Bethlehem Steel Corp. v. Gorsuch

No. 82-2884 (7th Cir. April 27, 1984)

The court grants a petition for rehearing of petitioner's challenge to the Environmental Protection Agency's (EPA's) rejection of a Clean Air Act delayed compliance order (DCO) for its coke oven batteries. Initially, the court rejects a petition for rehearing en banc. The panel that earlier ruled in the case, 14 ELR 20295, then grants the petition for rehearing in order to resolve questions concerning a state implementation plan (SIP) provision whose partial approval by EPA was the basis for the Agency's rejection of the DCO. The court vacates its earlier ruling and requests the submission of briefs clarifying the status of the 1974 SIP provision at issue and its 1972 predecessor and discussing procedures for further fact-finding in the case.

Counsel are listed at 14 ELR 20295.

Joined by Pell, Bauer, Wood, Cudahy, Eschbach, Posner, Coffey, and Flaum, JJ.

[14 ELR 20482]

Cummings, J.:

Order

On consideration of the petition for rehearing and suggestion for rehearing en banc filed by counsel for the petitioner, Bethlehem Steel Corporation, in the above-entitled cause, a vote of the active members of the Court having been requested, and less than a majority of the active members of the court having voted to grant rehearing en banc,^* the petition for rehearing en banc is hereby denied.

The petition for rehearing, however, by a unanimous vote of the panel,^** is hereby granted.

The opinion and judgment entered in the above-entitled case on February 3, 1984, are hereby VACATED.

In its opinion of February 3, 1984, the panel, relying on PSI v. EPA, 682 F.2d 626 [12 ELR 20928] (7th Cir. 1982), essentially recognized the power of the Environmental Protection Agency [14 ELR 20483] (the "EPA") to partially approve a revision of a State Implementation Plan ("SIP"). Both the majority and the dissent (by Judge Posner) indicated that, to be valid and enforceable, such a partial approval of a revision of a SIP must be reasonable. The majority found the partial approval in the instant case, based on the situation as it understood it, to be reasonable and therefore effective and valid. The dissent, based on its understanding of the situation, found the EPA's partial approval to be unreasonable and therefore ineffective and invalid.

All members of the panel now believe that, to properly resolve this issue, further factfinding may be necessary.

In this connection, the following courses of action, inter alia, present themselves:

1.The matter might be remanded to the EPA to make findings as to the scope and coverage of 1972 APC-3. Further, the agency could make other findings with respect to the relative burdens on, and benefits to, industrial combustion and noncombustion sources resulting from 1974 APC-3, as proposed by the State of Indiana or as partially approved by the EPA, with particular reference to the balance of benefit and burden respecting the Bethlehem coke batteries.

2. This court could affirm the EPA's disapproval of the DCO, which is before us, based on the fact that the presently approved version of APC-3 is either (according to the EPA) the partially approved (federal) version of the regulation or (according to Bethlehem and because of the EPA's act of disapproval) the prior version of the regulation, 1972 APC-3. In the view of neither of the parties is the Indiana version of APC-3 in effect and, therefore, the DCO which is before us, which relates to the Indiana version of the regulation, cannot be approved.Such an affirmance presumably would leave open the question of the validity of the partial approval. This court, by such a disposition would presumably commit the determination of this question to the appropriate district court in enforcement proceedings, where the factual issues noted in alternative 1, above, could be explored.

3. Another possible alternative would be the appointment of a special master to find the facts noted in alternative 1, above, and to make recommendations.

4. Other approaches, which the parties might wish to suggest, also undoubtedly exist. The similarity in subject matter of Bethlehem v. Ruckelshaus (No. 84-1233) to the present case may also suggest that resolution by the appropriate district court or some other mechanism might be desirable.

Against the background, the panel requests the parties to file simultaneous supplemental briefs, limited to 30 pages, and due May 21, 1981; the parties may also file reply briefs in response to the respective supplemental briefs, due May 31, 1984. The supplemental briefs should address the following questions:

1. What was the scope of coverage of 1972 APC-3 with regard to emissions from noncombustion sources, including Bethlehem's coke batteries?

2. Assuming the 1972 APC-3 did not extend to Bethlehem's coke batteries, what were the respective burdens and benefits imposed on industry (including Bethlehem) by 1974 APC-3's extension to cover noncombustion sources including the coke batteries, on the one hand, and, on the other, its 15-minute exemption for both combustion and noncombustion sources?

3. Assuming that 1972 APC-3 did not extend to Bethlehem's coke batteries and other noncombustion sources, was the EPA's "partial" of 1974 APC-3 reasonable in excising the 15-minute exemption but allowing the extended coverage to remain in force? What is the reasonableness standard by which an EPA partial approval should be judged?

4. According to the theories of either party to this litigation (see alternative 2, above) the DCO in question refers to an invalid regulation and the EPA was correct in disapproving it in its 1979 and 1982 Orders. Because under either theory the EPA's disapproval of the DCO is correct, is it necessary for this court to reach the question of the validity of the partial approval? If this court does not reach this question, is it appropriately left to the district court (with factfinding capability) in an enforcement proceeding?

5. Would remand to the EPA, referral to the district court or appointment of a special master be the most appropriate course to accomplish necessary factfinding and to make a determination of reasonableness?

6. Would other courses of action be more appropriate?

* Circuit Judges Wilbur F. Pell, Jr. and Richard A. Posner voted to grant rehearing en banc.

** The Honorable Philip C. Wilkins, Senior District Judge for the Eastern District of California, is sitting by designation.