
USCA1 Opinion

	




                            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  & 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          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          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          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 & Elec.  Co. v. NRDC, 462  U.S. 87, 103          ___  ____   __________________________    ____          (1983); FPC  v. Florida  Power &  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          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                   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 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  & 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          ________________________                            ___ ____          &  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 & 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                         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  & 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 & 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 & 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                               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  &                                                 __________________________          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. &  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          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                              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 & 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          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.          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
