Petition for Writ of Certiorari — Getty Oil Co. v. Ruckelshaus

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IN THE MICHAEL RODEX, Jr, CUB

Supreme Court of the United States

October Term, 1972.

No. 72-673

GETTY OIL COMPANY (EASTERN OPERATIONS),

INC., a Delaware Corporation,

Petitioner,

Vv.

WILLIAM D. RUCKELSHAUS, as Administrator of the

Environmental Protection Agency, and the ENVIRON-

MENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Cuar.es F. Ricuarps, JR.,

Davin S. Swayze,

Ricuarps, Layton & Finer,

4072 DuPont Building,

Wilmington, Delaware. 19899

Attorneys for Petitioner

Getty Oil Company

(Eastern Operations), Inc.

International, 711 So. 30th St., Phila., Pa. 19143—Tel. SA 7-8711 Area Code 215

“ af 2 PR RT RNS SE OO el

BAD PLES BE REI EE ENO TS ee |

INDEX

Page

ET oven ccucecdncnceadwvasretcnesevesaeeass 1

PE ocdcvcccccsccnassneseecscoescessccccsecess

ED nc tkcccdsecsncecausesedsssbensans

CONSTITUTIONAL PrRovIsION, STATUTES AND REGULATIONS IN-

ee a aaneeeneddun

cc ce eeeeeesekekeneiee 9

REASONS FOR GRANTING A WRIT ...........ccccececcceees 12

1. This Case Raises Important Questions Under the

Clean Air Act and the National Environmental Policy

Act as Well as the Administrative Procedure Act

Which Should Be Settled by This Court ........... 12

2. The Decision by the Court of Appeals for the Third

Circuit Conflicts With the Decisions of This Court and

With Decisions in Other Circuits in Several Important

TRS CR IRR SERIE CS SPE Sa rary ee 13

EE cts pnckbehnctenee ee bnkennbedieneednn snows 19

APPENDIX :

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seeeneet Comet Geer CS/TRITE) «nn 2 oc ccsvcccccscesees A4

8 ls A5

District Court Opinion (5/10/72) .................... A6

District Court Supplemental Opinion (5/10/72) ........ A37

Court of Appeals Judgment (9/12/72) ................ A38

Court of Appeals Opinion (9/12/72) ...............4.. A39

EPA Order (7/18/72) ........ fete NC PE A54

Letter, EPA to Allied Chemical (7/25/72) ............ A57

TABLE OF CASES CITED.

Page

Abbott Laboratories v. Gardner, 387 U. S. 136, 87 S. Ct.

we 5 ee me FU rere rrr 13

Calvert Cliffs’ Coordinating Committee v. Atomic Energy Com-

mission, 449 F. 2d 1109 (D. C. Cir. 1971) ............ 17,18

Environmental Defense Fund v. Hardin, 325 F. Supp. 1401

Ce ee a. SUPE se awnb cn knbd sk bbesdeaccucseceens 15, 16

Ex parte Young, 209 U. S. 123, 188 S. Ct. 441, 52 L. Ed.

POW COD. Ciksnddce vous sea eneheeannseeensaskeexn 14

Fuentes, et al. v. Shevin, et al., 40 U. S. L. W. 4692 (U. S.

- June 12, 1972), and Parham, et al. v. Cortese, et al., 40

U.S. ©. W. Sie CU. & dome 12 TOPS) i. ccceses, 15

Green County Pianning Board v. Federal Power Commission,

ee og! gt Se errarrrerr rrr er errer 17,18

Kalur v. Resor, 335 F. Supp. 1 (D. D. C. 1971) ........... 17, 18

Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300, 58 S. Ct.

= Fe FS 8) grrr errr rrr 14, 15

National Helium Corp. v. Morton, 455 F. 2d 650 (10th Cir.

PEE Ccevatvtecesbsuc kaa thedankeaercabonsas nun was 17

NRDC v. Morton, 3 E. R. C. 1558 (D. C. Cir. 1972) ...... 17

Oklahoma Operating Co. v. Love, 252 U. S. 331, 64 L. Ed.

Se SEED eee cde sh usin eae sd kee douse suns ewendks 14

SCRAP v. U. S., 4 E. R. C. 1312 (D. D. C. 1972), petition

for certiorari filed, sub nom., Aberdeen R. R. v. SCRAP, 4

E. R. C. 1369 (U. S. July 19, 1972, Nos. A-72 and A-73,

probable cert. noted, memorandum opinion, Burger, C. J.,

BO SEE -vawncuénenesPicrksnkaeecakkecteexseens 16

Sniadach v. Family Finance Corp., 395 U. S. 337, 89 S. Ct.

a eee eer errr re rrr 15

St. Regis Paper Co. v. United States, 368 U. S. 208, 82 S. Ct.

289, 7 L. Ed. 240 (1961), reh. den. 368 U. S. 972, 82

fee eee FL eer ry err re rey rr 15

STATUTES, RULES AND CONSTITUTION CITED.

Page

Administrative Procedure Act:

ens ET sinc acdeuincacdoukeeaceressxats 2

Pe EE Seu GWA Noni occ dunes cuvadabekunnaun 5,14

ee re ere nn eee peaeaneT ae 14

Clean Air Act:

ee es I OE oc ss onndenewccaeeucanmescas 2, 12

Te Bes ee ID bos vin ne antcecdcdveccaenace. 6

Me Wis Oe ee DOD cic oc cues vn veweescnaues 6

Oh; ic ee NEED 5 hp aiccoudccecassdeaecaus 12

RE Ore eer 2, 3, 13

es We ie NE is ovis cxcancunvecccscecces 17

ee a ee 3,9

Oe Te. MPO case ccccncccceccccccses 3,12

Re Wes Oe Gece EES vkins cnccownsnccoccncecees 4,12

Declaratory Judgment Act:

28 U. S. C., Chapter 151, as amended .............. 2

Ee LE oss con okekdecveccukeuceaaces 2

Federal Rules of Appellate Procedure, Rule 41(b) .......... 2, 10

National Environmental Policy Act:

ys I OP dv iccdcaecnanecesnecdvevcdeve 2

eG: Gy IEG wn vin vcs vncicccceccveucenccas 3,7

Se EE Soo ck vincosgevcduianeuckseunecdcns 2

EE Shih dbcinksaneaeweedubodecc ceweeennss 9

a: ED ed i da sindd pemawyack uae bbubeaboks 2

United States Constitution :

I Note oun evi Vie cuecrenuscmeeteunins 6

MER I — |

IN THE

Supreme Court of the United States

Octoser Term, 1972.

No.

GETTY OIL COMPANY (EASTERN OPERATIONS),

INC., a DeLaware CorPorRATION,

Petitioner,

32 See EAT SI So

Ee eeeeeeEEeEeEeEeeEeEeEeeeee

me.

Vv.

WILLIAM D. RUCKELSHAUS, as ApmrnistTRaToR OF THE

ENVIRONMENTAL PROTECTION AGENCY, AND THE EN-

VIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Petitioner prays that a writ of certiorari be issued to

review the judgment herein of the United States Court of

Appeals for the Third Circuit entered in the above-entitled

case on September 12, 1972.

OPINION BELOW.

The opinion of the Court of Appeals (Appendix, p. 39,

hereinafter simply A39) is not yet officially reported. It

has been reported unofficially at 4 E. R. C. 1567. In its

judgment (A38), the Court directed that the cause be re-

manded to the District Court with directions to enter an

order of dismissal for lack of jurisdiction. The opinion

of the District Court is reported at 342 F. Supp. 1006 (D.

Del. 1972) (A6).

2 Petition for Writ of Certiorari

JURISDICTION.

The judgment of the Court of Appeals was entered on

Septem ‘er 12,1972. Petitioner did not move for rehearing.

On October 2, 1972, the Court of Appeals granted a motion

by petitioner to stay the mandate of the Court pursuant to

28 U. S. C. §2101(f) and Rule 41(b), Federal Rules of

Appellate Procedure, pending the disposition of its petition

for a writ of certiorari. The jurisdiction of this Court is

invoked under 28 U.S. C. § 1254(1).

QUESTIONS PRESENTED.

1. Does the District Court have jurisdiction of this

action under the Administrative Procedure Act (‘‘APA’’),

5 U. S. C., Chapter 7; the Declaratory Judgment Act;

28 U.S. C., Chapter 151, as amended; 28 U. S. C. § 1337;

the National Environmental Policy Act (‘‘NEPA’’), 42

U. S. C., Chapter 55; and the Clean Air Act, 42 U.S. C.,

Chapter 15B?

2. Should an injunction issue against the enforcement

of a compliance order purportedly issued under § 113(a) (4)

of the Clean Air Act (42 U. S. C. §1857c-8), where said

order was totally unwarranted by the facts, arbitrary, un-

reasonable and unlawful under the Clean Air Act?

3. Does the Fifth Amendment to the United States

Constitution entitle petitioner to an injunction against the

enforcement of a compliance order purportedly issued by

the Environmental Protection Agency under § 113(a) (4)

of the Clean Air Act (42 U. S. C. § 1857c-8), pending the

holding of a due process hearing, where no special circum-

stances exist which would justify summary adjudication,

where enforcement of the compliance order would result in

Petition for Writ of Certiorari 3

the irrevocable destruction of valuable property rights, and

where failure to comply with said order for the purpose of 1

contesting its validity would give rise to the substantial :

risk of incurring cumulative criminal penalties and/or ;

prison terms?

4. Does the statutory scheme of the Clean Air Act, ;

which vests primary responsibility for the promulgation, i

amendment and enforcement of applicable implementation f

plans in the states, entitle petitioner to a stay of enforce-

i ment of a federal compliance order pending the resolution ;

of its application for a variance from the applicable imple- '

mentation plan which is now pending before the Delaware

Water and Air Resources Commission?

5. May the Environmental Protection Agency enforce

a compliance order purportedly issued under § 113(a) (4)

of the Clean Air Act (42 U.S. C. § 1857c-8) without having

first prepared and circulated an environmental impact

statement with respect to either the approval of the ap-

plicable state implementation plan, the compliance order, or

both as mandated by the National Environmental Policy

Act (42 U. S. C. § 4832(2)(C)), which requires that all

federal agencies issue an ‘‘environmental impact state-

ment’’ with respect to every ‘‘major federal action’’?

CONSTITUTIONAL PROVISION, STATUTES

AND REGULATIONS INVOLVED.

1. The compliance order in question was issued pur-

portedly under 42 U. S. C. § 1857¢-8(a)(1) and (4), which

provide as follows:

‘*(a)(1) Whenever, on the basis of any informa-

tion available to him, the Administrator finds that any

person is in violation of any requirement of an ap-

4 Petition for Writ of Certiorari

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 Administrator

may issue an order requiring such person to comply i

with the requirements of such plan or he may bring a '

civil action in accordance with subsection (b) of this }

section.

**(4) An order issued under this subsection (other

than an order relating to a violation of section 1857¢-7

of this title) shall not take effect until the person to

whom it is issued has had an opportunity to confer

with the Administrator concerning the alleged viola-

tion. A copy of any order issued under this subsection

shall be sent to the State air pollution control agency

of any State in which the violation occurs. Any order

issued under this subsection shall state with reasonable

specificity the nature of the violation, specify a time

for compliance which the Administrator determines is

reasonable, iaking into account the seriousness of the

violation and any good faith efforts to comply with |

applicable requirements. In any case in which an order

under this subsection (or notice to a violator under

paragraph (1)) is issued to a corporation, a copy of

such order (or notice) shall be issued to appropriate

corporate officers.’’

2. Failure to obey the compliance order may give rise ‘

to a substantial fine or imprisonment or both under 42 ‘

U. S. C. § 1857e-8(c)(1) which provides as follows:

**(c)(1) Any person who knowingly—

(A) violates any requirement of an applicable "

implementation plan (i) during any period of Fed-

Petition for Writ of Certiorari 5

erally assumed enforcement, or (ii) more than 30

days after having been notified by the Administra-

tor under subsection (a)(1) of this section that

such person is violating such requirement, or

(B) violates or fails or refuses to comply with

any order issued by the Administrator under sub-

section (a) of this section, or

1857c-7(c) of this title.

shall be punished by a fine of not more than $25,000 per

day of violation, or by imprisonment for not more than

one year, or by both. If the conviction is for a viola-

tion committed after the first conviction of such per-

son under this paragraph, punishment shall be by a

fine of not more than $50,000 per day of violation, or

by imprisonment for not more than two years, or by

both.’’

3. The compliance order here in question is reviewable

under 5 U. S. C. § 704, which provides as follows:

“‘Agency action made reviewable by statute and

final agency action for which there is no other adequate

remedy in a court are subject to judicial review. A

preliminary, procedural, or intermediate agency action

or ruling not directly reviewable is subject to review

on the review of the final agency action. Except as

otherwise expressly required by statute, agency action

otherwise final is final for the purposes of this section

. whether or not there has been presented or determined

t an application for a declaratory order, for any form

of reconsideration, or, unless the agency otherwise

requires by rule and provides that the action mean-

while is inoperative, for an appeal to superior agency

‘ authority.”’

wre. «~«

lr tee

TET IETS, Gye met

6 Petition for Writ of Certiorari

4. The Fifth Amendment to the United States Consti-

tution provides as follows:

‘No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.’’

5. Statutes upon which petitioner relies to show the

primacy of State authority under the Clean Air Act are

42 U.S. C. § 1857¢-2(a), which provides as follows:

**(a) Each State shall have the primary respon-

sibility for assuring air quality within the entire geo-

graphic area comprising such State by submitting an

implementation plan for such State which will specify

the manner in which national primary and secondary

ambient air quality standards will be achieved and

maintained within each air quality control region in

such State.’’

and 1857c-5(a)(1), which provides as follows:

**(a)(1) Each State shall, after reasonable notice and

public hearings, adopt and submit to the Administra-

tor, within nine months after the promulgation of a

national primary ambient air quality standard (or any

revision thereof) under section 1857c-4 of this title for

any air pollutant, a plan which provides for implemen-

tation, maintenance, and enforcement of such primary

Petition for Writ of Certiorari 7

standard in each air quality control region (or portion

thereof) within such State. In addition, such State

shall adopt and submit to the Administrator (either

as a part of a plan submitted under the preceding sen-

tence or separately) within nine months after the

promulgation of a national ambient air quality see-

ondary standard (or revision thereof), a plan which

provides, for implementation, maintenance, and ep.

forcement of such secondary standard in each air

quality control region (or portion thereof) within such :

State. Unless a separate public hearing is provided,

each State shall consider its plan implementing such

secondary standard at the hearing required by the first

sentence of this paragraph.”’

6. The requirement that the respondent shall comply

with the ‘‘environmental impact statement’’ requirements

of the National Environmental Policy Act is set forth at

42 U. S. C. § 4332(2)(C):

**§ 4332. Cooperation of agencies; report; availability

of mformation; recommendations; international

and national coordination of efforts

The Congress authorizes and directs that, to the

fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be inter-

preted and administered in accordance with the policies

set forth in this chapter, and (2) all agencies of the

Federal Government shal]—

oo gene

proposals for legislation and other major Federal ac-

tions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on

8 Petition for Writ of Certiorari

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved

in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the com-

ments of any Federal agency which has jurisdiction

by law or special expertise with respect to any en-

vironmental impact involved. Copies of such state-

ment and the comments and views of the appropriate

Federal, State, and local agencies, which are authorized

to develop and enforce environmental standards, shall

be made available to the President, the Council on

Environmental Quality and to the public as provided

by section 552 of Title 5, and shall accompany the pro-

posal through the existing agency review processes.”’

Petition for Writ of Certiorari 9

STATEMENT OF THE CASE. :

On March 6, 1972, respondent, William G. Ruckelshaus,

Administrator of the Environmental Protection Agency,

issued a formal notice, under 42 U. S. C. § 1857¢-8(a) (1)

(Clean Air Act, § 113(a)(1)) advising Delmarva Power and

Light Company that it was in violation of Regulation XV

(subsequently renumbered as and hereafter referred to as ;

Regulation VIII) of the Delaware State Implementation ;

Plan. That Regulation prohibited the burning of fuel ;

having a sulfur content by weight in excess of 3.5 percent

on and after January 1, 1972. After an informal confer-

ence on March 20, 1972, the Administrator issued an order

on April 17, 1972, requiring Delmarva Power and Light

Company,’ the alleged violator, to comply with the ap-

plicable regulation (A1).

Petitioner promptly instituted a lawsuit in the District

Court for the District of Delaware on Apri! 21, 1972, seek-

ing an injunction against enforcement and a stay of the

effective date of the compliance order. The jurisdiction of

the District Court was invoked because of the questions

arising under the Administrative Procedure Act, the Clean

Air Act, the National Environmental Policy Act, and 28 3

U. S. C. § 1337. At the request of the District Court, the ;

respondent deferred the effective date of its compliance

1. Although Delmarva Power. and Light Company is named as

the alleged violator, it is not the real party in interest. A somewhat

unique contract between Delmarva and petitioner requires, inter alia,

that Deimarva utilize as its sole fuel source the fluid coke which is

the by-product of the refinery at Delaware City owned and operated

by petitioner. In return, Delmarva is obligated to supply the pre-

ponderance of the electricity and steam generated by the burning of the

coke to the refinery. Any increased cost resulting from a legal re-

quirement that Delmarva burn a fuel other than the fluid coke is

borne by petitioner under the contract, and by the public users of

electricity to the comparatively lesser extent that power is furnished

to them. Consequently, petitioner, and not Delmarva, is the “ag-

grieved party”, and therefore the real party in interest.

10 Petition for Writ of Certiorari

order until midnight on May 10, 1972. On May 10, 1972, the

Court rendered its decision denying a temporary restrain-

ing order (A6) and thereafter, on May 12, 1972, similarly

denied on the same record petitioner’s request for a pre-

liminary injunction (A5). Petitioner promptly filed a

notice of appeal with the Third Circuit Court of Appeals,

together with a motion in the District Court for an in-

junction pending appeal. The District Court denied a full

injunction pending appeal, but granted a limited injunction

until petitioner could present its application for an in-

junction pending appeal to the Third Circuit. On May 25,

1972, the Third Circuit Court of Appeals granted peti-

tioner’s motion for an injunction pending appeal by con-

tinuing in full force and effect the injunction theretofore

granted by the District Court in paragraph 2 of its May 12,

1972, order. Following an abbreviated brief schedule, peti-

tioner’s appeal from the decision of the District Court came

on for hearing before the Third Circuit on June 23, 1972.

On September 12, 1972, the Third Circuit entered its judg-

ment and upon motion timely made by petitioner, on Octo-

ber 2, 1972, entered an order staying the issuance of its

mandate pursuant to Rule 41(b) of the Federal Rules of

Appellate Procedure.

The pertinent facts of this case are not in dispute.

Petitioner operates a large crude oil refinery at Delaware

City, Delaware. A natural byproduct of its refining op-

erations is high energy fluid coke, which is manufactured at

a maximum rate of 1,500 tons per day. The coke, which has

a sulfur content of up to between 6 and 7 percent by weight,

is transferred by conveyor to an adjoining power station

operated by the Delmarva Power and Light Company,

where it is burned to produce electricity and steam. All

of the steam not used in generating electricity and most of

the electricity is then returned to the refinery; the re-

mainder is sold by Delmarva to the public. Apart from its

Petition for Writ of Certiorari 11

reser y

use as a valuable fuel source at Delaware City, fluid coke

has practically no market or product application. If the

coke cannot be burned, petitioner would be required to

either stockpile it, dispose of it at sea, or otherwise get

rid of it.

While Regulation VIII would permit the burning of

coke if its emissions could be controlled to the level of emis-

sions from fuel having a sulfur content of less than 3.5% by

weight, no such technology exists. In an effort to develop

such technology, petitioner has devoted thousands of man

hours and over $800,000.00 to a search for such a solution.

While immediate compliance is possible by burning low

sulfur fuel oil, such compliance is unreasonable in the light

of the uncontested facts of record here that (1) the National

Primary Standard is already being met in Delaware and,

hence, the ‘‘violation’’, even if one has occurred, is not

serious and (2) the cost of immediate compliance of more

than $10,000.00 per day during 1972 is ruinously high and

(3) compliance would cause low sulfur fuel oil, already in

scarce supply, to be burned where not needed and would

result in a misallocation of national resources and have

undesired adverse environmental side effects, all contrary

to the dictates of NEPA.

Based on these salient facts, petitioner sought a vari-

ance from Regulation VIII before the Secretary of Natural

Resources and Environmental Control of Delaware. That

variance was denied, not on the merits, but on the ground

that the Secretary lacked the authority to grant the re-

quested variance. The appeal of that decision was argued

on June 26, 1972, and is now pending before the Water and

Air Resources Commission of Delaware (‘““WARC’’),

which initially promulgated Delaware’s Implementation

Plan, and which is vested with the authority to amend it.

The Delaware Court of Chancery granted a temporary re-

straining order to petitioner against enforcement by the

State until the WARC decides the variance appeal.

PE LEN INO TUR LTE TENS PERRET NRO i o

12 Petition for Writ of Certiorari

REASONS FOR GRANTING A WRIT.

1. This Case Raises Important Questions Under the Clean

Air Act and the National Environmental Policy Act as

Well as the Administrative Procedure Act Which

Should Be Settled by This Court.

This case is the first appellate review of enforcement

under the Clean Air Act (42 U. S. C., Chapter 15B). As

such, if allowed to stand, it will have a far reaching effect

on environmental regulation in this country and on appel-

late review thereof. In its landmark decision, the Court

of Appeals decided that the District Court is without juris-

diction to review an enforcement order by the Adminis-

trator of the Environmental Protection Agency under

§ 113(a)(4) of the Act (42 U. S. C. §1857c-8(a)(4)). It

reached this decision despite the facts that petitioner had

not been afforded a due process hearing on the order and

noncompliance with the order carries criminal penalties of

up to $25,000 per day or imprisonment for up to one year or

both. 42 U.S. C. § 1857e-8(c) (1).

Another important question which the Court of Ap-

peals decided was that the provisions of the National En-

vironmental Policy Act calling for a multi-discipline, inter-

departmental study of the environmental effects of major

federal action, may be disregarded if not raised within

thirty days of approval of a State Implementation Plan

in the Court of Appeals. 42 U. S. C. §1857h-5(b)(1).

Further, the Court held that NEPA was not applicable

to the major federal action of enforcement against a major

discharger.

The decision of the Court of Appeals in this case evis-

cerates those provisions of the Clean Air Act which place

the major burden on the states for enforcement and regula-

Petition for Writ of Certiorari 13

tion of dischargers within the states. In this case, the

pendency of state administrative proceedings for a vari-

ance and the existence of a state injunction against en-

forcement were brushed aside, although federal standards

in the form of national primary standards had already

been achieved in Delaware more than three years prior

to the federal deadline for achieving them and the federally

approved Implementation Plan included approval of the

state variance procedure.

The decision by the Court of Appeals will have an im-

mediate and far reaching effect on federal enforcement

efforts in quite another and undesirable way in that the

Court of Appeals has held in effect that the Administrator

has no discretion under §113(a)(4) to fix a reasonable

compliance schedule, but must inflexibly order immediate

compliance. The Court reached this surprising conclu-

sion despite the clear language of the statute which com-

mands that the Administrator shall:

. specify a time for compliance which the Ad-

ministrator determines is reasonable, taking into ac-

count the seriousness of the violation and any good

faith efforts to comply with applicable requirements.’’

The Court of Appeals decision ignored the fact that peti-

tioner was not attacking the regulation, but rather was

challenging the reasonableness of the time for compliance

set by the Administrator based on the lack of seriousness

of the violation and petitioner’s good faith efforts to com-

ply. There is no conceivable way that the compliance

order could have been reviewed prior to its issuance by

challenging the regulation.

The Court’s decision in this case deprives the EPA

of the power to enter into compliance orders such as it did

in a companion case to Getty’s appeal. In its order of

July 18, 1972, with respect to Allied Chemical Corporation

—_— ee

14 Petition for Writ of Certiorart

(A54), the EPA granted Allied more than 14 months from

the date of its order to comply. The Allied variance re-

quest was denied in the first instance by Delaware’s Secre-

tary of Natural Resources and Environmental Control in

the same decision in which he denied Getty’s request. If

the Administrator has no discretion, then he will not be

able to do this in the future and the Allied order is illegal.

If he has discretion, then Getty should be able to review

an abuse of that discretion under the Administrative Pro-

cedure Act, 5 U. S. ©. §§ 704 and 706.

2. The Decision by the Court of Appeals for the Third

Circuit Conflicts With the Decisions of This Court

and With Decisions in Other Circuits in Several Im-

portant Respects,

On the threshold question of jurisdiction, the Court

of Appeals decision herein clearly conflicts with this

Court’s decision in Abbott Laboratories v. Gardner, 387

U. S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). Although

the Court of Appeals paid lip service to Abbott, it failed

to show any legislative intent to preclude review of com-

pliance orders and in its recitation of the complicated pro-

cedural background of this case, it was, of course, unable

to show any other proceeding in which the compliance

order could have been tested. Hearings which were avail-

able on the desirability of the regulation did not afford

petitioner review of the discretionary compliance order or

of the reasonableness of the compliance schedule. Hence,

petitioner is entitled to review pursuant to this Court’s

decision in Abbott under the APA.

The decision of the Court of Appeals also conflicts

with due process decisions of this Court, including recent

decisions. Ex parte Young, 209 U. S. 123, 188 S. Ct. 441,

52 L. Ed. 714 (1908) ; Oklahoma Operating Co. v. Love, 252

U. S. 331, 64 L. Ed. 596 (1920); Natural Gas Pipeline Co.

Petition for Writ of Certiorari 15

v. Slattery, 302 U. S. 300, 58 S. Ct. 199, 82 L. Ed. 276

(1937); St. Regis Paper Co. v. United States, 368 U. S.

208, 82 S. Ct. 289, 7 L. Ed. 2d 240 (1961), reh. den. 368

U. S. 972, 82 S. Ct. 437, 7 L. Ed. 2d 401. Where criminal

penalties attach to an administrative order, a due process

hearing must be afforded a litigant prior to the litigant

becoming liable for those penalties.

There are certain instances, of course, where sum-

mary adjudication may be justified. This Court has held

that the strict guarantee of due process may be relaxed

where the particularized circumstances of a given case

provide some overriding ground for summary compliance

with an administrative order. Sniadach v. Family Finance

Corp., 395 U. S. 337, 89 S. Ct. 820, 23 L. Ed. 2d 349 (1969),

Fuentes, et al. v. Shevin, et al., 40 U. S. L. W. 4692 (U. S.

June 12, 1972), and Parham, et al. v. Cortese, et al., 40

U. S. L. W. 4692 (U. S. June 12, 1972). The undisputed

facts before this Court, however, reflect no particularized

or special circumstances which might sustain the depriva-

tion of a due process hearing; indeed, all evidence of record

reflects precisely the opposite of this conclusion. As both

the Third Circuit Court of Appeals and the District Court

found, a stay of compliance in this case pending the grant

of an evidentiary hearing involves no threat whatsoever

to the public health or safety. Hence, the Court of Ap-

peals decision, which would deny petitioner a due process

hearing and protection against the imposition of criminal

penalties if its challenge fails, conflicts with a long line of

decisions of this Court.

This Court has not yet passed on the National Environ-

mental Policy Act or its interaction with the Clean Air Act.

The lower court’s decision herein, however, conflicts with

decisions interpreting NEPA which have been decided in

other circuits. In Environmental Defense Fund v. Hardin,

‘

SOO MEER TET Oe

16 Petition for Writ of Certiorari

325 F. Supp. 1401 (D. D. C. 1971), the Court concluded

that NEPA provided an independent jurisdictional ground

for review of administrative action and that the require-

ments of NEPA could not be dispensed with because of

the existence of provisions for ‘‘exclusive review’’ by the

Court of Appeals of any order under the Federal Insec-

ticide Act. 7 §135b(d). 325 F Supp. 1401 at 1407. This

is in conflict with the decision here. See also, SCRAP v.

U.S.,4 E. R. C. 1312 (D. D. C. 1972), petition for certiorari

filed, sub nom., Aberdeen R. R. v. SCRAP, 4 HE. R. C.

1369 (U.S. July 19, 1972, Nos. A-72 and A-73, probable cert.

noted, memorandum opinion, Burger, C. J., July 19, 1972)

at 1317:

‘‘Tt is unnecessary for us to decide whether the

Commission has here injected itself sufficiently into

the rate making process to bring this case within the

Moss rule, however, since there is another, more com-

pelling, argument for why this court possesses juris-

diction. In our view, NEPA implicitly confers author-

ity on the federal courts to enjoin any federal action

taken in violation of NEPA’s procedural requirements,

even if jurisdiction to review this action is otherwise

lacking. Thus no one would contend that this or any

court possesses independent jurisdiction to assess the

wisdom of a presidential decision to conduct a nuclear

test. But when such a test was challenged because of

a failure to comply with NEPA, the Court of Appeals

for this circuit nonetheless assumed jurisdiction ‘to

determine whether the agencies involved have fully

and in good faith followed the precedure contemplated

by Congress * * *.? Committee for Nuclear Respon-

sibility, Inc. v. Seaborg, — U. S. App. D. C. —, —

F. 2d — [3 ERC 1126] (No. 71-1732, decided October

5, 1971) (slip opinion at 6).’’

Petition for Writ of Certiorari 17

In NRDC v. Morton, 3 E. R. C. 1558 (1). ©. Cir. 1972),

the Court of Appeals held that NEPA's requirements must

be met both at the policy-making stage and at the imple

mentation stage. See also, Green County fanning Board

v. FPC, 455 F. 2d 412, at 420 (2d Cir. 1972) Applied to

this case, that would mean, as we contended, that the re-

quirements of NEPA raust be met when the Administrator

considers the alternatives open to him in fixing a reasonable

compliance order under 42 U.S. C. § 1857e-8(a).

The record in this case reflects the wisdom of Congress

in imposing this requirement. For in this case, the Admin-

istrator ignored the waste of 1,500 tons per day of high

energy fuel at a time of critical fuel shortage; he ignored

the adverse environmental effects from transporting and

disposing of this massive quantity of coke; he ignored the

adverse environmental effects of requiring up to 7,000 bar-

rels per day of low sulfur fuel oil to be burned in this area

of the country which already meets the national primary

standards, when, as a consequence, such fuels will not be

available to meet more critical needs elsewhere.

The Court of Appeals in this case found that,

‘To require an impact statement at the enforce-

ment stage would do substantial harm to the Congres-

sional purpose of obtaining expeditious compliance

with primary and secondary air standards.’’ (A53)

This conflicts with the policy balance struck by other Courts

of Appeals in favor of NEPA’s requirements which, of

course, had the effect of slowing down other Congressional

programs. See, e.g., NRDC v. Morton, supra; National

Helium Corp. v. Morton, 455 F. 2d 650 (10th Cir. 1971);

Calvert Cliffs’ Coordinating Committee v. Atomic Energy

Commission, 449 F. 2d 1109 (D. C. Cir. 1971). See also,

Kalur v. Resor, 335 F. Supp. 1 (D. D. C. 1971), in which Mr.

nis See

18 Petition for Writ of Certiorari

Ruckelshaus was a named defendant. The Court’s finding

on this also conflicts with the unrebutted evidence in the

record that the National Primary Standards with respect

to sulfur dioxide emissions have already been achieved in

Delaware.

‘*Compliance to the ‘fullest’ possible extent would seem

to demand that environmental issues be considered at

every important stage in the decision-making process

concerning a particular action—at every stage where

an overall balancing of environmental and non environ-

mental factors is appropriate and where alterations

might be made in the proposed action to minimize en-

vironmental cost.’’ Calvert Cliffs’ Coordinating Com-

mittee v. Atomic Energy Commission, 449 F. 2d at 1118

(D. C. Cir. 1971).

So here, where the gut issues surrounding the possi-

bility of an adverse environmental impact come into focus

for the first time when the Administrator proposes to issue

a compliance order, where the Administrator has broad dis-

cretion in establishing a reasonable compliance date on the

basis of the seriousness of the violation and the good faith

efforts of the party to comply, and where the Administrator

failed to prepare an environmental impact statement with

respect to his approval of the Delaware implementation

plan ab initio.

The Court of Appeals seeks to absolve the EPA from

NEPA’s requirements on the grounds of its own self-

serving regulations and those of the Council on Environ-

mental Quality. Of course, this conflicts with the Second

Circuit’s decision in Green County Planning Board v. Fed-

eral Power Commission, 455 F. 2d 412 (2d Cir. 1972), which

found such regulations had no binding effect. 455 F. 2d at

421. See also, Kalur v. Resor, supra.

PRMIE..

Petition for Writ of Certiorari 19

CONCLUSION.

Because of the important questions of federal law

which should be resolved by this Court and the conflict of

the Third Circuit’s opinion in several important respects

with decisions of this Court and of other Circuits, petitioner

respectively requests that its petition for a writ of certiorari

be granted.

Respectfully submitted,

Cuanr.es F. Ricuanrps, Jr.,

Davp 8. Swayze,

Ricuargps, Layton & Firxcer,

4072 DuPont Building,

Wilmington, Delaware. 19899

Attorneys for Petitioner

Getty Oil Company

(Eastern Operations), Inc.

Appendix.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

Wasurxertos, D. C.

Docket No.: 293-113-7201.

IN THE MATTER OF

DELMARVA POWER & LIGHT COMPANY

DELAWARE CITY, DELAWARE

PROCEEDING UNDER § 113(a), CLEAN

AIR ACT, AS AMENDED.

Axp Now, this 17th day of April 1972, the following

Onxper is issued pursuant to Section 113(a)(1) of the Clean

Air Act, as amended, 42 U. S. C. § 1857(c)-8(a)(1) (herein-

after referred to as the ‘‘ Act’’).

Wuenreas, on March 6, 1972, the Administrator found

that Delmarva Power & Light Company (Delmarva) was

in violation of Regulation XV (now renumbered Regulation

VIII) of the Delaware Water & Air Resources Commission

(a requirement of an ‘‘applicable implementation ” as

that term is used in Section 113(a)(1) of the Act), in that

Delmarva was burning, at its Delaware City, Delaware

power station, fuel with a sulfur content in excess of 3.5%

by weight; and

(Al)

ne ———

A2 EPA Order (4/17/72)

Whereas, pursuant to Section 113(a)(4) of the Act,

opportunity to confer with representatives of Environ-

mental Protection Agency was given to Delmarva and on

March 20, 1972, a conference to discuss this violation was

held at the offices of Region III of the Environmental Pro-

tection Agency; and

Wuenreas, this violation has continued beyond the 30th

day after the date of the Administrator’s notification; and

Wuenreas, after review of the conference record and a

thorough investigation of all relevant facts, including the

seriousness of the violation and any good faith efforts to

comply, it has been determined that immediate compliance

with said Regulation VIII is reasonable; it is hereby

ORDERED.

1. That on and after Midnight May 10, 1972, Delmarva

Power & Light Company comply with said Regulation VIII

by burning no fuel (or fuel mixture), on any day or portion

of a day, which fuel has a sulfur content which exceeds

36% by weight.

#«> .2. That on or before May 10, 1972, Delmarva Power &

Light Company certify in writing to the Regional Ad-

ministrator of Region III of the Environmental Protection

Agency the steps it will take or has taken to comply with

paragraph 1 of this Order.

3. That commencing June 5, 1972, and continuing there-

after until further Order of the Environmental Protection

Agency, Delmarva Power & Light Company, on or before

the 10th day of each month, certify, in writing, to the

Regional Administrator of Region III of the Environ-

mental Protection Agency, the average sulfur content of

PREG POE TEN, «BLE EL ES AERO nso EOIN 8

EPA Order (4/17/72) A3

the fuel by weight burned on each day during the preceding

calendar month.

Ricuarp P. Na.gsinkx,

for

Epwarp W. Furn,

Regional Administrator

Environmental Protection

Agency.

9 eR erp

nn oe ear

A4 District Court Order (5/10/72)

IN THE

UNITED STATES DISTRICT COURT

For tue District or DeLawake.

Crvi Action No. 4366.

GETTY OIL COMPANY

(EASTERN OPERATIONS), INC.

a Detaware CorRPORATION,

Plaintiff,

WILLIAM D. RUCKELSHAUS, as ApmrnistraTor OF THE

ENVIRONMENTAL Protection AGENCY, AND THE

ENVIRONMENTAL PROTECTION AGENCY,

Defendants.

ORDER.

Plaintiff having filed a motion for a Temporary Re-

straining Order staying the effect of a compliance order

issued by the Administrator of the Environmental Pro-

tection Agency, and the matter having been argued, briefed

and considered,

It is OnpERED in conformance with the Court’s opinion

of May 10, 1972 that the motion for Temporary Restraining

Order is hereby denied.

/s/ Wauter K. Srapuetoyn, J.

Dated: May 10, 1972.

5 ~ -

ITER, A TROT: ET... IR

TAR i wi

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7s Ra

;

District Court Order ( ~~ A5

IN THE

UNITED STATES DISTRICT COURT

IN AND FOR THE District oF DELAWARE

C. A. No. 4366, 1972.

GETTY OIL COMPANY (EASTERN OPERATIONS),

INC., a DeLAware Corporation,

Plaintiff,

WILLIAM D. RUCKELSHAUS, as Apmrnistrator oF THE

ENVIRONMENTAL PRoTECTION AGENCY, AND THE EN-

VIRONMENTAL PROTECTION AGENCY,

Defendants.

ORDER.

Whereas, the plaintiff, Getty Oil Company (Eastern

Operations), Inc., presented its motion for a preliminary

injunction in the above-captioned case and relied on the

papers previously filed in support of its application for a

temporary restraining order;

Now, TuHererore, It Is Orperep, for the reasons set

forth in the Court’s opinion of May 10, 1972, that the appli-

cation for a preliminary injunction is hereby denied.

/s/ Wauter K. Stapieton,

Walter K. Stapleton,

District Ct. Judge.

Dated: May 12, 1972.

OO NG RANGER GF EBISU KL

A6 District Court Opinion (5/10/72)

UNITED STATES DISTRICT COURT

D. DELAWARE

Crv. A. No. 4366.

GETTY OIL COMPANY (EASTERN OPERATIONS),

INC., a DELAwarE CorPORATION,

Plaintiff,

WILLIAM D. RUCKELSHAUS, as ApMInistTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, AND THE EN-

VIRONMENTAL PROTECTION AGENCY,

Defendants.

May 10, 1972.

Supplemental Opinion May 10, 1972.

OPINION.

Srap.eton, District Judge.

This action seeks (1) preliminary and permanent

orders staying the effect of a compliance date set forth in a

compliance order issued by the Administrator of the En-

vironmental Protection Agency (the ‘‘Administrator’’)

pursuant to Section 113 of the federal Clean Air Act as

amended by the Air Quality Act of 1967 and the Clean Air

Act amendments of 1970 (42 U.S. C. § 1857 et seq.) (‘‘the

Clean Air Act’’) and (2) a declaratory judgment that this

compliance order is null and void. The case is currently «

before me on plaintiff’s motion for a temporary restraining

District Court Opinion (5/10/72) A7

order. Except to the extent otherwise indicated below, the :

relevant facts are not in dispute.

Since 1956, plaintiff Getty Oil Company (Eastern

Operations), Inc. (‘‘Getty’’) and its predecessors in inter- f

est have operated a large oil refinery in Delaware City, :

New Castle County, Delaware. One of the products of this i

oil refinery is fluid petroleum coke. When operating at

capacity, the refinery produces approximately 1,500 tons ;

per day of this black, sand-like substance. Coke is a high :

energy fuel with heat generating characteristics. In order

to make use of this fuel, Getty decided to utilize the coke to

supply a large portion of the energy requirements of the

refinery. Accordingly, a power station was constructed in

conjunction with the refinery and designed to burn fluid

coke along with either fuel gas or oil. This power station

is operated by Delmarva Power & Light Company (‘‘Del-

marva’’). Delmarva’s power station burns the fluid coke

under a long term contract with Getty and supplies all of

the electricity and steam requirements needed to operate

the refinery. The station also generates electricity for Del-

marva’s power grid at Delaware City.

In September of 1970 Delaware’s Water and Air Re-

sources Commission (the ‘‘Commission’’) noticed and held

a public hearing on proposed air pollution regulations for

the State of Delaware. Getty appeared at the hearing and

E argued against adoption of a proposed regulation which

would have the effect of limiting the sulphur content in fuel

burned at Delfarva’s power plant to 3.5% after January 1,

1972. Thereafter, on October 13, 1970, the Commission

: adopted Regulation XV, Section 2.4 (the ‘‘Regulation’’)

: providing that ‘‘after January 1, 1972, fuel having a sulphur

content greater than three and five-tenths percent (3.5%)

by weight shall not be utilized in the area south of U. S.

Route 40 in New Castle County for fuel burning equipment

A8 District Court Opinion (5/10/72)

having a maximum rate of heat input equal to or greater

than 500,000,000 b.t.u. per hour.’’ Since the Delmarva

power station is the only establishment having such equip-

ment within the area specified, this regulation presently

affects only that installation. Under a regulation simul-

taneously adopted, facilities with fuel burning equipment

having a smaller rate of heat input were limited after Janu-

ary 1, 1972 to the burning of fuel having a sulphur content

of 1% or less.

Section 3 of Regulation XV provided an alternative

control. It specified that ‘‘the sulphur and fuel restrictions

of Section 2 shall not apply in any case where it is demon-

strated to the Department that the sulphur dioxide emis-

sion from any unit of fuel burning equipment will be con-

trolled to sulphur dioxide levels equivalent to the sulphur

dioxide emissions that would result by virtue of burning

the applicable fuels listed in Section 2 as they apply.’’

Getty took no appeal to the Delaware state courts at-

tacking the Commission’s approval of these regulations on

October 13, 1970.1 They became part of Delaware’s Imple-

mentation Plan for attainment and maintenance of the pri-

mary national standards for sulphur dioxide promulgated

by the Administrator under the Clean Air Act. The sulphur

dioxide portion of Delaware’s Implementation Plan re-

ceived federal approval on August 4, 1971. While this ap-

proval received substantial publicity at the time and pre-

sumably came to Getty’s attention shortly after the action

was taken, notice of the approval was not published in the

Federal Register until February 3, 1972.

1. Section 6012 of Title 7 of the Delaware Code provides that

“any person whose interest is substantially affected by any action,

order or decision of the Commission” may appeal to the Superior

Court of the appropriate county which “shall hear and determine

the matter as a suit in law and equity.” 7 Del. C. § 6012 as amended

effective July 23, 1970.

District Court Opinion (5/10/72) A9

After the Commission’s adoption of the regulation,

Getty made an effort to find a technology which would

permit compliance, before January 1, 1972, by meeting the

terms of Section 3. The search revealed that there is no

such technology presently available and that the most

promising technologies presently being studied will not

enable the Delaware City plant to comply by meeting the

alternative control of Section 3 before 1976.

During the summer of 1971, Getty determined that,

‘‘since the quality of air in New Castle County, Delaware

was very good and [already] met the national primary

standard for sulphur dioxide,’’ it should apply for ‘‘a

variance’ from the effect of the regulation pursuant to

Delaware’s air pollution control statute. 7 Del. C. § 6007.

While the proposition is disputed, Getty had submitted

competent expert testimony by way of affidavit that the

available data collected by air monitoring stations during

the last eleven years pertaining to the ambient air con-

centrations of sulphur dioxide in New Castle County, with

one minor exception, show full compliance with the national

primary standards for sulphur dioxide. Getty’s expert

further expresses the opinion, currently uncontradicted in

the record, that ‘‘there exists no danger whatsoever to the

public health from the existing levels of sulphur dioxide

in the ambient air in New Castle County, Delaware.”’

On September 28, 1971, Getty applied for a variance

with the Secretary of the Department of Natural Re-

sources and Environmental Control of the State of Dela-

ware (hereafter the ‘‘Secretary’’ and the ‘*Department’’,

respectively). On December 28, 1971, the Secretary denied

Getty’s application. He determined that if the variance

were granted compliance with the national sulphur dioxide

primary standard would be achieved no earlier than late

1975 or early 1976 and that the granting of the variance

AAAS Pa RSE te a

wy a i

A10 District Court Opinion (5/10/72)

was precluded by the federal statute and regulations. He

denied ‘‘a stay’’ pending an appeal of his decision to the

Commission as provided by Delaware law. 7 Del. C. § 6008.

Getty’s appeal is currently pending before that body.

Having unsuccessfully applied to both the Department

and Commission for a stay of the effect of the regulation,

Getty instituted an action against the Secretary in the

Court of Chancery in and for New Castle County on De-

cember 29, 1971. That court entered a temporary restrain-

ing order restraining enforcement of the regulation by

the Secretary and the Commission ‘‘until further order of

the court.’ This temporary restraining order is still in

effect. While there has been no formal disposition of

Getty’s motion for a preliminary injunction, the Vice

Chancellor has recently denied an application of the Secre-

tary to vacate the restraining order.

Since approval by the Environmental Protection

Agency (‘‘EPA’’) of Delaware’s Implementation Plan no

petitions for review of the Administrator’s action have

been filed pursuant to Section 307(b)(1) of the Clean Air

Act by Delmarva, Getty or any other party.

On February 14, 1972, the EPA sent a certified letter

pursuant to Section 114(a) of the Act to Delmarva. The

letter requested information dealing with the sulphur con-

tent of fuel burned by Delmarva at its Delaware City

plant. The data provided in response revealed that the

total content of sulphur by weight exceeded 3.5% during

the month of January. Updated information thereafter

submitted by Delmarva demonstrated that the same situa-

tion existed in February and March of 1972. On the basis

of Delmarva’s admissions, the Administrator of the EPA,

pursuant to Section 113(a)(1) of the Clean Air Act, deter-

mined that a requirement of an applicable implementation

plan had been violated. The Administrator notified Del-

PT ot SCOTT Se ae eee Loe ee tee

SPDT CN A YET ARERR PM NE ARE:

District Court Opinion (5/10/72) All

marva of this violation by registered letter dated March

6, 1972. A conference was held on March 20, 1972. On

the basis of admissions then made by Delmarva, together

with Delmarva’s continuing submissions under Section

114(a)(1), it was determined that a violation of the regu-

lation did exist, and that said violation has continued

beyond the thirtieth day after the date of the Adminis-

trator’s March 6, 1972 letter. On April 17, 1972 the Admin-

istrator, pursuant to Section 113(a)(1) of the Act, issued

the order which is the subject of this proceeding directing

compliance by May 1, 1972. This suit was filed on April

21, 1972 and a hearing on Getty’s application for a tem-

porary restraining order was held on April 27, 1972.

Thereafter, the Administrator voluntarily agreed to sus-

pend the effectiveness of the compliance date until May 10,

1972 in order to allow the Court more time to consider

the issues briefed and argued by the parties.

Delmarva joined in Getty’s application for a variance.

While it is not a party here, an affidavit of its chief execu-

tive officer has been filed stating that Delmarva intends

to comply with the Administrator’s order ‘‘unless relieved

of compliance by an order of this Court pursuant to the

application of Getty Eastern, and will not run the risk of

incurring criminal fines and jail sentences which might be

imposed if it did not comply.’’ According to the Delmarva

affidavit ‘‘substantially all of the increased cost resulting

from the requirement . . . that Delmarva Power & Light

Company burn fuel at its Delaware City power station

having a sulphur content by weight of no more than 3.5%

will be passed on by Delmarva Power & Light Company

to its public customers and Getty Eastern.’’ Getty’s share

of the increased cost will amount to approximately $10,000

per day.

samme de

aes a EPA HERRERA AE LET LAINE ALIA LE A

ee or ER er En ne ee ee ee ee

Al2 District Court Opinion (5/10/72)

When analyzing the respective arguments of the

parties with respect to jurisdiction, it is necessary to keep

in mind the grounds which Getty asserts as a basis for

affirmative relief. Getty here attacks both the regulation

and the Section 113 compliance order. While Getty ex-

pressly disavows any claim that the regulation is invalid

as a ‘‘generally applicable regulation,’ Getty does allege

that it is ‘“‘arbitrary and unreasonable in its application

to pla ntiff and that its enforcement as to plaintiff * would

be in violation of the requirements of the Fourteenth

Amendment to the Constitution of the United States.”’

This assertion is not further elaborated in the complaint.

As I understand it, however, the arbitrariness and un-

reasonableness of the regulation result from the alleged

facts (1) that the national primary standards for sulphur

dioxide have already been achieved in New Castle County

and the regulation is accordingly wholly unnecessary to

achieve and maintain that standard, and (2) that com-

pliance with the regulation at least prior to developments

of an alternative control technology would impose an un-

reasonable hardship on Delmarva and Getty. In connection

with this latter point Getty asserts that it has applied for

a variance on the basis of this hardship and that enforce-

ment of the regulation prior to a determination of its

appeal from the Secretary’s denial of a variance would

deprive it of procedural due process.

With respect to the compliance order Getty claims that

it is “‘unwarranted by the facts, arbitrary and capricious,”

and ‘‘otherwise unlawful.’"’ Its enforcement prior to a

““due process hearing’ in this Court would also, Getty

claims, ‘‘constitute the taking as property without due

process of law.’’ Finally, Getty asserts that the compli-

ance order is invalid because it was issued in violation

2. Emphasis supplied.

Al3

District Court Opinion (5/10/72)

of the National Environmental Policy Act (‘‘NEPA’*’),

42 U. S. C. § 4321 et seq.’

I have concluded that plaintiff does have standing to

bring this action‘ and that this Court has jurisdiction to

ther asserts (1) that Getty has no standing to raise them

and (2) that this Court is without jurisdiction to pass

pass upon the issues presented under 28 U. 8. C. § 1337

upon them.

as well as under the Administrative Procedure Act

(“APA”), 5 U. S. C. § 701 et seq. wnless, and except to

and the Declaratory Judgment Act (28 U. 8. C. § 2201),

kes nse

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raise its NEPA

650 (10th Cir

Al4 District Court Opinion (5/10/72)

the extent that, the Clean Air Act precludes review.’

Accordingly, I turn to that Act.

Section 110(a)(1) of the Clean Air Act provides that

‘‘each State shall, after reasonable notice and public hear-

ings, adopt and submit to the Administrator, within nine

months after the promulgation of a national primary

ambient air quality standard . . . a plan which provides

for implementation, maintenance, and enforcement of such

primary standard in each air quality control region (or

portion thereof) within such State."’ If the Administrator

determines that a state's implementation plan meets the

requirements of the federal] statute and has been adopted

by the state after reasonable notice and public hearings,

he must approve the plan within four months after sub-

mission. Section 307(b) of the Act provides in part as

follows :

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

trator’s action in approving or promulgating any im-

plementation plan under section 110 . . . may be filed

only in the United States Court of Appeals for the

appropriate circuit. Any such petition shall be filed

within 30 days from the date of such promulgation or

approval, or after such date if such petition is based

solely on grounds arising after such 30th day.

(2) Action of the Administrator with respect to

which review could have been obtained under para-

graph (1) shall not be subject to judicial review in

civil or criminal proceedings for enforcement.’’

While there is some dispute about the effective date

of the Administrator’s approval, Getty maintains, with

5. General Motors wae

(D. Del. 1970), modified, F 24 922 Cord Gi

District Court Opinion (5/10/72) Al5

substantial justification, that it became effective on Febru-

ary 3, 1972 when notice thereof was first published in the

Federal Register. Getty filed no review action under

Section 307 within the allotted 30 days.‘ While paragraph

(2) quoted above refers only to enforcement proceedings

it clearly evidences a congressional inten‘ that matters

which can be raised in a Section 307 review proceeding

shall not be litigated elsewhere. Accordingly, this Court

in such a proceeding.

It seems clear that judicial determination of an attack

on the validity of a compliance order not based upon the

invalidity of the underlying regulation is not expressly pre-

eluded by Section 307. On the other hand, it would appear

that attacks upon the Administrator's approval of a regu-

lation are precluded if not asserted in a Section 307 review

proceeding. Getty acknowledges that this is true as to at-

tacks upon a regulation as ‘‘invalid on its face’’ or as un-

lawful as a ‘‘generally applicable regulation,’’ but asserts

that it is not true with respect to an allegation of an affected

party that the regulation is “invalid as applied to him.’

If there is any merit to this distinction, I do not think that

it can apply quite so broadly as Getty suggests.

The text of the last sentence of Section 307(b)(1) makes

it clear that Congress did not intend to limit Section 307

review to cases where the Administrator's approval of a

regulation is challenged on grounds that the procedure fol-

lowed did not comply with the statute, that the Administra-

tor exceeded his statutory authority, or that the regulation

is otherwise void on its face. Such grounds would always

exist upon the date of the approval and the last clause con-

6. None of the facts relied upon by Getty in its present attack

quntinanitien emmak dat tetas de.

Al6 District Court Opinion (5/10/72)

templating grounds arising after 30 days would have no

conceivable application.”

Moreover, a party must have standing to secure judi-

cial review and in a very real sense any challenge to the

validity of a regulation is a challenge to the regulation as

applied to the objecting party. In the instant case, Getty’s

argument that the regulation is wholly unnecessary because

the national primary standard has already been achieved in

New Castle County is a contention which anyone affected

by the regulation could raise and is not personal to Getty

inany way. Nor does Getty’s ‘‘arbitrary and unreasonable’’

argument change its basic character when Getty adds that

along with being unnecessary the regulation is also very

costly. Getty could have argued at the hearing and on re-

view under Section 307 that the economic burdens imposed

by the regulation when compared to environmental benefits

render the regulation wholly arbitrary.* Congress intended

to have such challenges disposed of as soon as possible after

the Administrator’s approval. Having failed to avail itself

of the opportunity provided, Getty cannot now complain.’

7. This concluding clause is not explainable as being applicable

to an Administrator’s approval of revisions of an implementation

plan. They either come within the phrase “Administrator’s approval

of an implementation plan” or they do not. If they do, approval com-

mences a fresh 30 day period under Section 307(b)(1). Ii they

do not that section is inapplicable. In neither event is the presence

of the concluding clause explained.

8. The cost to Delmarva and Getty would, of course have been

relevant evidence of the economic burdens which the regulation would

impose. Indeed, on the facts of this case, the cost to Delmarva and

Getty was the only economic burden which would be imposed, at

least initially.

9. Getty argues that the Court of A s would surely have re-

fused to decide its contention because y and Delmarva had not

exhausted the possibility of a variance. I am unpersuaded. Congress

did not require a variance procedure in the Clean Air Act beyond

that provided for in Section 110. It is unlikely that it enacted Sec-

tion 307 with the idea that challenges to a regulation as “generally

applicable” would be taken care of by Section 307 but that challenges

District Court Opinion (5/10/72) Al7

aes Ns

Section 307(b)(1) appears to be an adaptation of a

technique previously used by Congress in other regulatory

schemes. The National Traffic and Motor Vehicle Safety

Act, 15 U. 8. C. § 1381 et seq., for example, provides for

circuit court review, within sixty days, of an order estab-

lishing federal motor vehicle standards. 15 U.S. C. § 1394.

Circuit court review proceedings under that act have been

considered appropriate vehicles for raising arguments that

an approved standard is arbitrary and unreasonable be-

cause unnecessary, uneconomic and illsuited to the accom-

plishment of the objectives of the regulatory program. See

Automotive Parts & Accessories Association v. Boyd, 132

U. S. App. D. C. 200, 407 F. 2d 330 (1968). See also Ameri-

can Bond & Mortgage Co. v. United States, 52 F. 2d 318

(7th Cir. 1931) (holding that a constitutional attack on an

administrative ruling under the Federal Radio Act, as ap-

plied to plaintiff should have been raised in a Court of

Appeal review proceeding provided for in the Act.”®

9. (Cont’d.)

to a regulation as specifically applied would be relegated a procedure

which might or might not be included in the regulations. Moreover,

it is unlikely that a court would relegate a party to a variance proce-

dure when, as I have hereafter indicated, any variance if granted by

Delaware would not become effective under the federal regulations

until approved by the Administrator, thereby exposing Getty to al-

legedly irreparable injury in the interim.

10. It is true that the Clean Air Act differs from the Motor

Vehicles Safety Act and, indeed, in some respects from any other

federal regulatory scheme the Court has been able to find and examine.

Unlike the Safety Act, it is a cooperative state-federal program and

hearings on state implementation plans are held before the Adminis-

trator only when the state has not conducted one. Apparently, the

Administrator’s information resources are ordinarily limited to the

record of the state ing (40 C. F. R. §51.4(c)), and the data

gathered by his agency. Moreover, unlike Safety Act, “a concise

statement of [the rules] basis and purpose” is not required.

Concededly if this Court’s view of the congressional intent is correct,

ee ere 2 | aS See See 8

case of this character under ion 307 (a subject to which the

Clean Air Act does not speak) may be somewhat different from

‘rT

mee

— i eaneenimeeeiaitim

Al18 District Court Opinion (5/10/72)

The next question is whether the Clean Air Act as a

whole, by necessary implication, forecloses pre-enforcement

review of issues which could not be raised in a Section 307

review proceeding. We start with the proposition relied

upon in Abbott Laboratories v. Gardner, 387 U. S. 136, 141,

87 S. Ct. 1507, 1511, 8 L. Ed. 2d 681 (1967) that ‘‘only upon

a showing of ‘clear and convincing evidence’ of a contrary

legislative intent should the courts restrict access to judi-

cial review.’’ I conclude that no such contrary legislative

intent is here evident, that the question presented is analo-

gous to that presented in the Abbott Laboratories case, and

that this Court has jurisdiction to entertain non-Section

307 issues raised in a pre-enforcement proceeding.

The text of the Clean Air Act provides no clear indica-

tion of an intention to preclude pre-enforcement judicial

review. The fact that the Act specifies special judicial re-

view proce lures for some issues arising under the Act and

not for others does not by itself evidence a legislative intent

or preclude review of issues falling in the latter category.

Aboott Laboratories v. Gardner, supra, at p. 141, 87 S. Ct.

1507." Nor does the legislative history provide the neces-

sary clear evidence.”

10. (Cont’d.)

a court of appeals review under other existing regulatory programs.

ater 1 ype erect: edge} gg seyparttaggu dy hagas

in a manner consistent with due process, and Getty,

having pursued the statutory remedy, cannot maintain ae

Veius v. United States, 221 U. $. 404, 66S. Ce 608, 88 L. Ea. 656

(1944).

11. Arguably, one could perhaps infer from the fact that Section

307(b)(2) refers only to enforcement actions that Congress had in

poh «Aye ty ac judicial proceedings, Section 307 review

proceedings and enforcement actions. I consider this inference too

ive, however, to override the policy behind the Abbott

Laboratories presumption.

12. I have carefully considered the numerous government refer-

ences to the legislative history of the 1970 amendments and find

each of them either inapplicable as a comment on proposals not

ee ee oe ae ee eee ee eR

District Court Opinion (5/10/72) A19

While there is no dispute in this case that Delmarva is

burning fuel with a sulphur content higher than 3.5%, I

believe the appropriate perspective from which to decide

whether pre-enforcement jurisdiction exists is a case where

there is a honest difference of view as to whether a par-

tieular establishment is or is not in compliance with an

applicable regulation. The government concedes that cases

of this character are likely to arise. In such a situation

compliance may seriously disrupt a business and impose a

heavy economic burden; non-compliance will run the risk

of cumulative fines of up to $25,000 per day as well as im-

prisonment. From this perspective I think it apparent that

the courts should not readily imply a congressional intent

to preclude pre-enforcement judicial review. I decline to

do so.”

As in Abbott Laboratories, jurisdiction for pre-enforce-

ment review under the Clean Air Act will not delay or

impede effective enforcement of the Act. In addition to

the other reasons cited in the Abbott case, the institution

of this type of action does not by itself stay the effective-

ness of the challenged order. If application is made for a

stay, the government can oppose it by showing that delay

would be detrimental to the public health or that one of the

traditional prerequisites of preliminary injunctive relief

is absent.

A court, having determined that it has pre-enforcement

review jurisdiction, must then decide whether it should ex-

ercise its discretion in favor of entertaining the case. Gen-

13. While Getty’s position is different from that of a party like

Delmarva which is subject to cumulating fines, Getty’s case for pre-

enforcement judicial review is stronger in one respect. Theoretically,

Delmarva could fail to comply and test the validity of the compliance

order in a criminal enforcement proceeding. Getty would not be a

party to that proceeding, however, and would have no right to in-

tervene. This type of proceeding, accordingly, may be Getty’s sole

vehicle for challenging the compliance order.

8 ELI LOGY CO" Fe

ak Oh

£o LORPT He SOO Hy ey

: ae ’ ba PER EOE I LT EC! cote OM

6 AOL LET LIED IGE LOE EAL LOE SEEN IE Pees

A20 District Court Opinion (5/10/72)

eral Motors Corporation v. Volpe, 457 F. 2d 922 (3rd Cir.

1972). As the Supreme Court observed in Abbott Labora-

tories, supra, 387 U. S. at pp. 148-149, 87 S. Ct. at p. 1515:

sc“

. . The injunctive and declaratory judgment

remedies are discretionary, and courts traditionally

have been reluctant to apply them to administrative

determinations unless these arise in the context of a

controversy ‘ripe’ for judicial resolution. . . . The

problem is best seen in a twofold aspect, requiring us

to evaluate both the fitness of the issues for judicial

decision and the hardship to the parties of withholding

court consideration.’’

In terms of fitness of the issues for judicial decision

and hardship to the parties, I find this case indistinguish-

able from the Abbott case. The economic impact of com-

pliance and the cumulative daily fines for non-compliance

distinguish this case from General Motors Corporation v.

Volpe, supra.

Accordingly, I turn to the question of whether Getty

has presented an appropriate case for the issuance of pre-

liminary relief. The availability of preliminary injunctive

relief depends upon four criteria:

(1) Irreparable harm to the petitioner unless pre-

liminary relief is granted;

(2) Absence of substantial harm to opposing

party;

(3) Absence of harm to the public interest; and

(4) A likelihood that the petitioner will prevail on

the merits of his case. Nelson v. Miller, 373 F. 2d 474,

477 (3rd Cir. 1967).

It appears from the present record that there will be

some irreparable economic injury to Getty if preliminary

‘

aE:

wi SN i Re ALB

Pa IES CRT et ORD Se le De et te WS oe ie ee

District Court Opinion (5/10/72) A21

relief is denied. The Administrator’s interest is synon-

ymous with that of the public. The only evidence of record

indicates that there would be no hazard to the public health

or safety from a stay of the compliance order pending dis-

position of this case. While the Administrator correctly

points out that the Clean Air Act was adopted by Congress

My as a health measure and that Congress determined that

compliance with the national primary standards is in the

interest of public health, he has thus far tendered no evi-

dence that non-compliance with Regulation XV for the next

several weeks by this particular source would jeopardize

the public health.”

The scale is, therefore, weighted to some degree in

Getty’s favor as we reach a consideration of the likelihood

of its success. I agree with Getty that where irreparable

injury is shown and the question is in reality the likelihood

of success before an administrative body on a technical

issue within its administrative expertise, a court may

properly grant preliminary relief without finding a prob-

ability of success. American Home Products Corporation

v. Finch, 303 F. Supp. 448 (D. Del. 1969). As I view this

case, however, this principle is not here applicable.

As I have heretofore held, the perhaps difficult issues

of the quality of the ambient air in New Castle County and

the economic impact of Regulation XV are not properly

before this Court. Moreover, there is no dispute whatever

that Section 2.4 of Regulation XV is applicable to Delmarva

and that Delmarva has been burning fuel which does not

RRS:

Ps SOT ci

14. I do not here indicate that immediate effect on the public

has anything whatsoever to do with the duty of a person to comply

with a valid regulation adopted under the Clean Air Act. Congress

clearly intended that lack of effect on ambient air from pollution of a

particular source would not excuse a failure to comply. This is not

an enforcement action, however. It is a suit to enjoin allegedly in-

valid agency action and the issue now before the Court is whether

that action should be stayed pending a judicial determination of its

validity.

ee ee a ee ee te COC ee. |

I LIENS ARP en ei Re SINC

A22 District Court Opinion (5/10/72)

comply with its requirements. This leaves Getty on the

merits with (1) the argument that due process and the

Delaware statute require a stay pending determination of

the variance appeal, (2) the argument that the Adminis-

trator’s selection of May 1, 1972 as a compliance date was

arbitrary and capricious, and (3) the argument that the

compliance order violates the NEPA. For the reasons

hereafter set forth, I consider the likelihood of Getty’s

success on any of these arguments very slim.

1. The Variance Appeal and Due Process.

I conclude that the Clean Air Act and the regulations

promulgated thereunder provide that no deferral of the

applicability of a regulation to a particular source of emis-

sions can be effective until approved by the Administrator,

that this forecloses a ‘‘stay’’ of the effect of the regulation

pending final determination of Getty’s variance applica-

tion, and that this result does not violate Getty’s right to

procedural due process.

In the terminology of the statute and regulations,

Delaware’s Regulation XV is a part of the compliance

schedule incorporated in Delaware’s Implementation Plan.

It has received federal approval and violation thereof is a

federal crime enforceable by the Administrator. The fed-

eral statute and regulations do contemplate deferrals of the

application of such a regulation to a particular source, but

only under carefully circumscribed conditions.

Subsection 51.15(d) of the regulations *® provides as

follows:

‘**Except as otherwise provided by Subpart C of

this part, neither the State agency nor a local agency

shall grant any variance of, or exception to, any com-

15. The regulations hereinafter referred to are found in Part 51

of Title 40 of the Code of Federal Regulations.

District Court Opinion (5/10/72) A23

pliance schedule included in an applicable plan if such

variance or exception will prevent, or interfere with,

attainment or maintenance of a national standard

within the time(s) specified . . . [in the implementa-

tion plan].’’

Getty maintains that the variance it has requested will

not prevent, or interfere with, attainment or maintenance

of a national standard because compliance has already been

achieved in New Castle County. The Secretary in acting

upon Getty’s application determined that such a variance

would prevent attainment of the national standard until

late 1975 or early 1976, which would be later than the date

specified in the plan under any construction thereof.’* For

present purposes, I will assume, without deciding, that

Getty’s position here is factually correct.

Getty argues that the above-quoted regulation by nega-

tive implication indicates that no federal approval is re-

quired for a variance or exception which will not prevent

attainment or maintenance of the national standard within

the time specified. It argues with justification that attain-

ment of the national standard is the Administrator’s sole

concern and that he is not concerned about state action hav-

ing a lessor effect. While I agree with Getty’s characteriza-

tion of the Administrator’s onesies I do not agree

with its conclusion.

Subsection 51.15(d) must be read in the context of the

regulations as a whole. Subpart C of the regulations deals

with extensions. Section 51.32 thereof provides that de-

ferrals up to not more than one year may be granted by

the Administrator if requested by the Governor of the State

even though the deferral may prevent attainment or main-

16. Getty maintains that the plan specified no date and that by

operation of law the pertinent date is February 3, 1975.

aye —

a |

Barn

A24 District Court Opinion (5/10/72)

tenance of a national standard within the time specified in

the plan. Subsection (f) of that section provides as follows:

‘‘(f) A State’s determination to defer the ap-

plicability of any portion(s) of the control strategy

with respect to such source(s) will not necessitate a

request for postponement under this section unless such

deferral will prevent attainment or maintenance of a

national standard within the time specified in such plan:

Provided, however, That any such determination will

be deemed a revision of an applicable plan under Sec-

tion 51.6.’’

Subsection (d) of Section 51.6 provides:

‘*Any revision of rules and regulations and of

compliance schedules shall be submitted to the Admin-

istrator in accordance with § 51.5 within 60 days follow-

ing its adoption.’’

Section 51.8 provides:

‘‘The Administrator shall approve any plan, or

portion thereof, or any revision of such plan, or portion

thereof, if he determines that it meets the requirements

of the Act. Revisions of a plan, or any portion thereof,

shall not be considered part of an applicabie plan until

such revisions have been approved by the Adminis-

trator in accordance with this part.’’

The fallacy in Getty’s analysis of the regulations is

that, while the Administrator’s concern is whether the

state’s plan will meet the national standards, he has a vital

interest, precisely because of that responsibility, in the de-

termination of whether a particular deferral will have the

effect of preventing attainment or maintenance of the na-

tional standard. For this reason, the regulations provide

that any deferral of the application of a compliance sched-

a“ |

District Court Opinion (5/10/72) A25 Ns

ule, whatever its effect, is deemed a revision of the plan

which must be submitted to the Administrator for his con-

sideration. Under Section 51.8 he is required to approve 5

it if it will not prevent attainment of the national standards °

and required to disapprove it if it will have that effect

unless it is requested by the Governor and the other condi-

tions of Section 51.32(a) through (g) are met. The im-

portance of the requirement of submission to the Adminis-

trator for his consideration is demonstrated by the very

case, where there is substantial difference of opinion as to

whether the variance requested by Getty will or will not

prevent attainment of the national standard within the time

specified.

In short, the Administrator is duty bound to enforce an

approved implementation plan. Revisions of a plan, in-

cluding any deferrals of an applicable compliance schedule,

do not become a part of an applicable plan until approved

by the Administrator. It follows that Delmarva is required

by federal law to comply with Regulation XV unless and

until a deferral is granted by the state and approved by the

Administrator. To the extent, if any, that Section 6008 of

Title 7 of the Delaware Code dealing with stays pending

appeals to the Commission conflicts with this conclusion

based on the federal statute and regulation it is of no effect.

Getty cites no authority for its contention that enforce-

ment of the regulation prior, to a determination of its vari-

ance application will deny it procedural due process and

the court has found none. Under the statutory scheme

Getty and Delmarva, as I have previously held, either had

or now have an opportunity for judicial determination of

the validity of the regulation itself. Accordingly, its en-

forcement clearly cannot deprive them of procedural due

process. What they are now trying to do in the variance

proceeding is to persuade the Commission that a better rule

A26 District Court Opinion (5/10/72)

as applied to their situation would not require 3.5% until

some later date. Getty and Delmarva may or may not be

successful in this effort and the required further effort to

persuade the Administrator that such a rule would not pre-

vent attainment of the national standard within the perti-

nent time period. But the Constitution does not require

that they be excused in the meanwhile from complying with

the regulation.

2. The May 1, 1972 Compliance Date.

Section 113 of the Clean Air Act provides in part:

**(a)(1) Whenever, on the basis of any informa-

tion available to him, the Administrator finds that any

person is in violation of any requirement of an appli-

cable 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 vio-

lation extends beyond the 30th day after the date of

the Administrator’s notification, the Administrator

may issue an order requiring such person to couply

with the requirements of such plan or he may bring a

civil action in accordance with subsection (b).

(4) An order issued under this subsection (other

than an order relating to a violation of section 112)

shall not take effect until the person to whom it is

issued hes had an opportunity to confer with the Ad-

ministrator concerning the alleged violation. A copy

of any order issued under this subsection shall be sent

to the State air pollution control agency of any State

in which the violation occurs. Any order issued under

this subsection shall state with reasonable specificity

the nature of the violation, specify a time for compli-

District Court Opinion (5/10/72) A27

ance which the Administrator determines is reasonable,

taking into account the seriousness of the violation and

any good faith efforts to comply with applicable re-

quirements. . . .”’

Subsections (b) and (c) of Section 113 as adopted in

1970 provided for the institution of a civil or a criminal

action when a person has failed to comply with a compli-

ance order within the time stated. These sections were

amended in 1971, however, to also provide for the institu-

tion of such proceedings if a violation extends beyond the

thirtieth day after the Administrator's notification.

As previously indicated, Getty asserts that the compli-

ance order was arbitrary and unreasonable. In light of the

conclusions which I have heretofore reached, the only re-

maining basis for such an argument is that the Administra-

tor’s determination of a compliance date was an abuse of

discretion. The government contends that resolution of

this issue is wholly unnecessary because the 1971 amend-

ments to the Clean Air Act eliminates the procedure de-

scribed in Subsection (a)(4) as a prerequisite to enforce-

ment actions. I shall assume for present purposes, however,

that the Administrator, having elected to proceed via the

compliance order route, is now bound by his election."”

It is undisputed that low sulphur fuel is available and

that, at the time of the issuance of the order, compliance by

May 1, 1972 was feasible. Getty does not suggest that com-

pliance with the regulation on May 1, 1972 would impose

any greater or different burden upon it than compliance

17. Se Saas Cae Sane ab Cane Sey ee Se

1971 amendments. They are somewhat puzzling. Subsection

rote” © Regen

A228 District Court Opinion (5/10/72)

three months from now. Its arguments that the May 1,

1972 date was arbitrary and unreasonable would apply to

any date prior to the availability of alternative control

technology. According to its best estimates this will prob-

ably be 1976. This is obviously not the type of considera-

tion which Congress meant the Administrator to consider

in setting a compliance date under Section 113(b)(4).

Getty’s argument here is in reality an attack on the regu-

lation itself. Section 113 is simply not an appropriate

vehicle under the statute scheme for attacking a regulation

or securing a variance. If reviewable at all, the determina-

tion by the Administrator of a compliance date under

Section 113(b)(4) is reviewable only for an abuse of dis-

cretion. Getty has come forward with no fact which would

indicate that he abused his discretion in this instance.

3. The Applicability of NEPA.

Getty argues that enforcement of the compliance order

should be stayed because of the EPA's failure to file an

environmental impact statement under the National En-

vironmental Policy Act of 1969 (‘‘NEPA’’), 42 U. S. C.

§ 4321 et seq. (Supp. 1972). Section 102(2)(C) of NEPA,

42 U. S. C. §4332(2)(C) provides:

**The Congress authorizes and directs that, to the

fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be inter-

preted and administered in accordance with the policies

set forth in this chapter, and (2) all agencies of the

Federal Government shal]—

proposals for legislation and other major Federal

actions significantly affecting the quality of the human

District Court Opinion (5/10/72) A29

environment, a detailed statement by the responsible

official on—

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved in

the proposed action should it be implemented.

Prior to making any detailed statement, the respon-

sible Federal official shall consult with and obtain the

comments of any Federal agency which has jurisdic-

tion by law or special expertise with respect to any

environmental impact involved. Copies of such state-

ment and the comments and views of the appropriate

Federal, State, and local agencies, which are authorized

to develop and enforce environmental standards, shall

be made available to the President, ‘he Council on En-

vironmental Quality and to the public as provided by

section 552 of Title 5, and shall accompany the pro-

posal through the existing agency review processes ;"’

It is conceded that no impact statement was filed in con-

nection with the issuance of the compliance order.

Apart from legislative recommendations, Section 102

(2)(C) is only applicable to “‘major Federal actions sig-

nificantly affecting the quality of the human environment.”’

Satan

A30 District Court Opinion (5/10/72)

(Emphasis supplied). Therefore, whether the EPA was

bound to file an impact statement depends upon whether or

not the compliance order was a major action affecting the

environment within the meaning of the NEPA. See Scherr

v. Volpe, 336 F. Supp. 886 (D. Wis. 1971). Getty argues

that issuance of the compliance order was the type of

federal action requiring an impact statement because it

results in inefficient utilization of natural resources and

creates an environmental problem by requiring disposal of

substantial quantities of coke. Here, once again, Getty

misinterprets the nature and scope of a decision to issue a

compliance order under Section 113.*

I assume for present purposes, contrary to the Ad-

ministrator’s contention, that the NEPA applies to the

EPA.” I further assume without deciding that the Ad-

ministrator’s approval of Delaware’s Implementation Plan,

including Regulation XV, was major action affecting the

environment within the meaning of the NEPA. If so, any

attack on that approval based on the failure of the Ad-

ministrator to issue an impact statement prior to his ap-

proval would be a matter with respect to which review could

have been obtained under Section 307 of the Clean Air Act

and cannot now be pressed before this Court.

The purpose of the NEPA is to require federal

agencies to consider environmental preservation in their

respective spheres of responsibility and, to this end, it pre-

scribes certain procedural measures to ensure that such

18. The Administrator’s argument that the 1971 amendment to

Section 113 renders the issuance of a compliance order unnecessary

as a prerequisite to civil or criminal enforcement proceeding and,

therefore, irrelevance does not completely answer Getty’s argu-

ment here. Getty could make the same argument, if necessary, about

the issuance of the notice under Section 113(a) which is still a pre-

requisite to enforcement. The following comments in the text of this

opinion, however, would apply equally to the issuance of such a notice.

19. Kalur v. Resor, 335 F. Supp. 1 (D. D. C. 1971) supports

Getty’s position on this point.

FR ON EOL I AE II LE OO TIE o<

District Court Opinion (5/10/72) A31

consideration will in fact be given. Calvert Cliffs’ Co-

ordinating Committee v. United States Atomic Energy

Commission, 146 U. S. App. D. C. 33, 449 F. 2d 1109 (1971) ;

Kalur v. Resor, 335 F. Supp. 1 (D. D. C. 1971). The pro-

cedures specified clearly indicate that Congress intended

such consideration when an agency was in the process of

exercising its discretion between two or more alternatives

open to it under the controlling law. The impact statement

must specify such alternatives.

Here the applicable law provided that no one in Del-

marva’s position could burn fuel after January 1, 1972

which had a sulphur content by weight in excess of 3.5%.

When the compliance order was issued the Administrator

had no discretion, absent a lawful revision of the Delaware

Plan pursuant to the prescribed procedure, to recognize any

other rule of law. To he sure, he had discretion whether to

institute enforcement proceedings and, within reasonable

limits, when to insist upon compliance. In effect, he had

prosecutorial discretion, but no discretion to amend or

grant a variance to the law.”* In such a context, to require

the interagency consultation and impact statement stip-

ulated by the NEPA would seriously and unnecessarily

impede effective enforcement of the Clean Air Act and

similar federal regulatory programs. I conclude that Con-

gress did not intend this result.

Having weighed the relevant criteria, 1 conclude that

under traditional principles of equity this is an inappro-

priate case for issuance of a temporary restraining order.

20. The Kalur case, relied upon most heavily by Getty, is dis-

tinguishable on this ground. The court there held that water quality

certifications of the EPA establish a minimum condition for the

granting of a permit by the Corps of Engineers under Section 13

of the Rivers and Harbors Act to dispose of industrial refuse in

navigable waters. The Corps of Engineers was found to have dis-

cretion, above that minimum base, to decide whether the granting

of a permit was compatible with environmental concerns. It was,

therefore, in a position of exercising its discretion between lawful

alternatives.

PEA REPO EE IR GR a FR EE INES BS

——-.

re —

A32 District Court Opinion (5/10/72)

Only one further issue remains. This Court’s denial

of a temporary restraining order will result in the enforce-

ment of the compliance order prior to a final judicial deter-

mination of the merits of Getty’s attack on that order.

Citing the cumulative penalties for a failure to obey a

compliance order, Getty argues that absent a hearing prior

to suffering criminal liability and the accompanying accrual

of fines Delmarva will be compelled to acquiesce in the

order. This in turn will impose severe economic penalties

on Getty before it has had an opportunity to a due process

hearing in this Court on the validity of the order. This

Getty asserts would be a denial of its right to due process.

The constitutional requirements of procedural due

process are neither inflexible nor absolute, Joint Anti-

Fascist Comm. v. McGrath, 341 U. S. 123, 162-163, 71 S. Ct.

624, 95 L. Ed. 817 (concurring opinion), and the scope and

nature of the procedures demanded are dependent upon a

balancing of the precise nature of the governmental func-

tion involved and the private interests affected by the

governmental action. Goldberg v. Kelly, 397 U. S. 254, 90

S. Ct. 1011, 25 L. Ed. 2d 287 (1970) and Cafeteria and

Restaurant Workers Union, Local 473 v. McElroy, 367 U.S.

886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). Moreover,

when, as here, the issue concerns the timing of judicial

review rather than the existance of said review, the pro-

cedures which must be afforded to an individual further

depend upon the governmental interest in summary en-

forcement. Goldberg v. Kelly, supra.

I have heretofore held that Getty is entitled to litigate

its challenge to the validity of the compliance order in this

Court. Getty maintains, however, that this remedy, with-

out preliminary relief, is inadequate because of the eco-

nomic penalty it will be required to pay prior to a final

judicial determination of its attack. In support of this

contention, Getty relies on several Supreme Court cases

_—_ A ROL PB PL TEA le BS ALD ig IOC ENE OE MAES AIO ERLE LOI SENG LOGE AFD

District Court Opinion (5/10/72) A33

holding that an order triggering penalties so encumbering

the judicial process as to render resort thereto infeasible

is unconstitutional absent prior judicial review. E.g., Ex

parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714

(1908) ; Oklahoma Operating Co. v. Love, 252 U. S. 331, 40

S. Ct. 338, 64 L. Ed. 596 (1920); Natural Gas Pipeline Co.

of America v. Slattery, 302 U. S. 300, 58 S. Ct. 199, 82

L. Ed. 276 (1937) ; and St. Regis Paper Co. v. United States,

368 U. S. 208, 82 S. Ct. 289, 7 L. Ed. 2d 240 (1961). To the

- extent that these cases stand for the proposition that

cumulative penalties can, in certain circumstances, make

pursuit of judicial remedies so burdensome as to deny due

process, this Court is in complete accord with them. How-

ever, since as has already been discussed, the requirement

of procedural due process in a specific type of case depend

on the particularized circumstances of that type of case,

this observation constitutes the point of departure for the

Court’s determination and not conclusive support for the

plaintiff’s position.

It is clear that not every governmental action which

deprives an individual of a property interest must be pro-

ceeded by a complete judicial review. Ewing v. Mytinger

& Casselberry, 339 U. S. 594, 599, 70 S. Ct. 870, 94 L. Ed.

1088 (1950); Goldberg v. Kelly, supra; Fahey v. Mallonee,

332 U. S. 245, 67 S. Ct. 1552, 91 L. Ed. 2030 (1947). The

Supreme Court has clearly evinced its conclusion that a

valid public interest in summary adjudication will support

prejudgment seizures in suits to enforce private liabilities,

Sniadach v. Family Finance Corp., 395 U. S. 337, 89 S. Ct.

1820, 23 L. Ed. 2d 349 (1968), see also Hahn v. Burke, 430

F. 2d 100 (7th Cir. 1970) and Hall v. Garson, 430 F. 2d 430

(Sth Cir. 1970) ; and in suits to protect the public health and

safety, Ewing, supra, see also Nor-Am Agricultural Prod-

ucts, Ine. v. Hardin, 435 F. 2d 1151 (7th Cir. 1970).

we aye

ae SGT RES SENS PI IE PETE EFF IIE EEN LIS |

Sa ODED BEDE GAL ae OLE LLG LS REE MD EE ALG LOBY IE CBRE

A34 District Court Opinion (5/10/72)

The Ewing case is particularly pertinent to the plain-

tiff’s due process claim. In Ewing, the Supreme Court

refused to enjoin a series of libel actions commenced pur-

suant to the determination of the Secretary of the Food

and Drug Administration that there was probable cause

to believe that the products subject to the condemnation

proceedings were mislabeled. The plaintiff argued that to

subject it to a series of multiple seizures and the ensuing

libel defenses without providing it with the opportunity

to obtain judicial review of the Secretary’s probable cause

finding would constitute a denial of due process. Regard-

ing the due process claim, the court stated:

‘‘TIt is said that these multiple seizure decisions

of the Administrator can cause irreparable damage

to a business. And so they can. The impact of the

initiation of judicial proceedings is often serious.

Take the case of the grand jury. It returns an indict-

ment against a man without a hearing. It does not

determine his guilt; it only determines whether there

is probable cause to believe he is guilty. But that

determination is conclusive on the issue of probable

cause. As a result the defendant can be arrested and

held for trial. See Beavers v. Henkel, 194 U. S. 73,

85 [24 S. Ct. 605, 607, 48 L. Ed. 882]; Ex parte United

States, 287 U. S. 241, 250 [53 S. Ct. 129, 131, 77 L. Ed.

283]. The impact of an indictment is on the reputation

or liberty of a man. The same is true where a prose-

cutor files an information charging violations of the

law. The harm to property and business can also be

incalculable by the mere institution of proceedings.

Yet it has never been held that the hand of government

must be stayed until the courts have an opportunity

to determine whether the government is justified in

instituting suit in the courts. Discretion of any official

ee - on nen —~ a ay > - see ree Det ee ee NODS) Tele eR OR SR ae ee

Nahe sgn)

District Court Opinion (5/10/72) A35

may be abused. Yet it is not a requirement of due

process that there be judicial inquiry before discretion

can be exercised. It is sufficient, where only property

rights are concerned, that there is at some stage an

opportunity for a hearing and a judicial determination.

Phillips v. Commissioner [of Internal Revenue], 283

U. S. 589, 596-597 [51 S. Ct. 608, 611, 75 L. Ed. 1289] ;

Bowles v. Willingham, 321 U. S. 503, 520 [64 S. Ct.

641, 650, 88 L. Ed. 892]; Yakus v. United States, 321

U. S. 414, 442-443 [64 S. Ct. 660, 675, 676, 88 L. Ed.

834].

One of the oldest examples is the summary de-

struction of property without prior notice or hearing

for the protection of public health. There is no con-

stitutional reason why Congress in the interests of

consumer protection may not extend that area of con-

trol. It may conclude, as it did here, that public dam-

age may result even from harmless articles if they

are allowed to be sold as panaceas for man’s ills. A

requirement for a hearing, as a matter of constitutional

right, does not arise merely because the danger of

injury may be more apparent or immediate in the one

case than in the other. For all we know the most

damage may come from misleading or fraudulent

labels. That is a decision for Congress, not for us.

The decision of Congress was that the administrative

determination to make multiple seizures should be

made without a hearing. We cannot say that due

process requires one at that stage.’’ 339 U. S. at

599-600, 70 S. Ct. at 873.

The Supreme Court has exhibited considerable re-

luctance to interfere with legislative determinations con-

cerning economic regulations, Ferguson v. Skrupa, 372

Fr. - - 7 Dene aes aan tee, - nthe Lauds 25S es "y PSR AE QaP Kory

BSP terse cacao Nia TIRE NERS TANT RO IIE a OLY EEE SIL ETIOL EERE TOT

A36 District Court Opinion (5/10/72)

U. S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963). See also

Lincoln Federal Labor Union No. 19129 v. Northwestern

Iron & Metal Co., 335 U. S. 525, 536-537, 69 S. Ct. 251, 93

L. Ed. 212 (1949). Moreover, it has cited the particular

nature of summary adjudication in the public health and

safety area in its recent cases evolving the concept of

procedural due process. Boddie v. Connecticut, 401 U. S.

371, 379, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971); Sniadach

v. Family Finance Corp., 395 U. S. 337, 343, 89 S. Ct. 820,

23 L. Ed. 2d 349 (1969); Goldberg v. Kelly, 397 U. S. 254,

263, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

A holding creating a constitutional procedural due

process right to pre-enforcement judicial review would per-

mit any person to delay enforcement by raising even a

frivolous challenge to the Secretary’s determination.

Getty’s private interest in continuing to do business as it

has done in the past is insufficient to frustrate Congress’

desires in its regulation of public health and safety. See

Ewing, supra; Nor-Am Agricultural Products, Inc., supra.

The Court is of the opinion that the proper procedure

to utilize in attempting to avoid economic hardship of the

character Getty foresees is the stay procedure suggested

in Abbott Laboratories, 387 U. S. at 156, 87 S. Ct. 1507,

18 L. Ed. 2d 681. See also St. Regis Paper Co. v. United

States, 368 U. S. 208, 226, 82 S. Ct. 289, 7 L. Ed. 2d 240

(1961). Such a practice permits a court to preclude undue

hardship when the facts so merit, but does not straight-

jacket the Clean Air Act enforcement procedure at the

insistence of every recalcitrant polluter. While the Abbott

Laboratories case was not decided on constitutional

grounds, the Supreme Court’s concluding comments re-

garding the availability of preliminary relief in pre-

enforcement judicial review proceedings clearly reflects a

view that the plaintiff is not constitutionally entitled to a

SERVE! ° Wet)

72: Goma

FO EPs CF VASE Oe

eo—~n~n~S ae RH Rae A ANS REN SE ROO ARE LED ONE TE TE LERFEE LOBOS APN OAS wir 6 —e

ball

District Court Supplemental Opinion (5/10/72) A37

stay absent evidence which would meet the traditional

criteria for such relief. See also General Motors Corpora-

tion v. Vol, 2! F. Supp. 1112 (D. Del. 1970), modified,

457 F. 25 27. sod Cir. April 5, 1972).

Getts’s application for a stay under the APA, 5

U. S. C. 4 705, must be judged by the same criteria which

control the disposition of its application for a temporary

restraining order. Hamlin Testing Laboratories, Inc. v.

United States Atomic Energy Commission, 337 F. 2d 221

(6th Cir. 1964); Unglesby v. Zimny, 250 F. Supp. 714 (D.

Cal. 1965). For the reasons heretofore set forth, both

applications must be denied.

Submit order.

SUPPLEMENTAL OPINION.

On May 12, 1972, Getty’s application for a preliminary

injunction was heard. In view of the nature of the pro-

ceedings on Getty’s application for a temporary restraining

order, the Court, with the consent of the parties, has con-

sidered Getty’s second application on the record made in

connection with its first application. For the reasons

stated in the Court’s Opinion of May 10, 1972, Getty’s

application for a preliminary injunction must be denied.

Submit order.

Be. BEDI Ee RR RE OLE EPR TERE LIES ERE LORE PE ANTE LAINE I

ri AC ATI, OA POE SEEY CRS Rly DE BOM, MD ATED Ter ty PEER Be

A38 Court of Appeals Judgment (9/12/72)

IN THE

United States Court of Appeals

For tHE Turrp Circuit

No. 72-1419

GETTY OIL COMPANY (EASTERN OPERATIONS),

INC.,

Appellant

WILLIAM D. RUCKELSHAUS, as ApMINistTRATOR OF THE

ENVIRONMENTAL ProTEcTION AGENCY, AND THE EN-

VIRONMENTAL PROTECTION AGENCY

(D. C. Civil Action No. 4366)

On AppeaL From THE Unitep States District Court

FOR THE District oF DELAWARE

Present: Hastie, Rosen and Hunter, Circuit Judges.

JUDGMENT.

This cause came on to be heard on the record from the

United States District Court for the District of Delaware

and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that this cause be, and the same is

hereby remanded to the said District Court with directions

to enter an order of dismissal for lack of jurisdiction.

Attest: Tomas F. Quinn, he

Clerk. |

September 12, 1972

Court of Appeals Opinion (9/12/72) A39

IN THE

United States Court of Appeals

For THE Turrp Circuit

BE No. 72-1419

GETTY OIL COMPANY (EASTERN OPERATIONS),

INC., a DELAWARE CorRPoRATION,

Appellant

WILLIAM D. RUCKELSHAUS, as ApMInIsTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, AND THE ENVIRON-

MENTAL Protection AGENCY,

Appellees

(D. C. Civil Action No. 4366)

AppeaL From THE Unitep States District Court

FOR THE District oF DELAWARE

Argued June 23, 1972

Before Hastie, Rosen and Hunter, Circuit Judges

i OPINION OF THE COURT.

7 (Filed September 12, 1972)

HK Rosen, Circuit Judge.

This appeal is taken from an order of the district

court denying applications for preliminary and permanent

A@ Court of Appeals Opinion (9/12/72)

injunctions and a temporray restraining order staying the

effect of a compliance order issued by the Administrator

of the Environmental Protection Agency (EPA). The Ad-

ministrator issued the order pursuant to Section 113 of the

Clean Air Act as amended by the Air Quality Act of 1967

and the Clean Air Act amendments of 1970, 42 U. S. C.

§ 1857, et seq.

Getty operates an oil refinery in Delaware City, New |

Castle County, Delaware. One of the by-products of its

refinery operation is fluid petroleum coke. Delmarva

Power and Light Company (Delmarva) operates a power

station for Getty. The power station was designed to burn

fluid coke along with either fuel gas or oil. Delmarva

burns the fluid coke produced by Getty under a long term

contract with Getty and thereby supplies the electricity

and steam requirements of the refinery.

On October 13, 1970, after a public hearing on pro-

posed air pollution regulations for Delaware was held,’

the State Water and Air Resources Commission adopted

Regulation IX* limiting the amount of sulphur content

of fuel burned in New Castle County south of United

States Route 40 by fuel burning equipment having a maxi-

mum rate of heat input equal to or greater than 500,000,000

b.t.u. per hour to 3.5%. The Delmarva power station is the

only installation presently operating such equipment in

the area.’

On August 4, 1971, Regulation [IX was approved along

with other sections of Delaware's implementation plan by

1. Getty appeared at the hearing and argued

the inst the ’

of a proposed regulation which would tave tho clit af faaies ae

sulphur content in fuel burned at Delmarva’s power plant to 3.5%

after January 1, 1972.

2. The regulation was subsequently renumbered XV__ Its pres-

ent designation is VIII.

3. No appeal was taken to the Delaware State courts from the

Commission's action. See 7 Del. C. § 6012.

oa —

Court of Appeals Opinion (9/12/72) A4l

the Administrator of EPA. As the court below noted in its

opinion of May 10, 1972, ‘(while this approval received

substantial publicity at the time and presumably came to

Getty’s attention shortly after the action was taken, notice

of the approval was not published in the Federal Register

tion plan no petitions for review of the Administrator's

action have been filed pursuant to section 307(b)(1) of the

Clean Air Act, 42 U. S. C. §1857h-5," by Delmarva or Getty.

On September 28, 1971 Getty submitted a request to

the Secretary of Natural Resources and Environmental

Control of the State of Delaware for a ‘“‘variance’’ from the

January 1, 1972 effective date of the regulation. 7 Del. C.

§6007. The basis for the application was simply that,

since the national primary standards for sulphur dioxide

4. §1857h-5. ADINISTRATIVE PROCEEDINGS AND

5. PR

JUDICIAL REVIEW

E (ay(yee

the District of Columbia. A peti-

in aes ees Tae of

this tithe may be filed only

Spey ia:

be within 30 days from the

26 eee CONE ee oe ae error a ee oo ee

Court of Appeals Opinion (9/12/72)

rl a if iy apterous

m 7 rll Ui

, i i if edi

it ‘il [: lt TRL i

Lil i it itt ta!

ile at it fi ei

pitt: Tee

Ad4 Court of Appeals Opinion (9/12/72)

Getty filed this suit on April 21, 1972 and a hearing

on its application for a temporary restraining order was

held on April 27, 1972. The Administrator voluntarily

agreed to suspend the effectiveness of the compliance date

until May 10, 1972.

The district judge expressed his conception of Getty’s

application in this fashion:

‘While Getty expressly disavows any claim that the

regulation is invalid as a ‘generally applicable regula-

tion’, Getty does allege that it is arbitrary and un-

reasonable in its application to plaintiff and that its

enforcement as to plaintiff would be in violation of the

requirements of the Fourteenth Amendment to the

Constitution of the United States. (Emphasis in text)

* * * As I understand it, however, the arbitrariness

and unreasonableness of the regulations result from

the alleged facts (1) that the national primary stand-

ards for sulphur dioxide have alraady been achieved

in New Castle County and the regulation is accord-

ingly wholly unnecessary to achieve and maintain that

standard, and (2) that compliance with the regulation

at least prior to development of an alternative tech-

nology would impose an unreasonable hardship on

Delmarva and Getty. In connection with this latter

10. (Cont'd.)

OS es 0 Ee OF OO UENEES Ce he ww 4 Date emerson & a en ED

+ Oe ee

Court of Appeals Opinion (9/12/72) A45

point Getty asserts that it has applied for a variance

on the basis of this hardship and that enforcement

of the regulation prior to a determination of its ap-

peal from the Secretary's denial of a variance would

deprive it of procedural due process.

The compliance order is alleged to be arbitrary, ca-

pricious and unwarranted by the facts. Its enforcement

prior to a due process hearing would, Getty claims,

amount to a taking of property without due process of law.

Getty also alleges invalidity of the order due to non-compli-

ance with the requirements of the National Environmental

Policy Act, 42 U. S. C. § 4321, et seq.

The Administrator’s position is that, inasmuch as

Getty is attacking the regulation as being unnecessary

and therefore unreasonable and unconstitutional, pre-

enforcement judicial review of the compliance order is

foreclosed by section 307(b), 42 U. S. C. §1857h-5. Getty

disagrees with the Government’s statement of appellant’s

position, emphasizing its neutrality regarding the regula-

tion on which the compliance order is based.

“Getty accepts the Regulation, but only asks for more

time to comply with it.’’™

Getty argues that the regulation is unnecessary be-

cause the national primary standard has already been

achieved in New Castle county, and that the economic

burdens imposed by the regulation when compared to en-

vironmental benefits render the regulation wholly arbitrary

and unreasonable. The district court recognized that such

attacks upon the Administrator’s approval of a regulation

can only be asserted in a section 707 proceeding. However,

the court concluded that the Clean Air Act as a whole did

11. Appellant’s opening brief, p. 12.

A46 Court of Appeals Opinion (9/12/72)

not foreclose pre-enforcement review because Getty was

raising issues which would not be raised in a section 307

proceeding.” We find that no such issues were presented

to the district court. Getty was posing a direct challenge

to the regulation. No dispute exists regarding the under-

lying facts supporting the Administrator’s compliance

order. Absent such a factual dispute, there only remains

the determination whether Getty’s constitutional right to

a due process hearing prior to the imposition of criminal

sanctions for non-compliance was satisfied.

It was unnecessary for the district judge to determine

whether the Clean Air Act as a whole precludes pre-en-

forcement judicial review by necessary implication. 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 jurisdiction.““ Getty’s arguments against

enforcement require a determination by the court whether

the regulation is unnecessary, unreasonable or capricious.

Whether Getty abides in the regulation ‘‘in its general ap-

plication’’ 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

it would be too the Smelly dg = A he the Clan Ae

Act that had in mind only two types of judicial proceed-

ings, section proceedings and enforcement actions, we find his

concern with the hypothetical “close case”, where an honest differ-

ence of opinion exists whether an air quality regulation has been

violated, to be unwarranted by the facts of this case.

en eS Be ae ¢ entertain

the “issues presented” under 28 U. c."§ 1337, the Declaratory

Judgment Act, 28 U. S. C. § 2201, dts Aichiaeies Renae

Act (APA), 5 U. S.C. § 1 et seq.

—~7V“m" Oe NL A GETTIN IO LEONE PIT IIE YO OREY TENG OE

Court of Appeals Opinion (9/12/72) A47

either the district courts or the appellate courts to cases

not otherwise within their competence. See Zimmerman v.

United States Government, 422 F. 2d 326 (3d Cir. 1970)

cert. den. 399 U. S. 911 reh. den. 400 U. S. 855 (1970) ; Mat-

tingly v. Elias, 325 F. Supp. 1374 (E. D. Pa. 1971).

Mindful as we are of the principle enunciated in

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

courts should restrict access to judicial review only upon

a showing of ‘‘clear and convincing evidence’’ of a con-

trary legislative intent, we are equally impressed by Justice

Frankfurter’s admonition that ‘‘[s]tatutes * * * are in-

struments of government, and in construing them ‘the

general purpose is a more important aid to the meaning

than any rule which grammer or formal logic may lay

down.’ * * * This is so because the purpose of an enact-

ment is embedded in its words even though it is not always

pedantically expressed in words.’’ United States v. Shirey,

359 U. S. 255, at 260-1 (1958).

The Constitution requires an opportunity at a mear

ingful time and in a meaningful manner for a hearing ap-

propriate to the nature of the case. ‘‘The formality and

procedural prerequisites for the hearing can vary, depend-

ing upon the importance of the interests involved and the

nature of the subsequent proceedings.’’ Boddie v. Con-

necticut, 401 U. S. 371, at 378 (1971); see also Ewing v.

Mytinger and Casselberry, Inc., 339 U. S. 594 (1950).

A review of the tangled procedural history preceding

Getty’s institution of this suit convinces us that due process

has been satisfied. First, Getty appeared at Delaware’s

hearing on the proposed implementation plan for attain-

ment of air quality standards and argued against adoption

of Regulation VIII. After approval by WARC, Getty had

an opportunity to appeal the adoption of the regulation to

the state Superior Court. It chose instead to seek a vari-

A48 Court of Appeals Opinion (9/12/72)

ance with the Secretary of Natural Resources and Environ-

mental Control. The Secretary denied the application and

Getty took an appeal to WARC. That appeal is still pend-

ing. The Administrator’s adoption of Delaware’s plan,

and specifically Regulation VIII, received wide publicity in

the media, and presumably came to Getty’s attention in the

fall of 1971. No appeal was taken from the Administrator’s

approval of the implementation plan to the Court of Ap-

peals, 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. Recently, that court denied

a motion by the Delaware Secretary of Natural Resources

and Environmental Control to vacate or modify the re-

straining order. Getty also took the opportunity to par-

ticipate in the conference between EPA and Delmarva

regarding possible violations of the regulations. In light

of the above, Getty’s protestations that the doctrines of

ripeness and justiciability would have foreclosed it from

obtaining meaningful review are frivolous. Furthermore,

we reject Getty’s attempt to establish the limited criteria

for obtaining a variance contained in the Clean Air Act as

a substitute for section 307 judicial review. Getty main-

tains that ‘‘[t]he adoption of the Regulation by the Com-

mission involved the applicability of all the Regulations to

the state as a whole and involved very different questions

than are presented by the rather narrow question of a vari-

ance application which is made on the grounds of hardship

to a Regulation which may be otherwise suitable for the

entire state.’’ However, the fact remains that the regula-

tion in question quite possibly affects a single installation,

i.e., Delmarva, in the designated area south of U. S. Route

40, since Delmarva is the only plant operating fuel burning

equipment having a maximum rate of heat input equal to

or greater than 500,000,000 b.t.u. per hour. Getty could

—

| eas LRN Te a IR PU ATA EL AI RS ER RTS A Ol

Court of Appeals Opinion (9/12/72) A49

have raised the questions of economic hardship or lack of

compelling necessity in a section 307 hearing that it sought

to raise below. Its failure to do so cannot be attributed to

any lack of sufficient notice or hearing.

The close case alluded to by the district court presents

no problem, keeping in mind that in an enforcement pro-

ceeding, the burden of establishing a violation of the appli-

cable regulation would be carried by the Government.”

The admissions made by Delmarva, however, and the affi-

davit of intent submitted by its chief executive officer, make

any allusion to the hypothetical ‘‘close case’’ unnecessary.

We note further that, under 42 U. S. C. §1857h-5(c), the

review provisions of the Act provide for a much broader

and more meaningful judicial review than either the dis-

trict court or appellant recognized:

‘*(5)(c) In any judicial proceeding in which review is

sought of a determination under this chapter required

to be made on the record after notice and opportunity

for a hearing, if any party applies to the court for

leave to adduce additional evidence, and shows to the

satisfaction of the court that such additional evidence

is material and that there were reasonable grounds for

the failure to adduce such evidence in the proceeding

before the Administrator, the court may order such

additional evidence (and evidence in rebuttal thereof)

to be taken before the Administrator, in such manner

and upon such terms and conditions as to the court

may deem proper. The Administrator may modify his

findings as to the facts, or make new findings, by reason

of the additional evidence so taken and he shall file such

modified or new findings, and his recommendation, if

any, for the modification or setting aside of his original

13. See United States v. Bishop Processing Company, 423 F. 2d

469 (4th Cir. 1970), cert. den. 398 U. S. 904 (1970).

i titisedaeieeneeieninieniaeaiaaananmeael ELTA

SOREL GS

A50 Court of Appeals Opinion (9/12/72)

determination, with the return of such additional evi-

dence.’’

Getty has sought to litigate the merits of its variance

application on this appeal. It requested a postponement

of argument before WARC pending a judicial determina-

tion by either the Chancery Court or the Court of Appeals.

We decline to substitute our judgment for that of WARC.

There is no constitutional or statutory authority which

would allow us to make such a determination. The Clean

Air Act authorizes approval of a revision of an imple-

mentation plan by the Administrator, after adoption by the

state based upon reasonable notice and public hearings.

42 U. S. C. §1857e-5(a)(3). Getty attempts an end run

around the Act by seeking pre-enforcement judicial review

before WARC has had an opportunity to pass upon Getty’s

application for a variance, and before the Administrator

has had an opportunity to review any forthcoming state

14. While this section supports a holding that pre-enforcement

judicial review is available at least to the extent that a determina-

tion is made “under this chapter” on the record after notice and

opportunity for a hearing, the record before us does not persent a

challenge to the Administrator’s findings that Regulation VIII was

violated. See 42 U. S. C. § 1857c-8(a). Rather, the allegations pre-

sented in the district court and on appeal constitute a direct chal-

lenge to the necessity, reasonableness and constitutionality of Regu-

lation VIII. Regulation VIII received approval of the Administrator

as part of Delaware’s implementation plan. Section 1857h-5(b) (1)

provides that review of an Adminstrator’s approval be sought in

the court of appeals in the appropriate circuit. There is no dispute

in the record that the findings of the Administrator respecting his

determination of violations by Delmarva had occurred. Having

failed to seek review of the Administrator’s approval in a section

307 proceeding, it is foreclosed from doing so by the clear language

of 42 U. S. C. §1857h-5(b)(1). It would likewise be foreclosed

from raising these objections in a civil and criminal proceeding for

enforcement. 42 U. S. C. § 1857h-5(b) (2).

15. Under the EPA regulations, a state’s decision to defer the

applicability of any portion of the control strategy with respect to

a source “will be deemed a revision” of the applicable implementa-

tion plan. 40 CFR §51.32(f).

Court of Appeals Opinion (9/12/72) A51

action. And here lies the crux of Getty’s predicament:

having failed to appeal the Administrator’s approval of the

Delaware plan, and faced as it is with the EPA’s compli-

ance order, Getty is presented with the choice of either

compliance or breach, until such time as its application for

a variance is favorably considered.

The district court noted that when the issue concerns

timing of judicial review rather than the existence of said

review, the procedures which must be afforded to an indi-

vidual further depends upon the governmental interest in

summary enforcement. There can be no question that the

primary and secondary air quality standards serve sub-

stantial governmental interests—in the case of primary

standards, protection of the public health; in the case of

secondary standards—protection of the public welfare from

any known or anticipated adverse effects associated with

the presence of a specified air pollutant in the ambient air.

42 U.S. C. § 1857c-3.

The Administrator has a responsibility to see that a

state plan will meet the national standards. Because of

that responsibility, he has a vital interest in determining

whether a particular deferral will have the effect of pre-

venting attainment or maintenance of the national stand-

ard. 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 find

suitable technology which would enable it to comply do

not affect the Administrator’s duty of enforcement. Like-

wise, the conditions established for postponement of com-

pliance in 42 U. S. C. §1857c-5(f)(1) are not available to

Getty in any event.

Appellant’s efforts to establish the lack of necessity

for early compliance due to the existence of primary air

A52 Court of Appeals Opinion (9/12/72)

quality in Delaware must fail. Section 110 of the Clean Air

Act requires that state air implementation plans attain

primary standards. It does not preclude such standards

from being exceeded. Further, section 110(a) (2) (A) (i)

provides that standards be achieved as expeditiously as

practicable, but in no case later than 3 years from the date

of approval of such plan. Getty’s application for a vari-

ance envisions developing technology suitable for compli-

ance to be available by 1976. The Clean Air Act allows,

as an alternative to compliance with a secondary criterion,

the use of emission control devices which would have the

effect of achieving the same level of permissible emissions

that observance of criteria such as fuel composition would

achieve. The Act says nothing about deferring compliance

merely because such technology is not available. Getty

would have this Court make such a determination without

any adequate record before it, and in the absence of find-

ings by the Administrator pursuant to 42 U. S. C.

§1857c-5(f)(1), under which a postponement can be

granted.* Such a determination would be wholly improper,

premature, and a clear usurpation of the Administrator’s

responsibility.

Appellant’s remaining argument is that EPA’s failure

to file an environmental impact statement pursuant to

section 102(2)(c) of the National Environmental Policy

Act, 42 U. S. C. § 4832(2)(c), renders the Administrator’s

compliance order ultra vires. Even if we were to agree in

Getty’s premise that EPA is subject to the NEPA require-

15. In addition to good faith efforts at compliance and the ab-

sence of necessary or alternative technology, this section requires

the existence of alternative operating procedures and interim con-

trol measures to reduce the impact of the source on the public health,

and also that the continued operation of the source be essential to

national security or the public health and welfare. Application for

postponent under this section must be made by the Governor of the

state.

a RS DATE AE A RUS OE CAT OER EASY 0M Se OIE LM IT UNO IY Mie ADIL SIT a |

Court of Appeals Opinion (9/12/72) A53

ment,’® such an issue is properly raised in a Section 307

proceeding. To require an impact statement at the en-

forcement stage would do substantial harm to the Con-

gressional purpose of obtaining expeditious compliance

with primary and secondary air standards. Failure to

utilize the section 307 proceeding forecloses review in a

civil or criminal proceeding for enforcement. 42 U.S. C.

§ 1857h-5(b)(2). Furthermore, both EPA regulations and

the guidelines drafted by the Council on Environmental

Quality exempt regulatory activities from the impact state-

ment requirements."

Finally, the Administrator is given the responsibility

of making policy reviews under 42 U. S. C. § 1857h-7, annual

comprehensive economic cost studies under 42 U. S. C.

§ 1857j-1, and periodic reports to Congress under section

1857j-2. It is apparent that the Clean Air Act itself con-

tains sufficient provisions for the achievement for those

goals sought to be attained by NEPA.

We conclude that Getty’s belated effort to attack Reg-

ulation VIII in the guise of pre-enforcement review of

the compliance order is precluded by section 307 of the

Clean Air Act. This appeal is a paradigm of confession

and avoidance.

The case will be remanded to the district court with

directions to enter an order of dismissal for lack of

jarisdiction.

16. The cases cited to us by appellant are not persuasive that

the EPA is bound by NEPA. See Kalur v. Resor, 335 F. Supp.

1 (D. D. C. 1971) ; Environmental Defense Fund v. Hardin, 325

F. Supp. 1401 (D. D. C. 1971).

17. See EPA Regulation § 6.7, 37 F. R. 879; 36 F. R. 77.24-5.

A54 EPA Order (7/18/72)

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

Wasutxcrox, D. C.

Docker No. 293-113-72-02.

Ix THe Martres or

ALLIED CHEMICAL CORPORATION

Ciaymonrt, DeLaware

Proceepinc unper §113(a), Cuzax Am Act, as AMENDED

ORDER.

The following Oxper is issued this date pursuant to

Section 113(a)(1) of the Clean Air Act, as amended, 42

U. S. C. § 1857(c)-8(a)(1) (hereinafter referred to as the

** Act’’).

Wueneas, on May 26, 1972, the Administrator notified

the Allied Chemical Corporation (Allied) of a violation

of Section 2.1, Regulation [X, of the Delaware Water and

Air Resources Commission (a requirement of an ‘‘applica-

ble implementation plan’’ as that term is used in Section

113(a)(1) of the Act), in that Allied, since January 1,

1972, has been emitting sulfur dioxide in its tail gases in

quantities greater than those permitted by Table I of said .

regulation and in concentrations greater than 1000 parts

per million; and

Wuenreas, pursuant to Section 113(a)(4) of the Act,

opportunity to confer with representatives of the Environ-

mental Protection Agency was given to Allied and on June

12, 1972, a conference to discuss this violation was held at

the offices of Region III of the Environmental Protection

Agency ; and

EPA Order (7/18/72) ASS

Wuenzas, said violation has continued beyond the 30th

day after the date of the Administrator's notification; and

Wuensas, after review of the conference record and

a thorough investigation of all relevant facts, including

the seriousness of the violation and any good faith efforts

to comply, it has been determined that compliance with

said Section 2.1, Regulation IX, as hereinafter set forth,

is reasonable; it is hereby

OnpeRep.

1. That on and after September 15, 1973, Allied Chem-

ical Corporation, Claymont Works, shall comply with Sec-

tion 2.1, Regulation IX of the Delaware Water and Air

Resources Commission.

2. That prior to September 15, 1973, sulfur dioxide

emissions in the tail gases from the Allied Chemical Cor-

poration, Claymont Works, shall not exceed a concentration

of 3800 parts per million by volume and mass emissions

shall not exceed 250% of the rate allowable under Section

2.1, Regulation IX of the Delaware Water and Air Re-

sources Commission.

3. That on or before August 10, 1972, Allied shall sub-

mit to the Regional Administrator, Region III, Environ-

mental Protection Agency, a critical path construction

table for any emission control facility required for com-

pliance with paragraph 1. Based upon such table and

other relevant information, the Regional Administrator,

Region III, Environmental Protection Agency, shall estab-

lish a schedule requiring the completion of incremental

steps towards construction and installation of the emission

control facility by such dates as said Regional Administra-

tor determines are necessary to insure installation of the

facility in the time required by paragraph 1. Such sched-

—s

_—————————————————

A56 EPA Order (7/18/72)

ule, when issued by the Regional Administrator, shal] be-

come a part of this order and completion of each incre-

mental step shall be required on the date specified in such

schedule

4. That on or before October 10, 1972, and continuing

every two months thereafter, Allied shall submit to the

Regional Administrator, Region III, a written status re-

port as to progress in construction and installation of the

emission control facility. In addition, no later than 5 days

after the date specified for the completion of each incre-

mental step required pursuant to paragraph 3, Allied shall

certify to the Regional Administrator, Region III, whether

such step has been completed.

5. That commencing October 10, 1973, and continuing

each month thereafter until further order of the Environ-

mental Protection Agencr, Allied shall submit a report

to the Regional Administrator, Region III, indicating any

tail gas emissions for any period during the preceding

calendar month which exceeded the requirements set forth

in Section 2.1, Regulation IX of the Delaware Water and

Air Resources Commission or indicating that there were

no such excess emissions. The reports shall be based upon

a continuous record of tail gas sulfur dioxide content and

a copy of all records upon which the reports are based shall

be maintained until further order of the Environmental

Protection Agency ; provided, however, that copies of such

records shall be submitted together with the first «ix re-

ports required by this paragraph.

Date: July 18, 1972.

Joux Qvaar.es, for

William D. Ruckelshaus,

Administrator, Environmental

Protection Agency.

Letter (7/25/72) A57

(Letterhead of)

U.S. ENVIRONMENTAL PROTECTION AGENCY

REGION Il

6th & Walnut Sts., Philadelphia, Pennsylvania 19166

July 25, 1972

Mr. Thomas D. Kent

Corporate Counsel

Allied Chemical Corporation

P.O. Box 1057R

Morristown, New Jersey

Dear Mr. Kent:

Subject: Allied Chemical Corporation, Claymont, Delaware

Docket Number: 293-113-72-02

This is with reference to Paragraph 2 of the order

issued in the above-captioned matter. As I indicated to

Mr. Harry Wallum of your office by phone on Monday,

July 24, there was indeed a mistake made with respect to

the percentage of the rate allowable as incorporated in

Paragraph 2. That paragraph was iniended as an anti-

used was in fact intended to be the controlling figure. Accord-

ingly, with the concurrence and approval of appropriate

officials in the Office of the Administrator, Washington,

D.C., the order is hereby amended to change 250% to

380% so that Paragraph 2 of the order shal] now read

as follows:

That prior to September 15, 1973, sulfur dioxide

emissions in the tail gases from the Allied Chemical

Corporation, Claymont Works, shall not exceed a con-

centration of 3,800 parts per million by volume and

tactician

A58 Letter (7/25/72)

mass emissions shall not exceed 380% of the rate

allowable under Section 2.1, Regulation [X of the Dela-

ware Water and Air Resources Commission.

In all other respects, the order shall remain as issued.

I appreciate your cooperation in this matter and apologize

for any inconvenience caused by the above.

Sincererly,

Dona 8S. Kaun

Dona S. Kahn

Chief, Legal Branch

Enforcement Division

ee: Edward Reich

Jacob Hart

Mare Suffern

Ce ee fe Le

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.