American Petroleum Institute v. Train

No. 74-F-864 (D. Colo. April 8, 1975)

The court dismisses, for lack of jurisdiction, a suit challenging the validity of EPA's guidelines and standards for the petroleum refining point source category promulgated pursuant to the Federal Water Pollution Control Act Amendments of 1972.Plaintiffs' motion for additional discovery is denied since it relates more to the mertis of the action than to the jurisdictional question. The effluent guidelines and standards were issued under § 301 as well as § 304 of the FWPCA, and review of these regulations thus lies exclusively in the Circuit Court of Appeals under § 509(b). Section 5 of the Administrative Procedure Act does not provide an alternative basis for district court jurisdiction, since by its terms it is limited to those situations where review is not provided by statute.

Counsel for Plaintiffs
Frank M. Morison
Robert E. Benson
Holland & Hart
500 Equitable Building
730 17th Street
Denver, Colo. 80202

Counsel for Defendants
James L. Treece U.S. Attorney
U.S. Courthouse
Denver, Colo. 80202

[5 ELR 20298]

Finesilver, J.

ORDER

Granting Defendants' Motion to Dismiss

THIS MATTER comes before the Court on Defendants' Motion to Dismiss and Plaintiffs' Motion to Defer Consideration of Defendants' Motion to Dismiss Until Jurisdictional Discovery is Completed. We hold that this action should be dismissed.

Plaintiffs bring this action challenging the validity of the "Effluent Guidelines and Standards" for the "Petroleum Refining Point Source Category" promulgated by the Environmental Protection Agency (EPA) on May 9, 1974, 39 Fed. Reg. 16560, 40 C.F.R. § 419 et. seq. These guidelines and standards were issued pursuant to the Federal Water Pollution Control Act (the Act), 33 U.S.C.A. § 1251 et. seq. (as amended 1972).

Plaintiffs allege that in issuing the regulations the EPA violated various provisions of the Act and violated the intent of Congress that water quality guidelines be determined for existing petroleum plants on an individual plant-by-plant basis in conjunction with the permit procedure outlined in § 402 of the Act, 33 U.S.C.A. § 1342. Plaintiffs seek to have the regulations declared invalid and pray that the Administrator of EPA (Administrator) be directed to issue new guidelines in accordance with the Act.

Defendants move to dismiss the complaint for lack of subject matter jurisdiction in this court. Defendants rely primarily on § 509(b) of the Act, 33 U.S.C.A. § 1369(b), which provides that a person aggrieved by the Administrator's actions under certain provisions of the Act may obtain judicial review of those particular actions in the United States Circuit Court of Appeals wherein the party resides or transacts business.

We are persuaded by defendants' interpretation of the Act and the Regulations. In our view consideration of the issues raised in this action is properly limited to an action in the appropriate United States Court of Appeals under § 509(b) of the Act.

Section 509(b)(1)(E) of the Act, 33 U.S.C.A. § 1369(b)(1)(E), states:

(b)(1) Review of the Administrator's action. . . . (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title, . . . [5 ELR 20299] may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person.

Section 1311 of Title 33 (§ 301 of the Act) provides that effluent limitations for various point sources shall be achieved by July 1, 1977 (which shall require the application of the best practicable control technology currently available) and July 1, 1983 (which shall require application of the best available technolgy economically achievable). Administrative action under this provision is expressly included within § 509(b) providing for judicial review in the United States Courts of Appeals. Section 1314(b) of Title 33 (§ 304(b) of the Act) requires the Administrator to provide effluent limitations guidelines for the purpose of adopting or revising effluent limitations issued under § 301 and other sections of the Act. Section 1314 is not included in § 509(b) in regard to review in the United States Courts of Appeal.

Therefore, a pivotal issue in consideration of the instant motion is whether the challenged "Effluent Guidelines and Standards" issued by the EPA were simply guidelines issued pursuant to § 304(b)(1) and (2) or were actual effluent limitations established pursuant to § 301 — review of which is to be obtained in the United States Courts of Appeals under § 509(b).

II.

Defendants argue that the EPA issued the challenged regulations for the purpose of fulfilling both § 304 (as guidelines) and § 301 (as actual effluent limitations).¹ Defendants contend that since the regulations here questioned were promulgated pursuant to § 301, judicial review of the validity of these regulations is limited to a proceeding in the appropriate United States Court of Appeals under § 509(b). Defendants thus maintain that this court does not have subject matter jurisdiction of this action.

In opposing defendants' Motion to Dismiss, plaintiffs move the court to stay consideration of the motion to dismiss until jurisdictional discovery is completed. Plaintiffs contend that they should be allowed discovery on the issues of the authority and intent of the Administrator in promulgating the regulations in question particularly as to the process by which policy decisions were made in regard to EPA's interpretation of the provisions of the Act. Plaintiffs argue that this discovery is necessary in order to resolve the jurisdictional question presented by defendants' motion. Plaintiffs state that their interrogatories #5-10 relate to this jurisdictional dispute.

In addition, plaintiffs argue that the Administrator violated the Act by purporting to issue both § 304 guidelines and § 301 limitations in one set of regulations which apply across the board to all existing petroleum refining plants. Plaintiffs point out that the EPA indicated that it would establish effluent limitatons for existing plants on a plant-by-plant basis under § 301 after issuing the separate guidelines called for by § 304 which would serve only as references for the states and the Administrator. Plaintiffs concede that EPA intended to issue these regulations under § 301: however they are challenging the authority under which this was done and the final effect of these regulations.² Plaintiffs argue that discovery relating to these policy decisions in regard to the Administrator's authority for the regulations should be completed before the motion to dismiss is considered.

Plaintiffs second major argument in opposition to the motion is that Congress did not specify that the review provided for in § 509(b) in the United States Courts of Appeals is exclusive. Plaintiffs contend that the Administrator's action in issuing the regulations is reviewable in the United States District Courts under the Administrative Procedure Act, 5 U.S.C.A. § 555 et seq., as well as by the method provided in the statute.

III.

We conclude that plaintiffs' arguments as to the validity of the Administrator's authority and action in issuing the regulations under certain sections of the Act relate more properly to the merits of the action, i.e., the validity of the regulations, rather than the jurisdictional question under consideration here.

We agree with plaintiffs' assertions that discovery should be liberally granted and may be had for jurisdictional purposes; however, we conclude that the discovery sought by plaintiffs would not serve to clarify the basic jurisdictional issue here. Plaintiffs' alleged jurisdictional discovery relates primarily to the Administrator's interpretation of the Act and EPA's authority in effectuating its provisions and issuing the challenged regulations.³ We do not believe these inquiries would be helpful to the determination of the jurisdictional question raised by defendants' motion. The discovery sought relates to the merits of the action. Thus we deny plaintiffs' motion for additional discovery and proceed to determine the jurisdictional question.

IV.

In our view the issues presented in this case are properly considered in an action in the appropriate United States Court of Appeals pursuant to § 509(b) of the Act. While plaintiffs may have a legitimate argument as to the proper interpretation to be given to the Act and portions of it which are unclear, we believe this argument relates to the validity of the regulations which should be addressed in the Court of Appeals. Even should the Administrator have interpreted his authority under the Act incorrectly, the fact remains that he has issued the challenged regulations and limitations under § 301 as well as § 304, and review of his actions in this regard should be had in a United States Court of Appeals as provided by the statute (§ 509(b)). While the issuance of guidelines under § 304 is not an action specified in § 509(b) for review in the appellate courts, in this situation the regulations were issued under both §§ 301 and 304, and we conclude that a challenge to these regulations should be heard in one action in a United States Court of Appeals.⁴ See E.I. Dupont De Nemours and Co., et al. v. Train, et al., Civ. No. 74-57 (W.D. Va. Sept. 27, 1974); American Paper Institute v. Train, Civ. No. 74-814 (D. D.C. Sept. 20, 1974).

While § 509(b) does not state clearly that jurisdiction in the United States Courts of Appeals is exclusive, we conclude that the better view is that jurisdiction over actions specified therein is limited to the appellate courts. Our judicial system does not encourage the duplicity of actions which might result if we were to hold otherwise. As the Supreme Court stated recently:

A frequently stated principle of statutory construction is that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. "When a statute limits a thing to be done in a particular mode, it includes the negative or any other mode." Botany Mills v. United States, 278 U.S. 282, 289 (1929). National Railroad Passenger Corporation v. National Association of Railroad Passengers, 414 U.S. 453, 458 (1974).

See Whitney National Bank v. Bank of New Orleans, 379 U.S. 411 (1965); Nader v. Volpe, 466 F.2d 261, 266-67 (D.C. Cir. 1972).

Plaintiffs cite National Resources Defense Council Inc. v. Russell Train, Civ. No. 74-1433 (D.C. Cir. Dec. 5, 1974), in support of their position that the circuit court review provided for in § 509(b) is not exclusive. However, that case dealt with § 505 of the Act, 33 U.S.C.A. § 1365, which authorizes certain citizen suits against the Administrator. Section 505 contains a clause which specifically reserves to citizens all existing judicial rights; the Court interpreted that clause to leave intact any citizen's rights under the Administrative Procedure Act. Section 509 does not contain such a clause, and we conclude that the cited case is inapplicable to the issue of judicial review under § 509.

[5 ELR 20300]

We further note that the Administrative Procedure Act in providing for judicial review of agency actions specifically limits its coverage to those situations where review is not provided by statute:

The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute, or in the absence or inadequacy therof, any applicable form of legal action . . . . Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement. 5 U.S.C.A. § 703. [emphasis supplied].

The statute involved in this action specifies the judicial forum for review of administrative actions taken under § 301. In our view, the avenue of relief provided by statute must be followed in this case, and review of the challenged regulations must be had in a United States Court of Appeals. We conclude that this court lacks subject matter jurisdiction over this action.

Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss is GRANTED. The complaint and action in this matter are DISMISSED.

IT IS FURTHER ORDERED that Plaintiffs' Motion to Defer Consideratin of Defendants' Motion to Dismiss Until Jurisdictional Discovery is Completed is DENIED.

APPENDIX

Plaintiffs' interrogatories #5-10 seek information regarding the Administrator's statutory authority and intent in issuing the challenged regulations.

Interrogatory #5 seeks information concerning a 1973 memorandum published by the EPA Office of Permit Programs and a memorandum of February 28, 1973 issued by the Deputy Administrator of EPA which discuss effluent guidance documents. Plaintiffs contend that these documents were initial efforts of the EPA to implement the Act reflecting EPA's original interpretation of the Act.

Interrogatories #6 and #7 seek information concerning an alleged change in policy by the EPA by which the Administrator decided to issue the petroleum regulations under § 301 of the Act as well as under § 304(b). Plaintiffs seek to discover who made this policy decision and any documents which relate to it.

Interrogatory #8 seeks background information concerning EPA's interpretations of those portions of the Act relating to courts in which review of § 304(b) guidelines may be obtained; the procedures for developing § 304(b) guidelines; the relationship of the establishment of effluent limitations to § 304 guidelines; the manner in which effluent limitations are to be established; the form of effluent limitations; and the application of § 509(b).

Interrogatory #9 asks for identification of all limitations which are to be "approved" by the Administrator under § 301 of the Act.

Interrogatory #10 seeks disclosure of the identity of the persons who prepared drafts of the challenged regulations.

1. The regulations themselves as published in the Federal Register and the Code of Federal Regulations contain the statement that they are promulgated pursuant to §§ 301, 304(b) and (c), 306(b) and (c), and 307(c) of the Federal Water Pollution Control Act. 39 Fed. Reg. 16560 (May 9, 1974); 40 C.F.R. § 401 (1974).

2. We note that if, in fact, these regulations are simply guidelines issued under § 304, plaintiffs might not have standing to challenge them as they would only be aids in determining limitations, not binding limitations. American Paper Institute v. Train, Civ. No. 74-814 (D. D.C. Sept. 20, 1974).

3. The specific information sought by plaintiffs in their interrogatories is discussed in the Appendix to this order.

4. We note that plaintiffs have filed a similar action in the United States Court of Appeals for the Tenth Circuit so as to protect that avenue of relief. We believe all of plaintiffs' rights and arguments in regard to the question of the validity of the regulations and the Administrator's authority in issuing them will be properly protected and appropriately reviewed in that court.