446 U.S. 578 (1980), 78-1918, Harrison v. PPG Industries, Inc.

Docket Nº:No. 78-1918
Citation:446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525
Party Name:Harrison v. PPG Industries, Inc.
Case Date:May 27, 1980
Court:United States Supreme Court
 
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Page 578

446 U.S. 578 (1980)

100 S.Ct. 1889, 64 L.Ed.2d 525

Harrison

v.

PPG Industries, Inc.

No. 78-1918

United States Supreme Court

May 27, 1980

Argued January 16, 1980

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

As authorized by the Clean Air Act (Act), the Environmental Protection Agency (EPA) decided, on the basis of correspondence with respondents, that certain equipment at a power generating facility of respondent PPG Industries, Inc. (PPG), was subject to certain "new source" performance standards regarding air pollution that had been promulgated by the EPA Administrator. PPG then filed a petition in the Court of Appeals for review of the EPA's decision under § 307(b)(1) of the Act, which provides for direct review in a federal court of appeals of certain locally and regionally applicable actions taken by the Administrator under specifically enumerated provisions of the Act, and of "any other final action of the Administrator under [the] Act . . . which is locally or regionally applicable." Because of its uncertainty as to the proper forum for judicial review, PPG also filed suit for injunctive relief against the Administrator in a Federal District Court, which suit was stayed pending the disposition of the present case. The Court of Appeals dismissed PPG's petition for lack of jurisdiction under § 307(b)(1).

Held: The phrase "any other final action" in § 307(b)(1) is to be construed in accordance with its literal meaning so as to reach any action of the Administrator that is final, not just final actions of the Administrator similar to actions under the specifically enumerated provisions that precede the catchall phrase in the statute. Pp. 586-594.

(a) The rule of ejusdem generis does not apply to § 307(b)(1) so as to limit "any other final action" to actions similar to those under the specifically enumerated provisions on the theory that the latter actions (unlike the Administrator's informal decision here) must be based on administrative proceedings reflecting at least notice [100 S.Ct. 1891] and opportunity for a hearing. At least one of the specifically enumerated provisions in § 307(b)(1) does not require the Administrator to act only after notice and opportunity for a hearing, and thus, even if the rule of ejusdem generis were applied, it would not significantly narrow the ambit of "any other final action" under § 307(b)(1). Moreover,

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the rule of ejusdem generis is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty, and the phrase "any other final action" offers no indication whatever that Congress intended such a limiting construction of § 307(b)(1). Pp. 587-589.

(b) Nothing in the legislative history supports a conclusion that the phrase "any other final action" in § 307(b)(1) means anything other than what it says, or that Congress did not intend the phrase to enlarge the jurisdiction of the courts of appeals to include the review of case based on an administrative record reflecting less than notice and an opportunity fr a hearing. Pp. 589-59.

(c) The argument that, as a matter of policy, the basic purpose of § 307(b)(1) -- to provide prompt preenforcement review of EPA action -- would be better served by providing in cases such as this for review in a district court, rather than a court of appeals, is an argument to be addressed to Congress, not to this Court. Pp. 592-594.

587 F.2d 237, reversed and remanded.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 594. BLACKMUN, J., filed an opinion concurring in the result, post, p. 595. REHNQUIST, J., post, p. 595, and STEVENS, J., post, p. 602, filed dissenting opinions.

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

Section 307(b)(1) of the Clean Air Act (Act) provides for direct review in a federal court of appeals of certain locally and regionally applicable actions taken by the Administrator of the Environmental Protection Agency (EPA) under specifically enumerated provisions of the Act, and of "any other final action of the Administrator under [the] Act . . . which is locally or regionally applicable." (Emphasis

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added.)1 The issue in this case is whether the Court [100 S.Ct. 1892] of Appeals for the Fifth Circuit was correct in concluding that it was without jurisdiction under § 307(b)(1) to entertain a petition for review in which PPG Industries, Inc. (PPG),

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and Conoco, Inc. (Conoco), the respondents here, challenged a decision of the Administrator concerning the applicability of EPA's "new source" performance standards to a power generating facility operated by PPG. More specifically, we must decide whether the Administrator's decision falls within the ambit of "any other final action" reviewable in a court of appeals under § 307(b)(1).

I

The dispute underlying this jurisdictional question involves a decision of the Administrator under § 111 of the Act, 42 U.S.C. § 7411 (1976 ed., Supp. II). That provision requires the Administrator to publish, and from time to time to revise, a list of categories of any stationary source that he determines "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare," § 111(b)(1)(A), and to promulgate regulations establishing standards of performance for "new sources" within the list of those categories, § 111(b)(1)(B). The Act defines a "new source" as

any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source.

§ 111(a)(2).

In 1971, the Administrator included "fossil fuel-fired steam generators" in his list of stationary sources. 36 Fed.Reg. 5931. Later that year, pursuant to his mandate to promulgate "new source" performance standards, the Administrator established certain emission limits for any "fossil fuel-fired steam generating unit" of more than 250 million Btu's per hour heat input, the construction or modification of which was commenced after August 17, 1971, the date on which the standards were proposed. 40 CFR §§ 60.1-60.15, 60.40-60.46 (1979). These "new source" regulations define the term "fossil fuel-fired steam generating unit," § 60.41(a), and also create a procedure under which the Administrator, upon

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request, will determine whether any action taken or planned by the owner or operator of a facility constitutes or will constitute "construction" or "modification" of the facility for purposes of triggering the applicability of the performance standards. § 60.5.

Sometime in 1970, the respondent PPG, a chemical manufacturing corporation, began the planning and preliminary construction of a new power generating facility at its plant in Lake Charles, La. That facility, designed to take advantage of fuel-efficient "cogeneration" technology, was to consist of two gas turbine generators, two "waste-heat" boilers, and a turbogenerator. The dispute between EPA and PPG concerns the applicability of the "new source" performance standards to the waste-heat boilers of this facility. This controversy first arose in 1975, when the respondent Conoco, PPG's fuel supplier, informed EPA that Conoco was switching the supply of fuel to the Lake Charles facility from natural gas to fuel oil. An exchange of correspondence ensued, initiated by EPA's request that PPG submit additional information bearing on whether the waste-heat boilers were covered by the "new source" standards. PPG's submissions revealed that, although assembly of the waste-heat boilers had not begun until 1976, the new power facility itself, of which the boilers were an integral component, had been originally designed and partially ordered in 1970, a year before the proposed date of the "new source" performance standards.

On the basis of PPG's submissions, the Regional Director for Enforcement of the EPA notified PPG of his conclusion that the boilers were subject to the "new source" standards, since construction of the boilers themselves had not begun until long after January 14, 1971, the date on which the standards had been proposed. In response, PPG took the position that the boilers were part of an integrated unit, the construction [100 S.Ct. 1893] of which had begun in 1970, before the proposed date of the standards. The Regional Director, nevertheless, reaffirmed his initial decision.

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Pursuant to the procedure outlined in the "new source" regulations, 40 CFR § 60.5 (1979), PPG then submitted a formal request for an EPA determination that (1) the "new source" standards for "fossil fuel-fired steam generators" do not apply to the type of boilers in question, and (2) in any event, since construction of the facility of which the boilers were a part began before the date on which the standards were proposed, the boilers were not "new sources," and thus not subject to the performance standards. In the event that EPA determined that PPG's waste-heat boilers were subject to the standards, PPG also requested a clarification as to how those standards would apply.

Responding to PPG's request, the Regional Administrator notified PPG by letter that he had concluded that the waste-heat boilers were, indeed, subject to the "new source" standards for "fossil fuel-fired steam generators," and rejected PPG's argument that construction of the boilers had begun with the construction of other facets of the Lake Charles facility. Thus, the Regional Administrator affirmed the previous EPA determination that the waste-heat boilers were subject to the "new source" performance standards. With regard to the manner in which those standards were...

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