Appendix — West Penn Power Co. v. Train

| Supreme Court, U. &

FILED

IN THE OCT 22 wie

Supreme Court of the United Nate?

OcTOBER TERM, 1976

no... 4675674

WEST PENN POWER COMPANY,

a corporation,

Petitioner,

v.

RUSSELL TRAIN, Administrator of the Environmental

Protection Agency of the United States of America,

Respondent.

Petition for Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

APPENDIX

HAROLD R. SCHMIDT

LAWRENCE A. DEMASE

Ninth Floor, Oliver Building

Pittsburgh, Pennsylvania 15222

Counsel for Petitioner,

West Penn Power Company

Of Counsel:

FREDERICK W. STEINBERG

And

RosE, SCHMIDT AND DIXON

Ninth Floor, Oliver Building

Pittsburgh, Pennsylvania 15222

And

ROSE AND KUSHNICK

919 Eighteenth Street

Washington, D.C. 20006

SMITH BROS... LAW PRINTERS, 620 SECOND AVENUE. PITTSBURGH, PA. 15219

INDEX TO APPENDIX

PAGE

Appendix A—Amended Petition for Variance ........ la

Appendix B—Notice of Appeal! 8a

Appendix C—Amended Compl aint 22a

Appendix D—Petition for Re vid 32a

Appendix E—District Court Opinion at Docket No.

73-1083 dismissing Amended Complaint .......... 46a

Appendix F—District Court Memorandum and Or-

der at Docket No. 73-1083 denying Motion for

* . . 63a

Appendix G Court of Appeals’ Opinions (Ma-

jority and Dissenting) at Docket No. 74-2050

affirming dismissal of Amended Complaint 66a

Appendix H—Court of Appeals’ Order at Docket

No. 74-2050 denying Motion for Rehearing ... 108a

Appendix I—Court of Appeals’ Opinion at Docket

No. 75-1259 dismissing Petition for Review ... 110a

Appendix J—Court of Appeals’ Order at Docket

No. 75-1259 denying Motion for Rehearing and

Request for Extension of Stay of Enforcement 117a

Appendix K—Court of Appeals’ Order at Docket

No. 75-1259 staying issuance of certified judg-

rr 118a

Appendix L— Pennsylvania Department of En-

vironmental Resources’ Motion to Dismisss 119a

Appendix M—Pertinent Statutory and Constitu-

IKK — 127a

APPENDIX “A”

PENNSYLVANIA DEPARTMENT OF

ENVIRONMENTAL RESOURCES

BUREAU OF AIR QUALITY AND NOISE CONTROL

DIVISION OF ABATEMENT AND COMPLIANCE

Room 907 Health and Welfare Building

Harrisburg, Pennsylvania 17105

Amended Petition for Variance

Title 25, Part I, Subpart C, Article III, Chapter 141

Name, Address, and Telephone Number of

Petitioner

West Penn Power Company

800 Cabin Hill Drive

Greensburg, Pennsylvania 15601

Telephone: 412-837-3000

Name, Address, and Telephone Number of Person

Authorized to Receive Notices

Mr. Ralph J. Gunkle, Jr.—Secretary-Treasurer

West Penn Power Company

800 Cabin Hill Drive

Greensburg, Pennsylvania 15601

Telephone: 412-837-3000

Name and Location of Facility for Which Variance

Is Sought

Mitchell Power Station

Courtney, Union Township

Washington County, Pennsylvania

(Monongahela Valley air basin)

Type and Description of Facility

Coal-fired steam electric generating station consist-

ing of four boilers and related generating units

rated as follows:

2a

Amended Petition for Variance.

December Normal Seasonal

Operating Capacity

(1) Boiler No. 1

635 x 106 BTU/hr. 2 90 mw

(2) Boiler No. 2 Note 90 mw

635 x 106 BTU hr. !

>

(3) Boiler o. 3

635 x 106 BTU /hr.

(4) Boiler No. 33

2546.6 x 106 BTU/hr. 291 mw

Note: Boiler Nos. 1, 2, and 3 feed a common header,

which in turn feeds two turbine generators.

Nature and Quantity of Present Emissions Requir-

ing Variances

(a) PARTICULATE MATTER—Based upon stack

emission tests, particulate matter emissions are

presently 0.513 pounds per million BTU from

Boiler No. 1, 0.586 pounds per million BTU from

Boiler No. 2, 0.787 pounds per million BTU

from Boiler No. 3, and 0.210 pounds per million

BTU from Boiler No. 33.

(b) SULFUR COMPOUND EMISSIONS—Based

upon the percentages of sulfur in the coal

(2.6%), the BTU per pound of coal (12,620

BTU /Ib.), and an average of 90% of the sulfur

in the coal being emitted as sulfur dioxide, the

present sulfur dioxide emission is 3.71 pounds

per million BTU.

Sections of Regulations for Which Variance Is

Sought and Duration Thereof

(a) PARTICULATE MATTER EMISSIONS—Title 25, Part

I, Subpart C, Article III, Chapter 123, Section

123.11. It is requested that the variance be

granted for a period ending on January 18,

1974, for Boilers Nos. 1, 2, and 3, and for a

period ending November 1, 1973, for Boiler No.

33.

3a

Amended Petition for Variance.

(b) VISIER Emissions—Title 25, Part I, Subpart C,

Article III, Chapter 123, Section 123.41. It is

requested that the variance be granted for

periods equal to the periods listed in Subpart

(a), above.

(e) SuLFuR CoMPouUND EmIssions——Title 25, Part I,

Subpart C, Article III, Chapter 123, Section

123.22. It is requested that the variance be

granted for a period ending on January 18,

1974, for Boilers Nos. 1, 2, and 3, and for a

period ending on June 30, 1985, for Boiler No.

33.

The duration of the variance and the completion

dates set forth in (a), (b), and (c), above, are

based upon normal operating conditions and may

be extended in the event of war, natural disaster,

unforeseen circumstances, or other causes beyond

the reasonable control of West Penn Power Com-

pany.

Plan for Compliance Including Schedule for Comple-

tion of Intermediate Steps

(a) Boilers Nos. 1, 2, and 3—Particulate Matter

and Sulfur Compound Emissions.

Boilers Nos. 1, 2, and 3 will be converted to oil

firing. The compliance construction schedule is

presently planned as follows:

Engineering Preparation Complete

Complete Placement of

. Complete

Begin Construction Complete

Begin Outage for Tie-' in Nov. 3, 1973

| SEE Nr Dec. 23, 1973

Complete Operating

Adjustments ........................ Jan. 18, 1974

4a

Amended Petition for Variance.

(b) Boiler No. 33

(1)

(2)

Particulate Matter and Visual Emissions

Pursuant to Consent Order No. 71-367

dated June 3, 1971, and at a cost of $1.5

million, Petitioner constructed a new elec-

trostatic precipitator. This electrostatic

precipitator, placed in service on February

8, 1973, was designed to meet current par-

ticulate and visual emission standards us-

ing a coal supply having a sulfur content

of from 2% to 3%. Visual observations in-

dicate the particulate and visual emission

standards are being met. Performance

tests to confirm these observations are

scheduled for mid-June 1973.

Petitioner intends to conduct flue gas con-

ditioning tests with a lower sulfur coal

during the period from July 1, 1973, to

October 31, 1973, which tests may result

in emissions exceeding the particulate

and visual emission standards. Petitioner

therefore requests variances from these

standards until November 1, 1973.

Sulfur Compound Emissions

The existing coal supply currently having

an average monthly range from 1.9% to

2.6% sulfur will be utilized until July 1,

1973, in order to complete the performance

tests of ne new electrostatic precipitator.

From July 1, 1973, until October 31, 1973,

Petitioner will, on a test basis, burn Ken-

tucky coal having an average sulfur con-

tent of 0.88%.

5a

Amended Petition for Variance.

Use of the lower sulfur coal will result in

lowering collecting capabilities of tie elec-

trostatic precipitator and resultant non-

compliance with existing particulate and

visual emission standards. Petitioner will

attempt to counteract the lowering of col-

lection capability by chemical treatment of

the flue gas (gas conditioning). After No-

vember 1, 1973, Petitioner will comply

with particulate and visual emission stand-

ards and will utilize the lowest sulfur coal

consistent with this goal. At that time

Petitioner will, if necessary, proceed with

either one or the other of the following

alternatives to reduce ground-level con-

centrations of sulfur dioxide.

Alternative I

Upon receiving necessary approval, Peti-

tioner will install a sufficiently tall chim-

ney (tall stack)—in excess of 700 feet—

to assure that ground-level concentrations

from Petitioner’s stack will comply with

federal ground-level ambient-air standards

and to assure that the effective stack

height will pierce all possible ground-level

stagnation conditions in the Monongahela

Valley air basin. Petitioner will also install

ground-level monitoring stations to muni-

tor air quality. The cost of the tall stack

will he approximately $4.3 million, and the

stack will be in use 41 months after receipt

of final approval for its construction and

use. Upon completion of the tall stack,

Petitioner will comply with all applicable

ground-level concentration standards and

regulations but will require a ten-year vari-

6a

Amended Petition for Variance.

ance from existing emission standards to

amortize the cost of new equipment.

Alternative II

Petitioner will install sulfur-control equip-

ment as soon as commercially proven, reli-

able, and environmentally acceptable

equipment is available. Petitioner does not

believe it would serve any interest to dupli-

cate experimental projects already under

way at other installations until such proj-

ects are proven. However, Petitioner will

continue to investigate all processes for

sulfur removal not presently being tested,

and if any such processes not presently

being tested have, in Petitioner’s estima-

tion, a sufficiently high chance for success,

Petitioner will, with the consent of the

Department, install such test facilities.

The cost of a scrubber type of sulfur-con-

trol device would be in the range of $23

to $30 million and under present supply

conditions would require approximately 53

months to engineer and construct.

Therefore, under Alternative I, Petitioner

would comply with all applicable ground-

level concentration standards by April 1,

1977, but would require a variance from

existing emission regulations until June

30, 1985, in order to amortize the cost of

the facility. Under Alternative II, Peti-

tioner would require a variance from exist-

ing emission standards and ground-level

concentration standards at least until

April 1, 1978, and possibly for an extended

period thereafter, dependent upon the de-

7a

Amended Petition for Variance.

velopment of technology and future supply

conditions.

(c) Quarterly reports will be submitted showing

status of the oil conversions, the test program,

and any construction undertaken under Alter-

native I or II.

Reasons Compliance Plan Cannot Be Attained Prior

to Date of Petitioner’s Plan

Petitioner’s plan is predicated (1) upon engineer-

ing and fabrication lead times of Petitioner and

independent suppliers, (2) upon development of

new technology, (3) upon availability of fuel sup-

plies, (4) upon Petitioner’s system outage sched-

ules which must be compatible with outages at

other stations on the system for installation of en-

vironmental control devices, and (5) upon Peti-

tioner’s duty to render reasonably continuous reli-

able electric service to its customers.

Notice

Petitioner has complied with the notice provisions

of Chapter 141 and has supplied the Department

with proof of publication. Petitioner believes the

within amendments require no further notice under

Chapter 141.

WHEREFORE, Petitioner requests the Department of

Environmental Resources to grant Petitioner the

Variance set forth in Paragraph 6, above.

Date: June 7, 1973

WEST PENN POWER COMPANY

By C. G. McVay

Vice President, System Power Supply,

Allegheny Power Service Corporation,

Agent for West Penn Power Company

8a.

Notice of Appeal.

APPENDIX “B”

COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

HARRISBURG, PENNSYLVANIA

IN RE THE MATTER OF: DOCKET NO.

WEST PENN POWER COMPANY Appeal from

MITCHELL STATION, Order No.

Appellant 73-708-V

Notice of Appeal

AND Now comes the West Penn Power Company by

its attorneys Harold R. Schmidt, Lawrence A. Demase,

Edwin J. Strassburger, and Rose, Schmidt and Dixon

and files this appeal from the action of the Department

of Environmental Resources described herein:

1. The West Penn Power Company (West Penn“)

is a Pennsylvania corporation and public utility operat-

ing under authority granted to it pursuant to the Penn-

sylvania Public Utility law.

2. The Mitchell Power Station (“Mitchell”) is a

fossil iired steam electric generating facility of West

Penn located in Courtney, Union Township, Washington

County, Pennsylvania. Mitchell consists of four boilers

and three related turbo-generators. Boilers Nos. 1, 2,

and 3 each has a rated capacity of 635 x 106 BTU/hr. and

feeds a common header which in turn feeds turbo-gen-

erator units Nos. 1 and 2, each of which has a December

normal seasonal operating capacity of 90 megawatts.

Boiler No. 33 has a rated capacity of 2546.6 x 106 BTU/

hr. and feeds turbo-generator No. 33, which has a De-

cember normal seasonal operating capacity of 291 mega-

watts.

9a

Notice of Appeal.

3. On September 15, 1972 West Penn filed a peti-

tion for a variance from the visible, particulate and

sulfur compound air emission limitations of Sections

123.11, 123.22 and 123.41 of Chapter 123 of the Rules and

Regulations of the Department of Environmental Re-

sources. This petition was amended by West Penn on

June 7, 1973.

4. West Penn’s amended petition as filed on June

7, 1973 requested a variance from the aforesaid particu-

late and visible emission regulations until January 18,

1974 for Boilers Nos. 1, 2 and 3, and until November 1,

1973 for Boiler No. 33. The amended petition also re-

quested a variance from sulfur compound limitations

until January 18, 1974 for Boilers Nos. 1, 2 and 3 and

until June 30, 1985 for Boiler No. 33.

5. By letter dated September 19, 1973 the Depart-

ment of Environmental Resources (“Department”) con-

ditionally granted West Penn its requested variances for

Boilers Nos. 1, 2 and 3, and a variance from particulate

emission limitations for Boiler No. 33. The Department

denied, however, West Penn’s requested variance from

sulfur compound limitations for Boiler No. 33, and in-

stead granted West Penn a limited variance until June

30, 1976. Each of the above variances was conditioned

upon compliance with an integrated order of the Depart-

ment directing West Penn to file a specified schedule

leading to the installation of sulfur control equipment

for Boiler No. 33 by June 1, 1976. A copy of the Order

Granting Temporary Variance (“Order”) is attached

hereto and marked Exhibit A“. It is from the foregoing

Order of the Department which West Penn appeals.

6. West Penn is aggrieved by the action of the

Department in issuing the Order in the following man-

ner:

10a

Notice of Appeal.

a. A commercially proven, reliable and en-

vironmentally acceptable sulfur control device is

not presently available to be constructed and in-

stalled for use on Boiler No. 33, and even if avail-

able could not be constructed and operated by June

30, 1976.

b. If West Penn were to install presently

available sulfur control equipment for use on Boiler

No. 33 it could not achieve compliance with the

Department’s sulfur compound emissions regula-

tions in a reliable manner, and would unreasonably

interfere with West Penn’s responsibility as a public

utility to provide continuous and reliable electrical

power to its customers in the most economical man-

ner.

c. If a commercially proven, reliable and en-

vironmentally acceptable sulfur removal device were

available for use on Boiler No. 33, it would require

substantial amounts of electrical power for its own

operation, reducing available electrical power for

use by West Penn’s customers.

d. In issuing the Order the Department failed

to take into consideration the fact that there is not

sufficient space at Mitchell to install presently

known sulfur control equipment and related facili-

ties for use on Boiler No. 33, and at the same time

adequately to maintain sufficient coal reserves, oil

storage facilities, water pollution control facilities

and other facilities necessary for the operation of

the Mitchell Station.

e. In issuing the Order the Department failed

to take into consideration the fact that a tall stack

as proposed by West Penn would reduce ground

lla

Notice of Appeal.

level concentrations of sulfur oxides from Boiler

No. 33 to a greater extent than a sulfur control de-

vice that would meet the emission limitations set

forth in Section 123.22 of the Rules and Regulations

of the Department of Environmental Resources.

f. In issuing the Order the Department failed

to take into consideration the fact that a lack of

sufficient space at Mitchell for disposal of sludge

during the remaining life of Boiler No. 33 will mean

that a method will have to be developed to dewater

and fix such sludge so that it can be hauled away

for use in a landfill or similar disposal area.

7. West Penn objects to the action of the Depart-

ment in issuing the Order on the following grounds:

a. The enabling legislation upon which the

Order is premised, and the Rules and Regulations

issued pursuant thereto, do not empower the De-

partment to issue such an Order.

b. The Order is null and void because the pre-

requisites of Section 12(c) of the Air Pollution Con-

trol Act, as amended, 35 P.S. § 4012(c), to issuance

of such an Order have not been complied with by

the Department.

c. The Order of the Department of Environ-

mental Resources is invalid because:

1. It was promulgated pursuant to an unlaw-

ful delegation of legislative authority;

2. In the circumstances results in a taking of

property without due process of law and

without just compensation;

12a

Notice of Appeal.

3. In the circumstances constitutes an undue

burden on interstate commerce;

4. In the circumstances is in direct conflict

with the Public Utility Law of the Com-

monwealth of Pennsylvania;

5. In the circumstances it is arbitrary and

unreasonable;

6. Imposes a standard which in the circum-

stances is not attainable;

7. Imposes a standard which even if attain-

able in the circumstances is not necessary

to achieve the goals which the Air Pollu-

tion Control Act and the Rules and Regula-

tions of the Department of Environmental

Resources seek to attain;

8. It was promulgated in a manner which de-

nied West Penn procedural and substantive

due process.

d. There is no reasonable basis in fact for the

Department’s finding that the granting of the re-

quested variance based upon the plan submitted by

West Penn would prevent or interfere with the at-

tainment or maintenance of ambient air quality

standards within the time prescribed by the Clean

Air Act, as amended (42 U.S.C. 1857 et seq.), and

regulations promulgated thereunder.

e. There is no reasonable basis in fact for the

Department’s finding that sulfur control equipment

capable of reducing emissions from Boiler No. 33

which is commercially proven, reliable and environ-

13a

Notice of Appeal.

mentally acceptable could be constructed and in-

stalled at the Mitchell Station by June 1, 1976.

f. There is no reasonable basis in fact for the

Department’s finding that Alternate I of West

Penn’s amended variance petition does not provide

for compliance with Section 123.22 in a reasonable

time period.

g. There is no reasonable basis in fact for the

Department’s finding that the intermediate and com-

pletion dates set forth in West Penn’s amended

variance petition indicate that West Penn does not

intend to effect the control of particulate and sulfur

oxide emissions as quickly as is reasonably prac-

ticable.

h. Sections 141.2 and 141.4 of Chapter 141 of

the Rules and Regulations of the Department of

Environmental Resources entitled “Variances and

Standards” are invalid because they:

1. In the circumstances result in the taking

of property without due process of law and

without just compensation;

2. In the circumstances constitutes an undue

burden on interstate commerce;

3. In the circumstances are arbitrary and un-

" reasonable;

4. In the circumstances impose requirements,

which are not necessary to achieve the

goals which the Air Pollution Control Act

seeks to attain.

14a 15a

Notice of Appeal. Notice of Appeal.

i. The Air Pollution Control Act, Act of Jan- 9. The undersigned is authorized to receive any

uary 8, 1960, P.L. 2119, as amended, 35 P.S. § 4001, ; , pleading filed in this matter on behalf of West Penn.

et seq. is unconstitutional because:

1. It does not describe with sufficient partic-

ularity the powers delegated to the De-

partment;

Respectfully submitted,

Ros, SCHMIDT AND DIXON

By HAROLD R. SCHMIDT

By LAWRENCE A. DEMASE

2. In the circumstances it constitutes an in- By EDWIN J. STRASSBURGER

valid delegation of legislative authority; Attorneys for Appellant

3. In the circumstances results in the taking

of property without due process of law and West Penn Power Company

; : 7 919 Oliver Building

without just compensation; Pittsburgh, Pennsylvania 15222

4. In the circumstances constitutes an undue 412-281-3311

burden on interstate commerce. Of Counsel:

. t failed t ition i ‘ :

„„ nitro doen lo THOMAS HENDERSON, Esq.

800 Cabin Hill Drive

ment as provided in Section 141.3(3) of the Rules * ,

and Regulations of the Department of Environmen-

tal Resources.

Greensburg, Pennsylvania 15601

k. The Department failed to make provision

in its Order for strikes, breakdowns, equipment de-

lays, acts of God, governmental actions beyond

West Penn’s control, or other circumstances beyond

West Penn’s control which might delay installation

of a sulfur removal device.

8. The undersigned hereby certify that a copy of

this appeal has been served on the officer of the Depart-

ment of Environmental Resources responsible for the

action appealed and on the Bureau of Administrative

Enforcement, P. O. Box 2351, 709 Health and Welfare

Building, Harrisburg, Pennsylvania 17120. © e

16a

Notice of Appeal.

EXHIBIT “A”

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL RESOURCES

Fulton National Building

200 North Third Street

P. O. Box 2063

Harrisburg, PA 17120

September 19, 1973

CERTIFIED MAIL #143736

West Penn Power Company

800 Cabin Hill Drive

Greensburg, Pennsylvania 15601

Attention: Mr. Ralph J. Gunkle, Jr.

Secretary-Treasurer

Order No. 73-708-V

Gentlemen:

ORDER GRANTING TEMPORARY VARIANCE

Pursuant to Chapter 141, Section 141.2 of the Rules

and Regulations of the Department of Environmental

Resources, the West Penn Power Company submitted a

petition for a temporary variance dated September 15,

1972 and amended on June 7, 1973 requesting a variance

from the air contaminant emissions limitations of Sec-

tions 123.11, 123.22 and 123.41 of Chapter 123 for the

four boilers located at its Mitchell Power Station in

Courtney, Union Township, Washington County, Penn-

sylvania. Said petition indicated that said source is pres-

ently emitting air contaminants in violation of the lim-

itations set forth in Sections 123.11, 123.22 and 123.41

17a

Notice of Appeal.

and is causing air poilution as defined in the Air Pollu-

tion Control Act, the Act of January 8, 1960, P.L. 2119,

as amended, 35 P. S., §4001, et seq.

The petition as amended seeks a variance from the

particulate matter and visible emissions limitations of

Sections 123.11 and 123.41 until January 18, 1974 for

Boilers Nos. 1, 2 and 3, and until November 1, 1973 for

Boiler No. 33. The petition also seeks a variance from the

sulfur compound emissions limitations of Section 123.22

until January 18, 1974 for Boilers Nos. 1, 2 and 3, and

until June 30, 1985 for Boiler No. 33. Boiler Nos. 1, 2

and 3 are to be converted to oil firing by January 18,

1974. Two alternate plans have been proposed for control

of sulfur dioxide emissions from Boiler No. 33. Alter-

nate I provides for the installation of a stack which the

company believes would achieve compliance with the

ambient air quality standards only, by April 1, 1977 but

would not achieve compliance with the emission stand-

ards until June 30, 1985. Alternate II provides for the

installation of sulfur dioxide control equipment with

compliance being obtained by April 1, 1978 or an ex-

tended period thereafter.

Upon a review of the petition (a copy of said peti-

tion is attached hereto and marked Exhibit A“), and

accompanying materials, testimony (if any) received at

public hearing, and upon other information available to

the Department dealing with the availability of tech-

nology to control sulfur dioxide emissions, the Depart-

ment finds that:

1. The granting of such a variance may prevent

or interfere with attainment or maintenance of ambient

air standards within the time prescribed by the Federal

Clean Air Act and Rules and Regulations promulgated

thereunder.

18a

Notice of Appeal.

2. Alternate I does not provide for compliance with

Section 123.22 in a reasonable time period and is there-

fore not acceptable to the Department.

3. The granting of the variance, as requested, for

implementation of Alternate II is not reasonable inas-

much as the intermediate dates, and the completion date

Set forth in the petition do not indicate that the company

intends to effect the control of the source as quickly as

is reasonably practicable.

Now, THEREFORE, this 19th day of September, 1973,

the Department hereby grants a variance and further

orders that the West Penn Power Company, its succes-

sors and assigns, shall:

(a) on or before June 30, 1976 complete the imple-

mentation of Alternate IT of the control plan set

forth in the aforementioned amended petition

for a variance, which plan is hereby incorpo-

rated herein and made a part hereof;

(b) complete implementation of the control plan

with respect to the control of particulate matter

and sulfur compound emissions from Boilers

Nos. 1, 2 and 3 and particulate matter emissions

from Boiler No. 33 on or before the dates speci-

fied in the amended petition which are respec-

tively January 18, 1974 and November 1, 1973;

(e) on and after January 18, 1974 operate its Boilers

Nos. 1, 2 and 3 located at its Mitchell Power

Station in Courtney, Union Township, Washing-

ton County, Pennsylvania, in such a manner as

to maintain the emissions of air contaminants

to within all applicable limits specified in Chap-

ter 123 of the Rules and Regulations of the

Department of Environmental Resources;

19a

Notice of Appeal.

(d) on and after November 1, 1973 operate its

Boiler No. 33 located at its Mitchell Power Sta-

tion in Courtney, Union Township, Washington

County, Pennsylvania, in such a manner as to

maintain the emissions of particulate matter

and visible emissions to within all applicable

limits specified in Chapter 123 of the Rules and

Regulations of the Department of Environmen-

tal Resources;

(e) on and after June 30, 1976 operate its afore-

mentioned Boiler No. 33 in such a manner as to

maintain the emissions of sulfur compounds to

within the limits specified in Chapter 123 of the

Rules and Regulations of the Department of

Environmental Resources; and,

(f) submit quarterly progress reports to the De-

partment of Environmental Resources, com-

mencing on October 1, 1973 and continuing

thereafter until compliance with paragraph (a)

of this order is achieved.

The foregoing variance is granted on condition that

paragraphs (a), (b), (c), (d), (e) and (f) of the fore-

going order are complied with within the time specified

for compliance and on the following further conditions:

(1) On or before April 1, 1974, details of the com-

pany’s plans shall be submitted to the Department, set-

ting forth a detailed description of the methods or de-

vices to be used to control the sulfur dioxide emissions

from Boiler No. 33 and a schedule indicating the dates

upon which each intermediate step of the plan is to be

completed.

20a

Notice of Appeal.

(2) Purchase orders for equipment necessary for

compliance with paragraph (a) of this order shall be

placed no later than July 1, 1974, and proof thereof shall

be submitted to the Department within five (5) days

after such orders are placed.

(3) On-site construction or installation of emis-

sion control equipment shall be initiated on or before

December 1, 1974.

(4) On-site construction or installation of emis-

sion control equipment shall be completed on or before

June 1, 1976.

(5) Specifications for a continuous sulfur dioxide

and percent opacity stack monitoring and recording sys-

tem shall be submitted to the Department for approval

on or before December 1, 1974.

(6) Commencing July 31, 1975, quarterly monitor-

ing reports containing sulfur dioxide concentrations and

percent opacity readings shall be submitted to the De-

partment in accordance with guidelines provided by the

Department.

Compliance with the foregoing order shali be ob-

tained in a manner that will not violate the Environ-

mental Protection Statutes and Rules and Regulations

promulgated thereunder.

Nothing contained in this order shall be construed

to prevent or limit the application of the provisions of

Chapter 137 of the Rules and Regulations of the Depart-

ment of Environmental Resources which relates to air

pollution episodes.

Chapter 127 of the Rules and Regulations of the De-

partment of Environmental Resources requires plan ap-

21a

Notice of Appeal.

proval prior to the construction or modification of an

emission source. Applications for such plan approval are

enclosed. Please complete these forms and return them,

in duplicate, with the plan details required in special

condition (1) of this order to Mr. Nicholas Pazuchanics,

Regional Air Pollution Control Engineer, Room 850,

Kossman Building, 100 Forbes Avenue, Pittsburgh,

Pennsylvania 15222.

Any questions in connection with this action of the

Department of Environmental Resources, as well as all

progress reports, should be directed to the Bureau of Air

Quality and Noise Control, Department of Environmen-

tal Resources, Fulton National Building, 200 North Third

Street, Post Office Box 2063, Harrisburg, Pennsylvania

17120.

Very truly yours,

JAMES K. HAMBRIGHT, Chief

Division of Abatement & Compliance

Bureau of Air Quality & Noise Control

Attachments

Notice of Appeal

Rules of Practice and Procedure

Rules & Regulations of the Department

of Environmental Resources

Applications for Chapter 127

Exhibit “A”—Petition for Variance

22a

Amended Complaint.

APPENDIX “C”

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WEST PENN POWER COMPANY, )

a corporation,

Plaintiff,

v.

RUSSELL TRAIN, Administrator of the En- Civil

vironmental Protection Agency of the Action

United States of America, MAURICE K. No.

GODDARD, individually and as Secretary of 73-1083

the Department of Environmental Re-

sources and DEPARTMENT OF ENVIRON-

MENTAL RESOURCES of the Commonwealth

of Pennsylvania,

Defendants.

Amended Complaint

AND Now, comes the Plaintiff West Penn Power

Company by its attorneys Rose, Schmidt and Dixon and

brings this cause of action against the Defendants

whereof the following is a statement:

1. Plaintiff, West Penn Power Company, is a Penn-

sylvania corporation and public utility organized and

operating under the authority granted to it pursuant to

the Pennsylvania Public Utility Law, 66 P.S. 1101 et

seq., and having its principal place of business in

Greensburg, Pennsylvania. West Penn Power provides

electrical utility service for approximately 470,000 cus-

tomers in the southwestern and north central portions

of the Commonwealth of Pennsylvania.

2. Pursuant to its authority under the Pennsyl-

vania Public Utility Law, 66 P.S. 1101 et seq., Plaintiff

23a

Amended Complaint.

operates the Mitchell Power Station, a fossil-fired elec-

tric generating facility in Washington County, Penn-

sylvania.

3. Defendant, Russell Train, is the Administrator

of the Environmental Protection Agency of the United

States of America (‘‘Administrator” herein) charged

with the responsibility under the Clean Air Act, 42

U.S.C., $1857 et seq. of approving or disapproving plans

of the States for the implementation of national ambient

air quality standards, and in cooperation with the

States, of the enforcement of plans approved by the

Administrator for the implementation of national am-

bient air quality standards.

4. Defendant, Department of Environmental Re-

sources of the Commonwealth of Pennsylvania (“De-

partment” herein) is an administrative agency of the

Commonwealth of Pennsylvania authorized by the

Pennsylvania Air Pollution Control Act, 35 P.S. 4000

et seq. to prepare and develop a comprehensive plan for

the control and abatement of air pollution in the Com-

monwealth of Pennsylvania.

5. Defendant, Maurice K. Goddard, is Secretary of

the Department of Environmental Resources, charged

with exercising the powers and performing the duties

vested in the Department.

6. This Court’s jurisdiction is based upon the

Clean Air Act, 42 U.S.C. §1857 et seq., specifically 42

U.S.C. §1857h-2; The Administrative Procedure Act, 5

U.S.C. 8701 et seq.; The Federal Declaratory Judgment

Act, 28 U.S.C. §§2201 and 2202; and 28 U.S.C. §1337.

7. The Clean Air Act, 42 U.S.C. §1857 et seq., is an

Act of Congress regulating commerce.

24a

Amended Complcint.

8. On information and belief plaintiff avers that

the Administrator of the Environmental Protection

Agency has approved the plan submitted to it by de-

fendant Department for the implementation of national

ambient air quality standards in the Commonwealth of

Pennsylvania. The plan approved by the defendant Ad-

ministrator included the rules and regulations of the

defendant Department with respect to the attainment

of national primary ambient air quality standards for

particulate matter and sulfur oxides as well as rules and

regulations with respect to variances from emission

standards for particulate matter and sulfur oxides.

9. On or about September 15, 1972, pursuant to

Chapter 141 of Title 25 of the Rules and Regulations of

the Department of Environmental Resources, 25 Pa.

Code 141, plaintiff petitioned the defendant Department

for a variance from the particulate matter and sulfur

compound emission limitations contained in the Com-

monwealth of Pennsylvania’s plan for the implementa-

tion of national primary ambient air quality standards

for Boiler No. 33 of plaintiff's Mitchell Power Station,

and for variances from the particulate matter and sul-

fur compound emission limitations for three other boil-

ers at the Mitchell Station. The petition for variance

was amended on or about June 7, 1973. A copy of plain-

tiff's Amended Variance Petition is attached hereto and

marked Exhibit A“.

10. Plaintiff proposed in its amended petition for

variance from the aforesaid sulfur compound emission

limitations for Boiler No. 33 to reduce the ground level

ambient concentrations of sulfur compounds emitted by

the combustion of coal in Boiler No. 33 to a level suffi-

cient to achieve national primary ambient air quality

25a

Amended Complaint.

standards through the use of coal with a sulfur content

of .88 per centum and by the construction of a stack in

excess of 700 feet in height as an alternative to the in-

stallation of a sulfur emission control device.

11. On or about September 13, 1973 the Regional

Administrator of Region III of the United States Envi-

ronmental Protection Agency, purportedly acting pur-

suant to Section 113 (a) (1) of the Clean Air Act, noti-

fied the plaintiff that the Mitchell Power Station was in

violation of the Commonwealth of Pennsylvania’s plan

for the implementation of national primary ambient air

quality standards for sulfur oxides and particulate

matter.

12. On or about September 19, 1973 the defendant

Department, pursuant to Order No. 73-708-V, rejected

plaintiff’s proposal in its petition for variance to use a

tall stack on Boiler No. 33 of the Mitchell Power Station

for the attainment of the national primary ambient air

quality standards for sulfur oxides, and directed plain-

tiff to install a sulfur emission control device on Boiler

No. 33 of the Mitchell Power Station. A copy of the

Order, which has been appealed to the appropriate ad-

ministrative body, is attached hereto and marked Ex-

hibit B“.

13. Plaintiff believes and, therefore, avers that

there are no sulfur emission control devices presently

available for use on Boiler No. 33 of the Mitchell Power

Station which will enable plaintiff to comply with the

Department’s sulfur oxide regulations.

14. Plaintiff believes and, therefore, avers that if

it is required to install a sulfur emission control device

on Boiler No. 33, the generating capacity and reliability

26a

Amended Complaint.

of the Mitchell Power Station will be substantially re-

duced and plaintiff’s ability to maintain a continuous and

reliable supply of electric power to its customers will be

impaired.

15. Plaintiff believes and, therefore, avers that if

it is required to install a sulfur emission control device

on Boiler No. 33 of the Mitchell Power Station it may

needlessly be forced to expend as much as twenty-three

million dollars ($23,000,000) for principal capital invest-

ment (exclusive of costs related to waste disposal) and

may incur additional unwarranted annual operating and

capital costs (exclusive of costs related to waste dis-

posal) in excess of six million five hundred thousand

dollars ($6,500,000) for equipment which cannot be

operated in an efficient, reliable or environmentally ac-

ceptable manner. This represents a 67% increase in

annual ownership and production costs for the Mitchell

Power Station alone, and costs of this magnitude would

necessitate, at a minimum, a 5% rate increase to plain-

tiff’s customers which plaintiff believes to be unjustified

by any corresponding environmental benefit.

16. Plaintiff believes and, therefore, avers that a

tall stack will reduce ground level concentrations of

sulfur oxides to one-tenth (1/10) or less the ground level

concentration of sulfur oxides resulting from the instal-

lation of a sulfur emission control device on Boiler No.

33 which would comply with the Commonwealth of

Pennsylvania’s sulfur emission limitations.

17. Plaintiff believes and, therefore, avers that if

a throwaway or first generation sulfur emission control

device were installed on Boiler No. 33, and operated con-

tinuously (plaintiff, however, believes that there are no

sulfur emission control devices presently available which

27a

Amended Complaint.

can be operated reliably for an extended period and

which would permit plaintiff to comply with the Depart-

ment’s sulfur oxide regulations), over the twenty-five

(25) year life of Boiler No. 33 would produce approxi-

mately three (3) million tons of waste product, or

enough waste product to cover an area of approximately

eleven hundred (1100) acres to a depth of one foot; an

area which would thereby needlessly be rendered useless

for ordinary purposes unless a satisfactory process is

developed to convert such waste products into a material

that can be used or disposed of in a constructive and en-

vironmentally sound manner. Assuming that Boiler No.

33 of the Mitchell Power Station was operated at a con-

stant load and the waste product produced by a sulfur

emission control device had to be trucked away, it would

require the use of approximately thirty-four (34) ten-

ton trucks each day to accomplish the disposal of this

material with the resultant waste of valuable economic

and natural resources. Plaintiff further believes there is

presently no satisfactory process which will convert

waste products from a throwaway or first generation

sulfur emission control device into a material that can

be used or disposed of in a constructive and environ-

mentally sound manner.

18. Plaintiff believes and, therefore, avers that if

it is required to install a throwaway or first generation

sulfur emission control device on Boiler No. 33 of the

Mitchell Power Station that the disposal of the millions

of tons of unstable waste product produced by such a

device may lead to the pollution of ground waters at the

disposal site by hazardous chemical materials unless a

satisfactory process is developed to convert such waste

products into a material that can be used or disposed of

in an environmentally acceptable manner.

28a

Amended Complaint.

19. Plaintiff believes and, therefore, avers that if

it is required to install a throwaway or first generation

sulfur emission control device on Boiler No. 33 that the

disposal of the millions of tons of unstable waste prod-

uct produced by such a device may create a substantial

safety hazard to those who come into contact with it and

those who live in the vicinity of the disposal site unless

a satisfactory process is developed to convert such

waste products into a material that can be used or dis-

posed of in a safe and environmentally acceptable man-

ner.

20. On information and belief plaintiff avers that

the defendant Administrator has interpreted the Clean

Air Act, 42 U.S.C. 1857 et seq. as prohibiting the use of a

tall stack as a primary method for the attainment of

national primary ambient air quality standards for

sulfur oxides.

21. Plaintiff believes, and therefore, avers that the

defendant Administrator has exceeded his authority and

has contravened the intent of the Congress of the United

States by interpreting the Clean Air Act, 42 U.S.C. 1857,

et seq. as prohibiting the use of a tall stack as a primary

method for the attainment of national primary ambient

air quality standards for sulfur oxides.

22. Plaintiff believes and, therefore, avers that the

defendant Administrator’s aforesaid interpretation of

the Clean Air Act, 42 U.S.C. §1857 et seq. will result in

an unconscionable waste of natural resources, will fur-

ther aggravate the serious energy shortage now facing

the nation, and will create unnecessary and unreason-

able economic burden for plaintiff’s customers without

a corresponding benefit to the environment.

29a

Amended Complaint.

23. Plaintiff believes and, therefore, avers that the

defendants Department and Goddard, because of the

aforesaid interpretation of the Clean Air Act, 42 U.S.C.

81857 et seq. by the defendant Administrator, have

failed to promulgate regulations permitting the use of

a tall stack as part of Pennsylvania’s plan for the imple-

mentation of national primary ambient air quality

standards for sulfur oxides. *

24. Plaintiff believes and, therefore, avers that de-

fendants Department and Goddard, through their

agents, servants, employees or attorneys, because of the

aforesaid interpretation of the Clean Air Act, 42 U.S.C.

§1857 et seq. by the defendant Administrator, rejected

plaintiff’s variance request.

25. Plaintiff believes and, therefore, avers that the

defendants Department and Goddard through their

agents, servants, employees or attorneys, because of the

aforesaid interpretation of the Clean Air Act, 42 U.S.C.

81857 et seq. by the defendant Administrator, ordered

plaintiff to install a sulfur emission control device which

will not permit plaintiff to comply with Pennsylvania’s

implementation plan with respect to sulfur oxides.

26. Plaintiff believes and, therefore, avers that the

defendant Administrator has breached his non-discre-

tionary statutory duties under Sections 108 and 110 of

the Clean Air Act, 42 U.S.C. §§1857c-3 and 1857c-5. By

failing to promulgate guidelines for an alternative

method for the attainment of national primary ambient

air quality standards for sulfur oxides in those cases

where emission control devices will not effect compliance

with the Pennsylvania implementation plan.

27. Plaintiff believes and, therefore, avers that

defendant Administrator has breached his non-discre-

30a

Amended Complaint.

tionary duty under Section 113 of the Clean Air Act,

42 U.S.C. §1857c-8.

28. There is a substantial and actual justiciable

controversy between plaintiff and defendants as to the

aforesaid interpretation of the Clean Air Act, 42 U.S.C.

1857 et seq. and the authority of defendants with re-

spect thereto, which cannot be resolved without sub-

jecting plaintiff and its officers, agents and employees

to substantial criminal and civil penalties.

WHEREFORE, plaintiff prays:

1. That the defendants be required to appear and

answer this Amended Complaint.

2. For a decree declaring that the defendants are

without right to reject plaintiff’s plan for compliance

with national primary ambient air quality standards

for sulfur oxides by the use of tall stacks.

3. For a decree declaring that the plaintiff is not

in violation of the Commonwealth of Pennsylvania’s

plan for the control and abatement of air pollution ap-

proved by the Administrator pursuant. to the provisions

of the Clean Air Act, 42 U.S.C. 1857 et seq.

4. For a preliminary injunction enjoining the de-

fendant Administrator and all in privity with said de-

fendant from proceeding to enforce the notice of viola-

tion issued pursuant to Section 113 of the Clean Air Act.

5. For a preliminary injunction enjoining defend-

ants Department and Goddard and all in privity with

said defendants from proceeding to enforce their Order

directing plaintiff to install a sulfur emission control

device.

6. For permanent injunctions of the same purport

and tenor as the preliminary injunctions herein prayed

for.

3la

Amended Complaint.

7. For a Judgment for its costs, disbursements and

reasonable attorney’s fees incurred by plaintiff herein.

8. For such other and further relief as this Hon-

orable Court may deem appropriate.

Respectfully submitted,

ROSE, SCHMIDT AND DIXON

By Harold R. Schmidt

By Lawrence A. Demase

919 Oliver Building

Pittsburgh, Pennsylvania 15222

Attorneys for Plaintiff,

West Penn Power Company

Of Counsel:

Thomas K. Henderson

West Penn Power Company

Cabin Hill

Greensburg, Pennsylvania 15601

Petition for Review.

APPENDIX “D”

IN THE

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

WEST PENN POWER COMPANY,

a corporation,

Petitioner

vs. N Docket No.

RUSSELL TRAIN, Administrator of the En- ae

vironmental Protection Agency of the

United States of America,

Respondent

Petition for Review

Harold R. Schmidt

Lawrence A. Demase

Edwin J. Strassburger

ROSE, SCHMIDT AND DIXON

Attorneys for Petitioner

West Penn Power Company

919 Oliver Building

Pittsburgh, Pennsylvania 15222

AND Now, comes the Petitioner, WEST PENN POWER

COMPANY, by its attorneys, Rose, Schmidt and Dixon,

and files the within Petition for Review whereof the

following is a statement:

1. Petitioner, WEsT PENN POWER COMPANY, is a

Pennsylvania corporation and public utility organized

and operating under the authority granted to it pursuant

to the Pennsylvania Public Utility Law, 66 P.S. 1101

et seq., and having its principal place of business in

Greensburg, Pennsylvania. Petitioner provides electrical

33a

Petition for Review.

utility service for approximately 470,000 customers in

the southwestern and north central portions of the Com-

monwealth of Pennsylvania.

2. West Penn operates the Mitchell Power Station,

an electric generating facility located in Union Township,

Washington County, Pennsylvania, comprised of units

Nos. 1 and 2 (Boilers 1, 2 and 3) each having a Decem-

ber normal seasonal operating capacity of 90 megawatts

and unit No. 3 (Boiler 33) having a December normal

seasonal operating capacity of 291 megawatts. Boiler

Nos. 1, 2 and 3 are oil fired. Boiler No. 33 is coal fired.

3. Respondent, RUSSELL TRAIN, is the Adminis-

trator of the Environmental Protection Agency of the

United States of America (hereinafter “Administrator”

and EPA“) charged with responsibility under the Clean

Air Act, 42 U.S.C. §1857 et seq. for approving or disap-

proving plans of the States for the implementation of

national ambient air quality standards, and in coopera-

tion with the States, for the administration of such plans

approved by him.

4. On May 31, 1972, pursuant to his specific author-

ity under Section 110 of the Clean Air Act, 42 U.S.C.

§1857c-5, the Administrator approved Pennsylvania’s

implementation plan as set forth in 25 Pa. Code 5121.1

et seq., which included, inter alia, emission limitations

for sulfur oxides. In approving the Pennsylvania imple-

mentation plan, the Administrator failed to take into

consideration whether said plan was technologically and

economically feasible generally, or as applied to the

Mitchell Power Station specifically. See, St. Joe Minerals

Corporation v. Environmental Protection Agency,

F.2d .... (3rd Cir. 1975).

Petition for Review.

5. West Penn hereby petitions the Court for review

of the order of May 31, 1972, pursuant to Section 307

(b) (1) of the Clean Air Act, 42 U.S.C. §1857h-5(b) (1),

which provides in pertinent part:

“A petition for review of the Administrator’s

action in approving or promulgating any imple-

mentation plan under section 1857c-5 of this title

may be filed only in the United States Court of Ap-

peals 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.” (Emphasis added).

6. The instant petition, filed more than 30 days

after such approval, challenges only the sulfur compound

limitations contained in Section 123.22 of the approved

Pennsylvania implementation plan as the same is applied

to the Mitchell Power Station, and is based solely on

grounds arising since said 30 day period. These new

grounds, however, can only be understood in relation to

various state and federal action with respect to the

Mitchell Power Station and Boiler No. 33 which has

taken place during the intervening time.

7. On or about September 15, 1972, as contemplated

by the approved Pennsylvania implementation plan, spe-

cifically 25 Pa. Code §141.5, West Penn filed with the

Pennsylvania Department of Environmental Resources

(hereinafter “DER”) a Petition for Variance from the

sulfur oxide standards contained in the implementation

plan. Said petition, the filing of which operated as a stay

of prosecution for a period of at least one year, requested

additional time to bring Boiler No. 33 into compliance

with those standards by either converting to low sulfur

35a

Petition for Review.

oil, or by the installation of a sulfur emission control

device if a commercially proven and reliable one became

available for use at the Mitchell Power Station. A copy

of West Penn’s Petition for Variance is attached hereto

as Exhibit A“.

8. On or about June 7, 1973, no disposition having

been made of its variance petition described above, West

Penn filed an Amended Petition for Variance with the

DER. Said amended petition was precipitated by the

increased cost of low sulfur fuel oil, which development

had rendered far more difficult and unattractive the oil

firing proposed for Boiler No. 33 in the original petition.

In place of an oil conversion, as an interim measure,

West Penn proposed the construction of a tall stack to

insure attainment of national ambient air quality goals

and the burning of low sulfur coal until such time as a

reliable and environmentally sound sulfur emission con-

trol device became commercially available for use on

Boiler No. 33. A copy of West Penn’s Amended Petition

for Variance is attached hereto as Exhibit B“.

9. On or about September 13, 1973, the Regional

Administrator of Region III of the EPA, purportedly

acting pursuant to Section 113(a) (1) of the Clean Air

Act, 42 U.S.C. §1857c-8(a) (1), notified West Penn that

the Mitchell Power Station was in violation of, inter alia,

the sulfur emissions limitations of the Pennsylvania im-

plementation plan.

10. On or about September 19, 1973, the DER

granted West Penn a variance from its sulfur emission

standards until June 30, 1976, rejecting, however, West

Penn’s proposal for the use of a tall stack on Boiler No.

33 and directing installation of a sulfur emission control

device. Pursuant to the implementation plan and ap-

36a

Petition for Review.

plicable statutes and regulations, this action of the DER

was appealed to the Pennsylvania Environmental Hear-

ing Board which, despite West Penn’s efforts, has yet to

conduct a hearing. West Penn believes that this lack of a

hearing is a direct result of the issuance of the Notice

of Violation referred to in Paragraph 7 above, as well as

of the subsequent issuance of a compliance order as set

forth in Paragraph 13.1

1. On December 20, 1973, West Penn filed a com-

plaint for declaratory and equitable relief against the

Administrator and the DER in the United States District

Court for the Western District of Pennsylvania. Said

complaint sought, inter alia, a decree that by virtue of

the grant of a variance by the DER West Penn was not

in violation of the Pennsylvania implementation plan and

that construction of a tall stack on Boiler No. 33 was the

only method then available for achieving national am-

bient air quality goals. An amended complaint, adding

the Secretary of the DER as a defendant and asserting

additional jurisdictional grounds, was subsequently filed.

On June 19, 1974, the District Court dismissed the

amended complaint for lack of jurisdiction holding, rely-

ing on Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3rd

Cir. 1972), cert denied, 409 U.S. 1125, that the issues pre-

sented by West Penn should have been raised in an ap-

peal to this Honorable Court in June of 1972 pursuant

to Section 307 of the Clean Air Act. Following the denial

of its Motion for Reconsideration, West Penn filed an

appeal with this Honorable Court on September 11, 1974,

docketed at No. 74-2050.

On February 25, 1975, in response to the Adminis-

trator’s issuance of a compliance order referred to in

Paragraph 13, infra, West Penn filed a Motion for Injunc-

tion Pending Appeal. As a result of the Administrator’s

agreement to amend that compliance order, which was

in fact done on March 5, 1975, the Court directed that

disposition of the motion be consolidated with that on

the merits, presently scheduled for April 28, 1975.

37a

Petition for Review.

11. By the express terms of the Pennsylvania

implementation plan, all sources were required to be in

compliance with the standards contained therein imme-

diately upon approval on May 31, 1972. It was generally

recognized, however, that immediate compliance for a

great many sources, including West Penn’s Boiler No.

33, was physically impossible, and that the reasonable-

ness of the implementation plan was necessarily depend-

ent upon subsequently issued compliance schedules

tailored to individual source capabilities. In fact, com-

pliance schedules were submitted by Pennsylvania and

approved by the Administrator for a great many sources.

40 C. F. R. 52036. The grant of a variance, however, for

Boiler No. 33 by the DER on September 19, 1973 was

never submitted as a compliance schedule.

12. Between October 18, 1973 and November 2,

1973, the EPA held a public conference to investigate,

inter alia, the state-of-the-art and availability of sulfur

emission control devices. West Penn presented testi-

mony at this conference, which constituted the Agency’s

first public consideration of such devices. See, Du-

quesne Light v. EPA, 481 F.2d 1 (3rd Cir. 1973).

13. On December 19, 1974, following numerous

meetings with representatives of Region III of the EPA,

and pursuant to a public solicitation for proposals, West

Penn offered to participate, in cooperation with the

West Penn wishes to state that the filing of the

within petition is not intended as a waiver of the con-

tentions raised in the appeal presently pending, spe-

cifically, that the District Court has jurisdiction to con-

sider the invalidity of the Notice of Violation and that

denial of a hearing on all of West Penn’s claims has re-

sulted in a denial of due process. West Penn believes that

the two proceedings, although related, are complemen-

tary rather than mutually inconsistent.

38a

Petition for Review.

EPA, in the development of a regenerative sulfur emis-

sion control device for Boiler No. 33. A copy of West

Penn’s offer is attached hereto as Exhibit C“. On Feb-

ruary 20, 1975, while this offer was still pending, West

Penn received a compliance order, purportedly issued

by the Administrator pursuant to Section 113(a) (1) of

the Clean Air Act, 42 U.S.C. §1857c-8(a)(1) which

order required submission of a plan for reducing sulfur

emissions from Boiler No. 33 to the level required by the

Pennsylvania implementation plan by March 1, 1976,

if West Penn elected to switch to oil, or by December

31, 1978, if West Penn elected to install a desulfuriza-

tion device.?

14. Viewing the instant petition in light of the

foregoing, West Penn believes and therefore avers that

the following circumstances, not present within 30 days

of the Administrator's approval of the Pennsylvania im-

plementation plan on May 31, 1972, support the juris-

diction of this Court to review the reasonableness of

that plan:

(a) Conversion of Boiler No. 33 to oil, pro-

posed in West Penn’s original Petition for Variance

to the DER as the only effective method then avail-

able for complying with Pennsylvania’s implemen-

tation plan, has since been rendered impractical, if

not impossible, by the following developments:

2. West Penn is no longer being considered for

participation in the EPA’s program for the development

of an advanced sulfur emission control device. See Com-

merce Business Daily, March 10, 1975. Although the

Contract Management Division of the EPA has not ad-

vised West Penn that its participation was rejected be-

cause of the issuance of the February 20, 1975 Compli-

ance Order, West Penn believes that that action at least

indirectly foreclosed consideration of West Penn’s offer.

39a

Petition for Review.

(1) As a result of the Mideast War of

October, 1973 and resulting Arab oil embargo,

and subsequent policies of the Arab oil-pro-

ducing nations, the cost of oil has risen dra-

matically. No. 6 fuel oil, approximately 11.7¢/

gal. in September, 1972, cost 39.9¢/gal. in Jan-

uary, 1975. Assuming an equivalent load fac-

tor, conversion of Boiler No. 33 from coal to oil

at present rates would increase West Penn’s

annual fuel costs for the Mitchell Power Sta-

tion in excess of $25,000,000 per year.

(2) Since June, 1972, the availability of

oil has decreased sharply. As a result, West

Penn may not be able to obtain an adequate

long-term commitment of sufficient quantities

to warrant a conversion to oil. Even if such a

commitment could be obtained, domestic refin-

ing capacity is inadequate to guarantee a sup-

ply of fuel oil. Consequently, West Penn would

be forced, in all probability, to utilize off-shore

supply and refining capacity and to transport

its fuel supply from off-shore facilities. Fur-

thermore, West Penn would likely be required

to finance, either through capital funding or

increased unit prices, the construction of neces-

sary refining capacity. The above constraints

would result in extraordinary and unreason-

able expense and necessitate substantial rate

increases to West Penn’s customers.

(3) Assuming price and supply obstacles

could be overcome, recent federal legislation

operates as a severe restraint, and possibly

precludes, West Penn’s option to convert

Petition for Review.

Boiler No. 33 to oil. See, e.g., The Energy Sup-

ply and Environmental Coordination Act of

1974, P.L. 93-319; Executive Order 11-748;

Federal Energy Office Order 3 of February 5,

1974.

(4) As reflected in President Gerald

Ford’s recent State of the Union Address on

January 15, 1975, conversion of Boiler No. 33

to oil would be contrary to the national energy

policy. Specifically, the President stated that

the goals of that policy are, inter alia, to reduce

foreign oil imports one million barrels per day

by the end of 1975 and two million barrels by

the end of 1977; to eliminate completely by

1985 United States dependence on foreign oil

supplies; and to encourage the construction of

power plants that do not use natural gas or oil.

(b) Installation of a sulfur emission control

device, proposed by West Penn as an alternate

method of compliance with the Pennsylvania imple-

mentation plan in West Penn’s amended Petition

for Variance for the Mitchell Power Station, if one

were commercially available, has been rendered im-

practicable, if not impossible, by the following de-

velopments occurring subsequent to June 30, 1972:

(1) An effective solution to the problem

of waste disposal from a so-called “throw-

away” sulfur emission control device,* pro-

3. As used herein, a throw-away sulfur emission

control device is one which produces an unusable waste

by-product and which requires a constant addition of

the scrubbing agent to the system. Such devices are

sometimes referred to as first generation scrubbers.

4la

Petition for Review.

posed for installation on Boiler No. 33, which

was anticipated in June of 1972, has not yet

been developed. It is estimated that over the

twenty-five (25) years life of Boiler No. 33

such a device would create approximately 3

million tons of waste product, or enough to

cover 1100 acres to a depth of one foot. Areas

utilized for waste disposal would be rendered

useless for ordinary purposes. Because of se-

vere space limitations at the Mitchell Power

Station, on-site waste disposal is totally fore-

closed. The myriad obstacles to off-site dis-

posal have not been overcome.“

(2) “Regenerative” sulfur emission con-

trol devices,5 which may obviate problems of

4. Off-site waste disposal would be prohibited, in

the absence of an overriding order by the Pennsylvania

Public Utility Commission, by the no-dumping ordinance

of Union Township, where the Mitchell Power Station

is located. Moreover, off-site disposal would also create

actual or potential conflict with the Pennsylvania Solid

Waste Management Act, 35 P.S. Supp. §6001 et seq.

Assuming the above preliminary obstacles were

overcome, before proceeding to install a desulfurization

system on Boiler No. 33, West Penn would be uired

to obtain a suitable land disposal site; an air pollution

installation permit, an industrial waste permit, a solid

waste management permit, a sedimentation and erosion

control permit, and a dams and encroachment permit, all

from the DER; a National Pollution Discharge Elimi-

nation System Permit from the EPA; and a certificate

of public convenience and necessity to construct a pipe-

line to the disposal site, if condemnation is necessary.

5. As used herein, a regenerative sulfur emission

control device is one which produces a usable by-prod-

uct (e.g. elemental sulfur) and which recycles the scrub-

bing agent. Such devices are sometimes referred to as

second generation scrubbers.

Petition for Review.

waste disposal, have not developed, as antici-

pated in June of 1972, to the point where a

commercially proven and _ environmentally

sound system is presently available for imme-

diate full-scale installation on Boiler No. 33.

Such a device, even if developed for use at the

Mitchell Power Station, could not be completed

until 1983.

(3) Scientific theory suggests that under

certain circumstances the gases emitted from

the stack of a coal-fired boiler utilizing a sul-

fur emission control device may cause deleteri-

ous effects in the immediate vicinity of such a

boiler, effects which are not experienced when

gases are emitted from the stack of a coal-

fired boiler without a sulfur emission control

device. It is believed that further investigation

of this theory is warranted before West Penn

is required to install a device which will sub-

stantially increase electric rates of West Penn's

customers and which may, as in the case of the

recently discredited catalytic converter in the

automotive field (see Wall Street Journal of

March 6, 1975), increase the potential for ad-

verse health effects.

(c) In June of 1972, installation of a sulfur

emission control device on Boiler No. 33, if one had

been available, would not have unduly strained West

Penn’s financial position because of relatively mod-

est capital expenditure projections, substantial in-

ternal cash generation, a steady growth in sales, a

low inflation rate, ample fuel supplies, moderate

escalations in coal costs, a strong AA bond rating,

43a

Petition for Review.

interest rates between 7 and 714%, ability to obtain

equity funds at well above book value,® and a favor-

able regulatory climate (West Penn had not re-

quested or received a general rate increase since the

mid-1950’s; indeed, the cost of electricity had gen-

erally been declining) .

At the present time, however, West Penn’s

ability to finance the installation of a scrubber, now

estimated to cost in the neighborhood of $50 million,

is doubtful at best, for the following reasons, among

others: Projected capital construction costs have

risen almost 100% ; a lower growth in sales is pro-

jected; coal costs have skyrocketed and delays in

recovery of those costs, together with rampant in-

flation, have eroded normal internal cash genera-

tion; interest rates remain near 10% ; equity funds

can only be obtained at below book values; current

earnings only marginally support the AA bond rat-

ing; and the regulatory climate is characterized by

active consumer opposition to increasing electric

rates.

West Penn estimates that just to carry out its

currently projected construction program for facili-

ties necessary to assure continued adequate and re-

liable service, i.e., without allowing for installation

of a $50 million sulfur emission control device, will

require timely rate increases from the Pennsylvania

Public Utility Commission in annual amounts far

more substantial than those requested in the past,

excluding fuel adjustment clause increases. If such

6. West Penn is a subsidiary of — Power

tem, Inc. and West Penn's equity funding must be

obtained through its parent company.

Petition for Review.

relief is not forthcoming, the Company’s financing

ability will be severely restricted and construction

must be cut back.

(d) Recent information developed by the

EPA, as well as others, suggests that sulfur dioxide

limitations applicable to the Mitchell Power Station

and contained in the Pennsylvania implementation

plan may be based upon erroneous assumptions con-

cerning the effect of this air contaminant on public

health.

(e) Until February 18, 1975, when the Admin-

istrator issued to West Penn an order requiring

Boiler No. 33 to comply with the sulfur emission

standards of the Pennsylvania implementation plan

by December 31, 1978 (later extended to March 1,

1979) if West Penn elected to install a desulfuriza-

tion system, or by March 1, 1976 (later extended to

May 1, 1976) if a fuel switch was selected as the

method of compliance, West Penn had no formal

action by the Administrator upon which to base a

challenge to the reasonableness of the Pennsylvania

implementation plan and to the Administrator’s

interpretation of that plan.7

(f) The only means presently available to

West Penn to comply with the sulfur dioxide stand-

ards contained in Pennsylvania’s impleinentation

plan is to shut down the Mitchell Power Station.

Such a course of action requires approval from the

Pennsylvania Public Utility Commission, which may

or may not be granted.

7. See the opinion of the District Court in the

action referred to in footnote 1, supra.

45a

Petition for Review.

Based upon the foregoing, it is respectfully sub-

mitted that West Penn’s challenge to the Administrator’s

approval of the sulfur oxide emission limitations in the

Pennsylvania implementation plan is based solely on

grounds arising after June 30, 1972 and that the juris-

diction of this Honorable Court to consider that chal-

lenge exists pursuant to Section 307(b) (1) of the Clean

Air Act, 42 U.S.C. §1857h-5(b) (1).

West Penn requests, therefore, that this Honorable

Court direct the respondent Administrator to conduct a

hearing to receive evidence pertaining to those new

grounds and to reconsider the Pennsylvania implemen-

tation plan in light of such evidence adduced, and that

the Court grant such other relief which is deemed ap-

propriate under the circumstances.

Respectfully submitted,

Rose, SCHMIDT AND DIXON

By HAROLD R. SCHMIDT

By LAWRENCE A. DEMASE

By EDWIN J. STRASSBURGER

Attorneys for Petitioner

West Penn Power Company

919 Oliver Building

Pittsburgh, Pennsylvania 15222

Dated: March 20, 1975

Opinion.

APPENDIX “E”

In THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

+

WEST PENN POWER COMPANY

v.

RUSSELL TRAIN, Administrator of the En-

vironmental Protection Agency of the

United States of America and DEPART- Pron

MEN

ENT OF ENVIRONMENTAL RESOURCES of the ‘ No. 73-1083

Commonwealth of Pennsylvania and

MAURICE K. GODDARD, individually and as

Secretary of the Department of Environ-

mental Resources

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 Adminis-

trator) and Maurice K. Goddard, individually and as

Secretary of the Department of Environmental Re-

sources, and the Department of Environmental Re-

sources of the Commonwealth of Pennsylvania (here-

inafter 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

47a

Opinion.

“fossil-fired” electric generating facility in Washington

County, Pennsylvania and also seeks a declaratory judg-

ment 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 com-

plained 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 elec-

tric 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 com-

prehensive scheme for the control of air pollution

throughout the United States. In 1857(c) (5) (Section

110) provision is made for filing of state implementa-

tion plans to conform with national air quality stan-

dards 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 ap-

proval. Provision is made for action by the —

tor in promulgating a plan where the state does not act.

Opinion.

The complaint is not clear as to exactly when the

Pennsylvania plan for implementation of the national

ambient air quality standards for Pennsylvania was ap-

proved 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 Ad-

ministrator 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 ques-

tion but postponed compliance until June 30, 1976, when

they directed plaintiff to install a sulphur emission con-

trol 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 Penn-

sylvania plan. It is therefore claimed that the federal

defendant has breached his non-discretionary duties un-

der Sections 108 and 110 of the Act (42 U.S.C. 1857c—

3 and 5).

49a

Opinion.

The Pennsylvania legislation under which the state

defendants and proceeding is found is 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 penal-

ties of $10,000 plus $2,500 for each day. This would

appear enough to constitute irreparable harm for a pre-

liminary injunction if the plaintiff was in the proper

judicial forum.

A. Suit Against The Federal Defendants.

Insofar as the federal defendants are concerned,

plaintiff asks relief for a decree declaring that neither

defendants have 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

1. “2. Pursuant to its authority under the Penn-

sylvania Public Utility Law, 66 P.S. 1101 et seq,

Plaintiff operates the Mitchell Power Station, a

fossil-fired electric generating facility in Washing-

ton County, Pennsylvania.

3. Defendant, Russell Train, is the Adminis-

trator of the Environmental Protection Agency of

the United States of America (“Administrator”

herein) charged with the responsibility under the

Clean Air Act, 42 U.S.C. 1857 et seq of approving

or disapproving plans of the States for the imple-

mentation of national ambient air quality standards

and, in cooperation with the States, of the enforce-

ment of plans approved by the Administrator for

the implementation of national ambient air quality

standards.

Opinion.

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.

Footnote 1 continued from page 49a.

’ 4. Defendant, Department of Environmental

Resources of the Commonwealth of Pennsylvania

(“Department” herein) is an administrative agency

of the Commonwealth of Pennsylvania authorized

by the Pennsylvania Air Pollution Control Act, 35

P.S. 4000 et seq. to prepare and develop a compre-

hensive plan for the control and abatement of air

pollution in the Commonwealth of Pennsylvania.

6. This Court’s jurisdiction is based upon the

Clean Air Act, 42 U.S.C. 1857 et seq, specifically 42

U.S.C. 1857h-2; the Administrative Procedure Act,

5 U.S.C. 701 et seq; The Federal Declaratory Judg-

—_ Act, 28 U.S.C. 2201 and 2202 and 28 U.S.C.

1337.

7. The Clean Air Act, 42 U.S.C. 1857 et seq is

an Act of Congress regulating commerce.

8. On information and belief plaintiff avers

that the Administrator of the Environmental Pro-

tection Agency has approved the plan submitted to

it by defendant Department for the implementation

of national ambient air quality standards in the

Commonwealth of Pennsylvania. The plan approved

by the defendant Administrator included the rules

and regulations of the defendant Department with

respect to the attainment of national primary am-

bient air quality standards for particulate matter

and sulfur oxides as well as rules and regulations

with respect to variances from emission standards

for particulate matter and sulfur oxides.”

51a

Opinion.

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 Admin‘s-

trator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship 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 Admin-

52a

Opinion.

istrator, (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 jurisdic-

tion 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 ap-

proving 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 Adminis-

trator in promulgating any national primary or

secondary ambient air quality standard, any emis-

sion 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

53a

Opinion.

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—4c 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 Admin-

istrator’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 promulga-

tion 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 Third Circuit, which

appears to be the appropriate court, within 30 days and

comes in now at this late date (suit was filed December

20, 1973) well over a year later in an attempt to secure

injunctions and declaratory judgments in this district

court against the actions of the Administrator.

Again our Circuit in Getty Oil, supra, has spoken

very clearly on this matter:

“ . . 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 jurisdic-

tion. Getty’s arguments against enforcement require

Opinion.

a determination by the court whether the regulation

is unnecessary, unreasonable or capricious. Whether

Getty abides in the regulation ‘in its general applica-

tion’ is immaterial. If Congress specifically desig-

nates 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.”

The court further said:

“No appeal was taken from the Administrator's

approval of the implementation plan to the court

of appeals as provided by the Clean Air Act. Instead,

Getty chose to seek a restraining order in the

Chancery Court of Delaware in December of 1971.”

Getty thereafter brought a suit in the United States

District Court for the District of Delaware and the Court

of Appeals held that the plaintiff company was attempt-

ing an end run around the act by seeking pre-enforce-

ment judicial review. The court held that there was no

jurisdiction in the district court and remanded the case

with directions to the district court to enter an order

of dismissal for lack of jurisdiction. The court further

said:

“The Administrator has a responsibility to see

that a state plan will meet the national standards.

Because of that responsibility, he has a vital inter-

est in determining whether a particular deferral

will have the effect of preventing attainment or

55a

Opinion.

maintenance of the national standard. However,

until the criteria of 40 CFR 51.32(a) through (f)

are met, the Administrator is duty bound to enforce

an approved implementation plan.

“Getty’s protestations of good faith attempts

to bind suitable technology which would enable it

to comply do not affect the Administrator’s duty of

enforcement. Likewise, the conditions established

for postponement of compliance with 42 U.S.C.

1857c—5(f) (1) are not available to Getty in any

event.“

We agree that the granting of the variance by the

state authorities extending time for compliance to June

30, 1976, amounts to a modification of the Pennsylvania

plan and in such case to stay the hand of the federal

government there must be an application by the gov-

ernor of Pennsylvania under 42 U.S.C. 1857c—5 and 6.

We have further enlightenment on the problems be-

fore use in the case of Duquesne Light Co. v. Environ-

mental Protection Agency, 481 F. 2d 1 (3d Cir. 1973). In

that case, involving clarification of a previously entered

remand order by the circuit on petition for review timely

filed, the court said:

“Review by federal courts of actions taken by

the Administrator is circumscribed by section

307 (b) (1). It provides that petitions for review

of the Administrator’s actions approving imple-

mentation plans are to be filed in the United States

Court of Appeals for the appropriate Circuit, with-

in thirty days of the date of the Administrator's

approval. Subsection (2) of 307(b) forecloses later

litigation in enforcement proceedings of issues for

Opinion.

which review could have been had under section

307 (b) (1).”

The court further pointed up the so-called Getty

Oil dilemma” which also exists in the instant case, name-

ly that even though a variance has been obtained from

state authorities, the Federal Administrator is never-

theless bound to enforce the original plan at least until

proper application is made by the governor as herein-

before mentioned. The court said:

“A. The Getty Oil Dilemma

At oral argument, the EPA asserted that re-

dress through the state administrative process was

the proper course for Duquesne and St. Joe to pur-

sue. The companies applied for variances permit-

ting deviation from the plan’s requirements. Peti-

tions seeking variances have, according to counsel,

been filed with the appropriate state authority and

are wending their way through the state adminis-

trative process. Presumably, the final state admin-

istrative determination will be subject to judicial

review, pursuant to the Pennsylvania Administra-

tive Agency Law, 71 P.S. 1710.41. Such recourse to

the state procedure for correction of alleged imper-

fections in the Pennsylvania Implementation Plan

is the path advocated by the EPA, but an un-

doubtedly time-consuming course of action. How-

ever, it does appear to serve the bi-level design of

section 110 of the Clean Air Act.”

The court further said:

“Thus Getty found itself in a difficult position. It

was liable to federal sanctions, imposed because

Getty was violating a state regulation adopted by

57a

Opinion.

the Federal Government, but in effect, repudiated

by the state. The present case presents the Court

with the specter of a recurrence of the Getty para-

dox. Here the plan has been adopted by, and is en-

forceable by, the EPA during the time state pro-

ceedings that might alter the plan are underway.

A proper decision of this case requires a resolution

of this predicament. However, such resolution will

be considered in the concluding section of this

opinion.”

The court concluded as follows:

“The Court finds that to expose the companies to

the risk of punishment without affording them full

occasion to express their objections to the state

implementation plan is fundamentally unfair.

Therefore, this court imstructs the EPA that it

must either (a) refrain from imposing any penal-

ties on these companies during the pendency of

their state administrative and judicial actions, so

long as such actions are pursued by the companies

in good faith and with due diligence or (b) afford

the companies a limited legislative hearing.”

As noted, it appears the plaintiff finds itself in the

“Getty Oil Dilemma”. But if so this is to a considerable

extent its own doing in not filing a petition for review

with the circuit at the proper time. The circuit having a

case properly before it could very well direct the admin-

istrator to refrain from enforcement procedures while

the variance application was still pending before the

state authorities but this court certainly would have no

power to enter such a direction to the administrator

when we determine as we do that we have no jurisdic-

tion of this case at all. For this reason, the motions to

58a

Opinion.

dismiss filed by the Federal Administrator must be

granted. N

B. The State Defendants.

Turning to the state defendants, we likewise find

that we are without jurisdiction in this matter. The

state defendants have raised numerous questions with

respect to the jurisdiction of this court over the De-

partment of Environmental Resources of the Common-

wealth of Pennsylvania and likewise over Maurice K.

Goddard who was sued individually and as secretary of

this department to eliminate the argument that the suit

was actually against the State of Pennsylvania and

hence in violation of the Eleventh Amendment. The suit

as stated was originally brought only against the State

Department and the state defendants very properly

raised the question that the suit could not stand under

the Eleventh Amendment. This was so held by the

United States Supreme Court in Employees of the De-

partment of Public Health and Welfare State of Mis-

sourt v. Department of Public Health and Welfare of

Missouri, 411 U.S. 279, 36 L ed 2d 251, 93 S Ct 1614

(1973). It will be noted, however, that Employees in-

volved payment of money out of tie public treasury of

the State of Missouri. The instant case involves no such

payment. Instead this suit for declaratory and injunc-

tive relief only would appear to be properly brought

against Goddard as an individual and as Secretary

under the exposition of principles contained in Edelman

v. Jordan, —— US ——, 39 Led 2d 662 (United States

Supreme Court Slip Opinion 72-1410, March 25, 1974)

in which case it was held that a suit such as this would

lie under the decision in Ex parte Young, 209 U.S. 123,

52 L ed 714, 28 S Ct 441 (1908) even though there might

59a

Opinion.

be some effect upon the state revenues since the state

officials were enjoined from enforcing monetary penal-

ties against the offending party.

However this may be, we hold that we have no ju-

risdiction to order relief against the state officials by

compelling them to promuigate variances as sought by

the plaintiff herein and in refraining from enforcing the

Pennsylvania plan which it is asserted was approved

without proper authority by the Federal Administrator.

Such determinations can only be made on a petition for

review by our court of appeals and since such review

was not sought at the appropriate time, the only other

remedy is to secure a complete variance and resulting

modification of the plan through state proceedings and

application by the governor under 42 U.S.C. 1857c—5

and 6 as heretofore discussed.

It does appear that a variance was sought from the

state authorities and the plaintiff states its position as

follows:

“On September 19, 1973, the Department granted

plaintiff a variance from its sulfur emission stand-

ards until June 30, 1976, rejecting however plain-

tiff’s proposal for the use of a tall stack on Boiler

No. 33 and directing it to install a sulfur emission

control device. The action in the Department was

appealed to the environmental hearing board—

“Despite the Department’s grant of a variance

until June 30, 1976, the Governor of Pennsylvania

to date has not made application under Section

110f—1 of the Clean Air Act, 42 U.S.C. 1857c-—5(f)

for a one-year extension of the mid-1975 compliance

dates of the Pennsylvania Implementation Plan.

Nor to plaintiff's knowledge has any revision of

Opinion.

that plan been submitted for approval of the Ad-

ministrator under section 110a—3 of the Clean Air

Act, 42 U.S.C. 1857c—5 (a) (3).”

Again, we are dealing with discretionary powers of

state officials. Any state policy relying upon dispersion

techniques rather than the emission limitations has

been held to violate the Congressional policy with re-

spect to clean air. See Natural Resources Defense Coun-

sel, Inc. v. Environmental Protection Agency, 489 F. 2d

390 (5th Cir. 1974) in which case it was pointed out

(page 401):

“Section 18570—5 (f) is the device Congress chose

to insure this. Congress aimed to make variances,

postponements or whatever departures from earlier

commitments might be called unusual and difficult

to obtain. That is why Congress required applica-

tions for them to be made by the Governors of the

states thus insuring an initial screening of applica-

tions by high level state officials. And that is why

Congress imposed rigorous substitute conditions on

the granting of variances allowing them only when

the unavcilability of technology made compliance

impossible when continued operation of the source

was essential to national security, public health or

public welfare and when all available alternative

control measures had been taken.”

The administrative authorities both state and fed-

eral should take into consideration these matters in con-

nection with the current national energy crisis which

may indicate wider use of certain types of coal fuels re-

sulting in larger sulfur oxide emissions than heretofore

considered proper with, of course, all possible devices to

prevent further deterioration of the environment. That,

61a

Opinion.

however, is not a matter for this court but for the ad-

ministrative agencies charged with enforcement of

these statutes and also for Congress to- consider.

It would obviously be futile for this court to re-

strain the state authorities from enforcing these stat-

utes in compliance with a plan which Pennsylvania has

submitted and had approved by the federal authorities,

and this court certainly has no means of requiring the

Governor of Pennsylvania to submit an application for

amendment of the plan as heretofore approved since, as

pointed out by the Fifth Circuit, it was intended that

such variations be difficult and be entirely reposed in

the governor’s discretion as to whether action was prop-

er under circumstances existing.

It appears that plaintiff's complaint is not that

state agencies have not granted them a postponement.

Rather, they complain that the state agency should have

granted them a complete variance and permitted a tall

stack to be erected in lieu of emission control devices

which would amount to a wholesale amendment of the

Pennsylvania plan.

If the plaintiff has any complaints about stays of

proceedings or has any other remedies against the Penn-

sylvania authorities, it appears that it has ample means

of securing extensions and so forth if the same are

proper under 35 P.S. 4004 (subsection 4.1) wherein it is

provided:

“An appeal to the hearing board of the depart-

ment’s order shall not act as a supersedeas: pro-

vided however that upon application and for cause

shown the hearing board of the Commonwealth

court may issue such supersedeas. Any person ag-

grieved by an adjudication of the hearing board

may appeal to the Commonwealth court.”

62a

Opinion.

This court has no disposition to interfere with the ad-

ministrative procedures under Pennsylvania law which

appear to be comprehensive and capable of handling any

complaints, constitutional or otherwise, which may be

made by the plaintiffs. Particularly is this so when it ap-

pears we have no jurisdiction as heretofore determined

over the Federal Administrator, and any such orders

against the state authorities would be exercises in futil-

ity.

For the above reasons, we determined that this

court has no jurisdiction of this suit and an appropriate

order will be entered. N

ORDER

AND Now, to wit, June 19, 1974, for reasons set

forth in the foregoing opinion and after consideration

of the briefs and arguments of counsel and the court

being of the opinion that it has no jurisdiction in the

premises,

IT Is ORDERED that this action and the complaint

filed herein be dismissed for lack of jurisdiction.

WILLIAM W. KNox

United States District Judge

ee:

Harold Schmidt, Esq.

919 Oliver Bldg. 15222

Marvin Fein, Esq.

709 Health & Welfare Bldg., Harrisburg 17120

Craig McKay, Esq.

633 U. S. Courthouse 15219

Environmental Strike Force

Kossman Bldg. 15219

63a

Memorandum and Order Denying Motion.

APPENDIX “F”

IN THE

UNITED STATES DISTRICT COURT

For THE WESTERN DISTRICT OF PENNSYLVANIA

WEST PENN POWER COMPANY Civil

v. 0 Action

RUSSELL TRAIN, et al No. 73-1083

J

Memorandum and Order

Denying Motion for Reconsideration of

Order of June 19, 1974

The plaintiff West Penn Power Company has filed

a motion for reconsideration of the court’s order of

June 19, 1974, dismissing plaintiff’s complaint for lack

of jurisdiction. The complaint was dismissed as to all

defendants. However, the motion for reconsideration

apparenty only applies to the defendant Train as Ad-

ministrator of the Environmental Protection Agency.

The court has reviewed the motion and the briefs of

the parties and has concluded that nothing new has

been presented which was not previously considered by

the court in entering its order of June 19, 1974.

In the opinion of the court this case is controlled

by Getty Oil Company v. Ruckleshaus, 467 F. 2d 349 (3d

Cir. 1972) and it would be reprehensible for this court

to attempt to deviate from the holding of the circuit in

that case. The fact that in this case plaintiff has received

from the state authorities a variance until July 1, 1976

which is apparently unsatisfactory to it and which it

is contesting does not appear tc mandate a result dif-

64a

Memorandum and Order Denying Motion.

ferent from that in Getty where a state court order

had restrained the state authorities from enforcement.

The court further agrees with the defendant that

in Duquesne Light Company v. Environmental Protec-

tion Agency, 481 F. 2d 1 (3d Cir. 1973) the court of

appeals clearly held that the Pennsylvania Plan re-

mained in effect except as to those power companies who

filed petitions for review timely under Section 307 (b)

(1) of the Federal Act. It is true that in Duquesne Light

the circuit issued instructions to the Environmental

Protection Agency with respect to those power com-

panies who were seeking a variance under the Penn-

sylvania Plan but as previously stated if any such

instructions are to be issued the same would have to

come from the circuit and not from this court which has

held it has no jurisdiction of the proceedings.

Order.

Order

AND Now, to wit, August 13, 1974, upon considera-

tion of the briefs of the parties and for reasons set

forth in the foregoing memoranda,

Ir 1s ORDERED that the motion of West Penn Power

Company for reconsideration of the court’s order of

June 19, 1974, be and the same hereby is denied.

WILLIAM W. NOx

United States District Judge

cc:

Harold Schmidt, Esq.

919 Oliver Bldg. 15222

Marvin Fein, Esq.

709 Health & Welfare Bldg, Harrisburg 17120

Craig McKay, Esq.

633 U.S. Courthouse 15219

Environmental Strike Force

Kossman Bldg. 15219

Opinion of the Court.

APPENDIX “G”

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 14-2050

WEST PENN POWER COMPANY,

a corporation, Appellant

We

RUSSELL TRAIN, Administrator of the Environmental

Protection Agency of the United States of America, and

DEPARTMENT OF ENVIRONMENTAL RESOURCES

of the Commonwealth of Pennsylvania and MAURICE

K. GODDARD, individually and as Secretary of the

Department of Environmental Resources and DEPART-

MENT OF ENVIRONMENTAL RESOURCES of the

Commonwealth of Pennsylvania

(D. C. Civil No. 73-1083)

67a

Opinion of the Court.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

Argued April 28, 1975

Before VAN DUSEN, ADAMS and GARTH,

Circuit Judges

HAROLD R. SCHMIDT, Esq., LAWRENCE A.

DEMASE, Esq. and EDWIN J. STRASSBURGER,

Esq., ROSE, SCHMIDT AND DIXON,

Pittsburgh, Pa.

and

THOMAS K. HENDERSON, Esq., Greensburg, Pa.,

Attorneys for Appellant

WALLACE H. JOHNSON, Assistant Attorney

General; EDMUND B. CLARK, MARTIN GREEN,

and JOHN E. VARNuM, Attorneys;

U. S. Department of Justice,

Washington, D. C.,

Attorneys for Appellee RUSSELL TRAIN

BARBARA H. BRANDON, Assistant Attorney

General, Commonwealth of Pennsylvania,

Harrisburg, Pa.

Attorney for Appellee Maurice K.

Goddard and Appellee Department of

Environmental Resources of the

Commonwealth of Pennsylvania

Opinion of the Court.

Opinion of the Court

(Filed July 16, 1975)

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 dis-

missed 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 imple-

mentation plan? pursuant to the Clear Air Act, 42

U. S. C. §1857 et seq.

1. The district court opinion and order of June 19,

1974, are docketed as Document #24 in Civil No. 73-1083

(W. D. Pa.). The memorandum and order of August 13,

1974, denying the motion for reconsideration of the

June 19 order was docketed as Document #29 in Civil

No. 73-1083 (W. D. Pa.)

2. 25 Pa. Code Ch. 123 contains the particulate

matter and sulfur compound emission standards relevant

to this action. 25 Pa. Code Chs. 121-141 comprise the

regulations which form Pennsylvania’s implementation

plan. The plan was adopted by the Environmental

Quality Board of the Commonwealth of Pennsylvania

on January 27, 1972, and approved by the Administrator

of the Environmental Protection Agency (EPA) on May

port 37 Fed. Reg. 10889; 42 U. S. C. §1857h-5(a) (1)

and (2).

3. The Clean Air Act was amended by the Air

Quality Act of 1967, 81 Stat. 485, and the Clean Air

Amendments of 1970, Pub. L. 91-604, 84 Stat. 1676. The

1970 amendments to the Clean Air Act required the

EPA to propose primary and secondary air quality

standards. 42 U. S. C. $1857c-4. Within nine months

after the promulgation of each of these standards, every

state was to adopt and submit to the Administrator of

69a

Opinion of the Court.

West Penn did not file a petition for review under

42 U. S. C. § 1857h-5 (b) (1) 4 to challenge the implemen-

tation plan when it was approved, but petitioned the

Pennsylvania Department of Environmental Resources

(DER) for a variance® from the particulate, visible, and

sulfur compound emission standards applicable to

Boiler No. 33 of West Penn’s Mitchell Power Station. On

the EPA “a plan which provides for implementation,

maintenance, and enforcement” of the standards. 42

U. S. C. §1857c-5. In accordance with the statutory

scheme, Pennsylvania held four public hearings on its

proposed plan. The record does not reveal whether West

Penn appeared at any of the hearings, which were held

from December 1-4, 1971. The plan, including the emis-

sion standard which generated this suit, was adopted by

the Pennsylvania Environmental Quality Board on Jan-

uary 27, 1972: the plan provisions relevant to this suit

were approved by the EPA Administrator on May 31,

1972. 37 Fed. Reg. 10889. For a fuller description of the

lazislative scheme, see Duquesne Light Co. v. EPA. 481

F. 2d 1. 3-5 (3d Cir. 1973).

4. 42 U. S. C. § 1857h-5(b) (1) provides in perti-

nent party:

“A petition for review of the Administrator’s action

in approving or promulgating any implementation

plan . . 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, approval, or action, or after

such date if such petition is based solely on grounds

arising after such 30th day.”

In addition to challenging the plan as a whole under the

above statute, West Penn could have sought relief from

the operation of particular requirements of the plan by

seeking a variance pursuant to 35 Purdon’s Pa. Stats.

§ 4004.41 and 42 U. S. C. § 1857c-5(a) (4).

5. See generally 25 Pa. Code Ch. 141. Chapter 141

was adopted January 27, 1972 and approved by FPA on

May 31, 1972.

70a

Opinion of the Court.

September 13; 1973, before DER had acted on its

variance request,6 West Penn received from EPA a

Notice of Violation? 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 tempo-

rary variance until June 30, 1976, from the sulfur emis-

sion standards.8s The variance, however, rejected West

Penn’s proposal that it use a “tall stack” and low sulfur

coal to meet the standards; installation of a “scrubber”

6. The petition for variance, originally filed Sep-

tember 15, 1972, was amended on June 7, 1973. In its

amended petition, West Penn proposed to reduce sulfur

compound emissions by burning low sulfur coal and by

building a “tall stack” to reduce ground-level concen-

tration of the pollutant. West Penn further stated its

intent to “install sulfur-control equipment as soon as

commercially proven, reliable, and environmentally ac-

ceptable equipment is available.” Particulate matter

was to be controlled by use of an electrostatic precipi-

tator and by chemical treatment of the flue gas.

7. The notice of violation was issued pursuant to

42 U.S. C. § 1857c-8(a) (1), which provides:

“Whenever, on the basis of any information

available to him, the Administrator finds that any

person is in violation of any requirement of an ap-

plicable implementation plan, the Administrator

shall notify the person in violation of the plan and

the State in which the plan applies of such finding.

If such violation extends beyond the 30th day after

the date of the Administrator’s notification, the Ad-

ministrator may issue an order requiring such per-

son to comply with the requirements of such plan or

he may bring a civil action in accordance with sub-

section (b) of this section.” /

8. Particulate emission standards were to be met

by November 1, 1973.

9. See note 6 supra.

71a

Opinion of the Court.

device for controlling sulfur compound emissions was

a condition of the variance. This temporary variance

has not been approved by EPA. 10

West Penn first appealed DER's variance order to

the Pennsylvania Environmental Hearing Board!! 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 Pennsyl-

vania’s implementation plan could not be rejected by

thesdefendants and that West Penn was no 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 en-

10. See 42 U. S. C. § 1857c-5(a) (3); Train v.

Natural Resources Defense Council, Inc., 43 U. S. L. W.

4467, 4476-77 (U. S., April. 16, 1975); Getty Oil Co. v.

Ruckelshaus, 467 F. 2d 349, 358 (3d Cir. 1972), cert.

denied, 409 U. S. 1125 (1973).

11. See 35 Purdon’s Pa. Stats. §§ 4004 (4.1), 4013.5,

and 71 Purdon’s Pa. Stats. § 1710.41. The action is

docketed at Environmental Hearing Board No. 73-330.

12. Before filing suit in federal court, West Penn

participated in a series of meetings held by EPA from

October 18 to November 2, 1973. Among the tops under

investigation at this conference was the state of the

art of sulfur emission control.

13. The original complaint named only EPA and

DER as defendants. After a March 7, 1974, hearing on

the motions to dismiss filed by EPA and DER in Jan-

uary 1974, West Penn amended its complaint to add the

Secretary of DER as a defendant.

72a

Opinion of the Court.

forcement of the order to install a scrubber.“ 14 Juris-

diction 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.;1® The Federal Declaratory Judg-

14. In its brief, West Penn avers that the com-

plaint also asked for a decree that the installation of

flue gas desulfurization device [“scrubber”’] on Boiler

No. 33 would not effect compliance with the Pennsyl-

vania implementation plan after the expiration of the

variance period.” Brief for Plaintiff-Appellant at 5. We

agree with defendant Secretary of DER that the com-

plaint cannot be construed as raising such an issue.

15. “§ 1857h-2. 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 per-

form any act or duty under this chapter which is

not discretionary with the Administrator.

“The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an emis-

sion standard or limitation, or such an order, or to

order the Administrator to perform such act or

duty, as the case may be.

Notice

“(b) No action may be commenced —

(2) under subsection (a) (2) of this section

prior to 60 days after the plaintiff has given notice

of such action to the Administrator.”

16. See Part II, infra. Neither the APA nor 42

U. S. C. § 1337, see note 17, infra, was alleged as a juris-

dictional basis in the original complaint.

73a

Opinion of the Court.

ment Act, 28 U. S. C. §§ 2201 and 2202; and 28 U. S. C.

§ 1337.”17 Amended Complaint, {| 6, Civil Action No.

73-1083, Document #20 (W. D. Pa.)

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,'® the district court dis-

missed the amended complaint in its entirety, as to all

defendants. The court first determined that it lacked

jurisdiction over the EPA A@:xinistrator, Train. Relying

on Getty Oil Co. v. Ruckelshaus, 467 F. 2d 349 (3d Cir.

1972), cert. denied, 409 U. S. 1125 (1973), the district

court concluded 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

17. Ҥ 1337. Commerce and anti-trust regulations

“The district courts shall have original juris-

diction of any civil action or proceeding arising

under any Act of Congress regulating commerce or

protecting trade and commerce against restraints

and monopolies.”

The complaint relied on the Clean Air Act, 42 U. S. C.

§ 1857, et seq., as an act of Congress regulating com-

merce within the scope of § 1337.

18. DER and Goddard also argued that the

Eleventh Amendment precluded the court from exercis-

ing personal jurisdiction over them. Other grounds for

dismissal urged by DER and Goddard were: failure to

join indispensable parties; no exhaustion of administra-

tive remedies; failure to state a claim upon which relief

could be granted; and the abstention doctrine.

19. The court considered and rejected the allega-

tion of jurisdiction under 28 U. S. C. 81337 together

with the APA and DJA claims.

74a

Opinion of the Court.

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

20. The district court opinion set forth the notice

provisions applicable to subsection (a) (1), rather than

(a) (2). See note 15 supra. However, 60 days’ notice is

required in either case, so that the mis-citation was im-

material.

As a second reason for rejecting § 1857h-2 jurisdic-

tion, the district court relied on the discretionary nature

of the Administrator’s action “in approving the Penn-

sylvania 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.”

§ 1857h-2 applies only to cases where the Administrator

fails to perform a non-discretionary Act. To the extent

that Train v. Natural Resources Defense Council, 43

U. S. L. W. 4467 (U. S., Apr. 16, 1975), suggests the

Administrator’s discretion is more limited than the

district court inferred from its reading of 42 U. S. C.

§ 1857c-5, this second ground might not, alone, be dis-

positive of the claim under § 1857h-2. The failure to

give notice, however, sufficies to preclude § 1857h-2

jurisdiction. Moreover, West Penn has not appealed this

jurisdictional holding. But see Metropolitan Washington

Coalition for Clean Air v. District of Columbia, 373 F.

Supp. 1089, 1092 (D. D. C. 1974).

21. See note 19 supra.

22. See note 4 supra. 42 U. S. C. § 1857h-5 (b) (2)

provides:

“(2) Action of the Administrator with re-

spect to which review could have been obtained

under paragraph (1) shall not be subject to judicial

review in civil or criminal proceedings for enforce-

ment.”

75a

Opinion of the Court.

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).

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, God-

dard. The court viewed West Penn’s assertion that DER

lacked power to reject a tall stack” or to direct installa-

tion 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 ap-

proval, which the court could not compel. 24 This lack of

23. This holding was not appealed.

24. See discussion at 6-7, supra. The district court

relied on Natural Resources Defense Council, Inc. v. En-

vironmental Protection Agency, 489 F. 2d 390 (5th Cir.

1974), in stating that a valid variance could only be

obtained upon application of the Governor of Pennsyl-

vania for a one-year extension of the compliance date

for the implementation plan. This elaborate procedure

for obtaining a postponement of the compliance date is

contained in 42 U. S. C. S 1857c-5(f). Since the district

court authored its opinion, the Supreme Court has

reversed the Fifth Circuit decision, supra, and held, in

Train v. NRDC, 43 U. S. L. W. 4467, 4471 (U. S., Apr. 16,

1975), that a variance can be obtained pursuant to

§ 1857c-5(a)(3), rather than § 1857c-5(f). Under

§ 1857c-5(a) (3), a variance becomes effective merely

upon approval by the EPA Administrator. Further, the

Administrator is to grant the variance “if he determines

76a

Opinion of the Court.

jurisdiction over the EPA Administrator, Train, ren-

dered 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. 5 4004(4.1) )

offered West Penn ample relief, without any need for

federal intervention.

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

that it meets the requirements of [§ 1857c-5(a) (2),

which sets forth criteria for an acceptable implementa-

tion plan] and has been adopted by the State after rea-

sonable notice and public hearings.” The Supreme

Court’s holding in NRDC, however, does not invalidate

the district court’s finding that West Penn had not ob-

tained an effective variance, since the EPA had not ap-

proved the temporary variance under § 1857c-5(a) (3).

See 43 U. S. L. W. at 4476-78 and n. 28. Nor, we believe,

does the district court’s reliance on the Fifth Circuit de-

cision in NRDC undercut its conclusion that it lacked

authority to compel the grant of a variance to West

Penn. A mandamus action, though not proper under

§ 1857c-5(f) because of the great discretion which the

district court identified as implicit in that section, might

be proper under § 1857c-5(a) (3). However, no factual

or legal argument made by West Penn in this action

would support issuance of a mandamus. Therefore, West

Penn was not prejudiced by the district court’s view that

issuance and approval of a variance was discretionary.

25. For example, the complaint seeks declaratory

and injunctive relief as to two issues: (1) whether West

Penn is presently in violation of the plan’s emission

standards, and (2) whether a tall stack would comply

with the plan. See note 14, supra. In arguing that the

7a

Opinion of the Court.

we will treat the appeal as raising the following three

questions:

(1) whether the district court properly con-

cluded that § 1857h-5(b) (1) and (2) required dis-

missal of the complaint as to both Train and God-

dard;

(2) whether the district court has jurisdic-

tion under the APA26 of matters raised in the com-

plaint; and

district court erred in holding that § 1857h-5(b) (2)

required dismissal of the complaint, West Penn urges

only that the first issue could not have been raised in a

subsection (b) (1) proceeding. Brief for Plaintiff-Appel-

lant at 13-17. It thus appears to concede that the district

court properly dismissed the complaint as to the second

issue. Such a concession would also amount to an admis-

sion that Goddard was properly dismissed as a defend-

ant, since the only cause of action the complaint al-

leged against Goddard was that he lacked authority to

reject a tall stack and order installation of a scrubber

as a means of achieving compliance with the plan.

Similarly, West Penn’s argument that the district court

has jurisdiction under the APA postulates power to

decide only the first issue raised in the complaint. Brief

for Plaintiff-Appellant at 18-23. At the same time, how-

ever, the summary of the argument describes the brief

as arguing “at length” that subsection (b) (2) did not

bar “jurisdiction to consider West Penn’s claims against

the remaining defendants.” Brief for Plaintiff-Appellant

at 10, n. 3. It is true that arguments in support of in-

consistent alternative claims are permitted under the

Federal Rules of Civil Procedure. In this case, however,

the arguments are not alternative, but serial, and the

inconsistencies in the arguments briefed merely produce

unnecessary confusion into a case not otherwise com-

plex.

26. West Penn does not argue on this appeal that

jurisdiction lies under § 1337. But see Dunlop v. Bachow-

ski, 43 U. S. L. W. 4669, 4671 (June 2, 1975). It also con-

78a

Opinion of the Court.

(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. 8. C. § 1857h-5(b) (1) and (2)

West Penn claims that EPA could not cite the util-

ity 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 prose-

cution for violation of the particulate and sulfur com-

pound emission standards. This argument relies on 25

Pa. Code § 141.5, which provides:

“(a) <A petition which complies with the re-

quirements of § 141.11 of this Title (relating to fil-

ing), and which is received by the Department

within six months of the effective date of this Chap-

ter, shall operate prospectively as an automatic stay

of prosecution for violations of those provisions of

this 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 previ-

ously 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

cedes that the DJA is not jurisdictional in nature, but

“defines the form of relief available to an aggrieved

party under the Administrative Procedure Act.” Brief

for Plaintiff-Appellant at 11, n. 4.

79a

Opinion of the Court.

law or in equity, to enforce such orders, permits,

stipulations, or agreements.”

West Penn avers that this stay was in effect on Sep-

tember 13, 1973, and will remain so at least through

June 30, 1975.27 Brief for Plaintiff-Appellant at p. 10,

n. 3.

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, 1976.28 This contention that West Penn

is not in violation of the plan thus poses no challenge

to “the Administrator’s action in approving or promul-

gating 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

27. West Penn does not reveal how it arrived at

the June 30, 1975, date. Even if the stay operated for a

year after the filing of the petition, rather than a year

from the effective date of 25 Pa. Code Ch. 141, the stay

would expire no later than June 7, 1974. Since, however,

the effective date of Chapter 141 would be May 31, 1972

—the date on which the plan was approved by EPA—the

stay would have expired May 31, 1973. This case does

not, therefore, raise any conflict between the state plan

and the federal Administrator’s action. Train v. NRDC,

43 U. S. L. W. 4467 (U. S., Apr. 16, 1975), does not have

the relevancy assigned it by West Penn's counsel at

oral argument.

28. We note that this argument is not legally sus-

tainable. A variance is not effective until it is approved

by the EPA Administrator. 42 U. S. C. § 1857-5 (a) (3).

Such approval is lacking in this case. See note 10, supra.

Moreover, even if the argument were valid, West Penn

would be subject to citation for violating the particulate

emission standards at any time after November 1, 1973.

See note 8.

80a

Opinion of the Court.

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.29 See, generally, Note: Review-

ability 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 till proper.

II. Jurisdiction under the Administrative

Procedure Act and the Declaratory Judgment Act

The district court relied on this court’s decision in

Getty Oil Co. v. Ruckelshaus, 467 F. 2d 349 (3d Cir.

1972), cert. denied, 409 U. S. 1125 (1973), for the pro-

position that neither the DJA, 28 U. S. C. 52201 and

2202, nor the APA, 5 U. S. C. 5701 et seq., could “afford

29. This case is thus different from Getty Oil Co.

v. Ruckelshaus, 467 F. 2d 349 (3d Cir. 1972), cert.

denied, 409 U. S. 1125 (1973), where the plaintiff chal-

lenged the Delaware plan regulations themselves. Id. at

355. See Part II, infra.

8la

Opinion of the Court.

a basis for jurisdiction.” 467 F. 2d at 356. See also PBH

Stock Exchange, Inc. v. SEC, 485 F. 2d 718 (3d Cir.

1973) ; Zimmerman v. United States, 422 F. 2d 326 (3d

Cir.), cert. denied, 399 U. S. 911 (1970). The plaintiff

in Getty had filed suit in the Delaware district court,

attacking certain regulations which had been approved

by the EPA Administrator as part of that state’s im-

plementation plan under the Clean Air Act. The district

court determined that jurisdiction was properly invoked

under 28 U. S. C. § 1337, the DJA, and the APA. On

appeal, this court rejected the jurisdictional claim, find-

ing that neither the DJA nor the APA extended federal

court jurisdiction “‘to cases not otherwise within their

competence.” 467 F. 2d at 356.

West Penn asserts that the district court’s holding

and, presumably, Getty are inconsistent with the

Supreme Court’s opinion in Abbott Laboratories v.

Gardner, 387 U. S. 136 (1967). Abbott Laboratories,

appellant contends, clearly mandates district court

jurisdiction under the APA to review the administrative

action contested by West Penn’s complaint. The above

cited cases (for example, Zimmerman, supra) show that

the APA does not constitute a jurisdictional grant®°

30. Getty took Abbott Laboratories into account in

deciding that the APA did not empower the district

court to hear Getty’s complaint. Since West Penn does

not appear to have advanced any arguments that would

not have been considered by the Getty court, we would,

under normal principles of stare decisis, be reluctant to

disregard a decision of our court which is closely analog-

ous to the case before us. This reluctance is reinforced

by the Supreme Court’s favorable citation of Getty in

Train v. NRDC, 43 U.S. L. W. 4467, 4476-77 (U. S., Apr.

16, 1975). We recognize, however, that some commenta-

tors have taken a more expansive view of the review-

82a

Opinion of the Court.

and hence we must affirm the district court’s dismissal

in this case. However, assuming, arguendo, that it did

constitute such a jurisdictional grant, we would still be

required to affirm such dismissal.

The APA provides, in certain instances, for judicial

review of agency action. 5 U. S. C. §701(b) (1) defines

“agency” as “each authority of the Government of the

United States.. The APA does not extend to state

agencies. Thus, it could not afford the district court

jurisdiction of West Penn’s suit against Goddard, who

is the Secretary of a Pennsylvania agency.

As to Train, the complaint set forth two requests

for relief. First, it asked that the court render a

declaratory judgment that West Penn was not violating

the plan as a means of preventing Train from citing the

utility for acting contrary to the plan. Second, it asked

an injunction against enforcement of any notice of

violation. According to 42 U. S. C. §1857c-8(a) (1), the

“Administrator shall notify” any “person in violation of

the plan... .” Issuance of a violation notice is thus non-

discretionary. However, the decision to enforce a viola-

tion notice is discretionary under 42 U. S. C. §1857c-

8(b).51 The APA does not provide for review of any

ability of administrative action under the APA than

this court did in Getty. See, e.g., G. Vining, Direct Re-

view and the Doctrine of Ripeness in Administrative

Law, 69 Mich. L. Rev. 1443 (1971); L. Jaffe, supra, at

339-63, 372-76.

31. “(b) The Administrator may commence a civil

action for appropriate relief, including a permanent or

temporary injunction, whenever any person—

(1) violates or fails or refuses to comply with

any order issued under subsection (a) of this

section

83a

Opinion of the Court.

act committed to agency discretion by law.” 5 U. S. C.

5701 (a) (2). See Commonwealth of Ky. ex rel. Hun-

cock v. Ruckelshaus, 497 F. 2d 1172, 1177 (6th Cir.

1974). Thus the APA would not provide jurisdiction for

the district court to issue the requested injunction. Jur-

isdiction to issue the requested declaratory judgment is

similarly wanted under 5 U. S. C. §704, which subjects

to judicial review only [a] gency action made reviewable

by statute and final agency action for which there is

no other adequate remedy in a court. West Penn

cites, and we have found, no statute which makes review-

able Train’s issuance of a notice of violation. Under the

statutory plan, the notice of violation is not final agency

action” since it may be followed by either (1) an

order which “may” be issued 30 days after the notice,

42 U. S. C. §1857c-8(a) (1), but “shall not take effect

until the person to whom it is issued has had an op-

portunity to confer with the Administrator concerning

the alleged violation,” 42 U. S. C. §$1857c-8(a) (4), or (2)

a civil suit under 42 U. S. C. §1857c-8(b), referred to

above. The statutory scheme contemplates that the

violation notice itself has neither an independent coer-

cive effect nor “the force of law.“ Columbia Broadcast-

ing System v. United States, 316 U. S. 407, 418 (1942).

The notice bears no resemblance to the Food and Drug

Administration regulations which were found reviewable

in Abbott Laboratories and Gardner v. Toilet Goods

Association, 387 U. S. 167 (1967). The Court character-

ized the regulations challenged in Abbott and Toilet

Goods as “formal,” “definitive,” “effective upon publica-

tion” and “self-executing.” 387 U. S. at 151, 171. See

also Toilet Goods Association v. Gardner, 387 U. S. 158,

162 (1967). By contrast, the only effect of a notice of

violation is to make the recipient aware that the “defini-

84a

, Opinion of the Court.

tive” regulations are not being met and to trigger the

statutory mechanism for informal accommodation which

precedes any formal enforcement measures. Of course,

the plan’s emission standards themselves are analogous

to the regulations reviewed in Abbott Laboratories, but

those regulations are not challenged on this appeal. See

Part I above.

For the foregoing reasons, we hold that the APA

provides no ground for district court review of the

issues raised in West Penn’s complaint.

Ill. Jurisdiction and the Due Process Clause

West Penn avers that “[i]n dismissing the instant

suit for lack of jurisdiction and denying a hearing on

the merits of all the issues raised in the Amended Com-

plaint, the learned District Court has interpreted the

Clean Air Act and its [sic] decision in Getty Oil in a

manner which deprives West Penn of its due process

right to a hearing guaranteed by the Fifth and Four-

teenth Amendments of the United States Constitution.”

Brief for Plaintiff-Appellant at 23.

West Penn is not claiming that it has been denied

due process by any action of the defendants. It argues,

rather, that it will not receive constitutional due process

elsewhere than in a federal court hearing held prior to

any other proceedings which are available to resolve the

differences between the utility and the defendants. Yet

at least two avenues of relief are open to West Penn,

besides the present suit.

West Penn has taken the initiative in pursuing one

of these alternatives by appealing to the Pennsylvania

DER Environmental Hearing Board. Since the Board’s

85a

Opinion of the Court.

decision is appealable to the Pennsylvania courts, 71

Purdon’s Pa. Stats. § 1710.41, West Penn has taken the

first step to state court settlement of its dispute with

Goddard.32

Consistent with Article VI of the Constitution, pro-

viding, inter alia, that the “Constitution and the Laws

of the United States . . shall be the supreme Law of the

Land; and the Judges in every State shall be bound

thereby . , the Supreme Court of the United States

has operated under the assumption chat the state judges

who have sworn to uphold such Constitution will afford

due process of law to the litigants before them. See

Huffman v. Pursue, 43 U.S.L.W. 4379, 4385 (No. 73-296,

U.S., Mar. 18, 1975); cf. Johnson v. Mississippi, 43

U.S.L.W. 4553, 4555 (No. 73-1531, U.S., May 12, 1975) .3

32. See note 11, supra. West Penn will receive an

adjudicative hearing before the Board. The rules of pro-

cedure at the hearing, set forth in the Pennsylvania

Administrative Agency Law, 71 Purdon’s Pa. Stats.

$$1710.1 et seq., comply with due process requirements

as set forth in Goldberg v. Kelly, 397 U.S. 254 (1970).

West Penn cites this court’s decision in sne

Light Co. v. EPA, 481 F. 2d 1, 9 (3d Cir. 1973), for the

proposition that it would not be accorded due process if

it were relegated to its remedies under Pennsylvania

law. This assertion is rejected. In Duquesne, the parties

had already received a hearing before the Board which

the court determined, from an examination of the

record, was inadequate. The decision in Duquesne in no

way implies that such a hearing is per se inadequate. We

also note that West Penn errs in stating it is in the same

position as the parties in Duquesne. Those parties were

in the Circuit Court by virtue of having brought a

$1857h-5(b) (1) suit. 481 F. 2d at 5. West Penn did not

bring this suit under that section of the Clean Air Act.

33. In Huffman v. Pursue, Ltd., 43 U.S.L.W. 4379,

4383, the Court used this language:

86a

Opinion of the Court.

Also, in view of the strong state interest in maintaining

the public health through abatement of air pollution,

see 42 U.S.C. § 1857c-4(b) (1) and (2), and the broad

discretion delegable to public officials in the application

and enforcement of health laws, cf. Zucht v. King, 260

U.S. 174 (1922), we see no justification for federal

court interference with the state court remedies avail-

able to the parties in this case. Duke v. Texas, 477 F. 2d

244 (5th Cir. 1973), cert. denied, 415 U.S. 978 (1974).

The second route to relief is opened by 42 U.S.C.

1857-8 (a) (4), see Part II above. At the time West

Penn brought this action, it had received only a notice

of violation from Train. After receiving the notice, West

Penn had the opportunity both for informally negotiat-

ing its differences with Trains! and for presenting its

“Even assuming, arguendo, that litigants are en-

titled to a federal forum for the resolution of all

federal issues, that entitlement is most appropri-

ately asserted by a state litigant when he seeks to

relitigate a federal issue adversely determined in

completed state court proceedings. We do not

understand why the federal forum must be avail-

able prior to completion of the state proceedings in

which the federal issue arises, and the considera-

tions canvassed in Younger [v. Harris, 401 U.S. 37

(1971)] militate against such a result.”

(Footnote omitted.)

34. The utility has availed itself of this oppor-

tunity. West Penn and the EPA conferred on several

occasions during the pendency of the suit. After these

conferences, EPA issued an administrative order requir-

ing West Penn to adopt and implement a procedure for

complying with the Pennsylvania emission standards.

EPA gave West Penn the choice of switching to low

sulfur oil or to install a scrubber by December 31, 1978.

The original March 1, 1975, deadline for submission of a

compliance plan was extended to May 1, 1975. Each of

87a

Opinion of the Court.

cause to a federal district court, should EPA take

formal steps to enforce the regulations allegedly vio-

lated by West Penn.25 Thus West Penn has future

relief available to it in both the state and federal courts.

Also, West Penn has not advanced any reason that due

process requires one federal court suit—initiated by

West Penn—but prohibits another federal court suit

that might later be initiated by EPA. It is difficult to

postulate in advance that two federal court proceedings

which are governed by the same rules of procedure

would have different results in terms of due process. See

also Getty, supra, at 357; 42 U.S.C. § 1857h-5(c).

West Penn’s argument thus appears to misappre-

hend the nature of due process. Due process requires,

essentially, only a full and fair hearing before an im-

partial tribunal “at a meaningful time and in a meaning-

ful manner.” Armstrong v. Manzo, 380 U.S. 545, 552

(1965) ; Goldberg v. Kelly, 397 U.S. 254 (1970). A hear-

ing which comports with due process?6 must ordinarily

the final deadlines for reducing West Penn’s emissions

to meet the Pennsylvania standards was similarly ex-

tended for 60 days.

35. In Getty, the court noted that the plaintiff

there would “be foreclosed from raising these objections

in a civil and criminal proceeding for enforcement” be-

cause it had not pursued its exclusive remedy under

§ 1857h-5(b) (1). Since we have determined that West

Penn’s claims could not have been raised in a subsection

(b) (1) proceeding, we conclude that West Penn is free

to argue them in an enforcement proceeding.

36. It is axiomatic that due process is protean, its

actual form at any time being a function of the rights

and interests at stake in a given proceeding. Mitchell v.

W. T. Grant Co., 416 U.S. 600, 610 (1974). Thus we make

no attempt to give a detailed description of a hearing

which provides procedural due process.

88a

Opinion of the Court.

be accorded before a party can be “condemned to suffer

grievous loss,” Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J.,

concurring). See Goldberg, supra; Mattern v. Wein-

berger, No. 74-1776 (3d Cir. 1975). But see Calero-

Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663

(1974) ; Richardson v. Perales, 402 U.S. 389 (1971). The

hearing, however, need not be in federal court. See

Arnett v. Kennedy, 416 U.S. 134 (1974); In-Cho Chung

v. Park, et al., Nos. 74-1875, 74-1876 (3d Cir., Apr. 11,

1975). Thus a party is not deprived of due process who,

having no federal cause of action, is relegated to the

state courts for redress. See, e.g., Murdock v. City of

Memphis, 87 U.S. (20 Wall.) 590, 632 (1875); Huffman

v. Pursue, supra. Nor is a party deprived of due process

merely because it must seek administrative resolution

of its claims before it has access to the courts. Crowell

v. Benson, 285 U.S. 22 (1932); Estep v. United States,

327 U.S. 114 (1946); Barnes v. Chatterton, et al., No.

74-1570 (3d Cir., May 6, 1975); Getty, supra at 356 ff.

See also Jaffe, supra at 381-89.37 Further, since West

Penn has not adduced, and we have not discovered, any

other statutory basis than the APA for district court

jurisdiction of this suit, this due process argument also

37. Were the rule otherwise, no court could re-

quire a party to exhaust administrative remedies before

suing in a judicial forum. Yet the doctrine of exhaustion

is widely accepted. See, e.g., Barnes, supra; Jaffe, supra

at 424 ff.; 3 K. Davis, Administrative Law, $§ 20.01

et seq. (1958 ed. and 1970 Supp.). Also, the Supreme

Court has stated on several occasions that delegation of

the power to entrust enforcement of statutory rights to

an administrative process is not a violation of the con-

stitutional right to a jury trial under the Seventh

Amendment. See Pernell v. Southall Realty, 416 U.S.

363, 383 (1974), and cases there cited.

89a

Opinion of the Court.

appears to misunderstand the power of the federal

courts.

In Sheldon v. Sill, 49 U.S. (8 How.) 440, 448-49

(1850), the Court described the jurisdiction of the fed-

eral courts as being limited, first by the constitutional

definition of federal court powers and, second, by the

congressional distribution of jurisdiction: 38

“Tt has been alleged that this restriction of the

Judiciary Act, with regard to assignees of choses

in action, is in conflict with this provision of the

Constitution, and therefore void.

“It must be admitted, that if the Constitution

had ordained and established the inferior courts,

and distributed to them their respective powers,

they could not be restricted or divested by Congress.

But as it has made no such distribution, one of

two consequences must result,—either that each

inferior court created by Congress must exercise

all the judicial powers not given to the Supreme

Court, or that Congress, having the power to estab-

lish the courts, must define their respective jurisdic-

tions. The first of these inferences has never been

asserted, and could not be defended with any show

of reason, and if not, the latter would seem to follow

as a necessary consequence. And it would seem to

38. The concept of federal courts as exercising

only limited, as opposed to general, jurisdiction was

hardly original with Sheldon. See, e.g., Marbury v.

Madison, 5 U.S. (1 Cranch.) 137 (1803). Just how

limited federal jurisdiction actually is has been the sub-

ject of active debate. See generally, P. Bator, P. Mish-

kin, D. Shapiro, and H. Wechsler, Hart and Wechsler’s

The Federal Court and the Federal System, 314-24;

330-75 (1973).

Opinion of the Court.

follow, also, that, having a right to prescribe, Con-

gress may withhold from any court of its creation

jurisdiction of any of the enumerated controversies.

Courts created by statute can have no jurisdiction

but such as the statute confers. No one of them

can assert a just claim to jurisdiction exclusively

conferred on another, or withheld from all.

“The Constitution has defined the limits of the

judicial power of the United States, but has not

prescribed how much of it shall be exercised by the

Circuit Court; consequently, the statute which does

prescribe the limits of their jurisdiction, cannot be

in conflict with the Constitution, unless it confers

powers not enumerated therein.

“Such has been the doctrine held by this court

since its first establishment. To enumerate all the

cases in which it has been either directly advanced

or tacitly assumed would be tedious and unneces-

sary.”

The holding of Sheldon, reaffirmed countless times,

requires a statutory basis for district court jurisdiction

of West Penn’s action. The mere invocation of due

process” cannot without more furnish such a basis in

this suit.

Finally, even if we did discover a statutory grant

of jurisdiction, the inapplicability of the APA would pose

immunity barriers to this suit against Train, while the

policy against federal court intervention in the state

administrative process would prevent suit against God-

dard. Beale v. Blount, 461 F. 2d 1133, 1138 (5th Cir.

1972). See Huffman, supra at 4383-84; Jaffe, supra at

213-31, 327-29.

91a

Opinion of the Court.

For the foregoing reasons, the June 19, 1974, district

court order will be affirmed. 39 Costs will be taxed against

appellant.

To THE CLERK:

Pleas file the foregoing opinion.

Circuit Judge

We are not precluded from affirming the

dtetrict court’s order, even though we disagree with

that court’s determination that jurisdiction was lacking

because 42 U. S. C. $1857h-5(b)(1) provided West

Penn’s exclusive remedy. Rhoads v. Ford Motor Co., No.

74-1626, slip op. at 5 (3d Cir., Apr. 30, 1975) : Tunnel v.

Wiley, No. 74-1245, at n. 4 (3d Cir., April 1, 1975) ; Lit.

wicki v. Pittsburgh Plate Glass Industries, Inc., 505 F.

2d 189, 192 n. 4 (3d Cir. 1974).

92a

Opinion of the Court.

WEST PENN POWER COMPANY, a corporation, ap-

pellant v. RUSSELL TRAIN, etc., et al. No. 74-2050

ADAMS, Circuit Judge, dissenting.

I respectfully dissent from the majority’s decision

because I believe that a notice by the federal Environ-

mental Protection Agency that a firm is violating a

federally approved air pollution regulation is, under the

specific factual configuration here, judicially reviewable

under the Administrative Procedure Act (APA). !

Pursuant to the Clean Air Act Amendments of

19702 the Administrator of the Environmental Protec-

tion Agency issued a national primary ambient air

quality standard regulating the permissible concentra-

tion of sulfur oxides. Under the Act, each state is

required to develop and submit for approval by the

Administrator an implementation plan designed to

achieve the Administrator’s air quality standards. Once

a state’s plan has been ratified by the EPA, it becomes

enforceable as a federal regulation.

1. 5 U.S. C. 88701 et seq. (1967)

2. Pub. L. 91-604, 84 Stat. 1676.

3. Under 42 U.S.C. $1857c-4, the Administrator is

directed to fix national primary and secondary ambient

air quality standards for air pollutants detracting from

the public health or welfare. See 42 U.S.C. §1857c-3.

Primary ambient air quality standards are those

necessary, in the Administrator’s judgment, to protect

national health. Secondary ambient air quality standards

are those necessary, in the Administrator’s judgment,

ry — the general welfare. See 42 U.S.C. §1857c-

4. 42U.S.C. $1857c-5.

93a

Opinion of the Court.

After the Administrator approved the Pennsylvania

plan, which included a provision intended to achieve

compliance with the Administrator’s limitation on the

proportion of sulfur oxides in the ambient air, West

Penn did not exercise its right to challenge the EPA’s

approval in the federal courts.5 West Penn did, how-

ever, in accordance with the terms of the Pennsylvania

plan, petition the Pennsylvania Department of Envircn-

mental Resources (DER) for a variance from the plan’s

sulfur oxide emission® restriction as it applied to the

company’s Boiler No. 33 at its Mitchell Power Station.

On September 13, 1973, before DER had acted on

West Penn’s request for a variance, West Penn received

from EPA a notice that Boiler No. 33 was in violation of

the federally approved Pennsylvania implementation

plan. Subsequently, on September 19, 1973, DER granted

West Penn a temporary variance from the sulfur oxide

emission restriction, conditioned upon West Penn’s pro-

ceeding with the installation of a flue gas desulfurization

device, referred to as a “scrubber.” The EPA has not

approved this variance from the Pennsylvania plan.7

5. 42 U.S.C. §1857h-5(b) (1) permits a party ag-

grieved by the Administrator’s approval of any imple-

mentation plan to seek review in the court of appeals

for the appropriate circuit within 30 days of the Admin-

istrator’s action.

6. Although West Penn Power sought variances

from several of the plan’s emission limitations, only the

sulfur oxide restriction is relevant to this appeal.

7. A variance from an EPA accepted state imple-

mentation plan must be approved by the EPA before the

polluter is sheltered from federal enforcement of the

emission limitations contained in the implementation

plan. 42 U.S.C. §§1857c-8; 1857c-5(d) ; 1857c-5(a) (3).

For a discussion of the procedure for obtaining EPA

94a

Opinion of the Court.

West Penn, dissatisfied with the state’s conditioning the

variance upon the installation of a scrubber, appealed

the DER’s order to the Pennsylvania Environmental

Hearing Board.®

West Penn then sued“ the Administrator of the

EPA, the DER, and the Secretary of the DER. The com-

pany requested a deciaratory judgment that West Penn

was not in violation of the Pennsylvania implementation

plan and that the defendants had no right to reject West

Penn’s proposal for achieving compliance by use of a

tall stack.‘9 The firm also asked for preliminary and

permanent injunctions barring the Administrator from

proceeding to enforce the September 13, 1973 notice of

violation and preventing DER and its Secretary from

enforcing their order, in response to West Penn’s

variance application, directing the utility to install a

scrubber.

approval of such a variance, see Train v. Natural

Resources Defense Council, 43 U.S.L.W. 4467 (U.S., Apr.

16, 1975). West Penn did not ask the district court to

compel the Administrator to approve the variance, and

we need not therefore decide whether such a remedy

would be available to the company.

8. See 35 Pa. Stat. Ann. 54004 (4.1), 4013.5 and

71 Pa. Stat. Ann. 1710.41.

9. West Penn’s original complaint did not name

the Secretary as a defendant.

10. The primary and secondary ambient air quality

standards issued by the Administrator define maximum

permissible concentrations of sulfur oxides in the

atmosphere. A scrubber is intended to achieve these

standards by removing the pollutants from exhaust

gases before they are discharged. In contrast, tall stacks

are designed to reduce the atmospheric concentrations

by dispersing the compounds over a wider area.

95a

Opinion of the Court.

The district court granted motions to dismiss with

respect to all the defendants. The trial judge concluded

that the action against DER was barred by the Eleventh

Amendment. As to the Secretary, the court held that,

although the Eleventh Amendment did not prohibit the

suit, the district court had no jurisdiction because, in-

sofar as the suit was a challenge to the Pennsylvania

implementation plan, it was barred by 42 U.S.C. § 1857n-

5(b)(2).11 In any event, the trial judge held that he

had no authority to interfere with the exercise of dis-

cretion by the Secretary of DER in issuing variances,

or to compel the state to submit variances for EPA ap-

proval. 12 As detailed more fully in the majority opinion,

the district court, relying in large measure on 42 U.S.C.

§ 1857h-5(b) (2) and Getty Oil, 13 also rejected all the

proffered bases for its jurisdiction to hear the suit

against the Administrator.

11. 42U...C. S 1857h-5 provides, in relevant part:

(b)(1) ...A petition for review of the Adminis-

trator's action in approving ... any implementa-

tion plan under section 1857c-5 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...

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 re-

view in civil or criminal proceedings for enforce-

ment.

12. West Penn did not appeal the dismissal of

DER. The majority affirms the dismissal as to the Secre-

tary.

13. Getty Oil v. Ruckelshaus, 467 F.2d 349 (3d Cir.

1972), cert. denied 409 U.S. 1125 (1973).

Opinion of the Court.

The majority discerns that one of the arguments

pressed by West Penn is that, aside from any variance,

a tall stack strategy is a permissible method of comply-

ing with the implementation plan, and therefore West

Penn is not contravening the plan. The majority states

that this contention does not constitute a justiciable is-

sue between West Penn and the Administrator under

the APA, first, because the issuance of a notice of viola-

tion by the EPA is not final agency action,” and second,

because the Administrator is invested with substantial

discretion in determining whether compliance proce-

dures should be initiated. I disagree. 14

The APA is to be liberally construed in favor of

affording judicial review of administrative actions. In

the words of Justice Harlan in the landmark case of

Abbott Laboratories v. Gardner, the “ ‘generous review

provisions’ [of the APA] must be given a ‘hospitable

interpretation.“ 15 Judicial supervision of agency con-

duct is not precluded “unless there is persuasive rea-

son to believe that such was the purpose of Congress.“ 16

The APA “embodies the basic presumption of judicial

review to one ‘suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency ac-

tion within the meaning of a relevant statute.“ 17 As

this Court recently declared, albeit in the context of a

14. Of course, I express no opinion on the merits

of West Penn’s claim that tall stacks are sufficient, an

issue which was not addressed by the district court and

which the parties have not briefed or argued here.

15. 387 U.S. 136, 140-41 (1967).

16. Id. See Shaughnessy v. Pedreiro, 349 U.S. 48

(1955) ; Rusk v. Cort, 369 U.S. 367 (1962).

17. 387 US. at 140.

97a

Opinion of the Court.

case in which we found an express Congressional pro-

hibition against judicial review of the agency action in

question:

Federal agencies should not be able to retreat be-

hind the concept of no judicial review unless Con-

gress has specifically authorized such a bar. 174

Section 1857h-5(b) (2) Does Not Bar West

Penn’s Suit

As the majority states, this Court’s interpretation

in Getty Oil of 42 U.S.C. § 1857h-5(b) (2) does not im-

pede West Penn’s attempt to have the trial court decide

whether the company has fulfilled its responsibilities

under the Pennsylvania plan. Instead of seeking judicial

review of the EPA’s approbation of the Delaware im-

plementation plan, Getty asKed the state for a variance

delaying the effective date of the plan’s restriction on

the sulfur content of fuels burned in a particular region

of the state. The state administrative agencies denied

the variance, but the state courts temporarily restrained

Delaware from enforcing the restriction. While the state

was so restrained, however, the EPA demanded com-

pliance. Getty asked thi» Court to set aside EPA’s order

on the grounds that primary air quality standards had

already been reached and that compliance, prior to the

development of alternative technology, would impose

an unreasonable economic burden. The panel held that

we could not in the procedural posture of that case en-

tertain economic or technological objections to the plan.

Getty interpreted section 1857h-5 (b) (2) to fore-

close later judicial inquiry with respect to issues which

17a. Pollard v. Romney, 512 F.2d 295, 298 (3d

Cir. 1975).

98a

Opinion of the Court.

could have been raised before a court of appeals in a

suit challenging federal approval of a state implementa-

tion plan within 30 days after such approval. West

Penn’s contention that it has acted in conformity with

the plan, however, unlike Getty’s argument, does not

take exception to the validity of the plan. At least with

respect to this issue, West Penn in essence concedes the

legitimacy of the Pennsylvania plan and asserts that

the company has obeyed it. This issue could not have

been raised in a suit contesting EPA’s approval of the

plan. Thus section 1857h-(b) (2) does not furnish “clear

and convincing evidence,” or indeed any evidence, that

Congress intended to prevent judicial review of the ques-

tion whether West Penn may comply with the Pennsyl-

vania plan by constructing a tall stack.

The September 13, 1973 Notice of Violation

Issued by EPA Represents Final Agency Action.

In order to assess whether the notice of violation

constitutes “final” agency action “committed by law to

agency discretion” within the meaning of the APA18—

a characterization of the EPA’s role made by the major-

ity in sustaining the district court—it is necessary to

outline the statutory enforcement procedures under the

18. 5 U.S. C. § 701(a) provides in pertinent part:

This chapter applies, according to the provi-

sions thereof, except to the extent that—

(1) statutes preclude judicial review.

(2) agency action is committed to agency

discretion by law.

5 U.S.C. § 704 provides in part:

[Final agency action for which there is

no other adequate remedy in a court

is] subject to judicial review.

99a

Opinion of the Court.

Clean Air Act. Whenever the EPA learns that any per-

son is in violation of a federally-sanctioned implementa-

tion plan, the Administrator “shall notify the person

in violation of the plan and the State in which the plan

applies of such finding.“ 19 If the failure to conform to

the plan continues beyond 30 days from the date of the

notice of violation, the Administrator may commence a

civil enforcement action in the district court or “may

issue an order requiring such person to comply” with

the plan.2° Any such order “shall not take effect until

the person to whom it is issued has had an opportunity

to confer with the Administrator concerning the alleged

violation.2! Whether or not any enforcement suit has

been filed or any compliance order issued, however,

[a]ny person who knowingly violates any require-

ment of an applicable implementation plan . more

than 30 days after having been notified by the Ad-

ministrator . shall be punished by a fine of not

more than $25,000 per day of violation, or by im-

prisonment for not more than one year, or both.”22

The penalities for failure to obey a compliance order

are the same as those for failure to abate pollution

within 30 days of a notice of violation. 23 If a conviction

under this section is not the offender’s first, the penalties

are doubled.?4

19. 42 U.S.C. § 1857c-8 (a) (1).

20. Id.

21. 42 U.S. C. § 1857c-8(a) (4).

22. 42 U.S. C. § 1857c-8(c) (1).

23. Id.

24. Id.

100a

Opinion of the Court.

Determination of the “finality” of agency action

under the APA must be viewed pragmatically. In Frozen

Food Express v. United States, for example, the ICC

had issued an order stating that specified goods did not

qualify for the “agricultural commodities” exemption

from the statutory requirement that motor carriers

possess a permit or certificate. The Supreme Court ruled

that this was a final order. Although the decree under

attack did not directly command the plaintiff carrier

to do or not to do any particular act, the Court con-

sidered the order final and justiciable because it had

“an immediate and practical impact” on motor carriers

and shippers:

The determination made by the Commission is not

therefore abstract, theoretical, or academic. .. The

“order” of the Commission which classifies com-

modities as exempt or nonexempt is, indeed, the

basis for carriers in ordering and arranging their

affairs... Carriers who are without the appropriate

certificate or permit, because they believe they carry

exempt commodities, run civil and criminal risks.25

As I have previously observed, the triad of Supreme

Court decisions in Frozen Foods, Storer Broadcasting2®

and CBS*7 has an overarching importance which

reaches beyond the

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