Petition — Environmental Protection Agency v. St. Joe Minerals Corp.

In the Si.preme Court of the Anited States

OcToBER TERM, 1974

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

v.

St. Joe MINERALS CORPORATION

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

ROBERT H. BORK,

Solicitor General,

WALLACE H. JOHNSON,

Assistant Attorney General,

GERALD P. NORTON,

Assistant to the Solicitor General,

EDMUND B. CLARK,

MARTIN GREEN,

JOHN E. VARNUM,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Pace

Opinion below-- |

Jurisdiction |

Question presented Baa 2

Statute involved_- 2

Statement 2

Reasons for granting the writ 4

Conclusion_- 11

Appendix A | | la

Appendix B. 13a

Appendix C_ l4a

CITATIONS

Cases:

Appalachian Power Co. v. Environmental Pro-

tection Agency, 477 I. 2d 495 : 7

Buckeye Power, Inc., v. Environmental Protec-

tion Agency, 481 I. 2d 162 8&9

Duquesne Light Co. v. Environmental Protec-

tion Agency, 481 I. 2d 1 3

Indiana & Mich. Elec. Co. v. Environmental

Protection Agency, 509 I. 2d 839. _ _- maa S

Train v. Natural Resources Defense Council,

Inc., No. 73-1742, decided April 16, 1975-. — . 4,

5, 6, 7, 9, 11

Union Elec. Co. v. Environmental Protection

Agency, No. 74-1614 (C.A. 8), filed March

27, 1975, petition for a writ of certiorari

pending, No. 74-1542____. ____-- — i)

(I)

Statutes and regulations:

Clean Air Act, 77 Stat. 392, as amended,

84 Stat. 1676, 42 U.S.C. 1857, et seq.: a

Section 109(b), 42 U.S.C. 1857¢e—4(b)____- 2

Section 110, 42 U.S.C. 1857¢e-5____----- -- 2

Section 110(a)(2), 42 U.S.C. 1857e-

SEN: its ono katana ee 2, 3, 4, 5, 10, 14a

Section 110(a)(2)(A), 42 U.S.C. 1857¢e-

Pe ecb biews 5

Section 110(a)(2)(A)-(H), 42 U.S.C.

1857c-5(a)(2)(A)-(H)- ~~~ --- = aetna’ 3

Section 110(a)(3), 42 U.S.C. 1857e-

DIN. csc xa ebudedenbeekenss une 5, 10, 11

Section 110(c), 42 U.S.C. 1857¢e-5(e) __ --. 3

Section 110(e), 42 U.S.C. 1857¢e—5(e) - - - - - 5

Section 110(f), 42 U.S.C. 1857¢e-5(f) _ _ - - - 6

Section 115(b)(4), 42 U.S.C. 1857d(b) (4). 5

Section 115(h), 42 U.S.C. 1857d(h) - - --. : 5

Section 307(b)(2), 42 U.S.C. 1857h-

Cac deckens Sarge fore ee aa 8

25 Pa. Code Regs. § 123.21(b)--.----------- 3

Miscellaneous:

re, ee en ad ceege een 3

S. Rep. No. 91-1196, 91st Corg., 2d Sess.

PE iccsscdsnseusbishnideasksasksans 6

SS

In the Supreme Court of the Cnited States

OctToBER TERM, 1974

No.

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

St. Jor MINERALS CORPORATION

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

The Solicitor General, on behalf of the Environ-

mental Protection Agency, petitions for a writ of cer-

tiorari to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, /ufra,

pp. la-12a) is reported at 508 F. 2d 743.

JURISDICTION

The judgment of the court of appeals was entered

on January 29, 1975 (App. B, infra, p. 13a). On

April 21, 1975, Mr. Justice Brennan extended the time

for filing a petition for a writ of certiorari to and in-

eluding May 29, 1975. On May 19, 1975, Mr. Justice

Brennan extended the time for filing a petition for a

(1)

2

writ of certiorari to and including June 28, 1975. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether, prior to approving a state implementation

plan under Section 110(a) (2) of the Clean Air Act, as

amended, 84 Stat. 1680, 42 U.S.C. 1857e-5(a) (2), the

Administrator of the Environmental Protection

Agency is required to determine that no sources of

emissions in the state will be unable, due to economic

or technological infeasibility, to comply with the

plan’s requirements.

STATUTE INVOLVED

Section 110(a) (2) of the Clean Air Act, as amended,

84 Stat. 1680, 42 U.S.C. 1857¢—5(a) (2), is set forth

in Appendix C, infra, p. 14a.

STATEMENT

Pursuant to Section 110 of the Clean Air Act, 42

U.S.C. 1857¢-5, each state is required to adopt and

submit to the Administrator of the Environmental

Protection Ageney (“EPA”) a plan providing for

the implementation, maintenance, and enforcement of

the national “primary” and “secondary” ambient air

quality standards within the air quality control re-

gions in that state. National primary standards are

those “requisite to protect the public health,” while

secondary standards are those “requisite to protect

the public welfare.” Section LO9(b), 42 U.S.C. 1857¢—

4(b). The Administrator must approve or disap-

prove a state plan within four months of its sub-

———

3

mission. 42 U.S.C. 1857¢e-5(a)(2). If he deter-

mines that the plan meets the requirements of

Section 110(a)(2)(A)-(H), 42 U.S.C. 1857¢-5(a) (2)

(A)-(I1), he is required to approve the plan. If he

finds the state plan deficient, then he must disapprove

it and, after giving the state an opportunity to revise

the plan, propose and promulgate his own regulations

correcting the deficiency. 42 U.S.C. 1857¢e-5(e).

On January 27, 1972, the Commonwealth of Penn-

sylvania submitted its implementation plan to the

Administrator, who, on May 31, 1972, approved the

provisions of the plan at issue here. 37 Fed. Reg.

10842, et seq. On June 26, 1972, respondent filed in the

court of appeals a petition for review challenging the

Administrator’s approval of the Pennsylvania plan.

One of the grounds on which respondent challenged

EPA’s approval was that certain of the emission limi-

tations concerning sulfur oxides (25 Pa. Code Regs.

§ 123.21(b)), were infeasible on economie and tech-

nological grounds as applied to respondent’s zine

smelter at Monaca, Pennsylvania. After a series of

procedural developments set out in the margin,’ the

‘Having consolidated the petition for review with another

such petition, the court of appeals initially decided that EPA

Was required either to give the petitioners before it a hearing

concerning their claims of infeasibility or to defer enforcement

of the plan against them pending resolution of their challenges

to the plan at the state level. Duquesne Light Co. y. Environ-

mental Protection Agency, 481 F.2d 1, 10 (CLA. 3). On remand

EPA elected the first alternative and, after providing an oppor-

tunity for comments by both sides on the feasibility issues, filed

with the court of appeals the augmented record and its conclu-

4

court of appeals coneluded that, in determining

whether to approve a state implementation plan, KPA

is required to consider whether the emission limita-

tions contained in the plan are economically and tech-

nologically feasible, and, if EPA determined they

were not, it could not validly approve the plan. Be-

‘ause EPA had found in this case (see pp. 5-4, n. 1,

supra) that the portion of the Pennsylvania plan for

controlling sulfur oxide emissions was not technologi-

cally feasible as applied to respondent’s plant, the

court vacated EPA’s approval of that plan.

REASONS FOR GRANTING THE WRIT

1. The decision of the court of appeats, in rejecting

I. PA’s considered interpretation of the Clean Air Act,

is contrary to the language and purpose of the Act as

construed in this Court’s subsequent decision in T'rain

v. Natural Resources Defense Council, Ine. No.

73-1742, decided April 16, 1975: (“N RDC”).

In VRDC this Court held that EPA is required to

approve a state implementation plan unless it contra-

venes one of the eight specifie requirements of Section

sion that the sulfur oxide emissions limitations of the Penn-

svivania plan were technologically infeasible as applied to

respondent's Monaca smelter (Pet. App. da). Regarding himself

as being precluded from disapproving the plan on that ground,

the Administrator notified Pennsvivania of his determination

of technological reg amd requested that it) revise tts

plan in that regard. The Administrator also stated his intention

to stay federal e nfore ement of that portion of the plan applicable

to respondent’s smelter pending administrative and judicial re

—-

view at the state level (/4/d/.).

5

110(a)(2) of the Act, 42 U.S.C. 1857¢-5(a)(2).? As

the court below acknowledged (Pet. App. 9a), none

of those requirements specifically deals with the issues

of economie or technological feasibility.’ As this Court

noted in NRDC, although the Act does address such

issues, it does so with respect to state implementa-

tion plans* only in the limited contexts of Section

1O(e) of the Act, 42 U.S.C. 1857¢-5(e), authorizing

MPA to approve a state’s application to extend at the

=VRPC dealt with EPA’s authority to approve a state’s

“revision” of a plan it had previously approved, but since

EPA’s authority to approve revisions is subject to the same

limitations as is its authority to approve plans in the first

instance (42 U.S.C. Is5Te-5(a)(3)), the Court’s analysis has

a direct and controlling bearing on the question in this case

concerning EP.A’s initial approval of a plan.

~The court of appeals asserted that to require EPA to re-

view the feasibility of all requirements of an implementation

plan “is not inconsistent with the statutery language” (Pet.

‘pp. 9a-10a). referring to the requirement of Section 110(a)

(2)(.A) that a plan provide for attainment of national pri-

mary standards “as expeditiously as pract cable * * *” and of

secondary standards within “a reasonable time * * *.” 42 U.S.C.

IS5Te-5(a)(2)(A) (1). Ci). However, that these temporal limi-

tations were not intended to require EPA to consider feasi-

bility fer all sources is indicated by the fact that “in no case” may

the plan provide for attainment of primary standards later

than three vears from its approval. 42 U.S.C. 1857e-!(a) (2)

(A) (1). “

‘With respect to court actions to abate air pollution through

the “conference” procedure (which is inapplicable to air pollu-

tants for which a national primary or secondary ambient air

quality standard is in effeet (42 TUS.C. lsdT7d(b) (4) ). the courts

are required to give “due consideration * * * to the physical

aml economic feasibility of securing abatement of any pollu-

tion proved * * *." 42 U.S.C. 1857d(h).

6 x

outset, for up to two years, the three-year period

within which each state must attain national primary

ambient air quality standards, and of Section 110(f),

42 U.S.C. 1857c-5(f), authorizing EPA to approve a

state’s application to postpone for one year a require-

ment of a state implementation plan that has already

been approved by EPA (see Train v. NRDC, supra,

slip op. at 13-15, 22-24).

The legislative history of the 1970 Amendments

reveals that Congress was well aware of the pos-

sibility that some polluters might be unable or un-

willing to implement the emission control measures

required by a state plan to attain or maintain national

air quality standards, and so would “be closed down.”’

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 3 (1970).

That possibility reflects the purpose of the Amend-

ments **to force technology to meet specified, scheduled

standards * * *”’ (Train v. NRDC, supra, slip op. at

28), and is implicit in **the Act’s encouragement of the

States to adopt plans even stricter than those required

to attain national standards.” Jd. at 12.

The Act leaves the states with “considerable latitude

in determining specifically how the [national air qual-

ity] standards would be met.”’ 7d. at 25. Thus, “the

State is at liberty to adopt whatever mix of emission

limitations it deems best suited to its particular situ-

ation’? (¢d. at 17), and thereafter has “continuing

authority to revise choices about the mix of emission

limitations.” Jd. at 252 “[S]Jo long as the ultimate

‘Should compliance with a requirement originally included

in a state plan prove to be truly infeasible for some sources, the

state could consider revising its plan at any time to grant them

a rr

7

effect of a State’s choice of emission limitations is

compliance with the national standards for ambient

air’’ (id. at 17), “[t]he Act gives the agency no au-

thority to question the wisdom of a State’s choices of

emission limitations * * *.”? Ibid.

In sum, the Act permits a state to choose to include

in its implementation plan emission limitations that

for some sources are economically or technologically

infeasible. EPA’s interpretation of the Act as (1) not

requiring it to consider claims of such infeasibility

when determining whether to approve a state plan,

and (2) not permitting it to disapprove a plan be-

cause of such infeasibility, “was sufficiently reason-

able to preclude the Court of Appeals from substitut-

ing its judgment for that of the Agency.” Id. at 25;

see id. at 13.

2. The decision of the court of appeals conflicts

directly with decisions of the Sixth, Seventh and

Eighth Circuits.” As matters now stand, EPA’s re-

sponsibility in approving state implementation plans

and its duty to consider claims regarding the tech-

nological or economic feasibility of such plans for

sources of emissions vary from circuit to circuit.

variances, so long as the revision does not compromise timely

attainment and maintenance of national air quality standards

within the state. Train v. NRDC, supra, slip op. at 36-37.

There is no reason to assume that sources with bona fide claims

of infeasibility would be unable to secure variances.

*The Fourth Cireuit has stated in dicta that it is “incon-

ceivable” that EPA would not evaluate the technological and

economic aspects of state plans, and that “such evaluation

[would not be] inappropriate.” Appalachian Power Co, vy. En-

cironmental Protection Agency, 477 F. 2d 495, 506 (CLA. 4).

8

Thus, the Sixth Circuit’ held in Buckeye Power,

Inc. v. Envivonmental Protection Agency, 481 F. 2d

162, that polluters “are not entitled to raise their

claims of high cost-benefit, technological infeasi-

blity and resource unavailability prior to the Adminis-

trator’s approval of the state plans * * *.” Td,

at 173. The court noted that Congress required EPA,

within a four-month period, to review and act on the

implementation plans of all 50 states, “affecting virtu-

ally every pollutant source in the United States”

(¢bid.), and that it could not be expected in that

process to hear such “complex and intricate claims”

concerning particular polluters. 7d. at 172.’

In Indiana & Mich. Elec. Co. v. Environmental Pro-

tection Agency, 509 F. 2d 839 (CLA. 7), decided prior

to the decision below, the Seventh Cireuit followed the

Sixth and held “that a plan’s technological feasibility

and economic impact are not among the factors

which the Administrator is obliged to consider under

Section 110(a)(2) * * *." Td at 844.

* The court added in dicta that an individual polluter’s claim

of infeasibility of a plan requirement could be asserted as a

defense in a federal or state enforcement — proceeding,

and that. because such claims could not be raised on judicial

review of EPA’s approval of a state plan, the preclusion pro-

vision of the Act (42 T.US.C. 185Th-5(b)(2)) would be inap-

plicable. 481 F. 2d at 173, As no enforcenient proceedings are

involved here, the correctness of the Sixth Cireuit’s assumption

is not directly at issue on this petition.

*The court also stated in d/efa that it agreed with the Sixth

Cirenit (seen. 7. spr) that such claims may be of significance

in enforcement proceedings. 509 F. 2d at 844-845.

c—

9

Most recently the Eighth Circuit, following the

Sixth Circuit’s decision in Buckeye on this issue, like-

wise concluded that “[i]t is clear that Congress in-

tended to preclude economic and technological factors

from the Administrator’s consideration of whether to

approve an implementation plan,” and that ‘‘[e]ven

if these grounds are considered by the Administrator,

the mandatory and directory language of § 110(a) (2)

would preclude using such grounds as a basis for

setting aside his action on a petition for review under

§ 307(b)(1)."”) Union Elec. Co. v. Environmental

Protection Agency, No, 74-1614 (C.A, 8), filed March

27, 1975, slip op. 17-18, petition for a writ of certio-

rari filed June 9, 1975, No. 74-1542.

3. Even if limited in effect to the heavily-indus-

trialized states within the Third Circuit (but see

p. 7, mn. 6, supra), the decision of the court of

appeals would have a severe and adverse effect on

EP A’s ability to cope with its ‘sharply increased * * *

responsibility in the continuing effort to combat air

pollution.” Train v. NRDC, supra, slip op. at 2-3. The

court of appeals’ interpretation of the Clean Air Act

appears to impose on EPA the enormously difficult

and burdensome task of considering and determining

whether each clement of a state’s implementation plan

is economically and technologically feasible for all

sources of emissions affected by the plan.’ In addi-

tion, by holding that individual claims of infeasibility

must be considered by EPA at the plan approval

*EPA advises that in Pennsylvania alone there are about

4,800 point sources of pollutants covered by national standards.

10

stage (and may be pursued on judicial review of

EPA’s approval of a plan), the decision invites pol-

luters to raise such issues even when they are only

potentially present; otherwise, the polluters would be

precluded from exercising any right they may have

to assert such claims in enforcement actions (see p.

8, n. 7, supra). EPA could not cope with such de-

mands on its limited resources within the four-month

period Congress has allotted it for acting on imple-

mentation plans or revisions thereof. 42 U.S.C. 1857¢—-

5(a)(2), (3).

These difficulties are compounded by the fact that

neither the Act nor the court’s decision provides any

specific standard for determining whether the ap-

plication of a requirement of a state plan to a par-

ticular polluter is economically or technologically in-

feasible—a situation that also invites litigation.

Athough EPA has already approved the initial

round of state implementation pians, the administra-

tive problems created by the decision below are still

significant. A second round of plan approvals lies

ahead because of the need to revise approved plans

that have not in fact resulted in timely attainment of

national standards or do not result in their main-

0

tenance after the attainment dates.’

‘° Most attainment deadlines for primary standards are just

now passing, and EPA is engaged in a comprehensive review

to determine whether the state plans have attained national

standards. Preliminary results indicate that there is significant

non-attainment.

11

In addition, EPA expects that it will in due course

adopt national standards for additional pollutants or

revised standards for those covered by existing stand-

ards, which would also occasion another round of plan

approvals.

Finally, since EPA must review revisions of state

pians under the same standards applicable to review

of the plans themselves (42 U.S.C. 1857¢-5(a) (3);

Tran v. NRDC, supra), the decision below may mean

that EPA must now consider feasibility claims in con-

nection with the numerous variances and other re-

Visions it reviews.

CONCLUSION

The petition for a writ of certiorari should be

eranted.,.

Respectfully submitted,

Rornerr H. Bork,

Solicitor General,

Waunacre HH, Jonunson,

Assistant Attorney General.

Greratp P. Norron,

Assistant to the Solicitor General.

EKpMUND CLARK,

MARTIN GREEN,

Joun FE. Varnem,

Attorneys.

Junge 1975.

APPENDIX A

UNITED STATES COURT OF APPEALS

For rur Tump Circuit

No. 72-1543

ST. JOE MINERALS CORPORATION,

Petitioner

— 9 eee

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

Own Perirron ror REvIEw or THE OrpDER OF THE

ADMINISTRATOR OF THE ENVIRONMENTAL

Protection AGENCY

Argued December 10, 1974

Before: AupisErt, ADAMs and Hunter, Circuit Judges.

la

2a

OPINION OF THE COURT

(Filed January 29, 1975)

Avams, Circuit Judge.

The pivotal issue in this appeal is whether the Ad-

ministraior of the Environmental Protection Agency is

vested with the authority to disapprove a state implementa-

tion plan, or one of its provisions, drafted pursuant to the

Clean Air Act Amendments of 1970, when the Adminis-

trator has found such plan to be ‘‘technologically in-

feasible.’’

I.

Under the Clean Air Act Amendments of 1970, the

Administrator of the Environmental Protection Ageney is

directed to promulgate national primary? and secondary *

ambient air quality standards for each air pollutant desig-

nated by the Administrator as having an adverse effect

upon the public health or welfare.’

The states are each required to develop an air pollution

control scheme by which the national ambient air quality

standards may be achieved within each state. The imple-

mentation plan of each state must then be submitted for the

approval of the Adininistrator.‘

Upon approval by the Administrator, the implementa-

tion plan developed by each state may be enforced by the

ee a — +

= Primary ambient air quality standards are those necessary, in the Admin-

gli jucgment, to protect national health. 42 U.S.C. §1857¢-4 (Supp

974). .

2. Secondary ambient air quality standards are those necessary, in the

‘aren ae s judgment, to preserve the general welfare. 42 U.S.C. § 1857c-4

(Supp. 1974).

49 -o c =o. ed ati >< .

i 3. 42 U.S.C. § 1857e-3, 1857c-4 (Supp. 1974). _The Administrator is to

include in the list of pollutants all substances for which air quality criteria had

Py =Te, +. . ° - ° ‘ Pm 4 7 r oe

previously been established and any others which, in the Administrator’s opinion

tractc: wy \¢ lie ° al f- “gee 7 acveens <

(1) detracted from the public health or welfare; (2) originated from numerous

sources; and (3) merited controls.

4. 42 U.S.C. §1857¢-4 (Supp. 1974). For «a more complete description of

the procedure, see Duquesne Light Co. v. E.P.A., 481 F.2d 1 (3d Cir, 1973) -

Buckeye Power, Inc. v. EPA, 491 F.2d 162 (6th Cir, 1973), ) 2973):

3a

Adininistrator, as well as the state. Under federal law, fines

and sentenees of imprisonment may be imposed on those who

refuse to comply with the plan.’ In addition, violators are

subject to enforcement suits by private individuals.*

St. Joe Minerals Corpuration operates a zine-smelting

plant at Monaca, Pennsylvania. These facilities emit

sulfur oxides, which are the subject of ambient air quality

standards established by the Administrator.

During December, 1971, the Commonwealth of Penn-

sylvania held four days of hearings focused on contrelling

sulfur oxide pollutants. The Commonwealth then sub-

mitted its implementation plan to the Administrator in

January, 1972. The regulations published by the Ad-

ministrator to assist the states in formulating their imple-

mentation plans included ‘‘Examples of Emission-Limita-

tions Attainable with Reasonably Available Technology.’’?

One of the examples was a standard for zine smelters, such

as that operated by St. Joe. The Pennsylvania implementa-

tion plan, however, which contained only one standard

governing all existing sources of sulfur oxide emissions

within the state, concededly was substantially more strin-

gent, when applied to a smelter, than the Administrator’s

example. Without conducting further hearings the Ad-

ministrator in May, 1972, approved Pennsylvania’s plan in

part and disapproved it in part.®

St. Joe filed with this Court a petition challenging the

Administrator’s approval of that portion of the Penn-

sylvunia implementation plan relating to sulfur oxide emis-

sions.” St. Joe alleged that the Administrator had not

5. 42 U.S.C. §1857c¢-8 (Supp. 1974).

6. 42 U.S.C. §1857c-2 (Supp. 1974)

7. 40 C.F.P. part 51.

8. According to St. Joe, the Administrator's standard would have required

St. Joe to recapture approximately 94% of the potential sulfur oxide emissions,

The Pennsylvania plan requires recapture of approximately 97%.

9, 37 Fed. Reg. 10842, 10889-91.

10. Similar petitions were filed by Duquesne Light Co., Pennsy!vania Power

Co. and Ohio Edison Co.

4a

fulfilled certain procedural requirements, and asked that the

case be remanded to the HPA. On January 22, 1973, this

Court granted the motion for a remand without specifying

the type of procedure to be followed by the EPA on the

remand. The HPA moved for clarification of the order or

for a rehearing. On the motion for clarification, after con-

sideration of the record of the state proceedings, this Court

stated that it was not convinced that St. Joe had been af-

forded ‘‘a truly meaningful hearing’’ regarding the tech-

nological and economic feasibility of the Pennsylvania

implementation plan. Moreover, the Court indicated that

events since the state proceedings may have rendered the

plan outdated. The EPA, therefore, was ordered either to

grant St. Joe a limited een iring on the technological and

economic feasibility of the plan or to suspend enforcement

of the plan against St. Joe while the company pursued

‘‘with due diligence’’ state administrative and judicial

remedics for its unfeasibility claims.”

Pursuant to this Court’s ruling, the EPA elected to

conduct an administrative hearing on the feasibility of the

plan. After considering written and oral presentations by

St. Joe, the Commonwealth and the EPA staff, the Ad-

ministrator, in a decision announced March 18, 1974, con-

cluded that the Pennsylvania provisions relating to sulfur

oxide emissions ‘fas applied to St. Joe Minerals Corpora-

tion’s smelter . . . [are] technologically infeasible.’’ He

therefore did not reach the question of economic feasibility.

The Administrator, however, interpreted the Clean Air Act

Ameudments ‘fas precluding any disapproval of the plan

on that basis.’’ He proposed instead to notify the Common-

wealth of his finding of technological infeasibility and to

request a revision. Furthermore, he proposed to stay fed-

eral enforcement of the plan pending state administrative

and judicial review of the plan.

1. Duquesne Light Co. v. Environmental Protection Agency, 481 F.2d 110

(3d Cir. 1973). The implementation plan remained in effect as to all potential

polluters except St. Joe, Duquesne Light, Pennsylvania Power and Ohio Edison.

5a

St. Joe petitioned this Court to review the Adminis-

trator’s refusal to disapprove the plan, alleging that the

Administrator’s refusal was based on an erroneous con-

struction of the law."

Il.

St. Joe contends that where the state has not provided

an adequate hearing on the issues of the technological and

economic feasibility of an emission limitation in a state

implementation plan and the limitation has not been

demonstrated to be essential to the achievement of a pri-

mary or secondary ambient air quality standard, the Ad-

ministrator must disapprove the limitation when he has

found it to be technologically or economically infeasible.

The Administrator, on the other hand, argues that if the

criteria set forth in section 110(a)(2) * are satisfied, sec-

12. 42 U.S.C. §1857¢-5 (Supp. 1974) requires that the Administrator either

“approve” or “disapprove” the plan within four months of submission.

13. 42 U.S.C. § 1857e-5(a) (2) (Supp. 1974) -

(2) The Administrator shall, within four months after the date required

for submission of a plan under pari wraph (1), approve or disapprove such

plan or cach portion thereof. The Administrator shall approve such plan,

or any portion thereof, if he determines that it was adopted after reasonable

notice and hearing and that—

(A) (i) in the case of a plan implementing a national primary

ambient air quality standard, it provides for the attainment of such

primary standard as expeditiously as practicable but (subject to sub-

section (c) of this seciion) in no case later than three years from the

date of approval of such plan (or any revision thereof to take account

of a revised primary stand: urd); and (ii) im the case of a plan imple-

menting a national secondary ambient air quality standard, it specifies

a reasonable time at which such secondary standard will be attained;

(B) it includes emission limitations, schedules, and timetables for

compliance with such limitations, and such other measures as may be

necessary to insure attainment and maintenance of such primary or

secondary standard, including, but not limited to, land-use and trans-

portation controls ;

(C) it includes provision for establishment and operation of appro-

priate devices, methods, systems, and procedures necessary to (i)

monitor, compile, and analy ve data on ambient air quality and, (ii)

upon request, make such data available to the Administrator;

(D) it includes a procedure, meeting the requirements of paragraph

(4), for review (prior to construction or modification) of the location

of new sources to which a standard of performance will apply;

(E) it contains adequate provisions for in tergovernmental coopera-

tion, including measures necessary to insure that emission s of air pol-

lutants from sources located in any air quality control region will not

“

va

tions 110(a)(2) and 116" require him to approve a pro-

vision of an implementation plan even though he has found

the provision to be technologically or economically 1a-

feasible and more restrictive than is necessary to attain

national ambient air quality standards. According to the

Administrator, to obtain a revision of the implementation

plan so as to couform to that which is technologically and

economically possible, St. Joe must resort to state adminis-

trative and judicial review. Furthermore, confining St. Joe

to state review, the agency suggests, is not inappropriate

since the Administrator has stayed federal enforcement of

the provision in question.

III.

Although judicial review of the actions of administra-

tive agencies is limited in scope, the Administrator’s ap-

proval of the sulfur oxide provision of the Pennsylvania

implementation plan cannot escape review by the Court of

Appeals if the agency’s decision is founded upon an incor-

13. (Cont’d.)

interfere with the attainment or maintenance of such primary or ‘ec-

ondary standard in any portion of such region outside of such State

or in any other air quality control region ;

(F) it provides (i) necessary assurances that the State will have

adequate personnel, funding, and authority to carry out such imple-

mentation plan, (ii) requirements for installation of equipment by

owners or operators of stationary sources to monitor emissions from

such sources, (iii) for periodic reports on the nature and amounts of

such emissions; (iv) that such reports shall be correlated by the State

agency with any emission limitations or standards established pursuant

to this chapter, which reports shall be available at reasonable times

for public inspection; and (v) for authority comparable to that in

section 1857h—1 of this title, and adequate contingency plans to

implement such authority ;

(G) it provides, to the extent necessary and practicable, for

periodic inspection and testing of motor vehicles to enforce compliance

with applicable emission standards; and

(H) it provides for revision, after public hearings, of such plan

(i) from time to time as may be necessary to take account of revisions

of such national primary or secondary ambient air quality standard or

the availability of improved or more expeditious methods of achieving

such primary or secondary standard; or (11) whenever the Adminis-

trator finds on the basis of information available to him that the plan

is substantially inadequate to achieve the national ambient air quality

primary or secondary standard which it implements.

14. 42 U.S.C. §1857d-1 (Supp. 1974).

Ja

rect conclusion of law.’ Therefore, we must determine

whether, under the circumstances here, sections 110 and

116 compel the Administrator to approve the prevision of

the Penasylvania plan thai he has found technologically

infeasible.

There appears to be no opinion which squarely ad-

dresses the precise issue raised on this appeal. However,

au interpretation of the Clean Air Act Amendments em-

powering the Administrator to disapprove the Pennsyl-

vania plan if he found it technologically unworkable is

implicit in our decision in Duquesne Light. If the Adminis-

trator has no authority to disapprove such plan or provi-

sion, there would have been no cause to remand the case to

the EPA so as to conduct a hearing on precisely this sub-

ject. Indeed, the agency argued in Duquesne Light, in

urging a denial of the remand, that the statute had not in-

tended the Administrator to consider economic and tech-

nological factors. Yet we ordered the remand.

The Court’s earlier decision in Getty Oil Co. v. Ruckel-

shaus is premised upon a similar reading of the duty of

the Administrator under sections 110 and 116. In Getty

Oil, Getty operated an oil refinery in Delaware and supplied

fluid petroleum coke, a by-product, to Delmarva Power and

Light Co., which operated a nearby power station. Del-

marva, in turn, supplied electricity and steam to the re-

finery. As part of its implementation plan, Delaware im-

posed a limit on the sulfur conient of fuels burned in the

area in which the Delmarva station was located. This por-

tion of the implementation plan was approved by the EPA,

and neither Getty nor Delmarva sought judicial review.

However, Getty subsequently asked the state to grant the

power station a variance so as to delay the effective date

15. 5 U.S.C. §§701(a), 706 (1965); Delaware Citizens for Clean Air v.

Admin., 489 F.2d 972, 9735-76 (3d Cir. 1973); Pennsylvania vy. E.P.A., No.

73-2121 (3d Cir., June 28, 1974). Sce United States v. Allan Drug Co., 357

F.2d 713 (10th Cir. 1966), cert. den. 385 U.S. 899 (1966): Kovac v. LN.S

aa 102 (9th Cir. 1969); Wheatley v. Adler, 407 F.2d 207 (D.C. Cir.

16. 467 F.2d 349 (3d Cir. 1972), cert. den. 409 U.S. 1125 (1973).

Sa

at the sulfur resiriciion. The relevant siate adudaistrative

agencies denied the variance, but when Getty sought review

in the Delaware courts, it obtained an order restraining the

state from enforcing the sulfur limitation.

While the state was so restrained, however, the EPA

ordered Delmarva to comply with the implementation plan

EPA had already approved. . Getty asked this Court to

revicw the compliance order. That order, Getty alleged,

deprived Getty of due process because national primary

air quality standards had al. eady been met in the area with-

out compliance, and because compliance, prior to the de-

velopment of alternative technology, would therefore im-

pose an unreasonable economic burden on Getty and

Delmarva. Significantly, this Court held that Getty at that

time was barred from obtaining judicial consideration of

its claims of technological and economic infeasibility since

Getty could hive obtained. such review at the time EPA

approved the implementation plan. Section 807(b),! the

Court reasoned, bars subsequent scrutiny of any claim that

could have been reviewed by a court of appeals at the time

of the Administrator’s approval of the plan.

An essential underpinning of this Court’s decision in

Getty Oil was the conclusion that the Court could have con-

sidered technological and economic objections to the state

implementation plan when the EPA approved it. If a court

of appeals is empowered to review, and presumably reverse,

the Administrator’s approval on technological and economic

grounds, then surely the Administrator nas the authority

to review the plan on those same grounds and disapprove

the plan, or a portion of it, if lie finds it unreasonable.

17. 42 U.S.C. § 1857h-5(b) :

(b)(1) ...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.

Ya

The Court of Appeals for the Fourth Circuit has

reached a similar conclusion with respect to the function

of the MPA when if considers implementation plans. Tn

Appalachian Power Co, vy. I.P?.A. the Administrator

argued that his task in reviewing implementation plans was

largely ministerial and that he does not consider either the

technological or the economic feasibility of the state plan

before approving it. ‘The court concluded, ‘‘We take no

such narrow view . . . of the Administrator’s role in

evaluating the state plan in connection with his exercise of

the power to approve or disapprove.”’

The Sixth Cireuit, like this one, u:s compelled the EPA

to allow interested parties an opportunity to present to the

EPA their claims that a proposed implementation plan is

technologically or economically impracticable.°? The Sixth

Circuit, therefore, has also implied that the EPA has the

power to reject a proffered plan on those bases.

Adinittedly, the Act does not expressly empower the

agency to disapprove a plan where restrictions are too

narrow to be practicable. Certainly, however, Congress

would have made its purpose more explicit if it had in-

tended by section 110(a)(2) to Innit the Administrator’s

authority so as to require him to effectuate an imple-

mentation plan even though compliance with such plan is

technologically infeasible and the constraints in the plan

have not been shown to be essential to the accomplishment

of the national standards.

A review by the EPA of the feasibility of an imple-

mentation plan is not inconsistent with the statutory lan-

18. 477 F.2d 495 (4th Cir. 1973).

19. 477 F.2d at 505. Since the Fourth Circuit had not received the full

record which had been before the Administrator it dismissed the motions to

remand the matter to the agency, without prejudice to the parties’ renewing

them after the record had been certified to the Court. 477 F.2d at 507-08.

20. In Buckeye Power, Inc. v. EPA, 481 F.2d 162, 173 (1973), the

Sixth Circuit held that the agency was required to conduct a rule-making

proceeding in conformity with 5 U.S.C. §553 to consider, inter alia, the

petitioners’ feasibility claims. However, unlike this Court in Getty, the Sixth

Circuit concluded that the petitioners would be entiiled to litigate those same

claims again in an enforcement proceeding.

10a

enage. The Administrator is directed to determine whether

an implementation plan provides for the attainmeat of pri-

mary ambient air quality standards ‘‘as expeditiously as

_ practicabl.’’ and secondary standards within ‘‘a reasonable

time.’’*? ‘hese temporal qualifications suggest that in

considering an implementation plan the Administrator

should evaluate the workability of the proposed limitations.

Disapproval of an implementation plan for techno-

logical reasons is not, as the Administrator argues, barred

by section 116.** Section 116 provides:

Except as otherwise provided . . . nothing in this

chapter shall preclude or deny the right of any State

or political subdivision thereof to adopt or enforce (1)

any standard or limitation respecting emissions of air

pollutants or (2) any requirement respecting control or

abatement of air pollution; except that if an emission

standard or limitation is in effect under an applicable

implementation plan . . . such state or political sub-

division may not adopt any emission standard or limi-

tation which is less stringent than the standard or

limitation under such plan or section.

The purport of section 116 is merely to permit the state,

under state law, to enforce stricter pollution controls than

those that are included in the EPA-approved implementa-

tion plan, while prohibiting the states from adopting any

measures less restrictive than the applicable federal imple-

mentation plan. Section 116 does not prevent the Adminis-

trator from adopting in an implementation plan a restric-

tion which is less severe than that which the state chooses

to enforce under state law.”*

21. 42 U.S.C. §1857c-5(a) (2) (A) (Supp. 1974) (emphasis added)

22. 42 U.S.C. §1857-d(1) (Supp. 1974).

23. The conference committee report on the 1970 Amendments to the Act

states only that:

Except with respect to standards for moving sources [of pollutants], the

states’ authority to adopt and enforce standards is applicable to air. quality

and emissions 1s retained in the conference substitute [bill]. Reprinted-at

3 U.S. Code Cong. & Admin. News 5373 (91st Cong. 2d Sess. 1970).

lla

Also, the procedures for evaluating an implementation

plan prior to the Administrator’s acceptance of it reflect

the importance of technological and economic factors not

specificnlly mentioned in section 110. The Administrator is

given four months to review the plan proposed by the

state.** During that period the plan is evaluated by a com-

mittee composed of representatives of other federal agencies

such as the Federal Power Commission, the Department of

Transportation, Labor, Commerce, and the Interior, as well

as the Office of Management and the Budget. Accordin,: to

the Administrator, this committee ‘review ,s] the aggre-

gate impact of all these implementation plans’’ and pro-

vides assistance ‘‘in determining the availability of fuels,

transportation programs, and public and private sector in-

vestment.’’* As the Fourth Circuit has observed, ‘‘It is

inconceivable that these agencies, acting with the Adminis-

trator, in determining ‘the aggregate impact’ of the plans

and ‘in determining the availability of fuels, transportation

programs and public and private sector investment,’ do not

consider and evaluate the technological and economic

aspects of the plans under review.’’ *°

IV.

The effect of the Administrator’s approval is not, as

the agency has claimed, nullified by the Admimstrator’s

statement that he will stay enforcement of the plan by the

EPA pending reconsideration by the Commonwealth. The

decision to stay is not binding on a successor to the present

Administrator. Indeed such a stay would not be enforce-

23. (Cont’d.)

Moreover, section 116 is derived from section 108 of the Air Quality Act of

1967, P.L. 90-148, which provided:

Nothing in this Title shall prevent a state . . . from adopting standards

and plans to implement an air quality program which will achieve a higher

level of atnbient air quality than approved by the Secretary.

24. 42 U.S.C. §1857c-5(2) (Supp. 1974).

25. See Hearings, Senate Subcomm. on Air and Water. Pollution, Comm.

on Public Works, 92d Cong., 2d Sess. (1972), at 230, 236, 256.

26. Appalachian Power Co. v. EPA, 477 F.2d 495, 506 (4th Cir. 1973).

12a

able by St. Joe even against the present Administrator.

Moreover, St. Joe is left vulnerable to private civil actions,

authorized by the Act, that might be brought to enforce

compliance by St. Joe with the approved implementation

plan.’ Thus, the approval of the plan by the EPA has

conerete adverse consequences for St. Joe despite the Ad-

ministrator’s undertaking to stay enforcement until the

Commonwealth has reconsidered its plan.

K'or the foregoing reasons, the approval by the Ad-

ministrator will be vacated and the matter remanded to the

Administrator for action consistent with this opinion.

27. 42 U.S.C. §1857h-2 (Supp. 1974).

A True Copy:

Teste:

"took af the Plait .

Clerk of the United States Court of Appeals

for the Third Circuit.

APPENDIX B

UNITED STATES COURT OF APPEALS FOR Tilz THIRD CIRCULT

Ko. 72-1543

ST. JOE MINERALS CORPORATION,

Petitioner

ve.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR REVIEW OF THE ORDER OF THE ADMINISTRATOR OF THE

EXVIRONMENTAL PROTECTION AGENCY

Present: ALDISERT, ADAMS and HUNTER, Circuit Judges

JUDGMENT

This cause came on to be heard on the certified list in lieu of the

record from the Environmental Protection Agency and was argued by -ounsel,

On consideration whereof, it is now here ordered and adjudged by this

Court that the approval of the Administrator of the said Environmental Protection

Agency be, and the same is hereby vacated and the matter is remanded to the Administretor

for action consietent with the opinian of this Court.

ATTEST:

January 29, 1975

APPENDIX C

Section 110(a)\(2) of the Clean Air Act, as

amended, 84 Stat. 1680, 42 U.S.C. 1857c—5(a)(2),

provides as follows:

(2) The Administrater shall, within four months

after the date required for submission of a plan

under paragraph (1), approve er disapprove such

plan, or any portion thereof. The Administrator

shall approve such plan, or any portion thereof, if

he determines thet it was adopted after reasonable

notice and hearing and that—

(A) G) in the case of a plan implementing a na-

tional primary ambient air quality standard, it

provides for the aftlainment of such primary

standard as expeditiously as practicable but (sub-

ject to subsection (e) of this section) in ho case

later than three years from the date of approval

of such plan (or any revision thereef to take

account of a revised primary standard) ; and (ii)

in the case of a plan implementing a nstional sec-

ondary ambient air quality standard, it specifies a

reasonable time at which such secondary standard

will be attained;

(B) it includes emission limitations, schedules,

and timetables for compliance with such limita:

tions, and such other measures as may be neces-

sary to insure attainment and maintenance of such

primary or secondary standard, including, but not

limited to, land-use and transportation controls;

‘C) it includes provision for establishment and

operation of appropriate devices, methods, sys-

tems, and procedures necessary to (i) monitor,

compile, and analyze data on ambient air quality

and, (ii) upon request, make such data available

to the Administrator;

(‘D) it includes a procedure, mecting the re-

quiretnents of paravraph (4), for reviews (prior

to comstruction or mod ticat.un) of the locauvon

of hiew sources to which a standard of perfornn-

ance will apply;

(EB) it contains adequate provisions for inter-

goveriunental cooperation, including measures

necessary to insure that emiss‘ons of air pollutants

from sources located In any air quality control

region will not interfere with the attainment or

maintenance of such primary or secondary stand-

ard in any portion of such region outside of such

State or in any ollie: air Quelity control region;

(F) it provides (i) necessary assurances that the

State will have adequate personnel, funding, and

authority to carry out such implementation plan,

(ii) requirements for installation of equipment by

owners or operators of stationary sources to moni-

tor emissions from such sources, (il.) for periodic

reports on the nature and amounts of such emis-

sions; (iv) that such reports shall be correlated

by the State agency with any emission limitations

or standards established pursuant to this chapter,

which reports shall be available at reasonable

times for public inspection; and (v) for authority

comparable to that in section 1857h-1 of this ttle,

and adequate contingency plans to implement

such authority;

(G) it provides, to the extent necessary ard

practicable, for periodic inspection and testing of

motor vehicles to enforce compliance with appli-

cable emission standards; and

(H) it provides for revision, after public hear-

ings, of such plan (4) from time to time as may be

necessary to take account of revisions of such na-

tional primary or secondary ambient air quelity

standard or the availability of improved or more

expeditious methods cf achieving such primery or

secondary standard; or (ii) whenever the Adininis-

trator finds on the basis of information available

to him that the plan js substantially inadequate to

achieve the national ambient alr quality primary

or secondary standard which it implements.

l4a