United States Steel Corp. v. Environmental Protection Agency

Nos. 78-1922; -1927 (5th Cir. July 10, 1979)

The Fifth Circuit grants a petition by the Environmental Protection Agency for a clarification of a decision rendered in the case on May 3, 1979, 9 ELR 20311, in which the court invalidated the Agency's designation of non-attainment areas in Alabama pursuant to § 107(d) of the Clean Air Act. The court emphasizes that the previous opinion did not concern the validity of the Agency's Emissions Offset Policy; therefore, this policy may continue to be applied on a case-by-case basis to new sources as long as it is not applied on the basis of the non-attainment designations invalidated earlier.

Counsel are listed at 9 ELR 20311.

Before GODBOLD, Circuit Judge, SKELTON,^* Senior Judge, and RUBIN, Circuit Judge.

[9 ELR 20598]

GODBOLD, Circuit Judge:

The EPA has petitioned for a rehearing on or clarification of the issue of application of the Emission Offset Ruling referred to in the last part of our original opinion. The petition must be granted to the following extent.

The Offset Ruling applies fairly stringent limitations on the construction of any new emissions source that would cause an NAAQS violation or exacerbate an existing one. As the EPA points out, application of the Ruling is on a case by case basis and does not depend entirely upon whether the proposed source is within a designated § 7407(d) nonattainment area. Some sources within such areas may be approved¹ and some sources not within such areas may be disapproved.² It appears evident to us that the existence of a nonattainment designation may have substantial impact on application of the Ruling in the areas in question in this case. As EPA acknowledges, a designation creates a "working presumption." EPA is not precluded from using the Offset Ruling in these areas, if such application is warranted in a particular case. Rather, in its application of the Ruling EPA may not rely upon the designations invalidated by us. Any reliance upon nonattainment designations as relevant to application of the Ruling must await new designations. We express no views on the procedures to be followed in such a case.

To the extent herein indicated, the petition for rehearing or clarification is GRANTED.

* Senior Judge of the United States Court of Claims, sitting by designation.

1. For example, a new source within a nonattainment area may be approved if it is determined that it is in a "clean" part of that area and will not contribute to pollution levels elsewhere. 41 Fed.Reg. t 55528.

2. For example, construction of a new source may be disapproved if it will contribute to a violation in a nearby designated nonattainment area or if it will cause a future violation, as of its proposed operation date. Id.