Bethlehem Steel Corp. v. Gorsuch, 82-2884

• Citation: 742 F.2d 1028
• Decision Date: 22 August 1984
• Docket Number: No. 82-2884,82-2884
• Parties: , 14 Envtl. L. Rep. 20,740 BETHLEHEM STEEL CORPORATION, Petitioner, v. Anne M. GORSUCH, Administrator of the United States Environmental Protection Agency, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1028

742 F.2d 1028

21 ERC 1481, 14 Envtl. L. Rep. 20,740

BETHLEHEM STEEL CORPORATION, Petitioner, v. Anne M. GORSUCH, Administrator of the United States

Environmental Protection Agency, Respondent.

No. 82-2884.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 28, 1983.

Decided Aug. 22, 1984.

Bryan G. Tabler, Barnes & Thornburg, Indianapolis, Ind., for petitioner.

Catherine A. Cotter, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., for respondent.

Before CUDAHY and POSNER, Circuit Judges, and WILKINS, Senior District Judge. ^*

POSNER, Circuit Judge.

The Bethlehem Steel Corporation petitions us to set aside an order of the Environmental Protection Agency made under the authority of the Clean Air Act, as amended, 42 U.S.C. Secs. 7401 et seq. The petition and the EPA's response raise several difficult issues: the scope of a 1972 air pollution regulation issued by the State of Indiana; the EPA's power under the Clean Air Act to alter, by partially approving, state air pollution regulations; and the timeliness of Bethlehem's challenge to the partial approval.

In 1972 the State of Indiana, pursuant to section 110(a) of the Clean Air Act, as amended, 42 U.S.C. Sec. 7410(a), submitted to the EPA a plan for implementing the EPA's air quality standards. This "state implementation plan" (SIP) included an air pollution control regulation (originally promulgated in 1968) that we shall call 1972 APC-3. Although the precise application of this regulation to noncombustion emissions from Bethlehem's Burns Harbor Works on the south shore of Lake Michigan was unclear, the state in 1974 submitted a revised plan which included a revision of 1972 APC-3 that clearly did apply to those emissions. As part of its review of the revised plan, the EPA in 1975 issued an order that (we now know) was intended as a partial approval of 1974 APC-3. 40 Fed.Reg. 50032, 50033 (Oct. 28, 1975). The state then issued an order (a "delayed compliance order" or DCO) setting a timetable for Bethlehem to comply with APC-3. The EPA disapproved this compliance order in 1979, and Bethlehem petitioned us to set aside the order of disapproval. We remanded the case, however, because the basis of the order was unclear. Bethlehem Steel Corp. v. EPA, 638 F.2d 994, 1007 (7th Cir.1980). On remand the EPA reinstated the order, making clear that the basis of the order was that the state's compliance order had not directed Bethlehem to comply with 1974 APC-3 as it had been modified by the EPA in 1975. 47 Fed.Reg. 43377, 43378 (Oct. 1, 1982).

Bethlehem came back to us, asking that we set aside the order of disapproval on the ground that the EPA-modified version of 1974 APC-3 was invalid and therefore the state could not be made to make Bethlehem comply with it. It was invalid, Bethlehem argued, because the EPA, bypassing statutory procedures for the revision of a state implementation plan, had improperly used the technique of "partial approval" to make 1974 APC-3 a stricter regulation than the state had intended either in the state's own version of 1974 APC-3 or in the previous regulation, 1972 APC-3. The EPA disagreed that it had made the state's regulation stricter, alternatively claimed the power to make it stricter by partial approval, and argued that in any event Bethlehem should have challenged the partial approval back in 1975. By a split decision we affirmed the EPA's order earlier this year. Bethlehem filed a petition for rehearing with suggestion of rehearing en banc, and though the suggestion was turned down the panel unanimously decided to reconsider the case. We vacated our decision, asked the parties to submit supplemental briefs directed to specific questions put by the panel, and now proceed to decide the case anew.

The same Indiana implementation plan that contained 1972 APC-3 also contained 1972 APC-5, which placed a ceiling on the amount of particulates emitted by the coking operations at the Burns Harbor Works. Coke is made by heating coal in oxygen-free ovens which give off smoke and dust ("particulate emissions") that are vented through stacks. These emissions are noncombustion emissions, because no combustion occurs in the ovens. The ovens are heated by combustion, however, and the smoke produced by this combustion is vented through other stacks. 1972 APC-5 clearly covered both combustion and noncombustion emissions.

Indiana's APC-3 (of whatever vintage) regulates opacity, a visual measure of pollution, rather than particulate level, a chemical measure. A tiny pencil of smoke, harmless to health but impossible to see through, would be 100 percent opaque. The parties describe opacity limitations as proxies for limitations on particulate levels. Cf. National Lime Ass'n v. EPA, 627 F.2d 416, 446-51 (D.C.Cir.1980); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 400-01 (D.C.Cir.1973), after remand, Portland Cement Ass'n v. Train, 513 F.2d 506 (D.C.Cir.1975). Particulate levels are more difficult to measure than opacity--which, literally, is measured by looking at the plumes of smoke (the people who do this are called "plume observers"). Levels of particulates in noncombustion omissions are especially difficult to measure because such emissions are highly irregular.

1972 APC-3 placed a 40 percent opacity limitation on emissions from the Burns Harbor Works. But there was a question of coverage. One sentence in the regulation stated: "No person shall operate any combusion installation so as to produce, cause, suffer or allow smoke to be emitted, the appearance, density or shade of which is darker than No. 2 of the Ringelmann Chart." (Although the Ringelmann Chart measures darkness rather than opacity, No. 2 on the Chart is a commonly used proxy for 40 percent opacity.) If this were all there was to the regulation it could have no application to Bethlehem's noncombustion installations, that is, to the ovens themselves as distinct from the boilers that heat them. But another sentence states: "The opacity of any color equivalent to the Ringelmann Chart may be used as prima-facie evidence in determining process emissions but may be refuted by approved stack emission tests or other evidence acceptable to the [Indiana air pollution control] Board." At the very most, however, this means that noncombustion emissions that flunk the 40 percent opacity test violate the regulation prima facie but that Bethlehem can rebut the prima facie case by showing that the level of particulates in its noncombustion emissions is within the ceiling fixed by APC-5. On this reading, 1972 APC-3 and 1972 APC-5 between them established two independent limitations on combustion emissions--opacity and particulate level--but only one on noncombustion emissions--particulate level; for with respect to noncombustion emissions the opacity limitation could be used only to force Bethlehem to prove that it was complying with APC-5, though admittedly the burden of proof might be difficult to carry because of the difficulty of measuring particulate levels in emissions from noncombustion sources.

Probably the second quoted sentence is even less restrictive than we have suggested. This is not because it omits "noncombustion emissions"; we may assume from the definition of "process" elsewhere in the state implementation plan that "process emissions" include noncombustion emissions. The important thing is that the sentence does not mention any specific opacity limitation and just says that opacity "may be used" to make out a prima facie case. It seems therefore that 1972 APC-3 imposed no actual restriction on noncombustion emissions, but merely authorized the state to impose a restriction.

The revision of 1972 APC-3 that Indiana submitted to the EPA in 1974 eliminated the distinction between combustion and noncombustion emissions and, without equivocation, made the 40 percent opacity measure a mandatory limitation on both sources; gone was the prima facie case. But 1974 APC-3 allowed the opacity limitation to be exceeded for up to 15 minutes every 24 hours. In the course of reviewing the 1974 revisions of Indiana's implementation plan, the EPA touched briefly on 1974 APC-3 and concluded that "APC-3 must be disapproved to the extent that the 15-minute exemption provision ... fails to meet the requirements of" the applicable federal air quality standards. The order does not state explicitly that the EPA is approving the rest of 1974 APC-3 but does say (after discussing the other APC's in the revised Indiana plan) that "with the exception of the above-noted disapproval actions and material returned to the State or held in abeyance pending further review, the proposed revisions meet the substantive and procedural requirements of Section 110 of the Clean Air Act ... and are hereby approved as revisions to the Indiana Implementation Plan, effective immediately." 40 Fed.Reg. at 50033. This order, insofar as it pertains to 1974 APC-3, is the "partial approval" challenged by Bethlehem.

The EPA argues that this challenge comes too late. A proceeding to review an EPA order approving an original or revised state implementation plan (or part thereof) must be filed in the court of appeals within 60 days after the order is issued. See section 307(b)(1) of the Clean Air Act, as amended, 42 U.S.C. Sec. 7607(b)(1). (This provision dates only from 1977, but a similar provision, though allowing only 30 days, was in force in 1975.) The EPA issued its order partially approving 1974 APC-3 in 1975, and it was not till 1979, when the agency disapproved the compliance order issued by the Indiana board, that Bethlehem sought judicial review. But the EPA's order disapproving the state's compliance order was itself reviewable under section 307(b)(1). Although such orders are not among those mentioned by name as orders reviewable under this section, they fall within the section's catch-all provision making reviewable "any other final action" by the EPA under the Clean Air Act. This...