Amicus Brief — Portland Cement Ass'n v. Train

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IN THE

Supreme Court of the United States

OcToBEeR TERM, 1975

N. 75-4151

PorRTLAND CEMENT AssocrIATION, An I\linois

Not-For-Profit Corporation

Petitioner

We

ADMINISTRATOR, ENVIRON MENTAL

PROTECTION AGENCY

Respondent

MEDUSA CORPORATION

NORTHWESTERN STATES PORTLAND CEMENT Co.

Intervenors

BRIEF AMICUS CURIAE OF THE AMERICAN IRON

AND STEEL INSTITUTE IN SUPPORT OF THE

PETITION OF THE

PORTLAND CEMENT ASSOCIATION FOR A WRIT

OF CERTIORARI

Max N, EDWARDS

RicHArD E, SCHWARTZ

1666 K Street, N.W.

Washington, D.C. 20006

Attorneys for the American

Iron and Steel Institute

Of Counsel:

| COLLIER, SHANNON, RILL

& EDWARDS

1666 K Street, N.W.

Washington, D.C. 20006

October 17, 1975

Press or Byron S. Apams Purntine, Inc., Wasurncron, D. C.

12606.10-75

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No.

PorTLAND CEMENT AssocraATION, An IIlinois

Not-For-Profit Corporation

Petitioner

v.

ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

Respondent

Mepvusa CORPORATION

NoRTHWESTERN STATES PoRTLAND CEMENT Co,

Intervenors

BRIEF AMICUS CURIAE OF THE AMERICAN IRON

AND STEEL INSTITUTE IN SUPPORT OF THE

PETITION OF THE

PORTLAND CEMENT ASSOCIATION FOR A WRIT

OF CERTIORARI

INTEREST OF THE AMERICAN IRON

AND STEEL INSTITUTE

The American Iron and Steel Institute (‘‘the

Institute’’) is a non-profit trade association incorpo-

rated under the laws of the State of New York with

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principle offices at 1000 16th Street, N.W., Washington,

D.C. 20006. The Institute has approximately 65

member companies in the United States which employ

over a half million people and produce more than 95%

of the steel made in America.

The Institute’s member companies are subject to

opacity standards similar to those involved here under

the Administrator’s Standards of Performance for

Steel Plants: Electric Arc Furnaces, 40 C.F.R. § 60.270

et seq., 40 Fed. Reg. 43850 et seqg., September 23, 1975.

Thus, the Institute’s members will be directly affected

by this Court’s determinations on the opacity questions

presented herein.

While the Institute supports the Portland Cement

Association’s petition with regard to all of the ques-

tions presented for review, this brief will discuss only

the opacity-related questions. The Institute believes

that these issues present important questions of Fed-

eral law which have not been, but should be, settled by

this court.

ARGUMENT

I. Opacity Standards Have a Pervasive Impact on Industry.

Under section 110 of the Clean Air Act the states are

required to adopt and submit to the Environmental

Protection Agency (‘‘EPA’’) implementsion plans

to assure that all national primary and secondary

ambient air quality standards will be attained. Section

110 of the Act is an exceedingly vague delegation of

power: it does not prescribe how an ambient air

quality standard is to be attained or enforced. Thus

the states look to EPA, which is charged with review-

ing all state implementation plans, for guidance as to

the substance of the plans. Following EPA’s own

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practice, the states use opacity standards to enforce

the implementation plans, and they commonly use

EPA’s Reference Method 9 as the test method for

opacity. Thus, this Court’s determinations with regard

to opacity in general, in Reference Method 9 in partic-

ular, will have an impact on every industry subject

to state implementation plan emission limitations under

the Clean Air Act.

II. This Court Should Review the Administrator's Regulations

To Determine Whether the Opacity Provisions Contained

Therein Violate Due Process of Law.

The ‘‘opacity’’ of a smoke plume refers to the amount

of light it blocks rather than the amount of pollution

it contains. A plume of smoke containing less pollution

than another can appear to have greater opacity de-

pending upon such factors as the size of the smokestack,

the size and shape of the particles, the amount of

condensed water vapor in the plume, wind speed and

other atmospheric conditions (such as inversions), and

the contrast between the color of the smoke and the

color of the sky (or whatever serves as the background

for the opacity observation). The Administrator

admits that all of these factors affect opacity readings.”

Moreover, even holding those factors constant, the

record shows that visual opacity readings by EPA-

certified observers are highly inaccurate. The presti-

gious, independent American Society for Testing and

1 Analysis of Final State Implementation Plans—Rules and

Regulations U.S. EPA (Office of Air Programs) Publication APTD

1334 (1972), at 51.

2 See 39 Fed. Reg. 39874 (November 12, 1974) ; and ‘‘ Excerpts

From EPA Response to Remand,”’ Petition For a Writ of Cer-.

tiorari, A-90-96.

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Methods (‘‘ASTM’’) whose tests are often used by

EPA, has studied the accuracy of visual opacity deter-

minations (ASTM Pub. DS 55-810, 1974) using read-

ings by seven EPA-certified observers. ASTM con-

cluded :

. . . smoke readings by a single observer are not

precise enough to provide very good control of

visible emissions: therefore, single readings are

not very reliable for enforcement purposes when

regulatory controls are strict. ‘‘Smoke Readings

Vary with Observers,’’ Electrical World, 1-15-75.*

EPA defended the accuracy of its test method in the

Court below by citing studies that EPA itself con-

ducted to validate its own test procedure. These tests

averaged sets of observational errors made by multiple

observers which, as ASTM noted, allows observers who

make low readings to cancel out those who make high

readings. Nonetheless, a 7.5% opacity error was found.

Unfortunately, actual tests are based on readings made

by only one observer, so the ‘‘averaging’’ method em-

ployed by EPA to ‘“‘prove’’ its test method is more

accurate than the actual test employed.

In addition, EPA’s certification procedures are

inadequate. Observers attending ‘‘smoke school’’ are

shown calibrated plumes of known opacity before they

take the certification test, and they may retake the test

until they pass it. Thus, passing a smoke school test

is easier than making an accurate field reading.

The foregoing facts raise substantial issues of law

concerning the epacity provisions under review.

First, opacity cannot be used as a standard under the

Clean Air Act because it is unrelated to the amount of

8’ The Bureau of Standards of the U.S. Department of Commerce

has reached a similar conclusion. 39 Fed. Reg. 37466, October 21,

1974,

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pollution emitted—the only factor recognized by EPA

to be related to protecting the public health and welfare

under the Act. In fact, EPA does not even attempt to

justify its opacity standard on this basis, but rather on

the ground that opacity standards will be set at a level

which will correspond to violations of the mass emission

standards.*

But EPA’s method of setting opacity standards as

a test for mass emission limits cannot be sustained.

First, even assuming that EPA is capable of accurately

equating opacity limits to mass emission limits on a

plant-by-plant basis,® the record indicates that changes

in average particle size as well as changes in atmos-

pheric conditions (especially inversions) will render

nugatory any such calibration. That fact, in addition

to the inherent inaccuracy of the opacity test itself

indicates that the opacity regulations under review

here violate the many decisions of this Court which

have consistently held that when a requirement directly

related to a statutory purpose (here, mass emission

limits) is measured by reference to a test which is not

directly related to the statutory purposes (here, the

opacity standard) then that purported relationship

must be ‘‘necessarily or universally true in fact.”’

Vlandis v. Kline, 412 U.S. 441, 452 (1973). Accord,

Cleveland Bd. of Ed. v. La Fleur, 414 U.S. 632 (1974) ;

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

Illinois, 405 U.S. 645 (1972) ; Bell v. Burson, 402 U.S.

535 (1971). The constitutional infirmity of EPA’s

opacity test is exacerbated by the fact that the test is

4 Petition for Certiorari, A-64-65, 90.

540 C.F.R. § 60.11, 39 Fed. Reg. 39872 et seq., November 12,

1974.

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performed without notice to the operator of the source.

Lack of notice renders the subjective observations of

the test observer irrefutable, because the only way to

confirm or deny an opacity observation is through an-

other opacity observation from the same location at

the same time. Lack of notice of the opacity test elim-

inates any possibility of a meaningful hearing on the

purported opacity violation. For this reason, one court

has held that the absence of notice violates due process

of law. Western Alfalfa Corp. v. Air Pollution Vari-

ance Bd. 510 P.2d 907 (Colo. App. 1973), rev’d. on

other grounds, 416 U.S. 861. See Armstrong v. Manzo,

380 U.S. 545 (1965).

CONCLUSION

For the foregoing reasons, this Court should grant

the Petition For a Writ of Certiorari submitted by the

Portland Cement Association.

Respectfully submitted,

Max N. EDWARDS

RicHArRD E,. SCHWARTZ

1666 K Street, N.W.

Washington, D.C. 20006

Attorneys for the American

Iron and Steel Institute

Of Counsel:

CoLLIER, SHANNON, RILL

& EDWARDS

1666 K Street, N.W.

Washington, D.C. 20006

October 17, 1975