515 F.2d 654 (D.C. Cir. 1975), 74-1525, Oljato Chapter of Navajo Tribe v. Train

Docket Nº:74-1525 and 74-1587.
Citation:515 F.2d 654
Party Name:5 Envtl. OLJATO CHAPTER OF the NAVAJO TRIBE et al., Appellants, v. Russell E. TRAIN, Administrator of the Environmental Protection Agency. RED MESA CHAPTER OF the NAVAJO TRIBE, Oljato Chapter of Jicarilla Apache Tribe of Indians, Committee to Save Black Mesa, Inc., Paul Goodman, Mary Gillis, Jackson Gillis, Della Marie G. Black, and Begay Bitsinnie
Case Date:July 07, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 654

515 F.2d 654 (D.C. Cir. 1975)

5 Envtl.

OLJATO CHAPTER OF the NAVAJO TRIBE et al., Appellants,

v.

Russell E. TRAIN, Administrator of the Environmental

Protection Agency.

RED MESA CHAPTER OF the NAVAJO TRIBE, Oljato Chapter of

Jicarilla Apache Tribe of Indians, Committee to Save Black

Mesa, Inc., Paul Goodman, Mary Gillis, Jackson Gillis, Della

Marie G. Black, and Begay Bitsinnie, Petitioners,

v.

Russell E. TRAIN, Administrator of the Environmental

Protection Agency, Respondent.

Nos. 74-1525 and 74-1587.

United States Court of Appeals, District of Columbia Circuit

July 7, 1975

Argued Feb. 28, 1975.

Page 655

Joseph J. Brecher, Boulder, Colo., with whom John D. Ross, III, was on the brief, for appellants-petitioners.

Robert L. Klarquist, Atty., Dept. of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., Carl Strass and Lloyd S. Guerci, Attys., Dept. of Justice, and Jeffrey O. Cerar, Atty., Environmental Protection Agency, were on the brief, for appellee-respondent.

Before RIVES, [*] Senior Circuit Judge, and WRIGHT and McGOWAN, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Petitioners-appellants' 1 (hereinafter petitioners) challenge to the refusal of

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the Administrator of the Environmental Protection Agency (EPA) to revise his previously promulgated standards of performance for new coal-fired power plants raises difficult procedural problems concerning the proper forum in which such a challenge may be brought. We conclude that a challenge to the Administrator's refusal to revise a standard of performance is in effect a challenge to the standard itself and so can be brought only in this court under Section 307(b)(1) of the Clean Air Act (the Act), 42 U.S.C.A. § 1857h-5(b)(1) (1975 pocket part). However, because petitioners have not complied with certain preliminary procedures which we conclude are essential to our exercise of jurisdiction under the Act, we dismiss the petition for review, without prejudice to its refiling when those preliminary procedures are met.

I

Section 111 of the Clean Air Act, 42 U.S.C. § 1857c-6 (1970), orders the Administrator of EPA to promulgate "standards of performance" for new stationary sources of air pollution. A standard of performance is

a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated.

Id. § 1857c-6(a)(1). On August 17, 1971 the Administrator proposed standards for new coal-fired electric generating stations, 36 Fed.Reg. 15704, 15706. After consideration of comments, the proposed standards were made final on December 23, 1971. Id. at 24876. See 40 C.F.R. Part 60 (1974). The standard for sulfur oxide emissions, which petitioners seek to have revised, was set at 1.2 pounds of sulfur oxides per million British Thermal Units of plant capacity.

For plants burning the high sulfur coal prevalent in the East, this standard could be achieved only by cleansing the sulfur by-products from the gases emitted from the stack. 2 This process is known as fuel gas desulfurization (FGD) or "scrubbing," and is used to clean emissions from existing as well as new sources. Plants burning the low sulfur coal prevalent in the West could achieve the 1.2 pound standard without using any control technology at all. This standard was adopted to encourage identification and use of clean fuels, which are both "a more environmentally acceptable and more efficient means of reducing sulfur dioxide air pollution," and because there was insufficient scrubber capacity "to meet demands relating to compliance with ambient air quality standards (for existing sources) and with new source performance standards." Respondent's Supplemental Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment at 2, Appendix (App.) at 68. When promulgated, the standard for new coal-fired generators was challenged by those who claimed it was too strict. With one exception not here pertinent, the standard was approved by this court in Essex Chemical Corp. v. Ruckelshaus, 158 U.S.App.D.C. 360, 486 F.2d 427 (1973). See also Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (1973).

Petitioners did not join in the timely appeal from the Administrator's promulgation of new source standards for coal-fired generators. Cf. Nader v. Nuclear Regulatory Com'n, 168 U.S.App.D.C. ---, ---, 513 F.2d 1045, 1054 (decided May 30, 1975). Instead, on March 20, 1973, well over a year after the final standards of performance were promulgated, counsel for petitioners wrote a letter

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to the Administrator stating that his clients objected to application of the standards to new coal-fired electric generating plants being planned in the Four Corners area of the Southwest. The planned plants would use low sulfur coal and therefore would employ no "scrubbing" devices. The letter requested the Administrator announce a proposed rule-making within 30 days for the purpose of revising EPA's standard of performance to require removal of 90 per cent of sulfur dioxide emissions in all new plants regardless of the quantity of those emissions. App. 6-8. On May 7, 1973 the Director of EPA's Office of Air Quality Planning and Standards responded to the letter, advising petitioners that EPA was not planning to revise the new source performance standards for coal-fired power plants and the reasons therefor. App. 9-12.

On June 22, 1973 petitioners filed suit in the District Court. Asserting District Court jurisdiction under Section 304 of the Clean Air Act, 42 U.S.C. § 1857h-2 (1970), and Section 10 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1970), they sought to have the court order the Administrator to propose new source standards of performance that would implement the 90 per cent control they desired. App. 1-5. The District Court dismissed the suit for lack of jurisdiction on January 31, 1974, ruling that a challenge to a standard of performance lay only in the Court of Appeals under Section 307(b) (1) of the Clean Air Act, 42 U.S.C.A. § 1857h-5(b)(1). App. 83-84. Petitioners have both appealed the dismissal of their suit for injunctive relief and, taking the suggestion of the District Court, petitioned this court directly for review of the Administrator's standard of performance. Accordingly, we must determine the proper forum for this challenge.

II

The Clean Air Act provides two means of review of EPA action. There is a typical review section, Section 307, that allows appeals to the Courts of Appeals to this court alone in the case of national standards and there is a novel provision in Section 304 for "citizen suits" to be brought against the Administrator in District Court. Section 307, 3 which is exclusive in its terms, directs that petitions "for review of action of the Administrator in promulgating * * * any standard of performance under section (111)" may be filed only in this court and only "within 30 days from the date of such promulgation * * *." 42 U.S.C.A. § 1857h-5(b)(1). An appeal is allowed after that time "if such petition is based solely on grounds arising after such 30th day." Id. An action under Section 304, 4 on the other hand,

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may be brought at any time, so long as the Administrator is given 60 days notice, whenever "there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." Id. § 1857h-2(a)(2). The other source of jurisdiction to review EPA action pertinent to this case is Section 10 of the APA, 5 U.S.C. §§ 701-706, which this court has found to be an independent source of jurisdiction for District Court review of much agency action regardless of the amount in controversy. 5 Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970). See Pickus v. United States Board of Parole, 165 U.S.App.D.C. ---, --- & n. 4, 507 F.2d 1107, 1109 & n. 4 (1974) (setting out the cases in this circuit and discussing the split among the circuits).

In the District Court petitioners argued that the Administrator's refusal to revise the standard of performance for new coal-fired electric generating plants constituted a failure to perform a nondiscretionary duty, thereby conferring District Court jurisdiction under the citizen suit provisions of Section 304. First Amended Complaint for Injunctive Relief at 4, App. at 4. Additionally, they claimed that their letter of March 20, 1973 constituted a petition for amendment of a rule under 5 U.S.C. § 553(e) (1970), thereby making the EPA refusal to act reviewable under Section 10 of the APA. Id. While urging the validity of these bases of jurisdiction in their appeal in No. 74-1525, petitioners also argue, in their petition for review in No. 74-1587, that they seek review of the standard of performance under Section 307 solely on the basis of information arising after the original 30-day filing period. Brief for petitioners at 48-51. At oral argument counsel for petitioners made clear that it mattered little to him where review could be had, only that it could be had at all. Indeed,

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throughout this case petitioners rely heavily on the general presumption of reviewability of administrative action, see Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), rather than on one provision over another. On the other hand, EPA argues, and we agree, that petitioners' challenge is to the "action of the Administrator in promulgating" the standard of performance, Section...

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