# Petition for Writ of Certiorari — Getty Oil Co. v. Ruckelshaus > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1620%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 409 U.S. 1125 ## Text FILE COPY | fFrsts4 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 : ee Al 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.’’ Pa Ad 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 (C) violates section 1857c-6(e) or section 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]— a oo gene (C) inelude in every recommendation or report on 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. aT Ce 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, E ‘ . 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, v. 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 ih IE 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, v. 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, v. 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 E 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 ra a 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 iii ke iy oe He ane at “g aie! jis: i resk i ) Hn ah ages | A . : Feat iere. jl : fie x Fe i 3 + 7 are He fi eh HEA! DC Law, ; 1941 ). recent , 92 v ) 0,000 this . 24 942 J. S. 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. er 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 a 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“ | & 3 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]— (C) inelude in every recommendation or report on 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 $ : g 3 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 | SF 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 v. 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 it i bi F3 8 Fs rs tl i the District of Columbia. A peti- or in aes ees Tae of this tithe may be filed only Spey ia: be within 30 days from the | i i : ey f 4 i af d F 26 eee CONE ee oe ae error a ee oo ee Court of Appeals Opinion (9/12/72) Ah 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 prese [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1620%3A1. Public record. Not legal advice.