Petitioners Brief — Harrison v. PPG Industries, Inc.

—

Upre re

FILED |

. '

} NOV 23 y |

No. 78-1918 919

R., CLERK

In The Suprenve Court of the United States

OCTOBER TERM, 1979

ADLENE HARRISON, REGIONAL ADMINISTRATOR,

AND DOUGLAS COSTLE, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY, PETITIONERS

Vv.

PPG INDUSTRIES, INC.

ON WRIT OF GERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS

WADE H. McCCREE, JR.

Solicitor General

JAMES W. MOORMAN

MICHELE B. CORASH Assistant Attorney General

General Counsel

WILLIAM ALSUP

Topp M. JOSEPH Assistant to the

Deputy Associate Solicitor General

General Counsel

JACQUES B. GELIN

EARL SALO MICHAEL P. CARLTON

Attorney MARYANN WALSH

Environmental Attorneys

Protection Agency Department of Justice

Washington, D.C. 20460 ‘ Washington, D.C. 20580

— ee aumseeentenannnemmnnmenmennenenindianssintiaeiunimneinmtiemeeineeaietememniaeniail

INDEX

Page

CS iw ia Via Gud on ax we ebled a l

Ei aS Wig iiss i's Sin Gh abla CV ie 0 40's hac 1

I I 5s id's cg bred pin 4 68 view ea 2

Statute and regulations involved .............. 2

COLNE Pn A Oe ea 3

PY GE BIWUMONE.... ... 0 .cccccewecscses 8

ee ic wn Lay bus ww daie pov C8 bit 10

I. The plain meaning of “final action” in-

cludes EPA’s determination in this case 12

II. The legislative history demonstrates

that Congress intended to expand juris-

diction under Section 307(b) to include

EPA’s determination in this case ...... 16

III. The court of appeals incorrectly con-

cluded that channeling review through

the district court would advance preen-

forcement review .................00: 23

ee Lan as cng ws W a.4' bo 60s 5 95 elk oe 27

Te rd cc OR ic ieee se ne 6 oak ee eo la

CITATIONS

Cases:

Abbott Laboratories v. Celebrezze, 352 F.2d

NINES he soho oa vs $39 Kb 9 be be as 14

Abbott Laboratories v. Gardner, 387 U.S.

EEN MLO 5 iss 4c do Unis vatAa wd ei Ce 9, 14, 25, 26

Adamo Wrecking Co. v. United States, 434

EE Ti aogier diy oa vib as boyd Kaveh bo 10, 25

Arnold Tours, Inc. v. Camp, 400 U.S. 45.. 14

Camp Vv. Pitts, 411 U.S. 188......:....... 10, 24

Citizens to Preserve Overton Park v. Volpe,

NM oie sho sca En Kk o'e'k dba Gx 24, 26

Data Processing Service v. Camp, 397 U.S.

Each Paks Se x od mmaidd o04 wd ses obs . (14

* ili

ii

Statutes and regulations: Page

Cases (continued) Page Administrative Procedure Act 5 U.S.C. 551

et seq.:

Denver & R.G.W.R.R. v. Brotherhood of eh eee. Nuts. IB

Railroad Trainmen, 387 U.S. 556....... 1] Te Sag RSENS aa Ratti canal gre 12

FPC v. Transcontinental Gas Pipe Line Re EE eCopt ry eee 12

Corp., 423 U.S. 826........... ee cceee ee 24 RE hci bcsae cacst ee ieee 12

First Federal Savings & Loan Ass'n of the 5GAt Ge... es 12

Bahamas, Ltd. v. SEC, 358 F.2d 358.... 18 SS SO Es —;.

Frozen Food Express v. United States, 351 Oia, I iskcs ccc 9, 10, 14, 26

SM ete oh cis shee ve hee hoes 14 Oe eee ce re tee 24

Gardner v. Toilet Goods Ass’n, 387 U.S. Clean Air Act, 42 U.S.C. 1857 et seq.:

PERI UNAM ogo Rice <4 ew wo aeeh one 25 Section 307(b), 42 U.S.C.

Hallowell v. Commons, 239 U.S. 506...... 11 Sr er 7, 16, 19, 22, 25 i

ITT v. Local 134, IBEW, 419 U.S. 428 .... 12, 14 Section 307(b)(1), 42 U.S.C. :

Medical Committee for Human Rights v. 1067i-GMD oo. os dees 7, 11, 20, 21, 24

SEC, 432 F.2d 659, vacated on other Clean Air Act, as amended 42 U.S.C.

grounds, 406. U.8; 408. ....... cc ccc cccs 14 (Supp. I) 7401, et seq.:

Lloyd A. Fry Roofing Co. v. EPA, 415 F. Section 111, 42 U.S.C. (Supp. D 7411.. 3

Sup. 799, affirmed, 554 F.2d 885 ........ 26 Section 111(a)(2), 42 U.S.C. (Supp. D

National Automatic Laundry and Cleaning eee ct 4

Council v. Shultz, 443 F.2d 689......... 14 Section 111(b)(1)(A), 42 U.S.C.

New York Stock Exchange v. Bloom, 562 (Supp. I) 7411(b)(1(A) .........-0.. 4

F.2d Me TRG MR Ae pasate Rhine Kee es 27 Section 111(b)(1)(B), 42 U.S.C.

Phillips v. SEC, 388 F.2d 964 ............ 13 (Supp. I) 7411(b)(1)(B) ............. 4

Port of Boston Marine Terminal Ass’n v. Section 111(e), 42 U.S.C. (Supp. I)

Rederiaktiebolaget Transatlantic, 400 WON soa vncdceeudeenie eee 15

Mee MEd Rot ak x. isaac 12 Section 111(j), 42 U.S.C. (Supp. I)

Red Lion Broadcasting Co. v. FCC, 395 | | ey Cpe rp ot EU. 15, 23, 24

MN 651s Es hed ds See sae ac ee 13, 14 Section 112(c), 42 U.S.C. (Supp. I

Toilet Goods Ass’n v. Gardner, 387 U.S. TE |. oo chine 15, 22, 23, 24

MU a vires vere sos edo, 14, 25, 27 Section 113, 42 U.S.C. (Supp. I) 7413.. 14, 22

United States v. Allegheny-Ludlum Steel Section 113(d), 42 U.S.C. (Supp. I

OR MR TD, TRE os ke ete wenn sys 14 TID. oc. eee aa 23

United States v. Florida East Coast Ry., Section 119, 42 U.S.C. (Supp. I) 7419. . 22, 23

410 MR aos viGL RES dno u kd coca. 14 Section 119(c)(2)(A), 42 U.S.C. (Supp.

Weinberger v. Hynson, Westcott & Dun- Bp FRR) oo ks oe eke ce ‘ 23

cre, ee 12

iv V

Statutes and Regulations (continued) Page Statutes and Regulations (continued) Page

Section 119(¢)(2)(B), 42'U.S.C. (Supp. I) ee Es cb ok dba ie cde pends 5

We go as Pe 23 ee em OF eee a ee 3

Section 119(c)(2)(C), 42 U.S.C. (Supp. I) Oe Ce es iio eV breeds 4

Pa Ce eT ay: 23 er ce ke EK a ha oe ccadah hea bs la

Section 307(b), 42 U.S.C. (Supp. I) be fF | ere 4

WN lc eck wae 2,12, 15, 21, 25 Oe ie ED ko heise cidess arson 4

Section 307(b)(1), 42 U.S.C. (Supp. I) ae a ae oe a eS ous eas pe ges whe att 2a

EEE ote ch eee passim. ee caw nc co nueks cae ewe is 4

Section 307(b)(2), 4? U.2.C. (Supp. I) 40 C.F .R. Daa yuan Gad COE EX cae ke 4, 30

IE A Sena bite 25, NE kb sb b snecn ev asoa's vce o ols 4, 30

Section 307(e), 42 U.S.C. (Supp. I) ee IE 6 vas hw bbe enced pred ew eee 4

PN eb eek Nec esaek ooub eae YT; 22

Clean Air Act Amendments of 1977, Pub. L. Miscellaneous:

Pam Dey Oe OE FOU occa seekaaeaccas 2 Comment, Declaratory Orders—Uncertain

Clean Air Act Technical and Conforming

Tools to Remove Uncertainty? 20 Ad. L.

Amendments, Pub. L. No. 95-190, 91 ee, Ss ds 5 da waa bck ewan cat 13

Ree sah is ven veicec es 22 123 Cong. Rec. H5150 (daily ed. May 26,

5 ty Seep nace neni 9 ca bee: oon te cee ee eit ws 22

Clean Water Act, 33 U.S.C. 1311 et seg. ... 17, 18 123 Cong. Rec. $9478 (daily ed. June 10,

Section 509, 33 U.S.C. 1869 .......... 18 UNS SEN aera ce Ne eA oh le pads 21

ae ag epee re nee 17 123 Cong. Ree. 59490 (daily ed. June 10,

Oe a - OGRE os «TSUN oar Series yer eee 22

Si es, ee 7 123 Cong. Rec. H8507 (daily ed. Aug. 3,

WORE Ss - RAGE eae halite act aee 22

42 U.S.C. (1964 ed. Supp. V) 1857-1857(e). 16 123 Cong. Rec. H8534 (daily ed. Aug. 3,

OP ee ee ee 17 see ea RE Ne Tet yd 22

Tet fe 8 Serre ee 18 123 Cong. Rec. H8535 (daily ed. Aug. 3,

1 C.F.R. 305.76-4(d)(8) ........ cece eee. 17 1) eee 22

1 C.F.R. 305.76-4(d)(3)(5) .. 0... cee eee 18 123 Cong. Rec. H8556 (daily ed. Aug. 3,

BC Poi ovo vee bn de oeneenn 4 i RO ere SE rE ere eee ere 22

MOTE MNO 65-5505 5 bias von adacaes 13 123 Cong. Rec. 518372-S18373 (daily ed.

ee fe ee nn ie 5 Nov. 1, 1977)... . 0. cece cece eee eee eens 23

MOC TR PRI os ois ci dacudiwceden. 5 123 Cong. Rec. H11956-H11957 (daily ed.

SOE ED hs 8 Knvseeecs cae 5 NOV. 1, IOTT) occ ecsesecsctveesevecsens 23

it | Teeny enone ie 13 K. Davis, Administrative Law Treatise §7:3

40 C.F.R. 60.5 ....... 3, 5, 6, 8, 18, 15, 16, 27, la ek SN erens eee pe er ce te 13

vl

Miscellaneous (continued) Page

K. Davis, Administrative Law Treatise

OCW IS Givin icy nc ecccnneaans 14

36 Fed. Reg. 5981 (1971) ................. 4

36 Fed. Reg. 15704 (1971) ................ 4

OO Fed. Mew, O66 (IGT) oc ccc cscces 4

41 Fed. Reg. 56767 (1976) ................ 17

41 Fed. Reg. 56768 (1976) ................ 18

H.R. Conf. Rep. No. 91-1783, 91st Cong.,

RN IP as sn be wines cee A seskkene. 16

H.R. Rep. No. 94-1175, 94th Cong., 2d

Rn I ct oe tee he 16, 17

H.R. Rep. No. 95-294, 95th Cong., Ist Sess.

i: SERRE Sn IP UERAT 1A 9, 19, 20, 21, 28, 26

Note, Administrative Declaratory Orders,

13 Stan. L. Rev. 307 (1961) ............. 13

Note, Jurisdiction to Review Federal Ad-

ministrative Action: District Court or

Court of Appeals, 88 Harv. L. Rev. 980

GHNEN Fekars Ks ta cee hee ast ey puuie. a 14

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

acing, MET eee EPR CEO ee ata 4 Tee nee 16, 25

Senate Committee on Environment and

Public Works, 95th Cong., 2d Sess., A

Legislative History of the Clean Water

MGA TOre Ce ooh cos hrs. 18

Verkuil, Judicial Review of Informal

Rulemaking, 60 Va. L. Rev. 185 (1974) .. 14

1

In The Supreme Court of the United States

OCTOBER TERM, 1979

No. 78-1918

ADLENE HARRISON, REGIONAL ADMINISTRATOR,

AND DOUGLAS COSTLE, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY, PETITIONERS

v.

PPG INDUSTRIES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-21a)

is reported at 587 F.2d 237. The final decision of the

Administrator (A. 97-98, 104-106) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 22a)

was entered on January 8, 1979. A timely petition for

rehearing was denied on February 26, 1979. On May 23,

1979, Mr. Justice Powell extended the time within

which to file a petition for a writ of certiorari to‘and

including June 26, 1979. The petition was filed on June

2

25, 1979, and was granted on October 1, 1979 (A.108).

The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether the court of appeals has original jurisdiction

under Section 307(b)(1) of the Clean Air Act, 42 U.S.C.

(Supp. I) 7607(b)(1), to review a final action by the Ad-

ministrator applying new-source performance standards

to certain power generating facilities.

STATUTE AND REGULATIONS INVOLVED

1. Section 307(b) of the Clean Air Act, as amended by

the Clean Air Act Amendments of 1977, Pub. L. No.

95-95, 91 Stat. 776, and by Pub. L. No. 95-190, 91 Stat.

1404, 42 U.S.C. (Supp. D 7607(b), provides:

(1) A petition for review of action of the Ad-

ministrator in promulgating any national primary

or secondary ambient air quality standard, any

emission standard or requirement under section

112, any standard of performance or requirement

under section 111, any standard under section 202

(other than a standard required to be prescribed

under section 202(b)(1)), any determination under

section 202(b)(5), any control or prohibition under

section 211, any standard under section 231, any

rule issued under section 113, 119, or under section

120, or any other nationally applicable regulations

promulgated, or final action taken, by the Adminis-

trator under this Act may be filed only in the

United States Court of Appeals fot the District of

Columbia. A petition for review of the Adminis-

trator’s action in approving or promulgating any

3

of enactment of the Clean Air Act Amendments of

1977) or under regulations thereunder, or any

other final action of the Administrator under this

Act (including any denial or disapproval by the

Administrator under title I) which is locally or re-

gionally applicable may be filed only in the United

States Court of Appeals for the appropriate circuit.

Notwithstanding the preceding sentence a petition

for review of any action referred to in such sen-

tence may be filed only in the United States Court

of Appeals for the District of Columbia if such ac-

tion is based on a determination of nationwide

scope or effect and if in taking such action the Ad-

ministrator finds and publishes that such action is

based on such a determination. Any petition for re-

view under this subsection shall be filed within

sixty days from the date notice of such promulga-

tion, approval, or action appears in the Federal

Register, except that if such petition is based

solely on grounds arising after such sixtieth day,

then any petition for review under this subsection

shall be filed within sixty days after such grounds

arise.

(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.

2. Pertinent passages of the following provisions are

reproduced in the Appendix, infra:

(a) 40 C.F.R. 60.5; and

(b) 40 C.F.R. 60.40 through 60.43.

implementation plan under section 110 or section STATEMENT

111(d), any order under section 111(j), under sec- ,

tion 112(c), under section 113(d), under section 119, 1. Section 111 of the Clean Air Act requires the Ad-

or under section 120, or his action under section ministrator of EPA to publish a list of categories of sta-

119(c)(2)(A), (B), or (C) (as in effect before the date tionary sources which eause or contribute significantly

Ee a TS ee a

4

to air pollution. 42 U.S.C. (Supp. I) 7411(b)(1)(A). The

Administrator is then directed to promulgate regula-

tions establishing standards of performance for new

sources within the list of categories. 42 U.S.C. (Supp.

I) 7411(b)(1)(B). The Act defines “new source” as “any

stationary source, the construction or modification of

which is commenced after the publication of regulations

(or, if earlier, proposed regulations) prescribing a

standard of performance under this section which will

be applicable to such source.” 42 U.S.C. (Supp. I)

7411(a)(2).

On March 31, 1971, the Administrator published an

initial list of stationary sources, which included “fossil

fuel-fired steam generators.” 36 Fed. Reg. 5931. Pro-

posed regulations for this category were published on

August 17, 1971 (36 Fed. Reg. 15704), and became ef-

fective on December 23, 1971 (36 Fed. Reg. 24876).

These regulations set emission limits for three pollut-

ants including sulfur dioxide. See 40 C.F.R. 60.1-60.15

and 60.40-60.46.

The regulations define a “fossil-fuel-fired steam

generating unit” as “a furnace or boiler used in the

process of burning fossil fuel for the purpose of pro-

ducing steam by heat transfer.” 40 C.F.R. 60.41(a).

Regulated facilities are units having a heat-input rate of

at least 250 million BTU per hour. 40 C.F.R. 60.40(a).

For such furnaces or boilers, the regulations establish

Separate standards for particulate’ matter, 40 C.F.R.

60.42, for sulfur dioxide, 40 C.F.R. 60.43, and for ni-

trogen oxides, 40 C.F.R. 60.44. The regulations apply

only to stationary sources for which construction or a

modification was commenced after the proposal of the

applicable standard (August 17, 1971). 40 C.F.R.

60.40(c). The regulations specifically provide that upon

request by an owner or operator of a facility the Ad-

ministrator will determine whether action taken or

planned constitutes or will constitute construction,

5

modification or the commencement of construction or

modification. 40 C.F.R. 60.5.!

2. Respondent, PPG Industries, Inc., a chemical

manufacturing corporation, constructed a power facility

at its plant in Lake Charles, Louisiana (A. 8). The

power facility was designed to utilize a coordinated sys-

tem of two gas turbine generators, combined with two

so-called “waste-heat” boilers (A. 65-66, 68). Each gen-

erator-boiler unit operates the same way. The gas tur-

bine generator burns fossil fuel to create hot gases that

turn the turbine to produce electricity. The “waste

heat” exhausted from this process is funnelled into a

waste-heat boiler to aid in the combustion of additional

fossil fuel. This process produces high-temperature,

high-pressure steam which turns a turbogenerator to

create more electricity. This electricity and the low-

pressure, spent steam are then used in PPG’s chemical

manufacturing process (A. 18-19, 51-52, 68).

In February 1975, Conoco Oil Company, PPG’s fuel

supplier, advised EPA that Conoco was switching from

supplying natural gas to supplying fossil fuel (fuel oil)

for PPG’s fossil-fuel-fired steam generators in Lake

Charles (A. 8). Because such a switch might have been

a “modification” of the facility within the terms of 40

C.F.R. 60.14, EPA requested more information from

PPG (A. 8-9, 11, 25-26). In May and June 1976, PPG

submitted information concerning the boilers used at its

plant and stated that the new power facility utilizing

waste heat boilers had been designed and ordered in

1970, prior to the applicable date of the New-Source

Performance Standard (NSPS) regulations (A. 12-24,

27-48). EPA nevertheless concluded that the waste-

heat steam generators were subject to the provisions of

the NSPS regulations (A. 49-50, 59-60). In December

1The terms “construction,” “modification,” and “commenced”

are specifically defined ‘by the regulations. 40 C.F.R. 60.2(g),

(h), (i).

6

1976, EPA advised PPG that because the construction

of the two steam generators had commenced after the

publication of the proposed regulations for fossil-fuel-

fired steam generators, the fact that some of the

equipment was ordered before this date was irrelevant

(A. 59).

In April 1977, PPG submitted a formal request to

EPA for a determination under 40 C.F.R. 60.5 that

construction of the two waste-heat boilers commenced

prior to the effective date of the regulations (so that the

boilers were not “new source[s]”), or, in the alternative,

for a determination that the NSPS regulations were in-

applicable altogether to waste-heat boilers (A. 65-80,

82-94). PPG’s submission included a memorandum of

facts (A. 68-71) and a memorandum of law (A. 72-80).

By letter of June 8, 1977, however, EPA advised PPG

that the two waste-heat boilers were new sources sub-

ject to the regulations (A. 97-98).?

*EPA’s letter of June 8, 1977, stated that performance tests

would be conducted while the boilers were using 100% fuel oil.

This prompted a request for clarification by the company on

July 18, 1977 (A. 99-101). PPG expressed its understanding that

the emissions standards for fossil-fuel-fired boilers would apply

only during the performance tests and other times when the

system was operating with 100% fossil fuel. However, since the

planned mode of operation for the boilers depended on partial

use of fossil fuel together with the turbine exhaust gas as a heat

source, the emissions standards would ‘not apply during the

routine operation of the system.

A letter from EPA’s Division of Stationary Source Enforce-

ment on August 3, 1977, confirmed this interpretation (A. 102).

That interpretation was contrary to EPA’s previous determina-

tion in the June 8, 1977, letter and in similar cases (A. 104). On

August 8, 1977, an EPA representative telephoned an official of

PPG to notify it that the August 3d letter was incorrect (A.

103). This advice was then confirmed by EPA in its letter of

August 18, 1977, in which EPA reaffirmed that the new-source

performance standards applied to the waste-heat boilers and re-

quired PPG to install opacity monitors and to perform alterna-

tive monitoring tests (A. 104-106).

3. On October 4, 1977, PPG filed a petition in the

court of appeals for judicial review of EPA’s determina-

tion that the standards applied to the waste-heat boilers

(A. 2-3). The following month, PPG also filed a com-

plaint against the Administrator in the United States

District Court for the Western District of Louisiana,

seeking an injunction invalidating the agency’s action.

PPG Industries v. Costle, No. 77-1271 (W.D. La.).8

PPG then challenged the jurisdiction of the court of ap-

peals, contending that its original jurisdiction extended

only to review of those actions of the Administrator

specifically enumerated in Section 307(b)(1) (see pages

2-3, supra). EPA argued that the jurisdiction of the

court of appeals was not limited to review of the actions

specifically enumerated in Section 307(b)(1) but ex-

pressly included review of “any other final action” of

the agency and included the determination in this case.

The court of appeals held that “any other final action”

in Section 307(b)(1) did not include EPA’s determina-

tion that the PPG facility was subject to the NSPS reg-

ulations, for three reasons.* First, the court noted (Pet.

App. lla) that prior to the 1977 amendment of Section

307(b), “the district courts and not the courts of appeals

had jurisdiction [under 28 U.S.C. 1331] to review de-

terminations of [such] local applications * * *.”5 Al-

though the 1977 amendment added the phrase “any

other final action” to the statutory list of items to be

reviewed by the courts of appeals, the court thought

3Continental Oil Company, intervenors in the petition for re-

view, joined PPG as plaintiffs in the district court action. The

jurisdiction of the district court was purportedly invoked under

28 U.S.C. 1331, 1832, and 1337.

*The court of appeals did not reach the merits of whether

PPG’s waste-heat boilers were new sources within the terms of

the regulations. The district court action involving that issue

has been informally stayed pending decision in this case.

5The preamendment language of Section 307(b)(1), 42 U.S.C.

1857h-5(b)(1), is set forth at note 6, infra.

8

that it was “most revealing” that the legislative history

of this amendment made no reference to any “massive

shift of jurisdiction to the courts of-appeals” (Pet. App.

15a). This silence suggested to the court that Congress

did not really mean to shift review of numerous local

determinations by EPA to the court of appeals. Second,

po.nting out that the administrative record here con-

sists mostly of correspondence, the court stated that an

administrative determination based on a skeletal record

should be reviewed by the district court in the first in-

stance so that “[t]he discovery apparatus of district

courts” could permit “fact and record development” (id.

at 17a, 20a). Congress, the court of appeals surmised,

must have inserted “any other final action” into Section

307(b)(1) with the “mechanical limitations of the courts

of appeals in mind” (id. at 21a). Finally, the court noted

that Section 307(b)(1) specifically enumerates certain

determinations for review in the court of appeals before

adding the phrase “and any other final action.” This

enumeration, the court thought, would be redundant if

“any other final action” literally comprehended any

final action (id. at 15a). Therefore, Section 307(b)(1)’s

“any other final action” did not include a determination

under 40 C.F.R. 60.5 that a specific facility is a new-

source subject to NSPS regulations (id. at 20a-21a).

SUMMARY OF ARGUMENT

In the 1977 amendment to Section 307(b)(1), Con-

gress expanded the jurisdiction of the courts of appeals

to include review of all “final action[s]” of EPA under

the Clean Air Act. The problem presented by this case

is whether EPA’s determination that PPG’s boilers are

subject to the new-source regulations is a “final action.”

Three considerations support our conclusion that it is.

First, EPA’s action represents the agency’s final de-

termination, short of an enforcement action, of the issue

whether the new-source regulations apply to PPG’s

9

facility. That the determination is declaratory in form

does not alter its status as a final action. Nor does it

matter that the determination is the product of fact and

law submissions to the agency and the agency’s

follow-up inquiries rather than the product of an

evidentiary hearing. Such administrative declarations

have been regarded as “final agency action” for the

analogous purpose of review under the Administrative

Procedure Act, 5 U.S.C. 704. They also should be re-

garded as “final” for the administrative review provi-

sions of the Clean Air Act. That Congress so used the

phrase in the Clean Air Act is demonstrated by the

specific enumeration in Section 307(b)(1) of certain re-

viewable agency actions that are determined in very

much the same way as the determination in this case.

Second, the legislative history shows that the addi-

tion of the “final action” clauses was intended to permit

review of “essentially locally, statewide, or regionally

applicable rules or orders to be reviewed in the US.

court of appeals for the circuit in which such locality,

State or region is located.” H.R. Rep. No. 95-294, 95th

Cong., lst Sess. 323 (1977). The legislative history at no

point calls for review in the district courts. All refer-

ences are to review of final actions in the courts of ap-

peals.

Third, the purposes of preenforcement review would

be better served by construing Section 307(b)(1) to in-

clude EPA determinations of the type in question. One

purpose of preenforcement review is to resolve

promptly the legal obligations of regulated persons be-

fore they are required to act at their peril. See Abbott

Laboratories v. Gardner, 387 U.S. 136, 148-156 (1967).

Had the court of appeals resolved the legal issue posed

in this case, that purpose would have been served, and

PPG would have obtained a final appellate determina-

tion of its rights and obligations without risking civil or

criminal liability. Another purpose of preenforcement

10

review is to establish promptly the validity or invalidity

of EPA’s regulatory program and its component deci-

sions. Had the Fifth Circuit reviewed EPA’s interpre-

tation of the statute and its regulations in this case,

EPA would have obtained a prompt and final appellate

approval or rejection of its interpretation, at least

within the territory of the Fifth Circuit. See generally

Adamo Wrecking Co. v. United States, 434 U.S. 275,

284 (1978). Significantly, if preenforeement review is

unavailable under Section 307(b)(1) because the action

is not a “final action,” then preenforcement review is

also unavailable under the Administrative Procedure

Act, which permits review only of a “final agency ac-

tion.” 5 U.S.C. 704. Because the basic point of Section

307(b)(1) is to provide preenforcement review, Con-

gress could hardly have intended any result which

would completely frustrate the purposes of preenforce-

ment review.

The court of appeals felt that preenforcement review

of agency action based on a “skeletal record” would be

better served by routing such cases through the district

courts where discovery and additional fact finding could

be used to augment the administrative record. Aside

from the fact that inserting an additional layer of judi-

cial review would frustrate prompt preenforcement re-

view, it is well established that where an administrative

record is too skeletal, the proper course is a remand to

the agency for preparation of a more complete record,

not judicially supervised discovery and fact finding.

Camp v. Pitts, 411 U.S. 138, 141-143 (1973).

ARGUMENT

Prior to the Clean Air Act Amendments of 1977, Sec-

tion 307(b)(1) provided that certain specifically enumer-

ated actions of nationwide consequences were reviewa-

ble only in the District of Columbia Circuit and that

certain local actions were reviewable only in the appro-

11

priate regional circuits.6 The 1977 amendment added to

the list of actions reviewable exclusively in the District

of Columbia Circuit “any other nationally applicable

regulations promulgated, or final action taken” under

the Act (emphasis added). In parallel fashion, the

amendment added to the list of EPA actions reviewable

only in the appropriate regional court of appeals “any

SPrior to the 1977 amendment Section 307(b)(1), 42 U.S.C.

1857h-5(b)(1), provided:

A petition for review of action of the Administrator in

promulgating any national primary or secondary ambient

air quality standard, any emission standard under Section

112, any standard of performance under Section 111, any

standard under section 202 (other than a standard required

to be prescribed under section 202(b)(1) ), any determina-

tion under section 202(b)(5), any control or prohibition

under section 211, or any standard under section 231 may

be filed only in the United States Court of Appeals for the

District of Columbia. A petition for review of the Adminis-

trator’s action in approving or promulgating any im-

plementation plan under section 110 or section 111(d), or

his action under section 119(c)(2)(A), (B), or (C) or under

regulations thereunder, 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.

The 1977 amendments to Section 307(b)(1), enacted on August

7, 1977, were in effect when PPG filed its complaint, but had not

yet been enacted at the time EPA made its final decision re-

garding the PPG facility. The jurisdictional amendments

changed only the applicable procedures for review, and not sub-

stantive law or rights already vested. As such, the amended

Section 307(b)(1) applied to all subsequent review actions, re-

gardless of the date of the pertinent agency decision. See Den-

ver & R.G.W.R.R. v. Brotherhood of Railroad Trainmen, 387

U.S. 556. 563 (1967); Hallowell v. Commons, 239 U.S. 506, 508

(1916).

ee

12

other final action of the Administrator” under the

Clean Air Act “which is locally or regionally applicable”

(emphasis added). Congress, therefore, clearly meant

to confine review of all “final action[s],” in the courts of

appeals.

The plain meaning of “final action,” the legislative

history of Section 307(b), and its purpose all support

our conclusion that EPA’s determination in this case

(that PPG’s boilers are subject to its new-source regula-

tions) is a “final action” within the meaning of Section

307(b)(1).

I. The Plain Meaning Of “Final Action” Includes

EPA’s Determination In This Case

The Clean Air Act does not define the term “final ac-

tion,’’ but the phrase has a traditional meaning.

“[Al]gency action” is defined by the Administrative Pro-

cedure Act to include “the whole or a part of an agency

rule, order * * * or the equivalent * * * thereof * * * .”

5 U.S.C. 551(18).

An “order” means “the whole or a part of a final dis-

position, whether affirmative, negative, injunctive, or

declaratory in form, of an agency in a matter other than

rule making but including licensing.” 5 U.S.C. 551(6)

(emphasis added).” Such a declaratory “order” may be

issued to “terminate a controversy or remove uncer-

tainty.” 5 U.S.C. 554(e); see Weinberger v. Hynson,

Westcott & Dunning, 412 U.S. 609, 625-628 (1978);

Port of Boston Marine Terminal Ass’n v. Rederiak-

tiebolaget Transatlantic, 400 U.S. 62, 70-71 (1970); Red

"ITT v. Local 134, IBEW, 419 U.S. 428 (1975), held that an

NLRB determination under Section 10(k) of the National Labor

Relations Act is not an “order” under 5 U.S.C. 551(6) and

therefore such a proceeding is not an “adjudication” subject to 5

U.S.C. 554. However, a Section 10(k) determination merely as-

sesses whether there is “reasonable cause” to believe the strik-

ing union is entitled to the disputed work. See 419 U.S. at 444-

13

Lion Broadcasting Co. v. FCC, 395 U.S. 367, 372-373

n.3 (1969); First Savings & Loan Ass’n of the

Bahamas, Ltd. v. SEC, 358 F.2d 358, 360 (5th Cir.

1966); Phillips v. SEC, 388 F.2d 964 (2d Cir. 1968); see

generally, Comment, Declaratory Orders—Uncertain

Tools to Remove Uncertainty? 20 Ad. L. Rev. 257

(1968); Note, Administrative Declaratory Orders, 13

Stan. L. Rev. 307 (1961).

The ruling in the present case is the agency’s final

disposition declaring the applicability of its new-source

regulations to PPG’s boiler operations. Short of an en-

forcement action, the agency has rendered its last word

on the matter.§ PPG applied for a formal determination

under 40 C.F.R. 60.5 concerning whether its facility is

' subject to the regulations. After consideration of PPG’s

submissions, including a law memorandum, EPA de-

termined that the facility is subject to the regulations.

PPG’s disagreement with that determination turns only

on an interpretation of the new-source regulations and

their application to facts submitted by PPG. No further

446 & n.16. In the present case, in contrast, EPA’s determination

is not tentative and is its final disposition of the issue presented

by PPG.

A “rule” means “the whole or part of an agency statement of

general or particular applicability and future effect designed to

* * * interpret * * * law or policy * * * .” 5 U.S.C. 551(4). Even

if the ruling in the present case were not an “order,” it is an

agency statement of particular applicability. designed to inter-

pret the agency’s regulations, i.e., an interpretive ruling. It is

thus an “agency action.” See generally K. Davis, Administra-

tive Law Treatise §7:3 (2d ed. 1979).

8 Section 307(b)(1) refers to final action of the Administrator.

The June 8, 1977, letter to PPG was signed by the Regional

Administrator (A.97-98). “Administrator” is defined for pur-

poses of the NSPS regulations as the Administrator “or his au-

thorized representative.” 40 C.F.R. 60.2(b). All requests for de-

terminations on the applicability of the regulations are directed

to the appropriate regional office of EPA. 40 C.F.R. 60.4. A

final decision by the regional officer is, therefore, a “final action

of the Administrator” within the statute.

14

administrative appeals remain and, unless PPG honors

EPA’s ruling, it will be enforced through enforcement

proceedings under Section 113, 42 U.S.C. (Supp. ID

7413. Such an order, even though made without an

evidentiary hearing, is “final agency action.”® Red Lion

Broadcasting Co. v. FCC, supra, 395 U.S. at 372-373

n.3; National Automatic Laundry and Cleaning

Council v. Shultz, 443 F.2d 689, 691-692, 698-699

(D.C. Cir. 1971); Medical Committee for Human

Rights v. SEC, 432 F.2d 659 (D.C. Cir. 1970), vacated

on other grounds, 404 U.S. 403 (1972). See generally K.

Davis, Administrative Law Treatise $4.10 (1970 Supp.);

Verkuil, Judicial Review of Informal Rulemaking, 60

Va. L. Rev. 185, 196-205 (1974); Note, Jurisdiction to

Review Federal Administrative Action: District Court

or Court of Appeals, 88 Harv. L. Rev. 98u, 989-992

(1975). 1°

°The formal adjudicatory hearing provisions of 5 U.S.C. 554

do not apply to EPA’s order inasmuch as Section 554 applies

only to adjudications required by statute to be made “on the

record.” United States v. Allegheny-Ludlum Steel Corp., 406

U.S. 742, 757 (1972); United States v. Florida East Coast Ry.,

410 U.S. 224, 238-246 (1973); ITT v. Local 134, IBEW, 419

U.S. 428, 438-441 (1975).

Nor is finality defeated because the action is interpretive.

In Abbott Laboratories v. Gardner, 387 U.S. 136, 149-152

(1967), the court of appeals held that the rulings at issue were

merely interpretive of the statute. See Abbott Laboratories v.

Celebrezze, 352 F.2d 286, 288-289 (3d Cir. 1965). Without dis-

agreeing with that characterization, this Court held the rulings

were “final agency action” under 5 U.S.C. 704, and could be

challenged under the Administrative Procedure Act. See also

Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 162-163 (1967).

Frozen Food Express v. United States, 351 U.S. 40, 45 (1956),

held that an ICC “order” narrowly interpreting an exemption in

a statute it enforced was “final” and ripe for review at the be-

hest of a carrier adversely affected by the interpretation. Al-

though the Court did not specifically address the issue in Data

Processing Service v. Camp, 397 U.S. 150 (1970), and Arnold

Tours, Inc. v. Camp, 400 U.S. 45 (1970), it necessarily assumed

15

That Congress used “final action” in this sense is evi-

dent from other provisions in Section 307(b)(1). EPA’s

determination in this case is akin to other types of ac-

tions specifically considered “final” under Section

307(b). For example, Section 307(b) makes “orders”

under Section 112(¢c), 42 U.S.C. (Supp. I) 7412(e), re-

viewable only in the courts of appeals. Section 112(c)

prohibits the construction of any new source which will

“in the Administrator’s judgment” emit “hazardous air

pollutants” for which the Administrator has set a

standard unless, among other things, “the Adminis-

trator finds that such source if properly operated will

not cause emissions in violation of such standard * * *,”11

EPA has no formal procedures for making such judg-

ments, and the statute specifies none. Consequently,

such dete: minations are made by written inquiry and a

letter response by the agency. An inquiry to the Ad-

ministrator for his “judgment” whether a facility would

emit hazardous air pollutants and, if so, for his deter-

mination that its proper operation would meet the

in those cases that the Comptroller’s interpretive regulations

challenged in those cases were final agency actions.

't Similarly, Section 307(b) permits review in the court of ap-

peals of “any order under section 111(j).” Section 111(e), 42

U.S.C. (Supp. I) 7411(e), prohibits the operation of new sources

in violation of the new-source standards. Section 111(j), 42

U.S.C. (Supp. I) 7411(j), allows “[aJny person proposing to own

or operate a new source” to “request the Administrator for one

or more waivers” in order to “encourage the use of an innova-

tive technological system or systems of continuous emission re-

duction.” The Administrator may grant the request after a pub-

lic hearing. He may deny it without a hearing. Such “orders”

are reviewable under Section 307(b). Once again, a denial of

such a request is akin to a denial of PPG’s request for a deter-

mination that its facility is not subject to the new source regula-

tions at all. The activity in question has not yet occurred but is

known. It is important to the requesting party to have a final

agency determination and judicial review of the determination

rather than to proceed at its peril.

16 7

specified effluent levels, is very similar to PPG’s re-

quest under 40 C.F.R. 60.5 for a determination

whether its proposed boilers would be covered by the

new-source regulations. In both cases, the new source

is not yet operational but the pertinent facts are known.

In both cases, no formal hearing is held. In both cases,

the applicant has a legitimate need for a final resolution

before it proceeds at its peril.!2

II. The Legislative History Demonstrates That

Congress Intended To Expand Jurisdiction

Under Section 307(b) To Include EPA’s De-

termination In This Case

From the legislative history of the 1977 Amendments

it seems reasonably clear that Congress meant to place

review of all “final agency actions,” as that phrase is

traditionally used, in the courts of appeals. Prior to the

1970 amendment, the Clean Air Act did not provide for

preenforcement review. See 42 U.S.C. (1964 ed. Supp.

V) 1857-1857e. The Clean Air Act Amendments of

1970, however, provided for exclusive preenforcement

review in the courts of appeals of certain enumerated

actions. Certain standards and regulations of a national

character were made reviewable by the District of Co-

lumbia Circuit. Certain actions of regional or local sig-

nificance were made reviewable in the appropriate re-

gional circuit. See generally S. Rep. No. 91-1196, 91st

Cong., 2d Sess. 40-42 (1970); H.R. Conf. Rep. No. 91-

1783, 91st Cong., 2d Sess. 47-48 (1970).

‘Contrary to the suggestion of the court of appeals (Pet.

App. 15a), there is no redundancy in the coexistence of the spe-

cifically enumerated items and our interpretation of “any other

final action.” The use of the word “other” eliminates any redun-

dancy. Moreover, it is a well-established tradition in drafting to

indulge in some redundancy out of an abundance of caution to

make sure that certain specific matters are treated in a certain

way rather than to trust to judicial interpretations of general

statutory guidelines.

17

In 1976, Congress considered—but did not enact—

comprehensive amendments to the Act proposed by the

House Committee on Interstate and Foreign Com-

merce. Those amendments would have added a number

of specifically enumerated “regulations,” “standards,”

“findings,” and “actions” to the national and local lists of

actions reviewable in the courts of appeals under Sec-

tion 307(b). The amendment did not, however, mention

any review of “any other final action.” Cf. H.R. Rep.

No. 94-1175, 94th Cong., 2d Sess. 295, 396-397

(1976).38

13The House Committee bill in 1976 would have amended Sec-

tion 307(b)(1) to read in pertinent part:

A petition for review of action of the Administrator in

promulgating any national primary or secondary ambient

air quality standard, any emission standard under section

112, any standard of performance under section 111 (b),

any finding of the Administrator under section

111(i)(7)(A), any regulation promulgated under section

111(d)(1), 121, 122, 123, 124(c), 125, 126(a), 152(f)(3), 154,

160, 207, or 302(i), any standard under section 202 (other

than a standard required to be prescribed under section

202(b)(1) or required to be prescribed under section

202(a)(3)(A) with respect to vehicles or engines manufac-

tured during or after model year 1983), any determination

under section 202(b)(5) or under section 202(a)(3)(B), any

control or prohibition under section 211, or any standard

under section 231 or under section 235 may be filed only in

the United States Court of Appeals for the District of Co-

lumbia. A petition for review of the Administrator’s action

in approving or promulgating any implementation plan

under section 110 or section 111(d), or his action under sec-

tion 119(c)(2)(A), (B), or (C), or his action under section

121 (other than the promulgation of regulations), or under

regulations thereunder, his action in imposing a fee under

section 122, his action under section 127(b), his action in

approving any plan or making any designation or redesig-

nation under section 160, may be filed only in the United

States Court of Appeals for the appropriate circuit.

H.R. Rep. No. 94-1175, 94th Cong., 2d Sess. 396 (1976) (mate-

rial that would have been inserted by the amendment is

italicized).

18

In December 1976, the Administrative Conference of

the United States (see 5 U.S.C. 571-576) issued rec-

ommendations for amendments to the Clean Water Act,

33 U.S.C. 1311 et seq. and the Clean Air Act. 41 Fed.

Reg. 56767 (1976), 1 C.F.R. 305.76-4. The Conference

observed, among other things, that under the Clean Air

Act “it remains possible in some circumstances to ob-

tain non-statutory review under general federal ques-

tion jurisdictional statutes” because “{n]Jot every action

of the EPA under the Clean Air Act * * * is made re-

viewable in the courts of appeals” and that at least

“[S]ome of the omissions appear to be inconsistent with

the general statutory plan * * *.” 1 C.F.R. 305.76-

4(d)(3), (5).

Perhaps the overriding recommendation was in urg-

ing that

when Congress reconsiders the judicial review

provisions of the principal pollution statutes, it

rationalize, alter and clarify them, guided espe-

cially by the principle that jurisdictional provisions

should draw bright lines to minimize the waste and

expense of litigation over whether a case has been

brought in the right court. [1 C.F.R. 305.76-

4(d).14]

The Conference recommended, among other things, (a) that

judicial review under the Clean Water Act be divided among the

courts of appeals as under the Clean Air Act so that “review of

* * * determinations affecting single states or facilities be had in

the circuit containing the state or facility” (Recommendation A)

(41 Fed. Reg. 56768 (1976)), and (b) that both acts enlarge the

number of specifically enumerated items to be reviewed in the

courts of appeals (Recommendation E). (The Conference did not

mention or consider the possibility of placing review of “all final

action(s]” in the courts of appeals.)

An amendment to Section 509 of the Clean Water Act, 33

U.S.C. 1369, similar to the 1977 amendment to Section

307(b)(1), was proposed in separate legislation but tabled. See

Senate Committee on Environment and Public Works, A Legis-

lative History of the Clean Water Act of 1977, 95th Cong., 2d

Sess. 1012-1029 (1978).

19

It was against this background that a year later the

House Committee on Interstate and Foreign Commerce

again considered amendments to the Act. This time the

committee, in revising Section 307(b), did not attempt

to add more specifically enumerated items to the list of

reviewable actions. Instead, the committee proposed

simply to add all other “final actions” to both the na-

tional and regional review provisions of Section

307(b)(1):45

A petition for review of action of the Adminis-

trator in promulgating any national primary or sec-

ondary ambient air quality standard, any emission

standard under section 112, any standard of per-

formance under section 111, any standard under

section 202 (other than a standard required to be

15 Bracketed material was to be omitted and italicized material

was to be added by the House committee amendment.

The committee proposed to revise the rest of Section 307(b) as

follows:

Notwithstanding the preceding sentence a petition for

review of any action referred to in such sentence may be

filed only in the United States Court of Appeals for the

District of Columbia if such action is based on a determi-

nation of nationwide scope or effect and if in taking such

action the Administrator finds and publishes that such

action is based on such a determination. [Any such peti-

tion 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.] Any petition for review under this subsection

shall be filed within sixty days from the date notice of such

promulgation, approval, or action appears in the Federal

Register, except that if such petition is based solely on

grounds arising after such sixtieth day, then any petition

for review under this subsection shall be filed within sixty

days after such grounds arise. No determination of the

Administrator under section 122 shall be reversed by the

court unless such determination is unsupported by sub-

stantial evidence on the record. ;

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 440-441 (1977).

20

prescribed under section 202(b)(1) ), any determi-

nation under section 202(b)(5), any control or pro-

hibition under section 211, [or] any standard under

section 231, any other nationally applicable regu-

lations promulgated, or final action taken, by the

Administrator under this Act may be filed only in

the United States Court of Appeals for the District

of Columbia. A petition for review of the Adminis-

trator’s action in approving or promulgating any

implementation plan under section 110 or section

111(d), or his action under section 119(c)(2)(A), (B),

or (C) or under regulations thereunder, or any

other final action of the Administrator under this

Act which is locally or regionally applicable may

be filed only in the United States Court of Appeals

for the appropriate circuit.

The committee explained:

Paragraph (1) of [Section 307(b)] makes it clear

that any nationally applicable regulations promul-

gated by the Administrator under the Clean Air

Act could be reviewed only in the U.S. Court of

Appeals for the District of Columbia. These would

include, to mention but a few examples, regulations

to carry out the nonattainment policy referred to in

section 117 of this bill and regulations to effectuate

motor vehicle assembly-line test provisions of sec-

tion 206 of the act or inspection/maintenance re-

quirements under section 208 of this bill.

[The first two sentences provide] for essentially

locally, statewide, or regionally applicable rules or

orders to be reviewed in the U.S. court of appeals

for the circuit in which such locality, State, or re-

gion is located. This provision applies, except as

otherwise provided in paragraph (4), to the Ad-

ministrator’s action in approving or promulgating

an implementation plan for any State.

H.R. Rep. No. 95-294, supra, at 323-324.

21

The committee thus made only one change in the two

sentences establishing subject-matter jurisdiction. That

change was to make “any other final action” not specif-

ically enumerated reviewable in the courts of appeals.

Since it was the only change, the committee obviously

intended, in light of the otherwise parallel 1976 bill and

Administrative Conference report, to enlarge jurisdic-

tion and to enlarge it to all final actions. There is not

the slightest indication that, as the lower court seems

to have believed (Pet. App. 15a), the committee simply

meant to confine review to the enumerated items. To

the contrary, the House Report expressly cited exam-

ples (such as regulations to carry out the nonattainment

policy referred to in Section 117 of the bill) of agency

actions not expressly enumerated in Section 307(b)(1)

which the committee intended to fall under “final ac-

tion” (see page 20, supra). At no time, moreover, did

the committee or the Congress refer to preenforcement

review in the district courts.!® All references were to

preenforcement review in the courts of appeals.

The “final action” phrase appears to have been the

committee’s response to the difficult drafting problem

of making sure that each action deserving of review

under the exhaustive legislation was covered by Section

307(b)(1). From its 1976 drafting, the committee was

aware of the tedious task of augmenting the lists of spe-

‘6 To be sure, the committee observed that it was adopting in

large measure the “venue” recommendation of the Administra-

tive Conference. H.R. Rep. No. 95-294, 95th Cong., 1st Sess.

324 (1977). Necessarily, however, it was also enlarging the

subject-matter jurisdiction of the courts of appeals, for it was

only the augmentation of subject-matter jurisdiction to include

all final actions that necessitated the new assignment of venue

along the national-local dichotomy in the first place. Obviously,

the venue for the specifically enumerated items in the prior law

had already been allocated, and they were not changed by the

committee proposal.

22

cifically reviewable actions. The committee was pre-

sumably familiar with the Administrative Conference’s

observation that at least some EPA actions regarded as

“final agency action” under the APA were being re-

viewed by the district courts under federal-question

jurisdiction (see note 16, supra). That in 1977 the com-

mittee did not attempt again to predict each EPA ac-

tion worthy of judicial review seems to have been a re-

sponse to these factors. Instead, the committee pre-

ferred the comprehensive language of “final action” to

include not only the specifie items but also any other

final determinations. !7

'7The House and Senate approved Section 307(b) as proposed

by the House Committee. 123 Cong. Rec. H5150 (daily ed. May

26, 1977); S9478, $9490 (daily ed. June 10, 1977). Consistent

with the intent to confine review of all final actions to the courts

of appeals, the Conference Committee added Section 807(e),

which provides that “[nJothing in this Act shall be construed to

authorize judicial review of regulations or orders of the Ad-

ministrator under this Act, except as provided in this section.”

123 Cong. Rec. H8507, H8534 (daily ed. Aug. 3, 1977). This

reinforces a congressional intention to place judicial review of

all final agency decisions in the courts of appeals.

The Conference Committee added “any rule issued under sec-

tion 120 (relating to noncompliance penalties)” to the list of spe-

cifically enumerated items in the first sentence and “any order

under section 120” to the list in the second sentence. 123 Cong.

Rec. H8535 (daily ed. Aug. 3, 1977). No explanation was given

for this insertion. See 123 Cong. Rec. H8556 (daily ed. Aug. 3,

1977). The specification was arguably unnecessary to the extent

that it would have been obvious such orders were final actions of

local significance. As a drafting matter, however, it would not

have been unusual to make such specifications out of an abun-

dance of caution (see note 12, supra).

The same is true of the insertion of more specifically enumer-

ated items in the “technical amendments” to the Act made a few

weeks later in the Clean Air Act Technical and Conforming

Amendments, Pub. L. No. 95-190, 91 Stat. 1399, 1404, which

changed Section 307(b) to its present language. This amendment

modified the first sentence to specifically enumerate regulations

under Sections 113 and 119 and the second sentence to specif-

23

The Fifth Circuit’s contrary view of the legislative

history was based on the absence of any mention in the

legislative history of a “massive shift” of jurisdiction to

the court of appeals (Pet. App. 15a). Aside from the

fact that committee reports need not say what is al-

ready obvious, the House Report clearly states that the

amendment “provides for essentially locally, statewide,

or regionally applicable rules or orders to be reviewed

in the U. S. court of appeals for the circuit in which

such locality, State, or region is located.” H.R. Rep.

No. 95-294, 95th Cong., 1st Sess. 323 (1977). By con-

trast, there is no mention of judicial review in the dis-

trict courts. Moreover, although the number of actions

comprehended by “any other final action” is substantial,

it would not seem so “massive” that it ineluctably would

have provoked comment in the legislative history.

III. The Court of Appeals Incorrectly Concluded

That Channeling Review Through the District

Court Would Advance FPreenforcement Re-

view

The mainstay of the court of appeals’ holding was its

view that preenforcement review of EPA’s determina-

tion in this case (and other actions not specifically

enumerated in Section 307(b)(1)). would be better

served by review in the district courts where, if neces-

sary, “skeletal” administrative records could be aug-

ically enumerate regional review of orders under Sections

111(j), 112(¢), 113(d) and 119 and made clear that orders issued

under section 119(c)(2)(A), (B) or (C), as in effect before the

1977 amendments, were to be reviewed in the regional courts of

appeals. The very brief legislative history on these amendments

shows they were added to implement the “conference agreement

providing for review of grant or denial of locally applicable or-

ders in the appropriate circuit court, and review of nationally

applicable regulations in the D.C. Circuit Court.” 123 Cong.

Rec. $18372-18373 (daily’ed. Nov. 1, 1977); 123 Cong. Rec.

H11956-H11957 (daily ed. Nov. 1, 1977).

24

mented by discovery and further fact finding (Pet. App.

17a-20a). This argument is unpersuasive for five rea-

sons.

First, we do not think that the administrative record

in this case is “skeletal.” PPG had ample opportunity to

submit all the information it felt was relevant to the

determination, and EPA requested further facts it con-

cluded were relevant. That information is contained in

the administrative record.

Second, as we have seen (pages 15-16 and note 11,

supra), the administrative record in the present case is

comparable to the administrative record created during

EPA actions under provisions in the Clean Air Act that

are specifically required to be reviewed in the courts of

appeals by the second sentence of Section 307(b)(1),

such as actions under Sections 111(j) and 112(c). It is

therefore hard to conclude that Congress intended to

exclude from Section 307(b)(1) EPA actions based on

similar administrative records.

Third, the court below thought that routing such

cases through the district courts would advance preen-

forcement review by permitting fact development

through discovery. Legal issues, however, may be re-

solved without discovery. Indeed, factual issues are

usually resolved by the agency subject only to judicial

review to determine whether the findings are based on

substantial evidence or are not arbitrary. 5 U.S.C. 706.

More fundamentally, if an administrative record is too

skeletal to permit meaningful judicial review, the court

— whether trial or appellate — must remand to the

agency for further determination, not conduct eviden-

tiary proceedings in court. FPC v. Transcontinental

Gas Pipe Line Corp., 423 U.S. 326, 331 (1976); Camp

v. Pitts, 411 U.S. 138, 141-148 (1978); ef. Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 420

(1971).

Fourth, the basic purpose of Section 307(b)(1) — to

provide preenforcement review — would-be better

25

served by requiring review in the court of appeals of

determinations such as the one at issue. One of the pur-

poses of preenforcement review is to permit prompt re-

view of an agency’s interpretation of the law it enforces

before affected persons act at their peril. See generally

Abbott Laboratories v. Gardner, 387 U.S. 136, 148-156

(1967); Gardner v. Toilet Goods Ass’n, 387 U.S. 167,

170-174 (1967); Toilet Goods Ass’n v. Gardner, 387

U.S. 158, 164-165 (1967). That purpose would have

been served in this case had the court of appeals re-

solved the legal issue that casts a shadow over PPG’s

plans. PPG would have obtained a definitive ruling on

the extent and type of abatement equipment required

by the Act in order to operate the project rather than

having to choose a course of action at the risk of choos-

ing incorrectly. Another purpose of preenforcement re-

view under the Clean Air Act, as the Court observed

concerning Section 307(b) in Adamo Wrecking Co. v.

United States, 484 U.S. 275, 284 (1978), is to assure

that EPA’s actions are promptly and finally reviewed in

order to eliminate undue delay in achieving the goals of

the statute. See generally S. Rep. No. 91-1196, 91st

Cong., 2d Sess. 41 (1970). Congress specifically pre-

cluded judicial review in enforcement actions of any ac-

tion reviewable under Section 307(b)(1). See Section

307(b)(2), 42 U.S.C. (Supp. I) 7607(b)(2). EPA’s re-

viewable actions are thus final unless challenged on

preenforcement review within 60 days.!® The objective

of prompt and final review would have been better

served had the court of appeals resolved the question of

law at issue. A ruling favorable to EPA would have al-

19Section 307(b)(1) provides that a preenforcement review

may be sought within 60 days after publication in the Federal

Register of the nature of the “action” taken. Aside from defin-

ing precisely the time period within which review may be

sought, this provision eliminates any possibility that judicial re-

view would be precluded altogether because the affected person

miscalculates and assumes the administrative action is not a

26

lowed it to apply the same legal principle in other cases

with confidence in its validity at least within the Fifth

Circuit. An adverse ruling would have permitted EPA

to reconsider its legal theory.

Finally, if preenforeement review is unavailable in

the court of appeals because the action is not “final,”

then, contrary to the assumption of the court of appeals

(Pet. App. 1la), preenforcement review is not available

at all—even in the district courts. As here, only “final

agency action” is reviewable under the Administrative

Procedure Act. 5 U.S.C. 704. Such a result would frus-

trate the purposes of preenforcement review. It would

also contravene the established rule that adverse

agency action is presumed to be subject to effective

judicial review. Citizens To Preserve Overton Park v.

Volpe, 401 U.S. 402, 410 (1971); Abbott Laboratories v.

Gardner, supra, 387 U.S. at 141.2°

final agency action. Publication in the Federal Register will put

such persons on notice that the agency regards the action as

final. They may then seek preenforcement review if they have

not already. |

EPA did not publish the PPG determination. The only effect

of this lapse is a tolling of the running of the 60-day limitation on

review. EPA has adopted a policy of publishing in the Federal

Register notice of actions such as the determination made in this.

case. In addition, EPA now has a practice of advising parties

such as PPG that the agency regards its action as final and that

failure to seek timely preenforcement review will preclude any

challenge to the determination in subsequent enforcement ac-

tions.

In this connection, EPA enforcement proceedings at the

agency level are not “final actions” reviewable under Section

307(b)(1). Once agency action has reached the enforcement

stage, preenforcement review is no longer available. See H.R.

Rep. No. 95-294, 95th Cong., Ist Sess. 324 n.12 (1977), citing

Lloyd A. Fry Roofing Co. v. EPA, 415 F. Supp. 799 (W. D. Mo.

1976), later affirmed, 554 F.2d 885 (8th Cir. 1977).

*°Even if preenforcement review were available in the dis-

trict courts, as the court below held (Pet. App. 11a), direct res-

olutions by the courts of appeals eliminate a layer of judicial

27

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be vacated and the case remanded for

consideration of the merits.

WADE H. McCREE, JR.

Solicitor General

MICHELE B. CoRASH

General Counsel

JAMES W. MOORMAN

Assistant Attorney General

WILLIAM ALSUP

Assistant to the

Solicitor General

Topp M. JOSEPH

Deputy Associate

General Counsel

EARL SALO JACQUES B. GELIN

Attorney MICHAEL P. CARLTON

Environmental MARYANN WALSH

Protection Agency Attorneys

NOVEMBER 1979

review and thereby allow more prompt validation or rejection of

EPA’s construction of the Act and its regulations.

It does not follow, however, that the court of appeals must

automatically exercise its jurisdiction to review every final ac-

tion by EPA under the Act challenged in the court of appeals.

As Toilet Goods Ass’n, v. Gardner, 387 U.S. 158, 162-164

(1967), illustrates, “final agency action” may not, in some cir-

cumstances, be ripe for judicial review. Cases may arise under

the Clean Air Act where a formal determination by EPA under

40 C.F.R. 60.5 is final but based on sketchy facts and highly

hypothetical contingencies. See New York Stock Exchange v.

Bloom, 562 F.2d 736, 740-742 (D.C. Cir. 1977). In such a case,

the court of appeals might well dismiss the petition as prema-

ture. Given the concrete facts and live controversy in the pres-

ent case, however, such a dismissal on ripeness grounds (a

course of action not considered below) would not have been

proper.

la

APPENDIX

Excerpts from 40 C.F.R. 60.5-60.43

§60.5 Determination of construction or modification.

(a) When requested to do so by an owner or operator,

the Administrator will make a determination of

whether action taken or intended to be taken by such

owner or operator constitutes construction (including

reconstruction) or modification or the commencement

thereof within the meaning of this part.

(b) The Administrator will respond to any request for

a determination under paragraph (a) of this section

within 30 days of receipt of such request.

ok * * * *

Subpart D—Standards of Performance for Fossil-

Fuel Fired Steam Generators

§60.40 Applicability and designation of affected

facility.

(a) The affected facilities to. which the provisions of

this subpart apply are:

(1) Each fossil-fuel-fired steam generating unit of

more than 73 megawatts heat input rate (250 million

Btu per hour).

(2) Each fossil-fuel and wood-residue-fired steam

generating unit capable of firing fossil fuel at a heat

input rate of more than 73 megawatts (250 million Btu

per hour).

(b) Any change to an existing fossil-fuel-fired steam

generating unit to accommodate the use of combustible

materials, other than fossil fuels as defined in this sub-

part, shall not bring that unit under the applicability of

this subpart.

(c) Except as provided in paragraph (d) of this sec-

tion, any facility under paragraph (a) of this section that

2a

commenced construction or modification after August

17, 1971, is subject to the requirements of this subpart.

(d) The requirements of §§60.44(a)(4), (a)(5), and (b)

and (d), and 60.45(f)(4)(vi) are applicable to lignite-fired

steam generating units that commenced construction or

modification after December 22, 1976.

§60.41 Definitions.

As used in this subpart, all terms not defined herein

shall have the meaning given them in the Act, and in

Subpart A of this part.

(a) “Fossil-fuel fired steam generating unit” means a

furnace or boiler used in the process of burning fossil

fuel for the purpose of producing steam by heat trans-

fer.

(b) “Fossil fuel” means natural gas, petroleum, coal,

and any form of solid, liquid, or gaseous fuel derived

from such materials for the purpose of creating useful

heat.

(c) “Coal refuse” means waste-products of coal min-

ing, cleaning, and coal preparation operations (e.g.

culm, gob, etc.) containing coal, matrix material, clay,

and other organic and inorganic material.

(d) ‘‘Fossil fuel and wood residue-fired steam

generating unit” means a furnace or boiler used in the

process of burning fossil fuel and wood residue for the

purpose of producing steam by heat transfer.

(e) “Wood residue” means bark, sawdust, slabs,

chips, shavings, mill trim, and other wood products de-

rived from wood processing and forest management op-

erations.

(f) “Coal” means all solid fuels classified as anthra-

cite, bituminous, subbituminous, or lignite by the

American Society for Testing Material. Designation D

388-66.

3a

§60.42 Standard for particulate matter.

(a) On and after the date on which the performance

test required to be conducted by § 60.8 is completed, no

owner or operator subject to the provisions of this sub-

part shall cause to be discharged into the atmosphere

from any affected facility any gases which:

(1) Contain particulate matter in excess of 43 nano-

grams per joule heat input (0.10 lb per million Btu) de-

rived from fossil fuel or fossil fuel and wood residue.

(2) Exhibit greater than 20 percent opacity except for

one six-minute period per hour of not more than 27 per-

cent opacity.

§60.43 Standard for sulfur dioxide.

(a) On and after the date on which the performance

test required to be conducted by §60.8 is completed, no

owner or operator subject to the provisions of this sub-

part shall cause to be discharged into the atmosphere

from any affected facility any gases which contain sulfur

dioxide in excess of:

(1) 340 nanograms per joule heat input (0.80 lb per

million Btu) derived from liquid fossil fuel or liquid fos-

sil fuel and wood residue.

(2) 520 nanograms per joule heat input (1.2 lb per

million Btu) derived from solid fossil fuel or solid fossil

fuel and wood residue.

(b) When different fossil fuels are burned simultane-

ously in any combination, the applicable standard (in

ng/J) shall be determined by proration using the fol-

lowing formula:

PS.» =[y(340) +2(520) Vy +2

Where:

PS.« is the prorated standard for sulfur dioxide when

burning different fuels simultaneously, in nanog-

rams per joule heat input derived from all fossil

4a

fuels fired or from all fossil fuels and wood residue

fired.

y is the percentage of total heat input derived from

liquid fossil fuel, and

z is the percentage of total heat input derived from

solid fossil fuel.

(c) Compliance shall be based on the total heat input

from all fossil fuels burned, including gaseous fuels.