Amicus Curiae Brief — Hoechst Celanese Corp. v. United States

No. 97-1578 ™~

IN THE

Supreme Court of Che United States

OCTOBER TERM, 1997

HOECHST CELANESE CORPORATION,

Petitioner.

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

Brief Amici Curiae

of the

AMERICAN INSTITUTE OF CHEMICAL ENGINEERS,

NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS,

NUCLEAR ENERGY INSTITUTE, SCIENCE &

ENVIRONMENTAL POLICY PROJECT, INC., SOCIETY

OF PLASTICS ENGINEERS and TEXAS INSTITUTE FOR

ADVANCEMENT OF CHEMICAL TECHNOLOGY, INC.

joined by the

CHEMICAL INDUSTRY COUNCIL OF NEW JERSEY,

MANUFACTURERS AND CHEMICAL INDUSTRY COUNCIL

OF NORTH CAROLINA, NORTH CAROLINA CITIZENS FOR

BUSINESS AND INDUSTRY, SOUTH CAROLINA CHAMBER

OF COMMERCE, SOUTH CAROLINA MANUFACTURERS

ALLIANCE and VIRGINIA MANUFACTURERS ASSOCIATION

IN SUPPORT OF PETITIONER

SCOTT M. DUBOFF

Counsel of Record

SAONE BARON CROCKER

WRIGHT & TALISMAN, P.C.

1200 G Street, N.W., Suite 600

Washington, D.C. 20005-3802

(202) 393-1200

Counsel for Amici Curiae

American Institute of Chemical

Engineers, et al.

Balmar Legal Publishing Services, Washington, D.C., (202) 682-9800

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TABLE OF CONTENTS

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I. EPA’s Multiple Counting Interpretation Jetti-

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II. EPA’s Approach Is Unexplained And Un-

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TABLE OF AUTHORITIES

CASES Page(s) |

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MISCELLANEOUS

U.S. International Trade Commission, Synthetic Organic

Chemicals. United States Production and Sales, 1990,

USITC Publication 2470 (December 1991)........................ Y

No. 97-1578

IN THE

Supreme Court of Che United States

OCTOBER TERM, 1997

HOECHST CELANESE CORPORATION,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

Brief Amici Curiae

of the

AMERICAN INSTITUTE OF CHEMICAL ENGINEERS,

NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS,

NUCLEAR ENERGY INSTITUTE, SCIENCE &

ENVIRONMENTAL POLICY PROJECT, INC., SOCIETY OF

PLASTICS ENGINEERS and TEXAS INSTITUTE FOR

ADVANCEMENT OF CHEMICAL TECHNOLOGY, INC.

joined by the

CHEMICAL INDUSTRY COUNCIL OF NEW JERSEY,

MANUFACTURERS AND CHEMICAL INDUSTRY COUNCIL

OF NORTH CAROLINA, NORTH CAROLINA CITIZENS FOR

BUSINESS AND INDUSTRY, SOUTH CAROLINA CHAMBER

OF COMMERCE, SOUTH CAROLINA MANUFACTURERS

ALLIANCE and VIRGINIA MANUFACTURERS ASSOCIATION

IN SUPPORT OF PETITIONER

This brief amici curiae of the American Institute of

Chemical Engineers, ef a/., is submitted in support of the

petition for a writ of certiorari filed by Hoechst Celanese

Corporation (HCC).' The petition seeks review of the

No portion of this brief was authored by counsel for a party, and no

person or entity other than the amici curiae and their members are

2

judgment and opinion of the United States Court of Appeals

for the Fourth Circuit in United States v. Hoechst Celanese

Corp., 128 F.3d 216 (1997) (reproduced at Pet. App. la-33a).

INTRODUCTION

Amici American Institute of Chemical Engineers, ef. al.,

include a number of nonprofit scientific and engineering

organizations representing a broad cross section of those

professions. In the conduct of their professional responsibilities,

amici and their members are frequently required to interpret

regulatory terms and standards. They cannot meet that

responsibility unless regulatory requirements are stated clearly

and the terms used are given their plain and natural meaning.

Amici share a common concern which is also the focus of

HCC’s petition and fundamental to achieving the purposes

underlying a broad range of regulatory standards that govern

scores of industries: the ability of the regulated community to

rely on the customary, natural meaning of the terms used in

regulations when determining the obligations that arise under

those regulations.

In addressing these critical concerns the scientific and

engineering organization amici are joined by state-based

manufacturing and business associations (also nonprofit).

Those associations include thousands of members in the

engineering and scientific professions.

More specifically, HCC’s petition involves interpretation of

a U.S. Environmental Protection Agency (“EPA” or “Agency”)

regulation, National Emission Standard for Equipment Leaks

(Fugitive Emission Sources) of Benzene, 40 C.F.R. Part 61,

Subpart J (“NESHAP” or “benzene NESHAP”). Pet. App.

123a-24a (the regulation was adopted pursuant to § 112 of the

Clean Air Act, 42 U.S.C. § 7412). The issue presented concerns

the meaning of the exemption from the benzene NESHAP that is

contributing monetarily to the preparation or submission of this brief. The

petitioner and respondent have each consented to the filing of this brief

and their respective letters of consent have been filed with the Clerk of the

Court.

EEE

3

provided in 40 C.F.R. § 61.110(c)\(2) for facilities that

“produce or use less than 1,000 megagrams of benzene per

year.” Pet. App. 124a. The federal government's litigation

position in the case, which the Fourth Circuit validated,

employed a “multiple counting” approach to determine the

quantity of benzene that a facility “produced or used” and

implement the exemption in section 61.110(c)(2).. As amici

explain below, that “multiple counting” approach distorts the

text of the regulation, disregards the pertinent regulatory

background in the administrative record, and deviates from

the Agency’s previous interpretation of the benzene

NESHAP. Moreover, EPA’s position is directly at odds with

the above-described necessity for use of commonly

understood terminology by scientists and engineers. Indeed,

even the Department of Justice (EPA’s counsel) felt

constrained to acknowledge (to the trial court) that the

benzene NESHAP exemption regulation’s failure to employ

terms that conveyed the meaning EPA intended was “a

mistake” and “an accident.” J.A. 000065, 000073°; see also

Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (Sth Cir.

1976) (“a regulation cannot be construed to mean what an

agency intended but did not adequately express”’).

The consequence for the regulated community is the

inability to rely on the previously accepted meaning of

regulatory terms or to determine the measures needed to

comply with regulatory standards. These concerns transcend

this case and will adversely affect amici and their members as

well as other scientific and engineering professionals who are

frequently called upon to interpret regulatory standards in

many contexts. Accordingly, amici submit that the decision

of the court of appeals was incorrect insofar as that court

deferred to EPA and upheld the Agency’s interpretation of the

regulation. To address these matters, amici respectfully urge

the Court to grant the petition for a writ of certiorari.

References herein to portions of the record that are not included in

the Appendix to the petition but were reproduced in the Joint Appendix

before the court of appeals are abbreviated as “J.A, ___

4

STATEMENT OF INTEREST OF AMICI

As noted above, a number of the amici are nonprofit

scientific and engineering organizations representing a broad

cross section of those professions.

Founded in 1908, amicus American Institute of Chemical

Engineers (AIChE) is a membership organization providing

leadership to the chemical engineering _ profession.

Representing 58,000 members in industry, academia, and

government, AIChE provides forums to advance the theory and

practice of the profession, upholds high professional standards

and ethics, and supports excellence in education.

Amicus National Society of Professional Engineers

(NSPE) is a membership organization with 54 state and

territorial societies, and over 500 local chapters representing the

interests of approximately 60,000 licensed engineers in

industry, government, education, construction and consulting

practice in the United States. NSPE’s mission is to promote the

ethical, competent and licensed practice of engineering, and to

enhance the professional, social and economic well-being of its

members. NSPE represents its members before a variety of

forums in connection with various matters of regulatory and

public policy that affect the engineering profession.

Amicus Nuclear Energy Institute (NEI) is the organization

responsible for establishing unified nuclear industry policy on

matters affecting that industry, including a broad array of

scientific, technological and regulatory issues. NEI’s members

include nuclear plant designers, major architect/engineering

firms, all utilities licensed to operate commercial nuclear power

plants in the United States, fuel fabrication facilities. nuclear

materials licensees, and other organizations and individuals

involved in the nuclear energy industry.

Amicus Science & Environmental Policy Project, Ince.

(SEPP) is an organization of scientists concerned with

informing the public policy forum with sound, factual analysis

of critical scientific issues. Guided by an international Board of

Science Advisors, SEPP sponsors international scientific

5

conferences and workshops, publishes policy analyses and

critiques by panels of international experts, conducts surveys of

specialists on various issues, and disseminates Statements to the

public and regulatory and legislative forums regarding key

environmental policies.

Amicus Society of Plastics Engineers (SPE) consists of

more than 35,000 individual plastics professionals located in 70

countries working in 92 local geographical Sections. SPE’s

members range from corporate presidents to college students,

and they are involved in all facets of plastics manufacturing

technology and utilization. The Society’s objective is the

education of its members and promoting knowledge and

education regarding plastics and polymers worldwide. This is

accomplished through SPE’s 20 technical divisions as well as

conferences, seminars, technical publications and monthly local

Section meetings.

Amicus Texas Institute for Advancement of Chemical

Technology, Inc. (TIACT) is concerned with a broad array of

scientific and regulatory issues. A principal TIACT objective is

the advancement of chemical technology through a_ better

informed public. TIACT achieves that objective through study,

evaluation and public dialogue regarding a variety of topics

concemed with chemical technology, human health and the

environment. TIACT’s studies have included chemicals and the

causes of cancer, safety in the workplace, assessment of the

impact of chlorine on human health and the environment,

epidemiological studies of cancer in Texas, hormesis studies

(hormesis is the property of a chemical, such as a medicine, to

be toxic at high dosages and therapeutic at low dosages),

hazardous waste incineration and the twenty-first century work

force requirements projected for the chemical and petroleum

refining industries. TIACT is headquartered at Texas A&M

University in College Station, Texas.

As noted, the serious scientific and engineering concerns

raised by the above-described amici are also shared by a

number of state-based manufacturing and business associations

6

whose members include thousands of engineering and scientific

professionals.

Amicus Chemical Industry Council of New Jersey

(CIC/NJ) is a membership association of 105 manufacturers in

the chemical process industry with facilities located throughout

the state. CIC/NJ coordinates policy for the industry on a

variety of matters, including regulatory affairs, education,

communications and environmental awareness and protection.

CIC/NJ members employ over 104,000 people in New Jersey

and produce a variety of materials used in agriculture,

manufacturing, construction, mining, textiles, cosmetics and

food processing.

Amicus Manufacturers and Chemical Industry Council of

North Carolina (MCIC) represents 70 companies and-more than

125 industrial facilities in North Carolina. A fundamental

objective of MCIC is promotion of sound science, engineering

and economics in the legislative and regulatory process. MCIC

members employ more than 75,000 North Carolinians engaged

in manufacturing a broad range of products. MCIC works in

conjunction with state and federal regulatory agencies to

provide leadership, information and services in the development

of policy, law and regulations regarding the manufacture, use

and proper handling of chemicals for the protection of public

health and the environment.

Founded in 1942, amicus North Carolina Citizens for

Business and Industry (NCCBI) is a research organization

specializing in public policy and related issues affecting

manufacturing and business. With more than 1,800 members,

NCCBL is the largest organization of its type in North Carolina.

Representing a diverse cross section of the economy, NCCBI’s

members range in size from small businesses to major

corporations, as well as community colleges, universities and

allied organizations. NCCBI advocates sound fiscal policies by

federal, state and local government, and supports initiatives that

will maintain an environmentally sound and diversified

economy.

7

Founded in 1940, amicus South Carolina Chamber of

Commerce is the state’s largest broad-based business and trade

association. Operating as a statewide organization, the South

Carolina Chamber represents businesses, industries, professions

and associations of all sizes and types. The Chamber serves as

a forum for consensus building to facilitate presentation of a

unified viewpoint in a broad range of public policy and

regulatory matters before legislative, regulatory and judicial

forums.

Amicus South Carolina Manufacturers Alliance (SCMA)

represents more than 80 companies and over 140 industrial

facilities in South Carolina. In addition, SCMA members

employ more than 80,000 South Carolinians in the manufacture

of a wide variety of products. SCMA works closely with state

and federal regulatory agencies to provide information,

guidance and leadership in the development of laws, regulations

and policies regarding environmental protection in South

Carolina. SCMA’s very active environmental committee

consists of the state’s leading scientists and engineers, who have

responsibility for environmental management and compliance

at their respective companies. SCMA _ promotes sound

engineering, science and economics in both the legislative and

regulatory processes.

Amicus Virginia Manufacturers Association (WMA)

represents approximately 500 manufacturing industries in

Virginia. ©YMA’s Environmental Affairs Committee is

composed of over 80 active members and seven subcommittees

which monitor and submit comments on virtually all regulatory,

legislative and judicial matters concerning state government

regulation of the environment in Virginia, as well as federal

matters of particular concern to VMA members, such as this

case. The members of VMA’s Environmental Affairs

Committee are engineers and scientists that have primary

responsibility for environmental management and compliance

at their industrial facilities.

8

REASONS FOR GRANTING THE WRIT

I. EPA’s Multiple Counting Interpretation Jettisons The

Administrative Record And The Accepted Meaning Of

The Engineering And Scientific Terms At Issue

The issue underlying HCC’s petition is whether the

company’s Rock Hill, South Carolina chemical manufacturing

plant (“the Celriver Plant’) qualified for an exemption from the

benzene NESHAP. The exemption is available for “[a]ny

equipment in benzene service that is located at a plant site

designed to produce or use less than 1,000 megagrams of

benzene per year.” 40 C.F.R. § 61.110(c)(2): Pet. App. | 24a.

The exemption was intended to reach plants that, relatively

speaking, were not cost-effective to regulate. Pet. App. 4a.

The court of appeals deferred to an administrative

interpretation that EPA has itself described (in a closely related

benzene regulation) as the “multiple counting” approach. See

40 C.F.R. § 61.342(a); Pet. App. 173a. In deferring to that

interpretation, the court of appeals rejected the interpretation

frequently expressed over the years by EPA, state

environmental agencies and others — including unrebutted

testimony of scientific and engineering experts — that “use”

means “consumption” (referred to by the district court as the

“single counting” approach). See, ¢.g., Pet. App. 42a.

At the outset it should be noted that shared vocabulary

between regulators and the regulated community is critical both

to accomplishing the purpose of a given regulation and

preserving the rights of the regulated. The Fourth Circuit's

decision in this case, however, by deferring to EPA’s “multiple

counting” approach to define “use,” disregards the vocabulary

on which scientists and engineers rely every day. Under the

approach advocated by EPA, the amount of benzene “used” by

the Celriver Plant over the course of a year is derived through

counting the same benzene over and over again, with the result

that the Celriver Plant “used” more than 2.5 million

megagrams of benzene each year. See Pet. App. 2la, 66a.

That contention leads to a very Strange anomaly, inasmuch as

the U.S. Intemational Trade Commission reports that total

9

annual production (manufacturing) of benzene in the United

States during the relevant period was only 5.64 million

megagrams.' In other words, according to EPA, HCC’s

Celriver plant used nearly one-half of total annual U.S.

production of benzene.

That contention is not credible and graphically

demonstrates how EPA’s approach disregards a fundamental

concept that engineers and_ scientists frequently address,

specifically, that recirculating flows are never to be confused

with throughput. This is illustrated by the customary mental

construct of a “black box.” For every “black box” input by

flow is equal to output by flow plus output by consumption or

losses to the environment, such as fugitive emissions (the

second component, output by consumption or losses to the

environment, is synonymous with throughput). Unrebutted

evidence submitted on behalf of HCC demonstrated this point:

The term “throughput” is ordinarily taken to mean

overall net production or consumption, not internal

circulation rate. The interpretation that “throughput

is intended to mean total cumulative flow through

equipment in benzene service rather than net

consumption or usage,” found in EPA’s June 13.

1989 letter to the Celriver Plant [see Pet. App. 20a],

demonstrates a surprising ignorance of commonly

accepted concepts and practices in chemical

engineering. As a past President of the American

Institute of Chemical Engineers, I am concerned that

professionally competent members could pronounce

such a radical interpretation without citing authorities

and textbooks.

Pet. App. 189a-90a, Initial Report of Dr. James Wei (Professor

of Chemical Engineering and Dean of Engineering, Princeton

University). Another engineering expert similarly explained:

See U.S. International Trade Commission, Synthetic Organic

Chemicals, United States Production and Sales, 1990, USITC Publication

2470, at 2-2 (December, 1991).

10

An automobile’s cooling system is a simple example

of a process unit analogous to a facility that recycles

benzene internally. The coolant or antifreeze is

recycled through the system when the automobile

operates. At the end of a year, the automobile may

require the addition of some antifreeze to maintain a

full cooling system. The cooling system would be

considered to have “used” antifreeze during the year

equivalent to the amount purchased and added to the

system. Under generally accepted chemical

engineering principles, the molecules of antifreeze

would not be recounted multiple times as they are

recycled in the cooling system in order to calculate a

“use” number. Otherwise, the cooling system would

be considered to have “used” tens of thousands of

gallons of antifreeze over the course of the year.

These principles of chemical engineering apply

equally to the calculation of benzene used in a

facility that recycles benzene intemally.

Pet. App. 176a-77a, Initial Report of Dr. E. Bruce Nauman

(Professor of Chemical Engineering, The Isermann Department

of Chemical Engineering, Rensselaer Polytechnic Institute).

As the court of appeals recognized, Pet. App. 4a, HCC’s

Celriver Plant used benzene as a catalyst or “reflux agent” that

is continually recycled in the process of separating water and

other compounds from acetic anhydride and acetic acid. The

term “reflux agent” is well-understood by chemical engineers.

lt means that all benzene recirculates in the process — some

directly and some through an impurity-removing mechanism.

In this connection it bears emphasis that as EPA was

developing the benzene NESHAP in the late 1970's, the

Agency was clearly directing its attention to entities that either

produced (manufactured) benzene or used benzene as a

feedstock, rather than entities like HCC that employed benzene

as a Catalyst only. Although HCC’s Celriver plant did not

produce benzene or use it as a feedstock in any process, at the

time of the underlying rulemaking there were many industrial

facilities within both of those categories. In fact, when the

ee

administrative record was being developed benzene producers

and feedstock users represented 99.5% of the total benzene

emissions from all sources.’ On the other hand, for a myriad of

non-producer/non-feedstock users, which included HCC’s

Celriver Plant (again, all such other uses represented only one-

half of one percent of benzene emissions), EPA recognized that

an exemption provision was necessary, and the exemption

applied to a “plant site” designed to “produce or use” less than

1000 megagrams of benzene annually.

This context is quite important because it provides further

confirmation that the focus of EPA’s 1984 regulation was the

benzene emissions of benzene producers and feedstock users,

and that the term “use” in EPA’s regulation meant

“consumption.” Indeed, it is well-documented that numerous

engineers, many of whom were employed by EPA and other air

quality agencies, looked at the regulation and concluded that

“use” meant consumption. For example, the head of the EPA

bureau that developed the benzene NESHAP testified that it is

“unequivocally clear” that “internal recycle’ — i.e., multiple

counting — was never ‘considered [nJor suggested as the basis

for the NESHAP exemption.” See Pet. App. 61a (district

court quoting affidavit of Robert Ajax). In case after case the

government scientists and engineers looking at this matter

reached similar conclusions, even to the extent of noting that

* See J.A. 000552, JRB Associates Inc., Materials Balance for

Benzene: Level Il (EPA-560/13-80-009, May 1980) (JRB Level II), Def.

Exh. 5.

EPA’s Background Information Document (BID) for the benzene

NESHAP. see J.A. 000243. Benzene Fugitive Emissions - Background

Information for Promulgated Standards, EPA-450/3-80-032b. June 1982.

Def. Exh. 10, underscores this point. The BID demonstrates that the 1.000

megagram cutoff in the benzene NESHAP exemption was based on

“design production capacity” as represented by a facility's “nameplate”

capacity. Production capacity — like nameplate capacity — is a “single

count” concept to an engineer, as EPA has recognized in other

rulemakings on subjects ranging from capacity to generate electricity to

capacity to store oil. In those regulations, EPA uses the term “nameplate

capacity” to describe measurement of the underlying subject matter at a

fixed point in time. See 40 C.F.R. § 72.2 (acid rain program); 40 C.F.R.

Part 112. App. E (oil pollution prevention).

ee

12

HCC “has successfully reduced the consumption of benzene to

less than 1000 Mg per year and thus is exempt from the

standards” of the benzene NESHAP.”

It should also be emphasized that EPA’s interpretation of

the benzene NESHAP exemption has changed a number of

times, especially in the face of litigation, and EPA’s regional

offices could not agree on how to interpret the regulation.

Thus, when HCC sought interpretation from regulators

regarding two of HCC’s plants in Texas, state regulators and

EPA Region 6 confirmed that “use” refers to consumption or

inventory. It was only later that EPA Region 4 decided that

“use” is determined by recounting the same benzene each

time it circulates through a plant. See Pet. App. 28a, 32a

(EPA bureaucracy “could not itself agree on the proper

reading of its own regulation”; EPA “had at least three

different approaches for measuring use: (1) consumption of

benzene in a year, (2) the throughput of benzene through a

plant for a year, and (3) the total quantity in use at the

plant”).

This case is a poignant example of the administrative-

regulatory process not working as it should. To be sure, EPA,

like many federal regulatory agencies has a number of

responsibilities and amici do not advocate a standard of

precision beyond that which is reasonable to expect in such

6

J.A. 001035, 001036, Def. Exh. 64, Compliance Monitoring Report,

Dr. George Marusak, EPA Region IV, December 9, 1986. The same EPA

engineer later testified that he had never heard of the “multiple count”

approach to benzene “until told by counsel” in connection with this

litigation. See Memorandum in Support of Hoechst Celanese

Corporation's Motion for Summary Judgment and Opposition to

Plaintiff s Motion for Partial Summary Judgment, Exh. 32, Deposition of

George Marusak, at 170-72: see also Pet. App. 57a.

' Although an agency's interpretation of its own regulations is

generally entitled to judicial deference, that is not true where, as in this

case, the agency’s interpretation has not been advanced consistently. /NS

v. Cardoza-Fonesca, 480 U.S. 421, 445-46 ns. 29 & 30 (1987). EPA’s

approach to the benzene NESHAP at issue here has been a “moving

target”, see Jersey Central Power & Light Co. v. FERC, 730 F.2d 816,

822 (D.C. Cir. 1984), rather than a policy to be accorded deference.

——

13

circumstances. But if the regulatory process is to function

properly, including matters of engineering and _ scientific

terminology such as in this case, the regulated community

must be able to rely on the accepted, commonly understood

meaning of the terms that comprise regulatory standards. If

an agency intends to depart substantially from such

commonly accepted meaning, as EPA has done here, the

rulemaking process must alert the regulated community of the

agency's departure. EPA failed to do so.

Il. EPA’s Approach Is Unexplained And Unworkable

Aside from being contrary to the accepted meaning of

the term “use” and the administrative record, EPA provided

no explanation as to how its “multiple counting” approach

would be implemented in practice.

More specifically, at no time during the rulemaking for the

1984 benzene NESHAP, or during the intervening fourteen

years, did EPA attempt to explain how one would answer the

numerous questions that arise when a “multiple counting”

approach is applied to even the most simple manufacturing

process. For example, nowhere does EPA provide any

explanation as to how one would select the individual pieces of

equipment necessary to measure the recirculation rate or

recycled quantity of benzene. Nor is there any guidance

regarding chemical streams that split into substreams (some

substreams will recycle their flow while others will not). Also

absent is any guidance to address the fact that the different

pieces of equipment through which benzene is routed in the

manufacturing process may have different rates of flow and

volume. Without that information EPA’s “multiple count”

HCC submitted a trial exhibit (/nconsistent Applications of the 1,000

Megagram NESHAP Exemption, Revised Attachment H, J.A. 001369)

documenting all known post-promulgation instances (during the years

1984-95) in which EPA or a state with EPA-delegated authority to

implement the benzene NESHAP determined whether individual plants

satisfied the exemption’s 1,000 megagram limit. The exhibit shows that

the term “use” was more frequently applied as a “single count” rather than

“multiple count” concept. But the most significant aspect of the exhibit is

the fact that in those instances where EPA applied “use” as a “multiple

a

14

approach its entirely arbitrary. It is unlikely that calculations

by two qualified individuals, looking at the same facility and

conditions, would agree on the amount of benzene “used”.

These questions, which EPA has never answered, expose

the unworkability of the “multiple count” approach which

EPA claims is the basis of the benzene NESHAP exemption.

Indeed, a subsequent NESHAP, 40 C.F.R. Part 61, Subpart

FF, is powerful evidence that EPA would not have avoided

addressing such questions if it had actually intended to adopt

“multiple counting” in the Subpart J regulation at issue here.

Importantly, the application of Subpart FF is based in part on

benzene flow at multiple points within a plant. As a result, the

preambles to the proposed and final Subpart FF rules, unlike

their Subpart J counterparts, explain how one is to determine

the location and number of points required to measure recycled

volume. See, e.g., 57 Fed. Reg. 8017, 8019-21 (1992); 58 Fed.

Reg. 3072, 3076-77 (1993); 40 C.F.R. § 61.355(k)(1)-(2). The

extensive analysis of this very issue in the Subpart FF

rulemaking shows that calculating benzene use based on

“multiple counting” is complex and requires explanation. Such

explanation is critical to the scientists and engineers who must

implement EPA’s regulation, but was completely lacking in

this case.

In short, EPA failed to articulate a considered and

consistent interpretation of the benzene NESHAP exemption,

and has instead been inconsistent and ambiguous and avoided

important procedural protections to those who are subject to the

rule. The scientific and engineering communities cannot do

their jobs properly where they cannot rely on the plain meaning

of regulatory terms. To strain the plain meaning of the benzene

NESHAP, as EPA has advocated, can only serve “to delay the

day” when such regulations will be written so that the regulated

community “will be better able to understand and observe

count” concept the Agency failed to provide any explanation regarding

how to determine the number and location of the internal points where

benzene flow would be measured, or otherwise provide guidance that is

essential to measuring benzene “use” on a “multiple count” basis.

15

them.” Diamond Roofing Co. v. OSHRC, 528 F.2d at 650.

Amici submit that the significance of these issues to a broad

range of administrative agency matters and the serious

precedential impact of the decision below merit review by this

Court.

CONCLUSION

For the foregoing reasons, amici urge the Court to grant

the petition for a writ of certiorari.

Respectfully submitted,

SCOTT M. DUBOFF

Counsel of Record

SAONE BARON CROCKER

WRIGHT & TALISMAN, P.C.

1200 G Street, N.W.

Suite 600

Washington, D.C. 20005-3802

(202) 393-1200

Counsel for Amici Curiae

American Institute of Chemical

Engineers, et al.

Dated: May 26, 1998