Reply Brief — CPC International, Inc. v. Costle

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Stale:

ations

iu the Supreme Court of the Huited Biates

OCTOBER TERM, 1976

No. 76-981

CPC INTERNATIONAL INC., ET AL.,

Petitioners,

v.

Douc tas M. CosTLE, as Administrator,

Environmental Protection Agency, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Eighth Circuit

REPLY OF PETITIONERS

RosBeErT C. BARNARD

CHARLES F. LETTOW

1250 Connecticut Avenue, N.W.

Washington, D. C. 20036

Attorneys for Petitioners

OF COUNSEL:

CLEARY. GOTTLIEB. STEEN & HAMILTON

1250 Connecticut Avenue, N.W.

Washington, D. C. 20036

APRIL 14, 1977

ee wee

in the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-981

CPC INTERNATIONAL INC., ET AL.,

Petitioners,

Vv.

Douc as M. CosTLE, as Administrator,

Environmental Protection Agency, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Eighth Circuit

‘REPLY OF PETITIONERS

The central issue in this petition was not resolved by this

Court's decision in E. I. du Pont de Nemours & Co. v. Train,

45 U.S.L.W. 4212 (Nos. 75-978, etc., decided February 23,

1977). The issue is whether in new source standards for

corn wet mills “EPA should provide an excursion provision

that will offset the expected . . . violations.” FMC Corp. v.

Train, 539 F.2d 973, 986 (4th Cir. 1976) (emphasis

added). The du Pont decision, however, makes the ques-

tion of “excursions” one of considerable significance, be-

cause the Court held that the standards are “absolute

prohibitions.”

The thrust of EPA’s position is that the Agency could

decide to rely upon enforcement discretion or upon “a

flexible policy of revising permit conditions under certain

circumstances” to account adequately for the inevitable

occasions upon which the Agency’s new source standards

will be exceeded. (EPA’s Memorandum, at 3.)' These occa-

sions would arise because of the statistical method used by

the Agency to derive the standards, and would occur at

well-run plants without the fault of the plant operator.

Given the “absolute” nature of EPA’s new source stand-

ards,’ petitioners submit that EPA’s response is not suffi-

cient. Operators of new corn wet mills should not be forced

to conduct their operations at the sufferance of the Admin-

istrator of EPA, being subject always to a benevolent

Administrator’s willingness to pardon certain “violations”.

Future Administrators may be less willing to accept the

inevitability of certain violations. A plant’s potential ex-

posure in an enforcement action is large; the Act authorizes

the imposition of awesome penalties. See §4 309 and 505.

This case should be remanded for the court of appeals

to reconsider the matter in light of the du Pont decision.

As the Fourth Circuit said in its FMC opinion, “[p]lant

owners should not be subject to sanctions when they are

operating a proper treatment facility.” FMC Corp. v. Train,

539 F.2d 973, 986 (4th Cir. 1976). See also Essex Chemical

Corp. v. Ruckelshaus, 158 U.S. App. D.C. 360, 486 F.2d 427,

432-433 (1973), cert. denied sub nom. Appalachian Power

Co. v. Environmental Protection Agency, 416 U.S. 969

1 EPA also relies upon the assertion that new corn wet mills may avoid

excursions “by applying available waste treatment technology.” (EPA's

Memorandum, at 3.) To some measure, the court of appeals accepted

EPA’s assertion that “many steps,” left unidentified, were available to

reduce effluent variability and thus excursions. (See 540 F.2d at 1337;

Appendix A to Petition, at 14a.) EPA did not include any of these un-

identified steps in “the best available demonstrated control] technology”

(§ 306(a)(1)) which it described for corn wet mills and upon which it

relied, as it had to under the statute, to set the new source standards at

issue here. Accordingly, the unspecified further steps deserve to be

accorded no weight, and the court of appeals logically continued with its

analysis on the basis that a certain number of occasions would arise

where the EPA standards were exceeded in the absence of any fault by

the plant operator. (540 F.2d at 1338; Appendix A to Petition, at 14a-15a.)

2 E. I. du Pont de Nemours & Co. v. Train, 45 U.S.L.W. 4212, 4219

(Nos. 75-978, etc., decided February 23, 1977).

—s

ae

‘__ «

3

(1974) (air emission standards under the Clean Air Act for

new sources).

Respectfully submitted,

RoBeErtT C. BARNARD

CHARLES F. LETTOW

1250 Connecticut Avenue, N.W.

Washington, D. C. 20036

Attorneys for Petitioners

OF COUNSEL:

CLEARY, GOTTLIEB, STEEN & HAMILTON

1250 Connecticut Avenue, N.W.

Washington, D. C. 20036

APRIL 14, 1977

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