West Penn Power Company v. Train, Civ. A. No. 73-1083.

• Decision Date: 19 June 1974
• Docket Number: Civ. A. No. 73-1083.
• Citation: 378 F. Supp. 941
• Parties: WEST PENN POWER COMPANY v. Russell TRAIN, Administrator of the Environmental Protection Agency of the United States of America, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

378 F. Supp. 941

WEST PENN POWER COMPANY v. Russell TRAIN, Administrator of the Environmental Protection Agency of the United States of America, et al.

Civ. A. No. 73-1083.

United States District Court, W. D. Pennsylvania.

June 19, 1974.

Harold R. Schmidt, Pittsburgh, Pa., for plaintiff.

Craig R. McKay, Pittsburgh, Pa., Marvin A. Fein, Harrisburg, Pa., for defendants.

OPINION

KNOX, District Judge.

West Penn Power Company, a Pennsylvania public utility, has filed suit in this district court asking for an injunction against defendant Train, Administrator of the Environmental Protection Agency of the United States (hereinafter referred to as the Federal Administrator), and Maurice K. Goddard, individually and as Secretary of the Department of Environmental Resources, and the Department of Environmental Resources of the Commonwealth of Pennsylvania (hereinafter collectively referred to as the State defendants). The suit seeks an injunction against enforcement of a notice of violation issued by the Federal Administrator requiring plaintiff to install a sulphur emission control device on Boiler No. 33 at its Mitchell Power Station, a "fossil-fired" electric generating facility in Washington County, Pennsylvania and also seeks a declaratory judgment that it is not in violation of the Pennsylvania Plan for control and abatement of air pollution as approved by the Federal Administrator. Particularly, it is complained that the defendants are acting without authority of law in rejecting plaintiff's Plan for compliance with national standards controlling sulphur oxides by the use of a tall stack instead of sulphur emission control devices on the boiler.

Plaintiff avers that there are presently no sulphur emission control devices available for use on this boiler to enable it to comply with the regulations and that if it is required to install such devices, its generating capacity will be greatly reduced and its supply of electric power to its customers will be impaired. It is further averred that to install such devices will result in an expenditure in excess of $23,000,000 and annual costs of $6,500,000 which will require considerable increases in rates to its customers.

The federal legislation is lengthy and complicated with respect to air pollution. The air pollution control provisions are embodied in 42 U.S.C. § 1857 et seq., with numerous amendments. This legislation provides a comprehensive scheme for the control of air pollution throughout the United States. In 1857c-5 Section 110 provision is made for filing of state implementation plans to conform with national air quality standards as promulgated by the Federal Administrator. A plan is to be adopted by each state and submitted to the Administrator within a limited period of time for approval. Provision is made for action by the Administrator in promulgating a plan where the state does not act.

The complaint is not clear as to exactly when the Pennsylvania plan for implementation of the national ambient air quality standards for Pennsylvania was approved by the federal agency, but it does appear that such approval was prior to September 15, 1972, because in paragraph 9 of the complaint, it is averred that the plaintiff on that date petitioned for a variance from the limitations contained in the Pennsylvania plan which petition for variance was amended June 7, 1973.

The amended complaint (which, inter alia, added defendant Goddard as a defendant in addition to the original defendant the Department of Environmental Resources of the Commonwealth of Pennsylvania) avers that on September 13, 1973, the Federal Regional Administrator notified the plaintiff that its power station was in violation of the Pennsylvania Plan. On September 19, 1973, it is averred that the state defendants rejected a variance for use of a tall stack on the boiler in question but postponed compliance until June 30, 1976, when they directed plaintiff to install a sulphur emission control device on the boiler in question which order of the state defendants plaintiff avers has been appealed "to the appropriate administrative body".

The plaintiff avers that the Federal Administrator has exceeded his authority in interpreting the federal Act to prohibit the use of a tall stack as a method for attainment of air quality standards and as a result of this interpretation by the Federal Administrator, the state defendants have failed to promulgate regulations permitting the use of a tall stack as a part of the Pennsylvania plan. It is therefore claimed that the federal defendant has breached his non-discretionary duties under Sections 108 and 110 of the Act (42 U.S.C. §§ 1857c-3 and 1857c-5).

The Pennsylvania legislation under which the state defendants are proceeding is found in 35 Purdon's Pa.Stats. 4001 et seq. It provides as pointed out by the plaintiffs for fines up to $1,000 per day, conviction after further proceedings for a misdemeanor, and civil penalties of $10,000 plus $2,500 for each day. This would appear enough to constitute irreparable harm for a preliminary injunction if the plaintiff was in the proper judicial forum.

A. Suits Against The Federal Defendants.

Insofar as the federal defendants are concerned, plaintiff asks relief for a decree declaring that neither defendant has a right to reject plaintiff's plan for compliance, that the decree be entered declaring that plaintiff is not in violation of the Pennsylvania plan as approved by the Administrator and for a preliminary injunction enjoining the Federal Administrator from proceeding to enforce the notice of violation issued on September 13, 1973.¹

Jurisdiction to bring this suit against the Federal Administrator is allegedly founded upon 5 U.S.C. § 701 et seq. (Administrative Procedure Act), the Federal Declaratory Judgment Act (28 U.S.C. §§ 2201 and 2202, together with the jurisdictional grant contained in 28 U.S.C. § 1337) and also upon portions of the Clean Air Act, specifically 42 U.S.C. § 1857h-2.

Insofar as the Administrative Procedure Act and Declaratory Judgment Act are concerned, our Circuit has spoken very clearly in Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972) stating (page 356), "The Declaratory Judgment Act and APA could not afford a basis for jurisdiction."

Referring to 42 U.S.C. § 1857h-2 (Section 304 of the Act) it appears that plaintiff's claim for jurisdiction is based upon this language.

"Citizen suits—Establishment of right to bring suit

(a) Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—

. . . . . .

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be."

1857h-2(b) provides as follows:

"No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to 60 days after the plaintiff has given notice of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, . . ."

It appears from the complaint and the admissions of the parties that no such notice was given prior to the institution of this suit. We agree with the defendant that the Congress can specify in legislation terms upon which the government consents to be sued and such terms must be strictly followed. Hence, the court has no jurisdiction of this suit under that Section. Entirely aside from the notice provisions, we hold that this court has no jurisdiction under this Section for the reason that this covers only cases where the Administrator is being sued for failure to perform a non-discretionary duty. Here the plaintiff is attacking the Administrator's action in approving the Pennsylvania plan, and including therein a provision which prevents plaintiff from using the so-called tall stack as a method of compliance with the ambient air standards. A reference to 42 U.S.C. § 1857c-5 (Section 110) shows that the Administrator has ample discretion in determining approval of state plans, and hence it is the holding of this court that no suit will lie under 1857h-2.

The real obstacle in plaintiff's path, however, is 42 U.S.C. § 1857h-5(b) (Section 307) wherein it is provided:

"(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard under section 1857c —7 of this title, any standard of performance under section 1857c—6 of this title, any standard under section 1857f—1 of this title (other than a standard required to be prescribed under section 1857f—1(b)(1) of this title), any determination under section 1857f—1(b)(5) of this title, any control or prohibition under section 1857f —6c of this title, or any standard under section 1857f—9 of this title may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 1857c—5 of this title or section 1857c—6(d) 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, or after such date if such petition is based solely on grounds arising after such 30th day.

(2) 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."

Admittedly the plaintiff chose not to file an appeal with the Court of Appeals for the...