GETTY OIL COMPANY (EASTERN OPERATIONS) v. Ruckelshaus, Civ. A. No. 4366.

Decision Date10 May 1972
Docket NumberCiv. A. No. 4366.
PartiesGETTY OIL COMPANY (EASTERN OPERATIONS), Inc., a Delaware corporation, Plaintiff, v. William D. RUCKELSHAUS, as Administrator of the Environmental Protection Agency, and the Environmental Protection Agency, Defendants.
CourtU.S. District Court — District of Delaware

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Charles F. Richards, Jr., Robert H. Richards, III, and David S. Swayze, of Richards, Layton & Finger, Wilmington, Del., for plaintiff.

F. L. Peter Stone, U. S. Atty., Wilmington, Del., Daniel J. Snyder, Jacob Hart, Marc Suffern, of Environmental Protection Agency, Philadelphia, Pa., and Lee Stewart, Dept. of Justice, Washington, D. C., for defendants.

OPINION

STAPLETON, District Judge.

This action seeks (1) preliminary and permanent orders staying the effect of a compliance date set forth in a compliance order issued by the Administrator of the Environmental Protection Agency (the "Administrator") pursuant to Section 113 of the federal Clean Air Act as amended by the Air Quality Act of 1967 and the Clean Air Act amendments of 1970 (42 U.S.C. § 1857 et seq.) ("the Clean Air Act") and (2) a declaratory judgment that this compliance order is null and void. The case is currently before me on plaintiff's motion for a temporary restraining order. Except to the extent otherwise indicated below, the relevant facts are not in dispute.

Since 1956, plaintiff Getty Oil Company (Eastern Operations), Inc., ("Getty") and its predecessors in interest have operated a large oil refinery in Delaware City, New Castle County, Delaware. One of the products of this oil refinery is fluid petroleum coke. When operating at capacity, the refinery produces approximately 1,500 tons per day of this black, sand-like substance. Coke is a high energy fuel with heat generating characteristics. In order to make use of this fuel, Getty decided to utilize the coke to supply a large portion of the energy requirements of the refinery. Accordingly, a power station was constructed in conjunction with the refinery and designed to burn fluid coke along with either fuel gas or oil. This power station is operated by Delmarva Power & Light Company ("Delmarva"). Delmarva's power station burns the fluid coke under a long term contract with Getty and supplies all of the electricity and steam requirements needed to operate the refinery. The station also generates electricity for Delmarva's power grid at Delaware City.

In September of 1970 Delaware's Water and Air Resources Commission (the "Commission") noticed and held a public hearing on proposed air pollution regulations for the State of Delaware. Getty appeared at the hearing and argued against adoption of a proposed regulation which would have the effect of limiting the sulphur content in fuel burned at Delmarva's power plant to 3.5% after January 1, 1972. Thereafter, on October 13, 1970, the Commission adopted Regulation XV, Section 2.4 (the "Regulation") providing that "after January 1, 1972, fuel having a sulphur content greater than three and five-tenths percent (3.5%) by weight shall not be utilized in the area south of U.S. Route 40 in New Castle County for fuel burning equipment having a maximum rate of heat input equal to or greater than 500,000,000 b. t. u. per hour." Since the Delmarva power station is the only establishment having such equipment within the area specified, this regulation presently affects only that installation. Under a regulation simultaneously adopted, facilities with fuel burning equipment having a smaller rate of heat input were limited after January 1, 1972 to the burning of fuel having a sulphur content of 1% or less.

Section 3 of Regulation XV provided an alternative control. It specified that "the sulphur and fuel restrictions of Section 2 shall not apply in any case where it is demonstrated to the Department that the sulphur dioxide emission from any unit of fuel burning equipment will be controlled to sulphur dioxide levels equivalent to the sulphur dioxide emissions that would result by virtue of burning the applicable fuels listed in Section 2 as they apply."

Getty took no appeal to the Delaware state courts attacking the Commission's approval of these regulations on October 13, 1970.1 They became part of Delaware's Implementation Plan for attainment and maintenance of the primary national standards for sulphur dioxide promulgated by the Administrator under the Clean Air Act. The sulphur dioxide portion of Delaware's Implementation Plan received federal approval on August 4, 1971. While this approval received substantial publicity at the time and presumably came to Getty's attention shortly after the action was taken, notice of the approval was not published in the Federal Register until February 3, 1972.

After the Commission's adoption of the regulation, Getty made an effort to find a technology which would permit compliance, before January 1, 1972, by meeting the terms of Section 3. The search revealed that there is no such technology presently available and that the most promising technologies presently being studied will not enable the Delaware City plant to comply by meeting the alternative control of Section 3 before 1976.

During the summer of 1971, Getty determined that, "since the quality of air in New Castle County, Delaware was very good and already met the national primary standard for sulphur dioxide," it should apply for "a variance" from the effect of the regulation pursuant to Delaware's air pollution control statute. 7 Del.C. § 6007. While the proposition is disputed, Getty had submitted competent expert testimony by way of affidavit that the available data collected by air monitoring stations during the last eleven years pertaining to the ambient air concentrations of sulphur dioxide in New Castle County, with one minor exception, show full compliance with the national primary standards for sulphur dioxide. Getty's expert further expresses the opinion, currently uncontradicted in the record, that "there exists no danger whatsoever to the public health from the existing levels of sulphur dioxide in the ambient air in New Castle County, Delaware."

On September 28, 1971, Getty applied for a variance with the Secretary of the Department of National Resources and Environmental Control of the State of Delaware (hereafter the "Secretary" and the "Department", respectively). On December 28, 1971, the Secretary denied Getty's application. He determined that if the variance were granted compliance with the national sulphur dioxide primary standard would be achieved no earlier than late 1975 or early 1976 and that the granting of the variance was precluded by the federal statute and regulations. He denied "a stay" pending an appeal of his decision to the Commission as provided by Delaware law. 7 Del.C. § 6008. Getty's appeal is currently pending before that body.

Having unsuccessfully applied to both the Department and Commission for a stay of the effect of the regulation, Getty instituted an action against the Secretary in the Court of Chancery in and for New Castle County on December 29, 1971. That court entered a temporary restraining order restraining enforcement of the regulation by the Secretary and the Commission "until further order of the court." This temporary restraining order is still in effect. While there has been no formal disposition of Getty's motion for a preliminary injunction, the Vice Chancellor has recently denied an application of the Secretary to vacate the restraining order.

Since approval by the Environmental Protection Agency ("EPA") of Delaware's Implementation Plan no petitions for review of the Administrator's action have been filed pursuant to Section 307 (b) (1) of the Clean Air Act by Delmarva, Getty or any other party.

On February 14, 1972, the EPA sent a certified letter pursuant to Section 114 (a) of the Act to Delmarva. The letter requested information dealing with the sulphur content of fuel burned by Delmarva at its Delaware City plant. The data provided in response revealed that the total content of sulphur by weight exceeded 3.5% during the month of January. Updated information thereafter submitted by Delmarva demonstrated that the same situation existed in February and March of 1972. On the basis of Delmarva's admissions, the Administrator of the EPA, pursuant to Section 113(a) (1) of the Clean Air Act, determined that a requirement of an applicable implementation plan had been violated. The Administrator notified Delmarva of this violation by registered letter dated March 6, 1972. A conference was held on March 20, 1972. On the basis of admissions then made by Delmarva, together with Delmarva's continuing submissions under Section 114(a) (1), it was determined that a violation of the regulation did exist, and that said violation has continued beyond the thirtieth day after the date of the Administrator's March 6, 1972 letter. On April 17, 1972 the Administrator, pursuant to Section 113(a) (1) of the Act, issued the order which is the subject of this proceeding directing compliance by May 1, 1972. This suit ws filed on April 21, 1972 and a hearing on Getty's application for a temporary restraining order was held on April 27, 1972. Thereafter, the Administrator voluntarily agreed to suspend the effectiveness of the compliance date until May 10, 1972 in order to allow the Court more time to consider the issues briefed and argued by the parties.

Delmarva joined in Getty's application for a variance. While it is not a party here, an affidavit of its chief executive officer has been filed stating that Delmarva intends to comply with the Administrator's order "unless relieved of compliance by an order of this Court pursuant to the application of Getty Eastern, and will not run the risk of incurring criminal fines and jail sentences which might be imposed if it did not comply." According to the Delmarva...

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