Bethlehem Steel Corp. v. U.S. E.P.A.

• Decision Date: 22 December 1980
• Docket Number: No. 79-2382,79-2382
• Citation: 638 F.2d 994
• Parties: , 11 Envtl. L. Rep. 20,294 BETHLEHEM STEEL CORPORATION, Petitioner, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 994

638 F.2d 994

15 ERC 1513, 11 Envtl. L. Rep. 20,294

BETHLEHEM STEEL CORPORATION, Petitioner, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 79-2382.

United States Court of Appeals Seventh Circuit.

Argued June 12, 1980.

Decided Dec. 22, 1980.

Bryan G. Tabler, Indianapolis, Ind., for petitioner.

Jane A. Axelrad, U. S. Environmental Protection Agency, Washington, D. C., for respondent.

Before PELL and BAUER, Circuit Judges, and CROWLEY, District Judge. ^*

PELL, Circuit Judge.

Bethlehem Steel Corporation (Bethlehem) has petitioned this court to review an action taken by the United States Environmental Protection Agency (EPA or Agency) pursuant to § 113(d)(2) of the Clean Air Act, 42 U.S.C. § 7413(d)(2) (Supp.1977). The EPA's action disapproved the issuance of a Delayed Compliance Order (DCO) to Bethlehem by the Indiana Air Pollution Control Board (Board) under § 113(d)(1). The DCO allowed Bethlehem an extended period of time greater than it would otherwise have been allowed to comply with the Indiana State Implementation Plan (SIP). EPA approval of the DCO was required by § 113(d)(2). The EPA Administrator finally disapproved the DCO for a variety of reasons on September 17, 1979, and Bethlehem has appealed that disapproval pursuant to § 307(b), 42 U.S.C. § 7607(b).

I FACTS

Although some of the characterizations of the factual occurrences that eventually led to this petition for review are the subjects of substantial disagreement between the parties, the occurrences themselves are not in significant dispute.

Bethlehem owns and operates a steel mill in Burns Harbor, Porter County, Indiana. The mill contains two batteries of coke ovens, each battery containing 84 ovens. Coke oven operations include "charging" (dumping coal from a lorry car into the oven), "coking" (destructing distillation of the coal turning it into coke which is accomplished by heating the inside of the oven in an oxygen-free atmosphere to avoid combustion of the coal), and "pushing" (ramming the hot coke out of the oven into a quench car which conveys the coke to a quench tower for dousing with water). None of these operations normally results in combustion of the coal or coke; nevertheless, coke battery operations do result in the emission of particulate matter into the atmosphere. ¹

The Clean Air Act empowers the federal Government to establish nationwide primary and secondary ambient air quality standards designed to protect the public health and welfare. Train v. Natural Resources Defense Council, 421 U.S. 60, 65, 95 S.Ct. 1470, 1475, 43 L.Ed.2d 731 (1974). Under the Act as amended in 1970, these standards are to be set by the federal EPA but primary responsibility for establishing the necessary measures for achieving these standards is given to the states. 42 U.S.C. §§ 7401(a)(3), 7410(a). Train v. Natural Resources Defense Council, supra at 64, 95 S.Ct. at 1474. The Act requires the state to submit its SIP to the EPA Administrator for his approval, setting forth the means of "implementation, maintenance, and enforcement" of the standards. 42 U.S.C. § 7410(a). To be enforceable, the SIP must be found by the Administrator to meet the statutory criteria specified in §§ 110(a)(2)(A)-(K) of the Act. 42 U.S.C. §§ 7410(a)(2)(A)-(K). If the state's SIP is found not to meet the statutory criteria, the Administrator is empowered to promulgate substitutes for the defective or absent measures. 42 U.S.C. § 7410(c). The EPA is also empowered to enforce the SIP in certain circumstances although primary enforcement responsibility remains with the states. 42 U.S.C. §§ 7413(a), (b). The state may also submit revisions to its SIP pursuant to § 110(a)(3)(A) which also must be reviewed and approved by the Administrator for compliance with the same criteria the original Plan is required to meet. 42 U.S.C. § 7410(a)(3)(A). Lastly, the state may issue orders pursuant to § 113(d) delaying the dates regulated entities are required to comply with the SIP. 42 U.S.C. § 7413(d). These orders, such as the one at issue here, are also subject to EPA veto pursuant to the 1977 amendments to the Act, § 113(d)(2), 42 U.S.C. § 7413(d)(2).

In 1972, the state of Indiana submitted its SIP to the Administrator for his review and approval and the Plan was approved on May 31 of that year. Since that time, the state has regulated the steel industry, including the Bethlehem coke operations at Burns Harbor, pursuant to that Plan and its amendments. ²

The 1972 SIP contained Indiana Air Pollution Control Regulation (APC-3) which was promulgated by the state on December 6, 1968 (1968 APC-3) and which prescribed limitations on visible emissions emitted by "combustion" operations. ³ On October 7, 1974, the state amended its Regulation APC-3 to include under its prescriptions "any" operation, clearly including the coke batteries, and on November 8, 1974, transmitted the revised version to the EPA Administrator for his approval. On October 28, 1975, the Administrator published his determination on the revision. In the Federal Register, the Agency noted its dissatisfaction with "several respects" of the 1974 APC-3, the "most significant" one being that which granted certain operations, including the coke batteries, a 15-minute exemption from compliance in each twenty-four hour period. The Administrator's published conclusions continued:

... For such sources (as the Bethlehem coke operations), at least, (1974) APC-3 would be ineffective and impractical as a surveillance technique.... Accordingly, (1974) APC-3 must be disapproved to the extent that the 15-minute exemption provision in section 1 fails to meet the requirements of (40 C.F.R.) §§ 551.13(e)(1) and 51.19(c).

With the exception of the above noted disapproval actions ... the proposed revisions meet the substantive and procedural requirements of section 110....

40 Fed.Reg. 50032-33.

The Agency here claims that the above statement expressed partial approval of the 1874 revision of Indiana APC-3, that part being the 1974 version without the 15-minute exemption. The Agency concludes, therefore, that the 1974 version, minus the exemption, became an enforceable part of the Indiana SIP which governed the Bethlehem coke operations. Bethlehem, on the other hand, contends that the Agency has no statutory authority to issue "partial" approvals of state revisions of its SIP and claims that to allow such an approval here would be to allow a federal revision of the state Plan without compliance with the procedures set forth in § 110. The company concludes, therefore, that the comments in the Federal Register must be interpreted to accomplish a disapproval of the 1974 revision as a whole, and, therefore, that the 1968 APC-3 remained the only enforceable regulation governing visible emissions. This dispute is important to the present case because one of the reasons the Administrator gave for his disapproval of the DCO here was that he interpreted the DCO to demand compliance with an APC-3 other than the one he contends was partially approved in 1974.

The DCO was issued by the Indiana Air Pollution Control Board on November 15, 1978. The Order stated that the Board's investigation disclosed "possible violations" by Bethlehem of the standards set forth in "Indiana Regulations APC-3 and APC-5," and granted Bethlehem an extension of time within which it was required to obtain compliance with the Regulations. ⁴ The Order provided in detail various interim time requirements Bethlehem was to meet, and required that Bethlehem's pushing and charging operations be brought into final and full compliance with the state SIP by July 1, 1979. The Indiana Board then notified the federal EPA of its intent to enforce the DCO, although the exact date and the sufficiency of the notice is open to dispute between the parties. Bethlehem claims that the Administrator was notified either by issuance of the Order by the Board on November 15, 1978, or by publication of the issuance in the Gary Post Tribune on October 18, 1978. The Agency, on the other hand, contends that it did not receive adequate notice of the Board's action until December 26, 1978. The parties contend that the correct date is important here for two reasons. First, Bethlehem correctly points out that § 113(d)(2) of the Act requires the Administrator to issue his approval or disapproval of the DCO governing a "major stationary source" (such as Bethlehem's coke operations) within 90 days "of receipt of notice of the issuance of (the DCO)." 42 U.S.C. § 7413(d)(2). ⁵ In this case, the Administrator failed to release his proposed disapproval until March 7, 1979, and failed to release his final disapproval until September 17, 1979. Bethlehem concludes, therefore, that the disapproval is voided by § 113(d)(2).

Second, § 113(d)(10) provides that during the period a DCO is "in effect" and the regulated operator is "in compliance" with the DCO, no federal enforcement action may be pursued. 42 U.S.C. § 7413(d)(10). As stated previously, the Indiana DCO was issued on November 15, 1978 and delayed the time Bethlehem was required to comply with the SIP until July 1, 1979. However, the EPA instituted an enforcement proceeding for the Bethlehem coke batteries' non-compliance with the SIP on December 21, 1978. United States of America v. Bethlehem Steel Corporation, No. H78-491. Bethlehem claims, therefore, that the action violated § 113(d)(10). The EPA, however, claims that because the DCO was not approved by the Administrator at the time the civil action was filed, the action was not instituted while the DCO was "in effect." In this argument, the Agency relies upon the provision in § 113(d) (2) that DCO's issued to "major stationary sources" are unenforceable until approved by the Administrator. 42 U.S.C. § 7413(d)(2). The Administrator concludes, therefore, that § 113 was not violated by the filing of the enforcement action. In addition, the Administrator contends...