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Bethlehem Steel Corp. v. EPA

Citation: 11 ELR 20294
No. No. 79-2382, 638 F.2d 994/15 ERC 1513/(7th Cir., 12/22/1980)

The Seventh Circuit Court of Appeals remands to the Environmental Protection Agency (EPA) its disapproval of a delayed compliance order (DCO) issued by the Indiana Air Pollution Control Board (IAPCB) to petitioner. The DCO, issued by the IAPCB pursuant to § 113(d) of the Clean Air Act on November 15, 1978, exempted petitioner from complying with certain aspects of the Indiana state implementation plan (SIP) until July 1, 1979. The EPA Administrator, who claimed not to have received notice of the issuance of the DCO until December 26, 1978, proposed to disapprove it on March 17, 1979, and published his final determination to disapprove it on September 17, 1979. The court initially rejects EPA's assertion that it was not required to supplement the administrative record with certain documents obtained by petitioner under the Freedom of Information Act. With respect to the disapproval of the DCO, the four finds that it is invalid because it was not issued within the 90-day period prescribed by § 113(d)(2) of the Clean Air Act. A proposed disapproval of a DCO does not qualify as a disapproval under this provision. As to the merits of the disapproval, the court rules initially that the standard of review is the arbitrary and capricious standard set out in the Administrative Procedure Act (APA). The first two bases offered in support of the disapproval are inadequate under the APA because they are not supported by a discussion of the Agency's rationale. The third basis for the disapproval is also rejected on the ground that EPA may not, as it attempted here, prevent sources [11 ELR 20295] from raising as a defense in enforcement proceedings that the standards sought to be applied to it are infeasible. Nor was it proper to disapprove the DCO on the grounds that the IAPCB had waived its right to prosecute petitioner for violations found to be not within its reasonable control. In addition, the Administrator wrongly faulted the DCO for focusing on certain operations at petitioner's facility without requiring compliance by unaddressed components. Finally, the court finds the record an inadequate basis on which to determine whether the operant Indiana SIP was the one approved in 1968 or that approved in 1974. As an independent ground for remanding the DCO disapproval, the court also finds substantial questions as to whether EPA lawyers impermissibly participated in investigatory and adjudicative functions simultaneously.

Counsel for Petitioner
Jerry T. Belknap, Bryant G. Pabler
Barnes, Hickam, Pantzer & Boyd
1313 Merchants Bank Bldg., Indianapolis IN 46204
(317) 638-1313

Counsel for Respondents
Jane A. Axelrad
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Susan B. Weinstein
Office of the Regional Counsel
Region V, Environmental Protection Agency, 230 S. Dearborn St., Chicago IL 60604
(312) 886-6670

Donald W. Stever Jr., Raymond W. Mushal; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Before PELL and BAUER, Circuit Judges, and CROWLEY, District Judge.*