Duquesne Light Co. v. Environmental Protection Agcy., 72-1542

• Citation: 481 F.2d 1
• Decision Date: 05 June 1973
• Docket Number: 72-1543.,No. 72-1542,72-1542
• Parties: DUQUESNE LIGHT COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY. ST. JOE MINERALS CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

481 F.2d 1 (1973)

DUQUESNE LIGHT COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY.

ST. JOE MINERALS CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY.

Nos. 72-1542, 72-1543.

United States Court of Appeals, Third Circuit.

Argued April 2, 1973.

Decided June 5, 1973.

David McNeil Olds, John McN. Cramer, Reed Smith Shaw & McClay, Pittsburgh, Pa., for petitioners.

Edmund B. Clark, Kent Frizzell, John E. Varnum, Bradford F. Whitman, U. S. Dept. of Justice, Land and Natural Resources Div., Pollution Control Section, Washington, D. C., for respondent.

Before ADAMS, ROSENN and HUNTER, Circuit Judges.

OPINION SUR RESPONDENT'S MOTION FOR CLARIFICATION

ADAMS, Circuit Judge.

Resolution of the motion presently before the Court¹ requires that we address difficult procedural problems arising from the recently enacted programs for the abatement of air pollution.

Duquesne Light Company (Duquesne), Pennsylvania Power Co. and Ohio Edison Co. are engaged in Western Pennsylvania in the generation of electric power by burning coal. St. Joe Minerals Corp. (St. Joe) produces electricity and zinc, also using coal as the fuel. Pursuant to the new clean air programs, Pennsylvania enacted a series of regulations, comporting with federal standards and federally enforceable. Duquesne, Pennsylvania Power, Ohio Edison and St. Joe (collectively, the companies), required by the Pennsylvania regulations to limit their emission into the air of polluting sulphur oxides, challenged the Federal Environmental Protection Agency's (EPA) adoption and potential enforcement of these restrictions in the absence of hearings, inter alia, and petitioned this Court to remand the matter to the EPA for such a proceeding.

Although the remand motions requested several alternative forms of relief, the order of this Court, granting the motions, did not specify which among the several types of relief was to be afforded. The EPA, opposing the remand directive, filed the motion that we now consider. This motion styled a "Motion for Clarification, or in the Alternative Petition for Rehearing," is responsive to the Court's original order, which in all candor was somewhat enigmatic. This opinion will endeavor to dispel the uncertainty.

Unsnarling the rather intricate procedural knot presented by the motion currently before us requires a careful tracing of the several strands comprising it. This task, in turn, entails an examination of: (1) the Clean Air Act Amendments of 1970 (Act or Clean Air Act) 42 U.S.C. §§ 1857-1858a, (2) the division of authority between states and the EPA contemplated by the Act, (3) the bearing of the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., on the Clean Air Act, (4) the implications of this Court's decision in Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S. Ct. 937, 35 L.Ed.2d 256 (1973), and (5) the requirements of due process as mandated by the Fifth Amendment.

I. THE LEGISLATIVE SCHEMA

In enacting the Clean Air Act Amendments of 1970, Congress attempted to foster a symbiosis between two perceived needs. First, Congress wanted to preserve the basic state and local control of the design and enforcement of air pollution regulations. Besides a deference to the states, such a state role permitted more awareness of individual and local problems to be considered in formulating pollution abatement plans.

Second, Congress sensed that there was a rising dissatisfaction with the results being attained by the states, operating under the then existing legislation. Therefore, there was a desire for federal standards and enforcement. Further, Congress, apprised of the public concern, manifested its insistence on expedition in cleaning the air.²

The result of these two conflicting strains was that Congress in the 1970 Amendments, devised a system in which certain aspects of the pollution control effort were assigned exclusively to the EPA, other aspects being entrusted to the states under federal supervision.

An understanding of the EPA's role in the bi-level program established by the Clean Air Act requires a brief exposition of the sections of the Act pertinent to the dispute here. Section 108 of the Act³ mandated that within thirty days after December 31, 1970, the Administrator of the EPA was to determine which emissions into the air were pollutants, adversely affecting public health or welfare. Section 109⁴ dictated that roughly contemporaneously, he was to promulgate regulations establishing national primary and secondary ambient air quality standards.⁵ These standards defined the maximum concentration to be permitted in the air of any pollutant ascertained under section 108. Written comments by interested parties were to be submitted prior to the final promulgation of these standards, and following Kennecott Copper Corp. v. Environmental Protection Agency, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972), the Agency was to provide statements in support of its proposed regulations.⁶ Thus, pursuant to sections 108 and 109, the Administrator was to determine the minimum acceptable level in the air of any particular pollutant. Section 110⁷ defined the procedures to be followed to achieve and then maintain these or higher standards of cleanliness. Because the attainment required that choices be made between different sources of pollutants, with some sources perhaps more severely restricted than others, the Act left to the states the drafting of plans for reaching these federally established standards. More specifically, § 110(a)(1)⁸ required that, within nine months of the Administrator's promulgation of the ambient air standards, each state was to adopt and submit to the Administrator a plan that would bring the air quality within the state at a minimum, to the federally mandated levels. The "state implementation plan" was to be enacted only after reasonable notice and hearings were held by the state.

Section 110 then continues:

"The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or each portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing."⁹

The question of which procedures are required of the Administrator, if any, in determining whether to approve a state implementation plan as provided in § 110(a)(2), forms the core of this case.

After approval of a state implementation plan, the regulations contained therein, presumably already enforceable by the state,¹⁰ become enforceable by the federal government as well. Section 113 of the Act¹¹ provides that, after permitting a period of thirty days to pass, perhaps to allow the state to initiate an action, the Administrator, having found a violation of the implementation plan, may impose civil and criminal sanctions upon the violator.¹² This enforcement aspect of the statute is a final step in delineating the cooperating and supplementing roles that are prescribed for the states and the EPA.

Review by federal courts of actions taken by the Administrator is circumscribed by section 307(b)(1).¹³ It provides that petitions for review of the Administrator's actions approving implementation plans are to be filed in the United States Court of Appeals for the appropriate Circuit,¹⁴ within thirty days of the date of the Administrator's approval. Subsection (2) of 307(b)¹⁵ forecloses later litigation in enforcement proceedings of issues for which review could have been had under section 307(b)(1).

II. THE PENNSYLVANIA PLAN'S ADOPTION

The Administrator, in August, 1971, published guidelines for the preparation, adoption and submission of state plans,¹⁶ and required that state implementation plans be submitted by January 31, 1972. Following the statute's instructions, the Commonwealth of Pennsylvania gave notice that hearings were to be held regarding its proposed plans. Four hearings, focusing on controlling sulphur oxide emission, a pollutant designated under section 108 and quantitatively described under section 109, were held in Philadelphia, Harrisburg and Pittsburgh, from December 1-4, 1971.¹⁷ At the Pittsburgh session of the hearings, Duquesne, through Mr. L. R. Love, General Superintendent of the Power Stations Department, Pennsylvania Power by Mr. C. B. Shell, Vice-President, and St. Joe, through Mr. Charles P. Henderson, Manager of the Zinc Smelting Division, appeared. Each presented evidence to the members of the Environmental Quality Board, in the form of oral testimony and written statements.

After the hearings terminated, a plan including sulphur oxide restrictions was adopted and submitted by Pennsylvania, on January 27, 1972. The Administrator, in late May, 1972, without further proceedings, approved the plan in part and disapproved it in part.¹⁸ Within the thirty days required by Section 307(b)(1), Duquesne and St. Joe filed petitions in this Court challenging the Administrator's actions regarding the approved portions of the Pennsylvania plan. The companies, arguing that the approved plan included unreasonable requirements, sought to have the matter remanded to the EPA. They asked that the reconsideration of the Pennsylvania Implementation Plan be conducted as either an adjudicative-type hearing, pursuant to Section 5 of the Administrative Procedure Act, (APA),¹⁹ or a rule-making hearing, following Section 4 of the APA.²⁰ The companies further sought to have this Court require that the EPA, prior to approving the plan, file a detailed environmental impact statement as described in Sections 102(2)(C) and (D) of the National Environmental Policy Act.²¹ On January 22, 1973, this Court granted a motion for remand without specifying the type of procedure to be followed by the EPA. The EPA's motion, asking this Court to clarify the order or to rehear the matter, requires an examination of the various...