# Petition for Writ of Certiorari — Exxon Corp. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0237%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 427 U.S. 651 ## Text 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 AVES tty Page y TRS eee « aie ae . 2 as ach S “ sae ae Saar Rot ae ee Ee oe kT AT ae ee 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. ei a tnd BNE ae oe a a a BRO UE Taney agi > SeENN pret 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). OS yee AR Jaden, SAS gaan Me 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 PS RAR HE a0 SRR SEALE PLETAL PEM SSE IEE EIDE EEE LLIN TI oe HH : te | tt 2 oO : i aT ne cTEt thy 22°F zB5 ? 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 emissio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0237%3A1. Public record. Not legal advice.