Petition for Writ of Certiorari — Kennecott Copper Corp. v. Train

IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

No 75-1029

KENNECOTT COPPER CORPORATION, Petitioner,

v.

Russeiy E, Train, Administrator of the

Environmental Protection Agency, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFRED V. J. PRATHER

J. WintiaM DoonirrLe

PRATHER SERGER DOOLITTLE

FARMER & EWING

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

Attorneys for Petitioner

Kennecott Copper Corporation

January 1976

- - - EE er

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D, C,

TABLE OF CONTENTS

Page

CN COI c.g 5's a's a he Ghee earn ea ee eek ae 1

II ass kas 5 cA Eko Whas Skanes ae ebeenrean 2

GURNEE TUNNUOD oii ci icc a dees antdaesacees 2

Srarvrory Provisions INVOLVED ........ 000.0 6000e0. 2

TATOMUNT GF TE CARE on 55k cece es decinwwanann 3

Reasons Fon GRANTING THE WRIT 2... 2.0.06. cc cc eeess 7

I. The Decision Below Is in Conflict With This

Court’s Recent Interpretation of the Clean Air

BG ce iva s Reb h cn oak 6d dada enh eeeeass 7

Il. The Court Below Decided an Important Issue of

Kederal Law That Should Be linally Resolved

a: tS ee ee peed yee 12

ek | Peer Te er ee eT Pee Per Ty Te ery eee 14

APORMOEE in sc ccanacs ee ccnecesseknanucsventaesees la

TABLE OF AUTHORITIES

CASES:

Big Rivers Elec. Corp. ve RPA, 525 F.2d 16 (6th Cir.

1975), certiorart pending (Nos. 75-774, 75-787, O.T.

SORE | 4:5 can 050d Pius chun Cones eeehes cee eaeen 138

Buckeye Power, Inc. v, EPA, 481 F.2d 162 (6th Cir.

BOOMER REA RS a6 nob AS ee Gas k tae Res 12

Indiana & Mich, Rlec. Co. ve EPA, 509 F.2d 889 (7th

Ca MSE Gia vs doce or bks Abd a on ha ee ROA anes 12

Natural Resources Defense Council, Inc. v. EPA, 489

F.2d 390 (Sth Cir, 1974), reversed in part, 421 U.S.

res Were ee ete ee a ee On Se 13

Train v. Natural Resources Defense Council, Inc., 421

SE CED | vd c1s 65 due oe eke eee ka ks passim

BLURRED COPY

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il Table of Authorities Continued

Page

STATUTES:

Clean Air Act, as amended:

Section 109, 84 Stat. 1679, 42 U.S.C. 1857e-4 .... 3

Section 110, 84 Stat. 1680, 42 U.S.C. 1857¢-5 . passim

Section 307, 84 Stat. 1707, 42 U.S.C. 1857h-5 .... 06

IN THE

Supreme Court of the United States

OcToBerR TERM, 1975

No.

KENNECOTT CopPpER CorPORATION, Petitioner,

V.

Russevt E, Tray, Administrator of the

Environmental Protection Agency, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kennecott Copper Corporation respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for

the Ninth Cireuit entered in this proceeding on No-

vember 28, 1975.

OPINION BELOW

| The opinion of the Court of Appeals is not yet re-

ported. A copy of the slip opinion appears in the

Appendix hereto.

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BLEED THROUGH

2

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Cireuit was entered on November 28, 1975. This peti-

tion for a writ of certiorari was filed within ninety

days of that date. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether, under the provisions of the Clean Air Act,

the Administrator of the Environmental Protection

Agency may lawfully disapprove a State implementa-

tion plan and substitute his own Federal plan, on the

ground that, although the State plan provides for the

attainment and maintenance of the national ambient

air quality standards, it does so by reliance on emis-

sion control strategies other than the one preferred by

EPA,

STATUTORY PROVISIONS INVOLVED

Section 110(a)(1) of the Clean Air Act, as amended,

84 Stat. 1680, 42 U.S.C. 1857¢-5(a) (1), requires each

State ‘‘to adopt and submit to the Administrator * * *

a plan for implementation, maintenance and enforce-

ment of’? every primary and secondary national am-

bient air quality standard within the State. Section

110(a) (2), 84 Stat. 1680, 42 U.S.C. 1857¢-5(a) (2), pro-

vides in pertinent part:

(2) The Administrator shall, within four

months after the date required for submission of

a plan under paragraph (1), approve or dis-

approve such plan or each portion thereof. The

Administrator shall approve such plan, or any

portion thereof, if he determines that it was

adopted after reasonable notice and hearing and

that—

3

(A)(i) in the case of a plan implementing a

national primary ambient air quality standard,

it provides for the attainment of such primary

standard as expeditiously as practicable but

(subject to subsection (e)) in no ease later than

three years from the date of approval of such

plan (or any revision thereof to take account of

a revised primary standard); and (ji) in the

case of a plan implementing a national second-

ary ambient air quality standard, it specifies a

reasonable time at which such secondary stan-

dard will be attained ;

(1B) it ineludes emission limitations, scehed-

ules, and timetables for compliance with such

limitations, and such other measures as may be

necessary to insure attainment and maintenance

of such primary or secondary standard, inelud-

ing, but not limited to, land-use and transporta-

tion controls;

* * *

STATEMENT OF THE CASE

One of the air pollutants for which the Administrator

of the Environmental Protection Agency has estab-

lished national primary and secondary ambient air

quality standards pursuant to Section 109 of the Clean

Air Act, as amended, 84 Stat. 1679, 42 U.S.C. 1857¢-4,

is the odorless, invisible gaseous substance, sulfur diox-

ide. Among those man-made processes that produce

large volumes of this gas is the smelting of copper,

which is generally derived from a sulfide ore. A major

source of sulfur dioxide emissions in the State of

Nevada is the copper smelter owned and operated by

petitioner Kennecott Copper Corporation in the east-

ern portion of the State.

In accordance with Section 110 of the Act, 84 Stat.

1680, 42 U.S.C. 1857¢-5, the State of Nevada adopted

4

an implementation plan for the control of sulfur diox-

ide emissions from Kennecott’s smelter. This plan

required Kennecott to employ control measures that

would reduce stack emissions of sulfur dioxide by 60

percent of the sulfur contained in the input ore. Aided

by enhanced atmospheric dispersion from a recently

completed 750-foot smokestack, this emission reduc-

tion would enable the smelter to achieve compliance

with national ambient air quality standards for sulfur

dioxide on all but a few days of the year.

The days on which the 60-percent emission redue-

tion would be insufficient are those on which unusual

meteorological conditions prevent normal dispersion

of sulfur dioxide, causing ground-level concentrations

to exceed short-term standards. On such occasions,

emissions must be reduced still further by curtailing

production or varying operation of the smelter in some

way, such as feeding it standby supplies of lower-sul-

fur ore. By means of a computerized monitoring sys-

tem, the buildup of these adverse atmospheric condi-

tions can be -redicted with sufficient reliability to en-

able the smelte. -perator to take the steps necessary to

avoid violating the short-term standards. The Nevada

plan required Kennecott to install and implement such

a system, sometimes referred to as a ‘‘supplementary

control system’? (or ‘intermittent control system’’).

The State of Nevada duly submitted its plan to EPA

for approval pursuant to Section 110(a). On Febru-

ary 6, 1975, EPA announced that it was disapproving

key portions of Nevada’s plan, and it promulgated sub-

stitute provisions in their stead, 40 Fed. Reg. 5508,

55911. EPA did not question that the emission redue-

tions provided for in the State plan would enable Ken-

necott to achieve compliance with applicable standards.

5

Indeed, EPA’s plan was in most respects substantially

the same as the State’s plan; it required Kennecott to

reduce stack emissions by 60 percent and to make fur-

ther reductions through use of a supplementary con-

trol system whenever the short-term standards would

otherwise be violated.

There was, however, one major difference between

EPA’s plan and Nevada’s. EPA found the Nevada

plan ‘‘unapprovable”’ because its strategy for achiev-

ing the national standards depended for the indefinite

future on Kennecott’s use of a tall stack and applica-

tion of a supplementary control system. It is EPA’s

position that such measures may not be a permanent

part of a State’s control plan because they do not ef-

fect ‘constant emission reduction,’? which is EPA’s

‘*preferred strategy for attaining and maintaining the

standards”? (40 Fed. Reg. at 5510)." At the same time,

EPA recognized that the application of ‘constant

emission reduction’? technology capable of achieving

the national standards at Kennecott’s smelter is not

now ‘‘economically feasible’? ((bid.).

KPA estimated that, to achieve the national stan-

dards without reliance on a tall stack and a supple-

mentary control system, Kennecott would have to re-

duce stack emissions by some 86 percent. Accordingly,

EPA’s substitute plan added the requirements (a)

that, at such time as suitable ‘‘constant emission re-

duction’’ equipment becomes available, it must be ap-

plied to Kennecott’s smelter to reduce emissions by

86 percent, and (b) that Kennecott must pursue ‘‘a

'EPA’s thesis is that, while tall stacks reduce ground-level con-

centrations, they do not of themselves reduce emissions; and, while

supplementary control systems bring about temporary reductions

in emissions, they do not do so continuously.

RLURRED COPY

6

’

research program to develop and apply’? such equip-

ment (40 Fed. Reg. at 5516). In the meantime, Ken-

necott would be permitted to operate exactly as it would

have nnder the State plan, subject to EPA’s approval

and periodie review of its research and development

program and the operation of its supplementary con-

trol system.

Because Kennecott’s Nevada smelter is too marginal

economically to justify the additional cspenditures

and open-ended commitments contemplated by EPA

(see 40 Fed. Reg. at 5509), Kennecott sought judicial

review of the agency's substitute plan. Within thirty

days after promulgation of the regulations containing

the Federal plan, Kennecott filed its petition for re-

view of the Administrator’s action in the United States

Court of Appeals for the Ninth Circuit, pursuant to

Section 307(b) (1) of the Clean Air Act, 84 Stat. 1707,

42 U.S.C. 1857h-5(b) (1). The State of Nevada inter-

vened in support of Kennecott’s position. In its argu-

ment to the court, Kennecott contended that, where a

State implementation plan provides for attainment

and maintenance of the national standards, Section

110(a)(2) of the Act does not authorize the Adminis-

trator to disapprove the State’s choice of emission

control strategies.

On November 28, 1975, the Court of Appeals ren-

dered its decision. The court coneluded that Section

110(a) (2) (B) expresses a ‘‘preference’’ that, to the

extent possible, air quality standards be met by ‘‘emis-

sion limitations.’’ To qualify as an ‘‘emission limita-

tion,’’ the court felt, a control measure must effect re-

ductions in emissions and must do so continuously.

Finding that the tall stack and supplementary control

system strategies do neither, the court held that a

7

State implementation plan cannot rely on those strat-

egies to meet air quality standards when suitable

‘‘constant emission reduction’? measures are or be-

come available. On that basis, the court affirmed the

Administrator’s disapproval of the Nevada plan and

his promulgation of a substitute Federal plen.

REASONS FOR GRANTING THE WRIT

This Court should exercise its discretionary juris-

Ciction to review the decision of the Court of Appeals

in this case. The opinion below interprets a Federal

statute in a manner directly conflicting with this

Court’s recent decision in Train vy. Natural Resources

Defense Council, Ine., 421 U.S. 60 (1975). Further-

more, the court below has decided an important issue

of Federal law that should be finally resolved by this

Court.

I. The Decision Below Is in Conflict with This Court’s Recent

Interpretation of the Clean Air Act.

The court below held that, although the Nevada im-

plementation plan provides for the attainment and

maintenance of applicable air quality standards, the

Administrator may nevertheless disapprove that plan

because he disagrees with the State’s choice of emis-

sion control strategies. That holding is squarely in

conflict with this Court’s landmark decision, rendered

ouly nine months ago, in Train v. NRDC, supra. In

that case, on the basis of an exhaustive analysis of the

language and legislative history of the Clean Air Act,

the Court concluded that Section 110(a)(2) of the

Act mandates the approval of any State plan that pro-

vides for the achievement of national standards and

meets the minimum conditions laid down in Section

110.

8

The Court’s opinion sets forth its interpretation of

Section 110(a) (2) simply and forcefully:

Under § 110(a) (2), the Agency is required to ap-

prove a state plan which provides for the timely

attainment and subsequent maintenance of ambient

air standards, and which also satisfies the section's

other general requirements. [421 U.S. at 79; em-

phasis in original. ]

Recognizing that one of these ‘other general require-

ments’? is that a plan include ‘temission limitations”

(Section 110(a) (2) (B) ), the Court went on to declare:

The Act gives the Agency no authority to question

the wisdom of a State’s choices of emission limita-

tions if they are part of a plan which satisfies the

standards of § 110(a) (2) * * *. Thus, so long as the

ultimate effect of a State’s choice of emission limi-

tations ts compliance with the national standards

for ambient air, the State is at liberty to adopt

whatever mix of emission limitations it deems best

suited to its particular situation, [Ibid.; emphasis

supplied.]

This Court’s interpretation of Section 110(a)(2)

would be seriously undercut if the decision of the lower

court is allowed to stand. In essence, what that court

did was to construe the term ‘temission limitations’? in

such a way as to give the Administrator of EPA a sub-

stantial veto over the States’ decisions as to control

strategy. It held that, in requiring each State plan to

include *temission limitations,’’ Seetion 110(a) (2) (B)

really meant ‘constant emission reduction’? measures,

and that a State plan must rely on such measures to the

extent that EPA considers them ‘teconomically fea-

sible.’’ Since the lower court also endorsed EPA’s

narrow view as to what qualify as ‘‘constant emission

9

reduction’? measures, its decision would hand EPA

pervasive control over the States’ choices of emission

limitations.

The Court will search the lower court’s opinion in

vain for any explanation as to how either the Act or

its legislative history justifies a holding that ‘‘emission

limitations’’ are confined to measures that reduce emis-

sions and that do so continuously. Such a restrictive

definition is plainly inconsistent with this Court's de-

scription of ‘‘emission limitations’ in Train v. NRDC,

supra:

‘Ti ] mission limitations’? * * * are regulations of

the composition of substanecs emitted into the am-

bient air from such sources as power plants, service

stations, and the like. They are the specific rules

to which operators of pollution sources are sub-

ject, and which if cuforced should result in am-

bient air which meets the national standards, {421

U.S. at 78; emphasis supplied.]

Least of all can any support for the lower court’s con-

trived definition be found by reference to any reputable

dictionary or to ‘normal usage’’ (see 421 U.S. at 89).

The lower court’s departure from this Court's

interpretation of the Act is all the more egregious for

its having uneritically embraced EPA‘s notions as to

What measures constitute ‘constant emission reduc-

tion’’ measures. The court opined that neither a tall

stack nor a supplementary control system ‘tassures a

reduction in the quantity of the pollutant eventually

emitted’? (Appendix, p. 12a, infra). This approach

ignores the fact that, in the Nevada plan, those mea-

sures were an integral part of an emission control strat-

egy that included a continuous GO percent reduction in

emissions (supplemented by additional reductions as

10

required), and that these reduetions would assure com-

pliance with applicable national standards. Thus, if

Nevada's plan does not include *temission limitations”

that produce ‘constant emission reductions,”’ it is diffi-

cult to visualize one that would.

The lower court’s construction of Section 110(a) (2)

would frustrate the will of Congress as perceived by

this Court in at least three important ways. First, as

we have seen, it would give EPA dominion over the

setting of emission limitations far bevend anything

intended by the legislature. This Court stated in Train

Vv. VNRDC, supra, that EPA Sis relegated by the Act to

a secondary role in the process of determining and

enforcing the specilic, souree-by-source emission limi-

tations which are necessary if the national standards

it has set are to be met”? (421 U.S. at 79). Phe decision

of the lower court would promote EPA to the leading

role in that vital process without the sanction of Con-

gress.

Second, and by the same token, the lower court’s

interpretation would sharply diminish the diseretion

the States were given by the Act to decide what emis-

sion control strategies best meet their loeal needs. In

Train ve NRDC, supra, this Court stated its belief that

Congress, consistent with its deelaration that,

‘Each State shall have the primary responsibility

for assuring air quality’? within its boundaries,

§ 107(a), left to the States considerable latitude in

determining specifically how the standards would

be met. [421 U.S. at 86-87.)

If all emission limitations must produce ‘constant

emission reductions”’ (as defined by EPA), and if all

implementation plans must rely on such measures to

11

the extent that EPA considers their use ** feasible.”

and if other measures (such as tall staeks and supple

mentary control systems) on whieh EPA frowns tis

not be relied upon, then the States are left with precious

little ‘latitude,’ indeed, in developing their own «rat

gies for meeting air quality standards.

Third, the lower court’s decision would wrt

nology-forcing poliey into Section TOCay ot) that wo.

never intended by Congress. In Train vy. NBII aye

this Court taxed the Fifth Cirenit for having fatled te

consider ‘‘that so long as the national standards are

being attained and maintained, there is no basis in the

present Clean Air Act for forcing further technologi-

eal developments’? (421 U.S. at 91). That preeept

could hardly be more literally applieable than it is to

the present ease. Although Nevada's control strategy

would concededly result in the attainment and main-

tenance of national standards, Kennecott must never-

theless conduct an EPA-supervised research program

to develop improved emission-control technology, Much

as EPA may wish to impose uch technology-forcing

requirements, they find ‘no basis in the present Clean

Air Act.”’

There is, in short, no way in which the decision of

the court below can be reconciled with this Court’s au-

thoritative interpretation of Section 110(a)(2) in

Train ve. NRDC, supra. The Court should grant a writ

of certiorari for the purpose of resolving this clear

conflict.

? There is also a substantial conflict between the decision below

and several decisions of other courts of appeals, one of which is

now before this Court for review. The lower court’s decision that

State plans must rely on ‘‘constant emission reduction’? measures

to the extent ‘‘economically feasible’? (see Appendix, p. 2a, infra)

12

II. The Court Below Decided an Important Issue of Federal

Law that Should Be Finally Resolved by This Court.

The provision that the decision below interprets—

Section 110(a)(2) of the Clean Air Act—is one of the

most significant provisions of that important statute.

In setting forth the minimal elements that a State

implementation plan must include to gain Federal

approval, Section 110(a)(2) plays a erucial part in

defining the respective roles of State and Federal au-

thorities in the common effort to achieve clean air. Re-

gardless of whether the lower court’s interpretation of

that provision is correct, there can be no question that

it alters the basic distribution of pollution-control re-

sponsibilities as between the State and Federal Gov-

ernments. On that basis alone, the decision below

should be reviewed by this Court.

Moreover, the decision of the court below has prac-

tical implications far transcending the particular facts

of the present case. The court’s holding that ‘‘con-

stant emission reduction’? measures must be used to

the extent available—even where not needed to assure

compliance with national standards—would, if gener-

necessarily assumes that EPA will consider economic feasibility in

deciding whether to approve a plan under Section 110(a). How-

ever, other courts have held that economic and technological feasi-

bility are not proper factors for consideration at the approval/

disapproval stage, ¢.g., Indiana d Mich. Elec. Co. v. EPA,

509 F.2d 839, 844 (7th Cir. 1975); Buckeye Power, Inc. v. EPA,

481 F.2d 162, 173 (6th Cir. 1973), and EPA has taken the position

before this Court that ‘‘the mandatory wording of the statute in-

dicates that feasibility considerations are irrelevant under See-

tion 110(a)(2) * * *,? Respondent’s Brief, p. 16, in Union Elec.

Co. v. EPA, No. 74-1542. (Oct. Term 1975); see also Petition for

Writ of Certiorari in EPA vy. Duquesne Light Co., No. 75-736

(Oct. Term 1975).

13

ally applied, tremendously increase pollution-control

costs for American industry, especially in the metal

smelting and electric power sectors. EPA itself has

acknowledged that the issue presented by this case is

‘fone that will have broad national significance’’ (Re-

spondent’s Brief, p. 7, Kennecott Copper Corp. v.

Train, 9th Cir. No. 75-1335).

Finally, the essential question presented here is one

that is bound to recur until it is finally put to rest by

this Court. It has already arisen in two other circuits,

see Natural Resources Defense Council, Inc. v. EPA,

489 F.2d 390 (5th Cir. 1974), reversed tn part, 421 U.S.

60 (1975); Big Rivers Elec. Corp. v. EPA, 523 F.2d

16 (6th Cir. 1975). Petitions for a writ of certiorari

to review the latter decision have been filed by a group

of private electric power utilities (No. 75-774, Oct.

Term 1975) and by the Tennessee Valley Authority

(No. 75-787, Oct. Term 1975) and are still pending

before the Court. There is every reason to expect that

further efforts will be made in still other circuits to

obtain relief from EPA’s ‘‘constant emission redue-

tion’’ policy.

Thus, even if the lower court’s decision were not in

conflict with this Court’s opinion in Train v. NRDC,

supra, it would be one that this Court should review.

It involves an issue that is important to the adminis-

tration of a key Federal statute, an issue that has broad

significance for American industry, an issue that will

continue to arise until it is definitively resolved. The

Court should grant a writ of certiorari to settle this

question once and for all.

14

CONCLUSION

For the reasons set forth herein, a writ of certiorari

should issue to review the judgment and opinion of the

United States Court of Appeals for the Ninth Circuit.

Respee‘fully submitted,

ALFRED V. J. PRATHER

J. WILLIAM DooLItTLe

PRATHER SEEGER DOOLITTLE

FarMer & EWInG

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

Attorneys for Petitioner

Kennecott Copper Corporation

January 1976

APPENDIX ]

a

4

Sa ose

rme?repimmMmMnMoaonrere f* A~’\ rox.

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kenxnecotr Copper CorPoRATION, 7

Petitioner,

bas = | No. 75-1335

Russett FE. Trars, Administrator of the En-

vironmental Protection Agency,

Respondent. OPINION

a

{ November 28, 1975]

On Petition for Review of an Action of the Adminis‘ rator

of the Environmental Protection Agency

Before: TUTTLE,* KOELSCH, and BROWNING,

Circuit Judges.

BROWNING, Circuit Judge:

Kennecott Copper Corporation’ petitions for review of

an order of the Environmental Protection Ageney (EPA)

rejecting a portion of the State of Nevada’s implementation

plan under the Clean Air Act? relating to control of sulfur

dioxide (SOz), and substituting provisions formulated by

EPA. The problem arises from a single source of SO:

* Honorable Elbert Parr Tuttle, Senior United States Circuit

Judge, United States Court of Appeals for the Fifth Cireuit,

sitting by designation.

'The State of Nevada intervened in support of Kennecott.

242 U.S.C. § 1857 et seq. Jurisdiction of this court is under 42

U.S.C. $1857h-5(b)(1) (regarding petitions for review of orders

of the administrator promulgating plans under § 1857e-5(c)).

wrmrieimmmcnhrml soy row

2a

emissions in Nevada—Kennecott’s copper smelter at Me-

Gill in White Pine County.’

EPA based its order upon an interpretation of the Clean

Air Act which requires that national air quality standards

be met by continuous emission limitations to the maximum

extent possible, and that intermittent controls and disper-

sion systems be used only when continuous emission con-

trols are not economically feasible. This court denied

Kennecott’s request for a temporary injunction against

enforcement of the substitute plan promulgated by HPA

but expedited Kennecott’s appeal. We aflirm EPA’s order,

8 or those not acquainted with the copper smelters’ prob-

lem of controlling sulfur dioxide emissions, a few facets will

help put the matter in perspective[.] Most eopper produced

in the U.S. is obtained from sulfide ores. The average cop-

per concentrate contains about one ton of sulfur for each ton

of copper, and in the smelting process this sulfur is driven

off, largely in the form of sulfur dioxide. Each ton of sulfur

produces two tons of sulfur dioxide which is emitted in gas

streams of varying concentrations.

Muth, Origins and Current Status of Sulfur Oride Emission Stand-

ards for Nonferrous Smelters, reprinted in Implementation of the

Clean Air Act Amendments of 1970, Hearings before the Sub-

comm, on Air & Water Pollution of the Senate Comm. on Public

Works, 92d Cong., 2d Sess., at 553 (1972) [hereinafter cited as 1972

Oversight Hearings].

About 90% of the sulfur dioxide is captured by a smelter’s gas

collection system and is vented into the atmosphere through smoke-

stacks. The remaining approximately 10% escapes the smelter

as ‘“‘fugitive emissions.’’ See Brief of Petitioner Kennecott at

5n.1.

Senator Eagleton explained the importance of sulfur oxide emis-

sions from copper smelters as follows:

In Clean Air Act implementation, the copper industry has

a significant role. Smelters annually pour 4 million tons of

sulfur oxide (SO,) [sic] into the atmosphere. The SO. from

copper smelters constitutes one-ninth of the total SOs problem

with steam generators for electric power the largest source

SO. pollution—20 million tons annually. SO», causes about

$8.5 billion damages annually.

1972 Oversight Hearings, supra at 435.

3a

I

Section 109 of the Clean Air Act, 42 U.S.C, § 1857c-4,

requires EPA to promulgate national primary and second

air quality standards.* Section 110 of the Act, 42 U.S.C.

§ 1857¢-5, applicable to existing sources of pollutants such

as Kennecott’s McGill smelter,® provides that the states

must devise plans to implement, maintain, and enforce

these national standards. HPA must approve state imple-

mentation plans if they are adopted after reasonable notice

and hearing, and meet other specified requirements. EPA

must disapprove any state plan that does not comply with

the statute, and propose and adopt a plan of its own, 42

U.S.C, § 1857¢-5(¢) (1).

EPA approved the provisions of Nevada’s implementa-

tion plan relating to control strategy except those involv-

ing control of SOs at Kennecott’s MeGill smelter, the sole

stationary source of this pollutant in the Nevada Intrastate

Air Quality Control Region.6 Nevada submitted an

amended plan.’ EPA rejected the state’s amendments,

and proposed,* and eventually adopted, a plan of its own.

4The ‘‘primary standard’’ fixed by EPA is that ‘‘requisite to

protect the public health.”’ 42 U.S.C. § 1857¢-4(b) (1). The ‘‘see-

ondary”’ standard ‘shall specify a level of air quality [which] is

requisite to protect the public welfare from any known or antici-

pated adverse effects associated with the presence of [an] air

pollutant in the ambient air.’’ 42 U.S.C. § 1857e-4(b) (2).

* The principal question presented in this case would not arise

if the MeGill smelter were a proposed facility rather than an exist-

ing one. Section 111 of the Clean Air Act, 42 U.S.C. § 1857c¢-6,

provides that a new source of pollutant emissions must utilize the

best available technology to reduce emissions without regard to air

quality standards.

637 Fed. Reg. 10879 (May 31, 1972).

739 Fed. Reg. 38104-05 (Oct. 29, 1974).

87d.

®40 Fed. Reg. 5511 (Feb. 6, 1975).

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_-s F= =o apes tem et 8 ee 8

ta

The amended Nevada plan provided for a 60 percent

reduction of SOz emissions from the MeGill smelter by in-

stallation of a plant to convert SOz to sulfuric acid. When

weather conditions are so adverse that the 60 percent re-

duction in emissions resulting from operation of the acid

plant would not be sufficient to maintain national air quality

standards, the Nevada plan provided for reducing the level

of production at the smelter.

KPA rejected the Nevada plan on the ground that an

86 percent reduction of SOz emissions from the MeGill

smelter was required to achieve air quality standards, EPA

recognized that it was not presently economically feasible

to install an acid plant or other constant emission control

that would reduce SOz emission from the MeGill smelter

more than the 60 percent contemplated by the Nevada plan.

The EPA plan therefore provided that, as an interim

measure, Kennecott might use continuous emission redue-

tion technology capable of reducing emissions by 60 per-

cent, together with such other controls (including reducing

production and use of a tall stack) as might be needed to

maintain national air standards.'’? However, EPA’s plan

also provided that, until full compliance with national air

quality standards is achieved entirely by means of continu-

ous emission reduction,'’ Kennecott must undertake a re-

search program to improve continuous emission control

technology,’ and must adopt such improved technology

as it becomes available for use at the MeGill smelter on an

economically feasible basis.’®

1040 C.FLR. § 52.1475(e) (7) ; 40 Fed. Reg. 5515 (Feb. 6, 1975).

140 CLF.R. § 52.1475(e) (15) ; 40 Fed. Reg. 5517 (Feb. 6, 1975).

1240 C.RLR. § 52.1475(e) (13) & (15) (i) (b) ; 40 Fed. Reg. 5516

& 5517 (Feb. 6, 1975).

13JTn the preamble to its Nevada SO, regulations EPA stated:

[T]he selective use of Supplementary Control Systems (sys-

tems which limit pollutant emissions during periods when

meteorological conditions are conducive to ground level .con-

5a

Kennecott’s basic position is that EPA is not suthor-

ized to require continuous emission reduction techniques

in preference to intermittent controls or other methods for

dispersion, or dilution, of pollutants. Kennecott contends

that EPA must approve a state implementation plan that

provides for any combination of continuous emission con-

trols and alternative control systems devised by the state,

so long as the state plan will attain and maintain national

air quality standards within the statutory time periods.

This view of the statute underlies Kennecott’s opposi-

tion to HPA’s requirement that Kennecott engage in re-

search to develop and apply constant emission control tech-

nology."* It is also the principal source of Kennecott’s

centrations in exeess of the National Ambient Air Quality

Standards) to attain and maintain the ambient standards

is consistent with the Clean Air Act when the only alterna-

tives are permanent production curtailment, shutdown, or

delays in the attainment of the national standards. .

* * * * *

EPA will approve such measures as intermittent production

curtailment and use of dispersion techniques, including tall

stacks, as an addition to available constant control measures,

until such time as the treatment of weak gas streams can be

accomplished through reasonable retrofit control techniques.

Evaluation of the availability of constant control techniques

which may be developed in the future will be made using the

same criteria as were used in developing these regulations.

Namely, [Supplementary Control Systems] will continue to

be allowed where permanent production curtailment, shut-

down or delays in attainment of national standards are the

only other alternatives.

40 Fed Reg. 5508, 5510 (Feb. 6, 1975).

“4 This is the only ground upon which Kennecott challenges

EPA’s requirement that Kennecott undertake a research program

to develop improved continuous emission control technology and

adopt such technology when it is economically practicable. Kenne-

cott does not argue, for example, that even if EPA may require

use of continuous emission reduction controls in preference to in-

termittent controls or controls that dilute pollutants, EPA is

nonetheless limited to imposing requirements that are practicable

BLURRED COPY

6a

objection to EPA’s determination that an 86 percent reduc-

tion in SOz emissions from the MeGill smelter is required

to meet national air quality standards. EPA’s calculation

rests upon measurements made prior to the installation of

a new 750-foot tall smokestack at McGill. Kennecott sub-

mitted data to EPA indicating that the new tall stack

resulted in a 92 percent decrease in ground level SOs con-

centrations.> EPA refused permanent credit for this re-

duction because, in EPA’s view, the statute requires use of

continuous emission reduction technology, as opposed to

dispersion techniques, whenever economically feasible.’®

in light of the state of the art, and of the economy, when the im-

plementation plan is promulgated. Kennecott appears to concede

that if EPA can require that continuous emission reduction con-

trols be used so far as practicable, EPA may also impose rea-

sonable conditions to assure the development and adoption of

such controls in the future. Nor does Kennecott argue that the

research effort required by EPA is an unreasonable one; nor could

it, since the nature and scope of the program has yet to be de-

fined.

40 Fed. Reg. 5509 (Feb. 6, 1975) (col. 3).

1® EPA apparently allows full credit for the diluting effect of

smokestacks in existence before the first implementation plans

were filed in January 1972. For stacks built after that date,

but before the decision in Natural Resources Defense Council, Ine.

v. Train, 489 F.2d 390 (Sth Cir. 1974), EPA allows credit for the

effect of a stack no greater than two and a half times the height

of the facility and nearby obstructions. See Air Programs Office,

EPA, Region IV, Evaluation of the Georgia Control Strategy,

June 21, 1974, revised Mar. 31, 1975, at 2-3; Brief of Respondent

at 41-42. Kennecott was given credit for the dispersion effect of

a stack two and a half times the height of its McGill smelter. The

lawfulness of this allowance is not challenged and is not before us.

We also need not consider whether EPA acted lawfully in allowing

full credit for the actual dispersal effect of tall stacks built before

the initial implementation plans were filed. The considerations

that might justify these exceptions to the general requirement

that emission reduction techniques be used so far as practicable

are not applicable to Kennecott’s new stack at McGill.

Kennecott also challenges EPA’s calculation of the percentage

reduction in emissions required at McGill because EPA used a

7a

II

EPA bases the requirement of constant emission con-

trols upon section 110(a)(2)(B) of the Clean Air Act, 42

U.S.C. § 1857e-5(a)(2)(B)."" This subsection provides

that EPA shall approve a state implemention plan if ‘‘it

includes emission limitations, schedules, and timetables for

compliance with such limitations, and such other measures

as may be necessary to insure attainment and maintenance

of such primary or secondary standard, including, but not

limited to, land-use and transportation controls; ...’’ (em-

phasis added).

‘linear rollback method’’ which EPA itself had labeled inappro-

priate in some circumstances. As we understand the record, the in-

adequacy acknowledged by EPA is that the method may not take

account of higher levels of pollution that occur at ground points

other than those at which monitoring stations are located. This

deficiency favors the pollutor. Furthermore, meteorological data

for air dispersion modeling is unavailable for McGill. Brief for

Respondent at 43-44. The rollback method cannot be characterized

as arbitrary or capricious in light of existing scientific knowledge.

Texas v. EPA, 499 F.2d 289, 301 (Sth Cir. 1974). Sce Air Quality

& Stationary Source Emission Control, Report by the Commission

on Natural Resources, National Academy of Sciences, National

Academy of Engineering, Natural Research Council, prepared

for Sen. Comm. on Public Works, Sen. Doe. 94-4, 94th Cong., Ist

Sess., at 242-45 (1975) [hereinafter cited as Air Quality Report].

' EPA also argues that the policy stated in § 101(b)(1) of the

Act, 42 U.S.C. § 1857(b) (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,’’ author-

izes EPA to restrict the use of intermittent controls with respect

to SOQ, because of the potentially dangerous effects of aerosol sul-

furic acid and sulfates, the end products of atmospheric SO. reae-

tions even at SO, concentration levels below those permitted by

national air quality standards. The dangers and uncertainties are

outlined in Environmental Protection Agency, Health Consequences

of Sulfur Orides: A Report from CITESS, 1970-1971, at 18 & 20

(May 1974); Air Quality Report, supra note 14, at XVII-XVIII,

532-33. It is unnecessary to consider this possible alternative

source of authority.

8a

EPA reads the phrase ‘‘as may be necessary’’ as modi-

fying only ‘‘such other measures,’’ and not ‘‘emission

limitations.’’ In EPA’s view, measures other than emis-

sion limitations are therefore permissible only if ‘‘neces-

sary’? to achieve applicable air quality standards; such

‘‘other measures’’ are not ‘‘necessary’’ if economically

feasible emission limitation technology is available.

EPA supports its interpretation of section 1857c-5

(a)(2)TB) by references to the language and legislative

history of the Clean Air Act Amendments of 1970. EPA

relies upon the fact that an option to utilize intermittent

controls or tall stacks carries the potential for evasion of

the intent of Congress that emission limitations be in-

eluded in implementation plans. EPA invokes the policy

of nondegradation of the quality of the nation’s air, im-

plied from the Act."*) EPA also draws support from the

Supreme Court’s decision in Train v. Natural Resources

Defense Council, Inc., 421 U.S. 60 (1975), and from the

provisions and legislative history of the Energy Supply

and Environmental Coordination Act of 1974.

The Courts of Appeals for the Fifth and Sixth Cireuits

have adopted the interpretation of section 1857¢-5

(a)(2)(B) urged by EPA. Natural Resources Defense

Council, Inc. v. EPA, 489 F.2d 390 (Sth Cir. 1974), reversed

in part on other grounds sub nom., Train vy. Natural Re-

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

v. EPA, 499 F.2d 289, 311 (Sth Cir. 1974); and Big Rivers

Electric Corp. v. EPA, — ¥-.2d — (6th Cir. 1975).

In Natural Resources Defense Council, the Fifth Cir-

cuit held that EPA may approve tall stack dispersion

techniques in a state implementation plan ‘‘only (1) if it

18The nondegradation policy requires that existing air quality

be maintained even if degradation would not reduce the quality

of the air below national standards. Natural Resources Defense

Council, Inc. v. EPA, 489 F.2d 390, 408 (5th Cir. 1974). This

court has recognized that the Clean Air Act intends such a policy.

Natural Resources Defense Council, Ine. vy. EPA, 507 F.2d 905,

913 (9th Cir. 1974).

9a

is demonstrated that emission limitation regulations in-

cluded in the plan are sufficient standing alone, without

the dispersion strategy, to attain the standards; or (2) if

it is demonstrated that emission limitation sufficient to

meet the standard is unachievable or infeasible, and that

the state has adopted regulations which will attain the

maximum degree of emission limitation achievable.’’ 489

F.2d at 410 (emphasis in original).’” We agree, in gen-

eral, with the Fifth Cireuit’s analysis (489 F.2d at 403-09)

of the history and contents of the Clean Air Act Amend-

ments of 1970 leading to this conclusion.”

! Prior to the Fifth Circuit’s decision in Natural Resources

Defense Coune’l, EPA vacillated in its interpretation of the stat-

ute “ijn the face of strong industry and Administration pres-

sure’ Ayres, Enforcement of Air Pollution Controls on Sta-

tionary Sources Under the Clean Air Amendments of 1970, 4 Eecol-

ogy L.Q. 441, 457-58 (1975). Thereafter EPA consistently urged

this construction, as it has in this case.

| *“ Kennecott’s attempt to distinguish the Fifth Cireuit decision

on the ground that the Georgia plan relied entirely upon disper-

sion techniques is unavailing; the Georgia plan, like that of Nevada,

included the use of substantial emission reduction measures, 489

F.2d at 409.

Kennecott contends that the Fifth Cirenit erred in’ reading

the words ‘‘emission limitations’’ in § 1857e-5(a)(2)(B) to ex-

clude emission dispersion and intermittent controls, Any other

reading would render the words ‘‘other measures** surplusage.

The Fifth Circuit’s reading also best serves the congressional

purpose to protect and enhance the quality of the nation’s air,

A summary of the 1970 amendments presented to the Senate by

Senator Muskie distinguishes between emission limitations and ‘‘in-

terim control measures.’’ 116 Cong. Ree. 42384 (1970) (col. 8).

Senator Muskie later expressed the view that emission redue-

tions are required by the Aet. 119 Cong. Ree. S 10941 (daily ed.

June 12,1973). William Ruckelshaus, EPA’s first Administrator,

indicated that ‘emission limitations’? meant emission reductions.

1972 Oversight Hearings, supra note 3, at 265, 266,

Despite Kennecott’s contrary arguments, we think the Fifth

Circuit properly viewed the provisions §§ 1857¢-6, 1857¢-7, and

1857¢-6(d), as supportive of a construction of § 1857e-5(a) (2) (B)

reflecting a preference for continuous emission reductions. These

provisions do not point unerringly to that result, of course, but

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rere ere —wbipm SAE bt ere

10a

In Big River Electric Corp., the Sixth Circuit extended

the Fifth Cireuit’s decision to intermittent emission con-

the supporting inferences the Fifth Circuit drew from them are

justified,

We do not attach the same significance the Fifth Cireuit does

to the use of the words ‘‘emission standard or limitation’’ in the

statement of the authorized subject matter of citizen enforcement

actions in § T857h-2(a)(1). It may be argued (as the Fifth Cir-

cuit does) that since citizen enforcement actions are limited to

emission limitations, Congress must have intended that such limi-

tations be used whenever possible; but it may also be argued (as

Kennecott does) that Congress must have intended the term ‘‘emis-

sion limitations’? to include all types of controls. Both arguments

assume that the term has the same meaning in § 1857e¢-5(a) (2) (B)

as it has in § 1857h-2(a)(1). Tlowever, if the overall purpose of

Congress would be better served by construing the term to in-

clude intermittent controls and tall stacks in § 1857h-2(a)(1) and

to exclude them in § 1857e-5(a)(2)(B), there is no reason this

reading cannot be adopted. Bailey v. United States, 360 F.2d 113,

116 (9th Cir. 1966); Grand Lodge of Int’l Ass’n of Machinists v.

King, 335 F.2d 340, 344 (9th Cir. 1964). The use of ‘‘other

measures’? in § 1857e-5(a)(2)(B) and its omission in § 1857h-2

fa)(1) supports such a construction. Senator Muskie, who clearly

thought § 1857¢-5(a) (2) (B) expressed a preference for emission re-

duction (120 Cong. Ree. S 10409 (daily ed. June 12, 1974), also

thought a private citizen could sue to enforce provisions requir-

ing intermittent controls. Jd.

Kennecott’s argument that use of a tall stack reduces ground

level concentrations, or ‘‘dilutes’’ the pollutant and therefore is

not inconsistent with a policy of nondegradation of air quality,

ignores the undeniable fact that a tall stack does nothing to reduce

emissions because it introduces all of the pollutant into the atmo-

sphere. Sec 1972 Oversight Hearings, supra, note 3, at 688 (ex-

planation of tall stacks by Mr. Crawford).

Kennecott admits that a *‘Summary of the Provisions of Con-

ference Agreement on the Clean Air Amendments of 1970’? (see

116 Cong. Ree. 42284 (Dee. 18, 1970)) submitted to the Senate

by Senator Muskie ‘‘seem[s] to reflect a view that all sources

should be subject to emission limitations.’’ Petitioner’s Brief at

39. This conceded, it is not circular (as Kennecott suggests) to

argue that § 1857¢-5(a)(2)(B) must be interpreted to prefer emis-

sion limitations in order to prevent evasion of the intent of Con-

gress, since state plans might otherwise rely wholly on less ex-

pensive intermittent controls and dispersion techniques to achieve

air quality standards.

lla

trol systems, holding that section 1857¢-5(a)(2)(B) author-

izes EPA to reject state plans providing for the use of

intermittent emission control systems without a showing

that constant emission controls are unavailalite.*? The

Sixth Circuit based its conclusion upon the Fifth Circuit’s

analysis of the Clean Air Act Amendments of 1970, and

upon the Supreme Court’s discussion of section 1857¢-5-

(a)(2)(B) in Train v. Natural Resources Defense Council,

Train parses section 1857¢e-5(a)(2)(B) as EPA’s interpre-

tation suggests (421 U.S. at 67), and adopts the position

that a state plan must include provisions regulating the

composition of substances emitted from a given source.

421 U.S. at 78. The Sixth Cireuit noted that since com-

position means ‘‘kind and amount,’’ Train recognizes that

a state plan must limit the amount of a pollutant. — F.2d

at —.

We agree with the Sixth Cireuit that Train adds signifi-

cant support to EPA’s interpretation of section 1857¢-5-

(a)(2)(B) as expressing a preference for emission limita-

tions.” Intermittent control systems (such as those re-

“1The Fifth Circuit stated in dicta that intermittent control

systems were dispersion techniques subject to interdictions simi-

lar to those imposed on tall stacks. 489 F.2d at 394 nv.

*2 Kennecott argues EPA cannot require Kennecott to develop

and adopt improved methods of emission reduction in view of the

Supreme Court’s statement in Train that ‘‘so long as the national

standards are being attained and maintained, there is no basis in

the present Clean Air Act for forcing further technological de-

velopments.’’ 421 U.S. at 91.) The Supreme Court was referring

to modification of source-by-source emission limitations fixed by

the state. EPA must approve such modifications so long as the

state plan as a whole provides for a mix of emission limitations

from all sources sufficient to meet national air quality standards.

The Train holding is that EPA may not raise the emission limi-

tation fixed by the state for a particular source to force techno-

logical improvement. as to that source so long as the emission limi-

tations set by the state for all sources are sufficient to meet na-

tional air quality standards. The Supreme Court was not ad-

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en on

12a

stricting production, or utilizing less polluting fuels, dur-

ing periods of adverse weather) do limit the amount of

pollutant emitted while such controls are being applied.

However, the reliability and enforceability of such controls

is questionable; they may not be implemented when they

are in fact needed. Moreover, there is no assurance that

temporary reductions in emissions resulting from such con-

trols will not be balanced, or even exceeded, by an increase

in the amount of pollutant emitted when weather conditions

improve and production is increased to make up for prior

losses, or more polluting fuels are again used. Thus, inter-

mittent controls, like tall stacks, may only disperse the

pollutant rather than reduce it. Tall smokestacks disperse

a pollutant through greater quantities of air; intermittent

control systems disperse a pollutant through longer periods

of time. Neither assures a reduction in the quantity of

the pollutant eventually emitted. Under section 1857ce-5-

dressing the question presented in this case; that is, whether EPA

may seck to force development of technology to the extent nee-

essary to enable national standards to be met by emission limita-

tion controls, rather than by other measures.

“3 Sce 37 Fed. Reg. 15095 (July 27, 1972); 38 Fed. Reg. 25698

(Sept. 14, 1973). See also 120 Cong. Ree. S 10409 (daily ed. June

12, 1974) (remarks by Senator Muskie).

“AAs an EPA staff paper stated (Cong. Rec. June 12, 1973)

(daily ed. at S 10948) :

Depending on the circumstances, [an intermittent control

system] may or may not reduce the average long-term emis-

sions. If plant operation is curtailed during poor dispersion

conditions, then it may be increased during good conditions

to make up for the lost production. Average emissions would

be about the same with or without [an intermittent control

system] for this situation. If clean fuel is used to reduce

emissions during poor dispersion conditions, then average

emissions will be reduced somewhat. If fuel with higher

sulfur content is used during good conditions, then average

emissions could be greater with [an intermittent control sys-

tem]. Tt must be conelnded, therefore that although [an

intermittent control system] employs temporary emission limi-

tation, the long-range control method is that of taking ad-

vantage of good dispersion rather than emission reduction.

13a

(a)(2)(B), EPA may require that assurance. We there-

fore agree with the Sixth Cireuit that EPA acted within

its authority in refusing to accept intermittent controls as

adequate compliance with the statute.

Kennecott presses one argument, based upon the 1970

amendments, not addressed by either circuit. Section

1857¢e-5(a)(2)(B) is applicable to existing sources of pol-

lutants; section 1857e-6(b)(1)(B) governs new sources.

Congress intended the standard applicable to the latter to

be the more stringent. Kennecott argues that EPA’s in-

terpretation of section 1857¢-5(a)(2)(B) would make the

new source and existing source standards the same. INen-

necott is mistaken. The new source standard requires ‘‘the

degree of emission limitation achievable through the appli-

‘ation of the best system of emission reduction’? without

regard to air quality standards. 42 U.S.C. § 1857¢-6(a) (1).

In contrast, existing sources, under EPA’s view of section

1857¢-5(a)(2)(B), need only reduce emissions to the extent

necessary to comply with air quality standards. Moreover,

existing sources, as opposed to new sources, need adopt

only such systems of emission reduction as are economically

feasible, so long as interim compliance with air quality

standards may be achieved by ‘‘other measures.’? These

differences are real. The record discloses that technology

eapable of reducing SO» emissions by 80 percent is avail-

able and is now installed at two Kennecott smelters. Such

technology has not been required at MeGill only because

the required investment would be uneconomic at that

smelter, See note 13.

Ill

Congress again amended the Clean Air Act in 1974.

The Energy Supply and Environmental Coordination Act

of 1974 added a new section 119 to the Act, 42 U.S.C.

§$1857c-10. The provisions of this amendment assume that

section 1857¢e-5(a)(2)(B) has the meaning attributed to it

by the Fifth and Sixth Circuits and by EPA. The legisla-

tive history adds further significant support to this inter-

pretation.

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BLEED THROUGH

l4a

The 1974 Amendments were a response to the 1973 oil

embargo and resulting energy crisis. They provide, among

other things, for temporary suspension of emission limi-

tations where fuels necessary to compliance become un-

available, or a plant burning oil or gas converts to coal.

A predecessor to the 1974 Amendments was adopted dur-

ing the first session of the 98d Congress, but was vetoed.”

The legislative history of the aborted statute throws light

on the proper construction of section 1857e-5(a)(2)(B).

As it passed the House, the statute contained a provision

(originating in the so-called Murphy Amendments) imply-

ing that the Clean Air Act did not require emission limita-

tions, and permitting the permanent use of intermittent

controls at certain emission sources.*° This provision did

2510 Wkly Comp. of Pres. Doc. 289 (1974) (Veto of S. 2589).

“° Murphy Amendments to H.R. 11450, § 201 (particularly pro-

posed § 119(a)(2)(A) (iii) & (B)(i) of the Clean Air Act): Com-

pare 119 Cong. Rec. H 11460 (daily ed. Dee. 14, 1973) with td.

H 11230 (daily ed. Dec. 12, 1973).

Prior to adoption of the Murphy Amendments the proposed

statute provided that the Administrator of EPA could tempo-

rarily suspend any stationary source fuel or emission limitation

‘if the Administrator finds—

(iii) that such person has been placed on a schedule which

provides for the use of methods which the Administrator de-

termines will assure continuing compliance with the stationary

source fuel or emission limitation as soon as practicable (but

no later than June 30, 1979), which schedule shall include

increments of progress toward compliance with such limita-

tion by such date.

(B)(i) Any schedule under subparagraph (A) (iii) shall

include a date by which a contractual obligation shall be en-

tered into for an emission reduction system. .. .’’

119 Cong. Rec. H 11228 (daily ed. Dee. 12, 1973) (emphasis

added).

Congressman Murphy’s amendment modified this provision to

read as follows:

(iii) that such person has been placed on a schedule which

provides for the use of methods which the Administrator de-

15a

not survive the Conference Committee. As enacted, the

Conference substitute permitted use of alternative or inter-

mittent controls only by pollution sources that converted

to combustion of coal, and then only under such conditions

as ‘‘would require incremental steps toward compliance by

utilization of low sulfur coal or coal by-products, or by

continuous emission reduction systems.’’** The 1973 legis-

termines will assure continuing compliance with a national

primary ambient air quality standard as soon as practicable

(but no later than June 30, 1979), which schedule shall in-

clude increments of progress toward compliance with such

standard by such date.

(B)(i) Any schedule under subparagraph (A) (iii) shall

include, if neecssary to meet a national primary air quality

standard, a date by which a contractual obligation shall be

entered into for an emission reduction system... .

119 Cong. Ree. H 11460 (daily ed. Dee. 14, 1973) (emphasis

added).

Congressman Murphy declared that ‘*[nJothing in section 110

of the Clean Air Act mandates the use of any particular method

of achieving air quality, such as scrubbers or low sulfur fuel.’’ Jd.

at H 11231 (daily ed. Dee. 12, 1973). These views were shared

by Congressman Jones of Alabama. i. at If 11214, and Congress-

man Nelsen, id. at He 11231. But sce note 34 infra. In passing

the House, the Murphy Amendment survived a counter amend-

ment by Congressman Symington who recognized the implications

of Congressman Murphy's proposal. 119 Cong. Ree. H 11394-95

(daily ed. Dee. 14, 1973).

*“ The Report of the Conference Committee states (Conf. Rep.,

S. Rep. No. 93-663, 93d Cong., Ist Sess. 83-84 (1973)) :

The House-passed bill would have permitted the use of

so-called intermittent or alternative control strategies as a

means of meeting ambient air quality standards if such

strategies were determined by the Administrator to be reliable

and enforceable. This permission would have applied to

both existing sources not affected directly by the energy emer-

gency and sources required to convert to coal under the emer-

gency legislation.

The Senate bill would have permitted revision of existing

implementation plans to require use of continuous emission

16a

lation assumed the correctness of EPA’s construction of

section 1857e-5(a)(2)(B).

The same pattern was repeated with respect to the bill

adopted in the next session of the 98d Congress and signed

by the President—again Congress assumed that the Clean

Air Act is to be construed as requiring the use of continu-

ous emission reduction systems if available, and again Con-

gress rejected an affirmative effort to modify the statute

to alter this construction. In March 1974 Russell E. Train,

Administrator of EPA, transmitted a proposed bill to the

Speaker of the House of Representatives which, in perti-

nent part, was the same in substance as the statute even-

tually adopted.s) Mr. Train also transmitted two proposals

advanced by other agencies of the Executive branch which,

he wrote, ‘‘l do not support.’? One of these proposals

would have rejected the nondegradation policy, collaterally

reduction systems on any fuel-burning stationary sources af-

fected by shortages of fuels, suspensions or conversions.

The conference agreement does not include either of the fore-

going broad provisions. Instead, the conferees decided to

limit the application of this provision to those sources which

convert to combustion of coal as a result of the energy emer-

geney. The conference substitute requires these converting

sources to come into comphance with all plan requirements

by 1979 Cor 1980, if a postponement is obtained under see-

tion 110; f)) in accordance with a schedule which meets re-

quirements of regulations of EPA. These requirements would

require incremental steps toward compliance by utilization of

low sulfur coal or coal by-products, or by continuous emission

reduction systems to permit the combustion of high sulfur

coal (or coal with high ash content) in compliance with such

plan requirements.

28 Letter dated Mar. 22, 1974. from Russell E. Train, Adminis-

trator of EPA, to Hon. Carl T. Albert, Speaker of the House of

Representatives, attached to TLR. Rep. No, 93-1013, 2 U.S. Code

Cong. & Admin. News, 93d Cong., 2d Sess., at 3298 (1974). The

Administration proposal appears at 4 BNA Envy. Rptr. 2004-09

(1974) (current developments).

17a

relevant here.*” The other, directly relevant, would have

amended section 1857¢-5 expressly to bar the interpretation

of subsection (a)(2)(B) adopted by the Fifth and Sixth

Circuits and EPA, and to require the interpretation urged

by Kennecott. The proposed bill would have added a new

subsection to section 1857¢-5 providing that nothing in that

section was to be construed ‘‘to preclude use of alternative

or intermittent control measures’? which are reliable and

enforceable and ‘‘will permit attainment and maintenance

of the national ambient air quality standards.’’ *°

“9 This proposal read :

A BILL

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

SIGNIFICANT DETERIORATION

Section 101 (b) (1) of the Clean Air Act is amended to

read as follows:

*€(1) to protect and enhance the quality of the Nation’s

air resources by establishing, achieving, and maintaining na-

tional ambient air quality standards, standards of perform-

ance for new stationary sources, aud national emission stand-

ards for hazardous air pollutants so as to promote the

public health and welfare and the productive capacity of

the Nation, but nothing in this Act is intended to require

or authorize the establishment by the Administrator of

standards more stringent than primary and secondary am-

bient air quality standards ;”’.

4 BNA Env. Rptr. 2010 (1974) (current developments).

8° The proposal read :

A BILL

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

INTERMITTENT OR ALTERNATIVE CONTROL

MEASURES

Section 110 of the Clean Air Act is amended by adding sub-

section (h) which reads as follows:

‘*(h) Nothing in this section shall be construed to pre-

clude use of alternative or intermittent control measures

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18a

Mr. Train described the Administration’s proposed bill

as a victory over the two proposals favored by other execu-

tive agencies, which, he said, would ‘‘significantly weaken

the Clean Air Act.’’ He pointed out that these two pro-

posals were submitted to Congress by the Administration

only as issues to be considered, not as recommended

changes. He noted that the proposal regarding intermit-

tent controls, rejected by the Administration, was intended

‘*to allow the use of intermittent control strategies as a

permanent method for achieving compliance with stationary

source emission standards.’’? Mr. Train reaffirmed EPA’s

contrary position, stating, ‘‘As in the past, EPA will con-

tend that the intermittent controls can be used only as an

expedient, temporary control measure.’’ *?

EPA’s position prevailed in Congress as it had within

the Executive branch. The 1974 Amendments did not in-

clude the proposal approving general permanent use of

intermittent controls to achieve national air quality stand-

ards, or the proposal rejecting the policy of nondegra-

dation. Intermittent controls were allowed only in care-

fully limited situations, and then only temporarily. Plants

converting from oil or natural gas to coal might obtain an

extension of compliance dates but only on condition that

which the Administrator determines are reliable and en-

forceable and which he determines will permit attainment

and maintenance of the national ambient air quality stand-

ards.’’

4 BNA Env. Rptr. 2010 (1974) (current developments).

“14 BNA Envy. Rptr. 1927 (1974) (current developments).

82 Tn addition to the bill set out in note 30, Congress had before

it a proposal offered by Congressman Nelsen (H.R. 13464) to

amend 42 U.S.C, § 1857e-5(a)(2)(B) to provide that intermittent

controls were acceptable as permanent alternatives to emission

limitations. 120 Cong. Rec. IH 1780, E 1376-78 (daily ed. Mar.

13, 1974). The bill died in committee.

19a

they enter into binding contracts for a long term supply

of coal that would enable them to meet emission require-

ments, or contract for continuous emission reduction sys-

tems necessary to enable them to achieve the required de-

gree of emission reduction. EPA was empowered to im-

pose such ‘‘interim requirements’? as were ‘‘reasonable

and practicable,’’ but the required degree of emission re-

duction was to be achieved no later than a date certain

set by the statute. 42 U.S.C. §1857¢-10(¢)(2)(B) & (C).

The required degree of emission limitation was fixed by

reference to the state implementation plan applicable to

the particular plant, but no one suggested that the statu-

tory scheme might be frustrated because such a plan might

seck to attain air quality standards by means other than

emission reduction. On the contrary, Congress clearly

understood that existing law required that air quality

standards be achieved by emission reduction, and that other

control measures were to be employed only temporarily.

Thus, in the course of presenting the Conference Report

on the 1974 Amendments to the Senate, Senator Muskie,

Chairman of the Subcommittee on Environmental Pollu-

tion and manager of the bill in the Senate, pointed out

that ‘‘intermittent control strategies are permitted as an

interim measure applicable to coal conversion’’ if EPA

determined they were enforceable.* After expressing his

personal doubt as to the enforceability of intermittent con-

trols, Senator Muskie said:

It is these doubts that lead me to underscore the fact

that no one should view limited applicatica of enforce-

able strategies related to this legislation as a precedent

for future legislation or as a reinterpretation of the

requirements of the existing law which bar the appli-

33.120 Cong. Rec. S 10409 (daily ed. June 12, 1974) (1st col.)

(emphasis added).

20a

cation of intermittent control strategies as a substitute

for emission limitations.”

34120 Cong. Ree. S 10409 (daily ed. June 12, 1974) (8d col.)

(emphasis added). See also 120 Cong. Rec. S 8014 (daily ed. May

14, 1974).

The statement of Senator Baker, ranking minority member of

the subcommittee, in support of the Conference Report, reflects

the same understanding that emission limitations must be met

by continuous reduction systems (120 Cong. Rec. S 10426 (daily ed.

June 12, 1974) (1st col.)):

I am concerned about the conference report provision that

powerplants unable to obtain sufficient low sulfur coal or coal

alternatives to meet emission limitations applicable under the

law must undertake to obtain continuous emission reduction

systems which are capable of meeting these limitations by

1279 while burning high sulfur coal. Although the term

“eontinuous emission reduction system’’ is broad enough to

eneompass a broad range of technology, I foresee the possi-

bility that certain specific solutions to the problem of sulfur

oxide emissions might receive undue emphasis. For this

reason, I want to emphasize that the term is meant to indi-

cate any technology involving advanced techniques of com-

bustion of coal—sueh as the fluidized-bed process—or after-

treatment of combustion gases—for example flue gas desulfuri-

zation, better known as serubber technology.

Senator Baker's statement echoes the view of John Sawhill, a

subsequent Administrator of the Federal Energy Office, stated in

a May 20, 1974, letter to Chairman Jennings Randolph of the

Senate Public Works Committee:

Specifically, we are concerned with the provisions of see-

tion 119(b)(2)(B) that require that plants scheduled to

convert must be committed to a compliance schedule that pro-

vides a date by which the source must enter into contracts for

low sulfur coal or serubbers. This provision is coupled with

section 119(b) (2) (C) that requires plants granted suspensions

to come into compliance with emission regulations in a state

implementation plan that are in effect on the date of en-

actment of these amendments.

The requirement concerning contracts for low sulfur fuel

or scrubbers would effectively preclude the use of intermittent

control systems as an alternative method for achieving com-

plianee. If the Administration’s proposal to permit use of

intermittent control systems, contained in our March 22

2la

These legislative materials offer convincing evidence that

the 938d Congress interpreted the 1970 Amendments to the

Clean Air Act to require that air quality standards must

be met by continuous emission reduction controls so far

as possible.*® The 1974 Amendments confirm this reading

amendments to the Clean Air Act, is adopted, this section of

H.R. 14368 would have to be amended to conform with it.

120 Cong. Ree. S 10414 (daily ed. June 12, 1974). (Both the

Federal Energy Office and EPA claimed to represent the Ad-

ministration, despite their inconsistent position on whether to

permit permanent use of intermittent controls. The Energy

Office’s proposal was, however, only an alternative.)

Congressman Nelsen had earlier supported the Murphy Amend-

ments, sce note 26, and had introduced legislation to amend 42

U.S.C. § 1857¢-5(a)(2)(B) to permit intermittent controls, see

note 32. He noted that the ‘‘total impact of [new section 119]

and the Clean Air Act provisions is to lock in the technology of

scrubber systems ....’’ 120 Cong. Ree. H 5002 (daily ed. June

11, 1974). Congressman Nelsen nonetheless voted for the bill be-

cause Congress was committed to reexamination of his concerns

regarding intermittent controls. Id. Sec also 120 Cong. Ree. S 8018

(daily ed. May 14, 1974) (comments by Senator Randolph) (‘‘ [See-

tion 119] would clarify EPA’s authority to impose interim re-

quirements that both protect air quality and insure appropriate

efforts are taken to secure continuous emission control systems or

conforming fuels’’). Senator Randolph mentioned the Fifth Cir-

enit’s Natural Resources Defense Council decision, and was criti-

cal only of that portion relating to the granting of variances.

%° Kennecott’s entire response to these materials is a footnote

suggestion that the 1974 Act and its legislative history ‘‘must be

construed in the context of the oil shortage it was intended to

deal with, which gave rise to the necessity of permitting the

EPA to impose [intermittent control] strategies upon states

against their wishes and in violation of their state emission limi-

tations despite the Clean Air Act’s command that states be per-

mitted to opt for stricter emission limitations than would be re-

quired to meet national ambient air quality standards’? (emphasis

in original). Reply Brief of Petitioner Kennecott at 14 n.1.

Giving this circumstance full weight, it does not diminish the

significance of the compelling showing that Congress interpreted

42 U.S.C. § 1857¢-5(a) (2) (B) as EPA urges us to interpret it.

Accord Air Quality Report, supra note 14, at 213.

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22a

of the earlier statute by strong implication. In these cir-

cumstances, the rule that ‘‘[s]ubsequent legislation declar-

ing the intent of an earlier statute is entitled to significant

weight’? is appropriately applied. NLRB vy. Bell Aero-

space Co., 416 U.S. 267, 275 (1974); see Red Lion Broad- :

casting Co. v. FCC, 395 U.S. 367, 881 (1969) ; South Termi-

nal Corp. v. EPA, 504 F.2d 646, 669-70 (1st Cir. 1974) ; ef.

Rath Packing Co. v. Becker, — F.2d —, — (9th Cir. 1975).

IV

KXennecott spent $4,000,000 to implement the Nevada

plan, but suspended further construction on the $30,000,000

project pending completion of this review proceeding.

Kennecott states that the McGill smelter will only support

the expenditures required by the Nevada plan, and that

the smelter must close if Kennecott is required, in addition,

to conduct research to devise new constant control tech-

nology which would be economically feasible at MeGill.

EPA’s plan requires the same immediate capital outlay

as the Nevada plan with which Kennecott has said it can

comply. Contrary to Kennecott’s contention, EPA’s plan

would not expose Kennecott to the risk that it would be

required to make further capital investments for the instal-

lation of uneconomic continuous emission control systems

in the future. As EPA has undertaken to assure Kenne-

cott (see note 13), under EPA’s interpretation of section

1857e-5(a)(2)(B), EPA could not compel Kennecott to’

install additional emission reduction systems at McGill

unless it were economically feasible to do so.

The order of the Environmental Protection Agency is

sustained.

BLEEI

THR OU GH

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