Petition — Portland Cement Ass'n v. Train

Supreme Court brief1975

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Supreme Court, U. S.

FILED

| SEP ¥@ 1975

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

Octoser Trem 1975

No. ”G 5 -4 1 5

PORTLAND CEMENT ASSOCIATION

An Illinois Not-For-Profit Corporation

Petitioner

ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

Respondent

MEDUSA CORPORATION

NORTHWESTERN STATES PORTLAND CEMENT CO.

Intervenors

—_—_—_-_ So

—— —-

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Rosert EK. HayTHorne

200 East Randolph Drive

Chicago, Illinois 60601

Epwarp W. WaRkEN

1776 K Street N.W.

Washington, D.C. 20006

Counsel for Petitioner

Of Counsel:

Krmxuanp & Eis

200 East Randolph Drive

Chicago, Illinois 60601

September 15, 1975

La Saile Street Press — Chicago Printed In U.S.A.

INDEX

PAGE

ees SO 8 cheese cae

SUED occ seccccsccupgeccnegcowescvecsenses cs 2

OT ET ONIN aids isi 5 lhc iad, Wes cacecwes 2

Statutes and Regulations ...................0000ce. 3

Statement of the Case 6.6.5. c ccc ccc cc cece cccccccccs 3

Reasons for granting the writ ...................... 9

1. Relating cost, environmental benefit and public

welfare need in stationary source standard-set-

ting concerns a vital question of federal law

which should be settled by this Court ........ 10

2. The validation of the cement standards con-

flicts directly with this Court’s “conclusive pre-

sumption” decisions and should be reversed .. 16

3. The professed inability of the court below to

discern obvious discrimination departs so far

from the accepted course of judicial proceed-

ings that this Court’s power of supervision is

UD. 0b 62Gic od ede k caddie coxtwcscaVerve. 20

CE. co ccccedcich ichaghaeekbneeausecasacwess 21

Appendix

Decision of Court of Appeals ................... A- 1

Order denying Petition for Rehearing ........... A- 6

1973 Decision of Court of Appeals .............. A- 7

Excerpts from EPA Response to Remand Order

Cieesivaseavs odaccebenduundecisdedavesdéuwes A-60

Excerpts from Federal Regulations concerning

Cases

Standards of Performance ................. A-104

Excerpts from Administrative Procedure Act ..A-107

Excerpts from Clean Air Act .............4.5- A-109

Excerpts from National Environmental Policy

BD cece cccdetcnkeds auctor tacsvecdeseveses A-113

CITATIONS

Air Pollution Bd. v. Western Alfalfa Corp., 416

CE NUD oh SRS OKEV EC Kaaee seb hecetetees 19

Baggett v. Bulliit, 377 U.S. 360 (1963) .......... 18

Bell v. Burson, 402 U.S. 535 (1971) ............. 16

Buckeye Power Co. v. EPA, 481 F.2d 206 (6th Cir.

SUED sb ccnddcendbiedebusdeseddceneecuetiees 10

Champlin Refining Co. v. Corp. Comm’n., 286 U.S.

By Gb 06s cb wks scavadseouddekewiadsetes 18

Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632

DEED nuhieckvednguneee ceselekatatanirneses 16

Connally v. General Const. Co., 269 U.S. 385 (1926) 18

Greater Boston Television Corp. v. FCC, 444 F.2d

See GE SUED 96.0 cpenacaedccdauesescnds 21

Indiana € Mich. Elect. Co. v. EPA, 509 F.2d 839

FR MED béescuvacavedhandendesnden nes 10

Portland Cement Ass’n. v. Ruckelshaus, 158 U.S.

App. D.C. 308, 486 F.2d 375 (1973), cert denied,

See Se EE décobaddwebbidaudcces vod: 6

ete nes ee + OS

PAGE

Portland Cement Ass’n. v. Train, 513 F.2d 506

i i EE Clete see ae od) 8

Richardson v. Belcher, 404 U.S. 788 (1971) ...... 20

St. Joe Minerals v. EPA, 508 F.2d 743 (3d Cir.

1975) (pet. for cert. pending) .............06. 10

Stamley v. Illinois, 405 U.S. 645 (1972) .......... 16

State v. Sheriff of Ramsey County, 43 Minn. 241,

i ho cesceusebheseeeceens des 21

Train v. Natural Resources Def. Council,

US. , 43 L.Ed.2d 731 (1975) ........... 3

Union Elect. Co. v. EPA, 515 F.2d (8th Cir. 1975) 10

U.S.D.A. v. Murry, 413 U.S. 508 (1973) ......... 16

Vlamdis v. Kline, 412 U.S. 441 (1973) ........... 16

Miscellaneous

B.N.A. OSHA Rptr. 1554 (May 1, 1975) ......... 12

Capital Needs in the Seventies (Brookings Inst.

pe er er 11

Conference Board, Inc. Study, B.N.A. Environ-

mental Rptr. 366 (June 20, 1975) ............ 11, 12

Council on Environmental Quality, Environmental

eee 12,13

Council on Environmental Quality, The Economic

Impact of Environmental Programs (CEQ 1974) 11

Environmental Protection Agency, Application of

NEPA to EPA’s Environmental Regulatory Ac-

EY EE Se ic cee ecieeesuadecest ses 14

PAGE

H.R. Rept. No. 93-275 (93rd Cong., Ist Sess.) ...12, 15

Interlaboratory Cooperative Study of the Deter-

mination of the Relative Density of Black Smoke,

ASTM Pub. DS 55-S10 (1974) ...............

Statements of Senators Randolph and Muskie, 116

Cong. Rec. 42393 (Dec. 18, 1970) ...........5:

The Capital Needs and Savings Potential of the

U.S. Economy (N.Y. Stock Exchange, Sept. 1974)

The Conclusive Presumption Doctrine, 72 Mich.

L. Rev. GOD (1094) ...ccccecccsvecsseuseenene

The Irrebuttable Presumption Doctrine in the Su-

preme Court, 87 Harv. L. Rev. 1534 (1974) ....

Visual Plume Readings—T oo Crude for Clean Air

Laws, VII Natural Res. Lwyr. 457 (1974) .....

IN THE

Supreme Court of the Anited States

Ocroser Term 1975

No.

PORTLAND CEMENT ASSOCIATION

An Illinois Not-For-Profit Corporation

Petitioner

ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

Respondent

MEDUSA CORPORATION

NORTHWESTERN STATES PORTLAND CEMENT CO.

Intervenors

- =

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioner, Portland Cement Association, prays that a

Writ of Certiorari issue to review the decision and order of

the United States Court of Appeals for the District of

Columbia Circuit in this case.

Opinion Below

The opinion of the Court of Appeals for the District of

Columbia Circuit, reported at 513 F.2d 506, appears in the

Appendix. (A-1) The petition below was filed, as provided

in the statute, with the Court of Appeals. Thus, there was

no trial court action or decision. The petition was originally

heard in 1973 and the court remanded the record to the

agency with instructions. 486 F.2d, 375, cert. denied, 417

U.S. 921. (A-7) Following remand, the case was reargued.

The court’s subsequent opinion is the subject of this Pe-

tition.

Jurisdiction

The decision and order of the court below was entered

on May 22, 1975. A timely petition for rehearing was de-

nied on June 19, 1975 (A-6) and this petition for certiorari

was filed within 90 days of that date. The Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

Questions Presented

1. Must the cost of pollutant control be related to ex-

pected environmental benefit and public welfare need in

the promulgation of stationary source standards under § 111

of the Clean Air Act, or may the EPA Administrator impose

the most stringent standard “technolog.cally achievable”

regardless of economic cost or demonstrated need to protect

public health and welfare?

2. Must « clear air standard reliably indicate a degree

of pollution and be capable of reasonably accurate measure-

ment, or—

(a) Is a mass standard to measure total pollution

valid if it can be violated by a momentary excessive

emission?

(b) Is a plume opacity standard valid when equal

amounts of pollution can produce plumes of varying

Setanta te P< tate?

opacity and subjective measurement of the degree of

opacity is highly inaccurate?

3. Do constitutional guarantees against discrimination

apply to environmental regulations to prevent different

standards for sources whose emissions of the same pollutant

can be controlled to the same extent?

Statutes and Regulations

The statutes and federal regulations involved in this

case are:

Administrative Procedure Act, 5 U.S.C. § 553, 706.

Clear Air Act, 42 U.S.C. § 1857

Standards of Performance for New Stationary Sources,

40 C.F .R. 60.42, 60.52, 60.62, 60.92

The pertinent parts of these statutes and regulations are

set forth in the Appendix.

Statement of the Case

The Clean Air Act provides for ambient (ground level)

standards specifying air quality necessary to protect public

health and welfare. To achieve this degree of air quality,

the states are directed to issue and enforce implementation

plans, which are subject to EPA approval.’ This is an on-

going program.’

Supplementing this pattern of regulation, the Act pro-

vides for federal standards to limit the emission of pol-

lutants from newly constructed or modified stationary

142 U.S.C. § 1857 ¢-4, 5

2 See Train v. Natural Resources Def. Council,

43 L.Ed.2d 731 (1975)

US.

sources.* The EPA administrator is directed to promulgate

such standards—

which reflect{s] the degree of emission limitation

achievable through the application of the best system

of emission reduction which (taking into account the

cost of achieving such reduction) the Administrator

determines has been adequately demonstrated. 42

U.S.C. § 1857 ¢-6 (a)(1), (A-109)

Characteristically, the Administrator has issued two types

of standard for particulate* emissions from new stationary

sources: a mass standard which can be expressed as the

weight of the particulate contained in a unit of exhaust gas;

and an opacity standard stated as the relative density of the

plume from a stack emitting the gas.

The Administrator intends each of these standards to

perform a distinct function in his regulatory scheme. The

more reliable mass standard (tested by collecting and

weighing particles in the exhaust gas) is applied to newly

constructed facilities when they become operational to

demonstrate that the installation can meet the standard.®

The plume opacity standard is directed toward subsequent

enforcement, i.e., to measure whether the facility is con-

tinuing to comply with the regulation. This functional

distinction is not prescribed by the statute, which provides

that exceeding any standard at any time is unlawful.’

8 42 U.S.C. § 1857 e-6 (A-109)

* The particulates with which this case is concerned are small

particles of ash or dust suspended in industrial exhaust gasses.

There is no indication that their chemical or physical characteristics

make them inherently harmful to health or property. Only their

presence in excessive volume is undesirable.

5°40 C.F.R. § 60.8 (A-104)

® 486 F.2d at 400 (A-56, 64)

"42 U.S.C. § 1857 e-6(e) (A-111)

elated ated

—~— we

In response to his statutory directive, the Admiristrator

promulgated the following standards for particulate emis-

sions from cement, asphalt concrete and fossil-fuel burning

power plants and municipal incinerators :*

alten ty }— J

Cement plants ................ .03* 10%

Asphalt concrete plants ....... 04 — 20% **

tt ara A Bed .06* 20%

Municipal incinerators ........ .08* None

* Max. 2 hr. avg.

** 40% opacity 2 min./hr. allowed

When the cement standards were promulgated in 1971

Petitioner sought to have them set aside because:

Achievability had not been adequately demonstrated—

the two tests on which the mass standard was based

had not been conducted in accordance with EPA’s own

test procedures for measuring compliance ;

Cost had not properly been taken into account—great

cost to remove a small volume of pollutants would be

required at the level of control prescribed by the stand-

ard and public health and welfare need had not been

shown;

Plume opacity is not a constitutionally valid standard

under an anti-pollution statute because opacity is not

a reliable indicator of pollutant volume and observers’

ratings of plume opacity are highly inaccurate; and

The mass standard is discriminatory—it requires

cement plants to exert a higher degree of control at

greater incremental cost to produce cleaner emissions

than sources emitting a greater volume of the same

type of pollutants whose emissions can be controlled to

the same degree by the same type of equipment.

* 36 Fed. Reg. 24876 (12-16-71); 37 Fed. Reg. 5767 (3-21-72) ;

39 Fed. Reg. 9309 (3-8-74) (A-104 et seq.)

Upon first hearing, the reviewing court found the ad-

ministrative record inadequate but did not set the standards

aside. It remanded the record to the Agency, principally

for further explanation concerning the validity of the tests

on which the standards were based.’ The opinion suggested

that the Administrator should consider cost studies sub-

mitted to him;'® explain the propriety of basing a 2 hour

average standard on a 30 minute test;'' support the plume

opacity standard as being “consistent with the statute” and

demonstrate that opacity measurements can be made with

reasonable accuracy.'? The Court stated that the statute

does not require the Administrator to justify standard

differences between industries but did not mention or

discuss constitutional guarantees against discrimination.”

During the course of remand—

(1) Petitioner submitted an analysis showing that

20% of the total cost of control of a cement plant using

a precipitator'* would be required to remove the last

1/10 of 1% of particulate required to meet the standard

—a cost-benefit ratio of more than 100 to 1; and pointed

out that nothing in the record indicated the removal

of this last 1/10 of 1% is needed to protect public health

or welfare. Petitioner also identified gross errors and

omissions in two cosmetic economic studies which the

agency had prepared in connection with the promulga-

tion process.'®

® Portland Cement Ass’n v. Ruckelshaus, 158 U.S. App. D.C. 308,

486 F.2d 375 (1973) ; cert. denied, 417 U.S. 921 (1974) (A-7)

10 Td. at 320 (A-29)

11 Td. at 330 (A-48)

12 Td. at 334 (A-56, 58)

13 Td. at 322 (A-32)

14 This device is necessary in some plants and its use was con-

templated in the standard-setting process. 37 Fed. Reg. 5767

(3-21-72) (A-106)

15 Assumed model plant size, interest rates and fuel costs were

grossly under-estimated and no consideration was given to ability

to raise necessary capital in the face of predicted shortages of

capital funds.

et cm wo

ee ee...

(2) The Administrator, responding to the court’s

' comment that he should explain how 30 minute samp-

ling episodes could demonstrate compliance with a

2 hour average performance, simply removed the

averaging period from the mass standard.!* This was

=. without advance notice to permit public com-

men

(3) The Agency conducted further plume opacity

pag and relaxed the opacity standard from 10%

0 0.

During remand the Administrator submitted to Peti-

tioner a draft of his proposed response, Petitioner com-

mented, and the Administrator supplemented his response

and returned the record to the Court. In his response,!®

the Administrator:

(1) Did not attempt to explain the errors in his

economic studies and stated that he believes the

strictest achievable standards should be set (regardless

of cost), that cost-benefit analysis cannot be applied

to stationary source standards, that the agency does

not relate to cost of control to the amount of pollutant

collected, and that the effect of the standards cannot

be related to the ambient air standards which identify

levels required to protect public health and welfare.*°

(2) Conceded that different particle sizes, stack

diameters and weather conditions will produce differ-

ent opacities in plumes containing the same pollutant

volume, and that a substantial number of qualified

observers would rate a complying 20% plume to be in

violation, some of them rating it to be as much as 38 %

more opaque than it really is. He stated that a source

16 39 Fed. Reg. 20791 (6-14-74)

17 This violated express provisions of the Administrative Pro-

cedure and Clean Air Acts. 42 U.S.C. § 1857 e-6(b) (1) (B)

(A-111) ; 5 U.S.C. § 553(e), § 706 (A-107, 108)

8 39 Fed. Reg. 39874 (11-12-74) ; 40 C.F.R. § 60.62 (A-105)

1” EPA Response, ete., EPA—450/2-74-023 Nov., 1974), (here-

inafter “Response”) (A-60 et seq.) n

2° Response, 65 (A-60-63)

complying with the mass standard could be expected

to violate the opacity standard on occasion and that

he would not enforce the 20% standard unless the

observer rated the plume to be more opaque than

27.5%.

(3) Coneeded that power, cement and asphalt con-

crete plants all can control particulate emissions to

the same degree, but furnished no rational explanation

for tne differences in the standards for those sources.”

On the basis of the supplemented administrative record

the Court issued its per curiam decision holding the cement

standards to be valid.” In its decision the court:

(1) Held that the Administrator need not apply

cost-benefit analysis to stationary source standard-

setting and opined that a technologically achievable

standard need not be relaxed unless an industry can

prove effectively thai it cannot bear the costs of meet-

ing the standard and survive;

(2) Validated a mass standard to control total pol-

lution which can be violated by a momentary increased

emission, the standard having been amended by a pro-

cedure which violated two statutes;

(3) Upheld the plume opacity standard, commenting

that future learning might support the value of plume

opacity in pollution control; and

(4) Stated it could find no basis to invalidate the

cement standard as discriminatory and added that

“accumulating experience” might present a basis for

narrowing the differences between the cement and

other standards. Constitutional guarantees against dis-

crimination were not mentioned.

21 Jd at 109 et seq. (A-91, 94, 73, 90, 78, 88)

22 Td at 67, 68 (A- 62, 63)

23 Portland Cement Ass’n. v. Train, 513 F.2d 506 (U.S. App. D.C.

1975) (A-1) Judge Leventhal who wrote the remand decision and

heard oral argument after remand did not participate in the

decision.

Pe ee ere

a ee ee

Reasons for Granting the Writ

In stark relief this case presents three distinctly defined

issues of critical current national importance:

(1) Must the cost of pollution control be balanced

against environmental benefit and public health and

welfare need;

(2) Can clean air standards be valid if they fail to

reliably measure pollutant volume with reasonable ac-

curacy; and

(3) May sources which can be controlled to the same

degree be subjected to different levels of control.

Resolution of these issues will establish basic legal par-

ameters for all environmental regulation by specifying the

principles essential to valid regulation; the requisite char-

acteristics of a valid standard; and the extent to which the

Constitution applies in allocating, between sources, the

responsibility to clean the environment.

These important issues of federal law have not been

settled. They have been the source of extensive confusion

and contention in the federal administrative process and

in state processes which have followed federal leadership.

This confusion and a massive volume of litigation at all

levels impedes the sound progress of environmental im-

provement. These impediments should be removed by an

authoritative decision of this Court in this case which,

because it does not concern an immediate loss of employ-

ment or exposure of a community to a potential health

hazard, is not a “hard case” likely to make “bad law.”

Without such a decision, however, substantial losses of

national productivity and employment opportunity are

inevitable.

Unless the Writ issues, the decision below will be cited

to support contentions that the cost of environmental con-

trol is irrelevant, that unreliable standards which cannot

be measured with reasonable accuracy are valid, and that

constitutional guarantees do not apply to environmental

regulations. Such contentions will spawn and feed pro-

liferating litigation.

1. Relating Cost, Environmental Benefit And Public Wel-

fare Need In Stationary Source Standard-Setting Con-

cerns A Vital Question Of Federal Law Which Should

Be Settled By This Court.

Virtually every informed, concerned and responsible

source throughout government, industry and academia

urges that cost-benefit analysis be applied to environmental

regulation. The Administrator, however, denies the obliga-

tion to apply such analysis to a major part of the federal

clean air program—the setting of stationary source stan-

dards.* The Administrator’s position has been upheld by

the court below. This result is contrary to the will of

Congress as expressed in the Clean Air Act. Since the

court below has exclusive jurisdiction over direct review

of clean air standards,”° only this Court can correct that

interpretation and restore the will of Congress.

The Clean Air Act states promotion of public health and

welfare and national productivity as principal purposes.®

This declaration expresses the intent of Congress that the

Act be “both an economic measure and an air pollution

measure”.*? Accordingly, § 111 directs that standards be set

*4 He also resists responsibility to apply economic consideration

in his review of state implementation plans. See: St. Joe Minerals

v. EPA, 508 F.2d 743 (3d Cir. 1975) pet. for cert. pending; Union

Elect. Co. v. EPA, 515 F.2d 206 (8th Cir. 1975) ; Ind. & Mich. Elect.

Co. v. EPA, 509 F.2d 839 (7th Cir. 1975) ; Buckeye Power Co. v.

EPA, 481 F.2d 206 (6th Cir. 1973). In the case at bar EPA’s duty

to consider cost is even greater than in its review of implementation

plans. The stationary source standards are federal standards and

if EPA does not consider their economic impact no one will.

25 42 U.S.C. § 1857 h-5(b) (1) (A-112)

26 42 U.S.C. § 1857(b) (A-109)

7 In the debates on the final passage of the Act, the following

colloquy occurred :

“MR. RANDOLPH. I know at times on the subcommittee and

on the committee we have talked about the economics of this

Sgbe Dy

—

Ne ee ee

Owe he

Wt ede, POSER DAG ait sha Ria 4 it othe dei

“taking into account the cost of achieving” them.?*

This unmistakable legislative directive has been rejected

by the Administrator. He stated to the court below:

We believe that Congress intended § 111 to be used to

establish emission limitations which are the lowest that

can be achieved by that industry. Where the cost of

meeting such standards would be so great that the in-

dustry could not bear the costs and survive, such

standards could not be implemented by the industry

regardless of technological feasibility.2°

He does not accept the possibility that the standard would

be relaxed to permit the industry to survive. His position

is now established federal law by virtue of the decision

below.

The economic cost of pollution control is a major matter

of vital national concern. Vast expenditures will be required

to achieve federal standards.” Critical limitations on the

availability of capital funds to finance these costs are pre-

dicted by responsible sources.*1 Obviously, the diversion of

limited capital from productive to pollution control facilities

legislation as well as to health standards of the legislation, and

I know that the Senator from Maine has been one of those who

have recognized that this legislation is both an economic

measure and an air pollution measure. I believe that this is

correct ; may I inquire whether the Senator shares that view?

MR. MUSKIE. The Senator is correct.” 116 Cong. Ree. 43293,

(12-18-70) emphasis supplied.

28 42 U.S.C. § 1857 ¢-6(a) (1) (A-24, 109)

2° Response, p. 66 (A-61)

8° The Council on Environmental Quality estimates the economic

abatement costs required by current federal environmental legisla-

tion to be 195 billion dollars through 1982. The Economic Impact

of Environmental Programs, (CEQ, 1974).

31 The Capital Needs and Savings Potential of the U.S. Economy

(N.Y. Stock Exchange, Sept., 1974); Capital Needs in The

Seventies (Brooking Inst., 1975) ; Conf. Bd. Ine. Study, B.N.A.

Envir. Rptr., p. 366 (6-20-75)

will depress national productive capacity and employment

opportunity and place upward pressure on prices. Never-

theless, these adverse effects must be undertaken to a major

extent in order to clean the environment. But Congress did

not intend our limited financial resources to be wasted by

expenditures which secure only minimal environmental

benefits.

In order to assure that the maximum benefit is attained

at minimum cost, these two factors must be quantified and

balanced. All responsible, concerned sources (except EPA

and the court below) require or urge that such balancing be

applied to environmental regulations. These sources include

the National Environmental Policy Act,®? the Clean Air Act

(as interpreted in the Appeals Court’s remand decision®*),

Congressional committees,** knowledgeable professionals,**

the Council on Environmental Quality,** and the President

of the United States.%7

82 This Act requires an impact statement which explains “the

relationship between local short-term uses of man’s environment

and the maintenance and enhancement of long-term productivity.”

42 U.S.C. § 4332 (A-113)

33“. . section 111 of the Clean Air Act, properly construed,

requires the functional equivalent of a NEPA impact statement.”

486 F.2d at 384 (A-22)

34 “By setting standards that are perhaps too high, we have

forced massive expenditures that may result in only modest im-

provements. ...” H.R. Rpt. No. 93-275 at 53

°° “What is spent for pollution control must meet a cost-benefit

analysis to show that the money is spent better here than elsewhere.”

Conf. Bd. Rpt., BNA Envir. Rptr., p. 366, 6-20-75

*°“Decisions on attaining different levels of environmental

quality need to take into account the benefits to be attained and the

costs to be incurred. When the expected gains are large relative to

the costs, it is clearly in our interest to move forward in cleani

up the environment.” (Environmental Quality, 1971 at 118)

7 “All too often the Federal Government promulgates new rules

and regulations which raise costs . . . to achieve small or limited

social benefits. In these cases, we must either revise proposed rules

and regulations to lower costs or we must not adopt them.” BNA

OSHA Rptr. p. 1554 (5-1-75)

One eee ee eTe i es Oe eee en eee)

—

Those statutes and commentators have recognized the

widely applicable principle that costs of control increase

exponentially as benefit levels rise—to the point where mas-

sive cost is required to achieve a minimal improvements in

the benefit level.** This principle is more fully articulated

in a report to the Michigan Public Service Commission

which states as follows:

The costs of pollution control vary exponentially with

the degree of pollution abatement. It is generally not

expensive to exercise substantial pollution control (i.e.,

75-90 percent). However, it is extremely expensive to

control pollution the last little bit ( e.g., from 90 percent

to 95 percent, or 95 percent to 99 percent, or 99.0 per-

cent to 99.5 percent). This means that a stringent set

of regulations is extremely expensive. On the other

hand, this also means that a great deal of money can

sometimes be saved by relaxing stringent regulations

slightly, without corresponding adverse environmental

effects. Environmental Protection Study, p. 3 (ICF,

Inc. Wash. D.C., 1975)

Despite this groundswell of informed opinion and the

obvious national interest need, cost-benefit analysis was not

applied in setting the cement standards. The Administrator

states :

EPA does not believe that cost-benefit analysis can

be established for standards under $111 nor does it

believe that Congress intended that standards be estab-

lished or justified on the basis of such an analysis.*®

The court below effectively affirmed this Agency contention.

The Administrator is wrong. Cost-benefit analysis can

and is being applied to environmental regulations by

qualified professionals.*° EPA’s annual reports to Congress

88 “Costs of curbing the amount of discharged wastes vary at

different levels of abatement. Usually the higher the proportion of

waste discharge that is curtailed, the greater the cost of abatement

per unit withheld.” Environmental Quality 1971 at 118 (CEQ 1971)

5° Response, p. 66 (A-61)

4° E.g., Environmental Protection Study, supra.

entitled “The Cost of Clean Air” state the cost necessary to

achieve its standards. These are cost-benefit analyses.

Two cost-benefit approaches are possible. Cost can be re-

lated to the improvement in ambient air quality or to the

volume of pollutants removed from source emissions. The

Administrator rejects both approaches.‘

He states that the cost of meeting stationary source

standards cannot be related to the effect on ambient air

levels.41 He speaks with forked tongue.4? To the public

he pledges that in proposing standards he will “delineate”

environmental effects and discuss “economic factors”.“? He

does not explain his rejection of a published EPA staff re-

port concluding that economic cost and environmental ben-

efits can be balanced.**. And in a May 25, 1975 letter to

Senator Muskie he identified over 5,000 sources in 8 major

categories (which do not include cement plants) whose lim-

ited control capabilities will prevent ambient standards

‘1 If the Administrator really cannot relate his standards to

ambient air quality he may well be exceeding his power under the

Constitution and the Clean Air Act, the stated purpose of which

is “to promote the public health and welfare.” 42 U.S.C. § 1857

(b)(1) (4-109)

*2 The current EPA Administrator was the CEQ chairman when

it reported that environmental decisions should balance costs against

benefits. (Note 36 supra)

*8 38 Fed. Reg. 15653 (6-14-73)

** Application of NEPA to EPA’s Environmental Regulatory

Activities, (EPA, Feb., 1973). That report states: “1. Substantive

Effects: Full compliance with NEPA will result in better documen-

tation of the secondary impact of the standards and of the criteria

for selection of the source categories to be regulated. The alterna-

tives explored, both in regard to standards and technology, would

be disclosed to the public. Any adverse effects would be made

public with the rationale for the standard set and the balances of

benefit versus adverse effects, Currently the development of new

source performance standards takes into account the cost of control

and the economic impact of the standard. If compliance with NEPA

requires a balancing of cost and environmental effects or benefits,

significant changes in the standards might occur so that best control

technology might not be prescribed. The performance standards,

therefore, may not meet the criteria of the Act”.

from being achieved by mid-1975,° This conclusion could

not have been reached without relating stationary source

emissions to ambient air quality.

Comparing cost to the amount of pollution abated is also

rejected by the Administrator. This is the approach re-

ferred to by the Council on Environmental Quality.“ Uti-

lizing this approach Petitioner presented a cost-benefit

analysis constructed from data published by the Council

and EPA itself. The Administrator brushed this aside with-

out explanation. He said:

This type of cost effectiveness analysis was neither

the basis for setting the Portland cement standard nor

any other new source performance standard.‘7

“This type of cost effectiveness analysis” is precisely

what the statute requires when it directs the Administrator

to take into account the cost of achieving a “degree of

emission limitation.” 40 U.S.C. § 1857 c¢-6(a)(1), (A-109)

As stated in the remand opinion section 111 “requires the

Administrator to ‘take into account the cost of achieving

such reduction’.” (A-24)

In short the Administrator will not give meaningful con-

sideration to cost in his stationary source standard setting

and he has been upheld by the only court authorized to

review his action. In the national interest this Court can-

not permit that result to stand. As stated by a congressional

committee :

The potential impact on the economic and social well-

being of this nation of actions by [EPA] is so great

that it is absolutely essential that the Agency be re-

quired to consider the impact of [its] actions. H.R. Rpt.

No. 93-275 at 54 (1973)

*° BNA Envr. Rptr. p. 474 ( 7-17-75)

46 Supra, note 43

*? Response, p. 67 (A-62)

2. The Validation Of The Cement Standards Conflicts

Directly With This Court’s “Conclusive Presumption”

Decisions And Should Be Reversed.

The cement standards create a conclusive presumption

that a source which exceeds the standard violates the

statute. Under these circumstances, the regulation must

have a “rational relationship to the statutory purpose”**

and must be “necessarily or universally true in fact.’*® This

principle is established by several decisions of this Court.

Bell v. Burson,®® Stanley v. Illinois,* Vlandis v. Kline,

U.S.D.A. v. Murry and Cleveland Bd. of Ed. v. LaF luer5?

see also The Irrebuttable Presumption Doctrine in the

_ Supreme Court, 87 Harv. L. Rev. 1534 (1974); The Con-

clusive Presumption Doctrine, 72 Mich. L. Rev. 800 (1974).

The statutory purpose is to curb pollution. Thus the

standard must “necessarily” and “universally” indicate the

maximum volume of pollution which the statute permits.

Momentary emissions do not “necessarily or universally”

indicate total pollutant volume. The defect of a momentary

emission standard can be understood by applying simple

common sense, i.e., a source emitting pollution at a steady

rate of 1 lb./hr. would comply with a 2 lb./hr. standard.

But a source operating at % lb. rate for 59 minutes and

polluting far less than the other source would exceed the

standard and violate the law if, for one minute, it emitted

at a rate greater than 2 lb./hr. This phenomenon is recog-

nized by the OSHA standards and the EPA ambient air

standards which prescribe reasonable time periods to com-

pute average concentrations.** Apparently recognizing the

*8 U.S.D.A. v. Murry, 413 U.S. 508 (1973)

*° Viandis v. Kline, 412 U.S. 441 (1973)

5° 402 U.S. 535 (1971)

51 405 U.S. 645 (1972)

52 414 U.S. 632 (1974)

53 29 C.F.R. § 1910; 42 C.F.R. Part 410

propriety of such standards, EPA initially prescribed a 2

hour averaging period fer particulate emissions.“* Only

after the court suggested the Agency should explain how a

30 minute test could prove 2 hour performance, did the

Agency remove the averaging feature.**

Plume opacity also cannot be a valid standard. The

opacity of a plume does not “necessarily or universally”

indicate the amount of pollution it contains. EPA’s re-

sponse®** frankly stated that the same amount of pollution

can produce different plume opacities depending on the

size and shape of the particles, the diameter of the stack

and the weather conditions, and conceded that emissions

which comply with the more accurate mass standard can,

at the same time, produce a plume which violates the opacity

standard.*’ Recognizing this possibility the U.S. Depart-

ment of Commerce has protested the use of plume opacity

as a standard.**

Additionally, visual evaluation of plume opacity is in-

accurate.” The Administrator concedes that, on occasion,

even under controlled conditions, nearly one-third of a

group of qualified observers may rate a 20% plume as much

as 27.5% opaque—an error of 38%.*° This inaccuracy is

highlighted by the standards themselves where a 20% level

is applied equally to cement plant plumes and to other

plumes which are permitted to contain more than twice the

°¢ 36 Fed. Reg. 24876 et seq. ( 12-16-71)

55 See pp. 6, 7 supra

5¢ No non-judicial expertise is necessary to adjudicate this matte

The reviewing court need only read what the Agency says. P

5? Response, p. 111 et seq. (A-91, 94, 90)

58 38 Fed. Reg. 34766 (10-21-74)

°° For a complete discussion of this subject see Visual Plume

aor (isa) Crude for Clean Air Laws, VII Natural Res. Lwyr.

® Response, p. 108, 109 (A-78, 88)

volume of pollutants.*’ This inaccuracy has been confirmed

by the American Society for Testing and Materials which,

after careful study, concluded that plume readings are not

precise enough to provide good emission control or reliable

enforcement.*?

The Administrator’s position on this subject is repugnant

to law and reason. Governmental regulations must be suffi-

ciently definite to identify the conduct which is prohibited.

Baggett v. Bullitt, 377 U.S. 360 (1963) ; Champlin Refining

Co. v. Corp. Comm’n, 286 U.S. 210 (1932); Connally v.

General Const. Co., 269 U.S. 385 (1926). Permitting a plant

to be shut down and employees to lose work and income

on the basis of the inaccurate subjective judgment of a

smoke inspector is a violation of due process rights. This is

not cured by the Administrator’s unsecured representation

that the 20% standard will not be enforced unless the ob-

server reports opacity exceeding 27.5%."" If a regulation

is too indefinite to be enforced it is too indefinite to be

enacted.

The opinion below is equally incredible when it refers to

“non-judicial expertise.” No such expertise is needed to

read EPA’s comment that a source can, On occasion, exceed

the opacity standard even though the volume of pollutants

emitted is not excessive. Since this should invalidate the

standard under the “conclusive presumption” doctrine, the

court below had to reject that doctrine in order to say it is

“not warranted” to set the opacity standard aside. And the

court’s suggestion that future learning might support the

1 p. 5, supra

*? Interlaboratory Cooperative Study of the Determination of the

Relative Density of Black Smoke, ASTM Pub. DS 55-810 (1974)

*8 This is comparable to a promise that a motorist would not be

prosecuted for violating a 55 m.p.h. limit unless he is clocked at

more than 75 m.p.h.—nevertheless, some drivers would be prose-

cuted even though they were travelling at less than 55 m.p.h.

use of plume opacity ignores the clear fact that the more

EPA tests this measure of pollution the more unreliable

and inaccurate it is proved to be.

Plume opacity standards are no longer necessary for

enforcement. New and modified stationary sources must be

subjected to an initial performance test.®4 Thereafter, com-

pliance can be assured by a simple inspection of the control

equipment (similar to the usual boiler or elevator inspec-

tion) much more accurately than by plume evaluation. EPA

affirms this, stating that compliance can be assured by en-

forcement of its prescribed operating and maintenance

procedures even if plume opacity does not exceed the

standard.

Plume opacity regulations have been the source of prolific

litigation over the years.** N ow, more stringent regulations

bearing stiffer penalties are being enforced more strictly

producing an increasing volume of litigation. The constitu-

tionality of plume opacity standards has been and is being

contested in several cases and the issue has previously been

presented to this Court.*’

Probably every stationary source in the U.S. is subject to

a federal, state and/or local plume opacity regulation. EPA’s

studies have revealed fatal defects in these regulations.

This Court should resolve the validity of these regulations

in this case and eliminate this source of non-productive,

increasing litigation.

*4 40 C.F.R. § 60.8 (A-104)

* 40 C.F.R. 60.11(d) (A-66) ; 39 Fed. Reg. 9309 (3-8-74)

®° See 78 A.L.R. 2d 1328

87 Air Poll Bd. vy. Western Alfalfa Corp., 416 U.S. 861 (1974)

(decided on other grounds) :

3. The Professed Inability Of The Court Below To Dis-

cern Obvious Discrimnation Departs So “ar From The

Accepted Course Of Judicial Proceedings That This

Court’s Power Of Supervision Is Required.

The constitutional violation created by different standards

for sources subject to the same degree of control was

presented to the court below in four briefs and two oral

arguments. The Administrator gave no rational explanation

for the differences in treatment despite the fact that cement

plants are required to exert a much higher degree of control

to emit much cleaner air than sources of greater volumes of

the same pollutant.** The Department of Justice presented

no legal justification for this action, arguing (after remand)

only that it was “the law of the case”. The two decisions of

the court below fail even to mention the Constitution.

The applicable principle of constitutional law is unmis-

takable. Culminating a long line of uniform opinions, this

Court most recently said:

A statutory classification . . . is consistent with the

Equal Protection Clause of the Fourteenth Amend-

ment if it is ‘rationally based and free from invidious

discrimination’. Dandridge vy. Williams, 397 U.S. 471,

487. While the present case, involving as it does a

federal statute, does not directly implicate the Four-

teenth Amendment’s Equal Protection Clause, a classifi-

cation that meets the test articulated in Dandridge is

perforce consistent with the due process requirement

of the Fifth Amendment. Richardson vy. Belcher, 404

U.S. 788 (1971).

This principle should prevent EPA from discriminating

between sources in distributing the burden of controlling

emissions to achieve ambient standard levels. Instead, the

Agency contends it may impose standards on an arbitrary

Ina letter from the Administrator to Senator Muskie dated

5/12/75, eight categories of polluting sources expected to violate

State implementation plan limits past mid-1975 were identified.

Cement plants were not included.

ad hoc basis without reference to the amount of pollution

the respective source categories produce.*® This treatment

would not be discrimination if there were a rational ex-

planation for the difference in the standards. No such ex-

planation has been supplied.

The stated inability of the court below to discern dis-

crimination could set constitutional law back more than 80

years. In 1892 the Supreme Court of Minnesota, considering

a smoke ordinance, said:

No arbitrary distinction between different kinds or

classes of business can be sustained, the conditions

otherwise being similar. The statute is leveled against

the nuisance occasioned by dense smoke, and it can

make no practical difference in what business the own-

ers or occupants of the buildings in which such smoke

is produced are engaged. ... State v. Sheriff of Ramsey

County, 43 Minn. 236, 51 N.W. 112 (1892).

The court below has stated that discrimination should

not be permitted in administrative regulations. Greater

Boston Television Corp. v. F.C.C., 444 F.2d 841, 851 (D.C.

Cir. 1970). Apparently its inability to identify discrimina-

tion is limited to environmental regulations. Unless the

decision below is reversed, the principle stated over the en-

trance to this Court’s home should be amended to read:

EQUAL JUSTICE UNDER LAW

but

NOT UNDER ENVIRONMENTAL REGULATIONS

*° In its remand response, the Agency stated: “We believe that

Congress intended § 111 to be used to establish emission limitations

which are the lowest which can be achieved by that industry.”

(A-61) (emphasis supplied) Paradoxically, EPA’s implementation

plan regulations and those of 32 states require identical control lev-

els for cement and asphalt concrete plants—but EPA’s new source

standards provide different levels of control. (APTD-1334, Table

III (EPA, 1972), BNA Envir. Rep., St. Air Laws, p. 301 et. seq.)

Conclusion

The Writ must issue in this case so that standard-setting

bodies will give meaningful consideration to cost and public

health and welfare need, promulgate standards which re-

liably measure pollution, and distribute the burden of

achieving clean air fairly and without discrimination be-

tween source categories. Any further delay in enforcing

the will of Congress and applying established principles

of constitutional and administrative law to environmental

regulations will impede the achievement of clean air goals.

Respectfully submitted:

Rosert E. HaytHorne

200 East Randolph Drive

Chicago, Illinois 60601

Epwarp W. Warren

1776 K Street N.W.

Washington, D.C. 20006

Counsel for Petitioner

Of Counsel:

Kirkuanp & Exuis

200 East Randolph Drive

Chicago, Illinois 60601

PORTLAND CEMENT ASSOCIATION

ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

APPENDIX

PETITION FOR A WRIT OF CERTIORARI

Notice: This opinion is subject to formal revision before publication in the Federal

Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal

errors in order that corrections may be made before the bound volumes go to press.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PORTLAND CEMENT ASSOCIATION,

an Illinois not-for-profit

Corporation, Petitioner,

Russell E. TRAIN, Administrator,

Environmental Protection

Agency, Respondent,

Medusa Portland Cement Company and

Northwestern States Portland Cement

Company, Intervenors.

No. 72-1073.

United States Court of Appeals,

District of Columbia Circuit.

Argued April 1, 1975.

Decided May 22, 1975.

Association of cement manufactur-

ers brought suit seeking review of the

promulgation by the Administrator of

the Environmental Protection Agency,

under the Clean Air Act, of stationary

source emission standards for new or

modified portland cement plants. Subse-

quent to a remand for reconsideration

and clarification of certain matters, 158

U.S.App.D.C. 308, 486 F.2d 375, the

Court of Appeals held that (1) no rea-

sonable basis existed for invalidating as

discriminatory the achievable emission

standards promulgated, (2) the portland

cement industry failed to show inability

to adjust itself in a healthy economic

fashion to the ends sought by the Clean

Air Act as represented by the standards,

(3) plume opacity was not too unreliable

to be used either as a measure of pollu-

tion or as an aid in controlling emissions,

and (4) the standards prescribed were

valid.

Affirmed.

Leventhal, Circuit Judge, did not

participate.

1. Health and Environment 28

No reasonable basis existed for inval-

idating as discriminatory the achievable

emission standards promulgated for port-

land cement plants by the Administrator

of the Environmental Protection Agency

pursuant to the Clean Air Act. Clean

Air Act Amendments of 1970, § 111, 42

U.S.C.A. § 1857-6.

2. Health and Environment 228

Administrator of the Environmental

Protection Agency must take into

account the cost of achieving the emis-

Synopses, Syllabi and Key Number Ciassification

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

A-1

PORTLAND CEMENT ASSOCIATION v. TRAIN

sion reduction he prescribes. Clean Air

Act Amendments of 1970, § 111, 42 US.

C.A. § 1857c-6.

3. Health and Environment 228

Portland cement industry failed to

show inability to adjust itself in a

healthy economic fashion to the end

sought by the Clean Air Act as repre-

sented by emission standards prescribed

by the Administrator of the Environ-

mental Protection Agency. Clean Air

Act Amendments of 1970, § 111, 42 U.S.

C.A. § 1857c-6.

4. Health and Environment *=28

Plume opacity was not too unrelia-

ble to be used by the Administrator of

the Environmental Protection Agency, in

respect to the promulgation of stationary

source standards, as a measure of pollu-

tion or as an aid in controlling emissions

by portland cement plants. Clean Air

Act Amendments of 1970, § 111, 42 U.S.

C.A. § 1857c-6.

5. Health and Environment 28

Administrator of the Environmental

Protection Agency, in promulgating sta-

tionary source emission standards for

portland cement plants, satisfactorily

considered cement manufacturers’ sug-

gested alternative of dispersing pollu-

tants into the air rather than into water.

Clean Air Act Amendments of 1970,

§ 111, 42 U.S.C.A. § 1857c—6.

6. Health and Environment 28

Administrator of the Environmental

Protection Agency, in respect to the pro-

mulgation of stationary source emission

standards for portland cement plants,

adequately responded to the Court of

* Circuit Judge Leventhal did not participate in

this decision.

1. These standards prescribed a maximum

emission limit of .03 gr/scf for particulates

(cement dust) from newly-constructed or mod-

ified cement plants and a limit of 10% for the

Appeals’ remand mandate to identify the

bases for standards. Clean Air Act

Amendments of 1970, § 111, 42 U.S.C.A.

§ 1857c-6.

7. Health and Environment #28

Stationary source emission standards

promulgated by the Administrator of the

Environmental Protection Agency under

the Clean Air Act for new or modified

portland cement plants were valid.

Clean Air Act Amendments of 1970,

§ 111, 42 U.S.C.A. § 1857c-6.

On Hearing Subsequent to Remand

Proceedings Before the Environmental

Protection Agency.

Robert E. Haythorne, Chicago, IIl.,

with whom Edward W. Warren, Scran-

ton, Pa., was on the brief, for petitioner.

William L. Want, Atty., Dept. of Jus-

tice, with whom Wallace H. Johnson,

Asst. Atty. Gen., Edmund B. Clark and

Martin Green, Attys., Dept. of Justice,

were on the brief, for respondent.

Before FAHY, Senior Circuit Judge,

and LEVENTHAL * and ROBB, Circuit

Judges.

PER CURIAM:

The court remanded to the Adminis-

trator of the Environmental Protection

Agency, respondent, the case then before

us involving the validity of the station-

ary source standards ' he had promulgat-

ed? under section 111 of the Clean Air

Act* for new or modified portland ce-

ment plants. Portland Cement Associa-

tion v. Ruckelshaus, 158 U.S.App.D.C.

opacity of plumes from the stacks of such

plants.

2. 40 C.F.R. § 60.62 (December 16, 1971).

3. 42 U.S.C. § 1857c-6.

PORTLAND CEMENT ASSOCIATION v. TRAIN

308, 486 F.2d 375 (1973), cert. denied, 417

U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226

(1974). Some of the matters the court

then reviewed on the petition of the

Portland Cement Association we conclud-

ed reyuired further consideration and

clarification, hence the remand. These

matters have now been reconsidered and

clarified in the Administrator’s Response

to the Remand Order, formulated after

his draft of such Response had been the

subject of comments by the Association

and others. The Association has again

petitioned this court, to decide whether

the Administrator has complied with the

remand order and whether the standards

should be affirmed or set aside.

At argument petitioner’s counsel relied

upon a formulation of positions which he

handed to the court and which reads as

follows:

1. Do established constitutional guar-

antees against statutory discrimi-

nation apply to environmental reg-

ulations?

2. If so, may the v.ctim of a discrimi-

natory regulation have it set aside

through direct judicial review?

8. Under what, if any, circumstances

could economic considerations pro-

duce a standard lower than the

highest technologically achievable?

4. How does a standard prohibiting

momentary excessive emissions

conform to a statute whose pur-

pose is curbing the total volume of

pollution?

5. How can plume opacity be [a] val-

id standard when pollution and

plume opacity can not be reliably

correlated and evaluations of the

same plume by several qualified ob-

servers will vary substantially?

The issues raised in these questions

are more limited than those presented by

A-3

petitioner in its brief. Therefore, al-

though the questions will form the

frame of reference for this opinion, other

issues will be touched upon as well.

Questions 1 and 2 are directed to peti-

tioner’s contention that the emission

standard for cement plants is more strin-

gent than those for incinerators and

coal-fired power plants, and, also, for

plants of the competing asphalt industry,

as to which, however, no question had

been raised at the agency level.

[1] Petitioner’s contention is weak-

ened by its admission, made in its com-

ments on the Administrator’s draft re-

sponse to the remand, that the standard

for the portland cement industry is

achievable by that industry. Moreover,

our remanding opinion indicated our dis-

agreement with petitioner on the subject

of different emission standards for dif-

ferent industries. See, 486 F.2d at 389.

Amplifying upon what we there said, we

find no reasonable basis for invalidating

as discriminatory the achievable emission

standard for cement plants. Proof of

unreasonableness in the diversity of the

standards referred to is lacking. No

doubt the Administrator will be influ-

enced by accumulating experience should

it give rise to reasons for modification of

the range now existing between the pre-

scribed standards.

[2,3] Petitioner’s question No. 3 is

very generally phrased. Neither the

terms of our remand nor the proceedings

now before us require an answer by the

court. We note, however, that of course

section 111 of the Act requires the Ad-

ministrator to take into account the cost

of achieving the emission reduction he

prescribes. In our remanding opinion we

did not require respondent to prepare a

quantified cost-benefit analysis, showing

the benefit to ambient air conditions as

measured against the cost of the pollu-

PORTLAND CEMENT ASSOCIATION ‘v. TRAIN

tion control devices. We stated, how-

ever, that such studies as might be ad-

duced in comments should be considered

and that the Administrator should also

consider contentions and presentations

that the adopted standard unduly pre-

cludes the supply of cement, including

whether it is unduly preclusive as to cer-

tain qualities, areas, or low-cost supplies.

Though the Administrator found that

“relating the cost of control to the bene-

fits of the control at least at this time is

a practical impossibility,” he went on to

state that where the costs of meeting

standards would be greater than the in-

dustry could bear and survive, such

standards could not be implemented by

the industry regardless of technological

feasibility, and, moreover, that. a gross

disproportion between achievable reduc-

tion in emission and cost of the control

technique would not be required. Here

too we find no reason to disagree with

the Administrator’s disposition of this as-

pect of the remand. The industry has

not shown inability to adjust itself in a

healthy economic fashion to the end

sought by the Act as represented by the

standards prescribed.‘

Question No. 4 was not at issue on the

remand and we accordingly do not feel

called upon to deal with it.5

[4] As to question No. 5, we have

considered the detailed analysis by the

Administrator of numerous factors in-

volved in the use of plume opacity to

determine whether or not a portland ce-

ment plant achieves a prescribed stand-

ard of pollution control. We are not

4. The Administrator in his Response to the

Remand Order has fully considered and ration-

ally rejected the cost-benefit analysis which

was submitted by petitioner.

5. We add that the record before us affords no

basis for holding that controlling momentary

warranted on the basis of his analysis to

find that plume opacity is too unreliable

to be used either as a measure of pollu-

tion or as an aid in controlling emissions.

The Administrator, using trained

plume observers, has enlarged upon the

tests previously utilized, in the effort to

reach a reasonably accurate standard of

measurement of opacity. He sets forth

in detail the results which led to his 10%

Standard “as the standard which may

not be exceeded by new kilns at Port-

land cement plants,” with a relaxation,

however, now permitted, to 20% opacity

“to accomodate certain extreme circum-

stances.” His conclusions in resolving

the opacity problem and the achievabili-

ty of the prescribed opacity standard are

well reasoned. The court finds no sound

basis for rejecting them, remembering

the tempered review we exercise in

these matters of non-judicial expertise,

and remembering too that in this, as in a

somewhat related area which recently

confronted the Supreme Court under the

Clean Air Act, the courts cannot and do

not “attempt to foresee, at this stage in

the administration of the statute, all of

the questions, say nothing of the an-

swers, that may arise”—in that case over

the allocation of a limited number of

available variances under section

110(aX3) of the Act ‘—in this case over

the learning with respect to the value of

plume opacity in measuring and control-

ling pollution.

[5] We turn to another matter. In

our remand decision we held that respon-

dent was not required to file an impact

excessive emissions does not aid in urbing

total pollution.

6. Train, Administrator v. Natural Resources

Defense Council Inc, —- U.S. ——, — n.28,

95 S.Ct. 1470, 43 L.Ed. 2d — (1975).

statement pursuant to the National En-

vironmental Policy Act,’ but should set

out “significant adverse environmental

consequences” of its standards as a

“functional equivalent” of an impact

statement. We note now a contention

raised by petitioner in this regard, name-

ly, that water pollution will be aggravat-

ed as a result of the larger piles of kiln

dust caused by the tight emission con-

trols. We have no factual basis, how-

ver, for disagreeing with the position of

the Administrator that petitioner’s con-

ntion that the dispersal of the pollu-

nts into the air would better serve the

. . the total amount of particu-

lates disposed of will be less if collect-

ed by emission control devices than if

vented uncontrolled into the atmo-

sphere.

PORTLAND CEMENT ASSOCIATION v. TRAIN

To *he extent there is a problem, it is

the judgment of the Administrator

that the problem of water run off

from collected piles of particulate mat-

ter is less than the problem of uncon-

trolled releases of particulate matter

into the atmosphere.

{6} Finally, we note the Administra-

tor’s response to the court’s direction

that the bases for the emission standard

should be further identified. At the

time of our remand tests on only two

cement plants had been conducted.

Since then the Administrator has tested

five more plants. Although petitioner

had an opportunity to comment on the

results of only two of these, all seven

tests have shown that the emission

standard is achievable. The Administra-

tor has in this as in other respects ade-

quately responded to our remand.

[7] The consequence is that we hold

the standards prescribed to be valid.

The action of the Administrator in pro-

mulgating them is, accordingly,

Affirmed

7. 42 U.S.C. §§ 4321-4335.

United States Court of Anpeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 72-1073 September Term, 1974

Portland Cement Association, an

Illinois Not-For-Profit Corporation,

Petitioner

Rissell E. Train, Administrator, for he Visteict of Cclums's Cirec:t

Environmental Protection Agency, ee

Respondent - om Ss 2 s OS

é tut

Medusa Portland Cement Co.

Northwestern States Portland Cement Co.

Intervenors

Ives =: et is i NE

CLERK

Before: Fahy, Senior Circuit Judge; Leventhal and Robb, Circuit

Judges.

On consideration of petitioner's petition for rehearing,

it is

ORDERED by the Court that petitioner's aforesaid petition

is denied.

Per Curiam

For the Court:

LH,

E. KLINE

Clerk

Circuit Judge Leventhal did not participate in the foregoing order,

2 OY mae

wed 3 States Court of Appeals

Federal Reporter Seaty ‘ ty F -

error fa ord + ye are

Clerk of of any formal order corrections may be made before the

bound volumes go to

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 72-1073

PortLanp CEMENT ASSOCIATION, AN

Itutryois Not-For-Prorir Corporation, PETITIONER

Vv.

Wim D. RucketsHavus, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Mepusa Porttanp Cement Co.

NoRTHWESTERN States PortLanp Cement Co.,

INTERVENORS

Petition for Review of an Order of the Administrator,

Environmental Protection Agency

Decided June 29, 1973

Robert E. Haythorne, with whom Perry S. Patterson was

on the brief for petitioner.

James R. Walpole, Attorney, Department of Justice with

whom Kent Frizzell, Assistant Attorney General, Edmund

B. Clark and Martin Green, Attorneys, Department of Jus-

tice, were on the brief, for respondent. Raymond N.

Zagone, Attorney, Department of Justice also entered an

appearance for respondent.

Robert H. Shepard was on the brief for intervenor,

Northwestern States Portland Cement Company.

William H. Wallace was on the brief for intervenor,

Medusa Corporation.

Turner T. Smith, Jr., filed a brief on behalf of Long

Island Lighting Company and National Asphalt Pavement

Association, as amici curiae urging reversah

Perry S. Patterson entered an appearance for interven-

ors.

Before Fauy, Senior Circuit Judge, LeventHaL and

Ross, Circuit Judges.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LevENTHAL, Circuit Judge: Portland Cement Associa-

tion seeks review! of the action of the Administrator of

the Environmental Protection Ageney (EPA) in pro-

mulgating stationary source standards for new or modified

portland cement plants, pursuant to the provisions of Sec-

tion 111 of the Clean Air Act.?, Medusa Corporation and

Northwestern States Portland Cement Company were

granted leave to intervene by this court and they together

with petitioner, will be referred to as the cement manu-

facturers. Long Island Lighting Company has filed a brief

as an Amicus Curiae.

1 Section 307(b) (1) of the Clean Air Act, 42 U.S.C. § 1857h-

5(b) (1), requires that a petition for review of the action

of the Administrator in setting standards of performance

under section 111 of the Act “be filed only in the United

States Court of Appeals for the District of Columbia.”

242 U.S.C. § 1857c-6.

I. Statement or THe Case

Section 111 of the Clean Air Act directs the Administra-

tor to promulgate “standards of performance” governing

emissions of air pollutants by new stationary sources

constructed or modified after the effective date of pertinent

regulations.’ The focus of dispute in this case concerns

EPA compliance with the statutory language of Section

111(a) which defines “standard of performance” as fol-

lows: *

(1) The term “standard of performance” means a

standard for emissions of air pollutants which reflects

the degree of emission limitation achievable through

the poe of the best system of emission reduc-

tion which (taking into account the cost of achieving

such reduction) the Administrator determines has

been adequately demonstrated.

After designating portland cement plants as a stationary

source of air pollution which may “contribute significantly

to air pollution which causes or contributes to the endan-

germent of public health and welfare”, under Section 111

(b)(1)(A) of the Act,’ the Administrator published a pro-

*The term “new source” is defined as:

any stationary source, the construction or modification

of which is commenced after the publication of reg-

ulations (or, if earlier, proposed regulations) prescribing

a standard of performance under this section which will

be applicable to such source. 42 U.S.C. § 1857c-6(a) (2).

Modification is, in turn, 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. § 1857c-6(a) (4).

* 42 U.S.C. § 1857c-6(a) (1).

° 42 U.S.C. § 1857c-6(b) (1) (A). The designation of port-

land cement plant emissions was made on March 31, 1971, 36

Fed. Reg. 5931 (1971).

posed regulation establishing standards of performance

for portland cement plants. The proposed regulation was

accompanied by a document entitled “Background Informa-

tion For Proposed New-Source Performance Standards,”

which set forth the justification. Interested parties were

afforded an opportunity to participate in the rule making

by submitting comments, and more than 200 interested

parties did so.” The “standards of performance” were

adopted by a regulation, issued December 16, 1971, which

requires, inter alia, that particulate matter emitted from

portland cement plants shall not be: *

(1) In excess of 0.30 lb. per ton of feed to the kiln

(0.15 Kg. per metric ton), maximum 2-hour average.

(2) Greater than 10% opacity, except that where the

presence of uncombined water is the only reason for

failure to meet the requirements for this subpara-

graph, such failure shall not be a violation of this

section.

The standards were justified by the EPA as follows: *

The standards of performance are hased on stationary

source testing conducted by the Environmental Pro-

tection Agency and/or contractors and on data de-

rived from various other sources, including the avail-

able technical literature. In the comments on the pro-

posed standards, many questions were raised as to

costs and demonstrated capability of control systems

* The proposed standards were issued on August 3, 1971 and

published on August 17, 1971, 36 Fed. Reg. 15,704 (1971).

The Background Document, prepared by the Environmental

Protection Agency, Office of Air Programs, states: “The

proposed standards .. . are being distributed concurrently

with this document.” (JA at 20).

*34 comments, specifically addressed to the Portland Ce-

ment standards, are at Tab VIII of the Certified Record (C.R.).

They have been filed as a supplement to the Joint Appendix.

*36 Fed. Reg. 24,876 (1971).

* Id. at © 17.

to meet the standards. These comments have been

evaluated and investigated, and it is the Administra-

tor’s judgment that emission control systems capable

of meeting the standards have been adequately demon-

strated and that the standards promulgated herein

are achievable at reasonable costs.

On March 21, 1972, EPA published a “Supplemental

Statement in Connection With Final Promulgation”,”°

amplifying the justification for its standards and indicating

that it had been prompted by the action of this court in

Kennecott Copper Corp. v. E.P.A., 149 U.S.App.D.C. 231,

462 F.2d 846 (1972), to offer “a more specific explanation

of how [the Administrator] had arrived at the standard.”

This statement relied principally on EPA tests on exist-

ing portland cement plants to demonstrate that the promul-

gated standards were achievable.

The action of the Administrator has been challenged on

the following grounds: (1) The Administrator did not

comply with the National Environmental Policy Act of

1969 (NEPA). (2) Economie costs were not adequately

taken into account and the standards unfairly discriminate

against portland cement plants, in comparison with stand-

ards promulgated for power plants and incinerators. (3)

The achievability of the standards was not adequately dem-

onstrated.

Il. Comptiance With NEPA

Petitioners argue that EPA acted contrary to the re-

quirements of the National Environmental Policy Act of

1969, 42 U.S.C. §§ 4321-35, in failing to file a “NEPA” state-

ment in conjunction with the promulgation of the stationary

standards. They draw particularly on the language of

§ 102(2)(C) of NEPA which states: ™

The Congress authorizes and directs that, to the

'' 42 U.S.C. § 4832 (2) (C) (1970).

fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be inter-

preted and administered in accordance with the poli-

cies set forth in this chapter, and (2) all agencies of

the Federal Government shall—

> oe e eo

on proposals for legislation and other major

Federal actions significantly affecting the quality

of the human environment, a detailed statement

by the responsible official on—

(i) the environmental impact of the pro-

posed action....

1. Petitioners, in effect, predicate an EPA obligation to

file an impact statement on this simple syllogism: (1) All

federal agencies must file an impact statement; (2) EPA

is a federal agency; (3) EPA must file an impact state-

ment. Anaconda Copper Co. v. Ruckelshaus, 4 ERC 1817,

1828 (D. Col. 1972). If the premises be accepted, the logic

is clear. But the argument is more simplistic than simple,

for the premises require a more precise determination of

legislative intent. In ascertaining congressional intent

we begin with the language of a statute,’* but this is subject

to an overriding requirement of looking to all sources

including purpose and legislative history, to ascertain dis-

cernible legislative purpose.'’* The question is whether

EPA is a “federal agency” within the meaning of NEPA

—whether, and to what extent, Congress intended it to be

12 Caminetti v. United States, 242 U.S. 470, 485 (1917).

18“ T]he ‘plain meaning’ doctrine has always been sub-

servient to a truly discernible legislative purpose however

discerned,” by equitable construction or recourse to legislative

history. Wilderness Society v. Morton, Slip Opinion No. 72-

1796, at 22 (Feb. 9, 1973) (en banc), cert. denied —— US.

—— (1973); District of Columbia v. Orleans, 132 U.S. App.

D.C. 139, 141, 406 F.2d 957, 959 (1968).

A-12

“be hit “Whe a

— a

AD) OO ert elds, Te eed heals Ol (Eble

{

subject to the NEPA mandate concerning preparation of

impact statements.

2. A primary purpose of NEPA, and specifically the

impact statement requirement, was the design to co-ordi-

nate disparate environmental policies of different federal

agencies.'* At the time NEPA was enacted, on January 1,

1970,’* EPA was not yet in existence. EPA was created by

Reorganization Plan No. 3, submitted to Congress on July

9, 1970,’* which was designed to bring under one roof the

major environmental federal programs which until that

time had been scattered throughout different agencies of

the government. It is by no means clear, as will appear,

that NEPA’s impact statement requirement was intended

at time of passage of NEPA to be applicable to such en-

vironmental agencies as the National Air Pollution Con-

trol Administration of the Department of Health, Educa-

tion and Welfare or the Federal Water Quality Adminis-

tration of the Department of the Interior. But even assum-

ing it was applicable to them, it does not necessarily follow

that NEPA is applicable to EPA, which Congress did not

have before it, and which in its own organization accom-

plished the purpose of coordination of environmental ap-

proach. In statutory interpretation, the courts must often,

in effect, consider what answer the legislature would have

made as to a problem that was neither discussed nor con-

templated. Montana Power Co. vy. F.P.C., 144 U.S.App.

D.C. 263, 445 F.2d 739 (1970) (en banc), cert. denied, 400

U.S. 1013 (1971).

'* See Calvert Cliffs Coordinating Committee v. AEC, 146

U.S. App. D.C. 33, 47, 449 F.2d 1109, 1123 (1971); National

Resources Defense Council, Inc. v. Morton, 148 U.S. App.

D.C. 5, 13, 458 F.2d 827, 835 (1972).

'° 83 Stat. 853.

'® The reorganization plan was effective December 2, 1970,

35 Fed. Reg. 15623 (1970). See 42 U.S.C. § 4321 note (1970).

A-13

3. The impact statement issue requires us to consider

not only NEPA, but also the Clean Air Act and particularly

the statutory scheme by which new stationary source stand-

ards are promulgated."”

Section 111 of the Clean Air Act establishes precise time

schedules for the promulgation of new source standards."

The Administrator was required to publish, 90 days after

December 31, 1970, a list of categories of stationary sources

which “contribute significantly to air pollution which

causes or contributes to the endangerment of public

health or welfare.” Within 120 days of the inclusion of a

category, the Administrator is required to propose stand-

ards, and 90 days thereafter the standards are to go into

effect. Obviously, a strong argument can be made that the

Clean Air Act, and the provisions for unusual expedition

in disposing of the complex environmental and other prob-

lems faced by the agency, assumed that the agency would

not be subject to the additional time required to prepare

a “detailed” proposal of an impact statement, circulate the

statement to the agencies for comment and assess the com-

ments made.

The time constraint of the Clean Air Act is perhaps not

decisive '® but it is a substantial consideration and, as will

'T In order to give full effect to the Clean Air Act, it must

be read, at minimum, in pari materia with NEPA. See US.

v. Stewart, 311 U.S. 60 (1940). There is doctrine to the

effect that in case of conflict between two federal laws, the

later enactment is given precedence. US. v. Wrightwood

Dairy Co., 127 F.2d 907 (7th Cir. 1942).

'* 42 U.S.C. § 1857c-6(b) (1).

'® The quality of a draft impact statement might be lessened

to conform to the requirements of speedy action. NEPA

requires compliance only “to the fullest extent possible”, 42

U.S.C. § 4332, and is subject to a construction of reasonable-

ness. National Resources Defense Council v. Morton, 148

A-14

be seen, an inter-related aspect of that Act reinforces the

conclusion that NEPA is inapplicable to determinations

under it.

Long Island Lighting Company argues that the Act

could accommodate delay in the time allowed for publica-

tion of the list of categories of stationary sources until an

impact statement had been duly prepared, in compliance

with NEPA, and completed. This is at odds with the ex-

press language of the Act which specifies that any source

which contributes to the endangerment of public health or

welfare shall be placed on that list at the end of 90 days.

4. As we have already indicated, there is a serious ques-

tion whether NEPA is applicable to environmentally pro-

tective regulatory agencies. There is no express exemption

in the language of the Act or Committee Reports.” How-

ever, such an exemption is set forth in a document entitled

“Major Changes in S. 1075 as passed by the Senate” intro-

duced into the Congressional Record by Senator Jackson

U.S. App.D.C. 5, 15, 458 F.2d 827, 837 (1972). The need for

timely action is not exclusive with the Environmental Pro-

tection Agency. See SCRAP v. United States, 346 F. Supp.

189, 199 (D.D.C. 1972) (3-judge court), probable jurisdic-

tion noted 409 U.S. 1073 (1973).

A major difficulty with this approach is that it tends to

result in a group of second-class impact statements, ascribed

to time urgencies. In contrast, the Council on Environmental

Quality has established a relatively short comment time in

the interest of a uniform procedure that can accommodate

even agencies on a tight time table—to avoid “a delay incom-

patible with the nature of some government programs.”

THIRD ANNUAL REPORT 237 (1972).

The crunch under the Clean Air Act is that there is no

legal latitude available to delay the action, in order to give

more than lip service to the comment procedure.

20S. REP. No. 296, 91st Cong., 1st Sess. (1969); H. REP.

No. 765, 91st Cong., lst Sess. (1969).

during debate over approval of the Conference Report.”*

The document, in analyzing Section 102 of NEPA, de-

tailing the procedures and requirements of an impact state-

ment, stated that the provisions were “not designed to re-

sult in any change in the manner in which [environmental

agencies] carry out their environmental protection author-

ity”. It stated immediately thereafter:

This provision is, however, clearly designed to assure

consideration of environmental matters by all agencies

in their planning and decision making—especially those

agencies who now have little or no legislative authority

to take environmental considerations into account.”

Senator Muskie commented on this language as coming

from his discussions with Senator Jackson, and then stated,

in debate:

It is clear then, and this is the clear understanding of

the Senator from Washington [Jackson] and his col-

leagues, and of those of us who serve on the Public

Works Committee, that the agencies having authority

in the environmental improvement field will continue

to operate under their legislative mandates as pre-

viously established, and that those legislative mandates

are not changed in any way by section 102-5.

Manifestly, the statements of these two Senators, who

were among the most active in securing the passage of

NEPA, are entitled to weight in ascertaining legislative

intent.

“1115 Conc. REc. 40417 (1969).

22 Id. at 40418.

*3 Id. at 40423.

** Senator Jackson, floor manager of the debate on the Con-

ference Report, was the sponsor of the original Senate bill on

NEPA, S. 1075, chaired the Senate Committee on Interior and

Insular Affairs, which considered the bill, and was a member

of the Conference Committee. Senator Muskie was the Chair-

man of the Subcommittee on Air Pollution of the Committee

on Public Works.

A-16

However, their understanding was not formalized by any

statement in the Conference Report or in the section-by-

section analysis of the bill as reported by the Conference

Committee.” Senator Allott, ranking minority member of

the Interior Committee and of the Conference Committee,

also a supporter of NEPA, stated: *

. while the explanatory statements relative to the

interpretation of the conference report language, as

provided by the chairman, are useful, they have not

been reviewed, agreed upon, and signed by the other

Senate conferees. Only the conference report itself

was signed by all the Senate conferees, and therefore,

only it was agreed upon and is binding.

As for the House of Representatives, its action on the

Conference Report was equally ambiguous. Representa-

tive Dingell submitted the Conference Report to the House

on December 22, 1969,”7 two days after the report had been

submitted to the Senate by Senator Jackson. As part

of his opening remarks, Rep. Dingell introduced into the

record the text of answers to certain questions posed to

him by Rep. Fallon, the Chairman of the Committee on

Public Works. His answer to one of those questions tracked

the language of the “Major Changes” document submitted

to the Senate, indicating no intended change in require-

ments for “environmental control” agencies.” There is no

indication, however, of any debate or acceptance of Rep.

Dingell’s answer by any other member of the House.

5. We now turn to consideration of the import of sub-

sequent congressional actions.

In the Federal Water Pollution Control Act Amendments

of 1972 (FWPCA), Congress provided that NEPA did not

25 H.R. REP. No. 765, 91st Cong., Ist Sess. 7 (1969).

26115 CONG. REc. 40422 (1969).

27 Id. at 40922 (1969).

28 Td. at 40925.

A-17

—e

control certain actions taken by EPA pursuant to their

water pollution control activities.” The question arose in

debate, and is carried on by the parties to this case, as to

whether this was an “exemption”—in which case the as-

sumption would be that prior law generally intended NEPA

to be applicable—or an affirmative declaration that NEPA

did apply to only a limited number of EPA activities speci-

fied in the amendments. Such debate of a later Congress

have been described by the Supreme Court as offering a

hazardous basis for inferring the intent of the earlier Con-

gress; and this is borne out by our analysis.

Senator Muskie pointed during the 1972 debates to the

Muskie-Jackson colloquy as expressing the intent to exempt

EPA, and that the present legislation merely imposed some

affirmative NEPA obligations, so as to narrow the exemp-

tion.** Others, such as Senator Nelson, clearly perceived

the water pollution control amendments as, in fact, exempt-

72 Pub. L. No. 92-500, 86 STAT. 816 (1972). Section 511(c)

(1) provides that NEPA is not applicable to EPA, at least as

to impact statements, except in two cases: where grants are

made for the construction of publicly owned waste treatment

works and where the agency issues new source permits.

*° United States v. Southwestern Cable Co., 392 U.S. 157,

170 (1968).

a 118 CONG. REC. 16877-78 (daily ed., Oct. 4, 1972). Senator

Muskie also referred to an intervening interpretation of the

Council on Environmental Quality that EPA was exempt

from NEPA, 36 Fed. Reg. 7724 (1971) §5(d). This CEQ

interpretation as to EPA, reflected its earlier view that the

Federal Water Quality Administration and the National Air

Pollution Control Board were exempt from NEPA, 35 Fed.

Reg. 7391 (1970) §5(d). The CEQ view was based on its

reading of the legislative history of NEPA, which we find high-

ly ambiguous, and cannot therefore assign this administrative

determination controlling weight. At least part of the defer-

ence assigned to administrative construction of a statute,

concerns the passage of time under which the agency view

A-18

ing EPA from NEPA.” Senator Jackson had doubts by

1972, as to the wisdom of his prior position on a broad

exemption for “environmental control” agencies.

6. The matter resolves itself, as to this issue of exemp-

tion for environmental agencies, that we have items which

are entitled to some weight as indicia of legislative intent,

but cannot be taken as decisive.* It becomes appropriate,

has become an accepted interpretation and in which the

’ Congress has not acted to nullify the agency practice. Defer-

ence may also be accorded an administrative interpretation

to avcid dislocation where agencies have shaped their actions

in accordance with the interpretation, and the court con-

cludes that the interpretation is not inconsistent with dis-

cernible legislative intention. Here, however, the issue of

meaning turns on statutory wording and legislative history,

available in extenso to the court, and not affected by any

considerations of special technical expertise of CEQ, which

might lead to extra deference. See Wilderness Society v. Mor-

ton, supra, Slip Opinion at 40-51, for discussion of deference to

be given administrative construction of statutes. We note that

CEQ, in its latest Proposed Guidelines for Preparation of En-

vironmental Impact Statements, 38 Fed. Reg. 10856, 10865

(1973), has retracted § 5d and its broad claim that EPA was

exempt from all NEPA requirements. We do not reach the

question as to the scope of authority of the Council on Envi-

ronmental Quality to interpret the requirements of the Act.

*? Senator Buckley viewed section 511(c) (1) as a provision

“which grants broad exemptions”, 118 Conc. REC. S16884

(daily ed., Oct. 4, 1972). Senator Nelson stated: “While this

section [511(c)(1)] does specifically authorize some exemp-

tions from the environmental policy act to avoid conflict with

other key environmental aims, the reach of these exemptions

would appear to be narrow.” /d. at 16888.

8 Jd. at 16886-88. ‘

** Compare United States v. Thompson, 147 U.S. App.D.C.

1, 13, 452 F.2d 1333, 1345 (1971), cert. denied, 405 U.S.

998 (1972). Also see Calvert Cliffs, supra, 146 U.S. App.D.C.

at 49-50, 449 F.2d at 1125-26.

A-19

then,* to consider the policies underlying the legisla-

tion.** Here, again, we encounter competing considerations

reflecting the difficulty in resolving the question; but per-

haps they point the way toward a resolution.

The policy thrust toward exemption of the environmen-

tal agency is discernible from these factors, taken in com-

bination: (1) An exemption from NEPA is supportable on

the hasis that this best serves the objective of protecting

the environment which is the purpose of NEPA. (2) This

comes about hecause NEPA operates, in protection of the

environment, hy a broadly applicable measure that only

provides a first step. The goal of protecting the environ-

ment requires more than NEPA provides, i.e. specific as-

signment of duties to protection agencies, in certain areas

identified by Congress as requiring extra protection. (3)

The need in those areas for unusually expeditious decision

would be thwarted by a NEPA impact statement require-

5° We think little guidance to the resolution of this issue

is to be obtained from consideration of section 309 of the

Clean Air Act, 42 U.S.C. § 1857h-7, which petitioners great-

ly relied on during oral argument of this case. That sec-

tion merely requires the Administrator to review and comment

in writing on the impact on the environment of projects of

another federal agency “which contains any matter related

to duties and responsibilities granted [to the Administrator]

pursuant to this chapter.” The contention that this section im-

plies the Administrator must file a draft impact statement

can only be resolved in the framework of the legislative his-

tory which we have already reviewed.

%° See United States v. Sisson, 399 U.S. 267, 297-98 (1970),

where Justice Harlan stated: “The axiom that courts should

endeavor to give statutory language that meaning that nur-

tures the policies underlying legislation is one that guides

us when circumstances not plainly covered by the terms of the

statute are subsumed by the underlying policies to which

Congress was committed.” Also see District of Columbia v.

Orleans, supra, 132 U.S. App.D.C. at 140-41, 406 F.2d at

958-59.

A-20

ment.** (4) An impact statement requirement presents the

danger that opponents of environmental protection would

use the issue of compliance with any impact statement re-

quirement as a tactic of litigation and delay.*

The policies against a NEPA exemption embrace the

endemic question of “Who shall police the police”? As

Senator Jackson stated, “It cannot be assumed that EPA

will always be the good guy.” * Concern was also voiced by

petitioners in this case that EPA might wear blinders when

promulgating standards protecting one resource as to ef-

fects on other resources, as is asserted in this case, that air

standards may increase water pollution. Finally, it is ar-

gued that a NEPA statement’s procedures, though burden-

some, allow for needed input by other federal agencies

and simultaneously open up the decision-making process

to scrutiny by the public.” .

*t Senator Muskie stated, during the debate on the applica-

bility of NEPA statements to EPA, pursuant to the FWPCA

amendments of 1972, 118 Conc. REc. 16878 (daily ed., Oct.

4, 1972): “If the general procedural or substantive reforms

achieved in NEPA .. . were permitted to override, supersede,

broaden, or affect in any way the more specific environmental

mandate of the FWPCA, the administration of the Act would

be seriously impeded and the intent of Congress in passing it

frustrated.’ For problems in complying with both NEPA and

the Clean Air Act’s requirements for speedy action, see note

19 supra

38 Td.

%® Jd. at 16887. Senator Jackson raised this pointed concern:

“Since EPA was formed, they have done an admirabie job and

they are continuing to do so, at least for the present. However,

it cannot be forgotten that EPA is a regulatory agency and

in the past in Washington almost all regulatory agencies have

eventually come under the control of those that they are

charged with regulating,” quoting from the September 22,

1972 National Wildlife Federation Conservation Report.

* Id. (Statement of Senator Jackson). We do not think that

A-21

7. Our consideration of the complex questions raised by

a broad exemption claim, reinforce our conclusion that

these should not be decided in the present case, which may

appropriately be determined upon the logic of a narrow

exemption from NEPA applicable to determinations un-

der section 111 of the Clean Air Act. What is decisive, ul-

timately, is the reality that, section 111 of the Clean Air

Act, properly construed, requires the functional equivalent

of a NEPA impact statement. Thus in this case, as in In-

ternational Harvester v. Ruckelshaus, Slip Opinion No.

t-decision reporting requirements of the Clean Air Act

reg atm pursuant to sections 312(a) and 313 of the Act,

42 U.S.C. § 1857j-1, 2 (1970), offer the same timely and

substantive impact on decision making as would comments on

possible adverse environmental impact during a rule-mak-

ing proceeding. Section 312(a) calls for “Comprehensive

economic cost studies”, and EPA has already issued its first

required report, which includes a discussion of portland

cement. S. Doc. No. 92-67, Annual Report of the Administra-

tor, The Economics of Clean Air, 92d Cong., 2d Sess. 4-36-43

(1972), which is based largely on a study made for the pur-

pose of arriving at the promulgated standard and introduced

into the rule-making record. Exias, J. R. AND J. M. DEMENT,

THE FINANCIAL IMPACT OF AIR POLLUTION CONTROL UPON

THE CEMENT INDUSTRY (1971) (prepared for EPA) (herein-

after FINANCIAL IMPACT). C. R. TabV(f).

Section 313 of the Act requires, inter alia, a report on “the

development of air quality criteria and recommended emis-

sion control requirements.” Two reports have already issued.

S. Doc. 92-66, Annual Report of the Administrator of the En-

vironmental Protection Agency, Progress in the Prevention

and Control of Air Pollution, 92 Cong., 2d Sess. (1972); S.

Doc. 92-11, 92 Cong., Ist Sess. (1971 Annual Report). Both

reports are summary in nature, and neither discusses portland

cement.

It is, therefore, apparent that Congress receives no required

information about the possible adverse environmental impact

of proposed standards for new stationary sources.

A-22

72-1517 (D.C. Cir., February 10, 1973), at 62 n.130,"' we re-

frain from a determination of any broader claim of NEPA

exemption.

Enlarging on our conclusion as to a narrower exemption,

we note that section iil of the Clean Air Act requires a

*' To date, only a few cases have dealt with the application

of NEPA to EPA. In Getty Oil Co. (Eastern Operations) v.

Ruckelshaus, 467 F.2d 349 (3rd Cir. 1972), cert. denied 409

U.S. 1125 (1973), the issue was raised in the context of an

enforcement proceeding by EPA of Delaware’s approved im-

plementation plan under § 110 of the Clean Air Act. Petition-

ers argued that the failure to file an impact statement ren-

dered the compliance order ultra vires. The Third Circuit

held that this objection was improperly raised in an enforce-

ment proceeding, thus not reaching the question, though no-

ting that authority for application was “not persuasive”, cit-

ing Kalur v. Resor, 335 F.Supp. 1 (D.D.C. 1971).

In Kalur, the court held that the Corps of Engineers was re-

quired to issue an impact statement before granting a permit

to dump “refuse” into navigable waters, pursuant to its admin-

istration of the Rivers and Harbors Act of 1899, 33 U.S.C.

§ 407 (1971). This decision was partly responsible for the

FWPCA Amendments of 1972, giving EPA authority - over

the issuance of discharge permits, and exempting issuance

from NEPA. Pub. L. No. 92-500, 86 Stat. 814 (1972). See

statement of Senator Hart, 118 Conc. REc. 16890 (daily ed.

Oct. 4, 1972). Kalur was subsequently dismissed as moot on

appeal to this court by order, following the enactment of the

new legislation, and is of no precedential value.

The case most directly on point is Anaconda Copper Co. v.

Ruckelshaus, 4 E.R.C. 1817 (D. Colo. 1972). That case dealt

with the ability of Anaconda’s copper smelter, which emitted

sulphur oxides, to conform with EPA standards under $110

of the Clean Air Act. After the Governor of the State of

Montana had deleted that portion of the State plan, relating

to these emissions—which affected only Anaconda—EPA pro-

posed its own standards. After administrative hearings, Ana-

conda brought suit in the district court to enjoin promulga-

tion of the rule. The district court held that more than the

A-23

“standard of performance” which reflects “the best system

of emission reduction”, and requires the Administrator to

take “into account the cost of achieving such reduction.”

These criteria require the Administrator to take into ac-

count counter-productive environmental effects of a pro-

posed standard, as well as economic costs to the industry.

The Act thus requires that the Administrator accompany

a proposed standard with a statement of reasons that sets

forth the environmental considerations, pro and con which

have been taken into account as required by the Act, and

minimal due process required in rule-making proceedings

should have been afforded at the EPA hearing since the regula-

tion, in effect, applied only to Anaconda, that there was insuffi-

cient evidence to support the standards, and that EPA should

have teen required to file an impact statement pursuant to

NEPA. Leaving aside the threshold question as to whether the

district court properly took jurisdiction of the proposed rule,

see Environmental Defense Fund et. al. v. Ruckelshaus, Slip

Opinion No. 72-1548 (D.C. Cir., filed March 30, 1973), we

think the thrust of the district court’s concern, which we

share, was the seeming refusal of the EPA to take into ac-

count possible adverse impact on water quality which might

arise from its air standards. This problem was “not studied

or considered by the Administrator” according to the findings

of fact of the district court. This concern could have been re-

flected in a requirement that information be developed on this

point in conjunction with the hearings on the standard, but

instead the court chose to enjoin the rule on the basis of the

failure to file an impact statement. We think the examination

of support for this holding was myopic, and rested heavily

on the logic of the words “all federal agencies” which, as we

have indicated infra, text at notes 12, 13, is only itself de-

pendent on the non-obvious premise that EPA is a “federal

agency” within the meaning of NEPA.

See also Appalachian Power Co. v. EPA, 5 ERC 1222 (4th

Cir. 1973) and Duquesne Light Co. v. EPA, Slip Opinion No.

72-1542 (3rd Cir., filed April 2, 1973) holding NEPA inap-

plicable to actions of Administrator in approving state imple-

mentation plan under § 110 of the Clean Air Act.

A-24

fulfillment of this requirement is reviewable directly by

this Court.

Although the rule-making process may not import the

complete advantages of the structured determinations of

NEPA into the decision-making of EPA, it does, in our

view strike a workable balance between some of the ad-

vantages and disadvantages of full application of NEPA.

Without the problems of a NEPA delay conflicting with the

constraints of the Clean Air Act, the ability of other agen-

cies to make submissions to EPA concerning proposed

rules, provides a channel for informed decision-making.

These comments will he part of the record in the rule-

making proceeding that EPA must take into account.**

pa?

EPA’s proposed rule, and reasons therefor. are in-

** One of the major reasons Senator Muskie offered for not

generally applying NEPA to EPA water pollution control ac-

tivity, during the FWPCA amendments debate of 1972, was

that the Federal Water Pollution Control Act “specifically iden-

tifies factors to be considered by the Administrator”. 118 Conc.

REC. 16878 (daily ed. Oct. 4, 1972). The standard of the “best

system ’ is comprehensive, and we cannot imagine that Con-

gress intended that “best” could apply to a system which did

more damage to water than it prevented to air.

* This approach avoids the straitjacket that NEPA would

impose on the time requirements mandated by the Clean Air

Act. EPA would have 120 days to issue, as part of its reasons,

its consideration of possible adverse environmental effects

along with its proposed standard. This need not be the “de-

tailed” statement required by NEPA. We would expect, how-

ever, that all documents which supported its conclusion on

this question be made available for comment. Standard CEQ

guidelines, or those of the Environmental Protection Agency,

for circulation of impact statements could be adapted to pro-

vide for circulation to other federal agencies of the statement

of reasons and supporting documents. Time allowed for com-

ment would be made to depend on the strict time require-

ments of the section 111 proceeding.

A-25

evitably an alert to environmental issues. The EPA’s pro-

posed rule and reasons may omit reference to adverse en-

vironmental consequences that another agency might dis-

cern, but a draft impact statement may likewise be marred

by omissions that another agency identifies. To the extent

that EPA is aware of significant adverse environmental

consequences of its proposal, good faith requires appropri-

ate reference in its reasons for the proposal and its under-

lying balancing analysis. While there is more flexibility

than NEPA’s requirement of an impact statement, this

court has stated, and EPA has recognized, that an EPA

statement of reasons for standards and criteria require a

fuller presentation than the minimum rule-making require-

ment of the Administrative Procedure Act. A ennecott

Copper v. EPA, supra.

Similarly, EPA’s proposed rule, and reasons therefor,

are an alert to the public and the Congress who will have

the opportunity to comment as to possible adverse environ-

mental effects of the proposed rule, during the pendency of

the rule making proceeding. And finally, the courts will be

able to scrutinize the analysis of environmental considera-

tions, in assuring that a reasoned decision has been

reached.

The court’s review guards against arbitrary disregard

of environmental factors by EPA without significantly in-

creasing the administrative burden on the agency. And

since all environmental questions will have to be consid-

ered within the same review proceeding as other chal-

lenges to the Validity of standards, the potential for incre-

mental litigation delay is minimized.

44 The combination of reasons relating to possible adverse

environmental impact with those justifying the standards

generally, directs the attention of the reviewing court to the

“reasoned basis” which supports the rule as a whole, rather

than permiting challenges based on particular per se viola-

tions of NEPA.

A-26

As to the standard here at issue, petitioners raise pos-

sible adverse environmental impact questions in their

briefs. But they have not indicated that these problems

were brought to the attention of the agency. Since we are

remanding the case for other reasons subsequently dis-

cussed, EPA should respond to these questions on remand.

We add, finally, a word of clarification: we establish a

narrow exemption from NEPA, for EPA determinations

under section 111 of the Clean Air Act. NEPA must be

accorded full vitality as to non-environmental agencies, as

established by our outstanding precedents.*

III. Economic Costs

The objecting companies contend that the Administrator

has not complied with the mandate of §111 of the Act,

which requires him to “[take] into account the cost” of

achieving the emission reductions he prescribes, a statu-

tory provision that clearly refers to the possible economic

impact of the promulgated standards.*’ The nature of

** Petitioner Portland Cement Association asserts in its

Brief at 34:

Increased electricity needed to operate precipitators with

greater collection capacity can create increased air pol-

lution , by the source of the electricity. Also, stricter

standards will result in the collection of more particu-

lates. These must be disposed of somehow.

The alkaline content of cement must be limited and,

since much of the collected particulate is substantially

alkaline, it cannot be used in production but must be

discarded. This waste is usually combined with water

and may cause alkaline pollution through direct dis-

charge or the seepage of percolating waters into streams

and rivers. Currently Petitioner is discussing with E.P.A.

a study to determine what can be done to reduce or avoid

this result.

*6 Calvert Cliffs, supra.

‘7 An amendment which would have deleted consideration

A-27

these cost and economic contentions is such that it is pos-

sible, and we find it convenient, to consider them now, be-

fore describing the industry’s processes, which will be pre-

sented below in the consideration of other issues.

The Administrator found in the Background Document

that, for a new wet-process plant with a capacity of 2.5

million barrels per year, the total investment for all in-

stalled air pollution control equipment will represent ap-

proximately 12 percent of the investment for the total fa-

cility. He also found that “{a]nnual operating costs for

the control equipment will be approximately 7 percent of

the total plant operating costs if a baghouse is used for

the kiln, and 5 percent if an electrostatic precipitator is

used.”

Petitioners argue that this analysis is not enough—that

the Administrator is required to prepare a quantified cost-

henefit analysis, showing the benefit to ambient air condi-

tions as measured against the cost of the pollution devices.

However desirable in the abstract, such a requirement

would conflict with the specific time constraints imposed on

the Administrator. The difficulty, if not impossibility, of

quantifying the benefit to ambient air conditions,** further

militates against the imposition of such an imperative on

of economic impact was proposed by Congressman Ryan of

New York, who stated:

I believe that the threat to our environment is so great

that, as a matter of public policy, industry should be re-

quired to use the most advanced technology regardless of

pee 1 or not a particular industry finds it economically

easible.

This amendment was rejected on voice vote. 116 CONG. REC.

19242-43 (1970).

#8 JA at 50.

49 See Note, Cost-Benefit Analysis and the National Environ-

mental Policy Act of 1969, 24 STANF. L. REv. 1092, 1098ff

(1972), and authorities cited therein.

A-28

the agency. Such studies should be considered by the Ad-

ministrator, if adduced in comments, but we do not inject

them as a necessary condition of action.

The EPA contention that economic costs to the industry

have been taken into account, derives substantial support

from a study prepared for EPA, which was made part of

the rule-making record and referred to in the Background

Vocument, entitied “The Financial Impact of Air Pollution

Control Upon the Cement Industry”.® It concluded that

the additional costs of control equipment could be passed

on without substantially affecting competition with con-

struction substitutes such as steel, asphalt and aluminum,

because “{d]emand for cement, derived for the most part

from demand for public and private construction, is not

highly elastic with regard to price and would not be very

sensitive to small price changes.” The study did note that

individual mills may be closed in the years ahead, but ob-

served that these plants were obsolete both from a cost

and pollution point of view. Petitioners have not challenged

these findings here. The Administrator has obviously given

some consideration to economic costs.

2. Two questions related to economic considerations re-

main: (1) the possible effect of the standards on the fu-

ture building of wet-process plants generally, and the use

of electrostatic precipitators as a control device; and (2)

possible unfair discrimination between standards set for

cement plants, and those set for power plants and inciner-

ators.

As appears from our examination of technological feas-

ibility, in Part IV of this opinion, a substantial question

arises as to whether either wet process plants, or any

process using electrostatic precipitators, will be able to

achieve mandated pollution control. The HEW Atmospheric

50 FINANCIAL IMPACT, supra note 40, at 42.

Emissions Study, relied on by EPA, reported that as of

1967 there were 110 wet process and 69 dry process plants

in the United States, and that they were “expected to in-

crease at a comparable rate.” *' As to exclusion of electro-

static precipitators, the record shows that they are a

cheaper technology than fabric filters. Since remand is re-

quired for other reasons, as appear from Part IV, we con-

fine our analysis at this juncture to a declaration that on

remand the Administrator should consider, as a matter of

economic costs, contentions and presentations submitting

that the standard as adopted unduly precludes supply of

cement, including whether it is unduly preclusive as to cer-

tain qualities, areas, or low-cost supplies.

3. Petitioners also challenge the cement standards as un-

fair in light of lower standards mandated for fossil-fuel-

fired steam generating power plants and incinerators.*

They claim that while the cement standard, as expressed in

grains of particulates allowed per standard cubic foot of

gas (g/scf), requires a reduction to .03," power plants are

permitted to reach .12 and incinerators to be at .10. Also

opacity standards differ, with no opacity standard set for

°! KREICHELT, T. E., KEMNITZ, D. A., AND CUuFFE, S. T., AT-

MOSPHERIC EMISSIONS FROM THE MANUFACTURE OF PORTLAND

CEMENT, U.S. Dept. HEW, PHS, National Center for Air Pol-

lution Control, PHS Publication No. 999-AP-17 (1967) (here-

inafter ATMOSPHERIC EMISSIONS), at 6.

** These standards were proposed jointly with those of

portland cement, 36 Fed. Reg. 15704 (1971), and were adopt-

ed at the same time, 36 Fed. Reg. 24876 (1971). The stand-

ards for fossil fuel steam generators are challenged in appeal

4 — in Appalachian Power Co. v. EPA, Docket No.

5* The promulgated standards for cement, expressed in par-

ticulate levels measured against pounds per ton of feed to the

kiln, are convertible, for purposes of comparison, into grains

of particulates per standard cubic foot of gas.

A-30

incinerators, and with a 20% requirement for power plants

(with 40% opacity permitted for not more than 2 minutes

in any hour).

First, we identify petitioner’s mistake in attaching any

weight to a comparison of the proposed standards, whereas

the standards as finally adopted permitted pollution stand-

ards of only .08 for incinerators and .10 for power plants,

compared with .03 for cement plants.

EPA, in response to comments from petitioners on this

issue of discrepancy, stated in its supplemental statement

in March 1972: “The difference between the particulate

standard for cement plants and those for steam generators

and incinerators is attributable to the superior technology

available therefor (that is, fabric filter technology has not

been applied to coal-fired steam generators or incinera-

tors).” *

This statement seems to be supported by the Background

Document.” It suggests that there has indeed been a dif-

5437 Fed. Reg. 5767 (1972). We also note that EPA dis-

agreed with petitioners as to the relevant numbers to compare.

EPA stated that the power plant standard was “0.06 grains

per standard cubic foot at normal excess air rates”, and that

the incinerator standard, while .08 “corrected to 12 percent

carbon dioxide”, was .05 “[u]ncorrected, at normal conditions

of 7.5 percent carbon dioxide.”

°° The August 1971 Background Document was used to

support the incinerator and power plant standards, as well as

cement standards. The statement is subject to the amplifica-

tion (JA 29) that fabric filters “are scheduled to be installed”

at a power station, though “no full scale fabric filters have

been demonstrated on coal! fired steam generators.” As to mun-

nicipal incinerators, the Document refers to a “small Swiss

unit” with a fabric filter tested with European sampling pro-

cedures, to lower emission in a “small pilot installation” op-

erated by Pasadena in 1960, and to incinerators (over 50

tons per day) equipped with baghouses that “will be put into

service in late 1971 in the United States and Switzerland.”

A-31

ference in the extent of application of fabric filter tech-

nology to cement plants, on the one hand, and power plants

and incinerators on the other, although we are not in-

formed by the Administrator as to what characteristics of

the concerned industries might account for such differences.

This March 1972 statement of the Administrator was

made in response to comments of the cement producers,

and was not offered as justification for the cement stand-

ards, which were based solely on emission control available

to that industry. Petitioners did not identify this part of

the March 1972 supplemental statement as troublesome

when they sought a remand from this court on other points.

However, this is more a matter of atmosphere than disposi-

tive ruling, for if the producers now gave significant indi-

cation that they had been dealt with unfairly or invalidly

we could doubtless find a procedural path for consideration.

The core of our response to petitioners is that the Ad-

ministrator is not required to present affirmative justi-

fications for different standards in different industries.

Inter-industry comparisons of this kind are not generally

required, or even productive; and they were not contem-

plated by Congress in this Act. The essential question is

whether the mandated standards can be met by a partic-

ular industry for which they are set, and this can typically

be decided on the basis of information concerning that in-

dustry alone. This is not to say that evidence collected

about the functioning of emission devices in one industry

may not have implications for another. Certainly such in-

formation may bear on technological capability. But there

is no requirement of uniformity of specific standards for

(JA at 40, 41). If the same technology is now available and in

use for incinerators, steam power plants and cement plants,

the Administrator on remand may wish to offer some further

explanation of the difference in standards set simultaneously

for the three industries.

A-32

all industries. The Administrator applied the same general

approach, of ascertaining for each industry what was feas-

ible in that industry. It would be unmanageable if, in re-

viewing the cement standards, the court should have to

consider whether or not there was a mistake in the incinera-

tor standard, with all the differences in parties, practice,

industry procedures, and record for decision. Of course,

the standard for another industry can be attacked, as too

generous, and hence arbitrary or unsupported on the rec-

ord, by those concerned with excessive pollution by that

industry. There is, therefore, an avenue of judicial review

and correction if the agency does not proceed in good faith

to implement its general approach. But this is different

from the supposition that a claim to the same specific treat-

ment can be advanced by one who is in neither the same

nor a competitive industry.

There is, of course, a significant and proper scope for

inter-industry comparison in the case of industries pro-

ducing substitute or alternative products. This bears on

the issue of “economic cost”. But this cemparison was

utilized in arriving at the agency decision, and no conten-

tion is raised in this court that such competitive-industry

impact was either ignored or assessed invalidly.

IV. Acutevasitity or Emission Stanparp

Section 111 of the Act requires “the degree of emission

limitation achievable [which] .. . the Administrator de-

termines has been adequately demonstrated.” Petitioners

contend that the promulgated standard for new stationary

sources has not been “adequately demonstrated”, raising

issues as to the interpretation to be given to this require-

ment, the procedures followed by the agency in arriving

at its standard, and the scientific evidence upon which it

was formulated. An examination of these questions re-

quires a brief description of the process used to manufac-

A-33

ture portland cement and the devices presently employed

to control emissions.

A. Present types of Emission Control in the Manufacture

of Portland Cement

In the manufacturing process for portland cement, the

principal ingredients, limestone and clay, are combined,

after having been reduced to a powdery fineness, to make

a substance known as raw feed. The powdered limestone

and clay are mixed by either the wet process or the dry

process. In the wet process, water is added to the limestone

and clay to make a slurry, which is then introduced into a

kiln. In the dry process, the two substances are mixed me-

chanically and by use of air before the mix is introduced

into a kiln.

Raw feed is introduced to the kiln at ambient air tem-

perature and is then heated to a temperature of about

2700° Fahrenheit, produced within the kiln by the use of

various fuels. The emission standards under challenge here

relate solely to the control of particulate matter produced

by the kiln operation.

56 The following description of the manufacturing process

is based on ATMOSPHERIC EMISSIONS, supra note 51, and the

Affidavit of Ralph H. Striker, a professional engineer, sworn

on June 9, 1972. C.R., Tab IX, at 1. Striker described his

background as follows:

Since 1938 I have been engaged in various process phases

of the cement industry; my professional specialty is the

chemistry of portland cement manufacture, including

process design and related instrumentation contro!. With-

in the scope of my specialty is the chemical processes oc-

curring in the manufacture of portland cement and emis-

sions and gas emanating therefrom. Presently I am Vice

President of Bendy Engineering Company, St. Louis,

Missouri, where I have participated in the design from a

basic process standpoint of not less than ten kilns in the

last ten years.

A-34

The kiln operation involves the chemical process known

as calcining limestone; carbon dioxide is driven from the

limestone, converting calcium carbonate (CaCO;) into ecal-

cium oxide (CaO), (CaCO; yields CO. + CaO). The calcium

oxide later combines with the clay to form a substance

known as “clinker”, the basic component of cement. The

calcination process produces gases and dust as by-prod-

ucts. The particulate matter is suspended in the hot ex-

haust gas and the various types of emission control de-

vices remove this matter from the gas, before it is emitted

into the atmosphere through a stack.

The two types of equipment principally used in remov-

ing particulate matter from the exhaust gas are electro-

staiic precipitators and glass fabric bags, impregnated

with graphite, located in a “bag house.” When the precipi-

tator is used, dust particles are charged and pass through

an electrical field of the opposite charge, thus causing the

dust to be precipitated out of the exhaust gas and there-

after collected by the device. When glass fabric bags are

used, the exhaust gas is coeled, sometimes by a water

spray, so that the bags will operate without damage from

excessive heat. The bag filters out the particulate dust,

though sometimes the coolant combines with the dust to

form a gummy substance as residue in the bags, which

must he continuously cleaned out in order to avoid impair-

ing the permeability of the bag.

It is the ability of control devices such as precipitators

and bags to separate out a sufficient amount of particulate

from the exhaust—in accord with the proposed standards

—which is under challenge by the manufacturers. The stand-

ard requires that the particulate matter emitted from port-

land cement plants not be “in excess of 0.30 lb. per ton of

feed to the kiln . .. maximum 2-hour average”.

B. Technology Available For New Plants

We begin by rejecting the suggestion of the cement

A256

manufacturers that the Act’s requirement that emission lim-

itations be “adequately demonstrated” necessarily implies

that any cement plant now in existence be able to meet

the proposed standards. Section 111 looks toward what

may fairly be projected for the regulated future, rather

than the state of the art at present, since it is addressed

to standards for new plants—old stationary source pollu-

tion being controlled through other regulatory authority.”

It is the “achievability” of the proposed standard that is in

issue.

The language in section 111 was the result of a Confer-

ence Committee compromise, and did not incorporate the

language of either the House or Senate bills.** The House

hill wouid have provided that “the Secretary .. . [give]

appropriate consideration to technological and economic

feasibility”, while the Senate would have required that

standards reflect “the greatest degree of emission control

which the Secretary determines to be achievable through

application of the latest available control technology, proc-

esses, operating methods, or other alternatives.”

The Senate Report made clear that it did not intend that

the technology “must be in actual routine use some-

** Under §§ 109-110, 42 U.S.C. § 1857c-4, 5, of the Clean

Air Act the Administrator sets national primary and sec-

ondary ambient air standards relating to required air quality

for each air pollutant. States must draw up a plan to comply

with such standards, which in turn must be approved by EPA.

These ambient air standards relate to pollution from any

source, whether it be old or new, stationary or moving, but

specific new or modified stationary sources are only regulated

directly under § 111.

** The Conference Committee considered S.4358, 91st Cong.,

2d Sess., 113 (1970) and H.R. 17255, 91st Cong., 2d Sess.

sec. 112 (1970). The Report of the Conference does not dis-

cuss the language finally adopted, H. Rep. No. 91-1783, 91st

Cong., 2d Sess. 9, 45 (1970).

A-36

where.” The essential question was rather whether the

technology would be available for installation in new

plants. The House Report also refers to “available” tech-

nology. Its caution that “[i]n order to be considered

‘available’ the technology may not be one which constitutes

a purely theoretical or experimental means of preventing

or controlling air pollution” ® merely reflects the final lang-

uage adopted, that it must be “adequately demonstrated”

that there will be “available technology”.

The resultant standard is analogous to the one examined

in International Harvester, supra. The Administrator may

make a projection based on existing technology, though that

projection is subject to the restraints of reasonableness and

cannot be based on “crystal ball” inquiry. Slip Opinion at

18. As there, the question of availability is partially de-

pendent on “lead time”, the time in which the technology

will have to be available. Since the standards here put into

effect will control new plants immediately, as opposed to

one or two years in the future, the latitude of projection

is correspondingly narrowed. If actual tests are not relied

on, but instead a prediction is made, “its validity as applied

to this case rests on the reliability of [the] prediction and

the nature of [the] assumptions.” International Harvester

at 45.

C. Right to Comment on EPA Methodology

We find a critical defect in the decision-making process in

arriving at the standard under review in the initial inability

of petitioners to obtain—in timely fashion—the test results

and procedures used on existing plants which formed a par-

tial basis for the emission control level adopted, and in the

subsequent seeming refusal of the agency to respond to what

%° S. REP. No. 9-1196, 91st Cong., 2d Sess. 16 (1970).

* H. REP. No. 91-1146, 91st Cong., 2d Sess. 10 (1970).

A-37

seem to be legitimate problems with the methodology of

these tests.

1. Unavailability of Test Methodology

The regulations under review were first proposed on

August 2 1971 and then adopted on December 16, 1971.

Both the proposed and adopted rule cited certain portland

cement testing as forming a basis for the standards. In the

statements accompanying the proposed rule, the Adminis-

trator stated:

The standards of performance set forth herein are

booed on stationary source testing conducted by the

Environmental Protection Agency and/or contrac-

tors....

On December 16, this test reliance was reiterated : ®

tion-

The standards of performance are based on sta

ary source testing conducted by the Environmental

Protection Agency and/or contractors ....

As indicated in the earlier statement of the case, the

proposed standard was accompanied by a Background

Document which disclosed some information about the

tests, but did not identify the location or methodology used

in the one successful test conducted on a dry-process kiln.

Further indication was given to petitioners that the Admin-

istrator was relying on the tests referred to in the Back-

ground Document, when the statement of reasons accom-

panying the adopted standard were expanded in mid-March

of 1972, in the supplemental statement filed while this case

was pending on appeal to our court. The Administrator

there stated: ®

The proposed standard was based principally on par-

6! 36 Fed. Reg. 15704 (1971).

62 36 Fed. Reg. 24876 (1971).

63 37 Fed. Reg. 5767 (1972).

A-38

+ aga levels achieved at a kiln controlled by a fabric

ter.

For the first time, however, another set of tests was re-

ferred to, as follows:

After proposal [of the regulation], but prior to prom-

ulgation a second kiln controlled by a fabric filter

was tested and found to have particulate emissions in

excess of the proposed standard. However, based on

the revised particulate test method, the second installa-

tion showed particulate emissions to be less than 0.3

pound per ton of kiln feed.

These two testing programs were referred to in the March

1972 supplemental statement, but the details, aside from

a summary of test results, were not made available to pe-

titioners until mid-April 1972. At that time, it was revealed

that the first set of tests was conducted April 29-30, 1971,

by a contractor for EPA, at the Dragon Cement Plant, a

dry process plant in Northampton, Pennsylvania, and that

the second set was performed at the Oregon Portland Ce-

ment plant, at Lake Oswego, Oregon, a wet process plant,

on October 7 and 8, 1971. The full disclosure of the method-

ology followed in these tests raised certain problems, in

the view of petitioners, on which they had not yet had the

opportunity to comment. Their original comments in the

period between the proposal and promulgation of the regu-

lation could only respond to the brief summary of the re-

sults of the tests that had been disclosed at that time.

After intervenor Northwestern States Portland Cement

Company received the detailed test information in mid-

April 1972, it submitted the test data, for analysis of relia-

bility and accuracy, to Ralph H. Striker, an engineer exper-

ienced in the design of emission control systems“ for

portland cement plants. He concluded that the first series

of tests run at the Dragon Cement Company were “grossly

* See note 56 supra.

A-39

erroneous” due to inaccurate sampling techniques to mea-

sure particulate matter.“ Northwestern States then moved

this Court to remand the record to EPA so that the agency

might consider the additional comments on the tests. This

motion was granted on October 31, 1972.% This action by

the Court was based on “the flexibility and capacity for re-

examination that is rooted in the administrative process”.

International Harvester, Slip Op. at 25. We considered this

opportunity to make further comments necessary to sound

execution of our judicial review function.”

We are aware that EPA was required to issue its stand-

ards within 90 days of the issuance of the proposed regula-

tion, and that this time might not have sufficed to make an

adequate compilation of the data from the initial tests, or to

fully describe the methodology employed. This was more

likely as to the second tests, which were begun during the

pendency of the proposed regulation. In contrast, more than

three months intervened between the conduct of the first

tests and the issuance of the proposed regulation. Even as

to the second tests however, as we indicated in /nterna-

tional Harvester, which involved the issue of the availabil-

ity of the Technical Appendix upon which the auto emission

suspension decision was based, the fact that the agency

chose to perform additional tests and release the results

indicates that it did not believe possible agency considera-

tion was frozen. Slip opin. at 26. It is not consonant with

65 C.R. Tab IX, Striker Affidavit at 2.

*6 A motion of similar effect was granted as to petitioner-

intervenor Medusa Corp. to make additional presentations to

the agency, on June 23, 1972.

*? Written comments were submitted as requested, and as

required by the APA § 4(c), 5 U.S.C. §553(c). Obviously a

prerequisite to the ability to make meaningful comment is to

know the basis upon which the rule is proposed.

A-40

the purpose of a rule-making proceeding to promulgate

rules on the basis of inadequate data, or on data that,

critical degree, is known only to the agency.

2. The EPA response to the Remand

In this case, EPA made no written submission as to the

additional comments made by petitioners. Our remand

was ordered, as to Northwestern, on October 31, 1972. All

that EPA did was to comply with the mandate that the

analysis of Mr. Striker be added to the certified record. It

may be that EPA considers Mr. Striker’s analysis invalid—

but we have no way of knowing this. As the record stands,

all we have is Mr. Striker’s repudiation of the test data,

without response. The purpose of our prior remand can-

not be realized unless we hear EPA’s response to his

comments, and the record must be remanded again, for that

purpose.

We are not establishing any broad principle that EPA

must respond to every comment made by. manufacturers

on the validity of its standards or the methodology and

scientific basis for their formulation. In the case of the

Striker presentation, however, our prior remand reflects

this court’s view of the significance, or at least potential

significance, of this presentation. If this were a private

lawsuit, we might reverse the order under appeal for fail-

ure of its proponent to meet the burden of refutation or

explanation. Since this is a matter involving the public

interest, in which the court and agency are in a kind of

partnership relationship for the purpose of effectuating

the legislative mandate, we remand. This agency, particu-

larly when its decisions can literally mean survival of per-

sons or property, has a continuing duty to take a “hard

look” at the problems involved in its regulatory task, and

that includes an obligation to comment on matters identi-

fied as potentially significant by the court order remanding

A-41

for further presentation. Manufacturers’ comments must

be significant enough to step over a threshold requirement

of materiality before any lack of agency response or con-

sideration becomes of concern. The comment cannot merely

state that a particular mistake was made in a sampling

operation; it must show why the mistake was of possible

significance in the results of the test. This was certainly

done by Mr. Striker, who on the basis of some extensive

mathematical calculations stated:

It is m rsonal opinion that the particulate matter

ph 2 a .202 nnd in test 1 per ton of kiln feed

reported in the summary sheet on Page vii and again

on Page 6 of Exhibit 4-A is grossly erroneous, and

that the correct emission of particulate matter 1s in

the neighborhood of .404 pounds per ton of kiln feed.

In order that rule-making proceedings to determine

standards be conducted in orderly fashion, information

should generally be disclosed as to the basis of a proposed

rule at the time of issuance. If this is not feasible, as in case

of statutory time constraints, information that is material

to the subject at hand should be disclosed as it becomes

available, and comments received, even though subsequent

to issuance of the rule—with court authorization, where

necessary. This is not a requirement that the rule be

suspended, though the court may consider an application

for stay based on probability of success and furtherance

of the public interest. Virginia Petroleum Jobbers v.

F.P.C., 104 U.S.App.D.C. 106, 259 F.2d 921 (1958).

Conversely, challenges to standards must be limited to

points made by petitioners in agency proceedings. To

entertain comments made for the first time before this

court would be destructive of a meaningful administrative

process.

There are claims made in this court which were not pre-

sented to EPA. For example, petitioner Portland Cement

A-42

Association states in its brief,” in regard to the first set of

tests at the Dragon Cement Plant:

Mistakes and conditions occurred which prevented the

test from using observed, measured values. Encrusted

solids were thought to cause a high reading in Run 1

so lower readings from cther tests were substituted.

The area of a duct was calculated rather than

measured due to the presence of deposits. And liquid

from Run 3 was erroneously poured into a beaker

from Run 2.

From the reference supplied in petitioner’s brief, we dis-

cern that this criticism of testing procedure was based upon

data released on the testing after the 45 day period of com-

ment had passed, and so there was no opportunity at that

time to bring this sampling error to the attention of the

agency. However, our October 1972 remand gave EPA

an opportunity, in its updating and ongoing reexamination,

to make a specific comment on petitioner’s objection to the

Dragon plant test. Instead, only the comment of Mr.

Striker was presented.

Ordinarily, we would not consider comments not pre-

sented to EPA. But here there was belated disclosure by

EPA of back-up testing, and remand will be necessary con-

cerning the Striker criticism. Accordingly, we will pro-

vide that EPA should, on remand, consider the contentions

presented in briefs to this court, though not previously

raised, unless EPA explains why they are not material. It

will be for EPA, on the remand, to examine the relevancy

and import of petitioners’ criticisms of the Administrator’s

methodology.

3. Analysts of Support for Standards

A troublesome aspect of this case is the identification

of what, in fact, formed the basis for the standards promul-

gated by EPA—a question that must be probed prior

** Portland Cement Association Brief at 17-18.

to consideration of whether the basis or bases for the

standards is reliable. Nominally, there would seem to

be three major bases for the rule and its standards: (1)

the tests run on the dry-process Dragon Cement Plant, (2)

the tests run on the wet-process Oregon Cement Plant, and

(3) literature sources. The two tests were discussed by

EPA in the supplemental statement issued subsequent to

the issuance of the rule. As to literature sources, the Back-

ground Document issued with the proposed rule identifies

as “a principal-literature source” a government study, un-

dertaken under the auspices of HEW in 1967, entitled “At-

mospheriec Emissions from the Manufacture of Portland

Cement”.

In the briefs to this Court, EPA counsel disclaim reli-

ance on these three sources, despite statements directly

to the contrary accompanying the proposed and promul-

gated rule, and the supplementary statement of reasons

issued on the basis of Kennecott.

In regard to the tests, the EPA brief states: ®

Since the tests conducted by EPA were used, along

with other items, to assist in determining what emis-

sion levels were being achieved by properly maintained

and operated control equipment, and were not used as

the primary basis for the cement standards, petition-

er’s criticisms of such tests and testing procedures

are irrelevant. (emphasis supplied)

The brief further states that the HEW study “was not re-

lied upon to support the achievability of the cement stand-

ards”.”°

Counsel on appeal cannot substitute new reasons for those

offered by the agency.” Certainly, counsel cannot disclaim

6° Brief at 21-22.

70 Td. at 19.

7 Burlington Truck Lines v. United States, 371 U.S. 156,

A-44

reliance on reasons offered by the agency in its statement

of reasons, except in the sense that errors may be asserted

to fall within the limited “harmless error” doctrine appli-

cable to administrative agencies.

We turn now to the specific technical problems raised by

the cement manufacturers.

a. Dragon Cement Plant tests 7

Two kilns were tested by the EPA contractor at the

Dragon Cement Plant.” A test of a dry-process kiln con-

trolled with a baghouse is used for support of the standard

since testing “showed particulate ernissions of 0.20 pound

per ton of feed, which is below the proposed standard.” ™

This particular plant was selected for testing on the basis

that it was reportedly one of the 12 best controlled plants in

the United States.

168-9 (1962) ; International Harvester, supra, slip op. at 25;

Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 411,

379 F.2d 453, 465 (1967).

72 A description and analysis of these tests is in the Certi-

fied Record, Tab V(i). Emission Testing Report, ETB Test

Number 71-MM-05. Emissions from Dry Process Cement Kiln

at Dragon Cement Company, Northampton, Pennsylvania.

Environmental Protection Agency, Office of Air Programs.

™’ The Background Document indicates that two wet proc-

ess kilns controlled by electrostatic precipitators were unable

to meet the proposed standards, and they are not relied upon

here. We are not supplied with an identification of the plant (s)

where these tests were performed. The Background Document

states that four kilns were tested but that “results of only

three tests were available at the time the standards were

proposed” and also discloses that the missing test was per-

formed upon a dry process kiln. JA at 47-48. We are uncertain

whether this fourth kiln was one of the two tested at the

Dragon Plant or was located at still another plant.

74 Jd. at 48.

A-45

The first point raised by petitioner, and included in the

comments by cement manufacturers presented to the agency

on its proposed standard,” was that a single test offered a

weak basis for inferring that all new cement plants would

he able to meet the proposed standards. As we stated in /n-

ternational Harvester, supra, slip opin. at 55, “It would

... Seem incumbent upon the Administrator to estimate the

possible degree of error inherent in his prediction.” The sig-

nificance of the lack of any indication of statistical relia-

bility was underscored by T. E. Kreichelt, the author of the

HEW study relied upon by the Administrator, in a letter,

by way of comment, on the proposed standard.” He stated

that “the emission limit was based on one (1) test, i.e. the

fabric filter test... . I do not believe that the emission limits

should be selected on only four tests, much less one test.”

Mr. Kreichelt raised a second and related point addressed

to the reliability of a prediction based on a successful dry-

process plant, for a prediction that wet-process plants would

be able to also meet the standard. He stated in this re-

gard:™

Another outcome of basing emission limits on insuffi-

cient data is that the limit may represent only part of

a given industrial classification. For example, is 0.30

lb/ton of feed attainable only for dry-process kilns?

Or is it also attainable for wet-process kilns? Prob-

ably both, but there is not even one test to substanti-

ate the limit for wet-process kilns. For each variation

of each process of each source classification, the num-

ber of tests required should be sufficient (say, three

7 See Comments in C.R. Tab VIII, items 10 (Portland Ce-

ment Association), 14 (General Portland Cement Company),

20 (Ideal Basic Industries, Inc.).

76 Letter of Thomas E. Kreichelt, C.R. Tab VIII, item 27, at

7 Id.

A-46

tests within the limit) to result in statistically sound

limits.

We are not here considering a regulation that was is-

sued in the contemplation that all new cement plants will be

dry-process, and controlled by baghouses on the theory

that this is the “best system” of emission control. Pos-

sibly such an approach would be feasible, but in any event

it would require underlying reasons, by EPA, to terminate

the process which the HEW had identified as major now

and in future projection.”

A second objection is to the techniques used by the EPA

to measure emissions from the Dragon plant.

These “sampling” techniques assume particular impor-

tance if they deviate from procedures, outlined by regula-

tion, for ascertaining compliance with prescribed stand-

ards. Although this difference could be eliminated—as the

Administrator attempted to do in International Harvester

—by rewriting “sampling” techniques, rather than lower-

ing standards, a significant difference between techniques

used by the agency in arriving at standards, and require-

ments presently prescribed for determining compliance

with standards, raises serious questions about the validity

of the standard.”

™ See ATMOSPHERIC EMISSIONS, supra note 51, at 6-7.

7 “Sampling” techniques were modified by EPA between

the date of the proposed rule and the promulgated rule in this

case. The EPA stated in adopting the rule here under review,

36 Fed. Reg. 24876 (1971), at 41:

Particulate matter performance testing procedures have

been revised to eliminate the requirement for impinges

in the sampling train. Compliance will be based only on

material collected in the dry filter and the probe preced-

ing the filter.

We speak here of inconsistencies between the revised stand-

ards and the tests performed on which the standards were

based.

A-47

The cement manufacturers point, in this regard, to the

absence of continuous sampling in the EPA data, since the

“longest elapsed time of any sampling episode was 30

minutes”, whereas under the regulations promulgated,

conformity is to be measured on the basis of maximum

2-hour averages.®' It is incumbent on the Administrator to

explain the discrepancy.

The second point raises the question, on the basis of

a handwritten note made by the EPA contractor, as to

whether the tested plant was operating at maximum per-

formance during testing. The contractor had noted, “Bag-

house is undersize and production is held back due to

this.” *? Compliance tests under the regulation require,

however, that “All performance tests shall be conducted

while the affected facility is operating at or above the

maximum production rate... .” ™

Thirdly, petitioner contends that mistakes made in the

measurement process prevented the test from using ob-

served, measured values. As previously noted, encrusted

solids can collect in the bag, and must be constantly cleaned

out if the baghouses are to operate with efficiency. In one

of the runs conducted, the presence of solids in a duct lead-

ing to the stack were thought to cause a high reading, so

lower readings from other test runs were submitted. On

another run, the liquid, which was to be the basis for a

“ This claim is made on the basis of inspection of the full

report of the EPA contractor. See C.R. Tab V(i), App. E, at

41.

“' § 60.62 (a) (1), 36 Fed. Reg. 24876 (1971).

“2 C.R. Tab V(i), App. B, at 22. This notation was made on

a form which required, in part, a “description of any un-

usual features about environment; height; odors; toxic con-

ditions, temperature, dust, etc.

" § 60.64 (b), 36 Fed. Reg. 24876 (1971).

A-48

measurement of particulate concentration, was erroneously

poured into a beaker from a previous run.** However, de-

viations from prescribed measurement techniques are not

necessarily significant as to testing results, and if peti-

tioners press this point on remand they must establish that

such test deviations bear significant consequences.

Finally, engineer Striker claims significant errors of

measurement were made in determining the measurement

of the cubic feet of stack gas per minute, and a resulting

understatement of the true volume of calcining carbon di-

oxide included in total stack gas. He states that com-

monly “35% (plus or minus 1%) of raw feed is converted

into carbon dioxide in the burning process.” * He then

notes that an accurate measure of raw feed is the volume of

calcining carbon dioxide * appearing in stack gas, which

in turn depends on an accurate measurement of the volume

of stack gas. His own calculations, based on EPA data

showing a stack flow rate of 51,187 cubic feet per minute of

dry gas, indicate that there were 2153 cubic feet per hour of

stack gas in the test attributable to calcining carbon dioxide

coming from the raw feed and that “as a matter of basic

chemistry” 2153 cubic feet of calcining carbon dioxide

“comes only from 22.11 tons of raw feed.” *’ This was at

variance from the kiln rate of 44.03 tons of raw feed per

hour reported in the test. He concludes that the error

lay not in the measurement of the raw feed, but in the

test data reported on the stack gas volume—flow rate of

51,187—which in his judgment requires more sophisticated

equipment for recording than does the raw feed which is

*C.R. Tab V(i), at 7.

8° C.R. Tab IX, at 3.

*¢ The term calcining carbon dioxide is used to distinguish

it from the carbon dioxide that is the result of burning fuel

in the kiln.

** C.R. Tab IX, at 4.

A-49

easily measureable. Having corrected the stack gas figure,

he states his opinion that the EPA assumption of emissions

satisfying its ultimate 0.30 standard was in error.** He con-

cluded :

It is my personal opinion that the particulate matter

emissions of .202 pounds in test 1 per ton of kiln

feed reported .. . is grossly erroneous and that the

correct emission of particulate matter is in the neigh-

borhood of .404 pounds per ton of kiln feed.

We are not competent to decide if Mr. Striker’s methodol-

ogy and conclusions are correct. We can note, however,

that he claims that as a matter of “basic chemistry” two

test values, for feed and gas volume, cannot co-exist. This

is certainly the type of criticism EPA should be required

to discuss on remand.

2. Oregon Portland Cement Plant tests ®

The Oregon plant was wet-process controlled by a bag-

house. Three tests were made on the kiln operation. The

brief of petitioner Portland refers to the test results of

the EPA contractor, and points out that these show that

in test 1 and 2, particulate emissions were .535 and .361

pounds per ton of kiln feed. Only in the third test was

there a result of .291 pounds. Petitioners argue that when

only one out of the three tests meet the EPA standards

(0.3 percent), the data undercut the validity of the stand-

ard. EPA’s brief did not address itself to this point, rely-

ing instead on its general expertise. If our study of the

matter is accurate, it appears that petitioners failed to take

into account that the standard, as promulgated, eliminated

** Id. at 2.

*° A description and analysis of these tests is in the Certi-

fied Record, Tab V(h), Emission Testing Report, ETB Test

Number 71-MM-15. Emissions from Wet Process Kiln at Ore-

gon Portland Cement, Lake Oswego, Oregon. Environmental

Protection Agency, Office of Air Programs.

one of the sampling techniques required by the standard

as proposed. This undercuts petitioner’s contention.”

A more serious matter is presented by intervenor North-

western, which points to the fact that the EPA contractor’s

report indicates that sampling was not conducted when

“process operation was interrupted” and that sampling

was only conducted during the periods of “normal opera-

tion”. The report states:

Several conditions contributing to these interruptions

were: (1) excessive pressure drop across hag house,

(2) visible emissions from leaking bags, and (3) break-

down of dust removal equipment. (C.R. Tab V (h) at

9).

The concern of the manufacturers is that “start-up” and

“upset” conditions, due to plant or emission device mal-

function, is an inescapable aspect of industrial life, and

that allowance must be made for such factors in the stand-

ards that are promulgated. On August 18, 1972, some eight

months after the issuance of the standards under review,

and prior to our October, 1972 remand, the EPA pro-

posed a new regulation to take “startup, shutdown and mal-

function” problems into effect.** The proposed regulation,

* C.R. Tab V(h) at 5. Curiously EPA did not make the

point that the test results of .535, .361, .291, showing only 1

out of 3 successful tests, were based on “total catch’. This

means that the results reflected readings based on probe, fil-

ter and impinger sampling techniques. As we observed how-

ever, note 79 supra, the adopted standard was based only on

probe and filter sampling techniques. The Oregon test gave

these results for tests conducted on that basis: .247, .309, .261,

which shows two successful tests and one almost successful.

C.R. Tab V(h), at 4-5.

*! 37 Fed. Reg. 17214 (August 18, 1972). EPA admitted in

its introduction to the proposed regulation that the standards

here under review did not take into account this problem.

EPA attempted to obviate the implicit criticism by stating in

A-51

which as yet has not been adopted, sets up a procedure by

which emissions due to malfunction will not be the basis

of an enforcement action. It requires reports from manu-

facturers in cases where emissions exceed standards, re-

cording the “violation” and indicating what measures

will be taken to correct or minimize the excess emission

levels. The proposed regulation provides: ”

its proposal:

Such occurrences generally are dealt with by the exer-

cise of discretion in the Agency’s enforcement activities.

The exercise of this discretion would have been accom-

plished by means of an informal process, in which, be-

fore the Agency took enforcement action, sources that

had exceeded the standards would have attempted to

demonstrate to the Agency that such excess emissions

had been unavoidable.

Broadly read, however, this view of enforcement discretion

would defer the question of “available” technology to the en-

forcement stage, an approach not contemplated by section 111.

Companies must be on notice as to what will constitute a vio-

lation. Moreover, an excessively broad theory of enforcement

discretion might endanger securing compliance with promul-

gated standards.

We do agree, however, with the policy reasons offered by

EPA for moving from an informal to a formal system of reg-

ulation. EPA’s explanation of its regulation stated:

Three fundamental! reasons suggested the correctness of

this determination. First, the existence of a formal proc-

ess better informs the public of the policy and factual

issues which will underlie enforcement of the standards.

Second, affected industries which are making good faith

efforts to meet the standards will on the whole welcome

a regularized means of informing the Agency in detail

of the circumstances surrounding unavoidable emissions.

Third, the Agency expects to benefit substantially from

the information it will gain about the operation of the

processes in question, for both future enforcement and

standard setting.

92 Td.

A-52

(f) Nothing in this section shall relieve a source from

compliance with the standards set forth in this part

unless the Administrator determines that (1) the oc-

currence in question did not result from the failure

by the owner or operator of the source to operate and

maintain properly the affected facility, (2) all reason-

able steps were taken to correct, as expeditiously as

practicable, the condition causing the emissions to ex-

ceed the standards, including the use of off-shift labor

and overtime if necessary, and (3) all reasonable steps

were taken to minimize the emissions resulting from

the occurrence.

The proposed regulation, if adopted, may have conse-

quences which go beyond mere provision for malfunctions.

In some sense it imparts a construction of “reasonable-

ness” to the standards as a whole and adopts a more

flexible system of regulation than can be had by a sys-

tem devoid of “give.” As we noted in International Har-

vester, supra, a regulatory system which allows flexibility,

and a lessening of firm proscriptions in a proper case, can

lend strength to the system as a whole. “The limited safety

valve permits a more rigorous adherence to an effective

regulation.” Slip opin. at 44, quoting from WAIT Radio

v. FCC, 135 U.S. App.D.C. 317, 323, 418 F.2d 1153, 1159.

If the EPA adopts, or intends to adopt, this proposed

regulation, it may take the attendant flexibility into ac-

count, on remand, as pertinent to the manufacturers’ objec-

tions, even though the new regulation has been proposed

in @ proceeding with a different docket number and cap-

tion.

3. Interature Sources

The principal source in the scientific literature used by

EPA, HEW’s “Atmospheric Emissions from the Manufac-

ture of Portland Cement”, is called into question by pe-

3 See note 51 supra.

A-53

itioner on the ground that the test methods used to compile

agent of the study were at odds with those used by

EPA in its own tests.“ While counsel for EPA disclaims

reliance on the source, the study was cited in the EPA’s

Statement of Reasons, and EPA should address itself to

this contention on remand.

In this connection, a comment on the proper use of 8ci-

entific literature may be in order. If such literature is re-

lied upon, the agency should indicate which particular find-

ings of that literature are significant. A generalized refer-

ence, to a work as a whole, will avail the agency little if

a problem arises on judicial review. On remand, any find-

ings in the literature that are relied on by EPA should be

specifically indicated. The same procedure is contemplated

here as for the test data not submitted to the manufactur-

ers prior to promulgation of the rule, that there be oppor-

tunity for comment, and an explanation presenting the

EPA position on any challenge.”

* As to how results might be skewed by different sampling

methods, see note 90 supra, and Comments of Mr. Kreichelt

on the proposed rule, C.R. Tab VIII, item 27, at 2-5.

* There is evidence in the record furnished by vendors of

emission control devices but not relied upon by the EPA to

support its standard that, with proper allowance for mal-

function problems, the standards can be met. By way of

comment to the proposed rule, Mr. R. E. Frey, Vice Presi-

dent, Mikro Pul Co., stated in a letter of September 20, 1971,

C.R. Tab V(e), that: “A properly applied fabric filter (or

bag house) will operate with no visible emission. Actual

measured outlet loadings are almost always below 0.02 grains

per cubic foot and often as low as 0.000 x grains per cubic

foot.” This would of course be below the required .03 grains

per cubic foot standard, the converted measure of .30 lb. per

ton of feed to the kiln.

Three letters were inserted into the record following our

June 1972 remand of this case, following the motion of in-

A-54

4. Opacity Standard

Apart from the standard directly regulating particulate

concentration, EPA has adopted an opacity standard which

provides that there shall be no discharge of particulate

matter from the kiln which is: *

Greater than 10 percent anes. except that where

the presence of uncombined water is the only reason

for failure to meet the. requirements for this subpara-

tervenor Medusa Corp. Mr. Jack C. Thomas, Sales Manager of

Rock Products Industry represented to Medusa that:

“We can and will guarantee that our Lurgi Electro-

static Precipitator will limit the effluent to less than .30

lbs. per ton of feed to the kiln. However, we cannot guar-

antee to meet this collection efficiency 100 per cent of

the time. During kiln start-up and upset conditions and

during possible malfunction, it is conceivable that the

ae mag would not be in compliance with the E.P.A.

Similar guarantees were offered by Rock Creek for fabric

filter bags.

Claims of capability to conform to the EPA standards were

also in letters to Medusa—though without mention of guar-

antees—from Buell, Division of Envirotech Corp., and Kaiser

Engineering. C.R. Tab X.

These claims by the vendors could not be responded to by

way of comment, since they were themselves produced as

comment, and can be considered on remand. We note, how-

ever, that if vendor representations were to be a principal

source of reliance by the agency, representations peculiarly

subject to considerations of self-interest, more might be re-

quired than mere comments. See American Airlines v. CAB,

123 U.S.App.D.C. 310, 318-319, 359 F.2d 624, 632-33 (1966)

(en banc), cert. denied, 385 U.S. 848 (1966). Compare In-

ternational Harvester, supra, slip op. at 22. Also see Kennecott

Copper supra, 149 U.S.App.D.C. at 235, 462 F.2d at 850:

“There are contexts however, contexts of fact, statutory frame-

work and nature of action, in which the minimum require-

ments of the Administrative Act may not be sufficient.”

** § 60.62(a) (2), 36 Fed. Reg. 24876 (1971).

A=55

graph, such failure shall not be a violation of this

section.

Opacity is defined by the regulation as “the degree to which

emissions reduce the transmission of light and obscure the

view of an object in the background.” ”

It may be, as EPA argues, that the opacity test is an

important enforcement tool,** and that the results of an

opacity test, which is normally performed at some distance

from the plant by trained observers, offers a cheaper and

faster method of determining compliance than enforcement

of the particulate concentration standard.” However, it

is one thing to use a method of testing to observe possible

violations of a standard; it is another to constitute that

method as the standard itself. If the opacity test is to be

a standard, and if violations can result in enforcement ac-

tions without further testing, the standard must be con-

sistent with the statute and congressional intent.

The thrust of the manufacturers’ comments to EPA,

and repeated here, is that the opacity test is arbitrary—

that inspectors will be unable within any reasonable degree

of accuracy to determine whether permitted opacity is

10%.

The critical question is how accurate can opacity observa-

tions be. On this point we essentially have before us only

7 Id. at § 60.2(j).

* See Comment of State of Maryland to the proposed rule:

“Such a prohibition is one of the most effective tools available

to state and local regulatory authorities.” C.R. Tab VIII, item

24.

* Although the revised sampling methods of EPA may have

lowered the cost of testing for compliance, National Gypsum

Co. commented to the agency on the proposed rule that “the

cost of running a test by the proposed method on a single

baghouse ranges in the neighborhood of $10,000 to $15,000.

... Tab VIII, item 6.

A-56

the contentions of the parties. The manufacturers do point

to a test conducted for the National Center for Air Pollu-

tion Control (U.S. Dept. H.E.W.), where six trained smoke

inspectors evaluated a white training plume known to have

0% opacity.” All six inspectors rated the plume at more

than 0% opacity and 3 evaluated it at more than 20%. A

plume known to be at 20% opacity was rated higher than

20% by 5 of the 6 inspectors (one rated it lower) and 2

of them rated it at almost 40%. Problems may also be

posed for deciding when opacity is due to water content

and when it is not.

The difficulty is that this test has the thrust of indicating

that opacity measurements are inherently inadequate, and

does not seem to be probative of the manufacturer’s quite

different claim, namely, that it is at the low ranges that

opacity tests become less reliable, and too unreliable to be

a legal standard.

On the other hand, EPA’s brief does nothing more than

point to the fact that many states have required that the

plumes from stack emissions conform to a specified per-

centage of opacity. We note, however, that the opacity

standard is at least 20% in the states cited, which corre-

sponds to No. 1 on the Ringelman Smoke Chart.’

109 See Optical Properties and Visual Effects of Smoke

Stack Plumes, Pub. Health Serv. Pub. 999-AP-30 (1967 Na-

tional Tech. Info. Serv. PB 174-705), at 28.

1°! Compare State v. Fry Roofing Co., 495 P.2d 751, 757-58

(Ore. Ct. App. 1972).

102 See Arizona Rules and Regulations for Air Pollution, 1

BNA State Air Laws Environ. Reptr. (BNA Air) 311:0502

(40% for visible emission) ; Arkansas Air Pollution Control

Code, 1 BNA Air 316:0504 (20% for new equipment used in

a manufacturing process) ; California Health and Safety Code

§ 24242 (1967) (40% for aircraft discharge). Also see Con-

A-«57

We think the HEW test adduced by petitioners, though

not decisive, suffices to require further consideration and

explanation by EPA on remand, and a showing on the

record that 10% opacity measurements can be made within

reasonable accuracy.’®

V. Tue Stranparp or Jupicia, Review anp CONCLUSIONS

We are quite aware that the standards promulgated and

here under review are to be applied to new stationary

sources. It would have been entirely appropriate if the

Administrator had justified the standards, not on the basis

of tests on existing sources or old test data in the litera-

ture, but on extrapolations from this data, on a reasoned

basis responsive to comments, and on testimony from ex-

perts and vendors made part of the record. This course

was not followed here. Instead, the Administrator in his

statement of reasons relied on tests on existing plants and

the literature, which EPA counsel now discounts without

reference to other record support to take its place.

The Administrator’s objectives are laudable, but the

statute expressly requires, for the standards he promul-

gates, that technology be achievable. This record reveals

a lack of an adequate opportunity of the manufacturers

to comment on the proposed standards, due to the absence

of disclosure of the detailed findings and procedures of the

tests. This was not cured following our previous October

1972 remand to the agency.

necticut Administrative Regs., 1 BNA Air 331.0513 (20% for

visible emissions) ; Delaware Administrative Regs., 1 BNA

Air 336.0861 (20% for visible emissions).

103 We think Congress anticipated, as in the National Traf-

fic and Motor Vehicle Safety Act of 1966, that the standards

be “objective”, 15 U.S.C. § 1392(a), Otherwise “a manufac-

turer has no assurance that his own test results will be dupli-

cated in tests conducted by the Agency.” Chrysler Corp. v.

Dept. of Transportation, 472 F.2d 65

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