redacted portions fell within the FOIA exemption for protected commercial and financial information. 5 U.S.C. § 552(b)(4).
The State subsequently filed a complaint in federal district court against the BIA and others challenging the BIA’s refusal to permit the State to intervene and participate in the lease approval process. Specifically, the State sought: (1) reversal of the BIA’s determination that the State lacks standing to intervene, (2) a declaratory judgment requiring the BIA to include the State as a full participant in any remaining lease approval proceedings, and (3) production by the BIA of the redacted portions of the lease. PFS, the lessee of the Lease, which the State did not name as a Defendant, successfully moved to intervene.
II.
Defendants argue this suit is nonjusticiable both because the State lacks standing to bring this case and because the issue is not yet ripe for adjudication. Defendants contend the State’s claims are not ripe because NRC has not completed the EIS or issued PFS a license to operate the proposed facility. Because the EIS and license are conditions precedent to further lease review, Defendants argue the § 415(a) lease approval review in which the State seeks to intervene may never occur. We conclude that the dispute is not justiciable, because it is not ripe for court review.
The “basic rationale” of the ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). When assessing ripeness, we must “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. 1507. The Supreme Court has listed the following considerations for evaluating ripeness: (1) whether delayed review would cause hardship to the plaintiff, (2) whether judicial intervention would inappropriately interfere with further administrative action, and (3) whether the courts would benefit from further factual development of the issues presented. Ohio Forestry, 523 U.S. at 733, 118 S.Ct. 1665.
In Ohio Forestry, the Supreme Court considered the ripeness of the Sierra Club’s challenge to the lawfulness of a federal land and resource management plan which the United States Forest Service had adopted. The Court noted that while the plan set logging goals, selected the areas of the forest suitable for timber production, and determined appropriate methods of timber harvest, it did not itself authorize the cutting of any trees. Id. at 729, 118 S.Ct. 1665. Before the Forest Service could permit logging, it had to pass through several steps, including (1) providing those affected by the proposed logging notice and an opportunity to be heard, (2) completing an environmental analysis pursuant to NEPA, (3) rendering a final decision to permit logging, (4) and justifying the proposal in court if challenged. Id. at 729-30, 118 S.Ct. 1665. Accordingly, the Court concluded the Sierra Club’s challenge was not ripe because the plan did not inflict significant practical harm upon the interests that the Sierra Club advanced. Id. at 733, 118 S.Ct. 1665.
Like the Sierra Club in Ohio Forestry, the State of Utah will not suffer significant hardship if we withhold court consideration of its claims at this time. The State seeks to intervene in the lease approval process to ensure that the Superintendent considers environmental factors as required by § 415(a). The State will have ample opportunity to raise its environmental concerns during both the NRC’s environmental review process and the licensing process in which it has been permitted to intervene. Consequently, the State need not participate in the lease approval process to present its concerns. In fact, NEPA’s scope of review significantly exceeds that required by § 415(a). In Davis v. Morton, 469 F.2d 593, 598 (10th Cir.1972), we noted that NEPA is a very broad statute covering both substantive and procedural problems relating to the environment. On the other hand, § 415(a) discusses the environmental problem only briefly, requires only that the Secretary satisfy himself on the environmental issue, and does not set out any specific procedural guidelines as does NEPA. Id. Because the NRC must examine environmental concerns more rigorously in the NEPA proceedings than the BIA does in its subsequent § 415(a) lease review, the State will suffer no hardship by the denial of review at this time.
Nevertheless, the State claims that participation in the NRC proceedings is no substitute for intervention in the § 415(a) lease approval process. The State argues the NRC impermissibly limited the scope of its NEPA review and only through participation in the lease approval process will the State be able to ensure that the NRC considers certain environmental issues. Despite the State’s protestations, judicial review of final agency action under the Administrative Procedure Act, 5 U.S.C. § 702, rather than intervention in the § 415(a) lease approval process, provides the proper procedure to challenge the sufficiency of an EIS. See Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448 (10th Cir.1996).
While judicial intervention would probably not inappropriately interfere with further administrative action, we would benefit from further factual development of the issues presented. We considered the need for further factual development when evaluating the ripeness doctrine in the context of a lease of Indian land in Norvell v. Sangre de Cristo Dev. Co., 519 F.2d 370 (10th Cir.1975). In Norvell, the State of New Mexico sought to assert jurisdiction over a lessee of Indian land and its activities under the lease. While the Norvell litigation was pending, we enjoined any activities under the lease because the parties had not complied with NEPA, and ordered the BIA to conduct an EIS. Davis v. Morton, 469 F.2d at 597-98. When the Norvell appeal subsequently reached us, we held that the case was not ripe because all activities under the lease were in limbo pending compliance with NEPA and a possibility existed that the project would not meet the requirements of NEPA. Norvell, 519 F.2d at 377-79. Accordingly, the action did not present a justiciable case or controversy. Id. at 377. Further, the possibility of the project’s disapproval as a result of ongoing review rendered the action improper for declaratory disposition. Id. at 378-79.
Concluding the action was not ripe, we stated: “The subject 99-year lease has not been approved [or] measured by NEPA requirements and it is speculative when or conceivably whether it shall meet NEPA requirements.” Id. at 375. Additionally, we noted: “[W]e do not know whether the development project shall go forward or, if ultimately authorized following the environmental considerations, the precise activities which may be permitted on the leased lands.” Id. at 376. We concluded that “[n]o significant hardship will accrue to the State .of New Mexico” because the “State can do no more than presently allege that if the project is approved and developed, it may fall within the statutory ambits. Such is insufficient to meet the case or controversy tests.” Id.
Similarly, the State of Utah will suffer no significant hardship because the State can do no more than presently allege that if the lease is approved and the facility developed, it may detrimentally impact the environment. The State’s claimed harms are contingent, not certain or immediate. See Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (claim not ripe if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all). We cannot be certain whether the EIS will show that the project presents unacceptable risks, whether the NRC will issue a license to PFS or, if ultimately authorized following the environmental considerations, the precise activities which may be permitted on the leased lands. Accordingly, we conclude the State’s suit is not ripe for review.
AFFIRMED.
. Defendants did not raise the ripeness issue in the district court. The ripeness doctrine, however, “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). Accordingly, ripeness can be raised at any time, even by the court sua sponte for the first time on appeal. Thomas v. New York, 143 F.3d 31, 34 (2d Cir.1998); see also Norvell v. Sangre de Cristo Dev. Co., 519 F.2d 370, 375 (10th Cir.1975).
. We do not address the State's standing to maintain this suit. See Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (resolving ripeness issue and declining to address standing where both standing and ripeness challenged).
. The State concedes that "[i]f the [NRC] review which is presently underway were broad and comprehensive in its scope, the State would be hard pressed to complain about not having been given the chance for the kind of participation that is a well-established part of the NEPA process.” (App. Br. at 44.) The State apparently seeks intervention in the § 415(a) lease approval process as a means to circumvent the NRC's decision to limit its NEPA review.
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BAUER, Circuit Judge.
The United States and appellants Shak-eab Alshabkhoun and A & A Farms (collectively A & A) entered into a court-approved Consent Decree to resolve the government’s claims that A & A violated the Clean Water Act. When A & A failed to comply with the terms of the Consent Decree, the government moved to enforce the stipulated penalties provision. The district court granted the government’s motion and ordered A & A to pay stipulated penalties and attorney’s fees. A & A appealed that ruling. For the reasons set forth below, we affirm the district court.
I. Background
A & A owns 1,000 acres of farmland adjacent to the Wisconsin River in Dane County, Wisconsin. In January of 1994, A & A excavated a drainage ditch system to collect water and excess soil from the farm and neighboring land and convey it to the river. The system required a ditch that was 38 feet wide and 1,500 feet long, which resulted in the discharge of dredged or fill materials into the wetlands. A & A did not obtain a permit from the United States to construct this drainage ditch system.
On December 4, 1996, the Environmental Protection Agency (EPA) issued an administrative compliance order stating that A & A’s construction of the ditch without a permit was a violation of the Clean Water Act. The Clean Water Act prohibits the discharge of any pollutant, including dredged or fill material, into navigable waters of the United States, except in accordance with a permit. 33 U.S.C. § 1311(a). A & A then submitted a restoration plan that the EPA rejected and further attempts to resolve the dispute failed.
On August 13, 1998, the United States filed a civil action in federal district court under section 309 of the Clean Water Act. The court entered partial summary judgment in favor of the government and, on July 2, 1999, the parties entered into a Consent Decree for the restoration of the wetlands. The decree was negotiated by both parties and approved by the district court. It required A & A to pay $225,000 in civil penalties. Further, to properly restore the wetlands, the Consent Decree required A & A to submit to the EPA a Restoration Work Plan, prepared by a certified engineer, and a schedule for completing the tasks set forth in the Plan.
The Consent Decree provided for stipulated penalties for any failure to implement the Plan in compliance with the schedule. Specifically, the Consent Decree required the payment of $500 per day for one to thirty days of noncompliance, $1,000 per day for thirty-one to sixty days of noncompiiance and $2,000 per day for sixty-one or more days of noncompliance. The Consent Decree allowed for the extension of the deadlines if “performance is prevented or delayed solely by events which constitute a Force Majeure event,” defined to exclude “normal precipitation or climate events.” A & A was required to notify the government in writing of any alleged Force Majeure event to invoke the extension of deadlines.
The Consent Decree also included a dispute resolution provision. Under this provision, if A & A filed a petition in court concerning the Consent Decree, A & A’s penalties would continue to accrue during the proceedings; however, the filing of a petition would stay A & A’s obligation to pay any penalty regarding the disputed matter. In the event that A & A did not prevail on the matter in dispute, the stipulated penalties became due.
The Plan required A & A to obtain bids from contractors within thirty days of the approval of the Plan, complete grading and installation of erosion control measures within forty-five days thereafter, and plant the required trees, shrubs and seeds within thirty days after that. A & A hired a contractor and began the work in late November of 1999, but did not complete the project. More than two months later, on February 17, 2000, A & A filed a notice of dispute with the EPA, requesting relief from the Plan on the grounds that compliance was impossible. A & A stated that it had hired additional experts who opined that the implementation of the Plan could potentially cause flooding problems. The EPA reviewed this information and denied A & A relief.
On April 7, 2000, invoking the decree’s dispute resolution clause, A & A filed a Petition to Modify the Consent Decree with the district court claiming that significant unforeseen circumstances affected its ability to perform the work. The court rejected A & A’s impossibility claim and instead found that since the drainage problem was the very reason A & A constructed the ditch at issue, A & A was well aware of its experts’ observations and the potential for drainage problems at the time the Consent Decree was negotiated. As a result, on May 26, 2000, the district court held that A & A had failed to present adequate grounds for any modification of the decree and the petition was denied.
In June of 2000, spring flooding rendered the land unsuitable for work. A & A did complete the required excavation in October of 2000, but the parties were still in dispute over the issue of stipulated penalties for the delay. On October 23, 2000, the government filed a Petition to Enforce the Consent Decree, asking the court for an award of $507,850.40. The amount represented the accumulation of the stipulated daily penalties, as well as attorney’s fees. In response, A & A did not contest the calculation of damages, but argued that the stipulated penalties provision was unreasonable and unenforceable and that the delay in completing the work should be excused due to the June flooding.
On January 11, 2001, the district court granted the government’s petition in full. The court held that the stipulated penalty provision was reasonable and enforceable because it amounted to less than 10% of the penalty authorized by statute. Further, the court refused to excuse the delay due to the June flooding because had A & A implemented the Plan in a timely manner seven months earlier, the June flooding would have been irrelevant. A & A then brought this appeal.
II. Discussion
Because a consent decree is a form of contract, we generally review a district court’s interpretation of the consent decree de novo. Goluba v. Sch. Dist. of Ripon, 45 F.3d 1035, 1037-38 (7th Cir.1995). However, where, as here, the district court oversaw and approved the consent decree, we give “some deference” to the district court’s interpretation. Id.
A & A concedes that the construction of the ditch violated the Clean Water Act. The sole issue raised on this appeal is whether the district court’s enforcement of the Consent Decree is against public policy. A & A presents two arguments: (1) that the stipulated penalty provision in the Consent Decree is void and unenforceable as a matter of public policy because it allows for penalties to accrue while the parties engage in the dispute resolution process; and (2) that the district court erred in penalizing A & A for the delay in compliance with the schedule because it was unable to perform the work due to the June flooding. We find both arguments to be without merit.
A consent decree is a court order that embodies the terms agreed upon by the parties as a compromise to litigation. United States v. Witco Corp., 76 F.Supp.2d 519, 525 (D.Del.1999). For purposes of construction, a judicially approved consent decree is essentially a contract. United States v. City of Northlake, Illinois, 942 F.2d 1164, 1167 (7th Cir.1991). While a consent decree is also deemed a judgment of the court, “it is the parties’ agreement that serves as the source of the court’s authority to enter any judgment at all.” Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986); King v. Walters, 190 F.3d 784 (7th Cir.1999).
A provision within a consent decree fixing a stipulated penalty is unenforceable if it constitutes an unreasonable penalty or is void as a matter of public policy. South Suburban Hous. Ctr. v. Berry, 186 F.3d 851, 856 (7th Cir.1999). A & A argues that the stipulated penalty provision in the Consent Decree forces A & A to effectively surrender its rights to invoke the dispute resolution process because stipulated penalties might be imposed while the dispute is pending. In support of its public policy argument, A & A relies heavily on United States v. Witco Corporation, in which a United States District Court rendered a similar stipulated penalty provision void and unenforceable.
In Witco, the EPA asserted a claim against Witco Corporation, a property owner, seeking the clean-up of a contaminated land site. Witco Corp., 76 F.Supp.2d at 521. Witco and the EPA entered into a consent decree that provided for stipulated penalties if Witco failed to comply with the decree’s terms and the accrual of penalties during any period of dispute resolution. Id. at 522-23. Witco invoked the dispute resolution clause but did not succeed in the dispute. The EPA sought collection of the stipulated penalties, including those that had accrued during the dispute. Id. at 524. The district court refused to award such penalties. Id. at 531. Reasoning that enforcement of the stipulated penalties provision would penalize Witco for asserting its rights to judicial process, the court determined that the stipulated penalty provision was against public policy and therefore, unenforceable because it allowed penalties to accrue while the dispute was pending. Id. at 529-30.
A & A’s reliance on Witco is misplaced. The decisions of the district court of Delaware are not controlling authority in this jurisdiction and Witco is notably distinguishable from A & A’s case. First, Witco completed the required clean-up before invoking the dispute resolution clause. Id. at 523. The penalties at issue in that case accrued only while the dispute over fee amounts was pending, and Witco’s dispute involved a change in the law since the entry of the consent decree. Unlike the instant case, Witco had fully remedied the environmental harm by completing its work, and the accrued penalties at issue were unrelated to any continuing environmental violation. Id. at 530-31.
In contrast, A & A invoked the dispute resolution procedures while the required work was still uncompleted. A & A’s penalties accrued during this period not because of a late payment, but because of the unwarranted delay in completing the restoration of the wetlands, as required by the Consent Decree. In addition, while Witco brought a good faith claim based on a change in the law, A & A sought to modify the decree here without any similar, legitimate basis. We agree with the district court that Witco was not instructive in this case.
More analogous is United States v. Kri-lich, 126 F.3d 1035 (7th Cir.1997), in which we upheld the imposition of over $1 million in stipulated penalties. Krilich, a property owner, entered into a consent decree to settle the government’s Clean Water Act claims. Krilich, 126 F.3d at 1036. In the decree, Krilich promised to restore the subject wetlands according to a schedule. Krilich missed the scheduled deadlines and the government moved to enforce the decree’s stipulated penalties provision. Id. The district court granted the motion and we affirmed. In so doing, we noted that Krilich had negotiated the decree, entered into it freely, and never properly modified any of the deadlines. Id. at 1037. Accordingly, Krilich was bound to pay the stipulated penalties set forth in the consent decree. We believe that the result in Kri-lich is warranted in the instant case.
We agree with A & A that access to the courts is of paramount importance. However, it does not follow that an agreed upon provision that allows for the accrual of stipulated penalties during any dispute resolution is unenforceable as a matter of public policy. It is undisputed that this Consent Decree was drafted and negotiated by both parties and entered into voluntarily. A & A cannot now escape the consequences of the Consent Decree with a public policy argument that the provision inhibits its right to access the courts. A & A’s blanket statement that the “right to dispute resolution ‘rings hollow’ when accompanied by the risk of penalties” is overbroad. In fact, the stipulated penalty accrual provision does not apply to a successful claim. Unfortunately for A & A, it was not successful on its petition to modify the Consent Decree. As a result, A & A is hable for the penalties that accrued during the resolution of that dispute. To excuse A & A from the stipulated penalties would undermine the clear terms of the Consent Decree and provide any party to a Consent Decree with a method of delaying performance by invoking the dispute resolution clause with meritless claims.
Although unreasonable penalties may well be unenforceable, we believe the stipulated penalties imposed under this Consent Decree are reasonable under these circumstances. See, e.g., United States v. Krilich, 948 F.Supp. 719, 726 (N.D.Ill.1996). The penalties are directly related to the environmental harm caused by A & A. Further, the amount is less than 10% of the statutory authorized penalties. See 33 U.S.C. § 1319(d).
A & A also argues that the stipulated penalties were unreasonable as a matter of public policy since the delay in work was attributable to weather conditions beyond its control. It argues that it did not resume work following the resolution of the dispute because June flooding rendered the land unsuitable for work. A & A adds that even the government concedes that the land was too wet for the work at the time. The Consent Decree provided that a deadline may be excused in the event of a “Force Majeure.” This provision, however, required A & A to notify the government in writing of the alleged Force Majeure event in order to excuse a deadline. Because A & A failed to do so, A & A cannot now claim that compliance with the schedule was not possible. See, e.g., Krilich, 126 F.3d at 1037. Moreover, because June was a full seven months after the Consent Decree’s deadlines for completing the work, any flooding in June does not warrant an excuse for the delay and is therefore irrelevant to the issue of stipulated penalties.
III. Conclusion
For the foregoing reasons, we Affiíim the judgment of the district court.
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ORDER
For the reasons stated in the memorandum opinion of the district court filed on August 7, 1992, in the Eastern District of Washington, we affirm the grant of summary judgment in favor of the appellees.
We adopt the district court’s memorandum opinion as appended, finding it dispositive of all issues on appeal.
AFFIRMED.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, INTER ALIA
JUSTIN L. QUACKENBUSH, District Judge:
BEFORE THE COURT is Plaintiff’s Motion for Summary Judgment (Ct.Rec. 44), defendants’ Cross-Motion for Summary Judgment (Ct.Rec. 36), and Intervenor-De-fendants’ Washington Trails association, the Wilderness Coalition, the North Cascades Conservation Council, and the Mountaineers (the “Intervenors”) Cross-Motion for Summary Judgment (Ct.Rec. 39). A hearing on these motions was held on July 31, 1992. William Perry Pendley, of the Mountain State Legal Foundation, and Jerry Boyd appeared on behalf of the Plaintiff, while the Defendants were represented by Brian Ferrell, of the United States Department of Justice, Environmental & Natural Resources Division. The Intervenors were represented by Ronald G. Morrison. Having reviewed the record, heard from counsel, and fully considered these matters, the court enters this order to memorialize its oral rulings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Wenatchee National Forest, like all national forests, is governed by a Land and Resources Management Plan. In formulating the plan for the Wenatchee National Forest, nine alternative plans were considered by Defendant United States Forest Service. (A.R. 5 at page 12.) A draft Environmental Impact Statement (EIS) analyzing the alternatives was published in June 1986. (A.R. 93.) A final EIS was published in February 1990. (AR. 32.) In March 1990, the defendant United States Forest Service issued the Land and Resource Management Plan Record of Decision for the Wenatchee National Forest, which stated that Alternative C of the final EIS had been selected as the Wenatchee Forest Plan. (A.R. 30.) Included in Alternative C was the prohibition of off-road vehicle (ORV) use in the area surrounding the North Fork of the Entiat River and the adjacent Pyramid Mountain area in the Wenatchee National Forest (“North En-tiat”).
The goal of the Land and Resource Management Plan for the Wenatchee National Forest (“the Plan”) is to “[p]rovide a well balanced array of recreation opportunities across the breadth of the recreation opportunity spectrum in accordance with resource capability, public demands and expectations for outdoor recreation.” (A.R. 31 at page PV-2.) The Plan also seeks to “[pjrovide a diverse system of safe, well-maintained trails for the enjoyment of all users.” Id.
The Plan divides the Wenatchee National Forest into 24 management areas, each with different management goals, resource potential, and limitations. (A.R. 31 at page IV-105.) One such management area is classified RE-3, “Dispersed Recreation, Unroad-ed, Non-Motorized.” The management goal of RE-3 classified land is to “[pjrovide dispersed recreation in an unroaded, semi-primitive, non-motorized or primitive setting.” (A.R. 31 at page IV-171.) RE-3 designated lands include “unroaded areas in which trails are evident and maintained for non-motorized users. Landscape changes are generally not evident to those walking through the area. The area is essentially a natural or natural appearing environment. There is little evidence on-site of other users.” Id. In the Defendants’ Plan, a RE-3 prescription was given to the North Entiat area, thereby prohibiting ORV use in the area.
On May 23, 1990, the Plaintiff, an ORV association in the State of Washington, submitted an administrative appeal challenging the Defendant United States Forest Service’s decision to close the North Entiat to motorized trailbike use. The Plaintiff claimed that this decision illegally resolved the alleged conflict between hikers and ORV users by arbitrarily closing the trails to the latter group. The Plaintiff also asserted that the Forest Service’s decision created an illegal buffer zone around a nearby Wilderness area. On February 19, 1991, the Defendant United States Forest Service denied the Plaintiff’s appeal and affirmed the decision to implement the Plan.
On March 4,1991, the Plaintiff submitted a Request for Discretionary Review to Defendant Edward Madigan, the Secretary of Agriculture, in order to exhaust all administrative remedies. The Plaintiff alleges that no response was received, thus, it asserts that exhaustion of remedies has occurred. The Defendants do not challenge this contention.
On October 14, 1991, the Plaintiff filed a complaint with this court seeking injunctive and declaratory relief based on alleged violations of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and of the Washington State Wilderness Act of 1984, Pub.L. No. 98-339, § 9, 98 Stat. 299, 305 (1984).
On March 25, 1992, the Intervenors, a group of nonprofit conservation organizations dedicated to the preservation and proper management of Washington’s public lands, including the national forests located therein, filed a Motion for Leave to Intervene (Ct. Rec. 15). The court granted the Intervenors’ motion in an order filed on April 22, 1992. (Ct.Rec. 33.)
On June 8, 1992, the parties filed their respective cross-motions for summary judgment, which are now before the court.
II. STANDARD OF REVIEW
Under the Administrative Procedure Act, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions' found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law....” 5 U.S.C. § 706(2)(A). The Supreme Court has held that the ultimate standard of review under 5 U.S.C. § 706(2)(A) is a narrow one, noting that a court is not empowered by section 706(2)(A) to substitute its judgment for that of the agency. Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983); see also Sierra Pacific Indus. v. Lyng, 866 F.2d 1099, 1105 (9th Cir.1989). However, the Court also noted that a reviewing court must conduct a searching and careful inquiry into the facts. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971).
In reviewing an agency’s decision under section 706(2)(A), a court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. at 416. After considering the relevant data, the court must “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Manufacturers, 463 U.S. at 43, 103 S.Ct. at 2866 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962)). In order for an agency decision to be upheld under the arbitrary and capricious standard, a court must find that evidence before the agency provided a rational and ample basis for its decision. Washington State Farm Bureau v. Marshall, 625 F.2d 296, 305 (9th Cir.1980).
Further, “[w]here review involves an agency’s construction of the statute it administers, the court must first give effect to the unambiguously expressed intent of Congress.” Sierra Pacific, 866 F.2d at 1105. If the statute is silent or ambiguous concerning the issue in dispute, the court must then determine if the agency’s interpretation of the statute was based on a permissible construction of the statute. Id.
III. STANDARD FOR SUMMARY JUDGMENT
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.1975), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1976). The moving party is entitled to summary judgment as a matter of law where, viewing the evidence and the inferences arising therefrom in favor of the nonmovant, there are no genuine issues of material fact in dispute. Fed. R.Civ.P. 56(c); Semegen v. Weidner, 780 F.2d 727 (9th Cir.1986). When reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141 (9th Cir.1983).
As mentioned previously, this case involves review of a final agency determination under the Administrative Procedure Act, 5 U.S.C. § 706; therefore, resolution of this matter does not require fact finding on behalf of this court. Rather, the court’s review is limited to the administrative record, to which the Plaintiff and the Defendants have stipulated to. (Ct.Rec. 43.) Because this case does not present any genuine issues of material fact, summary judgment is appropriate.
IV. DISCUSSION
The Plaintiffs suit centers on two contentions. First, it argues that the Defendants’ conclusion that “user conflict” required it to close the North Entiat area to ORVs was arbitrary and capricious. The Plaintiff also contends that the prohibition on ORV use in the North Entiat area was intended to create a “buffer zone” around the adjacent Glacier Peak Wilderness Area.
A. Defendants’ Decision to Close the North Entiat Trails to ORV use was not Arbitrary and Capricious
In the Plaintiffs motion for summary judgment, it is argued that the Defendants’ decision to close the North Entiat area to ORVs was not supported by a reasonable basis in fact. The Plaintiff also argues that the Defendants’ decision was not supported by a reasonable explanation of its rationale. In their cross-motions for summary judgment, the Defendants and the Intervenors dispute these contentions and argue that the Defendants’ decision was made after consideration of all of the relevant factors. They also assert that the Defendants did not commit a clear error in judgment in deciding to ban ORV use in the North Entiat area.
1. Defendants had a Rational and Ample Basis to Ban ORVs from the North Entiat Area
As framed by the Plaintiff, the issue before the court is “whether the [administrative] record contains enough evidence of ‘user conflict’ on the North Entiat trails to enable a reasonable person to conclude that such conflict exists.” (Ct.Rec. 45 at page 9.) It is correct that an agency must have a rational and ample basis in fact for its decision. See Washington State Farm Bureau v. Marshall, 625 F.2d 296, 305 (9th Cir.1980). However, “user conflict” is not the only factor in the ORV restriction equation. Pursuant to Executive Order 11644, the Defendants are directed to:
establish policies and provide for procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various users of those lands.
(A.R. 105) (Codified at 36 C.F.R. § 295.-2(a) — use of trails by ORVs that will cause conflicts with other forest visitors will be restricted until the conflict can be eliminated). Although there are several factors which the Defendants had to examine in their decision to exclude ORVs from the North Entiat area, the presence of “user conflict” was chief among their concerns.
The definition of “user conflict” is not found in any regulation, pertinent law, or Forest Service policy. See (A.R. 5 at page 15). Therefore, the procedures for determining the extent of “user conflict” are developed individually for each forest. Id. The Plan in dispute here measured “user conflict” by the extent of user input regarding conflict and the collective experience of Forest Service personnel, including an Interdisciplinary Team established to analyze ORV use in the Wenatchee National Forest. (A.R. 32, Appendix K at page K-86, K-87.) The Plaintiff does not contest the validity of the Defendants’ methodology for determining “user conflict.” (Ct.Rec. 58 at page 3 n. 2.) Rather, it contends that the Defendants’ conclusion that “user conflict” existed was arbitrary and capricious.
For the purpose of this action, it is reasonable to conclude that the Defendants used “conflict” in its normal everyday sense, that is, a “clash or divergence of opinions, interests, etc.; a mental or moral struggle occasioned by incompatible desires, aims, etc.” Webster’s New Collegiate Dictionary (2d Ed.) viewed in light of this definition, the Administrative Record supports the Defendants’ finding that “user conflict” existed in the North Entiat area, thus warranting the closure of the North Entiat area to ORV use. The following is the evidence in the administrative record which supports the Defendants’ findings:
On April 30, 1987, during the development of the Plan, Representative Rod Chandler, of the United States Congress, forwarded a letter to Gary Heath, Acting Supervisor of the Wenatchee National Forest, stating that he had received over 500 letters from people who consider it a definite “conflict” for non-motorized trail users and ORVs to be using the same trails. (A.R. 85.) Representative Chandler also commented that “Wenatchee has become known as the worst National Forest in Washington state for conflict between ORV enthusiasts and non-motorized trail users.” Id.
In addition, the Defendants met with special interest groups, including ORV users, horsemen, and hikers. Through these meetings, the Defendants discovered that the ORV users did not perceive a “conflict” between their use of the Wenatchee National Forest and non-motorized uses. (A.R. 43.) However, the Defendants found that non-motorized users disagreed. In fact, the non-motorized trail users felt that, by allowing the coexistence of motorized and non-motorized trail access in the North Entiat area, the Defendants were not fulfilling their obligation to manage the Wenatchee National Forest so as to avoid “user conflict.” Id.
Further, the Defendants received approximately 3,000 letters during the public comment period of the planning process. As stated in the final EIS: “Not counting the timber industry ballot, [ORV use] received the most comments of any issue. The majority of the comments were against ORV use in general, but especially against any expansion of ORV use_” (A.R. 32, Appendix K at page K-8.) Many of these comments addressed issues concerning ORV use in the North Entiat area. For example:
I have personally spent several days as a volunteer working on trail maintenance of the North Fork Entiat Trail over the past few years_ Unfortunately I have noticed a significant increase in the presence of trailbikes and their destruction in the past two years. The motorbikes tear up the trails and turn them to several inches of dust, and they plow through meadows leaving ruts and destroying wildflower displays. ...
(A.R. 42 at 3429.)
North Fork of the Entiat Valley.... The plan should consider a trail from Cottonwood to Myrtle Lake away from present trail to eliminate conflicts with horseman and hikers going to the wilderness.
(A.R. 42 at 3483.)
If more trails can be constructed to keep ORV users separate from hikers and horseman I thank a lot of conflict can be eliminated.
(A.R. 42 at 26,749.)
I have seen the damage done by the ORVs to trails in the [North] Entiat, and believe that backcountry ORV use should be restricted.
(A.R. 42 at 26,635.)
Hiking areas should be established in the Teanaway and North Fork of the Entiat. Off-road recreational vehicles should be kept in minimum conflict areas. I do not appreciate the roar of trailbikes when I am hiking in our national forests.
(A.R. 42 at 3573.) These comments, and many more like them in the Administrative Record, illustrate the views of a significant number of national forest users who feel that the use of forest trails by ORVs significantly interferes with their use and enjoyment of those same trails.
As a result of the outpouring of public sentiment concerning the alleged conflicts between hikers and ORV users, the Defendants established an Interdisciplinary Team to analyze ORV use in the Wenatchee National Forest. The primary responsibility of the Interdisciplinary Team was to scrutinize the trail system available to ORV users and hikers, study the overlapping interests, and formulate proposals to reduce conflict and address problems identified in the public comments. (A.R. 32 Attachment K at K-86.) “The results of this analysis and the concurrent evaluation of unroaded areas were merged to form the management direction and unroaded area allocation described in the alternatives in the [final] EIS.” Id. Based on the Interdisciplinary Team’s efforts, it was determined that “[t]he most significant opportunity to reduce conflict through the Forest Plan is in allocation of unroaded areas into either RE-2a and 2b, Unroaded Motorized, or RE-3, Unroaded Non-Motorized.... This allocation provides for separation of users on an area basis in some of the more controversial areas.” (A.R. 32 Appendix K at page K-86.)
The Interdisciplinary Team specifically developed several alternatives for the recreational use of the North Entiat area. (A.R. 66.) The alternative adopted by the Defendants, and the one incorporated into the Plan, designated the North Entiat as a semi-primitive, non-motorized area. (A.R. 5 at 19.) One of the reasons the Team adopted this designation was to reduce the conflicts between hikers and motorbikers. (A.R. 66.)
Further evidence of “user conflict” is contained in the Administrative Record at Item 94. This “White Paper on Status of Motorized Trails; Past-Present-Future,” provides the following with respect to conflicts in the North Entiat area:
This trail system has 51.4 miles of trails.... The trail system is popular with the trailbike users. There are two trails that do have conflicts [sic] with other users. They are North Fork Entiat # 1400. This trail is the main entry into the Glacier Peak Wilderness_ The other trail is # 1433-1441 to Pyramid Mt., [it] has had conflicts in the past with the users going on a closed portion of trail 1441.
(AR. 94.)
Based on the foregoing, the Forest Service concluded that “user conflict” exists in the North Entiat area, and in order to fulfill its obligation to reduce such conflict, the Forest Service decided to close the North Entiat area to ORV use. The Plaintiff claims that this decision was arbitrary and capricious.
First, the Plaintiff contends that insofar as the “user conflict” determination was based on the experience of Forest Service personnel, it was arbitrary and capricious because the Administrative Record contains no information on the specific “experience” of Forest Service personnel. In their briefs, neither the Defendants nor the Intervenors point to any place in the Administrative Record that indicates what events Forest Service personnel experienced that would justify a conclusion that “user conflict” existed in the North Entiat area. Further, when questioned about this during argument, the Defendants were unable to point to any place in the Administrative Record that specifically indicated what the personal experiences of the Forest Service personnel referred to in the Plan were. The Defendants do assert that the results of the Interdisciplinary Team’s study were, in part, based on the experiences of Forest Service personnel. However, the Defendants have not cited, nor has the court found, any direct statements from the Interdisciplinary Team that illustrate the personal experiences of Forest Service employees. If this court were only to consider the experiences of the Forest Service personnel, the court would have a difficult time upholding the Defendants’ decision to designate the North Entiat RE-3; however, this was not the only basis for the Defendants’ decision. In fact, it appears that the public comments received by the Defendants were the primary basis for the Defendants’ finding of “user conflict” in the North Entiat area, not the experience of Forest Service personnel. However, the Plaintiff also argues that the public comments do not justify the Defendants’ decision.
The Plaintiff asserts that most of the comments expressed the author’s opposition to ORV use generally, and those that did discuss conflicts did so only in vague terms. Further, the Plaintiff urges the court to disregard the public comments because they were made by “interested” persons. The Plaintiff claims that none of the comments were independently verified by the Defendants, and even though the Defendants acknowledged that monitoring of conflicts was necessary, no monitoring ever took place. (AR. 78.)
The Plaintiff strenuously contends that the comments made should be disregarded because the individuals are interested parties and their comments were unverifiable. The Plaintiff would have the Defendants attempt to somehow objectively quantify the extent of conflict. Citing Mobil Oil Corp. v. Federal Power Comm’n, 483 F.2d 1238, 1260 (D.C.Cir.1973), the Plaintiff argues that informal comments, like the ones offered in this case, cannot justify the Defendants’ decision because it is the process of testing and illumination that is a necessary part of reasoned decision making. Mobil Oil however, dealt with an agency setting rates for the transportation of liquid hydrocarbons. This endeavor is quite a bit different than the Defendants’ task in this case, for rates are quantifiable and can be objectively analyzed and tested, whereas “user conflict” has a significant subjective element to it. In this respect, Mobil Oil and the other eases cited by the Plaintiff in attempt to discredit the use of informal public comment to determine the existence of “user conflict” are distinguishable.
Individual comment is a very persuasive indicator of “user conflict,” for determining the existence of conflicts between humans cannot be numerically calculated or counted; rather, the existence of conflict must be evaluated. The court can envision no better way to determine the existence of actual past or likely future conflict between two user groups than to hear from members of those groups.
The Plaintiff also argues that the public comments did not directly discuss “user conflict” in the North Entiat; rather, the Plaintiff asserts that they just discussed a general dislike to ORVs. It is true that a majority of the public comments did not specifically state that ORV use “conflicts” with non-motorized uses and that many of the comments focused on the philosophical aversion many people hold toward ORV use; however, the intent of the comments is clear. In the minds of the individuals who commented on the issue, the noise, dust, trail damage, exhaust, and safety concerns caused by ORV use significantly reduces, or eliminates, the experience they seek while in the forest. (A.R. 43.) Though not phrased as such by the authors of the comments, the court finds that the comments indicated that a general “conflict” exists between the two user groups in the Wenatchee National Forest, including the North Entiat area.
Further, the Plaintiffs contention that the public comments are unverifiable does not mandate a finding that the Defendants’ decision was arbitrary and capricious. The Plaintiff has offered, and the court has found, no statute or regulation that required the Defendants to independently verify public comments made in connection with the proposed plan for the Wenatchee National Forest. As the fact-finder in this case, the Defendants were in the best position to determine the credibility of the comments offered by the public establishing the existence of “user conflict” in the North Entiat. Sitting as an appellate court in this matter, the court will not reverse the Defendants’ implicit determination that the public comments accurately portrayed the thoughts and beliefs of the authors.
Plaintiff also points to Forest Supervisor O’Neal’s October 3, 1988 letter where he stated that “monitoring efforts by the Entiat Ranger District personnel have been sketchy to date because of a lack of adequate personnel to do the monitoring.” (A.R. 43.) The Plaintiff argues that this illustrates the Defendants’ failure to verify the existence of “user conflict” in the North Entiat. However, the Plaintiff has pointed to no statute or regulation which mandates monitoring before implementation of a Land and Resource Management Plan. Regulations do require monitoring in order to review the management direction of the Plan and to ensure that the Plan is meeting its goal of protecting the productivity of the land and environmental values. See 36 C.F.R. § 219.12(k) and 36 C.F.R. § 219.10(f). This ongoing monitoring is required because the Plan is reviewed annually and can be amended. 16 U.S.C. § 1604(f)(4). However, the court finds that the Forest Service was under no obligation to perform physical monitoring of “user conflict” before the Plan was completed. Consequently, the court finds that even if the Defendants failed to adequately monitor the North Entiat area for actual “user conflicts,” this failure would not render their decision to close the North Entiat area to ORVs arbitrary and capricious.
The Plaintiff further contends that the Defendants failed to establish that actual conflicts existed in the North Entiat area. The Plaintiff again points to the October 3, 1988 letter by Forest Supervisor Sonny J. O’Neal, written after the decision to close the North Entiat area was made, which stated that based on the monitoring conducted to date, “no on-the-ground conflicts between users have been documented in the area.” (A.R. 43.) The court might be persuaded by the Plaintiffs argument if the Defendants were instructed to minimize actual conflicts; however, this is not the case.
36 C.F.R. § 295.2(a) provides that if the Forest Service’s analysis underlying its land management plan indicates that the use of ORVs will cause considerable adverse effects, use of the type of ORV likely to cause such adverse effects will be restricted or prohibited. Taken in its entirety, section 295.2(a) commands the Forest Service to restrict ORV use when there is a future likelihood that considerable adverse effects would result from ORV use. Given the fact that the words “will” and “likely” were used in section 295.2(a), it cannot be said that the regulation requires evidence of past actual conflicts before use restrictions can be imposed. If it was intended that ORV restrictions be imposed only alter actual conflict occurred, appropriate language would have been used to so specify. In other words, it the regulation was only intended to trigger ORV use restrictions when conflicts had actually occurred, the wording of section 295.-2(a) would likely read “[i]f the analysis indicates that the use of one or more vehicle types off roads has caused....” instead of “[i]f the analysis indicates that the use of one or more vehicle types off roads will cause_” Further, 36 C.F.R. § 295.2(b), which discusses the Forest Service’s charge to minimize “user conflict” when developing ORV use plans, does not require that actual conflicts exist before restrictions on ORV use can be imposed. In fact, the language of section 295.2(b)(3) suggests just the contrary: “Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands.... ” (Emphasis added.) By directing the Forest Service to minimize conflicts between ORVs and proposed recreational uses, the regulation must be read as contemplating likely future conflicts because there can be no actual conflict with a proposed activity.
Under the codification of the applicable Executive Order, the court concludes that the Defendants were charged to minimize likely future conflicts between forest users. The Executive Order does not require a factual recitation of actual confrontations. If the Plaintiffs position was accepted, the Forest Service would only have to restrict ORV use if actual physical altercations between two user groups occurred. In light of the Executive Order and 36 C.F.R. § 295.2, the court rejects the argument that the Forest Service’s role in minimizing user conflicts is strictly reactive. The Executive Order, and its codification, must be read as inherently granting the Forest Service authority to prevent physical confrontations and to execute its planning and land management authority in a preemptive manner. The court determines that by anticipating confrontations and enacting appropriate regulations to prevent them, the Defendants honor the intent and spirit of the Executive Order and 36 C.F.R. § 295.2.
Finally, the Plaintiff, during argument, stated that the Forest Supervisor sent a letter to Representative Chandler claiming that no “user conflict” existed in the North Entiat. However, a review of two letters sent by the Forest Service indicates that Representative Chandler was told that “user conflict” existed. In a letter dated December 1, 1986, Forest Supervisor Donald H. Smith informed Representative Chandler that “Entiat and Nacnes Ranger Districts are the only ones that had documented conflicts [between motorized and non-motorized users]. These consist of 12 letters that have been received indicating various degrees of conflict.” (A.R. 91.) Moreover, in a June 9, 1987 letter, Acting Forest Service Supervisor Gerald G. Heath told Representative Chandler that “[s]ince the Wenatchee Forest has more trail use than any other National Forest in the state, and more trailbike use than all the other forests combined, it seems logical that there is more potential for conflict here than elsewhere. Yet the reports of actual conflicts received by our Ranger Districts are very few.” (A.R. 82.) These letters directly contradict the Plaintiffs assertion that Representative Chandler was told that no “user conflict” existed in the Wenat-chee National Forest, including the North Entiat.
In sum, the court finds that the issue of ORV use in the North Entiat area poses a philosophical struggle occasioned by incompatible desires and aims between ORV users and non-motorized trail users. The Defendants rationally found that ORV users and other non-motorized trail users were, or were likely to be, in “conflict” with one another in the North Entiat area. Moreover, the court finds sufficient evidence in the record that the Defendants’ designation of the North En-tiat area as semi-prhnitive, non-motorized, was for the protection of the resources on the land, as well as to ensure the safety of all land users. The court finds that the evidence considered by the Defendants, including reliance on user comments, Forest Service personnel professional judgment, and the findings of the Interdisciplinary Team, provided them with a rational and ample basis for its decision to close the North Enti-at area to ORV use. The court determines that the Defendants considered all relevant factors, including the actual and likely future “conflict” between ORV users and hikers, in rendering its decision, and that decision did not amount to a clear error of judgment. Consequently, the court finds that the decision to close the North Entiat area to ORV use was not arbitrary and capricious, in violation of the Administrative Procedures Act.
2. Defendants’ Decision to Close the North Entiat Area to ORVs is Supported by a Reasonable Explanation
As stated previously, an agency must articulate a satisfactory explanation for its action. There must be a rational connection between the facts found and the choices made. Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). The agency’s explanation must be sufficient to permit effective judicial review, see S.E.C. v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577-78, 91 L.Ed. 1995 (1947), and the reviewing court should not attempt to make up for deficiencies in the agency’s decision. Motor Vehicle Manufacturers, 463 U.S. at 43, 103 S.Ct. at 2866-67. A court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Id. However, a court can uphold an agency decision “of less than ideal clarity if the agency’s path may reasonably be discerned.” Id.
In the case at bar, the Plaintiff contends that the Defendants did not set forth a satisfactory explanation for their conclusion that “user conflict” required the closure of the North Entiat area to ORV use. The essence of the Plaintiffs argument is that the Defendants failed to articulate a connection between the facts found and their conclusion that ORV use conflicted with non-motorized uses. Although not a model of clarity, the court finds that it can discern the Defendants’ decision-making path from the Administrative Record, and concludes that there exists in the record a satisfactory explanation for the Defendants’ decision.
The rationale for closing the North Entiat area to ORV use is contained in the Plan’s “Record of Decision.” (A.R. 30.) The Record of Decision states that conflicts between recreational users, including hikers and ORV users, are becoming more common. The Record of Decision goes on to state that:
[bjetween the draft and final, the Forest initiated an intensive analysis of trail management, including semi-primitive motorized and non-motorized recreation opportunities, on the entire Forest, District by District, based on public comments to the [draft EIS] and personal experience of professionals. The main purpose of the analysis was to find the proper balance between motorized and non-motorized trails for the Forest.
Id. at 21 (emphasis added). The Record of Decision also provides that the decision to prohibit ORV use in the North Entiat area, along with other aspects of the Plan, will “provide a proper balance of trail opportunities between motorized and non-motorized users and, hence, reduce the potential for conflict.” Id. (emphasis added).
Further, the final EIS states that the Defendants had received extensive comments expressing high levels of concern about conflicts between ORV users and hikers. According to Sonny J. O’Neal, Wenatchee National Forest Supervisor: “Most complaints were from hikers, and some mentioned noise, exhaust, dust, interruptions, and safety as the main source of conflict.” (A.R. 43.) To address the concerns raised by these comments, an Interdisciplinary Team was formed. The Interdisciplinary Team’s analysis was merged with the Defendants’ evaluation of the unroaded areas and the public’s comments to arrive at an allocation of trail miles available for different uses, including hiking and motorized use. (A.R. 32 Appendix K at page K-86.) According to the final EIS, “[t]hese allocations were made in an effort to provide opportunities for motorized use and hiking in a variety of settings. They also seek to match the designated use to the other resource values of the immediate areas and reduce user conflicts.” Id. at K-87.
As mentioned previously, the Interdisciplinary Team developed several alternative plans to address the ORV/hiker conflict. The alternative that was eventually incorporated into the final Plan called for closure of the North Entiat area to ORV use. In its analysis of each alternative, the Interdisciplinary Team listed the “pros” and “cons” of each alternative. What follows are the “pros” and “cons” of the preferred alternative:
Pro — Reduce overall reconstruction costs.... Provide contiguous area outside Wilderness for nonmotorized trail experience. Reduces conflicts between hikers and motorbikers. Make law enforcement easier. Does not effect the agreement with I.A.C. Adds protection of Wilderness from motorized use violations. Con— Alienates a User Group. Restricts motorized use to fewer trail miles — Causing greater impacts on the remaining trails. Eliminates a reasonable access by motor bikes to a destination spot (Fern Lake.) Gives hiker/horse group exclusive use of North Fork area and they can still share Mad River area.
(A.R. 66) (emphasis added).
The Plaintiff’s contention that the Defendants failed to articulate any connection between “facts found” and their conclusion that ORV use “conflicted” with non-motorized uses in the North Entiat is without merit. In the excerpts from the Administrative Record cited above, the Defendants clearly state that based on public comments, professional experience, and the analysis of the Interdisciplinary Team, non-motorized trail users’ enjoyment of the North Entiat area of the Wenatchee National Forest was hindered by the presence of ORVs. The Defendants concluded that this hinderanee was a sufficient “conflict” to justify the closing of the North Entiat area to ORV use. In other words, the Defendants “found” that the noise, dust, trail damage, exhaust, and safety concerns caused by ORV use in the North Entiat area “conflicted” with non-motorized trail use by reducing the enjoyment experienced by non-motorized trail users in the North Entiat area. (A.R. 43.) This articulation is sufficient for this court to execute effective judicial review, and in so doing, the court finds that there was a rational relationship between the facts found by the Defendants and the closing of the North Entiat area to ORV users. Further, the court finds that the Defendants’ desire to provide a proper balance of trail opportunities between motorized and non-motorized users and to reduce “user conflict” was a reasoned basis for the Defendants’ decision to close the North Entiat area to ORV use.
During argument, the Plaintiff asserted that because the Defendants had historically allowed ORV use in the North Entiat area, they had to support ORV use restriction in the North Entiat with a greater justification than would have been necessary if no ORV use had ever been permitted in the area. In support of its position, the Plaintiff cites Motor Vehicle Manufacturers, 463 U.S. at 42, 103 S.Ct. at 2866, where the Supreme Court stated that “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” The Plaintiff argues that this “reasoned analysis” must explain why the agency chose to deviate from prior policy.
The court disagrees that the Defendants in this case changed their policy. Rather, they modified a “plan” to further an existing policy, which is to minimize user conflict. Further, the cases cited by Plaintiff prohibit policy changes without a principled reason to do so. Even if the closure of the North Entiat was viewed as a policy change, it was, as discussed supra, based on a rational and principled reason: to minimize “user conflicts” in the North Entiat.
B. The Plan Did Not Create a “Buffer Zone" Around a Wilderness Area in Violation of the Washington State Wilderness Act of 1984
The Plaintiffs position is that the Washington State Wilderness Act of 1984 explicitly bars the creation of buffer zones around Wilderness areas. The Plaintiff contends that the Defendants eliminated ORV use in the North Entiat area, in part, to buffer the adjacent Glacier Wilderness Area (“Glacier”) from the possibility of negative impacts caused by ORV use. The Plaintiff asserts that the Plan creates a defacto buffer zone around Glacier.
Section 9 of the Washington State Wilderness Act of 1984 [the Wilderness Act] provides:
Congress does not intend that designation of wilderness areas in the State of Washington lead to the creation of protective perimeters or buffer zones around each wilderness area. The fact that non-wilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.
P.L. 98-339, § 9, 98 Stat. 299, 305 (1984).
An unambiguous statute must be applied according to its plain meaning. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). The Plaintiff contends that the Wilderness Act is unambiguous and strenuously argues that the “plain language” of the Wilderness Act bars all buffer zones and protective perimeters around Wilderness areas, without exception.
The Defendants contend that section 9 of the Wilderness Act does not require buffer zones around Wilderness areas. This reading of the Wilderness Act is a reasonable one it the second sentence of section 9 is ignored. However, when section 9 is considered in total, it is clear that Congress intended that protected zones around Wilderness areas cannot be created if the only reason for their existence is to protect the Wilderness area from the effects of uses on adjoining nonwild-erness lands. In this respect, the Plaintiff is correct that the Wilderness Act prohibits buffer zones around Wilderness areas. This conclusion, however, does not necessitate reversing the Defendants’ decision in this case.
To the extent an activity is prohibited on land adjacent to a Wilderness area solely because of its potential effect on the Wilderness area, the prohibition would likely violate the Wilderness Act’s prohibition of buffer zones. However, if an activity is prohibited, in part, for reasons other than the possible effect that activity will have on an adjoining Wilderness area, it is not an impermissible buffer zone under the Wilderness Act. The Wilderness Act clearly prohibits use restrictions on nonwilderness areas based solely on the potential impact that use might have on the Wilderness. Congress’ intent on this point is manifested through its express language in section 9 of the Wilderness Act: “The fact that nonwilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.” (Emphasis added.) When Congress used the words “of itself,” it implicitly stated that the effects on a Wilderness area can be considered when allocating uses of adjoining nonwilderness area, so long as it is not the only reason. Therefore, contrary to the Plaintiffs position, the Wilderness Act does not prevent the Forest Service from considering the Wilderness classification of adjoining land as a factor in developing the Land and Resource Management Plan for the non-wilderness area.
The Plaintiff, in its Reply Brief, argues that the Wilderness Act places just one limit on the Defendants’ authority to impose use restrictions on the North Entiat: the Defendants may not eliminate a nonwilderness multiple use, like ORVs, in order to insulate a Wilderness area from that use. The Plaintiff is correct insofar as it states that the Defendants could not have properly prohibited ORV use in the North Entiat area solely because of the potential effect such use would have on Glacier. However, the Plaintiff is incorrect to the extent it argues that the Defendants could not have permissibly considered the impact of ORV use in the North Entiat on Glacier as a factor in their Land and Resource Management Plan. As discussed above, the primary reason ORVs were precluded from the North Entiat area was to reduce “user conflicts.” The fact that this determination was additionally based on other factors, including the proximity of the North Entiat area to Glacier, does not invalidate it.
The Plaintiff argues that if this court allows the Defendants’ Plan to stand, “it would allow the Forest Service to buffer designated wilderness by barring nonwilderness multiple uses from nearby zones without fear of judicial reversal.” (Ct.Rec. 45 at page 17.) It is true that the Defendants in this case have barred ORV use in land adjoining a Wilderness area. However, contrary to the Plaintiffs assertion, this was not done without judicial review. The court has already found that the Defendants’ decision was not arbitrary and capricious based, in part, on its determination that “user conflicts” existed in the North Entiat area. This finding ends the buffer zone inquiry under the Wilderness Act, for it establishes that a protective zone was not created solely to protect a Wilderness area from the effects of uses on adjoining nonwilderness land.
V. CONCLUSION
The court determines that the Defendants’ decision to prohibit ORV use in the North Entiat area based primarily on the existence of actual and/or likely future “user conflict” in the area was not arbitrary or capricious. Further, the court finds that the designation of the North Entiat area as RE-3, Dispersed Recreation, Unroaded, Non-Motorized, was not created solely as a buffer zone around Glacier Peaks Wilderness in violation of the Washington State Wilderness Act of 1984. Consequently, because there exist no genuine issues of material fact and the Defendants and Intervenors are entitled to judgment as a matter of law, the Defendants’ and Interve-nors’ cross-motions, for summary judgment should be granted.
IT IS HEREBY ORDERED:
1. The Plaintiff’s Motion for Summary Judgment (Ct.Rec. 44) IS DENIED.
2. The Defendants’ Cross-Motion for Summary Judgment (Ct.Rec. 36), and the Intervenor’s Cross-Motion for Summary Judgment (Ct.Rec. 39) ARE GRANTED and the Complaint shall be DISMISSED WITH PREJUDICE.
IT IS SO ORDERED. The Clerk is hereby directed to enter this Order, furnish copies to counsel, and close the file.
DATED this 7th day of August 1992.
. The Defendants’ obligation referred to by the non-motorized trail users is contained in 36 C.F.R. § 295.2(a). 1: "If the analysis indicates that the use of one or more vehicle types off roads will cause considerable adverse effects on the resources of other forest visitors, use of the affected areas and trails by the vehicle type or types likely to cause such adverse effects will be restricted or prohibited....”
. The Plaintiff claims that its organization would have offered more letters in support of its position, but the Defendants had earlier represented that the quality of ideas was more important than the quantity. Apparently, therefore, the Plaintiff's members did not send as many comments in on this issue as they could have.
The fact that the Plaintiff's organization did not publish as many letters in support of its position as it could possibly have does not alter the court's finding in this case. The court here is reviewing the evidence only to determine whether such evidence existed that justified the Defendants’ decision. Because the court finds that the Defendants could have rationally based their decision on the comments made, the court concludes that additional comments made to the contrary by the Plaintiff's members would have only gone to the weight of the evidence and, therefore, would not have altered this court’s judgment.
. In its Response brief, the Plaintiff alleges that the decision to close the North Entiat area to ORV use was based on political pressure. The Plaintiff supports its contention by referring to Representative Chandler's letter to the Defendants regarding "user conflict." In that letter, Representative Chandler stated that he received over 500 letters from individuals who consider it a conflict for non-motorized trail users and ORV users to be using the same trails. The Plaintiff claims that this "pressure" resulted in an improper motivation to close the North Entiat area to ORV use. This court cannot conclude that the Defendants' decision to prohibit ORV use in the North Entiat area was arbitrary and capricious because a Congressman conveyed his constituents’ views on “user conflict” to the Forest Service. What the Plaintiff refers to as "political pressure" is how the individual voice is heard in our form of government. By forwarding letters of concern to the Forest Service, Representative Chandler was not applying "political pressure,” he was fulfilling his sworn obligation to his constituents.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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WISDOM, Senior Circuit Judge.
This case is before us for the second time, having been remanded by the United States Supreme Court. See Illinois v. Outboard Marine Corp., 619 F.2d 623 (7th Cir. 1980). The facts of the case and early history of the litigation appear in our prior opinion, and we do not repeat them here. 619 F.2d at 624-25. When the case was last before us we held, in No. 79-1341, that the federal common law of nuisance for water pollution, recognized in Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (Milwaukee I), extended to Illinois’s claim against an in-state industrial polluter of navigable waters, in this case Lake Michigan. 619 F.2d at 630. We also held, in No. 79-1725, that § 505(b)(1)(B) of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1365(b)(1)(B), gives Illinois a right to intervene in the Federal Government’s action under the FWPCA. 619 F.2d at 632. The defendant, Outboard Marine Corp. (OMC), petitioned for a writ of certiorari in the United States Supreme Court. The Court granted the writ, Outboard Marine Corp. v. Illinois, 451 U.S. 917, 101 S.Ct. 3152, 69 L.Ed.2d 1000 (1981) (mem.), vacating and remanding our judgment for further consideration in the light of Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) (Milwaukee II).
Milwaukee II held that the 1972 amendments to the FWPCA, Pub.L.No.92-500, 86 Stat. 816, pre-empted Illinois’s federal common law claims against Milwaukee for pollution of Lake Michigan. 451 U.S. at 317, 101 S.Ct. at 1792, 68 L.Ed.2d at 126. Subsequently, the Supreme Court decided Middle-sex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1,101 S. Ct. 2615, 69 L.Ed.2d 435 (1981), in which it rejected a claim by a private organization seeking damages under the federal common law for pollution of coastal waters. The Court based its conclusion on the broad statement that Milwaukee II “held that the federal common law of nuisance in the area of water pollution is entirely pre-empted” by the 1972 amendments to the FWPCA. 451 U.S. at 22, 101 S.Ct. at 2627, 69 L.Ed.2d at 452.
On remand, Illinois, and the United States as amicus curiae, concede that Milwaukee II governs claims against OMC for pollution occurring since the enactment of the 1972 amendments. But they argue that Illinois retains its rights under federal common law to abate a nuisance resulting from the discharge of pollutants prior to 1972. OMC asks us to hold that the federal common law remedy for pre-1972 pollution of navigable waters is pre-empted under Milwaukee II. We agree with OMC. OMC also invites us to reconsider our decision that Illinois has a right to intervene in the federal government’s suit against OMC. Because we find that nothing in Milwaukee II affects this issue, we leave our previous judgment on the intervention question intact.
I.
Our consideration of the case on remand necessarily begins with a discussion of Milwaukee II. Illinois sued Milwaukee and its city and county sewerage commissions, seeking relief from pollution created by sewage discharges that overflowed into Lake Michigan. Illinois was concerned with both the level of pollutants in the sewage and the fact that the discharges occasionally — particularly in wet weather — overflowed directly into the lake. The cause of action was asserted under the federal common law of nuisance recognized in Milwaukee I.
In considering Illinois’s claims, the Supreme Court first noted that “[fjederal courts, unlike state courts, are not general common law courts”, 451 U.S. at 312, 101 S.Ct. at 1790, 68 L.Ed.2d at 123 (citing Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938)), and that formulation of federal rules of law is a function more appropriate to the political than the judicial process. Id. at 313 & n.6, 101 S.Ct. at 1790, 68 L.Ed.2d at 123-24 (quoting Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 497 (1954)). See also Hill, The Law-Making Power of the Federal Courts: Constitutional Pre-emption, 67 Colum.L.Rev. 1024, 1080 (1967). Federal common law, the Court reasoned, is thus appropriate only when a court is compelled to consider a federal question to which Congress has not provided an answer. The making of federal common law is an “unusual exercise”, the need for which disappears when Congress addresses the question. 451 U.S. at 314, 101 S.Ct. at 1791, 68 L.Ed.2d at 124.
The Court relied heavily on Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), and Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). In Arizona v. California, several western states engaged in a dispute concerning their respective rights to the water of the Colorado River. The Supreme Court held the judicial doctrine of equitable apportionment inapplicable to the case, because Congress had enacted a method for allocating the water. In Higginbot-ham, the Court refused to allow damages for “loss of society” under the general maritime law, because such damages were unavailable under the Death on the High Seas Act, 46 U.S.C. § 761 et seq. Drawing on the language and reasoning of these two cases, the Court in Milwaukee II concluded that Congress can displace otherwise valid federal common law by enacting legislation in the area. This pre-emption does not depend on whether Congress has “affirmatively proscribed the use of federal common law”. 451 U.S. at 315,101 S.Ct. at 1791, 68 L.Ed.2d at 125. Rather, the question is whether Congress has “addressed the problem”. Id.
Turning to the claims before it, the Supreme Court found relief under federal common law unavailable, because Congress had “occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency”. Id. at 316, 101 S.Ct. at 1792, 68 L.Ed.2d at 126. The Court studied the legislative history and found considerable evidence that the 1972 amendments were intended as a comprehensive — and by implication exclusive — solution to the problem of water pollution. Id. at 316-319, 101 S.Ct. at 1792-93, 68 L.Ed.2d at 127-28. More specifically, the Court also found that the FWPCA directly addressed the precise problems for which Illinois sought relief. The effluent limitations established by the Environmental Protection Agency under the Act, see § 301, 33 U.S.C. § 1311, and incorporated into Milwaukee’s sewage discharge permits, see § 402(b)(1), 33 U.S.C. § 1342(b)(1), set the federal standards for legal levels of pollutants in discharged sewage and, the Court found, made common law standards unnecessary. 451 U.S. at 318-319, 101 S.Ct. at 1793-94, 68 L.Ed. at 128. Sewage overflows into Lake Michigan presented no different problem, the Court said, since they are governed by the same permit scheme as the discharges themselves. Id.
Nothing in the Court’s opinion in Milwaukee II implies that Congress could not choose to preserve federal common law, even while enacting a parallel legislative solution. The Court considered this possibility but was not persuaded that Congress intended to do this in the FWPCA. Id. at 324r-332,101 S.Ct. at 1796-1800, 68 L.Ed.2d at 132-36. Since Congress had “addressed the problem” and had not chosen to preserve federal common law remedies, the Court concluded that Illinois had no such remedy available.
II.
Against this background we must consider whether the 1972 amendments to the FWPCA displaced the federal common law remedy for nuisances resulting from discharges of pollutants into navigable waters before '1972. Illinois and the United States argue that the common law action survives Milwaukee II, because the 1972 amendments do not address this particular problem. OMC argues that several provisions of the 1972 amendments do address pre-1972 pollution. Specifically, OMC refers to the provision that authorizes the Administrator of the EPA, in cooperation with the Secretary of the Army, to arrange for removal of in-place toxic pollutants, and appropriates funds for this purpose, § 115, 33 U.S.C. § 1265. In addition, OMC relies on the provision authorizing the EPA to enter into agreements with states and municipalities to demonstrate the feasibility and practicality of removing pollutants from the Great Lakes, § 108(a), 33 U.S.C. § 1258(a); the provision directing the EPA to develop practical methods for eliminating “the effects of pollutants from in-place or accumulated sources”, § 105(a), 33 U.S.C. § 1255(a); and the provision authorizing federal funds for state cleanup projects under EPA guidelines, § 314, 33 U.S.C. § 1324. These provisions, according to OMC, represent Congress’s solution to the problem of pre-1972 pollution and displace any federal common law solution.
The issue between the parties is thus how broadly to define the “question” that Congress must “address” to displace federal common law. Illinois and the United States invite us to consider that Congress has not addressed the narrow problem of requiring a polluter to abate the nuisance he created before 1972. OMC argues that Congress has “addressed the question”, since it has addressed the broader problem of pre-1972 pollution, even if it has not done so by means of remedies against the polluters themselves.
Illinois’s characterization of the issue is not an unreasonable one. The 1972 amendments do not provide any recourse against a polluter for pre-1972 pollution. The discharges at issue in Milwaukee II, by contrast, were governed by EPA standards enforceable against the polluter, by means of criminal penalties, § 309(c), 33 U.S.C. § 1319(c), civil suit by the Administrator, § 309(b), 33 U.S.C. § 1319(b), private suit, § 505, 33 U.S.C. § 1365, and civil suit by a state, see Massachusetts v. United States Veterans Administration, 541 F.2d 119, 121 n.1 (1st Cir. 1976) (construing § 502(5), 33 U.S.C. § 1362(5)). Moreover, the Court in Milwaukee II considered it “significant” that the 1972 amendments gave Illinois a forum in which to protect the interests at issue, “one of the major concerns underlying the recognition of federal common law” in Milwaukee I. 451 U.S. at 324, 101 S.Ct. at 1796, 68 L.Ed.2d at 132. Illinois’s concerns in the case before us have no similar forum under the statute. Finally, both Arizona v. California and Mobil Oil Corp. v. Higginbotham, upon which the Court in Milwaukee II relied most heavily, involved (as did Milwaukee II itself) the enactment by Congress (or, in the case of Milwaukee II, the delegation to an administrative agency) of rules of decision to govern particular types of conflicts previously governed by judicial rules of decision. The 1972 amendments, however, include no explicit rule for deciding suits against polluters for pre-1972 pollution. It is thus not wholly without foundation to argue, as Illinois and the United States do, that the reasoning of Milwaukee II extends only to cases in which Congress necessarily displaces a judicially fashioned rule by enacting a statutory one — and that it thus does not extend to the present case.
Nevertheless, we are convinced that this conception of the issue is too narrow, as is the reading of Milwaukee II that supports it. The heart of the Court’s decision was the comprehensiveness of the 1972 amendments as a solution to the entire problem of water pollution. See 451 U.S. at 316-319, 101 S.Ct. at 1792-93, 68 L.Ed.2d at 126-28. Although the Court considered in detail the manner in which the FWPCA addressed the specific problems for which Illinois sought common law relief, the decision did not depend on this. Any possible doubt concerning the breadth of Milwaukee IFs holding was resolved in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). In Sea Clammers, the Court rejected a common law claim for relief from pollution of coastal waters, saying only that the 1972 amendments “entirely pre-empted” the federal common law of nuisance for water pollution and that “there is no reason to suppose the pre-emptive effect of the FWPCA is any less when pollution of coastal waters is at issue”. Id. at 22, 101 S.Ct. at 2627, 69 L.Ed.2d at 452. More important, the Court held that to the extent the pollution complained of involved ocean waters not covered by the FWPCA, the federal common law was displaced by the Marine Protection, Research, and Sanctuaries Act of 1972, Pub.L.No.92-532, 86 Stat. 1052 (MPRSA). In support of this conclusion the Court said only that “[t]he regulatory scheme of the MPRSA is no less comprehensive, with respect to ocean dumping, than are analogous provisions of the FWPCA”. 451 U.S. at 22,101 S.Ct. at 2627, 69 L.Ed.2d at 452. Sea Clammers thus makes it clear that the result in Milwaukee II rested on the comprehensiveness of the 1972 amendments in addressing the problem of water pollution, and not on the fact that the amendments addressed some aspect of the problem in a particular way. Milwaukee II and Sea Clammers, taken together, establish that the “question” Congress “addressed” in the 1972 amendments was the entire question of water pollution. The displacement of federal common law must, under the reasoning of Milwaukee II, be equally broad.
Even if the 1972 amendments had not displaced the entire federal common law of nuisance in this area, we would have to find that they pre-empted the claims now before us. There can be no doubt that Congress in enacting the 1972 amendments considered the residual effects of pre-1972 discharges. The enactment of § 115, 33 U.S.C. § 1265, see note 5 supra, is proof enough of this. Moreover, although § 115 was added in Conference and had no counterpart in either the House or the Senate bill, see S.Rep. No.1236, 92d Cong., 2d Sess. 109 (1972) (hereinafter Gonf.Rep.), reprinted in 1 Committee on Public Works, A Legislative History of the Water Pollution Control Act Amendments of 1972, at 292 (1973) (hereinafter Leg.Hist), U.S.Code Cong. & Admin. News 1972, p. 3668, the debate on the Senate bill demonstrates that the legislators were both familiar and concerned with the “serious problem of in-place or accumulated sources of pollution” throughout their consideration of the general problem of water pollution. 2 Leg.Hist. at 1311 (statement of Sen. Múskie). The enactment of § 4(a), Pub.L.No.92-500 § 4(a), 86 Stat. 896-97, which preserves those prosecutions under the Refuse Act of 1899,33 U.S.C. § 407, that were begun before October 18, 1972, provides further evidence that Congress considered the problem of pre-1972 discharges, and specifically the appropriate role in the statutory scheme for remedies against polluters. Since Congress has obviously considered the problem of pre-1972 discharges, and enacted some solution, we cannot hold, after Milwaukee II, that the federal common law of nuisance continues to afford a remedy for those discharges. Illinois and the United States urge us, as discussed above, to find that Congress has not “addressed the question” because it has not enacted a remedy against polluters. Adopting this distinction, however, would be no different from holding that the solution Congress chose is not adequate. This we cannot do. The lesson of Milwaukee II is that once Congress has addressed a national concern, our fundamental commitment to the separation of powers precludes the courts from scrutinizing the sufficiency of the congressional solution. 451 U.S. at 314, 101 S.Ct. at 1791, 68 L.Ed.2d at 125 (quoting TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)). “The question is whether the field has been occupied, not whether it has been occupied in a particular manner.” Id. at 324, 101 S.Ct. at 1796, 68 L.Ed.2d at 131.
Having found that the 1972 amendments “address the question” of pre-1972 pollution, we must consider the argument that Congress nevertheless intended to preserve the federal common law of nuisance for these discharges. The United States, in its amicus brief, finds support for this conclusion in the House debate on § 115:
This provision, of course, does not affect or preclude actions now underway or planned, such as those planned in the Puget Sound area of Washington in the case of several paper mills, to require that polluters remoye bottom sludge deposits, whether toxic or not, at their expense. .. .
1 Leg.Hist at 154 (statement of Rep. Ding-ell). The quoted remarks, however, are not as helpful to Illinois and the United States as they might seem at first. There is no evidence that Representative Dingell had in mind actions under federal common law specifically. To the extent he may have been concerned with displacing state law remedies, the 1972 amendments apparently addressed his concern. See § 510(1)(B), 33 U.S.C. § 1370(1)(B). In any case, the persuasive force of remarks on the floor is limited, particularly so in this case, since, as OMC points out, Congress did enact a limited savings clause, expressly preserving certain litigation arising from pre-1972 pollution. See Pub.L.No.92-500 § 4(a), 86 Stat. 896-97.
The United States also argues that Congress has adopted a general policy, applicable here, of requiring polluters to pay the cost of removing discharged pollutants, even when the federal government is authorized to undertake the cleanup itself. Section 311(f) of the FWPCA, 33 U.S.C. § 1321, as the United States points out, requires dischargers of oil or hazardous substances to repay the cost of removal by the federal government. See United States v. Marathon Pipe Line Co., 589 F.2d 1305, 1307 (7th Cir. 1978). Similarly, the more recent Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq., establishes a “Superfund” for the cleanup of hazardous wastes, §§ 111, 121, 232, 42 U.S.C. §§ 9611, 9631, 9641, but makes those responsible for their discharge liable for cleanup costs, § 107, 42 U.S.C. § 9607. These provisions, however, cut both ways. Although they may reflect a general policy of holding polluters responsible for cleanup costs, they may equally demonstrate that when Congress chose to implement such a policy it did so explicitly. That one of the cited provisions was included in the 1972 amendments themselves makes the latter argument particularly compelling.
Finally, the United States argues that the federal common law should afford a remedy in this case because this result would advance the FWPCA’s objectives, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”, § 101(a), 33 U.S.C. § 1251(a). This argument, however, proves too much; it also proves too little. It proves too much because the same reasoning would have supported the common law claims in Milwaukee II and would have led to a different result. It proves too little because the legislature’s objectives in enacting the details of a statutory scheme are seldom as simple or uniform as the United States would have us believe. As is often the case, Congress in the 1972 amendments was concerned with balancing complex and conflicting interests. See 1 Leg.Hist. at 352-53 (House Debate, statement of Rep. Blatnik). There is evidence in the Senate debate on the 1972 amendments, for example, that Congress was concerned with economic and other problems associated with the disposal of dredged spoil. 1 Leg.Hist. at 167 (statement of Sen. Muskie). Congress may thus have preferred to retain strict administrative control over cleanup projects. In any event, Milwaukee II makes irrelevant a court’s conclusion that affording relief under the federal common law would advance the objectives of the FWPCA.
We conclude that the arguments of Illinois and the United States do not overcome the “presumption in favor of preemption of federal common law” that Milwaukee II requires whenever Congress has legislated on a subject. United States v. Oswego Barge Gorp., 664 F.2d 327, 335 (2d Cir. 1981). See also Milwaukee II, 451 U.S. at 316, 101 S.Ct. at 1792, 68 L.Ed.2d at 126. Because Congress has comprehensively addressed the question of pollution of navigable waters, and specifically pollution prior to 1972, Illinois’s claims under the federal common law of nuisance cannot survive Milwaukee II.
III.
OMC urges us to reconsider our earlier conclusion that § 505(b)(1)(B) of the FWPCA, 33 U.S.C. § 1365(b)(1)(B), gives Illinois a right to intervene in the United States’s action against OMC under the FWPCA, see 619 F.2d at 632. Although, as OMC points out, the Supreme Court has remanded the entire case for further consideration in the light of Milwaukee II, we do not find that Milwaukee II sheds any new light on the intervention issue.
Section 505(b)(1)(B) authorizes intervention in any action by the Administrator “to require compliance” with a “standard, limitation, or order”. 33 U.S.C. § 1365(b)(1)(B). OMC argues, as it did when we first considered the case, that this language does not embrace “cleanup” actions, in which the government seeks to prevent or ameliorate the continuing effects of past discharges. Under this interpretation, intervention as of right would not be authorized in the present case. We rejected this argument in our previous opinion, 619 F.2d at 631, and we find no hint in Milwaukee II or Sea Clammers that our conclusion then was wrong. To the contrary, if Milwaukee II illuminates § 505(b)(1)(B) at all, it favors our earlier interpretation. The Supreme Court’s emphasis on the comprehensiveness of the statutory scheme, to the exclusion of other remedies, suggests that courts should not unnecessarily narrow the FWPCA’s remedial provisions.
OMC also argues that it has, since this case was last before us, received a new NPDES permit, with which it is now in compliance, and that the present action thus cannot be one “to require compliance”. That OMC has complied with its new permit, however, does not affect the nature of the government’s complaint and does not materially change the situation before us from what it was when we initially allowed intervention. It matters no more now than then that present PCB discharges are not at issue. The United States continues to seek prospective relief from the effects of past discharges, in the form of injunctions and “such other and further relief as [the Court] deems just and proper".
IV.
In summary, Milwaukee II establishes that the 1972 amendments to the FWPCA have displaced Illinois’s claim under the federal common law of nuisance, and that action must be dismissed. Illinois may, however, intervene as of right in the federal government’s action under the FWPCA.
The case is AFFIRMED in part, REVERSED in part, and REMANDED.
. The Court also rejected claims that a private cause of action for damages could be implied under the FWPCA or the Marine Protection, Research, and Sanctuaries Act of 1972, Pub.L. No.92-532, 86 Stat. 1052. Most of the Court’s opinion was devoted to a discussion of these claims. See 451 U.S. at 11-21, 101 S.Ct. at 2621-2627, 69 L.Ed.2d at 445-51. The Court did not find it necessary to discuss the common law claim in detail, dismissing it flatly on the authority of Milwaukee II. Id. at 11-22, 101 S.Ct. at 2621-2627, 69 L.Ed.2d at 445-52.
. Because we agree with OMC that enactment of the 1972 amendments deprived Illinois of any remedy it might otherwise have had under federal common law, we need not consider how Milwaukee II would affect our prior holding conceming Illinois’s right to sue an in-state polluter under federal common law.
. The power of the federal courts to fashion common law rules in specialized areas has been the topic of extensive scholarly commentary. See Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U.L. Rev. 383 (1964). See also sources cited in Illinois v. Outboard Marine Corp., 619 F.2d 623, 625 n.7 (7th Cir. 1980). For a survey of the literature concerning the federal common law of nuisance specifically, see id. at n.12.
. Illinois argued that §§ 510 and 505(e) of the FWPCA evidence a congressional intent to preserve the federal common law governing water pollution. Section 510 of the FWPCA, 33 U.S.C. § 1370, provides that nothing in the Act shall preclude states from adopting and enforcing more stringent limitations than those adopted under the Act. Section 505(e), 33 U.S.C. § 1365(e), the citizen suit provision of the Act, provides that “[n]othing in this section shall restrict any right ... under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief . .. ”, The Court found, however, that § 510 preserves to the states only the power to adopt and enforce their own standards, not the power to require federal courts to develop federal common law standards. 451 U.S. at 329, 101 S.Ct. at 1797-98, 68 L.Ed.2d at 133. The Court’s interpretation of § 505(e) focused on the words “nothing in this section”, which it found to limit the effect of the subsection to the citizen suit provision itself. Section 505(e), the Court said, does not address the pre-emptive effect of the Act as a whole. Id. at 329 & n.22, 101 S.Ct. at 1798 & n.22, 68 L.Ed.2d at 133-34 & n.22. The Court similarly rejected as unpersuasive arguments based on the legislative history of the amendments, which purportedly demonstrated an intent to preserve the federal common law. Id. at 329-332, 101 S.Ct. at 1798-1800, 68 L.Ed.2d at 134-36.
. Section 115, 33 U.S.C. § 1265, provides:
The Administrator is directed to identify the location of in-place pollutants with emphasis on toxic pollutants in harbors and navigable waterways and is authorized, acting through the Secretary of the Army, to make contracts for the removal and appropriate disposal of such materials from critical port and harbor areas. There is authorized to be appropriated $15,000,000 to carry out the provisions of this section, which sum shall be available until expended.
. The Court emphasized that under § 402(b)(3), 33 U.S.C. § 1342(b)(3), any state that may be affected by issuance of a discharge permit by another state has a right to participate in a public hearing on the permit application. Section 402(b)(5), 33 U.S.C. § 1342(b)(5), guarantees affected states the right to submit written recommendations to the permit-granting agencies of other states. And under § 402(d)(2)(A), 33 U.S.C. § 1342(d)(2)(A), the EPA may veto any permit issued by a state if the waters of another state are affected.
. In stating its conclusion that common law relief was unavailable, the Court confined its result with the words “at least so far as concerns the claims of respondents”. 451 U.S. at 316, 101 S.Ct. at 1792, 68 L.Ed.2d at 126. An implication by negative pregnant such as this, however, cannot overcome the Court’s broad reasoning or the unambiguous language of Sea Clammers discussed in the text.
. The United States argues that Milwaukee II does not govern here, because the FWPCA’s treatment of pre-1972 pollution is not as comprehensive as its treatment of the concerns that gave rise to Illinois’s claims in that case. This is in essence the same argument as that addressed in the text: that Congress’s solution to the problem of pre-1972 pollution is inadequate. Our answer must also be the same. We would render meaningless the Supreme Court’s emphasis on the comprehensiveness of the 1972 amendments, if we took it as a mandate to dissect the FWPCA section by section, with a view to finding that parts of it are not “comprehensive”.
. Inasmuch as state law may continue to afford relief in cases of this sort, that relief would apparently be available in this case, since OMC is located in Illinois and presumably subject to Illinois law. See United States Steel Corp. v. Train, 556 F.2d 822, 830 (7th Cir. 1977); Scott v. City of Hammond, 519 F.Supp. 292, 298 (N.D.Ill.1981). Illinois has appended several state law claims to the present action.
. It may be most significant, in the present context, that § 311(f) of the FWPCA is the exclusive remedy for the federal government when it seeks to recover cleanup costs from a polluter covered by the provision. Recovery under the federal common law is unavailable. United States v. Dixie Carriers, 627 F.2d 736, 741 (5th Cir. 1980).
. Section 505(b)(1)(B), 33 U.S.C. § 1365(b)(1) (B), provides, in pertinent part:
(b) No action may be commenced—
(1) under subsection (a)(1) of this section—
(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.
Illinois is clearly a “citizen” for purposes of this provision. Massachusetts v. United States Veterans Administration, 541 F.2d 119, 121 n.1 (1st Cir. 1976) (construing § 502(5), 33 U.S.C. § 1362(5)).
. OMC has filed, with its initial brief on remand, a Motion for Leave to File Certified Agency Records. The certified records consist of a joint motion to stay Illinois administrative proceedings in a dispute between the Illinois Environmental Protection Agency (IEPA) and OMC, and an order of the Illinois Pollution Control Board granting the motion. The motion for a stay is accompanied by a letter of agreement between IEPA and OMC, outlining the terms of OMC’s new NPDES permit.
We granted the motion to file the certified agency records. While we thus recognize that IEPA and OMC have reached agreement on a new permit, however, we do not find that this requires us to disturb our earlier decision that Illinois may intervene in the federal government’s action. We express no opinion as to how this settlement may affect the ultimate decision of the case on the merits.
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SWYGERT, Senior Circuit Judge,
dissenting in part.
I respectfully dissent from the majority’s holding that, applying the analysis of Milwaukee II, the 1972 amendments to the Federal Water Pollution Control Act preempt federal common-law remedies for pre-1972 pollution. •
In Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (Milwaukee I), the Supreme Court recognized the existence of the federal common law of nuisance as a remedy for interstate water pollution. On August 10, 1978, Illinois filed this action in the district court alleging that Outboard Marine Corporation had been discharging PCBs into Lake Michigan since 1959 in violation of the FWPCA and the common law of nuisance. The complaint sought an injunction against future discharging and a mandatory injunction requiring OMC to remove contaminated sediments.
When the case was first before this court, we held that Illinois did have a cause of action under the federal common law of nuisance. On remand, the majority has concluded that, in light of the Supreme Court’s holding in Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) (Milwaukee II), the FWPCA has preempted common-law remedies even for discharges that occurred prior to the enactment of the 1972 amendments. My own analysis of Milwaukee II and the policies embodied in the FWPCA leads me to the opposite conclusion.
I
I note at the outset that the Supreme Court in Milwaukee II did not consider the issue presented by the instant case: whether the 1972 amendments to the FWPCA pre-empted federal common-law remedies for discharges that occurred prior to 1972. The relief sought by Illinois in Milwaukee II was prospective only, see Milwaukee II, supra, 451 U.S. at 310, 101 S.Ct. at 1788; Illinois v. Milwaukee, 599 F.2d 151, 154 (7th Cir. 1979). The complaint in the case at bar alleges that the defendant has been discharging PCBs since at least 1959, and asks that OMC be ordered to remove the contaminated sediments.
Although Milwaukee II did not deal with the issue of pre-1972 pollution, it does set out the analysis we must apply in determining whether the 1972 amendments to the FWPCA pre-empt the common law of nuisance as to conduct that allegedly occurred prior to 1972. In considering whether Congress had intended the 1972 amendments to pre-empt common-law remedies for water pollution occurring after 1972, the Supreme Court stated that “the question whether a previously available federal common-law action has been displaced by federal statutory law involves an assessment of the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law.” Milwaukee II, supra, 451 U.S. at 315 n.8, 101 S.Ct. at 1791 n.8. The Court found that, in passing the 1972 amendments, Congress had “occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency.” Id. at 317, 101 S.Ct. at 1792. Justice Rehnquist, writing for the majority, emphasized the comprehensive nature of the amendments, id. at 317-19, 101 S.Ct. at 1792-93, and concluded that this comprehensiveness “strongly suggests that there is no room for courts to attempt to improve on that program with federal common law.” Id. at 315, 101 S.Ct. at 1791.
. The statutory scheme of the 1972 amendments is plainly comprehensive as to post-1972 pollution, but cannot be so characterized as to pre-1972 activity. Although, as the majority notes, the amendments do contain some provisions dealing with in-place pollution, see p. 476 supra, these provisions do not represent a “comprehensive regulatory program” for solving the problems of pollution that occurred prior to 1972.
The majority’s response to this argument is that the critical test for pre-emption under Milwaukee II is whether Congress has “addressed the problem” — not whether the remedy that Congress provided is adequate. The majority finds that since Congress enacted “some solution” to the problem of pre-1972 pollution, then it has “addressed the question” and thereby pre-empted the common law. See p. 478 & n.8 supra. This response, however, misses the point. Congress in enacting the 1972 amendments to the FWPCA did not expressly pre-empt federal common-law remedies for nuisance; the issue before us is whether Congress intended to pre-empt the common law. The Supreme Court in Milwaukee II inferred that Congress intended the . pre-emption from the fact that the statutory scheme was comprehensive. That inference does not work as to problems not covered by a comprehensive regulatory program, in this case, pre-1972 pollution.
Given the few legislative provisions in the amendments dealing with pre-1972 pollution, it is reasonable to infer that Congress did not intend those provisions to be the exclusive remedy for in-place pollution. Section 115, which authorizes the EPA to identify and remove in-place pollutants from “critical port and harbor areas,” 33 U.S.C. § 1265, can be viewed as allowing the federal government to take some action to alleviate the problem of existing pollution in “critical” areas while preserving common-law remedies for individuals harmed by pre-1972 pollution.
Further, as the majority noted, see p. 477 supra, the Supreme Court in Milwaukee II found it important that the statute provided a forum in which Illinois could make its claims, while in the case at bar Illinois has no remedy if its claim cannot be considered under the common law of nuisance. The absence of an alternative forum in which an injured party could pursue its claim was “one of the major concerns underlying the recognition of federal common law in [Milwaukee I].” Milwaukee II, supra, 451 U.S. at 325, 101 S.Ct. at 1796.
II
The conclusion that the 1972 amendments to the FWPCA do not pre-empt the federal common law of nuisance as to pollution which occurred prior to the passage of those amendments is further supported by the policies embodied in the statute. The 1972 amendments authorize citizen suits against parties allegedly in violation of the pollution standards set out in the statute, section 505(a), 33 U.S.C. § 1365(a), and provide for enforcement by the EPA through the imposition of civil and criminal penalties, section 309, 33 U.S.C. § 1319. Thus, Congress clearly intended that the parties causing water pollution be held liable for damages. The express policy of Congress in enacting the 1972 amendments, “to restore and maintain the ... integrity of the Nation’s waters,” is severely undercut by the holding of the majority in this case. The decision of this court not only deprives Illinois of any forum in which to redress its grievances but also allows the alleged polluters to escape responsibility for their actions. This certainly could not have been envisioned by the members of Congress as a likely consequence of the enactment of the FWPCA.
Ill
Finally, the opinion in Milwaukee II must be read against the background of a line of precedent holding that common-law rights and remedies are not abrogated by a new statute in the absence of a clear indication that Congress intended the statute to preempt the common law. See Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 298, 96 S.Ct. 1978, 1984, 48 L.Ed.2d 643 (1976) (“a common-law right, even absent a savings clause, is not to be abrogated ‘unless it be found that the preexisting right is so repugnant to the statute that the survival of such right' would in effect deprive the subsequent statute of its efficacy’ ”); Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 412, 89 S.Ct. 1144, 1148, 22 L.Ed.2d 371 (1969) (“the legislative grant of a new right does not ordinarily cut off or preclude other nonstatutory rights in the absence of clear language to that effect”); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 27 S.Ct. 350, 354, 51 L.Ed. 553 (1907). Although the comprehensiveness of the statutory scheme of the 1972 amendments evinces Congress’s intent to pre-empt common-law remedies for pollution created after 1972, there is no similar indication of congressional intent as to pollution caused by activity occurring prior to 1972.
For the foregoing reasons, I would hold that plaintiff’s complaint in the instant case states a cause of action under the federal common law of nuisance as recognized in Milwaukee I.
. The complaint also sought an injunction against future discharges, but Illinois concedes that its nuisance claims as to post-1972 discharges should be dismissed under Milwaukee II.
. The majority relies primarily upon section 115, 33 U.S.C. § 1265, which is quoted in the majority opinion at p. 476, n.5 supra.
. The majority stated that “[w]e would render meaningless the Supreme Court’s emphasis on the comprehensiveness of the 1972 amendments if we took it as a mandate to dissect the FWPCA section by section, with a view to finding that parts of it are not ‘comprehensive.’ ” This conclusion is undercut by the opinion in Milwaukee II, in which the Supreme Court considered the statute’s treatment of the specific claims involved in that case. Milwaukee II, supra, 451 U.S. at 319, 101 S.Ct. at 1793.
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ALLGOOD, District Judge:
This appeal arises from an action to enjoin the United States from preventing the plaintiffs/appellants from completing development above the mean high tide line (hereinafter MHTL) at Buccaneer Point, Key Largo, Florida, without first obtaining a permit from the United States Army Corps of Engineers (“the Corps”). The district court denied the relief prayed for and the plaintiffs appealed.
The property which is involved in this litigation is a 92-acre peninsula in Key Largo, Florida. Development of the property began in 1972. The proposed development was to consist of 200 lots suitable for single family residences. At the time that the development began, the Corps required permits for work below or seaward of the MHTL but did not exercise jurisdiction over nor require permits for work above or landward of the MHTL.
In 1973 the Corps first raised questions concerning the development of Buccaneer Point. At the Corps’ request, the plaintiffs provided surveys which indicated that the sites where they were placing fill were above the MHTL and therefore not subject to the Corps permitting requirements. These surveys were found unacceptable by the Corps which notified the plaintiffs that a tide study would be made and that the Corps would determine the location of the MHTL. Having been advised by the Corps that all work on the property would be “at your own risk,” plaintiffs ceased development from April, 1973 through September, 1973. In September a small amount of work was done and the Corps sent a cease and desist letter with which the plaintiffs complied.
By letter, dated March 25, 1975, the Corps informed the plaintiffs that work could resume without a permit as the property had been determined to be above the MHTL. In September, 1975, plaintiffs were informed by the Corps that under new regulations adopted pursuant to a court order [NDRC v. Callaway, 392 F.Supp. 685 (D.D.C.1975)] a permit would be necessary for further development.
Plaintiffs did not apply for a permit, but brought this action for declaratory and injunctive relief. Plaintiffs asserted that the Corps was estopped by the March 25, 1975 letter from applying the new permitting requirements to them. Plaintiffs also argued that the “grandfather” clause was unreasonably restrictive and therefore a denial of due process, and that the retroactive application of the new regulations was manifestly unjust. The district court entered final judgment against plaintiffs on February 25, 1982 and subsequently denied a motion for rehearing. This appeal followed.
In rendering its decision, the district court noted that “[t]he chronology of governmental activities after its representatives became aware of plaintiffs intentions, leaves something to be desired,” but, nevertheless, rejected the plaintiffs arguments and held for the government. While this court agrees with the district court that this case does not present a fact situation where estoppel against the government should be employed, the court does feel that requiring the plaintiff to obtain a § 404 permit for work above the MHTL would be a retroactive application of the Corps regulations which would result in a “manifest injustice.” See, Bradley v. School Board of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964).
In a situation such as the one presented by the facts in this case, the court should balance the effects of retroactive application against the “mischief of producing a result which is contrary to statutory design or to legal and equitable principles.” McDonald v. Watt, 653 F.2d 1035, 1043 (5th Cir.1981) [citations omitted]. In this case we find the balance favors the plaintiffs.
The plaintiffs were justified in relying upon the March 25, 1975 letter. Members of the public are entitled to assume that public officials will act in accordance with law. Save Our Wetlands v. U.S. Army Corps of Engineers, 549 F.2d 1021 (5th Cir.1974). Throughout the course of their dealings with the Corps, the plaintiffs acted in good faith. It is uncontested that had the plaintiffs not ceased development in 1973 in an attempt to comply fully with the Corps’ regulations, the project would have been completed prior to the change in regulations and the entire project would have been “grandfathered” in. Having delayed for 18 months, plaintiffs obtained new financing and prepared to complete the project on the strength of the assertion in the March 25th letter. Reliance interests should be weighed heavily in the shaping of equitable remedies. Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973).
In balance, the environmental impact of the completion of the Buccaneer Point development must be considered. The record indicates that 80% of the development is complete. The letter of March 25, 1975 lists three requirements with which the plaintiffs’ compliance was required in completing the remaining 20%. The court finds that compliance with these requirements offers satisfactory protection of environmental concerns.
It is therefore the opinion of this court that plaintiffs should not be required to obtain a § 404 permit to complete the development at Buccaneer Point. Such completion will be subject to the three require-merits listed in the Corps’ letter of March 25, 1975.
Accordingly, the decision of the district court is REVERSED.
. Also called the mean high water mark and mean high water line.
. The rule in this circuit has been firmly established: the United States is not subject to an estoppel when it acts in its sovereign capacity. Deltona Corp. v. Alexander, 682 F.2d 888 (11th Cir.1982); Hicks v. Harris, 606 F.2d 65 (5th Cir.1979). Plaintiffs urge that the Corps’ actions amounted to “affirmatively misconduct” which should act to estop the government. The “affirmative misconduct” exception has not, however, been accepted by this circuit. See, Deltona, supra. This court does not find that the facts presented in this case justify adoption of this exception.
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OAKES, Circuit Judge:
In this, another National Environmental Policy Act (NEPA) case, appellants seek reversal of an order of the District Court entered September 13, 1973, denying their application made on September 5, 1973 for a preliminary injunction restraining appellees from “proceeding with any phase of the project for the expansion” of S & S Corrugated Paper Machinery Co., Inc. (“S & S”). The present phase of the project is the clearing of the site, which phase is being carried out by the City of New York pursuant to its power of condemnation and under its own financing. The only federal involvement thus far has been the making of a loan commitment by the United States Economic Development Administration of the Department of Commerce (EDA) to S & S to finance a portion of the construction costs of its expanded plant. The terms of the loan commitment provide for repayment over 20 years at 6J4%. There has been a tentative allocation of funds by EDA, but no funds have been disbursed nor will any be disbursed to the City or for the purpose of demolition. Appellants’ primary prayer for relief is against the City to halt the demolition and clearing of the site, but included within the prayer is a request for a preliminary injunction against EDA also, prohibiting it from disbursing any funds to S & S.
Appellants’ ground for the relief sought is that EDA did not file an environmental impact statement (EIS, under § 102(2) (C) of NEPA, 42 U.S.C. § 4332(2) (C), upon its making the loan commitment in May 1970. This commitment is claimed by appellants to have been a “major Federal action[s] significantly affecting the environment.”
Judge Bartels denied the request for a preliminary injunction as to the City because the City is not the recipient of a federal loan or a direct beneficiary of a “major Federal action.” He denied it as to EDA, because, since it was not until January, 1973 that it became clear as a matter of law that the loan commitment here was a “major Federal action,” EDA cannot on the balance of the equities be held to strict compliance with NEPA requirements and because appellants did not object to the lack of an EIS until September 7, 1973, they were guilty of laches.
The case comes before us at this time on an expedited basis, first because some of appellants have been evicted and their homes demolished, and others are threatened with eviction by the appellee City of New York; second, because if the project site is not cleared by the October 4 deadline for the clearing of the site provided in S & S’s contract with the City, appellee S & S has indicated that it will not continue with its expansion but will indeed leave Brooklyn, with the City losing hundreds of jobs accordingly.
We agree with the district court as to the denial of injunctive relief against the City. To be sure, there is authority for issuance of an injunction in a NEPA context against recipients of federal loans or financial assistance. Silva v. Romney, 473 F.2d 287, 289-290 (1st Cir. 1973) (developer restrained until HUD files EIS on basis that developer and HUD “in partnership” with each, other on housing project). Cf. San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973); Upper Pecos Ass’n v. Stans, 452 F.2d 1233 (10th Cir. 1971) , judgment vacated to consider mootness, Upper Pecos Ass’n v. Peterson, 409 U.S. 1021, 92 S.Ct. 2040, 32 L.Ed.2d 330 (1972). But see Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) (LEAA enjoined from prison grant, but state could proceed with construction plans). Here, however, S & S is the beneficiary of the loan, but not the City.
The appellants argue that the City is indirectly the beneficiary of the loan or at least in a sense in partnership with EDA because the project here was conditioned upon S & S obtaining “satisfactory private or governmental financing.”
The question when a partnership or joint venture exists for the purpose of defining when someone beside the federal government is subject to an injunction under NEPA is a difficult one, as Judge Bartels said and as the First Circuit cases indicate. Compare City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972) with Silva v. Romney, supra. We have found no case, however, which goes as far as suggested here. While not deciding whether a non-recipient of a loan may ever be in partnership with a federal government, upon the facts in this case we find that the nexus between the City and EDA is insufficiently proximate to warrant restraint of the former for lack of statutory compliance by the latter. The fact is that the expansion project could proceed independently of the EDA loan, were other private or governmental financing to be found, and the City’s condemnation and possession of this site does not legally rely on the EDA loan commitment. There is no requirement, even at this date, that S & S take down the loan from EDA and, indeed, we were told in argument that the initial phase of construction will proceed without EDA funds. Therefore, insofar as the injunction prayed for against the City was denied, the order below is affirmed.
As regards the request that the federal defendants be preliminarily enjoined from disbursing funds to S & S, under law that is clear today the approval of the loan application was a “major federal action.” See San Francisco Tomorrow v. Romney, supra, 472 F.2d at 1025. See also the EDA’s own regulations, 13 CFR 309.18 (1973). Thus, there is a showing of probable success on the merits of the question whether or not an EIS is required at least by the time any construction is begun by S & S with the use of EDA funds. Cf. Upper Pecos Ass’n v. Stans, supra, 452 F.2d at 1236. But for purposes of the issuance of a preliminary injunction a showing of irreparable harm to those seeking it is also required. Gulf & Western Industries, Inc. v. Great Atlantic & Pac. Tea Co., Inc., 476 F.2d 687, 692 (2d Cir. 1973). Here there is no such showing, because any irreparable harm occurring to appellants is a result of the City’s eviction. Any harm which may result to the environment of the Northside Community from the disbursal of funds for construction (as opposed to the City-sponsored and financed demolition) will not accrue until after a trial on the merits can in the ordinary course of events be held, since the probable time for such disbursal is 1974. An injunction pendente lite is therefore unnecessary, and while it was denied below on different grounds, the denial is affirmed, without prejudice to renewal in the event funds are disbursed or construction commenced without the filing of an EIS.
Judgment denying preliminary injunction affirmed.
. The land on which appellants reside(d) was taken under an urban renewal project approved on December 4, 1969 by the Board of Estimate, the City acquiring title by condemnation (upheld in the New York courts) and obtaining an order of possession on January 31, 1973.
. On argument Appellants also contended that even if EDA had filed an EIS in connection with the granting of the loan application it would have to file another on disbursement of the funds. This question we leave open as unnecessary for decision on the instant appeal.
. Of 96 affected families/residents, 70 have been paid by the City and removed themselves elsewhere; eight have been evicted and have had their homes demolished; and eighteen are still residing in the area, their eviction being stayed pending this appeal by representations of City Counsel. Those already evicted have been placed in interim housing pending the construction of replacement housing which has been firmly promised by the City. This interim housing has been found adequate and comparable to the demolished housing upon personal inspection by Mr. Justice Ventiera of the New York State Supreme Court in connection with the eviction proceedings.
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HILLMAN, Senior District Judge.
This case involves a challenge under the Commerce Clause to the constitutionality of two Ohio statutes regulating the import of solid wastes generated in other states for disposal in Ohio. Ohio Rev.Code section 3734.57 establishes fees for disposal of solid wastes, charging a higher fee for wastes generated outside Ohio than for wastes generated within the state. Ohio Rev.Code section 3734.131 requires that out-state generators and carriers consent to service before they may import waste into Ohio for disposal in Ohio landfills.
In the lower court, Ohio asserted that it had a compelling justification for its statutes. In support of Section 3734.57, the state argued that the high volume of hazardous substances in out-state waste and the cost of inspecting out-state waste for those substances justified the higher fees. In support of section 3734.131, the state argued that enforcement of laws against environmental crime justified the consent to service requirements. On plaintiffs motion for summary judgment, the United States District Court found both statutes unconstitutional. Without an evidentiary hearing, the District Judge concluded that the statutes discriminated against interstate commerce in violation of the Commerce Clause, and further, that no compelling reason justified the regulations. District Court Op., 763 F.Supp. 244, 262, 264-65 and 267.
On appeal, Ohio argues that the questions of whether inspection costs and prosecution of environmental crime are compelling justifications for the challenged provisions are factual matters precluding dismissal on summary judgment. The State of Ohio also argues that the Supreme Court’s interpretation of the Commerce Clause precludes dismissal of Ohio’s asserted compelling justification without an evidentiary hearing. We agree, and remand the case to the District Court.
I. SUMMARY JUDGMENT STANDARDS
This court reviews a grant of summary judgment de novo, applying the same test as the district court. See Massey v. Exxon Corp., 942 F.2d 340, 342 (6th Cir.1991); EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990).
Summary judgment is appropriate only where the pleadings, discovery materials, and affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on summary judgment, the court should look beyond the pleadings to examine the record as a whole, drawing all justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
In a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issues of material fact remain in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, the party opposing the motion must come forward with specific facts to show a genuine issue for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; Kramer v. Bachan Aerospace Corp., 912 F.2d 151, 153-54 (6th Cir.1990). To sustain this burden, the non-movant cannot rest on the pleadings. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rather, the non-movant must come forward with specific facts or affidavits to support its claims and show the existence of a genuine, material issue in dispute. Id.
Here, Ohio argues that the District Court erred in granting summary judgment because a material issue of fact existed regarding Ohio’s justification for the higher fees on waste imported from other states. The materiality of an issue of fact is evaluated based on the relevant substantive law, in this case the Commerce Clause jurisprudence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To resolve the summary judgment question, we must look first to the substantive law of the Commerce Clause to determine what facts are material. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989).
II. THE COMMERCE CLAUSE
Article I, Section 8 of the Constitution provides that “The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes.” U.S. Const, Art. I, § 8. Commerce Clause jurisprudence as it relates to domestic commerce has focussed on maintaining an economic union in which states do not discriminate against commerce from other states in favor of their own citizens. See e.g. Wyoming v. Oklahoma, — U.S. -, -, 112 S.Ct. 789, 799-801, 117 L.Ed.2d 1 (1992). At the same time, the Clause has been interpreted to allow states to regulate commerce to protect legitimate local interests when no less discriminatory alternative is available. See e.g. H.P. Hood and Sons, Inc. v. Du Mond, 336 U.S. 525, 535, 69 S.Ct. 657, 663, 93 L.Ed. 865 (1949) (“This court consistently has rebuffed attempts of states to advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state, while generally supporting their right to impose even burdensome regulations in the interest of local health and safety.”); Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).
Supreme Court decisions concerning provisions similar to the Ohio statutes suggest that a state’s justification for restricting the import of garbage is a material issue of fact under the Commerce Clause. The Supreme Court has specifically held that disposal of solid waste is a matter which comes under the scrutiny of the Commerce Clause. In Philadelphia v. New Jersey, 437 U.S. 617, 622, 98 S.Ct. 2531, 2534, 57 L.Ed.2d 475 (1978), the Court overturned a New Jersey law that prohibited import of solid or liquid waste which originated or was collected outside of New Jersey. The Court held that New Jersey’s ban on the import of that garbage violated the Commerce Clause. Id.
The case at hand, however, is not controlled by the holding of Philadelphia. In Philadelphia, the state conceded that the harms from in-state and out-state waste would be the same. Id. at 629, 98 S.Ct. at 2538. In the case before this court, Ohio argues that garbage generated outside of Ohio causes a greater risk of harm than garbage generated within the state. That greater risk of harm arises, Ohio contends, because out-state waste is more likely to contain hazardous waste. As a result, higher fees for disposal of out-state waste are justified in order to reimburse Ohio’s larger inspection, enforcement, and cleanup costs caused by out-state waste. Similarly, Ohio argues consent to service is justified to effectively prosecute out-state shippers and generators of hazardous waste. Ohio’s position is supported with affidavits. See discussion, part III, infra.
The Supreme Court recently found similar justifications to be compelling in a case where a Maine statute regulated incoming commerce to preserve and protect the state’s natural resources. In Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 2447, 91 L.Ed.2d 110 (1986), the Court held that a Maine law forbidding importation of live baitfish did not violate the Commerce Clause because Maine had established sufficient compelling local reasons to ban importation of the fish. The Court applied the analysis of Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979) and Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 353, 97 S.Ct. 2434, 2446, 53 L.Ed.2d 383 (1977), requiring that:
[wjhen discrimination against commerce ... is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of non-discriminatory alternatives adequate to preserve the local interests at stake.
Id. After an evidentiary hearing, the District Court in Taylor ruled that Maine had justified its statute under this standard because the contaminated baitfish posed a drastic threat to Maine’s ecology and because no less intrusive means existed for protecting the ecology short of an absolute ban. Thus, a state’s justification for regulating the influx of potentially hazardous waste and preserving its natural resources is a material issue of fact under the Commerce Clause.
III. APPLICATION TO THE OHIO STATUTES
In the present case, the District Court should have applied the analysis of Maine v. Taylor and made a factual determination whether the state had proved a compelling justification for its statutes. Its grant of summary judgment for plaintiffs without such a finding constitutes error.
The District Court in analyzing Maine v. Taylor acknowledged that a situation could arise “when [a] statute discriminates against interstate commerce but for a compelling reason.” District Court Opinion, at 260. The District Judge stated further that in such situations, “it is appropriate to engage in a balancing of interests.” Id. We conclude that this is just such a case. The District Court, however, failed to hold an evidentiary hearing to balance these interests. Instead, as a matter of law, it struck down the Ohio statutes. The District Judge reasoned that Ohio’s justification for the statutes was irrelevant because the statutes discriminated on their face against waste imported from other states. Such a conclusion ignores the analysis of Maine v. Taylor. We find that Ohio’s showing in this case merits an evidentiary hearing at which Ohio would have an opportunity to demonstrate a compelling local reason for its statutes and to show that no less restrictive means are available to achieve the same ends.
On the record before us, Ohio has demonstrated the existence of a material issue of disputed fact which precludes summary judgment. See, e.g., Affidavits of Duane Alan Snyder, Eichard Sahli, David C. Stray-er and William J. Strauch. Those affidavits allege that:
* solid wastes generated outside Ohio but disposed of within the state at times contain hazardous waste which is improperly stored or identified. Improper classification of hazardous waste generally occurs at the point where the waste was generated. See, e.g., Strauch Affidavit, at 8.
* out-state waste generators and carriers, in contrast to their in-state counterparts, cannot be inspected by Ohio authorities to insure proper classification of solid and hazardous waste. See Snyder affidavit.
* Ohio is unable to recoup its costs for cleanup of hazardous waste generated out-state but disposed of in Ohio landfills. See Strayer and Sahli affidavits.
* non-Ohioans who generate and transport hazardous waste into the state escape criminal prosecution for contaminating the Ohio environment because Ohio is unable to obtain jurisdiction over them. See Strauch Affidavit at 5-10.
The facts alleged in these affidavits, viewed in the light most favorable to Ohio as the non-moving party, create a material issue of disputed fact.
In response, plaintiff presents no affidavits or specific facts whatsoever to counter Ohio’s argument that these financial and environmental problems justify the provisions of the challenged Ohio statutes. Granting the movant summary judgment on its claim while these relevant factual issues remain in dispute constituted error. It is questionable whether plaintiff met its initial burden of demonstrating the absence of material fact under Celotex, supra. Even assuming, arguendo, that plaintiff did meet that burden, summary judgment should have been denied because plaintiff failed to rebut or refute the state’s affidavits. Those affidavits demonstrate that the environmental and financial problems which Ohio seeks to address by its statutes are at least partially attributable to the influx of hazardous waste from outside the state. The District Court’s grant of summary judgment impermissibly denied Ohio the opportunity to prove that a compelling justification exists for its statutes. Consequently, the District Court’s order of summary judgment was in error and we remand the case for further proceedings.
IV. PROCEEDINGS ON REMAND
On remand, Ohio’s statutes will remain subject to strict scrutiny. At the evidentia-ry hearing, the burden of proof will be on Ohio to demonstrate that its statutes serve a legitimate local purpose and that this purpose could not be served by other nondiscriminatory means. Ohio’s “proffered justification for any local discrimination against interstate commerce must be subjected to the strictest scrutiny, [but] the empirical component of that scrutiny, like any other form of factfinding, is the basic responsibility of district courts, rather than appellate courts.” Taylor, 477 U.S. at 144-45, 106 S.Ct. at 2450 (citations omitted).
For these reasons, we REVERSE the District Court order granting summary judgment and REMAND the case to that court for further proceedings consistent with this opinion.
. The statute actually creates a three-tiered scheme of fees for waste disposal. Wastes generated within the same solid waste management district where they are disposed of are assessed a fee. Wastes generated within Ohio but outside the district are assessed a higher fee. Wastes generated outside the state of Ohio are assessed the highest fee.
. Among the other alternatives the District Court should consider is the fee structure approved by this court in Bill Kettlewell Excavating Inc. v. Michigan Dept. of Natural Resources, 931 F.2d 413 (6th Cir.1991), cert. granted sub nom. Fort Gratiot Landfill, Inc. v. Michigan Dept. of Natural Resources, — U.S. -, 112 S.Ct. 857, 116 L.Ed.2d 765 (1992). In that case, we upheld a Michigan statute allowing counties to refuse imports of solid waste generated outside the county regardless of whether that waste came from within or outside the relevant state.
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GARWOOD, Circuit Judge:
Petitioner challenges the conditions of a National Pollution Discharge Elimination System (NPDES) permit and the Environmental Protection Agency’s (EPA) authority to impose those conditions on an outfall at petitioner’s steam generating plant. We determine that this Court lacks jurisdiction over the application for review because petitioner did not file its application for review within the statutorily prescribed ninety-day period, and accordingly we dismiss the application.
Facts
Petitioner Texas Municipal Power Agency (TMPA) provides electricity to cities in Texas from its lignite-fired steam generating plant adjacent to the Gibbons Creek Reservoir in Grimes County, Texas. In accordance with the Clean Water Act, TMPA applied for and received NPDES permits authorizing discharges from seven wastewater outfalls at its plant. One of these outfalls, 301, measures the flow of treated wastewater from the 20,000-gallon-a-day wastewater treatment facility constructed to serve the domestic sewage needs of the three hundred employees at the plant. Outfall 301 measures the flow of the treated wastewater from the waste-water treatment facility into the first of three interconnected ash ponds. These ash ponds also receive bottom ash-laden waters from the generating plant. The ash ponds serve primarily as sedementation basins for the bottom ash-laden waters and, according to TMPA, also serve as the last phase of the treatment process for the sanitary wastewater effluent discharged from the treatment facility. Two pollutants are regulated by the EPA through Outfall 301. These are biological oxygen demand and total suspended solids. Once circulated through the ash ponds, some of the water is recirculated through the plant to capture more bottom ash and some is discharged into the Gibbons Creek Reservoir through Outfalls 101 and 501. Outfalls 101 and 501 are regulated by the same NPDES permit.
EPA issued TMPA’s original NPDES permit on December 13,1978, effective January 16, 1979. The original permit expired January 15, 1984. EPA reissued the permit with certain modifications on March 9, 1984, effective April 4, 1984, and expiring April 9, 1989. At the time TMPA requested renewal of the NPDES permit, it made no request for any changes regarding Outfall 301. On October 27, 1984, TMPA requested a modification of the existing NPDES permit seeking to increase the allowable discharge at Outfall 401; however, TMPA did not mention Outfall 301. On November 15, 1984, EPA filed an enforcement action against TMPA in the Southern District of Texas seeking civil penalties and injunctive relief for alleged violations of effluent limitations at Outfall 301 occurring between November 1982 and July 1984. After the instigation of this enforcement action, TMPA replaced the old 6,000-gallon wastewater treatment facility with the current 20,000-gallon facility. On May 2, 1985, effective May 3, 1985, EPA agreed to the modification at Outfall 401 and of its own accord modified the conditions at Outfall 201. The EPA did not in any way modify TMPA’s obligation at Outfall 301. On July 30, 1985, TMPA filed this application for review of the EPA Administrator’s actions in setting the permit requirements for Outfall 301.
Discussion
Section 509(b)(1) of the Clean Water Act states:
“Review of the Administrator’s action ... in issuing or denying any permit under section 1342 of this title [NPDES], may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day.” 33 U.S.C. § 1369(b)(1) (emphasis added).
Statutory time limits on petitions for review of agency actions are jurisdictional in nature such that if the challenge is brought after the statutory time limit, we are powerless to review the agency's action. Natural Resources Defense Council, Inc. (NRDC) v. EPA, 673 F.2d 400, 406 (D.C.Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 175, 79 L.Ed.2d 143 (1982); Homestake Mining Co. v. EPA, 584 F.2d 862 (8th Cir.1978); see also Texas v. United States Interstate Commerce Commission, 749 F.2d 1144, 1146 (5th Cir.) (enforcing similar sixty-day review provision for Interstate Commerce Commission rulings), cert. denied, — U.S. -, 105 S.Ct. 3513, 87 L.Ed.2d 642 (1985); Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, 911 (D.C.Cir.1985) (construing ninety-day review provision of the Comprehensive Environmental Response, Compensation, and Liability Act); City of Seabrook, Texas v. EPA, 659 F.2d 1349, 1370 (5th Cir.1981) (strictly enforcing similar sixty-day judicial review provision in Clean Air Act), cert. denied, 459 U.S. 822, 103 S.Ct. 51, 74 L.Ed.2d 57 (1982). These time limitations impart finality to the administrative process, thus conserving administrative resources. EaglePicher, supra, at 911; NRDC v. Nuclear Regulatory Commission, 666 F.2d 595, 602 (D.C.Cir.1981). The requirements show a congressional decision to impose statutory finality on agency actions that we, as a court, may not second-guess. Eagle-Picher, supra, at 911; City of Rochester v. Bond, 603 F.2d 927, 935 (D.C.Cir.1979). The statutory time limitations have been strictly enforced. For example, in Homestake Mining, supra, the court dismissed an application for review of an NPDES permit modification for lack of jurisdiction when the court clerk received the application for review four days after the statutory limitation period had expired. In NRDC v. EPA, supra, at 406, the court dismissed an untimely application for review under section 509(b)(2) of the Clean Water Act, stating that anyone who wished to challenge such an action must do so within the ninety-day period prescribed by section 509(b)(1) or “lose forever the right to do so, even though that action might eventually result in the imposition of severe civil or criminal penalties.”
TMPA received its permit regulating Outfall 301 on April 10, 1984, and TMPA filed its application for review July 30, 1985, over a year after the ninety-day statutory period for filing an application for review. Therefore, we lack jurisdiction to review the claim. TMPA argues that the application was timely filed because the ninety-day limitation period should run not from the reissuance of the permit in 1984, but from the issuance of the modified permit on May 3, 1985. If we accept TMPA’s argument that the date should run from May 3, 1985, then the application for review is timely filed. We are not persuaded, however, by TMPA’s argument that the time period should run from the issuance of the modified permit on May 3, 1985.
TMPA’s requested modification covered only Outfall 401. EPA, on its own initiative, also modified the permitting requirements for Outfall 201. Neither TMPA nor EPA requested or took any action regarding Outfall 301 in those proceedings. EPA’s regulations clearly establish that a modification of a permit reopens the proceeding only with respect to the specific provisions modified. The regulations state: “In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit.” 40 C.F.R. § 124.5(c)(2). The Ninth Circuit, in determining whether the extension of a permit was the same as the issuance of one for purposes of judicial review, stated that the modification of an existing permit affects only the meaning and the scope of those provisions modified and, unlike an extension, does not affect all provisions of the permit by prolonging their lives. Pacific Legal Foundation v. Costle, 586 F.2d 650, 655 (9th Cir.1978), rev’d on other grounds, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980). In this case, there was no revocation or reissuance of the TMPA permit and the modified permit issued in 1985 did not affect the conditions for Outfall 301 (nor was there any request in those proceedings that it do so). There is nothing to indicate that any part of the permitting conditions for Outfall 301 should be considered as part of the modified permit. All the conditions applicable to Outfall 301 were contained in the NPDES permit issued March 9, 1984. Therefore, under section 509(b)(1) of the Clean Water Act, TMPA was required to file any application for review not later than June 5, 1984. TMPA did not file its application for review until more than a year after the statutory limitation period. Accordingly, this Court must dismiss the application for review because we lack jurisdiction. Because we must dismiss for lack of jurisdiction, we do not address TMPA’s substantive challenges to the permit nor EPA’s claim that TMPA has not exhausted its administrative remedies.
Conclusion
TMPA's attempt to bring Outfall 301 within the scope of the 1985 modified permit is contrary to EPA regulations and must fail. Since TMPA did not file its application for review within the ninety-day time period prescribed by section 509(b)(1) of the Clean Water Act, we lack jurisdiction over the application for review and accordingly dismiss.
DISMISSED.
. TMPA may be prohibited from challenging the EPA’s jurisdiction to regulate Outfall 301 in the enforcement proceeding by section 509(b)(2) of the Clean Water Act, since section 509(b)(2) prohibits judicial review in any civil or criminal enforcement proceeding of any EPA action which could have been reviewed by the court of appeals as provided for in section 509(b)(1). However, we do not decide that question, as our jurisdiction has not been timely invoked.
. The District of Columbia Circuit Court recognizes a limited number of exceptional circumstances in which it may consider a challenge to the Agency’s actions that is brought after the statutory time limit. These exceptions are when the petitioner lacked a meaningful opportunity to challenge the Agency’s action during the review period due to inadequate warning that the petitioner would be affected by the action, confusion in the law as to the proper forum for review, and lack of ripeness during the review period. Eagle-Picher, Inc., 759 F.2d at 911-12. We need not address whether we would adopt these exceptions because TMPA’s situation does not fall within any of them.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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BRISCOE, Circuit Judge.
These appeals were filed following district court approval of a settlement agreement. The Settlement Agreement sought to end a longstanding, complex dispute dating from 2008. In 2008, environmental groups led by the Southern Utah Wilderness Alliance (collectively, "SUWA") challenged six resource management plans ("RMPs") and associated travel management plans ("TMPs") adopted by the United States Bureau of Land Management ("BLM"). See App. 00032-76. Six other parties intervened as respondents in the district court, including the State of Utah and several counties in Utah (collectively, "Utah"). When BLM, SUWA, and multiple intervenors entered into a settlement and sought to dismiss the case in January 2017, Utah challenged the settlement. Utah contends, among other arguments, that the Settlement Agreement illegally codified interpretative BLM guidance into substantive rules, impermissibly binds the BLM to a past Administration's policies, infringes valid federal land rights (known as "R.S. 2477 rights"), and violates a prior BLM settlement. The district court disagreed, and approved the Settlement Agreement. App. 01477-78.
Utah advances the same arguments on appeal and asks this court to reverse the district court because the Settlement Agreement is unlawful and against the public interest. SUWA asserts that this court lacks subject matter jurisdiction over Utah's claims. We agree with SUWA, and dismiss for lack of subject matter jurisdiction.
I
Central to this dispute is whether the BLM can simultaneously comply with all of the following: the Settlement Agreement; the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701 - 1787 ; a prior BLM settlement (the "Wilderness Settlement"); currently pending litigation (the "Wildlands Litigation"); and the Administrative Procedure Act ("APA"). Utah contends that BLM cannot, and therefore the Settlement Agreement is unlawful and against public policy.
We look first to the Settlement Agreement. See App. 01095-129. Section A lays out the general provisions of the Settlement Agreement. Within Section A, Paragraph 12 states that "[a]ny subsequent modifications, supplements, or amendments to this Settlement Agreement must be in writing, and must be signed and executed by or on behalf of the affected parties, or their successors in interest, as necessary." Id. at 01100. Section B details more specific requirements on the action that the BLM will take under the Settlement Agreement. Paragraph 13 provides for deadlines by which BLM will issue five new TMPs for five specific travel management areas. Id. at 01100-01. Paragraph 15 details the process by which BLM will prepare the TMPs. In its entirety, Paragraph 15 reads as follows:
Applicable law and agency guidance. BLM will prepare the new TMPs for each of the TMAs identified in paragraph 13 pursuant to applicable statutes, regulations, BLM-Utah Instruction Memorandum No. 2012-066 ("BLM-Utah IM 2012-066"), and the terms identified in paragraphs 16-24 of the Settlement Agreement. In addition to BLM-Utah IM 2012-066, relevant existing guidance includes, but is not limited to: BLM-Utah Guidance for the Lands with Wilderness Characteristics Resource, Instruction Memorandum No. UT 2016-027 (September 30, 2016); BLM National Environmental Policy Act Handbook H-1790-1 (January 2008); BLM-Utah Handbook 8110, Guidelines for Identifying Cultural Resources (2002); BLM Handbook H-8342, Travel and Transportation (March 16, 2012); BLM Manual 1613, Areas of Critical Environmental Concern (September 29, 1988); BLM Manual 1626, Travel and Transportation (July 14, 2011); BLM Manual 6320, Considering Lands with Wilderness Characteristics in BLM Land Use Planning (March 15, 2012); BLM Manual 6330, Management of BLM Wilderness Study Areas (July 13, 2012), 6340, Management of BLM Wilderness (July 13, 2012); and BLM Manual 8110, Identifying and Evaluating Cultural Resources on Public Lands (December 3, 2004). Nothing in the Settlement Agreement makes binding the aforementioned guidance. Nothing in this Settlement Agreement shall be construed as limiting BLM's discretion to promulgate new manuals, handbooks, or instruction memoranda consistent with relevant law and regulations. The parties may agree to modify the Settlement Agreement to reflect updated regulations or guidance, consistent with paragraph 12.
App. 01101-1102. Utah contends that Paragraph 15 elevates certain agency guidance to the level of substantive rules in violation of the APA, and also provides SUWA with veto power over future BLM guidance and substantive rulemaking that could apply to the five specific travel management areas listed in Paragraph 13.
Utah also contends that the BLM cannot comply with both the Settlement Agreement in this case and a prior settlement agreement reached in a previous litigation, the aforementioned Wilderness Settlement. The Wilderness Settlement resulted from different land-use litigation between several of the same parties to this litigation that concerned wilderness study areas ("WSAs") in Utah. See Utah v. Norton , 2:96-CV-0870, 2006 WL 2711798 (D. Utah Sept. 20, 2006), aff'd sub nom. Utah v. U.S. Dep't of Interior , 535 F.3d 1184 (10th Cir. 2008). In the Wilderness Settlement, the BLM conceded that its authority to establish new wilderness study areas expired no later than October 21, 1993. App. 01426. The BLM further stipulated in the Wilderness Settlement that it would not utilize its general land use planning authority under FLPMA § 202 to establish, manage, or otherwise treat non-WSA public lands as wilderness or as WSAs. Id. at 01427.
Utah asserts that the Settlement Agreement permits the BLM to use its land use planning authority to circumvent the Wilderness Settlement. Utah points to Paragraph 17 to support its theory. For example, Paragraph 17.e states:
Travel network minimization alternatives. BLM will explain in the NEPA document for each TMP how each proposed alternative route network will "minimize damage" to "resources of the public lands," 43 C.F.R. § 8342.1(a), including identified cultural resources and public lands with BLM-inventoried wilderness characteristics. For purposes of minimizing damage to public lands with BLM-inventoried wilderness characteristics, BLM will consider the potential damage to any constituent element of wilderness characteristics, including naturalness, outstanding opportunities for solitude, and outstanding opportunities for primitive and unconfined recreation, for each alternative route network. BLM will consider in the NEPA document at least one proposed alternative route network that would not designate for ORV use any route where BLM has determined that such use may "damage," 43 C.F.R. § 8342.1(a), BLM-inventoried wilderness characteristics; however, BLM need not consider closing such a route to ORV use to the extent the use is authorized by an existing right-of-way or other BLM authorization or by law, including State of Utah v. Andrus , 486 F.Supp. 995 (D. Utah 1979), which will be documented in the final route report.
App. 01106. Utah also contends that Paragraph 17.e disregards its R.S. 2477 rights, as does Paragraph 17.f. Paragraph 17.f, in full, states:
Alternative route networks within WSAs and Natural Areas. For routes or portions thereof that are located on public land within wilderness study areas ("WSAs") and Natural Areas, BLM will analyze in the NEPA document at least one alternative route network that would enhance BLM-inventoried wilderness characteristics by designating the routes or the relevant portions thereof as closed to ORV use, unless ORV use of the route is authorized by an existing right-of-way or other BLM authorization or by law. To the extent ORV use of a route is authorized, this alternative route network will include measures limiting ORV use to enhance BLM-inventoried wilderness characteristics to the greatest extent possible consistent with applicable laws, regulations, or existing right-of-way authorizations.
App. 01106.
II
We begin our analysis by addressing whether we have jurisdiction over this dispute. SUWA and BLM assert this court lacks subject matter jurisdiction because Utah has not established Article III standing and its claims are not ripe for judicial review. We need only focus on ripeness to resolve the jurisdictional question. See Utah , 535 F.3d at 1191.
"[T]he ripeness doctrine has two underlying rationales: preventing courts from becoming entwined in 'abstract disagreements over administrative policies,' and 'protect[ing] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.' " Id. at 1191-92 (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ). Under this analysis, we consider three factors:
1) whether delayed review would cause hardship to the plaintiffs; 2) whether judicial intervention would inappropriately interfere with further administrative action; and 3) whether the courts would benefit from further factual development of the issues presented.
Sierra Club v. U.S. Dep't of Energy , 287 F.3d 1256, 1262-63 (10th Cir. 2002) (citing Ohio Forestry Ass'n, Inc. v. Sierra Club , 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) ). A common thread running through all three factors points to our concluding that Utah's appeal is unripe: at this point, no one knows how BLM will implement the Settlement Agreement.
Many of Utah's concerns are anticipatory, or are not within the purview of the Settlement Agreement. For example, there are no final travel management plans. Additionally, BLM has not rescinded any of the guidance referenced in the Settlement Agreement, and therefore SUWA has not had the opportunity to exercise its alleged veto power provided by the Settlement Agreement. Further, the Settlement Agreement has no effect on R.S. 2477 rights, App. 1107, and nothing in the Settlement Agreement requires BLM to protect wilderness characteristics when developing a TMP. Instead, the Settlement Agreement lays out criteria for BLM to consider as it develops TMPs in a complex regulatory scheme. BLM may ultimately develop a TMP that creates de facto wilderness, or may impermissibly consider guidance that has been rescinded or ignore future substantive rules. But BLM might not. The Settlement Agreement neither requires BLM to create de facto wilderness, nor mandates that BLM reject future agency action taken by the present Administration. Accordingly, this court can more confidently address the substantive legal arguments raised by Utah when BLM finalizes the TMPs subject to the Settlement Agreement and ultimately reveals the Settlement Agreement's "true effect[.]" Utah , 535 F.3d at 1195.
As we have stated previously when examining a challenge to a prior settlement agreement involving BLM, SUWA, and Utah:
It is true that we could study the language of the settlement and hazard a guess as to which of the parties has the better view of the settlement's eventual impact. But the settlement is manifestly vague regarding how BLM can or should make specific land management decisions, and the ripeness doctrine exists precisely for the purpose of preventing unnecessary adjudication under such circumstances. We could therefore resolve the issues in this case more confidently with the benefit of insight into how BLM actually implements the settlement in practice.
Id. We agree that this approach and guidance apply equally here.
III
The appeals are DISMISSED as unripe for adjudication.
In separate on-going litigation known as the Wildlands Litigation, Utah is currently advancing several claims that the BLM is impermissibly managing non-WSA lands as wilderness in defiance of the Wilderness Settlement. See State of Utah v. Zinke , 2:10-cv-0970-DB-BCW (D. Utah).
Utah's complaints regarding R.S. 2477 rights appear to stem largely from the unique nature of these rights rather than from the Settlement Agreement itself. See S. Utah Wilderness All. v. Bureau of Land Mgmt. , 425 F.3d 735, 740-42 (10th Cir. 2005) (explaining the interplay between R.S. 2477 and FLPMA).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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McKEOWN, Circuit Judge:
The Hanford Nuclear Reservation (“Hanford”) in Washington is one of the largest sites in the country for the treatment, storage and disposal of radioactive and non-radioactive hazardous waste, currently storing over 53 million gallons of mixed radioactive and nonradioactive hazardous waste. During World War II, the United States government constructed Hanford to manufacture plutonium for military purposes. In re Hanford Nuclear Reservation Litig., 521 F.Sd 1028, 1039-40 (9th Cir.2008) (as amended). Over the decades, the United States Department of Energy (“DOE”) has disposed of approximately 450 billion gallons of contaminated water and liquid mixed waste on the site. At least one million gallons of high-level mixed radioactive and non-radioactive hazardous waste have leaked into the environment and approximately 170 miles of groundwater beneath Hanford are contaminated. In addition, tens of millions of gallons of waste are stored at Hanford in tanks that were constructed in the 1940s and meant to last only twenty years. As of 2004, there was a backlog of over 22,000 cubic meters of low-level mixed waste and transuranic mixed waste awaiting treatment and disposal.
In 1989, Washington’s Department of Ecology (“Ecology”), the DOE, and the United States Environmental Protection Agency (“EPA”) entered into the Hanford Federal Facility Agreement and Consent Order, also known as the Tri-Party Agreement, to bring Hanford into compliance with federal and state environmental laws. However, according to Ecology, since signing the agreement, the DOE and its contractors have been cited numerous times for violations of federal and state hazardous and mixed waste laws and requirements.
The present appeal arises out of an effort by Washington voters “to prevent the addition of new radioactive and hazardous waste to the Hanford nuclear reservation until the cleanup of existing contamination is complete.” United States v. Hoffman, 154 Wash.2d 730, 116 P.3d 999, 1001 (2005). Although the desire to take action against further environmental contamination and to protect the health and welfare of the community is understandable, we conclude that the statute enacted through the passage of Initiative 297 (“1-297”), the Cleanup Priority Act (“CPA”), is preempted by federal law. This result is dictated by a plain reading of the Washington statute, as interpreted by the Washington Supreme Court, as well as longstanding principles of federal preemption.
I. Background
A. Glossary
The field of environmental law has spawned multiple acronyms. Many of these acronyms are well recognized, like EPA, while others, like HWMA, are not. For ease of reference, we offer the following glossary of terms:
AEA Atomic Energy Act 42 U.S.C. §§ 2011-of1954 2259
CERCLA Comprehensive 42 U.S.C. §§ 9601-Environmental 9675 Response, Compensation, and Liability Act of 1980
CPA Cleanup Priority Act RCW Chapter 70.105E
DOE United States Department of Energy
EPA United States Environmental Protection Agency
Ecology Washington State Department of Ecology
FFCA Federal Facility Compliance Act of 1992 Pub. L. No. 102-386, 106 Stat. 1505 (codified in scattered sections of 42 U.S.C.)
HWMA Hazardous Waste Management Act RCW Chapter 70.105
MTCA Model Toxics Control Act RCW Chapter 70.105D
RCRA Resource Conservation and Recovery Act of 1976 42 U.S.C. §§ 6901-6992k
B. Statutory Framework for Hazardous Waste Management
Hazardous waste is regulated at both the federal and state levels. The Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992k, enacted in 1976 in response to the environmental and public health risks associated with the mismanagement of hazardous waste, created a permit scheme for the treatment, disposal, or storage of hazardous waste. See id. § 6925(a); United States v. Kentucky, 252 F.3d 816, 822 (6th Cir.2001). Under the RCRA, states may apply to the EPA for authorization to administer a hazardous waste program in lieu of the federal program. 42 U.S.C. § 6926(b). Washington is authorized to administer its own program, and does so through the Hazardous Waste Management Act (“HWMA”), RCW 70.105.
Despite federal cleanup efforts, hazardous waste contamination continued to be a problem. Ecology claims that federal facilities, including Hanford, were among the worst offenders. In 1992, Congress enacted the Federal Facilities Compliance Act (“FFCA”) to make it “as clear as humanly possible” that Congress was waiving federal sovereign immunity and making federal facilities subject to state laws. 138 Cong. Rec. H9135-02 (daily ed. Sept. 23, 1992) (statement of Rep. Dingell); see 42 U.S.C. § 6961. This act also added a provision to the RCRA that requires the DOE to submit its treatment plans for mixed waste to the states for approval, modification, or disapproval. 42 U.S.C. § 6939c.
Disposal of nuclear and radioactive materials falls, however, into a special category and is separately regulated by the federal government. Thus, “solid waste” regulated by the RCRA does not include “source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954.” 42 U.S.C. § 6903(27). “The [Atomic Energy Act, (“AEA”), 42 U.S.C. §§ 2011 2259] enacted in 1954, established a comprehensive regulatory scheme for military and domestic nuclear energy.” Natural Res. Def. Council v. Abraham, 388 F.3d 701, 704 (9th Cir.2004). Amendments to the AEA in 1959 gave states some regulatory authority, but the Atomic Energy Commission, now the Nuclear Regulatory Commission, “retain[ed] exclusive regulatory authority over ‘the disposal of such ... byproduct, source, or special nuclear material as the Commission determines ... should, because of the hazards or potential hazards thereof, not be disposed of without a license from the Commission.’ ” Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 250, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984) (quoting 42 U.S.C. § 2021(c)(4)).
Radioactive waste that is subject to regulation under the AEA frequently may be mixed with non-radioactive waste that is regulated by the RCRA. No separate federal statute regulates this “mixed waste.” See Kentucky, 252 F.3d at 822. However, the DOE and the EPA have issued rules stating that mixed waste will be subject to dual regulation: the AEA will govern the radioactive component and the RCRA or comparable state legislation will govern the non-radioactive component. See, e.g., 51 Fed.Reg. 24,504 (July 7, 1986); 52 Fed.Reg. 15,937 (May 1, 1987); 53 Fed.Reg. 37,045 (Sept. 23, 1988). This dual regulatory structure is the source of the conflict engendered by the CPA.
C. The Cleanup Priority Act
The ballot description of 1-297 declared that “[t]his measure would add new provisions concerning ‘mixed’ radioactive and nonradioactive hazardous waste, requiring cleanup of contamination before additional waste is added, prioritizing cleanup, [and] providing for public participation and enforcement through citizen lawsuits.” Thus, the CPA “became part of a complex state and federal system for regulating materials that are variously described as hazardous, dangerous, radioactive, or having some combination of these attributes.” Hoffman, 116 P.3d at 1001. Counsel explained at oral argument that the CPA, passed by Washington voters in November 2004, was meant to eliminate Ecology’s discretion in issuing permits under the RCRA and the HWMA and in taking action regarding investigation and cleanup.
Toward those ends, § 4 of 1-297 provides that a final facility permit cannot issue until all units of a facility are in compliance with federal and state cleanup laws. Significantly, a facility cannot import mixed waste until it obtains a final facility permit. Section 5 requires that Ecology take remedial and corrective action against releases of radionuclides into the environment. Section 6 contains mandates to Ecology regarding the investigation and cleanup of hazardous substances that have been disposed of in unlined trenches, and the closure of mixed waste tank systems. Section 7 requires Ecology to obtain from mixed waste facility owners the projected costs of remedial and corrective actions. Section 8 grants exemptions from the CPA’s requirements for certain naval waste, in accordance with the State’s obligations under the Northwest Interstate Compact. Section 9 requires facilities where there has been a release of mixed waste to provide for and fund a broadly representative advisory board, and directs Ecology to make available public participation grants that will be funded by a mixed waste surcharge assessed against permit applicants and permit holders. Finally, under § 10, the CPA is enforceable through citizen suits.
The United States sought and obtained a temporary restraining order in federal district court against the enforcement of the CPA the day before its effective date, December 2, 2004. Various sponsors of 1-297 intervened as defendants (“Sponsors”). The United States argued that the CPA was invalid in its entirety because it violated the Supremacy Clause and the Commerce Clause of the United States Constitution, and the sovereign immunity of the United States. Fluor Hanford (“Fluor”), a private contractor operating at Hanford, intervened as a plaintiff. The Tri-City Industrial Development Council (“TRIDEC”), a not-for-profit corporation that represents local businesses and public entities in the area around Hanford, also intervened as a plaintiff and asserted that the CPA violated the Contract Clause.
D. Questions Certified to the Washington State Supreme Court
The United States and Fluor moved for summary judgment and TRIDEC moved for partial summary judgment. In opposing the United States’ motion, the State argued that many of the claims could be narrowed or eliminated through statutory interpretation. See Hoffman, 116 P.3d at 1001. The parties agreed that if the CPA covered only material that could be regulated under state law or the RCRA, then the statute was not preempted by federal law. The district court granted the State’s motion to certify five questions to the Washington Supreme Court, including the following question and its subparts that are directly relevant to this appeal:
(1) What materials are encompassed within the definition of “mixed waste” set forth in Section 3(9) of the CPA [RCW 70.105E.030(9) ]?
(a) Specifically, does the definition of “mixed waste” encompass materials that consist solely of radioactive source, special nuclear, or byproduct materials and, if so, under what circumstances does the CPA apply to such materials?
(b) Specifically, does the definition of “mixed waste” encompass materials that are mixtures of radioactive source, special nuclear, or byproduct materials and other hazardous substances that do no[t] designate as “dangerous waste” under state laws? If so, under what circumstances does the CPA apply to such materials?
(c) Specifically, does the definition of “mixed waste” encompass materials that are not “solid wastes” under the Resource Conservation and Recovery Act (RCRA) and, if so, under what circumstances does the CPA apply to such materials?
(d) In light of the Court’s answers to subparts (a) through (c), above, does the definition of “mixed waste” expand the scope of materials regulated as mixed waste under the Washington Hazardous Waste Management Act (HWMA) and RCRA?
Id. at 1001-02.
The Washington Supreme Court accepted certification and, among others, answered Question 1. The court began its analysis by tracing the definition of “mixed waste,” as used in the CPA, through its cross-references to other federal and state statutes. See id. at 1003-04. Under the CPA, “mixed waste” is defined as:
[A]ny hazardous substance or dangerous or extremely hazardous waste that contains both a non-radioactive hazardous component and a radioactive component, including any such substances that have been released to the environment, or pose a threat of future release, in a manner that may expose persons or the environment to either the nonradioactive or radioactive hazardous substances.
RCW 70.105E.030(9). The court observed that the CPA’s definition of “mixed waste” incorporated the term “hazardous substance,” which is, in turn, defined as having “the same meaning as the term is defined in [the Model Toxics Control Act (“MTCA”), RCW 70.105D.020].” Hoffman, 116 P.3d at 1003. The MTCA is “ ‘designed to deal both with the remediation of former environmental hazards and to prevent environmental hazards in the future,’” and makes a property owner “ ‘strictly liable for the remediation of environmental hazards caused by hazardous substances it released[or were released] on its property.’ ” Goodstein v. Cont’l Cas. Co., 509 F.3d 1042, 1046 n. 2 (9th Cir.2007) (quoting Olds-Olympic, Inc. v. Commercial Union Ins. Co., 129 Wash.2d 464, 918 P.2d 923, 927 (1996)). The MTCA’s definition of “hazardous substance,” in turn, cross-references the definition of “hazardous substance” in the HWMA, RCW 70.105D.020(7)(b). Hoffman, 116 P.3d at 1003.
As to Question 1(a), the parties agreed that the CPA does not address materials that are solely “of radioactive source, special nuclear, or byproduct materials.” Id. In response to Question 1(b), the court concluded that the CPA’s definition of “mixed waste” includes material that does not designate as “dangerous waste” under the MTCA and the HWMA. Id. at 1005. Waste must meet certain threshold quantity requirements of certain materials before it will designate as “dangerous waste,” id. at 1004; WAC 173-303-090(8)(a)-(c), but a “hazardous substance,” as defined by the HWMA, has no threshold requirement. Hoffman, 116 P.3d at 1004; RCW 70.105.010(14). Because the HWMA’s definition of “hazardous substance” is incorporated into the CPA’s definition of “mixed waste,” “mixed waste” can include materials that will not designate as “dangerous waste” because those materials do not meet the threshold quantity requirement.
With respect to Question 1(c), the court concluded that the CPA’s definition of “mixed waste” included materials that were not “solid waste” under the RCRA. Hoffman, 116 P.3d at 1006. In light of its analysis of questions l(a)-(c), the Washington Supreme Court held that “the CPA does expand the scope of materials currently subject to regulation as mixed waste beyond the HWMA and the RCRA.” Id. at 1006 (responding to Question 1(d)). '
E. The District Court’s Decision
The district court addressed the motion for summary judgment in a careful and extensive (sixty-page) order. Relying on the Washington Supreme Court’s conclusions that the CPA’s definition of “mixed waste” includes materials that do not designate as “dangerous waste” and materials that are not “solid waste” under the RCRA, the district court held that the CPA was preempted by federal law because it improperly intruded on the field governed by the AEA by regulating byproduct, source, or special nuclear material. The court further held that specific provisions of the statute violated federal sovereign immunity and the Commerce Clause. In addition, the court granted TRIDEC’s motion for partial summary judgment and held that the CPA also violated the Contract Clause. The court denied TRIDEC’s motion for attorney’s fees under 42 U.S.C. § 1988, which is the subject of its cross-appeal. We review de novo the district court’s rulings on summary judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004).
II. Analysis
Generally speaking, “mixed waste” is waste that has both a nonradioactive hazardous component and a radioactive component. Unquestionably, the State has the authority to regulate nonradioactive hazardous materials, and does so primarily through the RCRA and the HWMA. The parties also agree that the regulation of pure radionuclides is governed by the AEA. The question we address here is whether the regulation of the radioactive component of mixed waste is preempted by the AEA.
A. Field Preemption
As the Supreme Court observed, state law can be preempted in either of two general ways: if “Congress evidences an intent to occupy a given field,” or, if the field has not been occupied entirely, “to the extent it actually conflicts with federal law ... or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Silkwood, 464 U.S. at 248, 104 S.Ct. 615. In a landmark case involving nuclear regulation, the Court declared that “the federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). To determine whether the CPA is preempted by the AEA, “the test ... is whether ‘the matter on which the state asserts the right to act is in any way regulated by the federal government.’” Id. at 213, 103 S.Ct. 1713 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 236, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). The AEA preempts the CPA if (1) the purpose of the CPA is to regulate against radiation hazards, or (2) if the CPA directly affects decisions concerning radiological safety. See English v. Gen. Elec. Co., 496 U.S. 72, 84, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). We hold that the CPA is preempted on both grounds.
The district court concluded that the CPA intruded into the AEA field because its purpose was to regulate the safety of radionuclides. Relying on the Washington Supreme Court’s analysis, it held that “[t]he CPA exceeds RCRA authority and, as such, intrudes upon a field (regulation of AEA radionuclides for radiological safety purposes), which is preempted by the AEA.” See 42 U.S.C. §§ 6903(5), (27). The court noted that “[t]he CPA makes the presence of radioactive materials, whether or not a component of ‘mixed waste,’ as defined by the CPA, the trigger for all of its requirements.” As a further basis for preemption, the district court’s order listed eight ways in which the CPA would have a “direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels[.]”
1. The CPA’s Purpose is to Regulate Radioactive Materials
The CPA is preempted because it regulates within the field that is occupied by the AEA. It is abundantly clear from the text of the CPA that it is intended to regulate both nonradioactive hazardous substances and radioactive hazardous substances in order to protect health and environmental safety.
The “Policy” section of the CPA, which corresponds to § 2 of 1-297, is telling as to the State’s intent to regulate radioactive safety. Section 2(1) describes Hanford as a dump for “radioactive and/or hazardous or toxic wastes!.]” RCW 70.105E.020(1) (emphasis added). Subsection 4 warns that Washington’s economy could be harmed “from any accident releasing radiation [.]” RCW 70.105E.020(4) (emphasis added). Subsection 6 expresses the state policy of protecting residents from cancer-causing substances, “including radionu-clides!.]” RCW 70.105E.020(6).
The substantive provisions of the statute also squarely regulate both the nonradioactive and radioactive components of hazardous waste. For example, the first sentence of § 4(2) states:
Any facility owner or operator of a site storing, managing, processing, transferring, treating, or disposing of mixed wastes shall apply for and obtain a final facility permit under [the HWMA], this chapter, and [RCRA], before transporting to, storing or disposing at, the facility any additional mixed wastes not generated at the facility.
RCW 70.105E.040(2). This section imposes a condition on the ability of facility owners to accept mixed waste that is generated off-site. Simply because the permit is issued under the RCRA does not require the term “mixed waste” to be interpreted in a way that excludes the radioactive component, an interpretation that would be at odds with the interpretation of the Washington Supreme Court. Similarly, § 6(1) directs Ecology to order “site” owners and operators where “mixed wastes” are believed to be disposed to cease disposal and initiate investigations. RCW 70.105E.060(l)(a).
Some provisions in the CPA regulate “pure” AEA radionuclides. For example, under § 4(6)(b), Ecology is directed to not issue or modify a permit if there has been a release of radionuclides at the site or facility. RCW 70.105E.040(6)(b). Section 5 requires Ecology to“consider releases ... of radioactive substances or radionu-clides as hazardous substances” and to “require corrective action for, or remediation of, such releases!.]” RCW 70.105E.050(1).
The purpose of the CPA is evident in these provisions: to regulate the treatment, storage, and disposal of radioactive materials, among other materials, in order to protect the health and safety of Washington residents and the environment. Such regulation, however laudable its purpose, invades the province of the AEA.
The Sixth Circuit’s decision in United States v. Kentucky is particularly instructive. 252 F.3d at 816. There, the court addressed whether the AEA preempted state permit conditions on the disposal of radioactive waste in a landfill. The conditions prohibited the DOE from placing solid waste with more than a de minimis amount of radioactivity in a landfill and further prohibited the DOE from disposing of solid waste that contained radionuclides in a landfill without approval from Kentucky’s Division of Waste Management. Id. at 820. The court noted that these permit conditions “specifically limit the amount of ‘radioactivity’ and ‘radionu-clides.’ ” Id. at 823. It explained that the state “seeks to impose these conditions to protect human health and the environment. The permit conditions therefore represent an opportunity by the [state] to regulate materials covered by the AEA based on the [state’s] safety and health concerns, and are thus preempted.” Id.
As in Kentucky, the State here seeks to impose conditions on the disposal of AEA materials out of concern for the health and environmental risks that increased contamination will cause. This type of regulation falls squarely within the field preempted by the AEA.
The State attempts to sidestep the preemption issue by shifting the applicable definitions, contending that it is reasonable to read “mixed waste” within the operative provisions of the CPA as limited to the materials that may be regulated under the RCRA and the HWMA. This construction is neither reasonable nor legally permissible.
The State’s argument fails at the outset because we are bound by the Washington Supreme Court’s opinion that “mixed waste” includes more than the materials regulated under the RCRA and the HWMA. See Reinkemeyer v. Safeco Ins. Co. of Am., 166 F.3d 982, 984 (9th Cir.1999) (explaining that “[w]e are bound by the answers of state supreme courts to certified questions just as we are bound by state supreme court interpretations in other contexts.”). The Supreme Court has explained that “state courts are the ultimate expositor of state law [and] we are bound by them constructions except in extreme circumstancesf.]” Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In other words, the State cannot re-litigate its argument that “mixed waste” should be read narrowly without invoking one of the “few established grounds for disregarding a state court interpretation of state law.” Reinkemeyer, 166 F.3d at 984. The State does not point to any “obvious subterfuge to evade consideration of a federal issue” or a “violation of federal law” that could undercut the Washington Supreme Court’s analysis. See Mullaney, 421 U.S. at 691 n. 11, 95 S.Ct. 1881; Reinkemeyer, 166 F.3d at 984.
The State’s position is somewhat curious because it was at the State’s urging that the district court certified to the state supreme court questions that would determine whether “mixed waste” included substances that were not regulated under the RCRA or the HWMA. See Hoffman, 116 P.3d at 1001-02. The court answered in the affirmative. Id. at 1006. In arriving at this construction, the court rejected the arguments that the State and the Sponsors advance now that “the CPA’s reference to ‘hazardous substances’ is necessarily limited to only those materials that have been released or pose a threat of release [making] the CPA ... coextensive with the HWMA and the RCRA.” Id. at 1004 (emphasis in original). The court refused to “ignore the direct cross-references incorporating the expansive definition of ‘hazardous substances’ in RCW 70.105.010(14).” Id. “Ecology’s contention that the word ‘waste’ limits the application of otherwise clear and unequivocal statutory definitions to circumstances of ‘release or threatened release’ is wholly without merit.” Id. The court pointedly noted that it was “left with a choice between two alternatives”: “a plain language interpretation based on the statutory definitions of ‘mixed waste’ and ‘hazardous substance,’ ” as espoused by the United States, or Ecology’s position which would “artificially eliminate much of the substance of these definitions.” Id. at 1005. In the end, Ecology’s “artificial limitation would require [the court] to ignore long-held rules of statutory interpretation.” Id.
The State now argues that, under United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), we cannot invalidate á statute as unconstitutional if there is a reasonable, constitutional construction. It is equally true, though, that we cannot rewrite the statute to impose an artificial, unreasonable definition, Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988); United States v. Buckland, 289 F.3d 558, 564 (9th Cir.2002) (en banc), nor can we hold that the CPA is eo-extensive with the RCRA and the HWMA when the state supreme court has expressly ruled otherwise.
A key purpose of'the CPA is to regulate the radioactive component of mixed waste, as well as the nonradioactive component, for health and safety reasons. Accordingly, the CPA is preempted by the AEA. Except for “limited powers ceded to the states,” and not disputed here, “the federal government has occupied the entire field of nuclear safety concerns.” Pac. Gas & Elec., 461 U.S. at 212, 103 S.Ct. 1713.
2. Direct and Substantial Effects
The CPA is also preempted because it directly and substantially impacts the DOE’s decisions on the nationwide management of nuclear waste. See English, 496 U.S. at 85, 110 S.Ct. 2270. According to the declaration of Dr. Ines Triay, Chief Operating Officer for Environmental Management at the DOE, Han-ford figures prominently in the DOE’s waste management plan. Hanford is the only federal facility that can accept off-site mixed low level waste for disposal. The use of commercial facilities for disposal is limited because their long-term availability is uncertain and because commercial licenses preclude the facilities from accepting higher-activity mixed low-level waste, classified waste, and other types of waste. The DOE’s National Laboratories plan to dispose of their waste at Hanford because that waste is too radioactive to be sent to a commercial facility, or is classified. Han-ford is the only viable option for some sites with higher-activity mixed low-level waste.
In particular, the Navy disposes of radioactive waste (which also contains hazardous substances, as defined by the CPA) that is generated through the maintenance and repair of nuclear powered ships at shipyards in Washington at Hanford. If Hanford was unavailable, it is possible, but “uncertain,” whether the Navy can dispose of the waste at another site.
The district court enumerated eight different direct and substantial effects that flow from the CPA. It wrote that “the defendants do not deny that these things happen, but assert there is no guarantee they will depending on the State’s interpretation and implementation of the CPA.” Yet again, the State tries to hide behind an as-yet-to-be-determined interpretation and implementation of the statute when the state supreme court has already laid out, in binding terms, the scope of the CPA. Finally, the State’s contention that the CPA does not have a direct and substantial effect on the DOE’s decision-making because the DOE is not currently shipping waste to Hanford misses the point. The facilities at Hanford are part of the DOE’s overall nuclear waste management plan. Legislation geared to effectively close Hanford for an extended period of time directly affects the DOE’s ability to make decisions regarding if and when it will ship additional waste to Hanford. Because of these direct and substantial effects, the CPA is preempted.
B. Savings Clause
The CPA contains a savings clause that authorizes Ecology to “regulate mixed wastes to the fullest extent it is not preempted by federal law[.]” RCW 70.105E.040(1). Regulation of the radioactive component of mixed waste is preempted by federal law. The CPA regulates mixed waste as a whole and certain provisions contain specific mandates concerning the radioactive component. The definitional cross-references and intersection with multiple state and federal statutes make the CPA a complex regulatory web. For example, in the CPA, the focus is on “mixed waste,” without distinguishing the radioactive component from the “hazardous” component, and yet the HWMA focuses on “hazardous waste,” even where it is a component of “mixed waste.”
Although it might be possible to excise those provisions that deal solely with radioactive materials, to construe the remaining sections of the CPA as limited to the nonradioactive component would require us to examine and rewrite most of the statute in a vacuum as to how the various provisions were intended to intersect and in a way that would be at odds with the purpose of the statute. See Alaska Airlines v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987) (“ ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’ ”) (quoting Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam)). We will not undertake this task of unscrambling the egg. See Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 937 (9th Cir.2004) (noting the court’s “previously expressed concern that federal courts ought not be redrafting state statutes at the level of individual words”). And, as a practical matter, excising the most significant conflicts in the statute would result in a very different statute than the one envisioned by 1-297.
The CPA is preempted by the AEA because its purpose is to regulate AEA materials for safety purposes and because the CPA has a direct and substantial effect on the DOE’s ability to make decisions regarding the disposal of radioactive hazardous waste. The district court’s grant of summary judgment to the United States, Fluor, and TRIDEC is affirmed.
III. TRIDEC’S Cross-Appeal for Attorney’s Fees
TRIDEC’s cross-appeal challenges the district court’s denial of its motion for attorney’s fees under 42 U.S.C. § 1988. The district court resolved this case under the Supremacy Clause, holding that “the CPA is field preempted and facially invalid as a whole.” We have affirmed that result. Attorney’s fees are not available in an action under the Supremacy Clause. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989). The district court also identified other deficiencies and addressed the Commerce Clause and Contract Clause arguments, but only as alternative holdings and to avoid piecemeal appeal. In addition, the court noted that the judgment had not changed the legal relationship among the parties, as the State “had taken no action in the first instance to enforce the CPA against the members of TRIDEC.” See Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782-792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) (holding that to be considered a prevailing party under § 1988, there must be “a resolution of the dispute which changes the legal relationship” between the plaintiff and the defendant). The district court’s denial of TRIDEC’s motion for attorney’s fees is affirmed.
AFFIRMED.
. For almost twenty years there has been litigation over whether radioiodine from Han-ford caused various cancers and life-threatening diseases in residents of the surrounding area.
. "Source material" includes uranium, thorium, and other materials that the Nuclear Regulatory Commission deems necessary for the production of special nuclear material. 42 U.S.C. § 2014(z). "Special nuclear materials” are those materials, such as plutonium and enriched uranium, that are "enriched in the isotope 233 or in the isotope 235.” Id. § 2014(aa). "By-product material” includes "(1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content.” Id. §§ 2014(e)(1), (2).
. Source material, special nuclear material, and byproduct material are often referred to as "AEA materials.”
. The State suggests that the RCRA and the FFCA give states the authority to regulate the radioactive component of mixed waste. Neither federal statute explicitly allows states to engage in broad regulation of the radioactive component of mixed waste. The FFCA gives states a limited role in mixed waste management by directing the DOE to submit plans regarding mixed waste to states for approval, modification, or disapproval. 42 U.S.C. § 6939c; see also H.R. Conf. Rep. No. 102-866, at 22 (1992). Congress stopped short, though, of giving states broader regulatory authority.
. Ultimately, the parties agreed to extend the temporary order until the district court ruled on a motion for summary judgment.
. Under the MTCA, “hazardous substance” is defined as:
(a) Any dangerous or extremely hazardous waste as defined in RCW 70.105.010(5) and (6), or any dangerous or extremely dangerous waste designated by rule pursuant to chapter 70.105 RCW;
(b) Any hazardous substance as defined in RCW 70.105.010(14) or any hazardous substance as defined by rule pursuant to chapter 70.105 RCW;
(c) Any substance that, on March 1, 1989, is a hazardous substance under section 101(14) of the federal cleanup law, 42 U.S.C. Sec. 9601(14):
(d) Petroleum or petroleum products; and
(e)Any substance or category of substances, including solid waste decomposition products, determined by the director by rule to present a threat to human health or the environment if released into the environment.
RCW 70.105D.020(10).
. Under the HWMA, "hazardous substances” are defined as:
[A]ny liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the characteristics or criteria of hazardous waste as described in rules adopted under this chapter.
RCW 70.105.010(14).
. Because the CPA is invalid under the Supremacy Clause, we do not need to reach the additional constitutional challenges. Although we do not reach the issue of sovereign immunity or the challenges under the Commerce Clause and the Contract Clause, we decline to vacate those portions of the district court's order as the State requests. Rather, we simply express no view on issues unnecessary to this opinion. See Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 754 (2d Cir.1996) (declining a request to vacate an alternative basis for the judgment below).
. The State argues that § 5(1) only regulates radiological safety in the context of environmental releases and, therefore, is outside the scope of the AEA and consistent with permissible state regulation under CERCLA. Through CERCLA, Congress allows states to apply their “laws concerning removal and remedial action” to federally-owned facilities. 42 U.S.C. § 9620(a)(4). However, § 5(1) directs Ecology to “require corrective action for, or remediation of” releases of radioactive substances. RCW 70.105E.050(1). "Corrective action” is not defined in the CPA, but is a term that is used in connection with the RCRA. See 42 U.S.C. § 6924. Because radioactive materials are excluded from the RCRA, requiring a corrective action for the release of radionuclides exceeds the authority of the RCRA.
. For example, the district court explained that the CPA would have the direct and substantial effect of prohibiting the Navy from sending certain classified nuclear waste to Hanford, trumping DOE decision-making with respect to the cleanup and disposal of AEA radionuclides, including any expansion of any land disposal unit for radionuclides, and preventing the DOE from using methods it deems appropriate for closing tanks that contain AEA radionuclides.
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OPINION
SMITH, Chief Judge.
Appellants, Crystal Spring Ecosystem, Highland Township Municipal Authority, and Citizens Advocating a Clean Healthy Environment, Inc.—ail represented by the Community Environmental Legal Defense Fund (“CELDF”)—sought to intervene on the side of Defendant-Appellee Township of Highland (the “Township”) in defense of the legality of the Highland municipal ordinance known as the “Community Bill of Rights.” The Community Bill of Rights, among other things, prohibited Plaintiff-Appellee Seneca Resources Corporation from using a well to store waste from fracking. The District Court denied Appellants’ motion to intervene, holding that the Township adequately represented Appellants’ interests in defending the Community Bill of Rights. Appellants moved for reconsideration. While the motion for reconsideration was pending, the Township repealed the Community Bill of Rights and entered into a settlement with Seneca that culminated in a consent decree adopted by the District Court. Appellants filed a motion, for reconsideration of the Consent Decree, which the District Court denied along with Appellants’ motion for reconsideration of their motion to intervene.
Appellants now appeal four orders: (1) the denial of their motion to intervene, (2) the denial of the motion for reconsideration of their motion to intervene, (3) the District Court’s adoption of the Consent Decree, and (4) the denial of the Appellants’ motion for reconsideration of the Consent Decree. Appellants’ original .motion to intervene is now moot because there is no longer an (Ordinance to defend. In their reply brief and at oral argument, Appellants fell back on the argument that they had a right to intervene because the Consent Decree purportedly “establishes] ... the legality or illegality of [Appellants’] protected rights.” Appellants’ 'Reply Br. 8. But the Consent Decree does not bind any of the Appellants nor does it deprive them of any rights after the Community Bill of Rights has been repealed. Because Appellants cannot intervene, they are nonparties. Because they are nonparties, they cannot appeal the Consent Decree. Therefore, we will affirm the District Court’s order denying Appellants’ motion for reconsideration of the order denying intervention. We lack jurisdiction to review the remaining three orders because of mootness and standing issues.
BACKGROUND
I. ACTORS
Plaintiff-Appellee Seneca Resources Corporation is a Pennsylvania corporation engaged in oil and natural gas exploration and production. Seneca sought to convert a natural gas well in Highland Township into a Class'll underground injection control well in which to store waste from fracking.
Defendants-Appellees are Township of Highland and the Highland Board of Supervisors. Highland is a township located in Elk County, Pennsylvania,. The Board of Supervisors is its three-person governing body. See 53 P.S. § 65601 (“Townships shall be governed and supervised by boards of supervisors. Boards of supervisors shall consist of three members or, if approved by the electors under section 402(b), five members.” (footnote omitted)).
CELDF advocates that communities pass laws that assert community rights against corporations and others engaged in activity disfavored by members of the community. CELDF appears, to have drafted the ordinance at issue here. CELDF represented the Township earlier in this litigation, dnd a different CELDF lawyer has represented Appellants.
Appellants are Crystal Spring Ecosystem, Highland Township Municipal Authority, and Citizens Advocating a Clean Healthy Environment, Inc. :
Crystal Spring Ecosystem “encompasses [a natural] spring, as well as the surrounding hillside and riparian forests, soils, and bedrocks, [and] the residents of James City who drink from Crystal Spring.” Appellants’ Br. 21; accord App.197-98 (Mot. Intervene) ¶ 14. , ¡
Highland Township Municipal Authority is a municipal government • agency that provides water from Crystal Spring for unincorporated James City, a city within Highland Township,
Citizens Advocating a Clean Healthy Environment, Inc. (“CACHE”) is a nonprofit corporation that “is, and has been, the primary advocate” for the Community Bill of Rights. App.197 (Mot. Intervene) ¶¶ 9-13. Its three directors are residents of Highland Township who “own property in James City connected to the Municipal Authority water supply.” App.197 (Mot. Intervene) ¶ 11.
II. FACTUAL AND PROCEDURAL HISTORY
On January 9, 2013, the Township enacted a far-reaching ordinance that, among other things, prohibited “disposal injection wells” from existing within Highland. App. 046-50 (2013 Ordinance).
On-June 17, 2014, the EPA issued a final, ten-year permit to Seneca to allow it to operate a Class II-D injection well. Part 1.A of the permit says, “Issuance- of this permit does not .., authorize ... any infringement of State or local law or regulations.” App.082 (Permit).
Sometime between November 3, 2014, and January 8, 2015, the Highland Township Board of Supervisors wrote to the EPA, stating that the EPA permit was invalid under the Township’s ordinance. See App.095-96 (Letter).
Senecá sued the Township and the Board of Supervisors on February 18, 2015, alleging that the ordinance was invalid. Seneca sought damages, attorneys’ fees, and an injunction prohibiting the Township from enforcing the ordinance. The Township and the Board of Supervisors were represented by CELDF lawyers.
On March 24, 2015, the Township adopted the Community Bill of Rights as an amendment to the January 9, 2013 ordinance. The. Community Bill of Rights established a right to water and clean air for persons, natural communities and ecosystems and stated that any resident could enforce an ecosystem’s rights “to exist and flourish.” App.119 (Community Bill ‘ of Rights). Section 3 of the Community Bill of Rights made it illegal for any corporation or government to deposit waste from “oil and gas extraction’,’ “within Highland Township” and further claimed to invalidate any “permit, license, privilege, charter, or other authority” that violated the Community Bill of Rights. App.120 (Community Bill of Rights). Section 4(b) of, the Community Bill of Rights stated that any resident could enforce the rights of the Township. App.120 (Community Bill of Rights). Section 4(c) of the Community Bill of Rights stated that any resident of Highland Township could “enforce or defend the rights of ecosystems.” App.120 (Community Bill of Rights). Section 5(a) of the Community Bill of Rights stated that “[c]orporations that violate this Ordinance, or that seek to violate this Ordinance, shall not be deemed to be ‘persons’ ” and that those corporations did not have the “power to assert state or federal preemptive laws in an attempt to overturn” the Community Bill of Rights. App.120 (Community Bill of Rights). The Community Bill of Rights called for “amendment of the Pennsylvania Constitution and the federal Constitution to recognize a right to local self-government free from governmental preemption and or nullification by corporate ‘rights.’ ” App.121 (Community Bill of Rights).
On April 6, 2015, Seneca filed an amended complaint. The Amended Complaint took note of the Community Bill of Rights and further alleged that the Township told the Pennsylvania Department of Environmental Protection that the original ordinance would preclude the DEP from issuing a state permit. Seneca claimed that the Township’s communication with the DEP was causing the DEP to delay issuance of the state permit. The Amended Complaint alleged the same claims and requested the same relief as the original complaint. See App.106-15 (Am. Compl.).
On August 11, 2015, Appellants, represented by a different CELDF lawyer than the lawyer who represented the Township and the Board of Supervisors, filed their motion to intervene pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure in order to defend the legality of the ordinance. See Oral Arg. at 7:04 (“[Appellants] tried to come into this case on the side of the Government with the interests of defending the ordinance....”).
On December 81, 2015, one of the three members of the Board of Supervisors died.
On March 29, 2016, the District Court denied the Appellants’ motion to intervene because Appellants failed to show that the Township and the Board of Supervisors did not adequately represent Appellants’ interests. See Seneca Res. Corp. v. Highland Township, No. 15-60 Erie, 2016 WL 1218605, at *2-3 (W.D. Pa. Mar. 29, 2016).
On April 26, 2016, Appellants moved for reconsideration of the March 29, 2016 order denying their motion to intervene. Appellants alleged there had been “a material change in the relevant facts” because “the composition of the Highland Township Board of Supervisors changed.” App.317 (Mot. Reconsideration Denial Mot. Intervene). According to Appellants, the new replacement supervisor expressed the view that the Community Bill of Rights was likely invalid and therefore the Board majority was opposed to continuing to defend the Community Bill of Rights. Under these new circumstances, Appellants argued, the Township would no longer adequately represent Appellants’ interests. App.318-19 (Mot. Reconsideration Denial Mot. Intervene). On May 13, 2016, a CELDF lawyer filed a response to the motion for reconsideration on behalf of the Township and the Board of Supervisors. In the response, the Township and the Board said that they supported the motion for reconsideration because “it is unlikely that the Township’s aggressive defense of the Ordinance will continue.” App.345 (Response).
On May 30, 2016, CELDF moved to withdraw as counsel of record for the Township and its Board of Supervisors. CELDF claimed that Defendants “have ceased to communicate with their counsel, despite multiple attempts by counsel to contact the clients,” which apparently included the period during which Defendants filed their “response” supporting Appellants’ motion for reconsideration. App.348-50 (Mot. Withdrawal). On June 2, 2016, CELDF informed the court that Defendants said they were hiring new counsel.
The Board of Supervisors repealed the Community Bill of Rights on the night of August 10, 2016.
The following day, Seneca and Defendants filed a stipulation and consent decree under which the Township stipulated that much of the Community Bill of Rights was “an impermissible exercise of Highland’s legislative authority,” “unconstitutional,” or “unenforceable.” App.388-89 (Stipulation and Consent Decree) ¶ 13(a)-(g). Additionally, under the Consent Decree, the Township and the Board of Supervisors withdrew their objection to Seneca’s DEP permit applications and withdrew their counterclaims, and Seneca withdrew its counterclaims against the Township and the Board of Supervisors. App.389-90 (Stipulation and Consent Decree) ¶ 13(i)— ffi. The parties also requested that the Court “adopt ... as its findings and opinion regarding the merits of Seneca’s claims” the parties’ stipulations about why specific parts of the Community Bill of Rights were unlawful. See App.390 (Stipulation and Consent Decree) ¶ 16.
That same day, the District Court entered an order designated as the final judgment. The order adopted Paragraph 13(a)-(g) of the Consent Decree as the Court’s findings and opinion. Paragraph 13(a)-(g) were the portions of the Consent Decree that concluded that much of the Community Bill of Rights was unenforceable.
On August 15, 2016, Appellants filed a motion for reconsideration of final judgment arguing that the Township and the Board of Supervisors were not considering the long-term interests in clean water, that Appellants had rights to be parties in the case, and that Appellants would have participated in settlement negotiations.
On August 16, 2016, the District Court denied Appellants’ motion for reconsideration of the denial of their motion to intervene. Before ruling on the motion to intervene in this case, the District Court denied intervention in a similar case, Pennsylvania General Energy Co., LLC v. Grant Township, No. 14-cv-209ERIE, 2015 WL 6002163 (W.D. Pa. Oct. 14, 2015). In Pennsylvania General Energy, we affirmed the denial of the motion to intervene in a nonprecedential order. Without addressing changed circumstances or Appellants’ new arguments in this case, the District Court explained that our affirmance in Pennsylvania General Energy gave it confidence in its original decision to deny intervention to Appellants. See App.022-23 (Order).
That same day, the District Court denied-Appellants’ motion for reconsideration of the order approving the Consent Decree because, the Appellants were, not parties.
On September 12, 2016, Appellants appealed the following: the March 29, 2016 order denying, the motion to intervene; the August 16, 2016 order denying the motion to reconsider the order denying the motion to intervene; the August 12, 2016 final order adopting the Consent Decree; and the August' 16, 2016 memorandum opinion denying reconsideration of the adoption of the Consent Decree.
Although litigation in the District Court relating to the Community Bill of Rights has concluded, a second, very similar case is now before the same District Court. On November 8, 2016,. the Township adopted a Home Rule Charter that prevented Seneca from storing fracking waste in Highland. See Compl. ¶ 1, Seneca Res. Corp. v. Highland Township, No. 16-289 (W.D. Pa. Nov. 30, 2016), ECF No. 1; see also See Compl. Ex. A § 401, No. 16-289 W.D. Pa. Nov. 30, 2016), ECF No. 1-1 (“It shall be unlawful within Highland Township for any corporation or government to engage in the depositing of waste from oil and gas extraction.”). In response to .the Home Rule Charter, Seneca brought, a separate lawsuit against the Township and the Board of Supervisors. In that litigation, two of the Appellants—Citizens Advocating a Clean Healthy Environment, Inc., and the Crystal Spring Ecosystem—have moved to intervene.
JURISDICTION
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. Appellants claim we have appellate jurisdiction to review the District Court’s decisions under 28 U.S.C. § 1291. As discussed below, fatal standing or mootness problems prevent us from taking appellate jurisdiction except to the extent that we hold that the District Court did not abuse its discretion when it denied Appellants’ motion for reconsideration of the order denying intervention.
STANDARD OF REVIEW
Our “continuing obligation” to assure that we have jurisdiction requires that we raise issues of standing and mootness sua sponte. Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 211 (3d Cir. 2007); see also Chong v. Dist. Dir., INS, 264 F.3d 378, 383 (3d Cir. 2001). We assess our own appellate jurisdiction in the first instance. Cf. Freedom from Religion Found., Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d 469, 475 n.4 (3d Cir. 2016) (“We exercise de novo review over legal conclusions concerning standing and mootness.”).
We review denials of motions for reconsideration of denials of motions for intervention as of right under a “more stringent” abuse of discretion review. Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir. 1987); see McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 245 n.9 (3d Cir. 2014) (“Because an appeal from a denial of a Motion for Reconsideration brings up the underlying judgment for review, the standard of review varies with the nature of the underlying judgment.” (quoting McAlister v. Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992))); Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998) (“We will reverse a district court’s determination on a motion to intervene as of right if the court has abused its discretion by applying an improper legal standard or reaching a conclusion we are confident is incorrect.” (citing Harris, 820 F.2d at 597)).
ANALYSIS
. There are two sets of rulings Appellants dispute: (1) two rulings on motions relating to intervention and (2) two rulings on motions relating to the Consent Decree. The second set is linked, to the first because, to appeal rulings related to the Consent Decree, Appellants must, among other things, be “parties] ... aggrieved by the district court’s judgment.” Armotek Indus., Inc. v. Emp’rs Ins. of Wausau, 952 F.2d 756, 759 n.3 (3d Cir. 1991) (emphasis omitted). Appellants are not parties.
Appellants contend that they should have been parties because the District Court should have granted their motion to intervene. Their main claim to intervene in the District Court and their only claim in their opening brief .here relates to their interest in defending the Community Bill of Rights. Because the Community Bill of Rights has been repealed, this argument is moot. In a sentence in their reply brief and at length at oral argument, Appellants argued they should be able to intervene to challenge the District Court’s adoption of Paragraph 13(a)-(g) of the Consent Decree. Appellants argue that the District Court could not adopt findings and holdings to which the parties agreed. Because the Consent Decree does not bind Appellants or deprive them of rights, the District Court did not abuse its discretion in denying their motion for reconsideration of the denial of intervention to challenge those aspects of the Consent Decree.
Finally, because Appellants cannot intervene for either of the two reasons they advanced for intervention, they lack standing to challenge the Consent Decree.
I. APPELLANTS CANNOT INTERVENE
Appellants cannot intervene either to save the ordinance or to challenge the adoption of the Consent Decree.
A. Intervention To Defend the Ordinance Is Moot
“The doctrine of mootness requires that ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’” Brown v. Phila. Hous. Auth., 350 F.3d 338, 343 (3d Cir. 2003) (quoting N.J. Turnpike Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 31 (3d Cir. 1985)).
The party asserting mootness bears a heavy burden to show the case is moot. See Burns v. PA Dep’t of Corr., 544 F.3d 279, 284 (3d Cir. 2008) (“Such lack of specificity, along with the fact that the Department of Corrections urges us to refrain from vacating the favorable decision entered by the District Court, counsels against the conclusion that the Appellees have met the ‘“heavy,” even “formidable” burden’ that a party alleging mootness must bear.” (quoting United States v. Gov’t of V.I., 363 F.3d 276, 285 (3d Cir. 2004))).
After the party asserting mootness bears that burden, the burden-shifts to the party opposing mootness to explain why the case is not moot. See Richardson v. Bledsoe, 829 F.3d 273, 283 n.4 (3d Cir. 2016) (“Richardson has not carried his burden of showing that he fits into either the ‘capable of repetition yet evading review’ or the ‘inherently transitory’ exceptions to mootness.”).
On August 10, 2016, the Board repealed the ordinance that Appellants wanted to defend. Appellants originally stated that their purpose for seeking to intervene was to defend the Community Bill of Rights. Appellants have never argued that this Court could revive the Community Bill of Rights or that Appellants had any right to prevent the repeal. Cf. Util. Contractors Ass’n of N.J., Inc. v. Toops, 507 F.2d 83, 86 (3d Cir. 1974) (“In the absence of this lawsuit, had any of the municipalities chosen voluntarily to change its building code, the appellants’ monetary interests would not have conferred legal standing to prevent such governmental action.”). Therefore, Appellees have met their burden of showing Appellants’ defense of the Community Bill of Rights would be moot.
Appellants raise three defenses to mootness: (1) that the intervention issue is “capable of repetition yet evading review”; (2) that this lawsuit is a matter of “public interest”; and (3) that we can ignore mootness because “the resolution on the merits” of the intervention issue “is clear.” Appellants’ Reply Br. 5-7. All of these fail. Therefore, Appellants cannot carry their burden to explain why the case is not moot.
First, the issue here does not “evade review.” An issue evades review when the issue cannot be resolved in time to fully contest the challenged action. See Richardson, 829 F.3d at 283 n.4 (“Richardson has not shown ... that the amount of time an inmate spends in the SMU Program is typically so brief as to evade review by becoming moot before a District Court can rule on class certification”). Appellants argue that they are unable to get a court ruling on their motions to intervene in subsequent litigation because a case could become moot before any ruling is issued. For instance, Appellees could settle the Home Rule Charter litigation, Seneca Res. Corp. v. Highland Township, No. 16-289 (W.D. Pa.), before the District Court rules on the motion to intervene in that case. Appellees’ argument is speculative at best. There is enough time for the District Court to rule on CACHE and the Ecosystem’s motion to intervene in the Home Rule Charter litigation. See, e.g., County of Morris v. Nationalist Movement, 273 F.3d 527, 534 (3d Cir. 2001) (“The District Court conducted hearings on an expedited basis and rendered an opinion in time to guide the parties’ conduct during that event. With respect to any dispute that might arise in connection with future Independence Day activities, the parties, if unable to resolve their differences, would have ample opportunity to bring a new lawsuit and to develop a record reflective of the particular circumstances attendant on that dispute.”). Thus, the issue is not so fleeting as to evade review.
Second, Appellants cite a dated, out-of-eircuit case for the proposition that the public interest in the resolution of a case can be an exception to mootness. See Alton & S. Ry. Co. v. Int’l Ass’n of Machinists,
463 F.2d 872, 880 (D.C. Cir. 1972) (“But when the particular controversy has expired, so that there is no duty or obligation of the court to maintain the appeal, an application of the doctrine permitting maintenance of appeals of recurring controversies in cases of public interest necessarily identifies judicial latitude.”). That case also appears to be about the “capable of repetition yet evading review” exception. See id. at 878 (“[T]here is a strong counter-current of doctrine under which the court continues an appeal in existence, notwithstanding the lapse in time of the particular decree or controversy, when the court discerns a likelihood of recurrence of the same issue, generally in the framework of a ‘continuing’ or ‘recurring’ controversy, and “public interest” in maintaining the appeal.”). Were that case to stand for a broader “public interest” principle, it would not avail Appellants. The Third Circuit has never adopted a standalone public interest exception to mootness. See N.J. Turnpike Auth., 772 F.2d at 30 (“Although we recognize that the substantive issues are of considerable public interest, we believe that this alone does not impart Article III justiciability when there is ‘no reasonable expectation that the wrong will be repeated.’ ” (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953))); Campbell Soup Co. v. Martin, 202 F.2d 398, 399 (3d Cir. 1953) (“[E]ven if this were a subject of public interest we do not think that the exception [to mootness] could be applied in a federal court.”).
Third, Appellants argue that we can ignore mootness when “the resolution on the merits is clear.” Appellants’ Reply Br. 6 (quoting Pickus v. U.S. Bd. of Parole, 543 F.2d 240, 242 (D.C. Cir. 1976) (internal quotation mark omitted)). But “[u]nder Article III of the Constitution, this Court has no authority to give opinions upon moot questions.or abstract propositions, or, to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Whiting v. Krassner, 391 F.3d 540, 544 (3d Cir. 2004) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)) (internal quotation marks omitted); see also Elliott v. Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir. 2012) (explaining that, we cannot opine on a ease over which we have no jurisdiction). Thus, even were the resolution of Appellants’, original intervention motion glaringly, obvious, we cannot rule on it because it is moot. ⅛
B, The District Court Did Not Abuse Its Discretion in Denying the Appellants’ Motion To Intervene To Challenge the Consent Decree
Perhaps recognizing that they could no longer rely on their interests in defending the Community Bill of Rights, Appellants now focus heavily on the District Court’s adoption of part of Paragraph 13 of the Consent Decree as the basis for their right to intervene. The .District Court “adopt[ed]- as its findings, and as the opinion and order of this Court, those matters stipulated to in ¶¶13(a)-(g) of the Stipulation and Consent Decree.” App.021 (Order, Seneca Res. Corp. v. Highland Township, No. 1:15-cv-60-SPB (W.D. Pa. Aug. 12, 2016), ECF No. 84). In turn, Paragraph 13(a)-(g) stated that the parties “stipulate and agree” that various sections of the Community Bill of Rights were invalid for various reasons. App.388-89 (Stipulation and Consent Decree) ¶ 13(a)-(g).
Appellants now claim that they must be allowed to intervene because the portion of the District Court’s order that adopted Paragraph 13(a)-(g) “establishes] ... the legality or illegality of [Appellants’] protected rights.” Appellants’ Reply Br. 8. More specifically, Appellants argue that the .District Court lacked the power to enter that order because the parties were no longer adverse to each other when the Consent Decree was adopted,
We cannot reach that argument because the District Court did not abuse its discretion in denying Appellants’ motion to reconsider the order denying théir motion to intervene. Appellants do not have a legally protectable interest in the purportedly substantive elements of the Consent Decree sufficient to allow them to intervene to argue that the case was moot when the Consent Decree was adopted.
“To justify intervention as of right, the applicant must have an interest ‘relating to the property or transaction which is the subject of the action’ that is ‘significantly protectable.’ ” Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998) (quoting Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), superseded on other grounds by 26 U.S.C. § 7609 as stated in Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 316, 105 S.Ct. 725, 83 L.Ed.2d 678 (1985)); accord Fed. R. Civ. P. 24(a)(2). “It is not sufficient that the claim be incidentally affected; rather, there must be ‘a tangible threat’ to the applicant’s legal interest.... [Tjhis factor may be satisfied if, for example, a determination of the action in the [proposed intervenors’] absence will have a significant stare decisis effect on .their claims, or. if the [proposed intervenors’] rights may be affected by a proposed remedy.” Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1123 (3d Cir. 1992) (citation omitted) (quoting Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987)); see also Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 226-27 (3d Cir. 2005).
The Consent Decree does not establish Appellants’ legal rights. Were Appellants to find themselves in á position to argue the merits of the Community Bill of Rights (or a law like the Community Bill of Rights), Appellants would not be barred by (1) estoppel, (2) stare decisis, (3) judicial consequences of the Consent Decree, or (4) any contractual consequences largely because Appellants were not parties .to the Consent Decree. Because the Consent Decree does not—and cannot—affect Appellants’ rights, the District Court did not abuse it discretion in denying Appellants’ motion for reconsideration of the denial of the motion to intervene.
First, there are no estoppel consequences to Appellants here because Appellants were not parties to this case and have not had a full and fair opportunity to litigate any issue regarding the merits of the case. See, e.g., Peloro v. United States, 488 F.3d 163, 175 (3d Cir. 2007) (“For defensive collateral estoppel—a form of non-mutual issue preclusion—to apply, the party to be precluded must have had a ‘full and fair’ opportunity to litigate the issue in the first action.” (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 328, 332, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979))); Office of Disciplinary Counsel v. Kiesewetter, 585 Pa. 477, 889 A.2d 47, 50-51 (2005) (requiring “the party against whom the plea is asserted was a party or in privity with a party in the prior case” and “the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding”); Therefore, the District Court’s declaration does not estop any party from defending the Ordinance except 'potentially the Township and the Board of Supervisors.
Second, stare decisis does not affect Appellants here because “[a] decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or' even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (quoting 18 James W. Moore et al., Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011)); accord Daubert v. NRA Grp., LLC, 861 F.3d 382, 394-95, 2017 WL 2836808, at *8 (3d Cir. July 3, 2017); see also Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d Cir. 1991) (“[I]t is clear that there is no such thing as ‘the law of the district.’ ”); Ashley v. City of Jackson, 464 U.S. 900, 902, 104 S.Ct. 255, 78 L.Ed.2d 241 (1983) (Rehnquist, J., dissenting from denial of certiora-ri) (“The decree may be scrutinized by the judge for fairness prior to his approval, but there is no contest or decision on the merits of the issues underlying the lawsuit. Such a decree binds the signatories, but cannot be used as a shield against all future suits by nonparties seeking to challenge conduct that may or may not be governed by the decree.”).
Third, there are no judicial consequences to Appellants flowing from the Consent Decree. That is, Appellants could not be held in contempt for violating the Consent Decree because, on its face, “the consent decree here does not bind [Appellants] to do or not to do anything, nor does it impose any legal obligations on [Appellants].” Johnson v. Lodge #93 of the Fraternal Order of Police, 393 F.3d 1096, 1107 (10th Cir. 2004).
Fourth, there are no contractual consequences of the Consent Decree for Appellants. “[U]nder Pennsylvania law, a consent decree is an agreement only between parties and does not bind or preclude the claims of non-parties.” Sullivan v. City of Pittsburgh, 811 F.2d 171, 181 (3d Cir. 1987) (citing Sabatine v. Commonwealth, 497 Pa. 453, 442 A.2d 210 (1981)). Appellants are nonparties.
Because the Consent Decree does not impair Appellants’ ability to protect any interest they may have in defending laws like the Community Bill of Rights, the District Court did not abuse its discretion in denying the motion for reconsideration of the denial of the motion to intervene.
II. APPELLANTS LACK STANDING TO CHALLENGE THE CONSENT DECREE
Because Appellants were not permitted to intervene, they did not become parties to this lawsuit. Because Appellants are not parties to this lawsuit, they may not challenge the Consent Decree. See, e.g., Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1113 (3d Cir. 1992) (noting that the Third Circuit dismissed the appeal of a consent decree by attempted intervenors for lack of appellate jurisdiction and citing Pennsylvania v. Rizzo, 530 F.2d 501, 508 (3d Cir. 1976), for the proposition that an “appellant must have been granted permission to intervene in order to appeal merits of case”); cf. Diamond v. Charles, 476 U.S. 54, 63-64, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“By not appealing the judgment below, the State indicated its acceptance of that decision, and its lack of interest in defending its own statute. The State’s general interest may be adverse to the interests of appellees, but its failure to invoke our jurisdiction leaves the Court •without a ‘case’ or ‘controversy’ between [intervenor-]appellees and the State of Illinois.” (footnote omitted)); Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 229 (3d Cir. 2016) (“We conclude that, for purposes of appeal, Appellants were no longer ‘parties’ to the case after they were dismissed without prejudice from Halle’s proceeding. Appellants therefore cannot pursue an appeal from Steven Halle’s individual judgment.” (citation omitted)).
Appellants focus on the fact that we have held that we lacked jurisdiction over an appeal on the merits when an appellant is “properly denied the status of intervenor.” Pennsylvania v. Rizzo, 530 F.2d 501, 508 (3d Cir. 1976) (emphasis added). They argued that because they were improperly denied the right to intervene, these holdings do not apply to them. Because, as we held above, Appellants were not improperly denied the right to intervene, Appellants’ argument fails. We have no appellate jurisdiction to review the Consent Decree.
CONCLUSION
Appellants’ motion to intervene is moot. The District Court’s denial of the motion for reconsideration of the order denying Appellants’ motion to intervene was not an abuse of discretion. Therefore, Appellants are nonparties and lack standing to challenge the Consent Decree. Accordingly, we will affirm the judgment of the District Court relating to the denial of the motion for reconsideration of the denial of intervention and dismiss the remainder of this appeal for lack of jurisdiction.
. "[F]racking[] is a method used to stimulate production of a well. A specially blended liquid is pumped down the well and into a formation under pressure high enough to cause the formation to crack open, forming passages through which oil or gas can flow into the wellbore.” T.W. Phillips Gas & Oil Co. v. Jedlicka, 615 Pa. 199, 42 A.3d 261, 264 n.1 (2012); see also U.S. EPA, Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States 3-4 (2016) (executive summary), http://ofmpub. epa.gov/eims/eimscomm.getfile?p_download_ id=530285.
. On March 26, 2015, the parties filed consents to trial and jurisdiction before a magistrate judge. See Seneca Res. Corp. v. Highland Township, No. 15-60 Erie, 2016 WL 1213605, at *1 n.1 (W.D. Pa. Mar. 29, 2016) ("[T]he parties have voluntarily consented to have a United States Magistrate Judge conduct proceedings in this case, including the entry of a final judgment.”); 28 U.S.C. § 636(c). Because the Magistrate Judge has the full power of the District Court, we refer to the Magistrate Judge as the District Court where appropriate.
. See, e.g., Uma Outka, Intrastate Preemption in the Shifting Energy Sector, 86 U. Colo. L. Rev. 927, 959-60 (2015) (referring to CELDF-sponsored antifracking legislation in Pittsburgh, Pa., Mora, N.M., and Lafayette, Colo.); Catherine J. Iorns Magallanes, Foreword: New Thinking on Sustainability, 13 N.Z. J, Pub. & Int’l L. 1, 12 (2015) (“160 communities in the United States have adopted such rules that have been drafted by the CELDF.... ”).
. Appellants claim that the Ecosystem ' has standing under the Community Bill of Rights. Because of the way this appeal is terminated and because Citizens Advocating a Clean Healthy Environment, Inc., would be a proper intervenor were it to meet the standards under Rule 24(a) of the Federal Rules of Civil Procedure, we do not need to resolve whether an ecosystem can have standing or is a proper party under Rule 17 of the Federal Rules of Civil Procedure. Cf. Hawksbill Sea Turtle v. FEMA, 126 F.3d 461, 466 n.2 (3d Cir. 1997) (“It is not .disputed that the human plaintiffs have standing to sue under the ESA, and therefore we need not consider the standing to sue of the animals named as plaintiffs.”).
. The Community Bill of Rights provided that:
All residents, natural communities and ecosystems in Highland Township possess the right to sustainably access, use, consume, and preserve water drawn from natural'water cycles that provide water necessary to sustain life within the Township.
... All residents, natural communities, and ecosystems in Highland Township possess the right to breathe air untainted by toxins, carcinogens, particulates, and other substances known to cause harm to health.
App.119 (Community Bill of Rights § 2(a)— (b)).
. The relevant portions of the stipulation and consent decree state as follows:
a. Section 3 of the Highland Community Bill Of Rights Ordinance, as amended (Amendment and Revision of Ordinance No. 1-9 of 2013) constitutes an impermissible exercise of Highland’s legislative authority and is therefore invalid and unenforceable;
b. Section 3 of the Highland Community Bill Of Rights Ordinance, as amended (Amendment and Revision of Ordinance No. 1-9 of 2013) is also invalid and unenforceable in that it is de jure exclusionary in seeking to prohibit entirely the exercise of a legitimate and lawful business activity (to-wit, the development of oil and gas resources and the management of related waste materials);
c. Section 4(b) and (c) of the Highland Community Bill Of Rights Ordinance, as amended (Amendment and Revision of Ordinance No. 1-9 of 2013) constitute an impermissible exercise of Highland's legislative authority and are therefore invalid and unenforceable;
d. Sections 5(a) and (b) of the Highland Community Bill Of Rights Ordinance, as amended (Amendment and Revision of Ordinance No. 1-9 of 2013), are unenforceable as preempted by state law;
e. Section 5(a) of the Highland Community Bill Of Rights Ordinance is, on its face, unconstitutional (under both the United States Constitution and the Constitution of the Commonwealth of Pennsylvania);
f. Section 6 of the Highland Community Bill Of Rights Ordinance is, on its face, unconstitutional (under both the United States Constitution and the Constitution of the Commonwealth of Pennsylvania);
g. Section 7 of the Highland Community Bill Of Rights Ordinance is, on its face, unconstitutional (under both the United States Constitution and the Constitution of the Commonwealth of Pennsylvania); ....
App.388-89 (Stipulation and Consent Decree) ¶ 13(a)-(g).
. The Home Rule Charter was apparently passed in a popular vote, 55% to 45%, with 94 citizens turning out. See Katie Weidenboerner, Highland Township Votes in Home Rule Charter, Courier Express (DuBois, Pa.) (Nov. 9, 2016), http://www.thecourierexpress.com/ news/local/highland-township-votes-in-home-rule-charter/article_833142ae-bl55-55fa-8477-5864bde37281.html.
, Were we to reach the merits of the issue as to whether Appellants could intervene to defend the ordinance, we would have serious doubts that the Township of Highland's decision to seek a settlement made them inadequate representatives of the Appellants’ interests. We have repeatedly stated that a party is entitled to settle its lawsuit without inviting intervenors where settlement is the only reasonable course of action. See, e.g., Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1123-24 (3d Cir. 1992) ("The contention that the school officials have not actively litigated this case must be rejected as a basis for finding inadequate representation.... Defendants are fully entitled to choose to negotiate a consent decree rather than litigate the case on the merits.”); Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976) ("Even if the injunction had been characterized as a consent decree, inadequate representation would not be established ipso facto; any case, even the most vigorously defended, may culminate in a consent decree. As the Seventh Circuit has observed, a consent decree may be simply 'the inescapable legal consequence of application of fundamental law to [the] facts. That [intervenors] would have been less prone to agree to the facts and would have taken a different view of the applicable law does not mean that the [defendants] did not adequately represent their interests in the litigation.’ ” (quoting United States v. Bd. of Sch. Comm’rs, 466 F.2d 573, 575 (7th Cir. 1972))).
At oral argument, Appellants’ counsel essentially conceded that the Amended Ordinance was unlawful under existing law:
THE COURT; You would agree, wouldn't you, that there are some portions of the Amended Ordinance here that clearly were unlawful?
COUNSEL; Your Honor, those are the issues that we’d like to litigate before the Court but unfortunately we [UNINTELLIGIBLE]— ■
THE COURT: You think that there’s an arguable position to be taken that there was no preemption in some of the laws here.
COUNSEL; Your Honor, that would be like being in 1907 and arguing against Lochner.
THE COURT; Taking away corporation’s personhood? • ...
COUNSEL: Again, that would be like being in 1900, arguing against separate but equal. So, yes, we’re challenging corporate constitutional rights, making a good faith claim for changing the law.
Oral Arg. at 8:20 (emphasis added).
. Appellants raised the issue that they should' .have been allowed to intervene because the District Court lacked power to adopt the Consent Decree for the first time before us in their reply brief. See Appellants' Reply Br. 8. As such, we need not consider it. See, e.g., Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 139 n.8 (3d Cir. 2017) (explaining that we could ignore an argument raised fleetingly in the district court and for the first time before us in a reply brief). We do so because Appellants’ interest in 'the Consent Decree is an issue of law and their concerns about ultra vires district court action are important.
. For this reason, even if Appellants were parties, they would lack standing to challenge the consent decree. "The general rule is that a nonsettling party has no standing to appeal a consent decree which does not bind him and interferes with no legal relationship between the nonsettling party and the settling parties, even though the nonsettling party may have sustained some economic loss as a result of the consent decree.” Milonas v. Williams, 691 F.2d 931, 944 (10th Cir. 1982) (citing Util. Contractors Ass’n of N.J., Inc. v. Toops, 507 F.2d 83 (3d Cir. 1974)); see also In re Sch. Asbestos Litig., 921 F.2d 1330, 1332 (3d Cir. 1990) ("To establish standing to appeal a settlement, a non-settling defendant may not merely claim an interest in the lawsuit but must show some cognizable prejudice to a legal relationship between it and the settling parties.”).
We have held that intervenors do not need to show Article III standing where a party on the same side has Article III standing, see King v. Governor of N.J., 767 F.3d 216, 245-46 (3d Cir. 2014), cert. denied sub nom. King v. Christie, — U.S. —, 135 S.Ct. 2048, 191 L.Ed.2d 955 (2015), but "an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III,” Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986).
. Therefore, if the consent decree did encroach on Appellants’ rights, they could bring a collateral attack. See Martin v. Wilks, 490 U.S. 755, 763-65, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (holding that allowing collateral attacks by nonparties on consent decrees was a "principle” that was “incorporat[ed]" into the Federal Rules of Civil Procedure), superseded by statute for Title VII purposes as recognized in United States v. City of Detroit, 712 F.3d 925, 933 (6th Cir. 2013); see also United States v. City of New York, 198 F.3d 360, 366 (2d Cir. 1999) ("Those who are not parties to a consent decree are free to challenge the decree and actions taken under it.” (citing Martin, 490 U.S. at 762, 109 S.Ct. 2180)); Interfaith Cmty. Org. Inc. v. PPG Indus., Inc., 702 F.Supp.2d 295, 313 n.22 (D.N.J. 2010) ("It appears the general principle underlying Wilks remains....”).
Crystal Spring Ecosystem; Highland Township Municipal Authority; Citizens Advocating a Clean Healthy Environment, Inc., Appellants
(Pursuant to Rule 12(a) Fed. R. App. P.)
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FERGUSON, Circuit Judge:
The present case arises out of the events and litigation in Yakima County, Washington, surrounding the Hanford Nuclear Reservation (“Hanford”). Pamela Durfey, Paulene Echo Hawk, and Dorothy George appeal the district court’s dismissal of their state medical monitoring tort claims for lack of subject matter jurisdiction, the denial of their motion to remand to state court, and the district court’s consolidation of their claims with the In re Hanford litigation. In re Hanford Nuclear Reservation Litigation, 780 F.Supp. 1551 (E.D.Wash.1991).
The district court concluded that it lacked subject matter jurisdiction to hear plaintiffs’ claims because the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9613(h) (“CERCLA § 113(h)”), bars judicial review of “challenges” to ongoing federal agency “removal” or “remedial” actions as premature. The district court believed that plaintiffs’ medical monitoring claims are “challenges” to the health-related activities being conducted at Hanford by the Agency for Toxic Substances and Disease Registry (“ATSDR”). As a result, the district court held that plaintiffs’ claims cannot be brought until ATSDR completes its work at Hanford. We reverse.
BACKGROUND
Hanford is a U.S., government-owned, contractor-operated, plutonium production site. Hanford opened in 1944 as part of the U.S. war effort to develop an atomic bomb. As a result of the plutonium production at Han-ford, quantities of iodine-131 and other radioactive substances were released into the surrounding areas of eastern Washington.
In May 1989, prior to Hanford’s designation as a Superfund site, the Department of Energy, the Environmental Protection Agency, and the Washington State Department of Ecology entered into an agreement establishing the agencies’ intent to undertake a comprehensive program to clean up the Hanford sites. The Department of Energy subsequently released a report in 1990 documenting the past releases of radioactive substances from Hanford. Following the publication of the Department of Energy report, five separate class action suits were filed against the current and former operating contractors of Hanford. Plaintiffs were not a party to any of these suits. In 1991 the U.S. District Court for the Eastern District of Washington consolidated the five suits into the In re Hanford litigation. In re Hanford, 780 F.Supp. at 1555 n. 1 (consolidating claims brought under 42 U.S.C. § 2014(hh)).
The consolidated In re Hanford litigation involved a variety of claims ranging from personal injury to property damage and business losses. Included among the In re Han-ford claims were claims for the tort of medical monitoring. In re Hanford, 780 F.Supp. at 1562 n. 17 (explaining that the medical monitoring claims were brought under the alternative legal theories of the common law tort of medical monitoring and the liability provisions of 42 U.S.C. § 9607(a) (“CERCLA § 107(a)”)). The district court concluded that medical monitoring claims are premature “challenges” to an ongoing federal agency response provided for by 42 U.S.C. § 9604(i) (“CERCLA § 104(i)”) and dismissed all the medical monitoring claims for lack of subject matter jurisdiction pursuant to CERCLA § 113(h). In re Hanford, 780 F.Supp. at 1564-65.
Following the district court’s dismissal of the In re Hanford medical monitoring claims, plaintiffs filed this class action suit for relief in the Superior Court for Yakima County, Washington, in July 1993. Plaintiffs allege only the common law tort of medical monitoring.
The defendants removed the action to the federal district court in accord with the provisions of the Price-Anderson Act. 42 U.S.C. §§ 2210(n)(2), 2014(hh). Upon removal, the district court consolidated plaintiffs’ cause of action with the In re Hanford litigation. Based on its earlier rulings, the district court dismissed plaintiffs’ medical monitoring claims for lack of subject matter jurisdiction as premature “challenges” to an ongoing federal agency response. 42 U.S.C. § 9613(h). In addition, the district court denied remand of plaintiffs’ claims to the state court based on the Price-Anderson Act. 42 U.S.C. § 2210(n)(2). Plaintiffs assert that 28 U.S.C. § 1447(c) requires a federal district court which finds that it lacks subject matter jurisdiction over a removed action to remand that action to state court. We need not reach the latter question as the district court has subject matter jurisdiction over plaintiffs’ medical monitoring claims.
DISCUSSION
We have jurisdiction over the present appeal pursuant to 28 U.S.C. § 1291. Huene v. United States, 743 F.2d 703, 705 (9th Cir.1984) (holding that where judgment resolves only one of several consolidated eases, appeal is proper upon certification pursuant to Fed. R.Civ.P. 54(b)). We review the question of subject matter jurisdiction de novo. Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir.1994). All of the district court’s factual findings on jurisdictional issues must be accepted as true unless they are clearly erroneous. Id.
Plaintiffs argue that medical monitoring is not a “response” cost under CERCLA § 107(a)(4)(B). This issue is critical to plaintiffs’ claims as CERCLA defines “response” as a “... removal ... [or] remedial action.” 42 U.S.C. § 9601(25). Because CERCLA § 113(h) bars judicial review of “challenges” to federal “removal” or “remedial” actions, plaintiffs’ claims would be barred until the Hanford cleanup was complete if medical monitoring were found to be a “response” cost under CERCLA § 107(a)(4)(B).
Defendants contend that the ATSDR’s medical surveillance and health-related activities at Hanford are “removal” or “remedial” actions which will provide the very medical monitoring that plaintiffs seek to secure through their class action suit. The district court accepted defendants’ arguments and stated that plaintiffs’ medical monitoring claims “challenge” a “removal” or “remedial” action under CERCLA. As a result, the district court held that it was barred by CERCLA § 113(h) from exercising jurisdiction over plaintiffs’ claims. However, when the district court made its original decision in 1991, this circuit had not yet ruled on whether medical monitoring constitutes a “response” cost within the meaning of CERCLA § 107(a)(4)(B).
CERCLA, as amended by the 1986 Superfund Amendments and Reauthorization Act (“SARA”), was enacted to facilitate the cleanup of hazardous waste sites around the country. In order to accomplish this purpose, CERCLA creates administrative mechanisms to respond to the dangers posed by hazardous waste sites and also establishes the respective rights and duties of governmental entities and private parties involved in the cleanups. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1533 (10th Cir.1992) (citations omitted). At issue in this appeal are CERCLA provisions § 113(h), which is intended to prevent impeding cleanup activities with premature challenges to those activities, and § 107(a), which is intended to expedite cleanups by shifting the liability for cleanup costs to responsible parties.
CERCLA § 113(h) divests a district court of jurisdiction over actions deemed to be premature challenges to ongoing cleanup activities. Section 113(h) provides in critical part that:
No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 ... or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 960k of this title ...
42 U.S.C. § 9613(h) (emphasis added). Thus, if medical monitoring were a “removal” or “remedial” action, then medical monitoring claims would “challenge” “removal” or “remedial” actions and would be barred by CERCLA § 113(h) until completion of the cleanup activities.
CERCLA § 107(a) provides that responsible parties may be sued for “any other necessary costs of response ...” 42 U.S.C. § 9607(a)(4)(B). CERCLA does not define “any other necessary costs of response” but defines “response” as meaning a “removal ... [or] remedial action”. 42 U.S.C. § 9601(25). Intended as interim solutions, “removal” is defined in critical part as:
the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release ...
42 U.S.C. § 9601(23) (emphasis added). “Remedial actions”, while intended as permanent solutions, are similarly defined as:
those actions consistent with permanent remedy taken instead of or in addition to removal actions ... The term includes, but is not limited to ... any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment ...
42 U.S.C. § 9601(24) (emphasis added).
The district court relied on the latter language to conclude that medical monitoring is a “response” cost. However, in Price v. U.S. Navy, 39 F.3d 1011, 1016-17 (9th Cir.1994), this court held that medical monitoring costs are not “response” costs under CERCLA. This court, relying on the Tenth Circuit analysis in Daigle, reasoned that:
the context in which the monitoring” and “health and welfare” language appears is directed at containing and cleaning up hazardous substance releases ... The specific examples in § 9601(23) are all designed to prevent or mitigate damage to public health by preventing contact between the spreading contaminants and the public. Monitoring long-term health has nothing to do with preventing such contact.
Price, 39 F.3d at 1016-17. In addition, this court reviewed the legislative history behind CERCLA and found that “Congress intentionally deleted all personal rights to recovery of medical expenses from CERCLA,” and that ATSDR activities are reimbursed separately from the payment of “response” costs. Id. at 1017 (quoting Daigle, 972 F.2d at 1536-37).
Defendants argue that ATSDR is likely to perform medical monitoring sometime in the future, prior to the completion of the Han-ford cleanup. While ATSDR is statutorily required to perform a “health assessment” at every Superfund site in the United States, 42 U.S.C. § 9604(i)(6)(A), ATSDR is only required to administer a “health surveillance” (medical monitoring) program if the ATSDR Administrator has determined that there is a significantly increased risk for an affected population. 42 U.S.C. § 9604(i)(9). While defendants may wish to rely on ATSDR’s future activities at Hanford, Congress has not required potentially injured parties to do so. CERCLA contains no reference to recovering personal medical expenses.
In addition, the government is able to recover costs incurred by the ATSDR under a separate cause of action. 42 U.S.C. § 9607(a)(4)(D). In light of these factors, it is clear that medical monitoring costs are not “response” costs under CERCLA. Price 39 F.3d at 1017.
Despite our conclusion that medical monitoring is not a “response” cost, defendants would have us rely on our recent decision in McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir.1995), to conclude that plaintiffs’ medical monitoring claims, nevertheless, “challenge” the “response” activities at Hanford. Defendants rely on' the McClellan Court’s finding that “challenge” should be read to include those situations in which the lawsuit is “directly related to the goals of the cleanup” in issue. McClellan, 47 F.3d at 330. While defendants are correct in pointing out that one of the goals of the Hanford cleanup is establishing the effects on and dangers to human health posed by Hanford, we do not read this as directly related to the goal of monitoring individuals with a demonstrated increased risk of injury to ensure the timely detection of hazardous waste induced illness. McClellan is not inconsistent with our present holding.
Because plaintiffs’ medical monitoring claims do not “challenge” any federal “removal” or “remedial” action, they are not barred by CERCLA § 113(h), and the district court has jurisdiction to hear them. The district court erred in dismissing plaintiffs’ claims for lack of subject matter jurisdiction. Consolidation with the other In re Hanford litigation was, however, appropriate. We reverse and remand to the district court for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
. Medical monitoring is a recently recognized tort providing damages or equitable relief to plaintiffs who have yet to suffer a cognizable toxic tort injury, but who are able to demonstrate that they face an increased risk of such an injury as a result of a defendant's actions. See, e.g., In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 852 (3rd Cir.1990) (recognizing the weight of authority behind adopting a common law tort of medical monitoring), cert. denied, 499 U.S. 961, 111 S.Ct. 1584, 113 L.Ed.2d 649 (1991).
. CERCLA requires the President to create a National Priorities List establishing the order of priority for the cleanup of national hazardous waste sites. 42 U.S.C. § 9605(a)(8)(B). Adding a site to the National Priorities List designates it as a Superfund site. Four sites at Hanford were designated as Superfund sites in September 1989.
. The Price-Anderson Act provides that:
With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place ... shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon a motion of the defendant or of the Commission, or the Secretary, as appropriate, any such action pending in any State court ... or United States district court shall be removed or transferred to the United States district court having venue under this subsection ... 42 U.S.C. § 2210(n)(2). 42 U.S.C. § 2014(hh) defines "public liability action,” as used in § 2210, as "any suit asserting public liability.”
. Defendants-appellants' motion to supplement the record is denied.
. To date, ATSDR has yet to undertake any medical monitoring activities anywhere in the country. Appellee’s Oral Argument, Durfey v. DuPont, No. 94-35371 (9th Cir. May 4, 1995).
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SCHROEDER, Circuit Judge:
The City of Tenakee Springs and native Alaskan subsistence users appeal the district court’s grant of summary judgment in favor of the government and denial of permanent injunctive relief. The underlying action is appellants’ challenge to the 10-volume Supplemental Environmental Impact Statement (SEIS) released by the U.S. Forest Service in November 1989 concerning timber harvest in the Alaska Pulp Company’s (APC) contract sale area in the Ton-gass National Forest in southeastern Alaska.
The litigation arises out of the 50-year timber sale contract which the Forest Service and APC entered into in 1956 for logging in the Tongass National Forest. Since 1971, the Service has prepared operating plans for successive five-year periods, each supported by an environmental impact statement (EIS) as required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA).
We have seen this matter twice before. This dispute began with the City’s challenge to the EIS for the 1981-86 operating period. In City of Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir.1985) (Tenak-ee I), this court reversed the district court’s denial of the city’s motion for a preliminary injunction. Our opinion in Te-nakee I contains a discussion of the APC contract and the need for a site specific EIS for each operating plan. Last year, in City of Tenakee Springs v. Clough, 915 F.2d 1308 (9th Cir.1990) (Tenakee II), this court reversed the district court’s denial of the City and Hanlon’s motion for a preliminary injunction in their challenge to the 1989 SEIS prepared for the 1981-1986 and 1986-1990 operating periods. Our opinion in Tenakee II contains a discussion of the factual and procedural background leading to that point in the litigation. We found that appellants had raised several serious legal questions concerning the adequacy of the SEIS’s cumulative impact analysis and the range of alternatives considered. Accordingly, we remanded for further proceedings and ordered that the injunction entered by this court pending appeal continue during the district court’s consideration of the merits of plaintiffs’ claims.
After hearing further evidence, the district court subsequently denied the City and Hanlon’s motion for summary judgment, granted the Service’s motion for summary judgment, and vacated the preliminary injunction. The City and Hanlon timely appealed. On June 4, 1991, the district court entered a 10-day injunction pending appeal so that appellants could request such relief from this court. After extensive briefing and oral argument, we continued the injunction pending appeal, as modified to allow APC access to an additional 44 metric million board feet (MMBF) of timber.
We now deal with whether to affirm or reverse the district court’s denial of a permanent injunction. The question on the merits up to now has been whether the Forest Service complied with environmental laws when it prepared the SEIS in 1989 to assess the environmental effects of compliance with the contract as then written. Assuming the answer to that question is no, the controlling question becomes whether the equities flowing from an inadequately prepared 1989 SEIS warrant imposition of permanent injunctive relief today. We conclude the answer to this question is also no.
Our conclusion is based on the fact that there has been significant intervening legislation since we issued our 1984 and 1990 opinions ordering preliminary injunctive relief in Tenakee I and II. In November 1990, Congress passed the Tongass Timber Reform Act (“TTRA”). Pub.L. No. 101-626, 104 Stat. 4426-4435 (Nov. 28, 1990). In doing so, Congress took a hard look at many of the concerns we ourselves expressed about this long-term contract in Tenakee II. 915 F.2d at 1311-12.
In Tenakee II we were concerned about the government’s refusal to consider the environmental effects of harvesting the totality of the contract requirements, its refusal to consider any modification of the contract requirements, and its lack of attention to the cumulative impact this totality of harvest would have on subsistence users pursuant to section 810(a) of the Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3120(a) (ANILCA). Id. at 1311-13. With the passage of the TTRA, however, many of our concerns have been addressed. Congress has reduced the volume to be harvested, expanded the non-harvestable wilderness areas, and has ordered the government to prepare an extensive study of the environmental effects of the contract requirements in order to better determine whether and how further to modify the contract. See e.g. Pub.L. No. 101-626, § 301, § 508, § 202, 104 Stat. 4428-4432.
Moreover, the methodology for ensuring future compliance with environmental laws has been changed. The TTRA provides that subsequent cutting will be pursuant to the requirements now imposed for environmental study of individual sales rather than on the basis of the five-year plans the law required in 1989. See Pub.L. No. 101-626, § 301(c), 104 Stat. 4430-4431. These modifications, combined with the Act’s requirement that the Secretary of Agriculture assess whether the government can both comply with the provisions of applicable environmental laws and meet the contract volume requirements, cause us to conclude that the long-term cumulative carryover effects we feared would result from the five-year allocation methodology we confronted in Tenakee II have been eliminated.
Congress enacted the TTRA in an effort to remedy the conflicts inherent in the Forest Service’s dual role as party to the disputed contracts and as the agency charged with managing the competing uses within the contract area. The TTRA mandates that the Forest Service must plan in a way that will fulfill both its contractual commitments and its statutorily mandated environmental commitments, not one at the expense of the other. Specifically, Congress has replaced the contract driven planning process underlying the SEIS at issue here, with a new methodology designed to ensure that timber sale planning within the Tongass pursuant to APC’s long term contract will comply with all applicable environmental laws and standards.
Thus, with the passage of the TTRA in November 1990, there is no longer the same threat of irreparable harm resulting from the long-term carryover effects of logging carried out pursuant to the procedurally suspect, contract driven, 1989 SEIS. Any such threat has been dissipated through Congress’ decisions to step in to conduct its own study, to modify the contract and to mandate further intensive agency review. Accordingly, although perceived procedural deficiencies in the SEIS at issue caused us to pause and remand this matter to the district court for further proceedings in Tenakee II, these same inadequacies have now been addressed by Congress and so, will not support the imposition of permanent injunctive relief today. See Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987) citing (Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982) (no mechanical obligation to grant an injunction for every violation of law)).
Under these circumstances, we have no need to address the merits of appellants’ claims that the 1989 SEIS was inadequate when prepared. There would be little or no purpose served in requiring the Forest Service to redo the 1989 SEIS in order to consider the very issues Congress itself considered in enacting the TTRA. Plaintiffs are no doubt carefully monitoring the Forest Service’s compliance with the TTRA and are capable of filing new suits based upon intervening circumstances. The Forest Service’s management of this forest also remains subject to the requirements of NEPA, the Alaska Natural Interest Lands Conservation Act (ANILCA) 16 U.S.C. § 3120, and the other applicable environmental laws in effect prior to the enactment of the TTRA. Failure to comply with the newly-enacted requirements of the TTRA, like any violation of a statute, could support injunctive relief in the future if the equities otherwise favor such relief.
For these reasons, the judgment of the district court denying permanent injunctive relief is AFFIRMED. Each party shall bear its own costs on appeal.
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WILLIAM A. NORRIS, Circuit Judge,
dissenting:
As the majority points out, this is not the first time we have seen this case. In City of Tenakee Springs v. Clough, 915 F.2d 1308 (9th Cir.1990) (Tenakee II), we held that plaintiffs were entitled to a preliminary injunction because they had demonstrated the possibility of irreparable harm and the likelihood that they would succeed on the merits. Today, the majority holds that we need not reach the merits because the equities do not favor permanent injunc-tive relief. I disagree. It is sometimes said of judges that we cannot see the forest for the trees. In this case, it is the trees that the majority overlooks by focusing improperly on the forest as a whole.
The majority’s decision rests entirely on Congress’ enactment in 1990 of the Ton-gass Timber Reform Act (“TTRA”). In considering the equities, however, the majority errs by confusing the effect of the TTRA on the entire Tongass National Forest with the effect of the TTRA on the particular tracts of land that are the subject of this lawsuit. The majority notes that the TTRA will reduce the volume of timber to be harvested, expand wilderness areas, and commission a study of environmental effects. However, none of these changes will affect the land currently designated for logging under the 1989 Supplemental Environmental Impact Statement (“SEIS”).
The majority also notes that the TTRA will prevent long-term carryovers in the future. However, the same provision that bars future carryovers will force the Alaska Pulp Corporation (“APC”) to harvest all timber currently designated under the allegedly inadequate SEIS within three years if it hopes to receive further offerings of timber. TTRA § 301(c)(3). The one major effect the TTRA will have on the particular tracts at issue here is to ensure that a large number of the trees on them will be logged in a relatively short period of time. If anything, this tips the equities in favor of the plaintiffs and makes it even more important that we address their claims on the merits.
We discussed plaintiffs’ claims at length in Tenakee II. The 1989 SEIS authorizes the Forest Service to make available 696 metric million board feet (MMBF) for the 1986-90 operating period. However, because APC harvested an average of only 85 MMBF in each of the first four years, the SEIS in effect made available more than 350 MMBF for the period November 1989 through December 1990. Tenakee II, 915 F.2d at 1311.
Plaintiffs contend that the Forest Service did not consider reasonable alternatives to making such a large amount of timber available in a single year. Indeed, they argue that the government’s contract with APC did not require the government to offer 700 MMBF during the 1986-90 period. In Tenakee II, we expressed our view that plaintiffs’ “interpretation of the language of the contract is not unreasonable.” 915 F.2d at 1311. “[I]t is not at all clear,” we said, “that the contract requires the government to make available to APC hundreds of millions more board feet than it could possibly cut during the five-year period.” Id.
Even if the contract with APC does require that 700 MMBF be made available during the 1986-90 period, plaintiffs argue that the Forest Service should have considered cancelling or modifying the contract. We noted in Tenakee II that the Forest Service’s regulations permit it to cancel or modify a contract where it would result in serious environmental degradation or resource damage. Id. at 1312. The SEIS failed to consider not only this alternative but also the alternative of modifying the contract by congressional enactment. “[T]he fact that an alternative requires legislative action does not automatically justify excluding it from an EIS.” City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 197, 98 L.Ed.2d 148 (1987).
Plaintiffs also contend that the 1989 SEIS is deficient because it fails to consider cumulative impacts adequately. The SEIS considers the impact of logging on environmental and subsistence uses in each of four Analysis Areas (“AA’s”) but does not consider the cumulative impact of logging in all four areas. To give one example, the Village of Hoonah is divided between two AA’s. One part of the SEIS addresses the impact on Hoonah of losing 214 deer because of logging in one AA. Another part of the SEIS addresses the impact on Hoo-nah of losing 190 deer because of logging in a second AA. Nowhere, however, does the SEIS consider the cumulative impact on Hoonah of losing 404 deer. We noted in Tenakee II that plaintiffs had “raised serious questions concerning the adequacy of the EIS with regard to cumulative impact analysis required by both NEPA and AN-ILCA.” 915 F.2d at 1313.
The majority claims that the inadequacies of the 1989 SEIS were addressed by Congress in passing the TTRA. However, nothing in the TTRA or its legislative history supports the assumption that Congress intended to validate retroactively the 1989 SEIS or exempt it from complying with NEPA and ANILCA.
I respectfully dissent.
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THACKER, Circuit Judge:
In this case, we address petitions seeking review of two federal agency decisions. The first is the Bureau of Land Management ("BLM")'s decision granting a right of way through federal land for construction and operation of a pipeline proposed by Mountain Valley Pipeline, LLC ("MVP"). The second is the United States Forest Service ("Forest Service")'s decision to amend the Jefferson National Forest Land Resource Management Plan to accommodate the right of way and pipeline construction. Sierra Club, Inc.; Appalachian Voices; Wild Virginia, Inc.; the Wilderness Society; Preserve Craig, Inc.; and Save Monroe, Inc. (collectively, "Petitioners") claim that by these decisions, the federal agencies violated the National Environmental Policy Act ("NEPA"), the Mineral Leasing Act ("MLA"), and the National Forest Management Act ("NFMA").
After careful review, we conclude that aspects of the Forest Service's decision fail to comply with NEPA and the NFMA. As more fully explained below, we grant the petition challenging the Forest Service's decision and vacate that decision. We also conclude that the BLM failed to acknowledge its obligations under the MLA, and therefore, we also grant the petition challenging the BLM decision and vacate that decision. We remand to the respective agencies for further proceedings consistent with this opinion.
I.
A.
The Pipeline Project and FERC
MVP plans to construct, operate, and maintain approximately 303.5 miles of new underground, 42-inch diameter pipeline extending from Wetzel County, West Virginia, to Pittsylvania County, Virginia. The trench for the pipeline will be at least 54 inches wide and 5.5 to 9 feet deep. Construction will involve "remov[ing] trees, shrubs, brush, roots, and large rocks" and will initially require a 75-foot to 125-foot right of way for construction purposes, and a subsequent 50-foot right of way for at least 30 years to accommodate the pipeline's operation. J.A. 102-03, 107.
On October 13, 2017, the Federal Energy Regulatory Commission ("FERC") issued a Certificate of Public Convenience and Necessity for MVP's pipeline project ("Certificate"). Pursuant to the Natural Gas Act ("NGA"), a natural gas company is not permitted to undertake construction of a pipeline unless FERC first issues a Certificate authorizing such construction. See 15 U.S.C. § 717f(c)(1)(A). Before doing so, in most cases FERC "shall set the matter for hearing and shall give such reasonable notice of the hearing thereon to all interested persons as in its judgment may be necessary under [FERC's] rules and regulations." Id . § 717f(c)(1)(B). FERC also "shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require." Id . § 717f(e). Petitioners do not challenge FERC's issuance of the Certificate in this case.
FERC was also required to issue an Environmental Impact Statement ("EIS"). Pursuant to NEPA, when a federal agency proposes to take a "major Federal action[ ] significantly affecting the quality of the human environment," the agency must prepare a detailed EIS describing the likely environmental effects, "adverse environmental effects which cannot be avoided," and potential alternatives to the proposal. 42 U.S.C. § 4332(C). Multiple agencies may cooperate to issue an EIS, but a "lead agency" is usually designated. 7 C.F.R. § 3407.11(a). Where an interstate gas pipeline is involved, FERC acts as the lead NEPA agency. See 15 U.S.C. § 717n(b)(1) ; see also EarthReports, Inc. v. FERC , 828 F.3d 949, 953 (D.C. Cir. 2016). Here, the BLM and the Forest Service served as cooperating agencies and ultimately adopted the EIS.
B.
The Pipeline Project and the BLM
It is not enough, however, that FERC issued a Certificate and an EIS. Because portions of the proposed pipeline route cross federally owned lands, MVP was also required to obtain rights of way and temporary use permits from the federal government to construct and operate the pipeline on those lands. The proposed right of way will cross land managed by two different agencies-the Forest Service (3.6 miles or approximately 83 acres of the Jefferson National Forest in West Virginia and Virginia) and the Army Corps of Engineers (60 feet of the Weston and Gauley Bridge Turnpike Trail in Braxton County, West Virginia)-which means the Department of the Interior is responsible for issuing rights of way and attendant permits. See 30 U.S.C. § 185(c)(2) ("Where the surface of the Federal lands involved is administered by ... two or more Federal agencies, the Secretary [of the Interior] is authorized, after consultation with the agencies involved, to grant or renew rights-of-way or permits through the Federal lands involved."). In situations involving oil and gas pipeline rights of way, the Department of the Interior has delegated that authority to the BLM. See 36 C.F.R. § 251.54(b)(3). Importantly, the BLM must have the concurrence of the Forest Service and the Army Corps of Engineers in order to grant the necessary rights of way or permits. See 30 U.S.C. § 185(c)(2) ; 43 C.F.R. § 2884.26.
On December 20, 2017-upon review of the pertinent regulations, FERC's EIS, and public comments, and with the concurrence of the Forest Service and the Corps of Engineers-the BLM issued a Rule of Decision ("ROD") granting a 30 year, 50-foot operational right of way and associated temporary use permits across 3.6 miles of the Jefferson National Forest. The BLM explicitly adopted the EIS and "prepared th[e] ROD based on information contained" therein. J.A. 574.
C.
The Pipeline Project and the Forest Service
In addition to the Certificate, EIS, and right of way, MVP was also required to ensure compliance with a Land Resource Management Plan governing the Jefferson National Forest (the "Jefferson Forest Plan"). Pursuant to the NFMA, any plans, permits, or contracts for use of the Jefferson National Forest "shall be consistent with" the Jefferson Forest Plan. 16 U.S.C. § 1604(i). Here, it is undisputed that the pipeline project, as proposed, is not consistent with certain aspects of that plan. See J.A. 1280 (Forest Service ROD: "[A]mendment [to the Jefferson Forest Plan] is needed because the MVP Project cannot achieve several Forest Plan standards ...."). In such a case, the Forest Service has four options:
(1) modify the proposed project to make it consistent with the Forest Plan; (2) reject the proposal; (3) amend the Forest Plan so that the project would be consistent with the plan as amended; or (4) amend the Forest Plan simultaneously with the approval of the project so the project would be consistent with the plan as amended[.] [Such amendments] may be limited to apply only to the project.
J.A. 1271 (citing 36 C.F.R. § 219.15(c) (offering these four options if "a proposed project ... would not be consistent with the application plan components") ). In its ROD filed on December 1, 2017, the Forest Service decided it would select option four above and amend the Jefferson Forest Plan such that the MVP project would be consistent with that plan, but those amendments would only apply to the MVP project.
D.
The Pipeline Project and Review of Agency Decisions
Petitioners seek review of the BLM and Forest Service RODs, and we possess jurisdiction to review them pursuant to the Administrative Procedure Act, see 5 U.S.C. §§ 701 - 06, and the NGA, see 15 U.S.C. § 717r(d)(1) ("The United States Court of Appeals for the circuit in which a [natural gas] facility ... is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a Federal agency ... to issue, condition, or deny any permit, license, concurrence, or approval ... required under Federal law ....").
II.
We may " 'hold unlawful and set aside [a federal] agency action' for certain specified reasons, including whenever the challenged act is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.' "
Friends of Back Bay v. U.S. Army Corps of Eng'rs , 681 F.3d 581, 586-87 (4th Cir. 2012) (quoting 5 U.S.C. § 706(2)(A) ).
An agency's decision is arbitrary and capricious if the agency relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Defs. of Wildlife v. N.C. Dep't of Transp. , 762 F.3d 374, 396 (4th Cir. 2014) (quoting Motor Vehicle Mnfs. Ass'n v. State Farm Mut. Auto. Ins. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ).
III.
Petitioners raise a host of alleged violations of NEPA, the NFMA, and the MLA. We address each of these Acts and alleged violations in turn.
A.
The National Environmental Policy Act
Congress enacted NEPA, in part, "to reduce or eliminate environmental damage." Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). "NEPA itself does not mandate particular results in order to accomplish these ends," but rather, "imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Id . at 756-57, 124 S.Ct. 2204 (internal quotation marks omitted). NEPA's procedures require that agencies "take a hard look at environmental consequences" and "provide for broad dissemination of relevant environmental information." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (internal quotation marks omitted).
As explained above, FERC, as lead agency for natural gas pipeline projects, issued the EIS. Nonetheless, the Forest Service and the BLM may adopt FERC's EIS, but only if the EIS "meets the standards for an adequate statement" under pertinent regulations, 40 C.F.R. § 1506.3(a), and only if the agencies undertake "an independent review of the statement" and determine that their "comments and suggestions have been satisfied," id . § 1506.3(c) ; see also Hughes River Watershed Conservancy v. Glickman , 81 F.3d 437, 445 & n.6 (4th Cir. 1996).
1.
Erosion and Sedimentation
We begin with Petitioners' argument that the Forest Service violated NEPA by adopting and relying upon the EIS's analysis of erosion and sedimentation effects in the Jefferson National Forest. See, e.g ., J.A. 1269 (Forest Service ROD "adopt[ing] the environmental analysis prepared by FERC"); id . at 1274 ("All design features and mitigation measures described in the [ ]EIS that are applicable to N[ational] F[orest] S[ervice] land are incorporated by reference into [the ROD]."). Specifically, Petitioners contend that the "EIS is invalid[.] [It] fails to take the required hard look at impacts within Jefferson National Forest." Pet'rs' Br. 2.
a.
The Hydrologic Report
In assessing the impacts of erosion and sedimentation that would occur as a result of pipeline construction and operation in the Jefferson National Forest, FERC relied on a report entitled "Hydrologic Analysis of Sedimentation," see J.A. 234-36, which was prepared by MVP and attached to the EIS, see id. at 297-327 (Appendix O-3) (the "Hydrologic Report").
There were three drafts of the Hydrologic Report. The first was completed on June 7, 2016, and released to the public on July 25, 2016. See J.A. 1311-26. Although that report observed that pipeline construction in the Jefferson National Forest "has potential to introduce temporary excess sediment into waterways ... which may result in changes to water quality and potentially temporarily impact aquatic biota," id . at 1313, it also noted that the results in the analysis "represent[ed] a worst case scenario" because the first draft did not address erosion and sediment control measures or best management practices ("BMPs") that would reduce sedimentation effects, id . at 1324. The Forest Service promptly filed comments to the first draft on August 16, 2016. One of its main concerns was that the draft "treats the [sedimentation] disturbance as a single-year occurrence." Id . at 1330. It asked MVP to "estimate when (if ever) sediment yields return to pre-disturbance levels." Id .
MVP then submitted a second draft of the Hydrologic Report on March 3, 2017. See J.A. 297-327. It addressed the Forest Service's concern and explained that sediment yields would reach a "new sediment equilibrium" within approximately four to five years from the start of the project, which for "the majority of streams" would represent one percent or less increase in sedimentation load over baseline conditions. Id . at 323. But it also predicted a new sediment equilibrium in excess of 10 percent over baseline for "several streams within the New River drainage." Id .
The second draft also considered BMPs and containment measures such as sediment basins, traps, and barriers, and it attempted to determine a proper estimate of reduction in sediment load expected from those measures. It explained that "performance estimates vary widely among studies with some estimates as low as 55 percent ... [and some] as high as 99 percent." J.A. 310. The second draft of the report also cited to a 2007 study from the Environmental Protection Agency ("EPA"), which concluded that with the use of sediment basins, "annual average sediment reductions ranged from 77 to 93 percent." Id . The second draft cited still another study, a 2014 Master's thesis examining sediment barriers "evaluated containment at a variety of slopes and rainfall events and found that overall average projected performance efficiency ranged from 48 to 87 percent with a mean and median of 79 and 86 percent, respectively." Id . at 311. In light of this data, the second draft concluded that 79% containment would be a proper figure to use "to model the benefits of erosion and sediment control practices" expected for the pipeline project. Id .
The second draft also grappled with setting a proper exceedance threshold for impact of sedimentation on waterbodies. Ultimately, it decided to utilize a "commonly used impact threshold" of 10% "to assess potential changes associated with sedimentation." J.A. 314-15. It then delineated streams and downstream waterbodies within the vicinity of the pipeline route with expected sediment loads or sediment increases of "10 percent or greater." Id. at 319, 322. Initially, the Forest Service expressed concern with this analysis, especially with regard to Threatened and Endangered Species ("TES"). At an April 6, 2017 meeting with consultants who composed the report, Forest Service officials expressed concern that "organisms respond differently to increases in sedimentation, and a 10% impact threshold to determine when impacts would occur is likely not relevant." Id . at 1357-58.
The Forest Service filed comments to the second draft on April 25, 2017, and conveyed apprehension with both the 79% and 10% figures. It explained:
• "Since many of the literature citations [offered in the second draft] are laboratory based and proper installation is widely understood in the industry to be a limiting factor for effectiveness in the field, [79%] is a vast overestimate of containment. It is more appropriate to err on the side of the worst case scenario, rather than the best case. Update the analysis to reflect a ... factor, equal to or less than 48% containment." J.A. 1361.
• "The commonly used threshold of 10% may be a valid assumption for [areas that] meet[ ] water quality standards or do not contain sensitive aquatic biota. However, in downstream areas where TES aquatic species are present, it is important to further evaluate cumulative impacts less than 10% increase in sediment load, particularly if construction may coincide with low flow conditions. ... Update the analysis to include cumulative effects delineation for Stony Creek and Craig Creek [both of which contain TES], and track updates (where appropriate) in the tables and figures." J.A. 1362. The Forest Service also explained, "If there are impacts to sensitive species the F[orest] S[ervice] must analyze the significance of adverse effects on the populations, its habitat, and on the viability of the species as a whole." Id .
After the Forest Service filed these comments, representatives of the Forest Service and MVP met on May 9, 2017, to discuss the Forest Service's concerns. During that meeting, MVP representatives expressed "concern[ ] that lowering the containment value from 79% to 48% ... would have ramifications for the entire project analysis and would not accurately reflect the work that MVP has already done." J.A. 1363 (emphasis supplied). A representative from Environmental Solutions & Innovations, the company that completed the Hydrologic Report, explained that "the 79% containment figure was based on a field test thesis paper study," and thus, was not strictly laboratory based. Id .
In turn, the Forest Service urged MVP to provide "additional supporting documentation for how MVP came up with their model assumptions, in particular containment efficiency." J.A. 1363. One of the Forest Service officials "stressed" that "good plans aren't enough and must be bolstered by consistent monitoring and accurate implementation." Id . at 1364.
On June 21, 2017, MVP responded to the Forest Service's concerns with the second draft of the Hydrologic Report, and submitted a third and final Hydrologic Report. See J.A. 1374-81 (response to comments), 1384-1420 (final draft), 1422-37 (appendix with methods used in final analysis). As to the Forest Service's sedimentation concerns, MVP sent the Forest Service copies of the following studies: The Performance Evaluation of Two Silt Fence Geosynthetic Fabrics During and After Rainfall Event , the 2014 Master's thesis mentioned above by Gregg Steven Dubinski; a turbidity monitoring study completed by the United States Geological Survey; details regarding site specific erosion control measures along Craig Creek; and "additional details supporting various aspects of the analysis." J.A. 1377-78. It also responded to the Forest Service comments as follows:
• The 79% containment value: The studies provided to the Forest Service "use both field and laboratory investigations ... to provide a range of efficiencies that are reasonably attainable. The 79% containment is not the best-case scenario, but rather the mean reported value for both silt fences and compost filter socks, two predominant controls proposed to be used on the [pipeline right of way]." J.A. 1378.
• The 10% sedimentation threshold value: The Hydrologic Report "explains that no nationally accepted sedimentation standard or exceedance threshold for sediment is available. The level of 10 percent was chosen because it was a commonly used impact threshold for sediment metrics in a review conducted by the [EPA]. Additional detail is provided in Section 2.6 of the [Hydrologic Report]." J.A. 1381. Section 2.6 of the third Hydrologic Report, in turn, contains a soil loss and sediment delivery analysis, and explains that "[f]rom a sensitive-species perspective, a 10 percent increase over background would likely be within the normal variance experienced in a stream system" and "natural variation in streams is relatively high"; thus, "detecting sediment increases in streams is fairly difficult." Id . at 1405.
The very next day, June 22, 2017, FERC released the EIS, which incorporated and relied upon the second draft of the Hydrologic Report. Specifically, the EIS stated the following:
• In the commentary process, the Forest Service expressed concern "regarding the potential for increased sedimentation caused by erosion of exposed soil ... to affect the waterbodies crossed by the [pipeline] within the Jefferson National Forest and impact downstream resources." J.A. 234.
• To address these concerns, MVP "commissioned a sedimentation model to assess the extent of sedimentation that could occur during construction within [certain] subwatersheds that intersect the Jefferson National Forest boundaries and the project area." J.A. 234-35.
• This "model" resulted in the conclusion that catchments in certain subwatersheds "would likely experience increases in sediment yield over baseline conditions during construction, restoration, and operation." J.A. 235. Such sedimentation "would likely be transported into downstream waterbodies." Id .
• The model also indicated that "construction could increase sedimentation, when accounting for [MVP's] erosion and sediment control methods, by more than 10 percent along sections of Craig Creek and [certain other headwater streams and tributaries, and subwatersheds]." J.A. 235. Impacts on the streams would be "greatest during the active construction phase of the project." Id .
• Although the Hydrologic Report suggested that sediment loads would reach a "new sediment equilibrium" of one percent or less increase in sediment load within approximately four to five years, it also predicted "a new sediment equilibrium in excess of 10 percent over baseline for streams within [two certain] subwatersheds." J.A. 235.
Nearly six months later, the Forest Service issued its ROD, adopting the EIS, and presumably relying on the third and final Hydrologic Report. Of note, the Forest Service did not provide any discussion as to how its concerns with regard to the second draft had been alleviated, and did not explain how the EIS was an adequate statement even though it relied on the second draft, not the third. The ROD states merely, "Forest Service hydrology and aquatic biology specialists reviewed the [Hydrologic Report] and ... enlisted expertise from local, certified consultants to validate results." J.A. 1279.
b.
Forest Service's Adoption of the EIS's Analysis
The Forest Service may adopt FERC's EIS only if it undertakes "an independent review of the [EIS]" and "concludes that its comments and suggestions have been satisfied." 40 C.F.R. § 1506.3(c). It must also ensure that the EIS is "adequate" under NEPA regulations. Id . § 1506.3(a) ; see also Hughes River Watershed , 81 F.3d at 445 & n.6. Our responsibility is to "determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc. , 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). The agency's decision is arbitrary and capricious if it "entirely failed to consider an important aspect of the problem" or "offered an explanation for its decision that runs counter to the evidence before the agency." Defs. of Wildlife , 762 F.3d at 396 (internal quotation marks omitted).
i.
Independent Review and Comments Satisfied?
First, we discern no evidence that the Forest Service undertook the required independent review of the EIS's sedimentation analysis. Nor can we ascertain how the Forest Service concluded that its comments had been satisfied, especially after having expressed such grave concerns about the sedimentation impact and containment figures presented in the second draft of the Hydrologic Report. The Forest Service suggests the written comments from MVP after the second draft, and the Forest Service's ROD months later, demonstrate that the concerns had been alleviated. See Resp'ts' Br. 38. MVP counsel likewise explained at oral argument, "[T]he court can certainly discern the rationale" for the Forest Service's ultimate acquiescence to the 79% figure. Oral Argument at 39:37-40, Sierra Club v. Forest Service , No. 17-2399 (May 8, 2018) (hereinafter "Oral Argument"); see also Intervenor's Br. 19.
But we certainly cannot discern the Forest Service's rationale because, as MVP counsel admitted at argument, "[The Forest Service] doesn't say in the record specifically that [its proposed 48% figure] is incorrect." Oral Argument at 39:33-36. Indeed, the Forest Service expressed nothing but skepticism of the 79% figure for more than three months. In fact, the Forest Service proposed the 48% figure as a ceiling, rather than a floor or even a desired target, for sediment containment. See J.A. 1361 (proposing a figure "equal to or less than 48% containment"). Given the circumstances, we simply cannot conclude that the Forest Service undertook an independent review and determined that its comments and concerns were satisfied when it shifted from a 48% ceiling to 79% with absolutely no explanation. See 40 C.F.R. § 1506.3(c). This shift is particularly concerning in light of MVP's commentary at the May 9 meeting that using the 48% figure would have "ramifications for the entire project analysis." Id . at 1363. MVP's counsel attempted to curb this statement at argument. See Oral Argument at 35:55-36:01 (The "ramifications ... would be to challenge basic practice for dealing with construction related impacts."). But a more logical way to interpret the statement is that MVP was troubled that using the 48% figure would undercut other studies and numbers supporting the project, causing the entire project to fail or be delayed.
Moreover, MVP's June 21, 2017 comments do not support the Forest Service's change in position. For example, in response to concerns about the 79% containment figure, MVP states that the figure "is not the best-case scenario, but rather the mean reported value for both silt fences and compost filter socks, two predominant controls proposed to be used on the [pipeline right of way]." J.A. 1384. Significantly, the Forest Service already knew this. See id. at 311 (second draft of Hydrologic Report: "Th[e] [79%] value is chosen because it is the mean reported value for both silt fences and compost filter socks."). In response to both the 79% figure and the 10% sedimentation impact threshold, MVP's June 21 comments list the Dubinski thesis, one government turbidity study, "details" about erosion control on Craig Creek, and "additional support" that MVP provided to the Forest Service to further explain its rationale. Id . at 1368-69, 1372. But critically, the Forest Service ROD does not explain how these materials support the metrics used in the Hydrologic Report, or how they assuage the Forest Service's earlier concerns about TES in the above-threshold subwatersheds.
As to the 10% figure for sediment increase above baseline measures, the EIS explains that even when "accounting for [MVP's] erosion and sediment control methods," construction could increase sedimentation "by more than 10 percent along sections of Craig Creek and [other certain headwater streams, tributaries, and subwatersheds]." J.A. 235 (emphasis supplied). The EIS also explains that "a new sediment equilibrium in excess of 10 percent over baseline for streams within [two certain] subwatersheds" would occur as a result of the project. Id . (emphasis supplied). Yet the Forest Service does not address these points in adopting the EIS, even though it earlier explained that (1) "organisms respond differently to increases in sedimentation, and a 10% impact threshold to determine when impacts would occur is likely not relevant," id . at 1357-58; and (2) if increase in sediment load leads to "impacts to sensitive species," the Forest Service "must analyze the significance of adverse effects on the populations, its habitat, and on the viability of the species as a whole," id . at 1362. Indeed, the Forest Service asked MVP to further evaluate the impacts on TES of less than 10% over the sedimentation baseline, but in response, MVP simply stated that a 10% increase "would likely be within the normal variance experienced in a stream system," and "detecting sediment increases in streams is fairly difficult." J.A. 1405.
ii.
Remand to the Forest Service
Pursuant to NEPA, we conclude the Forest Service acted arbitrarily and capriciously in adopting the sedimentation analysis in the EIS. It did not "articulate[ ] a rational connection between the facts found and the choice made." Balt. Gas & Elec. , 462 U.S. at 105, 103 S.Ct. 2246. By MVP counsel's own admission, there is no statement in the ROD explaining the Forest Service's abandonment of its earlier concerns. See Oral Argument at 39:33-36 ("[The Forest Service] doesn't say in the record specifically that [its proposed 48% figure] is incorrect."). Its decision also "runs counter to the evidence before the agency." Defs. of Wildlife , 762 F.3d at 396 (internal quotation marks omitted). Leading up to the filing of the EIS, the Forest Service expressed steadfast concerns about the figures proposed by the Hydrologic Report. But it is not clear whether and how MVP's comments and the studies and reports it provided to the Forest Service alleviated those concerns. Finally, FERC incorporated the second draft of the Hydrologic Report in the EIS, even though the third and final draft was issued the previous day. There is also no indication FERC considered the third draft at all, yet the Forest Service adopted the EIS anyway.
Upon remand, the Forest Service should explain its assent to the 79% and 10% figures, and also explain how the EIS took a "hard look" at the sedimentation issues discussed here considering its reliance on a superseded report with which the Forest Service had grave concerns. If supplemental analysis is needed, i.e., regarding the effect of aquatic TES, the agency should perform that analysis as well.
2.
Forest Effects
Petitioners also contend that the BLM and Forest Service violated NEPA because, in adopting the EIS, they did not consider the impact on the forests in considering alternative routes and plans. For example, they argue the BLM and the Forest Service did not consider whether the core forests through which the right of way passes would still be part of a contiguous forest patch, or whether alternative routes "would reduce visual or scenic impacts." Pet'rs' Br. 40. They claim "[m]ore nuanced analyses could have addressed other elements of forest quality, such as the shape or 'depth' of forest patches."Id . at 36. Thus, Petitioners contend the BLM and Forest Service did not recognize that the EIS "fails to justify its conclusion" that none of the alternative routes offers a significant environmental advantage. Id . at 43.
We conclude that Petitioners have not met their "demanding burden" on this issue. Almy v. Sebelius , 679 F.3d 297, 307 (4th Cir. 2012). NEPA requires that agencies reasonably evaluate a right of way's impacts on forests and "candidly acknowledge[ ] its risks." Webster v. U.S. Dep't of Agric. , 685 F.3d 411, 429 (4th Cir. 2012).
"It is of course always possible to explore a subject more deeply and to discuss it more thoroughly." Coal. on Sensible Transp., Inc. v. Dole , 826 F.2d 60, 66 (D.C. Cir. 1987). The BLM and the Forest Service, through their respective RODs, sufficiently explained their methodology and identified the competing factors they weighed in reaching their conclusion. They also considered viable alternatives and explained why they are not appropriate.
The agencies likewise did not "entirely fail[ ] to consider an important aspect of the problem." Defs. of Wildlife , 762 F.3d at 396. The EIS indicated that the proposed right of way would transform approximately 336 acres of adjacent "interior forest" habitat into "forest edge" habitat. J.A. 210. The EIS noted that interior forest "has a higher habitat value for some wildlife species, and is generally considered rarer than forest edges which have lower habitat value for many species and can be created immediately with disturbance." Id . at 195. It also discussed the pipeline's potential to fragment interior forests. See id . at 224-26. A diagram in the EIS also demonstrates that the proposed right of way would transect three core forests that Virginia has rated as having "outstanding" or "very high" ecological value. Id . at 199.
The EIS and the BLM's ROD also discuss four alternatives to the proposed pipeline route, and they specifically address the impact on forest fragmentation. For example, Alternative 1, which would be collocated with existing electrical transmission lines for around 70 more miles than the proposed route, also "crosses 1.9 fewer miles of [National Forest Service] lands, ... and would impact less interior forest" compared to the proposed route. J.A. 604. However, it would also be 20 miles longer, "potentially disturbing 336 more acres, and 90 more parcels." Id . Hybrid Alternative 1A, which would cross the forest in a different location, would "be substantially collocated with various overhead electric transmission lines," and would cross 1.8 fewer miles of the Jefferson National Forest and five fewer miles with landslide potential. But it would also increase the length of the pipeline by six miles, affect 28 more landowners, and cross 22 more perennial streams and two more major waterbodies. Id . Hybrid Alternative 1B would reduce impacts on interior forests, but would increase the length of the pipeline by almost 15 miles and increase the "overall project disturbance." Id . at 605. And the Atlantic Coast Pipeline Collocation Alternative, which would involve the installation of the MVP pipeline adjacent to the proposed pipeline route for the Atlantic Coast pipeline project, would affect less interior and old growth forest compared to the proposed route. But that option would cross 15.6 more miles of Forest Service land, and in many areas, there is insufficient space to run the pipelines beside each other, so construction would require side slope construction techniques and additional acres of disturbance. The EIS also discussed how collocation is desirable because it reduces forest fragmentation. See id . at 225 (explaining that collocating the pipeline with an existing right of way "reduces the amount of fragmentation and new edges by shifting the existing forest edge as opposed to creating a completely new corridor").
As for visual impact, the agencies considered this as well, including "potential visual impacts ... both at the [Appalachian Trail] crossing location and from more distant viewpoints." J.A. 152. The EIS acknowledged, however, that a "buffer of undisturbed forest on either side of the trail ... would substantially reduce visual impacts." Id . at 153. The EIS also recognized "[o]ther visual effects could result from the removal of large individual trees that have intrinsic aesthetic value." Id. at 259. But it also explained measures for "minimizing visual effects" and "reducing long-term impacts of the permanent right-of-way." Id . at 271.
In sum, perhaps the agencies' analysis could have been more "nuanced," but the agencies did not "entirely fail[ ] to consider an important aspect of the problem," and their decision was not "implausible." Defs. of Wildlife. , 762 F.3d at 396. We thus defer to the agencies' conclusions on the issue of forest effects.
3.
Meaningful Analysis
As explained above, an agency may only adopt an EIS if it "meets the standards for an adequate [EIS]" under NEPA regulations. 40 C.F.R. § 1506.3(a). One applicable regulation applies to Draft Environmental Impact Statements ("DEIS") and provides:
If a [DEIS] is so inadequate as to preclude meaningful analysis , the agency shall prepare and circulate a revised draft of the appropriate portion. The agency shall make every effort to disclose and discuss at appropriate points in the [DEIS] all major points of view on the environmental impacts of the alternatives, including the proposed action.
40 C.F.R. § 1502.9(a) (emphasis supplied). In addition, "[n]o material may be incorporated by reference unless it is reasonably available for inspection by potentially interested persons within the time allowed for comment." Id . § 1502.21. Petitioners contend that the DEIS precluded meaningful comment because (1) it failed to address the efficacy of MVP's Erosion and Sediment Control Plan (the "Control Plan"); (2) its description of the project's purpose and need precluded meaningful analysis; (3) it did not adequately analyze or weigh impacts on forests. See Pet'rs' Br. 25-29. Therefore, Petitioners' claim, the agencies should not have adopted the EIS. We reject each of these arguments.
a.
Time for Comment
First, a DEIS must not be "so inadequate as to preclude meaningful analysis," and any referenced material should be made available "within the time allowed for comment." 40 C.F.R. §§ 1502.9(a), 1502.21. The Control Plan was publicly available on the FERC docket during the DEIS comment period. Indeed, Petitioners filed six pages of comments on sedimentation issues at the DEIS stage, including a critique of the Control Plan itself. Petitioners have not demonstrated that "omissions in the DEIS left the public unable to make known its environmental concerns about the project's impact." Nat'l Comm. for the New River v. FERC , 373 F.3d 1323, 1329 (D.C. Cir. 2004).
b.
Project's Purpose
Second, a DEIS "shall briefly specify the underlying purpose and need to which the agency is responding in proposing alternatives including the proposed action." 40 C.F.R. § 1502.13. We have explained, "The statement of a project's purpose and need is left to the agency's expertise and discretion, and we defer to the agency if the statement is reasonable." All. for Legal Action v. F.A.A. , 69 F. App'x 617, 622 (4th Cir. 2003) (per curiam) (citing Friends of Se.'s Future v. Morrison , 153 F.3d 1059, 1066-67 (9th Cir. 1998) ). We further explained that we should consider "the nature of the proposed federal action" informed by "the project sponsor's goals," as well as "the goals that Congress has set for the agency." Id . On the flip side, "a purpose is unreasonable when the agency defines it so narrowly as to allow only one alternative from among the environmentally benign ones in the agency's power, such that the EIS becomes essentially a foreordained formality." Webster , 685 F.3d at 422 (internal quotation marks omitted). It may also be unreasonable "if the agency draws [the purpose] so broadly that an infinite number of alternatives would accomplish" the project's goals. Id . (internal quotation marks omitted).
Here, the DEIS explained:
In general, as described by the Applicants, the purpose of ... the MVP ... is to transport natural gas produced in the Appalachian Basin to markets in the Northeast, Mid-Atlantic, and Southeastern United States. Specifically, the MVP would deliver the identified gas volumes (2 Bcf/d) to five contracted shippers via a pooling point at Transco Station 165 in Pittsylvania County, Virginia ....
J.A. 4. It is not clear whether Petitioners are arguing that this statement is too narrow or too broad. Nonetheless, we conclude the statement allows for a wide range of alternatives but is narrow enough (i.e., it explains where the gas must come from, where it will go, how much it would deliver) that there are not an infinite number of alternatives. It also reflects the goals Congress set forth in the Natural Gas Act, which bestows upon FERC the "power to perform any and all acts ... to carry out the provisions of" the NGA in the transportation of natural gas in interstate commerce. 15 U.S.C. § 717o ; see also id. § 717(b). Although Petitioners would like more detail, specifically about the precise final destination of the gas transported through the pipeline, they have not sufficiently explained how the absence of that detail precluded meaningful analysis of the DEIS.
c.
Opportunity to Respond
Third, Petitioners also believe the DEIS did not adequately analyze or weigh impacts on forests, and they lacked a meaningful opportunity to respond to an impacts analysis. However, the DEIS does discuss the project's potential to convert interior forest to edge forest and to fragment interior forests. See , e.g. , J.A. 3, 38-44, 47-49. Indeed, Petitioners and others submitted detailed comments on these edge effects and fragmentation. See, e.g., id . at 471-75. Clearly, then, there was an opportunity for meaningful comment and review, and Petitioners took advantage of it.
4.
Alternatives
Petitioners' next NEPA argument is that the Forest Service's ROD is deficient because it does not discuss all alternatives examined in FERC's EIS. Rather, it "unlawfully limited its analysis to only two alternatives: MVP's proposal and the 'no action' alternative." Pet'rs' Br. 60 (citing J.A. 1291). Petitioners claim "[t]his cabined analysis violates the Forest Service's obligation to 'rigorously explore and objectively evaluate all reasonable alternatives .' " Id . at 60-61 (quoting 40 C.F.R. § 1502.14(a) ) (emphasis in brief).
NEPA regulations require that a ROD "[i]dentify all alternatives considered by the agency in reaching its decision, specifying the alternative or alternatives which were considered to be environmentally preferable." 40 C.F.R. § 1505.2(b). The EIS shall "[r]igorously explore and objectively evaluate all reasonable alternatives," and "[d]evote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits." Id . § 1502.14(a), (b). Here, while the Forest Service ROD does not have a separate section addressing alternatives, it nonetheless adopts the EIS's conclusion that the "proposed route minimizes the totality of impacts across federal and non-federal lands," J.A. 1288, and "[t]he alternatives and variations considered were either not technically feasible or did not result in significant environmental advantage over the corresponding proposed route," id . at 1289.
NEPA regulations require the EIS-not the ROD-to "[r]igorously explore and objectively evaluate all reasonable alternatives" to the proposed action. 40 C.F.R. § 1502.14(a). Therefore, the Forest Service did not act arbitrarily in failing to tick through each alternative and the reasons for rejecting them. By adopting the EIS and rendering its decision, it sufficiently "identified" all alternatives considered and "specified" that the preferred route was environmentally preferable. Id. § 1505.2(b). In the end, the Forest Service was tasked with determining whether to amend its Forest Plan, and whether to join in the BLM's decision to grant a right of way. It was not tasked with approving the project as a whole-nor could it be under the Natural Gas Act. Therefore, this argument fails.
Petitioners also contend that the Forest Service and the BLM acted arbitrarily by "conclud[ing] that the no action alternative would not offer environmental benefits." Pet'rs' Br. 63. But the premise underlying this argument is false. In fact, the EIS acknowledges that "[c]ompared to the proposed action, the no action alternative would offer a significant environmental advantage." J.A. 116 (emphasis supplied). We reject this argument as well.
B.
The National Forest Management Act
We turn next to Petitioners' arguments under the NFMA. This Act "establishes a two-step procedure for managing National Forest System lands." Am. Wild Horse Pres. Campaign v. Perdue , 873 F.3d 914, 919 (D.C. Cir. 2017). First, the Forest Service must "develop, maintain, and, as appropriate, revise [Forest Plans]," which provide a framework for where and how certain activities can occur in national forests. Id . (quoting 16 U.S.C. § 1604(a) ); see also Sierra Club v. Robertson , 28 F.3d 753, 758 (8th Cir. 1994). Second, the Forest Service must "ensure that all '[r]esource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands' ... are 'consistent with the Forest Plans.' " Id . (quoting 16 U.S.C. § 1604(i) ) (alteration omitted).
The NFMA also provides a process for developing, revising, and amending Forest Plans. It charges the Department of Agriculture with promulgating guidelines for Forest Plans, which should, inter alia, "insure consideration of the economic and environmental aspects of various systems of renewable resource management," and "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area." 16 U.S.C. § 1604(g)(3)(A)-(B).
1.
The 2012 Planning Rule
Under the authority bestowed by the NFMA, the Forest Service has promulgated regulations for all Forest Plans. See 36 C.F.R. § 200.3(b) (Secretary of Agriculture delegating authority under the NFMA to the Forest Service). In 2012, the Forest Service issued the regulations at the heart of this appeal. See Nat'l Forest Sys. Land Mgmt. Planning, 77 Fed. Reg. 21162 (April 9, 2012) (the "2012 Planning Rule"). The 2012 Planning Rule allows forest plans to be amended "at any time." 36 C.F.R. § 219.13(a). When promulgated, the 2012 Planning Rule stated that amendments to forest plans should occur "consistent with the Forest Service NEPA procedures." Id . § 219.13(b)(3) (2012). But it did not elaborate further, which led to "confusion about how responsible officials should apply the substantive requirements for sustainability, diversity, multiple use and timber set forth in [the 2012 Planning Rule] when amending [earlier] plans." Nat'l Forest Sys. Land Mgmt. Planning, 81 Fed. Reg. 70373-01, at 70374-75 (Oct. 12, 2016).
To resolve this confusion, the Forest Service further revised portions of the 2012 Planning Rule in 2016 (the "2016 Revisions"). Specifically, the 2016 Revisions provide that the Forest Service "shall ... [d]etermine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to the plan direction being added, modified, or removed by the amendment," and then "apply such requirement(s) within the scope and scale of the amendment." 36 C.F.R. § 219.13(b)(5) (emphasis supplied). Conversely, "[t]he responsible official is not required to apply any substantive requirements within §§ 219.8 through 219.11 that are not directly related to the amendment." Id . (emphasis supplied).
Thus, the issue we consider here turns on whether the requirements in the 2012 Planning Rule are directly related to the instant Forest Service amendments to the Jefferson Forest Plan.
2.
The Jefferson Forest Plan Amendments
In its ROD, the Forest Service explained that it decided to amend the Jefferson Forest Plan standards, but only for the limited purpose of construction and operation of the MVP pipeline. It made amendments in five categories to accommodate the project: (1) utility corridors; (2) soil and riparian; (3) old growth management; (4) Appalachian Trail area; (5) and scenic integrity. See J.A. 1274-76. For example, following is an amendment set forth in the Forest Service ROD, with the bold language applicable only for purposes of the MVP pipeline project:
Standard FW-5: On all soils dedicated to growing vegetation, the organic layers, topsoil and root mat will be left in place over at least 85% of the activity area and revegetation is accomplished within 5 years, with the exception of the operational right-of-way and the construction zone for the Mountain Valley Pipeline, for which the applicable [MVP proposed] mitigation measures ... must be implemented.
Id . at 1274. There are similar Forest Plan standards from which the MVP project is exempt, including: (1) no heavy equipment can be used on plastic soils when the water table is within 12 inches of the surface or when soil moisture exceeds the plastic limit; (2) heavy equipment is operated so that soil indentations, ruts, or furrows are aligned on the contour, and the slope of such indentations is 5% or less; (3) management activities expose no more than 10% mineral soil in the channeled ephemeral zone; (4) management activities expose no more than 10% mineral soil within the project area riparian corridor.
3.
"Directly Related"
Having set forth the amendments to the Jefferson Forest Plan, we must now look to whether the 2012 Planning Rule substantive requirements are "directly related" to the plan direction added or modified by those amendments. 36 C.F.R. § 219.13(b)(5).
a.
Proper Analysis
In undertaking the "directly related" analysis, an agency's "determination must be based on the purpose for the amendment and the effects (beneficial or adverse) of the amendment, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale." 36 C.F.R. § 219.13(b)(5)(ii) (emphasis supplied). In the ROD, the Forest Service states that some 2012 Planning Rule soil and riparian substantive requirements are "relevant to th[e] [Jefferson Forest Plan] amendment": for example, soil and soil productivity; water resources in the plan area; ecological integrity of riparian areas. J.A. 1287 (emphasis supplied). But it nonetheless concludes they were not "directly related" to the Planning Rule because, with proposed mitigation measures in the plan of development and project design, which "will minimize adverse environmental impacts to soils and water resources and riparian areas," the amendment will not cause "substantial adverse effects" or "a substantial lessening of protections" to soil and water. Id .
With regard to the directly related analysis, the Department of Agriculture itself has explained, "When a specific substantive requirement is associated with either the purpose for the amendment or the effects (beneficial or adverse) of the amendment, the responsible official must apply that requirement to the amendment." Nat'l Forest Sys. Land Mgmt. Planning, 81 Fed. Reg. 90723-01, 90731 (Dec. 15, 2016) (emphasis supplied). We conclude that the only way to read this statement, along with § 219.13(b)(5)(ii), is to require the agency to look to both the purpose and effect of the amendment, and if the substantive requirement at issue (i.e., soil, water) is based upon or associated with either one, it is directly related .
In its ROD here, however, the Forest Service failed to analyze the purpose of the amendment. Instead, it only analyzed the effects of the amendment. This is an improper interpretation of a decidedly unambiguous regulation -- one that, as noted directly above, the Department of Agriculture had already interpreted to the contrary -- and thus, the Forest Service analysis here is entitled to no deference. See Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (review of agency's interpretation of its own regulation "controlling unless plainly erroneous or inconsistent with the regulation" (internal quotation marks omitted) ); see also Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 193 (4th Cir. 2009) ("In applying ... Auer deference ... we must first determine whether the regulation itself is unambiguous; if so, its plain language controls." (internal quotation marks omitted) ).
b.
Purpose of the Amendment
Thus, we look to the purpose of the amendment, which is determined by "the need to change the plan." 36 C.F.R. § 219.13(b)(1) ; see also 81 Fed. Reg. at 90,731. A "responsible official" is required to identify that need, 36 C.F.R. § 219.13(b), and the record is clear that the Forest Service has already done this. The Forest Service admittedly needed to change the Forest Plan because the MVP project could not meet its requirements otherwise. See J.A. 1280 ("The amendment [to the Forest Plan] is needed because the MVP Project cannot achieve several Forest Plan standards that are intended to protect soil, water, [and] riparian ... resources ." (emphasis supplied) ). Of note, elsewhere in the ROD, the Forest Service characterizes the purpose of the amendment as "ensur[ing] consistency between provisions of the Forest Plan and the proposal to construct, operate, and maintain [the pipeline] on National Forest System land." J.A. 1284. But there would be no need to "ensure consistency" if the Forest Plan need not be amended in the first place. Thus, the clear purpose of the amendment is to lessen requirements protecting soil and riparian resources so that the pipeline project could meet those requirements.
Having determined the purpose of the amendment, it is clear the Planning Rule sets forth substantive requirements directly related to that purpose: "soil and soil productivity" ( 36 C.F.R. § 219.8(a)(2)(ii) ); "water resources" ( 36 C.F.R. § 219.8(a)(2)(iv) ); "the ecological integrity of riparian areas" ( 36 C.F.R. § 219.8(a)(3)(i) ). Therefore, there is no question that the 2012 Planning Rule requirements for soil, water, and riparian resources are directly related to the purpose of the Forest Plan amendment. The Forest Service acted arbitrarily and capriciously in concluding otherwise.
c.
Remand to the Forest Service
Because the soil and riparian Planning Rule requirements are directly related to the amendments to the Jefferson Forest Plan, the agency is required to "apply [those] requirement[s] within the scope and scale of the amendment." 36 C.F.R. § 219.13(b)(5). At base, this means that the Forest Service is required to ensure that amendments to the soil and riparian standards in the Jefferson Forest Plan will comply with the NFMA and attendant regulations. The Forest Service claims this would be an exercise in futility, as the record already demonstrates that the mitigation measures proposed by MVP and agreed upon by FERC and the other agencies will ensure that there will be no substantial adverse effects to soil and water. However, as explained in our analysis of the Hydrologic Report, supra , the record does not support such a conclusion as a matter of law. We therefore remand to the Forest Service for proper application of the Planning Rule soil and riparian requirements to the Forest Plan amendment.
C.
The Mineral Leasing Act
Finally, we turn to Petitioners' argument that the BLM violated the MLA in its grant of the 3.6 mile right of way across federal land. The Natural Gas Act gives FERC the authority over construction and operation of interstate gas pipelines, but it does not limit or modify other agencies' authority or obligations. The MLA regulates the location of interstate pipelines across most federal lands. See 30 U.S.C. § 185(a). This includes approving rights of way and easements for the siting of those pipelines. The BLM implements the right of way program to "[p]rotect[ ] the natural resources associated with Federal lands"; "[p]revent[ ] unnecessary or undue degradation to public lands"; and "[p]romote[ ] the use of rights-of-way in common." 43 C.F.R. § 2881.2(a)-(c).
1.
Practicality
The MLA provides, "In order to minimize adverse environmental impacts and the proliferation of separate rights-of-way across Federal lands, the utilization of rights-of-way in common shall be required to the extent practical ." 30 U.S.C. § 185(p) (emphasis supplied). Petitioners contend the BLM violated its obligations because it "failed to demonstrate that alternatives that would make greater use of existing rights-of-way were impractical." Pet'rs' Br. 45 (emphasis supplied). We agree. Whereas the BLM's ROD adopted and incorporated the EIS's NEPA alternatives analysis on this issue, it nonetheless failed to recognize that the MLA imposes a higher and more specific bar.
The EIS "evaluate[d] a range of reasonable alternatives, as required by NEPA," explaining, "The purpose of this evaluation is to determine whether an alternative would be preferable to the proposed action ." J.A. 113-14 (emphasis supplied). The EIS used the following criteria in considering whether an alternative was "preferable": (1) whether it met "the stated purpose of the project"; (2) whether it was "technically and economically feasible and practical"; and (3) whether it "offer[ed] a significant environmental advantage over [the] proposed action." Id . at 114. Importantly, the EIS explained, "Ultimately, an alternative that results in equal or minor advantages in terms of environmental impact would not compel [FERC] to shift the impacts from the [set of landowners set to be affected by the proposed route] to a new set of landowners." Id .
Using this criteria, the EIS discussed alternative routes. For example, the Columbia Gas of Virginia ("CGV") Peters Mountain Variation would "follow existing rights-of-way ... cross[ing] approximately 0.8 mile[s] of the Jefferson National Forest." J.A. 149. However, the EIS also explained that this route "would be about 9 miles longer than the comparable portion of the proposed route, and would result in approximately 136 additional acres of construction disturbance." Id . at 151. Thus, the EIS concluded that the CGV alternative route "does not offer a significant environmental advantage when compared to the corresponding proposed route." Id . at 152 (emphasis supplied). The BLM's ROD, like the EIS, considered whether alternatives "offer[ed] a significant environmental advantage over the proposed pipeline route." Id . at 603; see also id. at 607. Nowhere, however, does the BLM recognize the MLA's direction that the utilization of rights of way in common "shall be required to the extent practical." 30 U.S.C. § 185(p).
However, the BLM contends that its analysis is sufficient, explaining, "The comparative analysis in the EIS showed that alternative National Forest crossings along existing rights-of-way posed greater practical difficulties without yielding a significant environmental advantage." Resp'ts' Br. 16. Thus, by incorporating and adopting the EIS, the BLM fulfilled its statutory duty to utilize existing rights of way when practical . The BLM also argues it has wide discretion to decide, on a case-by-case basis, which alternatives are practical. As support for its interpretation, it points to a BLM regulation providing that the agency "may ... restrict new grants to existing right of way corridors where safety and other considerations allow ." 43 C.F.R. § 2882.10(b) (emphases supplied). And as set forth in the EIS, with regard to alternatives, other factors outweighed the environmental benefits of utilizing existing rights of way.
We disagree with the BLM's analysis. The agency "entirely failed to consider an important aspect of the problem." Defs. of Wildlife , 762 F.3d at 396. It never decided that the utilization of an existing right of way would be impractical . Indeed, it never even purported to do so. Had the BLM done so, its analysis -- rather than favoring the proposed route by rejecting alternatives unless they were substantially better -- would have favored routes utilizing existing rights of way unless those alternatives were impractical.
Although the BLM did not make a practicability finding, we are not authorized to step in and do so on behalf of the agency, nor may we predict how the agency might have made such a finding. See Michigan v. EPA , --- U.S. ----, 135 S.Ct. 2699, 2710, 192 L.Ed.2d 674 (2015) ("[A] court may uphold agency action only on the grounds that the agency invoked when it took the action." (citing SEC v. Chenery Corp. , 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ) ). We thus vacate the BLM's decision and remand for consideration of the MLA's preference for utilizing existing rights of way.
2.
Feasibility
The MLA also requires the BLM to ensure that "activities in connection with the right-of-way or permit" comply with "facility siting standards established by or pursuant to law." 30 U.S.C. § 185(h)(2)(B). Petitioners state that one such facility siting standard is set forth in the Jefferson Forest Plan and requires that "[w]hen feasible, expansion of existing corridors and sites is preferable to designating new sites." Standard FW-247, J.A. 1238.
Petitioners read this standard as creating an obligation upon the BLM to demonstrate that collocation with existing rights of way is infeasible . But the siting standard does not appear to apply to the ROD's determination of the proper route for a right of way. Rather, it dictates that the right of way grant would "ensure that activities in connection with" the right of way abide by siting standards. See 43 C.F.R. § 2885.11(b)(9)(ii) (providing that applicants who receive a right of way grant from the BLM must, "[d]uring construction, operation, maintenance, and termination of the project," "[e]nsure that activities in connection with the grant ... comply with ... facility siting standards"); see also J.A. 572 (BLM ROD stating that approval of the right of way is "subject to terms, conditions, stipulations, and environmental protection measures" developed by the Forest Service, which would include the Jefferson Forest Plan). Accordingly, the BLM is not required to show that siting alternatives are infeasible under the MLA.
IV.
MVP's proposed project would be the largest pipeline of its kind to cross the Jefferson National Forest. American citizens understandably place their trust in the Forest Service to protect and preserve this country's forests, and they deserve more than silent acquiescence to a pipeline company's justification for upending large swaths of national forestlands. Citizens also trust in the Bureau of Land Management to prevent undue degradation to public lands by following the dictates of the MLA.
As a result, for the reasons set forth herein, we grant the petition for review of the Forest Service Rule of Decision and vacate that decision. We also grant the petition for review of the BLM's Rule of Decision and vacate that decision. We remand to the respective agencies for proceedings consistent with this opinion.
PETITIONS FOR REVIEW GRANTED, VACATED AND REMANDED
Citations to the "J.A." refer to the Corrected Deferred Joint Appendix filed by the parties in this appeal.
The issues in this case concern both the draft EIS and the final EIS. Unless otherwise noted, the acronym "EIS" in this opinion refers to the final Environmental Impact Statement issue by FERC.
This regulation provides, "If more than one Federal agency participates in a program activity, a lead agency shall be selected .... The lead agency, in full cooperation with all participating agencies, shall assume responsibility for involving the public ... and shall prepare the EIS or shall cause the EIS to be prepared ...." 7 C.F.R. § 3407.11(a).
The Army Corps of Engineers is not a party to this case.
Erosion is defined as the "removal of surface material from the Earth's crust, primarily soil and rock debris, and the transportation of the ... materials by natural agencies (such as water or wind) from the point of removal." Erosion, Encyclopaedia Britannica: Geology , https://www.britannica.com/science/erosion-geology (enclosed as PDF attachment). Sedimentation is defined as the "process of deposition of a solid material," or sediment, "from a state of suspension or solution in a fluid," here, the waters in the vicinity of the Jefferson National Forest. Sedimentation, Encyclopaedia Britannica: Geology , https://www.britannica.com/science/sedimentation-geology (enclosed as PDF attachment).
We decline to address any arguments by Petitioners that seek to challenge FERC's actions in composing the EIS. FERC is not a party to this case, and such challenges are being made elsewhere, via the FERC rehearing process, see FERC-CP 16-10-000, and in the D.C. Circuit, see Appalachian Voices v. FERC , No. 17-1271 (D.C. Cir. filed Dec. 22, 2017). In this matter, we address only the arguments that the Forest Service and the BLM failed to comply with applicable regulations in adopting and relying upon the EIS.
Sediment basins and traps "are designed to promote settling of sediment by reducing flow velocities." J.A. 310. Sediment barriers, such as silt fences, "are installed to intercept and detain sediment from disturbed areas and to decrease the velocity of sheet flows." Id . at 311. Sheet flow is when water "flow[s] overland as a sheet instead of in definite channels or rills." Sheet erosion, Encyclopaedia Britannica: Geology , https://www.britannica.com/science/sheet-erosion (enclosed as PDF attachment).
The third and final draft of the Hydrologic Report became available on FERC's docket on June 30, 2017.
"Interior forest" is defined in the EIS as "forested areas greater than 300 feet from the influence of forest edges or open habitat." J.A. 195.
The 2016 Revision took effect Jan. 17, 2017, after initiation of the proceedings at issue here. The Forest Service agrees that its final decision was required to comply with the revised rule. See J.A. 1272.
Petitioners only challenge the soil and riparian category on this issue.
Plastic soils are soils that exhibit plastic properties and "will deform without shearing (typically silts or clays)." Plastic Soil, Vocabulary Catalog , Environ. Prot. Agency, https://iaspub.epa.gov/sor_internet/registry/termreg/searchandretrieve/glossariesandkeywordlists/search.do?details=&vocabName=UST% 20Technical% 20Terms, Page 5 of 7 (enclosed as PDF attachment).
An ephemeral stream "has flowing water only during, and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow." Ephemeral Stream, Glossary , Environ. Prot. Agency, https://www.epa.gov/sites/production/files/201602/documents/realestate_glossary.pdf (enclosed as PDF attachment).
Riparian areas are "lands adjacent to streams, lakes, and estuarine-marine shorelines. Riparian areas are transitional between terrestrial and aquatic ecosystems, through which surface and subsurface hydrology connects water bodies with their adjacent uplands." Riparian, Glossary , Environ. Prot. Agency, https://www.epa.gov/sites/production/files/2016-02/documents/realestate_glossary.pdf (enclosed as PDF attachment). A riparian corridor, on the other hand, is a Forest Service designated prescription area that includes the area in and around water, including the highest water mark and around the perimeter of the water source. See Forest Service, Definition of Riparian Corridor , https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/ stelprd3834599.pdf (enclosed as PDF attachment).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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PREGERSON, Circuit Judge:
Don A. Cose and Darlene A. Cose (“the Coses”) appeal the district court’s grant of summary judgment dismissing them Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., action against the Getty Oil Company (“Getty Oil”), et al. The CERCLA action sought recovery for response costs needed to clean subsurface crude oil tank bottom waste discovered on property purchased from Getty Oil. The tank bottom waste contains substances deemed hazardous under CERCLA. The district court based its dismissal on its conclusion that crude oil tank bottoms fall within CERCLA’s petroleum exclusion. We disagree and therefore reverse.
BACKGROUND
Getty Oil produced crude oil from wells in the Tafts-Fellow area of Kern County, California. The oil was transported by Getty to its Avon refinery in Martinez, California via a pipeline route and pumping stations located at twelve-mile intervals. The crude oil was stored at the pumping stations in tanks and heated to reduce its viscosity. The oil was then pumped farther along the pipeline.
When crude oil is stored in tanks, suspended sedimentary solids in the crude oil settle to the bottom. Because water is heavier than oil, it separates from the oil and also collects at the bottom of the tank. The bottom layer of the tank is known as basic sediment and water, or “crude oil tank bottoms.” Crude oil tank bottoms are typically drained from crude oil storage facilities and disposed of in nearby sumps.
One pumping station used by Getty Oil was located in Tracy, California. The sump facility for the Tracy pumping station was situated on nearby property called the “Gravel Pit.” About once a week, the crude oil tank bottoms from the Tracy pumping station storage tanks were drained and dumped in the Gravel Pit. Getty Oil closed the Tracy pumping station by 1968, when a new pipeline system on a different route rendered the Tracy station obsolete.
In May 1974, Don A. Cose purchased the Gravel Pit, a 40-acre parcel of undeveloped land, from Getty Oil for $50,000. The complaint alleges that when Cose purchased the property, a layer of topsoil concealed the crude oil tank bottom materials dumped on the property and hence, a reasonable inspection of the premises did not disclose the dumped materials. The Coses contend that they discovered the presence of a “subsurface asphalt or tar-like material” on the property in November 1987 when they undertook to develop the property for housing. They then commissioned Kleinfelder, Inc., a soils and environmental engineering firm, to investigate the property further. The investigation included a preliminary assessment of the chemical composition of the oily waste found on the property. Of particular concern, the investigation revealed a “high concentration” (10.5 ppm) of Chrysene, a known carcinogen. Kleinfelder Report, at 4. The concentration level of Chrysene in crude oil in the region was determined to be 28.0 ppm. The Kleinfelder report recommended that “the waste, which contains concentrations of [petroleum hydrocarbons] that are considered hazardous by many regulatory agencies, be removed or stabilized prior to development of the site.” Kleinfelder Report, at 1.
Based on the results of the Kleinfelder investigation, the Coses filed suit in federal district court under CERCLA to recover “response costs” needed to clean up the Gravel Pit property. 42 U.S.C. § 9607(a)(3).
In response, Getty Oil moved for summary judgment. In its summary judgment motion, Getty Oil contended that the Coses could not prove that Getty Oil had disposed of a “hazardous substance” on the Gravel Pit property because CERCLA excludes from its “hazardous substances” definition crude oil tank bottoms.
The district court agreed and granted summary judgment in favor of Getty Oil. This appeal followed.
ANALYSIS
We review de novo the district court’s grant of summary judgment. Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1262 (9th Cir.1990). Likewise, we review de novo the district court’s interpretation of CERCLA. Wilshire Westwood Assoc. v. Atlantic Richfield, 881 F.2d 801, 803 (9th Cir.1989).
We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). The court must enter summary judgment, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id.
On appeal, the Coses do not allege that summary judgment was improper due to a genuine issue of material fact. Rather, this appeal rests solely on a claim that the district court incorrectly applied the relevant substantive law. Hence, we must review the relevant substantive law underlying CERC-LA claims in this context.
Congress enacted CERCLA in 1980 “to facilitate the cleanup of leaking hazardous waste disposal sites.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989) (citing Exxon Corp. v. Hunt, 475 U.S. 355, 358-60, 106 S.Ct. 1103, 1107-08, 89 L.Ed.2d 364 (1986)). To further this purpose, Congress created a private cause of action for certain “response costs” against various types of persons who contributed to hazardous waste dumping at a specific site. Ascon Properties, 866 F.2d at 1152 (citing 42 U.S.C. § 9607(a)).
To state a prima facie case under CERCLA, 42 U.S.C. § 9607(a), a plaintiff must allege that: (1) the waste disposal site is a “facility” within the meaning of 42 U.S.C. § 9601(9); (2) a “release” or “threatened release” of a “hazardous substance” from the facility has occurred, id. § 9607(a)(4); (3) such release or “threatened release” will require the expenditure of response costs that are “consistent with the national contingency plan,” id. §§ 9607(a)(4) and (a)(4)(B); and, (4)the defendant falls within one of four classes of persons subject to CERCLA’s liability provisions. Id. at §§ 9607(a)(1)-(4); Ascon Properties, 866 F.2d at 1152.
Here, the district court granted summary judgment in favor of the defendants because it concluded as a matter of law that crude oil tank bottoms are not “hazardous substances” under CERCLA. Hence, the court held that the Coses could not establish a prima facie case under CERCLA because they could not show that Getty Oil had released a “hazardous substance.”
CERCLA defines “hazardous substance” by reference to substances listed under various other federal statutes. See 40 C.F.R. § 302.4 (comprehensive listing of CERCLA hazardous substances). But § 9601(14) of CERCLA expressly excludes from its “hazardous substance” definition “petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of [§ 9601(14)]....”
Both the EPA and our court interpret the petroleum exclusion to apply to petroleum products, even if a specifically listed hazardous substance, such as Chrysene, is indigenous to such products. See EPA Memorandum, July 31, 1987; Wilshire Westwood Assoc., 881 F.2d 801 (leaded gasoline falls within the petroleum exclusion despite hazardous indigenous components and additives). In Wilshire, we analyzed the plain meaning of CERCLA, its post-enactment legislative history, and the EPA’s interpretation of the statute to reach the following conclusion:
[T]he petroleum exclusion in CERCLA does apply to unrefined and refined gasoline even though certain of its indigenous components and certain additives during the refining process have themselves been designated as hazardous substances within the meaning of CERCLA.
881 F.2d at 810 (emphasis added).
The EPA has followed this interpretation through its rules and memoranda. As the EPA explained in a Final Rule published April 4, 1985,
EPA interprets the petroleum exclusion to apply to materials such as crude oil, petroleum feedstocks, and refined petroleum products, even if a specifically listed or designated hazardous substance is present in such products. However, EPA does not consider materials such as waste oil to which listed CERCLA substances have been added to be within the petroleum exclusion.
50 Fed.Reg. 13,460 (April 4, 1985) (emphasis added). See also Mid Valley Bank v. North Valley Bank, 764 F.Supp. 1377, 1384 (E.D.Cal.1991) (waste oil containing CERC-LA hazardous substances does not fall under CERCLA’s petroleum exclusion); United States v. Western Processing Co., 761 F.Supp. 713, 722 (W-D.Wash.1991) (tank bottom sludge does not fall within the petroleum exclusion in part because the sludge at issue contained contaminants that were not indigenous to the crude oil itself).
If a specifically listed hazardous substance is indigenous to petroleum and is present as a result of the release of petroleum, such substance will fall within the petroleum exclusion unless it is present at a concentration level that exceeds the concentration level that naturally occurs in the petroleum product. See, e.g., State of Washington v. Time Oil Co., 687 F.Supp. 529, 532 (W.D.Wash.1988) (contaminants in excess of amounts that would have occurred during the oil refining process and substances that would not have occurred due to the refining process do not fall under the petroleum exclusion).
Our court has not yet addressed the question whether the separated sediment and water that constitute crude oil tank bottoms fall within CERCLA’s petroleum exclusion. This is the issue that we must decide.
The Coses contend that crude oil tank bottoms are discarded waste products and not fractions of the crude oil. Hence, the Chrysene, which is part of the tank bottom material dumped at the Gravel Pit, does not fall within the petroleum exclusion. In contrast, Getty Oil contends that crude oil tank bottoms are components of the crude oil. Hence, because the concentration level of the Chrysene found in the Gravel Pit does not exceed the concentration level found in regional crude oil, the tank bottoms fall within the petroleum exclusion. We address each argument in turn.
A. Argument that Crude Oil Tank Bottoms Are Not “Petroleum, Including Crude Oil or a Fraction Thereof’ Under CERCLA, 42 U.S.C. § 9601(14)
1. Definition of “Fraction” and “Petroleum”
As a starting point, we will examine the definitions of the words “fraction” and “petroleum.” Our court took judicial notice of these definitions in Wilshire Westwood Assoc. v. Atlantic Richfield, 881 F.2d at 803. In Wilshire, we defined “fraction” to mean “one of several portions (as of a distillate or precipitate) separable by fractionation and consisting either of mixtures or pure chemical compounds.” Id. (citing Webster’s Third New International Dictionary Unabridged (1981)).
Likewise, in Wilshire we defined “petroleum” as:
[A]n oily flammable bituminous liquid ... that is essentially a compound mixture of hydrocarbons of different types with small amounts of other substances (as oxygen compounds, sulfur compounds, nitrogen compounds, resinous and asphaltic components, and metallic compounds) ... and that is subjected to various refining processes (a fractional distillation, cracking, catalytic reforming, hydroforming, alkylation, polymerization) for producing useful products (as gasoline, naphtha, kerosene, fuel oils, lubricants, waxes, asphalt, coke, and chemicals____)
Id. (emphasis added). Crude oil tank bottoms do not fall within the plain meaning of the definition of “fraction” or “petroleum.”
Crude oil tank bottoms are comprised of water and sedimentary solids that settle out of the crude oil and create a layer of waste at the bottom of the crude oil storage tanks. Such tank bottoms accumulate naturally before the crude oil even reaches the refinery. Crude oil tank bottoms are not “one of several portions separable by fractionation” of crude oil, as required by our definition of “fraction.”
Likewise, crude oil tank bottoms are never “subjected to various refining processes” as required by our “petroleum” definition. Moreover, such tank bottoms are not used “for producing useful products.” Rather, as evidenced at the Gravel Pit property, the substance is simply discarded waste.
Accordingly, the definitions of “fraction” and “petroleum” as adopted by our court urge a conclusion that crude oil tank bottoms do not fall within CERCLA’s exclusion of “petroleum, including crude oil or a fraction thereof.”
2. United States v. Western Processing Co.
The only federal court to address whether tank bottom material is “petroleum” applied reasoning similar to the reasoning reflected in the definition of petroleum. In United States v. Western Processing Co., 761 F.Supp. at 721, the district court concluded that “tank bottom sludge is a contaminated waste product, and not a petroleum fraction, as that term is used in [CERCLA].” Id. (emphasis added). In so ruling, the court focused in part on the tank bottom’s status as “waste” in contrast to a useful petroleum product, which would be considered a petroleum fraction under CERCLA.
The decision in Western Processing relied heavily on EPA interpretations of CERC-LA’s petroleum exclusion. In so doing, the district court noted that, as the agency with the relevant CERCLA expertise, EPA’s interpretations of the petroleum exclusion are entitled to “considerable deference.” Id. The court further observed that “the [EPA’s] interpretations harmonize the petroleum exclusion with the goal of CERCLA in order that the fullest remedial nature of the statute may be realized.” Id.
The district court noted a “theme” running through two EPA documents: that wastes are distinguishable from recyclables. Id. The court cited an EPA Final Rule published April 4, 1985 in which the EPA states in Section 1, Hazardous Substances Subject to This Rule, a. ICRE Substances:
If a nondesignated ICR substance is spilled and immediately cleaned up for repackaging, reprocessing, recycling, or reuse, it is not a waste and the spill need not be reported.
... However, if the substance is not cleaned up for eventual disposal, it is then a waste (and thus a hazardous substance) which has been released to the environment and must be reported if it exceeds the RQ.
... [T]oday’s final rule has been clarified to show the distinction between substances that are wastes prior to their initial release and substances that become wastes after their initial release.
Id.
Similarly, the court in Western Processing cited a December 13, 1990 EPA Memorandum, which stated that “[t]he wastes from the interior of the tank [that] include unre-covered product, water, sludge, scale, etc. are presumed to be hazardous.... The only method to remove the presumption is to test the waste for characteristics of a hazardous waste.” Id. (citation omitted) (emphasis added).
Applying the EPA’s approach, the court in Western Processing held:
[The] tank bottom material was certainly “waste” as it was being hauled away for disposal, not for reuse. For whatever reason Congress may have elected to treat “petroleum” releases differently under CERCLA, conceptually there is a difference between releases of petroleum, products from tanker spills or from leaking storage tanks and the delivery of petroleum related waste material to a disposal or treatment facility. The former releases have unique characteristics, while in the latter case, the wastes are just one more waste product delivered to a facility where other such wastes accumulated from deliveries by others.
Id. at 721 (emphasis added).
Here, the crude oil tank bottoms are clearly “waste materials.” Getty Oil disposed of the tank bottom materials with no intention of recycling such materials. Hence, the “waste vs. recyclable” distinction further supports a conclusion that crude oil tank bottoms are not a fraction of crude oil and that the tank bottoms therefore do not fall within CERCLA’s petroleum exclusion.
3. Legislative History
CERCLA’s legislative history regarding the scope of the petroleum exclusion lends further support for the conclusion that tank bottom substances disposed of in dump sites do not fall within CERCLA’s petroleum exclusion. An EPA Memorandum dated July 31, 1987, which specifically addresses the petroleum exclusion, characterizes these remarks of Congresswoman Mikulski as reflecting Congressional intent:
I realize that it is disappointing to see no oil-related provision in the bill, but we must also realize that this is our only chance to get hazardous waste dump site cleanup legislation enacted.
Moreover, there is already a mechanism in place that is designed to deal with spills in navigable waterways. There is not, however, any provision currently in our law that addresses the potentially ruinous situation of abandoned toxic waste sites.
EPA Memorandum, July 31, 1987 (citing 126 Cong.Ree. H11796) (daily ed. December 3, 1980). Congresswoman Mikulski’s remarks indicate that CERCLA’s focus is on cleanup of hazardous waste dump sites. We should interpret the petroleum exclusion in light of CERCLA’s overall purpose. This purpose further compels us to conclude that crude oil tank bottoms, which include hazardous components such as Chrysene, that are dumped at waste sites should not find protection under CERCLA’s petroleum exclusion.
B. The District Court’s Grant of Summary Judgment
The district court based its decision to grant summary judgment in favor of Getty Oil on: (1) a 1981 EPA Memorandum that states that petroleum waste or waste oil not specifically listed under the Resource Conservation and Recovery Act (“RCRA”) is excluded from the definition of “hazardous substance” under CERCLA; and (2) a 1982 opinion by the EPA General Counsel that states that the petroleum exclusion encompasses hazardous substances inherent in petroleum, but not those added to or mixed with petroleum or those found at concentrations exceeding those normally found in petroleum. A closer review of these considerations indicate that the district court erred in its conclusion of law.
The 1981 and 1982 memoranda do not bear upon whether crude oil tank bottoms are “petroleum” within the meaning of CERC-LA. As discussed above, crude oil tank bottoms are not “petroleum waste” or “waste oil” because such tank bottoms are not “petroleum” to begin with. Crude oil tank bottoms are merely comprised of water and suspended solids that settle out óf crude oil and collect at the bottom of the crude oil storage tanks en route to the refineries. The 1981 and 1982 memoranda on which the district court relied in granting summary judgment address the application of the petroleum exclusion to a petroleum product, either one that is a “waste” petroleum product or one that contains indigenous hazardous products. Because crude oil tank bottoms are not “petroleum products,” the memoranda do not apply.
The district court further based its decision to grant summary judgment on the fact that leaded tank bottoms in the refining industry are specifically listed as “hazardous substances” under CERCLA. Getty Oil argued that such listing demonstrates that the EPA considered tank bottoms in general in establishing the “hazardous substances” list. Accordingly, Getty Oil contends that the EPA implicitly decided not to list crude oil tank bottoms as a hazardous substance. Getty Oil concludes then that we should deem crude oil tank bottoms to fall within CERCLA’s petroleum exclusion. As support, Getty Oil cites an EPA advisory letter dated May 21, 1981 from the Chief of EPA’s Discovery and Investigation Branch to Mobil Oil. The letter concluded that, despite the specific listing of leaded tank bottoms in the oil refining industry as “hazardous substances” under CERCLA, leaded tank bottoms in the petroleum marketing industry fall within the petroleum exclusion.
Getty Oil’s argument, however, incorrectly assumes that all types of tank bottoms are considered “petroleum, including crude oil or a fraction thereof’ under CERCLA. In this way, Getty argues that, unless a particular type of tank bottoms is specifically listed as a hazardous substance and thereby removed from the petroleum exclusion, we must assume that such tank bottoms fall within CERCLA’s petroleum exclusion.
In interpreting CERCLA’s petroleum exclusion, however, we can identify critical distinctions between leaded tank bottoms and crude oil tank bottoms. Leaded tank bottoms consist of waste generated from cleaning leaded gasoline storage tanks. Patricia Broussard-Welther, Thermal Desorption Meets BDAT Standards at Louisiana Refinery, Oil & Gas Journal, Nov. 2, 1992, at 58. As such, such substances have been “subjected to various refining processes” in the production of leaded gasoline. Leaded gasoline in turn is considered a “useful product” within the definition of petroleum, as judicially noticed by our court. See Wilshire, 881 F.2d at 803.
Accordingly, leaded tank bottoms constitute “petroleum or a fraction thereof’ under CERCLA. As the EPA has observed, leaded tank bottoms will fall within the petroleum exclusion, unless otherwise excluded as a “hazardous substance’’ under CERCLA See 40 C.F.R. § 302.4.
In contrast, as discussed in detail above, crude oil tank bottoms are not “petroleum, including crude oil or a fraction thereof’ under CERCLA and therefore do not fall within CERCLA’s petroleum exclusion in the first instance. See discussion supra. Hence, unlike leaded tank bottoms, crude oil tank bottoms do not have to be specifically exempt from the petroleum exclusion as a “hazardous substance” to invoke CERCLA. Accordingly, the fact that crude oil tank bottoms are not listed as a “hazardous substance” under CERCLA does not preclude CERCLA’s application.
Getty Oil also cites as support a statement made by Senator Simpson during Senate debate on related legislation, the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. 99-499, 100 Stat. 1613. Senator Simpson stated:
This bill will not diminish the scope of the present petroleum exclusion. That provision, found in section 101(14) of the Act excludes from the definition of “hazardous substances” all types of petroleum, including crude oil, crude oil tank bottoms, refined fractions of crude oil, and tank bottoms of such which are not specifically listed or designated as a hazardous substance under the other subparagraphs of that provision.
132 Cong.Rec. S14931-32 (daily ed. Oct. 3, 1986) (emphasis added).
Post-enactment legislative history merits less weight than contemporaneous legislative history. See Wilshire, 881 F.2d at 806. Senator Simpson’s stray comment was made six years after the enactment of CERCLA’s petroleum exclusion, which remains unaltered to this date. Hence, we confer little, if any, weight to the comment.
C. Application of Non-Petroleum Classification
Because we conclude that the crude oil tank bottoms here at issue are not “petroleum” and therefore not subject to CERC-LA’s exclusion, the Chrysene found within the Gravel Pit’s environmental samples is properly viewed as an independent “hazardous substance,” rather than as a component of petroleum. Liability is imposed under CERCLA regardless of the concentration of the hazardous substances present in a defendant’s waste, as long as the contaminants are listed “hazardous substances” pursuant to 40 C.F.R. § 302.4(a). See Louisiana-Pacific Corp. v. Asarco, Inc., 735 F.Supp. 358, 361 (W.D.Wa.1990), aff'd 909 F.2d 1260 (9th Cir.1990). Hence, the Coses need only show the presence of Chrysene to recover cleanup costs from Getty Oil under Sections 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3). Because the presence of Chrysene in the Gravel Pit is undisputed, we reverse the district court’s grant of summary judgment and remand this matter to the district court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
. Getty Oil was the successor in interest to Tidewater Oil Company, formerly Tidewater Associated Oil Company. Texaco Inc. acquired all of the stock of Getty Oil in the mid-1980's. Getty subsequently changed its name to Four Star Oil and Gas Company. Accordingly, the Coses bring this action against Getty Oil, Texaco Inc., and the Four Star Oil and Gas Company.
. The Coses also brought pendent state claims seeking damages for public and private nuisance, negligence, strict liability based on a defective product, statutory tort, and fraud.
. Title 42 U.S.C. § 9601(14) defines a "hazardous substance” as:
(A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15....
. The separation of the tank bottoms from the crude oil does not occur as part of the "fractional distillation” process. Rather, fractional distillation is an industrial (refinery) process whereby the crude oil is partially vaporized and the vapor and residue recovered separately. Encyclopedia of Chemistry, "Distillation,” at 326 (4th ed. 1984).
.It is important to note that Western Processing is factually distinguishable from the case at hand because that case involved tank bottom material to which sand and rust contaminants from the sides of the storage tanks had been added. Here, the Coses do not contend that the tank bottoms that were disposed of in the Gravel Pit property were contaminated with any substances other than those that separated from the stored crude oil. Nonetheless, much of the Western Processing analysis is relevant to the case at hand.
. Getty Oil's argument that the discarded tank bottoms may indeed be "recyclable” at this time is irrelevant because Getty disposed of the substances with no intention to recycle or reuse such materials, as evidenced by the fact that the company sold the Gravel Pit to the Coses without attempting any reuse options.
. As further support for the contention that Congress intended the petroleum exclusion to protect "useful” products only, the Coses also note additional CERCLA language that excludes “natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel...from the definition of "hazardous substance.” 42 U.S.C. § 9601(14).
. The EPA subsequently interpreted "waste oil” to include only unadulterated waste oil. EPA Memorandum, July 31, 1987, n. 2.
. Crude oil tank bottoms are not specifically listed under RCRA.
. In 1986, Congress enacted Section 205 of SARA, which amended subtitle I of the Solid Waste Disposal Act by adding Section 9003(h), 42 U.S.C. § 6991b(h). Section 9003(h) established a separate response program for petroleum leaking from underground storage tanks. SARA did not alter the meaning of the petroleum exclusion initially set forth under CERCLA but did amend CERCLA by adding a definition of the term "pollutant or contaminant” to CERCLA in Section 101(33), 42 U.S.C. § 9601(33). See Wilshire, 881 F.2d at 807. This definition contains a petroleum exclusion identical to the exclusion in Section 9601(14).
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OPINION OF THE COURT
ROTH, Circuit Judge:
Plaintiffs, Public Interest Research Group of New Jersey, Inc., (NJPIRG) and Friends of the Earth, Inc., (FOE) brought a citizen suit pursuant to the Federal Water Pollution Control Act (Clean Water Act or Act), 86 Stat. 816, 33 U.S.C. § 1251 et seq., against defendant Hercules, Inc. Pursuant to the Act, plaintiffs notified Hercules, the United States Environmental Protection Agency (EPA), and the New Jersey Department of Environmental Protection and Energy (NJDEPE) that they intended to sue Hercules for alleged violations of its federal and state permits, limiting effluent discharge from its Gibbstown, New Jersey, facility.
Plaintiffs’ notice letter claimed that Hercules committed sixty-eight discharge violations from April 1985 through February 1989. A discharge violation involves the release of a pollutant into receiving waters, which release exceeds the quantity, discharge rate, or concentration of the pollutant allowed by the permit. In accord with the citizen suit provision of the Act, plaintiffs waited 60 days and then filed a complaint in federal district court, alleging that Hercules had violated its permit. Plaintiffs attached to the complaint a list of eighty-seven discharge violations. This list omitted several of the originally cited violations and included more than thirty new ones. A majority of the new violations pre-dated the 60-day notice letter; the remainder post-dated it.
Between the time plaintiffs filed their complaint and moved for summary judgment, they supplemented the list of alleged permit violations, committed by Hercules, to include a total of 114 discharge violations, 328 monitoring violations, 58 reporting violations, and 228 recordkeeping violations. At no time prior to plaintiffs’ motion for summary judgment did plaintiffs supply Hercules, EPA or the State of New Jersey (State) with a new notice letter pursuant to the Act. Hercules filed a cross-motion for summary judgment, seeking to dismiss all violations not listed in plaintiffs’ notice letter. The violations Hercules sought to dismiss included a majority of the discharge violations and all of the monitoring, reporting and recordkeeping violations.
The district court granted summary judgment for Hercules as to all pre-complaint discharge violations not listed in the notice letter and as to all monitoring, reporting and recordkeeping violations. The court granted summary judgment for plaintiffs as to forty-three discharge violations listed in the notice letter and included in the complaint and as to seventeen post-complaint discharge violations of the same type as those included in the notice letter.
Both parties sought interlocutory review of the district court’s decision to grant summary judgment on certain claims and to dismiss others; review was granted. For the reasons stated below, we will affirm the decision of the district court in part, we will reverse it in part, and we will remand this ease for further proceedings consistent with this opinion.
I.
The Clean Water Act makes it unlawful to discharge any pollutant into the nation’s waters except those discharges made in compliance with the Act. 33 U.S.C. § 1311. In 1975, the federal government issued a National Pollutant Discharge Elimination System (NPDES) permit to Hercules. 33 U.S.C. § 1342. This permit authorized Hercules to discharge certain pollutants from its Gibbstown facility into the Delaware River (outfall 001) and into Clonmell Creek (outfall 002) in strict compliance with conditions specified in the permit. In addition to establishing limits on effluent discharges, the permit required Hercules to monitor its effluent and to submit reports of the results. 33 U.S.C. § 1342(a)(2). The Act requires that such reports, known as Discharge Monitoring Reports (DMRs), be made available to the public. 33 U.S.C. § 1318(b); 40 C.F.R. § 122.41®, (l).
The Clean Water Act allows each state to establish and administer its own permit program, provided that the program meets the requirements established under the Act and is approved by the EPA. 33 U.S.C. § 1342(b). In 1982, the EPA authorized New Jersey to administer a state permit program. After assuming this responsibility, NJDEPE issued a modified Pollutant Discharge Elimination System permit to Hercules for the Gibbstown facility (NJPDES Permit No. NJ 0005134). This permit established monitoring and reporting requirements similar to those of Hercules’ NPDES permit. 40 C.F.R. § 123.25. Under both federal and state law, Hercules was required to make its DMRs available to the public.
The NJPDES permit established the same two outfalls: outfall 001 into the Delaware River and outfall 002 into Clonmell Creek. The permit established discharge limits and monitoring requirements for designated parameters at each outfall, with each parameter defined as a particular attribute of a discharge. Parameters under the Hercules permit included specific pollutants (such as fecal coliform) and discharge characteristics or water quality indicators (such as the color or pH value of the sample or the biochemical oxygen content). The permit established strict limits on these parameters, both as to the overall amount of the pollutant and as to the concentration of the pollutant or water quality.
The Clean Water Act provides that federal or state authorities may take enforcement action against a permit holder who fails to comply with specified permit conditions. 33 U.S.C. §§ 1319 and 1342(b)(7). In addition, the Act provides that private citizens may commence civil actions in certain situations against a permit holder who fails to comply with the Act. 33 U.S.C. § 1365. If the citizen prevails, the court may order injunc-tive relief and/or impose civil penalties which are payable to the United States.
Following a review of Hercules’ DMRs on file with the federal government, NJPIRG notified Hercules, EPA, and the State of its intent to file suit under the citizen suit provision of the Act for Hercules’ alleged violation of its permits. Plaintiffs’ March 21, 1989, notice letter listed sixty-eight discharges which plaintiffs claimed had occurred from April 1985 through February 1989 in violation of Hercules’ permits.
Plaintiffs’ notice letter alleged that Hercules violated its permit for the parameters of biological oxygen demand, total residual chlorine, chemical oxygen demand, total suspended solids, phenol, fecal coliform, and bioassay at outfall 001 and the parameters of pH, phenol, chemical oxygen demand, and total suspended solids at outfall 002. The notice letter listed permit violations only in the discharge of a particular pollutant; it did not list any violations for the monitoring required to track that pollutant or for the reporting or recordkeeping which documented the monitoring. It is the discharge violations, however, which are most easily ascertainable from the information available to the public, ie., the DMRs which Hercules must file.
Plaintiffs filed a citizen suit in federal district court on May 24, 1989, shortly after the 60-day notice period had expired. The complaint alleged eighty-seven discharge violations which had occurred from April 1985 through March 1989. Among these were more than thirty new violations which had not been included in the notice letter; a majority of the new violations pre-dated the notice letter, the remainder post-dated it.
Between the time of the 60-day notice letter on March 21, 1989, and the plaintiffs’ final submission for purposes of summary judgment on September 14, 1992, plaintiffs made numerous modifications of their list of alleged violations through “informal” amendments to their complaint. Plaintiffs added discharge violations and for the first time alleged monitoring, reporting and record-keeping violations. The majority of monitoring violations were instances when Hercules did not analyze samples before the time limit specified in the permit for holding samples had expired. Reporting violations consisted of instances when Hercules erroneously reported the kind of sample that was taken or when Hercules failed to report a discharge violation. Recordkeeping violations involved paperwork and clerical errors. Plaintiffs’ final submission to the district court alleged that Hercules had committed 114 discharge violations, 328 monitoring violations, 58 reporting violations, and 228 recordkeeping violations. Plaintiffs did not send a new 60-day letter, giving notice of these additional violations, nor did plaintiffs formally amend their complaint to include them.
Following receipt of the plaintiffs’ original 60-day notice letter, but prior to the district court’s decision in this matter, Hercules received a Notice of Civil Penalty Assessment from the State for violations of its permit. In March 1991, Hercules and the State executed an Administrative Consent Order (ACO) under which Hercules agreed to pay the State $600,000 as a penalty for 115 discharge violations of its permit which had occurred between March 1985 and August 1990. All but two of the discharge violations addressed in the ACO were included among the discharge violations alleged by the plaintiffs in their final submission to the district court. In other words, of the 115 discharge violations which served as the basis for the imposition of the $600,000 penalty by the State, 113 were included in the plaintiffs’ final submission to the district court.
A District Court Opinion
Plaintiffs moved for partial summary judgment as to liability and for permanent injunc-tive relief, enjoining Hercules from future violations of the Clean Water Act. Hercules filed a cross-motion for summary judgment, asserting that plaintiffs had failed to comply with the 60-day notice provision of the Act.
The district court examined the plaintiffs’ 60-day notice letter and compared it to the final list of alleged violations submitted by plaintiffs. Finding that the notice letter did not notify Hercules, the EPA, or the State of plaintiffs’ intent to sue for monitoring, reporting and recordkeeping violations, the district court granted summary judgment for Hercules on all of these violations. 830 F.Supp. 1525, 1534 (D.N.J.1993) (“In sum, there has never been a statutory notice letter in this case that alleged a specific monitoring, reporting, or recordkeeping violation, so all of the alleged monitoring, reporting, and recordkeeping violations must be dismissed.”).
The district court then placed the discharge violations into three categories: (1) discharge violations included in both the notice letter and the final list; (2) pre-complaint discharge violations not included in the notice letter but included in the final list; and (3) post-complaint discharge violations included in the final list. Finding that plaintiffs had complied with the Act’s notice requirement for the violations in category one, the district court denied Hercules’ summary judgment motion regarding them. As for the violations in category two, the court granted Hercules’ summary judgment motion, holding that plaintiffs had failed to comply with the Act’s notice requirement. Id. at 1534 (“those violations which in fact occurred before the complaint was filed on May 24, 1989 cannot be sued upon unless first noticed in compliance with 33 U.S.C. § 1365 and the accompanying regulations codified at 40 C.F.R. § 135.3”). With regard to category three, the court found no statutory requirement that defendants first be notified by plaintiffs of their intent to sue. It, therefore, granted summary judgment for plaintiffs on these violations.
In support of its decision to distinguish between category two violations and category three violations, the district court, citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), wrote that: “[Subsequently occurring violations not noticed in a citizen’s 60-day notice letter were specifically contemplated — indeed required— by the Supreme Court as a prerequisite to a district court’s jurisdiction over a citizen suit under the Clean Water Act.” 830 F.Supp. at 1534. The court held that such post-complaint violations, being “the ‘type of activity' (e.g., discharging pollutants in excess of permit limitations) as have been alleged in the notice letter!,]” survived defendant’s summary judgment motion. Id. After reviewing the evidence on violations in categories one and three, a total of 70 violations, the court granted summary judgment (with respect to liability only) in favor of plaintiffs on 60 of these.
In sum, the district court held that, under the Act’s notice requirement, the plaintiffs could sue only for those discharge violations that were included in their notice letter or that occurred after the complaint was filed and were a continuation of the same type of violation as contained in the notice letter. The only issue remaining for trial would then be a determination of the size of the penalty for the established discharge violations.
B. District Court Order on Interlocutory Appeal
Following the district court’s order granting in part and denying in part the parties’ motions for summary judgment, plaintiffs sought entry of final judgment under Fed. R.Civ.Pro. 54(b) as to those claims dismissed by the court. 830 F.Supp. 1549,1553 (D.N.J. 1993). In the alternative, plaintiffs sought certification, for purposes of an interlocutory appeal, of the court’s interpretation of the Act’s 60-day notice requirement. 28 U.S.C. § 1292(b) (establishing a district court’s authority to certify a controlling question of law for interlocutory appeal).
Defendants filed a cross-motion, seeking certification under § 1292(b) on the question of whether the district court erred in failing to dismiss the post-complaint discharge violations. After considering and rejecting plaintiffs’ motion for final judgment as to the dismissed violations, the court granted plaintiffs’ motion and defendant’s cross-motion for certification of a question of law for interlocutory appeal. The court certified the question of law as:
Whether this court correctly decided, pursuant to section 505(b)(1) of the Clean Water Act, as amended, 33 U.S.C. § 1365(b)(1) and the accompanying regulations at 40 C.F.R. § 135.3, that where plaintiffs have given notice of intent to sue for various discharge violations but no other type of violation (ie., monitoring, reporting or recordkeeping) this court’s subject matter jurisdiction includes the noticed violations and any post-complaint continuing violations of the same type as those for which notice was given, but not unnoticed pre-complaint violations, nor post-complaint violations of a different type from those for which notice was given.
Id. at 1560.
II.
The district court had jurisdiction over this citizen suit pursuant to 33 U.S.C. § 1365. Following the district court’s order certifying a question of law for interlocutory appeal, we granted both parties permission to appeal pursuant to 28 U.S.C. § 1292(b). Our review is limited to the question of law raised in the district court’s order, Dailey v. National Hockey League, 987 F.2d 172, 175 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 67, 126 L.Ed.2d 36 (1993), and our review is plenary. Louis W. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 766 (3d Cir.1994).
III.
The Clean Water Act authorizes a citizen (defined as a person or persons having an interest which is or may be adversely affected) to bring suit in federal court against any person who is alleged to be in violation of “an effluent standard or limitation” as defined in the Act or “an order issued by the [EPA] Administrator or a State with respect to such a standard or limitation.” 33 U.S.C. § 1365(a)(1). In order to commence a suit, a citizen must comply with § 1365(b), which states in part:
No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order.
33 U.S.C. § 1365(b).
In crafting the citizen suit provision, Congress sought to “strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits.” Hallstrom v. Tillamook County, 493 U.S. 20, 29, 110 S.Ct. 304, 310, 107 L.Ed.2d 237 (1989) (analyzing the legislative history of the citizen suit provision of the Clean Air Amendments of 1970, which served as the precursor to analogous citizen suit provisions in the Clean Water Act and the Resource Conservation and Recovery Act of 1976). The Supreme Court stated in Hallst-rom:
Requiring citizens to comply with the notice and delay requirements serves this congressional goal in two ways. First, notice allows Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60 [108 S.Ct. 376, 383, 98 L.Ed.2d 306] (1987) (“The bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action”). In many cases, an agency may be able to compel compliance through administrative action, thus eliminating the need for any access to the courts. Second, notice gives the alleged violator “an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.” Gwaltney, supra, at 60, 108 S.Ct. at 383.
Id. (citation omitted). Either of these resolutions, as cited in Hallstrom, whether by agency action compelling compliance or by self-compliance on the part of the violator, will halt the discharge of the pollutant — the ultimate purpose of the Act. If the violation continues, however, the citizen suit will be the vehicle to achieve compliance.
With that purpose in mind for citizen suits, Congress then delegated to the EPA the task of determining the form of the notice letter. Subsection 1365(b) provides that “[n]otice under this subsection shall be given in such manner as the [EPA] Administrator shall prescribe by regulation.” The legislative history indicates that Congress sought here to strike a balance between providing notice recipients with sufficient information to identify the basis of the citizen’s claim and not placing an undue burden on the citizen.
[S]uch regulations should reflect simplicity, clarity, and standardized form. The regulations should not require notice that places impossible or unnecessary burdens on citizens but rather should be confined to requiring information necessary to give a clear indication of the citizens’ intent. These regulations might require information regarding the identity and location of the alleged polluter, a brief description of the activity alleged to be in violation, and the provision of law alleged to be violated.
S.Rep. No. 92-414 at 80 (1971), 92d Cong. 1st Sess., reprinted in 2 Legislative History of the Water Pollution Control Act Amendments of 1972 at 1498 (1973), U.S.Code Cong. & Admin.News 1972, pp. 3668, 3745 (hereinafter Leg.Hist.).
Pursuant to the statutory directions, EPA drafted a regulation, 40 C.F.R. § 135.3(a), which prescribed the contents of a notice letter:
Violation of standard, limitation or order. Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.
In the present dispute, Hercules does not contend that plaintiffs failed to send a 60-day notice letter. Rather, Hercules asserts that plaintiffs’ 60-day notice letter lacked the specificity, required by the Act and its regulation, to put the recipients of the letter on notice of the violations upon which plaintiffs intended to sue. The district court agreed, holding that plaintiffs’ 60-day notice letter failed to satisfy the “more specific, detailed requirements” of the regulation. 830 F.Supp. at 1532. In making this assessment, the court stated, in the words of the regulation, that except for the sixty-eight discharge violations, plaintiffs’
notice letter fails to “identify the specific standard, limitation or order alleged to have been violated” — which means the permit requirement which has been violated. The notice letter fails to identify “the activity alleged to constitute a violation” — such as failure to test or report or keep adequate records, for example. The notice letter was also deficient as to unlisted violations by not giving the “date or dates of such violation,” all as required in 40 C.F.R. § 135.3(a). Each of these provisions is a component of statutory “notice of the alleged violation” as a prerequisite to suit under § [13651(b)(1) of the Act.
Id. The district court went on to find that the notice letter was also deficient under the language of the statute:
That each of the violations alleged in the Complaint must have been stated in the sixty-day notice letter likewise is compelled by the statute’s plain language, because § [1365(b)(1) ] requires not just notice of an alleged violation, but “notice of the violation.” (Emphasis added.) Congress could not have chosen clearer language to express the requirement that the Complaint will be limited to the violations listed in the sixty-day notice letter.
Id.
We disagree with the district court’s reading of both the statute and the regulation. Under the district court’s construction, the burden is placed on the citizen to identify not only the specific standard, limitation, or order alleged to have been violated but also the “activity,” i.e., any aspect of tracking and recording a pollutant discharge that may constitute a violation. The district court also placed the burden on the citizen to identify every pre-complaint date on which there was an excess discharge of a designated pollutant.
While there is no doubt that such detailed information is helpful to the recipient of a notice letter in identifying the basis for the citizen suit, such specificity is not mandated by the regulation. The regulation does not require that the citizen identify every detail of a violation. Rather, it states that “[njotice regarding an alleged violation ... shall include sufficient information to permit the recipient to identify” the components of an alleged violation. 40 C.F.R. § 135.3(a) (emphasis added).
We read the regulation to require just what it says: that the citizen provide enough information to enable the recipient, i.e., Hercules, EPA and/or the State, to identify the specific effluent discharge limitation which has been violated, including the parameter violated, the date of the violation, the outfall at which it occurred, and the person or persons involved.
In this regard, because a permit violation occurs through an excess discharge of a pollutant into the water and because compliance with a permit limitation is tracked through monitoring, reporting and record-keeping, we conclude that a monitoring, reporting and recordkeeping violation, which is an aspect of the permit requirement involved in a noticed discharge violation, should be an element of that same overall episode. Once the discharge violation is noticed, any subsequently discovered monitoring, reporting or recordkeeping violation that is directly related to the discharge violation may be included in the citizen suit.
A general notice letter that fails sufficiently to inform its recipients of the violations upon which a citizen intends to bring suit will not conform to the Act’s requirement. However, the citizen is not required to list every specific aspect or detail of every alleged violation. Nor is the citizen required to describe every ramification of a violation. If an excessive discharge is noticed and it is later discovered that monitoring for that parameter at that outfall on that day was also faulty, we conclude, pursuant to the language of the regulation, that sufficient notice has been given of the monitoring violation to include it in the suit. Similarly, if a violation of monitoring for a specific parameter is noticed and it is later discovered that a discharge violation of that parameter also occurred at that outfall on that day, we find that sufficient notice has been given of the discharge violation to include it in the suit. We come to this determination because, in investigating one aspect of a parameter violation, such as a discharge, the other aspects of that violation, for instance monitoring, reporting, and recordkeeping requirements for that parameter, will of necessity come under scrutiny. We find that notice of one facet of an effluent infraction is sufficient to permit the recipient of the notice to identify other violations arising from the same episode.
Moreover, unlike the district court, we do not read § 1365 to compel a finding that a citizen must give notice to recipients of each individual violation of a specific discharge limitation. For example, if a permit holder has discharged pollutant “x” in excess of the permitted effluent limit five times in a month but the citizen has learned only of four violations, the citizen will give notice of the four violations of which the citizen then has knowledge but should be able to include the fifth violation in the suit when it is discovered. Whether the agency or the permit holder is informed of four or five excess discharges of pollutant “x” will probably make no difference in a decision to bring about compliance. If the agency or the permit holder decides, however, not to comply, there seems to be nothing gained by requiring the citizen to file a new notice letter in order to include a fifth violation in the suit. A literal reading of the statute requires that the citizen identify discharges in excess of the effluent limit, but not necessarily each individual excess.
Hercules contends, however, that notice of each individual violation is necessary in order for the recipients of the notice to evaluate the extent of the citizen’s claim. Hercules suggests, for example, that whereas the EPA or the State might not pursue an enforcement action against an alleged violator with a small number of individual violations, the government would be more likely to act if each individual violation were included in the notice. Similarly, the larger the number of cited violations, the greater incentive for the permit holder to try to comply.
Hercules’ argument ignores the fact that both the federal and state government enforcement agencies have access to the DMRs. Both the Clean Water Act and the New Jersey permit program require that a permittee file DMRs with the EPA and the NJDEPE. The DMRs filed by Hercules list the discharge violations. Once a notice letter from a citizen has been received, the EPA and the State can, with relative ease, check for other discharge violations of the same type. Moreover, as the author of the DMRs, Hercules is surely on notice of the contents of the reports and of the frequency of similar violations.
The district court and Hercules also place great rebanee on Hallstrom for their interpretation of the statute and regulation. The Supreme Court held in Hallstrom that “the notice and 60-day delay requirements are mandatory conditions precedent to commencing suit under the RCRA [Resource Conservation and Recovery Act of 1976] citizen suit provision; a district court may not disregard these requirements at its discretion.” 493 U.S. at 31, 110 S.Ct. at 311. Hercules and the district court would have us read Hallst-rom broadly, extending the Supreme Court’s interpretation of the notice and 60-day delay requirements to a ruling on the contents of a notice.
We decline to apply Hallstrom so broadly. The Supreme Court’s focus in Hallstrom was on the timing of the notice, not on its contents. First, while the literal reading of the statute clearly compels the Court’s interpretation of the 60-day delay requirement, there is no express requirement in the statute pertaining to the content of a notice letter. In fact, as we have noted, Congress delegated to the EPA the authority to determine the necessary contents of a notice letter.
Second, the Court in Hallstrom saw no need even to refer to the regulation. The dispute there involved whether notice and delay were preconditions to suit, not whether the extent of the notice was adequate. See also Dague v. City of Burlington, 935 F.2d 1343, 1352 (2d Cir.1991) (“the city argues that the plaintiffs’ notice did not comply with the content requirements of the statutory and regulatory notice provisions, thus mandating dismissal under Hallstrom. In the first place, Hallstrom did not address such technical criteria”), rev’d, in part, on other grounds, — U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).
This conclusion does not mean, however, that Hallstrom is not helpful in our analysis of the notice requirement. In deciding whether the plaintiffs here complied -with the content requirements established under the regulation, we must consider whether their notice letter served the purpose that Congress intended: To provide the recipient with effective, as well as timely, notice. Hallst-rom ’s analysis of Congress’ intent in crafting the citizen suit provision, see supra pages 1246-47, makes clear that not only is the 60-day notice before filing suit “a mandatory, not optional, condition precedent for suit,” 493 U.S. at 26, 110 S.Ct. at 309, but also that the content of the notice must be adequate for the recipients of the notice to identify the basis for the citizen’s complaint.
The ultimate goal of a citizen suit is to bring the alleged violator into compliance with the nation’s environmental laws. This can be achieved through citizen enforcement efforts, government enforcement efforts, or self-enforcement efforts. In this regard, the Senate Report noted: “[t]he Committee intends the great volume of enforcement actions be brought by the State [rather than the federal government].... It should be noted that if the Federal, State, and local agencies fail to exercise their enforcement responsibility, the public is provided the right to seek vigorous enforcement action under the citizen suit provisions.” S.Rep. No. 92-414 at 64, 2 Leg.Hist. at 1482 U.S.Code Cong. & Admin.News 1972 at 3730.
Moreover, we note the Supreme Court’s statement in Gwaltney that “[t]he bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action.” 484 U.S. at 60, 108 S.Ct. at 383. In deciding whether to initiate an enforcement action, the EPA and the state must be provided with enough information to enable them intelligently to decide whether to do so. At the same time, the alleged violator must be provided with enough information to be able to bring itself into compliance. We will judge the sufficiency of the plaintiffs’ 60-day notice letter in terms of whether it accomplishes these purposes.
IV.
Applying these legal precepts to the present dispute, we will analyze the violations in following order: (A) pre-complaint discharge violations, (B) post-complaint discharge violations, and (C) monitoring, reporting and recordkeeping violations.
A. Pre-Complaint Discharge Violations
The district court held that pre-complaint discharge violations not included in plaintiffs’ notice letter cannot be included in the suit unless listed in a subsequent notice. For this reason, the district court granted defendant’s summary judgment motion as to forty-four pre-complaint discharge violations. We do not agree.
For the reasons stated in Part III, supra, we hold that a notice letter which includes a list of discharge violations, by parameter, provides sufficient information for the recipients of the notice to identify violations of the same type (same parameter, same outfall) occurring during and after the period covered by the notice letter.
The facts of this dispute support this holding. Less than two months after receiving the plaintiffs’ 60-day notice letter, the State filed a Notice of Civil Penalty Assessment against Hercules for discharge violations of the permit. Although many of the sixty individual violations included in the State’s initial list were exactly the same violation as included in the plaintiffs 60-day notice letter, there were several that were not on the plaintiffs’ list. Some of these additional violations occurred in months during which plaintiffs did not identify any discharge violation. We infer from this comparison that the State examined Hercules’ DMRs on file to achieve a more comprehensive list of discharge violations. Almost two years later, in March 1991, Hercules and the State executed an ACO under which Hercules agreed to pay the State $600,000 as a penalty for 115 discharge violations of its permit. The fact that the State’s list of Hercules’ discharge violations grew from 60 to 115 in the final ACO demonstrates that once the State received the citizen letter noting that Hercules was violating its permit, the State committed resources to monitoring Hercules’ compliance and, in particular, to monitoring Hercules’ compliance with the noticed parameters.
We hold, therefore, that the district court erred in granting Hercules’ summary judgment motion as to the forty-four pre-com-plaint discharge violations not included in plaintiffs’ notice letter. We will remand this case to the district court to reinstate those alleged violations which are of the same type (same parameter, same outfall) as the alleged violations included in the plaintiffs’ 60-day notice letter.
B. Post-Complaint Discharge Violations
Finding that the post-complaint discharge violations included in the plaintiffs’ list were a continuation of the type of activity alleged in the notice letter and finding no legal requirement that Hercules first be notified by plaintiffs of their intention to sue upon these violations, the district court held that these violations survived defendant’s summary judgment motion.
For the most part, we agree with the district court. We hold that as long as a post-complaint discharge violation is of the same type as a violation included in the notice letter (same parameter, same outfall), no new 60-day notice letter is necessary to include these violations in the suit. In so holding, we do not in effect distinguish between pre-complaint violations and post-complaint violations.
Hercules disagrees, arguing that recipients of the notice letter may be more likely to act (i.e., the government may initiate enforcement action; the permit holder may attempt to remedy the violation) if a citizen is required to file a new notice for post-complaint violations. While it is true that the recipients may be more likely to take action as the number of violations increases, we do not find that this justifies a requirement that a new notice must be given for post-complaint violations before commencing a suit which will include these violations.
Rather, we find that the recipients of the notice are already on notice of violations of the same type, whether past or continuing. As recipients of the permittee’s DMRs, the federal and state enforcement agencies have the ability to review the permittee’s compliance. The federal and state enforcement agencies are on notice of continuing or intermittent violations of the same type because they are reported to them in the DMRs. Likewise, the permit holder is on notice of continuing or intermittent violations, given the fact that the permit holder is responsible for filing the DMRs.
The district court denied Hercules’ summary judgment motion as to all seventeen post-complaint discharge violations. A review of these seventeen discharge violations reveals that all but one involved the same type of violations as those noticed in plaintiffs’ 60-day notice letter. In other words, sixteen of the seventeen post-complaint discharge violations involved the same parameter and the same outfall as discharge violations included in the notice letter. We will affirm the district court’s decision as to these sixteen post-complaint discharge violations. As for the seventeenth violation, item 112 on plaintiffs’ final list, involving the parameter of total dissolved solids, we will remand this violation to the district court for a determination whether, under the standard outlined above, this violation was sufficiently related to the noticed violations for Hercules to be able to identify it from the notice letter.
We have found implicit support for this conclusion regarding post-complaint violations in the Supreme Court’s decision in Gwaltney. There, the Court held that federal courts do not have jurisdiction over a citizen suit for “wholly past violations.” 484 U.S. at 64,108 S.Ct. at 385. Rather, jurisdiction exists “when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation.” Id. In reaching this decision, the Supreme Court noted that “the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past.” Id. at 59, 108 S.Ct. at 382.
Gwaltney requires that for jurisdiction to attach, a citizen must make a good-faith allegation of a continuous or intermittent violation by the defendant at the time the complaint is filed. Because a citizen must delay filing suit for at least 60 days after notice has been sent, it is foreseeable that a complaint will include allegations of more recent violations in an effort to establish “continuous or intermittent violations.”
We recognize that the 60-day notice provision in the Act and the holding in Gwaltney represent “two separate jurisdictional requirements for bringing a citizen suit.” United States’ Br. as Amicus Curiae at 17. The Act requires that citizens provide a 60-day notice of intent to file suit. Gwaltney requires that a citizen’s complaint contain a good-faith allegation of continuous or intermittent violation. The dispute here involves the first jurisdictional prerequisite — the adequacy of the notice letter. Nevertheless, the basis for the Supreme Court’s decision in Gwaltney is helpful to our analysis. Continuing or intermittent violations of the same type are necessary to create jurisdiction of the citizen suit. They are perforce related to the noticed violations. For this reason, they should be easily identifiable by the notice recipient and, therefore, do not need to be noticed in a new 60-day letter.
C. Monitoring, Reporting and Recordkeeping Violations
Finding that the plaintiffs’ 60-day notice letter did not notify Hercules, EPA, or the State of plaintiffs’ intent to sue for alleged monitoring, reporting or recordkeeping violations, the district court granted Hercules’ motion for summary judgment as to all of these alleged violations. We will reverse this holding. As we set out in Part III, supra, we conclude that, when a parameter violation has been noticed, subsequently discovered, directly related violations of discharge limitations or of monitoring, reporting, and record-keeping requirements for that same parameter at that outfall for that same period may be included in the citizen suit. Monitoring, reporting and recordkeeping requirements are conditions of a permit. When plaintiffs noticed the discharge violations, an investigation by Hercules, EPA, or the State of those excess discharges should uncover related violations of monitoring, reporting or record-keeping involved in tracking those pollutant parameters.
Support for our conclusion can be found in the legislative history of the citizen suit provision which makes clear that notice serves the important functions of allowing government agencies to take responsibility for enforcing environmental regulations and giving the alleged violator an opportunity to bring itself into complete compliance. The concept of “complete compliance” should consist of the cessation of the offending discharge, with on-going discharges being monitored and recorded in accordance with the permit provisions. All these functions interact to ensure the permit holder’s compliance with the permit conditions. The proper performance of each function is required under the permit provisions and a violation of any one may subject the permit holder to a penalty.
The burden on the citizen, however, is to provide sufficient information of a violation, such as an excessive discharge, so that the permit holder and the agency can identify it. If investigation of that discharge by the agency or the permit holder uncovers directly related monitoring, reporting, or recordkeeping violations, “complete compliance” should incorporate the correction of all such interconnected violations. If the agency or the permit holder fails to achieve “complete compliance,” the citizen should be able in the citizen suit to seek “complete compliance,” eliminating all directly related violations, without the burden of further notice. Correction of an excessive discharge without correction of faulty monitoring of that parameter is not complete compliance. Correction of faulty monitoring without correction of incomplete reporting of that parameter is not complete compliance.
If, however, we were to interpret the Act in the manner proposed by Hercules, with each of these functions, monitoring, reporting, and recordkeeping, being subject to separate notice prior to that violation being included in a suit, we might find the permit holder claiming “complete compliance” when only one aspect of these interrelated violations had been corrected. We conclude that this latter result is not what Congress intended by “complete compliance.”
We will reverse the district court’s grant of summary judgment to Hercules on the monitoring, reporting, and recordkeeping violations, and we will remand that portion of the case to the district court to determine which of these violations are directly related to the discharge violations in suit and which are not. Those that are not directly related should be dismissed unless, in the interim, plaintiffs move to amend their complaint to include them in this action or move to consolidate this action with the subsequent action plaintiffs filed on June 11, 1993.
V.
In sum, we will reverse the district court’s decision to dismiss for lack of jurisdiction the forty-four pre-complaint discharge violations. On remand, the district court should reinstate those discharge violations which are of the same type (same parameter, same outfall, same time period) as the discharge violations included in the plaintiffs’ 60-day notice letter. We will affirm the district court’s decision to deny defendant’s summary judgment motion as to those post-complaint discharge violations involving the same parameter and same outfall as the discharge violations included in the notice letter. Lastly, we will reverse the district court’s decision to dismiss the monitoring, reporting and record-keeping violations and remand consideration of these violations to the district court for further proceedings consistent with this opinion.
. Plaintiff FOE joined in NJPIRG's March 21, 1989, notice letter on March 29, 1989.
. Plaintiffs' letter, which was addressed to Hercules' plant manager, EPA and the State, stated as follows:
Section 505(b) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(b), requires that 60 days prior to the filing of a citizen suit in federal district court under section 505(a) of the Act, the alleged violator, the U.S. Environmental Protection Agency, and the State in which the alleged violations occur must be given notice of the alleged violations.
The Public Interest Research Group of New Jersey, Inc., 84 Paterson Street, New Brunswick, NJ 08901 [phone number] hereby places you on notice, pursuant to Section 505(b) of the Act, 33 U.S.C. § 1365(b), that it believes that your facility in Gibbstown, New Jersey, has violated and continues to violate “an effluent standard or limitation” under Section 505(a)(1)(A) of the Act, 33 U.S.C. § 1365(a)(1)(A), by failing to comply with NPDES/NJPDES permit number NJ 0005134 in at least the instances enumerated in the attached chronological list of permit violations.
The attached list is based on available permit records on file at the offices of EPA Region 2 in New York City. In some instances, information was missing from the public files. We therefore expect to request information from your records to bridge these data gaps and to supplement the list of violations based on that information. However, we do not believe that it is necessary to provide you with additional notice concerning any supplemental violations before filing a judicial enforcement action.
We intend, at the close of the 60-day notice period or shortly thereafter, to file a citizen suit under Section 505(a) of the Act against your company for the violations at the Gibbs-town facility.
During the 60-day notice period, we would be willing to discuss a settlement of the claims in this letter. However, if you wish to pursue such negotiations in the absence of litigation, we suggest that you initiate those discussions within the next 10 days so that they may be completed before the end of the 60-day notice period. We do not intend to delay the filing of a complaint in federal court if discussions are continuing when that period ends.
. According to the record before us, plaintiffs provided the district court with the following documentation of violations: (1) 60-day notice letter, March 21, 1989 (listing 68 discharge violations); (2) Complaint filed with district court, May 24, 1989 (listing 87 discharge violations and referencing three apparent monitoring violations); (3) Plaintiffs’ second set of interrogatories, July 3, 1990 (listing 104 discharge violations); (4) Plaintiffs’ response to second set of documents requests, January 15, 1991 (listing 110 discharge violations, 31 monitoring violations, 17 reporting violations); (5) Plaintiffs’ brief in support of motion for summary judgment, February 15, 1991 (listing 130 discharge violations, 406 monitoring violations, 12 reporting violations); (6) Plaintiffs' reply brief in support of motion for summary judgment, May 30, 1991 (listing 120 discharge violations, 352 monitoring violations, 58 reporting violations); (7) Plaintiffs' letter to district court clarifying for court alleged violations for purposes of summary judgment, September 14, 1992 (listing 114 discharge violations, 328 monitoring violations, 58 reporting violations, 228 recordkeeping violations).
. Of the 114 discharge violations included in plaintiffs' final list, 61 were not included in the original notice. A substantial majority of the newly listed violations, 57 of the 61, involved the same parameter at the same outfall as the violations included in the notice letter but occurred on different dates. Of the other four, one involved the same parameter (pH) but a different outfall, and the remaining three involved new parameters (color and total dissolved solids) (items 48, 60, 79, and 112 on the plaintiffs' final list).
.On April 7, 1993, subsequent to the district court's March 31, 1993, ruling, plaintiffs filed a new 60-day notice letter citing the alleged monitoring, reporting and recordkeeping violations dismissed by the court. On June 11, 1993, plaintiffs filed a new complaint in district court which included the violations listed in the new notice letter. On July 2, 1993, plaintiffs filed another 60-day notice letter citing many of the discharge violations dismissed by the court. This letter stated that at the end of 60 days, plaintiffs intended to file a motion with the district court to amend their original complaint to include these alleged discharge violations.
. In addition to asserting in district court that plaintiffs' notice letter failed to comply with the law, Hercules argued that as a matter of equity the district court should not impose fines for those discharge violations which were the subject of the State penalty and, in the alternative, that as a matter of law the fine already paid by Hercules was an adequate remedy. The district court rejected these arguments. These questions are not included as a part of the interlocutory appeal and we will not address them.
. Of the 114 alleged discharge violations, 53 were in category one, 44 were in category two, and 17 were in category three.
. Of the total 114 discharge violations: Summary judgment was granted in favor of plaintiffs on 60; 44 were dismissed on the basis that no notice was provided by plaintiff; four were dismissed on the basis that Hercules had established an "upset” defense; and six were left for later judgment. Subsequent to the district court's ruling, the parties entered into a stipulation which permanently disposed of the latter 10 discharge violations. 830 F.Supp. 1549, 1552 n. 4.
Of the 60 violations on which summary judgment was granted for plaintiffs, 43 were included in the 60-day notice letter, and 17 occurred after the complaint was filed. Of the 44 violations that were dismissed due to lack of notice, 23 occurred before the 60-day notice letter was filed, and 21 occurred after the notice was filed.
. The House Report accompanying the Clean Water Act amendments noted that the regulations promulgated by the EPA Administrator:
should be issued as soon as possible after enactment of this legislation and, although not placing unnecessary or impossible burdens on complainants, should require information regarding the identity and location of the alleged polluter, a brief description of the activity alleged to be in violation, [and] the provision of law alleged to be violated.
H.R.Rep. No. 92-911 at 133 (1972), 92d Cong. 2d Sess., reprinted in 1 Leg.Hist. at 820.
. The district court’s certification for this interlocutory appeal did not request review of its decision to grant summary judgment for plaintiffs as to those discharge violations included in the both the notice letter and plaintiffs' final list. We do not therefore address this aspect of the district court's opinion.
. This includes 23 pre-notice discharge violations and 21 post-notice discharge violations.
. The district court did not indicate why it grouped post-notice/pre-complaint violations with the pre-notice violations rather than with the post-complaint violations. Under the rule we establish here, however, that distinction is not significant.
. The close interrelationship of monitoring, reporting, and recordkeeping with discharge limitations has been also been noted by the Court of Appeals for the Fourth Circuit in Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109, 1115 (4th Cir.1988), cert. denied, 491 U.S. 904, 109 S.Ct. 3185, 105 L.Ed.2d 694 (1989):
[Defendant] was bound by the reporting and records retention requirements of the NPDES permit that are central to adequate administration and enforcement of limits on substantive discharges under the Clean Water Act. Unless a permit holder monitors as required by the permit, it will be difficult if not impossible for state and federal officials charged with enforcement of the Clean Water Act to know whether or not the permit holder is discharging effluents in excess of the permit’s maximum levels.
. As we note in footnote 6, on April 7, 1993, plaintiffs filed a new 60-day letter, citing the monitoring, reporting, and recordkeeping violations and filed a new complaint including them. Thus, no further notice need be given by plaintiffs before amending their original complaint to incorporate any of these violations — or, if they prefer, moving to consolidate the two complaints.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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JORDAN, Circuit Judge.
OPINION OF THE COURT
This is a dispute about the proper allocation of costs to remediate a contaminated manufacturing site in Greenville, Pennsylvania. From 1910 until 1986, Greenlease Holding Co. ("Greenlease"), a subsidiary of the Ampco-Pittsburgh Corporation ("Ampco"), owned the site and operated railcar manufacturing facilities there. Trinity Industries, Inc. and its wholly-owned subsidiary, Trinity Industries Railcar Co. (together referred to as "Trinity"), acquired the site from Greenlease in 1986 and continued to manufacture railcars there until 2000. An investigation by the Commonwealth of Pennsylvania into Trinity's waste disposal activities resulted in a criminal prosecution and eventual plea-bargained consent decree which required, in relevant part, that Trinity remediate the contaminated land. That effort cost Trinity nearly $9 million.
This appeal arises out of the District Court's determination that, under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. , ("CERCLA"), and Pennsylvania's Hazardous Sites Cleanup Act, 35 Pa. Stat. § 6020.101 et seq ., ("HSCA"), Trinity is entitled to contribution from Greenlease for remediation costs. After eight years of litigation, and having sorted through a century of historical records, the District Court allocated 62% of the total cleanup costs to Greenlease and the remainder to Trinity. The parties filed cross-appeals challenging a number of the District Court's rulings, including its ultimate allocation of cleanup costs. For the reasons that follow, we will affirm the District Court's pre-trial rulings on dispositive motions; we will vacate its cost allocation determination; and we will remand for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
The site in question, known by the parties as the "North Plant," is a tract of land that was used as a manufacturing site by a succession of companies. Greenlease and Trinity also, at different times, operated facilities on a nearby tract of land called the "South Plant," though that property does not figure prominently in this appeal. Over time, the footprint of the North Plant grew from eleven to thirty-four acres. That industrial development, as well as the many years of manufacturing activity that occurred there, resulted in multiple releases of hazardous materials -primarily lead-into the ground.
A. The North Plant - 1898 to 1986
From at least 1898 until sometime before Greenlease's acquisition of the North Plant in 1910, Shelby Steel Tube Company owned and operated a steel tube factory on eleven acres of land that is now part of the North Plant. Over the course of its ownership, Shelby Steel deposited historic fill as it was constructing its manufacturing facilities. According to the District Court, "[h]istoric fill is 'a soil mixed with various non-native materials, including construction demolition debris, concrete, asphalt, or it could be industrial materials such as slag or ash.' " (App. at 186.) Unfortunately, historic fill often contains lead and other contaminants.
Greenlease began its manufacturing activities at the North Plant soon after acquiring the property. Between 1911 and 1922, it significantly expanded the North Plant to support its growing business of building and repairing railcars. During that expansion, Greenlease used historic fill in the foundations supporting the new structures and rail lines. Operations at the North Plant included two shops to paint the railcars, and Greenlease used a variety of toxic chemicals and lead paint during the painting process, without doing anything meaningful to collect or contain the runoff.
B. Relationship Between Greenlease and Ampco
In 1983, Ampco acquired Greenlease, but their relationship predated that acquisition. They had had three overlapping board members since 1979 and continued to do so until 1986. Other than those three shared board members and one shared officer, no other persons were employees of both Ampco and Greenlease. Greenlease employees alone "were responsible for all day-to-day operations at the North Plant, including any waste disposal, waste handling, painting, abrasive blasting, welding, and fabrication operations." (App. at 81-82.) Those employees coordinated disposal with outside contractors and communicated with the Pennsylvania Department of Environmental Protection ("PADEP") on environmental matters. Indeed, Ampco "did not employ any engineers or persons with technical experience in manufacturing that could make decisions for [Greenlease] with respect to environmental compliance or waste management." (App. at 82.) Instead, "Ampco employed only a professional staff, such as accountants, actuaries, and lawyers[.]" (App. at 82.) Ampco did provide Greenlease with advice regarding the laws and regulations related to Greenlease's waste generation, and Ampco monitored that waste generation.
The cooperation between parent and subsidiary was complete enough that Greenlease adopted a resolution declaring that any action taken by Ampco that it "may think necessary and desirable to take on behalf of [Greenlease] shall be deemed to be the action of [Greenlease's Board]." (App. at 72 (citation omitted).) Ampco also asserted the right to approve Greenlease's expenditures that exceeded a certain amount, though Greenlease was solely responsible for placing and paying any purchase orders. In addition, Ampco provided certain services to Greenlease to minimize costs, including overseeing a single retirement plan and providing centralized financial planning and master insurance policies.
C. Trinity's Acquisition of the North Plant
In 1986, Ampco authorized the Greenlease board of directors to sell the North Plant to Trinity. The Purchase and Sale Agreement between Trinity and Greenlease (the "Agreement") included a clause declaring that Greenlease "makes no representation or warranty regarding compliance with the Environmental Protection Act, any other environmental laws or regulations or any hazardous waste laws or regulations (collectively, 'Environmental Laws')." (App. at 199.) Mutual indemnification provisions specific to environmental liabilities provided, in pertinent part:
[Greenlease] agrees to indemnify and hold harmless [Trinity] against Damages arising out of or related to violations of Environmental Laws, which were caused by [Greenlease] or its predecessors in title to the assets at the [North Plant] on or prior to the date of Closing. [Trinity] agrees to indemnify and hold harmless [Greenlease] against Damages arising out of or related to violations of Environmental Laws, which are caused by [Trinity] or its successors in title to the assets at the [North Plant] after the date of the Closing. It is the intention of the parties that liability under this Section for any condition that is caused by the acts of [Greenlease] or its predecessors in title to the assets prior to the date of the Closing and by the acts of [Trinity] or its successors in title to the assets after the date of Closing shall be allocated between the parties in a just manner taking into account degree of fault, period of violation and other relevant factors.
(App. at 61 (some alterations in original).) Those indemnities were stated to be effective for only three years after the closing of the property sale. The Agreement further provided that Trinity "has not assumed, and expressly denies assumption hereby of, any other liability, obligation or commitment of [Greenlease] other than as set forth above or otherwise expressly set forth herein." (App. at 60-61 (alteration in original).) Finally, a "[n]on-waiver of [r]emedies" clause in the Agreement provided that "[t]he rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies which the parties hereto may otherwise have at law or in equity." (App. at 62.)
Following the 1986 sale of the North Plant to Trinity, Greenlease continued to exist only as a "shell holding company without any [employees,] business activities, for profit activities, or other commercial undertakings[.]" (App. at 89.) Its assets decreased at the end of each year following the sale of the North Plant, from about $51 million in 1987 to $658,594 in 1990. In the third and fourth years following the sale of the North Plant to Trinity, Greenlease issued dividends to Ampco, leaving Greenlease with only a $250,000 reserve for liabilities. At that time, Greenlease had no known liabilities beyond the reserve. The executive vice president and chief administrative officer for Ampco, who was also an officer and director of Greenlease, stated that it was common for dividends to be made from a subsidiary to Ampco after an indemnification period ended. An environmental reserve was placed on Greenlease's books when Trinity sued Greenlease and Ampco.
D. The North Plant - 1987 to 2004
After purchasing the North Plant, Trinity continued the manufacture of railcars there. In one of the paint shops, it installed concrete floors and used tar paper to capture paint drippage. Beginning in late 1987, it implemented a policy preventing the use of metal-containing paints at the North Plant. In 1994, Trinity removed the second paint shop, excavated the old dirt floors, and dumped the soil onto a field at the South Plant. Trinity then erected a new paint shop at the North Plant.
Six years later, in 2000, Trinity ceased the North Plant operations. It sold the property in 2004 to a third-party (the "Buyer"). In connection with that sale, Trinity did not conduct an environmental assessment to determine whether the soil was contaminated, and it prohibited the Buyer from performing such testing without its consent. The Buyer demolished almost all of the existing buildings at the North Plant to sell the scrap steel for profit. Trinity maintains that, at some point, the Buyer dumped onto the North Plant property hazardous chemicals and waste that had been produced by the demolition of the North Plant buildings, exacerbating the pre-existing environmental harm.
E. The Commonwealth's Investigation and the Consent Decree
In 2004, the Commonwealth of Pennsylvania and PADEP began an investigation into allegations that Trinity had improperly disposed of hazardous waste at the North Plant. The Commonwealth filed a criminal complaint against Trinity in 2006, raising three felony counts and eight misdemeanor counts related to the illegal handling and disposal of hazardous waste. Trinity entered into a plea agreement with the Commonwealth that required the repayment of investigative costs, payment of a fine, contribution to a nonprofit organization, and, pursuant to a consent decree authorized by PADEP (the "Consent Decree"), the remediation of environmental contamination.
The Consent Decree stated that further investigation of the North Plant was "necessary to fully identify the nature and extent of the release of hazardous substances at and/or potentially migrating from the North Plant ... and to determine the Response Actions necessary to remediate the hazardous substances at and/or potentially migrating from [the North] Plant." (App. at 513.) The cleanup was governed by Pennsylvania's Land Recycling and Environmental Remediation Standards Act, 35 Pa. Stat. § 6026.101 et seq. , commonly known as "Act 2," and the associated investigation was not limited to the time during which Trinity owned and operated the North Plant.
Trinity was on a short leash. It was ordered to get approval from PADEP before it took any "significant step" pertaining to the property, and it was required to submit to PADEP "an investigation work plan, a supplemental investigation work plan, a notice of intent to remediate, a remedial investigation report, a proposed cleanup work plan, a supplemental cleanup work plan, and a final report." (App. at 213-14.) Those additional mandates increased the difficulty and expense of the remediation project. The remediation efforts were also affected by the fact that "[t]he North Plant was a 'high profile, high visibility location' " and is bordered by residential communities on three sides. (App. at 218 (citation omitted).)
PADEP approved Trinity's remedial investigation work plan in 2007. Trinity later sent Greenlease a pre-suit notice describing the contamination and its legal position that Greenlease had contributed to the pollution.
F. Trinity's Cleanup of the North Plant
To perform the necessary cleanup, Trinity had to buy back the North Plant. It then selected Golder Associates, Inc. ("Golder") to perform, direct, and supervise the cleanup operations. PADEP approved that selection. Trinity did not employ a competitive bidding process to select Golder because it had been impressed by Golder's cleanup operations at several other sites and because the Consent Decree's deadlines created an urgency to get a remediation consultant in place as soon as possible. Trinity and Golder agreed to an "open billing" process that provided Golder would be paid only for the work it ultimately needed to perform. (App. at 218-19.) Billing was on a "cost plus 10 percent" basis, which gave Golder a ten percent markup on the expenses it incurred. (App. at 219.)
Golder's cleanup efforts required it to first identify areas of the property that were of concern. It analyzed available historical information concerning construction and manufacturing activities that had taken place at the North Plant. It then conducted soil sampling to further identify areas requiring remediation. Golder ultimately divided the North Plant into twenty impact areas that required remediation. Thirteen of the twenty impact areas were primarily contaminated by lead. The remaining impact areas were primarily contaminated by volatile and semi-volatile organic compounds and a variety of other hazardous substances. Major remediation activities included excavating contaminated soil, refilling excavated areas with clean material, chemically treating contaminated soil, transporting excavated soil to appropriate landfills, and placing asphalt caps over parts of the North Plant. In total, Golder disposed of approximately 39,000 tons of soil off-site and capped about 15,000 tons of soil with asphalt.
Those efforts cost nearly $9,000,000 and made the property usable again. Parts of the North Plant with asphalt caps are suitable for use as a parking lot. Other areas are suitable for industrial or commercial use. There is ongoing work at the North Plant to ensure that the safety mechanisms created as part of the environmental remediation continue to function.
II. PROCEDURAL HISTORY
Invoking federal and state laws, Trinity filed a complaint against Greenlease and Ampco in 2008 to defray the North Plant remediation costs. More specifically, Trinity sought cost recovery under CERCLA pursuant to 42 U.S.C. § 9607, cost recovery under the Resource Conservation and Recovery Act ("RCRA") pursuant to 42 U.S.C. § 6972(a)(1)(B), and contribution under CERCLA pursuant to 42 U.S.C. §§ 9613(f)(1) and 9613(f)(3)(B). It also brought cost recovery and contribution claims under the HSCA, as well as state common law claims for contribution and negligence per se .
A. Pre-Trial Motions and Rulings
Trinity's claims against Ampco were premised on Ampco's alleged direct or derivative liability for Greenlease's conduct at the North Plant. Upon cross motions for summary judgment on that issue, the District Court concluded that Ampco was not directly or derivatively liable for pollution at the North Plant.
Greenlease also moved for judgment on the pleadings, arguing that Trinity's claims were barred by the indemnification provisions of their Agreement. It claimed that once the mutual indemnities expired, neither party was entitled to seek compensation from the other. The District Court rejected that argument, ruling that the existence and expiration of the indemnification provisions did not prevent Trinity from seeking other remedies available at law or in equity.
Greenlease and Trinity later filed cross motions for summary judgment on Trinity's CERCLA, RCRA, HSCA, and common law claims. The District Court granted partial summary judgment for Trinity, holding as a matter of law that Greenlease was a potentially responsible person under CERCLA and the HSCA. It also granted Greenlease's cross-motion in part, granting it summary judgment on all of Trinity's claims other than those for contribution under 42 U.S.C. § 9613(f)(3)(B) and 35 Pa. Stat. § 6020.705(c)(2). The litigation proceeded to a bench trial to determine the equitable allocation of cleanup costs between the parties.
Prior to trial, Trinity tried to recoup costs associated with its cleanup of the South Plant, but the District Court concluded that Trinity was not entitled to those costs because Greenlease had never owned or operated that property or disposed of any hazardous waste at the South Plant.
B. The Parties' Cost Allocation Proposals
Trinity's and Greenlease's experts each provided the District Court with a proposal for the equitable allocation of cleanup costs between the parties. Trinity's expert, Joseph B. Gormley, Jr., relied on available historical information to identify three sources of contamination at the North Plant: volatile chemicals used in manufacturing operations; general dispersions caused by painting; and historic fill used for construction. He then employed that same historical information to assign each party a percentage of responsibility for the contamination found within each impact area. Next, Gormley analyzed the major remediation activities and associated costs required to clean up each impact area. To arrive at a total cost allocation for the major remediation activities, he multiplied the percentage of responsibility for each specific impact area by the major remediation activity costs in that specific area and added those results together. That produced an overall percentage allocation. Gormley applied that same overall percentage to general project costs not tied to any specific impact area. Ultimately, he allocated 99% of the costs to Greenlease and 1% to Trinity.
Not surprisingly, Greenlease's expert, Steven Gerritsen, proposed a very different cost allocation. He concluded that most of the lead present at the North Plant was caused by the use of historic fill rather than Greenlease's operations at the facility. He calculated that Greenlease was responsible for depositing fill on only 2.8 acres of the thirty-four acre North Plant. He opined that the rest of the fill predated Greenlease's purchase of the property and was thus not Greenlease's responsibility. Gerritsen also suggested that much of Golder's work was unreasonable and unnecessary and thus that Trinity had spent more money than it should have to perform the cleanup. Gerritsen ultimately concluded that Greenlease should be allocated only 12-13% of the cleanup costs.
C. The District Court's Cost Allocation Opinion
In an admirably thorough opinion, the District Court endeavored to make sense of the extensive record, including the competing expert contentions. It first concluded that Greenlease was not responsible for any of the contamination attributable to Shelby Steel or any other non-party because Trinity had failed to show that those parties were "unknown, insolvent, or otherwise immune from suit." (App. at 351.) The Court, however, rejected Greenlease's contention that Golder incurred unreasonable or excessive costs when performing its cleanup at the North Plant.
To assign each party a percentage of responsibility for the contamination within each impact area, the District Court relied heavily on historic maps and schematics of the North Plant. For many impact areas, the Court agreed with Greenlease that the lead contamination could be attributed solely to Shelby Steel's use of historic fill, and therefore should not be a source of liability for Greenlease. For other impact areas, the Court found that Greenlease was responsible for the deposit of historic fill, or was solely responsible for the use of volatile chemicals, and that Greenlease should thus bear full responsibility for the pollution. For the remaining impact areas, the District Court split responsibility between the parties based on the number of years that each had owned the property or on various other considerations such as known use of a specific chemical contaminant.
After determining the percentages of responsibility within each impact area, the District Court considered the major remediation activities that took place in each impact area to determine an overall allocation of cost. Though it purported to follow Gormley's methodology, the Court departed from it in an important respect: Gormley's methodology accounted for the fact that different remediation activities cost different amounts of money, whereas the District Court's methodology did not. To arrive at its cost allocation, the Court multiplied the percentage of responsibility it attributed to Greenlease by the square footage or cubic yardage involved in each remediation activity. The District Court then added the results and divided by the total square footage and cubic yardage for all remediation activities at the North Plant to arrive at the overall cost allocation percentage. By those calculations, it concluded that Greenlease was responsible for 83% of the total costs, while Trinity was responsible for 17%.
The District Court then considered a variety of equitable factors to ensure the fairness of the overall cost allocation. It ultimately reduced Greenlease's percentage of responsibility, based on three equitable factors.
First, it found that at least a portion of Trinity's remediation costs were attributable to the actions of the third-party Buyer and, in particular, the Buyer's decision to demolish buildings at the North Plant. The Court said that Trinity failed to "specify the amount of response costs it incurred to remediate the waste left at the North Plant by [the Buyer]." (App. at 380.) Therefore, "there [was] an equitable need to reduce Greenlease's percentage of responsibility for response costs to reflect an amount attributable to [the Buyer]." (App. at 380.) Accordingly, the Court reduced Greenlease's responsibility by 6%.
Second, it concluded that the existence of the indemnification provisions demonstrated the parties' intent to shift liability, so it further reduced Greenlease's share of responsibility by 5%.
Third, it recognized that the property value of the North Plant had increased as a result of remediation since the land was now suitable for some commercial or industrial uses. The Court concluded that an additional 10% reduction in Greenlease's responsibility was appropriate to account for that increased market value that would inhere to Trinity.
After accounting for those equitable deductions, the District Court determined that Greenlease was responsible for 62% of "all response costs incurred by ... Trinity ... for the cleanup at the North Plant[.]" (App. at 388-89.)
III. DISCUSSION
A. Statutory Background
Congress enacted CERCLA in 1980 "to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination." Burlington N. & Santa Fe Ry. v. United States , 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (internal quotation marks and citation omitted). Under CERCLA, a party who has paid for environmental remediation may seek to hold other potentially responsible parties ("PRPs") liable through the cost recovery mechanisms of § 107(a) or the contribution mechanisms of § 113(f) of that statute. Agere Sys., Inc. v. Advanced Envtl. Tech. Corp. , 602 F.3d 204, 216-18 (3d Cir. 2010). The remedies under those two provisions are distinct. Id. at 217 (citing United States v. Atl. Research Corp. , 551 U.S. 128, 138, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007) ). While § 107(a) authorizes complete cost recovery under a joint and several liability theory, § 113(f) permits a party to seek contribution from other PRPs following a CERCLA suit brought by a governmental authority against that first party, or after that party has resolved its "liability to the United States or an individual State through an administratively or judicially approved settlement." Id. Pennsylvania, meanwhile, enacted the HSCA in 1988 to provide additional statutory tools to deal with the improper disposal of hazardous waste within the Commonwealth. 35 Pa. Stat. § 6020.102;
Gen. Elec. Envtl. Servs., Inc. v. Envirotech Corp. , 763 F.Supp. 113, 115 (M.D. Pa. 1991).
Although Trinity initially sought both cost recovery and contribution from Greenlease, the only claims remaining on appeal are claims for contribution pursuant to CERCLA subsection § 113(f)(3)(B), and the analogous section of the HSCA, 35 Pa. Stat. § 6020.705(c)(2). See also Trinity Indus., Inc. v. Chi. Bridge & Iron Co. , 735 F.3d 131, 136 (3d Cir. 2013) (holding that a party who enters into a consent decree under state law is entitled to seek contribution under § 113(f)(3)(B) ). Because a party's "liability under the HSCA mirrors liability under CERCLA" and "the cost recovery and contribution provisions in HSCA are virtually identical to those in CERCLA," Agere Sys., Inc. , 602 F.3d at 236, our resolution of Trinity's claim for contribution under CERCLA is determinative of its companion HSCA claim.
B. Greenlease's Appeal
Greenlease raises three primary issues on appeal. First, it appeals the District Court's determination that the indemnification provisions of the Agreement between it and Trinity do not preclude Trinity from seeking contribution. We will affirm because the language of the Agreement better supports the District Court's conclusion. Second, Greenlease appeals the ruling that the costs Trinity and Golder incurred in cleaning up the North Plant were all necessary and reasonable under CERCLA. We will affirm because those costs have the requisite nexus to remedying environmental harm at the North Plant and because the record does not support Greenlease's contention that Trinity incurred excessive costs. Third, Greenlease challenges the overall cost allocation ordered by the District Court. We agree with Greenlease that the Court's cost allocation analysis was flawed, and we will therefore vacate the judgment and remand for further proceedings.
1. The Agreement's Indemnification Provisions Do Not Preclude Trinity from Seeking Contribution from Greenlease.
Greenlease argues that, at the conclusion of the three-year mutual indemnification period stated in its Agreement with Trinity, the parties were released from any subsequent statutory or common law responsibility to one another. Greenlease thus asserts that it was error to deny its motion for judgment on the pleadings. Our review of a motion for judgment on the pleadings is plenary. Caprio v. Healthcare Revenue Recovery Grp., LLC , 709 F.3d 142, 146 (3d Cir. 2013). Such a motion should not be granted unless the moving party has established that there is no material issue of fact to resolve, and that it is entitled to judgment as a matter of law. Rosenau v. Unifund Corp. , 539 F.3d 218, 221 (3d Cir. 2008). We also exercise plenary review over questions of contract interpretation. Great Am. Ins. Co. v. Norwin Sch. Dist. , 544 F.3d 229, 243 (3d Cir. 2008).
CERCLA allows parties to utilize indemnification agreements "to shift the ultimate financial loss" for environmental cleanup costs. Hatco Corp. v. W.R. Grace & Co. Conn. , 59 F.3d 400, 404 (3d Cir. 1995). The statute says plainly that it does not "bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section." 42 U.S.C. § 9607(e)(1). Whether the expiration of the indemnification provisions at issue here effectively shifted all financial burden for CERCLA cleanup costs to Trinity thus turns on the proper interpretation of the Agreement. "[A]greements among private parties ... addressing the allocation of responsibility for CERCLA claims are to be interpreted by incorporating state ... law." Hatco , 59 F.3d at 405. Here, that means Pennsylvania law.
When a contract is clear and unambiguous, Pennsylvania binds the parties to the intent contained within the writing itself. Wert v. Manorcare of Carlisle PA, LLC , 633 Pa. 260, 124 A.3d 1248, 1259 (2015). "The whole instrument must be taken together in arriving at contractual intent." Great Am. Ins. , 544 F.3d at 243 (quoting Murphy v. Duquesne Univ. of the Holy Ghost , 565 Pa. 571, 777 A.2d 418, 429 (2001) ). Courts are not to interpret one provision of the contract in a way that annuls a different provision of it, Capek v. Devito , 564 Pa. 267, 767 A.2d 1047, 1050 (2001), and "when specific or exact provisions seem to conflict with broader or more general terms, the specific provisions are more likely to reflect the intent of the parties[,]" Musko v. Musko , 548 Pa. 378, 697 A.2d 255, 256 (1997). Those interpretive rules lead us to conclude that the Agreement at issue reserved Trinity's right to seek contribution from Greenlease for environmental cleanup costs.
The Agreement's indemnification provisions stated, in relevant part, that each party indemnified the other for any "[d]amages arising out of or related to violations of Environmental Laws" and that liability for any such violations would be "allocated between the [parties] in a just manner taking into account degree of fault, period of violation and other relevant factors." (App. at 599-600.) It is true that the mutual indemnification expired after three years. The Agreement did not, however, contain language expressing the parties' intent that Trinity would assume all of Greenlease's obligations and liabilities after that three-year period. Rather, the Agreement contained explicit "non-assumption of liabilities" and "non-waiver of remedies" clauses. The "non-assumption of liabilities" clause provided that Trinity "has not assumed, and expressly denies assumption hereby of, any other liability, obligation or commitment of [Greenlease] other than as set forth above or otherwise expressly set forth herein." (App. at 567.) It is reading far too much into the words "any other liability" to think they meant that the prominent risk of environmental liability was the one thing the parties meant for Trinity to be stuck with. Moreover, the "non-waiver of remedies" clause plainly provided that "[t]he rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies which the parties hereto may otherwise have at law or in equity." (App. at 612-13.) The express language of the contract, therefore, provides both that Trinity did not assume any of Greenlease's liabilities or obligations following the three-year mutual indemnification period, and that Trinity did not waive its statutory rights under CERCLA and the HSCA to seek contribution from Greenlease. In short, while the contractual right to indemnification ended, all other rights remained.
Greenlease's three primary arguments to the contrary do not persuade us. First, Greenlease argues that the indemnification provision should control our interpretation of the entire Agreement because it is more specific than the "non-waiver of remedies" clause. That reasoning, however, puts too high a premium on specificity. Yes, the contractual indemnity is specific. But the non-assumption of liabilities and non-waiver of remedies provisions are plain enough for us to discern the intent of the parties, and that intent was to preserve non-contractual rights. Besides, there is a sense in which the indemnification language is not more specific than the other relevant provisions: it does not address the parties' liabilities after the first three years following the sale. The "non-assumption of liabilities" and "non-waiver of remedies" clauses do. They are not time limited and therefore can be understood as specifically addressing the time period after the expiration of the contractual indemnities. We will not construe the indemnification provision to cover time periods that, by the plain language of the contract, it does not cover. See Jacobs Constructors, Inc. v. NPS Energy Servs., Inc. , 264 F.3d 365, 373 (3d Cir. 2001) ("[B]ecause the nature and purpose of any indemnity agreement involves the shifting and voluntary assumption of legal obligations, they are to be narrowly construed.").
Second, Greenlease argues that allowing Trinity to seek contribution against it pursuant to the "non-waiver of remedies" clause "renders the environmental indemnity provision meaningless[.]" (Green. Opening Br. at 36.) But that argument again ignores the critical fact that the parties, by agreeing to the three-year mutual indemnification provision, granted to each other certain contractual rights separate and distinct from any statutory, legal, or equitable rights or remedies. The "non-waiver of remedies" clause is perfectly clear in that regard, reserving to both parties "any rights or remedies which the parties ... may otherwise have at law or in equity." (App. at 613.) As the District Court concluded, the contractual remedies created by the indemnification provision were, by the terms of the Agreement, "cumulative" and not "exclusive" of the remedies available at law or in equity. (App. at 66, 613.) Greenlease could have bargained for a provision in the Agreement whereby Trinity would have assumed all of Greenlease's obligations and liabilities following the expiration of the three-year indemnification provision. But it did not.
Third, Greenlease relies on Keywell Corporation v. Weinstein , 33 F.3d 159 (2d Cir. 1994), a decision by the United States Court of Appeals for the Second Circuit, to argue that all CERCLA and HSCA liability automatically transferred to Trinity after the expiration of the three-year mutual indemnification provision. There are, though, important differences between the contract at issue in Keywell and the Agreement here that are sufficient to make that case inapposite. The corporate plaintiff in Keywell sought to recover CERCLA cleanup costs from two individual defendants, who had been officers of the corporation that sold the relevant piece of land to the plaintiff. Id. at 160. The purchase agreement for the land included a two-year indemnification provision guaranteeing to hold the plaintiff harmless for any damages arising out of "any breach of warranty or representation" by the selling entity "or its management stockholders" and for "any liabilities or obligations of [s]eller" not explicitly listed in the purchase agreement. Id. at 162. The plaintiff then entered into a separate thirty-year indemnification agreement with the corporate seller that guaranteed to hold the plaintiff harmless for any damages that "arose or existed" prior to the purchase agreement. Id. Importantly, that thirty-year indemnification agreement stated that only the corporate entity would be held to the longer indemnification period, not its individual officers. Id. Furthermore, prior to seeking to recover CERCLA cleanup costs from the individual defendants, the plaintiff had entered into yet another contract, this last one "unconditionally releas[ing]" the corporate entity's former "Management Group," which included the individual defendants, from any claims the plaintiff might have had under the purchase agreement. Id. On that set of facts, the Second Circuit held that the plaintiff could not recover CERCLA cleanup costs from the individual defendants because the relevant contractual documents unequivocally expressed the parties' intent to shift any and all liability away from the individual officers of the corporate entity after the initial two-year indemnification period. Id. at 166.
In contrast, the Agreement between Trinity and Greenlease does not demonstrate an unequivocal intent to shift liability away from Greenlease after the three-year contractual indemnification period expired. On the contrary, rather than releasing Greenlease from liability, the Agreement states that Trinity did not assume any of Greenlease's liabilities or obligations, unless otherwise expressly provided by the Agreement. Greenlease's reliance on Keywell is therefore misplaced, and we will affirm the denial of its motion for judgment on the pleadings.
2. The Costs Trinity Incurred Were Necessary and Reasonable.
Greenlease next argues that the District Court impermissibly allocated to it costs that Trinity unnecessarily incurred by failing to impose cost controls on the remediation work at the North Plant. We review the District Court's factual findings for clear error, but review de novo its interpretation of CERCLA. Agere Sys., Inc. , 602 F.3d at 216.
A plaintiff can obtain contribution from a PRP under § 113(f)(3)(B) of CERCLA only if it first demonstrates a prima facie case of liability under § 107(a). See N.J. Tpk. Auth. v. PPG Indus., Inc. , 197 F.3d 96, 104 (3d Cir. 1999). Here, that requires Trinity to demonstrate the following: first, that the North Plant is a facility; second, that Greenlease is a PRP; third, that "the release or threatened release of a hazardous substance has occurred"; and fourth, that Trinity incurred "necessary response costs consistent with the [National Contingency Plan.]" Chevron Mining Inc. v. United States , 863 F.3d 1261, 1269 (10th Cir. 2017) (internal quotation marks and citation omitted). Greenlease does not dispute the District Court's conclusions on the first three points. It only argues that the District Court erred by determining, as a legal matter, that Trinity's response costs were per se necessary because they were undertaken in compliance with the Consent Decree. That argument, however, even if it had merit, is irrelevant, since the record is clear that Trinity's response costs were in fact necessary under CERCLA. We thus need not address whether response costs undertaken in compliance with a consent decree should be considered necessary per se .
A cost is considered "necessary" and hence subject to shared liability if there is "some nexus between [it] and an actual effort to respond to environmental contamination."
Young v. United States , 394 F.3d 858, 863 (10th Cir. 2005) ; cf. Black Horse Lane Assoc., L.P. v. Dow Chem. Corp. , 228 F.3d 275, 297 (3d Cir. 2000) (determining that a plaintiff did not meet its burden to demonstrate the necessity of a response action because it "did not relate to any remedial or response action at the" relevant site). It must be, in other words, a response cost, and CERCLA broadly defines a "response" to a hazardous release to include a wide variety of investigative, removal, and remedial actions. See 42 U.S.C. § 9601(23) - (25) (providing a non-exhaustive list of "response" actions); W.R. Grace & Co.-Conn. v. Zotos Int'l, Inc. , 559 F.3d 85, 92 (2d Cir. 2009) (noting that "response costs are liberally construed under CERCLA"). The District Court's detailed factual findings make clear that there was a nexus between the costs Trinity incurred and its effort to investigate and remediate the contamination at the North Plant.
The cleanup activities at the North Plant were guided by the Consent Decree's requirement that those efforts be undertaken pursuant to the dictates of Pennsylvania's Act 2. That statute requires that remediation activities meet one of three standards: a background standard comparing contaminated areas to unaffected areas; a uniform statewide health standard set by a state agency, which differs depending on whether the site is meant for residential or commercial use; or a site-specific standard "based on a site-specific risk assessment so that any substantial present or probable future risk to human health and the environment is eliminated or reduced" so that the site could be utilized in accordance with its "present or currently planned future use[.]" (App. at 212 (citing 35 Pa. Stat. § 6026.301(a) ).) Trinity used the statewide health standard to determine which areas required "some type of response action" and then used the site-specific standard to guide the actual "soil cleanup." (App. at 223.) It did not use the background standard.
During the investigation phase of Trinity's cleanup activities, its consultant Golder used soil sampling to determine the areas of concern requiring remediation. That necessitated the establishment of a "standard action level," which is the numerical threshold for determining when soil is contaminated to an extent requiring treatment. For example, to determine whether areas contaminated by lead -the primary contaminant of concern-required treatment, Golder originally selected a standard action level of 1000 milligrams of lead per kilogram of soil. That was not a random choice. It selected that standard because it had observed that, at a threshold level of 1500 mg/kg, some soil samples passed toxicity testing, while others failed. At the more exacting 1000 mg/kg level, Golder was confident that it would catch all of the soil requiring remediation.
But Golder was also cost conscious on that point. The selection of an accurate standard was important because failure to adequately remove all of the contaminated soil would require Golder to put in place more costly hazardous waste caps that could leave the land unusable. It initially chose the 1000 mg/kg standard for the reasons just noted, but when, during the cleanup process, it discovered that a significant amount of soil exceeded the 1000 mg/kg standard yet could still safely remain in place because it was going to "be capped anyway as part of the approved remedy" (App. at 234), it conducted a "site characterization study" to determine whether there was a more appropriate standard action level (App. at 234-35). Golder settled on a 2500 parts per million standard that was approved by PADEP. The record accordingly establishes an appropriate cost sensitivity and a nexus between Golder's (and hence Trinity's) investigative efforts and the purpose of remedying environmental harms.
The same is true with regard to the activities Golder undertook to remediate the contaminated areas. It used three primary response actions: first, simply consolidating contaminated soil and placing an asphalt cap atop that soil; second, excavating and chemically treating contaminated soil to render it nonhazardous and then placing an asphalt cap over the remediated area; and third, transporting contaminated soil to an appropriate landfill. Golder's soil excavation efforts allowed it to use simple asphalt caps to cover the excavated areas, as opposed to what are called Subtitle C caps. Subtitle C of RCRA regulates the precise manner in which a hazardous waste cap is put in place and maintained. Installing and maintaining a cap in compliance with Subtitle C is more difficult, complex, and expensive than installing and maintaining a simple asphalt cap. The District Court found that use of a Subtitle C cap would have made the North Plant site look like a "landfill," would not have been "consistent with the residential character of Greenville," (App. at 241), and would have rendered much of the North Plant unusable for any purpose. Those factual findings reinforce that Golder's activities had the required nexus to the stated purpose of remedying environmental harms. The response costs Trinity incurred were therefore necessary under CERCLA.
Although Greenlease is correct that "[t]he cleanup at the North Plant was more difficult, inclusive, and expensive because it was done pursuant to the consent order and with oversight by ... PADEP," (App. at 225), we do not agree that those extra costs were consequently unnecessary. The Consent Decree required compliance with state environmental standards. To ensure that those statutory requirements were met, Trinity and Golder had to get PADEP's approval for each step of the cleanup. The costs incurred to comply with the Consent Decree were thus aimed directly at satisfying state environmental standards and are appropriately classified as "necessary to the containment and cleanup of hazardous releases." Redland Soccer Club, Inc. v. Dep't of Army of U.S. , 55 F.3d 827, 850 (3d Cir. 1995) (citation omitted).
A clearer way to understand Greenlease's contentions is to see them as challenging the reasonableness of Trinity's expenditures, not their necessity. Greenlease does not point to any specific activity that was not "necessary." Rather, it complains that Trinity incurred excessive costs because the Consent Decree lacked meaningful cost control mechanisms, because Trinity hired Golder without competitive bidding, and because Trinity agreed to a "cost-plus" billing arrangement with Golder. Those arguments fare poorly precisely because they do not address necessity, as that concept is applied in the context of CERCLA.
Greenlease's arguments fall flat in light of the District Court's factual findings that we have already recounted in some detail. Greenlease does not point to any record evidence demonstrating how any of those facts resulted in unreasonably excessive spending. In contrast, as the Court found, Trinity and Golder worked together "to try to control costs or pay only reasonable costs," (App. at 218), and worked with PADEP "to reduce the amount of work [Trinity] had to do to comply with the" Consent Decree (App. at 225). The District Court credited expert testimony that the billing methods used by Trinity "contributed to the cost efficiency of the response work at the North Plant" and "prevented Golder from up-charging [Trinity.]" (App. at 219-20.) Greenlease has given us no sound reason to disagree with that assessment.
We will therefore affirm the District Court's determination that Trinity's response costs were necessary and reasonable.
3. The District Court Erred in Allocating Costs Between Trinity and Greenlease.
Greenlease argues that the District Court used a purely speculative methodology, different from the methodology proposed by Trinity's expert witness Gormley to allocate costs between the parties. In particular, the criticism is that the District Court relied on "volumes and surface areas ... as a proxy for the costs Trinity incurred at each impact area[.]" (Green. Opening Br. at 22.) Greenlease contends that that methodology was arbitrary because it failed to account for the reality that different units of measure are not interchangeable and because volumetric data cannot reliably serve as a proxy for costs when some remediation activities cost more than others. According to Greenlease, the District Court was forced to resort to a methodology based on volumetric data alone because Trinity failed to present sufficient evidence documenting how much it cost to undertake each of the major remediation activities within each impact area. Greenlease's position is thus that the District Court's cost allocation methodology cannot stand, given the Court's failure to include actual costs in its analysis. We agree that the Court materially deviated from the methodology presented by Gormley and so arrived at a speculative cost allocation methodology that must be corrected.
CERCLA provides PRPs with a right to contribution for remediation expenses. Atl. Research Corp. , 551 U.S. at 138, 127 S.Ct. 2331. A district court "may allocate response costs among liable parties using such equitable factors as the court determines are appropriate." 42 U.S.C. § 9613(f)(1). "[T]he law does not command mathematical preciseness from the evidence in finding damages. Instead, all that is required is that sufficient facts ... be introduced so that a court can arrive at an intelligent estimate without speculation or conjecture." Scully v. US WATS, Inc. , 238 F.3d 497, 515 (3d Cir. 2001) (alterations in original) (internal quotation marks and citations omitted). We review an allocation of CERCLA damages for abuse of discretion. Agere Sys., Inc. , 602 F.3d at 216. A district court abuses its discretion when its decision depends "upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact." Id. (citation omitted).
The parties and their experts in this case placed the District Court in an unenviable position. Each of the parties staked out extreme positions on cost allocation, with Trinity's expert Gormley opining that Greenlease should be held responsible for 99% of all cleanup costs and Greenlease's expert opining that, despite Greenlease's 76 years of building and manufacturing activity at the North Plant, Trinity should be held responsible for nearly 90% of all cleanup costs. The record became even more difficult to sort out when, on direct examination, Gormley gave testimony that was unclear at best and departed from the methodology contained in his expert report. Although we commend the District Court's painstaking effort to analyze nearly a century of building and manufacturing activity by multiple parties to allocate costs equitably between Greenlease and Trinity, the attempt to untangle the evidentiary knot presented by the parties fell short.
Before addressing the District Court's cost allocation methodology, we begin with the methodology that Gormley proposed in his expert report and explained somewhat at trial. Gormley's report presented a six-step approach to allocating costs. First, using "historical information and investigation findings," Gormley assigned a percentage of responsibility to each party for contamination in each area of concern, (D.I. 285-2 at 10), and he applied those percentages to the impact areas within each area of concern. He documented that step in Tables 4-1 and 6-2. Second, he calculated the quantity of material in each impact area that was subject to specific major remediation activities. That step was documented in Table 6-2. Third, he multiplied the estimated quantities of material used for (or remediated by) major remediation activities by each party's percentage of responsibility for contaminating each impact area. Fourth, he summed results from step three to develop Trinity's and Greenlease's respective responsibility percentages "for each major remediation activity[.]" (Id. ) Fifth, he multiplied the percentage of responsibility for each major remediation activity by the cost of each such activity to determine how to allocate the costs for each. Finally, Gormley totaled how much in costs each party was responsible for across all major remediation activities "to calculate a total percent cost allocation for the major remediation activities." (D.I. 285-2 at 10.) Steps five and six were documented in Table 7-1. The report opined that the final percentage calculated at step six could be used to allocate the "general construction costs" (i.e., costs that were incurred on a project-wide basis that were not tied to a specific impact area) between both parties. Gormley's expert report presented his methodology as a single analysis with multiple steps.
Gormley's testimony at trial, however, muddied his otherwise straightforward methodology. At trial, he described his methodology as a "three-stage process." (D.I. 340 at 108.) Stage 1, termed the "AOC-by-AOC percentage allocation," involved creating a percentage allocation specific to each area of concern; stage 2, termed the "IA-by-IA percentage allocation," involved creating a percentage allocation for each impact area; and stage 3, termed "major remediation allocation," involved creating a specific allocation for each major remediation activity. (D.I. 340 at 108-11.) Trinity's counsel, in a perhaps confusingly worded set of questions, asked if each stage was meant "to be mutually exclusive" of the other stages, (D.I. 340 at 111), by which he appears to have been asking if each "stage" was a separate and distinct methodology that could be used to allocate costs, as opposed to steps in a single methodology. In a truly confusing answer, Gormley stated that the three stages "weren't supposed to be mutually exclusive," and he went on to testify that "[t]he first [stage] could be taken on its own," but that the second and third stages built on the first stage. (D.I. 340 at 111.) He ultimately agreed with Trinity's counsel, however, that each of his three stages "could be used by someone who was trying to develop their own logical or fair means to allocate responsibility for the contamination at the North Plant[.]" (D.I. 340 at 111.) Gormley's testimony departed from his expert report in a crucial way - his report made clear that each step in the methodology built on those that came before it, and that they were not independent means to come up with a cost allocation. His testimony, however, was less than clear as to whether the "stages" of his methodology were each independent analytical means to allocate costs or steps that built on one another.
Led by the unclear testimony, the District Court chose Gormley's "stage 3" - divorced from the analytical foundations for that stage in the earlier steps of Gormley's analysis - to guide its cost allocation analysis. That at least appears to have been the Court's approach because it titled its allocation analysis, "Overall Allocation of Responsibility based upon Major Remediation Activity"; it stated that it "determined an overall allocation based upon the extent of each major remediation activity in each [impact area]"; it explicitly listed the major remediation activities it "considered ... in its calculation"; and it cited Table 7-1 - the table corresponding to Gormley's stage 3 - when reaching its allocation determination. (App. at 375-77.) The District Court, however, materially deviated from Gormley's suggested major remediation activity allocation methodology by focusing only on the quantity of material involved in all major remediation activities, without distinguishing between activities and without regard to cost. That was despite Gormley's testimony confirming "that a central feature of the analysis ... reflected in [Table] 7-1 is [the] notion of the ... costs[.]" (D.I. 341 at 33.)
The District Court's allocation methodology proceeded in four steps. First, it made its own factual determinations regarding the percentage of responsibility each party bore for contamination in each specific impact area. Second, it totaled, for each impact area, the quantity of material used or remediated by major remediation activities. The Court's analysis did not differentiate between remediation activities. For example, it treated placing asphalt caps and placing topsoil as functionally the same for its cost allocation analysis despite the fact that those two activities' costs vary significantly. Third, it multiplied, on an impact area-specific basis, each party's percentage of responsibility for contamination with the total quantity of material used or remediated. Fourth, it used the resulting numbers to determine the percentage of material, in total, for which each party was responsible. That calculation led the Court to attribute to Greenlease 83% of responsibility for the contamination of the North Plant and to Trinity 17%. The Court, citing Gormley's testimony and expert report, used those percentages to allocate "all response costs ..., including responsibility investigation, removal and remedial past costs incurred through February 2015, for general construction costs, ... and future construction costs for ongoing operations and maintenance work." (App. at 377 (emphasis omitted).) Those percentages, however, were too speculative for two reasons. First, the Court's methodology failed to differentiate between different remediation activities and their varied costs, and, second, the methodology, as applied, treated data measured in square feet as equivalent to data measured in cubic yards.
Although the District Court's reliance on volumetric data as the key factor in allocating response costs is not without support in our case law, its use here was flawed. In Agere Systems, Inc. v. Advanced Environmental Technology Corporation , we endorsed a volumetric-centered approach to allocating CERCLA costs because, in that case, "volume allocation likely reflect[ed] the dollar amounts" at issue. 602 F.3d at 236. We clarify here that such a volumetric-centered approach is only appropriate where the evidence supports a finding that one standardized volumetric unit correlates with a standardized per unit measure of cost. That may often be the case when a CERCLA cleanup involves only one impact area, or when a cleanup involves one primary major remediation activity. But when, as here, an environmental cleanup involves many impact areas and remediation activities with varying costs, a volumetric-centered approach that fails to account for cost differences will very likely lead to an allocation that is inequitable because it is divorced from the record evidence and analytically unsound. When, as a hypothetical example, 100 units of material that costs $1 per unit to remediate are treated the same as 100 units of material that costs $10 per unit to remediate, the analysis will be hard to justify.
That kind of error occurred here and was compounded when the District Court treated conceptually distinct units of measurement as equal. It added together data measured in square feet - a unit of surface area - with data measured in cubic yards - a unit of volume. Performing such a calculation was, as Greenlease contends, like comparing "apples to oranges." (Green.
Opening Br. at 53.) Without pure speculation as to the depths at issue for the square footage measurements, or record evidence establishing those depths, it would not have been possible for the District Court to equate cubic yards to square feet. The Court's findings of fact and conclusions of law do not reflect any such analysis.
Those problematic deviations from Gormley's methodology compel us to conclude that there was an abuse of discretion and that we must vacate the District Court's judgment as to the allocation of costs between Greenlease and Trinity. If the District Court was persuaded by Gormley's analytical approach, then, on remand, it should adhere to the cost allocation methodology he set forth in his expert report - a methodology that both experts relied upon in coming to their respective cost allocation estimates. That methodology will require the Court to conduct a separate cost allocation analysis for each major remediation activity. Much of the information needed for that is readily available in the record, but additional fact-finding by the District Court may be needed.
To apply Gormley's methodology properly, the District Court must use volumetric and cost data specific to the remediation activities. For every major remediation activity, then, the Court should calculate how much of that activity each party was responsible for. It can then apply that percentage breakdown to the total cost of that specific activity at the North Plant. Once it assigns each party a cost allocation for every major remediation activity, the Court will be able to add the parties' respective shares of costs together. From those totals, the Court can calculate the overall percentages to use in determining an equitable allocation of costs between Greenlease and Trinity. The District Court remains free to exercise its discretion to adjust those percentages, subject to the guidance provided herein. It is also free to reopen the record, should it determine that it is necessary to do so to carry out the kind of analysis we have described.
C. Trinity's Cross-Appeal
Trinity raises three primary issues in its cross-appeal. First, it appeals the District Court's factual determination of responsibility for the lead contamination at the North Plant. We will affirm because we cannot say that the Court abused its discretion, given the evidentiary record before it. Second, Trinity challenges the District Court's decision to grant Greenlease equitable deductions to account for the Agreement's indemnification provisions and for the purported increase in value of the North Plant following the cleanup. We agree that the District Court erred in the manner in which it applied those equitable deductions. We emphasize, however, that the District Court is free on remand to apply equitable deductions in accordance with the principles discussed in this opinion. Third, Trinity appeals the District Court's determination that Ampco is not liable for the conduct of Greenlease. We will affirm on that point because Trinity cannot demonstrate that Ampco is either directly or derivatively liable for Greenlease's conduct at the North Plant.
1. The District Court's Allocation of Responsibility for Lead Contamination was Not an Abuse of Discretion.
Trinity challenges the District Court's determination that Greenlease's painting operations did not contribute to lead contamination requiring remediation. It contends that it is undisputed that Greenlease's painting operations at the North Plant resulted in lead runoff seeping into the ground. We review an allocation of CERCLA damages for abuse of discretion. Agere Sys., Inc. , 602 F.3d at 216. Given the evidence and expert testimony in the record supporting the District Court's determination, we do not agree that there was an abuse of discretion.
The District Court did not, as Trinity suggests, "disregard the co-contributing effects of Greenlease's lead paint releases." (Trinity Opening Br. at 64.) Rather, as the Court explained, it found that the historic fill utilized at the North Plant by various parties over the years was "the source of the lead contamination that required remediation [.]" (App. at 402.) In other words, the District Court found that any contamination by lead paint alone would not have resulted in contamination requiring remediation. The Court then incorporated "the overall percentage of responsibility for the lead contamination that required remediation " in its equitable cost allocation analysis. (App. at 402.)
The District Court's finding that historic fill and not lead paint was the source of the contamination requiring remediation was adequately supported by Greenlease's expert Gerritsen. He supported his conclusion by studying soil samples and observing no correlation between painting operations and lead contamination. In particular, Greenlease's expert observed that lead exceeding PADEP standards was consistently present in historic fill rather than native soil. That Trinity's expert reached a different conclusion - without conducting an analysis of soil samples - is of no import. The District Court was entitled to believe Greenlease's expert analysis, as it had adequate support to be admissible. See United States v. Allegheny Ludlum Corp. , 366 F.3d 164, 184 (3d Cir. 2004) ("[W]hen presented with two sound but conflicting expert opinions, a district court has discretion to credit one over the other."). Accordingly, we will affirm the conclusion that Greenlease's paint operations did not result in lead contamination requiring remediation.
2. The District Court Abused Its Discretion When Granting Equitable Deductions Premised on the Indemnification Provisions and the Purported Increased Value of the North Plant.
CERCLA grants trial courts broad discretion to "allocate response costs among liable parties using such equitable factors as the court determines are appropriate." 42 U.S.C. § 9613(f)(1). "Congress intended to grant the district courts significant flexibility in determining equitable allocations of response costs, without requiring the courts to prioritize, much less consider, any specific factor." Beazer E., Inc. v. Mead Corp. , 412 F.3d 429, 446 (3d Cir. 2005). However, "[w]e do not simply 'rubber-stamp' a district court's equitable allocation[.]"
Lockheed Martin Corp. v. United States , 833 F.3d 225, 234 (D.C. Cir. 2016) (citation omitted). Rather, we review the equitable allocation of environmental cleanup costs for abuse of discretion. Agere Sys., Inc. , 602 F.3d at 216 ; Beazer , 412 F.3d at 445 n.18.
Trinity argues that the District Court's 5% equitable deduction in favor of Greenlease due to the contractual indemnification provisions, and its 10% equitable deduction in favor of Greenlease due to the purported increased value of the North Plant, were improper. We agree, and so too does Greenlease, which acknowledges that the District Court's "percentage reductions were completely arbitrary and speculative." (Green. Opening Br. at 24.) The District Court abused its discretion when it applied the 5% equitable deduction because it erroneously interpreted our precedent. It also abused its discretion when it applied the 10% equitable deduction because it failed to explain how it arrived at that figure, and we can discern no basis for the figure in the record.
i. The 5% Indemnification Provisions Deduction
The District Court relied on our opinion in Beazer East, Inc. v. Mead Corporation when it took into consideration the Agreement's indemnification provisions to reduce Greenlease's percentage of responsibility by 5%. It concluded that "it would be error" to not incorporate the parties' intent, as manifested by the three-year limit on the indemnification provisions, into its equitable allocation. (App. at 383.) It reached that conclusion because, in Beazer , we held that it was error for a district court to fail to incorporate the relevant parties' mutual intent when entering a contract as part of its equitable allocation. 412 F.3d at 448. In that case, the district court had failed to give "significant consideration" to the parties' intent when equitably allocating CERCLA costs, id. , despite finding that both parties had intended that the defendant-seller "would not bear any environmental liability following the ... sale," id. at 445. The district court had reasoned that, because the contract at issue did not "demonstrate[ ] a clear and unambiguous intent to transfer all CERCLA liability," as required by the relevant state law, the parties' intent to shift liability should be a subordinate factor to the "polluter pays" principle embedded in CERCLA. Id. at 447-48. We said that the district court erred because the legal interpretation of the contract did not prevent the court from giving, as a matter of equity, significant consideration to "the intent of the parties, which [was] manifested by their actions and in the written agreement[.]" Id. at 447.
Critical to our holding in Beazer was the fact that the district court had determined that both parties expressed a mutual intent to shift CERCLA liabilities following the relevant sale. It was only a nuanced application of state contract law that prevented the parties' mutual intent from being enforced as a matter of law. Therefore, in that case, equity demanded that the district court give significant consideration to the parties' shared intent. Here, in contrast, the District Court's findings make clear that there was no mutual intent, as expressed by the written agreement or by the actions of both parties, to shift CERCLA liability following the sale of the North Plant. It was, at most, only Greenlease's subjective intent to shed all CERCLA liability following the expiration of the three-year indemnification period. A party's subjective intent to avoid liability, which contradicts the agreement at issue, should not be given significant consideration when equitably allocating environmental cleanup costs. Because it appears that the District Court here mistook Beazer to permit Greenlease's subjective intent to be given substantial weight, its 5% equitable deduction in favor of Greenlease was an abuse of discretion.
Nothing we have said here should be interpreted as altering the principle set out in Beazer that, as a matter of equity, trial courts can take into consideration "the intent of the parties ... [as] manifested by their actions and in the written agreement[.]" Id. at 447. But when the intent resulting in the equitable deduction is not shared by both parties and appears contrary to provisions of the contract, a district court must explain why, as a matter of equity, it is nevertheless appropriate to award an equitable deduction. Because we view the District Court as having misapplied Beazer , we remand for it to take a fresh look at whether it is appropriate, on the record before the Court, to award Greenlease an equitable deduction premised on the contractual indemnification provisions.
ii. The 10% Property Value Increase Deduction
The District Court concluded that a 10% equitable deduction in favor of Greenlease was appropriate because the North Plant's value had increased since the remediation work transformed the site from being unsuitable for any productive purpose to being usable as a site for some commercial or industrial purposes. Although we agree with the District Court's identification of the increased value of a remediated site as an appropriate equitable factor to consider when allocating cleanup costs, we cannot agree with its application of that principle here because the record did not contain any evidence concerning the fair market value of the North Plant, either before or after the remediation.
If a landowner successfully seeks contribution from others for environmental cleanup costs, that owner should likely be required to share the benefits of any increase in value brought about by the cleanup. Courts have thus taken the increased market value of a remediated property into consideration when allocating response costs. See, e.g. , Litgo N.J. Inc. v. Comm'r N.J. Dep't of Envtl. Prot. , 725 F.3d 369, 387 (3d Cir. 2013) (discussing the increased value of remediated land); Minyard Enters., Inc. v. Se. Chem. & Solvent Co. , 184 F.3d 373, 387 (4th Cir. 1999) (directing a lower court to take into consideration "the fact that the [p]roperty may appreciate following its remediation"); Farmland Indus., Inc. v. Col. & E. R.R. Co. , 944 F.Supp. 1492, 1500-01 (D. Colo. 1996) (concluding that "it would be inequitable" not to take into account the fact that the former owner "garner[s] no tangible benefit from the cleanup of land it no longer owns"). Limiting a party's ability to benefit from an economic windfall comports with "CERCLA's general policy against double recovery[.]" Litgo , 725 F.3d at 391.
The problem with the District Court's 10% deduction, then, was not in the decision to consider the increased market value of the North Plant as an equitable factor but rather in the application of that factor without any record evidence concerning the North Plant's value. It is only appropriate to take increased value into consideration when there is evidence concerning an actual increase, such as proof of the fair market value of the property before and after the cleanup. See N.Y. State Elec. & Gas Corp. v. FirstEnergy Corp. , 766 F.3d 212, 239 (2d Cir. 2014) (refusing to take into consideration "the economic benefit of the cleanup" because the party seeking the equitable deduction "fail[ed] to offer evidence about any increase in the value of the land"). Because the District Court may reopen the record for purposes already discussed, see supra subsection III.B.3, it may also receive additional evidence concerning the fair market value of the North Plant site, both before and after the remediation activities, to allow it to come to a reasoned percentage reduction premised on the increased fair market value, if any, of the North Plant site.
3. The District Court Did Not Err in Deciding that Ampco Is Neither Directly Nor Derivatively Liable for the Contamination at the North Plant.
Trinity argues that the District Court erred in determining that Ampco was not liable for Greenlease's share of environmental cleanup costs. As Trinity sees it, the evidence it presented demonstrated genuine issues of material fact that were sufficient to entitle it to a trial on the question of Ampco's liability. It advances two closely related theories to support its position that Ampco is legally responsible for Greenlease's conduct at the North Plant. First, Trinity contends that Ampco is directly liable because it qualifies under CERCLA as an "operator" of the North Plant. Second, it asserts that, under a veil-piercing theory, Ampco is derivatively liable for Greenlease's operation of the North Plant. Direct and derivative liability are two analytically distinct bases for holding a parent company liable for environmental cleanup costs resulting from a subsidiary's conduct. United States v. Bestfoods , 524 U.S. 51, 67-68, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998).
We review the District Court's grant of summary judgment de novo. Shelton v. Bledsoe , 775 F.3d 554, 559 (3d Cir. 2015). Summary judgment is appropriate only if, after drawing all reasonable inferences in favor of the non-moving party, there exists "no genuine dispute as to any material fact." Shuker v. Smith & Nephew, PLC , 885 F.3d 760, 770 (3d Cir. 2018) (quoting Fed. R. Civ. P. 56(a) ). After our own independent assessment of the record evidence, we agree with the District Court that Ampco is not liable for Greenlease's conduct at the North Plant, and we will therefore affirm the grant of summary judgment in favor of Ampco.
i. Ampco Is Not Directly Liable for Greenlease's Share of Responsibility for Contamination at the North Plant.
CERCLA holds an "operator" of a facility "directly liable for the costs of cleaning up the pollution." Bestfoods , 524 U.S. at 65, 118 S.Ct. 1876. Direct liability attaches to a parent company whose subsidiary owns a facility only if the "act of operating a corporate subsidiary's facility is done on behalf of a parent corporation[.]" Id. The term "operate" is read according to its "ordinary or natural meaning" to refer to "someone who directs the workings of, manages, or conducts the affairs of a facility." Id. at 66, 118 S.Ct. 1876 (citation omitted). To be directly liable, "an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations." Id. at 66-67, 118 S.Ct. 1876. Whether Ampco is directly liable, therefore, must be based on its "participation in the activities of the" North Plant. Id. at 68, 118 S.Ct. 1876. Trinity cannot hold Ampco liable for the environmental cleanup costs merely by showing that "dual officers and directors made policy decisions and supervised activities at the facility." Id. at 69-70, 118 S.Ct. 1876. Direct liability will only exist if there is evidence that Ampco managed the day-to-day activities of the North Plant in a manner that exceeds "the interference that stems from the normal relationship between parent and subsidiary." Id. at 71, 118 S.Ct. 1876. As the Supreme Court instructed in United States v. Bestfoods , the relevant inquiry for direct liability focuses on the relationship between the parent entity and the polluting facility, not the parent's relationship to its subsidiary. Id. at 68, 118 S.Ct. 1876.
The District Court rightly determined that the record here would not permit a reasonable fact-finder to conclude that Ampco's involvement in the day-to-day operations of the North Plant exceeded "the normal relationship between parent and subsidiary," id. at 71, 118 S.Ct. 1876, in a manner that would support holding Ampco directly liable for Greenlease's conduct. The undisputed facts establish, rather, that "[Greenlease] employees were responsible for all day-to-day operations at the North Plant, including any waste disposal, waste handling, painting, abrasive blasting, welding, and fabrication operations." (App. 81-82.) Greenlease employees, not Ampco employees, coordinated disposal with outside contractors and communicated with PADEP on environmental matters. In fact, Ampco "did not employ any engineers or persons with technical experience in manufacturing that could make decisions for [Greenlease] with respect to environmental compliance or waste management." (App. at 82. ) Instead, "Ampco employed only a professional staff, such as accountants, actuaries, and lawyers[.]" (App. at 82.) Helping with administrative work is consistent with a typical parent-subsidiary relationship, and certainly does not establish Ampco's direct involvement with the North Plant, which Bestfoods demands to hold a parent directly liable for environmental cleanup costs.
Trinity maintains that Ampco crossed the line into operating the North Plant. According to Trinity, Ampco did so through individuals who advised Greenlease with regard to environmental laws and regulations, monitored Greenlease's activities, provided Greenlease with legal advice regarding compliance with environmental laws, and were involved with Greenlease's plans to increase the North Plant's production capacity and to modernize its operations. Trinity does not, however, explain how any of those activities, even if one accepts Trinity's take on the evidence, turns Ampco's supervision of Greenlease into anything other than a typical parent-subsidiary relationship. Bestfoods makes clear that "[a]ctivities that involve the facility but which are consistent with the parent's investor status, such as monitoring of the subsidiary's performance, supervision of the subsidiary's finance and capital budget decisions, and articulation of general policies and procedures, should not give rise to direct liability." 524 U.S. at 72, 118 S.Ct. 1876 (citation omitted). That the policies Ampco advised on may have included environmental issues does not, on this record, change the calculus.
Accordingly, we agree with the District Court's conclusion that Ampco's actions with respect to the North Plant did not fall outside the bounds of typical "parental oversight of a subsidiary's facility," id. , and hence are not a basis for direct liability.
ii. Ampco Is Not Derivatively Liable for Greenlease's Share of Responsibility.
A parent corporation can be held derivatively liable under CERCLA for its subsidiary's actions "only when[ ] the corporate veil may be pierced[.]" Id. at 63, 118 S.Ct. 1876. And "the corporate veil may be pierced" only in extraordinary circumstances, such as when "the corporate form would otherwise be misused to accomplish certain wrongful purposes[.]" Id. at 62, 118 S.Ct. 1876 ; see also Wedner v. Unemp't Comp. Bd. of Review , 449 Pa. 460, 296 A.2d 792, 794 (1972) ("The corporate entity or personality will be disregarded [o]nly when the entity is used to defeat public convenience, justify wrong, protect fraud or defend crime." (citation omitted) ). In such circumstances, the law permits a subsidiary to be deemed an "alter ego" of its parent so that the parent can be held liable for the actions of its subsidiary. Pearson v. Component Tech. Corp. , 247 F.3d 471, 484 (3d Cir. 2001). Piercing the corporate veil is a limited exception to the "general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation ... is not liable for the acts of its subsidiaries." Bestfoods , 524 U.S. at 61, 118 S.Ct. 1876 (internal quotation marks and citations omitted); see also Lumax Indus., Inc. v. Aultman , 543 Pa. 38, 669 A.2d 893, 895 (1995) ("[T]here is a strong presumption in Pennsylvania against piercing the corporate veil.").
Trinity seeks to use both federal law and state law to pierce the corporate veil. The federal law principles we have articulated for when a subsidiary is merely an alter ego of its parent are substantially similar to the principles set forth in Pennsylvania case law. Our analysis of both, therefore, can largely proceed in tandem, though we do specifically note Trinity's state law-specific arguments. Under either theory, Trinity has failed to adduce sufficient evidence to create a triable issue of fact.
We have identified several factors helpful in determining whether, as a matter of federal common law, a subsidiary is merely an alter ego of its parent. Those factors include "gross undercapitalization, failure to observe corporate formalities, nonpayment of dividends, insolvency of [subsidiary] corporation, siphoning of funds from the [subsidiary] corporation by the dominant stockholder, nonfunctioning of officers and directors, absence of corporate records, and whether the corporation is merely a façade for the operations of the dominant stockholder." Pearson , 247 F.3d at 484-85. No single factor is dispositive, and we consider whether veil piercing is appropriate in light of the totality of the circumstances. Cf. Trs. of Nat'l Elevator Indus. Pension, Health Benefit & Educ. Funds v. Lutyk , 332 F.3d 188, 194 (3d Cir. 2003) (explaining that the alter ego test factors do not comprise "a rigid test"); Am. Bell Inc. v. Fed'n of Tel. Workers of Pa. , 736 F.2d 879, 887 (3d Cir. 1984) (requiring "specific, unusual circumstances" before piercing the corporate veil (citation omitted) ).
Proving that a corporation is merely an alter ego is a burden that "is notoriously difficult for plaintiffs to meet." Pearson , 247 F.3d at 485. "[I]n order to succeed on an alter ego theory of liability, plaintiffs must essentially demonstrate that in all aspects of the business, the two corporations actually functioned as a single entity and should be treated as such." Id. Under our precedent, the basis for piercing the corporate veil must be "shown by clear and convincing evidence." Lutyk , 332 F.3d at 192 (quoting Kaplan v. First Options of Chi., Inc. , 19 F.3d 1503, 1522 (3d Cir. 1994) ).
Trinity appears to agree that most of the traditional factors we look to when determining whether to pierce the corporate veil are either inapplicable to this case or favor Ampco. Its primary arguments for piercing the corporate veil are that "Greenlease became undercapitalized when Ampco siphoned off Greenlease's assets," that "Ampco and Greenlease's interactions exceeded norms that characterize parent/subsidiary relationships," (Trinity Opening Br. at 74), that the equities tilt in its favor under Pennsylvania's alter-ego test, and that public policy favors holding Ampco responsible.
a. Greenlease Was Not Undercapitalized and Ampco Did Not Siphon Funds From Greenlease.
Trinity argues that Greenlease's issuing to Ampco some $50 million dollars in dividends in the years following the sale of the North Plant, leaving only $250,000 in reserve for liabilities, favors piercing the corporate veil. But "the inquiry into corporate capitalization is most relevant for the inference it provides into whether the corporation was established to defraud its creditors or [an]other improper purpose such as avoiding the risks known to be attendant to a type of business." Lutyk , 332 F.3d at 197. There is no basis in the record to suggest that Greenlease was undercapitalized while operating the North Plant. Instead, Trinity suggests only that Greenlease lacked funds after Greenlease's operations of the North Plant had effectively stopped. That is of "little relevancy to determining whether piercing the corporate veil [is] justified here." Id.
There is also no evidence that Greenlease issued dividends to Ampco with awareness of its liability to Trinity or to escape subsequent liability. See Zubik v. Zubik , 384 F.2d 267, 273 (3d Cir. 1967) ("Unless done deliberately, with specific intent to escape liability for a specific tort or class of torts, the cause of justice does not require disregarding the corporate entity."). As the District Court noted, "it would be unreasonable for Ampco to leave Greenlease's earnings from the sale of the North Plant in an account when at the time the dividends were issued Greenlease was a nonoperating company with no known liabilities." (App. 91 (emphasis removed).)
b. Greenlease and Ampco's Relationship Was a Typical Parent-Subsidiary Relationship.
Trinity emphasizes that there was significant overlap between the boards of Ampco and Greenlease and argues that Ampco dominated Greenlease to an unusual extent. But "duplication of some or all of the directors or executive officers" is not fatal to maintaining legally distinct corporate forms. Bestfoods , 524 U.S. at 62, 118 S.Ct. 1876 (citation omitted); see also Am. Bell , 736 F.2d at 887 (noting that "there must be specific, unusual circumstances" to justify veil piercing, and mere control and participation in management is inadequate). Greenlease ran the North Plant and hired all of the employees on the ground. Although Ampco was required to approve large decisions, Greenlease generally functioned with autonomy on decisions concerning manufacturing, environmental compliance, and disposal of waste. We have already said and now repeat that the District Court rightly determined that the record simply does not support Trinity's position that Greenlease's relationship with Ampco was materially different than a normal parent-subsidiary relationship.
c. Trinity Cannot Pierce the Corporate Veil Under Pennsylvania Law.
Trinity argues that the District Court erred by disregarding the "equitable underpinnings" of Pennsylvania's alter-ego framework. (Trinity Reply Br. at 6.) It maintains that Pennsylvania disregards the legal fiction of separate corporate entities "whenever justice or public policy demand[s]" it. (Trinity Reply Br. at 7 (quoting Ashley v. Ashley , 482 Pa. 228, 393 A.2d 637, 641 (1978).) According to Trinity, permitting Ampco to reap the benefits of the over $50 million in dividends from Greenlease without being held accountable for Greenlease's conduct is an injustice. But Trinity overlooks that Pennsylvania requires a plaintiff seeking to pierce the corporate veil to make "a threshold showing that the controlled corporation acted robot- or puppet-like in mechanical response" to the controlling shareholder's demands. E. Minerals & Chem. Co. v. Mahan , 225 F.3d 330, 333 n.6 (3d Cir. 2000) (citation omitted). Trinity has not made that showing here.
Pennsylvania law is also clear that courts are not to disregard the legal fiction of separate corporate entities if it would render "the theory of the corporate entity ... useless." Ashley , 393 A.2d at 641 ; see also Wedner , 296 A.2d at 795 ("Care should be taken on all occasions to avoid making the entire theory of the corporate entity ... useless." (internal quotation marks omitted) (quoting Zubik , 384 F.2d at 273 ) ). To permit Trinity to pierce the corporate veil in this instance, in the face of all the objective criteria favoring Ampco, would, in essence, result in rendering useless Ampco's legitimate use of the corporate form when setting up Greenlease as a subsidiary. The record is devoid of evidence that Ampco misused separate corporate entities for some nefarious purpose. To pierce the corporate veil would thus fly in the face of Pennsylvania's "strong presumption ... against piercing the corporate veil." Lumax , 669 A.2d at 895.
d. Public Policy Considerations Do Not Favor Trinity.
Finally, Trinity argues that the District Court failed to consider public policy justifications for piercing the corporate veil to ensure that the "polluter pays." (Trinity Opening Br. at 74.) As discussed above, however, both federal and Pennsylvania law favor maintaining the legal fiction of separate corporate entities. Because the evidence does not suggest that there was fraud or an attempt to use a corporate façade as an alter ego, public policy first favors upholding the integrity of the corporate form. Trinity has not presented any public policy consideration sufficiently compelling to overcome the strong presumption against veil piercing.
IV. CONCLUSION
For the foregoing reasons, we will affirm in part but will vacate the District Court's cost allocation determination and remand for further proceedings consistent with this opinion.
Greenlease was known first as the Greenville Metal Products Company and then as the Greenville Steel Car Company. For purposes of this opinion, we refer to all Greenlease and Greenville entities as "Greenlease."
The facts recounted here are taken from the District Court's post-trial findings of fact or from facts in the record that are undisputed.
Greenlease's stock was first acquired in 1937 by another company, the Pittsburgh Forging Co. Ampco then acquired all of the stock of the Pittsburgh Forging Co., and, through a series of transactions, became the sole shareholder of Greenlease.
In 2008, that reserve was $150,000, and in 2009, it was $282,500.
According to the District Court's findings of fact, the work includes maintaining the asphalt caps and continued ground water monitoring.
A court may equitably allocate among the parties before it the share of hazardous waste contamination belonging to responsible third-party entities not before it (such allocated amounts being known as "orphan shares"). But it can typically only do so if such orphan shares belong to entities that are unknown, insolvent, or immune from suit. See Litgo N.J. Inc. v. Comm'r N.J. Dep't of Envtl. Prot. , 725 F.3d 369, 380 n.4 (3d Cir. 2013) (permitting equitable allocation of orphan shares among liable parties at the court's discretion). As found by the District Court, that is not the case here.
The District Court had jurisdiction over Trinity's federal law claims under 42 U.S.C. §§ 6972(a) and 9613(b) and 28 U.S.C. § 1331. It had supplemental jurisdiction over Trinity's state law claims under 28 U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
As cited earlier, those sections of CERCLA are codified at 42 U.S.C. §§ 9607(a) and 9613(f), respectively.
The National Contingency Plan provides a set of standards governing environmental cleanup activities, including " 'methods and criteria for determining the appropriate extent of removal, remedy, and other measures,' 42 U.S.C. § 9605(a)(3), and 'means of assuring that remedial action measures are cost-effective.' [42 U.S.C.] § 9605(a)(7)." United States v. E.I. Dupont De Nemours & Co. Inc. , 432 F.3d 161, 168 (3d Cir. 2005) (en banc).
The case law that has developed around CERCLA has interpreted the term "necessary" to refer to a more elastic concept than how the word is typically understood. For example, CERCLA case law defines a "necessary" cost as one that has some "nexus" to the cleanup of environmental harm, not as a cost without which the cleanup would not have been possible. Compare Young v. United States , 394 F.3d 858, 863 (10th Cir. 2005) (interpreting the term "necessary cost" in the CERCLA context to refer to a cost that has a "nexus" to an environmental cleanup), with NECESSARY, Black's Law Dictionary (10th ed. 2014) (defining "necessary" as something "[t]hat is needed for some purpose or reason; essential"). We have undertaken our analysis of what costs were or were not necessary in this case in light of CERCLA precedent. Our opinion does not address how the term "necessary" should be interpreted in contexts outside of CERCLA.
The site-specific standard also required Trinity and Golder to engage the local community and to accept public comments about the cleanup efforts.
Certain contaminated soil was amenable to chemical treatment that rendered it nonhazardous; other soil was not amenable to such treatment and remained hazardous prior to disposal. The soil that was chemically treated could be transported to a nonhazardous waste landfill, which was two to four times cheaper than disposal at a hazardous waste landfill. The soil remaining hazardous had to be transported to a hazardous waste landfill.
Even if Greenlease's argument had merit, and the matter were in equipoise, we might yet be inclined to affirm the District Court's finding that the costs Trinity incurred were reasonable. That is because Trinity incurred those costs in furtherance of the Consent Decree. Although we need not, and do not, decide here whether costs incurred by a private party in compliance with a state consent decree are presumed reasonable under CERCLA, we note that similar costs incurred by a government party are presumed reasonable. For example, it is black letter CERCLA law that when a government's actions are not inconsistent with the National Contingency Plan, its costs are presumed reasonable, E.I. Dupont , 432 F.3d at 178, and are recoverable against PRPs, 42 U.S.C. § 9607(a)(4)(A). Since compliance with a consent decree entered pursuant to state law "establishe[s] ... compliance with the National Contingency Plan," Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc. , 596 F.3d 112, 137 (2d Cir. 2010), costs incurred by a government party in compliance with such a decree should be presumed reasonable. There may be a related principle warranting a similar presumption in a context like this.
Greenlease's expert incorporated Gormley's cost allocation methodology into his own cost allocation analysis, so Gormley's methodology was the only one presented to the District Court.
While the report did not break the methodology into the six discrete steps we describe here, it did have each of the steps, and identifying them separately is, we believe, helpful.
The District Court interpreted Gormley's trial testimony as establishing that "[e]ach of the three methods used by [him] could be used on its own-without considering the other two methods-to allocate responsibility for the contamination at the North Plant." (App. at 249.) Although that conclusion was understandable based on Gormley's testimony, it was mistaken. While Gormley agreed that "someone who was trying to develop their own logical or fair means to allocate responsibility" could incorporate any one of his stages into an allocation methodology, (D.I. 340 at 111), he never testified that someone could separate out one stage, and then use that stage's allocation methodology alone to allocate all cleanup costs for remediating contamination at the North Plant.
We find no error in the Court's underlying factual findings with regard to the contamination in each specific impact area.
Although we determine that the District Court erred in utilizing the cost allocation methodology that it did, the Court's use of volumetric data and a focus on major remediation activity as a means to determine the allocation of response costs was reasonable and within the Court's discretion.
"Cubic measures and square measures represent fundamentally different things. A cubic measure is always a three-dimensional unit of volume: length times width times height. A square measure is always a two-dimensional unit of area: length times width." Chris Magyar, Cubic Yards to Square Feet Conversion , SCIENCING (Mar. 13, 2018), https://sciencing.com/cubic-yards-square-feet-conversion-8641439.html (last visited Aug. 21, 2018).
We reiterate that any cost allocation methodology must differentiate between major remediation activities and account for the varying costs across those activities. Exactitude is not required. Indeed, at this late date it is probably not even possible. It is enough for the Court to make a reasonable estimate of costs based on an appropriate record. See Scully , 238 F.3d at 515 (explaining that the law only requires that district courts "arrive at an intelligent estimate" of CERCLA damages "without speculation or conjecture"; it does not require courts to arrive at a "mathematical[ly] precise[ ]" figure (citations omitted) ).
Because we must remand this case, we do not address whether Trinity met its burden to prove damages. However, if the Court chooses to reopen the record on remand, we encourage it to permit the parties to address whether some South Plant costs were impermissibly included in the Court's prior allocation of costs at the North Plant. It may also allow the parties to introduce evidence quantifying the costs incurred in remediating contamination caused by third parties.
Trinity argues that "substantial factual similarities" between Bestfoods and the facts here support its argument that Ampco is directly liable for Greenlease's operation of the North Plant. (Trinity Opening Br. at 78.) It contends that "[e]very fact referenced by the Supreme Court in Bestfoods has a parallel in this case." (Trinity Reply Br. at 20.) We disagree. In Bestfoods , the Supreme Court vacated a judgment in favor of a parent corporation because one of its employees "played a conspicuous part in dealing with the toxic risks emanating from the operation of the [subsidiary's] plant." 524 U.S. at 72, 118 S.Ct. 1876. Here, by contrast, Trinity has not pointed to record evidence that any officer, director, or employee of Ampco played a significant, let alone conspicuous, role in the operation of the North Plant.
Factors considered by Pennsylvania state courts include "undercapitalization, failure to adhere to corporate formalities, substantial intermingling of corporate and personal affairs and use of the corporate form to perpetrate a fraud." Lumax , 669 A.2d at 895.
See also Advanced Tel. Sys., Inc. v. Com-Net Prof'l Mobile Radio, LLC , 846 A.2d 1264, 1281 (Pa. Super. Ct. 2004) (looking to the "totality of circumstances" when conducting corporate veil piercing analysis).
See also E. Minerals & Chem. Co. v. Mahan , 225 F.3d 330, 333 n.6 (3d Cir. 2000) (explaining that Pennsylvania law "require[s] a threshold showing that the controlled corporation acted robot- or puppet-like in mechanical response to the controller's tugs on its strings or pressure on its buttons" before allowing a plaintiff to pierce the corporate veil (citation omitted) ); Culbreth v. Amosa (Pty) Ltd. , 898 F.2d 13, 14 (3d Cir. 1990) (interpreting Pennsylvania law to require that "the party seeking to pierce the corporate veil on an alter-ego theory establish[ ] that the controlling corporation wholly ignored the separate status of the controlled corporation and so dominated and controlled its affairs that its separate existence was a mere sham").
Trinity presents three arguments for why the District Court erred by applying the clear and convincing evidence standard to its alter-ego analysis: that it is always improper for a district court to apply that standard to a motion for summary judgment, that federal law does not incorporate the clear and convincing standard when the plaintiff does not allege fraud, and that Pennsylvania applies a preponderance of the evidence standard to its alter-ego analysis.
First, Trinity is incorrect as a matter of law that "under no circumstances" is a clear and convincing standard "appropriate for summary judgment purposes." (Trinity Opening Br. at 68.) "[T]he determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Consequently, where the clear and convincing evidence standard applies, the trial judge [at summary judgment] must inquire whether the evidence presented is such that a jury applying that evidentiary standard could find only for one side." Justofin v. Metro. Life Ins. Co. , 372 F.3d 517, 522 (3d Cir. 2004). Second, our precedent is clear, as a matter of federal common law in this Circuit, that "[b]ecause alter ego is akin to and has elements of fraud theory, ... it ... must be shown by clear and convincing evidence." Lutyk , 332 F.3d at 192 (citation omitted). Trinity has not presented any compelling argument to revisit that longstanding proposition. Third, we do not need to address the standard of proof we think Pennsylvania applies to its alter-ego analysis because, whether we apply a preponderance of the evidence standard or a clear and convincing evidence standard to the state law analysis, our ultimate conclusion is the same-no reasonable fact-finder could justify piercing the corporate veil on this record.
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OPINION
WHYTE, District Judge:
Appellants Japanese Village, LLC and Today’s IV, Inc. dba Westin Bonaventure Hotel (“Bonaventure”) appeal from the district court’s grant of summary judgment in favor of Appellees on Appellants’ claims under the National Environmental Policy Act, 42 U.S.C. § 4321 (“NEPA”). Appellants argue that Appellees’ environmental impact analysis for a new underground light rail line project in downtown Los Angeles was inadequate. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Metro plans to construct the Regional Connector Transit Corridor Project (“the Project”), a 1.9-mile light rail extension line in downtown Los Angeles, with federal funding from the Federal Transit Administration. The Project is intended to meet increased demand for public transit and improve transit service in the region by connecting the light rail Gold Line to the Blue and Expo Lines. The route for the extension line begins at 7th and Flower Streets and travels north on Flower Street to 2nd Street. It then continues east on 2nd Street to Central Avenue, where it turns north to intersect the Gold Line at 1st and Alameda Streets as shown below:
Appellants Japanese Village and Bonaventure own real property near the Project. The Japanese Village Plaza is a shopping center and .office complex in the Little Tokyo area at the eastern end of the proposed line, and the Westin Bonaventure Hotel occupies the block bounded by Flower, 4th, 5th, and Figueroa Streets in the Financial District.
A. NEPA Requirements
The National Environmental Policy Act requires a federal agency to prepare an Environmental Impact Statement (“EIS”) for any “major Federal aetion[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). NEPA applies to state transportation projects with significant federal funding. Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1101 (9th Cir. 2007). The EIS must include a detailed statement regarding, inter alia: (i) “the environmental impact of the proposed action”; (ii) “any adverse environmental effects which cannot be avoided should the proposal be implemented”; and (iii) “alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C). Once an agency determines that an EIS is required, it must prepare a draft EIS (“DEIS”). See 40 C.F.R. § 1502.9(a). The agency then releases the DEIS to the public and other agencies for comment. Id. § 1503.1(a). After the public comment period, the agency prepares a final EIS (“FEIS”), in which it must respond to comments made during the DEIS comment period. Id. § 1502.9(b). After the FEIS is released, the agency has the option to request comments before making a final decision. Id. § 1503.1(b).
If the agency “makes substantial changes in the proposed action that are relevant to environmental concerns” or there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts,” then the agency must prepare a supplemental DEIS or FEIS. Id. § 1502.9(c).
The agency ultimately produces a record of decision (“ROD”) that explains the rationale for agency’s decision. Id. § 1505.2. The ROD must include an assessment of all practicable measures for mitigating environmental harm. See id. § 1505.2(c).
B. Draft Environmental Impact Statement
In the instant case, the FTA published a Draft Environmental Impact Statement for public comment in September 2010. Metro had initially identified two build alternatives for the Project: a light rail primarily operating above ground (the “At-Grade Emphasis Alternative”) and a light rail that was primarily underground (the “Underground Emphasis Alternative”). During the DEIS drafting process, Appel-lees established a Little Tokyo Working Group, made up of leaders of the Little Tokyo Community Council and Metro staff, to discuss the impact of the Project on the community. The Little Tokyo community had concerns about the negative construction and operation impacts of both the At-Grade Emphasis Alternative and the Underground Emphasis Alternative. To address these concerns, the Little Tokyo Working Group collaborated on the development of the “Fully Underground Alternative,” which Metro staff recommended in the DEIS. After the period for public comment on the DEIS, Metro’s Board of Directors voted to designate the Fully Underground Alternative as the Locally Preferred Alternative.
C. Supplemental Environmental Assessment
Appellees continued to refine the Locally Preferred Alternative and addressed the impact of the refinements in a Supplemental Environmental Assessment/Recirculated Sections of the DEIS (“SEA”) released in July 2011. The refinements included reductions in the use of “cut and cover construction” for tunnel excavation, replaced by the use of “Tunnel Boring Machine” or “TBM” excavation.
Cut and cover construction entails excavating down from the ground surface using temporary excavation support to stabilize the ground before excavation begins. Temporary concrete decking is placed over the “cut” to allow traffic to pass above during construction; once the tunnel is complete, the excavated trench area is backfilled and the temporary decking is replaced by permanent surface. A tunnel-boring machine is a large-diameter horizontal drill that is used to excavate circular tunnel sections. Compared to the cut and cover method, tunnel boring is far less disruptive to surface traffic and adjacent land uses.
The Project refinements addressed in the SEA extended the use of TBM south along Flower Street from 2nd Street to 4th Street. The Project route was also realigned to eliminate the use of cut and cover construction on 2nd Street in Little Tokyo in favor of Closed Face TBM construction. The new route required Metro to purchase an easement for tunneling below the Japanese Village shopping center and office complex. The period for public comment on the SEA closed on September 6,2011.
D. Final Environmental Impact Statement and Record of Decision
On January 20, 2012, Appellees issued a Final Environmental Impact Statement and included responses to the public comments on the SEA. Appellees then accepted additional public comment on the FEIS and conducted a series of meetings with community stakeholders between February and April 2012. These efforts resulted in Metro staff recommending that the use of Closed-Face TBM be extended even farther south along Flower Street from 4th Street to 5th Street, budget permitting. Metro also conducted additional analysis of the extent to which mitigation measures could reduce noise and vibration in Japanese Village. In advance of the meeting to approve the Project, Metro staff recommended that the Board adopt additional mitigation measures for Japanese Village.
On April 26, 2012, the Metro Board adopted the staffs recommendations and voted to approve the project. The FTA issued its Record of Decision approving federal funding for the Project on June 29, 2012. The ROD includes a mitigation monitoring and report plan (“MMRP”) as Attachment A.
E. District Court’s Decision, Final Supplemental Environmental Impact Statement, and Supplemental Record of Decision
Japanese Village, Bonaventure, and a third plaintiff filed complaints challenging Appellees’ NEPA compliance in January 2013. The parties brought cross-motions for summary judgment. The district court granted summary judgment in favor of Appellees on all claims except for one claim on which Bonaventure prevailed. Japanese Village and Bonaventure timely appealed several aspects of the district court’s summary judgment ruling in favor of Appellees,
In December 2015, during the pendency of these appeals, Appellees published a Final Supplemental Environmental Impact Statement (“FSEIS”) and Supplemental Record of Decision. Appellees prepared the FSEIS because the district court had entered an injunction in connection with the one claim on which Bonaventure prevailed, requiring FTA and Metro to adequately analyze the open-face tunneling alternatives on Lower Flower before beginning cut and cover construction in that area. In addition to the analysis required by the district court, the FSEIS included discussion of Closed-Face TBM on Lower Flower and expressly adopted the additional mitigation measures for Japanese Village.
II, STANDARD OF REVIEW
We review the district court’s summary judgment ruling de novo. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Under the Administrative Procedure Act, a “reviewing court shall ... hold unlawful and set aside agency action, findings, and' conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “[I]n making the factual inquiry concerntog whether an agency decision was ‘arbitrary or capricious,’ the reviewing court ‘must consider whether the decision was based'on a consideration of the relevant factors and whether there has been a clear error of judgment.’ This inquiry must ‘be searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) abrogated in part on other grounds as recognized in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
III. JAPANESE VILLAGE CLAIMS
Japanese Village argues that the FTA failed to comply with NEPA’s procedural requirements for creating a Record of Decision because the ROD in this case incorporates mitigation measures by reference. More significantly, Japanese Village argues that the FEIS does not include adequate analysis and mitigation discussion of: (1) construction-related noise and vibration impacts; (2) long-term, operational noise and vibration impacts; (3) subsidence risk; and (4) parking impacts. We address these arguments in ton.
A. Judicial Notice of Material on Metro Website
As a preliminary matter, Japanese Village requests that we take judicial notice of three documents on Metro’s website: (1) a copy of the federal R.OD in this case; (2) “Attachment A: Mitigation Monitoring and Reporting Program” (or “MMRP”); and (3) a web page containing links to these two documents. Japanese Village offers these documents to show that Appellees’ “official” MMRP on the website matches one of the several versions of the MMRPs in the appellate record. Appellees argue that judicial notice is unnecessary because the FTA’s Region IX Administrator submitted a declaration identifying the correct versions of the ROD and its Attachments in the existing record. The declarant confirmed that these documents are the same ones on Metro’s website.
Judicial notice might ordinarily be appropriate for the documents on Metro’s website because the documents were “made publicly available by government entities ... and neither party disputes the authenticity of the web site[ ] or the accuracy of the information displayed therein.” Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (citing Fed. R. Evid. 201). The parties at least agree that the website contains the “official” copies of the ROD and its attachments. In this case, however, it appears that the Court need not rely on the Metro website because the documents for which Japanese Village seeks judicial notice are already in the appellate record. Accordingly, we decline to take judicial notice of the three documents on Metro’s website.
B. Adequacy of the Record of Decision’s Assembly
An ROD must “[sjtate whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. A monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation.” 40 C.F.R. § 1505.2(c). Japanese Village argues that the ROD in this case fails to summarize Appellees’ monitoring and enforcement program as required, apparently because the ROD references an “Attachment A: Mitigation Monitoring and Reporting Program,” but the MMRP is not directly “attached” to the ROD. Rather, there is 'a gap in the page numbering before the MMRP appears in the administrative record, and, as noted above, the MMRP is in a separate electronic file from the ROD on Metro’s website.
Appellees argue that Japanese Village waived any argument that the FTA improperly assembled the ROD because Japanese Village failed to present this argument to the district court. “Absent exceptional circumstances,” we “generally will not consider arguments raised for the first time on appeal,” although we have discretion to do so. Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir. 2011). The Court “may exercise this discretion (1) to prevent a miscarriage of justice; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one of law.” Id. Japanese Village acknowledges in reply that it did not raise the issue of an ROD assembly defect with the district court. Moreover, Japanese Village does not argue that any exceptional circumstances require us to consider its assembly defect arguments. Accordingly, we decline to consider Japanese Village’s argument that the MMRP was not properly attached to the ROD.
C. Adequacy of Environmental Impact Statement
Japanese Village challenges the adequacy of the mitigation plan included with the FEIS that issued in January 2012. An EIS, which chronologically precedes an ROD, must include a discussion of possible steps to mitigate environmental harm. The U.S. Supreme Court has described the mitigation requirement as follows:
[O]ne important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences. The requirement that an EIS contain a detailed discussion of possible mitigation measures flows both from the language of the Act and, more expressly, from CEQ’s implementing regulations. Implicit in NEPA’s demand that an agency prepare a detailed statement on “any adverse environmental effects which cannot be avoided should the proposal be implemented,” 42 U.S.C. § 4332(C)(ii), is an understanding that the EIS will discuss the extent to which adverse effects can be avoided.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citation omitted). As the Supreme Court and Ninth Circuit have acknowledged, NEPA “does not mandate particular results, but simply prescribes the necessary process.” Id. at 350, Í09 S.Ct. 1835 (explaining that “[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs”); Conner v. Burford, 848 F.2d 1441, 1450 (9th Cir. 1988) (clarifying that “NEPA does not require that mitigation measures completely compensate for the adverse environmental effects”).
Japanese Village takes issue with four aspects of Appellees’ mitigation plan, described below.
1. Construction-Related Noise and Vibration
Japanese Village first argues that Ap-pellees have not adequately addressed noise and vibration from construction of tunnels under the Japanese Village property. As described above, the FEIS was issued in January 2012. The FEIS noted that during operation of the tunnel-boring machine, certain portions of Japanese Village could sometimes experience ground-borne vibration (GBV) of 86 VdB and ground-borne noise (GBN) of approximately 51 dBA. Japanesé Village businesses fall into a category of land use for which the federal annoyance criteria for infrequent vibration and noise are 83 VdB and 48 dbA, respectively. Id. Thus, the FEIS recognized that without some mitigation, construction could cause significant impact to Japanese Village. The FEIS described several mitigation measures, numbered with the prefix “NV-,” that could reduce noise and vibration at various construction locations. The measures include proper “maintenance and operation” of equipment and use of a “resilient mat” for delivery-trains, among others. The FEIS also provided that “Metro shall monitor GBN and GBV levels in the in the [sic] building adjacent to TBM activity during its operation in that area” and that “[d]uring the few days the TBM will be operating in this area, should GBN or GBV measurements exceed FTA annoyance criteria for short-term impacts during construction, Metro shall offer to temporarily relocate affected residents.”
During the comment period for the FEIS, Japanese Village told Metro, that the proposed noise and vibration mitigation measures described in the FEIS were inadequate. Specifically, Japanese Village argued that particular mitigation measures adopted for other construction locations, including NV-19, NV-21, NV-22, NV-23, and NV-27, should also apply to Japanese Village.
Between the time the FEIS was issued and the time Metro approved the Project on April 26, 2012, Metro conducted additional analysis, and its experts estimated the extent to which additional mitigation measures could reduce noise and vibration in Japanese Village. In advance of the meeting to approve the Project, Metro recommended that additional mitigation measures be adopted for Japanese Village, including NV-19 (maintaining machinery); NV-21 (speed of delivery trains); NV-22 (resilient mat); NV-23 (conveyor); NV-27 (resiliently supported fasteners); and TR-1 (traffic management). Ultimately, Metro approved the Project on April 26, 2012, and the FTA issued its ROD, including the MMRP described above, in June 2012.
On appeal, Japanese Village argues that Metro ignored the advice of its experts because Metro did not actually vote to approve the additional mitigation measures. Japanese Village also argues that as a matter of law, relocation cannot be used as a mitigation measure.
a. Whether Metro Adopted Mitigation Measures
Relying primarily on a transcript of Metro’s April 26, 2012 board meeting, Japanese Village argues that Metro’s board voted to defer all mitigation measures rather than adopt the additional measures its expert had recommended. We find Japanese Village’s argument unpersuasive despite the lack of clarity in the April 26, 2012 transcript, which contains several references to “unintelligible” comments. Nevertheless, the transcript indicates that the board voted to approve “Item A through D as amended.” The board’s meeting minutes clarify that “Item D” referred to utilizing additional noise and vibration mitigation measures (NV-19, NV-21, NV-22, NV-23, and NV-27, defined above) at Japanese Village. Moreover, Attachment B to the ROD, “Summary of Comments and Responses to Comments on the Final EIS,” explicitly states: “Mitigation measures NV-19, NV-21, NV-22, NV[-]23, NV-27, and TR-1 specifically apply to the Japanese Village Plaza.” Japanese Village correctly points out that a May 14, 2012 summary of the results of the board’s April 26, 2012 action omits reference to the fact that measures NV-19 and1 NV-27 apply to Japanese Village. However, Appellees explain that this was simply a drafting error.
If there were any doubt that Metro formally adopted the proposed mitigation measures, those doubts were resolved on December 15, 2015 when the FTA and Metro issued a Final Supplemental Environmental Impact Statement. While the primary goal of the FSEIS was to further analyze use of a tunnel-boring machine along Lower Flower Street as ordered by the district court, the FSEIS also corrects the earlier drafting error and explicitly specifies that mitigation measures NV-19, NV-21, NV-22, NV-23, and NV-27 apply to Japanese Village. Japanese Village’s argument that Metro has not adopted the corrected mitigation plan from 2015 is unpersuasive because, as explained above, the most reasonable reading of the record indicates that Metro adopted the relevant mitigation measures even in 2012.
We also find unpersuasive Japanese Village’s argument that Appellees failed adequately to analyze the effectiveness of proposed mitigation alternatives. The March 28, 2012 expert study that Japanese Village asserts was overlooked by Appellees estimates the reduction in noise and vibration that proposed mitigation measures would provide.
In sum, we find that Appellees analyzed and adopted additional mitigation measures for construction-related noise and vibration in Japanese Village after the release of the FEIS, and Appellees documented these measures in the June 2012 ROD. We conclude that the failure to see the need for these mitigation measures at the time the FEIS was released in January 2012, as evidenced by the fact that these measures were analyzed and adopted later, did not violate NEPA.
b. Whether Relocation is a Permissible Mitigation Measure
Notwithstanding the fact that Metro adopted measures to mitigate construction-related noise and vibration, the parties appear to agree that construction-related noise and vibration may at least temporarily exceed federal standards in parts of Japanese Village. Thus; it is quite possible that Appellees’ planned mitigation step of assisting residents and businesses with temporary relocation will be necessary. Japanese Village argues that relocation does not constitute mitigation as a matter of law.
Japanese Village and Appellees both rely on the text of the relevant NEPA regulation, which states: '
Mitigation includes:
(a) Avoiding the impact altogether by not taking a certain action or parts of an action.
(b) Minimizing impacts by ■ limiting the degree or magnitude of the action and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
(d) ‘Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.-
(e) Compensating for the impact by replacing or providing substitute resources or environments.
40 C.F.R. § 1508120. Japanese Village argues that this list is exclusive and that sinqe ' relocation does not appear in 40 C.F.R. § Í508.20, it is not a valid mitigation measure. Appellees argue that relocation could fall under subdivision (e) of the regulation because relocation “provid[es] substitute ... environments” for displaced residents. Moreover, Appéllees argue, the regulation merely defines what mitigation “includes.” Appellees argue that the regulation permits mitigation measures that are not specifically enumerated in the text.
The cases cited by Japanese Village,do not directly address whether relocation is a valid mitigation measure under 40 C.F.R. § 1508.20 or NEPA generally. For exam-pie, In re Katrina Canal Breaches Consolidated Litigation, No. 05-4192, 2011 WL 651946, at *4 (E.D. La. Feb. 11, 2011) merely noted in dicta that one of the goals of a project was to “avoid and minimize relocations and other impacts to local residents and businesses to the maximum extent practicable.” As Japanese Village notes, Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178 (8th Cir. 2001) dealt with the relocation of airplanes, not people. Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory Commission, 869 F.2d 719 (3d Cir. 1989), also cited by Japanese Village, simply noted that agencies should consider socioeconomic impacts of federal projects, including the impact of relocation. Finally, the district court in Monarch Chemical Works, Inc. v. Exon, 452 F.Supp. 493, 500 (D. Neb. 1978) ruled that a project required an EIS in part because of “the environmental consequences of the relocation of an entire community.”- None of these cases addresses the definition of “mitigation.”
Japanese Village also argues that in cases in which relocation is necessary, the government must comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the “Relocation Act”), 42 U.S.C. §§ 4601 et seq. Japanese Village correctly points out that courts have enjoined federal projects that fail to comply with the Relocation Act. In a notice of errata filed after Japanese Village filed its reply brief, however, Japanese Village acknowledges that the EIS in the instant case actually does consider the Relocation Act. For example, a page of the Mitigation Monitoring and Reporting Program indicates 'that “Metro shall provide relocation assistance and compensation as required by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.” Japanese Village does not claim that Appellees have violated the Relocation Act, so any argument that the Project could be enjoined on that basis does not apply.
Ultimately, we need not decide whether relocation can ever be a valid mitigation measure under NEPA because “NEPA does not require that mitigation measures completely compensate for the adverse environmental effects.” Conner, 848 F.2d at 1450. The Supreme Court’s example in Robertson is instructive:
[I]t would not have violated NEPA if the Forest Service, after complying with the Act’s procedural prerequisites, had decided that the benefits to be derived from downhill skiing at Sandy Butte justified the issuance of a special use permit, notwithstanding the loss of 15 percent, .50 percent, or even 100 percent of the mule deer herd.
Robertson, 490 U.S. at 351, 109 S.Ct. 1835. In the instant case, regardless of whether relocation is considered a mitigation measure or a source of harm, Appellees would not have violated NEPA as long as they took a hard look at each alternative and discussed the extent to which adverse effects can be avoided. Not only did Appel-lees examine various noise and vibration mitigation measures, Appellees also went beyond NEPA’s procedural requirements and committed to implementing the mitigation measures that Japanese Village requested.
2. Operational Noise and Vibration
Japanese Village next argues that Ap-pellees violated NEPA by not specifically requiring “isolated slab track” technology (“1ST”) to mitigate operational noise and vibration from trains passing below Japanese Village. For so-called “Category 3” land uses such as the offices at Japanese Village Plaza, federal vibration and noise guidelines for “frequent” events such as a single train passing beneath are 75 VdB and 40 dBA respectively. The vibration and noise guidelines for “occasional” events such as two trains passing at once are 78 VdB and 43 dBA. Id. In a March 2011 report, Appellees’ engineers found that without mitigation, operational noise (but not vibration) could exceed these levels.
To address operational noise and vibration, in the January 2012 FEIS, Appellees’ mitigation plan included the following measures:
In the vicinity of the Hikari Lofts and Nakamura Tetsujiro Building, Metro shall conduct engineering studies during final design to verify initial estimates of GBN and shall implement high compliance resilient fasteners, floating slab trackbed, or other appropriate measures as needed to eliminate impacts and to reduce GBN below FTA annoyance criteria. (NV-28)
In the vicinity of the offices at JVP and the Broad Art Foundation Museum, currently under construction, Metro shall conduct engineering studies during final design to verify initial estimates of GBN and shall implement high compliance resilient fasteners or other appropriate measures as needed to eliminate impacts and reduce GBN below FTA annoyance criteria. (NV-29)
At the time of the FEIS, Appellees did not expect that 1ST would be necessary.
As with the construction-related noise and vibration analysis, however, an engineering report issued after the FEIS suggested that without 1ST, the noise levels at Japanese Village Plaza would exceed federal limits. Japanese Village argues that it was an abuse of discretion for the FTA to “ignore the most recent and reasoned reports from its experts” and allow the use of mitigation means other than 1ST without an appropriate explanation.
Japanese Village’s argument is unpersuasive for two reasons. First, “an agency need not supplement an EIS every time new information comes to light after the EIS is finalized.” Marsh, 490 U.S. at 373, 109 S.Ct. 1851. In this case, the January 2012 FEIS accounted for the possibility that “other appropriate measures” could be taken “as needed to eliminate impacts and reduce GBN below FTA annoyance criteria.” Second, as with the mitigation measures Japanese Village requested to reduce construction-related noise and vibration, Appellees specifically adopted 1ST for Japanese Village when the Metro board approved the Project on April 26, 2012. The meeting minutes reflect: “NV-27 — In the vicinity of the ... Japanese Village Plaza ... Metro shall use resiliently supported fasteners, isolated slab track technology, or other appropriate measures as needed to eliminate impacts and to reduce GBN below FTA annoyance criteria.” Attachment B to the ROD states: “Mitigation measures NV-19, NV-21, NV-22, NV[-]23, NV-27, and TR-1 specifically apply to the Japanese Village Plaza.” Moreover, the December 15, 2015 Final Supplemental Environmental Impact Statement explicitly states that mitigation measure NV-27, which includes 1ST, applies to Japanese Village. Accordingly, to the extent that Japanese Village complains about a lack of implementation of 1ST (as opposed to a lack of discussion in the FEIS), Japanese Village’s argument is now moot.
3. Subsidence
Japanese Village argues that Appellees’ plan to mitigate potential building subsi-denee due to tunneling under Japanese Village is not sufficiently detailed. Specifically, Japanese Village argues that the FEIS should have explicitly required that a 0.25 inch settlement in any building would trigger the use of compensation grouting.
An EIS must “discuss mitigation measures, with sufficient detail to ensure that environmental consequences have been fairly evaluated.” S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of the Interior, 588 F.3d 718, 727 (9th Cir. 2009) (per curiam) (citation omitted) (internal quotation marks omitted). In South Fork Band, we found an EIS inadequate where it stated that “[feasibility and success of mitigation would depend on site-specific conditions and details of the mitigation plan,” but the EIS omitted any discussion of “whether the anticipated harms could be avoided by any of the listed mitigation measures.” Id. Japanese Village argues that Appellees’ MMRP improperly defers analysis in favor of future studies and site-specific investigation.
In'the instant case, the MMRP includes three pages of measures designed to combat building subsidence. One of the measures included in the MMRP states, in relevant part:
GT-1: While engineering designs are being finalized, but before any construction, a survey of structures within the anticipated zone of construction influence shall be conducted in order to establish baseline conditions_ If assessments indicate the necessity to proactively protect nearby structures, additional support for the structures by underpinning or other ground improvement techniques shall be required prior to the underground construction. Metro shall require the construction contrac-
tor to limit movement to less than acceptable threshold values for vertical, horizontal, and angular deformation as a performance standard. These acceptable threshold values shall be established such that the risk of damage to buildings and utilities will be negligible to very slight. For buildings, these threshold values will be based on the relationship of building damage to angular distortion and horizontal strain consistent with Boscardin and Cording (1989) and qualitative factors including but not limited to the type of structure and its existing condition_! Additional data and survey information shall be gathered during final design for each building and utility main to enable assessment of the tolerance of potentially affected structures and utilities.
Another mitigation measure in the MMRP states:
GT-2: Ground improvement such as grouting or other methods shall be required to fill voids where appropriate and offset potential settlement when excess material has been removed during excavation. The criteria for implementing grouting or ground improvement measures shall be based on the analysis described in mitigation measure GT-1.
These mitigation measures are not specific to Japanese Village, and Japanese Village argues that the lack of specificity does not allow for adequate evaluation of the measures’ impact,
While, at first glance, these mitigation measures seem to lack detail, the manner in which Appellees worked to develop the measures shows that Appellees sufficiently considered the effectiveness of each proposal. After the FEIS was issued but before the ROD was signed, Metro asked an expert to assess the potential effects of underground construction on existing Japanese Village buildings. The expert concluded that without mitigation, three buildings in Japanese Village were anticipated to have “moderate” to “very severe” damage due to subsidence. The expert recommended that as “soon as buildings show a settlement value approaching 0.25 inches, compensation grouting would be activated under the building in order to counteract tunneling settlement developing under it.” The expert opined:
With the successful implementation of compensation grouting, the settlement under these buildings could be, controlled to acceptable levels. At the present level of analysis, which is empirical settlement will have to be limited to 0.25 inches for “Negligible” damage, or 0.5 in. for “Slight” damage, which by definition in practice nonstructural and cosmetically repairable.
This expert study, issued on April 9, 2012, was part of the administrative record when Appellees issued their ROD in on June 29, 2012. Unlike the EIS rejected in South Fork Band, Appellees’ proposed mitigation measures, when viewed in light of the analysis provided by Appellees’ expert, are sufficient to allow for an evaluation of effectiveness. Thus, we agree with the district court that Appellees’- analysis satisfies the purpose of NEPA, “to ensure that agencies carefully consider information about significant environmental impacts.” N. Plains Res. Council, Inc. w. Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011).
Our conclusion is also consistent with that of a recent case cited in Japanese Village’s notice of supplemental authority. In Protect Our Communities Foundation v. Jewell, 825 F.3d 571, 582 (9th Cir. 2016), we approved an EIS that included, among other things, an “adaptive management plan” that “provide[dj flexibility in responding to environmental - impacts through a regime of continued monitoring and inspection.” While a mere promise to develop site-specific mitigation measures in the future might not pass muster, “the use. of such a continuous monitoring system may complement other mitigation measures, and help to refine and improve the implementation of those measures as the Project progresses.” Id.
For the reasons set forth above, we conclude that Appellees’ plan to mitigate subsidence was not arbitrary and capricious; an abuse of discretion, or otherwise in violation of the law.
⅛. Parking
Finally, Japanese Village argues that Appellees failed to adequately consider the increased demand that the new Little Tokyo transit station will place on Japanese Village’s existing parking structure. Because the new transit station will not provide additional parking and will be located only 16 feet from Japanese Village’s parking structure, Japanese Village worries that the parking used by its employees and customers will be overrun by rail commuters. While Japanese Village'acknowledges that Appellees ■ conducted parking studies, it argues that Appellees’ analysis of the impact on Japanese Village’s parking structure — as opposed to other off-street and on-street parking— was insufficient.
Appellees rely on several portions of the record to support their argument that Ap-pellees’ parking analysis was adequate. For example, Appellees point out that they created a 160-page transportation analysis study, which included extensive discussion about the impact on parking. Appellees also cite the Station Planning Toolkit, attached as Appendix J to the FEIS, which notes that 600 additional parking spaces are expected in Little Tokyo as part of a new mixed-use development. The portion of Appellees’ analysis that seems most directly- responsive to Japanese Village’s concern about off-street parking is in a paragraph in Chapter 4 of the FEIS:
Typically, privately-operated parking lots are considered transitional land uses that could be developed by the owners for higher and better uses. Several other privately-operated parking lots and structures are located in the vicinity. Loss of the current parking lot may cause an inconvenience for users but it would not represent a significant impact. Parking demand in the area would be partially offset by the increased public transit access provided by the proposed project. However, Little Tokyo residents and business owners have indicated that parking spaces are important community resources, and that the loss of this parking could negatively impact the adjacent small businesses and the JANM located across the street. The community is concerned that this could, in turn, affect the economic stability and. ultimately the character of the community. Therefore, prior to construction of the alternative, Metro would conduct an annual parking capacity study of the Little Tokyo area during construction to determine if there is sufficient parking availability without these parcels. Metro would also make a portion of the Mangrove property available for valet parking to offset the parking loss. This change would not be a significant impact with respect to displacements.
Another portion of the FEIS notes the “[permanent displacement of approximately 270 off-street parking spaces” due to the Project, approximately 130 of which are in Little Tokyo. Among other things, Appellees argue that because surface parking is a “transitional land use,” long-term parking availability may decline even in the absence of the Project.
There are no NEPA thresholds for determining the significance of parking impacts, and Japanese Village has not cited any cases in which a court has found an EIS inadequate for failure to consider increased demand on an existing parking structure. The two district court cases on which Japanese Village relies arguably support Appellees’ position that their analysis was adequate. Japanese Village criticizes Appellees for “philosophizfing]” that improved transit service may reduce the need for parking. However, in California Coastal Commission v. U.S. Department of the Navy, 22 F.Supp.3d 1081, 1103 (S.D.Cal. 2014), which Japanese Village cites, the court noted that “increased public transportation in the downtown areas” may reduce demand for parking. Moreover, the court found the Navy’s parking analysis .sufficient even though the Navy found that the parking impact of the project at issue “may be unmitigable.” Id. In Crenshaw Subway Coalition v. Los Ange-les County Metropolitan Transportation Authority, No. CV 11-9603 FMO, 2015 WL 6150847, at *26 (C.D. Cal. Sept. 23, 2015), the court affirmed an agency determination, based on a parking survey, that a light rail project “will not result in a significant impact because the combination of both on- and off-street parking provides enough total parking spaces to meet the demand in the area.” Here, as noted above, Metro plans to “conduct an annual parking capacity study of the Little Tokyo area during construction to determine if there is sufficient parking availability.”
The only appellate case that we have found analyzing a parking problem even somewhat similar to the one at issue here, Chelsea Neighborhood Associations v. U.S. Postal Service, 516 F.2d 378, 387-88 (2d Cir. 1975), held that an EIS was inadequate in part because it failed to discuss where 800 residents and 1,500 employees of a planned mixed-use development would park. As explained above, however, Appel-lees in the instant case provided at least some analysis of the Project’s parking impacts and likely mitigating factors.
We conclude that Appellees’ analysis of off-street parking impacts is sufficient to pass muster under NEPA. “NEPA imposes no substantive requirement that mitigation measures actually be taken_” Robertson, 490 U.S. at 353 n.16, 109 S.Ct. 1835. Appellees estimated the number of parking spaces that could be lost in Little Tokyo due to the Project, but they also estimated the number of spaces that they expect the area to gain from other development. Appellees discussed how increased use of püblic transit would at least partially offset the need for additional parking. Appellees also discussed possible mitigation measures. The record indicates that Appellees took the requisite “hard look” at the parking impacts' of the proposed Project before it was approved.
IV. BONAVENTURE CLAIMS
Bonaventure argues that Appellees (1) failed to analyze Closed-Face TBM construction as a reasonable alternative tunneling method for the Lower Flower portion of the Project in the FEIS; (2) failed to adequately analyze certain impacts and impermissibly deferred- certain mitigation analyses in the FEIS; and (3) failed to prepare a Supplemental EIS to analyze nighttime construction. We address these arguments in turn.
A. Analysis of Closed-Face TBM on Lower Flower
“The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Friends of Yosemite Valley v. Kempthome, 520 F.3d 1024, 1038 (9th Cir. 2008) (quoting Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995)). An “agency must look at every reasonable alternative ...,” id. but an “agency need not ... discuss alternatives similar to alternatives actually considered, or alternatives which are ‘infeasible, ineffective, or inconsistent with the basic policy objectives for- the management of the area,’” N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir. 2006) (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1180-81 (9th Cir. 1990)). For alternatives that are “eliminated from detailed study,” agencies must “briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a)
1. Feasibility Determination in the FEIS
Appellees addressed Closed-Face TBM in the FEIS, adopting the construction technique for some parts of the Project but rejecting it as infeasible south of 4th Street because of three impediments: (1) the “pocket track” requirement, (2) the requirement to preserve the option of building a 5th and Flower Street station in the future, and (3) the presence of “tiebacks.” “[Technical determinations of the agency, reflecting the application of its specialized expertise, merit particular deference, ...” See Protect Our Cmtys., 825 F.3d at 581 (finding that agency reasonably excluded alternative after determining it would present “significant feasibility issues”); see also Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 871 (9th Cir. 2004) (finding that agency has discretion to reject alternatives deemed ineffective for accomplishing project’s goals). .
Despite the assessment in the FEIS, Bonaventure argues that Closed-Face TBM was a viable alternative on Lower Flower because the three impediments identified by Appellees had been eliminated before issuance of the FEIS. The record, however, does not show that the requirement to -preserve the option of building another .station in the future had been eliminated or that the issue of tiebacks had been resolved by the time Ap-pellees issued the FEIS. Therefore,- we And no basis for concluding that Appel-lees were 'arbitrary or capricious in finding that Closed-Face TBM was not feasible on Lower Flower.
a. Pocket. Track Requirement
A “pocket track” is a third track with connecting switches for train storage and passing located between two main tracks and is used to enable quick recovery of the transit system when a train has to be taken out of service. Crossover tracks allow trains traveling in either direction on either track to move to the other track and continue traveling in .the same direction without stopping and can be used to allow trains to bypass a stalled train or turn back in the opposite direction. Neither a pocket track nor a crossover track can be constructed using Closed-Face TBM..
Bonaventure argues that Closed-Face TBM became feasible for Lower Flower once the pocket track requirement south of 4th Street was eliminated from the Project in 2011. Appellees contend that although the pocket track requirement was eliminated, it was replaced with a crossover track requirement, which would similarly preclude use of Closed-Face TBM.
Although the record before us is somewhat ambiguous, it seems that neither a pocket track nor a crossover track was a Project requirement for Lower Flower by the time Appellees issued the FEIS. The DEIS and SEA contemplate a pocket track in the area of Lower Flower. But Metro’s April 2012 Draft Tunnel Study states that the pocket track requirement was eliminated in December 2011 because “[crossovers in the underground alignment would mitigate service delays and a pocket or storage tracks could be used in adjacent project locations....” The FEIS itself states that a “pocket track, which could also serve as a crossover, would be located beneath Flower Street between 4th and 6th Streets,” but also suggests that crossovers and pocket tracks “may not be needed at all of [the listed] locations” and that the Flower Street pocket track “is being considered for relocation as a refinement to the Locally Preferred Alternative.”
Assuming that the pocket and/or crossover track requirement had been eliminated or relocated, Appellees may well have violated NEPA if they had relied solely on pocket track incompatibility to find Closed-Face TBM infeasible on Lower Flower. An agency “must look at every reasonable alternative, with the range dictated by the nature and scope of the proposed action.” Alaska Wilderness Recreation, 67 F.3d at 729 (emphasis added) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 (9th Cir. 1992)). We need not decide that question, however, because Ap-pellees rejected the Closed-Face TBM as infeasible on Lower Flower for two other reasons — namely, the existence of tiebacks ha the area and the Project requirement to preserve the option of a future Flower/5th/4th Street Station.
b. Flower/5th/Ith Street Station
Bonaventure argues that Closed-Face TBM became feasible in October 2010 when the Flower/5th/4th Street' station was dropped from the Project plan. This argument ignores that the Project still required preservation of the option to'build a future Flower/5th/4th Street station. The future station option — rather than the station itself — -is Metro’s stated reason for rejecting the Closed-Face TBM alternative in the FEIS: “Using tunnel boring machine construction would also create some challenges on the ability of not precluding a 5th and Flower station as the alignment would be changed from a box structure to separate bored tunnels.”
Bonaventure suggests that the Project requirement for a future station option was not adopted until April 26, 2012 and was therefore not a legitimate reason to reject Closed-Face TBM as infeasible in January 2012. The April 26, 2012 Metro Board Meeting Minutes cited by Bonaventure list “preserving] the opportunity to install a future station north of 5th and Flower Streets” as an approved amendment to the Locally Preferred Alternative, but the Minutes do not actually show when the amendment was approved. The January 2012 FEIS itself states that “the design of the Locally Preferred Alternative would not preclude a station at 5th and Flower Streets from being built as a possible future, separate project.” ■ Therefore, the record does not establish that the requirement to preserve a future station option had been eliminated from the Project before the FEIS was issued.
c. Tiebacks
Tiebacks are temporary stabilization systems made out of steel that were typically left in place after basement construction in the area. In the DEIS, Appellees note that such “obstructions would potentially be problematic for TBM excavation on Flower Street due to the shallow depths of the tunnels, which is partly why cut and cover construction is planned for this area.” In the FEIS, Appellees stated that use of TBM “south of 4th Street would not be practicable due to the need to remove tie-backs ahead of the tunnel boring machine.”
Bonaventure’s only evidence that Appel-lees did not consider tiebacks to be an issue is Metro’s April 25, 2012 Draft Tunnel Study, which post-dates the FEIS and examines a low-alignment option that Metro developed in response to public comment on the FEIS. The profile of the low-alignment alternative ' examined in the Draft Tunnel Study “is such that it is assumed to be below all of the existing tiebacks based on available information,” but Metro notes that the low alignment option “would generate additional impacts” and “require other project changes.”
There' is no pre-FEIS evidence to show that Appellees believed that the tiebacks impediment on Lower Flower could be overcome by changing the alignment of the tunnel along Lower Flower. In fact, when Metro studied the issue in 2011, it concluded that it was “not possible to miss the tiebacks with a profile change” because the Lower Flower tunnel segment was “not long enough to permit a tunnel profile with the tunnel grades required to get down under the tiebacks.” We affirm the district court’s finding that Bonaventure has made no showing of that Appellees were arbitrary and capricious in rejecting the use of Closed-Face TBM on Lower Flower in the FEIS.
2. Effect of Post-FEIS Feasibility Admission
After the FEIS was published, Metro accepted public comment and continued to examine options for' extending the use of Closed-Face TBM on Flower south of 4th Street. During a series of community stakeholder meetings in March 2012, Metro discussed the possibility of extending the use of Closed-Face TBM ,by “deepening the vertical alignment to avoid the 4th Street piling system foundation; resulting in lowering the 2nd/Hope Street Station,” and “continu[ing] the TBM configuration from 4th Street to just south of 5th Street, assuming no or minimum tie-back encountered.” In a Draft Tunnel Study dated April 25, 2012, Metro stated that it had determined that “it was potentially possible to extend the TBM tunneling to 5th Street, subject to economic feasibility,” and had presented the low-alignment option to Metro’s Board in March 2012. On April 26, 2012, Metro’s Board adopted its staffs recommendation to extend the use of Closed-Face TBM to 5th Street, if it could'be done within the Project’s budget.
We agree, with the district court that Appellees’ post-FEIS admission of feasibility does not establish that the FEIS was procedurally deficient. “[T]he role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is.... limited ... by the time at which the decision was made.” Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Bonaventure argues that Vermont Yankee is distinguishable because it involved a party seeking to reopen agency proceedings that had been closed for over a year, while in this case, Appellees admitted the feasibility of the alternative before the FTA issued its record of decision. We are cognizant, however, that “[administrative consideration of evidence ... always creates a gap between the time the record is closed and the time the administrative decision is promulgated,” and if litigants could demand further analysis each time “some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.” Id. at 554-55, 98 S.Ct. 1197 (quoting Interstate Commerce Comm’n v. Jersey City, 322 U.S. 503, 514, 64 S.Ct. 1129, 88 L.Ed. 1420 (1944)); see also Envtl. Def. Fund, Inc. v. Hoffman, 566 F.2d 1060, 1072 n.19 (8th Cir. 1977) (“[N]ot every addition to the EIS made in response to comments is such as to require a formal supplement to the EIS which must be processed in the same fashion as a new EIS for to do so would make the' NEPA review process be one without end;”).
The “ ‘touchstone’ for courts reviewing challenges to an EIS under NEPA ‘is whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.’ ” Westlands, 376 F.3d at 872 (quoting California v. Block, 690 F.2d 753, 767 (9th Cir. 1982)). In this case, the process seems to have worked. Appellees were not required to accept public comments after publishing the FEIS. See 40 C.F.R. § 1503.1 (b) (“agency may request comments on a final environmental impact statement”) (emphasis added). Yet Appel-lees engaged in continued dialogue with stakeholders and refined the Project in response to community concerns. A finding that Appellees were arbitrary and capricious in determining that Closed-Face TBM was infeasible based solely on Appel-lees’ subsequent admission that they were wrong is unlikely to foster informed decision-making and public participation; rather it is likely to discourage agencies from responding to post-FEIS public comments in the future. Nee, e.g., Block, 690 F.2d at 771 (noting that “[i]f an agency must file a supplemental draft EIS every time any modifications occur, agencies as a practical matter may become hostile to modifying the alternatives to be responsive to earlier public comment”).
To the extent Bonaventure argues that Appellees’ eventual admission of feasibility establishes that Appellees should have known Closed-Face TBM was technically feasible on Lower Flower all along, the argument is a substantive one and therefore “beyond the scope of our review.” City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1159 (9th Cir. 1997). As noted by the district court, Bonaventure may have preferred that Appellees reach a different conclusion in the FEIS, but that preference does not establish that Appellees were arbitrary or capricious in determining that the alternative was not feasible.
B. Adequacy of Analysis of Project Impacts and Mitigation
Bonaventure also challenges the sufficiency of the impact analysis in the FEIS. “NEPA ‘does not mandate particular results, but simply describes the necessary process that an agency must follow in issuing an EIS.’ ” Westlands, 376 F.3d at 865 (quoting Robertson, 490 U.S. at 349, 109 S.Ct. 1835). “A court must avoid passing judgment on the substance of an agency’s decision. Its focus must be on ensur ing that agencies took a ‘hard look’ at the environmental consequences of their decisions.” Id. (quoting Robertson, 490 U.S. at 350, 109 S.Ct. 1835). Mitigation of environmental impacts must “be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.” Carmel-By-The-Sea, 123 F.3d at 1154 (quoting Robertson, 490 U.S. at 353, 109 S.Ct. 1835). An EIS, however, “need not contain a ‘complete mitigation plan’ that is ‘actually formulated and adopted.’” Id. (quoting Robertson, 490 U.S. at 353, 109 S.Ct. 1835).
1. Grade Separation Impact Analysis
Bonaventure is concerned about the impact of “grade separation” between the concrete decking — which will cover the trench created by cut and cover construction — and existing sidewalk and driveway elevations. Bonaventure argues that Ap-pellees acknowledged the possibility of grade separation in the FEIS, but then failed to quantify the possible extent or analyze the impacts it may have on freeway and garage access. The district court found that the FEIS satisfied NEPA’s “hard look” requirement. We affirm.
The FEIS states that decking “may be either flush with the existing street surface, or raised above the street surface with Americans with Disabilities Act (ADA)-compliant ramps to allow continued vehicle and pedestrian access.” The FEIS also responds to public comments about the impacts of grade separation:
• Any decking configurations would require construction of ADA-compliant ramps and accesses as well as modifications to vehicular access points to the garages and driveway along Flower Street
• Any decking configurations would be designed to safely accommodate the undercarriage and overhead clearances of vehicles using the driveways, garages, and loading docks
• Access to and from the bus stop, shuttle area, and mid-block pedestrian . crossing would be accommodated in any decking configuration.
NEPA regulations require “only brief discussion of other than significant issues.” 40 C.F.R. § 1502.2 (b) (“Impacts shall be discussed in. proportion to their significance.”). “As in a finding of no significant impact, there should be only enough discussion to show why more study is not warranted.” Id. Because Appellees explained that any “decking configuration” would be designed to avoid significant impacts, we are satisfied that no further discussion is warranted. See Protect Our Cmtys., 825 F.3d at 583 (finding NEPA’s “hard look” requirement satisfied where agency “provided less analysis of noise effects in the EIS as compared to other more significant or unmitigable environmental impacts” because agency concluded that noise effects could be effectively reduced).
Bonaventure claims that grade separation may result in severe traffic congestion. Although the FEIS includes extensive traffic impact analysis, the analysis does not touch on grade separation, We find this to be consistent with Appellees’ treatment of grade separation as not likely to cause significant impacts; the traffic impact analysis need only contain “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Cannelr-By-The-Sea, 1-23 F.3d at 1150 (emphasis added). Bonaventure cites no evidence that grade separation will result in significant traffic impacts; we have no reason to conclude, therefore, that Appellees were required to take a harder look at the issue.
Bonaventure also objects that Appellees violated NEPA by improperly deferring the choice of decking configurations and indicating that environmental factors would not be considered in making the choice: “Decking configurations will be determined during the final design phase of the project, based on cost, schedule, and construction activity phasing considerations.” Having determined that there would not be significant environmental impacts from grade separation, Appellees did not act arbitrarily and capriciously in deferring the configuration decision or selecting the listed decision criteria in the FEIS. Moreover, we note that by the time the Project was approved, it included a design refinement stating that “South of 4th Street, construction decking shall be no higher than 10[ inches], if feasible, above the existing grade, and flush with existing curb on the east and west side of Flower Street with a maximum cross gradient of 3%.”
2. Emergency Vehicle Access Impact Analysis
Bonaventure is also concerned about the impact of construction on emergency vehicle access to adjacent properties, including the Westin Bonaventure Hotel. Bonaventure argues that the analysis of such impacts in the FEIS is conclu-sory and does not explain how the impacts would be mitigated. At first glance, some of the discussion of construction .impacts on emergency response in the FEIS appears conclusory. For example,. Metro states that it “would not allow construction activities to impede safe, evacuation of the buildings or access for emergency personnel at any time.” But the FEIS contains further explanation of how such goals would be achieved.
Appellees acknowledge that “[s]treet lane closures associated with construction activities could result in increased response times for emergency services (e.g., police and fire)” and that “[a]ny increase in response times for emergency services would be a potentially adverse construction impact.” But the FEIS also discusses mitigation of the impact of street closures:
Prior to the initiation of localized construction activities, a traffic management and construction mitigation plan shall be devised. The closure schedules in the construction traffic plan shall be coordinated to minimize impacts to residences, business, special events, and traffic flow.... [The] plan shall identify, for instance, proposed closure schedule and detour routes, [and] construction traffic routes..., Traffic flow shall be maintained, particularly during peak hours, to the degree feasible. Access to adjacent businesses shall be maintained at all times during business hours, and to residences at all times.
Appellees also indicate that “access to businesses would be maintained during business operating hours throughout construction .... Metro would keep entrances and exits clear of obstructions and would ensure that adequate exit routes and safe zones are maintained at all times during construction ...” Mitigation Measure SS-15 provides that “Metro shall keep sidewalks, entrances to buildings, lobbies, corridors, aisles, doors, or exits that remain in use by the public clear of obstructions.” Appellees acknowledge “[i]t may not be possible to keep all vehicular entrances to garages open at all times during operating hours,” but state that “Metro would ensure that access is provided via other vehicular entrances during those times as part of its goal to maintain access to businesses. Metro would coordinate with garage owners to ensure safety and minimize inconvenience.”
Appellees further- explain that Metro would coordinate with emergency services “to provide appropriate safety and security of the public using the Metro system, employees, and the surrounding communities,” Appellees state:
Metro would coordinate construction activities with emergency .service personnel to ensure, -that emergency services and response times are not impacted, as indicated in Section 4.15.4.1 of the Draft EIS/EIR. This coordination has been included as mitigation measure number CN-2 in the Mitigation Monitoring and Reporting Program for the Locally Preferred Alternative (Chapter 8 of this Final EIS/EIR).
And Mitigation Measure CN-2' states, “Early notification of traffic disruption shall be given to emergency service providers. Work plans and traffic control measures shall be coordinated with emergency responders to prevent impacts to emergency response times.” We are not persuaded that these mitigation measures are insufficient.
Bonaventure argues that' these mitigation -measures address only pedestrian access, not access for vehicles, but Mitigation Measure TR-1- addresses “[t]raffic circulation disruption” that-“would occur during construction.” Mitigation Measure SS-15 discusses safety and security measures with respect to “public use of work areas involving sidewalks, entrances to buildings, lobbies, corridors, aisles, stairways, and vehicular roadways."
Bonaventure argues that Appellees’ promise to maintain access during “business operating hours” is not sufficient because the Westin Bonaventure Hotel operates around the clock. But elsewhere in the FEIS, Appellees note that “Metro would maintain access to the hotel at all times during operating hours ...and specifically explain that “business operating hours” includes operating hours of “late-night business such as the 24-hour gym.”
Bonaventure also argues that it is not helpful for Appellees to provide access through “other vehicular entrances” for the Westin Bonaventure Hotel because the hotel’s only vehicular access is to Flower Street. We note that Bonaventure does not maintain that the hotel has only a single vehicular access point — Bonaventure’s statement merely implies that all vehicular access points lead to Flower Street. Bonaventure has not identified any particular impact that would result from this circumstance — Metro could maintain vehicular access to at least one of many Flower Street access points during construction. Even in the unlikely event that hotel has only a single vehicular entrance, nothing in the FEIS suggests that Metro would not maintain access to that entrance at all times — it. clearly states that “[a]ceess to adjacent businesses shall be maintained at all times during business hours.”
Bonaventure claims that providing early notification to emergency service providers does not address the loss of access caused by the Project. As discussed above, Appel-lees have explained how they will maintain access for emergency vehicles, albeit potentially more limited access than usual. Early notification to emergency services providers would help to prepare the emergency service providers to navigate the more limited access and thereby mitigate the impact of the Project.
Therefore, we affirm the district court’s finding that the FEIS includes reasonably thorough discussion of the impact on access for emergency vehicles.
S. Deferred Monitoring and Mitigation Measures
Bonaventure contends that Appel-lees have impermissibly deferred “myriad studies, surveys and mitigation plans” in violation of NEPA. NEPA requires discussion of “mitigation of reasonably likely impacts at the outset.” S. Fork Band, 588 F.3d at 727. The district court found that these mitigation measures were not arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. We affirm.
Bonaventure argues that' Mitigation Measures GT-1, NV-2, TR-1, CN-3, and NV-13 are too vague because each measure improperly call for measures that “shall” be developed later:
• GT-1: “acceptable threshold values shall be established such that the risk of damage to buildings and utilities will be negligible to very slight.”
• NV-2: “vibration monitoring plan shall be developed.”
• TR 1: “traffic management and construction mitigation plan shall be devised.”
• CN-3: “[t]raffic management and construction mitigation plan shall be developed.”
• NV-13: “construction mitigation plan shall prohibit noise levels generated during construction from exceeding the FTA construction noise criteria.”
The record shows, however, that in addition to proposing adaptive management plans, Appellees studied baseline conditions and conducted in depth analysis of the subsidence, vibration, traffic management, and noise impacts of the Project. The FEIS includes lengthy sections describing the impacts on “Geotechnical/Sub-surface/Seismic/Hazardous ' Materials,” “Noise and Vibration,” and “Transportation.”
Furthermore, the challenged mitigation measures themselves describe how the impacts will be monitored and what Appel-lees intend to do in response:
• GT-1 explains that the subsidence monitoring threshold is tied to “the relationship of building damage to angular distortion and horizontal strain consistent with Boscardin and Cording (1989) and qualitative factors including but limited to the type of structure and its existing condition.”
• NV-2 calls for “pre-construction surveys of all buildings within 21 feet of vibration producing construction activity” and states that any damage will be repaired.
• TR-1 describes measures to notify and coordinate with community members in scheduling construction.
• CN-3 states that the traffic management and construction mitigation plans will be developed “in coordination with community” and that “[grossing guards and other temporary traffic controls shall be provided ... as appropriate to maintain traffic flow during construction.”
• NV-18 involves monitoring using “FTA construction noise criteria” and listing a variety of mitigation techniques to be used as needed in response to monitoring, including noise barriers, alarms/warning procedures, and mufflers.
As in Protect Our Communities, these mitigation measures describe “adaptive management” plans that would provide “flexibility in responding to environmental impacts through a regime of continued monitoring and inspection.” 825 F.3d at 582; see also City of Sausalito v. O’Neill, 386 F.3d 1186, 1210-11 (9th Cir. 2004) (finding “hard look” requirement satisfied where FEIS included detailed analysis of traffic concerns and specifically provided “for ongoing traffic monitoring and a ‘Traffic Management Plan’ to set ‘specifications on construction traffic scheduling, proposed haul routes, construction parking, staging area management, visitor safety, detour routes, and speed controls’ ”).
C. Supplemental EIS for Nighttime Construction
According to Bonaventure, Appel-lees were required to prepare a supplemental EIS because Metro applied for noise ordinance variances to accommodate nighttime construction on Lower Flower after the issuance of the FEIS. The district court found that no supplemental EIS was required. We affirm.
A supplemental EIS is required if (a) the “agency makes substantial changes in the' proposed action that are relevant to' environmental concerns;” or (b) there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c). A supplemental EIS is not required if “(1) the new alternative is a ‘minor variation of one of1 the alternatives discussed in the draft EIS,’ and (2) the new alternative is ‘qualitatively within the spectrum of alternatives that were discussed in the draft [EIS].’ ” Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1045 (9th Cir. 2011) (quoting published guidance from Council for Environmental Quality publications). Like EIS compliance, an agency’s decision on whether to supplement is controlled by the “arbitrary and capricious” standard. See Marsh, 490 U.S. at 375-76, 109 S.Ct. 1851.
Section 41.40 of the Los Angeles Municipal Code prohibits any construction during certain nighttime hours without a permit. On April 16, 2012, Metro applied to the Board of Police Commissioners for nighttime noise variance “to accommodate the construction of necessary utility reloca-tions” along Lower Flower and in several other Project areas. Metro requested permission to work from 9:00 pm to 7:00 am, Monday through Friday, and 6:00 pm to 7:00 am, Saturday through Monday. Id, The application indicated that work would start on June 1, 2012 and take approximately 1.5 years. “Understanding that the variance could not be granted for that length of time,” Metro requested a six-month permit, indicating that it would request periodic extensions. Metro listed several activities as within the scope of work, such as surveying and traffic control, sawcutting, trenching and shoring, infrastructure installation, backfilling,' and paving. Bonaventure argues this application is a substantial change .because decking and pouring concrete are the only nighttime activities discussed in the FEIS — not sawcutting, trenching, shoring, or infrastructure installation. Bonaventure also argues that FEIS only contemplated nighttime construction over short, limited period, while the requested permits would allow for 24/7 construction over 1.5 years.
• The Lower Flower variance application does not imply new plans for nighttime construction. The FEIS and DEIS already indicated that utility relocations might require “complex construction sequences and schedules,” lasting up to four months on each two-block segment, but that “[sjtreet closures would generally be limited to nighttime, weekend, and/or off peak closures and must be authorized by the .local jurisdiction.” The FEIS notes that the Municipal Code prohibits nighttime construction without a variance and states, that the contractor would “be responsible for consistency with the goals of the applicable local ordinance as it applies to all equipment to the job or related to the job.” These statements are consistent with the application for. a variance for nighttime construction associated with utility relocation that Metro submitted for Lower Flower. Furthermore, the four variance applications in the administrative record all list the same construction activities for the same time period, which suggests that Metro was seeking blanket authorization for utility relocation activities — not that utility relocation would go on continuously for 1.5" years in any one particular area.
Moreover, the FEIS already accounts for the noise and light impacts of possible nighttime construction: “This analysis considered both daytime and nighttime construction activities using the procedures and criteria for a general noise assessment presented in Chapter 12 of the FTA guidance manual (ÜSDOT 2006).” Noise measurements were obtained at the Wes-tin Bonaventure — including 24-hour noise measurements. And mitigation techniques, such as “[hjigher performance mufflers” for nighttime construction “near sensitive land uses” were discussed. The FEIS indicated that “nighttime lighting would predominantly consist of security fighting, and fight would be directed on-site,” and therefore would not cause “adverse or significant” impacts. Even if the variance application were to constitute a substantial change in the Project, no Supplemental EIS would be required because the change would not affect the environment “to a significant extent not already considered.” Marsh, 490 U.S. at 374, 109 S.Ct. 1851; see, also Russell Country Sportsmen, 668 F.3d at 1049 (finding no supplementation required because there was “very little reason to. believe the modified travel plan will have environmental impacts that the agency has not already considered”).
V. CONCLUSION
For the reasons set forth above, the district court’s grant of summary judgment in favor of Appellees on all claims is AFFIRMED.
IT IS SO ORDERED.
. The Appellees are: the Federal Transit Administration ("FTA”); Peter Rogoff, the Administrator of the FTA; Leslie Rogers, the Regional Administrator of the Region DC Office of the FTA; the U.S. Department of Transportation; Ray LaHood, the Secretary of the U.S. Department of Transportation; and the Los Angeles Metropolitan Transportation Authority ("Metro”),
. In total, the DEIS discusses five alternatives: (i) the required "No Build Alternative”; (ii) rapid bus lines between the stations (the "Transportation System Management Alternative”); (iii) the "At-Grade Emphasis Alternative”; (iv) the "Underground Emphasis Alternative”; (v) and the "Fully Underground Alternative.”
. The district found that the FSEIS adequately. addressed the open-face tunneling altorna-tives on Lower Flower and dissolved the injunction on February 5, 2016.
. VdB is a measure of vibration in decibels. dBA is a measure of noise in decibels. •
. "Category 3” land uses include "quiet office or institutional buildings,” while "Category 2” land uses include residential buildings.
. The MMRP also proposes additional mitigation measures labeled GT-3 through GT-6.
. The plaintiffs in California Coastal Commission sued under the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq., not NEPA. Id. at 1086.
. Japanese Village cited Crenshaw in its June 20, 2016 Letter of Supplemental Authorities.
. Japanese Village claims that Metro declined to adopt a proposed mitigation measure, TR-1, which would provide valet service to people denied access to Japanese Village’s parking structure, among other things. As explained in the section above on noise and vibration mitigation measures, Metro actually did adopt mitigation measure TR-1, but this measure was inadvertently left out of the FEIS and ROD. The December 2015 FSEIS corrects this oversight.'
. Moreover, we note that Appellees included analysis of Closed-Face TBM at a deep alignment along Lower Flower in the December 2015 FSEIS. Even if Bonaventure’s claim had merit, this analysis would likely render Bonaventure’s claim moot.
. Bonaventure does not argue — and likely could not establish — that Appellees’ post-FEIS resolution to extend the use of Closed-Face TBM on Flower Street (budget permitting) constitutes a "substantial change” requiring a supplemental EIS under 40 C.F.R. § 1502.9(c). Bonaventure only challenges the sufficiency of the analysis in the FEIS.
. Neither party submitted or cited. Section 4.15.4,1 of the DEIS.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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OPINION OP THE COURT
ADAMS, Circuit Judge.
On December 23, 1977, the United States Nuclear Regulatory Commission (NRC) suspended for approximately two years its decisionmaking process regarding proposals for the recycling of spent nuclear fuel and the use in nuclear reactors of plutonium recovered from that fuel. This suspension was announced in an order terminating informal rulemaking and related licensing proceedings concerning this subject. In part, the decision to place a moratorium upon these deliberations was taken in deference to President Carter’s stated objective of deferring domestic plutonium recycling while the United States initiated a multinational evaluation of alternative fuel cycles that would pose a lesser risk of international proliferation of nuclear weapons. Petitions for review were filed requesting us to set aside and enjoin the NRC’s order on the grounds that, in terminating these proceedings, the NRC violated the Atomic Energy Act (AEA) and the National Environmental Policy Act (NEPA). Because we conclude that the NRC acted within the scope of its authority and that there is no requirement to have a NEPA statement at this time, the petitions for review will be denied.
I.
For over two decades, the federal government, initially through the Atomic Energy Commission (AEC) and later through the NRC, a successor agency to the AEC, has been exploring, together with the private sector, the feasibility of reprocessing spent nuclear fuel and employing the plutonium recovered from such fuel in nuclear reactors utilized to generate electricity. Commercial implementation of the plutonium recycling process would have the advantages of conserving uranium resources and of alleviating the problem of disposing of radioactive wastes, but might also pose the dangers of a proliferation of nuclear weapons and the possible sabotage of reprocessing facilities. This is so because, unlike the slightly “enriched” uranium currently used in nuclear reactors, plutonium can be employed in the production of nuclear explosives and might be diverted to that end by foreign governments or by terrorists.
Recognizing that a decision to implement a wide-scale program for the commercial recycling of plutonium constitutes a major federal action significantly affecting the environment, and thereby necessitating an environmental impact statement (EIS) in order to comply with § 102(2)(C) of NEPA, the AEC in 1974 commenced work on a Generic Environmental Statement on the Use of Recycle Plutonium in Mixed Oxide Fuel in Light Water Cooled Reactors (GES-MO). Concomitant with the GESMO informal rulemaking proceeding, the Commission (this term will be used to include both the AEC and the NRC) conducted adjudicatory licensing proceedings on applications by private companies dealing with the construction and operation of nuclear fuel reprocessing plants, some of which were already pending when GESMO was undertaken. Among the applications before the Commission were those of Allied-General Nuclear Services (Allied-General) for a license to operate the nearly-completed fuel reprocessing plant that it had permission to construct at Barnwell, South Carolina, and of Westinghouse Electric Corp. (Westinghouse) for a license to construct a similar plant at Anderson, South Carolina.
One of the concerns expressed while the rulemaking and adjudicatory proceedings were progressing was that dangers to world security might ensue from the commercial reprocessing of nuclear fuel. For example, the AEC staff’s first draft of GESMO, which was published on August 21, 1974, prompted a number of critical comments by the public. These included a letter from the President’s Council on Environmental Quality that was directed at GESMO’s failure (a) to address the proliferation dangers, (b) to explore what safeguards were available, and (c) to weigh the possibility of developing alternative sources of energy. In response to this criticism, the staff undertook to reassess its study and to supplement the draft GESMO with an analysis of proliferation risks and safeguards. And, on October 28, 1976, President Ford discussed the risks entailed in plutonium recycling in a statement on nuclear policy. He declared that the nation “should pursue reprocessing and recycling in the future only if they are found to be consistent with our international [non-proliferation] objectives.”
President Carter disclosed his administration’s policy concerning plutonium recycling on April 7, 1977. Noting with alarm the serious proliferation risks of plutonium recycling, the President stated that part of the government’s response would be to “defer indefinitely the commercial reprocessing, and recycling of plutonium produced in the U.S. nuclear power programs,” and to sponsor an international nuclear fuel cycle evaluation (INFCE) program aimed at developing alternative processes with lower proliferation risks.
Almost immediately thereafter, a motion was filed to terminate the GESMO proceeding, and the NRC’s GESMO Hearing Board postponed further hearings. On May 3, 1977, the NRC announced its intention to reassess “the future course and scope of GESMO, the review of recycle-related applications, and the matter of interim licensing,” and invited GESMO participants, the Executive Branch, and other interested persons to submit their views on the subject. President Carter’s position was explained on October 4, 1977, in a letter by Stuart Eizenstat, Assistant to the President for Domestic Affairs and Policy. The NRC then solicited further public comment on the President’s position and on several alternative courses of action.
Thereafter, on December 23, 1977, the NRC issued an order terminating the GES-MO proceeding as well as most proceedings relating to pending or future plutonium-recycle license applications. Among other things, the order also committed the NRC “to re-examine the above matter after the completion of the ongoing alternative fuel cycle studies, now expected to take about two years,” and to publish shortly after the decision a statement of the reasons underlying the decision. That statement, in the form of a Memorandum of Decision, was issued on May 8, 1978.
Petitioners sought judicial review within the prescribed period of sixty days following entry of the December 23 Order. Westinghouse filed petitions in this Court, which were assigned docket numbers 78-1188 and 78-1189, challenging the termination of both GESMO and the licensing proceedings with respect to its Anderson, South Carolina facility. Four days later, Allied-General (together with Allied Chemical Nuclear Products, Inc., and General Atomic Company) filed a similar petition in the United States Court of Appeals for the district of Columbia objecting to the cessation of GES-MO and licensing proceedings concerning its Barnwell plant. On the same day, Scientists and Engineers for Secure Energy, Mid-Atlantic Legal Foundation, and Capital Legal Foundation (Scientists), filed a petition in this Court, which was assigned docket number 78-1204, seeking review only of the NRC’s termination of GESMO.
Concerned that the December 23 Order might not be deemed final, the parties also took several protective actions after the May 8, 1978, Memorandum of Decision was issued. First, Allied-General petitioned the District of Columbia Court of Appeals for review. Subsequently, Westinghouse and Scientists filed new petitions for relief before this Court, docketed respectively as numbers 78-1895, 78-1894 and 78-1892. Allied-General’s petitions are before us following their transfer from the Court of Appeals of the District of Columbia, and have been assigned docket numbers 78-1993 and 78-1994.
To complete the dramatis personae of the immediate controversy, the National Resources Defense Council, Inc. (NRDC) and the States of New York, Texas and Wisconsin have intervened in support of the NRC’s decision, while a group of twenty electric utility companies led by Baltimore Electric and Gas Company have filed an amicus curiae brief urging that the order of the NRC be vacated and remanded for further consideration.
II. CHOICE OF FORUM
NRDC has moved to dismiss for want of jurisdiction those petitions that seek review of the December 23 Order, primarily on the ground that that order is not a reviewable “final order.” At oral argument it was conceded that granting NRDC’s motion would not affect the entitlement of any party to secure judicial review of the NRC’s decision to terminate the GESMO and related licensing proceedings. This is so because every party that sought review of the December 23 Order also filed a timely petition from the May 8 Memorandum, either in this Court or in the Court of Appeals for the District of Columbia, and if it were determined that the December 23 Order is not “final,” the May 8 Memorandum would perforce constitute such a “final order.” Consequently, no matter which pronouncement is the “final order,” this Court has jurisdiction to review the NRC’s action.
Apparently, then, what NRDC hopes to achieve by its motions is to have this controversy transferred to the Court of Appeals for the District of Columbia pursuant to 28 U.S.C. § 2112(a). That section specifies which court is the proper forum for review of an administrative decision when petitions are filed in more than one court of appeals. It states in pertinent part:
If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency . shall file the record in thát one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed. For the convenience of the parties in the interest of justice such court may thereafter transfer all the proceedings with respect to such order to any other court of appeals.
Presumably, NRDC believes that if it is concluded that the December 23 Order is not the NRC’s “final order” and that therefore we are not the court “in which a proceeding with respect to such order was first instituted,” we must necessarily transfer all the petitions to the District of Columbia Circuit, which would then decide whether to adjudicate the controversy or perhaps transfer it again to another forum.
Section 2112(a), however, is not jurisdictional in nature, but rather, is a somewhat unusual venue statute. It directs that when petitions from “the same order” are filed in different circuits, thereby vesting each of them with jurisdiction, the choice of the appropriate forum for review of that order is to be made by the court in which a petition was filed first. Although it is presumed that that court will retain jurisdiction, it remains free to transfer the controversy' elsewhere, “[f]or the convenience of the parties in the interest of justice.” The purpose of § 2112(a) is “to provide a mechanical rule easy of application to avoid confusion and duplication by the courts.” By eliminating the earlier practice whereby the agency selected the forum from among the courts in which petitions had been filed, and by requiring the transfer of all petitions to one court,
“[t]his provision contemplates judicial review of particular agency action by the same court. The parties are spared simultaneous participation in proceedings in more than one circuit, and forum shopping is discouraged.
Although this salutary provision does not by its terms provide a solution for every conceivable situation in which review of the same administrative action is sought in more than one circuit, courts have freely relied on its underlying principles to fashion appropriate approaches to related problems and “[t]o prevent unseemly conflicts that could result should sister circuits each take the initiative and issue conflicting decisions” as to where venue lies. Essentially,
[o]ur main concern in handling cases such as this, is that one of the circuits involved take the initiative and decide the threshold question of proper forum rather than delay consideration of the merits due to an overabundance of procedural caution
Accordingly, courts have held that even when the validity of the filing of the first petition is in dispute, all the petitions should be transferred to the court in which the disputed petition was filed, and that court should proceed to determine the order in which valid petitions for review were filed. Furthermore, when the race to the courthouse results in a virtual “dead heat,” various circuits have adopted the practice of consulting with one another and deferring to one court among them to ascertain, after weighing the interest of justice, which tribunal should be the forum for the decision on the merits. The District of Columbia Circuit, which has taken the lead in resolving these procedural problems, has explained its practical approach in the context of a situation where there were virtually simultaneous filings:
In view of the lack of first-filing in any one circuit, Section 2112(a) cannot be implemented through the mechanics set forth in its first sentence quoted above. Instead, we look to the ultimate provision of § 2112(a), which authorizes transfer of the proceedings to another circuit “[f]or the convenience of the parties in the interest of justice.” Judicial review in the forum determined by that standard is a stated congressional goal, and our obligation is- to honor the legislative will as expressed in the statute as a whole.
Also in keeping with the purposes of the statute, courts have interpreted the term, “the same order,” so as to insure the consolidation in one court of petitions from sequential orders arising from the same administrative background and cumulative record.
In the present case, the Court of Appeals for the District of Columbia transferred Allied-General’s petitions to this Court notwithstanding the fact that it was not clear whether this Court is the one “in which a proceeding with respect to such order was first instituted.” In granting the NRC’s motion that the petitions be transferred, the District of Columbia Court reasoned in a per curiam opinion that,
[sjince the petitions for review filed in the Third Circuit were filed first, considering the time of filing alone, it seems to us that the (sic) court should decide whether the action of the Commission of December 23 or that of May 8 was its final order in these proceedings. See Abourezk v. FPC, 168 U.S.App.D.C. 246, 513 F.2d 504 (1975)
The District of Columbia Court thus did not base its transfer on the express terms of § 2112(a), but on a judicially-created practice, tailored to meet the statute’s goal of fixing a mechanical rule for determining which court should apply the “interest of justice” standard to choose the forum in which judicial review will take place. Regardless of which court technically had priority under § 2112(a) to choose the appropriate forum for disposition on the merits, our sister court in the District of Columbia graciously ceded to us any right it may have to select that forum so that the possibility of an “unseemly conflict” not arise as to which of the NRC’s actions was its “final order.” Under different circumstances we probably would reach that threshold issue of finality since it is generally expected that the parties will have a fair race to the courthouse. In this case, however, we deem it appropriate to retain jurisdiction over these petitions without ultimately deciding which action of the NRC constituted its “final order.” We arrive at this conelusion on the basis of our application to the present controversy of the policies that are to be considered in choosing a forum when multiple petitions áre filed for review of agency rulings.
It would do little to further the purposes of § 2112(a) were we now to decide that the May 8 Memorandum was the NRC’s “final order” and therefore transfer all the petitions to the District of Columbia Circuit in order that it may choose a forum. Only if Allied-General, which was the first to file a petition after the May 8 Memorandum (and which filed it in the District of Columbia Court), insisted that the winner of the race to the courthouse be ascertained would it possibly be in the interest of justice to determine the finality question. But in the District of Columbia Circuit, Allied-General did not oppose the NRC’s motion to transfer, and subsequently it expressed its willingness to have this Court adjudicate the validity of the NRC’s action. Allied-General is primarily interested in having the matter resolved expeditiously, which certainly would not occur were we now to transfer the petitions back to the District of Columbia. This is so because a motions panel of this Court had at an earlier date referred NRDC’s motion to dismiss to a merits panel, and the consolidated cases have already been briefed and argued on the merits.
At oral argument, even counsel for NRDC conceded that the more practical, efficient, and just alternative would be for us to reach the merits. Nonetheless, NRDC did not withdraw its motio.n because it regarded the matter to be a jurisdictional defect that this Court could remedy only if it transferred the cases to the District of Columbia Circuit, which would then presumably retransfer the cases to us for disposition on the merits. We have already concluded that NRDC’s motion does not raise a jurisdictional deficiency because pe-. titions for review from both the December 23 Order and the May 8 Memorandum were timely filed in this Court. There thus being no reason to go through the process of transferring petitions back and forth between two circuits, while the parties as well as the public anxiously await resolution of this important controversy, NRDC’s motion will be denied, and we shall proceed to address the merits.
III. CHALLENGES BASED ON THE ATOMIC ENERGY ACT
A. The Reasons for the NRC Decision
As explained by the NRC in considerable detail in its May 8 Memorandum of Decision, the December 23 Order terminating GESMO and related licensing proceedings was prompted by the President’s policy initiatives as well as by the pendency of studies into alternative fuel cycles. With respect to the first reason for termination, the NRC noted in its Memorandum that although the proceedings in question concern domestic activities, it is appropriate for the NRC to weigh the foreign policy implications as well, because the AEA requires that the common defense and security be considered in making any domestic licensing decision. “[I]n the absence of a clear statutory mandate to the contrary” and in view of Congress’ reception of the Administration’s nuclear policy, the NRC deemed it proper to accord “substantial deference” to the President’s request that it terminate the proceedings, since “the President is the national spokesman in the area of foreign policy.” In addition, the NRC examined the President’s request and reasoned that indeed the country’s international prerogatives would be compromised were the proceedings to continue.
The second reason given for termination at this time is the pendency of two alternative fuel cycle studies — INFCE, which is expected to take at least two years, and an interagency Non-Proliferation Alternative System Assessment Program (NASAP) under the coordination of the Department of Energy, which is being undertaken to develop a technical basis for the United States’ contributions to INFCE. The NRC concluded that because the results of these studies are anticipated in the near term, and because the NRC must consider the information and alternatives developed therein before reaching a decision on the pending applications or on GESMO, it would be a waste of effort to continue the pending proceedings and then to supplement or completely revise the record to reflect those results.
The NRC carefully examined policy-based arguments tendered by various commentors that the proceedings ought to be continued, but was not persuaded by them. It emphasized that its decision to terminate the GESMO and related licensing proceedings “does not involve their final disposition on the merits,” and is taken because “the present state of studies and national fuel cycle policy evaluations precludes an informed decision on the merits of plutonium recycle at this time.” Finally, the NRC noted that the President and Congress have indicated that they may reassess their positions after the studies are completed, and that the NRC is committed to reexamine its December 23 decision “in light of the completed studies, expected to take about two years, and any revisions of the Administration’s policies.”
Essentially, then, the NRC has imposed a moratorium, expected to last about two years, upon its decisionmaking process regarding plutonium recycling, and, as a result, has terminated the pending GESMO and related licensing proceedings. In the agency’s view, it had “the discretion to stop processing applications and to refuse to accept new ones when there are sound regulatory reasons to do so.” We shall assess the validity of the NRC’s assertion by examining first, whether the imposition of a moratorium contravenes the legislative scheme, and second, whether the NRC abused its discretion, abridged procedural requirements, or acted arbitrarily, capriciously, or otherwise not in accordance with the law when it issued the December 23 Order.
B. The NRC’s Authority to Place a Moratorium Upon a Decisionmaking Process Conducted Pursuant to the AEA and thereby to Terminate Rulemaking and Licensing Proceedings
In passing the Atomic Energy Act of 1954, Congress enacted “a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives.” This legislation declares it to be the policy of the United States that the development, use, and control of atomic energy be conducted in such a way as “to promote world peace” and “to make the maximum contribution to the general welfare, subject at all times to the paramount objective of making the maximum contribution to the common defense and security.” The AEA is designed to effectuate this policy by providing for a wide range of programs. Among the programs specified in § 3, and particularly relevant to the present case, are:
(c) a program for Government control of the possession, use, and production of atomic energy and special nuclear material, whether owned by the Government or others, so directed as to ... . provide continued assurance of the Government’s ability to enter into and enforce agreements with nations or groups of nations for the control of special nuclear materials and atomic weapons; . [and]
(e) a program of international cooperation to promote the common defense and security . . . ,
To further these statutory objectives, § 161(p) of the AEA confers upon the NRC an unfettered mandate to issue “such rules and regulations as may be necessary to carry out the purposes of this Act.” With slightly greater specificity, and relevant for the GESMO' rulemaking proceeding, § 161(b) authorizes the Commission to
establish by rule, regulation, or order, such standards and instructions to govern the possession and use of special nuclear material, source material, and byproduct material as the Commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property . . . .
A third provision, § 103, directs that commercial licenses, such as those for which applications have been made in the present case, shall be issued “subject to such conditions as the Commission may by rule or regulation establish to effectuate the purposes and provisions of this chapter.” Section 103 admonishes, however, that “no license may be issued . . if,y in the opinion of the Commission, the issuánce of a license to such person would be inimical to the common defense and security or to the health and safety of the public.”
Given this broad delegation of authority to the NRC to choose the necessary means by which to implement the general policy objectives of the AEA, we cannot say that the NRC must inexorably proceed with the processing of license applications and the development of a final GESMO when in its judgment to do so would endanger the attainment of its statutory objectives. Indeed, it would appear to be fully congruent with the broad delegation of authority in the AEA, which allows the NRC to determine the conditions, rules and regulations pursuant to which licenses shall be issued as well as the scope and format of licensing proceedings, to construe that statute’s provisions as granting the NRC the authority to refuse to conduct a licensing proceeding for a reasonable period of time in furtherance of its statutorily delineated responsibilities.
Our conclusion that, an agency that is invested with such extensive powers to effectuate its far-reaching mandate may impose a moratorium upon its decisionmaking process when sound regulatory reasons exist for doing so is, we believe, consonant with the Supreme Court’s approach in Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). There, the question was whether the Federal Power Commission (FPC) had authority to impose a two and one-half year moratorium upon filings of rate schedules while it implemented a new regional ratemaking scheme. The Court noted that it “has repeatedly held that the width of administrative authority must be measured in part by the purposes for which it was conferred . .” Citing § 16 of the Natural Gas Act, which is similar in breadth to § 161(p) of the AEA, the Court continued, “[s]urely the Commission’s broad responsibilities therefore demand a generous construction of its statutory authority.” After rejecting arguments for a narrow construction of the FPC’s authority that were based on a number of statutory provisions, the Court concluded that a moratorium may be imposed. It stated that, “[w]e are, in the absence of compelling evidence that such was Congress’ intention, unwilling to prohibit administrative action imperative for the achievement of an agency’s ultimate purposes.”
Nothing brought to our attention by petitioners regarding the AEA or its history has convinced us that the NRC has less discretion to impose a moratorium in appropriate circumstances than does the FPC, or that the NRC has failed to comply with any procedural requirements in deferring consideration of wide-scale plutonium recycling. We agree with petitioners that under § 103, once an applicant complies with the provisions of the AEA and Commission rules and regulations, the NRC must issue a license unless it determines that “the issuance of a license to such person would be inimical to the common defense and security or to the health and safety of the public.” But we do not believe that a finding of inimicality or noncompliance with the applicable requirements has to be made before the NRC may suspend license application proceedings. This would appear to be particularly true where a moratorium is declared to- enable the Commission to make a reasoned decision regarding the rules and regulations that should be applied and whether the issuance of licenses would be inimical to the common defense and security-
Nor are we persuaded by petitioners’ contention that in suspending the license application proceedings the NRC violated § 189(a) of the AEA, which requires that a public hearing be afforded in any license proceeding “upon the request of any person whose interest may be affected by the proceeding.” As we understand it, that provision is similar to one governing FCC licensing procedures. It guarantees a hearing to all interested parties sometime before the NRC decides whether to grant or deny a license application, it does not mandate that the proceedings in which the ultimate disposition of such an application is being considered continue without any interruption or that a hearing be held before the NRC orders that a moratorium be placed upon its decisionmaking process.
C. The NRC’s Exercise of its Discretion to Impose a Moratorium Upon its Decisionmaking Process and to Terminate GESMO and Related Licensing Proceedings
Inasmuch as we conclude that the NRC may, in its discretion, delay processing applications and refuse to accept new ones when there are sound reasons for doing so, we must now examine whether in the present case this discretion was abused or was exercised in a manner not in conformity with Statutory dictates. Petitioners raise four grounds upon which the NRC’s decision may be faulted.
m First, petitioners suggest that under the due process clause they should have been afforded an adjudicatory-type hearing before the NRC issued the December 23 Order. However, cases upholding the imposition of temporary “freezes” upon the processing of license applications by the FCC indicate that applicants need not be afforded such a hearing before an agency suspends the processing of license applications. Here, the NRC twice gave notice and solicited comments from all affected parties pri- or to releasing its December 23 Order. In the absence of any other statutory or regulatory prescriptions, it is not for the courts to impose additional procedural requirements on the agency.
Next, petitioners assert that in fact the NRC did not place a moratorium upon its decisionmaking process regarding plutonium recycling but really terminated it forever and thus effectively denied the license applications, subject only to the possibility of future reconsideration. In support of this interpretation of the NRC decision, petitioners point out that despite Commissioner Kennedy’s objections, the NRC decided to “terminate,” rather than to “defer” the GESMO and related licensing proceedings. The NRC, it is further noted, did not guarantee that it would reopen the proceedings in two years, and has conceded in its Memorandum that “it is not possible to determine whether our proceedings will then be reinstituted or whether some other course will be adopted.”
This contention fails to distinguish between the GESMO and related licensing proceedings, on the one hand, and the ultimate issues of whether to grant the licenses and whether to commit the United States to plutonium recycling programs on the other hand. The December 23 decision terminated the GESMO and related licensing proceedings because in the judgment of the NRC the ultimate issues could not be resolved on their merits within the next two years. At the same time, the NRC committed itself to reexamine this decision in light of future developments, and to determine at a later date what course of action should then be taken on the license applications and the overall question of wide-spread plutonium recycling. Presumably, whatever course the NRC does adopt in the future will lead to a final determination whether or not to issue the requested licenses. In view of the flexibility that the NRC has in fixing the scope and format of its proceedings, as well as the real possibility that the GESMO and licensing proceedings as originally scheduled will be an inappropriate vehicle for arriving at a decision on the ultimate issues, we cannot say that the NRC abused its discretion in “terminating” rather than “deferring” the present proceedings and in refusing to bind itself to a future plan. Furthermore, as we understand it, such a decision may properly be regarded as a statutorily permitted moratorium on the decisionmaking process regarding the ultimate issues, which are still before the agency. Finally, under the circumstances, the expected two-year duration of this moratorium cannot be deemed unreasonable.
Of course, the NRC may not completely terminate license application proceedings without passing on the merits of the applications, simply by declaring an open-ended moratorium. It is required by statute to fix the conditions and regulations pursuant to which licenses will be granted, and to award such licenses if the prerequisites are met, unless it makes a finding of inimicality to the common defense and security or to the public health and safety. But we are satisfied, at least for now, that the NRC has not abused its discretion in refusing to continue the pending proceedings on the ground that it cannot yet formulate a generic standard or make a determination on the question of inimicality. When and if it ever becomes apparent that the NRC has de facto denied the license applications despite the applicants’ compliance with the pertinent regulations and without making a finding of inimicality, or that the moratorium is of unreasonable duration, judicial recourse will be available to the aggrieved parties.
Petitioners also maintain that the NRC impermissibly terminated the GESMO and related licensing proceedings at the request of the President and in deference to his foreign policy pronouncement. They charge that in failing to act independently of the Executive Branch, the NRC contravened Congress’ express intent that the Commission be completely free from presidential influence and control. According to petitioners, the fact that the President has primary responsibility over foreign affairs does not justify the NRC’s derogation from Congress’ plan, since foreign affairs powers are vested in Congress as well. And, petitioners assert, Congress exercised its share of those powers by legislating that with respect to nuclear energy, which inevitably touches upon the sensitive area of foreign affairs, a strict separation is to prevail between the President and the Commission. This is particularly so, petitioners declare, in the context of domestic licensing. In contrast, in the area of international arrangements, such as export licensing, Congress has legislated a divergence from this scheme by making Commission decisions subject to approval by the President.
Although petitioners’ argument is resonant with constitutional subtleties concerning the “twilight zone” in which congressional and presidential powers overlap, neither the authority reposed in the NRC nor the agency’s exercise of that authority in this case require us to venture into that largely unchartered area. The legislative history produced by petitioners makes clear that Congress intended that the Commission be independent not only from pressures brought to bear by the President, but from all external pressures. Representative is the view expressed by Senator Magnuson:
Actually, the AEC was established by Congress with the hope and aim of making it the most sensitive agency of Government, more independent than any other, and to be protected from Congress itself, and from all other interference, including Executive interference.
Independence, however, does not mean that the Commission must ignore or reject positions espoused by the President, by Congress or by other parties. The Commission was “charged with a most sensitive and most vital responsibility,” a responsibility that cannot possibly be performed properly if the Commission is oblivious or nonresponsive to actions being taken by others, whether within or outside the government. When it created independent administrative agencies, Congress undoubtedly desired that they interact with the three branches of the government much as the legislative body interacts with the executive branch, with “separateness but interdependence, autonomy but reciprocity,” so that “practice will integrate the dispersed powers into a workable government.”
As previously set forth, the NRC is directed in many provisions of the AEA to consider “the common defense and security.” Any contemplation of these sensitive matters necessarily touches upon areas that are also within the domain of the President and of Congress. It was therefore appropriate for the NRC to take note of the relevant developments in the executive and legislative branches and to ascertain, with the help of interested parties, what bearing these developments may have on its own agenda. As we understand the NRC’s actions here, that is all it did, and it maintained its independence from both those branches while making an informed decision to suspend its proceedings.
There is no evidence that the President improperly interfered with the NRC’s decisionmaking process, or that the NRC capitulated to the President. Instead, the agency appears to have examined the President’s position, and agreed with the President’s contention that continuation of the proceedings would adversely affect the President’s nonproliferation efforts. Then, after determining that Congress had not exercised its constitutional powers in this area in a contrary manner, neither through the AEA nor through subsequent legislation, the NRC decided that it would be prudent to terminate the proceedings for a time so that the President might pursue his objectives. Given this record, we cannot say that the NRC abused its discretion or acted arbitrarily, capriciously, or not in accordance with the law when it rested its decision in part on a desire not to obstruct the goal of securing international nonproliferation.
As a final ground for attacking the NRC’s exercise of its discretion in the present case, petitioners contend that the NRC impermissibly relied upon the INFCE and NASAP studies in deciding to terminate GESMO and the related licensing proceedings. This is so, they argue, because assertions about these studies are made in the Memorandum without support in the record, in violation of 5 U.S.C. § 556(e), and also because the studies are not being undertaken by the NRC and are beyond its control. Petitioners would have us confine an agency’s discretion to prescribe a moratorium upon its decisionmaking process while the results of relevant studies are awaited, to those situations where the agency itself is conducting the investigation, as occurred in the Permian Basin Rate Cases and the FCC “freeze” cases. But to place such a limitation upon the NRC’s discretion to impose a moratorium would appear to serve no regulatory purpose. If the NRC may freeze pending proceedings when in its judgment it cannot make a reasoned decision until the results of ongoing studies are completed and available for evaluation, it should make no difference whether the studies are being prepared by the NRC or by other parties. As for the particular studies involved, they were identified and mentioned throughout the proceedings leading up to the December 23 Order, and the NRC did not violate 5 U.S.C. § 556(e) in relying on them as a partial basis for its decision.
IV. CHALLENGES BASED ON THE NATIONAL ENVIRONMENTAL POLICY ACT
Aside from attacking the NRC’s decision of December 23 on the ground that it violated the AEA, petitioners charge that the NRC was required under § 102(2)(C) of NEPA to prepare an environmental impact statement (EIS) before deciding not to proceed with wide-scale plutonium recycle and to terminate the GESMO and related licensing proceedings, since that decision constituted a major federal action significantly affecting the quality of the human environment. For an appreciation of the scope of § 102(2)(C), petitioners refer us to Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973), where the court stated:
The statutory phrase “actions significantly affecting the quality of the environment” is intentionally broad, reflecting the Act’s attempt to promote an across-the-board adjustment in federal agency decision making so as to make the quality of the environment a concern of every federal agency. The legislative history of the Act indicates that the term “actions” refers not only to construction of particular facilities, but includes “project proposals, proposals for new legislation, regulations, policy statements, or expansion or revision of ongoing programs ”
Petitioners also cite National Helium Corp. v. Morton, 455 F.2d 650 (10 Cir. 1971), for the proposition that it makes no difference for purposes of NEPA whether the decision is to terminate rather than to institute a program. And, petitioners point out, it is well settled that a post hoc rationalization will not satisfy NEPA’s procedural mandate.
Turning to the December 23 Order, petitioners insist that inasmuch as any decision whether or not to authorize wide-scale plutonium recycle goes to the heart of the substantive policy of § 101(b)(6) of NEPA (namely, that the recycling of depletable resources be maximized), compliance with the procedural requirement that the NRC prepare an EIS is particularly important. Petitioners point out that the NRC itself has on many occasions recognized the need to compose an EIS on this subject, and that it undertook to prepare GESMO to fulfill that statutory obligation. Inasmuch as any decision on either the wide-scale deployment of plutonium recycling facilities or any of the individual licensing applications would significantly affect the environment, petitioners contend, the NRC was required to complete GESMO prior to any decision not to authorize plutonium recycling. Further, petitioners assert that the December 23 Order was a decision not to authorize wide-scale plutonium recycling because it brought to a halt all progress toward the implementation of this new technology after significant prior federal involvement, and denied the applicants any means of pursuing their license applications.
It is already apparent from our analysis of petitioners’ challenges under the AEA that we view the December 23 Order suspending the decisionmaking process and terminating GESMO and related licensing proceedings in a different light. Contrary to petitioners’ contentions, we have already concluded that the NRC has not yet decided against authorizing wide-scale plutonium recycling and to deny the license applications. Rather, it has ordered a cessation, for a period expected to last approximately two years, of its decisionmaking process on these issues. We believe it evident that the NRC was not required to prepare an EIS before taking this step, for a number of reasons:
The December 23 Order must be seen in the context of the entire course of events contemplated by the NRC. After it received a number of applications for licensing of plutonium recycling facilities, the NRC realized that it was faced with policy choices that would have a significant impact on the environment, and that it was therefore necessary to prepare an EIS before making any decision whether to authorize the wide-scale reprocessing of spent fuel or to grant the requested licenses. GESMO was to be that EIS, and was to be completed prior' to any decision so that it could introduce into the NRC’s decision-making process input on relevant environmental issues, as mandated by NEPA. What the December 23 Order did was to suspend the decisionmaking process, including the preparation of an EIS, without taking any position on the ultimate issues for which an EIS is required. This action in no way violates NEPA. As the Supreme Court declared in Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), “[T]he procedural duty imposed upon agencies by [§ 102(2)(c)] is quite precise, and the role of the courts in enforcing that duty is similarly precise.” An EIS is not required, the Supreme Court continued, when an agency is “merely contemplating] . [a proposal or] at any other point prior to the formal recommendation or report on a proposal,” because “[c]ontemplation of a project and the accompanying study thereof do not necessarily result in a proposal for major federal actions.” Moreover, the Court counseled that it is not the role of the judiciary to “determine a point during the germination process of a potential proposal at which an impact statement should be prepared.” There is nothing in the record to suggest that the NRC will not undertake to complete an EIS as part of its decisionmaking process on whether or not to authorize the wide-scale recycling of plutonium and whether or not to grant the requested licenses. The specific time when that EIS is to be prepared, however, is for the NRC to determine.
It is also important to note that petitioners’ argument in this respect would produce a completely illogical result. As just mentioned, GESMO itself was to be an EIS. The December 23 Order, which terminated the GESMO proceedings, was based in part on the NRC’s judgment that it could not make an informed decision — as it is required to do under NEPA —on the environmental impact of reprocessing spent fuel because studies are still in progress on the feasibility of employing alternative fuel sources. Not only would the adoption of petitioners’ position necessitate the preparation of an EIS — the statutorily-compelled procedure for ensuring informed decision-making on matters affecting the environment — despite this lack of information, it would also require the preparation of an EIS before an agency may delay preparation of an EIS. Such a result could not have been intended by Congress when it enacted NEPA.
V. CONCLUSION
A pressing problem in this last quarter of the twentieth century is a dwindling supply of energy resources coincident with a rising demand for that supply. Increased reliance has been placed on nuclear fuel as one of the more promising sources of energy, at least for the next few years. Nuclear energy, however, presents problems of its own. As recent events have demonstrated, radiation danger to the general population cannot always be contained. Moreover, there exists the risk that nuclear materials and knowledge will be used for nonpeaceful purposes.
Far-reaching policy choices must inevitably be made regarding energy resources, development, conservation and consumption. Indeed, the directions selected may well determine the future character of our society. In a democracy, though, these choices must be made by the political branches of government, not by the courts.
Congress has delegated authority in the delicate area of nuclear energy to a number of agencies, among them the NRC. The NRC is charged with the responsibility of protecting the common defense and security as well as the public health and safety, while overseeing the licensing of nuclear facilities. Some of the decisions it makes to further its statutory mandate may be unpopular in the nuclear industry, among environmentalists, or with other groups of citizens. But Congress has decreed that the agency be independent from outside control, and it would subvert this design were we to invalidate the challenged NRC action when it appears to be consonant with statutory dictates and not an unreasonable exercise of its discretion.
Accordingly, the petitions for review will be denied.
. 42 U.S.C. §§ 2011-2296 (1976).
. 42 U.S.C. §§ 4321-4347 (1976).
. The AEC was dissolved by the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-5891 (1976), and its licensing and related regulatory functions were transferred to the newly-created NRC. See 42 U.S.C. § 5841(f) (1976). Other functions were taken over by the Energy Research and Development Administration and other federal departments.
. The government began encouraging research and development in this field in 1957, and since then has spent approximately $100 million on the project. In 1960, Nuclear Fuel Services, Inc. began construction of a reprocessing plant at West Valley, New York, which operated commercially between 1966 and 1971. Allied-General Nuclear Services started construction of a reprocessing plant at Barnwell, South Carolina, in 1971, pursuant to a permit granted by the AEC. Also, three commercial light water-cooled nuclear power reactors have been authorized to operate with mixed oxide, or recycled, fuel.
The importance of the technology involved in this research, as well as the problems created, can be appreciated with a rudimentary understanding of the nuclear fuel cycle. Currently, the vast majority of nuclear power plants in this country, which now generate about 12 percent of the nation’s electricity, are fueled by slightly “enriched” uranium dioxide fuel. As it enters a reactor, the uranium in the fuel consists of about 3 percent uranium-235 and 97 percent uranium-238. A controlled nuclear chain reaction is then initiated, causing uranium-235 atoms to fission into lighter atoms and releasing heat that generates steam to drive the plant’s electric generators. The chain reaction also transmutes some uranium-238 atoms into plutonium, and some of the plutonium also fissions. The fission products tend to impede the chain reaction, and before the uranium and plutonium are entirely expended, the spent fuel must be removed from the reactor and replaced with fresh fuel. The spent fuel, however, contains elements of uranium and plutonium which, if separated from the waste, reprocessed, and fabricated into new, mixed oxide nuclear fuel, would constitute a significant new source of energy. Besides alleviating the problem of safely disposing of radioactive waste, the recycling of plutonium would help conserve the world’s limited uranium resources. For these reasons, the Commission and private industry have been exploring the commercial feasibility of constructing and operating the facilities necessary to implement this conversion process. However, the recycling of plutonium also presents a danger. As part of that process, plutonium must be isolated from the radioactive waste before being recombined into mixed oxide fuel. This plutonium may be used to produce nuclear weapons, and consequently it is feared that the widespread development of plutonium recycling facilities in this country and abroad may lead to nuclear proliferation as foreign governments and subversive groups divert plutonium to non-peaceful uses. The plutonium recycling operation is described in greater detail in National Resources Defense Council v. United States Nuclear Regulatory Commission (NRDC v. NRC), 539 F.2d 824, 830-832 (2d Cir. 1976), vacated and remanded to determine mootness sub nom., Allied-General Nuclear Services v. NRDC, 434 U.S. 1030, 98 S.Ct. 759, 54 L.Ed.2d 777 (1978); Mixed Oxide Fuel, 40 Fed.Reg. 53056 (1975).
. See note 4 supra.
. 42 U.S.C. § 4332(2)(C) (1976).
. The decision to compile GESMO was announced on February 12, 1974, and published in 39 Fed.Reg. 5356 (1974).
. See 39 Fed.Reg. 30186 (1974).
. See NRDC v. NRC, supra, 539 F.2d at 832-33.
. In November, 1975, after an earlier announcement and the receipt of comments, the NRC published a policy statement declaring that a study of safeguard alternatives would be included in GESMO and weighed in NRC’s final decision on the subject of wide-scale commercial recycling of plutonium. That statement also specified the procedures and schedule to be followed for GESMO hearings and set forth criteria under which interim licensing of non-experimental, recycle-related activities would be considered. See 40 Fed.Reg. 53056 (1975), corrected, 40 Fed.Reg. 59497 (1975). Various environmental groups sought review of this policy statement in the Court of Appeals for the Second Circuit. That court affirmed the NRC’s hearing procedures but held that the interim licensing of recycle-related activities on a commercial basis violated NEPA. The Supreme Court vacated and remanded that judgment for consideration of mootness after the NRC’s order of December 23, 1977. See NRDC v. NRC, supra.
. Statement by the President on Nuclear Power Policy, reprinted in 12 Weekly Comp, of Pres. Doc. 1624, lé26 (1976).
. Statement by the President on Nuclear Power Policy, reprinted in 13 Weekly Comp, of Pres. Doc. 502, 503 (1977). It was also announced that “(t)he plant at Barnwell, South Carolina, will receive neither federal encouragement nor funding for its completion as a reprocessing facility.” Id. The Administration’s policy was subsequently discussed at length by Dr. Nye, Deputy to the Undersecretary of State, in Nonproliferation: A Long-Term Strategy, 56 Foreign Affairs 601 (April, 1978).
. On April 12, 1977, the Hearing Board ordered that hearings be postponed until further notice. That same day, the Public Interest Research Group (PIRG) submitted a motion to terminate GESMO, upon which the NRC staff deferred action pending receipt of guidance from the Hearing Board or the NRC. See App. 44a-47a. On May 3, 1977, the NRC directed, the Hearing Board to certify the PIRG motion to the NRC. See 42 Fed.Reg. 22964 (1977).
. See 42 Fed.Reg. 22964 (1977).
. Mr. Eizenstat’s letter stated in pertinent part:
The President believes that our goal of stopping the spread of nuclear weapons capability among non-weapons states can be significantly improved by a halt in purex reprocessing. Last April 7, he stated that the U.S. should “defer indefinitely the commercial reprocessing and recycling of the plutonium produced in U.S. nuclear power programs”. The Administration has proposed an accelerated research and development program to examine alternative fuel cycles not involving direct access to plutonium. The President has also asked other countries to join us in an International Nuclear Fuel Cycle Evaluation to examine alternative approaches to advanced nuclear technologies. The GESMO proceedings and related licensing requests may impact these non-proliferation initiatives. While the studies and analyses done by the Commission staff, if available in published form, may be of value to the International Nuclear Fuel Cycle Evaluation, the President believes that his non-proliferation initiatives would be assisted both domestically and internationally if the Commission were to terminate the GESMO proceedings. Specifically, the President believes that the following actions would be helpful in achieving the Administration’s goals:
* Publication of the Commission’s assessment of safeguards issues.
* Termination of staff reviews and hearings relating to recycle activities. (Continuation of these activities could lead other nations to question the United States commitment to deter commercial reprocessing and plutonium recycle.)
* Denial of interim licensing of fuel cycle facilities.
* Denial of interim licensing for use of mixed oxide fuel in reactors, except in small quantities for experimental purposes.
The letter is reprinted at 42 Fed.Reg. 57186 (1977).
. See 42 Fed.Reg. 57185 (1977). The notice described four possible courses of action: (1) terminating GESMO and denying the related license applications; (2) continuing as before; (3) taking an intermediate course of action, such as deferring further consideration of GES-MO and the related proceedings pending completion of ongoing national and international studies; or (4) continuing GESMO to some convenient stopping point, such as completion of the health, safety, and environmental hearings.
. See 42 Fed.Reg. 65334 (1977).
. See 43 Fed.Reg. 20575 (1978).
. See 28 U.S.C. § 2344 (1976).
. See note 33 and accompanying text. infra.
. Our jurisdiction under 28 U.S.C. § 2342 and 42 U.S.C. § 2239 “to enjoin, set aside, suspend (in whole or in part), or to determine the validity of’ the NRC’s termination of the GESMO and related licensing proceedings is limited to “final orders” of the Commission. NRDC contends that the December 23 Order is not a “final order” within the meaning of 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342(4) because the administrative process was not consummated until the reasons for the NRC’s proposed action were published, in the May 8 Memorandum. In addition, NRDC argues (1) that there was no “entry” of a final order within the meaning of 28 U.S.C. § 2344 until May 8, 1978, when the NRC issued its Memorandum of Decision, and (2) that the December 23 pronouncement was not an “order” within the meaning of 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342 inasmuch as it omitted a statement of reasons, as required by the Administrative Procedure Act (APA), see 5 U.S.C. §§ 553(c) and 557(c), and the NRC regulations, see 10 C.F.R. §§ 2.760(1), 2.770, 2.806. This argument is predicated on the erroneous premise that the provisions governing review of administrative orders adopt the same definition of the term, “order,” as is found in the APA, as well as the requirement that an explanation accompany the order. See Writers Guild of America, West, Inc. v. FCC, 423 F.Supp. 1064, 1079 (C.D.Cal.1976).
. Moreover, in this Court, a “premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party.” Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (emphasis in original).
. See American Public Gas Ass’n v. FPC, 180 U.S.App.D.C. 380, 555 F.2d 852 (1976); NLRB v. Bayside Enterprises, Inc., 514 F.2d 475 (1st Cir. 1975); Eastern Air Lines, Inc. v. CAB, 122 U.S.App.D.C. 375, 354 F.2d 507 (1965). See generally 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure § 3944 (1977) (hereinafter Wright & Miller).
. See Public Service Commission for the State of New York v. FPC, 153 U.S.App.D.C. 195, 472 F.2d 1270 (1972); Wright & Miller, supra note 23, at 339.
. NLRB v. Bayside Enterprises, Inc., supra, 514 F.2d at 476.
. American Civil Liberties Union v. FCC, 158 U.S.App.D.C. 344, 346, 486 F.2d 411, 413 (1973). See Wright & Miller, supra note 23, at 332.
. See Abourezk v. FPC, 168 U.S.App.D.C. 246, 247, 513 F.2d 504, 505 (1975) (statement of Bazelon, C. J., on denial of petition for rehearing en banc).
. Id
. See, e. g., id.
. See, e. g., United Steelworkers of America v. Marshall, 592 F.2d 693 (3d Cir. 1979); American Public Gas Ass’n, supra.
. American Public Gas Ass’n, supra, 180 U.S. App.D.C. at 385, 555 F.2d at 857.
. See, e. g., BASF Wyandotte Corp. v. Costle, 582 F.2d 108 (1st Cir. 1978). See also Wright & Miller, supra note 23, at 332-34.
. Allied-General Nuclear Services v. NRC, Nos. 78-1144 & 78-1422, typed opinion at 3 (D.C.Cir. July 26, 1978) (per curiam).
. See Abourezk, supra, 168 U.S.App.D.C. at 247, 513 F.2d at 505.
. We note, however, that it is at least fairly plausible to conclude that the December 23 Order was the NRC’s “final order,” because that pronouncement contains essential attributes of finality. See Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970) (judicial review possible when it “will not disrupt the orderly process of adjudication”); Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948) (administrative orders are reviewable when “they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process”); Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 297, 211 F.2d 51, 55, cert. denied, 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124 (1954) (“a final order need not necessarily be the very last order in an agency proceeding," so long as it meets the conditions of finality); Wright & Miller, supra note 23, at 315-16. Cf. Baltimore & Ohio R. Co. v. United States, 201 F.2d 795 (3d Cir. 1953) (this Court entertained petition for review, but vacated and remanded order to agency so that it may develop a record capable of review). Indeed, in contrast to the December 23 decision, the May 8 Memorandum had no practical consequence. On the other hand, there is something to be said in favor of the position that when the agency promises to provide in a short time a statement of reasons, its order is not “final” until the statement is published, particularly since the practice of separating the order and its underlying reasons has received judicial sanction, see Baltimore & Ohio Chicago Terminal Railroad Co. v. United States, 583 F.2d 678, 688 (3d Cir. 1978). That way, parties will not feel compelled to file unnecessary “protective” orders out of uncertainty, see Outland v. CAB, 109 U.S.App.D.C. 90, 93-94, 284 F.2d 224, 227-28 (1960), and those parties that delayed in filing petitions for review in reliance upon the agency’s promise to issue a statement of reasons in due course will not be penalized for so relying.
. This is demonstrated by Allied-General’s Response to NRDC’s motion to dismiss its petition for review of the December 23 Order, filed in docket number 78-1993 in the District of Columbia Court. There, Allied-General stated, on pages 2-3:
From our standpoint the jurisdictional issue is not a point of consequence; we filed the two successive Petitions for Review precisely to avoid the jurisdictional question which the Commission’s method of proceeding had given rise to. We hope the jurisdictional matter is decided promptly by this Court, along with the Commission’s Motion to Transfer, so that all parties soon will know in what circuit the judicial review is to be had. We also hope that the jurisdictional issue will not give rise to conflicting decisions in different circuits that might introduce further complications unrelated to the merits.
. 43 Fed.Reg. at 20576-78. As examples of provisions referring to the common defense and security as an element to be considered in domestic licensing decisions, the memorandum cited §§ 53(b), 57(c)(2), 103(b)(3), (d), 104(d), 161(b), (i)(2) and 182(a) of the AEA.
. Congress explicitly supported the alternative fuel cycle studies proposed by the President in § 105 of the Nuclear Non-Proliferation Act of 1978, Pub.L.No.95-242, 92 Stat. 120, which was pending in the Senate at the time of the December 23 decision (having already passed the House of Representatives) and was enacted before the May 8 Memorandum was released. Section 105 states:
The President shall take immediate initiatives to invite all nuclear supplier and recipient nations to reevaluate all aspects of the nuclear fuel cycle, with emphasis on alternatives to an economy based on the separation of pure plutonium or the presence of high enriched uranium, methods to deal with spent fuel storage, and methods to improve the safeguards for existing nuclear technology.
22 U.S.C. § 3224 (Supp.1979). In addition, Congress endorsed the non-proliferation goals of the Administration, as well as its efforts to encourage international cooperation, in §§ 2 and 3 of that Act, 22 U.S.C. §§ 3201-02. See 43 Fed.Reg. at 20577-78, where the Memorandum also acknowledges that individual members of Congress have expressed opposition to the President’s April 7 policy statement.
. See 43 Fed.Reg. at 20577.
. The NRC recognized that the United States’ initiatives to discourage other nations from reprocessing spent fuel would be undermined if at the same time it continued to pursue domestic commercial reprocessing, since American arguments that the marginal economic benefits are outweighed by the grave security dangers would lose their credibility. See id.
. 43 Fed.Reg. at 20578.
. See 43 Fed.Reg. at 20579. The NRC dismissed the argument that the proceedings ought to be continued in order that a much-needed energy source may timely be developed. It did so on the grounds that the overriding risk of proliferation justifies some delay, that a two-year delay to deal with this risk outweighs the economic costs entailed, and that in any event significant progress probably could not be made in the proceedings while the other studies were still underway. As to the contention that the resources already invested in the proceedings would be wasted if they were terminated, the NRC responded that if the proceedings were ultimately resumed, appropriate portions of the record could be reintroduced, and that it would be even less productive to continue the proceedings and then to be required to revise the record in a substantial fashion. Finally, the NRC rejected suggestions that the GESMO proceedings be continued to develop information for purposes of comparison to other fuel cycles on the ground that it is not within its province to perform general energy studies. In addition to treating these policy-based arguments, the NRC Memorandum also dealt with contentions that it is legally required to continue the proceedings.
. See 43 Fed.Reg. at 20578-79.
. See id. The Memorandum continued: “At the present time it is not possible to determine whether our proceedings will then be reinstituted or whether some other course will be adopted.”
. 43 Fed.Reg. at 20579.
. The scope of our review, which is delimited in 5 U.S.C. § 706(2) (1976), is narrow. We may overturn the NRC’s decision if it violates any constitutional or statutory provisions, but may not otherwise substitute our judgment for that of the agency or set aside its decision unless it is unreasonable. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-15, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
. Siegel v. AEC, 130 U.S.App.D.C. 307, 312, 400 F.2d 778, 783 (1968). See also Public Service Co. of New Hampshire v. NRC, 582 F.2d 77, 82 (1st Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978); North Anna Environmental Coalition v. NRC, 174 U.S.App. D.C. 428, 431 432, 533 F.2d 655, 658-59 (1976).
. Section 1 of the AEA, 42 U.S.C. § 2011 (1976).
. 42 U.S.C. § 2013 (1976).
. 42 U.S.C. § 220l(p) (1976).
. 42 U.S.C. § 2201(b) (1976).
. 42 U.S.C. § 2133 (1976).
. 390 U.S. at 776, 88 S.Ct. at 1364.
. 15 U.S.C. § 717o (1976), which provides that the Commission “shall have power to perform any and all acts, and to prescribe such orders, rules and regulations as it may find necessary or appropriate to carry out the provisions of this” Act.
. 390 U.S. at 776, 88 S.Ct. at 1365.
. Id. at 780, 88 S.Ct. at 1367.
. Indeed, as petitioners point out, this reading of § 103 is supported by the section’s legislative history. The Joint Committee on Atomic Energy made it clear that with respect to license applications under § 103, the “Commission is required to issue licenses to all qualified applicants without other discretion on its part.” S.Rep.No.1699, 83d Cong. 2d Sess. 19 (1954), U.S.Code Cong. & Admin.News 1954, pp. 3456, 3475.
. 42 U.S.C. § 2239(a) (1976).
. Section 309 of the Communications Act of 1934, 47 U.S.C. § 309 (1976), which requires that the FCC either summarily grant a license application by finding it to be in the public interest, or conduct a hearing. Despite the language of the statute, courts have uniformly construed it to permit the FCC to impose a temporary, general “freeze” on the filing and processing of applications when such a freeze is properly determined by the FCC to be in the public interest. The courts have reasoned that in such circumstances, “the right to a hearing under the terms of section 309(e) of the Communications Act has not materialized. . There is nothing to warrant a conclusion that hearings called for by section 309 will not be granted when the freeze is lifted, with respect to applications then filed.” Kessler v. FCC, 117 U.S.App.D.C. 130, 141, 326 F.2d 673, 684 (1963). See also Buckeye Cablevision, Inc. v. United States, 438 F.2d 948 (6 Cir. 1971); Wentronics, Inc. v. FCC, 118 U.S.App.D.C. 36, 331 F.2d 782 (1964); Harvey Radio Laboratories, Inc. v. United States, 110 U.S.App.D.C. 81, 289 F.2d 458 (1961); Mesa Microwave, Inc. v. FCC, 105 U.S.App.D.C. 1, 262 F.2d 723 (1958).
. See note 59 supra.
. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).
. Commissioner Kennedy concurred in the December 23 Order, but preferred the use of the term “defer” for “terminate” to describe the NRC’s action. In a concurring statement to the May 8 Memorandum he explained his position;
Deferral of these proceedings would have avoided the unfortunate appearance that the Commission has made a final decision not to act upon license applications which are properly before it. Additionally, deferral would have left the Commission less susceptible to the argument that the Commission is improperly deferring to a Presidential request affecting not only a rulemaking hearing but also specific licenses which are being treated in an adjudicatory context.
43 Fed.Reg. at 20582. Although the majority of the NRC did not specify its reasons for “terminating” rather than “deferring” the pending proceedings, it may be assumed that the majority was swayed by comments from the Executive Branch and the interested parties arguing that anything less than complete termination may lead foreign countries to question the sincerity of United States overtures to deter commercial reprocessing. See, e. g., app. at 76a (PIRG), 110a (NRDC), 172a (New York), 178a (Eizenstat letter).
. 43 Fed. Reg. at 20579.
. See § 103 of the AEA, 42 U.S.C. § 2133 (1976).
. Expressions of congressional intent that the Commission be independent of the Executive Branch may be found throughout the debates surrounding the passage of the AEA, which took place against the backdrop of the Dixon-Yates controversy. That controversy arose when the President attempted to instruct the Commission to enter into a contract with particular utilities for the provision of electricity to certain Commission facilities. On legislative sentiment, see, e. g. 100 Cong.Rec. 9743 (1954) (remarks of Senator Hill); id. at 10297-98 (colloquy of Congressmen Murray and Holifield); id. at 11532 (remarks of Senator Magnuson); id. at 11536 (remarks of Senator Gore). Aside from resting on the legislative history of the AEA, petitioners insist that Congress made its intent evident in the provisions of the AEA by narrowing the circumstances under which the AEA may decline to grant a license. This argument, which focuses on § 103, is treated in section III. B. supra. Petitioners also rely on two cases involving presidential removal of commissioners of independent agencies, Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958); Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). These cases are factually distinguishable, and, moreover, their approach has been questioned in the light of more recent Supreme Court decisions. See Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451, 475-85 (1979).
. See, e. g. 42 U.S.C.A. §§ 2077(b), 2153(b), & 2155 (1976 & 1979 Pocket Part).
. See Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J„ concurring).
. 100 Cong.Rec. 11532 (1954).
. 100 Cong.Rec. 9743 (1954) (Senator Hill).
. Youngstown, supra, 343 U.S. at 635, 72 S.Ct. at 870.
. See, e. g., Youngstown, supra; Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918); United States v. American Telephone & Telegraph Co., 185 U.S.App.D.C. 254, 260-261, 567 F.2d 121, 127-28 (1977). See generally, L. Henkin, Foreign Affairs and the Constitution (1972); Comment, United States v. AT & T: Judicially Supervised Negotiation and Political Questions. 77 Colum.L.Rev. 466, 473-76 (1977).
. Section 556(e) provides:
The transcript, of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title and, on payment of lawfully prescribed costs, shall be made available to the parties. When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.
. 42 U.S.C. § 4332(2)(C) (1976).
. 156 U.S.App.D.C. at 404, 481 F.2d at 1088 (footnotes omitted).
. See, e. g„ Cady v. Morton, 527 F.2d 786, 794 (9th Cir. 1975).
. 42 U.S.C. § 4331(b)(6) (1976).
. See Shiffler v. Schiesinger, 548 F.2d 96, 100-101 (3d Cir. 1977) (preparation of EIS is part of decisionmaking structure through which substantive objectives of NEPA may be realized).
. See, e. g., Final GESMO-I, vol. 1, Summary at i (NRC, 1976); Draft GESMO, vol. 2 at 1-2 (AEC, 1974); 39 Fed.Reg. at 5356 (1974). That an EIS was required before a decision could be reached on plutonium recycling was confirmed in NRDC v. NRC supra.
. See text accompany notes 6-7 supra.
. 427 U.S. at 406, 96 S.Ct. at 2728.
. Id at 406, 96 S.Ct. at 2728.
. Id. (emphasis in original). In a later footnote, the Court elaborated:
[Section 102(2)(C)] contemplates a consideration of environmental factors by agencies during the evolution of a report or recommendation on a proposal. But the time at which a court enters the process is when the report or recommendation on the proposal is made, and someone protests either the absence or the adequacy of the final impact statement. This is the point at which an agency’s action has reached sufficient maturity to assure that judicial intervention will not hazard unnecessary disruption.
Id. at n.15, 96 S.Ct. at 2728.
. Because of our disposition of petitioners’ contentions, and our holding that as a matter of law no EIS is required at this stage of the administrative process, we need not decide at this time the standard of review this Court might apply when it reviews an agency determination that a proposed action had only an insignificant impact on the environment and that accordingly an EIS is unnecessary. See NAACP v. Medical Center, Inc., 584 F.2d 619, 635 n.19 (3d Cir. 1978); Shiffler v. Schlesinger, supra, 548 F.2d at 104-05 n.5.
. See 42 U.S.C. § 4332 (1976).
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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EDITH H. JONES, Circuit Judge:
This case arises from the efforts of the United States Coast Guard to compel James and Janell Needham (“Needhams”) to reimburse the United States, under the Oil Pollution Act (“OPA”), 33 U.S.C. §§ 2701-2720 (2000), for cleanup costs associated with an oil spill. The bankruptcy court, in the first instance, and the district court on appeal, held that the Needhams were not liable to the United States for the cleanup costs because the waters in question were not navigable, and were therefore beyond the reach of the OPA. However, for the reasons stated below, we disagree and therefore reverse and remand.
I. BACKGROUND
On or about January 25, 1999, the Louisiana Department of Environment Quality (“LDEQ”) received a complaint of an oil spill in LaFourche Parish, Louisiana. The spill occurred at a facility known as the Thibodeaux Well when Tommy Jones, a pumper/gauger employed by Needham Resources, Inc. (“NRI”), pumped oil from a containment basin into an adjacent drainage ditch. The well is co-owned by NRI and D&C Operating, Inc. (“D&C”). James Needham (“Needham”) is the sole owner of NRI.
The EPA investigated the spill and contacted James Needham to discuss the matter. Initially, NRI hired a private contractor to perform the necessary cleanup, but lacked the resources to complete the operation. The EPA and the Coast Guard then assumed responsibility for the cleanup effort funded by the Oil Spill Liability Act. Their efforts cost roughly $207,000.
On February 8, 1998, the Needhams filed a Chapter 11 bankruptcy petition in the Western District of Louisiana. The next day, the United States sued the Needhams, NRI and D&C in federal court to recover its cleanup costs. The civil suit was and remains stayed pending resolution of this bankruptcy court dispute over the government’s proof of claim against the Needhams. D&C also filed a proof of claim, contingent upon a finding of liability under the OPA. The Needhams objected to the EPA’s proof of claim, asserting, inter alia, that the spill did not implicate any navigable waters subject to federal jurisdiction, and was therefore not regulated by the OPA.
At the bankruptcy court hearing on the disputed claim, the United States offered a videotape showing the extent of the oil spill. Patrick Breaux, an environmental coordinator with the LDEQ, narrated the video and offered further testimony concerning the nature and extent of the cleanup. Breaux was the hearing’s only live witness. Moreover, within a litany of documentary evidence, the parties submitted a five-page written stipulation addressing a variety of evidentiary and substantive issues. Importantly, the parties there agreed that the oil, which was originally discharged into the drainage ditch at Thi-bodeaux Well, spilled into Bayou Cutoff, and then into Bayou Folse. Bayou Folse flows directly into the Company Canal, an industrial waterway that eventually flows into the Gulf of Mexico.
After reviewing the evidence, the bankruptcy court found that “neither the drainage ditch nor Bayou Cutoff are navigable waters nor are they sufficiently adjacent to the navigable waters to support an extension of the OPA.” In re Needham, 279 B.R. 515, 519 (Bankr.W.D.La.2001). Thus concluding that the spill was not subject to federal regulation, the bankruptcy court sustained the Needhams’ objection to the United States’ proof of claim. The United States appealed the decision to the district court, which briefly affirmed, finding no basis to disturb the bankruptcy court’s conclusions. See United States v. Needham, 2002 WL 1162790 (W.D.La. January 22, 2002).
II. STANDARD OF REVIEW
We review the factual findings of the trial court for clear error. In re Gerhardt, 348 F.3d 89, 91 (5th Cir.2003). Therefore, whether a waterway is navigable-in-fact is subject to the clearly erroneous standard. See Dardar v. Lafourche Realty Co., Inc., 55 F.3d 1082, 1085 (5th Cir.1995)(citing The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870)). “Under a clear error standard, this court will reverse only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been made.” Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 534 (5th Cir.2003) (citations and quotations omitted). Conversely, the district court’s statutory interpretation is subject to de novo review. United States v. Phipps, 319 F.3d 177, 183 (5th Cir.2003).
III. DISCUSSION
The United States challenges the bankruptcy court’s conclusion that the oil discharged from the Needham facility did not contaminate waters regulated by the federal government under the OPA. It contends that the oil spilled into navigable-in-fact waters, or at a minimum, into waters adjacent to an open body of navigable water. Because we agree with the latter argument, we reverse the bankruptcy court’s decision.
A
The OPA imposes strict liability upon parties that discharge oil into “navigable waters,” a term defined in the statute to mean “the waters of the United States, including the territorial sea.” 33 U.S.C. § 2701(21)(2000). This is eo-extensive with the definition found in the Clean Water Act (“CWA”). See Rice v. Harken Exploration Co., 250 F.3d 264, 267 (5th Cir.2001) (citing 33 U.S.C. § 1362(7)(2000)). Rice establishes that the OPA, like the CWA, does not extend federal regulation to the outermost limits of the Commerce Clause. Id. at 269-70.
Although under both the OPA and the CWA “waters and wetlands need not always actually be navigable-in-fact to be protected,” id. at 268, the Supreme Court recently found the inclusion within “waters of the United States” of certain isolated, non-navigable waters exceeded the Army Corps of Engineers’ regulatory power under the CWA. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (“SWANCC"), 531 U.S. 159, 172-74, 121 S.Ct. 675, 682-84, 148 L.Ed.2d 576 (2001). The Court emphasized that these isolated bodies of water were neither navigable-in-fact nor adjacent to open water. Id. at 168, 121 S.Ct. 675.
SWANCC narrowed, but did not overturn United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), which upheld CWA regulations restricting discharges into a non-navigable wetland adjacent to open waters. Id. at 133, 106 S.Ct. 455. To reach this result, Riverside Bayview Homes interpreted “waters of the United States” broadly to encompass “all wetlands adjacent to other bodies of water over which the Corps has jurisdiction.... ” Thus, Riverside Bayvieiv Homes, unlike SWANCC, involved a wetland “adjacent to an open body of water that was actually navigable.” Rice, 250 F.3d at 268; see also SWANCC, 531 U.S. at 167, 121 S.Ct. 675 (stating that the wetland in Riverside Bayvieiv Homes “actually abutted on a navigable waterway”).
Nevertheless, the United States urges this court to approve its regulatory definition of “navigable waters.” See 40 C.F.R. § 300.5 (2003). This definition includes as “navigable waters” all “tributaries” of navigable-in-fact waters. See id. at § 300.5(d). According to the government, the definition covers all waters, excluding groundwater, that have any hydrological connection with “navigable water.” At least two courts appear to have agreed with this expansive interpretation. See United States v. Deaton, 332 F.3d 698, 702 (4th Cir.2003)(asserting authority, under the CWA, over wetlands that are “adjacent to, and drain into, a roadside ditch whose waters eventually flow into the navigable Wicomico River and Chesapeake Bay”); United States v. Rapanos, 339 F.3d 447, 449 (6th Cir.2003) (asserting authority, under the CWA, over wetlands that flow into a man-made drain, which in turn flows into a creek, which in turn flows into a navigable river).
In our view, this definition is unsustainable under SWANCC. The CWA and the OPA are not so broad as to permit the federal government to impose regulations over “tributaries” that are neither themselves navigable nor truly adjacent to navigable waters. See Rice, 250 F.3d at 269. Consequently, in this circuit the United States may not simply impose regulations over puddles, sewers, roadside ditches and the like; under SWANCC “a body of water is subject to regulation ... if the body of water is actually navigable or adjacent to an open body of navigable water.” Rice, 250 F.3d at 269.
B.
Using this interpretation of the OPA, we next consider the bankruptcy court’s findings of fact. Two finding of fact are critical. First, the court found that the oil spilled only into the drainage ditch adjacent to the Thibodeaux Well and Bayou Cutoff. See In re Needham, 279 B.R. at 516-18. The court ruled that neither the drainage ditch nor Bayou Cutoff were navigable-in-fact. Id. at 518. Second, the court found that the Gulf of Mexico was the only open body of navigable water in the vicinity of the spill. Id. at 518. These findings constitute clear error.
Specifically, it was clear error to disregard the effects of the spill on Bayou Folse and the Company Canal. The parties’ stipulation of facts contained the following language: “On or before January 25, 1995, oil was discharged from the Thi-bodeaux facility into Bayou Cutoff and Bayou Folse near Thibodeaux, LaFourche Parish, Louisiana.” (emphasis added). “Under federal law, stipulations of fact fairly entered into are controlling and conclusive and courts are bound to enforce them, unless manifest injustice would result therefrom or the evidence contrary to the stipulation was substantial.” Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1087 (5th Cir.1996) (citations omitted).
There is no basis to disregard the stipulation, and indeed none has been argued. Not only is the stipulation consistent with the evidence adduced at the hearing, but in his opening statement, counsel for the Needhams acknowledged that the residue from the spill was found 10 to 12 miles from the oil well, ie., in Bayou Folse.
As a result of the stipulation, the court should not have limited its application of the OPA to the spill’s impact on Bayou Cutoff. Under Rice, and in light of the stipulation, the proper inquiry is whether Bayou Folse, the site of the farthest traverse of the spill, is navigable-in-fact or adjacent to an open body of navigable water. See Rice, 250 F.3d at 269. Either basis is sufficient to trigger the OPA.
We conclude, because it is undisputed, that Bayou Folse is adjacent to an open body of navigable water, namely the Company Canal. “[T]he term ‘navigable waters’ is not limited to oceans and other very large bodies of water.” Rice, 250 F.3d at 269. Rather, inland waterways may also fall within the definition of navigable waters. See id. Inland waterways, such as the Company Canal, are navigable-in-fact “when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted.... ” Daniel Ball, 77 U.S. at 563, 77 U.S. 557; see also Appalachian Elec. Power Co., 311 U.S. at 409, 61 S.Ct. 291 (a waterway is navigable if it can be made useful through reasonable improvements); Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 41 S.Ct. 409, 412, 65 L.Ed. 847 (1921) (the use of navigable waters may be limited to travel during seasonal water level fluctuations); but see United States v. Oregon, 295 U.S. 1, 23, 55 S.Ct. 610, 619, 79 L.Ed. 1267 (1935)(waterway is not navigable where commercial use or susceptibility of use is “sporadic and ineffective”).
The Company Canal falls within the definition of navigable waters. At the bankruptcy court hearing, Breaux testified that “[t]he Company Canal is an industrial corridor between the Intracoastal Waterway and Bayou LaFourche.” He also observed that the Company Canal contains “shipyards, repair' facilities, dry docks, [and a] gas freeing operation.” An inland waterway, such as the Company Canal, that supports commerce, is unobstructed, and is traversed on a consistent basis is navigable-in-fact.
Thus, the only remaining question is whether Bayou Folse is adjacent to the Company Canal. Under Rice, the term “adjacent” cannot include every possible source of water that eventually flows into a navigable-in-fact waterway. Rather, adjacency necessarily implicates a “significant nexus” between the water in question and the navigable-in-fact waterway. See SWANCC, 531 U.S. at 167, 121 S.Ct. 675 (finding that Riverside Bayview Homes turned on the “significant nexus” between the wetlands and the “navigable waters”); see also Rice, 250 F.3d at 271 (requiring that the adjacent body of water be “sufficiently linked” to the navigable-in-fact water). Under this standard, Breaux’s testimony and the stipulation prove that Bayou Folse is plainly adjacent to the Company Canal — Bayou Folse flows directly into the canal. On this basis, the Thibodeaux Well oil spill implicated navigable waters and triggered federal regulatory jurisdiction pursuant to the OPA.
IV. CONCLUSION
Under Rice, the OPA permits the recovery of cleanup costs in only two instances: (1) if oil spills into navigable-in-fact waters or (2) if oil spills into non-navigable waters (or wetlands) that are truly adjacent to an open body of navigable water. Here, the parties stipulated that oil spilled into Bayou Folse. Bayou Folse is adjacent to the Company Canal, which is an open body of navigable water. We therefore conclude that the OPA applies to the spill at issue. Consequently, we REVERSE and REMAND this matter for consideration of the Needhams’ remaining defenses.
. D&C owns 90% of the well and NRI, the well operator, owns the remaining 10%.
. The Oil Spill Liability Trust Fund is directly available to the EPA and the Coast Guard to fund federal removal costs. See 33 U.S.C. §§ 2712(a); 1321(s)(2000). Moreover, the Fund is available to pay uncompensated removal costs to third parties. See 33 U.S.C. § 1012(a)(4)(2000).
.The Needhams' bankruptcy petition was later converted to Chapter 7.
. This court's decision in Dardar appears to be in tension with the Supreme Court’s decision in United States v. Appalachian Elec. Power Co., 311 U.S. 377, 403-404, 61 S.Ct. 291, 297-98, 85 L.Ed. 243 (1940), which suggests a mixed question of law and fact standard. The Court stated that "[i]n cases involving the navigability of water courses, this Court, without expressly passing on the finality of the findings, on some occasions has entered into consideration of the facts ... to determine for itself whether the courts have correctly applied to the facts found the proper legal tests.” Id. In the Court’s view, "[b]oth the standards and the ultimate conclusion involve questions of law inseparable from the particular facts to which they are applied.” Id. at 404, 61 S.Ct. 291. Nonetheless, as will be made clear below, the result in this matter is unchanged regardless of the standard of review employed.
. Under the OPA, "each responsible party for a vessel or facility from which oil is discharged ... into or upon the navigable waters or adjoining shorelines ... is liable for the removal costs and damages ... that result from such incident.” 33 U.S.C. § 2702(a)(2000).
. Rice was the first case in this circuit to examine the contours of the OPA, and offers a persuasive analysis of its text and legislative history. 250 F.3d at 267-68.
. As the Court stated in SWANCC: "We said in Riverside Bayview Homes that the word 'navigable' in the statute was of ‘limited effect’ and went on to hold that § 404(a) extended to non[-]navigable wetlands adjacent to open waters. But it is one thing to give a word limited meaning and quite another to give it no effect whatsoever.” 531 U.S. .at 682-83, 121 S.Ct. 1043 (citation omitted).
. In short, the regulatory definition, if applied in this fashion, would push the OPA to the outer limits of the Commerce Clause and raise serious constitutional questions. As noted above, Rice and SWANCC have rejected such an expansive reading of the OPA and CWA respectively. Accordingly, the regulation is not entitled to Chevron deference. SWANCC, 531 U.S. at 172-73, 121 S.Ct. 675 ("Thus, where an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”) (quoting Edward J. De-Bartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)).
. In the end, there must be "a close, direct and proximate link between ... [the] ... discharges of oil and any resulting actual, identifiable oil contamination of natural surface water that satisfies the jurisdictional requirements of the OPA.” Rice, 250 F.3d at 272.
. Additionally, Patrick Breaux testified that the oil was visible in the water "near a point where Highway 90 intersects Bayou Folse.”
. Whether Bayou Folse is navigable-in-fact is a close question, and one we need not resolve here. Bayou Folse’s adjacency to the Company Canal is sufficient to resolve this matter. Moreover, it is unwise for a court to overreach and resolve issues unnecessarily, particularly when, as is the case here, the issue involves navigable waters. See Appalachian Elec. Power Co., 311 U.S. at 408, 61 S.Ct. 291 (concluding that "[w]hen once found to be navigable, a waterway remains so”).
. Neither the CWA nor the OPA define the term "adjacent.” The Army Corps of Engineers defines "adjacent” to mean “bordering, contiguous, or neighboring.” 33 C.F.R. § 328.3. However, this regulation was invalidated, at least in part, in SWANCC. Nevertheless, the Corps’ definition comports with the term's plain meaning. Webster's Third New International Dictionary 26 (1986) offers several definitions: "(a) not distant or far off: nearby but not touching; (b) relatively near and having nothing of the same kind intervening: having a common border: abutting, touching: living nearby or sitting or standing relatively near or close together; and (c) immediately preceding or following with nothing of the same kind intervening.” Hence, both the regulatory and plain meaning of "adjacent” mandate a significant measure of proximity. Therefore, including all "tributaries” as "navigable waters” would negate Rice's adjacency requirement, and extend the OPA beyond the limits set forth in SWANCC.
. On appeal, the parties submitted supplemental briefs addressing the remaining questions under the OPA: (1) whether James Needham was an owner or operator of the facility and (2) whether Needham could establish a third party affirmative defense. See 33 U.S.C. § 2701(32)(2000); 33 U.S.C. § 2702(a)(2000); 33 U.S.C. § 2703(a)(2000). However, we conclude, in our discretion, that the bankruptcy court should address these fact-laden issues in the first instance. See Louisiana World Exposition v. Federal Ins. Co., 858 F.2d 233, 254 (5th Cir.1988).
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PREGERSON, Circuit Judge:
The Carson-Truckee Water Conservancy District and Sierra Pacific Power Company (appellants) sought a declaratory judgment that the Secretary of the Interior (Secretary) violated the Washoe Project Act, 43 U.S.C.A. §§ 614-614d (West 1964), and related reclamation laws in refusing to sell water from the Stampede Dam and Reservoir on the Little Truckee River for municipal and industrial (M & I) use in Reno and Sparks. In addition, Nevada sought a determination that the Secretary was required to obtain a permit from the Nevada State Engineer to operate the Stampede Dam in California. The Pyramid Lake Paiute Tribe of Indians (Tribe) intervened in support of the Secretary. We affirm in part and vacate in part.
T „ , , e, , x • x I- Factual Background and District „ . _ . . Court Decisions
A detailed recitation of the relevant facts may be found in the district court’s two opinions. Carson-Truckee Water Conservancy District v. Watt (Carson-Truckee I), 549 F.Supp. 704 (D.Nev.1982). The Little Truckee River flows Trakee River which then „ ... . . , ,T ■, , . , flows from California into Nevada and into „ ., T , , Pyramid Lake. Stampede Dam is located ,, T..., „ on the Little Truckee m California. The „ , , . Secretary now operates Stampede Dam m a way that conserves two species of fish) the cuj.uj fish and Lahontan cutthroat trout, that are protected under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1543 (i982). See Carson-Truckee I, 537 F.Supp. at 109; Carson-Truckee II, 549 F.Supp. at 710_n. Appellants concede that the Secretary’s obligations under ESA supersede his obligations under the Washoe Project Act and related federal reclamation laws. Carson-Truckee II, 549 F.Supp. at 708. Appellants, however, challenge the extent of the Secretary’s obligations under ESA.
, , The district court bifurcated the issues. In Carson-Truckee I, the district court held that ^ Pontiffs have standing to challen^e the Secretary’s operation of the dam, Pontiffs have a private right of action enforce the Secretary s obligations un^er Washoe Project Act, (3) M & I use is a “beneficial purpose” for which the Secretary is authorized to sell the project’s water under the Washoe Project Act, 43 U.S.C.A. § 614, (4) the Secretary is required to sell water from Stampede Dam not needed to fulfill his trust obligations to the Tribe and his obligations under ESA, and (5) the Secretary does not need a Nevada state water permit for Stampede Dam’s present operation in California.
After deciding Carson-Truckee I, the district court received evidence on the question of how much water was required to fulfill the Secretary’s obligations under ESA and on an alternate plan, submitted by appellants to the Secretary, for operation of the dam. The parties submitted direct evidence in the form of written expert testimony. The parties then were afforded the opportunity to fully cross-examine the experts.
After the hearing, the district court, in Carson-Truckee II, ruled that (1) ESA required the Secretary to give priority to conserving the cui-ui fish and Lahontan cutthroat trout so long as they were endangered and threatened, and (2) the Secretary’s finding that there was no excess water to sell after fulfilling those statutory obligations was supported by substantial evidence and therefore his operation of Stampede Dam was neither arbitrary nor capricious. The court also found that appellants’ proposed alternate plan for the operation of the dam would jeopardize the fish and that the Secretary did not abuse his discretion in rejecting the plan.
II. Analysis
We affirm and adopt all but one of the district court’s holdings for the reasons ably stated by Judge Solomon in his two learned opinions. The one holding we vacate is the court’s ruling in Carson-Truckee I that the Washoe Project Act obligates the Secretary to sell all water from Stampede Dam that remains after he has fulfilled his obligations under ESA and under the Tribe’s reserved water rights. Carson-Truckee I, 537 F.Supp. at 112-13. The following analysis assumes a familiarity with the district court’s opinions.
(a) Obligation to sell water
We agree with the district court’s conclusion that M & I use is a “beneficial purpose” for which the Secretary is authorized to sell the project’s water, Carson-Truckee I, 537 F.Supp. at 112. We do not necessarily agree, however, that the Secretary is obligated to sell the water for M & I purposes simply because those purposes are the only present uses for which the Secretary can obtain some reimbursement for project costs.
Reclamation projects funded by the federal government are generally intended to be reimbursed through the sale of project water. See, e.g., 43 U.S.C. § 485h(a) (1982) (Secretary must submit findings on the amount of costs that will “probably be repaid by water users” before construction expenditures for a given project may be made). The district court held that Congress had anticipated that the Washoe Project would be 86% reimburseable. Carson-Truckee I, 537 F.Supp. at 111. But circumstances have changed. Although Congress in passing the Washoe Project Act intended that irrigation was the Act’s primary purpose, irrigation is no longer a viable use of the project. Appellants are the only entities that seek to distribute the water for reimburseable purposes. Thus, they argue that the Secretary must sell the project’s water to them.
The Washoe Project Act, however, unlike other reclamation project authorizations, did not prohibit the Secretary from constructing the project until repayment contracts for the project had been entered into. Compare San Angelo Project Act § 2(b), 43 U.S.C.A. § 615p(b) (West 1964) (Secretary must enter into contracts for repayment of project costs before constructing project) with Washoe Project Act § 2(bHc), 42 U.S.C.A. § 614a(b)-(c) (Secretary must enter into repayment contracts before delivering water). The Washoe Project Act merely prohibits the Secretary from delivering project water for reimburseable uses without first obtaining a repayment contract. See Washoe Project Act § 2(a), 43 U.S.C.A. § 614a(a) (federal reclamation laws govern Secretary’s construction, operation, and maintenance of Washoe project); 43 U.S.C. § 485h(c) (1982) (section of federal reclamation law governing sale of reclamation project water for M & I use).
Because we affirm the district court’s holding that, under ESA, the Secretary is permitted to use at this time all of the project’s water to conserve the two species of fish, we need not resolve the extent of the Secretary’s obligation to obtain reimbursement for the project in the future. The Secretary’s asserted obligation to sell project water for M & I purposes should be considered when his superseding obligations to the Tribe, see supra note 1, and under ESA have been fulfilled. Accordingly, we vacate the district court’s opinion on this narrow point.
(b) Appellants’ arguments
We feel constrained to elaborate our reasons for rejecting appellants’ arguments against two of the district court’s holdings. Those holdings are that (1) ESA requires the Secretary to give priority to the conservation of threatened and endangered species, and (2) the Secretary did not abuse his discretion both in determining that there was no excess water to sell for M & I purposes after his obligations under ESA were fulfilled, and in rejecting appellants’ alternate plan for operating Stampede Dam. Our comments address specific arguments raised on appeal. We make them only to supplement the district court’s reasoning.
(1) ESA’s requirements.
Appellants urge a reading of ESA that would-lead to a result at odds with the statute’s clearly stated objectives. Appellants contend that the Secretary’s authority is defined solely by ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). Thus, they argue that the Secretary is authorized only to take actions that avoid “jeopardizing” the continued existence of a species. Appellants contend that the Secretary may not do more than that.
In addition to its § 7(a)(2) “jeopardy” provision, however, ESA also directs the Secretary to conserve threatened and endangered species to the extent that they are no longer threatened or endangered. Appellants, relying solely on § 7(a)(2), would have us ignore the other sections of ESA directly applicable here and relied on by the district court. Carson-Truckee II, 549 F.Supp. at 708-10. ESA § 2(b), (c), & § 3(3), 16 U.S.C. § 1531(b), (c), & § 1532(3). ESA § 7(a)(1), moreover, specifically directs that the Secretary “shall” use programs administered by him to further the conservation purposes of ESA. 16 U.S.C. § 1536(a)(1). Those sections, as the district court found, direct that the Secretary actively pursue a species conservation policy. See also Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 2297, 57 L.Ed.2d 117 (1978) (ESA requires the Secretary to give highest priority to the preservation of endangered species; Congress intended to “halt and reverse the trend toward species extinction, whatever the cost.” (emphasis added)).
The purpose of ESA § 7(a)(2) is to ensure that the federal government does not undertake actions, such as building a dam or highway, that incidentally jeopardize the existence of endangered or threatened species. See TV A v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 for an example of § 7(a)(2)’s application. Contrary to appellants’ contention, ESA § 7(a)(2) is inapplicable here because the Secretary has not undertaken a project that threatens an endangered species. Instead, following the mandate of ESA § 7(a)(1), § 2(b), (c), & § 3(3), 16 U.S.C. § 1536(a)(1), § 1531(c), (b), & § 1532(3), the Secretary actively seeks to conserve endangered species. Thus, the district court properly applied ESA § 2(b), (c), & § 3(3) rather than ESA § 7(a)(2) to this case.
Applying the proper code sections to this case, the Secretary’s decision is well-justified. The Washoe Project Act anticipates but does not require the Secretary to sell water to recover project construction costs. See supra pp. 741 F.2d at pp. 260-261. ESA, on the other hand, directs the Secretary to use programs under his control for conservation purposes where threatened or endangered species are involved. Following this directive, the Secretary here decided to conserve the fish and not to sell the project’s water. Given these circumstances, the ESA supports the Secretary’s decision to give priority to the fish until such time as they no longer need ESA’s protection.
(2) Abuse of Discretion
In addition to challenging the extent of the Secretary’s obligations under ESA, appellants presented the Secretary with a proposed alternate plan under which they maintained he could both conserve the fish and sell water for M & I use. The plan included planting miles of shade trees along the river to reduce water temperature, confining the river to a single channel, and constructing fish hatcheries. The district court found that appellants’ proposed alternate plan would jeopardize the fish. He then held that the Secretary had not abused his discretion in rejecting the plan and in determining that he had no excess water to sell for M & I purposes after fulfilling his obligations under ESA. The district court’s holding is based in part upon findings of fact about the spawning requirements of the cui-ui fish and Lahontan cutthroat trout. Carson-Truckee II, 549 F.Supp. at 711.
Appellants raise two objections to the district court’s holding. First, appellants contend that, although a district court’s factual determinations are usually reviewed under a clearly erroneous standard, the nature of the hearing conducted by the district court in this case warrants a less deferential standard of review. Appellants assert that the hearing before the district court was a “paper hearing,” in which the demeanor and credibility of the expert witnesses was not involved. Second, they maintain that the district court was clearly erroneous in any event because its decision, which affirmed the Secretary’s rejection of appellants’ proposed plan, was based on a finding that appellants’ plan would result in a constant river temperature of 68 degrees. The fish cannot reproduce in water that warm.
Neither argument persuades us to reach a different result. Although the district court required that expert testimony be submitted in writing, the experts were cross-examined in the court’s presence. And, even if we were to employ a less deferential standard of review, we nonetheless would affirm the district court on its overall holding that the Secretary did not abuse his discretion.
The 68 degree finding is found in a brief footnote in the district court’s opinion. Carson-Truckee II, 549 F.Supp. at 711 n. 9. The district court’s holding does not stand or fall with that finding. Even assuming that the district court’s 68 degree finding was clearly erroneous, we think the district court’s other findings — for example, that (1) appellants did not meet their burden of showing that the Secretary abused his discretion, (2) it is not feasible to operate Stampede Dam for both M & I and fishery purposes, and (3) appellants’ plan would require the expenditure of huge sums, thereby defeating the purpose of obtaining reimbursement, Carson-Truckee II, 549 F.Supp. at 711-12 — amply support the court’s approval of the Secretary’s ac-' tion.
The judgment is AFFIRMED in part and VACATED in part.
. We do not consider the Secretary’s obligation to provide water to the Tribe for the reasons given by the district court in Carson-Truckee II, 549 F.Supp. at 712-13.
. Section 7(a)(2) states in pertinent part:
Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical____
16 U.S.C. § 1536(a)(2) (1982).
. Section 2(b) states the purposes of ESA:
The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species ____
16 U.S.C. § 1531(b).
Section 2(c) states in pertinent part:
[A]ll Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.
16 U.S.C. § 1531(c).
Section 3(3) defines "conserve”:
The terms "conserve", "conserving”, and "conservation” mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.
16 U.S.C. § 1532(3).
. Section 7(a)(1) states in pertinent part:
The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species 16 U.S.C. § 1536(a)(1).
. Because we hold that the Washoe Project Act does not require the Secretary to sell water for M & I use, we need not reach the question whether, given competing mandatory statutory directives, the Secretary would be required to use the project’s water entirely for conservation purposes under ESA § 2(b), (c), § 3(3), & § 7(a)(1). Similarly, because the Secretary actively seeks to use the project for conservation purposes, we need not consider the extent of his affirmative obligations under ESA § 2(b), (c), § 3(3), & § 7(a)(1) had he decided neither to sell the water nor to protect the fish.
. The court noted that the appellants’ plan would result in a constant river temperature of 68 degrees. Such a temperature renders it too hot for the fish to reproduce successfully. Appellants point out that the evidence introduced before the district court indicated that appellants’ plan — planting miles of shade trees, dredging the channel, and undertaking other measures — would result in occasional, not constant, 68 degree river temperatures. The district court may therefore have erroneously reported appellees’ expert's testimony.
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FLETCHER, Circuit Judge:
Clifton Craft, Jack Ferguson, and William Wilson (“appellants”) appeal the district court’s order affirming the assessment of civil penalties by the National Oceanic and Atmospheric Administration (“NOAA”) for violations of the Marine Protection, Research, and Sanctuaries Act. NOAA assessed the penalties following a four week administrative trial, in which appellants were found to have violated NOAA regulations protecting the seabed and historic resources of the Channel Islands National Marine Sanctuary. We have jurisdiction and we affirm.
I
The Marine Protection, Research, and Sanctuaries Act, 16 U.S.C. §§ 1431-1445a, provides for the establishment of marine sanctuaries to protect important and sensitive marine areas and resources of national significance. Id. § 1431; S.Rep. No. 595, 100th Cong., 2d Sess. 1 (1988), reprinted in, 1988 U.S.C.C.AN. 4387. Pursuant to this law, NOAA designated the Channel Islands National Marine Sanctuary (“CINMS”) in 1980. The Channel Islands National Marine Sanctuary, 45 Fed.Reg. 65,198 (Oct. 2, 1980). The CINMS includes the marine waters surrounding several islands off the coast of California out to a distance of six nautical miles from the islands. 15 C.F.R. § 935.3.
To protect resources within the CINMS, NOAA has promulgated regulations which prohibit activities that might adversely affect sanctuary resources, including hydrocarbon operations, the discharge or deposit of substances, commercial vessel traffic, and the removal or damage of cultural or historical resources. 15 C.F.R. §§ 935.6 & 935.7. Activities that are not specifically prohibited are permitted. 15 C.F.R. § 935.5.
The regulations at issue in this appeal provide, in relevant part:
[T]he following activities are prohibited within the Sanctuary ...
(2) Alteration of, or construction on, the seabed. Except in connection with the laying of any pipeline as allowed by § 935.6, within 2 nautical miles of any Island, no person shall:
(i) Construct any structure other than a navigation aid, or
(ii) Drill through the seabed, or
(iii) Dredge or otherwise alter the seabed in any way, other than
(A) To anchor vessels, or
(B) To bottom trawl from a commercial fishing vessel.
15 C.F.R. § 935.7(a)(2) (emphasis in original and added). The statute authorizes civil penalties for the violation of these regulations; criminal penalties are not authorized. 16 U.S.C. § 1437 (Supp.1994).
Appellants are members of a diving club that took a trip on the boat ‘Vision” to the CINMS in October 1987. The club members participated in dives at four shipwrecks within the CINMS. Two National Park Service rangers were on board the Vision and witnessed violations of CINMS regulations by members of the diving club. Based on the rangers’ testimony and other evidence, NOAA assessed civil penalties against appellants for violations of § 935.7(a)(2) (iii).
Following a four week administrative trial, the ALJ concluded that appellants had violated § 935.7(a)(2)(3ii) and recommended assessment of the penalties sought by NOAA. The ALJ specifically found that appellants removed artifacts from the shipwrecks and “excavated” the seabed with hammers and chisels. The ALJ found that both Craft and Wilson repeatedly hammered at the seabed and that Ferguson admitted that one site looked like a minefield due to the divers’ activities. The.ALJ also found that the alteration to the seabed was sufficiently extensive that the sites could be located days after the divers left the site. NOAA adopted the ALJ’s findings and recommendations.
Appellants subsequently filed an action in district court, challenging NOAA’s authority to impose the civil penalties on the grounds that the regulation in question is unconstitutionally overbroad and vague. The district court rejected these contentions and granted the government’s motion for summary judgment. Appellants timely appealed.
Because appellants raise a legal challenge involving the construction of a federal law and its application to undisputed facts, our review is de novo. United States v. Doremus, 888 F.2d 630, 631 (9th Cir.1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 752, 112 L.Ed.2d 772 (1991).
II
Appellants first argue that the regulation is overbroad. The overbreadth doctrine requires that the enactment reach “a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” United States v. Austin, 902 F.2d 743, 744 (9th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 200, 112 L.Ed.2d 161 (1990) (internal quotations omitted); see also Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Because appellants do not claim that any constitutional or fundamental right is prohibited by the regulation in question, their overbreadth challenge must fail. See Austin, 902 F.2d at 744-45 (no overbreadth challenge under Archaeological Resources Protection Act, which prohibits excavation of archaeological resources on public lands).
III
Appellants also argue that 15 C.F.R. § 935.7(a)(2)(iii) is unconstitutionally vague as applied to their activities. Appellants do not raise a facial challenge.
“To pass constitutional muster against a vagueness attack, a statute must give a person of ordinary intelligence adequate notice of the conduct it proscribes.” United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 829 (9th Cir.1989); see also Austin, 902 F.2d at 745. Thus, a statute’s application might violate the constitutional mandate against vagueness if its terms are not sufficiently clear. 594,464 Pounds of Salmon, 871 F.2d at 829.
We do not apply this standard mechanically, however. Instead, various factors affect our analysis. The degree of vagueness tolerated by the Constitution depends in part on the nature of the enactment: “[a] statute providing for civil sanctions is reviewed for vagueness -with somewhat greater tolerance than one involving criminal penalties” because the consequences of imprecision are less severe. Id. (internal quotations omitted); see also Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193-94; Big Bear Super Market No. 3 v. I.N.S., 913 F.2d 754, 757 (9th Cir.1990). In addition, a scienter requirement may mitigate vagueness. Finally, “perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights,” in which case a more stringent vagueness test applies. Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193-94; Doremus, 888 F.2d at 635.
In light of these principles, we conclude that 15 C.F.R. § 935.7(a)(2)(iii) is not unconstitutionally vague as applied to appellants’ excavation activities. At the outset, we note that the regulation in question provides only for civil — and not criminal — penalties and does not inhibit the exercise of constitutionally protected conduct. Consequently, the Constitution tolerates a greater degree of vagueness in the regulation.
Even more significant, however, is our conclusion that the regulation by its terms clearly prohibits appellants’ activities. With two exceptions, the regulation prohibits “dredg[ing] or otherwise alterfing] the seabed in any way.” 15 C.F.R. § 935.-7(a)(2)(iii) (emphasis added). The word “alter” extends broadly to activities that “modify” the seabed, see Webster’s II New Riverside Universal Dictionary, and the language “in any way” reinforces our understanding that the term “alter” applies to a broad range of conduct. There can be no question but that this language prohibits the excavation activities in which appellants were engaged. E.g., Austin, 902 F.2d at 743-45 (criminal provision that prohibits “excavating], removing], damaging], or otherwise altering] or defacing] any archaeological resource located on public lands or Indian lands” not unconstitutionally vague as applied to excavation of obsidian weapons and tools); Doremus, 888 F.2d at 635-36 (criminal provision that prohibits “[d]amaging any natural feature or other property of the United States” not unconstitutionally vague as applied to chopping down live trees on Forest Service land).
Appellants argue that “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” They suggest that because the term “altering” follows the terms “dredging,” “construction,” and “laying of pipeline,” it must be read to proscribe only major industrial and commercial impacts on the seabed.
This principle of statutory construction is inapplicable, however, because § 935.-7(a)(2)(iii) is not merely a general prohibition preceded by specific illustrative terms. Instead, the regulation includes two specific exceptions to the prohibition on “altering”: (1) alterations that occur when anchoring vessels; and (2) bottom trawling from a commercial fishing vessel. 15 C.F.R. § 935.-7(a)(2)(iii)(A) & (B). Moreover, contrary to appellants’ contentions, the existence of listed exceptions to the prohibition on alterations further suggests that all alterations other than those that are specifically excepted are prohibited.
Appellants also rely on NOAA’s Final Environmental Impact Statement (“FEIS”) to argue that the regulations are unconstitutionally vague. They note that the FEIS discusses § 935.7(a)(2)(iii) only in the context of dredging, an activity that has a major effect on the seabed, and argue that the FEIS, as the only prior agency interpretation of the regulation in question, is entitled to substantial deference under Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Although appellants are correct that the FEIS discusses § 935.7(a)(2)(iii) only in the context of dredging, appellants’ argument is unavailing. As we have previously noted, the regulatory language of § 935.7(a)(2)(iii) broadly prohibits alterations “of any kind.” Even if NOAA did not originally consider whether this regulation would apply to activities such as hammering at the seabed, the regulatory language is sufficiently broad to provide fair warning to the public that such activities are prohibited. See Hoffman Estates, 456 U.S. at 498, 102 S.Ct. at 1193; Doremus, 888 F.2d at 635.
Moreover, the FEIS is not a definitive agency interpretation of the scope of the regulations in question. Instead, an FEIS is intended to be a detailed statement of the significant environmental effects of the regulation. E.g., Sierra Club v. Clark, 774 F.2d 1406, 1411 (9th Cir.1985). Its purpose is to provide the agency with sufficiently detailed information to enable it to decide whether to proceed on a project in light of potential environmental consequences and to inform the public of the potential environmental impacts of the proposed enactment. Id. Because the FEIS is not intended to provide the public with a definitive statement of all activities that might fall within the regulation’s prohibitions, its terms do not limit our construction of the regulation.
As a final matter, there can be no doubt that appellants were aware that their activities were prohibited. The ALJ found that Ferguson announced to the group of divers that the shipwrecks were located in a federal reserve and were protected. At one of the shipwrecks Ferguson announced that removing objects from the site was illegal and that an underwater alarm would alert the group if a National Park Service patrol approached. The ALJ concluded that appellants “set out with their picks, hammers ... and other wreck raiding paraphernalia, fully intending to remove objects from these wrecks in the closed area within the Sanctuary, and that is what they did.” Given these undisputed facts, appellants’ claims that they lacked fair warning that their actions were prohibited ring hollow. See United States v. Ellen, 961 F.2d 462, 467 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 217, 121 L.Ed.2d 155 (1992); United States v. Clinical Leasing Serv., 925 F.2d 120, 123 (5th Cir.), cert. denied, — U.S.-, 112 S.Ct. 188, 116 L.Ed.2d 149 (1991).
IV
We hold that § 935.7(a)(2)(iii) is neither overbroad nor unconstitutionally vague as applied to appellants’ conduct. The order of the district court is AFFIRMED.
. Penalties were also assessed against appellants Ferguson and Wilson pursuant to 15 C.F.R. § 935.7(a)(5), which prohibits any person from "removpng] or damag[ing] any historical or cultural resource." Section 935.7(a)(5) also served as the sole basis for assessing penalties against plaintiff-appellants Michael King, Thomas Stocks, and Donald Jemigan. Appellants do not challenge the constitutionality of § 935.7(a)(5) on appeal to this court.
. Appellants also argued that they have a preexisting right to perform salvage activities in the CINMS and that the regulations impermissibly restrict their rights under admiralty law principles to engage in the underlying activities. These claims were rejected by the district court.
. Appellants’ attempts to characterize their activities as minimally harmful fanning of sediment and manual hammering are misleading. As noted above, the AU found that appellants' hammering and chiseling activities were "excavations” that resulted in identifiable scars on the seabed. These factual findings have not been challenged on appeal.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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TONE, Circuit Judge.
These consolidated cases bring before us an Environmental Protection Agency (EPA) order granting a discharge permit under the Federal Water Pollution Control Act Amendments of 1972 and a related District Court judgment. In No. 76-1616, United States Steel Corporation’s petition for review of EPA’s order granting a National Pollutant Discharge Elimination System (NPDES) permit for the company’s Gary Works pursuant to § 402 of the Act, 33 U.S.C. § 1342, 86 Stat. 880, the company challenges the conditions imposed by the permit. No. 76-1425 is an appeal from a District Court’s dismissal of a complaint which the company filed while the administrative permit proceeding was still in progress, seeking review of the administrative law judge’s refusal to consider certain issues in that proceeding.
I.
The Statute
The cornerstone of the Act’s scheme for cleaning up the nation’s waters is § 301(a)’s prohibition against “the discharge of any pollutant by any person” except as specifically permitted by administrative action taken pursuant to specified sections of the Act. An existing source such as the Gary Works may obtain permission to discharge pollutants by applying for an NPDES permit under § 402. EPA administers the permit program in each state unless and until the state takes over that function, which Indiana did not do in time to process the Gary Works application. A permit, which is issued upon application and after opportunity for a public hearing, states the pollutants and amounts thereof that may be discharged at each of the plant’s outfalls, and imposes conditions upon those discharges. A permit thus transforms “generally applicable effluent limitations and other standards — including those based on water quality — into obligations (including a timetable for compliance) of the individual dis-charger.” EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976).
The Act provides for two kinds of restrictions on the discharge of pollutants. First, federal, technology-based effluent limitations are to be established in two stages, one set to be met by July 1, 1977, and to be based upon “the best practicable control technology currently available” (which we sometimes refer to as “1977 technology” or “BPT”), and the other to be met by July 1, 1983, and to be based on “the best available technology economically achievable.” Section 301(b). Second, the states are allowed to impose more stringent limitations, including water quality standards, treatment standards, or schedules of compliance. Sections 301(b)(1)(C) and 510. See also EPA v. California ex rel. State Water Resources Control Board, supra, 426 U.S. at 219, 96 S.Ct. 2022. Congress thus has chosen not to preempt state regulation when the state has decided to force its industry to create new and more effective pollution-control technology. These state limitations must also be met by July 1, 1977, § 301(b)(1)(C), and, like the federal limitations, are implemented by conditions which are included in NPDES permits.
In reviewing the U.S. Steel permit we are primarily concerned with the 1977 state and federal limitations. Except with respect to a final limitation on blast-furnace discharges, the additional federal limitations that become effective July 1, 1983 are not involved in this proceeding.
II.
The Facts and Prior Proceedings
The Plant
U.S. Steel’s Gary Works occupies 3700 acres on the southern shore of Lake Michigan. An integrated steel mill, Gary Works produces coke, iron, steel, and primary and finished steel shapes. The plant draws water from Lake Michigan and each day discharges up to 775 million gallons of polluted water into the lake and into the Grand Calumet River, which flows into the lake. The discharges are made through five outfalls into the lake and 14 into the river. Each day the 500 million gallons discharged into the river include an average of 180 pounds of phosphorus, 325 pounds of phenol, 3100 pounds of cyanide, 3400 pounds of flourides, 5100 pounds of ammonia, 82,-000 pounds of chlorides, and 180,000 pounds of sulphates. These pollutants eventually flow into lower Lake Michigan.
The EPA Permit Proceeding
U.S. Steel’s initial application for a discharge permit for its Gary Works was made in 1971, before the adoption of the Federal Water Pollution Control Act Amendments of 1972. That application was submitted to the Army Corps of Engineers, which was charged with the responsibility of issuing permits under the Refuse Act. The FWPCA transferred permit authority from the Corps of Engineers to the Administrator of EPA. As provided in § 402(a)(5) of that Act, U.S. Steel’s application was treated as an NPDES permit application.
EPA initially issued a permit for the Gary Works in October 1974, after having published notice of its proposed action. The permit contained effluent limitations, monitoring requirements, and additional conditions, together with a compliance schedule. U.S. Steel did not accept the permit but requested an administrative hearing pursuant to EPA regulations, 40 C.F.R. § 125.36. In its request, the company proposed permit conditions which it contended satisfied the Act, some of which would have allowed it to increase the amount of pollutants in its discharges.
After the hearing and a limited remand ordered by EPA, the Regional Administrator substantially approved the conditions contained in the permit, which had been formulated by the Regional Enforcement Division. U.S. Steel appealed, pursuant to 40 C.F.R. § 125.36(n)(l), to the Administrator, who denied review. The permit was reissued by EPA on June 25, 1976, with a modified compliance schedule. U.S. Steel then filed its petition for review in this court.
The Permit
The permit imposes technology-based limitations governing pH, total suspended solids (TSS), and oil and grease at each individual outfall. These limitations are designed to reflect the level of pollutant discharges remaining despite installation of 1977, or best practicable, technology. Throughout the course of the permit proceeding, the parties have agreed that BPT is currently being used by U.S. Steel at all but one outfall. Therefore, the only dispute as to the technology-based limitations on those outfalls is whether the effluent limits established by EPA properly reflect BPT operations.
The one outfall that the parties do not agree on is the iron-making blast-furnace outfall, # 017, which is U.S. Steel’s major process-water outfall and the largest single source of pollution at the plant. The permit limitations on TSS at that outfall can be met only by installing a blast-furnace recycling system, which EPA asserts, and U.S. Steel denies, is BPT.
Other permit limitations, imposed because they are required by Indiana regulations, govern six chemicals, viz., ammonia, cyanide, phenol, chloride, sulphate, and fluoride. These limitations apply to the plant’s river outfalls as a group and not to individual outfalls. There are also thermal limitations based on state water quality standards.
For all but the blast-furnace outfall, there are only “initial” limitations, which are effective until June 30, 1977, and “final” limitations, which apply from July 1, 1977 until the expiration of the permit on October 31, 1979. The initial limitations govern only pH, TSS, and oil and grease, except that at two outfalls, # 007 and # 017, ammonia, cyanide, and phenol are also covered. The final limitations govern temperature, pH, TSS, and oil and grease for all 19 outfalls and ammonia and other chemicals for the 14 river outfalls, including the blast-furnace outfall. For that outfall the permit also contains an intermediate step, “interim” limitations on total suspended solids, which are effective between July 1, 1977 and June 30, 1979, with the final limitations on TSS becoming effective July 1,1979. Schedules of compliance are established to enforce these deadlines, and U.S. Steel is required to monitor its discharges in order to present proof of its compliance.
The permit also restricts U.S. Steel’s discharges of acid wastes to a deep waste-injection well to their present level. The company is required to monitor these discharges also and to submit data relating to the deep well and the performance of treat-ability studies of the deep-well wastes.
The Action in the District Court
At the EPA administrative hearing, U.S. Steel attempted to challenge the validity and application of (1) the state water quality standards set out in Indiana regulations SPC 4R and SPC 7R-2; and (2) certain NPDES regulations contained in 40 C.F.R. part 125. The administrative law judge determined that he lacked jurisdiction to decide these matters and therefore refused to consider them at the hearing.
U.S. Steel then filed an action in the United States District Court for the Northern District of Illinois, seeking declaratory and injunctive relief with respect to the issues the administrative law judge had declined to hear. Basing jurisdiction on 28 U.S.C. §§ 1331, 2201, 2202 and the Administrative Procedure Act, 5 U.S.C. § 500, et seq., U.S. Steel asked for the following relief:
(1) An order requiring EPA to determine the validity and applicability of Indiana’s water quality standards or, in the alternative, review of those issues by the District Court.
(2) An order requiring EPA to determine the validity of certain “substantive” NPDES regulations or, in the alternative, District Court review of those regulations.
(3) Review by the District Court of certain NPDES regulations pertaining to permit procedures.
U.S. Steel moved for a preliminary injunction to stay the administrative hearing pending the District Court’s decision on the merits. Following denial of the motion, an appeal was taken to this court. An application for stay of the administrative proceeding was denied, and after the administrative hearing was completed the appeal was dismissed as moot.
Thereafter the District Court, on EPA’s motion, dismissed the complaint as failing to state a claim on which relief could be granted. The court explained its decision in an unreported memorandum, pointing out the inappropriateness of judicial interruption of an ongoing administrative process in the absence of irreparable injury or plain deprivation of constitutional right, the availability of judicial review of the administrative process in accordance with a specific statutory provision, and the general policy of avoiding piecemeal judicial review. U.S. Steel appeals from that judgment of dismissal.
III.
Procedural Issues
There are several procedural issues to be considered in each appeal before reaching the validity of the permit conditions.
A. The Petition for Review: No. 76-1616
(1) Applicability of Administrative Procedure Act
The FWPCA requires the Administrator to provide an “opportunity for public hearing” before issuing a permit, § 402(a)(1). The agency has issued regulations providing for public hearings, held at the discretion of the Regional Administrator, 40 C.F.R. § 125.34, and separate adjudicatory hearings, held at the request of “any interested person” if the Regional Administrator approves, 40 C.F.R. § 125.36. Only an adjudicatory hearing was held on the permit now before us.
The FWPCA does not prescribe the procedures to be followed by the agency at these hearings. The parties disagree as to the applicability of the Administrative Procedure Act. EPA has submitted a supplemental brief arguing at length that the adjudication provisions of that Act do not apply and that the only constraint on the agency’s procedure is the due process clause. The argument is that these sections, 5 U.S.C. § 554, and also 5 U.S.C. §§ 556 and 557, both of which are triggered by § 554, apply only to an “adjudication required by statute to be determined on the record after opportunity for agency hearing”; and § 402 of the FWPCA requires only “opportunity for public hearing” and does not contain the words “on the record.”
The absence of the words “on the record” is not conclusive, however. See Phillips Petroleum Co. v. FPC, 475 F.2d 842, 851 (10th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974). Section 509(b)(1) of the FWPCA subjects proceedings under specified sections of the Act to judicial review in a court of appeals. Of the enumerated sections, only § 307, providing for toxic and pretreatment effluent standards, contains the words “on the record.” Section 307(a)(2). The presence of these words in one section and their absence from the others is outweighed, however, by other considerations. It seems improbable that Congress would have contemplated that judicial review of proceedings under all the other sections enumerated in § 509(b)(1) would be conducted without a written record. Also pertinent is the language chosen by Congress in § 509(c) making that subsection applicable to “any judicial proceeding” under § 509(b) in which the determination under review is “required to be made on the record after notice and opportunity for hearing.” This would have been an unusual way of singling out § 307 from all the sections listed in § 509(b). U.S. Steel thus seems to have the better of the argument when it contends that §§ 554, 556, and 557 of the APA are applicable to NPDES permit proceedings.
Sections 556 and 557 are applicable for another reason: § 558(c) of the APA provides, independently of § 554 of that Act, that “[w]hen application is made for a license required by law” the agency shall hold proceedings which shall be “conducted in accordance with sections 556 and 557.” Because this is a license application proceeding, §§ 556 and 557 apply whether or not § 554 does. In addition, § 706(2)(E) of the APA makes the case subject to the “substantial evidence” standard of judicial review.
The agency also argues that Congress must not have intended the APA to apply to NPDES permit proceedings under the FWPCA because the sheer number of those proceedings would make it impossible to observe the adjudicatory hearing requirements of the APA. On their face, §§ 556 and 557 apply to NPDES permit proceedings. We are not free to ignore the statutory words, which Congress has left unaltered, on grounds of expediency. And while the applicability of § 554 may not be as clear, the impossibility argument is not persuasive in any event. EPA has demonstrated in this case that in the relatively small percentage of cases in which applicants for NPDES permits demand hearings, it is not unduly burdensome for the agency to conduct those hearings in compliance with the adjudication provisions of the APA.
(2) Challenges to EPA Procedural Regulations
(a) Burden of Proof
U.S. Steel argues that the EPA regulation which puts the burden of proof on the applicant, 40 C.F.R. § 125.36(i)(l), violates 5 U.S.C. § 556(d), which requires “the proponent of a rule or order” to bear the burden of proof. The short answer to this contention is that U.S. Steel, as the applicant for a permit without which it would be forbidden by law to discharge pollutants, is the proponent. See Appalachian Power Co. v. Train, 545 F.2d 1351,1358 (4th Cir. 1976).
A related argument is that because the parties were required to submit their evidence simultaneously in writing prior to the hearing, U.S. Steel was “unable to properly prepare to respond to the Government’s evidence.” Inasmuch as U.S. Steel properly bore the burden of proof, it seems to us that, if anything, it benefited by this procedure. In any event, § 556(d) expressly provides “for the submission of all or part of the evidence in written form” when an agency is considering an application for an initial license, as it was here, and the company neither showed that it was denied the right to offer evidence in rebuttal nor pointed to any prejudice that it suffered.
(b) Failure To Require Hearing Officer To Make Initial Decision
U.S. Steel attacks the EPA regulation which requires the Regional Administrator rather than the hearing officer to render the initial decision. 40 C.F.R. § 125.-36(7 )(1). This provision is said to violate 5 U.S.C. §§ 554(d) and 557(b). Section 554(d)(A), however, specifically exempts “applications for initial licenses” from the requirement that an agency employee who presides at the hearing make the recommended or initial decision. And § 557(b) states that the hearing officer shall decide the case “unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision.” The challenged regulation is such a general rule and is thus authorized by the statute. Moreover, § 557(b)(1) specifically provides that, in “determining applications for initial licenses,” the agency itself may issue a tentative decision.
(c) Considerations Outside the Record
U.S. Steel asserts that the following EPA regulation violates 5 U.S.C. § 556(e):
“The Administrator shall decide the matters under review on the basis of the record presented and any other consideration he deems relevant.”
Section 556(e) provides that the “transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision . .” While the regulation might have been more artfully worded, we believe it simply permits the Administrator to use his expertise in making decisions. We do not read it as authorizing him to base his decision on evidence outside the record. In any event, the Administrator did not state in this case that he was basing his decision to deny review on any matter outside the record, and we will not presume that he did so. Cf. 40 C.F.R. § 125.36(n)(9)(ii).
(3) Agency Refusal To Consider Validity of Procedural Regulations
U.S. Steel complains that it should have been allowed, at the administrative hearing, to challenge the EPA procedural regulations governing the permit proceeding. EPA responds that the agency was not required to consider these questions, inasmuch as it had already indicated its view of the matter by adopting the regulations. We think U.S. Steel cannot complain, so long as the validity of the regulations is subject to review by this court.
We have already considered and rejected U.S. Steel’s challenges to specific regulations. U.S. Steel also asserts that the regulations in their entirety “are unlawful in that said regulations were improperly promulgated without notice or opportunity for comment. 5 U.S.C. § 553; ‘Notice of Proposed Rulemaking,’ 30 Fed.Reg.No. 7, January 11,1973.” Without more, we are hardly in a position to evaluate this conclusory argument, to which EPA has not responded. Moreover, U.S. Steel’s failure to show that it was prejudiced by the regulations makes further consideration of this argument unnecessary.
(4) Agency Refusal To Consider Validity of Indiana Water Quality Standards
The administrative law judge held that he was without jurisdiction to consider the validity of the Indiana water quality standards upon which certain limitations in the permit were based, a position the Administrator sustained. U.S. Steel contends that Indiana provides no judicial review of the validity of the standards.'and that due process therefore required the Administrator to determine the validity of those standards.
Under § 402(a)(1) of the FWPCA, the Administrator must condition the NPDES permit upon the discharger’s meeting “all applicable requirements under sections 301,” et a1. Section 301(b)(1)(C) requires compliance by July 1, 1977 with
“any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 510)
Section 510 preserves the right of any state to impose limitations more stringent than the federal limitations under the Act. Because the Administrator is required by the Act to include in the permit any more stringent state limitations, including those necessary to meet state water quality standards, and is given no authority to set aside or modify those limitations in a permit proceeding, he correctly ruled that he had no authority to consider challenges to the validity of the state water quality standards in such a proceeding.
The Administrator’s only authority to pass on state water quality standards is conferred by § 303 of the Act, which empowers him to determine whether the standard “meets” or is “consistent with the applicable requirements of this Act.” In accordance with that provision he has, in a separate proceeding, considered and approved the applicable Indiana water quality standards. 40 C.F.R. § 120.10. Authority to approve or disapprove a state’s identification of polluted waters and calculation of total maximum daily loads is conferred on the Administrator by § 303(d)(2). These determinations are reviewable in an action in the district court under the judicial review provisions of the APA. See note 18, infra.
Assuming that the state standards are consistent with the Act and are not reviewable in the state courts, as U.S. Steel contends they are not, the only remaining possible challenge is a federal action against the state officers responsible for their enforcement alleging deprivation of a federal constitutional right. See Part III, B(l), infra.
U.S. Steel relies on Consolidation Coal Co. v. EPA, 537 F.2d 1236 (4th Cir. 1976), which held that when there was no available state procedure for obtaining a hearing on the appropriateness of a state-originated durational limit which was to be included in an NPDES permit pursuant to a § 401(d) certification, due process required that EPA hold such a hearing prior to taking any final administrative action. To the extent that Consolidation Coal may be inconsistent with the views we have expressed, we decline to follow it. As we have already noted, however, a hearing on the validity of the state standards under the United States Constitution would be available in an action against the state officers in the federal district court. That hearing may encompass the issue of whether the procedure by which the state adopted its regulations offended due process.
(5) Procedural and Evidentiary Rulings
We cannot consider vague contentions that there were unspecified “individual errors in procedure which violated either the Administrative Procedure Act . or the . . regulations ... or both.” U.S. Steel’s complaint regarding the Regional Administrator’s alleged “wholesale verbatim adoption of most of the Staff’s, proposed findings” is not enough to permit us to conclude that he did not independently review the evidence, nor is its charge that he “complete[ly] fail[ed] to acknowledge contrary evidence.” Nor can we review unspecified “clearly erroneous findings of fact and conclusions of law, and the deprivation of Petitioner’s right to due process of law.” Equally vague is the allegation of
“a course of procedure wherein one party is held strictly accountable to the rules while its opponents are given great leeway and where procedural rules are waived for one side but strictly enforced for the other.”
Similarly unspecific are the attacks upon the testimony of the agency’s experts as containing opinions they “were either not qualified to give or which were without foundation,” or as “unsworn in large part,” hearsay, or “legal conclusions.” Even apart from the wide latitude allowed an administrative agency in the receipt of evidence, it is impossible for a court to consider general allegations such as these. Challenges to specific conditions of the permit are considered below.
B. The Appeal from the District Court: No. 76-1425
The appeal from the judgment of the District Court dismissing U.S. Steel’s action also raises a series of procedural questions, some of which are related to those presented in the petition for review. We deal with these questions in the order in which they are alleged in the three counts of the complaint.
(1) Validity of Indiana Water Quality Standards (Count I)
U.S. Steel argues that the District Court should have required EPA to consider the constitutionality of the Indiana water quality standards. For the reasons stated above, the agency had no authority to consider the validity of those standards, and this relief was therefore properly denied by the District Court.
Nor could the District Court have properly granted U.S. Steel’s alternative request that the court itself review the validity of those standards under the United States Constitution. As we have seen, the standards are state, not federal, regulations, and the Administrator was required by the Act to include in the permit any discharge limitations necessary to meet them. While these state regulations, like any other state regulation or statute, can be challenged on federal constitutional grounds in a federal action against the appropriate state officials in a district in which jurisdiction and venue are proper, this was not such an action.
The District Court in this case, however, did have authority to review the Administrator’s approval, prior to the permit proceeding, of the Indiana water quality standards as consistent with the FWPCA. EPA argues that the complaint did not seek this relief, and we agree. Apart from the mere conclusory assertion that the Indiana standards are contrary to the purposes and provisions of the FWPCA, the complaint did not allege any incompatibility between the state standards and the Act. This claim was therefore insufficient in law.
(2) Validity of EPA Regulations (Counts II and III)
Also properly dismissed was U.S. Steel’s claim that the District Court should either have itself held invalid the NPDES substantive and procedural regulations, or ordered EPA to consider their validity "in the permit proceeding. As we have already held, this court is the proper forum for challenging those regulations on review of EPA’s permit order. We have considered the challenges asserted and found them to be without merit.
We therefore affirm the judgment of the District Court in No. 76-1425, dismissing U.S. Steel’s complaint. We now return to the petition for review, No. 76-1616, and consider U.S. Steel’s challenges to specific conditions of the permit.
IV.
Permit Conditions
A. Limitations Required by State Law or Regulation
The limitations on the six chemicals, ammonia, cyanide, phenol, chloride, sulphate and fluoride, and the thermal limitations are, as we have seen, state limitations adopted by Indiana pursuant to its plenary power preserved by § 510. They were included in the permit because § 402(a)(1) required the Administrator to condition the discharge permit on compliance with “all applicable requirements” of, inter alia, § 301, and § 301(b)(1)(C) requires dischargers to achieve, in addition to the technology-based effluent limitations determined by EPA, “any more stringent limitation, including those necessary to meet water quality standards . . . established pursuant to any State law or regulation (under authority preserved by Section 510) it
(1) Chemical Limitations
The limitations for the six chemicals are aggregate weight limits on the total discharges that may be made from all the outfalls at which those chemicals are discharged, which are the river outfalls. The allowable discharges are not allocated among the individual outfalls. Compliance, however, is determined by monitoring at each outfall.
In challenging these limitations, U.S. Steel argues that the water quality standards on which certain limitations are based are invalid. As we have held in Parts III, A(4) and III, B(l), supra, however, those standards are not subject to review in either of the appeals presently before us. The company also argues that the limitations on the six chemicals are impossible to achieve with present technology. Even if this is true, it does not follow that they are invalid. It is clear from §§ 301 and 510 of the Act, and the legislative history, that the states are free to force technology Although the Indiana Board considered technology in setting some of these limitations, it was not required to do so. Only the federal effluent limitations must be technology-based, and they represent the minimum level of pollution reduction required by the Act. See Leg. Hist., at 1468. If the states wish to achieve better water quality, they may, even at the cost of economic and social dislocations caused by plant closings. See Leg. Hist., at 231,1282. Cf. Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). Thus we reject this argument as well.
U.S. Steel also asserts in conclusory terms that the limitations on the six chemicals are not based upon substantial evidence and are arbitrary. If this is intended as an argument that the allocations are more stringent than would be necessary to achieve the water quality standards, it fails for two reasons:
First, notwithstanding EPA’s overgenerous concession to the contrary, this necessity argument is not available in this proceeding. Section 301(b)(1)(C), the ultimate source of the Administrator’s obligation to put the state limitations in the permit, is not limited to restrictions based on water quality standards but extends to “any more stringent limitation” the state adopts pursuant to the authority preserved by § 510. As we read the Act, the Administrator had no more authority to inquire into whether the limitations adopted by the state were necessary to achieve the water quality standards than he did to inquire into the validity of those standards.
Second, even if a necessity argument could be entertained in this proceeding, U.S. Steel has presented its objections in such a general and conclusory way that we doubt such an argument was intended. Assertions that the limitations are “not based upon substantial evidence” and “not supported by accurate data and analysis and sound scientific principles,” without elaboration or discussion of the information in the record which is pertinent to each limitation, cannot be considered. Ours is an adversary, not an inquisitorial, system. Neither time nor expertise is available to us for searching a voluminous record for error in response to such general assertions as these. The fact that the entire record has not even been brought before us, and we therefore could not exclude the possibility of record support for a given limitation in data which were not made available, leads us to believe that these arguments were included in the brief as rhetoric rather than as a serious challenge to the record support for each limitation.
We accordingly overrule the objections to the limitations on the six chemicals.
(2) Thermal Limitations
The permit also establishes limitations, effective July 1, 1977, on the temperature of the adjacent receiving waters of Lake Michigan and the Grand Calumet River after admixture of the discharges. Monitoring requirements of the permit enable EPA to measure U.S. Steel’s compliance with the thermal limitations. The limits are taken directly from the Indiana water quality standards applicable to the two bodies of water. The permit offers U.S. Steel an alternative to compliance with these limitations as authorized by § 316(a) of the Act. Under that section, the company may attempt to
“demonstrate to the satisfaction of the Administrator . . . that [the] effluent limitation[s] proposed for the control of the thermal component of [its] discharge . . . [are] more stringent than necessary to assure the projection [sic] and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on [Lake Michigan and/or the Grand Calumet River].”
If the company’s showing is successful, EPA may set less stringent thermal limitations, provided they still meet the aquatic-life requirements. U.S. Steel challenges both the thermal limitations and the thermal demonstration provisions of the permit.
U.S. Steel argues that “the thermal limitations in this permit are vague, arbitrary and unreasonable.” As effluent limitations based directly on state water quality standards and included in the permit pursuant to § 301(b)(1)(C), however, the thermal limitations are not open to substantive challenge in this proceeding. The company’s related claim that compliance with the limits cannot be reliably determined must be rejected insofar as it is an objection to the permit’s use of temperature as the measurement scale for determining compliance with thermal water quality standards. We know of no alternative measurement scale. And, although thermal monitoring is necessarily imprecise, it is possible to determine whether a discharger is in substantial compliance with thermal effluent limitations. The thermal limitations in the permit are therefore upheld.
U.S. Steel also objects to the “thermal discharge demonstration” provision of the permit, included pursuant to § 316(a), which offers the company an opportunity to demonstrate that the thermal limitations imposed by the permit are more stringent than necessary to protect aquatic life. First, U.S. Steel argues that it is unfair to make such a demonstration “the sole method by which a permittee can obtain relief from improper thermal limitations, [especially] . . . where the permittee is attacking the validity of the thermal limitations themselves.” We have held, however, that U.S. Steel cannot challenge the validity of the thermal limitations in this proceeding. The fairness argument must be addressed to the Congress, not this court.
Second, the company argues that the permit improperly applied § 316(a) and its implementing regulations, 40 C.F.R. part 122. See Appalachian Power Co. v. Train, supra, 545 F.2d at 1371-1372. The argument that the Grand Calumet River would not exist, much less contain a balanced aquatic life, without U.S. Steel’s discharges from Gary Works goes to the validity of the thermal limitations themselves, and is therefore not available in this proceeding. The argument that the study requirements are too vague to enable the company to comply with them does not persuade us. Accordingly, the thermal discharge demonstration provision is upheld.
B. Technology-Based Effluent Limitations
(1) At All Outfalls Except # 017
U.S. Steel attacks all the effluent limitations indiscriminately as arbitrary and unsupported by substantial evidence. Its broadside argument, if read literally, is that no limitation for any outfall is supported by substantial evidence and all are arbitrary. It should first be noted that an examination of the Regional Administrator’s decision shows that U.S. Steel did not object before the agency to many of the limitations. Moreover, U.S. Steel’s brief does not particularize its claim with respect to any outfall or limitation. As we said in considering the challenge to the limitations on discharges of the six chemicals, a court will not, in response to such a general assertion of error, sift a vast administrative record, only a portion of which has even been brought before it by the parties, for evidence arguably bearing on each limitation. In view of U.S. Steel’s failure to particularize, it is not surprising that EPA’s brief does not address itself to individual limitations. This means, however, that we have no guidance from either side in analyzing the evidence relating to particular limitations.
We would forfeit the benefits of the adversary system if we undertook the independent and unassisted search for error which would be necessary to determine the accuracy of U.S. Steel’s general assertion of arbitrariness and lack of record support. This court will consider a challenge to an effluent limitation in an NPDES permit only if our attention is directed by the petitioner’s brief to the specific limitation and the alleged deficiencies in the supporting evidence or reasoning of the agency.
(a) Statistical Analysis
As we noted above, EPA and U.S. Steel agree that BPT is currently in place at all outfalls but # 017 (which is discussed separately below). The company argues that technology-based limitations on those outfalls should be no more stringent than past operating levels, but EPA contends that in certain instances past operations do not reflect the careful and efficient operations required under the NPDES permit program. The past operating levels are reflected in the monitoring data included in the monthly reports submitted by U.S. Steel to the Indiana Stream Pollution Control Board from 1973 to 1975. EPA’s engineers used these data in calculating the permit limitations, but they disregarded extremely high discharge values they considered unrepresentative of proper plant or treatment-facility operations. U.S. Steel argues that this method was in error. Its proposed limitations were based on a statistical analysis of all the monitoring data, including the aberrations, and were computed so as to predict with a specified degree of accuracy, such as 95 percent, that no more than a given percentage of samples, such as 5 percent, would exceed the limitations.
U.S. Steel points out that EPA discarded the high values without actual knowledge of their causes, although EPA witness Spyropoulos, a former design engineer for U.S. Steel who participated in EPA’s development of the effluent limitations, testified to a number of possible causes. He and the other EPA witnesses agreed with U.S. Steel that statistical analysis was one appropriate method for computing effluent limitations, and so do we. We also agree with EPA, however, that it is entitled to use its expertise in pollution-control technology in judging the reliability or representative quality of particular data. See American Meat Institute v. EPA, 526 F.2d 442, 457 (7th Cir. 1975); FMC Corp. v. Train, 539 F.2d 973, 986 (4th Cir. 1976). Although EPA did not determine the specific cause of particular high values, our review of all the monitoring data persuades us that its decision to exclude those values as aberrations was a permissible one. As EPA exhibits demonstrate, the Gary Works regularly operated at discharge levels well below those indicated by the excluded values during the 29-month monitoring period. The range among the values used in EPA’s calculations illustrates the operating flexibility available to U.S. Steel under the EPA method.
There are two additional reasons for rejecting the U. S. Steel proposal. First, we agree with the testimony of the EPA witnesses that one of the goals of the NPDES permit program is to insure that pollution-control facilities are operated as efficiently and carefully as possible. The U. S. Steel proposal, with effluent limitations derived from data taken before the permit was issued, may build in a factor for human or mechanical lapses that should not be tolerated.
Second, the limits proposed by U. S. Steel would, as EPA observes in its brief, actually allow an increase in the discharge of pollutants from Gary Works. U. S. Steel attempts to justify this result by showing that its proposal was consistent with EPA’s own guidelines for the steel industry. The company derived its proposed daily maximum limits by multiplying the daily average limits by three, in accord with those guidelines. See 40 C.F.R. part 420 and 39 Fed. Reg. 24118 (change # 6) (June 28, 1974). It failed however, to demonstrate that EPA intended the factor of three as anything but a rough approximation of the daily fluctuations likely to occur in the steel-manufacturing process. Where, as here, the performance data show the plant to be capable of operating on a regular basis within a relatively narrow range far below the arbitrary multiplier of the guidelines, EPA may use the power granted it by § 402(a)(1) of the Act to set limitations lower than those that would result from use of the arbitrary multiplier. See Leg. Hist, at 170,176,1468. To do otherwise would be to authorize an increase in the pollutants discharged by the plant, a result Congress certainly did not intend. See note 44, infra.
(b) Surface-Runoff Effects
U. S. Steel next argues that, if the more lenient effluent limitations it proposes are not accepted, then at least monitoring samples taken during periods of surface runoff resulting from rainfall or melting snow should be disregarded in determining compliance with the NPDES permit.
As is demonstrated by the testimony of EPA witness McDermott, also an EPA engineer formerly employed by U. S. Steel, the agency considered surface-runoff effects in developing the effluent limitations for Gary Works. EPA’s analysis revealed that the surface runoff from a day-long storm of .4 inches per hour, over the entire drainage area of Gary Works, would comprise only slightly over 10 percent of the plant’s total water discharges for that day. The process-water portion of this total volume would be treated. The portion of the runoff that found its way into the 12 primarily cooling-water outfalls would have little or no ground contact because of the roof drains or, in the case of the runoff from the yard and road drains, would be taken to a sewer for treatment. And, if surface runoff did increase the concentration of total suspended solids in the cooling-water discharges, it would presumably increase those concentrations in the intake as well. The permit provision allowing U. S. Steel to calculate TSS levels on a net basis thus obviates to a great extent the need for a special surface-runoff exception.
Finally, we note that U. S. Steel itself offered no proof of the extent of this supposed surface-runoff effect on the Gary Works. The rainfall data that were presented were based on conditions at Midway Airport in Chicago, and even this information was not correlated with particular high discharge values revealed by the data from the 29 months of monitoring. Thus we are unable to determine what effect surface runoffs have had on the discharge levels or the treatment facilities at the Gary Works.
Accordingly, EPA was not required to accept U. S. Steel’s contention that exemptions should be granted for surface runoffs.
(2) Outfall # 017
(a) BPT and Variance
Before the issuance of the October 1974 permit in this case, EPA promulgated single-number effluent guidelines and limitations for the iron and steel manufacturing point-source category. 39 Fed. Reg. 24114 (June 28,1974); 40 C.F.R. part 420. In U. S. Steel’s permit the TSS limitations for outfall # 017, which serves the iron-making blast furnaces, were calculated from these limitations, 40 C.F.R. § 420.42, which, as is apparent from the Development Document, were based on EPA’s conclusion that recycling constituted BPT for iron-making blast furnaces. Cf. E. I. duPont de Nemours & Go. v. Train, 430 U.S. 112, 122, 132 n. 23, 97 S.Ct. 965, 972, 977 n. 23, 51 L.Ed.2d 204 (1977).
In American Iron & Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975) (AISI (I)), the steel industry challenged various aspects of the regulations, but did not attack the 1977 TSS limitations based on the conclusion that recycling was BPT. The Third Circuit, while remanding the 1977 regulations, explicitly upheld the new-source and 1983 limitations on TSS discharges from iron-making blast furnaces, thereby approving recycling-based limitations twice as stringent as the 1977 limitations. The court’s remand was based in large part on its conclusion that § 301 limitations must specify a range of effluent reductions attainable through the application of BPT rather than single numbers. Apart from the fact that the Supreme Court’s approval of single-number effluent limitations in duPont renders this conclusion questionable, even the Third Circuit’s remand dealt only with the agency’s § 304(b)(1)(A) calculation of the “degree of effluent reduction attainable” by installing blast-furnace recycling; the underlying § 304(b)(1)(B) determination that recycling constitutes BPT remained unaffected. Thus, whether or not the entire iron and steel guidelines and limitations are resurrected by the duPont decision, the treatment in AISI (I) of the TSS limitations for iron-making blast furnaces leaves unimpeached EPA’s conclusion that recycling is BPT.
Nevertheless, following that decision, the EPA Regional Administrator ordered a limited remand of the instant permit proceeding, in order to develop “further data on the best practicable engineering judgment as to what constitutes bpt” for the iron-making blast furnaces at Gary Works. After the remand, new TSS limits were developed for outfall # 017 based on EPA’s determination that a blast-furnace recycling system constitutes the “best practicable control technology currently available” for that phase of the iron-making process, § 304(b)(1)(B).
U. S. Steel challenges EPA’s determination that blast-furnace recycling constitutes BPT for the iron-making process at the Gary Works on three grounds: (1) EPA failed to consider the six factors set forth in § 304(b)(1)(B) as “relating to the assessment of [BPT],” and therefore the agency’s designation of recycling as BPT was improper. (2) Installation of a recycling system would cause violations of the sulphate limits in the permit, and therefore recycling is not a “practicable” technology for Gary Works. (3) A recycling system cannot be built and placed in operation at Gary Works before July 1,1977, and therefore is not “currently available” to U. S. Steel.
To begin with, we believe it was unnecessary for EPA to reexamine the BPT question following the remand in AISI (I). As duPont makes clear, technology-based § 301 effluent limitations and § 304 guidelines, and necessarily the BPT on which they are based, are uniform national standards and are not to vary from plant to plant. duPont v. Train, supra, 430 U.S. at 127, 130-132, 136-137, 97 S.Ct. at 974, 976, 979; see also AISI v. EPA, supra, 526 F.2d at 1043. When no limitations or guidelines are yet available, NPDES permits are to be issued under § 402(a)(1) upon “such conditions as the Administrator determines are necessary to carry out the provisions of this Act.” See Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 709-710 (1975). We believe that under these circumstances the BPT to be ascertained by EPA is still a uniform national standard for the class or category of plants of which the plant in question is a member. Therefore, even if the applicable BPT had not already been determined, the appropriate inquiry for EPA would have been, not what constituted BPT for the Gary Works, but what constituted BPT for the category and class of point sources of which the Gary Works was a member. In fact, however, EPA had already determined BPT for iron-making blast furnaces in developing the limitations which were remanded in AISI (I). This BPT determination, and the nationally uniform TSS limitations based thereon, unimpeached, as we have seen, by the AISI (I) remand, constitutes a proper basis for establishing the TSS limitations in the permit for the Gary Works. It was unnecessary for EPA to consider the § 304(b)(1)(B) factors anew in this proceeding or otherwise reexamine the BPT issue.
The proper inquiry for EPA, in establishing the permit limitations in this proceeding, was whether the circumstances of the individual plant warranted a variance from the nationally uniform limitations. Although the Act itself provides for individual source variances only from the 1983 limitations, the Supreme Court’s opinion in duPont v. Train, supra, 430 U.S. at 127-128,97 S.Ct. at 975, infers variance authority in EPA with respect to the 1977 limitations as well. EPA has regularly included variance provisions, allowing different effluent limitations if “fundamentally different” factors are shown, in its regulations containing 1977 limitations, and it did so in the iron and steel regulations remanded in AISI (I)-
The agency’s reexamination of the BPT issue as if it were obligated to determine BPT for the Gary Works individually was the equivalent of determining whether there were fundamentally different factors at that plant which made BPT impracticable there and thus justified a variance from nationally applicable limitations based on BPT. From EPA’s conclusion that recycling was “BPT for the Gary Works” it follows that the plant was not entitled to a variance. We now examine the facts and reasoning underlying that conclusion.
In both the initial hearing and the hearing on remand EPA considered the Development Document and other information it had used in formulating the guidelines and limitations for the iron and steel industry. At the hearing on remand two EPA employees, James McDermott and Peter Spyropoulos, testified concerning the applicability of recycling technology to the Gary Works. The record demonstrates that EPA analyzed the § 304(b) factors with respect to the Gary Works specifically, as well as with respect to the steel industry in general. Furthermore, substantial evidence supports EPA’s designation of blast-furnace recycling as BPT for the iron-making process in the steel industry generally and the reasonableness of imposing limitations on the Gary Works based on that BPT.
It is undisputed that recycling significantly reduces TSS levels in water discharged from iron-making blast furnaces. Moreover, as McDermott testified, the reduction in water flow achieved by the recycling system also increases the concentration of other pollutants, thereby rendering them susceptible to treatment or disposal which would otherwise be impossible or uneconomic.
The Development Document notes that although a “majority of the [steel] plants around the country are operating on a once-through basis,” recycling is employed as a water conservation device “in many plants.” Spyropoulos testified that he helped design a recycling system similar to the one EPA proposes here; that system was installed at U. S. Steel’s own South Works Plant in South Chicago by December 1970. Blast-furnace recycling is already in place at nearly all the iron-making facilities in the Chicago area; it is, as noted in the Development Document, “a well-established art.”
Both McDermott and Spyropoulos testified that blast-furnace recycling could be installed at the Gary Works. Their testimony was based on an inspection of the plant, a survey of four different steel plants employing blast-furnace recycling, and discussions with manufacturers, contractors, and others. They also testified regarding the pollution-control facilities now in place at Gary Works, the new facilities and equipment needed for a recycling system there, and the costs and time required to construct and operate such a system.
EPA could reasonably conclude that, despite the age of the iron-making blast furnaces at Gary Works, retrofitting would be feasible. Recycling has been installed at U. S. Steel’s older South Works Plant and other existing iron-making blast furnaces. Because it is a part of the post-process treatment, it does not require changes in the manufacturing process itself. EPA’s conclusions demonstrate that a variance based on infeasibility of recycling for the Gary Works was not justified. Compare AISI v. EPA, supra, 526 F.2d at 1048.
We also reject U. S. Steel’s argument that the TSS limitations based on recycling as BPT are improper because recycling would result in violations of other limitations in the permit, specifically those governing discharges of sulphate. This argument is based on the fact that the acidity-alkalinity control unit, which would be included in the proposed recycling system to minimize scaling, would use sulphuric acid to lower pH. See note 40, supra. This would increase discharges of sulphates above the levels allowed by the sulphate limitations of the permit. U. S. Steel asserts that no technology is known that will enable it to solve this problem, and that therefore either the sulphate limits or the TSS limits must give way.
The sulphate limits were based on the Indiana waste load allocations, and were included in the permit pursuant to § 301(b)(1)(C). Although these limits restrict U. S. Steel to its present discharges, and may be below the level necessary to maintain water quality in U. S. Steel’s segments of the stream, they are the waste load allocations adopted by the Indiana Stream Pollution Control Board and approved by EPA, under § 303(d) of the Act. Thus the sulphate limits are not subject to challenge in this proceeding, and must be accepted by EPA and this court.
The sulphate limitations cannot be said to make recycling “impracticable” at Gary Works, and therefore not BPT under § 301(b)(1)(A) or § 304(b). As we observed above, the latter section provides for a determination of BPT which will be the basis for guidelines and effluent limitations that will be uniform throughout the nation, duPont v. Train, supra, 430 U.S. at 129, 97. S.Ct. at 975. See also Leg. Hist., at 156, 162, 170. BPT, being nationally applicable, cannot be affected by the circumstances at a single plant. The real question, therefore, is whether the stricter Indiana standards justify a variance.
We believe they do not. The existence of state waste load allocations requiring limitations more stringent than the federal, technology-based limitations should not create a loophole through which compliance with the federal limitations may be evaded. Section 301(b)(1)(C) can hardly have been intended to authorize a state, by imposing limitations incompatible with BPT, to allow its industries to escape their duty to comply with nationally uniform federal limitations. An important reason for Congress’ adoption of nationally applicable federal effluent limitations was to prevent individual states from attracting industry by adopting permissive water quality standards. See, e. g., Leg. Hist., at 156, 263, 574-575. Surely Congress never intended those federal limitations to be relaxed because a state adopted water quality standards and waste load allocations requiring more stringent pollution controls. See Leg. Hist., at 1461,1468. Indeed, § 301(b)(1) provides that BPT-attainable effluent limitations “and . any more stringent limitation . . .established pursuant to State law or regulations” must be achieved by July 1, 1977.
Thus, we hold that the existence of more stringent state limitations is not one of the “factors” to be considered in determining whether an individual point source is entitled to a variance from a limitation based on BPT. This makes it unnecessary to consider EPA’s alternative argument that there presently exists technology capable of achieving both the TSS and the sulphate limitations. See note 20, supra.
U. S. Steel challenges the limitations based on blast-furnace recycling on the additional ground that it cannot construct and place into operation a recycling system by July 1, 1977. This contention must also be rejected. There was time to install a recycling system between October 31, 1974, when the permit was first issued, and July 1,1977, according to the testimony of Spyropoulos. The Supreme Court has held, in construing the Clean Air Act, that “litigation . . [seeking a variance from national standards] ... is carried out on the polluter’s time, not the public’s . . . Train v. Natural Resources Defense Council, 421 U.S. 60, 92, 95 S.Ct. 1470, 1488, 43 L.Ed.2d 731 (1975). There is no reason not to apply that principle here. Therefore U. S. Steel cannot use the delay between October 1974 and the present as an excuse for not installing a recycling system.
This conclusion is further supported by Congress’ intent that BPT be determined on a nationwide basis, with substantially the same technology-based effluent limitations applicable to all similar point sources. Temporal feasibility of BPT installation is not included in the § 304(b) factors and should not be a ground for a variance. Consideration of that factor would emasculate the mandatory nature of the July 1, 1977 compliance deadline. See Bethlehem Steel Corp. v. Train, 544 F.2d . 657 (3d Cir. 1976), cert. denied, - U.S. -, 97 S.Ct. 1666, 51 L.Ed.2d 369 (1977). Also, as the Third Circuit noted in Bethlehem Steel, Congress considered and rejected a provision of the House bill, which would have enabled EPA to grant a hardship exception to the July 1, 1977 compliance deadline when it “determines that it is not possible either physically or legally to complete the necessary construction within the statutory time limit.” Although Congress’ failure to enact this extension provision is not conclusive of its intent, it does offer some further confirmation of our conclusion that U. S. Steel was required to litígate on its own time. Id., 544 F.2d at 662.
(b) Interim Limitations
Sustaining EPA’s conclusions that recycling is BPT and that Gary Works is not entitled to a variance from the limitations based on BPT, does not, however, end our inquiry. U. S. Steel also challenges EPA’s § 304(b)(1)(A) calculation of “the degree of effluent reduction attainable through the application of [BPT]” at Gary Works, reflected in the interim TSS limitations. EPA calculated those limits by estimating the flow of water in the recycling system, the TSS concentration in the recycling flow, and the volume of water discharged from the system, or blowdown. EPA then multiplied the blowdown volume, expressed in gallons of water per ton of iron cast, by TSS concentration figure, and multiplied the product by a daily iron-production figure. The daily average effluent limitation on TSS discharges was the result of these computations.
U. S. Steel does not question EPA’s engineering analysis of the water flows or TSS concentration levels in the proposed recycling system. The company’s argument is that EPA’s use of a daily iron-production figure of 13,500 tons for outfall # 017 was improper. Both parties agree that the entire Gary Works produces an average of 20,000 tons of iron each day. About 6,500 tons of this total is usually cast by one blast furnace, number 13, which is a new furnace with its own recycling system that does not discharge through outfall # 017. Only the older furnaces, numbers 1-12, discharge through that outfall. The evidence also establishes that these older furnaces have produced up to 16,700 tons of iron in one day, and that furnace 13 has produced at least up to 8,700 tons in one day. The capacity of furnaces 1-12 is 19,971 tons per day; only eight of them need to be in operation for the group to cast 13,500 tons. U. S. Steel’s memorandum prepared pursuant to the Regional Administrator’s Order of Remand acknowledged that “some” of furnaces 1-12 are not operating at the present time.
Our review of the record persuades us that substantial evidence supports EPA’s use of 13,500 tons as the average daily iron-production figure for the blast furnaces served by outfall # 017. U.S. Steel does not contend that this is not the normal production figure. Rather, it argues that, if furnace 13 were out of service or unable to produce at capacity for some reason, the production slack might be taken up by furnaces 1-12, resulting in higher water and TSS discharges from outfall # 017. The company argues, in effect, that the permit should be based, not an actual production, but on the capacity of furnaces 1-12, because one day they might be required to produce up to that figure. We reject this claim. If special circumstances, such as relining or repair, require U.S. Steel to shut down furnace 13, a modification of the permit can be sought. The interim limit on the daily average TSS discharges from outfall # 017 reflects the usual operations at Gary Works. The daily maximum represents a 50 percent increase over the daily average discharge, permitting occasional increases in blowdown flows or TSS concentrations. Moreover, EPA’s use of a 50 mg/liter figure, instead of the projected operating level of 36 mg/liter, in calculating the TSS concentrations in the blowdown and recycling waters resulted in limitations which give U.S. Steel a measure of operating flexibility. We uphold the interim effluent limitations on TSS discharges from outfall # 017.
U.S. Steel argues in its reply brief that EPA “completely failed to determine limitations for other contaminants” when it calculated the “degree of effluent reduction” attainable by converting to blast-furnace recycling. As an argument raised for the first time in the reply brief, it need not be considered. American Meat Institute v. EPA, supra, 526 F.2d at 462. We observe, however, that here too U.S. Steel misses the distinction between the technology-based effluent limitations required by § 301(b)(1)(A) and the limitations based on state law required by § 301(b)(1)(C). U.S. Steel could not have benefited if EPA had first determined the effect of recycling on other pollutants: Indiana standards impose a ceiling on pollutants, which cannot be raised whatever the effect of recycling.
(c) Final Limitations
The interim limitations for TSS discharges from outfall # 017 are 1,688 pounds daily average and 2,532 pounds daily maximum. The permit’s final limitations require U.S. Steel to reduce its TSS discharges to 500 pounds daily average and 750 pounds daily maximum by July 1, 1979. The Regional Administrator found that these limits can be achieved by installing a system which treats the blowdown from the recycling system, and that U.S. Steel must install such a system in any event, in order to achieve the effluent limitations based on state law. Alternatively, he found that “improved efficiency of operation of the recycle system” could achieve these limitations. U.S. Steel’s challenge to this finding is the conclusory assertion that “[t]he proper application of blast furnace recycle technology will not result in compliance with those final effluent limitations for suspended solids.” (Emphasis in original.) The Regional Administrator’s findings were based on two EPA exhibits introduced at the administrative hearing on remand. Inasmuch as these exhibits were not included in the parts of the record brought here by the parties, we cannot examine them and must assume that they support the findings.
(3) Cooling-Water Intake Structures
The permit also requires U.S. Steel to conduct an intake monitoring program, as part of a study of the environmental impact of the cooling-water intakes for Gary Works, and to submit a proposal for meeting the § 316(b) requirement that
“the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.”
U.S. Steel objects to this condition, arguing that this requirement may not be applied to it because Congress only intended that steam-electric generating plants be required to comply with § 316(b), and that § 402(a)(1) does not allow EPA to condition NPDES permits upon compliance with § 316(b).
We reject these arguments. First, § 316(b) applies on its face to all technology-based effluent limitations “applicable to a point source.” U.S. Steel asks us to rely on an isolated remark in the legislative history to reject the plain meaning of the statute. EPA, which is the agency charged with enforcing this statute, construes § 316(b) to apply to all point sources. That interpretation of the statute comports with its plain meaning, and we accept it. Second, as § 316(b) itself makes clear, these requirements are to be implemented through standards established pursuant to §§ 301 and 306. Thus § 402(a)(1) implicitly requires the Administrator to insure compliance with § 316(b) as one of the permit conditions. See also Appalachian Power Co. v. Train, supra, 545 F.2d at 1371-1372.
U.S. Steel’s argument that, even if applicable, the permit provision is unreasonable must also be rejected. Not even a “rough cost-benefit analysis” is necessary as a basis for the requirement that the company conduct a study of the impact of the present cooling-water intake structures on aquatic life in Lake Michigan. Such a study, intended to assist EPA in developing § 316(b) effluent limitations, is well within the agency’s § 308 authority. Finally, the company’s complaint regarding EPA’s failure to compare the costs and benefits of the various technologies available to reduce the adverse environmental impacts of cooling-water intake structures comes too soon. No particular control methods are required by the permit, and we trust that EPA will conduct a limited cost-benefit analysis once the information on which an evaluation of the various technologies can be made becomes available. Accordingly, we affirm the cooling-water intake provision of the permit.
C. Monitoring Requirements
U.S. Steel has two basic complaints regarding the monitoring required by the permit: it is to be done too often and at too many places.
The initial monitoring requirements contained in the permit correspond closely to U.S. Steel’s present monitoring practices, as required by the Indiana Stream Pollution Control Board. The final requirements increase the monitoring at all process-water outfalls, requiring daily monitoring for several pollutants as well as temperature and continuous monitoring for flow and pH at several outfalls. Both the remaining process-water and all cooling-water outfalls will be monitored once a week for several pollutants and once a month for others. All the monitoring requirements exceed those proposed by U.S. Steel and present levels, both in the frequency of measurement and in the number of pollutants for which measurements must be taken.
Section 308 of the Act grants the Administrator broad authority to require NPDES permittees to monitor “at such locations [and] at such intervals” as he shall prescribe, “[w]henever [it is] required to carry out the objective of [the Act].” Similarly, § 402 vests him with authority to “prescribe conditions for [NPDES] permits ... including conditions on data and information collection . . . .” We conclude that the monitoring requirements set forth in the permit are within this broad authority-
EPA considered four factors in determining the monitoring requirements, and set the requirements separately for each outfall. These factors were: the nature of the discharges and their impact on the receiving stream; the variability of the discharges; the volume of water discharged; and the present monitoring practices of U.S. Steel. These factors are proper, and the record establishes that they were given appropriate weight by EPA. For example, because of the higher concentrations and greater variety of pollutants present in process water, the permit appropriately requires more frequent monitoring of process-water discharges than of cooling-water discharges. Similarly, more frequent monitoring was required at those outfalls which tended to fluctuate in the amount and quality of their discharges.
The monitoring requirements — similar to or less stringent than those imposed in the approximately 50 other steel-plant permits issued in Region Five — will not work an unjustified economic hardship on U.S. Steel. The chief difference between U.S. Steel’s present monitoring practices and the initial requirements is that compliance at nine of the outfalls will be based on a 24-hour composite sample rather than the 8-hour composite sample presently prepared. The use of the 24-hour composite sample is extended to all outfalls by the final monitoring requirements. These changes will more than triple the number of samples taken. The use of a 24-hour composite sample will doubtless be more expensive than present monitoring practices, but it will present a more complete picture of the discharges from the Gary Works, reflecting fluctuations over the course of an entire day of production. At the outfalls monitored on a daily basis, it will allow an almost continuous check on the performance of the treatment facilities at Gary Works.
By comparison, U.S. Steel’s permit proposals call for monitoring only once a week, even at the seven outfalls now sampled five times in eight days, and would replace the monitoring for several pollutants now conducted at each outfall with monitoring at the Pennsylvania Railroad Bridge, four- and-one-half miles downstream. Monitoring at each outfall enables the permittee and EPA to pinpoint the source of any discharges that exceed the plant-wide limitations on particular pollutants. Furthermore, the U.S. Steel proposal would, in effect, allow it to use the four-and-one-half mile stretch of the river as an extended treatment facility, something hardly contemplated by either the Indiana water quality standards or the FWPCA.
We cannot say that EPA exceeded its authority or acted unreasonably when it determined that regular and frequent monitoring at each outfall is necessary to insure prompt detection and rectification of permit violations. Therefore, we affirm the initial and final monitoring requirements set forth in the permit.
D. Deep Well
The permit imposes effluent limitations and study and monitoring requirements on U.S. Steel’s discharges of acid wastes into a deep well. U.S. Steel challenges EPA’s legal authority to impose these restrictions, citing the language of the Act, United States v. GAF Corp., 389 F.Supp. 1379 (S.D.Tex.1975), and the legislative history of the Act on which that decision is based. We reject U.S. Steel’s argument.
The statute authorizes EPA to regulate the disposal of pollutants into deep wells, at least when the regulation is undertaken in conjunction with limitations on the permittee’s discharges into surface waters. Section 402(a)(1) provides that the EPA’s permit program “shall be subject to the same terms, conditions, and requirements as apply to a state permit program.” And EPA approval of a state’s permit program, governing “discharges into navigable waters,” is conditional upon EPA’s conclusion that the state program includes “adequate authority . [t]o issue permits which . . . control the disposal of pollutants into wells.” Section 402(b)(1)(D). Thus EPA’s administration of an interim NPDES permit program concerning surface discharges includes the authority to control disposals into wells.
The general provisions and definitions of the FWPCA support this view of EPA’s authority. Section 402(a)(1) empowers the Administrator to “issue a permit for the discharge of any pollutant, or combination of pollutants,” provided certain conditions are met. “Pollutant” is defined in § 502 of the Act to include “chemical wastes . discharged into water.” Section 502(6). One exception to the definition of “pollutant,” § 502(6)(B), provides that
“pollutant . . . does not mean . . . (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well ”
Applying the canon expressio unius est exclusio alterius to the quoted language, we conclude that the listed materials are “pollutants” when injected into wells under any other circumstances. U.S. Steel does not deny that its acid discharges into the deep well are “chemical wastes” within § 502(6). Therefore, their discharge into the deep well may properly be regulated by the permit-granting authorities pursuant to § 402(a)(3) and (b).
The legislative history also supports our construction of the statute. Exhibit 1, accompanying Senator Muskie’s report of the conference committee on S. 2770 (the Act), states as follows:
“The Conferees intend that this provision [§ 502(6)(B)] assure that no injection or disposal occur in such a manner as to present a potential hazard to ground water quality.” Leg. Hist., at 178.
During the House debate on the report of its conference committee, Representative Kemp stated that because
“[f]or the first time ground waters have been given the same emphasis as surface waters . . . [the Act is] an important step forward in the protection of the underground environment . . . .’,
Similarly, the report on the House version of the Act notes its committee’s intent that
“the exclusion from the term ‘pollutant’ . appl[y] only to the properly executed injection of materials into wells to stimulate the primary, secondary, or subsequent production of crude oil or natural gas, and to the properly executed disposal in wells of brines derived in association with [their] production . . . .”
Finally, the Senate Report which accompanied S. 2770 notes that EPA is to prepare “guidelines for disposal of material in deep wells,” Leg. Hist., at 1471, and explains that, while federally imposed standards for ground waters are not contemplated, state regulation under § 402 is required “to protect ground waters and eliminate the use of deep well disposal as an uncontrolled alternative to toxic and pollution control.” Leg. Hist., at 1491.
E. Schedules of Compliance
In addition to the specific discharge limitations discussed above, the permit includes schedules of compliance designed to insure that the effluent limitations required by the permit are achieved in a timely fashion. These items are included in the permit pursuant to the Administrator’s authority under §§ 301, 401, and 502(11) and (17).
U.S. Steel does not challenge EPA’s authority to set reasonable schedules of compliance under these statutory provisions. Instead, the company argues that the schedules set in the permit are arbitrary, that EPA’s delay in promulgating nationally applicable effluent guidelines entitles it to an extension of the July 1, 1977 deadline for achieving BPT-based effluent limitations, and that the statute is satisfied.if the permittee, before the deadline, initiates a program which will eventually achieve compliance with the limitations. We reject these arguments, and substantially approve the schedules of compliance as they are set forth in the permit under review.
First, we disagree with U.S. Steel’s general characterization of the schedules of compliance as “arbitrary, capricious and without foundation.” These schedules were established with the required levels of effluent reduction and the statutory deadlines in mind and appear to us to be on the whole reasonable.
U.S. Steel points out that several of the compliance dates had already passed by the time the permit was issued. We do not take these clearly unfair permit conditions as lightly as it appears the agency itself does. Regardless of whether they weré due to a mere “quirk of administrative procedure,” as EPA asserts, the inclusion of dates which have already passed and therefore cannot be complied with is inexcusable. Fortunately, there was no prejudice to U.S. Steel from these inclusions, because EPA itself recognized that no enforcement action could be brought for non-compliance with those dates without violating due process. And, as the agency observes, § 309(a)(3) gives the Administrator discretion to issue a compliance order in lieu of bringing a civil action. The presence of the invalid parts of the schedules, which have not prejudiced U.S. Steel, does not require us to invalidate the schedules in their entirety.
U.S. Steel’s second argument, that EPA’s delay entitles it to an extension, must be rejected in view of the mandatory nature of the deadlines contained in § 301(b). As we observed in our discussion of the company’s claim that temporal infeasibility made recycling not “currently available” to it, the congressionally imposed deadline of July 1,1977 is a firm one. We agree with the view expressed by the Third Circuit in Bethlehem Steel Corp. v. Train, supra, 544 F.2d at 663, that “it [is] not for the courts to upset that Congressional decision.” As the Supreme Court noted in an analogous context, such a statutory deadline is not subject to judicial nullification. Union Electric Co. v. EPA, supra, 427 U.S. at 269, 96 S.Ct. 2518.
Under the FWPCA, EPA was required to promulgate § 304 guidelines for various industries by October 18, 1973. Sections 304(b)(1)(A) and 306. Natural Resources Defense Council, Inc. v. Train, supra, 510 F.2d at 704-705. The agency did not promulgate guidelines for the iron and steel industry, however, until compelled to do so by that decision. 39 Fed.Reg. 24114 (June 28,1974). U.S. Steel argues that this delay in the statutory timetable either nullifies the July 1,1977 deadline or entitles it to an extension of the time for compliance. We do not believe Congress intended such a result. U.S. Steel’s permit was first issued in October 1974, well before the January 1, 1975 deadline apparently contemplated by Congress for the issuance of permits. See § 402(k); see also Natural Resources Defense Council, Inc. v. Train, supra, 510 F.2d at 706-710. Although EPA’s guidelines were then in effect, BPT and the resulting effluent limitations would have been determined in the permit proceeding itself if they had not yet been promulgated. Id. at 709. Thus, it appears that the obligations imposed on an individual discharger by the permit are enforceable according to the statutory timetable whether or not they are based on previously issued guidelines.
U.S. Steel does not argue that the remand of the iron and steel guidelines and the resulting remand of this permit proceeding themselves justify an extension. As we have already held with respect to recycling as BPT, U.S. Steel must litigate on its own time. Cf. Train v. Natural Resources Defense Council, supra, 421 U.S. at 92, 95 S.Ct. 1470.
U.S. Steel’s final argument is that the statute itself allows the July 1, 1977 deadline to be met simply by beginning action on a schedule of compliance which will eventually result in achieving the limitations based on BPT or state regulations. We reject this contorted reading of the statute. We recognize that the definition of “effluent limitation” includes “schedules of compliance,” § 502(11), which are themselves defined as “schedules ... of actions or operations leading to compliance” with limitations imposed under the Act. Section 502(17). It is clear to us, however, that § 301(b)(1) requires point sources to achieve the effluent limitations based on BPT or state law, not merely to be in the process of achieving them, by July 1, 1977. See Bethlehem Steel Corp. v. Train, supra, 544 F.2d at 662.
Therefore we uphold the schedules of compliance set forth in the permit. We also deny U.S. Steel’s recently filed motion for a stay pending appeal of the schedule of compliance contained in the permit for the installation of blast-furnace recycling at outfall # 017.
The District Court’s decision in No. 76-1425 is Affirmed. In No. 76-1616 the Petition for Review is Denied.
. Sections of the Act are referred to in this opinion by their designations in the Statutes at Large. The parallel United States Code citations for the sections to which most frequent reference is made are as follows:
Section 301 — 33 U.S.C. § 1311
Section 303 — 33 U.S.C. § 1313
Section 402 — 33 U.S.C. § 1342
Section 510 — 33 U.S.C. § 1370
. The Act has been summarized and explained elsewhere. E. g., E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 116-121, 97 S.Ct. 965, 969-971, 51 L.Ed.2d 204 (1977); EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 202-209, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); American Meat Institute v. EPA, 526 F.2d 442, 444-446 (7th Cir. 1975). Our summary, therefore, will be limited to the provisions directly involved in these appeals.
. As the Supreme Court observed in EPA v. California ex rel. State Water Resources Control Board, supra, 426 U.S. at 205, 96 S.Ct. at 2025, “Under NPDES, it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms.” To the extent that language in our earlier opinion in Stream Pollution Control Board of Indiana v. U.S. Steel Corp., 512 F.2d 1036, 1042-1043 (7th Cir. 1975), may be read as inconsistent with this interpretation of the Act, it is of course no longer controlling.
. The terms “EPA” and “the Administrator” are used interchangeably in this opinion.
. Section 510 preserves in general terms the right of any state to impose limitations and standards more stringent than those adopted under the Act. Accordingly, state limitations supersede less stringent 1983 federal limitations adopted pursuant to § 301(b)(2), even though that subsection does not contain a counterpart of § 301(b)(1)(C). As for new sources, compare § 306(d) with § 510.
. One lake outfall (# 039) and six river outfalls (## 002, 017, 020, 028, 030, and 034) discharge primarily “process waste water,” which is defined in the Regulations, 40 C.F.R. § 401.-ll(q), as:
“any water which during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, by-product, or waste product.”
The remaining 12 outfalls discharge “noncontact cooling water,” which is defined in the Regulations, 40 C.F.R. § 401.1 l(n), as:
“water used for cooling which does not come into direct contact with any raw material, intermediate product, waste product or finished product.”
. Section 13 of the River and Harbor Act of 1899, 33 U.S.C. § 407, commonly known as the Refuse Act, prohibits a manufacturing establishment from discharging refuse water into any navigable water or into any tributary that could wash the refuse into navigable water. The Secretary of the Army, however, was authorized to issue permits allowing such discharges “whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby.” In light of this provision, U.S. Steel argued in United States v. United States Steel Corp., 328 F.Supp. 354 (N.D.Ind.1970), affd, 482 F.2d 439 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973), that the Refuse Act covered only discharges that obstructed navigation or anchorage. After the district court’s adverse decision in that case, and presumably because of it, the company filed its 1971 application for a permit under the Refuse Act. In 1973 the Supreme Court held that the Refuse Act imposed “a flat ban on the unauthorized deposit of foreign substances into navigable waters, regardless of the effect on navigation.” United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 671, 93 S.Ct. 1804, 1815, 36 L.Ed.2d 567 (1973).
. The final limitations for one outfall, # 034, also cover zinc, chromium, and tin. U.S. Steel did not contest these limitations during the agency proceedings.
. In Porter County Chapter of the Izaak Walton League of America, Inc. v. Train, 548 F.2d 1298 (7th Cir. 1977), this court assumed, without deciding, that the APA applies to NPDES permit-issuing proceedings.
. In its brief in American Meat Institute v. EPA, supra, 526 F.2d at 442, EPA acknowledged the applicability of the APA to informal rule-making proceedings under the Federal Water Pollution Control Act Amendments.
. Section 556 applies to hearings required by § 554, and § 557 to hearings required to be conducted in accordance with § 556.
. Cf. E. I. duPont de Nemours & Co. v. Train, supra, 430 U.S. at 136, 97 S.Ct. at 979:
“[I]n other portions of § 509, Congress referred to specific subsections of the Act and presumably would have specifically mentioned § 301(c) if only action pursuant to that subsection were intended to be reviewable/in the Court of Appeals.” /
. In resisting U.S. Steel’s argument that the Administrative Procedure Act required the administrative law judge to make the initial decision, EPA argues halfheartedly that § 554(d)(A) applies and exempts initial license application proceedings from the requirement. Elsewhere it inconsistently argues that the “substantial evidence” standard of judicial review is not applicable despite § 706(2)(E), which makes that standard applicable to proceedings governed by §§ 556 and 557, as license application proceedings are. U.S. Steel, although it argues that the “substantial evidence” test is applicable for other reasons, elsewhere urges that the hearing officer should have made the initial decision, arguing that § 554(d)’s exemption for initial license application proceedings is inapplicable. See text at Part III, A(2)(b), infra. As we observed above, see supra, text at note 7, this appears to be U.S. Steel’s first application for a discharge permit.
. More than 42,000 dischargers have applied for permits, E. 1. duPont de Nemours & Co. v. Train, supra, 430 U.S. at 132, 97 S.Ct. at 977, of whom about 2,000 have requested adjudicatory hearings. Gaines, Decisionmaking Procedure at the Environmental Protection Agency, 62 Iowa L.Rev. 839, 893, 894, 896 n. 287 (1977). If a substantial proportion of the applicants had elected to litigate, the entire permit program would have become hopelessly bogged down before the agency and the courts of appeals, regardless of whether the adjudication provisions of the APA apply.
. 40 C.F.R. § 125.36(n)(12),
. The availability of a state remedy is in dispute. In the view we take of the case, it is unnecessary to resolve that dispute.
. There the West Virginia Department of Natural Resources had certified the discharge permit for only two years, until July 1976, because of its concern that iron discharges from the company’s mine might exceed the levels allowed by the applicable water quality standards and, after July 1, 1977, by § 301(b)(1)(C) of the FWPCA. The issue, accordingly, concerned only the duration of an NPDES permit, not one of the conditions or limitations upon the permittee’s discharges. Compare 40 C.F.R. § 125.22 with 40 C.F.R. § 125.25.
In view of what is arguably a conflict between our views and those of the Fourth Circuit in the Consolidation Coal case, the portions of this opinion relevant to our holding have been circulated among all judges of this court in regular active service. No judge favored a rehearing in banc with respect to that holding.
. While the APA is not an independent source of jurisdiction, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), 28 U.S.C. § 1331(a) confers jurisdiction over actions such as this without regard to the amount in controversy. See 430 U.S. at 105, 97 S.Ct. at 984. Cf. Bethlehem Steel Corp. v. EPA, 538 F.2d 513 (2d Cir. 1976).
. The permit limitations are:
Daily Average Daily Maximum
(In lbs.l (In lbs.l
Ammonia 2,150 4,300
Cyanide 109.5 219
Phenol 25.76 51.52
Chloride 40,023 80,046
Fluoride 2,778 5,556
Sulphate 95,660 191,320
These limitations are applied on a net basis.
. EPA contends that there are several available technologies which, used alone or in combination, would probably enable U.S. Steel to comply with the waste load allocations. These include alkaline chlorination, activated carbon adsorption, incineration (i. e., coke quenching or dry slag cooling), deep well injection, ferroferri cyanide removal, air or steam stripping, blowdown reductions, or discharge into an expanded Gary sewage treatment plant.
. See, e. g., Leg. Hist., at 145, 246, 353, 379, 524, 1232-1233, and 1461-1462. (All citations to the legislative history are to “A Legislative • History of the Water Pollution Control Act Amendments of 1972,” prepared by the Environmental Policy Division of the Congressional Research Service of the Library of Congress (Comm. Print 1973).) Compare Union Electric Co. v. EPA, 427 U.S. 246, 263-268, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976).
. EPA’s concession here and in the proceeding below, that U.S. Steel may challenge the waste load allocations as not “necessary to meet water quality standards,” is apparently based on the opinion of its General Counsel that a § 401 certification is conclusive on the agency but a § 303(d) “Load Allocation Summary” is not, although the latter is “clearly entitled to weight in the Administrator’s decision.” Decision of the General Counsel No. 27, at 2 (Aug. 4, 1975). Compare, however, Decision of the General Counsel No. 44, at 5 (June 22, 1976), where the transcendent authority of § 301(b)(1)(C), even in the absence of certification, seems to be recognized.
. This appears under the heading, “It is Impossible to Comply with the Discharge Limitations for Ammonia, Phenol, Cyanide, Chloride, Sulfate and Fluoride.” If petitioner’s conclusory assertion in its reply brief that “the limitations for chloride, sulfate and fluoride were based on an erroneous interpretation of the Combinatorics study” was meant to raise this issue specifically, it came too late. American Meat Inst. v. EPA, supra, 526 F.2d at 462 n. 44.
. Instead of the full record, EPA filed a certified list as provided in Circuit Rule 16(b). That rule gave U.S. Steel the right, which it did not exercise, to have the whole record sent up. The appendixes contain only limited excerpts from the record.
. In view of EPA’s concession, however, and the fact that this is our first opportunity to review an NPDES permit, we have examined those parts of the record before us that bear on the necessity issue. That examination is briefly reported in an unpublished order filed simultaneously with this opinion.
. The limitations are different for the lake and the river, varying seasonally for each body of water. Discharges into the Grand Calumet River may not cause waters adjacent to the discharge to exceed 60 °F from October through March, or 90 °F during the six spring and summer months. Comparable limitations for the lake are the lower of existing temperature plus 3°F or 45 °F during January-March, 50 “F in December, 55°F in April, 60°F during May and November, 65°F in October, 70°F in June, and 80 °F during July-September.
. U.S. Steel argues that these limitations are water quality standards and not effluent limitations. This semantic argument is without merit. Inasmuch as “heat” is defined as a pollutant in § 502(6) of the Act, § 301(a) renders any “discharge” of heat unlawful unless performed in compliance with the Act. It is clear from § 303(d)(1)(B) that Congress thought it had enacted “controls on thermal discharges” under § 301(b). The term “effluent limitations,” defined in § 502(11) of the Act, therefore includes restrictions on discharges of heat or, as § 316(a) itself expresses it, “controljs] of the thermal component of any discharge.” The regulations note that limitations on heat are “not appropriately expressed by weight,” 40 C.F.R. § 124.43, but they must be expressed in some fashion. Because of the convenience of temperature limits, thermal water quality standards do not need to be “translated” in order to become applicable to an individual discharger as effluent limitations. See the review of the Act authored by EPA’s former General Counsel, R. Zener, “The Federal Law of Water Pollution Control,” Federal Environmental Law 682, 693 (E. Dolgin and T. Guilbert, ed. 1974).
Bethlehem Steel Corp. v. EPA, 538 F.2d 513 (2d Cir. 1976), is not contrary. The court there simply held that not all “water quality standards” are “effluent limitations,” and that it therefore lacked jurisdiction under § 509 of the Act to review EPA’s approval of New York State’s revised water quality standards. Nothing in that opinion implies that water quality standards cannot become effluent limitations, once they are applied to an individual discharger by inclusion in an NPDES permit.
. The company also argues that the unreliability of temperature limitations makes it inappropriate to levy criminal sanctions for violations of this part of the permit. Inasmuch as there are no criminal sanctions before us, we have no occasion to decide that issue.
. In view of our ruling that U.S. Steel’s substantive claims regarding the thermal limitations cannot be presented in this proceeding, the company suffered no prejudice from the Administrator’s ruling that it had waived its right to an adjudicatory hearing on the propriety of the thermal limitations by failing to propose its own alternative thermal limitations.
. In its reply brief U.S. Steel objects to requiring this demonstration before the validity of the thermal limitations is determined, pointing out that Congress apparently contemplated that the thermal discharge demonstration would be made prior to the issuance of an NPDES permit. See Leg. Hist., at 263-264. Despite the lateness of this claim, we observe that, in effect, U.S. Steel was given this opportunity, inasmuch as the original permit required the company to make its showing before the thermal limitations become effective on July 1, 1977.
. Although we conclude we were not required to do so, we have in this, our first, permit review, examined those limitations to which U.S. Steel objected before the Regional Administrator, in the light of the Regional Administrator’s decision and the other parts of the record that the appendixes have brought before us. Our conclusion from this examination is that the technology-based permit limitations are on the whole amply supported by the evidence and are a reasonable exercise of the Administrator’s authority under the Act. A summary of the analysis on which this conclusion is based appears in the unpublished order filed with this opinion.
. Nearly 500 samples were taken from each of two process-water outfalls and over 200 from each of two others. At each of the other 15 outfalls approximately 100 samples were taken. The measurements taken at these outfalls were used to calculate two different values: a daily average (computed by dividing the total discharge by weight in a month by the number of days that month on which measurements were taken) and a daily maximum (the total discharge by weight in any one calendar day).
. They would also allow discharges on a regular basis far in excess of those that have been normal in the past, even though EPA has not acknowledged the inevitability of such “excursions” or computed the likelihood or frequency of their occurrence at Gary Works. Compare FMC Corp. v. Train, 539 F.2d 973, 985-986 (4th Cir. 1976). Nor has U. S. Steel made a showing as to a reasonable “excursion” frequency, if any, at Gary Works.
. As McDermott testified, although the “first flush” from a major rainfall adversely affects the performance of the pressure filters by sharply increasing the volume of water passing through them, the lagoons and clarifiers, which retain water for a greater length of time, are essentially unaffected by such a storm.
. Although Congress contemplated that EPA would first issue § 304 guidelines and then follow with § 301 effluent limitations, time pressures forced the agency to combine the two stages. See duPont v. Train, supra, 430 U.S. at 122-125, 97 S.Ct. at 972-973. In this case the Phase I Iron and Steel Guidelines for the Blast Furnace (Iron) Subcategory, 40 C.F.R. § 420.40, et seq., subpart D of part 420, represent EPA’s § 304(b) BPT determinations and its § 301 effluent limitations.
. U. S. Steel also complains that it was improper to issue the NPDES permit without holding a hearing pursuant to § 302. That claim, however, is premised on its belief that blast-furnace recycling is not BPT. In view of our conclusion below that it is, we need not address U. S. Steel’s claim for a § 302 hearing. Perforce neither do we consider EPA’s response that, whatever our ruling on recycling, § 302 is only triggered if limitations more stringent than those required under the § 302(b)(2) directive that the “best available technology economically achievable” be in place by July 1, 1983 are to be applied in order to attain “a balanced population” of aquatic life. See § 302(c).
. As the Fourth Circuit noted in its opinion in the duPont case, 541 F.2d 1018 at 1028.
. See, e. g., 40 C.F.R. § 420.42. Persons other than the discharger could also seek a variance, and the limitations in an NPDES permit could be either more or less stringent than those in the guidelines. Cf. Natural Resources Defense Council, Inc. v. EPA, 537 F.2d 642 (2d Cir. 1976).
. The Third Circuit reviewed these materials in some detail in its AISI (I) decision. See particularly 526 F.2d at 1047-1055.
. Recycling itself also reduces the level of certain pollutants in the waste water. The Development Document notes that a “loss of phenol is inherent in the operation of a recycle system,” apparently due to the lowered water temperature in the cooling tower. EPA witness Dr. Bramer also observed that, unless the pH is allowed to rise above 8, some loss of cyanide may also occur in the cooling tower. Documents filed with • U. S. Steel’s renewed stay request also support this point. Indeed, the guidelines set effluent limitations for ammonia, cyanide, and phenol attainable simply by installing blast-furnace recycling. The fallout of these chemicals may, however, result in the build-up of solids, or scaling, in the cooling tower, thereby reducing the efficiency of the recycling system itself.
. Spyropoulos also testified that recycling systems are presently in operation at the Inland and Interlake Steel plants in Chicago, and, apparently, are on order for the Republic Steel plant in Canton, Ohio, and the Wheeling-Pittsburgh Steel plant at Steubenville North, Ohio. The State of Illinois, in a brief as amicus curiae, points out that, in addition to these plants, recycling is in use at U. S. Steel’s own Waukegan Works, and at Republic Steel’s South Chicago Mill and Youngstown Sheet & Tube Company’s East Chicago Mill.
. TSS discharges can be reduced by up to 95 percent through the use of recycling. Under the permit, TSS discharges from the Gary Works would be reduced from the present 29,-000 to 1,688 pounds per day, or just over 94 percent. This reduction would be achieved at a capital cost of roughly $8.6 million, less than 3.5 percent of the $246 million capital replacement cost of the Gary Works facility. The operating cost of the system would be about $6,000 a day.
. The extent of this increase is not clear from the record. At oral argument counsel for U. S. Steel stated that recycling would generate only 200 additional pounds of sulphate each day. Unless counsel misspoke, this issue appears trivial, inasmuch as this figure is less than one quarter of one percent of the daily average limitation on sulphate discharges from the plant. In view of the vigor with which the company has pressed this argument, we assume that larger sulphate discharges are involved and treat the argument on its merits.
. Even if they were, the 1972 Amendments to the FWPCA were not intended to allow an increase in the level of pollutants discharged. See, e. g., the language in § 303(c)(2), stating that one of the purposes of revised water quality standards is to “enhance the quality of water,” and 40 C.F.R. § 130.17, regarding the emphasis upon nondegradation of existing water quality. See also Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pursuit of Clean Air and Clean Water, 62 Iowa L. Rev. 643 (1977). Cf. Sierra Club v. EPA, 176 U.S.App.D.C. 335, 540 F.2d 1114 (1976), cert. granted, sub. nom. Montana Power Co. v. EPA,-U.S.-, 97 S.Ct. 1597, 51 L.Ed.2d 802 (1977), and City of Highland Park v. Train, 519 F.2d 681 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976).
. A variation of this argument is considered infra, Part IV, E, with respect to U. S. Steel’s contention that the compliance schedules in the permit are arbitrary.
. Our interpretation of this Act is “guided by” the Supreme Court’s interpretation of the analogous Clean Air Act. See American Meat Inst. v. EPA, supra, 526 F.2d at 449-450.
. H.R. 11896, proposed § 301(b)(5).
. This holding implicitly disposes of U. S. Steel’s most recently filed motion for a stay of the interim limitations at outfall #017.
. 40 C.F.R. § 401.1 l(p) defines “blowdown.”
. Although paragraphs 12 and 22 of the permit apparently contemplate modification only in the direction of greater stringency, EPA is certainly not foreclosed from temporarily adjusting permit limitations to accommodate a situation such as that described in the text. Alternatively, U.S. Steel may seek a new permit, as is provided in the regulations concerning “facility expansions, production increases, or process modifications which result in new or increased discharges of pollutants . . .” 40 C.F.R. § 125.22(a)(1).
. In fact the guidelines reflect such a determination, based on recycling flows somewhat higher than those proposed for the Gary Works, with respect to cyanide, phenol, and ammonia. See 40 C.F.R. § 420.42.
. EPA proposed a system combining neutralization, two-stage oxidation, clarification, pressure filters, and adsorption.
. In fact, EPA suggested at the remand hearing that TSS discharges eventually could be reduced to 141 lbs. daily average and 211 lbs. daily maximum, by reducing blowdown to the 125 gal/ton rate discussed in the Development Document for Phase I guidelines and approved for new sources and, effective in 1983, for existing sources. See AISI v. EPA, supra, 526 F.2d at 1063.
. See note 24, supra.
. Representative Clausen’s discussion of § 316(b) describes it as applying to steam-electric generating plants, apparently excluding any other industry which employs cooling-water intake structures. Leg.Hist., at 264. That remark, however, follows closely his reference to such plants, as an example, when explaining why the special treatment of thermal discharges established by § 316(a) was appropriate. Leg.Hist., at 263. The legislative history is thus ambiguous at best.
. See Part IV, C, infra. See also § 104(t) of the Act, which requires the Administrator to study thermal discharges and to evaluate alternative methods of controlling them, in order to implement § 316.
. The twelve primarily cooling-water outfalls now monitored once every eight days will be monitored once a week. Three of the seven primarily process-water outfalls will be monitored on a daily basis, while the other four will remain at the present frequency of five times in eight days. A variety of pollutants will be monitored at each outfall, depending upon the composition of its present discharges.
. The permit limits U.S. Steel to its current discharges into the well, and requires continuous monitoring of flow, temperature, pH, and injection and annular pressure, as well as daily monitoring for chloride, chromium, sulphate, and dissolved (and total) iron discharges. The permit also requires U.S. Steel to submit maps, descriptions, and geologic and engineering data on the deep well, and to prepare an extensive report regarding waste-injection well disposals, in order to enable EPA to evaluate the company’s practices.
. Although U.S. Steel argued before the Regional Administrator that the specific permit conditions imposed on deep-well discharges were unreasonable, it has limited its challenge in this court to EPA’s authority to. regulate deep wells.
. This decision is distinguishable in any event. Inasmuch as GAF’s proposed injection disposal would not have violated any established effluent limitations or permit conditions, and therefore no enforcement action could have been brought under § 309, there was an alternative basis for the court’s judgment. In our case, of course, there is a permit condition regarding well disposal. Furthermore, EPA’s attempt to regulate GAF’s discharges was not part of an overall effort to limit surface discharges. Finally, as the district court itself pointed out, GAF had obtained a permit for the proposed discharges from the Texas Water Quality Board. Compare United States v. Arnaco Steel Corp., 333 F.Supp. 1073 (S.D.Tex. 1971).
. This interpretation accords with that of EPA’s General Counsel. See, e. g., Decision of the General Counsel No. 6 (April 8, 1975). For another discussion of this issue see Wilson, Ground Waters: Are They Beneath the Reach of the Federal Water Pollution Control Act Amendments?" 5 Environmental Affairs 545 (1976). See also H.R.Rep.No. 93-1185, 93d Cong., 2d Sess. (1974); U.S.Code Cong. & Admin.News 1974, p. 6454, stating that one reason for adopting the Safe Drinking Water Act, 88 Stat. 1660 (1974), was that the FWPCA “may not authorize any regulation of deep well injection of wastes which is not carried out in conjunction with a discharge into navigable waters.” Id. at 4; U.S.Code Cong. & Admin. News 1974, p. 6457.
In its brief, U.S. Steel argues that there is no jurisdiction under FWPCA to regulate deep wells that do not discharge into navigable waters and points to “unrefuted testimony at the adjudicatory hearing” that its deep well injection “is into ground waters which do not connect into or otherwise affect surface waters.” EPA, however, was not bound by this testimony and could have properly concluded that too little is known about the effects of discharges into ground waters to justify allowing increases in them. As to the company’s legal argument, see the analysis of the statute and the legislative history in the text, infra.
. There are two conditions to this exception: (1) approval by the state and (2) a determination, also by the state, that the disposal “will not result in the degradation of ground or surface water resources.”
. The Senate bill was eventually enacted into law. It was accompanied by S.Rep.No.92-414, 92nd Cong., 1st Sess. (1971); U.S.Code Cong. & Admin.News 1972, p. 3668.
. Leg. Hist., at 275. Representative Kemp also stated that, notwithstanding this coverage, he still planned to press for his own bill, “which would more comprehensively control the subsurface injection of wastes.” Leg. Hist., at 275.
. Leg. Hist., at 818. This is H.Rep.No.92-911, 92d Cong., 2d Sess. (1972), which accompanied the House bill, H.R. 11896.
. In fact, even that legislative history on which U.S. Steel and the GAF court chiefly rely supports our interpretation of the Act. U.S. Steel urges that the rejection by the House of an amendment which would have established extensive federal regulation of ground waters demonstrates that EPA lacks authority over the waste-injection well. Representative Aspin’s proposed amendment, however, had two purposes: in addition to establishing federal regulatory authority over all ground waters, it would have deleted the exception for oil-and-gas-related injections contained in § 502(6). The debate on this amendment clearly demonstrates that it was intended to
“eliminate the inconsistency between the way we treat oil companies in this bill and the way we treat other companies. Oil companies and other industries can pollute ground water, through the operation of what are called ‘waste injection wells.’ . . . The steel industry sinks wells into the ground to get rid of waste. The oil industry does it . . . [Yet] waste injection wells of the steel industry are covered. The waste injection wells of every industry except oil are covered.” (Emphasis supplied.) Remarks of Rep. Aspin, Leg. Hist., at 589-590.
The significance of this “exception” becomes clear when one realizes that 99 percent of all domestic waste-injection wells are oil industry wells. Leg. Hist., at 590. Representative Roberts explained his opposition to the amendment by pointing out that “we have more stringent regulations now on the oil industry than we could ever impose through this legislation.” Thus, although the steel companies “come under the regulations” as Representative Aspin noted, the oil industry is “already . . . regulated in a similar fashion . . . .” Leg. Hist., at 593. The House debate on the amendment, therefore, confirms our conclusion that the Act contemplates state and federal restrictions on waste disposals into wells.
. Schedules are established concerning the thermal limitations, the deep well, the plant-wide weight limits on the discharges of six chemicals into the Grand Calumet River, the elimination of all discharges other than non-contact cooling water from outfalls ##021 and 033, and the specified effluent limitations set for eight other outfalls, # # 007, 015, 017, 018, 034, 037, 038, and 039.
. At least with respect to dates that had already passed before the effective date of the permit, no successful criminal proceeding could be brought under § 309(c), for lack of the requisite mental state.
. U.S. Steel’s other claims of arbitrariness, viz., impossibility of compliance and improper effluent limitations underlying the schedules, merely repeat arguments rejected earlier in this opinion or refuted by our examination in the order of the limitations set for specific outfalls.
. Unless Congress amends the statute, as it may do this year. See National Commission on Water Quality, Report to Congress 15-17 (1976), and Comptroller General, Implementing the National Water Pollution Control Permit Program: Progress and Problems (February 1976) .
. U.S. Steel relies upon an unreported ruling by the Second Circuit, which stayed the enforceability of certain effluent limitations and guidelines (subparts B and C of 40 C.F.R. part 409) for over a year. That was, however, simply an order granting a stay pending oral argument. The court’s final decision in the case did not even mention the stay. California & Hawaiian Sugar Co. v. EPA, 553 F.2d 280 (2d Cir. 1977) . In any event, we prefer the view of the Third Circuit.
. As the Supreme Court observed in connection with the Clean Air Act, see Union Electric Co. v. EPA, supra, 427 U.S. at 268, 96 S.Ct. 2518, § 309(a) gives the Administrator the option of issuing a compliance order rather than instituting civil or criminal enforcement proceedings. See also Bethlehem Steel Corp. v. Train, supra, 544 F.2d at 659-660.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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ROSEN, District Judge.
This case involves a petition for review under Section 509(b)(1) of the Clean Water Act, 33 U.S.C. § 1369(b)(1). Petitioners ask this Court to review the Environmental Protection Agency’s (“EPA”) approval of the Clean Water Act Section 304(1) individual control strategy (“ICS”) issued by the Commonwealth of Kentucky’s Natural Resources and Environmental Protection Cabinet (the “Kentucky Cabinet”) for Jamestown, Kentucky’s wastewater treatment plant and Big Lily Creek, a tributary of Lake Cumberland.
The ICS for the Jamestown wastewater treatment plant proposes to eliminate the wastewater plant’s discharge of copper pollutants into Big Lily Creek by diverting the plant’s discharge point via a pipeline that will carry the toxic effluents to the main body of Lake Cumberland where they will be diffused into that larger body of water. The EPA approved this individual control strategy in February 1990, and it is the EPA’s approval of the ICS that Petitioners seek to overturn in this action.
Because we find that EPA approval does not constitute “promulgation” of an ICS within the meaning of 33 U.S.C. § 1369(b)(1)(G), we hold that this Court does not have jurisdiction over this case and, therefore, the petition must be dismissed.
I. THE CLEAN WATER ACT
The Clean Water Act, 33 U.S.C. § 1251, et seq. (the “CWA”), prohibits the discharge of pollutants into designated waters unless the discharger complies with the Act’s specific requirements. Dischargers may achieve compliance with the CWA by obtaining and adhering to the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit. The EPA issues NPDES permits directly and also allows states to issue such permits, subject to approval by the EPA. In Kentucky, the National Resources and Environmental Protection Cabinet (the “Kentucky Cabinet”) is the state agency authorized to issue NPDES permits.
In 1987, Congress enacted the Water Quality Act, which established § 304(Z) of the CWA. § 304(() of the CWA, 33 U.S.C. § 1314(0, as amended, pertains to bodies of water which, despite application of the Act’s other provisions, still were not expected to meet water quality standards due to toxic pollution. Section 304(0 requires every state to develop lists of impaired waters, to identify the point sources and the amount of the pollutants causing toxic impact, and to develop an individual control strategy (“ICS”) for each point source. The states submit the lists and ICSs to the EPA, and the EPA then either approves or disapproves them. Once the EPA approves an ICS, the state may then issue an NPDES permit.
As the foregoing discussion indicates, Congress intended that the states play a leading role in clean water enforcement. In fact, the explicitly declared policy of the Clean Water Act itself provides that, as between the states and the federal government, the states are the principal actors in the abatement of water pollution:
It is the policy of Congress to recognize, preserve and protect the primary responsibilities and rights of States to prevent, reduce and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.
33 U.S.C. § 1251(b).
II. FACTUAL BACKGROUND
The city of Jamestown, Kentucky, owns and operates the Russell County Regional Wastewater Treatment Plant. The plant handles wastewater from the Union Underwear Company textile manufacturing plant, which discharges high volumes of copper pollutants. The Russell County plant discharges its treated wastewater, including water from the Union Underwear Company, into Big Lily Creek.
As required by Section 304(i), in February of 1989, the Kentucky Cabinet submitted two lists to EPA: (1) a list of water body segments in Kentucky which have impaired water quality and the pollutant causing the impairment (the “ ‘B’ list”) and (2) a list of the point sources causing the impairments along with the amount of the pollutants identified on the B list that each point source discharged to each listed wa-terbody segment (the “ ‘C’ list”). The Cabinet also submitted a proposed individual control strategy for each source which was to reduce the discharge of the identified pollutants to the waterbody segments identified on the “B” list.
The Kentucky “B” list identified Big Lily Creek (a tributary of Lake Cumberland) as a waterbody segment impaired by the presence of copper. The “C” list identified the Jamestown/Russell County Publicly-Owned Wastewater Treatment Works (the “Jamestown POTW” or “JPOTW”) as the responsible “point source” discharging 1.12 pounds per day of copper into Big Lily' Creek.
The ICS for the Jamestown POTW was submitted to the EPA by the Kentucky Cabinet in the form of a draft KPDES permit to the City of Jamestown which provided for the elimination of the JPOTW’s discharge of copper into Big Lily Creek by upgrading the water treatment plant, prohibiting industries that discharge into the plant from discharging pollutants, and relocating the JPOTW discharge point from Big Lily Creek to the main body of Lake Cumberland.
The EPA approved the Kentucky Cabinet’s Section 304(i) lists and the initial draft of the KPDES permit, and after the close of the published period for input and comment on the draft KPDES — during which time two public hearings were held— the Kentucky Cabinet issued its final KPDES permit to the City. The EPA informed the Kentucky Cabinet by letter dated February 6, 1990 that the final KPDES permit for the Jamestown POTW was an acceptable individual control strategy.
On February 20, 1990, the EPA published notice of its final approval and disapproval of individual control strategies for Kentucky. The ICS for the Jamestown POTW was among those approved by the EPA. On September 25, 1990, Petitioners filed the instant Petition for Review, asking this Court to review and overrule the EPA’s approval of the Jamestown POTW ICS.
The EPA and the City of Jamestown filed motions to dismiss this Petition for lack of jurisdiction on the grounds that the Clean Water Act does not provide for federal judicial review of EPA approvals of state-developed ICS’s.
III. DISCUSSION
Section 509(b)(1) of the CWA, 33 U.S.C. § 1369(b)(1), sets forth the provisions regarding review of EPA actions. Subsection (G) of that section provides in pertinent part:
Review of the [EPA] Administrator’s action ... in promulgating any individual control strategy under section 1314(1) of this title [section 304(1) of the CWA] may be had by any interested person in the Circuit Court of Appeals of the United States for the judicial district in which such person resides or transacts business ... upon application by such person....
33 U.S.C. § 1369(b)(1)(G).
The EPA and the Intervenors’ position in this case is that EPA approvals of state-issued individual control strategies are not “promulgations” within the meaning of Section 509(b)(1)(G). They contend that only EPA-issued ICSs are reviewable under this section. The Courts of Appeals of four circuits — the Third, Fourth, Seventh and Ninth Circuits — have directly addressed this issue and all four of them agree with the EPA and Intervenors: The federal Circuit Courts of Appeals do not have jurisdiction to review EPA approvals of state-issued ICSs. The Fifth Circuit has also reached the same conclusion in a case involving the issue of state-issued versus EPA-issued NPDESs.
As noted supra, one of the explicitly stated policies of the Clean Water Act is to “recognize, preserve, and protect the primary responsibilities and rights of States” in the restoration and maintenance of their waters and in application of the Act. See, 33 U.S.C. § 1251(b). As the Ninth Circuit observed in Boise Cascade Corp. v. U.S. E.P.A., 942 F.2d 1427 (9th Cir.1991), this policy is further evident in the requirements of Section 304(1) added by the Water Quality Act of 1987, that the states identify navigable waters affected by toxic pollutants and develop strategies for cleaning them. 942 F.2d at 1429.
The federal-state relationship established by the Act is also illustrated in Congress’ goal of encouraging states to “assume the major role in the operation of the NPDES program.” Id. at 1430, quoting, Shell Oil Co. v. Train, 585 F.2d 408, 410 (9th Cir.1978). See also, 33 U.S.C. § 1342(b), (d) (authorizing the Administrator of the EPA to delegate to individual states the authority to issue NPDES permits themselves, subject to EPA objection.) When a state has been granted such authority, the EPA must suspend its own authority to issue permits until the Administrator determines that the state is no longer capable of issuing permits and notifies the state that the state’s authority to do so is being withdrawn. Boise Cascade, supra, 942 F.2d at 1430. The result is “a system for mandatory approval of a conforming State program [which] creates a separate and independent State authority to administer the NPDES pollution control.” Id., quoting, Shell Oil Co. v. Train, supra, 585 F.2d at 410.
Turning then to the decisions of the four Circuits that have specifically held that they have no jurisdiction to review EPA approvals of state-issued ICSs, in Boise Cascade, supra, a coalition of citizens groups filed a Petition for Review in the Ninth Circuit Court of Appeals of the EPA’s approval of an NPDES issued by the State of California and submitted to the EPA as California’s ICS for storm-drain discharge into San Francisco Bay. The EPA argued — just as it does in this case— that the court did not have jurisdiction to review its approval of the California [and Oregon] ICSs because such approval does not constitute “promulgation”.
In reaching its decision in Boise Cascade, the Ninth Circuit analyzed the review provisions of the Clean Water Act:
Section 1369(b)(1) specifically grants courts of appeals jurisdiction to review only certain EPA actions taken with respect to each of the requirements of the Act. The section distinguishes between EPA approvals, determinations and promulgations. Such specificity demonstrates that Congress did not intend court of appeals jurisdiction over all EPA actions taken pursuant to the Act. See Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 517 (2d Cir.1976) (“[t]he complexity and specificity of section [1369(b)(1)] in identifying what actions of EPA under the [Clean Water Act] would be reviewable in the courts of appeals suggests that not all such actions are so reviewable.”)
Under accepted canons of statutory interpretation, we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous. See Sutherland Stat.Const. §§ 46.05, 46.04 (4th ed. 1984); see also Aluminum Co. of America v. Bonneville Power Admin., 891 F.2d 748, 755 (9th Cir.1989). We must presume that words used more than once in the same statute have the same meaning. See Sutherland § 46.06.
We hold that for purposes of section 1369(b)(1), “promulgation” is not the same as “approval. ” The difference between subsection (G) and subsection (E), which provides for review of EPA decisions “approving or promulgating” effluent limitations, 33 U.S.C. § 1369(b)(1)(E), compels this conclusion. See United Technologies Corp. v. OSHA, 836 F.2d 52, 53 (2d Cir.1987) (The use of different words in the same sentence of a statute signals that Congress intended to distinguish between them.). To fail to distinguish between “promulgation” and “approval” would either result in a conflict between subsections (E) and (G) or would make superfluous the use of “approval” in subsection (E). We conclude, therefore, that Congress did not consider EPA approval of ICSs to be “promulgation” for the purpose of judicial review pursuant to subsection (G).
942 F.2d at 1431-1432 (emphasis added).
The Seventh Circuit reached the same conclusion in Roll Coater, Inc. v. Reilly, 932 F.2d 668 (7th Cir.1991):
Subsection (E) authorizes review of a decision “approving or promulgating any effluent limitation” under certain sections, the very distinction the EPA asks us to draw under subsection (G). Other subsections reinforce this reading. Subsections (B) and (D) create jurisdiction to review “any determination pursuant to” a named statute. Three more subsections — (A) and (C), in addition to (G)— limit review to the EPA’s “promulgating” something. Subsection (A) refers to a “standard of performance” under § 306, 33 U.S.C. § 1316, and subsection (C) to an “effluent standard, prohibition, or pretreatment standard” under § 307, 33 U.S.C. § 1317. All of the items in (A) and (C) are things the Administrator does on his own. Subsections (B) and (D) treat “determinations” as something different from promulgation, implying that the EPA does not “promulgate” everything it issues or approves.
932 F.2d at 670.
The most recent decision on this issue is the Third Circuit’s September 12, 1991 decision in Municipal Authority of the Borough of St. Marys v. U.S.E.P.A., 945 F.2d 67 (3rd Cir.1991). In deciding that case, the St. Marys court relied on Roll Coater, supra, on the Fourth Circuit’s decision in P.H. Glatfelter Co. v. U.S. E.P.A., 921 F.2d 516 (4th Cir.1990), and on the state versus federal mandates of the Clean Water Act. As in this case, the EPA argued in St. Marys that the court of appeals had no jurisdiction over the petition for review of the EPA’s approval of an ICS issued by the Pennsylvania Department of Natural Resources for the St. Marys water treatment plant because the ICS was “promulgated” by the state agency rather than by EPA.
The St. Marys petitioners argued that there was no functional difference between the EPA’s approval of state-issued NPDES and the EPA’s own issuance of an NPDES and, therefore, Section 509(b)(1)(G) of the CWA, 33 U.S.C. § 1369(b)(1)(G), should be read as providing for review of a final decision on an ICS which includes EPA’s approval of an ICS set forth in a state-issued NPDES permit. Although the Fourth Circuit noted that “there is plausibly some internal logic to this argument,” it held that the argument failed because it found that “[t]he unique state-federal interplay prescribed by [the CWA]” established Congress’ intent “to emphasize the ultimate primacy of the state’s role.” 945 F.2d at 72.
We agree with the reasoning of our colleagues of the Third, Fourth, Seventh and Ninth Circuits and hold that the EPA’s decision to approve a state-issued individual control strategy — such as the ICS issued by the Kentucky Cabinet in this case — is not an EPA “promulgation” within the meaning of Clean Water Act Section 509(b)(1)(G). Accordingly, we determine that we are without jurisdiction to hear Petitioners’ petition for review.
IV. CONCLUSION
Having determined that the ICS issued by the Kentucky Cabinet is not an EPA “promulgation” and having, therefore, further found that this Court lacks jurisdiction to hear the instant petition for review, this action is hereby DISMISSED.
ORDER
April 10, 1992.
The Commonwealth of Kentucky, National Resources and Environmental Protection Cabinet (“Cabinet”), intervenor in the above-captioned matter, has filed a petition for rehearing with this Court. The Cabinet argues that the opinion filed in this matter on January 27, 1992 contains a statement which incorrectly interprets a Cabinet administrative regulation, 401 KAR 5:029, Section 5 (1985, 1990). The statement, located at page 1220 n. 4, reads: “Water quality standards for protection of aquatic life do not apply within the mixing zone but rather must be met at the edge of the MZ [mixing zone].”
Upon review, we find that the quoted statement does misconstrue the Cabinet’s regulation, which provides for water quality standards both within and at the edge of the mixing zone. Because the sentence is unnecessary to the Court’s decision on the merits, we hereby grant the Cabinet’s request that the language be deleted from the opinion.
It is therefore ORDERED that the Lake Cumberland opinion be modified to delete the above language. [Editor’s Note: Deletion made for publication of the opinion.]
. Being state issued permits, Kentucky’s permits are colloquially referred to as "KPDES” permits instead of NPDES permits.
. Subsection 1 of Section 304(/) of the CWA, as amended, provides as follows:
(Z) Individual control strategies for toxic pollutants
(1) State list of navigable waters and development of strategies
Not later than 2 years after February 4, 1987, each State shall submit to the Administrator for review, approval, and implementation under this subsection—
(A) a list of those waters within the State which after the application of effluent limitations required under section 1311(b)(2) of this title cannot reasonably be anticipated to attain or maintain (i) water quality standards for such waters reviewed, revised, or adopted in accordance with section 1313(c)(2)(B) of this title, due to toxic pollutants, or (ii) that water quality which shall assure protection of public health, public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced population of shell fish, fish and wildlife, and allow recreational activities in and on the water;
(B) a list of all navigable waters in such State for which the State does not expect the applicable standard under section 1313 of this title will be achieved after the requirements of sections 1311(b), 1316, and 1317(b) of this title are met, due entirely or substantially to discharges from point sources of any toxic pollutants listed pursuant to section 1317(a) of this title;
(C) for each segment of navigable water included on such lists, a determination of the specific point sources discharging any such toxic pollutant which is believed to be preventing or impairing such water quality and the amount of each such toxic pollutant discharged by each such source; and
(D) for each such segment, an individual control strategy which the State determines will produce a reduction in the discharge of toxic pollutants from point sources identified by the State under this paragraph through the establishment of effluent limitations under section 1342 of this title and water quality standards under section 1313(c)(2)(B) of this title, which reduction is sufficient, in combination with existing controls on point and nonpoint sources of pollution, to achieve the applicable water quality standard as soon as possible, but not later than 3 years after the date of the establishment of such strategy.
The "lists” of impaired waters and point sources discharging toxic pollutants which the states were required to submit to the EPA by February 1989 are colloquially referred to by the letter subsection of the statute, i.e., the "A” list, the "B” list, the "C” list, etc.
. ICSs are frequently submitted by the states in the form of "draft NPDESs”, which, in fact, was the form of the ICS submitted by Kentucky that is at issue in this case.
. Lake Cumberland is an Army Corps of Engineers flood control and hydropower project formed in 1951 by Wolf Creek Dam on the Cumberland River. The ICS proposed relocating the Jamestown POTW discharge point by use of an overland pipeline to transport the wastewater plant’s effluent to a submerged point within the main body of Lake Cumberland to which a diffuser would be attached to disperse the copper pollutants rapidly so that they would not harm aquatic life or affect the recreational use of the Lake and maintain acceptable water quality standards outside of the "mixing zone (MZ)”. (A mixing zone is the zone in a body of water where wastewater and receiving water mix. Kentucky has had an EPA-approved mixing zone regulation in effect since 1985.) The Army Corps of Engineers performed an Environmental Assessment pursuant to the National Environmental Policy Act which examined the effects of the POTW discharge under the KPDES on water quality in and downstream of Lake Cumberland. The Army Corps found that "All water quality standards will be met outside of the initial mixing zone.”
.In addition to challenging the EPA’s approval of the ICS in this Court, Petitioners are appealing the Kentucky Cabinet’s issuance of the KPDES in a state administrative appeal proceeding. Petitioners have also filed a Citizen’s Suit under 33 U.S.C. § 1365 in the federal district court for the Western District of Kentucky based on alleged ongoing violations of the Clean Water Act by the Jamestown wastewater treatment plant. In a fourth action, construction to update the plant has been enjoined by the federal district court while the court determines whether the City of Jamestown failed to assess the environmental impact of the water treatment plant’s discharge.
. See, Municipal Authority of the Borough of St. Marys v. U.S. E.P.A., 945 F.2d 67 (3rd Cir.1991); P.H. Glatfelter Co. v. U.S. E.P.A., 921 F.2d 516 (4th Cir.1990); Roll Coater, Inc. v. Reilly, 932 F.2d 668 (7th Cir.1991); and Boise Cascade Corp. v. U.S. E.P.A., 942 F.2d 1427 (9th Cir.1991).
. See, Save the Bay v. Administrator of E.P.A., 556 F.2d 1282 (5th Cir.1977). Just as Section 509(b)(1)(G) of the Clean Water Act provides for review of EPA-"promulgated” ICSs, Section 509(b)(1)(F) provides for review of the EPA’s "issuance” of, or “refusal to issue”, an NPDES permit.
. The California ICS review petition was consolidated for decision by the Ninth Circuit with another petition for review filed by two paper mills in Oregon who objected to an EPA-approved ICS which had been issued by the Oregon Department of Environmental Quality and which targeted the mills’ discharge of pollutants for clean-up.
. The full text of Section 1369(b)(1) is as follows:
Review of the Administrator’s action (A) in promulgating any standard of performance under section 1316 of this title, (b) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition or pretreatment standard under section 1317 of this title, (D) in making any determination a to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any permit under section 1342 of this title, and (G) in promulgating any individual control strategy under section 1314(1) of this title.
33 U.S.C. § 1369(b)(1).
. Petitioners here argue — -just as the Boise Cascade petitioners argued in that case — that Roll Coater should be distinguished because that case involved only the EPA’s conditional approval of a draft NPDES permit. They want this Court to believe that the Roll Coater's finding of lack of jurisdiction was based upon a determination that the conditional approval was not a "final decision” subject to judicial review.
As the Boise Cascade court noted in addressing this very argument in that case,
The Roll Coater court stated that "[u]ntil the state amends Roll Coater’s permit to incorporate the terms of the ICS, there is no review anywhere.” The court did not, however, suggest that once the EPA approved the final permit, jurisdiction in the federal appellate courts existed pursuant to section 1369(b). To the contrary, the court stated that once the state amended the permit “a state court may review the action, including all of the antecedent decisions about the content of the B and C lists.” Furthermore, the rationale underlying the Seventh Circuit’s interpretation of section 1369 is not based on the finality of the EPA's decisions, but on the distinction the statute draws between approval and promulgation and the fact that in the case of ICSs,. Congress intended federal courts to have jurisdiction only where the EPA itself promulgates the ICS.
942 F.2d at 1432-1433.
. In Glatfelter, the Fourth Circuit held that it lacked jurisdiction to consider a petition challenging the EPA’s conditional approval of a draft NPDES permit submitted by North Carolina as its ICS for a paper mill that was discharging dioxin in a waterway because the EPA had not promulgated the ICS. In reaching that decision, the court observed that when EPA disapproves a state-developed ICS or conditionally approves a state’s draft permit as an ICS, it may at any time thereafter notify the state that it intends to issue the ICS itself and that permit issuing authority has, therefore reverted to the EPA. However, as the Glatfelter court noted, it is only upon mailing of such a notification that such permit issuing authority passes to the EPA. Because the EPA did not notify North Carolina in writing that ICS issuing authority had reverted to the EPA, nor did it attempt to issue a final permit for the paper mill, the Fourth Circuit concluded that “the EPA had not promulgated anything.” 921 F.2d at 517-518.
.See also, Save the Bay v. Administrator of E.P.A., 556 F.2d 1282 (5th Cir.1977). In that case, the petitioner challenged the EPA’s failure to veto a state-issued permit which allegedly violated CWA standards. Because EPA’s failure to veto led indirectly to issuance of the state permit, the petitioner argued that § 509(b)(1)(F) conferred jurisdiction in the court of appeals. The Fifth Circuit rejected this argument, noting that the legislative history of the Act suggested that the Administrator's exercise of his "supervisory review" over proposed permits forwarded by the state programs is distinct from "issuance" of the permits, which is left to the states. Id. at 1291.
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SEYMOUR, Chief Judge.
Plaintiffs filed this action in federal district court seeking declaratory and injunctive relief with respect to the State of Colorado’s “Lynx Recovery Plan” (the Plan), which proposed to introduce Canadian lynx into Colorado. The complaint alleged that the Forest Service’s involvement with the Plan violated the Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A), because the Forest Service failed .to follow the environmental reporting requirements set forth in the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. In a thorough opinion, the district court granted the government’s motion to dismiss for lack of Article III standing, and alternatively because it held there was no “major Federal action” triggering the application of NEPA. Plaintiffs appeal and we affirm, albeit on different grounds.
On appeal, the government contends that we lack jurisdiction over this matter because the complaint fails to allege any final agency action, resulting in lack of standing to pursue a claim under the APA. We review questions of standing de novo. See Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.1998). When considering a motion to dismiss, we must construe the complaint in favor of the complaining party and'assume the truth of all factual allegations. See id. at 1204. Because we agree plaintiffs have failed to demonstrate APA standing, we do not reach the Article III standing issue. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (courts should avoid reaching constitutional issues when statutory determinations are decisive).
Because NEPA. does not provide for a private right of action, plaintiffs rely on the judicial review provisions of the APA in bringing their claims. See 5 U.S.C. § 702. The plaintiffs must therefore satisfy the- “statutory standing” requirements of the APA. Utah v. Babbitt, 137 F.3d at 1203. Specifically, they must establish that defendants took “final agency action for. which there is no other adequate remedy in court.” 5 U.S.C. § 704. See also id. § 702; Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
Whether federal conduct constitutes final agency action within the meaning of the APA is a legal question. See Utah v. Babbitt, 137 F.3d at 1207. The APA defines “agency action” as an “agency rule, order,' license,' sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Plaintiffs have the burden of identifying specific federal conduct and explaining how it is “final agency action” within the meaning of section 551(13). See National Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. 3177; Catron County v. U.S. Fish & Wildlife, 75 F.3d 1429, 1434 (10th Cir.1996). In order to determine if an agency action is final, we look to whether its impact is “direct and immediate,” Franklin v. Massachusetts, 505 U.S. 788, 796-97, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992); whether the action “mark[s] the consummation of the agency’s decisionmaking process,” Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); and whether the action is one by which “rights or obligations have been determined, or from which legal consequences will flow,” id.
The complaint alleges the following federal conduct for our review. It asserts that Colorado’s reintroduction of the Canadian lynx will occur on federal land managed by the Forest Service, see Complaint, ¶ 6, with “federal government consent,” id. at ¶ 9, and that the Plan was “agreed to, supported, and facilitated by” the Forest Service, id. at ¶ 11. Colorado allegedly worked with the Forest Service in formulating the Plan, and various federal agencies performed “significant and substantial work,” such as “conducting geographic analyses, funding other analyses, and actively participating in public meetings regarding the project.” Id. at ¶ 8.
Plaintiffs then contend that an agreement between the United States Department of the Interior and the State of Colorado concerning programs to manage Colorado’s declining native species constitutes final agency action. We disagree. This document is merely a general agreement for state and federal agencies to work together in the future on specific projects and as such is not “final agency action.” See National Wildlife Fed’n, 497 U.S. at 891-93 & n. 2, 110 S.Ct. 3177 (general land review program in place to guide future site-specific decisions not “final agency action”). Plaintiffs also contend a letter written from the Regional Forester pledging the Forest Service’s readiness to aid Colorado in implementing the Lynx Recovery Pían is final agency action. An agency’s intent to take action if requested does not constitute final agency action under section 551(13). See id. at 892, 110 S.Ct. 3177. Plaintiffs finally claim the Forest Service’s participation with Colorado in formulating the Plan constitutes final agency action. Neither the Complaint nor the plaintiffs’ brief tells us how rights and obligations are determined by, or how legal consequences flow from, the federal involvement in preparing Colorado’s Plan. Moreover, non-binding assistance such as conducting and funding anal-yses and participating in public meetings is not agency action for the same reason. See id.
Plaintiffs have failed to meet their burden of identifying a “final agency action” as defined in section 551(13) for us to review. They therefore lack the statutory standing required to bring this claim under the APA. See, e.g., Chemical Weapons Working Group, Inc. v. U.S. Dep’t of the Amy, 111 F.3d 1485, 1494 (10th Cir.1997) (dismissal for lack of APA standing was correct since plaintiffs failed to explain how agency conduct was “agency action” under section 551(13)).
For the foregoing reasons, we AFFIRM the decision of the district court dismissing plaintiffs complaint.
. We may affirm the district court on any ground supported by the record. Gowan v. U.S. Dep’t of the Air Force, 148 F.3d 1182, 1189 (10th Cir.1998).
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AMENDED OPINION
DOWD, Senior District Judge.
I. INTRODUCTION
The defendant-appellant Mark O. Henry (hereafter “Henry”) prosecutes two appeals growing out of his indictment and conviction for one count of conspiracy to violate 42 U.S.C. § 6928(d)(1) which prohibits the transport of hazardous waste to a facility that does not have a permit to receive such waste, one count of mail fraud and three counts of wire fraud.
Henry owned and operated Cash Energy, a corporation with offices in North Andover, Massachusetts. Cash Energy operated numerous affiliated businesses, including Beede Waste Oil (“Beede”), located primarily at Kelly Road in Plaistow, New Hampshire. Henry directed the affairs of both Cash Energy and Beede. Robert LaFlamme, an indicted co-conspirator who testified against Henry, managed Beede and oversaw its day-to-day operations.
Beede applied to the New Hampshire Department of Environmental Services (“NHDES”) in March 1990 for a permit to recycle virgin petroleum contaminated soil into cold mix asphalt. Virgin petroleum contaminated soil is soil contaminated with petroleum or petroleum products, petroleum sludge, and all liquid petroleum derived hydrocarbons, such as lubricating oil, heating oil, gasoline, kerosene, and diesel fuel. However, the definition excludes soil that is determined to be hazardous waste because it is contaminated with other chemicals or metals. Beede needed an NHDES permit because the recycling process emits air pollutants. The recycling process required the use of a “pug mill” to mix contaminated soil with gravel and asphalt emulsion. Beede eventually obtained the permit in July. However, the permit capped the amount of contaminated soil that could be stored at the site at 3,000 tons.
Beede entered into recycling contracts with several entities even before the permit was issued. Although the company sporadically recycled soil using a leased pug mill, the amount of contaminated soil stored at the site soon exceeded the permitted amount. Eventually, the amount of unrecycled soil grew to as much as 19,000 tons and at no time after May 1990 did Beede ever have less than 3,000 tons of soil at the site. By April 1991, Beede’s failure to comply with the permit caused the New Hampshire Air Resources Division to issue an administrative order prohibiting Beede from accepting any more contaminated soil. This order was superseded by a new permit issued in June 1991 that allowed Beede to begin receiving new soil only if it first recycled all of the soil that had accumulated at the site. Although Beede engaged in a small amount of soil recycling after the June 1991 permit was issued, it continued to receive new contaminated soil at the site in violation of the permit terms.
The mail and wire fraud counts charged that Henry participated in a scheme to defraud several of Beede’s customers of money by falsely representing that Beede could lawfully receive and recycle the customers’ virgin petroleum contaminated soil. The conspiracy count charged that Henry participated in a conspiracy to knowingly cause hazardous waste to be transported to a facility that was not permitted to receive such waste in violation of 42 U.S.C. § 6928(d)(1). The conspiracy charge involved three overt acts.
The grand jury returned a 17 count indictment against Henry and LaFlamme on March 2, 1995 charging conspiracy, mail fraud and wire fraud. Later, on January 5, 1996 a superceding indictment was returned limiting the counts to a single count of conspiracy, six counts of mail fraud and three counts of wire fraud. LaFlamme pleaded guilty to one count of mail fraud and the conspiracy count and subsequently testified for the government at Henry’s trial which was held over an eight day span in February of 1996.
The first appeal challenges his convictions and the resulting 37 month sentence; the second appeal contends that the district court should not have denied his motion for a new trial based on newly discovered evidence.
For the reasons that follow we affirm the convictions and sentence and the denial of Henry’s motion for a new trial.
II. THE CHALLENGED CONSPIRACY CONVICTION
A. The Challenged Jury Instructions on the Conspiracy Count.
The conspiracy count, charged under 18 U.S.C. § 371, alleged that Henry and LaFlamme conspired knowingly to transport and cause to be transported hazardous waste to a facility that did not have interim status and a permit to accept hazardous waste in violation of 42 U.S.C. § 6928(d)(l).
The indictment defined hazardous waste by reference to the substances and materials listed or identified in Title 40, Code of Federal Regulations, Part 261 and further alleged that under the regulation, “any waste containing concentrations of lead in excess of 5 parts per million or cadmium in excess of 1 part per million using appropriate test methods is a hazardous waste.”
■ The jury instructions relative to the conspiracy charge defined the offense of causing hazardous wastes to be transported to an unpermitted facility as requiring the following elements:
First, that the defendant transported or caused to be transported hazardous waste to a facility that was not authorized to receive such waste; and
Second, that the defendant knew that the material transported was hazardous and that the facility that received the waste was not authorized to receive such waste.
Then, over the defendant’s timely objection, the court defined hazardous waste as follows:
Solid waste qualifies as hazardous waste if using the toxicity characteristic leaching procedure, TCLP, extract from a representative sample of the solid waste contains lead in concentrations greater than five parts per million or cadmium in concentrations greater than one part per million.
(Emphasis added).
The appellant couples the challenge to the definition of hazardous waste with the claim that the trial court improperly participated in the direct examination of the government witness Michael Wimsatt, a regulatory inspector with NHDES in the hazardous waste program.
First, we observe that the court’s definitional instruction as to what constitutes hazardous waste was correct as a matter of law. The government bears the burden of establishing that the defendant knew that the materials transported constituted hazardous waste. The Congress has delegated to the Administrator of the EPA the responsibility for listing the types and characteristics of substances considered to be hazardous wastes. 42 U.S.C. § 6921(b). The ensuing regulation, found at 40 C.F.R. § 261.3, provides that soil is a hazardous waste if it “exhibits any of the characteristics of hazardous waste identified in Subpart C.” Subpart C includes the characteristic of “toxicity”. 40 C.F.R. § 261.24 introduces the Toxicity Characteristic Leaching Procedure (TCLP) as a means of testing for toxicity and provides that when this testing procedure shows that the waste contains any of the contaminants listed in table 1 at a concentration equal to or greater than the respective value given in the table, then the waste, by definition, constitutes hazardous waste. The table located at 40 C.F.R. § 261.24(a) dictates that the regulatory limit for lead is 5 mg/L (or 5 parts per million) and the corresponding regulatory limit for cadmium is 1 mg/L (or 1 part per million).
In the conference conducted by the district court prior to finalizing the jury instructions, counsel for the defendant argued that it should be left for the jury to determine if soils shipped contained hazardous waste without the benefit of the challenged definition. Defendant’s counsel also disputed the delegation by the Congress to the EPA Director to promulgate regulations defining hazardous wastes and argued that because there had been changes in those regulations as to what constituted levels of toxicity, that an individual such as the defendant should not suffer criminal liability in such a setting. Defendant’s argument is grounded in the nondelegation doctrine, which provides that Congress may not delegate its legislative power to another branch of the government. See U.S. Const, art. I, § 1 (“All legislative powers herein granted shall be vested in a Congress of the United States.”).
The district court responded to the improper delegation argument by reliance on Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 1755-56, 114 L.Ed.2d 219 (1991), for the proposition that the delegation of legislative power to another branch of the government is permissible as long as Congress sets forth an “intelligible principle” to which the executive or judicial branch must conform. In Touby, the Supreme Court upheld Congress’ delegation of the power to define criminal conduct to the Attorney General as constitutionally permissible. The Court held that “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’ ” Touby, supra, at 165, 111 S.Ct. at 1756, quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928).
The Touby Court then upheld the Controlled Substances Act at issue in that case on the ground that Congress had in fact set forth an “intelligible principle” which meaningfully constrained the Attorney General’s discretion to define criminal conduct. The Court discussed several factors that rendered the statute constitutional: (1) requiring the Attorney General to determine that the expedited procedure is “necessary to avoid an imminent hazard to the public safety”; (2) specifying the factors that the Attorney General must consider in making such a determination; and (3) requiring publication of a 30-day notice of the proposed scheduling and consideration of any comments from the Secretary of Health and Human Services. Touby, supra, at 166, 111 S.Ct. at 1756-57.
We approve the district court’s reliance on Touby in the instant case, and hold that the delegation by Congress to the EPA of the legislative authority to define hazardous waste was permissible given the fact that there existed several constraints upon the EPA’s exercise of this authority that are similar to the constraints found to be determinative of constitutionality in Touby. First of all, we note that the Resource Conservation and Recovery Act sets forth a detailed procedure with which the EPA must comply before it may exercise this legislative power and list the types and characteristics of hazardous waste. Specifically, 42 U.S.C. § 6921(a) requires the EPA to first provide notice and the opportunity for public hearing on the issue of what precisely are the characteristics of “hazardous waste,” and further requires the EPA to consult with “appropriate Federal and State agencies” on this definitional issue. See Touby, supra, at 166, 111 S.Ct. at 1756-57 (delegation of legislative power to executive constitutional in part due to requirement that executive consider comments from other authorities).
Secondly, in addition to requiring the EPA to comply with these procedural steps, the statute specifies certain factors that the EPA must consider in developing the criteria: “the Administrator shall .... develop and promulgate criteria for identifying the characteristics of hazardous waste, ... taking into account toxicity, persistence, and de-gradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics.” 42 U.S.C. § 6921(a). See Touby, supra, at 166, 111 S.Ct. at 1756-57 (holding specification of three factors that the executive is “required to consider” constrains executive’s legislative power and renders delegation constitutional).
'ÍFurthermore, besides this detailed process for establishing the criteria to be used in identifying hazardous waste, the statute also constrains the EPA’s discretion by listing specific characteristics which the statute directs “shall be subject to the provisions of this subchapter solely because of the presence in such wastes of certain constituents (such as identified carcinogens, mutagens, or teratagens) at levels in excess of levels which endanger human health.” 42 U.S.C. § 6921(b)(1).
In sum, we find no fault with the challenged definition. In fact, the district court in this case was sensitive to the knowledge component of the government’s proof and the defendant’s contention that he believed the soils in question did not constitute hazardous waste, and therefore instructed the jury on a good faith defense.
B. The Questioning of Wimsatt by the District Court.
The defendant combined his objection to the definition with an objection to the court’s questioning of Michael Wimsatt, a regulatory inspector with the NHDES in its hazardous waste program. The court engaged in the following colloquy with Wimsatt that featured the toxicity characteristic leaching procedure:
THE COURT: And the TCLP test uses water as the [leachate], right?
WIMSATT: It’s a water solution. It has some acid in it, obviously, and it has whatever contaminants, but it’s still relatively dilute and it’s essentially a water solution, that’s right.
THE COURT: Is it fair to say, then, with a TCLP test, something expressed as five milligrams per liter, could also be expressed as five parts per million?
WIMSATT: Yes, that’s correct, that’s right. So we have a limit set under TCLP that says when you get an extract from our sample, it can’t have more than five parts per million of lead in it, and if it does, it’s going to be considered a hazardous waste.
The defendant’s counsel first objected to the above questioning of Wimsatt during the jury charge conference, and when asked by the court what remedy did counsel propose, the response was to delete the hazardous waste definitional paragraph from the jury charge. The district judge declined, properly we hold, and observed that he had the authority pursuant to Evidence Rule 614 (b) to question witnesses and had done so to assist the jurors. Specifically, the district court opined:
THE COURT: All right. I decline to do that for the reasons that I’ve outlined. Let me just note I think this issue of questioning of witnesses by the Court is a very important and — important matter that has to be handled carefully by the Court. Clearly, Rule 614(b) allows the Court to question witnesses. In a trial like this where I think much of the evidence has been confusing and concerns technical matters, terms that involve jargon, I think it is important where counsel does not ask questions clearly for the Court to clarify undefined terms, and therefore I have asked questions during the trial to that end.
I think it’s also important for me since— in order to protect the defendant’s rights, that I understand the import of something that is being testified to. The jury has to make findings of fact here ultimately in deciding the defendant’s guilt or innocence, but I have to pass on motions that deal with evidentiary sufficiency; such as, Rule 29 motions.
If I don’t understand a particular point of testimony, I can’t do my job with respect to a Rule 29 motion. So I feel it’s important for me to ask questions when I don’t understand some testimony and when the jury may potentially not understand testimony. I try to do it as little as possible, and I try my best not in any way to indicate in any sense that I’m taking sides.
I also have in my jury instructions an instruction to the jury that they should not give any greater weight to the testimony of a witness in answer to my questions simply because the questions have come from me, and I have reiterated for the jury the fact that I am neutral, impartial and doesn’t— don’t have a stake in this case, and I don’t believe that I’ve in any way adversely affected the defendant’s right to a fair trial here by my questions.
So I think the premise of your request is flawed, and I decline to grant the instruction that you propose.
Transcript of Day 8 at p. 41.
We agree with the district court that his questioning in this case was permissible. Initially, we note that the First Circuit recognizes the “well-settled” rule that the trial judge has a “perfect right” to participate in the trial and to question witnesses. United States v. Gonzalez-Soberal, 109 F.3d 64, 72 (1st Cir.1997). The limitations placed on this right are that the judge’s questioning “must be balanced; he cannot become an advocate or otherwise use his judicial powers to advantage or disadvantage a party unfairly.” Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.1997). “An inquiry into the judge’s conduct of the trial necessarily turns :on the question of whether the complaining party can show serious prejudice.” Id.
In the instant case, our review of the transcript reveals that the judge’s questioning of Wimsatt was nothing more that the sort of occasional “efforts to clarify testimony” that falls squarely within the scope of the district judge’s right and responsibility to manage the progress of the trial. See Logue, supra, at 1045. Furthermore, we hold that any possible risk of prejudice to Henry as a result of the judge’s questions was abated by the clear instruction to the jury that it should ignore any impression that his questions might have made on them.
In conclusion, the trial transcript clearly demonstrates that the key issue on the conspiracy count was whether the defendant knew the soils constituted hazardous waste and his good faith defense was anchored, in his assertion that he did not believe the soils constituted hazardous waste. We further hold that the district court’s decision to define hazardous waste in the context of the indictment and the C.F.R. regulations, rather than offer no assistance to the jury on the question of what constitutes hazardous waste, as suggested by defendant’s counsel, was proper, and in any event, in the setting of this case, clearly not prejudicial to the defendant.
III. THE SENTENCING ISSUES
Two primary issues are raised. The court chose U.S.S.G. § 2F1.1 as the guideline to be followed, but the defendant argued that U.S.S.G. § 2Q1.2 was the better choice. The latter guideline governs such environmental offenses as the unlawful transportation of hazardous materials and the mishandling of hazardous or toxic substances. U.S.S.G. § 2F1.1 deals with fraud and deceit, and the use of this guideline resulted in a higher offense level calculation. A specific offense characteristic under § 2F1.1 requires a judicial calculation of the loss caused by the fraud and deceit. Henry challenges the court’s calculation even though it was reduced one level by the court from the pre-sentence recommendation.
The judge departed downward one offense level after he concluded that the application of the Guidelines did not “correctly capture [] the true value of the loss in this case.” The defendant was then sentenced to 37 months imprisonment, which is the low end of the applicable range'based on the defendant’s Criminal History of I.
A. Should the defendant have been sentenced under Guideline § 2Q1.2 rather than § .2F1.1?
Appendix A to the Sentencing Guidelines Manual provides a statutory index keyed to the applicable guideline. In the introduction to Appendix A, the statement is made that “if, in an atypical case, the Guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the Guideline section'most applicable to the Nature of the Offense conduct charged in the count of which the defendant was convicted.” ' The reader is then referred to § 1B1.2 of the Guidelines which states in Application Note 1 that “when a particular statute proscribes a variety of conduct that might constitute the subject of different offense guidelines, the court will determine which Guideline section applies based upon the nature of the offense conduct charged in the count of which the defendant was convicted.” Building on the atypical case reference and Application Note 1 to § 1B1.2, Henry contends that his convictions represent an atypical fraud prosecution because the gravamen of the convicted counts, including the conspiracy, was that the defendant violated environmental rules and regulations by transporting and storing contaminated soil which exceeded permitted levels in quantity and eomposition at the Beede Waste Oil facility in New Hampshire.
The defendant suggests that the apparent dearth of cases involving simultaneous federal prosecution of both environmental offenses and wire and fraud counts suggests the claimed atypicality and argues that the commentary in application note 13 to U.S.S.G § 2F1.1, which directs that “where the indictment ... establishes an offense more aptly covered by another guideline, apply that guideline rather than § 2F1.1,” requires that U.S.S.G. § 2Q1.2 should have been followed by the district court. The district court conducted a four hour sentencing hearing and rejected the defendant’s § 2Q1.2 argument, holding that the case was not about environmental crime, but rather “an effort by Mr. Henry to generate income.” We review de novo the trial court’s determinations on the issue of whether to apply § 2F1.1 rather than § 2Q1.2. United States v. Ruiz, 105 F.3d 1492, 1504 (1st Cir.1997).
The defendant’s reliance on United States v. Fulbright, 105 F.3d 443 (9th Cir.1997) is misplaced. In Fulbright, the defendant was convicted of conspiracy to impede federal officers in violation of 18 U.S.C. § 372 and for obstruction of justice under 18 U.S.C. § 1503. The district court there used the only guideline listed for 18 U.S.C. in the Statutory Index to the Guidelines Manual. Citing the atypicality language in Appendix A, the Ninth Circuit then' remanded for resentencing under U.S.S.G § 2A2.4 which is captioned “Obstructing or Impeding Officers,” because the defendant’s conduct was determined to be more analogous to impeding a federal officer than to obstruction of justice. Id. at 453.
In this case, in contrast to Fulbright, and as recognized by the district court below, the defendant’s conduct involved two classes of victims. With respect to the fraud counts, the victims were the companies to which Henry made promises that he never kept in exchange for the monies he extracted, while the conspiracy conviction victimized society as a whole. The decision in United States v. Rubin, 999 F.2d 194 (7th Cir.1993), tracks the single victim analysis as the victims in connection with the mail fraud and price-fixing were the same. Accepting the separate victim analysis and applying the appropriate standard of review, we find no error in the determination that the principal crime came under the fraud analysis of U.S.S.G. § 2F1.1. We find no fault in the district court’s analysis that the main motivation for the criminal conduct was to obtain money. There is no indication that the defendant was embarked on a crusade to engage in committing environmental crimes. Rather, it is clear that his objective was to make money, and in the process he engaged in an environmental crime, which conduct was an incidental by-product of his fraudulent conduct. We therefore find no error in the application of the guidelines under the aegis of § 2F1.1.
B. The Loss Calculation under U.S.S.G. § 2F1.1.
The computation of the Offense Level under § 2F1.1 requires a determination of the loss. A sliding scale has been adopted in § 2F1.1(b)(1). The presentence report fixed the loss at $1,282,718, which required an addition of eleven levels. The court refused to consider the Mobil Oil soil transactions, which were the subject of count one, and deducted $740,642 from the loss figure with a resulting total loss figure of $542,076. That final calculation of the loss added ten levels to the loss. Henry suggested that the remediation costs, while exceeding $200,000 were less than the next dollar figure of $350,-000 on the sliding scale, and inferentially argued that the loss addition should be computed at an increase of eight levels, rather than the ten levels fixed by the court. United States v. Kelley, 76 F.3d 436, 439 (1st Cir.1996), teaches that a sentencing court’s valuation of loss is subject to the clearly erroneous standard. Given the reality that some of the Beede customers may face additional costs in the remediation context, the “benefit” to the defrauded customers arising from the transportation of the soils from their sites is at best speculative. We find no fault in the ignoring of that possible benefit in the calculation. Application Note 8 to § 2F1.1 teaches that the (b)(1) loss need not be determined with precision, but rather that the court need only make a reasonable estimate of the loss given the available information. Finally, we note that the district court departed downward one level due to its uncertainty as to whether the loss had been properly determined. We find no prejudicial error in ignoring the “benefit.”
The defendant also complains that the district court improperly shifted the burden of demonstrating the value of the services provided to the Beede customers to the defendant. In view of the fact that the district court departed one level to accommodate the “loss” issue, it is not necessary to address the final sentencing issue raised by Henry challenging the district court’s holding that the defendant had the burden of proof as to the benefit provided the defrauded victims. In any event, we see no error on these facts.
IY. ALLEGED ERRORS IN THE CONDUCT OF THE TRIAL
A. Questioning of Witnesses by the District Court.
The defendant objects .to the questioning by the court of the co-defendant La-Flamme and Michael Wimsatt. The defendant points to the fact that the district court questioned LaFlamme about the presence and use of the pug mill on the site, the fact that soil had not been recycled even though Beede had produced manifests to the contrary and the role of Beede in the production and mailing of manifests. The fact questions in this case were not within the every day experience of jurors such as they are in the case of an automobile accident nor did it involve a subject such as homicide, rape or robbery that are unfortunately commonplace in our society. Against that background, it is appropriate to again emphasize the previously discussed “well settled” rule that a trial judge has a “perfect right” to participate in the trial and to question witnesses. United States v. Gonzalez-Soberal, 109 F.3d 64, 72 (1st Cir.1997). We therefore view the district court’s questioning of LaFlamme, in the context of this ease, as a judicial effort to assist the jury in a comprehensive and balanced understanding of relevant facts in a complicated setting and within the permission acknowledged by Fed.R.Evid. 614(b). We find no error.
B. The Refusal of the District Court to Exclude the Testimony of Matthew Kelly.
The court issued a sequestration order as to the witnesses and despite that order, the government witness, Matthew Kelly was present for approximately 15 minutes of the testimony of the co-defendant and cooperating witness, Robert LaFlamme. Before allowing Kelly to testify, the trial court engaged in a voir dire of Kelly and then concluded that Kelly could testify. We find neither an abuse of discretion nor prejudice to the defendant in that the defendant was acquitted on the count to which LaFlamme’s testimony was directed while. Kelly was present. See United States v. Sepulveda, 15 F.3d 1161, 1177 (1st Cir.1993) and United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.1983).
V. ISSUES RAISED BY THE DEFENDANT IN HIS PRO SE BRIEF
A. Was the defendant impermissibly convicted?
The defendant filed a separate brief with this court and argues that the United States Code is not “real” law, and also that he was impermissibly convicted of a violation of the wire fraud statute, 18 U.S.C. § 1343 because the legislative history does not explicitly anticipate that telephones and facsimile machines could serve as a basis for a violation of the statute. We find no merit in either argument.
VI. THE DENIAL OF THE DEFENDANT’S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE
The defendant filed a motion for a new trial two weeks before his sentencing. The court went forward with the sentencing on June 25, 1996, and then heard the motion on July 24,1996 and overruled the motion on March 13, 1997. The defendant then appealed the denial. This court then combined the two appeals for a single appellate argument.
Recognizing that the standard of review is a “manifest abuse of discretion” as set forth in United States v. Montilla-Rivera, 115 F.3d 1060, 1064 (1st Cir.1997), citing United States v. Andrade, 94 F.3d 9, 14 (1st Cir.1996), the defendant argues that, the denial of the motion based on newly discovered evidence was such an abuse of discretion.
The motion for a new trial based on newly discovered evidence was accompanied by a number of exhibits and affidavits in support of the motion. The main thrust of the materials was anchored in the proposition that had the evidence been presented to the jury, the jury would more likely have believed the defense that Henry did not believe the soils constituted hazardous waste and that he did intend to remediate the soils. The judge conducted a lengthy hearing in which he invited discussion on each of the exhibits and affidavits from counsel and then denied the motion in a carefully crafted 26 page order.
A motion for a new trial based on newly discovered evidence, to be successful, faces a difficult test. The defendant must demonstrate that the evidence was unknown or unavailable at the time of trial despite due diligence and that the evidence was material and likely to result in an acquittal upon retrial. United States v. Tibolt, 72 F.3d 965, 971 (1st Cir.1995).
The district court found that much of the evidence could have been discovered with due diligence. In that context, we note that the initial indictment was returned on March 2, 1995 and the superceding indictment was filed on January 5,1996. The trial began on February 6, 1996. Henry and his counsel, whose defense of Henry appears to have been thorough and intense, had nearly a year to prepare for the trial. We see no basis to disturb the district court’s denial of the motion as it related to the evidence that could have been discovered prior to trial in light of our teachings that an order denying a motion for a new trial will not be reversed except where we find a “manifest abuse of discretion.” United States v. Montillar-Rivera, 115 F.3d 1060, 1064 (1st Cir.1997).
Henry did offer a March'28, 1996 report that was clearly new evidence in that the report was not available prior to that time. Sanborn, Head & Associates, a consultant for the State of New Hampshire, released a report assessing various remedial alternatives for the contaminated soil remaining at the Beede site. That report, in an appendix, contained copies of test results conducted by Beede’s laboratory that used the 3040 test method. Henry contends that the SHA report was important new evidence as it demonstrated reliance by the State’s environment consultant on the same 3040 test method that Henry claimed he had relied on in concluding that the soil removed from the Stoneham Laundry site was nonhazardous. The judge acknowledged that the report was new evidence, but concluded it was impeaching and cumulative and not sufficiently probative to warrant a new trial. In reaching that conclusion, the district court opined:
Henry has submitted no direct evidence to support his claim that either NHDES [New Hampshire Department of Environmental Safety] or SHA [Sanborn; Head & Associates] relied on the 3040 test results included in the SHA report. Thus, I am asked to infer this reliance from the bare inclusion of the documents in the appendix of the SHA report.
The SHA report itself sheds little light on the extent of SHA’s reliance on the 3040 test results. These test results were all produced by Beede’s own laboratory. SHA included these analytical in Appendix C of its report. Appendix C is referenced on pages 3-4 of the SHA report under the heading “Soil Pile Descriptions” which states: “Analytical results provided by NHDES for soil collected from piles Nos. 5A, 53, 8 and 10 are included in Appendix C.” Appendix C itself consists mainly of numerous test results from Chem Test Lab, apparently ordered by NHDES. In addition to the Chem Test results, there are four test results produced by Beede’s laboratory which analyze halogens using the 9020 method, TPH using the GCFID method, and metals levels using the 3040 method. Although these test reports are included in Appendix C, it is unclear to what extent, if any, they were relied upon by SHA. Henry’s contention, therefore, that the state relied on his 3040 test analytical in its assessment of the Beede site’s contamination is, at best, uncertain.
Even assuming Henry could show that the state relied on Beede’s 3040 test analytical through the SHA report, Henry cannot show that this new evidence is material. Henry bases his argument that the SHA report justifies a new trial mainly on the grounds that it would have assisted him in his impeachment of the testimony of Michael Wimsatt. This new impeachment evidence is not probative enough to suffice as grounds for a new trial. See Pelegrina v. United States, 601 F.2d 18, 21 (1st Cir.1979) (“impeaching evidence is generally treated as immaterial” on motion for new trial).
Finally, even if the SHA report demonstrated that the state relied on the 3040 test and that Henry may also have been justified in relying upon it himself, I cannot conclude that the jury would likely have acquitted Henry if it had been presented with this new evidence. At trial, the government’s evidence was not just that Henry mistakenly used the 3040 test as opposed to the TCLP test, but that Henry was provided, with TCLP test results showing the soil he was about to transport was hazardous. The likely inference from these facts is that Henry used the 3040 test to convince his customers that the soil was not hazardous and could be accepted at the Beede facility. All these machinations were performed as a part of a scheme whereby Henry agreed to transport soil from New Jersey to a hazardous waste facility in Michigan, but actually had no intention of doing so. Instead, he transported the soil to the Beede facility, dumped it there and then performed the 3040 tests. Henry showed these new test results to his customer in an attempt to convince it that the soil was acceptable for recycling at the Beede facility. Henry’s effort to show that he might have reasonably relied on the 3040 test results is unlikely to overcome this evidence of willful deceit.
Appendix at pp. 18-21.
Our standard of review is anchored in an acknowledgment that the judge who tried the ease is best equipped to examine the issue of whether the new evidence would likely result in an acquittal. In our view, the district court, consistent with his deliberate and thoughtful management of this case, carefully analyzed the impact of the Sanborn, Head & Associates report and we see no basis for disturbing his findings.
For the reasons discussed, we affirm the defendant’s conviction and sentence, and we also affirm the district court’s denial of the defendant’s post-trial motion for a new trial.
AFFIRMED.
. Section 6928(d)(1) provides:
(d) Criminal penalties
Any person who—
(1) knowingly transports or causes to be transported any hazardous waste identified or listed under this subchapter to a facility which does not have a permit under this subchapter,
shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both....
. The jury was instructed as to the defense of good faith with respect to the conspiracy count as follows:
If the defendant had a good faith belief that Beede was authorized to transport the waste to its facility, he is not guilty of the crime of conspiracy even if it turns out that that belief was wrong.
The burden of proving good faith does not rest with the defendant because the defendant does not have an obligation to prove anything in this case. It is the government’s burden to prove beyond a reasonable doubt that the defendant is guilty of conspiracy.
. This rule states that "[l]he court may interrogate witnesses, whether called by itself or by a party.” Fed.R.Evid. 614(b).
. Because the adjusted offense level for the conspiracy conviction was determined to be nine levels less serious than the level for the grouped fraud count, pursuant to U.S.S.G. i 3D1.4(c) the conspiracy conviction did not increase the total offense level of 22 as computed under the mail and wire fraud counts.
. "If, in an atypical case, the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, [the court should] use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted.” U.S.S.G. Appendix A. See also U.S.S.G. § 1B1.2, comment (n.l).
. The district court, in granting the one-level downward departure, explained that had he accepted Henry’s argument that the loss level should be reduced by the "benefit” claimed by Henry, the resulting enhancement required by U.S.S.G. § 2F1.1(b)(1) would have been eight rather than ten levels. The district court further explained that had the loss level been’calculated at eight levels, then the grouping rules for multiple counts, U.S.S.G. § 3D1.1, et. seq., would have come into play with the consequence that the total offense level would have been reduced only one level, i.e., from 22 to 21. In recognition of the controversy over the calculation of the loss, the court then departed downward one level from the total offense level of 22 that included ten levels for the loss to a total offense level of 21. See transcript of sentencing hearing at 153— 156.
. The challenged questioning of Wimsatt has been addressed previously and we see no need to revisit the issue. See supra discussion at 17-19.
. Henry was represented by Bjorn R. Lange, an Assistant Federal Defender, who was appointed on March 9, 1995 and remained as Henry’s counsel throughout the trial and on appeal.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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GOODWIN, Circuit Judge:
Ian Martin Lynch appeals his conviction under 16 U.S.C. § 470ee(a) of the Aeheo-logical Resources Protection Act (“ARPA”). He entered a conditional guilty plea after the District Court advised him that the Government would not have to prove that the defendant knew that his act was against the law nor that, the skull he removed from government land was an archeological resource.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. The conditional guilty plea was entered under Federal Criminal Rule 11(a)(2). Pursuant to an agreement with the Government and with the approval of the district court, Lynch preserved for appeal the mens rea issue. Therefore, the only question before us is whether the trial court erred in holding that the indictment, which charged a knowing violation of § 470ee(a) did not require proof that the defendant knew that a human skull he picked up and took home was an “archeological resource.”
The facts are not disputed. The defendant concedes that he saw a human skull partially exposed and partially covered by soil, that he scraped away the dirt with his hands and lifted the skull from a rocky hillside. There is no evidence that the defendant had reason to know that the location was a burial place, or that the skull was of ancient origin. There is no evidence that the defendant knew that the skull had any monetary value, or that its removal would create government funding for contractors.
Expert witnesses brought into the case after the defendant’s conduct was reported to authorities could not fix the age of the skull until after a sample of bone was removed and sent to a laboratory for carbon dating. The skull turned out to be 1400 years old, and the costs associated with the investigation and restoration of the site where the skull was found amounted to something in excess of $7,000, which the Government says the defendant must pay for violating the statute. The Government says these later discovered facts are the risks one assumes when picking up human bones on government land.
We have examined the limited judicial authority we have found on the criminal liability of one who is charged with a knowing violation of a statute denouncing as a crime the removal of an “archeological resource,” and are satisfied that the Government must prove that the defendant knew more than that the object he removed was a human skull.
In the summer of 1997, Lynch was a twenty-three year old high school graduate. He and two friends went deer-hunting on Heceta Island, an uninhabited island in southeast Alaska. The island contains an area identified by a report conducted for the Alaska Native Claims Settlement Act as the “Warm Chuck Village and Burial Site,” which contains the remains of an Alaska native village. There is no evidence that Lynch knew of the quoted report.
When the others were packing up camp, Lynch went looking for caves. After walking over some boulders, he looked down and saw what looked like the back of a skull. Lynch picked it up, and knew it was a skull. He then picked up some rocks, found other bones, and cleared away some dirt with his hands. He put the rest of the bones back in place and “took the skull back home to do some research on it.” The skull was not found in a cemetery or apparent burial ground, but rather was in the side of a hill, under a rock outcropping. The skull was found outside of the area previously identified as archeologically significant by anthropologists ancl Native historians.
' On August 5, 1997, U.S. Forest Service agents interviewed Lynch. Lynch agreed to the interview, gave the agents the skull, and directed the agents to the location of the bones. During the interview, Lynch admitted that he knew the skull was old: “So I mean, it’s definitely been there for a while. Oh, man, it’s definitely old. There’s not a stitch of clothin’ or nothin’ with it.”
The regional Forest Service archeologist stated that in his opinion the skeleton had been deliberately placed or interred at the site, but he could not determine its age. The archeologist called in a physical anthropologist to determine the age of the skull. Osteological examination of the skull and the skeleton failed to provide sufficient evidence of their antiquity for ARPA prosecution. In order to determine whether the skull was at least 100 years old, and therefore an “archeological resource” under 16 U.S.C. § 470bb(l), authorities cut out a section of the skull and had the fragment’s age measured by carbon dating. The analysis showed an age of at least 1400 years.
Lynch was indicted for felony violation of ARPA, 16 U.S.C. § 470ee(a). Lynch filed motions to dismiss the indictment and to disclose the grand jury transcript. He argued that the indictment had omitted the requisite statutory scienter and that the grand jury had been incorrectly instructed. The district court denied Lynch’s motions, and concluded that taking a skull was “malum in se,” defined in Black’s Law Dictionary 959 (6th ed.1990) as “a wrong in itself; an act or case involving illegality from the very nature of the transaction, upon principles of natural, moral, and public law.” The court held that to fulfill the statutory scienter requirement, the accused need know only that he was excavating, removing, damaging and/or otherwise altering a human skull out of a grave. 16 U.S.C. § 470ee(a) provides:
No person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 470cc of this title, or the exemption contained in section 470cc(g)l of this title.
The statute’s penalty provision 16 U.S.C. § 470ee(d) provides:
Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a),(b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, that if the commercial or archaeological value of the archaeological resources involved exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both
Lynch’s argument that the Government must prove that he knew he was breaking the law has been rejected in a number of somewhat similar cases. See United States v. Sherbondy, 865 F.2d 996 (9th cir.1988) (holding that the statute’s use of the phrase “knowingly violates subsection ... (g) of section 922” does not imply that knowledge of the law is required to satisfy the mens rea requirement of the statute). In United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971), which also held that “knowingly violates” language did not imply that knowledge of the law was required, the Court explained:
“We ... see no reason why the word ‘regulations’ should not be construed as a shorthand designation for specific acts or omissions which violate the Act. The Act, so viewed, does not signal an exception to the rule that ignorance of the law is no excuse ...”
Id. at 561, 91 S.Ct. 1697.
We turn next to Staples v. United States, 511 U.S. 600, 114 S.Ct. 1798, 128 L.Ed.2d 608 (1994) (holding that the Government must prove that the defendant knew the weapon he possessed was a machine gun, not that he knew his possession was against the law) and Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (holding that a statute punishing “knowing conversion” required that the defendant have knowledge of the facts, though not necessarily the law that made the taking a conversion). We find these cases instructive, in that the defendant must know that he is in fact performing an act, whether or not he knows that the act has been criminalized by statute.
The Government argues that ARPA’s use of “knowingly” rather than “wilfully” reflects legislative intent that the statute not require a knowledge that one’s actions are against the law. We agree. See United States v. Flores, 753 F.2d 1499, 1505 (9th Cir.1985) (declining to hold that knowledge of the law was necessary absent the word “willful” in the statute and a clear Congressional intent). But this case does not turn on Lynch having known the law, it turns on whether he knew, or should reasonably have been expected to know, that the human remains he found were “archeological resources” and that they possessed value other than the satisfaction of his curiosity.
The legislative history of the ARPA appears to reject the requirement of specific intent. Appellant states in his brief: “[t]he legislative history does not fully clarify the intent of its framers with respect to the mens rea issue.” He offers a number of remarks from the legislative debate. For example, the bill’s House sponsor, Congressman Morris Udall, stated:
I want to take just a moment to explain to the House why this Legislation is needed. In the West, where most of the public lands of the United States are located, and where the archaeological resources are rich, there is a growing tendency on the part of a few industrious entrepreneurs to locate likely sites of ancient ruins to move in a backhoe or similar equipment, and to proceed to mine the area for any artifacts they might unearth ... The bill now before the House attempts to correct this situation. It prohibits the wanton destruction of archeological sites and resources located on the public domain or on Indian lands ... It establishes effective penalties for those who knowingly violate the prohibitions in the act.
125 Cong. Rec. H17391, 17393 (daily ed. July 9, 1979) (statement of Rep. Udall). Congressman Udall addressed the concerns over prosecution of the “casual visitor” who stumbles across an artifact and decides to keep it:
Certainly, no sponsor of this legislation and probably no reasonable person would want some overzealous bureaucrat to arrest a Boy Scout who finds an arrowhead along a trail or a purple bottle out in the desert. The bill is not drafted for this purpose at all. It is expected that those responsible for the administration and enforcement of this act will use good judgment and exercise moral persuasion where violations unwittingly occur. The thrust of this act is not to harass the casual visitor who happens to find some exposed artifact, but to stop the needless, careless, and intentional destruction of archeological sites and organized and intentional theft of the valuable remains of previous civilizations.
Id. at 17394. Others in Congress echoed Representative Udall’s concerns. Speaking to the Senate Subcommittee on May 15,1979, Senator Domenici stated:
[A]s you might suspect there are many innocent people who would be adversely affected; Boy Scouts, ... civic groups, and the like, who because of a lack of information on the subject of ownership might unknowingly enter onto public lands with really no malice or knowledge whatsoever ...
We also have broad civil authority for the lesser kind of technical offenses that I have described. We want the felony jurisdiction to be only for extreme cases where there is both knowledge and a very valuable product, and the remainder would be misdemeanors. And if they are misdemeanors they should require knowledge.
Archaelogical Resources Protection Act of 1979: Hearing on S. 190 Before the Sub-comm. on Parks, Recreation, and Renewable Resources, 96th Cong. 96-26 (1979) (statement of Sen. Pete V. Domenici). See also id. at 41 (statement of Dr. Ernest Connally, Assoc. Dir., Heritage Conservation and Recreation Service, Dept, of the Interior) (describing the intended subjects of criminal prosecution as sophisticated operators, not “mere pilfer[ers]”).
The Report to Accompany H.R. 1825, the Archeological Resources Protection Act of 1979, 96th Cong. 1st Sess. (1979), however, clearly rejects the specific intent argument propounded by Lynch. It states:
This section also provides criminal penalties for those who knowingly commit one of the prohibited acts. This is a general intent crime, and therefore a person could be convicted if he acted of his own volition and was aware of the acts he was committing.
H.R.Rep. No. 96-311, at 11 (1979). We hold that knowledge of the law is not necessary. But knowledge of the facts that make a trespass a felony is necessary.
For a felony conviction, the prosecution should have to prove that a person charged under ARPA knew, or at least had reason to know, that the object taken is an “archeological resource.” Picking up a skull is not in every case “malum in se,” nor does every case “involve public welfare.” A prosecution for knowingly violating a statute enacted to criminalize removal of archeological resources must follow at least minimal traditional mens rea principles in order to give meaning to “knowingly.”
In most cases, a requirement that a violation be “knowing” means that the defendant must “know the facts that make his conduct illegal.” Staples, 511 U.S. at 606, 114 S.Ct. 1793. In Morissette, the Supreme Court examined the mens rea requirement of a statute that stated: “Whoever ... knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States ... [sjhall be fined ...” 342 U.S. at 248, 72 S.Ct. 240 (citing 18 U.S.C. § 641). The Court held that the term “knowingly” required that the defendant have knowledge of the facts that made his taking of shell casing brass on federal land a conversion, in particular, that the property belonged to the United States before criminal liability could attach. Id. at 271, 72 S.Ct. 240. Similarly, in Staples, 511 U.S. at 623, 114 S.Ct. 1793, the Court held that the Government must prove beyond a reasonable doubt that the defendant knew the weapon he possessed had characteristics that brought it within the statutory definition of a machine gun in order to be convicted for failing to register a machine gun.
The concerns that led the Staples Court to read a knowledge requirement into the statute exist here. As in Staples, there exists here the potential for harsh penalties to be applied to those who acted in ignorance of a fact that the statute makes an otherwise noncriminal act a crime: a skull may or may not be an archeological resource, just as it may, or may not be evidence of a recent accident or of a recent crime. A felony conviction carries a possible fine, of $10,000 and up to a year in prison, or if the.value or cost of restoration of an archeological resource amounts to $500, up to $20,000 and up to 2 years in prison. See 16 U.S.C. § 470ee(d). As the legislative.history suggests, there may be “casual visitors” to public lands whose souvenir collection, depending on the facts, may be merely thoughtless, but not felonious. Lynch may or may not have been a wholly innocent casual visitor. His interview revealed that he was interested in, or at least curious about, artifacts associated with early inhabitants of the land. He admitted that he was hoping to find something in his cave wanderings, and that he liked to collect things. He even admitted to agents that he knew he had done something wrong. Nevertheless, the Staples concern regarding strict penalties to unwitting violators counsels against convicting an unwitting person of a felony when nobody knew until after a lengthy investigation that the object taken was more than 100 years old, and that the costs associated with restoration of the site would exceed $500. Like the widespread tradition of gun ownership in the United States that animated the Staples court’s decision, 511 U.S. at 610, 114 S.Ct. 1793, there also exists a widespread tradition of arrowhead and artifact collecting.
The Government, like the district court, casts Lynch’s conduct in a different light, and claims that Staples' is inapposite because there is no acceptable tradition of grave robbing. However, the Government did not charge Lynch with grave robbing, and the record does not demonstrate that Lynch knew or should have known that the skull was in a grave.
In yet another case, United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), the Court considered a statute making it criminal to “knowingly transport or ship in interstate or foreign commerce by any means including by computer or mails, any visual depiction if (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct.” 18 U.S.C. § 2252. The Court held that the term “knowingly” applied to the age of the performers and to the sexually explicit nature of the material in a child pornography statute, despite the natural grammatical reading of the Protection of Children Against Sexual Exploitation Act under which the scienter element would apply only to the transport element. See X-Citement Video, 513 U.S. at 69-71, 78, 115 S.Ct. 464. The court explained: “Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 72, 115 S.Ct. 464. Because removing objects that are not “archeological resources” from public land is not a violation of ARPA, the knowingly requirement should apply to the term “archeological resources,” as well as to the prohibited act of removing.
The Government seeks to characterize the case as a “public welfare” case — or as the district court puts it, a “malum in se ” case for which an exemption to the traditional mens rea requirements exists. The Government argues that it is not prosecuting “otherwise innocent conduct” because “any person on public land cannot believe that removal of an artifact, human or otherwise, can be accomplished legally without some type of regulation.” The average citizen may be expected to know that the Administrative Society has become so pervasive that in a national forest everything that is not expressly permitted must necessarily be forbidden. However, the concerns expressed in the legislative history seem to belie this claim. Representative Udall and others’ comments acknowledge the possibility that boy scouts and other “casual visitors” might innocently and inadvertently remove an artifact from the public domain.
The examples of public welfare cases relied on by the Government discuss conduct that is, but for the statute prohibiting it, considerably less innocent than taking a skull from public land. In United States v. LaPorta, 46 F.3d 152 (2nd Cir. 1994) (rev’d on other grounds Sicurella v. United States, 157 F.3d 177 (2nd Cir. 1998)), the court held that a statute proscribing the destruction of government property by fire or explosives did not require that defendants know they were destroying government property, because arson is not innocent conduct. Similarly, in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), the Supreme Court held that a statute making it an offense to assault federal officers required no more than proof of an intent to assault and that it was not necessary under the substantive statute to prove that the defendants knew the undercover agent they assaulted were federal officers. In United States v. Sabian, 92 F.3d 865 (9th Cir.1996), we held that the Government, under a computer fraud statute, need not show an intent to destroy government files, but rather only the intent to access a “federal interest” computer without authorization. We noted that accessing the computer was already a violation. The argument that picking up a partly exposed skull on a rock surface in a national forest without the knowledge that it is an “archeological resource” is inherently felonious conduct like arson, assault, or breaking into a federal interest computer is a stretch this court will not make in order to affirm a dubious felony conviction.
The Government urges that the stretch is justified by our recent decision in United States v. McKittrick, 142 F.3d 1170 (9th Cir.1998). In McKittrick, we dealt with a provision of the Endangered Species Act (“ESA”) that provided penalties for “knowing violations” of any regulations issued under the statute. Id. at 1173, n. 1. We held that the defendant did not have to know that he was'shooting a wolf, which was listed as an endangered species, to violate regulations relating to experimental population. See id. at 1177. The court relied on Congress’s 1978 decision to change the wording of the section from “wilfully” to “knowingly” and on the agreement of the Fifth and the Eleventh circuits “in related situations.” Id. The opinion does not expressly address the issue of whether the case involved a “public welfare” offense or whether shooting an animal that is not a wolf constitutes “otherwise innocent conduct.” Id. The Government points to similarities in the purposes of the statutes, conservation of resources, their language, “knowingly violates,” and even the nature of the element at issue, knowledge of the nature of the object of the defendant’s act, in support of its contention that the Government need not prove that Lynch knew the skull was an “archeological resource.” The reasoning of McKit-trick would support a conviction if Lynch, at the time of the charged event, had reason to know that he had picked up and removed a human skull, even though he did not know it was more than a hundred years old.
McKittrick is distinguishable for a variety of reasons. First, it dealt with the ESA, where, as a Fifth Circuit case McKittrick court cites for support explained, “the plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.” United States v. Ivey, 949 F.2d 759, 766 (5th Cir.1991) (emphasis added) (citation omitted). With respect to the ARPA, however, the legislative history suggests that Congress was concerned about the risk of penalizing archeologically naive visitors to public lands.
Second, McKittrick involved misdemeanor penalties; whereas, this appeal involves felony penalties. See Morissette, 342 U.S. at 260, 72 S.Ct. 240. One of the Fifth Circuit cases cited in McKittrick emphasized that the violation of the ESA was a misdemeanor to distinguish it from cases requiring mens rea in criminal statutes. See United States v. Nguyen, 916 F.2d 1016, 1019 (5th Cir.1990).
We note also that the Eleventh Circuit case cited by McKittrick to support the argument against a mens rea requirement for an ESA violation in fact supports Lynch’s stricter specific intent argument. United States v. Grigsby, 111 F.3d 806 (11th Cir.1997). In Grigsby, the court decided that the “knowingly violates” language of a criminal penalty provision of the African Elephant Conservation Act (“AECA”) required specific intent. Id. at 819. The court relied not only on the language, but also on legislative history to reach this distinction between misdemean- or and felony statutes.
Lynch claims that here the existence of § 470ff, which provides for civil penalties for violations of ARPA and omits the word “knowingly,” reflects Congress’s intent to punish criminally “only those who were aware of the very nature of the object they were excavating.” Senator Domenici’s and Congressman Udall’s remarks to Congress bolster this interpretation, as does the Court’s holding in X-Citement Video. The Court examined 18 U.S.C. § 2252, a statute remarkably similar to the one at issue here, and ultimately concluded that the Government had to prove knowledge of sexually explicit conduct and knowledge that the depiction involved the use of a minor. See 342 U.S. at 269, 72 S.Ct. 240 (acknowledging the potential absurdity that would result if people who unknowingly transported items were protected, and people who knowingly transported items that they had no idea contained prohibited material were not).
We hold that under 16 U.S.C. § 470ee(a), the Government must prove that a defendant knows or had reason to know that he was removing an “archeological resource.” Accordingly, the judgment is vacated to permit Lynch to withdraw his plea, and the case is remanded for further proceedings consistent with this opinion.
VACATED AND REMANDED
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RONEY, Circuit Judge:
In this action appellants seek to enjoin the federal funding of a proposed low and moderate income apartment project in Houston, Texas. Appellants contend that the failure of the Department of Housing and Urban Development to file an environmental impact statement bars it from further funding of the project. The District Court denied injunctive and declaratory relief. We affirm, holding that the threshold determination made by HUD not to file an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4321 et seq. was not unreasonable and must therefore be upheld. See Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973).
The proposed project against which this action is directed is a 272-unit apartment complex to be known as the Artistocrat Apartments and to be constructed on a fifteen acre tract near West Airport Boulevard and Hiram Clarke Road in Houston, Texas. The estimated cost of the project is some $4,181,330, and a loan to the private developer, approximately $3,763,200, is to be insured by HUD Under Section 236 of the National Housing Act, 12 U.S.C.A. § 1715z-l(j), which provides federal mortgage insurance for housing projects designed for low and moderate income residents. The apartments have an average value of $15,400 and the project contains courtyards, open spaces, children’s playgrounds, a swimming pool, and a 6,500 square-foot community center.
Appellants, homeowners in the immediate area surrounding the site of the proposed apartments, initially opposed the project through local zoning boards and other governmental administrative bodies. Finding no success, appellants then challenged the HUD funding decision. On appeal, as in the District Court, they contend first, that HUD failed to comply with its own regulations implementing NEPA and second, that, even if HUD’s actions complied with its own regulations, the requirements of the Act itself remain unfulfilled.
I.
Under NEPA, Congress has established a system of procedures for federal agencies to follow in making decisions that might have an impact on the environment. Section 102(2) (C) of the Act, 42 U.S.C.A. § 4332(2) (C), which sets out the concept of the environmental impact statement, requires that “all agencies of the Federal Government shall (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment” a detailed statement on the proposed action’s envionmental effects. This rather general legislative language received explication in the interim guidelines of April, 1970, published by the Council on Environmental Quality, the agency established by Title II of NEPA, 42 U.S.C.A. §§ 4341-4347, to serve as a research, resource, and advisory body in the Executive Office of the President of the United States. These guidelines became final, without important alteration, in April, 1971. Section 3 of the guidelines directed federal agencies to promulgate their own procedures for “identifying those agency actions requiring environmental statements . . . Council on Environmental Quality, Guidelines § 3, 36 Fed.Reg. 7724 (April 23, 1971). Section 5(a) (ii) defines “action” as including projects supported in whole or in part by federal loans, subsidies, or other forms of funding assistance. Guidelines, supra, § 5(a) (ii), 36 Fed. Reg. 7724 (1971).
These CEQ guidelines are merely advisory, because the CEQ does not have the authority to prescribe' regulations governing compliance with NEPA. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir. 1972). Following these CEQ guidelines, however, HUD published Circular 1390.1 setting forth the detailed procedures that it would employ for screening all HUD projects to insure its compliance with the Act as to each project.
HUD Circular 1390.1 established certain “thresholds” that are used to isolate those projects that may be major federal actions significantly affecting the quality of the human environment. A project passing the first threshold is then given special environmental consideration and study. This means that the project must be thoroughly investigated, and the HUD office involved must either file a “negative statement,” indicating that approval of the project application is consistent with established HUD policy and standards and that it would have no significant adverse effect on the environment or, if unresolved environmental issues or concerns remain, must draft and circulate a detailed environmental impact statement.
“Special Environmental Clearance” for projects and major changes: That additional review of environmental consequences which shall be applied to larger size projects or projects with greater environmental significance (including all projects above thresholds in Appendix A) and to projects which are controversial with regard to whether or not HUD and other appropriate environmental policies and standards are being met, or precedent-making in the sense that important environmental circumstances are not treated in HUD’s central office guidance documents. For this purpose, the HUD Environmental Clearance Worksheet (see Appendix B) is suggested. All special environmental clearances shall result in either (a) a negative statement signed by the head of the HUD field office (or his designated Environmental Clearance Officer), indicating that approval of the application is consistent with established HUD policy and standards and would have no significant adverse effect on the environment, or (b) if there are still unresolved environmental issues and concerns, the drafting and circulating ot a 102(2) (C) environmental statement. A negative statement or a 102 (2) (C) environmental statement shall become part of the application file and shall accompany the application through the HUD review and decision process.
The “threshold concept” used to screen proposed applications of the kind under review here establishes the rule that proposed apartment projects of one hundred or more units require a “Special Environmental Clearance.” Additionally, paragraph 3 of HUD Circular 1390.1, Appendix A, states that “controversial” or “precedent-making” HUD projects must be given “Special Environmental Clearance.”
The precise question before us, then, is whether HUD complied with the mandate of NEPA and with its own guidelines.
The standard for reviewing HUD’s decision has been explicated by this Court in our recent opinion in Save Our Ten Acres v. Kreger, supra. In SOTA, we held that the decision of a federal agency not to file an environmental impact statement, when reviewed by the courts, should be tested by a stricter “reasonableness standard,” instead of by the well-settled rule that, in the absence of fraud, administrative findings of fact are conclusive if supported by any substantial record evidence. This more penetrating standard is necessary because “[t]he spirit of [NEPA] would die aborning if a facile, ex parte decision that the project was minor or did not significantly affect the environment were too well shielded from impartial review.” SOTA, at page 466.
This case, though, differs from the SOTA case in the procedures and standards employed by the District Court to evaluate HUD’s determination that an environmental impact statement was not required. Unlike in SOTA, where the District Court denied relief solely on the basis of its review of the agency’s administrative record, the District Court here conducted a full-scale trial on the issue, hearing witnesses and taking evidence from parties involved. Hence, the District Court’s decision here rests upon two independent bases: the record of HUD’s considerations and the Court’s own findings. This is not to say, though, that this procedure is mandatory whenever someone challenges an agency’s failure to file an environmental impact statement. Rather, as we said in SOTA, only if a plaintiff raises substantial environmental issues should a court proceed to examine and weigh the evidence of both the plaintiff and the agency to determine whether the agency reasonably concluded that the particular project would have no effects that would significantly affect our environmental quality. Only if the plaintiff can show an inadequate evidentiary development before the agency should the District Court supplement the deficient administrative record by taking evidence on the environmental impact of the project.
We reiterate, as we stated in SOTA, that it is not the province of the courts to review the agency decision on the merits as to the desirability vel non of the proposed project. Instead,
it is the courts’ function to insure that the mandate of the statute [NEPA] has been carried out and that all relevant environmental effects of the project be given appropriate consideration by the responsible official whenever it is unreasonable to conclude that the project is without the purview of the Act.
SOTA, supra, at page 467 (emphasis added).
II.
On December 1, 1969, the private developer, LIBO, Inc., applied to HUD for federal mortgage insurance available under Section 236 of the National Housing Act, 12 U.S.C.A. § 1715z-l(j). On July 16, 1971, HUD issued a Firm Commitment to assist the proposed project, promising to supply both federal loan insurance and mortgage payment subsidies.
NEPA became effective on January 1, 1970, and on April 30, 1970, the interim guidelines for implementing NEPA were issued. As we have pointed out earlier, these guidelines were issued in final form, with only minor changes, on April 23, 1971. On June 19, 1970, HUD issued a memorandum establishing interim internal procedures for implementing NEPA. Specific policies and procedures applicable to HUD offices in the Fort Worth Region were established by HUD Circular FW 1300.2, issued March 1, 1971, and received by the Houston HUD office on March 15, 1971. This Circular introduced the “threshold” and “negative statement” concepts. On July 16, 1971, HUD issued Circular 1390.1 establishing nationwide departmental policies governing the implementation of NEPA, including specific “threshold” and “negative statement” procedures. On September 21, 1971, CEQ General Counsel approved HUD’s “negative statement” procedures.
Appellants filed their complaint on October 18, 1971. At this time, the Houston HUD office reviewed the entire project for the second time. Although the project had been in the HUD “pipeline” prior to the effective date of NEPA and before HUD Circular FW 1300.2, paragraph 3, directed that there must be evidence of “significantly adverse” environmental impact before the provisions of HUD Circular 1390.1 (the HUD Circular implementing NEPA) apply to applications in the HUD “pipeline” prior to March 15, 1971, the Houston HUD office, nevertheless, worked up a “Special Environmental Clearance.”
Under the direction of the Multi-Family Appraiser, a HUD “Environmental Clearance Worksheet” was prepared, considering population density and distribution, adequacy of sewer and water facilities, vehicular traffic, ingress and egress, noxious odors, inharmonious property uses, deteriorating neighborhood influences, adequacy of community support facilities, location in relation to the general area, the proposed management plan for maintaining the apartments, and the value of the property and the kind of development that could otherwise be expected on the property.
This “Worksheet” was reviewed by the same officials who had previously evaluated it, the Chief Valuator, the Chief Architect, and the Multi-Family Coordinator, but this time with special emphasis on environmental impact. Their review concluded that the proposed project would not produce the significant environmental impact contemplated by NEPA. The Chief Underwriter and Environmental Clearance Officer then prepared a “negative impact” statement. After full staff consultation, the Director of the Houston HUD office concurred in the “negative statement.”
After a careful examination of the trial testimony and the supporting HUD documents, we conclude that the District Court correctly held that, as a matter of law, HUD was not required by NEPA to file an environmental impact statement covering the proposed apartment project. Although the District Court here did not have the benefit of our opinion in SOTA when it reviewed the HUD decision, its findings amply support the agency decision. As the Director of the Houston HUD office testified, appellants have raised no environmental factors, either beneficial or adverse, that were not considered by HUD before it concluded that this apartment project would produce no significant environmental impact. On this record, then, it was not unreasonable for HUD to determine that an environmental impact statement was not required.
Appellants argue that the HUD actions here do not comply with the final CEQ Guidelines. They especially contend that Section 5(b) of the Guidelines, 36 Fed.Reg. 7724 (1971), which requires that an environmental impact statement be prepared where the proposed federal action “is likely to be highly controversial,” requires HUD to file an environmental impact statement here. Apart from the question of what constitutes a “highly controversial” federal action, a question which must surely be answered in the negative in this case, appellants misperceive the authority of the CEQ Guidelines. Unlike agency regulations, which have the force of law, these Guidelines are merely advisory because the CEQ was not given authority to prescribe regulations governing compliance with NEPA. Greene County Planning Board v. FPC, supra.
Appellants next contend that HUD’s standard of determining “significant effect” incorrectly equates “significant” with “adverse.” Appellants argue that HUD’s determination was necessarily based on an incomplete investigation, since HUD was concerned only with adverse impact. They point to CEQ Guideline 5(c), which states :
Section 101(b) of the Act indicates the broad range of aspects of the environment to be surveyed in any as- • sessment of significant effect.
36 Fed.Reg. at 7725 . (1971). Once again, though, possible HUD noncompliance with CEQ Guidelines raises no legal issue. But the deeper question remains of whether this HUD practice, that of determining that an environmental impact statement is unnecessary if no adverse environmental effects can be forecast for the federal action in question, complies with NEPA. Appellants argue that NEPA requires that an agency file an environmental impact statement if any significant environmental effects, whether adverse or beneficial, are forecast. Thus, they argue, by considering only adverse effects HUD in effect did but one-half the proper investigation. We think this contention raises serious questions about the adequacy of the investigatory basis underlying the HUD decision not to file an environmental impact statement. A close reading of Section 102(2)(C) in its entirety discloses that Congress was not only concerned with just adverse effects but with all potential environmental effects that affect the quality of the human environment.
Nevertheless, any deficiency in this HUD procedure does not require the preparation of an environmental impact statement for this project. The District Court in a full evidentiary hearing fully explored the controlling factors and concluded that the project in question was not a major federal action significantly affecting the quality of the human environment within the Congressional meaning of the National Environmental Policy Act.
Affirmed.
. Cooperation of agencies ; repons ; availability of information ; recommendations ; international and national coordination of efforts
The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—
* * * * *
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;
42 U.S.C.A. § 4332.
. Paragraph 3 states :
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OPINION
SILER, Circuit Judge.
Textileather Corporation, which purchased a vinyl-manufacturing facility with hazardous waste management units (“RCRA units”) from GenCorp Inc., appeals from the district court’s grant of summary judgment to GenCorp in this breach-of-contract and Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) action. We AFFIRM IN PART, REVERSE IN PART, and REMAND the case to the district court for further proceedings consistent with this opinion.
I.
GenCorp owned and operated a vinyl-manufacturing facility from the mid-1950s to 1990, including the operation of several RCRA units, which reclaimed solvent waste. Under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., GenCorp was obligated to obtain permits to operate these units.
In 1989, GenCorp entered into negotiations to sell the vinyl-manufacturing facility to Textileather. In order to address allocation of each side’s liabilities, the parties jointly hired an environmental consulting firm. GenCorp applied for, but had not received, all of the required RCRA permits at the time of its agreement with Textileather.
The negotiations culminated in an Asset Purchase Agreement (“APA”), which specified, in relevant part, GenCorp’s retained liabilities, and contained a provision requiring each party to indemnify and defend against their retained liabilities. Section 9.1.1 of the APA, titled “Retained Liabilities,” provides the following:
Seller will retain responsibility for:
(a) all liabilities, if any, to third persons in respect of the substances, conditions and other matters which are included on the Chemicals List in Section 9.1.6, ... whenever such liabilities may arise, and by whatever third persons may assert such liabilities, specifically including (A) fines, penalties, judgments, awards, settlements, losses, damages, costs, fees (including attorneys’ and consultants’ fees), expenses and disbursements, (B) defense and other responses to any administrative or judicial action (including claims, notice letters, complaints and other assertions of liability) instituted by any third person concerning any such liability, and (C) financial responsibility for (i) cleanup costs and injunctive relief, including any removal, remedial or other response actions, and natural resource damages, and (ii) any other compliance or remedial measures .... and
(b) all liabilities, if any, to third persons (including the types of liabilities identified in (a)(A)-(C) above) in respect of any substance, condition or other matter related to the off-site management (including handling, storage, treatment, recycling, transportation or disposal) of any material after June 14, 1954 and prior to the Closing at any off-site property.
Section 9.1.4, titled “Indemnification,” provides the following:
Seller will indemnify and defend Purchaser with respect to the liabilities retained by Seller as provided in Sections 9.1.1 and 9.1.2 above; provided that Purchaser promptly gives Seller notice of any claims or actions, transmits to Seller copies of all documents and papers received by or served on Purchaser in connection therewith, permits Seller to control the defense thereof, and (at its own expense) fully cooperates with Seller in the defense thereof. Purchaser will indemnify and defend Seller with respect to the liabilities assumed by Purchaser as provided in 9.1.3 above; provided that Seller promptly gives Purchaser notice of any claims or actions, transmits to Seller copies of all documents and papers received by or served on Seller in connection therewith, permits Purchaser to control the defense thereof, and (at its own expense) fully cooperates with Purchaser in the defense thereof.
The parties entered the APA on May 30, 1990, and Textileather became the owner of the vinyl-manufacturing facility on June 4,1990.
Six months after the purchase, Textileather decided to discontinue use of the RCRA units. Textileather began the closure process required by Ohio Administrative Code § 3745-66. However, during Textileather’s efforts to close the RCRA units, the Ohio Environmental Protection Agency (“OEPA”) issued several Notices of Deficiency. These notices led to an extended period of negotiations between OEPA and Textileather. The Notices of Deficiency required Textileather to complete a detailed soil-sampling analysis, as well as follow OEPA-developed, site-specific clean-up standards and implement a ground-water-monitoring program. For a more detailed account of the interactions between Textileather and OEPA, see Textileather v. Korleski, Nos. 06AP955, 06AP956, 2007 WL 2306968 (Ohio Ct.App. Aug. 14, 2007).
In 2001, OEPA approved a closure plan submitted by Textileather. In its letter regarding the approved closure plan, OEPA noted that compliance with this approved plan was expected and would be monitored. Textileather appealed portions of the approved plan. The Ohio Tenth District Court of Appeals affirmed the plan in part and reversed in part with instructions to OEPA to approve a plan consistent with its holding. OEPA has not yet issued a new plan. Throughout the course of the RCRA closure proceedings, including the negotiation of various plans and appeal of the approved plan, Textileather notified GenCorp that it believed, pursuant to the APA, GenCorp was obligated to indemnify and defend Textileather in these proceedings.
Textileather brought this action to recover the costs it incurred in the RCRA closure proceedings. Textileather and GenCorp filed cross-motions for summary judgment, and the district court granted GenCorp’s motion and denied Textileather’s motion. In particular, the district court held the APA to be unambiguous and determined that, under the terms of the APA, OEPA did not constitute a “third party” and Textileather’s RCRA closure proceedings with OEPA did not constitute a “claim or action.”
II.
We review a grant of summary judgment de novo, construing the evidence and drawing all reasonable inferences in favor of the nonmoving party. Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011).
A. Breach of Contract Claim
Textileather argues that the district court erred in its interpretation of the APA because that agreement requires GenCorp to defend and indemnify Textileather for the RCRA closure proceedings. We agree that, under the APA, GenCorp bears responsibility.
Per the terms of the APA, Ohio law governs the dispute. Under this law, contract interpretation is a question of law for determination by the court. Savedoff v. Access Grp., Inc., 524 F.3d 754, 763 (6th Cir.2008); Saunders v. Mortensen, 101 Ohio St.3d 86, 801 N.E.2d 452, 454 (2004). Ohio courts examine contracts in order to determine the intent of the parties, which is presumed to reside in the language of the agreement. Savedoff, 524 F.3d at 763. We must apply the plain language of the contract unless that language is ambiguous. Id. “[C]ommon words appearing in a written instrument will be given their ordinary meaning unless manifest absurdity results[ ] or unless some other meaning is clearly evidenced from the face or overall contents of the instrument.” Foster Wheeler Enviresponse, Inc. v. Franklin Cnty. Convention Facilities Auth, 78 Ohio St.3d 353, 678 N.E.2d 519, 526 (1997) (quoting Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146, 150 (1978), superseded by statute on other grounds). “[A] writing, or writings executed as part of the same transaction, will be read as a whole, and the intent of each part will be gathered from a consideration of the whole.” Id.
1. Third Person
We begin by addressing whether OEPA is a “third person.” Section 9.1.1 of the APA defines GenCorp’s retained liabilities as limited to those owed to “third persons.” The district court reasoned that “the parties cannot provide, nor has the Court found, any case holding that a regulatory obligation incurred by a party’s own business decision is the same as a third-party claim or action.” In considering this issue, the district court explained that OEPA could act as a third party if “OEPA demands Textileather clean-up, but Textileather refuses, and ... OEPA then hires a contractor to come in and do the cleanup. In this situation, ... OEPA would be a ‘third person’ contemplated by the APA who may attempt to sue Textileather to recover its costs.” Because Textileather complied with OEPA’s orders instead of disregarding them, the district court found only first-party regulatory obligations in this case, which it did not view as covered by the APA.
We interpret the phrase “third person” differently. To ascertain the common meanings of terms or phrases not defined in the language of contracts, Ohio courts routinely turn to dictionaries. See, e.g., United Ohio Ins. Co. v. Brooks, No. 12-11-04, 2012 WL 1099821, at *4 (Ohio Ct. App. Apr. 2, 2012) (slip copy) (citing Merriam Webster’s Collegiate Dictionary and Black’s Law Dictionary); Ohio Valley Associated Builders & Contractors v. Rapier Elec., Inc., 192 Ohio App.3d 29, 947 N.E.2d 1261, 1265 (2011). The APA does not define the phrase “third person,” but it is commonly understood to refer to a person or entity who is not a party to an interaction or agreement. See, e.g., Oxford English Dictionary (2002) (“[additional to and distinct from two others already known or mentioned”); Webster’s Third New International Dictionary (2002) (“someone or something that is neither the speaker or writer of the utterance in which they occur nor the one to whom that utterance is addressed”); The Random House College Dictionary (1980) (“anything or anyone other than himself or the one or ones to whom he is speaking”). OEPA was not a party to the APA, so it fairly falls under the common meaning of “third person.”
The remainder of the APA presents further evidence that OEPA should be considered a “third person.” Section 9.1.1 provides examples of the types of third-party liabilities retained by GenCorp, and those include fines, penalties, responses to administrative actions, and financial responsibility for compliance and remedial measures. The examples reflect various forms of liability that governmental agencies, such as OEPA, could require Textileather to incur. Thus, the phrase “third person” must be broad enough to cover entities to whom the aforementioned examples of liability could be owed because the use of these examples illustrates that the parties intended the coverage of Section 9.1.1 to include them.
Additionally, Anderson Development Co. v. Travelers Indemnity Co., 49 F.3d 1128 (6th Cir.1995), is instructive. In that case, a panel of this court explained that, under Michigan law, existing environmental nuisances constitute third-party liabilities. The EPA warned the plaintiff that failure to comply with potentially responsible party (PRP) notices would result in the plaintiffs being liable for all costs associated with removal or remedial action and all other necessary costs incurred in cleaning up the location. Id. at 1130. Subsequently, the EPA determined that a clean-up would be required. Id. The plaintiff cooperated voluntarily. Id. at 1134. The plaintiff had a liability insurance policy and notified its insurer of this claim, but the insurer refused to defend or cover the matter. Id. at 1130. The plaintiff then filed suit against its insurer, seeking a declaration that its liability insurance policies covered all the costs of defense and indemnification resulting from the EPA negotiations and environmental clean-up. Id. The district court granted the defendant’s motion for summary judgment because it found that the letter and consent decree were not a lawsuit and that environmental cleanup costs were not damages. Id. On appeal, we held that when the EPA mandated a clean-up, it constituted a third-party liability. Id. at 1134.
GenCorp’s efforts to distinguish Anderson are not persuasive. First, under Ohio law, GenCorp stepped into the position of an insurer to the extent provided for in the indemnity provision. See Allen v. Standard Oil Co., 2 Ohio St.3d 122, 443 N.E.2d 497, 499-500 (1982) (involving an analogous indemnity provision). Thus, the fact that Anderson arises in the insurance context has no substantive import. Second, Ohio courts consider PRP notices to be claims of liability. See Prof'l Rental, Inc. v. Shelby Ins. Co., 75 Ohio App.3d 365, 599 N.E.2d 423, 430 (1991). For reasons detailed in the next section, this determination brings PRP notices under the APA.
Anderson substantiates our conclusion that OEPA is a third party in this case. In both the case at bar and Anderson, a government agency demanded clean-up. In both cases, the plaintiff sought indemnification based upon a prior contract. Unlike the hypothetical situation suggested by the district court, neither plaintiff refused to comply with the government agency; instead, each plaintiff chose to comply voluntarily. In Anderson, the voluntary nature of the compliance did not change the EPA’s status as a third party relative to the contract to indemnify and defend. 49 F.3d at 1134 (“Thus ... there was indeed liability to a third party — the EPA.”). Similarly, Textileather’s compliance does not change OEPA’s status in this case. The contract’s use of the term “third person” unambiguously includes administrative agencies, such as OEPA.
2. Demands for Liability
Next, the OEPA closure proceedings constitute demands for liability addressed by the APA. The first sentence of Section 9.1.4, the only sentence which discusses GenCorp’s indemnity responsibilities, contains two clauses separated by a semicolon. The first clause explains the liabilities for which GenCorp is obligated to indemnify and defend. The second clause describes notice and filing requirements that Textileather must meet in order for GenCorp to defend it. The clause explaining GenCorp’s obligation to indemnify defines that obligation by reference to Sections 9.1.1 and 9.1.2. The phrase “claims or actions” only appears in the subsequent clause which describes the notice and filing requirements. Based on this structure, the phrase “claims or actions” is best understood to refer back to the liabilities described in the previous clause.
But the term “liability” is not defined in the APA. However, liability is commonly understood to mean a monetary obligation, “something disadvantageous,” or “the state or quality of being liable.” The Random House Dictionary (2012); see The American Heritage New Dictionary of Cultural Literacy (2005) (“[a]n obligation or debt”); Oxford English Dictionary (1989) (“[t]he condition of being liable or answerable by law or equity”). The final closure plan required Textileather to perform various investigations and clean-ups. These measures and their inherent costs to Textileather constitute something disadvantageous. Furthermore, the letter that OEPA wrote to Textileather, which was attached to the approved closure plan, illustrates that Textileather was legally responsible for compliance. In that letter, OEPA states:
[c]ompliance with the approved closure plan ... is expected. Ohio EPA will monitor such compliance. The director expressly reserves the right to take action ... to enforce such compliance and to seek appropriate remedies in the event of noncompliance with the provisions and modifications of this approved closure plan.... You are hereby notified that this action of the director of the Environmental Protection Agency is final and may be appealed to the Environmental Review Appeals Commission pursuant to Ohio Revised Code Section 3745.04.
The plain language of the letter illustrates that OEPA considers this approval to be an administrative action requiring compliance. Further, the fact that Textileather appealed the closure plan demonstrates that the closure plan’s demands for liability were subject to impartial oversight. Because the closure plan required Textileather to take certain actions and thereby incur certain monetary obligations, it is appropriately considered a demand for liability.
The Notices of Deficiency are also liabilities covered by the APA. Notices of Deficiency permit the director of OEPA to require a party to take certain actions. Ohio Admin. Code § 3745-66-12(D)(4) (explaining that “[i]f the director does not approve the plan he will provide the owner or operator with a detailed written statement of reasons for the refusal and the owner or operator must modify the plan or submit a new plan for approval within thirty days after receiving such written statement”). In this case, the Notices of Deficiency required that, among other things, Textileather provide OEPA with a detailed soil sampling analysis, follow OEPA-developed site-specific clean-up standards, and implement a ground-water-monitoring program. Requiring Textileather take these actions necessarily imposed monetary obligations on Textileather. Thus, it is reasonable to consider these notices as demands for liability.
Both of these demands are backed by OEPA’s legal authority. The director of OEPA has the authority to issue Notices of Deficiency and to approve closure plans under Ohio Administrative Code §§ 3745-66-11, 3745-66-12. Both of these rules were promulgated pursuant to the authority granted to the director of the OEPA by Ohio Revised Code Annotated § 3734.12. See Ohio Admin. Code §§ 3745-66-11, 3745-66-12. Under Ohio Revised Code Annotated § 3734.13, the director of OEPA can request that the Attorney General for the State of Ohio institute a civil action to enforce a violation of Section 3734 or a violation of the rules adopted pursuant to the authority given to the director in that chapter. Failure to comply with a closure plan can lead to injunctive relief and civil penalties. Eg., State ex rel. Petro v. Mercomp, Inc., 167 Ohio App.3d 64, 853 N.E.2d 1193, 1201-02 (2006) (affirming a Court of Common Pleas grant of summary judgment to the State of Ohio for claims that the defendant failed to comply with an approved closure plan). Because the orders are backed by legal authority, they are demands for liability.
Construing demands for clean-up as a demand for liability is supported by Ohio case law. Prof'l Rental, Inc., 599 N.E.2d at 427, provides insight into how Ohio Courts would evaluate the communications at issue in this case. The court considered whether a PRP notice imposes liability and determined that the PRP notice was not a lawsuit because it did not impose liability. Id. at 429-30. Rather, PRP notices require a further step to impose liability. Id. However, the court found these notices to be a “claim” of liability and demand for restitution because, unlike lawsuits, PRP notifications do not compel clean-up. Thus, under Ohio law, the distinction between demanding and enforcing a liability is whether a party is compelled to resolve it. Because of the director’s ability to enforce Notices of Deficiency and approve closure plans with one additional step, Ohio courts could reasonably consider these letters to be demands for liability.
The notices in this case are also covered by Section 9.1.1 of the APA. The list of examples of GenCorp’s retained liability in Section 9.1.1(a) demonstrates that the parties intended the term “liability” to be used broadly. The parties specifically stated that GenCorp retained responsibility for “other responses to any administrative or judicial action (including claims, notice letters, complaints and other assertions of liability) instituted by any third person concerning any such liability.” The parenthetical illustrates the breadth of the assertions of liability that the parties intended to include in this contract. Because all of Textileather’s actions were taken in response to either notice letters or other assertions of liability expressly stated in the APA, the unambiguous interpretation of the APA is that its indemnity provisions included the costs associated with these responses. Therefore, the costs at issue in this case were unambiguously based on a third person’s demand for liability and are covered by the plain language of Section 9.1.1.
Last, GenCorp claims that this case should be dismissed under Section 9.1.1(a)(2)(B), which provides:
[GenCorp] will have no responsibility or obligation in respect of: .•.. (2) any substance, condition or other matter included on the Chemicals List in respect of which an action is first asserted after [the deal closed], to the extent that such action: ... (b) is asserted directly because of actions taken by [Textileather] or its employees, except actions (including the filing of any report or document) that [Textileather] is legally obligated to take.
GenCorp argues that OEPA’s orders should be considered “asserted directly because of actions taken by” Textileather, and, therefore, liability for them was not retained by GenCorp. Textileather responds, and we agree, that the liabilities at issue fall within the exception to the exception. Under Section 9.1.1(2)(b) any action that Textileather is legally obligated to take is excluded from this exception. Upon receipt of the final volume of hazardous waste, Textileather was under a legal obligation to close the RCRA units pursuant to an OEPA-approved closure plan. Ohio Admin. Code § 3745-66-13. In order to secure an approved closure plan, Textileather drafted several closure plans. OEPA issued various Notices of Deficiency until finally agreeing to the approved closure plan. Textileather’s actions in response to the Notices of Deficiency and the approved closure plan were legally required by OEPA. Thus, the liabilities at issue stem from actions Textileather was legally obligated to take.
For the foregoing reasons, as to this claim, we reverse the district court’s decision granting summary judgment to GenCorp and instruct the district court to enter summary judgment in favor of Textileather on the legal question of whether the retained liabilities section applies. We remand this case to the district court for proceedings to determine the appropriate allocation of costs and damages under the terms of that provision.
B. CERCLA Claim
Textileather argues that the district court erred in finding that the contract’s language was broad enough to include CERCLA liability. Parties may allocate CERCLA liabilities in their contract. White Consol. Indus., Inc. v. Westinghouse Elec. Corp., 179 F.3d 403, 409 (6th Cir.1999) (citation omitted). Even when a contract was written prior to the passage of CERCLA, we have found that contracts which used sufficiently broad language could transfer CERCLA liability. Id. In White, we noted that Ohio law did not address whether a contract written before CERCLA was enacted could transfer CERCLA liability. Id. at 409-10. After examining other circuit court precedent, we found that a contract allocates CERCLA liability when “it is either specific enough to include CERCLA liability or general enough to include any and all environmental liability.” Id. at 410 (collecting cases). At the time of this decision, no Ohio state court has decided what language is required to allocate CERCLA responsibility, and we believe that Ohio courts would be persuaded that the language required by White is sufficient to transfer CERCLA liability.
We affirm the district court’s decision on this issue on that basis. The APA provides that “[Textileather] will assume [GenCorp’s] liabilities in respect of any substance or environmental conditions relating to the Business except those retained by [GenCorp] provided in Sections 9.1.1 and 9.1.2.” But Section 9.1.1 is expressly limited to liabilities to third persons. By the plain language of this provision, the APA allocates all environmental liabilities, including CERCLA liability.
Textileather argues that the district court is mistaken in its interpretation. It claims that it only assumed liabilities relating to the “Business.” “Business” is a defined term in the APA: “manufacturing automotive soft interior and other products.” Textileather adds the phrase “conducted as of May 30, 1990” to that definition. However, Textileather does not provide a citation for this additional phrase.
There are two reasons why this argument is not persuasive. First, because it is unclear where the “May 30, 1990” addition came from, there is no reason to assume that it was the intent of both parties to define the term “Business” as only including the events occurring after that date. Second, reading the APA as a whole provides further support that all environmental liabilities, except those in Section 9.1.1, were assigned. Unlike Sections 9.1.1(a), 9.1.2, and 9.1.3, Section 9.1.1(b) makes an explicit reference to the time frame of GenCorp’s ownership. Had the parties intended to limit Section 9.1.3 as Textileather contends, it is reasonable to expect similar language to appear in Section 9.1.3. For these reasons, Textileather’s first argument is not persuasive.
Additionally, Textileather argues that we should look to other circuits and district courts in order to hold that the contract does not allocate CERCLA liability. Textileather cites various cases which involve a more limited transfer of liability and where the court did not find that CERCLA liability was transferred. E.g., PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 615 (7th Cir.1998) (holding that due to the existence of a provision which limited the hold-harmless provision, the contract did not extinguish CERCLA claims); Beazer E., Inc. v. Mead Corp., 34 F.3d 206, 216-19 (3d Cir.1994) (construing a more limited provision). Due to our holding in White and the broad and unambiguous allocation of environmental liabilities in the APA, these cases do not justify overturning the district court judgment. Therefore, the district court properly concluded that the allocation and assumption of liability provisions apply to CERCLA claims as well. GenCorp retained only those CERCLA liabilities covered by Sections 9.1.1 and 9.1.2.
III.
For the foregoing reasons, we AFFIRM IN PART, REVERSE IN PART, and REMAND the case to the district court for further proceedings consistent with this opinion.
. Section 9.1.1 applies to chemicals on the Chemicals List in Section 9.1.6, and there is no dispute that some of the chemicals at issue in the closure proceedings are included on the Chemicals List.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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SETH, Circuit Judge.
The plaintiffs commenced this action to challenge the granting of a right of way by the Forest Service to the City of Cheyenne over a part of the Medicine Bow National Forest. The right of way was to construct and maintain facilities to bring water to the City. It was a part of the City’s project started as Stage I in 1976 to bring water from the tributaries of the Little Snake River on the western slope into the North Platte River. This water would then replace water taken by the City from the North Platte. The Stage I facilities had been constructed for the diversion and transportation of the water on rights of way over the forest as theretofore granted by the Forest Service.
The City by a continuation — Stage II — of the project sought to increase the amount of water to be diverted from the Little Snake River and taken to the North Platte. This involved more diversion facilities, additional pipelines and an enlargement of storage facilities. Part of this enlargement necessitated an application for a right of way over the Medicine Bow Forest. This right of way was granted and this action was challenged by this suit.
An environmental impact statement was prepared under 42 U.S.C. § 4332. This was revised, and the Regional Forester issued the Final Environmental Impact Statement with his decision granting the easement under 43 U.S.C. §§ 1761-71. It was a right of way subject to a number of very restrictive conditions as to environmental matters. The final statement contained alternatives and five of these were designated for detailed study. This was done and the record demonstrates that a detailed study was made. The reports contain comprehensive discussions of all the possibilities individually and collectively.
The City found it necessary during the time the application was pending to defer part of Stage II. The increase in the quantity of water from the Stage I level was thereby reduced from that originally proposed. This resulted in a reduction in the size of some of the facilities. The Regional Forester considered this change and found no different impact on the environmental considerations resulted therefrom.
The challenge by the plaintiffs named the several federal officiáls responsible for taking action under the statutes and also named the City. The complaint is based on the Endangered Species Act (this claim has been dropped), NEPA, the Upper Colorado River Basin Compact, the decree in Nebraska v. Wyoming, and the Federal Land Policy and Management Act (FLPMA) (43 U.S.C. § 1761).
The trial court dismissed all claims based on the Nebraska v. Wyoming decree, the Compact (except some NEPA aspects) and the Endangered Species Act. We agree with the order of dismissal.
Many of the arguments of plaintiffs at trial and asserted errors in the granting of the right of way are arguments directed to the legality of the water rights of the City and whether diversions could be made. For example, plaintiffs assert the diversions from the North Platte, when the water reaches that point, violate the decree in Nebraska v. Wyoming. Also, they argue that diversions from the Little Snake River violate the Upper Colorado River Compact. These are not issues which had to be considered by the Regional Forester. The right of way for a part of Stage II was granted implicitly and explicitly without a determination of the water rights or authority or need to divert water. Plaintiffs thus advance as issues their views on water right issues which cannot be and were not determined by the Forest Service.
As to the challenge under the Compact we again agree with the trial court that the right of way grant had nothing to do with the question as to whether Wyoming could move the water out of the Snake River Basin. The Regional Forester had no authority to make such a determination, and explicitly recited that he did not do so. The plaintiffs assert no injury to them has resulted.
A similar conclusion must be reached as to the assertions that the action violates Nebraska v. Wyoming as to the withdrawal of water from the North Platte. The plaintiffs have alleged no injury to them from such action, and have demonstrated no interest to support a claim of standing, and it was not an issue for the Forest Service.
The trial court granted defendants’ motion for summary judgment on the remaining issues which concerned NEPA and the Federal Land Policy Act. The plaintiffs asserted deficiencies in the final statement and its evaluation by the Regional Forester.
The record demonstrates that the final statement developed and discussed the details of at least five alternatives. The Forester, as mentioned, discussed them at length. The scope of judicial review of the final statement is described in Environmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368 (10th Cir.); Save our Invaluable Land (SOIL), Inc. v. Needham, 542 F.2d 539 (10th Cir.); and National Helium Corporation v. Morton, 486 F.2d 995 (10th Cir.). The trial court acted within the prescribed scope of review. The environmental consequences have thus been examined carefully and the agency has made its choice of action. Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576. All feasible, reasonable alternatives were presented and discussed. The suggestion of alternatives is within the discretion of the agency subject to the standard review. It is not necessary to include every possible alternative. We said in Environmental Defense Fund, Inc. v. An-drus, 619 F.2d 1368 (10th Cir.), the “environmental effects of all alternatives need not be exhausted.” Again, the presentation of alternatives is within agency discretion originally and is refined and adjusted if necessary during the discussions, evaluations and hearings.
There is no showing that the action by the agency was arbitrary, capricious, or an abuse of discretion. Sabin v. Butz, 515 F.2d 1061 (10th Cir.).
We find nothing in Parker v. United States, 448 F.2d 793 (10th Cir.), contrary to the action herein taken by the trial court as appellants urge. Parker was a statutory construction case as the opinion makes very clear and no factual comparison can be made.
The appellants sought to disqualify the trial judge on the ground that he made a $25 contribution before this suit was filed to the group in Cheyenne seeking to inform the public about a bond issue proposed for the expansion of the City’s water system. We have carefully examined the facts and the arguments on the recusal issue and must conclude that the plaintiffs have not met their burden to show that the circumstances meet the standard set forth in United States v. Irwin, 561 F.2d 198 (10th Cir.) (a 28 U.S.C. "§ 144 case), in part, as follows:
“The bias charged must be of a personal nature and must be such as would likely result in a decision on some basis other than what the judge learned from his participation in the case.”
For the trial court this case concerned the actions and reports prepared by the federal defendants and to determine under the limited standards of review whether their actions met the federal standards or were arbitrary or capricious. No personal bias against the plaintiffs nor for or against the federal officials was advanced. We must conclude that there is no merit to the proposition advanced by plaintiffs that the trial judge should have recused himself.
AFFIRMED.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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JOHN R. GIBSON, Circuit Judge.
The City of Little Rock, Arkansas, and various city officials appeal from the district court’s order enjoining them and their contractor, Joyner-Ford & Burke Construction Company, from proceeding with construction of a bridge over Jimerson Creek until the Army Corps of Engineers has prepared an environmental impact statement (EIS) regarding its grant of a permit to build the bridge. 761 F.Supp. 640. The district court held that the Corps had ignored the considerable effect increased traffic resulting from the bridge and its connected project would have on recreational use of Murray Park, Rebsa-men Park, and other recreational areas on the south bank of the Arkansas River at Little Rock. The City argues that the Corps considered the effect of the traffic and that this court has no power to require the Corps to do anything further. Alternatively, the City requests that this court remand the matter to the Corps instead of affirming the order requiring an EIS. We affirm the judgment of the district court.
In 1987 the voters of Little Rock approved a capital improvement bond issue to build streets. At the time of the bond election, the city’s list of top twenty street projects included an extension of Rebsa-men Park Road permitting access to Murray Lock and Dam and Murray, LaHarpe View and Rebsamen parks from the west, where previously the only entrance had been from central Little Rock. These parks run alongside the Arkansas River near downtown Little Rock. The City has plans eventually to connect these parks to others in a “chain of parks.” After the election, the City submitted an application to the Corps for a permit to put fill in along Jimerson Creek, a tributary of the Arkansas River, which would have to be bridged as part of the road extension. It was necessary to apply for a permit because of section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 (1988), and section 404 of the Clean Water Act, 33 U.S.C. § 1344 (1988). Under the National Environmental Policy Act (NEPA), federal agencies must prepare an EIS before approving “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1988). The Corps determined that, though the only action affecting national waters was the placement of the fill in Jimerson Creek, NEPA required the Corps to consider the environmental impact on the entire area of “the proposed road extension plus the existing Rebsamen Park Road from gateway to gateway.”
In connection with its review, the Corps gave notice to various state and federal agencies. In response to the notice, the Arkansas Department of Parks and Tourism identified as a potential problem the effect of increased traffic on recreational use of the Parks. The Department gave conditional approval to the project:
The Department of Parks and Tourism will support the referenced project if the project’s applicant, the City of Little Rock, makes every effort to ensure the safety and enjoyment of the users of this recreational area.... This Department recommends speed limits along the length of Rebsamen Park Road be set at no greater than 35 mph and reduced to 20 mph through the activity areas. Much of the danger introduced from this road extension would result from high speed traffic. As the plans are currently proposed, bicycles and pedestrians will be exposed to incredible risks if cars are passing at high speeds.
Joint Appendix at 360.
The Corps also gave public notice of the permit application, and received 64 public responses, 12 in support of the proposed road, 49 opposed to it, and 3 not expressing an opinion. The principal concern stated in the public responses was that the new road would be used as a commuter route from West Little Rock to downtown and spoil recreational use of the areas though which it passed. The Corps sent a letter to Little Rock's mayor, asking that the City provide traffic volume statistics for the road as it existed before the proposed extension and for the road with the proposed extension. The Corps also asked for average travel times from western Little Rock to downtown on the proposed Rebsamen Park Road compared with travel times for the same trip on the existing parallel route, Cantrell Road.
The Mayor responded that traffic on the existing Rebsamen Park Road was about 2,500 vehicles per day (vpd) on the weekend and 2,900 vpd on week days. The City estimated travel times from west Little Rock to downtown at 12.5 to 15 minutes on Cantrell Road and 13 minutes “or greater” on the proposed Rebsamen Park Road. If the City maintained a posted 35 mph speed limit on the proposed Rebsamen Park road, the City projected traffic volume on the road at 4500 vpd shortly after completion. The City projected traffic volume in the year 2010 as 19,000 to 30,000 on Cantrell Road and 8,600 to 9,000 on the proposed Rebsamen Park Road if the speed limit were 35 mph. If the speed limit on Rebsa-men Park Road were 45 mph, the prediction for 2,010 would be 15,000 vpd or greater.
The Corps then hired Peters & Associates, consulting engineers, to study the effect of the road extension. Peters issued a report concluding that the traffic volumes anticipated by the City would include commuter traffic and would pose a threat to the recreational use of the areas along the Arkansas River. The report stated:
Traffic volumes increasing to only 4,500 vpd and compliance with a 35 MPH speed limit would be tolerable on the roadway as planned_ The Pulaski Area Transportation Study (PATS) has made volume projections for this section of Rebsamen Park Road to be between 8,600 and 9,000 vpd. If volumes of this magnitude materialize, it will most likely be a result of increased thru traffic use not a greater than three-fold increase in use of recreation facilities_ As a two-lane road the facility can accommodate, from a capacity standpoint, traffic volumes of the magnitude projected by PATS, but likely not without adverse impact on the recreational uses it is intended to serve. Although the route may not attract much thru traffic initially, as traffic volumes increase and congestion worsens on arte-rials and expressways, motorists will seek what they perceive as more attractive alternate routes, such as Rebsamen Park Road, even though travel times may not be significantly different. I believe this will eventually occur, probably over a five to six year period after completion, and volumes could easily grow to 8,000 to 9,000 vpd as projected by PATS.
Joint Appendix at 391. Peters made some remedial suggestions, including providing separate bridges over Jimerson Creek for autos, on the one hand, and bicycles and pedestrians, on the other; and “curvilinear alignment” and use of stop signs on Rebsa-men Park Road.
The City responded to the Peters report by asking' the Arkansas Highway and Transportation Department to project traffic volumes for the proposed road. The Department came up with a figure for the year 2010 of 5,384 to 9,265 vpd depending on the respective speeds at which traffic could travel on Rebsamen Park Road and Cantrell Road. (Traffic volume on Rebsa-men Park Road would increase in response to a higher speed limit on Rebsamen Park Road and a lower speed limit on Cantrell Road.) The City rejected the Peters proposal for a separate bridge for pedestrians and cyclists and the inclusion of sharp curves and stop signs in the road to slow down traffic. The City proposed “one mild curve near the [Murray Lock and Dam] to reduce through traffic.” Joint Appendix at 414.
Another response to the Corps’ public notice came from the Corps’ own resident engineer, who recommended against the road because it would bring in commuter traffic, posing a security threat to Murray Lock and Dam and creating traffic control problems.
Because of the unresolved opposition to the City’s plans, the Corps held a public hearing on the permit application to enable the Corps to determine whether an EIS would be necessary.
At the public hearing those who spoke in favor of the proposed road were primarily people from nearby neighborhoods who saw the proposal as a way to relieve their own streets of excessive traffic. These citizens referred to the residential streets near the park as “freeway[s]”. One said the “traffic is insufferable.” Many citizens who identified themselves as park users opposed the road extension on the grounds that it would introduce commuter traffic into the parks and ruin the recreational value of the area. They stated that they currently used the area for jogging, bicycling, bird watching, walking and nature observation. Several stated that even on the existing road the City did not enforce the posted 45 mph speed limit and motorists drove as fast as 60 mph.
Corps personnel’s first draft of its Environmental Assessment made several new points regarding the traffic situation. First, the draft stated that since the commute time to downtown would be about the same for the proposed road and Cantrell Road and since Cantrell Road had numerous stoplights, it was probable that many commuters would use the proposed road instead of Cantrell Road. Second, the draft stated that 7,550 vpd was the absolute limit of traffic volume before people would be unable to get on and off the proposed road safely. Moreover, short of the 7,550 number, many people would consider it unsafe to turn on to the road from the parks at some lesser volume and quit using the parks. The Peters report estimated that traffic would reach this volume within five years of completing the road, and the Corps personnel preparing the first draft wrote that a linear interpolation of the PATS study would predict such a volume within seven to eight years of completion. The City’s design volume for the road was 8,000 vpd with a 35 mph speed limit. The first draft stated:
The city considers Rebsamen Park Road to be a collector street and in their Master Street Plan, the design standards indicate a service traffic volume of 5,000 AVPD with a 36-foot pavement width for collectors. With the proposed 22-foot paved roadway for the Rebsamen Park Road extension and the design traffic volume of 8,000 AVPD, the proposed road will exceed their collector design standards in both these categories shortly after opening the road. The result will be those using the road including the recreational users will start to feel unsafe and some will stop using the recreational facilities along the road.... [T]he recreation benefits will start decreasing shortly after the road opens and continue to decrease as the through traffic continues to increase. By the year 2010, the through traffic component by itself would have increased to where access to or exit from the recreation facilities would not be possible during peak commute periods, thus severely impacting recreational benefits.
Joint Appendix at 642.
The first draft imposes numerous special conditions on the City to obtain the permit, including posting and strictly enforcing a 25 mph speed limit and monitoring traffic so that if through traffic exceeds 1,000 vpd, the City would have to close the road during rush hour.
The second draft of the Environmental Assessment concluded: “After weighing the benefits ... I have concluded that the adverse impacts of the project on recreation and other users [sic] outweigh the benefits of the proposed project and that the roadway would be contrary to the public interest.” Joint Appendix at 686.
The third and final draft of the Environmental Assessment, however, concluded that the proposed road would have “no significant impact on the quality of the human environment” and therefore finds no need to prepare an EIS. The special conditions from the first draft concerning speed limit, traffic measurement and closing the road at rush hour are absent. No explanation is articulated for this change in position. The Corps' Colonel McCloskey adopted the third draft and issued the permit to place the fill in Jimerson Creek.
The Audubon Society and several individuals (for convenience’ sake we will refer to the plaintiffs collectively as the Audubon Society) sued the City and the Corps to enjoin the project and later amended the complaint to join the contractor the City had hired to build the project. The district court granted a temporary restraining order, enjoining construction of the Jimerson Creek bridge. The parties agreed to submit the case to the court on cross motions for summary judgment.
The district court reviewed the Corps’ decision that an EIS was not necessary under the “arbitrary or capricious” standard of review, looking to see “ ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Audubon Society v. Dailey, 761 F.Supp. 640, 649 (E.D.Ark.1991) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)). The district court concluded that the administrative record showed the traffic problem resulting from the project would “significantly affect the quality of the human environment,” thereby triggering the requirement that the Corps prepare an EIS. Id. at 650.
While the COE [Corps of Engineers] might have been taking a “hard look,” the COE ultimately chose to ignore what it saw. All the facts and scientific projections showed the tremendous increase in traffic that will occur severely impacting the recreational uses of the area. The City’s wishful thinking that the commuting public will choose Cantrell with its approximately eight more stoplights for the comparable distance and travel time over Rebsamen Park Road is without justification. The COE’s misplaced reliance on the City’s empty assurances that it will enforce the 35 mph speed limit flies in the face of the COE’s information that the current limits are not being enforced and the public will use a speed limit 10 mph over the existing limits. The COE was not relying on reasonable opinions of any qualified experts in concluding the impacts of the project were not significant when its own consultant and personnel had made reasoned decisions to the contrary based on their evaluations of the available data.
The Court must conclude that the COE’s decision that the impacts of the project lack significance on the quality of the human environment and the permit should issue is not founded on a reasoned evaluation “of the relevant factors” and that the COE’s decision to not prepare an EIS was a “clear error of judgment.”
Id. at 649-50. The court entered an order suspending the grant of the permit and enjoining construction until an EIS has been completed. Id.
I.
At the threshold we must determine the standard governing our review of the Corps’ decision that the project would “not significantly affect the quality .of the human environment.” The City argues that in applying the “arbitrary and capricious” standard as prescribed in Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and Goos v. ICC, 911 F.2d 1283, 1292 (8th Cir.1990), we must look only to see whether the Corps gathered information on the relevant subjects, not whether the Corps’ decision was consistent with the information so gathered. The Audubon Society, on the other hand, argues that we should apply a de novo standard.
The City argues that NEPA is entirely procedural and that a reviewing court’s only role is to ascertain that the agency in question took certain procedural steps at each juncture in approving an action. The City cites Missouri Coalition for the Environment v. Corps of Engineers, 866 F.2d 1025 (8th Cir.), cert. denied, 493 U.S. 820, 110 S.Ct. 76, 107 L.Ed.2d 42 (1989), arguing that Audubon must show the administrative record omitted “facts ... which, if true, would show that the permitted project could have a substantial impact on the environment.” 866 F.2d at 1032. We are not sure how much of Missouri Coalition has survived Marsh. See our discussion in Goos, 911 F.2d at 1291-92. Further, we do not read Missouri Coalition as restrictive-3y as the City would argue. Though language in Missouri Coalition seems to refer to omission of facts from the record as the only sort of error justifying reversal of an agency, actually it is only one of several ways in which the agency’s determination can be flawed.
The District of Columbia Circuit has listed four factors to be considered in determining whether an agency’s decision to forego an EIS is arbitrary and capricious:
(1) whether the agency took a ‘hard look’ at the problem;
(2) whether the agency identified the relevant areas of environmental concern;
(3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and
(4) if there was impact of true significance, whether the agency convincingly established that changes in the project sufficiently reduced it to a minimum.
Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 681-82 (D.C.Cir.1982); Sierra Club v. United States Dept. of Transp., 753 F.2d 120, 127 (D.C.Cir.1985). While the City would limit our inquiry to the second factor in Cabinet Mountains, the district court’s determination properly focussed on the third factor — whether the conclusion of insignificant impact is sufficiently convincing.
Though the formulation of the standard of review is more general, it is also clear from the language in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971), that we are not limited (as the City would have it) to determining whether the agency considered the “relevant factors.” Under Overton Park, we must also reverse if there has been a “clear error of judgment”. Id. Under this standard, the court has the responsibility to verify that the agency’s conclusion follows from the premises the agency relies on.
We therefore conclude that the district court correctly understood its role in conducting review under the “arbitrary and capricious” standard.
The Audubon Society, on the other hand, argues that this case should not be reviewed under the “arbitrary and capricious” standard, but instead under the de novo standard. The Society relies on language from Marsh v. Oregon Natural Resources Council, in which the Court remarked that the arbitrary and capricious standard governed the case before it, but distinguished its case (“this dispute involves primarily issues of fact”) from one that “turn[ed] on the meaning of the term ‘significant’ or on an application of this legal standard to settled facts.” 490 U.S. at 377, 109 S.Ct. at 1860.
Though Marsh leaves open the possibility that some questions arising under NEPA may be reviewed under a different standard, the agency’s determination in this case involves mixed questions of fact and law: for instance, determining the traffic volume that would so interfere with use of the land adjacent to Rebsamen Park Road to constitute a “significant” impact. Our circuit and others have reviewed agency treatment of such questions under the deferential arbitrary and capricious standard. See, e.g., Lockhart v. Kenops, 927 F.2d at 1033-34; State of North Carolina v. Federal Aviation Administration, 957 F.2d 1125, 1133 (4th Cir.1992); Sierra Club v. United States Dep’t of Transp., 753 F.2d at 126-29 (interpreting the impact of a given condition is left to the judgment of the agency); see generally, Childress and Davis, § 15.07 at p. 15-40.
II.
The next question before us, then, is whether the Corps’ decision that the road extension would not significantly affect the human environment was arbitrary and capricious. This question we break into two subquestions: (1) does the Environmental Assessment make a convincing case that the impact of the permit as issued will be insignificant, and (2) is the Gity’s post judgment offer to be bound by certain mitigating conditions adequate to cure any defect in the permit as issued?
There seems to be no dispute that if the road extension were made available without special regulation of its use, the effect would be a large increase in traffic through the area and a significant impact on the quality of the human environment. The Corps acknowledged this problem in its Environmental Assessment:
An expected large increase in traffic through the area, especially through traffic, could adversely affect recreational uses in the parks by interfering with ingress and egress. Ultimately, control of traffic speed and volumes through the area is the responsibility of local officials, not the federal government. Accordingly, it is expected that City of Little Rock officials will take whatever traffic control measures are appropriate and necessary to control traffic speeds and volumes and provide safe recreational opportunities for all.
While there are potential adverse impacts to the project, particularly a degraded recreation experience due to increased traffic, due diligence by the applicant, the city of Little Rock, in the normal execution of its duties should minimize these impacts.
Joint Appendix at 704; 708.
The troublesome question then is adequacy of mitigating measures to keep the impact below the level of significance.
The permit as issued contains as special conditions neither a speed limit, nor any requirement of speed limit enforcement, nor any provision for closing the road off at rush hours. The Environmental Assessment stated that the City agreed to establish and enforce a 35 mph speed limit, but it did not make this a condition of the permit. Other mitigation measures included the City’s agreement to place gateways with stop signs at the west entrance to the parkway and the east entrance to Rebsa-men Park, and inclusion of a “mild” curve in the road design. With a speed limit of 35 mph the Peters report indicated traffic volume on the road would be 8,000 to 9,000 autos per day by 1995. Even the City estimated that volumes would reach this level by 2010. There was abundant evidence that the City is not able to enforce its 45 mph speed limit on the road as it exists and that traffic moves as fast as 60 miles per hour on Rebsamen Park Road now.
Thus, the Environmental Assessment itself comes very close to explicitly acknowledging that without enforcement of the 35 mph speed limit the project would have significant impact on the environment, yet the administrative record shows that the entity responsible for enforcing the speed limit has not enforced it on the existing road.
An agency may certainly base its decision of “no significant impact” on mitigating measures to be undertaken by a third party. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985). In such a case, the mitigating measures need not be a condition of the permit (although this, helps, see State of Louisiana v. Lee, 758 F.2d 1081, 1083 (5th Cir.1985), cert. denied, 475 U.S. 1044, 106 S.Ct. 1259, 89 L.Ed.2d 570 (1986)), nor even a contractual obligation, see Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir.1982). However, the mitigating measures must be “more than mere vague statements of good intentions.” Id. at 860-61; Lee, 758 F.2d at 1083. Of course, the result of the mitigating measures must be to render the net effect of the modified project on the quality of the environment less than “significant.” See Cabinet Mountains, 685 F.2d at 682.
In this case, the evidence from the public hearing gave every reason to doubt that the City would or could enforce the speed limit. Moreover, the Corps’ lawyer made clear at argument before the district court that under the permit as issued, enforcement of the limit is left entirely to the City.
Furthermore, even at the 35 mph limit, the Corps’ first draft of the Environmental Assessment indicates that an 8,000 to 9,000 vpd volume of traffic would have an adverse effect on park users, since the road would be so busy at 7,550 vpd that they would not be able to get on and off the road safely, and many would be discouraged from using recreational facilities at some point before that.
With this evidence, we have no hesitation in concluding that the district court did not err or abuse its discretion in concluding that the Corps acted arbitrarily when it said that the project would have no significant impact on the human environment. As the district court aptly observed, the Corps, while taking a hard look, chose to ignore what it saw.
Finally, the City argues that in lieu of affirming the district court’s judgment, we should order the district court to remand to the agency or the district court for further deliberations on the necessity of an EIS. In a Rule 60(b) motion filed with the district court after it had taken this appeal, the City proposed that the Corps could issue a revised permit including four special conditions which would be “part of the permit and could be the basis for revocation of the permit if they are not followed”:
The City shall develop a traffic monitoring and measuring plan for Rebsamen Park Road between the gateways and submit the plan to the District Engineer within three months of the permit issuance period_ If traffic measurements indicate that the thru traffic component on Rebsamen Park Road exceeds 325 average vehicles per hour during the hours of 7:00 to 9:00 a.m. and 4:30 to 6:30 p.m., the city shall take appropriate measures to reduce the number below 325 thru vehicles per hour....
The City shall post and strictly enforce a 35 mph speed limit on Rebsamen Park Road between the gateways....
The City shall place stop signs for entering and exiting at both the eastern and western gateways of the project....
If the City fails to implement or comply with any of the special conditions of this permit or if there is a pattern of non-enforcement of any of the conditions by the City, the Little Rock District Corps of Engineers may take appropriate measures to assure compliance or may take appropriate measures to revoke or suspend this permit and require removal or permanent closure of the Jimmerson Creek Bridge.
Joint Appendix at 297. The City suggests that we remand to the district court for consideration of the Rule 60(b) motion. In the same vein, the City argues that even if we declare the permit as issued fails to comply with NEPA, the court should remand to the Corps for further deliberation on the necessity of an EIS, rather than directly requiring one.
Of course, the Rule 60(b) motion is neither addressed to us, nor affects our jurisdiction, Taumby v. United States, 919 F.2d 69, 72 (8th Cir.1990). The district court has jurisdiction over the motion and the responsibility to decide it. On the record before us, and with only the order of the district court before us to review, we conclude that the judgment of the district court requiring an EIS was not in error.
III.
The Audubon Society makes a number of other attacks on the Corps’ decision to issue the permit. In light of our holding that the Corps cannot issue the permit without an EIS, it is not necessary for us to deal with these additional arguments.
We affirm the judgment of the district court.
.The individual defendants associated with the City of Little Rock are Jim Dailey, Cyril Holl-ingsworth, John Lewellen, Sharon Priest, Hampton Roy, Lottie Shackleford, and Tom Dalton.
. The Honorable George Howard, Jr., United States District Judge for the Eastern District of Arkansas.
. The Army Corps of Engineers and its Colonel, Charles C. McCloskey, are parties defendant to the injunction and appealed it, though they have since dismissed their appeal. The Audubon Society and the individual plaintiffs moved to dismiss the appeal as moot. We took the motion with the cases, and now deny it without discussion, since there is obviously still an injunction running against the City of Little Rock.
. In an "Environmental Assessment,” an agency sets out its evidence and analysis for determining whether an EIS is necessary. 40 C.F.R. § 1508.9 (1991).
. The individual plaintiffs are Alice B. Andrews, David F. Gruenewald, Barry H. Haas, and Robert H. McKinney.
. The parties do not dispute that the other component determining the need for an EIS, “major federal action," exists in this case.
. We are, of course, also reviewing the decision of the district court. Since the district court granted summary judgment, our review of its decision is plenary. Sabine River Auth. v. United States Dept. of Int., 951 F.2d 669, 679 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 75, 121 L.Ed.2d 40 (1992). See also Lockhart v. Kenops, 927 F.2d 1028, 1032 (8th Cir.), cert. denied, 116 U.S. 761, 112 S.Ct. 186, 116 L.Ed.2d 148 (1991).
. The Cabinet Mountains catalog of factors for deciding when a decision to forego an EIS is arbitrary and capricious corresponds roughly with the checklist for "arbitrary and capricious" review of agency rulemaking:
Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass 'n. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). See generally, Steven Childress & Martha Davis, Federal Standards of Review § 15.07 (2d ed. 1991).
. We determine the meaning of “significantly" in 42 U.S.C. § 4332 by reference to regulations of the Council on Environmental Quality, 40 C.F.R. § 1508.27 (1991). Under the regulations we consider both the context and intensity of an effect to decide if it is "significant.” Intensity is evaluated by reference to (inter alia):
(2)The degree to which the proposed action affects public health or safety. (3) Unique characteristics of the geographic area such as proximity to ... park lands_ (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial_
40 C.F.R. § 1508.27.
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OPINION
POLITZ, Circuit Judge.
Tillamook County appeals the denial of its motion for preliminary injunction to prevent intervenor-defendant the City of McMinnville, Oregon, from continuing the enlargement of its existing municipal water supply reservoir along the Nestucca River. The County complains that the finding by the United States Army Corps of Engineers that the proposed expansion would not have a significant environmental impact was arbitrary and capricious, and that the district court abused its discretion in denying the preliminary injunction. Concluding that the Corps conducted an adequate investigation and that the district court did not abuse its discretion, we affirm.
BACKGROUND
The existing reservoir is situated at the headwaters of the Nestucca River, approximately twelve miles from the City, and is an integral component of the municipality’s water supply system. The City seeks to expand the reservoir to avert water shortages caused by an increasing population. The initial water shortage is expected to occur sometime between 2002 and 2020, depending upon rain conditions. The proposed expansion would entail raising the existing dam by 30 feet to increase the storage capacity of the reservoir. It would directly impact 13.26 acres of navigable waters, 12.7 acres of which would be affected by filling the reservoir after construction of the new dam and spillway in 2002. Because the expansion includes the placement of dredge or fill materials into navigable waters of the United States, the Commission was required to obtain a section 404 permit from the Corps.
In seeking to obtain federal and state authorization for the proposed expansion of the reservoir, the Water Commission of the City of McMinnville applied for a dredge or fill permit from the Army Corps of Engineers to fill 2.4 acres of navigable waters under section 404 of the Clean Water Act. The issuance of a section 404 permit is considered a major federal action under the National Environmental Policy Act (“NEPA”), therefore, the Corps was required to prepare a draft and final environmental assessment of the project.
The Corps prepared an initial assessment and, following a period of public comment and a review process, determined that the project would not have a significant impact on the environment. In February 2001, the Corps issued its final environmental assessment and Finding of No Significant Impact, and a section 404 permit to the Commission to place fill material in 2.36 acres of navigable waters. After the issuance of the section 404 permit, the Commission began construction of the reservoir and at the time of this appeal had completed the initial stages of construction, required under the permit’s terms to be completed prior to September 15, 2001. Under the Commission’s current construction schedule, the expanded reservoir will be filled in early 2003.
In June 2001, the County brought the instant action against the Commission and moved for a temporary restraining order and preliminary injunction, claiming that the Corps failed to comply adequately with the NEPA and the Clean Water Act in the course of issuing the section 404 permit. The district court denied the temporary restraining order and we dismissed the County’s appeal for lack of appellate jurisdiction.
In September 2001, the district court denied the County’s motion for a preliminary injunction. On October 3, 2001, the County filed the instant appeal and moved for an emergency stay pending appeal which we denied in November 2001.
ANALYSIS
Preliminary Injunction Standard
We review the denial of a motion for preliminary injunction for abuse of discretion. A district court abuses its discretion when it bases its decision on an erroneous legal standard or clearly erroneous findings of fact. To obtain preliminary injunctive relief, the movant must show: (1) a probability of success on the merits combined with a possibility of irreparable harm if the relief is denied; or (2) serious questions are raised and the balance of hardships tips sharply in the movant’s favor. These are not alternative tests but, instead, are extremes of a single continuum.
Probability of Success on the Merits
The County contends that the Corps’ decision not to prepare an EIS based on its conclusion that there would be no significant environmental impact violated the NEPA because of the significant and uncertain impacts of the proposed expansion. The County adds that even if an EIS would not be required under the NEPA the environmental assessment failed to evaluate adequately alternatives and to describe mitigation measures under the proposed action. We are not persuaded.
A. Requirement of an EIS
We review an administrative agency’s decision not to prepare an EIS to assure that the decision was not arbitrary and capricious. We must determine whether the “agency has taken the requisite hard look at the environmental consequences of its proposed action” and has conducted a “reasoned evaluation of the relevant factors.” We will reject an agency’s decision “only if the [agency] committed a clear error of judgment.”
The NEPA is a procedural statute intended to ensure environmentally informed decision-making by federal agencies. It requires those agencies to prepare an environmental impact statement for major federal actions “significantly affecting the quality of the human environment.” The statute is not meant to “mandate particular results” but to provide a process to ensure that federal agencies take a “hard look” at the environmental consequences of proposed acts. When an agency makes a decision subject to the NEPA’s procedural requirements, “the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive.
Specific guidance for when a full environmental impact statement must be prepared is provided by regulations promulgated by the Council on Environmental Quality. The regulations require the preparation of an environmental assessment that “briefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” A full environmental impact statement is not required if the agency concludes after a good hard look that the proposed action will not have a significant environmental impact. Additionally, an agency’s decision to forego preparation of an EIS may be justified, even in the presence of adverse environmental impacts, if the agency adopts mitigation measures in response to identified impacts.
B. Adequacy of the Environmental Assessment
The County complains that the environmental assessment prepared by the Corps failed to adequately describe mitigation measures pertaining to sediment and erosion control and dam safety and analyze an adequate range of alternatives. These contentions lack merit. While the Corps was required to develop the proposed mitigation measures “to a reasonable degree,” it was not required to develop a complete mitigation plan detailing the “precise nature ... of the mitigation measures” nor were the measures required to “completely compensate for adverse environmental impacts.” The Corps adequately described specific mitigation measures in the environmental assessment and section 404 permit which require the permittee to comply with dam safety regulations established by the Oregon Water Resources Department, and to take certain steps to prevent erosion at wetland erosion sites and compensate for wetland loss caused by reservoir expansion.
The Council on Environmental Quality regulations require that an environmental assessment “include brief discussions” of the need for the proposed action, alternatives as required by the NEPA, and “the environmental impacts of the proposed action.” Only “practicable alternatives” need be discussed. We review “an agency’s range of alternatives under a ‘rule of reason’ standard which requires an agency to set forth only those alternatives necessary to permit a reasoned choice.” The Corps considered a number of alternatives in evaluating the City’s water needs, including: (a) no action; (b) four alternative dam locations in the region; (c) differing reservoir levels; (d) phased project implementation; and (e) alternative water supply sources including other surface water sources, ground water, and conservation. The Corps rejected these alternatives in its final environmental assessment for various reasons. Under the circumstances, we cannot say that the Corps failed to take the necessary hard look at the environmental impact of the proposed expansion.
The judgment of the district court is AFFIRMED.
. 33 U.S.C. § 1344.
. Id.
. 42 U.S.C. § 4332(2)(C).
. The 2.36 acres were comprised of 1.8 acres of open water and .56 acres of wetlands.
.The complaint sought relief under the Administrative Procedure Act, 5 U.S.C. § 706, alleging that the Corps failed to comply adequately with the NEPA and the Clean Water Act in issuing the section 404 permit.
. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 730 (9th Cir.1999).
. Id.
. Los Angeles Mem’l Coliseum Comm’n v. NFL, 634 F.2d 1197, 1201 (9th Cir.1980).
. Alaska v. Native Vill. of Venetie, 856 F.2d 1384, 1388-89 (9th Cir.1988).
. 5 U.S.C. § 706(2)(A).
. Greenpeace Action v. Franklin, 14 F.3d 1324, 1331-32 (9th Cir.1993) (citations omitted).
. Cal. Trout v. Schaefer, 58 F.3d 469, 473 (9th Cir.1995) (citations omitted).
. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
. 42 U.S.C. § 4332(2)(C).
. Robertson, 490 U.S. at 350, 109 S.Ct. 1835.
. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct 497, 62 L.Ed.2d 433 (1980) (citations omitted).
. 40 C.F.R. § 1500.2 et seq.
. Id. § 1500.2(a)(1).
. 40 C.F.R. § 1508.13; LaFlamme v. FERC, 945 F.2d 1124, 1127 (9th Cir.1991).
. Wetlands Action Network v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1121 (9th Cir.2000), cert. denied, - U.S. -, 122 S.Ct. 41, 151 L.Ed.2d 14 (2001).
. Id.
. 40 C.F.R. § 1508.9(b).
. See id. § 230.10(a). "An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2).
. Northwest Environmental Defense Center v. Bonneville Power Admin., 117 F.3d 1520, 1538 (9th Cir.1997) (citations omitted).
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TYMKOVICH, Chief Judge.
Sierra Club brought a citizen suit seeking civil penalties against Oklahoma Gas and Electric . Company “(OG & E)” for alleged violations of the Clean Air Act. Sierra Club asserts that in March and April 'of 2008, OG & E, the owner and operator of a coal-fired power plant in Muskogee, modified a boiler at the plant without first obtaining an emission-regulating permit as required under the Act. Because Sierra Club filed its action more than five years after construction began on the plant, the district court dismissed its claim under Rule 12(b)(6) as barred by the statute of limitations. The court also dismissed Sierra Club’s claims for declaratory and injunctive relief because these remedies were predicated on the unavailable claim for civil penalties..
We agree with the district court and conclude that Sierra Club’s claim for civil penalties is statutorily time-barred under 28 U.S.C. § 2462 because it was brought more than five years after the date when the cause of action first accrued. In addition, Sierra Club’s claims for declaratory and injunctive relief are precluded because they are based on the same facts as the time-barred claim for civil penalties.
Accordingly, we AFFIRM.
I. Background
The. Clean Air Act (CAA) directs states to achieve and maintain air quality standards set by the EPA. Each state must adopt a state implementation plan (SIP) for meeting these goals, subject to EPA approval. See 42 U.S.C. §§ 7407(a), 7410(a), 7410(k). In “attainment” areas, where air quality 'is already up "to standards, see id. § 7407(d)(1)(A)(ii), SIPs must comply with the federal Prevention of Significant Deterioration (PSD) program, see id. §§ 7470-7492. The purpose of this program is to protect air quality from significant deterioration caused by new emissions. See id. § 7470. To further that aim, the PSD program provides that a “major emitting facility” cannot be constructed or modified without a permit that sets emission limitations. Id. § 7475(a)(1); see also id. § 7479(2)(c) (defining “construction” to include “the modification ... of' any source or facility”). Oklahoma’s SIP, which has been approved by the EPA, honors this requirement by providing that “[n]o person shall cause or allow the construction or modification of any source” without obtaining a PSD permit from the Oklahoma Department of Environmental Quality. Oklahoma SIP Regulations § 1.4.2(a)(1); see a¿so id. § 1.4.4 (setting specific requirements that major emission sources must meet to receive a permit).
■According to the complaint, OG & E began modifying a boiler at its Muskogee power plant sometime in March 2008. The plant is a major emitting facility located in an attainment area and therefore was subject to the PSD permit requirement. OG & E did not obtain a PSD permit before commencing the project. Nor did the company secure one before the modification ended sometime in April 2008. Sierra Club alleges that the modification resulted in an increase in the emission of pollutants.
.Although the modification was completed in April 2008, Sierra Club took no legal action until 2013. At that time, it notified OG & E that it intended to bring suit under the CAA, which grants any person a cause of action against an entity that constructs or modifies a major emitting facility without a PSD permit. See 42 U.S.C. § 7604(a)(3). Sierra Club sought civil penalties under 42 U.S.C. § 7413(e)(2) for each day of unpermitted modification activity, as well as declaratory relief and an injunction requiring OG & E to obtain a PSD permit and upgrade its pollution controls so as to comply with Oklahoma regulations. The parties subsequently entered an agreement that tolled the statute of limitations effective April 1,2013.
Because the CAA does not specify a statute of limitations for bringing a citizen suit for civil penalties, the default five-year statute of limitations for civil penalties, fines, and forfeitures under federal law applies. See 28 U.S.C. § 2462. Thus, the parties agreed that any penalties originating before April 1, 2008—five years pri- or to the tolling agreement—were time-barred. The question was whether Sierra Club, could maintain a claim for penalties originating on April 1,2008 or later.
The district court dismissed Sierra Club’s claim for civil penalties, holding any failure on OG & E’s part to obtain a PSD permit would have- been a violation that accrued at the commencement of modification of the boiler, which was before April 1, 2008. The court also, dismissed Sierra Club’s equitable claims for injunctive and declaratory relief because they were predicated on the time-barred legal claim.
II. Analysis
Sierra Club makes two arguments. First, it contends that the statute of limitations does not bar its claim for civil penalties because OG & E continued to violate the CAA until it completed the modification, which was sometime after April 1, 2008. Second, it asserts that its claims for equitable relief are not expired because they are separate from’its claim for civil penalties; Sierra Club seeks equitable relief as an alternative remedy, rather than as a means to enforce its civil penalties claim.
We consider these arguments in turn, first holding the statute of limitations bars Sierra Club’s suit for civil penalties because the claim first accrued when modification commenced. We next hold Sierra Club’s actions for injunctive and declaratory relief are precluded by the concurrent remedy doctrine.
A. Statute of Limitations
We review de novo “a district court’s ruling regarding the applicability of a statute of limitations.” Plaza Speedway, Inc. v. United States, 311 F.3d 1262, 1266 (10th Cir.2002) (internal quotation mark omitted). A statute of limitations defense “may be appropriately resolved on a [Rule] 12(b) motion when the dates given in the complaint make clear that the right sued upon has been extinguished.” Lee v. Rocky Mountain UFCW Unions & Emp’rs Tr. Pension Plan, 13 F.3d 405, at *1 (10th Cir.1993) (Table).
An action seeking civil penalties for failure to obtain a PSD permit must be brought “within five years from the date when the claim first accrued.” 28 U.S.C. § 2462.- The parties agree that a PSD permit is a pre-construction or pre-modifi-cation requirement, but disagree as to whether the beginning of the -limitations period is delayed as long as the unpermit-ted construction or modification process continues. Sierra Club argues that the statute of limitations resets on each day of unpermitted construction or modification, which in this case included days after April 1,2008.
Sierra Club raises two distinct theories: (1) OG & E committed , a new, discrete violation on each day of unpermitted modification, which we refer to as a theory of “repeated violations”; or (2) OG & E committed a single violation when it began unpermitted construction, but that violation continued until construction was completed. We refer to the latter as a theory of “continuing violation.” In Sierra Club’s view, if either of these theories is correct, then the statute of limitations does not preclude civil penalties for days of modification beginning with April 1, 2008. In contrast, OG & E maintains that the failure to procure a PSD permit generated a single claim for one day’s penalty that accrued only on the first day of modification, which of course occurred before April 1,2008.
We need not consider whether OG & E’s position is correct because we conclude that Sierra Club’s claim for penalties is time-barred for other reasons. The statute of limitations begins to run as soon as a claim “first aecrue[s].” (emphasis added). Id. As explained below, if any form of violation exists beyond the first day of unpermitted modification, it is best characterized as a continuing violation rather than a series of repeated violations. And because this particular violation first accrued when modification commenced, the statute under § 2462 began to run on that date. That was more than five years before Sierra Club brought suit, and any penalties are accordingly time-barred.
A single violation continues over ah extended period of time “when the plaintiffs claim seek's, redress for injuries resulting from a series of separate acts that collectively constitute one unlawful act,” as opposed to “conduct that is a discrete unlawful act.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir.2009) (internal quotation marks omitted) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). In other words, one violation continues when “the conduct as a whole can be considered as a single course of conduct.” Birkelbach v. SEC, 751 F.3d 472, 479 n. 7 (7th Cir.2014). The violation must involve some affirmative conduct within the limitations period and “not merely the abatable but unabated inertial consequences of some pre-limitations action.” Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 517 F.2d 117, 128 (5th Cir. 1975).
That is the situation when an emissions facility is constructed or modified without a permit, as constructing or modifying a facility is best characterized as a single, ongoing act. To repeat, the CAA prohibits . unpermitted construction or modification of a “major emitting facility.” 42 U.S.C. § 7475(a)(1). It is the act of constructing itself that is unlawful, see Sierra Club, Inc. v. Sandy Creek Energy Assocs., 627 F.3d 134, 141 (5th Cir.2010) (holding a related CAA preconstruction requirement “simply renders the act of constructing itself unlawful”). “Construct” is an “active verb [] that ha[s] force after ., construction ... has begun.” Wildearth Guardians v. Lamar Utils. Bd., Civil Action No. 1:09-CV-02974-DME-BNB, 2010 WL 3239242, at *5 (D.Colo. Aug. 13, 2010). Thus, “construct” should not be read to encompass a disjointed series of discrete acts of construction. To “construct” is an ongoing project. Accordingly, if we. accept Sierra Club’s argument that some form of violation exists beyond the first day of modification, it must be characterized as a single, continuing violation.
Sierra Club argues that where a continuing violation exists, the limitations period under §. 2462 does not begin to run until the final day of the violation—here, the final day of unpermitted modification, which was sometime after April 1, 2008. Although we could consider this argument forfeited because it was not raised below, we reject it anyway. The specific statute of limitations at issue begins to run when a claim “first accrue[s].” 28 U.S.C. § 2462 (emphasis added). “[A] claim accrues when the plaintiff has a complete and present cause of action.” Gabelli v. SEC, — U.S. —, 133 S.Ct. 1216, 1220, 185 L.Ed.2d 297 (2013) (internal quotation marks omitted). In other words, a claim accrues as soon as “the plaintiff can file suit- and obtain relief.” Heimeshoff v. Hartford Life & Accident Ins. Co., — U.S. —, 134 S.Ct. 604, 610, 187 L.Ed.2d 529 (2013) (internal quotation marks omitted). And a continuing violation is actionable even before the last act of the violation where the conduct that has already occurred is sufficient to support a claim. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has ‘occurred,’ even if it is still occurring.”).
In this case, it is clear that Sierra Club could have brought suit for the PSD permit violation on the first day of modification. Even one day of unpermitted modification would have presented a “complete and present” violation of the statute. See 40 C.F.R. § 51.166(a)(7)(iii) (“No new major stationary source or major modification to which the requirements [herein] apply shall begin actual construction without a permit that states that the major stationary source or major modification will meet those requirements.” (emphasis added)); United States v. Midwest Generation, LLC, 720 F.3d 644, 647 (7th Cir.2013) (“The violation is complete when, construction commences without a .permit in hand.”); see also United States v. EME Homer City Generation, L.P., 727 F.3d 274, 285 (3d Cir.2013) (quoting the same). Consequently, Sierra Club’s cause of action first accrued prior to April 1, 2008, even if the violation continued until some later date. Any penalties stemming from the alleged violation are therefore time-barred. ,
Sierra Club asserts that because “[a] penalty may be assessed for each day of violation,” 42 U.S.C. § 7413(e)(2), the claim reaccrues oh each day of a continuing violation. But whether the claim reaccrues does not answer or even-address when it first accrues. We see a difference between the availability of a statutory penalty and the initial accrual of the violation giving rise to penalties.
Next, Sierra Club cites four cases for the claim that a continuing violation extends' the deadline to file suit under § 2462. Three of them are easily distinguished. In the first, Havens Realty Corp. v. Coleman, the Supreme Court held “where a- plaintiff, pursuant to- the Fair Housing Act, challenges hot just one incident of conduct violative of the Act, but an unlawful practice that continues into-the limitations period,” the statutory clock begins upon “the last asserted occurrence of that practice.” 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). Havens concerned a different , statute, of limitations employing substantially different language: “A civil action shall be commenced within one hundred and eighty days after the alleged discriminatory housing practice occurred.” Id. at 380 n. 22, 102 S.Ct. 1114 (internal quotation marks omitted). That statute .allowed the limitations period to continue as long as the discriminatory practice “occurred.” Id. at 381, 102 S.Ct. 1114. In contrast, the clock under § 2462 begins only once, when a claim first accrues. If the limitations period under § 2462 reset each day,, the statutory term “first” would have no operative force. In other words, the statute could just as easily state that the limitations period begins whenever “the claim accrues.”
Second, Sierra Club’s reliance on United States v. Jaynes, 75 F.3d 1493 (10th Cir. 1996), as well as its reliance on our unpublished decision in United Slates v. Shaw, 150 Fed.Appx. 863 (10th Cir.2005) are equally unavailing.- Those cases involved the distinct “continuing offense” doctrine in the criminal context. There, a “continuing offense” “is a term of art” that we generally avoid applying unless “the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as.a continuing one.” Jaynes, 75 F.3d at 1506 (internal quotation marks omitted). More importantly, like Havens-, these cases did not concern the unique “first accrued” language of § 2462.
Lastly, Sierra Club points to a Fifth Circuit administrative appeal for the proposition that the beginning of the limitations period under § 2462 is extended as long as a violation continues. In Newell Recycling Co. v. EPA, the Fifth Circuit upheld an administrative determination that a claim against a recycling facility’s improper disposal of pollutants did not accrue until the facility properly disposed of the contaminated soil. 231 F.3d 204, 206-07 (5th Cir. 2000). As a result, the limitations period under § 2462 did not begin to run until the proper disposal, ie., the end of the violation. Id. at 206. We find this holding unpersuasive. First, the court deferred to the interpretation of the administrative board and-, did not undertake a de novo review of the statute. Second, the board’s reasoning that no claim “accrued” until the violative conduct ended is inconsistent with more recent. Supreme Court cases that hold a claim accrues “when the plaintiff can file suit and obtain relief.” Heimeshoff, 134 S.Ct. at 610 (internal quotation marks omitted); see also Gabelli, 133 S.Ct. at 1220 (“[A] claim accrues when the plaintiff has a complete and present cause of action.” (internal quotation marks omitted)). Finally, the court nowhere addressed the significance of the phrase, “first accrued,” in § 2462. Thus, to the extent that Newell suggests the limitations period under § 2462 does not begin to run as long as an already-ripe violation continues, we disagree.
As a final note, we have observed that “the continuing violation doctrine is premised on the equitable notion that the statute” of limitations should not begin to run until a reasonable person would be aware that his or her rights have been violated.” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir.2003) (internal quotation marks omitted). It follows that , “a continuing violation claim fails if the plaintiff knew, or through the exercise of reasonable diligence would have known” of the injury when it began. Id. at 1184 (internal quotation marks omitted). Here, nothing prevented Sierra Club from discovering, within five years, that it had an actionable claim as soon as OG & E began construction.
In sum, § 2462 requires that a suit be filed within five years of when a claim first accrues, which in this case was when OG & E commenced modification of the boiler. Because Sierra Club brought suit more than five years after that date, its claim, is now time-barred.
B. Concurrent Remedy Doctrine
Sierra Club also seeks declaratory relief and an injunction requiring OG & E to obtain a PSD permit and upgrade its pollution controls. But it relies on the same theory that underlies its claim for civil penalties: OG & E unlawfully modified a boiler at the Muskogee plant without a permit. Even so, Sierra Club contends that if its suit for civil fines is time-barred, the statute of limitations has no effect on its equitable claims. We disagree because the equitable claims are based on the same facts supporting the time-barred legal claim.
Although § 2462 bars ' Sierra Club’s suit for civil penalties, its language does not, in and of itself, limit actions for equitable relief. See United States v. Telluride Co., 146 F.3d 1241, 1245 (10th Cir. 1998). Nonetheless, the concurrent remedy doctrine provides that a statute barring a legal claim will also bar an equitable claim “when the jurisdiction of the federal court is concurrent with that at law, or the suit is brought in aid of a legal right.” Russell v. Todd, 309 U.S. 280, 289, 60 S.Ct. 527, 84 L.Ed. 754 (1940). This rule applies whenever “an action at law or equity could be brought on the same facts.” Telluride, 146 F.3d at 1248 n. 12.
Relying on Russell, 309 U.S. at 289, 60 S.Ct. 527, Sierra Club contends that-an equitable action is only brought “in aid of’ a legal right when it would be necessary to effectuate a legal remedy. In Russell, a bank’s shareholders were individually responsible for the bank’s debts. Id. When the bank’s creditors sued the shareholders, the district court needed to determine the extent of liability for each shareholder. To do that, the court first had to exercise its equity jurisdiction to perform an assessment that would uncover the relevant facts. Id. at 285-86, 60 S.Ct. 527. The Supreme Court held the primary action was itself an action in equity, id. at 286-87, 60 S.Ct. 527, and therefore that a legal statute of limitations did not apply, id at 289, 60 S.Ct. 527. The Court explained, however, that where the primary claim is a legal claim barred by a legal statute of limitations, the exercise of equity jurisdiction to determine the underlying facts would also be barred. Id. Sierra Club argues that this case only holds an.equitable claim is barred where it is a mere prerequisite to resolving a legal dispute, In. Sierra Clubs view, a stand-alone request for equitable relief can therefore survive even where a legal remedy based on the same facts is expired.
We disagree. Sierra Club’s narrow reading of Russell contradicts our observation that an equitable claim is unavailable when it can be , brought on the same facts as an expired legal claim. Telluride, 146 F.3d at 1248 n. 12. It follows from this rule that an, equitable claim is barred where “the only difference between” it and a time-barred legal claim “is the relief sought.” Grynberg v. Total S.A., 538 F.3d 1336, 1353 (10th Cir.2008). Otherwise, a legislative determination that a particular time .limit is sufficient to take action against wrongful conduct “could be undermined by permitting less timely claims for such [conduct] when only equitable remedies are sought.” Id.
Relying on the .same principles, the Eighth and Eleventh Circuits have similarly held that where a statute of limitations precludes civil penalties for failing to obtain a PSD permit, equitable remedies based on the same facts are barred as well. See Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1018-19 (8th Cir.2010); Nat’l Parks & Conservation Ass’n v. Tenn. Valley Auth., 502 F.3d 1316, 1327 (11th Cir.2007). We agree and hold Sierra Club cannot win injunctive or declaratory relief for OG & E’s alleged PSD permit violation because its legal remedy based on the same facts is time-barred.
Finally, Sierra Club asserts that the concurrent remedy doctrine is inapplicable because it is acting as a “private attorney general” in place of the government. A suit brought by the government in its sovereign capacity “is not subject to "a time limitation unless Congress explicitly imposes one and any statute of limitations sought to be applied against the United States must receive a strict construction in favor of the Government.” Telluride, 146 F.3d at 1248 (internal quotation marks omitted). Accordingly, the concurrent remedy doctrine does not apply to the government. Id. at 1249. But Sierra Club is not the government, regardless of how it views its own role. A citizen suit under the CAA is brought on the plaintiffs “own behalf.” 42 U.S.C. § 7604(a). Private plaintiffs cannot be said to “represent the public at large in the same way the government does when it brings suit to enforce the statute,” Nat’l Parks, 502 F.3d at 1327, and thus are not eligible for the government’s exemption.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s Rule 12(b)(6) dismissal of Sierra Club’s claims.
. In relevant part, the statute reads:
(a) Major emitting facilities on which construction is commenced
No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in’any area to which this part applies unless—
(1) a permit has been issued for such proposed facility in accordance with this part setting forth emission limitations for such facility which conform to the requirements of this part....
42 U.S.C. § 7475.
. In relevant part, the Oklahoma SIP reads:
No person shall cause or allow the construction or modification of any source without first obtaining an authority to construct or modify from the Commissioner as to comply with all applicable air pollution rules and" regulations, and not to exceed ambient air quality standards or applicable federal new source performance standards (NSPS) and national emission standards for hazardous air pollutants (NESHAPS), Sections 111 and 112 of the Federal Clean Air Act,
Oklahoma SIP Regulations § 1.4.2(a)(1),
, in a separate cause of action, Sierra Club also asserted that the plant had exceeded limits on opacity and particulate matter outlined in a 1978 permit that authorized the initial construction of the boiler. Sierra Club voluntarily dismissed this claim.
. As we explain below, the concurrent remedy doctrine bars claims that "could be brought on the same facts.” United States v, Telluride Co., 146 F.3d 1241, 1248 n. 12 (10th Cir. 1998).
. The distinction between a single, continuing violation and repeated, discrete violations is important because an entirely new violation would first accrue apart from the other violations in the s,eries and would begin a new statutory clock. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (holding that in the case of discrete discriminatory acts, as opposed to a hostile-work-environment claim involving multiple acts as part of the same claim, "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act”); Figueroa v. D.C. Metro. Police Dep’t, 633 F.3d 1129, 1135 (D.C.Cir.2011) (“each violation gives rise to a new cause of action, each [cause of action] begins a new statute of limitations period” (quoting Knight v. Columbus, 19 F.3d 579, 582, (11th Cir. 1994))). In contrast, a single, continuing violation would not extend the limitations period of § 2462 because the statute would begin to run as soon as that violation first accrued and 'would not reset thereafter.
. Sierra Club claims that it did raise this argument below, but the instances it cites appear to advance a repeated violations theory, rather than a continuing violation theory. “[V]ague, arguable references to a point in the district court proceedings do not preserve the issue on appeal.” Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir.1993) (alterations omitted). And raising a related theory is also insufficient. Id. at 722.
. We express no opinion on OG & E’s exposure to civil penalties had a timely suit been commenced. See 42 U.S.C. § 7413 (allowing civil penalties for each day of violation of the CAA). We only hold that Sierra Club knew it had a cause of- action when OG & E commenced construction.
. .Sierra Club concedes, “The only .claim at issue in this appeal is Sierra Club’s claim that by constructing a modification to its Muskogee coal-fired power plant without a permit, the Oklahoma Gas & Electric. Company violated 42 U.S.C. § 7475(a).” Aplt. Br. at 4.
. In its reply brief, Sierra Club asserts for the first time that its claim for injunctive relief is not based on the same facts as its claim for civil penalties because the former requires additional showings. These include irreparable injury, the inadequacy of legal remedies, that "the balance of hardships between the plaintiff and defendant” favors an equitable remedy, and "that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). We generally do not consider arguments raised for the first time in a-reply brief. See Fed. R.App. P. 28(a)(8)(A); United States v. Wayne, 591 F.3d 1326, 1336 n. 9 (10th Cir.2010). Regardless, Sierra Club’s argument fails because all of the facts supporting its time-barred legal claim are essential to its equitable claims. In Grynberg, the plaintiffs’ equitable claims for unjust enrichment required showing that the defendants had been enriched, 538 F.3d at 1351, which was not needed for its expired legal claims for breach of fiduciary duty, see id. at 1346-47. Nonetheless, the unjust-enrichment claims were "predicated on the same alleged misconduct—a breach of fiduciary duty, primarily arising from the use of confidential information.” Id. at 1351-52. We see no support for the proposition that an equitable claim is only barred if each of its elements is identical to each element of the barred legal claim.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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BRISCOE, Circuit Judge,
dissenting.
This case presents an issue of first impression in this and every other circuit: Is the statute of limitations for unpermitted construction or modification in violation of 42 U.S.C. § 7475(a) tolled so long as the construction or modification continues? The majority • concludes, that because this claim “first accrued” on the first day of construction, tolling for a continued violation is prohibited. Because this holding ignores the nature of tolling doctrines, as well as the text and purpose of the Glean Air Act’s Prevention of Significant Deterioration (PSD) program and the Oklahoma State Implementation Plan (SIP), I respectfully dissent.
The majority is correct that Sierra Club’s claim “first accrued” within the meaning of 28 U.S.C. § 2462 when OG & E first began modification of a boiler at its Muskogee power plant. But that conclusion should not end our inquiry. The majority conflates the accrual date with a complete bar on tolling doctrines which, if applied, extend the timeliness of a claim notwithstanding an expired statute of limitations. Here, application of the “continuing violation” tolling doctrine is appropriate for three reasons. First, the.plain text of the Clean Air Act, supported by Oklahoma’s SIP, prohibits the “construction” or “modification” of regulated air emissions sources, not the “commencement” of those activities. Second, cases from other circuits, rejecting the argument that operation of an unpermitted source is not a continuing violation, draw a principled line between the end of construction and the subsequent operation of a source. Third, characterizing a violation of the PSD program as a one-time occurrence severely undermines the structure of the program Congress so carefully crafted; but tolling in this instance does not undermine the purposes of statutes of limitations.
I
The continuing violation doctrine
The continuing violation doctrine tolls the statute of limitations “for a claim that otherwise would be time-barred where the violation ... continues to occur within the limitations period.” Nat’l Parks & Conservation Ass’n, Inc. v. Tenn. Valley Auth., 502 F.3d 1316, 1322 (11th Cir.2007) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 380, 102 S.Ct. 1114, 71 L.Ed,2d 214 (1982)). Where a violation is “ongoing, rather than a single event” and is “extant” within the limitations period, enforcement of that violation is timely, even if the violation “first accrued” outside of the limitations period. Interamericas Invs., Ltd. v. Bd. of Governors of the Fed. Reserve Sys., 111 F.3d 376, 382 (5th Cir. 1997) (citing Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); and Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968)) (tolling 28 U.S.C. § 2462 for a continuing securities violation).
The Clean Air Act and Oklahoma SIP
Looking to the substantive statute for guidance on the nature of the PSD violation, the text of both the Clean Air Act and the EPA-approved Oklahoma SIP strongly support application of the continuing violation doctrine. The Clean Air, Act requires that “[n]o major emitting facility ... may be constructed [or modified] ... unless ... a permit has been issued.” 42 U.S.C. §§ .7475(a)(1), 7479(2)(c). (emphasis added). Additionally, the citizen- suit provision that empowers Sierra Club’s cause of action authorizes suit “against any person who proposes to construct or constructs ” a facility without a permit. 42 U.S.C. § 7604(a)(3) (emphasis added). Similarly, the Oklahoma SIP requires that “[n]o person shall cause or allow the construction or modification of any source” without obtaining a PSD permit from the Oklahoma Department, of Environmental Quality. Oklahoma SIP Regulations §. 1.4.2(a)(1) (emphasis added). None of these prohibitions focuses on the copimencement of construction; they focus instead on construction or modification as a whole.
The majority is correct when it states: “It is the act of constructing itself that is unlawful,” and “[t]o ‘construct’ is an ongoing project.” Maj. Op. at 672.- While acknowledging that “constructing or modifying a facility is- best characterized as a single, ongoing act,” id., the majority ignores the statutory and regulatory language. Instead, the majority inserts narrowing terms which are not there, characterizing the’ violation as the act of commencing construction, rather than the whole act of construction. But 42 U.S.C. § 7475(a) indicates' that Congress considered and rejected limiting PSD violations .to the commencement of construction. In defining the jurisdiction of the PSD amendments, Congress stated that facilities “on which construction is commenced after” the date of enactment would be subject to the requirements. 42 U.S.C. § 7475(a). In contrast, Congress omitted any mention of “commencing” construction, in the text of the actual prohibition. Id. (“No major emitting facility ... may be constructed....”) (emphasis added). “[Wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that -Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)). Rote reliance on “first” accrual does not alter the statute’s language or negate Congress’s intent,
The majority’s reliance on an EPA Regulation that references the “begin[ning of] actual" construction” does not overcome this statutory language. See Maj. Op. at 673 (quoting 40 C.F.R. § 51.166(a)(7)(iii)). By relying on this regulation over the plain language of the Clean Air Act and the Oklahoma SIP, the majority ventures into administrative law and co-federalism issues far beyond the scope of this case. More importantly, the majority relies on this regulation merely for the accepted premise that the PSD claim “first accrued” when OG & E began its unpermitted modification. The majority again mistakes the date of first accrual with a bar on tolling doctrines, which permit otherwise time-barred claims.
Were" we to toll 28 U.S.C. § 2462 for a continuing violation based on a textual reading of the underlying statute, we would not be the first to do so. See Inter-americas Invs., 111 F.3d at 381-83; see also Birkelbach v. S.E.C., 751 F.3d 472, 479 (7th Cir.2014). In Interamericas Invs., the Fifth Circuit applied the continuing violation doctrine to securities reporting violations subject , to the § 2462 statute of limitations. 111 F.3d at 381-83. The court was persuaded that the continuing violatipn doctrine applied because of the underlying statute’s precise language defining the violation, the implementing agency’s interpretation, and the fact that the statute provided daily penalties. Id. The Fifth Circuit concluded, therefore, that applying a continuing violation theory was necessary to implement congressional intent. Id. at 382-83. This case, although arising under different subject matter, is no different analytically. The plain language of the Clean Air Act and the implementing Oklahoma SIP precisely prohibit construction and modification, not just the commencement of those activities. This language reveals congressional intent that the violation be considered á continuing one at least so long as the unpermitted construction or modification continues.
Distinguishing continuing “operating” violations
The district court’s and majority’s reliance on cases from other circuits which purportedly address the issue at hand is misplaced. No other circuit has considered the continuing violation doctrine in the context of PSD violations where construction was ongoing within the limitations period. The majority’s citations to United States v. Midwest Generation, LLC, 720 F.3d 644, 646-47 (7th Cir.2013), and United States v. EME Homer City Generation, L.P., 727 F.3d 274, 283-88 (3d Cir,2013) are useful, at most, for the persuasive value of their dicta. These cases considered whether a PSD violation continued so long as the emissions source, constructed or modified without a permit, was in operation. See also Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1014-15 (8th Cir.2010); Nat’l Parks & Conservation Ass’n, 502 F.3d at 1322-25. In all of these cases, construction or modification was completed outside of. the five-year statute of limitations period. Thus, contrary to the majority’s indication, no circuit court, until today, has rejected the argument that the PSD violation continues as long as construction or modification continues.
The only views expressed by these sister circuits'on the issue presented are found in dicta in two cases, each pointing us‘in a different direction. In Otter Tail Power, the Eighth Circuit noted in its rejection of the continuing operations argument that “[i]t is ... clear that each of [the plaintiffs] PSD claims first accrued upon commencement of the relevant modification.” 615 F.3d at 1014 (emphasis added). The other reference is found in EME Homer, where the Third Circuit stated: “Like Rome, facilities are not built—or modified—in a day. It is possible that 'the maximum daily, fine accrues each day the owner or operator spends modifying or constructing the facility—from the beginning of construction to the end of construction.” EME Homer, 727 F.3d at 288. The Third Circuit also summarized the outcome of its holding as follows: “If the EPA does not object within five years of the completion of a facility’s modification, then it loses the right to seek civil penálties under the statute of limitations.” Id. at 289 (emphasis added). “[W]hen more than five years have passed since the end of construction ..., the Clean Air Act protects [the regulated party’s] reasonable investment expectations.” Id. (emphasis added).
I agree with the Third Circuit’s view. The EME Homer court drew a well-principled line, based on the best reading of the Clean Air Act. Where construction or modification is ongoing without, a permit, the violation continues and the statute of limitations is reasonably tolled. When construction is complete, so is-the violation;
Clean Air Act policy and purpose
Finally, there are persuasive policy Reasons to conclude that the continuing violation doctrine tolls the statute of limitations here. The PSD program is the Clean Air Act’s principal tool to preserve areas that are in compliance with the National Ambient Air Quality Standards (NAAQSs). Failure to toll the statute of limitations to include the length of the construction process undermines the structure of this critical tool by upsetting the balance of the costs of noncompliance. If the law begins to characterize failure to get a PSD permit as a one-day violation, regulated parties will employ that authority to argue that they can only be subjected to one day of penalties (here, a maximum $32,500, or $37,500 for current violations). 42 U.S.C. § 7413; 40 C.F.R. § 19.4. Wasting no time, OG & E made that argument here as support for its statute of limitations theory. See Maj. Op. at 671. Thus, the majority’s ruling today may unknowingly place a low cap on available penalties on projects in violation of the PSD program, even where construction commences within five years of filing suit. Many of the emissions sources regulated by the PSD program generate a great deal of revenue, and enjoy lower costs in the absence of control measures which the permitting process would require.
Such a low cost of noncompliance undermines the balance Congress crafted when it designed the PSD program. This program allows state implementers like Oklahoma to allocate incremental increases in emissions among newly constructed and modified sources,- usually requiring control measures on the facility that the regulated entity would not otherwise install. This structure protects important interests-breathable, healthy air. See 1970 U.S.C.C.A.N. 5356, 5356. Without meaningful enforcement, emitters lose incentive to comply, and the program loses its principal tool to keep emissions at tolerable levels.
Unlike the integrity of the PSD program, policy concerns for the integrity of the statute of limitations are not implicated by this case. The principal purpose of a statute of limitations is to “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Gabelli v. S.E.C., — U.S. —, 133 S.Ct. 1216, 1221, 185 L.Ed.2d 297 (2013) (quoting R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 88 L.Ed. 788 (1944)). It is understandable that regulated parties would settle in their expectations and be entitled to repose after operating a completed facility for several years. See EME Homer, 727 F.3d at 289. But, while construction is ongoing, little is settled. Additionally, while construction is ongoing, loss of evidence is not a concern. Evidence continues to be created each day a project proceeds. The completion of modification or construction is therefore the appropriate place to end tolling, and begin expectations of repose.
II
In sum, I conclude that tolling the statute of limitations'-for a violation of 42 U.S.C. § 7475(a) is appropriate so long as the unpermitted construction or modification is ongoing. I would therefore not reach the issue of whether injunctive relief is barred under the concurrent remedies doctrine. Because the district court dismissed Sierra Club’s PSD claim as time-barred, I would reverse the judgment of the district court and remand for further proceedings.
. Contrary to the majority's conclusion, Sierra Club preserved its continuing violation argument. In its Response to OG & E’s Motion to Dismiss, Sierra Club made arguments identical to those niade on appeal regarding the text of the Clean Air Act, Oklahoma SIP, and case law. Sierra Club argued that the act of construction is an ongoing one, actionable as long as construction continues. App. at 74, 75, 77 n. 2, 78, Moreover, the cáses discussed in depth by both parties and the district court are the few authorities to speak to application of the continuing violation theory to PSD violations, so the issue was fairly raised. While Sierra Club failed to label their theory as a "continuing violation” theory before the district court, to call this argument forfeited ignores the substantive arguments for lack of a technical label.
. Sierra Club cites Havens merely as an example of the continuing violation theory generally. The majority’s attack on. Havens’s facts is therefore of little consequence to Sierra Club’s arguments specific to PSD violations.
. The title of 42’U.S.C. § 7475(a) is “Major emitting facilities on- which construction is commenced.” OG & E argued this title indicates that the violation is the commencement, rather than the whole act, of construction. Properly read, however, this title refers to the applicability of § 7475 to those facilities on which construction was commenced after the date of enactment, and further supports an inference that Congress intentionally declined to define PSD violations as the mere commencement of construction.
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Appellants Dawn-Marie and James Hawkins (referred to collectively as Hawkins) appeal the District Court’s summary judgment. It had concluded that Hawkins’s claims that Leslie’s Pool Mart (1) negligently failed “to provide adequate directions or precautions regarding the opening, closing and/or storage of the package containing the product” and (2) negligently failed “to package the product in a manner adequate to prevent excessive chemical decomposition, contamination, combustion, or generation of fumes and gases” were preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. We have jurisdiction under 28 U.S.C. § 1291 and will exercise plenary review to determine whether “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact” such that Leslie’s Pool Mart is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir.1996). We will affirm in part and reverse in part.
I.
Dawn-Marie Hawkins suffered a burning sensation in her throat and lungs, and breathing difficulty when she opened a container of Leslie’s Chlorinator Tablets 1” purchased from Leslie’s Pool Mart. Hawkins filed a diversity action in federal court against Leslie’s Pool Mart alleging negligence, strict liability, breach of warranty and loss of consortium. Germane to this appeal, Hawkins asserts that Leslie’s Pool Mart:
* failed to warn of sudden decomposition and chemical reactions which could generate harmful fumes;
* failed to provide adequate directions regarding the opening, closing and/or storage of the container; and
* failed to package the product in a manner adequate to prevent excessive decomposition contamination, combustion, or generation of fumes.
Compl. ¶¶ 9, 18, 21, 22 and 25; App. 2a-6a.
The District Court employed the preemption analysis established by the Supreme Court in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), and held that Hawkins’s failure to warn claims, failure to provide adequate directions claims and failure to adequately package the product claims were preempted by FIFRA. The District Court reasoned that imposing liability would require Leslie’s Pool Mart to alter the label and packaging approved by the Environmental Protection Agency (EPA). Hawkins appeals, relying on the Supreme Court’s most recent case on preemption, Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996).
On appeal, Hawkins first argues that FIFRA neither requires directions for opening a package nor information about the chemical reactivity of a pesticide be included therein. Appellant’s Br. at 12. Second, she suggests that directions on a container’s lid are neither required or approved under FIFRA nor are they registered with the EPA. Third, she asserts that FIFRA’s regulations concerning directions for use are general, and therefore, her claims do not impose requirements that are in addition to, or different from, FIFRA’s. As to Hawkins’s defective/negligent packaging claim, she argues that because the EPA has regulated packaging only in the area of child-resistant packaging, her claim for defective packaging is not preempted. We will affirm as to the labeling based claims but reverse as to the packaging claim.
II.
Preemption is based on the Supremacy Clause. See U.S. Const, art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding.”). The doctrine preempts state laws that conflict with or are contrary to federal law. See Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617. There are three types of preemption: express, implied and conflict preemption. However, these “categories are not ‘rigidly distinct.’ ” Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 104 n. 2, 112 S.Ct. 2374, 2386 n. 2, 120 L.Ed.2d 73 (1992) (quoting English v. General Elec. Co., 496 U.S. 72, 79 n. 5, 110 S.Ct. 2270, 2275 n. 5, 110 L.Ed.2d 65 (1990)). Here, the language of FIFRA expressly preempts state law.
The preemptive provision of FIFRA states:
§ 136v. Authority of States
(a) In general
A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this sub-chapter.
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchap-ter.
7 U.S.C. § 136v.
Even though “the pre-emptive language of [section 136v] means that we need not go beyond that language to determine whether Congress intended [FIFRA] to pre-empt at least some state law, we must nonetheless ‘identify the domain expressly pre-empted.’ ” Medtronic, 518 U.S. at 484, 116 S.Ct. at 2250 (quoting Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618). To do so, we “begin with [the statute’s] text” as “informed by two presumptions about the nature of preemption.” ' Id. at 484-85, 116 S.Ct. at 2250 (citing Gade, 505 U.S. at 111, 112 S.Ct. at 2389-90 (Kennedy, J., concurring in part and concurring in judgment)). The first presumption is “ ‘that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Id. at 485, 116 S.Ct. at 2250 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). The second longstanding presumption is that “ ‘the purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Id. at 485, 116 S.Ct. at 2250. (quoting Retail Clerks v. Schennerhom, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963)). Therefore, a proper analysis of a statute’s preemptive scope “rest[s] primarily on ‘a fair understanding of congressional purpose’” as “discerned from the language ... and the ‘statutory framework.’ ” Id. at 485-86, 116 S.Ct. at 2250-51 (quoting Cipollone, 505 U.S. at 530 n. 27, 112 S.Ct. at 2624 n. 27, and Gade, 505 U.S. at 111, 112 S.Ct. at 2390 (Kennedy, J., concurring in part and concurring in judgment)).
A proper analysis must also consider “the ‘structure and purpose of the statute as a whole,’ as revealed not only in the text, but through the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Id. at 486, 116 S.Ct. at 2251 (quoting Gade, 505 U.S. at 98, 112 S.Ct. at 2383).
In Wisconsin Public Ihtervenor v. Mortier, the Supreme Court concluded that section 136v of FIFRA resulted in a “narrow preemptive overlap” and that Congress did not intend “to occupy the entire field of pesticide regulation.” 501 U.S. 597, 613, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991). The Supreme Court observed, albeit in dicta, that although FIFRA was “a comprehensive regulatory statute,” the preemption provision was narrow and preempted state regulation of labeling. Id. at 601, 111 S.Ct. at 2480 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2867, 81 L.Ed.2d 815 (1984)). This conclusion is supported by the House Committee Report on the 1972 amendments to FIFRA. The Report notes that “[i]n dividing the responsibility between the States and the Federal government for the management of an effective pesticide program, the Committee has adopted language which is intended to completely preempt State authority in regard to labeling and packaging.” H.R.Rep. No. 92-511, at 16 (1971).
However, the pre-emptive effect of FIFRA is dependent on agency regulations. See id. at 1 (explaining that “[t]he Federal Government sets the program standards the States must meet. State authority to change Federal Labeling and packaging is completely preempted” and noting that the EPA has “[g]eneral authority ... to write regulations to carry out the Act and recognize the use of specialty chemicals”); 7 U.S.C. § 136v(a) (permitting state regulation of pesticides “but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter”); id. § 136v(b) (prohibiting state imposed labeling or packaging requirements that are “in addition to or different from those required under this sub-chapter”).
We therefore begin by noting that FI-FRA expressly preempts state imposed requirements in the areas of labeling and packagihg that are “in addition to or different from those required” by the EPA. 7 U.S.C. § 186v(b). We also note that the term “requirements” in section 136v includes not only state statutory law but also state common-law damages claims. See Medtronic, 518 U.S. at 487-88,116 S.Ct. at 2251; see also Cipollone, 505 U.S. at 521, 112 S.Ct. at 2620 (concluding that the term “requirements” “sweeps broadly” and “easily encompassfes] obligations that take the form of common-law rules” and that an award of damages can be “ ‘a potent method of governing conduct and controlling policy’ ” (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959))). However, that does not in turn automatically preclude all state common-law damages claims. As the Supreme Court observed in Medtronic, “if Congress intended to preclude all common-law causes of action, it chose a singularly odd word with which to do it.” 518 U.S. at 487, 116 S.Ct. at 2251. The word “ ‘requirement’ appears to presume that the State is imposing a specific duty upon the manufacturer.” Id. at 487, 116 S.Ct. at 2251. If Congress’s true intention was to preclude all common law causes of action, it could have stated that all remedies, rather than requirements, under state law pertaining to pesticides, fungicides and rodenticides are precluded. Cf. id. at 487-88, 116 S.Ct. at 2251.
A. Labeling Claims
Although FIFRA’s language is fairly general as to some aspects of pesticide regulation, EPA rules and regulations set forth specific labeling requirements. See' 40 C.F.R. § 156.10; Lewis v. American Cyanamid Co., 155 N.J. 544, 715 A.2d 967, 973 (N.J.1998) (noting that “[although FIFRA does not prescribe the exact contents of labels, manufacturers are not free ... to create pesticide labels in any manner they .choose.... FIFRA cannot impose a specific requirement for warning labels like the 1969 Cigarette Act because FIFRA regulates a wide variety of products that cannot be serviced by a single statement.”). The EPA requirements address, inter alia, label contents and proper label placement. Required warning and precautionary 'statements are based in part, on the toxicity of' the pesticide. The EPA has established “typical precautionary statements” for the different categories of toxicity. 40 C.F.R. § 156.10(h)(2)(i)(B). However, “[t]hese statements must be modified or expanded to reflect specific hazards.” Id. Thus, Hawkins’s claim that Leslie’s Pool Mart failed to warn of sudden decomposition and sudden reactivity of the pesticide is, on its face, preempted by the pesticide-specific labeling requirements established by the EPA.
Hawkins contends that her “claims based on failure to provide adequate directions for opening and closing the container are not preempted because they do not impose requirements that are different from or in addition to federal requirements.” Appellant’s Br. at 6. We disagree.
First, “ ‘labeling’ means all labels and all other tvritten, printed, or graphic matter ... accompanying the pesticide or device at any time.” 7 U.S.C. § 136(p)(2) (emphasis added). Thus, a plain reading of the statute reveals that Congress intended the term “labeling” to include all printed matter — whether appearing on a front or back “label” or some other portion of the container. Hawkins attempts to make the distinction that her claim is based not on the label, but on instructions placed on the lid of the container. We reject such a hair-splitting reading of the statute, and instead conclude that, under a literal reading of FIFRA, labeling requirements include any and all printed matter that “accompanies] the pesticide.” Id.
Hawkins also argues that “[t]he applicability of [Medtronic’s] logic to this case is inescapable” because the language of FI-FRA “is virtually identical” to that of the Medical Device Amendments. Appellant’s Br. at 11. However, even assuming that FIFRA is analogous to the Medical Device Amendments addressed by the Supreme Court in Medtronic, contrary to Hawkins’s assertions, we do not read that case as standing for the overarching premise that tort claims fall outside “preempted requirements.” Further, the Court’s holding in Medtronic does not alter our analysis as to Hawkins’s labeling-based claims. In Medtronic, the Food and Drug Administration approved a pacemaker device without performing an extensive evaluation. See 518 U.S. at 480, 116 S.Ct. at 2248. In stark contrast, here the EPA withheld approval of the chlorinator tablets and accompanying labels until Leslie’s Pool Mart incorporated specific labeling language mandated by the EPA. For example, in 1975, the EPA approved the following language for Leslie’s chlorinator tablets 1” labels and warning:
DANGER: KEEP OUT OF REACH OF CHILDREN.
Corrosive, causes eye damage. May be fatal if swallowed. Do not get in eyes, on skin or on clothing. Irritating to nose and throat. Avoid breathing dust. May cause burns to broken skin. Wash hands after handling.
DANGER: STRONG OXIDIZING AGENT.
Mix only with water. Use clean dry utensils. Contamination by moisture, organic matter, or other chemicals may liberate hazardous gases. Store in cool, dry, well-ventilated area away form heat or open flame. Decomposes at S50°F with liberation of harmful gases. In case of decomposition, if possible, isolate container in open air. Flood with large amounts of water. Keep container tightly closed when not in use. Rinse empty container thoroughly with water to dissolve all material before discarding.
App. at 15a (emphasis added). In 1988, the EPA notified Leslie’s Pool Mart that its labeling was unacceptable and needed to be revised to read as follows:
Danger: corrosive. Causes eye and skin damage. Do not get in eyes, on skin or on clothing. Wear goggles and rubber gloves when handling. Harmful if swallowed. Avoid breathing dust. Wash thoroughly with soap and water after handling.
App. 35a (emphasis added). Finally, in 1994, the EPA again changed the wording requirements to read:
CORROSIVE: Causes irreversible eye damage and skin burns. May be fatal if absorbed through skin. May be fatal if inhaled. Do not breathe dust or spray mists. Irritating to nose and throat. Harmful if swallowed. Do not get in eyes, on skin, or on clothing. Wear goggles or face shield, protective clothing and rubber gloves when handling this product. Wash thoroughly with soap and water after handling and before eating, drinking or using tobacco. Remove contaminated clothing and wash before reuse.
App. 58a (emphasis added).
Additionally, in 1994, the EPA approved the following language concerning the storage and disposal of the chlorinator tabT lets:
STORAGE AND DISPOSAL: Do not contaminate water, food, or feed by storage or disposal. Keep product dry in tightly closed container tuhen not in use. Store in cool dry, tvell ventilated area away from heat or open flame...
App. at 38a (emphasis added), and the following precautionary statements under the heading “Physical or Chemical Hazards: Strong Oxidizing Agent”:
Mix only with water. Use clean dry utensils. Do not add this product to any dispensing device containing remnants of any other product. Such use may cause a violent reaction leading to fire or explosion. Contamination with moisture, organic matter, or other chemicals may start a chemical reaction, with generation of heat, liberation of hazardous gases, and possible generation of fire and explosion. In case of contamination or decomposition, do not reseal container. If possible isolate container in open air or well ventilated area. Flood with large volumes of water if necessary.
Id. (emphasis added). The Record shows that each time the EPA evaluated the labels and made recommendations pertaining to the language on the labels, Leslie’s Pool Mart cooperated with the EPA and changed the labels as instructed.
“In sum, the EPA’s requirements for labeling pesticides are sufficiently specific to mandate preemption of claims based on state statutes or common law.” Lewis, 715 A.2d at 973; see also Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 560 (9th Cir.1995) (“[UJnder 7 U.S.C. § 136a(c)(5), the EPA approves each label only after a careful review of the product data and the draft label. FIFRA cannot impose a specific language requirement for warning labels like the 1969 Cigarette Act because FIFRA regulates a wide variety of products that cannot be serviced by a single statement.”). The EPA categorizes each pesticide according to its toxicity and then sets forth the warning language required on the pesticide’s label. See Lewis, 715 A.2d at 973. FIFRA disallows any changes to an EPA-approved label unless the EPA approves the change. This absolute control of labeling regulation indicates that Hawkins’s claim that labeling different from that approved by the EPA should have been included on the container is preempted.
Moreover, Hawkins mischaracterizes the EPA labeling requirements concerning directions for use. We agree that the General Requirements are just that — general. The record, however, makes clear that the EPA scrutinized Leslie’s Pool Mart’s proposed labels, and withheld approval until the required language was incorporated. Therefore, we agree with Leslie’s Pool Mart’s observation that “[h]ad the EPA felt that additional language on the opening, closing, storage or use of the tablets was necessary, it would have required that Leslie’s include such language.” Appel-lee’s Br. at 19 n. 7.
Finally, Hawkins asserts that her labeling claims relate to areas not addressed by FIFRA or the EPA regulations because “[n]owhere do the regulations address the appropriate directions for opening a package in any given condition.” Appellant’s Br. at 12. We disagree. The EPA mandated and approved language on the labels specifically instructed the user on protective actions to take when opening the container and using the pesticide. Among the federal requirements are directions for the proper storage and disposal of the product and the potential reactivity of the product. These instructions necessarily implicate “opening instructions.” Although the approved instructions and warnings do not specify how the user is to pry the lid off the container, they do instruct the user to avoid breathing any fumes and to wear protective clothing and a face shield or eye goggles. Again, the comprehensiveness of the regulations leads us to conclude that Hawkins’s labeling claims are preempted. To hold otherwise would be to impose labeling requirements additional to those mandated by the EPA. See Welchert v. American Cyanamid, Inc., 59 F.3d 69, 73 (8th Cir.1995) (“Where Congress has so clearly put pesticide labeling regulation in the hands of the EPA, [a] claim challenging the accuracy of the ... label’s federally-mandated and approved statement cannot survive. To hold otherwise would be to allow state courts to sit, in effect, as super-EPA review boards that could question the adequacy of the EPA’s determination of whether a pesticide registrant successfully complied with the specific labeling requirements of its own regulations.”).
B. Defective Packaging Claims
Hawkins also alleges that Leslie’s Pool Mart “negligently] fail[ed] to package the product in a manner adequate to prevent excessive chemical decomposition, contamination, combustion, or generation of fumes and gases.” Compl. ¶ 18(c); App. at 4a. During oral argument, Hawkins contended that Leslie’s Pool Mart’s failure to individually wrap the chlorinator tablets facilitated the generation of fumes. The District Court read section 136v as preempting all state law claims based on packaging and labeling. Accordingly, the District Court granted summary judgment for Leslie’s Pool Mart. On appeal, Hawkins asserts that because the only area of packaging the EPA has regulated is child-resistant packaging, her claims alleging inadequate packaging would not impose a requirement in addition to, or different from, federal packaging requirements. Therefore, Hawkins argues, the preemption doctrine does not apply.
Leslie’s Pool Mart responds that the EPA’s limited exercise of authority is of no consequence to the broad preemptive scope of FIFRA. Leslie’s Pool Mart argues that because section 136v specifically mentions state imposed labeling and packaging requirements, these areas are the “exclusive domain” of the federal government and any state requirement concerning labeling or packaging is preempted. Thus, our task is to determine whether the scope of federal preemption of packaging claims under FIFRA is limited to the discrete area of child-resistant packaging when the EPA has. not evaluated and approved the packaging methods in dispute.
Once again, we begin our preemption analysis by identifying the domain preempted. When identifying the domain preempted, we first acknowledge that the text of FIFRA makes it clear that the EPA has authority to regulate all aspects of packaging. See 7 U.S.C. § 136q(e) (stating that the Administrator of the EPA “shall ... promulgate regulations for the design of pesticide containers that will promote safe storage and disposal of pesticides”); id.. § 136w(a)(l) (authorizing the Administrator of the EPA “to prescribe regulations to carry out the provisions of [FIFRA]”; id. § 136w(c)(3) (authorizing the Administrator of the EPA “to establish standards ... with respect to the package, container, or wrapping in which a pesticide or device is enclosed for use or consumption, in order to protect children and adults from serious injury or illness resulting from accidental ingestion or contact with pesticides or devices regulated by this subchapter as well as to accomplish the other purposes of this subchapter”)). We also consult FIFRA’s legislative history to glean Congress’s intent. The legislative history notes that “Subsection (b) [of section 136v] preempts any State labeling or packaging requirements differing from such requirements under the Act.” Sen. Rep. No. 92-838 (1972) reprinted in 1972 U.S.C.C.A.N. 3993, 4021 (emphasis added). It also allows for the inference that state and federal labeling and packaging requirements might coexist. See id. at 4111 (commenting that “[t]he amended language would prohibit local governments from imposing requirements as to labeling and packaging which differ from those imposed by Federal and State authorities” (emphasis added)). Finally, we must also consider the appropriate EPA regulations because, as explained supra, the preemptive reach of FIFRA is dependent on agency regulations.
With these guideposts, we now turn to the pertinent federal statutes and regulations. In contrast to the numerous regulations and statutes governing pesticide labeling requirements, only one EPA regulation governs pesticide packaging. See 40 C.F.R. § 157.20. Section 157.20 states in pertinent part:
This subpart prescribes requirements for child-resistant packaging of pesticide products and devices. The requirements are established under the authority of FIFRA section 25(a)(1), which authorizes the Administrator to issue regulations to carry out the purposes of the Act, and FIFRA section 25(c)(3), which authorizes the Administrator to establish standards with respect to the package, container or wrapping in which a pesticide or device is enclosed in order to protect children and adults from serious injury or illness resulting from accidental ingestion or contact with pesticides or devices regulated under the Act.
Id. Accordingly, despite a potentially broad scope of authority, the EPA' has thus far limited its exercise of power to the area of child-resistant packaging. We conclude that this limited exercise of power is significant and seriously undermines Leslie’s Pool Mart’s argument. In sum, we hold that where, as here, a preemption provision is dependent on government regulations, we cannot extend the reach of that provision to areas not actively regulated by the federal government. In other words, the EPA’s failure to promulgate packaging regulations outside the area of child-resistant packaging is fatal to Leslie’s Pool Mart’s preemption argument. When no federal packaging requirements have been established, logic dictates that a state law packaging requirement cannot be different from or in addition to the absent federal requirement. We believe this decision is consistent with the Supreme Court’s recent pronouncement on preemption in Medtronic, 518 U.S. at 470, 116 5.Ct. at 2240 (1996).
In Medtronic, the Court analyzed the preemptive effect of the Medical Device Amendments of 1976 on state law claims for common-law negligence and strict liability brought against the manufacturer of an allegedly defective pacemaker. See id. at 474, 116 S.Ct. at 2245. The Court concluded that defective design claims were not preempted even though the Food and Drug Administration approved the pacemaker. See id. at 492, 116 S.Ct. at 2254. The Court reached its decision after noting that the Food and Drug Administration “did not ‘require’ Medtronic’s pacemaker to take any particular form for any particular reason; the agency simply allowed the pacemaker, as a device substantially equivalent to one that existed before 1976, to be marketed without running the gauntlet of the [premarket approval] process.” Id. at 494-95, 116 S.Ct. at 2254. As such, the federal requirements did not reflect “an unambiguous conclusion” that was reached after a deliberate weighing of competing interests. Id. at 501, 116 S.Ct. at 2258. Rather, the requirements “reflected] important but entirely generic concerns about device regulation generally.” Id. at 501, 116 S.Ct. at 2258. Therefore, the recipient’s manufacturing and labeling based claims were not preempted. We read Medtronic as instructing that only ivhen the “Federal Government has weighed the competing interests ... [and] reached an unambiguous conclusion about how those competing considerations should be resolved in a particular cases ... and implemented that conclusion via a specific mandate” are general state common-law claims preempted. Id. at 501, 116 S.Ct. at 2258.
Here, the record reveals no evidence that the EPA considered the packaging methods at issue. Additionally, it is undisputed that no federal requirements exist in the area of pesticide packaging, exclusive of child-resistant packaging. Accordingly, we will not infer that the EPA approved the packaging for the chlorinator tablets after weighing the competing interests and reaching an “unambiguous conclusion.” Therefore, in keeping with the reasoning underlying the Supreme Court’s decision in Medtronic, we conclude that allowing Hawkins’s defective packaging claims would not impose state law requirements that are in addition to or different from federal regulations. We recognize that our holding might be viewed as conflicting with Lowe v. Sporicidin International, 47 F.3d 124, 129 (4th Cir.1995), Worm v. American Cyanamid Co., 5 F.3d 744, 747 (4th Cir.1993), and Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir.1993). However, none of these cases was decided after the Supreme Court’s decision in Medtronic. Moreover, these cases do not stand for the blanket proposition that all packaging claims are preempted. In Lowe, the Fourth Circuit Court of Appeals limited its mention of defective packaging based claims to the comments that “any state law claim that would require the defendant to alter its EPA-approved warning label, labeling, or packaging to avoid liability is preempted.” 47 F.3d at 129. In Worm, the court focused on failure to warn and labeling requirements, not design requirements. Similarly, the Eleventh Circuit Court of Appeals in Papas limited its discussion of defective packaging to labels and/or warnings located on the package and concluded that “to the extent [those] claims require a showing that [the defendant’s] labeling or packaging ‘should have included additional, or more clearly stated, warnings, those claims are pre-empted.’ ” 985 F.2d at 518 (quoting Cipollone, 505 U.S. at 524, 112 S.Ct. at 2621).
Except for these cases that peripherally mention preemption of packaging claims, no courts of appeal have addressed the preemptive reach of FIFRA to allegations of inadequate packaging. Despite Leslie’s Pool Mart’s contention that all packaging claims are preempted, we conclude that unless the EPA has specifically considered the packaging methods for a pesticide product, the domain preempted is the narrow area of child-resistant packaging. As such, Hawkins’s claims for defective packaging are not preempted.
III.
The preemption provision of FIFRA, attendant EPA rules and regulations, and the Supreme Court’s decision in Medtronic guide our analysis of whether the labeling and packaging based claims are preempted. Hawkins’s claim that Leslie’s Pool Mart failed to adequately warn about the sudden decomposition of chlorinator tablets is expressly preempted by EPA regulations. Further, Hawkins’s claim that Leslie’s Pool Mart failed to provide appropriate directions concerning the opening of the container falls within the realm of pesticide labeling. Because the EPA carefully reviewed all printed matter that accompanied the chlorinator tablets and even mandated specific language, allowing this claim would impose a state requirement in addition to or different from federal labeling regulations.
In contrast, the EPA has chosen to regulate only the area of child-resistant packaging. We are unwilling to hold that an area is preempted when the government has not acted in that particular area. Therefore, we will not construe the preemption provision of FIFRA so broadly as to preclude Hawkins’s packaging based claims. Accordingly, we affirm that portion of the District Court’s order that the labeling claims are preempted by FIFRA and reverse as to the packaging claims.
. The preemptive provision of the Medical Device Amendments Act states in pertinent part:
(a) General rule
Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—
(1) which is different form, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.
21 U.S.C. § 360k(a). Subchapter (b) then lists the exempted requirements. See id. § 360k(b).
. This conclusion "comports with the decisions of an overwhelming majority of federal and slate courts that have interpreted the extent of FIFRA preemption in light of Medtronic." Lewis, 715 A.2d at 973 (citing Kuiper v. American Cyanamid Co., 131 F.3d 656, 662 (7th Cir.1997), and Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 563-64 (1st Cir.1996)); see, e.g., Taylor AG Indus., 54 F.3d at 561; Welchert v. American Cyanamid, Inc., 59 F.3d 69, 73 (8th Cir.1995); Lowe v. Sporicidin Int'l, 47 F.3d 124, 129 (4th Cir.1995); MacDonald v. Monsanto Co., 27 F.3d 1021, 1025 (5th Cir.1994); Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir. 1993); Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 981 F.2d 1177, 1179 (10tffh Cir. 1993).
. The General Requirements mandate:
(i) Adequacy and clarity of directions. Directions for use must be stated in terms which can be easily read and understood by the average person likely to use or to supervise the use of the pesticide. When followed, directions must be adequate to protect the public from fraud and from personal injury and to prevent unreasonable adverse effects on the environment, (ii) Placement of directions for use. Directions may appear on any portion of the label provided that the are conspicuous enough to be easily read by the user of the pesticide product
(2) Contents of Directions for Use. The directions for use shall include the following, under the headings "Directions for Use"
(i) The statement of use classification ...
(ii) Immediately below the statement of use classification, the statement "It is a violation of Federal law to use this product in a manner inconsistent with its labeling”
(ix) specific directions concerning the storage and disposal of the pesticide and its container.... These instructions shall be grouped and appear under the heading "Storage and disposal.” This heading must be set in type of the same minimum sizes as required for the child hazard warning (x)(F) Other pertinent information which the Administrator determines to be necessary for the protection of man and the environment.
40 CFR § 156.10.
. FIFRA section 25(a)(1) can be found at 7 U.S.C. § 136w(a)(l).
. FIFRA section 25(c)(3) can be found at 7 U.S.C. § 136w(c)(3).
. Our reliance on Medtronic should not be read as implying that the Supreme Court effectively overruled Cipollone. To the contrary, Cipollone remains good law and provides the basic background for preemption analysis.
. As an alternative argument, Leslie’s Pool Mart contends that although Hawkins couches her claim as “defective packaging,” it is actually a challenge to the sufficiency of the precautionary and warning statements contained on the labels and packaging and is therefore preempted by FIFRA. Appellee’s Br. at 24. This argument is unavailing and Leslie's Pool Mart’s interpretation of Hawkins's claim is misleading. The Complaint specifically accuses Leslie's Pool Mart of failing to package the product in a manner adequate to prevent excessive decomposition, contamination, combustion, or generation of fumes. See Compl. ¶ 18(c); App. 4a.
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MANSMANN, Circuit Judge,
dissenting.
Although I join in Parts I (except as to its affirmance as to labeling-based claims) and 11(B) of the majority’s opinion and agree with the majority’s holding in Part 11(A) that claims based on labeling actually reviewed and approved by the Environmental Protection Agency and claims based on matters addressed therein are preempted under the Federal Insecticide, Fungicide and Rodenticide Act, I must nonetheless dissent from the majority’s determination that Plaintiffs-Appellants’ (collectively, “Hawkins”) claims based on opening directions on the top of the package are also preempted.
Hawkins contends that Mrs. Hawkins was injured as a result of following allegedly faulty opening instructions provided on the top of the container of pool chlori-nator tablets supplied by Defendant-Ap-pellee Leslie’s Pool Mart (“Leslie’s”). The majority rejects Hawkins’s attempt to distinguish these instructions from other package labeling as “hair-splitting” because, under FIFRA, “labeling” includes all “written, printed or graphic matter” accompanying the product, wherever it appears on the container. While it is undoubtedly true that the instructions on the top of the package constitute labeling and are subject to EPA regulation under FI-FRA, I believe that the majority has misconstrued Hawkins’s argument. Hawkins contends that claims based on the package top opening instructions escape preemption not because of the instructions’ location but because they were never reviewed and approved by the EPA.
The majority appears to have rejected Hawkins’s real argument concerning the opening instructions on factual, rather than legal, grounds. According to the majority, “[t]he record ... makes clear that the EPA scrutinized Leslie’s Pool Mart’s proposed labels....” Majority Opinion at pp. 251-52; see also Majority Opinion at p. 255 (“[T]he EPA carefully reviewed- all printed matter that accompanied the chlo-rinator tablets... .”). There is, however, no demonstration in the record that the EPA reviewed and approved the package top instructions at issue. As the party with the burden of proof on its affirmative defense of preemption, Leslie’s is responsible for this deficiency in the record. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (on motion for summary judgment, evidence is to be read in light most favorable to the non-moving party). Moreover, Hawkins expressly asserts that the top opening instructions were not part of the EPA approved labeling, and Leslie’s has not disputed this assertion.
In the present posture of this case, ie., on review of summary judgment, I believe we must assume that the package top instructions were not reviewed and approved by the EPA. Thus, EPA approval gave rise to requirements only with respect to the storage and general handling instructions on the approved labels. Because no statutory or regulatory provision governs the content of opening instructions, I would hold that in the absence of agency review and approval there is no applicable federal “requirement” to which a state law duty as to claims for faulty opening instructions may be different or additional, and therefore there is no preemption under FI-FRA. Moreover, as the majority indicates and as Leslie’s concedes, the inclusion of unapproved labeling material — unilaterally added by the manufacturer — is itself a violation of FIFRA and its implementing regulations. State law causes of action which provide a remedy for conduct that violates FIFRA are not preempted. See, Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir.1993) (“If a state elects to recognize that a breach of a FIFRA-created duty forms the basis for a state remedy, ... it is permitted to do so by 7 U.S.C. § 136v(b).”). Cf. Medtronic, 518 U.S. at 495, 116 S.Ct. at 2255 (“The presence of a damages remedy does not amount to the additional or different ‘requirement’ that is necessary under the statute; rather, it merely provides another reason for manufacturers to comply with identical existing ‘requirements’ under federal law.”).
For these reasons, I believe that Hawkins should be permitted on remand to pursue claims based on the opening instructions if indeed they were not reviewed and approved by the EPA. I express no opinion on whether Hawkins would be able to establish that a defect in those instructions caused her injuries. Because I conclude, however, that FIFRA does not preempt such a claim in these circumstances, I respectfully dissent from this aspect of the majority’s opinion.
. The printed material on top of the container begins with the following:
TO OPEN: PLACE COIN IN GROOVE-PRY AND LIFT LID OFF
. See Majority Opinion at p. 249 (rejecting Hawkins’s ”attempt[] to make the distinction that her claim is based not on the label, but on instructions placed on the lid of the container”).
. But see Majority Opinion at p. 252 (acknowledging that "the approved instructions and warnings do not specify how the user is to pry the lid off the container”).
. See, e.g., Williams v. Ashland Eng’g Co., 45 F.3d 588, 592 n. 7 (1st Cir.), cert. denied, 516 U.S. 807, 116 S.Ct. 51, 133 L.Ed.2d 16 (1995) (recognizing that federal preemption is affirmative defense as to which defendant has burden of proof).
. See also Avirgan v. Hull, 691 F.Supp. 1357, 1368 (S.D.Fla.1988) (when defendant moving for summary judgment bears burden of proof because he is asserting affirmative defense, "he must establish beyond peradventure all of the essential elements of the ... defense to warrant judgment in his favor”).
. See Brief of Appellants at 12 (alleging that front and back EPA registered labels do not refer to opening or closing, while the package lid instructions — not registered with the EPA — do). Hawkins specifically asserts that "The allegedly defective directions on the lid are neither required nor approved under FI-FRA, nor registered with EPA.” Id.
. Indeed, the documentation provided by Leslie’s in its Appendix appears to support Hawkins’s assertion. See Appendix at 13a-16a (Affidavit of Cynthia G. Watts, Leslie’s Vice President and General Counsel, attaching as Exhibit A "a true and accurate copy of the original label for Leslie’s Chlorinator Tablets 1” approved by the EPA in August 1975”). Exhibit A consists of two pages (15a-16a)the front and back labels of the container, each stamped as "ACCEPTED” under FIFRA on August 19, 1975; Appendix at 37a-39a (a portion of Exhibit C, correspondence from the EPA during Leslie's process of modifying and reregistering its labels, showing that Leslie's Certification with Respect to Citation of Data submitted in its application for registration attached two labels only — front and back); Appendix at 60a-62a (Exhibit E, the EPA’s Notice of Reregistration issued on June 20, 1994, which again contains two labels only — front and back).
. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (holding that preemption depends upon agency promulgation of a relevant requirement); see also Majority Opinion at p. 248 (explaining that "pre-emptive effect of FIFRA is dependent on agency regulations”); 7 U.S.C. § 136v(b) (prohibiting slate imposed labeling or packaging requirements that are "in addition to or different from those required under this subchapter”).
. See Brief of Appellee at 11 (citing 7 U.S.C. § 136j(a)(2)(A) and observing that "Thus, no one in the chain of commerce is free to add additional warnings, information or instructions on its own after a particular label has been approved by the EPA.”); see also Majority Opinion at p. 250 ("FIFRA disallows any changes to any EPA-approved label unless the EPA approves the change.”).
. See also Moss v. Parles Corp., 985 F.2d 736, 741 (4th Cir.1993) (following 'Worm in concluding that FHSA does not preempt claim for non-compliance with federally mandated labeling requirements); Nat’l Bank of Commerce of El Dorado v. Kimberly-Clark Corp., 38 F.3d 988, 993 (8th Cir.1994) (“We agree with the conclusions of the Worm and Moss courts and of the district courts cited above that when a statute only preempts state requirements that are different from or in addition to those imposed by federal law, plaintiffs may still recover under state tort law when defendants fail to comply with federal requirements.”).
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LEVAL, Circuit Judge.
Plaintiff-appellants, all persons and entities related to John Syms and the Somerset Group (collectively “Somerset”), appeal from the grant of summary judgment by the United States District Court for the Western District of New York (Richard J. Arcara, J.) in favor of the defendant-appel-lees (collectively “defendants”). The suit sought primarily to recover necessary response costs Somerset had allegedly incurred in the cleanup of hazardous substances, as well as alleged injury to the value of Somerset’s property. The judgment dismissed the claims brought under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Federal Tort Claims Act (FTCA); the court declined to exercise supplemental jurisdiction over the state law claims against defendant-appel-lee Olin Corporation. We affirm in part because (1) Somerset is not eligible to seek contribution under CERCLA § 113(f); (2) its radioactive contamination claims under CERCLA are time-barred; (3) other costs it incurred are not recoverable under CERCLA; and (4) its claims under FTCA are time-barred. We vacate in part and remand because a genuine issue of material fact exists as to whether Somerset incurred recoverable necessary response costs in admitting government officials and contractors onto its property.
BACKGROUND
In 1942, the United States Department of War purchased 7500 acres in Niagara County, New York to establish the Lake Ontario Ordnance Works (LOOW). The Department of War used approximately 2500 acres for a TNT plant and related military activities, leaving the remaining 5000 acres as a buffer zone. TNT production at LOOW ceased in 1943, and the site was thereafter used for the disposal of radioactive waste from uranium processing operations associated with the Manhattan Project and various contaminants from the Army’s chemical warfare service. Waste was left in drums that sat along the roadside for months, in a cooling tower not designed to hold hazardous materials, and in outdoor piles. The government also dug a series of trenches to drain radioactive waste into the Central Drainage Ditch, which flowed into several nearby creeks.
During the 1950s, Olin Corp. operated an experimental fuel production facility at LOOW, which manufactured aviation fuel using boron. The government cancelled Olin’s contract before the plant became fully productive, but Olin remained at LOOW to perform decommissioning activities that included dumping, burying, and burning various chemicals.
In 1966, the government sold 564 acres of LOOW to Fort Conti Corp., which is not a party to this suit. Fort Conti in turn sold 132 acres to Somerset Group in 1970, which was owned by John Syms. Syms also owned or controlled the other plaintiff corporations.
Somerset renovated the buildings on the site between 1970 and 1972 and eventually opened the Lew-Port Industrial Park. In April 1972, the New York Department of Health issued an order restricting the use of the site, citing concern about exposure to radioactive material. The Department of Health instructed Somerset not to develop the property any further or to allow any existing uses to expand. It further specified that decontamination efforts undertaken by anyone other than the government could proceed only with the express approval of the Department of Health.
Somerset cancelled its tenants’ leases, extended fencing around the entire site, and hired guards to secure the property. John Syms then mounted a lobbying campaign in Albany and Washington, D.C. to obtain relief. In 1974, the Department of Health issued a supplementary order authorizing Somerset to resume commercial and industrial activities on most of the site. The order continued to prohibit construction in the areas around the Central Drainage Ditch and Six Mile Creek. After issuance of the order, Somerset began attracting new tenants, but in late 1974 the Town of Lewiston cut off the water supply to the site out of concern that contamination would enter the water while it circulated through the site.
Somerset filed for bankruptcy in 1980. At the prompting of the bankruptcy court, Somerset sold 93 acres of the site to its neighbor, which operated an industrial waste landfill on the adjacent property.
Between 1982 and 1984, the government began to consolidate radioactive contamination across LOOW into a 191-acre area known as the Niagara Falls Storage Site (NFSS). The NFSS is located a half-mile from the site and connected to it by the Central Drainage Ditch. As part of the consolidation, a government contractor removed soil and silt along the Central Drainage Ditch and several other parts of the property. The Department of Energy wrote to Somerset on December 29, 1986 to inform it that “the results of the post-remedial action radiological surveys have been verified and that remedial action on your property has been satisfactorily completed.” The letter explained that the property was “in compliance with the standards and guidelines applicable to the remedial actions at the Niagara Falls Storage Site.” It indicated that- a “formal certification statement on your property will be forwarded to you in the near future.” The certificate was not sent until May 7, 1992.
Meanwhile, Somerset continued pushing for cleanup of the nonradioactive contamination on its property. In 1998, the Army Corps of Engineers commenced a Phase I Remedial Investigation/Feasibility Study and performed interim asbestos abatement on Somerset’s property. In 1999, the Army Corps released preliminary results from its investigation at a public meeting where Somerset allegedly learned for the first time that the groundwater was contaminated with lithium and an explosive known as RDX.
On August 25,1999, Somerset submitted a demand and claim letter to the Department of Justice, seeking to recover response costs it allegedly incurred in the cleanup of hazardous substances and damages for injury to the value of its property. The government denied the claim. Having exhausted its administrative remedies, Somerset filed this suit in the Western District of New York on August 23, 2000. It alleged fifteen causes of action under CERCLA, 42 U.S.C. § 1983, various provisions of New York statutory and common law, and the Federal Tort Claims Act (FTCA). Somerset asserted all fifteen causes of action against the government, and all but four against Olin.
All parties filed for summary judgment. The magistrate judge recommended granting defendants summary judgment on the CERCLA claims, because it considered Somerset to be a potentially responsible party ineligible for cost recovery under § 107(a), and because Somerset had failed to demonstrate that the response costs it incurred were necessary and in conformance with the national contingency plan. In the alternative, the magistrate judge concluded that Somerset’s CERCLA § 107(a) recovery claim was time-barred with respect to radioactive contamination. The magistrate judge also recommended granting the government summary judgment on the § 1983 claim, because § 1983 provides a cause of action against persons acting under color of state law, not persons acting under color of federal law. As for claims under the FTCA, the magistrate judge recommended granting the government summary judgment under the FTCA’s two-year statute of limitations. See 28 U.S.C. § 2401(b). In the alternative, the magistrate judge suggested that the discretionary function exception to the FTCA shielded the government from liability, except on Somerset’s claim of failure to warn. The magistrate judge recommended that the district court decline to exercise supplemental jurisdiction over the state law claims against Olin.
The district court partially adopted the reasoning of the magistrate judge’s report. It granted defendants summary judgment on the CERCLA claims on the ground that Somerset had failed to demonstrate the necessity of its response costs. It granted the government summary judgment on the FTCA claims by reason of untimeliness. Finally, the district court declined to exercise supplemental jurisdiction over the remaining state law claims against Olin. Somerset then brought this appeal.
DISCUSSION
We review the district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to Somerset as the nonmoving party and drawing all reasonable inferences in its favor. See Anthony v. City of New York, 339 F.3d 129, 134 (2d Cir.2003).
I. CERCLA
CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), provides two primary mechanisms for private parties to recover costs incurred in response to the release or threatened release of a hazardous substance: a cost recovery action under § 107(a), and suit for contribution under § 113(f). Somerset filed claims under both § 107(a) and § 113(f) seeking to recover costs incurred for: (1) security fencing installed in the mid-1970s; (2) security guards and guard dogs; (3) the provision of an alternative water supply; (4) the presence of John and Eileen Syms to admit contractors to the site; (5) John Syms’s travel to meet with government officials in the late 1970s; (6) a set of as-built drawings purchased in the late 1970s; (7) maintenance of the property; (8) damage caused by workers removing asbestos in 1998; (9) the investigative activities of counsel; (10) a survey conducted in 2000 of radioactive contamination in the Central Drainage Ditch; and (11) future medical monitoring.
While this case was pending on appeal, the Supreme Court held that a private party cannot obtain a judgment for contribution under § 113(f) unless it has been sued under § 106 or § 107(a). Cooper Indus., Inc. v. Aviall Servs., Inc., — U.S. -, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004). Because Somerset has not been sued under § 106 or § 107(a), it is ineligible to seek contribution under § 113(f). We therefore affirm the district court’s grant of summary judgment to defendants on Somerset’s § 113(f) claim, and focus for the remainder of this discussion on Somerset’s § 107(a) claim.
Section 107(a) imposes strict liability, subject to certain defenses, on four classes of potentially responsible persons (PRPs): (1) current owners and operators of contaminated facilities; (2) previous owners and operators of such facilities; (3) generators of hazardous substances; and (4) transporters of hazardous substances. 42 U.S.C. § 9607(a); Bedford Affiliates v. Sills, 156 F.3d 416, 423 (2d Cir.1998). The definition of “person” includes the federal government. 42 U.S.C. § 9601(21). A private party may sue a PRP under § 107(a) to recover “necessary costs” of responding to the release, or threatened release, of hazardous substances, “consistent with the national contingency plan.” Id. § 9607(a)(4)(B); Bedford Affiliates, 156 F.3d at 427.
CERCLA defines the term “response” as encompassing both “removal” efforts and “remedial actions.” 42 U.S.C. § 9601(25). Broadly speaking, removal includes efforts to clean up a site, prevent the threatened release of hazardous substances, and dispose of removed material. Id. § 9601(23). Remedial action includes more permanent efforts to store, confine, recycle, or destroy hazardous substances. Id. § 9601(24).
A. Statute of Limitations
The applicable statute of limitations under CERCLA varies depending on whether response costs were incurred in connection with a removal or remedial action. For suits under § 107(a), a plaintiff has three years after completion of a removal action to file suit. 42 U.S.C. § 9613(g)(2)(A). If a remedial action is commenced within three years of the completion of a removal action, the statute of limitations for removal costs is tolled and the plaintiff may recover the removal costs at the time he recovers any remedial costs. Id. § 9613(g)(2)(B). A suit to recover remedial costs must be filed within six years after “initiation of physical on-site construction of the remedial action.” Id.
The district court did not discuss the statute of limitations in dismissing Somerset’s § 107(a) claims for radioactive contamination, but the magistrate judge concluded that these claims are time-barred. We agree with the magistrate judge. See ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir.2003) (“Our court may, of course, affirm the district court’s judgment on any ground appearing in the record, even if the ground is different from the one relied on by the district court.”).
The government completed cleaning Somerset’s property in 1986. It informed Somerset of its progress in December 1986, and sent Somerset a formal certificate of compliance on May 7, 1992. Even if the six-year statute of limitations had not begun running until Somerset received the certificate, the time for filing a cost recovery action for all response costs resulting from radioactive contamination expired at the latest on May 7,1998. Somerset did not file its demand and claim letter until August 25, 1999. Its action under § 107(a) with respect to radioactive contamination cleaned up in 1986 is accordingly time-barred.
B. Necessity of Other Response Costs
Section 107(a)(4)(B) establishes liability for “necessary costs of response.” 42 U.S.C. § 9607(a)(4)(B) (emphasis added). The district court concluded that the response costs incurred by Somerset were not necessary to address a threat to human health or the environment. We affirm the judgment of the district court with respect to non-time-barred costs involving physical maintenance of the site; damage caused during asbestos removal; the activities of counsel; the 2000 survey of the Central Drainage Ditch; individual medical monitoring; and time spent on the site merely in anticipation that a government official or contractor might need to be given access. We conclude, however, that a genuine issue of material fact precludes summary judgment with respect to non-time-barred costs incurred in actually providing the government with access to the site.
1. Physical Maintenance of Site
Somerset seeks recovery of costs it incurred to patch roadways, mow grass, and plow snow. This routine physical maintenance helped government contractors access Somerset’s property. Somerset has not demonstrated, however, that it undertook the maintenance to facilitate clean-up efforts. In fact, John Syms candidly admitted in his deposition that the roadway patching and snow removal did not “relate to the investigation or cleanup of any contamination.”
2. Damage Caused During Asbestos Removal
Somerset seeks compensation for damage allegedly caused in 1998 by government contractors performing asbestos abatement. Somerset initially wrote the Army Corps of Engineers demanding $184,018 for the damage. At his deposition, however, John Syms could recall spending only $1000 to replace a broken telephone pole.
Costs incurred to repair damage caused by clean-up crews are not usually recoverable under CERCLA. See Bello v. Barden Corp., 180 F.Supp.2d 300, 309 (D.Conn.2002). In Bello, the plaintiff intended to spend $2680 to clear debris left behind after a clean-up operation conducted by the EPA and sought a declaratory judgment under CERCLA forcing the government to pay for it. Id. at 304. The district court denied the claim because the plaintiff had failed to indicate in its complaint that it would incur the future costs consistent with the national contingency plan. Id. at 308. In the alternative, the district court stated that even if the complaint were amended, the plaintiff would not be able to recover the debris-clearing expenses under CERCLA. The district court reasoned that a response is necessary within the meaning of the statute only when it addresses a threat to human health or the environment posed by a hazardous substance. Any such threat had abated when the EPA finished its clean-up, and therefore the plaintiff should have sought compensation through a suit for property damage. Id. at 309. We agree with the reasoning of the Bello court. Repair of damage caused during clean-up of contamination gives rise to an ordinary tort action, not a cost recovery action under CERCLA.
3. Activities of Counsel
Somerset seeks to recover the costs associated with counsel’s efforts reviewing historical documents, analyzing boxes of data related to contamination, attempting to identify other PRPs, commenting on work plans, and facilitating site access. The leading case dealing with the recovery of attorney’s fees is Key Tronic Corp. v. United States, 511 U.S. 809, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). The Supreme Court held in Key Tronic that private litigants may not recover litigation-related and settlement-related attorney’s fees as a necessary cost under CERCLA, but that not “all payments that happen to be made to a lawyer are unrecoverable expenses” and “some lawyers’ work that is closely tied to the actual cleanup may constitute a necessary cost of response.” Id. at 819-20, 114 S.Ct. 1960. Specifically, it held that the expenses counsel had incurred uncovering the Air Force’s disposal of wastes, which in turn prompted the EPA to initiate an enforcement action against the Air Force, were recoverable. The Court reasoned that tracking down other polluters benefits overall clean-up efforts in a way that litigation to apportion costs does not. Id. at 820, 114 S.Ct. 1960. We have similarly stated that “expenses incurred solely in preparation for litigation cannot be recovered as response costs unless they significantly benefited the entire cleanup effort and served a statutory purpose apart from the reallocation of costs.” Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 92 (2d Cir.2000) (per curiam) (internal quotation marks omitted).
Somerset has not presented evidence that its efforts uncovered the identity of any PRPs. The government was already aware of din’s activities, and there is no evidence in the record that Somerset’s du-plicative identification of Olin significantly benefited the overall clean-up effort.
The other legal activities, such as negotiating site access, also fail to qualify as necessary response costs. In Key Tronic, counsel supervised studies during its negotiations with the EPA that may have affected the scope and form of the clean-up. 511 U.S. at 820, 114 S.Ct. 1960. The Supreme Court held that Key Tronic could not recover these costs because counsel was “primarily protecting Key Tronic’s interests as a defendant in the proceedings that established the extent of its liability.” Id. The same reasoning applies in this case. Even though the site access negotiations were not directly related to litigation, they primarily protected the interests of Somerset as the landowner and do not constitute necessary response costs.
4. Survey of Radioactive Contamination in the Central Drainage Ditch
Somerset’s attorneys hired contractors to perform a limited radiological investigation of the Central Drainage Ditch after learning in 2000 that the government had no intention of reinvestigating the ditch. Somerset was concerned by recent reports of radioactive contamination leaking from the NFSS, which is located a half-mile from its property and connected to it by the Central Drainage Ditch. The study found trace levels of radiation, but the results were inconclusive. Somerset forwarded the results to the Army Corps of Engineers.
Defendants claim the tests were not necessary response costs because they were performed in preparation for litigation. Although John Syms admitted in his deposition that the testing was not done for the purpose of preparing to clean-up the Central Drainage Ditch, he denied that the testing was litigation-related. A genuine issue of material fact .therefore exists as to the motivation for the testing.
Summary judgment was nevertheless appropriate for a different reason. The parties do not dispute that Somerset's attorneys paid for the testing. Somerset has not reimbursed them, and there is no evidence in the record that it is obligated to do so. Somerset therefore has not actually incurred any response costs related to the 2000 testing, as far as the record discloses, and cannot maintain a suit under § 107(a) to recover those costs.
5. Medical Monitoring
Eileen Syms seeks a declaratory judgment requiring defendants to pay for future medical monitoring. Although district courts have split on the issue, the only two courts of appeals to consider the matter have concluded that such private monitoring of an individual’s health is not a valid response cost under CERCLA. See Price v. U.S. Navy, 39 F.3d 1011, 1015-17 (9th Cir.1994); Daigle v. Shell Oil Co., 972 F.2d 1527, 1537 (10th Cir.1992). In Daigle, the plaintiffs argued that CERCLA covers medical monitoring for two reasons. First, the definition of removal includes “such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may he necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.” 42 U.S.C. § 9601(23) (emphasis added). Second, the definition of remedial action includes “any monitoring reasonably required to assure •that such actions protect the public health and welfare.” Id. § 9601(24).
The Tenth Circuit concluded that the monitoring mentioned by the statute, when read in context, refers to monitoring necessary to prevent contact with hazardous substances, not monitoring to detect future disease based on prior exposure to hazardous substances. Daigle, 972 F.2d at 1535. It" noted that both houses of Congress had rejected bills providing damages for personal injury and medical expenses. Id. at 1535-36. In addition, CERCLA separately provides for public health monitoring through the Agency for Toxic Substances and Disease Registry. See 42 U.S.C. § 9604(i).
We agree with the Tenth and Ninth Circuits. Eileen Syms is not entitled under CERCLA to a declaratory judgment requiring defendants to pay for individual medical monitoring related to her prior exposure to hazardous substances.
6. Presence on Site to Admit Contractors
Somerset claims that various site access agreements with the 1 government “required” John and Eileen Syms “to be present every business day” to let government officials and contractors onto the property. This “requirement” allegedly arose because contractors failed to provide proper notice of their visits as mandated by the site access agreement. Because the Syms could have easily avoided the need to remain constantly on the site by insisting that contractors announce their visits in advance, time spent on the site merely in anticipation that a government official or contractor might show up cannot be considered a necessary response cost.
As for the amount of time spent actually admitting contractors to the site, the extent of which is unclear from the record, we conclude that a genuine issue of material fact precludes summary judgment. Somerset has failed to specify precisely what steps it took to admit contractors, when it took those steps, and what the circumstances were at the time. The record does indicate in general terms, however, that John and Eileen Syms spent some time admitting government officials and contractors to the site in connection with the Remedial Investigation/Feasibility Study commenced in 1998 and the interim asbestos abatement conducted in the same year. This is sufficient to raise a genuine issue of material fact as to whether the Syms incurred necessary response costs while actually admitting government officials and contractors to the site. We therefore remand the case to the district court on this limited point.
C. Somerset’s Eligibility to Sue Under § 107(a)
We held in Bedford Affiliates that a plaintiff who is also a PRP may not bring a cost recovery action under § 107(a) and is instead limited to suing for contribution under § 113. 156 F.3d at 424. Defendants allege that Somerset is a PRP because it contributed to the contamination of its property by leasing a parcel to its neighbor to use as a landfill. Defendants accordingly argue that Somerset cannot sue under § 107(a). Somerset responds that it is not a PRP and that the Supreme Court’s ruling in Cooper Industries has fatally undermined Bedford Affiliates.
The district court did not expressly consider whether Somerset was eligible to sue under § 107(a) because, assuming Somerset could sue, it reasoned that the costs incurred were not necessary within the meaning of CERCLA. Because we eon-elude that summary judgment should not have been granted with respect to certain costs Somerset incurred while admitting government officials and contractors to the site, we must decide whether to address Somerset’s eligibility to sue under § 107(a). Although we have the authority to affirm the district court opinion on any basis supported by the record, ACEquip, 315 F.3d at 155, we decline to exercise that authority with respect to determining whether Somerset is a PRP or whether the rule announced in Bedford Affiliates remains viable after Cooper Industries. Cooper Industries was decided after oral argument was held in this case, and the parties have not fully briefed or argued its impact on Bedford Affiliates. We therefore believe the best course is simply to vacate the judgment and to allow the district court to address in the first instance the issue of Somerset’s eligibility to sue under § 107(a).
II. Federal Tort Claims Act
The FTCA waives the federal government’s sovereign immunity “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The statute looks to state substantive law to determine whether the plaintiff has a valid cause of action. The federal government, however, does not stand on the same footing as a private party with respect to the accrual and timeliness of claims. The FTCA’s statute of limitations provides that a “tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b).
The date on which an FTCA claim accrues is determined as a matter of federal law. See Kossick v. United States, 330 F.2d 933, 935 (2d Cir.1964); Quinton v. United States, 304 F.2d 234, 235 (5th Cir.1962); see also Tyminski v. United States, 481 F.2d 257, 262-63 (3d Cir.1973) (collecting cases). But see Hau v. United States, 575 F.2d 1000, 1002 (1st Cir.1978) (following lex loci rule, but noting uniqueness of this position among circuits). Depending on the circumstances, claims accrue either at the time of injury or when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the facts giving rise to the cause of action. See, e.g., United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Kronisch v. United States, 150 F.3d 112, 121 (2d Cir.1998); Barrett v. United States, 689 F.2d 324, 327 (2d Cir.1982). In environmental cases involving latent contamination, courts have generally applied the discovery rule. See, e.g., Plaza Speedway, Inc. v. United States, 311 F.3d 1262, 1268 (10th Cir.2002); Muth v. United States, 1 F.3d 246, 249 (4th Cir.1993).
The statute of limitations has clearly run on the harm caused by radioactive contamination. Somerset was aware of this contamination by 1972 at the latest, but failed to file an administrative claim for over twenty-seven years.
The nonradioactive contamination requires further discussion. The district court concluded that Somerset was sufficiently aware of the existence of contamination on its land that its claim accrued under federal law more than two years before it filed its administrative claim. The district court accordingly considered Somerset’s FTCA claims to be time-barred. Somerset argues on appeal that its action was timely because (1) new causes of action keep arising each day under the continuing tort doctrine; (2) its claims based on the presence of lithium and RDX were separate and distinct injuries and timely because the contamination was only revealed in 1999; and (3) the government is estopped from arguing that Somerset should have discovered the contamination earlier because it fraudulently advised Somerset that its property was clean.
A. Continuing Tort Doctrine
Somerset argues that the district court erred when it refused to apply the continuing tort doctrine to its case. The continuing tort doctrine is based on the idea that certain torts continually give rise to new causes of action, which can be brought notwithstanding the expiration of the limitations period for prior causes of action. For example, the operation of a nuisance on one piece of land might diminish the enjoyment of the neighboring piece of land. Awarding damages for permanent loss of property value suffered by the neighbor would not necessarily be appropriate because the operation of the nuisance might cease at any time. The continuing tort doctrine instead recognizes new causes of action as long as the nuisance continues and thereby allows the plaintiff to return to court periodically to recover the damages suffered since the last period compensated. A disadvantage to the use of this doctrine is that it results in serial litigation, potentially without end, at enormous cost and great inefficiency.
A handful of cases have applied the continuing tort doctrine to claims against the federal government under the FTCA. See, e.g., Hoery v. United States, 324 F.3d 1220, 1223-24 (10th Cir.2003); Arcade Water Dist. v. United States, 940 F.2d 1265, 1269 (9th Cir.1991); Gross v. United States, 676 F.2d 295, 300 (8th Cir.1982); Kennedy v. United States, 643 F.Supp. 1072, 1079 (E.D.N.Y.1986).
The government argues that these cases were incorrectly decided. It contends that allowing a state continuing tort theory to create new causes of action under the FTCA would effectively undermine Congress’s interest in creating a nationally uniform limitations period and interfere with the principle that accrual is a matter of federal law. In the alternative, the government argues that a continuing tort theory resets the accrual date for a claim only when there are “continuing wrongful overt acts, not simply continuing injury.”
Somerset responds that the government overstates Congress’s interest in uniformity because, by incorporating state substantive law, the FTCA already tolerates a great deal of variation from state to state in whether behavior will be considered tor-tious. Somerset also contends that the continuing tort doctrine, properly understood, is not an accrual rule, but rather a rule of substantive state law authorizing multiple causes of action that sequentially arise as tortious behavior persists.
We need not decide whether a continuing tort claim might be valid under the FTCA, notwithstanding the fact that accrual is governed by federal law, in order to resolve the FTCA claim before us. Even assuming a continuing tort claim could be brought under the FTCA to recover damages for injuries sustained in the two years before the filing of the claim, such a claim would have to be valid under local law, and Somerset may not bring such a suit because New York law no longer recognizes the existence of the continuing tort doctrine in latent exposure cases seeking money damages.
Historically, New York’s statute of limitations generally began to run at the time of injury. Over the years, however, a “narrow common-law exception evolved to ameliorate the harshness of this accrual rule with respect to some particular continuous wrongs.” Jensen v. General Elec. Co., 82 N.Y.2d 77, 85, 623 N.E.2d 547, 550, 603 N.Y.S.2d 420, 423 (1993). In a seminal case, for example, the New York Court of Appeals allowed a landowner to sue an elevated railroad for nuisance a year after the limitations period expired because the continued operation of the railroad cut off light, air, and access to plaintiffs property. Galway v. Metro. Elevated Ry. Co., 128 N.Y. 132, 28 N.E. 479 (1891). See also 509 Sixth Ave. Corp. v. New York City Transit Auth., 15 N.Y.2d 48, 51-53, 203 N.E.2d 486, 487-88, 255 N.Y.S.2d 89, 91-92 (1964) (extending Galway to subterranean encroachment by railway line not discovered for twenty-one years). New York courts also applied the continuing tort doctrine in some environmental contamination cases. See Kearney v. Atl. Cement Co., 33 A.D.2d 848, 849, 306 N.Y.S.2d 45, 46-47 (3d Dept. 1969) (continuing production of noise, vibrations, and dust at cement plant); Kulpa v. Stewart’s Ice Cream, 144 A.D.2d 205, 207, 534 N.Y.S.2d 518, 520 (3d Dept. 1988) (continuing contamination from leaking gasoline tank drained and replaced more than three years earlier); Amax, Inc. v. Sohio Indus. Prods. Co., 121 Misc.2d 814, 469 N.Y.S.2d 282, 284-85 (1983) (radioactive contamination from plant which ceased production fourteen years before plaintiff discovered contamination and nineteen years before plaintiff filed suit); State v. Schenectady Chems., Inc., 117 Misc.2d 960, 459 N.Y.S.2d 971, 977 (1983) (applying doctrine to dumping of chemicals that polluted water fifteen to thirty years later), aff'd as modified, 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dept.1984); see also Rapf v. Suffolk County, 755 F.2d 282, 290-92 (2d Cir.1985) (applying continuing tort doctrine under New York law). But many courts adhered to the rule that the statute of limitations begins running on the date of injury. See, e.g., Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 433, 615 N.E.2d 999, 1001, 599 N.Y.S.2d 515, 517 (1993); Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 1010, 430 N.E.2d 1297, 1299, 446 N.Y.S.2d 244, 246 (1981); see also Jensen, 82 N.Y.2d at 85, 623 N.E.2d at 550, 603 N.Y.S.2d at 423 (citing cases).
In 1986, the legislature enacted a discovery rule for environmental contamination cases. See N.Y. C.P.L.R. § 214-c. The relevant part of the statute states:
Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.
Id. § 214-c(2).
The New York Court of Appeals considered in Jensen v. General Electric Co. whether the continuing tort doctrine remains applicable in latent exposure cases following passage of § 214-c. Jensen involved contamination at a General Electric (GE) plant operated between 1958 and 1969. Pursuant to a settlement with the State Department of Environmental Conservation, GE obtained plaintiff Perkett’s permission to install monitoring wells on her nearby property. The wells revealed a large toxic plume extending beneath Perkett’s property. GE sent Perkett a letter in 1984 informing her of the contamination and a copy if its report with her property outlined in black ink. When plaintiff Jensen took title to the property as Perkett’s co-tenant in 1986, GE forwarded the same information to him. Plaintiffs eventually filed suit in 1990. Jensen, 82 N.Y.2d at 82, 623 N.E.2d at 548, 603 N.Y.S.2d at 421. The Supreme Court granted GE’s motion to dismiss the case as time-barred under § 214r-c, but the Appellate Division reversed on a continuing trespass and continuing nuisance theory. The New York Court of Appeals subsequently reversed the Appellate Division. It acknowledged that the legislature had enacted § 214-c “to open otherwise closed courthouse doors” kept shut by the time of injury rule, but concluded that the legislature had intended to create a single discovery rule and thereby eliminate the continuing tort doctrine. Id., 82 N.Y.2d at 83-85, 623 N.E.2d at 549-50, 603 N.Y.S.2d at 422-23. The court reasoned that the continuing tort doctrine had grown “out of a jurisprudential climate and landscape where there was no discovery rule,” and that § 214-c had eliminated the need for the doctrine by creating a new regime that carefully balances plaintiffs’ interest in recovering damages for undiscovered latent injuries against defendants’ interest in repose. Id., 82 N.Y.2d at 87-88, 623 N.E.2d at 551-52, 603 N.Y.S.2d at 424-25; see also Town of New Windsor v. Tesa Tuck, Inc., 919 F.Supp. 662, 674-75 (S.D.N.Y.1996) (holding that Jensen bars application of the continuing tort doctrine to public nuisance suits for money damages).
Because there is no longer any basis in New York law for applying the continuing tort doctrine to Somerset’s suit for damages, we need not decide whether the continuing tort doctrine can be used to revive an otherwise untimely suit under the FTCA.
B. Application of the Discovery Rule
Somerset’s FTCA claims will be considered untimely if Somerset knew, or should have known, about the nonradioactive contamination on its land by August 25, 1997, two years before it filed its demand and claim letter. The record contains numerous indications that Somerset knew about nonradioactive contamination well before 1997. John Syms attended a public meeting in 1988 at which the government briefed the public about nonradioaetive contamination at the LOOW. A document recounted a separate 1988 meeting with a government contractor at which Syms discussed the TNT production plant and pointed out both asbestos and a pit containing PCBs. Another document from 1988 reported on the presence of asbestos, PCBs, and a reservoir containing an “odd smelling liquid.” Somerset’s complaint states: “In 1988, pressure began to mount from Mr. Syms and others in the community to conduct a more thorough investigation of not only the Radioactive Contamination but other types of Contamination at the LOOW.” (emphasis added).
John Syms admitted in his deposition that he knew by 1990 that his property had been contaminated. In that year, he wrote a letter with an attachment identifying “chemical waste lands” at Air Force Plant 68. Somerset later received a letter from the Army Corps of Engineers in 1992 informing it in no uncertain terms that the “[r]esults of the [site investigation] confirmed the presence of contamination at the site.” Somerset then wrote a letter to President Clinton four months later complaining about the Army Corps’ decision to take additional samples when existing surveys already “show[ed] the type of materials that have to be removed.” This evidence, viewed in the light most favorable to Somerset, nevertheless indicates that Somerset clearly knew by 1993 at the latest that its land was polluted by nonradioactive contaminants. Somerset has not argued to the contrary.
A jury could reasonably find, however, that Somerset’s actual knowledge was limited to the presence of asbestos and PCBs. The question under the discovery rule, therefore, is whether Somerset should have discovered the presence of other contaminants through the exercise of reasonable diligence.
We agree with the district court that the presence of so many warning signs — the history of TNT production near the site, the asbestos, the PCBs, the unidentified “odd smelling” liquid, and the presence of a hazardous waste dump next door— should have prompted an investigation. Such an inquiry easily could have uncovered the New York State Assembly’s 1981 public report documenting a “vast network of underground waste lines with TNT wastes and residues” and reporting that “neither the areas above or below-ground were ever fully decontaminated by the Army when the property was declared surplus.”
C. Estoppel Based on Fraud
Somerset claims the government is estopped from arguing that it should have known about RDX and lithium contamination because the government assured it in 1986 and 1992 that it had cleaned the property. The 1986 letter and 1992 certificate of compliance discuss only the clean-up of radioactive contamination. They do not purport to say anything about nonradioactive contamination, and there is consequently no basis for concluding that the government fraudulently led Somerset to believe its property was free from nonradioactive contamination.
CONCLUSION
We have considered Somerset’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is affirmed in part, vacated in part, and remanded for proceedings consistent with this opinion.
. Section 101(23) of CERCLA stales:
The terms "remove” or "removal” means [sic] the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without- being limited to, security fencing or other measures to limit access, provision-of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under [42 U.S.C. § 9604(b) ], and any emergency assistance which may be provided under the Disaster Relief Act and Emergency Assistance Act.
42 U.S.C. § 9601(23).
. Section 101(24) of CERCLA states:
The terms "remedy” or "remedial action” means [sic] those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.
42 U.S.C. § 9601(24).
. We refer only to the contamination that was discovered in the 1970s and cleaned up in 1986. Somerset has alleged that the NFSS is leaking new radioactive contamination. The survey of the Central Drainage Ditch conducted in 2000, which is the only cost arguably incurred in response to this new contamination, is discussed separately below.
. Specifically, the statute of limitations has run on Somerset's attempt to recover the costs of security fencing installed in the mid-1970s to protect trespassers against exposure to radioactive contamination; security guards deployed from 1972-1980; guard dogs purchased in 1972; the alternative water supply Somerset provided after the Town of Lewis-town cut off service in 1974; John Syms’s travel to meet with government officials in the late 1970s; a set of as-built drawings purchased in the late 1970s; and the effort John and Eileen Syms expended admitting contractors to the site and maintaining the property during the radiological clean-up. There is no evidence in the record that these costs were incurred in response to anything other than radioactive contamination. Because the statute of limitations has run, we express no opinion on whether any of the costs would have been recoverable in a timely action.
. The one court of appeals case cited by Somerset in support of its argument involved a claim for medical monitoring brought under state law, not CERCLA. See In re Paoli R.R. Yard PCB Litig., 113 F.3d 444 (3d Cir.1997).
. Section 104(e) provides the government with a qualified right to enter contaminated property and the right to commence a civil action to compel access if it is denied. See 42 U.S.C. § 9604(e)(3)-(5). Defendants have not argued that this provision evinces an intent to exclude from the definition of response costs time spent admitting government officials to a contaminated site. We therefore do not address that question.
. The scope of the remand is also limited by our holding that the statute of limitations has run on costs incurred in response to radioactive contamination cleaned up in 1986.
. Bedford Affiliates expressed concern that § 113(f) would be rendered superfluous if PRPs could choose whether to bring suit under § 107(a) or § 113(f), because PRPs would always choose to proceed under § 107(a), which provides a more generous statute of limitations in certain circumstances, compare § 42 U.S.C. § 9613(g)(2), with id. § 9613(g)(3), and provides for joint and several liability unless a defendant proves the harm is divisible. Bedford Affiliates, 156 F.3d at 424. Somerset, in a letter filed pursuant to Federal Rule of Appellate Procedure 28(j), argues that Cooper Industries partially undermines this portion of Bedford Affiliates’ reasoning by clarifying that a PRP can seek contribution under § 113(f) only after being sued under § 106 or § 107(a). Together, Cooper Industries and Bedford Affiliates leave a PRP with no mechanism for recovering response costs until proceedings are brought against the PRP. This might discourage PRPs from voluntarily initiating clean-up, contrary to CERCLA's stated purpose of "induc[ing] such persons voluntarily to pursue appropriate environmental response actions with respect to inactive hazardous waste sites.” H.R.Rep. No. 96-1016(1), at 17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6120. This is because if a PRP remediates a facility on its own initiative, it reduces the likelihood that it will be sued under § 106 or § 107(a), and thereby jeopardizes its opportunity to seek contribution under § 113(f) from other PRPs. The combination of Cooper Industries and Bedford Affiliates, if the latter remains unaltered, would create a perverse incentive for PRPs to wait until they are sued before incurring response costs.
. We similarly express no. opinion on defendants’ argument, upon which the district court made no ruling, that Somerset is ineligible to recover response costs because it failed to comply with the national contingency plan, as required by § 107(a)(4)(A). See 42 U.S.C. 9607(a)(4)(A). We leave it to the district court to rule on this contention in the first instance.
. The New York Court of Appeals determined that § 214-c, which by its terms covers actions "to recover damages,” does not alter the availability of injunctive relief in equity under a continuing tort theory. Jensen, 82 N.Y.2d at 89-90, 623 N.E.2d at 553, 603 N.Y.S.2d at 426; see also Bano v. Union Carbide Corp., 361 F.3d 696, 713 (2d Cir.2004). This exception does not help Somerset, however, because it has not sought injunctive relief.
. Somerset argues that under New York’s “two-injury” rule it may bring separate causes of action for soil contamination and groundwater contamination, and that notice (whether actual or constructive) of one injury does not necessarily provide notice of the other. See Bimbo v. Chromalloy Am. Corp., 226 A.D.2d 812, 815-16, 640 N.Y.S.2d 623, 625-26 (3d Dept. 1996). We need not decide whether the two-injury rule creates distinct causes of action in a suit under the FTCA because the relevant question under the two-injury rule and the federal discovery rule is the same in the context of this case: Given Somerset’s knowledge of other nonradioactive contamination, did Somerset know, or through the exercise of reasonable diligence should it have known, about the presence of RDX and lithium in its groundwater?
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The following is a judicial opinion. Please determine if the opinion is an environmental law case by listing 1 (if it is) or 0 (if not). Some examples of environmental law cases are those which address issues regarding the environment, human health, natural resources, and other related topics.
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OPINION OF THE COURT
ADAMS, Circuit Judge.
One of the assumptions upon which our society is premised is that technological advancement will be encouraged and material comfort will be increased by rewarding innovation with profit. Long ago, Sir Edward Coke noted that “everyone thirsteth after gaine,” and, by and large, the law recognizes that experimentation and innovation will be persisted in only to the degree that an opportunity for “gaine” is presented. This may be especially so today when our continued efforts in scientific research depend almost as much on those who are willing to fund them as on the ingenuity of the researchers themselves.
But the recognition of the desirability of encouraging technological advancement does not mean that the Congress, if it chooses to do so, may not diminish innovation to some degree in order to further some other purpose. Nor does it mean that courts may refuse to give effect to such a legislative decision even if they suspect that the “other purpose” guiding the legislature will be disserved rather than furthered by the statute in question. This is so because Congress is entitled to make its own judgments in this area and once they are made the judiciary must respect them even if its own assessments are to the contrary.
1. DOW’S CHALLENGE TO THE EPA’S INTERPRETATION OF SECTION 8(d) OF TOXIC SUBSTANCES CONTROL ACT.
The present appeal is by Dow Chemical Company, which charges that the Environmental Protection Agency (EPA) is misread its statutory mandate in seeking, under § 8(d) of the Toxic Substances Control Act, 15 U.S.C. § 2607(d) (1976), to obtain information and studies regarding research and development projects undertaken by a commercial enterprise, when such research and development are ultimately expected to produce a profitable product. Section 8(d) provides:
(d) Health and safety studies. — The Administrator shall promulgate rules under which the Administrator shall require any person who manufactures, processes, or distributes in commerce or who proposes to manufacture, process, or distribute in commerce any chemical substance or mixture (or with respect to paragraph (2), any person who has possession of a study) to submit to the Administrator—
(1) lists of health and safety studies (A) conducted or initiated by or for such person with respect to such substance or mixture at any time, (B) known to such person, or (C) reasonably ascertainable by such person, except that the Administrator may exclude certain types or categories of studies from the requirements of this subsection if the Administrator finds that submission of lists of such studies are unnecessary to carry out the purposes of this Act; and
(2) copies of any study contained on a list submitted pursuant to paragraph
(1) or otherwise known by such person. Guidance in interpreting § 8 is provided by the following definition in subsection (f):
“For purposes of this section, the terms ‘manufacture’ and ‘process’ mean manufacture or process for commercial purposes.” The dispute in the case at hand concerns the scope of the authority given the Administrator under § 8.
Congress passed the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629 (1976), in order to prevent the general environment from becoming the laboratory in which harmful effects of chemicals are discovered. The Act establishes an intricate and at times unfathomable system of regulation administered by the EPA. It places the burden of ensuring adequate research and testing of toxic substances squarely on those companies who seek to profit from the use or sale of such chemicals.
One of the most important provisions of the Act is § 4, which gives the Administrator the authority to require that certain companies — those that manufacture, distribute in commerce, process, use, or dispose of chemical substances or mixtures that the EPA suspects may be hazardous — conduct tests on such materials. 15 U.S.C. § 2603(a). Section 4(e) calls for the establishment of a committee that is expected to make recommendations to the EPA regarding what chemicals or mixtures should be tested pursuant to § 4(a). This committee, known as the Interagency Testing Committee (I.T.C.), is required to publish in the Federal Register and transmit to the EPA a list of chemicals and proposed areas of study.
In October 1977 the I.T.C. published such a list, including ten chemicals and categories of chemicals. 42 Fed.Reg. 55026. According to the I.T.C. list, the specified chemicals presented serious potential for public exposure and there was a substantial possibility that they could be hazardous. The Committee recommended testing in six general areas: carcinogenicity, mutagenicity, teratogenicity, other chronic effects, environmental effects, and epidemiology.
To determine what tests would be necessary, the EPA, pursuant to § 8(d), proposed a rule designed to obtain the submission of already existing health and safety studies. This proposed regulation stipulated that all manufacturers, processors and distributors of any of the named chemicals must submit to the EPA lists of studies initiated by or conducted for them and copies of any such studies in their possession. Section 1(a)(4) of EPA’s proposed rule defined the terms “manufacture or process” to include all manufacture or process of chemicals even if only for research purposes.
Several interested parties commented on § 1(a)(4) of the proposed rule, complaining that submission to the EPA of information gleaned from tests for new uses of chemicals might discourage product research and development inasmuch as competitors would be apt to gain valuable information about a company’s future plans. Notwithstanding these complaints, the changes made in the final rule gave no relief to those troubled by the possible chilling effects of the regulation on product research and development and innovation in the chemical field generally. Instead, the Agency specifically included a “Note” in the final regulation stating that the definition of manufacturing “for commercial purposes” includes “product research and development.” 43 Fed.Reg. 39086. And the two principal changes made to the proposed rule broadened rather than narrowed the scope of the regulation.
Most important for our purposes, the final rule required that the companies subject to the rule submit copies of health and safety studies in their possession even if the studies were of chemicals that that company did not manufacture, process, or distribute. The listing requirement itself, however, remained limited to those substances actually manufactured, processed or distributed by the reporting company. See 40 C.F.R. § 730.5(a), 43 Fed.Reg. 30986. A second change substantially expanded the scope of the type of studies sought beyond the six areas suggested by the I.T.C.
Dow, believing the changes in the proposed rule to be significant, charged that, the EPA had violated the Administrative Procedure Act by enlarging the scope of the regulation without adequate notice and fair opportunity to comment. See 5 U.S.C. § 553 (1976). Dow also challenged the Administrator’s substantive authority under the Act in two respects. First, it contended that the manufacture of small quantities of a chemical solely for purposes of research and development is not manufacture “for commercial purposes” and, therefore, is beyond the reach of § 8(d). Second, Dow urged that the EPA’s effort to obtain copies of studies under § 8(d)(2) should be limited to those studies that a company was required to list under § 8(d)(1). The second paragraph, Dow argued, cannot be read to give the Agency a power broader than that given in the first paragraph.
In apparent response to Dow’s filing of a petition and brief on December 15,1978, the EPA, on January 26, 1979, withdrew the rule. But the EPA still insists that the regulation was within its statutory authority and that it was revoked solely because of procedural irregularities. Given the revocation, however, the EPA maintains that Dow’s appeal is now moot inasmuch as it challenges a rule that is no longer in effect. Before we may consider the merits of Dow’s petition, then, we must first address the question of mootness — a question that implicates the jurisdiction of the Court.
II. MOOTNESS.
At first reading, the case for dismissing the present petition as moot has considerable appeal. Simply put, the government urges that there is at this time no rule extant with which Dow must comply. Moreover, the government asserts there is no suggestion that Dow failed to comply in any material respect with the now-withdrawn rule when that rule was in effect. Thus, it may fairly be questioned whether this litigation retains the characteristics of a live case or controversy necessary for adjudication in a federal court. A careful analysis persuades us, however, that the petition is not moot.
In recent years the Supreme Court has evolved a mootness doctrine that includes both constitutional and policy elements. Under Article III, section 2 of the Constitution, the power of the judiciary is limited to “cases or controversies.” When a dispute ceases to be sufficiently alive or concrete so as to be a genuine “controversy” it is no longer a fit subject for federal court adjudication. The judgment of a federal court must resolve
a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical set of facts.
We have interpreted Supreme Court pronouncements on this subject to require (1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for reasoned adjudication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution.
Here Dow and the EPA are undoubtedly adverse parties. They offer contrary interpretations of a specific section of the statute. The dispute is thus real, not hypothetical; concrete not generalized. To resolve the question, this Court need not anticipate certain contingencies. Had the EPA, for example, withdrawn the rule because it was uncertain as to its statutory authority under the Act, the case might have been rendered non-justiciable — either because it lacks sufficient adversary quality or because the controversy would become to some extent hypothetical' inasmuch as it would depend on the mere possibility of future action by the EPA. The agency, however, withdrew the rule only because Dow’s petition raised questions regarding the EPA’s compliance with the procedural requirements of the Administrative Procedure Act. In the notice revoking the regulation, the EPA clearly stated that it did not intend “to change its interpretation of the scope of its statutory authority” about which “it entertains no doubt.” 44 Fed. Reg. 6099. In fact, the agency is in the process of proposing a new § 8(d) rule that will take precisely the same substantive position adopted in the withdrawn rule. Id. Under these circumstances, we believe that the Article III prerequisites for the exercise of federal court jurisdiction are satisfied.
An' argument may be made, of course, that even if the constitutional prerequisites for federal court jurisdiction exist, the policy aspects of the mootness doctrine should not be lightly dismissed. But in this case policy considerations favor resolution of the petition at this time. First it is the EPA, not Dow, that urges us to treat the appeal as moot as a result of its own action in withdrawing the rule. Courts are understandably reluctant to permit agencies to avoid judicial review, whenever they choose, simply by withdrawing the challenged rule. As Judge Skelly Wright has noted:
Where a court is asked to adjudicate the legality of an agency order, it is not compelled to dismiss the case as moot whenever the order expires or is withdrawn. Consideration of important legal issues “ought not to be, as they might be, defeated, by short term orders, capable of repetition but evading review »
Although we do not believe that this case may be classified as one involving official action “ ‘capable of repetition but evading review,’ ” we are at least to some degree persuaded by the policy concerns that underlie that exception to the mootness doctrine. The EPA has not altered its substantive stance, it has merely withdrawn its regulation for technical reasons with the declaration that it will be resubmitted. If this action by the EPA were alone sufficient to render a live dispute moot, the timing and venue of judicial review could be effectively controlled by the agency. We are reluctant, then, to dismiss a genuine and concrete controversy for what in this case amounts to a technical reason, brought about by the party seeking such a dismissal. As the Supreme Court has .noted:
[Voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. A controversy may remain to be settled in such circumstances, e. g., a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.
A second policy reason also supports retention of jurisdiction over this case. Although the precise regulation under scrutiny has been withdrawn, the previous promulgation of the regulation, combined with EPA’s adherence to the interpretation of the statute included therein, may continue to have a present impact on Dow. Because the EPA has unequivocally taken the public posture that it will seek health and safety studies resulting from research and development work, Dow’s present decisions regarding research and development projects are necessarily colored by the very real possibility of having to provide the EPA with confidential information of considerable value to Dow’s competitors. The resulting “chill” on Dow’s research and development is thus a present harm that merits our attention, provided that the jurisdictional requirements have been met. To delay adjudication here would not leave the parties in the same position they occupied before the EPA took any action — rather it would leave Dow under a non-speculative threat of agency action while delaying any decision on the legality of that action. As in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), where the Supreme Court declared that it was not deprived of jurisdiction because of mootness,
the challenged governmental activity in the present case is not contingent has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.
Finally, it bears emphasis that there appear to be no persuasive policy reasons supporting a conclusion of mootness here. There is no possibility of “passing prematurely on constitutional questions.” Nor are we likely to gain any additional information or insights by awaiting EPA’s re-promulgation of the contested regulation. Furthermore, until this issue is resolved there is a substantial possibility that product research and development as well as the EPA’s investigation of toxic chemicals will suffer: the.former from the chill discussed above, the latter from further litigation regarding the scope of the agency’s power. Because it is in the public interest to encourage both innovation and the control of toxic substances, we believe that it is the better policy to resolve the issue and thereby proffer Congress the opportunity quickly to rectify the situation if we have misread their intent. The only advantage in delaying adjudication here is that the EPA might change its mind and thus eliminate the controversy. But this possibility has been strongly and explicitly negatived by the agency, and must be considered remote at best. To refuse to pass on the questions presented, then, would require both the parties and the Court to undergo considerable additional expense and effort for no valid reason. Moreover, it would leave unresolved a dispute that it is in the interests of both parties as well as the public at large to have resolved.
Accordingly, we conclude that this matter is not moot and proceed to address the merits.
III. THE EPA’S STATUTORY AUTHORITY UNDER § 8(d) OF THE TOXIC SUBSTANCES CONTROL ACT.
Two issues of statutory construction are presented by Dow’s challenge to the EPA’s regulation. First, does § 8(d) permit the Administrator to include in his definition of “manufacture” the production of small amounts of a chemical for purposes of research and development? Given the definition of “manufacture” provided in § 8(f)— “for commercial purposes” — this issue may be reduced to the question whether the production of limited quantities of chemical for research and development purposes may be considered a manufacture for commercial purposes. Second, does § 8(d)(2) permit the Administrator to seek copies of studies in the possession of a company even if that company is not required to list the studies pursuant to § 8(d)(1) and is not itself a manufacturer, processor, or distributor of the chemical that is the subject of the studies?
Each of these questions is a matter of first impression. Not only has this Court not previously confronted them, but neither counsel nor our research has yielded any judicial construction of the section in question. Before attempting an analysis of the statutory language and legislative history of the sections in question, however, we must first consider what deference should be accorded the agency’s interpretation of these sections.
A. The Deference to be Accorded the EPA’s Interpretation of the Act.
It is now a commonplace of administrative law that courts in construing a statute will give “considerable weight” to a “consistent and longstanding interpretation by the agency charged with administration of [that statute].” United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975). This rule of deference has been repeated frequently by the Supreme Court and by this Court, and remains the standard for interpreting federal statutes. ' Like any rule, however, this precept of deference must be tailored to those situations that occasioned its creation. It should not be used, for example, as a shield for permitting agencies to extend their statutory authority beyond that delegated to them by Congress.
Deference is generally accorded administrative agencies because of their experience and expertise. Although it has been said that the nation’s faith in government by experts has recently declined, it is only logical that courts of general jurisdiction should give deference on matters that are more fully understood by specialist agencies. Agencies may be more qualified in certain fields because of their understanding of the actual area that is being regulated. Thus in labor law, the N.L.R.B. may ascertain what in fact chills workers organizational rights better than would a tribunal that is less experienced in labor matters. Alternatively, agencies may be more qualified because of their sensitivity to the practicalities of the administrative process, and because of the need to supervise complex and often confusing statutory programs in a realistic and pragmatic manner. Consequently, the EPA has often been given broad deference in its attempts to produce a workable administrative system from obscure statutory language in highly technical statutes. Were we dealing here with an agency interpretation stemming either from its experience with the subject matter being regulated or with administrative practicalities we would be inclined to accept EPA’s suggestion that its interpretation of § 8(d) is entitled to great or controlling deference.
The statutory problems for resolution in the present case, however, are largely unrelated to the agency’s expertise in regulating possibly toxic substances or the nature of its administrative process. Rather, the problems we address here involve the limits to be placed upon the EPA’s information-gathering authority under the Act. These are issues of statutory construction requiring careful analysis of the language used by Congress in drafting the statute, as well as the legislative history of the Act. A federal court is as qualified, as an agency in assaying such a task, and is more disinterested. The words at issue do not relate directly to the subject matter that EPA is regulating: we are not construing “hazardous,” “mixture,” or “chemical” as those terms are used in the Act. Such words may properly depend on expert interpretation and standards. Instead we are construing an alleged limitation placed on the authority of the agency to obtain certain information. That an agency may adopt an interpretation maximizing its own authority is not surprising, but we do not believe we can fairly accord such an interpretation the same degree of deference that is generally given to the interpretation of those portions of a statute directly related to the expertise of the agency involved. Congress has delegated considerable authority to the EPA under this and other acts. The agency must be given deference in determining how to exercise that authority. But it need not and should not be given deference in determining how much authority has in fact been delegated to it. Were courts required to defer to an agency’s determination of the extent of its authority, the agency could proceed to exercise as much power as “reasonable,” even though a more plausible reading of its mandate suggests the power it seeks to exercise was never delegated by Congress.
Accordingly, pursuant to Dow’s request that we set aside agency action “in excess of statutory jurisdiction, authority, or limitations,” we shall objectively construe § 8(d) of the Toxic Substances Control Act, and sustain the agency’s interpretation of the authority given the Administrator under the Act only if it appears that such interpretation comports with the statutory language and the intent of Congress.
B. Research and Development as a Commercial Purpose.
Under § 8(d) the Administrator is authorized to seek certain information from those who “manufacture, process or distribute in commerce” or who “propose to manufacture, process or distribute in commerce” any chemical substance or mixture. “Manufacture” is defined in § 3 of the Act:
The term “manufacture” means to import into the customs territory of the United States (as defined in general headnote 2 of the Tariff Schedules of the United States), produce, or manufacture.
This definition would appear to do little more than include importing as a type of manufacture. It offers little guidance in the resolution of the problem posed in this appeal.
In two sections of the Act, however — § 5 and § 8 — a specific limitation is put on the term manufacture. For purposes of those sections, manufacture means manufacture “for commercial purposes.” Dow contends that the manufacture of small quantities of a chemical that it does not propose to offer in commerce, but that it will use solely for purposes of product research and development, is not a manufacture “for commercial purposes” and, therefore, the EPA may not seek information about such a limited “manufacture.”
There is a certain plausibility to this reading of the statute, and Dow adds to its appeal by emphasizing the harm that would result from a contrary reading. In enunciating the policy of the United States with regard to possibly toxic substances, Congress specifically stated that:
authority over chemical substances and mixtures should be exercised in such a manner as not to impede unduly or create unnecessary economic barriers to technological innovation . . .
Dow argues with considerable force that the obligation to report to the EPA on tests done at the preliminary stages of product development will effectively eliminate the competitive advantage that is a prime spur to innovation. If competing concerns are able to learn of the type of research being performed by Dow — or any other similar company — those competitors would be able to ascertain what the reporting company’s future course of marketing and product promotion will be. Companies such as Dow, accordingly, are likely to eschew any research regarding those chemicals that the EPA is interested in learning about. The result of such a policy, as Dow sees it, is to discourage research on the very materials that EPA fears may be hazardous to our citizens.
The EPA counters this argument by pointing to § 14 of the Act, 15 U.S.C. § 2613, which provides for some measure of protection for confidential information. Just because Dow must share its secrets with the EPA, the agency contends, it does not have to share them with competitors. Whether or not one could fairly expect Dow to be reassured by this position, it, as the EPÁ freely admits, is largely beside the point. This case concerns Dow’s duty to submit information to the EPA, not the EPA’s duty, or ability, to keep that information confidential — as important as this may be.
It is the language of the statute itself, in our view, that defeats Dow’s interpretation of the Act. For Dow’s construction to be correct, the use of “for commercial purposes” in limiting §§ 5 and 8 must have excluded manufacture for purposes of research and development. But this it clearly did not do. In both section, § 5 and § 8, specific language is used to exempt research and development from certain of the requirements set out in those sections. Thus § 8(a)(1) reads:
(a) Reports — (1) The Administrator shall promulgate rules under which—
(A) each person (other than a small manufacturer or processor) who manufactures or processes or proposes to manufacture or process a chemical substance (other than a chemical substance described in subparagraph (B)(ii)) shall maintain such records, and shall submit to the Administrator such reports, as the Administrator may reasonably require, and
(B) each person (other than a small manufacturer or processor) who manufactures or processes or proposes to manufacture or process—
(i) a mixture, or
(ii) a chemical substance in small quantities (as defined by the Administrator by rule) solely for purposes of scientific experimentation or analysis or chemical research on, or analysis of, such substance, or another substance, including any such research or analysis for the development of a product, shall maintain records and submit to the Administrator reports but only to the extent the Administrator determines the maintenance of records or submissions of reports, or both, is necessary for the effective enforcement of this chapter.
Similarly § 8(b)(1) includes an exception from the Administrator’s duty to compile an inventory:
(b) Inventory. — (1) The Administrator shall compile, keep current, and publish a list of each chemical substance which is manufactured or processed in the United States. . . . The Administrator shall not include in such list any chemical substance which is manufactured or processed only in small quantities (as defined by the Administrator by rule) solely for purposes of scientific experimentation or analysis or chemical research on, or analysis of such substance or another substance, including such research or analysis for the development of a product.
A review of § 5, the other section using the “commercial purposes” language, also reveals a specific exception for research and development. Section 5(h) reads:
(3) The requirements of subsections (a) and (b) of this section do not apply with respect to the manufacturing or processing of any chemical substance which is manufactured or processed, or proposed to be manufactured or processed, only in small quantities (as defined by the Administrator by rule) solely for purposes of—
(A) scientific experimentation or analysis, or
(B) chemical research on, or analysis of such substance or another substance, including such research or analysis for the development of a product, if all persons engaged in such experimentation, research, or analysis for a manufacturer or processor are notified (in such form and manner as the Administrator may prescribe) of the risk to health which the manufacturer, processor, or the Administrator has reason to believe may be assodated with such chemical substance.
Were we to adopt Dow’s construction of “commercial purposes” the above provisions of the Act would seem to be rendered almost meaningless. If the manufacture or process of a chemical in small quantities for purposes of research and development does not constitute a commercial purpose, there would be no need to provide for any special treatment for such chemicals in either of the two sections subject to the “commercial purpose” limitation. They would be entirely exempt from both sections. An objective reading of these sections reveals that Congress thought that the special exemptions for reporting, inventory, and notice were necessary, and that they did not believe that research and development had been generally excluded by the addition of a “commercial purposes” limitation.
Dow attempts to meet this problem with two arguments. First it contends that the exceptions found in §§ 8(a)(1), 8(b)(1), and 5(h)(3) are not necessarily deprived of meaning under Dow’s interpretation. Second, it argues that the EPA’s interpretation may also be criticized on the ground that it conflicts with certain other language in the statute. Neither of these contentions is persuasive.
The alternative explanation offered for the three specific exceptions provided for research and development is that although such exceptions were not strictly necessary for “in-house” research and development, they were needed to protect research chemicals that are actually sold commercially. According to Dow, “in-house” research and development is wholly exempt from both §§ 5 and 8 because of the “commercial purposes” limitation, whereas manufacturers of research and development chemicals produced for sale are offered more limited protection by §§ 8(a)(1), 8(b)(1), and 5(h)(3).
We find this reading of the statute an unlikely one, both in terms of the language of the statute itself and the legislative history. Nowhere in the congressional reports and debates is there any indication that the drafters of the legislation perceived the distinction drawn by Dow and intended to craft an exception specifically for those in the business of manufacturing research chemicals for sale. In fact, it appears that Congress was under the impression that the exemptions in §§ 5 and 8 were necessary to protect both purchased and “in-house” research chemicals. Thus in explaining the exemption provided for research and development chemicals in § 5 — which requires that a prospective manufacturer give notice to the EPA ninety days before manufacturing a new chemical substance — Congressman McCollister of Nebraska made clear that both types of research were to be protected:.
Section 5 is probably one of the most onerous provisions of the legislation with its requirement for premarket notification of all new chemical substances. However, this section does contain exemptions. For example, chemicals which are manufactured in small quantities for sale to laboratories for research purposes would not be subject to the premarket notification provisions of the bill. Further, research and analysis being performed during the developmental stages of chemicals which may ultimately be produced commercially would also be exempt from the premarket notification provisions of the bill. This exception for research and analysis related to product development would exist regardless of whether the manufacturer were evaluating the product within its own plant or had made the product available to a potential customer with or without the payment of a fee. Section 5 must not be interpreted in such a way as to stifle product development and innovation, and we expect the EPA will implement Section 5 and the other provisions of the bill so that this result will not occur.
This view was echoed by other Congressmen as well, including the authors of the bill. Indeed, it would appear that there was more certainty that the exemption was designed to protect “in-house” research than that it covered the activity for which Dow claims it was intended. Congressman Murphy of New York made a point of emphasizing its dual purpose:
Mr. Chairman, I think it is important to point out to my colleagues that research chemicals are exempted from the requirements of section 5. It has come to my attention that some people have interpreted this exemption as applying only to research chemicals which are manufactured and used in-house by a company. While the exemption does not include such research chemicals, it is not limited to them. If a chemical is manufactured by one person in small quantities for use as a research chemical and sold to another person to use for research purposes, then the exemption covers such a chemical. In other words, one company can make chemicals to be used for research by another company or by another person and the exemption covers that chemical.
I would like to ask the authors of the legislation, the gentleman from Texas (Mr. Eckhardt) and the gentleman from North Carolina (Mr. Broyhill), if that is their understanding of the exemption?
Mr. Eckhardt. Mr. Chairman, that is my understanding of the exemption.
Mr. Broyhill. Mr. Chairman, I agree with the gentleman from New York.
These statements of the congressional understanding indicate that the drafters of the Act did not believe that the exemption they had fashioned in § 5(h)(3) was necessary only to protect research chemicals manufactured for sale, although it served to protect that manufacture as fully as “in-house” manufacture. Rather, they believed that the exception would benefit both types of research chemicals, and drew no apparent distinction between them. The same reasoning would logically apply to the exemptions appearing in § 8 and the use of the term “commercial purposes” in that section. The statute accordingly does not appear to bear the distinction urged by Dow to explain the inclusion of the exceptions in §§ 5(h)(3), 8(a), and 8(b) when no such exemption is found in § 8(d).
Dow’s second reason for rejecting the EPA’s interpretation is that that construction, too, appears to render other language in the statute close to meaningless. Although it would not be unheard of to discover that a statute is internally inconsistent, we do not agree that the language referred to by Dow is deprived of meaning by the EPA’s construction of the legislation.
There are two principal portions of the statutory language of § 8(d) that Dow relies upon as being incongruent with the EPA’s interpretation. The first is “for commercial purposes” — the very language upon which Dow has based its interpretation of the statute. If “commercial purposes” does not serve to exclude research projects, Dow suggests, it is difficult to see what it does do. The second is the inclusion of “proposes to manufacture, process or distribute” in the statement of those from whom the Administrator may require lists of health and safety studies. If a company’s initial research on a not-yet-developed product is a “commercial purpose,” Dow asks, why is the “proposes to” language necessary inasmuch as the EPA can reach even the pre-proposal stage of product development?
We agree that Dow’s explanation of these terms is internally consistent, but we do not believe that the EPA’s explanation is any less so. The EPA interprets any activity engaged in for profit as commercial activity. Inasmuch as Dow engages in product development in the hope of making profit and not out of pure scientific interest, its purpose may be fairly described as “commercial.” In this sense the “for commercial purposes” language distinguishes any profit-making enterprise from a non-profit institution, such as a university or foundation.
Moreover, the “for commercial purposes” language does provide commercial companies with some protection — albeit less than Dow would like. The House Committee explained the meaning of this clause in its report referring to § 5:
By use of the term “for commercial purposes” the Committee does not intend to restrict coverage to substances manufactured or processed “for sale.” Any commercial purpose, such as use as a chemical intermediate in a manufacturing process, is sufficient to bring the manufacture or processing of a substance within the ambit of section 5. The Committee realizes that there are certain minor reactions occurring incidental to the mixing process or upon storage of a mixture, such as the cross-linking of polymers. Such a minor reaction may result in what would technically be considered a “new” chemical substance. However, since the “new” substance is not manufactured for commercial purposes per se it would not be subject to the notification provisions of this section.
Although this explanation does not specifically contradict Dow’s construction, neither does it gainsay the EPA’s interpretation. The language is not deprived of meaning under either view; it merely is given a narrower scope under the EPA’s reading. As we have previously stated, this interpretation, although narrower, is, in our view, more in keeping with other subsections of § 8 and the statute as a whole. .
Nor do we find the EPA’s interpretation to be at odds with the inclusion of “proposes to” in § 8(d). One who does not “manufacture” any chemicals could “propose to” do so, or could “propose to” distribute chemicals in commerce even if it were not the manufacturer. A company proposing to engage in the production industrial use, or distribution of chemicals is still subject to the requirements of § 8(d) even if it has not yet begun actual manufacture, use or distribution. The inclusion of such companies— which are not as yet manufacturers, processors, or distributors — is not inconsistent with an intention to secure research studies from those who are manufacturers, processors, or distributors.
Because we find EPA’s reading of its authority under § 8(d) to be in accord with the statute as a whole, and because we believe Dow’s interpretation does not adequately explain the specific exemptions provided for research and development elsewhere in the Act, we believe that the EPA’s inclusion of manufacture for research purposes in its final rule promulgated to effect the purposes of § 8(d) was within its statutory authority under that section.
C. The EPA’s Authority Under § 8(d)(2) to Seek Copies of Health and Safety Studies From Persons Not Subject to the Listing Requirement of § 8(d)(1).
Dow’s second challenge to the substantive authority of the Administrator also presents a difficult question. Section 8(d)(1) requires manufacturers, processors and distributors of possibly hazardous chemicals to submit lists of existing health and safety studies known to them. Section 8(d)(2) then requires the submission of copies of any studies sought by the Administrator. The question presented is whether § 8(d)(2) authorizes the Administrator to seek copies of studies not appearing on the submitted lists. Specifically, the EPA contends that whereas § 8(d)(1) applies only to studies regarding those I.T.C. specified chemicals that are actually manufactured, processed, or distributed by the reporting company, § 8(d)(2) permits the Administrator to obtain copies of studies in the possession of a reporting company regarding all the I.T.C. recommended substances, even if the reporting company does not manufacture, process, or distribute the chemical that is the subject of the study. Dow, on the other hand, urges that a reporting compahy may be required to submit only copies of those studies that it is required to list pursuant to § 8(d)(1).
Dow’s interpretation of § 8(d)(2) is certainly an understandable one. It is not illogical to reason that the requirement of submitting copies of studies is narrower than that of submitting lists. Indeed, the legislative history contains several statements by legislators assuming this to be the normal procedure. Thus, the Senate Report states:
[Manufacturers must maintain with the Administrator lists of health and safety studies conducted, whether or not they have been conducted as a result of this legislation. The Administrator is authorized to require the submission of any study on the list.
Similarly, the House Committee Report does not appear to have contemplated that companies would be required to submit copies of studies regarding chemicals that they did not manufacture, process or distribute:
Briefly, the bill will. . . . [authorize the Administrator to require manufacturers and processors to submit reports and maintain records respecting their commercially produced chemical substances and mixtures, to maintain records respecting adverse health or environmental effects of such substances and mixtures, and to provide available health and safety data on them.
The legislative history, therefore, may be fairly said to give some support to Dow’s two-step reading of the statute.
But the legislative history may also be read to support the EPA’s interpretation of § 8(d)(2). Some of the legislative language indicating that the submission of copies of studies was to be confined to listed studies reflects an earlier Senate draft of the Toxic Substances Bill which explicitly stated: “The Administrator, on the basis of the lists submitted, may request submission of any study appearing on such list.” This is not the language used in the final version of § 8(d), however. A possible reason is suggested by the Conference Committee Report, which stated, with respect to § 8(d), that “the conferees emphasize the importance of gaining information that errs on the side of too much rather than too little.” Thus, it cannot be said that the legislative history is all, or even predominantly, on Dow’s side.
Where the legislative history is confused and the statutory language is clear, the latter must certainly prevail. Indeed, the language actually used in a statute is the most determinative guide to the meaning of any piece of legislation. Here the language of the statute itself appears to comport more closely with the EPA’s approach. Section 8(d) refers to “any person who manufactures, processes, or distributes in commerce” or who “proposes to” do so. But immediately following this language there is a parenthetical clause, which reads:
“or with respect to paragraph (2), any person who has possession of a study.”
This parenthetical expression can be viewed only as broadening, at least to some degree, the coverage of § 8(d)(2) — the paragraph requiring the submission of copies. Although § 8(d)(1) is limited to manufacturers, processors or distributors,-» § 8(d)(2) includes “any person who has possession of a study.” This latter group may be required to submit to the Administrator
“copies of any study contained on a list submitted pursuant to paragraph (1) or otherwise known by such person.”
We believe this language plainly contradicts Dow’s theory that the Administrator may require only the submission of studies appearing on lists prepared pursuant to § 8(d)(1), even though that theory finds support in certain portions of the legislative history. It is possible that some members of Congress envisioned the two-step process described by Dow, but the language used in the statute unquestionably points the other way in two respects. First, it includes persons other than manufacturers, processors, or distributors — i. e. those who have possession of studies. The parenthetical expression can hardly be read any other way. Second, it includes studies other than those listed pursuant to § 8(d)(1). That is the only possible reading of the addition of “or otherwise known to such person” in § 8(d)(2). Given this statutory language, we are inclined to believe that Congress did intend that the EPA possess a wider authority in securing copies of studies than in securing lists. As in contract law, where “there is no surer way to find out what parties meant, than to see what they have done,” so in construing statutes the intent of Congress is best determined from the words used in the legislation itself.
Dow recognizes the apparent inclusiveness of the statutory language and attempts to meet it by offering a more narrow interpretation. First, Dow explains the apparently broad parenthetical clause by suggesting that it was added for the limited purpose of permitting the EPA to secure copies of listed studies in the possession of a third party. Otherwise manufacturers could insulate studies performed for them by leaving such studies in the hands of another company or individual. And, according to Dow, the “otherwise known by such person” language, appearing in § 8(d)(2) “serves the function of insuring that copies are submitted even if a study was inadvertently left off the list, or was initiated after the list was submitted .
In this manner, the language ‘otherwise known to’ serves a valuable ‘mop-up’ function, guaranteeing that EPA receives all listable studies, whether or not included on the previously submitted lists.”
Again this interpretation is plausible. But it concedes the point that the EPA, in seeking copies of studies, may reach parties other than manufacturers, processors, and distributors. And it admits that the EPA may seek copies of studies not appearing on any submitted list. Once these points are conceded, the legislative history referring to submitting copies of any study on a list is no longer helpful to Dow because it appears to conflict as much with Dow’s narrower reading as it does with the EPA’s broader construction.
Deprived of the support provided in the legislative history noted above, Dow’s interpretation seems no more likely than the EPA’s construction. Indeed, we believe it to be less likely. The “otherwise known” language unquestionably contemplates the existence of studies in the possession of a company, which studies that company is not under an obligation to list. Such studies would necessarily concern chemicals that the company does not manufacture, process, or distribute, inasmuch as they must list all those chemicals that they do produce. When the section is read as a whole, and the parenthetical clause combined with the “otherwise known” language of paragraph two, this reading seems more likely than Dow’s attempt to confine § 8(d)(2) to a “mop-up” role of including “listable” studies that are, as yet, unlisted.
Consequently, on this point, too, we believe that the EPA’s final rule did not go beyond the authority delegated to it under § 8(d) of the Toxic Substances Control Act.
IV. CONCLUSION.
The result we reach today may understandably cause concern to those troubled about the relative decline of technological innovation in the United States. If companies are required to submit to a federal administrative agency the results of tests they perform in the process of developing new products their chances of realizing a substantial competitive advantage may be measurably reduced. With the opportunity for “gaine” diminished in this fashion, corporate research may concentrate on substances that are not presently subject to the agency’s scrutiny. The result may be a net reduction of general research on the very substances — hazardous chemicals — on which research is greatly needed. Were this to come about, it would presumably conflict with one of Congress’ purposes in passing the Act. Alternatively, companies may simply reduce their research and development spending altogether, particularly since the Toxic Substances Control Act is not the only current disincentive to innovation.
Of course, in the present case good arguments may be made for the Act as drafted. It is fair to doubt whether the primary commitment of large corporations is to the health of our citizenry — and reasonable for the government to seek to learn about and more carefully control toxic substances. The drafting of legislation often entails difficult policy choices, and the statute at issue here is no exception. But the issue for this Court cannot be whether we would have drafted § 8(d) so as to provide greater protection for product research and development. Nor is the question whether the regulation actually promulgated is a desirable one. We recognize the potentially unfortunate consequences of the EPA’s regulation and of our reading of the Act. Our role, however, is confined to construing the statute so as to give effect to the legislation as written and to the intent of Congress in enacting such legislation. In so doing we have determined that Congress delegated to the EPA the authority to promulgate the regulation that is under challenge here. Perhaps the public may have reason to regret this result, but the possibility that the Act as drafted may inhibit technological innovation may not be relied upon as a justification for ignoring the apparent congressional decision in the drafting of the statute. Rather, any change in this regard is for the Congress to consider.
The petition for review will be denied; each side to pay its own costs.
. Coke, The Third Part of the Institutes of the Laws of England, 195 (E. & R. Brooke eds. 1797).
. See, e. g., the power given Congress in Article I, Section viii, clause 8 of the Constitution:
“To promote the Progress of Science and useful Acts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
. Not all chemicals were recommended for all areas of testing.
. The purpose of the proposed regulation was to help EPA to “ascertain whether, and if so what, testing rules are necessary.” 43 Fed. Reg. 4074.
. § 730.1(a) of the proposed rule reads:
(a) “Manufacture or process” means to manufacture or process for commercial purposes, which includes (1) for distribution in commerce, including for test marketing purposes; (2) for use as a catalyst or intermediate; (3) for the exclusive use by the manufacturer or processor, or (4) for product research or development.
43 Fed.Reg. 4075.
. One of the comments illustrates the problem: For example, the fact that a consumer goods firm was testing a compound formerly used only in limited factory applications for its skin immersion effects might indicate to the competing firms in its industry that a new cleaning application was being considered for that compound.
A-43.
. The first mootness holding explicitly relying on Article III of the Constitution was Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), although there were references to Article III limitations in earlier cases. See generally Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373 (1974).
. See Franks v. Bowman Transportation Co., 424 U.S. 747, 756 n.8, 96 S.Ct. 1251, n.8, 47 L.Ed.2d 444 (1976).
. Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975), quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937).
. See Geraghty v. United States Parole Comm’n, 579 F.2d 238, 246 (3d Cir. 1978) cert. granted 440 U.S. 945, 99 S.Ct. 1420, 59 L.Ed.2d 632 (1979).
. Nader v. Volpe, 154 U.S.App.D.C. 332, 333, 475 F.2d 916, 917 (D.C. Cir. 1973) quoting Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).
. Dow urges that the present case does, in fact, constitute an example of official action capable of repetition yet evading review. We agree that EPA’s regulation is capable of repetition — indeed it is almost certain of repetition given the EPA’s continued adherence to the statutory construction it advanced in the regulation. The use of the capable of repetition but evading review exception must turn therefore on whether the Administrator’s interpretation will “evade review.”
We are disinclined to read this traditional exception to the mootness doctrine as broadly as Dow does. Most cases utilizing this approach have involved official action that by its very nature could not, or probably would not be able to be adjudicated while fully “live.” Thus Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) concerned a woman’s claim of a right to abort her unborn child. Given the nine month gestation period, her pregnancy was certain to terminate before the case was adjudicated. Accord, First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed,2d 707 (1978) (election campaign would terminate before bar to corporate participation therein could be reviewed); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (one year residency requirement for obtaining a divorce found to be of insufficient duration to permit complete review while still applicable to any particular plaintiff.).
Here, in contrast, the new rule that EPA proposes to advance would be subject to review. We thus cannot say with certainty that EPA’s actions, if repeated, would “evade review.” At worst they would appear to do no more than delay review. We, therefore, rest our rejection of mootness here not on the repetitious evasion of review exception to the mootness doctrine but on the conclusion that that doctrine is not properly applicable to this, a live controversy, virtually certain of repetition, and with some present effect on the appellant.
. See Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390 (5th Cir. 1974) reversed on other grounds 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). There, Judge Wisdom refused to allow the EPA’s disapproval of the particular regulations under challenge to moot plaintiffs’ argument, inasmuch as the EPA did not disapprove the underlying theory behind those regulations. A live dispute still existed, he reasoned, regarding the underlying strategy despite the EPA’s removal of specific regulations. The subsequent Supreme Court decision does not appear to have addressed this question.
. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (citations omitted).
. 416 U.S. at 122, 94 S.Ct. 1694, 1698.
. Franks v. Bowman Transportation Co., 424 U.S. 747, 756 n. 8, 96 S.Ct. 1251 n. 8, 47 L.Ed.2d 444 (1976), quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).
. One of the reasons for such deference, suggested in Saxbe v. Bustos, 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974), is the opportunity— over time — for Congress to correct a serious misinterpretation. See id. at 74, 95 S.Ct. 272.
. See e. g., International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 566, & n. 20, 99 S.Ct. 790, 800 & n. 20, 58 L.Ed.2d 808, 820 & n. 20 (1979); DuPont v. Train, 430 U.S. 112, 134-35, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). The reasons for this deference and, more im- ■ portantly, limits to it were stated by the Supreme Court in Daniel: “This deference is a product both of an awareness of the practical expertise which an agency normally develops, and of a willingness to accord some measure of flexibility to such an agency as it encounters new and unforseen problems over time. But this deference is constrained by our obligation to honor the clear meaning of a stature, as revealed by its language, purpose and history.” 439 U.S. at 566 n. 20, 99 S.Ct. at 800 n. 20, 58 L.Ed.2d at 808 n. 20.
. E. g., American Iron & Steel Institute v. EPA, 526 F.2d 1027, 1041 (3d Cir. 1975); Budd Co. v. OSHA, 513 F.2d 201, 203-05 (3d Cir. 1975).
. See J. Freedman, Crisis and Legitimacy; The Administrative Process and American Government, 44-57 (1978).
. See, e. g., Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946) (agency determination of what constitutes labor dispute “in active progress”). But see Getman & Goldberg, The Myth of Labor Board Expertise, 39 U.Chi.L.Rev. 681 (1972) (criticizing courts’ assumption that NLRB has special expertise to determine impact of employer conduct on exercise of employee rights).
. See DuPont v. Train, 430 U.S. 112, 134-35 & n. 25, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961).
. “The question . is . solely one of statutory interpretation. The resolution of that issue does not require any expertise on the part of the [agency]; the proper interpretation is certainly not a matter of discretion.” McKart v. United States, 395 U.S. 185, 198-99, 89 S.Ct. 1657, 1665, 23 L.Ed.2d 194 (1969). See United States ex rel. Sanders v. Arnold, 535 F.2d 848, 853-55 (3d Cir. 1976) (Adams, J., dissenting).
. See the scope of review set out in the Administrative Procedure Act, 5 U.S.C. § 706(2)(C).
. 15 U.S.C. § 2602(7).
. 15 U.S.C. §§ 2604(i) and 2607(f).
. 15 U.S.C. § 2601(b)(3).
. Dow questions the protection offered by § 14, noting that § 14(b)(1)(A) authorizes public disclosure of all health and safety studies once a testing rule is issued, regardless of whether a particular chemical has been offered for commercial distribution. Even were this problem avoided, Dow questions whether a large government agency is equipped to guarantee absolute confidentiality in circumstances such as these.
. 15 U.S.C. § 2607(a)(1) (emphasis supplied).
. 15 U.S.C. § 2607(b)(1) (emphasis supplied).
. 15 U.S.C. § 2604(h)(3).
. 122 Cong.Rec. 48805 (Aug. 23, 1976), reprinted in Legislative History of the Toxic Substances Control Act at 520-21 (emphasis added).
. Id. 574-75 (emphasis added).
. H.Rep.No.94-1341, 94th Cong., 2d Sess. at 30-31, reprinted in Legislative History, supra, • at 437-38.
Nor does the legislative history reveal any Congressional intent to exclude research and development in its entirety:
Mr. Broyhill. I want to compliment that gentleman for giving a very adequate explanation of the many provisions in a bill that do exempt research chemicals from provisions of this bill. But would the gentleman not agree with me that striking the reporting requirements altogether would not be wise, because there is one thing the EPA should have, and that is adequate knowledge of the new chemicals that are being developed?
Mr. Murphy of New York. That is one of the thrusts of this bill.
Mr. Broyhill. That is not certainly an onerous burden to know the formulas of new chemicals that are being developed, is it?
Mr. Murphy of New York. It is not.
Cong.Rec., Aug. 23, 1976, reprinted in Legislative History, supra, at 557.
. The use of this term would appear to be tied to the § 5 requirement of a formal proposal of new chemical manufacture or sale. See 15 U.S.C. § 2604.
. As is noted, supra, a company must list studies (1) conducted by or for it; (2) known to it; or (3) reasonably ascertainable by it. See 15 U.S.C. § 2607(d)(1).
. EPA Internal Memorandum Submitting Final Regulation to the Administration. A-228. See § 730.5(a)(2) of the final rule, 43 Fed.Reg. 30986.
. S.Rep.No.94-698, 94th Cong., 2d Sess., at 2, reprinted in Legislative History, supra, at 158 (emphasis added), U.S.Code Cong. & Admin. News 1976, pp. 4491, 4492.
. H.R.Rep.No.94-1341, 94th Cong., 2d Sess., at 4, reprinted in Legislative History, supra, at 410 (emphasis added).
. Hearings Before the Subcommittee on the Environment of the Committee on Commerce, S. 776, 94th Cong., 1st Sess., 94-24 (1975) at 27.
. Conference Report, H.R.Rep.No.94-1679, 94th Cong., 2d Sess. at 81, U.S.Code Cong. & Admin.News 1976, p. 4566, reprinted in Legislative History, supra at 694.
. In Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956), Justice Frankfurter puckishly declared that in such a situation it is prudent to apply “the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.”
. 15 U.S.C. § 2607(d) (emphasis added).
. 15 U.S.C. § 2607(d) (emphasis added).
. Insurance Co. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877).
. Brief for the Petitioner at 37.
. The EPA may hope to remedy such decline through the use of testing requirements pursuant to § 4 of the Act. Whether government ordered research is an adequate substitute for individual initiative is at least open to debate.
. Spending for research and development as a percentage of the gross national product is lower now than it was fifteen years ago. Indeed, private spending for research and development as a percentage of gross national product has now fallen behind that of both Germany and Japan. And it has been suggested that governmental actions are part of the problem. See I. Shapiro, Technology’s Decline: America’s Self-Made Paradox (Speech Before the Economic Club of Detroit, Jan. 22, 1979) reprinted in 45 Vital Speeches of the Day 360 (1979); J. Harley, The Day Innovation Died: Defensive R. & D., (Speech Before the Houston Club, Sept. 26, 1978) reprinted in 45 Vital Speeches of the Day 55 (1978).
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