DOMINION ENERGY BRAYTON POINT, LLC V. JOHNSON
443 F.3d 12 (1st Cir. 2006)
NATURE OF THE CASE: Dominion (P) appealed a dismissal of its action against the EPA for
want of subject matter jurisdiction.
FACTS: 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.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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