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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 939

## Text

MAY %O. 1981

ALEXNE SER LL. STEVAS

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No. 80-1708

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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)

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TABLE OF CONTENTS
Page
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CAE Pood ww cn kn ads C40 Bae ehs cha aw shee beabe 2
ET Sr dik ws oes ane we cae h CORES Sar aM MADD Sw Oes 6
RR Sa et er ee See Mee ee 11
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

IV

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

eh ee re ee eee 2
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

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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).

2

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.

2

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.

4

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).

5

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.

6
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

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7

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

8

(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

9

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.’ ”

10

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

6%

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.

WADE H. McCREE, JR.
Solicitor General

CAROL E. DINKINS
Assistant Attorney General

DONALD W. STEVER, JR.
BARRY S. NEUMAN
Attorneys

MICHELE BEIGEL CORASH
General Counsel

LypIA M. WEGMAN
Acting Deputy Assistant General Counsel

CHRISTINA KANEEN
Attorney
Environmental Protection Agency

May 1981

DOJ-1981-05

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1606%3A5. Public record. Not legal advice.