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

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MAY %O. 1981

ALEXNE SER LL. STEVAS

. >:

No. 80-1708

Inu the Supreme Court of the United States

OCTOBER TERM. 1980

Dow CHEMICAL COMPANY, PETITIONER

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

AND ANNE M. GorsuCH, ADMINISTRATOR

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

. CAROL E. DINKINS

Assistant Attorney General

DONALD W. STEVER, JR.

BARRY S. NEUMAN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

MICHELE BEIGEL CORASH

General Counsel

LypIA M. WEGMAN

Acting Deputy Assistant General Counsel

CHRISTINA KANEEN

Attorney

Environmental Protection Agency

Washington, D.C. 20460

QUESTION PRESENTED

Whether the Clean Air Act as amended in 1977 requires

that national ambient air quality standards be met in each

air quality region by systems of continuous emission con-

trols rather than by systems dependent on dispersion tech-

niques such as intermittent emission controls, except in

circumstances defined in two provisions of the Act on which

petitioner correctly does not rely in this case.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

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

a a ES a a rr 9

Dow Chemical Co. v. Costle, 480 F. Supp.

315, appeal pending, No. 79-1491 (6th Cir.,

Gockewed Dept, @; IFT): ock ccc ccsccccccccecs 3

EPA v. National Crushed Stone Ass'n,

No. 79-770 (Dec. 2, 1980) ....ccccsccseseces 10

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

1149, cert. denied, 425 U.S.935 ............4.. 9

Natural Resources Defense Council, Inc. v.

EPA, 489 F. 2d 390, rev'd in part sub nom.

Train v. Natural Resources Defense Council,

GES Gee ao hoc acai cen d kad s4e ss 9, 10

Train v. Colorado Public Interest Research

el Me ee re es ea eee 8

Train v. Natural Resources Defense Council,

Pa Se Ree re ore reer ys 10

LAE V, SEE, OE ache Fis dcec ave vecccces 10

Union Electric Co. v. EPA, 427 U.S. 246 ...... 10

Ill

PRECEDING PAGE WAS BLANK

Statutes and regulations:

Clean Air Act, 42 U.S.C. (1970 ed.) 1857c-5 ..... 2

Clean Air Act Amendments of 1977, Pub. L.

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

WE PPO ON, Baek aos oiee nok nec cua nc, 2

42 U.S.C. (Supp. III) 7401(aX(3) ........... 5

42 U.S.C. (Supp. TH) 7407(d) .............. 5

42 U.S.C. (Supp. III) 7410(a)(2)(B) ......... 6

42 U.S.C. (Supp. HI) 7410(aX(3) ......... 4,6

42 U.S.C. (Supp. HI) 7413(d) .............. 7

42 U.S.C. (Supp. III) 7413(d)(1(E) ......... 7

42 U.S.C. (Supp. HI) 7419(d)(2) ........ remiles e

42 U.S.C. (Supp. HI) 7423(a) .:............ 6

42 U.S.C. (Supp. IID ED Cavinsaeicakaks 7

42 U.S.C. (Supp. IIT) 7602(k) .............. 6

42 U.S.C. (Supp. III) 7602(m) ............. 6

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AL |) 2

Le, SR eee ee See 2

Miscellaneous:

37 Fed. Reg. 10873 (1972) ......... oe in Be 2

<3 Fed, Bag. T9566 (190)... os ccc cc wee ce 4

H.R. Rep. No. 95-294, 95th Cong., Ist Sess.

seiauitie!’ Ae COU hI rin. 21 ey am Ogee 8,9

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1708

Dow CHEMICAL COMPANY, PETITIONER

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

AND ANNE M. GORSUCH, ADMINISTRATOR

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-13) is not

yet reported. The decision and order of the Administrator

of the Environmental Protection Agency (Pet. App. 26-33)

are reported at 45 Fed. Reg. 19566 (1980).

JURISDICTION

The judgment of the court of appeals (Pet. App. 35) was

entered on December 9, 1980. A petition for rehearing was

denied on February 9, 1980 (Pet. App. 36). The petition for

a writ of certiorari was filed effective April 2, 1981. The

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

1254(1).

STATEMENT

On May 31, 1972, the Administrator of the Environmen-

tal Protection Agency (“EPA”), acting pursuant to Section

110 of the Clean Air Act, 42 U.S.C. (1970 ed.) 1857c-5,!

approved the Michigan State Implementation Plan for

meeting national ambient air quality standards. That plan,

inter alia, established sulfur dioxide and particulate matter

emission limitations for power plants owned and operated

by petitioner Dow Chemical Company as part of its indus-

trial facilities in Midland, Michigan. 37 Fed. Reg. 10873

(1972); 40 C.F.R. 52.1170 et seg. The implementation plan

also established compliance schedules requiring Dow to

meet its sulfur dioxide emissions limitation by July 1, 1975,

and its particulate matter emissions limitations by April 1,

1975. 40 C.F.R. 52.1175(d)(2)(ii) and (e).

Dow planned to comply with these requirements by shut-

ting down its power plants and purchasing process steam

froma nuclear plant then under construction and scheduled

for completion in 1974. By 1974, however, Dow became

aware that the nuclear plant would not be completed until

several years after the 1975 attainment dates (Pet. 3; Pet.

App. 27).? To meet the 1975 deadline, Dow chose instead to

'The Clean Air Act was substantially amended and transferred to 42

U.S.C. (Supp. III) 7401 er seq., by the Clean Air Act Amendments of

1977, Pub. L. No. 95-95, 91 Stat. 685,42 U.S.C. (Supp. III) 7401 er seg.

Subsequent citations are to the Act as amended in 1977, except where

otherwise noted.

“Pet. App. 27” refers to a particular section of EPA’s formal ruling

disapproving the proposed revision of the implementation plan con-

cerned in this case. That ruling and another EPA ruling are reproduced

in both the main appendix to the petition and in a supplemental

appendix (“Supplemental Appendix B”) filed by Dow; but the latter,

although more readable, is not paginated. We shall refer only to the

paginated appendix, but we note that any reference to a section within

pages 14 to 33 of “Pet. App.” indicates text that may also be found in the

supplemental appendix.

use an intermittent control system. Dow purchased and

installed in its coal-fired boilers equipment that enables it to

shift from coal to oil or natural gas when it determines that

atmospheric conditions are poor and pollution levels might

exceed national ambient air quality standards. When

atmospheric conditions permit, Dow continues to burn coal

(Pet. App. 27). National ambient air quality standards

(hereinafter “national standards”) are met when ground

level concentrations of a particular pollutant, as measured

by monitoring devices in the immediate area, do not exceed

specified limits (id. at 30). Dow’s means of complying

with national standards is known as a “ ‘dispersion tech-

nique’ ” because it permits the emission of pollutants in

volumes that might exceed the standards if it were not for

the fact that atmospheric conditions disperse some portion

of the pollutants to other regions before they can concen-

trate and be measured at ground level near the source (id. at

5, 30, 32; see also id. at 10-13).

On May 17, 1974, Dow and the Michigan Air Pollution

Control Commission (“MAPCC”) entered into consent

order No. 12-73-05, purporting to authorize Dow to post-

pone final compliance with its sulfur dioxide emission lim-

itation until July 1, 1980, the revised projected date for

completion of the nuclear plant. In the interim, the order

authorized Dow to use its intermittent control system (Pet.

App. 27, 46-50).3

3MAPCC forwarded a copy of this order to EPA as “a ‘compliance

schedule’ ”; but it did not ask EPA to consider the order as a revision of

the state implementation plan. Dow Chemical Co. v. Costle, 480 F.

Supp. 315, 317 (E.D. Mich. 1978), appeal pending, No. 79-1491 (6th

Cir., docketed Sept. 4, 1979). Accordingly EPA took no action on the

order. In Dow Chemical Co. v. Costle, supra, Dow sought to compel

EPA to approve the consent order as an implementation plan revision;

the district court granted EPA’s motion to dismiss for lack of subject

matter jurisdiction.

By July 1977, it had become apparent that completion of

the nuclear plant would extend beyond 1980. Dow and

MAPCC executed a new consent crder that did not extend

Dow’s compliance date, but provided that Dow would

begin burning oil or natural gas continuously as of July 1,

1980. Use of the intermittent control system was again

permitted until that date (Pet. App. 27, 53-60). At an

MAPCC meeting attended by a Dow representative, an

EPA spokesman stated that operation of an intermittent

control system in lieu of constant emission controls was

unacceptable (id. at 84, 86, 104).

Further delays pushed back the nuclear plant’s projected

completion date from 1980 until the end of 1982 (Pet. 3).

MAPCC and Dow therefore entered into further negotia-

tions, which culminated in a new consent order, APC No.

01-1979. This order (1) removed the requirement that Dow

commence continuous burning of compliance fuels by July

1, 1980, and (2) authorized the continued use of an intermit-

tent control system until December 31, 1982, at which time

Dow would either purchase steam from the nuclear plant (if

completed)‘ or use cleaner fuel on a continuous basis (Pet.

App. 27, 70-77).

On February 14, 1979, this new consent order was for-

mally submitted to EPA as a proposed revision of the state

implementation plan pursuant to 42 U.S.C. (Supp. III)

7410(a)(3). On March 26, 1980, after publishing in the

Federal Register a proposal to disapprove the revision and

soliciting comments thereon, EPA took final action disap-

proving the proposed implementation plan revision (45

Fed. Reg. 19566 (1980); Pet. App. 26-33). In taking this

action, EPA noted, inter alia, (1) that the Clean Air Act as

amended in 1977 requires that national standards be met

‘In fact, Dow now states that the nuclear plant will not be operational

until 1984 (Pet. 3 n.1).

through continuous emission reductions alone, /.e., without

consideration of the effects of dispersion techniques, (2)

that the consent order does not provide for continuous

emission reductions, and (3) that EPA was therefore

required to disapprove it pursuant to 42 U.S.C. (Supp. III)

740 1(a)(3).

Dow filed a petition to review that action in the court of

appeals. That petition was consolidated with two other

petitions filed by Dow seeking review of EPA’s designation

of Midland County as a,“nonattainment” area for sulfur

dioxides pursuant to 42 U.S.C. (Supp. III) 7407(d), i.e., an

area in which national standards have not been attained.

The cases were consolidated because the court of appeals

concluded that all three petitions presented the question

whether Congress, in the Clean Air Act Amendments of

1977, precluded EPA from considering the effects of any

intermittent pollution control system, used on an interim

basis, in EPA’s determination whether national standards

are being met in a particular area (Pet. App. 2, 3-4).

The court of appeals denied the petitions for review,

concluding (Pet. App. 4-5) that the plain language of the

statute refuted Dow’s contention that a valid state imple-

mentation plan could permit Dow to continue using its

intermittent control system on an “interim” basis where the

consent orders with the MAPCC established that it is eco-

nomically infeasible for Dow to employ a continuous con-

trol system before the nuclear plant is in operation. The

court considered the legislative history proffered by Dow in

support of its construction of the statute, but concluded

(Pet. App. 6; emphasis added) that although “some of the

language [in the legislative history] relied upon by Dow”

appeared to conflict with the statute’s “unambiguous lan-

guage,” the legislative history does not warrant construing

the statute in a manner contrary to its plain meaning.

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with decisions of this Court of any other court

of appeals. For these reasons, and because Dow’s conten-

tion with respect to the permissibility of its “interim” use of

an intermittent control system concerns an interim use

extending through nearly a decade, with no assured end in

sight, review by this Court is unwarranted.

1. The plain language of the Clean Air Act as amended in

1977 refutes Dow’s contention that the Administrator of

EPA is required to approve a revision of a state implemen-

tation plan that permits Dow to continue relying, on an

“interim” basis, on its system of intermittent controls of

sulfur dioxides. The Clean Air Act requires the Administra-

tor to approve a state implementation plan if, inter alia, it

includes “emission limitations” (42 U.S.C. (Supp. III)

7410(a)(2)(B)); and he must approve revisions to a state

implementation plan if it meets all the requirements appli-

cable to the original plan (42 U.S.C. (Supp. II) 7410 (a)(3)).

In 1977, Congress defined “emission limitation” as a

requirement limiting “the quantity, rate, or concentration

of emissions of air pollutants on a continuous basis, includ-

ing any requirement relating to the operation or mainte-

nance of a source to assure continuous emission reduction.”

42 U.S.C. (Supp. III) 7602(k) (emphasis added). Congress

similarly defined “means of emission limitation” as “a sys-

tem of continuous emission reduction * * *.” 42 U.S.C.

(Supp. III) 7602(m). In another section added in 1977 (42

U.S.C. (Supp. III) 7423(a)), Congress declared, without

exception, that “dispersion technique[s]” not in use before

1970 could not be used to affect “in any manner” the “degree

of emission limitation required for control of any air pollu-

tant under an applicable implementation plan”—i.e.

national standards must be met with systems that do not

- |

depend on such techniques. It defined “ ‘dispersion tech-

niques’ ”as including “any intermittent or supplemental con-

trol of air pollutants varying with atmospheric conditions.”

42 U.S.C. (Supp. IID) 7423(b).

Congress was aware, however, of certain circumstances

in which reliance on dispersion techniques as a means of

meeting the national standards might be necessary. It thus

provided two exceptions to the general prohibition against

such reliance. In 42 U.S.C. (Supp. III) 7419(d)(2), the Act

allows the Administrator to grant temporary waivers of

constant emission reduction requirements for primary non-

ferrous smelters in certain cases. In 42 U.S.C. (Supp. II)

7413(d), it allows the Administrator to grant a delayed

compliance order to any Stationary source that demon-

strates, inter alia, that it is unable to comply with the

applicable implementation plan’s requirements. Such orders,

however, may permit deferral of compliance only until

July 1, 1979, or until three years after the original date for

final compliance, whichever is later. 42 U.S.C. (Supp. II]

7413(d)(1)(E).

The court of appeals correctly read the language of the

1977 Act as clearly inconsistent with Dow’s “interim basis”

argument. Dow does not purport either to operate nonfer-

rous smelters or to have applied for a delayed compliance

order, and even had it successfully applied for such an

order, it would not have been entitled to the lengthy delay it

is seeking. Thus, the general prohibition against meeting

national standards through intermittent controls is fully

applicable.

2. Contrary to Dow’s contention (Pet. 8-13), the court of

appeals did not ignore the legislative history of the 1977

Amendments. It “read and considered the language relied

on by Dow” (Pet. App. 6) and still found Dow's proposed

construction of the Act unpersuasive. The court agreed

(ibid.) that “some of the language” relied on by Dow seemed

to conflict with the plain language of the statute, but it

appended to its decision the portions of the relevant legisla-

tive report it evidently found more indicative of congres-

sional intent (Pet. App. 7-13). It is clear, therefore, that the

court’s reference to authorities standing for the proposition

that “courts do not turn to legislative history to shed light

on the meaning of easily understandable and unambiguous

statutory enactments” (id. at 6), does not, in context, con-

flict with Train v. Colorado Public Interest Research

Group, Inc., 426 U.S. 1 (1976), respecting the use of legisla-

tive history in construing a statute.

The court of appeals’ refusal to read the legislative history

as overcoming the plain language of the statute was correct.

In a series of cases litigated in the early to mid-1970’s (see

Pet. 6), various parties had contended that the Administra-

tor of EPA should approve state implementation plans

under the Clean Air Act that permitted pollution sources to

rely on techniques, such as tall stacks or intermittent

releases of emissions, that prevented concentrations of pol-

lutants in violation of national standards ina given region

by dispersing them into other areas, rather than relying on

continuous control systems that limited the total amounts

of pollutants emitted. Congress, concerned that use of dis-

persion techniques would undermine the goals of the Clean

Air Act, since such control systems allowed a state to meet

standards by shifting its pollution elsewhere (see H.R. Rep.

95-294, 95th Cong., Ist Sess. 81-86 (1977) (hereinafter “H.

Rep.”)), amended the Act in 1977, as explained above, to

make the federal policy concerning dispersion techniques

completely clear. The House Report generally condemns

use of dispersion techniques, particularly where sulfur diox-

ides and other sulfates are concerned, primarily because

atmospheric loading of such pollutants can adversely affect

the health of human beings and plant and animal life

hundreds of miles downwind from the source, even though

national ambient air quality standards are met in the region

in which the source is located. H. Rep. 95-294 at 84-87,

128-133. To be sure, the report was primarily critical of

industry contentions that intermittent control systems were

permissible means of meeting national standards without

regard to whether the controls were permanent or tempo-

rary (H. Rep. 95-294 at 81), but suggestions in the legislative

history that such control systems might be acceptable on a

temporary basis in certain circumstances are entirely con-

sistent with the plain language of the statute, which, as

noted above, provides for such temporary use in the provi-

sions concerning nonferrous smelters and delayed com-

pliance orders.

The report’s agreement (H. Rep. 95-294 at 91-92) with the

“general thrust” of three court of appeals decisions ( Natural

Resources Defense Council, Inc. v. EPA, 489 F. 2d 390 (5th

Cir. 1974), rev’d in part sub nom. Train v. Natural Re-

sources Defense Council Inc., 421 U.S. 60 (1975); Big Rivers

Electric Corp. v. EPA, 523 F. 2d 16 (6th Cir. 1975), cert.

denied, 425 U.S. 934 (1976); Kennecott Copper Corp. v.

Train, 526 F. 2d 1149 (9th Cir. 1975), cert. denied, 425 U.S.

935 (1976)) similarly does not compel acceptance of Dow’s

reading of the statute. The thrust of the decisions is simply

that pollution was to be controlled, if at all possible, by

emission reduction rather than by dispersion techniques.

While Kennecott Copper specifically approved interim use

of intermittent controls (526 F. 2d at 1156, 1158-1160), that

case concerned nonferrous smelters.

Finally, inasmuch as the court below was upholding

EPA’s construction of the statute, it had an additional basis

for its holding. “It is by now a commonplace that ‘when

faced with a problem of statutory construction, this Court

shows great deference to the interpretation given the statute

by the officers or agency charged with its administration.’ ”

EPA v. National Crushed Stone Ass'n, No. 79-770 (Dec. 2,

1980), slip op. 18, quoting Udall v. Tallman, 380 U.S. 1, 16

(1965) (footnote omitted).

3. Dow’s contention (Pet. 13-18) that the court of

appeals’ decision conflicts with this Court’s construction of

the Clean Air Act in Train v. Natural Resources Defense

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

EPA, 427 U.S. 246 (1976), is without merit. In Train the

Court merely held that, under the statute as it then existed,

the states were free to make their own “choices of emission

limitations”so long as national standards are met (421 U.S.

at 79; emphasis added), i.e. a state was free to choose the

mix of emission limitations imposed on sources in the state.

This point was reiterated in Union Electric (427 U.S. at

266), another case concerned with the statute prior to the

1977 amendments. The Court added (id. at 267: emphasis

added) that each state “has virtually absolute power in

allocating emission limitations so long as the national

standards are met,” and it held that because the Clean Air

Act is a technology-forcing statute, a state could insist on

more stringent emission requirements, even if the Adminis-

trator deemed them economically and technologically

infeasible.

In our view, requirements that permit national standards

to be met through the use of dispersion devices such as

intermittent controls did not constitute “emission limita-

tions” even before the 1977 amendments, since they did not

continuously limit the amount of pollutants released into

the atmosphere. In any event, the Statutory language now

leaves no doubt that control strategies like the one used by

Dow do not qualify as emission limitations (see page 6,

supra), and the Administrator thus properly has refused to

approve the proposed state implementation plan revision

that would permit them, even on an interim basis, where

they do not come within the limited exceptions provided in

the Act.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respec:fully submitted.