Certiorari Denied January 15, 1973. See 93 S.Ct. 937.
OPINION OF THE COURT
JAMES ROSEN, Circuit Judge.
This appeal is taken from an order of the district court 342 F.Supp. 1006, denying applications for preliminary and permanent injunctions and a temporary restraining order staying the effect of a compliance order issued by the Administrator of the Environmental Protection Agency (EPA). The Administrator issued the order pursuant to Section 113 of the Clean Air Act as amended by the Air Quality Act of 1967 and the Clean Air Act amendments of 1970, 42 U.S.C. § 1857 et seq.
Getty operates an oil refinery in Delaware City, New Castle County, Delaware. One of the by-products of its refinery operation is fluid petroleum coke. Delmarva Power and Light Company (Delmarva) operates a power station for Getty. The power station was designed to burn fluid coke along with either fuel gas or oil. Delmarva burns the fluid coke produced by Getty under a long term contract with Getty and thereby supplies the electricity and steam requirements of the refinery.
On October 13, 1970, after a public hearing on proposed air pollution regulations
On August 4, 1971, Regulation IX was approved along with other sections of Delaware's implementation plan by the Administrator of EPA. As the court below noted in its opinion of May 10, 1972, "[w]hile this approval received substantial publicity at the time and presumably came to Getty's attention shortly after the action was taken, notice of the approval was not published in the Federal Register until February 3, 1972."
Since approval by the EPA of Delaware's implementation plan no petitions for review of the Administrator's action have been filed pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 1857h-5,
On September 28, 1971 Getty submitted a request to the Secretary of Natural Resources and Environmental Control of the State of Delaware for a "variance" from the January 1, 1972 effective date of the regulation. 7 Del.C. § 6007. The basis for the application was simply that, since the national primary standards for sulphur dioxide were already being met in New Castle County, there was no compelling reason why Getty should not be given additional time to meet the emission standards of Delaware's implementation plan.
On December 29, 1971, Getty instituted an action in the Delaware Chancery Court seeking a temporary restraining order against enforcement of the challenged regulation by the state Secretary pending disposition of Getty's appeal to the Delaware Water and Air Resources Commission. The restraining order was granted on December 30, 1971.
On February 14, 1972, Region III of the EPA sent a certified letter to Delmarva pursuant to section 114(a) of the Clean Air Act requesting information dealing with the sulphur content of fuel burned by Delmarva during January, 1972. Delmarva submitted the requested data on February 18, 1972, and later updated the information contained in the February 18 letter by submitting data for February and March 1972. For each month the data submitted indicated a violation of Regulation VIII in that the total content of the sulphur by weight exceeded 3.5%. The Administrator notified Delmarva of the violations by registered letter dated March 6, 1972. On March 20, 1972 a conference was held with representatives of the EPA and Delmarva. 42 U.S.C. § 1857c-8(a)(4). Getty requested and was given permission to attend the conference. As a result of the data supplied by Delmarva, the EPA concluded that a violation of the subject regulation had occurred "in that Delmarva was burning, at its Delaware City, Delaware power station, fuel with a sulphur content in excess of 3.5% by weight."
The district judge expressed his conception of Getty's application in this fashion:
The compliance order is alleged to be arbitrary, capricious and unwarranted by the facts. Its enforcement prior to a due process hearing would, Getty claims, amount to a taking of property without due process of law. Getty also alleges invalidity of the order due to non-compliance with the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.
The Administrator's position is that, inasmuch as Getty is attacking the regulation as being unnecessary and therefore unreasonable and unconstitutional, pre-enforcement judicial review of the compliance order is foreclosed by section 307(b), 42 U.S.C. § 1857h-5. Getty disagrees with the Government's statement of appellant's position, emphasizing its neutrality regarding the regulation on which the compliance order is based:
Getty argues that the regulation is unnecessary because the national primary standard has already been achieved in New Castle County, and that the economic burdens imposed by the regulation when compared to environmental benefits render the regulation wholly arbitrary and unreasonable. The district court recognized that such attacks upon the Administrator's approval of a regulation can only be asserted in a section 307 proceeding. However, the court concluded that the Clean Air Act as a whole did not foreclose pre-enforcement review because Getty was raising issues which would not be raised in a section 307 proceeding.
It was unnecessary for the district judge to determine whether the Clean Air Act as a whole precludes preenforcement judicial review by necessary implication. Getty was in the wrong court by virtue of section 307 of the Act. The Declaratory Judgment Act and APA could not afford a basis for jurisdiction.
Mindful as we are of the principle enunciated in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), that courts should restrict access to judicial review only upon a showing of "clear and convincing evidence" of a contrary legislative intent, we are equally impressed by Justice Frankfurter's admonition that "[s]tatutes * * * are instruments of government, and in construing them `the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down.' * * * This is so because the purpose of an enactment is embedded in its words even though it is not always pedantically expressed in words." United States v. Shirey, 359 U.S. 255, at 260-261, 79 S.Ct. 746, 749, 3 L.Ed.2d 789 (1958).
The Constitution requires an opportunity at a meaningful time and in a meaningful manner for a hearing appropriate to the nature of the case. "The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Boddie v. Connecticut, 401 U.S. 371, at 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); see also Ewing v. Mytinger and Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950).
A review of the tangled procedural history preceding Getty's institution of this suit convinces us that due process has been satisfied. First, Getty appeared at Delaware's hearing on the proposed implementation plan for attainment of air quality standards and argued against adoption of Regulation VIII. After approval by WARC, Getty had an opportunity to appeal the adoption of the regulation to the state Superior Court. It chose instead to seek a variance with the Secretary of Natural Resources and Environmental Control. The Secretary denied the application and Getty took an appeal to WARC. That appeal is still pending. The Administrator's adoption of Delaware's plan, and specifically Regulation VIII, received wide publicity in the media, and presumably came to Getty's attention in the fall of 1971. No appeal was taken from the Administrator's approval of the implementation plan to the Court of Appeals, as provided by the Clean Air Act. Instead, Getty chose to seek a restraining
The close case alluded to by the district court presents no problem, keeping in mind that in an enforcement proceeding, the burden of establishing a violation of the applicable regulation would be carried by the Government.
The district court noted that when the issue concerns timing of judicial review rather than the existence of said review, the procedures which must be afforded to an individual further depends upon the governmental interest in summary enforcement. There can be no question that the primary and secondary air quality standards serve substantial governmental interests—in the case of primary standards, protection of the public health; in the case of secondary standards—protection of the public welfare from any known or anticipated adverse effects associated with the presence of a specified air pollutant in the ambient air. 42 U.S.C. § 1857c-3.
The Administrator has a responsibility to see that a state plan will meet the national standards. Because of that responsibility, he has a vital interest in determining whether a particular deferral will have the effect of preventing attainment or maintenance 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 approved implementation plan.
Getty's protestations of good faith attempts to find suitable technology which would enable it to comply do not affect the Administrator's duty of enforcement. Likewise, the conditions established for postponement of compliance in 42 U.S.C. § 1857c-5(f)(1) are not available to Getty in any event.
Appellant's efforts to establish the lack of necessity for early compliance due to the existence of primary air quality in Delaware must fail. Section 110 of the Clean Air Act requires that state air implementation plans attain primary standards. It does not preclude such standards from being exceeded. Further, section 110(a)(2)(A)(i) provides that standards be achieved as expeditiously as practicable, but in no case later than 3 years from the date of approval of such plan. Getty's application for a variance envisions developing technology suitable for compliance to be available by 1976. The Clean Air Act allows, as an alternative to compliance with a secondary criterion, the use of emission control devices
Appellant's remaining argument is that EPA's failure to file an environmental impact statement pursuant to section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C), renders the Administrator's compliance order ultra vires. Even if we were to agree with Getty's premise that EPA is subject to the NEPA requirement,
Finally, the Administrator is given the responsibility of making policy reviews under 42 U.S.C. § 1857h-7, annual comprehensive economic cost studies under 42 U.S.C. § 1857j-1, and periodic reports to Congress under section 1857j-2. It is apparent that the Clean Air Act itself contains sufficient provisions for the achievement of those goals sought to be attained by NEPA.
We conclude that Getty's belated effort to attack Regulation VIII in the guise of pre-enforcement review of the compliance order is precluded by section 307 of the Clean Air Act. This appeal is a paradigm of confession and avoidance.
The case will be remanded to the district court with directions to enter an order of dismissal for lack of jurisdiction.