OGC pleadings
manual.
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360R83002
|> £% \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I * WASHINGTON, D.C. 20460
August 2, 1983
MEMORANDUM
SUBJECT: Pouch Mail/Pleadings Manual
M. Haythe
Coordinator
FROM: Winston
Regional
TO: Regional Counsels, Regions I through X
The enclosed manual, as its introduction states, is a
starting point for Regional and Headquarters attorneys who
must prepare pleadings for filing in federal courts.
Your assistance is requested in keeping the manual
useful and up-to-date.
Please send examples of pleadings suitable for inclusion
in the manual to Mr. Alan Eckert, Senior Litigator, whose
complete address is shown at the bottom of the first page.
cc: Alan Eckert
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360R83002
INTRODUCTION
This manual is intended to provide a starting point for
regional and headquarters EPA attorneys who must prepare
pleadings for filing in district courts or courts of appeals.
Most of the pleadings are excerpted from defensive briefs,
but several — such as those that generally describe a statutory
scheme — are equally suitable for enforcement pleadings.
These excerpts are, with few exceptions, unsuitable for
filing without revision. They are tailored to the facts of a
particular case, and the law of a particular circuit or even
district. Of course, this law varies from circuit to circuit
and changes as new decisions are handed down, and the attorney
using this manual must therefore conduct the research necessary
to rewrite these examples to fit a particular case.
This is not a comprehensive list of all pleadings that
an OLEC attorney will need to draft. Neither are these
necessarily the best examples of pleadings in the areas
selected. They are simply the ones the compiler discovered.
Please help to keep this manual useful and up-to-date by
sending current examples of pleadings suitable for inclusion
in the manual to the following address:
Senior Litigator
Office of General Counsel (LE-130)
Environmental Protection Agency
Washington, D.C. 20460.
00001
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TABLE OF CONTENTS
Pages
I. General Pleadings
A. Jurisdiction and venue
1. Courts of Appeals
a. Statute of limitations in statutory
review provisions (CWA §509, CAA §307
etc. ) 164-167
2. District Courts
a. Dismiss district court complaint to
review action covered by statutory
exclusive review 90-96
b. Dismiss citizen suit for failure to veto
NPDES permit 182-192
c. Dismiss citizen suit seeking EPA
enforcement on grounds that enforcement
discretionary — 182-192
d. Dismiss citizen suit for failure to give
requied 60-day notice 211
e. Dismiss citizen suit seeking to review-
discretionary administrative action 35-38
f. Mandamus does not lie to compel issuance
of NPDES permit 206-210
g. APA does not confer jurisdiction 39-45
h. No implied private right of action under
CWA ; 39-4 5
i. No diversity jurisdiction over
Administrator 181
j. 28 U.S.C. 1331 does not provide cause
of action 193-195
k. §1331 and other statutory bases for
jurisdiction unavailable for review
of alleged failure to perform
non-discretionary duty 39-45
00002
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Pages
1. §1337 jurisdiction unavailable
if another remedy at law 196-197
39-45
ro. Declatory Judgments Act not
Jurisdictional 198-199
(3rd Cir.) 215-216
n. Federal district court lacks
jurisdiction on removal if state court
lacked jurisdiction 8-10
B. Case or Controversy Requirements
1. Standing
a. In general 97-99
2. Ripeness
a. Scope of final regulation not ripe
for review until regulation issued 107-113
b. Clean Water Act 174-177
c. RCRA 145-149'
3. Exhaustion
a. In general — 171-173
4. Mootness
a. In general 70-71
5. Finality
a. NPDES permit in processing 168-170
b. Finality requirement of
CAA S307(b)(1) 107-113
C. Standard of Review
1. Rulemaking
a. "Arbitrary and capricious"
(SIP case) 114-116
b. CWA §307(d)(9) 100-102
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Pages
2. Adjudication
a. Substantial evidence (TSCA penalty) 162-163
3. Preliminary, induction
a. Third Circuit 213-214
4. Stay or Injunction Pending Appeal
a. Injunction pending appeal 82-84
b. Stay pending appeal 200
5. NEPA
a. Decision not to prepare EIS 62-63
b. Discussion of alternatives 54-61
D. Scope of Review
1. Administrative record
a. Court must exclude extra-record
affidavits from record 51-53
E. Administrative procedure
1. Notice and Comment
a. Adequacy of notice and "logical
outgrowth" rule 201-205
2. Right to evidentiary hearing
(example needed)
F. Constitutional attacks on rulemaking
1. Fifth Amendment "Taking"
a. Regulatory actions do not effect taking
and plaintiff relegated to remedy under
Tucker Act 126-130
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Pages
G. Other defenses
1. Sovereign Immunity
a. Generally —¦ 11-13
b. State law claims 14-21
c. Monetary claims for damages against
individual officers 22-30
d. Non-constitutional tort claims against
individual officers 6-7
2. Deference of Administrative Construction
a. Generally 212
II. Particular Statutes
A. Clean Air Act
1. Statutory background (SIP case) 31-34
2. Statutory background (non-attainment) 131-136
3. Statutory background (NSPS) 117-125
B. Clean Water Act
1. Statutory background (BCT) 72-81
2. Statutory background (pretreatment) 64-69
3. Statutory background (NPDES permit) 85-89
4. Statutory background (POTW permit) 46-50
C. RCRA
1. Statutory background (permit) 150-154
2. Statutory background (interim status) 137-144
D. Safe Drinking Water Act
1. Statutory background (sole source aquifer) 145-149
2. Statutory background (primary drinking
water regulation) 160-161
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construed Co have some relationship to the statc^letfF Involved,
jth$ complaint should still be disjni»s€cnor the teasons advanced
by Che State defen^wvcs, at pp. 26-27 of their Memorandum In
Suppor£^0f~~flotion to Dismiss Complaint. J
(G) As Public Officials. The Federal A^«-n#-W
Defendants Are Absolutely Immune From /»r/s - i*Jii/i
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Bowman, supra. 388 F.2d at 760. Accord. Bush v Lucas. 598 F.2d
958, 960 (5ch Cir. 1979); Expedition Unlcd. v. ^mithsonlan Inst..
566 F.2d 289. 293-295 (D.C. Cir. 1977).
This absolute privilege from damages
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/H'f41 z-
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IIk THE FEDERAL DEFENDANT'S MOTION TO DISMISS
SHOULD Bli GRANTED IF THE STATE COURT LACKED
JURISDICTION OR THE COMPLAINT FAILS TO STATE
A CLAIM UPON WHICH RELIEF CAH BE GRANTED.
This eulc is before this Court L), cert, dented
sub nom.. Martinez v. Udall. 366 U.S. 946, Bl S.Ct. 1677, 6
L.Ed.2d 856 (1961); Walllngford Steel Co. vl Wire and Metal
Specialties Corp.. 347 F.Supp. 1310, 1311-1^12 (VJ.D. Pa. 1972).
7/ Minnesota v. United States. 305 U.S. 382, 389, 59 S.Cc.
292. 83 L.Ed. 235 (1939); Steele v. G.PJ Searle & Co.. 483
F.2d 339, 342 (5th Cir. 1973), rchuarinR denied on banc. 485
F.2d 688. ccrt. denied 415 U.S.Tid, 94 a.t'e. UAb3fTL.Ed.2d
572 (1974)7*TTaplocon v. $2.438.110. 454 F.2d 1210, 1213 (3d
Cir. 1972), ccrt. denied sub nom.. Staoleton! v. United States.
409 U.S. 8947 93 i.Ct. 111. 3^» L.Ed.2d 151 01972); Adans v.
State Farm Mutual Auto. Ins. Co.. 313 F.Supp,. 1349, lJ5a
(N.D. Miss. IH/OT'
00008
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Thus, when it Is determined ithac Che scace court from
which Che case was removed lacks jurisdiction, the federal
eourc should dismiss che action as Co p federal official
like the defendant Woods. Jaco'bson v. Tahoe Regional Authority.
566 F.2d 1353, 1362. (9th Clr. 1977), mdid. on other grounds.
440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 40 (1979); Gleason.
supra. 458 F.2d 1171j 1174; Brown supra J 373 F.Supp. 973,
975; 1A Moore's IFed.' (Practice 1Q.164(2)1, n. 41.
The procedure for testing subject Batter Jurisdiction
after removal is! governed by the. FeceratL Rules of Civil
Procedure. Fed.R.Civ.P. 81(c); ilA Moore's. supra at 10.157(10.-
1). Indeed, all grounds available for dismissal of a case
under the Federal Rules are available following removal,
including those at Fed.R.Civ.P. 12(b). |Seal v. Industrial
Electric, Inc.. 362 F.2d 788, 789 (5th Clr. 1966); 1A Moore's,
supra. at 10.157(10.-1), n.16. A removed case, therefore,
should be discussed under Fed.R.Civ.P. 12(b), If either the
state court lacked subject matter jurisdiction or the plaintiffs'
Complaint-fails to state a claim upon which relief can be
granted. Seal. supra, 362 F.2d 788, 789,
Since the plaintiffs have failed to either establish
that the Alabama state court had subject matter jurisdiction
over the defendant Woods or show that the Complaint states a
valid claim for relief against Woods, the federal defendant
moves for dismissal under Fed.R.Civ.P, 12 b)(l), (6). In
assessing whether Che moeion should be granted for lack of
subject matter jurisdiction, this Court must carefully scrutinize
Che plaintiffs case. Fed.R.Civ.P. 8(a) (ll) requires that
the Complaint contain a proper allegation bf jurisdiction
for there is no presumption of subject matter Jurisdiction.
5 Wright, Miller & Cooper, Fed. Practice & Procedure 11260
at 75 (1969). The burden of establishing Jurisdiction lies
00009
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;jL-zur-mrn
vith the plaintiffs Ray v. Bird & Son Asdet Realization
Co.. Inc.. 519 F.2cl 1081, 1082 (5th Cir. 1975); Bowman v.
White. 388 F.2d 756, 760-761 (4th Cir. 19<>fl), cert, denied
sub bob.. Bowman v. First Nat'l Bank of Harrisonburg, 393
U.S. 891, 89 S.Ct. 214, 21 L.Ed.2d 172 (1968). The basis
for Jurisdiction cannot be supplied arguneintatively or by
inference. Amalgamated Ass'n of St.. Eled.. Ry.¦ and Motorccsch
employees. Div. No.!' 1127 y. Southern Bus 1 lines. Tnc., 189
F.2d 219 (5tn Cir. 1951)'; Wright, Miller &j Cooper, aupra.
S1260 at 79. Mere iconclusory allegations |in a complaint
are Insufficient to' establish jurisdiction!. Burgess v.
Charlottesville Savings & Loan Ass'n. 477 F.2d 40, 43 (4th
Cir. 1973).
Similar close scrutiny should bei given to the
question of whether plaintiffs have pleaded a claim for relief
against the defendant Woods. In making th£t decLsion under
Fed.R.Civ.P. 12(b)(6), the Court should deen as true all of
plaintiffs' well-pleaded facts, but no such presumptive truth
*
attaches to other allegations. Martenson .y. First Fed.
Savings & Loan Ass'n. 549 F.2d 884, 891 n.4.6 (3d Cir. 1977).
Conclusions of law, eonclusory allegations * or unwarranted
deductions of fact are not deemed admitted. Davidson v. State
of Georgia. 622 F.2d 895, 897 (5th Cir. 1980); Associated
Builders v. Alabama Power Co.. 50'5 F,2d 97, 100 (5th Cir..
1974); Ward v. Hudnell, 366 F.2d 247 (5th Cir. 1966).
Applying the foregoing principles, this Court will find
that the Complaint should be dismissed as qo the federal
defendant.
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58
2. The State Law Causes Of Action Against
The Federal Defendants Are, In Effect,
Claims /.gainst The United States And Must
Be Dismissed Under The Doctrine Of Sovereign
Immunity
Even if the federal defendants, as "instruments of the
United States", were not themselves immune from State lav under
the principles discussed at Part ZI F-l, supra, the plaintiffs'
state law claim must still be dismissed under the doctrine of
sovereign immunity. The nature of relief which plaintiffs seek
from the federal defendants would, for all practical purposes,
have to be granted by the United States Itself. In such
circumstances, suit against federal agency officials is deemed as
one against the sovereign United States. Such a suit Is
barred, In the absence of an express federal statutory waiver of
sovereign immunity. No such waiver exists here.
It has long been established, .of course, that the
United States, as sovereign, 'is immune from suit
save as it consents to be sued ... and the terms of
its consent to be sued in any court define this court's
lurisdiction to entertain the suit.' United Stages v.
Sherwood. 312 U.S. 584, 586 (1941). :
United States v. Testan. 424 U.S. 392, 399, 47 LEd2d 1114, 1121,
96 SCt. 948 (1976); Accord. Brown v. GSA, 425 U.S. 820, 827, 48
L.Ed. 2d 402, 408, 96 S.Ct. 1961 (1976). Since, as explained
above, there is no federal statute applicable to this case by
which it could be said Congress meant to apply state law to the
actions of the federal defendants, plaintiffs' state law claims
are barred by sovereign immunity, If the suit is, in effect, one
against the United States ltelf. Brown v. GSA, supra; Taylor v.
Cohen. 405 F.2d 277, 281-2 (4th Cir. 1968); Switzerland Co. v.
Udall. 337 F.2d 56, 62 (4th Cir. 1964), cert, den., 380 U.S.
914.
Three alternative principles apply to determine whether
a suit against a federal official is deemed to be one against the
United States itself, for the purposes of applying sovereign
4
• ¦ *
A f a*4 k<* f
00011
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UaU=lP-7». JftLTg
Tlliiiiiititiftiiilittlfliij
... the general rule Is chat a suit is against the
sovereign if 'the' Judgment sought would expend itself
on the public treasury or interfere with public adminis-
tration. Land v. Dollar. 330 U.S. 731. 738. 91 L.Ed.
1209, 121FTT7 S.Ct. 1009 (1947), or if the effect of
ths judgment would be to restrain the Government from
acting, or to compel it to act.' Larson v. Domestic
& Foreign Commerce Corp.. (337 U.S. 632, 704, S3 L.Ed.
1628, 69 S.Ct. U57~rT949); Re New York, 256 U.S.
490, 492, 65 L.Ed. 1057, 1062, 41 S.Ct. 588 (1921).
Dugan v. Rank, 372 U.S. 609, 620, 10 L.Ed. 2d 15, 23-24, 83 S.Ct.
999 (1963). Accord. Brown v. CSA, supra. Under any of these
principles, plaintiffs' state lav claims against the federal
defendants must be held as a suit against the United States.
First, in so far as plaintiffs seek to have the federal
defendants themselves clean-up Che oil, the judgment involved
would "expend itself on the public treasury or domain." See
Dugan v. Rank, supra. 372 U.S. at 620-1, 10 LEd2d at 23-24
(suit against Bureau of Reclamation Officials is suit against
United States where injunction would require money to be spent
to build dams}; Switzerland Co. v. Udall. supra, 337 F.2d at
56. Further, to require the federal defendants to institute
civil suits against the private defendants would result in a
Judgment Chat "interferes with public administration" (Dugan v.
Rank, supra), since suits seeking relief in the nature of
specific performance to compel government officials to act are
deemed to affect "the public administration" and are against the
United States. Accord; Hawaii v. Cordon. 373 U.S. 57, 83 SCt. 1052,
10 L.Ed2d 191 (1964) (to same effect in suit to compel census
officials to act); Kennedy v. Rabinowitz, 318 F.2d 181, 183
(D.C. Cir. 1963) (suit is against U.S. when relief would be
directed to Attorney General's decisions of whether to prosecute).
In addition, relief which either required the federal
defendants to clean-up of the oil or to file enforcement
suits would be relief "to compel" the government "to act." (see
Larson v. Donestic & Foreip.n Commence Corp. , supra: Dugan v.
00012
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Rank, supra). and thus, be deemed against Che United States itself.
Finally, the payment of monetary damages, running to the tens of
billions of dollars under plaintiffs* claims, would also be
relief against the United States, since any Judgment of such a
magnitude would have to be paid from the U.S. Treasury, if at all.
Dugan v. Rank, supra. 372 U.S. at 620, 10 LE2d at 23-24; Unimex. Inc.
v. U.S. Dept. of Housing. 594 F.2d 1061, 1061-2 (5th Clr. 1979)(case
Involving attempt to obtain large monetary damages from Secretary
of Housing is against the United States)
Since the nature of the relief sought against the
federal defendants would thus burden the United States, the
plaintiffs' state law claims are against the sovereign. It does
not matter, in reaching this result, that the plaintiffs allege that
Che federal defendants acted wrongfully or in violation of
atate law. Dugan v. Rank, supra. 372 U.S. at 621, 10 L.Ed2d at 24-25;
Larson, supra. 337 U.S. at 693, 93 L.Ed, at 1638• "The fact
that the officer may have erred in exercising discretion does
not deny immunity to the sovereign." Taylor v. Cohen. supra. 405
F.2d at 281. The plaintiffs' state law claims are barred by
sovereign immunity, and dismissable for want of subject-matter
jurisdiction. United States.v. Shaw, 309 U.S. 495, 60 S.Ct.
659, 84 S.Ct. 888 (1940).
§>vAssuming That The State Law Causes^tf? Action
»^e Not Precluded By The Supremacy Clause
OrNJederal Sovereign Immunity/They Should
Be Dr&qiissed For Failure To/State Claims
For Reifraf. Under State Layf __
Even if the Supremafey^Cl^se or principles of federal
sovereign immunity did not pre^ude^^uit against the federal
defendants on the statfe la^causes of action (numbers 7, 15, and
22), the suit still, mupc be dismissed for failure to state a claim
under the law of Nofth Carolina.
Firscr North Carolina law provides for anNabsolute defense
of immunity^^f governmental officials from suit on tor&actions.
except tp the extent Chat a statute specifically waiving \uch
ionunity has been enacted. Smith v. State, 289 N.C. 303, 222 SE
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lo- m*'&
III. THE COMPLAINT AGAINST THE
FEDERAL DEFENDANT,
BASED'SOLELY UPON (STATE UW CLAIMS, MUST BE
DISMISSED BECAUSE THE STAjTl: COURT LACKED
SUBJECT MATTER JURISDICTION AND THE COMPLAINT
FAILS TO STATE A CLAIM UPDN WHICH P.ELIEF CAW
BE GRANTED. ¦
The Compjainr against the federal defendant, which
asserts state law eort causes of action against him, must be
-dismissed for several reasons. Flfcst, the Supremacy Clause
to the United. Statfes Constitution protect* federal agency
officials fremianfl|suitIih atfate ehurt or under state law.
Moreover, sirtfce tti^lreliel sought; ^gainst the federal defendant
vould, for ail practical purposes..have td be performed by
the United States Itself, the: doctrine of Ifederal Sovereign
Immunity also requires dismissal of this ijemoved action.
Third, as a public 'official of the United IStates who has
acted pursuant to his statutory authority, Mr. Woods is
absolutely immune from tort suits for daof>b«s under the
doctrine of federal official immunity* Finally, even if the
federal defendant could be tried in state fcourt under state
law claims, the law of Alabama would itself require dismissal.
A. The Supremacy Clause to the United States
Constitution Prohibits Suit in the Basis
of State Law Against the Federal Defendant.
As the Supreme Court has often said:
It is a seminal principle of ourjlaw "that the
constitution and the laws made in pursuance thereof
are supreme; that they control t^e constitution and
laws of the respective .states, and cannot be
controlled by then". McCulloch v1. Maryland. 4
Wheat. 316, 426 4 L.Ed. 579, 606 1(111577 From this
principle is deduced a corollary .that:
M[i]t lis of the very essence jto remove all
obstacles to [federal government] action
within: its own sphere,; and sol to modify
every fcower vested in subordinate governments,
as to texempt its own opeationfc from their
influence. 'Id., at 427 4 L.Ed., at 606.
Hancock v. Train. 426 U.S. 167, 178, 96 S.Ct. 2006, 48 L.Ed.2d
555 (1976). Accord. Public Utilities Conim'iH of California
v. Dnlted States. 355 U.S. 534, 544, 2 L.Edj2d 470, 78 S.Ct.
00014
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«m»o uyJBJi Hayo y.Urilted States 319 UjS. 441, 445, 87
. L.Ed. 1504, >63 S.dt.,JH37 (1943). This principle and Its
corollary &r« derijyea irrort the Supremacy Clause co Che United
Scates Constitution.£
The coroOlarfc has the effect of! freeing the activities
of federal government Officers from regulation by any state.
Hancock v. Train, IfruprhL 1426 U.S. 1167, 168; United States v.
Georgia Publfc!Seryi Cfrtmrf'n. 371 U.S. 285 292-293, 83 S.Ct.
397; 9 L.Ed.Eidl 3171 tl9fei))i; i Johnson'^ v. Maryland. 254 D.S. 51,
57; 41 ?.Ct. 13.61 6$lLi$|l.f 126 (192p). Th$ policy considerations
for CMs rule! werelatatfcd; in.'Mayo y. United States, supra.
119 U.S. 441," 445:
Since the [Onited States is a government of
delegated 'powers, none of which may be exercised
throughout tlie nation by any one state, it is
necessary for 'uniformity that the laws of the
United States be doninant over these ot anv state..
Such dominancy is required also |to avoid a breakdown
of administration throur.h possible conflicts arising
from inconsistent recuiremencs. The supremacy
clause...states this essencial principle.... Mo
other adjustments of competing epactments of legal
principles is;/possible. (Emphasis added).
The rule forbids any application!of state law to
Che conduct of federal officials in perforoance of their duties
under federal statutes. 9/ Jurisdiction u^ider state law may
8/ Arc. VI, CI. 2:
This Constitution, and the Laws df the United States
which shall b^loade in pursuance thereof ... shall
be the Supreme(Law of the Land; and the Judges in
every state shall be bound thereby anything in the
Constitution or Laws of any states to the contrary
notwithstanding.
9/ E.g.. Hancock v.j Train; supra. 426 U.S.I 167, 178-i80 (EPA
~ ana TVA officials; not subject to state air pollution laws):
Johnson v. Maryland.! supra. - 254 U.S. 51, 55j-57 (employee of
U.S. Postal Service driving postal truck no;t subject to state
drivers license law); Ohio ;v. Thonas. 173 Ui.S. 276, 282-264,
° S.Ct. 453, 43 L.Ed. (18W5 [federal Military officer
00015
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not be asserted o\Jer federal officials in' performing the
functions of their offices because:
act only
n[t]he general government ... cbn
through its officers and agents' and they
oust act within the states. If*, wnen thus
acting, and Within the scope of their authority,
those officers can be brought t) trial in a state
court for an alleged offense agiinst chc state,
yet warranted by the federal au:hority they possess,
and if the general government i; powerless to
Interfere at: once for chfelr projection ... the
operatio is otj the generaJL government may any time
pf one of its members....
slement of weakness is to
:ion. "he United States
lority extending over the
t. tne gener;
betlarres :ed lib [the iyillj,
Ve!do-no : I think such an
be | found in £ha Constitju
Is Ik government with aut
whole territory of the thion, adting upon the
states and tfye people of the states; while it Is
limited In the number of
sovereignity lextends, iti
government can exclude i£ from
powers J so far as its
is supreme. Mo state
e exercise ofanv
authority conferred upon It by the Constitution;
obstruct its authorized officers against its will;
or withhold from it for a moment the cognizance of
any subject which that instrument ftas cormicced to
It. (Emphasis supplied) ————
Keagle. supra, 135 U.S. 1, 62, quoting from, Tennessee v.
Davis, 100 U.S. 257, 262, 25 L.Ed. 64S (1879). Accord.
State of Alabama ex rel. Galllon v. Rogers. 187 F.Supp. 868,
852 (M.D. Ala. 1960), aff'd. 285 F.2d 430 (5th Clr. 1961),
# ——
cert, denied, 366 U.S. 913, 81 S.Ct. 1085-10S6, 66 L.Ed.2d
236-237 (1961).
(Footnote 9 continued)
Neaele. 135 U.S. 1, 75, 10 S.Cc. 658, 34 L.'Ed. 55 (1890)
Neaeii
707
Marshall not subject to stateimurder law when acting to
protect United States 1udge under attack); (United States v.
KcLoed. 385 F.2d 734, 751-752 (5th Clr. 1967) (federal
investigators not subject to state £rand jury investigation);
United States v. Clt'v of Pittsburg, i467 F.Supp. 1000, 1087-
1088 (N.D. Calif. 1^79) (federal mail deliveries not subject
to state trespass law); Con, of Massachusetts v. Kills, 437
F.Supp. 351, 357-364 (D. Mass. 1977>( (Secretary of HUD not
subject to state sanitary laws when (operating a federal housing
project); In re McShnnes' Petition, ;235 F.Sbpp. 262 (N.D.
Miss. 1964"5 (United States Marshal-case similar to HcLocd. supra,
00015
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'v-
This principle;has had wide application to a variety
of federal officials, latencies, id/ and corporations. See
United States v. city of Adair. 539 F.. 2d 1185 (8th Cir. 1976),
cert, denied. 429 U.S. 1121, 97 S.Ct. 115?, 51 L.Ed.2d 571
(1977) (Commodity Credit Corporation). The rule is also
applied by the state courts of Alabama whfere persons attempt
to assert state lav against federal instrumentalities in a
•tate forua. HunphrexliL -Eotw, 345 Ala. 11. 15 So.2d )32
(1943) (Ft. Mc$lelJ.4n Pos.t Exchange not subject to suit in
state court absent conient); Breeding v. Tennessee Valley
Authority. 243 Ala*. 24(K 0 So.2d 6 (1942),, rehearing denied.
(Tennessee Valley Authority not subject tq a suit in state
court under the state workmen's compensation laws); Moon v.
Hlnes. 205 Ala. 355, 8 So. 603 (1921) (finding that the state
of Alabama cannot pass a law which would hlave any validity
for staking the federal government subject to suits In state
courts without the fconsent of the federal government).
The only exception to this rule exists when Congress
has expressly nade. by statute, the acts of federal officials
and agencies subject to a particular state law (Hancock v.
Train, supra, 426 U.S. 167, 179; EPA v. Calif, ex rel. State
Water Resources Control Bd.. 426 U.S. 200, ,211, '96 S.Ct.
2022, 48 L.Ed.2d 578 (1976); State of Minnesota v. Spannaus.
supra. 543 F.2d 1198, 1206-1207) or subject' to state
jurisdiction. 'Overman v. United States. 563 F.2d 1287, 1291
10/ In addition to the cases cited at n.9,jsupra, see also
United States v. Georgia Public Serv. Corcrn'n. supra. 371
U.S. 285 (C»SA); California fublic Service Cor.ra'n v. U.S..
supra. 355 U.S. 534 (Uept. of Defense); Havo, supra. '319 U.S.
441 (Soil Conservation Service); State of Minnesota Spannaus
v.. Hoffman. 543 K.2d 1198, 1207 (8th Cir. 1976) (Corps of
Engineers); United States v. Allpever. 466 P.2d 1195 (9th
Cir. 1972) (Federal Housing Administration)! Iowa Puhlic
Service Comrn'n v. Iowa State Commerce Comm'n. 407 F.2d 916.
919-920 (8tti Cir. L969) (Dept. of Interior and Bureau of
Reclamation Officials).
CC017
-------
(8th Cir. 1977). ISueh a waiver of a federal officials'
immunity must, however, be based upon a "clear Congressional
mandate" invoking.) "specific (Congressional action," chat makes
the application of .state:regulation "clear and unambiguous."
Hancock v. Train, [supra, 426 U.5. 167, 17.8.
Under trie Supremacy C14use, the defendant is
entitled to IdiSsoisSsal lo'f the| Complaint slhce it was instituted
in a state court iihld pWrtforts co de derived from state law.
As the plaintiffs own; allegation Ishow, tfie federal defendant
vas acting alt fell kinelsj tinder EPA'is federhl statutory scheme
explained in IPsrt 1, supra. 'Amended Complaint, Count 1, *.U.
(See also the Affidavits |of Roy P.: Clark and Ben Woods which
were attached to the federal defendant's Petition for Removal).
In execution of his responsibilities, Che federal defendant was
thus acting as an instrumentality of the federal government.
Moreover, there has been no applicable Congressional
action here chat waives the federal defendant's immunity from
suit under state law. Plaintiffs cite no federal statute
purporting'to affect such a waiver. The only such statute
which could arguably be relevant is the Federal Tort Claims
Act, 28 U.S.C. 551346(b), 2671-2680. U/ The Federal Tort
11/ The Act provides in relevant part":
...[T)he district courts ... shall have
exclusive: jurisdiction of civil actions
on claims!against the United States, for
money damages' ,.r» for Injury or loss of
property,|or personal Injury or death
caused by|the negligent or wrongful act
or omission of any employee of the
Government while' acting within the scope
of his office I or employment, under
circumstancesiwhere the United States, If
a private jperson', ;would be liable to the
claimant in accordance with the law of
the placeiwhere the act or omission
occurred.
28 U.S.C. ;fI346
-------
§£7--
56.- i-sS
- 15 -
Claims Acc waives immunity, subject to several conditions,
from suits for monetary damages due Co injuries caused by
federal government employees, when the "United States, if a
private person, would be liable Co the claimant in accordance
with the law of che place where the act or omission occurred."
Although Congress has partially waived the government's
immunity from suit by means of the Federal Tore Claims Act,
that waiver exists only if the claimants 'comply with the
tens of the sovereign's consent. United States v. Tescan,
424 U.S. 392, 399.. 96 S.Cc. 948, 47 L.Ed.2d 114 (1976); Honda
v. Clark. 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244
(1967); Lenoir v. Porters Creek Watershed PiSt.. 586 F.2d
1081, 1087 (6th Cir. 1978); Gleason v. United Staees. 458
F.2d 171, 173 (3d Cir. 1972); Walker v. United States. 471
F.Supp. 38, 41-42 (M.D. Fla. 1978). "And it rests with
Congress to determine not only whether che United States may
be sued, but in what courts the suit may be brought." State
of Hlnnesota v. United States, supra. 305 U.S. 382, 389.
Section 1346(b) provides in part:
...[T]he district courts ... shall have
exclusive juri£diction~of civil actions on
claims against Che llnited States, for money
damages ... [in tort actions} . .i.. (Emphasis
supplied).
The Act thus gives only the United States District
Courts exclusive jurisdiction over tort claims against the
United States. Gleason, supra, 458 F.2d 171, 173; City of
Pittsburgh v. United States. 359 F.2d 564, 568-569 (3d Cir.
1966); McCall v. United States. 338 F.2d 589. 593 (9th Cir.
1964), cert, denied, 380 U.S. 974, 85 S.Ct. 1334, 14 L.Ed.2d
269 (1965); Areskog v. United States. 396 F.Supp. 834, 837-
838 (D. Conn. 1975); 14 Wrighc, Killer ft Cooper, Fed. Practice
and Procedure $3658 at 228 (1976). It is clear, therefore,
chat Congress did not subject the United States to suit in a
state court.
00:019
-------
iSi^S^aaeSS^&mm
- 16 -
Plaintiffs. brought this action in o state court.
Since the state court lacked jurisdiction, this court can
acquire none upon removal. Minnesota, aupra. 305 U.S. 382,
389; Steele, supra. 483 F.2d 339, 342; Adams, supra, 313
F.Supp. 1349, 1356. Lacking authority to proceed on removal,.
this Court, consequently, should dismiss the action against
the -federal defendant. Gleason. supra. 458 F.2d 171, 174;
Brown, supra, 373 F.Supp. 973, 975.
Even assuping, arguendo. that this Court could have
subject matter jurisdiction over a tort claim against the
federal defendant, the Federal Tort Claims Act still cannot
support this action since no attempt was first made to seek
satisfaction for any such claim from EPA. 28 U.S.C. $2675(a)
specifically requires the submission of a claim to the
appropriate federal agency and a final denial of that claim
before a suit can be entertained.
An action shall not be Instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury
or death caused by the negligent or wrongful
act or omission of any employee .of the Government
... unless the claimant shall have first presented
the claim to the appropriate Federal agency and his
claim shall have been finally denied by the aeencv
in writing ...T (Emphasis supplied).
This exhaustion of remedies rule is reinforced and
restated in EPA's regulations, 40 C.F.R. Part 10 (1980). In
addition, under these regulations, a claim must be presented
to the agency at least six months prior to filing a suit. 40
C.F.R. 110.2(b).
As is shown by the Affidavit of the EPA Claims
Officer, Ray Spears (attached to the federal defendant's
Motion to Dismiss), plaintiffs have never filed such a claim
with EPA, much less waited six months prior to filing the
DQ020
-------
- 17 -
Instant lawsuit. 12/ That omission is fatal to any attempt by
the plaintiffs to rely upon the Federal Tort Claims Act since
compliance with Che exhaustion of administrative remedies
rule contained in 23 U.S.C. 12675 and EPA regulations is a
Jurisdictional prerequisite pursuant to instituting suit
tinder 28 U.S.C. 11346(b). 13/ This requirement cannot be
vaived. ; Daws, supra. 599 P.2d 1375, 1378; House v. Mine
Safety Appliances. 3,73 F.2d 609, 614 (9th Cir. 1978);
Provanelal v. Ohited States. 454 F.2d 72, 74 (8th Cir. 1972).
Failure to comply with 12675(a) and EPa's regulations, 40
C.F.R. Part 10, therefore, would mandate dismissal of any
¦attempt by the plaintiffs to rely upon the"Federal Tort Claims
Act. Daws. supra. 599 F.2d 1375; Hannah. supra. 445 F.Supp.
503. 14/
12/ The plaintiffs, moreover, did not even allege the
presentation of Che claim to EPA or a final disposition of
the claim by EPA as required by 28 U.S.C. $2675. A mere allegation
that their administrative remedies have been exhausted,
however, itf not enough. Proof of timely written notice of
Che claim to EPA must appear of record. -Employees Welfare
Committee v. Daws, 599 F.2d 1375, 1378 n.6 (ich Cir. 1*7S).
13/ Daws. supra, 599 F.2d 1375, 1378; DS1 Corp. v. Secretary
of Housing and Urban Development. 5v4 J-".2d 177,~IblTTZtn
Cir. 1979); 3-M Kncererises v. U.STT~548 F.2d 293. 294-295
(10th Cir. 1977); .Mollnar v. U.377 515 F.2d 246, 248 (5th Cir.'
1975); Hannah v. Buta. 4<*5 F.Supp. 503, .506 (N.D. Miss. 1977).
14/ Even if the plaintiffs had filed some claim with EPA, this
Court could still not take jurisdiction, unless plaintiffs'
claims vere made In a detailed statement on a Government
Standard Form 95, or its equivalent, specifying a "sum certain"
in damages for each plaintiff. Mine Safety Appliances, supra,
573 F.2d 609, 615; Molinar, supra, 515" f'.'jd 24&, 249;. 3-H
"Enterprises. supra, 548 F.2d 293. 295. The procedures
established pursuant to the Act are strictly construed inasmuch
as the Act constitutes a waiver of soveroij>n immunity.
Commonwealth of Pa. v. National Assoc. of Flood Insurers, 520
F.2c 11,"20 (3d cir. 19T5T. !
00021
-------
¦4-^ m
8. The Causes of Action Allep.ed Against Che
Federal defendant Are, In Effect, Claims
Against the United States and Must Be
Dismissed Under the Doctrine of Federal
Sovereign Immunity.
Even if the federal defendant, as an "instrument
Che United States" was not himself immune from state law
under the principles discused at Pare III-A, the plaintiffs
Complaint must still be dismissed on the basis of the doctri
of federal Sovereign Immunity.
It has long been established, of course,
that the United States, as sovereign, 'is
immune from suit save as it consents to be
sued ...'and the terns of its consent to
be sued In any court define this court's
urisdiction to entertain the suit.'
nited States v. Sherwood, 312 U.S. 584.
586 US4L).
United States v. Testan. 424 U.S. 392, 399, 96 S.Ct. 948, 47
L.Ed.2d 1114 (1976). 15/ Since, as explained above, there is
no federal statute applicable to this case by which Congress
intended to subject the action of the federal defendant to
thi3 state law claim, plaintiffs' Complaint is barred if Che
suit is, irj effect, one against the United States. Brown,
supra, 425 U.S. 820, 827; Simons, supra. 394 F.2d 732, 736.
Whether a suit nominally against a federal officer
is, in effect, actually against the United States Itself is
not determined by the name or title of that nominal party.
Instead, it is determined by the practical test of whether a
judgment again.st the federal defendant would operate against
the sovereign United' States itself. Minnesota v. Hitchcock.
185 U.S. 373. 387, 22 S.Ct. 650, 46 L.Ed. 954 (1902); Alabama
Rural Fire Ins. Co. v. Kaylor. 530 F.2d 1221,*1225 (5th Cir.
15/ Accord. United States v. Mitchell, 445 U.S. 535. 538. 100
S.Ct. 1349, 63 L.Ed.2d 607 (lytJQ); Brown v. CSA.' 425
U.S. 820, 827, 96 S.Ct. 1961, 48 L.Ed.2d 402 (157^ Santa
Clara Pueblo v. Martinez. 436 U.S. 49, 58, ou S.Ct. lF?U, 56
L.Ed.2d 106 (1976); Simons v. Vinson, 394 F.2d 732. 735-736
(5th Cir. 1968).
00022
-------
- 19 -
1969)« The applicable principal was succinctly stated in the
seminal case of Dugan v. Rank. 372 U.S. 609, 62'0, 10 L.Ed.2d
15, «3 S.Ct. 999 (1963).
'The general rule Is that a suit is against the
sovereign if 1 the judgment sought would expend
itself on the public treasury or domain, or
interfere with the public administration,' Land
v. Dollar. 330 U.S. 731, 738, 67 S.Ct. 1009TTSJ12,
91 L.Ed. 1209 (1947), or if the effect of the
Judgment would be "to restrain the Government from
acting, or compel it to act.' Larson v. Domes tic &
Foreign Corp.. supra. 337 U.S. at 704, 69 S.Ct. at
'JJ, L.LU. ; tx parte New York. 256 U.S.
490; J502i !S.Ct. 588, 571, L.Jid. 1057 (1921)."
Accord. Brown, supra. 425 U.S. 820, 827; Leber v. Canal Zone
Central5Labor Union 6 Metal Trades Council. 333 F.2d 110, 116
(5th Clr. 1967) cert, 'denied sub nom...Rranlett v. Leber.
389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968). Judged
by Chose standards, the -instant action plainly qualifies as
a suit against the sovereign and is accordingly barred.
First, a Judgment against the federal "defendant
would "interfere with the public adninistration" (Dugan.
supra, 372 U.S. 609, 620) since it would have an immediate
Impact upon EPA enforcement policy as to misuse investigations
under FIFRA. See Gardner v. Harris. 391 F.2d 885, 888 (5th
Clr. L968). In effect, a judgment for plaintiffs would make
E?A's pesticide inspectors very reluctant to engage in any
further investigations, knowing that they could be held
personally liable fox damages in the event of suits flowing
fTom their investigations. These effects would frustrate the
ability of.EPA to prosecute violators. This action, therefore,
must be deemed as one against the United States, because the
relief sought would directly affect "the public administration."
Dugan. supra. 372 U.S. 609, 620. Accord, Hawaii v. Gordon.
373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1964); Gardner,
¦ supra, 391 F.2d 835, 888.
00023
-------
- 20 -
Furthermore, since EPA would be compelled eo reveal
information contained in its enforcement flies, the relief
requested will "compel" the United States "to act" (Dugan,
supra. 372 U.S. 609,. 620), and, hence, the United States is
the real defendant. Further, the monetary relief sought by
plaintiffs from defendant Woods is of such a magnitude,
amounting to at least $400,000, that any judgment for that
amount would realistically have to be paid, if at all, from
the public fisc. Numerous courts have reached the same
conclusion in similar cases. In Carter, supra. 411 F.2d
767, 770, the Fifth Circuit held that a posaible recovery of
$135,000 is a suit against the Secretary of the Air Force
would have to expend Itself on the sovereign's resources.
Likewise, in Hill v. United States. 571 F.2d 1098, 1101 n.5
(9th Cir. 1978), the Court found that a demand as relatively
small as $10,000 made upon government officials would also
have to be satisfied with public funds. Thus, the ease was
construed as one against the United States. 16/ Consequently,
plaintiffs' Complaint against the federal defendant must be
held to be a suit against the United States since the Judgment
involved would "expend itself on the public treasury." Dugan.
supra. 372 U.S. 609*. 620
The plaintiffs' claims against the federal defendant
are, therefore, actually claims against the sovereign Itself,
16/ Accord. Unimex v. U.S. Dept. of Housing. 594 F.2d 1060,
1062 (5th Cir. 197TJ (holding that action was against
United States where danages of $12,000 sought from federal
officials would have to be paid by Che treasury; Tewa Tesuoue
v. Morton. 498 F.2d 240. 242-243 (10th Cir. 1974). cert.
denied. 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440"TT?75)
(Tort action against federal officials for monetary dawaRes
barred by sovereign icrrunity); National Indian Youth Council
v. Bruce. 485 F.2d 97. 99 (10th Cir. T9737"! cere. denied. ST7
U.S. 920, 94 S.Cc. 2628, 41. L.Ed.2d 226 (1974), renearins
denied. 419 U.S. 886, 95 S.Ct. 158, 42 L.Ed.2d 129 (1974)
(Relief In form of improved school facilities would expend
itself on the federal treasury; hence, action was,against the
United States).
00024
-------
- 21 -
Because the nature of.the relief prayed for would burden che
Doited Scares Government. In this regard, It natters not
whether plaintiffs allege that che federal defendant acted
wrongfully or in violation of state lav. Dugan. supra. 372
D1S. 609, 621; Larson. supra. 337 U.S. 682, 693- The fact
that a federal official may have erred in exercising discretion
does not deny immunity to the United States. Adams v. Nagle,
303 U.S. 532; 542, 58 S.Ct. 687. 82 L.Ed. 999 (1938). Hence,
with plaintiffs' Complaint barred by sovereign immunity, the
state court bad no subject matter Jurisdiction to entertain
this suit, since, as we explained in Part III-A above, there
has been no Congressional waiver of immunity that applies to
this case. For these reasons, this Court lacks removal
jurisdiction to adjudicate this matter. Steele^ supra. 483
F.2d 339, 342; Federal Savings & Loan Ins. Corp. v. Qulnn. 419
F.2d 1014, 1017-1018 (7th Cir. 1969).
(C) This Court Cannot Entertain Suit Against
the Federal Defendant Since He is a PubLie
Official Who is Absolutely Immune From a (.¦_*?->' ^5?
Tort Suit for Damages Under the Doctrine '' J
of Federal Official Inmunity.
We have earlier shown thac suit against defendant Woods
should be dismissed because of both the Supremacy Clause and
doctrine of federal Sovereign Immunity. However, even if these
grounds did not mandate dismissal, this suit is nonetheless
barred as to defendant Woods by the doctrine of federal official
immunity. As an official of che United States government who
acted pursuant to his authority under federal law in the circum-
stances involved, Mr. Woods is absolutely immune from a tort
suit for damages. Accordingly, Che Complaint should be dismissed
under Fed.R.Civ.P. 12(b).
It is a weli-escablishcd principle of federal law thac
a public official, acting in his official capacity and in pursuant
of his official duties, is absolutely immune from tort suits for
00025
-------
22 -
damages under che doccrine of official immunity. 17/ This absolute
privilege applies Co executive branch officials even If che
official has a "low rank in Che executive hierarchy." 18/
Ic applies even where Lc is claimed chat che public
official acted intentionally or with malice to barm the plaintiff.
Barr v. Matteo, supra. 360 U.S. 564, 572-573; Bush v. Lucas.
supra. 598 F.2d 958, 960; Norton v. McShane. supra. 332 F.2d
855, 857-9. The policy behind the privilege vas explained by
the Supreme Court in Barr v. Matteo. supra. 360 U.S. 564, 571-572,
in quoting Judge Learned Hand:
... (It) is impossible to know whether the claim
is veil founded until the case has been tried,
and to submit all officials, innocent as well as
the guilty, to the burden of a trial and to che
inevitable danger of its outcome would dampen che
ardor of all buc the most resolute, or the nose
irresponsible, In the unflinching discharge of
their duties.... In this instance lc has been
thought in the end betcer to leave unredressed
Che wrongs done by dishonest officers Chan co
subject chose who Cry to do cheir duty Co che
conscanc dread of litigation..-.1 Greeotre v.
Blddle. 177 F.2d 579, 531 (2d Cir. TSSTFT"
The privilege is applied where a federal agency official
has acted within the "outer perimeter" of his or her official
duties, despite any allegations that the official acced maliciously.
Bush v. Lucas. supra. 598 F.2d 958, 960; Evans v. Wright. 582 F.2d
17/ Barr v. Matteo. 360 U.S. 564, 79 S.Cc. 1335, 3 L.Ed.2d 1434
(1959); Bush v. Lucas, 598 t".2d 958, 960 (5eh Cir. 1979),
reh. denied. 605 F.2d Si**,1 iud. vacated and renanded on och.
issues. IUU S.CC. 1846 (1930j ; Kv.ms v. n'rig^TI 361 P. 2d 20 (5ch
Cir. 1978); Peterson v. Weinberger, 508 F'.2d *5. 50-51.(5ch Cir.
1975), cerc."*oen!e3T 423 U.S. 6JU, "6 S.Cc. 50, 46 L.Ed.2d 47
(1975); Accora, c.::reditior. Vnited v. Srith'sonian Inscicuce. 566
F.2d 289. 2V3-295 > ; cert, a>! 39'J U.i.
451, 21 L.E»i.2d 442 ; ^orto'i v. Kci-Stne. 232
F.2d 855, 857 (5ch Cir. 1964) (collectinp, cases), cert, denied. 380
U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); ZimralFmarTvT
Spears. 428 F.Supp. 759, 762 (W.D. Tx. 1977).
0002$
-------
- 23 -
20. 21r23; 'Bridges v. Internal Revenue Service. 433 -F.2d 299, 300
(5th Cir. 1970); Norton v. McShane. supra. 332 F.2d 855, 857-861.
Under these principles, the defendant Woods is entitled
to dismissal of plaintiffs' claims. Mr. Woods is a federal
executive official who performs investigative duties like other
defendants in several Fifth Circuit cases where Che privilege has
bjeep;applied. 119' Plaintiffs' claims sound in traditional tort
iaw. against: which the (official Immunity doctrine is routinely held
to be abar to suing federal officials. 20/
'Moreover, the papers filed in this case show chat, as to
'oods" activities of which plaintiffs complain, he was acting within
thie "outer perimeter of his duties." As we explained In In Part
I, supra. pages 4-6, Woods' authority.is to conduct investigations
concerning the possible misuses of pesticides pursuant to
discretionary statutory power under S14(a) of F1FRA, 7 U.S.C.
SI36 1. Plaintiffs' Complaint alleges that Uoods participated
in concealment of testing information obtained by EPA as the
result of an investigation. Since that investigation was a
matter within Woods' legal authortiy to perform, 21/ he was
acting well within the "outer perimeter of his duties" in this
matter. See Evans v. Wright. supra. 582 F.2d 20, 21-24; Peterson
19/ E.g.. Evans v. Wright", supra. 582 F.2d 20, 21-23 (Medicare
fraud investigators); Peterson v. Weinberger, supra, 508 F.2d
45, 50-51 (same); Bridges v. Internal Revenue Service, supra.
433 F.2d 299, 300 (IRS investipators). Norton v. McShane, supra.
;332 F.2d 855, 859-60 (collecting cases).
|20/ Barr v. Matteo. supra. 360 U.S. 564, 572-575 (defamation);
Bush v. Lucas. supra. 598 F.2d 958, 960 (defamation);
¦Evans v. WrigTit. supra. 582 F.2d 20, 21-3 (tortious interference .
iwith contract rights; misrepresentation); Norton v. McShane,
'Supra, 332 F.2d 855, 859-860, n.5 (collecting cases on broad
ivarlety of torts).
¦21/ See also, the Affidavits of Clark and Woods, attached to the
Petition for Removal, in which Woods and his supervisor
relate that Woods was, as to the matters alleged in the Conplaint,
acting at all times pursuant to Woods' legal authority under FIFRA.
00027
-------
- 24 -
v. Weinberger, aupra, 508 F.2d 45, 50-51; Worton v. MeShane. supra.
332 F.2d 855, 857-861.
Woods is, therefore, entitled to rely upon che absolute
privilege afforded against tort damage actions by che doctrine of
official immunity. As a result, he Is entitled to dismissal of
this case. The burden is on the plaintiffs to plead the absence
of official immunity, Kerrait Const. Corp. v. Banco Credito "
Ahorro Ponceno. 'J47 Fi2dl, 3 (1st Cir. 1976). Plaintiffs'
complaint Bakes no such allegations at all. Instead, ic shows
that Woods >uas acting' In his position as -an EPA pesticides
investigator to vhich the privilege of official immunity applies,
.warranting dismissal of the complaint for failure to state a
claim upon which relief can be granted pursuant to Fed.R.Civ.P.
12(b). Eji., Bersharf v. Wood. 290 F.2d 714 (9th Cir. 1961);
Green v. Cauthen. 379 F.Supp. 361, 374-5 (E.D. Va. 1974). As
the Court in Green. supra. observed, che defense o£ official
israunity applies, pursuant to Fed.R.Civ.P. 12{b), because a
federal official is entitled "to be free from the burden of
trial of plaintiff's assertions..." Thus:
'* * * The principle cuts deeper than a
bare immunity from ultimate liability; the
principle is one that halts at the threshold
any judicial inquiry into cho existence ot
private injury consequent upen the officer's
act, even when it is alleged to have been a
consciously wrongful act, where it appears
Chat the alleged private wrong grew directly
out of the defendant's functioning in his
discretionary office. That is, precisely, the
point of Gregoire v, Blddle, 2d Cir. 1949, 177
F.2d 579. The immunity is from Inquiry not
leas than from liability . i Babylon Milk
and Cream Co. v. Kosenbush. 233 F.Supp. 735.
^36 (E.D.N*.*. 1964).
Green, aupra, 379 F.Supp. 361, 375. (Emphasis supplied).
00028
-------
- *3-
construed to have some relac^prfship co che state laws involved,
the complaint should>i>e-fTi be dismissed for the reasons advanced
nts, at pp. 26-27 of their Memorandum In
(G) As Public Officials, The Federal
Defendants Are Absolutely Immune From
Any Claims For Damages, Regardless Of
Whether Plaintiffs Are Otherwise Entitled
To Relief. '
Ve have shown that under either federal or state law,
Che complaint should be entirely dismissed as to Che federal
defendants, since Che Court either lacks subject matter jurisdiction
or plaintiffs have failed to state any claim for relief against
these defendants. However, even if plaintiffs have pleaded some
claim for equitable relief, the federal defendants are still
entitled to dismissal of any claims for monetary damages. As
public officials of che federal government, they are absolutely
Immune from suits for damages and any such claim is dismissable
under FRCP 12(b). Green v. Cauthen, 379 F. Supp. 361, 375 (D.S.C.j
1974) (collecting cases on 12(b) dismissals for absolute immunity).
As Che Fourth Circuit has said: "(i)C is a well established
principle of law that a public official, acting In his official
capacity and in pursuit of his official duties, is lcroune from
suit$ for damages." Bowman v. White, 388 F.2d 759-60 (4th Cir.
1968), cert. den.. 393 U.S. 891. In such cases, said the circuit
in Bowman, the doctrine of Holmes v. Eddy, 341 F.2d 477 (4th
Cir. 1965). cert, den.. 382 U.S. 892, 86 S.Ct. 185, 15 LE 2d
149, applied:
Public officers when acting within the scope
of their official authority are immune from
suits for damages. Barr v. Matteo, 360 U.S.
564, 79 S.Ct. 1335, 3TE 2d 1434 (1959);
Grecoire v. Biddle. 177 F.2d 579 (2d Cir.),
cert, den.. 359 U.S. 949, 70 S.Ct. 803,
94 L.Ed. 1363 (1950); Jones v. Kennedv, 121
F.2d 40, 42 (D.C. Cir.), cart, cen,, $14 U.S.
665. 62 S.Ct. 130, 86 L.Ed. 532~ri941).
of Mocion Co
Dismiss Complainc.
00029
-------
64 -
•¦ - ¦. •V:~J'JirJ|."nai .-,/ayqr.yj!^.'c':-i'';'
Bowman, supra. 388 F.2d at 760. Accord, Bush v. Lucas, 598 F.2d
958, 960 (5th Cir. 1979); Expedition Unltd. v. Smithsonian Inst..
566 F.2d 289, 293-295 (D.C. Cir. 1977).
This absolute privilege from damages even applies if
"the official has a low rank in the executive hierarchy." Barr
v. Matteo. supra. 360 U.S. at 572-3, 79 S.Ct. at 1340. The
policy behind the rule was explained in Barr, supra, 360 U.S. at
571-2, 79 S.Ct. at 1340, by quoting Judge Learned Hand';
••• (It) is impossible to know whecher the claim
.Is veil founded until the case has been tried,
'and to submit all officials, innocent as well as
the guilty, to the burden of a trial and to the
inevitable danger of its outcome would dampen the
ardor of all but the most resolute, or the most irre-
sponsible, in the unflinching discharge of their duties.
••• In this instance it has been thought in the
end better to leave unredressed the wrongs done by
dishonest officers than to subject those who try
to do their duty to the constant dread of litigation
... Greeoire v. Biddle. 177 F.2d 579. 581 (2d Cir.
194977^
The policy applies, moreover, to afford federal officials immunity
acting within the "outer perimeter" of their duties, even if the
official acted "overzealously or maliciously." Green v. Cauthen,
supra. 379 F. Supp. at 375.
Defendants Cos tie and Hanmer are both high federal
government officials. All allegations against them concern
matters within the scope of their official duties as administrators!
of EPA's statutory regulatory programs. As we have shown above,
those duties are discretionary under law. Accordingly, under
Barr and its progeny, the federal defendants are absolutely
immune from any suit for damages.
00030
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-2-
•unlawfully subjected It to conflicting sets of regulations —
those promulgated by Indiana as state regulations and proposed
for inclusion in its SIP, and those currently in effect as
part of the federally approved SIP. The plaintiff also alleges
that defendants have improperly allowed certain enforcement
personnel to both review the proposed..implementation plan
revisions and to prosecute enfprcement actions against Bethlehem
Steel. According to the plaintiff, the enforcement personnel
are biased against approval of the plan revisions.
The government has moved to dismiss the action on the
grounds that this Court lack3 subject matter Jurisdiction, and
that plaintiff has failed to state a claim upon which relief
can be granted. This memorandum is submitted in support of
this motion.
II. STATUTORY AND REGULATORY BACKGROUND
Itli -<'/¦ k
A. STATUTORY SCHEME
In 1970 Congress passed the Clean Air Act
Amendments of 1970, Pub. L, 91-60H, Stat. 1676 (December 31,
1970). Under the statutory scheme the Administrator of the
Environmental Protection Agency (EPA) was responsible for
establishing nationwide primary ambient air quality standards
(NAAQS), designed to protect the public health, and nationwide
secondary ambient air quality standards, designed to protect
00031
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the-puDllc welfare. Section 109, 42 U.S.C. §7*109. The primary
standards were to be achieved as "expeditiously as practicable"
but.later than 1975* Section 110(a)(2)(A), 42 U.S.C.
57410(a)(2)(A). The secondary standards were to be achieved
withlhi.a "reasonable time." Section 110(a)(2)(A), 42 U.S.C.
S74ipXfc)(2)(A).
The Act assigned primary responsibility to the states
for achieving the national ambient standards. In particular,
tneAct required a state to adopt and submit to the Administrator
a pian?providing for "implementation,, maintainance, and enforce-
ment iof the air quality standards for every portion of the
state." Section 110(a)(1), 42 U.S.C. §7410(a)(l). In turn,
the Administrator was required to approve the state plan
(commonly referred to as state implementation plan or SIP)
within four months if he determined that it was adequate to
attain and maintain the ambient air quality standards and
complied with the criteria set out in Section 110(a)(2)(A)-
(H), 12 U.S.C. §74l0(a)(2)(A)-(H). The Act also provided that
the Administrator must approve any subsequent revision to a
SIP if he determines that the revision Is in conformity with
the requirements of Section 110(a)(2). Section 110(a)(3), 42
U.S.C. 7410(a)(3).
The 1970 Amendments required the states to submit
plans frlthin nine months of promulgation of a national ambient
air quality standard. Section 110(a)(1), 42 U.S.C. §74l0(a)(l).
00032
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in 1971 the Administrator promulgated ambient air quality
standards for six pollutants: total suspended particulates,
sulfur oxides, carbon monoxide, hydrocarbons-, photochemical
oxidants (ozone) and nitrogen oxides. 40 C.F.R. Part 50.^/
States acccordingly submitted SIPs designed to provide for
the attainment and maintainance of these standards.
However, in 1976 it became apparent that many areas
of the country had failed to attain the primary (health-related)
ambient standards by the statutory deadline. Congress responded
to this problem in 1977 by once again amending the Clean Air Act.
It extended to December 311 1982, the deadline for attaining
primary ambient air quality standards for most pollutants.£/
Section 172(a)(1), 42 U.S.C. 57502(a)(1).
Congress also directed the states to determine whether
the standards were being met for each pollutant in every area
of the state. The states were to identify those areas in
which the standards had been attained (attainment areas), those
areas where there were violations of the standards (nonattainment
areas), and those areas which were unclassifiable for lack of
information. Section 107(d)(1), 42 U.S.C. $74®7(d)(l). The
Administrator was required to promulgate these designations
with any necessary modifications. Section 10.7(d)(2), 42 U.S.C.
57407(d)(2).
The Act directed the states to revise their SIPs to
ensure that the standards were met in the nonattainment areas
\f In 1978 the Administrator promulgated standards for lead. I_d.
£/ Subject to certain limitations, Congress provided an
extension until December 31, 1987 for attainment of the
national ambient standards for photochemical oxidants (ozone)
and carbon monoxide. Section 172(a)(2), 42 U.S.C. §7502(a)(2).
00033
-------
1>y zne new statutory deadline. Section 172, 42 U.S.C. §7502.
Part D of the Act, 42 U.S.C. §§ 7501-7508, provides detailed
planning requirements applicable in areas that have not attained
tne national standards. The Part D SIPs were to be submitted
to EPA by January 1, 1979. Section 129(c), 42 U.S.C. §7401
(note under text). The Administrator was required to approve
them by July 1, 1979 if they complied with the provisions of
Part D.
B. ADMINISTRATIVE PROCEEDINGS
On March 3, and October 5» 1978 the Administrator,
pursuant to Action 107 of the Act, 42 U.S.C. §7407,* promulgated
air quality designations for the State of Indiana. 43 Fed. Reg.
8962, 45993 (1978). Porter County, where plaintiff's Burns
Harbor steel mill is located, was designated as unclassifiable
for particulates, a pollutant that the facility emits. However,
other Indiana counties where other steel mills are located
were designated nonattainment for particulates.
Prior to the 1977 Amendments to the Act, EPA had
approved regulations for controlling Iron and steel mill
emissions in Indiana. In particular, EPA approved Indiana Air
Pollution Control Regulation APC-3 which established limits
on the opacity of emissions. 40 Fed. Reg 50033 (October 28,
1975).3/ Earlier, EPA had approved APC-5, an Indiana regulation
that sets particulate emission limits for coke ove*j batteries
at steel jnllls. 37 Fed. Reg. 10863 (Hay 31* 1972). Upon
approval by EPA, these state regulations became part of the
3 Opacity is g.n Indicator of the amount of particulates 'Issuing
from a source.
00034
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-10-
Bethlehem seeks to compel agency action on the
reguiations enumerated In the complaint, on the DCO, and on the
abatement order, pursuant to Section 304(a)(2) of the Act, kZ
D.S.C. 57604(a) (2). Bethlehem further requests that this Court
compel EPA to approve or disapprove all pending Indiana SIP
revisions, and that it issue e -writ of mandamus or mandatory
injunction requiring EPA in the future to act within four
months on all such revinons. The plaintiff also requests
that EPA be preliminarily and permanently enjoined from enforcing
regulations APC-3 and APC-5 in the current Indiana SIP against
Burns Harbor until action is completed on regulations 325 IAC
5-1 and 325 IAC 11-3. Finally, Bethlehem asks this court to
declare arbitrary and capricious EPA's alleged' practice of
mingling prosecutorial and rulemaking functions among its
staff.
IV. ARGUMENT
PLAINTIFF PAILS TO ESTABLISH /)hv» jj, n
ANY BASIS FOR SUBJECT MATTER ty-M* h I
JURISDICTION, OR TO STATE A
CLAIM FOR RELIEF AGAINST EPA
Bethlehem alleges that its claims arise under the
"citizen suit" provision of the Clean Air Act, 42 U.S.C,. §7604;
28 U.S.C. §§1331(a), 1337, 1361, 2201-2202; the Adminstrative
Procedure Act, 5 U.S.C. §§702-706; and the United States Constitut-
ion. However, Bethlehem's allegations afford neither a basis
for subject matter Jurisdiction over defendants> nor a claim
00035
-------
for relief against them.
A. Section 304(a)(2) Of The Clean
Air Act Does Not Provide Juris-
diction Or a Cause Of Action.
iln sections 304 and 307 of the Clean Air Act, 42
U.S.C. 5§ 7604 and 7607* Congress created a comprehensive scheme
for obtaining orderly Judicial review of the Administrator's
actions under the Act. Section 304(a)— the "citizen suit"
provision—states in pertinent part:
Except as provided in subsection (b) of
this section, any person may commence a
civil action on his own behalf
* t i
(2) against the Administrator where there
is alleged a failure of the Administrator
to perform any act or duty under this Act
which is not discretionary with the
Administrator ....
The district court shall have Jurisdic-
tion, without regard to the amount in
controversy or the citizenship of the
parties to . . . order the Administrator
to perform such act or duty. ...
42 U.S.C. §7604(a)(2). Subsection (b) of section 304 further
provides:
No action may be commenced
• * i
(2) under subsection (a)(2) of this section
prior to 60 days after the plaintiff has
given notice of such action to the Administrator.
42 D.S.C. 57604(b)(2).
Section 307(b)(1) of the Act states in pertinent part:
A petition for review of the Administrator's
action in approving or promulgating any Imple-
mentation plan under section 110 . . .or under
regulations thereunder, or any other final action
00036
-------
of the Administrator under this Act (including
any denial or disapproval by the Administrator
under title I) which is local or regionally
applicable, way be filed only in the United
States Court of Appeals for the appropriate
circuit.
42 U.S.C. 57607(b)(1) (emphasis added).
Bethlehem relies on Section 304(a)(2) of the Act,
42 U.S.C. §7604(&)(2), as the basis for this lawsuit against
the Administrator. To state a claim upon whiich relief can be
granted, and to establish Jurisdiction under Section 304(a)(2),
a litigant must allege that the Administrator has failed to
perform a nondiscretionary duty imposed by the Clean Air Act.
Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1353-55 (9th
Cir. 1978}; Citizens for a Better Environment v. EPA, 515
F.Supp. 264 (N.D. Ill, 1981); Environmental Defense Fund
v. Costle, 448 F. Supp. 89, 92 (D.D.C. 1978); Dow Chemical
Company v. Costle, 480 F. Supp. 315 (E.D. Mich. 1978), aff'd
659 F.2d 72*1 (6th Cir. 1979). Furthermore, once the Administra-
tor has acted in furtherance of a nondiscretionary duty, juris-
diction under Section 304 is not established through allegations
that such actions vrere inadequate to fulfill that duty. As
the District Court held in Rubber Manufacturers v. Costle,
14 E.R.C. 2108, (D. Del. 1980):
[P]laintiffs fault the Administrator not
for failing to act in furtherance of what may
be a mandatory duty . . . but rather for the
manner in which he chose to discharge the
duty. While this Court might have Jurisdiction
to require the Administrator to act . . .
once he,has acted, I conclude that it does
not have Jurisdiction to review the exercise
of his discretion ....
0003?
-------
S.R.C. at .2114-2115* Accord, Natural Resources Defense
pan ell v. EPA, 512 P.2d 1351 (D.C. Clr. 1975); Oljato Chapter
of the Nava.lo Tribe v. Train, 515 F.2d 65^ (D.C. Clr. 1975);
Kennecott Copper Corp. v. Costle, 572 P.2d 13^9 (9th Clr.
1978).
Bethlehem has unsucessfully endeavored to tailor Its
allegations to fit within the confines of Section 304(a)(2).
Plaintiff characterizes each state regulation ever submitted
by Indiana to EPA as giving rise to a nondiscretionary duty by
the Administrator to publish final approval or disapproval of
the regulation within a time period specified by the Act.
Plaintiff further alleges that EPA has failed to publish any
of the required determinations. However, plaintiff has mischar-
acterized the nature of the SIP revision process and EPA's
* actions, and has misread the requirements of the Act.
1. EPA has not violated a mandatory
duty to act on Indiana regulations
J25 IAC 5-1 and 325 IAC 11-3 wlth-
ln four months.
In Counts II and VI Bethlehem alleges that EPA has
failed to perform its mancJ&tory duty to take final action within
four months on Indiana's revlsed^opacity rule 325 IAC 5-1, and
on Indiana's revised coke battery rule 325 IAC 11-3. According
to the plaintiff, Section 110(a)(2), U2 U.S.C. §7^10(a)(2),
requires EPA to approve or disapprove these rules within four
00038
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-34-
rigk^5 W the issue involved does not require factual
determinations; and (3) the issue cannot be raised tacer on
judicial review. Borden, Inc. v. FTC, 495 F.2d 735 (7th Cir.
1974). None of these conditions are met -here, since the agency
has not violated any statutory righlr, the question of bias is
highly factual, and can be re>i^wed later in the Court of
Appeals under Section 307(b3(1). Ofrly after EPA has made its
final decisions should plaintiff be permitted to raise the
"commingling" i&sue it now raises in this Courtv
Ijt sum, this Court lacks jurisdiction over the
allegations in Count VIII. Furthermore, judicial review of the
issjifes raised by plaintiff is not appropriate at this time.
B. Plaintiff has failed to
establish any other basis .upr -ff'O
for jurisdiction in this J"'41
Court.
Plaintiff also cites the following as jurisdictional
bases for this suit: 28 U.S.C. SS 1331(a), 1337, 1361, and
2201-2202; the Administrative Procedure Act, 5 U.S.C. §§ 702-
706; and the Fifth Amendment of the United States Constitution.
None of these provisions provide jurisdiction in this case.
Therefore, this case should be dismissed pursuant to Pule 12(b)(1)
of the Federal Rules of Civil Procedure.
First, the APA does not itself provide subject: matter
jurisdiction. Califano v. Sanders, 430 U.S. 99, 106-108. (1977).
00039
-------
-35-
The plaintiff also relies on 28 U.S.C. 51331(a)
(federal question) and 51337 (commerce clause) as grounds for
this court's jurisdiction.^2./ However, as the Supreme Court stated
in Califano v. Sanders, 430 U.S. 99, 105(1971), jurisdiction
under 28 U.S.C. S1331 is "subject. . . to preclusion of
review statutes created or retained by Congress." Congress has
carefully prescribed in Section 304(a)(2) of tjhe Clean Air Act,
42 U.S.C. 57604(a)(2), the sole means by which citizens can
obtain judicial review of the Administrator's ifailure to perform
a nondiscretionary duty. The legislative history of the section
reveals that Congress narrowly circumscribed the jurisdiction
of the district courts in order to prevent disruption of the
administrative process. Senate Committee on Public Works, 93d
Cong., 2d Sess., A Legislative History of the Clean Air Act,
Serial No. 93-18, Vol. I at 278 (1970). The courts have also
interpreted the jurisdictional grant in Section 304(a)(2)
narrowly. Kennecott Copper v. Costle, 572 F.2d 1349, 1353 (9th
Cir. 1978); Wisconsin Environmental Decade, Inc. v. Wisconsin
Power & Light Co., 395 F. Supp. 313 (W.D. Wis. 1975); West
20/ In view of the 1976 amendment to 51331(a) eliminating
the requirement as to the amount in controversy in any
action against the United States or its agencies, no practical
difference remains between 51331(a) granting jurisdiction in
civil suits arising under federal law and 51337 providing
jurisdiction of civil suits arising under any act regulating
commerce. Jackson v. TVA, 462 F. Supp. 45, 50 in.2 (M.D. Tenn.
1978), aff'd, 535 F.2d~TT20 (6th Cir. 1979). The same test
accordingly applies in determining whether jurisdiction exists
under §51331 and 1337. Penn. State Construction Co. v. Associated
East Mortgage^Co., 457 F. Supp. 396, 398-399 (W.D. Penn. 1978).
See, Florida East Coast Ry. Co. v. Jacksonville Terminal Co.,
3Z8 F.2d 720, 722 (5th Cir. 1964), cert, den., 379 U.S. 830, 835
(1964).
00040
-------
-36-
fenn Power Co. v. Train, 378 F. Supp. 941 (W.D. Penn.
19743 11/
Since Congress has defined the limits of district
court Jurisdiction in the provisions of Section 304(a)(2),
this £Ourt may not accept jurisdiction under 28 U.S.C. 51331(a)
where none exists under 304(a)(2). To do so would defeat
Congress' intent to "specify in legislation [the] terms upon
whieh the government consents to be sued . . . ." West Penn
Power Co. v. Train, supra. 378 F. Supp. at 944. As
the district, court in that case stated, "such terms must be
strictly followed. Hence, the court has no jurisdiction of
this suit. . . ."11/
This conclusion is in harmony with the Supreme Court's
decision in Middlesex County Authority v. National Sea Clammers
Ass'n, 453 U.S.I (1981). In that case, plaintiffs had brought
suit in district court seeking to enjoin dumping of sewerage
in the Atlantic Ocean which, according to the plaintiffs, EPA
11/ As to plaintiff's allegations in Count VIII, it is well
settled that where jurisdiction over agency action is
vested exclusively in the appellate courts under Section 307(b)
of the Act, 42 U.S.C. 57607(b), a district court may not take
jurisdiction under 28 U.S.C. 1331(a). PPG Industries Inc. v.
Harrisson, 446 U.S. 578 (1981 ). See also Dow; ChemicaT"Co. v.
Co8tle>~?80 F. Supp. 315 (E.D. Mich. 1978); Environmental
Defense Fund v. Costle, 448 F. Supp. 89 (D.D.C. 1978)
11/ The district court in West Penn dismissed a complaint
brought under the citizen suit provision! of the 1970
Amendments to the Clean Air Act, which is identical to Section
304(a)(2), and under 28 U.S.C. 51331r In that case the plain-
tiff requested the court to enjoin enforcement of portions of
the Pennsylvania SIP. The court dismissed the complaint in
part because plaintiff had not given the Administrator sixty
days notice before instituting the suit, as required by the
Act. See Section 304(a)(1), 42 U.S.C. 7604(a)(1).
00041
-------
-37-
-------
-38-
(1979) ("li- %'s an elemental canon of statutory construction
that where statute expressly provides a particular remedy or
remedies, a court must be careful of reading others into it."
Id at 14-15.
Though the Court's decision turns on the absence of a
cause of action rather than on jurisdiction, the logic of the
decision is fully applicable here. As the Court emphasizes in
Sea Clammers, where a statute contains explicit and narrowly drawn
judicial review provisions, and it appears that Congress
Intended those provisions to limit all actions brought under
the statute, a district court may not defeat Congress' intent by
entertaining a cause of action other than that expressly created
by the statute. Similarly, a district court may not circumvent
a limited statutory jurisdictional grant by accepting jurisdiction
under a general jurisdictional statute.
Defendants have shown that plaintiff has failed to
establish jurisdiction, or to state a cause of action, under
Section 304(a)(2) of the Clean Air Act. Consequently, no
jurisdiction exists under 28 U.S.C. 1331(a) or 1337.
Furthermore, because sections 1331 and 1337 do not
themselves create causes of action, suits under them can only
be maintained if a claim for relief is founded in some other
federal statute.24/ As shown above, Bethlehem's suit against
94/ 13 Wright, Miller & Cooper, Federal Practice and Procedure,
— Jurisdiction, S3562 at 413 as to §1331, and §3574 at 504
as to §1337 (1976 ed.); Wheedin v. Wheeler, 373 U.S. 647, 649
(1963); Bell v.' Hood, 327 U.S. 678 (1951 ) ; Colorado Labor Council,
AFL-CIO vT~£FL- CTU7 481 F.2d 396, 400 (10th Cir. 1973) (as to
51337)
00043
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-39-
states no claim upon which relief can be granted. Since
plaintiff has failed to establish a cause of action under the
Clean Air Act or any other federal statute, Jurisdiction does
not exist under Sections 13311a) and 1337.
The Mandumus Act, 28 U.S.C. §1361, does not confer
Jurisdiction here for the same reason that Section 304(a)(2)
of the.Clean Air Act does not. Like Section 304(a)(2), the
Mandamus Act provides limited Jurisdiction in district court
to compel a federal agency or employee to perform a mandatory
duty. Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1356
(9th Cir. 1978); City of Highland Park v. Train, 519 P.2d 681,
691-692 (7th Cir. 1975). As shown above, the plaintiff has not
pointed to any mandatory duty that the Administrator has failed
to perform. Part A, supra.
Bethlehem also relies on the Declaratory Judgment
Act, 28 D.S.C. §§2201-2202, as a separate ground for Jurisdiction.
It is well established, however, that the Declaratory Judgment
Act is not a Jurisdictional statute, but merely provides an
additional remedy if Jurisdiction exists under some other
statute. Fisher v. Secretary of United States Department of
Health Education and Welfare, 522 F.2d 493, 499 (7th Cir. 1975).
Because there is no independent basis for Jurisdiction over
Bethlehem's claims, this Court is without Jurisdiction to grant
declaratory relief.
Finally, the Fifth Amendment to the Constitution does
00044
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-40-
not provide a jurisdictional basis; "[T]he jurisdiction of the
district courts ... is limited to that which Congress has
granted them by a valid statute." Moore's Federal Practice,
S.60[3] at 620 and 621 (2nd ed.) (emphasis added). Accord,
Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968).
Defendants have already shown that this Court lacks
Jurisdiction under Section 304(a)(2) of the Clean Air Act
Part A, supra. Thus none of the jurisdictional bases alleged
by plaintiff is sufficient to provide this Court with jurisdic-
tion over this case, and the complaint must be dismissed.
Respectfully submitted,
R. LAWRENCE STEELE
United States Attorney
ANDREW B. BAKER, Jr.
Assistant United States Attorney
CATHERINE A. COTTER
Attorney, Environmental Defense
Section
Department of Justice, Room 1248
10th and Pennsylvania Avenue N.W.
Washington, D.C. ,20530
Telephone: 202/633-5260
CAREY S. ROSEMARIN
Assistant Regional Attorney
United States Environmental
Protection Agency, Region V.
South Dearborn Street
Chicago, Illinois^ 60604
OF COUNSEL:
CAROLINE POPLIN
Attorney, Office of General
Counsel
United States Environmental
Protection Agency
Washington, D.C.
September 24, 1982
-------
-2-
Department of Environmental Services ("DES") modified the
terms of the di8charge permit issued to DES or in any way
relieved DES of complying with the terms of that permit.
2. Whether the terms of the Compliance Order were
I reviewable at the administrative hearing held to review the
discharge permit or are reviewable in this Court.
3. Whether EPA lawfully issued the discharge permit
to t)ES when DES could not comply with its terms immediately
but has agreed to conduct further studies and construction to
meet the terms of the permit.
4. Whether the terms of the permit ensure that dis-
charges from the Blue Plains facility will not violate applicable
water quality standards.
The pending case has not previously been before this
Court or any other court; nor are there any related cases pending
or expected.
1. The Blue Plains Facility
This case involves a challenge by petitioners Montgomery
Environmental Coalition, Inc. ("MEC") and Citizens Coordinating
Committee on Friendship Heights, Inc. 1/ to the issuance by
EPA of a permit under Section 402 of the Clean Water Act (the
"Act"), 33 U.S.C. 1342, for the discharge of pollutants from
the Blue Plains Sewage Treatment Plant ("Blue Plains"). Blue
Plains is operated by DES and is the principal wastewater
1/ Petitioners are sometimes jointly referred to herein as "MEC."
STATEMENT OF THE CASE
00046
-------
treatment plant for the metropolitan Washington, D.C. area.
The plant receives sanitary wastes from the District of Columbia
and surrounding counties, and also receives stormwater runoff
from the combined Btorm and sanitary sewers in sections of
the District of Columbia. The plant discharges Its treated
effluent into the Potomac River.
2. Statutory Requirements
Under the Act, point source dischargers to the navigable
waters must obtain an NPDES permit authorizing such discharge.
Such NPDES permits must contain terms and conditions, including
effluent limitations, implementing various standards. See,
Montgomery Environmental Coalition v. Costle, 6H6 P.2d 568,
57^^575 (D.C. Cir. 1980)(WHEC I"). For publicly owned treatment
works ("POTWs"), such as Blue Plains, the baseline standards
are technological, requiring installation of secondary treatment 2/
by July 1, 1977. Section 301(b)(1)(B), 33 U.S.C. 1311(b)(1)(B).
Prior to December 1981, the Act also required that, by July 1, 1983,
POTWs analyze treatment alternatives and implement "best practicable
wastewater treatment technology" over the life of the treatment
work3. Section 301(b)(2)(B), 33 U.S.C. 1311(b)(2)(B)(1978).
This requirement, however, was repealed by Section 21(b) of
the Municipal Wastewater Treatment Construction Grants Amendments
of 1981, 95 Stat. 1623, 1632, P.L. 97-117 (Dec. 29, 1981).
2/ Secondary treatement, defined in 40 C.F.R. Part 133, involves
uses of biological processes, primarily decomposition, with
or without chemical disinfectants, to remove organic waster,
which are not removed by m'ire screening and sedimentation, which
is termed "primary treatment."
00047
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-u-
Thua, the only remaining technological requirement of the
Act for POTWs is that of secondary treatment.
Some. POTWs, however, must meet limits more stringent
than those which can be achieved through secondary treatment.
Under Section 301(b)(1)(C), 33 D.S.C. 1311(b)(1)(C), all discharges
must meet any limitations more stringent than those based on
applicable technological requirements, such as secondary
treatment, which are needed to meet water quality standards.
Water quality standards are set by the states pursuant to
Section 303 of the Act, 33 U.S.C. 1313. These standards may
identify the necessary minimum concentrations of substances
in water to support specified uses. For example, dissolved
oxygen must be present at certain levels if propagation of
aquatic life is to be protected. In addition, standards may
set maximum concentrations of pollutants, such as bacteria,
which may be harmful to humans. Finally, water quality
standards may contain certain narrative criteria, such as
the prohibition of certain conditions.
The District Of Columbia, Virginia and Maryland all
have set standards applicable to the Potomac River. J.A. at 82.3/
However, only the District of Columbia and Maryland standards
are relevant for purposes of this case. Initial Decision, In
the Hatter of Blue Plains Sewage Treatment Plant, NPDES Permit
%/ "J.A."refers to a page in the Joint Appendix In this case.
00048
-------
-5-
No. DC 0021199, Docket No. DC-AH-102 ("I.D."), Finding of
Pact No. 2, p. 4, J.A. at 338. The two relevant standards
prescribe the level of dissolved oxygen which must be present
in the river, and prohibit nuisance conditions, or excessive
algal growth. See p. 26, infra.
Once water quality standards are developed, EPA, in
Issuing a permit, V-must assess the receiving stream's existing
water quality against the water quality standards applicable to
that stream. The agency must set effluent limits in the permit
which provide that discharge of the effluent will not cause a
violation of the applicable standard. Thus, any permit author-
izing a discharge into the Potomac must incorporate the more
stringent requirements of the dissolved oxygen and nuisance algae
water quality standards. Because there are natural physical,
chemical and biological processes which, over time, remove pollut-
ants from a receiving stream, and because dilution may also reduce
an initial heavy effluent concentration of pollutants to a much
lower concentration in the stream itself, this calculation can be
quite difficult. Patterns of water flow within the river must be
established by survey, and the natural process must be Identified
and qualified. In a large receiving stream with numerous
discharges, such as the Potomac, allowable waste loads must be
allocated for each discharge, to ensure that discharges do not
J4/ Unless EPA has approved a State to administer an NPDES
program under Section 402(b) of the Act, EPA is the NPDES
permitting authority.
00049
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-6-
cumulatively cause a violation of the standards. 5/ EPA
frequently must use a site-specific mathematical model to
assist in Its calculations. 6/
3.. Administrative Proceedings
In 1974, EPA Issued DES a National Pollutant Discharge
Elimination System ("NPDES") permit, J.A at 24, authorizing
and conditioning the discharges from the Blue Plains treatment
plant and overflow discharges from the combined sewer system.
MEC and others had challenged the 1S7U permit at an EPA
administrative hearing, appealed the hearing decision to the
Administrator, and sought Judicial review of the Administrator's
decision by this Court. This Court upheld only certain
challenges to the permit, and remanded the case to EPA for
further consideration. MEC I, supra.
In March, 1979, prior to this Court's decision on
the 197^ permit, DES applied to EPA for renewal of its discharge
permit, which was to expire on June 30, 1979. EPA issued
DES a new NPDES permit on July 19, 1979, J.A. at 123,
which permit is the subject of this suit. This permit sets
forth various numerical limitations and narrative standards which,
if met, would comply with the secondary treatment and water quality
requirements of the Act. Specifically, to comply with the DO and
5/ Testimony of Leo Clark, EPA Exhibit 5 ("Clark Testimony"),
J.A. at 195, I.D., Findings 18 and 19, pp. 14-16, J.A.
at SU8-350.
6/ See I.D., pp. 11-15, J.A. at 348-3^9.
00050
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- 64 -
statement of basis and purpose. EDF is requesting jthis Court to
engraft unnecessary and unrequired procedures^etTto EPA's action of
approving state water quality standards. This Court should not
consent to such a demand. As t>e Court stated in Vermont Yankee
Nuclear Power Corp. v. NRDC. -<35 U.S. 519, 543 (1978)', quoting from
FCC v. Schreiber, 381 U^. 279, 290 (1965):
Absent constitutional constraints or ex-
tremeljf^compelling circumstances the "admini-
strap£ve agencies 'should be free to fashion
th^£r own rules of procedure and to pursue
methods of inquiry capable of permitting them }' )/.
to discharge their multitudious duties.'" fit -
The District Court Properly Excluded Four Affidavits
•Submitted by EDF In Support of Its Motion for Summary Judgment On
Claim One. — Based upon motions by the federal and state appellees,
49/.
JA 905, 908, the district court excluded four affidavits sub-
mitted by EDF in support of its motion for summary judgment on
Claim One. Op in- at 5, JA 1033. The district court properly
found that its review under Claim One (EPA's 1976 approval of the
state water duality standards) should be based on the administra-
tive records Id. The court gave "a hard look at the complex
evidentiary record" and concluded on the basis of that record that
EPA's actions challenged in Claim One were not unreasonable. I_d.
at 4-12, JA 1033-1036.
49/ The 'four affidavits were from Gilbert White, JA 841, Mohaned T.
El-Ashry, JA 850, Charles W. Howe, JA 877, and Dean E. Mann,
JA 887.
00051
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- 65 -
The Supreme Court has repeatedly stated that judicial
review of administrative decisions is to be limited to the adminis-
trative record already made, and that the reviewing court is not
to allow a new record to be made in court. As the Supreme Court
summarized the matter in Federal Power Commission v. Transcontin-
ental Gas Tipe Line Corporation, 423 U.S. 326,331 (1976):
[W]e have consistently expressed the view
that ordinarily review of administrative
decisions is to be confined to "considera-
tion of the decision of the agency * * *
and of the evidence on which it was based."
United States v. Carlo Bianchi & Co. 373
U.S. 709, 714-715, (1963). "[TJhe focal
point for judicial review should be the
administrative record already in exis-
tence, not some new record initially made
in the reviewing court." Camp v. Pitts,
411 U.S. 138, 142 (1973). ~Ti the decision
of the agency "is not sustainable on the
administrative record made then the * * *
decision must be vacated and the matter
remanded * * * for further consideration."
Id. at 143.
Accord, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
420 (1971)? Richards v. INS, 180 U.S. App. D.C. 314, 318, 554 F.2d
1173, 1177 (1977); Doraiswamv v. Secretary of Labor, 180 U.S. App.
D.C. 360, 555 F.2d 832, 839-841 (1976); National Petroleum Refineries
Association v. FTC, 392 F. Supp. 1052 (D.D.C. 1974); Asarco, Inc. v.
EPA. No. 77-2822 (9th Cir. April 14, 1980), slip op. 8-15. In Overton
Park, the Supreme Court held that on remand the district court's
review of the Secretary's decision was "to be based on the full
administrative record that was before the Secrerary at the time he
ade his decision" (emphasis added). 401 U.S. at 420. EDF attempts
00052
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- 66 -
to distinguish the Court's decision in Overton Parte by arguing that
upon vemand the district court allowed in additional evidence in
the foria of affidavits. EDF Br. at 62. However, the Supreme Court
anticipated such a result in that case:
But since the bare record may not dis-
close the factors that were considered
or the Secretary's construction of the
evidence it may be necessary for the
District Court to require some explana-
tion in order to determine if the
Secretary acted within the scope of his
authority and if the Secretary's action,
was justifiable under the applicable
standard.
The Court may require the adminis-
trative officials who participated in
the decision to give testimony explain-
ing their action.
The District Court is not, however,
required to make such an inquiry. 401
U.S. at 420.
The district court in this case rejected EDF's reliance
50/
on the "narrow Overton Park exception." Opin. at 5, JA 1033.
50/ EDF's reliance on other court opinions is similarly misplaced.
The language quoted by EDF from the opinion in Bunker Kill
Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir. 1977), allowed parties to
augment the record because the court's "study of the administrative
record cast considerable doubt" on one of the agency's findings
(emphasis added). EDF Br* at 63-64. Judge Flannery had no such
doubt in this case. The holding Home Box Office. Inc. v. FCC, 185
U.S. App. D.C. 142, 467 F.2d 9, 54 (1977), does not support EDF's
argument, EDF Br. at 64, 65, because that case involved an issue
of failure to disclose information relied upon by the Agency. There
is no such issue in this case. Finally, supplemental affidavits
in National Crushed Stone Association v. EPA, 13 ERC 1277 (4th Cir.
1979), were considered on che issue of whether the Agency relied on
a technical report not available for public comment. See EDF Br.
at 64. Again, this is not an issue in this case.
00053
-------
- 5 ~
hi this Court petitions to review EPA'3 denial of the ^-dm'inistrative
petitions to review. In Octob&r-r-p^ti doners filed a petition
t0 review EPA's ia^rfince of the .IPDZS permit. All petitions
bgve b&efi consolidated in this Court.
ARGUMENT
I QWt&h
IN ISSUING THE NPDES PERMIT TO PITTSTON EPA
COMPLIED WITH ALL REQUIREMENTS OF THE
NATIONAL ENVIRONMENTAL POLICY ACT
Petitioners have challenged EPA's issuance of an NPDES
permit to Pittston on the grounds that EPA allegedly has not complied
with the requirements of NEPA. Specifically, they have alleged
both that the Environmental Impact Stiatement ("EIS") prepared by EPA
for the project was inadequate as written and that, in any event,
EPA now must supplement the EIS and include a discussion of
allegedly new information and changes in the project. Neither
contention has merit.
A. The Final Environmental Impact Statement Contains
A Full Discussion of All Factors Required By NEPA.
NEPA's primary requirement is that a federal agency
prepare a "detailed statement" on the impact of every major
federal action "significantly affecting the quality of the human
environment," 42 U.S.C 4332(2)(C). The statute also requires that
"environmental amenities and values. . . be given appropriate
consideration in decision-making along with economic and technical
considerations." 42 U.S.C. 4332(2)(B). This Court has asserted
that the preparation of an EIS server at least three purposes:
first, it acts as a tool by which to measure whether the Agency
00054
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-6-
has made a good faith effort to take NEPA considerations into
account; second, it discloses to the public the environmental
consequences of a proposed project; and thir.-i, it assures that
difficult problems or serious criticism are not "swept under the
rug." Silva v. Lynn, 482 F.2d 1282, 1284-1285 (1st Cir. 1973);
Grazing Fields Farm v. Goldschmidt. 626 F.2d 1068, 1072 (1st Cir.
1980). EPA's EIS for this project served these three purposes and
met. EPA's general obligation under the statute.
The five-volume Final Environmental Impact Statement
("FEIS"), Doc. IV-159, EPA prepared for the proposed Pittston
project is a thorough analysis of the environmental, social and
economic consequences of the project and its alternatives. It
contains a detailed discussion of the environment of the proposed
project site in Eastport, describing among other things its
geology, land use, socioeconomic characteristics, aquatic
resources, ecology, air resources, noise levels and municipal
facilties. FEIS, Part III. A detailed description of the proposed
project and an analysis of its impact upon each of these aspects
of the environment is a major part of the FEIS. Id., Parts IV
and VI. EPA also candidly identifies those adverse impacts
which cannot be avoided, and describes the measures which will
be taken to mitigate those impacts. See e.g.. the Oil Spill
Contingency Plan, id^. at IV-38 to 45 and i^d., Part VII generally.
The text of the FEIS is supplemented by almost 200 maps, figures
and tables containing supportive data and explanatory graphic
information. FEIS Vol. III. In addition, the FEIS addresses
00055
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-7-
over 320 comments made by the public and private sectors on the
draft statement. FEIS Vol-. II, Part X; FEIS Vol. IV. The record
reveals that throughout the UIS process, EPA actively encouraged
comment, criticism and participation. The FEIS itself demonstrates
that EPA consulted numerous experts, and sought cooperation from
both state and federal agencies. The FEIS complies with both the
letter and spirit of NEPA.
The specific challenges to the FEIS made by petitioners
are that the statement allegedly contains inadequate discussions of
alternatives to the project as proposed by Pitts ton and of the risk
of oil soills. Brief of Petitioner Roosevelt Campobello International
Park Commission ("Commission Brief"), pp. 7-41. The record
shows that the EIS fully discussed all reasonable and feasible
alternatives and made a careful technical assessment of the risk
of oil spills resulting from the project. The EIS has furnished
"such information as appears to be reasonably necessary under
the circumstances," New York v. Kleppe, 429 U.S. 1307, 1311 (1976),
quoting NRDC v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975), and
meets all NEPA requirements. Cf. Vermont Yankee Nuclear Corp. v.
NRDC, 435 U.S. 519, 551 (1977).
1. The EIS contains an adequate discussion of alternatives.
Congress Included in NEPA a requirement that the responsible
agency discuss "alternatives" to the proposed action in its EIS.
42 U.S.C. 4332(2)(C)(iii); see also, id. at 4332(2)(E). But the
"term 'alternatives' is not self-defining," Vermont Yankee Nuclear
Power Corp. v. NRDC, supra, and an agency is required to study
only reasonable and feasible alternatives:
00056
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- 8 -
To make an impact statement something more
than an exercise in frivolous boilerplate
the concept, of alternatives must be bounded
by some notion of feasibility.
Id. This approach to the scope of the alternatives discussion
also governs the degree to which any particular alternative must
be discussed. Grazing Fields Farm, supra, 626 F.2d at 1074;
Conservation Law Foundation v. Andrus, 623 F.2d 712, 717 (1st
Cir. 1979); Commonwealth of Massachusetts v. Andrus, 594 F.2d
872, 884 (1st Cir. 1979).
This notion is reflected in EPA's regulations regarding
the preparation of an EIS for a project applying for an NPDES
permit:
The analysis should be sufficiently detailed
to reveal the EPA's comparative evaluation of
the environmental impacts on the human environ-
ment, costs, and risks of each feasible alter-
native.
40 C.F.R. 6.924(C)(2)(1977)., Accord, 40 C.F.R. 1500.8(a)(4)
(1973) (Guidelines on preparation of an EIS issued by the Council
on Environmental Quality.)
Judicial review of the alternatives discussion in an
EIS has two dimensions. As to the procedural requirement that
alternatives adequately be discussed, this Court has held:
[T]he discussion of environmental effects
of alternatives need not be exhaustive.
What is required is information sufficient
to permit a reasoned choice of alternatives
so far as environmental aspects are concerned.
Cummlngton Preservation Comm. v. FAA, 524 F.2d 241, 244 (1st Cir.
1975), quoting NRDC v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972)
(emphasis added). As to the substantive review of the ultimate
00057
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- 9 -
choice made among the alternatives, it is well settled that:
[T]he requirement for thorough study does not
determine the result of the comparison. The
ultimate decision is left to the discretion of
the agency. Neither (.NEPAJ or its legislative
history contemplates that a court jshould sub-
stitute its judgment for that of tihe agency. . . .
The only role for a court is to insure that the
agency has taken a "hard look" at the environmental
consequences; it cannot "interject itself within
the area of discretion of the executive as to the
choice of the action to be taken."
New England Coalition v. NRC, 582 F.2d 87. 95 (1st Cir. 1978)
(emphasis added) , quoting Kleppe v. Sierra Club, 427 U.S. 390 410
n.21 (1976) (citations omitted). Accord, Strycker's Bay Neigh-
borhood Council v. Karlen, 444 U.S. 223, 227r228 (1980); Vermont
i
Yankee Nuclear Power Corp. v. NRDC, supra, 435 U.S. at 555;
Doc. X-C-l, Transcript of Administrative Hearing ("Tr."), pp.
5099-5100; 5104-5105. The discussion of alternatives in the
FEIS amply permits a "reasoned choice of alternatives," Cummingtoh
Preservation Comm. v. FAA, supra, satisfying the procedural
mandate of NEPA's alternative requirement. Further, since the!
FEIS demonstrates that EPA took a "hard look" at these alternatives,
its substantive decision that the permit should be issued
should not be disturbed.
The FEIS contains a systematic analysis of various
alternatives to the proposed oil refinery and marine terminal.
Thirteen possible sites along the east coast were screened, and
narrowed to three areas which presented reasonable and feasible
alternatives to Easport. FEIS Vol. II, V-3. These three
areas--Machias, Penobscot/Blue Hill, and Portland, Maine--were
all compared to each other and to Eastport with respect to air
00058
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quality, water quality, land and sea uses, noise, terrestrial
and aquatic flora and fauna, aesthetics, oil spills, socio-
economic considerations, weather conditions, costs, and naviga-
tional risks posed by each of these ports. Ld., Part V generally.
The FEIS also analyzes potential modification of the
proposed project at Eastport, by considering several alternate
crude oil delivery systems, including pipeline delivery from
Canada, monomooring off Lubec, Maine, and varying tanker size.
Id., V-10 to V-16, EPA also considered the "no action" alter-
native. id., V-16 to V-17; see also id., X-42 to X-46. EPA
concluded that none of these alternatives was substantially
preferable from an environmental standpoint. IcL, 1-10. This
was the basis for EPA's decision to grant, with conditions, the
NPDES permit requested by Pittston. Id., 1-3.
EPA considered a "reasonable and feasible" alternative
to the Pittston proposal to be one which "in the good judgment
of those dealing with the New England energy situation, was
practicable and would be built." Tr. 5104, JA 342. Many factors were
considered in determining which alternatives should be included
in the FEIS, that is, which alternatives were in fact reasonable
and feasible. Among them was the fact that the proposed refinery
is a privately sponsored project. Tr. 5197-5199j JA 415-417. This
limits the ability of the agency to develop alternatives to the
proposal, in part because the government cannot exercise its power of
00059
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-11-
eminent domain. 3/ Also, because this is a privately sponsored
project/ the purpose of the alternatives analysis was not to
determine the "marginal preferability" of a particular site, as
it would be in the case of a federally-funded project, but to
determine if an alternative had obvious superiority. 4/ In the
FEIS, EPa explains how it believes its role in determining obvious
superiority differs from that in determining marginal superiority:
2/ Petitioners rely on NRDC v. Morton, 458F.2d 827 (D.C. Cir.
1972) and EDF v.. Corps of Engineers. 492 F.2d 1123 (5th
Cir. 1974), which follows Morton to support its contention
that EPA is required to study alternatives that are outside of
its authority to implement. It is clear, however, that those
cases contemplate that the alternatives be within the purview of
another governmental body. Morton, for example, suggests that
the Secretary of Interior consider in his EIS on offshore oil
leasing the alternative of reducing oil import quotas because
even though such action is not within the Secretary's authority,
it is "within the purview of both Congress and the President, to
whom the Impact statement goes." 458 F.2d at 635. The suggestion
that EPA study alternatives to the Pittston,project which are.
outside its power to implement and outside the means that the1
Pittston Company might reasonably be expected to dedicate to the
project flies in the face of the concept that alternatives be
bounded by some notion of feasibility.
4/ This Court has approved the use of the obvious superiority
standard in analyzing alternatives to a privately sponsored
project. New England Coalition v. NRC, 582 F.2d at 95:
The [obvious superiority] standard is designed to
guarantee that a proposed site will not be rejected in
favor of a substitute unless, on the basis of appropriate
study, the Commission can be confident that such action
is called for. Given the necessary imprecision of the
cost-benefit analyses involved and the fact that the pro-
posed site will inevitably have been subjected to far
closer scrutiny than any alternate site, we cannot say
that it is unreasonable to insist on a high degree of
assurance that the extreme action of denying an appli-
cation is appropriate.
00060
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-12-
In the latter case [reviewing federally sponsored
projects], EPA has primary responsibility for
assuring an optimum site and the need for in-depth
analysis of alternatives i.s correspondingly greater.
In aakina decisions . • . for privately sponsored
¦projects, generally believes its role is to
determine whether the proposed site is environmentally
acceptable and not to undertake to locate what EPA
would consider to be the optimum site for a new facility.
FEIS Vol. II, 1-10.
In addition to including in its "reasonable and feasible"
calculus the fact that the proposed project was privately sponsored,
EPA also took into account its experience in siting a refinery in
Hampton Roads, Virginia, Doc. VI-8, JA 1296, and the refinery
siting discussions of the Federal Regional Counsel, Work Group on
Refineries, on which Mr. Wallace Stickney, the,EPA Region I official
with primary responsibility for preparation of the EIS, served.
Tr. 5222, 5227-5228, JA 440, 1303-1304. Also taken into considera-
tion was the State of Maine's rigorous evaluation of various potential
refinery sites in which at least four other sites had been determined
to be no better than the site proposed by Pittston. Tr. 5118-5119,
JA 356-357. In fact, the State did not suggest superior sites in
commenting on the draft EIS. Ld. EPA also considered the fact
that the proposal before the agency was for an oil refinery and
deepwater marine terminal, located to serve the New England market.
Tr. 5092, 5103-5108, JA 330, 341- 346. Finally, EPA considered that
the State of Maine had already granted a state permit to Pittston
to locate its refinery in Eastport. 5/ Tr. 5100-5101, JA 338-339.
5/ Petitioners have exaggerated the significance of EPA giving
weight to the permit issued to the Eastport site by the State
of Maine. See FEIS Vol.11, 1-11. EPA is not suggesting that Maine
did an alternatives analysis in considering Pittston's application.
(Footnote Cont'd")
00061
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- 10 -
was reasonable. Although the court's opinion expressed a pref-
erence for the "arbitrary and capricious" standardreview of
EPA"s decision not to prepare an EIS (App. a-tf 11), it found: that
the "reasonableness" standard was al&c satisfied in this case
(App. at 20, n. .3). The cou^fe-T ound that EPA had sufficiently
considered alternatives-^to the project, and that the public had
been given an .a^quate chance to participate in the decisionmaking
process-^ This appeal followed.
ARGUMENT & /'~~
EPA'S DECISION NOT TO PREPARE AN' EIS IN
CONNECTION WITH THE PROJECT WAS REASONABLE
Appellant argues that EPA violated NEPA by not preparino
an EIS in connection with its funding of the sewerage project.
The responsibility for making the initial determination of whether
an EIS should be prepared lies with the involved federal agency.
MPIRG v. Butz, 498 F.2d 1314, 1319 (8th Cir. 1974); 40 C.F.R>
6.200. The burden is on the plaintiff to show that the decision
not to prepare an EIS violates NEPA. Sierra Club v. Lynn, 502
F.2a 43, 52 (5th Cir. 1974), cert, denied, 421 U.S. 994 (1975);
Hiram Clarke Civic Club v. Lynn, 476 U.S. 421, 425 (5th Cir.
1973). This is true whether the "reasonableness" or the more
lenient "arbitrary and capricious" standard: of review is used.
Cf., e.g., Texas Committee on Natural Resources v. Bergland, 573
F. 2d 201, 206 (5th Cir. 1978) (reasonableness) with Nucleus pif
00062
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- 11 -
Chicago Home: Owners Association v. Lynn, 524' F.2d 225, 229 (7th
2/
dr. 1975) (arbitrary and capricious).
In performing its reviewing function under NEPA, the
Court7 should not substitute its judgment for that of the agency.
Vermont Yankee Nuclear Power Corp. v. WRDC, 435 U.S. 519/ 555
(1978); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 412 (1976);
Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1279-
1280 (9th Cir. 1973).
Even if the more exacting standard of review — that of
"reasonableness" — is applied to EPA's decision not to prepare
an EIS, it is clear from the record that plaintiff has not met
her burden of showing this decision to be "unreasonable."
Plaintiff disputes EPA's conclusion that the environmental impacts
of this project are not "significant," although she offers little
or nothing to support her argument that there is a significant
impact.
What follows is a summary of plaintiff's main arguments
on appeal that certain environmental impacts were not adequately
considered in the EIA:
3/ The district court found both standards were satisfied in
this case (App. at 20,. n. 3). This Court has not decided
the issue of which standard is preferable, and need not dp so
in this case, as the higher "reasonableness" standard is clearly
met. H.A.A.C.P. v. Medical Center, Inc., 584 F.2d 619, 635 n. 19
(3d Cir. 1978); Schiffler v. Schlesinger, 548 F.2d 96, 104 n. 5
(3d Cir. 1977).
000&3
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- 3 - (jM * ^
B. Factual and Regulatory Background
Industrial facilities and other non-domestic sources of
pollution generally dispose of their wastewater in one of two
ways - either "directly" into a navigable waterway or "indirectly"
into a municipal sewage treatment plant. Such treatment plants
are generally designed to remove "conventional" pollutants, such
as oxygen demanding wastes and suspended solids, to a safe and
adequate level for the purposes of water pollution control.
On the other hand, the discharge of non-conventional
pollutants, particularly toxic pollutants, into a treatment
plant may cause significant problems, since sewage treatment
plants are not usually designed to treat these kinds of pollutants.
For example, such pollutants may interfere with the plant's
operation, eventually causing it to treat inadequately conventional
domestic wastes. These pollutants may also pass through the
treatment plant into navigable waters without any treatment,
thereby causing unacceptable levels of water pollution. Finally,
toxic or nonconventional pollutants may settle in and contaminate
the sludges produced by sewage treatment plants, thereby potentially
causing significant sludge management problems. 2/
To combat these problems, Congress directed EPA to
establish national pretreatment standards, applicable to existing
2/ For example, sludge which is contaminated with heavy metals
or other toxic materials can be rendered unusable as soil
conditioner because of the danger to crops and drinking water
supplies. A-4.
00C64
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- 4 ^
«nd new sources of pollution, to prevent the discharge into a
treatment plant of any pollutant that "interferes with, passes
through, or otherwise is incompatible with ... [publicly owned
treatment] works." Section 307(b)-(d); 33 U.S.C. §13l7(b)-(d). 3/
To ensure adequate enforcement of the pretreatment standards
promulgated under Section 307(b), Congress also, provided in
Section 402(b)(8) of the Act, 33 U.S.C. 51342(b)(8), that municipal
sewage treatment plants must identify the character and volume
of pollutants introduced by "significant" indirect sources subject
to the Section 307(b) pretreatment standards. Section 402(b)(8)
further provides that treatment works must establish a program
to assure compliance with pretreatment standards by these sources.
EPA has sought to implement these statutory requirements
through a two-pronged regulatory approach. First, EPA promulgated
the General Pretreatment Regulations for Existing and New Sources,
43 Fed. Reg. 27736 (June 26, 1978), as amended, 46 Fed. Reg. 9404
(Jan. 28, 1981), now codified at 40 C.F.R. Part 403 (1981), portions
of which are challenged in this lawsuit. The General Pretreatment
Regulations establish general mechanisms and procedures governing
the discharge of pollutants from all categories of non-domestic
3/ Section 307(b)(1) also provides that where a treatment plant
removes all or part of any toxic pollutant introduced by a
source, and where the discharge from the treatment plant into
navigable waters does not violate limitations or standards
applicable to that toxic pollutant, EPA may revise the pretreatment
requirements applicable to the source to reflect the removal of
the toxic pollutant by the'treatment plant. 33 U.S.C. 51317(b)(1)j
00065
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- 5 -
sources into publicly owned treatment works (POTWs). 4/ in separate
rulemaking proceedings, EPA has also been developing the second
prong of its program: numerical pretreatment standards applicable
to specific categories of industrial operations which limit the
dischar e of pollutants into POTWs. For example, nationwide
categorical standards have been promulgated for the timber products
industry, the electroplating industry and the iron and steel
industry. JT/ These categorical standards are based upon the
indirect dischargers' technological ability to treat pollutants.
The process of developing pretreatment standards under
Section 307(b) and the technology on which those standards are
based are closely analagous to the approach for regulating direct
dischargers under-Sections 301, 304 and 306 of the Act, 33 U.S.C.
§51311, 1314 and 1316. Accordingly, it is appropriate to review
at the outset these statutory provisions.
Section 301(b) of the Clean Water Act requires existing
facilities which discharge pollutants directly into navigable waters
to meet a two-step reduction in their effluents. The first step,
which must be accomplished by July 1, 1977, requires such sources
4/ The General Pretreatment Regulations basically establish:
~ (1) a framework for the application of categorical pretreatment
standards to industrial sources; (2) certain general prohibitions
against discharges of pollutants which could create a fire explosion
hazard, cause corrosive structural damage or otherwise interfere
with the operation of POTWs; and (3) requirements for i.ocal POTWs
or states to develop local compliance programs to insure that
industrial sources comply with the general discharge prohibitions
and the categorical pretreatment standards. 40 C,F»R. Part 403-
5/ See 46 Fed. Reg. 8260 (Jan. 26, 1981) (amending 40 C.F.R. Part
~ VFT) • 46 Fed. Reg. 9462 (Jan. 28, 1981) (amending 40 C.F.R. Part
413V 47'Fed. Reg. 23258 (May 27, 1982) (amending 40 C.F.R. Part 420).
00066
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- 6 -
to meet limitations based on the application of the "best practicable
control technology currently available [BPT]." §301(b)(1)(A), 33
U.S.C. 51311(b)(1)(A). The second step, to be accomplished by
July 1, 1984, requires sources to meet limitations for toxic
pollutants based on the application of "best available technology
economically achievable [BAT]" and limitations for conventional
pollutants based on the application of "best conventional pollutant
control technology [BCT]§301(b)(2)(A), (C), (E), 33 U.S.C.
51311(b)(2)(A), (C), (E). New sources must meet limitations for
both toxic and conventional pollutants based on "best available
demonstrated control technology" §306, 33 U.S.C. §1316. The
statute specifies factors which EPA must consider in determining
each of these technological standards. See, e.g., 33 U.S.C.
551314(b)(1)(B), 1314(b)(2)(B) and 1316(b)(1)(B). These limitations
are to be applied to individual dischargers by virtue of the
National Pollutant Discharge Elimination System ("NPDES") permit
program established by Section 402, 33 U.S.C. §1342. 6/
Congress thus established in Sections 301, 304 and 306
certain guidelines for the agency to follow in establishing
effluent limitations and new source performance standards
applicable to direct dischargers. In Section 307(b), however,
Congress was less specific. The statute does not dictate a
6/ These statutory provisions have been carefully examined by the
U.S. Supreme Court in EPA v. California ex rel. State Water
Resources Control Board, 426 U.S. 200 (1976) and' E.I. duPont de
Nemours & Co. v. TrainT 430 U.S. 112 (1977) and by this court in
American Iron and Steel Institute v. EPA, 526 F.2d 1027 (3d Cir.
13757: !
00067
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- 7 -
particular method for establishing pretreatment standards.
However, the legislative history of Section 307(b) does provide
guidance.. The Conference Report on H.R. 3199, which became the
Clean Water Act of 1977, states:
Under the amendment to Section 307(b) the
Administrator would establish national
pretreatment standards for toxic pollutants
based on the best available technology
economically achievable, or any more stringent
effluent standard under Section 307(a).
H.R. Rep. No. 95-830, 95th Cong., 1st Sess. 87, reprinted in A
Legislative History of the Clean Water Act of 1977, Coram, on Env.
and Public Works, No. 95-14, 95th Cong., 2d Sess. 271 (1978)
(hereinafter cited as "Leg. Hist.") (emphasis supplied).
Thus, EPA is developing categorical- pretreatment standards
based on "best available technology economically achievable" [BAT],
pursuant to Section 307(b) of the Act. These pretreatment standards
applicable to indirect discharges are comparable to the BAT
effluent limitations established for direct discharges under Section
301(b) of the Act. Furthermore, in keeping with the statute's
two-step approach to regulating direct dischargers, EPA has also
promulgated pretreatment standards for many industries based on
technologies analagous to BPT-level treatment. See, e.g., 41 Fed.
Reg. 53930 (Dec. 9, 1976) (amending 40 C.F.R. Part 429); 44 Fed.
Reg. 52590 (Sept. 7, 1979) (amending 40 C.F.R. Part 413).
Neither the validity of EPA's approach to pretreatment,
nor any specific categorical standard, is before this Court in
the instant litigation. Rather, NRDC challenges two provisions
of the General Pretreatment Regulations. NRDC first challenges
00068
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- 8 -
EPA's definition of "new source," 40 C.F.R. §403.3(k), which
identifies those industrial facilities subject to the potentially
more stringent categorical pretreatment standards for new sources,
required by Section 307(c) of the Act, 33 U.S.C. §1317(c), as
distinguished from those subject to the pretreatment standards for
existing sources under Section 307(b) of the Act. Second, NRDC
disputes EPA's authority to promulgate the "fundamentally different
factors variance," 40 C.F.R. §403.13. This provision permits an
individual industrial facility to obtain a variance from the
nationwide categorical pretreatment standards, making them either
more or less sxringent, if the facility demonstrates that it has
factors fundamentally different from those considered by EPA
during development of the categorical standard. 7/
C. Ptocedural History
The General Pretreatment Regulations for Existing and
New Sources Were originally promulgated on June 26, 1978, and
took effect on August ^8, 1978. 43 Fed. Reg. 27736 (June 26,
1978). Following promulgation. several petitions for review
were filed under Section 509(b) of "the Act, 33 U.S.C. §1519.
The actions were subsequently consolidated in- the United States
Court of Appeals for the District of Columbia under" -the caption
Natural Resources Defense Council, Inc., et al. v. Environmental
7/ Both the "new source" definition and the "fundamentally different
~~ factors" variance provision of the General Pretreatment Regulations
have comparable provisions applicable to direct discharges. See
40 C.F.R. §122.3 (A-63) and §125.30 (1981). These latter provisions
are found in the Consolidated Permit Regulations and are presently'
subject to challenge in the District of Columbia Circuit in
Natural Resources Defense Council v. EPA, No. 80-1607 (D.C. Cir.,
filed-June 2, 1980).
00069
-------
- 12
establishment of an effective date for the amendmenfes^and an
opportunity.'to comment on whether a deferral is appropriate, and
an expanded basis for judtciaJ^review of the agency's action. A
decision by this as to the merits of NRDC's claims would
therefore be purely advisory.
Under Article III of the United States Constitution,
the jurisdiction of the federal courts is limited to chose suits
presenting a "case or controversy." DeFunis v. Odegaard, 416
U.S. 312 (1974); Liner v. Jafco, 375 U.S. 301 (1964). This
constitutional requirement has long been interpreted to preclude
Article III courts from issuing advisory opinions. Haybum's
Case, 2 U.S. 409 (1792), as interpreted in Huskrat v. United
States, 219 U.S. 346 (1911). The federal courts are similarly
without power to make determinations which cannot affect the
rights of the parties in the particular case before them. North
Carolina v. Rice, 404 U.S. 244, 246 (1971); Oil Workers Union v.
Missouri, 361 U.S. 363, 367 (1960).
The standard for distinguishing between a suit presenting
a justiciable "case or controvery" and one Chat is moot was sec
forth by the Supreme Court in Aetna Life Ins. Co. v. Haworth, 300
U.S. 227, ,240-241 (1937): a justiciable controversy
must be definite and concrete, touching the
legal relations of parties having adverse
legal interests.... It must be a real and
substantial controversy admitting of specific
relief through a decree of a conclusive1
character, as distinguished from an opinion
advising what the law would be upon a
hypothetical state of facts.... (citations
omitted)
A. This Suit Presents Wo Case or Controversy
00070
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- 13 -
See also Preiser v. Newkirk, 422 U.S. 395 (1975). Judged by this
standard, the case at issue presents no justiciable case or
controversy and,must be dismissed as moot.
The deferral of the effective date has been terminated.
Absent further action by EPA, the amendments will go into effect
on January 31, 1982. Moreover, NRDC has been given the opportunity
it seeks to comment on whether the amendments, or portions thereof,
should be deferred pursuant to E.O. 12291. At the same time,
should EPA decide to defer the amendments further, it will have
an opportunity to provide a reviewing court with an expanded
statement of the basis for that action. 12/ This case thus does
not "admit of specific relief through a decree of conclusive
character."
The instant case has thus become hypothetical in nature.
The existence of a controversy depends on the "mere possibility"
that EPA will in the future defer the amendments without notice
and comment. See Dow Chemical Co. v. EPA, 605 F.2d 673 (3d Cir.
1979). Such a hypothetical controversy, however, is not sufficient
to satisfy the limits on federal court jurisdiction imposed by
Article III. Moreover, a deferral without'notice and comment
is no longer even a possibility since EPA has already taken
action to provide the opportunity for comment NRDC seeks. Nor
is it clear that EPA will defer the amendments beyond the
12/ EPA believes, however, that its original explanation for the
deferral was entirely adequate. See discussion, infra at
25-28.
00071
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B. THE STATUTORY FRAMEWORK
1. The Regulatory Scheme of the 1972 Clean Water Act
The goal of the 1972 Clean Water Act, 33
U.S.C. JL251 et seq., is unambiguous - "to restore and maintain
the chemical, physical, and biological integrity of the
Nation's waters." Section 101(a), 33 U.S.C. 1251(a). To
achieve that goal, Congress declared as a national policy
that the discharge of pollutants "be eliminated by 1985"
(Section 101(a)(1), 33 U.S.C. 1251(a)(1)). As an interim
goal, Congress directed that water quality adequate to assure
"the protection and propagation of fish, shellfish, and
wildlife" and to provide "for recreation in and on the water
be achieved by July 1, 1983". Section 101(a)(2), 33 U.S.C.
1251.
In the 1972 Act, Congress established a regulatory
scheme that prohibits any discharge of pollution from an individual
point source into navigable water unless the source has been
issued a discharge permit. Section 402, 33 U.S.C. 1342. See
generally, EPA v. California ex rel. State Water Resources Control
Board., 426 U.S. 200 (1976). Pollution discharge is authorized
only if the discharge will not exceed both the water quality
standards set under Section 303, 33 U.S.C. 1313,- and the
national technology-based effluent limitations set under
Sections 301 and 304, 33 U.S.C. 1311 and 1314.
In its consideration of the 1972 Act, Cpngress
determined that regulation based on local ambient, water standards
00072
-------
- 5 -
alonelrfcad proven unenforceable and ineffective. EPA v. California
ex rel. Water Resources Control Board, 426 U.S. 200, 204 (1976).
See also Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1042-44
(D.C-!j.|Cir. 1978) and Consolidation Coal Co. v. Costle, 604
F.2d ;239, 245 (4th Cir. 1979). Congress, therefore, turned to a
regulatory program that focused on the "preventable causes" of water
pollution-, rather than on an attempt to set allowable discharge
levels based on their "tolerable effects." EPA v. California,
426 TJ.S. ait 202. As the Court stated:
[A] discharger's performance is now measured
against strict technology-based effluent limi-
tations - specified levels of treatment - to
which it must conform; rather than against
limitations derived from water quality standards
to which it and other polluters must collectively
conform. _Id. at 204-205.
Specifically, industrial pollution sources were
required to achieve by July, 197.7, effluent limitations based
on "the best practicable control technology currently available"
(BPT). By July 1, 1983, these dischargers were required to meet
the more stringent effluent limitations based on the "best
available technology economically achievable" (BAT). Sections
301 and 304, 33 U.S.C. 1311 and 1314. The BPT and BAT limitations
are easea on the technological and economic capacity of
different categories of pollution sources to limit their
pollution discharges. See E.I. duPont de Nemours & Co. v. Train,;
430 U.S. 112, 116-121 (1977); Consolidation Coal Co. v. Costle,
604 F.2d 239 (4th Cir. 1979); Weyerhaeuser Co. v. Costle,
590 F.2d 1011 (D.C. Cir. 1978).
Congress established an analogous regulatory system
for publicly owned treatment works (POTWs). By July 1, 1977.
00073
-------
all existing POTWs and those receiving federal construction
funding approval prior to June 30, 1974, were required to apply
2/
"secondary treatment'1. Sections 301(b)(1)(B) and .304(d) (1),
33 U.S.C. 1311(b)(1)(B) and 1314(d)(1), By July 1, 1983,
all POTW's which received federal construction funds after
June 30, 1974, must apply "the best practical waste treatment
technology." Sections 301(b)(2)(B) and 301(g)(2) 33 U.S.C.
1311(b)(2)(B) and 1281(g)(2).
2. The 1977 BCT Amendment to the Act
On December 27, 1977, Congress amended the 1972
3./
Act. to make what Senator Muskie described as a "midcourse
correction". 123 Cong. Rec. S19.637 (daily ed. Dec.
15, 1977) reprinted in A Legislative History of the Clean Water
Act of 1977, Vol. 3 at 425, (hereinafter referred-to as Leg.
Hist., Vol. at ), App. at . The "thrust" of the amendments
was "to improve the tools available to the Administrator of EPA"
and "to make much more flexible those requirements of the act
which would otherwise demand a greater investment in regulatory
resources and economic investment than benefits derived from
the effluent reductions would achieve." Id.
2/ The agency has set by regulation the levels of effluent
"" reduction required through secondary treatment (40
C.F.R. 133.102) as is required by Section 301(b)(1)(B), 33
U.S.C. 1311(b)(1)(B).
3/ Senator Muskie is Chariman of the Senate Subcommittee
on Environmental Pollution. He was also a member of
the Conference Committee and presented the Conference Bill
to the Senate. In addition, Senator Muskie was Vice-Chairman of
the 1976 National Commission on Water Quality. The Supreme Court has
described the Senator as "perhaps the [1972] Act's primary author."
E.I, du Pont de Nemours & Co. v. Train, 430 U.S. 112, 129 (1977).
00074
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- 7 -
One change was the replacement of the July 1, 1983
•4/
.BAT ;effluent limitation requirement for conventional pollutants
with a more flexible "best conventional technology" effluent
limitation requirement. Section 301(b)(2)(E) and 304(b)(4),
33 U.S.C. 1311(b)(2)(E) and 1314(b)(4). The new BCT provision
of Section 301(b)(2)(E) requires that by July 1, 1984, industrial
point :sources must reduce their discharges of conventional
pollutants to the degree attainable from the application of
"the best conventional pollutant control technology." Id.
Congress did not specify a precise level of pollution
control required under the BCT standard, but rather, as it had with
the effluent limitation provisions of the 1972 Act, delegated
broad discretion to the Administrator to set the level of
control required. Compare Sections 304(b)(1) and 304(b)(2),
33 U.S.C. 1314(b)(1) and 1314(b)(2) with Section 304(b)(4),
33 U.S.C. 1314(b)(4). Section 304 requires, however, that
the Administrator consider whether the cost and level of the
effluent reduction benefits achieved from the application of BCT
are reasonable based on comparison to the cost and level of effluent
57 Congress defined "conventional pollutants" in Section
304(a)(4), 33 U.S.C. 1314(a)(4), as "including but not
limited to, pollutants classified as biological oxygen demanding
[BOD], suspended solids [TSS], fecal coliform, and pH [an
index,of acidicity or alkilinity] ." In addition, Section
304(a)(4) directed the Administrator to identify and publish
a list of any other pollutants which he determined should be
regulated as conventional pollutants. Under that authority,
the Administrator added oil and grease to the statutorily
defined list of conventional pollutants. 44 Fed. Reg. 44501
(July 30, 1979). Congress similarly defined certain pollutants
as toxic pollutants. See Section 307(a)(1), 33 U.S.C. 1317(a)(1).
00075
-------
- 8 -
5/
reduction achieved at publicly owned treatment works (POTWS).
C. THE LEGISLATIVE HISTORY
The legislative history of the BCT amendment makes
;clear that its purpose is to engraft into the federal water
pollution control program a concept of cost reasonableness for
conventional pollutants. In addition, the legislative history
is clear that Congress intended that EPA determine reasonable
effluent reduction levels for industry by using a comparison
test based on the cost and level of effluent reduction reasonably
achieved at municipal systems.
During the Congresssional consideration of the 1977
6/
amendments, experts questioned the 1972 Act's
automatic requirement under the BAT provision of Section 304(b)
(2)(B) that all pollutants be regulated to the maximum level
technologically and economically feasible. They suggested
51 Section 304(b)(4)(B), 33 U.S.C. 1314(b)(4)(B),
provides that the Administrator shall consider certain
factors which include inter alia:
Consideration of the reasonableness of the the relation-
ship between the costs of attaining a reduction in
effluents and the effluent reduction benefits derived,
and the comparison of the cost and level of reduction
of such pollutants from the discharge from publicly
owned treatment works to the cost and level of reduc-
tion of such pollutants from a class or category of
industrial sources.
.6/ See S. Rep. No. 95-370, 95th Cong., 1st Sess. 42
(1977), (hereinafter S. Rep. at ), Leg. Hist. Vol.
4 at 675, App. at .
00076
-------
. 9 -
that maximum.treatment is unnecessary for all pollutants.
They contended that the statute should differentiate between
the-treatment requirements for the better understood pollutants
such las BOD, pH and TSS, and other pollutants such as toxic
chemicals where the full hazards, even at low levels, are
unknown.
EPA had already reached the same conclusion.
The EPA Assistant Administrator for Water and Hazardous
Materials, Thomas Jorling, testified that EPA was developing
a regulatory strategy which differentiated between conventional
7/
pollutants and other pollutants such as toxic chemicals.
Under this strategy, EPA was reviewing the "reasonableness"
of the existing BAT guidelines for conventional pollutants.
The Assistant Administrator stated:
Where the BAT standards result in
-additonal costs that appear unrealistic in
light of the associated incremental' reductions
in pollutant loadings, the standard's will be
appropriately modified. Id. at 1103-
The agency's review had shown that the BAT guidelines for
certain industries were not cost-effective and that for
other industries the guidelines appeared reasonable. The
agency had found, for example, that the incremental cost for
BOD reductions between BPT and BAT for certain industries
"is far below even the cost of secondary treatment for municipal
systems in terms of cost per pound of pollutant removed." Id.
7/ Testimony before the Senate Committee on Environmental
"" : and Public Works, Subcommittee on Environmental Pollution
(June 30, 1977), Leg. Hist. Vol. 4 at 1102-1104, App. at
00077
-------
- 10 -
(Emphasis added) Id. The Assistant Administrator concluded
that the comparision to municipal secondary treatment levels'
"is not a hard-and-fast test of what BAT should be for:industry,
but it:tends to substantiate the point that in some industries
additional controls for conventional pollutants can be 'obtained
under BAT for very reasonable costs." Id.
The Assistant Administrator also testified that it '
was EPA's interpretation that the Act's BAT provision did
not prohibit consideration of the reasonableness of a BAT
guideline in terms of its cost-effectiveness for conventional
pollutant control. He stated, however, that if the Act did
not provide "suitable flexibility" to consider such factors,
EPA would seek an amendment to the statute. Id.
The Senate Committee concluded that the statute did
not provide such flexibility. The Senate Committee Bill
accordingly added a new section which authorized modification;
of an existing BAT guideline on a case-by-case basis. Section
26 of S1962, Leg. Hist. Vol. 4 at 582-583, App. at . The
provision permitted a waiver for conventional pollutants if
the effluent limitation was reasonable in terms of cost,
would not interfere with the local water quality standards,
and. would not require other sources to increase their effluent
00078
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- 11 -
reductionsv ~ As the Senate Committee Report stated, the
provision was added "to assure that reasonableness occurs"
in the regulation of conventional pollutants and to1 provide
i"a safety valve in the event that the courts find he does
not have flexibility" under the 1972 Act. Senate Report at 41,
Leg. Hist. Vol. 4 at 674, App. at . The Committee Report
stressed that the existing BPT levels "must not be relaxed"
and that the BPT levels be a "floor" for any proposed modification.
Id. at 677, App at . The House Committee Bill, in contrast, made
no change to the BAT provisions for setting effluent limitations-.
The Conference Committee adopted the general thrust
behind the Senate provision but went a step further. It
added a new effluent reduction standard for conventional
pollutants. The new standard — best conventional pollutant
control technology -- did not mean, however, that industrial
discharges of conventional pollutants necessarily would stay
at the 1977 BPT effluent levels. In fact, as the Conference
Committee Report explained, the BCT standard could result
in effluent, reduction requirements between, or at, the
existing BPT and BAT levels.
The result of the cost test could be a 1984
requirement which is no more than that which
would result from best practicable technology
but also could result in effluent reductions equal
to that required in application of best available
technology. Conference Committee Report at
85; Leg. Hist. Vol. 3 at 269, App. at .
8/ The provision prohibited the Administrator from modifying
a BAT effluent limitation for toxic or hazardous discharges.
Section 26 of S1962, Hist. Vol. 4 at 583, App. at .
00079
-------
- 12 -
The statements of Senator Muskie and Representative
Roberts 'on! the conference bill further explicate the Congressional
interiti. fcehind the BCT amendment. In Senator Muskie's opening
remaxKa'i ;he emphasized that the major effect of the BCT
amendment was to introduce "a new cost effectiveness test"
inttf.ljttie setting of effluent limitation guidelines for conventional
pollufcArits. Leg. Hist. Vol. 3 at 427, App. at . He emphasized,
however;,, that while the new BCT standard could mean that for
some industries the effluent reduction requirements of the
existing BAT guidelines would be relaxed, "[i]n many cases
no change or only a modest change may be required." Id. at 458,
App. at .
Senator Muskie also noted that although the bill
does :uot specify the exact level of control required under
BCT,. it does provide EPA with guidance for determining a
reasonable level, namely "comparison of the cost for industry
to the costs for municipalities". I_d. at 427. App. at _.
Senator Muskie explained why this comparison test was incorporated
into the Act:
Clearly, if the cost of achieving a
certain level of reduction of conventional
pollutants for industry is less than the cost
of achieving a similar level of reduction for a
community, it would be reasonable. Id.
He stated that the Administrator also could consider any other
appropriate factor. Id.
00080
-------
Representative Roberts presented the same basic
explanation of the BCT amendment in his statement to the
House on the conference agreement. See Leg. Hist. Vol. 3 at;
326-331, App. at . As did Senator Muskie, Representative
Roberts stressed that the discharge of toxic pollutants
should continue to be controlled by the 1984 BAT standard of
Sections 301 and 304. Id. at 326-330. He then explained
that for conventional pollutants, the maximum level of control
should not automatically be required and that EPA should consider
the reasonableness of the effluent reduction required in
relation to the effluent reduction benefits derived. Id. at
330. He illustrated the concept by stating:
Essentially, we are talking about removing
additional "cheap pounds" of conventional
pollutants. Stated another way, BCT imposes a
level of control technology which anticipates and
accepts the possiblity of an increase in stringency
beyond BPT, but not resulting in increased costs
beyond the "knee of the curve", the take-off point
where incremental costs begin to exceed incremental
benefits. Id.
Consistent with Senator Muskie's remarks, Representative Roberts
also stated that the comparison of costs and.levels of effluent
reduction between POTWs and industrial sources "is appropriate
in making these determinations of reasonableness." Id.
00081
-------
on November 23, 1981, the City set out the construction schedule for
1/
the Gude Drive extension. On December 21, 1981, apjfellants moved
the district court for an injunction pending apjTeal. After receiv-
ing a response to that motion from the Ci£y, the district judge, on
December 31, 1981, denied the motipri. In denying the motion the
district judge stated that:
Balancing Jfelfe harm to plaintiffs and
defendants the issuance of an injunc-
tion or^pkedenial thereof, I am satisfied
that public interest and justice are
bet^fe^r. served by denying the motion.
(See atptfchraent 3 Appellants' Memorandum.)
Stir
¦// ft
ARGUMENT 'J"/r
I
STANDARD OF REVIEW
It is well established in this Circuit that an appellate
court, in deciding whether to grant or deny a motion for ar. injunc-
tion pending appeal, must consider the following four factors:
1. Has the petitioner made a strong showing
that it is likely to prevail on the merits
of its appeal?
2. Has the petitioner shown that without such
relief it will be irreparably injured?
3.. Would the issuance of the stay substantially
harm other parties interested in the proceed-
ings?
4. Where lies the public interest?
?.
1_/ See - attachment 1 to Memorandum In Support Of Plaintiff-
Appellants' Motion For An Injunction Pending Appeal, hereinafter
cited as "Appellants' Memorandum.
00082
-------
- 4 -
rlackvelder Furniture Co. v. Selig Manufacturing Co. , 550 F.2d 189.
193 (4th Cir. 1977); First Citizens Earfc & Trust Co. v. Camp, 432
r.2d 481, 483 (4th Cir. 1970); Long v. Robinson, 432 F.2d 977, 979
(4th Cir. 1970); Airport Commission of Forsyth County v. CAB, 296
F.2d 95, 96 (4th Cir. 1961). See Virginia Petroleum Jobbers A'ss'n
v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958).
Appellant's contend, in their memorandum supporting their
Motion for an Injunction Pending Appeal, that in granting or denying
an injunction pending appeal the appellate court need only balance
the hardships to the parties involved and determine whether there
are serious questions presented for review. This clearly is not the
standard in this Circuit for determining whether or not to issue an
injunction pending appeal (Appellants' Memorandum at 3).
This Court in Blackwelder Furniture Co. v. Selig Manufac-
turing Co., supra. 550 F.2d 189, clearly reaffirmed the vitality of
the four requirements set out in Airport Commission of Forsvth
County v. CAB, supra. In Blackwelder, this Court found that while
a district court may properly balance the hardships in granting or
denying a preliminary injunction, an appellate court's grant of an
injunction or stay pending appeal clearly depends upon the moving
party first establishing a "'strong showing' of probable success on
appeal. * * *." Absent this strong showing "there is no justification
for the [appellate] court's intrusion into the ordinary processes of
administrative and judicial review." Blackwelder Furniture Co. v.
Seiig Manufacturing Co., supra, 550 F.2d at 194, quoting Virginia
00033
-------
- 5 -
Petroleum Jobbers Asb'd v. FPC, supra, 259 259 F.2d at 925. Then
this Court, citing Long v. Robinson, supra, 432 F.2d 977, further
states that the "strong showing" requirement iespecially applies in
those cases in which the district court has "fully considered the
cerits of the controversy, rendered [a] final decree, and refused
the request for an interim stay." Blackwelder, supra, 550 F.2d at
194 (emphasis in original).
The present case fits the precise pattern described in
Blackwelder for the "strong showing" standard1. Here the district
court, in the context of cross motions for summary judgment, fully
considered the merits of the case and rendered a final decree com-
pletely denying appellants1 claims for relief. The sace district
court refused a request for an injunction pending appeal made by
appellants' pursuant to Rule 62, Fed.R.Civ.P. Thus, it ls clear
that appellants' must fully meet the four requirements necessary for
the imposition of an injunction pending appeal. Appellees sub-jit
that appellants have failed to meet their burden on all four grounds.
Appellant's reliance oh the "balancing of hardships" test
is misplaced. The cases cited to support this test deal either with
the "issuance of a preliminary injunction, North Carolina State Ports
Authority v. Dart Containerize Co., 592 F.2d 749 (4th Cir. 1974;),
or with an admittedly difficult or.novel question of law. Washington
Area Metropolitan Transit Commission v. Holiday Tours. Inc., 559
F.2d 841 (D.C. Cir. 1977). Here appellant's are of Course not seek-
ing a preliminary injunction, and no novel or admittedly difficult
question of law is involved.
00084
-------
- B -
B. The Statutory Scheme
In 1972, Congress substantially rewrote the federal law
governing water pollution in order "to restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters." Federal Water Pollution Control Act Amendments of 1972,
Pub. L. No. 92-500, Section 101(a), 86 Stat. 816, 33 U.S.C. 1251
(a). The approach of the 1972 Amendments, now referred to as the
Clean Water Act (see n.2, supra), is to control the
discharge of pollutants at their source by prohibiting any
discharge without an. NPDES permit. Sections 301(a) and 402 of
the Act, 33 U.S.C. 1311(a) and 1342. See generally, EPA v. State
Water Resources Control Hoard, 426 U.S. 200, 203-208 (1976). Such
a permit "serves to transform generally applicable effluent
limitations and other standards - including those based on water
quality - into the obligations (including a timetable for
compliance) of the individual dischargers * * JUi. at 205.
The Act applies to all "waters of the United States," a term
which includes "wetlands." Sections 301(a), 502(7) and (12), 33
6/
U.S.C. 1311(a), 1362(7) and 12; 40 C.F.R. 122.3(t)(6) (1979).
NPDES permits may be issued by EPA pursuant to Section
402(a) of the Act, 33 U.S.C. 1342(a). However, consonant with :
6/ EPA defines "wetlands" as
those areas that are inundated or
saturated by surface or ground water
at a frequency and duration suffi-
cient to support, and that under
[Footnote continued on next page.]
00085
-------
- 9 -
its policy "to recognize, preserve, and protect the primary
responsibilities and rights of the States to prevent, reduce, and
7/
eliminate pollution," Congress also provided that a state
tnay administer "its own permit program" by submitting for EPA's
approval the program it proposes to establish and administer
"under State law." Section 402(b), 33 U.S.C. 1342(b). The
Administrator '"shall" approve the submitted program unless the
state lacks adequate authority to achieve the ends of Section
402(b) (1 )-(9), ibid. , and "shall suspend the issuance of permits"
by EPA as to those waters covered by the approved state program.
Section 402(c)(1), 33 U.S.C. 1342 (c)(1).
[Footnote continued from previous page.]
normal circumstances do support,
a prevalence of vegetation typically
adapted for life in saturated soil
conditions. Wetlands generally in-
cluded playa lakes, swamps, marshes,
bogs, and similar areas such as
sloughs, prairie potholes, wet
meadows, prairie river overflows,
mudflats, and natural ponds * * *.
40 C.F.R. 1 22. 3(t) (6) (1 979). The U.S. Army Corps of Engineers,
which administers a separate permit program for dredge-and-fill
activities under Section 404 of the Act, 33 U.S.C. 1344, has
adopted a practically identical definition. 33 C.F.R. 323.2(c)
(1 979).
7/ Section 101(b), 33 U.S.C. 1251(b).
00086
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- 10 -
EPA, however retains supervisory authority over approved
statej:programs. Except to the extent EPA has waived review for
particular classes of point sources or for a particular permit,
Sections 402(d) (3),(e), 33 U.S.C. 1342(d) (3),(e), each permit
application to the state and each permit proposed to be issued by
the state must be submitted to EPA. Section 402(d)(1), 33 U.S.C.
1342(d)(1)- No permit may issue if EPA objects that its issuance
would be "outside the guidelines and requirements" of the Clean
water Act. Section 402(d)(2), 33 U.S.C. 1 342(d)(2). And if the
Administrator finds that a state is not administering its program
in accordance with the Act's requirements, EPA may withdraw its
approval and resume issuance of federal permits. Section 402(c)(3),
33 U.S.G. 1 342(c) (3).
The Act gives EPA broad enforcement authority, including
the power to. issue compliance orders and to sue in United States
district courts to conp.el compliance and for imposition of civil
ana criminal penalties. Section 309, 33 U.S.C. 1319. Although
the conditions for approval of state permit programs include
sufficient state authority to enforce compliance, EPA's independent
enforcement authority under Section 309 is not limited where a state
is operating its own approved program. Section 402(i), 33 U.S.C.
1342(i). EPA remains responsible for enforcement against individual
violators where the state fails after notice to undertake appro-
priate enforcement action, and may assume enforcement entirely for-
00087
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- 11 -
a state ;wbere such violations are so widespread as to indicate a
general failure of effective state enforcement. Sections 309(a)(1),
(2), 33 tJiS.C. 1319(a) (1), (2).
The Clean Water Act establishes a scheme for judicial
review ofiEPA1s actions by the federal courts. EPA action in
"making any determination as to a State permit program" submitted
under Section 402(b), and EPA's "issuance or denial of any permit"
under Section 402 are to be reviewed directly by the appropriate
United states courts of appeals. Section 509(b)(1)(D), (F), 33
U.S.C. 1369(b)(1)(D), (F). EPA actions which coul.d have been
reviewed in this fashion are not reviewable in subsequent civil
or criminal enforcement proceedings, which EPA may, initiate in
the federal district courts. Sections 509(b)(2), 309(b), 33
U.S.C. 1369(b)(2), 1319(b). Section 505(a) of the'Act, 33 U.S.C.
1365 (a), authorizes "any citizen" to bring a civil action, in the
federal district courts for enforcement of the Act iagainst dis-
chargers of pollutants, and against the Administrator for alleged
failure to perform any act or duty which is not discretionary
under the Act. The Act makes no provision for federal judicial
review of the actions of the states in operating approved NPDES
programs.
At this writing, thirty-ww^ee states operate their own
NPDES programs, and now administer some 40,000 permits'. EPA
administers some 15,000 NPDES permits in the remaining states.
00088
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- 12 -
'California's NPDES program was approved by the EPA on
May 14]'|j?73» and it became the first state to operate its own
program.1 Under the State's Porter-Cologne Water Quality Act,
Cal. ,Stat. 1969, Ch. 482, Ch. 800, its existing water quality
planning and,regulatory system were administered by the State
Board, which had statewide responsibility, and by nine regional
boards, each with jurisdiction over a portion of the-State. See
generally, R. Robie, N. Hume, Practice Under California's New
Water Quality Control Act, 45 L. A.. Bar Bull. 1 77 (1 970).
Following, passage of the Federal Water Pollution Control Act
Amendments of 1972, California retained its existing statutory
scneTne,' but added provisions (Cal. Water Code § 1 3370-13389) to
assure^compliance with the requirements of the Clean Water Act
"in order, to avoid direct regulation by the federal government
of persons^already subject to regulation under state law * *
Cal. Water Code § 13370.
-ARGUMENT
I
THE CLEAN WATER ACT PXECLUDES
EXERCISE OF STATE COURT JURISDICTION
OVER THE ADMINISTRATOR OF EPA .
¦Aminoil (hereafter referred to collectively as "Aminoil")
brougnc^this: action in state court for review of a decision of
the/
-------
- 15
(})/<'I *-'7
ARGUMENT
I
THE DISTRICT COURT ERRED IN CONCLUDING
IT HAD JURISDICTION SINCE SECTION 5U9 OF THE
CLEAN WATER ACT VESTS EXCLUSIVE JURISDICTION
IN THE COURTS OF APPEALS TO REVIEW EPA'S
ACTIONS IN THIS CASE
/
Plaintiffs' complaint asserts that the district court
had jurisdiction over EPA's actions here under 28 U.S.C. 1331
(federal question), 28 U.S.C. 1361 (mandamus), and the Adminis-
trative Procedure Act, 5 U.S.C. 701-706. However, the courts
of appeals are granted exclusive jurisdiction to directly review
effluent limitations and permit decisions by EPA. That juris-
diction is exclusive, and ousts district court jurisdiction.
The district court erred, therefore, in concluding it had juris-
3/
diction.
A. The August 5 agreement is an effluent limitation
reviewable exclusively in the courts of appeals by virtue of
Section 509(b)(1)(E) of the Clean Water Act. -- Section 509(b)
U)(E), 33 U.S.C. 1369(b)(1)(E), provides for direct appellate
The fact that the case is now in this Court does not cure
this fatal defect of the decision below. In the first place,
the issue is the jurisdiction of the district court, not this
Court. In addition, jurisdiction under Section 509(b)(1) lies
only in "the Circuit Court of Appeals of the United States for
the Federal judicial district in which [petitioner] resides or
transacts such business * * Plaintiffs reside and trans-
act business (for purposes of this lawsuit) outside the juris-
diction of this Court.
00090
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- 16 -
review of any "effluent limitation or other limitation under
Section 1311, 1312, or 1316 * * Although the Clean Water
Act'does not define the term "other limitation," the term
"effluent limitation" is broadly defined in Section 502(11),
33 U.S.C. 1362(11), to mean "any restriction established by a
State or the Administrator on quantities, rates and concentrations
of chemical, physical, biological, and other constituents which
are discharged into navigable waters * * *" (emphasis added).
The case law make it clear that the action complained of here
constitutes establishment of an "effluent limitation or other
limitation" within the meaning of Section 509(b)(1)(E).
As plaintiff HRDC has remarked in another context,
"[rjecently, there has been a distinct trend in favor of a
somewhat expansive reading of 5509(b)(1)." Opposition by
Natural Resources Defense Council to Industry's Motion to
Dismiss in Natural Resources Defense Council v. EPA, 673 F.2d
y ¦
400 (D.C. Cir. 1982) (hereafter "NRDC Opposition"), at 4.
See, E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112 (1977);
Natural Resources Defense Council v. EPA,-656 F.2d 768 (1981);
4/ The court in NRDC v. EPA noted that the statutory disjunctive
phrase "effluent limitation or other limitation" is particu-
larly broad in scope, and that Section 509(b)(1) should be accorded
"a practical rather than a cramped construction." 673 F.2d at 404,
405.
00091
-------
- 17 -
VEPCO v. Costle, 566 F.2d 446 (4th Ci'r. 1977); but see, American
*—57
Iron & Steel Institute v. EPA, 543 F.2d 521 (3d Cir. 1976) ~
Paragraph 2 of the August 5 agreement prohibits any
point source discharge of wastewater during site preparation
activities, and is therefore a "restriction established by * * *
the Administrator on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents * * *"
as defined by Section 502(11), 33 U.S.C. 1362(11) (definition of
"effluent limitation"). This condition, applicable to a single
permit applicant, and on its face limiting a discharge of pollu-
tants, is even more clearly an effluent limitation or ocher
limitation than the rules courts have previously held reviewable
6/
under Section 509(b)(1)(E). In addition, the August 5 agreement
sets forth specific numerical effluent limitations which the
Applicant agrees not to challenge, and which will be incorporated
in its NPDES permit when the permit is issued. See also Paragraphs
4(f)) and 4(d). Like the Consolidated Permit Regulations found
5J However, American Iron & Steel Institute is readily distin-
~~ guishable trom this case. In that case the regulations at
issue were found to "neither prescribe specific number limitations
for any pollutant nor do they list the factors which must be con-
sidered in determining the control measures which individual point
sources must employ." 543 F.2d at 527. In contrast, here the
Agreement contains specific restrictions on discharges.
Jj/ Plaintiffs did contend that the Agreement is not "legally
"" binding," and consequently does not establish "effluent
limitations" because it is not enforceable by EPA. This is
plainly not true, as hereafter discussed.
00092
-------
- 18 -
reviewable in Natural Resources Defense Council v. EPA, supra,
673 F.2d at 400, these conditions "restrict who may take ad-
vantage of certain provisions or otherwise guide, the setting
of -numerical limits in [a] permit." j^d. at 404-405. They are
thus similarly encompassed by Section 509(b)(1)(E), 33 U.S.C.
1369(b)(1)(E).
Therefore, plaintiffs' challenge to the Agreement
constitutes an attempt to seek "(r]eview of the Administrator's
action * * * in approving or promulgating any effluent limi-
tation or other limitation * *
It is also clear from the cases that the jurisdiction
conferred in the courts of appeals by Section 33 U.S.C. 1369(b)
is exclusive. See, e.g., Natural Resources Defense Council v.
EPA, supra, 673 F.2d at 404 ("the statute * * * sets out the
7/ The formal issuance of the Agreement clearly constitutes
approval or promulgation of the effluent limitations
contained therein. "Promulgate" is defined as, inter alia, "to
announce officially." Black's Law Dictionary (Revised 4th ed.)
at 1380. The Agreement clearly fits this description. Further-
more, beciause the Agreement is designed, at least in part, to
assure compliance with the requirements of Sections 301 and 306
of the Act, 33 U.S.C. 1311, 1316, including the requirement of
Section 301(a) that no point source discharge of pollutants to
navigable waters occur except in compliance with the Act, the
effluent limitations in the Agreement are "under" Sections 301
and 306. See Natural Resources Defense Council v. EPA, supra.
673 F.2d at 405 n.15.
00093
-------
19 -
actions Co be reviewed in courts of appeals rather than district
17
courts" (emphasis added, footnote omitted)).
B. The August 5 agreement is an "action * * * in
issuing or denying [an WPDES permit! * * * which is exclusively
reviewable in the courts of appeals by virtue: of Section 509
(b)(1)(F) of the Clean Water Act. — The Agreement at issue in
this case is simply one step in the administrative process leading
9/
to final issuance or denial of an NPDES permit for the CRBRP.
There is no question that the courts of appeals will have exclusive
jurisdiction to review that permit when it is final under Section
509(b)(1)(F), 33 U.S.C. 1369 (b).(1) (F). Crown Simpson Pulp Co,
v. Costle, 445 U.S. 193, 195-197 (1980); United States Steel
Corp. v. Train, 556 F.2d 822, 837 (7th Cir. 1977); Sun Enterprises,
Ltd. v. Train. 532 F.2d 280 (2d Cir. 1976). The district courtsi
may not intrude upon earlier actions in the administrative proceed-
ings. In United States Steel Corp. v. Train. 556 F.2d 822 (9th
Cir. 1977), the permit applicant sought interlocutory review
6/ Therefore, plaintiffs' assertion of jurisdiction under 28 U.S.C.
1331, 1361 and 5 U.S.c. 701-706 must fail. Jurisdiction does
not lie under 28 U.S.C. 1331 or 5 U.S.C. 701-706, when jurisdiction
is otherwise precluded by other statutes. Califano v. Sanders, 430
U.S. 99, 106-107, 108 (1977). Likewise, the mandamus claim fails.
Sun Enterprises v. Train. 532 F.2d 280, 288 (2d Cir. 1976).
£/ The Agreement was developed pursuant to EPA's permit regu-
lations, includes conditions affecting the terms of the
permit, and came about solely due to the fact that CRBRP re-
quires a new source NPDES permit.
00094
-------
- 20 -
in a district court of the decisions of an EPA Administrative
Law Judge at an NPDES permit hearing. The district court dis-
missed, citing the statutory limitation of permit review to the
court of appeals, and the "general policy of; avoiding piecemeal
review." Iji., 556 F.2d at 832. The court of appeals affirmed,.
Id. at 837. Courts have ruled similarly in analogous cases
under 'the Clean Air Act. Lubrizol Corp. v. Train. 547 F.2d 310,
312 (6th Cir. 1976) (finding that district court review "would
present a grave risk of inconsistent results and encourage forum
shopping " and would lead to "additional delays imposed by a
W.
bifurcated system of judicial review * * * Id_. at 317-318.
See also, Anaconda Co. v. Ruckelshaus, 462 F>2d 1301 (10th Ciri.
1973) (finding that district court review would "intrude on the
court of appeals' function").
The order appealed from here amply illustrates the problem
of delays and confusion inherent in bifurcated review of agency
action. The district court ordered that site ^preparation activities
10/ Central Hudson Gas & Electric Corp. v. EPA. 587 F.2d 549,
557 (2d Cir. 1978), is not to the contrary. The court there
concluded that a district court could entertain a claim that EPa,
lacked any jurisdiction to issue an NPDES permit. Whatever the
merits of this view, it has no bearing here. EPA's jurisdiction
to issue an NPDES permit for CRBRP is not contested by any party.
The Agreement is an action in the course of issuing that permit.
This decision is also contrary to the present trend of broadly
interpreting 33 U.S.C. 1369(b) to further the objective of
avoiding bifurcated judicial review. Crown Simpson Pulp Co. v.
Costle. supra. 4^5 U.S. ^t 196-197.
CORRECTED PAGE
00095
-------
- 21 -
are enjoined until, inter alia, "a NPDES permit is issued by
EPA." Thus, the district court has retained supervisory authority
over this case throughout the course of the permit proceedings.
This will include determining when the permit is "issued" for
purposes of compliance with the order. Yet it,is the court of
appeals which has exclusive jurisdiction over reviews of any
challenges to EPA's permit decisions. Should such challenges
occur (a not unlikely circumstance), there is a distinct possibility
that two federal courts would assume overlapping authority over
EPA's activities -- a situation which poses the very dangers
which the Supreme Court has repeatedly sought to avoid and the
Clean Water Act precludes. See, e.g., Crowr. Simpson Pulp Co. v. ;
Costl'e, supra.
For these reasons, the district court did not have
11/
jurisdiction over this matter.
II
filE DISTRICT COURT-ABUSED ITS DISCRETION WHEN IT
ENJOINED SITE-PREPARATION WORK AT THE PROJECT
A. NEPA did not preclude EPA from authorizing the
limited' activities skt^forth ift_ghe Augusts agretemfent. — The
11/ Nor can the NEPA claim be heard separately by the district
court. ; Atlanta Gas Light Co. v. Southern Natural Gas Co..
38b F. Supp. 1039, 1050 (N.D. Ga. 1972), affirmed in part and
remanded in part on other grounds sub nom. Atlanta Gas Light Co.
v. Federal Power Commission, 476 F.2d 142 (5th Cir. 1973).
00096
-------
4
Finally, two ck>: plaxntifra' claims as to the United
States Environmental Protection Agency are_jLo£—p±per-for review
becajise-fio final agency action has been taken in those areas.
in this case. We will show that all of the plaintiffs lack
standing to sue as to Counts 1-11, and as to Counts 12-21, the
Kansas City Southern Railway Co. and the Farmers Unions lack
standing to sue.
a federal court's power to declare legal rights and to fashion
appropriate remedies in a given case is a demonstration by the
party invoking the court's authority that he has standing to
sue. This concept of standing as an absolute requirement for
federal judicial action encompasses within it a wide-ranging
set of legal and political values, the upshot'Of which may be
capsulized as follows: Article III of the Constitution expressly
confines the scope of permissible judicial authority to the
resolution of "cases" and "controversies." The Supreme Court
declared almost a century ago, and has reiterated with increasing
frequency since, the "constitutional power of federal courts
cannot be defined, and indeed has no substance, without reference
to the necessity 'to adjudge the legal rights of litigants in
' • I
actual controversies.'" Valley Forge College v. Americans United,
454 U.S. 464, 471 (1982), quoting from Liverpool Steamship Company
v. Commissioner of Emigration, 113 U.S. 33> 39 (1885). Standing,
in this constitutional sense, connotes an inquiry into whether
III. STANDING TO SUE.
We first address plaintiffs' lack of standing to sue
A. General Law As To Standing.
One necessary condition-precedent to the exercise of
00097
-------
- 5 -
the hopeful plaintiff has alleged such a personal stake in the
outcome of a particular controversy as to warrant his invocation
of federal-court jurisdiction and to justify exercise of.the
court's remedial powers on his behalf. Warth v. Seldin, 422
U.S. 490, 498-499 (1975). Such a requirement is politically —
and perhaps philosophically — girded by the idea that the exer-
cise of the judicial power ought properly to be restricted to
"those disputes which confine federal courts to a role consistent
with a system of separated powers and which are traditionally
thought to be capable of resolution through the judicial process."
Flast v. Cohen, 392 U.S. 83, 97 (1968).
Beyond its constitutional dimensions, however, the.
doctrine of standing has been clothed by the judiciary with a
set of prudential limitations derivative of Article Ill's
requirement of a real or threatened injury amenable of judicial
remedies, Valley Forge College, 3upra, at 474. The Supreme
Court has accordingly held that plaintiffs generally may not
base, their claims for relief on the legal rights or interests of
third parties, Warth v. Seldin, supra, at 499, and that plaintiffs
must, as a rule, set forth an interest to be vindicated that is
arguably within the "zone of interests" to be protected or
regulated by the particular statute or constitutional provision
upon which the plaintiff relies for relief, Data Processing
Service v. Camp, 397 U.S. 150 (1970). Moreover, even where a
plaintiff has alleged an otherwise redressable injury arguably
sufficient to satisfy the demands of Article III, federal courts.,
will nevertheless refrain from adjudicating controversies of
wide public significance where the plaintiff's injuries are
00098
-------
highly .generalised, ^rvasively shared by the public at large,
and thus most appropriately addressed in the representative
branches of our tripartite system, Valley Forge College, supra,
at 475.
These generalizations about standing have, in recent
years, been refined by the Supreme Court and others into a
reasonably straightforward framework for assessing the standing
of a particular plaintiff to litigate specific types of claims.
According to this framework, a plaintiff may be said to have
standing if he satisfies two specific requirements: constitu-
tionally, the plaintiff must demonstrate that the challenged
action — usually the action of a government official — has
or likely will cause him an injury, economic or otherwise,
that is fairly derivative of the defendants' alleged conduct,
and which is likely to be redressed by a decision in the plain-
tiff's favor, (i.e., injury in fact); and, the plaintiff must
show that his specific injury falls- arguably within the zone of
those interests that were meant to be protected or regulated
by the specific statute or constitutional provision upon which
the plaintiff relies for protection from the challenged actions
of tne defendant (i.e., "zone of interests").
The Eighth Circuit in Churchill Truck Lines, Inc. v.
United States, 533 F.2d 411, 416 (1976) summarized that in order
to have standing to sue, plaintiffs must satisfy two criteria:
First, they must allege that the challenged
action has caused them injury in fact,
economic or otherwise. Second, the interest
sought to be protected by the petitioner
must arguably be within the zone of interest
protected or regulated by the statute in
question.
00099
-------
4 H
ARGUMENT
I. STANDARD OF REVIEW
The scope of review in this case is set forth in
Section 307(d)(9) of the Act, 19/ which largely mirrors the
judicial review provisions of the Administrative Procedure
Act. It requires a reviewing Court to uphold EPA's actions
unless it finds that they were (1) arbitrary, capricious, an
abuse o^ discretion, or otherwise not in accordance with
law;- (2) contrary-to constitutional right, power, privilege,
or immunity; (3) in excess of statutory jurisdiction, authority,
or limitation, or short of statutory right; or (4) the subject
of procedural errors of central relevance to the actual
decisions involved. 20/
As this Court made clear in Lead Industries Ass~'n v.
EPA, 647 F.2d 1130, 1145 (D.C. Cir. 1980), cert, denied, 449
O.S. 1042, "[tjhese statutory provisions and a considerable
body of case law demonstrate that ... a reviewing court['s]
[role] is limited." The arbitrary or capricious standard
of review is "highly deferential," and presumes agency action
to be valid. Citizens to Preserve Overton Park v. Volpe, 401
19/ Section 307(d)(1) explicitly provides that the provisions
of Section 307(d) apply to "promulgation or revision of
any regulation pertaining to any fuel or fuel additive under
57545 of this title [Section 211]."
20/ The standard o£ review for procedural issues is discussed
further in connection with the procedural points raised by
petitioners. See part IV-A, infra.
00100
-------
-16-
U.S. 402/ 415 (1971); Ethyl Corp. v. EPA, supra, 541 F.2d at
34. Moreover, the arbitrary or capricious standard forbids
the court's substituting its judgment for that of the agency.
Id. at 34; Citizens to Preserve Overton Park v. Volpe, supra,
401 U.S. at 416. Thus, if the Court can discern a rational
basis for the agency's position, the decision must be affirmed.
Bowman Transportation, Inc. v. Arkansas-Best Freight System,
Inc., 419 U.S. 281, 290 (1974); United States v. Allegheny-
Ludlum Steel Corp., 406 U.S. 742, 749 (1972).
The rules at issue in this case were promulgated
under Sections 211(c) and 211(g) of the Clean Air Act.
Section 211(c) was before this Court in Ethyl, 21/ and its
breadth and flexibility led the Court to be particularly
deferential to the Agency's factual judgments. 22/
Considerable deference is also afforded to the Agency's
interpretation of the statute it administers, including questions
of statutory construction. Whirlpool Corp. v. Marshall, 445
t
U.S. 1, 11 (1980); Lead Industries Ass'n v. EPA, supra, 647
21/ Section 211(g) was added to the Act after the Ethyl
decision. As will be discussed in the next section of
this brief, it places no limitations on EPA's authority after
October 1, 1982.
22/ Congress amended Section 211(c) in 1977 to clarify and
reaffirm its precautionary purposes. See H.R. Rep. No.
95-294 (1st Sess. 1977) at 43-51; Leg. Hist, at 2510-18;
J.A. . As enacted in 1970, the provision authorized EPA to
control any fuel additive whose emission produces "will endanger
the public health or welfare." Pub. L. 91-604, 84 Stat. 1698-
1700. Section 211(c) as amended now authorizes control or
prohibition of additives "which may reasonably be anticipated
to endanger" health or welfare.
00101
-------
-17-
P.2d at 1130; Ethyl, supra, 541 P.2d at 12, n. 16. Deference
to EPA's interpretation is additionally warranted when, as
here, the Act and its amendments were enacted with the advice
and cooperation of EPA and its predecessor agencies. Lead
Industries Ass'n, v- EPA, supra, 647 F.2d at 1147; E.I, du
Pont de Nemours & Co. v. Train, 430 U.S. 112, 134-135 (1977).
tl. EPA HAS AMPLE AUTHORITY TO SET STANDARDS FOR SMALL
REFINERIES MORE STRINGENT THAN THE SLIDING-SCALE STANDARDS
JV. Introduction
Petitioners attack EPA's authority to set standards
for small refineries more stringent than the "gliding-scale"
standards Congress established to govern the 'period before
October 1, 1982.\23/ As explained below, the approach adopted
by EPA finds strongxsupport in the statute, legislative history,
and decisions of thisXpourt.
B. EPA's Approach In Setting Uniform Standards
Is Supported by the Statute and Legislative History
1. EPA's Discretion to Fashion Appropriate
Lead Phasedown Regulations is Broad
The lead phas^down regulations challenged in these
cases are industry-wide rules designed to reduce further the
23/ Petitioners, representing fourteen of approximately seventy-
four small refineries, challenge only one Aspect of the
industry-wide regulations: the specific requirements for small
refineries.
00102
-------
«j moved to dismiss Sierra Club',? Dfititiofj^ftei" review
frfl
because EPA had not yet taken finaL-erction on whether to
include strip mines in tJx®--PS'D regulations. This Court
then severed^STerra Club's petition for review and referred
EPA'j^flTotion to dismiss to the merits panel.
ARGUMENT
I. THIS COURT LACKS JURISDICTION UNDER ^
SECTION 307(b)(1) OF THE CLEAN AIR
ACT, 42 U.S.C. 7607(b)(1), BECAUSE
THERE IS NO FINAL AGENCY ACTION FOR
THIS COURT TO REVIEW
y
Section 307(b)(1) of the Clean Air Act, 42 U.S.C.
7607(b)(1) vests courts of appeals with exclusive jurisdiction
to review EPA's final actions. Harrison v. PPG Industries,
Inc., 446 U.S. 578 (1980). The Act does not define "final
action", but the phrase has a traditional meaning. The
Administrative Procedure Act ("APA") defines "agency action"
to include "the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof,
8/ Section 307(b)(1) of the Clean Air Act, 42 U.S.C. §7607
"" (b)(1), provides in pertinent part as follows:
A petition for review of action of the
Administrator in promulgating any national
primary or secondary ambient air quality
standard ... or any other nationally applic-
able regulations promulgated, or final action
taken, by the Administrator under this Act may
. be filed only in the United States Court of
Appeals for the District of Columbia ... Any
petition.for review under this subsection shall
be filed within sixty days from the date, notice
of such promulgation, approval, or action appears
in the Federal Register, except that if such
petition is based solely on grounds arising
after such sixtieth -isy, then any petition for
review under this subsection shall be filed
within sixty days after, such grounds arise.
(Emphasis added)
00103
-------
10 -
or failure to act. . 5 U.S.C. 551(13). Furthermore, a
"rule" is defined as the "the whole or a part of an agency
statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or
policy. 5 U.S.C. §551(4). And an "order" means "the whole
or a part of a final disposition, whether affirmative, nega-
tive, injunctive, declaratory in form, of an agency in a
matter other than a rule making but including licensing."
5 U.S.C. 551(6). (Emphasis added.)
It is well established that before a Court may
review agency action it must be final. FTC v. Standard Oil
Company of California, 449 U.S. 232 (1981). The Supreme
Court has interpreted the finality aspect of administrative
actions in a "pragmatic way." Abbott Laboratories v. Gardner,
38? U.S. 136, 1*19 (1967). To be final action, the action
must be the agency's last word on the matter. It must be a
definitive statement of the agency's position on the matter
under review. Id. at 151. Additionally, the challenged
agency action must have a concrete impact on the petitioner.
Ia_. at 152. Cf. FTC v. Standard Oil Company of California
(Court could not review basis for FTC's decision to initiate
00104
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- 11 -
enforcement proceedings against Standard Oil because the
9/
decision did not constitute final agency action.7
Applying the teachings of Abbott Laboratories and
its progeny to this case, it is evident that there is no
final agency action within the meaning of Section 307(b)(1)
for this Court to review. As discussed above, EPA has not
made a final decision of any kind concerning regulation of
fugitive emissions from strip mines. Nothing in either the
rulemaking proposal, 44 Fed. Reg. 51924 et seq. (1979), or
9/ See also, Air California v. United States Department of
Transportation, 654 F.Fd 616 (9th Cir. (a letter
from the FAA which was neither a definitive statement of the
agency's position nor a document with the status of law was
held not final and reviewable); Hooker Chemical Co. v.
EPA, 642 F.2d 48 (3rd Cir. 1981) (a notice citing a company
for a violation of Clean Air Act regulations, which was
later withdrawn, indicated the agency had not yet taken a
position with regard to an interpretation of the regulation
that could be deemed final for purposes of review; Wearley
v. FTC, 6l6 F.2d 662 (3rd Cir.), cert, denied, 449 U.S. 622
(19E0T ( no pre-enforcement jurisdiction to review the FTC's
actions since the agency had taken no final position on
petitioners' claim of privilege as to documents in custody
of the district court); and West Penn Power Company v. Train,
522 F.2d 302 (3rd. Cir. 197^5 (EPA's issuance of a notice
of violation under Clean Air Act was not final agency action
and not reviewable). But see National Automatic Laundry and
Cleaning Council v. Shultz, .443 F.2d 689 (D.C. Circuit 1971)
(letter from the Wage-Hour Administrator was reviewable; the
letter was an authoritative interpretation of the law which, if
correct, subjected certain owners of coin-operated laundries
to civil and criminal penalties under the Fair Labor Standards
Act, 29 U.S.C. §201 et seq as amended.
00105
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- 12 -
the final regulations promulgated on August 7, 1980, 45 Fetf.
52676 et seq. (1980), indicate that EPA has completed its
consideration of whether to list strip mines. To the contrary,
EPA has consistently stated that it is studying the question
of fugitive emissions from these sources. Addendum B. This
fact was again confirmed in an affidavit filed by Walter
10/
Barber. EPA's ongoing studies are, simply a first step toward
determining whether it should include fugitive emissions from
strip mines in calculating whether such sources meet the tonnage
requirements in Section 169(1). In sum EPA has done is announce
that it\s inquiry as to fugitive emissions from strip mines is
continuing. Accordingly, there is yet no final action for this
Court to review.
00106
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5
Notwithstanding the absence of final agency act
II. EVEN IF THIS COURT HAS JURISDICTION OVER
SIERRA CLUB'S PETITION, ITS CLAIM IS NOT
RIPE FOR REVIEW
Sierra Club nonetheless contends (Pet. Br. at 7-8) that this
Court should treat EPA's inaction on listing strip mines as
10/ Mr. Barber also authorized the March 2, 1981 response from
EPA denying Sierra Club's petition for reconsideration.
He has since returned to his position as Director of the
office of Air Quality, Planning and Standards. The affidavit
was submitted with EPA's MOTION TO DISMISS PETITION FOR
REVIEW IN NO 80-2218 filed February 8, 1982. It is reproduced
in Addendum "C".
00107
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11/
(y,e: equivalent of a decision to exclude then from PSD review.
from this premise Sierra Club urges the Court to review
substantively EPA's alleged "decision" not to regulate strip
mine.
11/ Sierra Club also complains (Pet. Br. at 6-7) that EPA
failed to offer any explanation for its failure to list
strip mines. As the discussion above amply demonstrates, supra; at
7-8 this is simply not the case. From the very start of the
rulemaking on the revised PSD rules, EPA indicated that it
was studying the question of whether to list strip mines.
Fed. Reg. at 51931, Col. 2. Although;EPA's explication of the
status of its study with regard to strip mines in the final
rule may have been of "less than ideal clarity," Bowman
Transp. Corp. v. Arkansas 'Best Freight System, 419 U.S. 28l,
265-286 (1954), the agency fully explained its position in its
response to Sierra Club's petition for reconsideration.
Hence, Sierra Club can hardly claim that there has been no
response to its comments. Sierra Club can be expected to
label the agency's response as a post-hoc rationalization
which this Court may disregard. This Court has made clear,
however, that where an "agency has voluntarily conducted post-
rulemaking proceedings.in an effort to cure alleged defects,
we are loathe to require it to repeat every step in the
administrative process merely because its initial action may
be partially flawed." Recreation Vehicle Industry Ass'n v.
EPA, 653 F.2d 562, 572 (D.C. Cir. 1981). :
Finally, the agency's obligation to respond to comments
during an ongoing rulemaking proceeding is substantially
different from its obligations at the end of an administrative
proceeding, at which time it is required to explain the basis
and purpose of its actions. All the cases cited by Sierra
Club on pages 6 and 7 of its brief fall into the latter
category. International Harvester Co. v. Ruckelshaus, 478 F.2d
615 (D.C. Cir. 1973) (final decision denying motor vehicle
manufacturers applications for one-year suspension of automobile
emission standards); Texas v. EPA, 499 F.2d 289 (5th Cir.
1974) (petition to review EPA's final disapproval of portions
of the State of Texas' implementation.plan); Matlovich v.
Secretary of the Air Force, 591 F.2d 852, (review of Air
Force's decision to involutarily discharge airman); Environmental'
Defense Fund v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971) '
(review of Secretary of DDT), the fact that EPA consideration
of fugitive emissions from strip mines is continuing thus ^
justifies a more limited response to Sierra Club's comments than '<£-
if the agency had reached a final decision to exclude such
sources from regulation.
00108
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In essence, Sierra Club seeks to obtain a preemptive
determination by this Court on the question of the treatment
of fugitive emission from strip mines under the agency's PSD
In essence, Sierra Club.seeks to obtain a preemptive
determination by this Court on the question of the treatment
of fugitive emissions from strip mines under the agency's PSD
rules. In this respect, Sierra Club's ploy is virtually
identical to the plaintiff's strategy in Citizens For a Better
Environment v. Costle, 617 f.2d 851 (D.C. Cir. 1980). There
plaintiff Citizens for A Better Environment (CBE) sought a
declaration that EPA was required by relevant provisions of
the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
§§6901 et seq. , as amended, to include standards in the
agency's proposed regulations for determining whether sewage
sludge should be regulated as a hazardous waste. This Court
affirmed the district court's denial of relief to CBE,. holding
the suit was premature. CBE v. Costle, supra, 617 F.2d at
853-85^. The Court also stated that, "Until the agency acts by
issuing final regulations, this Court should not determine
whether the agency must regulate sewage sludge under the
Act." I_d. at 854. Furthermore, in declining CBE's request
that the Court should issue instructions to the agency in
advance of the agency's final decision this Court noted that
"courts should be wary of injecting judicial pronouncements
into the administrative process before final action is taken."
Id. at 854.
00109
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- 15 -
CBE V. Costle. is dispositive here. Clearly EPA has
not formulated a final position on the question of regulating
strip mines under the PSD regulations. Accordingly, the Court
should decline Sierra Club's invitation to "instruct EPA on
the proper procedural and substantive requirements [of the
Act.]" Pet. Br. at 8.
As to Sierra Club's claim that EPA's inaction here
amounts to final action which is reviewable by the Court, its
reliance on Environmental Defense Fund v. Hardin t 428 F.2d
1093 (D.C. Cir. 1970), for this proposition is misplaced.
In EPF v. Hardin, petitioners filed formal petitions with
the Secretary of Agriculture pursuant to the Federal Insecti-
cide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§136—
et seq. as amended, requesting the issuance of notices cancelling
the uses of all pesticides containing DDT and temporarily
suspending the registration for all such products pending
completion of the cancellation proceedings. The Secretary
issued notices cancelling four uses of DDT, solicited comments
concerning remaining uses and took no action on .the request
for interim suspension. Petitioners then sought judicial
relief to compel the Secretary to comply with t'heir request.
In rejecting the Secretary's claim that there was no final
agency action to review since he had not yet acted on peti-
tioners' request, the Court held that the Secretary's delay
of interim action had precisely the same impact (the continued
use of DDT) on petitioners' rights as the outright denial of
their petition. It was on this basis that the Court concluded
that the Secretary could not preclude judicial review by
00110
-------
gating "his silent but effective refusal to suspend the
registration," 428 F.2d at 1100, in the form of inaction.
The Court therefore ordered the Secretary to make a prompt
response to petitioner's suspension request.
The instant case is easily distinguishable from EPF v.
Hardin. Here Sierra Club has only filed comments in the PSD
rulemaking proceeding expressing its belief that strip mines
should be subject to new source review under the PSD program- n
Unlike the petitioners in EPF v. Hardin,: Sierra Club has not
affirmatively petitioned EPA for interim or final relief; it
has only offered its views on what it thinks should be included
in EPA's PSD rules. The Court's statements in EPF v. Hardin
to the reviewability of agency inaction were limited to unactio.n
12/
on a request for interim relief. Nothing in EPF v. Hardin
sanctions the conversion of comments made during the course
of a rulemaking into a vehicle for compelling an agency to
issue a rule precisely in the form desired by a commenter.
Furthermore, EPA has not stood sphinx-like and
offered no explanation for why strip mines where not included
on the list of sources subject to new source review under the
PSD program, as was the case in EPF v. Hardin. Here the
agency clearly explained to Sierra Club that it lacks sufficient
12/ In fact, this Court letter analogized the situation in EPF
v. Hardin to a court's denial of-a temporary restraining
order, which is immediately reviewable by an appellate court.
EPF v. Ruckelshaus, 439 F.2d 584, 590 n. 8. Tiiie very purpose
of a request for preliminary relief is to forestall imminent
irreparable harm. Hence, the withholding of relief by means
of inaction has precisely the sane- effect as outright denial
of such relief. Obviously, the instant case is not at all
comparable, since Sierra Club has not sought interim relief
to forestall any threatened injury.
ooiu
-------
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^formation on which to make an informal decision and that it
yas in the process of gathering the needed information.
Finally, EPF v. Hardin, does not stand for the
proposition that a petitioner may obtain a pre-emptive judicial
determination of the substantive merits of a matter pending
before the agency simply because the agency has delayed its
action on the matter. The Court made this clear in EPF v.
Hardin, where Instead of determining for itself whether the
Secretary should suspend the registration of DDT-containing
pesticides, it remanded the matter to the agency for an
explanation of the reasons for granting or denying the interim
relief requested by petitioners. EPF v. Hardin, supra, 428
F.2d at 1100. Since EPA has already explained its position
with regard to regulation of strip mines, there is no basis
for granting Sierra Club any relief. In no event would it be
proper for this Court to rule on Sierra Club's assertion
that EPA is required to subject strip mines to PSD review. 13/
13/ Contrary to Sierra Club's claim (Pet. Br. at 6), this Court
did not hold in Alabama Power that EPA has no discretion
to exclude fugitive emissions from strip mines. On the contrary,
this Court stated that EPA has discretion whether to include
fugitive emissions in calculating whether a source qualifies
as a "major emitting facility." Alabama Power Co. v. Costle,
supra) 636 F.2d at 368-70. The Court also stated that if the
agency sought to include such emissions, it had to do so
by means of a rule. ]td. Nor does the snippet of legislative
history which Sierra Club cites support its position. (Pet.
Br. at 6). The language from the House Committee. Report on , . tj
which Sierra Club relies - H.R. No. 95-29^, 95th Cong., 1st /u'- l '"At'.
Ses3. 165 (1977) - refers to considering fugitive emissions
for purposes of determing whether such emissions would consume'V'/,
the allowable increment; it does not address the question of . ' y
whether the agency is compelled to consider these emissions for
purposes of determining whether the source is subject to.the PSD '
program at all. Finally, nothing in Alabama Pov.'sr Co. or
the legislative history of the Clean Air Act co;n pel's to
address all fugitive emission sources in one rulemaking proceeding.
EPA clearly has discretion to decide how it will go about
implementing its regulatory programs.
00112
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Only after EPA has made a final decision with regard to fugi-
tive emissions from strip aines may this Court entertain a
challenge to the substantive merits of the agency's decision.
Ilit. EVEN IF THIS COURT HAS JURISDICTION TO
ENTERTAIN SIERRA CLUB'S PETITION, THE
ONLY ISSUE PROPERLY BEFORE THIS COUfiT
IS WHETHER EPA HAS UNREASONABLY DECAYED
RULEMAKING WITH REGARD TO STRIP MlNES
Despite Sierra Club's belief that st/ip mines
should be subject to P^D review arid its apparent frustration
at the pace of EPA's decisionmaking on this issue, the only
question properly before thi^ Court, assuming it has any
jurisdiction at all, is whether\EPA has unreasonably delayed
its decision on the treatment of- fugitive emissions from
strip mines.
We have already disqussed ab^ve, supra at 7- 8,12
EPA's reasons for deferring action on including strip mines
among the classes of sources whose fugitive emissions will
be considered for purposes of calculating whether they met
the threshold tonnage requirements of Section 169(1> of the
Act, H2 U.S.C. §7479(1). The Court must.defer to EPA's
determination of the quantum of information necessary and
the time necessary in order for the agency to reach a well-
founded decision in a rulemaking proceeding. See Group
Against.Smog and Pollution Inc. v. EPA, 665 F.2d 128MD.G.
Cir. 1981); Antone v. Block, 661 F.2d 230, 234 (D.C. Cir.
1981); see also Citizens In Pr.?sc-rve Overton Park, Inc. v.
Volpe, ^01 U.S. U.S ^02, 116 (1971). The burden is on Sierra
00113
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-10-
C. Judicial Proceedings
On February 18, 1981, Interlake, Inc. filed^iff this
Ccurt a petition for review of the Admin is traftpr* s conditional
approval of the Kentucky SIP, No. 81-3082 *<^On February 20,
1981, Armco, Inc. filed a petition for.'review. No. 81-3089.
These two cases were consolidated by this Court on Hay 22,
1981. The Court's May 22 order also granted an extension of
time for the petitioners to file their separate briefs to
July 17 r 1981.
Armco filed t-tieir brief on July 16, 1981. Interlake,
however, moved/for an order dismissing their petition without
prejudice, sL motion which respondents did not oppose,. This
Court hag not acted on that motion, but it did grant respondents
an extension of time until September 1, 1981 to file their
bri^f.
STANDARD OF REVIEW \Pi)I; ^ ft
The Court's review of EPA's actions with regard to a
state implementation plan is governed by the "arbitrary and
capricious" standard. Northern Lung Association v. EPA, 572
F.2d 1143, 1149 (6th Cir. 1978). As the United States Court
of Appeals for the District of Columbia Circuit made clear in
Lead Industries Association, Inc. v. EPA, 14 ERC 1906 (D'.C.
8/ Although the D.C. Circuit's review of EPA's action in
Lead Industries, supra, was governed by section 307(d)(9)
of the Clean Air Act, 42 U.S.C. S7607(d)(9), the Court's
discussion of the standard of review is applicable here
because Section 307(d)(9) also establishes the "arbitrary and
capricious" standard for review of agency actions subject to
its provisions.
00114
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Cir. 1980), the "arbitrary and capricious" standard of review:
is "highly deferential," and presumes agency action to be
valid. 8/ Id. at 1916, citing Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 415 (1971), and Ethyl Corp. v.
EPA, 541 F.2d 1, 34 (D.C. Cir. 1976) (en banc), cert, denied,
426 U.S. 941 (1976).
Even though the Court must engage in a "substantial
inquiry" into the record, which is to be "searching and
careful," Citizens to Preserve Overton Park v. Volpe, supra,
401 U.S. at 415, 416, the Court may not substitute its judgment
for that of the agency. *01 U.S. at 416; Lead Industries
Ass'n. Inc. v. EPA, supra, 14 ERC at 1917. Rather, the Court's
review is limited to determining whether the agency's decision
was "based on a consideration of the relevant factors."
Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S.
at 416; Lead Industries Ass'n, Inc. v. EPA, supra, 14 ERC at
1916. If the court can discern a rational basis for the
agency's decision, the decision must be affirmed. Bowman
Transportation, Inc. v. Arkansas-Best Freight Sys., Inc., 419
U.S. 281, 290 (1974); United States v. Alleghenv-Ludlum Steel
Corp., 406 U.S. 742, 749 (1972).
Similarly, in addressing questions of statutory construction,
9/ Accord, E.I. Dupont de Nemours & Co. v. Train, 430 U.S.
112, 134^ (1977) (EPA's interpretation of Clean Water
Act afforded deference); Chrysler Corp. v. EPA, No. .78-2273
(D.C. Cir., June 19, 1980) (Slip op. at at 40-41) (Clean Air
Act); Environmental Defense Fund v. EPA, 598 F.2d 62, 80
(D.C. Cir. 1978) (Clean Water Act); Environmental Defense
Fund v. Costie, 578 F.2d 337, 348 (D.C. Cir. 1978) (Safe
"Drinking Water Act).
00115
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-12-
considerable deference is to be afforded the agency's interpre-
tation of the statute it administers. Train v. nrdc, 421 U.S.
60, 75 (1975). 9/ As the District of Columbia Circuit
recently explained in a case involving the Clean Air Act:
Where different interpretations of the statute are
plausible, so long as EPA's construction of the
statute is reasonable we may not substitute our own
interpretation for the agency's. Train v. NRDC,
supra, 421 U.S. at 75. "[T]he construction of a
statute by those charged with its execution should
be followed unless there are compelling indications
that it is wrong[.]" Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367, 381 (1967); accord, Beal v. Doe,
432 U.S. 438 (1977). Deference to the Administrator's
interpretation is particularly appropriate in construing
a statute that invests him with a considerable amount
of discretion. Unless it can be shown that the
Administrator's construction of the statute is plainly
unreasonable, we must uphold his interpretation.
Lead Industries Ass'n, Inc. v. EPA, supra, 14 ERC at 1918.
00116
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statute to bejiext-x-etfTewed by EPA in 1983. Section 111(b) (1) (B),
42 U.S.C.^7411(b)(l)(B) . p
B. The 1970 Clean Air Act and the First New Source
Performance Standard for Power giants. -
In 1970 Congress for the first time authorized the federal
government to set performance standards limiting emissions from
newly built or modified sources of air pollution. Section 111 of
the Clean Air Act, 42 U.S.C. §1857c-6 (1970). Congress directed
che Administrator to establish the appropriate emission limits
to apply throughout the operational life of the plant, but to
leave the manner of achieving those limits to the owners and
operators of the regulated industry. 1970 L.H;. 417 (S. Rep. No.
1/
91-1196). Congress nevertheless directed the Administrator to
consider technological and economic feasibility, but in the follow-
ing light: the technology should not be "purely theoretical or
experimental," 1970 L.H. 900 (H. Rep. No. 91-1146), but need not
be "in actual routine use somewhere." 1970 L.Hi 416 (S. Rep. No.
91-1196). The standards were to be set at the edge of achievability.
The sources to be so controlled were those the EPA Admin-
istrator determined emitted pollution contributing substantially
to the endangerment of the public health or welfare. Section
5/ "L.H." stands for legislative history. If the number preceding
~~ the letters is 1970, the document referred to is A Legislative
History of the Clean Air Act Amendments of 1970, 93d Cong., 2d Sess.,
Comm. Print No. 93-18 (1974). If the number preceding the letters
is 1977, the document referred to is A Legislative History of the
Clean Air' Act^Amendments of 1977, 95th Cong., 2d Sess., Comm. Print
No. 95-16 (1978). Both sets of documents were prepared by the
Congressional Research Service of the Library of Congress. The
number following the letters "L.H." is the page number.
00117
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111(b)(1)(A), 42 U.S.C. §1857c-6(b)(1)(A). The Administrator
decided large coal-fired generators fell within that category, 36
Fed. Reg. 5931 (March 31, 1971). Within a year he issued a new
source performance standard. 36 Fed. Reg. 24876, 24878-80 (Dec:.
23, 1971). The standard applied to those units capable of firing
6/
more than 250 million Btu per hour. 36 Fed. Reg. 24878, codified
at 40 C.F.R. §60.40 (1980). It limited sulfur dioxide (SO2)
emissions from coal-fired facilities to 1.2 pounds per million Btu
7/
heat input. It also limited nitrogen oxide emissions to 0.70
pound per million Btu input and particulate emissions to 0.10
8/
pound per million Btu. Id.
Appalachian Power Company et al. challenged the standard.
Essex Chemical Corporation v. Ruckelshaus, 158' U.S. App. D.C. 360,
486 F.2d 427 (1973). This Court upheld the rule as the product of
reasoned decision-making, fully recognizing that the technology
6/ British thermal unit (Btu) is a measure of thermal energy. A
boiler capable of burning 250 million Btu per hour can consume
approximately ten tons of coal per hour, or about one railroad car
of coal (70 tons) every seven hours. The more typical 500 megawatt
power plant can burn about 5000 million Btu per hour. At full
capacity it would consume 200 tons of coal per hour or one railroad
car every twenty minutes.
7/ Pounds pollutant per million Btu is a ratio of emissions to the
heat content of the fuel. (Different coals have different heat
content). At 1.2 pounds per million Btu, a boiler with a 250 million
Btu capacity would emit 300 pounds of sulfur dioxide per hour. The
consumption of a ton of coal, at 25 million Btus a ton, would emit 3q
pounds of sulfur dioxide to the atmosphere,
8/ These requirements were monitored by specified performance tests,
' 40 C.F.R. §60.45(g)(2)(1979). They were not expressed in terms 0
daily, monthly or annual compliance periods.
00118
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was still approaching rather Chan achieving the challenged 1.2
9/
ipounds sulfur dioxide per million Btu level. 15.8 U.S. App. D.C.
,a.t;373, 486 F.2d at 440. In succeeding years this standard success-
rfully forced industry to develop technology which would clean
sulfur dioxide emissions from power plants. 1977 L.H. 2556 (H.
Rep. No. 95-294); S. Rep. No. 94-717, 94th Cong., 2d Sess. 9 (1976).
C. The 1977 Amendments to the Clean Air Act.
1. Legislative History.
In 1977 Congress considered and ultimately adopted amend-
ments to the Clean Air Act. Pub. L. No. 95-95. These amendments
were mid-course adjustments to the ambitious clean air programs
launched in 1970. Among the matters judged in need of amendment'
was'the new source performance standard for coal-fired power plants.
Congress found itself dissatisfied with the effects of the standard
for reasons which fall loosely into two categories of concern.
First, Congress was concerned about the standard because
it discouraged the use of the local eastern coals. 1977 L.H. 2651,
2654 (H. Rep. No. 95-294). Eastern coals had traditionally dominated
10/
che eastern market, largely because of their proximity to the
9/ The Court remanded the record on one aspect of the rule. It
"* decided the Administrator's consideration of sludge and other:
adverse environmental effects of the 1.2 standard was insufficient.
On remand, EPA further examined the adverse environmental effects
of the 1.2 standard, but concluded the standard was reasonable
even in light of those effects. 40 Fed. Reg. 42045 (Sept. 10,
1975); 42 Fed. Reg. 61541 (Nov. 23, 1977).
10/ "Eastern" here includes primarily those states east of the
Mississippi River.
00119
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-lo-
ll/
market but also because they were high ranking in heating value;
and before the^ standards were adopted, purchasers selected fuels
on the basis of heating value, not sulfur content. The effect of
the 1971 standard was to encourage preference for low sulfur western
12/
coals. SO2 Background Doc. at 5-4, 5-5, J.A. 1942-1943. It
encouraged new power plants to burn low sulfur* western coals because
under the 1.2 pounds SO2 per million Btu standard, the low sulfur
western coals could be burned without pollution control equipment
!
and could still meet the standard; but the high sulfur eastern
coals could not. The burning of high sulfur coals required the
use of pollution control equipment. Since the equipment increased
capital and operating costs, the standard weighted the economics
against the high sulfur eastern coals.
Congress had not intended this result when it authorized
the Administrator in 1970 to set these standards. It had not
intended to give a competitive advantage to the coals from the
western states and it had not intended to discourage use of high
sulfur coals. Congress wanted the standard to be nondiscriminatory:
11/ Coals vary substantially in heating value. Eastern coals,
generally anthracite and bituminous, have a higher heat content
than the subbituminous and lignite coals of the west. SO2 Back-
ground Doc. 5-18, 5-19 J.A. 1956-1957.
12/ The nation's coals have a varying mix of chemical and physical
properties. The sulfur content in the nation's coal ranges :
from less than 0.4 to more than 5.0 percent by weight. Doc. IV-E-12
at Attachment 1, p.12 (Table 2); Attachment 2; Attachment 3; See also,
Babcock and Wilcox, STEAM-ITS GENERATION AND USE1 at 2-8 (196377"
Since about 95% of the sulfur content of the coal becomes sulfur
dioxide upon burning, those coals having more sulfur by weight
will emit more sulfur dioxide upon burning than coals containing
less sulfur. Most of the low sulfur coal is in the west. SO2
Background Doc. 4-1, 4-2, J.A. 1787-1788.
00120
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ic should not favor any one area of the country over another. 1977
L.H. 2651, 2654 (H. Rep. No. 95-294). In addition, apprehensive
about the nation's dependence on increasingly costly foreign oil,
Congress sought to free for use all of the nation's energy resources.
1977 L.H. 2659-2660 (H. Rep. No. 95-294).
Congress' second category of concerns stemmed from its view
that the standard was not promoting, to the fullest extent possible,
the development of pollution control tecnnology. 1977 L.H. 2654 (H.
Rep. No. 95-294). The 1971 standard, it felt, operated as a disin-
centive to new technology because to comply power plants could simply
burn untreated low sulfur coal. 1977 L.H. 2654 (H. Rep. No. 95-294).
Congress had not intended the standard to operate this way. For
both environmental and economic reasons, Congress expected the
new source performance standard to be set at a. level which would
promote the development of pollution control technology to the
13/
fullest extent possible. The benefits of this approach were
readily apparent.
A requirement for the maximum practicable emission
reduction would speed the development of innovative technologies
which were cheaper, more effective and less energy-demanding than
available technology. 1977 L.H. 2654, . 2653 J(H. Rep. No. 95-294).
13/ This concern also bears on the concern for the eastern coal market.
A requirement for scrubbing on all plants would serve the interests
of the eastern high sulfur coal producers because utilities, having to
scrub regardless of the sulfur content, of' coal, would not be likely to
favor the higher priced low sulfur coals over the lower priced eastern
high sulfur coals. For this reason, the eastern coal industry joined
che environmentalists in supporting a requirement for the universal
application of scrubbing. 1977 L.H. 1090 (Remarks of Senator
Metzenbaum); 1977 L.H. 1093 (Remarks of Senator Wallop).
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With better pollution control technology, more industries could
locate in a given area without causing violations of the national
ambient air quality standards. The result would be greater
opportunities for economic growth throughout the nation. 1977
L.H. 2651-52 (H. Rep. No. 95-294). In addition, in the long
term, the country would realize economic savings, for with better
pollution control technology on new plants, fewer facilities would
be required over time to retrofit pollution control equipment to
remedy pollution problems in their locale. 1977 L.H. 2652 (H.
Rep. No. 95-294). Furthermore, a standard promoting development
to its fullest would benefit the older plants, their area and
employees, for with better pollution control technology on large
new plants, smaller and older utilities which could not physically
or economically afford to retrofit could continue to operate by
using the available low sulfur coal. 1977 L.H. 2653 (H. Rep. No.
95-294).
To address both of these categories of concern, Congress
directed the Administrator to revise the power plant standard to
require: (1) a percentage reduction in uncontrolled emissions
from all coals, high or low sulfur; and (2) the use of emission
control technology to meet the limits specified in the new source
performance standard. 1977 L.H. 510 (Conf. Rep., H. Rep. No.
95-564). In calling for a percentage reduction, Congress did not
specify any amount or range of reduction but rather left the decision
to the Administrator with the following- instruction:
the Conferees agreed that the Administrator
may, in his discretion, set a range of
pollutant reduction that reflects varying
00122
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fuel characteristics; Any departure from the
uniform national percentage reduction require-
ment, however, must, be accompanied by a finding
that, such a departure does not undermine the
basic purposes of the House provision and other
purposes of the Act, such as maximizing the use
of locally available fuels.
1977 L.H. 510 (Conf. Rep., H. Rep. No. 95-564). Sources could no
longer comply by simply burning untreated low sulfur coal.
2. The Clean Air Act as Revised in 1977.
- 1 - ¦ — i. « - ' | ¦
The-new requirements for percentage reduction and use of
technology appeared in 'Section 111(a) of the Clean Air Act, as
amended in 1977, 42 U.S.C. §7411(a). Section 111(a)(1)(A)(ii)
incorporates the percentage reduction requirement by defining
"standard of performance," in the case of coal burning sources, to
require "the achievement of a percentage reduction in the emissions
from such category of sources from the emissions which would have
resulted from the use of fuels which are not subject to treatment
prior to combustion." Section 111(a) also makes explicit the
technology requirement by modifying the meaning of "standard of
performance" from that reflecting the "best system" of emission
reduction to that reflecting the "best technological system" of
emission reduction. With these changes Congress addressed its
primary concerns.
Congress also made another significant substantive change
to Section 111 which, in essence, affirms this Court's earlier
decision in Essex Chemical Corporation v. Ruckelshaus, 158 U.S. App.
D.C. 360, 486 F.2d 427 (1973). Congress expected, the Administrator,
in setting the standard, to consider not only air' pollution, tech-
nology, and cost, but also energy requirements, and the non-air
00123
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- 14 -
health and environmental effects of the standard. 1977 L.H. 2657
(H. Rep. No. 95-294). It therefore amended Section 111(a) to
require consideration of these multiple concerns:
a standard of performance shall reflect
the degree of emission limitation and
the percentage reduction achievable
through the application of the best
technological system of continuous
emission reduction which (taking into
consideration the.cost of achieving
such emission reduction, any nonair
quality health and environmental
impact and energy requirements) the
Administrator determines has been
adequately demonstrated.
Having given this new guidance, Congress directed the
Administrator to revise the new source performance standard for
coal burning sources within one year, Section 111(b)(6), and to
review and, if appropriate, revise the standard at least every
four years. Section 111(b)(1)(E), 42 U.S.C. §7411(b)(1)(B).
The new source performance standard, in the context ,of
i
the rest of the Clean Air Act, is one of five requirements that
might be applied to new plants. .It is in all instances the minimum
requirement. More stringent requirements might be imposed by EPA
or by state agencies in the following circumstances. First, more
stringent limits might-be required by the state implementation
plans, established under Section 110 of the Clean Air Act, 42 U.S.C.
§7410, to meet the national ambient air quality standards. Secondly,
in areas subject to the regulations to prevent significant deterio-
ration of air quality, power plants are required to install "best
available control technology," which must by statute be either
equal to or more stringent than the new source performance standard.
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3.5.
Section 169(1) and (3), 42 U.S.C. §7479(1) and (3). Third, in
areas designated as not attaining the national ambient air quality
standards under Section 107 of the Clean Air Act, new sources will
have to achieve the "lowest achievable emission rate" (LAER).
Section 173, 42 U.S.C. S7503. The LAER standard is likely to be more
stringent than the new source performance standard because the
consideration of cost is not as weighty in determining LAER as in
setting a new source performance standard. Finally, under Section
116 of the Act, 42 U.S.C. §7416, states may establish even more
stringent limitations if they wish. The new source performance
standard is the minimum control level for new plants in this system
of controls.
D. The Second New Source Performance
Standard for Power Plants.
In accordance with the 1977 Amendments the EPA set out to
U/
develop new standards. It published its proposal in September 1978.
43 Fed. Reg. 42154 (Sept. 19, 1978). The proposal suggested both
percentage reduction and ceiling emission limits to control emissions
of the three regulated pollutants: sulfur dioxide, particulates and
nitrogen oxides. For sulfur dioxide the percentage reduction
proposed was 85 percent, measured on a 24-hour basis, and the
emission limit was 1.2 pounds of sulfur dioxide per million Btu,
with three days exemption per month. For particulates the percentage
reduction proposed was 99 percent and the emission limit was 0.03
14/ EPA had begun reconsidering the standard earlier, in response
to a petition from Sierra Club and the Oljato and Red Mesa
Chapters of the Navaho tribe. 42 Fed. Reg. 5121 (Jan. 27, 1977).
00125
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~71^ . m *
VI. THE PART CERTIFICATION REGULATIONS
DO NOT VIOLATE THE FIFTH ¦ AMENDMENT
The vehicle manufacturers contend that If EPA's
statutory interpretation is correct, their Fifth Amendment
rights are violated by Section 207(b). -Specifically, MVT1A contends
that the prohibition against denial 6f warranty coverage on the
basis of the use of a certified replacement part would take the
vehicle manufacturers* property without just compensation.
MVMA Br. at 43-47- This argument is tptally spurious.
A. Section 207(b) Does Not t*Take" Vehicle Manufacturers'
Property Within the Meaning of the Fifth
Amendment
First, as explained above, EPA has provided a mechanism
bytwhich vehicle manufacturers can obtain compensation for
repairs rtecessitated by the failure or a certified part, as
well as a forum for challenging certification applications or
the continuing certification of any £>ai?t. Thus, there simply is
no taking of the vehicle manufacturers'¦property.
Second, the mere fact that; a. third party, the independent
aftermarket, benefits from the prohibition, of Section 207(b)
does not render it unconstitutional. E.g. Berman v. Parker 348
*116.81 Acres of Land,
U.S. 26, 33-34 (1954); United States v.
514 F.2d 627 (7th Cir. 1975)- Puerto Rico v. Eastern Sugar
Associates, 156 F.2d 316 (1st Cir. 1946). The Courts have
repeatedly held that Congress has broad discretion under the
Commerce Clause with regard to "the adjustment of rights for the
public good." Andrus v. Allard, 444 U.S. 5i* 65, (1979) -
(HJ126
-------
Consequently, economic Injury resulting from the effect of lawful
regulations for the public welfare does not fall within the
prohibition of the Fifth Amendment against taking property
without just compensation. See, e.g., Penn Central Transportation
Co. v. New York City, 438 U.S. 104, 124-25 (1978).
Clearly, public welfare considerations motivated the
requirement that warranty coverage not be denied because of
the use of a certified replacement part. Congress created the
part certification program to maintain competition in the
automotive industry by preventing vehicle manufacturers from
in any way tying warranty coverage to use of their own replacement i
parts. Congress found that such competition benefits the
public at large by ensuring that there will be more products
to choose from and by reducing prices. Sen. Rep. No. 95-127
(1st Sess. 1977) 80-81, Legis. Hist, at 1454-1456, J.A. 260-262.
Futhermore, Congress Intended that the performance
warranty provide the consumer who fails a short test with a
prompt, nonburdensome means of obtaining a waranty repair. Id.
at 82, Legis. Hist, at 1456, J.A. 262. This prevents further
deterioration of air quality from malfunctioning emission control
systems. Id. at 81, Legis. Hist, at 1455, J.A. 261.
Therefore, Section 207(b) creates no "taking."
B.' A Tucker Act Remedy is Available to Provide
Just Compensation for any "Taking" Caused
by Section 207(b ) '
Even if Section 207(b) does cause a taking of the
vehicle manufacturers' property wlchout. just compensation,
0012 7
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-73-
the existence of a Tucker Act remedy would prevent them from
enjoining implementation of Section 207(b).
The Tucker Act, 28 U.S.C. §1491, provides, in pertinent
part:
The Court of Claims shall have Jurisdiction
to render Judgment upon any claim against the
United States founded either upon the Constitution,
or any Act of Congress, or any regulation of an
executive department, or upon any express or
implied contract with the United States, or for
liquidated or unliquidated damages in cases not
sounding in tort. ...
The claim that the operation of Section 207(b) of the Clean
Air Act would divest vehicle manufacturers of their property
in violation of the Fifth Amendment falls squarely Within the
language of this provision as a "claim against the United
States founded . . . upon the Constitution. ..." See, e.g.,
Regional Rail Reorganization Act Cases, 419 U.S. 102, 126
(1974). If the Tucker Act would ensure payment of a claim in
the event Section 207(b) were ultimately determined :to involve
a Fifth Amendment taking, the statute would not be unconsti-
tutional, and hence no basis would exist for injunctive or
declaratory relief. See, e.g., Larson v. Domestic &; Foreign
Commerce Corp., 337 U.S. 682, 697 n.18 (1949). 83/
83/ In Larson, the Supreme Court observed:
When the action against which specific relief is
sought is a taking or holding of the plaintiff's
property, the availability of a suit for compensation
against the sovereign will defeat a contention that
the action is unconstitutional as a violation of the
Fifth Amendment.
337 U.S. at 697 n.18
00128
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-74-
The Supreme Court has repeatedly held that the
crucial question In determining the applicability of the Tucker
Act is "not whether the [challenged statute] expresses an affir-
mative showing of congressional intent to permit recourse of
Tucker Act remedy," but rather whether Congress has "withdrawn
the Tucker Act grant of Jurisdiction to the Court of Claims to
hear a suit Involving the [challenged statute] 'founded . . .
upon the Constitution."' Regional Rail Reorganization Act
Cases, supra, 419 U.S. at 126. It is presumed that the Tucker
Act applies, in the absence of a contrary indication from.a
statute's language, scheme or legislative history. Id.
Accord, Duke Power Co. v. Carolina Environmental Study Group,
Inc., 438 U.S. 59, 94 n.39 (1978); Neeley v. United States,
546 F.2d 1059, 1064 (3d Cir. 1976).
The vehicle manufacturers have not asserted that Congress
intended to withdraw the Tucker Act remedy with respect
to claims for uncompensated takings made under the Clean Air
Act, nor does the Act, .its scheme or legislative history
evidence such as intention. 84/ Accordingly, this Court should
find that the Tucker Act remedy has not been withdrawn.
Therefore, the requirement that vehicle manufacturers
honor all warranty claims involving use of certified parts dees
not violate the Fifth Amendment., Furthermore, even if a Fifth
84/ The mere fact that EPA has provided a reimbursement
mechanism for the vehicle manufacturers does not support a
conclusion that the Tucker Act remedy has been withdrawn.
The reimbursement mechanism provided by EPA is for compensation
between private entities. Thus, it does net in any way limit
the vehicle manufacturers' Tucker Act remedy against the
government for just compensation. Pennsylvania v. ICC, 535
F.2d 91, 97-93 & n.13 (D.C. Cir. 1976), certT~aenleaT~429 U.S. 834.
00129
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-75-
Amendment violation exists, the existence of a Tucker Act remedy
prevents the vehicle manufacturers from enjoining implementation
of Section 207(b).
CONCLUSION
For the reaons stated above, the petitions for review
should be dismissed.
Respectfully submitted,
CAROL DINKINS
Assistant Attorney General
JOSE R. ALLEN
DAVID E. DEARING
Attorneys, Department of Justice
Washington, D.C. 20530
SAMUEL I. GUTTER
JAMES P. CLARK
Attorneys, Environmental
Protection Agency
Washington, D.C. 20460
OP COUNSEL:
ROBERT M. PERRY .
General Counsel
WILLIAM P. PEDERSEN
Acting Associate General Counsel
GERALD K. GLEASON
Assistant General Counsel
ROBERT A. WEISSMAN
ALPHONSE D. MANNATO
Attorneys
Environmental Protection Agency
Washington,•D.C. 20*160
DOJ-1982-09
00130
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STATEMENT OF THE ISSUE
Whether EPA abused its discretion or acted.: arbitrarily and
capriciously, or otherwise not in accordance withdraw, when it
approved, either conditionally or unconditionally the following
revisions to the Illinois State Implementation Plan:
for Issuance of Permi^^" to New or Modified Air Pollution Sources
Affecting Nonattainment Areas"; and
Board (PC&3 . which governs emissions from sources of fugitive
particulate matter.
STATEMENT OF THE CASE
In 1970 Congress amended the Clean Air Act, 42 U.S.C. §§7401
et seq~ ("the Act"), to establish a combined state and federal
program to control air pollution. Under Section 109 of the Act,
42 U.S.C. §7409, the federal government is responsible for establish
ing two sets of nationwide air quality standards -- primary standard
designed to protect the public health, and secondary standards,
designed to protect the public welfare.
Primary responsibility for achieving these standards was
given to the states. The Act required each state to submit to the
Administrator for approval a state implementation plan (SIP) for
"implementation, maintenance, and enforcement" of the air quality
standards for every portion of the state. Section 110(a)(1),
42 U.S.C. §7410(a)(l). Each SIP had to include.emission limitations
for stationary pollution sources, schedules for compliance, and
1) The Illinois Environmental Protection Agency (IEPA) "Rules
2) Rule 2p-3(f), as revised, of the Illinois Pollution Control
A. Statutory Framework
00131
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-3-
provisions for such additional methods of pollution control as are
necessary. The Act further provided that the Administrator had to
approve the SIP if it met the criteria sec out in Sections 110(a)
(2) (A) - (K) , 42 U.S.C. §§7410(a) (2) (A)-(H) .
On the other hand, if the Administrator found the plan
inadequate, to meet these requirements, or if the state declined
to submit a plan, the Administrator was required to promulgate
a federal plan for the state pursuant to Section 110(c), 42
U.S.C. 87410(c).
By 1976 it became apparent that many areas of the country
had failed to attain the primary (health-related) ambient
standards by the statutory deadline of 1975. In Congress' view,
this failure to attain the primary standards represented a
serious public health problem. H.R. Rep. No. 95-294, 95tn Cong.,
1st Sess. at 208-210 (1977). In order to ameliorate this
public health problem while allowing for future growth, Congress
enacted the Clean Air Act Amendments of 1977, Pub. L. 95-95,
91 Stat. 685 et sea.., which, inter alia, added Part D to Tide
I of the Act, 42 U.S.C. §§7501-7508. Part D is applicable only
to designated "nonattainment areas," i.e., areas in which the
national ambient air quality standards have not been attained. 1/
Under Part D, states with designated nonattainment areas
are required to submit revised SIPs which demonstrate that
17 Such "nonattainment areas" have been designated by EPA
under the procedures outlined in section 107(d) of the
Act, 42 U.S.C. 57407 (d)'.
00132
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-4-
the prinary ambient air quality standards will be attained by December
31, 1982. 2/ These plans must meet the new requirements of Section
172(b) of the Act, 42 U.S.C. §7502(b). These requirements
include, inter alia, adoption of the revision by the state
after reasonable notice and public hearing; implementation of
all reasonably available control measures as expeditiously as
practicable; annual incremental reductions in emissions
("reasonable further progress" towards attainment); certification
of adequate legal authority and resources to carry out the
revision; and a permit program for construction of new or
modified major stationary sources. Sections 172(b)(1), (2),
(3), (7),. (10), and (6), 42 U.S.C. §§7502 (b) (1), (2), (3), (7),
(10), (6). 3/ The permit, program must provide that permits to
construct may be issued, only if the owner or operator of a
proposed new or modified major source obtains sufficient
27 Congress also provided that states could obtain a
further extension to December 31, 1987, for'
attainment of the carbon monoxide and photochemical
oxidant (ozone) standards, if they were able to
demonstrate that they could not attain the national
standards for these pollutants by December 31, 1982.
Section 172(a), 42 U.S.C. §7502(a).
3/ Congress required any state that received an extension
of the attainment deadline for carbon monoxide or ozone
beyond December 31, 1982 to include an automotive inspec-
tion and maintenance (I/II) program in its revised SIP.
Section 172(b)(11)(B) , 42 U.S.C. §7502 (b)(11)(B). In
addition, the revised SIP must include a .program which
requires an analysis of alternative sites, sizes,
production processes and environmental control techniques
prior to issuance of a permit to construct or modify
a major source of pollutants, Section 172(b)(11) (A),
42 U.S.C. §7502(b)(11)(A), and must identify other programs
necessary to attain the primary ambient standards by
December 31, 1987. Section 172(b)(11)(C), 42 U.S.C.
57502(b)Cll)
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-5-
reductions in the region to offset the increased emissions from
,that source, or if the increased emissions will not exceed an
allowance for growth developed by the state pursuant to Section
172(b)(5). Section 173(1), 42 U.S.C. §7503(1). In addition,
the owner or operator must comply with the lowest achievable
emission rate (as defined in Section 171(3)) and must certify
that all the other sources owned or operated (or controlled)
by him in the state are in compliance with the SIP. Sections
173(2), (3), 42 U.S.C. §7503(2), (3). Finally, no permit may
be issued unless the state is carrying out the applicable imple-
mentation plan for the nonattainment area in which the proposed
source is to be located. Section 173(4), 42 U.S.C. §7503(4).
Revised plans complying with the foregoing requirements
were to be submitted to EPA by January 1, 1979, Section 129(c)
of Pub. L. 95-95, as amended by Section 14(b)(4) of Pub. L.
95-190 (note under text of 42 U.S.C. §7502), and were to be
approved by EPA by July 1, 1979, if they met the. requirements
of the Act.
In order to ensure that new sources of pollutants would not
exacerbate existing ambient air quality violations in nonattainment
areas, Congress declared a moratorium on the construction of new
major sources, or the' modification of existing major sources.,
unless, as of July 1, 1979, a state had an approved Part D plan.
Section 110 (a) (2) (I), 42 U.S.C. §7410(a)(2)(I). Because many
states, including Illinois, did not have approved Part D plans
by the July 1, 1979 deadline, and because no state had directly
incorporated the Section 110(a) (2) (I) requirement into its
00134
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-6-
SIP, EPA promulgated an interpretive rule prohibiting the
construction of new major sources, or the modification of
existing major sources, in nonattainment areas lacking approved
Part D plans, where such sources would cause or contribute to
concentrations of the pollutant for which a national ambient air
quality standard,was being violated. 44 Fed. Reg. 38471 (July 2,
1979). 4/
In implementing the 1977 Amendements, EPA developed certain
policies and guidelines. For Part D SIP revisions, those
policies are outlined in EPA's General Preamble for Proposed
Rulemaking on Approval of State Implementation Plan Revisions
for Nonattainment Areas, 44 Fed. Reg. 20372 (April 4, 1979), and
its supplements. 5/ This includes EPA's "conditional approval"
policy. See 44 Fed. Reg. 38583 (July 2, 1979) and 44 Fed.
Reg. .67182 (November 23, 1979). Under this policy, EPA will
approve, in whole or in part, Part D plans which are in substan-
tial compliance with Part D requirements but which have relative-
ly minor deficiencies, as long as the state agrees to correct
those deficiencies expeditiously,. The.approval is given on
condition the corrections are timely made. If the state makes
the corrections, the plan becomes fully approved. But if the
jstate fails to submit the corrections: on schedule, or if EPA
47 This promulgation also had. the;effect of inserting the
requirements of Section 173(4) into each SIP. See 40
CFR 52.24(b); 44 Fed. Reg. 38473 (July 2, 1979)".
5/ See 44 Fed. Reg. 38583 (July 2, 1979); 44 Fed. Reg.
3U371 (August 28, 1979); 44 Fed. Reg. 53761 (Septem-
ber 17, 1979); 44 Fed. Reg. 67182 (November 23, 1979).
00135
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¦J.
determines that the corrections are inadequate, the conditional
approval is withdrawn, the Part D plan is disapproved, and the
growth restrictions of Section 110(a)(2)(1) apply.
B. Factual Background
On Inarch 3, 197ft and October 5, 1978, the Administrate,
acting pursuant to Section 107 of the Act, 42 U.S.C. ' §740^d),
designated certain areas in the State of Illinois as nojrfattain-
ment for total suspended particulates (TSP), sulphur dioxide
(SO2). carbon monoxide (CO), ozone (03). and nitrogen dioxide
(NO2) • A3 Fed. Reg. Eh$62 and 43 Fed. Reg. 459^-3.
On April 3, 1979, r^ie State of lllinois/submitted a draft
SIP to EPA to satisfy the requirements of P/rt D of the Act.
EPA published a notice of prop6vsed rulemaking on these draft:
SIP revisions on July 2, 1979. 44 Fed ./Reg. 3858,7; CBE App. at 1.
In this notice, EPA identified thos^/portions of ..the SIP which
it believed did not comply with ther r&quirenents of the Clean
Air Act. On August 29, 1979, 13/linois submitted to EPA addition-
al material for inclusion in ;the SIP and clarified some of the
provisions in those portiorys of the SIP which had been previously
submitted to EPA. Certified Index Documents 489-507. EPA
later published a correction notice on the SIP 6n September
20, 1979. 44 Fed./Reg. 54500.
EPA received many public comments on the proposed SIP
revisions and on EPa's proposed rulemaking. Certified Index:
Documents^442-488. In addition, Illinois submitted numerous
comments and revisions to its original submittal. Certified
Ip-tJex Documents 489-560. After reviewing the public comments
00136
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Abbott Laboratories v. Gardner. 387 U.S. 136 (1967).
New York Stock Exchange v. Bloom. 562 P.2d 736
(D.C. Cir. 1977), cert, denied, 435 U.S. 942 (1978).
Section 7002(a) of RCRA, 42 U.S.C. §6,972(a).
3. Whether the Acting Regional Administrator properly
concluded that Delta Specialty, Inc. had met the requirements
for Interim status.
Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402 (1971). "
Sun Enterprises Ltd. v. Train, 532 P.2d 280 (2d Cir.
1976).
Section 7006(a)(1) of RCRA, 42 U.S.C.¦56976(a)(1).
, J -v
STATEMENT OF THE CASE ij/J/L r ^
TA. Federal Statutory and Regulatory Framework
Addressing Itself to what has sometimes been identi-
fied as this nation's most pressing environmental problem,
Subtitle C of the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act of 1976., as amended,
42 U.S.C. §§6921-6933, requires the Environmental Protection
Agency to promulgate regulations establishing a comprehensive
federal management system for hazardous waste. 1/ Section
3001 of Subtitle C, 42 U.S.C. §6921, directs EPA to identify
and list those solid wastes which are subject to regulation
1/ RCRA was most recently amended in the Solid Waste Disposal
Act Amendments of 1980, P.L. 96-482 (October 21, 1980).
00137
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as hazardous wastes. Sections 3002 and 3003, 42 U.S.C. §§6922
and 6923, require EPA to establish standards for generators and
transporters of hazardous waste which, among other things,
ensure the use of a manifest system which will track the move-
ment of:the waste from the point of generation to the point
of disposal and the delivery of the waste to properly permitted
treatment, storage, and disposal facilities.
To ensure that these treatment, storage, and disposal
facilities are designed, constructed, and operated in a manner
which protects human health ana the environment, Section 30C4,
42 U.S.C. §6924, directs EPA to promulgate technical, adminis-
trative, monitoring, and financial standards for them. These
standards are to be used by EPA to issue permits required of
owners and operators, of treatment, storage, and disposal
facilities by Section 3005, 42 U.S.C. §6925. For those states
interested in administering the RCRA program Instead of EPA,
Section 3006, 42 U.S.C. §6926, requires the Agency to issue
guidelines under which states may seek authorization to
carry out the program. 2/ Finally, under Section 3010, 42
2!/ A state hazardous waste program operates in lieu of that
portion of the federal program for which the state is
authorized. Because EPA currently retains authority under
RCRA for the permitting of hazardous waste disposal facilities
in Arkansas, Delta's hazardous waste management facility is
subject to federal law and regulations. However, Delta's
facility also is subject to applicable Arkansas law and
regulations. Section 3009 of RCRA, 42 U.S.C. §6929.
00138
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U.S.C. §6930, all persons engaging in activities subject to
control under Sections 300 2 through 3004 of RCRA must notify
EPA or states having authorized RCRA hazardous waste programs
of that fact.
The heart of the RCRA hazardous waste progran is the
requirement in Section 3005 that facilities which treat, store
or dispose of hazardous waste obtain a permit from EPA (or a
state authorized by EPA to conduct a hazardous waste program).
Such permits are to be issued by EPA only upon a determination
that the facility is in compliance with the Section 300 4
standards (extensive technical and administrative requirements,
codified in 10 C.F.R. Part 264) and the Section 3005 standards
(primarily permit application requirements, codified in 40
C.F.R. Part 122). See Section 3005(c), 42 U.S.C. §6925(c)
and 40 C.F.R. Part 122. Section 3005(a) provides that after
the effective date of the regulations, the treatment, storage
or disposal of hazardous waste without a permit is prohibited.
Section 7004(b) of RCRA, 42 U.S.C. §6974(b), 3/
provides that before the Administrator may issue a permit to
anyone for a hazardous waste management facility, he must publish
notice of his intention to do so in local newspapers, broadcast
3/ Section 7004(b) was added by the Solid Waste Disposal Act
Amendments of 1980, P.L. 96-482 (October 21, 1980).
00139
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his intention over local radio stations, and send a notice
of his intention to specified local government units and
state agencies. Thereafter, the Administrator must provide
at least a forty-five day comment period and the opportunity
for an informal public hearing. EPA's issuance or denial of
a permit is directly reviewable in the courts of appeals.
Section 7006(b), 42 U.S.C. §6976(b).
Recognizing that EPA would not be able to issue
permits to all hazardous waste management facilities before
the Subtitle C program became effective (November 19, 1980),
Congress provided in Section 3005(e), 42 U.S.C. §6925(e),
that certain facilities would be treated as having been
issued a permit until final administrative action was taken
on their permit application. This statutorily conferred,
temporary authorization to operate without a permit — commonly
referred to as "interim status" — is conditioned on a facility's
meeting the following three requirements:
1. The facility must have been in 'existence on
November 19, 1980. 4/
4/ When RCRA was originally enacted, Section 3005(e) provided
that a facility had to be in existence as of "the date of
enactment of this Act " — i.e. October 21, 1976. Amendments
to RCRA have changed this date to November 19, 1980. See
Section 10 of the Solid Waste Disposal Act Amiendments of
1980, P.L. 96-482 (October 21, 1980).
00140
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2. The facility must have "complied with the
requirements of Section 3010(a) [42 U.S.C. §6920(a)]" of
•RCRA (notification of hazardous waste activity).
3. The facility must have filed an application
for a permit which conforms with EPA regulations.
Unlike a permit, "interim status" is not issued
or granted by EPA. Any facility which meets the above
three statutory requirements is to be treated as having
been issued a permit until EPA makes final administrative
disposition of its permit application. The only exception
is where it can be shown that final administrative disposition
of the application has not been made because the application
failed to contain necessary information. Section 3005(e),
42 U.S.C. 56925(e).
EPA has adopted several regulations to implement
the requirements of RCRA. The main body of the EPA regulations
was published on May 19, 1980, (See 45 Fed. Reg. 33066, et
seq. )^and became effective on November 19, 1980 . 5/ The
hazardous waste regulations are codified in 40 C.F.R. Parts
5/ Under Section 3010(b), 42 U.S.C. §6930(b), the RCRA hazardous
~~ wasjfce regulations take effect six months after they are
promulgated.
00141
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26l through 265 and Parts 122 through 124. These regulations
have been continuously supplemented and amended. 6/
In its May 19, 1980, regulations and in amendments
to those regulations published on November 19. 1980, and
January 9, 1981, EPA has included provisions which provide
the Agency's interpretation of the statutory requirements
for interim status. See 40 C.P.R. §§122.3, 122.22-122.24.
Under these regulations, a facility is considered to be a
"facility in existence" on November 19, 1980, within the
meaning of Section 3005(e), 42 U.S.C. 56925(e)-, if it meets
the definition of "existing hazardous waste management facility"
(hereinafter referred to as "existing facility") found at 40
C.F.R. §122.3. U That definition is as follows:
Existing . . . facility . . . means a
facility which was in operation or for which
construction commenced on or before November
19, 1980. A facility has commenced construc-
tion if:
6/ The most important amendments occurred on January 12, 1981,
when EPA promulgated permitting regulations for storage
and treatment facilities (46 Fed. Reg. 2802); on January 23,
1981, when EPA promulgated permitting regulations for inciner-
ators (46 Fed. Reg. 7666); and July 26, 1982, when EPA
promulgated permitting regulations for land disposal facilities
(47 Fed. Reg. 32274).
U Congress specifically endorsed this definition in the Conference
Report to the Solid Waste Disposal Act Amendments of 1980. See
H.R. Rep. No. 96-1444, 96th Cong., 2d Sess. 34 (1980).
00i42
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- 9 -
(a) The owner op operator has obtained
the Federal, State and local approvals
or permits necessary to begin physical
construction; and either
(b)(1) A continuous on-site, physical
construction program has begun; or
(2) The owner or operator has entered
into contractual obligations — which
cannot be cancelled or modified without
substantial loss—for physical construc-
tion of the facility to be completed
within a reasonable time.
These regulations also set out the requirements governing the
permit application which must be filed as a prerequisite to
interim status. An existing facility must submit the first part
(Part A) of its permit application to the Regional Administrator
within six months after its waste is identified as hazardous by
EPA. 8/ The Part A application must contain certain minimal
descriptive information and must be signed by the owner of the
facility. See 40 C.F.R. §§122.4, 122.22-122.24. Facilities
which are not "existing facilities" within the meaning of the
above definition, which fail to submit an appropriate permit
application, or which fall to comply with the notification
requirements of Section 3010(a) are ineligible for interim status.
8/ The Administrator may, by a compliance order issued under
Section 3008 of tfCRA, extend the date by which the owner
and operator of an existing facility must submit Part A
of their permit application. 40 C.F.R. §122.22(a)(3).
00143
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- 10 -
A facility which qualifies for interim status can
continue to operate (or continue to construct and then operate)
without having a RCRA permit until such time as EPA acts on
the facility's permit application. 9/ Because interim status
facilities do not have RCRA permits during this period, they
are not subject to federal permit terms and conditions.
They are, however, subject to federal regulations (interim
status standards in 40 C.F.R. Part 265) as well as all
applicable state laws, regulations and permits. See Section
3009, 42 U.S.C. §6929. Section 3005(e) of RCRA contemplates
that Interim status facilities will eventually be issued (or
denied) permits, but whether an existing facility qualified
for interim status or not is irrelevant to the ultimate
Issuance or denial of a RCRA permit.
9/ EPA regulations at 40 C.F.R. Parts 122 and 124 set
forth the procedures for processing permit applications
for facilities. For existing facilities, the permitting
process under Section 3005(c) starts with EPA's request for
the second part of the permit application (Part B). EPA may
request the Part B permit application from the owner or
operator of an existing facility at any time after the regula-
tions applicable to that facility take effect. The facility
owner or operator has six months from the date of EPA's
request to submit all of the detailed technical information
required by the Part B application. EPA reviews the application
and prepares a draft permit. After notice and an opportunity
for an Informal hearing, EPA reviews all of the comments on
the draft permit and issues or denies a final permit.
00144
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- 25 -
'l»t -*
II. EVEN IP THIS COURT HAS SUBJECT MATTER JURISDICTION,
THE CASE" SHOULD BE DISMISSED FOR LACK OF RIPENESS
It Is well established that Judicial review of agency
action may only be obtained where the agency action is both
"ripe" for Judicial determination and final within the meaning
>of Section 10 of the Administrative Procedure Act, 5 U.S.C.
§704. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-156
(1967); FTC v. Standard Oil Company of California. 449 U.S.
232 (1980). The rationale underlying the doctrines of finality
and ripeness, for Judicial determination is
. . .to prevent the courts, through avoidance
of premature adjudication, from entangling
themselves in abstract disagreements over
administrative policies, and also to protect
the agencies from Judicial interference until
an administrative decision has been formalized
and Its effect felt in a concrete way by the
challenging parties. Abbott Laboratories v.
Gardner, supra, 387 U.S. at 148-149.
Although It is possible to identify several factors which are
relevant in deciding whether administrative'action is final
and ripe for Judicial determination, the overriding considera-
tions are (1) the fitness of the issues for Judicial decision
and (2) the hardship to the parties of withholding court
consideration. Abbott Laboratories v. Gardner, supra, 387
U.S. at 149. Consistent with this framework of analysis,
the Supreme Court and others have held that Informal advisory
opinions given by agency officials do not rise to the level
of controversies warranting Judicial intervention.
00145
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- 26 -
International Longshoremen's Union v. Boyd, 347 U.S. 222
(1954); Helco Products Co. v. McNutt, 137 F.2.d 681,'682-84
(D.C. Cir. 19^3); Sea-Land Service, Inc. v. Federal Maritime
Commission, 402 F.2d 631 (D.C. Clr. 1968).
The most recent analysis of the doctrine of ripeness
as applied to an Informal agency advisory opinion similar to
that in this case is contained in the D.C. Circuit's "decision in
New York Stock Exchange v. Bloom, 562 P.2d 736 (D.C. Cir. 1977),
cert, denied, 435 U.S. 942 (1978) ("Bloom"). In that case the
court found that two "informal rulings" of the Comptroller of
the Currency stating that a particular bank's stock purchasing
services would not violate the Glass-Steagall Act were not
ripe for judicial review. Although the Comptroller did state
"what would appear to be relatively final positions," he expressly
reserved the right that his opinion might change and his positions
"would in no way be incompatible with a future finding, based
on evidence of AIS's [the automatic investment service's]
actual operations, that it generates hazards sufficient to
create a violation of the Act." 562 F.2d at 741. The court
found that Judicial review of appellant's claim would be aided
by further factual development. The hardship to the parties
in Bloom of withholding Judicial review was not great because
appellants "could bring a private right of action directly
against any.national bank" which offered the stock purchase
services. 562 F.2d at 742.
00146
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- 27 -
The facta in this case are very similar to those in
Bloom. The informal opinion letter, like the Comptroller's
informal rulings, is not an irrevocable Agency decision.
Although the Acting Regional Administrator's opinion letter
of June 8, 1981, did not expressly state that she reserved the
right to change her opinion, the language of the le;tter clearly
leaves open the possibility that the opinion would change based on
new information. 22/ Furthermore, the opinion was reconsidered
(as in Bloom) based on new Information (an Attorney General's
opinion). 23/ Finally, even the reconsideration letter makes
it clear that if EPA received additional information (e.g., a
new Attorney General's opinion), it would reconsider the issue
again. 24/
With respect to the second aspect of ripeness, there
would be no great hardship to the parties in this case if this
Court were to dismiss the petition. Petitioners, like the
petitioners' in Bloom, "are not facing the dilemma of obeying
22/ The letter says, for example, that "Delta appears to
have met the requirements of interim status . ."
(emphasis added).
23/ As in Bloom, the Agency received written submissions
from proponents on both sides of the issue during
its reconsideration, but held no hearing.
2A/ The letter says "we gave deference to the Attorney General
with regard to the narrow issue he addressed. However,
his opinion dealt with only one aspect of a.complex relation-
ship . . ." J.A. 240.
00147
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- 28 -
a questionable ruling or accepting the consequences of violating
it." 562 P.2d at 740 quoting 404 P.Supp. at 1095. 25f They
¦concede that Delta has not proceeded with construction of
its facility. Pet. Br. at 50. The petitioners have suffered
no injury. Even if Delta should proceed to construct the
facility, it could not operate without a State permit (J.A. 27-33)
and whether the facility Delta might build woul'd be any less
secure than one built under an EPA permit is only speculation.
In any event, as in Bloom, petitioners in this
case have another remedy. If Delta has not qualified for
interim status and it proceeds to construct, it would be
in violation of Section 3005(a) of RCRA, 42 U.S.C. §6925(a),
and EPA regulations which require a permit or interim status
for the construction or operation of a land disposal facility
after November 19, 1980. Whether Delta qualifies for interim
status can be resolved directly in the district court in a
citizen suit against the facility. Section 7002(a) of RCRA, !
42 U.S.C. §6972(a). Indeed, such an action would seem more
likely to satisfy petitioners' concerns because it would
require no .Agency action to implement the Court's decision.
25/ There would also be no hardship to Delta if this
petition were dismissed. Delta has no quarrel with
the Acting Regional Administrator's opinion.
00148
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- 29 -
Given the lack of finality of the Regional
Administrator's opinion, the lack of a definitive State opinion
on an issue of State law, and the lack of hardship to the
petitioners of withholding.Judicial review, this Court
should find that the^Regional Administrator's opinion letter
is not ripe for review. 26/
26/ To the extent that petitioners•or intervehor argues that
the informal advisory opinion in this case is final and
ripe because it is comparable to an Agency determination of
the applicability of a new source performance standard ("NSPS")
under the Clean Air Act (see 42 U.S.C. §§74ll(a)(2) and (b)(6))
or a determination of the need for a prevention of significant
deterioration ("PSD") permit under the Clean Air Act (see
42 U.S.C. §§7475 and 7479), that argument is flawed. The advisory
opinion under RCRA at issue in this case is not comparable
to the'PSD and N5P5 applicability determinations with respect
to finality and ripeness for at least two reasons. First, EPA
issues formal determinations in both of the Clean Air Act
applicability situations. See, e.g., 40 C.F.R. §60.5
("Determination of construction or modification" with respect
to standards of performance of new stationary sources).
Although some-of the issues concerning whether Delta was
"in existence" may be like those involved in an NSPS or PSD
applicability determination, the opinion in this case remains
subject to reconsideration and thus is not a final determination
that is ripe for review. Second, under Section 307(b)(1) of
the Clean Air Act, 42 U.S.C. 57607(b)(1), final actions such
as formal NSPS or PSD applicability determinations may be
challenged only in the courts of appeals and may not be
raised in an enforcement action such as a citizen suit under
Section 304(a)(1), 42 U.S.C. §7604(a)(l). Under RCRA, whether
a facility has qualified for interim status can be the subject
of a citizen suit (if the facility is being constructed or
operated) even after EPA has given an informal advisory opinion
on the subject (unless this Court finds that such advisory opinions,
when final and ripe, are reviewable exclusively in the courts of
appeals because they are "actionCs] in issuing [a] permit").
00149
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- 3 -
5. Whether Che district court was correct in holding
that it did not have Jurisdiction under Section 7002 of the
Resource Conservation and Recovery Act to review the manner in which
the Environmental Protection Agency (EPA) was implementing regulations
which the court had ordered to be promulgated by a certain date, */
STATEMENT OF THE CASE Q/flZ a£-' 2-Z
Three cases are consolidated in this appeal.
Environmental Defense fund, Inc. v. Gary M. Dietrich, et al..
No. 81-2295, is an appeal of a ruling by the District Court
for the District of Columbia. That ruling was that the
district court had no jurisdiction under the citizen suit
provision of the Resource Conservation and Recovery Act ("RCRA"),
Section 7002, 42 U.S.C. 6972, to require the Administrator
of the Environmental Protection Agency (EPA) to call up and
process permits for existing surface storage impoundments
and incinerators. Environmental Defense fund, Inc. v. Anne M.
Gorsuch, No. 81-2025, and Environmental Defense fund, Inc. v.
Anne M. Gorsuch, No. 81-2214, are petitions for review of
statements in two federal Register notices issued by the
EPA concerning agency procedures for processing these permits.
A. Statutory Framework
The Resource Conservation and Recovery Act of
1976, Pub. L. 94-580, 90 Stat. 2807, as amended in 1980,
Pub. L. 96-482, 94 Stat. 2334, 42 U.S.C. 6901 et seq., requires
the Environmental Protection Agency to establish a regulatory
*/ These cases have not previously been before this Court. A separate
ruling of the district court in EPF v. Dietrich, No. 81-2295 has
been appealed to this Court sub nora Citizens for a Better Environment
v. Gorsuch and consolidated cases., Nos. 82-1035~et al.
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- 4
program that provides for "cradle-to-grave management" of
hazardous wastes.l/ H. R. Rep. No. 94-191, 94th Cong.,
1st Sess. (1976). The statute required the Administrator to
establish standards applicable to owners and operators of
all new and existing facilities for the treatment, storage
or disposal of hazardous waste within eighteen months after
enactment of the 1976 Act. Section 3004, 42 U.S.C. 6924. 2/
Such regulations are required to take effect six months
after promulgation. Section 3010(b), 42 U.S.C. 6930. In
1980, Congress amended the Act but left the original deadlines
for promulgation of the regulations intact, although it was
aware that those regulations had not been issued. Section 3004,
Pub. L. 96-482, Section 9. The Congress did add a new requirement
directing the Administrator to establish separate standards
for new and existing facilities where appropriate in these
performance standards. In so doing, Congress recognized
that there were practical and technical limitations in
modifying or retrofitting existing facilities. Section 3004,
H.R. Rep. No. 96-1444, 96th Cong., 2d Sess., p.p. 33-34 (1980).
1/ The program includes a manifest system that is designed
to track hazardous waste from its point of generation,
through its transportation, to its delivery at facilities that
treat, store or dispose of the waste.
2/ The text of Section 3004 is reproduced in the Joint Appendix
at 1.
00151
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- 5 -
Each such hazardous waste facility was also required
to apply for. and secure an operating permit from the Administrator.
Section 3005, 42 U.S.C. 6925. 3/ An applicant seeking a permit
under Section 3005 must comply with the requirements of Section
3005 and Section 3004.
The statute fixes no date by which the Administrator
is required to act on permit applications. The statute merely
states that "[u]pon a determination by the Administrator * * *
of compliance by a facility for which a permit is applied for
under this section with the requirements of this section and
section 3004 [6924 U.S.C.] of this title, the Administrator* * *
shall issue a permit for such facilities." Section 3005(c).
Once EPA issues regulations under Section 3005 requiring all
facilities to obtain permits, all treatment, storage and disposal
of hazardous waste is prohibited as of the effective date of
such Section 3005 regulations except in accordance with a permit.
. Recognizing that the permit processing procedure would
be an enormous administrative task, Congress provided in the
1976 Act that disposal facilities in existence on October 21,
1976, the date of passage of the Act, could be treated as having
a permit until their permit applications are acted upon. Section
3005(e),. 42 U.S.C. 6925. 4/ When the Act was amended in 1980,
3/ Sect Lon. 3005 is reproduced in full in the Joint Appendix
at 2.
4/ Facilities that have qualified for this authorization to
"" operate are said to have "interim status."
00 i 52
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- 6 -
Congress extended this interim status opportunity to facilities in
existence as of November 19, 1980. Section 3:005(e), Pub. L.
96-482, Section 10. Interim status is conditioned upon the require-
ments that the owner or operator has filed an application for a permit
and has notified the Administrator under Section 3010(a) of the
handling of certain types of hazardous wastes, _Id. 1/
The permitting program under Section 3005 is not
the only mechanism under RCRA for assuring that hazardous
wastes are properly treated, stored or disposed. The standards:
promulgated under Section 3004 are directly enforceable
against facilities operating without a permits 6/ In addition,
under Section 7003, 42 U.S.C. .6973, the Administrator may
bring suit to enjoin waste management activities that may
present an imminent and substantial endangerraent to health or
the environment. This emergency provision is available before
or after EPA issues regulations under Section 3004 and Section
3005. The Administrator is not required to prove actual
harm to win relief in such actions. United States v. Vertac
5/ Such notice must be in compliance with the requirements of
Section 3010(a), 42 U.S.C. 6930; that section is reproduced
In full in the Joint Appendix at 3.
6/ Once a permit is issued, however, only the terms of the
permit rather than the Section 3004 standards themselves
are enforceable against the facility owner or operator. For
a further discussion of the relationship between the Section
3004 standards and permits issued under Section 3005, see 45
Fed. Reg. 33158-59 (May 19, 1980).
00153
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Chemical Corporation, 489 F. Supp. 870 (E.D. Ark. L980).
Finally Section 7002, 42 U.S.C. b972, authorizes "any person* *
[to]* * * commence a civil action on his own behalf (1) against
any person* * * who is alleged to be in violation of any permit,
standard, regulation, condition, requirement, or order which
has become effective pursuant to this chapter." Such actions
are also placed within the jurisdiction of the federal district
courts.
B. Statement of Facts
The Administrator did not meet the eighteen-month
deadline for promulgation of the Section 3004 performance
standards or other standards required under RCRA. On
September 13, 1978, the Environmental Defense Fund (EDF)
filed an action, EDF v. Gary Dietrich, Civil Action No. 78—1775
in the District Court for the District of Columbia, pursuant
to Section 7002, 42 U.S.C. 6972, seeking
to require the Administrator of the
Environmental Protection Agency to perform
his non-discretionary duty to promulgate
regulations implementing the Resource
Conservation and Recovery Act of 1976 . . .
(Complaint, p. 1). Dietrich was consolidated with similar
suits by other plaintiffs sub nom. State of Illinoiis v.
Gorsuch, Civil No. 78-1689. On January 4, 1979, the
district court entered an order requiring the Administrator
to promulgate the various regulations seriatim. Subsequently,
the court granted several extensions of the schedule in
00154
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-3-
statutory Background
Cite? ^ 2*
On December 17, 1974, the Safe Drinking Water Act, LI
U.S.C. §300f et seq., was enacted to assure that water supply
systems serving the public would meet minimum standards :'nr
the protection of public health. 1/ To achieve this res>:".t,
the Act authorizes the Administrator of the Environmental
Protection Agency (EPA) to establish primary drinking water
regulations applicable to all public water systems. 2/
T7 The Act itself contains no Congressional findings or
statements of purpose other than the opening comment, that it
; is "to assure that the public is provided with safe drinking
water, and for other purposes." Pub. L. No. 93-523 §1, 88
Stat. 1660 (December 16, 1974). The Report of the House
Committee on Interstate and Foreign Commerce, however,
documents Congressional concern over the deterioration of the
quality of America's water supply. See H.R. 93-1185, 92nd
Cong., 2nd Sess. (1974); 1974 U.S. Code Cong. & Adm. News.,
I pp. 6454 ¦¦¦-'et ¦ seq. (hereinafter cited as Legis. Hist.).
2/ In its central regulatory scheme the Act requires promulga-
tion of interim and revised primary drinking water .regulations
to protect public health to the extent feasible. Section
1412(a), (b), 42 U.S.C. §300g-l(a), (b). It also requires
the establishment of secondary regulations to protect public
welfare. :Section 1401(2), 42 U.S.C. §300f(2). Primary drink-
ing water regulations are federally enforceable; however,
states may be delegated the primary enforcement responsibility
by the Administrator. Section 1413, 42 U.S.C. §300g-2.
00 3 55
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An issue that was given special attention in the
Congressional hearings on the Act was the growing use of
underiground injection of fluids as a method of waste
disposal.^/ Part C of the Act, Sections 1421-1424, 42 U.S.C.
§30Oh-3, outlines procedures for the implementation of
underground injection control. (U1C) programs in the
states.^/
Section 1421(d) (1) of the Act, 42 U.S.C. §300h(d) (1) ,
defines "underground injection" as "The subsurface emplacement
of fluids by well injection." The Act provides that under-
ground injection endangers water sources,
if such injection may result in the presence in
underground water which supplies or can reasonably be
expected to supply any public water system of any
contaminant, and if the presence of such contaminant may
result in such systems not complying with any national
primary drinking water regulation or may otherwise
adversely affect the health of persons.
Section 1421(d)(2), 42 U.S.C. §300h (d)(2).
3/SeeLegis. Hist, at 6481-6482, supra, n.l.
4/ Section 1422(a), 42 U.S.C. §300h-l(a), requires EPA to
publish a list of states for which UIC programs may be,
necessary. An initial list of 22 states was published on
September 25, 1978. 43 Fed. Reg. 43420. Maryland petitioned
the agency to be included in this initial group. 44 Fed. Reg.
21707 (April 11, 1979) . All states are now included on this
list. 45 Fed. Reg. 17632 (March 19, 1980).
00156
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-b-
In order to protect important underground drinking w«* ter
supplies from contamination by well-injection before a U" C
program goes into effect for a state, the SDWA provides
procedure for interim regulation of underground injectiri.
Under Section 1424 (a)(1), 42 U.S.C.A. §300h-3(a), any person
may petition EPA to designate an area as one in which nc new
injection wells may be operated without an EPA permit/ issued
after notice and an opportunity for agency hearing. Violations
of this subsection by well operators are punishable by civil
penalties of up to $5,000 per day, and if such violations are
willful, operators may be fined up to $10,000 per day. Section
1424 (c), 42 U.S.C. §300h-3(c).
The Administrator may only make the designation, however,
"If he finds that the area has one aquifer which is the sole or
principal drinking water source for the area and which, if
contaminated, would create a significant hazard to public
health." Section 1424 (a)? 42 U.S.C. §300h-3 (a) (1) . The Act
does not define the terms "aquifer", "sole or principal
drinking water source", or "significant hazard to public
health", and the legislative history provides little,
guidance as to their meaning.
5/ See Legis. Hist, at 6454, 6486-6489, supra, n.l.
00157
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-6-
The statutory provision relied upon in this instance,
Section 1424(e), 42 IJ.S.C. §300h-3(e), similarly authorizes a
sole source designation:
If the Administrator determines, on his own
init iative or upon petition, that an area has an
aquifer which is the sole or principal drinking
water source for the area and which, if contaminated,
would create a significant hazard to public health,
he shall publish notice of that determination in
the Federal Register. After the publication of any
such notice, no commitment for federal financial
assistance (through a grant, contract, loan guaran-
tee, or otherwise) may be entered into for any
project which the Administrator determines may
contaminate such aquifer through a recharge zone so
as to create a significant hazard to public health,
but a commitment for Federal financial assistance
nay, if authorized under another provision of law,
be entered into to plan or design the project to
assure that it will not so contaminate the aquifer.
Section 1424(e) is unlike Section 1424(a), though, in that it
is concerned with review of "any project" for which a commitment
of "federal financial assistance" may be entered into. Also,
a Section 1424(e) determination can be made at any time, unlike
the determination in Section 1424(a). Additionally, no
penalties are prescribed for violations once a designation is
made under Section 1424(e). 6/
6/ Section 1424(e) originated as a House amendment to the bill
already passed by the Senate. It evolved from concern over
the ^effect of a proposed development upon the Edwards Aquifer,
whidh is the sole water supply for San Antonio, Texas. 120
Cong. Rec... 36394 (Nov. 19, 1974). That aquifer had been the
subject of litigation under the National Environmental Policy.
Act, 42 U.S.C. §4321 £t seq., in Sierra Club y. Lynn, 502 F.2d
43' (5th Cir. 1974), cert, denied 421 U.S. 9U"4 (19^5), reh.
denied 423 U.S. 884 (1975).
Following enactment of the SD'JA.EPA issued both its
determination on the Edwards Aquifer and a net of Interim
Project Review Guidelines. 40,Fed. Reg. 58344 and 58292
(Dec. 15, 1975). Using the Edwards Aquifer as a guide, the
agency later published proposed national regulations at 42
Fed. Reg. 51620 (September 29, 1977) and final Edwards
regulations (42 Fed. Reg,. 51574) on the sane day. The Edwards
Aquifer Project Review Guidelines contain final definition?; of
(Footnote continued.)
00158
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-7-
EPA has proposed a set of regulations under See ion 1424(e),
but final regulations on sole or principal source at; lifer
designations have not yet been promulgated. ]_!
Factual History
On September 12, 1975, the Tenmile Creek Conservation
Corami£"fc£e (TMCCC) petitioned the Administrator of KiA, pursuant
to SectionM424(a) of the Act, to designate a parti.- l.-ir
region in Mon5j;onery County, Maryland, as an area in which no
new underground iftg^ction well could be operated. App. 18. A
second petition request"***^, a similar designation, by the
Clarksburg Community As so c i at
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-5
(milligrams per liter) or 100 parts per billion (ppb). This will
reduce the human health risks from continual exposure to high
levels of these compounds as well as other organic chemicals
concurrently produced during chlorination of drinking water.
B. Statutory Framework. ^ P 7
This Court has already discussed the basic provisions
of the 'Safe Drinking Water Act, 42 U.S.C. §§300f et seq., JA 1,
in EPF v. Costle, supra, 188 U.S. App. D.C. at 97-98, 100-101,
578 F.2d at 339-340, 342-344. The Act's purpose "is to assure
that water supply systems serving the public meet minimum
national standards for protection of public health." 2/ The
Act authorizes EPA to establish such minimum national standards
through three types of regulations: "interim primary," "revised
primary,"" and "secondary." 3/ Section 1412, 33 U.S.C. §300g-l, JA 4.
2/ If-1?- Rep- No. 93-1185, 93d Cong., 2d Sess. I (1974) (herein-
after,. "House: Report"), JA 38. The Senate passed a version of
the Safe Drinking Water Act, S. 433, on June 22r 1973, (119
Cong;. Recv 11716-721 (daily ed- June 221973)). This bill
wets accompanied by Sen. Rep. No. 93-231, 9-3d Cong;., 1st Sess.
(1973).» The House passed a version: of the Act, H-R. 13002,
accompanied by the cited House Report, on November 19, 1974.
(120 Cong. Rec. 10787-823, (daily ed. Nov. 19, 1974)). The
Senate agreed to the House version, with minor amendments, on
November 26, 1974. (120 Cong. Rec. 20220-244, (daily ed.
November 26, 1974)). On December 3, 1974, the House agreed to
these .Senate modifications (120 Cong. Rec. 11170-181, (daily
ed. December 3, 1974). Since the House bill was essentially
adopted by the Senate, the House Report accompanying H.R. 13002
has been viewed as the primary source of legislative history
underlying the Act.
2/ The secondary drinking water regulations must establish
limitations on substances which affect the aesthetic accepta-
bility.of drinking water. Section 1401(2), 42 U.S.C. §300f(2),
JA 1. 'Unlike the interim and revised primary regulations, secondary
regulations are intended for guidance and are not enforceable
by EPA against public water systems. House Report at 16 and
25. EPA promulgated National Secondary Drinking Water Regulations
on July 19, 1979. 40 C.F.R. Part 143, 44 Fed. Reg. 42196.
00160
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-6-
Amendments to the "interim primary" regulations are at issue
in this suit.
Interim and revised primary regulations apply to public
t
water systems 4/ and control contaminants which "may have an'
adverse effect on health." Section 1401(1)(B), 42 U.S.C. 300f(l)
(B), JA 1. A primary regulation specifies either a maximum contar
level (MCL) for a contaminant or, if it is not feasible to monitor
the level of such a contaminant, a treatment technique which will
lead to the reduction of the contaminant in drinking water.
Section 1401(1)(C), JA 1. See House Report at 11, JA 39. The
amended interim regulation at issue here establishes an MCL of
0.10 mg/1 for TTHMs. Interim regulations are to "protect
health to the extent feasible using technology, treatment
techniques, and other means, which the Administrator determines
are generally available (talcing costs into consideration) on
the date of enactment" of the SDWA (December 16r 1974-) - Section
1412(a)(2), 42 U.S.C. 300g-l(a)(2), JA 4. The SDWA provide®
that interim regulations "may be amended from time to time."
Section 1412(a)(1), JA 4.
C. Rulemaking Proceedings.
EPA's original proposal of National Interim Primary
Drinking Water Regulations (NIPDWR) included an MCL for organic
4/ The Act defines "public water system" to mean "a system for
the provision to the public of piped water for human consump-
tion, if such system has at least fifteen service connections or
regularly serves at least twenty-five individuals." Section
1401(4), 42 U.S.C. 300f(4), JA 1.
00161
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8 -
arguments it now raises before this Court. Doc. No. 43. CPA
filed a brief in opposition. Doc. Mo. 44. On August 9, 1982,
the Administrator issued a written opinion affirming in all
respects the decision of the Administrative Law Judge, including
the assessment of a civil penalty in the amount of $21,000.
Doc. No. 54 [hereinafter "Final Decision"].
On August 30, 1982, Yaffe filed this petition for
review pursuant to section 16(a)(3) of the TSCA, 15 U.S.C.
1. THIS COURT MUST UPHOLD THE ADMINISTRATOR'S DECISION UNLESS
IT IS JOCND TO BE UNSUPPORTED BY SUBSTANTIAL EVIDENCE.
assessing a civil penalty against Yaffe is governed by the
"substantial evidence" standard of the Administrative Procedure-
Act.-.; 5 U.S.-C,: S 706(2)(E) (1976). Yaffe apparently concedes
that this is- the applicable standard of review. See Opening
Brief for Petitioner [hereinafter cited as "Pet. Br."] at 34,
38.
Under this standard, a reviewing court must uphold ageric
action unless it is found to be "unsupported by substantial eviden
5 U.5.C, § 706(2){E) (1976). "Substantial evidence" is "more
than a mere, scintilla"; it means "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see
Gulf Oil Corp. v. EPA, 548 F.2d 1228, 1230 (5th Cir. _l?77).i
Environmental Defense Fund, Inc. v. EPA, 489 F.2d 1247., 1251
$ 2615(a)(3) (1976)
This Court's review of the Administrator's order
00162
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- 9 -
{p.C. Cir. 1973). The substantiality of the evidence must he.
veighed in light, of the administrative record as a whole,
jpnlversal- Camera Corp. v. NLRB. 340 U.S. 474, 488 (1951).
Adherence to the "substantial evidence" test "frees
$e reviewing courts of the time-consuming and difficult task
of weighing the evidence, it gives proper respect to the exper-
tise of the administrative tribunal and it helps promote the
uniform application of the statute." Consolb v. Federal Mari-
time Commission, 383 U.S. 607, 620 (1966). Particularly "where
questions involve a special expertise of an agency, such as in
detailed scientific proceedings, the agency deserves special
deference from the courts, although careful review is of course
always required." Environmental Defense Fund, Inc. v. EPA,
supra, 489 F.2d at 1252; see Environmental Defense Fund, Inc. v.
EPA, 636 F.2d 1267, 1277-78 (D.C. Cir. 1980). Thus, "[ujnder
Che substantial evidence standard of review, EPA is not required
jo 'prove' its case in the reviewing court 'in some sense of
weight of the evidence.'" Environmental Defense Fund v.
£PA, 598 F.2d 62, 90 (D.C. Cir. 1978). In short, the court's
"task is made somewhat simpler than the agency's by adhering
conscientiously to the proper scope of judicial review of admin-
istrative action . . . ." Environmental Defense Fund. Inc. v.
EPA, 489 F.2d 1247, 1252 (D.C. Cir. 1973).
Thus, the Administrator's order assessing a civil
penalty against Yaffe must be upheld unless this Court finds
00163
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- 3 -
In the July 30 memorandum, EPA opposed the application
for mandamus and injunction sought by Coastal in No. 82-^4253.
EPA also sought dismissal of the petition to review CPA's
alleged denial by inaction of Coastal's permit renewal applica-
tion (No. 82-4251). However, EPA's memorandum referred to
the petition as No. 82-4252 instead of. No. 82-4251. EPA
therefore requests this Court to consider the July 30 memorandum
in connection with EPA's motion to dismiss the petition for
review filed in case No. 82-4251.
EPA's July 30 memorandum did not address Coastal's
petition to review its June 1, 1979 permit as set forth in
No. 82-4252. 1/ Hence, this supplemental memorandum is submitted
in support of EPA's motion to dismiss in No. 82-4252.
ARGUMENT )/);- J.
Section 509(b)(1) of the Clean Water Act (CWA), 33 U.S.C.
1369(b)(1), provides that judicial review of NPDES permit
limitations and conditions may be had in the proper United
States Court of Appeals, but only upon application made within
ninety days from the date of issuance of the permit. 2/
1/ EPA did, however, present a summary argument (Respondent's
Mem. at 24) that Coastal may not now obtain review of its
June 1, 1979 permit.
2/ Section 509(b)(1) provides, in pertinent part:
Review of the Administrator's action * * * (F) in issuing
or denying any permit under section 402, may be had by any
interested person in the Circuit Court of Appeals of the
United States for the Federal judicial district in which
(FOOTNOTE CONTINUED ON NEXT PAGE)
OOI64
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- 4 ~
Effluent limitations and conditions of a permit are not open
for review *in any civil or criminal.proceeding for enforcement"
of the permit. Section 509(b)(2), 33 U.S.C. 1369(b)(2). 3/
The 90-day time limit is a "statute of limitations"
which absolutely bars late filings. Peabody Coal Co. v.
Train, 518 P.2d 940, 942 (6th Cir. 1975). Accord, Homestake ,
Mining Co. v. EPA, 584 F.2d 862 (8th Cir. 1978); American
Assoc. of Meat Processors v. Costle, 556 F.2d 875 (8th Cir.
1977). 4/
The strictness with which this jurisdictional principle is
applied is illustrated in Peabody Coal Co., supra, in which
r '
a petition filed just two days past the time limit was
rejected as untimely. Similarly, in American Assoc. of Heat
Processors, petitioners' failure to file a timely petition
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
such person resides or transacts such business upon appli-
cation by such person. Any such application shall be made
within ninety days from the date of such determination,
approval, promulgation, issuance or denial * * *.
V Section 509(b)(2) provides:
Action of the Administrator with respect to which review
could have been obtained under paragraph (1) of this
subsection shall not be subject to judicial review in
any civil or criminal proceeding for enforcement.
4/ In applying the analogous time limit under the Clean A;.r Act,
courts have also uniformly rejected late-filed petitions
for review. Oljato Chapter of the Navajo Tribe v. Train,
515 F.2d 654, 661 (D.C. Cir. 1975); Granite City Steel
Co. v. EPA, 501 F.2d 925 (7th Cir. 1974).
00165
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- 5 -
in the court of appeals barred a petition to review certain
rules despite "substantial uncertainty as to the proper
forum in which to seek review" during the period preceding
the filing. 556 F.2d at 877.
A petition may be filed after the 90-day limit only if the
petition "is based solely on grounds which arose after such
ninetieth day." CWA, 5509(b)(1), 33 U.S.C. 136'(9(b)(l)
(emphasis added). Coastal has alleged no such grounds. It
poraplains that its permit does not reflect applicable effluent
limitations guidelines. However, as we have explained (Respondent's
Mem. at 24 n. 10), Coastal had two opportunities to raise
this argument: when its 1974 permit was issued and when the
permit was renewed in 1979. It never did so.
The only new grounds which Coastal might allege are that
the provisions of the Settlement Agreement in NRDC v. EPA,
No. 80-1607 (D.C. Cir.) affect Coastal's permit. Coastal
may contend, as it did in its Application for Writ of Mandamus
and Injunction, that the provisions of the Agreement requiring
EPA to propose certain amendments to its anti-backsliding
rule, 40 C.F.R. $122.62(1), somehow invalidate existing
permits which comply with that rule. But that Agreement
does not authorize EPA to reissue Coastal's permit with less
stringent limitations; it simply requires EPA to propose
rules and to complete rulemaking proceedings. It does not
00166
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- 6 -
stay the existing "anti-backsliding" rule or constitute any
admission that that rule is unlawful. For a more detailed
discussion of this point, see Respondent's Mejtu at 26 and
Attachment G. Accordingly, the Settlement Agreement does
not constitute new grounds and Coastal's petition for review
is therefore time-barred.
Whatever equitable arguments Coastal may raise do r.ot
permit this Court to disregard that time limit. Appeals to
this court's equitable powers can not expand the court's
jurisdiction beyond that granted by the relevant statute.
See Peabody Coal Co. v. Train, supra, 518 F.2d at 942;
American Assoc. of Meat Processors v. Costle, supra, 556
F.2d at 877. Thus-, for example In Sun Enterprises, supra,
532 F.2d at 291, the court rejected a late-filed petition
arguing that EPA had failed to follow its own regulations in
issuing an NPDES permit. That is the same argimsnt Coastal
seeks to raise in this late-filed petition.
CONCLUSION
In 1979, Coastal could have filed the petition for
review in case No. 82-4252. It is now three years too late,
and Coastal can allege no new grounds so as to invoke the
00167
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A. Judicial Review Is Precluded Because
EPA Has Hoc Taken Final Agency Astion
on Renewal of the Mctr.o N'PDES Pernic.
Federal .idisioistracive agency riecisions muse be "final"
before judicial review is authorized, the criteria for dcCertainIn
when an agency determination is "final" .vera sua.iariaed rcct;njtly
00168
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in FTC v. Stanoarc Oil Co., 449 U.S. 232 (1980). There the
Supreme Court lie 1J chat issuance of a complaint by the FTC charging
oil companies with unfair trade practices was not "final agency
action," if the validity of the charges wtre subject to further
review in an agency adjudicatory hearing. 32/
The Court said that determining whether a given agency
action is "final" is to be answered pragmatically. 449 U.S. at
240, 243. Three questions are to be as feeJ: (1) Is the agency action
"definitive" or are there still further agency procedures which
may narrow the areas of dispute or even moot the controversy"
(2) Does the agency action have a legal force or great practical
impact on the party seeking judicial review? (3) Would ixme^iate
judicial review servo efficiency or enforcement of the regulatory
scheme? 449 U.S. at 240-243.
Application of these criteria have shown that Wisconsin's
sixth and seventh counts involve no "find" EPA action warranting
immediate judicial review. EPA has not in.ide any "definitive"
ruling as to the MWCC/MPCA' s obligations to ir.eet wp.ter quality-
standard based effluent limits for discharges from either the
Metro plant or combined sewer overflows, nor has EPA raade a
dispositive ruling on the MPCA's proposed renewal of the iletro
plant NPDES permit. These determinations will not be made until
the end of the MPCA proceedings on the draft Metro perrait, or if
EPA decides to "veto" the MPCA permit, when EPA issues a final
federal NPDES permit.
32/ Accord, Red River Transport and Development Co., Inc. v. FAA,
630 F. 2d 592 (,d ch Cir~ T15W5 (issuance oi letter by KM staff to
air freight company, stating an interpretation of re^ulatio.-i, not
final where matter still subject to review by General Counsel >
and National Transportation Safety BoarJj; Consolidated Cas Supply
Corp. v. Fr.RC, 611 F.2d 951, 'J50-1 (4th Cir^T^JTrc^^stafiT
issuance or rule to show cause why p,as curtailment plar, should
not be enforced, held not final order where. FiiKC hearing not yep
concluded);Dow Chemical v. Ruckleshaus. 477 F.2d 1317, 1325 (3th
Cir; 1973) TAdministrator issued 3 decisions cancelling uses
of pesticides; held no "final" order where validity of cancellation
could be further contested in EPA adjudicatory hearing).
00169
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- 32 -
The conduct of Che MPCA proceedings and EPA's review
thereof have had no concrete legal impact on Wisconsin. It is
pursuing the MPCA and EPA administrative procedures to obtain
a ruling in its favor on the terms and conditions of the revised
Metro permit. Finally, judicial review in this Court now would
be a direct interference into the adminiytrative agency process
for issuing KPDES permits. Congress has .leiLclately allocated
State/federal power to determine the terms and condition of
NP'JES permits and has entrusted that power, in the first instance,
to expert agencies, not the United States District Courts. E.g.,
Milwaukee v. Illinois, U.S. , 101 S.Ct. 1784, 1795-7
(19SI). As in FTC v. Standard Oil Co., supra, 449 U.S. at
242, this Court should decline to review E?A's action now, because:
Judicial intervention into the agency process
denies the agency an 'opportunity to correct
its own mistakes and to annly its expertise.
Weinberger v. Snlfi , 422 U'.S. 7'.9, 763 ( 1 975).
Tntervent.ion also Teads to piecemeal review
which at tho least is inefficient and upon
completion of the agency process might prove
to be unnecessary. HcGee v. United States,
402 U.S. 479, 434 (1971); Mc'.'art v. Uuiueu
States, 395 U.S. 1 85,1 95 (Tyo?; .
Until the MPCA or EPA has issued a final renewal permit
to the MWCC and the Council, there'is no final agency action for;
this court to review; Accordingly, Wisconsin's sixth and seventh
counts should be dismissed. EPF v. Costie, 439 F. Supp. 980, 1003
(E.D. N.Y. .1977) (dismissing citizens' claim, until after LiPDES permit
was Lssued, alleging that State of New York and EPA had not required
adequate secondary treatment controls on municipal sewage discharges) .
00170
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J/
B. Wisconsin Has Failed to Exhaust
Its Administrative Remedies.
In addition to the finality requirement, Wisconsin's
sixth and seventh counts should also be dismissed for failure to
exhaust administrative remedies before the MPCA and EPA. The
failure to exhaust administrative remedies is a bar to a district
court's exercise of jurisdiction. Myers v. 3ethlehepi Corporation
00171
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- 33 -
303 U.S. 41, 50-M (1938); Jordan v. United States. 522 F.2d':1123,
1132 (3ch Cir. 1'.'75).
The doctrine is well established that judicial
relief is not available for supposed or threatened
injury until the prescribed administrative remedy
has bee n exhausted * Mvers v. Bethlehem Shiobuild ir.z
Corp. , 303 U.S. 41, 50-1 (193o). '
Parr v. Career, 640 F.2d 163, 165 (8th Cir. 1981); Red River
Transport and Development Co., Inc. v. FAA630 F.2d 592, 595!
(8th Cir. 1980).
Wisconsin has failed to pursue to finality its above-
mentioned opportunities before the MPCA and EPA to participate
in formulating the revised Metro plant' N?i)£S perrcit. in those
proceedings, Wisconsin can seek to resolve its claiias of impacts
on the Mississippi Kiver water quality istand.irds from both the
Metro plant ana combined sewer overflows.
Requiring Wisconsin to pursue those remedies prior to
seeking judicial review will fully scrv's the policies underlying
the exhaustion'doctrine. First, it will avoid interference with the
administrative process and efficiency. 'Normally
it is tiesireable to permit the agency to exurcise
its discretion and apply its expertise prior to resort
to the Courts.' E.r. FTC v. Standard Oil Co. of Cal.,
(449) U.S. (232) (198077"
Parr v. Carter, 640 F.2d 163, 165 (3th Cir. 1981). The MPCA and
EPA, not this court, arc in a better position to develop a factual
record and apply the law in the first instance, to the complex
technical questions involved in Wisconsin's claims. 33/
Second, requiring exhaustion will discourage flouting of
the administrative process. FTC v. Standard Oil Co. of Cal., supra.,
449 U.S. at 242-3; United States v. Newman, 473 F. 2d 829, 331 (3th
Cir. 1 573). It will help ensure that neither regulated er.ni^ltos
33/ See Weinberger v. Bcntex Pharmaceuticals. 412 U.S. 645, 653-4
(1973); Jordan v. United Staces, 522 I'.2"d 1128, 1 1 32 (3th |
Cir. 1975); Dow Cheir.ical Co. v. Ruckleshaus, 477 F.2d 1317',
1325-6 (8 th Cir. 1973) (Challenge to El'A: decision on cancellation
of pesticide should await completion of evidentiary hearing ori
technical issues of risks of pesticide to unvironraenc).
00172
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- 34 -
nor the public continually and prematurely involve the courts in
the process of writing UPDES permits. It. will speed the process
of concluding agency hearings on proposed permits and ensure tha|t
final permits are issued speedily, so that the goal cf cleaning
up the Nation's waters proceeds expeditiously.
Third, exhaustion will allow the liiCA and EPA to correct
any errors that might be made in resolving the issues raised by
Wisconsin, thereby obviating judical review. 34/ This factor is
particularly compelling, whore, a;; here, elaborate procedural
safeguards exist at two levels of government for close scrutiny
of Wisconsin's arguments and EPA's Region V has shown that it shares
many of Wisconsin's concerns. See Kanzardo Affidavit (Exhibit I to
EPA's Motion to Dismiss) at Ex. 0.
Moreover, Wisconsin cannot show any basis for avoiding
the exhaustion requirement. The determination of appropriate
terms and condition in the revised Metro NPUES permit is clearly ;
within the. jurisdiction and discretion of the MPCA and EPA. S402,
Clean Water Act. The MPCA and EPA procedure.-", for resolving the
issues raised by Wisconsin contain elaborate procedural safeguards
and form plainly adequate remedies. Finally, Wisconsin will
suffer no significant harm by pursuing these remedies, since
the burden' of participating in administrative litigation does not;
consitute irreparable harm. FTC v. Standard Oil Co. cf Cal.. 449'
U.S. 232, 244'(1980); Renegotiation Board v. Bannercroft Clothing.
Co., 415 U.S. 1, 24 (1974)._
34/ See Parisi v. Davidson, 405 U.S. 34, 37 (1:972); Parr v. Carter,
640 F.2d 163, 165 (8th Cir. 1931); Jordan iv. United States,'
522 F.2d 1 128, 1 132 (3fn Cir. 1 975). nn««yio
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C. The Issues Wisconsin Seeks to Raise
Are Hoc Ripe for Judical Review.
One of che important aspects of the "case or controversy"
5^ requirement of Article 111, Section 2 of the United States
00174
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- 35
Constitution, is that issues posed fur decision in judicial review
of agency action case be "ripe". Vorbcc/. v. Schnicker. 660 F.2d
1260, 1265 (8th Cir. 1931); Dresser Industries. Inc. v. United
States. 596 F.2d 1 231, 1235 (5th Cir. 197-i). roh. don., 601 F.2d
586, cert. den., 44'* U.S. 1044 (19&0). The policy underlying the
ripeness doctriTie was explained in Abbott Laboratories v. Gardner.
387 U.S. 148-9 (1967), as ore designed
to prevent the courts, through avoidance of
premature adjudication, fro:a entangling themselves
in abstract i}isagroc::iencs over administrative
policies, and also to protect the agencies from
judicial interference until the administrative
decision has been fornalizoJ ;md its effects felt
in a concrete way by the challenging parties.
If. a case is not ripe, a district court lacks jurisdiction.
Dresser Industries. Inc., supra.
Determining whether a given case is "ripe" is a natter
of "conmon sense" judgment (Diamond Shamrock Corporation v. Cos11e,
5o0 F.2d 670, 675 (D.C. Cir. 1973)), and involves a two-step inquiry:
The problem is best seen in a two fold -ispect,
requiring us to evaluate bocli the fitness of
the issues for judicial decision and the hardship
to the parties of withholding court consideration.
Abbott Laboratories, supra, 327 U.S. at 149.
The issues Wisconsin seeks to raise in counts si:< and seven
satisfy neither elercent of this test.
First, these issues are not yet "fit" for judicial decision.
Ue have already shown that no final EPA action on Wisconsin's
issues has been taken. Moreover, the issues raised by Wisconsin
are not strictly legal. They involve resolving numerous questions
of highly technical fact and application of these facts to the
regulatory program. But even if EPA had taken final action or
the issues were mostly legal, that would not bo dispositive in
deciding whether the Issues are "fit." 35/
33/ Toilet Goods Ass'n v. Gardner. 387 U.S. 15B, 162 (1967);
TJianond Sr.airrock Cora v. Cos tie. 530 F.2d 67C, 67'. (D.C.' Cir
1978); KcLhlehc?, ilLcoi Cnn> v. K!'A. 536-F.2J 15&, 1G1 (7th Cir. .197C)
00175
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ssSiSSESffiEi
«i3
*•&)&&i
- 36 -
What is loosc important in deciding if issues are "fit"
is whether the issues will be sufficiently nature for judicial
review only after further agency proceedirgs. Federal courts
hold issues not tu be "fit" for review \^hcrc further proceedings
before an agency are necessary to create m Adequate .-idministrativf
record analyzing the issues to be decided. 3£f The courts also
decline to review agency action at intermediate phases of agency
procedure, when challenging parties fail 10 complete available
adninistrative remedies. 37/ In Diamond Shamrock Co. v. Costle,
supra, 580 F.2d at 674, the court held challenges to the legality
of EPA rules under the Clean Water Act not ripe. Although EPA's1
action was "final", the court held chat EI'A night interpret the
rules in the subsequent course of issuing NPDES permits in such
a way as to moot the issues.
Wisconsin's challenges to the nature of the next Metro
permit are also not "fit". The state still has administrative
avenues to pursue, an MPCA/EPA record to be-created to flesh out
the issues, and M?CA or EPA action on issuance of a final IIPDES
permit may resolve Wisconsin's claims.
36/ Toilet Goods Ass'n v. Gardner. supra. 387 U.S. at 162-4 (FDA
rules on government inspections not ripe where no record existed
as to kinds of enforcement problems encountered by agency to necessitate
the rules and to assess adequacy of safeguards); Dresser Industries,
supra. 596 F.2d at 1235 (development of factual record needed to
assess estoppel clain and other legal arguments); Ncv? York State
Exchange v. Bloon, 562 F.2d 736, 741 (D.C. Cir. 1977)"^ (Challenge to
Comptroller of Currency Opinion that proposed autonatic stoc^c-purchase
plan was valid hold not ripe because record not completed on question
of whether implementation of plan would violate enabling statute.)
37/ Toilet Goods Ass'n, supra, 387 U.S: at 162-4 (r'DA rules rn
£Overnne:TE inspoct ions not ripe wli-jre no record w/.istrd to
kinds of enforcement problems enoounternd by agency to neccea:>'Ltnte
adoption of the rules); Dresser Industries, supra. 5y6 r.2c at
1 235 (Development of factual record neuiiua to as sons valid icy oC
estoppel and other legal arguments). New York Stock Excnan/.L- v.
Bloom, 562 F.2d 736, 741 (D.C. Cir. 197'/) (Cnailenge to Comptroller
ot Currency Opinion that proposed automatic stock purchase plan
was valid, held not ripe because record not completed on question
of whether implementation of plan would violate enabling statute).
00176
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- •> / -
As for the relative hardship to Che parries, the burden
of immediate judicial review will fall on *.;he MPCA and EPA, not
Wisconsin. Wisconsin uiay resolve its contentions about the
legality of the m-xt Metro permit before E'°A and MPCA. Thus,
any claiia of injury resulting from that permit is only speculative.
In contrast Wisconsin cannot show that it lias suffered serious
"hardship". 38/ Immediate judicial review of Wisconsin's issues
will require EPA to simultaneously determine appropriate conditions
for the revised permit in both this Court and in the administrative
process and will deprive EPA of the opportunity to create its
own administrative record and decision. Therefore, Wisconsin's
issues under counts six and seven of its complaint are neither
"fit,1' nor impose substantial hardship, and are not "ripe".
38/ Toilet Goods Ass'n, supra, 387 U.S. at 16,4; New York Stock
Exchange v. bloom, 5b2 r.2d at 741-3 (where, agency action
still subject to lurther agency adjudication and modification, ho
hardship to complaining party) .
00177
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....
.iiSrrn-ntr.-j
D. EPA Has Primary Jurisdiction Over
Wisconsin's Claims.
The doctrine of primary jurisdiction also ccrapels
dismissal of the sixth and seventh counts. This doctrine
leaves to adninistrative agencies, rather than the courts,the
first opportunity to determine issues which a regulatory scnene
is coranitted to the special competence of the agency:
In cases raising issues of; face not within
the conventional experience of judges or
cases requiring the exercise of administrative
discretion, agencies created by Congress for
regulating the subject ioacter should not be
passed over. This is so even though the facts
after they have been appraised by specialized
competence serve as a premise for legal
consequences to be judicially defined.
Weinberger v. Bentex Pharmaceutical, 412 U.S. 645, 654 (1973),
quoting, far East Conrerence v. United States, 342 U.S. 570. 574
(Ttsiyr ! «
The doctrine particularly applies if an agency has commenced,
but not cor.ipletcd, proceedings to consider the question a party
00178
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Jo -
: ... ¦¦ • ¦¦¦r" •
i-:/. — * ^=-'?S^2i.-4r^ „-w-.
•••¦' "* •'¦'l-i • • <£~'- —•
'i3utnaS2&t£m£*
attempts co litigate in the court. FPC v. Louisiana Power &
Light Co.. 402 U.S. 621, 647 (1972); Burlington Northern, Inc.
v. Chicago and North Western Transportation Co.. 649 F.2d 556,
559 (8th Cir. 1931).
Wisconsin's issues are plainly suited for resolution
in the MPCA and 'SPA process of review of the Metro plant permit
renewal. This will resolve the critical factual issues of how
much sewage pollution is occuring in the Mississippi River, how
ouch pollution reduction is needed to protect the River's uses,
what technology is required to achieve the desired level of
reduction, and how long it may take to accomplish that result.
In similar environmental circumstances, both the Eighth
Circuit and this District have invoked the' doctrine of primary
jurisdiction to defer challenges to agency decisions until the
completion of administrative permit proceedings. 3S_/ In
United States v. Horastake Mining Co., 595 F.2d 421, 429-430
(1979), the Eighth Circuit relied on primary jurisdiction in
refusing to allow a district court challenge to the application
of a deadline for compliance with CWA effluent limits. The
I
Circuit said that primary jurisdiction required that the issue
first be referred co EPA for determination according to the Agency's
expertise in an administrative proceeding.
Finally, in a case on all fours with the instant
matter, Montgomery Environmental Coalition jv. Washington
Suburban Sanitary Commission. 607 F.2d 378 (D.C. Cir. 1979), the
court ordered dismissal on primary jurisdiction grounds of a
citizen suit seeking to enjoin violations o|f CWA effluent limits
39/ E.g., Izaak Walton League of America v. St. Clair. 497
F,2d 849, 852-853 (8th Cir. 1974)(Deferring challenge on
question of whether exploratory mining should be permitted >'oy
U.S. Forest Service in Boundary Waters Wilderness Area); Minnesota
Public Interest Research Group v. Adams. 482 F.Supp. 170, 130-131
(D. Minn. 1979) (Primary jurisdiction in state agencies to
determine if environmental impacts of highways warrant denial of
state environmental permits).
00179
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- 39 -
from a municipal sewage treatment plane. The case was dismissed
because the question of appropriate effluent limits and compliance
schedules was being simultaneously determined by EPA in the process
of issuing an NPDES permit for the treatment plant. 607 F.2d at
381-3. Wisconsin's sixth and seventh counts raise the same
problems and should be similarly dismissed.
Wisconsin's sixth and seventh counts should be dismissed
on any of the four doctrines of lack of final agency action,
exhaustion, ripness, or primary jurisdiction. Should this court
disagree, it should still hold that all of Wisconsin's claims
against the Administrator, EPA should be dismissed for the reasons
explained, infra.
00180
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A. Diversity Jurisdiction Does Hot Exist
Over The Administrator. EPA.
Mo basis exists for application of diversity jurisdiction
as to the Administrator, EPA. Neither plaintiff, nor the defendant
Administrator, EPA, are "citizens" of different States for the
purposes of the diversity statute, 28 U.S.C. 11332. The term
"citizens" under 11332 Beans individual legal entitles, but not
the sovereign governments of the States or the United States.
It is well-settled that the State governments, such as plaintiff
Wisconsin, are not "citizens" for diversity purposes. 40/ Neither
is the United States. Agencies cf the United States and their
officeers are not "citizens" of particular States. Kent v.
Northern California Regional Office of Am. Friends Svc. Coam.,
497 F.2d 1325, 1327 (9th Cir. 1974). Federal agencies and officials
cannot be aade parties under a theory of diversity jurisdiction. 41/
Therefore, Wisconsin cannot establish jurisdiction over the
Administrator, E?A under 11332.
40/ Moore v. County of Alameda. 411 U.S. 693, 717 (1973)
overruled on oth'r grds, "Korrell v. Dept. of Social Services
of City of New York^ 4J6 U.S. 658 (1978); State Highway Commissioner
Wyomi:ng~ Ptgfr Construction Co.. 278 U.S. 134, 2U0 (1*29);
Postal Telegraph Co. v. Alabama. l35 U.S. 482 (1894); 13'Wright,
Miller, & Cooper, Fed. Prac & Proc: Civil S3602, n.13(1975)
bit Kent,, supra; Schroeder v. Pair's. 32 F.2d 454, 456 (8th Cir. ,
... J?29); Ajay Nutrition Foods. Inc. v. Food & Drug Administration.
378 F.Supp. *lu..215, n.14 (b.N.J. 1974); att'd w/o Sp". 513 F.22
6Z5 (3rd Cir. 1975); McGlynn v. Employers commercial Union Ins. Co.
of America. 386 F.Supp. 774, 776 (b. P.R. 1974). ~~
00181
-------
B. Thn "Citizens Suit'' Provision Of The Clean Water
Act Docs Not Provide For Jurisdiction For
Jurisdiction Or A Claim For Relief Against EPA.
Wisconsin also invokes jurisdiction under the ''citizen
civil action- provision of $505 of the CWA, 33 U.S.C. $1365. The
"citizens suit" authority is a connon feature of the federal
environmental regulatory statutes enacted in the 1970s. The
first was adopted in 1970 amendments to the Clean Air Act, and
was used by Congress as a nodel in subsequent enactments of
citizens suit provisions in other EPA statutes, including the
CWA. 42/
42/ S.Rep. No. 92-414, 92
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- 41 -
Each of these citizens suit provisions, including the
CWA, allow* for two general categories of suits. One pernlts
suits against regulated entlcities alleged to be violating
substantive pollution control standards. 'E.g., 1505(a)(1), CWA,
33 D.E.C. f1363(a)(1). The secoud allows suit against the
Administrator of EPA. when the Administrator Is alleged to have
failed to perfora aowe "mfadiscTetionary" duty imposed by that
•tatata. 'E.g., 1303(a)(2), CWA. 33 D.S.C. 11365(a)(2). Wisconsin
has failed to establish that either category applies to EPA in
this case*
1« The Coaplalnt Falls to Establish Jurisdiction
Over EPA Under 1505(a)(1), CUA, 33 U.S.C.
11365(a)(11. ; ¦
Section 505(a)(1) authorises a civil ault to be filed:
Against any person ... who is alleged to be in
violation of (A) an effluent standard or limitation
under this chapter or (b) an order issued by the
Adnlnlstrator or a State with respect to such a
standard or limitation ... 33 U.S.C. 11365(a)(1).
As the text of the section reveals, it provides a basis
for Jurisdiction over persons alleged to be causing polluting
acts. It does not extend Jurisdiction to cover EPA itself when the
Agency does not discharge water pollutants, but rather only adninisters
pollution control requirements. District of Columbia v. Schramm.
631 F.2d 854, 859 n.10 (D.C. Cir. 1960) (dlst. ct. lacked
Jurisdiction under 1505(a)(1) over EPA and (state NPDES agency,
where EPA/atate only alleged to have Improperly regulated a third
party); Sun Enterprises Ltd. v. Train, 532 F.2d 280, 287-6 (2d
Clr."1976) (dilt. et. correctly -ruled that 505(a)(1) does not
provide Jurisdiction over EPA Cot failure to regulate some third
party). Wisconsin does not claim that EPA Itself has "violated"
an effluent standard or limitation or administrative enforcement
order. Only the MUCC and the Council are alleged to be committing
such violations. Accordingly, 1505(a)(1) does not provide
Jurisdiction over EPA.
00183
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2. Meither Jurisdiction Nor a Claim for Relief
Can Be Found Against EPA Under 1505(a)(2),
Since Wisconsin Does Not Establish that EPA
Failed to Perform Any "Hon-Discretionary"
Duty Required by the CWA.
Section 505(a)(2) authorizes citizens suits in the nature
of mandamus:
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 Administrator."
Section 505(a)(2), 33 U.S.C. 11365(a)(2) (Emphasis added). The
non-discretionary duty citizen suit provision of Che CWA and similar
authority contained in other EFA statutes are narrowly construed.
HBDC v. Train. 512 F.2d 1351, 1355 (D.C. CiT. 1974). They provide
no basis for suit where the statute affords EPA discretion to take
administrative action. 43/ They eannot be used to obtain Judicial
review of EPA's exercise of discretionary authority. 44/ The CWA
provision does not even apply where EPA is "misguided or uniformed".
See MRDC v. EPA, supra. 512 F.2d at 1355. To maintain a non-
discretionary duty citizen suit, Wisconsin oust show that EPA
has failed to take some action clearly mandated by a particular
statutory provision. Sierra Club v. Train, 557 F.2d 485 (5th
Cir. 1977) (CWA - plaintiff oust show that EPA had a mandatory
duty to act).
Wisconsin's complaint alleges two general sets of problems.
One is a claim that the MPCA and EPA failed to issue an adequate
renewal NPDES permit to the MWCC and the Council. Complaint, counts
43/ District of Columbia v. Schramm, 631 F.2d 854, 859, n.10
(D.C. Cir.. 6.18/80) (CWA Case): Kennecott Copper Corp. v.
Costle, 572'F.2d 1349, 1351-1353 (9th Cir. 1978) (Clean Air Act
Case); Kentucky ex rei. Hancock v. Ruckelshaus, 497 F.2d 1172,
1177 (6th Cir. 1974). aff'd, 426 U.S. 167. 96 S.Ct. 2006, 48
L.Ed. 2d 555 (Clean Air Act Case); Committee for Consideration of
Jones Fall Sewage System v. Train, 387 F.Supp. 526, 529-330 (0.
Md. 1975, (CWA Case).
44/ District of Columbia v. Schramm, supra; Kennecott Copper
Corp.. supra. 572 F.2d 1349, 1351-1353;' NRDC v. EPA, 512 F.2d
1351 ."T335 (I57c7~Cir. 197^
00164
-------
-•>- ~A: '!5=6*'."w-.>:3
- A3 -
six - seven. The second Is a series of claims that the KWCC and
the Council failed CO comply with several conditions of their
existing HPDES penile and chat the MPCA and EPA have failed to
adequately abate those violations. However, EPA has no mandatory
duties under the Oik cither to issue ITPDES permits or to enforce
effluent limitations, compllance schedules, or other conditions
In existing permits. Since EPA has no such aandatory duties,
Wisconsin cannot sue EPA under 1505(a)(2), CWA.
Section 412 of the Act expressly affords discretionary
authority to EPA both to "veto" state HPDES permits and to issue
federal NPDES permits. Section 402(d)(1) - (2) authorises, but
does not compel, EPA to object to a state agency's issuance of
an HPDES permit. 33 U.S.C. 11342(d)(l)-(2). If EPA does so
object and the state fails to satisfy EPA'a objection, then
1402(d)(3) provides that EPA "may Issue Che permit" under subsection
402(a). 33 U.S.C. 11342 (d)(3) (emphasis supplied). Subsection
402(a), in turn, provides that EPA "may ... Issue a permit."
33 U.S.C. 11342(a) (emphasis supplied) By use of the word
"may" to describe the power conveyed to EPA to "veto" State permits
and issue federal permits, Congress plainly Intended to make
that power discretionary, not mandatory. 45/ Indeed,"EPA is
allowed to completely waive the "veto" power, further indicating
that it has so mandatory duty to disapprove any particular state
- issued NPDES permit. ChespeaKe Bay foundation. Inc v. United
States. 445 F.Supp. 1349, 1353-5 (E.D. Va. 1978).
45/ Committee for Consideration of Jones Fall Sewate System v. Train.
~ 387 F.Supp. 526. 529-510 Hd. 1975); aff'd. 533 100?
(4th Clr. 1976) (1504, CWA authority that EPA "may" coramence
suit clearly discretionary); Montgomery Environmental Coalition
v. Fr 1,- 366 F.Supp. 261 (D.D.1H 1973)(cWa case). See. Kentucky
ex rel. Hancock v. Buckleshaus, 497 F.2d 1172. 1177"T6th Cir.
1974). afff7T"S26 U.S. 167 <1575) (Clean Air Act: use of "may-
is discretionary); Corace v. Butterfleld, 387 F.Supp. ' '»6, 448
(E.D. H ">"'5) 'VAA "may" issue rules under tbise Cofecrol Act;
held discretiorary authority).
00165
-------
In eases where there is an approved state NPDES program,
Che courts have repeatedly construed the statute as affording EPA
discretion to exercise that "veto" power, especially In view of
the delicate allocation of federal/state power that Congress made
in providing for the CWA's NPDES program. E.g., District of Csluabla
v. Schramm. 631 F.2d 854, 859-862 (D.C. Cir. 1980); Hlanus River
Preservation Conaittee v. EPA. 541 P.2d 899, 907 (2nd, Cir. 1976);
Chespeake Bay Foundation Inc. v. Pnlted States. 145 F.Supp. 1349,
1354-5 (E.D. Va. 1978). Since CPA's permit "veto"/issuing power
la discretionary, Wisconsin cannot rely upon S505(a)(2) to sue
EPA for alleged failure to establish adequate terms and conditions
in Issuance or renewal of the Metro NPDES permits. District of
Columbia v. Schramm, 631 F.2d 854, 859, n.10 (D.C. Cir. 1980);
Sun Enterprises Ltd. Train. 532 F.2d 280, 288 (2d. Cir. 1976');
Chesapeake Bay Foundation. Inc. v. United States. 445 F.Supp. 1349,
1354-5 (E.D. Va. 1978).
Wisconsin's attempt to rely upon (505(a)(2) for juris-
diction in this court oust also fail, to the extent that the
State is alleging that EPA has actually issued an KPDES penaic
to the MWCC and Council, Dnder 1509(b)(1 );(!> , CWA, any person
can seek judicial review in a Court of Appeals of EPA action in
"issuing or denying" «a KPDES permit under 1402. 33 U.S.C.
11349(b)(1)(F) . Section 1509(b)(2), CUA, precludes challenges
In "civil enforcement" cases to EPA action that could be challenged
Id the Court of Appeal* under 1509(b)(1). 33 U.S.C. 11369(b)(2).
The Jurisdiction of the Courts of Appeals is exclusive as to matters
within the scope of 1509(b)(1). 46/ Challenges Co EPA's action
46/ Crown Simpson Pulp Co. v. Coatle, 445 U.S. 193 (19B0)(1509(b)(1)
{¥) provides Courts of Appeaie with exclusive Jurisdiction
to review challenge to EPA denial of NPDES permit); E.I.
DuPont DeNemours & Co. v. Train, 430 U.S. 112, 127-12BT1977): U.S.
&teel v. train. 556 E.2d 822. 837 (7th Cir. 19773; Hooestake
to. v. EPAT577 F.Supp. 1279, 1286 (D.S.D. 1979) (CRalierige to
nPD-S permit in district court dismissed in view of f509(b)(1)(F)) ;
-------
in Issuing KPDES permits will not be heard under 1505(a)(2);
they must be brought in a Court of Appeals under 1509(b)(1)(f) .
Sun Enterprises Ltd. v. Train. 532 F.2d 280, 288 (2d Cir. 1976);
Chesapeake Foundation, Inc. v. United States. 445 F.Supp. 1349
(E.D. Va. 1978); EOF v. Coatle, 439 F.Supp. 960, 1008 (£.0.
H.Y. 1977). Therefore* any dispute Wisconsin has with CPA in
"issuing* an HPSES permit Co the HVCC and the Council can only be
beard In a Court of Appeals, rather than in a district court under
1505(a)(2).
Wisconsin, apparently claims, in counts one through five,
that Jurisdiction over CPA also exists under 1505(a)(2), due to the
Administrator's alleged failure to require the HUCC and Council
to reaedy violations of the existing Metro plant NPDES periait.
There are aeveral reasons why such a contention must be rejected.
First, Wisconsin has another adequate reaedy for any such violations.
The "nondiseretionary" duty citizen suit authority provides for suits
in the nature of mandamus against EPA, See Columbia Transportation
Co. v. Jones. 572 F.2d 168, 170 (8th Cir. 1978) (Mandamus available
for government official's failure to perform mandatory duty). But
aandaaus is an extraordinary, equitable writ, and is not available
where plaintiff has another adequate reaedy provided by statute. 47/
Here, Wisconsin can proceed directly to enforce the
existing Metro plant HPDES permit against the KWCC and Council,
under 1505(a)(1) of the CWA's citizen ault provision. Section
505(a)(1), therefore, provides an adequate remedy, in lieu of
aeeking mandamus against EFA under 1505(a)(2), to accomplish
precisely the aaae result as a ault under (505(a)(2), e.g..
enforcement of the existing SPUES permit. City of Seabrook v.
Costle, 659 F.2d 1371, 1375, u.4 (5h Cir. 1981) (no mandamus suit
47/ Kelstoski v. Meanor. 442 U.S. 500, 505 (1979); Kerr v. United
States District Court. 426 U.S. 394. 403 (1976)7~United "States
ex rel.^tueen v. UanRelin. 527 F.2d 579, 582 (8th Cir."T97TJT
00187
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TOP.
^ . ... ¦
" •: ~ • • ¦':¦ .—:
• ¦• v'jT ¦.¦*¦¦ r^rZ".
"• ..^;^;:'-"--'?rt,.rr-?.:-'-v.-',
. - ¦ "' '¦
- 46 -
allowed to compel EPA to take enforcement against air pollutore
where citisen could directly sue companies to abate violations
under section of Clean Air Act analogous to 1505(a)(1), CWA).
In any event, EPA lias no "non-discretionary* duty to
take enforcement actions for any particular NPDES pens it violations.
The executive branch oft^ke federal government and Its agencies
¦re traditionally afforded broad discretion in Investigating and
enforcing the lavs of Che United States. 48/ The exercise of that
discretion is ordinarily immune fron Judicial review. 49/ In
enacting the CWA, Congress did not convert this traditional grant
of enforcement discretion into a mandatory duty owed by EPA.
First, EPA has purely discretionary authority to determine
whether a discharger has violated an HPDES permit, and .that
determination is • pre-condition Co EPA enforcement under the
Clean Vater Act. CPA's civil enforceaent authority over NPDES
permits is set out in 1309(a)(1) - (3) of the Act, 33 U.S.C.
11319(a)(1) - (3). Those subsections authorize EPA to utilise a
broad range of civil enforcement tools, such as notices of
violations, administrative compliance orders, or civil suits for
equitable or injunctive relief. Invocation of each of those
48/ Hat'l Milk Producers Fed, v. Harris, F.2d , Mo. 80-1687
(8th Cir., July 9, 1981)(slip. op. et 8-9) (suitto compel
FDA to .enforce its rules dismissed); City of Seabrook v. Costle.
659 F.2d 1371, 1374 (5th Clr. 1981)(Clean Air Act case); KocEFord
Red1-Mix Co. v. Ilpp. 632 F.2d 30, 32 (7th Cir. 1980); cert, den
sub noro.""Countryman v. 11pp. U.S. , 101 S.Ct. 1388 TT581)
(collecting. HUtifcases); weey v. Dorsey. abB F.2d 2757 (2d Cir.
1978); Klxmlller v. SEC. 492 F.2d U\. 645 (D.C. Cir. 1974):
Peek v.~HTtchell. 419~F72d 575, 577-57 (6th Cir. 1970).
49/ Hatlonal Hllk Producers Federation v. Harris, supra, slip.
op. at 8; City of Seabrook.supra, 659 F.2dat 1374 ("We
have held ... that the Attorney General'9 discretion "in choosing
whether to prosecute or not to porsecute is absolute." Smith v.
United States. 375 F.2d 243, 247 (5th Clr.), cert, den, 5H9 U.S.
841 U867)); v* Legeett & Piatt. Inc., 542 F.2d 655,
658 (6th Clr. 1975) ("The government alone is empowered to develop
that enforcement policy best calculated to achieve the ends
contemplated by congress and to allocate Its available, funds .and
personnel to execute its policy efficiently and economically").
00188
-------
*5Sc£^:r?"'- "r
^"rg^*jTy* L'-~x. :'-^v^j^ij»ai.-..^..-A~-»-l
- 47 -
powers first require*•that "... the Administrator "find" that
someone Is violating effluent limits or permits conditions. 50/
The statute does not. however, require that the Administrator
make any "finding" of "violation", it merely authorizes such
determinations.
The process of tfaking those determinations Involves
the application of administrative agency expertise to technical
facts. It is a classic example of discretionary, not mandatory,
power for the purposes of eltisen suits provisions, as the courts
have recognised. City of Seabrook v. Costle. 659 F.2d 1371.
1374-5 (5th Cir. 198V)(parallel "finding" power in enforcement
section of Clean Air Act construed as discretionary, precluding
citizens suit to compel EPA to take enforcement action); Kennecott
Copper Corp v. EPA. 572 F.2d 1348, 1355 (9th Clr. 1978) (to same
effect).
Section 309(a) thus leaves to EPA the discretion to make
the threshold decision on whether any "violation'' of an NPDES
permit has occurred which would subeeqent warrant formal EPA
enforcement action. Wisconsin does not say that EPA has already
made such a finding as to the matters alleged in the complaint
concerning the existing Metro plant NPDES permit. Since Wisconsin
has made no showing that EPA made such "findings", it cannot
establish even the pre-condition necessary to show that EPA has
50/ 1309(a)(1): "Whenever, on the basis of any information
available to him", the Administrator "finds" that any person
la In violation of a state permit, EPA can issue a notice of
violation, lesue an order, or file suit.
1309(a)(2); "Whenever, on the basis of information available
to him", the Administrator "finds" that violation of permit conditions
are wide spread in a atate, EPA can conduct hearings, issues orders,
or file suit.
1309(a)(3): "Whenever on the basis of information available
to him", the Administrator "finds" that any person is in violation
"of a permit, he can iasue an order or file suit.
00189
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- 48 -
a duty to take formal enforcement aecion under the Clean Water
Act. City of Seabrook. supra.
Assuming, arguendo. that EPA has found violations of
the existing Metro peralt for the purposes of S309, CWA, EPA
atlll has discretion Co exercise In deciding whether to prosecute
federal •oforceaent actlona voder that section. This appears
from the tact of 1309(a)(1) - (3), wherein Congress allowed EPA
to aelect aaong options of issuing notices of violations or
administrative orders, or of filing civil suits, when peralt
violations are found to occur. 33 D.S.C. 11319(a)(1) - (3).
United States v. Earth Sciences. 599 F.2d 368 (10th Clr. 1979);
Dnlted States v. City of Colorado Springs. Col. 455 F.Supp. 1364
(D. Col. 1978).
This discretion Is further shown froa the choice of
language that Congress used in 1309(b), CWA, to describe the type
of power it conveyed to EPA to institute both administrative orders
and civil enforcement suits. 51/ Congress said that EPA "is
authorised to coaaence a civil action ... for any violation for
which he Is author1ted to Issue a compliance order" under 1309(a).
33 U.S.C. 11319(b)(emphasis supplied). Describing EPA's power to
issue orders or file suits as "authorized" shows, according
to the ordinary aeaning of that word, that Congress afforded EPA
discretionary, not aandatory enforcenent authority. Creek Nation
v. United States. 318 U.S. 629, 639 (1943)(use of phrase denoting
51/ Section 309(b) provides. In relevant part, that
The Administrator is authorized to commence
a civil action for appropriate releif, including
a permanent or temporary injunction, for
any violation for which he is authorized to
Issue a compliance order under subsection (a)
of this section ..... 33 U.S.C. 11319(b).
00190
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- 49 -
that Secretary of Interior "is authorized" to sue is "necessarily"
discretionary not mandatory). 52/
The cases amply support the conclusion that EPA's
enforcement authority is discretionary. The Eighth Circuit has
twice held chat E?A has discretion to determine the necessity of
taking actions to enforce CWA effluent limitations. United
States v. Homestake Mining Co.. 595 F.2d 4*1, 430 (8th Cir. 1979)
(whether to grant extension to Industry until 1979 of 1977 deadline
for technology-based effluent limit is discretionary); Corn
Refiner's Assn v. Costle. 594 F.2d 1223, 1226 (8th Cir. 1979)
(whether to waive violation of effluent limit rules due to
treatment plant "upset" is for EPA's enforcement discretion).
The weight of decisions in other circuits and districts also says1
that EPA's enforcenent authority under (309(a) and (b) of the
CWA Is discretionary. 53/ For example, Sierra Club v. Train,
52/ It is, therefore, irrelevant that the statute, in S309(a)O),
says chat upon finding a permit violation, EPA "shall" issue
an order or file a civil suit. The use of "shall" in f309(a)(3)
is obviously qualified by the Congress' further use of the word
"authorized" in 1309(b), to describe EPA's civil enforcement power,
as discretionary. Moreover, the word "shall" Is usually construed
as indicating a discretionary, not mandatory, power when used in
federal statues that authorize executive branch officials to
enforce the laws. City of Seabrook v. Costle, 659 F.2d 1371,
1374-5, n. 3 (5th Cir. 1981) (use of "shall" in Clean Air Act
enforcement section); Inmates of Actlca Correctional Facility v.
Rockefeller. 477 F.2d 575, 381 (2d Cir. 1^73)("such language
("shall") has never been thought to preclude the exercise of
prosecutorial discretion."); Bass Angler's Sportsoan's Society v.
Scholze Tannery. 329 F.Supp. 339, 345-6 (fc.D. Tenn. 1971).
53/ State Water Pollution Control Board v. Train. 559 F.2d 921,
927 and n. 34 (4th Cir. 1977) (EPA has discretion to decide
whether to bring enforcement actions against municipalities for
violation of secondary treatment requirement in NPDES permit);
Sierra Club v. Train. 557 F.2d 485, 491 (5th cir. 1977) (EPA has
discretion ta issue order or file suit); Comittee for Consideration
of Jones Fall Sewer Systea v. Train, 387 T".Supp. 529, n.3
(l>. Ma. 1973), att'd, 539 F.2d (4th Cir. 1976) (citing. Hon t,hosiery
Environmental Coalition v. Frl. 336 F.Supp. 261 (0.D.C. T573))
(EPA has enforcement discretion to sue municipal dischargers)).
00191
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- 50 -
557 F.2d 845 (5th Cir. 1977), after a lengthy review of the text
of 1309 and the legislative hiBtory, the court concluded that
1309 was intended Co supply EPA with discretionary enforcement
authority. As a result, a citizens suit under 1505(a)(2) against
EPA was dismissed for failure to state a tfalu upon which relief
can be granted, since the plaintiff failed to allege that EPA
violated a "non-discretionary" duty. These eases should be
followed here to dismiss Wisconsin's complaint against EPA, for
the state's failure to show that EPA has violated some
"nondiscretionary duty."
In summary, Wisconsin cannot rely upon either subsection
505(a)(1) or (2) Of the CWA CO SUe EPA. Tf- in pwnMMn fKg<
state night, however, argue that it can base its suit aelitist EPA
upon subsection 505(h), which allows for civil actions against
EPA for failure to enforce effluent limits whfn those violations
are causing water quality effects in^affothcr state. 56/ Such an
argument would be wrong for several reasons. First, the language
of 1505(h) limits a pl§intiff to a "Governor of a State." Wisconsin
does not allege that its Governor has authorized or instituted
this suit,^and there is no indication that Congress intended
54/ Section 505(h) 33 U.S.C. 11365(h), provides, in relevant part,
that
A Governor of a statemay commence a civil action under
aubaection (a) of this section .... against the Administrator
where there is alleged a fa-i^ure of the Administrator to
enforce an effluent limitation^under this chapter the
violation of which is occurring in'-another state and is
causing an adverse effect on the public-health or welfare
in his state, or is causing a violation of~any water quality
requirement in his state.
00192
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*':; T/i''VV."'-..W^. ,
•: * • . *•' • :•.*' '"*¦'•¦ .' .' ' ¦.
- 52 -
quality impacts itoi the_ XoLro pl^nr an)(5) and (d), C*vi, under whi ;!.
EPA reviews individual NFD££ peraits issued Ly States, to detercine
whether State pericits jrtntain adequate conditions to. Inter alia,
prevent inter-sta>£rwster quality impacts. Here, as explained
above. EPA ivtn the midst of oaking that analysis; by review of the
proposed^renewal of the Metro permit. EPA is, therefore, providing
appropriate relief to Wisconsin as to any clain under S505(h).
JJf^A is thus entitled to sua:; ary Jud(v=ent on any 1505(h) clai-a.
C. The (^neral Federal Qjcstion Statute, 2S U.S.C.
IliiL'l; Affords I.'o'Basir Kor Jariicini Uevicw of,
Acticr. of Too Administrator', Et'A. in This Case).
In addition to positing Jurisdiction vr.dr.r diversity
principlo.-; and tfcr L'le&n Vater Act's citizen* suit provision,
Wisconsin also rcl.i«.-s upon the general federil - question jurisdiction
statute, 2c U.S.C. 11331(a). However, Wisconsin has failed to
establish the existence of any cause of action to obtain relief
against EPA under 61331.
While 28 U.S.C. 11331 does afford a district court
subject natter jurisdiction over questions arising under federal
laws, a plaintiff must al*o show that some other federal law
creates a eause of aietlon. Otherwise, the complaint aust be
dismissed. 56/ Here Wisconsin cannot show that soise other statute
creates a cause of netion for suit against EPA In the district court.
56/ Whccfiin v. feeler. ..373 V.S. 647, 649 (V>63); Icll v. Howl,
3TV o'.S. 67jt, t>aJ-3, (1V51); Local Pi v. rt'ti. 14, /i^alg-rnr^cf
Transit I'nion, AfL-CIO v. Greater rortl.md tfr^nsit District. 5i><»
F.2d 1, 11 (1st 0rfTl9?8)T3iIv7TJiiVT^lTv¦•rt;~C'J3*,Tra.TsiT-Uni'c-i.
AKL-C10 v. Kansas City'-Transportatio-.i nutr.orlty. 7I~+i,L, ~~
'Cir. 197d), cort, ~den.. L'fai. foVj.
00193
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.^JM^gWWqi
The Clean Water Acc docs noL provide any express ccj^c
r»f action for WltcuP.siri'.s attccpt Co nue il'" in the context of thi*
cuf/S?/ There arc only .two provisions in tue *st;=.ture for
euing^EHA. One Is the ciciscn suit audiority at- J505(a), and
our analysis shj-.j t.'wt no citizens suit lies a,-ains:: E>-A hero.
Pages 40-52, sujt*. Tfce other authority is in 5509(b), which
authorizes auits in the Court of Appeals, not the district courts.
The Water Act also falls to provide for-any isplled
cause of action telnet EfrA. In Middlesex County Sever Authority
v. Kational Sea Cleaners As„'n. U.S. 101 S.Ct.
2615 (1981). the Suprese Court considered whether the Water Act
afforded an "iaplicd" right of action to citizens to enforce the
NPDUS requirements of the Act against municipalities and EPA for
water pollution frori sewage discharge::. The court ruled that, In
view of the the rights expressly afforded to sue dischargers and
El'A in 15505(a) and 509(b), CW.\, no innlied rights of action will be
allowed. 101 S.Ct. at 2621-5. 58^ Therefore, Wisconsin cannot rely
57/ Soae EPA actions under the CUA. »»re revicv.'J>le under 2ti U.S.C.
$1331. See, e.n«. Chealcal Kfrs. Asa'n. v. Costlc, 455 F.Supp.
963 (W'.D. La. 1978)j(listiny and regulation of hai.irdous substance
under $311, CUA, reviewable under 28 U.jS.C. § 1331. In this case,
however, the possibility of 11331 review is not present, because,
as explained infra, the actions complained of arc either reviewable
only in the courts of appeals under 33 U.S.C. (1369(b) (SPA issuance
of a perclt following veto) or are entirely committed to EPA's
discretion (EPA's decisions not to object to a state HPDES permit,
or EPA decision not to take enforcement action). See infra, pp.
58/ Accord. District of Columbia v. Schramm. 631 F.2d 854, 862-3
(P.C. Cir. 1V8J); Cltv oT Evansv'iTIt v. quid Rccvclvin?.
Inc., 604 F. 2d lO.'io <7cn Cir. LV7
-------
- 54 -
upon acae provision of Che G»'A other than 5505(a) to establish u
cause of action against EPA. 59/
The only other possible basiajfer Vfoconsin to establish
a cause of action against. EPA Is the Aii-ir'isirtTive Procedure?
Act, 5 U.S.C. S70j e.t. reg. -The APA aoavti?«» "twerae district .
court review of SPA action und^r the .arbitrary end e«:>ricio;.s
standard. 5 U.S.C. >706(2). However, the APA does not a?^ly to
allow for review' of the 'kinds of U?A a;tiviei«s that Wisconsin
raises in its cooplaint. The judicial r*.-\iov chafer of ttie APr»
does, not apply to the extent that: "... agency action is comitted
to agency discretion by law." 5 U.S.C. (701(a)(2). Wisconsin's
complaints about EPA's failures to veto the Metro HPDES permits
issued by the XPCA (counts 6-7). or co enforce NPDES requirement*
(counts 1-5) are both activities "cowaitted to (EPA's) discretion
by law." As a result, the APA supplies no cause of action against
EPA in this case.
-TIhi courts have historically refused cum/miJ>efXdku
Judicial review ot cxcdb^ive branch otticialflJ^jie^crninations not
to conduct either law enforcement lnvp»cTj*ations or prosecutions.
National Hilk Producers Federation. >cal. v. Harris, F.2d
No. 80-1667 (8th Cix~ July 9. 1981) (slipr^ap^ ec 8), and other case
cited, at jjiges <>6-50, supra. Ttie rule precluding refri7; (1*7777
the court allowed a suit.againsc the U"r;>R of Engineers to proceed
under the Water Act on^the basis of 15ei{e), where the plaintiff
could not sitlsfy the clelecns suit r»«i jircaent': of i505(a). 401
F.Supp. at 527-8.
However, In National Sen-'Clampers. the Supiv:.!.; Court expressly
rejected the arfiusenc Chat the:savings clause o£ 5505(e) aftores
any busis for implying "a'xaus« of action oi:fsidi; the scope of tiie
expross citizens suit authority of 1505(a). 101 S.Ct. ar 2C24-5.
See also, Milwaukee v. Illinois. : U.S7 , 101 S.Ct. 1/cA.
1798 (19817: """"" —
00195
-------
60 -
¦HfWUi
" '.-1
JZT:;-
persit, then Wisconsin would have the opportunity to sc^i-^UtTic'ijl
review of EPA's action on that pensit ln_^_jC«TT~of Appeals under
1509(b)(1)(F), CV,\, 33 U.S. Cj^J-Mtf^b) (1)(F). See discussion,
supra at pages 44-£5c In either event, no basis exists for
Wisconsir^tflr-fely upon the APA for a cause of action in this
dj^Cfict court.
V
D. 28 U.S.C. 11337 Does Not Allsv Wisconsin
to Sue EPA.
Wisconsin also asserts federal jurisdiction over EPA
under 28 U.S.C. $1337. 2B U.S.C. S1337 allows the District
Courts to hear civil actions "under any act of Congress regulating
comncrce . . For essentially the sane reasons as explained
above for 23 U.S.C. S1331. this Court should dismiss plaintiffs'
coaplaint, to the extent it is based on 28 U.S.C. 11337.
First, suits under S1337, like 1)331, are United by
the doctrine of adequate retaedy at law. 72/ Thus, SI337, like
$1331, must be read to^ethur uith provisions of other relevant
Btatutes. If other statutes arguably provide Wisconsin with an
adequate remedy, §1337 does not create additional jurisdiction.
1 Moore's Fed. Prac. 10.62(5) at 690 (1980). Here Wisconsin has
other adequate remedies. As alternatives to suit against EPA in
this district court, Wisconsin can seek judicial review both of the
KPCA's renewal of the Metro penait in State court under State law,
and of EPA's Issuance of any substituted federal NPDES pern it in a
Court of Appeals under 1509(b)(1)(F) of the CUA. For violations
of NPDES pernits, Wisconsin may seek judicial relief directly against
72/ See ITT v. Vencap Ltd.. 519 F.2d 1001, 1015 (2d Cir. 1975) (vhere
Congress has provided a specific jurisdictional remedies
provision in securities act, citation to 23 U.S.C. §1337 "acJs
Getty Oil Co. (Eastern O;ii) v. Ruckelshaus. A67 F.2d 3'-.9, 355
Cir. 1973). cere. den.. 4u9 U.S" 11Z5 (district court had no
jurisdiction unier S1337 to entertain challenge to EPA air poll
regulations where Clean Air authorized suit to challenge rules
Court of Appeals); Venture Fund v. Willkie Farr & Gallagher, 41
550, 553 n.l (S.D. iJ.Y. 1 y7t»>-
no:Mn^")
("j vc
u : i o n
in
S K.Supp.
00196
-------
- 61 -
the HJCC and the Council under 1505(a)(1), CWA, rather than suing
EM over any declination to bring enforcement actions for pernit
violations.
In any event, plaintiffs cannot proceed under S1337,
because they have otherwise failed to establish a claim upon
which relief can no granted against the federal defendants undcr
federal law. While it nay confer subject-matter jurisdiction to
hear cases arising under federal laws regulating commerce, SI337
does not create a cause of action. 73/ To maintain suit under
11337, a claim for relief Bust be based in some other federal
statute. 74/
Wisconsin cannot show that the citizens suit provision
of the CWA provides a claim for relief against EPA. Wisconsin
also fails to show that 28 U.S.C. §1331, 1332, or the Adninistrativc
Procedure Act can be used to review EFa's actions. Since no
claim for relief against the EPA has been shown under federal
law, this suit should be disnissed against EPA to the extent it
is based on SI337. 7j>/
73/ Coloredo Labor Council, AFL-CIO v. AFL-CIO, 481 F.2d 396, 400
(10th Clr. 1973); Weigand v. Afton View Apts.. 473 F.2d 545, 543-9
(8th Cir. 1973); Kodgers v. Frito-Lay, Inc., 433 F.Supp. 200, 204 (».D.
Tx. 1977), aff'd, 611 F.2d 1074' "(5Eh Cir. 1980); 13 Wright, Miller i
Cooper, Fed. Prac. & Proc. 53574, p. 504 (1969).
74/ Atchison, Topeka & Sante Fe Ry. 6 v. Local, Nos. 70, 85 & 315,
1 F.2d 1 193, 1194-5 (9th Cir. 1975); Colorado Labor Council,
supra; Welgand, supra.
75/ See Thurman v. Tennessee Valley Authority. 533 F.2d 180, 183-4
(5th Cir. l"976) (administrative agency cannot be sued under SI 337
where no cause of action made out under Veterans Preference Act);
Weigand, supra (tenant could not maintain suit to enjoin eviction under
S13J7, when National Housing Act did not authorize private right of
action); B.F. Goodrich, supra (no suit allov.vd in dist. ct. allo^iiv
violation of ICC.' order wneie Commission had sole discretionary power
to investigate and prosecute violations) Rodger; v. Frito-Lav, lr;c.,
supra (dist. ct. cannot take suit under SI337 vmere no private rignc
of action under Rehabilitation Act).
00197
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- 62 -
E. The Declaratory Judgments Act, 2B U.S.C.
12201 et seq Affords Othrr Basis for
Wisconsin's Suit Against EP>..
Wisconsin finally cites the Declaratory Judgments Act
(DJA) , 26 I'.S.C. 12201 ec seq., as a jurisdictional basis for
suing EPA. However, the DJA is procedural only. Aetna Life
Insurance Co. v. Haworth. 300 U.S. 227, 240 (1937). By enacting
the DJA, Congress aerely enlarged the range of reaedies available
In federal courts, but It did not extend their subject natter
jurisdiction. 6A Moore's Fed. Prac. 157.23 at 57-237 (1979); 10
Wright, Miller, & Cooper, Fed/ Pgac. & Proc; Civil 12766 at 841
(1969). The DJA is expressly United to suits otherwise within
a district court's jurisdiction. 76/ Therefore, a litigant must
first establish subject matter jurisdiction and a cause of action
independently of the DJA, before being entitled to declaratory
relief. 77/ Since Wisconsin has failed to show that the other
statutes it cites provide for subject natter Jurisdiction and a
cause of action against EPA, the DJA will not save this case.
The DJA cannot be used to obtain judicial review of
federal agency officials' actions that are otherwise unreviewable
in a district court, Duba v. Schuelzle, 303 F.2d 570 (8th Cir.
1962), 78/ such as decisions Involving the exercise of prosecutorial
76/ 28 U.S.C. 12201; provides, in relevant part, that:
In a case of actual controversy within its
urlsdictlon. . . . any court of the United
tates, upon the filing of an appropriate
pleading, may declare the rights and other
legal relations of any Interested party
seeking such declaration. . . ." (ercphasis
supplied).
77/ E.R., Skelley Oil Co. v. Phillips Petroleum Co., 339 U.S. 607.
671-2 TTTSCjTToiberC v. Baptist. 594 F.ld 4^1" (5 ch Cir. 197'j;;
Cook v. Arentren, 56TT723 870, 876 (4ch Cir. 1978).
7B/ Accord. Rhodes v. Onitod States. 574 F.2d 1179 (5th Cir. 1973);
Branbletc v. Dorsey. 4?0 F.2d 405 (6th Cir. 1974); Murray
v. Kleppc. 424 F.Supp. l08 (M;D. Pa. 1977); 10 Wright, ftiiler &
Cooper, supra, at J2763, p. 829 and S2766, p. 843.
00198
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- O j -
discretion to decline institution of enforcement suits. Maver v.
Qrdham, 391 F.2d 689 (6th Cir. 1968); Kentucky ex rel. Hancock v.
Ruckleshaus. 362 F.Supp. 360. 368 (W.D. K>.), aff'd. 497 F.2d
1172 (6ch Cir. 19"JA> (EPA Case). Nor can the Wa be used where
the doctrines of exhaustion of adminlserative renedies or riprnass
preclude a district court bction. 10 Wright, Miller 6 Cooper,
supra. at 12763. p. 830. Several of Wisconsin's claims are
premature, and Wisconsin has otherwise failed to show subject
natter jurisdiction or a cause of action to support any of its
claims, against EPA. The DJA does not provide a means for filling
that gap.
The Administrator, EPA Cannot Otherwi^
.&e Joined As a Necessary Party to
\isconsin's Suit. ,,
It has>een demonstrated that Wiscopfin has neither
established subject-batter jurisdiction ovyt, nor stated a claira
for relief against the Administrator, Once the Court reaches
that determination, EPA's motion to d/sr^iss should be granted,
notwithstanding Wisconsin's b^d allegation that the Agency is a
necessary party to the suit. C^(plaint, *7. Any suggestion
by Wisconsin that-, absent a sKowin^of subject matter jurisdiction
and a valid claim for relish against^PA, the Adainistrator could
still be made a party would be wrong fo\ several reasons.
First, sucly/an attempt to hold ^PA in the case is
barred by sovereig^.immunity. The United Spates is "immune fron
suit, save as iy'consents to.be sued." United States v. Testag,
424 U.S. 392,/^99 (1976). The benefit of that NJaraunity extends,
of course, /Lo federal agency officials, such as fcfie Adainistrator,
EPA. Seqr, e.g-i Brovr. v. GSA, 425 U.S. 820, 827 (\^76) ; Dupan v.
Rank, ?pi U.S. 609, 610 (1963). Sovereign immunity \ill apply
here Jto bar continuing the Administrator, EPA as a par\y, because
Congress has not otherwise enacted a statute consenting \o suits
against EPA. That is, given that the statutes Wisconsin h\s
$0199
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- 2 -
days and because EPA believes that enforcemjjLfc^cfEhe 90-day dead-
lint will ham the public intjejjMr:—For chase reasons, as explained
In detail below, j-*«tay pending appeal of the January 29, 13B2,
order is^aifogether appropriate and necessary.
The requirements for obtaining a stay pending appeal are
spelled out in Virginia Petroleun Jobbers v. FPC, 259 F.2d 921, 925
(D.C. Cir. 1958); and Washington Metropolitan Area, etc. v. Holiday
Tours. 559 F.2d 841, 843-845 (D.C. Cir. 1977). Under Virginia
Petroleum Jobbers four criteria must be considered: (1) whether
the appellant has made a strong showing that it Is likely to preyail
on the merits of appeal; (2) whether the appellant has shown irrepar-
able injury if the stay is not granted; (3) whether a stay will sub-
stantially harm other parties to the litigation; and (4) where the
public interest lies. In-Holiday Tours, the Court of Appeals refined
the traditional criteria for a stay, declaring:
Generally, such relief is preventative,
or protective; it seeks to maintain the
status quo pending a final determination
of the merits of the suit. An order main-
taining the status quo is appropriate when
a serious legal question is presented, when
little if any harm will befall other inter-
ested persons or the public and where de-
nial of the order would inflict irreparable
injury on the movant. There is substantial
equity and need for judicial protection,
whether or not movant has shown a mathe-
matical probability of success.
Holiday Tours, supra, 559 F.2d at 844. Here, each of those criteria
are fully satisfied, thereby entitling the Administrator of EPA to
a stay pending appeal.
ARGUMENT
1
.STANDARD FOR GRANTING A STAY
00200
-------
IV. EPA'S RULEMAKING WAS PROCEDURALLY VALID
A. Standard for Review of EPA's Procedures
The Supreme Court has held that a reviewing court
may not hold an agency to more than the minimum requirements
clearly established by statute/ with due regard for constitu-
tional rights of parties, and may not impose on the agency
its own beliefs as to which procedural requirements are
"best." Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, 435 U.S. 519, 541-5419 (1980);
accord, Sierra Club v. Costle, 657 F.2d 298, 391-392 (D.C.
Cir. 1981).
In this case, this Court's review of procedural
issues is also limited by the spec.ial provisions of the
Clean Air Act. The Court may reverse EPA for procedural
error only if (1) the Agency's failure to observe a procedural
requirement was arbitrary or capricious; (2) an:objection
was raised during the comment period, or the grounds for the
objection arose only after the comment period and the objection
is "of central relevance to the outcome of the rule"; and
(3) "the errors were so serious and related to matters of
such central relevance to the rule that there i3 a substantial
likelihood that the rule would have been significantly changed
if such errors had not been made." Section 307(,d) (8), (d)(9)(D);
Sierra Club v. Costle, supra, 657 F.2d at 391; American
Petroleum Institute v. Costle, 665 F.2d 1176, 1187 (D.C. Cir.
1981), cert, denied, 102 S.Ct. 1737 (1982).
Petitioners accordingly must sustain a heavy
burden if the Court is to reverse EPA on procedural grounds:
00201
-------
-58-
The essential message of so rigorous a standard
is that Congress was concerned that EPA's
rulemaking not be casually overturned for
procedural reasons, and we of course must
respect that judgment. [Sierra Club v. Costle,
supra, 657 F.2d at 391.]
This section will demonstrate how far petitioners are from
meeting that test.
B. Ample Notice and Opportunity For Comment
Were Given
Both SRTF and Plateau argue that EPA failed to
give adequate notice of certain provisions of the final
rules. SRTF Br. at 59-64; Plateau Br. at 9-18. These claims
are totally without merit.
SRTF and Plateau both claim that EPA did not
give adequate notice that an interim standard of 1.90 gpg
would be established. 74/ SRTF Br. at 62; Plateau Br.
at 13-16. However, the interim standard was clearly within
the range of alternative standards being considered by EPA
in the August 27 proposal and was a "logical outgrowth" of
74/ Plateau repeatedly claims that EPA had "assured" small
refineries of a more lenient permanent standard than
large refineries and "adequate lead time" to comply with any
new standards. Plateau Br. at 8, 13, 14, 16 and 23. Plateau
has apparently been engaged in a long course of wishful think
ing. EPA's earlier proposals to relax the. prior standard or
establish a more lenient permanent standard were certainly
not, and legally could not be, "assurances" of final action.
See BASF Wyandotte Corp. v. Costle, supra, 598 F.2d at 643
(industry petitioners "cannot now complain because they mis-
read the regulatory waters, incorrently anticipated how EPA
would react to . . . [their comments], and consequently left
some things unsaid"). Moreover, EPA has clearly taken lead-
time requirements "into account" throughout this rulemaking,
see 47 Fed. Reg. 7814, J.A. , and, in fact, the final
rules give small refineries an additional eight months lead-
time to prepare to meet the uniform standard. 47 Fed. Reg.
49324; J.A.
00202
-------
-59-
that proposal. See Pnited Steelworkers of America v. Marshall,
647 F.2d 1189# 1221 (D.C. Cir. 1980) cert, denied, 453 U.S. 913
(1981); South Terminal Cor?, v. EPA, 504 F.2d 646, 659 '.1st
Cir. 1974).
In the August 27 proposal, EPA expressly suggested
that, the 2»5Q gpg standard might "overcorapensate" small refiner-
ies for the economic impact of lead regulation and invited com-
ment on whether a more stringent standard "such as" 2.15 gpg 75/
would be more appropriate. 47 Fed. Reg. 3808 2; J.A. . 76/
Moreover, EPA also raised the issue whether any special standard
for small refineries was appropriate at all by asking whether
any such standard should have a'definite time limit. Id. at
38085, J.A. ; written statement of Kathleen Bennett,
September 7, 1982 hearing, at 3, J.A. . This clearly showed
that EPA was still considering Lmpositior. of a single unifom
standard. 77/ The Agency's continued consideration of a uniform
75/ Twice, SRTF incorrectly states or suggests that EPA requested
comments on whether a'standard "as low as" 2.15 gpg would be
appropriate. SRTF Br. at 32 n.24, 62.
76/ Assistant Administrator Kathleen Bennett also invited com-
ments on the same subject at the beginning of hearings on
the proposal held on September 7, 1982. Written statement at 3;
<7. A . ^•
77/ Contrary'to Plateau'3 statement (Br. at'15)# the February'22,
198 2a proposal, which expressly requested comments on the
issue of a uniform standard for all refineries at various levels,
levels, 47 Fed. Reg,. 7813, J.A. , was not withdrawn on August 27,
1982. See 47 Fed. Reg. 38079 (col. 1)? J.A. . The withdrawal
notice of August 27, 19"82, only withdrew the portion of the
February 22 proposal that suggested relaxation or rescission of
the 0.5 gpg- pooled standard.. 47 Fed. Reg. 38078 (col. 1); J.A. .
This notice# and the August 27 .notice that EJ\ was considering a
time limit on any special small refinery pro* tsion, lay to rest
Plateau's claim that it had no notice of the possibility that
small refineries might ultimately be subject to a uniform standard
of 1.10 gpg. Plateau Br. at 15.
00203
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-60-
standard was confirmed by EPA's "Initial Regulatory Flexibility
Analysis," J.A. , which accompanied the August 27 proposal
and on which EPA specifically requested comments. 47 Fed. Reg.
38087; J.A. . That analysis (at 3-4) specifically examined
three alternative uniform standards for all refineries, includ-
ing a proposal for a 1.2 gpg leaded standard.
The deluge of comments received by EPA on this subject
confirms the adequacy of this notice. See 47 Fed. Reg. 493 23,
J.A. ? Supplemental Response at III-6 through 7, J.A. ;
ESI Summary at 25, 33-34, J.A. . 78/ Most of these comments
suggested that small refinery standards be set much lower than
2.50 gpg, and many suggested that all refineries be held to a
uniform standard of 1.10 gpg. See pp. 47-49, supra. SRTF was
among the commenters and addressed the appropriateness of a
2.15 gpg standard for small refineries. Comments of SRTF,
October 8, 1982 at 11-12; J.A. . 79/
Thus, it is clear that the 1.90 gpg interim standard
was well within the range of alternatives under consideration
78/ Even Piatt's Oil Bulletin of September 7, 1982, J.A. ,
took note that EPA was considering a final standard lower
than 2.50 gpg.
79/ Several members of SRTF also commented individually on
the specific issues of the level and duration of the
small refinery standard. Indiana Farm Bureau Cooperative,
October 5, 1982, J.A. ; Marion Corporation,;October 4, 1982,
at 6, J.A. • (considered several possible uniform standards,
including 1.10, and noted refiners must assume the most strin-
gent standard [i.e., 1.10 gpgj will be adopted and prepare for
this possibility . . Evangeline Refining, October 8, 1982,
J.A. Claiborne Gasoline Company, October 5, 1982, J.A. ;
South Hampton Refining, J A. ? Hill Petroleum, October 7,
1982/ J.A. .
00204
-------
-61-
by EPA and was a "logical outgrowth" of these proceedings.
United Steelworkers of America v. Marshall, supra, 647 F. 2d
at 1221-1222. 80/ See International Harvester1 Co. v.
Ruckelshaus, supra, 478 F.2d at 632 n»51.
'Both Plateau and SRTF also claim that EPA did^rfot
give adequate notice that new small refinery standards might
take effect on ?hjvember 1. Plateau Br. at 15-JiT; SRTF Br.
at 62-63. This is X strange claim by SRTF^since it specifi-
cally commented on theN^ossibility of /wi immediate effective
date on two occasions, by ^equestipg an additional 60 days
for implementation. Written (testimony of SRTF at September 8,
1982, hearing .at 4, J".A. ; comment of SRTF, October 8,
1982, at 18, J.A. See n.103, infra. 81/ Many other
commenters addressed this issue specifically, most urging
a November 1^1982, effective date. See Supplemental
Response at XIV-l through 2, J.A. ; ESI Summary at 98-99,
J.A". . In fact, the August 27 suspension notice cliaarly
implied that EPA was considering an effective date of aboQt
80/ In that case this Court found that the Occupational
Safety and Health Administration had given adequate
notice of a rule establishing a permissible exposure limit
for lead even though the final rule was twice as!stringent .
as the proposal. 647 F.2d at 1221-1222.
81/—Two-^ngmb^rs of SRTF, also commented specif this
issueT~^Ma-ri.on Corporation (request ir.gaj3_-atfQTtional 60
days for implementaTtoivLfujComment of 0g£®b€r4, 1981, at 6,
J.A. j and South Hampton*^£^r?iag*^Turging that: "the new
regulaf' ons which become effective--November 1st be final and
permane t . ._iJ!J_*_jiUr4rtirenstatement olT^--£ana, 'South Hampton
Re,£lning7~Beptember 8, 1982, at 1, J.A.
00205
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(£) >r Li i
ARGUMENT
I. MANDAMUS DOES NOT LIE TO COMPEL EPA ACTION ON COASTAL'S
RENEWAL PERMIT APPLICATION
A. This Court Lacks Jurisdiction Under the Mandamus
Statute
Under 28 U.S.C. 1361, as amended in 1962 by SI of the
Mandamus and Venue Act of 1962, Pub. L. 87-748, 76 Stat. 744,
federal district courts:
. . . have original jurisdiction of any action
In the nature of mandamus to conpel an officer
or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.
The existence of jurisdiction under 28 U.S.C. 1361
necessarily depends on whether some other federal statute imposes
the asserted duty. If EPA has no statutory dutyto issue Coastal a
permit, this Court lacks mandamus jurisdiction. Einhorn v.
DeWitt, 618 F. 2d 347, 349 (5th Cir. 19,80) (court lacked mandamus
jurisdiction to compel IRS to release investigatory information,
since release discretionary). See also Vishnevsky v. United
States. 581 F. 2d 1249, 1253 n. 4 (7th Cir. 1978) ("... IT] he
existence of S1361 jurisdiction is unavoidably bound up with the
merits.").
In this case, it is plain that EPA has no duty to issue
Coastal a permit. Thus, Coastal's mandamus claim fails, and with
it, any jurisdiction under 28 U.S.C. 1361. As stated by Mr. Chief
Justice Taft in Work v. United States ex rel. Rives, 267 U.S. 175,
177 (1925):
• • * Mandamus issues to compel an officer to
perform a purely ministerial duty. It car not
be used to compel or control a duty in the dis-
charge of which by law he is given discretion.
00206
-------
This Circuit has strictly followed the.rule that mandamus
nay not be used to compel performance.of discretionary actions.
Thus, for example, mandamus did not lie to review the Secretary of
HEW's refusal to reopen Social Security benefits proceedings
because "the Secretary's refusal to reopen was a matter of
discretion rather than a ministerial act." Ortego v. Weinberger.
516 F.2d 1005, 1011 (5th Cir. 1975). And in Bass Angler
Sportsman Society v. United States Steel Corp., 324 F.Supp. 412,
416 (M.D. Ala. 1971), aff'd 447 F.d 1304 (5th Cir. 1971), the
court held that mandamus could not issue directing the Secretary
of the Army to establish and apply standards for issuing Refuse
Act permits (the predecessor of NPDES permits, see .33 U.S.C.
1342(a)(4)), because the establishing of such a permit program is
•discretionary * * * as opposed to mandatory." See also Einhorn
v. DeWitt, supra.
The Clean Water Act gives the Administrator discretion^as^^" *
^^whether or not to issue an NPDES permit. The Clean Water Act "
states that the Administrator "may, after opportunity for public
hearing, issue a permit * * * upon condition that such discharge
will meet [applicable requirements under the Act)." Section
402(a)(1), 33 U.S.C. 1342(a)(1) (emphasis added). Thus, although
a permit may not issue unless certain preconditions are met, the
Administrator is not required to issue a permit if these condi-
tions are met. The use of the term "may" plainly denotes discre-
tion^/ and shows that EPA has no affirmative duty to issue an
(jO 4iSC.n«'Vf OmnJa.rtHC !j
NPDES permit. As the D.C. Circuit has stateai '¦*
• * * "The law must not only authorize the
demanded action, but require it; the duty must
be clear and indisputable".
[National Treasury Employees Union v. Nixon, 4 82
F.2d 587, 602 (1974), quoting United States ex rel.
McLennan v. Wilbur, 283 U.S. 414, 420 (1931),.)
_/ Committee for Consideration of Jones Fall Sewage System v.
Train, 387 F.Supp. 526, 529-530 (D. Hd. 1975); aff'd, 539F.2d
1006 (4th Cir.. 1976) ($504, CWA authority that EPA "may" commerce
suit clearly discretionary); Montgomery Environmental Coalition v.
Fri, 366 F.Supp. 261 (D.D.C. 1973)(CWA case). See Kentucky ex
rel. Hancock v. Ruckleshaus, 497 F.2d 1172, 1177 <6th Cir. 1974,
aff'd, 426 U.S. 167 (1975) (Clean Air Act: use of "may" is
discretionary); Corace v. Butterfield, 387 F.Supp. 446, 44B (E.D.
N.Y. 1975) (FAA "may" issue rules under Noise Control Act; held
discretionary authority).
00207
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(9
Thus, In Mollohan v. Gray, 314 F.2d 349, 352 (9th Cir.
1969), the court distinguished between "mandatory* and
"permissive" permit issuance statutues. "Mandatory* statutues
compel an agency to issue a permit if statutory prerequisites are
met; "permissive" ones leave the agency discretion to issue or
deny a permit* Because it concluded that Taylor Act grazing
permits were "permissive", the court held mandamus would not lie
to compel "the Secretary to issue, renew, or not cancel grazing
permits * * * ". See also Bergen County Utilities Authority v.
EPA, 507 P.Supp. 780, 785 (D.W.J. 1981) ("The EPA has no clearly
prescribed duty to issue BCUA an ocean dumping permit.* Thus,
mandamus not available.). By the same reasoning, mandamus cannot
lie to compel issuance of an NPDES permit.
B.Coastal has not met the tests for mandamus to issue
Even if this Court should find that it has jurisdiction
under 28 U.S.C. 1361, it should nevertheless deny Coastal's
application for the writ. The Fifth Circuit has established a
threefold test for the issuance of a writ of mandamus:
(1) the plaintiff must have clear right to the
relie 2) the defendant must have f clear vf
duty to act, and (3) no other adequate remedy
must be available. [In re Sessions, 672 F.2d
564, 566 (5th Cir. 1982), quoting Sheehan v.
Army and Air Force Exchange Service, 619 F.2d
1132, 1141 (5th Cir. 1980). /
_/ In re Sessions involved an application for writ of mandamus to
a district court, Sheehan a writ to a federal agency. The stand-
ards are the same.
00208
-------
©
On the facts, Coastal fails to meet these minimum
requirements. As we have shswn above, Coastal fails the first two.
tests because of the discretionary nature of the Administrator'a
issuance of NPDJ5S permits. If issuance of permits is discretion-
ary, there is neither a "clear duty to act'r nor "a clear right to
the relief.* See City of Seabroolc w. Costle, £59 F,2d 1J71, 1375.
n. 4- (5th Cir. 1975} (mandamus denied because "Our discussion
concerning the EPA's discretion under the statute demonstrates
that the EPA has no clear duty to act,*) Furthermore, Coastal has
no,clear right to relief because of its failure to adequately
present its cause to the Agency and request relief there.
Coastal's 1979 NPPES permit renewal application did not contain
any request for less stringent limitations. The only reference to
an adjuBtneivt of effluent limitations related solely to the
increased pollutants expected from a planned plant expansion which
has r.ever been undertaken._/ Because Coastal failed to request
less stringent limits, EPA had no reason to believe that ar.y delay
in per-it reissuance could work a hardship on Coastal.
Mandamus is plainly inappropriate where the party seeking
the writ has nade no attempt to present its claim to th*
responsible administrative agency for relief. Thus, in denying a
writ of ff.andamus in an enploymeht discrimination case, Beale v.
Blount,"^ -4S1 F,2d 1.133, 1139 (5th Cir. 1972) the court said. "We ^
1 V
adhere to the time tested requirement that available administra-
tive remedies be exhausted prior to the institution of a mandamus
action". Likewise, in a decision denying a writ of mandamus under
the Medicare Act, the Fourth Circuit said:
* * * it is difficult to imagine how the
Secretary cc.il.-d te*e failed to perform a acty
owed [the plaintiifj — i.e., granting them a
"final decision* on their claims — when they
have not given him the opportunity to do so by
availing themselves of the administrative pro-
cess. [Hopewll Hursinc Bora-e, Inc. v. Scftveiker,
6€6 F.2d"l47^TTTt5^iTrT55TnT
_J Coastal cannot argue that tsy merely sending EPA information
copies of its State permit applications it was requesting EPA to
talce action to relax its pectr.it limits. Even if the applications
were in fact received by EPA re than requests for action by the State — not EPA. If
anything, that Coastal asked the State for. permit limits based on
guidelines but did-not address that request to EPA suggests
Coastal acquiesced In EPA's anti-backsliding rule, issued five
00209
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Finally, Coastal fails the third test — there is
another "adequate remedy" which it could pursue. Coastal asserts
jurisdiction under Section 505 of the Clean Water Act, the
"citizen suit" provision. 33 U.S.C. 1365. Complaint at 2, para.
3. If such jurisdiction exists, it can exist only because CPA has
under the Clean Water Act a "duty * * * which is not discretionary
with the Administrator" to issue an NPDES permit. We have shown
why no such duty exists, but if it does, Coastal must proceed
under 33 U.S.C. 1365. Mandamus is an extraordinary, equitable
writ, and is not available if the plaintiff has another adequate
remedy provided by statutes._/
Thus, in City of Highland Park v. Train, 519 F.2d 661,
691-92 (7th Cir. 1975), the court held that mandamus would not' be
available if a citizen suit under the Clean Air Act could be
I '
brought to compel the performance of the same action. The
existence of the citizen suit was another "adequate remedy"
precluding mandamus, even if the plaintiff had failed to give the
required notice and thus could not maintain a citizen suit. £d.
at 692. See infra at . See also City of. Seabrook v. Costle
supra, 659 F.2d at 1371,1375 n. 4 (no mandamus lies to compel EPA
enforcement because plaintiffs have alternative remedy in citizen
suit against violator).
/ Helstoski v. Meanor, 442 U.S. 500, 505 (1979); Kerr v. United
States District Court, 426 U.S. 394, 403 (1976).
00210
-------
II. THE "CITIZEN SUIT* PROVISIONS OF THE CLEAN WATER ACT DOES
HOT PROVIDE JURISDICTION OR A CLAIM FOR RELIEF AGAINST EPA
Coastal Invokes jurisdiction under the "citizen civil action"
provision of $505 of the CWA, 33 U.S.C. 1365. This provision
allows for two general categories of suits. Section 505(a)^(l),
33 U.S.C. 1365(a)(1), permits suits against regulated facilities
alleged to be violating substantive pollution control standards.,
and is plainly inapplicable here. Section 505(a)(2), 33 U.S.C.
5
1365(a)(2), permits sui^against the Administrator of EPA, when
the Administrator is alleged to have failed to perform a
nondiscretionary duty imposed by the CWA. This Court lacks
jurisdiction under Section 505(a)(2), because Coastal failed to
give the notice required by the statute, and because no nondiscre-
tionary duty of the Administrator is involved.
A. Coastal failed to give notice as required by the Statute
Section 505(b) provides in relevant part:
(b) No action may be commenced
* * •
(2) under subsection (a)(2) of this section
[alleged failure to perform nondiscretionary
duty] prior to sixty days after, the plaint ifE
has given notice of such action1 to the Admini-
strator.
Discussing Section 505, the Supreme Court in Middlesex County
Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1 1!01
S. Ct. 2615 (1981), noted that Section 505 "allows suits under 'the
Act by private citi2ens, but • • * the citizen plaintiffs first
must give noticeto the EPA * * *.* Following Sea Clammers, lower
courts have concluded that no citizen suit may be filed until the
required notice has been given. Webb v. Gorsuch,Civ. No. 62-2163
(S.D.W. Va. July 29, 1982), slip op. at 4 (Exhibit _); Wisconsin
v. Metropolitan Council, Civ. No. 4-81-716 (D. Minn. April 23,
1982), slip op., at 7 (Exhibit _). Coastal's complaint does not
allege that the required notice was given. Thus, the complaint
must be dismissed.
0021 1
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- 34 -
mentioned, there is no mention of two million ,4'ams being consider
as point sources. Clearly, if Congress intended to subject over
Billion dams and similar facilities tcf NPDES permit controls in a
tion to the nonpoint source controls contemplated in Sections 208
and 304, it would have indicted that Intent. We take this silerv
to mean that Congress did not intend this result, but intended fot
dam-induced water j^tiality changes to be treated as nonpoint source
pollution und>t* Sections 208 and 304.
In short, the district court erred in concluding that th
dam-j^jrauced water quality changes at issue here could be both poin
anfl nonpoint source pollution.
in ^ ^3
EPA'S CONSISTENT AND REASONABLE ADMINISTRATIVE
INTERPRETATION THAT THE DAM-INDUCED WATER QUALITY
CHANGES AT ISSUE HERE INVOLVE NONPOINT SOURCE
POLLUTION IS ENTITLED TO GREAT DEFERENCE
It is well settled that wtconstruction of a statute by
those charged with its execution should be followed unless there
are'compelling indications that it is wrong * • E.I. du Pont
de Nemours & Co. v. Collins. 432 U.S. 46, 54-55 (1977), quoting Red
Lion Broadcasting Co. v. FCC. 395 U.S. 367, 3B1 (1969). See also
EPA v. National Crushed Stone As3'n.t 449 U.S. 64, 83 (1980).,
Such deference is particularly appropriate here, because Congress
vested EPA with the "power to define point and nonpoint source."
NRDC v. Costle (Feedlots case), supra, 568 F.2d at.1382, quoting
NHDC v. Train. 369 F. Supp. 1393, 1396 (D. D.C. 1975). As Senator
Muskie said in the Senate debates:
Guidance with respect to the identifi-
cation of "point sources" and "nonpoint
00212
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- 16 -
ARGUMENT
PLAINTIFF HAS NOT DEMONSTRATED THAT IT IS
ENTITLED TO A PRELIMINARY INJUNCTION
It is well settled In this Circuit thajt a litigant
seeking a preliminary injuction carries a heavy burden. The
moving party is required to show:
(1) a reasonable probability of eventual success in the
litigation and (2) that the movant will be irreparably
injured pendent lite if relief is not granted, (citations
omitted). Moreover, while the burden rests upon the moving
party to make these two requisite showings, the district
court should take into account, when they are relevant,
(3) the possibility of harm to other interested persons
from the grant or denial of the injunction, ^nd (4) the
public interest. (Citation omitted) (quoting Delaware
River Port Authority v. Transamerican Trailer
Transportation, Inc., 501 F. 2d 917, 920 (3d Cir. 197 ^.
Constructors Association of Western Pennsylvania v. Kreps
543 F. 2d 811, 815 (3d Clr. 1979). Accord Eli Lily and Co. v.
Preroo Pharmaceutical Laboratoriest Inc. 630 F.d 120 (3d Cir.
1980); A.O. Smith Corp. v. Federal Trade Commission, 530 F.2d
515 (3d Cir. 1976); Commonwealth of Pennsylvania v. D.S.
Department of Agriculture, 169 F.2d 1387, 1388 (3d Cir. 1972).
The Third Circuit has stated that "no one aspect" of
these factors will necessarily determine the outcome of a
motion for preliminary injunction, rather, "proper Judgment
entails a "delicate balancing" of all elements (footnote
omitted)." Constructors Association, 573 F.2d at 615.
Further, each of the four factors does not carry equal weight.
00213
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- 17 -
"A preliminary injunction is extraordinary relief ....
It is particularly important that a movant show irreparable
injury." Diamond Shamrock Corp. v. Edwards, 510 F. Supp.
1376, 1385-86 (D. Del. 1981). The EFA defendants submit
that plaintiff cannot sustain its burden with regard to any
of the factors necessary for a preliminary injunction.
Plaintiff (also referred to as Alcosan) has shown neither
irreparable injury, nor likelihood of success on the merits
with respect to its claims against the Federal defendants.
Moreover, strong countervailing public interest considerations
exist, which pursuant to Contractors Association, must be
weighed in the the "delicate balancing" of the parties'
interests.
I. ALCOSAN HAS NOT DEMONSTRATED THAT IT WILL^StJCCEED ON
YHE MERITS OF ITS CLAIMS AGAINST THE FEDlSRAL DEFENDANTS.
The &&aiplaint filed by Alcosan j*5ntains two counts
against Federal defencteqts. Count ^Tlleges that Federal
defendants failed to perform'^aKjrindatory duty to disapprove
Pennsylvania's priority system and^pcoject priority list as
not in compliance wi.ttf' Federal statutory\^nd regulatory
requirements. Complaint Para. 200-205. Couht XI alleges
that EPA a^ted arbitrarily and capriciously when approved
Pennsylvania's FY 1983 project priority list. Complaints
Para. 206-211. For the reasons set forth below, Federal
00214
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- 23 -
^ t-r
As discussed herein at the Federal
mandamus statute cr£a£es~~&o right of action, and thus cannot
be rslietTupon to confer Jurisdiction.
Plaintiff also states that this action is brought under
the Declaratory Judgment Act* 28 U.S.C. 2201. But the Declaratory
Judgment Act provides no substantive rights and cannot serve as
a basis for Jurisdiction to review EPA's action. It is a well
established principle that the Declaratory Judgment Act does
not create any Jurisdiction for the Federal courts, but merely
provides a remedy where Jurisdiction already exists to review
an action. Skelly Oil Company v. Phillips Petroleum Company,
339 U.S. 667, 671 (1950); Jersey Central Power 4 Light Co. v.
Local Unions 327, 508 F.2d 349, 356 (3rd Cir. 1972), cert,
denied, 409 U.S. 1125 (1973); Jackson v. Armstrong School
Dlst. , 430 F. Supp. 1050, 1051 (W.D. Pa. 1977); Murray v.
Kleppe, 424 F. Supp. 108 109 (M.D. Pa. 1977); Johnson v. County
of Chester, 413^F. Supp. 1299, 1306 (E.D. Pa. 1976).
Nor does the Fourteenth Amendment to the Constitution i
or the Civil Rights Act of 1871, 42 U.S.C. 1983, provide a
i
basis for relief against the Federal government. The Fourteenth
Amendment on its face deals only with actions by a State,
and not with those of the Federal government. This amendment
therefore may not serve as a basis for Jurisidiction over the
Federal defendants here, acting under Federal law. Similarly,
42 U.S.C. 1983 only deals with the actions of individuals
33215
-------
- 24 -
acting under color of state law, and therefore does not give
rise to a subtantive cause of action against Federal officials,
such as the Federal defendants here. Bethea v. Reld, 445 F.2d
1163, 1164 (3rd Cir. 1971); cert, denied. 404 U.S. 1061;
United States ex rel. Moore v. Koelzer, 457 F.2d 892, 893
(3rd Cir. 1972); Phillips v. Trello, 502 F.2d 1000, 1004 (3rd
Cir. 1974); Anthony Amorose v. United States, et al.. Opinion
at 5-6 (Civil No. 82-0438, W.D. Pa., Nov. 19, 1982).
Federal defendants recognize this Court has jurisdiction
to hear both claims of denial of due process and equal protection
under the Fifth Amendment to the U.S. Constitution. Vance v.
Bradley, 440 U.S. 93» 95 n. (1979). However, Alcosan has
failed to put forth any such claims against Federal defendants.
Plaintiff has not challenged any EPA regulations as failing to
provide due process or equal protection nor does plaintiff
allege that any Federal defendant has, by any action, deprived
Alcosan of due procees or equal protection. Therefore Alcosan
has no claim "arising under" the Fifth Amendment as necessary
for invoking Federal question jurisdiction under 28 U.S.C. 1331.
The only, conceivable federal question plaintiff has
is its contention that Pennsylvania was required by the May 12,
1982 regulations to revise its priority system following public
hearing and comment and that EPA acted improperly when it did not
require the same. However, as shown at 28, infra, there is no
merit to this contention.
n 216
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