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Bethlehem Steel Corp. v. Gorsuch

Citation: 14 ELR 20295
No. No. 82-2884, 726 F.2d 356/20 ERC 1432/(7th Cir., 02/03/1984) EPA order aff'd

The court affirms the Environmental Protection Agency's (EPA's) disapproval of a delayed compliance order (DCO) issued by the Indiana Air Pollution Control Board to Bethlehem Steel Corp., holding that the DCO is inconsistent with EPA's valid partial approval of a revision to the Indiana state implementation plan (SIP). EPA first approved an Indiana SIP governing particulate emissions from "combustion" and "process" sources in 1972. In 1974 the state proposed revisions to the SIP governing particulate emissions from "any" equipment. The following year EPA partially approved the SIP revision, accepting a 40-percent opacity limit, but rejecting a 15-minute daily exception from that limit. In 1982 the Agency disapproved a DCO covering petitioner's coke oven emissions because the DCO allowed 15-minute daily exceedances from the 40-percent opacity rule, making it inconsistent with the 1975 approval order, though consistent with the 1974 proposed revision. The court rules, in a footnote, that under § 307(b)(1) of the Clean Air Act it is too late for petitioner to attack the substantive elements or procedures used in adopting the 1975 DCO. Petitioner is limited to attacking EPA's statutory authority to act. The court adheres to its decision in an earlier case, Public Service Co. of Indiana v. EPA (PSI), 12 ELR 20928, that the Agency's partial approval of the 1974 SIP revision was valid. It rejects as factually incorrect and irrelevant petitioner's argument that PSI should be distinguished because Bethlehem Steel's coke oven emissions were not covered by the 1972 SIP.

The court then rules that because the DCO required compliance with the 1974 revised SIP, not the 1975 EPA-approved version, the DCO violated the Clean Air Act and was correctly disapproved by the Agency. The court rules that the Act did not compel EPA to partially approve the DCO, or to issue a revised DCO, or to issue an enforcement order. The court notes that the EPA's failure to do any of these things does not bar the Agency from bringing a civil enforcement suit, but should weigh against the Agency in any attempt to assess penalties against petitioner. Further, if EPA has unreasonably delayed its consideration of SIP revisions, petitioner should have a defense against imposition of civil penalties for violation of those parts of the SIP during the period of delay.

Judge Wilkins, concurring, chastises EPA for its administrative delays and resort to litigation, but states that stare decisis and deference to the Agency force the outcome of the case.

Judge Posner, dissenting, argues that EPA's power to partially approve SIPs does not extend to removal of key words from limitations, as it did in the 1975 order. He would distinguish PSI because petitioner's coke oven emissions were not covered by the 1972 SIP, and he would allow petitioner to attack the substance and procedures used in adopting the 1975 order under the rule in Bethlehem Steel Corp. v. EPA, 14 ELR 20090.

[A related decision is published at 11 ELR 20294 — Ed.]

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

Counsel for Respondent
Carey Rosemarin
Office of Regional Counsel
Environmental Protection Agency, 230 S. Dearborn St., Chicago IL 60604
(312) 353-2094

Jose R. Allen, Raymond W. Mushal
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2219

Before CUDAHY and POSNER, Circuit Judges, and WILKINS, Senior District Judge.*