On Motion to Dismiss.
Opinion filed by LEVENTHAL, Circuit Judge.
Opinion filed by FAHY, Senior Circuit Judge, joining with LEVENTHAL, Circuit Judge.
LEVENTHAL, Circuit Judge:
Utah Power & Light Company (UP&L) petitioned this Court for direct review of a decision by the Environmental Protection Agency (EPA), subjecting three of UP&L's steam electric generating plants under construction to new source review under agency regulations regarding "significant deterioration of air quality."
On November 2, 1976, EPA filed a motion to dismiss for lack of jurisdiction in this Court. Specifically, EPA contended that UP&L was not challenging "the Administrator's action in approving or promulgating" a state implementation plan,
On December 5, 1974, respondent EPA promulgated regulations designed to prevent "significant deterioration" of air quality.
In a letter dated September 2, 1975, Region 8 of the EPA requested that UP&L supply certain information on its plans to construct new power plants. UP&L responded by letter dated September 12, 1975, noting, inter alia, that it had begun construction on three new plants in Utah, after having obtained new source construction permits from the Utah Air Conservation Committee ("Committee"). In accordance with the then existing Utah Air Conservation regulations, these permits were based upon plans that included for each plant a flue gas desulfurization unit ("scrubber"), designed to remove 80 percent of the sulfur dioxide from the flue gases emitted by each plant. Construction on all three plants commenced prior to June 1, 1975, the cut-off date under the EPA significant deterioration regulations.
The Utah Air Conservation regulations were amended on July 9, 1975. On September 15, 1975, three days after its letter to EPA, UP&L applied to the Utah Committee for a determination that under the amended state regulations, the scrubbers were no longer required. In early 1976, the Utah Committee approved the elimination of the scrubbers from the plans for UP&L's three Utah plants.
On February 4, 1976, UP&L filed a request for an EPA ruling that the significant deterioration regulations do not apply to the three Utah plants. On March 25, 1976, EPA's Region 8 notified UP&L that the elimination of the scrubbers constituted a "modification" of the plants, occurring after June 1, 1975, and that such modification would bring the three plants within the ambit of the regulations.
This Court has previously noted that the jurisdictional provisions of the Clean Air Act "have been sources of periodic confusion"
Characterization of the challenged action depends in turn on the nature of petitioner's challenge. Specifically, the court must determine whether the petitioner is attacking the validity of an agency regulation or, instead, is attacking a particular interpretation or application of that regulation.
UP&L's challenge cannot fairly be characterized as impugning the validity of 40 C.F.R. sections 52.21(d)(1) and 52.01(d), which, respectively, make the significant deterioration regulations applicable to stationary sources modified (as well as constructed) on or after June 1, 1975, and define "modification" to include "any physical change in or change in the method of operation of" the polluting source. First, UP&L's petition for review does not, on its face, attack the validity of the significant deterioration regulations.
Consequently, unless UP&L seeks to challenge the EPA's interpretation of the new regulations, the statute provides that petitioner will not be entitled to judicial review in any federal court.
I join in the reasons set forth in the above opinion for the entry, on December 23, 1976, of our order granting EPA's motion to dismiss. I find it unnecessary to our disposition of the motion to discuss the question of jurisdiction of the District Court.
40 C.F.R. § 52.01(d) provides, in pertinent part:
None of the other grounds is relevant to this case, and neither party has argued otherwise.
There is no contention here that although the regulation as issued apparently was accepted by petitioner as constitutional, the interpretation at hand is a "new" circumstance that, if accepted as a correct interpretation of the regulation, has the effect of rendering the regulation invalid.
Finally, we note that in its papers filed with this Court, UP&L stated that the ambiguities of the Clean Air Act created a dilemma: if petitioner had first filed a complaint with the district court, and if that court had then dismissed for lack of jurisdiction, the 30-day statute of limitation in Section 307(b)(1) would have barred UP&L from seeking review in this Court. Recognizing that the statutory scheme encourages litigants to file petitioners for review in the courts of appeals whenever jurisdiction is in doubt, we urge Congress to adopt the recommendation of the Administrative Conference of the United States and amend Section 307 to provide for transfer between courts of appeals and district courts when a proceeding to review EPA action under the Clean Air Act is filed in the wrong forum. Administrative Conference of the United States, Resolution of December 10, 1976, Judicial Review Under the Clean Air Act and Federal Water Pollution Control Act, reprinted at 41 Fed.Reg. 56767 (Dec. 30, 1976). See Investment Company Institute v. Board of Governors of the Federal Reserve System, 179 U.S.App.D.C. 311 at ___, 551 F.2d 1270, at 1272-73 (1977) (Leventhal, J., concurring).