Bethlehem Steel Corp. v. U.S. E.P.A.
| Decision Date | 13 December 1983 |
| Docket Number | No. 82-2608,82-2608 |
| Citation | 723 F.2d 1303 |
| Parties | , 75 A.L.R.Fed. 315, 14 Envtl. L. Rep. 20,090 BETHLEHEM STEEL CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Save the Dunes Council and Citizens for a Better Environment, Intervenors-Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Bryan G. Tabler, Barnes & Thornburg, Indianapolis, Ind., for petitioner.
David T. Buente, Jr., Dept. of Justice, Washington, D.C., for respondent.
Edward W. Osann, Jr., Leydig, Voit, Ossan, Mayer & Holt, Ltd., Chicago, Ill., for Intervenors-respondents.
Before WOOD and POSNER, Circuit Judges, and GORDON, Senior District Judge. *
Section 109 of the Clean Air Act, as amended in 1970, required the EPA to establish air quality standards, and section 110 required the states to adopt implementation plans for attaining those standards. See 42 U.S.C. Secs. 7409, 7410; Train v. Natural Resources Defense Council, 421 U.S. 60, 64-67, 95 S.Ct. 1470, 1474-1476, 43 L.Ed.2d 731 (1975). To speed progress toward attainment Congress in the Clean Air Act Amendments of 1977 added to the Clean Air Act (effective August 7, 1977) section 107(d), 42 U.S.C. Sec. 7407(d), paragraph 1 of which required each state, within 120 days (i.e., by December 7, 1977), to submit to the EPA a list of attainment areas (areas in which the air quality standards had been attained), nonattainment areas, and areas that could not be classified either way on the basis of available information. Another new section, section 172, 42 U.S.C. Sec. 7502, prescribed new, more stringent requirements for state implementation plans in nonattainment areas. Compare 42 U.S.C. Sec. 7410(a). See generally Currie, Air Pollution: Federal Law and Analysis, ch. 6 (1981). The states were given till January 1, 1979, to submit their section 172 plans for such areas (see Pub.L. 95-95, Sec. 129(c) (not codified), 91 Stat. 750-51 (1977); see also 42 U.S.C. Secs. 7410(a)(2)(I), 7506(a), 7616(b)), while attainment and unclassifiable areas were made subject to provisions of the 1977 amendments designed to prevent any significant deterioration in air quality, notably section 163, 42 U.S.C. Sec. 7473; see Currie, supra, Sec. 7.01, as well as remaining subject to the pertinent requirements of the 1970 amendments, in particular section 110. Complying with section 163 by preventing significant deterioration in the existing quality of the air is of course easier than complying with section 172, whose purpose is to raise air quality above existing levels.
Paragraph 2 of section 107(d) is the key provision in this case: The question we are asked to decide--one of first impression--is whether the EPA may modify a list after promulgation, to change an air quality control region from an unclassifiable to a nonattainment area. (On the evolution of the EPA's policy regarding this and cognate issues, see EPA, Compliance With the Statutory Provisions of Part D of the Clean Air Act, 48 Fed.Reg. 50,686 (Nov. 2, 1983); and for the full text of section 107(d) see the appendix to this opinion.)
When the State of Indiana submitted its original list of air quality control regions, Porter County (on Lake Michigan), which includes the Burns Harbor Works of Bethlehem Steel Corporation, was designated unclassifiable, and it was so designated in the list promulgated by EPA on March 3, 1978, pursuant to section 107(d)(2). Four and a half years later, on August 18, 1982, the EPA reclassified a portion of Porter County that includes the Burns Harbor Works as a Bethlehem Steel asks us to set aside this reclassification order. It bases our jurisdiction on section 307(b)(1) of the Clean Air Act, 42 U.S.C. Sec. 7607(b)(1), which so far as relevant here gives the courts of appeals review jurisdiction over "final action" by the Administrator. Reclassifying an area as a nonattainment area triggers definite and grave consequences under the 1977 amendments and therefore possesses the requisite finality, as several courts held when review was sought of the EPA's original designations of nonattainment areas pursuant to section 107(d)(2). See Western Oil & Gas Ass'n v. EPA, 633 F.2d 803, 807-08 (9th Cir.1980); Currie, supra, Sec. 9.08 at p. 9-25 and n. 11. We also think that Bethlehem, as the principal source of particulate emissions in the reclassified area of Porter County (Bethlehem argues that the area was gerrymandered to include the Burns Harbor Works and little else, and whether this argument is correct or not, a question we need not decide, there is no doubt that the Works are the principal polluter in the reclassified area), has standing as an injured party to file this petition. Without some injury, there would be no "case" or "controversy" between Bethlehem and the EPA within the meaning of Article III of the Constitution; but it is inconceivable that the State of Indiana could comply with the requirements of section 172 without taking measures to reduce particulate emissions from the Burns Harbor Works, to the injury of Bethlehem which would incur costs in complying with those measures.
nonattainment area for particulate matter, and gave the state one year to submit a new implementation plan that would provide for attainment of the federal air quality standards within three and a half years after the EPA approves the plan, which EPA says it will do within six months of submission if the plan is acceptable. EPA, Designation of Areas for Air Quality Standards: Indiana, 47 Fed.Reg. 35,965 (Aug. 18, 1982).
The EPA argues that Bethlehem forfeited its right to get judicial review of the reclassification of Porter County as a nonattainment area by not having sought, within section 307(b)(1)'s 60-day time limit, judicial review of the interpretive regulation (40 C.F.R. Sec. 81.300 (1978)) in which the EPA announced that it could reclassify areas after promulgation of the original list. However, the 60 days for challenging the regulation expired long before the EPA redesignated part of Porter County as a nonattainment area; and Bethlehem was not required to challenge a regulation just because the regulation might some day harm it. Whether or not such a challenge would have had to be dismissed as premature, on which see generally Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1034, 1039-41 (1st Cir.1982), it makes no sense at a time of heavy federal judicial caseloads to encourage people to challenge regulations that may never harm them.
We come then to the merits of Bethlehem's statutory challenge. The first sentence of section 107(d)(2) requires the EPA's Administrator to promulgate the list of air quality control regions submitted by the state, "with such modifications as he deems necessary," within 60 days of that submission. Although the next sentence merely requires the agency to notify the state before it modifies the state's list, the agency finds in the first word of that sentence--"whenever"--a power of modification without limitation of time. But as used in the sentence, "whenever" seems to mean "in any or every instance in which"--a common usage of the word, see Webster's Third New International Dictionary 2602 (1971)--rather than "at any time." Read naturally, the first sentence requires the EPA to promulgate the list with all necessary modifications within 60 days and the second sentence requires the EPA in advance of promulgation to notify states of its intention to make modifications.
A section-by-section analysis of the bill that became section 107(d), prepared by committee staff, supports this reading. It says, "The Administrator shall promulgate such list within 60 days with any necessary modifications, after notifying and receiving any comment from the State." Staff of It is true that another provision in the 1977 amendments, section 171, 42 U.S.C. Sec. 7501(2), defines nonattainment area as "an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard ..." and also states that the "term includes any area identified under" section 107(d). Since section 171 neither refers to a time limit nor suggests that section 107(d) provides the only procedure for designating an area as a nonattainment area, it can be argued that any time the EPA finds that an area has become a nonattainment area it can reclassify it. See Currie, supra, Sec. 6.04 at p. 6-12. But there is no indication that Congress intended section 171, a definitional provision, to nullify the time limits in section 107(d). The apparent purpose of section 171, suggested by its caption ("Definitions"), is the modest one of defining "nonattainment area," not the ambitious one of creating an alternative procedure for reclassifying areas as attainment areas. No procedures for reclassification are set forth other than in section 107(d).
Subcomm. on Environmental Pollution of the S. Comm. on Environment and Public Works, A Section-by-Section Analysis of S. 252 and S. 253 Clean Air Act Amendments, 95th Cong., 1st Sess. 1 (Feb.1977). And in summarizing the provisions of the bill, the committee reports do not even bother to mention the "whenever" sentence, which makes it unlikely that it was intended to have the dramatic effect that EPA ascribes to it. See S.Rep. No. 127, 95th Cong., 1st Sess. 21...To continue reading
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