Opposition — Shell Oil Co. v. Environmental Protection Agency

Nos. 78-535 and 78-536

Iu the Suyrreme Court of the Th

OCTOBER TERM, 1978

SHELL OIL COMPANY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

CINCINNATI GAS & ELECTRIC CoO., ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO 1HE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

BRADFORD F. WHITMAN

JOAN Z. BERNSTEIN PAUL M. KAPLOW

General Counsel Attorneys

Department of Justice

RONALD C. HAUSMANN Washington, D.C. 205380

Attorney

Environmental Protection Agency

Washington, D.C. 20460

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CITATIONS

Cases:

Citizens to Preserve Overton Park, Inc. v.

I I PA, I ac cacennessmsencccce

Cleveland Electric Illuminating Co. v.

EPA, No. 78-84, cert. denied, October

EES

Kennecott Copper Corp. v. Train, 526 F.2d

1149, cert. denied, 425 U.S. 935 ............

Sierra Club v. EPA, 540 F.2d 1114, re-

manded on other grounds sub nom.

Montana Power Co. v. EPA, 434 U.S.

SE TEES A eo

EET SEE A Ee et oo

Texas v. EPA, 499 F.2d 289, cert. denied,

ESTEE Se

Timken Co. v. EPA, No. 78-83, cert. de-

nied, October 16, 1976 ...............ccre..c00--

Train v. Natural Resources Defense Coun-

(Ee

“I ~we we Ww wo

Statutes : Page

Clean Air Act, formerly 42 U.S.C. (1970

OG.) Biles 06 OOM, ciicseeenccoeens 2

Clean Air Amendments of 1970, Pub. L.

No. 91-604, 84 Stat. 1676, 42 U.S.C.

(1970 ed.) 1857 et seq. .........22.----0-c000---- 2

Clean Air Act Amendments of 1977, Pub.

L. No. 95-95, 91 Stat. 685, 42 U.S.C.

7401 et seq.:

Section 110, 42U.S.C. 7410 ................ 11

Section 110(a) (2), 42 U.S.C. 7410

COD COED scisinccccnes-cabeortiaelincashicbinstctndeianna 7

Section 110(c), 42 U.S.C. 7410(c) .... 3

Section 123, 42 U.S.C. 7428 ................ 13

Section 307(b)(1), 42 U.S.C. 7606

HATES oe ee 4

Miscellaneous:

(EPA Final Technical Support Document

CAM TIT GD » sxiisccccwcenicitiinimastictaiaiasiioal 4,10, 13

EPA Supplemental Technical Support

Document: Sulfur Dioxide Control

Strategy for the State of Ohio (May

RIPT UD, contontaabiseendieaneinnndaumebdcnmmtachaseicuas 4, 8,9, 10

40 Fed. Reg. 52410 (1975) ..........2...-..ec0-0 3

41 Fed. Reg. 36324 (1976) -....02.2202.2..-.200 4

H.R. Rep. No. 95-294, 95th Cong., 1st

NG. STEP acecccedeecticecobnioetatnnciihs 13

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-535

SHELL OIL COMPANY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 78-536

CINCINNATI GAS & ELECTRIC Co., ET AL., PETITIONERS

v.

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 FEDERAL RESPONDENTS

IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (78-535 Pet.

App. la-12a; 78-536 Pet. App. la-12a) is reported

at 578 F.2d 660.

JURISDICTION

The judgment of the court of appeals was entered

on June 29, 1978. The petitions for a writ of certio-

rari were filed on September 27, 1978. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the court of appeals adequately re-

viewed EPA’s plan for the control of air pollution

from rural area sources.

2. Whether a remand is required to permit EPA

to give additional consideration to pctitioncr Sheii’s

claim that allowable sulfur dioxide emissions should

be expressed in pounds-per-hour rather than in the

terms adopted by EPA (No. 78-535).

STATEMENT

In the Clean Air Amendments of 1970, Pub. L. No.

91-604, 84 Stat. 1676, 42 U.S.C. (1970 ed.) 1857 et

seq., Congress directed each state to establish a plan

for the control of air pollution by 1972. See Train v.

Natural Resources Defense Council, 421 U.S. 60

(1975). The State of Ohio, however, failed to develop

‘The Clean Air Act (formerly 42 U.S.C. (1970 ed.) 1857 et

seq.) is now 42 U.S.C. 7401 et seq. See Clean Air Act Amend-

ments of 1977, Pub. L. No. 95-95, 91 Stat. 685.

3

a plan for the control of sulfur dioxide pollution and,

accordingly, as required by Section 110(c), 42 U.S.C.

7410(c), EPA published its proposed plan on Novem-

ber 10, 1975 (40 Fed. Reg. 52410 (1975)). At the

same time it released for public review and comment a

two-volume technical support document of approxi-

mately 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 ad-

ministrative record of several thousand pages.

As a result of these comments and others presented

at the public hearings, EPA made certain modifica-

tions in the proposed plan. Among these was a change

in the method of determining emission limitations for

pollution sources located in rural areas with hilly

terrain. EPA made an adjustment to its Second

Maximum 24-Hour Dispersion Model (“MAX-24”),

the mathematical computer model used to simulate

pollution from isolated point sources in rural areas.

The result was the Second Maximum 24-Hour Disper-

sion Model with Terrain Adjustments (“MAXT-24”),

which includes an adjustment designed to compensate

for an overprediction of sulfur dioxide emissions that

had been revealed in validation studies comparing the

predictions of the original model against actual air

quality monitor data (Pet. App. 8a-10a).* On August

*“Pet. App.” refers to the appendix to the petition in No.

78-535.

d

27, 1975, the Administrator promulgated the control

plan for sulfur dioxide emissions in Ohio (41 Fed.

Reg. 36324 (1976)) and released a second technical

support document of approximately 1,260 pages, which

evaluated the comments and explained the changes

that had been made in the plan in response to com-

ments (EPA Final Technical Support Document (Au-

gust 1976)). ;

Petitioners and others sought judicial review of the

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

42 U.S.C. 7606(b) (1). On November 14, 1976, after

a hearing and upon consideration of motions to stay

enforcement of the plan, the court sua sponte ordered

that the administrative record be reopened and that

those seeking review be allowed 60 days to comment

on the plan as promulgated. See Pet. App. 23a-25a.

Each of the petitioners submitted written com-

ments, and on May 27, 1977, EPA completed its con-

sideration of the comments and filed with the court

of appeals a memorandum accompanied by a third

technical support document, EPA Supplemental Tech-

nical Support Document: Sulfur Dioxide Control

Strategy for the State of Ohio (May 1977). Thirty-

two companies, including petitioners, again sought

judicial review.

The court of appeals issued two decisions. Its first

decision, issued on February 13, 1978, concerned

“general issues” applicable to all the companies (Pet.

App. 18a). The court of appeals held that the EPA

hearings on the control plan were procedurally ade-

quate, and it approved EPA’s use of the Real-Time

5

Air-Quality-Simulation Model (“RAM”’’) to set emis-

sions standards for pollution sources in urban areas.

Use of the model was, the court held, a “rational

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

(Pet. App. 44a).

The court of appeals noted:

Our 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 dis-

cretion, or otherwise not in accordance with law.”

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

95-95, Sec. 305(a), 91 Stat. 775 * * *. Thus, we

are required to affirm if there is a rational basis

for the agency action and we are not “empow-

ered to substitute [our] judgment for that of the

agency.” Citizens to Preserve Overton Park vy.

Volpe, 401 U.S. 402, 416 (1971).

Pet. App. 37a.°

In its second decision, issued on June 29, 1978, the

court of appeals reviewed the methods EPA used to

set emission limitations for pollution sources in rural

areas (Pet. App. la-12a). The court stated that the

MAXT-24 model “strongly resembles” the RAM model

in certain respects, that the court’s comments on the

RAM model in the first decision “are largely appli-

cable to EPA’s adoption of MAXT-24,” and that, with

one exception, “EPA’s adoption and use of the MAXT-

24 model is not arbitrary or capricious and, like the

*On October 16, 1978, this Court denied the petitions for

certiorari to review the February 18, 1978, decision. Timken

Co. v. EPA, No. 78-83, and Cleveland Electric Illuminating

Co. v. EPA, No. 78-84.

6

use of the RAM model, must be affirmed by this

court” (Pet. App. 3a-4a).

The court noted that none of the petitions before

it “seriously disputes the general validity of the

MAXT-24 model” (Pet. App. 4a). Rather, petition-

ers’ complaints focused on applications of the model

to rural pollution sources under two specific condi-

tions (ibid.). The court of appeals first reviewed the

method EPA followed for determining pollution dis-

persion in unstable weather conditions (Class A Con-

ditions) and concluded that EPA had not developed

a sufficient record to support its method (Pet. App.

4a-8a). The court remanded the issue to EPA for

further consideration (Pet. App. 8a).

The court next reviewed EPA’s adjustment to the

model for determining emission limitations for sources

situated in hilly terrain and affirmed EPA’s decision

(Pet. App. 8a-lla). As noted earlier (page 3,

supra), EPA had adjusted the basic rural MAX-24

model in response to comments on its originally pro-

posed emission control plan. During the additional

comment period ordered by the court of appeals, peti-

tioners objected to EPA’s terrain adjustment method

and proposed a different one. While the court of

appeals found that “the record does not establish con-

clusively” that the EPA method would satisfactorily

solve the problem posed, the court found that, on the

record before it, the “present terrain adjustment” in

the model was neither arbitrary nor capricious (Pet.

App. lla). Finally, the court of appeals reviewed and

affirmed the agency’s decision to express emission

7

limitations in pounds of sulfur dioxide per MBTU

(Million British Thermal Units) of heat input rather

than, as Shell had suggested, in pounds emitted per

hour. The court found this to be a policy decision

within the agency’s administrative discretion and con-

sistent with the requirement of the Act that the plan

“insure attainment and maintenance” of the national

ambient air quality standards. Section 110(a) (2), 42

U.S.C. 7410(a) (2) (Pet. App. 12a).

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 review.

1. Petitioners contend that EPA and the court of

appeals did not adequately consider certain objections

to the use of the MAXT-24 model to set sulfur dioxide

emission limitations for plants in rural areas. The

record shows otherwise. EPA extensively explained

and justified its use of the basic MAX-24 model and

its modification, the MAXT-24, and the court of ap-

peals, considering all of petitioners’ objections, cor-

rectly concluded that, with the exception of the model’s

application to plume dispersion in unstable weather

conditions, “EPA’s adoption and use of the MAXT-24

model is not arbitrary or capricious” (Pet. App. 4a).

See Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 416 (1971).

a. Petitioners Shell (78-535 Pet. 6-11) and the

utilities (78-536 Pet. 5-13) specifically contend that

the court of appeals did not adequately consider

8

EPA’s adjustment of its model to account for plume

dispersion in hilly terrain. Shell (78-535 Pet. 7-9)

generally faults the court for failing to agree with

Shell that EPA’s response to Shell’s objections to the

adjustment was “nonresponsive” and that the adjust-

ment itself was “unsupported.” The utilities attack

the court for failing to remand the terrain adjust-

ment issue in light of an alleged concession by EPA

that the “underlying rationale” for the adjustment

was “erroneous” (78-536 Pet. 12). In fact, EPA

articulated a rationale for its terrain adjustment and

did not thereafter concede that the rationale was

erroneous. In response to comments on the original

MAX-24 model, EPA determined that the model had

tended to overstate observed ground-level pollution

concentrations for sources situated in hilly terrain.

EPA then made a mathematical adjustment to the

model to bring it into conformity with the data used

in the original validation studies of the MAX-24

model. This adjustment was explained by EPA (Sup-

plemental Technical Support Document, supra, at 55).

The concession referred to by the petitioner utilities

was not a concession that the rationale for the adjust-

ment was erroneous, 7.e., that the adjustment did not

bring the model into conformity with the data used

in the original validation studies. It was simply a

correction of a statement in the technical support

document that had implied that additional validation

studies had been done of the model after the terrain

adjustment was made (see Pet. App. lla). Petition-

ers’ own suggestion for a different terrain adjustment

9

was considered by EPA and rejected because it was

supported by no data indicating that it would be a

superior method of adjusting for hilly terrain. Sup-

plemental Technical Support Document, supra, at 55.

The court of appeals correctly concluded (Pet. App.

lla) that EPA was not obliged to forego using its

own solution of the terrain problem in the absence of

evidence that another solution would prove to be more

reliable.

b. In No. 78-535, petitioner Shell states (Pet. 5,

12) that certain monitor data measured at particular

points in the vicinity of its chemical manufacturing

plant in rural southeastern Ohio show that there is

no need for reducing the sulfur dioxide emissions

from the plant. Shell contends (Pet. 5-6, 10, 12) that

EPA’s MAXT-24 model could be altered, by expand-

ing the form of the Gaussian plume equation incor-

porated in the model, to predict emissions in accord-

ance with those monitor data, and that both EPA

and the court of appeals failed to give adequate con-

sideration to this objection to the MAXT-24 model.

This contention is without merit.

The basic rural model was tested in validation

studies using data from several plants. Both it and

the terrain-adjusted model were, like all such models,

intended to serve as a consistent and efficient means

of setting emissions standards for a large number

of facilities. Shell’s argument for revising the Gaus-

sian plume equation used in the model is essentially

an argument that its plant should have its own model,

drawn up in accordance with monitor data for the

10

plant that may or may not be reliable.‘ In response

to objections made during the additional comment

period ordered by the court of appeals, EPA ex-

plained at length the reasons why monitor data

alone cannot be relied on to determine whether or

not pollution sources must reduce emissions to in-

sure attainment and maintenance of the national

ambient air quality standards. Supplemental Tech-

nical Support Document, supra, at 4-16. The court

of appeals, therefore, did not err in finding “no merit

to objections based on failure to calibrate the MAXT-

24 model (or failure to reject its results because of

claims of overprediction as demonstrated by some

monitor readings)” (Pet. App. 1la-12a).

- ¢@. In sum, the court of appeals considered peti-

tioners’ technical objections to the MAXT-24 model

and effectively determined that EPA’s position on

those matters did not constitute a “clear error of

judgment.” Citizens to Preserve Overton Park, Inc.

v. Volpe, supra, 401 U.S. at 416.’ Petitioners’ con-

‘There were, in fact, serious problems with the monitor

data on which Shell relied to support its view that the model

should be changed. Shell’s own monitor data came from a

short-lived (June-August 1976) program with continual

changes of the sampling site (Appendix to EPA’s brief in

the court of appeals, Vol. 4, at 284), and the state monitor data

were of only slight value because the closest monitor to the

Shell plant was nearly 15 kilometers away (Final Technical

Support Document, supra, Vol. Il, Appendix G, at G-10).

° Petitioners’ contention (78-585 Pet. 11; 78-536 Pet."9, 12)

that the court of appeals’ review of the issues presented,to it

was deficient under the Overton Park standard is therefore

11

tentions that the court did not adequately review

EPA’s response to their objections to the MAXT-24

model finally come down to a disagreement with the

court of appeals’ conclusion in its February 13, 1978

decision (Pet. App. 42a-44a), incorporated by ref-

erence in the decision challenged here (Pet. App. 4a,

12a), that EPA cannot be held to have acted arbi-

trarily and capriciously simply because it employed

a model that may fall short of “predictive perfec-

tion” (Pet. App. 48a). We submit that the court of

appeals’ conclusion is reasonable, and that peti-

tioners’ arguments regarding particular criticisms of

the MAXT-24 model do not warrant further review

by this Court.*

incorrect. Nor do any of the other cases relied on by peti-

tioners (78-535 Pet. 11-12; 78-536 Pet. 9-11) conflict with

the standard of review employed here by the court of appeals.

®* Section 110 of the Act, 42 U.S.C. 7410, requires that

control plans be promulgated to “insure that the national

standards are attained.” Accordingly, the plans promulgated

throughout the country to meet the 1972 deadline of the Act

were developed with whatever analytical tools were available.

Moreover, the courts of appeals have consistently recognized

that EPA must resort to less than perfect tools to meet con-

gressional deadlines. In Texas v. EPA, 499 F.2d 289, 301

(1974), cert. denied, 427 U.S. 905 (1976), the Fifth Circuit

affirmed EPA’s use of an admittedly “unreliable” model to set

oxidant pollution emission limitations, 499 F.2d at 301. Sim-

ilarly, the First and Ninth Circuits have upheld the use of

imperfect models. South Terminal Corp. v. EPA, 504 F.2d

646, 662-663 (1st Cir. 1974); Kewnecott Copper Corp. V.

Train, 526 F.2d 1149, 1152 n.16 (9th Cir. 1975), cert. denied,

425 U.S. 9385 (1976). In Sierra Club v. EPA, 540 F.2d 1114,

1136 (D.C. Cir. 1976), remanded on other grounds sub nom.

Montana Power Co. v. EPA, 434 U.S. 809 (1977), the court

12

2. In No. 78-535, Shell contends (Pet. 8-10) that

the court did not properly review EPA’s decision to

express emission limitations in terms of pounds of

sulfur dioxide per MBTU of heat input rather than

pounds per hour, as Shell had proposed. Shell con-

cludes that a remand to EPA on this issue is required.

The court, however, reviewed Shell’s proposal and

found that either it would yield less accyrate results

or it would pose an “impossible” enforcement task

(Pet. App. 12a).

This is not an unreasonable conclusion. EPA had

expressed concern that, if Shell’s proposed measure-

ment was used, Shell would be able to burn poor

quality fuel (fuel with high sulfur content) at low

combustion, or operating, rates, and thus meet emis-

sions standards while violating ambient air stand-

ards. This might occur because at low operating

rates, ground level concentrations of sulfur dioxide

would increase as a result of the low plume rise

associated with those operating rates. Supplemental

Technical Support Document, supra, at 92-94. To

avoid this impact on air quality, EPA would be

required to adjust its model to determine effects at

the different operating capacities, and to modify

emissions limitations accordingly. Jbid. Shell’s re-

sponse (Pet. 7) was that it had installed heat ex-

changers in its stacks to “keep plume dispersion

upheld the use of computer dispersion modeling as a rational

method for evaluating proposed new pollution sources and

stated that “lack of precision alone’ would not defeat the

approach.

13

capabilities equalized at all operating rates.” This

representation concerning Shell’s equipment, how-

ever, provides no assurance that its emissions meas-

urement proposal would constitute an easily enforce-

able, consistent system for specifying emissions limi-

tations, especially at other plants subject to the con-

trol plan. EPA’s concern for enforceability was ap-

parent in the way it designed and justified most as-

pects of the control plan (see, e.g., Final Technical

Support Document, supra, Vol. I, at 34-41), and the

court properly found this consideration an adequate

ground for upholding EPA’s decision not to replace

its preferred emissions limitation measurement with

that proposed by Shell.’

*In any event, even assuming that heat exchangers like

those used by Shell would be a generally feasible means of pro-

tecting against violation of ambient air standards, they con-

stitute dispersion techniques, which under a provision in the

Clean Air Act Amendments of 1977, enacted after EPA issued

its Supplemental Technical Support Document, cannot be per-

mitted to affect emissions limitations. Section 123, 91 Stat. 721,

42 U.S.C. 7423, provides that “the degree of emission limita-

tion required for control of any air pollutant” under a control

plan “shall not be affected in any manner by (1) so much of

the stack height of any source as exceeds good engineering

practice * * *, or (2) any other dispersion technique” (em-

phasis added). The House Report on these amendments indi-

cates that one reason for this stricture was to maintain an

“incentive for development of systems potentially capable of

clean burning of coal—such as fluidized bed combustion.” H.R.

Rep. No. 95-294, 95th Cong., 1st Sess. 88 (1977). The report

also speaks of the desirability of using more low-sulfur coal.

Id. at 89.

14

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

BRADFORD F. WHITMAN

PAUL M. KAPLOW

Attorneys

JOAN Z. BERNSTEIN

General Counsel

RONALD C. HAUSMANN

Attorney

Environmental Protection Agency

DECEMBER 1978

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