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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 955

## Text

: 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

6, rir (i)
ee (il)
pO nn (iv)
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0014%3A1. Public record. Not legal advice.