Tenneco Oil Co. v. E.P.A., s. 78-1684

• Decision Date: 09 April 1979
• Docket Number: 78-1687 and 78-1688,Nos. 78-1684,s. 78-1684
• Citation: 592 F.2d 897
• Parties: , 50 A.L.R.Fed. 882 TENNECO OIL COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle, Administrator, and Eckhardt C. Beck, Regional Administrator, Region II, Respondents. EXXON CORPORATION, Petitioner, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle, and Eckhardt C. Beck, Respondents. TEXACO, INC., Petitioner, v. The ENVIRONMENTAL PROTECTION AGENCY, an independent agency of the executive branch of the government of the United States, et al., Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 897

592 F.2d 897

13 ERC 1092, 50 A.L.R.Fed. 882

TENNECO OIL COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle,

Administrator, and Eckhardt C. Beck, Regional

Administrator, Region II, Respondents.

EXXON CORPORATION, Petitioner, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Douglas M.

Costle, and Eckhardt C. Beck, Respondents.

TEXACO, INC., Petitioner, v. The ENVIRONMENTAL PROTECTION AGENCY, an independent agency

of the executive branch of the government of the

United States, et al., Respondents.

Nos. 78-1684, 78-1687 and 78-1688.

United States Court of Appeals, Fifth Circuit.

April 9, 1979.

Baker & Botts, Washington, D. C., for petitioner in No. 78-1684 and No. 78-1687.

Charles M. Darling, IV, J. Patrick Berry, Washington, D. C., Alfred B. Smith, Jr., Tenneco Oil Co., Houston, Tex., for Tenneco Oil Co.

H. H. Hillyer, Jr., Joseph E. Leblanc, Jr., New Orleans, La., for Exxon Corp.

Shirley C. Friend, Jr., New Orleans, La., for Texaco, Inc.

Bernard J. Caillouet, New Orleans, La., for intervenors in Nos. 78-1684 and 78-1688 and for petitioner in No. 78-1687.

Douglas M. Costle, Administrator-EPA, Jeffrey M. Gaba, Patrick J. Cafferty, Jr., Atty., Land & Natural Resources Div., Dept. of Justice, Washington, D. C., for respondents in all cases.

Milling, Benson, Woodward, Hillyer & Pierson, New Orleans, La., for petitioner in No. 78-1687.

Eckardt C. Beck, Regional Adm., EPA, Region II, New York City, for respondents in Nos. 78-1687 and 78-1688.

James W. Moorman, Asst. Atty. Gen., Land and Natural Resources Division, Dept. of Justice, Washington, D. C., for respondents in No. 78-1688.

Petitions for Review of an Order of the Environmental Protection Agency.

Before BROWN, Chief Judge, GODBOLD and RONEY, Circuit Judges.

PER CURIAM:

In a previous ruling, 577 F.2d 931 (5th Cir. 1978), this Court denied a motion in this cause to dismiss or transfer petitions for review. The basis for that ruling was that the principal place of business of all three companies lay within the Fifth Circuit. Subsequently, petitioners Exxon Corporation and Texaco, Inc. notified the Court that their principal places of business are not in this Circuit. Since the factual predicate for the prior ruling is incorrect, it is therefore necessary to reconsider the motion. The previous opinion is vacated and the instant opinion substituted. Because of the decision here, the order denying the motion to dismiss remains unaffected.

Three oil companies seek review in this Circuit of the Environmental Protection Agency Administrator's action in issuing a permit under 33 U.S.C.A. § 1342 concerning the discharge of effluents from offshore drilling platforms located in the Atlantic Ocean. The EPA has moved that the petitions for review be dismissed or transferred. We deny the motion. The petitions were properly filed in this Circuit and, on balance, the equitable circumstances do not compel transfer of the petitions to another circuit.

Judicial review is controlled by 33 U.S.C.A. § 1369(b)(1)(F):

Review of the Administrator's action . . . in issuing or denying any permit under section 1342 of this title, 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. ¹

It must, therefore, be determined whether petitioners "reside" or "transact such business" in the Fifth Circuit.

None of the oil companies "resides" within the Fifth Circuit. For the purposes of the general venue statute a corporation resides only at its place of incorporation, Suttle v. Reich Brothers Construction Co., 333 U.S. 163, 68 S.Ct. 900, 92 L.Ed. 614 (1948), and the provisions of § 1369 may be presumed to utilize the same rule. See FPC v. Texaco, Inc., 377 U.S. 33, 37-39, 84 S.Ct. 1105, 1108-1109, 12 L.Ed.2d 112, 116-117 (1964). Texaco and Tenneco are incorporated in Delaware and Exxon is incorporated in New Jersey.

The meaning of "transacts such business" is ambiguous. The phrase's ambiguity stems from the word "such," which suggests a limitation but has no immediately obvious antecedent that clarifies what the limitation is.

The EPA urges that "transacts such business" refers only to the operations directly affected by the Administrator's action; namely, offshore platforms which are outside this Circuit. This interpretation, however, contradicts the legislative history of the phrase. The original Senate version of the Act would have codified the Administrator's interpretation under the rubric of "appropriate circuit" which was the circuit "in which the affected State or region . . . is located." 1972 U. S. Code Cong. & Admin. News 3751. The Senate version, however, was rejected by the House. The Conference Committee substituted the present version.

The only reported case to consider this issue is Peabody Coal Co. v. EPA, 522 F.2d 1152 (8th Cir. 1975). Where petitioner's business within the circuit was affected by the challenged EPA actions, the Eighth Circuit in this case held that "such business" was "transacted" in the Eighth Circuit for purposes of § 1369 review. Although the court expressly disavowed any intention of construing "such" beyond the factual...