An Administrative Review of an Order of the United States Environmental Protection Agency.
Before CUDAHY and POSNER, Circuit Judges, and WILKINS, Senior District Judge.*fn**
CUDAHY, Circuit Judge. The petitioner, Bethlehem Steel Corporation ("Bethlehem"), petitions for review of an order (the "1982 Order") of the United States Environmental Protection Agency (the "EPA") disapproving a Delayed Compliance Order ("DCO") issued to Bethlehem by the Indiana Air Pollution Control Board ("Indiana Board"). EPA's only stated ground, at this stage of the proceedings, for disapproving the DCO is that the DCO does not require compliance with the version of the Indiana Air Pollution Control Regulation APC-3 ("APC-3") which EPA contends it had previously approved in 1975. Bethlehem, therefore, also petitions for review of the 1975 EPA order ("1975 Order") approving the EPA version of APC-3. We have jurisdiction to review these EPA orders under section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1) (Supp. V 1981). We hold that the version of APC-3 which EPA claims to have approved in 1975 is the only valid and enforceable version of that regulation and that the DCO refers to an incorrect inversion of APC-3. We therefore affirm the EPA's 1982 Order disapproving the DCO issued to Bethlehem by the Indiana Board.
Bethlehem owns and operates an integrated steel mill in Burns Harbor, Porter County, Indiana.*fn1 The mill contains two coke oven batteries of 84 coke ovens each. Coke oven operations include "charging" (dumping the coal from a lorry car into the oven), "coking" (destructive distillation of the coal turning it into coke by heating it in an oxygen-free atmosphere so that no combustion occurs), and "pushing" (ramming the hot coke into a quench car to be taken to the quench tower for dousing with water). According to Bethlehem, none of these processes causes the emission of combustion products which are regulated by the Indiana Board's DCO at issue here. However, the pushing and charging and, to a lesser extent, coking operations do result in particulate emissions.
The Clean Air Act (the "Act") established a combined state and federal program to protect the public health and welfare from the adverse effects of air pollution. 42 U.S.C. § 7401 et seq.; Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 65 (1974). The Act requires the EPA Administrator to establish both primary standards to protect the public health and secondary standards to protect the public welfare. §§ 108 and 109, 42 U.S.C. §§ 7408, 7409. Primary responsibility for the measures necessary to achieve these standards, however, remains with the individual states. Each state must develop and submit to the EPA for approval a state implementation plan ("SIP") providing for the implementation, maintenance and enforcement of these standards. § 110(a)(1), 42 U.S.C. § 7410(a)(1).
To be enforceable, the SIP must be approved by the Administrator, who must grant approval if the proposed SIP satisfies the criteria set out in section 110(a)(2)(A)-(K) of the Act. 42 U.S.C. § 7410(a)(2)(A)-(K); Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 257 (1976). If the SIP does not meet statutory criteria, the Administrator may approve parts of the proposed SIP or may promulgate substitutes for the defective measures. § 110(c)(1), 42 U.S.C. § 7410(c)(1). The EPA is empowered to enforce the SIP, but primary enforcement responsibility remains with the state. § 113(a), (b), 42 U.S.C. § 7413(a), (b). A state may also voluntarily submit revisions to its SIP, and these must also be reveiwed and approved by the Administrator on the basis of compliance with the same criteria which the original SIP must meet. § 110(a)(3)(A), 42 U.S.C. § 7410(a)(3)(A).
Statutory deadlines for compliance with the primary standard for particulate emissions require compliance within three years of approval of the SIP, but not later than December 31, 1982, or, in particular circumstances not relevant here, December 31, 1987. §§ 172 and 173, 42 U.S.C. §§ 7502, 7503. Before 1977, EPA and the states adopted the practice of issuing "enforcement orders" which often extended the deadline for a source's compliance with a SIP. Congress disapproved of this practice and so adopted section 113(d), 42 U.S.C. § 7413(d).
This section limits the extension of compliance dealines and requires that, when a state issues a DCO, the DCO can only extend the deadline by which a source must comply, and it must require compliance with the aplicable underlying SIP. § 113(d)(1)(D), 42 U.S.C. § 7413(d)(1)(D). The DCO is also subject to EPA veto, and, in the case of a major stationary source like the Bethlehem plant, the DCO may not take effect until the Administrator determines that it has been issued in accordance with the Act's requirements. That determination is to be made within ninety days of receipt of notice of the DCO's issuance. § 113(d)(2), 42 U.S.C. § 7413(d)(2).
In January 1972, the State of Indiana submitted a SIP which the Administrator approved in May 1972. The SIP included two regulations at issue here, 1972 APC-3 and 1972 APC-5 (both originally promulgated in 1968). The former regulation established a limitation on the opacity of smoke emitted from combustion sources, while the latter set specific numerical limits for particulate matter emissions from "process" sources. It is unclear whether the Bethlehem coke batteries were covered by these regulations. These two regulations together represented a unified approach to controlling particulate emissions, and 1972 APC-3 provided a practical means of enforcing 1972 APC-5.*fn2
In 1974, Indiana proposed a voluntary revision of its SIP. This proposed revision referred to "any" equipment, instead of process sources, thereby clearly including the Bethlehem coke batteries within the ambit of the SIP provisions. This revision (to be referred to as the "Indiana version of 1974 APC-3") also included "other visible emissions" but at the same time, granted a cumulative fifteen-minute exemption in each 24-hour period. In October 1975, the Administrator published the 1975 Order concerning the proposed revisions including the following statement:
New APC-3, the visible emissions regulation, varies from the approved regulation in several respects, the most significant of which is the introduction of a 15-minute exemption period in each 24-hour period. The power companies submitted comments to the effect that such an exemption is necessary for them when starting fires or cleaning units. Since sections 2(a) and 2(b) of APC-3 already provide an exemption to visible emission requirements for fuel-burning sources in such circumstances, this comment appears to be superfluous. . . . [C]ertain intermittent sources, such as coke batteries and roof monitors, may cause gross visible emissions and remain within the exempted time limits. For such sources at least, APC-3 would be ineffective an impractical as a surveillance technique if indeed it could be deemed available. . . . Accordingly, APC-3 must be disapproved to the extent that the 15-minute exemption provision in section 1 fails to meet the requirements of §§ 51.13(e)(1) and 51.19(c).
40 Fed. Reg. 50032-33 (October 28, 1975), 40 C.F.R. § 52.776(c) (1981).
EPA claims that this order constituted a partial approval of 1974 APC-3 and that the only valid, enforceable regulation extends to all relevant operations, including Bethlehem's coke batteries, but does not include the fifteen-minute exemption. Bethlehem and the Indiana Board have contended that the EPA's purported partial disapproval was ineffective and its attempt served instead to invalidate the entire proposed revision leaving 1972 APC-3 in effect (i.e., with the coke batteries exempted from regulation).*fn3
On November 15, 1978, the Indiana Board issued a DCO to Bethlehem delaying Bethlehem's required compliance with APC-3 and APC-5 until July 1, 1979.*fn4 The precise date on which the Indiana Board notified the EPA of the issuance of the DCO is in dispute, but EPA admits that it received notice by December 26, 1978. Although required to issue an approval or disapproval within ninety days of receipt of notice, the Administrator did not release a final disapproval until September 17, 1979. 44 Fed. Reg. 53746-48. This original disapproval was based upon six premises, which were challenged in Bethlehem I, 638 F.2d at 999, 1004-08. The Bethlehem I decision concluded that the record presenting the reasons for the EPA's decision was inadequate to allow the court to review the EPA's action effectively. The only ground relied on by EPA which remains of interest here is that the DCO referred to the incorrect version of APC-3. The court in Bethlehem I stated:
Without any input from the state Board, we are totally uninformed as to which APC-3 the state intended to apply to Bethlehem, or whether the APC-3 applied incorporated the 15-minute exemption. It would seem the state intended to apply the APC-3 the Administrator wishes enforced, yet he has boldly concluded otherwise. Without some support in the record, we cannot accept this as an adequate basis for the Administrator's decision.
Id. at 1008. The issue of whether EPA had validly approved parts of the proposed 1974 APC-3 was also not decided in Bethlehem I. Instead, the court remanded the case to the EPA for reconsideration of its disapproval of the DCO and for supplementation of the record so that this court could properly review the EPA order.
On October 1, 1982, the EPA published an order once again disapproving the DCO. 47 Fed. Reg. 43377-79. In this 1982 Order the EPA relied on only one fact for its disapproval -- that the proposed DCO required compliance with the Indiana version of 1974 APC-3, rather than with the EPA-approved version, in violation of section 113(d)(1)(D) of the Clean Air Act, 42 U.S.C. § ...