Appalachian Power Company v. Environmental Protection Agency

No. 72-1733 (4th Cir. June 13, 1978)

ELR Digest

This is the second opinion of the court in litigation arising over the Environmental Protection Agency's (EPA's) approval, pursuant to § 110 of the Clean Air Act, 42 U.S.C. § 7410, of West Virginia's state implementation plan (SIP). Following the earlier decision, 477 F.2d 495, 3 ELR 20310 (4th Cir. 1973), in which the court found premature petitioners' challenge to the Administrator's approval of the SIPs of three states and declined to grant relief, the parties stipulated to a remand order under which petitioner utilities would submit to EPA a detailed statement of their objections to the West Virginia SIP. EPA would then review the administrative record and issue new proposed findings with respect to the West Virginia plan. After further comments by petitioners, EPA would take final action at which point petitioners would again be entitled to seek judicial review of the final determination.

The statement of objections submitted by petitioners pursuant to the remand order raised essentially two points: the SIP's limitations on particulate and sulfur dioxide emissions were (1) more strict than necessary to achieve the national ambient air quality standards, and (2) economically or technologically impractical. After the agency issued proposed new findings, but before it issued its final determination, the United States Supreme Court decided, in Union Electric Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976), that the Administrator is without authority, when reviewing SIPs under the Clean Air Act, to consider either whether the emission limitations are economically or technologically feasible or whether they are more strict than necessary to meet national standards. On the basis of this decision, EPA reaffirmed its approval of the West Virginia plan and moved the court for dismissal of petitioners' suit. The instant decision responds to this motion as well as a motion by petitioners to remand.

The court upholds the agency's determination that Union Electric forecloses its consideration of either the feasibility or undue strictness of the state plan. The principal remaining issue presented by the motion for remand is whether EPA erred in approving the plan because of the inadequacy of the hearings held by the state prior to its development. It is unquestioned that the state hearings comported with the Act's requirement of "reasonable notice and public hearings"; the petitioners contended, however, that the hearings were constitutionally flawed in three respects. First, petitioners alleged that the director of the State Air Pollution Control Commission recommended the inclusion of certain limitations at such a late date that petitioners had no meaningful opportunity to respond thereto. The court concludes that regardless of whether a constitutional violation has been established, the fact that the specific recommendations were ultimately rejected moots the issue. Petitioners' second objection is directed at similar but separate testimony given by the same individual. The court dismisses this objection on the grounds that petitioners were and will in the future be given additional opportunities to rebut the official's testimony. Petitioners' final challenge to the adequacy of the state hearings was that they were given insufficient advance information as to the basis of the proposed SIP at which to direct an effective rebuttal. The court precedes its rejection of this argument by finding that the state hearings were more in the nature of an informal rule making than an adjudicatory hearing and therefore required less advance notice to the parties. That sufficient factual information was made available to the parties is shown by an affidavit filed with the court by the chairman of the state agency. Further, that petitioners in fact received such information is evident from the detail and scope of their objections to the plan submitted to EPA. Petitioners' further argument that EPA's approval of the plan is vitiated by its failure to respond exhaustively to the comments received is not well taken in the context of an informal rule making.

The court addresses two final issues. It is not timely to challenge EPA's failure to address petitioners' original objections regarding the state plan's opacity standard. The opportunity to make this objection was lost when not raised again in the submission filed with the agency pursuant to the stipulated remand order. Petitioners also err in their argument that EPA illegally failed to review the state plan in light of the report of the SIP prepared pursuant to the Energy Supply and Environmental Coordination Act, 15 U.S.C. §§ 791-798, ELR STAT. & REG. 41231. Such reports are purely advisory in nature and do not require either the states or EPA to respond substantively. The federal defendants' motion to dismiss is therefore granted.

Judge Widener, concurring, would find the controversy moot because the bulk of the SIP provisions of which petitioners complain have been revised substantially since the commencement of the litigation.

The full text of this opinion is available from ELR (25 pp. $3.00, ELR Order No. C-1158).

Counsel for Petitioners
H. Edward Dunkelberger, Jr., Theodore L. Garrett
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Respondents
Bethami Auerbach; Jerome Ostrov, Deputy Ass't General Counsel
Environmental Protection Agency, Washington DC 20240
(202) 755-2511

James W. Moorman, Ass't Attorney General; Edmund B. Clark, Neil T. Proto
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2701

Russel, J., with Field and Widener, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]