Opposition — Portland Cement Ass'n v. Train

INDEX

Page

Opinion below eliiiiasisedbcentannersies : 1

Jurisdiction __ Sr 1

Statute involved <1 1 2

Questions presented 2

eens 3

Nee cceericemenneneenseneneenece 7

See Sn 15

CITATIONS

Cases:

Adkins v. Children’s Hospital, 261 U.S.

ae 13

Jones v. Brim, 165 US. 180 . CO 13

Lochner vy. New York, 198 U. S, 45 - 13

Mourning v. Family Publications Service,

a 14

Vlandis yv. Kline, 412 U.S. 441 - 12

West Coast Hotel Co. v. Parrish. 300 U. S.

ee 2S . 14

Constitution, statute and regulations:

United States Constitution, Fifth Amend-

ment . 13

Clean Air ‘Act, “Section 111, as s added, 84

Stat. 1683, 42 U.S.C. 1857c-6 - —— *

Section 111(a) (1), 42 U.S.C. 1857c-

6(a)(1) —... 3, 7,11

Section 111(b), 42 U.S.C. 1857-6

| SS jelieenicinntininsconeceneneee 3

Constitution, statute and

regulations—Continued

40 C.F.R. Part 60:

Section 60.8(f) — a

Section 60.64(b)

Section 60.122(a)(1)

Section 60.132(a)(1)

Section 60.142(a)(1)

Miscellaneous:

86 Fed. Reg. 24876 =.

37 Fed. Reg. 5767

39 Fed. Reg.:

9314

20793

32852-32854

ee

32857-32858

32860-32870

39872 hea eedtcal

39872-39874

Iu the Supreme Court of the Anited States

OCTOBER TERM, 1975

No. 75-415

PORTLAND CEMENT ASSOCIATION, PETITIONER

Vv.

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

1-5) is reported at 513 F.2d 506.

JURISDICTION

The judgment of the court of appeals was entered

on May 22, 1975. A timely petition for rehearing

(1)

2

en bane was denied on June 19, 1975. The petition

for a writ of certiorari was filed on September 16,

1975. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATUTE INVOLVED

The relevant portions of Section 111 of the Clean

Air Act, as added, 84 Stat. 1683, 42 U.S.C. 1857c-6,

are set forth at Pet. App. 109-111.

QUESTIONS PRESENTED *

1. Whether the Environmental Protection Agency

(EPA) Administrator adequately took cost into ac-

count in promulgating new source performance stand-

ards for portland cement plants under Section 111

of the Clean Air Act, 42 U.S.C. 1857c-6.

2. Whether constitutional guarantees against dis-

crimination require that emission standards be iden-

tical for different industries emitting the same type

of pollutants.

1 Petitioner includes as a question presented: “Is a mass

standard to measure total pollution valid if it can be violated

by a momentary excessive emission?” (Pet. 2, emphasis in

original.) EPA’s regulations require a minimum of three

hours of sampling to determine compliance. 40 C.F.R. 60.8(f),

39 Fed. Reg. 9314; 40 C.F.R. 60.64(b), 39 Fed. Reg. 20793.

Thus, petitioner is incorrect in stating that a momentary

emission may constitute a violation. In its opinion of May 22,

1975, the court of appeals stated “[this question] was not at

issue on the remand and we accordingly do not feel called upon

to deal with it” (Pet. App. 4).

cui oii

3

3. Whether the plume opacity standard is invalid

due to its alleged “subjectivity”, “inaccuracy”, and

failure to measure actual levels of pollution.

STATEMENT

Section 111(b) of the Clean Air Act (hereinafter

referred to as the “Act”), 42 U.S.C. 1857c-6(b), re-

quires the EPA Administrator to publish a list of

categories of significant stationary air pollution

sources that he determines may contribute to endan-

gering public health or welfare. After publishing

the list, the Administrator must establish perform-

ance standards for new sources in those categories

which are attainable by the best demonstrated system

of emission reduction. In formulating the standards,

the Administrator is required to take “into account

the cost of achieving such reduction.” 42 U.S.C.

1857c-6(a) (1).

On December 23, 1971, the Administrator pro-

mulgated under Section 111 of the Act two stand-

ards that limit particulate emissions from new or

modified portland cement plants (36 Fed. Reg. 24876,

Pet. App. 10). One of the standards—the mass emis-

sion standard—limits particulate emissions to a cer-

tain quantity per ton of feed, and the other—the

opacity standard—limits the density of exhaust gases.

Thereafter, petitioner filed a petition for review

in the United States Court of Appeals for the Dis-

trict of Columbia Circuit seeking to have both of

these new source standards set aside for a number

of reasons.

4

On June 29, 1973, the court of appeals affirmed in

part, reversed in part, and remanded the case to

EPA for further proceedings (Pet. App. 7-59). In

pertinent part, the court determined: (1) that EPA

had adequately taken costs into account in setting

standards of performance, with a possible exception

in regard to which the court remanded (Pet. App.

28-30);°* (2) that EPA had adequately explained

the reasons for the different standards for power

plants and incinerators (which petitioner had con-

tended were discriminatory), but also that EPA is

not generally required to present affirmative justifi-

cation for different standards for different noncom-

petitive industries since numerous factors peculiar to

a specific industry determine the feasible measure of

control (Pet. App. 30-33);* and (3) that on remand

EPA must further consider and explain how the

opacity standard can be measured with reasonable

2 The court remanded the case to EPA to “consider, as a

matter of economic costs, contentions and presentations sub-

mitting that the standard as adopted unduly precludes supply

of cement * * *” (Pet. App. 30).

* EPA had explained that tests at existing plants indicated

that superior technology was being used by cement plants. The

court of appeals, noting a possible change in the technology

available to power plants and incinerators, stated (Pet. App.

32, n. 55):

If the same technology is now available and in use for in-

cinerators, steam power plants and cement plants, the

Administrator on remand may wish to offer some further

explanation of the difference in standards set simultane-

ously for the three industries.

5

accuracy. A petition for a writ of certiorari filed by

the petitioner in this case was denied. 417 U.S. 921.

On remand, EPA determined that meaningful cost-

benefit analysis of the standards is not presently

possible, nor is it required by the statute (Pet. App.

61). However, EPA again recognized and undertook

to fulfill its responsibility to take costs of control into

account when setting standards. It stated that costs

of control which the industry could not bear and sur-

vive, which are grossly disproportionate to the emis-

sion reduction achieved, or which would result in the

inability of new plants to compete with established

firms in the industry, will not be required (Pet. App.

61-62). EPA also found that there were valid techno-

logical reasons for setting different particulate mass

emission standards for portland cement plants, power

plants and municipal incinerators (Pet. App. 62-

63).* Finally, EPA found that opacity measurements

can be reliably made and are a reliable indicator of

pollutant emissions. Numerous tests demonstrate

that trained opacity observers can read plumes with

a normal error not exceeding 7.5 percent opacity

* Petitioner is incorrect in its statement that the EPA re-

mand response “[c]onceded that power, cement and asphalt

concrete plants all can control particulate emissions to the

same degree” (Pet. 8). EPA stated that it now appears that

portland cement plants, municipal incinerators and power

plants “may” be able to achieve the same levels of control. Due

to this fact the Administrator indicated that he would consider

tightening the standards for power plants and incinerators.

Petitioner’s statement regarding EPA’s alleged concession is

particularly erroneous concerning asphalt since the standard

for that industry was not even mentioned (Pet. App. 62-63).

6

(Pet. App. 73), and that there is little likelihood

that any source will be prejudiced by the opacity

standard since EPA takes this margin of error into

account when determining possible violations (Pet.

App. 78, 79).

On review after the remand, the court of appeals

affirmed EPA’s standards (Pet. App. 1-5). The court

reiterated its view that EPA was not required to

undertake quantified cost-benefit analyses, measuring

benefit to ambient air conditions against the cost of

pollution control devices. Noting petitioner’s admis-

sion that the standards were achievable by the port-

land cement industry (Pet. App. 3), and that the

industry had not shown inability to adjust to the

standards in a healthy economic fashion (Pet. App.

4), the court held that EPA had fulfilled its statu-

tory responsibility.

As to the claim of discrimination, the court of

appeals held that there was no proof of unreason-

ableness in the diversity of standards (Pet. App. 3).

The court, however, expressed the belief that EPA

would, as it had promised (Pet. App. 63), consider

the diversity of standards in light of accumulating

experience (Pet. App. 3).

Finally, the court approved EPA’s extensive and

careful analysis of the achievability and reliability

of plume opacity standards (Pet. App. 4). The court

manifested a concern about the propriety of judicial

interference in the formative stages of pollution con-

trol efforts, noting that EPA’s conclusions and sug-

- eee seane we =

7

gestions concerning the problems of opacity stand-

ards were well reasoned (Pet. App. 4).

ARGUMENT

The decision of the court of appeals is correct, does

not conflict with any decision of this Court, and pre-

sents no question warranting review.

1. Petitioner contends that Section 111(a)(1) of

the Clean Air Act requires EPA to undertake quanti-

tative cost-benefit analyses before promulgating pol-

lution control standards. The pertinent statutory lan-

guage requires the Administrator of EPA to es-

tablish standards of performance which reflect “the

degree of emission limitation achievable through the

application of the best system of emission reduc-

tion which (taking into account the cost of achiev-

ing such reduction) the Administrator determines

has been adequately demonstrated.” (Emphasis add-

ed.) This is what the Administrator has done in

this case. Petitioner seeks to have the Court impose

a particularized methodology for arriving at stand-

ards that conform with the statute, without address-

ing the fact that the standards here conform with

the statute.

EPA, relying on economic studies of the industry

and its own extensive economic analysis, took costs

into consideration as required by the statute. EPA

has indicated on the record that it would not im-

pose standards when the cost of meeting such stand-

ards would be so great that the industry could not

8

survive (Pet. App. 61). But beyond that, EPA

has said it would not require a measure of control

that was “so grossly disproportionate” to the cost

(Pet. App. 61), or that would result “in the inability

of new plants to compete with established firms in

the industry” (Pet. App. 62). Based on these stand-

ards, EPA determined that the standard it set for

the portland cement industry is achievable by that

industry. Petitioner has admitted that the standard

is in fact achievable (Pet. App. 3). Moreover, pe-

titioner has failed to show an “inability to adjust

itself in a healthy economic fashion” (Pet. App. 4).

Indeed, the opposite is suggested by EPA’s note in

the remand that major expansions of existing port-

land cement plants have taken place since the stand-

ard went into effect.

The court of appeals, in its first opinion, rejected

the necessity of a quantified cost-benefit analysis

that measured benefit to ambient air conditions

against cost (Pet. App. 28-29):

However desirable in the abstract, such a re-

quirement 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 mili-

tates against the imposition of such an impera-

tive on the agency. Such studies should be con-

sidered by the Administrator, if adduced in com-

* Petitioner seriously misstates EPA’s position on costs

when it says that EPA will consider the cost factor only if the

cost of control threatens the survival of the industry (see

Pet. 11).

9

ments, but we do not inject them as a necessary

condition of action.

On remand, EPA agreed that a cost-benefit analysis

of the kind demanded by petitioner was a practical

impossibility.’ It also agreed that such an analysis

was not required by the statute.’ It reasoned that

the purpose of the statute’s requirement was not to

assure maximum cost effectiveness, but to take the

well-being of the industry into account in achieving

the best available measure of control. This EPA

did.

2. Petitioner contends that the portland cement

standard is discriminatory. It does not argue that

the standard is unreasonably burdensome; indeed pe-

titioner concedes that the industry can meet the ap-

plicable standard (Pet. App. 3). Petitioner’s argu-

ment simply is that the standard is more stringent

than standards set for power plants and incinera-

tors."

* Petitioner’s contention that EPA has elsewhere said other-

wise (Pet. 14), is not supported by the evidence it advances:

none of the statements attributed to EPA suggests that quan-

tified cost-benefit analyses, measuring, in the context of

each particular source, benefit to ambient air quality against

cost of control, for the purpose of determining maximum

marginal cost effectiveness, can be developed, especially in the

short time sequence provided by the statute for establishing

standards of performance (see Pet. App. 14).

‘EPA did consider cost-benefit information submitted by

petitioner, which was conceptual in nature and was found by

EPA not to be directly related to the portland cement industry.

*It should be noted that although the portland cement

standard is in fact more stringent than those for certain new

10

At the time the standards were developed there

was a reasonable basis for different measures of con-

trol. As EPA said in its “Supplemental Statement

in Connection With Final Promulgation” (37 Fed.

Reg. 5767; see Pet. App. 31), and as it further ex-

plained in its remand response (Pet. App. 62-63), the

standards for each industry were based on the par-

ticular technology that had a proven applicability to

that industry. The standards for power plants and

incinerators were based on the use of precipitators

(Pet. App. 62); a precipitator is a device that col-

lects dust particles from an exhaust gas after the

particles have been electrically charged and passed

through an electrical field (see Pet. App. 35). The

standards for cement plants, on the other hand, were

based on the use of glass fabric bags located in “bag

houses”; for this method, the exhaust gas is cooled

and passed through the bags, which filter out the

particulate dust (ibid.). At the time the standards

were promulgated, “the removal efficiencies being

achieved by properly maintained and operated bag-

houses on Portland cement plants were superior to

those being achieved by power plants and incinera-

tors * * *” (Pet. App. 63). For this reason -“the

effective emission concentration limits were more re-

strictive for Portland cement plants” (ibid.).

source categories, it is less stringent than the standard for

others. Compare 40 C.F.R. 60.122(a)(1) (secondary lead

smelters), 60.132(a) (1) (secondary brass and bronze ingot

production plants), 60.142(a) (1) (iron aud steel plants).

ee

11

This factual explanation is a part of the record;

the court of appeals found it reasonable (Pet. App.

3, 31). Certainly there is no constitutional or statu-

tory infirmity with reasonably based variations in

measures of control. Indeed, we believe that the court

of appeals was correct in its original opinion, hold-

ing that as a general matter EPA “is not required

to present affirmative justifications for different

standards in different industries” (Pet. App. 32).

Section 111(a)(1) of the Act requires that a new

source standard reflect the best “adequately demon-

strated” system of emission reduction. Inevitable

variations of process, raw materials, control tech-

niques in use, and other factors in different industries

result in different achievable limits for various indus-

tries. Also, cost factors, which must be taken into

account, are as a rule different for the various in-

dustries and thus result in different standards.

In this case, there is evidence that the glass fabric

bag technology is being introduced into the power

plant and incinerator industries (see Pet. App. 31, n.

55). Moreover, EPA has indicated that precipitator

technology may be equally as effective as the bag-

houses used by portland cement plants (Pet. App. 63).

EPA has said (ibid.) that on this basis it “will con-

sider whether the particulate standards for the other

two industries should be tightened.” EPA’s proposal

to consider tightening the standards to make them

more nearly similar in all three industries should sat-

isfy petitioner’s complaint that the standards are now

arbitrarily different.

12

3. Finally, petitioner contends that the opacity

standard is invalid because it fails “to reliably meas-

ure pollutant volume with reasonable accuracy” (Pet.

9). The argument is two pronged: first, petitioner

states that “opacity of a plume does not ‘necessarily’

or ‘universally’ indicate the amount of pollution it

contains” (Pet. 17). Second, petitioner claims that

“visual evaluation of plume opacity is inaccurate”

(ibid.). Petitioner contends that under the so-called

“irrebuttable presumption” cases, see, e.g., Vlandis

v. Kline, 412 U.S. 441, a statutory or regulatory

classification, viewed as a means to an end (i.e.,

the legislative purpose), must not operate as an irre-

buttable presumption unless the presumption is “nec-

essarily or universally true in fact” (Pet. 16).

However, petitioner has not shown that plume

opacity standards are irrebuttable or conclusive pre-

sumptions. Continuous monitoring devices are avail-

able to operators of portland cement plants; these

devices can measure opacity levels or the level of

particulate emissions. See 39 Fed. Reg. 32854,

32860-32870. EPA has said that it would “accept as

probative * * * the results of * * * continuous moni-

toring * * * which indicate that the opacity at the

time [of the visual inspection] * * * was not in ex-

cess of the standard * * *” (Pet. App. 89). Petitioner

can point to no evidence that EPA would not also ac-

cept as probative results of continuous monitoring

showing that particulate emissions were below the

prescribed standard, even though plume opacity was

13

excessive.” Moreover, in discussing the tandem oper-

ation of the opacity and the emission standards, EPA

said, “In some cases, of course, [where visual inspec-

tion of plume opacity suggests noncompliance] a full

investigation of operating and maintenance condi-

tions will be desirable” (Pet. App. 66). Thus, even

assuming that plume opacity is used as a measure of

particulate emissions, the opacity standards do not

establish an irrebuttable measure of such emissions.

In any event, to contend that a “conclusive pre-

sumption” in the area of economic regulation per-

force violates the Fifth Amendment (Pet. 16-17) is

to argue for a return to the days of Lochner v.

New York, 198 U.S. 45, and Adkins v. Children’s

Hospital, 261 U.S. 525. Whether the substantive

rule of law embodied in EPA’s standards deprives

petitioner of due process does not depend on labels; *°

when regulation of business is in question the test

*EPA has promulgated an amendment to its regulations

that permits the owner or operator of a source to apply for a

variance from the applicable opacity standard when, in the

exceptional case, the facility is complying with other standards

while not meeting opacity standards. This amendment is de-

signed to assure that there is a correlation between the opacity

and the emission standards such that each operator will be

able to meet the former at all times during which he is

meeting the latter. See 39 Fed. Reg. 39872-39874.

1° Even if the EPA’s standards were correctly characterized

as “conclusive presumptions” (but see p. 12, supra), the

“creation by law of such presumptions is after all but an illus-

tration of the power to classify.” Jones v. Brim, 165 U.S. 180,

183.

14

is that stated by the Court in West Coast Hotel Co.

v. Parrish, 300 U.S. 379, 391: “regulation which is

reasonable in relation to its subject and is adopted

in the interests of the community is due process.”

EPA’s standards meet that test. See Mourning v.

Family Publications Service, 411 U.S. 356, 371,

377.

Petitioner’s characterization of the two-fold un-

reliability of plume opacity standards was quite care-

fully and intensively studied by EPA, and rejected

(Pet. App. 64-102). The court of appeals held that

there was no sound basis for rejecting these factual

findings (Pet. App. 4). EPA found that in reality

the opacity standard is a very close fit with the par-

ticulate emission standard, despite the theoretical pos-

sibilities raised by petitioner (Pet. App. 90-102). And,

after extensive testing, EPA concluded that visual

observations of plume opacities were almost uni-

versally reliable within a given, small margin of er-

ror (Pet. App. 67-90). To assure fair treatment,

EPA has stated that it will not seek enforcement

action against facilities based on opacity readings

that do not exceed the standard by more than this

margin of error (Pet. App. 79).”

" EPA also noted throughout its response to the court of

appeals’ remand that in view of petitioner’s and others’ input

concerning the plume opacity standards, EPA was amending

its regulations in several respects. See 39 Fed. Reg. 32852-

32854, 32857-32858, 39872. The court of appeals was quite

clearly sensitive to EPA’s good faith efforts and to the wis-

dom of judicial noninterference in the formative stages of

the technical aspects of environmental control (Pet. App. 4).

15

Finally, the calculus petitioner would have the

Court impose fails to consider the finding by EPA

that the opacity standard is presently crucial to the

success of any regulatory scheme (Pet. App. 65-66).

The industry and EPA may eventually develop a

measure of compliance which is more acceptable.

But until that occurs, plume opacity standards

monitored by visual inspections are a necessary, as

well as reliable and achievable, means of effectuat-

ing the purpose of the Clean Air Act.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

WALTER KIECHEL, JR.,

Acting Assistant Attorney General.

ALFRED T. GHIORZI,

EDMUND B. CLARK,

WILLIAM L. WANT,

Attorneys.

NOVEMBER 1975.

® wv. &. Government pemmtine orrice; 1975 se7614 129