Dominion Energy Brayton Point, LLC v. Johnson

443 F.3d 12 (1st Cir. 2006)


P’s withdrawals and discharges of water for its power plant are regulated by the Clean Water Act (CWA). The water that P discharges has elevated temperatures. For the last three decades, these actions have been authorized by a series of NPDES permits issued by the EPA. In 1998, P applied for renewal of its NPDES permit and thermal variance authorization. The EPA rejected the requested thermal variance. P sought review before the Environmental Appeals Board and asked for an evidentiary hearing. The Board accepted the petition for review but declined to convene an evidentiary hearing. P notified the EPA of its intent to file a citizen's suit to compel the Board to hold an evidentiary hearing. P filed suit, and the EPA moved to dismiss. The district concluded that it was without subject matter jurisdiction because the suit, though billed as a citizen's suit, constituted a direct challenge to the EPA's hearing rule and, thus, came within the exclusive jurisdiction of the circuit court under 33 U.S.C. § 1369(b)(1)(E). P appealed.