Opposition Brief — Getty Oil Co. v. Ruckelshaus

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CITATIONS

Cases:

Automobile Parts & Accessories Association v.

Cr i Cr i ewienoee

Boddie v. Connecticut, 401 U.S. 371__________.

Bowles v. Willinghan, 321 U.S. 503__________-

Ewing v. Mytinger & Casselberry, 339 U.S. 594_

Goldberg v. Kelly, 397 U.S. 254. ______-______

Kennecott Copper Corp. v. Environmental Pro-

tection Agency, 462 F. 2d 846_____________-

Sniadach v. Family Finance Corp., 395 U.S.

White v. Johnson, 282 U.S. 367____________

Yakus v. United States 321 U.S. 414_________

(I)

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Statutes:

Clean Air Act of 1970, 84 Stat. 1676, 42 U.S.C.

1857 et seq.:

Section 109, 42 U.S.C. 1857¢-4________-

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

RENE GF ihe os ccecnsnncsdcncennsnie

Section 113 (a) (1), 42 U.S.C. 1857c-8(a)

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Section 307, 42 U.S.C. 1857h-5_ 9, 10, 11, 13, 14

Section 307 (b), 42 U.S.C. 1857h-5 (b) _ 2,5,8

National Environmental Policy Act of 1969, 83

Stat. 852, 853, Section 102 (2) (c), 42 U.S.C.

I sn hecaisten ctlk kha eae Aaah wee 3, 14

National Traffic and Motor Vehicle Safety

Act of 1966, 80 Stat. 718, 15 U.S.C. 1381_- 10

Gn the Supreme Court of the United States

OcToBER TERM, 1972

No. 72-673

Gerry Om Company (Eastern Operations), INc., A

DELAWARE CORPORATION, PETILIONER

Vv.

WituiamM D. RUCKELSHAUS, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the district court (Pet. App. A,

pp. 6-387) is reported at 342 F. Supp. 1006. The

opinion of the court of appeals (Pet. App. A, pp. 39-

53) is reported at 467 F. 2d 349.

JURISDICTION

The judgment of the court of appeals was entered

on September 12, 1972. The petition for a writ of

certiorari was filed on November 1, 1972. The juris-

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

1254(1).

(1)

ieee

2

QUESTION PRESENTED

Whether Section 307(b) of the Clean Air Act bars,

as untimely, judicial review of petitioner’s challenge

to an order issued by the Administrator of the En-

vironmental Protection Agency directing Delmarva

Power & Light Company to comply with a federally

approved state regulation banning the burning of

fuel which has a sulfur content in excess of 3.5 per-

cent by weight.

STATUTES INVOLVED

Section 307(b) of the Clean Air Act of 1970, 84

Stat. 1708, 42 U.S.C. 1857h-5(b), provides:

(1) A petition for review of action of the

Administrator in promulgating any _ national

primary or secondary ambient air quality stand-

ard, any emission standard under section 112,

any standard of performance under section 111,

any standard under section 202 (other than a

standard required to be prescribed under section

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

202(b) (5), any control or prohibition under sec-

tion 211, or any standard under section 231 may

be filed only in the United States Court of Ap-

peals for the District of Columbia. A petition

for review of the Administrator’s action in ap-

proving or promulgating any implementation

plan under section 110 or section 111(d) may be

filed only in the United States Court of Appeals

for the appropriate circuit. Any such petition

shall be filed within 30 days from the date of

such promulgation or approval, or after such

date if such petition is based solely on grounds

arising after such 30th day.

(2) Action of the Administrator with respect

to which review could have been obtained under

paragraph (1) shall not be subject to judicial

3

review in civil or criminal proceedings for

enforcement.

oa ~ * =

Section 102(2)(C) of the National Environmental

Policy Act of 1969, 83 Stat. 853, 42 U.S.C. 4332(2)(C),

is set forth at Pet. 7-8.

STATEMENT

The material facts are not disputed. Petitioner,

(ietty Oil Company (Eastern Operations), Inc., oper-

ates a erude oil refinery in Delaware City, New Castle

County, Delaware. One of the natural byproducts of

its refining operations is fluid petroleum coke, which

generally has a sulphur content of between 6 and 7

percent by weight. Pursuant to a contractual arrange-

ment with Delmarva Power & Light Company (“Del-

marva’’), petitioner, by conveyor, transfers this fluid

coke byproduct daily (a maximum of 1,500 tons per

day) to a nearby power station owned and operated

hy Delmarva, where it is burned to produce electricity

and steam for the refinery. If any electricity is left

over after the requirements of the refinery have been

met, it is sold by Delmarva to the public.

In September 1970, the Delaware Water and Air

Resources Commission held public hearings on pro-

posed air pollution regulations for the State of Dela-

ware. Among the regulations considered was one limit-

ing to 3.5 percent the sulphur content of fuel burned

by a certain size plant in the region where the Del-

marva power station is located. Petitioner and Del-

marva appeared at the hearings and argued against

adoption of this proposal. The Commission, however,

approved the regulation on October 13, 1970; it pro-

CROW PIES Beene re

4

vided that “after January 1, 1972, fuel having a sul-

phur content greater than three and five-tenths per-

cent (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 having a maximum rate of heat

input equal to or greater than 500,000,000 b.t.u. per

hour’’ (Regulation XV).

The Delmarva power plant is the only installation

in the specified area having the size equipment desig-

nated in the regulation, and thus alone must meet the

3.5 pereent limit. This compares, however, with a

one percent limit on sulphur content imposed by sepa-

rate regulation on the other facilities having fuel

burning equipment with smaller capacity (Pet. App.

A, p. 8).

Neither petitioner nor Delmarva contested the Com-

mission’s approval of the sulphur emission regulations

in the Delaware courts (see Pet. App. A, p. 8, n. 1).

They became part of the State’s implementation plan

for attainment and maintenance of primary ambient

air quality standards for sulphur dioxide, promulgated

by the Administrator of the Environmental Protection

Agency (‘‘EPA”) under the Clean Air Act, 42 U.S.C.

1857c-4, and were submitted to the Administrator for

federal approval. On August 4, 1971, the Administra-

tor approved the sulphur dioxide portion of the Dela-

ware implementation plan."

‘As pointed out by the district court (Pet. App. A, p. 8):

“While this approval received substantial publicity at the time

and presumably came to [petitioner's] attention shortly after

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

in the Federal Register until February 3, 1972.”

5

No objection to federal approval was raised by

petitioner, or anyone else, during the 30-day period

specified in Section 307(b)(1) of the Clean Air Act

as the time within which to challenge such a decision

by the Administrator. 42 U.S.C 1857h-5(b) (1). More

than a month after federal approval, on September 28,

1971, petitioner applied to the Secretary of the Dela-

ware Department of Natural Resources and Environ-

mental Control (hereafter the “State Secretary”)

for a ‘‘variance” from the January 1, 1972 effective

date of the 3.5 percent regulation. It based its appli-

cation on the claim that national primary air quality

standards for sulphur dioxide were already being met

in the New Castle County area, and thus Delmarva

could be allowed additional time to meet the State’s

sulphur emission requirement without endangering

publie health and welfare (Pet. App. A, p. 9). The

power station burned each month approximately

110,000,000 pounds of fluid coke having a sulphur con-

tent of 6.91 percent—almost twice the allowable rate.

On December 28, 1971, the State Secretary denied

the variance application. Contrary to petitioner’s

assertion, he determined that “compliance with the

national sulphur dioxide primary standard would be

achieved no earlier than late 1975 or early 1976”

(Pet. App. A, p. 42, n. 6), if Delmarva were permitted

to continue burning Getty’s fluid coke byproduct.

Such permission, the State Secretary concluded, “was

precluded by the Clean Air Act and federal regula-

tions promulgated thereunder” (¢bid.).

Petitioner promptly appealed the State Secretary’s

denial to the Delaware Water and Air Resources Com-

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6

mission (‘‘WARC”) ; at the same time it sought in the

Delaware Chancery Court a temporary restraining

order against enforcement of the 3.5 percent sulphur

emission regulation by the State Secretary while its

appeal to WARC was pending. The restraining order

was granted on December 30, 1971 (Pet. App. A, p.

42).

On January 1, 1972, the Delaware sulphur dioxide

regulations became effective. Six weeks later, EPA

requested and received from Delmarva a statement

of the sulphur content of fuel burned by its power

station during January; similar statements were sub-

sequently furnished for the months of February and

March. On March 6, 1972, the Administrator advised

Delmarva that it was in violation of the federally

approved regulation limiting the content of sulphur

by weight to 3.5 percent. At the request of both Del-

marva and petitioner, a conference with representa-

tives of EPA was held on March 20, 1972, to give the

companies an opportunity to be heard. 42 U.S.C.

1857e-8(a) (4). Following that conference, it was

determined that a violation of the regulation existed

and had continued for more than 30 days after the

initial notice thereof. On April 17, 1972, the Adminis-

trator, pursuant to his authority under Section 1§3

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

(a)(1), ordered Delmarva to comply with the 3.5

percent sulphur requirement by May 1, 1972 (Pet.

App. A, pp. 43-44, n. 10).

* Thereafter, petitioner wrote WARC and requested that ac-

tion on its appeal be deferred pending the outcome of litiga-

tion in the federal and state courts. No further action has been

taken by WARC (Pet. App. A, p. 42, n. 7).

7

Petitioner then commenced the present suit in the

United States District Court for the District of Dela-

ware on April 21, 1972, seeking preliminary and per-

manent injunctive relief and a temporary restraining

order staying the effect of the Administrator’s com-

plianee order. Delmarva did not join in the suit; it

filed an affidavit with the court expressing its intent

to comply with the Administrator’s order “unless re-

lieved of compliance by an order of this Court pursuant

to the application of Getty Eastern,”’ and stating that it

would “not run the risk of incurring criminal fines

and jail sentences which might be imposed if it did not

comply” (Pet. App. A, p. 11). Compliance would re-

quire the use of different fuel at the power station,

the cost of which would be passed on to petitioner and

Delmarva’s other public customers. As a result, peti-

tioner no longer would be able to receive its electric

power from Delmarva esseutially free of costs ; instead,

it estimates that the cost would be approximately

$10,000 per day (Pet. 11).

The district court held that this estimated economic

burden gave petitioner standing to challenge the Ad-

ministrator’s action (Pet. App. A, p. 13, n. 4), and

that review of the issues presented was not precluded

by the Clean Air Act (id. at pp. 18-19). Petitioner was

denied all relief, however, since the district court con-

sidered “the likelihood of Getty’s success on any of

[its] arguments [on the merits] very slim” (7d. at

p. 22).

The court of appeals disagreed with the district

court on the jurisdictional question. In its view, pe-

titioner’s “‘belated effort to attack Regulation VIII

8

[renumbered from Regulation XV] in the guise of

pre-enforcement review of the compliance order is

precluded by section 307 of the Clean Air Act” (Pet.

App. A, p. 53). “This appeal,” it concluded (tbid.),

‘Sis a paradigm of confession and avoidance.” The

case was remanded to the district court with instruc-

tions to dismiss for lack of jurisdiction.

ARGUMENT

The decision of the court of appeals is correct and

does not warrant review by this Court. Petitioner rec-

ognizes that Section 307(b)(1) of the Clean Air Act

precludes it from making a direct attack in the fed-

eral courts on the questioned sulphur emission regu-

lation more than 30 days after the regulation receives

EPA approval.’ It seeks to avoid this provision, how-

ever, on the ground that the present suit is a chal-

lenge, not to the regulation per se, but to the regula-

tion as applied to Delmarva under the Administra-

tor’s compliance order (Pet. App. A, p. 12).* But this

3 Section 307(b)(1), 42 U.S.C. 1857h-5(b) (1), provides for

review of the Administrator’s approval of a state implementa-

tion plan under section 110 of the Act only by filing a petition

“in the United States Court of Appeals for the appropriate

circuit * * * within 30 days from the date of such * * * ap-

proval * * *.”

* While petitioner may well have “standing” to challenge the

validity of the regulation in a Section 307 proceeding, we do not

believe it follows that petitioner also has “standing” to object

to a compliance order directed at Delmarva. It is simply in-

accurate for petitioner to claim that é¢ will be subjected to “the

imposition of criminal penalties if its challenge [here] fails

* * * (Pet. 15). The “standing” question need not be resolved

in this case, however, since the federal courts have jurisdiction

to decide the issues presented only in accordance with the pro-

cedure prescribed by Section 307.

9

argument conveniently ignores the fact that the 3.5

percent limitation on sulphur content imposed by the

State of Delaware is not generally applicable to a

mumber of facilities. It affects only the Delmarva

power station, and in effect already gives that facility

a special “variance” from the general one percent

limitation on sulphur content that applies to the other

fuel burning plants in the State (see p. 4, supra).

1. Petitioner contends that the Administrator’s or-

der to comply with the regulation by May 1, 1972, is

unreasonable and constitutes an abuse of discretion.

Its position is grounded on a claim of extreme eco-

nomic hardship, and on the assertion that compliance

by that date is unnecessary because the national pri-

mary air quality standards have already been achieved

in New Castle County. But these are arguments per-

taining to the validity of the sulphur dioxide regula-

tion itself, which both in its application and effect

differs from the compliance order only in that it sets

an earlier date, January 1, 1972, for meeting the 3.9

percent requirement. As pointed out by the court be-

low, petitioner has raised no issues in this suit which

could not properly have been raised in a timely Sec-

tion 307 proceeding (Pet. App. A, pp. 46, 48-49).

There is no factual dispute here regarding the Ad-

ministrator’s issuance of the compliance order; the

Delmarva power station concededly continues to burn

petitioner’s fuel having almost twice the allowable

rate of sulphur content.*

‘This is plainly not the hypothetical “close case” to which

the district court made reference (Pet. App. A, p. 19). Nor

does it follow from the decision below that “where there is an

honest difference of view as to whether a particular establish-

oC INE NIA rts

10

In these circumstances, petitioner, having failed to

make a timely objection in the court of appeals to

a regulation pertaining only to its supplier of elec-

trie energy, cannot thereafter encourage its supplier

openly to flout that regulation and then attack its

validity “in the guise of pre-enforcement review” (Pet.

App. A, p. 53) when Delmarva is ordered to comply.

This is precisely the type of delay-tactic that Congress

sought to prevent in Section 307 by designating the

United States Courts of Appeals as the exclusive

forums for judicial review of challenges such as the

one raised here, and by limiting access to the appellate

courts to 30 days from the date of federal approval

of the contested regulation. See Kennecott Copper

Corp. v. Environmental Protection Agency, 462 F. 2d

846, 849 (C.A.D.C.).°

ment is or is not in compliance with an applicable regulation”

(‘bid.), pre-enforcement judicial review would necessarily be

unavailable. We need not speculate here, however, on the extent

of judicial review in such hypothetical circumstances. For, in

this case, as the court of appeals noted (Pet. App. A, p. 50, n.

14), “the allegations presented in the district court and on

appeal constitute a direct challenge to the necessity, reasonable-

ness and constitutionality of Regulation VIII.”

® Congress has chosen similar procedural techniques in other

regulatory fields to accomplish the same objective. The National

Traffic and Motor Vehicle Safety Act of 1966, 80 Stat. 718, 15

U.S.C. 1381, provides for review of safety standards in the

courts of appeals within 60 days of promulgation. Automobile

Parts & Accessories Association vy. Boyd, 407 F. 2d 350

(C.A.D.C.). A 60-day period for testing the validity of price

control orders was gfitrmed in Vakus v. United States, 321 U.S.

414, where defendants were precluded from raising the inva-

lidity of the orders in later criminal prosecutions. And compare

White v. Johnson, 282 U.S. 367, where a party’s attempt to

raise constitutional issues was rejected because of his failure

to appeal administrative action to the court of appeals as the

statute required.

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4

11

2. It will, of course, be a rare case when enforce-

ment of an anti-pollution regulation does not impose

economie burdens on those who must meet the clean

air requirements. But the cost of compliance is plainly

a matter for consideration in assessing the Adminis-

trator’s approval of the state regulation in accordance

with the review procedure prescribed by Section 307,

especially where, as here, the regulation affects but

one facility. The fact that petitioner will henceforth

be deprived of free electric power and must, as its

competitors are required to do, pay the going rate

for fuel having an acceptable sulphur content, pro-

vides no basis for allowing it to raise at this late

date an objection to the compliance order on the basis

of an alleged economic burden that could have been

fully considered in Section 307 proceedings. Indeed,

even on the merits, as the district court accurately

observed (Pet. App. A, p. 36), petitioner’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.” *

*The district court also pointed out (Pet. App. A, pp.

27-28): “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. [Petitioner] does not suggest that

compliance with the regulation on May 1, 1972 would impose

any greater or different burden upon it than compliance three

months from now. Its argument 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 probably be 1976. This is obviously

not the type of consideration which Congress meant the Ad-

ministrator to consider in setting a compliance date under

Section 113(b) (4).”

Se ae

1S IOI a So a a a a MLLER ini RED LORE REE DO

12

Similarly, the claim that the 3.5 percent limitation is

unnecessary because New Castle County already meets

national primary air quality standards is an argument

that should have been made in a Section 307 proceed-

ing. Both ths State of Delaware and the federal gov-

ernment have determined that the regulation is essen-

tial to meet the clean air objectives of the federal stat-

ute, and that determination was explicitly reaffirmed

by the State Secretary in denying petitioner’s applica- ,

tion for a “variance.” Petitioner has failed to suggest

any reason why it should be permitted to continue

violating an essential part of the State implementation

plan so it can litigate a factual question that it failed to

raise at the proper time (see Pet. App. A, pp. 51-52).

3. Nor is there substance to petitioner’s claim that

the decision below amounts to a deprivation of due

process. As the court of appeals stated (Pet. App. A,

p. 47): “A review of the tangled procedural history

preceding [petitioner’s] institution of this suit con-

vinces us that due process has been satisfied.” After

briefly summarizing the events leading up to the

present suit, the court below added (Pet. App. A, p.

48), “[i]n light of the above, [petitioner’s] protesta-

tions that the doctrines of ripeness and justiciability

would have foreclosed it from obtaining meaningful

review are frivolous.’’ These conclusions are fully sup-

ported by the record.°

8 Petitioner argued below that enforcement of the regulation

prior to a determination by WARC of its variance application

will deny it procedural due process. As the district court pointed

out, however, in rejecting this contention (Pet. App. A, pp. 25-

26) : “What [petitioner and Delmarva] are now trying to do in

the variance proceeding is to persuade the Commission that a

all NASAL SRE ANON IR TAO dint . “ nenetdin )

"

13

Moreover, it is well established that due process does

not require that identical procedural rights be af-

forded with respect to every government action that

deprives an individual of a property interest. See

Ewing v. Mytinger & Casselberry, 339 U.S. 594, 599,

As pointed out by the district court below (Pet. App.

A, p. 32), “the scope and nature of the procedures de-

manded are dependent upon a balancing of the precise

nature of the governmental function involved and the

private interests affected by the govermental action.”

See Boddie v. Connecticut, 401 U.S. 371, 378; Gold-

berg v. Kelly, 397 U.S. 254; Bowles vy. Willingham,

321 U.S. 503, 520-521. Where, as here, there is a valid

public interest to be protected—1.e., the achievement,

“as expeditiously as practicable” (42 U.S.C. 1857c-5

(a)(2)(A)), of national primary ambient air quality

standards to protect public health—this Court has sus-

tained in other contexts summary enforcement pro-

cedures by the administrative agency involved against

a due process challenge. Compare Sniadach v. Family

Finance Corp, 395 U.S. 337; Boddie v. Connecticut,

supra. Application of that principle is especially ap-

propriate in the present case, both because of the

availability of the procedure prescribed by Section

307 (if timely invoked) for review of the regulations

better rule as applied to their situation would not require 3.5%

until some later date. [They] may or may not be successful in

this effort and the required further effort to persuade the Ad-

ministrator that such a rule would not prevent attainment of

the national standard within the pertinent time period. But the

Constitution does not require that they be excused in the mean-

while from complying with the regulation.” The court of ap-

peals agreed (Pet. App. A, pp. 50-51).

a Sei REHEN AMOLN PLISLONLILIEA SE LELLILD ORAL E ETD

14

(see cases cited and discussed in note 6, supra) and be-

cause, as the district court pointed out below (Pet.

App. A, p. 36), “[a] holding creating a constitutional

procedural due process right to pre-enforcement judi-

cial review would permit any person to delay enforce-

ment by raising even a frivolous challenge to the [Ad-

ministrator’s] determination.” *

For the reasons stated herein, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

Erwix N. Griswo1p,

Solicitor General.

Kent FRizze.1,

Assistant Attorney General.

Epmunp B. Cruark,

Jacgues B. GELIN,

Attorneys.

DecemBer 1972.

® Petitioner's additional claim concerning the failure of the

EPA Administrator to file an environmental impact statement

in connection with his approval of the Delaware sulphur di-

oxide regulation is also foreclosed by his failure to raise the

issue in a Section 307 proceeding. In any event, both the dis-

trict court (Pet. App. A, pp. 28-31) and the court of appeals

(id. at pp. 52-53) correctly ruled that Congress did not intend

the impact statement requirements to apply to a determina-

tion by the EPA Administrator concerning federal approval or

disapproval of all or part of a state implementation plan. As

pointed out by the district court (fd. at 31), “to require the in-

teragency consultation and impact statement stipulated by the

[National Environmental Policy Act] would seriously and un-

necessarily impede effective enforcement of the Clean Air Act

and similar federal regulatory programs.”

© S COVERWE HT PRINTING OFFICE TOT?