Petition for Writ of Certiorari — National-Southwire Aluminum Co. v. United States Environmental Protection Agency

: 7 Supreme Court, U.S,

~2 75 FILED

JUN 23 1988

JOSEPH F. SPANIOL, UR

No. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NATIONAL-SOUTHWIRE ALUMINUM COMPANY,

Petitioner,

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY,

LEE A. THOMAS, Administrator, and

JACK E. RAVEN, Regional! Administrator,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Chester R. Babst Ill, Esquire

Babst, Calland, Clements & Zomnir,P C

Two Gateway Center

Pittsburgh, Pennsylvania 15222

(412) 394-5400

Counsel of Record for Petitioner

National-Southwire Aluminum Company

QUESTIONS PRESENTED

1. Did the Court of Appeals

misinterpret the language and legislative intent of

Section 111 of the Clean Air Act in upholding a

determination of the Environmental Protection

Agency (“EPA”) which would prevent States from

correcting overly strict emission standards and

discourage voluntary pollution control?

2. Did the Court of Appeals usurp the

responsibility of the EPA Administrator in making a

determination of environmental impact?

TABLE OF CONTENTS

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Petition for Writ of Certiorari ................ 1

Eg 1

Statement of Jurisdiction .................... 2

Statute and RegulationsInvolved ............ 3

ee 4

Reasons for Granting the Writ .............. 10

ee Ce ee ee ee 11

|. Important questions are raised by the Court

of Appeals’ decision which have not been

but should be addressed by thisCourt ... 11

A. The Court of Appeals misinterpreted the

language and the legislative intent of

Section 111 of the Clean Air Act ...... 11

B. The Court of Appeals decision would

prevent a State from correcting overly

strict non-health-related emissions

a ede Sry wads « a0 12

C. The Court of Appeals decision would

discourage voluntary pollution control 13

ll. The Court of Appeals usurped the respon -

sibility of the EPA Administrator to make a

determination of the environmental impact

of the proposed correction of Petitioner's

emission control system ................ 15

oe ie en a 17

(12)

Appendices (bound separately)

APPENDIX A Page

Opinion of the Court of Appeals filed

I een tee aa oe thee

Formal Determination of Environmental

Protection Agency dated September 22,

RRR ice SIS? Fi * a eh ee are 19a

Judgment of the Court of Appeals

entered April6,1988 .................... 26a

Order of the Court of Appeals denying

Petitioner's Petition for Rehearing

and as. ree for Rehearing En Banc

entered March 25,1968 .................. 27a

APPENDIX B

CON ee PU EIN RED x oc kc ec tne cn neces 28a

40 C.F.R. §§60.5, 60.14, 60.22, 60.24 and

Ee eat, Caren Pe oer rer re 38a

APPENDIX C

EPA Region IV, “Technical Support

Document for the Revision to Kentucky's

§111(d) Plan for Controlling Fluoride

Emissions from Existing Primary Aluminum

Reduction Plants” (June 24, 1986) ......... 46a

TABLE OF AUTHORITIES

CASES PAGE

National-Southwire Aluminum Company v.

United States Protection Agency, 838 F.2d 835

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(1v)

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

Petitioner National-Southwire Aluminum

Company1, appellant below, respectfully prays that

a writ of certiorari be issued to review the judgment

of the United States Court of Appeals for the Sixth

Circuit entered in this proceeding on February 1,

1988.

OPINION BELOW

The opinion of the United States Court of

Appeals for the Sixth Circuit, filed February 1, 1988,

1 Pursuant to Supreme Court rule 21 1, the caption to

this case sets forth the names of all the parties hereto and

therefore will not be repeated herein. Pursuant to Supreme

Court Rule 28.1, the following is a list of all parents,

subsidiaries, and affiliates of National-Southwire Aluminum

Company:

National Aluminum Corporation, a wholly owned

subsidiary of National Intergroup, Inc., of Pittsburgh,

Pennsylvania, owns 54.5% of National-Southwire

Aluminum Company; Southwire Company, of

Carrolton, Georgia, owns the remaining 45 5% of

National-Southwire Aluminum Company

upholding a formal determination by the United

States Environmental Protection Agency (“EPA”)

that a change in the operation of an emission

control system at Petitioner's aluminum reduction

plant would constitute a “modification” of a

“stationary source” within the meaning of the Clean

Air Act, is set forth at 838 F.2d 835 (6th Cir. 1988) and

in Appendix A hereto at page 1a.

EPA’s formal determination, issued on

September 22, 1986, is set forth in Appendix A

hereto at page 19a.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals for

which National-Southwire Aluminum Company

seeks review, Appendix A (26a), was dated and

entered February 1, 1988. The order of the Court of

Appeals denying Petitioner's Petition for Rehearing

and Suggestion for Rehearing En Banc was filed on

March 25, 1988, Appendix A (27a), and dated and

entered on April 6, 1988. Jurisdiction to review the

judgment of the Court of Appeals is conferred on

the Supreme Court by the Act of Congress of June

25, 1948, c.646 (62 Stat. 869), section 1254(1) (28

U.S.C. §1254(1)).

STATUTE AND REGULATIONS INVOLVED

The statute involved in this case is Section 111

of the Clean Air Act, 42 U.S.C. §7411, which is set

forth in Appendix B hereto at page 28a. The

regulations involved in this case are codified at 40

C.F.R. §§60.5, 60.14, 60.22, 60.24 and 60.28, which

are set forth in Appendix B at page 38a.

STATEMENT OF THE CASE

Petitioner owns a primary aluminum reduction

plant in Hawesville, Kentucky, the operation of

which results in the emission of gaseous fluoride. At

the time of its construction in 1969, before the

passage of the Clean Air Act, Petitioner voluntarily

equipped the plant with an emission control system

that included wet scrubbers. The scrubbers

represented what at that time was believed to be

the most effective means of controlling gaseous

fluoride emissions and were included as a part of the

control system by Petitioner despite the fact that

there was no statutory or regulatory requirement to

limit gaseous fluoride emissions.

Subsequent to the voluntary control of gaseous

fluoride emissions by Petitioner, the EPA adjudged

these emissions to be “welfare-related” poliutants

which, by definition, “do not pose a threat to human

health.” Section 111(d) of the Clean Air Act

entrusted regulation of existing sources of such

pollutants to the States, subject to EPA approval.1

Kentucky adopted standards for gaseous

fluoride emissions in 1981, and EPA approved

Kentucky's standards in 1982. (3a). These new state

standards simply required the same level of emission

control that Petitioner had already been achieving

by the use of its emission control system with wet

scrubbers since 1969.

In 1982, during a routine maintenance-related

shutdown of the wet scrubbers, Petitioner's

monitors detected no appreciable change in

ambient fluoride levels. (4a). Moreover, between

1983 and 1986, Petitioner operated its emission

control system without utilization of the wet

1 Section 111(d) provides in pertinent part that:

each State shall submit to the Administrator a

plan which (A) establishes standards of

nerformance for any existing source for any air

pollutant (i) for which air quality criteria have

not been issued... but (ii) to which a standard of

performance under this section would apply if

such existing source were a new source, and (B)

provides for the implementation and

enforcement of such standards of performance.

42 U.S.C. §7411(d).

scrubbers pursuant to a variance granted by the

Commonwealth of Kentucky. During the

approximate three year period in which the variance

was in effect Petitioner's monitors again detected

no appreciable change in ambient fluoride levels.

Petitioner thereupon sought and obtained from

Kentucky a relaxation of the State's Section 111(d)

fluoride emission standard to permit it to curtail the

increasingly costly operation of its wet scrubbers.2

(4a).

Kentucky submitted a proposed form of its

relaxed gaseous fluoride emission standard to the

EPA's Region IV office on March 22, 1985. (4a). The

proposed regulation included a stipulation that

turning off the wet scrubbers to take advantage of

the relaxed standard would not be considered a

“modification” that would render the plant subject

to new source performance standards under the

provisions of Section 111(b) of the Clean Air Act. (4a-

5a).

2 Section 111(a)(1)(c) of the Clean Air Act requires that,

in establishing standards of performance for welfare-related

pollutants, the States and EPA take into consideration “the

cost of achieving such emission reduction, and any nonair

quality health and environmental impact and energy

requirements.” 42 U.S.C. §7411(a)(1)(c). In the case of the

wet scrubbers, Petitioner incurs annual operating and

maintenance costs in excess of $2,200,000.

On June 24, 1986, Region IV endorsed the

proposed relaxation of the Kentucky standard in a

draft Federal Register notice and technical support

document. Region IV concluded, inter alia, (1) that

an emission control system with wet scrubbers was

“an overly effective means of controlling total

fluoride emissions from the plant” (49a), (2) that

Petitioner's control system without the wet

scrubbers was “an effective means of controlling

fluoride emissions (at a reasonable cost)” (49a), and

(3) that turning off the scrubbers “will not have a

harmful effect on the environment.” (51a).

Region IV went on to assert, however, that if

Petitioner turned off its scrubbers, it would

constitute a “modification” which would subject the

plant to federal new source’ performance

standards,3_ which in turn would require the

3 The Clean Air Act calls for federal performance

standards for all “new sources” of pollution, including “any

stationary source, the construction or modification of which

is commenced after the publication of regulations...

prescribing a standard of performance under this section

which will be applicable to such source.” 42 U.S.C. §7411

(a)(2). Modification is defined as “any physical change in, or

change in the method of operation of a stationary source

which increases the amount of any air pollutant emitted by

such source or which results in the emission of any air

pollutant not previously emitted.” 42 U.S.C. §7411 (a)(4).

installation of a prohibitively expensive new

emission control system. (52a).

On September 22, 1986, responding to a

request filed by Petitioner pursuant to 40 C-F.R.

§60.5, the EPA issued a formal determination

reiterating the assertion of Region IV that the

proposed correction to Petitioner's emission control

system would trigger the imposition of new source

performance standards. (19a).

Petitioner challenged the EPA determination in

a Petition for Review filed in the United States Court

of Appeals for the Sixth Circuit on October 27, 1986.4

Petitioner raised, inter alia, the following arguments

before the Court of Appeals:

1) that the proposed operation of

Petitioner's emission control system

would not constitute a

“modification” of an existing facility

absent a determination by the EPA

Administrator that it would be “less

4 The Court of Appeals had jurisdiction to review EPA’s action pursuant

to 42 U.S.C. §7607 (b).

environmentally beneficial” than the

present system; and

2) that the imposition of new source

performance standards would be

inconsistent with the legislative

intent behind Section 111 of the

Clean Air Act.

On February 1, 1988, the Court of Appeals

denied the Petition for Review, Judge Boggs

dissenting. (1a). The Court of Appeals held that,

because the proposed operation of Petitioner's

emission control system without the wet scrubbers

would result in an increase in gaseous fluoride

emissions, it would necessarily be less

environmentally beneficial. (12a). Moreover, the

Court of Appeals found that the imposition of new

source performance standards would not be

inconsistent with legislative intent, because

Congress intended in Section 111 simply “to

establish existing levels of emissions as a baseline

above which an existing source may not pollute

without becoming subject to NSPS.” (13a).

The Court of Appeals denied Petitioner's

Petition for Rehearing and Suggestion for Rehearing

En Banc on March 25, 1988. (27a).

REASONS FOR GRANTING THE WRIT

The Court of Appeals’ decision upholding the

EPA determination that a State-approved correction

in the operation of an emission control system

would trigger the imposition of federal new source

performance standards will discourage voluntary

pollution control and prevent the States from

correcting overly strict emission standards for

welfare-related pollutants which are inconsistent

with the statutory criteria of Section 111(d) of the

Clean Air Act. This raises important questions

concerning the proper interpretation of Section

111(d) of the Clean Air Act which have not been, but

should be, settled by this Court.

The Court of Appeals’ unwarranted usurpation

of the responsibility of the EPA Administrator to

make a determination of the environmental impact

of the proposed correction of Petitioner's emission

control system represents a substantial departure

from the usual course of judicial proceedings, and

provides a second reason for granting the writ.

10

ARGUMENT

I. Important questions are raised by the Court of

Appeals’ decision which have not been but

should be addressed by this Court.

A. The Court of Appeals misinterpreted the

lanquage and the legislative intent of

Section 111 of the Clean Air Act.

In Section 111 (b) of the Clean Air Act, Congress

provided that strict, technology-based new source

performance standards of emission control would be

applied to all new or newly modified sources of air

pollution. By so doing, Congress intended “to

address pollution problems when those problems

are easiest to fix, at the time of the new

construction.” (15a).

Congress chose not to impose these strict new

source performance standards on existing sources,

for whom the expense of retrofitting state-of-the-

art control equipment may have been a fatal

burden. Rather, in Sections 111(d) and 111(a)(1)(c),

Congress provided for the setting of non-health-

related emission control standards for existing

sources by the States (subject to EPA approval),

taking into consideration the cost of achieving

emission reduction and any nonair quality health

11

and environmental impact and energy

requirements.

The Court of Appeals decision holding that a

correction in the operation of an overly effective

and overly costly emission control system would

trigger new source performance standards and

require the retrofitting of an existing facility with

prohibitively expensive new control devices runs

completely counter to the statutory scheme of

Section 111. Great violence will be done to the

legislative intent of this important provision of the

Clean Air Act if this decision is allowed to stand.

B. The Court of Appeals decision would

prevent a State from correcting overly

strict non-heaith-related emissions

standards.

As noted above, Section 111(d) of the Clean Air

Act provides that, in estabiishing non-health-related

emission standards for existing sources, “states can

decide for themselves what costs they wish to

impose for what level of protection of vegetation

and inanimate objects.” (15a).

Where a State initially establishes a standard it

later determines to be overly strict, federal

regulations provide a mechanism for the State to

12

relax that standard, subject to EPA approval. 40

C.F.R. §60.28. In this case, the Commonwealth of

Kentucky, taking into consideration the substantial

cost of operating Petitioner's scrubbers versus the

negligible environmental benefits they provide,

determined that its existing standard for gaseous

fluoride emissions was overly strict and inconsistent

with the statutory criteria of Section 111(d) of the

Clean Air Act and should be relaxed. The EPA,

taking account of the same factors, proposed to

approve Kentucky's relaxed standard (5a-6a);

however, its determination that the corrected

operation of the scrubbers would trigger new source

performance standards defeats the purpose.

Indeed, by effectively preventing a State from

correcting an overly strict emission standard, the

Court of Appeals decision upholding the EPA

determination effectively defeats the legislative

intent behind Section 111(d) to give the States the

authority to establish and enforce non-health-

related emission standards for existing sources.

C. The Court of Appeals decision would

discourage voluntary pollution

control.

As noted by Judge Boggs in his dissent below,

the problems Petitioner and the Commonwealth of

13

Kentucky face are largely “an accident of timing.”

(15a). Had Petitioner not voluntarily installed state-

of-the-art wet scrubbers in 1969, it might never have

been required to do so, since Kentucky might never

have adopted the overly strict emission standard

which mandated their use.

By preventing Petitioner from correcting the

operation of its emission control system, the Court

of Appeals decision penalizes Petitioner for having

voluntarily installed an overly effective system.

Moreover, by effectively preventing the

Commonwealth of Kentucky from relaxing its

emission standard, the Court of Appeals decision

penalizes Kentucky for having initially established

an overly strict standard.

This kind of “minnow-trap” enforcement, in

the words of Judge Boggs, “creates a national

enforcement strategy completely hostile to any

willing compliance with pollution control

standards.” (16a). Such a result could hardly have

been intended by Congress.

14

a

ll. The Court of Appeals usurped the

responsibility of the EPA Administrator to

make a determination of the environmental

impact of the proposed correction of

Petitioner's emission control system.

Federal regulations provide that the following

shall not constitute a modification of a stationary

source under the Clean Air Act:

The addition or use of any system or

device whose primary function is the

reduction of air pollutants, except when

an emission control system is removed or

is replaced by a system which the

Administrator determines to be less

environmentally beneficial.

40 C.F.R. §60.14(e)(5) (emphasis added).

The EPA Administrator has not made a

determination that the corrected operation of

Petitioner's emission control system would result ina

system which was “less environmentally beneficial”.

indeed, he would have been hard pressed to do so in

light of monitoring data which showed no increase

in ambient fluoride levels from the corrected

operation and in light of his own agency's findings

15

that the correction would result in no harmful effect

to the environment.

The Administrator's failure to make a

determination of environmental impact should have

been fatal to the EPA determination that the

corrected operation of Petitioner's emission control

system would constitute a modification of a

stationary source. The Court of Appeals’ conclusion

that, simply because increased emissions would

result, the corrected system would necessarily be

“less environmentally beneficial” constitutes an

unwarranted and indefensible usurpation of the

EPA Administrator's responsibility to make that

determination, if he can.

16

CONCLUSION

The Court of Appeals decision misinterprets the

language and legisiative intent of Section 111 of the

Clean Air Act to reach a result which prevents a State

from correcting an overly strict emission standard

and serves to discourage voluntary pollution control.

A writ of certiorari is warranted by the public

importance of these concerns and, further, by the

Court of Appeals’ unwarranted usurpation of the

EPA Administrator's unfulfilled responsibility to

make a determination of environmental impact.

Respecfully submitted,

Chester R. Babst Ill

Babst, Calland, Clements & Zomnir, P.C.

Two Gateway Center

Pittsburgh, Pennsylvania 15222

(412) 394-5400

Counsel of Record for

National-Southwire Aluminum Company

June 23, 1988

17

CERTIFICATE OF SERVICE

| hereby certify that | served three true

and correct copies of the foregoing Petition for Writ

of Certiorari to be mailed first-class, postage

prepaid, this 22nd day of June, 1988, upon:

Solicitor General

Department of Justice

Washington, D.C. 20530

Brian Faller, Attorney

Environmental Defense Section

Land and Natural Resources Division

U.S. Department of Justice

Post Office Box 23986

Washington, D.C. 20026-3986

Earl C. Salo, Esquire

Office of General Counsel

U.S. Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

Ke k Bibat re

Chester R. Babst Ill, Esquire

Babst, Calland, Clements & Zomnir, P.C.

Two Gateway Center

Pittsburgh, Pennsylvania 15222

(412) 394-5400

Counsel of Record for

National-Southwire Aluminum Company

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