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

• Decision Date: 03 January 1986
• Docket Number: Nos. 84-1168,84-1182 and 84-1196,s. 84-1168
• Citation: 782 F.2d 645
• Parties: , 16 Envtl. L. Rep. 20,268 BETHLEHEM STEEL CORPORATION, Jones and Laughlin Steel Inc., United States Steel Corporation, and Citizens for a Better Environment, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 645

782 F.2d 645

23 ERC 1873, 16 Envtl. L. Rep. 20,268

BETHLEHEM STEEL CORPORATION, Jones and Laughlin Steel Inc.,

United States Steel Corporation, and Citizens for

a Better Environment, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 84-1168, 84-1182 and 84-1196.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 23, 1985.

Decided Jan. 3, 1986.

Robert E. Yuhnke, Citizens for a better Environment, Laurence A. McHugh, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., Bryan G. Tabler, Barnes & Thornburg, Indianapolis, Ind., for petitioners.

William Pederson, Assoc. Gen. Counsel, Air, Noise, Rad. Div. U.S. Environmental Agy., Washington, D.C., Scott Slaughter, Environmental Defense Sec. Land & Natural Resources Div. Dept. of Justice, Washington, D.C., for respondent.

Before POSNER and FLAUM, Circuit Judges, and SWYGERT, Senior Circuit Judge.

POSNER, Circuit Judge.

We have consolidated three petitions to review portions of two orders that the Environmental Protection Agency issued in December 1983: Approval and Promulgation of Air Quality Implementation Plans; Coke Batteries, Indiana, 48 Fed.Reg. 54599 (Dec. 6, 1983), and Approval and Promulgation of Implementation Plans; Indiana, 48 Fed.Reg. 55852 (Dec. 16, 1983). Those orders partly approved and partly disapproved the State of Indiana's then latest revised plan for attaining compliance with the Clean Air Act, as amended, 42 U.S.C. Sec. 7401 et seq.--what is called a "state implementation plan." One of the two petitions, filed by two steel companies, complains about the agency's disapproval in its order of December 6 of parts of the state plan that regulate coke oven doors and the "pushing" and "quenching" phases of coke production. The petition of these companies, as well as the petition of a third steel company, also complains about the agency's decision in its order of December 16 to discontinue consideration of 1979 APC [Air Pollution Control]-9, a regulation proposed by the State of Indiana in an earlier revision of its state implementation plan and relating to the opacity of emissions from coke oven batteries. The companies want us to order the agency to act on that proposal--not let it (in their words) "pocket veto" the proposal by inaction. The third petition, filed by a citizens group, complains that the orders do not go far enough, and asks us to order the agency to undertake an additional rulemaking proceeding.

To understand this extremely complex case (which we shall ruthlessly simplify for the sake of intelligibility), you must know something about the scheme of the Clean Air Act and about the special problems of regulating air pollution caused by making coke. The Act, as comprehensively overhauled in 1970 (until then it had been quite toothless), contemplates a state-federal partnership for the control of air pollution. See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1034-36 (7th Cir.1984); Currie, Air Pollution: Federal Law and Analysis (1981). The federal government establishes the permitted limits on particular pollutants, and then the states submit plans for achieving compliance with those limits (the "state implementation plans"). These plans are long documents, frequently revised, which contain many specific regulations, and which, before they can become effective, the Environmental Protection Agency must approve. If the EPA disapproves a particular regulation, it may either return the matter to the state for the preparation of a substitute regulation or it may, though only after notice and an opportunity for a hearing, promulgate its own regulation. Once a regulation is in force failure to comply with it exposes the polluter to heavy penalties. Additional major amendments to the Act were made in 1977, see Bethlehem Steel Corp. v. EPA, 723 F.2d 1303, 1304, 1305 (7th Cir.1983), but they are relevant to only a part of this case, so we postpone discussion of them till later.

Because of pervasive uncertainty regarding both the consequences of air pollution and the best methods of abating it, and enormous costs of abatement, the administration of the Clean Air Act has been afflicted by the related plagues of controversy, litigation, and delay, and nowhere more so than in the steel industry clustered in northern Indiana, on the southern shore of Lake Michigan. The production of steel is an extremely dirty process and the costs of bringing the industry into full compliance with federal air quality standards therefore immense. See H.R.Rep. No. 121, 97th Cong., 1st Sess. 4-9 (1981) (tabs. 1-3). Price increases that would pass on most of the costs of compliance to the consumers of steel would be difficult to make stick in the face of intense foreign competition. The industry would have to adjust by contraction--with all the social dislocations that the contraction of a major employer implies--beyond even the contraction that intense foreign competition has made inevitable.

A particular concern regarding the northern Indiana steel industry has been pollution from coke ovens. Coke of course is an input into the production of steel. It is made by heating coal in huge, almost airless ovens, arrayed in batteries. Because of the dearth of oxygen, the transformation through heating of coal into coke is not a combustion (burning) process, and hence the pollution that is produced as a byproduct of the process is not a product of incomplete combustion. More to the point, this pollution is not vented in the usual way that the products of incomplete combustion are vented--through chimneys or smokestacks or the tailpipes of automobiles. Vented in that fashion it would be easier to deal with; or at least to measure, by putting a valve on the stack--and measurement is an essential part of determining compliance and hence of pollution control. The ovens are heated by a combustion process and the smoke produced by it is carried off in stacks, but this pollution is regulated in conventional ways and is not a point of controversy in this case.

The heating of the coal in the coke ovens throws off a dense yellow-brown mixture of gases called coke oven gas, which contains particulates and which can leak around the oven doors (as well as through cracked oven walls and piping) and thence out of the plant and into the atmosphere. The amount of leaking gas is greatest at the beginning of the heating process, since after a while the tars in the coke oven gas condense on the door, sealing it and thereby greatly reducing the leakage of gas. After the heating is completed the doors are opened and the coke "pushed" into rail cars for transfer to the "quench tower," where the coke is sprayed with water to cool it off. Pushing and quenching throw up clouds of dust and steam (respectively) mixed with particulate matter, which again leak out of the plant and into the atmosphere.

Because heating, pushing, and quenching are intermittent, punctuating the daily life of the plant with bursts of gas, dust, and steam that cannot be vented through stacks (apparently it is not feasible to seal the whole plant and vent all of its emissions through stacks), the noncombustion emissions of a coking operation cannot easily be regulated just by setting an overall limitation on the amount of emissions. To assure compliance with such a regulation, monitoring instruments would have to be set up all around and above the steel plant and checked at frequent intervals in order to measure the total emissions from the coking process, and even then it would be necessary to separate those emissions from other emissions from the plant and from neighboring sources of pollution. And if the emissions could be measured, still it would be impracticable to achieve the desired limitation by installing a scrubber, catalyst, filter, or other control of the type familiar in regulating other "stationary source" pollution, precisely because the emissions are not vented through a pipe or stack, which could be fitted with such a device. Hence the strategy of opacity limitation and the separate regulation of oven doors, pushing, and quenching (some of the regulations employing pollution control devices, others not)--the aspects of the EPA's December 1983 orders that the steel companies' petitions have drawn in question.

The early history of Indiana's struggle to regulate the opacity of noncombustion coking emissions is told in our opinion in Bethlehem Steel Corp. v. Gorsuch, cited earlier, and can therefore be recounted here very briefly. Indiana's original state implementation plan, submitted to the EPA in 1972, contained a regulation, 1972 APC-3, which placed a 40 percent limitation (technically, No. 2 on the Ringelmann Chart, a measure of color rather than opacity but used as a proxy for the latter) on the opacity of emissions. The opacity of a plume of smoke or a cloud of dust or steam is the degree to which the plume or cloud can be seen through by an observer, the "plume observer" as he is called, usually a state pollution control inspector. Though a measure of unsightliness, opacity is not itself a form of pollution regulated by federal law; it is a proxy for particulate emissions; the more opaque the dust or smoke, the more particulates it can be expected to contain, on average. Because opacity sometimes is easier to measure than particulates, it is commonly used as a method for indirectly monitoring and limiting the amount of particulates in emissions, and was so used in Indiana's 1972 APC-3. With regard to noncombustion emissions, however, which are the focus of concern in the present case, the regulation made failure to meet the 40 percent standard only prima facie evidence that the coke battery was in violation of the limitation (embodied in a companion regulation, 1972 APC-5) on particulates. The prima facie case could be rebutted by presenting acceptable evidence that the particulates limitation itself--the ultimate aim of the implementation plan...