West Penn Power Co. v. Train, 74-2050

• Decision Date: 15 August 1975
• Docket Number: No. 74-2050,74-2050
• Citation: 522 F.2d 302
• Parties: , 5 Envtl. L. Rep. 20,557 WEST PENN POWER COMPANY, a corporation, Appellant, v. Russell TRAIN, Administrator of the Environmental Protection Agency of theUnited States of America, et al.
• Court: U.S. Court of Appeals — Third Circuit

Page 302

522 F.2d 302

7 ERC 2178, 5 Envtl. L. Rep. 20,557

WEST PENN POWER COMPANY, a corporation, Appellant, v. Russell TRAIN, Administrator of the Environmental Protection

Agency of theUnited States of America, et al.

No. 74-2050.

United States Court of Appeals, Third Circuit.

Argued April 28, 1975.

Decided July 16, 1975.

As Amended Aug. 15, 1975.

Harold R. Schmidt, Lawrence A. Demase, and Edwin J. Strassburger, Rose, Schmidt & Dixon, Pittsburgh, Pa., and Thomas K. Henderson, Greensburg, Pa., for appellant.

Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, Martin Green, Attys., and John E. Varnum, Chief, App. Section, U. S. Dept. of Justice, Washington, D. C., for appellee Russell Train.

Barbara H. Brandon, Asst. Atty. Gen., Commonwealth of Pennsylvania, Harrisburg, Pa., for appellee Maurice K. Goddard and appellee Dept. of Environmental Resources of the Commonwealth of Pennsylvania.

Before VAN DUSEN, ADAMS and GARTH, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges a June 19, 1974, district court order dismissing West Penn Power Company's amended complaint for lack of jurisdiction. ¹ The dismissed complaint sought injunctive and declaratory relief protecting West Penn from any duty to comply with the particulate and sulfur compound emission standards established as part of Pennsylvania's implementation plan ² pursuant West Penn did not file a petition for review under 42 U.S.C. § 1857h-5(b)(1) ⁴ to challenge the implementation plan when it was approved, but petitioned the Pennsylvania Department of Environmental Resources (DER) for a variance ⁵ from the particulate, visible, and sulfur compound emission standards applicable to Boiler No. 33 of West Penn's Mitchell Power Station. On September 13, 1973, before DER had acted on its variance request ⁶ West Penn received from EPA a Notice of Violation ⁷ charging that the Mitchell Power Station was in violation of the applicable particulate and sulfur compound emission standards. Thereafter, on September 19, 1973, DER granted West Penn a temporary variance until June 30, 1976, from the sulfur emission standards. ⁸ The variance, however, rejected West Penn's proposal that it use a "tall stack" and low sulfur coal to meet the standards; ⁹ installation of a "scrubber" device for controlling sulfur compound emissions was a condition of the variance. This temporary variance has not been approved by EPA. ¹⁰

to the Clean Air Act, 42 U.S.C. § 1857 Et seq. ³

West Penn first appealed DER's variance order to the Pennsylvania Environmental On June 19, 1974, after the three defendants had filed F.R.Civ.P. 12(b) motions to dismiss for lack of subject matter jurisdiction, ¹⁸ the district court dismissed the amended complaint in its entirety, as to all defendants. 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 As to DER, the court held the action barred by the Eleventh Amendment. ²³ The court also concluded that it lacked jurisdiction over the Secretary of DER, Goddard. The court viewed West Penn's assertion that DER lacked power to reject a "tall stack" or to direct installation of a "scrubber" as, essentially, a challenge to the Pennsylvania implementation plan. Such a challenge could be brought only in the court of appeals pursuant to 42 U.S.C. § 1857h-5(b)(1) and (2). The district court opinion recognized that a variance from the air quality standards would remedy West Penn's complaint, but noted that the temporary variance issued by DER on September 19, 1973, was ineffective without EPA approval, which the court could not compel. ²⁴ This lack of jurisdiction over the West Penn filed a timely motion for reconsideration challenging the dismissal of the complaint only as to Train and Goddard. On September 10, 1974, after the district court denied the motion, West Penn lodged this appeal. Although it is not clear precisely which aspects of the district court's decision West Penn is appealing, ²⁵ we will treat the appeal as raising the following three questions:

Hearing Board ¹¹ and then, on December 20, 1973, filed this action against the Administrator of EPA, Train, the Secretary of DER, Goddard, and DER. ¹² The complaint, as amended, ¹³ asked for a declaratory judgment both that the tall stack scheme for effecting compliance with Pennsylvania's implementation plan could not be rejected by the defendants and that West Penn was not presently violating the plan. West Penn also sought preliminary and permanent injunctions against EPA enforcement of the September 13, 1973, Notice of Violation and DER enforcement of the order to install a "scrubber." ¹⁴ Jurisdiction was predicated upon "the Clean Air Act, 42 U.S.C. § 1857 Et seq., specifically 42 U.S.C. § 1857h-2 (entitled "Citizen suits Establishment of right to bring suit"); ¹⁵ The Administrative Procedure Act, 5 U.S.C. § 701 Et seq.; ¹⁶ The Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202; and 28 U.S.C. § 1337." ¹⁷ Amended Complaint, P 6, Civil Action No. 73-1083, Document 20 (W.D.Pa.) that neither the Declaratory Judgment Act (DJA) nor the Administrative Procedure Act (APA) furnished a jurisdictional base for West Penn's suit against Train. ¹⁹ No jurisdiction lay under § 1857h-2 because West Penn had not given Train 60 days' notice of the suit, as required by that section. ²⁰ Having thus rejected each of West Penn's jurisdictional claims, ²¹ the district court went on to find that, in any event, 42 U.S.C. § 1857h-5(b)(1) and (2) ²² foreclosed district court jurisdiction over the action. Since the district court determined that all issues raised in the complaint could have been brought before the court of appeals in an action challenging the Pennsylvania implementation plan, it held that West Penn's exclusive recourse against Train was a proceeding under 42 U.S.C. § 1857h-5(b)(1). EPA Administrator, Train, rendered federal court intervention "futile," since Goddard could not grant a variance or approve a "tall stack" without EPA concurrence. Finally, the court found that Pennsylvania law (35 Purdon's Pa.Stats. § 4004(4.1) ) offered West Penn ample relief, without any need for federal intervention.

(1) whether the district court properly concluded that § 1857h-5(b)(1) and (2) required dismissal of the complaint as to both Train and Goddard;

(2) whether the district court has jurisdiction under the APA ²⁶ of matters raised in the complaint; and

(3) whether due process requires the district court to assume jurisdiction and decide the issues raised in the complaint.

I. EXCLUSIVITY OF THE REVIEW PROVIDED IN 42 U.S.C. § 1857h-5(b)(1) and (2)

West Penn claims that EPA could not cite the utility for violating Pennsylvania's implementation plan since West Penn, by filing a petition for a variance on September 15, 1972, received an automatic stay of prosecution for violation of the particulate and sulfur compound emission standards. This argument relies on 25 Pa.Code § 141.5, which provides:

"(a) A petition which complies with the requirements of § 141.11 of this Title (relating to filing), and which is received by the Department within six months of the effective date of this Chapter, shall operate prospectively as an automatic stay of prosecution for violations of those provisions of this West Penn avers that this stay was in effect on September 13, 1973, "and will remain so at least through June 30, 1975." Brief for Plaintiff-Appellant at p. 10, n.3.

Article with respect to which the variance is sought, until one year after the effective date of this Chapter or until the Department takes action on such petition, whichever occurs first, except that the filing of a petition for a variance, or the grant thereof, shall not relieve the petitioner from full compliance with any orders and permits previously issued or any stipulations and agreements previously entered into by the Department, nor shall such filing in any way preclude the Department from pursuing any and all remedies available to it, at law or in equity, to enforce such orders, permits, stipulations, or agreements."

In addition, West Penn argued, both in its brief at 9 and before this court, that it has a variance from DER, granted September 19, 1973, which exempts it from complying with the sulfur emission standards until June 30, 1976. ²⁷ This contention that West Penn is not in violation of the plan thus poses no challenge to "the Administrator's action in approving or promulgating any implementation plan," 42 U.S.C. § 1857h-5(b)(1); rather, it relies on the validity of the plan provisions for granting variances. We therefore agree with West Penn that this particular contention could not have been raised in a § 1857h-5(b)(1) proceeding. It follows that the district court erred in finding that subsection (b)(2) barred its jurisdiction to decide this claim.

It also appears that subsection (b)(2) would not foreclose the district court from deciding whether a tall stack was a proper method of complying with the plan. The plan prescribes certain air quality standards which must be met, not specific methods of attaining those standards. A subsection (b)(1) suit would challenge only the plan that is, the standards, and not the methods of compliance. Thus, subsection (b)(2) would not prevent West Penn from raising the tall stack issue in the district court. ²⁸ See, generally, Note: Reviewability of Administrative Action: The Elusive Search for a Pragmatic Standard, 1974 Duke L.J. 382, 384; L. Jaffe, Judicial Control of Administrative Action, 353-63, 372-76 (1965). However, unless there was an affirmative grant of jurisdiction in the district court, the dismissal for lack of jurisdiction was still proper.

II. JURISDICTION UNDER THE ADMINISTRATIVE PROCEDURE ACT AND THE DECLARATORY JUDGMENT ACT

The...