APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 73-1083).
Van Dusen, Adams and Garth, Circuit Judges. Adams, Circuit Judge, dissenting.
VAN DUSEN, Circuit Judge.
This appeal challenges a June 19, 1974, district court order dismissing West Penn Power Company's amended complaint for lack of jurisdiction.*fn1 The dismissed complaint sought injunctive and declaratory relief protecting West Penn from any duty to comply with the particulate and sulfur compound emission standards established as part of Pennsylvania's implementation plan*fn2 pursuant to the Clean Air Act, 42 U.S.C. § 1857 et seq.*fn3
West Penn did not file a petition for review under 42 U.S.C. § 1857h-5(b)(1)*fn4 to challenge the implementation plan when it was approved, but petitioned the Pennsylvania Department of Environmental Resources (DER) for a variance*fn5 from the particulate, visible, and sulfur compound emission standards applicable to Boiler No. 33 of West Penn's Mitchell Power Station. On September 13, 1973, before DER had acted on its variance request*fn6 West Penn received from EPA a Notice of Violation*fn7 charging that the Mitchell Power Station was in violation of the applicable particulate and sulfur compound emission standards. Thereafter, on September 19, 1973, DER granted West Penn a temporary variance until June 30, 1976, from the sulfur emission standards.*fn8 The variance, however, rejected West Penn's proposal that it use a "tall stack" and low sulfur coal to meet the standards;*fn9 installation of a "scrubber" device for controlling sulfur compound emissions was a condition of the variance. This temporary variance has not been approved by EPA.*fn10
West Penn first appealed DER's variance order to the Pennsylvania Environmental Hearing Board*fn11 and then, on December 20, 1973, filed this action against the Administrator of EPA, Train, the Secretary of DER, Goddard, and DER.*fn12 The complaint, as amended,*fn13 asked for a declaratory judgment both that the tall stack scheme for effecting compliance with Pennsylvania's implementation plan could not be rejected by the defendants and that West Penn was not presently violating the plan. West Penn also sought preliminary and permanent injunctions against EPA enforcement of the September 13, 1973, Notice of Violation and DER enforcement of the order to install a "scrubber."*fn14 Jurisdiction was predicated upon "the Clean Air Act, 42 U.S.C. § 1857 et seq., specifically 42 U.S.C. § 1857h-2 [entitled "Citizen suits - Establishment of right to bring suit"];*fn15 The Administrative Procedure Act, 5 U.S.C. § 701 et seq.;*fn16 The Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202; and 28 U.S.C. § 1337."*fn17 Amended Complaint, P6, Civil Action No. 73-1083, Document #20 (W.D. Pa.).
On June 19, 1974, after the three defendants had filed F.R. Civ. P. 12(b) motions to dismiss for lack of subject matter jurisdiction,*fn18 the district court dismissed the amended complaint in its entirety, as to all defendants. The court first determined that it lacked jurisdiction over the EPA Administrator, Train. Relying on 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), the district court concluded that neither the Declaratory Judgment Act (DJA) nor the Administrative Procedure Act (APA) furnished a jurisdictional base for West Penn's suit against Train.*fn19 No jurisdiction lay under § 1857h-2 because West Penn had not given Train 60 days' notice of the suit, as required by that section.*fn20 Having thus rejected each of West Penn's jurisdictional claims,*fn21 the district court went on to find that, in any event, 42 U.S.C. § 1857h-5(b)(1) and (2)*fn22 foreclosed district court jurisdiction over the action. Since the district court determined that all issues raised in the complaint could have been brought before the court of appeals in an action challenging the Pennsylvania implementation plan, it held that West Penn's exclusive recourse against Train was a proceeding under 42 U.S.C. § 1857h-5(b)(1).
As to DER, the court held the action barred by the Eleventh Amendment.*fn23 The court also concluded that it lacked jurisdiction over the Secretary of DER, Goddard. The court viewed West Penn's assertion that DER lacked power to reject a "tall stack" or to direct installation of a "scrubber" as, essentially, a challenge to the Pennsylvania implementation plan. Such a challenge could be brought only in the court of appeals pursuant to 42 U.S.C. § 1857h-5(b)(1) and (2). The district court opinion recognized that a variance from the air quality standards would remedy West Penn's complaint, but noted that the temporary variance issued by DER on September 19, 1973, was ineffective without EPA approval, which the court could not compel.*fn24 This lack of jurisdiction over the EPA Administrator, Train, rendered federal court intervention "futile," since Goddard could not grant a variance or approve a "tall stack" without EPA concurrence. Finally, the court found that Pennsylvania law (35 Purdon's Pa. Stats. § 4004(4.1)) offered West Penn ample relief, without any need for federal intervention.
West Penn filed a timely motion for reconsideration challenging the dismissal of the complaint only as to Train and Goddard. On September 10, 1974, after the district court denied the motion, West Penn lodged this appeal. Although it is not clear precisely which aspects of the district court's decision West Penn is appealing,*fn25 we will treat the appeal as raising the following three questions:
(1) whether the district court properly concluded that § 1857h-5(b)(1) and (2) required dismissal of the complaint as to both Train and Goddard;
(2) whether the district court has jurisdiction under the APA*fn26 of matters raised in the complaint; and
(3) whether due process requires the district court to assume jurisdiction and decide the issues raised in the complaint.
I. EXCLUSIVITY OF THE REVIEW PROVIDED IN 42 U.S.C. § 1857h-5(b)(1) and (2)
West Penn claims that EPA could not cite the utility for violating Pennsylvania's implementation plan since West Penn, by filing a petition for a variance on September 15, 1972, received an automatic stay of prosecution for violation of the particulate and sulfur compound emission standards. This argument relies on 25 Pa. Code § 141.5, which provides:
"(a) A petition which complies with the requirements of § 141.11 of this Title (relating to filing), and which is received by the Department within six months of the effective date of this Chapter, shall operate prospectively as an automatic stay of prosecution for violations of those provisions of this Article with respect to which the variance is sought, until one year after the effective date of this Chapter or until the Department takes action on such petition, whichever occurs first, except that the filing of a petition for a variance, or the grant thereof, shall not relieve the petitioner from full compliance with any orders and permits previously issued or any stipulations and agreements previously entered into by the Department, nor shall such filing in any way preclude the Department from pursuing any and all remedies available to it, at law or in equity, to enforce such orders, permits, stipulations, or agreements."
West Penn avers that this stay was in effect on September 13, 1973, "and will remain so at least through June 30, 1975." Brief for Plaintiff-Appellant at p. 10, n.3.
In addition, West Penn argued, both in its brief at 9 and before this court, that it has a variance from DER, granted September 19, 1973, which exempts it from complying with the sulfur emission standards until June 30, 1976.*fn27 This contention that West Penn is not in violation of the plan thus poses no challenge to "the Administrator's action in approving or promulgating any implementation plan," 42 U.S.C. § 1857h-5(b)(1); rather, it relies on the validity of the plan provisions for granting variances. We therefore agree with West Penn that this particular contention could not have been raised in a § 1857h-5(b)(1) proceeding. It follows that the district court erred in finding that subsection (b)(2) barred its jurisdiction to decide this claim.
It also appears that subsection (b)(2) would not foreclose the district court from deciding whether a tall stack was a proper method of complying with the plan. The plan prescribes certain air quality standards which must be met, not specific methods of attaining those standards. A subsection (b)(1) suit would challenge only the plan - that is, the standards, and not the methods of compliance. Thus, subsection (b)(2) would not prevent West Penn from raising the tall stack issue in the district court.*fn28 See, generally, Note: Reviewability of Administrative Action: The Elusive Search for a Pragmatic Standard, 1974 Duke L.J. 382, 384; L. Jaffe, Judicial Control of Administrative Action, 353-63, 372-76 (1965). However, unless there was an affirmative grant of jurisdiction in the district court, the dismissal for lack of jurisdiction was still proper.
II. JURISDICTION UNDER THE ADMINISTRATIVE PROCEDURE ACT AND THE DECLARATORY JUDGMENT ACT
The district court relied on this court's decision in Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 35 L. Ed. 2d 256, 93 S. Ct. 937 (1973), for the proposition that neither the DJA, 28 U.S.C. §§ 2201 and 2202, nor the APA, 5 U.S.C. § 701 et seq., could "afford a basis for jurisdiction." 467 F.2d at 356. See also PBW Stock Exchange, Inc. v. SEC, 485 F.2d 718 (3d Cir. 1973); Zimmerman v. United States, 422 F.2d 326 (3d Cir.), cert. denied, 399 U.S. 911, 26 L. Ed. 2d 565, 90 S. Ct. 2200 (1970). The plaintiff in Getty had filed suit in the Delaware district court, attacking certain regulations which had been approved by the EPA Administrator as part of that state's implementation plan under the Clean Air Act. The district court determined that jurisdiction was properly invoked under 28 U.S.C. § 1337, the DJA, and the APA. On appeal, this court rejected the jurisdictional claim, finding that neither the DJA nor the APA extended federal court jurisdiction "to cases not otherwise within their competence." 467 F.2d at 356.
West Penn asserts that the district court's holding and, presumably, Getty are inconsistent with the Supreme Court's opinion in Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). Abbott Laboratories, appellant contends, clearly mandates district court jurisdiction under the APA to review the administrative action contested by West Penn's complaint. The above cited cases (for example, Zimmerman, supra) show that the APA does not constitute a jurisdiction grant*fn29 and hence we must affirm the district court's dismissal in this case. However, assuming, arguendo, that it did constitute such a jurisdictional grant, we would still be required to affirm such dismissal.
The APA provides, in certain instances, for judicial review of agency action. 5 U.S.C. § 701(b)(1) defines "agency" as "each authority of the Government of the United States. . . ." The APA does not extend to state agencies. Thus, it could not afford the district court jurisdiction of West Penn's suit against Goddard, who is the Secretary of a Pennsylvania agency.
As to Train, the complaint set forth two requests for relief. First, it asks that the court render a declaratory judgment that West Penn was not violating the plan as a means of preventing Train from citing the utility for acting contrary to the plan. Second, it asked an injunction against enforcement of any notice of violation. According to 42 U.S.C. § 1857c-8(a)(1), the "Administrator shall notify" any "person in violation of the plan. . . ." Issuance of a violation notice is thus non-discretionary. However, the decision to enforce a violation notice is discretionary under 42 U.S.C. § 1857c-8(b).*fn30 The APA does not provide for review of any act "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). See Commonwealth of Ky. ex rel. Hancock v. Ruckelshaus, 497 F.2d 1172, 1177 (6th Cir. 1974). Thus the APA would not provide jurisdiction for the district court to issue the requested injunction. Jurisdiction to issue the requested declaratory judgment is similarly wanting under 5 U.S.C. § 704, which subjects to judicial review only "agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court . . . ." West Penn cites, and we have found, no statute which makes reviewable Train's issuance of a notice of violation. Under the statutory plan, the notice of violation is not "final agency action" since it may be followed by either (1) an order which "may" be issued 30 days after the notice, 42 U.S.C. § 1857c-8(a)(1), but "shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator concerning the alleged violation," 42 U.S.C. § 1857c-8(a)(4), or (2) a civil suit under 42 U.S.C. § 1857c-8(b), referred to above. The statutory scheme contemplates that the violation notice itself has neither an independent coercive effect nor "the force of law." Columbia Broadcasting System v. United States, 316 U.S. 407, 418, 86 L. Ed. 1563, 62 S. Ct. 1194 (1942). The notice bears no resemblance to the Food and Drug Administration regulations which were found reviewable in Abbott Laboratories and Gardner v. Toilet Goods Association, 387 U.S. 167, 18 L. Ed. 2d 704, 87 S. Ct. 1526 (1967). The Court characterized the regulations challenged in Abbott and Toilet Goods as "formal," "definitive," "effective upon publication" ...