Brief for the Respondent in Opposition — West Penn Power Co. v. Train

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-974

WEST PENN POWER COMPANY, PETITIONER

v.

RUSSELL TRAIN, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la

to 42a) is reported at 522 F.2d 302. The opinion

of the district court (Pet. App. 43a to 59a) is re-

ported at 378 F. Supp. 941.

JURISDICTION

The judgment of the court of appeals was entered

on July 16, 1975, and a timely petition for rehear-

(1)

ing was denied on August 15, 1975. On October 31,

1975, Mr. Justice Brennan extended the time in

which to file a petition for a writ of certiorari to

and including January 12, 1976. The petition was

filed on January 9, 1976. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Administrator of the Environ-

mental Protection Agency has the authority to dis-

approve a variance to a State’s clean air implementa-

tion plan granted by state officials.

2. Whether Section 10 of the Administrative Pro-

cedure Act grants subject-matter jurisdiction to the

district courts to review agency action.

3. If it does, whether the issuance of a notice of

violation is reviewable under the Administrative Pro-

cedure Act.

STATEMENT

On September 13, 1973, pursuant to Section 113

(a)(1) of the Clean Air Act, as amended, 42 U.S.C.

1857¢e-8(a)(1), the Administrator of the Environ-

mental Protection Agency sent petitioner a notice

that Boiler No. 33 at petitioner’s Mitchell Power Sta-

tion was in violation of the regulations of the Penn-

sylvania air quality implementation plan limiting

emissions of sulfur dioxide and particulates (Pet.

App. 3a to 5a). Petitioner filed suit in the district

court, seeking an injunction and declaratory judg-

ment against this notice of violation. It argued that

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the Pennsylvania plan should have permitted the use

of tall stacks as a method of meeting the sulfur di-

oxide restrictions in the plan.’ It also contended that

federal enforcement of the Pennsylvania implementa-

tion plan should be barred because petitioner had

been granted a temporary variance by the Pennsyl-

vania Department of Environmental Resources (Pet.

App. 5a, 43a to 44a).*

The district court dismissed the action for lack of

jurisdiction. It held that, insofar as petitioner was

attacking the Pennsylvania plan, it had waived its

right to review in the federal courts by not filing a

timely petition to review the Environmental Protec-

*The plan’s imposition of emission limitations for sulfur

dioxide required petitioner either to install pollution control

equipment (“scrubbers”) on its stacks or to use low-sulfur

fuel. Two courts have held that the use of tall stacks alone is

insufficient to comply with the emission limitations of a state

implementation plan. Big River Electric Corp. v. Environ-

mental Protection Agency, 523 F.2d 16 (C.A. 6), certiorari

denied, No. 75-774, April 19, 1976; Kennecott Copper Corp. Vv.

Train, 526 F.2d 1149 (C.A. 9), certiorari denied, No. 75-1029,

April 19, 1976.

* On September 19, 1973, the Pennsylvania Department of

Environmental Resources granted petitioner a temporary

variance, which extended the compliance deadline for emission

of sulfur compounds from Boiler No. 33 to June 30, 1976,

while requiring the installation of flue gas desulfurization

equipment (a scrubber) or conversion to low-sulfur fuel.

This variance has not been approved by the Environmental

Protection Agency, because the variance extended beyond

July 31, 1975, the date for attainment of the primary ambient

air quality standard for sulfur oxides (Pet. App. 5a). See 40

C.F.R. 51.15(b) (1); Train v. Natural Resources Defense

Council, Inc., 421 U.S. 60.

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tion Agency’s approval of the plan. It also held that

the state-granted variance was ineffective to bar fed-

' eral enforcement of the implementation plan because

Section 110(a) (3) of the Act, as amended, 42 U.S.C.

1857c-5(a) (3), provides that variances must be sub-

mitted by the Governor of the State to, and approved

by, the Environmental Protection Agency.

A divided court of appeals affirmed, although on

different grounds. The court concluded that peti-

tioner was not attacking the implementation plan

itself, and so review was not affirmatively precluded.

On the other hand, the court held that there was no

jurisdictional basis for petitioner’s suit against the

Administrator’s issuance of a notice of violation. Pe-

titioner’s arguments could be raised, the court held,

' as a defense to any judicial proceedings that the

Administrator might commence to obtain compliance

* with the implementation plan.

} On March 20, 1975, prior to the court of appeals’

+ decision, petitioner filed a petition for review of the

Pennsylvania implementation plan relating to the

snc

control of the emissions of sulfur dioxide at its

Mitchell Power Station. On May 19, 1975, the court

of appeals entered a stay of federal enforcement

pending its resolution of the issues raised in the

petition for review. The court of appeals has not

_ yet decided the case, and its stay of enforcement

i remains outstanding.

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ARGUMENT

1. Petitioner contends that the Court should grant

review in order to decide the question whether a

state-granted variance, without federal approval of

the variance, is sufficient to bar federal enforcement

of an implementation plan. But the Court already

has resolved that question in Train v. Natural Re-

sources Defense Council, Inc., 421 U.S. 60, 93, which

pointed out that the Administrator is entitled to

review state-granted variances to ensure compliance

with the national primary ambient air standards.

The court of appeals relied on that decision in ruling

that a state-granted variance is not effective to pre-

vent federal enforcement of the plan’s provisions

unless the variance is approved by the Environ-

mental Protection Agency, pursuant to Section 110

(a) (3) of the Clean Air Act, 42 U.S.C. 1857¢-5(a)

(3). See Pet. App. 5a, 14a, n. 28. The statute is

clear; there is no conflict among the circuits and no

reason for review by this Court.

2. Petitioner contends that the Court should re-

solve the conflict among the circuits on the ques-

tion whether Section 10 of the Administrative Pro-

cedure Act, 5 U.S.C. 704, grants subject-matter juris-

diction to the district courts to review agency action.

We agree with petitioner that this conflict should be

resolved, and the Court granted on June 1, 1976,

our petition in Mathews v. Sanders, No. 75-1443,

which presents this issue. We submit, however, that

it is not necessary to defer disposition of this case

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pending the Court’s decision in Sanders, for there

is no subject-matter jurisdiction over petitioner’s

claims whether or not the Administrative Procedure

Act is a grant of jurisdiction.

3. Assuming arguendo that the Administrative

Procedure Act contains a grant of subject-matter

jurisdiction, the court of appeals correctly held that

judicial review is nevertheless not available to pe-

titioner because * the issuance of a notice of violation

is not a final action subject to review (Pet. App. 16a

to 18a). This basis for the court’s decision is sup-

ported by settled principles and does not warrant

further review.

The issuance of a notice of violation is simply the

first step in an administrative decision-making

process. It is, in effect, a decision to “charge” that

a violation has occurred, and is no more a “final”

decision than is a prosecutor’s information or the

decision of the Federal Trade Commission to issue

a proposed complaint. It is the beginning of the

administrative process, not the end. The court of

appeals correctly observed (Pet. App. 17a to 18a):

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.

§ 1857¢-8(a) (1), but “shall not take effect until

the person to whom it is issued has had an

3’ The court also said that the Administrator’s decision to

issue a notice of violation is a discretionary action and there-

fore unreviewable. But cf. Dunlop v. Bachowski, 421 U.S. 560.

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opportunity to confer with the Administrator

concerning the alleged violation,’ 42 U.S.C.

§ 1857¢e-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 law.’ Columbia Broad-

casting System v. United States, 316 U.S. 407,

418 (1942). The notice bears no resemblance to

the Food and Drug Administration regulations

which were found reviewable in Abbott Labora-

tories [v. Gardner, 387 U.S. 136] 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,”

“definitive,” “effective upon publication” and

“self-executing.” 387 U.S. at 151, 171. * * *

By contrast, the only effect of a notice of viola-

tion is to make the recipient aware that the

“definitive” regulations are not being met and

to trigger the statutory mechanism for informal

accommodation which precedes any formal en-

forcement measures. Of course, the plan’s emis-

sion standards themselves are analogous to the

regulations reviewed in Abbott Laboratories, but

those regulations are not challenged on this

appeal.

In short, the issuance of a notice of violation simply

begins the administrative process. It imposes no

coercive sanction, and it is subject to further ad-

ministrative review before enforcement proceedings

can be commenced in court. Petitioner’s proper re-

course is to make, in an enforcement action, the sub-

stantive arguments it has attempted to make here.

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Accord: Federal Trade Commission v. Claire Furnace

Co., 274 U.S. 160, 173-175; St. Regis Paper Co. v.

United States, 368 U.S. 208, 225-227; Reisman v.

Caplin, 375 U.S. 440, 445-450.

CONCLUSION

The petition for a writ of certiorari should be

denied.

F Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

JUNE 1976.

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WX ou. S. GOVERNMENT PRINTING OFFicE; 1976 209089 263