# Petition — Portland Cement Ass'n v. Train > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1049%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 1025 ## Text Supreme Court, U. S. FILED j | 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 v. 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 iv 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) ..... 18 11 11 16 16 17 IN THE Supreme Court of the Anited States Ocroser Term 1975 No. PORTLAND CEMENT ASSOCIATION An Illinois Not-For-Profit Corporation Petitioner v. 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 2 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. 4 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 5 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.) A 6 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 © age . Maree ee ee... 7 (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) 8 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 9 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 10 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 in — Ne ee ee Owe he Wt ede, POSER DAG ait sha Ria 4 it othe dei 11 “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) 12 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) — 13 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. 14 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”. 15 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) 16 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 17 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) 18 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. 19 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) : 20 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. 21 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.) 22 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 v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY APPENDIX to 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, v. 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 COPYRIGHT © 1975, by WEST PUBLISHING CO. 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 Ve 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 aa 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. oe 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 © 37 Fed. Reg. 5767 (1972). '' 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 (C) include in every recommendation or report 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 ' 4 | 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 ss 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 achiev [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1049%3A01. Public record. Not legal advice.