443 F.3d 12 (1st Cir. 2006), 05-2231, Dominion Energy Brayton Point, LLC v. Johnson

Docket Nº:05-2231.
Citation:443 F.3d 12
Party Name:DOMINION ENERGY BRAYTON POINT, LLC, Plaintiff, Appellant, v. Stephen L. JOHNSON, In His Capacity as Administrator of the United States Environmental Protection Agency, et al., Defendants, Appellees.
Case Date:March 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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443 F.3d 12 (1st Cir. 2006)



Stephen L. JOHNSON, In His Capacity as Administrator of the United States Environmental Protection Agency, et al., Defendants, Appellees.

No. 05-2231.

United States Court of Appeals, First Circuit.

March 30, 2006

Heard Jan. 13, 2006.


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John M. Stevens, with whom Wendy B. Jacobs, Elisabeth M. DeLisle, and Foley Hoag LLP were on brief, for appellant.

Kristen L. Gustafson, Attorney, Environment and Natural Resources Division, United States Department of Justice, with whom Matthew J. McKeown, Deputy Assistant Attorney General, Greer Goldman and John Bryson, Attorneys, were on brief, for appellees.

Before SELYA, LIPEZ and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

USGen New England, Inc., now Dominion Energy Brayton Point, LLC (Dominion), filed suit against the U.S. Environmental Protection Agency, its administrator, and its regional office (collectively, the EPA), alleging that the EPA failed to perform a non-discretionary duty when it refused to grant Dominion's request for a formal evidentiary hearing after issuing a proposed final National Pollution Discharge Elimination System (NPDES) permit. The district court dismissed the case for want of subject matter jurisdiction. On appeal, the central question presented concerns the effect of this court's decision in Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978), in light of the Supreme Court's subsequent decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Concluding, as we do, that Seacoast does not control, we affirm the judgment below.


Dominion owns an electrical generating facility in Somerset, Massachusetts (the station). The station opened in the 1960s and, like most power plants of its era, utilizes an "open-cycle" cooling system. Specifically, the station withdraws water from the Lees and Taunton Rivers, circulates that water through the plant's generating equipment as a coolant, and then discharges the water (which, by then, has attained an elevated temperature) into Mount Hope Bay.

The withdrawals and discharges of water are regulated by the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. For the last three decades, these actions have been authorized by a series of NPDES permits issued by the EPA pursuant to section 402(a) of the CWA. See id. § 1342(a). The standards incorporated into those permits are determined under the thermal variance procedures laid out in section 316(a). See id. § 1326(a).

In 1998, the station applied for renewal of its NPDES permit and thermal variance authorization. The EPA issued a proposed final permit on October 6, 2003, in

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which it rejected the requested thermal variance. On November 4, Dominion sought review before the Environmental Appeals Board (the Board), see 40 C.F.R. § 124.19(a) (authorizing Board review), and asked for an evidentiary hearing. The Board accepted the petition for review but declined to convene an evidentiary hearing. See In re USGen New Eng., Inc. Brayton Point Station, 11 E.A.D. 525, 525 (EAB July 23, 2004).

On August 11, 2004, Dominion notified the EPA of its intent to file a citizen's suit under section 505(a)(2) of the CWA, 33 U.S.C. § 1365(a)(2), to compel the Board to hold an evidentiary hearing. Receiving no reply, Dominion proceeded to file its complaint in the United States District Court for the District of Massachusetts. The EPA moved to dismiss.

The district court granted the motion on jurisdictional grounds. See Fed.R.Civ.P. 12(b)(1). In a bench decision, it concluded that it was without subject matter jurisdiction because the suit, though billed as a citizen's suit, constituted a direct challenge to the EPA's hearing rule and, thus, came within the exclusive jurisdiction of the circuit court under 33 U.S.C. § 1369(b)(1)(E). This timely appeal followed.1


We set the stage for our substantive discussion by undertaking a brief review of the legal rules that frame the controversy at hand.

Before the EPA either issues an NPDES permit or authorizes a thermal variance, 2 it must offer an "opportunity for public hearing." 33 U.S.C. §§ 1326(a), 1342(a). No definition of "public hearing" is contained within the four corners of the CWA.

The Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., is also part of the relevant legal landscape. Most pertinent here are those sections that combine to describe the procedures for formal administrative adjudications. See id. §§ 554, 556, 557. These procedures apply "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing." Id. § 554(a). The APA does not directly address whether these procedures apply when a statute simply calls for an "opportunity for public hearing" without any specific indication that the hearing should be "on the record."

In Seacoast, this court interpreted "public hearing" (as used in sections 402(a) and 316(a) of the CWA) to mean "evidentiary hearing" -- in other words, a hearing that comports with the APA's requirements for a formal adjudication. 572 F.2d at 878. Examining the legislative history of the APA, we adopted a presumption that "unless a statute otherwise specifies, an adjudicatory hearing subject to judicial review must be [an evidentiary hearing] on the record." Id. at 877. Applying that presumption to the CWA, we concluded that "the statute certainly does not...

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