Jump to Navigation
Jump to Content

Concerned Citizens of Bridesburg v. EPA

ELR Citation: 18 ELR 20249
Nos. No. 86-3380, 836 F.2d 777/26 ERC 2049/(3d Cir., 12/18/1987)

The court holds that the Environmental Protection Agency (EPA) violated the Clean Air Act by rescinding 14 state and local odor regulations contained in Pennsylvania's state implementation plan (SIP), without first suggesting the proposed revisions to Pennsylvania and seeking Pennsylvania's response after public hearings. EPA determined that it had originally approved the odor regulations in the SIP without statutory authority, because it has no national ambient air quality standards (NAAQS) for odors, and these odor regulations do not affect any existing NAAQS. Therefore, EPA concluded, it may rescind the odor regulations by rule without following the usual procedures for modifying a SIP.

The court holds that in rescinding the odor regulations, EPA has "revised" Pennsylvania's SIP, rather than merely revising EPA's own prior approval of the SIP. As a matter of plain English, the term "revision" includes any modification in the plan's requirements. Moreover, when EPA published its rule rescinding the odor regulations, it described the action as revising the SIP. The statutory provisions for preparing and revising SIPs provide the state with an opportunity to act first on the mechanics of the SIP, and there is no reason why Pennsylvania should not have a similar opportunity here. Although the Clean Air Act provisions on SIP revisions do not specifically list this set of facts as requiring a state's participation, it is likely that Congress simply did not contemplate it. Congress apparently required a state's participation in SIP revision for all the situations it could think of, and Congress' fundamental design of the Clean Air Act would be disrupted if state participation were not required here.

The Clean Air Act provides no alternative procedures for modifying an existing SIP, other than through the standard revision procedures involving state review. Although under general principles of administrative law EPA claims inherent authority to reconsider an earlier decision it did have authority to make, authority to reconsider is certainly limited by the original grant of authority. In the Clean Air Act, the original approval or disapproval of the SIP must be made within four months, but here EPA has acted to change the SIP after 13 years, so its action is not a reconsideration of its earlier approval. Moreover, these changes are not mere "corrections" of "inadvertent" errors. Rather, they are the result of a deliberate policy adopted in 1980.

The court holds that Clean Air Act §110(c) does not provide authority for EPA's action. Although §110(c) of the Clean Air Act authorizes EPA to promulgate a portion of a SIP if that portion submitted by the state was inadequate, the Act requires EPA to first hold a public hearing, which was not held in this case. Moreover, this substitution of an EPA plan for the state's plan must occur before approval of the overall SIP, not after. Although rescission of the odor regulations from the SIP imposes no new obligations on Pennsylvania and does not directly reduce Pennsylvania's authority, the court holds that Pennsylvania still has a statutory right to involvement in the rescission, since the Act authorizes the state to use the SIP to establish more than the pollution controls minimally required to achieve the NAAQS.

Finally, the court holds that EPA's failure to follow the usual SIP revision procedures in this case was not harmless error. Under the Administrative Procedure Act, failure to follow statutorily required procedures is always grounds for reversing the agency action. Moreover, despite Clean Air Act §307(d)(8)'s provision that EPA rules be overturned only when errors are serious and of central relevance, in this case EPA's error goes to the division of authority between the federal and state governments, a central facet of the Clean Air Act. Based on a review of Pennsylvania's reactions to the EPA action, following the normal procedures for SIP revision could well result in a different final result for the Pennsylvania SIP.

Counsel for Petitioners
Jerome Balter
Public Interest Law Center of Philadelphia
1315 Walnut St., Suite 1632, Philadelphia PA 19107
(215) 627-7100

Counsel for Respondents
Bradley S. Bridgewater
U.S. Department of Justice, Land and Environmental Resources Division
L'Enfant Plaza Station,. P.O. Box 23986, Washington DC 20026-3986
(202) 633-2000

Before Sloviter and Garth, JJ.