Before Hastie, James Rosen and Hunter, Circuit Judges.
This appeal is taken from an order of the district court 342 F.Supp. 1006, denying applications for preliminary and permanent injunctions and a temporary restraining order staying the effect of a compliance order issued by the Administrator of the Environmental Protection Agency (EPA). The Administrator issued the order pursuant to Section 113 of the Clean Air Act as amended by the Air Quality Act of 1967 and the Clean Air Act amendments of 1970, 42 U.S.C. § 1857 et seq.
Getty operates an oil refinery in Delaware City, New Castle County, Delaware. One of the by-products of its refinery operation is fluid petroleum coke. Delmarva Power and Light Company (Delmarva) operates a power station for Getty. The power station was designed to burn fluid coke along with either fuel gas or oil. Delmarva burns the fluid coke produced by Getty under a long term contract with Getty and thereby supplies the electricity and steam requirements of the refinery.
On October 13, 1970, after a public hearing on proposed air pollution regulations for Delaware was held,*fn1 the State Water and Air Resources Commission adopted Regulation IX*fn2 limiting the amount of sulphur content of fuel burned in New Castle County south of United States Route 40 by fuel burning equipment having a maximum rate of heat input equal to or greater than 500,000,000 b.t.u. per hour to 3.5%. The Delmarva power station is the only installation presently operating such equipment in the area.*fn3
On August 4, 1971, Regulation IX was approved along with other sections of Delaware's implementation plan by the Administrator of EPA. As the court below noted in its opinion of May 10, 1972, "[while] this approval received substantial publicity at the time and presumably came to Getty's attention shortly after the action was taken, notice of the approval was not published in the Federal Register until February 3, 1972."
Since approval by the EPA of Delaware's implementation plan no petitions for review of the Administrator's action have been filed pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 1857h-5,*fn4 by Delmarva or Getty.
On September 28, 1971 Getty submitted a request to the Secretary of Natural Resources and Environmental Control of the State of Delaware for a "variance" from the January 1, 1972 effective date of the regulation. 7 Del.C. § 6007. The basis for the application was simply that, since the national primary standards for sulphur dioxide were already being met in New Castle County, there was no compelling reason why Getty should not be given additional time to meet the emission standards of Delaware's implementation plan.*fn5 On December 28, 1971, the Secretary denied Getty's application.*fn6 Getty then took an appeal to the Water and Air Resources Commission (WARC).*fn7
On December 29, 1971, Getty instituted an action in the Delaware Chancery Court seeking a temporary restraining order against enforcement of the challenged regulation by the state Secretary pending disposition of Getty's appeal to the Delaware Water and Air Resources Commission. The restraining order was granted on December 30, 1971.*fn8
On February 14, 1972, Region III of the EPA sent a certified letter to Delmarva pursuant to section 114(a) of the Clean Air Act requesting information dealing with the sulphur content of fuel burned by Delmarva during January, 1972. Delmarva submitted the requested data on February 18, 1972, and later updated the information contained in the February 18 letter by submitting data for February and March 1972. For each month the data submitted indicated a violation of Regulation VIII in that the total content of the sulphur by weight exceeded 3.5%. The Administrator notified Delmarva of the violations by registered letter dated March 6, 1972. On March 20, 1972 a conference was held with representatives of the EPA and Delmarva. 42 U.S.C. § 1857c-8(a)(4). Getty requested and was given permission to attend the conference. As a result of the data supplied by Delmarva, the EPA concluded that a violation of the subject regulation had occurred "in that Delmarva was burning, at its Delaware City, Delaware power station, fuel with a sulphur content in excess of 3.5% by weight."*fn9 The EPA also found that the violation had continued beyond the 30th day after the date of the Administrator's March 6, 1972 letter. On April 17, 1972 the order seeking compliance with Regulation VIII was issued, 42 U.S.C. § 1857c-8(a)(1), fixing May 1, 1972 as the deadline for compliance.*fn10
Getty filed this suit on April 21, 1972 and a hearing on its application for a temporary restraining order was held on April 27, 1972. The Administrator voluntarily agreed to suspend the effectiveness of the compliance date until May 10, 1972.
The district judge expressed his conception of Getty's application in this fashion:
"While Getty expressly disavows any claim that the regulation is invalid as a 'generally applicable regulation', Getty does allege that it is arbitrary and unreasonable in its application to plaintiff and that its enforcement as to plaintiff would be in violation of the requirements of the Fourteenth Amendment to the Constitution of the United States. (Emphasis in text) * * * As I understand it, however, the arbitrariness and unreasonableness of the regulations result from the alleged facts (1) that the national primary standards for sulphur dioxide have already been achieved in New Castle County and the regulation is accordingly wholly unnecessary to achieve and maintain that standard, and (2) that compliance with the regulation at least prior to development of an alternative technology would impose an unreasonable hardship on Delmarva and Getty. In connection with this latter point Getty asserts that it has applied for a variance on the basis of this hardship and that enforcement of the regulation prior to a determination of its appeal from the Secretary's denial of a variance would deprive it of procedural due process."
The compliance order is alleged to be arbitrary, capricious and unwarranted by the facts. Its enforcement prior to a due process hearing would, Getty claims, amount to a taking of property without due process of law. Getty also alleges invalidity of the order due to non-compliance with the ...