Chesapeake Bay Foundation, Inc. v. United States

• Decision Date: 28 February 1978
• Docket Number: No. CA77-0376-R.,CA77-0376-R.
• Citation: 445 F. Supp. 1349
• Court: U.S. District Court — Eastern District of Virginia
• Parties: CHESAPEAKE BAY FOUNDATION, INC. and Citizens Against the Refinery's Effects, Inc., Plaintiffs, v. UNITED STATES et al., Defendants.

445 F. Supp. 1349

CHESAPEAKE BAY FOUNDATION, INC. and Citizens Against the Refinery's Effects, Inc., Plaintiffs, v. UNITED STATES et al., Defendants.

No. CA77-0376-R.

United States District Court, E. D. Virginia, Richmond Division.

February 28, 1978.

Patrick M. McSweeney, Richmond, Va., with Bruce J. Terris, Washington, D. C., Thomas B. Lewis, Staff Atty., Chesapeake Bay Foundation, Annapolis, Md., for plaintiffs.

Norman Olitsky, Gordon B. Tayloe, Jr., City Atty., Portsmouth, Va., for intervening defendants.

Eliot Norman, Asst. U. S. Atty., Richmond, Va., Steven Schatzow, EPA, Washington, D. C., Patrick J. Cafferty, Dept. of Justice, Washington, D. C., for defendants United States and Costle.

David E. Evans, Asst. Atty. Gen., Richmond, Va., for Virginia State Water Control Board.

Gerald L. Baliles, Richmond, Va., J. Michael Hines, Washington, D. C., for Hampton Roads Energy Co., Inc.

MEMORANDUM

MERHIGE, District Judge.

Plaintiffs, Chesapeake Bay Foundation, Inc. and Citizens Against the Refinery's Effects, Inc., seek declaratory judgment, injunctive relief and mandamus with regard to a decision to issue a discharge permit for a proposed petroleum refinery to be located in Portsmouth, Virginia. Plaintiffs are nonprofit conservation organizations and oppose the issuance of a National Pollutant Discharge Elimination System (NPDES) permit to Hampton Roads Energy Company (Hampton Roads). Defendants are the Virginia State Water Control Board (State Board), the Environmental Protection Agency (EPA), the United States of America and Hampton Roads. The City of Portsmouth, Virginia and Hampton Roads Building and Construction Trades Council have intervened as party defendants in the instant litigation. The matter comes before the Court on defendants' and intervenors' motions to dismiss for lack of subject matter jurisdiction. Plaintiffs allege jurisdiction under 28 U.S.C. § 1331(a), 28 U.S.C. § 1361, 33 U.S.C. § 1251 and the doctrine of pendent jurisdiction. The issue, having been briefed and orally argued, is now ripe for disposition.

The facts in the instant case relating to the issue of jurisdiction are not in dispute. The record reflects that on October 19, 1976, Hampton Roads applied to the State Board for a permit to discharge waste from a proposed refinery to be built on the shores of the Elizabeth River in Portsmouth, Virginia. A copy of the application was forwarded to the EPA, Region III office and a public hearing was conducted by the State Board on December 9, 1976. On January 28, 1977, EPA advised the State that there would be no objection to the issuance of the proposed permit. Thereafter, on February 18, 1977, the State Board convened a second meeting and a modified permit was approved by the Board. On March 16, 1977, the plaintiffs petitioned the EPA to veto Hampton Roads' permit and gave notice of their intention to file suit in the event the permit was not vetoed by the EPA. EPA notified plaintiffs that its position as expressed on January 28, 1977 to the effect that it did not object to the issuance of the permit remained unchanged. On June 30, 1977 the instant suit was filed. Plaintiffs allege four separate grounds for jurisdiction which the Court will address seriatim.

The Act

The Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251-1376, substantially revised the original Act which had been passed in 1948. The 1972 Amendments were designed to ". . . restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The discharge permit system was established for the purpose of enforcing water control standards by regulating the introduction of pollutants into our Nation's waters at the source. The NPDES permit program, 33 U.S.C. § 1342, prohibits discharge of a pollutant without a permit. 33 U.S.C. § 1311(a). Our Congress initially vested EPA with the authority to implement this program, 33 U.S.C. § 1342(a). The Act also permits the states to regulate and administer the issuance of permits.¹ Indeed, as long as the state's program meets all the requirements of the Act, the EPA has no alternative but to approve the state program.² Additionally, the Act provides that if a state has submitted a satisfactory permit program, the EPA must suspend its own issuance of the permit program within ninety days.³See 33 U.S.C. § 1342(c). The EPA, nevertheless, retains authority to withdraw its approval of a state program and to veto individual permits issued under such programs. 33 U.S.C. § 1342(c). The United States Court of Appeals for the Fifth Circuit in commenting on this relationship stated, "The 1972 Amendments to the Federal Water Pollution Control Act join the Environmental Protection Agency and the fifty states in a delicate partnership charged with controlling and eventually eliminating water pollution throughout the United States." Save the Bay, Inc. v. Administrator of EPA, 556 F.2d 1282, 1284 (5th Cir. 1977).

Jurisdiction

Plaintiffs have alleged four claims against EPA and the State Board in their complaint. Although stated in various ways, all of those claims relate to the issuance of a NPDES permit to Hampton Roads by the State Board and the failure to object to that permit by EPA. Plaintiffs contend that the issuance of the permit was in error because: (1) there was no Environmental Impact Statement (EIS); (2) EPA and the State Board failed to perform certain duties under 33 U.S.C. §§ 1313 and 1314; (3) the State Board decision was not supported by substantial evidence; (4) certain state administrative procedures were not followed.

Plaintiffs first contend that subject matter jurisdiction exists in this case pursuant to 28 U.S.C. § 1331 in that they allege that this case involves federal questions. The first claim in the complaint alleges that an Environmental Impact Statement (EIS) was required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321. Plaintiffs argue that the failure of EPA or the State Board to issue an EIS before granting the permit is a federal question. This Court agrees that a construction of NEPA is a federal question. This is precisely the type of issue that Congress envisioned federal courts would decide under NEPA.⁴ This issue involves construction of a federal statute and a substantial federal question.⁵ This Court must exercise jurisdiction to decide whether an EIS was required before the permit was issued to Hampton Roads.

Plaintiffs also contend that there is a federal question jurisdiction over claims 2-4 in their complaint. These claims relate to EPA's failure to object to the state issued permit to Hampton Roads. Plaintiffs allege in their complaint that the state permit does not meet the requirements of the FWPCA and that the EPA should have objected to the issuance of the permit to Hampton Roads. However, the statute is clear that EPA has discretion whether to object to a state issued permit. Indeed, EPA can waive its right to object to a state permit. See 33 U.S.C. § 1342(e). The Court is of the opinion that EPA's failure to object is an action not reviewable in the federal courts. This precise question was dealt with in Save the Bay, Inc. v. EPA, 556 F.2d 1282, 1284 (5th Cir. 1977) and Mianus River Preservation Committee v. EPA, 541 F.2d 899, 907 (2d Cir. 1976). Both of these cases held that the Courts of Appeal did not have jurisdiction over EPA's failure to object to a state NPDES permit.⁶ It is the opinion of this Court that district court jurisdiction over this issue is also inappropriate. The rationale underlying the Mianus and Save the Bay decisions is that individual state permits are basically state matters. The EPA administrator is to set effluent limitations and approve or reject state programs in general. The right to object to an individual permit is totally discretionary and can be waived completely by the EPA. Since the right to object has been committed to agency review, there is no jurisdiction with regard to these issues.⁷

Additionally, plaintiffs allege in their second claim that the state program in general and EPA's approval of that program are improper since maximum daily loads of water quality have not been established in time and that the state had not established priority rankings pursuant to 33 U.S.C. § 1313(d)(1)(A). Exclusive jurisdiction over EPA's approval of a state permit program vests in the United States Court of Appeals. Section 1369(b)(1) and (2) of the Act permit the Court of Appeals exclusive review of EPA's action with reference to a state permit program in general and effluent limitations pursuant to §§ 1311, 1312 and 1316 of the Act.⁸ Although plaintiffs' second claim involves alleged violations of Section 1313, the claim is inextricably bound with Section 1311 limitations and review is proper in the Court of Appeals if any federal court. American Paper Institute v. Train, 177 U.S.App.D.C. 181, 189-190, 543 F.2d 328, 336-37 (1976). See generally, E. I. Dupont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); Virginia Electric and Power Co. v. Costle, 566 F.2d 446 (4th Cir. 1977). Plaintiffs also allege that these violations require withdrawal of the entire state permit program and that issue is suitable only for review in the Court of Appeals. Plaintiffs assert that the savings provision of 33 U.S.C. § 1365⁹ preserves district court jurisdiction but it is to be noted that that particular provision applies solely to § 1365. Section 1369 of the Act specifically states that certain questions only be reviewed in the Court of Appeals.

Plaintiffs allege additionally that there is federal jurisdiction over EPA's failure to object to the state permit in question here pursuant to 28 U.S.C. § 1361 and the Citizen's Suit provision of the Federal Water Pollution Control Act.¹⁰ The flaw in such assertions is that both of the cited provisions involve nondiscretionary duties. As the Court has previously...