Anaconda v. Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973)

ANACONDA CO. v. RUCKELSHAUS, 482 F.2d 1301 (10^th Cir. 1973)

WILLIAM E. DOYLE, Circuit Judge.

This is an action instituted in the United States District Court for Colorado by Anaconda Copper Company of Butte, Montana, seeking injunctive relief against various officials of the Environmental Protection Agency. Plaintiff sought relief against the promulgation of a proposed rule controlling emissions of sulfur oxide in Deer Lodge County, Montana unless and until defendants-appellants conduct an adjudicatory hearing and unless and until it promulgates an environmental impact statement. The district court granted the requested relief . . ..

The suit was instituted here September 26, 1972. The trial court heard testimony on the preliminary injunction request for three days at the completion of which the mentioned declaratory judgment and injunctive relief were issued.

As a partial basis for jurisdiction, the trial court invoked 42 U.S.C. § 1857h-2 authorizing citizen suits to enforce the Act. The trial court also considered the case as one in which the plaintiff’s constitutional rights were in jeopardy and reasoned that the emergency relief was justifiable on this ground.

[The question presented to this court on appeal is] whether the Environmental Protection Agency is obligated to grant to Anaconda an adjudicatory hearing with the right to subpoena and cross-examine witnesses before promulgating or indeed holding further hearings on its proposed regulation under § 110(c) of the Clean Air Act Amendments. The crucial aspect of the case is then the validity of the proposed EPA regulation for the control of sulfur oxide emissions in Deer Lodge County, Montana where Anaconda operates its smelter. The company is the only significant source of sulfur oxide pollution in the county and so concededly the proposed regulation, although general in form, would apply to Anaconda alone.

Preliminary to the issuance by EPA of the proposed regulation, efforts were made to persuade state officials to issue a plan as required by the Clean Air Act Amendments of 1970. The Montana State Board of Health held a public hearing on Montana’s proposed implementation plan. Anaconda was present and presented its views on the state’s proposed regulation for restricting sulfur oxide emissions. Following this hearing, Montana submitted to the EPA an implementation plan, but the provision for control of sulfur oxide emissions was omitted. The state plan then was disapproved by the EPA on May 31, 1972 insofar as it excluded the sulfur oxide emissions provisions. Following this action the administrator of the EPA, on July 27, 1972, proposed a regulation to control the emission of sulfur oxide within the County. This proposal would have limited emissions to a discharge of 7,040 pounds of sulfur oxides per hour. At the same time, EPA gave notice of intent to hold public hearings on its proposal on a date 30 days after the issuance. This provision of the regulation is said to have been patterned after the sulfur oxide emissions limitation which had been in the state’s proposal which was deleted.

Anaconda immediately demanded an adjudicatory hearing on EPA’s proposed regulation, but EPA’s reply was that the public hearings were to be legislative or informational and not adjudicatory. Subsequently, it was further explained that the hearing would not be conducted in the nature of a trial. Instead, any interested persons or corporations could make a statement and all relevant testimony would be received. Also, the hearing record would remain open until October 7, 1972, for written statements or other submissions. After that there would be a further hearing to allow further public statements.

Anaconda’s position expressed at the hearing was that it was spending large sums of money on its own initiative in an effort to control sulfur oxide emissions; that it was preparing to restrict them from the current rate of 64,000 pounds per hour to 50,000 pounds per hour. Its position was further expressed that the 7,040 pounds per hour would be technologically and economically unfeasible and would create a significant water pollution problem.

…

III.

Our final question is whether there was sufficient substance to Anaconda’s contention so that it would appear that it has been deprived of procedural due process by EPA’s refusal to grant a trial type adjudicatory hearing. Assuming that a showing of real deprivation would justify a threshold injunctive hearing, we must determine that the showing here was grossly insufficient to justify the action taken. The trial court saw as a result of denial of an adjudicatory hearing a violation of procedural due process together with a violation of the Clean Air Act and the Administrative Procedure Act. We must disagree. The Administrative Procedure Act requires that there be an adjudicatory hearing only if the agency statute specifies that the particular rule-making hearings be “on the record after opportunity for an agency hearing.” No such requirement is set forth in the Clean Air Act.

By requiring that the hearing under § 110(c) be public Congress sought to bring about broad and flexible participation from all interested groups subject always to a review by the court of appeals. The fact that the proceedings are transcribed does not, of course, mean that the hearing is “on the record.”

The fact that Anaconda alone is involved is not conclusive on the question as to whether the hearing should be adjudicatory, for there are many other interested parties and groups who are affected and are entitled to be heard. So the guidelines enunciated by Mr. Justice Holmes in Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915) are not applicable.

We have also examined the early decision in Londoner v. Denver, 210 U.S. 373, 386, 28 S.Ct. 708, 714, 52 L.Ed. 1103 (1908), and nothing therein imposes the adjudicatory requirement. There it was said by Justice Moody:

Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing, in its very essence, demands that he who is entitled to it shall have the right to support his allegations by argument, however brief; and, if need be, by proof, however informal.

From our examination of the Act and the related case law and statutes, it would appear that the congressional requirement of a public hearing has been satisfied. Notice has been given and the proposed regulation has been issued. Anaconda appeared at that hearing and submitted material and was given an opportunity to submit more material and information for a period of 75 days following the public hearing. We perceive no violation of Anaconda’s right to procedural due process.

Unending procedure could be produced by an adjudicatory hearing. This could bring about unending delay which would not only impede but completely stifle congressional policy. We do not, of course, condemn the trial court’s concern for the rights of Anaconda. Those rights are important and the court should be sensitive to them, but those rights are not of such magnitude as to overcome congressional policy and the rights of the remainder of the community.