Petition for Writ of Certiorari — West Penn Power Co. v. Train

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SUPREME COURT |) % | Supreme Court, U. Se

ee eS

In THE

Supreme Court of the United States °°"

OcTOBER TERM, 1975 | MICHAEL RODAX, J8..CLEI

asahins e

no. 5-974

WEST PENN POWER COMPANY,

a corporation,

Petitioner,

RUSSELL TRAIN, Administrator of the Environmental

Protection Agency of the United States of America,

MAURICE K. GODDARD, individually and as Secretary

of the Department of Environmental Resources and

DEPARTMENT OF ENVIRONMENTAL RESOURCES

of the Commonwealth of Pennsylvania,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Respectfully submitted,

HAROLD R. SCHMIDT

LAWRENCE A. DEMASE

Ninth Floor, Oliver Building

Pittsburgh, Pennsylvania 15222

AND

MICHAEL G. KUSHNICK

919 Eighteenth Street

Washington, D.C. 20006

Counsel for Petitioner,

West Penn Power Company

Of Counsel:

FREDERICK W. STEINBERG

AND

ROSE, SCHMIDT AND DIXON

Ninth Floor Oliver Building

Pittsburgh, Pennsylvania 15222

AND

ROSE AND KUSHNICK

919 Eighteenth Street

Washington, D.C. 20006

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

A SAG REICE HERR AIRS HTB TELS A MRT ACNE! SAD OOP AAI A RIAL ORI AE I ANN EN nee TR URES —

BLEED THROUGH

TABLE OF CONTENTS

PAGE

ET ANE PERLE EER Sits MMOD 1

RI AME ie Ne OMS CTEM MNS, OPE 1

Qrsemtioms Prememted ....................cccccccsccsccsccsscsecsssscceees 2

Statutory and Constitutional Provisions Involved... 4

Statement Of The Case ....0...............0cccccccecceceeeeeeeeeees 7

Reasons For Granting The Writ ......00..000000000000000.. 11

I. Review Of The Decision Below By This He. -

orable Court Is Necessary To Clarify Federal-

State Relationships Under The Clean Air Act. 11

II. Review Of The Decision Below Is Necessary

To Resolve Its Conflict With The Decisions Of

Other Courts Of Appeals On The Question of

Whether The Administrative Procedure Act

Provides An Independent Basis For Federal

Subject Matter Jurisdiction. .........000000000000000.. 12

Ill. Review Of The Decision Below Is Necessary

To Resolve Its Conflict With The Decisions Of

Other Courts Of Appeals On The Question Of

Whether Agency Action Which Is Unlawful

Can Be Discretionary. ......00...0.00.000.0ccecceeseeeeeees 15

IV. The Holding Below That Issuance Of A Notice

Of Violation Under The Clean Air Act Is Not

“Final Agency Action” Subject To Review

Under The Administrative Procedure Act

Misconstrues And Misapplies Controlling Au-

thority Of This Honorable Court And Raises

Significant And Recurring Problems Involv-

ing Federal Jurisdiction. ...........0..0000. cece. 17

V. The Holding Below Renders The Clean Air

Act Unconstitutional Because It Denies Peti-

tioner The Opportunity To Defend Itself

Against Prima Facie Illegal And Unwarranted

re I RCE hee OLENA 20

SN cotsb cit Beeccacietauee eatass aus aa se cen k 22

Appendix A, Opinions of the United States Court of

Appeals for the Third Circuit 0000000000000. la

Appendix B, Opinion of the District Court for the

Western District of Pennsylvania ........................ 34a

POOR COPY

Aa Na ll PaO ics SIS Beg ad OE Sk

Table of Authorities.

TABLE OF AUTHORITIES

CASES: PAGE

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

ee sacinsilccosemcas 18

Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973),

cert. denied, 414 U.S. 1146 (1974) 20. 13, 14

Arizona State Department of Public Welfare v. De-

partment of Health, Education & Welfare, 449

F.2d 456 (9th Cir. 1971), cert. denied, 405 U.S.

chou assis cwoceuv couse 13

Armstrong v. Manzo, 380 U.S. 545, 552 (1965) .... ... 20

Bradley v. Weinberger, 483 F.2d 410 (1st Cir.1973) 13

Bramblett v. Desobry, 490 F.2d 405 (6th Cir. 1974),

cert. denied, 419 U.S. 872 (1974) 0.0.0.0... 13

Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970) ......... 14

Brennan v. Udall, 379 F.2d 803 (10th Cir. 1967) ..... 14

Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966) 14

Charles River Park “A”, Inc. v. Department of

Housing & Urban Development, 519 F.2d 935

ee SD ean. ctasmas aicke cet ea cess 13

Charlton v. United States, 412 F.2d 390 (3d Cir.

nic wsatb vice 12

Citizens To Preserve Overton Park, Inc. v. Volpe,

Oe snc cescemeenscsveses 16

City of Dallas, Texas v. Rentzel, 172 F.2d 122 (5th

Cir. 1949), (per curiam), cert denied, 338 U.S.

i adassivee tvuvs 13

Columbia Broadcasting System, Inc. v. United

States, 316 U.S. 407, 417 (1942) oo... 17,18

Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972)... 14

Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th

sl ata a RS a 14

BLEED THROUGH

ili

Table of Authorities.

PAGE

Duquesne Light Co. v. Environmental Protection

Agency, 522 F.2d 1186 (3d Cir. 1975) ................ 8

Elton Orchards, Inc. v. Brennan, 508 F.2d 493 (1st

RIES diet ch a i eat is een 13

Eskra v. Morton, 524 F.2d 9 (7th Cir. 1975) ............ 13

Flast v. Cohen, 392 U.S. 83 (1968) ............0000000000000.... 14

Freeman v. Brown, 342 F.2d 205 (5th Cir. 1965) ...... 14

Frozen Food Express v. United States, 351 U.S. 40

| SE AR ee AR OIE ne Serene eevee 18

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

1972), cert. denied, 409 U.S. 1125 (1973) .......... 9,12

Grannis v. Ordean, 234 U.S. 385, 394 (1914) .............. 20

Littell v. Morton, 445 F.2d 1207 (4th Cir. 1971) ...... 14

Local 542, International Union of Operating Engi-

neers, AFL-CIO v. NLRB, 328 F.2d 850 (3d Cir.

1964), cert. denied, 379 U.S. 826 (1964) ............ 13

Maddox v. Richardson, 464 F.2d 617 (6th Cir. 14372) 14

McEachern v. United States, 321 F.2d 31 (4th Cir.

AR ta RI ts je i Neenah ets Sint ape 14

Moore-McCormack Lines, Inc. v. United States, 413

pf > 14

Mullane v. Central Hanover Bank and Trust Co., 339

MP MIE, IID ovcsivseuisecoscseesoascsvavsadscvupconasecaveas 20

Natural Resources Defense Council, Inc. v. Train,

G20 Fimo Gee CEC. Cap. BOT) ..........0c00c06.0000...555.. 13

Ness Investment Corp. v. United States Department

of Agriculture, Forest Service, 512 F.2d 706,

BAM CHE Cs BGI oo vivscviccsiccceccsscsscccsssscecoessevness 15

Oklahoma Operating Co. v. Love 252 U.S. 331

a HERR neh AREER act es Heron ane eile oie 21

Ove Gustavsson Contracting Co. v. Floete, 278 F.2d

912 (2d Cir. 1960), cert. denied, 364 U.S. 894

(RIOR ge ints ig Geto i een ar oier ens Picea 13

POOR COPY

Table of Authorities.

PAGE

Ortego v. Weinberger, 516 F.2d 1005 (5th Cir. 1975) 13

Pickus v. United States Board of Parole, 507 F.2d

Re er Ns Noss icv ceva cedecdhicedsoneddcsevasecaccss 13

Ruiz-Olan v. Secretary, Department of Health, Edu-

cation & Welfare, 511 F.2d 1056 (1st Cir.1975) 13

Rusk v. Cort, 369 U.S. 367 (1962) ooo. 14

Sanders v. Weinberger, 522 F.2d 1167 (7th Cir.

TERRE 6 TT pe epee eee tetrad 13

Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859

BP Ci Mo EE nic ceecnrncsasecivanosicesmvonscavedsoxaesasae 15

School Board of Broward County, Florida, In Re,

475 F.2d 1117 (5th Cir. 1973) ooo. 13

Toilet Goods Ass’n. v. Gardner, 369 F.2d 677 (2d

Cir. 1966), aff’d., 387 U.S. 167 (1967) ..0............. 13

Train v. NRDC, Inc., 43 U.S.L.W. 4467 (U.S. April

Be eons nies eee 11, 12

Twin Cities Chippewa Tribal Council v. Minnesota

Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967) .... 13

United States v. Carolina Freight Carriers Corp.,

Bae Nice. WE GR COED annie cscccancscsecccatnensies 15

United States v. Storer Broadcasting Co., 351 U.S.

BE IN isso sey occtnie rice nes aoa eas lees 18

United States Steel Corp. v. Fri, 364 F.Supp. 1013

ROI MI I coc hccictescccsenccs\uhnsiasctiaenouiid auuicids

Young, Ex Parte, 209 U.S. 123, 146-7 (1908) ............ 21

Young v. United States, 498 F.2d 1211 (5th Cir.ff

MRRP REAR AOED Arias Henan teats CNN 1d MeN cae 13

Zimmerman v. United States, 422 F.2d 326 (3d Cir.

(a PIRA DIED RAGA Ap et ecetreteh toe Se pry ever em Ae LO age 12

nmorcoeon rTwdpbomaiit

Table of Authorities.

PAGE

CONSTITUTION :

United States Constitution, Amendment V ................ 6

STATUTES:

Administrative Agency Law, Act of June 4, 1945,

P.L. 1388, as amended, 71 P.S. §1710.1 et seq..... 9

Administrative Code of 1929, Act of April 9, 1929,

P.L. 177, as amended, 71 P.S. §510-1 et seq. ........ g

Administrative Procedure Act,

5 USC. § 701 ef sed. ....................0.. 2, 3, 4, 9, 10, 16

ee ESSERE Waa eresecan me Rober ater) 4,17

Re RE ei een we cient ele 4,12

Ra a IEEE eines bette tepnere em 17

Clean Air Act Amendments of 1970,

BS UBC. § BT OE OOD. nc cccccises ccc 2, 7, 11

$ 1857c-8, (Section 113) ................ 4,5,6,9

$ 1857c-8(a) (1), (Section 113(a) )

NN iarudvastek ca morhcunaaasece manvenstsutesece te

§$ 1857h-2, (Section 304) ....0.0.000.. 9

S$ 1857h-5, (Section 307) ................ 2,9, 10

ee as I Sica phim teastecectaeinnscncicnns 1

ES Re error 2, 3, 6, 9, 10, 16

en a se, Ws 9

I See a eae a dic Nawanradecuseusaes 9

REGULATIONS:

Pennsy!vania Bulletin, April 28, 1973, pg. 808 ........ 8

25 Pennsylvania Code S$ 127-148 0000.00... 7

Ad ARE Loreen Reon? 8

DHMD CHmHDYV

The Petitioner, West Penn Power Company, respect-

fully prays that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of Ap-

peals for the Third Circuit entered in this case on July

16, 1975.

OPINIONS BELOW

The opinions of the United States Court of Appeals

for the Third Circuit (majority and dissenting), re-

ported in 522 F.2d 302, are printed in Appendix A. The

opinion of the United States District Court for the West-

ern District of Pennsylvania, reported at 378 F.Supp.

941, is printed in Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals

for the Third Circuit was entered on July 16, 1975. A

timely petition for rehearing en banc was denied on Au-

gust 15, 1975. On October 31, 1975, this Honorable Court

granted West Penn’s Application For Extension Of Time

In Which To File Petition For Writ Of Certiorari to and

including January 12, 1976. This Court's jurisdiction is

invoked under 28 U.S.C. § 1254(1).

Ss Reet ~*

Questions Presented.

QUESTIONS PRESENTED

1. Where substantive rights are involved which af-

fect the public and an electric utility’s ability to continue

to provide efficient and reliable electric service, is the

issuance of a notice of violation “final agency action”

within the meaning of the Administrative Procedure Act,

5 U.S.C. $ 701 et seq., and is it ever within the unfettered

discretion of the Administrator of the Environmental

Protection Agency to ignore valid provisions of a state

implementation plan which he has approved in accord-

ance with provisions of the Clean Air Act, 42 U.S.C.

§ 1857, et seq. and valid state action taken pursuant to

an approved state implementation plan?

2. Does the Administrative Procedure Act, 5

U.S.C. § 701 et seq., supply an independent basis for

federal subject matter jurisdiction to review the issu-

ance of a notice of violation by the Administrator of the

Environmental Protection Agency pursuant to the Clean

Air Act, 42 U.S.C. § 1857 et seq., when the issuance of

the notice of violation is alleged to be invalid because it

conflicts with provisions of a state implementation plan

approved by the Administrator?

3. Can an informal administrative conference with

the Administrator of the Environmental Protection

Agency and/or defense of a federal enforcement action

satisfy Petitioner’s right under the Due Process Clause

to a full and adequate hearing at a meaningful time to

challenge the issuance under the Clean Air Act, 42 U.S.C.

$ 1857, et seq. of an invalid notice of violation?

4. Where the District Court held that Petitioner’s

claims were barred by Section 307 of the Clean Air Act,

42 U.S.C. § 1857h-5, but did not expressly address the

BA ecenr THR Oli

Questions Presented.

existence of jurisdiction under 28 U.S.C. § 1337, should

Petitioner’s argument to the Court of Appeals that Sec-

tion 307 does not preclude judicial review, particularly

under the Administrative Procedure Act, 5 U.S.C. § 701

et seq., be construed as an abandonment of its claim of

federal subject matter jurisdiction pursuant to 28 U.S.C.

§ 1337?

POOR CHODY

Statutory and Constitutional Provisions Involved.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Pertinent provisions of the Administrative Proce-

dure Act, 5 U.S.C. § 701 et seq., are as follows:

“S$ 701. Application; definitions

(a) This chapter applies, according to the pro-

visions thereof, except to the extent that—

(1) statutes preclude judicic! review; or

(2) agency action is committed to agency

discretion by law.

“S$ 702. Right of review

A person suffering legal wrong because of

agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant stat- |

ute, is entitled to judicial review thereof.

“Ss 704. Actions reviewable

“Agency action made reviewable by statute and

final agency action for which there is no other ade-

quate remedy in a court are subject to judicial re-

view... .”

Section 113 of the Clean Air Act, 42 U.S.C. s 1857c-8,

provides in pertinent part:

“(a)(1) Whenever, on the basis of any in-

formation available to him, the Administrator finds

that any person is in violation of any requirement

of an applicable implementation plan, the Adminis-

trator shall notify the person in violation of the plan

and the State in which the plan applies of such find-

ing. If such violation extends beyond the 30th day

BLEED THROUGH

Statutory and Constitutional Provisions Involved.

after the date of the Administrator’s notification,

the Administrator may issue an order requiring

such person to comply with the requirements of such

plan or he may bring a civil action in accordance

with subsection (b) of this section.

* * *

“(b) The Administrator may commence a

civil action for appropriate relief, including a perma-

nent or temporary injunction, whenever any per-

son—

(1) violates or fails or refuses to comply

with any order issued under subsection (a) of

this section; or

= % +

(B) more than 30 days after having been

notified by the Administrator under subsec-

tion (a)(1) of this section of a finding that

such person is violating such requirement; or

* * >

Any action under this subsection may be brought in

the district court of the United States for the dis-

trict in which the defendant is located or resides or

is doing business, and such court shall have juris-

diction to restrain such violation and to require

compliance. Notice of the commencement of such

action shall be given to the appropriate State air

pollution control agency.

“(c)(1) Any person who knowingly—

(A) violates any requirement of an appli-

cable implementation plan... (ii) more than

30 days after having been notified by the Aa-

POOR COPY

a CERI ala, na a mL weet. |

Statutory and Constitutional Provisions Involved.

ministrator under subsection (a) (1) of this

section that such person is violating such re-

quirement, or

(B) violates or fails or refuses to comply

with any order issued by the Administrator

under subsection (a) of this section, .. . 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 convic-

tion is for a violation committed after the first

conviction of such person under this paragraph,

punishment shall be by a fine of not more than

$50,000 per day of violation, or by imprison-

ment for not more than two years, or by both.

= = e99

28 U.S.C. § 1337 provides that:

“The district courts shall have original jurisdic-

tion of any civil action or proceeding arising under

any Act of Congress regulating commerce or pro-

tecting trade and commerce against restraints and

monopolies.”

The Fifth Amendment to the United States Consti-

tution states that:

“No person shall . . . be deprived of life, liberty

or property, without due process of law.”

BLEED THROUGH

Statement of the Case.

STATEMENT OF THE CASE

Petitioner is a Pennsylvania corporation and public

utility, having its principal place of business in Greens-

burg, Pennsylvania. Petitioner provides electric utility

service for approximately 470,000 customers in the

southwestern and north central portions of the Com-

monwealth of Pennsylvania. Among Petitioner’s facili-

ties is the Mitchell Power Station, Boiler No. 33, a coal-

fired electric generating facility in Washington County,

Pennsylvania.

On May 31, 1972, the Respondent Administrator of

the Environmental Protection Agency (hereinafter “Ad-

ministrator”) approved Pennsylvania’s regulations* for

the attainment of national primary ambient air quality

standards within the Commonwealth (hereinafter “im-

plementation plan”). Said implementation plan was sub-

mitted to and approved by the Administrator in accord-

ance with the provisions of the Clean Air Act, 42 U.S.C.

‘1857 et seq. Included in the approved implementation

plan were the regulations of the Respondent Pennsyl-

vania Department of Environmental Resources (herein-

after “DER”) pertaining to the control of sulfur oxide

emissions from power plants. Pennsylvania’s emission

regulations* ~ were immediately applicable. However, in

*25 Pa. Code §$127-143. In addition to emission limi-

tations, Pennsylvania’s regulations contain the proce-

dure for obtaining variances and provide that the filing

of a petition for variance is to automatically stay prose-

cution for violation of emission limitations for a specified

period of time.

**The sulfur oxide emission standards applicable to

sources in the Monongahela Valley Air Basin where

Petitioner’s Boiler No. 33 is located are extremely strin-

gent. For that reason, inter alia, the Administrator’s ap-

proval of those standards as they apply to other power

POOR COPY

14 NALS CO seb ie et Diana,

SOR BIT Wren

Statement of the Case.

order to enable non-complying sources to avoid being

held in violation of emission regulations, Pennsylvania’s

_. implementation plan also provided for variances from

DER regulations.

On September 15, 1972, Petitioner applied to the

DER for a variance for Boiler No. 33 of its Mitchell

Power Station from, inter alia, the sulfur compound

emission limitations contained in the Pennsylvania im-

plementation plan.

On September 13, 1973, despite the pendency of

Petitioner’s variance application which, as provided by

the implementation plan, operated as an automatic stay

of prosecution,* the Administrator issued to Petitioner

a notice of violation pursuant to Section 113(a) (1) of

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

serted, inter alia, that Boiler No. 33 was in violation of

the sulfur emission standards contained in the Pennsyl-

vania implementation plan.

On September 19, 1973, the DER granted Petitioner

a variance from its sulfur emission standards until June

30, 1976, however, directing Petitioner, as a condition to

the variance, to install a sulfur emission control device.

Petitioner believes and has asserted that the variance

granted by DER will not interfere with the attainment

or maintenance of ambient air quality standards. Peti-

tioner appealed the action of the DER to the Environ-

plants has been remanded for re-examination by the

United States Court of Appeals for the Third Circuit.

See, Duquesne Light Co. v. Environmental Protection

Agency, 522 F.2d 1186 (3d Cir. 1975).

*25 Pa. Code § 141.5. See also the Pennsylvania Bul-

letin of April 28, 1973, page 808 which extended the au-

tomatic stay of prosecution until final action was taken

by the DER on variance applications.

BLEED THROUGI

Statement of the Case.

mental Hearing Board pursuant to Pennsylvania’s

Administrative Agency Law* and Administrative Code

of 1929.**

On December 20, 1973, Petitioner, faced with con-

flicting agency action, i.e., the threat of federal prosecu-

tion while state procedings approved by the Administra-

tor as part of Pennsylvania’s implementation plan were

pending, filed a complaint for declaratory and equitable

relief in the United States District Court for the West-

ern District of Pennsylvania. As subsequently amended,

the suit named the Administrator, the DER and the

Secretary of the DER as defendants and sought, inter

alia, injunctive relief to prevent the Administrator from

enforcing the notice of violation allegedly issued pursu-

ant to Section 113 of the Clean Air Act. Jurisdiction was

alleged under Section 304 of the Clean Air Act, 42 U.S.C.

§ 1857h-2; 28 U.S.C. §$2201 and 2202; 5 U.S.C. § 701

et seq.; and 28 U.S.C. § 1337.

On June 19, 1974, the District Court dismissed Peti-

tioner’s amended complaint for lack of subject matter

jurisdiction holding, in reliance on Getty Oil Co. v.

Ruckelshaus,*** that the issues presented all involved

the reasonableness of the Pennsylvania implementa-

tion plan and, thus, should have been raised by Peti-

tioner in an appeal to the Court of Appeals for the

Third Circuit in June of 1972 pursuant to Section 307 of

the Clean Air Act, 42 U.S.C. § 1857h-5(b) (2).

*Act of June 4, 1945, P.L. 1388, as amended, 71 PS.

< 1710.1 et seq.

**Act of April 9, 1929, P.L. 177, as amended, 71

P.S. § 510-1 et seq.

***467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S.

1125 (1973).

POOR COPY

| aa Mi ok

Statement of the Case.

The judgment of the District Court was affirmed by

a divided three-judge panel of the Court of Appeals for

the Third Circuit which held that, although the Petition-

er’s issues had been improperly characterized by the Dis-

trict Court as falling within Section 307, jurisdiction did

not lie under either the Administrative Procedure Act or

28 U.S.C. s 1337 to determine whether the issuance of the

notice of violation by the Administrator was lawful.

Judge Adams dissented from the majority opinion stat-

ing, inter alia, that he believed that the notice of viola-

tion issued to Petitioner was judicially reviewable under

the Administrative Procedure Act, supra.

On August 15, 1975, Petitioner’s request for rehear-

ing en banc was denied with three members of the Court

of Appeals voting to grant the Petition For a Rehearing

en banc.*

“On February 18, 1975, the Administrator issued

a compliance order based on the illegal notice of viola-

tion. On June 27, 1975, Petitioner filed a plan of com-

pliance in accordance with the compliance order. How-

ever, the Administrator threatened to reject Petitioner’s

compliance pian. On March 20, 1975, Petitioner filed a

Petition For Review with the Court of Appeals for the

Third Circuit, docketed at 75-1259. On May 19, 1975,

the Court of Appeals issued a stay of all enforcement

activities by the Administrator. Argument on the Peti-

tion was held on October 2, 1975, following which the

Administrator and Petitioner entered into a court ap-

proved stipulation which provided that disposition of

the Petition would be deferred until September 30, 1975

and that enforcement activities would be stayed until

thirty days after such disposition. The Administrator

and Petitioner have requested the Court of Appeals to

approve a thirty-day extension of the stipulation. On

June 27, 1975, Petitioner requested approval from the

Pennsylvania Public Utility Commission to terminate

operation of Boiler No. 33.

BLEED THROUGH

Reasons for Granting the Writ.

REASONS FOR GRANTING THE WRIT

1. Review Of The Decision Below By This Honorable

Court Is Necessary To Clarify Federal-State Rela-

tionships Under The Clean Air Act.

The questions presented by this case involve im-

portant issues in a developing area of the law involving

the unique federal-state relationship inherent under the

Clean Air Act, supra. Ultimately, this case involves

socio-economic questions concerning the energy re-

sources of this nation.

In the case of Train v. NRDC, Inc., 43 U.S.L.W.

4467 (U.S. April 16, 1975), this Court addressed the

question of whether provisions of state environmental

regulations providing for variances from emission

limitations were valid because they constituted post-

ponements of a state implementation plan which the

Administrator had approved under the statutory scheme

established by the Clean Air Act. This case presents an

important corollary, i.e., whether the Administrator

may ignore valid variance provisions of a state imple-

mentation plan by taking enforcement action which con-

flicts with provisions of the plan and prevents persons

subject to its emission limitations from obtaining relief

specifically provided for by the approved plan. Petitioner

believes that unless this Court determines whether

a variance, valid under the test espoused by this Court

in Train v. NRDC, Inc., supra, is a defense to an en-

forcement action by the Administrator, then the Admin-

istrator will not be constrained from issuing notices of

violation to persons who are complying with a state

implementation plan, even without a variance.

Petitioner finds itself in a dilemma. However, Peti-

tioner’s dilemma, as noted by the Court below, is unlike

POOR COPY

Reasons for Granting the Writ.

the dilemma presented in Getty Oil Co. v. Ruckelshaus,

supra, quoted approvingly by this Court in Train v.

| NRDC,Inc., supra, because it is not a result of Petitioner’s

attempt to circumvent a state implementation plan. To

| the contrary, Petitioner has in all respects attempted to

comply with the Pennsylvania implementation plan. If

_ the Administrator’s action in this matter is permitted

+» to go unchecked, it will have the effect of undermining

state implementation plans and frustrating Congress’

intent to give the states primary authority in the field

of air pollution control. Train v. NRDC, Inc., supra.

Dakine Bry

Mier wk Ste

2. Review Of The Decision Below Is Necessary To Re-

solve Its Conflict With The Decisions Of Other

Courts Of Appeals On The Question Of Whether

2 PR be ese thas

i The Administrative Procedure Act Provides An

i Independent Basis For Federal Subject Matter

d Jurisdiction.

4 The Administrative Procedure Act, 5 U.S.C. § 702,

provides that, “A person suffering legal wrong because

of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute,

is entitled to judicial review thereof.”

The ratio decidendi below was that the above-quoted

provision does not constitute a jurisdictional grant, i.e.,

it does not invest the district courts with subiect matter

jurisdiction absent the existence of another and inde-

pendent basis for federal jurisdiction. In so holding, the

: Court of Appeals was rejecting its decision in Charlton

' _v. United States, 412 F.2d 390 (3d Cir. 1969) and was

j following at least two of its other decisions; Zimmerman

__-v. United States, 422 F.2d 326 (3d Cir. 1970): Local

i 542, International Union of Operating Engineers, AFL-

Bird Paes BAAS BRIM IE HAE

BLEED THROUG

Reasons for Granting the Writ.

CIO v. NLRB, 328 F.2d 850 (3d Cir. 1964), cert. denied,

379 U.S. 826 (1964) .*

The vast majority of the cases on this point, how

ever, have held that the Administrative Procedure Act

is an independent source of federal subject matter juris

diction. **

“Other cases which have also concluded that th | sn

ministrative Procedure Act does not provide a!

pendent basis for federal subject-matter jurisdiction |

clude: Bramblett v. Desobry, 490 F.2d 405 (6th Cu

(1974), cert. denied, 419 U.S. 872 (1974); Arizona Stats

Dept. of Public Welfare v. Department of Health, Bduca-

tion & Welfare, 449 F.2d 456 (9th Cir. 1971), cert. denied,

405 U.S. 919 (1972) ; Twin Cities Chippewa Tribal Coun-

cil v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir.

1967). See also, Ove Gustavsson Contracting Co. v.

Floete, 278 F.2d 912 (2d Cir. 1960), cert. denied, 364 U.S.

894 (1960); City of Dallas, Texas v. Rentzel, 172 F.2d

122 (5th Cir. 1949), (per curiam), cert. denied, 338 U.S.

858 (1949).

**See e.g., Toilet Goods Ass’n. v. Gardner, 360 F.2d

677 (2d Cir. 1966), aff’d., 387 U.S. 167 (1967); Eskra v.

Morton, 524 F.2d 9 (7th Cir. 1975): Sanders v. Wein-

berger, 522 F.2d 1167 (7th Cir. 1975) ;: Charles River Park

“A”, Inc. v. Dept. of Housing and Urban Development,

519 F.2d 935 (D.C. Cir. 1975); Ortego v. Weinberger,

516 F.2d 1005 (5th Cir. 1975) (indicating that even the

Third Circuit Court of Appeals has found APA to supply

jurisdiction; also indicating that Dunlop v. Bachowski,

85 S.Ct. 185 (1975) is not determinative of this issue) ;

Ruiz-Olan v. Secretary, Dept. of Health, Education &

Welfare, 511 F.2d 1056 (1st Cir. 1975); Natural Re-

sources Defense Council, Inc. v. Train, 510 F.2d 692 (D.C.

Cir. 1975) ; Elton Orchards, Inc. v. Brennan. 508 F.2d

493 (1st Cir. 1974); Pickus v. United States Board of

Parole, 507 F.2d 1107 (D.C. Cir. 1974) (compiling cases) ;

Young v. United States, 498 F.2d 1211 (5th Cir. 1974) ;

Bradley v. Weinberger, 483 F.2d 410 (1st Cir. 1973) ; In

Re School Board of Broward County, Florida, 475 F.2d

1117 (5th Cir. 1973); Aguayo v. Richardson, 473 F.2d

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TR TR HLL

al Seen S28 5.

+ DS Rar

Reasons for Granting the Writ.

It has been suggested by at least one text writer

that the decisions of this Court in Rusk v. Cort, 369 U.S.

367 (1962) and Flast v. Cohen, 392 U.S. 83 (1968), set-

tled the question contrary to the holding below. Davis,

Administrative Law Treaties, § 23.02 (Supp. 1970). Com-

menting on this view in Aguayo v. Richardson, supra,

Judge Friendly observed that in neither of the above

Supreme Court cases could jurisdiction have been sus-

tained in any other manner. He was concerned, however,

that no reference was made to the issue and doubted

that so important a question had been meant to be

decided sub silentio. The instant case offers this Court

an opportunity to resolve these conflicts.

1090 (2d Cir. 1973), cert. denied, 414 U.S. 1146 (1974) ;

Maddox v. Richardson, 464 F.2d 617 (6th Cir. 1972);

Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972);

Littell v. Morton, 445 F.2d 1207 (4th Cir. 1971) ; Brandt

v. Hickel, 427 F.2d 53 (9th Cir. 1970) ; Moore-McCormack

Lines, Inc. v. United States, 413 F.2d 568 (Ct. Cl.

1969) ; Brennan v. Udall, 379 F.2d 803 (10th Cir. 1967);

Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966) ;

Freeman v. Brown, 342 F.2d 205 (5th Cir. 1965); Mc-

Eachern v. United States, 321 F.2d 31 (4th Cir. 1963) ;

Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th

Cir. 1961).

RIiFrrn iTHROILIG

Reasons for Granting the Writ.

3. Review Of The Decision Below Is Necessary To Re-

solve Its Conflict With the Decisions Of Other Courts

Of Appeals On The Question Of Whether Agency

Action Which Is Unlawful Can Be Discretionary.

It is generally recognized that judicial review is

normally available to insure that administrative sanc-

tions are imposed only in accordance with legislatively

authorized rules. See, e.g., United States v. Carolina

Freight Carriers Corp., 315 U.S. 475, 489 (1942).

At least two circuit courts of appeals have held that

no clearer example of a non-discretionary duty can be

found than an agency’s responsibility to comply with its

own regulations. The strongest statement of this propo-

sition is contained in Scanwell Laboratories, Inc. v.

Shaffer, 424 F.2d 859, 874 (D.C. Cir. 1970) :

“(I]t is incontestable that many areas of government

contracting are properly left to administrative dis-

cretion; the courts will not invade the domain of

this discretion, but neither can the agency or official

be allowed to exceed the legal perimeters thereof. ...

When the bounds of discretion give way to the

stricter boundaries of law, administrative discretion

gives way to judicial review.

“The regulations of the Federal Aviation Ad-

ministration have the force of law... . The procure-

ment regulations also have the force of law. .

When a prima facie showing of the violation of those

regulations has been made the agency may not be

heard to say that the matter in question has been

left to its discretion.” (Footnote and citations

omitted). Accord, Ness Investment Corp. v. United

States Department of Agriculture, Forest Service,

512 F.2d 706, 714-5 (9th Cir. 1975).

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Been: AR, .

Reasons for Granting the Writ.

It would seem clear that the Administrator has

discretion to proceed beyond a notice of violation only if

that notice has been properly issued. This was forcefully

illustrated by Judge Adams who made the following

statement in his dissenting opinion:

“Although some aspects of a given decision may

be committed entirely to the policy judgment of an

expert administrator, where legal standards are

implicated the courts are available to persons ag-

grieved by the decision in order to assure that the

agency has adhered to the proper standards in

carrying out its duty [footnote omitted].”

Judge Adams specifically grounded his dissent on

the fact that the Administrative Procedure Act, supra,

provided an independent basis for subject matter juris-

diction, but noted that jurisdiction would also lie under

one of the general grants of jurisdiction such as 28

U.S.C. § 1337. (Judge Adams also noted that the ma-

jority’s view that Petitioner had waived jurisdiction

provided by 28 U.S.C. § 1337 was “unnecessarily re-

strictive.” )

Petitioner alleged in its Amended Complaint that it

was not violating the Pennsylvania implementation plan.

The Court of Appeals ignored this allegation and, para-

doxically, despite finding that the issuance of a notice

of violation was non-discretionary, held that the excep-

tion for “action committed to agency discretion by law”

was applicable because the Administrator’s decision to

enforce a notice of violation is discretionary.

In Citizens To Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971), this Court held that the excep-

tion to judicial review for, “action committed to agency

discretion by law” under the Administrative Procedure

BLEED THRO

Reasons for Granting the Writ.

Act, 5 U.S.C. § 701(a) (2), is a very narrow one—“ap-

plicable in those rare instances where ‘statutes are drawn

in such broad terms that in a given case there is no law

to apply.’ ’” Obviously, there is “law to apply” in the

instant case and, thus, the exemption for action ‘“com-

mitted to agency discretion” is inapplicable.

Reliance on the courts of this nation to rectify the

failings of our administrative system is indispensable to

the protection of individual rights. Individuals have a

right to resist administrative action which is not

authorized by statute. These principles should be de-

veloped to their fullest. For that reason and because the

decision of the court below is in direct conflict with the

authorities cited above, Petitioner believes that the

decision below merits this Court’s review.

4. The Holding Below That Issuance Of A Notice Of

Violation Under The Clean Air Act Is Not “Final

Agency Action” Subject To Review Under The Ad-

ministrative Procedure Act Misconstrues And Mis-

applies Controlling Authority Of This Honorable

Court And Raises Significant And Recurring Prob-

lems Involving Federal Jurisdiction.

The Court below held that issuance of a notice of

violation is not ‘final agency action for which there is

no other adequate remedy in court” as required for

review under the Administrative Procedure Act, 5 U.S.C.

S$ 704, on the basis that the Administrator has an

opportunity under the Clean Air Act to follow a viola-

tion notice with either a compliance order or a civil suit

for enforcement. Thus, the Court below concluded, in

reliance on Columbia Broadcasting System, Inc. v.

United States, 316 U.S. 407, 417-18 (1942), that a viola-

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FN SIAE adn

\ eit Ae ae hos

Reasons for Granting the Writ.

tion notice “has neither an independent coercive effect

nor the force of law.” In Columbia Broadcasting System,

Inc. v. United States supra, however, this Court made

the following statement:

“The regulations [of which review was sought |

are not any the less reviewable because their pro-

mulgation did not operate of their own force to deny

or cancel a license. It is enough that failure to

comply with them penalizes licensees, and appellant,

with whom they contract. If an administrative order

has that effect it is reviewable and it does not cease

to be so merely because it is not certain whether

the Commission will institute proceedings to en-

force the penalty incurred under its regulations for

non-compliance .. .” (Citations omitted.) (Em-

phasis added. )

As the above quotation illustrates, the Court of

Appeal’s holding misconstrues and misapplies controlling

authority of this Court dictating that courts take a

practical approach to the concept of finality.*

Although the Administrator may, as he has done in

the instant case, elect to follow issuance of the violation

notice with a compliance order, this avenue of proceed-

ing is not mandatory. After 30 days the Administrator

may, in addition, institute an enforcement action. Thus,

the effect of the issuance of a violation notice is imme-

diate and coercive, requiring Petitioner to expend tens

of millions of dollars for a sulfur emission control device

*See also: Abbott Laboratories v. Gardner, 387 U.S.

136 (1967) ; United States v. Storer Broadcasting Co., 351

U.S. 192 (1956) ; Frozen Food Express v. United States,

351 U.S. 40 (1956).

Reasons for Granting the Writ.

or to expose itself to substantial fines and/or imprison-

ment of its officers.*

The question of finality obviously is of the most

immediate importance to Petitioner and its rate-paying

customers. Other potential sources of pollution, how-

ever, also have a vital interest in the resolution of the

problem. Under the Clean Air Act, compliance with

national primary ambient air quality standards must be

achieved within a specified period after the Administra-

tor’s approval of a state implementation plan. For many

states, the grace period has now expired. It can be ex-

pected that numerous violation notices will follow such

expiration, particularly in view of the fact that the effect

of the decision below is to authorize the Administrator

to take enforcement action against sources which have

obtained a valid variance.

*In United States Steel Corp. v. Fri, 364 F.Supp.

1013 (N.D. Ind. 1973), the District Court concluded that

issuance of a compliance order is final agency action,

subject to review under the Administrative Procedure

Act. In view of the equivalent status of violation notices

and compliance orders under the Clean Air Act’s scheme

of enforcement, the decisions below and that in the

United States Steel Corp. v. Fri, supra, are in direct

conflict.

Sidon A289 nas BNE

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WE Ca Mt AD ie bh RUBIN: te

Reasons for Granting the Writ.

5. The Holding Below Renders The Clean Air Act Un-

constitutional Because It Denies Petitioner The

Opportunity To Defend Itself Against Prima Facie

Illegal And Unwarranted Agency Action.

The Court below held that the denial of a hearing

in the instant suit would not result in a deprivation of

due process because Petitioner has two alternate and

adequate avenues of relief available, to-wit, an appeal

to the Pennsylvania Environmental Hearing Board from

the DER’s grant of a variance and, as noted above, de-

fending a subsequent district court enforcement action

instituted by the Administrator. Petitioner respectfully

submits that said holding conflicts with decisions of this

Court and presents an important constitutional question

meriting this Court’s review.

It is by now well-settled that due process requires

the opportunity to be heard. Grannis v. Ordean, 234 U'S.

385, 394 (1914). Moreover, such hearing must be held

“at a meaningful time and in a meaningful manner”

Armstrong v. Manzo, 380 U.S. 545, 552 (1965), and must

be “appropriate to the nature of the case.” Mullane v.

Central Hanover Bank and Trust Co., 339 U.S. 306,

313 (1950).

Clearly, however, the appeal to the Environmental

Hearing Board does not satisfy the requirement of a full

hearing at a meaningful time. Indeed, the implication of

the decision of the Court below is that such an appeal is

irrelevant since the issuance of the notice of violation

is unappealable while the appeal to the Environmental

Hearing Board is pending. Furthermore, the invalidity

of the notice of violation is, on its face, irrelevant in the

state administrative appeal from the grant of a variance.

Consequently, regardless of the outcome of that appeal,

including presumably a finding that Petitioner was in

BLEED THROUGH

Reasons for Granting the Writ.

compliance, the Administrator could still have issued

and enforced the notice of violation under the holding

below. Moreover, even if Petitioner had obtained a suit-

able variance without a requirement that it install a

sulfur emission control device, the Administrator could

still enforce the notice of violation.

Similarly, the possibility of a subsequent enforce-

ment action and defense thereto does not satisfy the

“meaningful time” requirement of this Court’s rulings

and established constitutional due process standards. As

a practical matter, because of its virtually unlimited

potential liability, a source is unable to continue to dis-

regard agency demands pending judicial resolution of

the underlying dispute and must either involuntarily

accede to such demands prior to any hearing or act at its

peril.

In Ex Parte Young, 209 U.S. 123 (1908), petitioner

sought to invalidate a similar statutory scheme pro-

viding for stiff penalities, prior to a hearing, against

any railroad which charged less than the rates set by a

state regulatory commission. The petitioner claimed that

these provisions were confiscatory and, therefore, uncon-

stitutional. This Court stated:

“The officers and employees could not be expected

to disobey any of the provisions of the acts or

orders at the risk of such fines and penalties being

imposed upon them, in case the court should decide

that the law was valid. The result would be a denial

of any hearing to the company. .. . [f the law be such

as to make the decision of the legislature or of a

commission conclusive as to the sufficiency of the

rates, this court has held such a law to be unconsti-

tutional. . . .” Accord, Oklahoma Operating Co. v.

Love, 252 U.S. 331 (1920). |

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hag bel oie fb Reerenen | if

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SAMAR tents Wow

RANEY &

Conclusion.

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the Third Circuit.

Respectfully submitted,

HAROLD R. SCHMIDT

LAWRENCE A. DEMASE

Ninth Floor, Oliver Building

Pittsburgh, Pennsylvania 15222

AND

MICHAEL G. KUSHNICK

919 Eighteenth Street

Washington, D.C. 20006

Counsel for Petitioner

West Penn Power Company

Of Counsel:

FREDERICK W. STEINBERG

AND

ROSE, SCHMIDT AND DIXON

Ninth Floor Oliver Building

Pittsburgh, Pennsylvania 15222

AND

ROSE AND KUSHNICK

919 Eighteenth Street

Washington, D.C. 20006

DATED: January 9, 1976

BLEED THROUGH

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 74-2050

WEST PENN POWER COMPANY, a corporation,

Appellant

RUSSELL TRAIN, Administrator of the Environmental

Protection Agency of the United States of America,

and DEPARTMENT OF ENVIRONMENTAL RE-

SOURCES of the Commonwealth of Pennsylvania

and MAURICE K. GODDARD, individually and as

Secretary of the Department of Environmental Re-

sources and DEPARTMENT OF ENVIRON-

MENTAL RESOURCES of the Commonwealth of

Pennsylvania

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

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

Argued April 28, 1975

Before VAN DUSEN, ADAMS and GARTH, Circuit Judges

Harold R. Schmidt, Esq., Lawrence A.

Demase, Esq. and Edwin J. Strassburger,

Esq., Rose, Schmidt and Dixon,

Pittsburgh, Pa.

and

Thomas K. Henderson, Esq., Greensburg, Pa.,

Attorneys for Appellant

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Opinion of the Court.

Wallace H. Johnson, Assistant Attorney

General; Edmund B. Clark, Martin Green,

and John E. Varnum, Attorneys;

U.S. Department of Justice,

Washington, D.C.,

Attorneys for Appellee Russell Train

Barbara H. Brandon, Assistant Attorney

General, Commonwealth of Pennsylvania,

Harrisburg, Pa.

Attorney for Appellee Maurice K.

Goddard and Appellee Department of

Environmental Resources of the

Commonwealth of Pennsylvania

Bie palatal hte

OPINION OF THE COURT

(Filed July 16, 1975)

thy on tial Aan | aah vlamiss eal Sabi Mad

Dhaai

VAN DUSEN, Circuit Judge.

This appeal challenges a June 19, 1974, district court

order dismissing West Penn Power Company’s amended

complaint for lack of jurisdiction.! The dismissed com-

plaint sought injunctive and declaratory relief protect-

ing West Penn from any duty to comply with the particu-

late and sulfur compound emission standards established

wit lle tapndbond W9rd

NON Ri NOL REUaR, Sebodine

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

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

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

1974, denying the motion for reconsideration of the June

19 order was docketed as Document +29 in Civil No. 73-

1083 (W.D. Pa.).

ERCP. EMILE IN ELIE AIOE 6 ELE, OL HF

[pee BN a Petar ag Rava Sak is WA Naina oe

BLEED THROUGH

Opinion of the Court.

as part of Pennsylvania’s implementation plan? pursuant

to the Clean Air Act, 42 U.S.C. § 1857 et seq.*

West Penn did not file a petition for review under

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

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

matter and sulfur compound emission standards rele-

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

the regulations which form Pennsylvania’s implementa-

tion plan. The plan was adopted by the Environmental

Quality Board of the Commonwealth of Pennsylvania on

January 27, 1972, and approved by the Administrator of

the Environmental Protection Agency (EPA) on May

a 1972. 37 Fed. Reg. 10889; 42 U.S.C. § 1857h-5(a) (1)

and (2).

3. The Clean Air Act was amended by the Air

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

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

1970 amendments to the Clean Air Act required the EPA

to propose primary and secondary air quality standards.

42 U.S.C. § 1857c-4. Within nine months after the pro-

mulgation of each of these standards, every state was to

adopt and submit to the Administrator of the EPA “a

plan which provides for implementation, maintenance,

and enforcement” of the standards. 42 U.S.C. § 1857c-5.

In accordance with the statutory scheme, Pennsylvania

held four public hearings on its proposed plan. The rec-

ord does not reveal whether West Penn appeared at any

of the hearings, which were held from December 1-4,

1971. The plan, including the emission standard which

generated this suit, was adopted by the Pennsylvania

Environmental Quality Board on January 27, 1972; the

plan provisions relevant to this suit were approved by

the EPA Administrator on May 31, 1972. 37 Fed. Reg.

10889. For a fuller description of the legislative scheme,

see Duquesne Light Co. v. EPA, 481 F.2d 1, 3-5 (3d Cir.

1973).

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

part:

“A petition for review of the Administrator’s action

in approving or promulgating any implementation

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NASER VeRO Sec drat Res.

eiLaatpenees

BA SRI Rh ha,

Opinion of the Court.

tion plan when it was approved, but petitioned the

Pennsylvania Department of Environmental Resources

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

sulfur compound emission standards applicable to Boiler

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

tember 13, 1973, before DER had acted on its variance

request,“ West Penn received from EPA a Notice of

Violation‘ charging that the Mitchell Power Station was

in violation of the applicable particulate and sulfur com-

plan... may be filed only in the United States Court

of Appeals for the appropriate circuit. Any such pe-

tition shall be filed within 30 days from the date of

such promulgation, approval, or action, or after

such date if such petition is based solely on grounds

arising after such 30th day.”

In addition to challenging the plan as a whole under the

above statute, West Penn could have sought relief from

the operation of particular requirements of the plan by

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

$ 4004.41 and 42 U.S.C. § 1857c-5(a) (3).

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

was adopted January 27, 1972, and approved by EPA on

May 31, 1972.

6. The petition for variance, originally filed Sep-

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

amended petition, West Penn proposed to reduce sulfur

compound emissions by burning low sulfur coal and by

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

tion of the pollutant. West Penn further stated its intent

to “install sulfur-control equipment as soon as com-

mercially proven, reliable, and environmentally accept-

able equipment is available.” Particulate matter was to

be controlled by use of an electrostatic precipitator and

by chemical treatment of the flue gas.

7. The notice of violation was issued pursuant to

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

“Whenever, on the basis of any information

available to him, the Administrator finds that any

person is in violation of any requirement of an ap-

BLEED THROUGH

Opinion of the Court.

pound emission standards. Thereafter, on September 19,

1973, DER granted West Penn a temporary variance

until June 30, 1976, from the sulfur emission standards.*

The variance, however, rejected West Penn’s proposal

that it use a “tall stack” and low sulfur coal to meet the

standards; installation of a “scrubber” device for con-

trolling sulfur compound emissions was a condition of

the variance. This temporary variance has not been

approved by EPA.!°

West Penn first appealed DER’s variance order to

the Pennsylvania Environmental Hearing Board'! and

then, on December 20, 1973, filed this action against the

Administrator of EPA, Train, the Secretary of DER,

plicable implementation plan, the Administrator

shall notify the person in violation of the plan and

the State in which the plan applies of such finding.

If such violation extends beyond the 30th day after

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

ministrator may issue an order requiring such per-

son to comply with the requirements of such plan or

he may bring a civil action in accordance with sub-

section (b) of this section.”

8. Particulate emission standards were to be met

by November 1, 1973.

9. See note 6 supra.

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

ural Resources Defense Council, Inc., 43 U.S.L.W. 4467,

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

haus, 467 F.2d 349, 358 (3d Cir. 1972), cert denied, 409

U.S. 1125 (1973).

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

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

eted at Environmental Hearing Board No. 73-330.

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- BS fa ee a ee

es RI PRN CLs seth AOR 2 5 Niet Ba

Opinion of the Court.

Goddard, and DER.12 The complaint, as amended,!3

asked for a declaratory judgment both that the tall

stack scheme for effecting compliance with Pennsy]l-

vania’s implementation plan could not be rejected by the

defendants and that West Penn was not presently violat-

ing the plan. West Penn also sought preliminary and

permanent injunctions against EPA enforcement of the

September 13, 1973, Notice of Violation and DER en-

forcement of the order to install a ‘“‘scrubber.’’!4 Juris-

diction was predicated upon “‘the Clean Air Act, 42 U.S.C.

§ 1857 et seq., specifically 42 U.S.C. § 1857h-2 [entitled

“Citizen suits—Establishment of right to bring suit’”’] ;15

12. Before filing suit in federal court, West Penn

participated in a series of meetings held by EPA from

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

investigation at this conference was the state of the art

of sulfur emission control.

13. The original complaint named only EPA and

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

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

uary 1974, West Penn amended its complaint to add the

Secretary of DER as a defendant.

14. Inits brief, West Penn avers that the complaint

also asked for “a decree that the installation of flue gas

desulfurization device [‘‘scrubber’’] on Boiler No. 33

would not effect compliance with the Pennsylvania im-

plementation plan after the expiration of the variance

period.” Brief for Plaintiff-Appellant at 5. We agree with

defendant Secretary of DER that the complaint cannot

be construed as raising such an issue.

15. “S$ 1857h-2. Citizen suits—Establishment of

right to bring suit.

“(a) Except as provided in subsection (b) of

this section, any person may commence a civil action

on his own behalf—

(2) against the Administrator where there

is alleged a failure of the Administrator to perform

PEAR IEA Life RINE ASN eT CEA

BLEED THROUC

Opinion of the Court.

The Administrative Procedure Act, 5 U.S.C. § 701 et

seq.;16 The Federal Declaratory Judgment Act, 28 U.S.C.

§§ 2201 and 2202; and 28 U.S.C. § 1337.”17 Amended

Complaint, {| 6, Civil Action No. 73-1083, Document #20

(W.D. Pa.).

On June 19, 1974, after the three defendants had

filed F.R. Civ. P. 12(b) motions to dismiss for lack of

subject matter jurisdiction,!® the district court dis-

any act or duty under this chapter which is not dis-

cretionary with the Administrator.

“The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties, to enforce such an emission

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

the Administrator to perform such act or duty, as

the case may be.

Notice

“(b) No action may be commenced—

(2) under subsection (a) (2) of this sec-

tion prior to 60 days after the plaintiff has given

notice of such action to the Administrator.”

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

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

dictional basis in the original complaint.

17. “S$ 1337. Commerce and anti-trust regulations

“The district courts shall have original jurisdic-

tion of any civil action or proceeding arising under

any Act of Congress regulating commerce or pro-

tecting trade and commerce against restraints and

monopolies.”’

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

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

merce within the scope of $1337.

18. DER and Goddard also argued that the

Eleventh Amendment precluded the court from exercis-

ing personal jurisdiction over them. Other grounds for

dismissal urged by DER and Goddard were: failure to

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Pee eee eS

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A a Dg DIT eT AIS ie ats Bloat

Es ce bob ha

Opinion of the Court.

missed the amended complaint in its entirety, as to all

defendants. The court first determined that it lacked

jurisdiction over the EPA Administrator, Train. Relying

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

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

court concluded that neither the Declaratory Judgment

Act (DJA) nor the Administrative Procedure Act

(APA) furnished a jurisdictional base for West Penn’s

suit against Train.!° No jurisdiction lay under § 1857h-2

because West Penn had not given Train 60 days’ notice

of the suit, as required by that section.2° Having thus

join indispensable parties; no exhaustion of administra-

tive remedies; failure to state a claim upon which relief

could be granted; and the abstention doctrine.

19. The court considered and rejected the allega-

tion of jurisdiction under 28 U.S.C. § 1337 together with

the APA and DJA claims.

20. The district court opinion set forth the notice

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

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

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

immaterial.

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

tion, the district court relied on the discretionary nature

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

vania plan, and including therein a provision which pre-

vents plaintiff from using the so-called tall stack as a

method of compliance with the ambient air standards.”

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

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

that Train v. Natural Resources Defense Council, 43

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

ministrator’s discretion is more limited than the district

court inferred from its reading of 42 U.S.C. §1857c-5,

this second ground might not, alone, be dispositive of the

claim under § 1857h-2. The failure to give notice, how-

ever, suffices to preclude § 1857h-2 jurisdiction. More-

over, West Penn has not appealed this jurisdictional

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Opinion of the Court.

rejected each of West Penn’s jurisdictional claims,?! the

district court went on to find that, in any event, 42 U.S.C.

§$ 1857h-5(b) (1) and (2)22 foreclosed district court

jurisdiction over the action. Since the district court

determined that all issues raised in the complaint could

have been brought before the court of appeals in an

action challenging the Pennsylvania implementation

plan, it held that West Penn’s exclusive recourse against

Train was a proceeding under 42 U.S.C. § 1857h-5(b) (1).

As to DER, the court held the action barred by the

Eleventh Amendment.?3 The court also concluded that it

lacked jurisdiction over the Secretary of DER, Goddard.

The court viewed West Penn’s assertion that DER lacked

power to reject a “tall stack” or to direct installation of a

“scrubber” as, essentially, a challenge to the Pennsyl-

vania implementation plan. Such a challenge could be

brought only in the court of appeals pursuant to 42

U.S.C. § 1857h-5(b) (1) and (2). The district court opin-

ion recognized that a variance from the air quailty

standards would remedy West Penn’s complaint, but

noted that the temporary variance issued by DER on

September 19, 1973, was ineffective without EPA ap-

holding. But see Metropolitan Washington Coalition for

Clean Air v. District of Columbia, 373 F. Supp. 1089, 1092

(D. D.C. 1974).

21. See note 19 supra.

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

provides:

“(2) Action of the Administrator with respect

to which review could have been obtained under

paragraph (1) shall not be subject to judicial review

in civil or criminal proceedings for enforcement.”

23. This holding was not appealed.

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Opinion of the Court.

proval, which the court could not compel.2! This lack of

jurisdiction over the EPA Administrator, Train, rendered

federal court intervention “futile,” since Goddard could

not grant a variance or approve a “tall stack” without

24. See discussion at 5-6, supra. The district court

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

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

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

tained upon application of the Governor of Pennsylvania

for a one-year extension of the compliance date for the

implementation plan. This elaborate procedure for ob-

taining a postponement of the compliance date is con-

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

authored its opinion, the Supreme Court has reversed the

Fifth Circuit decision, supra, and held, in Train v. NRDC,

43 U.S.L.W. 4467, 4471 (U.S., Apr. 16, 1975), that a

variance can be obtained pursuant to § 1857c-5(a) (3),

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

variance becomes effective merely upon approval by the

EPA Administrator. Further, the Administrator is to

grant the variance “if he determines that it meets the

requirements of [$ 1857c-5(a) (2), which sets forth cri-

teria for an acceptable implementation plan] and has

been adopted by the State after reasonable notice and

public hearings.” The Supreme Court’s holding in NRDC,

however, does not invalidate the district court’s finding

that West Penn had not obtained an effective variance,

since the EPA had not approved the temporary variance

under § 1857c-5(a) (3). See 43 U.S.L.W. at 4476-78 and

n.28. Nor, we believe, does the district court’s reliance on

the Fifth Circuit decision in NRDC undercut its con-

clusion that it lacked authority to compel the grant of a

variance to West Penn. A mandamus action, though not

proper under §$ 1857c-5(f) because of the great discre-

tion which the district court identified as implicit in that

section, might be proper under §$1857c-5(a) (3). How-

ever, no factual or legal argument made by West Penn in

this action would support issuance of a mandamus.

Therefore, West Penn was not prejudiced by the district

court's view that issuance and approval of a variance

was discretionary.

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Opinion of the Court.

EPA concurrence. Finally, the court found that Pennsyl-

vania law (35 Purdon’s Pa. Stats. § 4004(4.1)) offered

West Penn ample relief, without any need for federal

intervention.

West Penn filed a timely motion for reconsideration

challenging the dismissal of the complaint only as to

Train and Goddard. On September 10, 1974, after the

district court denied the motion, West Penn lodged this

appeal. Although it is not clear precisely which aspects

of the district court’s decision West Penn is appealing,?°

25. For example, the complaint seeks declaratory

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

Penn is presently in violation of the plan’s emission

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

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

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

quired dismissal of the complaint, West Penn urges only

that the first issue could not have been raised in a subsec-

tion (b) (1) proceeding. Brief for Plaintiff-Appellant at

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

properly dismissed the complaint as to the second issue.

Such a concession would also amount to an admission

that Goddard was properly dismissed as a defendant,

since the only cause of action the complaint alleged

against Goddard was that he lacked authority to reject

a tall stack and order installation of a scrubber as a

means of achieving compliance with the plan. Similarly,

West Penn’s argument that the district court has juris-

diction under the APA postulates power to decide only

the first issue raised in the complaint. Brief for Plaintiff-

Appellant at 18-23. At the same time, however, the sum-

mary of the argument describes the brief as arguing “at

length” that subsection (b) (2) did not bar “jurisdiction

to consider West Penn’s claims against the remaining de-

fendants.” Brief for Plaintiff-Appellant at 10, n.3. It is

true that arguments in support of inconsistent alterna-

tive claims are permitted under the Federal Rules of

Civil Procedure. In this case, however, the arguments are

not alternative, but serial, and the inconsistencies in

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Opinion of the Court.

we will treat the appeal as raising the following three

questions:

(1) whether the district court properly con-

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

missal of the complaint as to both Train and

Goddard;

(2) whether the district court has jurisdiction

under the APA?" of matters raised in the com-

plaint; and

(3) whether due process requires the district

court to assume jurisdiction and decide the issues

raised in the complaint.

I. EXCLUSIVITY OF THE REVIEW PROVIDED IN 42 U.S.C.

$ 1857h-5(b) (1) and (2)

West Penn claims that EPA could not cite the utility

for violating Pennsylvania’s implementation plan since

West Penn, by filing a petition for a variance on Septem-

ber 15, 1972, received an automatic stay of prosecution

for violation of the particulate and sulfur compound

emission standards. This argument relies on 25 Pa. Code

§$ 141.5, which provides:

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

quirements of £$ 141.11 of this Title (relating to

filing), and which is received by the Department

lola re ee

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the arguments briefed merely produce unnecessary con-

fusion into a case not otherwise complex.

26. West Penn does not argue on this appeal that

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

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

cedes that the DJA is not jurisdictional in nature, but

“defines the form of relief available to an aggrieved

y under the Administrative Procedure Act.” Brief

for Plaintiff-Appellant at 11, n.4.

ales

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ley

13a

Opinion of the Court.

within six months of the effective date of this

Chapter, shall operate prospectively as an automatic

stay of prosecution for violations of those provi-

sions of this Article with respect to which the vari-

ance is sought, until one year after the effcctive

date of this Chapter or until the Department takes

action on such petition, whichever occurs first, ex-

cept that the filing of a petition for a variance, or

the grant thereof, shall not relieve the petitioner

from full compliance with any orders and permits

previously issued or any stipulations and agree-

ments previously entered into by the Department,

nor shall such filing in any way preclude the Depart-

ment from pursuing any and all remedies available

to it, at law or in equity, to enforce such orders,

permits, stipulations, or agreements.”

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

ber 13, 1973, “and will remain so at least through June

30, 1975.”27 Brief for Plaintiff-Appellant at p. 10, n.3.

In addition, West Penn argued, both in its brief at 9

and before this court, that it has a variance from DER,

granted September 19, 1973, which exempts it from com-

plying with the sulfur emission standards until June 30,

27. West Penn does not reveal how it arrived at

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

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

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

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

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

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

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

not, therefore, raise any conflict between the state plan

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

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

the relevancy assigned it by West Penn’s counsel at oral

argument.

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Opinion of the Court.

1976.28 This contention that West Penn is not in viola-

tion of the plan thus poses no challenge to “the Adminis-

trator’s action in approving or promulgating any imple-

mentation plan,” 42 U.S.C. § 1857h-5(b) (1); rather, it

relies on the validity of the plan provisions for granting

variances. We therefore agree with West Penn that this

particular contention could not have been raised in a

$ 1857h-5(b) (1) proceeding. It follows that the district

court erred in finding that subsection (b) (2) barred its

jurisdiction to decide this claim.

It also appears that subsection (b) (2) would not

foreclose the district court from deciding whether a tall

stack was a proper method of complying with the plan.

The plan prescribes certain air quality standards which

must be met, not specific methods of attaining those

standards. A subsection (b)(1) suit would challenge

only the plan—that is, the standards, and not the

methods of compliance. Thus, subsection (b) (2) would

» not prevent West Penn from raising the tall stack issue

in the district court.2% See, generally, Note: Review-

_ ability of Administrative Action: The Elusive Search for

j a Pragmatic Standard, 1974 Duke L.J. 382, 384; L. Jaffe,

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

| tainable. A variance is not effective until it is approved

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

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

; Moreover, even if the argument were valid, West Penn

- would be subject to citation for violating the particulate

- emission standards at any time after November 1, 1973.

; See note 8.

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

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

409 U.S. 1125 (1973), where the plaintiff challenged the

7 Delaware plan regulations themselves. Id. at 355, See

_ Part I, infra.

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15a

Opinion of the Court.

Judicial Control of Administrative Action, 353-63, 372-76

(1965). However, unless there was an affirmative grant

of jurisdiction in the district court, the dismissal for

lack of jurisdiction was still proper.

II. JURISDICTION UNDER THE ADMINISTRATIVE PROCEDURE

ACT AND THE DECLARATORY JUDGMENT ACT

The district court relied on this court’s decision in

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

1972), Cert. denied, 409 U.S. 1125 (1973), for the propo-

sition that neither the DJA, 28 U.S.C. §§2201 and 2202,

nor the APA, 5 U.S.C. §$701 et seq., could “afford a basis

for jurisdiction.” 467 F.2d at 356. See also PBW Stock

Exchange, Inc. v. SEC, 485 F.2d 718 (3rd Cir. 1973);

Zimmerman v. United States, 422 F.2d 326 (3rd Cir.),

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

had filed suit in the Delaware district court, attacking

certain regulations which had been approved by the EPA

Administrator as part of that state’s implementation

plan under the Clean Air Act. The district Court deter-

mined that jurisdiction was properly invoked under 28

U.S.C. $1337, the DJA, and the APA. On appeal, this

court rejected the jurisdictional claim, finding that

neither the DJA nor the APA extended federal court

jurisdiction “to cases not otherwise within their compe-

tence.” 467 F.2d at 356.

West Penn asserts that the district court’s holding

and, presumably, Getty are inconsistent with the Su-

preme Court’s opinion in Abbott Laboratories v. Gard-

ner, 387 U.S. 136 (1967). Abbott Laboratories, appellant

contends, clearly mandates district court jurisdiction

under the APA to review the administrative action con-

tested by West Penn’s complaint. The above cited cases

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16a

Opinion of the Court.

(for example, Zimmerman, supra) show that the APA

does not constitute a jurisdiction grant3° and hence we

must affirm the district court’s dismissal in this case.

However, assuming, arguendo, that it did constitute such

a jurisdictional grant, we would still be required to af-

firm such dismissal.

The APA provides, in certain instances, for judicial

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

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

United States ....” The APA does not extend to state

agencies. Thus, it could not afford the district court jur-

isdiction of West Penn’s suit against Goddard, who is

the Secretary of a Pennsylvania agency.

As to Train, the complaint set forth two requests

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

atory judgment that West Penn was not violating the

plan as a means of preventing Train from citing the

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

an injunction against enforcement of any notice of vio-

30. Getty took Abbott Laboratories into account in

deciding that the APA did not empower the district

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

not appear to have advanced any arguments that would

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

under normal principles of stare decisis, be reluctant to

disregard a decision of our court which is closely ana-

logous to the case before us. This reluctance is reinforced |

by the Supreme Court’s favorable citation of Getty in |

Train v. NRDC, 43 U.S.L.W. 4467, 4476-77 (U.S., Apr. 16,

1975). We recognize, however, that some commentators

have taken a more expansive view of the reviewability

of administrative action under the APA than this court

did in Getty. See, e.g. G. Vining, Direct Review and the

Doctrine of Ripeness in Administrative Law, 69 Mich.

L. Rev. 1443 (1971) ; L. Jaffe, supra, at 339-63, 372-76.

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17a

Opinion of the Court.

lation. According to 42 U.S.C. $1857c-8(a) (1), the “Ad-

ministrator shall notify” any “person in violation of the

plan. . . .” Issuance of a violation notice is thus nondis-

cretionary. However the decision to enforce a violation

notice is discretion under 42 U.S.C. §1857c-8(b).31 The

APA does not provide for review of any act “committed

to agency discretion by law.” 5 U.S.C. §701(a) (2). See

Commonwealth of Ky. ex rel. Hancock v. Ruckelshaus,

497 F.2d 1172, 1177 (6th Cir. 1974). Thus the APA

would not provide jurisdiction for the district court to

issue the requested injunction. Jurisdiction to issue the

requested declaratory judgment is similarly wanting

under 5 U.S.C. $704, which subjects to judicial review

only “[a]gency action made reviewable by statute and

final agency action for which there is no other adequate

remedy in a court ... .” West Penn cites, and we have

found, no statute which makes reviewable Train’s issu-

ance of a notice of violation. Under the statutory plan,

the notice of violation is not “final agency action” since

it may be followed by either (1) an order which “may”

be issued 30 days after the notice, 42 U.S.C. §1857c-

8(a)(1), but “shall not take effect until the person to

whom it is issued has had an opportunity to confer with

the Administrator concerning the alleged violation,” 42

U.S.C. §1857c-8(a) (4), or (2) a civil suit under 42

U.S.C. §1857c-8(b), referred to above. The statutory

scheme contemplates that the violation notice itself has

neither an independent coercive effect nor “the force of

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

action for appropriate relief, including a permanent or

temporary injunction, whenever any person—

“(1) violates or fails or refuses to comply with

any order issued under subsection (a) of this scc-

SAGE SE IRE RRR NOLS BORE IST A

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18a

Opinion of the Court.

law.” Columbia Broadcasting System v. United States,

316 U.S. 407, 418 (1942). The notice bears no resem-

blance to the Food and Drug Administration regulations

which were found reviewable in Abbott Laboratories

and Garner v. Toilet Goods Association, 387 U.S. 167

(1967). The Court characterized the regulations chal-

lenged in Abbott and Toilet Goods as “formal,” “defini-

tive,” “effective upon publication” and “self-executing.”’

387 U.S. at 151, 171. See also Toilet Goods Association v.

Gardner, 387 U.S. 158, 162 (1967). By contrast, the only

effect of a notice of violation is to make the recipient

aware that the “definitive” regulations are not being

met and to trigger the statutory mechanism for infor-

mal accommodation which precedes any formal enforce-

ment measures. Of course, the plan’s emission standards

themselves are analogous to the regulations reviewed

in Abbott Laboratories, but those regulations are not

challenged on this appeal. See Part I above.

For the foregoing reasons, we hold that the APA

provides no ground for district court review of the is-

sues raised in West Penn’s complaint.

III. JURISDICTION AND THE DUE PROCESS CLAUSE

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

suit for lack of jurisdiction and denying a hearing on the

merits of all the issues raised in the Amended Com-

plaint, the learned District Court has interpreted the

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

manner which deprives West Penn of its due process

right to a hearing guaranteed by the Fifth and Four-

teenth Amendments of the United States Constitution.”

Brief for Plaintiff-Appellant at 23.

BERLE ISR PITRE DATE NER PR SRI SS REST STRONY I ORO GS ELE RS TS EIS

Rrrerern iTHROILIGH

19a

Opinion of the Court.

West Penn is not claiming that it has been denied

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

rather, that it will not receive constitutional due process

elsewhere than in a federal court hearing held prior to

any other proceedings which are available to resolve the

differences between the utility and the defendants. Yet

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

besides the present suit.

West Penn has taken the initiative in pursuing one

of these alternatives by appealing to the Pennsylvania

DER Environmental Hearing Board. Since the Board’s

decision is appealable to the Pennsylvania courts, 71

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

first step to state court settlement of its dispute with

Goddard.*2

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

adjudicative hearing before the Board. The rules of pro-

cedure at the hearing, set forth in the Pennsylvania Ad-

ministrative Agency Law, 71 Purdon’s Pa. Stats. ss

1710.1 et seq., comply with due process requirements as

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

West Penn cites this court’s decision in Duquesne

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

proposition that it would not be accorded due process if

it were relegated to its remedies under Pennsylvania law.

This assertion is rejected. In Duquesne, the parties had

already received a hearing before the Board which the

court determined, from an examination of the record,

was inadequate. The decision in Duquesne in no way

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

note that West Penn errs in stating it is in the same posi-

tion as the parties in Duquesne. Those parties were in the

Circuit Court by virtue of having brought a § 1857h-5

(b) (1) suit. 481 F.2d at 5. West Penn did not bring this

suit under that section of the Clean Air Act.

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20a

Opinion of the Court.

Consistent with Article VI of the Constitution, pro-

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

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

Land; and the Judges in every State shall be bound

thereby ...,” the Supreme Court of the United States

has operated under the assumption that the state judges

who have sworn to uphold such Constitution will afford

due process of law to the litigants before them. See

Huffman v. Pursue, Ltd., 43 U.S.L.W. 4379, 4385 (No.

73-296, U.S., Mar. 18, 1975); cf. Johnson v. Mississippi,

43 U.S.L.W. 4553, 4555 (No. 73-1531, U.S., May 12,

: 1975).33 Also, in view of the strong state interest in

3 maintaining the public health through abatement of air

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

the broad discretion delegable to public officials in the

application and enforcement of health laws, cf. Zucht v.

King, 260 U.S. 174 (1922), we see no justification for

federal court interference with the state court remedies

r available to the parties in this case. Duke v. Texas, 477

F.2d 244 (5th. Cir. 1973), cert. denied, 415 U.S. 978

; (1974).

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

4383, the Court used this language:

“Bven assuming, arguendo, that litigants are en-

titled to a federal forum for the resolution of all

: federal issues, that entitlement is most appro-

q priately asserted by a state litigant when he seeks

é to relitigate a federal issue adversely determined in

; completed state court proceedings. We do not un-

derstand why the federal forum must be available

prior to completion of the state proceedings in which

the federal issue arises, and the considerations can-

vassed in Younger [v. Harris, 401 U.S. 37 (1971) ]

j militate against such a result.” (Footnote omitted. )

ns — ————Eee — —_ = _

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Opinion of the Court.

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

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

Penn brought this action, it had received only a notice of

violation from Train. After receiving the notice, West

Penn had the opportunity both for informally negoti-

ating its differences with Train34 and for presenting its

cause to a federal district court, should EPA take for-

mal steps to enforce the regulations allegedly violated

by West Penn.35 Thus West Penn has future relief avail-

able to it in both the state and federal courts. Also, West

Penn has not advanced any reason that due process re-

quires one federal court suit—initiated by West

Penn—but prohibits another federal court suit that

might be initiated by EPA. It is difficult to postulate in

advance that two federal court proceedings which are

governed by the same rules of procedure would have

34. The utility has availed itself of this oppor-

tunity. West Penn and the EPA conferred on several oc-

casions during the pendency of the suit. After these

conferences, EPA issued an administrative order requir-

ing West Penn to adopt and implement a procedure for

complying with the Pennsylvania emission standards.

EPA gave West Penn the choice of switching to low

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

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

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

the final deadlines for reducing West Penn’s emissions

to meet the Pennsylvania standards was similarly ex-

tended for 60 days.

35. In Getty, the court noted that the plaintiff

there would “be foreclosed from raising these objections

in a civil and criminal proceeding for enforcement” be-

cause it had not pursued its exclusive remedy under

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

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

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

to argue them in an enforcement proceeding.

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22a

Opinion of the Court.

different results in terms of due process. See also Getty,

supra, at 357; 42 U.S.C. §1857h-5(c).

West Penn’s argument thus appears to misappre-

hend the nature of due process. Due process requires,

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

tial tribunal “at a meaningful time and in a meaningful

manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965) ;

Goldberg v. Kelly, 397 U.S. 254 (1970). A hearing which

comports with due process?’ must ordinarily be ac-

corded before a party can be ‘‘condemned to suffer griev-

ous loss,” Joint Anti-Fascist Refugee Committee v. Mc-

Grath, 341 U.S. 123, 168 (1951) (Frankfurter, J., con-

curring). See Goldberg, supra; Mattern v. Weinberger,

No. 74-1776 (3d Cir. 1975). But see Calero-Toledo v.

Pearson Yacht Leasing Co., 416 U.S. 663 (1974); Rich-

ardson v. Perales, 402 U.S. 389 (1971). The hearing,

however, need not be in federal court. See Arnett v. Ken-

nedy, 416 U.S. 134 (1974) ; In-Cho Chung v. Park, et al.,

Nos. 74-1875, 74-1876 (3d Cir.. Apr. 11, 1975). Thus a

party is not deprived of due process who, having no

federal cause of action, is relegated to the state courts

for redress. See, e.g., Murdock v. City of Memphis, 87

U.S. (20 Wall.) 590, 632 (1875); Huffman v. Pursue,

Ltd., supra. Nor is a party deprived of due process

merely because it must seek administrative resolution of

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

Benson, 285 U.S. 22 (1932); Estep v. United States, 327

U.S. 114 (1946); Barnes v. Chatterton, et al., No. 74-

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

actual form at any time being a function of the rights

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

W. T. Grant Co., 416 U.S. 690, 610 (1974). Thus we make

no attempt to give a detailed description of a hearing

which provides procedural due process.

EAE, ESET SN TG ey EPS

FMI LPI) I LOL MET LEE LIT SANSA LOS TRY

23a

Opinion of the Court.

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

also Jaffee, supra at 381-89.°7 Further since West Penn

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

statutory basis than the APA for district court jurisdic-

tion of this suit, this due process argument also appears

to misunderstand the power of the federal courts.

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

(1850), the Court described the jurisdiction of the

federal courts as being limited, first by the constitu-

tional definition of federal court powers and, second, by

the congressional distribution of jurisdiction :38

“It has been alleged that this restriction of the

Judiciary Act, with regard to assignees of choses in

action, is in conflict with this provision of the Con-

stitution, and therefore void.

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

quire a party to exhaust administrative remedies before

suing in a judicial forum. Yet the doctrine of exhaustion

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

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

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

has stated on several occasions that delegation of the

power to entrust enforcement of statutory rights to an

administrative process is not a violation of the con-

stitutional right to a jury trial under the Seventh

Amendment. See Pernell v. Southall Realty, 416 U.S. 363,

383 (1974), and cases there cited.

38. The concept of federal courts as exercising only

limited, as opposed to general, jurisdiction was hardly

original with Sheldon. See, e.g., Marbury v. Madison, 5

jurisdiction actually is has been the subject to active

debate. See generally, P. Bator, P. Mishkin, D. Shapiro,

and H. Wechsler, Hart and Wechsler’s The Federal Court

and the Federal System, 314-24; 330-75 (1973).

antl APS Assent EISEN ELIE INE TINTS EI OE

24a

Pk Ne, Leone! ae tatal Deh teeouraitin hs cee 4

mag

Opinion of the Court.

“It must be admitted, that if the Constitution

had ordained and established the inferior courts,

and distributed to them their respective powers,

they could not be restricted or divested by Congress.

But as it has made no such distribution, one of two

consequences must result,—either that each inferi-

or court created by Congress must exercise all the

judicial powers not given to the Supreme Court, or

that Congress, having the power to establish the

courts, must define their respective jurisdictions.

The first of these inferences has never been as-

serted, and could not be defended with any show of

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

as a necessary consequence. And it would seem to

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

gress may withhold from any court of its creation

jurisdiction of any of the enumerated controversies.

Courts created by statute can have no jurisdiction

but such as the statute confers. No one of them can

assert a just claim to jurisdiction exclusively con-

ferred on another, or withheld from all.

“The Constitution has defined the limits of the

judicial power of the United States, but has not pre-

scribed how much of it shall be exercised by the Cir-

cuit Court; consequently, the statute which does

prescribe the limits of their jurisdiction, cannot be

in conflict with the Constitution, unless it confers

powers not enumerated therein.

“Such has been the doctrine held by this court

since its first establishment. To enumerate all the

cases in which it has been either directly advanced

or tacitly assumed would be tedious and unneces-

sary.”

RE PRE IO aT - oth mara

25a

Opinion of the Court.

The holding of Sheldon, reaffirmed countless times, re-

quires a statutory basis for district court jurisdiction of

West Penn’s action. The mere invocation of “due proc-

ess” cannot without more furnish such a basis in this

suit.

Finally, even if we did discover a statutory grant of

jurisdiction, the inapplicability of the APA would pose

immunity barriers to this suit against Train, while the

policy against federal court intervention in the state ad-

ministrative process would prevent suit against God-

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

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

213-31, 327-29.

For the foregoing reasons, the June 19, 1974, dis-

trict court order will be affirmed.?% Costs will be taxed

against appellant.

39. We are not precluded from affirming the dis-

trict court’s order, even though we disagree with that

court’s determination that jurisdiction was lacking be-

cause 42 U.S.C. § 1857h-5(b) (1) provided West Penn’s

exclusive remedy. Rhoads v. Ford Motor Co., No. 74-

1626, slip op. at 5 (3d Cir., Apr. 30, 1975); Tunnell v.

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

wicki v. Pittsburgh Plate Glass Industries, Inc., 505 F.2d

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

Se Ey atte

26a

Opinion of the Court.

ApaMs, Circuit Judge, dissenting.

I respectfully dissent from the majority’s decision

because I believe that a notice by the federal Environ-

mental Protection Agency that a firm is violating a

federally approved air pollution regulation is, under the

specific factual configuration here, judicially reviewable

under the Administrative Procedure Act (APA).!

Pursuant to the Clean Air Act Amendments of 1970"

the Administrator of the Environmental Protection

Agency issued a national primary ambient air quality

standard regulating the permissible concentration of

sulfur oxides.* Under the Act, each state is required to

develop and submit for approval by the Administrator

an implementation plan designed to achieve the Adminis-

trator’s air quality standards.+ Once a state’s plan has

been ratified by the EPA, it becomes enforceable as a

federal regulation.

After the Administrator approved the Pennsylvania

plan, which included a provision intended to achieve

compliance with the Administrator’s limitation on the

proportion of sulfur oxides in the ambient air, West

1. 5 U.S.C. §§ 701 et seq. (1967).

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

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

directed to fix national primary and secondary ambient

air quality standards for air po .utants detracting from

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

Primary ambient air quality standards are those

necessary, in the Administrator’s judgment, to protect

national health. Secondary ambient air quality stand-

ards are those necessary, in the Administrator’s judg-

ment, to preserve the general welfare. See 42 U.S.C.

$ 1857c-4(b).

4. 42US.C. § 1857c-5.

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Opinion of the Court.

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

approval in the federal courts.5 West Penn did, however,

in accordance with the terms of the Pennsylvania plan,

petition the Pennsylvania Department of Environmental]

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

oxide emission‘ restriction as it applied to the company’s

Boiler No. 33 at its Mitchell Power Station.

On September 13, 1973, before DER had acted on

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

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

the federally approved Pennsylvania implementation

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

West Penn a temporary variance from the sulfur oxide

emission restriction, conditioned upon West Penn’s pro-

ceeding with the installation of a flue gas desulfurization

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

approved this variance from the Pennsylvania plan.7

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

grieved by the Administrator’s approval of any imple-

mentation plan to seek review in the court of appeals for

the appropriate circuit within 30 days of the Administra-

tor’s action.

6. Although West Penn Power sought variances

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

sulfur oxide restriction is relevant to this appeal.

7. A variance from an EPA accepted state imple-

mentation plan must be approved by the EPA before

the polluter is sheltered from federal enforcement of the

emission limitations contained in the implementation

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

For a discussion of the procedure for obtaining EPA ap-

proval of such a variance, see Train v. Natural Resources

Defense Council, 43 U.S.L.W. 4467 (U.S., Apr. 16, 1975).

West Penn did not ask the district court to compel the

Administrator to approve the variance, and we need not

therefore decide whether such a remedy would be avail-

able to the company.

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Opinion of the Courv.

West Penn, dissatisfied with the state’s conditioning the

variance upon the installation of a scrubber, appealed

the DER’s order to the Pennsylvania Environmental

Hearing Board.*

West Penn then sued’ the Administrator of the

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

company requested a declaratory judgment that West

Penn was not in violation of the Pennsylvania implemen-

tation plan and that the defendants had no right to

reject West Penn’s proposal for achieving compliance by

use of a tall stack.1° The firm also asked for preliminary

and permanent injunctions barring the Administrator

from proceeding to enforce the September 13, 1973 notice

of violation and preventing DER and its Secretary from

enforcing their order, in response to West Penn’s vari-

ance application, directing the utility to install a

scrubber.

The district court granted motions to dismiss with

respect to all the defendants. The trial judge concluded

that the action against DER was barred by the Eleventh

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

i although the Eleventh Amendment did not prohibit the

8. See 35 Pa. Stat. Ann. §$ 4004(4.1), 4013.5 and

71 Pa. Stat. Ann. § 1710.41.

9. West Penn’s original complaint did not name the

Secretary as a defendant.

10. The primary and secondary ambient air quality

standards issued by the Administrator define maximum

4 permissible concentrations of sulfur oxides in the at-

1 mosphere. A scrubber is intended to achieve these

q standards by removing the pollutants from exhaust

gases before they are discharged. In contrast, tall stacks

are designed to reduce the atmospheric concentrations

by dispersing the compounds over a wider area.

ES IPS IT ONS EF SE GR RE ROE STERILE, SLE, —

ae a ll <a oo % a nt ha ant Pek

29a

Opinion of the Court.

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

far as the suit was a challenge to the Pennsylvania im-

plementation plan, it was barred by 42 U.S.C. § 1857h-5

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

no authority to interfere with the exercise of discretion

by the Secretary of DER in issuing variances for EPA

approval.!2 As detailed more fully in the majority opin-

ion, the district court, relying in large measure on 42

U.S.C. § 1857h-5(b) (2) and Getty Oil,13 also rejected

all the proffered bases for its jurisdiction to hear the

suit against the Administrator.

The majority discerns that one of the arguments

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

tall stack strategy is a permissible method of complying

with the implementation plan, and therefore West Penn

is not contravening the plan. The majority states that

this contention does not constitute a justiciable issue

between West Penn and the Administrator under the

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

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

trator’s action in approving .. . any implementation

plan under section 1857c-5 of this title . . . may be

filed only in the United States Court of Appeals for

the appropriate circuit. Any such petition shall be

filed within 30 days from the date of such . .. ap-

proval... , 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.

12. West Penn did not appeal the dismissal of DER.

The majority affirms the dismissal as to the Secretary.

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

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

DoDmrRrnH Ares

Opinion of the Court.

APA, first, because the issuance of a notice of violation

by the EPA is not “final agency action,” and second, be-

cause the Administrator is invested with substantial

discretion in determining whether compliance procedures

should be initiated. I disagree.!4

The APA is to be liberally construed in favor of

affording judicial review of administrative actions. In

the words of Justice Harlan in the landmark case of

Abbott Laboratories v. Gardner, the “ ‘generous review

provisions’ [of the APA] must be given a ‘hospital inter-

pretation’ ”!5 Judicial supervision of agency conduct is

not precluded “unless there is persuasive reason to

believe that such was the purpose of Congress.’’!6 The

APA “embodies the basic presumption of judicial review

to one ‘suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action

within the meaning of a relevant statute.’ "!7 As this

Court recently declared, albeit in the context of a case

in which we found an express Congressional prohibition

against judicial review of the agency action in question:

Federal agencies should not be able to retreat be-

hind the concept of no judicial review unless Con-

gress has specifically authorized such a bar.!74

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

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

which was not addressed by the district court and which

the parties have not briefed or argued here.

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

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

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

17. 387 US. at 140.

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

1975).

a a LINDE ELLEN LO PL LALL EILEEN BIS EE ERE LE MILLE LEO d

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3la

Opinion of the Court.

SECTION 1857h-5(b) (2) Dors Not BaR West PENN’S

SUIT

As the majority states, this Court’s interpretation

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

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

whether the company has fulfilled its responsibilities

under the Pennsylvania plan. Instead of seeking judicial

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

plementation plan, Getty asked the state for a variance

delaying the effective date of the plan’s restriction of

the sulfur content of fuels burned in a particular region

of the state. The state administrative agencies denied

the variance, but the state courts temporarily restrained

Delaware from enforcing the restriction. While the state

was so restrained, however, the EPA demanded com-

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

on the grounds that primary air quality standards had

already been reached and that compliance, prior to the

development of alternative technology, would impose an

unreasonable economic burden. The panel held that we

could not in the procedural posture of that case enter-

tain economic or technological objections to the plan.

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

close later judicial inquiry with respect to issues which

could have been raised before a court of appeals in a suit

challenging federal approval of a state implementation

plan within 30 days after such approval. West Penn’s

contention that it has acted in conformity with the plan,

however, unlike Getty’s argument, does not take excep-

tion to the validity of the plan. At least with respect to

this issue, West Penn in essence concedes the legitimacy

of the Pennsylvania plan and asserts that the company

has obeyed it. This issue could not have been raised in a

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Opinion of the Court.

suit contesting EPA’s approval of the plan. Thus section

1857h-5(b) (2) does not furnish “clear and convincing

evidence,” or indeed any evidence, that Congress in-

tended to prevent judicial review of the question whether

West Penn may comply with the Pennsylvania plan by

constructing a tall stack.

THE SEPTEMBER 13, 1973 NOTICE OF VIOLATION ISSUED BY

EPA REPRESENTS FINAL AGENCY ACTION.

In order to assess whether the notice of violation

constitutes “final” agency action “committed by law to

agency discretion” within the meaning of the APA!8—

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

jority in sustaining the district court—it is necessary to

outline the statutory enforcement procedures under the

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

son is in violation of a federally-sanctioned implementa-

tion plan, the Administrator “shall notify the person in

violation of the plan and the State in which the plan

applies of such finding.”!9 If the failure to conform to

the plan continues beyond 30 days from the date of the

notice of violation, the Administrator may commence a

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

This chapter applies, according to the provisions

thereof, except to the extent that—

(1) statutes preclude judicial review.

(2) agency action is committed to agency dis-,

cretion by law.

5 U.S.C. §704 provides in part:

[F]inal agency action for which there is no other

adequate remedy in a court [is] subject to judicial

review.

19. 42 U.S.C. § 1857c-8(a) (1).

LORIE SUN BRS SATEEN RMT SERRE LT ENN LR RE ICS a NEE ENT Te OR, EE

MR RE GT tee

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Opinion of the Court.

overeat

civil enforcement action in the district court or “may

issue an order requiring such person to comply” with the

plan.20 Any such order “shall not take effect until the

person to whom it is issued has had an opportunity to

confer with the Administrator concerning the alleged

violation.21 Whether or not any enforcement suit has

been filed or any compliance order issued, however,

[a]ny person who knowingly violates any require-

ment of an applicable implementation plan... more

than 30 days after having been notified by the Ad-

ministrator . . . shall be punished by a fine of not

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

prisonment for not more than one year, or by

both.”22

The penalties for failure to obey a compliance order are

the same as those for failure to abate pollution within

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

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

doubled.24

Determination of the “finality” of agency action un-

der the APA must be viewed pragmatically. In Frozen

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

issued an order stating that specified goods did not

qualify for the “agricultural commodities” exemption

from the statutory requirement that motor carriers pos-

Sess a permit or certificate. The Supreme Court ruled

that this was a final order. Although the decree under

20. Td.

21. 42 U.S.C. § 1857c-8(a) (4).

22. 42 U.S.C. § 1857c-8(c) (1).

23. Id.

24. Id.

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Opinion of the Court

attack did not directly command the plaintiff carrier to

do or not to do any particular act, the Court considered

the order final and justiciable because it had “an im-

mediate and practical impact” on motor carriers and

shippers:

The determination made by the Commission is not

therefore abstract, theoretical, or academic. ... The

“order” of the Commission which classifies com-

modities as exempt or nonexempt is, indeed, the

basis for carriers in ordering and arranging their

affairs. ... Carriers who are without the appropriate

certificate or permit, because they believe they carry

exempt commodities, run civil and criminal risks.?°

As I have previously observed, the triad of Supreme

Court decisions in Frozen Foods, Storer Broadcasting?

and CBS?" has an overarching importance which reaches

beyond the particular facts involved there. In view

of the continuing significance afforded to those decisions

by the courts, the principles adopted in them constitute

a “rule” of federal administrative law which favors re-

view where the impact of agency action is, as in this

case, concrete and immediate.?*

25. 351 U.S. 40, 43-44 (1956). See United States v.

Storer Broadcasting Co., 351 U.S. 192 (1956); Abbott

Laboratories, 387 U.S. at 149-51.

26. United States v. Storer Broadcasting Co., 351

U.S. 192 (1956).

27. Columbia Broadcasting v. United States, 316

U.S. 407 (1942).

28. PBW Stock Exchange v. Securities and Ex-

change Comm’n, 485 F.2d 718, 741 (3d Cir. 1973) dis-

senting opinion), cert denied 416 U.S. 969 (1974).

ee oe oo —~—frrirn AAT EZ

35a

Opinion of the Court.

Here, further proceedings within the agency are

not necessary before the Administrator’s decision is en-

forceable against West Penn.29 The notice of violation,

independent of any further proceedings thus has a coer-

cive effect upon the utility. Continuation of West Penn’s

present compliance strategy beyond 30 days from the

date of the notice would render the company subject to

the possibility of a $25,000 fine for each day of continued

violation and would impose on the corporate officers the

risk of imprisonment if the EPA’s interpretation of the

implementation plan is eventually adjudicated correct.

On the other hand, compliance with the plan as

construed by the Administrator would require the im-

mediate commencement of the installation of a multi-

million dollar scrubber device? or the prompt shutdown

of the power plant. The choice faced by West Penn is

analogous to that of the drug companies in Abbott

Laboratories; if the drug manufacturers wished to con-

form to the agency’s labeling requirements,

(T|hey must change all their labels, advertisements,

and promotional materials; they must destroy

stocks of printed matter; and they must invest

heavily in new printing type and new supplies. The

alternative to compliance . . . would risk serious

criminal and civil penalties. . . .31

29. See 42 U.S.C. § 1857c-8(c) (1).

30. West Penn represented to the district court

that installation of a scrubber at the plant in question

would require an expenditure in excess of $23 million and

that operation of the equipment would increase operat-

ing costs by $6.5 million annually. The Administrator

has not disputed the order of magnitude of these figures.

31. 387 US. at 151-53.

ialatnaia« a... =o

36a

Opinion of the Court.

Thus the notice of violation here, like the regulation in

Abbott, is final agency action because it impels the com-

pany to accede to the dictates of the Administrator.32

Also, the notice of violation here is reviewable as

final action because judicial resolution of the question

whether West Penn’s proposed mode of pollution control

is interdicted by the state plan would not unduly disrupt

the systematic processing of the case within the EPA.

[T]he relevant considerations in determining finality

are whether the process of administrative decision-

making has reached a stage where judicial review

will not disrupt the orderly process of adjudication

and whether rights or obligations have been de-

termined.33

The notice that West Penn has failed to adapt to the

Pennsylvania plan represents the Administrator’s defini-

tive interpretation of the plan. His conclusion was not

merely tentative. Nor did the company’s complaint pre-

sent to the district court an abstract question or a hypo-

thetical situation. No further administrative proceedings

were necessary before a suit could be commenced by the

EPA compelling compliance with the plan and extracting

the statutory penalty. Although the Administrator may

decide when enforcement measures should be taken and

whether the agency should issue a compliance order? 4

32. See also National Automatic Laundry and

Cleaning Council v. Shultz, 443 F.2d 689, 698 (D.C. Cir.

1971).

33. Port of Boston Marine Terminal Assoc. v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 70-71

(1970).

34. A compliance order was issued to West Penn on

February 18, 1975, subsequent to the decision by the dis-

trict court.

DEERE TATE BANNER OSI ORGS ET PI BC a OE

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37a

Opinion of the Court.

or go directly to the district court, those determinations

ordinarily will not include a re-interpretation by the

Administrator of the implementation plan. Thus there

were no on-going administrative functions which could

be disrupted by judicial review as requested by West

Penn.

REVIEW SHOULD Not BE DENIED HERE BECAUSE OF THE

POSSIBILITY OF ENFORCEMENT PROCEEDINGS IN THE

FUTURE

As discussed earlier, since the issue of its compliance

with the plan could not have been adjudicated in an

action taking exception to federal approval of the plan,

West Penn would be free to assert in any litigation

brought to compel obedience to the plan or to a compli-

ance order—as well as in any suit to impose a penalty—

that it has already conformed to the plan by installing

a tall stack. The possibility of a subsequent enforcement

proceeding, however, does not generally prevent review

of agency action at the request of an aggrieved party

where, as here, that party may reasonably be intimidated

into acquiescing in the administrative ruling before

he can obtain a hearing at the enforcement stage.35

Under the statutory scheme here the Administrator

may indefinitely delay invoking the power of the district

courts so as to force West Penn into what the EPA con-

siders compliance with the plan. Yet for each day of

violation beyond an initial 30 day period West Penn

would possibly incur a substantial fine. Thus, because

of the potential liability if its good-faith interpretation

of the plan is incorrect, West Penn may not be able, as

a practical matter, to defy the EPA for any prolonged

35. See Abbott Laboratories, 387 U.S. 136; United

States v. Storer Broadcasting, 351 U.S. 192 (1956).

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Opinion of the Court.

period. Therefore, whether or not due process is satisfied

by the enforcement action, that proceeding, the timing of

which is entirely within the control of the agency, pro-

vides an inedequate forum under the APA for adjudicat-

ing the rights of the utility.

The state legislation before the Supreme Court in the

historic case of Ex Parte Young possessed a similar in

terrorem effect.56 That case, of course, arose long before

the enactment of the APA and in any event involved

state rather than federal administrative actions. The

Court’s description of the impact of the legislation, how-

ever, may be instructive here. The railroads in Young

sought an adjudication that the rates set by the state

regulatory commission were so low as to be confiscatory.

State law imposed a fine of up to $5,000 as well as im-

prisonment for each transaction in which the rate

charged exceeded the regulated rate. The Court stated,

“The officers and employees could not be expected to

disobey any of the provisions of the acts or orders at the

risk of such fines and penalties being imposed upon them,

in case the court should decide that the law was valid.

The result would be a denial of any hearing to the com-

pany.”37

ENFORCEMENT OF THE PENNSYLVANIA IMPLEMENTATION

PLAN Is Not AcTION “COMMITTED TO AGENCY DISCRE-

TION BY LAW” So AS TO PRECLUDE JUDICIAL REVIEW

Judicial consideration of West Penn's assertion that

its tall-stack strategy is in harmony with the state plan

is not forestalled by the fact that Congress has left to the

36. 209 U.S. 123 (1908).

37. Id. at 146.

39a

Opinion of the Court.

Administrator the tactica] decisions when and by what

method the EPA can most effectively execute the imple-

mentation plans. Although the APA provides an excep-

tion to the regime of judicial supervision in those cases

where “agency action is committed to agency discretion

by law,”38 that exception is applicable only in those

discreet and infrequent situations where Congress ex-

plicitly expressed an intent that the judgment of the

executive branch be wholly unfettered. The Supreme

Court has explained that this is “a very narrow excep-

tion. . . . [I]t is applicable in those rare instances where

‘statutes are drawn in such broad terms that in a given

case there is no law to apply.’ "39

Although some aspects of a given decision may be

committed entirely to the policy judgment of an expert

administrator, where legal standards are implicated the

courts are available to persons aggrieved by the decision

in order to assure that the agency adhered to the proper

standards in carrying out its duty.40

An “all or nothing” approach to reviewability would,

in specific cases, either be unfair to persons ag-

grieved by agency action, or imposed an unwise

burden upon the agency or the courts. Accordingly,

separable issues appropriate for judicial determina-

tion are to be reviewed, though other aspects of the

38. 5 U.S.C. § 701(a) (2).

39. Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 410 (1971).

40. East Oakland-Fruitvale Planning Council vy.

Rumsfeld, 471 F.2d 524, 534 (9th Cir. 1972); Scanwell

Laboratories v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970) -

Cappadora v. Celebrezze, 356 F.2d 15 (2d Cir. 1966).

Se er ee tanner |

ee a es

40a

Opinion of the Court.

agency action may be committed to the agency’s

expertise and discretion.*!

In the case at hand, the question whether tall stacks

meet air purity requirements of the applicable imple-

mentation plan is a legal issue wholly divorced from the

Administrator’s exercise of discretion in concluding at

what time and in what manner the plan should be en-

forced in order to maximize the public benefit. A resolu-

tion now by the district court of the issue raised by West

Penn would be confined to an interpretation of the plan

and need not in any way interfere with the proper and

expeditious functioning of the EPA.

CONCLUSION.

Since the APA embodies a presumption of federa!

review, since the issuance of a notice of violation in this

context has an immediate and grave impact on the

alleged polluter, since adjudication of a claim that the

alleged polluter is obeying the applicable implementation

plan would not interfere with the discretionary functions

entrusted to the Administrator, and since no other effec-

tive judicial review is available. I would hold that the

APA furnishes a basis upon which an alleged polluter

may obtain a forum for prompt resolution of his claim

that he has accommodated his conduct to the implemen-

tation plan.

41. East Oakland-Fruitvale Planning Council, 471

F.2d at 533. See, e.g., Dunlop v. Bachowski, 43 U.S.L.W.

4669 (U.S., June 2, 1975); Campaign Clean Water, Inc.

y. Train, 489 F.2d 492, 498 (4th Cir. 1973); Parker v.

United States, 448 F.2d 793, 797-98 (10th Cir. 1971);

Reddy, Inc. v. Dept. of Labor, 492 F.2d 538, 544 (5th

Cir. 1974).

a a <a oo Se a leo ole

4la

Opinion of the Court.

There is a strong public interest in the expeditious

resolution of this type of dispute. If West Penn is rele-

gated to reliance on some distant enforcement hearing,

the threat of a $25,000-a-day penalty may impel the

company to undergo an unnecessary expense of millions

of dollars, which will have to be borne either by the

firm’s shareholders or, more likely, its ratepayers. On the

other hand, if the Administrator's interpretation of the

plan is correct, in the absence of a hearing, West Penn

may in good faith continue to imperil the public health

and welfare by exceeding the permissible concentration

of pollutants. Accordingly, I would remand the cause

to the district court for consideration whether the pro-

posed tall stack fulfills the requirements of the plan.'!*

42. Since the majority reaches the merits of the

applicability of the APA to this dispute, I assume, with-

out deciding, that if the APA is not itself jurisdictional

in nature, Zimmerman v. United States, 422 F.2d 326.

330-31 (3d Cir. 1970), jurisdiction would be under one

of the general grants of jurisdiction, such as 28 U.S.C.

‘1337. See Dunlop v. Bachowski, 43 U.S.L.W. 4669, 4671

(U.S., June 2, 1975); Davis v. Romney, 490 F.2d 1360

(3d Cir. 1974). Although the district court rejected

’ 1337 as a basis for jurisdiction, it did so apparently in

reliance on section 1857h-5(b) (2). The majority's state-

ment, at fn. 26, that West Penn does not appeal that

ruling by the trial judge appears to take an unnecessarily

restrictive view of West Penn’s contentions.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

omarene ff Are

42a

Order Amending Slip Opinion.

UNITED STATES COURT OF APPEALS

FoR THE THIRD CIRCUIT

No. 74-2050

WEST PENN POWER COMPANY, a corporation,

Appellant

RUSSELL TRAIN, Administrator of the Environmental

Protection Agency of the United States of America,

and DEPARTMENT OF ENVIRONMENTAL RE-

SOURCES of the Commonwealth of Pennsylvania

and MAURICE K. GODDARD, individually and as

Secretary of the Department of Environmental Re-

sources and DEPARTMENT OF ENVIRONMEN-

TAL RESOURCES of the Commonwealth of Penn-

sylvania

ae Ty ae a en

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

L 4

' Present: VAN DUSEN, ADAMS and GARTH, Circuit Judges

| ORDER AMENDING SLIP OPINION

It is ORDERED that note 27 of the slip opinion of the

majority, filed July 16, 1975, in the above matter is de-

leted, and former notes 28 to 39 are renumbered 27 to 38,

respectively.

By THE COURT:

| VAN DUSEN

Circuit Judge

Dated: August 15, 1975

BLEED THROUGH

43a

Opinion.

APPENDIX B

InN THE

UNITED STATES DISTRICT COURT

For THE WESTERN DISTRICT OF PENNSYLVANIA

WEST PENN POWER COMPANY

RUSSELL TRAIN, Administrator of the En-

vironmental Protection Agency of the

ivil

United States of America and DEPART- Bsn

MENT OF ENVIRONMENTAL RESOURCES of f No. 73-1083

the Commonwealth of Pennsylvania and

MAURICE K. Gopparp, individually and as

Secretary of the Department of Environ-

mental Resources

Opinion

KNOx, District Judge

West Penn Power Company, a Pennsylvania public

utility, has filed suit in this district court asking for an

injunction against defendant Train, Administrator of

the Environmental Protection Agency of the United

States (hereinafter referred to as the Federal Adminis-

trator) and Maurice K. Goddard, individually and as

Secretary of the Department of Environmental Re-

sources, and the Department of Environmental Re-

sources of the Commonwealth of Pennsylvania (here-

inafter collectively referred to as the State defendants).

The suit seeks an injunction against enforcement of

a notice of violation issued by the Federal Administrator

requiring plaintiff to install a sulphur emission control

device on Boiler No. 33 at its Mitchell Power Station, a

POOR COPY

re ee ee eee

44a

Opinion.

“fossil-fired” electric generating facility in Washington

County, Pennsylvania and also seeks a declaratory judg-

ment that it is not in violation of the Pennsylvania Plan

for control and abatement of air pollution as approved

by the Federal Administrator. Particularly, it is com-

plained that the defendants are acting without authority

of law in rejecting plaintiff's Plan for compliance with

national standards controlling sulphur oxides by the

use of a tall stack instead of sulphur emission control

devices on the boiler.

Plaintiff avers that there are presently no sulphur

emission control devices available for use on this boiler

to enable it to comply with the regulations and that if it

is required to install such devices, its generating ca-

pacity will be greatly reduced and its supply of electric

power to its customers will be impaired. It is further

averred that to install such devices will result in an

expenditure in excess of $23,000,000 and annual costs of

$6,500,000 which will require considerable increases in

rates to its customers.

The federal legislation is lengthy and complicated

with respect to air pollution. The air pollution control

provisions are embodied in 42 U.S.C. 1857, et seq. with

numerous amendments. This legislation provides 2 com-

prehensive scheme for the control of air pollution

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

110} provision is made for filing of state implementation

plans to conform with national air quality standards as

promulgated by the Federal Administrator. A plan is

to be adopted by each state and submitted to the Ad-

ministrator within a limited period of time for approval.

Provision is made for action by the Administrator in

promulgating a plan where the state does not act.

ear $i Rb Sls I «lhe nl ale cli tsi

;

SERENE it

BLEED THROUGH

45a

Opinion.

The complaint is not clear as to exactly when the

Pennsylvania plan for implementation of the national

ambient air quality standards for Pennsylvania was ap-

proved by the federal agency, but it does appear that

such approval was prior to September 15, 1972, because

in paragraph 9 of the complaint, it is averred that the

plaintiff on that date petitioned for a variance from the

limitations contained in the Pennsylvania plan which

petition for variance was amended June 7, 1973.

The amended complaint (which, inter alia, added

defendant Goddard as a defendant in addition to the

original defendant the Department of Environmental

Resources of the Commonwealth of Pennsylvania) avers

that on September 13, 1973, the Federal Regional Ad-

ministrator notified the plaintiff that its power station

was in violation of the Pennsylvania Plan. On September

19, 1973, it is averred that the state defendants rejected

a variance for use of a tall stack on the boiler in question

but postponed compliance until June 30, 1976, when they

directed plaintiff to install a sulphur emission control

device on the boiler in question which order of the state

defendants plaintiff avers has been appealed “to the

appropriate administrative body”.

The plaintiff avers that the Federal Administrator

has exceeded his authority in interpreting the federal

Act to prohibit the use of a tall stack as a method for

attainment of air quality standards and as a result of

this intepretation by the Federal Administrator, the

state defendants have failed to promulgate regulations

permitting the use of a tall stack as a part of the

Pennsylvania plan. It is therefore claimed that the fed-

eral defendant has breached his non-discretionary duties

under Sections 108 and 110 of the Act (42 U.S.C. 1857c_

3 and 5).

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ee ee lala iil as |

46a

Opinion.

The Pennsylvania legislation under which the state

defendants and proceeding is found in 35 Purdon’s Pa

Stats 4001, et seq. It provides as pointed out by the plain-

tiffs for fines up to $1,000 per day, conviction after

further proceedings for a misdemeanor, and civil pen-

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

appear enough to constitute irreparable harm for a pre-

liminary injunction if the plaintiff was in the proper

judicial forum.

A. Suit AGAINST THE FEDERAL DEFENDANTS.

Insofar as the federal defendants are concerned,

plaintiff asks relief for a decree declaring that neither

defendants have a right to reject plaintiff’s plan for

compliance, that the decree be entered declaring that

plaintiff is not in violation of the Pennsylvania plan as

approved by the Administrator and for a preliminary in-

junction enjoining the Federal Administrator from pro-

ceeding to enforce the notice of violation issued on Sep-

tember 13, 1973.!

Jurisdiction to bring this suit against the Federal

Administrator is allegedly founded upon 5 U.S.C. 701,

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

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

tiff operates the Mitchell Power Station, a fossil-fired

: electric generating facility in Washington County, Penn-

sylvania.

3. Defendant, Russell Train, is the Administrator

of the Environmental Protection Agency of the United

States of America (‘“Administrator” herein) charged

with the responsibility under the Clean Air Act, 42 U.S.C.

: 1857 et seq of approving or disapproving plans of the

States for the implementation of national ambient air

quality standards and, in cooperation with the States, of

the enforcement of plans approved by the Administrator

for the implementation of national ambient air quality

standards.

Beet oe: LEE MNES PIER MEAL NGL IE LE ATE IE LLL RIE LE L LE BE LEE ES EEE OE

BLEED THROUGI

47a

Opinion.

et seq (Administrative Procedure Act), the Federal De-

claratory Judgement Act (28 U.S.C. 2201 and 2202,

together with the jurisdictional grant contained in 28

U.S.C. 1337) and also upon portions of the Clean Air

Act, specifically 42 U.S.C. 1857h—2.

Insofar as the Administrative Procedure Act and

Declaratory Judgment Act are concerned, our Circuit

has spoken very clearly in Getty Oil Co. v. Ruckelshaus,

467 F 2d 349 (3d cir 1972) stating (page 356) “The De-

claratory Judgment Act and APA could not afford a

basis for jurisdiction.”

4. Defendant, Department of Environmental Re-

sources of the Commonwealth of Pennsylvania (“Depart-

ment” herein) is an administrative agency of the Com-

monwealth of Pennsylvania authorized by the Pennsy]l-

vania Air Pollution Control Act, 35 P.S. 4000 et seq. to

prepare and develop a comprehensive plan for the con-

trol and abatement of air pollution in the Commonwealth

of Pennsylvania.

r * *

6. This Court’s jurisdiction is based upon the Clean

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

1857h-2; the Administrative Procedure Act, 5 U.S.C. 701

et seq; The Federal Declaratory Judgment Act, 28 U.S.C.

2201 and 2202 and 28 U.S.C. 1337.

7. The Clean Air Act, 42 U.S.C. 1587 et seq is an

Act of Congress regulating commerce.

8. On information and belief plaintiff avers that

the Administrator of the Environmental Protection

Agency has approved the plan submitted to it by defend-

ant Department for the implementation of national am-

bient air quality standards in the Commonwealth of

Pennsylvania. The plan approved by the defendant Ad-

ministrator included the rules and regulations of the

defendant Department with respect to the attainment

of national primary ambient air quality standards for

particulate matter and sulfur oxides as well as rules and

regulations with respect to variances from emission

standards for particulate matter and sulfur oxides.”

POOR COPY

48a

Opinion.

Referring to 42 U.S.C. 1857h—2 (Section 304 of the

Act) it appears that plaintiff’s claim for judisdiction is

based upon this language.

“Citizen suits—Establishment of right to bring suit

(a) Except as provided in subsection (b) of

this section, any person may commence a civil ac-

tion on his own behalf—

(2) against the Administrator where there

is alleged a failure of the Administrator to

perform any act or duty under this chapter

which is not discretionary with the Adminis-

trator.

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an emis-

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

order the Administrator to perform such act or

duty, as the case may be.”

1857h—2(b) provides as follows:

“No action may be commenced—

(1) under subsection (a) (1) of this section—

(A) prior to 60 days after the plaintiff has

given notice of the violation (i) to the Admin-

istrator, (ii) to the State in which the viola-

tion occurs, and (iii) to any alleged violator of

: the standard, limitation, or order, . . .”

It appears from the complaint and the admissions

of the parties that no such notice was given prior to the

institution of this suit. We agree with the defendant that

the Congress can specify in legislation terms upon which

iene PYRO IG ATLL DET POO

RI FEH THROTIIC

49a

Opinion.

the government consents to be sued and such terms must

be strictly followed. Hence, the court has no jurisdiction

of this suit under that Section. Entirely aside from the

notice provisions, we hold that this court has no juris-

diction under this Section for the reason that this covers

only cases where the Administrator is being sued for

failure to perform a non-discretionary duty. Here the

plaintiff is attacking the Administrator’s action in ap-

proving the Pennsylvania plan, and including therein a

provision which prevents Plaintiff from using the so-

called tall stack as a method of compliance with the am-

bient air standards. A reference to 42 U.S.C. 1857¢e—5

(Section 110) shows that the Administrator has ample

discretion in determining approval of state plans and

hence it is the holding of this court that no suit will lie

under 1857h—2.

The real obstacle in plaintiff's path, however, is 42

U.S.C. 1857h—5(b) (Section 307) wherein it is pro-

vided:

“(1) A petition for review of action of the

Administrator in promulgating any national pri-

mary or secondary ambient air quality standard,

any emission standard under section 1857c—7 of

this title, any standard of performance under sec-

tion 1857c—6 of this title, any standard under sec-

tion 1857f—1 of this title (other than a standard

required to be prescribed under section 1857f—

1(b) (1) of this title), any determination under

section 1857f—1(b) (5) of this title, any control or

prohibition under section 1857f—6c of this title, or

any standard under section 1857f—9 of this title

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 approving

POOR CHOpDY

;

Mneortaatir st 4

22D Ve

eS TNR ey pe

Opinion.

or promulgating any implementation plan under

section 1857c—45 of this title or section 1857c—6(d)

of this title may be filed only in the United States

Court of Appeals for the appropriate circuit. Any

such petition shall be filed within 30 days from the

date of such promulgation or approval, or after such

date if such petition is based solely on grounds aris-

ing after such 30th day.

(2) Action of the Administrator with respect

to which review could have been obtained under

paragraph (1) shall not be subject to judicial re-

view in civil or criminal proceedings for enforce-

ment.”

Admittedly the plaintiff chose not to file an appeal

with the Court of Appeals for the Third Circuit, which

appears to be the appropriate court, within 30 days and

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

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

: injunctions and declaratory judgments in this district

’ court against the actions of the Administrator.

Again, our Circuit in Getty Oil, supra, has spoken

very clearly on this matter:

“.. Getty was in the wrong court by virtue of

section 307 of the Act. The Declaratory Judgment

Act and APA could not afford a basis for jurisdic-

tion. Getty’s arguments against enforcement require

a determination by the court whether the regula-

tion is unnecessary, unreasonable or capricious.

Whether Getty abides in the regulation ‘in its gen-

eral application’ is immaterial. Jf Congress specifi-

i cally designates a forum for judicial review of ad-

: ministrative action, such a forum is exclusive, and

this result does not depend on the use of the word

FA a ta NC we etn eb Tn Nahe D9 aibtteg ae Septet

BLEED THROU

5la

Opinion.

‘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 Judg-

ment Act and the APA do not extend jurisdiction

of either the district courts or the appellate courts

to cases not otherwise within their competence.”

The court further said:

“No appeal was taken from the Administrator's

approval of the implementation plan to the court of

appeals as provided by the Clean Air Act. Instead,

Getty chose to seek a restraining order in the Chan-

cery Court of Delaware in December of 1971.”

Getty thereafter brought a suit in the United States

District Court for the District of Delaware and the Court

of Appeals held that the plaintiff company was attempt-

ing an end run around the act by seeking pre-en‘orce-

ment judicial review. The court held that there was no

jurisdiction in the district court and reffanded the case

with directions to the district court to enter an order

of dismissal for lack of jurisdiction. The court further

said:

“The Administrator has a responsibility to see

that a state plan will meet the national standards.

Because of that responsibility, he has a vital inter-

est in determining whether a particular deferral! wil]

have the effect of preventing attainment or mainte-

nance of the national standard. However, until the

criteria of 40 CFR 51.32(a) through (f) are met,

the Administrator is duty bound to enforce an an-

proved implementation plan.

“Getty’s protestations of good faith attempts to

bind suitable technology which would enable it to

comply do not affect the Administrator’s duty of

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deitianldi tis peed | RTE Seaile de tilahis’s Ciebatedten

ah nd

wt on

52a

Opinion.

enforcement. Likewise, the conditions established

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

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

event.”

We agree that the granting of the variance by the

state authorities extending time for compliance to June

30, 1976, amounts to a modification of the Pennsylvania

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

government there must be an application by the gover-

nor of Pennsylvania under 42 U.S.C. 1857c—5 and 6.

We have further enlightenment on the problems be-

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

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

that case, involving clarification of a previously entered

remand order by the circuit on petition for review timely

filed, the court said:

“Review by federal courts of actions taken by

the Administrator is circumscribed by section 307

(b) (1). It provides that petitions for review of the

Administrator’s actions approving implementation

plans are to be filed in the United States Court of

Appeals for the appropriate Circuit, within thirty

days of the date of the Administrator’s approval.

Subsection (2) of 307(b) forecloses later litigation

in enforcement proceedings of issues for which

review could have been had under section 307(b)

(1).”

The court further pointed up the so-called “Getty

Oil dilemma” which also exists in the instant case,

namely that even though a variance has been obtained

from state authorities, the Federal Administrator is

nevertheless bound to enforce the original! plan at least

BLEED THROUGH

53a

Opinion.

until proper application is made by the governor as

hereinbefore mentioned. The court said:

“A. The Getty Oil Dilemma

At oral argument, the EPA asserted that re-

dress through the state administrative process was

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

sue. The companies applied for variances permitting

deviation from the plan’s requirements. Petitions

seeking variances have, according to counsel, been

filed with the appropriate state authority and are

wending their way through the state administrative

process. Presumably, the final state administrative

determination will be subject to judicial review,

pursuant to the Pennsylvania Administrative

Agency Law, 71 PS 1710.41. Such recourse to the

state procedure for correction of alleged imprefec-

tions in the Pennsylvania Implementation Plan is

the path advocated by the EPA, but an undoubtedly

time-consuming course of action. However, it does

appear to serve the bi-level design of section 110 of

the Clean Air Act.”

The court further said:

“Thus Getty found itself in a difficult position.

It was liable to federal sanctions, imposed because

Getty was violating a state regulation adopted by

the Federal Government, but in effect. repudiated

by the state. The present case presents the Court

with the specter of a recurrence of the Getty para-

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

enforceable by, the EPA during the time state pro-

ceedings that might alter the plan are underway. A

proper decision of this case requires a resolution

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SR RAE ON GAT at

Opinion.

of this predicament. However, such resolution will

be considered in the concluding section of this

opinion.”

The court concluded as follows:

“The Court finds that to expose the companies

to the risk of punishment without affording them

full occasion to express their objections to the state

implementation plan is fundamentally unfair. There-

fore, this court instructs the EPA that it must either

(a) refrain from imposing any penalties on these

companies during the pendency of their state ad-

ministrative and judicial actions, so long as such

actions are pursued by the companies in good faith

and with due diligence or (b) afford the companies

a limited legislative hearing.”

As noted, it appears the plaintiff finds itself in the

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

extent its own doing in not filing a petition for review

with the circuit at the proper time. The circuit having

a case properly before it could very well direct the

administrator to refrain from enforcement procedures

while the variance application was still pending before

the state authorities but this court certainly would have

no power to enter such a direction to the administrator

when we determine as we do that we have no jurisdiction

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

filed by the Federal Administrator must be granted.

B. THE STATE DEFENDANTS.

Turning to the state defendants, we likewise find

that we are without jurisdiction in this matter. The

state defendants have raised numerous questions with

respect to the jurisdiction of this court over the Depart-

“ss

BLEED THROUGH

279, 36 L ed 2d 251,935 Ct 1614 (1973). It will be noted,

however, that Employees involved payment of money

out of the public treasury of the State of Missouri. The

instant case involves no such payment. Instead this suit

for declaratory and injunctive relief only would appear

to be properly brought against Goddard as an individual

and as Secretary under the exposition of principles con-

tained in Edelman v. Jordan, US , 39 L ed 2d

662 (United States Supreme Court Slip Opinion 72-1410.

March 25, 1974) in which case it was held that a suit

such as this would lie under the decision in Ex parte

Young, 209 US 123, 52 L ed 714, 28 S Ct 441 ( 1908) even

though there might be some effect upon the state re-

venues since the state officials were enjoined from en-

forcing monetary penalties against the offending party.

However this may be, we hold that we have no

jurisdiction to order relief against the state officials by

compelling them to promulgate variances as sought by

the plaintiff herein and in refraining from enforcing the

Pennsylvania plan which it is asserted was approved

without proper authority by the Federal Administrator.

POOR COPY

ee ea eG

os ili iets RMS Obl ae enna sete ks

ets

56a

Opinion.

Such determinations can only be made on a petition for

review by our court of appeals and since such review

was not sought at the appropriate time, the only other

remedy is to secure a complete variance and resulting

modification of the plan through state proceedings and

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

and 6 as heretofore discussed.

It does appear that a variance was sought from the

state authorities and the plaintiff states its position as

follows:

“On September 19, 1973, the Department

granted plaintiff a variance from its sulfur emission

standards until June 30, 1976, rejecting however

plaintiff's proposal for the use of a tall stack on

Boiler No. 33 and directing it to install a sulfur

emission control device. The action in the Depart-

ment was appealed to the environmental hearing

board—

“Despite the Department's grant of a Variance

until June 30, 1976, the Governor of ‘Pennsylvania

to date has not made application under Section

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

a one-year extension of the mid-1975 compliance

dates of the Pennsylvania Implementation Plan. Nor

to plaintiff's knowledge has any revision of that

plan been submitted for approval of the Administra-

tor under section 110a-3 of the Clean Air Act, 42

U.S.C. 1857c-5(a) (3).”

Again, we are dealing with discretionary powers of

state officials. Any state policy relying upon dispersion

techniques rather than the emission limitations has been

held to violate the Congressional policy with respect

to clean air. See Natural Resources Defense Counsel, Inc.,

ome |

BLEED THROUGH

57a

Opinion.

v. Environmental Protection Agency, 489 F 2d 390 (5th

cir 1974) in which case it was pointed out (page 401) :

“Section 1857c-5(f) is the device Congress chose

to insure this. Congress aimed to make variances,

postponements or whatever departures from earlier

commitments might be called unusal and difficult

to obtain. That is why Congress required applica-

tions for them to be made by the Governors of the

states thus insuring an initial screening of applica-

tions by high level state officials. And that is why

Congress imposed rigorous substitute conditions on

the granting of variances allowing them only when

the unavailability of technology made compliance

impossible when continued operation of the source

was essential to national security, public health or

public welfare and when all available alternative

control measures had been taken.”

The administrative authorities both state and

federal should take into consideration these matters in

connection with the current national energy crisis which

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

sulting in larger sulfur oxide emissions than heretofore

considered proper with, of course, all possible devices to

prevent further deterioration of the environment. That,

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

ministrative agencies charged with enforcement of these

statutes and also for Congress to consider.

It would obviously be futile for this court to restrain

the state authorities from enforcing these statutes in

compliance with a plan which Pennsylvania has sub-

mitted and had approved by the federal authorities, and

this court certainly has no means or requiring the Gov-

ernor of Pennsylvania to submit an application for

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58a

Opinion.

amendment of the plan as heretofore approved since, as

pointed out by the Fifth Circuit, it was intended that

such variations be difficult and be entirely reposed in the

governor’s discretion as to whether action was proper

under circumstances existing.

It appears that plaintiff's complaint is not that state

agencies have not granted them a postponement. Rather,

they complain that the state agency should have granted

them a complete variance and permitted a tall stack to

be erected in lieu of emission control devices which would

amount to a wholesale amendment of the Pennsylvania

plan.

If the plaintiff has any complaints about stays of

proceedings or has any other remedies against the Penn-

sylvania authorities, it appears that it has ample means

of securing extensions and so forth if the same are

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

provided:

“An appeal to the hearing board of the de-

partment’s order shall not act as a supersedeas:

provided however that upon application and for

cause shown the hearing board of the Common-

wealth court may issue such supersedeas. Any per-

son aggrieved by an adjudication of the hearing

board may appear to the Commonwealth court.”

This court has no disposition to interfere with the ad-

ministrative procedures under Pennsylvania law which

appear to be comprehensive and capable of handling any

complaints, constitutional or otherwise, which may be

made by the plaintiffs. Particularly is this so when it

appears we have no jurisdiction as heretofore deter-

mined over the Federal Administrator, and any such

58a

Opinion.

orders against the state authorities would be exercises

in futility.

For the above reasons, we determine that this court

has no jurisdiction of this suit and an appropriate order

will be entered.

Order

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

in the foregoing opinion and after consideration of the

briefs and arguments of counsel and the court being of

the opinion that it has no jurisdiction in the premises,

IT Is ORDERED that this action and the complaint filed

herein be dismissed for lack of jurisdiction.

WILLIAM W. KNox

United States District Judge

wes - Maile Fone ———__———

Supreme Court, U. $. ;

FILED

: 7 | | APR S976 2

@5 -974 ODAK, JR..CLERK

in the Supreme Court of the

UnjtedD States

October Term, 1975

No. 74-2050

WEST PENN POWER COMPANY,

a Corporation,

Petitioner

Respondents

ANSWER TO PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT FOR RESPONDENTS MAURICE kK.

GODDARD AND THE DEPARTMENT OF ENVIRON-

MENTAL RESOURCES, COMMONWEALTH OF PENNSYL-

DENNIS J. HARNISH

Special Assistant Attorney

General

514 Executive House

Apartments

101 South Second Street

P. O. Box 2357

Harrisburg, Pa. 17120

Attorney for Maurice K.

Goddard and The Depart-

ment of Environmental Re-

sources

Of Counsel:

WILSON OBERDORFER, Director

Bureau of Legal Services

518 Executive House Apartments

101 South Second Street

P. O. Box 2357

Harrisburg, Pa. 17120

Murrelle Printing Co., Law Printers, Box 100, Sayre, Pa. 18840

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TABLE OF CONTENTS

Counter-Statement of the Case ...............

Respondents Request To Be Stricken as Parties

Should This Court Issue a Rule 25 Order

Granting the Requested Writ ............

Reasons for Denying the Writ ................

A. The issues raised in this appeal are moot

B. In addition to the mootness of the appeal,

DER and Goddard respectfully suggest that

the reasons, individually and collectively,

set forth in the numbered paragraphs of Pe-

titioner’s petition for granting the writ do

not constitute the necessary special and im-

portant reasons for issuing the writ, but

rather represent specious and questionable

arguments concerning a soundly-reasoned

opinion of a Court of Appeals ..........

1. State variance does not stay federal en-

ae ECCI el A ee ee

2. This matter is not ripe for judicial re-

“a, 5 SE RTE ie Sena eb ae aes ie

3. Issuance of a notice of violation by

EPA under the Federal Clean Air Act is

not a final agency action under the Ad-

ministrative Procedure Act ...........

be ot, oo ., EEE ERE SRO ELS LOPES are Pea

PU ae Sek art aes cto e bind oo hedce cit

rma ares Ore

Tre ee

TABLE OF CITATIONS

CASES:

Abbott Laboratories vs. Gardner, 387 U.S. 136

DEN 2 ¢ Grains aioe Wat ce awe as 12, 13, 14, 15

Federal Power Commission vs. Hope Natural Gas

Company, 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed.

Pe i 6 ts Core. Sah Gl oaks dss eels 15

Federal Power Commission vs. Metropolitan Edison

Company, 304 U.S. 375, 58 S.Ct. 963, 82

NE ng i og ee en eg 15

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

1972), cert. denied 409 U.S. 1125 (1973) 9,12, 15

Rochester Telephone Company vs. U.S., 307 USS.

125, 3S SSX. F54, SS 1... 1147 .. ks. 15

Toilet Goods Association vs. Gardner, 387 U:S.

Ei, Br es Se CEOOED hewicek ds ce ecews 12, 13

Train vs. NRDC, Inc., 43 U.S.L.W. 4467 (USS.

i Me Mee ek. 8,9

STATUTES:

(Federal) Administrative Procedure Act, Act of

September 6, 1966, Pub. L. 89-554, 80 Stat.

381, 5 U.S.C. §551, et seq. (1967 ed.):

ME PRD ck hc cccncscéanes cen 12

Be, kN ae 5

Sy ener er ee 11

Barr. Pp ere eee 12

(Federal) Clean Air Act of July 14, 1955, c. 360,

Title I, §101, formerly §1, as added Decem-

ber 17, 1963, Pub. L. 88-206, §1, 77 Stat.

BLEED Tt

392, renumbered and amended October 20,

1965, Pub. L. 89-272, Title I, §101 (2) (3), 79

Stat. 992; November 21, 1967, Pub. L. 90-148,

§2, 81 Stat. 485, 42 U.S.C. §1857, et seq.

(1969 ed.):

Section 113(a) (4) ........000........

ss PR pea

(Pennsylvania) Administrative Agency Law, Act

of June 4, 1945, PLL. 1388, §1, as amended

71 PS. §1710.1, et seq. (Supp. 1975-1976) ..

(Pennsylvania) The Administrative Code of 1929

(Act of April 9, 1929, P.L. 177, Art. I, §1), as

amended 71 P.S. §501-1, et seq. (Supp. 1975-

1976):

OR ictal

REGULATION:

Pennsylvania Department of Environmental Re-

sources, Title 25, Pennsylvania Code:

Pe eo cae me

OTHER AUTHORITY:

United States Supreme Court Rules, 28 U.S.C.

Sot gcpslbenes, dae eed eT Eee OER

———— RIT Be IMAG ID TRS AE OE

20UGH POOR COPY

Es oa

(OPENS: ENON oR PCR TP ITIN OtRReS

RODE Fe oe oe

ED THROUGH

Counter-Statement of the Case 1

COUNTER-STATEMENT OF THE CASE

Petitioner bases its appeal on the argument that since

it has a variance from the Pennsylvania sulfur dioxide

emission standards granted by the Commonwealth of Penn-

sylvania, Department of Environmental Resources

(“DER”), the United States Environmental Protection

Agency (“EPA”) should not be allowed to enforce these

same standards under the Federal Clean Air Act. DER

and its Secretary, Maurice K. Goddard (“Goddard’’) , as-

sert that Petitioner’s argument is not well-grounded either

in fact or law.

As to the factual situation, on page 8 of the statement

of the case section of its petition for writ of certiorari in

the above-captioned matter, Petitioner states that “On Sep-

tember 13 1973, despite the pendency of Petitioner’s vari-

ance application which, as provided by the implementa-

tion plan, operated as an automatic stay of prosecution,

the Administrator issued to Petitioner a notice of viola-

tion . . . which asserted, inter alia, that Boiler No. 33 was

in violation of the sulfur emission standards contained in

the Pennsylvania implementation plan.”

DER and Goddard submit that, to the extent that an

“automatic stay of prosecution” existed on September 13,

1973 pursuant to §141.5 of DER’s rules and regulations,

this stay expired on September 19, 1973 when DER issued

an order to Petitioner requiring compliance with said sul-

fur emission standards on or before June 30, 1976 since

a stay of prosecution under §141.5 terminates under that

POOR COPY

fon tieantese eal

2 OL LBD I NOPE

2 Counter-Statement of the Case

section when DER acts upon the variance application.

Moreover, the DER order of September 19, 1973 which

appears as Exhibit A hereto and was presented to the

Court of Appeals for the Third Circuit (“Court of Ap-

peals”) as Petitioner’s Exhibit “B’’, was conditioned upon

Petitioner’s full compliance with a schedule or timetable

providing for the planning, purchasing, construction, and

installation on site of the necessary emission control equip-

ment.

There is no evidence in the record to indicate that

Petitioner has complied with any of the conditions set

forth in the variance order of September 19, 1973 and,

to the contrary, DER submits that Petitioner has not so

complied with those conditions. Thus, said variance order

itself forms no stay of prosecution. Moreover, Petitioner

appealed the order of September 19, 1973 to the Pennsyl-

vania Environmental Hearing Board pursuant to Pennsy]l-

vania’s Administrative Agency Law and Administrative

Code of 1929 and this Board has not yet issued an adjudi-

cation based upon said appeal. Pursuant to Section 1921-

A of the Administrative Code of 1929, 71 P.S. §510-1921-

A, no action of DER shall be final until a person aggrieved

thereby exhausts his right of appeal to the Environmental

Hearing Board. Therefore Petitioner cannot rely upon

said variance order, which is not yet a final order, as a

stay of prosecution.

Finally, DER would emphasize the material contained

in the footnote on page 10 of Petitioner’s petition for writ

of certiorari. As is noted there, the Petitioner has already

obtained from the Court of Appeals a stay of all EPA en-

forcement activities until thirty days following the disposi-

tion by said Court of Appeals of the Petitioner’s petition

pmritooeone TrTwopom

(iH

Counter-Statement of the Case 3

for review of the sulfur dioxide emission limitations con-

tained in the Pennsylvania implementation plan. To the

knowledge of DER the Court of Appeals has issued no

final opinion concerning said petition for review.

POOR COPVYV

Gti REGS: mee |

Bt EPR lg RNR a tee

PR LARGE RAZOR Roe ys

4 Request To Be Stricken as Parties

RESPONDENTS REQUEST TO BE STRICKEN AS PAR-

TIES SHOULD THIS COURT ISSUE A RULE 25

ORDER GRANTING THE REQUESTED WRIT

DER and Goddard recognize that they are deemed to

be parties before this Court in this matter pursuant to Rule

21(6) of this Court since they were at least nominal par-

ties before the Court of Appeals whose judgment is herein

sought to be reviewed. DER and Goddard further recog-

nize that this Court will not receive a motion to dismiss an

entire petition for a writ of certiorari, Rule 24(2).

Nevertheless, pursuant to Rule 24(2) this Court ap-

parently does consider objections to jurisdiction which

are presented, as here, in briefs in opposition to petitions

for certiorari.

Furthermore, it would appear that, along with an

order granting a writ for certiorari under Rule 25, this

Court could order that DER and Goddard be stricken as

parties.

DER and Goddard submit that those portions of the

lower Court opinions which dismissed the action below

as to them have not been raised as issues for review by this

Court. Wherefore, Petitioner should be deemed to have

waived its arguments with regard to the status of the

Respondents, DER and Goddard, as parties hereto by fail-

ure to raise these issues in its petition.

In support of this argument Respondent herein would

respectfully direct this Court’s attention to the following

portions of the record.

BLEED THR

UGH

Request To Be Stricken as Parties 5

In its opinion, reprinted as Appendix B to the Peti-

tioner’s petition beginning at 42a, the United States Dis-

trict Court for the Western District of Pennsylvania granted

the motions to dismiss of both DER and Goddard. A re-

view of the opinion beginning at 54a indicates that the

dismissal as to DER was on the basis of the Eleventh

Amendment to the Constitution of the United States while

that Court found it did not have jurisdictio: »ver Goddard

to require him to modify or amend the Pennsylvania state

implementation plan.

The Court of Appeals noted in its opinion as reprinted

at page 1la of the Petitioner’s petition that Petitioner’s

motion for reconsideration challenged only the dismissal

as to Goddard and not the dismissal as to DER. Thus,

Petitioner abandoned its attempts to implead DER at the

Court of Appeals level.

As to Goddard’s status, the Court of Appeals, as re-

ported on page 16a of the Petitioner’s petition, held that

“The APA [Administrative Procedure Act] provides, in

certain instances, for judicial review of agency action.

5 U.S.C. §701 (b) (1) defines ‘agency’ as ‘each authority

of the Government of the United States... .’ The APA

does not extend the state agencies. Thus, it could not af-

ford the District Court jurisdiction of West Penn’s suit

against Goddard, who is Secretary of a Pennsylvania

agency.” The reasons for granting the writ of certiorari

advanced by Petitioner do not assign as an error of the

Court of Appeals to be reviewed on certiorari by this Court

the aforequoted construction “agency action” under the

APA. No other ground of jurisdiction is pressed in said

petition. Thus, even if all of the arguments set forth in

Petitioner’s petition find merit with this Court, the deci-

POOR COPY

6 Request To Be Stricken as Parties

sion of the Court of Appeals to dismiss the action with

respect to Goddard and the decision of the United States

District Court for the Western District of Pennsylvania

to dismiss the action with regard to DER should stand as

the law of this case and these parties should be stricken as

parties to the instant action.

Whether or not this Court decides that DER and

Goddard should remain as parties to this matter, the fol-

lowing arguments address the issue of whether the writ

should be granted. If this Court decides that DER and

Goddard should be stricken as parties then the following

remarks are to be construed as the arguments of an amicus

curiae.

nrmicoerTe "LI

Reasons for Denying Writ 7

REASONS FOR DENYING THE WRIT

A. The issues raised in this appeal are moot. Pur-

suant to Rule 19 of this Court “A review on Writ of Cer-

tiorari is not a matter of right, but of sound judicial dis-

cretion, and will be granted only where there are special

and important reasons therefore.” Keeping this guiceline

in mind, it should be quite obvious that a writ of certiorari

should not be issued in a matter which has become moot.

In fact, such a situation would be the opposite of the situa-

tion necessitating the issuance of a writ since there would

be no important or special reason for the issuance of the

writ in a moot situation. The relief initially requested by

Petitioner in the District Court and then in the Court of

Appeals, to wit, an injunction against the enforcement of

a notice of violation issued by EPA unti! :t obtained a

declaratory judgment as to whether Petitioner’s “tall stack

strategy” could produce compliance with the Pennsylvania

state implementation plan, has, in fact, already been

granted.

As is noted on page 10 in the footnote of the Peti-

tioner’s petition and the counter-statement of the case here-

in, the Petitioner herein has also petitioned the Court of

Appeals for review of the Pennsylvania state implementa-

tion plan with regard to its tall stack strategy for meeting

sulphur dioxide emission standards and said matter is pend-

ing before the Third Circuit Court of Appeals.

Furthermore, as noted in the same footnote, on May

19, 1975 the Third Circuit Court of Appeals issued a stay

of all enforceme

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