477 F.2d 495 (4th Cir. 1973), 72-1733, Appalachian Power Co. v. E.P.A.

Docket Nº:72-1733, 72-1734,, 72-1776.
Citation:477 F.2d 495
Party Name:APPALACHIAN POWER COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. APPALACHIAN POWER COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. BETHLEHEM STEEL CORPORATION, Petitioner, v. William D. RUCKELSHAUS, Administrator, and Environmental Protection Agency, Respondent.
Case Date:April 11, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 495

477 F.2d 495 (4th Cir. 1973)

APPALACHIAN POWER COMPANY et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

APPALACHIAN POWER COMPANY, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

BETHLEHEM STEEL CORPORATION, Petitioner,

v.

William D. RUCKELSHAUS, Administrator, and Environmental Protection Agency, Respondent.

Nos. 72-1733, 72-1734,, 72-1776.

United States Court of Appeals, Fourth Circuit.

April 11, 1973

Argued Dec. 5, 1972.

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H. Edward Dunkelberger, Jr., Washington, D. C. (Theodore L. Garrett,

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Washington, D. C., Charles C. Wise, Jr., and Thomas C. Damewood, Charleston, W. Va., on brief), for petitioners in Action Nos. 72-1733 and 72-1734.

H. Vernon Eney and Thomas P. Perkins, III, Baltimore, Md. (Anthony M. Carey, Robert G. Smith and Venable, Baetjer & Howard, Baltimore, Md., on brief), for petitioner in Action No. 72-1776.

James R. Moore, Atty., U. S. Dept. of Justice (Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark and Martin Green, Attys., U. S. Dept. of Justice, on brief), for respondents in Action Nos. 72-1733, 72-1734 and 72-1776.

Before RUSSELL, FIELD and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

These proceedings arose under the Clean Air Act Amendments of 1970, 1 which represented a drastic revision of earlier federal air quality control legislation. 2 In enacting the Amendments, Congress was seeking to "make possible the more expeditious imposition (and enforcement both nationally and locally) of specific emission standards" for air pollutants by substantial revisions in the "cumbersome and time-consuming procedures" of the earlier statutes in the field. 3 To achieve this purpose, it sought to involve both state and federal governments by establishing two methods of control, one federal and one state, each complementary of the other, and the two combining and cooperating to assure a healthy air environment throughout the nation under plans specially adapted to the unique conditions of the various states. 4 By national action the Amendments proposed to regulate the amount of pollution in the ambient air and by state action it sought to control the amount of polluting emissions at their source. 5

The federal agency charged with responsibility under the Amendments was the Environmental Protection Agency. The first responsibility of the Administrator of such Agency is to prepare, from time to time, a list of all air pollutants which have an adverse effect on public health or welfare and to issue air quality criteria for these pollutants, reflecting "the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant[s] in the ambient air, in varying quantities." 6 He is then directed by the Amendments to promulgate national primary and secondary ambient air quality standards for each air pollutant for which air quality criteria had been issued. 7 In the promulgation of these national standards, the Administrator, it is argued, is to be

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guided solely by health considerations. 8 He is, also, to issue regulations establishing federal standards of performance for all new stationary sources. Those standards were to be achieved through the use "of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated." 9 The states, on the other hand, are to formulate, after reasonable notice and public hearings, "implementation plans" establishing standards for the control within their borders of sources of pollution, which standards were to be sufficiently stringent to assure that the emission volume from all such sources within those areas did not exceed the national ambient air standards. 10 Stated somewhat differently, the Amendments provided that states, in preparing their own plans for control, could be as tough on polluters as they wished, but that no state could allow industry to exceed the federal standards on smoke and dust, carbon monoxide and other common pollutants. 11

The state plan was to cover existing sources and to take into account new stationary and moving sources. It is expected that states, in exercising their authority under the Amendments, would consider local factors such as "meteorological conditions, topographical context, and economic and social demands." 12

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They are expected, also, to give consideration to control technology and economic factors. 13 Any state implementation plan, however, has to be submitted to the Administrator for approval. The approval of the Administrator requires, inter alia, a finding by him that the plan provided for the attainment of the national primary ambient standards-based on health-within three years, and of the secondary standards-based on welfare-within a reasonable time. 14

Judicial review of the action of the Administrator in approving or disapproving a state plan is authorized before the Circuit Court of Appeals for the Circuit in which the state submitting the plan is located. Application for such judicial review is to be filed within thirty days from the date of the Administrator's approval. Unless reversed on such review, the state implementation plan remains enforceable as federal law under procedures spelt out in the Amendments and is not "subject to judicial review in [federal] civil or criminal proceedings for enforcement." 15

The petitioners are all seeking judicial review of the approval by the Administrator of a state implementation plan submitted under the Amendments. In two of the proceedings, the operators of electric generating plants assail the approval of plans submitted by the States of West Virginia and Virginia. In the third proceeding, Bethlehem Steel Corporation challenges the approval of the plan of the State of Maryland. In approving the state plans involved in all three proceedings, the Administrator held no "hearings", i. e., he granted no opportunity, after public notice, for either comment or testimony on the proposed state plans. Interested parties had, however, been given notice and hearing before the state authorities on the state plans under review. The Administrator did not file, in connection with his approval, either an environmental impact statement or a finding that one was unnecessary. 16

The matter presently before us does not concern the merits of the petitioners' challenge to the Administrator's action.

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The petitioners, by motion, seek remand of the proceedings of approval to the Administrator with instructions that the Administrator provide, after notice, an evidentiary hearing on the approval or disapproval of the state plans and that he file an environmental impact statement in connection with his approval or disapproval. These motions present the issues presently before us. They represent largely procedural questions, though some elements of substance arise. Since all motions pose similar issues, we consolidated them for oral hearing and will dispose of them together.

The initial dispute between the parties centers on the nature or character of the Administrator's action or approval. The petitioners would catalogue that action as rulemaking, as defined in the Administrative Procedure Act, and subject to the hearing requirement fixed in that Act. 17 The Administrator, on the other hand, asserts that "Congress did not intend that this approval process be treated as traditional rulemaking, subject to APA requirements" of a hearing. 18 It is idle, and fruitless, to boggle over the appropriate classification of the Administrator's action, though we cannot avoid observing that the Administrator, in his order of approval, described his action as "rulemaking". Modern precedent has discarded such classifications as criteria for determining the type of hearing to which the parties affected by administrative action are entitled. The leading text on administrative law puts it that the "best solution of the problem of classifying borderline activities is to avoid classifying them * * * [I]f the problem is to determine appropriate procedure for a particular activity, the practical procedural needs may be studied without calling the activity either rule making or something else * * *." 19 Another commentator, who has described attempts at classifying administrative actions as formal, rulemaking or adjudicatory as "largely an unprofitable one," suggests that, "[T]he most constructive way to eliminate many of the inequities and inadequacies which appear from time to time in administrative proceedings is to pay less attention to theoretical, conceptual, and largely artificial lines between adjudication and rule making, and to devote more attention to the task of fashioning, out of the available arsenal of procedural techniques, hybrid modes of procedure most appropriate to the issues and circumstances of particular cases or classes of cases." 20 Following these principles, the firm direction of recent decisions is that "Procedural requirements (dealing with the requirement of hearings in administrative proceedings) depend in part

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on the importance of the issues before the agency" 21 and "The kind of procedure required must take into account the kind of questions involved." 22 Accordingly, if the resulting administrative action, whether regarded as rulemaking or otherwise, "is individual in impact and condemnatory in purpose" 23 or "when the issue presented is one which possesses great substantive importance, or one which is unusually complex or difficult to resolve on the basis of pleadings and argument," 24 a hearing preceding any final administrative action is appropriate. 25 On the other hand, if...

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