Petition for Writ of Certiorari — Francisco Enterprises, Inc. v. Kirby

Supreme Court brief1974

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IN THE MICRAEL ROBIN WP

SUPREME COURT OF THE UNITED STATES

Ooroser TERM 1973

PORTLAND CEMENT CORPORATION

An Illinois Not-For-Profit Corporation

Petitioner

ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

Respondent

MEDUSA CORPORATION

NORTHWESTERN STATES PORTLAND CEMENT CO.

Intervenors

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rosert E. HayTHorne

130 East Randolph Drive

Chicago, Illinois 60601

Epwarp W. Warren

1776 K. Street N.W.

Washington, D.C. 20006

Counsel for Petitioner

Of Counsel:

KmRLAND & Exuis

130 East Randolph Drive

Chicago, IIlinois 60601

December 27, 1973

PAGE

GD SUE Sacncncccncccccccncenscccessceasacans a

POMIIOE k a cnc csscoccecncccnsscsccscccscecens 2

Questions presented 2

Statutes and Regulatiotrnr s 3

Statement of the Case ..............cc cece eee eens 3

Reasons for granting the writ . 9

1. The failure of the Court below to direct EPA

to consider, weigh and explain the expected

environmental benefit and the effect on produc-

tivity concerns vital questions of federal law

which have not been, but should be, settled by

r enen.

2. The failure of the Court below to set the stand-

ards aside is in direct conflict with a recent

decision of this Court and many decisions of

other Appeals Courts as to the proper inter-

pretation of Section 706 of the Administrative

Procedure Act. (5 U.S.C. § 706) )

3. In ruling that E.P.A. need not explain differ-

ences in levels of pollution control required of

different industrial sources, the Court below

decided an important question of Federal Law

in conflict with applicable decisions of this

Court and the United States Constitution ....

4. The wide disparity in treatment between en-

vironmental and other considerations and their

proponents established by the Court below

departs so far from the accepted and usual

course of judicial proceedings that this Court’s

power of supervision is required ............

PAGE

„„ n 22

Appendix

Decision of Court of Appeals A.l

Excerpts from Federal Regulations concerning

Standards of Performanee A.54

Excerpts from Administrative Procedure Act .... A.56

Excerpts from Clean Air A et A.57

Excerpts from National Environmental Policy Act A.61

Citations

Casxs:

Calvert Cliffs’ Coord. Comm. v. A. E. C., 449 F.2d

/// III.. 19, 21

Camp v. Pitts, 411 U.S. 138 (1973) . . .. 4, 14, 15, 16, 21

Chrysler Corp. v. D. O. T., 472 F. 2d 659 (6th Cir.

77777; ˙A Am K 15

Citizens’ Comm. for Hudson Valley v. Volpe, 425

, accectamesnceees 20

Citizens to Preserve Overton Park v. Volpe, 401

en den 4, 14

Essex Chemical Corp. et al v. Admin. and Appa-

lachian Power Co. et al v. E. P. A., Nos. 72-1072,

72-1079 (D.C. Cir. 9-10-73) — F. 2d — . .10, 13, 21

Green Cty. Planning Bd. v. F. P. C., 445 F.2d 412 (2d

Cir. 1972), cert. den., 409 U.S. 849 (1972) ..... 19

H & H Tire Co. v. D.O.T., 471 F.2d 350 (7th Cir.

EP Er errr errr TT. Terr 15

PAGE

International Harvester Co. et al v. Administrator,

478 F. 2d 615 (D. C. Cir. n 21

Kennecott Copper Co. v. E.P.A., 462 F.2d 846

PM hihi ¹·¹Ü1 ÜiAi X 16, 21

Nat! Resources Def. Council, Inc. v. Morton, 458

nen . 19, 21

Richardson v. Belcher, 404 U.S. 78 n 16

Royster Guano C. v. Virginia, 253 U.S. 412 (1920) 17

Scenic Hudson Preservation Conf. v. F. P. C., 354

F. 2d 608 (2d Cir. 1965 ))) 15

Sierra Club v. Morton, 405 U.S. 727 . 20

MISCELLANEOUS:

Berger, Administrative Arbitrariness: A Syn-

thesis, 78 Yale L. J. 965 ( n 4

Developments in the Law—Equal Protection, 82

Harv. L. Rev. 1065 ME ĩ ˙ » 17

Environmental Quality, Annual Rept. C. E. O.,

„„ „ „ as: 5

H.R. Rept. No. 93-275, 93d Cong. 1st Sess.

66666666 „„. 11

Scientific American, Vol. 228, No. 6 (June 1973) .. 18

The Cost of Clean Air, Annual Rot. of E.P.A. Ad-

ministrator, (U.S. G.P.O. n 4, 5, 13

Wall Street Journal, Dec. A en 18

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term 1973

PORTLAND CEMENT CORPORATION

An Illinois Not-For-Profit Corporation

Petitioner

ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

Respondent

MEDUSA CORPORATION

NORTHWESTERN STATES PORTLAND CEMENT OO.

Intervenors

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner, Portland Cement Association, prays that a

Writ of Certiorari issue to review the decision and order

of the United States Court of Appeals for the District of

Columbia Circuit entered in this case on June 29, 1973.

Opinion Below

The opinion of the Court of Appeals for the District of

Columbia Circuit, not yet reported, appears in the Appendix

hereto. The petition below was filed initially, as provided

in the statute, with the Court of Appeals. Thus, there was

no trial court action or decision.

Jurisdiction

The decision and order of the Court below was entered

on June 1973. A timely petition for rehearing en banc

was denieu on October 1, 1973 (A. 53a), and this petition

for certiorari was filed within 90 days of that date. The

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

Questions Presented

1. May the Environmental Protection Agency (EPA)

validly issue environmental regulations without adequate

consideration of their effect on long-term national produc-

tivity despite the requirement for such consideration stated

in the National Environmental Policy Act (42 U.S.C.

§ 4332) ?

2. May EPA, in issuing environmental regulations, ac-

cord less weight to non-environmental factors than other

Federal agencies must give to environmetal effects?

3. May a reviewing court refuse to set aside final admin-

istrative action when the agency record is inadequate to

sustain the regulation?

4. May a regulation establishing different standards for

different sources of similar pollutants be upheld in the

absence of a rational explanation for the difference in

treatment?

5. Are Constitutional due process rights violated by im-

posing a more stringent procedural burden on a petitioner

seeking judicial review of an environmental] regulation than

on a petitioner seeking consideration of the environmental

effects of other administrative action?

—

Statutes and Regulations

The statutes and federal regulations involved in this

case are:

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

Clean Air Act, 42 U.S.C. § 1857(b), e-6, h-5(b) (1).

National Environmental Policy Act. 42 U.S.C. §§ 4331,

4332.

Standards of Performance for New Stationary Sources.

40 C.F.R. Part 60, 36 Fed. Reg. 24876.

The pertinent parts of these statutes and regulations are

set forth in the Appendix hereto.

Statement of the Case

This case places in issue the extent to which EPA must

consider and explain the effect of its regulations on the

environment, the nation’s productivity and the constitu-

tional rights of those subject to regulation; and the action

which a reviewing court must take if such consideration and

explanation are inadequate. Both the National Environ-

mental Policy Act! (NEPA) and the Clean Air Act? require

the effect on the nation’s productivity to be considered in

connection with major Federal actions affecting the environ-

ment. And the Administrative Procedure Act requires that

administrative action be set aside if the issuing agency does

1 NEPA provides: all agencies of the Federal Government

shall. . . include in every recommendation or report on proposals

for . .. major Federal action[s] affecting the quality of the human

environment, a detailed statement on... the relationship

between local short-term uses of man’s environment and the main-

tenance and enhancement of long-term productivity. . . (42

U.S.C. § 4332, A. 62).

2 The stated purpose of the Clean Air Act is: . to protect and

enhance the quality of the Nation’s air resources so as to promote

the public health and welfare and the productive capacity of its

population;” (42 U.S.C. § 1857(b) (1), A. 57).

not furnish rational explanation sufficient to demonstrate

that issuance of its regulation is not arbitrary, unconstitu-

tional or in excess of the appropriate statutory directive.®

The decision below disregards these principles.

Standards of Performance for new* Portland Cement

Plants were promulgated by EPA on December 23, 1971.

These provide a maximum level of particulate matter which

may be expelled in exhaust gases. Operation at a level ex-

ceeding the Standard violates the Clean Air Act and can

subject the operator to penalties, including fines and im-

prisonment.

Initially, Standards were promulgated for five stationary

source categories.“ Promulgation was preceded by informal

rule-making proceedings in which the Agency published

proposed standards based on data summarized in a back-

ground document; comments of concerned parties were re-

ceived; and final standards were promulgated. The en-

vironmental improvement expected to be achieved by the

Standards was not evaluated or stated by the Agency dur-

ing or after these proceedings. With respect to productive

capacity, the Agency estimated three new cement plants

would be built and three existing plants modified each year

and ignored a statement in its source document that ca-

pacity lost through plant and equipment shutdowns was not

35 U.S.C. § 706 (2) (A) (B) (C), A. 56; Citizens to Preserve Over-

ton Park v. Volpe, 401 U.S. 402 (1971); Berger, Administrative

Arbitrariness: A Synthesis, 78 Yale L.J. 965, 972 (1969) ; Camp v.

Pitts, 411 U.S. 138 (1973).

4 Construction or modification of which commenced or commences

after August 17, 1971. (A. 3)

5 More than 20 additional stationary source categories have been

identified and standards have been proposed for 7 of them, but, as

of the date of this petition, only the original group of standards

has been finally promulgated. 38 Fed. Reg. 15406 (6-11-73); 4

B.N.A. Env. Rptr.—Current Developments, 179-180 (1973); The

Cost of Clean Air, p. 1-3 (U.S. G.P.O. 1973)

* * ened SRA

taken into account and a U.S. Bureau of Mines Report that

10 plants were closed and that 20 additional kilns were

permanently retired in 1970.

Three of the initial stationary source categories (cement

plants, power plants and large municipal incinerators) are

limited in their emissions of particulates. With respect to

these emissions, power plants discharged nearly 10 times

more particulates than cement plants, and municipal waste

disposal accounted for 7 times as much particulate matter

as cement plants prior to the Clean Air Act of 1970.“

Particulate emissions from all three sources are con-

trolled by the same technology and types of equipment—

electrostatic precipitators or fabric filters in a “baghouse”.

This equipment is commercially available from a number of

suppliers. Theoretically 100% of the solids could be re-

moved by these devices if sufficient capacity were provided.

However, the cost of removal rises exponentially and, as

complete removal is approached, it costs increasingly more

to remove increasingly less particulate. Recognizing this

principle, the Council on Environmental Quality stated in

its 1971 Annual Report that environmental control should

be advanced to the extent that “the expected gains are large

relative to the costs.

Against this background, EPA is directed by the Clean

Air Act to promulgate standards—

“* * * which reflect[s] the degree of emission limitation

achievable through the application of the best system

of emission reduction which (taking into account the

cost of achieving such reduction) the Administrator

determines has been adequately demonstrated.“

The Cost of Clean Air, Table 1-3; p. 5-3.

Environmental Quality, p. 118, (U.S. G. P. O. 1971).

542 U.S.C. § 1857e-6 (a) (1), A. 57.

Accordingly, EPA, conducted tests to measure perform-

ance at representative facilities. The promulgated stand-

ards, based principally on the test results, were as follows:“

08 Gr / SC Fi for incinerators. Four incinerators con-

trolled by precipitators showed test results all of

which were lower than the standards.

06 Gr/SCF for power plants. Two (of seven) tests

of power plants controlled by precipitators had

produced results below the standard.

03 Gr/SCF for cement plants. No test found valid by

the court below showed the standard had been

achieved.

Thus, sources of 10 times as much pollution (power

plants) are permitted to emit twice as much particulate

per cubic foot of exhaust gas as cement plants are allowed

and the less offending source is subjected to greater restric-

tion" at greater relative cost. In short, a greater cost is

imposed to secure a smaller environmental benefit.

No explanation for this difference was made when the

Standards were promulgated. Subsequently the Agency

stated that the difference was attributable to superior fabric

filter technology available to cement plants. This comment

was made meaningless by the agency’s additional statement

that cement plants can meet the Standard by utilizing pre-

cipitators!*—the same equipment used to control the other

sources.

Following promulgation, Petitioner sought to have the

standards reviewed and set aside by the court below.”

37 Fed. Reg. 5767 (1972).

10 Grains per standard cubic foot.

11 The Standards result in approximately 98% control for power

plants and 99.9% control for cement plants.

12 37 Fed. Reg. 5767 (1972); A. 25, 26.

18 The petition was filed in accordance with Section 307 of the

Clean Air Act (42 U.S.C. § 1857h-5; A. 2) and Sections 702 and

706 of the Administrative Procedure Act (5 U.S.C. §§ 702, 706;

A. 56).

The Petition alleged:

Achievability of the Standards had not been “ade-

quately demonstrated” as required by the Clean Air

Act because the results of one of the tests on which

the Standards were based were erroneous and neither

of such tests was conducted continuously for the period

required in the Standard.

The Administrator had not taken cost into account as

required by the Clean Air Act.

The Administrator had not observed “procedure re-

quired by law” because he failed to comply with the

National Environmental Policy Act which requires

evaluation of environmental benefit and effect on pro-

ductivity.

The relative opacity requirement of the Standard is not

a valid measurement of pollution and is inappropriate

to determine compliance with the law.

The Cement Standards violate the Fifth Amendment

to the Constitution because they discriminate against

cement plant operators.

The Court below:

Remanded the record because it was not adequate for

judicial review principally with respect to the tests on

which the Standards were based (A. 35) ;

Did not set the Standards aside (A. 53);

Did not require EPA to evaluate the expected environ-

mental benefit the Standards were expected to achieve

(A. 22-23) ;

Commented that “The Administrator has obviously

given some consideration to economic costs” since the

administrative record contained a study which esti-

mated the costs of required control equipment and con-

cluded these could be passed on without much effect on

competition because demand for cement is “not highly

elastic with regard to price” (A. 23); but did not re-

quire EPA, on remand, to comment on the effect of the

Standards on the construction of cement manufacturing

capacity ;

Commented that the argument that EPA must comply

with NEPA because EPA is a federal agency and

NEPA expressly applies to “all” federal agencies is

“more simplistic than simple” (A. 6); that legislative |

history indicating whether or not Congress intended

NEPA to apply to environmental agencies is ambiguous

(A. 8-12); that Section 111 of The Clean Air Act re-

quires the “functional equivalent” of NEPA com-

pliance (A. 16); and decided that, “We establish a

narrow exemption from NEPA, for EPA determina-

tions under Section 111 of the Clean Air Act.” (A. 21);

Directed EPA, on remand, to give further consideration

to and an explanation of the relative opacity standard

(A. 52); and

Decided that EPA “is not required to present affirma-

tive justifications for different standards, in different

industries” and such comparisons “were not contem-

plated by Congress in this Act.” (A. 26)

In its petition for rehearing, Petitioner asserted that:

The Standards should have been set aside since the

administrative record was inadequate to support them;

The court erred in creating an EPA exemption from

NEPA;

Excusing the agency from giving a rational explana-

tion for imposing different standards on sources using

the same control equipment was erroneous;

The decision below, in violation of due process rights,

places a heavier procedural burden on a party seeking

review of an environmental regulation than on one |

seeking to invoke environmental considerations in con-

nection with other agency action.

The rehearing petition has been denied. The remand

order principally concerns the achievability of the stand-

* Nen ä

ards and the relative opacity standard—subjects not

placed in issue by this petition. The court below has ap-

parently ruled with finality on the issues with which this

petition is concerned.

Reasons for Granting the Writ

No federal question is more important today than the

extent to which the courts may permit an agency to ignore

social ills which other agencies are attempting to alleviate

by issuing regulations which countermand those of the other

agencies. In this case the decision below permits the EPA

to perform its regulation with virtually no consideration

of factors other than the achievement of its own assigned

goals, excuses it from presenting a record on which the

constitutionality of its regulations can be reviewed, and

creates disparate procedural burdens for proponents of

other social goals as compared with litigants seeking to

invoke environmental considerations.

To reach this result, the court, by judicial legislation,

created an exception from the inescapably express terms

of the nation’s principal environmental policy statute, ig-

nored a basic purpose of the statute under which the agency

was acting and refused to follow the policy, established by

this Court, that inadequately supported agency action must

be set aside.

The urgency of review by this Court is accentuated by

the fact that the court below reviews more administrative

actions than any other federal appeals court and thus its

application of the Administrative Procedure Act, as inter-

preted by this Court, is especially important. Furthermore,

the Clean Air Act designates the court below as the only

court in which direct review of EPA regulations under that

Act may be sought. The court below has already directed

EPA to apply principles stated in the decision in this case

to its regulation of other industries!“ and it will undoubt-

edly apply the same approach to other stationary source

standards which may be promulgated soon.“

1. THE FAILURE OF THE COURT BELOW TO DREOT

EPA TO CONSIDER, WEIGH AND EXPLAIN THE

EXPECTED ENVIRONMENTAL BENEFIT AND

THE EFFECT ON PRODUCTIVITY CONCERNS VI.

TAL QUESTIONS OF FEDERAL LAW WHICH

HAVE NOT BEEN, BUT SHOULD BE, SETTLED BY

THIS COURT.

The basic statute (NEPA) in which the nation’s environ-

mental policy is established requires that:

... all agencies of the Federal Government shall—...

include in every recommendation or report on pro-

posals for . . major Federal action[s] affecting the

quality of the human environment, a detailed statement

. on... the relationship between local short-term

uses of man’s environment and the maintenance and

enhancement of long-term productivity. ... (42 U.S.C.

§ 4332; A. 62).%¢

Reiterating this policy, Congress stated in the Clean Air

Act that one of its principal purposes is the promotion of

“the productive capacity of [the nation’s] population.”!”

These statutory provisions were totally disregarded by

the court below. Its decision makes no reference to either

provision“ or to any agency or court consideration of the

14 See Essex Chemical Corp. v. Admin., No. 72-1072 and Appa-

lachian Power Co. et al. v. E.P.A., No. 72-1079 (D.C. Cir. 9-10-73).

15 See note 5 supra.

16 42 U.S.C. § 4332 (e) (iv), A. 62.

17 42 U.S.C. § 1857 (b) (1), A. 57.

18 Although the court held that Section 111 of the Clean Air Act

requires the functional equivalent of NEPA compliance, it does not

mention the NEPA requirement that productivity be considered.

3 —

impact of the Standards on productivity. The word “pro-

ductivity” does not appear, even once, in the 53 pages of,

or the 103 footnotes to the opinion.

This judicial treatment encourages agency action which

can be harmful to the total public interest. A congressional

committee recently stated:

The hearing record this year shows strong evidence

that actions by the Environmental Protection Agency

in carrying out these laws have contributed to the

energy crisis, have increased the damage from floods

because of the delay of flood and soil conservation

projects, have increased the cost of production of food

thereby contributing to higher consumer prices, and

have greatly increased the danger to human health

by banning DDT, which according to testimony has

never injured a human being. In addition, actions by

the Agency have placed American industry and Amer-

ican agriculture at a competitive disadvantage both at

home and abroad.

„ „ 6

The energy crisis has major implications with regard

to our country’s national security, foreign policy and

balance of trade. These implications were not consid-

ered by the Agency in setting the standards and ap-

proving the plans that led to the problem. The potential

impact on the economic and social well-being of this

Nation of actions by the Agency is so great that it

is absolutely essential that the Agency be required to

consider the impact of their actions. 10

The failure of EPA to consider the full impact of its

actions is the result of its rejection or overly narrow inter-

pretation of the express provisions of statutes (NEPA and

the Clean Air Act) under which Congress directed it to

act. Where, as here, such agency conduct is condoned and

1° H. R. Rep. No. 93-275, 93d Cong. Ist Sess., p. 54 (1973).

encouraged by the courts, a major federal problem arises

which should be settled by this Court.

In a recent major federal action, the Cost of Living

Council exempted the cement industry from price control

in order to improve its financial condition, attract capital,

increase its productive capacity, and prevent or minimize

the adverse economic effects of a cement shortage. Con-

sidering the Nation’s capacity to produce cement, the

Council said:

Cement is a basic material, fundamental to construc-

tion activities and is an essential element to assuring

the continued expansion of the U.S. economy. The

Council is taking this action to maintain current sup-

plies of cement and encourage the cement industry to

invest in both additional new capacity and replacement

of older, energy inefficient plants..

The expected economic benefit of this action can be mini-

mized or cancelled by diverting expenditures for increasing

production to the purchase and operation of facilities re-

quired to comply with excessively strict environmental regu-

lations. EPA should consider this effect in setting the levels

of its controls. But the decision below excuses the Agency

from considering these matters. (A. 23)

Obviously, some environmental benefit must be secured

and some depressive influence on productivity must be in-

curred. Maximizing the benefit and minimizing the socio-

economic cost must be accomplished in the agency proceed-

ings. The only rational process by which this can be done

is to balance the expected environmental gains against the

anticipated productivity losses.

20 38 Fed. Reg. 32914 (1973).

21 On this subject the House Committee said:

“Testimony before the Committee this year indicated that

in order to meet the pollution problems and the standards

9 * n vor N ba Nn

— 2 3 *

The balaneing process cannot be performed unless a

weight or valuation is assigned to the factors on both sides

of the balancing scale. This balancing process, however, is

aborted at the outset by the decision below which would

permit EPA to issue its regulation without assigning a

value to the expected environmental gain. (A. 22, 23) In

reaching this conclusion the court again rejected the explicit

terms of the Clean Air Act, section 309(a) of which requires

EPA to comment in writing on the environmental impact of

the regulations of “any * * * agency of the Federal Govern-

ment.” (A. 14, 60)

The court’s comment that such an evaluation is difficult

if not impossible (A. 22) is a true enigma. 22 In another case,

the court itself suggested the possibility that reexele sul-

phurie acid plants might be permitted to operate without

control since they account for only .4% of national sulphur

dioxide emissions. Essex Chemical Co. et al. v. Administra-

tor, No. 72-1072 (D.C. Cir. 3-10-73), slip op. at 22.

The decision below permits EPA to avoid an evaluation

of both environmental benefit and socio-economic cost of its

regulation. Without such evaluation the balancing process

cannot be performed and the agency’s action cannot be other

than arbitrary. This presents an additional vital question of

federal law which should be decided by this Court.

associated with air pollution, water pollution and solid waste

disposal over the next decade the country will have to spend

about $287 billion. By setting standards that are perhaps too

high, we have forced massive expenditures that may result in

only modest improvements... . H.R. Rep. No. 93-275, supra,

at 53.

22 Paradoxically, EPA is charged with the operation of the na-

tional pollution monitoring network (Reorg. Plan No. 3 of 1970,

42 U.S.C. §4321 note 1970) and has actually assessed national

atmospheric quality in its 1973 report to Congress. The Cost of

Clean Air, Table 1-3, note 6, supra.

2. THE FAILURE OF THE COURT BELOW TO SET

THE STANDARDS ASIDE IS IN DIRECT CONFLICT

WITH A RECENT DECISION OF THIS COURT AND

MANY DECISIONS OF OTHER APPEALS COURTS

AS TO THE PROPER INTERPRETATION OF SEC-

TION 706 OF THE ADMINISTRATIVE PROCEDURE

ACT. (5 U.8.C. § 706)

Under Section 702 of the Administrative Procedure Act

a person aggrieved by agency action is entitled to judicial

review of that action. If, as here, the relevant statute does

not require a hearing before the agency, the appropriate

standard for review is whether the agency’s action was

“arbitrary, capricious, an abuse of discretion or other-

wise not in accordance with law” as specified in Section

706(2)(A), APA. (5 U.S.C. 58 702, 706(2)(A); A. 56) These

principles were confirmed by this Court in Overton Park and

further developed in Camp v. Pitts, where the Court

stated :

4. . . In applying that standard, the focal point for

judicial review should be the administrative record al-

ready in existence.

and

„. . . in the present case there was contemporaneous

explanation of the agency decision. The explanation

may have been curt, but it surely indicated the deter-

minative reason for the final action taken. . . . The

validity of the Comptroller’s action must, therefore,

stand or fall on the propriety of that finding, judged,

or course, by the appropriate standard of review. If

that finding is not sustainable on the administrative

record made, then the Comptroller’s decision must be

vacated and the matter remanded to him for further

consideration.” 411 U.S. at 143 (emphasis supplied).

In so ruling, this Court reaffirmed the principle which has

been followed by the federal courts in virtually every cir-

23 Note 3, supra.

cuit, as set forth in such decisions as Scenic Hudson Pres-

ervation Conf. v. F.P.C., 354 F.2d 608, 612 (2d Cir. 1965),

Chrysler Corp. v. D. O. T., 472 F. 2d 659 (6th Cir. 1972), and

H & H Tire Co. v. D. O. T., 471 F.2d 350 (7th Cir. 1972).

This Court's Camp decision was published after oral

argument in the court below. However, that decision and the

above cited appeals courts decisions and others were set

forth in the Petition for Rehearing which the court below

denied.

In this case the administrative record was not adequate

to support the agency action. This inadequacy required the

remand. The failure of the decision below to set aside the

inadequately supported Standards therefore directly con-

flicted with the Camp decision of this Court and decisions

of courts of appeal in other circuits.

The wisdom of the Camp decision is graphically demon-

strated in this case. Here an invalid standard has been in

effect, with the force of law, for two years—and it will

have remained in effect for perhaps three years by the time

this case is decided. During that time the Standard has de-

terred construction and modification of productive capacity,

the effect of which will be felt for the next several years

when plants which might have been built or modified during

this period would have been expected to commence opera-

tion.

In several environmental cases the court below has found

the agency record inadequate but has failed to vacate the

agency action. In two opinions the court’s comments indi-

cate it regards itself as a participant involved in a con-

tinuing administrative process rather than as a judicial

body which should review a completed process and either

affirm valid action or set aside arbitrary action.

In Kennecott Copper Co. v. E.P.A., 462 F.2d 846 (D.C.

Cir. 1972) the court referred to itself as being in “partner-

ship” with the agency, and remanded but did not set aside

inadequately supported agency action. On remand the

agency promptly changed the premises which it had origi-

nally alleged were correct, but did not change its regula-

tion.** In the instant case, the court again refers to itself

as being “in a kind of partnership relationship” with the

agency. (A. 35) It obviously will not, on remand, cure the

defects in its record because the court below has excused

it from doing so.

It has required many decisions to establish the adminis-

trative law principle that a reviewing court should not retry

the issues in the agency proceeding but should remove itself

from the administrative process and affirm or vacate the

action based on the administrative record. Agency actions

concerning the environment should not be governed by dif-

ferent rules. To assure this result, the conflict between the

decision below, this Court’s Camp decisions, and the deci-

sions of other courts of appeal should be resolved promptly.

3. IN RULING THAT E.P.A. NEED NOT EXPLAIN

DIFFERENCES IN LEVELS OF POLLUTION CON.

TROL REQUIRED OF DIFFERENT INDUSTRIAL

SOURCES, THE COURT BELOW DECIDED AN NA

PORTANT QUESTION OF FEDERAL LAW IN CON.

FLICT WITH APPLICABLE DECISIONS OF THIS

— AND THE UNITED STATES CONSTITU-

This Court has established the principle that classification

in federal statutes which is not rationally related to the

statutory purpose violates the due process clause of the

Fifth Amendment. Richardson v. Belcher, 404 U.S. 78, 81,

84 (1971) This principle is based on many earlier decisions

24 37 Fed. Reg. 5767 (1972).

of this court, including Royster Guano Co. v. Virginia, 253

U.S. 412, 417 (1920), where Justice Brandeis (dissenting,

with Justice Holmes concurring) pointed out that the simi-

lar protection of the Fourteenth Amendment “forbids

merely inequality which is the result of clearly arbitrary

action.” Arbitrariness does not exist if there is a rational

basis for the difference.

In order to give effect to this principle administrative

agencies must state a rational basis for differences between

classifications in their regulations. If they do not do so a

reviewing court will have inadequate information to judge

whether or not the agency action was arbitrary. The court

below denies itself this information. Its decision states :

The core of our response to petitioners is that the

Administrator is not required to present affirmative

justifications for different standards in different in-

dustries. Inter-industry comparisons of this kind are

not generally required, or even productive; and they

were not contemplated by Congress in this Act. The

essential question is whether the mandated standards

can be met by a particular industry for which they are

set, and this can typically be decided onthe basis of

information concerning that industry alone. (A. 26)

Reduction of pollution is the principal purpose of the

Clean Air Act. Therefore classification of standards should

be rationally related to the reduction of pollution. It is not

rational to restrict one source of a pollutant more than

another source just because it is a different industry—that

reason is not rationally related to the statutory purpose.

Nor is it rational to restrict a source of less pollution more

stringently than a source of more of the same pollutants,

especially where the relative cost of control is greater and

both sources use the same control technology and equipment.

See also Developments in the Law Equal Protection, 82 Harv.

L. Rev. 1065 (1969).

This subject was raised by comments on the proposed

standards and discussed extensively in Petitioner’s brief,

a copy of which was in agency hands long before the re-

mand proceedings were completed. Thus, the decision below

constitutes a final ruling on this issue.

This issue has major current national importance.“

Almost daily?” the media report requests for relief from

environmental restrictions by various industries which

operate stationary sources. These are made in the interest

of curbing inflation or conserving energy. Adjustment of

E. P. A. stationary source standards could afford such relief.

If such action should be considered, any resulting differ-

ences between industries should be based on reason and not

arbitrariness. The opinion below, however, would effectively

exempt E.P.A. actions on this subject from judicial review.

Such a result requires consideration by this Court.

4. THE WIDE DISPARITY IN TREATMENT BE.

TWEEN ENVIRONMENTAL AND OTHER CONSID-

ERATIONS AND THEIR PROPONENTS ESTAB-

LISHED BY THE COURT BELOW DEPARTS 80

PAR FROM THE ACCEPTED AND USUAL COURSE

OF JUDICIAL PROCEEDINGS THAT THIS COURT’S

POWER OF SUPERVISION IS REQUIRED.

A petitioner seeking to have EPA explain and justify its

standards in terms of the environmental benefit—socio-

economic cost criterion is, under decisions of the court

below, subjected to procedural and other burdens substan-

tially different from those imposed on a petitioner seeking

to require another agency to give weight to environmental

26 This has been identified as a “moral” as well as a legal issue.

Scientific American, Vol. 228, No. 6, p. 18 (June 1973).

27 For example see Wall Street Journal, Dec. 7, 1973, p. 24 (Mid-

west Ed.).

considerations. The decision below, when compared to

other decisions by that and other courts illustrates this

disparity.

1. A federal agency proposing action to benefit condi-

tions other than the environment is subject to NEPA;

the burden of preparing the appropriate impact statement

containing the cost-benefit analysis is imposed on the

agency“ on which the further initiative is imposed to give

environmental factors at least as much consideration as

other factors; and the agency may not limit its considera-

tion to issues raised by other parties but must seek the

input of other agencies.

In stark contrast—EPA in promulgating environmental

standards is exempted from NEPA and need not prepare

an impact statement (A. 21); it is not required to evaluate

expected environmental benefit, which is not “a necessary

28 Calvert Cliff’s Coord. Comm. v. A.E.C., 146 U.S. App. D.C. 33,

449 F.2d 1109 (1971); Nat'l Resources Def. Council Inc. v. Morton,

458 F. 2d 827 (1972).

Note especially the Court’s comments in Calvert Cliffs’ that,

“It is, moreover, unrealistic to assume that there will always be an

intervenor with the information, energy and money required to

challenge a staff recommendation. (449 F.2d at p. 1118).

% Calvert Cliffs’, supra; Green Cty. Planning Bd. v. F.P.C., 445

F. 2d 412 (2d Cir. 1972), cert. denied, 409 U.S. 849 (1972).

In Calvert Cliffs’ the Court said:

“Of course, all of these Section 102 duties are qualified by

the phrase “to the fullest extent possible.” We must stress as

forcefully as possible that this language does not provide an

escape hatch for footdragging agencies; it does not make

NEPA’s procedural requirements somehow “discretionary.”

Congress did not intend the Act to be such a per tiger.

Indeed, the requirement of environmental consideration “to

the fullest extent possible” sets a high standard for the agen-

cies, a standard which must be rigorously enforced by the

reviewing courts.” at p. 1114.

condition of action” (A. 23); and a superficial considera-

tion of economic cost (without mention of long-range pro-

ductivity effect) is adequate. (A. 23)**

2. An environmentalist attacking a non-environmental

regulation need not have participated in the agency pro-

ceedings in order to advance his cause in court. Citizens’

Comm. for Hudson Valley v. Volpe, 425 F.2d 97, 101-102

(2d Cir. 1970) As stated by this Court in Sierra Club v.

Morton, 405 U.S. 727 (1972):

4. . . once review is properly invoked, that person may

argue the public interest in support of his claim that

the agency has failed to comply with its statutory man-

date.” a p. 737.

In this case, however, the court ruled that unless the peti-

tioner challenging an environmental standard participates in

the agency proceedings and raises an issue there, the issue

will not be considered upon judicial review.“ (A. 36, 37)

3. A petitioner concerned with pollution may seek reduc-

tion of a standard thought to be too generous. The court

below stated:

Of course, the standard for another industry can be

attacked, as too generous, and hence arbitrary or un-

supported on the record, by those concerned with ex-

cessive pollution by that industry. There is, therefore,

an avenue of judicial review and correction if the

agency does not proceed in good faith to implement its

general approach. (A. 27)

31 The Court said, “The Administrator has obviously given some

consideration to economic costs.” Compare this statement with that

quoted in the preceding footnote!

32 The Court said, “Ordinarily we would not consider comments

not presented to EPA.” (A. 37).

———— u—ͤ—ͤ——

;

In contrast—a petitioner concerned with a standard

thought to be too strict in relation to a comparable source

may, as here, submit comments in the administrative

process, argue the point in its brief, but will be unable to

secure consideration of this contention because the agency

is excused by the decision below from making a response

necessary to support judicial review. (A. 26)

4. Final actions of non-environmental agencies will be set

aside if not supported by an adequate administrative record.

Camp v. Pitts, supra. (See also discussion on p. 14, supra,

and decision of the Court below in National Resources Def.

Council, supra.) In Calvert Cliffs’®* the court below said,

“But if the decision was reached procedurally without in-

dividualized consideration and balancing of environmental

factors—conducted fully and in good faith—it is the respon-

sibility of the courts to reverse.” (emphasis supplied)

Environmental regulations, however, are not set aside

even though the administrative record is found to be in-

adequate. Kennecott Copper Co. v. E.P.A., 462 F.2d 846

(D.C. Cir. 1972) ; International Harvester Co. et al. v. Ad-

ministrator, 478 F.2d 615 (D.C. Cir. 1973); Essex Chemical

Co. et al. and Appalachian Power Co. et al. v. E.P.A., Cases

No. 72-1072, 1079 (D.C. Cir. 1973).

The disparities noted above indicate serious procedural

due process violations. Unless changed by this Court as

soon as possible they will continue to confuse an increasing

volume of judicial review litigation and will create avoid-

able burdens on judicial dockets.

58 449 F. 2d at p. 1115.

CONCLUSION

For the reasons stated above, a Writ of Certiorari should

issue to review the opinion of the District of Columbia

Circuit.

Respectfully submitted,

Rosert E. HaytHorne

130 East Randolph Drive

Chicago, Illinois 60601

Epwarp W. WaRREN

1776 K. Street N. W.

Washington, D.C. 20006

Of Counsel:

KmkLaxD & Ex.is

130 East Randolph Drive

Chicago, IIlinois 60601

December 27, 1973

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U D.C. Users are requested to notify the

Clerk of any formal errors in order corrections may be made before the

bound volumes go to press.

Anited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 72-1073

PortLanp CEMENT ASSOCIATION, AN

ILLINOoISs Not-For-Prorir CorPoraTION, PETITIONER

Wim D. RucketsHaus, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Mepusa Porttanp CEMENT Co.

NORTHWESTERN States PortLanp Cement Co.,

INTERVENORS

Petition for Review of an Order of the Administrator,

Environmental Protection Agency

Decided June 29, 1973

Robert E. Haythorne, with whom Perry S. Patterson was

on the brief for petitioner.

James R. Walpole, Attorney, Department of Justice with

whom Kent Frizzell, Assistant Attorney General, Edmund

B. Clark and Martin Green, Attorneys, Department of Jus-

tice, were on the brief, for respondent. Raymond N.

Zagone, Attorney, Department of Justice also entered an

appearance for respondent.

Robert H. Shepard was on the brief for intervenor,

Northwestern States Portland Cement Company.

William HF. Wallace was on the brief for intervenor,

Medusa Corporation.

Turner T. Smith, Jr., filed a brief on behalf of Long

Island Lighting Company and National Asphalt Pavement

Association, as amici curiae urging reversah

Perry S. Patterson entered an appearance for interven-

ors.

Before Fany, Senior Circuit Judge, LeventHAL and

Ross, Circuit Judges.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge: Portland Cement Associa-

tion seeks review’ of the action of the Administrator of

the Environmental Protection Agency (EPA) in pro—

mulgating stationary source standards for new or modified

portland cement plants, pursuant to the provisions of Sec-

tion 111 of the Clean Air Act.“ Medusa Corporation and

Northwestern States Portland Cement Company were

granted leave to intervene by this court and they together

with petitioner, will be referred to as the cement manu-

facturers. Long Island Lighting Company has filed a brief

as an Amicus Curiae.

1 Section 307 (b) (1) of the Clean Air Act, 42 U.S.C. § 1857h-

5(b) (1), requires that a petition for review of the action

of the Administrator in setting standards of performance

under section 111 of the Act “be filed only in the United

States Court of Appeals for the District of Columbia.”

242 U.S.C. § 1857c-6.

—

I. Statement or THE Case

Section 111 of the Clean Air Act directs the Administra-

tor to promulgate “standards of performance” governing

emissions of air pollutants by new stationary sources

constructed or modified after the effective date of pertinent

regulations.“ The focus of dispute in this case concerns

EPA compliance with the statutory language of Section

III (a) which defines “standard of performance” as fol-

lows:“

(1) The term “standard of performance” means a

standard for emissions of air pollutants which reflects

the degree of emission limitation achievable through

the application of the best system of emission reduc-

tion which (taking into account the cost of achieving

such reduction) the Administrator determines has

been adequately demonstrated.

After designating portland cement plants as a stationary

source of air pollution which may “contribute significantly

to air pollution which causes or contributes to the endan-

germent of public health and welfare”, under Section 111

(b)(1)(A) of the Act, the Administrator published a pro-

*The term “new source” is defined as:

any stationary source, the construction or modification

of which is commenced after the publication of reg-

ulations (or, if earlier, proposed regulations) prescribing

a standard of performance under this section which will

be applicable to such source. 42 U.S.C. § 1857c-6(a) (2).

Modification is, in turn, defined as:

any physical change in, or change in the method of

operation of, a stationary source which increases the

amount of any air pollutant emitted by such source, or

which results in the emission of any air pollutant not

previously emitted. 42 U.S.C. § 1857c-6 (a) (4).

* 42 U.S.C. § 1857c-6(a) (1).

42 U.S.C. § 1857c-6 (b) (1) (A). The designation of port-

land cement plant emissions was made on March 31, 1971, 36

Fed. Reg. 5931 (1971).

posed regulation establishing standards of performance

for portland cement plants. The proposed regulation was

accompanied by a document entitled “Background Informa-

tion For Proposed New-Source Performance Standards,”

which set forth the justification.* Interested parties were

afforded an opportunity to participate in the rule making

by submitting comments, and more than 200 interested

parties did so.“ The “standards of performance” were

adopted by a regulation, issued December 16, 1971, which

requires, inter alia, that particulate matter emitted from

portland cement plants shall not be:“

(1) In excess of 0.30 lb. per ton of feed to the kiln

(0.15 Kg. per metric ton), maximum 2-hour average.

(2) Greater than 10% opacity, except that where the

presence of uncombined water is the only reason for

failure to meet the requirements for this subpara-

graph, such failure shall not be a violation of this

section.

The standards were justified by the EPA as follows:“

The standards of performance are based on stationary

source testing conducted by the Environmental Pro-

tection Agency and/or contractors and on data de-

rived from various other sources, including the avail-

able technical literature. In the comments on the pro-

posed standards, many questions were raised as to

costs and demonstrated capability of control systems

The proposed standards were issued on August 3, 1971 and

published on August 17, 1971, 36 Fed. Reg. 15,704 (1971).

The Background Document, prepared by the Environmental

Protection Agency, Office of Air Programs, states: “The

proposed standards . . are being distributed concurrently

with this document.” (JA at 20).

734 comments, specifically addressed to the Portland Ce-

ment standards, are at Tab VIII of the Certified Record (C.R.).

They have been filed as a supplement to the Joint Appendix.

36 Fed. Reg. 24,876 (1971).

Id. at J 17.

to meet the standards. These comments have been

evaluated and investigated, and it is the Administra-

tor’s judgment that emission control systems capable

of meeting the standards have been adequately demon-

strated and that the standards promulgated herein

are achievable at reasonable costs.

On March 21, 1972, EPA published a “Supplemental

Statement in Connection With Final Promulgation”,’®

amplifying the justification for its standards and indicating

that it had been prompted by the action of this court in

Kennecott Copper Corp. v. E.P.A., 149 U.S.App.D.C. 231,

462 F.2d 846 (1972), to offer “a more specific explanation

of how [the Administrator] had arrived at the standard.”

This statement relied principally on EPA tests on exist-

ing portland cement plants to demonstrate that the promul-

gated standards were achievable.

The action of the Administrator has been challenged on

the following grounds: (1) The Administrator did not

comply with the National Environmental Policy Act of

1969 (NEPA). (2) Economie costs were not adequately

taken into account and the standards unfairly discriminate

against portland cement plants, in comparison with stand-

ards promulgated for power plants and incinerators. (3)

The achievability of the standards was not adequately dem-

onstrated.

II. Compitiance With NEPA

Petitioners argue that EPA acted contrary to the re-

quirements of the National Environmental Policy Act of

1969, 42 U.S.C. §§ 4321-35, in failing to file a “NEPA” state-

ment in conjunction with the promulgation of the stationary

standards. They draw particularly on the language of

§ 102(2)(C) of NEPA which states:

The Congress authorizes and directs that, to the

10 37 Fed. Reg. 5767 (1972).

42 U.S.C. § 4332 (2) (C) (1970).

fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be inter-

preted and administered in accordance with the poli-

cies set forth in this chapter, and (2) all agencies of

the Federal Government shall—

e e @ e

on proposals for legislation and other major

Federal actions significantly affecting the quality

of the human environment, a detailed statement

by the responsible official on—

(i) the environmental impact of the pro-

posed action

1. Petitioners, in effect, predicate an EPA obligation to

file an impact statement on this simple syllogism: (1) All

federal agencies must file an impact statement; (2) EPA

is a federal agency; (3) EPA must file an impact state-

ment. Anaconda Copper Co. v. Ruckelshaus, 4 ERC 1817,

1828 (D. Col. 1972). If the premises be accepted, the logic

is clear. But the argument is more simplistic than simple,

for the premises require a more precise determination of

legislative intent. In ascertaining congressional intent

we begin with the language of a statute,’* but this is subject

to an overriding requirement of looking to all sources

including purpose and legislative history, to ascertain dis-

cernible legislative purpose.“ The question is whether

EPA is a “federal agency” within the meaning of NEPA

—whether, and to what extent, Congress intended it to be

12 Caminetti v. United States, 242 U.S. 470, 485 (1917).

18“TT}he ‘plain meaning’ doctrine has always been sub-

servient to a truly discernible legislative purpose however

discerned,” by equitable construction or recourse to legislative

history. Wilderness Society v. Morton, Slip Opinion No. 72-

1796, at 22 (Feb. 9, 1973) (en banc), cert. denied —— US.

—— (1978) ; District of Columbia v. Orleans, 132 U.S. App.

D.C. 189, 141, 406 F.2d 957, 959 (1968).

}

;

{

subject to the NEPA mandate concerning preparation of

impact statements.

2. A primary purpose of NEPA, and specifically the

impact statement requirement, was the design to co-ordi-

nate disparate environmental policies of different federal

agencies.“ At the time NEPA was enacted, on January 1,

1970, EPA was not yet in existence. EPA was created by

Reorganization Plan No. 3, submitted to Congress on July

9, 1970, which was designed to bring under one roof the

major environmental federal programs which until that

time had been scattered throughout different agencies of

the government. It is by no means clear, as will appear,

that NEPA’s impact statement requirement was intended

at time of passage of NEPA to be applicable to such en-

vironmental agencies as the National Air Pollution Con-

trol Administration of the Department of Health, Educa-

tion and Welfare or the Federal Water Quality Adminis-

tration of the Department of the Interior. But even assum-

ing it was applicable to them, it does not necessarily follow

that NEPA is applicable to EPA, which Congress did not

have before it, and which in its own organization accom-

plished the purpose of coordination of environmental ap-

proach. In statutory interpretation, the courts must often,

in effect, consider what answer the legislature would have

made as to a problem that was neither discussed nor con-

templated. Montana Power Co. v. F.P.C., 144 U.S.App.

D.C. 263, 445 F.2d 739 (1970) (en banc), cert. denied, 400

U.S. 1013 (1971).

See Calvert Cliffs Coordinating Committee v. AEC, 146

U.S. App. D.C. 33, 47, 449 F.2d 1109, 1123 (1971); National

Resources Defense Council, Inc. v. Morton, 148 U.S. App.

D.C. 5, 13, 458 F.2d 827, 835 (1972).

18 83 Stat. 853.

4% The reorganization plan was effective December 2, 1970,

35 Fed. Reg. 15623 (1970). See 42 U.S.C. § 4321 note (1970).

3. The impact statement issue requires us to consider

not only NEPA, but also the Clean Air Act and particularly

the statutory scheme by which new stationary source stand-

ards are promulgated.”

Section 111 of the Clean Air Act establishes precise time

schedules for the promulgation of new source standards.“

The Administrator was required to publish, 90 days after

December 31, 1970, a list of categories of stationary sources

which “contribute significantly to air pollution which

causes or contributes to the endangerment of public

health or welfare.” Within 120 days of the inclusion of a

category, the Administrator is required to propose stand-

ards, and 90 days thereafter the standards are to go into

effect. Obviously, a strong argument can be made that the

Clean Air Act, and the provisions for unusual expedition

in disposing of the complex environmental and other prob-

lems faced by the agency, assumed that the agency would

not be subject to the additional time required to prepare

a “detailed” proposal of an impact statement, circulate the

statement to the agencies for comment and assess the com-

ments made.

The time constraint of the Clean Air Act is perhaps not

decisive '* but it is a substantial consideration and, as will

7 In order to give full effect to the Clean Air Act, it must

be read, at minimum, in pari materia with NEPA. See U.S.

v. Stewart, 311 U.S. 60 (1940). There is doctrine to the

effect that in case of conflict between two federal laws, the

later enactment is given precedence. U.S. v. Wrightwood

Dairy Co., 127 F.2d 907 (7th Cir. 1942).

18 42 U.S.C. § 1857c-6(b) (1).

10 The quality of a draft impact statement might be lessened

to conform to the requirements of speedy action. NEPA

requires compliance only to the fullest extent possible“, 42

U.S.C. § 4332, and is subject to a construction of reasonable-

ness. National Resources Defense Council v. Morton, 148

be seen, an inter-related aspect of that Act reinforces the

conclusion that NEPA is inapplicable to determinations

under it.

Long Island Lighting Company argues that the Act

could accommodate delay in the time allowed for publica-

tion of the list of categories of stationary sources until an

impact statement had been duly prepared, in compliance

with NEPA, and completed. This is at odds with the ex-

press language of the Act which specifies that any source

which contributes to the endangerment of public health or

welfare shall be placed on that list at the end of 90 days.

4. As we have already indicated, there is a serious ques-

tion whether NEPA is applicable to environmentally pro-

tective regulatory agencies. There is no express exemption

in the language of the Act or Committee Reports.” How-

ever, such an exemption is set forth in a document entitled

“Major Changes in S. 1075 as passed by the Senate” intro-

duced into the Congressional Record by Senator Jackson

U.S. App. D. C. 5, 15, 458 F.2d 827, 837 (1972). The need for

timely action is not exclusive with the Environmental Pro-

tection Agency. See SCRAP v. United States, 346 F. Supp.

189, 199 (D.D.C. 1972) (3-judge court), probable jurisdic-

tion noted 409 U.S. 1073 (1973).

A major difficulty with this approach is that it tends to

result in a group of second-class impact statements, ascribed

to time urgencies. In contrast, the Council on Environmental

Quality has established a relatively short comment time in

the interest of a uniform procedure that can accommodate

even agencies on a tight time table—to avoid “a delay incom-

patible with the nature of some government programs.”

THIRD ANNUAL REPORT 237 (1972).

The crunch under the Clean Air Act is that there is no

legal latitude available to delay the action, in order to give

more than lip service to the comment procedure.

8. REP. No. 296, 91st Cong., Ist Sess. (1969); H. REP.

No. 765, 91st Cong., Ist Sess. (1969).

during debate over approval of the Conference Report.“

The document, in analyzing Section 102 of NEPA, de-

tailing the procedures and requirements of an impact state-

ment, stated that the provisions were “not designed to re-

sult in any change in the manner in which [environmental

agencies] carry out their environmental protection author-

ity”. It stated immediately thereafter:

This provision is, however, clearly designed to assure

consideration of environmental matters by all agencies

in their planning and decision making—especially those

agencies who now have little or no legislative authority

to take environmental considerations into account.”

Senator Muskie commented on this language as coming

from his discussions with Senator Jackson, and then stated,

in debate:

It is clear then, and this is the clear understanding of

the Senator from Washington [Jackson] and his col-

leagues, and of those of us who serve on the Public

Works Committee, that the agencies having authority

in the environmental improvement field will continue

to operate under their legislative mandates as pre-

viously established, and that those legislative mandates

are not changed in any way by section 102-5.”

Manifestly, the statements of these two Senators, who

were among the most active in securing the passage of

NEPA,” are entitled to weight in ascertaining legislative

intent.

21115 Conc. REC. 40417 (1969).

22 Id. at 40418.

Id. at 40423.

24 Senator Jackson, floor manager of the debate on the Con-

ference Report, was the sponsor of the original Senate bill on

NEPA, S. 1075, chaired the Senate Committee on Interior and

Insular Affairs, which considered the bill, and was a member

of the Conference Committee. Senator Muskie was the Chair-

man of the Subcommittee on Air Pollution of the Committee

on Public Works.

However, their understanding was not formalized by any

statement in the Conference Report or in the section-by-

section analysis of the bill as reported by the Conference

Committee.* Senator Allott, ranking minority member of

the Interior Committee and of the Conference Committee,

also a supporter of NEPA, stated:

:. While the explanatory statements relative to the

interpretation of the conference report language, as

ponaeer by the chairman, are useful, they have not

n reviewed, agreed upon, and signed by the other

Senate conferees. Only the conference report itself

was signed by all the Senate conferees, and therefore,

only it was agreed upon and is binding.

As for the House of Representatives, its action on the

Conference Report was equally ambiguous. Representa-

tive Dingell submitted the Conference Report to the House

on December 22, 1969, two days after the report had been

submitted to the Senate by Senator Jackson. As part

of his opening remarks, Rep. Dingell introduced into the

record the text of answers to certain questions posed to

him by Rep. Fallon, the Chairman of the Committee on

Public Works. His answer to one of those questions tracked

the language of the “Major Changes” document submitted

to the Senate, indicating no intended change in require-

ments for “environmental control” agencies.“ There is no

indication, however, of any debate or acceptance of Rep.

Dingell’s answer by any other member of the House.

5. We now turn to consideration of the import of sub-

sequent congressional actions.

In the Federal Water Pollution Control Act Amendments

of 1972 (FWPCA), Congress provided that NEPA did not

* H.R. REP. No. 765, 91st Cong., Ist Sess. 7 (1969).

* 115 ConG. REc. 40422 (1969).

Id. at 40922 (1969).

Id. at 40925.

control certain actions taken by EPA pursuant to their

water pollution control activities.“ The question arose in

debate, and is carried on by the parties to this case, as to

whether this was an “exemption”—in which case the as-

sumption would be that prior law generally intended NEPA

to be applicable—or an affirmative declaration that NEPA

did apply to only a limited number of EPA activities speci-

fied in the amendments. Such debate of a later Congress

have been described by the Supreme Court as offering a

hazardous basis for inferring the intent of the earlier Con-

gress; and this is borne out by our analysis.

Senator Muskie pointed during the 1972 debates to the

Muskie-Jackson colloquy as expressing the intent to exempt

EPA, and that the present legislation merely imposed some

affirmative NEPA obligations, so as to narrow the exemp-

tion.** Others, such as Senator Nelson, clearly perceived

the water pollution control amendments as, in fact, exempt-

2° Pub. L. No. 92-500, 86 STAT. 816 (1972). Section 511 (e)

(1) provides that NEPA is not applicable to EPA, at least as

to impact statements, except in two cases: where grants are

made for the construction of publicly owned waste treatment

works and where the agency issues new source permits.

0 United States v. Southwestern Cable Co., 392 U.S. 157,

170 (1968).

31 118 ConG. REC. 16877-78 (daily ed., Oct. 4, 1972). Senator

Muskie also referred to an intervening interpretation of the

Council on Environmental Quality that EPA was exempt

from NEPA, 36 Fed. Reg. 7724 (1971) §5(d). This CEQ

interpretation as to EPA, reflected its earlier view that the

Federal Water Quality Administration and the National Air

Pollution Control Board were exempt from NEPA, 35 Fed.

Reg. 7391 (1970) §5(d). The CEQ view was based on its

reading of the legislative history of NEPA, which we find high-

ly ambiguous, and cannot therefore assign this administrative

determination controlling weight. At least part of the defer-

ence assigned to administrative construction of a statute,

concerns the passage of time under which the agency view

ing EPA from NEPA.” Senator Jackson had doubts by

1972, as to the wisdom of his prior position on a broad

exemption for “environmental control” agencies.

6. The matter resolves itself, as to this issue of exemp-

tion for environmental agencies, that we have items which

are entitled to some weight as indicia of legislative intent,

but cannot be taken as decisive.* It becomes appropriate,

has become an accepted interpretation and in which the

Congress has not acted to nullify the agency practice. Defer-

ence may also be accorded an administrative interpretation

to avoid dislocation where agencies have shaped their actions

in accordance with the interpretation, and the court con-

cludes that the interpretation is not inconsistent with dis-

cernible legislative intention. Here, however, the issue of

meaning turns on statutory wording and legislative history,

available in extenso to the court, and not affected by any

considerations of special technical expertise of CEQ, which

might lead to extra deference. See Wilderness Society v. Mor-

ton, supra, Slip Opinion at 40-51, for discussion of deference to

be given administrative construction of statutes. We note that

CEQ, in its latest Proposed Guidelines for Preparation of En-

vironmental Impact Statements, 38 Fed. Reg. 10856, 10865

(1973), has retracted § 5d and its broad claim that EPA was

exempt from all NEPA requirements. We do not reach the

question as to the scope of authority of the Council on Envi-

ronmental Quality to interpret the requirements of the Act.

Senator Buckley viewed section 511 (e) (1) as a provision

“which grants broad exemptions”, 118 Conc. REC. 816884

(daily ed., Oct. 4, 1972). Senator Nelson stated: “While this

section [511 (e) (1) ] does specifically authorize some exemp-

tions from the environmental policy act to avoid conflict with

other key environmental aims, the reach of these exemptions

would appear to be narrow.“ Id. at 16888.

Id. at 16886-88.

„Compare United States v. Thompson, 147 U.S. App. D.C.

1, 13, 452 F.2d 1333, 1345 (1971), cert. denied, 405 U.S.

998 (1972). Also see Calvert Cliffs, supra, 146 U.S. App.D.C.

at 49-50, 449 F.2d at 1125-26.

then,“ to consider the policies underlying the legisla-

tion.** Here, again, we encounter competing considerations

reflecting the difficulty in resolving the question; but per-

haps they point the way toward a resolution.

The policy thrust toward exemption of the environmen-

tal agency is discernible from these factors, taken in com-

bination: (1) An exemption from NEPA is supportable on

the basis that this best serves the objective of protecting

the environment which is the purpose of NEPA. (2) This

comes about hecause NEPA operates, in protection of the

environment, by a broadly applicable measure that only

provides a first step. The goal of protecting the environ-

ment requires more than NEPA provides, i.e. specific as-

signment of duties to protection agencies, in certain areas

identified by Congress as requiring extra protection. (3)

The need in those areas for unusually expeditious decision

would be thwarted by a NEPA impact statement require-

We think little guidance to the resolution of this issue

is to be obtained from consideration of section 309 of the

Clean Air Act, 42 U.S.C. § 1857h-7, which petitioners great-

ly relied on during oral argument of this case. That sec-

tion merely requires the Administrator to review and comment

in writing on the impact on the environment of projects of

another federal agency “which contains any matter related

to duties and responsibilities granted [to the Administrator]

pursuant to this chapter.“ The contention that this section im-

plies the Administrator must file a draft impact statement

can only be resolved in the framework of the legislative his-

tory which we have already reviewed.

36 See United States v. Sisson, 399 U.S. 267, 297-98 (1970),

where Justice Harlan stated: The axiom that courts should

endeavor to give statutory language that meaning that nur-

tures the policies underlying legislation is one that guides

us when circumstances not plainly covered by the terms of the

statute are subsumed by the underlying policies to which

Congress was committed.” Also see District of Columbia v.

Orleans, supra, 132 U.S. App. D. C. at 140-41, 406 F. ad at

958-59.

ment.“ (4) An impact statement requirement presents the

danger that opponents of environmental protection would

use the issue of compliance with any impact statement re-

quirement as a tactic of litigation and delay.“

The policies against a NEPA exemption embrace the

endemic question of “Who shall police the police”? As

Senator Jackson stated, “It cannot be assumed that EPA

will always be the good guy.” * Concern was also voiced by

petitioners in this case that EPA might wear blinders when

promulgating standards protecting one resource as to ef-

fects on other resources, as is asserted in this case, that air

standards may increase water pollution. Finally, it is ar-

gued that a NEPA statement’s procedures, though burden-

some, allow for needed input by other federal agencies

and simultaneously open up the decision-making process

to scrutiny by the public.“

37 Senator Muskie stated, during the debate on the applica-

bility of NEPA statements to EPA, pursuant to the FWPCA

amendments of 1972, 118 Conc. REC. 16878 (daily ed., Oct.

4, 1972): “If the general procedural or substantive reforms

achieved in NEPA .. . were permitted to override, supersede,

broaden, or affect in any way the more specific environmental

mandate of the FWPCA, the administration of the Act would

be seriously impeded and the intent of Congress in passing it

frustrated.” For problems in complying with both NEPA and

the Clean Air Act’s requirements for speedy action, see note

19 supra

38 Id.

39 Jd. at 16887. Senator Jackson raised this pointed concern:

“Since EPA was formed, they have done an admirable job and

they are continuing to do so, at least for the present. However,

it cannot be forgotten that EPA is a regulatory agency and

in the past in Washington almost all regulatory agencies have

eventually come under the control of those that they are

charged with regulating,” quoting from the September 22,

1972 National Wildlife Federation Conservation Report.

0% Id. (Statement of Senator Jackson). We do not think that

7. Our consideration of the complex questions raised by

a broad exemption claim, reinforce our conclusion that

these should not be decided in the present case, which may

appropriately be determined upon the logic of a narrow

exemption from NEPA applicable to determinations un-

der section 111 of the Clean Air Act. What is decisive, ul-

timately, is the reality that, section 111 of the Clean Air

Act, properly construed, requires the functional equivalent

of a NEPA impact statement. Thus in this case, as in In-

ternational Harvester v. Ruckelshaus, Slip Opinion No.

the post-decision reporting requirements of the Clean Air Act

to Congress, pursuant to sections 312(a) and 313 of the Act,

42 U.S. C. §1857j-1, 2 (1970), offer the same timely and

substantive impact on decision making as would comments on

possible adverse environmental impact during a rule-mak-

ing proceeding. Section 312(a) calls for “Comprehensive

economic cost studies”, and EPA has already issued its first

required report, which includes a discussion of portland

cement. S. Doc. No. 92-67, Annual Report of the Administra-

tor, The Economics of Clean Air, 92d Cong., 2d Sess. 4-36-43

(1972), which is based largely on a study made for the pur-

pose of arriving at the promulgated standard and introduced

into the rule-making record. ELIAS, J. R. AND J. M. DEMENT,

THE FINANCIAL IMPACT OF AIR POLLUTION CONTROL UPON

THE CEMENT INDUSTRY (1971) (prepared for EPA) (herein-

after FINANCIAL IMPACT). C. R. TabV(f).

Section 313 of the Act requires, inter alia, a report on “the

development of air quality criteria and recommended emis-

sion control requirements.” Two reports have already issued.

S. Doc. 92-66, Annual Report of the Administrator of the En-

vironmental Protection Agency, Progress in the Prevention

and Control of Air Pollution, 92 Cong., 2d Sess. (1972); S.

Doc. 92-11, 92 Cong., Ist Sess. (1971 Annual Report). Both

reports are summary in nature, and neither discusses portland

cement.

It is, therefore, apparent that Congress receives no required

information about the possible adverse environmental impact

of proposed standards for new stationary sources.

72-1517 (D.C. Cir., February 10, 1973), at 62 n. 130, we re-

frain from a determination of any broader claim of NEPA

exemption.

Enlarging on our conclusion as to a narrower exemption,

we note that section 111 of the Clean Air Act requires a

*' To date, only a few cases have dealt with the application

ment proceeding, thus not reaching the question, though no-

ting that authority for application was “not persuasive”, cit-

ing Kalur v. Resor, 335 F.Supp. 1 (D.D.C. 1971).

In Kalur, the court held that the Corps of Engineers was re-

quired to issue an impact statement before granting a permit

to dump “refuse” into navigable waters, pursuant to its admin-

istration of the Rivers and Harbors Act of 1899, 33 U.S.C.

§ 407 (1971). This decision was partly responsible for the

FWPCA Amendments of 1972, giving EPA authority over

the issuance of discharge permits, and exempting issuance

from NEPA. Pub. L. No. 92-500, 86 Stat. 814 (1972). See

statement of Senator Hart, 118 Conc. REc. 16890 (daily ed.

Oct. 4, 1972). Kalur was subsequently dismissed as moot on

appeal to this court by order, following the enactment of the

new legislation, and is of no precedential value.

The case most directly on point is Anaconda Copper Co. v.

Ruckelshaus, 4 E.R.C. 1817 (D. Colo. 1972). That case dealt

with the ability of Anaconda’s copper smelter, which emitted

sulphur oxides, to conform with EPA standards under § 110

of the Clean Air Act. After the Governor of the State of

Montana had deleted that portion of the State plan, relating

to these emissions—which affected only Anaconda—EPA pro-

posed its own standards. After administrative hearings, Ana-

conda brought suit in the district court to enjoin promulga-

tion of the rule. The district court held that more than the

“standard of performance” which reflects “the best system

of emission reduction”, and requires the Administrator to

take “into account the cost of achieving such reduction.”

These criteria require the Administrator to take into ac-

count counter-productive environmental effects of a pro-

posed standard, as well as economic costs to the industry.

The Act thus requires that the Administrator accompany

a proposed standard with a statement of reasons that sets

forth the environmental considerations, pro and con which

have been taken into account as required by the Act, and

minimal due process required in rule-making proceedings

should have been afforded at the EPA hearing since the regula-

tion, in effect, applied only to Anaconda, that there was insuffi-

cient evidence to support the standards, and that EPA should

have been required to file an impact statement pursuant to

NEPA. Leaving aside the threshold question as to whether the

district court properly took jurisdiction of the proposed rule,

see Environmental Defense Fund et. al. v. Ruckelshaus, Slip

Opinion No. 72-1548 (D.C. Cir., filed March 30, 1973), we

think the thrust of the district court’s concern, which we

share, was the seeming refusal of the EPA to take into ac-

count possible adverse impact on water quality which might

arise from its air standards. This problem was “not studied

or considered by the Administrator” according to the findings

of fact of the district court. This concern could have been re-

flected in a requirement that information be developed on this

point in conjunction with the hearings on the standard, but

instead the court chose to enjoin the rule on the basis of the

failure to file an impact statement. We think the examination

of support for this holding was myopic, and rested heavily

on the logic of the words “all federal agencies” which, as we

have indicated infra, text at notes 12, 13, is only itself de-

pendent on the non-obvious premise that EPA is a “federal

agency” within the meaning of NEPA.

See also Appalachian Power Co. v. EPA, 5 ERC 1222 (4th

Cir. 1973) and Duquesne Light Co. v. EPA, Slip Opinion No.

72-1542 (3rd Cir., filed April 2, 1973) holding NEPA inap-

plicable to actions of Administrator in approving state imple-

mentation plan under § 110 of the Clean Air Act.

fulfillment of this requirement is reviewable directly by

this Court.“

Although the rule-making process may not import the

complete advantages of the structured determinations of

NEPA into the decision-making of EPA, it does, in our

view strike a workable balance between some of the ad-

vantages and disadvantages of full application of NEPA.

Without the problems of a NEPA delay conflicting with the

constraints of the Clean Air Act, the ability of other agen-

cies to make submissions to EPA concerning proposed

rules, provides a channel for informed decision-making.

These comments will be part of the record in the rule-

making proceeding that EPA must take into account.

EPA's proposed rule, and reasons therefor, are in-

One of the major reasons Senator Muskie offered for not

generally applying NEPA to EPA water pollution control ac-

tivity, during the FWPCA amendments debate of 1972, was

that the Federal Water Pollution Control Act “specifically iden-

tifies factors to be considered by the Administrator”. 118 Conc.

REC. 16878 (daily ed. Oct. 4, 1972). The standard of the “best

system” is comprehensive, and we cannot imagine that Con-

gress intended that “best” could apply to a system which did

more damage to water than it prevented to air.

This approach avoids the straitjacket that NEPA would

impose on the time requirements mandated by the Clean Air

Act. EPA would have 120 days to issue, as part of its reasons,

its consideration of possible adverse environmental effects,

along with its proposed standard. This need not be the “de-

tailed” statement required by NEPA. We would expect, how-

ever, that all documents which supported its conclusion on

this question be made available for comment. Standard CEQ

guidelines, or those of the Environmental Protection Agency,

for circulation of impact statements could be adapted to pro-

vide for circulation to other federal agencies of the statement

of reasons and supporting documents. Time allowed for com-

ment would be made to depend on the strict time require-

ments of the section 111 proceeding.

evitably an alert to environmental issues. The EPA’s pro-

posed rule and reasons may omit reference to adverse en-

vironmental consequences that another agency might dis-

cern, but a draft impact statement may likewise be marred

by omissions that another agency identifies. To the extent

that EPA is aware of significant adverse environmental

consequences of its proposal, good faith requires appropri-

ate reference in its reasons for the proposal and its under-

lying balancing analysis. While there is more flexibility

than NEPA’s requirement of an impact statement, this

court has stated, and EPA has recognized, that an EPA

statement of reasons for standards and criteria require a

fuller presentation than the minimum rule-making require-

ment of the Administrative Procedure Act. A ennecott

Copper v. EPA, supra.

Similarly, EPA’s proposed rule, and reasons therefor,

are an alert to the public and the Congress who will have

the opportunity to comment as to possible adverse environ-

mental effects of the proposed rule, during the pendency of

the rule making proceeding. And finally, the courts will be

able to scrutinize the analysis of environmental considera-

tions, in assuring that a reasoned decision has been

reached.“

The court's review guards against arbitrary disregard

of environmental factors by EPA without significantly in-

creasing the administrative burden on the agency. And

since all environmental questions will have to be consid-

ered within the same review proceeding as other chal-

lenges to the validity of standards, the potential for inere-

mental litigation delay is minimized.

The combination of reasons relating to possible adverse

environmental impact with those justifying the standards

generally, directs the attention of the reviewing court to the

“reasoned basis” which supports the rule as a whole, rather

than permiting challenges based on particular per se viola-

tions of NEPA.

As to the standard here at issue, petitioners raise pos-

sible adverse environmental impact questions in their

briefs. But they have not indicated that these problems

were brought to the attention of the agency. Since we are

remanding the case for other reasons subsequently dis-

cussed, EPA should respond to these questions on remand.

We add, finally, a word of clarification: we establish a

narrow exemption from NEPA, for EPA determinations

under section 111 of the Clean Air Act. NEPA must be

accorded full vitality as to non-environmental agencies, as

established by our outstanding precedents.“

III. Economic Costs

The objecting companies contend that the Administrator

has not complied with the mandate of 4111 of the Act,

which requires him to “[take] into account the cost” of

achieving the emission reductions he prescribes, a statu-

tory provision that clearly refers to the possible economic

impact of the promulgated standards.“ The nature of

45 Petitioner Portland Cement Association asserts in its

Brief at 34:

Increased electricity needed to operate precipitators with

greater collection capacity can create increased air pol-

lution by the source of the electricity. Also, stricter

standards will result in the collection of more particu-

lates. These must be disposed of somehow.

The alkaline content of cement must be limited and,

since much of the collected particulate is substantially

alkaline, it cannot be used in production but must be

discarded. This waste is usually combined with water

and may cause alkaline pollution through direct dis-

charge or the seepage of percolating waters into streams

and rivers. Currently Petitioner is discussing with E.P.A.

a study to determine what can be done to reduce or avoid

this result.

46 Calvert Cliffs, supra.

47 An amendment which would have deleted consideration

these cost and economic contentions is such that it is pos-

sible, and we find it convenient, to consider them now, be-

fore describing the industry’s processes, which will be pre-

sented below in the consideration of other issues.

The Administrator found in the Background Document

that, for a new wet-process plant with a capacity of 2.5

million barrels per year, the total investment for all in-

stalled air pollution control equipment will represent ap-

proximately 12 percent of the investment for the total fa-

cility. He also found that [annual operating costs for

the control equipment will be approximately 7 percent of

the total plant operating costs if a baghouse is used for

the kiln, and 5 percent if an electrostatic precipitator is

used.” *

Petitioners argue that this analysis is not enough—that

the Administrator is required to prepare a quantified cost-

benefit analysis, showing the benefit to ambient air condi-

tions as measured against the cost of the pollution devices.

However desirable in the abstract, such a requirement

would conflict with the specific time constraints imposed on

the Administrator. The difficulty, if not impossibility, of

quantifying the benefit to ambient air conditions,“ further

militates against the imposition of such an imperative on

of economic impact was proposed by Congressman Ryan of

New York, who stated:

I believe that the threat to our environment is so great

that, as a matter of public policy, industry should be re-

quired to use the most advanced technology regardless of

whether or not a particular industry finds it economically

feasible.

This amendment was rejected on voice vote. 116 Cod. REC.

19242-4383 (1970).

JA at 50.

% See Note, Cost-Benefit Analysis and the National Environ-

mental Policy Act of 1969, 24 STANF. L. REV. 1092, 1098ff

(1972), and authorities cited therein.

the agency. Such studies should be considered by the Ad-

ministrator, if adduced in comments, but we do not inject

them as a necessary condition of action.

The EPA contention that economic costs to the industry

have been taken into account, derives substantial support

from a study prepared for EPA, which was made part of

the rule-making record and referred to in the Background

Document, entitled “The Financial Impact of Air Pollution

Control Upon the Cement Industry“. It concluded that

the additional costs of control equipment could be passed

on without substantially affecting competition with con-

struction substitutes such as steel, asphalt and aluminum,

because “[d]emand for cement, derived for the most part

from demand for public and private construction, is not

highly elastic with regard to price and would not be very

sensitive to small price changes.” The study did note that

individual mills may be closed in the years ahead, but ob-

served that these plants were obsolete both from a cost

and pollution point of view. Petitioners have not challenged

these findings here. The Administrator has obviously given

some consideration to economic costs.

2. Two questions related to economic considerations re-

main: (1) the possible effect of the standards on the fu-

ture building of wet-process plants generally, and the use

of electrostatic precipitators as a control device; and (2)

possible unfair discrimination between standards set for

cement plants, and those set for power plants and inciner-

ators.

As appears from our examination of technological feas-

ibility, in Part IV of this opinion, a substantial question

arises as to whether either wet process plants, or any

process using electrostatic precipitators, will be able to

achieve mandated pollution control. The HEW Atmospheric

5 FINANCIAL IMPACT, supra note 40, at 42.

Emissions Study, relied on by EPA, reported that as of

1967 there were 110 wet process and 69 dry process plants

in the United States, and that they were “expected to in-

crease at a comparable rate.” " As to exclusion of electro-

static precipitators, the record shows that they are a

cheaper technology than fabric filters. Since remand is re-

quired for other reasons, as appear from Part IV, we con-

fine our analysis at this juncture to a declaration that on

remand the Administrator should consider, as a matter of

economic costs, contentions and presentations submitting

that the standard as adopted unduly precludes supply of

cement, including whether it is unduly preclusive as to cer-

tain qualities, areas, or low-cost supplies.

3. Petitioners also challenge the cement standards as un-

fair in light of lower standards mandated for fossil-fuel-

fired steam generating power plants and incinerators.”

They claim that while the cement standard, as expressed in

grains of particulates allowed per standard cubic foot of

gas (g/scf), requires a reduction to .03, power plants are

permitted to reach .12 and incinerators to be at .10. Also

opacity standards differ, with no opacity standard set for

51 KREICHELT, T. E., KEMNITZ, D. A., AND CUFFE, S. T., Ar-

MOSPHERIC EMISSIONS FROM THE MANUFACTURE OF PORTLAND

CEMENT, U.S. Dept. HEW, PHS, National Center for Air Pol-

lution Control, PHS Publication No. 999-AP-17 (1967) (here-

inafter ATMOSPHERIC EMISSIONS), at 6.

52 These standards were proposed jointly with those of

portland cement, 36 Fed. Reg. 15704 (1971), and were adopt-

ed at the same time, 36 Fed. Reg. 24876 (1971). The stand-

ards for fossil fuel steam generators are challenged in appeal

to this court in Appalachian Power Co. v. EPA, Docket No.

72-1079.

53 The promulgated standards for cement, expressed in par-

ticulate levels measured against pounds per ton of feed to the

kiln, are convertible, for purposes of comparison, into grains

of particulates per standard cubic foot of gas.

incinerators, and with a 20% requirement for power plants

(with 40% opacity permitted for not more than 2 minutes

in any hour).

First, we identify petitioner’s mistake in attaching any

weight to a comparison of the proposed standards, whereas

the standards as finally adopted permitted pollution stand-

ards of only .08 for incinerators and .10 for power plants,

compared with .03 for cement plants.

EPA, in response to comments from petitioners on this

issue of discrepancy, stated in its supplemental statement

in March 1972: “The difference between the particulate

standard for cement plants and those for steam generators

and incinerators is attributable to the superior technology

available therefor (that is, fabric filter technology has not

been applied to coal-fired steam generators or incinera-

tors).”

This statement seems to be supported by the Background

Document.” It suggests that there has indeed been a dif-

5437 Fed. Reg. 5767 (1972). We also note that EPA dis-

agreed with petitioners as to the relevant numbers to compare.

EPA stated that the power plant standard was “0.06 grains

per standard cubic foot at normal excess air rates”, and that

the incinerator standard, while .08 “corrected to 12 percent

carbon dioxide”, was .05 “[u]ncorrected, at normal conditions

of 7.5 percent carbon dioxide.”

5% The August 1971 Background Document was used to

support the incinerator and power plant standards, as well as

cement standards. The statement is subject to the amplifica-

tion (JA 29) that fabric filters are scheduled to be installed”

at a power station, though “no full scale fabric filters have

been demonstrated on coal fired steam generators.” As to mun-

nicipal incinerators, the Document refers to a “small Swiss

unit” with a fabric filter tested with European sampling pro-

cedures, to lower emission in a “small pilot installation” op-

erated by Pasadena in 1960, and to incinerators (over 50

tons per day) equipped with baghouses that “will be put into

service in late 1971 in the United States and Switzerland.”

ference in the extent of application of fabric filter tech-

nology to cement plants, on the one hand, and power plants

and incinerators on the other, although we are not in-

formed by the Administrator as to what characteristics of

the concerned industries might account for such differences.

This March 1972 statement of the Administrator was

made in response to comments of the cement producers,

and was not offered as justification for the cement stand-

ards, which were based solely on emission control available

to that industry. Petitioners did not identify this part of

the March 1972 supplemental statement as troublesome

when they sought a remand from this court on other points.

However, this is more a matter of atmosphere than disposi-

tive ruling, for if the producers now gave significant indi-

cation that they had been dealt with unfairly or invalidly

we could doubtless find a procedural path for consideration.

The core of our response to petitioners is that the Ad-

ministrator is not required to present affirmative justi- i

fications for different standards in different industries.

Inter-industry comparisons of this kind are not generally

required, or even productive; and they were not contem-

plated by Congress in this Act. The essential question is

whether the mandated standards can be met by a partic-

ular industry for which they are set, and this can typically

be decided on the basis of information concerning that in-

dustry alone. This is not to say that evidence collected

about the functioning of emission devices in one industry

may not have implications for another. Certainly such in-

formation may bear on technological capability. But there i

is no requirement of uniformity of specific standards for

(JA at 40, 41). If the same technology is now available and in

use for incinerators, steam power plants and cement plants,

the Administrator on remand may wish to offer some further i

explanation of the difference in standards set simultaneously

for the three industries.

—

all industries. The Administrator applied the same general

approach, of ascertaining for each industry what was feas-

ible in that industry. It would be unmanageable if, in re-

viewing the cement standards, the court should have to

consider whether or not there was a mistake in the incinera-

tor standard, with all the differences in parties, practice,

industry procedures, and record for decision. Of course,

the standard for another industry can be attacked, as too

generous, and hence arbitrary or unsupported on the rec-

ord, by those concerned with excessive pollution by that

industry. There is, therefore, an avenue of judicial review

and correction if the agency does not proceed in good faith

to implement its general approach. But this is different

from the supposition that a claim to the same specific treat-

ment can be advanced by one who is in neither the same

nor a competitive industry.

There is, of course, a significant and proper scope for

inter-industry comparison in the case of industries pro-

ducing substitute or alternative products. This bears on

the issue of “economic cost”. But this cemparison was

utilized in arriving at the agency decision, and no conten-

tion is raised in this court that such competitive-industry

impact was either ignored or assessed invalidly.

IV. AcHtevaBiLity or Emission Stanparp

Section 111 of the Act requires “the degree of emission

limitation achievable [which] . . . the Administrator de-

termines has been adequately demonstrated.” Petitioners

contend that the promulgated standard for new stationary

sources has not been “adequately demonstrated”, raising

issues as to the interpretation to be given to this require-

ment, the procedures followed by the agency in arriving

at its standard, and the scientific evidence upon which it

was formulated. An examination of these questions re-

quires a brief description of the process used to manufac-

ture portland cement and the devices presently employed

to control emissions.

A. Present types of Emission Control in the Manufacture

of Portland Cement

In the manufacturing process for portland cement,“ the

principal ingredients, limestone and clay, are combined,

after having been reduced to a powdery fineness, to make

a substance known as raw feed. The powdered limestone

and clay are mixed by either the wet process or the dry

process. In the wet process, water is added to the limestone

and clay to make a slurry, which is then introduced into a

kiln. In the dry process, the two substances are mixed me-

chanically and by use of air before the mix is introduced

into a kiln.

Raw feed is introduced to the kiln at ambient air tem-

perature and is then heated to a temperature of about

2700° Fahrenheit, produced within the kiln by the use of

various fuels. The emission standards under challenge here

relate solely to the control of particulate matter produced

by the kiln operation.

56 The following description of the manufacturing process

is based on ATMOSPHERIC EMISSIONS, supra note 51, and the

Affidavit of Ralph H. Striker, a professional engineer, sworn

on June 9, 1972. C.R., Tab IX, at 1. Striker described his

background as follows:

Since 1938 I have been engaged in various process phases

of the cement industry; my professional specialty is the

chemistry of portland cement manufacture, including

process design and related instrumentation control. With-

in the scope of my specialty is the chemical processes oc-

curring in the manufacture of portland cement and emis-

sions and gas emanating therefrom. Presently I am Vice

President of Bendy Engineering Company, St. Louis,

Missouri, where I have participated in the design from a

basic process standpoint of not less than ten kilns in the

last ten years.

— +

The kiln operation involves the chemical process known

as calcining limestone; carbon dioxide is driven from the

limestone, converting calcium carbonate (CaCO;) into cal-

cium oxide (CaO), (CaCO: yields CO. + CaO). The calcium

oxide later combines with the clay to form a substance

known as “clinker”, the basic component of cement. The

calcination process produces gases and dust as by-prod-

ucts. The particulate matter is suspended in the hot ex-

haust gas and the various types of emission control de-

vices remove this matter from the gas, before it is emitted

into the atmosphere through a stack.

The two types of equipment principally used in remov-

ing particulate matter from the exhaust gas are electro-

static precipitators and glass fabric bags, impregnated

with graphite, located in a “bag house.” When the precipi-

tator is used, dust particles are charged and pass through

an electrical field of the opposite charge, thus causing the

dust to be precipitated out of the exhaust gas and there-

after collected by the device. When glass fabric bags are

used, the exhaust gas is cooled, sometimes by a water

spray, so that the bags will operate without damage from

excessive heat. The bag filters out the particulate dust,

though sometimes the coolant combines with the dust to

form a gummy substance as residue in the bags, which

must be continuously cleaned out in order to avoid impair-

ing the permeability of the bag.

It is the ability of control devices such as precipitators

and bags to separate out a sufficient amount of particulate

from the exhaust—in accord with the proposed standards

—which is under challenge by the manufacturers. The stand-

ard requires that the particulate matter emitted from port-

land cement plants not be “in excess of 0.30 lb. per ton of

feed to the kiln . . . maximum 2-hour average”.

B. Technology Available For New Plants

We begin by rejecting the suggestion of the cement

manufacturers that the Act's requirement that emission lim-

itations be “adequately demonstrated” necessarily implies

that any cement plant now in existence be able to meet

the proposed standards. Section 111 looks toward what

may fairly be projected for the regulated future, rather

than the state of the art at present, since it is addressed

to standards for new plamts—old stationary source pollu-

tion being controlled through other regulatory authority.”

It is the “achievability” of the proposed standard that is in

issue.

The language in section 111 was the result of a Confer-

ence Committee compromise, and did not incorporate the

language of either the House or Senate bills.“ The House

hill would have provided that “the Secretary . . . [give]

appropriate consideratiom to technological and economic

feasibility”, while the Senate would have required that

standards reflect “the greatest degree of emission control

which the Secretary determines to be achievable through

application of the latest available control technology, proc-

esses, operating methods, or other alternatives.”

The Senate Report made clear that it did not intend that

the technology “must be in actual routine use some-

* Under §§ 109-110, 42 U.S.C. § 1857c-4, 5, of the Clean

Air Act the Administrator sets national primary and sec-

ondary ambient air standards relating to required air quality

for each air pollutant. States must draw up a plan to comply

with such standards, which in turn must be approved by EPA.

These ambient air standards relate to pollution from any

source, whether it be old or new, stationary or moving, but

specific new or modified stationary sources are only regulated

directly under § 111.

The Conference Committee considered S.4358, 91st Cong.,

2d Sess., 113 (1970) and H.R. 17255, 91st Cong., 2d Sess.

sec. 112 (1970). The Report of the Conference does not dis-

cuss the language finally adopted, H. REP. No. 91-1783, 91st

Cong., 2d Sess. 9, 45 (1970).

where.”® The essential question was rather whether the

technology would be available for installation in new

plants. The House Report also refers to “available” tech-

nology. Its caution that [iln order to be considered

‘available’ the technology may not be one which constitutes

a purely theoretical or experimental means of preventing

or controlling air pollution” ® merely reflects the final lang-

uage adopted, that it must be “adequately demonstrated”

that there will be “available technology”.

The resultant standard is analogous to the one examined

in International Harvester, supra. The Administrator may

make a projection based on existing technology, though that

projection is subject to the restraints of reasonableness and

cannot be based on “crystal ball” inquiry. Slip Opinion at

18. As there, the question of availability is partially de-

pendent on “lead time”, the time in which the technology

will have to be available. Since the standards here put into

effect will control new plants immediately, as opposed to

one or two years in the future, the latitude of projection

is correspondingly narrowed. If actual tests are not relied

on, but instead a prediction is made, “its validity as applied

to this case rests on the reliability of [the] prediction and

the nature of [the] assumptions.” International Harvester

at 45.

C. Right to Comment on EPA Methodology

We find a critical defect in the decision-making process in

arriving at the standard under review in the initial inability

of petitioners to obtain—in timely fashion—the test results

and procedures used on existing plants which formed a par-

tial basis for the emission control level adopted, and in the

subsequent seeming refusal of the agency to respond to what

5 g. REP. No. 9-1196, 91st Cong., 2d Sess. 16 (1970).

seem to be legitimate problems with the methodology of

these tests.

1. Unavailability of Test Methodology

The regulations under review were first proposed on

August 3, 1971 and then adopted on December 16, 1971.

Both the proposed and adopted rule cited certain portland

cement testing as forming a basis for the standards. In the

statements accompanying the proposed rule, the Adminis-

trator stated:

The standards of performance set forth herein are

based on stationary source testing conducted by the

— Protection Agency and/or contrac-

On December 16, this test reliance was reiterated : @

The standards of performance are based on station-

ary source testing conducted by the Environmental

Protection Agency and/or contractors ... .

As indicated in the earlier statement of the case, the

proposed standard was accompanied by a Background

Document which disclosed some information about the

tests, but did not identify the location or methodology used

in the one successful test conducted on a dry-process kiln.

Farther indication was given to petitioners that the Admin-

istrator was relying on the tests referred to in the Back-

ground Document, when the statement of reasons accom-

panying the adopted standard were expanded in mid-March

of 1972, in the supplemental statement filed while this case

was pending on appeal to our court. The Administrator

there stated:

The proposed standard was based principally on par-

* 36 Fed. Reg. 15704 (1971).

*2 36 Fed. Reg. 24876 (1971).

*3 37 Fed. Reg. 5767 (1972).

. SRO ERES 2 ae

For the first time, however, another set of tests was re-

ferred to, as follows:

standard.

e eee

These two testing programs were referred to in the March

1972 supplemental statement, but the details, aside from

a summary of test results, were not made available to pe-

titioners until mid-April 1972. At that time, it was revealed

that the first set of tests was conducted April 29-30, 1971,

by a contractor for EPA, at the Dragon Cement Plant, a

dry process plant in Northampton, Pennsylvania, and that

the second set was performed at the Oregon Portland Ce-

ment plant, at Lake Oswego, Oregon, a wet process plant,

on October 7 and 8, 1971. The full disclosure of the method-

ology followed in these tests raised certain problems, in

the view of petitioners, on which they had not yet had the

opportunity to comment. Their original comments in the

period between the proposal and promulgation of the regu-

lation could only respond to the brief summary of the re-

sults of the tests that had been disclosed at that time.

After intervenor Northwestern States Portland Cement

Company received the detailed test information in mid-

April 1972, it submitted the test data, for analysis of relia-

bility and accuracy, to Ralph H. Striker, an engineer exper-

ienced in the design of emission control systems™ for

portland cement plants. He concluded that the first series

of tests run at the Dragon Cement Company were “grossly

See note 56 supra.

erroneous” due to inaccurate sampling techniques to mea-

sure particulate matter.“ Northwestern States then moved

this Court to remand the record to EPA so that the agency

might consider the additional comments on the tests. This

motion was granted on October 31, 1972.% This action by

the Court was based on “the flexibility and capacity for re-

examination that is rooted in the administrative process”.

International Harvester, Slip Op. at 25. We considered this

opportunity to make further comments necessary to sound

execution of our judicial review function.”

We are aware that EPA was required to issue its stand-

ards within 90 days of the issuance of the proposed regula-

tion, and that this time might not have sufficed to make an

adequate compilation of the data from the initial tests, or to

fully describe the methodology employed. This was more

likely as to the second tests, which were begun during the

pendency of the proposed regulation. In contrast, more than

three months intervened between the conduct of the first

tests and the issuance of the proposed regulation. Even as

to the second tests however, as we indicated in Interna-

tional Harvester, which involved the issue of the availabil-

ity of the Technical Appendix upon which the auto emission

suspension decision was based, the fact that the agency

chose to perform additional tests and release the results

indicates that it did not believe possible agency considera-

tion was frozen. Slip opin. at 26. It is not consonant with

C. R. Tab IX, Striker Affidavit at 2.

A motion of similar effect was granted as to petitioner-

intervenor Medusa Corp. to make additional presentations to

the agency, on June 23, 1972.

Written comments were submitted as requested, and as

required by the APA § 4(c), 5 U.S.C. § 553(c). Obviously a

prerequisite to the ability to make meaningful comment is to

know the basis upon which the rule is proposed.

r =

the purpose of a rule-making proceeding to promulgate

rules on the basis of inadequate data, or on data that,

critical degree, is known only to the agency.

2. The EPA response to the Remand

In this case, EPA made no written submission as to the

additional comments made by petitioners. Our remand

was ordered, as to Northwestern, on October 31, 1972. All

that EPA did was to comply with the mandate that the

analysis of Mr. Striker be added to the certified record. It

may be that EPA considers Mr. Striker’s analysis invalid—

but we have no way of knowing this. As the record stands,

all we have is Mr. Striker’s repudiation of the test data,

without response. The purpose of our prior remand can-

not be realized unless we hear EPA’s response to his

comments, and the record must be remanded again, for that

purpose.

We are not establishing any broad principle that EPA

must respond to every comment made by. manufacturers

on the validity of its standards or the methodology and

scientific basis for their formulation. In the case of the

Striker presentation, however, our prior remand reflects

this court’s view of the significance, or at least potential

significance, of this presentation. If this were a private

lawsuit, we might reverse the order under appeal for fail-

ure of its proponent to meet the burden of refutation or

explanation. Since this is a matter involving the public

interest, in which the court and agency are in a kind of

partnership relationship for the purpose of effectuating

the legislative mandate, we remand. This agency, particu-

larly when its decisions can literally mean survival of per-

sons or property, has a continuing duty to take a “hard

look” at the problems involved in its regulatory task, and

that includes an obligation to comment on matters identi-

fied as potentially significant by the court order remanding

for further presentation. Manufacturers’ comments must

be significant enough to step over a threshold requirement

of materiality before any lack of agency response or con-

sideration becomes of concern. The comment cannot merely

state that a particular mistake was made in a sampling

operation; it must show why the mistake was of possible

significance in the results of the test. This was certainly

done by Mr. Striker, who on the basis of some extensive

mathematical calculations stated:

It is my personal opinion that the particulate matter

emissions of .202 pounds in test 1 per ton of kiln feed

reported in the summary sheet on Page vii and again

on Page 6 of Exhibit 4-A is grossly erroneous, and

that the correct emission of particulate matter is in

the neighborhood of .404 pounds per ton of kiln feed.

In order that rule-making proceedings to determine

standards be conducted in orderly fashion, information

should generally be disclosed as to the basis of a proposed

rule at the time of issuance. If this is not feasible, as in case

of statutory time constraints, information that is material

to the subject at hand should be disclosed as it becomes

available, and comments received, even though subsequent

to issuance of the rule—with court authorization, where

necessary. This is not a requirement that the rule be

suspended, though the court may consider an application

for stay based on probability of success and furtherance

of the public interest. Virginia Petroleum Jobbers v.

F. P. C., 104 U.S.App.D.C. 106, 259 F.2d 921 (1958).

Conversely, challenges to standards must be limited to

points made by petitioners in agency proceedings. To

entertain comments made for the first time before this

court would be destructive of a meaningful administrative

process.

There are claims made in this court which were not pre-

sented to EPA. For example, petitioner Portland Cement

— .

Association states in its brief,“ in regard to the first set of

tests at the Dragon Cement Plant:

Mistakes and conditions occurred which prevented the

test from using observed, measured values. Encrusted

solids were thought to cause a high reading in Run 1

so lower readings from other tests were substituted.

The area of a duct was calculated rather than

measured due to the presence of deposits. And liquid

from Run 3 was erroneously poured into a beaker

from Run 2.

From the reference supplied in petitioner’s brief, we dis-

cern that this criticism of testing procedure was based upon

data released on the testing after the 45 day period of com-

ment had passed, and so there was no opportunity at that

time to bring this sampling error to the attention of the

agency. However, our October 1972 remand gave EPA

an opportunity, in its updating and ongoing reexamination,

to make a specific comment on petitioner’s objection to the

Dragon plant test. Instead, only the comment of Mr.

Striker was presented.

Ordinarily, we would not consider comments not pre-

sented to EPA. But here there was belated disclosure by

EPA of back-up testing, and remand will be necessary con-

cerning the Striker criticism. Accordingly, we will pro-

vide that EPA should, on remand, consider the contentions

presented in briefs to this court, though not previously

raised, unless EPA explains why they are not material. It

will be for EPA, on the remand, to examine the relevancy

and import of petitioners’ criticisms of the Administrator’s

methodology.

3. Analysis of Support for Standards

A troublesome aspect of this case is the identification

of what, in fact, formed the basis for the standards promul-

gated by EPA—a question that must be probed prior

Portland Cement Association Brief at 17-18.

to consideration of whether the basis or bases for the

standards is reliable. Nominally, there would seem to

be three major bases for the rule and its standards: (1)

the tests run on the dry-process Dragon Cement Plant, (2)

the tests run on the wet-process Oregon Cement Plant, and

(3) literature sources. The two tests were discussed by

EPA in the supplemental statement issued subsequent to

the issuance of the rule. As to literature sources, the Back-

ground Document issued with the proposed rule identifies

as “a principal literature source” a government study, un-

dertaken under the auspices of HEW in 1967, entitled “At-

mospherie Emissions from the Manufacture of Portland

Cement”.

In the briefs to this Court, EPA counsel disclaim reli-

ance on these three sources, despite statements directly

to the contrary accompanying the proposed and promul-

gated rule, and the supplementary statement of reasons

issued on the basis of Kennecott.

In regard to the tests, the EPA brief states: ®

Since the tests conducted by EPA were used, along

with other items, to assist in determining what emis-

sion levels were being achieved by properly maintained

and operated control equipment, and were not used as

the primary basis for the cement standards, petition-

er’s criticisms of such tests and testing procedures

are irrelevant. (emphasis supplied)

The brief further states that the HEW study “was not re-

lied upon to support the achievability of the cement stand-

ards”.”°

Counsel on appeal cannot substitute new reasons for those

offered by the agency.“ Certainly, counsel cannot disclaim

% Brief at 21-22.

70 Id. at 19.

71 Burlington Truck Lines v. United States, 371 U.S. 156,

. 2 nh heme atentss . trade "bal

reliance on reasons offered by the agency in its statement

of reasons, except in the sense that errors may be asserted

to fall within the limited “harmless error” doctrine appli-

cable to administrative agencies.

We turn now to the specific technical problems raised by

the cement manufacturers.

a. Dragon Cement Plant tests *

Two kilns were tested by the EPA contractor at the

Dragon Cement Plant.” A test of a dry-process kiln con-

trolled with a baghouse is used for support of the standard

since testing “showed particulate emissions of 0.20 pound

per ton of feed, which is below the proposed standard.“

This particular plant was selected for testing on the basis

that it was reportedly one of the 12 hest controlled plants in

the United States.

168-9 (1962) ; International Harvester, supra, slip op. at 25;

Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 411,

379 F.2d 453, 465 (1967).

72 A description and analysis of these tests is in the Certi-

fied Record, Tab V(i). Emission Testing Report, ETB Test

Number 71-MM-05. Emissions from Dry Process Cement Kiln

at Dragon Cement Company, Northampton, Pennsylvania.

Environmental Protection Agency, Office of Air Programs.

™ The Background Document indicates that two wet proc-

ess kilns controlled by electrostatic precipitators were unable

to meet the proposed standards, and they are not relied upon

here. We are not supplied with an identification of the plant (s)

where these tests were performed. The Background Document

states that four kilns were tested but that “results of only

three tests were available at the time the standards were

proposed” and also discloses that the missing test was per-

formed upon a dry process kiln. JA at 47-48. We are uncertain

whether this fourth kiln was one of the two tested at the

Dragon Plant or was located at still another plant.

™ Id. at 48.

The first point raised by petitioner, and included in the

comments by cement manufacturers presented te the agency

on its proposed standard,” was that a single test offered a

weak basis for inferring that all new cement plants would

be able to meet the proposed standards. As we stated in In-

ternational Harvester, supra, slip opin. at 55, “It would

... seem incumbent upon the Administrator to estimate the

possible degree of error inherent in his prediction.” The sig-

nificance of the lack of any indication of statistical relia-

bility was underscored by T. E. Kreichelt, the author of the

HEW study relied upon by the Administrator, in a letter,

by way of comment, on the proposed standard.” He stated

that “the emission limit was based on one (1) test, i.e. the

fabric filter test. . I do not believe that the emission limits

should be selected on only four tests, much less one test.”

Mr. Kreichelt raised a second and related point addressed

to the reliability of a prediction based on a successful dry-

process plant, for a prediction that wet-process plants would

be able to also meet the standard. He stated in this re-

gard:

Another outcome of basing emission limits on insuffi-

cient data is that the limit may represent only part of

a given industrial classification. For example, is 0.30

lb/ton of feed attainable only for dry-process kilns?

Or is it also attainable for wet-process kilns? Prob-

ably both, but there is not even one test to substanti-

ate the limit for wet-process kilns. For each variation

of each process of each source classification, the num-

ber of tests required should be sufficient (say, three

™% See Comments in C. R. Tab VIII, items 10 (Portland Ce-

ment Association), 14 (General Portland Cement Company),

20 (Ideal Basic Industries, Inc.)

Letter of Thomas E. Kreichelt, C.R. Tab VIII, item 27, at

7 Id.

wee

— 2 ee ees .

tests within the limit) to result in statistically sound

limits.

We are not here considering a regulation that was is-

sued in the contemplation that all new cement plants will be

dry-process, and controlled by baghouses on the theory

that this is the “best system” of emission control. Pos-

sibly such an approach would be feasible, but in any event

it would require underlying reasons, by EPA, to terminate

the process which the HEW had identified as major now

and in future projection.”

A second objection is to the techniques used by the EPA

to measure emissions from the Dragon plant.

These “sampling” techniques assume particular impor-

tance if they deviate from procedures, outlined by regula-

tion, for ascertaining compliance with prescribed stand-

ards. Although this difference could be eliminated—as the

Administrator attempted to do in International Harvester

by rewriting “sampling” techniques, rather than lower-

ing standards, a significant difference between techniques

used by the agency in arriving at standards, and require-

ments presently prescribed for determining compliance

with standards, raises serious questions about the validity

of the standard.”

™ See ATMOSPHERIC EMISSIONS, supra note 51, at 6-7.

7 “Sampling” techniques were modified by EPA between

the date of the proposed rule and the promulgated rule in this

case. The EPA stated in adopting the rule here under review,

36 Fed. Reg. 24876 (1971), at J 1:

Particulate matter performance testing procedures have

been revised to eliminate the requirement for impinges

in the sampling train. Compliance will be based only on

material collected in the dry filter and the probe preced-

ing the filter.

We speak here of inconsistencies between the revised stand-

ards and the tests performed on which the standards were

based.

The cement manufacturers point, in this regard, to the

absence of continuous sampling in the EPA data, since the

“longest elapsed time of any sampling episode was 30

minutes“, e whereas under the regulations promulgated,

conformity is to be measured on the basis of maximum

2-hour averages." It is incumbent on the Administrator to

explain the discrepancy.

The second point raises the question, on the basis of

a handwritten note made by the EPA contractor, as to

whether the tested plant was operating at maximum per-

formance during testing. The contractor had noted, “Bag-

house is undersize and production is held back due to

this.” 2 Compliance tests under the regulation require,

however, that “All performance tests shall be conducted

while the affected facility is operating at or above the

maximum production rate.

Thirdly, petitioner contends that mistakes made in the

measurement process prevented the test from using ob-

served, measured values. As previously noted, encrusted

solids can collect in the bag, and must be constantly cleaned

out if the baghouses are to operate with efficiency. In one

of the runs conducted, the presence of solids in a duct lead-

ing to the stack were thought to cause a high reading, so

lower readings from other test runs were submitted. On

another run, the liquid, which was to be the basis for a

This claim is made on the basis of inspection of the full

report of the EPA contractor. See C.R. Tab V(i), App. E, at

41.

* 60.62 (a) (1), 36 Fed. Reg. 24876 (1971).

2 C. R. Tab Vi), App. B, at 22. This notation was made on

a form which required, in part, a “description of any un-

usual features about environment; height; odors; toxic con-

ditions, temperature, dust, etc.

8 60.64 (b), 36 Fed. Reg. 24876 (1971).

measurement of particulate concentration, was erroneously

poured into a beaker from a previous run.“ However, de-

viations from prescribed measurement techniques are not

necessarily significant as to testing results, and if peti-

tioners press this point on remand they must establish that

such test deviations bear significant consequences.

Finally, engineer Striker claims significant errors of

measurement were made in determining the measurement

of the cubic feet of stack gas per minute, and a resulting

understatement of the true volume of calcining carbon di-

oxide included in total stack gas. He states that com-

monly “35% (plus or minus 1%) of raw feed is converted

into carbon dioxide in the burning process. He then

notes that an accurate measure of raw feed is the volume of

calcining carbon dioxide * appearing in stack gas, which

in turn depends on an accurate measurement of the volume

of stack gas. His own calculations, based on EPA data

showing a stack flow rate of 51,187 cubic feet per minute of

dry gas, indicate that there were 2153 cubic feet per hour of

stack gas in the test attributable to calcining carbon dioxide

coming from the raw feed and that “as a matter of basic

chemistry” 2153 cubic feet of calcining carbon dioxide

“eomes only from 22.11 tons of raw feed.“ This was at

variance from the kiln rate of 44.03 tons of raw feed per

hour reported in the test. He concludes that the error

lay not in the measurement of the raw feed, but in the

test data reported on the stack gas volume—fiow rate of

51,187—which in his judgment requires more sophisticated

equipment for recording than does the raw feed which is

C. R. Tab V (i), at 7.

5 C. R. Tab IX, at 3.

The term calcining carbon dioxide is used to distinguish

it from the carbon dioxide that is the result of burning fuel

in the kiln.

* C. R. Tab IX, at 4.

easily measureable. Having corrected the stack gas figure,

he states his opinion that the EPA assumption of emissions

satisfying its ultimate 0.30 standard was in error.“ He con-

cluded :

It is rsonal opinion that the iculate matter

pn ge 202 pounds in test o ton of kiln

feed reported . . . is grossly erroneous and that the

correct emission of particulate matter is in the neigh-

borhood of .404 pounds per ton of kiln feed.

We are not competent to decide if Mr. Striker’s methodol-

ogy and conclusions are correct. We can note, however,

that he claims that as a matter of “basic chemistry” two

test values, for feed and gas volume, cannot co-exist. This

is certainly the type of criticism EPA should be required

to discuss on remand.

2. Oregon Portland Cement Plant tests

The Oregon plant was wet-process controlled by a bag-

house. Three tests were made on the kiln operation. The

brief of petitioner Portland refers to the test results of

the EPA contractor, and points out that these show that

in test 1 and 2, particulate emissions were .535 and .361

pounds per ton of kiln feed. Only in the third test was

there a result of .291 pounds. Petitioners argue that when

only one out of the three tests meet the EPA standards

(0.3 percent), the data undercut the validity of the stand-

ard. EPA’s brief did not address itself to this point, rely-

ing instead on its general expertise. If our study of the

matter is accurate, it appears that petitioners failed to take

into account that the standard, as promulgated, eliminated

Id. at 2.

A description and analysis of these tests is in the Certi-

fied Record, Tab V (öh), Emission Testing Report, ETB Test

Number 71-MM-15. Emissions from Wet Process Kiln at Ore-

gon Portland Cement, Lake Oswego, Oregon. Environmental

Protection Agency, Office of Air Programs.

= 1 ¹*—k ee ey

one of the sampling techniques required by the standard

as proposed. This undercuts petitioner’s contention.”

A more serious matter is presented by intervenor North-

western, which points to the fact that the EPA contractor’s

report indicates that sampling was not conducted when

“process operation was interrupted” and that sampling

was only conducted during the periods of “normal opera-

tion”. The report states:

Several conditions contributing to these interruptions

were: (1) excessive pressure drop across bag house,

(2) visible emissions from leaking bags, and (3) break-

7 of dust removal equipment. (C.R. Tab V (h) at

The concern of the manufacturers is that “start-up” and

“upset” conditions, due to plant or emission device mal-

function, is an inescapable aspect of industrial life, and

that allowance must be made for such factors in the stand-

ards that are promulgated. On August 18, 1972, some eight

months after the issuance of the standards under review,

and prior to our October, 1972 remand, the EPA pro-

posed a new regulation to take “startup, shutdown and mal-

function” problems into effect.“ The proposed regulation,

9 C. R. Tab V(h) at 5. Curiously EPA did not make the

point that the test results of .535, . 361, .291, showing only 1

out of 3 successful tests, were based on “total catch”. This

means that the results reflected readings based on probe, fil-

ter and impinger sampling techniques. As we observed how-

ever, note 79 supra, the adopted standard was based only on

probe and filter sampling techniques. The Oregon test gave

these results for tests conducted on that basis: .247, .309, .261,

which shows two successful tests and one almost successful.

C. R. Tab V(h), at 4-5.

37 Fed. Reg. 17214 (August 18, 1972). EPA admitted in

its introduction to the proposed regulation that the standards

here under review did not take into account this problem.

EPA attempted to obviate the implicit criticism by stating in

which as yet has not been adopted, sets up a procedure by

which emissions due to malfunction will not be the basis

of an enforcement action. It requires reports from manu-

facturers in cases where emissions exceed standards, re-

cording the “violation” and indicating what measures

will be taken to correct or minimize the excess emission

levels. The proposed regulation provides:

its proposal:

Such occurrences generally are dealt with by the exer-

cise of discretion in the Agency’s enforcement activities.

The exercise of this discretion would have been accom-

plished by means of an informal process, in which, be-

fore the Agency took enforcement action, sources that

had exceeded the standards would have attempted to

demonstrate to the Agency that such excess emissions

had been unavoidable.

Broadly read, however, this view of enforcement discretion

would defer the question of “available” technology to the en-

forcement stage, an approach not contemplated by section 111.

Companies must be on notice as to what will constitute a vio-

lation. Moreover, an excessively broad theory of enforcement

discretion might endanger securing compliance with promul-

gated standards.

We do agree, however, with the policy reasons offered by

EPA for moving from an informa! to a formal system of reg-

ulation. EPA’s explanation of its regulation stated:

Three fundamental reasons suggested the correctness of

this determination. First, the existence of a formal proc-

ess better informs the public of the policy and factual

issues which will underlie enforcement of the standards.

Second, affected industries which are making good faith

efforts to meet the standards will on the whole welcome

a regularized means of informing the Agency in detail

of the circumstances surrounding unavoidable emissions.

Third, the Agency expects to benefit substantially from

the information it will gain about the operation of the

processes in question, for both future enforcement and

standard setting.

—— 2 —— —

— ——— — —

(f) Nothing in this section shall relieve a source from

compliance with the standards set forth in this part

unless the Administrator determines that (1) the oc-

currence in question did not result from the failure

by the owner or operator of the source to operate and

maintain properly the affected facility, (2) all reason-

able were taken to correct, as expeditiously as

practicable, the condition causing the emissions to ex-

ceed the standards, including the use of off-shift labor

and overtime if necessary, and (3) all reasonable steps

were taken to minimize the emissions resulting from

the occurrence.

The proposed regulation, if adopted, may have conse-

quences which go beyond mere provision for malfunctions.

In some sense it imparts a construction of “reasonable-

ness” to the standards as a whole and adopts a more

flexible system of regulation than can be had by a sys-

tem devoid of “give.” As we noted in International Har-

vester, supra, a regulatory system which allows flexibility,

and a lessening of firm proscriptions in a proper case, can

lend strength to the system as a whole. “The limited safety

valve permits a more rigorous adherence to an effective

regulation.” Slip opin. at 44, quoting from WAIT Radio

v. FCC, 135 U.S. App. D. C. 317, 323, 418 F.2d 1153, 1159.

If the EPA adopts, or intends to adopt, this proposed

regulation, it may take the attendant flexibility into ac-

count, on remand, as pertinent to the manufacturers’ objec-

tions, even though the new regulation has been proposed

in a proceeding with a different docket number and cap-

tion.

3. Literature Sources

The principal source in the scientific literature used by

EPA, HEW’s “Atmospheric Emissions from the Manufac-

ture of Portland Cement“, is called into question by pe-

%3 See note 51 supra.

titioner on the ground that the test methods used to compile

the results of the study were at odds with those used by

EPA in its own tests.“ While counsel for EPA disclaims

reliance on the source, the study was cited in the EPA’s

Statement of Reasons, and EPA should address itself to

this contention on remand.

In this connection, a comment on the proper use of sci-

entific literature may be in order. If such literature is re-

lied upon, the agency should indicate which particular find-

ings of that literature are significant. A generalized refer-

ence, to a work as a whole, will avail the agency little if

a problem arises on judicial review. On remand, any find-

ings in the literature that are relied on by EPA should be

specifically indicated. The same procedure is contemplated

here as for the test data not submitted to the manufactur-

ers prior to promulgation of the rule, that there be oppor-

tunity for comment, and an explanation presenting the

EPA position on any challenge.“

* As to how results might be skewed by different sampling

methods, see note 90 supra, and Comments of Mr. Kreichelt

on the proposed rule, C.R. Tab VIII, item 27, at 2-5.

There is evidence in the record furnished by vendors of

emission control devices but not relied upon by the EPA to

support its standard that, with proper allowance for mal-

function problems, the standards can be met. By way of

comment to the proposed rule, Mr. R. E. Frey, Vice Presi-

dent, Mikro Pul Co., stated in a letter of September 20, 1971,

C.R. Tab V(e), that: “A properly applied fabric filter (or

bag house) will operate with no visible emission. Actual

measured outlet loadings are almost always below 0.02 grains

per cubic foot and often as low as 0.000 x grains per cubic

foot.“ This would of course be below the required .08 grains

per cubic foot standard, the converted measure of .30 Ib. per

ton of feed to the kiln.

Three letters were inserted into the record following our

June 1972 remand of this case, following the motion of in-

4. Opacity Standard

Apart from the standard directly regulating particulate

concentration, EPA has adopted an opacity standard which

provides that there shall be no discharge of particulate

matter from the kiln which is:“

Greater than 10 percent opacity, except that where

the presence of uncombined water is the only reason

for failure to meet the requirements for this subpara-

tervenor Medusa Corp. Mr. Jack C. Thomas, Sales Manager of

Rock Products Industry represented to Medusa that:

“We can and will guarantee that our Lurgi Electro-

static Precipitator will limit the effluent to less than .30

lbs. per ton of feed to the kiln. However, we cannot guar-

antee to meet this collection efficiency 100 per cent of

the time. During kiln start-up and upset conditions and

during possible malfunction, it is conceivable that the

oa would not be in compliance with the E.P.A.

Similar guarantees were offered by Rock Creek for fabric

filter bags.

Claims of capability to conform to the EPA standards were

also in letters to Medusa—though without mention of guar-

antees—from Buell, Division of Envirotech Corp., and Kaiser

Engineering. C.R. Tab X.

These claims by the vendors could not be responded to by

way of comment, since they were themselves produced as

comment, and can be considered on remand. We note, how-

ever, that if vendor representations were to be a principal

source of reliance by the agency, representations peculiarly

subject to considerations of self-interest, more might be re-

quired than mere comments. See American Airlines v. CAB,

123 U.S. App. D. C. 310, 318-319, 359 F.2d 624, 632-33 (1966)

(en banc), cert. denied, 385 U.S. 843 (1966). Compare In-

ternational Harvester, supra, slip op. at 22. Also see Kennecott

Copper supra, 149 U.S.App.D.C. at 235, 462 F.2d at 850:

“There are contexts however, contexts of fact, statutory frame-

work and nature of action, in which the minimum require-

ments of the Administrative Act may not be sufficient.”

96 § 60.62 (a) (2), 36 Fed. Reg. 24876 (1971).

graph, such failure shall not be a violation of this

section.

Opacity is defined by the regulation as “the degree to which

emissions reduce the transmission of light and obscure the

view of an object in the background.“ *

It may be, as EPA argues, that the opacity test is an

important enforcement tool,“ and that the results of an

opacity test, which is normally performed at some distance

from the plant by trained observers, offers a cheaper and

faster method of determining compliance than enforcement

of the particulate concentration standard.” However, it

is one thing to use a method of testing to observe possible

violations of a standard; it is another to constitute that

method as the standard itself. If the opacity test is to be

a standard, and if violations can result in enforcement ac-

tions without further testing, the standard must be con-

sistent with the statute and congressional intent.

The thrust of the manufacturers’ comments to EPA,

and repeated here, is that the opacity test is arbitrary—

that inspectors will be unable within any reasonable degree

of accuracy to determine whether permitted opacity is

10%.

The critical question is how accurate can opacity observa-

tions be. On this point we essentially have before us only

Id. at § 60.2(j).

See Comment of State of Maryland to the proposed rule:

“Such a prohibition is one of the most effective tools available

to state and local regulatory authorities.” C.R. Tab VIII, item

* Although the revised sampling methods of EPA may have

lowered the cost of testing for compliance, National Gypsum

Co. commented to the agency on the proposed rule that “the

cost of running a test by the proposed method on a single

baghouse ranges in the neighborhood of $10,000 to $15,000.

... Tab VIII, item 6.

1e “ 4,9 —

— — . —

the contentions of the parties. The manufacturers do point

to a test conducted for the National Center for Air Pollu-

tion Control (U.S. Dept. H.E.W.), where six trained smoke

inspectors evaluated a white training plume known to have

0% opacity. All six inspectors rated the plume at more

than 0% opacity and 3 evaluated it at more than 20%. A

plume known to be at 20% opacity was rated higher than

20% by 5 of the 6 inspectors (one rated it lower) and 2

of them rated it at almost 40%. Problems may also be

posed for deciding when opacity is due to water content

and when it is not.“!

The difficulty is that this test has the thrust of indicating

that opacity measurements are inherently inadequate, and

does not seem to be probative of the manufacturer’s quite

different claim, namely, that it is at the low ranges that

opacity tests become less reliable, and too unreliable to be

a legal standard.

On the other hand, EPA’s brief does nothing more than

point to the fact that many states have required that the

plumes from stack emissions conform to a specified per-

centage of opacity. We note, however, that the opacity

standard is at least 20% in the states cited, which corre-

sponds to No. 1 on the Ringelman Smoke Chart.“

100 See Optical Properties and Visual Effects of Smoke

Stack Plumes, Pub. Health Serv. Pub. 999-AP-30 (1967 Na-

tional Tech. Info. Serv. PB 174-705), at 28.

101 Compare State v. Fry Roofing Co., 495 P.2d 751, 757-58

(Ore. Ct. App. 1972).

102 See Arizona Rules and Regulations for Air Pollution, 1

BNA State Air Laws Environ. Reptr. (BNA Air) 311:0502

(40% for visible emission) ; Arkansas Air Pollution Control

Code, 1 BNA Air 316:0504 (20% for new equipment used in

a manufacturing process) ; California Health and Safety Code

§ 24242 (1967) (40% for aircraft discharge). Also see Con-

We think the HEW test adduced by petitioners, though

not decisive, suffices to require further consideration and

explanation by EPA on remand, and a showing on the

record that 10% opacity measurements can be made within

reasonable accuracy.“

V. Tue Sranparp or JupiciaL Review anp Conciusions

We are quite aware that the standards promulgated and

here under review are to be applied to new stationary

sources. It would have been entirely appropriate if the

Administrator had justified the standards, not on the basis

of tests on existing sources or old test data in the litera-

ture, but on extrapolations from this data, on a reasoned

basis responsive to comments, and on testimony from ex-

perts and vendors made part of the record. This course 4

was not followed here. Instead, the Administrator in his

statement of reasons relied on tests on existing plants and

the literature, which EPA counsel now discounts without

reference to other record support to take its place.

The Administrator’s objectives are laudable, but the

statute expressly requires, for the standards he promul- J

gates, that technology be achievable. This record reveals ;

a lack of an adequate opportunity of the manufacturers

to comment on the proposed standards, due to the absence

of disclosure of the detailed findings and procedures of the

tests. This was not cured following our previous October

1972 remand to the agency.

~— — Dee eh N

necticut Administrative Regs., 1 BNA Air 331.0513 (20% for

visible emissions); Delaware Administrative Regs., 1 BNA :

Air 336.0861 (20% for visible emissions). 1

103 We think Congress anticipated, as in the National Traf-

fic and Motor Vehicle Safety Act of 1966, that the standards

be “objective”, 15 U.S.C. 5 1392 (a), Otherwise “a manufac- 1

turer has no assurance that his own test results will be dupli-

cated in tests conducted by the Agency.” Chrysler Corp. v.

Dept. of Transportation, 472 F.2d 659, 675 (6th Cir. 1972).

977

We have identified a number of matters that require

consideration and clarification on remand. While we re-

main diffident in approaching problems of this technical

complexity, see International Harvester, supra, Slip. opin.

at 56, the necessity to review agency decisions, if it is to

be more than a meaningless exercise, requires enough

steeping in technical matters to determine whether the

agency “has exercised a reasoned discretion”. Greater Bos-

ton TV v. FCC (1), 143 U.S. App.D.C. 383, 392, 444 F.2d

841, 850, cert. denied, 403 U.S. 923 (1971). We cannot sub-

stitute our judgment for that of the agency, but it is our

duty to consider whether “the decision was based on a

consideration of the relevant factors and whether there

has been a clear error of judgment.” Citizens To Preserve

Overton Park v. Volpe, 401 U.S. 402, 416 (1971). Ulti-

mately, we believe, that the cause of a clean environment

is best served by reasoned decision-making. The record is

remanded for further proceedings not inconsistent with

this opinion.

So ordered

53a

United States Court of Appeals

No. 72-1073 September Term, 19 73

Portland Cement Association, and

Illinois Not-For-Profit Corporation,

Petitioner United States Court of Appecls

fer Be u d cer bre

OCT

William D. Ruckelshaus, Administrator, FILED 1 ms

Environmental Protection Agency 1

nespondent HUGH E KLINE

Medusa Portland Cement co.

Northwestern States Portland Cement co. Imtervenors

Before: ray, Senior Circuit Judge; Lewenthal and

Robb, Circuit Judges.

21211

The Clerk is directed to file petitioner’s lodged

petition for rehearing and on consideration of the petitions

for rehearing of petitioner (Portland Cement Association)

and intervenor (Northwestern States Portland Cement co.)

and of respondent's reply in opposition filed with respect

thereto, it is

ORDERED by the Court that the aforesaid petitions for

rehearing are denied.

Per Curiam

For the Court:

Braye U.

HUGH EB. KLINE

Clerk

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EXCERPTS FROM THE ADMINISTRATIVE

PROCEDURE Ar, TITLE 5 UNITED STATES CODE

§ 706. Scope of review.

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

(1) compel agency action unlawfully withheld or un-

reasonably delayed; and

(2) hold unlawful and set aside agency action, find-

ings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, priv-

lege, or immunity;

ity, or limitations, or short of statutory right;

(D) without observance of procedure required

law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the review-

ing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a party,

and due account shall be taken of the rule of prejudicial

error. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

EXCERPTS FROM THE CLEAN AIR ACT OF 1967

(84 Stat. 1705, et seq.)

§ 1857. Congressional findings; purposes of subchapter.

(b) The purposes of this subchapter are

(1) to protect and enhance the quality of the

Nation’s air resources so as to promote the public

health and welfare and the productive capacity of

its population;

* * * *

§ 1857c-6. Standards of performance for new stationary

sources.

(a) Definitions.

For purposes of this section:

(1) The term “standard of performance”

means a standard for emissions of air pol-

lutants which reflects the degree of emission

limitation achievable through the application

of the best system of emission reduction which

(taking into account the cost of achieving such

reduction) the Administrator determines has

been adequately demonstrated.

(2) The term “new source” means any sta-

tionary source, the construction or modifica- H

tion of which is commenced after the publica-

tion of regulations (or, if earlier, proposed

regulations) prescribing a standard of per-

formance under this section which will be ap-

plicable to such source.

(3) The term “stationary source” means any

building, structure, facility, or installation

which emits or may emit any air pollutant.

See ee ee oe.

(4) The term “modification” means any

physical change in, or change in the method of

operation of, a stationary source which in-

creases the amount of any air pollutant emit-

ted by such source or which results in the emis-

sion of any air pollutant not previously

emitted.

(5) The term “owner or operator” means

any person who owns, leases, operates, con-

trols, or supervises a stationary source.

(6) The term “existing source” means any

stationary source other than a hew source.

(b) Publication and revision by Administrator of list

of categories of stationary sources; inclusion of cate-

gory in list; proposal of regulations by Administrator

establishing standards for new sources within category ;

promulgation and revision of standards ; differentiation

within categories of new sources; issuance of informa-

tion on pollution control techniques; applicability to

new sources owned or operated by United States.

(1)(A) The Administrator shall, within 90 days after

December 31, 1970, publish (and from time to time there-

after shall revise) a list of categories of stationary sources.

He shall include a category of sources in such list if he de-

termines it may contribute significantly to air pollution

which causes or contributes to the endangerment of public

health or welfare.

(B) Within 120 days after the inclusion of a category of

stationary sources in a list under subparagraph (A), the

Administrator shall propose regulations, establishing Fed-

eral standards of performance for new sources within such

category. The Administrator shall afford interested per-

sons an opportunity for written comment on such proposed

regulations. After considering such comments, he shall

promulgate, within 90 days after such publication, such

standards with such modifications as he deems appropriate.

The Administrator may, from [time] to time, revise such

standards following the procedure required by this subsec- i

tion for promulgation of such standards. Standards of per- ö

formance or revisions thereof shall become effective upon !

promulgation. i

(2) The Administrator may distinguish among classes,

types and sizes within categories of new sources for the

purpose of establishing such standards.

(3) The Administrator shall, from time to time, issue in-

formation on pollution control techniques for categories of

new sources and air pollutants subject to the provisions of

this section.

— —ũ—4—[— 223222 5

(4) The provisions of this section shall apply to any new

source owned or operated by the United States.

(e) Prohibited acts.

After the effective date of standards of performance

promulgated under this section, it shall be unlawful for any

owner or operator of any new source to operate such source

in violation of any standard of performance applicable to

such source. (July 14, 1955, ch. 360, title I, § 111, as added :

Dec. 31, 1970, Pub. L. 91-604, § 4(a), 84 Stat. 1683.)

* * * *

§1857h-5. Administrative proceedings and judicial re-

view.

(b)(1) A petition for review of action of the Administra- :

tor in promulgating any national primary or secondary

ambient air quality standard, any emission standard under

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

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

a *

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

to be preseribed under section 1857f-1(b)(1) of this title),

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

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

title or any standard under section 1857-9 of this title may

be filed only in the United States Court of Appeals for the

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

trator’s action in approving or promulgating any imple-

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

1857¢-6(d) of this title, may be filed only in the United

States Court of Appeals for the appropriate circuit. Any

such petition shall be filed within 30 days from the date of

such promulgation or approval, or after such date if such

petition is based solely on grounds arising after such 30th

day.

§1857h-7. Policy review

(a) The Administrator shall review and comment in writ-

ing on the environmental impact of any matter relating to

duties and responsibilities granted pursuant to this chapter

or other provisions of the authority of the Administrator,

contained in any (1) legislation proposed by any Federal

department or agency, (2) newly authorized Federal proj-

ects for construction and any major Federal agency action

(other than a project for construction) to which section

4332(2) (C) of this title applies, and (3) proposed regula-

tions published by any department or agency of the Federal

Government. Such written comment shall be made public at

the conclusion of any such review.

EXCERPTS FROM THE NATIONAL

ENVIRONMENTAL POLICY AOT, 42 U. 8. C. § 4321

SUBCHAPTER I.—POLICIES AND GOALS

§ 4331. Congressional declaration of national environmental

policy

(a) The Congress, recognizing the profound impact of man’s ac-

tivity on the interrelations of all components of the natural environ-

ment, particularly the profound influences of population growth,

high-density urbanization, industrial expansion, resource exploita-

tion, and new and expanding technological advances and recogniz-

ing further the critical importance of restoring and maintaining en-

vironmental quality to the overall welfare and development of man,

declares that it is the continuing policy of the Federal Government,

in cooperation with State and local governments, and other con-

cerned public and private organizations, to use all practicable means

and measures, including financial and technical assistance, in a

manner calculated to foster and promote the general welfare, to cre-

ate and maintain conditions under which man and nature can exist

in productive harmony, and fulfill the social, economic, and other

requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this chapter, it is

the continuing responsibility of the Federal Government to use all

practicable means, consistent with other essential considerations of

national policy, to improve and coordinate Federal plans, functions,

programs, and resources to the end that the Nation may—

(1) fulfill the responsibilities of each generation as trustee

of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and

esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environ-

ment without degradation, risk to health or safety, or other un-

desirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects

of our national heritage, and maintain, wherever possible, an

environment which supports diversity and variety of individual

choice;

— ODN em oie ee

— nt

(5) achieve a balance between population and resource use

which will permit high standards of living and a wide sharing

of life’s amenities; and

(6) enhance the quality of renewable resources and approach

the maximum attainable recycling of depletable resources.

healthful environment and that each person has a responsibility to

contribute to the preservation and enhancement of the environment.

Pub.L. 91-190, Title I, § 101, Jan. 1, 1970, 83 Stat. 852.

§ 4332. Cooperation of agencies; reports; availability of in-

formation; recommendations; international and

national coordination of efforts

The Congress authorizes and directs that, to the fullest extent

possible: (1) the policies, regulations, and public laws of the United

States shall be interpreted and administered in accordance with the

policies set forth in this chapter, and (2) all agencies of the Federal

Government shall—

(A) utilize a systematic, interdisciplinary approach which

will insure the integrated use of the natural and social sciences

and the environmental design arts in planning and in decision-

making which may have an impact on man’s environment;

(B) identify and develop methods and procedures, in consul-

tation with the Council on Environmental Quality established

by subchapter II of this chapter, which will insure that pres-

ently unquantified environmental amenities and values may be

given appropriate consideration in decisionmaking along with

economic and technical considerations ;

for legislation and other major Federal actions significantly af-

fecting the quality of the human environment, a detailed state-

ment by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be

avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhancement

of long-term productivity, and

(v) any irreversible and irretrievable commitments of re-

sources which would be involved in the proposed action

should it be implemented.

Prior to making any detailed statement, the responsible Fed-

eral official shall consult with and obtain the comments of any

Federal agency which has jurisdiction by law or special exper-

tise with respect to any environmental impact involved. Copies

of such statement and the comments and views of the appropri-

ate Federal, State, and local agencies, which are authorized to

develop and enforce environmental standards, shall be made

available to the President, the Council on Environmental Quali-

ty and to the public as provided by section 552 of Title 5, and

shall accompany the proposal through the existing agency re-

view processes;

(D) study, develop, and describe appropriate alternatives to

recommended courses of action in any proposal which involves

unresolved conflicts concerning alternative uses of available re-

sources;

(E) recognize the worldwide and long-range character of en-

vironmental problems and, where consistent with the foreign

poliey of the United States, lend appropriate support to initia-

tives, resolutions, and programs designed to maximize interna-

tional cooperation in anticipating and preventing a deeline in

the quality of mankind’s world environment;

(F) make available to States, counties, municipalities, insti-

tutions, and individuals, advice and information useful in re-

storing, maintaining, and enhancing the quality of the environ-

ment;

(G) initiate and utilize ecological information in the plan-

ning and development of resource-oriented projects; and

(H) assist the Council on Environmental Quality established

by subchapter II of this chapter.

Pub.L. 91-190, Title I, § 102, Jan. 1, 1970, 83 Stat. 853.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.