Michigan Department of Environmental Quality v. United States Environmental Protection Agency

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2003 FED App. 0026P (6th Cir.) Argued: October 31, 2002 OPINION In this environmental case arising under section 402 of the Federal Water Pollution Control Act, 33 U.S.C. § 1342, the narrow question before us is one of procedural default. The Environmental Appeals Board held that the Michigan Department of Environmental Quality, a state agency, did not identify with sufficient clarity and specificity its objections to the actions of the Administrator of the Environmental Protection Agency in issuing, under section 402 of the Federal Water Pollution Control Act, 33 U.S.C. § 1342, a National Pollutant Discharge Elimination System permit to a wastewater treatment facility located on the Saginaw Chippewa Isabella Reservation. The underlying question on the merits is whether the State of Michigan or the EPA is the appropriate authority to issue discharge permits on the Isabella Reservation.2 Apart from the question of procedural default, the petitioners assert that there exists an independent jurisdictional basis for this Court to reach the merits by reviewing the EPA's interlocutory actions relating to Michigan's proposed permit for the same facility. The Environmental Appeals Board has the authority to enforce rules of procedural regularity in cases before it. One such rule is found at 40 C.F.R. § 124.19 of the EPA's regulations and governs the content of petitions to obtain Board review of decisions of the Administrator. That rule provides that the petition must ""show"" that the challenged actions of the Regional Director were based on a ""finding of fact or conclusion of law which is clearly erroneous"" or the ""exercise of discretion or important policy consideration"" that should, in the Board's discretion, be reviewed.3 In the present case, the Board dismissed Michigan's petition for failure to comply with this rule. We have jurisdiction to review the EPA's final permitting decision under 33 U.S.C. § 1369(b)(1)(F), and will overturn the Board's ruling only if it was ""arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law"" under § 706(2)(A) of the APA. See Spitzer v. Great Lakes Ltd. v. EPA, 173 F.3d 412, 414 (6th Cir. 1999).