## Facts

- Dominion Energy Brayton Point, LLC owned and operated the Brayton Point Station, a fossil-fuel power plant in Somerset, Massachusetts, using once-through cooling that discharged heated water into Mount Hope Bay.
- The plant operated under a series of Clean Water Act (CWA) NPDES permits issued by EPA under CWA § 402(a), with thermal limits historically addressed through CWA § 316(a) variance procedures.
- In 1998, Dominion applied to renew its NPDES permit and to continue thermal-variance authorization.
- In October 2003, EPA Region 1 issued a proposed final permit rejecting Dominion’s requested thermal variance.
- Under EPA’s updated NPDES procedures, formal trial-type evidentiary hearings were replaced with review based on written submissions before the Environmental Appeals Board (EAB).
- Dominion petitioned the EAB for review of the proposed final permit and requested a formal evidentiary hearing; the EAB accepted review but declined to convene an evidentiary hearing.
- Dominion served notice of intent to sue under CWA § 505(a)(2), alleging EPA failed to perform a nondiscretionary duty to provide an evidentiary hearing, and then filed suit in the District of Massachusetts.
- The district court dismissed for lack of subject-matter jurisdiction, reasoning the suit was effectively a challenge to EPA’s hearing rule subject to exclusive court-of-appeals review under CWA § 509(b)(1)(E).

## Issues

1. Whether, after Chevron deference principles, earlier circuit precedent interpreting the CWA term “public hearing” to require a formal evidentiary hearing continued to bind EPA.
2. Whether the CWA imposes a nondiscretionary duty on EPA to provide a trial-type evidentiary hearing in this NPDES permitting context, permitting a citizen suit under CWA § 505(a)(2).
3. Whether Dominion’s claim was, in substance, a challenge to EPA’s procedural rule governing NPDES hearings that must be brought via the CWA’s exclusive direct-review scheme in the court of appeals under CWA § 509(b)(1)(E).

## Decision

- The First Circuit affirmed dismissal for lack of subject-matter jurisdiction.
- The court held that the CWA’s “public hearing” language is ambiguous regarding the need for formal, on-the-record adjudication, and EPA’s post-Chevron interpretation eliminating trial-type hearings was reasonable and entitled to deference.
- Because the statute did not clearly require a formal evidentiary hearing, EPA had no nondiscretionary duty to provide one; therefore, CWA § 505(a)(2) did not supply district-court jurisdiction.
- The court agreed that Dominion’s lawsuit functioned as a collateral attack on EPA’s hearing rule, which must proceed, if at all, through the CWA’s exclusive court-of-appeals review provisions rather than a citizen suit.

## Legal Principles

- When statutory text governing agency procedure is ambiguous, courts generally defer under Chevron to a reasonable agency construction, and pre-Chevron judicial interpretations may not control if they did not apply deference and the agency has adopted a reasonable alternative interpretation.
- A “public hearing” requirement in an environmental permitting statute does not, without clear statutory direction, compel a formal trial-type evidentiary hearing governed by APA formal adjudication procedures.
- CWA § 505(a)(2) citizen-suit jurisdiction is limited to compelling performance of a clear, nondiscretionary duty; it cannot be used where the asserted duty depends on rejecting a reasonable agency interpretation of ambiguous statutory language.
- Litigants may not repackage a challenge to EPA regulations or permitting procedures as a citizen suit to bypass the CWA’s specialized, exclusive direct-review mechanism in the courts of appeals under CWA § 509(b)(1).

## Conclusion

The First Circuit held that EPA was not required to provide Dominion a formal evidentiary hearing in the NPDES renewal process because the CWA did not unambiguously mandate such a procedure and EPA’s contrary approach was entitled to deference; lacking a nondiscretionary duty, Dominion could not proceed via a district-court citizen suit, and any meaningful challenge belonged in the CWA’s direct-review channel in the court of appeals.


Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006)