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Bethlehem Steel Corp. v. EPA

Citation: 14 ELR 20090
No. No. 82-2608, 723 F.2d 1303/20 ERC 1153/(7th Cir., 12/13/1983)

The court rules that once the Environmental Protection Agency (EPA) approves a state's list of attainment, nonattainment, and unclassifiable areas, the Agency may not unilaterally reclassify an area as nonattainment under § 107(d) of the Clean Air Act. The court first rules that the reclassification is a final order reviewable under § 307(b)(1) of the Act, and that Bethlehem Steel did not forfeit its right to review by failing to challenge the interpretive regulation in which EPA declared its power to amend attainment lists unilaterally. The court then construes § 107(d)(2) to allow EPA to amend lists unilaterally only within the 60 days the statute gives EPA to approve and promulgate the state's list. This interpretation is consistent with other provisions of the statute and the legislative history. Also, the court notes that EPA's redesignation in 1982 was accompanied with Agency-set attainment deadlines, which the Agency has no power to impose. The court declines to defer to the Agency's construction of § 107(d), holding that deference is inappropriate when construction involves political, not technical issues. Finally, the court notes that the proper remedy for EPA is to revise the state implementation plan under § 110(a)(2)(H) to ensure attainment.

Counsel for Petitioner
Bryan G. Tabler
Barnes & Thornburg
1313 Merchants Bank Bldg., Indianapolis IN 46204
(317) 638-1313

Counsel for Respondent
Arthur Smith Jr.
Office of Regional Counsel
Environmental Protection Agency, 230 S. Dearborn St., Chicago IL 60604
(312) 886-6837

Counsel for Respondents-Intervenors
Daniel Mintz
59 E. Van Buren St., Chicago IL 60605
(312) 939-1984

Before WOOD and POSNER, Circuit Judges, and GORDON, Senior District Judge.*