Virginia Electric & Power Company v. United States Environmental Protection Agency

655 F.2d 534

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 28, 1981
• Docket: No. 79-1347 and Consolidated Cases
• Status: Published

Opinions

MURNAGHAN, Circuit Judge:

In a symbolic sense, the procedural issue we now consider may provide in the 1980’s a close resemblance to the land rush when the Oklahoma Territories were opened.

It concerns judicial review of extensive amendments proposed on August 21, 1978 to regulations of the United States Environmental Protection Agency (“EPA”) governing the National Pollutant Discharge Elimination System (“NPDES”) permit program under the Clean Water Act (“CWA”). 43 Fed.Reg. 37078-37134. The amended regulations were formally promulgated on June 7, 1979. 44 Fed.Reg. 32854-32956.

Almost immediately thereafter, the EPA, on June 14, 1979, proposed Consolidated Permit Regulations applicable to several permit programs, namely those under the CWA, under The Resource Conservation and Recovery Act (“RCRA”), under The Safe Drinking Water Act (“SDWA”), and under The Clean Air Act (“CAA”). 44 Fed. Reg. 34244-34344. Not surprisingly, the portions of the proposed Consolidated Regulations applicable to the NPDES permit program under the CWA were virtually identical to the June 1979 regulations addressed exclusively to the CWA.

The final Consolidated Permit Regulations were issued on May 19, 1980. 45 Fed.Reg. 33290-33513 (40 C.F.R. Parts 122, 123, 124 and 125).

The equivalent of the Oklahoma Territories stampede had its first running with respect to the 1979 NPDES regulations under the CWA. 28 U.S.C. § 2112(a) provides in pertinent part:

If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. . . . For the convenience of the parties in the interest of justice such court may thereafter transfer all the proceedings with respect to such order to any other court of appeals.

Those who entered the race comprised a very substantial sampling, if by no means all, of the American industrial confraternity. Simultaneous petitions for review were filed, under § 509(b)(1)¹ of the CWA in the District of Columbia Circuit, the Fourth Circuit, and the Fifth Circuit on June 14, 1979 (the date set by EPA for judicial review). As the petitions for review were simultaneous, none was the first instituted proceeding. The proceeding filed in the Fourth Circuit was instituted, inter alia, by Virginia Electric and Power Co. (“VEP-CO”). In the van in the District of Columbia Circuit was The National Resources Defense Council, Inc. (“NRDC”). Following consultation ■ among the circuits, it was agreed that the Fourth Circuit should be the court to determine venue and, as a consequence, all cases seeking review of the 1979 NPDES regulations under the CWA (including later filed cases in the Third, Ninth and Tenth Circuits) have subsequently been transferred to the Fourth Circuit. A number of them have been consolidated in the case which now confronts the Court.

The earliest date for filing a proceeding to review the 1980 Consolidated Regulations was set for June 2, 1980 at 1:00 p. m. The churning Conestoga wagons again crossed the line simultaneously in the District of Columbia Circuit, the Fourth Circuit, and the Fifth Circuit. VEPCO, et al., attempting to build on their 1979 preferred position, also filed a motion to amend the June 14, 1979 petition to have those portions of the NPDES provisions under the CWA contained in the 1980 regulations treated as extensions of the 1979 regulations and, therefore, as relating back to and being incorporated in the 1979 regulations.

NRDC on July 29, 1980, and EPA, on August 22, 1980, moved for transfer of the 1979 and 1980 cases concerning the NPDES under the CWA to the District of Columbia Circuit.

In general, the Consolidated Regulations, insofar as they derived their existence from statutes other than the CWA, could only be reviewed in the District of Columbia Circuit. 42 U.S.C. § 6976(1) as to the RCRA, 42 U.S.C. § 300j — 7(a)(1) as to the SDWA and 42 U.S.C. § 7607(b)(1) as to the CAA. The question for us to resolve is whether we should sever or continue severance of the portions of the 1980 Consolidated Permit Regulations dealing with the CWA from the companion RCRA, SDWA, and CAA regulations.

Our review of the problem satisfies us that, simply on discretionary grounds, we should not seek such a result. It would lead to a divided and quite possibly disparate approach in a matter of extraordinary complexity and importance. Congressional considerations favoring an approach which would allow the earliest filing private party affected by the regulations to opt for its home grounds as the place to conduct the judicial contest pale into insignificance when other considerations are taken into account.

There are manifestly interrelated aspects to the four acts here involved.² The inherent reasonableness in a consolidated approach by the EPA, with the statutes mandating review as to three out of the four statutes exclusively by the District of Columbia Circuit, suffices to reject unparticu-larized suspicions of an attempt on the part of the EPA to manipulate the choice of the reviewing court.

The situation would be quite different if the only regulations concerned were those under the CWA. Then there would be force in arguments that the legislative history of § 509(b) reflects a congressional policy not to centralize review in Washington. Such a congressional policy under one statute alone, however, subsides in importance where four closely interrelated statutory enactments make eminently reasonable a consolidated regulations approach.

Therefore, it is our determination that “for the convenience of the parties in the interest of justice” we should transfer the cases to the District of Columbia Circuit.

Inasmuch as we have resolved the matter on discretionary grounds of convenience of the courts and of the parties, of judicial economy, and of the advantages of a coherent single court review, it is not necessary that we consider a subsidiary contention of those urging transfer. The contention relates to a possible deficiency in jurisdiction of courts of appeal generally under § 509(b), the District of Columbia Circuit, as well as ourselves. We intend to intimate no opinion one way or the other as to whether there is or is not jurisdiction in the courts of appeal. Nor do we consider or decide the corollary proposition that, if jurisdiction should be generally lacking in the courts of appeal, the District of Columbia Circuit is in a superior position to remedy the defect, due to its jurisdiction under the other three statutes, which might supply a basis for an ancillary jurisdiction of the NPDES petitions for review.

In sum, as a matter of discretion, we decline to separate out the NPDES portion under the CWA of the 1980 Consolidated Regulations for review by the Fourth Circuit on the grounds that that portion of the 1980 Consolidated Regulations is actually a development and extension of the 1979 NPDES regulations under the CWA. To the extent that any prior order proceeds on such an approach, it is here and now terminated, and cases seeking review of the 1980 Consolidated Regulations are hereby transferred to the District of Columbia Circuit. We further hold, in exercise of our discretion, that, since the 1980 Consolidated Regulations to be reviewed in the District of Columbia Circuit will include NPDES regulations under the CWA, for the convenience of the parties and the interests of justice, cases seeking review of the 1979 NPDES regulations should be transferred to the Court of Appeals for the District of Columbia Circuit. It is so ordered.

1 . 33 U.S.C. § 1369(b)(1).

2 . For example, Subparts A (General Program Requirements) of Parts 122, 123, and 124 apply equally to programs under the CAA, the RCRA, the SDWA, and the CWA. Separating judicial review of each Subpart A as it applies to the NPDES under the CWA from review of each Subpart A as it applies to other programs makes little sense either in terms of judicial consistency or economy. Many sections in each Subpart contain uniform requirements for each program. See, e. g., 40 C.F.R. § 122.6 (signatories to permit applications and reports); 40 C.F.R. § 122.7 (conditions applicable to all permits); 40 C.F.R. § 123.14, .15 (criteria and procedures for withdrawal of EPA approval of a state program); 40 C.F.R. § 124.6 (draft permits); 40 C.F.R. § 124.9 (administrative record for draft permits).