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Bethlehem Steel Corp. v. EPA

Citation: 12 ELR 20160
No. No. 79-2502, 651 F.2d 861/16 ERC 1149/(3d Cir., 06/08/1981)

The Third Circuit rules that the Environmental Protection Agency's (EPA's) disapproval of a delayed compliance order (DCO) for steel furnace fugitive particulate emissions issued by the Pennsylvania Department of Environmental Resources pursuant to §113(d) of the Clean Air Act was invalid. The court notes that it must apply the arbitrary and capricious standard of review set out in the Administrative Procedure Act. It then holds that EPA violated the statute by requiring the DCO to specify the best practicable system of emission reduction pending final compliance absent a showing that such interim controls in fact existed. In addition, the DCO adequately provided for "final compliance" by the statutorily prescribed five-year deadline. The statute does not require a "minor significance" determination, involving a one-year testing program, to be completed by the deadline since the plaintiff will still be subject to penalties if it is not in compliance. The court also rules that EPA was arbitrary and capricious in disapproving plaintiff's canopy hood system of emission control. The technology constituted "new means" within the meaning of §113(d)(4)(A), even though it was in use in other types of facilities, because Congress intended the provision to cover new applications of proven technologies. The DCO also satisfied the §113(d)(4)(C) requirement that the "new means," when compared with technology which otherwise would have been employed, would achieve "an equivalent continuous emission reduction at lower cost." The record did not provide an adequate basis for judging whether the only other technology cited by EPA was a superior alternative. Though EPA's interpretation is entitled to judicial deference, it must be rejected where, as here, it conflicts with the plain meaning of the statute. The court remands the DCO disapproval to EPA for further proceedings in conformance with the opinion.

Counsel for Petitioner
Blair S. McMillin, Harley N. Trice II, William E. Marquis
Reed, Smith, Shaw & McClay
P.O. Box 2009, Pittsburgh PA 15230
(412) 288-3131

Counsel for Respondent
Todd M. Joseph; Michele B. Corash, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Donald W. Stever Jr., Nancy L. Southard, Angus C. Macbeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Before ADAMS and SLOVITER, Circuit Judges and KNOX, District Judge.*