Petition for Writ of Certiorari — Exxon Corp. v. Environmental Protection Agency
Supreme Court brief1976
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EXXON CORPORATION, SHELL OIL
COMPANY, AMOCO OIL COMPANY
AND ATLANTIC RICHFIELD COMPANY,
Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
PETITION FOR WRIT OF CERTIORARI TO
1
Richfield Company -
tae
et
INDEX
Page
Opinion delow .........ccecceccrcccccrccccccccceccees 1
Jurisdiction ......... cece ceccee cece reecereeeccceseees 2
Questions presented .........e eee e cece eee e eee e ee eeeee 2
Statutes and regulations involved ..........--+seeeeeees 2
Statement of the case ..........ccccecceccscescccccees 3
Reasons for granting the writ ...........-eeeee ee eeeeees 6
CI ao sira db sd xeaceacancsssyscisesessseevessse 15
Appendix A (Opinion of Court of Appeals) .........--. A-1
Appendix B (Court of Appeals Denial of First Petition
for Rebemrimg) 2.2.0... ccccccscccccccsscsscscccsces B-1
Appendix C (Court of Appeals Denial of Second Petition
for Rehearing) ........cccscccccccccssccsccvecccess C-1
Appendix D (Ship and Barge Regulation) ..........-... D-1
Appendix E (Section 110(a)(2), (c) of the Clean Air Act) E-1
~ Appendix F (Section 391(a) of the Ports and Waterways
Sabet BER) one veccvacasvsecoccesscnsscccnsnsesees F-1
Appendix G (EPA Suspension of Final Compliance Date) G-1
Appendix H (Payne Affidavit) .........-+eeeeee serene H-1
Appendix I (Boykin Affidavit) ..........ss+eseeeeeeeee I-1
Appendix J (Durland Affidavit) ......-.---+-seeeeeeeee J-1
Appendix K (Grimes Affidavit) ......-.--+seeeeeeeees K-l
Appendix L (Benkert Letter) .......-.--++eeeeeeeeeee L-1
Appendix M (Ginsburgh Affidavit) ........-+-..++++e+- M-1
SEONG RAN RE A AL ERLE REE TE NELLIS: IES ACEI RE GNA SRE ll ts NET
II
CITATIONS
CASES Page
Appalachian Power Co. v. Environmental Protection Agency,
I a ea Ak a Ndinnineee 7,11, 12
Buckeye Power Inc. v. Environmental Protection Agency,
Da io ala nbaane xia 7,12
Citizens to Preserve Overton Park v. Volpe, 401 US. 402 .. 11
Duquense Light Co. v. Environmental Protection Agency,
Fn. ort wie arena eapinietn er digtees maaan a0 12
Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 .......+.++-- 12
Indiana & Michigan Electric Co. v. Environmental Protection
Agency, 509 F.2d 839 ....... cece cece recent eee eens 13
Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 ..... 9
St. Joe Minerals v. Environmental Protection Agency, 508
Ne nce anadmie 12,15
South Terminal Corp. et al. v. Environmental Protection
Agency, 504 F.2d 646 ........ eee cece cece eee e eee eeeee 7,13
Train v. Natural Resources Defense Council, Inc., No. 73-
ee ee eae 6, 8, 10, 12, 15
Union Electric Co. v. Environmental Protection Agency, 515
EE EE pec nSc de denendchthdedanecnsqacssodwacee 13,15
STATUTES AND REGULATIONS
Clean Air Act of 1970, Section 110, 84 Stat. 1680, 42 U.S.C.
IS © nn nc ddnsancacvienyeresacccessves 2,3, 5, 8,11, 12,13
Clean Air Act of 1970, Section 307, 84 Stat. 1707, 42 U.S.C.
ES errr er rrrrerrr terre ree eee tere 4
Ports and Waterways Safety Act of 1972, 86 Stat. 427, 46
US.C. $390la ......ccecccccccccnccccrccccccccccces 3,15
I nied cdvga dee Ses tress. eeenscneccess 7
lh) ee Be. | ee ee ee eee 2,4, 5
Texas Air Control Board Rule 503.2 .........-.0+eeeeeee 4
MISCELLANEOUS
38 Fed. Reg. 16550 et seq. ......- cece cece cece eens 3
Og ee eee orertrc ere 4,11
ok Ge eee er re 5
ike Cannas baknmwnenina ws ss 5
S. 4358, Section 202(a), 91st Cong., 2nd Sess. (1970) .... 14
S. Rep. No. 91-1196, 91st Cong., 2nd Sess., page 59 (1970) 14
Grad, Treatise on Environmental Law, Vol. I ........-.--- 15
SADE LS AES ORRIN FN NATE I AE MP RE I IRE
Supreme Court of the United States
OCTOBER TERM, 1975
|
EXXON CORPORATION, SHELL OIL
COMPANY, AMOCO OIL COMPANY
AND ATLANTIC RICHFIELD COMPANY,
Petitioners
V.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Exxon Corporation, Shell Oil Company, Amoco Oil
Company and Atlantic Richfield Company petition for a
writ of certiorari to review the decision and judgment of
the Fifth Circuit Court of Appeals rendered in State of
Texas et al. v. Environmental Protection Agency, No.
73-3540.
OPINION BELOW
The opinion of the Court of Appeals (App. A, infra,
pp. A-1 to A-63) is reported at 499 F.2d 289.
2
JURISDICTION
The judgment of the Court of Appeals was entered on
August 7, 1974. A timely petition for rehearing was filed
on September 3, 1974, and denied on February 19, 1975
(App. B, infra, p. B-1). Thereafter, the Fifth Circuit
granted petitioners leave to file a second petition for
rehearing which was denied on April 3, 1975 (App. C,
infra, pp. C-1 to C-2). On June 27, 1975, an extension
of the time to file this petition for writ of certiorari to
and including August 31, 1975 was granted (No. A-
1056). The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
The questions presented for review by this Court are:
1. Whether the Administrator of the Environmental
Protection Agency can lawfully promulgate control mea-
sures in a substitute implementation plan under Section
110(c) of the Clean Air Act, 42 U.S.C. § 1857c-5(c),
without consideration of technological infeasibility, safety,
and other public interest factors?
2. Whether the Administrator of the Environmental
Protection Agency has statutory authority under the Clean
Air Act to regulate vapor emissions from ships and barges
despite Congress’ deliberate deletion from the Act of
provisions for control of vessel emissions?
STATUTES AND REGULATIONS INVOLVED
This petition involves the ship and barge hydrocarbon
vapor recovery regulation of the Texas Transportation
Control Plan, 40 C.F.R. § 52.2287 (App. D, infra, pp.
D-1 to D-2), which was promulgated by Respondent
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3
Environmental Protection Agency on November 6, 1973
pursuant to Sections 110(a)(2) and 110(c) of the Clean
Air Act, as amended, 84 Stat. 1680, 42 U.S.C. § 1857c-
5(a)(2), (c). (App. E, infra, pp. E-1 to E-4). Other
relevant statutory and regulatory provisions include Sec-
tion 201 of the Ports and Waterways Safety Act of 1972,
86 Stat. 427, 46 U.S.C. § 39la (App. F, infra, pp. F-1
to F-10).
STATEMENT OF THE CASE
On June 15, 1973, the Environmental Protection
Agency (EPA) disapproved the implementation plan for
attaining the photochemical oxidants ambient air quality
standard developed by the State of Texas pursuant to the
requirements of Section 110(a)(2) of the Clean Air Act,
42 U.S.C. § 1857c-5(a)(2).’ 38 Fed.Reg. 16550. On
November 6, 1973, EPA substituted its own plan, the
“Texas Transportation Control Plan”, for attaining the
—
1. Following the establishment of “primary” and “secondary” na-
tional ambient air quality standards for specific air pollutants at
levels requisite to protect “the public health” and “the public wel-
fare”, respectively, each State, pursuant to Section 110 of the Act, 42
U.S.C. §1857c-5, must adopt and submit to the EPA Administrator
a plan providing for the implementation, maintenance and enforce-
ment of the standards for air quality control regions within that
State.
The Administrator must approve or disapprove each plan with-
in four months of its submission. Section 110(a)(2), 42 U.S.C. §1857
c-5(a)(2). If the Administrator disapproves such plan or portion
thereof as not “in accordance with the requirements of” Section 110,
he must “promptly prepare and publish proposed regulations setting
forth” a substitute implementation plan. Section 110(c), 42 U.S.C.
§1857c-5(c). Within six months of the submission of the disapproved
State plan, the Administrator must promulgate final regulations unless
the State has “adopted and submitted” a revised plan determined by
the Administrator to comply with Section 110 requizements.
4
photochemical oxidants standard in Texas.’ 38 Fed.Reg.
30633. The EPA Plan consisted of the “disapproved”
State plan plus 12 additional control measures for five
air quality regions in Texas.
Pursuant to Section 307(b)(1) of the Clean Air Act,
42 U.S.C. § 1857h-5(b)(1), Exxon, Shell, Amoco and
Atlantic Richfield filed timely petitions for review of the
EPA Administrator’s disapproval of the State of Texas
plan and his promulgation of a substitute plan. On August
7, 1974, the Fifth Circuit held that the EPA had lawfully
disapproved the State of Texas’ implementation plan, and
that some of the EPA’s 12 new regulations were valid
while others were either invalid or deferred pending further
Agency consideration. See 499 F.2d at 321.
One of the regulations which the Fifth Circuit held
valid and enforceable was the ship and barge regulation
which requires control of hydrocarbon vapor emissions
during the loading and unloading of vessels using port facili-
ties within the Houston-Galveston 13-county air quality con-
trol region.* The Fifth Circuit upheld this regulation de-
spite finding that “[t]he necessary control technology is not
available,” and that “[t]here is no basis whatever in the
2. Photochemical oxidants are formed in the atmosphere by the
reaction of hydrocarbons with nitrogen oxides in the presence of
sunlight. Both the State of Texas’ and EPA’s implementation plans
contain control measures to control the emission of hydrocarbons into
the atmosphere as a means of reducing the ambient level of photo-
chemical oxidants.
3. Section 52.2287 of 40 C.F.R. is set forth in App. D at pp. D-1
to D-3. Also included is Texas Air Control Board Rule 503.2 which
was amended by Section 52.2287. As promulgated, Section 52.2287
requires the installation of vapor recovery equipment, such as conden-
sation or incineration systems, which reduce hydrocarbon emissions
such that the aggregate partial pressure of the hydrocarbon vapors
being emitted to the atmosphere will not exceed 1.5 psia.
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5
record for concluding that a final compliance date of
May 31, 1975 is technologically feasible.” 499 F.2d at
317. The Court of Appeals ruled that these uncontested
facts were legally irrelevant on the theory that Section
110 contemplates “plans which require control measures
of less than certain technological feasibility.” Jd.
Following the Fifth Circuit’s denial of their petitions
for rehearing (see App. B and C, infra), petitioners
applied to this Court on April 18, 1975, for a Stay of
mandate pending application for a writ of certiorari (No.
A-863). On April 23, 1975, Justice Rehnquist entered
a temporary stay, and the EPA Administrator suspended
enforcement of the interim, but not final, compliance
dates.‘ 40 Fed.Reg. 18437. Following this Court’s denial
of petitioners’ stay application on April 28, 1975, the
EPA Administrator on May 30, 1975 suspended enforce-
ment of the final compliance date until October 1, 1975,
40 Fed.Reg. 24185 (App. G, infra, pp. G-1 to G-2).
Despite this extension and possible additional extensions
until as late as May 31, 1977, compliance with the EPA
regulation is and will continue to be technologically in-
feasible (App. H-K), thus necessitating review by this
Court.’ Without a definitive ruling by this Court barring
4. The interim dates established in Section 52.2287 were: (a)
March 31, 1974 for letting contracts for emission control systems or
process modifications, (b) July 31, 1974 for initiation of on-site con-
struction, and (c) March 31, 1975 for completion of construction.
5. In his May 30, 1975 Federal Register notice, the EPA Ad-
ministrator stated that EPA “intends to publish proposed amendments
to the regulation within the near future” (see App. G, infra, p. G-2).
On this basis petitioners requested an extension of time in which to
file this petition for writ of certiorari. Petitioners were given until
August 31, 1975 to file their petition.
EPA has yet to publish any proposed amendments, although EPA
has indicated that possible amendments to the regulation may
6
the imposition of such technologically infeasible regula-
tions, EPA can be expected needlessly to include similarly
infeasible regulations at enormous economic costs in the
numerous implementation plans yet to be finalized by
EPA.
REASONS FOR GRANTING THE WRIT
i
A. This Court has authoritatively construed the Clean
Air Act as contemplating that an implementation plan,
whether drafted by the State or EPA, provide “the most
practicable and desirable methods of restricting total
emissions.” Train v. Natural Resources Defense Council,
Inc. (NRDC), No. 73-1742, decided April 16, 1975,
slip. cp. at 18.
The decision of the Fifth Circuit conflicts with this
Court’s ruling in Train v. NRDC. Instead of requiring
the “most practicable and desirable” approach, the court
of appeals’ opinion echoes EPA’s unlawful disregard of
petitioners’ uncontested showing of technological infeasi-
bility, safety hazards and severe economic impact in the
Houston-Galveston area.
In Train v. NRDC, this Court specifically held that
Congress “left to the States considerable latitude in deter-
mining specifically how the standards would be met.”
Train v. NRDC, supra, slip op. at 25. Indeed, “the State
is at liberty to adopt whatever mix of emission limitations
it deems best suited to its particular situation.” (/d. at 17).
include an extension of the final compliance date until May 31, 1977,
an expansion of the regulation to two other Texas Air Quality Control
Regions and the restriction of the regulation to the loading and un-
loading of only gasoline. None of these possible changes diminish the
urgent need for prompt resolution by this Court of the legal issues
presented in this petition.
7
EPA’s own regulations confirm that the State may
consider a host of factors affecting the welfare of its
citizens including technological feasibility, cost effective-
ness, safety, and social impact when fashioning the “mix
of emission limitations” contained in its implementation
plan. See generally 40 C.F.R. Part 51.°
EPA disapproval of an implementation plan submitted
by the State plainly does not dispense with this recog-
nized necessity to assess “the cost-effectiveness” of con-
trol strategies, or permit disregard of their “social and
economic impact.’ Indeed, if anything, the need for a
broad-range public interest inquiry is even more com-
pelling if EPA supersedes the State’s role and imposes
6. For instance Section 51.2 of the EPA’s regulations and guide-
lines provides that:
“Nothing in this part shall be construed in any manner:
+ * *
“(b) To encourage a State to adopt any particular control
strategy without taking into consideration the cost-effectiveness
of such control strategy in relation to that of alternative control
strategies.
x* * *
“(d) To encourage a State to prepare, adopt, or submit a
plan without taking into consideration the social and economic
impact of the control strategy set forth in such plan, including,
but not limited to, impact on avaiiability of fuel, energy, trans-
portation and employment. . . .”
7. In a case involving the EPA’s promulgation of a substitute
plan, the First Circuit in South Terminal Corp. v. Environmental
Protection Agency, 504 F.2d 646, 676, fn. 33 (1974), rejected the
view that the concerns expressed in the EPA regulations and guide-
lines at 40 C.F.R. Part 51 are “inappropriate.”’ Moreover, two other
courts of appeals have held that these regulations and guidelines are
appropriate for development of a State implementation plan. Appala-
chian Power Co. v. Environmental Protection Agency, 477 F.2d 495,
505-506 (4th Cir. 1973), and Buckeye Power, Inc. v. Environmental
Protection Agency, 481 F.2d 162, 169 (6th Cir. 1973).
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8
EPA’s “own mix of emission limitations” on the State.
Section 110(c), 42 U.S.C. § 1857c-5(c).
Therefore, the question presented by this case is whether
EPA can, consistent with this Court’s Train v. NRDC
decision, blatantly and consistently ignore technological,
economic and social considerations when it supersedes the
State’s responsibility under Section 110. There can be little
doubt that this is precisely what EPA did with regard to
the ship and barge regulation in its substitute Texas plan.
For example, despite comments by petitioners and others
at the EPA “public hearing” in July of 1973, the EPA blind-
ly ignored the many serious technological and safety prob-
lems cited, and disregarded the severe economic impacts
inherent in implementation of the regulation. The record
in this case, consisting of thousands of pages, contains
only two sentences of the EPA Administrator supporting
the promulgation of the regulation, both of which relate
to assumptions on the availability of technology. But even
these two statements were discounted by the court of
appeals in finding that there was “no basis whatever in
the record” that compliance was “technologically feas-
ible.” 499 F.2d at 317.
Still more distressing was EPA’s failure to consider the
very serious and complex safety problems which impair the
public health and welfare to a far greater degree than the
failure to reduce hydrocarbon emissions during ship and
barge loading and unloading operations. The danger of ex-
plosions, due to the volatility of hydrocarbon vapors when
mixed with air and the many sources of ignition typical in a
ship or barge loading or unloading operation, is beyond
dispute. Thus, the United States Coast Guard has ex-
pressed deep concern to the EPA Administrator on the
9
matter,® since any explosion at a dock facility could, by
chain reaction, approach catastrophic proportions, such
as the 1947 Texas City disaster where upwards of 500
people were killed and 3,000 injured when explosions
spread from a single ship to adjacent chemical plants and
refineries, and then to residential and commercial areas.”
Until these safety problems are solved EPA cannot reason-
ably require, and petitioners cannot responsibly install,
vapor control systems for ship and barge loading and
unloading operations.”°
Neither is there any evidence in the record that the
EPA Administrator considered the following social and
economic impacts in the implementation of the ship and
barge regulation:
(1) Lack of alternative means of transportation for
petitioners’ products, inevitable curtailment of production
under such circumstances, with resultant adverse effects
on employment and the supply of necessary. energy
products. See App. H-K, infra.
8. See, e.g., the April 18, 1975 letter of Rear Adm. W. M. Ben-
kert, Chief, Office of Merchant Marine Safety, to Russell Train, EPA
Administrator (App. L, infra, pages L-1 to L-2).
9. Under the circumstances, it was critically important for EPA
Administrator to take a “hard look” at these safety problems since
his “decisions can literally mean survival of persons or property.”
Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 394
(D.C. Cir. 1973).
10. The affidavits presented by petitioners in support of their
application to this Court for a stay of the mandate, filed April 18,
1975 (No. A-863), show that a safe vapor control system is presently
technologically infeasible and cannot be developed and installed until
1978 or 1979, if even then. App. H-K, infra, pages H-1 to K-4.
10
(2) Cost effectiveness of the EPA’s regulation which
even the EPA’s calculations show would produce only
minute reductions in hydrocarbon emissions’’ at enormous
costs estimated at $1,200,000 per ship, excluding on-shore
facilities.
(3) The discriminatory effect of applying the ship and
barge regulation only to the Houston-Galveston Air Quality
Control Region, including the probability that foreign-
flag vessels and even domestic ships will avoid the region
so aS not to incur the very substantial expense of installing
necessary, and potentially hazardous, control equipment
when, and if, it should become available.
In sum, the public interest objections raised by
petitioners bear critically upon any determination of the
appropriate “mix of emission limitations” which are “best
suited to [the] particular situation” of Texas. Train v.
NRDC, supra, slip op. at 17.7 Yet the EPA and the court
of appeals either failed to consider or dismissed as irrele-
vant the safety and other problems and impacts inherent
11. The EPA calculated that only 2.7% of the needed 75% re-
duction in hydrocarbon emissions would be achieved by the ship and
barge regulation. See 499 F.2d at 310, fn. 38. As demonstrated by
the Ginsburgh affidavit before the Fifth Circuit, App. M, infra, the
EPA overestimated the level of hydrocarbon emissions during ship and
barge loading by a factor of 3 to 5. Subsequent research by peti-
tioners, of which EPA is aware, confirms Dr. Ginsburgh’s earlier
studies and shows that the regulation will achieve only 0.4% of the
needed reduction in hydrocarbon emissions.
12. In determining the “mix of emission limitations” and other
control measures, the EPA must consider whether the ship and
barge regulation because of its many problems and minimal benefit
should be eliminated.
SRY RRC TERRI. RET IO wy . =
11
in implementing the ship and barge regulation. 499 F.2d
at 317. See also 38 Fed. Reg. 30636.”
A definitive ruling by this Court reaffirming EPA’s
duty to consider the various technological problems and
economic impacts of a control strategy as well as all
aspects of the public interest is now imperative, lest EPA
continue to disregard its statutory responsibilities in pre-
paring substitute plans under Section 110(c) of the Clean
Air Act. By providing much-needed guidance to EPA
and the courts, which must eventually review substitute
EPA implementation plans prepared for many other
air quality control regions, this Court would not only
clarify a situation which invites further litigation but also
promote rapid air pollution control progress consistent
with the public interest.
B. The various circuit courts of appeals are widely
split over whether EPA and the States must consider
technological infeasibility and other public interest factors
in preparing implementation plans under Section 110 of
the Clean Air Act. The decision of the Fifth Circuit in
this case conflicts with decisions of the First, Third and
Fourth Circuits.
As indicated by pending petitions for writ of certiorari
filed by the Solicitor General and others, the courts of
13. Moreover, the failure to consider safety and other factors is
contrary to this Court’s holding in Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 415-416 (1971), that all “relevant factors”
must be considered by an Agency. See also Appalachian Power Co.
v. Environmental Protection Agency, 477 F.2d 495, 507 (1973).
The postponement and revision procedures contained in the
Clean Air Act and mentioned by the Fifth Circuit do not justify
the imposition of an infeasible control strategy. These procedures
only apply in extremely limited circumstances and are either too time
consuming or time restricted to be of practical value. See 42 U.S.C.
§ 110(a)(3), (f).
12
appeals are in sharp disagreement over whether economic
and technological feasibility considerations must be taken
into account in EPA approval or disapproval of State
implementation plans.
For example, the Third Circuit recently held that the
EPA Administrator could disapprove the Pennsylvania
implementation plan “if he found it technologically un-
workable.” St. Joe Minerals v. Environmental Protection
Agency, 508 F.2d 743, 747 (1975), petition for a writ
of certiorari filed June 28, 1975, No. 74-1650.'* And
previously the Fourth Circuit in Appalachian Power Co.
v. Environmental Protection Agency, 477 F.2d 495, 505
(1973) sanctioned consideration by the EPA Admini-
strator of economic and technological feasibility “in eval-
uating the state plan in connection with his exercise of the
power to approve or disapprove.”*®
By contrast, the Sixth Circuit suggested in Buckeye
Power, Inc. v. Environmental Protection Agency, 481
F.2d 162, 173 (1973) that “high cost-benefit, techno-
logical infeasibility and resource unavailability” could
be considered in enforcement actions, but not “prior to
14. See also, Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3rd
Cir. 1972), cert. denied, 409 U.S. 1125 (1973); Duquense Light Co.
v. Environmental Protection Agency, 481 F.2d 1 (3rd Cir. 1973).
15. Under the Third and Fourth Circuit decisions, the invalidity
of infeasible regulations in a substitute EPA implementation plan fol-
lows a fortiori. For whatever the State’s authority to impose more
stringent limitations than required to meet the national standards, no
such consideration applies when EPA drafts an implementation plan
under Section 110(c), 42 U.S.C. §1857c-5(c).
Nor may such infeasible EPA regulations be justified as “technol-
ogy forcing” since “so long as the national standards” may be at-
tained by alternative control strategies, “there is no basis in the pres-
ent Clean Air Act for forcing future technological developments.”
Train v. NRDC, supra, slip op. at 29.
13
the Administrator's approval of state plans.” Similarly,
the Seventh Circuit in Indiana & Michigan Electric
Co. v. Environmental Protection Agency, 509 F.2d 839,
844 (1975), barred preenforcement consideration of
“technological feasibility and economic impact” on the
theory that these “are not among the factors which the
Administrator is obliged to consider under Section
110(a)(2).”
Most recently, the Eighth Circuit ruled in a related
jurisdictional context that “Congress intended to preclude
economic and technological factors from the Administra-
tor’s consideration of whether to approve an implementa-
tion plan”, citing the Fifth Circuit’s decision on the ship
and barge regulation as one of the cases supporting its
holding. Union Electric Co. v. Environmental Protection
Agency, 515 F.2d 206, 215, 218 (1975), petition for
writ of certiorari filed June 9, 1975, No. 74-1542.
Finally, in another case involving promulgation of
a substitute implementation plan by the EPA, the First
Circuit, in affirming much of EPA’s substitute Massa-
chusetts plan in South Terminal Corp. v. Environ-
mental Protection Agency, 504 F.2d 646, 681 (1974),
held that the technological feasibility of EPA’s regulations
must be considered. In contrast to the Fifth Circuit’s hold-
ing on the ship and barge regulation, the First Circuit
ruled that the Administrator’s action would be capricious
and overturned if “costly but equally effective alternatives
were rejected or the requisite technology is unavailable.”
(Id. at 656; emphasis added).
In sum, the fundamental conflict among the circuits
can be resolved only through a comprehensive decision
by this Court addressing EPA’s statutory responsibility
14
to consider technological feasibility as well as other public
interest factors when approving or disapproving implemen-
~tation plans submitted by the states, and when preparing
substitute implementation plans in the circumstance of
disapproval. Indeed, it is particularly appropriate to con-
sider and resolve this conflict within the context of this
case since technological infeasibility here results from very
serious safety hazards which directly impinge upon the
public health and welfare.
Il.
The decision of the court of appeals also presents
an important, unresolved question of EPA’s statutory
authority under the Clean Air Act to regulate hydro-
carbon emissions from ships and barges.
The legislative history demonstrates that, in contrast
to the expansive authority granted EPA to control emis-
sions from other categories of mobile sources, Congress
deliberately denied EPA power to regulate vessel emis-
sions. Section 202(a) of the original Senate bill, S. 4358,
9ist Cong., 2d Sess. (1970), expressly provided EPA
authority to promulgate “standards applicable to the
emission of all known substances of any kind or descrip-
tion from any class or classes of: (A) vessels, aircraft,
commercial vehicle and non-commercial vehicle en-
gines . . . .” The legislative history confirms that this
provision was intended to apply to “the emission of all
known pollution agents from vessels . . . .” S. Rep. No.
91-1196, 91st Cong., 2d Sess., p. 59 (1970) (emphasis
added).
Yet EPA’s authority to control vessel emissions was
deleted by the Conference Committee, most likely be-
15
cause of conflicts with the Coast Guard jurisdiction over
maritime matters, effects on international commerce and
the major safety hazards already noted.'* Reaffirming
this purpose, Congress acted promptly thereafter to
strengthen the Coast Guard’s regulatory jurisdiction and
to reconcile competing environmental and safety concerns
through passage of the Ports and Waterways Safety Act
of 1972, which explicitly authorizes rules and regulations
designed to protect the “marine environment.” 46 U.S.C.
§ 391a.
CONCLUSION
This petition for a writ of certiorari should be granted
so that the conflicts between the Fifth Circuit and this
Court’s Train v. NRDC decision, as well as among the
various circuits, regarding EPA’s statutory authority and
duty to consider technological infeasibility and related
public interest factors can be comprehensively resolved
together with other pending petitions for certiorari."
16. Notwithstanding the court of appeals’ decision in this case,
Congress plainly did not authorize “back-door” regulation of ship and
barge emissions as stationary sources:
“At present, there is no Federal legislation permitting the
control of the emissions from ships, boats, or other vessels. The
1970 Clean Air Amendments on moving sources cover only auto-
mobiles and aircraft.
* * *
“It is also clear that the vessels, even while in port, are not
included within the term stationary sources under the federal
air pollution control laws since stationary sources are defined so
as to exclude vessels.” (Emphasis added). F. Grad, Treatise on
Environmental Law, Vol. 1, p. 2-275 (1973).
17. St. Joe Minerals v. Environmental Protection Agency, No. 74-
1650, filed June 28, 1975; Union Electric Co. v. Environmental Pro-
tection Agency, No. 74-1542, filed June 9, 1975.
16
Respectfully submitted,
THOMAS M. PHILLIPS
LARRY B. FELDCAMP
BAKER & BOTTS
3000 One Shell Plaza
Houston, Texas 77002
713-229-1234
EDWARD W. WARREN
KIRKLAND, ELLIs & ROWE
1776 K Street, N.W.
Washington, D.C. 20006
202-833-8400
Attorneys for Petitioners
Of Counsel:
Dillard W. Baker James A. Evans
Malcolm D. Hawk Brynn F. Aurelius
Exxon Company, U.S.A. Shell Oil Company
P. O. Box 2180 Room 2086
Houston, Texas 77001 One Shell Plaza
Houston, Texas 77002
James Coffee
Legal Division John P. Traylor
Atlantic Richfield Company Amoco Oil Company
P. O. Box 2819 P. O. Box 3092
Dallas, Texas 75221 Houston, Texas 77001
CRETE ORRIN LO ONE AIM A AEE LL TLL RGAE 1 BS
17
CERTIFICATE OF SERVICE
I hereby certify that three printed copies of the foregoing
Petition for Writ of Certiorari to the United States Court
of Appeals for the Fifth Circuit has been mailed this
30th day of August, 1975, postage prepaid to:
Edmund S. Clark, Esq.
Attorney at Law
Department of Justice
Washington, DC 20530
Solicitor General
Department of Justice
Washington, DC 20530
John Bonine
Office of General Counsel
Air Quality Control
Room W-509
Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
Ski a ses RE SEER NPS EE OF
STATE OF TEXAS et al., Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
NO. 73-3540
United States Court of Appeals,
Fifth Circuit
Aug. 5, 1974.
* * *
[293]
BELL, Circuit Judge:
This case requires that we resolve a major dispute
between the Environmental Protection Agency and the
State of Texas, several of that state’s political subdivisions,
and numerous of its corporate citizens. The difficulties
arose after the EPA determined that Texas’ own air
quality implementation plan for control of photochemical
oxidant pollution’ would not assure the attainment of
1. Photochemical oxidants constitute one of several classes of pol-
lutants identified in 40 C.F.R. Part 51 for which implementation
plans are required, but are the only class at issue in this litigation.
They are comprised of various chemical compounds and are respon-
sible for the phenomenon commonly known as “smog.” These pol-
lutants, which can cause breathing difficulties and eye irritation, de-
A-2
federal ambient air quality standards by May 31, 1975,
as required by Section 110 of the Clean Air Act Amend-
ments of 1970, 42 U.S.C.A. § 1857c-5 (1974 Supp. ).
Pursuant to its statutory authority and duty,” the EPA
disapproved the Texas plan and issued proposed regula-
tions which would, in its opinion, insure attainment of
the air quality standard. These regulations adopted the
measures contained in Texas’ plan, but also imposed
additional controls. After holding public hearings, the
EPA promulgated final regulations which in some respects
reflected concerns and priorities revealed at the hearings,
but which nonetheless imposed on five of the six involved
air quality control regions (AQCR’s)* requirements more
severe
rive their name from the process 7 which they are formed, to wit,
oxidation reactions triggered by sunlight and involving nitrogen oxide,
hydrocarbons and atmospheric oxygen. Since sunlight and oxygen
can’t be controlled, and nitrogen oxide is difficult to control, strategies
aimed at photochemical oxidants rely on control of hydrocarbon
emissions. These emissions occur during the production, storage, trans-
portation and use of a variety of petroleum products. For more detail,
see the EPA publication, AP-63, Air Quality Criteria for Photochem-
ical Oxidants.
2. 42 USCA § 1857-5(c) (1974 Supp.).
The structure of the 1970 Amendments, the criteria against which
state plans must be considered, and the duties of the EPA have been
discussed by this court in Natural Resources Defense Council, Inc. v.
EPA, 1974, 489 F.2d 390 at 394-396 (stayed by U. S. Supreme Court
June 12, 1974).
3. Texas is divided into 12 AQCR’s but we are concerned with
only 6. Five of the remainder are classified as Priority III for photo-
chemical oxidants, and thus the state’s implementation plan need not
assure that they attain the national standard. See 40 C.F.R. §§ 51.3
(b) (1) (iii), 51.14. The twelfth region was included in Texas’ plan,
but was not dealt with in the agency action here under review. The
omission occurred because that AQCR also encompasses southern
Louisiana, and actions concerning it were delayed until the EPA
could consider Louisiana’s plan.
OY HRUE teraaT ReNR ARDC: gee REE thao Le
A-3
[294]
than those in the Texas Plan. See 38 Fed.Reg. 30633-51
(Nov. 6, 1973).
Twenty-five separate petitions for review were timely
filed, and all have been consolidated into the case before
us. On Feb. 28, 1974, a panel of this court granted a stay
pending appeal as to those portions of the EPA’s regula-
tions which go beyond the state’s proposed plan. That
panel also ordered that this appeal be heard on an ex-
pedited basis. Since the measures in the state’s own plan
are not in dispute and have not been stayed, this litiga-
tion has not delayed their effectiveness. As we will discuss
specifically at several points in this opinion, these state
controls account for the bulk of the emissions reductions
needed to meet the oxidant standard.
The principal questions presented are whether it was
proper for the EPA first to determine that the state’s plan
was inadequate, and then to promulgate its own plan
incorporating more onerous regulations. While a negative
answer to the first question would settle the second ques-
tion, an affirmative answer to the first issue is not similarly
dispositive. It is possible that the EPA could properly de-
termine that Texas’ plan would not insure attainment of
quality standards, but would be arbitrary, capricious, or
beyond its authority, in its determination of the nature
and quantity of additional control measures. We hold
that the EPA determined in a legal and enforceable man-
ner that the state’s plan was inadequate. However, we also
hold that certain of the EPA’s additional regulations are
either invalid or must be deferred for further agency
consideration. The specific effects of our various holdings,
A4
on a region-by-region and regulation-by-regulation basis,
are summarized at the close of the opinion.
The factual issues are numerous and complex. We will
therefore first outline the elements of the dispute. We will
then address ourselves to the standard of review appli-
cable in this case, and will then proceed to a seriatim
discussion of the several contentions raised by petitioners.
THE DISPUTE IN OUTLINE
[1] Determining the measures required to meet air
quality standards for photochemical oxidants involves a
multistep analytical process. Initially, of course, it is
necessary to set the standards. These however may not
be challenged in this proceeding,* and petitioners do not
openly do so. The second step, since the control strategy
for oxidant pollution relies on control of hydrocarbon
emissions, see note 1 supra, is to determine the relation-
ship between the quantity of those emissions and the re-
sultant maximum level of oxidants.° This relationship
4. The national ambient air standard for photochemical oxidants
is expressed as 0.08 parts per million (ppm) of ozone, this being a
maximum one-hour concentration not to be exceeded in more than
one hour a year. While ozone is but one of numerous photochemical
oxidants, it is a readily measured one and is accepted as a reliable
indicator of overall oxidant pollution.
The standard was promulgated at 36 Fed. Reg. 22384 (Nov. 25,
1971), and is found at 40 C.F.R. § 50.9 (1973).
Under the provisions of 42 U.S.C.A. § 1857h-5(b)(1), petitions for
review of a national ambient air quality standard may be filed only
in the Court of Appeals for the District of Columbia.
5. For the sake of brevity, we will throughout this opinion refer
to “oxidants” when we mean “photochemical oxidants,” and to “max-
imum” oxidant concentration when we mean the second-highest con-
centration. The latter refinement reflects the fact that the national
standard permits one occurrence per year of a one-hour concentration
exceeding 0.08 ppm.
A-5
can be expressed as a “reduction model” which shows,
for each current maximum level of oxidant pollution, the
percentage reduction in hydro-
[295]
carbon emissions that is necessary to achieve the oxidant
air quality standard. These models are normally displayed
in graphical form, as illustrated in Figure 1. Petitioners
raise as an important issue the EPA’s choice of reduction
model.
x»
T
-
of photochemical
As
BARUEYE HEASUALO 1: heer PHOTOCHEMICAL OLIGANT CONCENTRATION. pee
yen2eed "LWOITO TWI!M9HIO1ONd HOD
OUVONVAS TWNOILYN BAZINDV 04 OFMINDIY SNOISSIND MOSM VIOWOAM MH MOLINGIY
Figure 1. Required hydrocarbon emission contro! as @ function
|
i |
;
pea
A-7
The next step is determination of where on the reduc-
tion model curve a given AQCR is located. That is, in
order to derive from the model the required reduction in
hydrocarbon emissions, the existing level of oxidant pol-
lution must be determined. We note, with some relief,
that the parties appear to agree on this point, so that the
reduction model issue is the only source of dispute as to
how great are the necessary reductions.
Finally, there must be a prediction of the effect, in
terms of reducing hydrocarbon emissions, of each control
measure. As will be discussed below, there is considerable
controversy on this point, especially as to the state’s pro-
posed requirements.
To summarize, petitioners and the EPA differ as to
the model which determines how great a reduction in
hydrocarbon emissions is necessary, and also as to how
effective in achieving the required reductions particular
measures will be. In general, the state’s calculations in-
dicate that the ambient air quality standards can be at-
tained in each AQCR through its Regulation V, impos-
ing extensive controls on stationary sources, such as fac-
tories and refineries.° The EPA’s position is that
6. These calculations assume, as they are permitted to do, 40
C.F.R. § 51.14(a)(1), that federal motor vehicle emission standards
will result in significant emission reductions independent of any meas-
ures contained in the state’s plan. Part of Texas’ difficulty in achiev-
ing the standards by 1975, without relying on transportation-related
controls, is that the compliance date for federal automobile emission
standards has been extended beyond 1975. Partly as a result of this,
and partly because a number of completely uncontrolled (pre-1968)
cars will still be operating in 1975, that year is the most difficult one
facing Texas. By 1977 a number of the measures required to meet
the 1975 deadline will be unnecessary. See table at 38 Fed. Reg.
17800 (July 3, 1973). However, the statute permits an extension of
a region’s deadline only if the standard can’t be met by “reasonably
A-8
[296]
the state not only underestimates the reductions required
to meet air quality standards but also overestimates
the reductions to be obtained by its plan. Thus the
EPA found it necessary in five of the six regions to
impose varying degrees of control on transportation-re-
lated emissions, and in one of those regions also to pro-
hibit the construction of additional stationary pollution
sources.
Finally, petitioners attack various of the EPA’s required
control measures on grounds more specific than their
general claim that the state’s calculations are correct and
its plan adequate. Part IV of this opinion will deal with
these more particularized issues, as well as with the related
issue whether the EPA erred in its failure to grant Texas
a blanket two-year extension of the target date for at-
tainment of the oxidant air quality standard.
1. THE SCOPE OF REVIEW
[2] While the parties do not seriously dispute the basic
standard of review, we think it wise for us to state that
standard before applying it to the issues before us. The
statute provides for review by the appellate courts of the
agency’s actions with respect to a state’s implementation
plan, 42 U.S.C.A. § 1857h-5(b) (1) (1974 Supp.), but
does not specify the standard of review. In this situation
courts have been applying the standard set forth in Citi-
zens to Preserve Overton Park v. Volpe, 1971, 401 U.S.
available alternative means.” 42 U.S.C.A. § 1857c-5(e)(1)(B). The
EPA considers certain transportation-related controls as being “rea-
sonabiy available.” Our own view of this issue is discussed below at
pp. 314-315, 317.
PRLS TOR pe BSI TIE tnd
A-9
402, 91 S.Ct. 814, 28 L.Ed.2d 136. See Buckeye Power,
Inc. v. EPA, 6 Cir., 1973, 481 F.2d 162, 170-171; Ap-
palachian Power Co. v. EPA, 4 Cir., 1973, 477 F.2d
495, 505-507.
Overton Park similarly dealt with review of agency ac-
tion which was based upon neither an adjudicatory hear-
ing nor the rulemaking provision of the Administrative
Procedure Act, 5 U.S.C.A. § 553.‘ Likewise, the statute
authorizing review did not specify the scope of review. In
these circumstances the Court turned to the generally ap-
plicable paragraphs of section 706 of the Administrative
Procedure Act, 5 U.S.C.A. § 706, characterizing these as
requiring “the reviewing court to engage in a substantial
inquiry.” 401 U.S. at 415, 91 S.Ct. at 823, 28 L.Ed.2d at
153. Three particular inquiries were specified: (1)
whether the action was within the scope of the agency’s
authority; (2) whether the agency conformed to pro-
cedural requirements; and (3) whether the agency deci-
sion was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 401 U.S. at 415-
417, 91 S.Ct. at 823, 28 L.Ed.2d at 153-154.
The first two of these requirements are relevant in the
case sub judice only to the validity of several particular
control measures imposed by the EPA to bring the Texas
plan up to its standards. The third, however, is of central
importance, being the basis for most of petitioners’ com-
plaints. We thus will quote the Court’s statement as to
what it involves:
7. The rulemaking before us is pursuant to the Clean Air Act
Amendments of 1970, 42 U.S.C.A. § 1857c-5 (1974 Supp.). Were it
APA § 553 rulemaking, the applicable standard would be that of sub-
stantial evidence. See 5 U.S.C.A. § 706(2)(E).
A-10
“To make this finding the court must consider wheth-
er the decision was based on a consideration of the
relevant factors and whether there has been a clear
error of judgment. . . . Although this inquiry into
the facts is to be searching and careful, the ultimate
standard of review is a narrow one. The court is
not empowered to substitute its judgment for that of
the agency.”
[297]
401 U.S. at 416, 91 S.Ct. at 823, 28 L.Ed.2d at 153.
[3] In applying this standard, our review must be based
not only upon the agency’s explication of “its course of
inquiry, its analysis and its reasoning,” Appalachian Pow-
er Co. v. EPA, supra, 477 F.2d at 507; Ely v. Velde, 4
Cir., 1971, 451 F.2d 1130, 1138-1139, but also upon the
full record before the agency. Overton Park, supra, 401
US. at 419, 91 S.Ct. at 825, 28 L.Ed.2d at 155. Only by
our own study of the record can we resolve the factual
disputes between the parties, much less hope to “engage
in a substantial inquiry” into the agency’s action.
We do add a caveat, however, while the Overton Park
mandate does require that we base our review on the entire
record before the agency, we do not interpret it to re-
quire that we plunge into the record unaided by the par-
ties. The record’s length is on the order of 10,000 pages,
and it is both technical and poorly organized. Lest we
make of this case a career, we must generally restrict our
consideration to the parties’ specific citations.®
8. To assure that this procedure did not cause us to reject con-
tentions for which support in the record does exist, we accorded
counsel for the parties a post-submission opportunity to supply us
with relevant citations. This hearing was in addition to oral argu-
ment and a pre-argument conference. Cf. Rule 33, F.R.A-P.
REI DIE LE LENGE LLLP
A-11
II. HOW GREAT MUST THE REDUCTIONS BE?
Petitioners first challenge to the EPA’s analysis con-
cerns its reduction model. As has been stated, this model
determines, for each pre-control level of oxidant pollution,
how great must be the reduction in hydrocarbon emis-
sions to attain the ambient air quality standard for oxi-
dants. The implementation plan submitted by the state
was based on a reduction model requiring, for a signifi-
cant range of oxidant pollution, considerably lower emis-
sion reductions than does the model used by the agency.
The result, as shown in Table 1, is that for four of the
six AQCR’s the EPA determined that the state’s reduc-
tion target was too low.*
TABLE 1
PERCENTAGE REDUCTION REQUIRED
Second-Highest EPA Reduction Texas’
1-hour ozone Model (straight Reduction
AQCR measurement _ rollback) Model
3 (Austin-Waco) 0.109 27 18
5 (Corpus Christi) 0.184 56 62
7 (Houston-
Galveston) 0.320 75 75
8 (Dallas-Fort
Worth) 0.120 34 24
(San Antonio) 0.145 45 40
11 (El Paso) 0.120 34 25
As a general matter, the EPA has required that states
use the reduction model contained in Appendix J to 40 C.
F.R. § 51.14 (1973). However, in sub-
9. Why the Texas model does not indicate lower reductions for
Regions 5 & 7 is explained below in note 14.
A-12
[298]
mitting its plan Texas utilized a different model on the
grounds that it was employing more sophisticated meth-
odology, based not on total hydrocarbons emitted into the
atmosphere, but rather upon hydrocarbon emissions which
react with nitrogen oxides to form oxidant pollutants.’°
Since it is only reactive hydrocarbons which contribute
to oxidant pollution, the Texas approach is theoretically
attractive. However, reactive hydrocarbons have not yet
been the subject of extensive pollution control study, and
the resulting lack of knowledge restricts the usefulness of
reactive hydrocarbon pollution control plans. One im-
portant unknown is the configuration of the appropriate
reduction model.
The EPA concluded that Texas’ reduction curve was
not supported by technical data, and was based on imper-
missible assumptions. However, rather than require that
Appendix J be applied to the reactive hydrocarbon
approach, it determined that the most reasonable model
to use in these circumstances would be the “straight roll-
back” model.
This model is essentially a method of coping with
inadequate information by assuming that reductions in
oxidant pollutants will be proportional to reductions in
10. Although the EPA doubts that any hydrocarbon other than
methane is completely nonreactive, it accepts that certain other hy-
drocarbons are sufficiently nonreactive to be disregarded, at least in
part, in formulating an implementation plan for Texas.
“Reactive hydrocarbons,” which completely excludes the nonreac-
tive component of total hydrocarbons, must be distinguished from
“nonmethane hydrocarbons,” which excludes only the single non-
reactive substance methane. While considerable data is available as
to the methane component of particular emission sources, and as to
the relation between nonmethane hydrocarbons and resultant oxidant
pollution, little data exists about reactive hydrocarbons.
OTS SEE TINT MN MR IY ENS IS OLR NI SIRE CLA IY RT IR ANE re to
A-13.
reactive hydrocarbon emissions. The agency does not
contend that the model is an accurate representation of
reality, but it does contend that there is no information
to support divergences from it, either in the direction of
higher reduction requirements, as with Appendix J and
part of the Texas curve, see note 14 infra, or in the
direction of lower reduction requirements, as in the case
of most of the Texas curve. Basically the EPA’s position
is that in the absence of contrary indications, and given
the statutory necessity of accepting some model, the
simplistic proportional rollback model is a reasonable
resolution.
We will first consider the agency decision to reject
the model on which Texas based its plan. We will then
consider the agency’s use oi the straight rollback model.
A.
In rejecting Texas’ reduction model the agency pointed
out defects which have not adequately been answered on
this appeal. Initiallv, for all practical purposes the state
supplied no theoret, J or empirical support for its novel
model."* Upon furths inquiry, the EPA learned that the
11. Material accompanying the state’s plan when it was trans-
mitted to the EPA merely stated that, “A reactive carbon compound
control strategy is employed and an oxidant non-methane hydrocar-
bon relationship was formulated using the publication Air Quality
Criteria for Nitrogen Oxide (AP-84) as the basis.” Record, page 4188.
It is understandable that this statement, combined with the Texas
model, might confuse the EPA, for the only relevant data in the cited
publication is the very data from which the EPA derived its Appendix
J reduction model.
Texas’ brief also cites us to a study entitled “Hydrocarbon Control
Strategies for the State of Texas.” The context of the citation indi-
cates that the study should explain the derivation of the Texas re-
duction model. We have reviewed this 85-page document, but have
found no such material.
SR.
heey bey a opt OTER
j Ay agate SS OTA ER AS RERUN So “ARNO EAR A EDR IPI ML PLETE VAIL IE ONE RIL PEL IIE NRO PER
A-14
state had modified Appendix J'* by grasping upon the fact
[299]
that no reliable data exists connecting hydrocarbon emis-
sions and relatively low maximum levels of oxidant pol-
lution (below .13 ppm but above the national standard
of .08 ppm). Faced with this same information gap, the
EPA had determined, by a method which is not disclosed
in the record, that a maximum oxidant level of .08 would
be associated with a nonmethane hydrocarbon concen-
tration of .17 ppm. By contrast, the Texas model as-
sumed the appropriate figure to be in the neighborhood
of .20 or .21—the level of hydrocarbons which Appendix J
associates with an oxidant pollution level of slightly below
.10 ppm.”* The effect of this assumption, for the four
12. The state’s brief contends that its curve improves on Appen-
dix J because it is derived from data in AP-84 which relates oxidant
levels with nonmethane hydrocarbons whereas, according to the state,
Appendix J is based on different data in AP-84 relating oxidant levels
to total hydrocarbons. The only difficulty with this proposition is that
Appendix J also was derived from the AP-84 data dealing with non-
methane hydrocarbons. The state’s confusion is excusable, however,
since nothing in 42 C.F.R. Part 51 discusses the derivation of Ap-
pendix J, and the instructions for its use refer only to “hydrocarbon
emissions reduction,” not “nonmethane hydrocarbon emissions reduc-
tion.” See 42 C.F.R. § 51.14(c)(4). Also contributing to the confu-
sion is the EPA’s carelessness in distinguishing between total and
nonmethane hydrocarbons. For example, in the preamble to the final
promulgation of its Texas regulations the EPA states that “the data
base embodied in Appendix J was derived from oxidant and total
hydrocarbon areometric data” (emphasis added). 38 Fed. Reg. 30627
(Nov. 6, 1973).
We have verified that Appendix J was derived from the nonmethane
data in AP-84 by comparing it with that data and also, pursuant to
an understanding amongst the parties, by obtaining information from
the EPA personnel who actually created Appendix J.
13. On this basis the EPA concludes that the Texas plan in effect
sets .10 as the oxidant level to be achieved. This is true only if
Appendix J is accurate in setting .17 ppm as the nonmethane hydro-
carbon concentration associated with .08 ppm maximum oxidant pol-
OLGA I OMNI LE LP YD LNT LS AYMAN MENU POUT NTN ARDY FREE MGATT RON SEINE A IEW NES WAIN
———
A-15
regions below .15 oxidant concentration, was to signi-
ficantly lower the necessary reduction in hydrocarbon
emissions,'* as shown. in Table 1, supra.
lution. On the record before us we are unable to determine whether
.17 is accurate, or even more accurate than the state’s figure of .20
or .21 (or the .24 used by Harris County in a post-argument sub-
mission). However, we need not determine which is most accurate,
for our concern is solely whether the agency’s rejection of Texas’
model was arbitrary and capricious.
We add a note of caution: our characterization of how Texas de-
rived its reduction model is somewhat speculative, since Texas has
not seen fit to explain either its calculations or assumptions. Our
understanding of the Texas model is somewhat different from that
of the EPA, although it is based on the EPA’s version of interviews
with state officials, as well as on our own study of the model. It is
roughly consistent w'.h the reduction requirements submitted by Tex-
as, and also gives Texas more credit for attention to theoretical nice-
ties than does any alternative.
14. While the difference between .17 and .20 may seem small, it
is very significant at the lower hydrocarbon concentrations. For ex-
ample, if the existing nonmethane hydrocarbon level in a region is
.25 ppm, the .17 figure requires a reduction of 32 per cent [(.25-.17)
+ (.25) = (.08) + (.25) = .32], while .20 requires a reduction of
only 20 per cent [(.25-.20) + (.25) = (.05) + (.25) = .20].
That the Texas model does not indicate lower reduction require-
ments for Regions 5 and 7 may be briefly explained. As the oxidant
pollution level increases, the effect of the difference between .17 and
.20 becomes less significant, and the Texas curve closely approaches
Appendix J (which, after all, is based on the same data). In fact,
Texas apparently abandoned any distinction above oxidant levels of
.17 ppm. Appendix J requires greater hydrocarbon reductions than
does a straight rollback model, and this is especially true above oxi-
dant levels of .15 ppm. The result is that for Region 5 (.184 ppm
oxidant level), the Appendix J/Texas model requires a 62 per cent
reactive hydrocarbon reduction, while the EPA’s straight rollback
model requires only 56 per cent.
As for Region 7, both models indicate an identical 75 per cent
reactive hydrocarbon reduction because, for oxidant concentrations
above .28 ppm, both the Appendix J and Texas models adopt the
straight rollback approach. The EPA permits this for two reasons:
first, little data exists relating these very high oxidant levels to ante-
cedent hydrocarbon concentrations; second, such data as is available,
and reasonable extrapolations from data for the lower pollution levels,
indicate reduction requirements approaching 100 per cent. This effect,
as well as the basic characteristics of the various reduction models
relevant to this litigation, is also apparent from Figure 2.
Se RE RRR YA acme: RITA poanernrenat ateveenatwg AS ARAAR ANSE APMIS MESLSAORY AMIS LOE RAITT SAAN LO OPE ER
6
1
[300]
A-
(waa e432 Aq umerzp sy)
STaAGOW MOWETIOW NOGUVOOUGAH JO NOSIUWdWOD °Z auNnDra
(wdd) NOLLWULRIROD LNVGIXO TIWOINSHDOLOHd UNOH-T WOWIXYh
| ee hie i Ee soe gee Toi eas
ih (uoT{erQUeDU0D
| ye oe: auepTxo “T°
| a @aoge sexeL pure)
cf xtlanadav
oOo
-
&
a
8 .
PERCENT REDUCTION IN HYDROCARBON REQUIRED
R
‘TO ACHIEVE OXIDANT STANDARD
S
A-17
[301]
[4] We can summarize the situation confronting the
agency when it chose to reject Texas’ reduction model.
The model was novel, yet unsupported by data, theory,
or even meaningful explanations. It purported to be ap-
propriate for nonreactive hydrocarbons, yet was explicitly
based on data for nonmethane hydrocarbons.’* Finally,
it was significantly different from the model the EPA
derived from the same data, and even if the EPA model
was not known to be accurate, it was part of a promul-
gated regulation which had been subjected to prior public
scrutiny and comment. In these circumstances we cannot
conclude that the agency’s rejection of Texas’ model was
arbitrary or capricious.
B.
[5] We must now consider the EPA’s use of a straight
rollback model, which model it acknowledges to be based
upon a simplistic assumption rather than experimental
data or proven theory. While we are uneasy that such an
unreliable construction should be the basis of wide-ranging
government action, we do not consider the use of the
straight rollback model to be arbitrary and capricious.
The statute requires implementation plans which will
insure attainment of the national air quality standards.
To design such plans it is necessary to utilize some model
relating reductions in antecedent emissions to resulting
reductions in pollutant concentrations. In the absence of
sophisticated information, the EPA has been forced to
15. As discussed above in note 10, methane is but one of a num-
ber of nonreactive hydrocarbons.
A-18
rely on crude assumptions. We cannot object, for it is
not our role to judge whether the EPA’s projections are
accurate, but only whether they represent arbitrary or
capricious exercises of its authority. Necessity, which has
mothered the EPA’s invention of this model, also protects
it from a judicial insistence on greater reliability.**
Further, we think it significant that the straight rollback
model is, in an important sense, neutral, in that it estab-
lishes as a starting point the common-sensical proposition
that pollutants will be reduced proportionally to reduc-
tions in their chemical precursors. Deviations from this
assumption are to be permitted or required only when
supported by empirical data or sound theory. Such a
stance is not arbitrary and capricious, and is readily ac-
cepted by Texas for maximum oxidant concentrations
above about .28 ppm (as discussed in note 14 supra, for
these high pollution levels the EPA permits states to
abandon Appendix J and use the much less stringent
straight rollback model; it does so not only to avoid
disruptive reduction requirements, but also because no
solid data relates oxidants and hydrocarbon emissions for
these high levels).
[6] To summarize, we conclude that the EPA was
not arbitrary or capricious in its decisions to reject Texas’
proposed reduction model and to substitute a straight roll-
back model. By this conclusion we support the agency’s
determination that higher emissions reduction targets are
required in Regions 3, 8, 9, and 11, as indicated by Table
1 above.
16. Decisions which are not arbitrary and capricious in the light
of existing knowledge may become so by dint of scientific advances.
By its use of estimations and sparse data, the EPA creates a con-
tinuing responsibility to develop, review and apply updated and more
sophisticated information.
GL TT ERE BEF RETIN TTY FORE RTE TIO I EIN OTT eR i
PI
A-19
Ill. REDUCTIONS TO BE OBTAINED
The second broad source of controversy between the
state and EPA concerns the reduction in hydrocarbon
emissions expected from the state’s control of stationary
sources. While the EPA’s analysis exacerbates the problem
in Regions 3, 8, 9, and 11 (in which the EPA reduction
model in any case requires higher reduction targets), its
impact is at its greatest in Region 7, the Houston
[302]
ACOR. In Region 7 both the state and the EPA used a
proportional rollback model,'’ and they thus agreed that
the implementation plan must insure a 75 per cent re-
duction in reactive hydrocarbon emissions. However, they
do not agree on the reduction to be obtained from Texas’
Regulation V, which controls stationary sources. While
Texas believes this will result in a 75 per cent reduction,
the EPA puts the figure at 65.5 per cent. Thus the EPA
has required additional control measures aimed principally
at transportation-related emissions.
As with the case of the appropriate reduction model,
this controversy has its roots in Texas’ reactive hydro-
carbon approach. The problem arises in determining the
reactive component of total hydrocarbon emissions from
each emission category. In general, the agency has deter-
mined that reactive hydrocarbons constitute a smaller
percentage of total stationary source emissions than has
the state, and thus that stationary sources are responsible
for a smaller percentage of overall reactive emissions.
For example, in Region 7 the EPA calculates that 294,000
17. See note 14, supra.
PERE cies. 1th AOE: OA PRTERRRES SSG ARENT RRS ETT SLI ES
A-20
tons per year of reactive hydrocarbons are emitted from
stationary sources, and 106,000 tons per year from mobile
sources. This compares with the state’s calculations of
481,000 and 99,000, respectively."* Translated into per-
centages, the EPA attributes 73 per cent of total reactive
emissions to stationary sources, while the state attributes
83 per cent. The result of the EPA’s calculations is that
the state’s highly effective Regulation V, unaided by
ion-related controls, does not affect a suffici-
ently large proportion of the total to achieve the 75 per
cent overall reduction.
As we did in the case of the reduction model contro-
versy, we will approch the question in two stages. We
will first consider the agency's rejection of Texas’ cal-
culations, and then consider petitioners’ challenges to the
calculations actually used by the EPA.
A.
The state’s plan, as originally submitted, was quite
summary in nature. It simply stated existing and projected
reactive hydrocarbon emissions. The only explanation
was by way of reference to a study entitled “Hydrocarbon
Control Strategies for the State of Texas,” Document 4
of the record.
The referenced study to some extent does deal with
determining the reactive component of each source cate-
gory’s total hydrocarbon emissions. Of critical importance
are the chemical processing and refinery categories. The
study states, “For fixed chemical sources the reactive emis-
sions were determined from a review of the inventory,
18. All data is for 1972, which is the base year for Region 7.
SEE LISLE OLR LS ELE EIEIO ai
TO aE oy ee
A-21
source by source, for the significant emitters. For re-
finery sources the basis from the Radian Report was
used.”
Bolstering Texas claim, that it determined the reactive
component of chemical sources by separately considering
each source, is a rather confusing table which lists plant-
by-plant emissions for the Harris County chemical in-
dustry.””
[303]
For large sources the table contains three columns, with
the headings “Emission Inventory,” “Adjusted Inventory,”
and “Reduced Inventory.” Nowhere does the study define
the significance of each column, although it is clear that
“Reduced Inventory” is the final reactive inventory. While
a note to Texas’ table seems to indicate that many of the
“Emission Inventory” entries were already reduced for
“expanded to encompass all affected Regions,” no source-by-source
data was included in the study for any other region.
The record does contain a document entitled “Report on Hydro-
carbon Study for Control Strategy for Industry Point Sources in Re-
ion 7” (Document 14). This report is identical to material in “Hy-
E
EPA’s attention during its consideration of the region-wide report
was prepared some 5} months prior to the Harris County material
submitted with the Texas plan.
Our disposition of this case is not affected even if we assume that
Seana Se wie
Q
:
:
i
af
iE
— Foe ae PNT PERS MELA LEE I I ELE LEGER LESLIE RES AOE
eee
A-22
nonreactive hydrocarbons, it is by and large only these
entries which show reductions as one moves from the
“Emission Inventory” column to the “Reduced Inventory”
column.
An additional difficulty with the source-by-source data
in the supporting study’s tables is that nowhere is it speci-
fied whether the tables contain 1970 raw data or adjusted
data for 1972.2° The result is to restrict even further the
meaning and usefulness of these tables.
So far as we can determine, Texas never presented to
the agency additional material demonstrating how its
source-by-source survey was conducted and why it should
be accepted as reliable. Further, the results produced by
Texas’ methodology were suspect by comparison with ex-
isting data from other states. Whereas studies of chemical
industries in California and Louisiana showed reactive
hydrocarbons to constitute about one-half of total hydro-
carbon emissions, Texas’ Harris County “Reduced Inven-
tory” equaled 86 per cent of its “Emission Inventory.””*
20. The study itself states that Texas obtained its 1972 data by
increasing 1970 data 20 percent (to account for underreporting) and
then applying a growth factor. The tables containing the source-by-
source information are from a separate report and were appended to
the study merely to illustrate the method used by Texas, and do not
necessarily state the study’s results. Yet these tables, and the ex-
planatory material accompanying them, make no mention of either
growth or underreporting adjustments.
21. Similar calculations using Document 14, discussed in n. 19,
yield 75 per cent. Whether these figures have as much significance
as the EPA accorded the 86 per cent figure is open to question. We
have already indicated how confusing and poorly-defined are the tables
from which they were derived.
As for the percentage of total chemical processing emissions which
Texas actually claimed as reactive, we cannot say. It is indicative of
how poorly documented was the state’s plan that nowhere do there
appear any figures for total hydrocarbons or for reactive hydrocar-
SRT NR NTS SBN esse Bic GD NS A ETE NS
A-23
[7, 8] We conclude that the EPA was not arbitrary or
capricious when it rejected Texas’ chemical processing
reactive hydrocarbon inventory. The figures submitted by
Texas were not only apparently quite different from those
expected by the EPA, but they were unsupported by in-
telligible explanations or source material. We recognize
the possibility that we are doing Texas an injustice by this
decision, for it may be that in fact its calculations can be
supported. However, this is a factual matter subject to
proof. If Texas is correct we are confident that it can pre-
sent its supporting data in a sound, orderly and convinc-
ing manner.” No such presentation having been made in
this proceeding, we will not order the EPA to accept re-
sults which are apparently at odds with existing knowledge
of the reactive/nonreactive makeup of chemical plant
hydrocarbon emissions.
[304]
When we turn to the state’s data regarding refineries,
we find that it is even sketchier and more conclusory than
that for chemical processing. As quoted above, the study
supporting the Texas plan stated that to determine the re-
active component of hydrocarbon emissions it had used
bons broken down by source category (the data submitted with
Texas’ plan includes a single, reactive hydrocarbon figure for “Point
Sources” for each region; “Point Sources” consists of eight source
categories, including chemical processing and petroleum refining). In
short, it is impossible to determine for each category the percent of
total emissions claimed as reactive in the state plan. This is true
even when one supplements the state’s data with the EPA’s own
figures for total hydrocarbon emissions from each source category.
22. The method by which Texas may now seek acceptance of its
chemical processing inventory is the submission to the EPA of a re-
vision of the plan that results from this litigation. See 42 U.S.C.A.
§ 1857c-5(a) (3).
= s A Sart s
CRN ory es “ 5c DL aS Ba RM a LOMO St a oat LF LRAT OI
A-24
“the basis from the Radian Report,” a study presented to
the EPA in 1972 by a Texas consulting organizatt ion. The
use in this context of that report is difficult to understand.
As far as we can tell, it deals strictly with total hydro
carbons and provides neither data nor methodology for
calculating the reactive component.** While the supporting
study (Document 4) does include a table which ap
parently purports to list the reactive emissions of each
Harris County refinery, there is no explanatory or source
‘al ided.2*
As with chemical plants, the Texas reactive hydrocar-
bon inventory for refineries is not only supported by the
sketchiest and most conclusory of data, but it yields re-
sults quite different from those anticipated by the EPA on
the basis of its knowledge of similar sources in other
states. Whereas the EPA calculates that all refineries in
Region 7 emit 17,000 toms per year of reactive hydro-
carbons (12 per cent of total hydrocarbon emissions of
142,000 tons),”° the state apparently claimed some 131,-
000 tons for Harris County refineries alone.
[9] We conclude that the EPA was not arbitrary or
capricious when it rejected Texas’ calculations for refinery
Harris County refinery—of the five instances in which a particular
refinery appears on each list, in two the study’s reactive inventory
is sli larger than Radian’s total inventory, and in one it is much
SP LEGEIECLI SL LG BER IES
A-25
emissions. This is not to say that Texas’ very high figure
is incorrect. Rather, our decision turns on Texas’ failure
to provide persuasive support for data which was incon-
sistent with results in other areas.
Given our disposition of the chemical processing and
refinery categories, which are the principal sources of disa-
greement between the state and the EPA as to reactive
hydrocarbon inventories, we think it unnecessary to con-
sider other, minor, EPA objections to Texas’ data. We
turn now to the issue whether the EPA, having reason-
ably rejected Texas’ inventory calculations, was arbitrary
or capricious in its own calculations of the inventories on
which it based the promulgated regulations.
B.
Since no studies have inventoried the actual reactive
content of specific emission sources in Texas,** the EPA
determined the reactive component by applying a “re-
activity factor” to total hydrocarbons. The reactivity fac-
tor is a number, running from 0 to 1.0, which indicates
the degree of reactivity of a source’s hydrocarbon emis-
sions. As shown in Table 2, the factors vary widely, both
between different types of emission sources and between
the EPA’s and state’s estimates for identical sources. In
obtaining its reactivity factors, the EPA looked to “the
relationship between reactive and non-reactive components
for identical processes and sources in other areas of the
country.” 38 Fed.Reg. 30634 (Nov. 6, 1973).
26. This disregards the state’s claim that it has performed such
a study. As already discussed, it was not arbitrary and capricious
for the EPA to reject this data, given the nature and sparseness of
supporting material.
A-26
TABLE 2
EPA TEXAS
Area Sources
(dry cleaning, degreasing,
painting, etc.) By } 1.0
Point Sources
Chemical processing 6 .86*
Petroleum refining 12 7
Ship and barge loading 4 av
Other 6
Transportation Sources
Gasoline exhaust ) .75 8
Diesel exhaust 45 8
Aircraft 38 8
Gasoline evaporation 65 4
Railroads 45 8
Vessels 8 8
Off-highway 45 8
* According to EPA. But see note 21, supra. As discussed above,
the state claims to have used a source-by-source inventory method
rather than the EPA’s method of applying a reactivity factor to
total hydrocarbons.
** Neither stated by Texas nor calculated by the EPA. As discussed
above, the state claims to have used a source-by-source inventory
method rather than the EPA’s method of applying a reactivity
factor to total hydrocarbons.
*** According to EPA, but not stated as such by Texas.
Before this court petitioners claim that the agency was
arbitrary and capricious in its methods of constructing
hydrocarbon inventories. Principally, this claim arises
from the contention that the EPA displaced the state’s
source-by-source study of the very emission sources to be
controlled, and substituted data based on general reactiv-
Nemes tt errneeeenrpmanmmenen cote
PREP SNES EA AOE SIG LER LIE IP ORE NYS HI UORIE LAH BG IME EA? HER PERNT TAY Ds RR RIM
. be Mee at 3) NF TAT De RAYE 6
A-27
ity factors derived in other parts of the country and ap-
plicable only to broad categories of emission sources;
petitioners further contend that not only did the EPA use
improper reactivity factors, but it also applied them to
inventories which had already been reduced to eliminate
many nonreactive hydrocarbons. The initial portion of
this contention is nothing more than the claim that the
state’s reactive inventories should have been accepted, an
issue just dealt with and which need not be discussed
further. The second portion questions the validity of the
EPA’s reactivity factors and the appropriateness of the
inventories to which the factors were applied, and must
now be considered. From the briefs it appears that peti-
tioners genuinely challenge only the resulting inventories
for chemical processing and petroleum refining.
1. The Chemical Processing Reactive Inventory
As indicated in Table 2, the EPA applied a reactivity
factor of 0.6 to chemical processing emissions. This figure
was derived from empirical studies of chemical industries
in Los Angeles and Louisiana, studies which yielded fac-
tors
[306]
of .52 and .47 respectively.*” The EPA used a 20 per
27. We have inspected these studies to determine that they deal
with broadly similar industries. However, we have not inquired into
their validity or into how closely matched are the profiles of emissions
from the studied industries and those in Texas. While these latter
inquiries may be relevant to the reliability of the EPA’s calculations,
they are not necessary to our determination of whether it has acted
arbitrarily and capriciously. These are complex matters which are
beyond our ken absent the assistance of the parties. Petitioners have
objected only in general terms to the EPA’s use of these studies, and
the agency has responded appropriately and adequately.
2 _ siniceiemeniene AMEN CHE PILL ID LP ERLE AIRTEL DLS LCL LE
Fy RE 6 0 Oe ai Deters PRESSOR RE RTS GE NL NOE ET SLE ae
A-28
cent higher figure, which in this context benefits Texas, to
give the state “every benefit of the doubt” and to account
for having eliminated two minor sources of methane from
its Region 7 total hydrocarbon inventory. See note 30
infra.
[10] Petitioners’ only specific criticism of the 0.6 figure
is that because the emissions from individual chemical
plants vary considerably in reactivity, “it is unjustified to
characterize an entire industry by a single reactivity fac-
tor.”** Even granting that the reactivity factor for par-
ticular plants may be quite different from 0.6, we think
it not unreasonable for the EPA to adopt that figure on
an industry-wide basis. The figure 0.6 represents an aver-
age, and accounts for the fact that the individual figures
which go into that average may be higher or lower. So
long as 0.6 is applied to the sum of total hydrocarbon
emissions from a representative array of chemical plants,
its use is proper. Noting that petitioners present no em-
pirical or theoretical material which suggests that typical
emissions from the Texas chemical industry are substanti-
ally more reactive than those in Los Angeles and Louis-
iana, we conclude that the agency’s use of 0.6 was not
arbitrary or capricious.
However, this determination alone does not settle the
propriety of the EPA’s final reactive inventory for chem-
ical processing. Under the agency’s methodology reactive
inventories are derived by applying the reactivity factor
to an initial hydrocarbon inventory which should include
the nonreactive hydrocarbons sought to be excluded by
use of the factor. Petitioners urge that the EPA has ap-
28. Statement presented by the Texas Air Control Board, during
public hearings on the EPA’s proposed regulations, at 10.
- _
ss DEBE SP SORE TEM NITE BRITE BURIED Ac MY A IPED Se: AeA NB Sik RLY GP tem en eG Nd str
A-29
plied its reactivity factor to an inappropriate initial in-
ventory; specifically, they contend that a factor designed
for use with total hydrocarbon inventories was applied to
an inventory that had already been reduced by the most
significant nonreactive hydrocarbons. At stake here is a
very large portion of the difference between the EPA’s
Region 7 stationary source reactive inventory of 294,000
tons/year and the state’s inventory of 481,000 tons/year
—by applying the .6 factor to its Region 7 chemical pro-
cessing initial inventory (429,000 tons/year), the EPA
eliminated 172,000 tons/year from an inventory peti-
tioners claim is wholly reactive.
[11] To resolve this conflict we have as a result of a
post-argument conference obtained from the agency a
step-by-step explanation of the method by which it de-
veloped its initial chemical processing inventory. This ex-
planation was complete with the actual numbers used at
each step, and enabled this court to trace back to the
origins of the final result. In this way we have determined
that the agency’s initial inventory of 429,000 tons/year
was not, as the state claims, based on reduced, reactive
emission data. The EPA inventory is basically the sum
of total hydrocarbon emissions from each Region 7
chemical plant, adjusted to reflect growth since the orig-
inal data was assembled.”® This to-
29. As stated in note 30, a relatively minor reduction was made
for two obvious methane sources. The effect of this was accounted for
with the use of a 0.6 reactivity factor, rather than .52 or .47.
The post-argument reconstruction of the calculation process yielded
a figure 4,900 tons/year higher than that relied on by the agency.
Use of the revised calculations would result in a 2,900 tons/year
higher stationary sources reactive inventory and about 0.1 per cent
lower reduction requirements. Although small, the effect of the error
could not ordinarily be disregarded since the EPA seeks to impose
control requirements contributing only 0.1 per cent reductions. How-
A-30
[307]
tal hydrocarbon data was not reduced on the basis of
Texas’ own reactive inventories for Harris County plants
(submitted with the Texas plan), despite EPA statements
which quite understandably led petitioners to believe this
had been done.*® In short, the agency applied its 0.6
ever, we will not in this instance require agency reconsideration so
long as this error is completely offset by another error uncovered
during the reconstruction, this one significantly benefiting petitioners.
A 36,500 ton/year refinery source was treated as a chemical plant,
apparently as a result of carelessness on the part of both the agency
and the state. Because the chemical plant reactivity factor was .6,
while that for refineries was .12, the error added about 17,500 tons/
year to the agency’s Region 7 stationary source reactive inventory.
30. The agency’s principal original explanatory document contains
the following statement: “The Harris County emissions were updated
to reflect the results of a source by source review of petroleum re-
fineries and chemical plants within the county which reduced the
inventory for the obvious sources of methane like hydrocarbons, ben-
zene, acetylene and methyl alcohol.” Photochemical Oxidant Control
Strategy for Texas (Document 30), part II, p. 2-2 (Record page
3407). Further contributing to the conclusion that the EPA’s initial
Region 7 inventory was reduced by the most important non-reactive
hydrocarbons, at least for Harris County sources, is Document 30’s
explanation of why a 0.6 reactivity factor was chosen rather than
the .52 or .47 figures developed in the Los Angeles and Louisiana
studies. “A reactivity factor of 0.6 was used in this study, since the
Texas inventory was adjusted to eliminate obvious methane sources.”
Id., at 2-4 (Record page 3409).
At the June 12 conference this court received a memo from Jack
Divita, Chief of the EPA’s Air Program Branch. Thé memo purports
to describe the derivation of EPA’s initial chemical processing in-
ventory, and states:
“To ensure completeness this [total hydrocarbon inventory] was
compared with the Harris County inventory based on a source-
by-source review prepared by the State (Document 4). This
inventory was used for purposes of comparison only. The tech-
nical support document . . . should not be interpreted to mean
that the Harris County inventory included in Document No. 4
was used as the data base by EPA.
“EPA used a reactivity factor of 0.6 for chemical processing.
This factor was chosen to give the State every benefit of the
—
A-31
reactivity factor to an appropriate
doubt. . . . The number of 0.6 was not chosen to account for
a non-methane data base.”
Subsequently, at the request of this court and pursuant to an
understanding amongst the parties, another Divita memo was sub-
mitted, this one backed up with worksheets and the computer print-
out used as the principal source for EPA calculations. The second
memo and its supportive material confirm that the agency inventory
is essentially total hydrocarbons, although it does modify the first
memo in several ways. For one, the agency in fact did use, in place
of the printout data, some entries from the source-by-source review
in Document 4. However, the entries used were reasonably thought
to be total hydrocarbon figures, by virtue of comparisons with the
printout’s 1970 data; indeed, the net effect of using this data was
to increase the agency’s chemical processing inventory. Second, in
the instance of two carbon black plants total hydrocarbon data was
eliminated because it was known to be methane. These reductions,
which amount to only 11,000 tons, are offered in the second memo
as the explanation for the statement in Document 30 that a 0.6
reactivity factor was used because the inventory “was adjusted to
eliminate obvious methane sources.”
Since our review is for the purpose of determining whether an
agency determination is arbitrary or capricious, we are constrained
to consider the EPA’s post hoc statements. After all, they are not
the post hoc rationalizations of agency actions which “have tradition-
ally been found to be an inadequate basis for review.” Citizens to
Preserve Overton Park v. Volpe, 1971, 401 U.S. 402, 419, 91 S.Ct.
814, 825, 28 L.Ed.2d 136, 155. Rather, they are statements which
establish what the agency did, not why it did it. Were we to dis-
regard them we would be reviewing not the agency’s actual action,
but rather a different action (further reduction of a reactive hydro-
carbon inventory) that it in fact never took. While we are very
concerned that both petitioners and this court have been temporarily
misled and confused by the agency’s original language, we cannot be
diverted from our responsibility to review that which the agency
actually did.
We have of course satisfied ourselves that the impression created
by the earlier version is incorrect. Presumably the misleading word-
ing resulted from carelessness, or poor communication between the
EPA and the contractor responsible for Document 30. We accept
the memos’ version because their description is backed up by the
actual calculations and worksheets required to derive the EPA’s in-
ventory from computerized listings of total hydrocarbon emissions
for each Region 7 chemical plant. We have thus been able to deter-
mine for ourselves that in formulating its inventory the EPA made
no significant reduction to account for nonreactive hydrocarbons.
Fo ETS TP OG RRR EES EL
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A-33
2. The Petroleum Refining Reactive Inventory
[12] As in the case of chemical processing the EPA de-
rived its refining reactive inventory by applying a reactivi-
ty factor to an original, presumably total, hydrocarbon in-
ventory. However, we need only deal with the first element
of this procedure to determine that the agency must re-
consider this portion of its Texas calculations, for we have
concluded that the agency’s choice of reactivity factors
was arbitrary and capricious.**
In choosing its factor the EPA again looked to Louisi-
ana and Los Angeles data. The factors for these areas
were .18 and .12 respectively, and the EPA chose .12 for
Texas. The agency has not explained why the lower figure
was chosen and no “benefit of the doubt” was given.
The record reveals that at least the following objec-
tions to the .12 factor were made before the agency: (1)
that the Los Angeles study was outdated, being based on
1955-58 data and preceding both significant changes in
refinery
[309]
technology and considerable additional emissions inven-
tory research; (2) that Texas refineries have a product
mix different from those on the west coast, and are more
32. Petitioner Harris County suggests in its brief that the in-
ventory to which the refinery reactivity factor was applied had al-
ready been reduced to eliminate at least some non-reactive hydro-
carbons. As we did with the EPA’s chemical processing inventories,
we have obtained memoranda from Mr. Jack Divita, Chief of the
EPA’s Air Program Branch, outlining the steps taken by the agency
in deriving the figure it used as the Region 7 initial refinery in-
ventory. If this information has not satisfied petitioners’ doubts,
they should raise the matter before the agency during its reconsidera-
tion of its choice of reactivity factor.
¢ 28 ET aE
es Pe ER a nt Pont ty
A-34
heavily oriented toward highly reactive substances; (3)
the bulk of Texas refinery emissions are gasoline vapors
from tank farms, and thus the .12 factor is inconsistent
with the .65 factor used by the EPA for gasoline emis-
sions from other sources.
The only EPA response to any of these criticisms is
directed to the third point. The agency denies that there
is any inconsistency by explaining that Texas refinery
emissions include little gasoline, and that most are low-
reactivity emissions from refinery feed stock and products
other than gasoline. According to the EPA, the low gaso-
line content is due to the fact that in Texas gasoline evap-
oration is already kept at a minimum by the use of stor-
age tanks with floating roofs which raise or lower to ac-
commodate the expansion or contraction of gasoline vapors.
We believe that the state’s objections deserve more con-
sideration, and their rejection more explication, than has
been accorded by the EPA. We are strengthened in this
view by several further points. First, the state submitted
data raising the possibility that the EPA’s reactive refinery
emission inventories were grossly low. Fcc one thing, al-
though the state generally did not break its inventories
down by source category,”* it did supply what apparently
to be a reactive refinery inventory for Harris
County.** As has already been noted in this opinion, that
figure was 131,000 tons/year, compared to the EPA's
reactive inventory of 17,000 tons/year for all of Region
7 (Region 7 contains three refineries located outside of
Harris County). While the state’s inventory was not bols-
33. But see the discussion of Document 14 in note 19 supra.
34. It is unclear whether this inventory represents 1970 raw data
or the state’s final adjusted 1972 data. See note 20 supra.
A-35
tered by sufficient data or explanation to require agency
acceptance for all purposes, see pages 303-304, supra, the
magnitude of the difference should have alerted the EPA
to the possibility that the state’s objections to .12 were
well-founded. The same alert should have resulted from
Texas data showing that one Region 7 refinery had a re-
activity factor of .26—*° given that there are only ten
refineries in Region 7, the large difference between the
one refinery’s factor and the EPA’s presumed average
factor required consideration and explanation.
Our consideration of whether the agency has been ar-
bitrary and capricious in developing its refinery reactive
inventories is affected by a background factor. This fac-
tor is the significance of those inventories to the agency’s
calculations and resulting control requirements. Our analy-
sis indicates that the principal difference between the agen-
cy’s and the state’s Region 7 stationary source inventories
arises right here. That difference is 187,000 tons/year
(48' ,000-294,000). Data submitted with the state’s plan
shows that the difference between EPA’s Region 7 reac-
tive inventory (17,000 tons/year) and the apparent state
Harris County reactive refinery inventory (131,000 tons/
year) accounts for 114,000 tons/year; presumably a sig-
nificant additional portion is accounted for by emissions
from the Region 7 refineries which are not in Harris
County and thus do not contribute to the state’s 131,000
figure.**
35. Statement presented by the Texas Air Control Board on
Transportation Controls Proposed for Texas at 10 (Aug. 15, 1973).
36. Document 14, discussed above in note 19, indicates that the
state apparently claimed a region-wide total of 173,000 tons/year.
As with the Harris County inventory, it is not clear whether this
figure is 1970 raw data or the state’s final adjusted 1972 data. See
note 20 supra.
a
— YR CATES a rec ii LP RE NT OSL OR = REE OOS Pe
A-36
Further indication of the importance of the EPA’s
choice of petroleum refining reactivity factor is the effect
a different factor would have on the additional controls
required in Region 7. According to our own calcula-
tions,*” the
[310]
use of .18 would eliminate the need for most, and .26 for
all, of the transportation controls; the use of .65 would
relieve Region 7 of both the land-use and transportation
controls.**
37. See note 39, infra.
38. The following chart lists the additional controls required for
Region 7 by the EPA regulations, along with their corresponding
1977 percentage reductions in reactive hydrocarbon emissions.
40 C.F.R. Subject Matter 1977 Reduction
52.2284 Degreasing operations 0.6%
52.2285 Vapor recovery during gasoline
delivery to storage tanks 1.5
52.2287 Vapor recovery during
ship and barge loading 2.7
52.2288 Vapor recovery during
automobile refueling 1.3
52.2290 Vehicle inspection and
maintenance 0.8
52.2291 Retrofit of pre-1968 automobiles 0.8
52.2292 Restriction on new or modified
emission sources 1.2
52.2293 Gasoline rationing 0.1
52.2294 Bus/carpool lanes 0.1
52.2295 Parking supply management 0.1
52.2296 Bus/carpool matching and
promotion 0.1
52.2297 Employer-supplied incentives
for use of mass transit 0.1
9.5*
* Actual total of listed figures differs, due to effect of rounding.
Regulations §2.2284-52.2291 are emission source controls, regula-
tion 52.2292 is a land-use control, and the balance are transporta-
a sags Ro ere een : . .
SORRENTO 8 8S TURE LONE BUTI Bry tee ESTE A NRT RTE
A-37
[13] In these circumstances it was arbitrary and capri-
cious for the EPA to disregard Texas’ objections to its
refinery reactivity factor. Those objections must be con-
sidered and answered before regulations based upon that
factor may go into effect. We now turn to the question
of exactly which regulations are so based. In making these
determinations we have calculated the effect in each re-
gion, in terms of reduced need for additional control
measures, of higher refinery reactivity factors. Our com-
putation method is discussed in the margin.**
tion controls. The latter should be distinguished from “transporta-
tion-related controls,” a descriptive term which includes such ve-
hicular emission source regulations as 52.2285 and 52.2288-52.2291.
“Transportation controls” is a statutory term referring to measures
which reduce emissions by reducing vehicular travel rather than
by reducing the emissions which result from each vehicle mile
traveled. See 42 U.S.C.A. § 1857c-5(a)(2)(B).
39. Our calculations were based on the total refining emissions
inventory for the baseline year in each region, as shown in Tables
6-1 through 6-6 of Document 30, Part II. In each instance, the
appropriate entry was multiplied by .65, yielding a revised refinery
reactive inventory. The figure .65 was chosen as the hypothetical
refinery reactivity factor in order to test the effect of agency re-
consideration against the very highest factor that has some basis in
the record before us. We in no sense are suggesting that .65 is the
correct factor, nor are we establishing a presumption that the EPA
should adopt such a factor. Rather, we use this figure simply to
accord petitioners complete interim protection against the possibility
of being required to comply with regulations which eventually prove
unnecessary.
In each region the revised reactive refinery inventory was sub-
stituted for the original EPA inventory (based on .12 and shown in
the baseline year “Reactive” column of the above-referenced tables),
resulting in an increased baseline inventory in each region. For this
purpose, the initial baseline inventories were those shown in Tables
7-2, 8-2, 9-2, and 10-2 of Document 30, Part I. (These are identical
to baseline year reactive “Grand Total” entries in Tables 6-3 through
6-6, when the addition errors in these latter tables are corrected.)
The revised baseline inventories were divided into the tons/year re-
ductions expected from each EPA control measure, as listed in
; gees Ad SP RESET FEILER OA TR a ae
. Skee STIs SS ORD SE ATES IIT SRE LEP PE ee .
A-38
[311]
Region 3 ( Austin-Waco)
Since the Region 3 reactive hydrocarbon emission in-
ventory contains no refinery emissions, no regulations in
this region are affected by the .12 factor.
Region 7 (Houston-Galveston )
We calculate that a .65 reactivity factor would increase
the effectiveness of Texas’ plan by 2.4 per cent, so meas-
ures resulting in at least this great a reduction must be
held in abeyance pending agency reconsideration.“ Since
Tables 7-2 through 10-2. The result was smaller percentage reduc-
tions for each measure (except where the change was so minor as. 10
fall within the rounding off to tenths of percent); this effect of a
higher baseline inventory is reflected in notes 40 and 41.
To determine the effect of a 65 factor on reductions obtained by
Texas’ own plan, the revised reactive refinery inventories were
multiplied by .9, reflecting the 90 per cent effectiveness of Texas’
plan on refinery emissions. This revised reduction (in terms of tons/
year) was substituted in Tables 7-2 through 11-2 for the EPA’s
original reduction estimates based on a .12 factor (these were deter-
ined by taking 90 per cent of the baseline year reactive retry
sn anecened need for additional controls is measured by the extent
to abich each region’s target is exceeded by the sum of the revised
percentage reductions for each measure.
40. For this purpose we calculate that each regulation contributes
the reduction shown in the following table. These percentages are
derived by dividing the tonnage reduction expected from each regula-
tion by a baseline reactive emission inventory of 476,000 tons/year.
The latter figure reflects the 75,400 tons/year increase created by
ree ning 65 per cent of Region 7 refinery emissions to be reactive.
A-39
land-use and transportation controls are to be employed
only when “necessary,” 42 U.S.C.A. § 1857c-5(a)(2)
(B), and not in place of available direct emission source
limitations, Natural Resources Defense Council, Inc. v.
EPA, 5 Cir., 1974, 489 F.2d 390, 406-409, regulations
52.2292 through 52.2297 must supply the first 1.5 per
cent. The remaining 0.9 per cent may be supplied, for
the time being, by regulation 52.2288 (vapor recovery
during vehicle fueling), because we are in any case re-
quiring the agency to reconsider that regulation. See pages
315-316 infra. However, the choice of measures to defer
is ultimately for the agency. Should it complete its recon-
sideration of 52.2288 prior to reconsideration of the re-
activity factor, and should it wish to repromulgate that
regulation, it may select for deferral other regulations con-
tributing reductions of at least 0.9 per cent.
Region 8 (Dallas-Fort Worth)
Refinery emissions are a small part of total hydrocar-
bon emissions in this region, and we calculate that even
a .65 factor would improve 1977 performance of Texas’
plan by only 0.4 per cent. This figure is well under the
reduction to be obtained by the least effective of the EPA’s
additional controls. We therefore think it unnecessary to
defer any agency regulations pending final dis-
52.2284 0.5
52.2285 13
52.2287 23
52.2288 1.1
52.2290-52.2291 1.3
52.2292 1.0
52.2293-52.2297 0.5
A-40
[312]
position of the reactivity factor controversy. In light of
the small figure involved, and of the liberality of a .65 re-
activity factor, and in light of our disposition, infra, of the
gasoline marketing regulations in this region, it is more
appropriate for any effect of a larger factor to be ac-
counted for in Texas-initiated agency proceedings to mod-
ify the implementation plan which we herein approve.
See 42 U.S.C.A. § 1857c-5(a) (3).
Region 9 (San Antonio)
Calculations based on a .65 reactivity factor increase
the Texas plan’s 1977 reductions by 2.6 per cent. The
EPA’s transportation regulations (52.2293-94, 52.2296-
97) are designed to obtain a 4.1 per cent reduction.”
We thus defer the effective date of these controls pend-
ing agency reconsideration. The remaining regulations,
all of which deal with direct emission sources, need not
be deferred.
Region 11 (El Paso)
A .65 refinery reactivity factor would yield additional
reductions from the Texas plan of 6.3 per cent. Trans-
portation controls in the EPA’s regulations produce a 3.0
per cent reduction,** and must be deferred. The EPA plan
achieves the balance of the requisite 34 per cent reduc-
tion by requiring vapor recovery in gasoline marketing
operations (regulations 52.2286, 52.2288). Since a sub-
stantial potential for lowered additional requirements
41. This figure reflects the fact that use of a .65 refinery re-
activity factor increases a region’s baseline reactive hydrocarbon in-
ventory.
ates? 8 De oegehtare mapetnthe tee ge
PRE ANG RR 2 IRN RNR I a Sg PR Rig MR ch Ee SR a a AOE VF AY Be
wm
i 2)
_—
A-41
exists in this region even after elimination of transporta-
tion controls, we believe that the gasoline marketing regu-
lations should also be deferred. In addition, deferral is ap-
propriate for a second reason, that of reconsideration of
regulations 52.2286 and 52.2288 in light of the discussion
on pages 314-315 and 318, infra.
IV. SPECIFIC REGULATIONS
Our disposition of the refinery reactivity controversy
pretermits many but not all of the specific challenges to
particular EPA regulations. We will now address the re-
maining issues of this nature on a region-by-region basis.
To the extent required by the factual setting and the
contentions of petitioners, we will consider two matters
for each regulation. The first is whether the agency’s pro-
mulgation of a particular regulation exceeds its author-
ity. The second is whether the effective date of a particu-
lar regulation should have been postponed until May 31,
1977, in accordance with the state’s request for the two-
year extension authorized by 42 U.S.C.A. § 1857c-5(e).
While subsection (e) does not compromise the Clean
Air Act’s absolute command that the national ambient
air standards be met by 1977, it does provide some flexi-
bility for the period between 1975 and 1977. As we read
the subsection it recognizes that technological advances by
1977 might render unnecessary, as of that date, onerous
control measures which are needed to meet the standards
by 1975. Subsection (e) provides a mechanism for sub-
jecting such measures to a reasonableness test. This ser-
ves, in our opinion, to protect the public against waste-
fully heavy expenditures on control measures which by
1977 would be outdated and unnecessary.
a
A-42
To obtain an extension a state must submit an imple-
mentation plan theoretically meeting the 1975 target, but
relying on control of emission sources which in fact are
unable to comply because “the necessary technology or
other alternatives are not available” until a later date.
[14, 15] Further, the state must consider and apply in
its plan “reasonably available alternative means” of at-
taining the standard by 1975. Before granting the exten-
sion, the EPA Administrator must determine that the
state’s plan satisfies the foregoing requirements, and that
it applies by 1975 all control measures included in it for
which the technology is available. He must also deter-
[313]
mine that the plan employs all interim measures that are
“reasonable under the circumstances” for control of those
sources whose inability to meet the 1975 target is the basis
of the extension. The net effect of these provisions is that
the agency may not force** a state to adopt measures
needed during the 1975-1977 period merely because they
are available, but only if they also are reasonable.
In the case before us, the state submitted a plan which
would, according to its calculations, attain the standards
by 1975, but which placed “significant emphasis on the
reductions to be achieved from Federal controls on mo-
tor vehicles.” Letter from the Governor of Texas, dated
April 13, 1973, and accompanying the state’s plan. Re-
cognizing that the impact of these controls would increase
42. While measures determined to be unreasonable may not be
forced upon a state, apparently nothing precludes their voluntary
adoption—as might happen if a state preferred such a measure to
one validly determined to be reasonable.
ELE IY I AT EA PPE AIL FT GAN SENN ONL PETRA I ERB 3 75
4.
—
A-43
through 1977, see note (6) supra, the governor requested
an extension “in order to take the maximum advantage of
the Federal controls on automobiles.”
The EPA concedes that its automotive emissions stand-
ards will result in significantly higher reductions from
auto sources by 1977, and that certain of its additional
requirements for Texas are needed only if the standard
must be met by 1975. We therefore think that the only
issue before us with regard to Texas’ extension applica-
tion is whether these “interim”** control measures are
“reasonably available.”** As discussed
43. Our use of the term “interim” is somewhat different from
that in paragraph (2)(B) of subsection (e). As it appears in this
opinion it refers not merely to measures for the temporary control
of those sources for which more effective technology should be
available by 1977. It also refers to those measures of permanent
effect which are initially required only to meet the standard before
1977. The principal exampie of such an “interim,” albeit permanent,
measure is the requirement for vapor recovery during gasoline
marketing operations. To recover these vapors for a one or two-year
period requires a capital investment in equipment that will be
available for many years thereafter.
44. It could be argued that we are ignoring a technical require-
ment of subsection (e) by going straight to the merits of the decision
to deny an extension. While the agency does not raise this argument,
we think we should briefly address it in light of Natural Resources
Defense Council, Inc. v. EPA, 1973, 154 U.S. App. D.C. 384, 475
F.2d 968. The statute requires that a state submit a plan imple-
menting the national ambient air standard by 1975. When submitting
such a plan the state may seek an extension for the reasons stated
in the text. As discussed in Parts I & II of this opinion, in this case
the agency determined, validly, that the state plan did not implement
the national standard.
Nonetheless, we will not rule that Texas is ineligible for an
extension until it submits another plan which in fact implements the
standard.
In the first place, the statute is inherently ambiguous, by virtue
of its failure to specify whether the plan with which the extension
4 application is submitted must receive EPA approval prior to con-
; sideration of the extension. That it would be inappropriate to require
4
3
"
a SELL LOE LN GELLER ee
A-44
[314]
in Part I of this opinion, we must approach this question
in terms of whether it was arbitrary or capricious for the
agency to determine that its interim measures were reason-
able.
Region 3 (Austin-Waco)
The required reduction in reactive hydrocarbons for
this region is 27 per cent. The EPA calculates that the
such approval as an absolute rule is suggested by the fact that even
an approved implementation plan as contemplated in subsection (e)
provides only for theoretical attainment of the standard, not attain-
ment in fact. Second, to require another submittal from Texas would
be pointless, for Texas’ original plan, its request for an extension,
and its brief all make it abundantly clear that in meeting the standard
Texas wishes to rely as heavily as it can on the effects of federal
control of automotive emissions. Further, since the state’s strategy
has long been clear, persons who object to this approach have had
ample opportunity to comment and to have whatever impact they
would be likely to have if the state implementation process were
repeated. Finally, our failure now to address the merits of this
issue could produce either further delay before the final adoption
of a plan, or the use of techniques which are contrary to the statu-
tory concern, expressed in subsection (e), that interim measures be
forcibly employed only if reasonable.
We also decline to order resubmittal on the basis of a second
potential technical objection, that Texas apparently did not submit
a plan imposing or relying on motor vehicle requirements which
would not be met by 1975. See 42 US.C.A. § 1857c-5(e) (1) (A).
Rather, Texas appears to have calculated the additional reductions
required as of 1977 based on projected independent reductions in
motor vehicle emissions. We think this sufficient, both for the reasons
stated in the preceding paragraph, and also because vehicle emissions
control is being accomplished independently of Texas’ plan, such that
its effect is more appropriately treated as a background factor than
an integral part of that plan. While subsection (e) is principally
aimed at cushioning states against unreasonable measures when the
controls they impose cannot be fully effective until after 1975,
we think it properly applicable to the kindred situation presented
here—that in which the post-1975 reductions are accomplished by
control measures or other factors independent of the state’s own plan.
%
YUE gS het .
a a a ke tie Sts * : OMe rh
PEGE RLM ANNE FIG HA AB MIE oe NE
’
A-45
Texas strategy would achieve a 19.4 per cent reduction by
1975. In order to reach 27 per cent the agency has re-
quired that Texas Regulation V be extended to additional
counties (for a reduction of 3.8 per cent), and that vapor
recovery systems be installed to eliminate emissions when
transferring gasoline from tank trucks to service station
storage tanks (also contributing 3.8 per cent).
The EPA calculates that the Texas strategy alone would
achieve the 27 per cent reduction by early 1976, and that
by 1977 it would produce a 30.3 per cent reduction. An
agency chart indicates that further reductions would be
accomplished in each succeeding year through at least
the early 1980's. It is thus clear that the agency’s re-
quirements are interim measures which must be subjected
to the test of reasonableness.
In considering this issue we think the starting point
must not be simply whether an interim measure is physical-
ly available. Rather, it must be cost of each regulation.
Otherwise, we cannot understand the statutory distinc-
tion between longterm measures, which must be applied
before 1977 if “available,” and interim measures which
must be applied only if “reasonably available.” See 42
US.C.A. § 1857c-5(e)(1). Cf. Natural Resources De-
fense Council, Inc. v. EPA, supra, which mandates that
economic cost or technical feasibility are always to be
subordinate to considerations of public health under the
Act, 489 F.2d at 411, but which does not involve the
precise issue of interim measures being “reasonably avail-
able” under § 1857c-5(e)(1).
[16] Document 30 informs us that the total cost of
vapor recovery in Region 3 would be approximately 3
million dollars (at the $2,000 per station figure given in
n="
A-46
the commentary to the final promulgation, 38 Fed.Reg.
30637 (Nov. 6, 1973), the cost is close to $5,000,000).
Document 30 also states that the extension of Regulation
V would “involve a significant addition to capital expendi-
tures by the affected industries.” The agency has con-
sidered these costs, and believes them reasonable as com-
pared with costs of physically available alternatives, in
terms of emissions reductions obtained per dollar ex-
pended. However, we do not think that awareness of total
cost and selection of relatively cost-effective measures are
sufficient for determining that an interim measure is rea-
sonable. We think that that decision must also involve at-
tention to the fact that the reductions obtained by these
expenditures are needed only for a short period of time.
The EPA balanced the cost of its regulations against re-
ductions to be obtained throughout the life of a control
device. However, it is more appropriate in this circum-
stance to consider cost in terms of the period of time
during which the reductions provided are needed to meet
the national standard.
{315]
[17, 18] Viewed in this framework we think it impos-
sible to conclude that the EPA’s additional regulations for
Region 3 are reasonable, and we conclude that the
agency was arbitrary and capricious to deny an extension
because of the physical availability of these measures. In
reaching this conclusion we are moved not only by the
requirement of a substantial investment for a speedup of
less than one year in attaining the standards, but by sev-
eral other factors as well. For one, we take judicial notice
of the facts that this is a period in which investment cap-
A-47
ital is scarce and inflationary pressures are severe. In ad-
dition, not only are we currently experiencing a variety
of raw material shortages, but the particular control de-
vices necessary to comply with the vapor recovery regula-
tions are themselves in short supply—indeed, other Texas
regions have for this reason been granted an extension un-
til 1976 for implementing vapor recovery.“
Our decision does not relieve the agency of the deter-
mination required by paragraph (2)(B) of subsection
(e). This paragraph specifies that when an extension is
granted because adequate control of a particular source
is not available by 1975, that source must be subjected
to “such interim measures of control . . . as the Adminis-
trator determines to be reasonable under the circum-
stances.” Here the particular source is motor vehicles.
Should the Administrator determine that vehicle controls
are reasonable during the post-1975 interim created by
the extension, he must promulgate regulations implement-
ing them. The determination of reasonableness should in-
volve consideration of the factors identified above, relat-
ing not only to total cost but also to the period of time
over which necessary reductions would result from a given
expenditure.
Region 7 (Houston-Galveston)
As set forth above, we are deferring the effectiveness of
transportation and land-use controls incorporated in EPA’s
promulgated regulations. We thus need not consider var-
ious challenges to them. It is also the case that EPA has
granted the two-year extension sought by Texas for Re-
gion 7. Therefore, we need only concern ourselves with
4S. 38 Fed. Reg. 30635, 30638, 30640 (Nov. 6, 1973).
i. oOo
a sm , ,
A-48
the emission source regulations which are challenged by
petitioners, these being those which require vapor recovery
during ship and barge loading and during the filling of
vehicle gasoline tanks. Since both of these regulations
could go into effect immediately, or at least prior to com-
pletion by the agency of its reconsideration of the refinery
reactivity factor, see page 311 supra, we will address our-
selves to the issues raised.
The automobile refueling vapor recovery regulation re-
quires, for Region 7, 90 per cent recovery of hydrocarbon
vapors. While the regulation itself does not specify, the
agency has stated that this goal must be attained for each
and every vehicle filled (save for certain types of vehicles
which are not compatible with standard control equip-
ment). “Response to Comments,” April 1974, Document
427, p. 6. This latter requirement precludes reliance on
techniques which could meet the 90 per cent goal on an
average basis, but not for every vehicle. According to
petitioners the effect is to require the use of more complex,
expensive and hazardous equipment.
[19] The agency has not contested that its regulation
will likely require the more complex techniques. It does
contend that a complex system exists which (1) is vir-
tually ready for on-line use, (2) is safe, and (3) is not
excessively expensive. The record is such that the first
two determinations are not arbitrary and capricious. How-
ever, the third cannot be sustained on the record and EPA
explanations.
The agency’s principal counter to petitioners’ cost ob-
jections is the carbon adsorption system. It considers this
system to be only somewhat more expensive than the sim-
ple, but less effective, dis-
—
A-49
[316]
placement system.“* The agency's technical support docu-
ment does bolster the proposition that initial capital out-
lay is not a great deal more ($5,065 versus $6,900 per
Station for existing stations). Document 30, Part II pp.
5-6 through 5-9. However, at page 5-9 we are told that
the cost effectiveness for the simple system is $0.19 per
Ib. of vapor recovered and 0.14¢ per gal. of gas pumped.
The carbon adsorption system compares rather poorly, at
$0.34 per Ib. of vapor recovered and 0.25¢ per gal. of gas
pumped. Further, the more expensive system is expected
to achieve only 3 per cent greater recovery than the dis-
placement system (79 per cent versus 76 per cent in 1977,
and 98 per cent versus 95 per cent in 1985). Based on
this information Document 30 draws the following con-
clusion:
“From these figures it is obvious that [simple dis-
placement] represents the most efficient technique for
motor vehicle vapor recovery. [Carbon i
and another complex system] offer additional recov-
recoveries is very high.”
The agency apparently ignored this conclusion, making
no reference to it although imposing a regulation which
requires a complex system. While such a system may be
necessary, despite its high incremental cost, it has not been
= , ee SOP PALL RSE
A-50
justified in this rule-making. Further, the agency has also
failed to explain why it is unwilling to accept compliance
with the 90 per cent target on an average basis—where
the average basis adequate, complex systems apparently
would be unnecessary. Thus this regulation must be re-
considered; should the agency choose to repromulgate it
without change, there must be satisfying explanations of
why an average recovery of 90 per cent is unacceptable,
and why some slightly lower target has not been adopted
in order to avoid the “very high” incremental costs of
complex systems.**
The other regulation which is specifically challenged
pertains to the control of hydrocarbon emissions during
the loading and unloading of ships and barges using port
facilities within Region 7. Certain private petitioners as-
sert that EPA lacks statutory authority with respect to
ships and barges. Moreover, they assert, all jurisdiction
over the safe operation of marine vessels is vested in the
Coast Guard. See 46 U.S.C.A. § 391a.
They also contend that control technology is not avail-
able and will not be during the short time allotted for
implementation of the requirement. Finally, they allege
discrimination in that the Houston-Galveston area has
been singled out among all American ports for these emis-
sion controls and their possible adverse effect on the use
of ports in the region.
47. Weare told that regulations for vapor recovery during vehicle
refueling are under agency review on a nationwide basis. However,
the agency wished to stand on the record in this case, on the grounds
that the information generating the review was not available when
the Texas regulations were promulgated and thus should not affect
the initial validity of those regulations.
A-51
[20] We have carefully considered the language and
scheme of the statute as well as the legislative history.
This requirement is a part of an implementation plan and
such a plan under the Act must assure attainment of am-
bient standards by employing “emission limitations, . . .
and . . . other measures . . . including but not limited
to, land-use and transportation controls.” 42 U.S.C.A.
§ 1857c-5(a)(2)(B). It is true that vessels were elimin-
ated from the Senate bill by a conference committee, but
the elimination occurred in a portion of the bill prescrib-
ing the establishment of nation-
[317]
al uniform standards for new automobiles, aircraft and
vessels. See 1970 U.S. Code Cong. & Admin. News, pp.
5356, 5381. This subchapter, appearing in its final form
at 42 U.S.C.A. §§ 1857f—1 to 1857f—12, must be dis-
tinguished, as a separate element of the overall attack on
air pollution, from subchapter 1 which requires implemen-
tation of ambient air quality standards on a region-by-
region basis. In particular, the § 1857f national standards
concern only motive power and associated emissions, not
the myriad of emissions which degrade ambient air quality
in a particular region, such as those from the loading
and unloading of vessels.
[21] Likewise, there is no merit in the suggestion of
a lack of authority due the Coast Guard’s responsibility
for safety regulations. The commentary to the regulation
in question recognizes the necessity of agency/Coast
Guard cooperation in establishing emission controls for
marine sources. 38 Fed.Reg. 30636 (Nov. 6, 1973).
There is no indication that the EPA will attempt to invade
a
A-52
the domain of the Coast Guard or otherwise interfere
with or jeopardize its provisions for maritime safety.
Only a short time was allowed by the EPA for impie-
is not presently available, although it is suggested by
the technology used in controlling evaporative losses dur-
ing the transfer of gasoline from tank trucks to service
station tanks and thence to automobiles. There is no basis
whatever in the record for concluding that a compliance
date of May 31, 1975 is technologically feasible, and it
may well be that this requirement must be postponed.
However, we do not believe that this fact makes the regu-
lation arbitrary or capricious, for 42 U.S.C.A. § 1857¢c-
5(f) contemplates plans which require control measures
of less than certain technological feasibility. That section
specifies procedures for obtaining a postponement of com-
pliance dates for particular sources, and it is through
those procedures that petitioners must seek relief.
[22] The simple fact that the ship and barge regulation
discriminates against Region 7 is irrelevant, for the statu-
tory scheme clearly contemplates that heavily polluted
areas will be subject to more burdensome implementation
plans. Petitioners’ argument does go farther, however, and
objects that this discrimination will shut down Region 7’s
refinery industry. Assuming this objection is relevant, we
think it premature. On the present record it was not arbi-
trary or capricious for the agency to conclude that the
region’s refineries will continue to attract required ship-
ping resources, albeit at the somewhat higher price re-
quired to induce tanker owners to make the necessary
adaptations. Should future events indicate that this con-
clusion is erroneous, or that vapor recovery is technologi-
i ciao ee noe
a
A-53
cally impossible, and that Region 7 refineries are threat-
ened with closure, the state may adopt a revision of its
plan, under 42 US.C.A. § 1857c—5(a) (3). Agency
approval of such a revision would of course require that
other controls be substituted to assure attainment of the
national ambient air standard.
In sum, we do not find the ship and barge regulation
to be arbitrary and capricious on the present record.
Region 8 (Dallas-Fort Worth)
For this region a 34 per cent reduction in hydrocarbon
emissions is required. According to the EPA’s calcula-
tions, the Texas strategy would result in a 22.5 per cent
reduction by 1975, a 27.7 per cent reduction by 1976
and 33.1 per cent by 1977. According to a chart in Docu-
ment 30, the progressively more effective federal auto
emission controls would by some time in late 1977 boost
the reduction under the Texas strategy above 34 per cent,
and reductions would continue into the early 1980's.
To make up the short fall, the EPA required extension
of Regulation V to an additional county (resulting in a
1.8 per cent reduction), and vapor recovery during gaso-
line marketing operations ( contributing 8.1 per cent).
However, since
[318]
equipment for the vapor recovery regulations was not
expected to be available for installation by 1975, the
region was granted an extension until June 30, 1976.
Because applying Regulation V to an additional county,
plus the Texas strategy, would together produce reduc-
Se. , et ROTA SEE A
A-54
tions exceeding the 34 per cent target by 1977, the gaso-
line marketing regulations would be completely unneces-
sary were the requested two-year extension granted. In
considering whether it was arbitrary and capricious for
the agency to deny the extension, we note that denial
requires an expenditure in excess of $41,000,000, but
that the period during which the benefit of this expendi-
ture is needed is only eleven months (June 30, 1976 to
May 31, 1977).
[23] For the reasons discussed when faced with this
issue in Region 3, we conclude that the agency’s deter-
mination was arbitrary and capricious. The extension
should have been granted and Region 8 should not have
been subjected to the gasoline marketing vapor recovery
regulations. Whether interim vehicle controls should be
imposed is a matter for the agency. See 42 USS.C.A.
§ 1857c-5(e) (2)(B); p. 314-315 supra. The promulgated
regulations do contain three interim transportation con-
trols, based on an agency determination of reasonableness
and required because of the 13-month extension it granted
in this Region. Before these regulations can be effective
the agency must reconsider their reasonableness in light
of the standards discussed at pages 3 14-315.
[24] The remaining additional regulation for Region 8
is extension of Texas Regulation V to Tarrant County.
Although it is expensive, and although its effect is needed
only for a short period of time after May 31, 1977, the
statute’s command is absolute that all necessary measures
be taken to attain the air standards by that date. There-
fore, this court cannot disturb the agency’s promulgation
of the regulation.“
48. If Texas believes that the reductions to be obtained from
extending Regulation V in its entirety to all of Tarrant County are
MS gee was —_
> PESOS EEE REELS. IE TSE IY AT EF
»
A-55
Region 9 (San Antonio)
[25] The agency granted the state’s request for a two-
year extension in this region. Even at the end of that time,
and for the foreseeable future, controls in addition to the
Texas strategy will be necessary.
Since we concluded in Part III of this opinion that
transportation controls for Region 9 must be deferred
pending agency reconsideration of the refinery reactivity
factor, we are concerned here only with source controls
required in addition to the Texas strategy. These are
control of degreasing operations, vapor, recovery in gaso-
line marketing operations, and an inspection and main-
tenance program for light duty vehicles. The only specific
challenges which we have found amongst the myriad of
petitioner’s briefs are to the regulation requiring vapor
recovery during vehicle fueling. This regulation affects
Region 9 in exactly the same fashion as it does Region 7.
For exactly the same reasons we gave when considering
that region, we require similar agency reconsideration.
Region 11 (El Paso)
[26] By virtue of our disposition of the reactivity factor
controversy, we deferred the only additional control mea-
sures required in this region. As indicated at page 312
supra, these regulations should also be reconsidered in light
of our discussion of what constitutes a “reasonably avail-
able” control measure for the purposes of subsection (e).
According to EPA calculations, the Texas strategy alone
not needed to meet the standard as of May 31, 1977, and that
expenditures needed only to meet the standard prior to that date
are not reasonable in light of this court’s discussion of that subject,
it may present its position to the agency through a 42 U/S.C.A.
§ 1857c-5(a) (3) revision proceeding.
A-56
would meet the reduction target by 1977. Further our
disposition of the vehicle refueling regulation, in Regions
7 and 9, is applicable in this region.
[319]
V. OTHER ISSUES
There remains for consideration a miscellany of matters
with which we may briefly deal.
Certain petitioners have submitted a motion to strike
various portions of the record. In particular, their motion
is directed at the agency’s technical support Documents
30 and 31, which were compiled and made available
only after the regulations were promulgated. If these
documents contained new data which was not available
when the agency made its determinations, the motion
would have merit. However, these documents are state-
ments of agency methodology and compilations of in-
formation which was in the record when the determina-
tions were made. For this reason the motion to strike
is hereby denied.
Petitioner Exxon has pressed arguments based upon
three facts related to the agency’s ozone measurement
procedures: (1) that different techniques for measuring
photo-chemical oxidant pollution yield, in certain cir-
cumstances, widely varying results; (2) that the standard
of .08 ppm is not altered for areas which record high
background levels of ozone; and (3) that reduction re-
quirements are based on oxidant pollution levels which
occur during air stagnation episodes. While the parties
present arguments on the merits of these attacks, we
need not reach them. Since the challenged procedures
les tg wi TT fon Sn EE oe Oe a aie” sR Ca ka ee a Aa
A-57
comply with, and probably are mandated by, the pub-
lished national standards, 40 C.F.R. § 50.9, petitioner’s
attack is basically directed at those standards. 42 U.S.C.A.
§ 1857h-5(b) makes it clear that ours is not the proper
forum for review of such challenges.
Realizing the restrictions on raising objections to the
national standards, petitioner Exxon has also incorporated
its criticisms of the agency’s measurement procedures into
a somewhat more sophisticated and substantial argument
that the agency has been arbitrary and Capricious. The
argument is that by virtue of the alleged deficiencies, as
well as by virtue of the numerous uncertainties involved
in determining the appropriate reduction curve and the
reductions to be obtained by specific measures, the margin
of error of the agency’s calculations is so large that it
was arbitrary and capricious to impose control measures
which contribute only the relatively small reductions
specified in note 38 supra. As we have indicated else-
where in this opinion, we are well aware of the EPA’s
use of projections, assumptions, and flimsy data. However,
we do not think that the margin of error inherent in the
agency’s calculations precludes its promulgating the regu-
lations which remain in this case after our disposition
of the other issues. Our reasons are several. For one,
as we have already noted, the agency’s use of uncertain
data is necessary if it is to perform its Statutory duty.
In these circumstances we can only require that its data
be the best that is feasibly available.*
A second reason for rejecting the margin of error argu-
ment is that margins of error cut both ways—the argu-
49. As we stated in note 16, this aspect of the agency’s power
imposes a correlative duty to reconsider and revise its requirements
as better data becomes available.
————
A-58
ment provides just as much support for the proposition
that the Region 7 target should be 85 per cent as it does
for petitioner’s proposition that the state’s strategy would
produce reductions so close to the target that any short-
fall should be disregarded. Especially is this relevant
when we recognize that at several key points in develop-
ing the promulgated regulations the agency accounted
for the uncertain quality of its data by imposing less
stringent requirements than the data might support. For
example, the reactivity factor used for chemical process-
ing emissions was .6 rather than .47 or .52, and the
agency is satisfied with a 75 per cent target in Houston
rather than the much higher target that is suggested by
the nonmethane data on which Appendix J is based.
See note 14, supra.
[320]
As a final note on the margin of error argument, we
point out that our only concern with it is in the context
of those control measures which are not deferred pending
agency reconsideration of the refinery reactivity factor.
That is, we deal with this issue only with regard to
control of emissions sources and not as it relates to
transportation and land-use controls. Thus we have had
no occasion to consider the effect of a margin of error
on controls which, after all, are unlike emission source
controls in that they may be imposed only “as, may be
necessary.” See 42 U.S.C.A. § 1857c-5(a)(2)(B); Natu-
ral Resources Defense Council, Inc. v. EPA, supra, 489
F.2d at 406-409. Similarly, we have not had occasion to
consider the fact that the agency’s reduction targets are
apparently accurate only to the nearest whole percent,
RAR LIED We IT i RRS tS RN NS ARIES CM VT SH TEM 7
iti alla ae . PAUP Seer a CA er
A-59
whereas the reductions credited to each measure are
calculated to tenths of percent.”
The final issues which merit discussion are raised only
by Harris County. Several of the agency's promulgated
regulations direct the state to institute a particular pro-
gram, such as an inspection system. This contrasts with
the typical regulation which is directed at private in-
dividuals, for example, prohibiting them from filling auto-
mobile gasoline tanks without employing vapor recovery
mechanisms. Harris County contends that Congress em-
powered the agency only to promulgate regulations affect-
ing private parties and to enforce them should the state
refuse to do so. It was not intended, claims Harris County,
that the agency should have the power to require specific
legislative acts by states. The county further contends
that even if Congress attempted to delegate such power,
doing so would violate constitutional principles of federal-
ism and state sovereignty.
These are weighty issues. However, they are not proper-
ly before this court and we decline to consider them. There
are two reasons for this disposition. The first is that these
issues were not raised below. The agency was thus ac-
corded no opportunity to evaluate these contentions as
to the limitations on its power, and to adapt its regula-
tions accordingly."’ Second, this objection to the regula-
50. If the figures in note (38) are rounded off, the 75 per cent
Region 7 target is achieved without reliance on the land-use and
transportation regulations (1.5 is rounded up because the decimal
portion of the actual quotient exceeds .5, but in note (38) was
rounded down to that figure; the same is true of the 65.5 per cent
reduction which the EPA credits to the state’s plan).
51. It should be recognized that according to the EPA’s view
of its statutory power the effect of these objections goes principally
to the form of the regulations and not their permissible substance.
+ RT
A-60
tions has not been raised by the state of Texas. We do
not think it appropriate gg consider the issue in these
SUMMARY
We will now summarize the effect of our various rulings
for each region. Where a regulation affects several regions,
a statement pertaining to it is relevant only for the region
being summarized.
[321]
Region 3 (Austin-Waco)
An extension of the date for attaining the national
ambient air standard for oxidants shall be granted. The
agency's additional regulations, § 52.2283 (extension of
Texas Regulation V) and § 52.2286 (vapor recovery
during gasoline marketing operations), are invalid.
Cj. Commonwealth of Pennsylvania v. Environmental Protection
Agency, 3 Cir., 1974, 500 F.2d 246, on these issues.
ee Re a ee ee -
‘ ’
A-61
Region 7 (Houston-Galveston)
The land-use (§ 52.2292) and transportation (52.2293-
52.2297) regulations shall be deferred pending agency
reconsideration of its refinery reactivity factor. Additional
regulations shall be similarly deferred as necessary to
accumulate deferred reductions of at least 0.9 per cent,
in accordance with page 311 of this opinion. Subject to
the conditions of the preceding sentence, regulations
52.2284 (degreasing operations), 52.2285 (vapor re-
covery during the filling of service station storage tanks),
52.2287 (ship and barge controls), 52.2290 (vehicle in-
spection and maintenance), and 52.2291 (retrofit of pre-
1968 automobile) are valid and enforceable. Regulation
52.2288 (vapor recovery during vehicle refueling) must
be reconsidered before it can take effect.
Region 8 (Dallas-Fort Worth)
An extension of the date for compliance with the
national ambient air quality oxidant standard shall be
granted for this region. The gasoline marketing regula-
tions (52.2285 and 52.2289) are invalid. Regulation 52.-
2283, requiring extension of Texas Regulation V to Tar-
rant County, is valid and enforceable.
Region 9 (San Antonio)
The transportation regulations (52.2293, 52.2294,
52.2296, and 52.2297) shall be deferred pending agency
reconsideration of its refinery reactivity factor. Regula-
tions 52.2284 (degreasing operations), 52.2285 (vapor
recovery during the filling of service station storage
tanks), and 52.2290 (vehicle inspection and maintenance
program) are valid and enforceable. Regulation 52.2288
ee ee >
SP Se BE FEN eT Ore O64 fae oe
A-62
(vapor recovery during vehicle refueling) must be recon-
sidered before it can take effect.
Region 11 (El Paso)
The only additional regulations applicable to this Re-
gion, §§ 52.2286 and 52.2288 (vapor recovery during
gasoline marketing operations) are deferred pending
agency reconsideration of its refinery reactivity factor.
Whatever may be the result of this process the agency
may not repromulgate these regulations prior to recon-
sidering the state’s application for an extension of the
date for compliance with the national standard for oxi-
dants. Further, regulation 52.2288 (vapor recovery dur-
ing vehicle refueling) must itself be reconsidered before
it can take effect.
In Regions 3 and 8 the Administrator shall make the
determination required, by 42 U.S.C.A. § 1857c-5(e)
(2)(B), as a result of our order that extensions be
granted. In Region 8 the promulgated interim transporta-
tion regulations (52.2294, 52.2296, and 52.2297) shall
be reconsidered.
The Petitions to review are granted in part and denied
in part.
CLARK, Circuit Judge, with whom BOYLE, District
Judge, joins, specially concurring.
I concur without reservation in the entirety of Judge
Bell’s thoroughgoing, able opinion. The sole purpose of
this addendum is to highlight the adverse effects flowing
from the legislative mandate that judicial review proceed-
ings be injected into the court system at the appellate
level.
SAD, tbe. 2 4 eRe See
A-63
No formal hearing has ever been held in this highly
technical, factually complex matter. The administrative
“record” upon which we had to base our review was
comprised of only the sparest of documentation, for it
essentially evolved from an act of agency rule-making.
To accentuate the problem the agency contracted the
services of a private firm for the formulation of most of
the rule requirements it ultimately
[322]
adopted here, so that not even intra-agency background
for these actions was available. The writing judge was re-
quired to hold both pre and post-argument conferences
with counsel for the parties to enable the three of us as a
court to comprehend the substance of the issues and con-
duct a, minimally meaningful review.
The subject matter of this action involves the health
and welfare of millions of citizens, the continued business
Vitality of tens of thousands of firms and compliance ex-
penditures costing billions of dollars.
These extensive rights deserve a more orderly process
of judicial reflection.
2 ge bt DRILL
B-1
APPENDIX B
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 73-3540
STATE OF TEXAS, ET AL.,
Petitioners,
versus
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Petition for Review of Orders of the Environmental
Protection Agency (Texas Case)
ON PETITIONS FOR REHEARING
(Filed February 19, 1975)
Before BELL and CLARK, Circuit Judges and BOYLE,
District Judge.
PER CURIAM:
IT IS ORDERED that the petitions for rehearing filed
in the above entitled and numbered cause by Exxon Cor-
poration, et al., Dow Chemical Company, and Texas
Chemical Council, respectively, be and the same are here-
by DENIED.
C-1
APPENDIX C
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 73-3540
STATE OF TEXAS, ET AL.,
Petitioners,
versus
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Petition for Review of Orders of the Environmental
Protection Agency (Texas Case)
(Filed April 3, 1975)
Before BELL and CLARK, Circuit Judges and BOYLE,
District Judge.
BY THE COURT:
IT IS ORDERED that the motion of petitioners, Exxon
Corporation, et al., for leave to file a second petition for
rehearing is granted. The petition is denied.
IT IS FURTHER ORDERED that the motion of peti-
tioners, Exxon Corporation, et al., for stay of mandate
C-2
pending final disposition of all issues and for clarification
of judgment is denied.
IT IS FURTHER ORDERED that the motion of peti-
tioners, Harris County and Harris County Hospital Dis-
trict for stay of mandate pending final disposition of all
issues and for clarification of judgment is denied.
IT IS FURTHER ORDERED that the motion of peti-
tioners, Harris County and Harris County Hospital Dis-
trict, for stay of mandate pending the timely filing and
disposition of an application for writ of certiorari to the
United States Supreme Court is denied.
Having declared certain of the regulations in issue in-
valid and others valid in our decision of August 5, 1974,
State of Texas v. Environmental Protection Agency, 5
Cir., 1974, 499 F.2d 289, and having retained jurisdic-
tion as to and only as to those matters deferred in that
opinion for reconsideration by Respondent Environmental
Protection Agency, the mandate of this court shall issue
twenty days from the date hereof.
The stay order of this court dated February 28, 1974
is dissolved effective on the issuance of the mandate ex-
cept as to those matters deferred for reconsideration as
aforesaid.
IT IS SO ORDERED this 3rd day of April, 1975.
IIR REIS SGA ROE TREO
D-1
APPENDIX D
EPA REGULATIONS (40 C.F.R.)
§ 52.2287 Ship and barge loading and unloading
facilities.
(a) Rule 503.2 of the Texas Air Control Board Reg-
ulation V as incorporated by reference on May 31, 1972
(37 FR 10842) is amended to read: “All loading and
unloading facilities for crude oil or condensate are exempt
from Rule 503.” This amendment eliminates an exemption
for ships and barges.
(b) This section is applicable to ships and barges which
use the port facilities within the Houston-Galveston In-
trastate Region.
(c) Except as provided in paragraph (d) of this sec-
tion, the owner or operator of a source subject to para-
graph (a) of this section shall comply with the increments
contained in the following compliance schedule.
(1) Contracts for emission control Systems or process
modifications not later than March 31, 1974.
(2) Initiation of on-site construction or installation of
emission control equipment or process change must begin
not later than July 31, 1974.
(3) On-site construction or installation of emission con-
trol equipment or process modification must be completed
not later than March 31, 1975.
(4) Final compliance is to be achieved not later than
May 31, 1975.
(5) Any owner or operator of stationary sources sub-
ject to the compliance scheduled in this paragraph shall
certify to the Administrator, within five days after the
D-2
deadline for each increment of progress, whether or not
the required increment of progress has been met.
(d) Paragraph (c) of this section shall not apply:
(1) To a source which is presently in compliance with
paragraph (a) of this section and which has certified such
compliance to the Administrator by January 1, 1974. The
Administrator may request whatever supporting informa-
tion he considers necessary for proper certification.
(2) To a source for which a compliance schedule is
adopted by the Administrator.
(3) To a source whose owner or operator submits to
the Administrator by January 1, 1974, a proposed alter-
native schedule. No such schedule may provide for com-
pliance after May 31, 1975. If approval is promulgated
by the Administrator, such schedule shall satisfy the re-
quirements of this section for the affected source.
(e) Nothing in this section shall preclude the Admin-
istrator from promulgating a separate schedule for any
source to which the application of the compliance sched-
ule in paragraph (c) of this section fails to satisfy the re-
quirements of § 51.15 (b) and (c) of its charter.
[38 FR 38645, Nov. 6, 1973]
TEXAS AIR CONTROL BOARD REGULATIONS
Rule 503. Volatile Carbon Compounds Loading and
Unloading Facilities.
503.1 No person shall permit the loading or unloading
of volatile carbon compounds from any loading
facility having 20,000 gallons or more through-
put per day, averaged over any 30-day period,
unless such facility is equipped with a vapor
lee Sat ARG oa Ra aa ee te pene Oe ere TG
$e.
503.2
D-3
recovery system which reduces the emissions
such that the aggregate partial pressure of all
volatile carbon compound vapors in vent gases
or other material emitted to the atmosphere will
not exceed a level of 1.5 psia.
When loading or unloading is effected through
the hatches of a tank truck or trailer or rail-
road tank car with a loading arm equipped with
a vapor collecting adaptor, then pneumatic, hy-
draulic, or other mechanical means shall be
provided to force a vapor-tight seal between
the adaptor and the hatch. A means shall be
provided to prevent liquid drainage from the
loading device when it is removed from the
hatch of any tank truck, trailer or railroad tank
car, to accomplish complete drainage before
such removal. When loading or unloading is
effected through means other than hatches, all
loading and vapor lines shall be equipped with
fittings which make vapor-tight connections and
which close automatically when disconnected or
equipped to permit residual volatile carbon com-
pounds in the loading line to discharge into a
recovery or disposal system after loading is
complete.
All loading or unloading facilities for crude oil
or condensate and for ships and barges are ex-
empt from Rule 503.
E-1
APPENDIX E
Section 110(a)(2) of Clean Air Act,
(42 U.S.C. § 1857c-5(a)(2))
(2) The Administrator shall, within four months after
the date required for submission of a plan under para-
graph (1), approve or disapprove such plan for 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—
(A) (i) in the case of a plan implementing a na-
tional primary ambient air quality standard, it pro-
vides for the attainment of such primary standard as
expeditiously as practicable but (subject to subsec-
tion (e) in no case later than three years from the
date of approval of such plan (or any revision there-
of to take account of a revised primary standard);
and (ii) in the case of a plan implementing a na-
tional secondary ambient air quality standard, it
specifies a reasonable time at which such secondary
standard will be attained;
(B) it includes emission limitations, schedules,
and timetables for compliance with such limitations,
and such other measures as may be necessary to in-
sure attainment and maintenance of such primary
or secondary standard, including, but not limited to,
land-use and transportation controls;
(C) it includes provision for establishment and
operation of appropriate devices, methods, systems,
and procedures necessary to (i) monitor, compile,
and analyze data on ambient air quality and, (ii)
a At teal ial all Sen ee ae
E-2
upon request, make such data available to the Ad-
ministrator;
(D) it includes a procedure, meeting the require-
ments of paragraph (4), for review (prior to con-
struction or modification) of the location of new
sources to which a standard of performance will ap-
ply;
(E) it contains adequate provisions for intergov-
ernmental cooperation, including measures neces-
sary to insure that emissions of air pollutants from
sources located in any air quality control region will
not interfere with the attainment or maintenance
of such primary or secondary standard in any por-
tion of such region outside of such State or in any
other air quality control region;
(F) it provides (i) necessary assurances that the
State will have adequate personnel, funding, and
authority to carry out such implementation plan, (ii)
requirements for installation of equipment by own-
ers Or operators of stationary sources to monitor
emissions from such sources, (iii) for periodic re-
ports on the nature and amounts of such emissions;
(iv) that such reports shall be correlated by the
State agency with any emission limitations or stand-
ards established pursuant to this Act, which reports
Shall be available at reasonable times for public in-
spection; and (v) for authority comparable to that
in section 303, and adequate contingency plans to
implement such authority;
(G) it provides, to the extent necessary and prac-
ticable, for periodic inspection and testing of motor
LLANE AR RET ESCA IRR we
E-3
vehicles to enforce compliance with applicable emis-
sion standards; and
(H) it provides for revision, after public hearings,
of such plan (i) from time to time as may be nec-
essary to take account of revisions of such national
primary or secondary ambient air quality standard
or the availability of improved or more expeditious
methods of achieving such primary or secondary
standard; or (ii) whenever the Administrator finds
on the basis of information available to him that the
plan is substantially inadequate to achieve the na-
tional ambient air quality primary or secondary
standard which it implements.
Section 110(c) of Clean Air Act,
(42 U.S.C. § 1857¢-5(c) )
(c) The Administrator shall, after consideration of
any State hearing record, promptly prepare and publish
proposed regulations setting forth an implementation plan,
or portion thereof, for a State if —
3
(1) The State fails to submit an implementation
plan for any national ambient air quality primary or
secondary standard within the time prescribed,
(2) the plan, or any portion thereof, submitted
for such State is determined by the Administrator
not to be in accordance with the requirements of this
section, or
(3) the State fails, within 60 days after notifica-
tion by the Administrator or such longer period as
he may prescribe, to revise an implementation plan
‘
ite
E-4
as required pursuant to a provision of its plan re-
ferred to in subsection (a)(2)(H).
If such State held no public hearing associated with re-
spect to such plan (or revision thereof ), the Administra-
tor shall provide Opportunity for such hearing within
such State on any proposed regulation. The Administrator
shall, within six months after the date required for sub-
mission of such plan (or revision thereof), promulgate
any such regulations unless, prior to such promulgation,
such State has adopted and submitted a plan (or revision )
which the Administrator determines to be in accordance
with the requirements of this section.
F-1
APPENDIX F
Ports and Waterways Safety Act of 1972
(46 U.S.C. § 391(a))
§ 39la. Vessels carrying certain cargoes in bulk
(1) Statement of Policy—The Congress hereby finds
and declares—
_ That the carriage by vessels of certain cargoes in
bulk creates substantial hazards to life, property, the
navigable waters of the United States (including the
quality thereof) and the resources contained therein
and of the adjoining land, including but not limited
to fish, shellfish, and wildlife, marine and coastal
ecosystems and recreational and scenic values, which
waters and resources are hereafter in this section re-
ferred to as the “marine environment.”
That existing standards for the design, construc-
tion, alteration, repair, maintenance and operation of
such vessels must be improved for the adequate pro-
tection of the marine environment.
That it is necessary that there be established for
all such vessels documented under the laws of the
United States or entering the navigable waters of the
United States comprehensive minimum standards of
design, construction, alteration, repair, maintenance,
and operation to prevent or mitigate the hazards to
life, property, and the marine environment.
(2) Vessels Included.—All vessels, regardless of ton-
nage size, or manner of propulsion, and whether self-pro-
pelled or not, and whether carrying freight or passengers
for hire or not, which are documented under the laws of
the United States or enter the navigable waters of the
F-2
United States, except public vessels other than those en-
gaged in commercial service, that shall have on board
liquid cargo in bulk which is—
(A) inflammable or combustibie, or
(B) oil, of any kind or in any form, including but
not limited to, petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than dredged spoil,
or
(C) designated as a hazardous polluting substance
under section 1162(a) of Title 33;
shall be considered steam vessels for the purposes of title
52 of the Revised Statutes of the United States and shall
be subject to the provisions thereof: Provided, That this
section shall not apply to vessels having on board the sub-
stances set forth in (A), (B), or (C) above only for use
as fuel or stores or to vessels carrying such cargo only in
drums, barrels, or other packages: And provided further,
That nothing contained herein shall be deemed to amend
or modify the provisions of section 4 of Public Law 90-
397 with respect to certain vessels of not more than five
hundred gross tons: And provided further, That this sec-
tion shall not apply to vessels of not more than five hun-
dred gross tons documented in the service of oil exploita-
tion which are not tank vessels and which would be sub-
ject to this section only because of the transfer of fuel
from the vessels’ own fuel supply tanks to offshore drilling
or production facilities.
(3) Rules and Regulations.—In order to secure effec-
tive provision (A) for vessel safety, and (B) for protec-
tion of the marine environment, the Secretary of the de-
partment in which the Coast Guard is operating (here-
after referred to in this section as the “Secretary”) shall
F-3
establish for the vessels to which this section applies such
additional rules and regulations as may be necessary with
respect to the design and construction, alteration, repair,
and maintenance of such vessels, including, but not lim-
ited to, the superstructures, hulls, places for stowing and
carrying such cargo, fittings, equipment, appliances, pro-
pulsive machinery, auxiliary machinery, and boilers there-
of; and with respect to all materials used in such construc
tion, alteration, or repair; and with respect to the handling ~
and stowage of such cargo, the manner of such handling
or stowage, and the machinery and appliances used in
such handling and stowage, and with respect to equipment
and appliances for life saving, fire protection, and the pre-
vention and mitigation of damage to the marine environ-
ment; and with respect to the operation of such vessels;
and with respect to the requirements of the manning of
such vessels and the duties and qualifications of the offi-
cers and crew thereof; and with respect to the inspection
of all the foregoing. In establishing such rules and regula-
tions the Secretary may, after hearing as provided in sub-
section (4), adopt rules of the American Bureau of Ship-
ping or similar American classification society for classed
vessels insofar as such rules pertain to the efficiency of
hulls and the reliability of machinery of vessels to which
this section applies. In establishing such rules and reg-
ulations, the Secretary shall give due consideration to the
kinds and grades of such cargo permitted to be on board
such vessel. In establishing such rules and regulations the
Secretary shall, after consultation with the Secretary of
Commerce and the Administrator of the Environmental
Protection Agency, identify those established for protec-
tion of the marine environment and those established for
vessel safety.
F-4
(4) Adoption of Rules and Regulations.—Before any
rules or regulations, or any alteration, amendment, or
repeal thereof, are approved by the Secretary under the
provisions of this section, except in an emergency, the
Secretary shall (A) consult with other appropriate Fed-
eral departments and agencies, and particularly with the
Administrator of the Environmental Protection Agency
and the Secretary of Commerce, with regard to all rules
and regulations for the protection of the marine environ-
ment, (B) publish proposed rules and regulations, and
(C) permit interested persons an opportunity for hearing.
In prescribing rules or regulations, the Secretary shall con-
sider, among other things, (i) the need for such rules or
regulations, (ii) the extent to which such rules or regula-
tions will contribute to safety or protection of the marine
environment, and (iii) the practicability of compliance
therewith, including cost and technical feasibility.
(5) Rules and Regulations for Safety; Inspection; Per-
mits; Foreign Vessels.—No vessel subject to the provisions
of this section shall, after the effective date of the rules and
regulations for vessel safety established hereunder, have on
board such cargo, until a certificate of inspection has been
issued to such vessel in accordance with the provisions of
title 52 of the Revised Statutes of the United States and
until a permit has been endorsed on such certificate of
inspection by the Secretary, indicating that such vessel is
in compliance with the provisions of this section and the
rules and regulations for vessel safety established here-
under, and showing the kinds and grades of such cargo
that such vessel may have on board or transport. Such
permit shall not be endorsed by the Secretary on such
certificate of inspection until such vessel ha
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