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RIVERSIDE CEMENT CO. v. THOMAS

Nos. 86-7126, 86-7132.

843 F.2d 1246 (1988)

RIVERSIDE CEMENT COMPANY, et al., Petitioners, v. Lee M. THOMAS, Administrator, UNITED STATES Environmental Protection Agency, Respondents.

United States Court of Appeals, Ninth Circuit.

Decided April 8, 1988.

As Amended June 21, 1988.

Attorney(s) appearing for the Case

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.

Before NOONAN and THOMPSON, Circuit Judges, and TEVRIZIAN, District Judge.

NOONAN, Circuit Judge:

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...

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