566 F.2d 446 (4th Cir. 1977), 76-2081, Virginia Elec. & Power Co. v. Costle

Docket Nº:76-2081.
Citation:566 F.2d 446
Party Name:VIRGINIA ELECTRIC AND POWER COMPANY, Appalachian Power Company, Baltimore Gas and Electric Company, Carolina Power & Light Company, Duke Power Company, Monongahela Power Company, Potomac Edison Company, Potomac Electric Power Company, South Carolina Electric & Gas Company, West Penn Power Company, Indiana & Michigan Electric Company, Kentucky Power
Case Date:November 11, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 446

566 F.2d 446 (4th Cir. 1977)

VIRGINIA ELECTRIC AND POWER COMPANY, Appalachian Power

Company, Baltimore Gas and Electric Company, Carolina Power

& Light Company, Duke Power Company, Monongahela Power

Company, Potomac Edison Company, Potomac Electric Power

Company, South Carolina Electric & Gas Company, West Penn

Power Company, Indiana & Michigan Electric Company, Kentucky

Power Company, Ohio Power Company, Boston Edison Company,

Cincinnati Gas & Electric Company, Cleveland Electric

Illuminating Company, Columbus & Southern Ohio Electric

Company, Commonwealth Edison Company, Consolidated Edison

Company of New York, Inc., the Dayton Power and Light

Company, the Detroit Edison Company, Florida Power & Light

Company, Houston Lighting & Power Company, Illinois Power

Company, Long Island Lighting Company, Arkansas-Missouri

Power Company, Arkansas Power & Light Company, Mississippi

Power & Light Company, Louisiana Power & Light Company, New

Orleans Public Service, Inc., Middle South Utilities, Inc.,

Montaup Electric CoVSv.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, and the United States

Environmental Protection Agency, Appellees.

No. 76-2081.

United States Court of Appeals, Fourth Circuit

November 11, 1977

Argued March 17, 1977.

Page 447

George C. Freeman, Jr., Richmond, Va. (Henry V. Nickel, Michael B. Barr, Washington, D. C., Hunton & Williams, Richmond, Va., on brief), for appellants.

James T. Harrington, Chicago, Ill., for U. S. Steel Corp.

Thomas A. Larsen, Atty., Environmental Protection Agency, Washington, D. C., Sarah Chasis, New York City, for Natural Resources Defense Council, Inc.

Peter R. Taft, Asst. Atty. Gen., Alfred T. Ghiorzi and Michael P. Carlton, Attys., Dept. of Justice, G. William Frick, Gen. Counsel, Washington, D. C., on brief, for Environmental Protection Agency and the Natural Resources Defense Council, Inc.

Before HAYNSWORTH, Chief Judge, and WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

This appeal and consolidated petitions for review concern regulations issued by the Administrator of the Environmental Protection Agency 1 implementing § 316(b) 2 of the Federal Water Pollution Control Act Amendments of 1972. 3 The sole question before us on appeal is whether review of those regulations lies within the original jurisdiction of the district court, or whether review is in the court of appeals under § 509(b)(1) 4 of the Act. We hold that, because review is in the court of appeals, the judgment of the district court dismissing the case for lack of subject matter jurisdiction is affirmed. In Nos.: 76-1474 and 76-2057, treated in an accompanying opinion, we deal with further threshold issues pertaining to the scope of EPA's § 316(b) regulations, and whether proper procedures were employed in their adoption.

Section 316(b) of the Act, 33 U.S.C. § 1326(b), requires that "(a)ny standard established

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pursuant to § 301 5 or § 306 6 of this Act and applicable to a point source 7 shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." (footnotes added). The regulations in question, 40 C.F.R. §§ 402.10-402.12, essentially provide, in determining whether the best available technology is employed in the manner required by § 316(b), that "(t)he information contained in the Development Document shall be considered." 8 40 C.F.R. § 402.12.

Fifty-eight electric utility companies (the utilities) filed a timely petition in this court for review of the above regulations, in accordance with § 509(b) of the Act. 9 Upon consideration of the Development Document referred to in § 402.12, however, petitioners state they became convinced that jurisdiction properly resided in the district court. Accordingly, they filed a motion suggesting lack of jurisdiction in this court, and asked us to rule on our jurisdiction in advance of briefing on the merits. At the same time, petitions for review of the regulations were filed by the same utilities in the United States District Court for the Eastern District of Virginia. It is from the district court's dismissal for lack of jurisdiction that this appeal is taken.

A number of courts have already undertaken in some detail to chart a course through the rather complex, and often confusing, 10 language of the 1972 amendments to the Water Pollution Control Act. See, e. g., E. I. du Pont de Nemours & Co. v. Train,

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430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 539 F.2d 107 (1976). We will attempt to limit our duplication of those efforts. The logical starting point for our inquiry is § 509(b)(1)(E), 33 U.S.C. § 1369(b) (1)(E), which provides that "(r)eview 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 in the United States Courts of Appeals. Since EPA relies on §§ 301 and 306, in addition to § 316(b), as authority for the challenged regulations, 11 the question at this point is whether the regulations constitute "effluent limitation(s) or other...

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