On Petition for Review of the Order of the Administrator of the Environmental Protection Agency.
Before: Aldisert, Adams and Hunter, Circuit Judges.
The pivotal issue in this appeal is whether the Administrator of the Environmental Protection Agency is vested with the authority to disapprove a state implementation plan, or one of its provisions, drafted pursuant to the Clean Air Act Amendments of 1970, when the Administrator has found such plan to be "technologically infeasible."
Under the Clean Air Act Amendments of 1970, the Administrator of the Environmental Protection Agency is directed to promulgate national primary*fn1 and secondary*fn2 ambient air quality standards for each air pollutant designated by the Administrator as having an adverse effect upon the public health or welfare.*fn3
The states are each required to develop an air pollution control scheme by which the national ambient air quality standards may be achieved within each state. The implementation plan of each state must then be submitted for the approval of the Administrator.*fn4
Upon approval by the Administrator, the implementation plan developed by each state may be enforced by the Administrator, as well as the state. Under federal law, fines and sentences of imprisonment may be imposed on those who refuse to comply with the plan.*fn5 In addition, violators are subject to enforcement suits by private individuals.*fn6
St. Joe Minerals Corporation operates a zinc-smelting plant at Monaca, Pennsylvania. These facilities emit sulfur oxides, which are the subject of ambient air quality standards established by the Administrator.
During December, 1971, the Commonwealth of Pennsylvania held four days of hearings focused on controlling sulfur oxide pollutants. The Commonwealth then submitted its implementation plan to the Administrator in January, 1972. The regulations published by the Administrator to assist the states in formulating their implementation plans included "Examples of Emission-Limitations Attainable with Reasonably Available Technology."*fn7 One of the examples was a standard for zinc smelters, such as that operated by St. Joe. The Pennsylvania implementation plan, however, which contained only one standard governing all existing sources of sulfur oxide emissions within the state, concededly was substantially more stringent, when applied to a smelter, than the Administrator's example.*fn8 Without conducting further hearings the Administrator in May, 1972, approved Pennsylvania's plan in part and disapproved it in part.*fn9
St. Joe filed with this Court a petition challenging the Administrator's approval of that portion of the Pennsylvania implementation plan relating to sulfur oxide emissions.*fn10 St. Joe alleged that the Administrator had not fulfilled certain procedural requirements, and asked that the case be remanded to the EPA. On January 22, 1973, this Court granted the motion for a remand without specifying the type of procedure to be followed by the EPA on the remand. The EPA moved for clarification of the order or for a rehearing. On the motion for clarification, after consideration of the record of the state proceedings, this Court stated that it was not convinced that St. Joe had been afforded "a truly meaningful hearing" regarding the technological and economic feasibility of the Pennsylvania implementation plan. Moreover, the Court indicated that events since the state proceedings may have rendered the plan outdated. The EPA, therefore, was ordered either to grant St. Joe a limited hearing on the technological and economic feasibility of the plan or to suspend enforcement of the plan against St. Joe while the company pursued "with due diligence" state administrative and judicial remedies for its unfeasibility claims.*fn11
Pursuant to this Court's ruling, the EPA elected to conduct an administrative hearing on the feasibility of the plan. After considering written and oral presentations by St. Joe, the Commonwealth and the EPA staff, the Administrator, in a decision announced March 18, 1974, concluded that the Pennsylvania provisions relating to sulfur oxide emissions "as applied to St. Joe Minerals Corporation's smelter . . . [are] technologically infeasible." He therefore did not reach the question of economic feasibility. The Administrator, however, interpreted the Clean Air Act Amendments "as precluding any disapproval of the plan on that basis." He proposed instead to notify the Commonwealth of his finding of technological infeasibility and to request a revision. Furthermore, he proposed to stay federal enforcement of the plan pending state administrative and judicial review of the plan.
St. Joe petitioned this Court to review the Administrator's refusal to disapprove the plan, alleging that the Administrator's refusal was based on an ...