National Steel Corp., Great Lakes Steel Div. v. Gorsuch, 81-3406

• Decision Date: 14 February 1983
• Docket Number: No. 81-3406,81-3406
• Citation: 700 F.2d 314
• Parties: , 13 Envtl. L. Rep. 20,295 NATIONAL STEEL CORPORATION, GREAT LAKES STEEL DIVISION, Petitioner, v. Anne B. GORSUCH, Administrator, U.S. Environmental Protection Agency, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 314

700 F.2d 314

18 ERC 1794, 13 Envtl. L. Rep. 20,295

NATIONAL STEEL CORPORATION, GREAT LAKES STEEL DIVISION, Petitioner, v. Anne B. GORSUCH, Administrator, U.S. Environmental

Protection Agency, Respondent.

No. 81-3406.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 3, 1982.

Decided Feb. 14, 1983.

Peter G. Veeder, Chester R. Babst, III, Louise W. Yoder, Thorp, Reed & Armstrong, Pittsburgh, Pa., for petitioner.

Anne B. Gorsuch, Adm'r, U.S.E.P.A., Eric B. Smith/William Pedersen, Pollution Control Div., Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Margaret A. Corrigan, Asst. Regional Counsel, U.S.E.P.A. Region V, Chicago, Ill., for respondent.

Before ENGEL and JONES, Circuit Judges, and VAN PELT, Senior District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

The Environmental Protection Agency (EPA), in a final agency action pursuant to the Clean Air Act, as amended, 42 U.S.C. Sec. 7401, et seq., has approved, conditionally approved, and disapproved various provisions of the State Implementation Plan adopted by the State of Michigan in an effort to comport with nationally-required air quality standards. Petitioner National Steel Corporation, Great Lakes Steel Division, is seeking review of that action. For the reasons detailed below, we find that the EPA administrator neither overstepped the bounds of her authority nor made decisions which were "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1970). Accordingly, we affirm the EPA final action.

I

A combined state and federal program to control air pollution was formulated in 1970 through various amendments to the Clean Air Act, 42 U.S.C. Sec. 7401, et seq. (the Act). Pursuant to the mandates of Secs. 108 and 109 of the Act, the EPA promulgated national ambient air quality standards (NAAQS) for a variety of pollutants. The standards relevant to the case before us are those governing total suspended particulates in the air. ¹ The limitations on particulate matter were set at levels deemed necessary to protect the public health and welfare.

The states were given the primary responsibility for achieving these air quality levels and, absent special circumstances, were required to do so by 1975. In keeping with this responsibility, the states were required, under Sec. 110 of the Act to develop state implementation plans (SIPs) providing for the attainment and maintenance of the federal standards. The administrator was required to approve any state plan satisfying the criteria detailed in Sec. 110(a)(2)(A)-(H). ² See Union Electric Co. v. EPA, 427 U.S. 246, 250, 96 S.Ct. 2518, 2522, 49 L.Ed.2d 474 (1975). If, however, a state either failed to submit a plan, submitted an inadequate one, or failed to revise its plan when required to do so, the administrator was to promulgate a federal plan aimed at achieving the appropriate air quality in that state. 42 U.S.C. Sec. 7410(c).

As of 1975, portions of many states had failed to achieve the national standards, despite the existence of previously approved SIPs. The Act was amended in 1977 in order to deal with these "nonattainment areas". Under the amendment (now Part D of Title I of the Act), states are required to submit revisions to their SIPS demonstrating that the NAAQS will be attained "as expeditiously as practicable," though no later than the end of the 1982 calendar year.

These Part D plans must meet the requirements of Sec. 172(b) of the Act. In pertinent part, Sec. 172 provides that the SIP shall, inter alia:

(2) provide for the implementation of all reasonably available control measures as expeditiously as practicable;

(3) require, in the interim, reasonable further progress (as defined in Section 171(11)) including such reduction in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT).

42 U.S.C. Sec. 7502(b).

In an effort to, at minimum, prevent the exacerbation of existing nonattainment problems, Congress required all SIPs to provide for a moratorium on the construction of new sources of pollutants, or on the modification of existing ones, unless the state had an approved Part D plan by July 1, 1979. Michigan did not have an approved plan by the deadline and the EPA imposed the required moratorium.

In determining the requirements for an acceptable Part D plan, the EPA addressed a number of practical concerns. Most relevant to this case was the stance the EPA took with regard to fugitive emissions--i.e., matter having a negative impact on air quality which does not originate from a stack or vent, including, but not limited to, dust from ore storage piles, road dust and dust from nonindustrial urban sources. Since these emissions could easily play a significant role in nonattainment, and are so difficult to measure or control, it was clear that attainment would be difficult to demonstrate. The EPA recognized the possibility that a state might require RACT and still be unable to demonstrate attainment because of these immeasurables.

To avoid this problem, the EPA established alternative criteria for determining whether a state's plan was acceptable. First, the EPA decided to approve state plans where the state mandated RACT on all major stationary sources, met the other requirements of Sec. 172, ³ and agreed to submit a schedule of measures to control fugitive sources of matter. Alternatively, the EPA decided to approve state plans which could demonstrate attainment "as expeditiously as practicable" without requiring RACT.

In order to assess whether a particular Part D SIP revision reflected RACT, EPA amassed data indicating levels of performance achieved by application of control technology at particulate sources. A particularly large amount of data was compiled with regard to iron and steel sources. On September 8, 1980, the EPA announced that it had compiled a "guidance" document summarizing that data. The EPA indicated that it would combine this data with that presented by the state and then approve, disapprove or conditionally approve ⁴ all elements of the SIPs submitted.

Applying this statutory and regulatory scheme, the EPA approved Michigan's original SIP in 1972. In 1978, however, the administrator designated certain areas of Michigan, including Detroit, "nonattainment areas" for particulate matter and various chemicals. On April 25, 1979, Michigan submitted its required Part D revisions for these areas.

On May 22, 1981, the EPA published a notice of final rulemaking with regard to Michigan's Part D revisions for those nonattainment areas containing iron and steel sources. The overall strategy for emission and particulate matter control in these source areas was conditionally approved upon the state's commitment to adopt regulations which the EPA felt reflected RACT. The specific provisions of the SIP were approved, conditionally approved and/or disapproved as follows:

(1) EPA disapproved the state emission limitations for blast furnaces, ⁵ heating and reheating furnaces, ⁶ and sintering plants ⁷ because data contained in EPA's RACT materials indicated that more stringent limitations would be achievable.

(2) EPA conditionally approved the rule for pushing emissions from slot-type coke ovens. ⁸ (3) EPA conditionally approved the rule for standpipe assembly emissions during the coke cycle from slot-type coke ovens. ⁹

(4) EPA conditionally approved the emission limitations for coke oven quench towers. ¹⁰

(5) EPA conditionally approved the emission limitation for scarfing. ¹¹

It is this final rulemaking with regard to iron and steel sources which Great Lakes Steel contests.

II

This Court's standard of review with regard to EPA action concerning a SIP is an extremely narrow one. The standards set out in the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706, are controlling. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971); South Terminal Corp. v. Environmental Protection Agency, 504 F.2d 646, 655 (1st Cir.1974). Those APA guidelines require us to determine whether the EPA followed the proper lawful procedures and acted within its statutory authority when it promulgated its final rulemaking and whether that rulemaking is constitutional. If so, we may set aside the EPA actions only if we find that the actual choices made were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A).

In Northern Ohio Lung Association v. EPA, 572 F.2d 1143 (6th Cir.1978), we described how these latter determinations are to be made:

Scrutiny of the facts does not end, however, with the determination that the [administrative officer] has acted within the scope of his statutory authority. Section 706(2)(A) [of the Administrative Procedure Act] requires a finding that the actual choice made was not "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) [1970]. To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment ...

... although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. (Emphasis in original.)

Id. at 1148, (quoting Buckeye Power, Inc. v. EPA, 481 F.2d 162, 171 (6th Cir.1973)). See also Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150 (6th Cir.1978).

The petitioner nowhere contends that the rulemaking at issue was unconstitutional. However, Great Lakes Steel does raise a series of objections claiming, at various points, that the EPA has overstepped its statutory authority and/or has acted arbitrarily in its specific determinations.

III

The petitioner's first...