OPINION OF THE COURT
ADAMS, Circuit Judge.
The pivotal issue in this appeal is whether the Administrator of the Environmental Protection Agency is vested with the authority to disapprove a state implementation plan, or one of its provisions, drafted pursuant to the Clean Air Act Amendments of 1970, when the Administrator has found such plan to be "technologically infeasible."
Under the Clean Air Act Amendments of 1970, the Administrator of the Environmental Protection Agency is directed to promulgate national primary
The states are each required to develop an air pollution control scheme by which the national ambient air quality standards may be achieved within each state. The implementation plan of each state must then be submitted for the approval of the Administrator.
Upon approval by the Administrator, the implementation plan developed by each state may be enforced by the Administrator, as well as the state. Under federal law, fines and sentences of imprisonment may be imposed on those who refuse to comply with the plan.
St. Joe Minerals Corporation operates a zinc-smelting plant at Monaca, Pennsylvania. These facilities emit sulfur oxides, which are the subject of ambient air quality standards established by the Administrator.
During December, 1971, the Commonwealth of Pennsylvania held four days of hearings focused on controlling sulfur oxide pollutants. The Commonwealth then submitted its implementation plan to the Administrator in January, 1972. The regulations published by the Administrator to assist the states in formulating their implementation plans included "Examples of Emission-Limitations Attainable with Reasonably Available Technology."
Pursuant to this Court's ruling, the EPA elected to conduct an administrative hearing on the feasibility of the plan. After considering written and oral presentations by St. Joe, the Commonwealth and the EPA staff, the Administrator, in a decision announced March 18, 1974, concluded that the Pennsylvania provisions relating to sulfur oxide emissions "as applied to St. Joe Minerals Corporation's smelter . . . [are] technologically infeasible." He therefore did not reach the question of economic feasibility. The Administrator, however, interpreted the Clean Air Act Amendments "as precluding any disapproval of the plan on that basis." He proposed instead to notify the Commonwealth of his finding of technological infeasibility and to request a revision. Furthermore, he proposed to stay federal enforcement of the plan pending state administrative and judicial review of the plan.
St. Joe petitioned this Court to review the Administrator's refusal to disapprove the plan, alleging that the Administrator's refusal was based on an erroneous construction of the law.
St. Joe contends that where the state has not provided an adequate hearing on the issues of the technological and economic feasibility of an emission limitation in a state implementation plan and the limitation has not been demonstrated to be essential to the achievement of a primary or secondary ambient air quality standard, the Administrator must disapprove the limitation when he has found it to be technologically or economically infeasible. The Administrator, on the other hand, argues that if the criteria set forth in section 110(a)(2)
Although judicial review of the actions of administrative agencies is limited in scope, the Administrator's approval of the sulfur oxide provision of the Pennsylvania implementation plan cannot escape review by the Court of Appeals if the agency's decision is founded upon an incorrect conclusion of law.
There appears to be no opinion which squarely addresses the precise issue
The Court's earlier decision in Getty Oil Co. v. Ruckelshaus
While the state was so restrained, however, the EPA ordered Delmarva to comply with the implementation plan EPA had already approved. Getty asked this Court to review the compliance order. That order, Getty alleged, deprived Getty of due process because national primary air quality standards had already been met in the area without compliance, and because compliance, prior to the development of alternative technology, would therefore impose an unreasonable economic burden on Getty and Delmarva. Significantly, this Court held that Getty at that time was barred from obtaining judicial consideration of its claims of technological and economic infeasibility since Getty could have obtained such review at the time EPA approved the implementation plan. Section 307(b),
An essential underpinning of this Court's decision in Getty Oil was the conclusion that the Court could have considered technological and economic objections to the state implementation plan when the EPA approved it. If a court of appeals is empowered to review, and presumably reverse, the Administrator's approval on technological and economic grounds, then surely the Administrator has the authority to review the plan on those same grounds and disapprove the plan, or a portion of it, if he finds it unreasonable.
The Court of Appeals for the Fourth Circuit has reached a similar conclusion with respect to the function of the EPA when it considers implementation plans.
The Sixth Circuit, like this one, has compelled the EPA to allow interested parties an opportunity to present to the EPA their claims that a proposed implementation plan is technologically or economically impracticable.
Admittedly, the Act does not expressly empower the agency to disapprove a plan where restrictions are too narrow to be practicable. Certainly, however, Congress would have made its purpose more explicit if it had intended by section 110(a)(2) to limit the Administrator's authority so as to require him to effectuate an implementation plan even though compliance with such plan is technologically infeasible and the constraints in the plan have not been shown to be essential to the accomplishment of the national standards.
A review by the EPA of the feasibility of an implementation plan is not inconsistent with the statutory language. The Administrator is directed to determine whether an implementation plan provides for the attainment of primary ambient air quality standards "as expeditiously as practicable" and secondary standards within "a reasonable time."
Disapproval of an implementation plan for technological reasons is not, as the Administrator argues, barred by section 116.
The purport of section 116 is merely to permit the state, under state law, to enforce stricter pollution controls than those that are included in the EPA-approved implementation plan, while prohibiting the states from adopting any measures less restrictive than the applicable federal implementation plan. Section 116 does not prevent the Administrator from adopting in an implementation plan a restriction which is less severe
Also, the procedures for evaluating an implementation plan prior to the Administrator's acceptance of it reflect the importance of technological and economic factors not specifically mentioned in section 110. The Administrator is given four months to review the plan proposed by the state.
The effect of the Administrator's approval is not, as the agency has claimed, nullified by the Administrator's statement that he will stay enforcement of the plan by the EPA pending reconsideration by the Commonwealth. The decision to stay is not binding on a successor to the present Administrator. Indeed such a stay would not be enforceable by St. Joe even against the present Administrator. Moreover, St. Joe is left vulnerable to private civil actions, authorized by the Act, that might be brought to enforce compliance by St. Joe with the approved implementation plan.
For the foregoing reasons, the approval by the Administrator will be vacated and the matter remanded to the Administrator for action consistent with this opinion.
(b)(1) . . . A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 1857c-5 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, approval, or action, or after such date if such petition is based solely on grounds arising after such 30th day.
(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.
Moreover, section 116 is derived from section 109 of the Air Quality Act of 1967, P.L. 90-148, which provided: