ON PETITIONS FOR REVIEW OF FINAL ACTION OF THE ENVIRONMENTAL PROTECTION AGENCY ON JULY 17, 1979
Before Adams, Hunter and Higginbotham, Circuit Judges.
In these consolidated cases we are asked, pursuant to § 307(b) of the Clean Air Act, 42 U.S.C. § 7607(b), to review an action by the Environmental Protection Agency (EPA) approving amendments to Pennsylvania's air pollution control State Implementation Plan (SIP) dealing with emission standards for coke oven batteries. Petitioners contend that EPA applied an incorrect substantive standard in evaluating the SIP revision, that it improperly qualified its approval, and that it based its action on impermissible considerations of technological feasibility. Because we conclude that EPA acted in accordance with the Clean Air Act, we dismiss the petitions for review.
In 1977, the Pennsylvania Department of Environmental Resources (DER) adopted, regulations governing the level of emissions from coke oven batteries, in order to control more effectively this potentially carcinogenic air contaminant.*fn1 As required by the Clean Air Act, DER submitted these new regulations to EPA, requesting that they be approved as a revision to its SIP under § 110(a) (3) of the Act, 42 U.S.C. § 7410(a)(3). DER included in its submission an air quality impact statement, which demonstrated that "the new regulations are more stringent than the former requirements" for coke oven emissions.
Following the procedures mandated by the Administrative Procedure Act (APA) and the Clean Air Act, the EPA published a notice of proposed rulemaking, inviting public comment on the Pennsylvania SIP revision, 43 Fed.Reg. 56910 (Dec. 5, 1978). EPA specifically urged comments on the following two questions involving the interaction of federal requirements with certain features of the Pennsylvania regulations:
1. Would a deferred compliance order extending a particular source's deadline for meeting the emissions limitations constitute a "variance" from the SIP? If so, would it have to be submitted for EPA approval as a SIP revision under § 110(a)(3), before the deferral schedule could take effect as a matter of federal law?
2. If DER determines that emissions from a particular control device in excess of the limitations are of "minor significance," and thus permissible, must this "minor significance determination" be submitted to EPA as a SIP revision before taking effect as a matter of federal law?
Bethlehem Steel Corporation, U. S. Steel Corporation, and the Commonwealth of Pennsylvania each submitted comments, addressing these two issues as well as other concerns. Essentially, the comments suggested that deferral orders and minor significance determinations were not "variances" from applicable SIP standards, but were actually findings of effective compliance. U. S. Steel also offered extensive technical comments to demonstrate that the regulations were neither necessary nor feasible.
EPA adopted a Final Rule approving the DER regulations as a SIP revision on July 17, 1979, 44 Fed.Reg. 41429. The published notice contained brief responses to the comments, and it was accompanied by a rationale document responding in full to the public comments and explaining EPA's decision in greater detail. In the Federal Register notice, EPA stated that the "amendments ... are approved subject to the following conditions, interpretations, and comments": (1) that minor significance determinations and deferred compliance orders "shall not take effect as a matter of federal law unless submitted to and approved by EPA as a SIP revision;" and (2) although EPA was precluded from and did not consider necessity and achievability in reaching its decision, it felt obliged to respond to U. S. Steel's comments by noting that the regulations were both necessary and feasible. Finally, EPA supported its approval by noting that the regulations would "not interfere with the attainment and maintenance of the national ambient air quality standards," as demonstrated by Pennsylvania's showing that they were equally as stringent as the former limitations.
It is these EPA statements that provoked this petition, and they are the predicate of the substantive challenges raised by the petitioners.
II. Substantive Standard Applied by EPA
We note at the outset that the applicable standard for reviewing this final agency action is that of § 10(e) of the APA, 5 U.S.C. § 706. A court of appeals should set aside EPA's action only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in ...