Lloyd A. Fry Roofing Co. v. U.S. E.P.A., 76-1731

Citation554 F.2d 885
Decision Date11 May 1977
Docket NumberNo. 76-1731,76-1731
Parties, 7 Envtl. L. Rep. 20,415 LLOYD A. FRY ROOFING CO., Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Thomas J. Leittem, Kansas City, Mo., for appellant; John H. Altergott, Jr., Kansas City, Mo., on the brief.

Maryann Walsh, Atty., Land and Natural Resource Div., Appellate Section, U. S. Dept. of Justice, Washington, D. C., for appellee; Peter R. Taft, Asst. Atty. Gen., Edmund B. Clark, Atty., and Todd M. Joseph, E. P. A., Washington, D. C., on the brief.

Before MATTHES, Senior Circuit Judge, and WEBSTER and HENLEY, Circuit Judges.

MATTHES, Senior Circuit Judge.

The primary question for determination on this appeal is whether an alleged violator of section 113(a)(1) of the Clean Air Act, 42 U.S.C. § 1857c-8(a)(1), is empowered to maintain a pre-enforcement action to test the validity of an abatement order issued by the Administrator of the Environmental Protection Agency (EPA). This is a question of first impression in the courts of appeals. Lloyd A. Fry Roofing Company (plaintiff) filed such an action against the United States Environmental Protection Agency, Russell Train, as EPA Administrator, Jerome H. Svore, as EPA Administrator for Region VII, and Earl J. Stephenson, as Director of the Enforcement Division for Region VII. The district court granted defendants' motion to dismiss the action for lack of subject matter jurisdiction and plaintiff has appealed from the dismissal.

I

Plaintiff operates an asphalt roofing plant in North Kansas City, Missouri. A by-product of its operation is a mixture of asphalt particles and gas which, after passing through the plant's air pollution control system, is emitted as a plume from a 100 foot high stack.

Effective January 5, 1969 the EPA Administrator approved certain regulations known as "Air Quality Standards and Air Pollution Control Regulations for the Kansas City Metropolitan Area," which had been submitted by Missouri as part of the state implementation plan pursuant to section 110(a) of the Clean Air Act, 42 U.S.C. § 1857c-5. Regulation V Restriction of Emission of Visible Air Contaminants prohibits the discharge of air contaminants of a certain density, except where failure to meet the requirement stems solely from the presence of "uncombined water." Regulation V provides in pertinent part as follows:

A. Restrictions Applicable to All Installations

No person may discharge into the ambient air from sources of emission whatsoever any air contaminant a.) of a shade or density equal to or darker than designated as No. 1 on the Ringelmann Chart, or b.) of such capacity (sic ) as to obscure an observer's view to a degree equal to or greater than does smoke designated as No. 1 on the Ringelmann Chart.

B. Exceptions 2. Where the presence of uncombined water is the only reason for failure of an emission to meet the requirements of Section A of this Regulation V, such sections shall not apply.

C. Method of Measurement

The Ringelmann Chart shall be the standard in grading the shade or opacity of visible air contaminant emissions. The Executive Secretary may with the consent of the source operator employ any other means of measurement which give comparable results of greater accuracy.

On September 25, 1975, defendant Svore, as Regional Administrator of EPA, issued a notice informing plaintiff that it was in violation of Regulation V. The notice was based on visual smoke readings which indicated that the opacity of the plume from plaintiff's stack exceeded that allowable under Regulation V. Plaintiff requested an opportunity to confer with EPA representatives concerning the alleged violation. A formal evidentiary hearing was held on November 7, 1975 at EPA's Region VII office in Kansas City. By letter of January 9, 1976, plaintiff was directed to install sampling ports and scaffolding on the main stack in preparation for an EPA stack test. Plaintiff consented to the stack test, but refused to install the necessary equipment at its own expense. On March 9, 1976, defendant Stephenson, as Director of the Enforcement Division for Region VII, issued an order pursuant to section 113(a) (1) of the Clean Air Act, 42 U.S.C. § 1857c-8(a)(1) directing plaintiff to eliminate opacity violations within the time schedule set forth therein.

On April 13, 1976, plaintiff filed a verified complaint seeking a temporary restraining order and a preliminary injunction to set aside the notice of violation and order as being unlawful, arbitrary, and capricious. Additionally, plaintiff sought a declaratory judgment finding Regulation V unconstitutional. Plaintiff alleged, in effect, that it was in compliance with the regulation because it was emitting a "wet" plume of less than twenty percent opacity and that the regulation was unconstitutionally vague because it contained no definition of "uncombined water" and failed to advise the industry of the scope of prohibited conduct. Jurisdiction was asserted under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the federal question statute, 28 U.S.C. § 1331, the statute conferring jurisdiction over cases arising under statutes affecting commerce, 28 U.S.C. § 1337, and the mandamus statute, 28 U.S.C. § 1361.

On May 6, 1976, defendants filed a motion to dismiss the complaint insofar as it sought pre-enforcement review of the abatement order and judicial review of Regulation V. Defendants' motion to dismiss was based upon contentions that Congress intended to preclude pre-enforcement review of EPA abatement orders and to make the United States Court of Appeals the exclusive forum for review of federally approved state implementation plans. On June 25, 1976, the district court filed a judgment granting defendants' motion to dismiss. The court concluded, in an accompanying memorandum opinion, that it lacked jurisdiction to grant the relief requested in plaintiff's complaint. See Lloyd A. Fry Roofing Co. v. United States Environmental Protection Agency, 415 F.Supp. 799 (W.D.Mo.1976).

II

We address, initially, the question whether the district court correctly ruled that it lacked jurisdiction to review the abatement order issued against plaintiff. Plaintiff argues, and the defendants concede, that even in the absence of any provision for judicial review there is a strong presumption in favor of judicial review of final agency action, and that to preclude such review there must be a showing of "clear and convincing evidence" of a contrary legislative intent, Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); see Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Ortego v. Weinberger, 516 F.2d 1005, 1009 (5th Cir. 1975); Garvey v. Freeman, 397 F.2d 600, 605 (10th Cir. 1968). The crux of the controversy is whether the pertinent legislative history and the statutory scheme demonstrate that Congress intended to foreclose judicial review of an EPA compliance order in an action for pre-enforcement review instituted by an alleged violator.

Under section 113(a)(1) of the Clean Air Act, 42 U.S.C. § 1857c-8(a)(1), 1 whenever the Administrator finds that any person is in violation of a state implementation plan he must notify the alleged violator and the applicable state of his finding. If the violation continues unabated for thirty days, the Administrator may either issue an abatement order, which does not become effective until after the alleged violator has had an opportunity to confer with the Administrator, see 42 U.S.C. § 1857c-8(a)(4), or may commence a civil action for appropriate relief in the district court, pursuant to 42 U.S.C. § 1857c-8(b). Violators are subject to a fine of up to $25,000 for each day of violation and imprisonment for up to one year, see id. § 1857c-8(c).

Section 702 of the Administrative Procedure Act, 5 U.S.C. § 702, does not confer jurisdiction to review agency action where the regulatory statute itself precludes judicial review, see Califano v. Sanders,--- U.S. ----, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977). Section 113 of the Act contains no provision specifically providing for pre-enforcement judicial review of an EPA abatement order, nor does it expressly preclude such review. A congressional intent to limit review need not be express, but may be drawn from a statute's legislative history, purpose, and design, see Consumer Federation of America v. FTC, 169 U.S.App.D.C. 136, 515 F.2d 367, 370 (1975); Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970). Our analysis begins, then, with a brief review of the legislative history of section 113, particularly the process by which it was enacted as part of the Clean Air Act Amendments of 1970, Pub.L.No. 91-604, 84 Stat. 1676 et seq. 2

In 1970 the Ninety-First Congress began considering proposals to amend the Air Quality Act of 1967, Pub.L.No. 90-148, 81 Stat. 485 et seq. (1967) to provide a more effective program to improve air quality. In considering amendments to the previous legislation, Congress expressed an awareness of the need to expedite the implementation and enforcement of air quality standards, see, e. g., H.R.Rep.No. 91-1146, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News, p. 5356; S.Rep.No. 91-1196, 91st Cong., 2d Sess. (1970). In the area of enforcement, the House bill, H.R. 17255, 91st Cong., 2d Sess. (1970) directed the Secretary of Health, Education and Welfare to issue a notice of violation to persons who failed to comply with state implementation plan requirements not being enforced by the states. The House proposal further authorized the Secretary to request the Attorney General to bring suit in cases where the state's failure to enforce its implementation plan extends more than thirty days after notification of violation. In a new section 112, the House provided for federal...

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