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Duquesne Light Co. v. Environmental Protection Agency

decided: June 5, 1973.



Adams, Rosenn and Hunter, Circuit Judges.

Author: Adams


ADAMS, Circuit Judge.

Resolution of the motion presently before the Court*fn1 requires that we address difficult procedural problems arising from the recently enacted programs for the abatement of air pollution.

Duquesne Light Company (Duquesne), Pennsylvania Power Co. and Ohio Edison Co. are engaged in Western Pennsylvania in the generation of electric power by burning coal. St. Joe Minerals Corp. (St. Joe) produces electricity and zinc, also using coal as the fuel. Pursuant to the new clean air programs, Pennsylvania enacted a series of regulations, comporting with federal standards and federally enforceable. Duquesne, Pennsylvania Power, Ohio Edison and St. Joe (collectively, the companies), required the Pennsylvania regulations to limit their omission into the air of polluting sulphur oxides, challenged the Federal Environmental Protection Agency's (EPA) adoption and potential enforcement of these restrictions in the absence of hearings, inter alia, and petitioned this Court to remand the matter to the EPA for such a proceeding.

Although the remand motions requested several alternative forms of relief, the order of this Court, granting the motions, did not specify which among the several types of relief was to be afforded. The EPA, opposing the remand directive, filed the motion that we now consider. This motion, styled a "Motion for Clarification, or in the Alternative Petition for Rehearing," is responsive to the Court's original order, which in all candor was somewhat enigmatic. This opinion will endeavor to dispel the uncertainty.

Unsnarling the rather intricate procedural knot presented by the motion currently before us requires a careful tracing of the several strands comprising it. This task, in turn, entails an examination of: (1) the Clean Air Act Amendments of 1970 (Act or Clean Air Act) 42 U.S.C. §§ 1857-1858a, (2) the division of authority between states and the EPA contemplated by the Act, (3) the bearing of the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., on the Clean Air Act, (4) the implications of this Court's decision in Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S. Ct. 937, 35 L. Ed. 2d 256 (1973), and (5) the requirements of due process as mandated by the Fifth Amendment.


In enacting the Clean Air Act Amendments of 1970, Congress attempted to foster a symbiosis between two perceived needs. First, Congress wanted to preserve the basic state and local control of the design and enforcement of air pollution regulations. Besides a deference to the states, such a state role permitted more awareness of individual and local problems to be considered in formulating pollution abatement plans.

Second, Congress sensed that there was a rising dissatisfaction with the results being attained by the states, operating under the then existing legislation. Therefore, there was a desire for federal standards and enforcement. Further, Congress, apprised of the public concern, manifested its insistence on expedition in cleaning the air.*fn2

The result of these two conflicting strains was that Congress, in the 1970 Amendments, devised a system in which certain aspects of the pollution control effort were assigned exclusively to the EPA, other aspects being entrusted to the states under federal supervision.

An understanding of the EPA's role in the bi-level program established by the Clean Air Act requires a brief exposition of the sections of the Act pertinent to the dispute here. Section 108 of the Act*fn3 mandated that within thirty days after December 31, 1970, the Administrator of the EPA was to determine which emissions into the air were pollutants, adversely affecting public health or welfare. Section 109*fn4 dictated that roughly contemporaneously, to promulgate regulations establishing national primary and secondary ambient air quality standards.*fn5 These standards defined the maximum concentration to be permitted in the air of any pollutant ascertained under section 108. Written comments by interested parties were to be submitted prior to the final promulgation of these standards, and following Kennecott Copper Corp. v. Environmental Protection Agency, 149 U.S. App. D.C. 231, 462 F.2d 846 (1972), the Agency was to provide statements in support of its proposed regulations.*fn6 Thus, pursuant to sections 108 and 109, the Administrator was to determine the minimum acceptable level in the air of any particular pollutant. Section 110*fn7 defined the procedures to be followed to achieve and then maintain these or higher standards of cleanliness. Because the attainment required that choices be made between different sources of pollutants, with some sources perhaps more severely restricted than others, the Act left to the states the drafting of plans for reaching these federally established standards. More specifically, § 110(a)(1)*fn8 required that, within nine months of the Administrator's promulgation of the ambient air standards, each state was to adopt and submit to the Administrator a plan that would bring the air quality within the state at a minimum, to the federally mandated levels. The "state implementation plan" was to be enacted only after reasonable notice and hearings were held by the state.

Section 110 then continues:

"The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or each portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing."*fn9

The question of which procedures are required of the Administrator, if any, in determining whether to approve a state implementation plan as provided in § ...

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