568 F.2d 284 (3rd Cir. 1977), 76-1386, American Iron and Steel Institute v. E.P.A.

Docket Nº:76-1386, 76-1749, 76-1751, 76-1757, 76-2176 and 76-2232.
Citation:568 F.2d 284
Party Name:AMERICAN IRON AND STEEL INSTITUTE, Armco Steel Corporation, Bethlehem Steel Corporation, Inland Steel Company, Jones & Laughlin Steel Corporation, National Steel Corporation, Republic Steel Corporation, United States Steel Corporation, Wheeling-Pittsburgh Steel Corporation, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. SIERRA CLUB, P
Case Date:September 14, 1977
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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568 F.2d 284 (3rd Cir. 1977)

AMERICAN IRON AND STEEL INSTITUTE, Armco Steel Corporation,

Bethlehem Steel Corporation, Inland Steel Company, Jones &

Laughlin Steel Corporation, National Steel Corporation,

Republic Steel Corporation, United States Steel Corporation,

Wheeling-Pittsburgh Steel Corporation, Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

SIERRA CLUB, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train,

Administrator, Respondents,

Youngstown Sheet and Tube Company, Republic Steel

Corporation, United States Steel Corporation, Intervenors.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL

RESOURCES, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Youngstown Sheet and Tube Company, Republic Steel

Corporation, United States Steel Corporation, Intervenors.

ALLEGHENY LUDLUM INDUSTRIES, INC., Atlantic Steel Company,

the Babcock& Wilcox Company, Continental Copper & Steel

Industries, Inc., Crucible Inc., Cyclops Corporation,

Detroit Steel, Interlake, Inc., Lone Star Steel Company,

Shanango Incorporated, Sharon Steel Corporation, the Timken

Company, Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

YOUNGSTOWN SHEET AND TUBE COMPANY, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train,

Administrator, Respondents.

CF & I STEEL CORPORATION, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 76-1386, 76-1749, 76-1751, 76-1757, 76-2176 and 76-2232.

United States Court of Appeals, Third Circuit

September 14, 1977

Final Submission Aug. 17, 1977.

Argued May 2, 1977.

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William C. Robb, Welborn, Dufford, Cook & Brown, Denver, Colo., for petitioner in No. 76-2232, CF & I Steel Corp.

Douglas R. Blazey, Maxine T. Woelfling, Harrisburg, Pa., for petitioner in No. 76-1751, Com. of Pa.

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Jerome S. Kalur, Weston, Hurd, Fallon, Sullivan & Paisley, Cleveland, Ohio, for petitioner in No. 76-1749, Sierra Club.

Barry L. Malter, Environmental Protection Agency, Washington, D. C., and Raymond W. Mushal, Dept. of Justice, Land and Natural Resources Div., Washington, D. C., for respondents.

William W. Falsgraf, Baker, Hostetler & Patterson, Cleveland, Ohio, for intervenor, Youngstown Sheet and Tube Co., in Nos. 76-1749 and 76-1751.

Patrick F. McCartan, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for intervenor, Republic Steel Corp., in Nos. 76-1749 and 76-1751.

John McN. Cramer, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for intervenor, U. S. Steel Corp., in Nos. 76-1749 and 76-1751.

David McNeil Olds, Blair S. McMillin, Thomas C. Wettach, Thomas J. Duman, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., David S. Watson, Peter G. Veeder, Frank J. Clements, Thorp, Reed & Armstrong, Pittsburgh, Pa., Max N. Edwards, Richard E. Schwartz, Collier, Shannon, Rill, Edwards & Scott, Washington, D. C., for petitioners in Nos. 76-1386, 76-1757 and 76-2176, American Iron & Steel Institute, Allegheny Ludlum Industries and Youngstown Sheet & Tube Co. et al.

Henry H. Korn, Richard E. Nolan, Davis, Polk & Wardwell, New York City, for American Iron & Steel.

Albert J. Slap, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for petitioner, Sierra Club; John D. Hoffman, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., of counsel, Jerome S. Kalur, Weston, Hurd, Fallon, Sullivan & Paisley, Cleveland, Ohio, for petitioner, Sierra Club.

William W. Falsgraf, Evan Jay Cutting, H. Stephen Madsen, Baker, Hostetler & Patterson, Cleveland, Ohio, Donald J. Libert, Youngstown, Ohio, for intervenor, Youngstown Sheet and Tube Co.

David W. Furgason, William C. Robb, Welborn, Dufford, Cook & Brown, Denver, Colo., for petitioner CF & I Steel Corp.

Ray E. McDevitt, Washington, D. C., Alfred T. Ghiorzi, Peter R. Taft, Edmund B. Clark, Raymond W. Mushal, Chief Appellate Section, Dept. of Justice, Land and Natural Resources Div., Washington, D. C., for respondents E.P.A.

Patrick F. McCartan, Marc L. Swartzbaugh, Cleveland, Ohio, for Republic Steel Corp.; Jones, Day, Reavis & Pogue, E. P. Weber, Jr., James D. Donohoe, Cleveland, Ohio, of counsel.

K. Robert Conrad, Charles J. Bloom, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for CF & I Steel Corp.

OPINION

Before SEITZ, Chief Judge, ROSENN, Circuit Judge and MEANOR, District Judge. [*]

SEITZ, Chief Judge.

These are petitions to review Environmental Protection Agency regulations governing certain manufacturing processes within the iron and steel industry. The regulations, which were published in the Federal Register on March 29, 1976, establish maximum permissible quantities of pollutant which may be discharged by operations performing the designated processes. The regulations also survey the available pollution control techniques, and specify techniques the "best practicable control technology currently available" (BPCTCA) which might be used in meeting the prescribed effluent limitations. In issuing the regulations, the EPA was exercising its statutory mandate to establish effluent limitations requiring the application of the BPCTCA by July 1, 1977. 33 U.S.C. § 1311(b)(1)(A). It is these regulations as to BPCTCA which are under review here. The regulations promulgated by the EPA also contain proposed : a) effluent limitations

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and guidelines as to the application of the "best available technology economically achieveable" by July 1, 1983 b) standards of performance for new point sources and c) pretreatment standards for existing sources and for new sources.

The regulations governing the application of the BPCTCA are in "interim final" form, which is to say that, while they were to take effect immediately upon promulgation, the EPA is now in the process of considering "final" regulations covering the same subject matter. The regulations state that the reasons for this novel procedural form is that "(t)he Agency is subject to an order of the United States District Court for the District of Columbia entered in Natural Resources Defense Council v. Train, et al. (Cv.No.1609-73) which requires the promulgation of regulations for this industry category no later than March 15, 1976." 41 Fed.Reg. 13004.

The regulations deal only with certain processes of the iron and carbon steel and specialty steel (ferroalloy and stainless steel) industries, namely forming and finishing processes, and with certain steelmaking processes within the specialty steel industry. An earlier phase ("phase I") of the regulations, published on June 28, 1974, dealt with steelmaking processes within the iron and carbon steel industries. This court considered the latter regulations in American Iron and Steel Institute v. EPA (AISI I), 526 F.2d 1027 (3d Cir. 1975), and remanded them to the EPA for reconsideration in certain respects.

I.

Some petitioners have argued that the "interim final" regulations are invalid because they were not promulgated in accordance with the Administrative Procedure Act. The relevant procedural history may be outlined as follows.

Since November 15, 1973, the EPA has been under order of the district court for the District of Columbia, in Natural Resources Defense Council v. EPA to promulgate regulations governing the processes of the iron and steel industry covered by the present regulations. The EPA was originally under order to promulgate these regulations in 1974, but it has asked for and received several extensions of the deadlines.

On August 21, 1975, the EPA published in the Federal Register "advance notice of intent to propose and promulgate effluent limitations and guidelines for existing sources." 40 Fed.Reg. 36708. The notice of "proposed rulemaking" (ANPR) then proceeded to list the subcategories of the industry for which tentative regulations were being set forth. The EPA engaged in extensive reevaluation and revision of the tentative limitations and guidelines after they were published, partly in response to substantial sentiment within the agency that they were too lenient. The EPA did not, however, propose the revised regulations for further notice and comment. It also stipulated that the interim final regulations would be effective immediately, and thus did not allow the 30 day interval between publication date and date of effectiveness usually required by the APA. 5 U.S.C. § 553(d). The regulations contain a statement that, due to the pendency of the court order and the need to expedite the effectuation of the Act, the Agency had determined that it was "impracticable and contrary to the public interest" "to develop and publish regulations . . . in proposed form (and) to provide a 30 day comment period." The Agency also stated that there was "good cause . . . for these regulations to become effective immediately upon publication." 41 Fed.Reg. 13004.

Petitioners in Nos. 76-1386, 76-1757 and 76-2176, ("the Companies") who are steel companies and the American Iron and Steel Institute have made two challenges to the validity of the "interim final" regulations under the APA which require discussion. 1

They first argue that any regulations governing specialty steel are invalid because the ANPR failed to give sufficient

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indication that the Agency was considering regulations as to the specialty steel segment of the industry. This court delineated the purposes of the APA's notice and comment requirement in Texaco, Inc. v. FPC, 412 F.2d 740, 744 (1969): "Section 553 was enacted to give the public an opportunity to...

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