                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 93-2340

            PUERTO RICO AQUEDUCT AND SEWER AUTHORITY,

                           Petitioner,

                                v.

          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

                           Respondent.

                                             

                PETITION FOR REVIEW OF AN ORDER OF
                 THE ENVIRONMENTAL APPEALS BOARD

                                             

                              Before

                  Selya and Cyr, Circuit Judges,
                                               

               and Pettine,* Senior District Judge.
                                                  

                                             

     Neil T. Proto,  with whom  John B. Britton,  Lisa K.  Hsiao,
                                                                
Verner, Liipfert,  Bernhard, McPherson  &amp; Hand, Chartered,  Edgar
                                                                 
Rodriguez-Mendez,  and Jorge Marrero-Narvaez  were on  brief, for
                                            
petitioner.
     Michael  J. Zevenbergen,  Attorney,  U.S. Dep't  of  Justice
                            
Environmental Defense Section, with whom Lois J. Schiffer, Acting
                                                         
Assistant Attorney General, Stephen J. Sweeney (Office of General
                                              
Counsel, EPA),  and Janice  Whitney (Office of  Regional Counsel,
                                   
EPA Region II), were on brief, for respondent.

                                             

                         August 31, 1994

                                             

          
*Of the District of Rhode Island, sitting by designation.

          SELYA, Circuit Judge.   The United States Environmental
          SELYA, Circuit Judge.
                              

Protection Agency (EPA), respondent before us, refused to hold an

evidentiary hearing regarding  its determination that a  facility

in  Mayaguez owned by petitioner,  Puerto Rico Aqueduct and Sewer

Authority  (PRASA),  must  fully   meet  the  Clean  Water  Act's

secondary  treatment requirements  for  publicly owned  treatment

works (POTWs).  The  gist of EPA's decision  was straightforward:

having  previously  established secondary  treatment requirements

because PRASA's POTW emitted  pollutants into stressed waters, it

determined  that   PRASA  had  failed  to   proffer  any  legally

cognizable basis for modifying the requirements.

          Petitioner   now   seeks   judicial  review   of   this

determination.   Its flagship objection  demands that we place in

bold  relief the  concept  of  administrative  summary  judgment.

Petitioner's  less  touted   objections  implicate  the  agency's

"stressed  waters"  standards.1    Descrying  no  flaw  in  EPA's

application of either its procedural  or substantive regulations,

we affirm.

I.  STATUTORY AND REGULATORY FRAMEWORK

          Under the Clean Water Act,  no pollutant may be emitted

into this  nation's waters except  in compliance with  a National

Pollution Discharge  Elimination System  (NPDES) permit.   See 33
                                                              

U.S.C.    1311(a) (1988).  Ordinarily, the NPDES permit issued to

                    

     1"Stressed  waters"  are  "those  receiving  environments in
which an applicant  can demonstrate  to the  satisfaction of  the
Administrator,  that  the  absence   of  a  balanced,  indigenous
population is caused solely by human perturbations other than the
applicant's modified discharge."  40 C.F.R.   125.58(t) (1993).

                                2

a  POTW  includes  certain technology-based  standards  known  as

secondary treatment  requirements.  See  id.   1311(b)(1)(B).   A
                                            

POTW can  obtain relief from  these requirements by  meeting nine

separate  criteria.   These criteria  are limned  in 33  U.S.C.  

1311(h).     They   require   the  applicant   to  make   various

demonstrations  regarding matters  such as:   the effects  of the

discharge  on  other sources  and on  marine life;  standards and

procedures for monitoring the  discharge; and methods of ensuring

control over the  sources introducing  waste into the  POTW.   Of

this  ennead,  only the  second  criterion,  embodied in  section

1311(h)(2), is relevant to this appeal.2

          To satisfy section 1311(h)(2), a POTW must show that

          the  discharge  of  pollutants in  accordance
          with  such  modified  requirements  will  not
          interfere,  alone  or  in   combination  with
          pollutants  from  other  sources,   with  the
          attainment  or  maintenance  of   that  water
          quality  which  assures protection  of public
          water   supplies   and  the   protection  and
          propagation   of   a   balanced,   indigenous
          population of shellfish, fish,  and wildlife,
          and allows recreational activities, in and on
          the water . . . .

33 U.S.C.   1311(h)(2)  (1988).  The information necessary  for a

section 1311(h)(2) demonstration is described by the implementing

                    

     2While EPA's initial decision may be read to rest in part on
PRASA's failure to satisfy  subsections 1311(h)(1) and (h)(9), as
well  as (h)(2), the  Environmental Appeals  Board did  not reach
those issues, see In re Mayaguez Regional Sewage Treatment Plant,
                                                                
NPDES Appeal No.  92-93 (August  23, 1993), slip  op. at 9  n.13.
Since the  initial decision constitutes final  agency action only
when  the Board denies review or summarily affirms, see 40 C.F.R.
                                                       
  124.91(f)  (1993), not where, as here,  the Board writes a full
opinion,  we decline  EPA's invitation  that  we decide  the case
under either (h)(1) or (h)(9).

                                3

regulation,  under  which  an   applicant  who  cannot  meet  the

requirements  of   40  C.F.R.     125.61(a)-(e)   due  to  "human

perturbations" other  than its  modified discharge must  meet the

stressed waters  requirements of  40 C.F.R.    125.61(f).   Under

these  requirements,  the  applicant  must  demonstrate  that its

discharge will not:

          (1)  contribute  to, increase,  or perpetuate
          such stressed conditions;

          (2)  contribute to further degradation of the
          biota or water quality  if the level of human
          perturbation  from  other sources  increases;
          and

          (3) retard the recovery of the biota or water
          quality  if the  level of  human perturbation
          from other sources decreases.

40  C.F.R.    125.61(f) (1993).   For  ease of  comprehension, we

sometimes  will  refer  to  the (f)(1)  showing  as  the "current

impacts" showing and the  (f)(3) showing as the "future  impacts"

showing.  Although the (f)(2) showing would seem to be intimately

related  to the  (f)(3)  showing, it  was  not discussed  in  the

proceedings  below and,  therefore, is  not a  matter of  current

concern.

          Unlike  typical NPDES  permit proceedings, EPA  makes a

tentative decision to grant or deny section 1311(h) modifications

prior to proposing a  permit.  See 40 C.F.R.    125.59(d) (1993).
                                  

A  POTW  that  has  submitted  a  timely   application  for  such

modification  may  revise  it once  as  of  right.    See  id.   
                                                              

125.59(d)(1).  EPA also  may authorize or request  the submission

of additional information.  See id.   125.59(f)(1).
                                   

                                4

          After  issuance of  a tentative  decision, followed  by

public notice  and opportunity for  written comment, EPA  makes a

final determination in  regard to  the proposed action.   See  40
                                                             

C.F.R.    124.15 (1993).  That decision becomes the final permit,

effective in thirty days, unless it is administratively appealed.

See id.    124.15(b).  If an appeal is taken, a party may request
       

an evidentiary hearing to contest the  resolution of any question

raised in  the earlier proceedings.   See  id.   124.74(a).   The
                                              

request must  specifically identify the legal  and factual issues

and  their relevance to the permit decision.  Id.   124.75(b)(1).
                                                 

EPA's Regional  Administrator then grants or  denies the request.

Id.   124.75(a)(1).
   

          If a request  for an evidentiary hearing is denied, the

denial  becomes final agency  action within thirty  days unless a

protest  is  filed  with  the Environmental  Appeals  Board  (the

Board).   See id.    124.60(c)(5), 124.91.   In turn, an order by
                 

the   Board   abjuring   review   renders  final   the   Regional

Administrator's previous decision.  See id.   124.91(f)(1).
                                           

II.  PROCEDURAL BACKGROUND

          This case aptly  illustrates how the  regulatory scheme

works.  PRASA initially sought a section 1311(h) modification for

its Mayaguez  sewage facility by application  dated September 13,

1979.   EPA,  hampered by  delays in  obtaining input  from local

environmental officials,  did not issue a tentative denial of the

request  until February  6, 1984.   One  year later,  after PRASA

presented  a revised  application,  EPA issued  another tentative

                                5

denial.  On December  13, 1991, following notice, comment,  and a

two-day public  hearing, EPA  dashed PRASA's  hopes by  issuing a

final denial of its request for modification.

          Hope,  of course, often  springs eternal, see Alexander
                                                       

Pope, An  Essay on Man,  Epistle 1  (1734), and PRASA's  hopes of
                      

obtaining  a modification were renewed in 1992 by a United States

Geological Survey (USGS) report  that contained some  conclusions

helpful  to PRASA's  cause.   PRASA commenced  its administrative

appeal  of  EPA's final  denial by  submitting  a request  for an

evidentiary hearing accompanied by the draft USGS study.  On July

23, 1992, the USGS report notwithstanding, EPA Region II rejected

PRASA's request for an evidentiary hearing.  The  Board affirmed.

See In re  Mayaguez Regional Sewage Treatment Plant, NPDES Appeal
                                                   

No. 92-93  (August  23, 1993)  (Board  Op.).   PRASA  immediately

invoked 33 U.S.C.   1369(b) and petitioned for judicial review.

          In a  passage that  frames the central  battleground in

this venue, the  Board self-consciously construed the  procedural

standard governing requests for evidentiary hearings, 40 C.F.R.  

124.75,  to necessitate  the  presence  of  a "genuine  issue  of

material fact" as a  prerequisite to avoiding summary disposition

of requests for review, Board Op. at 11.  The Board characterized

this requirement as "very similar to the requirement set forth in

Rule 56  of the Federal Rules of Civil Procedure."  Id.; see also
                                                                 

id.  at 13 (explaining that the Board's  standard and the Rule 56
   

standard are "for our purposes virtually identical").  Warming to

the task,  the Board  lauded case  law  dealing with  Rule 56  as

                                6

offering "useful guidance" in connection with section 124.75, id.
                                                                 

at  11, and  proclaimed  that the  Rule  56 standard  "should  be

applied in the context of evidentiary hearing requests  as well,"

id. at 13.
   

          Scrutinizing the  record through this  prism, the Board

held  that PRASA  did  not merit  a  hearing because  it had  not

presented  a  genuine issue  of material  fact  as to  either the

current impacts  showing required under 40  C.F.R.   125.61(f)(1)

or  the  future  impacts  showing  required  under  40  C.F.R.   

125.61(f)(3).    Put  another  way,  the  Board  thought  that no

evidentiary  hearing should  be  convened because  PRASA had  not

adduced sufficient  proof from which  a reasonable  decisionmaker

could  find, by a preponderance of the evidence,3 either that the

Mayaguez  POTW was  not  currently contributing  to the  stressed

condition of the surrounding  waters, or that the facility  would

not in the  future inhibit recovery  of the surrounding  stressed

waters in the event that other stresses relented.  See id. at 15-
                                                          

18.  This ruling was tantamount to the entry of summary judgment,

effectively terminating PRASA's administrative appeal.

III.  STANDARD OF REVIEW

          We are mindful that we operate at the busy intersection

of  three deferential standards of  review.  In  the first place,

                    

     3The Board routinely  applies the preponderance  standard in
permit determinations.   See Board  Op. at 13  n.18.  This  is of
                            
some consequence for present  purposes because Rule 56 frequently
implicates the substantive burdens  of proof that would  apply if
the particular  case went forward uninterrupted.   See Villanueva
                                                                 
v. Wellesley Coll., 930  F.2d 124, 129 (1st Cir.),  cert. denied,
                                                                
112 S. Ct. 181 (1991).

                                7

agency decisions  made by informal adjudication may  be set aside

only if they are "arbitrary,  capricious, an abuse of discretion,

or otherwise not in accordance  with law."  5 U.S.C.    706(2)(A)

(1988); see also  Motor Vehicle  Mfrs. Ass'n v.  State Farm  Mut.
                                                                 

Auto. Ins. Co., 463 U.S. 29, 43 (1983); Sierra Club v. Marsh, 976
                                                            

F.2d 763,  769 (1st Cir. 1992).   In the second  place, an agency

deserves an extra  measure of  deference with  regard to  factual

questions involving scientific matters  in its area of expertise.

See, e.g.,  Baltimore Gas &amp; Elec.  Co. v. NRDC, 462  U.S. 87, 103
                                              

(1983); FPC  v. Florida  Power &amp;  Light Co.,  404  U.S. 453,  463
                                           

(1972); Town of Brookline  v. Gorsuch, 667 F.2d 215,  219-20 (1st
                                     

Cir. 1981).   Mixed questions  of law and  fact, at least  to the

extent that they are fact-dominated, fall under this rubric.  See
                                                                 

Gorsuch, 667  F.2d at 220; cf. In re Howard, 996 F.2d 1320, 1327-
                                           

28 (1st Cir. 1993) (recognizing that appeals in the federal court

system are usually arrayed  along a degree-of-deference continuum

in  which  deference  increases  in  proportion  to  the  factual

component  of  the determination).    And,  finally, the  respect

usually accorded an  agency's interpretation of  a statute it  is

charged to execute,  see Chevron  U.S.A. Inc. v.  NRDC, 467  U.S.
                                                      

837,  842-45 (1984), is magnified when  the agency interprets its

own  regulations, see,  e.g., Arkansas  v. Oklahoma,  112  S. Ct.
                                                   

1046, 1059-60 (1992); Commonwealth of Mass., DPW  v. Secretary of
                                                                 

Agric., 984 F.2d 514, 524 (1st Cir. 1993) (citing cases).
      

IV.  ADMINISTRATIVE SUMMARY JUDGMENT

          In this court,  PRASA hawks most vigorously a  claim of

                                8

procedural   error.      This  claim   spotlights   the   Board's

interpretation of  EPA's standard  for dispensing  (or dispensing

with) evidentiary hearings,  especially its  conclusion that  the

text  of  the applicable  regulation,  40  C.F.R.    124.75(a)(1)

(stipulating that, to warrant  an evidentiary hearing and deflect

administrative  summary  judgment,   the  non-moving  party  must

establish the existence of  "material issues of fact  relevant to

the  issuance of the permit"),  should be read  as the functional

equivalent of  Fed. R.  Civ. P.  56(c) (which  authorizes summary

judgment if there  is "no genuine issue as to any material fact,"

and  thereby  requires  the  non-moving party  to  establish  the

existence  of a  genuinely  disputed material  fact to  forestall

summary judgment).   Section  124.75, PRASA asserts,  contains no

"genuineness" requirement,  and, moreover, even if  the Board had

the  authority  to  read  a "genuineness"  requirement  into  the

regulation, it could not do so without giving advance notice.  We

find no merit in these assertions.

         The Structure of Administrative Summary Judgment
                                                         

          In erecting an adjudicatory framework that included  an

administrative  summary  judgment   procedure,  EPA   necessarily

contemplated that, to qualify for an evidentiary hearing, a party

would have to present a genuine and  material dispute.  Those two

requirements are  inherent in the very  concept of administrative

summary  judgment.     Any   other  assumption  borders   on  the

chimerical:  under  federal case  law, a "material"  fact is  one

that  may affect the outcome of the case, see Anderson v. Liberty
                                                                 

                                9

Lobby,  Inc.,  477 U.S.  242, 248  (1986);  United States  v. One
                                                                 

Parcel of  Real Property, 960 F.2d  200, 204 (1st Cir.  1992);  a
                        

"genuine"  fact dispute  is one  that a  reasonable decisionmaker

could decide  in  favor  of either  party  under  the  applicable

standard of proof, or in other words, one that is worthy of being

more  fully  adjudicated (trialworthy  in  the courts'  parlance;

hearing-worthy in  the agencies' parlance).4   See Liberty Lobby,
                                                                

477  U.S. at 248-49;  One Parcel, 960  F.2d at 204.   To force an
                                

agency fully to adjudicate a  dispute that is patently frivolous,

or that can  be resolved in  only one  way, or that  can have  no

bearing  on the disposition of  the case, would  be mindless, and

would  suffocate the root purpose for  making available a summary

procedure.    Indeed, to  argue    as  does petitioner     that a

speculative  or purely theoretical  dispute    in other  words, a

non-genuine  dispute     can  derail summary  judgment  is  sheer

persiflage.

          We think that EPA's regulations lawfully can be read to

incorporate   this  binary   test,   featuring  genuineness   and

materiality.   What  is  more,  we  refuse to  attach  talismanic

significance to the absence of the stock phrase "genuine issue of

material  fact."  The reference found in 40 C.F.R.   124.75(a)(1)

to "material"  issues of  "relevant" fact achieves  precisely the

same  end.   In  practice, courts  and  agencies regularly  use a

variety of terms to describe the two pillars of summary judgment.

                    

     4While these definitions developed in the milieu of Rule 56,
they are by no means limited to that milieu.

                                10

          We  hasten   to  add  that,  despite   this  linguistic

equivalency,  explicitly   drawing  a   connection  to   Rule  56

accomplishes  three   things.    First,  it   provides  a  common

vocabulary,  easily understandable  by  litigants,  lawyers,  and

adjudicators.     Second,   it   introduces  into   an   agency's

jurisprudence  a  ready-made  ensemble of  decisional  precedents

associated with Rule 56,  see, e.g., Garside v. Osco  Drug, Inc.,
                                                                

895 F.2d  46, 48  (1st Cir.  1990) (holding  that at  the summary

judgment  stage the evidence must  be examined in  the light most

favorable to the nonmovant).   Third, it carries with  it certain

expectations,  conditioned by everyday  experience in the federal

courts, about the kind and degree of evidence deemed necessary to

create  a genuine  dispute  over a  material  fact.   See,  e.g.,
                                                                

Liberty Lobby, 477 U.S. at  249-50 (explaining that to  withstand
             

summary  judgment, evidence  must be  "significantly probative");

Garside, 895 F.2d at  49-50 (discussing type and kind  of opinion
       

evidence that may forestall summary judgment).

          Notwithstanding  the obvious  advantages  of drawing  a

parallel  between  the  courts'  and the  agencies'  versions  of

summary judgment, petitioner contends that the Board went too far

too fast.  In support, PRASA posits three interrelated arguments:

(1) that summary  judgment, as it  exists in  the courts, has  no

legitimate  place in  agency  practice;  (2) that  administrative

summary  judgment does not carry with it  the baggage of Rule 56;

and (3) that, in  all events, EPA took an  impermissible shortcut

and embraced a Rule  56 standard precipitously, without affording

                                11

fair notice or an  opportunity to respond.  These  arguments lack

force.

         The Validity of Administrative Summary Judgment
                                                        

          The   choice  between   summary   judgment   and   full

adjudication   in virtually any context   reflects a balancing of

the  value  of  efficiency against  the  values  of  accuracy and

fairness.    Seen in  that  light, summary  judgment  often makes

especially  good sense in an administrative forum, for, given the

volume  of   matters  coursing  through  an   agency's  hallways,

efficiency is perhaps  more central to an agency than to a court.

See Charles  C. Ames  &amp; Steven  C. McCracken,  Framing Regulatory
                                                                 

Standards to Avoid Formal Adjudication:  The FDA As a Case Study,
                                                                

64  Cal. L.  Rev. 14, 34-35  (1976).   At the  same time, summary

judgment  is less  jarring in  the administrative  context; after

all,  even  under  optimal  conditions, agencies  do  not  afford

parties  full-dress  jury  trials.   Taking  these  factors  into

account, it  is  unsurprising that  most  major agencies  in  the

federal system  have opted to  make available procedures  for the

summary  disposition  of adjudicatory  matters.    See, e.g.,  10
                                                            

C.F.R.   2.749  (1994) (NRC); 16  C.F.R.   3.24 (1994)  (FTC); 21

C.F.R.   12.93 (1994) (FDA); 47  C.F.R.   1.251 (1993) (FCC);  40

C.F.R.    22.20, 124.75, 164.91 (1993) (EPA); 29 C.F.R. 102.35(h)

(1993) (NLRB); 29 C.F.R.   2200.2 (1993) (OSHA).5

                    

     5An  important exception is the SEC.  See Rules of Practice,
                                              
Exchange Act Release No. 33,163 [1993  Transfer Binder] Fed. Sec.
L. Rep. (CCH)   85,257, at 84,742 (Nov. 5, 1993)  (rejecting Rule
56 model on grounds  that SEC practice does not  permit discovery
or prehearing affidavits).

                                12

          Administrative  summary judgment  is  not  only  widely

accepted, but  also intrinsically valid.   An agency's  choice of

such a  procedural device is  deserving of  deference under  "the

very basic tenet  of administrative law  that agencies should  be

free  to fashion their own  rules of procedure."   Vermont Yankee
                                                                 

Nuclear Power Corp. v. NRDC, 435 U.S. 519, 544  (1978).  Applying
                           

this  tenet,  the  Court  has  upheld an  assortment  of  summary

procedures, some  closely  resembling Rule  56,  in the  face  of

claims  that  the procedures  are  invalid  because they  deprive

parties of  their "right"  to a hearing  before the agency.   See
                                                                 

Heckler v.  Campbell, 461 U.S.  458, 467 (1983);  National Indep.
                                                                 

Coal Operators' Ass'n v. Kleppe, 423 U.S. 388, 398-99 (1976); FPC
                                                                 

v.  Texaco  Inc., 377  U.S. 33,  39-44  (1964); United  States v.
                                                              

Storer  Broadcasting Co., 351 U.S. 192, 205 (1956); see also Ames
                                                            

&amp;  McCracken, supra, at 41 n.164 (listing cases to similar effect
                   

involving  different  agencies).    Most  significantly  for  our

purposes, the  Court has given  its seal of approval  to a highly

analogous  summary  procedure  for   denial  of  a  hearing,  see
                                                                 

Weinberger v. Hynson, Westcott &amp; Dunning, Inc., 412 U.S. 609, 621
                                              

(1973)  (involving  FDA's  procedure  for  administrative summary

judgment), and to an  earlier version of the very  procedure that

we review today,  see Costle  v. Pacific Legal  Found., 445  U.S.
                                                      

198, 214 (1980).6

                    

     6Costle  dealt  with the  direct  ancestor  of 40  C.F.R.   
            
125.75(a)(1), namely,  40 C.F.R.   125.36(c)(1)(ii)  (1979).  The
Court held  that the EPA  lawfully could "limit  any adjudicatory
hearing to  the  situation where  an  interested party  raises  a
material issue of fact."  445 U.S. at 214.

                                13

          Petitioner's  claim  of invalidity  consists  mainly of

rhetorical flourishes and cannot scale this mountain of case law.

Due  process  simply does  not require  an  agency to  convene an

evidentiary hearing when it  appears conclusively from the papers

that, on the available evidence, the case only can be decided one

way.     See  Hynson,  412   U.S.  at  621.     It  follows  that
                    

administrative  summary  judgment,  properly  configured,  is  an

acceptable procedural device.

               Applicability of Rule 56 Precedents
                                                  

          Petitioner's   attempt  to   break  the   bond  between

administrative summary judgment and its courtroom  counterpart is

similarly  unavailing.    From  its  inception,  the  concept  of

administrative summary judgment  has been linked  inextricably to

Fed. R. Civ. P. 56.   In all probability, it was  Professor Davis

who first forged this link.  He wrote:  "Some agencies might well

take a leaf from the federal  rules of civil procedure and permit

summary  judgment  without evidence  when  no  issue  of fact  is

presented."   1 Kenneth C.  Davis, Administrative Law  Treatise  
                                                               

8.13, at  578 (1958).   A  dozen years  later, two  other leading

administrative   law  scholars  seized  upon  this  sentence  and

developed it into a highly influential report to the Committee on

Agency   Organization   and  Procedure   of   the  Administrative

Conference of the United  States.  See Ernest Gellhorn  &amp; William
                                      

F.   Robinson,   Jr.,    Summary   Judgment   in   Administrative
                                                                 

Adjudication, 84 Harv. L.  Rev. 612 (1971) (rendering  the report
            

in article form).

                                14

          Consistent  with  the   circumstances  of  its   birth,

administrative   summary   judgment   has   maintained   a  close

relationship with Rule 56.  Many agencies habitually look to Rule

56 case  law for  guidance in  respect to administrative  summary

judgments.   See, e.g., Phillips  Pipe Line Co.  v. Phillips Pipe
                                                                 

Co., 1994  FERC LEXIS 757,  at *3 (April  26, 1994)  (applying 18
   

C.F.R.     385.217);  United  States  v.  Scotto  Bros.  Woodbury
                                                                 

Restaurant,  Inc., 1993 OCAHO LEXIS 95, at *14 (December 7, 1993)
                 

(outlining practice in Executive  Office for Immigration Review).

Other agencies, like EPA  in the present context, have  taken the

step of formalizing  the relationship.   See, e.g.,  29 C.F.R.   
                                                  

2200.2 (1993) (making Rule  56 directly applicable to proceedings

before  OSHA); see  also In  re Summary  Decision  Procedures, 34
                                                             

F.C.C.2d  485,  487-88  (1972)  (characterizing  an  FCC  summary

disposition regulation, 47 C.F.R.    1.251(a)(1), as "essentially

the same" as Rule 56).

          In view of  this history, one respected court  has gone

so far as  to say,  perhaps overbroadly, that  the principles  of

summary  judgment outlined  in  Liberty Lobby  "apply with  equal
                                             

force  in  the context  of  administrative  judgment."   John  D.
                                                                 

Copanos &amp; Sons, Inc. v. FDA,  854 F.2d 510, 523 (D.C. Cir. 1988).
                           

We take a more circumspect view.   In our opinion, Rule 56 is the

prototype for administrative summary judgment procedures, and the

jurisprudence that has grown up around Rule 56 is, therefore, the

most  fertile source of  information about administrative summary

judgment.   Thus,  "[w]ith  minor individual  modifications,  the

                                15

summary judgment  procedures should  be similar in  most agencies

[to  those  under   Rule  56]."     1  Charles   H.  Koch,   Jr.,

Administrative Law &amp; Practice    5.78, at 419 (1985).  Hence,  we
                             

reject  petitioner's  contention  that  Rule  56  precedents  are

inapposite in proceedings before administrative agencies.

                     Departure from Precedent
                                             

          The  linchpin of petitioner's final procedural argument

is the notion  that the Board broke new ground  in patterning its

inquiry after Rule 56.  We disagree.

          It  is  well  established  that agencies  are  free  to

announce  and develop  rules in  an adjudicatory  setting.   See,
                                                                

e.g., NLRB v.  Bell Aerospace Co., 416 U.S. 267,  294 (1974).  Of
                                 

course,  there are limits on this freedom.   As a general matter,

when  an adjudicating  agency retroactively  applies a  new legal

standard  that significantly  alters the  rules of the  game, the

agency  is  obliged  to  give  litigants   proper  notice  and  a

meaningful  opportunity to  adjust.7   See, e.g.,  Aero Mayflower
                                                                 

Transit Co. v.  ICC, 699 F.2d 938, 942 (7th  Cir. 1983); Hatch v.
                                                              

FERC, 654  F.2d 825, 835 (D.C. Cir. 1981).  By the same token, an
    

agency "cannot depart significantly from prior precedent `without

explicitly recognizing that it is doing so and  explaining why.'"

Congreso  de Uniones Industriales v.  NLRB, 966 F.2d  36, 39 (1st
                                          

                    

     7While this  requirement derives in  part from a  section of
the  Administrative  Procedure Act  that  applies  only to  full-
fledged  hearings,   see  5   U.S.C.     554(b)(3)   (1988),  the
                        
requirement is  grounded on  general considerations  of fairness.
Accordingly, we  see no reason  why it should  not also apply  to
adjudicative proceedings.

                                16

Cir. 1992) (citation omitted); accord Davila-Bardales v. INS,    
                                                            

F.3d    ,     (1st Cir. 1994) [No. 93-2124, slip op. at 8].

          These  principles  do  not assist  petitioner's  cause.

Though petitioner asseverates that, in the proceedings below, EPA

abruptly adopted a new  legal standard that substantially changed

the showing required of  a party seeking an evidentiary  hearing,

this  scenario  is more  imagined than  real.   Here,  the record

reflects  neither a departure from precedent nor an alteration of

the required showing.   To the contrary, the Board's  approach to

section 124.75 proceeds  naturally from its earlier  construction

of  the provision  and falls  well within  the mainstream  of its

previously established practice.  We explain briefly.

          Although the  Board never before has  made the equation

between Rule 56 and EPA's summary judgment procedure so explicit,

it traditionally  has equated its procedural  standard for denial

of an evidentiary hearing anent an  NPDES permit with the Rule 56

yardstick.    On  at  least  three  prior  occasions,  the  Board

suggested that section 124.75's  reference to the presentation of

"material  issues of fact relevant to the issuance of the permit"

requires  the nonmovant to set forth a "genuine issue of material

fact."  See  In re City of  Jacksonville, Etc., NPDES  Appeal No.
                                              

91-19 (Aug. 4,  1992), slip op.  at 2; In  re Miami-Dade Water  &amp;
                                                                 

Sewer Auth. Dep't, NPDES  Appeal No. 91-14 (July 27,  1992), slip
                 

op. at 17;  In re Great Lakes Chem. Corp.,  NPDES Appeal No. 84-8
                                         

                                17

(Sept. 3, 1985), slip op. at 4.8

          Then,  too, EPA has long  espoused the view,  in a wide

variety of settings, that  while the Civil Rules are  not binding

on   agencies,  they  may   inform  administrative   practice  in

appropriate  situations.  See,  e.g., In re  Harmon Elecs., Inc.,
                                                                

1993 RCRA  LEXIS 113 at  *9-*10 (Aug.  17, 1993);  In re  Premier
                                                                 

Metal  Prods., 1992 RCRA LEXIS 156, at  *2 (Dec. 23, 1992).  This
             

is an  approach rather  consistently followed both  by EPA,  see,
                                                                

e.g., In  re Wego Chem. &amp;  Mineral Corp., 1993 TSCA  LEXIS 91, at
                                        

*25-*26  (Feb. 24, 1993), and  by the federal  courts, see, e.g.,
                                                                

Amberg v. FDIC,  934 F.2d  681, 685 (5th  Cir. 1991)  (suggesting
              

that administrative  decisionmakers should look  for guidance  to

the Civil Rules when interpreting regulations containing concepts

or language derived in part from those rules).

          In sum,  the procedure to  which PRASA objects  did not

spring  suddenly and  unannounced from  EPA's bureaucratic  brow.

Rather,  by the  time  that the  agency  decided this  case,  the

concept  that  only  the presence  of  a  genuine  issue about  a

material fact  could forestall brevis disposition  had taken deep
                                     

                    

     8Great  Lakes is of special  interest, for in  that case the
                  
EPA  made manifest that it considered the term "material" as used
in section 124.75 to be akin to the federal courts' definition of
"genuine" under Rule 56.  After making a casual reference to Rule
56's language, the Board concluded,  using the terms contained in
section 124.75, that the petitioner's evidence was "relevant" but
not "material."   It  was  not "material,"  the Board  explained,
because "evidentiary hearings [should  not] be granted whenever a
party  makes a  bare  assertion, without  anything  more, that  a
permit's monitoring requirements should  be reduced or modified  
this would hopelessly crowd hearing dockets and clearly is not in
accord  with the  purposes of  . .  . the  Agency's regulations."
Great Lakes, at 14.
           

                                18

root in administrative soil.   Thus, PRASA should have  known all

along that it would be expected to present a genuine and material

dispute  in order  to earn  an evidentiary  hearing.   Though the

Board  had never before invoked Rule 56  in haec verba as a guide
                                                      

to  section   124.75,  any  reasonable   litigant  familiar  with

administrative practice  in general and with  EPA's precedents in

particular should have anticipated  that it would be  required to

present evidence  adequate to overcome the  functional equivalent

of a Rule 56 motion.9

          Little more need be said.   The Board's use of Rule  56

here  was  consistent  both  with its  prior  practice  and  with

prevalent  understandings  of  administrative  summary  judgment.

Thus, the Board's  articulation, albeit "new" in a certain sense,

falls well within the range of hitherto  unspoken principles that

appropriately may  be announced  in the  course  of rendering  an

adjudicative determination.  See Bell Aerospace, 416 U.S. at 294;
                                               

SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1947); Molina v. INS,
                                                                

981 F.2d 14, 22-23 (1st Cir. 1992).

          In  the last  analysis, courts  must take  a practical,

commonsense view  of the restrictions that  constrain an agency's

freedom to  alter prior practices.   Those restrictions, properly

construed,  do  not  lock an  agency  into  a  position where  it

                    

     9In any event, to the  extent (if at all) that  PRASA failed
to realize that Rule  56 would inform the Board's  decision about
whether to  hold a hearing, we fail to see how it was prejudiced.
For  aught that appears,  PRASA's evidentiary  presentation would
not have  differed; to this date it  has been unable to deterrate
any proof  sufficient  to create  a  genuine issue  about  either
current or future impacts.

                                19

invariably must parrot the same phrases or perpetually chant  the

same mantra.   Reasonable  refinement and reformulation  are both

permissible   and   advisable  in   administrative  adjudication.

Nothing more transpired here.

V.  THE STRESSED WATERS SHOWINGS

          We now move from the procedural to the substantive.  In

scrutinizing  an  order  of  an  agency  denying  an  evidentiary

hearing, a  reviewing court  must determine whether  the agency's

findings accurately  mirror the record,  and if they  do, whether

those findings warrant  denial of a  hearing under the  pertinent

regulations.  See Hynson, 412 U.S. at 622.  In this instance, the
                        

first part of the inquiry tells the tale, for, if PRASA failed to

present  evidence adequate to create  a genuine issue of material

fact  on one or  more critical criteria,  as EPA  found, then EPA

properly denied the requested hearing.

                    The Future Impacts Showing
                                              

          Under 40  C.F.R.   125.61(f)(3), it  was incumbent upon

PRASA to show, inter  alia, that the emissions from  the Mayaguez
                          

POTW would not "retard the recovery of the biota or water quality

if the level of human perturbation from other sources decreases."

In  promulgating this  requirement,  EPA recognized  that it  was

erecting  a high hurdle.  Indeed, it  stated in a preamble to the

regulations:

          As a practical  matter, it will be  extremely
          difficult  for  most  applicants  discharging
          into  stressed  waters  to  demonstrate  that
          their discharge will meet the requirements of
          section  125.61.   As  a factual  matter, the
          discharge  of  additional pollutants  into an

                                20

          already polluted marine environment virtually
          always  increases  or contributes  to adverse
          impact;  it  is  extremely  difficult,  as  a
          practical matter, to demonstrate that it does
          not.

44 Fed. Reg. 34,784, 34,806 (June 15, 1979).

          EPA concluded  that PRASA had not  cleared this hurdle,

and the Board concurred.  It noted that the  studies submitted by

petitioner   principally  the USGS  report    addressed only  the

current  impacts  of the  facility's  emissions  relative to  the

current  impacts of all other  emissions, and did  not purport to

make  predictions regarding future impacts.  See Board Op. at 15-
                                                

16.  Accordingly, without defining  exactly what type of evidence

might  surmount  the (f)(3)  hurdle,  the  Board determined  that

petitioner's  effort came up short.   If this determination holds

water,  then the  agency  had  a  right  summarily  to  deny  the

petition.10

          This  reasoning finds  a striking  parallel in  Hynson.
                                                                

There  the  Court  agreed that  an  agency  was  not required  to

"provide a formal hearing  where it is apparent at  the threshold

                    

     10PRASA  makes a  rather convoluted threshold  argument that
implicates the order of the showings which must be made to secure
modification of secondary treatment  requirements.  In this case,
we  doubt  that the  order of  the  showings makes  the slightest
difference.  Moreover, there is absolutely no basis for believing
either that the showings  must be made in a  particular sequence,
or that separate hearings must be held for each showing.   Absent
a  contrary indication in the regulation itself   and none exists
here   we think  it is fair to assume  that a party must  satisfy
every element of  a provision  written in the  conjunctive.   See
                                                                 
WJM,  Inc. v.  Massachusetts DPW,  840 F.2d  996, 1011  (1st Cir.
                                
1988); Donovan v. Burger King Corp., 672 F.2d 221, 227  (1st Cir.
                                   
1982); see also 1A  Norman J. Singer, Sutherland Stat.  Constr.  
                                                               
21.14 (5th ed. 1993).

                                21

that the applicant  has not  tendered any evidence  which on  its
                                                                 

face  meets  the statutory  standards  as  particularized by  the
    

regulations," Hynson, 412 U.S. at 620 (emphasis in the original).
                    

Spurred  by Hynson,  see id.  at 621 n.17,   FDA  soon thereafter
                            

announced that, with regard to  an imprecise regulation, a  study

would  not conclusively  be deemed  inadequate unless  it totally

failed "even to attempt to comply."  See 39 Fed.  Reg. 9757 (Mar.
                                        

13, 1974).  Since that time, the courts have upheld FDA's summary

denials  of hearings  under  this policy.    As the  District  of

Columbia Circuit explained:

          [E]ven  "a  regulatory provision  which seems
          vague  in the  abstract  may  nonetheless  be
          conclusively  at  odds   with  a   peculiarly
          deficient  item of  evidence."   Thus  . .  .
          summary  judgment may be entered not only for
          failure to comply  with precise  regulations,
          but   also   "on   the   basis   of  manifest
          noncompliance   with  general   statutory  or
          regulatory provisions . . . ."

Copanos,  854  F.2d  at  522  (citations  omitted).    We  agree.
       

Although in  some cases  an imprecise regulation  may require  an

agency to  give an applicant the benefit of the doubt regarding a

summary  decision, other cases will be so clear-cut as to warrant

summary  adverse action,  notwithstanding the imprecision  in the

agency's standards.  We  believe the present case falls  into the

heartland of the latter category.

          The Board's reasoning is also hauntingly reminiscent of

Buttrey  v. United States, 690  F.2d 1170 (5th  Cir. 1982), cert.
                                                                 

denied, 461 U.S.  927 (1983),  a case involving  the Clean  Water
      

Act.  There, the court  of appeals agreed that the Army  Corps of

                                22

Engineers  need not  hold a  hearing on  every application  for a

permit  to  discharge dredged  or  fill  material into  navigable

waters.    Id.  at  1174-83.    One  reason given  was  that  the
              

petitioner

          apparently decided  not  even to  attempt  to
          make the three  showings required under  [the
          applicable    regulations].        Procedural
          improvements  in  the  nature  of  trial-type
          safeguards  could do  nothing  to  remedy  so
          fundamental a flaw in the prima facie case.

Id. at 1183 (footnote omitted).
   

          PRASA  does not deny  that its  studies failed  to draw

direct  conclusions regarding  future  impacts.11    Instead,  it

attempts to discredit EPA's  interpretation of the future impacts

regulation, labelling  it absolutist.  This  fusillade misses the

mark.      Though   an   absolutist   interpretation,   rendering

modifications of secondary  treatment requirements for  emissions

into stressed waters unobtainable,  might well be problematic, we

do not read the Board's opinion in that fashion.

          In  considering   this  issue,  the  Board  refused  to

presume,  absent scientific  evidence, that  a large  quantity of

lightly treated sewage   estimated  as 850 tons per year    would

have  no impact on the  surrounding stressed waters  in the event

that  other stresses  abated.   See  Board Op.  at  15-16.   This
                                   

                    

     11PRASA does  offhandedly suggest that its  studies make the
requisite  showing  indirectly.   Compliance  with (f)(1),  PRASA
                              
muses, might in  some cases  provide a scientific  basis for  the
prediction required by (f)(3).  While that may (or may not) be so
in  theory, it  is certainly not  so on  the facts  of this case.
Here, PRASA's showing of no current impacts was weak at best, see
                                                                 
infra  note 12,  and cannot  support the  weight of  the proposed
     
inference.

                                23

neither  betokens  an  absolutist   mindset  nor  forecloses  the

possibility that  the Board might  entertain a presumption  of no

future  harm  if  presented  with  the  prospect  of more  modest

emissions.     Nor  does   the  Board's  opinion   foreclose  the

possibility  that it might find a scientific showing of no future

impacts  to be persuasive.   On the contrary,  after noting EPA's

"great reluctance"  to sanction  emissions into stressed  waters,

the Board made a point of leaving the door ajar:

          This  is not  to say  that there  is no  case
          where discharges into  stressed waters  would
          be   allowed.     Where,  for   example,  the
          receiving waters are  stressed by  pollutants
          other  than those  in the  proposed discharge
          and  such pollutants  do  not  contribute  to
          existing stresses,  a   301(h)  permit may be
          appropriate.

Id. at 18 &amp; n.22.
   

          To say more  would be to  paint the lily.   We conclude

that  EPA  did  not  promulgate an  absolutist  standard.    And,

moreover, we find  the Board's  rendition of the  evidence to  be

faithful  to the  record,  its reasoning  to  be sound,  and  its

position  to be  well-supported by  authority.   Consequently, we

hold  that the  Board  acted  within  its  authority  in  denying

petitioner an evidentiary  hearing and summarily terminating  the

administrative appeal on the ground that the studies submitted by

petitioner failed to  make any attempt to  satisfy the strictures

of 40 C.F.R.   125.61(f)(3).12

                    

     12The Board  gave an alternative reason  for upholding EPA's
refusal to convene an evidentiary hearing, ruling that petitioner
failed to show  that its discharge did not  currently "contribute
to,  increase,  or perpetuate  . .  .  stressed conditions."   40

                                24

VI.  CONCLUSION

          We  need  go  no  further.    PRASA's  application  for

modification  and  its  concomitant  request for  an  evidentiary

hearing were  fairly considered and appropriately  rejected.  For

the reasons set forth herein, we uphold the agency's final action

and deny PRASA's petition for review.

It is so ordered.
                

                    

C.F.R.   125.61(f)(1) (1993).  We need not pursue this point, for
petitioner's  failure to  adduce hearing-worthy  evidence  on the
future impacts prong is  in itself enough to justify  denying the
instant  petition  for  judicial  review.    We  add in  passing,
however, that the record strongly suggests the correctness of the
Board's conclusion on the current impacts prong as well.

                                25
