Getty Oil Company (Eastern Operations) v. Ruckelshaus, No. 72-1419.

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtHASTIE, JAMES ROSEN and HUNTER, Circuit
Citation467 F.2d 349
PartiesGETTY OIL COMPANY (EASTERN OPERATIONS), Inc., a Delaware corporation, Appellant, v. William D. RUCKELSHAUS, as Administrator of the Environmental Protection Agency, and the Environmental Protection Agency, Appellees.
Decision Date12 September 1972
Docket NumberNo. 72-1419.

467 F.2d 349 (1972)

GETTY OIL COMPANY (EASTERN OPERATIONS), Inc., a Delaware corporation, Appellant,
v.
William D. RUCKELSHAUS, as Administrator of the Environmental Protection Agency, and the Environmental Protection Agency, Appellees.

No. 72-1419.

United States Court of Appeals, Third Circuit.

Argued June 23, 1972.

Decided September 12, 1972.

Certiorari Denied January 15, 1973.


467 F.2d 350
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467 F.2d 351
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467 F.2d 352
Charles F. Richards, Jr., Richards, Layton & Finger, Wilmington, Del., for appellant

F. L. Peter Stone, U. S. Atty., Wilmington, Del., for appellees.

Before HASTIE, JAMES ROSEN and HUNTER, Circuit Judges.

Certiorari Denied January 15, 1973. See 93 S.Ct. 937.

OPINION OF THE COURT

JAMES ROSEN, Circuit Judge.

This appeal is taken from an order of the district court 342 F.Supp. 1006, denying applications for preliminary and permanent injunctions and a temporary restraining order staying the effect of a compliance order issued by the Administrator of the Environmental Protection Agency (EPA). The Administrator issued the order pursuant to Section 113 of the 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.

Getty operates an oil refinery in Delaware City, New Castle County, Delaware. One of the by-products of its refinery operation is fluid petroleum coke. Delmarva Power and Light Company (Delmarva) operates a power station for Getty. The power station was designed to burn fluid coke along with either fuel gas or oil. Delmarva burns the fluid coke produced by Getty under a long term contract with Getty and thereby supplies the electricity and steam requirements of the refinery.

On October 13, 1970, after a public hearing on proposed air pollution regulations

467 F.2d 353
for Delaware was held,1 the State Water and Air Resources Commission adopted Regulation IX2 limiting the amount of sulphur content of fuel burned in New Castle County south of United States Route 40 by fuel burning equipment having a maximum rate of heat input equal to or greater than 500,000,000 b.t.u. per hour to 3.5%. The Delmarva power station is the only installation presently operating such equipment in the area.3

On August 4, 1971, Regulation IX was approved along with other sections of Delaware's implementation plan by the Administrator of EPA. As the court below noted in its opinion of May 10, 1972, "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."

Since approval by the 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, 42 U.S.C. § 1857h-5,4 by Delmarva or Getty.

On September 28, 1971 Getty submitted a request to the Secretary of Natural Resources and Environmental Control of the State of Delaware for a "variance" from the January 1, 1972 effective date of the regulation. 7 Del.C. § 6007. The basis for the application was simply that, since the national primary standards for sulphur dioxide were already being met in New Castle County, there was no compelling reason why Getty should not be given additional time to meet the emission standards of Delaware's implementation plan.5 On December 28, 1971, the Secretary denied Getty's application.6 Getty then took an appeal

467 F.2d 354
to the Water and Air Resources Commission (WARC).7

On December 29, 1971, Getty instituted an action in the Delaware Chancery Court seeking a temporary restraining order against enforcement of the challenged regulation by the state Secretary pending disposition of Getty's appeal to the Delaware Water and Air Resources Commission. The restraining order was granted on December 30, 1971.8

On February 14, 1972, Region III of the EPA sent a certified letter to Delmarva pursuant to section 114(a) of the Clean Air Act requesting information dealing with the sulphur content of fuel burned by Delmarva during January, 1972. Delmarva submitted the requested data on February 18, 1972, and later updated the information contained in the February 18 letter by submitting data for February and March 1972. For each month the data submitted indicated a violation of Regulation VIII in that the total content of the sulphur by weight exceeded 3.5%. The Administrator notified Delmarva of the violations by registered letter dated March 6, 1972. On March 20, 1972 a conference was held with representatives of the EPA and Delmarva. 42 U.S.C. § 1857c-8(a)(4). Getty requested and was given permission to attend the conference. As a result of the data supplied by Delmarva, the EPA concluded that a violation of the subject regulation had occurred "in that Delmarva was burning, at its Delaware City, Delaware power station, fuel with a sulphur content in excess of 3.5% by weight."9 The EPA also found that the violation had continued beyond the 30th day after the date of the Administrator's March 6, 1972 letter. On April 17, 1972 the order seeking compliance with Regulation VIII was issued, 42 U.S.C. § 1857c-8(a)(1), fixing May 1, 1972 as the deadline for compliance.10

467 F.2d 355

Getty filed this suit on April 21, 1972 and a hearing on its application for a temporary restraining order was held on April 27, 1972. The Administrator voluntarily agreed to suspend the effectiveness of the compliance date until May 10, 1972.

The district judge expressed his conception of Getty's application in this fashion:

"While Getty expressly disavows any claim that the regulation is invalid as a `generally applicable regulation\', Getty does allege that it is arbitrary and unreasonable in its application to plaintiff and that its enforcement as to plaintiff would be in violation of the requirements of the Fourteenth Amendment to the Constitution of the United States. (Emphasis in text) * * * As I understand it, however, the arbitrariness and unreasonableness of the regulations result from the alleged facts (1) that the national primary standards for sulphur dioxide have already been achieved in New Castle County and the regulation is accordingly wholly unnecessary to achieve and maintain that standard, and (2) that compliance with the regulation at least prior to development of an alternative technology would impose an unreasonable hardship on Delmarva and Getty. In connection with this latter point Getty asserts that it has applied for a variance on the basis of this hardship and that enforcement of the regulation prior to a determination of its appeal from the Secretary\'s denial of a variance would deprive it of procedural due process."

The compliance order is alleged to be arbitrary, capricious and unwarranted by the facts. Its enforcement prior to a due process hearing would, Getty claims, amount to a taking of property without due process of law. Getty also alleges invalidity of the order due to non-compliance with the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

The Administrator's position is that, inasmuch as Getty is attacking the regulation as being unnecessary and therefore unreasonable and unconstitutional, pre-enforcement judicial review of the compliance order is foreclosed by section 307(b), 42 U.S.C. § 1857h-5. Getty disagrees with the Government's statement of appellant's position, emphasizing its neutrality regarding the regulation on which the compliance order is based:

"Getty accepts the Regulation, but only asks for more time to comply with it."11

Getty argues that the regulation is unnecessary because the national primary standard has already been achieved in New Castle County, and that the economic burdens imposed by the regulation when compared to environmental benefits render the regulation wholly arbitrary and unreasonable. The district court recognized that such attacks upon the Administrator's approval of a regulation can only be asserted in a section 307 proceeding. However, the court concluded that the Clean Air Act as a whole did not foreclose pre-enforcement review because Getty was raising issues which would not be raised in a section 307 proceeding.12 We find that no such issues were presented to the district court. Getty was posing a direct challenge to the regulation. No dispute exists regarding the underlying facts supporting the Administrator's compliance order. Absent such a factual dispute,

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there only remains the determination whether Getty's constitutional right to a due process hearing prior to the imposition of criminal sanctions for non-compliance was satisfied

It was unnecessary for the district judge to determine whether the Clean Air Act as a whole precludes preenforcement judicial review by necessary implication. Getty was in the wrong court by virtue of section 307 of the Act. The Declaratory Judgment Act and APA could not afford a basis for jurisdiction.12A Getty's arguments against enforcement require a determination by the court whether the regulation is unnecessary, unreasonable or capricious. Whether Getty abides in the regulation "in its general application" is immaterial. If Congress specifically designates a forum for judicial review of administrative action, such a forum is exclusive, and this result does not depend on the use of the word "exclusive" in the statute providing for a forum for judicial review. UMC Industries, Inc. v. Seaborg, 439 F.2d 953 (9th Cir. 1971). The Declaratory Judgment Act and the APA do not extend jurisdiction of either the district courts or the appellate courts to cases not otherwise within their competence. See Zimmerman v. United States Government, 422 F.2d 326 (3d Cir. 1970) cert. den. 399 U.S. 911, 90 S.Ct. 2200, 26 L.Ed.2d 565, reh. den. 400 U.S. 855, 91 S.Ct. 26, 27 L.Ed.2d 93 (1970); Mattingly v. Elias, 325 F.Supp. 1374 (E.D...

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83 practice notes
  • Ajay Nutrition Foods, Inc. v. Food & Drug Administration, Civ. A. No. 328-73.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 5, 1974
    ...U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), discussed at n. 13 infra. 11 Also see Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3d Cir.), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973); Richardson v. United States, 465 F.2d 844, 849 n. 2 (3d Cir. 1972......
  • Sun Enterprises, Ltd. v. Train, Nos. 490
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 12, 1976
    ...review precludes the application of 5 U.S.C. § 704. See Oljato, supra, 515 F.2d at 663; Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349, 356 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 In denying appellants' motion for summary judgment against t......
  • West Penn Power Co. v. Train, No. 74-2050
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 15, 1975
    ...The court first determined that it lacked jurisdiction over the EPA Administrator, Train. Relying on 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), the district court concluded Page 307 that neither the Declarator......
  • Oljato Chapter of Navajo Tribe v. Train, Nos. 74-1525 and 74-1587
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 7, 1975
    ...information challenges. This, too, conflicts with the intent of Congress. See Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 3 Cir., 467 F.2d 349, 358-359 (1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973); Granite City Steel Co. v. EPA, 7 Cir., 501 F.2d 925, 926 (......
  • Request a trial to view additional results
82 cases
  • Ajay Nutrition Foods, Inc. v. Food & Drug Administration, Civ. A. No. 328-73.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 5, 1974
    ...U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), discussed at n. 13 infra. 11 Also see Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3d Cir.), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973); Richardson v. United States, 465 F.2d 844, 849 n. 2 (3d Cir. 1972......
  • Sun Enterprises, Ltd. v. Train, Nos. 490
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 12, 1976
    ...review precludes the application of 5 U.S.C. § 704. See Oljato, supra, 515 F.2d at 663; Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349, 356 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 In denying appellants' motion for summary judgment against t......
  • West Penn Power Co. v. Train, No. 74-2050
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 15, 1975
    ...The court first determined that it lacked jurisdiction over the EPA Administrator, Train. Relying on 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), the district court concluded Page 307 that neither the Declarator......
  • Oljato Chapter of Navajo Tribe v. Train, Nos. 74-1525 and 74-1587
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 7, 1975
    ...information challenges. This, too, conflicts with the intent of Congress. See Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 3 Cir., 467 F.2d 349, 358-359 (1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973); Granite City Steel Co. v. EPA, 7 Cir., 501 F.2d 925, 926 (......
  • Request a trial to view additional results
1 books & journal articles
  • NEPA's Trajectory: Our Waning Environmental Charter From Nixon to Trump?
    • United States
    • Environmental Law Reporter Nbr. 50-5, May 2020
    • May 1, 2020
    ...even apply to an agency not then in existence when NEPA was passed (an untenable argument today). See also Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 2 ELR 20683 (3d Cir. 1972), cert. denied , 409 U.S. 1125 (1973). 72. U.S. EPA, EPA Compliance With the National Environmental Policy Act , h......

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