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General Motors Corp. v. EPA

Citation: 19 ELR 20841
No. No. 88-4257, 871 F.2d 495/29 ERC 1567/(5th Cir., 04/13/1989)

The court holds that, under Clean Air Act § 113(d), the Environmental Protection Agency (EPA) has no authority to disapprove a state-issued delayed compliance order (DCO) that has expired by its own terms. In January 1987 Texas issued the DCO to allow General Motors to exceed air pollution limits until August 1987; EPA disapproved the DCO in February 1988 after proposing to disapprove it in July 1987. The court first holds that EPA may not enforce against violations that happened after 90 days had passed from when the DCO had issued and before EPA has acted on the DCO, because Clean Air Act § 113(d) requires EPA to either approve or disapprove state-issued DCOs for major stationary sources within 90 days. The court next holds that EPA lacks statutory authority to disapprove a state-issued DCO once the DCO has expired. If EPA disapproves a state-issued DCO, it must immediately begin enforcement action or issue a DCO of its own, and it cannot reasonably do either once the DCO has expired. Finally, the court holds that it has no jurisdiction over the case. Because EPA's disapproval of the expired DCO was unauthorized, EPA has taken no final action on the DCO. Clean Air Act § 307(b) limits judicial review to final actions.

Counsel for Petitioner
Robert T. Stewart, Michael Weinberg
Jones, Day, Reavis & Pogue
301 Congress Ave., Ste. 1200, Austin TX 78701
(512) 477-3939

Counsel for Respondent
David W. Zugschwerdt
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2686

Before GEE, HIGGINBOTHAM, and DUHE, Circuit Judges.