The opinion of the court was delivered by: CURTIN
In this action, the plaintiff seeks judicial review of an administrative order issued by the Administrator of the Environmental Protection Agency (EPA) directing the plaintiff to permit EPA to inspect the plaintiff's coke oven batteries. The EPA has counterclaimed for enforcement of its order of inspection. The case was tried before the court. What follows is the court's findings of fact and conclusions of law, made in accordance with Rule 52 of the Federal Rules of Civil Procedure.
Donner Hanna is a New York corporation engaged in the business of operating a by-product coke plant. Its coke oven batteries are located in Buffalo, New York, a short distance inland from Lake Erie. Its three batteries are in line, running west southwest to east northeast. Battery A-B is the westernmost battery, battery # 3 is immediately east of battery A-B, and battery # 4 is immediately east of battery # 3. The batteries are black in color and are exposed to wind, sun, snow, and rain.
Each battery consists of approximately 50 ovens measuring about 17 inches wide, 13 feet high, and 32 feet long. Between each oven are heating ducts which permit the heating of a special mixture of coal in the absence of oxygen to very high temperatures (about 2000o ) to produce coke. The operation of each oven is cyclical and is performed in established regular order throughout the battery.
On top of each battery is a larry car, which operates on rails and carries coal from a storage facility to the individual oven. The coal is discharged from the larry car into the oven to be "charged" through lidded openings in the top of the oven. After the individual oven is charged, the lids are replaced and the volatile components of the coal driven off by the heating process are removed by a "standpipe" to a "collector main" to a by-product recovery plant.
When the coking cycle is completed (16-17 hours), the coal in the oven has been transformed into coke. At that time the doors on each end of the oven are opened and a ram-like device is inserted from the "pusher side" in order to push the coke out the other end ("coke side") into a railroad car. The railroad car carries the hot coke under a "quench tower" where the hot coke is drenched with water.
Coke oven batteries do not continuously discharge smoke into the atmosphere but rather emit smoke for short periods of time from a large number of discrete sources. They are therefore classified as intermittent sources of air pollution.
When the damp coal is charged into the hot oven from the larry car, emissions may occur at the charging holes, the larry car hoppers, the larry car control system, and the standpipe lid. This group of emissions is referred to as "charging emissions" and can be reduced or eliminated by carefully controlling the sequence of charging and creating a negative pressure in the oven with an aspiration system. Another group of emissions may occur at the doors, lids and standpipes located at each end of the oven when the volatile components of the coal are removed from the oven after charging. A third group of emissions may occur during the pushing operation and is caused by burning coal which has not been completely converted to coke at the time that it is pushed out of the oven. Finally, if there are defects or leaks in the oven walls, volatile materials may escape into the heating ducts, causing emissions from the waste heat stack. Charging and pushing emissions are typically of very short duration and rarely exceed six minutes.
As a result of a state inspection in 1974 indicating that battery A-B was not in compliance with the three-minute rule, Donner Hanna improved its pushing emission controls on battery A-B. At trial, testimony was introduced to the effect that Donner Hanna now uses state of the art pollution control technology on all of its operations and is in good condition compared to other coke plants in the United States. Barnes at 452, 454-56. This testimony was not challenged by EPA.
In September of 1976, EPA attempted to inspect Donner Hanna's coke oven batteries for the purpose of determining compliance with emission standards contained in New York's State Implementation Plan (SIP), 6 N.Y.C.R.R. § 214.3. Donner Hanna refused to allow the inspection because it disputed the reliability of the testing method which EPA proposed to use. This testing method is the focal point of the controversy between the parties.
Under the Clean Air Act, EPA is authorized to inspect sources of air pollution to determine compliance with the Act. 42 U.S.C. § 7414(a)(2)(A).
It is also authorized to order compliance with its inspection requests. Id. § 7413(a)(3). On October 1, 1976, EPA issued an order pursuant to its statutory powers directing Donner Hanna to allow the proposed inspection. At that time and on all later occasions pertinent to this litigation, EPA has made clear that it intended to conduct the proposed inspection in accordance with the testing procedures set forth in "EPA Visible Emission Inspection Procedures (August 1975)" (1975 EPA Guidelines) (Ex. 2), and that it would use the "stopwatch" technique of measuring the duration of emissions. See EPA's Counterclaim P 19; Ogg at 23-32.
After a conference pursuant to 42 U.S.C. § 7413(a)(4) proved unsuccessful, Donner Hanna filed an action in this court seeking judicial review of the October 1, 1976 order. Donner Hanna v. Costle, Civ. No. 76-567. This action was discontinued without prejudice when EPA withdrew its October 1, 1976 order.
On April 12, 1977, EPA issued a new order substantially restating the provisions of the order of October 1, 1976.
On May 23, 1977, a conference hearing was held in the EPA Region II offices, and representatives of Donner Hanna and EPA attended. At the hearing, EPA refused to modify the order of April 12, 1977. It also advised Donner Hanna that EPA intended to seek criminal sanctions against the plaintiff and its officers and employees in the event of noncompliance with the order.
Immediately thereafter, Donner Hanna filed this action in the district court, seeking a declaratory judgment as to the constitutionality of the proposed inspection under the fourth amendment and judicial review of the April 12, 1977 order under the Administrative Procedure Act. EPA answered the complaint and also asserted a counterclaim pursuant to 42 U.S.C. § 7413(b) seeking a mandatory injunction directing the plaintiff to grant access to its plant. EPA's motion for summary judgment was denied and the case proceeded to trial.
II. JURISDICTION AND SCOPE OF REVIEW
Jurisdiction over the complaint and the counterclaim is alleged under 28 U.S.C. §§ 1331, 1345, and 2201; 5 U.S.C. § 702; and 42 U.S.C. § 7413(b). Although EPA originally objected to the court's jurisdiction to grant the relief requested by Donner Hanna, this objection was withdrawn in open court in order to have this court rule on the testing method. In return, Donner Hanna withdrew its objection to the inspection based on the fourth amendment. The only issue now before the court is the validity of the April 12, 1977 order seeking inspection of the plaintiff's coke oven batteries.
Although the parties now agree that the court has jurisdiction to review EPA's order, the court recognizes its obligation to engage in an independent inquiry into subject matter jurisdiction. For the reasons stated below, I find that the district court has jurisdiction over EPA's counterclaim under 42 U.S.C. § 7413(b) and that this jurisdiction includes the power to decide whether EPA's proposed testing method is subject to rulemaking requirements.
As previously mentioned, the Clean Air Act gives EPA the power to enter onto the premises of persons operating emission sources and to sample the emissions in order to determine compliance with emission standards. Id. § 7414(a)(2). Where permission to inspect is denied, the EPA "may issue an order requiring such person to comply" with the inspection request. Id. § 7413(a)(3). If the person "violates or fails or refuses to comply with any order issued under (s 7414(a))," EPA may commence a civil action for a permanent or temporary injunction "in the district court of the United States for the district in which the violation occurred or in which the defendant resides or has his principal place of business . . . ." Id. § 7413(b). These provisions expressly give the court jurisdiction to enforce EPA's order of April 12, 1977.
Although EPA's right to enter Donner Hanna's plant and its right to use a particular test method are conceptually distinct, under the circumstances of this case the two questions are inextricably connected. Donner Hanna has from the outset been willing to permit EPA to inspect using the "remote" method. EPA states that it seeks permission to inspect for the sole purpose of using its proposed method. EPA's counterclaim, P 19. The government has stipulated to the ...