579 F.2d 846 | 4th Cir. | 1978
Lead Opinion
Following our decision in Appalachian Power Co. v. Environmental Pro. Agcy. (4th Cir. 1973) 477 F.2d 495, in which the factual background of this proceeding is set forth, the parties agreed upon a remand order providing for reconsideration by the respondent Environmental Protection Agency
The petitioners submitted their particularized objections to the state plan as required under the agreed remand. These objections were directed at Regulations II and X of the state plan and related basically to the emission limits for particulates and sulphur dioxide. They were grounded largely on the claims either that the requirements were “unduly restrictive”
The proposed findings of the Administrator on the petitioners’ objections were published on March 4, 1976 and notice of the availability of the supporting technical data was noticed on May 13, 1976, triggering the sixty-day public comment period which was to follow. These findings related both to the economic and technological feasibility and to the alleged over-stringency of the state plan. However, on June 25,1976, and after the proposed findings had been published, Union Electric Co. v. EPA, 421 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474, was decided. Contrary to our holding in 477 F.2d 495, the Court in that case held that the EPA, in determining whether to ap
Union Electric clearly barred any objections to approval of the state plan by the EPA on grounds either of greater stringency in the requirements than demanded by the national primary ambient standards or of want of economic or technological feasibility. The EPA accordingly argues that, since the Remand Order, as agreed to by the parties and as approved by this court, limited the petitioners in their objections to the approval of the state plan to the matters specified in their objections as filed pursuant to that remand order, and since such objection related to the two areas found by Union Electric not to be available as grounds for disapproval by the EPA of a state plan, no valid objections by the petitioners to the approval of the state plan remained for disposition by this Court and dismissal of the Petition was in order. This argument would, however, disregard the fact that, first, before approving a state plan, the EPA must determine that the state plan was adopted at the state level “after reasonable notice and public hearings,” as provided for in § 1857c-5(a), 42 U.S.C.
It cannot be maintained — nor do we understand the petitioners to contend — that there was not “reasonable notice and public hearings” prior to the promulgation by the State of the two regulations (II and X) of the state plan, about which the petitioners complain. There were, in fact, three public state hearings relevant to petitioners’ claims, held after public notice. The first of these hearings was classified as a preliminary hearing, directed to a consideration particularly of Regulation II of the proposed state plan. It was held on November 18, 1971. The second preliminary hearing covered particularly Regulation X of the state plan and was held on December 15, 1971. The petitioners participated in both of these hearings. They were specifically advised at each hearing that any interested party might file written comments on the proposed regulations within 30 days after the hearing. This was in accordance with West Virginia law.
It is the position of the petitioners, though, that the hearings were constitutionally flawed and should have been declared invalid by the EPA. They identify broadly three fundamental errors in the hearings, which in their view undermined the validity of the state proceedings. First, they assert that at the November 18 hearing on Regulation II the director of the State Air Pollution Control Commission suggested for the first time the inclusion in the regulation of a stack gas monitoring requirement. Such belated introduction of a fundamental change in the proposed regulation at the hearing itself afforded them, they contend, no reasonable opportunity to comment thereon. This, in their view, voided the hearing. This suggestion of the director, however, was not incorporated in the final plan as adopted by the State Agency and, if there were any error in the proposal of the director, that error was erased and rendered moot by the failure of the State Agency finally to adopt it.
The petitioners raise a similar objection to the proceedings of December 15, 1971. The State director again suggested at this hearing some amendments in the proposed Regulation X. A number of these related simply to a change in effective dates, a change incidentally favorable to the petitioners. The other amendments were more substantive. They dealt with emission standards for fuel burning units and the conditioning of stack gas. The amendment with reference to emission standards was not formally adopted; in fact, the ultimate language of the proposed Regulation was more burdensome on the petitioners than that proposed by the Director.
Next, the petitioners would fault the state proceedings for failure to provide them in advance of the hearings with the necessary information and data on which the proposed plan was predicated, asserting
“Reasonable notice” in advance of public hearings commanded by the statute and the right to comment, however, contemplate that the nature of the proposed action be sufficiently identified and described to permit meaningful comment on the proposed action.
Actually, though, the EPA, contrary to the position of the petitioners, asserts that the petitioners had available to them prior to the final hearing on the state plan ample information to enable them to comment intelligently on the proposed plan; specifically, it claims that the petitioners had available to them before the final state hearing all the data on which the State Agency proposed to act and which they now claim was not then available to them. EPA supports this claim with the affidavit of the Chairman of the State Agency. In this affidavit, the Chairman affirms that such data was made available before the final hearing at convenient points throughout the State of West Virginia and that representatives of utility and business interests did review such data before that final hearing. The petitioners were following all the proceedings before the State Agency closely. They were represented at all the hearings and it is to be assumed they were reviewing with the officials of that agency the various provisions of the state plan, including this supporting data. It is significant that they have filed no counter-affidavits from any of the persons representing them in the state hearings or in conferences with the agency that this data was not available to them.
Moreover, in their attack on the state plan before the EPA in 1974, the petitioners demonstrated quite clearly that they understood the basis and knew the data on which the state plan was formulated and they proceeded, in their statement of objections, to identify the erroneous assumptions and calculations on which they urged the state plan was predicated. It must be assumed that they derived this
The petitioners find, also, a deficiency in the state procedures because of the absence in the final plan of an explanation of “the basis for the requirements in the plan” or of a response “to the comments made by affected persons.” But there is no obligation in rule-making proceedings to make reference in the final action “to all the specific issues raised in comments,” Kennecott Copper Corp. v. Environmental Protection Agcy. (1972), 149 U.S.App.D.C. 231, 235, 462 F.2d 846, 850, Consumers U. Of U. S., Inc. v. Consumer Product Safety Com’n (2d Cir. 1974) 491 F.2d 810, 812, cf. Home Box Office, Inc. v. F. C. C., supra, 567 F.2d at 36, or to make findings of fact in support of the final action taken, so long as the rationale of the agency’s action “ ‘may reasonably be discerned,’ ” Ethyl Corp. v. Environmental Protection Agcy. (1976), 176 U.S.App.D.C. 373, 406, at 445, 541 F.2d 1, 34, at 73, cert. denied 426 U.S. 941, 96 S.Ct. 2662, 2663, 49 L.Ed.2d 394, 406, at 445. No exhaustive statement of reasons for the rule is required; what is required is “a concise general statement of [the regulation’s] basis and purpose.” United States v. Allegheny-Ludlum Steel (1972), 406 U.S. 742, 758, 92 S.Ct. 1941, 1951, 32 L.Ed.2d 453. The State Agency satisfied this requirement in its final plan.
We have proceeded so far on the assumption that the petitioners have standing to by-pass available state remedies and assert these alleged defects in the state hearings either before the EPA or in this Court. This poses a serious question. Admittedly, there was a well-defined procedure provided by state law whereby the petitioners could have raised these alleged procedural defects by instituting a declaratory judgment action in a state court.
In addition to the claims asserted in their original Petition for Review and in their objections filed after the entry of the stipulated remand following our earlier decision, the petitioners have raised two other issues. One of these is addressed to the failure of the EPA to consider and discuss the petitioners’ objections to the state plan’s visible emission (opacity) standard. Passing over whether this is not an objection foreclosed by Union Electric, it manifestly comes too late. The remand order was plain: The petitioners were obligated to state all their substantive objections under the Act to EPA’s approval of the state plan. In so doing, the petitioners did not specify this objection when they identified their objections under the terms of the remand order. It was only after EPA had filed its proposed findings that the petitioners for the first time raised this claim. The EPA refused to consider the claim under these circumstances and its action was clearly justified under the agreed terms of the remand order.
Subsequent to the filing of the Petition for Review in this proceeding, Congress enacted the Energy Supply and Environmental Coordination Act of 1974, (ESECA) Pub.L. 93-319, 88 Stat. 246. Under that Act the EPA is authorized to review state implementation plans such as that involved here and to “notify the [interested] [s]tate if [its] restrictions on fuel-burning stationary sources may be relaxed without interfering with timely attainment and maintenance of national air quality standards.” § 1857c-5(a)(3)(B), 42 U.S.C. (1970 ed., Supp. IV); Union Electric v. EPA, supra, 427 U.S. at 263, n. 10, 96 S.Ct. 2518 [at 2528]. The EPA has reviewed the West Virginia plan under the provisions of that Act and supplied the West Virginia Commission with its findings. It is the petitioners’ contention that the EPA cannot approve the state plan until it has in turn reviewed the plan in the light of and in compliance with the EPA’s report under the Act.
This argument gives to the ESECA report a far greater significance and effect than Congress intended. Such report will not operate to compel an amendment of a state implementation plan nor will it impose any duty on a state to modify in any particular its plan. That is clear under the Act and the point was emphasized in Union Electric, supra, where the Court, in discussing this very statute, said that, “[t]he decision whether to relax restrictions, [in the state plan as a result of the ESECA report], however, is left to the States. The Act shows congressional awareness and approval of the fact that federally approved implementation plans may be stricter than necessary for attainment of national standards.”
To conclude, we find no merit in the petitioners’ motion to remand or to their objections to the motion of EPA to dismiss the petition for review. Accordingly the motion to dismiss is granted.
. In specifying their objections, the petitioners stated that “Regulations II and X of the West Virginia implementation plan are more stringent than necessary for attainment of the standards and are thus contrary to the policy and goals of the Act.”
. In their objections, the petitioners posit that “the West Virginia control strategy reflects a failure to develop emission limitations in accordance with sound scientific procedure formulated to achieve necessary air quality goals” and that the plan’s “unnecessarily stringent, technologically infeasible particulate limits” are invalid under the Act.
. See West Penn Power Co. v. Train (3d Cir. 1976) 538 F.2d 1020.
. See, Indiana & Mich. Elec. Co. v. Environmental Pro. Agcy. (7th Cir. 1975) 509 F.2d 839, 847:
“* * * Prior to the formulation of a state plan, full public hearings are required under Section 110(a), and where a proposed plan has been formulated without public hearings, it may not be approved by the Administrator.”
. § 16-20-5, Code of West Virginia.
. The final regulation need not conform to the form of notice as presented, so long as the changed language does not depart from the “original scheme” of the regulation. South Terminal Corp. v. Environmental Protection Agcy. (1st Cir. 1974) 504 F.2d 646, 658-9.
. In Train v. Natural Resources Def. Council (1975) 421 U.S. 60, 79, 95 S.Ct. 1470, 1482, 43 L.Ed.2d 731, the Court said EPA had “no authority to question the wisdom of a State’s choices of emission limitations if they are part of a plan which satisfies the standards of 110(a)(2) * * *.”
. See our former opinion at pp. 500-1, 477 F.2d; Note, Judicial Review of the Facts in Informal Rulemaking: A Proposed Standard, 84 Yale L. J. 1750, 1751, n. 5 (1975); Hoffman-La Roche, Inc. v. Kleindienst (3d Cir. 1973) 478 F.2d 1, 12-27.
Of course, the proceeding involved in this challenge was before a state agency and was not controlled by the Administrative Procedure Act, 5 U.S.C., § 553. However, petitioners’ challenge rests apparently on due process grounds and the requirements of due process are satisfied if the provisions of the APA are complied with. American Public Gas Ass'n v. Federal Power Com’n, (D.C.Cir. 1977) 567 F.2d 1016, 1067. See, also, Rodgers, Environmental Law, 233-4 (1977):
“* * * Thg Clean Air Act extends no right to an adjudicatory hearing, and most states treat preparation of the plans as involving legislative-type decisions where affected parties may appear and present statements but not participate further through cross-examination and submission of questions, unless a particular need is shown.”
. 410 U.S. at 236, 237, 93 S.Ct. 810 (emphasis added).
. 1857c-5(a), 42 U.S.C.
. See, Union Oil Co. of California v. Federal Power Com’n (9th Cir. 1976) 542 F.2d 1036, 1040 and Indiana & Mich. Elec. Co. v. Environmental Pro. Agcy. (7th Cir. 1975) 509 F.2d 839, 846.
. In National Asphalt Pavement Ass’n v. Train (1976) 176 U.S.App.D.C. 296, 539 F.2d 775, 779, n. 2, the Court said:
“* * * in order to have a ‘meaningful’ opportunity to comment, one must be aware of the information the agency finally decides to rely on in taking agency action.”
. For this position, the petitioners rely on the language in Portland Cement Association v. Ruckelshaus (1973) 158 U.S.App.D.C. 308, 486 F.2d 375 at 393, cert. denied 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399, reh. den. 423 U.S. 1092, 96 S.Ct. 889, 47 L.Ed.2d 104:
“* * * It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, [to a] critical degree, is known only to the agency.”
See, also, Home Box Office, Inc. v. F.C.C. (D.C.Cir. 1977) 567 F.2d 9, 35-6:
“* * * the notice required by the APA, or information subsequently supplied to the public, must disclose in detail the thinking that has animated the form of a proposed rule and the data upon which that rule is based. * * *
******
“* * * an agency proposing informal rule-making has an obligation to make its views known to the public in a concrete and focused form so as to make criticism or formulation of alternatives possible.”
. Schwartz, Administrative Law Cases during 1974, 27 Ad.L.Rev. 113, 126; Sterling Drug, Inc. v. Weinberger (2d Cir. 1974) 503 F.2d 675, 683; North Star Tel. Co. v. Public Uts. Com’n (Alaska 1974) 522 P.2d 711, 714.
. The nearest the petitioners come to any attempt at refutation of the agency Chairman’s affidavit is an affidavit from its expert who stated that in 1974 he was unable to find such data in the files of the State Agency. However, the petitioners must have acquired access at some point to this data or they could not have prepared the objections they filed with the EPA in 1974 and this access should necessarily have been either from the hearings before the State Agency or from the state plan filed with the EPA. The affidavit of the Chairman of the State Agency would include this material in the file submitted in 1972 to the EPA as constituting the record of proceedings before the State Agency. We have no reason to question this statement. Certainly, if the material were not available in advance of the State hearing, we repeat that it would have been a simple matter for the petitioners to have had one of their representatives who followed the proceedings at the state level to contradict the Chairman’s affidavit. In the absence of any such contradiction, we are unwilling to conclude that the statements in the affidavit are false.
. § 1857c-2(a), 42 U.S.C. provides:
“Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State.”
. See, also, Renegotiation Board v. Grumman Aircraft (1975) 421 U.S. 168, 191-2, 95 S.Ct. 1491, 44 L.Ed.2d 57.
. § 29A-4 — 2, West Virginia Code.
. That opacity performance standards are appropriately included in a state implementation plan under the Clean Air Act, see National Asphalt Pavement Ass'n v. Train, supra, 176 U.S.App.D.C. at 308, 539 F.2d at 787.
. 427 U.S. at 263, n. 10, 96 S.Ct. at 2528.
Concurrence Opinion
concurring:
I concur in most of the opinion of the panel and in the result, but in certain respects I respectfully differ with its reasoning.
I
So far as challenges are made to Regulations II and X, I would hold the complaints are moot.
Those parts of Regulations II and X we are asked to review are those which were imposed in January 1972 following hearings in November and December 1971. But a new complete Regulation II was reimposed effective September 1, 1974 which “supersede[d]” the prior regulation. Section 11 of the 1974 regulation is specific on this point. The same action was taken with respect to Regulation X effective July 30, 1973. Section 10 of the 1973 regulation is similarly clear and is phrased in like language. This alone makes the question moot without considering even later action of the Governor of West Virginia with respect to Regulation X.
Because no defect in the imposition of Regulation II (1974) and Regulation X (1973) is called to our attention, the presumption of regularity attending official acts should apply, see FCC v. Schreiber, 381 U.S. 279, 296, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965), with the result that the question is moot because the new regulations have superseded the regulations complained of.
Wagner Electric Corp. v. Volpe, 466 F.2d 1013 (3d Cir. 1972), I do not think is authority not to hold this controversy moot, although it is on point for the proposition that the opportunity to petition for amendment or repeal does not take the place of notice and hearing. In the case before us the regulations complained of have been superseded.
II
I do not agree that we should accept Beard’s affidavit at face value without mentioning the affidavit of one Kramer filed by Appalachian. But taking both affidavits at face value I think shows the discrepancy in information available to Appalachian was not so great as to go to the constitutional heart of the regulations, rather only to the judgment of the West Virginia Commission in imposing regulations claimed to be too severe, a subject precluded from our consideration by Union Electric.
III
I think the complaints made at the 1971 hearings referred to by the panel should be considered to have been made by Appalachian, but, considering such to be the case, I would come to no different result.