Petition — Harrison v. PPG Industries, Inc.

Supreme Court, U. y |

eA: FILED

if ow ™ u 4

“415 48 JUN 25 1979 |

JR., ©

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

ADLENE HARRISON, REGIONAL ADMINISTRATOR,

AND DOUGLAS COSTLE, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY,

PETITIONERS

Vv,

PPG INDustRIEs, INC.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

WADE H. McCREE, Jr.

Solicitor General

JAMES W. MoorMAN

Assistant Attorney General

WILLIAM ALSUP

Assistant to the Solicitor General

EDWARD J. SHAWAKER

MARYANN WALSH

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

Opinions below ............. 1

EERE ARGC RS 1a STO nS See eE 2

aioe hsenecldinigamsionniaiosonasines 2

Statutes involved ....................----. 2

ENE EEE OE i eR 3

Reasons for granting the petition -................... 7

Conclusion ..... 14

RIEIIEE, T. -schipssttieniinseniposininenctanesntesricinesennanteeaooane la

TIE -tikicinenssithinpnssiaicincsiitts 22a

IIE EP xtscrnatndeoetnens ... 208

a 25a

PIE. TIF cistncteaineccscnmesncn 27a

Appendix F ........... 3la

Appendix G ...... ; sable 34a

CITATIONS

Cases:

Abbott Laboratories v. Gardner, 387 U.S.

Ree eis ES thes .. 8-9

Camp v. Pitts, 411 U.S. 188 ......0..... 11

Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, on remand, 335

I IEE iscsi dhacanedinnndecitemvamccnenciin 11, 12

FPC v. Transcontinental Gas Pipe Line

Rs ME I, I oe acceencensedocennitenine 11

Gardner v. Toilet Goods Ass’n, 387 U.S.

A eR RS 9

II

Cases—Continued Page

Greyhound Corp. v. Mt. Hood Stages, Inc.,

TN ce 8 og ae 10

Save the Bay, Inc. v. Administrator, 556

a a 11

Toilet Goods Ass’n v. Gardner, 387 U.S.

RE We PES a IE ae 9

zvam v¥. NRDC, 421 U.S. @ .................... 4

United States Steel Corporation v. EPA,

No. 78-1922 (May 3, 1979) .................... 13

Statutes and regulations:

Clean Air Act, Section 307(b)(1), 42

U.S.C. 1857h-5 (b) (1) ................---- 5, 8, 9, 12, 13

Clean Air Act, as amended by the Clean

Air Act Amendments of 1977, Pub. L.

No. 95-95, 91 Stat. 685, to be codified

at 42 U.S.C. 7401 et seq.:

Section 107, 42 U.S.C. 7407 -..000...... 13

Section 111, 42 U.S.C. 7411 —.000....

Section 111(a)(2), 42 U.S.C. 7411

ag, BR CE

Section 111(b)(1)(A), 42 U.S.C.

Sh OV FE 5 Sanne Sr Ciera aan

Section 111(e), 42 U.S.C. 7411(e)....

Section 111(j), 42 U.S.C. 7411(j).... 7

Section 112(c), 42 U.S.C. 7412(¢e).... 7

Section 113, 42 U.S.C. 7418 _............ 7

Section 113(d), 42 U.S.C. 7413(d)....

Section 119, 42 U.S.C. 7419 0.00...

Section 120, 42 U.S.C. 7420 _............

Section 165, 42 U.S.C. 7476 _............

Section 207(c), 42 U.S.C. 7541(c)....

Section 307(b) (1), 42 U.S.C. 7607

IEEE “wéctsiiastlsitanennnncaiuiacas 2, 4, 5, 6, 7, 8, 12

eo

—_ “

wwnrsrs OOO CO W

Il

Statutes and regulations—Continued Page

Magna Carta, ¢.23, reprinted in 6 Hals-

bury's Statutes of England (3d ed.

EE: sivelernlibinniiilanteabipdaie ts tata 12

oh 8 ee ee 3

gL | ER ere 4,7, 8,10

a S| EIRENE Ce ee 4

40 C.F.R. 60.40-60.46 2 3

40 C.F.R. 60.42-60.45 200 4

Miscellaneous:

36 Fed. Reg. 5931 (1971) 00... 3

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

CUE ED wcinciensviactbiiennialapnelaeiicsinmmid seksi. 10

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No.

ADLENE HARRISON, REGIONAL ADMINISTRATOR,

AND DOUGLAS COSTLE, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY,

PETITIONERS

Vv.

PPG INDUSTRIES, INC.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

The Solicitor General, on behalf of the Administra-

| tor and Regional Administrator of the Environmental

) Protection Agency, petitions for a writ of certiorari

to review the judgment of the United States Court

of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra) is reported at 587 F.2d 237. The final deci-

(1)

2

sion of the Administrator (App. F, infra) is unre-

ported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on January 8, 1979. A timely

petition for rehearing was denied on February 26,

1979. On May 23, 1979, Mr. Justice Powell extended

the time within which to file a petition for a writ of

certiorari to and including June 26, 1979. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether the court of appeals has original juris-

diction under Section 307(b)(1) of the Clean Air

Act, 42 U.S.C. 7607(b) (1), to review a final action

by the Administrator applying new-source perform-

ance standards to certain power generating facilities.

STATUTES INVOLVED

Section 307(b)(1) of the Clean Air Act, as

amended by the Clean Air Act Amendments of 1977,

Pub. L. No. 95-95, 91 Stat. 776 (to be codified at 42

U.S.C. 7607(b) (1)), provides in pertinent part:

A petition for review of the Administrator’s

action in approving or promulgating any imple-

mentation plan under section 110 or section

111(d), any order under section 111(j), under

section 112(c), under section 113(d), under sec-

tion 119, or under section 120, or his action

under section 119(c)(2)(A), (B), or (C) (as

in effect before the date of enactment of the

Clean Air Act Amendments of 1977) or under

i aaa aia

3

regulations thereunder, or any other final action

of the Administrator under this Act (including

any denial or disapproval by the Administrator

under title I) which is locally or regionally ap-

plicable may be filed only in the United States

Court of Appeals for the appropriate circuit.

STATEMENT

1. Section 111 of the Clean Air Act directs the

Administrator of EPA to set standards of emissions

performance for all “new sources” of air pollution.

42 U.S.C. 7411. A “new source” is defined as “any

stationary source, the construction or modification of

which is commenced after the publication of regula-

tions (or, if earlier, proposed regulations) prescrib-

ing a standard of performance under this section

which will be applicable to such source.” 42 U.S.C.

7411(a)(2). The Administrator is directed to pub-

lish, from time to time, a list of stationary sources

which he determines may contribute significantly to

air pollution endangering the public health or wel-

fare, and thereafter to publish standards of perform-

ance for new sources in each category. 42 U.S.C.

7411(b) (1) (A).

On March 31, 1971, the Administrator published

an initial list of stationary sources that included

“fossil fuel-fired steam generators.” 36 Fed. Reg.

5931 (1971). Later that year, regulations for this

category were published and became effective on

August 17, 1971. See 40 C.F.R. 60.1-60.15 and

60.40-60.46. The regulations set effluent limita-

tions, depending on the heat generating capac-

ity of the new source. 40 C.F.R. 60.42-60.45. The

regulations provide that any owner or operator may

apply to the Administrator for a determination of

whether action taken or intended to be taken by the

owner or operator constitutes “construction” subject

to the act and the regulations. 40 C.F.R. 60.5. Sec-

tion 307(b) (1), 42 U.S.C. 7607(b) (1), provides that

a petition for review of “any” “final action” of the

Administrator may be filed only in the court of ap-

peals. See generally Train v. NRDC, 421 U.S. 60

(1975).

2. PPG Industries, Inc., a chemical manufactur-

ing corporation, constructed a new power facility in

Louisiana utilizing a coordinated system of two gas

turbine generators combined with two “waste heat”

boilers.’ The turbines and boilers are fossil-fuel fired

(App. E, infra). EPA informed the company in

October 1976 that the new-source performance stand-

ards for stationary sources (NSPS), 40 C.F.R. 60.40,

applied to the waste-heat boilers (App. C, infra).

In April 1977 PPG submitted a request for a determi-

nation under 40 C.F.R. 60.5 that construction of the

waste heat boilers commenced prior to the effective

date of the regulation (so that the boilers were not

“new sources’), or, in the alternative, a determina-

tion that the NSPS regulations are inapplicable al-

together to “‘wasve-heat” boilers (App. E, infra).

EPA determined, however, by letter of June 8, 1977,

1 The gas turbines produce electricity. The “waste heat’

boilers utilize the exhaust heat from the gas turbines and the

combustion of additional fossil fuels to produce steam for use

in PPG’s chemical processing.

that the two boilers were new sources subject to the

regulations (App. F, infra). On August 18, 1977,

EPA clarified its decision and required PPG to install

continuous in-stack opacity monitors (App. G, infra).

3. On October 4, 1978, PPG filed a petition for

judicial review of this determination in the court of

appeals. Shortly thereafter, PPG also filed a com-

plaint against petitioners in the United States Dis-

trict Court for the Western District of Louisiana for

an injunction and a declaratory judgment invalidat-

ing the agency’s ruling. PPG Industries v. Costle,

Civ. Action No. 77-1271 (W.D. La.). PPG then chal-

lenged the jurisdiction of the court of appeals to

review EPA’s determination. EPA contended that

every “final action” of the Agency, including the

determination in this case, is reviewable exclusively

by the court of appeals under Section 307(b) (1). The

Fifth Circuit disagreed, holding that “any other final

action” in Section 307(b) (1) did not include EPA’s

determination. The court did not reach the merits.

The court based its jurisdictional holding on three

arguments. First, the court noted that prior to the

1977 amendment to Section 307(b), “the district

courts and not the courts of appeals had jurisdiction

[under 28 U.S.C. 1331] to review determinations of

[such] local applications * * *” (App. A, infra,

lla).? Although the 1977 amendment added the

2Prior to amendment, Section 307(b)(1), 42 U.S.C.

1857h-5 (b) (1), provided:

A petition for review of action of the Administrator in

promulgating any national primary or secondary ambient

air quality standard, any emission standard under sec-

tion 112, any standard of performance under section 111

6

phrase “any other final action” to the statutory list

of items to be reviewed by the courts of appeals, the

court thought that it was “most revealing” that the

legislative history of this amendment made no ref-

erence to any “massive shift of jurisdiction to the

courts of appeals” (id. at 15a). This silence suggested

to the court that Congress did not really mean to

shift review of numerous “local determinations” by

EPA to the court of appeals. Second, pointing out

that the administrative record here consists exclu-

sively of correspondence, the court stated that an

administrative determination based on “a skeletal

record” should be reviewed by the district court in

the first instance so that “[t]he discovery apparatus

of district courts” could permit “fact and record

development.” Congress, the Fifth Circuit noted (id.

at 20a-21a), must have inserted “any other final ac-

tion” into Section 307(b) (1) with the “mechanical

any standard under section 202 (other than a standard

required to be prescribed under section 202(b) (1)), any

determination under section 202(b) (5), any control or

prohibition under section 211, or any standard under

section 231 may be filed only in the United States Court

of Appeals for the District of Columbia. A petition for

review of the Administrator’s action in approving or

promulgating any implementation plan under section

110 or section 111(d), or his action under section

119(c)(2)(A), (B), or (C) or under regulations there-

under, may be filed only in the United States Court of

Appeals for the appropriate circuit. Any such petition

shall be filed within 30 days from the date of such promul-

gation, approval, or action, or after such date if such

petition is based solely on grounds arising after such 30th

day. [Emphasis added. ]

7

limitations of the courts of appeals in mind.” Finally,

the court noted that Section 307(b)(1) specifically

enumerates certain determinations for review in the

court of appeals before adding the phrase “and any

other final action.” This enumeration, the court

thought, would be redundant if “any other final ac-

tion” literally comprehended any final action (App.

A, infra, 15a). Therefore, the Fifth Circuit held that

Section 307(b) (1)’s “any other final action” did not

include a determination under 40 C.F.R. 60.5 that a

specific facility is a new source.

REASONS FOR GRANTING THE PETITION

1. The decision of the court of appeals is incorrect.

Prior to the 1977 amendment, Section 307(b) (1)

provided that certain specifically enumerated actions

0. nationwide consequence were reviewable in the

District of Columbia Circuit and that analogous

local actions were reviewable in the appropriate re-

gional circuits. The amendment added to the list of

actions reviewable exclusively in the District of Co-

lumbia Circuit the promulgation of any rule issued

under Sections 113, 119 or 120, and “any other na-

tionally applicable regulations or final action taken”

under the Act. In parallel fashion, the amendment

added to the list of EPA actions reviewable in the

appropriate regional court of appeals the promulga-

tion of any order under Sections 111(j), 112(c),

113(d), and 120, and “any other final action of the

Administrator” under the Clean Air Act “which is

locally or regionally applicable.” Congress, therefore,

S ®

clearly meant to confine review of all “final actions”

in the courts of appeals.

a. EPA’s determination that PPG’s boilers are

subject to its new-source regulations is a “final ac-

tion” within the meaning of Section 307(b).° First,

short of an enforcement action, the agency has ren-

dered its final word on the matter. PPG applied for

a formal determination under 40 C.F.R. 60.5 con-

cerning whether its facility is subject to the new-

source regulations. After consideration of PPG’s

submissions, including a law memorandum, EPA

determined that the facility is subject to the regu-

lations. PPG’s disagreement with that determination

turns only on an interpretation of the new-source

regulations and their application to undisputed facts.

No further administrative appeals remain and, un-

less PPG honors EPA’s ruling, it will be enforced

through enforcement proceedings under Section 113,

42 U.S.C. 7413. Second, one of the purposes of pre-

enforcement review is to permit prompt review of an

agency’s final decision before the applicant acts at

its peril. That purpose would be served here. See

generally Abbott Laboratories v. Gardner, 387 U.S.

8 Section 307(b) (1) requires that petitions for review be

filed within 60 days “from the date notice of such promulga-

tion, approval or action appears in the Federal Register

* * *.”” EPA has informed us that it has not routinely pub-

lished in the Federal Register notice of actions such as the

determination made in this case, but that it intends to begin

doing so in the near future. (EPA did not publish the PPG

determination). The only effect of this lapse would seem to be

a tolling of the running of the 60-day limitation on review.

9

136, 148-156 (1967); Gardner v. Toilet Goods Ass’n,

387 U.S. 167, 170-174 (1967); Toilet Goods Ass’n v.

Gardner, 387 U.S. 158, 164-165 (1967).

Third, the EPA’s determination in this case is akin

to other types of actions specifically considered “final’’

under Section 307(b). For example, Section 307 (b)

makes “orders” under Section 112(c) reviewable only

in the courts of appeals. Section 112(c) prohibits the

construction of any new source which will, “in the

Administrator’s judgment” emit “hazardous air pol-

lutants” for which the Administrator has set a stand-

ard unless, among other things, “the Administrator

finds that such source if properly operated will not

cause emissions in violation of such standard * * *.” *

An inquiry to the Administrator for his “judgment”

whether a facility would emit hazardous air pollut-

ants and, if so, for his determination that its proper

4 Similarly, Section 307(b) permits review in the court of

appeals of “any order under section 111(j).” Section 111(e)

prohibits the operation of new sources in violation of the

new-source standards. Section 111(j) allows “[a]ny person

proposing to own or operate a new source” to “request the

Administrator for one or more waivers” in order to “encour-

age the use of an innovative technological system or systems

of continuous emission reduction.” The Administrator may

grant the request after a public hearing. He may deny it with-

out a hearing. Such “orders” are reviewable under Section

807(b). Once again, a denial of such a request is akin to a

denial of PPG’s request for a determination that its facility

is not subject to the new source regulations at all. The activity

in question has not yet occurred but is known. It is important

to the requesting party to have a final agency determination

and judicial review of the determination before proceeding

at its peril.

10

operation would meet the specified effluent levels, is

very similar to PPG’s request under 40 C.F.R. 60.5

for a determination that its proposed boilers would

not be covered by the new-source regulations. In

both cases, the new source is not yet operational but

the pertinent facts are known. In both cases, no

formal hearing is held. In both cases, the applicant

has a legitimate need for a final resolution before it

proceeds at its peril.

6. The Fifth Circuit’s contrary view is not persua-

sive. The court was moved by the absence of any

mention in the legislative history of a “massive shift”

of jurisdiction to the court of appeals. But we cannot \

disregard the plain language of a statute merely

because it is not repeated in the legislative history.

Committee reports need not state what is already

obvious. See Greyhound Corp. v. Mt. Hood Stages,

Inc., 437 U.S. 322, 330 (1978). In fact, however,

although the legislative evidence is meager, the House

Report did state that the amendment “provides for

essentially locally, statewide or regionally applicable

rules or orders to be reviewed in the United States

Court of Appeals for the circuit in which such local-

ity, state or region is located.” H.R. Rep. No. 294,

95th Cong., Ist Sess. 323 (1977). By contrast, there

is no mention of judicial review in the district courts.

Moreover, although the number of actions compre-

hended by “any other final action” is substantial (see

note 8, infra), it would not seem so “massive” that

it ineluctably would have provoked comment in the

legislative history.

\

11

The court’s second point is that Congress could not

have intended to require review of such determina-

tions in appellate courts which lack the procedural

means to supplement thin records. The size of an

administrative record, however, is not determinative

of jurisdiction. The Court has firmly established that

a reviewing court can look only to the record created

by the agency. FPC v. Transcontinental Gas Pipe

Line Corp., 423 U.S. 326, 331 (1976) ; Camp v. Pitts,

411 U.S. 188, 1483 (1973). A court’s capacity to con-

duct discovery, therefore, is irrelevant to its authority

to review administrative action. Where the record is

lacking, the remedy is remand to the agency for fur-

ther consideration. Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 420 (1971). The Fifth

Circuit’s opinion invites the district court to go far

beyond the administrative record and to create a

judicial record much broader than the administrative

proceedings.® Whether the district or appellate court

5 Save the Bay, Inc. v. Administrator, 556 F. 2d 1282 (5th

Cir. 1977), cited by the court, is distinguishable. Save the

Bay, Inc. involved a challenge to EPA’s inaction in failing to

veto a state-issued permit. Jurisdiction in Save the Bay was

dependent upon an EPA issuance or denial of a permit. Be-

cause EPA had neither issued nor denied the permit, the court

found it lacked jurisdiction. The reason the record in that

case was sparse was because EPA had not done anything.

By contrast, EPA has acted to apply certain regulations

to PPG’s facility, and the record of that action is set forth in

the exchange of correspondence.

6 The subsequent proceedings in Overton Park demonstrate

this danger. Although the district court was allowed on re-

mand to make a limited inquiry into factors influencing the

12

has original jurisdiction, however, the remedy for an

incomplete administrative record is the same—re-

mand to the Keency.

Equally flawed is the court’s rationale that the

specifically enumerated actions in Section 307(b)

would be superfluous if “any other final action”

really comprehended all final actions. Congress was

amending a previous provision that allowed review

of specifically enumerated items. Simply substituting

“any final action” might well have left a doubt

whether Congress intended to discontinue review in

the court of appeals of the old list of specifically

enumerated items. This drafting problem was con-

veniently solved by leaving the old list intact and

adding the phrase “any other final action.” The word

“other” eliminates any overlap with the specifically

enumerated items. In any event, it is hardly a novel

legislative technique to indulge in some redundancy

out of abundance of caution.’ Even when intending

to reach all like actions, it is not unusual to find

certain actions specifically named.

2. The decision imposes a severe burden on the

administration of the Clean Air Act. Except for the

administrator’s decision, the district court conducted a 25-

day, evidentiary trial with substantial probing into the ad-

ministrative procedure. Citizens to Preserve Overton Park

V. Volpe, 335 F. Supp. 873, 878 (D.C. Tenn. 1972).

‘The practice dates at least from the re-issue of Magna

Carta in 1225 in the reign of Henry III. Chapter 23 of that

charter (reprinted in 6 Halbury’s Statutes of England 404

(3d. ed. 1969) ), provides:

All Wears from henceforth shall be utterly put down by

Thames and Medway, and through all England, [ex-

cept] only by the sea-coasts.

13

specifically enumerated items, the decision leaves jur-

isdiction to review EPA action entirely to chance.

The size and quality of the administrative record

determines the appropriate forum. This was very

recently illustrated in another Fifth Circuit decision,

United States Steel Corporation v. EPA, No. 78-1922

(May 3, 1979). In that case, the Fifth Circuit

accepted jurisdiction under Section 307(b) (1) over

EPA’s promulgation of regulations because that

action was “based on a substantial record.” The

United States Steel court reaffirmed PPG’s holding

that under Section 307(b)(1) “some actions will be

reviewable only in the district courts” because those

actions were “made without the development of a

full record” (slip op. 6).

This criterion creates serious problems. Many

cases will fall within the newly created “twilight

zone.” * In the future, parties may seek to reduce (or

enlargé) the size of the administrative record in

8 There are approximately 90 actions now pending against

EPA (of which four are in the Fifth Circuit) which depend

on the meaning of “any other final action” to determine proper

jurisdiction. The majority of the cases are actions seeking

review of either non-attainment area designations by EPA

under Section 107 or of EPA regulations or permits relating

to the prevention of significant deterioration under Section

165. Other cases include a challenge to an EPA order under

Section 207(c) to recall automobiles not complying with the

carbon-monoxide standard and a challenge to EPA guidance

to states for control techniques for sources of volatile organic

compounds. In at least two instances, other than the pres-

ent case, simultaneous proceedings to review EPA actions

have been filed in the district courts and the courts of ap-

peals.

14

order to obtain review the district court (or the

court of appeals). Uncertain as to the correct court,

petitioners will file precautionary actions in both the

district court and the court of appeals. In many

instances, burdensome discovery will be conducted

in the district courts. Jurisdiction will be a hotly

contested issue in every case no matter where it is

filed. At all events, the decision below destroys the

clear-cut scheme of review established by Congress

under which all pre-enforcement review is in the

court of appeals and all enforcement actions are in

the district courts.

4, CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

WILLIAM ALSUP

Assistant to the Solicitor General

EDWARD J. SHAWAKER

MARYANN WALSH

Attorneys

JUNE 1979

la

APPENDIX A

No. 77-2989

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

PPG INDUSTRIES, INC., PETITIONER

Vv.

ADLENE HARRISON, REGIONAL ADMINISTRATOR, and

DOUGLAS M. COSTLE, ADMINISTRATOR OF ENVIRON-

MENTAL PROTECTION AGENCY, RESPONDENTS

Jan. 8, 1979

Petition for Review of an Order of the Environ-

mental Protection Agency.

Before RONEY, TJOFLAT and HILL, Circuit

Judges.

RONEY, Circuit Judge:

In this case PPG Industries, Inc. appeals an action

of the Administrator of the Environmental Protec-

tion Agency (EPA) subjecting the “waste heat’’ boil-

ers of its recently constructed power plant to new

source. performance standards for fossil fuel-fired

steam generating units. 40 C.F.R. §§ 60.40-46

(1977). PPG first challenges this Court’s jurisdic-

tion to entertain the appeal, having filed its petition

for review both here and in the district court because

of jurisdictional uncertainty. On the merits PPG

2a

contends that the performance standards for fossil

fuel-fired steam generators have no application to

its waste heat boilers, which are fueled only partially

by fossil fuels. Even if the standards apply, PPG

argues, the final action taken by the Administrator

here was without statutory authority for two rea-

sons: first, having started construction before the

effective date of the regulations, the waste heat boil-

ers were not a “new source” to which the statute ap-

plied; second, the Administrator had authority only

to set standards for emission limitations, whereas

here a standard for source fuel was imposed. In any

event, PPG asserts the Administrator’s action was

arbitrary and capricious. Finding this Court lacks

jurisdiction, we dismiss the petition.

I. PPG’s Lake Charles Facility

Petitioner PPG Industries, Inc. owns and operates

a chemical manufacturing plant located at Lake

Charles, Louisiana, which requires large amounts of

steam and electricity for its operations. To meet its

energy requirements, PPG recently constructed a

power plant designed to take advantage of fuel-

efficient “cogeneration” technology. The power plant

is comprised of two similar units. In each unit fossil

fuel is burned in a General Electric gas turbine gen-

erator to produce electricity. Energy, or “waste heat”

thrown off by the turbine’s exhaust, which would

normally be discharged into the atmosphere, is fun-

nelled as a heat source into a “waste heat’ boiler

which also burns fuel oil. This exhaust from the

8a

turbines contributes nearly 40% (approximately 371

million British thermal units per hour) of the total

input to the waste heat boiler, while the remaining

heat (approximately 598 million British thermal

units per hour) is provided by combustion of fuel oil

or natural gas, known as fossil fuels. The highly

pressurized steam produced by the waste heat boiler

is first used to turn a “backpressure” turbogenerator,

thereby creating more electricity, and is then chan-

nelled into PPG’s main plant for use in the manu-

facturing process.

The air pollutants from PPG’s power plant are

similar to those of any other boiler fired by fuel oil.

The pollutant of principal concern is sulfur dioxide,

which is formed during combustion of sulfur-bearing

fuels in the presence of oxygen. Virtually all of the

sulfur dioxide emissions from the power plant are

directly attributable to the combustion of fuel oil in

the waste heat boiler and virtually none to the gas

turbine exhausts.

PPG can control its sulfur dioxide emissions

through use of either flue gas desulfurization equip-

ment (“scrubbers”) or fuel oil with a low sulfur

content. In addition to sulfur dioxide emissions,

PPG’s power plan will emit particulate matter and

nitrogen oxides. These pollutants are not of great

concern in this case because nitrogen oxides are con-

trolled primarily through boiler design, and com-

bustion of fuel oil does not produce significant par-

ticulate emissions.

4a

II. The Statutory and Regulatory Framework

In passing the Clean Air Act Amendments of 1970,

Congress for the first time established a comprehen-

sive federal-state scheme for the control and abate-

ment of air pollution. Pub.L. No. 91-604, 84 Stat.

1676 (December 31, 1970), codified at 42 U.S.C.

§ 1857 (1970). The Clean Air Act was again sub-

stantially amended in 1977, Pub.L. No. 95-95, 91

Stat. 685 (August 7, 1977), and the final amended

version is codified at 42 U.S.C. § 7401-7642."

The 1970 Amendments required the EPA Admin-

istrator to set national ambient air quality standards

for “criteria” pollutants.? Each state, in turn, was

required to adopt and submit for EPA approval a

plan providing for “implementation, maintenance,

and enforcement” of the national standards within

the given state. 42 U.S.C.A. § 7410.

1 The history and structure of the 1970 Amendments are

discussed in Train v. National Resources Defense Council,

Inc., 421 U.S. 60, 63-67, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975).

2742 U.S.C. §§ 1857c-8, 1857c-4 (1970), as amended 42

U.S.C.A. §§ 7408, 7409.

National ambient air quality standards are of two types.

“Primary” standards are those which, in the Administrator’s

judgment, are “requisite to protect the public health.” “Sec-

ondary” standards are “requisite to protect the public welfare

from any known or anticipated adverse effects associated with

the presence of [a criteria] air pollutant in the ambient air.”

42 U.S.C.A. § 7409(b) (1) and (2).

Standards have been set for six “criteria” pollutants: sul-

fur dioxide, particulate matter, carbon monoxide, photochem-

ical oxidants, hydrocarbons, and nitrogen dioxide. 40 C.F.R.

§§ 50.4-.11 (1977).

5a

While emissions from both existing and new sources

of pollution are regulated under the various state im-

plementation plans, Congress, “concerned that new

plants—new sources of pollution—would have to be

controlled to the greatest degree practicable if the

national goal of a cleaner environment was to be

achieved,” Essex Chem. Corp. v. Ruckelshaus, 158

U.S.App.D.C. 360, 486 F.2d 427, 434 n.14 (D.C.Cir.

1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40

L.Ed.2d 558 (1974), determined that all new sources

should be subject to an additional layer of federal

control. It therefore enacted § 111, which required

the establishment of “standards of performance” for

all new sources. 42 U.S.C. §1857C-6 (1970), as

amended, 42 U.S.C.A. § 7411. “New source” is de-

fined under the Act as “any stationary source, the

construction or modification of which is commenced

after the publication of regulations (or, if earlier,

proposed regulations) prescribing a standard of per-

formance under this section which will be applicable

to such source.” 42 U.S.C.A. § 7411(a) (2).

Under § 111(b), the Administrator was directed

to publish, and from time to time revise, a list of

those categories of stationary sources which he de-

termined “may contribute significantly to air pol-

lution which causes or contributes to endangerment

of public health or welfare.” Subsequently, he was

to promulgate, after proposal and opportunity for

public comment, standards of performance for new

sources in the listed categories.

6a

In accordance with this directive, the Administra-

tor published an initial list of five stationary source

categories on March 31, 1971. The listed sources

were fossil fuel fired-steam generators, incinerators,

portland cement plants, nitric acid plants, and sulfu-

ric acid plants. Later that year, regulations estab-

lishing new source performance standards were pro-

posed and promulgated for each of the listed cate-

gories of sources. Regulations of general applicability

are grouped in Subpart A, 40 C.F.R. §§ 60.1-.15

(1977), while the regulations implementing the new

source performance standards for fossil fuel-fired

steam generators are located in Subpart D, 40 C.F.R.

§ 60.40-.46 (1977). The standards of performance

are written as emission limitations (in pounds per

million British thermal units heat input or grams

per million calories) which may not be exceeded. See

40 C.F.R. §§ 60.42-.45 (1977).

The regulations define “fossil fuel-fired steam gen-

erating unit” and “fossil fuel’ as follows:

(a) “Fossil-fuel fired steam generating unit”

means a furnace or boiler used in the process of

burning fossil fuel for the purpose of producing

steam by heat transfer.

(b) “Fossil fuel” means natural gas, petro-

leum, coal, and any form of solid, liquid, or gas-

eous fuel derived from such materials for the

purpose of creating useful heat.

Id. § 60.41. The Subpart D provisions are made ap-

plicable to “[e]ach fossil-fuel fired steam generating

unit” of more than 250 million British thermal units

per hour heat input. Jd. § 60.40.

Ta

Each fossil fuel-fired steam generating unit must

meet performance standards for particulate matter,

sulfur dioxide, and nitrogen oxides. Id. $§ 60.42-.44.

In order to measure compliance, § 60.45, provides that

the source owner or operator must install, calibrate,

maintain, and operate continuous monitoring systems

for measuring the opacity of emissions, sulfur dioxide

and nitrogen oxides emissions, and either oxygen or

carbon dioxide in the flue gases.

III. Agency and Court Proceedings

As a result of correspondence in 1975 and 1976

with PPG and intervenor Continental Oil Company

(Continental), EPA learned of the construction of

the new power plant at PPG’s Lake Charles facility.

In response to an EPA inquiry, PPG informed the

agency that it planned to start construction of the

two waste heat boilers on January 1, 1976, and July

1, 1977. EPA promptly requested information re-

garding the construction of the power plant to de-

termine whether it would be subject to new source

performance standards promulgated under § 111 of

the Clean Air Act.

In responses of May 14, 1976, and June 28, 1976,

PPG provided detailed information on the design and

construction of the new power plant, along with in-

formation regarding other power generating facili-

ties at the Lake Charles works.

In a letter dated October 5, 1976, the Acting Direc-

tor of the Enforcement Division of EPA’s Region VI

aavised PPG that the performance standards for

8a

fossil fuel-fired steam generating units would apply

to the waste heat boilers of the power plant because

in the Director’s view the construction of the boilers

was commenced after August 17, 1971, the date on

which the Subpart D regulations were proposed. In

particular, the Director noted that the final purchase

order for the first of the two waste heat boilers was

dated October 14, 1974.

PPG responded by a letter dated November 12,

1976, contending that each of the two sets of turbines

and boilers in the power plant constituted a single

integrated unit, that construction of each unit was

commenced in 1970, and that the turbogenerator pur-

chased in 1970 would be completely useless without

the waste heat boilers. In a letter dated December 22,

1976, the Region VI Director answered that “[fe]ven

though [PPG] may have ordered equipment before

the the date of the proposed regulations that would

be completely useless without the steam generators,

that action is irrelevant to determine the applicability

of the regulations to the two steam generators.”

On April 13, 1977, PPG filed a formal request un-

der 40 C.F.R. § 60.5 (1977)* for an EPA determi-

840 C.F.R. §60.5 (1977) provides in pertinent part as

follows:

(a) When requested to do so by an owner or operator,

the Administrator will make a determination of whether

action taken or intended to be taken by such owner or

operator constitutes construction (including reconstruc-

tion) or modification or the commencement thereof within

the meaning of this part.

(b) The Administrator will respond to any request for

a determination under paragraph (a) of this section

within 30 days of receipt of such request.

9a

nation that (1) the standards of performance do not

apply to boilers which, like those at PPG’s Lake

Charles works, derive a substantial amount of heat

from turbine exhaust gases (waste heat) and (2)

that construction of PPG’s new power plant was com-

menced prior to August 17, 1971, the date of publi-

cation of proposed standards of performance for

fossil fuel-fired steam generators. PPG also asked

EPA for a clarifying determination as to the appli-

cation of the Subpart D standards of performance

to waste heat boilers if EPA ultimately determined

that the standards governed the operation of PPG’s

boilers.

The Regional Administrator of EPA’s Region VI

responded to PPG’s three requests on June 8, 1977.

EPA determined that PPG’s waste heat boilers came

within the scope of the standards of performance for

fossil fuel-fired steam generators because each of the

boilers is capable of operating at 250 million British

thermal units per hour heat input. The fact that the

boilers were designed to manufacture steam through

combined use of turbine exhaust gases and the burn-

ing of fossil fuel was disregarded. EPA also rejected

PPG’s argument that construction of the waste boil-

ers should be considered to have commenced before

August 17, 1971, at the time that construction com-

menced on the power plant as a whole.

In response to PPG’s request for a determination

clarifying application of the performance standards

to the waste heat boilers output, EPA ruled that

compliance with the standards would be judged only

10a

on the amount of heat and combustion effluents pro-

duced by the fossil fuel burned in the waste heat

boilers. The turbine generators, having been ordered

prior to August 17, 1971, were not subject to federal

standards of performance. The combustion effluents

and thermal energy from the turbines could therefore

be discharged into the atmosphere without being

limited by the standards. Reasoning that there would

be no logic in penalizing an owner or operator who

chooses to use the exhaust heat in a waste heat re-

covery steam generator unit rather than discharge

it into the atmosphere, EPA ruled that both the heat

input and the emission contribution of the combus-

tion turbine would be excluded in determining wheth-

er the steam generator plant complies with the

standards.

The Director of the Division of Stationary Source

Enforcement of EPA ultimately upheld these determi-

nations and further ruled that PPG would be required

at all times to burn fuel containing a sulfur con-

tent equal to or less than a sulfur level to be speci-

fied as a result of performance tests conducted

in compliance with the performance standards. He

further determined that PPG was not required to

install equipment for and to conduct the continuous

monitoring for sulphur dioxide and nitrogen oxides

mandated by the performance standards, but that

under the standards PPG would be obliged to install

and operate continuous opacity monitors in the stacks

of the waste heat boilers and might also be required

to monitor and report on the sulfur content of the

fossil fuel burned in the boilers.

lla

PPG filed this petition for review. Since PPG chal-

lenges this Court’s jurisdiction to review EPA’s ac-

tions in this case, it has also filed, as a precautionary

measure, an action for review in the United States

District Court for the Western District of Louisiana.

PPG Industries, Inc. v. Costle, No. 77-1271. EPA

has moved to stay the district court action pending a

determination in this Court of its jurisdiction to hear

this petition.

IV. Jurisdiction

PPG argues that the district court, rather than the

court of appeals, should have jurisdiction of this re-

view. Although disputing this Court’s jurisdiction,

PPG filed a timely petition for review here as a pro-

tective measure while concurrently filing suit in the

Western District of Louisiana. No ruling concerning

jurisdiction had been made by the district court when

this case was argued.

Prior to the passage of the Clean Air Act Amend-

ments of 1977, the district courts and not the courts

of appeals had jurisdiction to review determinations

of local applications such as the one before us. 28

U.S.C.A. § 1831(a) confers jurisdiction on the fed-

eral district courts to review agency action, subject

only to preclusion by review statutes created or re-

tained by Congress. Califano v. Sanders, 430 U.S.

99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The

court in Utah Power & Light noted that district court

jurisdiction has been recognized under section 10 of

the Administrative Procedure Act, 5 U.S.C.A. §§ 701-

706. 553 F.2d at 219 n.20. The Supreme Court in

12a

Califano v. Sanders, however, concluded that the

amendment of § 1331 to eliminate the specified juris-

dictional amount requirement for a review of. agency

actions undercuts the rationale for interpreting the

Administrative Procedure Act as an independent jur-

isdictional provision. 430 U.S. at 105, 97 S.Ct. 980,

51 L.Ed.2d 192. The controlling issue, therefore, is

whether the 1977 Amendments have changed the law

to require that this review should take place initially

in the courts of appeals. We conclude that they have

not.

The Clean Air Act Amendments of 1977 added new

language to § 307(b)(1), the judicial review pro-

vision of the Act. The new Act provides exclusive

jurisdiction in the courts of appeals to review “any

order” issued under several specifically enumerated

sections and “any other final action of the Adminis-

trator under this Chapter . . . which is locally or

regionally applicable.” * The EPA determinations in-

* As amended, § 307(b) (1) provides in pertinent part:

A petition for review of the Administrator’s action in ap-

proving or promulgating any implementation plan under

section 7410 of this title or section 7411(d) of this title,

any order under section 7411(j) of this title, under sec-

tion 7412(c) of this title, under section 7413(d) of this

title, under section 7419 of this title, or under section 7420

of this title, or his action under section 119(c) (2) (A),

(B), or (C) (as in effect before August 7, 1977) or

under regulations thereunder, or any other final action of

the Administrator under this chapter (including any

denial or disapproval by the Administrator under sub-

chapter I of this chapter) which is locally or regionally

applicable may be filed only in the United States Court

of Appeals for the appropriate circuit. Notwithstanding

—

13a

volved in this case do not fall within any enumerated

sections of the statute. They are, rather, the Admin-

istrator’s interpretations and applications of regu-

lations promulgated pursuant to §111 of the Act.

Therefore they must come under the “any other final

action” clause of the statute if the court of appeals

is to have jurisdiction. The parties agree the action

is locally applicable, so that if there is court of ap-

peals jurisdiction, it is here rather than in the D.C.

Circuit.

The addition of the “any other final action” lan-

guage to the statute distinguishes the District of

Columbia Circuit case of Utah Power & Light Co. v.

EPA, 180 U.S.App.D.C. 70, 553 F.d 215 (1977),

upon which PPG relies. There the court held that

the language of §307(b)(1) of the 1970 Amend-

ments to the Clean Air Act® and “the policy consid-

the preceding sentence a petition for review of any action

referred to in such sentence may be filed only in the

United States Court of Appeals for the District of Colum-

bia if such action is based on a determination of nation-

wide scope or effect and if in taking such action the

Administrator finds and publishes that such action is

based on such a determination.

42 U.S.C.A. § 7607(b) (1) (emphasis added).

5 Section 307(b) (1), 42 U.S.C. § 1857h-5 (b) (1), specifies a

number of grounds for direct review in the court of appeals:

A petition for review of action of the Administrator in

promulgating any national primary or secondary ambient

air quality standard, any emission standard under section

1857c-7 of this title, any standard of performance under

section 1857c-6 of this title, any standard under section

1857f-1 of this title (other than a standard required to be

l4a

erations underlying that provision compel the conclu-

sion that challenges to the validity of certain agency

regulations are directly reviewable by courts of ap-

peals, whereas challenges to interpretations of those

regulations are not.” (emphasis added) 180 U.S.

App.D.C. at 73, 553 F.2d at 218. The court deter-

mined that Utah Power & Light Company was at-

tacking the particular interpretation and application

of the regulations to three power plants and not the

validity of the regulations themselves.

PPG argues that the phrase “any other final ac-

tion . . . under this chapter” refers only to the pro-

visions of the Act enumerated in § 3807(b) (1). The

EPA contends that the phrase should be interpreted

literally to subject every agency final action to review

by the courts of appeals. Neither argument is con-

vincingly supported in the language of § 307 (b) (1)

itself. Had Congress intended to confer jurisdiction

over only the enumerated sections, the “other final

action” clause would be qualified by “under these

prescribed under section 1857f-1(b) (1) of this title), any

determination under section 1857f-1 (b) (5) of this title,

any control or prohibition under section 1857f-6c of this

title, or any standard under section 1857f-9 of this title

may be filed only in the United States Court of Appeals

for the District of Columbia. A petition for review of the

Administrator’s action in approving or promulgating any

implementation plan under section 1857c-5 of this title or

section 1857c-6(d) of this title, or his action under sec-

tion 1857c-10(c) (2)(A), (B), or (C) of this title or

under regulations thereunder, may be filed only in the

pe States Court of Appeals for the appropriate

circuit.

15a

sections” rather than “under this chapter” which

clearly refers to the Act as a whole. If Congress in-

tended, however, to cast the entire responsibility for

reviewing all EPA action under the Act into the

courts of appeals, the numeration of specific sections

would appear to be redundant.

The most revealing aspect of the legislative history

of the revised § 307(b) (1) is its complete failure to

mention what EPA asserts was a massive shift of

jurisdiction to the courts of appeals.® In a legislative

6 Subsection (c) of section 305 of the bill is intended to

clarify some questions relating to venue for review of

rules or orders under the act. Paragraph (1) of that

subsection makes it clear that any nationally applicable

regulations promulgated by the Administrator under the

Clean Air Act could be reviewed only in the U.S. Court

of Appeals for the District of Columbia. These would

include, to mention byt a few examples, regulations to

carry out the nonattainment policy referred to in section

117 of this bill and regulations to effectuate motor vehicle

assembly-line test provisions of section 206 of the act or

inspection/maintenance requirements under section 208

of this bill.

Subsection (c) (2) of section 305 provides for essen-

tially locally, statewide, or regionally applicable rules or

orders to be reviewed in the U.S. court of appeals for the

circuit in which such locality, State or region is located.

This provision applies, except as otherwise provided in

paragraph (4), to the Administrator’s action in approv-

ing or promulgating an implementation plan for any

State.

On the other hand, if an action of the Administrator is

found by him to be based on a determination of nation-

wide scope or effect (including a determination which

has scope or effect beyond a single, judicial circuit), then

16a

report which discusses proposed changes for over

300 pages, such a Sweeping revision would be un-

likely to escape comment.

The likelihood that such a jurisdictional transfer

was contemplated is further reduced by the nature

of the “final actions” which this asserted shift would

direct to the appellate courts and the state of the

accompanying administrative records on which these

actions would be reviewed. Many EPA decisions are

the end product of agency procedures which produce

an administrative record sufficiently complete for

exclusive venue for review is in the U.S. Court of Appeals

for the District of Columbia, under paragraph (4).

In adopting this subsection, the committee was in large

measure approving the portion of the Administrative

Conference of the United States recommendation sec-

tion 305.76-4(A), that deals with venue.’° The commit-

tee’s view also concurs, however, with the comments,

concerns, and recommendation contained in item No. 1

of the separate statement of G. William Frick, which ac-

companied the Administrative Conference’s views,"

Also, as indicated earlier, the committee bill incor-

porates recommendation D2 of the Administrative Con-

ference on extending the period for petitioning for judi-

cial review in the court of appeals.

However, in no event should these provisions be con-

strued as endorsement of the remainder of the Admin-

istrative Conference’s recommendations. Some of these

recommendations, such as those contained in items B and

C, were simply not considered by the committee. Others

(such as the recommendations in D1 and D3, were

rejected.12

H.R. Rep. No. 294, 95th Cong., Ist Sess. ——, 323-24 reprinted

tn [1977] U.S. Code Cong. & Admin. News pp. 1077, 1402-03.

The recommendations of the Administrative Conference are

reprinted in C.F.R. § 305.76-4,

17a

judicial review of the decision.’ Others, like those

challenged by PPG here, are determinations made

during the course of the agency’s operations as to

how its regulations will be interpreted and applied.

If such decisions could be made only after agency

compilation of a thorough record, the agency’s admin-

istration of the Act would be brought to a standstill.

Cf. Save the Bay, Inc., v. Administrator of E. P. A.,

556 F.2d 1282, 1292 (5th Cir. 1977). The skeletal

record of the Administrator’s grounds for such a de-

cision, however, here a collection of correspondence

between the agency and affected parties, may leave

the reviewing court unable to verify the Administra-

tor’s grounds or, perhaps, to identify those grounds

at all. See, e.g., Save the Bay, Inc., 556 F.2d at

7 For example, the actions and standards made reviewable

under the former § 307(b) (1) would have produced such

records. Senator Cooper, endorsing unified review in the

Courts of Appeals rather than jurisdiction shared with the

district courts, explained:

I prefer the judicial review framework in the bill for

I believe that through the administrative process the

Secretary can develop on the record all of the technical

and other relevant information necessary to achieve a

sound judgment. Similarly, and in accordance with gen-

eral administrative law, such decision of the Secretary,

should be reviewable in the court of appeals so that the

interests of all parties can be fully protected. With the

record developed by the Secretary, the court, as an un-

biased, independent institution, is the appropriate forum

for reviewing such decision and making a judgment as

to its quality. ;

Senate Comm. on Public Works, 98rd Cong., 2d Sess., A Leg-

islative History of the Clean Air Amendments of 1970 (Comm.

Print 1974) at 386. ;

18a

1292. (Record failed to reveal what factors caused

EPA to refrain from exercising its veto power

against a permit to discharge pollutants under the

Federal Water Pollution Control Act).

The Administrator’s decisions in this case would

have to be reviewed under the standard supplied by

the Administrative Procedure Act, 5 U.S.C.A. § 706.

The Court must inquire (1) whether the action was

within the scope of the agency’s authority, (2)

whether the agency conformed to procedural require-

ments, and (8) whether the decision was arbitrary,

capricious, an abuse of discretion, or otherwise not

in accordance with law. Texas v. EPA, 499 F.2d

289, 296 (5th Cir. 1974), cert. denied, 427 U.S. 905,

96 S.Ct. 3191, 49 L.Ed.2d 1199 (1976). The third

inquiry requires that the Court consider “whether

the decision was based on a consideration of the rele-

vant factors and whether there has been a clear error

of judgment.” Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136

(1971). The Supreme Court in Overton Park re-

manded the case to the district court for review of

the Secretary of Transportation’s approval of high-

way construction through the city park and observed

[S]ince the bare record may not disclose the

factors that were considered or the Secretary’s

construction of the evidence it may be necessary

for the District Court to require some explana-

tion in order to determine if... the Secretary’s

action was justifiable under the applicable

standard.

19a

The court may require the administrative offi-

cials who participated in the decision to give

testimony explaining their action. ... [H]ere

there are no... formal findings and it may be

that the only way there can be effective judicial

review is by examining the decisionmakers them-

selves.

401 U.S. at 420, 91 S.Ct. at 825.

This Court has noted

When Congress has vested this court with origi-

nal review, it generally has done so in relation

to an administrative process that more easily

lends itself to production of a reviewable record.

Save the Bay, Inc., 556 F.2d at 1292. It is apparent

that appellate courts, lacking the fact-finding mecha-

nisms available to district courts, are ill-suited to

conduct meaningful review of administrative actions

resting on records as sparse as the one here.

Judge Clark has previously articulated the ad-

verse effects flowing from the legislative mandate

that judicial review proceedings of highly technical,

factually complex administrative actions he initially

injected into the court system at the appellate level.

See Texas v. EPA, 499 F.2d 289, 321 (5th Cir.

1974) (Clark, J., concurring), cert. denied, 427 U.S.

905, 96 S.Ct. 3191, 49 L.Ed.2d 1199 (1976).

No formal hearing has ever been held in this

highly technical, factually complex matter. The

administrative “record” upon which we had to

base our review was comprised of only the spar-

est of documentation, for it essentially evolved

20a

from an act of agency rule-making. To accentu-

ate the problem the agency contracted the serv-

ices of a private firm for the formulation of most

of the rule requirements it ultimately adopted

here, so that not even intra-agency background

for these actions was available. The writing

judge was required to hold both pre and post-

argument conferences with counsel for the

parties to enable the three of us as a court to

comprehend the substance of the issues and con-

duct a minimally meaningful review.

The subject matter of this action involves the

health and welfare of millions of citizens, the

continued business vitality of tens of thousands

of firms and compliance expenditures costing

billions of dollars.

These extensive rights deserve a more orderly

process of judicial reflection.

499 F.2d at 321-322.

The discovery apparatus of district courts permits

the fact and record development prior to court con-

frontation. At this level, only after hearing, which

may be long delayed because of other calendar com-

mitments, can it be known whether the record is

sufficient for review purposes. An insufficient record

may necessitate a remand for fact-finding and rec-

ord completion and a second court appearance, often

before other judges, long delayed.

Whatever addition to the jurisdiction of the courts

of appeals Congress may have contemplated by add-

ing the “any other final action” language to § 307

(b) (1), we assume that section was drafted with

2la

the mechanical limitations of the courts of appeals in

mind. In light of the difficulty of review in this

Court of the agency action challenged by PPG, we

will not hold that review was intended to be here in

absence of explicit congressional direction. The peti-

tion for review is therefore dismissed.

PETITION DISMISSED.

A true copy

Test: EDWARD W. WADSWORTH

Clerk, U.S. Court of Appeals, Fifth Circuit

By /s/ Brenda Hauck

BRENDA HAUCK

Deputy, Mar. 6, 1979

New Orleans, Louisiana

22a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 19

No. 77-2989

PPG INDUSTRIES, INC., PETITIONER,

Versus

ADLENE HARRISON, REGIONAL ADMINISTRATOR,

AND DOUGLAS M. COSTLE, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS.

Petition for Review of an Order of the

Environmental Protection Agency

Before RONEY, TJOFLAT AND HILL, Circuit Judges.

JUDGMENT

This cause came on to be heard on the petition of

PPG Industries, Inc., for review of an order of the

Environmental Protection Agency, and was argued

by counsel ;

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the

petition for review of an order of the Environmental

Protection Agency in this cause be, and the same is

hereby, denied;

It is further ordered that the petitioner pay to the

respondent the costs on appeal, to be taxed by the

Clerk of this Court.

January 8, 1979

By /s/ Brenda Hauck

Deputy

Issued As Mandate: Mar 6 1979

23a

APPENDIX C

OCT. 5, 1976

CERTIFIED MAIL—RETURN RECEIPT

REQUESTED #819271

Mr. T. G. Taylor

Technical Manager

PPG Industries, Inc.

P. O. Box 1000

Lake Charles, Louisiana 70601

Dear Mr. Taylor:

Your letter and attachments of June 28, 1976 have

been received and reviewed. Based on the informa-

tion in that letter and your earlier submittal of

May 14,1976, we have determined that the Stand-

ards of Performance for New Stationary Sources

[40 C.F.R. Part 60] apply only to the two waste

heat steam generators of Powerhouse C located at

the Lake Charles, Louisiana plant.

The applicability of the New Source Performance

Standards (NSPS) is determined solely by the facts

applicable to the specific facilities for which NSPS

regulations have been issued. It is not considered

relevant for NSPS purposes that the gas turbines for

Powerhouse C were ordered in 1970. The purchase

order you submitted on the waste heat steam genera-

tor showed that the unit was ordered on October 14,

1974. Because the contractual obligation to construct

the steam generators was after the date of the pro-

posed regulations for fossil fuel fired steam genera-

24a

tors, August 17, 1971, the waste heat steam genera-

tors numbered 1 and 2 of Powerhouse C are subject

to the provisions of the Standards of Performance

for Fossil Fuel Fired Steam Generators, 40 C.F.R.

Part 60, Subpart D (a copy of which is enclosed).

The two waste heat steam generators are subject to

the notification and recordkeeping requirements of

40 C.F.R. 60.7 and the performance tests require-

ments of 40 C.F.R. 60.8 (copies of which are en-

closed).

If you have any questions concerning this matter,

you may contact Mr. Gary Bernath of my staff by

letter or by telephone at (214) 749-7675.

Sincerely yours,

ORIGINAL SIGNED BY

O. W. Lively

Acting Director

Enforcement Division (6AE)

Enclosure a/s

cc: Mr. James Coerver

Technical Secretary

Louisiana Air Control Commission

P. O. Box 60603

New Orleans, Louisiana 70160

bee: DSSE, Washington, D.C.

6AEL:JVeach :ma:X2142 :9-30-76

6AEL 6AEA 6AEA 6AEA

Collins Bernath Fahrenthold Doyle

hoes

25a

APPENDIX D

Dec. 29, 1976

cc: Mr. James Coerver

Technical Secretary

Louisiana Air Control

Commission

Mr. T. G. Taylor

Technical Manager

PPG Industries, Inc.

P. O. Box 1000

Lake Charles, Louisiana 70601

Dear Mr. Taylor:

We have reviewed your letter of November 12, 1976

concerning the two steam generators of Powerhouse

C.

As we stated in our letter of October 5, 1976, the

applicability of the New Source Performance Stand-

ards (NSPS) depends solely on the facts relating to

the types of equipment for which NSPS regulations

have been issued. The regulations apply to a facility

the construction or modification of which is com-

menced after the date of publication of any standard

(or, if earlier, the date of publication of any pro-

posed standard) applicable to that facility. The in-

formation you have provided shows that the com-

mencement of the construction of the two steam

generators was after the publication of the proposed

regulation for fossil fuel fired steam generators.

Even though you may have ordered equipment before

26a

the date of the proposed regulations that would be

completely useless without the steam generators, that

action is irrelevant to determine the applicability of

the regulations to the two steam generators.

We hope that this discussion makes it clear why the

two steam generators are subject to the provisions of

the Standards of Performance for New Stationary

Sources, 40 CFR Part 60.

If you still desire to have a meeting discussing this

determination, please contact Mr. James Veach of

my staff by letter or by telephone at (214) 749-2142.

Sincerely yours,

ORIGINAL SIGNED BY

O. W. Lively

Acting Director

Enforcement Division

6AEL:J Veach:ma:X2142:1-26-76:

Retyped :12-6-76

6AEL 6AEA 6ARA

Collins Bernath Fahrenthold

a

27a

APPENDIX E

PPG INDUSTRIES, INC./

ONE GATEWAY CENTER/

PITTSBURGH, PENNSYLVANIA 15222/

AREA 412/434-2145

GEORGE P. CHENEY, JR., Assistant Counsel

April 18, 1977

Mr. Howard Bergman

Director, Enforcement Division

Environmental Protection Agency

Region VI

1600 Patterson Street

Dallas, Texas 75201

Re: Request for Determinations under

40 C.F.R. § 60.5.

Dear Mr. Bergman:

By this letter, PPG Industries, Incorporated,

(“PPG”), seeks a determination that construction of

two “waste heat” boilers, components of “Power Plant

C” at PPG’s Lake Charles, Louisiana works (‘Lake

Charles works”) was “commenced” within the mean-

ing of Section 111(a)(2) of the Clean Air Act, as

amended, 42 U.S.C. § 1857c-6, prior to August 17,

1971, the date of proposed “new source” emission

regulations for fossil-fuel fired steam generators.

Aiternatively, PPG seeks a determination that the

regulations for fossil-fuel fired steam generators do

not apply to waste heat boilers such as those being

installed at the Lake Charles works. This request for

28a

determinations is submitted pursuant to 40 C.F.R.

§ 60.5 (captioned “Determination of construction or

modification” ). ;

Power Plant C is a fully coordinated power gen-

erating system, composed of two gas turbine genera-

tors (producing electricity) and two “waste heat’

boilers (producing process steam). The first of the

gas turbines will begin operation by the end of April

of this year, and the companion “waste heat’ boiler

is projected to go on line in June. The second set of

such units (turbine plus “waste heat” boiler) is

scheduled for start-up in the third quarter of 1978.

The determinations sought by PPG are essential to

clarify tentative findings contained in a letter from

Mr. O. W. Lively, Acting Director, Enforcement

Division, Region VI, dated October 5, 1976, which

findings have been the subject of continuing subse-

quent correspondence and discussion.

Should it be determined both that construction of

the “waste heat” boilers of Power Plant C was not

“commenced” until after August 17, 1971, and that

the new source regulations for fossil-fuel fired steam

generators apply to such “waste heat” boilers, PPG

by this letter seeks an interpretation of the regula-

tions as applied to the “‘waste heat’ boilers. Because

of the manner in which the standards of perform-

ance are written (explicit formulas set out allowable

emissions where specified fuels are used), they can-

not be readily applied to the “waste heat” boilers.

The regulations would in some way have to be adapt-

ed to take into account the fact that only part of the

a. etek Sgn ee BOE ET

29a

heat used is created by the firing of fuel within the

boilers themselves.

To aid in your consideration of this request, two

memoranda are appended. Appendix A is a state-

ment of the facts relevant to the determinations

sought by PPG. Appendix B is a memorandum pre-

pared by counsel based on those facts analyzing the

relevant provisions of the Clean Air Act and imple-

menting regulations.

The long and short of the matter is that the pres-

ent regulations for steam generators seem to have

been construed to prevent, or at least to tend to pre-

vent, the possibility of “recapturing” waste heat, a

very desirable goal, from both an energy conservation

and economic standpoint. On the other hand, if the

turbines were operated independently of the boilers,

ie., if no attempt were made to use the waste heat

from the turbine exhaust in the boilers, full com-

pliance with the EPA standards of performance

could be achieved. This anomaly is especially troub-

ling to PPG since the design of and course of con-

struction for the combined turbine-“waste heat’ boil-

er units was set in 1970, well before the advent of the

standards of performance.

Very truly yours,

/s/ George P. Cheney, Jr.

GEORGE P. CHENEY, JR.

Assistant Counsel

80a 7 3la

pind APPENDIX F

Attachments |

ec: Edward E. Reich | ENVIRONMENTAL PROTECTION AGENCY

. €«

Director, Division of Stationary JUN 8 1977

gr nlomacage ae CERTIFIED MAIL—RETURN RECEIPT

Environmental Protection Agency | REQUESTED +560100

. 401 M Street, S. W.

Washington, D. C. 20460 Mr. George P. Cheney, Jr.

Assistant Counsel

PPG Industries, Inc.

One Gateway Center

Pittsburgh, Pennsylvania 15222

Dear Mr. Cheney:

- We have reviewed your letter of April 13, 1977, and™

the memoranda attached thereto, concerning the two -

“waste heat” boilers of “Power Plant C” at PPG’s

Lake Charles, Louisiana plant. We considered your

letter as a request for reconsideration of the determi-

nation given in our letter of October 5, 1976. After

consulting with the Division of Stationary Source

Enforcement, we reaffirm our prior determination

that the two “waste heat” boilers are subject to pro-

visions of Standards of Performance for Fossil Fuel

Fired Steam Generators, 40 CFR, Part 60, Subpart

D

ee ee eT ee

| As stated in our letter of December 22, 1976, to

PPG, the determination of when a facility (subject

| to a Standard of Performance) commenced construc-

| tion depends solely on the construction of that facil-

ity. Therefore, we cannot favorably consider your

: request that the commencement of construction of

82a

two “waste heat” boilers be tied to the construction

of the entire Power Plant C.

The two boilers each have the capability of operating

at more than 250 million British thermal units per

hour heat input. For this reason the boilers come

within the scope of the Standards of Performance

for fossil fuel fired steam generating units even

though the boilers can burn a combination of fuel

and turbine exhaust gases.

As to the question of how to determine compliance,

on April 17, 1972, the Office of Enforcement ruled, in

a similar case that:

The combustion turbine facility clearly is not

subject to the present Federal regulations, and

both the combustion effluent and thermal energy

from the turbine may be discharged to the at-

mosphere without being limited by the standards.

There would be no logic, then in penalizing an

owner or operator who chooses to use the ex-

haust heat, which otherwise would be wasted, in

a waste heat recovery steam generator unit,

with or without supplemental fuel.

Accordingly, we agree that both the heat input

and the emission contribution of the combustion

turbine will be excluded in determining whether

the steam generator plant complies with the

standards. Compliance will be judged only on

the amount of heat and combusion effluents add-

ed by supplemental fuel used in the waste heat

recovery steam generator, which is the affected

facility.

Therefore, it is necessary for the performance tests

to be conducted on 100% fossil fuel.

et Et 2 ND

33a

If you have any additional questions on this matter,

please contact Mr. James Veach at (214) 749-2142.

Sincerely yours,

/s/ J. Paul Camola for

John E. White

Regional Administrator

bee: Larsen, DSSE

Knudson (6S&A)

6AEL:JVeach :ma:X2142 :5-23-77

84a

APPENDIX G

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

August 18, 1977

OFFICE OF ENFORCEMENT

Mr. Charles F. Lettow

Cleary, Gottlieb, Steen and Hamilton

1250 Connecticut Ave., N.W.

Washington, D.C. 20036

Dear Mr. Lettow:

A re-examination of our August 3, 1977, letter to

you concerning PPG’s Lake Charles, Louisiana,

waste-heat boilers reveals a misstatement of the ap-

plicable regulatory requirements affecting the PPG

facility. On August 8, 1977, a member of my staff,

Douglas Farnsworth, telephoned Mr. Douglas Kliever,

of your firm, to notify him of the possible re-determi-

nation.

Our August 3, 1977, letter stated that your under-

standing was correct

that except for the time of the performance test

or other periods when a boiler is operating on

100 percent fossil fuel, the standards for fossil

fuel-fired boilers would not apply to the opera-

tion of PPG’s waste-heat boilers in their planned

mode of operation (significant heat input from

turbine exhaust gas) ....

That statement is not consistent with previous EPA

determinations in similar cases, nor is it consistent

with EPA Region VI’s June 8, 1977, determination

letter to Mr. George P. Cheney, Jr. of PPG. It is cor-

85a

rect that during a performance test the boiler must

operate at 100 percent fossil fuel. However, subsequent

to the performance test, compliance will be judged

on the amount of heat and emissions attributed to the

fossil fuel used in the waste heat boiler. Thus, the

standards of performance for a fossil fuel-fired steam

generator will apply to the PPG facility at all other

times after the performance test as well. However,

compliance with the standard will be determined

based on the heat input from the fossil fuel and the

emissions directly related to the combustion of that

fossil fuel. Any heat input or emissions caused by

the waste-heat will be disregarded in determining

compliance.

As stated in 40 CFR § 60.11(a), compliance with

standards shall be determined only by performance

tests established by .) CFR § 60.8. However, sources

subject to new source performance standards are re-

quired, pursuant to 40 CFR § 60.11(d), “to the ex-

tent practicable, maintain and operate any affected

facility including associated air pollution control

equipment in a manner consistent with good air

pollution control practice for minimizing emissions.”

Since PPG has chosen low sulfur fuel as the method

for meeting the standard, the regulations require

burning such fuel at all times subsequent to the per-

formance test.

As was indicated to you during your August 17,

1977, telephone conversation with Doug Farnsworth

and Rich Biondi of my staff, in-stack continuous

monitors for NO: and SO, will not have to be in-

stalled on the PPG. facility. However, an opacity

36a

monitor must be installed and operational prior to

conducting performance tests (40 CFR 60.13(b)).

In addition, PPG will be required to perform some

form of alternative monitoring. This may include

monitoring and reporting on the sulfur content of

the fossil fuel burned in the boiler. PPG should con-

tact our Region VI office in Dallas, Texas, to deter-

mine the specifics of the alternative monitoring re-

quirements, as well as the opacity monitor.

The second point made in the August 3, 1977, let-

ter which confirmed that PPG’s Lake Charles, Louisi-

ana, facility would not be subject to any new source

performance standard for waste-heat boilers which

might be proposed and promulgated in the future, is

accurate in that a standard more stringent than the

present one would not be applicable to the PPG

facility. :

I apologize for the incorrect statement made in our

earlier letter. However, the position taken above is

consistent with Region VI’s original June 8, 1977,

determination to PPG. If you have any questions on

this matter, please contact Douglas Farnsworth of

my staff at (202) 755-2570.

Sincerely yours,

/s/ Edward E. Reich

EDWARD E. REICH, Director

Division of Stationary

Source Enforcement

ec: Director, Enforcement Division

Region VI

Jack Farmer, SDB

* U. S. GOVERNMENT PRINTING OFFICE; 1979 2985808 16

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