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Administrative Law Keyed to Breyer
Dominion Energy Brayton Point, LLC v. Johnson
Citation:
443 F.3d 12 (2006)Facts
Dominion Energy owned an electrical generating facility in Somerset, Massachusetts that used an “open-cycle” cooling system, withdrawing water from nearby rivers for cooling and then discharging the heated water into Mount Hope Bay. These actions were regulated by NPDES permits issued by the EPA under the Clean Water Act. In 1998, Dominion applied to renew its permit and thermal variance authorization. The EPA issued a proposed final permit in 2003, rejecting the thermal variance. Dominion sought review and requested an evidentiary hearing, which the EPA denied under its revised regulations that had eliminated formal evidentiary hearings from the NPDES permitting process. This revision was based on the EPA’s interpretation of the CWA after the Supreme Court’s Chevron decision. Dominion filed suit, arguing that under the First Circuit’s prior Seacoast decision, the EPA had a non-discretionary duty to provide an evidentiary hearing.
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