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Modine Manufacturing Corp. v. Kay

May 27, 1986

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



On Petitions for Review of Final Actions of the Environmental Protection Agency

Author: Adams

Opinion OF THE COURT

Before ADAMS, GIBBONS and HUNTER, Circuit Judges.

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. § 1251 et seq. (1982). If such jurisdiction exists, we then must consider the propriety of the agency's rulings.

The 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.*fn1 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 question 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 § 307(b) of the Act, 33 U.S.C. § 1317(b) (1982). The first question we address is whether this Court has jurisdiction under § 509(b)(1) of the Act, 33 U.S.C. § 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, § 309, 33 U.S.C. § 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, § 505, 33 U.S.C. § 1365. In contrast, § 509(b)(10 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 ...


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