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Bethlehem Steel Corp. v. Gorsuch

Citation: 14 ELR 20740
No. No. 82-2884, 742 F.2d 1028/21 ERC 1481/(7th Cir., 08/22/1984) EPA order set aside

The court rules that the Environmental Protection Agency (EPA) erred in partially approving a 1974 Indiana state implementation plan (SIP) revision with the effect of making the SIP provision significantly more stringent than the state intended. Initially the court rules that the legality of EPA's 1975 partial approval is properly before it. Petitioner timely challenged EPA's disapproval of a 1979 state-delayed compliance order based on the 1974 SIP. EPA actions on such orders, the court rules, are subject to the time limitations on review established by §307(b)(1) of the Clean Air Act. The statute is silent on whether the requirement of prompt challenge to final agency action applies where a timely challenge is made to one action—the 1979 EPA disapproval—whose legality depends on the legality of an earlier action—the 1975 partial approval—when the legal effect of the earlier order was not made clear until EPA issued the more recent order. Under the circumstances, the court concludes, it makes more sense to analyze the issue as one of laches.It is unnecessary to consider the scope or applicability of that doctrine here, since a 1980 remand on this issue by the court implies that petitioner was justified in not challenging the 1975 EPA order at the time it was issued.

Turning to the merits, the court rules that EPA's 1975 partial approval of the Indiana SIP revision was unlawful as it applied to noncombustion sources. EPA approved only a 40 percent opacity standard, disapproving a 15-minute daily exception. The court emphasized that it is not questioning EPA's authority to approve only selected provisions in a SIP revision. It further reaffirms an earlier decision upholding the partial approval at issue in this case as it applied to combustion sources. In that context the partial approval had the effect of precluding a weakening of the state's pre-existing rule, which unquestionably applied to combustion sources. In the present case, however, the partial approval had the effect, not of reinstating the prior state rule, but of imposing a new, more stringent requirement on noncombustion sources.It was questionable whether the pre-1975 rule applied to noncombustion sources at all, and if it did the impact was relatively limited. The 1974 rule, as partially approved by EPA, applied to noncombustion sources as the state intended, but deprived them of the daily exception, which appeared necessary to make the rule economically feasible for petitioner. This type of partial approval violates the procedures specified in the Clean Air Act. In §110(a)(3)(A) the Act requires EPA to disapprove an inadequate SIP provision and promulgate a substitute provision, actions that must be subject to specified review procedures. EPA's partial approval was, in effect, promulgation through a shortcut procedure of a substitute provision never contemplated by the state. As such, the court rules, it must be overturned, since the erroneously promulgated rule has the potential to require cessation of operations at petitioner's noncombustion sources and the error thus is not harmless.

Counsel are listed at 14 ELR 20295.

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