West Penn Power Company, a Corporation v. Russell Train, Administrator of the Environmental Protection Agency of Theunited States of America

DUSEN, Before VAN ADAMS and GARTH, Judges. Circuit THE OPINION OF COURT DUSEN, Circuit Judge. VAN challenges 19, appeal This June dismissing court order district West Company’s Power Penn amended com jurisdiction.1 for lack of plaint The dis complaint sought injunctive missed and declaratory protecting relief comply any duty parti from compound culate sulfur emission Pennsyl part standards established implementation plan2 pursuant vania’s opinion 1. The order June relevant to this action. 25 dards Pa.Code Chs. regulations comprise are docketed as Document # 24 in 121-141 form F.Supp. (W.D.Pa.). Pennsylvania’s implementation plan. plan Civil No. August adopted The memorandum and order of Quality the Environmental was 1974, denying Pennsylvania the motion for reconsideration of the Commonwealth of Board January approved June 19 order was docketed as Docu- on the Ad- (W.D.Pa.). # 29 Civil No. 73-1083 ment ministrator the Environmental Protection May (EPA) Agency Fed.Reg. on 1972. 37 particulate 123 contains 2. 25 Pa.Code Ch. 10889; 1857c-5(a)(l) 42 U.S.C. compound and sulfur matter emission stan- Act, 42 Air 1857 et Mitchell Power Clean Station was in violation seq.3 applicable particulate and sulfur compound emission standards. Thereaft petition not file Penn did West er, September on granted DER 1857h-5(b)(l)4 42 U.S.C. § review Penn a temporary West variance until challenge 30, 1976, from June the sulfur emission petitioned but approved, when variance, however, standards.8 re of Environ Department jected proposal West Penn’s it use a (DER) for a variance5 Resources low “tall stack” and sulfur coal mental to meet standards;9 visible, installation of a and sulfur “scrub particulate, controlling ber” device for sulfur com applicable emission standards compound emissions was a pound condition No. 33 West Penn’s Mitchell to Boiler temporary variance. This variance has September On Station. Power approved by not been EPA.10 DER had acted its variance before Penn received from EPA appealed first request6 DER’s vari charging Violation7 ance order to the Pennsylvania Notice of a Environ generally Act was amended the Air 5. See 25 Chapter Air Pa.Code 3. The Clean Ch. 141. 1967, 485, 27, adopted January 1972, Quality 81 Stat. and Act of 141 was ap- and 1970, proved by May 31, Amendments of Pub.L. 91- EPA on Air 1972. Clean 604, 1676. The 1970 amendments Stat. 84 petition variance, originally 6. The filed required propose the EPA Air Act the Clean primary 15, 1972, September 7, was amended on June secondary quality air standards. petition, 1973. In its pro- amended West Penn 1857c^4. Within nine months aft- § 42 U.S.C. posed compound to reduce sulfur emissions promulgation of each of these stan- er dards, every burning by building low sulfur coal and a “tall adopt state was to and submit to ground-level stack” to reduce concentration of plan of the EPA “a which the Administrator pollutant. West Penn further stated its maintenance, implementation, provides for equipment intent to “install sulfur-control as of the standards. 42 U.S.C. enforcement” commercially proven, reliable, soon as and en- statutory accordance with the In 1857c-5. § vironmentally acceptable equipment is availa- scheme, Pennsylvania public four held hear- Particulate matter ble.” by was to be controlled proposed plan. ings its The record does on precipitator use of an electrostatic appeared any whether West Penn not reveal gas. chemical treatment the flue hearings, which were held from Decem- of the pursuant 7. The notice of violation was issued 4, plan, including 1971. The the emis- ber 1— 1857c-8(a)(l), provides: to 42 U.S.C. which § suit, generated was sion standard adopted “Whenever, on the basis of informa- Environmental him, 27, January 1972; tion available to plan Quality on Board any person finds that is in approved violation of provisions this suit relevant to were requirement applicable 31, implementation May of an EPA Administrator on 1972. plan, notify per- the Administrator shall Fed.Reg. description 10889. For a fuller 37 plan scheme, Duquesne son in violation of the legislative Light and the State in see Co. plan applies 1, EPA, (3d finding. which the of such If 481 F.2d 3-5 Cir. beyond day such violation extends the 30th 1857h-5(b)(l) provides perti- 42 § 4. U.S.C. after the date of the Administrator’s notifica- part: nent tion, may the Administrator issue an order petition for review of the “A Administrator’s requiring person comply such approving promulgating any action in im- requirements plan may bring of such or he a plan plementation . . be filed civil action in accordance with subsection Appeals in the United States Court of (b) of this section.” appropriate Any peti- for the circuit. such 8. Particulate emission standards were to be days be filed within tion shall 30 from the 1, bymet November promulgation, approval, date of such or ac- supra. 9. See note 6 tion, petition or after such date if such 1857c-5(a)(3); 42 10. See U.S.C. § Train v. solely grounds arising on based after such Council, Inc., Natural Resources Defense 421 day." 30th 60, 90-94, 1470, U.S. 95 S.Ct. 43 L.Ed.2d challenging In addition to as a whole (1975); Getty Ruckelshaus, 731 Oil Co. v. 467 statute, the above could (3d 1972), denied, F.2d 358 Cir. cert. 409 operation sought partic- relief from the have U.S. requirements plan by seeking ular pursuant to 35 variance Purdon’s Pa.Stats. 4004(41) 1857c-5(a)(3). and 42 § U.S.C. § 306 then, right Hearing bring suit”];15 Board11 and on tablishment

mental Act, filed this Administrative Procedure 5 action The December EPA, seq.;16 701 et The Federal De the Administrator U.S.C. against § DER, Act, Train, Secretary Goddard, Judgment claratory 28 U.S.C. 2202; complaint, 2201 and and 28 and DER.12 U.S.C. §§ 17 amended,13 Complaint, Amended declaratory judg asked for 1337.” Civ § 1 tall stack scheme for il Action No. ment both Document #20 73— (W.D.Pa.). effecting compliance Pennsylvania’s 19, 1974, after the three de plan could not On June reject 12(b) had filed F.R.Civ.P. fendants mo by the defendants and that West ed subject for lack of to dismiss mat presently violating was not tions jurisdiction,18 the district sought prelimi West Penn also ter court dis complaint amended injunctions in its en permanent against missed nary to all defendants. tirety, as of the September EPA enforcement jurisdic lacked Notice of Violation first determined and DER en Administrator, Train. the order tion over forcement install Getty Ruckelshaus, Oil Co. v. Relying Jurisdiction predicat “scrubber.” denied, Act, “the Air cert. upon Clean ed U.S.C. seq., specifically et L.Ed.2d (1973), the district court “Citizen concluded 1857h-2 suits —Es [entitled 4004(4.1), jurisdiction, See 35 Purdon’s Pa.Stats. district courts shall §§ “The 4013.5, regard controversy and 71 Purdon’s Pa.Stats. 1710.41. without amount in citizenship parties, The action is docketed at Environmental Hear- or the to enforce ing limitation, Board No. 73-330. such an emission standard or or order, such an or to order the Administrator filing court, 12. Before suit in federal duty, perform may such act as the case participated meetings in a series of held be. from October EPA 18 to November 1973. Notice topics Among investigation under at this “(b) No action be commenced— was the state of the conference art of sulfur control. emission (2) (a)(2) under subsection of this section original complaint only 13. named EPA prior days plaintiff given after the to 60 DER as defendants. After a March notice of such action to the Administrator.” 1974, hearing on the motions to dismiss filed II, infra. 16. See Part Neither the APA nor 28 January and DER in 17, infra, alleged see note U.S.C. § complaint Secretary its to add amended of jurisdictional original as a plaint. basis in the com- defendant. as a DER brief, West Penn In its avers 14. that the com- regula- 17. 1337. Commerce and “§ anti-trust plaint asked for “a also decree that the instal- tions. gas of flue lation desulfurization device original ju- “The district courts shall have on Boiler No. 33 would not [“scrubber”] effect any proceeding civil Pennsylvania risdiction action or compliance implementa- any arising Congress regulating under Act of expiration plan after the tion variance protecting commerce or against trade and Plaintiff-Appellant commerce period.” Brief for at 5. monopolies.” restraints and Secretary agree with defendant We of DER complaint Act, relied on the complaint Clean Air cannot be that raising construed as seq., Congress 1857 et as an U.S.C. act of § such issue. regulating commerce within the scope of 1857h-2. Citizen “§ 15. suits —Establishment § bring right to suit argued DER and Except provided Goddard also “(a) (b) as in subsection precluded section, Eleventh any person may Amendment the court commence a from of this exercising personal jurisdiction over his own behalf— them. civil action grounds urged by Other for dismissal DER and join Goddard were: indispensable failure to (2) against the Administrator where there parties; no exhaustion of administrative reme- alleged failure of the Administrator dies; upon failure to state a claim which relief duty chapter under act or perform granted; could be and the abstention doctrine. discretionary with the Adminis- trator. DER, Declaratory Judgment neither As to court held the (DJA) Act nor Administrative Proce action barred the Eleventh Amendm ent23 The court also concluded (APA) jurisdiction Act furnished a it dure jurisdiction lacked over Penn’s against Secretary al for West suit base DER, Goddard. The jurisdiction court viewed West lay Train.19 No under Penn’s assertion that DER power because West Penn had not lacked 1857h-2 § suit, reject a “tall stack” days’ or to direct given Train 60 notice of the instal as, lation a “scrubber” essentially, section.20 required Having challenge to the rejected Pennsylvania juris implemen thus each of West Penn’s tation a challenge Such claims21 the district court went dictional could be that, event, brought only in the court appeals pur on to find U.S.C. 1857h-5(b)(l) (2)22 suant to 42 U.S.C. 1857h-5(b)(l) § foreclosed dis § (2). The opinion court jurisdiction recog court over the trict action. nized that a variance court quali the district determined that the air Since ty standards would complaint remedy raised in the all issues could Penn’s brought complaint, but noted that been before the court of the temporary variance issued in an action DER on challenging September appeals 19, 1973, was ineffective plan, without EPA comp approval, which that West Penn’s the court held exclusive recourse could not jurisdiction This lack proceeding Train was a against under over the el.24 1857h-5(b)(l). rejected paragraph (1) court considered and obtained under subject 19. The the alle- shall not be gation 28 U.S.C. review in civil or criminal together proceedings with the APA and DJA claims. enforcement.” opinion 20. The district court set forth the no- holding appealed. 23. This was not applicable provisions (a)(1), tice to subsection (a)(2). supra. rather than ever, See note 15 How- 306, supra. 24. See discussion at The district days’ required case, notice is either relied on Natural Resources Defense mis-citation was so that the immaterial. Council, Inc. v. Environmental Protection rejecting (5th Agency, stating As a reason for 489 F.2d 390 second 1857h-2 jurisdiction, the district court relied on the dis- that a valid variance could upon application be obtained cretionary Pennsyl- nature of the Administrator’s action of the Governor of Pennsylvania approving plan, one-year compli- “in cluding the and in- vania for a extension of the provision prevents implementation plan. a therein which date for the ance This using plaintiff procedure obtaining postpone- the so-called tall stack as a elaborate for compliance compliance with method of the ambient air of the date is ment contained in 42 applies only 1857c-5(f). 1857h-2 § standards.” to cases Since the district § U.S.C. court opinion, perform Supreme the Administrator where non-discretionary fails to authored its the Court decision, supra, Act. To Fifth the extent reversed the Circuit and held, NRDC, Natural in Train v. Train Resources Defense 95 S.Ct. Council, (1975), that a variance (1975), suggests pursuant 1857c-5(a)(3), to L.Ed.2d 731 Administra- can be obtained § 1857c-5(f). § tor’s discretion is more limited than the rather than Under 1857c- § dis- reading 5(a)(3), merely trict court inferred from its a variance becomes effective of 42 1857c-5, ground might upon approval Further, this second the EPA Administrator. § U.S.C. alone, not, dispositive grant be of the claim is to the vari- under notice, give determines 1857h-2. The failure to ance “if he it meets the re- § ever, how- preclude jurisdic- quirements 1857c-5(a)(2), 1857h-2 § [§ suffices which sets Moreover, acceptable implementation appealed Penn for an tion. has not forth criteria plan] jurisdictional holding. adopted by Metropoli- But see and has been this State after public Washington hearings.” Coalition for Clean Air reasonable notice and tan v. Dis- Columbia, NRDC, holding however, F.Supp. Supreme Court’s trict of (D.D.C.1974). finding the district does not invalidate court’s had not obtained an that West Penn effective supra. 21. See note 19 variance, approved since the EPA had not supra. § 22. See note 1857h- temporary 1857c-5(a)(3). variance under See § 5(b)(2) provides: at and n.28. 421 U.S. at Nor, believe, “(2) of the Administrator does the district Action with re- we court’s re- spect which review could have been on the Fifth Circuit decision in liance NRDC Administrator, Train, (3) process requires the rendered whether due fed- eral court intervention “futile,” jurisdiction district to assume since Goddard could not grant a and decide the issues raised variance or approve a “tall stack” without complaint. EPA con- currence. Finally, the court found that THE I. EXCLUSIVITY OF REVIEW (35 law Purdon’s Pa.Stats. PROVIDED 1857h- IN U.S.C. § 4004(4.1)) § offered West Penn ample (2) 5(b)(1) and relief, without any need for federal in- tervention. West Penn claims that EPA could not Pennsylva- utility violating for cite timely filed a motion for plan since West nia’s challenging reconsideration the dismissal Penn, filing petition for a variance complaint only as to Train and 15, 1972, September received an auto- September Goddard. On after stay prosecution violation of matic motion, court denied the district sulfur compound and particulate lodged appeal. Although argument This re- standards. emission precisely aspects it is not clear which 141.5, pro- which Pa.Code § lies on 25 court’s decision West Penn is vides: we treat appealing,25 will the appeal as

raising following three questions: “(a) which petition complies A with (1) whether the district court prop- requirements 141.11 of this erly 1857h-5(b)(l) concluded that § filing), and (relating Title (2) required dismissal of the com- Department received within six Goddard; plaint as to both Train and of the effective date of this months (2) whether the district ju operate court has Chapter, prospectively shall

risdiction under the APA26 stay prosecution matters an automatic complaint; raised in the provisions of those of this violations authority reject undercut its conclusion that it lacked a tall stack and order installation of a compel grant achieving variance compliance to West scrubber as a means of action, though proper plan. Similarly, Penn. A mandamus argu- West Penn’s 1857c-5(f) great under because discre- ment the district court has postulates tion which the district court plicit power identified as im- under the APA to decide section, might proper in that complaint. the first issue raised in the However, 1857c-5(a)(3). legal Plaintiff-Appellant no factual or Brief for at 18-23. At the argument time, however, made West Penn summary in this same argu- action support issuance of a arguing mandamus. ment describes length” the brief as “at Therefore, prejudiced by (b)(2) West Penn was “jurisdiction that subsection did not bar ap- the district court’s view that issuance against consider West Penn’s claims proval discretionary. remaining of a variance was Plaintiff-Ap- defendants.” Brief for pellant arguments n. 3. It is true that support of inconsistent alternative claims are example, complaint 25. For seeks declarato- permitted under the Federal Rules of Civil Pro- ry injunctive (1) relief as to two issues: case, however, cedure. arguments In this presently whether West Penn is in violation of alternative, serial, are not but and the incon- standards, plan’s (2) emission whether arguments merely sistencies in the pro- briefed comply plan. a tall stack would See unnecessary duce confusion into a case not 14, supra. arguing note In that the district complex. otherwise holding 1857h-5(b)(2) in court erred quired that § re- complaint, dismissal of the West Penn argue 26. West Penn does appeal not on this urges only that the first issue could not have jurisdiction that lies under § 1337. But see (b)(1) proceeding. been raised a subsection Bachowski, 560, Dunlop 566, 421 U.S. Plaintiff-Appellant Brief for appears at 13—17. It thus 1851, (June 2, It to concede that the district court jurisdiction- also concedes that the DJA is not properly complaint dismissed the as to the nature, al in but “defines the form of relief second issue. Such a concession would also aggrieved party available to an under the Ad- amount to an admission that Goddard was ministrative Procedure Act.” Brief for Plain- defendant, properly dismissed as a since the tiff-Appellant at n. 4. only complaint alleged cause of action the against authority was that Goddard he lacked deciding whether a tall stack from court respect which the vari- with Article of complying method with proper year until one the was sought, after ance prescribes certain air plan Chapter of this or until date effective met, which must be standards quality takes action on such Department attaining those specific methods first, occurs not except whichever petition, (b)(1) A subsection suit standards. filing petition for a vari- that is, plan challenge thereof, would ance, grant shall not or —that standards, not the methods of compli- from full petitioner relieve Thus, (b)(2) subsection compliance. permits pre- orders and ance West Penn from rais prevent not would any stipulations or viously issued in the district stack issue ing the tall previously entered into agreements See, generally, Note: Reviewa shall such court.28 filing nor Department, Administrative Action: The bility of Department way preclude Pragmatic for Elusive Search any and all remedies pursuing from 384; Standard, 1974 Duke L.J. L. it, equity, at law or in available Jaffe, Control of orders, Judicial Administrative permits, stipula- such enforce However, Action, 372-76 tions, agreements.” or was an grant there affirmative unless stay this was in Penn avers that court, in the district the dis jurisdiction 13, 1973, “and will September effect lack of was still for missal through at least June so remain proper. Plaintiff-Appellant for Brief 1975.” p. n.3. THE AD- UNDER II. JURISDICTION PROCEDURE MINISTRATIVE addition, argued, Penn In THE DECLARATORY AND ACT at 9 and in its brief before this both ACT JUDGMENT DER, court, it has a variance from court relied on this court’s The district September which ex granted Ruckelshaus, Getty Oil Co. v. decision complying with the sulfur empts it from denied, (3d Cir. cert. 467 F.2d 349 standards until June 1976.27 emission 35 L.Ed.2d is not in contention This (1973), proposition that nei poses no plan thus chal violation DJA, 28 U.S.C. 2201 and ther §§ Administrator’s “the action in lenge APA, et 5 U.S.C. nor promulgating any imple approving jurisdic “afford a basis for seq., could 42 U.S.C. 1857h- plan,” mentation at 356. also PBW 467 F.2d See tion.” rather, validity it relies on the 5(b)(1); SEC, Exchange, Inc. v. Stock provisions granting vari 1973); Zimmerman v. United (3d Cir. agree We therefore with West ances. States, (3d Cir.), 422 F.2d 326 cert. de particular this contention 2200, 26 nied, have been raised in a 1857h- could in Get plaintiff L.Ed.2d It follows that 5(b)(1) proceeding. in the Delaware district filed suit ty had finding erred in that sub court, attacking regulations certain jurisdiction to (b)(2) barred its section approved by the EPA had been this claim. decide part of that state’s im plan under the Clean Air plementation appears subsection also It court determined that The district Act. foreclose the district (b)(2) Getty 28. This case is thus argument different Oil legally note that is not 27. We Ruckelshaus, Co. v. F.2d 349 A is not effective until it sustainable. variance denied, cert. by approved the EPA Administrator. is (1973), plaintiff 35 L.Ed.2d 256 where the 1857c-5(a)(3). approval chal Such is lack- U.S.C. § lenged plan regulations the Delaware supra. them ing note More- in this case. See II, over, valid, selves. Id. at 355. See Part argument infra. if the were even West subject violating be to citation for Penn would any particulate emission standards at time 1, 1973. See note November 8. after judgment that West Penn properly was not vio jurisdiction was invoked under 1337, DJA, lating as a means of preventing and the APA. 28 U.S.C. § citing utility rejected acting Train from for juris- this court appeal, On Second, claim, contrary plan. it finding that asked neither the dictional injunction against enforcement of DJA the APA extended federal nor According notice of violation. to 42 jurisdiction “to cases not otherwise 1857c-8(a)(l), the competence.” U.S.C. “administra within their 467 F.2d at notify” any “person tor shall in violation 356. ” . . . Issuance of a asserts that the dis notice is non-discretionary. violation thus and, holding court’s presumably, trict However, the decision to enforce a viola inconsistent Getty Supreme are discretionary tion notice opinion in Abbott Court’s Laboratories v. 8(b).30 U.S.C. The APA does § 1857c— Gardner, provide for review any act “com L.Ed.2d 681 Abbott Laborato agency by mitted to discretion law.” 5 contends, ries, appellant clearly man 701(a)(2). See Commonwealth U.S.C. § jurisdiction dates district court under the Ruckelshaus, Hancock Ky. ex rel. APA to review the administrative action (6th Thus contested complaint. Penn’s provide jurisdiction the APA (for The above cited cases example, Zim for the district court to issue the re merman, supra) show that the APA does quested injunction. Jurisdiction to issue jurisdiction grant29 and not constitute a declaratory requested judgment hence we must affirm the district court’s similarly wanting under 5 U.S.C. § However, dismissal this case. assum subjects judicial which review ing, arguendo, that it did constitute such “[ajgency action made reviewable jurisdictional grant, we would still be agency statute and final action for required to affirm such dismissal. there adequate is no other remedy cites, in a court . . . .” West Penn The APA provides, in certain found, and we have no statute which instances, review of agency makes reviewable Train’s issuance of a 701(b)(1) action. 5 U.S.C. § defines of violation. statutory notice Under the “agency” as “each authority of plan, the notice of violation is not “final Government of the United States agency may action” since it be followed ..” The APA does not extend to (1) “may” either an order which agencies. Thus, state it could not afford notice, days issued 30 after the 42 U.S.C. the district court of West 1857c-8(a)(l), but “shall not take ef against Goddard, Penn’s suit who is the the person fect until to whom it is Secretary issued agency. opportunity had an to confer with Train, As to the complaint set Administrator concerning the violation,” the alleged requests First, forth two for relief. 1857c-8(a)(4), U.S.C. § or that the court render a declaratory (2) asks under 42 a civil suit 1857c- Getty bility took Abbott Laboratories into of administrative action under the APA deciding account the APA did not en- Getty. See, g., than this court did in e. G. power Getty’s the district court Vining, hear com- Direct Review and the Doctrine of plaint. appear Since West Penn does not Ripeness Law, in Administrative 69 Mich.L. any arguments have advanced (1971); Jaffe, that would not 339-63, supra, Rev. 1443 L. Getty court, have considered been we 372-76. would, principles under normal of stare deci- “(b) The Administrator commence a sis, disregard be reluctant a decision of our relief, appropriate including civil action closely analogous court which is to the case permanent temporary injunction, whenever before us. This reluctance is reinforced any person— Supreme Getty Court’s favorable citation of “(1) NRDC, comply violates or fails or refuses to in Train v. (a) issued under order subsection recog- We section; . . . however, nize, that some commentators expansive taken a more view of the reviewa- raised in the statutory- the issues Amended all to above. referred 8(b), the learned District Court Complaint, the violation that contemplates scheme the Clean Air interpreted Act and its independent an has neither has itself notice Getty in Oil in a manner decision “the law.” nor force of effect [sic] coercive West Penn of its deprives due Broadcasting System v. United which Columbia hearing guaranteed by to a 1194, right process States, S.Ct. 316 U.S. and Fourteenth Amendments Fifth bears (1942). The notice 86 L.Ed. Constitution.” States the United Drug Food and resemblance no Plaintiff-Appellant at 23. for were Brief which regulations Administration Abbott Laboratories in reviewable found claiming Penn is not West Association, Toilet Goods v. Gardner process by any due been denied it has 18 L.Ed.2d 387 U.S. argues, It the defendants. action characterized The Court rather, will not receive constitu that it challenged in Abbott and regulations in process elsewhere than due tional “formal,” “definitive,” Goods Toilet hearing prior held court federal and “self- publication” upon “effective which are available to proceedings other 151, 171, 87 at executing.” 387 differences between the utili resolve Associ- Goods also Toilet See S.Ct. Yet at least two and the defendants. ty Gardner, ation open Penn, are of relief West avenues (1967). By L.Ed.2d 697 suit. present besides effect of a notice contrast, has taken the initiative in Penn West recipient aware to make is violation by ap of these alternatives one pursuing regulations are not “definitive” Pennsylvania to the DER Envi pealing statutory trigger the met and being Hearing Board. Since ronmental accommodation informal mechanism appealable decision Board’s enforcement any formal precedes courts, 71 Purdon’s Pa. Pennsylvania course, plan’s emission Of measures. 1710.41, West Penn has taken Stats. analogous to are themselves standards step to state settlement of the first in Abbott Lab- reviewed regulations with Goddard.31 dispute its are not oratories, regulations those but I Part appeal. See challenged on Consistent with Article VI of the Con- above. stitution, providing, alia, inter “Constitution, reasons, and the foregoing we hold Laws of the

For the Unit- no ed . . . provides ground APA States shall be the su- Land; preme Law of the Judges court review of issues raised and the every in shall complaint. Penn’s State be bound thereby, West ” Supreme . Court of the AND THE DUE III. JURISDICTION operated United States under the as- PROCESS CLAUSE sumption that the judges state who have uphold sworn to such Constitution dismissing avers that will af- Penn “[i]n process of law to the litigants lack ford due be- suit for the instant Pursue, Ltd., them. Huffman v. hearing fore See denying a on the merits of rejected. Duquesne, supra. parties 31. See note West Penn will receive tion is In had hearing already hearing adjudicative before the received a before the Board. The Board determined, hearing, procedure set which the court from an forth in examina- rules of record, Law, inadequate. Pennsylvania Agency tion of the Administrative The deci- Duquesne way implies seq., comply sion in in no Pa.Stats. 1710.1 et that such 71 Purdon’s hearing per inadequate. requirements process se as set forth in We also due note stating Goldberg Kelly, errs in that West Penn position it is in the same parties Duquesne. as the Those 25 L.Ed.2d parties were in the Circuit Court virtue of court’s Penn cites this decision Du- brought having 5(b)(1) a § suit. 481 EPA, 1857h— Light quesne Co. v. bring F.2d at 5. West did not this suit proposition that it would not be for the that section of the Clean under Air Act. process relegated if it were due to its accorded law. This asser- remedies 312 ture relief available to it 1200, in 43 both the 592, 95 S.Ct. and Also, state federal courts. (1975); cf. v. Mis West 482 Johnson L.Ed.2d has 213, 219, 1591, Penn not advanced reason that sissippi, 421 U.S. due one (1975).32 Also, process requires view of in federal 121 court 44 L.Ed.2d suit—initiated West maintaining pro- interest in Penn —but strong state another hibits federal court through suit abatement of that public health might later be initiated see 42 1857c- EPA. It is pollution, air to postulate difficult in advance 4(b)(1) (2), and the broad discretion that two proceedings federal court which appli gov- officials in the are delegable public to by the laws, procedure erned same rules of enforcement of health cation and 174, would have different results in King, 260 43 terms of Zucht v. U.S. S.Ct. cf. process. Getty, due (1922), supra, See also

24, justifi we see no 67 L.Ed. 194 357; 42 1857h-5(c). U.S.C. § court interference cation federal court with the state remedies available argument West Penn’s thus in this case. v. parties Duke Tex misapprehend the nature of appears as, (5th 244 cert. process requires, Due process. es due 978, denied, 1565, 94 39 S.Ct. sentially, only hearing a full and fair (1974). 874 L.Ed.2d impartial an tribunal “at a mean before meaningful time and in a man opened by ingful to relief The second route is 545, Manzo, Armstrong v. 380 1857c-8(a)(4), ner.” U.S. see Part II 42 U.S.C. § 1187, 1191, 552, S.Ct. 14 L.Ed.2d 62 brought time West 85 above. At the Penn 254, Goldberg Kelly, v. 397 action, (1965); had received notice U.S. 1011, 25 287 Train. 90 L.Ed.2d A receiving of violation from After S.Ct. hearing comports Penn which with notice, opportuni had the due West process35 ordinarily be informally negotiating its must be accorded ty both for present party Train33 and for can be “condemned fore a to suf differences loss,” court, Joint ing grievous a federal Anti-Fascist its cause to fer McGrath, v. Refugee formal Committee 341 steps EPA take to enforce U.S. should 168, 624, 123, (1951) 71 95 L.Ed. 817 allegedly S.Ct. regulations violated J., (Frankfurter, concurring). West Penn.34 Thus See Gold- West Penn has fu- Pursue, Ltd., 592, 32. In v. U.S. Huffman 420 original 1978. The March December 1200, 1209, used this the Court compliance of a deadline for submission language: May 1, 1975. was extended to Each of reducing deadlines for West Penn’s the final assuming, arguendo, litigants “Even are Pennsylvania to meet the standards emissions entitled to a federal forum for the resolution days. similarly for 60 extended issues, of all federal that entitlement is most appropriately litigant asserted a state plaintiff Getty, noted In the court relitigate when he seeks to a federal issue raising would “be foreclosed from there these adversely completed determined state proceeding objections in a civil criminal proceedings. We do not understand pursued it had not because for enforcement” why pri- the federal forum must be available remedy 1857h-5(b)(l). its exclusive completion or proceedings of the state we have determined West Penn’s Since arises, which the federal issue and the con- raised in could not have been a subsec- claims Younger Harris, siderations canvassed in [v. (b)(1) proceeding, we conclude that West tion U.S. S.Ct. 27 L.Ed.2d 669 argue is free them enforcement Penn (1971)] against militate such a result.” proceeding. (Footnote omitted.) process protean, It is axiomatic that due utility 33. The opportu- availed itself of this being form at its actual time a function of nity. West Penn and the EPA conferred on rights given interests at stake in a during pendency several occasions of the proceeding. Co., Mitchell v. W. T. Grant conferences, suit. After these EPA issued an requiring administrative order Penn attempt give Thus we make no adopt implement procedure comply- description hearing pro- detailed ing emission standards. procedural process. due vides gave switching the choice of to low sulfur oil to install a scrubber alleged “It has been this re- Weinberger, supra; Mattern berg, Act, Judiciary with re- striction (3d Cir. But see Calero- F.2d Co., action, of choses in gard assignees Leasing Yacht Pearson Toledo provision with this in conflict 40 L.Ed.2d 452 U.S. Constitution, and therefore void. Perales, v. 402 U.S. (1974); Richardson 389, 91 S.Ct. admitted, “It be must if the however, need not hearing, The had ordained and estab- Constitution Kennedy, Arnett v. court. See federal courts, the inferior and distrib- lished 1633, 40 94 L.Ed.2d 15 S.Ct. 416 U.S. respective powers, to them their uted al., Chung Park et 514 v. (1974); In-Cho be restricted or they could not divested party a is (3d Cir. Thus F.2d 382 it But as has no by Congress. made who, process having of deprived due not distribution, one of two conse- such action, relegated is to cause of no federal result, must quences that each —either See, g., for redress. e. courts the state by Congress court created inferior (20 City Memphis, v. of 87 U.S. Murdock judicial all powers exercise the must (1875); 590, 632, 22 L.Ed. Wall.) 429 Supreme Court, the given to or Pursue, Ltd., supra. Nor is v. Huffman Congress, having power to es- process merely deprived of due a party courts, must define their tablish it must seek administrative reso because jurisdictions. The respective first of before it has of its claims access lution these inferences has never been assert- Benson, v. 285 courts. Crowell ed, could not be defended with (1932); L.Ed. 52 76 598 S.Ct. U.S. reason, not, of and if show States, v. 66 Estep United U.S. seem to follow as a latter would neces- (1946); v. 90 L.Ed. Barnes consequence. sary And it seem would al., et F.2d 916 Chatterton follow, also, that, having a right to at 1975); Getty, supra 356 ff. See also Congress prescribe, withhold from Jaffe, Further, supra 381—89.36 since jurisdiction of its creation any court of adduced, Penn has and we the enumerated controversies. discovered, any statutory other have not created statute can have no Courts APA for than the district court basis as but such the statute jurisdiction suit, process of this jurisdiction due No one of them can assert a confers. appears also misunderstand argument jurisdiction just exclusively claim to of the federal courts. power another, on or withheld conferred all. Sill, (8 How.) v. In Sheldon (1850), 12 L.Ed. has “The Constitution defined jurisdiction of the judicial power described limits of the Court limited, being States, first as prescribed courts but has not United federal definition of federal it shall be the constitutional how much of exercised and, second, by Court; the con powers consequently, the Circuit jurisdiction:37 prescribe which does the limits distribution statute gressional otherwise, re- L.Ed.2d could rule no court Were the (1974), and cases there cited. administrative reme- quire party to exhaust suing Yet the in a forum. before dies exercising concept as courts 37. federal widely accepted. is exhaustion doctrine See, limited, opposed general, jurisdic- Jaffe, Barnes, supra supra; at 424 g., e. See, original hardly with Sheldon. e. tion was g., Law, Davis, ff.; 20.01 §§ Administrative 3 K. Madison, Marbury (1 Cranch.) Also, Supp.). (1958 seq. and 1970 ed. et (1803). Just limited feder- 2 L.Ed. 60 how occa- stated several Supreme has Court actually subject been the al power delegation of to entrust sions Bator, generally, P. debate. See P. of active Mishkin, statutory rights to an adminis- enforcement Wechsler, Shapiro, D. and H. Hart process not a violation of consti- trative Wechsler’s, The Federal Court and the jury right under the Seventh trial tutional 314-24; System, 330-75 Federal Realty, Pernell Southall See Amendment. jurisdiction, cannot be in con- of their tice the federal Environmental Pro Constitution, unless Agency flict with tection that a is violating firm not enumerated powers approved there- federally pollution confers air regula is, specific in. tion under the config factual here, judicially uration reviewable under held has been doctrine “Such the Administrative Procedure Act its first since establishment. this court (APA).1 all cases which it To enumerate Pursuant the Clean Air Act directly Amend either advanced has been ments of 19702 the be tedious tacitly assumed Environmental Agency Protection unnecessary.” issued primary a national quality ambient air Sheldon, holding of reaffirmed regulating standard permissible con times, requires a ba- statutory countless centration sulfur oxides.3 Under the jurisdiction of West sis for district Act, each state required to develop The mere action. invocation Penn’s approval and submit for by the Adminis process” “due cannot without more fur- implementation trator an designed plan, a basis in this such suit. nish to achieve quali Administrator’s air if we even did stat Finally, discover a ty standards.4 Once a state’s utory grant jurisdiction, the inapplica EPA, been ratified it becomes bility immunity would pose APA regulation. enforceable a federal against Train, to this suit while barriers After the approved against federal policy court interven Pennsylvania plan, which pro included a process in the state administrative tion vision intended to achieve compliance prevent against suit Goddard. with the Administrator’s limitation on Blount, (5th 461 F.2d Beale 1138 proportion 1972). of sulfur oxides in the Huffman, supra See at 421 Cir. air, ambient West Penn did not exercise 605-607, 1200; Jaffe, 95 right its to challenge the EPA’s approval 213-31, supra at 327 — 29. in the federal courts.5 West did, reasons, foregoing For the the June however, in accordance with the terms 19, 1974, district court order will aff the Pennsylvania plan, petition the Costs will be against ap irmed.38 taxed Pennsylvania Department of Environ pellant. mental Resources (DER) a variance plan’s from the sulfur oxide emission6 ADAMS, Judge Circuit (dissenting). restriction as it applied to the company’s I respectfully dissent majori- from the Boiler No. 33 at its Mitchell Power Sta ty’s decision because I believe that a no- tion. affirming precluded ment, 38. We protect are not from though Secondary national health. order, disagree district court’s even quality we ambient air standards are those neces- jurisdic- with court’s sary, determination judgment, pre- in the Administrator’s lacking tion was because 42 U.S.C. general 1857h- § serve the welfare. See 42 U.S.C. 5(b)(1) provided 1857c-4(b). West Penn’s exclusive reme- § Co., dy. Motor Rhoads Ford 4. U.S.C. § 1857C-5. 1975); (3d Wiley, at 934 Cir. Tunnell v. (3d 1975); F.2d at n. 4 Cir. Litwicki v. 1857h-5(b)(l) 5. 42 permits U.S.C. party Pittsburgh Industries, Inc., Plate Glass aggrieved by the approval Administrator’s F.2d n. 4 any implementation plan to seek review in the appeals court of appropriate for the circuit seq. 1. 5 et days within 30 of the Administrator’s action. 2. Pub.L. 84 Stat. Although sought West Penn 1857c-4, Power variances 3. Under 42 U.S.C. Administra- plan’s limitations, from several of the emission primary tor is directed to fix national and sec- only the sulfur oxide ondary restriction is quality relevant ambient air standards for air appeal. this pollutants detracting public from the health or welfare. See 42 U.S.C. § 1857c-3. Primary quality ambient air standards are necessary, judg- those in the Administrator’s the Administra- barring injunctions 13, 1973, nent before DER September On Sep- to enforce the proceeding from request for a tor Penn’s on West

had acted variance, notice of violation EPA tember received from West Penn from Secretary and its DER preventing viola No. 33 was in that Boiler a notice order, response enforcing their Pennsyl federally approved tion of direct- application, variance Penn’s Subsequent implementation vania a scrubber. utility to install ing the granted DER September ly, on temporary variance from respect Motions dismiss with to all restriction, con emission granted by oxide were the sulfur the defendants the dis proceeding Penn’s upon West judge trial ditioned trict court. The concluded desul gas of a flue against installation action DER that the was barred device, to as a “scrub referred furization the Eleventh Amendment. As to the approved has not DER, that, Secretary the court ber.” held plan.7 Pennsylvania although variance the Eleventh did Amendment Penn, state’s suit, prohibit dissatisfied the district court conditioning upon variance the in had no because as the insofar scrubber, appealed the Pennsylvania stallation challenge suit was Envi order to DER’s plan, was barred Hearing Board.8 5(b)(2).11 event, ronmental In any U.S.C. § 1857h— judge held

the trial that he had no au the sued9 Administra Penn then West to interfere with the thority exercise of DER, EPA, and the Secre the the Secretary tor of the in discretion DER company request DER. the for tary issuing approval.12 variances EPA that West judgment declaratory fully more in the majority ed a As detailed of the Penn violation court, not in the opinion, relying district in and that implementation on 42 large measure U.S.C. 1857h- sylvania reject right Oil,13 no to 5(b)(2) Getty rejected had and also all the defendants achieving com for for proposal proffered the bases its to Penn’s West against a tall stack.10 The firm hear the suit the by use of Administrator pliance perma- and preliminary EPA. for the also asked by dispersing compounds accepted the from an EPA state im- concentrations 7. A variance approved by plementation plan area. must be over a wider the polluter is from fed- before the sheltered EPA provides, 11. 42 U.S.C. § 1857h-5 in relevant of the emission limitations eral enforcement part: implementation plan. contained the (b)(1) petition ... A for review of the 1857c-8; 1857e-5(d); 1857c-5(a)(3). §§ approving action in . Administrator’s procedure obtaining the a discussion of For plan under section variance, approval a see Train v. EPA of such . of this title . filed 1857c-5 be Council, Defense Resources Natural Appeals in the States Court of 43 L.Ed.2d 731 United Any appropriate peti- for the circuit. such the Penn did not ask West days be filed within 30 from the tion shall approve compel the the vari- Administrator ., approval such . . . date of . . ance, we not therefore decide wheth- need petition date if such is after such based sole- remedy would be available to er such a the arising ly grounds day. after such on 30th company. (2) Action of the Administrator with re- 4004(4.1), §§ 8. See 35 Pa.Stat.Ann. 4013.5 and spect to which review could have been 1710.41. 71 Pa.Stat.Ann. (1) paragraph obtained under shall not be judicial subject to in civil review or criminal original complaint Penn’s did not name 9. West proceedings for enforcement. Secretary a defendant. the secondary appeal primary Penn did the dismissal of ambient air 10. The majority quality affirms the dismissal as to issued the DER. The standards Secretary. permissible concentrations of define maximum atmosphere. A scrubber sulfur oxides in Ruckelshaus, Getty Oil Co. v. 467 F.2d 349 standards is to achieve these re- intended cert. denied 409 U.S. pollutants gases moving the from exhaust be- contrast, discharged. they In are tall fore atmospheric designed to are reduce stacks 1857h-5(b)(2) NOT DOES discerns, majority one of the SECTION theAs PENN’S SUIT BAR WEST that, pressed West Penn is arguments variance, a tall stack aside strategy permissible states, a majority is method com As the this Court’s in- implementation plan, Getty

plying terpretation in Oil of 42 U.S.C. is 1857h-5(b)(2) West Penn not contra therefore does not impede However, majority vening plan. attempt Penn’s trial court a contention does not that such states whether the company decide has fulfilled justiciable a issue between constitute responsibilities Pennsylva- its under the and the Administrator under seeking Instead of nia re- first, APA, because the issuance of EPA’s approbation of the view violation EPA is not notice implementation plan, Getty Delaware action,” second, agency be “final state variance delaying asked the Administrator invested with cause plan’s date of the effective restric- determining discretion in substantial sulfur content of tion fuels compliance procedures should be whether particular region in a burned disagree.14 I initiated. agencies The state state. administrative variance, but the denied temporarily state courts be liberally APA is to construed restrained Delaware from affording judicial review of enforcing the restriction. favor While the restrained, actions. In the however, words of so administrative state was landmark case of Harlan demanded compliance. Getty Justice Gardner, Laboratories Abbott this Court set aside asked EPA’s order “ provisions’ review ‘generous grounds primary quality on the air [of given ‘hospitable’ must inter already had standards been reached and APA] supervision Judicial pretation.” prior compliance, develop- agency precluded conduct is “unless alternative ment of technology, would persuasive reason believe that there impose unreasonable economic bur- purpose Congress.”16 the panel such was held The that we den. could not presump APA “embodies the basic posture the procedural of that case one judicial ‘suffering review to tion of economic technological entertain or ob- action, because of wrong agency plan. or the legal jections to or adversely aggrieved agen affected Getty interpreted section 1857h-5(b)(2) meaning the a within rele cy action judicial to foreclose later inquiry with ” 17 As Court recently this vant statute.’ respect to issues which could have been declared, in the context of case albeit appeals raised before court of in a suit express Congres an we found in which challenging federal approval of a state against judicial prohibition review sional implementation plan within days aft- question: agency action in of the approval. er such West Penn’s conten- that it has tion acted in conformity with agencies should not be able to however, Federal plan, the ment, Getty’s unlike argu- concept judi no behind retreat does not exception take to the va- Congress specifi review unless has cial lidity plan. of the At least with respect cally such a ban.18 authorized issue, to this West Penn in essence con- course, express opinion 14. Of I no Shaughnessy Pedreiro, on the mer- Id. See its West Penn’s claim (1955); that tall stacks are 99 L.Ed. 868 Rusk v. sufficient, Cort, issue which not addressed 7 L.Ed.2d 809 parties by the district court argued not briefed or here. 17. 387 S.Ct. at 1511. 136, 140-41, 15. 387 U.S. Romney, Pollard F.2d suit has been filed or enforcement legitimacy cedes issued, however, order compliance company asserts plan and This issue could not have it. obeyed violates knowingly who [a]ny person contesting a suit EPA’s raised been applicable of an im any requirement Thus section approval . plan . more plementation “clear and 1857h-5(b)(2) does not furnish days having after been noti than 30 evidence,” any evi- convincing or indeed the Administrator fied dence, Congress prevent intended to by a fine of not punished shall be question review of whether violation, $25,000per day of than more with the Penn- comply for not more than by imprisonment or by constructing a tall plan sylvania both.”23 year, one stack. obey a com for failure penalties the same as those for order are pliance THE SEPTEMBER NOTICE pollution days within 30 to abate failure OF VIOLATION BY EPA ISSUED violation.24 If a conviction notice of REPRESENTS FINAL AGENCY the offender’s section is not under first, ACTION are doubled.25 penalties notice whether the assess In order “finality” Determination agency “final” constitutes of violation agency action under the APA must be agency discretion “committed action pragmatically. viewed In Frozen Food meaning of the within by law” States, Express v. United for example, EPA’s characterization APA19—a had issued an order stating the ICC sustaining majority in by the made role specified goods qualify did not for the necessary to out court—it is the district “agricultural exemption commodities” proce statutory enforcement line statutory requirement that mo- Act. When Clean Air under dures possess permit tor carriers or certifi- any person EPA learns ever the Supreme cate. The Court ruled that this im federally-sanctioned aof in violation Although was a final order. the decree the Administrator plan, plementation attack did not directly command in violation of person notify the “shall plaintiff carrier to do or not to do plan in which the State plan act, any particular the Court considered finding.” the failure If of such applies justiciable final and the order because it beyond continues conform practical impact” had “an immediate and the notice of date of days from 30 violation, shippers: motor carriers and may com by The determination made the action in the Com- enforcement a civil mence abstract, is not re mission therefore theo- “may issue an order or retical, or academic. . . . The comply” with the person such quiring “order” of the Commission which clas- “shall not take such order Any plan.21 exempt sifies commodities as or non- to whom it is person until the effect is, indeed, exempt the basis confer for carri- opportunity to had an has issued ordering arranging the ers in and their concerning af- the with fairs. . . . Carriers who are Whether or violation.22 alleged 701(a) provides pertinent part: 1857c-8(a)(l). in 20. 42 U.S.C. U.S.C. § 19. 5 according provi- applies, chapter the This 21. Id. thereof, except to the extent that— sions 1857c-8(a)(4). 22. 42 U.S.C. § judicial (1) preclude statutes review . 1857c-8(c)(l). 23. 42 agency (2) agency action is committed to by law. discretion Id. provides part: in 5 U.S.C.A. Id. agency is no action for which there [F]inal remedy subject adequate in a court [is] other review. of the installation appropriate certifícate or meneement of a

without the multi dollar scrubber device30 they they permit, because believe million or the commodities, power exempt plant. run shutdown of carry prompt civil faced risks.26 choice is analo and criminal drug companies to that of the gous observed, the triad previously As I have Laboratories; drug if the Abbott manu Supreme Court decisions Frozen of wished to conform to agen facturers Food, Broadcasting27 and CBS Storer labeling requirements, cy’s overarching importance which an has particular beyond facts in reaches labels, must all [T]hey change their ad cases. In view of the in those volved vertisements, promotional and materi significance continuing to those afforded als; they destroy must stocks of print courts, principles decisions matter; must they invest heav ed in them “rule” of adopted constitute a type in new ily printing sup and new administrative law federal which favors plies. compliance The alternative to impact agency review where of ac serious would risk criminal is, case, ,31 as in this imm tion concrete and penalties civil . . . ediate.28 here, the notice of violation Thus like Here, proceedings within the further Abbott, regulation agency final necessary before the Ad agency are not impels company because action decision is enforceable ministrator’s dictates Administrat accede Penn.29 against West of vio notice or.32 lation, independent pro of further ceedings upon has coercive thus effect Also, the notice of violation here is utility. Continuation of West Penn’s reviewable as final action judi- because beyond strategy present compliance cial question resolution of the whether date of days from the the notice would proposed West Penn’s mode pollution of company subject possi render control is interdicted the state plan $25,000 bility day fine for each not unduly would disrupt the systematic impose continued violation would processing of the case within the EPA. corporate impris officers the risk relevant considerations in [T]he deter EPA’s interpretation onment if the mining finality are whether proc plan eventually ess administrative decision-making adjudicated correct. reached a stage where judicial re hand, will not disrupt On the other view compliance orderly proc adjudication construed ess Administra- whether rights require the obligations tor would immediate com- been determined.33 40, 43-44, expenditure 26. 351 question require in ex- (1956). See operation L.Ed. 910 United States v. $23 Storer million and that cess Co., Broadcasting equipment operating would increase costs (1956); Laboratories, annually. 100 L.Ed. 1081 Abbott $6.5 million The Administrator has 149-51, 87 disputed magnitude 387 U.S. at S.Ct. 1507. the order of these figures. Co., Broadcasting 27. United States Storer 192, 763, 351 U.S. 100 L.Ed. 1081 151-53, 387 U.S. 87 S.Ct. at 1517. (1956). Exchange 28. PBW Stock v. Securities and Ex Laundry 32. See also National Automatic Comm’n, change 718, 485 F.2d Shultz, Cleaning U.S.App.D.C. Council 1973) denied, (dissenting opinion), cert. (1971). (1974). 94 S.Ct. 40 L.Ed.2d 558 33. Port of Boston Marine Terminal Assoc. v. 1857c-8(e)(l). Transatlantic, Rederiaktiebolaget 29. See 42 represented 30. West Penn to the district court plant that of a the installation scrubber at failed to force into what the notice West Penn has so as The compliance Pennsylvania plan the considers with the adapt repre to EPA to day of beyond each violation an Administrator’s definitive in the Yet sents period day of the West Penn would plan. His conclusion initial terpretation Thus, a merely Nor incur substantial fine. tentative. did the possibly was potential the complaint present liability to the if its dis company’s because interpretation plan of the question hy an abstract or a good-faith incorrect, trict able, Penn may not situation. No further as admin pothetical matter, to defy the EPA for proceedings necessary practical were be a istrative period. Therefore, wheth- by any prolonged could be commenced the a suit fore process due the compelling compliance satisfied er or action, extracting proceeding, statutory penal enforcement plan is entirely within the Although timing of which may Administrator de ty. agency, provides of the an inade- enforcement when measures should control cide under the adjudi- APA and whether the forum agency quate should be taken rights of the compliance go directly cating utility. order34 or issue court, district those determina legislation state before the Su ordinarily will not include re-in tions in the historic Court case of Ex preme by the of the Administrator terpretation possessed Young a similar in terro parte plan. Thus there were case, course, effect.36 That rem arose administrative on-going functions no long before enactment the APA which could be disrupted by the any event and in involved state rather requested review West Penn. federal administrative than actions. The description of impact Court’s SHOULD NOT BE DENIED REVIEW however, legislation, may be instructive HERE BECAUSE OF THE POSSI- The railroads in Young sought here. an OF BILITY ENFORCEMENT PRO- adjudication rates set IN THE FUTURE CEEDINGS regulatory state commission were so low earlier, As discussed since the issue of confiscatory. imposed as to be law State compliance plan could not its $5,000 upof impris a fine as well as adjudicated in been an action tak onment for each transaction in which the exception approval federal ing charged regulated rate exceeded West Penn would be free to assert plan, stated, The Court “The rate. officers litigation any brought compel obe employees could expected not be plan to the compliance or to a dience provisions disobey any of the acts as in well suit to impose a order—as at the risk of such fines orders already penalty conformed —that being imposed upon them, penalties installing a tall stack. the court should decide case that the law possibility subsequent enforce valid. The result would be a denial however, proceeding, gen ment does not hearing to the company.”37 prevent review of erally agency action at request aggrieved where, party OF ENFORCEMENT THE PENNSYL- here, party may reasonably be VANIA IMPLEMENTATION into acquiescing in intimidated the ad PLAN NOT IS ACTION “COMMIT- ruling before he can obtain ministrative TED TO AGENCY DISCRETION at the hearing stage.35 enforcement BY LAW" SO AS TO PRECLUDE JUDICIAL REVIEW statutory scheme before us Under Judicial indefinitely delay consideration of West Penn’s that its tall power courts assertion stack voking strategy is in compliance Broadcasting, 34. A order was Storer issued to West February subsequent Penn on 100 L.Ed. decision the district court. 123, 441, 28 209 U.S. S.Ct. 52 L.Ed. 714 36. Laboratories, 136, Abbott 387 See 35. 87 1507, 681; L.Ed.2d 146, 18 United States v. 28 S.Ct. at Id. at 448. 320 pro not plan the state is with ed from Administrator’s

harmony exercise of left Congress has fact in by concluding discretion what hibited time deci the tactical what plan and in manner the to the should be by what method in order to when and enforced maximize the public sions effectively execute A benefit. resolution can most now the Although the plans. of the issue raised implementation exception the re an to be interpretation confined to an provides would APA those supervision plan in of the need in gime way “agency action is committed proper where interfere expedi- cases law,”38 that ex functioning agency discretion tious of the EPA. only in those dis applicable is ception where infrequent situations creet CONCLUSION intent expressed an explicitly Congress the APA embodies presump- Since executive judgment review, tion of federal since the issuance wholly unfettered. Su be branch in notice of violation of a context explained that this is “a Court preme grave immediate impact has an . . exception. . is very narrow [I]t alleged polluter, adjudication since rare instances where in those applicable polluter alleged a claim obey- is in such broad terms are drawn ‘statutes applicable ing plan law case there is no given in a interfere with discretion- ”39 apply.’ to the ary functions entrusted Adminis- aspects deci Although given some trator, judi- and since no other effective entirely committed may sion be available, is I would cial review hold that expert of an judgment administra policy upon furnishes a the APA basis which an tor, implicated standards are legal where polluter may alleged obtain a forum for persons ag available to are the courts resolution of prompt his claim that he the decision in order assure grieved has accommodated his conduct to the im- prop agency has adhered to the that the plementation carrying duty.40 in out its er standards There is a strong public interest in the nothing” approach An “all or to re expeditious resolution this type of dis- would, specific cases, viewability ei If West Penn relegated pute. to re- persons aggrieved by ther be unfair on some distant liance enforcement hear- action, impose agency unwise threat of a ing, $25,000-a-daypenalty upon agency or the courts. burden impel the may company undergo an Accordingly, separable appropri issues expense unnecessary of millions of dol- judicial determination to be ate for are lars, will have to borne either reviewed, though aspects other or, firm’s shareholders by the more like- may be agency action committed to ratepayers. ly, hand, its On the other if expertise agency’s and discretion.41 interpretation Administrator’s hand, correct, In the case at question plan is the absence of a hear- whether tall stacks meet air re- purity good ing, West faith con- applicable quirements implemen- imperil the public tinue health and legal tation issue wholly divorc- exceeding permissible welfare 701(a)(2). Planning Council, 41. East Oakland-Fruitvale 5 U.S.C. § See, g., Dunlop 471 F.2d at 533. v. Ba e. Volpe, Overton Park v. to Preserve 39. Citizens chowksi, 560, 1851, 44 28 (1975); Campaign Water, Clean 377 L.Ed.2d L.Ed.2d Train, (4th Inc. v. 1973); 489 F.2d Cir. States, Parker United 448 F.2d 797-98 Planning 40. East Oakland-Fruitvale Council v. Reddy, Dept. 1971); Labor, (10th Inc. v. Cir. Rumsfeld, (9th 1972); F.2d Cir. (5th 1974). 492 F.2d Cir. Shaffer, Scanwell Laboratories v. U.S.App. (1970); Cappadora D.C. Celebrezze, F.2d 1 pollutants. According concentration the cause to the remand dis

ly, I whether the for consideration

trict stack fulfills require tall

proposed plan.42

ments FRANK, Esther minor her

Gail guardian, Shirley parents and J. al., Appellants, et

Frank

v.

VOLKSWAGENWERK, A. G. OF GERMANY, Appellee,

WEST

v. Ann MUCKIN and Donald

Rosaria P. Miller, Third-Party Defendants.

No. 74-2150. Appeals, Court of

United States Third Circuit.

Argued May Aug.

Decided majority (1975); Romney, 42. Since the reaches (3d the merits of the Davis v. 490 F.2d 1360 dispute, applicability Although of the APA to this I reject- as- Cir. the district court sume, deciding, jurisdiction, if the APA without is not ed 1337 as a basis for it did so nature, jurisdictional apparently Zimmerman itself in reliance on section 1857h- States, 5(b)(2). majority’s statement, 330-31 United at fn. 1970), jurisdiction appeal would be under one of the ruling by that West Penn does not jurisdiction, appears general grants judge such as 28 the trial to take an unnecessari- Bachowski, Dunlop ly 1337. See view of restrictive Penn’s contentions. 44 L.Ed.2d

Case Details

Case Name: West Penn Power Company, a Corporation v. Russell Train, Administrator of the Environmental Protection Agency of Theunited States of America

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 15, 1975

Citation: 522 F.2d 302

Docket Number: 74-2050

Court Abbreviation: 3rd Cir.