Modine Mfg. Corp. v. Kay

• Citation: 791 F.2d 267
• Decision Date: 27 May 1986
• Docket Number: No. 85-3509,85-3496 and 85-3509,Nos. 85-3397,No. 85-3397,No. 85-3496,V,J,85-3397,85-3496,85-3509,s. 85-3397
• Parties: , 54 USLW 2605, 16 Envtl. L. Rep. 20,750 MODINE MANUFACTURING CORPORATION, Petitioner, v. Morris KAY, Regional Administrator, Region VII, U.S. Environmental Protection Agency and U.S. Environmental Protection Agency, Region VII, Respondents inudith E. Ayres, Regional Administrator, Region IX, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Region IX, Respondents inaldas V. Adamkus, Regional Administrator, Region V, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Region V, Respondents in
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 267

791 F.2d 267

24 ERC 1449, 54 USLW 2605, 16 Envtl.

L. Rep. 20,750

MODINE MANUFACTURING CORPORATION, Petitioner, v. Morris KAY, Regional Administrator, Region VII, U.S Environmental Protection Agency and U.S Environmental Protection Agency, Region VII, Respondents in No. 85-3397 Judith E. Ayres, Regional Administrator, Region IX, U.S Environmental Protection Agency, and U.S. Environmental Protection Agency, Region IX, Respondents in No. 85-3496, Valdas V. Adamkus, Regional Administrator, Region V, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Region V, Respondents in No. 85-3509.

Nos. 85-3397, 85-3496 and 85-3509.

United States Court of Appeals, Third Circuit.

Argued April 15, 1986.

Decided May 27, 1986.

Richard J. Kissel, M. Therese Yasdick, Daniel F. O'Connell, Joseph S. Wright (argued), Martin, Craig, Chester & Sonnenschein, Chicago, Ill., for petitioner.

F. Henry Habicht, II, Asst. Atty. Gen., Land and Natural Resources Div., Margaret N. Strand, Carl Strass, U.S. Dept. of Justice, Lee C. Schroer (argued), U.S.E.P.A., Francis S. Blake (of counsel), Gen. Counsel, Colburn T. Cherney, Susan G. Lepow, U.S.E.P.A., Washington, D.C., for respondents.

Before ADAMS, GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

These petitions require the Court to determine whether it has jurisdiction to review directly administrative interpretations of regulations promulgated under the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251 et seq. (1982). If such jurisdiction exists, we then must consider the propriety of the agency's rulings.

The Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, covers direct dischargers who send waste into navigable waters, and indirect dischargers who emit waste into sewer systems and publicly owned treatment works (POTWs). For the latter group, the Administrator of the United States Environmental Protection Agency (EPA) promulgates "pretreatment standards" requiring treatment of certain pollutants by a private concern before the waste is discharged.

In this proceeding, Modine Manufacturing Corp., a producer of automobile radiators and other heat transfer products, challenges the application to seven of its facilities of certain pretreatment standards. Three EPA Regional Administrators concluded that the Modine facilities perform brass cleaning, considered by EPA a "bright dipping" operation, and that brass dipping is subject to categorical pretreatment standards for electroplating and for metal finishing. ¹ Contending that it is exempt from these standards, Modine filed a petition for review in this Court. In addition, separate petitions for review filed by Modine in the Courts of Appeal for the Seventh and Eighth Circuits were transferred here.

The threshold issue is whether a court of appeals has jurisdiction to afford direct review of agency applications of categorical pretreatment standards, or whether a prior review in the district court is required. We conclude that court of appeals jurisdiction does exist to entertain a direct review, and, on the merits, that the agency did not err in its interpretation of its regulations. Accordingly, Modine's petitions for review will be denied.

I.

Authority of the Administrator to issue pretreatment standards is set forth in Sec. 307(b) of the Act, 33 U.S.C. Sec. 1317(b) (1982). The first question we address is whether this Court has jurisdiction under Sec. 509(b)(1) of the Act, 33 U.S.C. Sec. 1369(b)(1) (1982), to entertain a petition for direct review of the agency's application of these standards in individual cases.

In general, the Act divides responsibility for judicial review between the district courts and the courts of appeals. The district courts, for example, are authorized to hear enforcement actions brought by EPA seeking civil or criminal penalties, Sec. 309, 33 U.S.C. Sec. 1319, and citizen suits against the Administrator for failure to perform an act or duty not within his discretion, or against any person alleged to be in violation of the Act, Sec. 505, 33 U.S.C. Sec. 1365. In contrast, Sec. 509(b)(1) of the Act provides, in relevant part:

Review of the Administrator's action ... (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title ... may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal district in which such person resides or transacts such business upon application by such person.

None of the provisions for judicial review is clearly applicable to the Administrator's actions in the Modine proceedings. These proceedings arose out of Modine's request for rulings on whether categorical pretreatment standards promulgated by the agency apply to certain facilities performing bright dipping. Such requests are permitted by the agency's regulations.

Within 60 days after the effective date of a Pretreatment Standard for a subcategory under which an Industrial User may be included, or within 60 days after the FEDERAL REGISTER notice announcing the availability of the technical development document for that subcategory, whichever is later, the existing Industrial User or POTW may request that the Enforcement Division Director or Director, as appropriate, provide written certification on whether the Industrial User falls within that particular subcategory.

40 C.F.R. Sec. 403.6(a)(1) (1985). Both Modine and the EPA maintain that the rulings by the agency on the applicability of pretreatment standards are tantamount to the promulgation of standards, and are therefore reviewable directly in the courts of appeals pursuant to Sec. 509(b)(1)(C) of the Act. The contrary argument is that the Act allows direct review in the appellate courts only of initial promulgations, and not subsequent interpretations of regulations. If this argument is correct, jurisdiction to review the agency's interpretation would be in the district court, either under federal question jurisdiction, 28 U.S.C. Sec. 1331 (1982), or in an enforcement proceeding brought by EPA against Modine, 33 U.S.C. Sec. 1319 (1982). To our knowledge, no court has addressed the jurisdictional implications of the Sec. 403.6(a) procedure.

The Supreme Court favors a liberal interpretation of statutes providing for judicial review of administrative action. In Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the Court declared "that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Id. at 140, 87 S.Ct. at 1511. It is true that this expansive statement was made in a case implicating the district court's federal question jurisdiction; a court of appeals has no jurisdiction absent its own statutory mandate. Lancellotti v. Office of Personnel Management, 704 F.2d 91, 97 (3d Cir.1983). But where, as here, a statute allows for some appellate review of agency action, the Supreme Court has applied a corollary of the Abbott rule, deciding that such jurisdictional provisions should be construed generously absent clear and convincing evidence of a contrary congressional intent. See, e.g., Lindahl v. Office of Personnel Management, --- U.S. ----, ----, 105 S.Ct. 1620, 1627, 84 L.Ed.2d 674 (1985); see also PBW Stock Exchange, Inc v. SEC, 485 F.2d 718, 738-39 (3d Cir.1973) (Adams, J., dissenting), cert. denied, 416 U.S. 969, 94 S.Ct. 1992, 40 L.Ed.2d 558 (1974).

Not only has the Supreme Court favored a liberal view of jurisdiction in administrative cases, but it has recently emphasized that direct review in the courts of appeals is generally preferred to initial district court review. "Absent a firm indication that Congress intended to locate initial [Administrative Procedure Act] review of agency action in the district courts, we will not presume that Congress intended to depart from the sound policy of placing initial APA review in the courts of appeals." Florida Power & Light Co. v. Lorion, --- U.S. ----, ----, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985). Where the agency has already compiled an administrative record, the Supreme Court explained, district court fact-finding is unnecessary, and district court review in such a situation is both a needless and time-consuming duplication of the ultimate appellate consideration. Furthermore, if a statute is construed to provide appellate review of some agency actions and district court review of related decisions, inefficient division of judicial resources may result. Id.

In considering the scope of a particular statute conferring jurisdiction on the courts of appeals to review agency actions, Florida Power mandated that a court must consider the legislative history, the statutory structure, and the general principles sketched above regarding the proper allocation of judicial authority to review agency determinations. Id. 105 S.Ct. at 1603.

The legislative history concerning Sec. 509(b)(1) is silent on whether EPA interpretations of promulgated standards are within the jurisdiction of the courts of appeals. See generally 1972 U.S. Code Cong. & Ad. News 3668 et seq. Thus, we discern no clear congressional intent to preclude such review. Moreover, the policies outlined in Florida Power favor jurisdiction by an appellate court over Modine's petitions.

EPA's interpretation mechanism for pretreatment standards, under Sec. 403.6(a)(1) of its regulations, provides an administrative record. In the present matter, no facts are in dispute. For the district court to afford initial judicial review, relying on the same record and applying the same standards that this Court would ultimately use, consequently would be "duplicative, wasteful and inefficient." Lindahl, 105 S.Ct. at 1636. Even if additional fact-finding were necessary, the proper procedure in either court would be to...