Petition — Dow Chemical Co. v. United States Environmental Protection Agency

¥ Office-Supreme Court, U.S.

| FILED

f

SO=-17081 ° apr 2 1981

PT ALEXANDcGR L. STEVAS,

' CLERK

NO. 81-

SSS OO

IN THE

Supreme Court of the United States

OCTOBER TERM 1980

——_e——_

THE DOW CHEMICAL COMPANY,

a Delaware corporation,

Petitioner,

vs.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and DOUGLAS M. COSTLE,

Respondents.

_— ?}

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

R. L. DAVIS

Division Counsel

. The Dow Chemical Company

Midland, Michigan 48640

WERE EQER ym

FISCHER, FRANKLIN, FORD,

SIMON & HOGG

1700 Guardian Building

Detroit, Michigan 48226

(313) 962-5210

Attorneys for Petitioner

The Dow Chemical Company

Interstate Brief & Record Co., Wurlitzer Bldg., 1509 Broadway, Detroit, Mi 48226

962-8745 962-8746

m%

i

QUESTIONS PRESENTED FOR REVIEW

I.

DID CONGRESS, WHEN IT ENACTED THE 1977 CLEAN AIR

ACT AMENDMENTS, INTEND TO PRECLUDE A STATE

FROM PERMITTING A SOURCE TO OPERATE A

SUPPLEMENTARY CONTROL SYSTEM (SCS) ON A

INTERIM BASIS TO MEET AMBIENT AIR QUALITY STAN-

DARDS (AAQS) UNTIL IT: FINAL MEANS OF CONTINU-

OUS CONTROL (WHICH HAD BEEN CONTRACTED FOR

BEFORE ADOPTION OF THE CLEAN AIR ACT OF 1970)

COULD BE PLACED IN OPERATION?

The Court of Appeals answered this question “‘yes.’’

Petitioner contends the answer is “no.”

Il.

DID THE COURT OF APPEALS ERR IN REFUSING TO RE-

VIEW THE LEGISLATIVE HISTORY OF THE CLEAN AIR

ACT AMENDMENTS OF 1977 ON THE GROUND THAT THE

RELEVANT STATUTORY PROVISIONS WERE “OBVIOUS

AND UNAMBIGUOUS?”

Petitioner contends the answer is “‘Yes.”’

Il.

DID THE COURT OF APPEALS ERR IN CONCLUDING

THAT, EVEN THOUGH THE AMBIENT AIR QUALITY

STANDARDS (AAQS) FOR SULFUR DIOXIDE WERE

BEING MET, THE STATE OF MICHIGAN COULD NOT RE-

VISE ITS STATE IMPLEMENTATION PLAN (SIP) TO AC-

COMMODATE PETITIONER’S UNIQUE COMPLIANCE

PROBLEMS BECAUSE OF THE PARTICULAR VOLUME OF

SULFUR DIOXIDE BEING EMITTED BY PETITIONER?

Petitioner contends the Answer ee Sh

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ................. i

SEE Ns 5's Raed co ees ori aicau lee 2

NN aie Basin th dine in dv kd Hee. be tahoe 2

4 Statutes and Regulations Involved ................ 2

Statement of the Case ..............cccccccecece 3

Reasons for Granting the Writ ......... re re 8

NUE 5 65 hoes oh by bv eoeds005 Loews one Cees 18

TABLE OF AUTHORITIES

- Cases:

Big Rivers Electric Corporation, et al v. U.S.

Environmental Protection Agency, 523 F. 2d 16

(6th Cir. 1975), cert. denied 425 U.S. 934 (1976) 6

The Bunker Hill Company v. U.S. Environmental

Protection Agency, 572 F. 2d 1286 (9th Cir.

PREG 9 baa ws dive en cedwns kone o alii 6

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

1149 (9th Cir. 1975), cert. denied 425 U.S. 935

OD - init wikis pucTawediey nessa cae me 6

Kennecott Copper Corporation v. Train, 424 F.

Supp. 1217 (D. Nev. 1976), reversed on other

grounds, sub. nom. Kennecott Copper Corporation

v. Costle, 572 F. 2d 1349 (9th Cir. 1978) ...... 6

PRECEDING PAGE WAS BLANK

iv

Page

Natural Resources Defense Council, Inc. v. U.S.

Environmental Protection Agency, 489 F. 2d

390 (Sth Cir. 1974, reversed in part on other

grounds, sub. nom. Train v. Natural Resources

Defense Council, Inc., 421 U.S..60 (1975) ...... 6

a Southeastern Community College v. Davis, 442

WAN EOE Ga isos URED cos. bine valk betas s 13

Train v. Colorado Public Interest Research Group,

ane. , 420. WS 0 CBF GY ss kph asidae'es 7,8,9,10,12,13

Train v. Natural Resources Defense Council, Inc.,

GEE EGG CASTE). ie 6 tice dnececd 8,13,14,15,16,17

Union Electric Co. v. U.S. Environmental

Protection Agency, 427 U.S. 246 (1976); reh.

denied 429 U.S. 873 (1977) ............. 8,15,16,17

United States v. Oregon, 366 U.S. 643 (1961) ... 13

Vermont Yankee Nuclear Power Corporation v.

Natural Resources Defense Council, Inc., 435

SF Ee CE Evid ce bb sk es Reh ce ho beh eee) 3

Statutes:

‘ BE. APs PEED wide so 50 060 o's ohh baa 2,5

a

Sh Nas, EOD 8 iy oc cadiedostobbbaenns 2,17

Se ee POMED 5s Sv ir codecds xewbues 2,5,10

OE She B MEEE Ri iic cee hae dd came deane cede p A

Be TP PE 5 Sc Un wkdvoncavadenceade 2,5,10

Oe a I bs ae ay cass es ences ey 2,5

Oe Se TUNED. 4 ih Da vb oink vie Ki vb geans ajo

Congressional Reference:

H.R. Rep. No. 294; 95th Cong. 1st Sess. (1977)... 10,

11,12

a

NO. 81-

IN THE

Supreme Court of the United States

OCTOBER TERM 1980

——_e——_-

THE DOW CHEMICAL COMPANY,

a Delaware corporation,

Petitioner,

vs.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and DOUGLAS M. COSTLE,

Respondents.

_—oe —_—_

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_—?o-—_——

Petitioner THE DOW CHEMICAL COMPANY (Dow)

respectfully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court

of Appeals for the Sixth Circuit entered in these

proceedings on December 9, 1980. Petitioner filed a

Petition for Rehearing and Suggestion for Rehearing En

Banc in a timely manner, which Petition was denied

by the United States Court of Appeals for the Sixth

Circuit on February 9, 1981.

2

OPINION BELOW

The opinion of the Court of Appeals is not yet

officially reported. A copy of the opinion is contained in

the Appendix annexed hereto. (App. 1)

JURISDICTION

The Judgment of the Court of Appeals was entered on

December 9, 1980. (App. 35) Petitioner thereafter filed a

Petition for Rehearing and Suggestion for Rehearing En

Banc on December 23, 1980, which Petition was denied

by the Court of Appeals on February 9, 1981. (App. 36)

This petition for writ of certiorari was filed within 90

days of that date. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The statutory provisions involved are specific

provisions of the Clean Air Act of 1970 as amended by

the Clean Air Act Amendments of 1977. The provisions

involved are:

42 U.S.C. § 7407(d)(1)-(2)

42 U.S.C. § 7410(a) (1)-(3)

42 U.S.C. § 7423(a)-(b)

42 U.S.C. § 7501(2)

42 U.S.C. § 7602(k)

42 U.S.C. § 7602(m)

42 U.S.C. § 7607(b)(1)

Because of their length, these statutory provisions are set

forth in the annexed Appendix. (App. 36-45)

3

STATEMENT OF THE CASE

This case involves the question of whether Congress,

in enacting the Clean Air Act Amendments of 1977,

intended to prohibit sources from using Supplementary

Control Systems (SCS) on an interim basis to meet

ambient air quality standards until their final means of

compliance (statutorily mandated “continuous controls’’)

could be placed in operation. The parties here agree that

a source's final means of compliance with the provisions

of the Clean Air Act must be “continuous controls.” The

issue which divides the parties is whether the Clean Air

Act Amendments of 1977 were intended to bar interim

use of a SCS by a source to meet ambient air quality

standards until its final means of continuous control

(delayed for reasons over which it had no control) could

be placed in operation.

In 1967, Dow and Consumers Power Company entered

into a contract for what was to become Dow’s final

“continuous” means of compliance with the

requirements of the subsequently enacted Clean Air Act

of 1970. This contract committed Dow to retire its old

fossil fuel fired boilers, purchase steam and electricity

from a nuclear plant to be constructed at Midland,

Michigan and reimburse Consumers, as a portion of the

steam rates ultimately to be charged, for in excess of $700

million in construction costs incurred by Consumers in

building the nuclear plant at Midland, Michigan. The

nuclear plant was originally scheduled to be completed

in 1974 but various delays, completely beyond Dow’s

control, moved the start-up date to 1980, then 1982 and

now 1984.1

? Some of the reasons for the delays are set out in Vermont Yankee

Nuclear Power Corporation v. Natural Resources Defense Council, Inc.,

435 U.S. 519 (1978).

4

In order to provide for an interim means of meeting the

ambient air quality standards (AAQS) by 1975 (as

required by the Clean Air Act of 1970) until the nuclear

plant could be completed, Dow was authorized by the

Michigan Air Pollution Control Conimission (MAPCC),

through a series of Consent Orders or variances (App.

46, 53, and 70), to operate a Supplementary Control

System (SCS)? in lieu of constructing tall stacks or

implementing other systems found to be either

economically or technologically infeasible. There is no

dispute between the parties that, since implementation

of Dow’s SCS, the system has proven completely

successful in attaining and maintaining the relevant

AAQS in the Midland County area.

All the Consent Orders or variances [Consent Order

12-73-05 (App. 46), Consent Order No. 10-1977 (App.

53) and Consent Order No. 01-1979 (App. 70)] were

submitted by the MAPCC to the U. S. Environmental

Protection Agency (EPA) for its review and approval.

Moreover, as required by the Clean Air Act

2 Dow’s SCS is a sophisticated computer-controlled system which

uses 8 monitors to sample air quality and a computer model to predict

air quality at 83 points in the Midland area. The system limits the rate

of pollutant emissions during periods when meteorological

conditions are such that violations of the AAQS will occur unless

pollutant emissions are reduced. This is accomplished by shifting

from the use of coal as a fuel to the use of oil or natural gas.

* Dow and the MAPCC agreed that it was economically infeasible,

in view of Dow’s contractual commitment to Consumers to

reimburse it for the cost of building the nuclear power plant in

Midland, Michigan, to require the expenditure of tens or hundreds of

millions more to improve existing coal fired units or to build new coal

fired units when these units would have to be abandoned when the

nuclear plant became operational.

5

Amendments of 1977 [42 U.S.C. 7407(d)(1)], the MAPCC

designated Midland County an “attainment” area for

sulfur dioxide (App. 36-37; 44; 125-127) and submitted

this designation to EPA on December 30, 1977. (App.

136-137) EPA thereafter took the position that, in

enacting the Clean Air Act Amendments of 1977

[specifically 42 U.S.C. § 7423(a) and (b) and 42 U.S.C.

§ 7602(k) and (m)], Congress intended to bar interim use

of a SCS by a source to meet the relevant AAQS until its

continuous means of control could be placed in

operation. It contended that Congress, in enacting the

1977 Clean Air Act Amendments, had mandated use of

continuous controls in all circumstances. EPA thereafter

redesignated Midland County as a “non-attainment’’

area with respect to sulfur dioxide emissions (See App.

B — EPA non-attainment reg.) and formally rejected

Dow’s most recent Consent Order No. 01-1979 as a

revision to the Michigan State Implementation Plan

(SIP). (See App. B — EPA reg. rejecting SIP revision)‘ In

taking this action, EPA conceded that the AAQS were

being met but took the position that they were being met

through operation of a system (the SCS) which it viewed

as prohibited by the Clean Air Act Amendments of 1977.

Dow timely filed Petitions to Review with the United

States Court of Appeals for the Sixth Circuit,5 seeking

* With respect to Dow’s earliest Consent Order 12-73-05, EPA

acknowledged receiving it by letter dated July 10, 1974, stated that it

was reviewing it, and would contact the MAPCC if further

information was needed. (App. 52-53) It never thereafter contacted

the MAPCC or Dow to voice any objection to the interim use of

Dow’s SCS. With respect to Consent Order No. 10-1977, EPA

acknowledged its receipt in an exchange of letters with the MAPCC

(App. 64, 65 and 67) and thereafter caused the MAPCC to refuse to

pursue its efforts to have the Consent Order approved as a SIP

revision. (App. 104)

* The Court of Appeals had jurisdiction over the Petitions to

Review pursuant to 42 U.S.C. § 7607(b)(1). (App. 44-45)

6

review of EPA’s redesignation of Midland County,

Michigan as a “non-attainment’’ area (Docket Nos.

78-3139 and 78-3595) and its rejection of Dow’s Consent

Order No. 01-1979 as a SIP revision (Docket No.

80-3260). Dow argued that case law decided prior to the

Clean Air Act Amendments of 1977 specifically

authorized use of a SCS on an interim basis where

continuous controls were either technologically or

economically infeasible. [Natural Resources Dejense

Council, Inc. v. U. S. Environmental Protection Agency, 489

F. 2d 390 (Sth Cir. 194), reversed in part on other grounds,

sub. nom. Train v. Natural Resources Defense Council, Inc.,

421 U. S. 60 (1975); Big Rivers Electric Corporation, et al v.

U. S. Environmental Protection Agency, 523 F. 2d 16 (6th

Cir. 1975), cert. denied 425 U. S. 934 (1976); Kennecott

Copper Corporation v. Train, 526 F. 2d 1149 (9th Cir.

1975), cert. denied 425 U. S. 935 (1976); Kennecott Copper

Corporation v. Train, 424 F. Supp. 1217 (D. Nev. 1976),

reversed on other grounds, sub. nom. Kennecott Copper

Corporation v. Costle, 572 F. 2d 1349 (9th Cir. 1978); The

Bunker Hill Company v. U. S. Environmental Protection

Agency, 572 F. 2d 1286 (9th Cir. 1977)] Dow also argued

that the legislative history of the Clean Air Act

Amendments of 1977 contained comments indicating

that Congress (a) was legislatively affirming the holdings

of these cases in enacting the Clean Air Act Amendments

of 1977; (b) was mandating use of continuous controls as

a source’s final means of compliance but (c) was

continuing to authorize interim use of a SCS where a

source’s final means of continuous control had not yet

been placed in operation for reasons over which it had

no control.

The Court of Appeals, after hearing argument in the

“non-attainment” case on June 16, 1980, consolidated the

“non-attainment” case (Nos. 78-3139 and 78-3595) with

7

the “SIP revision rejection” case (No. 80-3260) since the

central issue of the legality of interim use of Dow’s SCS

was common to both cases. The Court thereafter

scheduled and heard reargument. (App. 34) On

December 9, 1980, the Court of Appeals filed its opinion

dismissing Dow’s Petitions to Review in which it held

that:

(a) even though “... some of the language relied

upon by Dow does seem to conflict with what we

believe to be the obvious and unambiguous

language of the 1977 statutory provisions quoted

above” (42 U.S.C. § 7602(k); 42 U.S.C. § 7423(a)

and (b)), the Court could ignore the legislative

history in construing the Statutory provisions

involved since the statutory provisions were “’. . .

themselves obvious and unambiguous.” (App. 6)

(b) even though the ambient air quality standards for

sulfur dioxide were being attained, the State of

Michigan could not grant Dow the variance in

question (Consent Order No. 01-1979) and revise

its SIP because of the particular levels of sulfur

dioxide then being emitted from Dow’s stacks.

(App. 6)

Dow filed a timely Petition for Rehearing and

Suggestion for Rehearing En Banc, arguing, inter alia,

that the Court’s refusal to review the legislative history

in construing the statute contravened this Court's ruling

in Train v. Colorado Public Interest Research Group, Inc.,

426 U. S. 1 (1976). Dow also argued that the Court's

holding that Dow’s Consent Order No. 01-1979 (or

variance) could not be approved as a SIP revision

because of the volume of its sulfur dioxide emissions (at

a time when the AAQS for sulfur dioxide were

admittedly being attained) was contrary to the decisions

8

of this Court in Train v. Natural Resources Defense Council,

Inc,, 421 U. S. 60 (1975) and Union Electric Co. v. U.S.

Environmental Protection Agency, 427 U. S. 246 (1976); reh.

denied 429 U. S. 873 (1977) which held that, so long as the

relevant AAQS are being met, the state — not

EPA or the courts — alone determines which sources

may be granted variances and what volume of pollutants

they may emit.

The Petition for Rehearing and Suggestion for

Rehearing En Banc was denied on February 9, 1981.

(App. 36)

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE COURT OF APPEALS IS

DIRECTLY IN CONFLICT WITH THIS COURT’S DECISION

IN TRAIN V. COLORADO PUBLIC INTEREST RESEARCH

GROUP, INC., 42° U.S. 1 (1976)

In the consolidated Petitions to Review before the

Court of Appeals, Dow argued that Congress, in

enacting the Clean Air Act Amendments of 1977, had not

intended to reverse then existing case law which held

that Supplementary Control Systems (SCS) could be used

on an interim basis to meet ambient air quality standards

where continuous controls were either technologically or

economically infeasible. Dow pointed to the legislative

history which contained comments supportive of its

position. The Cozirt of Appeals, while noting that “. . .

some of the language relied upon by Dow does seem to

conflict with what we believe to be the obvious and

9

unambiguous language of the 1977 statutory provisions

quoted above ...,” (App. 6) concluded that it need

not review the legislative history to resolve the apparent

conflict since the statutory provisions before it were“. . .

easily understandable and unambiguous.”’ (App. 6)¢®

In ignoring the legislative history as an aid in

interpreting this very complicated statute, the Court

4 erred. In Train v. Colorado Public Interest Research Group,

Inc., 426 U. S. 1 (1976), this Court reversed a Court of

Appeals decision involving an interpretation of

provisions of the Federal Water Pollution Control Act.

There, the Court of Appeals ignored the legislative

history of the Act because it found that the statute itself

was “... plain and unambiguous” — although it did

note that the legislative history was in conflict. This

Court reversed, stating:

“To the extent that the Court of Appeals excluded

reference to the legislative history of the FWPCA

in discérning ‘ts meaning, the court was in error.

As we have noted before: ‘When aid to

construction of the meaning of words, as used in

the statute, is available, there certainly can be no

‘rule of law’ which forbids its use, however

. clear the words may appear on ‘superficial

examination.’ (citations omitted) In this case, as

* The Court cited Southeastern Community College v. Davis, 442

U.S. 397 (1979) and United States v. Oregon, 366 U.S. 643 (1961) in

support of its conclusion that it need not review the legislative

history. However, neither of these cases involved a situation where

the legislative history was in fact in conflict with the “easily

understandable and unambiguous” statutory language. As noted

above, Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1

(1976) is directly in point since it does deal with a situation where, as

here, the legislative history conflicts with the meaning attributed to

the statute by the Court. .

ail

’>

10

we shall see, the legislative history sheds

considerable iight on the question before the

Court.” (426 U. S. at 9-10)

If the Court of Appeals here had considered the

legislative history of the 1977 amendments as an aid in

interpreting the statute itself, it would have noted that:

(i)

(ii)

In enacting 42 U.S.C. § 7602(k), § 7423(a) and

§ 7423(b), which call for continuous controls to

meet ambient air quality standards, Congress was

dealing with a source’s final means of control and

was not addressing the question of whether a SCS

could be operated on an interim basis to meet

AAQOS until a source’s final means of continuous

controls could be implemented.

The House Report, after discussing eight

objections to the use of tall stacks and SCS, stated

as follows:

“Testimony. — For the foregoing reasons, both the

Environmental Protection Agency and the Federal

Energy Administration testified in 1975 that the

final means of compliance should be continuotss

emissions reduction and that intermittent controls and

tall stacks should only be used as interim measures

under limited circumstances. (H. 156, 1181). The

National Academy of Sciences has concurred.

Similarly, the representative of the State and

Territorial Air Pollution Program Administrators

has testified as follows:

‘“ ‘Mr. Rogers. Does STAPPA agree with

intermittent controls or continuous controls for

stationary sources?

(iii)

11

“ ‘Mr. Barden. STAPPA passed a resolution

advocating that intermittent controls be used only

during the interim, while permanent controls are

being installed. Continuous controls should be the

method of permanent control.’ ” (H. 631-2) (H. Rpt.

at p. 91) .

Three Court of Appeals decisions (one from the

Sixth Circuit) decided prior to the 1977

amendments held that a source’s final means of

compliance with AAQS must be continuous

controls but that a state may authorize interim

use of a SCS where continuous controls were

either economically or technologically infeasible.

As to the 1977 amendments’ effect on these cases,

the House Report said:

“The Committee proposal is intended to ratify the

general thrust, if not the specific holdings, of the-

three U. S. courts of appeals which have considered

the issue of the permissibility of intermittent controls,

tall stacks, and other dispersion enhancement

techniques. NRDC v. EPA, 489 F. 2d 390 (5th Cir.

1974); Big Rivers Electric Corp. v. EPA, 523 F. 2d 16

(6th Cir. 1975); Kennecott Copper Corp. v. EPA, 526

F, 2d 1149 (9th Cir. 1975), cert. denied in each case.

(emphasis supplied)

* + +

“By defining the terms ‘emission limitation,’

‘emission standard,’ and ‘standard of performance,’

the committee has made clear that constant or

continuous means of reducing emissions must be used

to meet these requirements. By the same token,

intermittent or supplemental controls or other

temporary, periodic, or limited systems of control

12

would not be permitted as a final means of compliance.” (H.

Rpt. No. 294 at pp. 91-92) (emphasis suppli~d)

Thus, when the statutory provisions relied upon by

the Court of Appeals are read in light of the legislative

history, it is clear that Congress intended to mandate

continuous controls as the final means of compliance but

did not preclude use of a SCS on an interim basis to meet

AAQS until a source’s final means of compliance could

be brought on-line.

Thus, the action of the Court of Appeals, in refusing to

review the legislative history as an aid to interpreting the

statutory provisions before it, is in direct conflict with

Train v. Colorado Public Interest Research Group, Inc.,

supra. As this Court noted in Train, supra:

“When aid to construction of the meaning of

words, as used in the statute, is available, there

certainly can be no ‘rule of law’ which forbids its

use, however clear the words may appear on

‘superficial examination.’ ” (426 U. S. at 10)

Yet the Court of Appeals here held that: ;

“It is, however, a cardinal rule of statutory

interpretation that the courts do not turn to

legislative history to shed light on the meaning of

easily understandable and unambiguous statutory

enactments. See Southeastern Community College v.

Davis, 442 U. S. 397 (1979); United States v.

Oregon, 366 U. S. 643 (1961).’’ (emphasis

supplied) (App. 6)

As noted supra at page 9, Petitioner does not believe that

the cases cited by the Court of Appeals support the rule

of statutory interpretation it announced and that

13

Train v. Colorado Public Interest Research Group, Inc.,

supra, is controlling (and contrary to the Court of

Appeals’ holding). If Petitioner is in error, then it is

apparent that the pronouncements of this Court in Train

v. Colorado Public Interest Research Group, Inc., supra,

Southeastern Community College v. Davis, supra, and

United States v. Oregon, supra, regarding the function of

the federal courts and the sources available to them in

construing “clear and unambiguous” federal statutory

enactments are in conflict. By granting this Petition for

Writ of Certiorari, this Court can finally put to rest the

question of whether and when federal courts should

resort to the legislative history of federal statutory

enactments for guidance in construing legislative

enactments found to be “clear and unambiguous.” This

issue is clearly one of great importance to the federal

judicial system and mierits this Court’s consideration.

II.

THE DECISION OF THE COURT OF APPEALS IS DI-

RECTLY IN CONFLICT WITH THIS COURT’S DECISIONS

IN TRAIN V. NATURAL RESOURCES DEFENSE COUNCIL,

INC., 421 U. S. 60 (1975) AND UNION ELECTRIC CO. V.

EPA, 427 U. S. 246 (1976)

This Court, in two cases which are regarded by the

bench and bar as ‘seminal cases’ involving the

interpretation of the Clean Air Act of 1970, discussed the

respective roles of the states and the federal government

(EPA) in implementing the provisions of the Clean Air

Act of 1970. With respect to the formulation of a state’s

SIP and its revisionary process, this Court held:

“The agency (EPA) is plainly charged by the Act

with the responsibility for setting the national

14

ambient air standards. Just as plainly, however, it

is relegated by the Act to a secondary role in the

process of determining and enforcing the specific,

source-by-source emission limitations which are

necessary if the national standards it has set are to

be met. Under § 110(a) (2), the Agency is required

to approve a state plan which provides for the

timely attainment and subsequent maintenance of

ambient air standards, and which also satisfies

that section’s other general requirements. The Act

gives the Agency no authority to question the wisdom

of a State’s choices of emission limitations if they are

part of a plan which satisfies the standards of

§ 110(a) (2), and the Agency may devise and

promulgate a specific plan of its own only if a

State fails to submit an implementation plan

which satisfies those standards. § 110(c). Thus, so

long as the ultimate effect of a State’s choice of

emission limitations is compliance with the national

standards for ambient air, the State is at liberty to

adopt whatever mix of emission limitations it deems

best suited to its particular situation. Train v.

Natural Resources Defense Council, Inc. (421 U. S.

at 79-80) (emphasis supplied)

**+* *

“The judgments which the Agency must make when

passing on variances under § 110(a)(3) are whether

the ambient air complies with national standards, and

if so whether a proposed variance would cause a plan

to fail to insure maintenance of those standards.”

(421 U. S. at 93) (emphasis supplied)

++ *

15

“Since a variance would normally implicate only the

§ 110(a)(2)A) requirement that plans provide for

attainment and maintenance of national ambient air

standards, treatment as revisions would result in

variances being readily approved in two situations:

first, where the variance does not defer

compliance beyond the attainment date; and

second, where the national standards have been

attained and the variance is not so great that a plan

incorporating it could not insure their continued

maintenance.’’ (421 U. S. at 77) (emphasis

supplied)

Again, in Union Electric Co. v. U.S. Environmental

Protection Agency, supra, this Court held:.

‘‘Perhaps the most important forum for

consideration of claims of economic and

technological infeasibility is before the state

agency formulating the implementation plan. So

long as the national standards are met, the State may

select whatever mix of control devices it desires,

Train v. NRDC, supra, at 79, 43 L Ed 2d 731, 95S

Ct 1470, and industries with particular economic or

technological problems may seek special treatment in

the plan itself. Cf. 40 CFR §§ 51.2(b), (d) (1975); S

Rep No. 91-1196, p 36 (1970). Moreover, if the

industry is not exempted from, or accommodated by,

the original plan, it may obtain a variance, as

petitioner did in this case; and the variance, if

granted after notice and a hearing, may be submitted

to the EPA as a revision of the plan.” (427 U. S. at

266) (emphasis supplied)

Thus, so long as the relevant AAQS are being met, the

state — not EPA or a court (on review of EPA action) —

75

*%

16

determines which sources may be given variances and

what volume of pollutants they may emit.

The Court of Appeals here held to the contrary. On a

record where it was uncontested that the relevant AAQS

were being met, the Court nonetheless ruled that the

Michigan Air Pollution Control Commission could not

grant Dow the variance at issue (Consent Order

No. 01-1979) and thereafter revise its SIP. The Court so

held, stating:

4

‘. . . Dow is now emitting from its aging power

plants 39,809 tons of SO: per year. Due to

dispersion among a number of stacks and to

relatively low pollution from other sources in the

same county, Dow’s emissions have not caused

Midland County monitors to show violations of

the national air quality standards.

* + *

“This means, of course, that absent EPA’s order,

Dow’s SO: pollutants will continue to damage the

air and the environment both in Midland County

and downwind therefrom until Consumer’s [sic]

nuclear plant comes on line.”’ (App. 6)

However, as noted above, the emission of 39,809 tons of

sulfur dioxide per year by Dow is no bar to approval of

its SCS on an interim basis because the relevant AAQS

were and are being met. By saying that a state may not

authorize the emission of a given volume of sulfur

dioxide when the relevant AAQS are being met, both

EPA and the Court of Appeals arrogated to themselves a

decision-making power specifically reserved by the Act

to the state. Train v. Natural Resources Defense Council,

Inc., supra; Union Electric Co. v. U. S. Environmental

Protection Agency, supra.

‘X

17

Moreover, to the extent that the Court of Appeals

looked to the possible impact of Dow’s emissions

somewhere ‘‘downwind” rather than directing its

attention solely to the impact of Dow’s emissions in the

area of Midland County where Dow is located, such

action was completely contrary to the provisions of the

Clean Air Act as interpreted by this Court. In

determining whether to approve a variance as a revision

to a state SIP, this Court has expressly held that the

Administrator is to determine whether or not the AAQS

are being met in the area where the source is located. Train

v. Natural Resources Defense Council, Inc., supra; Union

Electric Co. v. U. S. Environmental Protection Agency,

supra. The Act confers no authority on the Administrator

(or a court) to reject a variance on the ground that the

source’s emissions, while not causing any violation of

the AAQS in the area where the source is located, might

cause unspecified “environmental damage’’elsewhere in

the country where the source’s emissions may ultimately

be carried.”

Unless this Court grants this Petition for Writ of

Certiorari, the fundamental roles of EPA and the states

under the Clean Air Act, as articulated in Train v. Natural

Resources Defense Council, Inc., supra, and Union Electric

Co. v. U. S. Environmental Protection Agency, supra, will

be inalterably changed and the role reserved to the states

irretrievably diminished. Moreover, the present

requirements of the Clean Air Act which mandate that

7 While 42 U.S.C. § 7410(a)(2)(E) provides that a SIP must contain

provisions to insure that a source’s emissions do not prevent

attainment or maintenance of AAQS in another state, there was no

evidence in the record before EPA or the Court of Appeals in this case

that Dow’s emissions were causing or contributing to a violation of

AAQS in any other state.

18

the Administrator, in reviewing a SIP revision request,

determine the impact of the source’s emissions in the

area where the source is located will be effectively

abrogated and the Administrator will be empowered to

reject state-granted variances on the ground that, while

the AAQS are being met in the area of the source and

' while its emissions are aot causing any violation of

AAQS in another state, the source’s emissions “may”

cause unspecified ‘environmental damage’ somewhere

else in the country.

CONCLUSION

This Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

R. L. DAVIS

Division Counsel

The Dow Chemical Company

Midland, Michigan 48640

(517) 636-4781

FISHER, FRANKLIN, FORD, SIMON

& HOGG

By: William C. Potter, Jr.

1700 Guardian Building

Detroit, Michigan 48226

(313) 962-5210

Attorneys for Petitioner

The Dow Chemical Company

DATED: March 31, 1981