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Virginia Elec. & Power Co. v. EPA

Citation: 10 ELR 20051
No. No. 79-1308, 610 F.2d 187/(4th Cir., 12/04/1979)

The court dismisses as premature petitions for review of the Environmental Protection Agency's (EPA's) revised national pollutant discharge elimination system (NPDES) regulations issued under the Clean Water Act. The petitions were filed before the date and time at which EPA specified the regulations were to be considered effective for purposes of judicial review. The court rejects the contention that EPA's specification of 1:00 p.m. eastern time seven days after publication of the rules in the Federal Register as the "trigger" for judicial review was impermissible because the specified date and time is not based on any physical action by the Agency. Reading § 509(b) of the Act, which provides for judicial review of "the Administrator's action" in promulgating regulations as speaking only to the signing of the rules, their announcement, or their delivery to or publication in the Federal Register is to exalt form over substance. The triggering device specified by EPA in this case was a reasonable effort to avoid some of the adverse features of the "race to the courthouse" pursuant to 28 U.S.C. § 2112, and was a valid exercise of the Agency's statutory powers. The court emphasizes that the regulations were exposed to judicial review prior to the time at which they were to become effective for substantive purposes.

Counsel for Petitioners
Turner T. Smith
Hunton & Williams
707 E. Main St., Richmond VA 23212
(804) 788-8200

Counsel for Respondents
Richard G. Stoll, Jr.
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511