Buckeye Power, Inc. v. Environmental Protection Agcy.

• Decision Date: 28 June 1973
• Docket Number: No. 72-1628,72-1629 and 72-1632.,72-1628
• Citation: 481 F.2d 162
• Parties: BUCKEYE POWER, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. EAST KENTUCKY RURAL ELECTRICAL COOPERATIVE CORPORATION et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. BIG RIVERS RURAL ELECTRIC COOPERATIVE CORPORATION et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

481 F.2d 162 (1973)

BUCKEYE POWER, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

EAST KENTUCKY RURAL ELECTRICAL COOPERATIVE CORPORATION et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

BIG RIVERS RURAL ELECTRIC COOPERATIVE CORPORATION et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 72-1628, 72-1629 and 72-1632.

United States Court of Appeals, Sixth Circuit.

Argued April 9, 1973.

Decided June 28, 1973.

COPYRIGHT MATERIAL OMITTED

Leslie Henry, Wilson W. Snyder, Toledo, Ohio, on brief, for all petitioners; Fuller, Henry, Hodge & Snyder, Toledo, Ohio, of counsel.

William D. Ruckelshaus, Admr., John R. Quarles, Gen. Counsel, Environmental Protection Agency, Washington, D. C., Kent Frizzell, Asst. Atty. Gen., Land & Natural Resources Div. Dept. of Justice, Edmund B. Clark, Appellate Section, Peter R. Steenland, Washington, D. C., John E. Varnum, Alexandria, Va., for appellees.

Ed W. Hancock, Atty. Gen., David B. Beals, Kenneth A. Howe, Asst. Attys. Gen., Frankfort, Ky., for Commonwealth of Kentucky, intervenor; John E. Varnum, Appellate Section, Dept. of Justice on brief.

Before WEICK and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.

WEICK, Circuit Judge.

The petitioners are public utility companies which operate power plants within the State of Ohio and the Commonwealth of Kentucky. Pursuant to the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857 to 1858 (1973 Supp.), Ohio and Kentucky submitted pollution-abatement plans to the Administrator of the Environmental Protection Agency (EPA). The implementation plans, with minor exceptions not here relevant, were approved by the Administrator.

The public utility companies have petitioned this Court, under the provisions of 42 U.S.C. Section 1857h-5(b)(1), to review the Administrator's action in approving the state plans.

Petitioners then filed a motion in this Court to require the Agency (EPA) to supplement the record with transcripts of the public hearings held in Ohio and Kentucky in connection with the adoption of the plans, to determine the scope of review, and to remand to the Agency for compliance with our determinations. Briefs and appendices were filed, and the motion and the Agency's response thereto were argued orally to the panel.

Petitioners contend that the approval of the state plans by the Administrator violated the law in three particulars, namely, (1) the Administrator did not permit interested parties, including the petitioners, to participate in the proceedings through submission of written data, views and arguments, as required by Section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1967); (2) the plans were approved without regard to the fact that it is impossible for the petitioners to comply with the standards of the plans; and (3) the plans were approved without the filing of an Environmental Impact Statement.

We hold that the Administrator's approval of the Ohio and Kentucky plans without permitting participation by interested parties was a violation of the Administrative Procedure Act. We further hold that it was not necessary that the Administrator conduct full-scale hearings on the impossibility-claims of the individual petitioners, such claims being assertable as a defense in future federal or state enforcement proceedings. We hold that the Agency need not supplement the record with transcripts of the public hearings in Ohio and Kentucky. Finally, we hold that the Administrator was not required under the National Environmental Policy Act, 42 U. S.C. §§ 4321 to 4347 (1973 Supp.), to file an Environmental Impact Statement prior to the approval of the state pollution-abatement plans.

HISTORY AND STRUCTURE OF THE CLEAN AIR ACT

The problem of air pollution in the United States has been under the consideration of Congress for many years. In 1955 the Committee on Interstate and Foreign Commerce reported favorably on the basic legislation establishing the federal air pollution research and technical assistance program which became Public Law 159 of the 84th Congress, 69 Stat. 322.

On a somewhat regular basis, this initial legislation has been modified to improve, strengthen and accelerate programs for the abatement and prevention of air pollution. Pub.L. 88-206, 77 Stat. 392; Pub.L. 89-272, 79 Stat. 992; Pub. L. 90-148, 81 Stat. 485.

However, it was not until the Clean Air Act Amendments of 1970 that Congress restructured the Act in a manner designed to insure unequivocally the reduction of air pollution. The House Report on the 1970 Amendments put it this way:

"The purpose of the legislation reported unanimously by your committee is to speed up, expand, and intensify the war against air pollution in the United States with a view to assuring that the air we breathe throughout the Nation is wholesome once again. The Air Quality Act of 1967 (Public Law 90-148) and its predecessor acts have been instrumental in starting us off in this direction. A review of achievements to date, however, make abundantly clear that the strategies which we have pursued in the war against air pollution have been inadequate in several important respects, and the methods employed in implementing those strategies often have been slow and less effective than they might have been." (H.Rep.No. 91-1146, 91st Cong., 2d Sess. 1 (1970); 3 U.S.Code Cong. & Admin. News 5356 (1970)).

The 1970 Clean Air Act Amendments, in an effort to achieve the goal of elimination of air pollution, revamped the entire predecessor legislation. It incorporated a dual (state-federal) approach to curbing air pollution and provided substantial penalties for failure of compliance, i. e., not more than a $25,000-fine per day or one year imprisonment, or both, for the first conviction, and a $50,000-fine per day or two years' imprisonment, or both, for a violation after the first conviction. 42 U.S.C. § 1857c-8(c) (1973 Supp.).

The numerous and detailed provisions of the 1970 Act make it indeed intricate. A basic outline of its structure, however, will facilitate the understanding of the contentions of the parties here.

Within thirty days after enactment of the 1970 Act the Administrator of the EPA was required to promulgate and publish national ambient general atmospheric air quality standards for major air pollutants. These standards were subdivided into two major groups: primary ambient air quality standards, and secondary ambient air quality standards.¹ 42 U.S.C. § 1857c-4 (1973 Supp.).

Following publication of these standards, each state was required to hold public hearings and to adopt a plan within guidelines provided by the Administrator and published in the Code of Federal Regulations, for the aid of the states, such plan providing for the implementation, maintenance and enforcement of national primary and secondary ambient air quality standards. The state plans had to provide for the attainment of primary standards within three years of the date of approval of the plans. Moreover, the plans had to be completed and sent to the Administrator for approval within nine months of the date of promulgation of the air quality standards. 42 U.S.C. § 1857c-5 (1973 Supp.).

After these state plans were submitted to him, the Administrator was required to approve or disapprove them (or portions thereof) within four months. Specifically, the Act provides:

"(2) 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 and that —

(A)(i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but (subject to subsection (e) of this section) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained; . . . ." (42 U.S.C. § 1857c-5(a) (1973 Supp.)).

After the approval or disapproval of a state plan by the Administrator, interested parties who desired to review his action were required within thirty days to file a petition for review in the United States Court of Appeals having jurisdiction over their area. Section 1857h-5(b)(1) of Title 42 U.S.C. provides:

". . . A petition for review of the Administrator\'s action in approving or promulgating any implementation plan under section 1857c-5 of this title . . . may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval, . . . ."

If a party fails to petition for review of the approval or disapproval of a state plan as prescribed by Section 1857h-5(b) (1), he is thereafter precluded from asserting the impropriety of the Administrator's action in this regard.

"Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement." (42 U.S.C. § 1857h-5(b) (2) (1973 Supp.)).

Having submitted an approved plan, the state, with a single exception, is barred from modifying the provisions of its plan. The exception is found in Section 1857c-5(f)(1), wherein it is provided:

"Prior to the date on which any stationary source or class of moving sources is required to comply with any requirement of an applicable implementation plan the Governor of the State to which such plan applies may apply to the Administrator to postpone the applicablity of such requirement to such source (or class) for not more

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