513 F.2d 506 (D.C. Cir. 1975), 72-1073, Portland Cement Ass'n v. Train

Docket Nº:72-1073.
Citation:513 F.2d 506
Party Name:Envtl. PORTLAND CEMENT ASSOCIATION, an Illinois not-for-profit Corporation, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Respondent, Medusa Portland Cement Company and Northwestern States Portland Cement Company, Intervenors.
Case Date:May 22, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 506

513 F.2d 506 (D.C. Cir. 1975)

Envtl.

PORTLAND CEMENT ASSOCIATION, an Illinois not-for-profit

Corporation, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent,

Medusa Portland Cement Company and Northwestern States

Portland Cement Company, Intervenors.

No. 72-1073.

United States Court of Appeals, District of Columbia Circuit

May 22, 1975

Argued April 1, 1975.

Page 507

Robert E. Haythorne, Chicago, Ill., with whom Edward W. Warren, Scranton, Pa., was on the brief, for petitioner.

William L. Want, Atty., Dept. of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark and Martin Green, Attys., Dept. of Justice, were on the brief, for respondent.

Before FAHY, Senior Circuit Judge, and LEVENTHAL [*] and ROBB, Circuit Judges.

PER CURIAM:

The court remanded to the Administrator of the Environmental Protection Agency, respondent, the case then before us involving the validity of the stationary source standards 1 he had promulgated 2 under section 111 of the Clean Air Act 3 for new or modified portland cement plants. Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Some of the matters the court then reviewed on the petition of the Portland Cement Association we concluded required further consideration and clarification, hence the remand. These matters have now been reconsidered and clarified in the Administrator's Response to the Remand Order, formulated after his draft of such Response had been the subject of comments by the Association and others. The Association has again petitioned this court, to decide whether the Administrator has complied with the remand order and whether the standards should be affirmed or set aside.

At argument petitioner's counsel relied upon a formulation of positions which he handed to the court and which reads as follows:

  1. Do established constitutional guarantees against statutory discrimination apply to environmental regulations?

  2. If so, may the victim of a discriminatory regulation have it set aside through direct judicial review?

  3. Under what, if any, circumstances could economic considerations produce a standard lower than the highest technologically achievable?

  4. How does a standard prohibiting momentary excessive emissions conform to a statute whose purpose is curbing the total volume of pollution?

  5. How can plume opacity be (a) valid standard when pollution and plume opacity can not be reliably correlated and evaluations of the same plume by several qualified observers will vary substantially?

The issues raised in these questions are more limited than those presented by petitioner in its brief. Therefore, although the questions will form...

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