El Dorado Chemical v. United States Environmental Protection Agency et al
ORDER granting 40 Motion for Summary Judgment; denying 21 Motion for Summary Judgment. Signed by Honorable Susan O. Hickey on March 25, 2013. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
EL DORADO CHEMICAL COMPANY
CASE NO. 1:11-CV-1059
UNITED STATES ENVIRONMENTAL
LISA P. JACKSON, Administrator,
United States Environmental Protection Agency; and
AL ARMENDARIZ, Regional Administrator,
United States Environmental Protection Agency Region 6
Before the Court are the parties’ cross motions for summary judgment. (ECF No’s 21 &
40). Both parties ask the Court to grant judgment as matter of law upon review of an
administrative decision by the United States Environmental Protection Agency (“EPA”). Each
party has responded to the other’s motion, and each has filed a reply. (ECF No’s 38, 42, 46, &
49). The matter is ripe for the Court’s consideration. Because this case concerns EPA action
within its own sphere of expertise, and its decision is supportable on a rational basis, the Court
grants summary judgment in Defendants’ favor.
This action involves a complex water dispute between a chemical company and EPA. In
2006, El Dorado Chemical Company (“EDCC”) submitted a proposal to EPA to make certain
changes to Arkansas’ water quality standards. EPA denied that proposal, which left EDCC in
violation of the existing standards. EDCC now seeks review of that decision under the
Administrative Procedures Act asking the Court to declare EPA’s decision arbitrary, capricious,
and inconsistent with the law. EDCC asserts that EPA’s decision was unprecedented. EPA,
however, contends that a rational connection exists between the facts in the administrative record
and its final determination and that its decision is entitled to deference.
EDCC operates a chemical manufacturing facility in El Dorado, Arkansas, where it
discharges certain levels of dissolved minerals into two particular unnamed tributaries (“UTA”
and “UTB”) that reach two downstream bodies of water named Flat Creek and Haynes Creek.
These dissolved mineral discharges are subject to Arkansas’s water quality standards, which are
developed by the Arkansas Department of Environmental Quality (“ADEQ”), adopted by the
Arkansas Pollution Control and Ecology Commission (“APC&EC”), and ultimately approved by
EPA. EPA acts as an enforcement agency to ensure that these standards are consistent with the
Clean Water Act. Arkansas’s water quality standards are enforced through a permitting program
called the National Pollution Discharge Elimination System (“NPDES”).
In June 2004, EDCC renewed its NPDES permit. The renewed permit, however,
contained new, more stringent limits on EDCC’s discharges of dissolved minerals. The permit
provided for a three year compliance period, requiring compliance with the new limits by June 1,
2007. Unfortunately, EDCC has been unable to comply.
In November 2006, EDCC initiated a Third Party Rulemaking (the “Rulemaking”)
pursuant to the ADEQ’s Continuing Planning Process 1 and Administrative Guidance Document
in an effort to revise the dissolved minerals water quality criteria for UTA, UTB, and the
downstream reaches of Flat Creek and Haynes Creek. In January 2008, after reviewing the
Rulemaking, EPA notified EDCC that it was unable to take action because EDCC’s proposal
The Continuing Planning Process outlines the requirements for site specific changes to water quality standards. It
also provides that when a requested change deals with dissolved minerals, the Administrative Guidance Document
applies. The Administrative Guidance Document identifies the procedure and documentation required to support a
site specific change to the dissolved mineral water quality standards.
failed to “provide adequate supporting documentation to demonstrate that the revised site
specific criteria are appropriately protective.” 2 In essence, EPA’s initial response to EDCC’s
proposal was a request for more documentation showing that the revised water quality standards
would adequately protect the designated uses of UTA, UTB, and Flat and Haynes Creeks.
Meanwhile, in June 2007, the designated compliance period set forth in EDCC’s renewed
NPDES permit expired. So, in June 2008, the ADEQ and EPA entered into a Consent
Administrative Order to resolve EDCC’s permit violations by setting interim limits for dissolved
mineral discharges. The interim limits were to expire upon approval of EDCC’s proposed
Rulemaking, or December 31, 2009, whichever occurred first.
In August 2008, EDCC, through the ADEQ, provided EPA with additional
documentation. According to EDCC, the initial and additional documentation together was
substantially more comprehensive than what EPA had accepted and approved in prior third party
rulemakings, such as in EPA’s Record of Decision for In re Bayou Meto Water Management
District, APC&EC Docket No. 07-004-R. 3 Nevertheless, in April 2009, EPA maintained that it
was still unable to approve EDCC’s Rulemaking for similar reasons stated in its January 2008
notice—it needed more documentation showing that the revised criteria would be adequately
Thereafter, the parties met on multiple occasions via telephone conference to identify
additional documentation and testing and to develop a work plan that would provide the
additional information that EPA needed. In September 2009, EDCC completed the work plan
ECF No. 22; DORADO-000795. In simple terms, one of the aims of the Clean Water Act is to protect the
designated uses—such as swimming, fishing, or aquatic life—of each body of water from impairment. See 40 C.F.R.
§ 131.6. In its January 2008 letter, EPA apparently believed that EDCC’s proposal would not adequately protect the
designated uses for UTA, UTB, and Flat and Haynes Creeks.
ECF No. 21, Exhibit B, supplemented to the Administrative Record by EPA.
ECF No. 22; DORADO-000811.
and supplemented its results to the ADEQ and EPA. In April 2010, EPA provided its comments
on EDCC’s supplemental information.
EPA found that the updated information provided more detail supporting the fact that
discharges by EDCC may not affect aquatic life—a relevant designated use—of UTA and UTB. 5
However, EPA expressed concern for certain aquatic life impacts that EDCC’s proposal would
have on the downstream reaches of Flat Creek and Haynes Creek. Accordingly, EPA suggested
certain steps that EDCC might take to eliminate that concern. For example, EPA suggested that
EDCC could request that Arkansas perform a Use Attainability Analysis, which could result in a
change to the designated use of the impacted bodies of water. Because EDCC believed those
steps were not feasible, or otherwise out of its control, it took a different approach. Instead,
EDCC requested that the Rulemaking be reopened, and it abandoned the part of the Rulemaking
related to Flat Creek and Haynes Creek. It rescinded that portion of its proposal and limited the
request to a revised water quality criterion for UTA and UTB only. EDCC apparently hoped this
would compel approval since EPA had already suggested that EDCC’s discharges may not
impact aquatic life in UTA and UTB. EDCC was mistaken.
After EDCC resubmitted a revised Rulemaking, following the appropriate Continuing
Planning Process (“CPP”) and Administrative Guidance Document (“AGD”) procedures for a
second time, EPA again balked at the Rulemaking’s potential downstream impacts on Flat Creek
and Haynes Creek. On August 31, 2011, EPA issued its final decision declining to approve
EDCC’s Rulemaking. EPA stated several specific reasons for its decision in a Technical Support
Document 6 including the following:
EPA concluded that the revised criteria were not shown to be protective of
either instream (UTA and UTB) or downstream (Flat and Haynes Creeks)
ECF No. 23; DORADO-001684.
ECF No. 38; DORADO-001895.
designated uses, citing a lack of documentation showing that the revised
criteria are protective of aquatic life and evidence of sub-lethal effects to
reproduction in downstream waterbodies;
EPA concluded that the revised criteria may not provide for the attainment
of the downstream minerals water quality criteria, noting that EDCC did
not consider the downstream criteria in Flat and Haynes Creeks when
calculating the revised criteria for UTA and UTB.
EPA concluded that the mass-balance equation used to derive the criteria
is scientifically indefensible and failed to take into account important
EPA concluded that the weight of supporting evidence relied on by EDCC
was flawed because it omitted relevant sources of information and because
results of biological sampling, when compared to least-impacted reference
streams (as opposed to impacted streams) in the Gulf Coast ecoregion,
indicate impairment of biota. 7
The Technical Support Document also rejected one of the main contentions that EDCC
submitted in its supplemental report. EDCC had submitted that any impact on aquatic life in Flat
and Haynes Creeks was not EDCC’s fault, but instead, the result of legacy oil and gas activities
from upper Flat Creek. EPA dismissed this contention because the study EDCC submitted failed
to specifically identify other sources as the primary cause of impairment in upper Flat Creek.
EPA therefore found unacceptable the cumulative effects that the dissolved mineral
concentrations in UTA and UTB, in conjunction with the concentrations in upper Flat Creek, had
on the downstream portions of Flat and Haynes Creeks.
Following EPA’s final decision, EDCC filed this action seeking the Court’s review.
EDCC raises several objections as grounds for remand, requesting that the Court mandate that
EPA approve its Rulemaking. First, EDCC claims that EPA’s decision runs counter to the CPP, a
procedural document prescribing the requirements for changes to site specific water quality
criteria. Second, EDCC contends that the EPA decision was driven by improper motives. Third,
ECF No. 40; DORADO001894-1895
EDCC objects to EPA’s rejection of its “mass balance” approach, 8 arguing that such a ruling
contradicts past EPA decisions finding the mass balance approach scientifically acceptable in
numerous other third party rulemakings. Each of these objections must be reviewed through the
lens of the Administrative Procedure Act (“APA”).
STANDARD OF REVIEW
Judicial review of administrative decisions is governed by the APA. 5 U.S.C. § 706.
Under the APA, a court’s review of an agency decision is limited. Voyageurs Nat. Park Ass’n v.
Norton, 381 F.3d 759, 763 (8th Cir. 2004). A court is “only permitted to set aside agency action
that is ‘arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with
law.’” Id. An agency decision is considered arbitrary and capricious if:
the agency has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.”
Central South Dakota Co-op. Grazing Dist. v. Secretary of U.S. Dept. of Agriculture, 266 F.3d
889, 895 (8th Cir. 2001) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
However, “[i]f an agency’s determination is supportable on any rational basis,” the
reviewing court must uphold it. Voyageurs Nat. Park Ass’n, 381 F.3d at 763. In other words, the
court “must affirm the Rule[making] if the record shows EPA considered all relevant factors and
articulated a ‘rational connection between the facts found and the choice made.’” ATK Launch
The mass balance approach is a scientific method used by EDCC to evaluate the relevant bodies of water affected
by its proposed Rulemaking. According to EPA, a mass balance analysis represents “an aquatic system through an
accounting of mass entering and exiting the system. This analysis simplifies the representation of the waterbody and
does not estimate or simulate detailed biological, chemical, or physical processes. It can, however, be a useful and
simple way to estimate the allowable loading for a water body to meet water quality standards or other targets.” ECF
No. 42, n. 5 (citing Handbook for Developing Watershed Plans to Restore and Protect Our Waters (EPA 2008) at §
9.4.2, p. 9-7, available at “http://water.epa.gov/polwaste/nps/upload/2008_04_18_NPS_watershed_handbook_
Systems, Inc. v. E.P.A., 669 F.3d 330, 336 (D.C. Cir. 2012) (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). This is particularly true “when an agency is acting
within its own sphere of expertise.” Id. In such circumstances, agency decisions receive “a high
degree of deference.” Sierra Club v. E.P.A., 252 F.3d 943, 947 (8th Cir. 2001). “This level of
deference is especially appropriate in review of EPA’s administration of the complicated
provisions of the Clean Water Act.” ATK Launch Systems, Inc., 669 F.3d at 336. The court is to
make a searching inquiry into the facts in the record, but it does not substitute its own judgment
for that of the agency, “even if the evidence would have also supported [an] opposite
conclusion.” South Dakota v. U.S. Dept. of Interior, 423 F.3d 790, 799 (8th Cir. 2005).
The proposed Rulemaking at issue in this case is subject to the Clean Water Act
(“CWA”). The objective of the CWA is to “restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To achieve this goal, section
303 of the Act provides a framework for establishing water quality standards and for reviewing
and revising those standards. 33 U.S.C. § 1313.
Generally, “[s]tates are responsible for reviewing, establishing, and revising water quality
standards.” 40 C.F.R. § 131.4(a). States must do so in a manner that “protect[s] the public health
or welfare, enhance[s] the quality of the water and serve[s] the purposes of the [CWA].” 33
U.S.C. § 1313(c)(2)(A). To achieve that end, states are required to establish “designated uses” of
each body of water and develop water quality criteria to protect those uses. Id; 40 C.F.R. § 131.6.
States must then submit those standards to EPA for review and approval before they become
effective for purposes of the CWA. Id. The “EPA is given the final voice” in determining
whether a state’s water quality standards adequately meet the CWA’s requirements. Mississippi
Comm. on Natural Res. v. Costle, 625 F.3d 1269, 1276 (5th Cir. 1980).
The same is true for proposed revisions to a state’s water quality standards. 40 C.F.R. §
131.6(b). Each state must establish a continuing planning process (“CPP”) that governs, among
other things, the process for revising its water quality standards. 40 C.F.R. § 130.5(b)(6). The
CPP, once established, must be reviewed and approved by EPA to ensure consistency with the
CWA. 40 C.F.R. § 130.5(a). EPA’s oversight, however, does not stop with its approval of a
state’s CPP. EPA reviews each proposed revision to a state’s water quality standards submitted
pursuant to the state’s CPP. 40 C.F.R. § 131.5(a). This review process involves a determination
of five things, two of which are of particular importance in this case because EPA cited them as
justifications for its decision to decline EDCC’s Rulemaking: (1) whether the revision has
criteria that protects the designated uses of the state’s waters; and (2) whether the revised
standards are based upon appropriate technical and scientific data and analysis. Id.
EPA found that EDCC’s revised criteria was not adequately protective of aquatic life in
Flat and Hayne’s Creeks, a designated use of those waters. EPA also found that the mass-balance
equation used to derive EDCC’s criteria was scientifically indefensible because it failed to take
into account important information, such as stream flow conditions, results from properly
conducted toxicity tests, downstream water quality standards, facility design flow capacity, and
inputs from other point sources in the watershed. 9 EPA ultimately concluded that the weight of
the evidence counseled against approving EDCC’s Rulemaking for its failure to include relevant
sources of information—e.g. an EDCC study from 1991, and results from biological sampling
indicating impairment of biota in comparison to certain reference streams.
These findings are entitled to deference. Pursuant to this Court’s limited review under the
APA, the EPA decision must be upheld unless EDCC can show that these finding were arbitrary,
capricious, or inconsistent with the law.
EDCC argues that the decision is inconsistent with the law because it conflicts with the
CPP, a document EPA had previously approved. EDCC also argues that the Rulemaking was
arbitrarily denied because EPA had ulterior motives unrelated to the adequacy of the proposed
Rulemaking. Finally, EDCC contends that the decision was arbitrary because EPA rejected its
mass balance approach, an approach EPA has deemed acceptable and approved in numerous
Consistency of the EPA Decision with the CPP
EDCC claims that once EPA approved Arkansas’s CPP, it was required to follow it in
reviewing the proposed rulemaking. In other words, EDCC contends that the CPP carries with it
the force of law, and therefore, any EPA decision inconsistent with the CPP must be overturned.
EDCC argues that EPA’s decision runs counter to the CPP for three reasons. First, it
claims that the CPP does not permit consideration of data beyond the most recent five years,
which EPA did in this case. Second, it contends that EPA violated the CPP by considering
downstream impacts on bodies of water that were explicitly excluded by EDCC in its revised
Rulemaking. Third, it maintains that the “weight of the evidence” approach applied by EPA to
reject the Rulemaking is unprecedented. 10 EDCC argues that such an approach allowed EPA to
ignore certain evidence in the administrative record and rely instead on evidence not required by
EPA’s weight of the evidence approach included considerations beyond the bioassessments performed by EDCC
upstream and downstream of its point source. EPA also considered historical data, whole-effluent toxicity data for
Flat and Haynes Creeks, and other bioassessment data of UTA, UTB, and Flat Creek.
Through each of these arguments, EDCC indicates that a different outcome to the
Rulemaking may have been plausible. But EDCC fails to demonstrate that EPA’s decision was
indeed irrational. Assuming without deciding that the CPP is binding on EPA’s review of third
party rulemakings, it appears the EPA decision is in accord with the CPP in this instance.
a. EPA’s Consideration of Data Beyond the Most Recent Five Years
The state of Arkansas has developed an Administrative Guidance Document (“AGD”) to
address changes to water quality criteria for specific stream segments, like the Rulemaking in
this case. The AGD has been incorporated into the CPP. 11 This document requires that the party
seeking a Rulemaking demonstrate that the existing aquatic life uses will be maintained in all
relevant bodies of water. 12 The proponent of the Rulemaking must do so by submitting
bioassessments collected within the last five years. 13
In this case, EPA chose to consider data that was clearly outside of that five year period.
EPA’s Technical Support Document refers to data from studies as old as 1991. 14 EDCC argues
that those studies are outdated and therefore were improperly considered. This contention,
however, overlooks other important provisions in the AGD. The AGD also provides that
bioassessment activities may include: (1) historical data analysis; (2) whole effluent toxicity
testing; (3) benthic community sampling and analysis; and (4) fish collection analysis. 15
Therefore, any “outdated information” that EPA considered qualifies as historical data that the
AGD expressly contemplates. Accordingly, the fact that EPA chose to consider, and require
EDCC to supply, such data is not contrary to the CPP.
DORADO-000198 (emphasis added).
b. EPA’s Consideration of Downstream Impacts on Bodies of Water Excluded
from the Proposed Rulemaking
One of EPA’s primary justifications for not approving EDCC’s Rulemaking was the
impacts on the downstream waters of Flat and Haynes Creeks. EDCC argues that EPA violated
the CPP by considering those impacts because EDCC expressly excluded those two bodies from
the revised Rulemaking it submitted to EPA.
This contention is unpersuasive because the CPP does not limit EPA review to the
specific stream segments included in a proposed revision. The CPP expressly requires EDCC to
demonstrate that existing aquatic life uses will be maintained “upstream and downstream of the
point source.” 16 Flat and Haynes Creeks are both downstream of UTA and UTB, the stream
segments in EDCC’s revised Rulemaking. Therefore, EDCC could not avoid consideration of
those waters simply by rescinding them from its revised Rulemaking, and EPA did not act
arbitrarily in finding the revised criteria not adequately protective of those waters.
c. EPA’s Weight of the Evidence Approach
EDCC suggests that the weight of the evidence approach applied by EPA is inherently
arbitrary because it is not outlined in the CPP. EDCC also argues that it allowed EPA to overlook
important evidence in the administrative record. This argument is unavailing.
As a practical matter, it is important to recognize what the weight of the evidence
approach is. Put simply, it is EPA’s method for evaluating, and determining the impact of, all the
evidence in the administrative record. This method is essentially a scientific judgment that is
entitled to “an extreme degree of deference.” ATK Launch Systems, Inc., 669 F.3d at 336. In
view of that deference, the CPP at least implicitly anticipates a weight of the evidence approach
for reviewing proposed revisions to water quality criteria. The CPP calls for an evaluation of
bioassesstments upstream and downstream from the point source, historical data, whole effluent
toxicity testing, benthic community sampling and analysis, and fish collection and analysis.
Based on all of this data, EPA must determine whether existing aquatic life uses will be
maintained if the Rulemaking is approved. Making that determination based on the weight of the
evidence is certainly a rational approach to ensure consistency with the CWA.
After EPA considered EDCC’s bioassessment data indicating impairments to UTA, UTB,
and Flat Creek, historical data from a previous EDCC study, and whole-effluent toxicity data
indicating impairments to aquatic life in Flat and Haynes Creeks, it determined that the
Rulemaking was not adequately protective. The fact that there may have been some evidence in
the record pointing to a different conclusion does not render EPA’s decision arbitrary. EPA
sufficiently articulated its rationale to EDCC for applying this approach. It stated that the
approach was “necessary to show that the most sensitive uses are being protected by proposed
criteria, especially for minerals criteria where protective concentrations can differ greatly from
one geographic location to the next….” 17 Indeed, the CWA requires that EPA ensure the support
of the water’s most sensitive uses. 40 C.F.R. § 131.11(a)(1). Accordingly, the Court cannot
substitute its own judgment for EPA’s with respect to this finding.
The Motives Driving EPA Decision
EDCC next contends that EPA’s decision is arbitrary because it was derived from
improper motives. EDCC, along with several other companies in El Dorado, Arkansas, is a party
to an agreement that contemplates the discharge of its wastewater through a newly constructed
pipeline. This pipeline project, however, is not yet completed. EDCC claims that its proposed
Rulemaking was denied solely as a means to ensure EDCC’s participation in the pipeline project,
despite the fact that it has already committed to doing so. EDCC’s belief that EPA possessed this
ulterior motive stems from an email sent by EPA during the approval process stating “I have
concern about approving the rulemaking change when it appears the facilities’ ultimate goal is to
discharge via the pipeline.” 18 EDCC argues that EPA was simply worried that EDCC might
withdraw its support for the pipeline if the Rulemaking was approved, and thus, the basis for
denying the Rulemaking was arbitrary.
As an initial matter, the comment by EPA expressing concern about EDCC’s
participation in the pipeline project does not, on its face, indicate that the unfinished pipeline was
the sole motive for EPA’s decision. Perhaps there is substantial evidence of such an improper
motive if the Court were to look outside of the administrative record, but pursuant to the APA,
the Court is not permitted to do so. Florida Power & Light co. v. Lorion, 470 U.S. 729, 743-44
Furthermore, the Eighth Circuit has spoken directly on this issue. Voyageurs Nat. Park
Ass’n v. Norton, 381 F.3d 759, 766 (8th Cir. 2004). “Inquiry into the mental processes of
administrative decisionmakers is to be avoided unless it is ‘the only way there can be effective
judicial review.’” Id. (internal citations omitted). In this case, consideration of EPA’s mental
impressions related to the pipeline is unnecessary because the agency has sufficiently articulated
a legitimate rationale for its decision. In its Technical Support Document, EPA detailed several
reasons for its decision unrelated to the pipeline, such as the aquatic life impacts in Flat and
Hayne’s Creeks. Therefore, any ulterior motive that EPA may have possessed cannot be
considered based on the record before the Court.
Scientific Defensibility of EDCC’s Mass Balance Approach
Finally, EDCC takes issue with the fact that EPA rejected its “mass balance” approach
for developing the criteria of the proposed Rulemaking. EPA found that EDCC’s approach was
ECF No. 23; DORADO-001616.
not scientifically defensible. EDCC claims that such a conclusion (a) contradicts numerous past
EPA decisions that have rendered the mass balance approach scientifically acceptable in other
third party rulemakings; and (b) ignores the fact that the CPP prescribes the mass balance
approach as a method for supporting a revision to water quality criteria.
The Court’s review of the CPP does not reveal any such requirement that requests for
revisions be supported specifically by a mass balance approach. Therefore, the only remaining
issue is whether EPA’s prior rulings—finding the mass balance approach scientifically
acceptable—are relevant in this case. The short answer is they are not.
An administrator is “free to adopt a new position if she [chooses], so long as she
explain[s] the decision and it [is] not arbitrary or capricious.” Florida Wildlife Federation, Inc. v.
Jackson, 853. F.Supp. 2d 1138, 1158 (S.D. Fla. 2012) (citing FCC v. Fox, 556 U.S. 502 (2009)).
As noted above, EPA has done that here. EPA has made clear that each request to revise water
quality standards is based on the site specific data for that particular area because each
geographic area is different. 19 In this instance, EPA found that EDCC’s mass balance approach
was insufficient, by itself, to protect the particular area in question, i.e. the designed uses of
UTA, UTB, and Flat and Haynes Creeks. Furthermore, if EPA were bound by its prior approvals
in other third party rulemakings, its obligation to ensure compliance with the CWA would be
substantially undermined. See Mississippi Comm. on Natural Res. v. Costle, 625 F.3d 1269, 1277
(5th Cir. 1980). Accordingly, EPA’s rejection of EDCC’s mass balance approach was not
arbitrary, capricious, or inconsistent with the law.
For the reasons discussed above, the Court finds that Plaintiff El Dorado Chemical
Company’s Motion for Summary Judgment (ECF No. 21) should be and hereby is DENIED.
Defendants United States Environmental Protection Agency, Lisa P. Jackson, and Al
Armendarez’s Cross Motion for Summary Judgment (ECF No. 40) is GRANTED. A Judgment
consistent with this opinion of shall issue. EPA’s decision is AFFIRMED.
IT IS SO ORDERED, this 25th day of March, 2013.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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