The Anaconda Company, a Montana Corporation v. William D. Ruckelshaus, Administrator of the United States Environmental Protection Agency
482 F.2d 1301
10th Cir.
1973
Check Treatment

*1 рeti- prosecutrix’s identification tioners. jury complained instruction clearly prosecutor’s comments questions.” constitutional COMPANY, a Montana

The ANACONDA Plaintiff-Appellee, corporation, RUCKELSHAUS,

William D. Administra tor of the United States Environmental Agency, al., et Defendants- Appellants.

No. 73-1272. Appeals, States Court Circuit., Tenth

Argued July 11, and Submitted 1973. Aug.

Decided

Rehearing Sept. 5, Denied

Henry Bourguignon, Dept, Atty., J. (Wallace Justice Johnsоn, H. Asst. Atty. Gen., Treece, Atty., James L. U. S. Johnson, and Charles W. Asst. S.U. Atty., Denver, Colo.,and James A. Glas- gow Strass, Attys., Dept, and Carl Justice, brief), defendants-ap- on the pellants.

Harry Hart, L. Hobson of Holland & Denver, (Robert Connery Colo. T. ‍‌‌‌‌​​‌​‌​​‌‌​‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​‌‌​‌‍Jackson, Hart, R. Brooke Holland & Denver, brief), Colo., plain- on the tiff-appellee. LEWIS, Judge,

Before Chief DOYLE, McWILIAMS and Judges. Circuit DOYLE, Judge. WILLIAM E. Circuit an action institutеd in the United States Court for Colora- District Copper Anaconda Butte, Montana, seeking injunctive re- against lief of the En- various officials Agency. vironmental Plain- sought promulga- tiff relief controlling tion of a rule emis- Lodge sions of sulfur oxide Deer Montana Amendments 1970. The County, until de- Montana unless held a adjudica- Board Health fеndants-appellants State conduct proposed imple- Montana’s tory until unless and plan. mulgates mentation state- presented granted on the state’s re- and proposed views district ment. The restricting sul- opinion quested relief in an extensive *3 Following F.Supp. this reported 697 fur oxide emissions. at 352 which is hearing, EPA Montana (D.Colo.1972). submitted to provi- implementation plan, an Septem- was instituted here The suit of emis- sion for control sulfur oxide 26, The heard tes- ber timony trial court plan then omitted. The sions was state injunction re- preliminary on May 31, disapproved by on was the EPA completion days quest at the for three the sulfur 1972 insofar as excluded declaratory judg- which the mentioned provisions. Following oxide emissions injunctive were issued. relief ment of the this action the administrator partial jurisdiction, the basis for As a regu- July 1972, proposed on a 1857h-2 invoked 42 U.S.C. § trial court authorizing lation to control the sulfur emission to enforce the citizen suits County. proposal within This oxide The trial court аlso considered Act. dis- would have limited to a emissions plaintiff’s con- in case one which the charge pounds 7,040 oxides of sulfur rights jeopardy and were in stitutional gave time, per EPA hour. At the same emergency relief was reasoned hearings public notice of to hold intent ground. justifiable on this days proposal on after its date 30 on a reg- presented questions provision this of the The to the issuance. patterned first, appeal the Envi- on whether to ulation is said have file Agency Protection limita- ronmental sulfur oxide emissions after the be- in an environmental statement tion which had been the state’s regu- promulgates proposes pоsal or was deleted. fore it part implementation lation as state immediately demanded Anaconda plan 110(c) Air the Clean under § hearing proposed on EPA’s Second, Act Amendments regulation, reply that the was but EPA’s whether the Environmental legislative hearings public to be were obligated Agency grant to Anacon- adjudicatory. or informational adjudicatory hearing da explained Subsequently, it was further right subpoena and cross-examine hearing be conducted that the would not promulgating before or indeed witnesses any Instead, in the nature trial. hearings holding proposed its further persons corporations could interested or 110(c) Clean under of the testi- and all relevant make statement Air Act as- The crucial Amendments. mony Also, the hear- would be received. validity pect case is then the ing open until Oc- record would remain proposed EPA or tober written statements control of sulfur oxide Deer emissions there other submissions. After Lodge County, Montаna where further fur- would be a to allow operates company is its smelter. The ther statements. significant ox- source of sulfur position expressed Anaconda’s at the pollution county ide cededly and so con- large spending that it was was regulation, al- money on sums of its own initiative though general form, apply would еmis- an effort control sulfur oxide Anaconda alone. sions; preparing that it was to restrict 64,000 Preliminary to the EPA them from the current issuance rate proposed regulation, per 50,000 pounds per pounds were hour efforts persuade position made to Its further ex- state officials to issue hour. plan 7,040 required pressed pounds per the Clean Air Act that the hour technologically or for the District of Columbia Circuit and economical- would be ly signifi- appropriate circuit. See U.S.C. § unfeasible and would create a 1857h-5(b) (1). intent of pollution problem. cant water appeals exclu to make the court of this the suit was Soon aftеr apparent from that sive forum is (on 26, 1972). September filed An ex- wording.1 injunctive Unquestionably evidentiary conduct- tensive judicial lief in this a form of context is ed. district court then rendered review, Law 3 Davis Administrative 19,1972. decision on December injunc Treatise 23.04 but the which we must statutory tion does edy lie not when rem proper first determine it was is whether adequate here. The court as it is in for the district court entertain is authorized to review all junction fact that the suit view of the questions. & See NLRB Jones administrative had not been Laughlin Corp., 57 S. *4 completed and re the statute ‍‌‌‌‌​​‌​‌​​‌‌​‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​‌‌​‌‍calls for 615, (1937); Ct. 81 L.Ed. 893 Anniston ap appeals view the for the court Mfg. Davis, 337, 301 U.S. 345- (in propriate circuit this instance 346, 816, (1937). 57 S.Ct. 81 1143 L.Ed. Ninth). conclude it was not. grant may injunction. Indeed, it even points advanced, The other as we Greyhound Fusco, See Eastern Lines v. mentioned, have are whether the EPA is (6th 1963); F.2d 477 323 Cir. Public subject requirement to the NEPA Capital Co., Utilities Comm’n v. Transit statements and U.S.App.D.C. 140, 94 214 F.2d 242 whether an (1954); 28 U.S.C. 1651. be held. The three mentioned issues are argued successfully сannot It Thus, somewhat some interrelated. under 1857h-2(a) which authorizes injunctive circumstances, by the action citizen to commence a civil action proper. district court tempting Without at against the administrator for failure to general to formulate a rule perform non-discretionary duty justi here, inappro ordinаrily such action is jurisdiction fies gress in this ease since Con priate in the middle of the administra 1857h-5(b) (1) has made clear in § process unless the administrative the courts of are to review virtually action is final and threatens ir promulgation implementation or aof reparable injury consisting gross of a plan. clean air rights. violatiоn of fundamental Without proceedings character, were of this I. only so the effect of this action tois presence statutory frustrate the administrative remedy review ordinarily will render the appeals’ to intrude on the court of injunctive interruption of the adminis by way function. To allow review in process impropеr. trative Myers v. junction only in the case at bar could Shipbuilding Corp., Bethlehem 303 U.S. serve to delay cause and to take the case 41, 459, 58 (1938); S.Ct. 82 L.Ed. 638 up in a district removed from Duldner, Smith v. (6th 175 F.2d 629 Cir. appropriate either, scene is not for it 1949); Woods, v. Gates 169 F.2d 440 encourage conceivably shop forum (4th Cir. In the ping statute before thwarting procedures Congress us specificаlly has provided carefully adopted. approval review implemen of an or where, here, follows then that Con plan tation is gress be filed specifically designated a fo United States Appeals Court of for the judicial rum for review of administra- 1. For statutes, similar results under other Railway Co., States v. Southern Industries, see Seaborg, UMC 49, (4th v. 1967): 439 54 Cir. 953, (9th F.2d 1971); 955 Cir.

1305 litigants review to obtain threshold in unmistakable so and does tive action injunction, thereby way preliminary extraordinary condi except under terms avoiding tions, Get forum is exclusive. See provided by statute Operations) court review (Eastern ty Oil (3d there mentioned. Cir. F.2d 349 Ruckelshaus, 467 1125, denied, 1972), 93 S. 409 U.S. cert. decision, a recent Internation In Utah (1973). A fur 937, L.Ed.2d 256 Ct. 35 al, Inc. v. Environmental denying jurisdiction for ther reason Agency Apache Tribe of and Jicarilla ripe not cause was is that this case (10th 1973), Indians, F.2d 126 Cir. 478 regulation injunctive relief. petition dismissed this court merely pro under review was ‍‌‌‌‌​​‌​‌​​‌‌​‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​‌‌​‌‍here being ripe where it had view as not posed and final. and not formalized one finally prоmulgated. The court like that be problem here much inter said that the matter before Supreme in Toilet Goods fore locutory ripe judi and therefore not 158, Gardner, 387 U.S. Association citing review, cial Abbott Laboratories (1967). 1520, 18 L.Ed.2d S.Ct. 1507, Gardner, 136, 87 S.Ct. U.S. promul had been There the and Toilet Goods L.Ed.2d 681 gated particular applied to thе Ass’n, Gardner, 387 Inc. v. U.S. litigant pro held that and the Court Co 18 L.Ed.2d mulgation did not in of the Broadcasting System v. United lumbia jure party there was involved since States, brought certainty that it would be *5 distinguished in L.Ed. 1563 is added: regu bear on him. that the Toilet on the basis Goods final and effective. lation there was judicial appraisal of believe that We Ass’n, 387 U.S. Gardner v. Toilet Goods likely on a to stand these factors is 1526, 18 L.Ed.2d 704 footing a in context of much surer the distinguished. to is also be specific application of this bearing down There the the case frame- could be than litigant subjected to sei the who was challenge generalized the work of possible goods, heavy and zure of fines made here. liability. criminal similar court had a somewhat This , the case was not conclude that We problem Company in Pax of before it ripe there was for review that (10th States, F.2d 93 Utah v. United 454 any by justification for intervention 1972). ob- Pax Cir. There the district court.2 injunction tained an administra- which, out, proceedings if carried II. of in the canсellation could have resulted de registration on to pest not called are killers We weed contention cide the merits Anaconda’s by This administra- manufactured Pax. (con required file pursuant to to the EPA was that tive action was instituted 1969) Fungicide Insecticide, NEPA of sistent with the Federal holding There, case, above Our in NEPA statеment. Rodenticide this Act. jurisdic procedures lacked were not that the district the administrative only precludes decision. It is such It was tion allowed to take their course. necessary inquire as to whether procedure held that whereby being appears meritorious in in contention that case could result Pax’s Having justify jurisdiction. exonerated; it could Pax was unable that therefore, so, the contention and, that injury done we conclude show lacking extraordinary inappro- in and substance. proceedings merit is were allowing point EPA’s important that priate. undesirability here is poach in the great the courts of this Circuit abundance Our Circuit territory the Ninth Circuit. no cases. There is need environmental 1306 grossly showing insuffi- improve quality here was sole is to mission justify compel action taken. The cient To the human environment. of denial filing only trial result impact court saw statements adjudicatory a violation accomplishment an serve to frustrate together leg- рrocedural process Moreover, objectives. due the Act’s developed Air Act and the history violation of the Clean is islative Ruckelshaus, Procedure Administrative Ass’n v. Act. Portland Cement disagree. The Administrative (D.C.Cir., 1973) clearly 486 F.2d 375 es- requires an Procedure Act there be that a statement was not tablishes that such agency Cоngress. if

contemplated particular specifies that statute Furthermore, court of hearings rule-making “on be record held statement is such opportunity agency after hear- necessary several decisions ing.” requirement No is set forth such it have ruled which have considered Notwithstanding Air Act. the Clean Appalachian See it is not. Power Co. these are sec- used other words EPA, (4th Cir., 1973); F.2d 495 477 Act, tions of omission them Light Duquesne EPA, 481 F.2d Co. significant. 110(c) is therefore Al- (3d Buckeye Cir., 1973); Power, legheny-Ludlum Co., (6th Cir., F.2d 162 L.Ed.2d 1973); Harvester International (1972); Law K.Davis Administrative Ruckelshaus, (D.C.Cir., 13.08, Treatise at 225 By requiring under § say the EPA 110(c) sought exempt weighing from and consider bring participa- about broad flexible ing other effects of its groups subject tion from all interested Being engaged in order. the environ always ap- to a review the court of improvement effort, mental it must peals. The fact that weigh these and other factors such as course, not, transcribed does mean should, course, inquire economics. *6 hearing that the “on is the record.”3 whether, example, pollu as to water The fact that in- Anaconda alone is tion will result from its instant air volved question is not conclusive on the cleaning program. No doubt it will ful hearing as to whether should the be ad- weigh ly and consider these factors. We judicatory, many for there are in- other cannot assume that parties groups terested and who are af- hearing formality, will mere be a that fected and are entitled to be So heard. stamp op it turn will out a rubber to be guidelines by the enunciated Mr. Justice deficient, however, eration. If it the is Holmes Bi-Metallic v. Investment Co. reviewing remedy soon court can the Equalizatiоn, State Board of 239 U.S. condition. ‍‌‌‌‌​​‌​‌​​‌‌​‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​‌‌​‌‍S.Ct. L.Ed. 372 III. applicable. are not Our final is whether early We have also examined the deci there was sufficient substance to Ana Denver, sion in Londoner 210 U.S. conda’s ap contention so it would that 373, 386, 708, 714, 52 L.Ed. pear deprived proce that it has been nothing impos and therein process by dural due EPA’s refusal requirement. es adjudicatory There grant hearing. type adjudicatory a trial by Moody: it was said Justice Assuming showing depri that a of real vation justify injunc would Many threshold requirements essential in strict- hearing, we must ly judicial determine proceedings may be dis- Park, Buckeye 3. See Citizens Power, to Preserve Overton EPA, Inc. v. Volpe, 402, 410-415, Inc. v. (D.C.Cir., 28 L.Ed.2d 136 Cf. рroce- aspect approval of one E.P.A. na- proceedings of this

pensed inwith during presen- surfaced dure which hearing, here a even ture. But argument. tation of oral essence, he very who demands right to it shall have figure entitled appears of the al- that the argument, by allegations support his 7,040 oxide sulfur emissiоn lowable be, by and, brief; need if however proof, proposed by pounds in its E.P.A. set informal. however product not the work was simply agency an ar- staff and was the Act and the our examination From agen- figure, by bitrary not intended statutes, and law related case by congressional cy as the E.P.A. one defendable appear as would fact, been and used quirement public reasonable given public discussion at and the been bait Notice has satisfied. issued. later scheduled. Since to be 7,040 figure pounds appeared constituted a re- at given op in Anaconda’s emission duction of material submitted 89% proposal certain- portunity material of sulfur oxide such a to submit more days period ly protest fol activated and discussion. information for hearing. inherently perceive lowing procedure We However such right pro might destroy unfair, well violation Anaconda’s serve Myers process. corporate v. Beth in a lesser com- cedural due vаlue stock Corp., supra; Anaconda, certainly Shipbuilding pany NLRB lehem than and most supra; Laughlin Corp., expertise any acceptance deter v. Jones & will Davis, supra; Mfg. pro- E.P.A. the courts. All Anniston reflect, supra; Power, Buckeye posals by should E.P.A. States, supra. Nothing agency’s judgment. Pax v. United Co. of Utah considered aсceptable public, that is to the less than Unending procedure could be industry, or the courts. hearing. duced bring unending delay which about completely only impede would but not, congressional policy. stifle course, con- condemn the court’s trial rights Those of Anaconda.

cern rights important

are them, those should sensitive COMPANY, a Colo- WESTRIC BATTERY rights magnitude of such corporation, Plaintiff-Appellee, rado congressional policy overcome rights communi- of the remainder *7 COMPANY, ELECTRIC STANDARD ty. INC., corporation, a Texas judgment the district court is Defendant-Appellant. remanded reversed and cause is No. 72-1734. judgment herein directions to vacate Appeals, States and tо the action. dismiss Tenth Circuit. (concurring). LEWIS, ‍‌‌‌‌​​‌​‌​​‌‌​‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​‌‌​‌‍Judge Chief May 22, Argued and Submitted 1973. agree prepared I am not July 6, Decided 1973. jurisdiction to naked trial court lacked Rehearing Aug. this action under 42 U.S.C. entertain Denied complete am in accord with 1857h-21 but opinion expressed in the main

the views projected the merits of

when However, controversy. to add I wish my subjective indicating dis-

a comment argued Although jurisdiction nor neither briefed tention was the trial court’s appeal. the trial level this con- controverted at