Amicus Brief — Alabama Power Co. v. Sierra Club

WOTION FILED

MAY 2.9 1384 No. 83-1429

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ALABAMA POWER CO., et al

Petitioners,

-

SIERRA CLUB, et al,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

and

BRIEF OF AMICUS CURIAE THE PROCTER &

GAMBLE PAPER PRODUCTS COMPANY IN

SUPPORT OF A PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

DAVID E. ROSS

(Counsel of Record)

Senior Counsel

The Procter & Gamble Paper

Products Company

301 East Sixth Street

Cincinnati, Ohio 45202

(513) 562-3996

Attorney for Amicus Curiae

The Procter & Gamble Paper

Products Company

ee an TT TE ARNE

No. 83-1429

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ALABAMA POWER CO., et al.,

Petitioners,

Vv.

SIERRA CLUB, et al,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Procter & Gamble Paper Products Company (here-

inafter ‘Procter & Gamble’) respectfully moves pursuant

to Rules 36 and 42 of the Rules of the Supreme Court

of the United States for leave to file the attached Brief

Amicus Curiae in this case.

The written consent of the Petitioners has been obtained and

has been filed with the Clerk of this Court. The con-

sent of the Respondents Sierra Club, Natural Resource Defense

Council, and the states that participated below

on their behalf was requested but has been refused.

Procter & Gamble requests that this motion be granted

because the decision by the Court of Appeals invalidating

certain of EPA's stack height regulations threaten to adversely

affect at least one of the company’s manufacturing

plants, and the company therefore has a strong interest

in the disposition of this case. The company represents

2

a different type of industrial facility than the parties

herein, and believes that the views submitted in the

attached brief concerning the impact of the lower court’s

decision on its efforts to comply with the Clean Air Act will

be of assistance to the Court.

Respectfully submitted,

DAVID E. ROSS

(Counsel of Record)

Senior Counsel

The Procter & Gamble Paper

Products Company

301 East Sixth Street

Cincinnati, Ohio 45202

(513) 562-3995

Attorney for Amicus Curiae

The Procter & Gamble Paper

Products Company

TABLE OF CONTENTS

Page

MT EEE ovo sesccorcevocrcserccoccess I

TE cccisceeneeceocsescccccies II

Interest of the Amicus Curiae ..............+.. 1

Summary Of Argument .....cccsccccsccvcccees 2

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Il.

TABLE OF AUTHORITIES

Cases: Page

Sierra Club, et. al u EPA, 719 F.2d 436

ne See EE ae, sg See, oat hae ped Dh a ade oe 1,4

Statutes:

The Clean Air Act, 42 U.S.C. §7401, et seg.

(Supp V 1981)

§109, 42 U.S.C. §7409 (Supp. V 1981) ......... 3

§123, 42 U.S.C. §7423 (Supp. V 1981) ......... passim

Regulations:

ge RP a re rer 5

40 C.F-R. §51.1(z), (ff)}-(mm) (1983) ............. 2

oe ARC hl). err 2

eA SOAP CRE ho cc base teenGesecne' 2

Wisconsin Administrative Code, §NR 154.12(7) .. 1

Federal Registers:

45 Fed. Reg. 67348, et seg. (1980).............. 5

47 Fed. Reg. 5864, et seq (1982) ............... 2

No. 83-1429

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ALABAMA POWER CO., et al,

Petitioners,

Vv.

SIERRA CLUB, et al,

Respondents.

BRIEF OF AMICUS CURIAE THE PROCTER &

GAMBLE PAPER PRODUCTS COMPANY IN

SUPPORT OF A PETITION FOR WRIT

OF CERTIORARI

The Procter & Gamble Paper Products Company (‘‘Procter

& Gamble’’) respectfully submits this Brief as amicus

curiae in support of the Petition for Writ of Certiorari to

review the judgment of the United States Court of Appeals

for the District of Columbia Circuit in Sierra Club,

et al u EPA, 719 F.2d 436 (DC. Cir. 1983).

INTEREST OF THE AMICUS CURIAE

Procter & Gamble produces household consumer paper

products such as kitchen towels, and facial and bathroom

tissue. One of the Company’s plants is subject to emission

limits set forth in a state implementation plan’ which

‘Wisconsin Administrative Code, §NR 154.12(7).

2

was developed by a cooperative effort between local indus-

try and the state and federal regulatory authorities over

a period of more than five years. This plan relies in part

upon the stack height regulations? promulgated by the

Environmental Protection Agency (EPA) under the Clean

Air Act.* Since those regulations were set aside by the

court below, that implementation plan is now in jeopardy.

If the implementation plan is also eventually set aside,

not only will the extensive efforts underlying its develop-

ment be negated, but the probable cost to the company and

other participants in the state implementation plan will be

many millions of dollars.

SUMMARY OF ARGUMENT

In rejecting the ‘‘good engineering practice” regulations

promulgated by EPA, which regulations reflected a reason-

able interpretation of §123 of the Clean Air Act, the

Court of Appeals improperly substituted its judgment for

that of the EPA. The resulting adverse impact of the

decision on industry will be substantial. Industrial facilities

face the prospect of being forced to undertake exceedingly

costly efforts to reduce air emissions in circumstances where

the protection of the public health and welfare has already

been assured. As explained hereinafter, Procter & Gamble

faces just such a situation, where the decision threatens the

continued existence of an effective implementation plan which

was developed at great expense over a period of years in

compliance with the Clean Air Act. Such a result cannot be

justified under the Act.

ARGUMENT

The decision by the Court of Appeals, if left standing,

will significantly and adversely affect numerous industrial

*47 Fed. Reg 5864 et seg. (1982); 40 C.F.R. §§51.1(z), (ff}4mm), §1.12(j+1),

and 51.18(1) (1983).

*42 U.SC. §§7401, et seg. (Supp. V 1981) (hereinafter referred to as the

“‘Act’’). (All further citations will be to the Act, with paralle] citations to

the U.S. Code given in the Table of Authorities.)

3

air emission sources throughout the country. While the

regulations in question may appear at first blush to be

but peripheral technical minutiae, they in fact go to the

very heart of the manner in which compliance with the

Clean Air Act can be achieved. The subject regulations

prescribe how one of the critical variables — stack height

— is to be taken into account by the regulatory authorities

in establishing limitations for air emission sources. The

emission limitations are in turn set at a level to ensure

attainment of the federal National Ambient Air Quality

Standards (““NAAQS”’), which were designed to protect the

public health and welfare.‘ When establishing an emission

limit for a particular source, the regulatory agency must

consider the rate of emissions as well as the location of the

point of discharge — or more accurately, the stack height

credit calculated pursuant to the subject regulations — in

order to ascertain the impact on ambient concentration

levels. Since the thrust of the decision by the Court of

Appeals is that any such credit must be minimized,

many current state implementation plans will have to be

revised, with the result that affected industrial sources

may have to incur considerable expense to reduce emissions

even when current ambient concentration levels pose no

threat to the public health and welfare.

Historical engineering practice generally provided that

stacks were to be 2% times higher than the building

height in order to avoid downwash problems. As explained by

the Court of Appeals, the response by some companies

‘Section 109 of the Act requires the promulgation of national primary

ambient air quality standards (‘primary standards”) and national second-

ary ambient air quality standards (“secondary standards”). The primary

standards are ambient standards ‘the attainment and maintenance of

which in the judgment of the [EPA] Administrator, based on such criteria

and allowing an adequate margin of safety, are requisite to protect public

health.” §109(b)(1). The secondary standards “shall specify a level of air

quality the attainment and maintenance of which .. . is requisite to pro-

tect the public welfare ... .” §109(b)(2).

4

to the Clean Air Act amendments of 1970 was to build

stacks taller than historical engineering practice in

order to minimize or avoid the need to reduce emissions.

Sierra Club v. EPA, 719 F.2d 436, 439 (D.C. Cir. 1983).

The response by Congress to that practice was provided

in 1977 by §123 of the Clean Air Act, prompting the

Court of Appeals to correctly conclude that ‘“‘the entire

purpose of the statute was to remedy an abuse that had

arisen whereby polluters were building stacks solely to

evade Clean Air Act requirements ....” Id. at 447.

However, in sharp contrast to such a limited purpose

underlying §123, the expansive reading of that section

by the D.C. Circuit imputes to Congress an intent to

create a detailed and stringent emission reduction pro-

gram which 1) places major new administrative burdens

on state regulatory agencies, 2) requires the use of

fictitious data in calculating and establishing emission

limitations, and 3) retroactively threatens or reduces the

stack height credit te be given for stacks which were built

or raised in accordance with historical engineering prac-

tice after 1970. If Congress had in fact intended to create

such drastic and fundamental changes, the language

employed would certainly have been clearer and more

direct than that used in §123.

In rejecting key provisions of EPA’s ‘‘good engineering

practice’ (GEP) regulations, the Court of Appeals

announced that “two precepts” represented “the heart”’ of its

interpretation of §123: 1) the historical ‘‘conservative’”’

engineering rule which EPA had previously embraced — the

2% times building height rule — was irrelevant, and 2) EPA

must err on the side of reducing stack height. Jd. at 450.

However, neither of these principles finds any persuasive

basis of support in the Act or legislative history, and

in fact they fly in the face of the statutory command

that GEP regulations ‘insure’ against unacceptable

downwash. As set forth in Petitioners’ brief, the D.C.

Circuit in this case substituted its judgment for that

5

of the EPA, and in so doing, improperly failed to accord

adequate weight or deference to the reasonable inter-

pretation of the statute by the agency which was specifi-

cally charged with implementing it. The resulting severe,

adverse impact of this decision on the states and industry

in attempting to comply with the requirements of The

Clean Air Act is illustrated by the following case history.

In October 1980, an area in Wisconsin which included

the City of Green Bay was designated by EPA as non-

attainment’ for the primary 24-hour NAAQS for sulfur

dioxide.* However, almost two years prior to that time,

Procter & Gamble and five other companies located in

the Green Bay area recognized that problem and initiated

a voluntary, joint effort to assist the state in the devel-

opment of a reasonable implementation plan in compliance

with the requirements of the Act. This ad hoc industry

group retained an environmental consulting firm to conduct

the necessary computer modeling to show the anticipated

impact of the numerous multi-plant operating variables

on the ambient air. The group and its consultant worked

closely with the EPA and the state agency, the Wisconsin

Department of Natural Resources, to ensure that the

resulting plan met all federal and state requirements.

The implementation plan which ultimately resulted from

this effort was shown to be capable of achieving the appli-

cable ambient standard primarily as a result of commit-

ments by the group members to use lower sulfur content

fuel and, for certain facilities, to build new ‘‘good engineer-

ing practice” height siacks in accordance with the EPA

regulations at issue here. In December 1983, this imple-

mentation plan was adopted by the State of Wisconsin’ and

has been forwarded to EPA for its approval.

*45 Fed. Reg. 67348 et seg. (Oct. 10, 1980).

*40 C_F.R. §50.4 (1983).

"See footnote 1 and accompanying text.

The work which went into the development of the

so-called Green Bay sulfur dioxide implementation plan

has been informaily acknowledged by EPA as representing

one of the most comprehensive and exhaustive efforts to

date in the development of a state implementation plan.

It is estimated that the total expenditure by the industry

group for developing its plan was about $1 million. The

cost for the consultant’s modeling work alone exceeded

$500,000. In addition, an enormous amount of time and

effort was devoted by representatives from both the regu-

latory agencies and industry toward the end of bringing

the quality of air in Green Bay into compliance with the

standards of the Clean Air Act.

The results of this successful effort are now in jeopardy

because of the ruling by the DC. Circuit. By casting aside

the traditional engineering concept of ‘““GEP”’ stack

height that had been applied by both industry and regu-

latory agencies in this effort, the lower court’s decision

could require reformulation of the requirements of this

plan based on false stack height assumptions. The time,

effort and money spent by industry and the various

governmental agencies over the past five years may now

have to be totally discarded.

The disruption and confusion injected into the air

quality planning process by the lower court’s decision

provides no commensurate benefit in terms of furthering

the statutory goal of protecting public health. The Green

Bay plan which the industry group helped develop will

attain the primary NAAQS, which, by definition, means

that the protection of public health in Green Bay is

assured.® Since that area is now projected to be attain-

ment for sulfur dioxide as a result of the current implemen-

tation plan, there is simply no reason why that plan

"See footnote 4.

7

should be changed or revised except for the excessively

broad reading of the Act by the DC. Circuit.

If the ruling below requires that the sulfur dioxide issue

be reopened in Green Bay, there will almost certainly be

severe economic consequences to that community. During

the course of developing the current plan, the estimated

compliance costs for the six affected companies over a

seven year period was $52 million. If stack height must

now be assumed to be lower than it is in reality, sub-

stantial additional control measures could be required.

In order to develop some insight into the potential

magnitude of these costs, it is useful to refer to an

alternative plan that was considered at the same time the

existing plan was developed. This alternative would have

involved additional emission controls, including scrubbing

by at least one of the affected facilities. The added, or

incremental, cost to the group of this alternative control

plan was estimated by the industry group to require

expenditures of slightly more than $26 million annually.

According to an economic consultant retained by the

industry group, National Economic Research Associates,

Inc. (NERA), this cost differential translated to a reduced

rate of employment growth in the Green Bay area in

future years. NERA also confirmed that the voluntarily-

developed plan which has now been adopted is the most

cost effective plan available. The alternative plan which

would increase the costs of the six companies to do business

in Green Bay by millions of dollars per year would con-

stitute a significant and unwarranted economic penalty,

based solely on the requirement that these facilities assume

a false stack height in air quality modeling analysis. This

result would serve no public health or welfare objective,

and cannot be justified under the Clean Air Act.

CONCLUSION

For the reasons stated, the Petition for Certiorari should

be granted.

Respectfully submitted,

DAVID E. ROSS

(Counsel of Record)

Senior Counsel

The Procter & Gamble Paper

Products Company

301 East Sixth Street

Cincinnati, Ohio 45202

(513) 562-3995

Attorney for Amicus Curiae

The Procter & Gamble Paper

Dated: May 25, 1984 Products Company