ELR Citation: ELR 20268
No(s). s. 84-1168 et al (7th Cir. Jan 3, 1986)

The court rules that the Clean Air Act gives the district courts exclusive jurisdiction over claims that the Environmental Protection Agency (EPA) should have promulgated more stringent federal state implementation plan (SIP) provisions, instead of partially disapproving inadequate SIP revisions. Steel company and environmental group petitioners challenge two 1983 EPA orders, one disapproving a 1980 Indiana SIP revision (1980 APC-3) and suspending consideration of a 1979 revision (1979 APC-9), both of which governed the opacity of coke oven emissions; the other disapproving in part a 1981 SIP revision (1981 APC-9), which dictated emission control practices for coke oven doors and the pushing and quenching phases of the coke production cycle. The state's actions resulted from EPA's partial approval of a 1974 opacity rule, which made the rule more stringent than the state intended by deleting a 15-minute-per-day exception, and EPA's announcement that it would probably disapprove the 1979 APC-9, which would have removed all opacity limits on coke oven emissions.

The court first rules that the challenge to EPA's alleged "pocket veto" of the 1979 APC-9 is not moot even though EPA decided to reconsider 1980 APC-3 after the 7th Circuit overturned EPA's partial approval of the 1974 APC-3. The 1979 APC-9 would be more favorable to the steel industry petitioners than either the original 1972 rule now in effect by default or the 1980 rule disapproved by EPA. The court also notes that EPA's inaction on the 1979 rule clearly is final action subject to review, but declines to exercise its equitable powers to order EPA to act formally on it. Given EPA's legitimate concern over and actions concerning coke over emissions, and its past actions on the issue, there is virtually no chance that the agency would approve 1979 APC-9. Requiring EPA to go through the exercise would be a waste of limited resources.

The court upholds EPA's partial disapproval of the 1981 APC-9 requirements for coke oven doors and the pushing and quenching phases of the coke production cycle. First, the court rules that EPA properly concluded that the APC-9 provisions were not consistent with the requirement in the 1977 Clean Air Act amendments that sources in nonattainment areas be controlled with reasonably available control technology (RACT) in the interim before the 1982 attainment deadline. Industry petitioners' argument that the RACT requirement expired when the 1982 deadline passed without achievement of the air quality standards is flawed. Since the northern Indiana area in question is not in attainment, the requirements stay in force.

The court next upholds the EPA action on rules for coke oven doors. The state rule allowed no more than 10 percent of all the doors in a coke oven battery, plus four doors, to be leaking at any time during the operation of the battery even if fewer than 100 percent of the ovens were fired up. EPA disapproved the rule, responding that the 10-percent-plus-four limitation should apply only to those ovens in operation. The court first rules that the challenge is neither moot nor unripe despite the certainty of further state revision of the rule, because EPA has effectively foreclosed an option favorable to petitioners. The court also rules that EPA's action was final for purposes of court of appeals review under §307 of the Act. Although there is some doubt whether an order disapproving a proposed SIP revision is a final action, in this case EPA partially approved and partially disapproved the revision. Such actions are reviewable, since the alternative would be repetitive partial review. The court leaves open the question of whether EPA disapproval of all but a small part of a SIP revision would be reviewable. On the merits, the court holds that EPA's insistence on at least a 10-percent-plus-four-operating-doors approach was consistent with the Act and reasonable. The record indicates that compliance with this requirement is feasible through sequential firing of the coke batteries. By applying the percentage to all doors in a battery, the state's approach would allow companies utilizing only part of their coking capacity to apply less stringent controls than are demonstrably available, in contravention of the principle of RACT. EPA also rejected the state's standard for controlling emissions that occur when the coke produced in the ovens is pushed into railroad cars. The court rules that EPA's rejection of a rule requiring installation of controls designed to eliminate 90 percent of the pushing emissions in favor of an opacity standard is reasonable. Since the pushing process cannot practically be enclosed, it is impossible to determine the amount of total emissions or the percent removed by controls, while an opacity standard directly addresses the amount of pollution entering the atmosphere.

The court also upholds EPA's partial disapproval of the state standard for controlling emissions arising when the red-hot coke is quenched with cooling water. The state would require a particulate-collecting baffle above the quench towers and limits on the concentration of dissolved solids in the quench water, one source of particulate emissions. EPA approved the concept, but insisted that the state test the water with approved tests at locations closer to the quench operations than proposed. The court holds that these considerations were reasonable.

Having refjected all of industry petitioners' challenges, the court takes up those of the environmental group, which claimed that EPA should have approved those portions of the SIP it found acceptable as interim measures only and within six months promulgated a more stringent federal SIP. The court rules that the group has standing, but dismisses its petition for lack of jurisdiction. Characterizing the group's action as one to compel EPA to take actions beyond its partial disapproval of the Indiana SIP revisions, the court holds that exclusive jurisdiction over the claim resides in the district courts under §304. Citizen petitioner did not challenge the validity of EPA's orders, the court finds, but EPA's failure to go further. The decision to forego review is further warranted because the administrative record does not address the feasibility or content of the federal SIP that petitioner seeks and a court of appeals is ill-suited to administer the remedy petitioner demands. A district court is better equipped to develop a record and to police a requirement that EPA take regulatory action under a timetable. Petitioner cites an unpublished decision of the 6th Circuit that appears to provide the kind of relief sought, but the opinion does not explain enough to determine whether it is analogous to the case at bar. The court distinguishes cases cited by petitioner for the proposition that a court of appeals hearing a challenge to a partial approval of a SIP may also consider the propriety of EPA's failure to promulgate a federal SIP.

A dissent would hear the environmental group's claim and order EPA to promulgate a federal SIP. Even if the environmental group's claim is only that EPA did not go far enough, the court of appeals has exclusive jurisdiction under §307(b)(1) to review EPA's actions concerning any SIP. The judge castigates the majority for failing to consider the extent to which EPA's action is consistent with the express deadlines in the Clean Air Act for cleaning up nonattainment areas and would require EPA to promulgate a federal SIP on determining that the state version will not produce timely attainment.

Counsel for Petitioners
Robert E. Yuhnke
Citizens for a Better Environment
33 E. Congress St., Chicago IL 60605
(312) 939-1530

Bryan G. Tabler
Barnes & Thornbury
1313 Merchants Bk. Bldg., Indianapolis IN 46204
(317) 638-1313

Lawrence A. McHugh
Rooks, Pitts & Poust
Xerox Center, 55 W. Monroe St., Chicago IL 60603
(312) 372-5600

Counsel for Respondents
Lawrence R. Liebesman, Scott Slaughter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2281

William F. Pederson, Peter H. Wyckoff, Kendra E. Sagoff
Office of the General Counsel, U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7606

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