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statutes. But the citizen-suit provisions of both Acts require the plaintiff to give the EPA 60 days' notice of the intended district-court action. Congress should make clear that where a non-statutory review action is filed alleging grounds that correspond to those appropriate for the filing of an action under such citizen-suit provisions, failure to comply with the notice requirements of those provisions will require a dismissal of the case.

4. The Clean Air Act and the FWPCA provide that certain regulations reviewable by petition to the courts of appeals "shall not be subject to judicial review in civil or criminal proceedings for enforcement." Moreover, challenges to the validity of regulations must be made in the court of appeals within 30 days (air) or 90 days (water) after promulgation, unless the challenge is based "solely on grounds arising after" the statutory period. The express preclusion of review at the enforcement stage creates a highly unusual and unnecessarily harsh restriction on the right to challenge the validity of a regulation to which one is subject. Congress should amend the Acts to allow the validity of a regulation to be challenged in defense to an enforcement proceeding. It should also amend the Clean Air Act to extend the time limit for filing petitions for review in the court of appeals to 60 days and, for consistency, amend the FWPCA to reduce the 90-day period for filing a petition thereunder to 60 days. Finally, the time limits in both Acts should be made inapplicable where the petitioner can show reasonable grounds for failure to file a timely petition.

5. Not every action of the EPA under the Clean Air Act or the FWPCA is made reviewable in the courts of appeals. Some of the omissions appear to be inconsistent with the general statutory plan, and corrective amendments are desirable.

6. Each of the four judicial review and citizen-suit provisions in the Clean Air Act and the FWPCA presents a different standard for who may petition for review or sue. This leads to undesirable confusion and inconsistency in the administration of the Acts.

Recommendation

A. Venue in the Courts of Appeals.

1. Congress should provide for centralized review of national standards under the FWPCA, as is now provided under the Clean Air Act, by amending Section 509 (b) [33 U.S.C. §1369 (b)] to provide for the review of all such national standards in the Court of Appeals for the District of Columbia Circuit.

2. Congress should further amend Section 509 (b) of the FWPCA to provide that review of regulations, standards or determinations affecting single states or facilities be had in the circuit containing the state or facility.

3. Congress should amend Section 307(b) of the Clean Air Act [42 U.S.C. $1857h-5(b)] to make explicit that the Administrator's action in approving or promulgating state implementation plans is reviewable in the circuit containing the state whose plan is challenged.

4. Courts of appeals, when reviewing cases arising under the Clean Air Act or FWPCA, should utilize existing transfer powers to avoid undue duplication of proceedings, and Congress should amend the Acts or the transfer statute [28 U.S.C. $2112(a)) to remove doubts about the authority of any court of appeals to transfer such cases to any other court of appeals to avoid undue duplication and in the interest of the administration of justice.

B. Choice between District Court and Court of Appeals for Review.

1. Congress should amend the citizen-suit provisions of the Clean Air Act [Section 304, 42 U.S.C. $1857h-2] and FWPCA [Section 505, 33 U.S.C. §1365] to make clear that, insofar as suits against the Administrator of the EPA are concerned, these sections do not provide an alternative or premature method of review of questions that can be raised under the sections that provide for direct review of the EPA's actions in the courts of appeals [Section 307(b), 42 U.S.C. $1857h-5(b); Section 509, 33 U.S.C. §1369].

2. Congress should amend the Clean Air Act and FWPCA to provide that courts of appeals have exclusive jurisdiction of actions to compel or to postpone the issuance or revision of regulations whose validity is to be determined in a court of appeals. The amendments should provide that where there is need for the development of a factual record, prior resort or remand shall be made to the EPA or, if that is inappropriate, to the district court.

3. Congress should provide, by analogy to 28 U.S.C. $1506, for transfer between courts of appeals and district courts when a proceeding to review EPA action under the Clean Air Act or FWP CA is filed in the wrong forum.

C. Limitation of Non-Statutory Review.

Congress should amend the statutes to make clear that when a non-statutory review action is filed alleging grounds that correspond to those appropriate for the filing of a citizen suit under Section 304 of the Clean Air Act [42 U.S.C. $1857h-2] or Section 505 of the FWPCA [33 U.S.C. $1365], failure to comply with the notice requirements of those sections will require a dismissal of the case.

D. Raising Defenses at the Enforcement Stage.

1. Congress should amend the Clean Air Act and FWPCA to permit the validity of a regulation to be challenged in defense to an enforcement proceeding.

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2. Congress should amend Section 307 (b) of the Clean Air Act (42 U.S.C. $1857h-5(b)] and Section 509 (b) of the FWPCA [33 U.S.C. §1369 (b)] to prescribe 60 days as the period within which, under both statutes, a petition for review must be filed in the courts of appeals.

3. Congress should amend the Clean Air Act and FWP CA to ensure that petitions for review of regulations may be filed after the expiration of the time limits of Sections 307(b) and 509 (b), when the petitioner can show a reasonable ground for failure to file a timely petition.

E. Actions Subject to Court-of-Appeals Review.

1. Congress should amend Section 509 (b) of the FWPCA [33 U.S.C. §1369 (b)] to make clear that the following actions by the EPA are reviewable in the courts of appeals:

8.

Promulgation or approval of water-quality standards under

Section 303 [33 U.S.C. $1313].

$1314).

b. Promulgation of effluent guidelines under Section 304 [33 U.S.C.

c. Promulgation of regulations governing the discharge of oil or hazardous substances under Section 311(b) [33 U.S.C. §1321(b)].

d. Promulgation of standards for marine sanitation devices under Section 312 [33 U.S.C. $1322] or determinations that a state may completely prohibit the discharge from all vessels of any sewage under Section 312(f) [33 U.S.C. $1322(f)].

2. Congress should amend the Clean Air Act to make those new-car emission standards not now reviewable under Section 307(b) [42 U.S.C. $1857h-5 (b)), reviewable in the courts of appeals.

F. Standing.

Congress should adopt a single test of standing to govern all proceedings for judicial review under the Clean Air Act and FWP CA.

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This Report represents the analysis of the consultant. Recommendations derived from an earlier draft of this Report were approved by the Committee on Judicial Review and adopted by the Administrative Conference at its Fifteenth Plenary Session, December 9, 1976. (Recommendation No. 76-4,)

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In an effort to remedy "uncertainties" in the predecessor statutes, which were silent on the subject, both the Clean Air Act and the Federal Water Pollution Control Act were amended in the early 1970's to include explicit provisions for judicial review. Experience has shown, however, that uncertainties persist; the time has come for legislative re-examination.

Both statutes are administered by the Environmental Protection Agency. Both are extraordinarily complicated. Both preserve provisions for federal research and training

programs, 2 for financial assistance to state control

programs,

3/ and for the encouragement of uniform state

laws and interstate control agencies. The water statute provides grants for the construction of publicly owned treatment facilities;

5/

the air statute retains in

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