UTAH INTERNAT'L, INC. v. ENVIRONMENTAL PROTECTION AGCY., 72-1575.
| Decision Date | 27 April 1973 |
| Docket Number | No. 72-1575.,72-1575. |
| Citation | 478 F.2d 126 |
| Parties | UTAH INTERNATIONAL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, and Jicarilla Apache Tribe of Indians, Intervenor Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Harry L. Bigbee, Santa Fe, N. M., and Richard N. Carpenter, New York City, for petitioner.
Bradford E. Whitman, Atty., Dept. of Justice, Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, Chief, App. Section, Land and Natural Resources Div., and Eva R. Datz, Atty., Dept. of Justice, for respondent.
Daniel H. Israel, and Joseph J. Brecher, Boulder, Colo., for intervenor respondent.
Before HILL, SETH and McWILLIAMS, Circuit Judges.
Utah International, Inc., seeks direct review by us of an order of the Environmental Protection Agency entered on July 27, 1972, concerning the State of New Mexico's Implementation Plan as such relates to the attainment and maintenance of national ambient air quality standards for sulphur oxides in the New Mexico portion of the Four Corners Interstate Air Quality Control Region. The order complained of now appears at 37 Fed.Reg., page 15080, et seq. (1972). Background information need only be developed on a limited basis, as we are convinced we are without jurisdiction.
Pursuant to applicable statute the State of New Mexico on January 19, 1972, submitted to the Environmental Protection Agency, hereinafter referred to as the E.P.A., an implementation plan for meeting national primary and secondary air quality standards for six air pollutants, said standards having been theretofore promulgated by the E.P.A. This state plan was approved in part and disapproved in part by the E.P.A. on May 31, 1972. See 37 Fed.Reg. at pages 10842, 10881, et seq. (1972).
On July 27, 1972, the EPA on the basis of further review and evaluation of the plan disapproved certain other provisions of the plan which had been previously approved. At this same time, the E.P.A. also published a notice of proposed rule-making concerning suggested implementation plans to be substituted for the state implementation plans to the extent that the state plans had been thus disapproved.
It was in this setting that Utah International, Inc., hereinafter referred to as Utah, initiated the present proceeding in this court. Utah seeks review of the E.P.A.'s order of July 27, 1972, insofar as that order disapproves certain portions of the New Mexico Implementation Plan which had previously been approved by the E.P.A. In this regard, Utah complains that the E.P.A. did not afford the interested parties a hearing before entering its order disapproving that which it had previously approved.
Utah also complains about that portion of the order of July 27, 1972, wherein the E.P.A. proposed certain regulations to be substituted for the portions of the state plan which had been disapproved. In this regard Utah disclaims any attack on the contents of the regulations proposed by E.P.A., but purportedly seeks only a review of the order proposing the substitute regulations, which order, it is said, would be of no effect if the order of the E.P.A. disapproving certain additional parts of the state plan be held improper.
E.P.A. and the Jicarilla Apache Tribe of Indians, as intervenors, have filed a motion to dismiss, alleging that this court is without jurisdiction to entertain Utah's petition for review. This motion to dismiss having been fully briefed, as well as orally argued, we are convinced that it is well taken and that the petition should be dismissed.
The provisions of the Clean Air Act relating to certain administrative proceedings and judicial review thereof are found in 42 U.S.C. § 1857h-5. Specifically, 42 U.S.C. § 1857h-5(b)(1) provides, in pertinent part, that a "petition for review of the Administrator's action in approving or promulgating any implementation plan * * * may be filed only in the United States Court of Appeals for the appropriate circuit and any such petition shall be filed within 30 days from the date of such promulgation or approval, or after such date...
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