GEE, Circuit Judge:
In this consolidated appeal,
UNION'S ATTEMPT TO INTERVENE
On May 31, 1972, in accordance with the Clean Air Act, the EPA approved the Alabama implementation plan, Alabama Air Pollution Control Regulations, Chapter 4.4.1, which defined certain air quality standards for the State of Alabama in general and for Birmingham, Alabama, in particular. Under the plan sources of pollution were allowed three years to reduce emissions to prescribed standards. United States Steel originally operated twenty-one open-hearth furnaces—twelve at its Fairfield plant and nine at its nearby Ensley plant— incapable of meeting the plan's standards without the addition of expensive anti-pollution equipment. The corporation sought to comply with the air quality standards by shutting down the open hearth furnaces and replacing them with modern Q-BOP furnaces. By May 31, 1975—the compliance date—two Q-BOP furnaces had replaced the twelve Fairfield open hearth furnaces, but five open hearth furnaces still operated at Ensley in violation of the state plan.
Three months earlier, in February of 1975, the EPA had warned United States Steel that the emissions from the Ensley furnaces violated the implementation plan and that they must be brought into compliance by May 31, 1975. Conceding that it could not meet the deadline in time because of delays in construction of a third Q-BOP plant, U.S. Steel entered into negotiations with EPA in April, and in May reached an agreement. On June 9, 1975, nine days after the deadline had expired, the EPA filed an enforcement action under § 113 of the Act, 42 U.S.C. § 1857c-8 (1970).
Two other features of the consent decree are material. In exchange for the 13-month extension of compliance with the state clean air standards, U.S. Steel surrendered its right to seek additional judicial extension of the June 30, 1976, deadline and further waived any right to judicial review of any future determination by the EPA pursuant to the decree. It retained the right to ask EPA for modification or extension of the June 30, 1976 deadline, but any modification or extension was to be in the sole discretion of EPA. U.S. Steel complied
The Union sought intervention as a matter of right under Fed.R.Civ.P. 24(a)(2).
The question of timeliness lies within the district court's discretion, which may be reversed only upon a showing of abuse: timeliness is not limited to chronological considerations, it "is to be determined from all the circumstances." NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). Here the EPA filed its enforcement suit on June 9, 1975, the district court entered its order on June 23, 1975, but the Union did not seek to intervene until June 17, 1976, after the EPA had denied U.S. Steel's request for another extension. The district court did not abuse its discretion in finding the Union's attempt at intervention untimely: its June 23, 1975, order was a final judgment, and we have noted that intervention attempts after final judgments are "ordinarily looked upon with a jaundiced eye." McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1072 (5th Cir. 1970). Interventions after judgment have a strong tendency to prejudice existing parties to the litigation or to interfere substantially with the orderly process of the court. Id. In this case the EPA had negotiated a settlement dispensing U.S. Steel from compliance with the Alabama implementation plan for 13 months in return for U.S. Steel's agreement to not seek judicial review of the consent decree, forestalling any court challenge by U.S. Steel that might have delayed compliance. The Union was aware of the proposed consent decree and had been given an opportunity to comment upon it.
The Union argues that its intervention was timely because it relied on the EPA's agreement, in the consent decree, to entertain information and requests from U.S. Steel concerning modification or extension of the consent decree and because it mistakenly believed that EPA would again extend the compliance deadline. Only when the EPA denied the extension did the Union realize, it avers, that extension was not certain. We agree with the trial court that
Nor has the Union shown that its interests were not adequately protected by U.S. Steel. Representation is adequate "if no collusion is shown between the representative and an opposing party, if the representative does not have or represent an interest adverse to the proposed intervenor and if the representative does not fail in the fulfillment of his duty." Martin v. Kalvar Corp., 411 F.2d 552, 553 (5th Cir. 1969) (per curiam). Implying no collusion between U.S. Steel and the EPA, the Union yet asserts that it has different and stronger interests from those of U.S. Steel, suggesting that U.S. Steel's interest in keeping the furnaces open could have flagged if it became profitable to close them. Noting that the Union had made no complaint about U.S. Steel's representation, the district court found that the interests of the Union and U.S. Steel were identical. We cannot fault the district court's judgment, especially in light of the Union's forbearance from intervention in the argument between the EPA and U.S. Steel until after the twelfth hour. Such inaction is mute testimony to the Union's reliance upon U.S. Steel to protect its interests.
On these considerations,
GOVERNOR WALLACE'S ATTEMPT TO POSTPONE IMPLEMENTATION
The Governor of Alabama and the Union petition this court for direct review of the EPA's denial of the Governor's request to postpone implementation. See 42 U.S.C. § 1857c-5(f)(2)(B) (1970). Under Section 110(f)(2)(B) we have limited jurisdiction to review an Administrator's determination whether to grant a governor's request for postponement. The postponement provision delineates a narrow set of circumstances in which a governor may request postponement of application of an implementation plan to a source of pollution. The Administrator determined that the Governor's request failed to meet these circumstances in that the Governor filed an untimely request for postponement. We affirm the Administrator's determination.
Section 110(f)(1) of the Clean Air Act, 42 U.S.C. § 1857c-5(f)(1) (1970),
In this case U.S. Steel was required to comply with the state implementation plan on May 31, 1975. The Governor made no request for postponement of any requirement of this plan until June 24, 1976, six days before the plants were to close.
The statute cannot be so read to support the petitioners' position: on May 31, 1975, U.S. Steel should have complied with the state implementation plan. By its terms, § 110(f)(1) of the Clean Air Act requires the Governor to seek postponement "[P]rior to the date on which any stationary source . . . is required to comply with any requirement of an applicable implementation plan . . . ." 42 U.S.C. § 1857c-5(f)(1) (1970). The Governor should have requested postponement prior to that date, but instead he acted on June 24, 1976, thirteen months after the proper time. Because the State of Alabama did not revise its plan pursuant to § 110(a)(3) of the Clean Air Act, 42 U.S.C. § 1857c-5(a)(3) (1970), and because the Governor of Alabama did not seek postponement, only the EPA's forbearance on its enforcement action under § 113(b), 42 U.S.C. § 1857c-8(b) (1970), allowed U.S. Steel to continue operating the furnaces. The EPA wants authority to absolve U.S. Steel from the requirements of the Alabama implementation plan. It can only delay enforcement.
The logical party to this appeal, U.S. Steel, is not before us, having swapped its right to judicial review for thirteen months of open-hearth furnace operation. U.S. Steel's sacrifice of judicial review proved prophetic in that we find no other grounds for appellate jurisdiction in the Union's case. This is not a situation in which a statute fails to provide for judicial review when judicial review of agency action is clearly proper, see Ortego v. Weinberger, 516 F.2d 1005 (5th Cir. 1975). Instead, the one party who could have invoked judicial review waived that right and in the context of this case the Union has no colorable claim. Similarly, the Governor's belated action in seeking postponement came too late, and the EPA properly determined the petition's untimeliness. We dismiss the Union's appeal in United States v. United States Steel and affirm the EPA's action on the petitions of the Governor and the Union.
42 U.S.C. § 1857c-5(f)(1) (1970).
42 U.S.C. § 1857c-8 (1970).
42 U.S.C. § 1857c-5(f)(1) (1970).