486 F.2d 375 (D.C. Cir. 1973), 72-1073, Portland Cement Ass'n v. Ruckelshaus

Docket Nº:72-1073.
Citation:486 F.2d 375
Party Name:PORTLAND CEMENT ASSOCIATION an Illinois not-for-profit corporation, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. Medusa Portland Cement Co. and North-western States Portland Cement Co., Intervenors.
Case Date:June 29, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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486 F.2d 375 (D.C. Cir. 1973)

PORTLAND CEMENT ASSOCIATION an Illinois not-for-profit corporation, Petitioner,

v.

William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent.

Medusa Portland Cement Co. and North-western States Portland Cement Co., Intervenors.

No. 72-1073.

United States Court of Appeals, District of Columbia Circuit.

June 29, 1973

Argued Jan. 29, 1973.

As Amended on Denial of Rehearing Oct. 1, 1973.

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[Copyrighted Material Omitted]

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Robert E. Haythorne, with whom Perry S. Patterson, Washington, D. C., was on the brief for petitioner.

James R. Walpole, Atty. Dept. of Justice with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark and Martin Green, Attys., Dept. of Justice, were on the brief, for respondent. Raymond N. Zagone, Atty., Dept. of Justice also entered an appearance for respondent.

Robert H. Shepard, Mason City, Iowa, was on the brief for intervenor, North-western States Portland Cement Co.

William H. Wallace, Cleveland, Ohio, was on the brief for intervenor, Medusa Corp.

Turner T. Smith, Jr., filed a brief on behalf of Long Island Lighting Co. and National Asphalt Pavement Ass'n, as amici curiae urging reversal.

Perry S. Patterson, Washington, D. C., entered an appearance for intervenors.

Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.

LEVENTHAL, Circuit Judge:

Portland Cement Association seeks review 1 of the action of the Administrator

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of the Environmental Protection Agency (EPA) in promulgating stationary source standards for new or modified portland cement plants, pursuant to the provisions of Section 111 of the Clean Air Act. 2 Medusa Corporation and Northwestern States Portland Cement Company were granted leave to intervene by this court and they together with petitioner, will be referred to as the cement manufacturers. Long Island Lighting Company has filed a brief as an Amicus Curiae.

I. STATEMENT OF THE CASE

Section 111 of the Clean Air Act directs the Administrator to promulgate "standards of performance" governing emissions of air pollutants by new stationary sources constructed or modified after the effective date of pertinent regulations. 3 The focus of dispute in this case concerns EPA compliance with the statutory language of Section 111(a) which defines "standard of performance" as follows: 4

(1) The term "standard of performance" means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated.

After designating portland cement plants as a stationary source of air pollution which may "contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare", under Section 111(b)(1)(A) of the Act, 5 the Administrator published a proposed regulation establishing standards of performance for portland cement plants. The proposed regulation was accompanied by a document entitled "Background Information For Proposed New-Source Performance Standards," which set forth the justification. 6 Interested parties were afforded an opportunity to participate in the rule making by submitting comments, and more than 200 interested parties did so. 7 The "standards of performance" were adopted by a regulation, issued December 16, 1971, which requires, inter alia, that particulate matter emitted from portland cement plants shall not be: 8

(1) In excess of 0.30 lb. per ton of feed to the kiln (0.15 Kg. per metric ton), maximum 2-hour average. (2) Greater than 10% opacity, except that where the presence of uncombined water is the only reason for failure to meet the requirements for this subparagraph, such failure shall not be a violation of this section.

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The standards were justified by the EPA as follows: 9

The standards of performance are based on stationary source testing conducted by the Environmental Protection Agency and/or contractors and on data derived from various other sources, including the available technical literature. In the comments of the proposed standards, many questions were raised as to costs and demonstrated capability of control systems to meet the standards. These comments have been evaluated and investigated, and it is the Administrator's judgment that emission control systems capable of meeting the standards have been adequately demonstrated and that the standards promulgated herein are achievable at reasonable costs.

On March 21, 1972, EPA published a "Supplemental Statement in Connection With Final Promulgation", 10 amplifying the justification for its standards and indicating that it had been prompted by the action of this court in Kennecott Copper Corp. v. E.P.A., 149 U.S.App.D.C. 231, 462 F.2d 846 (1972), to offer "a more specific explanation of how [the Administrator] had arrived at the standard." This statement relied principally on EPA tests on existing portland cement plants to demonstrate that the promulgated standards were achievable.

The action of the Administrator has been challenged on the following grounds: (1) The Administrator did not comply with the National Environmental Policy Act of 1969 (NEPA). (2) Economic costs were not adequately taken into account and the standards unfairly discriminate against portland cement plants, in comparison with standards promulgated for power plants and incinerators. (3) The achievability of the standards was not adequately demonstrated.

II. COMPLIANCE WITH NEPA

Petitioners argue that EPA acted contrary to the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4335, in failing to file a "NEPA" statement in conjunction with the promulgation of the stationary standards. They draw particularly on the language of § 102(2)(C) of NEPA which states: 11

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall-

******

* * *

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-

(i) the environmental impact of the proposed action . . . .

1. Petitioners, in effect, predicate an EPA obligation to file an impact statement on this simple syllogism: (1) All federal agencies must file an impact statement; (2) EPA is a federal agency; (3) EPA must file an impact statement. Anaconda Copper Co. v. Ruckelshaus, 4 ERC 1817, 1828 (D.Col.1972). If the premises be accepted, the logic is clear. But the argument is more simplistic than simple, for the premises require a more precise determination of legislative intent. In ascertaining congressional intent we begin with the language of a statute, 12 but this is subject to an overriding requirement of looking to all sources including purpose and legislative history, to ascertain discernible

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legislative purpose. 13 The question is whether EPA is a "federal agency" within the meaning of NEPA-whether, and to what extent, Congress intended it to be subject to the NEPA mandate concerning preparation of impact statements.

2. A primary purpose of NEPA, and specifically the impact statement requirement, was the design to coordinate disparate environmental policies of different federal agencies. 14 At the time NEPA was enacted on January 1, 1970, 15 EPA was not yet in existence. EPA was created by Reorganization Plan No. 3, submitted to Congress on July 9, 1970, 16 which was designed to bring under one roof the major environmental federal programs which until that time had been scattered throughout different agencies of the government. It is by no means clear, as will appear, that NEPA's impact statement requirement was intended at time of passage of NEPA to be applicable to such environmental agencies as the National Air Pollution Control Administration of the Department of Health, Education and Welfare or the Federal Water Quality Administration of the Department of the Interior. But even assuming it was applicable to them, it does not necessarily follow that NEPA is applicable to EPA, which Congress did not have before it, and which in its own organization accomplished the purpose of coordination of environmental approach. In statutory interpretation, the courts must often, in effect, consider what answer the legislature would have made as to a problem that was neither discussed nor contemplated. Montana Power Co. v. F.P.C., 144 U.S.App.D.C. 263, 445 F.2d 739 (1970) (en banc), cert. denied, 400 U.S. 1013, 91 S.Ct. 566, 27 L.Ed.2d 627 (1971).

3. The impact statement issue requires us to consider not only NEPA, but also the Clean Air Act and particularly the statutory scheme by which new stationary source standards are promulgated. 17

Section 111 of the Clean Air Act establishes precise time schedules for the promulgation of new source standards. 18 The Administrator was required to publish, 90 days after December 31, 1970, a list of categories of stationary sources which "contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare." Within 120 days of the inclusion of a category, the Administrator is required to propose standards, and 90 days thereafter the standards are to go into effect. Obviously, a strong argument can be made that the Clean Air Act, and the provisions for unusual expedition in disposing of the complex environmental and other problems faced by the agency, assumed that the agency would not be subject to the additional time...

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