Opposition — Timken Co. v. Environmental Protection Agency

upreme Court,

FPL

21 1978

Nos. 78-83 and 78-84 SEP 82 |

WRT KODAK, J%., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

TIMKEN COMPANY, PETITIONER

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

CLEVELAND ELECTRIC ILLUMINATING CO., ET AL.,

PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

WADE H. MCCREE, JR.,

Solicitor General,

JAMES W. MOORMAN,

Assistant Attorney General,

EDWARD J. SHAWAKER,

PAUL M. KAPLOw,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

JOAN Z. BERNSTEIN,

General Counsel,

RONALD C. HAUSMANN,

Attorney,

Environmental Protection Agency,

Washington, D.C. 20460.

INDEX

ona Page

Opinion below _.

RE Re ARAL TN eC OT

2

2

Questions presented -...........................---....---.--- 2

SR ERE EE aE eee TT a eT Ne Se 2

6

I 0a eee ee Ts se go 13

CITATIONS

Cases:

Citizens to Preserve Overton Park, Ince.

v. Volpe, 401 U.S. 402 - eo 2S I 9

Kennecott Copper Corp. v. ‘Train, 526

F.2d 1149, certiorari denied, 425 U.S.

935 | oe 7,10

Mision Industrial, Inc. Vv. Envir onmental

Protection Agency, 547 F.2d 123 a 10

Sierra Club v. Environmental Protection

Agency, 540 F.2d 1114, remanded on

other grounds, sub nom. Montana

Power Co. v. E.P.A., 434 U.S. 809... 7-8, 10

South Terminal Corp. v. Environmental

Protection Agency, 504 F.2d 646... ~—s«-: 7,10

Texas v. Environmental Protection Agen-

cy, 499 F.2d 289, certiorari denied, 427

U.S. 905 - ca 7,10

Train v. Natural Resources De fense Coun-

cil, 421 U.S. 60 | 3

Union Electric Co. Vv. _ EPA, 427 U. S. 246. 11

II

Statutes and regulations: Page

Clean Air Amendments of 1970, 84 Stat.

1676, 42 U.S.C. 1857 et seq. 2

Section 110, now 42 U.S.C. 7410 9

Section 110(a), now 42 U.S.C, 7410

(a) 2,9

Section 110(c), now 42 U.S.C. 7410

(c) - 3, 11

Section 165(e)(3), now 42 U.S.C.

7475(e) (3) 8

Section 307 (b)(1), now 42 U.S.C.

7607(b) (1) 4

Clean Air Act Amendments of 1977, Pub.

L. 95-95, 91 Stat. 685, 42 U.S.C. 7401

et seq. 2

Section 320(d), 42 U.S.C. 7620(d) 8

40 C.F.R. 52.1881 (b) (2) (iii) 12

40 C.F.R. 60.46 eee, 12

Miscellaneous:

EPA Supplemental Technical Support

Document: Sulfur Dioxide Control

Strategy for the State of Ohio, May

1977 : 5, 11-12

Final Technical Support Document (Au-

gust 1976) 11

“Evaluation of the Technological Feasi-

bility and Cost of Selected Contro] Al-

ternatives Necessary to Meet Proposed

Ohio SO. Regulations for Industrial

Boilers and Processes,’ GCA-Technol-

ogy Division, Nine Volumes, Record

Index [X.D.1-21 ae 12

Ill

Miscellaneous—Continued

“Evaluation of the Technological Feasibil-

ity and Cost of Selected Control Alter-

natives Necessary for Power Plants to

Meet the Proposed Ohio SO. Regula-

gl PEDCo Environmental Special-

ists, Fourteen Volumes c

i Rey ) . ants Index

“Inflationary Impact Statement on Sul-

fur Oxide Regulations for Ohio,” Vol-

umes 1-11, Record Index IX.I.1-11

40 Fed. Reg. 52410

41 Fed. Reg. 36324

43 Fed. Reg. 6646

Page

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-83

TIMKEN COMPANY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 78-84

CLEVELAND ELECTRIC ILLUMINATING CO., ET AL.,

PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (No. 78-83, Pet.

App. 1a-49a; No. 78-84, Pet. App. 19-70) is reported

at 572 F.2d 1150.

JURISDICTION

The judgment of the court of appeals was entered

on February 13, 1978. A petition for rehearing was

denied on April 18, 1978. The petitions for a writ of

certiorari were filed on July 14 and 15, 1978 respec-

tively. The jurisdiction of this Court is invoked un-

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

QUESTIONS PRESENTED

1. Whether petitioner had adequate notice and

opportunity to comment on EPA’s pollution control

plan (No. 78-83).

2. Whether the court of appeals adequately re-

viewed the plan (Nos. 78-83 and 78-84).

3. Whether the record adequately supports the

technological and economic feasibility of the plan

(Nos. 78-83 and 78-84).

4, Whether the plan fails to set forth technical

means for compliance (No. 78-84).

STATEMENT

In the Clean Air Amendments of 1970, 84 Stat.

1676, 42 U.S.C. 1857 et seq.," Congress directed each

1 The Clean Air Act (formerly 42 U.S.C. 1857 et seq.) is now

42 U.S.C. 7401 et seq. See Clean Air Act Amendments of 1977,

Pub.L. 95-95, 91 Stat. 685.

3

state to establish a plan for the control of air pollu-

tion by 1972. See Train v. Natural Resources De fense

Council, 421 U.S. 60. The State of Ohio, however,

failed to develop a plan for the control of sulfur diox-

ide pollution and, accordingly, as required by Section

110(c), 42 U.S.C. 7410(c), EPA published its pro-

posed plan on November 10, 1975 (40 Fed. Reg.

52410). At the same time it released for public re-

view and comment a two-volume technical support

document of approximately 900 pages, setting forth

the scientific basis and rationale for the proposed

plan. EPA. then held five days of public hearings in

four cities in Ohio, and solicited written comments on

the proposed plan until January 23, 1976. In all,

more than 230 comments and associated exhibits were

submitted, resulting in an administrative record of

several thousand pages.

As a result of these comments and others presented

at the public hearings, EPA modified the method of

determining emission limitations for pollution sources

in most urban areas in Ohio, Specifically, EPA

used the Real-Time Air-Quality Simulation Model

(“RAM”), a mathematical computer model which

simulates the complex atmospheric dispersion of a

pollutant from urban sources and predicts resultant

ground ievel concentrations of the pollutant. Prior

models were unable to evaluate more than one source

at a time; RAM thus represented a significant ad-

vance in analyzing urban pollution problems. On Au-

gust 27, 1976, the Administrator promulgated the

control plan for sulfur dioxide emissions (41 Fed.

4

Reg. 36324) and released a second technical support

document of approximately 1,260 pages, which eval-

uated the comments and explained the changes made

in the plan in response to comments.

Petitioners and others sought judicial review of the

plan in the court of appeals under Section 307 (b) (1),

42 U.S.C. 7607(b)(1}. On November 14, 1976,

after a hearing and upon consideration of motions

for stay of enforcement of the plan, the court sua

sponte ordered that the administrative record be

opened and that those seeking review be allowed

60 days to comment on the plan as promulgated.

See Pet. App. 7a, 8a-9a.°

The court’s order precluded the submission of

“any new emission, process or air quality data” (Pet.

App. 8a).* This limitation was not intended to, nor

did it, prevent any petitioner from submitting com-

ments on EPA’s decision to use the RAM model or on

the scientific rationale underlying the model, or from

suggesting modifications to the model. Indeed, the

consulting firm retained by petitioners Timken and

Cleveland Electric Illuminating Company submitted

an extensive evaluation of the RAM model, criticizing

the model itself and EPA’s procedures in using the

model, and recommending that EPA modify the model

in several fundamental respects. The firm submitted

three separate analyses, each approximately 175 pages

long, on the use of the RAM model in Stark, Lucas,

2“Pet, App.” refers to the appendix to the petition in

No. 78-83.

5

and Summit Counties.’ In response, EPA reran the

computer analysis for those three counties. EPA ad-

hered to its plan and to the RAM model, with some

modifications. See EPA Supplemental Technical Sup-

port Document: Sulfur Dioxide Control Strategy for

the State of Ohio, May 1977. Petitioners again sought

judicial review.

The court of appeals affirmed EPA’s plan as a

“rational choice” made “well within the [agency’s]

discretion” and specifically upheld EPA’s decision to

use the RAM model (Pet. App. 28a). The court of

appeals held that “[o]ur standard of review of the

actions of United States EPA is whether or not the

action of the agency is ‘arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with

law.’ Clean Air Act Amendments of 1977, Pub.L. No.

95-95, § 305(a), 91 Stat. 775 * * *. Thus, we are re-

quired to affirm if there is a rational basis for the

agency action and we are not ‘empowered to substi-

tute [our] judgment for that of the agency.’ Citi-

zens to Preserve Overton Park v. Volpe, 401 US. 402,

416 (1971)” (Pet. App. 21a.) It found that, under

this standard, EPA’s plan, and specifically its use of

RAM, was rational, neither arbitrary nor capricious,

and within the agency’s discretion (Pet. App. 28a).

The court also rejected petitioners’ “[s]omewhat half-

hearted” argument that the plan was economically

and technologically infeasible (Pet. App. 29a). In ad-

* See Appendix to the Joint Brief Relative to the Use of the

yn Model for excerpts from the analyses, A-47 through

6

dition, the court rejected petitioners’ claim to a right

of cross-examination of EPA personnel. It held that

the notice and comment rulemaking procedures fol-

lowed by EPA and supplemented with the court-

ordered additional comment opportunity met the re-

quirements of the Clean Air Act, the Administrative

Procedure Act, and due process, and that there was

neither a legal nor practical need for any more hear-

ings (Pet. App. 18a). The court also dismissed the

argument, raised by the utility petitioners for the

first time in their reply brief, that the plan was defec-

tive because the variability of sulfur in coal had not

been adequately taken into account. Finally, the court

outlined a procedure for resolving the remaining data

disputes that exist between EPA and petitioners if

such disputes are not resolved by the parties.’

ARGUMENT

The decision of the court of appeals is correct, does

not conflict with any decision of this Court or other

courts of appeals, and does not warrant further

review.

*On June 29, 1978, the court of appeals issued a second de-

cision, this one concerning the emission limitations set for

sources in rural areas of Ohio (No. 78-84, Pet. App. 220). The

court found that EPA had lacked a sufficient rational basis

for the mathematical assumptions used in a model for predict-

ing pollution concentrations in unstable weather conditions,

and it remanded the issue to EPA for further consideration

(id. at 228.) The court also issued several orders regarding

other outstanding issues. That decision is not before this

Court.

7

1, In No. 78-83, petitioner Timken argues (Pet.

10-21) that the notice and comment opportunities did

not allow “any real opportunity for specifically af-

fected parties to comment upon the [RAM] model’s

particularized impact” (Pet. 12). This assertion ap-

pears to rest on Timken’s belief that the RAM model

is so “revolutionary” (Pet. 14) and of such preceden-

tial importance that something more than notice and

comment procedures should have been followed. That

argument, however, is contrary to the facts.

The procedures followed in this rulemaking’ re-

sulted in a thorough scientific dialogue between EPA

experts and industry experts. EPA developed and

released detailed and sophisticated technical support

documents in response to comments submitted by

interested parties. As the court noted, EPA adopted

the RAM model in response to industry criticism that

“the plan then under consideration did not determine

limitations by individual stacks to a sufficient degree”

(Pet. App. 19a). Furthermore, the use of models to

set emission limitations is not an unprecedented or

unexpected maneuver. The courts of appeals have

consistently upheld the use of models after notice

and comment procedures. See Texas v. Environmen-

tal Protection Agency, 499 F.2d 289, 297-301 (C.A.

5), certiorari denied, 427 U.S. 905; South Terminal

Corp. v. Environmental Protection Agency, 504 F.2d

646, 662-663 (C.A. 1); Kennecott Copper Corp. v.

Train, 526 F.2d 1149, 1152, n. 16 (C.A. 9), certiorari

denied, 425 U.S. 935; Sierra Club v. Environmental

Protection Agency, 540 F.2d 1114, 1136 (C.A. D.C.),

8

remanded on other grounds, sub nom. Montana Power

Co. v. E.P.A., 484 U.S. 809. Moreover, in the 1977

Amendments to the Clean Air Act, Congress spe-

cifically approved such models and directed EPA to

use them in individual cases, through legislative-type

rulemaking. Section 165(e)(3), 42 U.S.C. 7475(e)

(3). See also Section 320(d), 42 U.S.C. 7620(d).

There is nothing about the application of the RAM

model in Ohio that requires hearing procedures more

elaborate than Congress requires for the application

of other models.

The most serious shortcoming in Timken’s argu-

ment, however, is that it virtually ignores the fact

that, at the court of appeals’ order, Timken and other

polluters were given the opportunity to comment on

the RAM model and its application in this case. Thus

Timken had a full opportunity to challenge the use

of the model and its application to Timken, and took

advantage of that opportunity by submitting detailed

comments and criticisms.

As the court of appeals properly concluded, “[I]f

there was a legitimate due process complaint arising

from the fact that petitioners had not had a chance to

comment upon the RAM model as employed by [the]

United States EPA in its Ohio SO. control plan, we

believe it was surely cured by this court’s remand for

reopening of the administrative record and United

States EPA’s reconsideration thereafter” (Pet. App.

17a).

Timken now argues that “the reviewing court must

insist that EPA construct a procedure which insures

ee

9

the reliability of technical decisions” (Pet. 13) and

that due process requires that “source specific input

data must be tested against actual conditions * * *”

(Pet. 19.) These contentions are at bottom expres-

sions of Timken’s displeasure with the plan adopted

by EPA. The court of appeals correctly rejected these

arguments: ‘Petitioners have had ample opportuni-

ties to present their views to the agency. A full rec-

ord has been written. There has already been an in-

ordinate delay of five years longer than Congress

contemplated” (Pet. App. 18a).

2. Petitioners Timken (Pet. 22-28) and the utili-

ties (No. 78-84, Pet. 12-15) contend that the court

failed to apply the standard for judicial review estab-

lished by this Court in Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, because it allegedly

failed to give “searching inquiry” (Pet. 22) to

the alleged “failings of the RAM model” (Pet.

25). This contention is simply incorrect. The court

of appeals discussed the RAM model at length ( Pet.

App. 18a-28a) and concluded that RAM, if not per-

fect, was better than anything else now available

(Pet. App. 25a). Petitioners now assert that this con-

clusion was irrelevant, given RAM’s alleged defects

(Pet. 24). The Clean Air Act, however, does not

require perfection,” nor, as the court noted, is

5 Section 110, 42 U.S.C. 7410, requires that control plans be

promulgated to “insure” that the national standards are at-

tained. Accordingly, the plans promulgated throughout the

rest of the country to meet the 1972 deadline of the Act were

developed with whatever analytical tools were available. More-

over, the courts of appeals have consistently recognized that

10

there even technology available to meet such a level

of proof (Pet. App. 26a). Therefore, applying the

standard of Overton Park to promulgation of a con-

trol plan under the Clean Air Act requires only that

EPA rationally select a method of setting emission

limitations. EPA’s decision to use the RAM model to

develop the control plan for urban areas in Ohio

meets that test and was properly affirmed by the court

(Pet. App. 21a, 28a).

The irony of petitioners’ present position is that the

form of computer dispersion modeling selected for de-

veloping the Ohio plan was urged upon EPA, during

the period for comments on EPA’s original plan for

urban Ohio sulfur dioxide pollution, by industry rep-

IPA must resort to less than perfect tools to meet con-

gressional deadlines. In Texas v. Environmental Protection

Agency, supra, the Fifth Circuit affirmed EPA’s use of an

admittedly “unreliable” model to set oxidant pollution emis-

sion limitations, 499 F.2d at 301. Similarly, the First and

Ninth Circuits have upheld the use of imperfect models.

South Terminal Corp., supra, 504 F.2d at 662-668; Ken-

necott Copper Corp., supra, 526 F.2d at 1152, n. 16. In

Sierra Club v. Environmental Protection Agency, supra, 540

F.2d at 1136, the court upheld the use of computer disper-

sion modeling as a rational method for evaluating proposed

new pollution sources and stated that “lack of precision alone”

would not defeat the approach. The First Circuit upheld

EPA’s approval of the loosening of emission limitations for

several sources which had originally been set with a rollback

model based upon the results of a dispersion model analysis.

Mision Industrial, Inc. V. Environmental Protection Agency,

547 F.2d 123, 129 (C.A. 1). EPA must satisfy “judicial in-

sistence on greater reliability.” Texas v. Environmental Pro-

tection Agency, supra, 499 F.2d at 301. The development of

the RAM model responds to this call.

11

resentatives who “strenuously objected” to the use

of less sophisticated models (Pet. App. 21la-22a).

Petitioners’ position is further undercut by the fact

that their consulting firm, whose model petitioners

advocated before the EPA, refused to disclose full

details of that model to EPA on grounds of “pro-

prietary interest” (Pet. App. 26a). Petitioners can-

not have it both ways. Unsatisfied with EPA’s plan,

and unwilling or unable to disclose their own, they

cannot claim that the existence of their own plan

demonstrates that the reviewing court failed to evalu-

ate the EPA plan fully. The court of appeals fully

discharged its responsibilities under Overton Park.

3. Petitioners Timken (Pet. 28-31) and Cleve-

land Electric Illuminating Company (No. 78-84, Pet.

15-16) contend that the court of appeals incorrectly

decided the issue of EPA’s responsibility under Sec-

tion 110(c) to consider the economic and technologi-

eal feasibility of a control plan. However, the court

concluded that, assuming it had authority to consider

such an argument, there was “ample support for the

economic and technological feasibility” of the plan

(Pet. App. 30a). The court did note, citing Union

Electric Co. v. EPA, 427 U.S. 246, 261 n. 7, that there

appears to be an open question whether EPA must

consider feasibility when it promulgates a plan (Pet.

App. 29a-30a). But, because EPA did evaluate in

detail the feasibility of the plan,° and because the

® The economic and technological findings made by the Ad-

ministrator are summarized in EPA’s Final Technical Sup-

port Document (August 1976) at V-1-83, and the Supplemen-

12

court determined that EPA’s conclusion that the plan

was feasible was amply supported, there is no need

for this Court to address the issue here.

4. The utility petitioners (No. 78-84, Pet. 16-17)

contend that the plan violates their due process rights

by failing to set forth the technical means for deter-

mining compliance. They raised this argument for the

first time in their reply brief before the Sixth Circuit,

which did not discuss it. In any event, the objection

is without merit. The plan does specify how eompli-

ance must be demonstrated—through stack emission

tests—and that method has been included in the plan

throughout the rulemaking. See 40 C.F.R. 52.1881

(b) (2) (iii) (No. 78-84, Pet. App. 133-1384) and 40

C.F.R. 60.46 (No. 78-84, Pet. App. 217-218). In addi-

tion, subsequent to oral argument, EPA published a

policy statement (43 Fed. Reg. 6646) (No. 78-84, Pet.

App. 218-219) setting forth an alternative method

for certifying compliance with the plan’s emission

tal Technical Support Document, supra, at 16-88. See also

“Inflationary Impact Statement on Sulfur Oxide Regulations

for Ohio,” Volumes 1-11, Record Index IX.I.1-11; “Evaluation

of the Technological Feasibility and Cost of Selected Control

Alternatives Necessary to Meet Proposed Ohio SO, Regula-

tions for Industrial Boilers and Processes,” GCA-Technology

Division, Nine Volumes, Record Index IX.D.1-21; and “Eval-

uation of the Technological Feasibility and Cost of Selected

Control Alternatives Necessary for Power Plants to Meet the

Proposed Ghio SO, Regulations,” PEDCo Environmental Spe-

cialists, Fourteen Volumes, Record Index IX.E.1-14. In addi-

tion, many of these reports were revised in light of comments

submitted during the remand period. Supplemental Record

Index SV.J.1-8.

13

limitations. The alternative method was provided ‘“‘to

eliminate the necessity of conducting a stack test on

every emitting source in Ohio.” /bid.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.,

Solicitor General.

JAMES W. MOORMAN,

Assistant Attorney General.

EDWARD J. SHAWAKER,

PAUL M. KAPLow,

Attorneys.

JOAN Z. BERNSTEIN,

General Counsel.

RONALD C,. HAUSMANN,

Attorney,

Environmental Protection Agency.

SEPTEMBER 1978.

WU. S. GOVERNMENT PRINTING OFFICE; 1978 273697 125