871 F.2d 495 (5th Cir. 1989), 88-4257, General Motors Corp. v. E.P.A.

Docket Nº:88-4257.
Citation:871 F.2d 495
Party Name:GENERAL MOTORS CORP., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:April 13, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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871 F.2d 495 (5th Cir. 1989)

GENERAL MOTORS CORP., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 88-4257.

United States Court of Appeals, Fifth Circuit

April 13, 1989

Robert T. Stewart, Aileen M. Hooks, Michael Weinberg, Jones, Day, Eavis & Pogue, Austin, Tex., for petitioner.

Nancy N. Lynch, Asst. Atty. Gen., Austin, Tex., amicus curiae--State of Texas.

Daniel S. Goodman, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., for respondent.

Petition for Review of an Order of the Environmental Protection Agency.

Before GEE, HIGGINBOTHAM, and DUHE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Texas issued a delayed compliance order temporarily authorizing General Motors to

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exceed relevant air pollution limits imposed by Texas state standards promulgated pursuant to the federal Clean Air Act, 42 U.S.C. Secs. 7401 et seq. Several months after the delay order had expired by its own terms, the federal Environmental Protection Agency disapproved the order. General Motors appeals the disapproval. We find that under 42 U.S.C. Sec. 7413(d)(2), the EPA has no authority to disapprove an expired delayed compliance order. We therefore hold that the EPA's delinquent action is ineffective to vitiate the force of the state order as a defense for General Motors in any enforcement proceeding, whether brought by the EPA or by a private citizen. We conclude that the order appealed from is not a final, reviewable action within the meaning of 42 U.S.C. Sec. 7607(b), and dismiss this petition for want of jurisdiction.

I

The details of the dispute between Texas, the EPA, and General Motors are highly technical and quite intricate. We summarize only the gist of that controversy here. General Motors operates an automobile plant in Arlington, Texas. Included in the plant is a painting procedure which releases significant amounts of volatile organic compounds. The Clean Air Act regulates the permissible levels of such organic emissions. The particular standards applicable to the Arlington plant are those specified by the Texas state plan: under the Clean Air Act, each state must develop a State Implementation Plan--called a "SIP" by those fluent in administrative acronyms--subject to approval by the EPA. The Texas standard governing emission of volatile organic compounds became more stringent on the first day of 1987.

Anticipating that it would be unable to comply with the more stringent emission regulations, General Motors in late 1986 sought a delayed compliance order, or "DCO," from the Texas Air Control Board ("TACB"). A delay order permits a non-complying source to continue operating for a short period of time, during which the source must implement changes bringing its emissions inside the standards specified by the state plan. See 42 U.S.C. Sec. 7413(d) (Sec. 113(d) of the Clean Air Act). Texas issued the delay order on January 16, 1987. The order was to expire by its own terms on August 28, 1987.

The Clean Air Act provides that "no such order issued by the State" with respect to a major stationary source "shall take effect until the Administrator determines that such order has been issued in accordance with the requirements of this chapter." 42 U.S.C. Sec. 7413(d)(2). The Act also provides that the EPA "Administrator shall determine, not later than 90 days after receipt of notice of the issuance of [a delay order] whether or not [the order] is in accordance with the requirements of this chapter." The EPA received notice of the Texas delay order concerning the General Motors plant on January 26, 1987. The 90-day period lapsed in late April 1987. EPA had taken no action. Later, on July 31, 1987, the EPA proposed disapproval of the delay order. The delay order expired by its own terms less than one month afterward, on August 28. Finally, in February 1988, more than five months after the delay order expired, the EPA disapproved the order.

The parties' persisting interest in the disapproval of an already expired order results from the order's possible impact upon an as yet unfiled EPA enforcement proceeding against General Motors. If the order were valid despite the EPA's disapproval of it, General Motors might assert the order as a defense against prosecutions for violations allegedly occurring during the lifespan of the order: a period no longer than the interval between January 16, 1987, to August 28, 1987.

In fact, the order's impact upon an enforcement proceeding would affect an even smaller time span. For various reasons, General Motors actually operated its Arlington plant for only a few weeks during the period covered by the order. The plant was working between March 2 and March 16, and again between March 31 and May 7. On all other days covered by the order, the plant was shut down.

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The EPA issued a notice of violation to General Motors on May 12, after the end of the statutory approval period for the delay order and after the plant had ceased operating. The plant did not resume operations until September 1, 1987, after the delay order had expired. The disputed disapproval ruling nonetheless remains relevant to the conjectured enforcement proceeding, since the EPA may elect to prosecute General Motors for violations occurring prior to issuance of the notice: courts have held that, once a notice of violation issues, a subsequent, post-notice violation by the source will subject the source to prosecution for earlier, pre-notice violations. See 42 U.S.C. Sec. 7413(b); see also United States v. Louisiana-Pacific Corp., 682 F.Supp. 1141, 1163 (D.Colo.1988).

General Motors took a timely appeal to this court from the EPA's order disapproving the Texas delay order. The appeal presents three distinct sets of issues. The first set of issues deals with the sequence of orders in this case. We are called upon to decide whether the EPA, by missing the statutorily imposed deadline and waiting even beyond the delay order's expiration date, forfeits its power to disapprove the delay order, or to prosecute General Motors for operations authorized by the delay order.

The second set of issues concerns the procedural integrity of the EPA's disapproval order. General Motors contends that the EPA impermissibly commingled its rule-making and enforcement proceedings, and that the EPA is attempting to resolve enforcement issues on the basis of a record too barren for such purposes.

The third set of issues has to do with the merits of the EPA's disapproval order, and so with the substance of the Clean Air Act and the Texas state plan. The EPA disapproved the order on the ground that it failed to provide for eventual compliance, failed to specify adequate interim compliance deadlines, and failed to provide for appropriate record-keeping by the source.

II

We first consider whether we have jurisdiction to hear this petition. Although neither party questions our jurisdiction, the court is free to raise jurisdictional issues sua sponte. See, e.g., Wright, Law of Federal Courts 23 (4th ed. 1983). In today's case, the oddity of an EPA order purporting to disapprove a long-expired state order prompts us to question whether the controversy between these parties is justiciable.

Both General Motors and the EPA contend that we have jurisdiction under 42 U.S.C. Sec. 7607(b)(1). That provision authorizes aggrieved parties to appeal directly to the federal courts of appeals from "the Administrator's action in approving or promulgating any ... order ... under section 7413(d) of this title," or from "any other final action of the Administrator under this chapter (including any denial or disapproval of the Administrator under subchapter I of this chapter)." Subchapter I includes Sec. 7413(d). It would therefore appear that the EPA order disapproving the Texas delay order is appealable to this court under 42 U.S.C. Sec. 7607(b)(1) so long as that disapproval is an "action ... under" Sec. 7413(d).

General Motors and the EPA apparently assume that the EPA order appealed from was indeed an action under Sec. 7413(d), since that section clearly authorizes the EPA to disapprove state-issued delayed compliance orders. It is, however, not obvious that Sec. 7413(d) authorizes the EPA to disapprove such orders after expiration of the statutorily-imposed ninety-day deadline, or after the state order has expired. If the section authorizes no such action, there is no evident basis for assuming that the order appealed from is a "final action of the Administrator" under the chapter. We must therefore explore the consequences of the EPA's procrastination.

We have elsewhere held that when Congress subjects the EPA to explicit statutory deadlines in the Clean Air Act, the EPA may not ignore those deadlines with impunity. American Cyanamid Co. v. U.S. EPA, 810 F.2d 493, 499-501 (5th Cir.1987). In American Cyanamid, we reviewed an effort by the EPA to impose penalties against a Cyanamid plant in Louisiana. The Cyanamid plant had been operating

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in accordance with a revised state implementation plan proposed by Louisiana, but the EPA had not acted upon the proposed revision for several years. The EPA had in fact neither approved nor disapproved the proposed revision at the time Cyanamid was decided. The EPA's failure to act was in disregard of an express requirement in 42 U.S.C. Sec. 7410 that the EPA approve or reject a revised state plan within four months after receiving notice of the revisions.

We held that "the EPA may not collect a penalty for the period between (1) four months after a state submits a proposed revision and (2) the date the EPA rejects the revision." 810 F.2d at 500. We grounded this holding upon a number of considerations. Foremost among these was the cooperative role between the state and federal government envisioned by the Clean Air Act. We said that the issue in Cyanamid was "not so much pollution by American...

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