Amicus Curiae Brief — Train v. Natural Resources Defense Council, Inc.

Supreme Court, U.

FILED

Supreme Court of the + Huited States

October es 1974

are No. 73-1742

| . RUSSELL E. TRAIN, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, and the UNITED

STATES ENVIRONMENTAL PROTECTION

AGENCY, Petitioners

Vv.

NATURAL RESCURCES DEFENSE COUNCIL,

INC., ET AL., Respondent

BRIEF AMICUS CURIAE

OF

EXXON CORPORATION GULF OIL CORPORATION

SHELL OIL COMPANY. PHILLIPS PETROLEUM CO.

CELANESE CORPORATION ATLANTIC RICHFIELD CO.

MOBIL CHEMICAL CO. CHAMPLIN PETROLEUM CO.

UNION OIL COMPANY ALUMINUM COMPANY OF

OF CALIFORNIA ‘ AMERICA

AMERICAN PETROFINA RIO GRANDE VALLEY

] COMPANY SUGAR GROWERS ASSN.

R. GORDON GOOCH

BAKER & BOTTS

1701 Pennsylvania Ave., N.W.

Washington, D.C. 20006

LARRY B. FELDCAMP

BAKER & BOTTS

3000 One Shell Plaza

Houston, Texas 77002

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

ER ce, Ge ree

sare

neem

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE .....:.........05--

SUMMARY OF ARGUMENT ............ ee

ARGUMENT. <<. 5.05 ee ne ore

I. The Adverse Impact of The Fifth Circuit’s Decision on

The States’ Role in Air Pollution. Abatement and On

The Attainment of The Ambient Air Quality Standards

A. Role of The States Under The Clean Air Act .....

B. EPA Guidelines for Implementation Plans ........

C. Impact of Granting Deferrals Only Under 42 U.S.C.

a ee eer a een eee

Il. Reliance on EPA’s Interpretation of The Clean Air Act

and The Adverse Impacts if that Interpretation is Not

Oe re ee cere ee eee

B. - Adoinistrative CHSOS .. cee 5 es oie ee es

C. Impact on Industry™. .... 2... see peseeee ences

III. The NRDC is Estopped to Challenge The EPA's Ap-

proval of Implementation Plans Permitting the Issuance

eS ge arn ei e+ Me Mee es meray ra yer

CONCIQUSION «2.05.00 eee eee cette ene eens

APPENDIX

A. Notice of Citron Silt ise ce oe ee ees ;

B. Testimony of Mr. Johnson at Texas Air Control

Board Public Hearing, In the Matter of Exxon

Company, U.S.A., Houston, Texas, May 4, 1973,

pages 14-17 2... ee cece cere eect reece esenrees

Letter of. May 10, 1973 to Mr. Severson of Texas

Air Control Board from Mr. Di Corcia of Exxon

Company, U.S.A., with attached Additional Testi-

es ee en re Le Vee ee Se

II

TABLE OF AUTHORITIES

CASES Page

Burnet v. Guggenheim, 288 U.S. 280 (1933) ............ 8

Hays v. Port of Seattle, 251 U.S. 233 (1920) ......@... 17

McLaren v. Fleischer, 256 U.S. 477 (1921) ........0a.. 11

Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 478 F.2d 875 (1st Cir. 1973)....... 9,10

Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 453 F.2d 690 (8th Cir. 1973)....... 8

Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 489 F.2d 390 (Sth Gir. 1974)....... 2,9,15

Natural Resources Deiense Council, Inc. v. Environmental

Protection Agency, 494 F.2d 519 (2nd Cir. 1974)...... 8

Penn. Mutual Life Insurance Co. v. City of Austin, 168 US.

NE 65 odo 6 6 ors oh eg UWS As ves bea cenees 17

Triangle Improvement Council v. Ritchie, 314 F. Supp. 20

(S.D. W.Va. 1969), aff'd 429 F.2d 423 (4th Cir. 1970),

eet. temed: 402-US. B97 (1971) oie eas ete 17

Ce ©. Ta, FO. 0 UTIGB) noo ik nes ci cess 11

STATUTES

Administrative Procedure Act, 5 U.S.C. 701-706 ......... 16

Clean Air Act, Section 101, 77 Stat. 392, as added and

amended by the Clean Air Amendments of 1970, 84 Stat.

COTE, Oa ee i ik a os ee es Sees 2

Re a oh as oa ee hoe oe See ee res 4

ee ih oie a eek ok eae 4

ee SON TEE hyo ok Oe by shee eek ones 4+

I, CTO ois os fae ee i ee ke 4

Me ok es as oe ee aes 4

ee BOIS ak oe so oe sk ce ed 5 PRR ees 4

Te ts ekg ee ar Se re reir 4

ee Re re oo ck era ens eke ee 4

Be CE hie eee or ces vce eke as 4

We Ue PESTO SURI GRIAND) oii ccak cc cccces 2,4, 10

RF TR ORE i oc is tk ess eee 4

Me Te Pert Oo ik aca chk te heh rei were 2

ey Do oi ws nh es cde cues ones 2.3, 5,6,7

Pe aR gH oe TR STE Aen ee 7

ee ROO 6s ONS 5b Oe seis rns Geek hn nees 13

AZ BA TBS e oi ks tee hoes sas i ep ene ee 2,12

Be UA TRS) ocd etcee cca es ViRbeei sees 16

Tt Te ERC ho Gar os tee ee es 6 oe en eas wes 16

ill Y

REGULATIONS AND OTHER AUTHORITIES

MOON Wee kas ee

ie OPE SUI Cg os ee

OES SUC 3 ai oe ss

We BO okie i

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WC Oe Ce kee r,

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Note, 52 Tend.Bev. 12717 C1974) von civece esc eeneen

36 Fed. Reg. 15486 et seg., August 14, 1971

36 Fed. Reg. 15494, August 14, 1971 ..............45,.

36 Fed. Reg. 22405, November 25, 1971

37 Fed. Reg. 10842 ef seg., May 31, 1972 ..............

BY Sem, Ram. TUGSG, Oe 21, Were Ns viene eee eas

37 Fed. Reg. 10859, May 31, 1972

ee

ee

IN THE

Supreme Court of the United States

October Term, 1974

No. 73-1742

RUSSELL E. TRAIN, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, and the UNITED

STATES ENVIRONMENTAL PROTECTION

AGENCY, Petitioners

Vv.

NATURAL RESOURCES DEFENSE COUNCIL,

INC., ET. AL., Respondent

BRIEF AMICUS CURIAE

FILED ON BEHALF OF:

EXXON CORPORATION GULF OIL CORPORATION

SHELL OIL COMPANY PHILLIPS PETROLEUM CO.

CELANESE CORPORATION ATLANTIC RICHFIELD CO.

MOBIL CHEMICAL CO. CHAMPLIN PETROLEUM CO.

UNION OIL COMPANY ALUMINUM COMPANY OF

OF CALIFORNIA AMERICA

AMERICAN PEYROFINA = RIO GRANDE VALLEY

COMPANY SUGAR GROWERS ASSN.

- INTEREST OF AMICUS CURIAE

_The above-named companies, Exxon et al., have ob-

tained variances from the regulations incorporated in the

implementation plan for the State of Texas. Some also

have variances from other State implementation plans.

wy

2

10 of the 12 companies have already been given a notice

under the citizen suit provision of the Clean Air Act, 42

U.S.C. § 1857h-2, that they will be sued on the basis that

the variances granted to them by the Texas Air Conirol

Board are invalid under the Fifth Circuit’s decision in

Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 489 F.2d 390 (1974), and that as a

consequence their emissions into the atmosphere are un-

lawful. A copy of this citizen suit notice is found in Ap-

pendix A. Thus, this brief, which is being filed with the

consent of both parties, will present the views of com-

panies which are directly affected by the outcome of this

case.

SUMMARY OF ARGUMENT

Consistent with the provisions of the Clean Air Act,’

the Environmental Protection Agency (EPA) has estab-

lished and applied regulations which permit the States to

grant variances from their implementation plans for at-

taining the national ambient air quality standards where

the attainment of the ambient standards by the mandatory

Statutory deadlines will not be affected. Such variances

from the emission source standards incorporated in the

implementation plans are regarded as “revisions” of the

States’ implementation plans under 42 U.S.C. §$ 1857c-5

(a)(3). The EPA’s interpretation of the Act as reflected

in its regulations permits the States to maintain their “pri-

mary role” in developing implementation plans by giving

the States sufficient flexibility to develop control strategies

which will achieve the national ambient air quality stand-

ards “as — as practicable” as required by the

Act. 42 U.S.C. § 1857c-5(a)(2) (A) (i). If variances can-

1. 77 Stat. 392, as added and amended by the Clean Air Amend-

ments of 1970, 84 Stat. 1676, 42 U.S.C. §§ 1857 et seg.

3

not be granted and § 1857c-5(f) postponements are re-

garded as the sole deferrai mechanism for attaining emis-

sion source standards, as has been held by the Fifth Cir-

cuit, there will be very little improvement in the ambient

air quality until the latest possible time under the Act for

attaining the ambient standards as the States will be forced

to devise plans to overcome the limited relief available

under § 1857c-5(f). Thus, the ambient standards will not

be attained “as expeditiously as practicable.”

Moreover, the EPA’s interpretation of the Act should

be upheld in view of the substantial reliance on this inter-

pretation by the States and industry resulting 1n the grant-

ing of thousands of variances. |i it is found that these

variances are invalid, then many companies inay have all

or part of their facilities shutdown as a result of citizen

suits or other enforcement actions, affecting not only the

companies and their employees but also the economy and

the energy situation. It is further submitted that Respond-

ent, Natural Resources Defense Council. Inc. (NRDC).

is estopped to challenge the EPA’s interpretation of the

Act under the dectrine of laches in view of the delay in

challenging the EPA regulations before substantial reli-

ance thereon by the States and industry.

ARGUMENT

I.

The Adverse Impact of The Fifth Circuit’s Deci-

sion On The States’ Role in Air Pollution Abate-

ment and On The Attainment of The Ambient

Air Quality Standards

A. Role of The States Under The Clean Air Act

The 1970 a:mendinents to the Clean Air Act maintained

State participation in air pollution prevention and control

4

and, in fact, mandated that the EPA cooperate with local

authorities, stating that the “primary responsibility” for

assuring air quality still remained with State and local

governments.” While Federal funding and guidance were

provided,’ the Congress, realizing that air pollution was a

diverse and complex problem, left it to the States to de-

velop implementation plans, subject to EPA approval.

that would result in the attainment and maintenance of

the national ambient air quality standards.’

Section 1857c-5(a) sets forth the minimum requirements

for plans developed by the States. The implementation

plans must provide for the attainment of primary ambient

air quality standards “as expeditiously as practicable” but

in no case later than three years from the date of the

approval of the plan.’ Also to be included are “emission

limitations, schedules, and timetables for compliance with

such limitations, and such other measures as may be _nec-

essary to insure attainment and maintenance of such

primary or secondary standard... .”"

B. EPA Guidelines for Implementation Plans

Besides the general statutory provisions for State imple-

mentation plans, the EPA has established additional guide-

lines for the States in their “Preparation, Adoption, and

Submittal of Implementation Plans.’ Through these

guidelines the EPA adopted a policy consistent with the

statutory provisions of the Clean Air Act which allows the

2. See 42 U.S.C. $$ 1857, 1857a and 1857c-2.

3. See, such as, 42 U.S.C. §§ 1857b, 1857b-1, 1857c and 1857c-3.

4. 42 U.S.C. § 1857c-5.

5. 42 U.S.C. § 1857c-5(a)(2) (A) (i).

6. 42 U.S.C. § 1857c-5(a)(2)(B).

7. See 36 Fed. Reg. 15486 et seg., August 14, 1971, as codified at

40 C.F.R. Part 51 (1973).

5

States to maintain their primary role in developing imple-

mentation plans for meeting the ambient air quality

standards.

With respect to the one-year postporement provision,

42 U.S.C. § 1857c-5(i). the Administrator provided in

his implementation plan guidelines at 40 C.F.R. § 51.32

(f): 3

“A State’s determination to defer the applicability

of any portion(s) of the control strategy with respect

to such source(s) will not necessitate a request for

postponement under this section unless such deferral

will prevent attainment or maintenance of a national

standard within the time specified in such plan: Pro-

vided, however, That any such determination will be

deemed a revision of an applicable plan under

§ 51.6.”

In other words, the requirements of § 1857c-5(f) were to

apply only when the deferral of any portion of control

Strategy regulations would affect the attainment or main-

tenance of the national ambient air quality standards.

Deferrals in ‘other situations only required a revision of

the implementation plan by the Siates in accordance with

the less stringent requirements of 40 C.F.R. § 51.6

(1973)." Thus, the EPA regulation, 40 C.F.R. § 51.32

(f), provides the States with flexibility in determining

how to achieve the ambient air quality standards “as ex-

peditiously as practicable.” As will be illustrated below

8. Although revision requirements are not as stringent as those

under § 1857c-5(f), public hearings are nevertheless required for all

implementation plan revisions under 40 C.F.R. § 51.6(f) (1973), and

the Administrator must review a revision in the same manner as he

would the initial implementaticn plan. See 40 C.F.R. § 51.8 (1973).

Although only § 1857c-5(f) specifically requires adjudicatory hearings,

the variance hearings conducted by the Texas Air Control Board pur-

suant to 40 C.F.R. § 51.6(f) requirements were in fact adjudicatory.

f |

6

this is not the case if the decision of the Fifth Circuit is

upheld and § 1857c-5(f) postponements are held to be the

exclusive deferral mechanism during the pre-attainment

period.”

C. Impact of Granting Deferrals Only Under

42 U.S.C. § 1857c-5(f)

Pursuant to EPA’s implementation plan regulations at

40 C.F.R. Part 51, the majority of the States within the

Fifth Circuit adopted a control strategy which would re-

sult in the attainment of the ambient air quality standards

as soon as practicable. Georgia, Alabama, Mississippi and

Louisiana made their emission source regulations immedi-

ately effective, while Texas generally made its regulations

effective on Decembr 31, 1973, essentially midway during

the three-year time period for meeting the primary ambient

air quality standards." Under this type of control strategy,

variances from emission source regulations are to be

granted to only those so which are able to demon-

Strate in public hearings the necessity for deferring the

applicability of a regulation. Sources which make such a

showing are put on attainable but expeditious compliance

schedules which are monitored by the State air pollution

control agencies. This procedure enables the State agen-

cies to bring each emission source under their immediate

9. ‘Pre-attainment period” refers to the period prior to the stat-

utory mandatory deadlines for attaining the national primary ambient

air quality standards. This brief does not address the issues of post-

attainment variances or source hardship considerations, which were

decided by the Fifth Circuit, as the EPA’s Petition for Certiorari was

limited to the pre-attainment variance issue. None of the companies

supporting this brief have variances extending into the post-attain-

ment period.

10. See page 6 of EPA's Petition for a Writ of Certiorari, Only

Florida made its emission source regulations effective at the latest

possible time, generally mid-1975.

7

scrutiny and to compel each source to achieve compliance

with the emission standards as soon as possible, thus re-

sulting in the attainment of the ambient air quality stand-

ards “as expeditiously as practicable.”

On the other hand, the position of the NRDC as

adopted by the Fifth Circuit, if initially adopted by the

EPA, wou: have restricted the States in the development

of their implementation plans. If the States were limited

in deferring the applicability of emission source regula-

tions to the restrictive postponement requirements of

$1857c-5(f), the States undoubtedly would have estab-

lished compliance dates at the latest possible time, gen-

erally mid-1975, se as to preclude the possibility of forc-

ing the shutdown of numerous sources which, notwith-

standing reasonable efforts and availability of technology,

would not be able to meet the requirements of $1857c-

5(f) due to causes beyond their control.'' Moreover, the

one-year postponement limitation of § 1857¢-5(f)'* is a

further reason why the States would have probably im-

posed compliance dates at or near the latest possible

time.'®

11. To obtain postponements, sources must meet four stringent

statutory requirements. One very difficult requirement for some com-

panies is that continued operation must be demonstrated to be ‘‘essen-

tial to national security or to the public health or welfare.” 42 U.S.C.

§ 1857c-5(f)(1)(D) For a liberal interpretation of this requirement,

see Note, 52 Tex.L.Rev. 1217, 1224 (1974). In situations where there

is a shortage of pollution abatement equipment or material, such as

steel floating roofs for storage tanks, the lack of available technology

requirement also could not be met. The same would hold true where

force majeure situations occur, i.e., strikes, storms, fires, etc.

12. There is no language in § 1857c-5(f) indicating that multiple

one-year postponements may be granted. Therefore, it is assumed, but:

not conceded, that the maximum postponement is one year.

13. For those sources having variances until mid-1975, as do many

of the companies supporting this brief, a § 1857c-5(f{) one-year post-

8

Besides restricting the States’ flexibility in developing

control strategies, the NRDC’s ‘iterpretation of the Act

would also be contrary to the intent of Congress in ex-

peditiously reducing the level of pollutants in the ambient

air. If Georgia, Alabama, Mississippi, Louisiana and

Texas were forced to alter emission source compliance

dates to minimize the number of sources which w@uld

have to be shutdown, sources which could easily comply

with the emission source regulations in a relatively short

time could delay installation of control equipment without

violating the State regulations. Thus, the ambient air qual-

ity Would be improved only at or near the latest possible

time for meeting the standards rather than “as expedi-

tiously as practicable”. as required by the Clean Air Act."

The advantages of allowing variances from emission

source regulations have been recognized by the First Cir-

cuit whose opinion has been endorsed by the Eighth and

Second Circuits:*” |

ponement would not provide effective relief with respect to any reg-

ulation requiring compliance at a date within two. years from the date

of approval of the plan. Moreover, a regulation with a compliance

date before the last possible time would preclude a source from ob-

taining a year extension beyond the mid-1975 date for attaining the

ambient air quality standards.

14. In view of Congress’ use of the word “practicable.” the Clean

Air Act should not be interpreted and applied so as to force the shut-

down of any emission source making reasonable efforts to comply with

applicable regulations prior tothe mandatory deadlines for meeting

the nationai primary ambient air quality standagds. This is in accord

with the general rule of statutory construction, long followed by this

Court, that a statute susceptible of different meanings will be inter-.

preted to avoid hardships. See Burnet v. Guggenheim, 288 U.S. 280,

285 (1933).

15. Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 483 F.2d 690 (8th Cir. 1973), and Natural Re-

sources Detense Council, Inc. v. Environmental Protection Agency,

494 F.2d 519 (2nd Cir. 1974). 5

9

“We can see value in permitting a state tu

impose strict emission limitations now, subject to

indjvidual exemptions if practicability warrants;

otherwise it may be forced to adopt less stringent

limitations in order to accemmodate those who, not-

withstanding reasonable efforts, are as yet unable to

comply.” Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, 478 F.2d 875,

887 (1973).

Most cf the companies supporting this brief have vari-

ances from December 31. 1973 compliance date regula-

tions until mid-1975. These companies would probably

have been forced to ‘suspend part of their operations or

would have been fined in amounts up to $50.000 per day

if § 1857c-5(f) were the only deferral mechanism and the

compliance dates in the Texas Regulations remained un-

changed. By way of illustration. the particular situation

facing one of the companies supporting this brief. Exxon.

is set forth in Appendix B which includes an excerpt from

Exxon’s testimony presented at its variance hearing on

May 4.1973. If § 1857c-5(f) were the sole deferral mech-

anism, it is unlikely that Exxon coui. ‘ave obtained any

or adequate relief to develop and install wet gas scrubbing

for its fluid catalytic cracking units as more than one year

was required and technology. electrostatic precipitators.

was available. Thus. Exxon weuld have been precluded

from its efforts to develop and install new and improved

technology. which is contrary to the policy of the Clean

Air Act to “force” technology. See Natural Resources De-

fense Council, Inc, v. Environmental Protection Agency,

489 F.2d 390. 401 (Sth C'r. 1974).

In summary. EPA’s approach allows the State to fulfill

their “primary role” under tie Clean Air Act in an active

and beneficial manner. On the other hand, if the EPA

had adopted the Fifth Circuit’s interpretation. the States

LO

would have been deterred from seeking the earliest pos-

gible improvement in our air resources as the more string-

ent § 1857c-5(1) postponement procedure would have

forced the States to wait until almost all emission sources

had achieved the desired emission levels before any en-

forcement could be commenced. This effect would be di-

rectly opposite to the Congressional mandate that the

primary ambient standards be achieved “as expeditiously

as possible” and would also be contrary to the obvious

flexibility Congress desired to give to the States in devel-

oping their own implementation plans for achieving the

ambient standards. As noted by the First Circuit, § 1857c-

5(f) imposes a stricter standard than is suggested by the

“as expeditiously as practicable” language of § 1857c-5(a)

(2)(A)(i). Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, 478 F.2d at 887.

. II.

Reliance on EPA’s Interpretation of The Clean

Air Act and The Adverse Impacts If that Inter-

pretation is Not Upheld

A. Reliance by The States and Indusiry

ASS previously noted, the EPA set forth its interpreta-

tion of the § '857c-5(f) postponement provision and its

policy on the granting of variances in its regulations for

the “Preparation, Adoption and Submittal of Implementa-

tion Plans.” See 40 C.F.R. §$ 51.32(f) (1973) quoted on

page 5 herein. Relying upon these regulations the States

of Georgia, Alabama, Mississippi. Louisiana and Texas

developed implementation plans with early compliance

dates and issued over 3,000 variances.'® Companies ob-

16. See pages 6 and 8 and footnote 6 of the EPA’s Petition for

a Writ of Certiorari.

taining variances have relicd on the State plans and regu-

lations as well as the variances issued by the State air

pollution control agencies in the conduct of their bus:ncss.

However, if the EPA had interpreted that Act in the

manner the Fifth Circuit: did and the States had kept the

same compliance dates for their emission source regula-

tions, One or More companies would have undoubtedly

challenged the unreasonableness of the compliance dates

or the lack of any procedure for the granting of variances

from these dates in view of the limited reliei under

§ 1857c-5(f)..

Thereiore, in view of the great reliance upon the EPA’s

interpretation of the Clean Air Act as set forth in its

regulations for preparation of implementation plans, this

interpretation should ve upheld. This Court has indicated.

that general reliance upon an administrative agency's in-

terpretation of a statute should be given strong considera-

tion in determining the proper interpretation. Udail y.

Tallman, 380 U.S. 1, 18 (19653; McLaren v. Fleischer,

256 U.S. 477. 480-481 (1921).

B. Administrative Chaos

If the Fifth Circuit's decision that the $ 1857c-5(f) post-

ponement procedure is the exclusive method for deferring

emission source regulations is upheld, an administrative

nightmare will be created by the invalidation of over 3.000

variances in just the States comprising the Fifth Circuit.

For those sources with outstanding variances at the time

of a decision, requests for one-year postponements under

§$ 1857c-5(f) would have to be promptly processed to

preclude enforcement via a citizen suit, as a request for a

postponement does not stay the applicability of the emis-

sion source regulation. See 40 C.F.R. $ 51.32(e) (1973).

Le , ‘

In view of the adjudicatory hearing requirement us well

as the Specific requirements that. must be considered in

granting a postponement. the hearings will be very time

consuming and it is unlikely that the staffs of the EPA

and the State air pollution control agencies can adequately

handle any mre than a few § 1857c¢-5(f) requests within

a short time.'* Moreover, the adjudicatory hearings re-

quired under § 1857c-5(f) would be in many respects

duplicative of previous variance hearings required by

EPA procedures under 40 C.F.R. § 51.6(f) (1973).

C. Impact on Industry

Even more serious than the administrative difficulties

resulting from the affirmance of the Fifth Circuit’s decision

would be the problems facing industry. Those companies

Operating under variances would be immediately subject

to enforcement action under the Clean Air Act. Even if

the EPA in its discretion would not take legal action

against those companies having variances, there is still

the concern of citizen suits under 42 U.S.C. § 1857h-2.

In fact, most of the companies supporting this brief were

served with a notice of a citizen suit in March of 1973,’*

asserting that the variances issued to the companies are

invalid under the Fifth Circuit’s decision and that their

emissions into the atmosphere are unlawful. Presumably.

a suit has not been filed in view of this Court's stay of

the decision of the Fifth Circuit. However, if the Fifth

Circuit’s decision is upheld, a citizen suit could be. filed

17. The States presumably could revise the regulations incorpo-

rated in their implementation plans but this is also a very time-con-

suming process which probably cannot be accomplished prior to the

mandatory deadlines for meeting primary ambient standards in mid-

1975.

18. This citizen suit notice is found in Appendix A.

13

immediately seeking to enjoin allegedly unlawful dis-

charges of pollutants into the atmosphere. In addition, if

this decision has a retroactive effect."’ a suit could torce

the EPA Administrator to take enforcement action against

these companies for fines of up to $50,000 per day per

violation. 42 U.S.C. § 1857c-8.

Suits for injunctive action would have the most serious

impact as all or part of a company’s operation could be

shutdown until applicable emission limitations are met.

This could have a disastrous impact on the company. its

customers and the area economy. Such a situation could

result even if $ 1857c-5(f) hearings are requested since,

as indicated aove, such hearings may not be able to be

concluded promptly. Moreover, some companies may not

be able to meet the stringent requirements of § 1857c-5(f)

and thus would pe at the mercy of regulatory agency or

citizen enforcement action. This could occur in situations

where technology is available but notwithstanding all rea-

sonable efforts the necessary equipment or material cannot

be obtained in time to mect the compliance date require-

ments.

As an illustration of the impact on one particular facil-

ity, reference is made to Appendix C which includes a .

portion of the testimony submitted by the Exxon Corpor-

ation with respect to their variance hearing before the

Texas Air Control Board on May 4. 1973. In an effort to

control particulate and sulfur oxide emissions from fluid

catalytic cracking units at its Baytown, Texas refinery.

Exxon developed new technology. wet gas scrubbing.

to reduce emissions even further than that which would

19. Even if the Fifth Circuit’s decision is upheld, the great re-

liance on the EPA’s interpretation of the Act should result in the

decision having only a prospective effect.

14

be accomplished with existing technology. electrostatic

precipitators.“” A variance was obtained from the Texas

Air Control Board on July 26, 1973 to allow Exxon time

to develop and install this new wet gas scrubbing system

on its fluid catalytic cracking units.

It it is held that variances cannot be issued by, the

States, then one fluid catalytic cracking unit at Exxon’s

Bayiown refinery is subject to injunctive action for viola-

tion of sulfur oxide emission regulations. As indicated at

page C-2 of Appendix C. the shutcuown of this unit

would reduce gasoline production by 3,800,000 gallons

per day. which is 49% of the total capacity of the refinery,

one of the largest in the country. Heating oil production

would be reduced by 1,800,000 gallons per day, which is

66% of the refinery capacity, and production of other

fuel products will be reduced by 340.000 gallons per day.

Thus, an injunction shutting down this one unit at Exxon’s

refinery would have a substantial impact not only on Ex-

xon but on the overall energy situation in this ccuntry.*'

Thus, a decision resulting in the invalidation of all vari-

ances could possibly have almost disastrous consequences

on the economy and the energy situation. The administra-

tive chaos that would result if such a decision were ren-

dered would probably prevent the EPA from providing

any timely and effective relief under § 1857c-5(f). This

possibly disastrous situation has resulted from the reliance

of the States and affected companies on the EPA’s inter- -

pretation of the Clean Air Act. Accordingly. EPA’s rea-

sonable construction of the Act should be ‘upheld. ”

20. See Appendix B for a discussion of the problem confronting

Exxon. ,

21. A similar situation exists at Exxon’s Bayway, New Jersey

refinery.

15

Ill.

The NRDC is Estopped to Challenge The EPA's

Approval of Implementation Plans Permitting

the Issuance of Variances

The EPA’s interpretation of the Clean Air Act with

respect to the extension of compliance dates for emission

sources is set forth at 40 C.F.R. § 51.32(f). which has

been previously quoted herein at page 5.** This regula-

tion was originally promulgated by the EPA Administrator

on August 14, 1971 at 36 Fed. Reg. 15494 as 42 C.F.R.

§ 420.32(f).** As previously indicated, this regulation and

other were promulgated for the purpose of aiding the

States in their preparation and development of implemen-

tation plans and were relied upon by the State of Georgia

and other States with respect to the implementation plans

prepared and submitted to the EPA Administrator by

January 31, 1972.°'

This suit originated in June of 1972 by the NRDC’s

filing of a Petition for Review challenging the EPA Ad-

ministrator’s approval of the State of Georgia's implemen-

tation plan on May 31. 1972.*° The EPA Administrator’s

approval of the Georgia plan reflects no more than the

application of his interpretation of the Clean Air Act re-

quirements set forth in his regulations on the requirements

for the preparation on such plans published in the August

14, 1971 Federal Register.*" However, by the time the

22. Footnote 31 of the Fifth Circuit’ s opinion identifies this sec-

tion as stating EPA's “basic position.’ 489 F.2d at 401.

23. This regulation was eventually recodified as 40 C.F.R. § 51.32

(f) on November 25, 1971 at 36 Fed. Reg. 22405.

24. See 37 Fed. Reg. 10842 et seg., May 31, 1972.

25. See 37 Fed. Reg. 10859. promulgating 40 C.F.R. $$ 52.572-4.

A few provisions of the ph were disapproved.

26. See 40 C.F.R. $ 52.02(a) as found at 37 Fed. Reg. 10846,

May 31, 1972.

Se,

16

>

NRDC filed its Petition for Review, there had been sub-

stanuial reliance by the States as well as industry upon

the EPA's interpretation of the Act concerning variances

and $ 1857c-5(f) postponements. Moreover, the Adminis-

trator’s action on the plans of many States. including

Texas, as set forth at 37 Fed. Reg. 10842 er seqg., May 31.

1972, were not challenged vy the NRDC or any other

party. Consequently, even greater reliance was placed by

these States and the emission sources obtaining variances

from these States on the EPA’s interpretation of the Act.

Although the judicial review provision of the Clean Air

Act, 42 U.S.C. 1857h-5(b), does not specifically relate

to the EPA regulations promulgated on August 14. 1971,

it is submitted that the NRDC is nevertheless estopped to

challenge these regulations or their application in view of

the substantial reliance on the regulations prior to the

challenge. Bezause of this reliance by the States and in-

dustry. the overruling of the EPA’s interpretation of the

Act will result, as set forth in the previous section, in ad-

ministrative chaos and possible severe and disastrous con-

sequences to industry and the nation as a whole. If the

NRDC had challenged the August 14, 1971 regulations

promptly after their promulgation under the judicial re-

view provisions of the Administrative Procedure Act, 5

U.S.C. §$701-706,."" the EPA could have taken steps to

preclude any substantial reliance on the regulations by the

States in the development of their implementation plans.

27. That Congress recognized the problems which would be caused

by delayed challenges to actions under the Clean Air Act is witnessed

by the 30-day limitation for filing Petitions for Review of the Admin-

istrator’s actions. 42 U.S.C. § 1857h-2(b). It is submitted that this

judicial review provision provides a guide in determining what is

reasonably prompt action in challenging an action of the EPA Ad-

ministrator. ;

i

This Court has recognized that a party is estopped on

the grounds of laches wher: there is unreasonable delay

in enforcing a right coupled with disadvantages to other

parties. Hays v. Port of Seattle, 251 U.S. 233. 239

(1920): Penn Mutual Life Insurance Co. vy. City of Aus-

tin, 168 U.S. 685, 696-701 (1898); Triangle Improve-

ment Council v. Ritchie, 314 F.Supp. 20 (S$.D.W.Va.

1969). aff'd 429 F.2d 423 (4th Cir. 1970). cert. den..

402 U.S. 497 (1971). Clearly the: facts of this case call

for the application of the doctrine of laches against the

NRDC in their challenge to the EPA’s interpretation of

the Clean Air Act with respect to variances and § 1857c-

5(f) postponements as set forth in the August 14. 197]

regulations.

CONCLUSION

It is submitted that the EPA’s interpretation of the

Clean Air Act concerning the granting of variances from

State implementation plans should be upheld and that the

decision of the Fifth Circuit Court of Appeals holding

§ 1857c-5(f) to be the exclusive deferral mechanism

should be reversed. :

Respectfully submitted,

R. GORDON GOocH

Baker & Botts

1701 Pennsylvania Ave.. N.W.

Washington, D. C. 20006

LARRY B. FELDCAMP

Baker & Botts

3000 One Shell Plaza

Houston, Texas 77002

18

CERTIFICATE OF SERVICE

| hereby certify that three copies of the foregoing Brief

Amicus Curiae have been personally delivered this 22hd

day of November, 1974, to the Solicitor General, counsel

for Train et al.. and Thomas B. Stoei, Jr. and Richard E.

Ayres. counsel for National Resources Defense Council.

Inc.

A-l

APPENDIX A

NOTICE

That

SHARON E. GORMAN

+4 BAY YILLA |

BAYTOWN, TEXAS 77520

and other persons,

citizens of the United States of America and State of

Texas, pursuant to subsection 304(b) of the Clean Air

Act (Sec. 12, Public Law 91-604: 84 Stat. 1706, 42

U.S.C. §$§ 1857 et seq) and 40 C.F.R. 54: 36 E.R. 23386,

December 9, 1971, hereby give notice as a prerequisite

to the commencement of a civil action to enforce the law

and will show in the appropriate United States Courts as

follows:

~-

I.

That, the Administrator of the Environmental Protec-

tion Agency approved the State of Texas’s plan for achiev-

ing the federal ambient air quality standards under the

Clean Air Act Amendments of 1970. And that said plan

allows Texas officials to grant variances from particular

requirements of the plan. And that the plan directs Texas

Officials to take into account economic impact and tech-

nological feasibility in the discharge of their duties under

the Texas Clean Air Act (Article 4477-5, sec. 3.13

VACS).

II.

That, the Texas Air Control Board has granted vari-

ances from the particular requirements of the Texas Clean

A-2

Air Act and rules, regulations and orders of said Board.

© That said variances are contrary to the requirements of

the implementation plan prescribed by the Federal Clean

Air Act.

III.

That certain corporations doing business in the State of

Texas [the names of which are attached hereto as appen-

dix A] from and after January 1, 1974, and each and

every day thereafter have emitted and continue to emit

air contaminants into the atmosphere so as to violate the

emission standards and limitations required by the Texas

Clean Air Act and Rules and Regulations adcpted by the

Texas Air Control Board, under variances issued by the

Texas Air Control Board. And that said emissions into

the atmosphere are unlawful.

IV.

That under the case of the Natural Resources Defense

Council y. Environmental Protection Agency, Civil No.

72-2402 (Sth Cir., Feb. 8, 1974), the conduct of the

Administrator, Texas Air Control Board, and above men-

tioned. corporations is clearly illegal.

Respectfully,

/s/ J. R. Needham

J. RAYMOND NEEDHAM

Old Cotton Exchange Bui'ding

202 Travis

Houston, Texas 77002

Attorney for Sharon E. Gorman

-A-3

Alcoa (Aluminum Company of America)

American Petrofina Company

ASARCO (American Smelting & Refining Company)

Celanese Corporation

Champlin Petroleum Company

Exxon Company U.S.A.

Gulf Oil Company U.S.

- Mobil Chemical Company

~Phillips Petroleum Compaity

Rio Grande Sugar Growers

Texaco Incorporated

Texas Eastern Transmission Corporation

‘-Union Carbide Corporation

Union Oil Company o! California

+

B-1

APPENDIX B

TEXAS AIR CONTROL BOARD

PUBLIC HEARING

IN“THE MATTER OF

“EXXON COMPANY. U. & A.

Houston, Texas

May 4, 1973

HEARINGS EXAMINER: Gerald R. Severson

STAFF MEMBERS PRESENT:

Tom Buckle

Tommy Ray

Sabino Gomez

.(Mr. Johnson speaking from p. 14-17

of Hearing Transcript )

Mr. Johnson: * * *

... As the Texas regulations on particulate emissions were

finalized in early 1972. it appeared that electrostatic pre-

cipitators. which I will refer to as ESP’s probably from

here on, it appeared that ESP’s would be marginal in their

ability to meet the Texas regulations on our two cat units,

marginal meaning that it was not clear if ESP’s could or

could not meet the regulations. The primary reason for

this is that the Texas regulations include so-called conden-

sable particulates in the definition of the regulated partic-

ulate emissions. These condensable particulates, which are

B-2

primarily sulfates, exist in a gaseous form in the cat unit

flue gas and are not removed by ESP’s. We have sone

~Vu- “Graphs which I hope some ol it you can sée. Can you

all see? Vu-Graph | shows = effect of condensable par-

ticulates using cat unit No. 2 as an example. The tlue gas

coming out of the carbon monoxide furnaces contains

about 480 pounds per hour of Catalyst fines and 85 to

100 pounds per hour of condensable particulates. for a

total particulate emission rate of 565 to 580 pounds per

hour. ESP’s can remove about 92 percent of the catalyst

fines but none of the condensables. Therefore the emis-

sions after installation of ESP’s would be about 40 pounds

an hour of catalyst fines and 85 to 100 pounds an hour

of condensables. for a particulate emission of 125 to 140

pounds per hour for an overall removal efficiency of 76

to 78 percent. The emission limit for cat unit No. 2. de-

termined from Rule 105.1. is 140 pounds per hour. which

means that ESP’s would be marginal in Meeting the Texas

regulations on this particuler unit. We determined that

ESP'’s would also be marginal at our cat unit No. 3. The

New Jersey regulations also include conderszbles in the

regulated particulate emission. and Exxon’s engineering

staff at the Bayway. New Jersey refinery deterinined that

ESP’s could not meet the New Jersey regulations. Because

of the inability of ESP’s and other conventional technology

to meet the New fersey regulations and the fact that these

technologies were marginal in Texas and in our desire to

do a better job. our company in early 1972 began inten-

sive engineering work to find. a method for reducing cat

unit particulate emissions that would meet the regulations,

The problem with condensable parviiculates Suggested the

possibility of wet scrubbing. but we found that ihe wet

scrubbing process had not been oe for use in cat

unit service—or, to the best of our k vledge. even pilot

B-3

tested in this service. Therefore, we undertook laboratory

and then pilot-scale wet gas scrubbing research and de-

velopment, looking at several scrubber systems. Based on

our studies of three different pilot plant installations and

our engineering evaluation of other technologies, we have

concluded that wet scrubbing is potentially the best method

for control of cat unit emissions. Comparing our wet

scrubbing research and development: data with the more

conventional means of cat unit emission control, namely

ESP’s, we have found that wet scrubbing is potentially a

better. process for several reasons. First. wet scrubbing is

more efficient that ESP’s for dry solids removal. Second,

wet scrubbing removes condensable particulates while

ESP’s do ngt. Third, wet scrubbing removes sulfur dioxide

while ESP’s*do not. Fourth, it is potentially more reliable

than ESP’s. The second Vu-Graph illustrates these wet

scrubbing advantages, using the predicted performance of

cat unit No. 2 as an example. At the top of the Vu-Graph,

we have again shown the predicted particulate removal

efficiencies using ESP’s. Also shown are the approximate

SO. emissions from our CO furnaces. Note that ESP’s do

not remove SO.. At the bottom of the Vu-Graph is the

predicted performance of wet gas scrubbing, which we

have abbreviated WGS. Catalyst removal efficiencies are

in the range of 92 to 97 percent: condensable removal

efficiencies. 70 to 90 percent, for an overall removal effi-

ciency of 88 to 96 percent. Total particulate emissions are

expected to be 25 to 70 pounds per hours, compared with

125 to 140 for ESP’s. Also note that SO. removal effi-

ciencies are in the range of 90 to 95 percent. * * *

C-1

APPENDIX C

Exxon Company, U.S.A.

Posi Otlice Box 3950

Baytown, Texas 77520

Refining Department

Baytown Refinery

E. T. Di Corcia

Manager

May 10, 1973

Additional Testimony

Texas Air Control Board

Hearing On Compliance Status

File: M.73 10-9-3(8 )

»Mr. Jerry Severson. Hearing Exarniner

Texas Air Control Board

820 East 53rd Street

Austin, Texas 78751

Dear Mr. Severson:

In order to supplement the information we presented

at the May 4, 1973. Texas Air Control Board public hear-

ing on the compliance status of Exxon Company. U.S.A.

With respect to Regulations I and V. we are enclosing

additional testimony to be submitted into the hearing

record.

This information has been notarized as is required for

submission into the hearing record.

If you have questions concerning this statement. please

contact Mr. J. M. Johnson at Area Code 713, 427-5711.

Extension 3159,

Very truly yours,

/s/ E. T. Dit Corcia

:jaa

A Division of Exxon Corporation

C-2

ADDITIONAL TESTIMONY—TEXAS AIR

CONTROL BOARD HEARING ON

~COMPLIANCE STATUS

*

Economic Impact of Shutting Down FCCUs

We considered two cases in making the evaluation—

shutting down both FCCUs during January 1974 and

shutting down FCCU No. 3 from February 1974 to

August 1975.

Shutting down both FCCU No. 3 and FCCU wo. 2

during January 1974 would shut down most o: the Re-

tinery. Assuming that we would not lay off our 2.000

employees during this period, the economic loss wouid be

$8,500,000. Gasoline production would be reduced by

6,900,000 gallons/day or 89 percent of refinery capacity.

Heating oil production would drop 2,200,000 gallons/day

(83 percent of capacity). Other fuel products would drop ~

by 670,000 gallons per day.

The effect of shutting down FCCU No. 3 alone from

February 1974 until August 1975, when wet gas scrub-

bing should be in operation, is also drastic. The total eco-

nomic loss for this time period would be $80.000.000.

Gasoline production would be reduced by 3.800.000 gal-

lons per day (49 percent oi total capacity); heating oil

would be reduced by 1,800,000 gallons per day (66 per-

cent of capacity); and other fuel products would be re-

duced by 340.000 gallons per day.

3K * oo