1994-05-19_GENERAL DOCUMENTS - M1977378

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j, tc $ i 1 18 ERC 1114 .rational Wildlife Federation ✓. Gorsuch r ... of an agency's reasoning" bears on the evidence of thoroughness to meet the 'I proper degree of deference, Federal Elec- standard for deference. tion Commission v. Democratic Senatorial Cam- The usual factors, then (regulatory paign Committee, 454 U.S. 27, 37 (1981), agency, consistency, contemporaneous but we can find nothing in the record to construction, expertise, congressional ac- ; show that EPA's decisionmaking process quiescence, thoroughness), generally has been inadequate in this instance. At support giving great deference to EPA's the time of its initial decision to treat interpretation. The district court, how- dams as nonpoint sources of pollution, ever, justified reduced deference by its EPA was well aware of the water quality perception that the issue presented in i problems caused by dams.38 To be sure, this particular case did not involve scien- 5 � <! the 1973 letter explaining EPA's decision tific expertise and that EPA was relying in contains little legal or policy analvsis.39 its interpretation of the Act not on policy But EPA was under no legal obligation at considerations but on narrow dissection . : that point to fully explain its reasoning; of the language of the Act, a task at which thus, we are not at liberty to conclude courts are equally skilled. i that its position, although incompletely r 1 explained, was not in fact carefully con- Of course, in any particular case, we sidered. More important, EPA in I974 must look closely at how the general and 19 7 8 considered at length whether to reasons for deference relate to the specif- its for dams and is problem of statutory construction at require NPDES perm position both hand. Wilderness Societv v. .Vorton, 479 F.2d adhered to its original times.40 This reconsideration is sufficient 842, 866 [4 ERC 16771 (D.C. Cir.) (en i bane), cert. denied, 411 U.S. 917 [5 ERC 38 See Letter from Alan Kirk,Acting Assistant 1208] (1973). Thus, EPA's failure to base : 1 Administrator for Enforcement and General its position on scientific or policy consid- f Counsel, EPA, to S. Leary Jones, Director, erations, if true, would be cause for 61"; Division of Water Quality Control, Tennessee reduced deference. As we recently noted +;'; Department of Public Health at 1 (June 23, in denying deference to the Federal Ener- "1' 1973), J.A. at 114, 114 ("Typically, water quality problems associated with dams are ' Regulatory Commission: related to depletion of dissolved oxygen, re- The underlying logic for deference ... duction of streamflow and consequent in- largely depends on ... [whether] the creases in pollutant concentrations below the agency's] ...'interpretation may fairly ]!;' dam, and similar problems .... "); EP,1 1973 be characterized as being infused with i if Dam Report, supra note 3. the agency's expertise. In this case, the 39 The letter continues: Commission concedes that its reading of [W]acer quality problems associated with the [Natural Gas Policy Act] is not dams ... involve water quality effects not j resulting from the discharge of pollutants informed by notions of ... policy. In- attributable to the dam itself. Accordingly, stead, the Commission simply asserts we do not believe that the discharge from a that ... its hands are tied, no matter dam constitutes a "discharge of pollutants" within the meaning of the Federal Water Judge for the District of Columbia, concerning Pollution Control Act. National Wildlife Federation v. Costle, No. 79- Letter from Alan Kirk,supra note 38, at 1.This 091 a, J.A. at 123. After considering various f analysis, while not wholly conclusory, is hardly options, see EPA Office of General Counsel, com rehensive. 4c� .Memorandum on Issuing .VPDES Permits to It 40In 1974, Mr. Kirk solicited comment from Dams (1978), Record item 39, exhibit P. EPA EPA's regional offices on a draft interpretation decided that its current position was sound Chat would have reversed EPA's view that dams and did not solicit public comment_ : generally do not discharge pollutants. Letter The trial judge declined to admit the agency from Alan Kirk, Assistant Administrator for documents cited above into evidence after ; Enforcement and General Counsel, EPA, to EPA objected to their admission. See Trial i Regional Counsels (Aug. 1, 1974), Record Transcript, Nov. 4, 1980, at 12-20. However, ; item 39, exhibit D. In 1978, in response to the they are pan of the record because they were l Wildlife Federation's petition for rulemaking, incorporated in a Wildlife Federation request '! ! EPA again reassessed its position, at one point for admission, Record item 39, in response to announcing to the district court its intent to which EPA admitted that the documents were I i seek public comment on the matter. See Letter true and accurate copies of EPA documents, from Fred Disheroon, Attorney for EPA, to Record item 48. Therefore, they can properly �;. Hon. Aubrey Robinson, United States District be noticed on appeal.