Bethlehem Steel Corp. v. United States Environmental Protection Agency (638 F.2d 994, 1980)

PELL, Circuit Judge.

Bethlehem Steel Corporation (Bethlehem) has petitioned this court to review an action taken by the United States Environmental Protection Agency (EPA or Agency) pursuant to § 113(d)(2) of the Clean Air Act, 42 U.S.C. § 7413(d)(2) (Supp.1977). The EPA’s action disapproved the issuance of a Delayed Compliance Order (DCO) to Bethlehem by the Indiana Air Pollution Control Board (Board) under § 113(d)(1). The DCO allowed Bethlehem an extended period of time greater than it would otherwise have been allowed to comply with the Indiana State Implementation Plan (SIP). EPA approval of the DCO was required by § 113(d)(2). The EPA Administrator finally disapproved the DCO for a variety of reasons on September 17, 1979, and Bethlehem has appealed that disapproval pursuant to § 307(b), 42 U.S.C. § 7607(b).

I

FACTS

Although some of the characterizations of the factual occurrences that eventually led to this petition for review are the subjects of substantial disagreement between the parties, the occurrences themselves are not in significant dispute.

Bethlehem owns and operates a steel mill in Burns Harbor, Porter County, Indiana. The mill contains two batteries of coke ovens, each battery containing 84 ovens. Coke oven operations include “charging” (dumping coal from a lorry car into the oven), “coking” (destructing distillation of the coal turning it into coke which is accomplished by heating the inside of the oven in an oxygen-free atmosphere to avoid combustion of the coal), and “pushing” (ramming the hot coke out of the oven into a quench car which conveys the coke to a quench tower for dousing with water). None of these operations normally results in combustion of the coal or coke; nevertheless, coke battery operations do result in the emission of particulate matter into the atmosphere.

The Clean Air Act empowers the federal Government to establish nationwide primary and secondary ambient air quality standards designed to protect the public health and welfare. Train v. Natural Resources Defense Council, 421 U.S. 60, 65, 95 S.Ct. 1470, 1475, 43 L.Ed.2d 731 (1974). Under the Act as amended in 1970, these standards are to be set by the federal EPA but primary responsibility for establishing the necessary measures for achieving these standards is given to the states. 42 U.S.C. §§ 7401(a)(3), 7410(a). Train v. Natural Resources Defense Council, supra at 64, 95 S.Ct. at 1474. The Act requires the state to submit its SIP to the EPA Administrator, for his approval, setting forth the means of “implementation, maintenance, and enforcement” of the standards. 42 U.S.C. § 7410(a). To be enforceable, the SIP must be found by the Administrator to meet the statutory criteria specified in §§ 110(a)(2)(A)-