The opinion of the court was delivered by: P. Kevin Castel, District Judge
Section 316(b) of the Clean Water Act (the "Act"), 33 U.S.C. § 1326(b), seeks to protect fish, shellfish and other aquatic organisms from unnecessary harm from cooling water intake structures. Phase I and Phase II Rules, promulgated pursuant to a consent decree in a prior litigation to enforce section 316(b), have been considered in prior opinions of the United States Court of Appeals for the Second Circuit, familiarity with which is assumed. See Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d Cir. 2004) ("Riverkeeper I"); Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007) ("Riverkeeper II").
On June 16, 2006, the United States Environmental Protection Agency ("EPA") promulgated "Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase III Facilities" ("Phase III Rule"), 71 Fed. Reg. 35,006.*fn1 The EPA adopted final regulations establishing categorical limitations for intake structures at new offshore oil and gas extraction facilities. Id. However, the final action did not include the promulgation of a regulation governing existing Phase III facilities. Id.
The plaintiffs filed suit against the EPA and its Administrator (collectively, the "EPA defendants") pursuant to section 505(a) of the Act. They allege that the EPA Administrator was required by section 316(b) to promulgate regulations governing cooling water intake structures at existing facilities but failed to do so. This, they further allege, constituted the failure to perform a non-discretionary duty under the Act. They seek injunctive and declaratory relief requiring the promulgation of such regulations.
The EPA defendants now move to dismiss asserting that subject matter jurisdiction to review final agency action with respect to any Phase III Rule lies only in the court of appeals and not in the district court.*fn2 The motion is denied.
I. Subject Matter Jurisdiction
The EPA defendants correctly note that section 509(b)(1)(E) of the Act vests exclusive jurisdiction in the courts of appeals to review "the Administrator's action . . . in approving or promulgating any effluent limitation or other limitation . . . ." 33 U.S.C. § 1369(b)(1)(E). They argue that the final action of the EPA will mean that existing facilities will continue to be considered on a case-by-case, best professional judgment basis. See 71 Fed. Reg. 35,006. The EPA defendants characterize the plaintiffs' Amended Complaint as challenging the EPA's selected method of regulating cooling water intake structures in existing facilities. On a plain comparison of the agency's action against the language of section 509(b)(1)(E), the decision not to promulgate a regulation or other form of "limitation" does not easily equate with "action . . . approving or promulgating any effluent limitation or other limitation."
Not all actions of the EPA under the Act are reviewable under section 509(b)(1)(E). "If Congress had so intended, it could have simply provided that all EPA action under the statute would be subject to review in the courts of appeals, rather than specifying particular actions and leaving out others." Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 517 (2d Cir. 1976). The Amended Complaint asserts a claim that is not within the scope of section 509(b)(1)(E) because it challenges not a "limitation" but the absence of a "limitation."
The EPA defendants point out that the plaintiffs have filed a petition under 509(b)(1)(E) in the Court of Appeals for the Second Circuit (subsequently transferred to the Fifth Circuit) to review the agency action. Riverkeeper v. EPA, 06-3059-ag (2d Cir.). True, "there is a strong presumption against the availability of simultaneous review in both the district court and the court of appeals" under the Act. Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 287 (2d Cir. 1976) (citing Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975)). But the presumption does not relieve this Court of its obligation to determine its own jurisdiction. There is no indication that proceedings in the Court of Appeals have advanced beyond an application to transfer venue from the Fifth Circuit to the Second Circuit, and plaintiffs have expressed an intention to seek a stay of their petition.
Having concluded that the Amended Complaint does not present an issue under section 509(b)(1)(E), there remain the questions of whether this Court has jurisdiction of the asserted claims under section 505(a) of the Act and sections 706(2)(A) and (C) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), (C).
A. Citizen Suits Under Section 505(a) of the Clean Water Act
Section 505(a) of the Act permits "any citizen" to commence an action on his own behalf in the district courts "against the Administrator [of the EPA] where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 33 U.S.C. § 1365(a)(2). Here, the Amended Complaint alleges that the EPA administrator had a non-discretionary duty under the Act to promulgate regulations governing cooling water intake structures at existing industrial facilities but failed to do so. (Am. Compl., ¶ 90.) If not immaterial, insubstantial or frivolous, the allegations are sufficient to confer jurisdiction on this Court. Bell v. Hood, 327 U.S. 678, 681-83 (1946).
Section 316(b) of the Act provides that "[a]ny standard established pursuant to section [301 (effluent limitations)] or section [306 (national standards of performance)] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." 33 U.S.C. § 1326(b); see also id. §§ 1311, 1316. The quoted statutory language does not on its face mandate the issuance of any regulation or "standard" but speaks to the required elements of "any standard" that is established under sections 301 and 306. The plaintiffs assert that the missing element is supplied by section 301 which required certain "effluent limitations" be established by specified dates. The plaintiffs assert that section 301 "effluent limitations" were established for existing facilities thereby triggering an obligation to establish certain limitations under section 316(b). See 40 C.F.R. §§ 414, 419, 430 & 438; see also Riverkeeper I, 358 F. 3d at 185 (discussing the obligation to promulgate effluent limitations applicable to existing facilities under section 301). It suffices to note for jurisdictional purposes that plaintiffs' allegations are not "immaterial", "insubstantial" or "frivolous". Bell v. Hood, 327 U.S. at 682-83.
I do not view Virginia Electric & Power Co. v. Costle, 566 F.2d 446 (4th Cir. 1977), to be to the contrary. There, a regulation was promulgated under section 316(b) which required the submission of certain data to facilitate a case-by-case review. The Court concluded that the regulation, though it did not contain specific numerical standards, amounted to a "limitation." Id. at 450. Here, it is the absence of ...