Union Elec. Co. v. E.P.A.

Decision Date27 March 1975
Docket NumberNo. 74-1614,74-1614
Citation515 F.2d 206
Parties, 6 Envtl. L. Rep. 20,259 UNION ELECTRIC COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
CourtU.S. Court of Appeals — Eighth Circuit

William H. Ferrell, St. Louis, Mo., for petitioner.

Thomas A. Pursell, III, Atty., Land & Natural Resources Div., U. S. Dept. of Justice, Washington, D. C., for respondent.

Walter W. Nowotny, Jefferson City, Mo., for intervenor, State of Mo.

Before GIBSON, Chief Judge, HEANEY and ROSS, Circuit Judges.

GIBSON, Chief Judge.

Petitioner, Union Electric Company, asserts that because of cost factors it is impossible or in the alternative that it is manifestly against public interest for it to comply with emission control standards contained in the Missouri implementation plan approved by the Administrator of the Environmental Protection Agency (EPA), the Respondent herein. In this vital area of public power, Union Electric seeks relief from compliance with these standards by this original proceeding filed in this court pursuant to § 307(b)(1) of the Clean Air Act Amendments of 1970. This section allows consideration of a petition for review filed more than 30 days after the Administrator's approval or promulgation of a state implementation plan if such petition "is based solely on grounds arising after such 30th day." 1 While there have been many petitions filed challenging implementation plans within 30 days of the Administrator's approval, 2 so far as we know this is the first petition for review filed pursuant to § 307(b) after the initial 30 day period. 3

At the outset we are confronted with the critical question of what are we to review. None of the contentions of the Petitioner have been presented to the Administrator nor have they been presented to the Missouri Air Conservation Commission for possible action, except in the limited manner discussed herein. We realize we are treading uncharted waters, and though sympathetic with the economic, technological and legal problems confronting the Petitioner, we hold for the reasons hereafter set forth that we lack jurisdiction to consider the issues raised in the petition for review.

Background of This Litigation

The Administrator approved the Missouri implementation plan pursuant to § 110 of the 1970 Amendments 4 on May 31, 1972. 5 A portion of the approved implementation plan, Regulation X, § B, restricts the emission of sulfur dioxide into the ambient air. Union Electric Company operates three coal-burning electric power generating plants in the Greater St. Louis area that are subject to the sulfur dioxide restrictions contained in the Missouri implementation plan. It alleges that it cannot comply with these restrictions, short of shutting down the plants, an event which, in the Petitioner's words, would "result in an immediate cessation of civilized life as we know it." 6

Petitioner has variance applications pending in various stages of the administrative process in the State of Missouri. 7 However, while awaiting state decisions, Union Electric was notified on May 31, 1974, by the Administrator that its plants were in violation of the sulfur dioxide emission regulations. The present petition was filed August 18, 1974, requesting that we review that portion of the Missouri implementation plan approved by the Administrator which limits sulfur dioxide emissions. Our jurisdiction depends upon whether the grounds that Union Electric asserts in its petition for review arise solely after the initial 30 day period for seeking review. 8 The Respondent and Intervenors, State of Missouri and the Missouri Air Conservation Commission, have filed motions to dismiss the petition, contending that we lack jurisdiction.

The Statute

The Clean Air Act Amendments of 1970 were intended, as the preamble sets out, "to provide for a more effective program to improve the quality of the Nation's air." To accomplish this the Amendments set a timetable for reducing the pollution of the ambient air 9 to at least national standards set to assure the public health and welfare. National primary ambient air standards are set by the Administrator at levels he determines are requisite to protect the public health 10 and are required to be met within three years from the approval of a state implementation plan. 11 National secondary ambient air standards specify a level of air quality requisite to protect the public welfare 12 from known or anticipated adverse effects, 13 and are to be attained within a reasonable time. 14

The scheme of the Amendments provides for strict federal oversight of state action to reach the mandated air quality goals. This interaction was summarized in Natural Resources Defense Council, Inc. v. E. P. A., 483 F.2d 690, 691-92 (8th Cir. 1973): 15The 1970 Amendments require each state to submit to the Administrator a plan for implementation, maintenance, and enforcement of the federal standards * * *. The plan must be designed to achieve primary standards as expeditiously as practicable, but in no case later than three years from the date of approval of such plan, and secondary standards within a reasonable time * * *. The Administrator is to approve or disapprove each portion of the plan depending on whether it conforms with the prescribed deadlines for attainment of national standards and with other criteria set out in § 1857c-5(a)(2). If any plan or portion thereof fails to conform to statutory requirements, the Administrator ultimately is directed to promulgate such regulations as may be necessary to cure the deficiency(.) (emphasis in original, footnote omitted).

Upon approval or promulgation of a state implementation plan, the requirements thereof have the force and effect of federal law and may be enforced by the Administrator in federal courts. 16 The state may enforce its regulations through state proceedings, 17 and citizens' suits in limited circumstances were provided as an additional method of enforcement by Section 304. 18

Jurisdiction

All the parties to this proceeding agree that if we have jurisdiction it must be by virtue of grounds solely arising after the 30 days from the Administrator's approval. This last phrase of § 307(b), unless we adopt a position that controverted allegations are sufficient to sustain jurisdiction, would require this court to engage in fact-finding as to whether the grounds arose solely after 30 days of approval to determine our jurisdiction. While the Courts of Appeals are not generally viewed as courts of original jurisdiction, we entertain no doubt but that Congress could, if it so chose, require that we engage in just such a fact-finding process, though our facilities for doing so are awkward and limited. Recognizing that the grounds it posits for review would require such a course, Union Electric contends that this was the intention of Congress and that we have inherent power to appoint a master to assist our resolution of disputed factual issues. 19 However, as such a course would be so far removed from the normal method of operation of an appellate court 20 and § 307(b)(1) speaks in terms of "review," we believe such an intention on the part of Congress should be manifestly clear before we undertake the course suggested by Petitioner.

Respondent EPA and the Intervenors argue, inter alia, that the grounds Union Electric asserts as a basis for review do not arise "solely" after the 30 day period. Yet, in passing upon the motions to dismiss, we hesitate to rest our decision on that basis, for to do so would require us to engage in just that fact-finding process we are unsure was contemplated by Congress. We will thus assume for the determination of the question of our jurisdiction that Union Electric's grounds for review do in fact arise solely after the initial 30 day period for review.

There is a certain measure of ambiguity in § 307(b)(1). The section speaks in terms of a petition for review, not an original proceeding. If we accept Union Electric's argument, there would be no record to review. EPA, the Intervenors, and amicus, Coalition for the Environment, assert that questions of economic and technological feasibility do not constitute grounds for review as that term is used in § 307. This position provides a compelling basis for rejection of several of the grounds asserted by Union Electric. However, as the potential grounds for review are not set out in the statute, we must look to the legislative history to determine whether this argument has merit. 21 Before consideration of the legislative history, it is necessary at this point to look to what the Administrator is required to do by statute, as it is his actions that we must review, and to establish what the standard of review of his action is under § 307(b)(1).

Duties of the Administrator

Our review under § 307 is only of the Administrator's action in approving or promulgating a state implementation plan. In determining whether to approve or disapprove a state implementation plan, the Administrator's discretion is limited by the clear terms of the Act. He shall approve any state implementation plan which meets the requirements of § 110(a)(2). 22 In addition, the fact that States may adopt and enforce emission standards and control strategies even more stringent than the federal 23 serves to further limit the discretionary area of his authority to approve or disapprove an implementation plan.

The Administrator argues that as he cannot consider economic and technological feasibility in approving or disapproving implementation plans, Congress could not have intended to allow these questions to be raised in a petition for review. In a similar vein, the Coalition for the Environment asserts that we are limited in our review to those matters which, had they been in existence and known to the Administrator at the time of his approval or promulgation of the implementation plan, would have prevented...

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