U.S. Code » Title 33 » Chapter CHAPTER 26— WATER POLLUTION PREVENTION AND CONTROL › Subchapter SUBCHAPTER V— GENERAL PROVISIONS

33 U.S.C. § 1369

Administrative procedure and judicial review

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(a) Subpenas(1) For purposes of obtaining information under section 1315 of this title, or carrying out section 1367(e) of this title, the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths. Except for effluent data, upon a showing satisfactory to the Administrator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes, the Administrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18, except that such paper, book, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this chapter, or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subsection, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Administrator, to appear and produce papers, books, and documents before the Administrator, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.(2) The district courts of the United States are authorized, upon application by the Administrator, to issue subpenas for attendance and testimony of witnesses and the production of relevant papers, books, and documents, for purposes of obtaining information under sections 1314(b) and (c) of this title. Any papers, books, documents, or other information or part thereof, obtained by reason of such a subpena shall be subject to the same requirements as are provided in paragraph (1) of this subsection.(b) Review of Administrator’s actions; selection of court; fees(1) Review of the Administrator’s action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any permit under section 1342 of this title, and (G) in promulgating any individual control strategy under section 1314(l) of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person. Any such application shall be made within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day.(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) of this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement.(3)Award of fees.—In any judicial proceeding under this subsection, the court may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party whenever it determines that such award is appropriate.(4)Discharges incidental to normal operation of vessels.—(A)In general.—Except as provided in subparagraph (B), any interested person may file a petition for review of a final agency action under section 1322(p) of this title of the Administrator or the Secretary of the department in which the Coast Guard is operating in accordance with the requirements of this subsection.(B)Venue exception.—Subject to section 1322(p)(7)(C)(v) of this title, a petition for review of a final agency action under section 1322(p) of this title of the Administrator or the Secretary of the department in which the Coast Guard is operating may be filed only in the United States Court of Appeals for the District of Columbia Circuit.(c) Additional evidence

In any judicial proceeding brought under subsection (b) of this section in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original determination, with the return of such additional evidence.

(June 30, 1948, ch. 758, title V, § 509, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 891; amended Pub. L. 93–207, § 1(6), Dec. 28, 1973, 87 Stat. 906; Pub. L. 100–4, title III, § 308(b), title IV, § 406(d)(3), title V, § 505(a), (b), Feb. 4, 1987, 101 Stat. 39, 73, 75; Pub. L. 100–236, § 2, Jan. 8, 1988, 101 Stat. 1732; Pub. L. 115–282, title IX, § 903(c)(4), Dec. 4, 2018, 132 Stat. 4356.)Editorial NotesAmendments

2018—Subsec. (b)(4). Pub. L. 115–282 added par. (4).

1988—Subsec. (b)(3), (4). Pub. L. 100–236 redesignated par. (4) as (3) and struck out former par. (3) relating to venue, which provided for selection procedure in subpar. (A), administrative provisions in subpar. (B), and transfers in subpar. (C).

1987—Subsec. (b)(1). Pub. L. 100–4, §§ 308(b), 406(d)(3), 505(a), substituted “transacts business which is directly affected by such action” for “transacts such business”, “120” for “ninety”, and “120th” for “ninetieth”, substituted “1316, or 1345 of this title” for “or 1316 of this title” in cl. (E), and added cl. (G).

Subsec. (b)(3), (4). Pub. L. 100–4, § 505(b), added pars. (3) and (4).

1973—Subsec. (b)(1)(C). Pub. L. 93–207 substituted “pretreatment” for “treatment”.

Statutory Notes and Related SubsidiariesEffective Date of 1988 Amendment

Amendment by Pub. L. 100–236 effective 180 days after Jan. 8, 1988, see section 3 of Pub. L. 100–236, set out as a note under section 2112 of Title 28, Judiciary and Judicial Procedure.

Notes of Decisions
Cited in 341 cases (20 in the last 5 years), 1974–2026 · leading case: Nat'l Assn. of Mfrs. v. Dep't of Def., 138 S. Ct. 617 (2018).
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Nat'l Assn. of Mfrs. v. Dep't of Def., 138 S. Ct. 617 (2018). · cites it 6× “” 33 U. S. C. §1369 (b)(1)(E). The WOTUS Rule does not fall within that provision.”
S. California All. of Publicly Owned Treatment Works v. U.S. Env't Prot. Agency, 853 F.3d 1076 (9th Cir. 2017). · cites it 16× “SCAP argues that we have original jurisdiction to review the objection letter under 33 U.S.C. § 1369 (b)(1)(E), which applies to EPA action “approving or promulgating any effluent limitation,” and 33 U.”
Save the Bay, Inc. v. Adm'r of the Env't Prot. Agency, 556 F.2d 1282 (5th Cir. 1977). · cites it 12× “Our jurisdiction, if any, must be found in § 509(b)(1) of the Amendments, 33 U.S.C. § 1369 (b)(1), a limited grant of original jurisdiction to the Court of Appeals: (b)(1) Review of the Administrator’s action (A) in promulgating any standard of performance under section 1316 of…”
Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Assn., 453 U.S. 1 (1981). · cites it 4× “In addition, under § 509 (b), 33 U. S. C. § 1369 (b), "any interested person" may seek judicial *14 review in the United States courts of appeals of various particular actions by the Administrator, including establishment of effluent standards and issuance of permits for…”
Narragansett Elec. Co. v. United States Env't Prot. Agency, 407 F.3d 1 (1st Cir. 2005). · cites it 11× “Not liking the EPA’s response, the successor to the defendant in the initial action filed suit directly in this court, asserting that the courts of appeals have original jurisdiction under 33 U.S.C. § 1369 (b), which grants direct appellate review of certain actions under the…”
Rhode Island v. United States Env't Prot. Agency, 378 F.3d 19 (1st Cir. 2004). · cites it 6× “33 U.S.C. § 1369 (b)(1)(F). II. FACTUAL AND PROCEDURAL BACKGROUND This case involves the Brayton Point power plant, operated by USGen New England, Inc.”
Nw. Env't Advocates v. United States Env't Prot. Agency, 537 F.3d 1006 (9th Cir. 2008). · cites it 5× “At the same time, as a protective measure in the event that the district court lacked jurisdiction, the plaintiffs filed directly with this court a petition for review of the EPA Decision on Petition, pursuant to jurisdictional provisions contained in 33 U.S.C. § 1369 (b)(1). In…”
Nat. Resources Def. Council v. United States Env't Prot. Agency, 526 F.3d 591 (9th Cir. 2008). · cites it 6× “PROCEDURAL POSTURE & ISSUES PRESENTED On June 23, 2006, NRDC petitioned this Court for direct review of EPA's action pursuant to 33 U.S.C. § 1369 (b)(1) and Federal Rule of Appellate Procedure 15.”
Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). · cites it 2× “2 On April 2, 2003, respondents filed a petition in the United States Court of Appeals for the Ninth Circuit seeking review of the transfer pursuant to 33 U.S.C. § 1369 (b)(1)(D), which allows private parties to seek direct review of the EPA's determinations regarding state…”
Friends of the Earth v. United States Env't Prot. Agency, 333 F.3d 184 (D.C. Cir. 2003). · cites it 10× “EPA has moved to dismiss FOE’s petitions, arguing that we lack subject matter jurisdiction under 33 U.S.C. § 1369 (b)(1) to review the approval or establishment of TMDLs made pursuant to section 1313(d).”
Nat. Resources Def. Council, Inc. v. U.S. Env't Prot. Agency, Chem. Mfrs. Ass'n, Intervenors, 703 F.2d 700 (3rd Cir. 1983). · cites it 5× “1982), the Natural Resources Defense Council (NRDC) filed a petition for review under section 509(b)(1) of the Clean Water Act, 33 U.S.C. § 1369 (b)(1) (1976). NRDC sought review of the Environmental Protection Agency’s (EPA’s) indefinite postponement of the effective date of…”
Am. Iron & Steel Inst. v. Env't Prot. Agency, Nat'l Steel Corp. v. Env't Prot. Agency, 543 F.2d 521 (3rd Cir. 1976). · cites it 14× “33 U.S.C. § 1369 (b)(1)(F) (Supp.1976). Since no permit has either been issued or denied, EPA initially sought to dismiss the petition by motion.”
Show all 341 citing cases →
— 33 U.S.C. § 1369(b) — 1 case
Ringbolt Farms Homeowners Ass'n v. Town of Hull, 714 F. Supp. 1246 (D. Mass. 1989).
— 33 U.S.C. § 1369(b)(1) — 1 case
Waterkeeper All. v. EPA (6th Cir. 2016).
— 33 U.S.C. § 1369(b)(1)(E) — 1 case
Nat. Resources Def. Council, Inc. v. Howard D. Zeller, Proj. Mgmt. Corp., Intervenors-Appellants, 688 F.2d 706 (11th Cir. 1982).
— 33 U.S.C. § 1369(b)(1)(F) — 1 case
Tenneco Oil Co. v. Env't Prot. Agency, 592 F.2d 897 (5th Cir. 1979).
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