Sierra Club v. Train

No. 76-1026 (D.D.C. December 15, 1976)

The court dismisses for lack of jurisdiction a citizen suit challenging the Environmental Protection Agency (EPA) Administrator's exemption of facilities located in the Mahoning River Valley from the effluent limitations for Phase II of the Iron and Steel Manufacturing Point Source category. The Administrator's action in granting the Mahoning Valley exemption is so interwoven with the Phase II regulations that it constitutes action "approving or promulgating . . . effluent limitation[s] . . . under section 301" and is thus subject to review in the appropriate court of appeals under § 509 of the Federal Water Pollution Control Act (FWPCA) Amendments of 1972. Although it cannot reasonably be contended that the exemption may also be characterized under § 505 as a failure by the Administrator to perform a non-discretionary duty, the court concludes that it need not resolve the issue. The relevant case law emphasizes that bifurcated judicial review under the FWPCA is strongly disfavored, and indicates that the presence of jurisdiction in the court of appeals under § 509 necessarily precludes § 505 jurisdiction in the district court.

Counsel for Plaintiff
Ronald J. Wilson
810 18th St., NW
Washington DC 20006
(202) 628-3160

Jerome S. Kalur
Weston, Hurd, Fallon, Sullivan & Paisley
2500 Terminal Tower
Cleveland OH 44113
(216) 241-6602

John D. Hoffman
Sierra Club Legal Defense Fund
311 California St.
San Francisco CA 94104
(415) 398-1411

Counsel for Defendant
Raymond W. Mushal
Pollution Control Section
Department of Justice
Washington DC 20530
(202) 737-8200

Barry L. Malter
Office of the General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-2500

[7 ELR 20120]

Corcoran, J.:

[7 ELR 20121]

MEMORANDUM AND ORDER

On March 29, 1976, pursuant to provisions of the Federal Water Pollution Control Act [FWPCA], 33 U.S.C. §§ 1251 et seq., the Environmental Protection Agency [EPA] published effluent limitations and guidelines relating to Phase II of the Iron and Steel Manufacturing Point Source category. 41 Fed.Reg. 12990 et seq. Certain sections of those regulations state that effluent limitations specified therein do not apply to iron and steel facilities located in the Mahoning River Valley of eastern Ohio. See 40 C.F.R. §§ 420.132(d), 420.142(b), 420.152(d), 420.162(b), 420.172(e); 41 Fed. Reg. 13005-13008.¹

On April 1, 1976, the Sierra Club, a national conservation organization, served upon the EPA notification of its intention to file a civil action contesting the Agency's decision to exclude the Mahoning Valley from application of its Phase II effluent limitations and guidelines. See 33 U.S.C. § 1365(b)(2).

On June 10, 1976, the Sierra Club commenced the present litigation against Russell E. Train, Administrator of EPA, pursuant to § 505(a)(2) of the FWPCA, 33 U.S.C. § 1365(a)(2).² The complaint requests a declaratory judgment holding the Mahoning Valley exemption unlawful, and further relief in the nature of mandamus directing the Administrator, by a date certain, to promulgate effluent limitations for the Mahoning Valley iron and steel plants which are "as uniform as possible" with limitations applicable to other point sources within the same category.

One day later, to wit on June 11, 1976, Sierra Club filed a petition in the United States Court of Appeals for the Third Circuit. That petition seeks review of the same regulations at issue in the complaint filed June 10, 1976 in this court. Sierra Club v. EPA, et al., No. 76-1749.³ The jurisdictional basis of Sierra Club's appellate petition is § 509(b)(1) of the FWPCA, 33 U.S.C. § 1369(b)(1).⁴

Plaintiff has moved in this court for summary judgment and the Administrator has filed a motion to dismiss the Sierra Club's complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction over the subject matter.

As previously mentioned, the Sierra Club has invoked the jurisdiction of this court pursuant to § 505(a) of the FWPCA, 33 U.S.C. § 1365(a), which provides, in pertinent part, as follows:

Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf. . . .

(2) against the Administrator where there is alleged a failure by the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.

The district courts shall have jurisdiction without regard to the amount in controversy or the citizenship of the parties . . . to order the Administrator to perform such act or duty, as the case may be. . . .

The Sierra Club asserts that the present case is brought within the purview of § 505(a)(2) by reason of the Administrator's failure to perform two non-discretionary acts or duties under the FWPCA, i.e., it alleges that the Administrator has failed (a) to establish and apply effluent limitations to be achieved by July 1, 1977, based upon the "best practicable control technology currently available" to point sources of discharge in the Mahoning Valley; and (b) to promulgate "guidelines," within the statutory meaning of that term, for application of such effluent limitations to the Mahoning Valley plants. These alleged omissions, according to plaintiff, are in contravention of the Administrator's responsibilities under § 301(e) of the FWPCA, 33 U.S.C. § 1311(e), which requires that:

Effluent limitations established pursuant to this section [301] or Section 302 of this Act shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this Act. (Emphasis supplied).

In support of his motion to dismiss, the Administrator contends that jurisdiction to review the EPA's determination to exempt Mahoning Valley facilities from the Phase II effluent limitations and guidelines lies exclusively in the appropriate court of appeals under § 509 of the FWPCA, 33 U.S.C. § 1369. Section 509 states, in pertinent part, that:

(b)(1) Review of the Administrator's action . . . (E) in approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306, . . . 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. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day.

The question before the court, therefore, is whether this action may be properly maintained in the district court under § 505 of the FWPCA as a suit in which there is alleged a failure by the Administrator to perform a nondiscretionary act or duty, or, by corollary, whether jurisdiction over the subject matter of the instant complaint lies in the appropriate court of appeals pursuant to § 509 of the FWPCA as a suit seeking review of the action of the Administrator in approving or promulgating effluent limitations under § 301.

For reasons discussed below, we are of the opinion that exclusive jurisdiction over Sierra Club's action lies in the court of appeals.

III

While the Sierra Club may, and indeed does contest the manner in which the Administrator has elected to exempt iron and steel facilities in the Mahoning Valley from application of the Phase II effluent limitations, it cannot reasonably be argued that the Administrator has failed "to perform any act . . . under [the] Act which is not discretionary with the Administrator," within the meaning of § 505(a)(2), supra, which would justify invocation of the jurisdiction of the district court.

The preamble to the Phase II regulations reflects that the decision to exempt Mahoning Valley point sources from otherwise applicable limitations was made only after an exhaustive study of "detailed, cost and financial information' submitted by interested companies, as well as data supplied by officials of state, county and municipal governments and regional planning and economic development agencies. See 41 Fed. Reg. 12994-95. That analysis, which consumed almost two years and approximately 4,200 pages of administrative record, resulted in a conclusion by the Administrator that:

. . . the imposition of national effluent limitations to facilities in the Mahoning Valley which share region-specific economic disadvantages appears likely to lead to plant closings, [7 ELR 20122] the effect of which would be heavy unemployment and severe economic dislocation in this multi-community region. . . .

The relief granted from severe economic impact in the Mahoning River Valley region, which impact is likely to occur absent such, relief, is the exemption of point sources located within that region from the effluent limitations based on best practicable control technology currently available. Nevertheless, the Agency fully expects that authorities granting permits, pursuant to section 402 of the Federal Water Pollution Control Act, as amended, shall not allow point sources in that region to discharge pollutants in any greater amounts than are currently being discharged by those sources.

41 Fed. Reg. 12995.

Of equal significance in this context is our reading of the Phase II regulations as a whole, which supports the Administrator's representation, through counsel, that the Mahoning Valley exemption is so interwoven with the fabric of the limitations and guidelines as to be an integral part of them.

For the above stated reasons, we think it clear that the contested exemption, which defines the scope of the Phase II regulations, constitutes "action" of the Administrator "in approving or promulgating . . . effluent limitation[s] . . . under section 301" of the FWPCA, and is as much a part of the Phase II regulations as any of their substantive provisions. See City of Highland Park v. Train, 519 F.2d 681, 688-89 [5 ELR 20408] (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976). Consequently, the court is of the opinion that the Sierra Club's action may be maintained in the appropriate circuit court of appeals under § 509 of the FWPCA.

Having concluded that original jurisdiction exists in the appellate courts, it becomes unnecessary to reach the second jurisdictional test under § 505, i.e., whether the challenged exemption may be characterized as "a failure by the Administrator to perform . . . [a] duty under [the] Act which is not discretionary . . ;" in order to determine whether Sierra Club's case, nevertheless, may be maintained in the district court. This is so because bifurcation of jurisdiction between the district courts and the courts of appeals is "not only inconvenient, it is clearly undesirable," and strongly disfavored. See Foti v. I & NS, 375 U.S. 217 (1963); Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 660 [5 ELR 20481] (D.C. Cir. 1975); see also Jaffe, Judicial Control of Administrative Action 422 (1965). Absent some clear indication of legislative policy to the contrary, such jurisdictional duplicity cannot be lightly inferred.

In this regard, we note that although there is a paucity of legislative history pertaining to the interrelation between judicial review provisions of §§ 505 and 509 of the FWPCA, it remains "highly significant that the committee reports make no mention of any division of judicial review" between the district and appellate courts. See E.I. DuPont de Nemours & Co. v. Train, 528 F.2d 1136, 1141 [6 ELR 20117] (4th Cir. 1975), cert. granted, 44 L.W. 3592 (U.S. Apr. 19, 1976).

In a recent decision which directly involved the same judicial review provisions of the FWPCA at issue in the present case, E.I. DuPont de Nemours & Co. v. Train, supra, the Court of Appeals for the Fourth Circuit made the following observations:

In the House Report discussing judicial review, it was noted that "with the number and complexity of administrative determinations that the legislation requires there is a need to establish a clear and orderly process for judicial review." Although the House Bill originally provided for review in the district courts, this report indicates that Congress did not intend for actions of the Administrator to be subjected to the complexities inherent in a system of review divided between different courts. Rather, it appears to have been its desire that administrative actions be reviewable, but in a manner not likely to impede enforcement unduly.

528 F.2d at 1114-42 (citations omitted).

Based upon the language of §§ 505 and 509 and its evaluation of the fragmentary evidence of congressional intent, the court in DuPont concluded that the presence of jurisdiction in the courts of appeals under § 509 is necessarily preclusive of § 505 jurisdiction in the district court. We find the reasoning of the Fourth Circuit to be persuasive; and this court is in agreement with the conclusion reached in DuPont.

Accordingly, since § 509 jurisdiction appears to exist in the appropriate court of appeals, this court is without subject matter jurisdiction over the Sierra Club's complaint.

On the basis of the foregoing, it is, by the court, this 15th day of December, 1976,

ORDERED that defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) should be, and the same is hereby, granted.

1. Each of the above-cited subsections reads as follows:

The limitations set forth above in this section shall not apply to any operation located in the Mahoning Valley which would otherwise be subject to the provisions of this section.

The Mahoning Valley is defined as "the watershed drained by the Mahoning River upstream of the Ohio-Pennsylvania border." See 40 C.F.R. § 420.131(c); 41 Fed. Reg. 13005.

2. Paragraph 2 of the Sierra Club complaint further premises district court jurisdiction upon the Federal Question statute, 28 U.S.C. § 1331(a); the Administrative Procedure Act, 5 U.S.C. § 706; the Mandamus statute, 28 U.S.C. § 1361; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

3. Four other petitions for the review of the March 29th Phase II regulations have been filed in the Third Circuit, American Iron and Steel Institute v. EPA, Nos. 73-1322 and 76-1386; Commonwealth of Pennsylvania v. EPA, No. 76-1751; Allegheny-Ludlum Industries, Inc. v. Train, No. 76-1757.The Court of Appeals for the Third Circuit has recently consolidated the Pennsylvania, Sierra Club, and Allegheny-Ludlum cases with the second American Iron and Steel Institute petition (i.e., No. 76-1386). Two petitions for review of the regulations which were filed in other circuits, Youngstown Sheet and Tube Co. v. Train (6th Cir., No. 76-1745), and CF&I Steel Corp. v. EPA (10th Cir., No. 76-1534), have been transferred to the Third Circuit where the government has requested consolidation with No. 76-1386.

The American Iron and Steel Institute, CF&I, and Allegheny-Ludlum petitions seek review of certain technical regulations. Pennsylvania challenges the Mahoning Valley exemption; and Youngstown Sheet and Tube Co.'s case contests technical regulations while supporting the Mahoning Valley exemption.

4. We note, in fairness to the plaintiff, that Sierra Club's petition for appellate review was filed to preserve its rights under § 509 of the FWPCA in the event that this court ruled against plaintiff on the § 505 jurisdictional question since failure to file a § 509 petition in the appropriate court of appeals within 90 days of the action complained of (with an exception not material here) is a jurisdictional bar. See Peabody Coal Co. v. Train, 518 F.2d 940, 942-43 [5 ELR 20501] (6th Cir. 1975).