Bunker Hill Co. v. Environmental Protection Agency

No. 75-3670 (9th Cir. December 28, 1977)

The court denies the Environmental Protection Agency's (EPA's) petition for rehearing in a case in which several aspects of the Agency's disapproval of the Idaho air quality implementation plan were invalidated, but clarifies several points in its earlier opinion, 7 ELR 20681. The court notes that § 301 of the Clean Air Act Amendments of 1977 leaves no doubt that state implementation plans must require the use of constant emission controls, and emphasizes that its ruling does not reach the issue of whether the EPA Administrator must consider the economic feasibility of mandated control measures. The court's decision is limited to remanding the case for further consideration of the technological feasibility of the proposed EPA standards, and does not focus upon the issue of whether the Agency bears the burden of showing that a specific control technology is feasible. The Agency is directed to enter a final order in this matter within six months.

Counsel for Bunker Hill Co.
Edwin H. Seeger
Prather, Seeger, Doolittle, Farmer & Ewing
1101 16th St. NW, Washington DC 20036
(202) 296-0500

Counsel for Environmental Protection Agency
Jerome Ostrov
Office of General Counsel
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 755-2500

Before SNEED and KENNEDY, Circuit Judges, and POOLE,^* District Judge.

[8 ELR 20145]

The Administrator's petition for rehearing has been carefully considered by this court. We have been mindful during our deliberations of the enactment of the Clean Air Act Amendments of 1977, Pub.Law 95-95, 91 Stat. 685 (1977), subsequent to the filing of our opinion in this case.

We find nothing in the 1977 Amendments or otherwise to alter our position that national ambient air quality standards must be met, to the extent possible by constant emission controls. Whatever doubt there may have been about the correctness of that position was eliminated by the 1977 Amendments. See Section 301, Clean Air Act Amendments of 1977. To the extent a state plan does not require such controls it may be modified by the Administrator to bring it into line with this basic necessity. 42 U.S.C. § 1857c-5(c)(1). We express no opinion with respect to the effect, if any, of section 123 of the Clean Air Act Amendments of 1977 on the operations of the Bunker Hill Company.

In our opinion we indicated that the Administrator could mandate a particular constant emission control when it was technologically and economically feasible. Because we were unable on the basis of the record before us to conclude that the Administrator's required constant emission control was technologically feasible, rather than "purely theoretical or experimental," we remanded the case for further consideration of the issue of technological feasibility and did not address Bunker Hill's objections as to economic feasibility. The Administrator, in his petition for rehearing, urges us to delete economic feasibility as a consideration in determining whether a particular constant emission control is possible. He insists that this deletion is required by the 1977 Amendments. We recognize that this contention is not without force. However, we believe it better at the present time to defer any consideration of this issue. For present purposes it is sufficient to recognize that the issue is an open one and that our opinion must be read as modified to the extent such recognition so requires it to be. Our remand, therefore, remains, as before, limited to the technological feasibility of the proposed EPA standards.

The Administrator in his petition for rehearing also contends that our opinion imposes on him the burden of designing and engineering the control technology modification needed by a source to comply with an emission limitation. Moreover, he insists that our opinion suggests that the burden of persuasion is upon him to show that a specific control technology is technologically and economically feasible. In our opinion we do not focus on burden of proof issues. We reviewed the action of the EPA in rejecting the State of Idaho's plan in accordance with the usual standards of review employed by courts in reviewing actions by administrative agencies. Such actions must reflect an exercise by the administrator of "reasoned discretion" and not a "crystal ball inquiry." We held, and on this rehearing do not depart from that holding, that the Browder sulfur burner proposal on the basis of the present record is purely theoretical and experimental. It follows from that holding that the Administrator's action in rejecting the state plan on the basis of the Browder proposal did not reflect an exercise of "reasoned discretion" and thus was arbitrary and capricious. We said no more than this is our opinion.

The Administrator's petition for rehearing raises many interesting additional issues regarding the effect of the 1977 Amendments which we decline to pursue. To do so in the present setting of this case would involve our rendering an advisory opinion. This we cannot do.

The Administrator's petition for rehearing, except as indicated herein, is denied. The sixth-month period within which the EPA is required to enter its final order in this matter shall commence with the date this order is filed.

* Hon. Cecil F. Poole, United States District Judge for the Northern District of California, sitting by designation.