Riverside Cement Company v. Lee M. Thomas, Administrator, United States Environmental Protection Agency

843 F.2d 1246 27 ERC 1506 , 56 USLW 2631 , 18 Envtl. L. Rep. 20,860 RIVERSIDE CEMENT COMPANY, et al., Petitioners, v. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, Respondents. Nos. 86-7126, 86-7132. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 12, 1988. Decided April 8, 1988. As Amended June 21, 1988. Charlotte Uram, Landels, Ripley & Diamond, San Francisco, Cal., and James E. Good, Gresham, Varner, Savage, Nolan & Tilden, San Bernardino, Cal., for petitioners. David W. Zugschwerdt, Dept. of Justice, Washington, D.C., for respondents. Appeal from a Decision of the Environmental Protection Agency. Before NOONAN and THOMPSON, Circuit Judges, and TEVRIZIAN, * District Judge. NOONAN, Circuit Judge: 1 At the heart of this case is a federal agency's acceptance of the bureaucratic equivalent of an illusory contract. What happened was this: The South Coast Air Quality Management District on January 8, 1982 adopted a rule regulating the permissible emission of nitrogen oxide from cement kilns. Rule 1112 stated in subsection (b)(1) that the discharge from a kiln could be "no more than 3.1 lbs. of nitrogen oxides per ton of…

dissenting:

I respectfully dissent.

Pursuant to the Clean Air Act, 42 U.S.C. § 7401 et seq., EPA promulgates National Ambiant Air Quality Standards (NAAQSs) and the states must devise plans to implement and enforce these standards (State Implementation Plans or SIPs). Following notice, hearings, and adoption of the SIP, or SIP revision, the state submits the SIP or SIP revision to EPA for approval. 42 U.S.C. § 7410 (a)(2). If the SIP satisfies the statutory criteria, EPA must approve it “or any portion thereof”; otherwise, EPA must promulgate a substitute plan that complies with the law. 42 U.S.C. § 7410 (c).

In 1977 the Clean Air Act was amended to require EPA to designate those areas not meeting the NAAQSs as “nonattainment areas.” The states involved were required to revise their SIPs for such areas to adopt more stringent air pollution controls. 42 U.S.C. § 7502 . In 1978, the South Coast Air Basin (Riverside, San Ber-nardino, Orange and Los Angeles Counties) was designated a nonattainment area for nitrogen oxide (NOx). 40 C.F.R. § 81.305 (1987). As a result, the California Air Resources Board (CARB) and the South Coast Air Quality Management District (SCAQMD) began in 1980…

At the heart of this case is a federal agency’s acceptance of the bureaucratic equivalent of an illusory contract. What happened was this: The South Coast Air Quality Management District on January 8, 1982 adopted a rule regulating the permissible emission of nitrogen oxide from cement kilns. Rule 1112 stated in subsection (b)(1) that the discharge from a kiln could be “no more than 3.1 lbs. of nitrogen oxides per ton of clinker produced”; the rule went on to say in section (d) that prior to the Rule’s effective date a hearing was to be held to review this limit and that if it was determined that the emission limit was “not supported by the evidence presented at the public hearing” then the emission limit should “be modified to the extent supported by the evidence.”

The California Air Resources Board submitted Rule 1112 to the Environmental Protection Agency (EPA) as a revision of the State of California’s plan for achieving what are called “national ambient air quality standards,” that is, the standards set by EPA for outdoor air breathed by the public. On March 23, 1983 EPA issued a notice of proposed rulemaking apropos approval of this rule pursuant to its authority under the…