Portland Cement Ass'n v. Train, 72-1073

• Decision Date: 22 May 1975
• Docket Number: No. 72-1073,72-1073
• Citation: 513 F.2d 506,168 U.S.App.D.C. 248
• Parties: , 168 U.S.App.D.C. 248, 5 Envtl. L. Rep. 20,341 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 506

513 F.2d 506

7 ERC 1941, 168 U.S.App.D.C. 248, 5

Envtl. L. Rep. 20,341

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.

Argued April 1, 1975.

Decided May 22, 1975.

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 the frame of reference for this opinion, other issues will be touched upon as well.

Questions 1 and 2 are directed to petitioner's contention that the emission standard for cement plants is more stringent than those for incinerators and coal-fired power plants, and, also, for plants of the competing asphalt industry, as to which, however, no question had been raised at the agency level.

Petitioner's contention is weakened by its admission, made in its comments on the Administrator's draft response to the remand, that the standard for the portland cement industry is achievable by that industry. Moreover, our remanding opinion indicated our disagreement with petitioner on the subject of different emission standards for different industries. See, 486 F.2d at 389. Amplifying upon what we there said, we find no reasonable basis for invalidating as discriminatory the achievable emission standard for cement plants. Proof of unreasonableness in the diversity of the standards referred to is lacking. No doubt the Administrator will be influenced by accumulating experience should it give rise to reasons for modification of the range now existing between the prescribed standards.

Petitioner's question No. 3 is very generally phrased. Neither the terms of our remand nor the proceedings now before us require an answer by the court. We note, however, that of course section 111 of the Act requires the Administrator to take into account the cost of achieving the emission reduction he prescribes. In our remanding opinion we did not require respondent to prepare a quantified cost-benefit analysis, showing the benefit to ambient air conditions as measured against the cost of the pollution control devices. We stated, however, that such studies as might be adduced in comments should be considered and that the Administrator should also consider contentions and presentations that the adopted standard unduly precludes the supply of cement, including whether it is unduly preclusive as to certain qualities, areas, or low-cost supplies. Though the Administrator found that "relating the cost of control to the benefits of the control at least at this time is a practical impossibility," he went on to state that where the costs of meeting standards would be greater than the industry could bear and survive, such standards could not be implemented by the industry regardless of technological feasibility, and, moreover, that a gross disproportion between achievable reduction in emission and cost of the control technique would not be required. Here too we find no reason to disagree with the Administrator's disposition of this aspect of the remand. The industry has not shown inability to adjust itself in a healthy economic fashion to the end sought by the Act as represented by the standards...