Essex Chemical Corporation v. Ruckelshaus, 72-1072
| Decision Date | 10 September 1973 |
| Docket Number | No. 72-1072,72-1079.,72-1072 |
| Citation | 486 F.2d 427 |
| Parties | ESSEX CHEMICAL CORPORATION et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. APPALACHIAN POWER COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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Robert C. Barnard, Washington, D. C., with whom Donald L. Morgan and Edward Maguire, Washington, D. C., were on the brief, for petitioners in No. 72-1072. Kenneth L. Rachman, Jr., and Douglas E. Kliever, Washington, D. C., also entered an appearance for petitioners in No. 72-1072.
H. Edward Dunkelberger, Jr., Washington, D. C., with whom Theodore L. Garrett, Washington, D. C., was on the brief, for petitioners in No. 72-1079.
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 in No. 72-1072.
Thomas C. Lee, Atty., Dept. of Justice, of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark and Martin Green, Attys., Dept. of Justice, were on the brief, for respondent in No. 72-1079.
Turner T. Smith, Jr., filed a brief on behalf of Long Island Lighting Co. and National Asphalt Pavement Assn., as amici curiae urging reversal.
Before WRIGHT and TAMM, Circuit Judges, and DAVIES,* Senior District Judge for the District of North Dakota.
These two appeals, consolidated for purposes of argument and decision, are taken from the action of the Administrator of the Environmental Protection Agency EPA in setting "standards of performance" for new or modified stationary sources of pollution pursuant to the mandate of § 111 of the Clean Air Act, as amended Act, 42 U.S.C. § 1857c-6 (1970). Among the stationary sources for which standards were set are sulfuric acid plants, subject to challenge in No. 72-1072, and coal-fired steam generators, subject to challenge in No. 72-1079. See 40 C.F.R. §§ 60.1, et seq. Even when limited to the scope of review prescribed by the Supreme Court in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), we find that the Administrator's action as to certain aspects of the standards must be remanded for further proceedings; as to the bulk of the standards, however, we find that the Administrator has acted properly within the scope of his authority and not in abuse of his discretion.
On March 31, 1971, pursuant to the requirement of § 111 of the Act, 42 U.S.C. § 1857c-6 (1970),1 the EPA published a list of categories of stationary air pollution sources which significantly contribute to the endangerment of public health and welfare. The list included steam generators, incinerators, sulfuric acid plants, nitric acid plants, and portland cement plants. 36 Fed.Reg. 5931 (March 31, 1971). Thereafter, on August 17, 1971, proposed regulations were published establishing federal standards of performance for each new source category on the list. 36 Fed.Reg. 15704 (August 17, 1971). Issued concurrent with the proposed regulations were documents entitled "Background Information for Proposed New-Source Performance Standards" and "Summaries of Test Data," which set forth the justification for the new proposed standards. In December of 1971, after receiving and evaluating more than 200 comments from interested parties,2 the EPA published final regulations, 40 C.F.R. part 60, incorporating only minor changes from the proposed regulations. 36 Fed.Reg. 24876 (December 23, 1971).
On January 21 and 24, 1972, Essex Chemical Corp., et al. (No. 72-1072), Portland Cement Association (No. 72-1073), and Appalachian Power Co., et al. (No. 72-1079), petitioned for review in this court pursuant to § 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b)(1) (1970),3 challenging the standards set by the EPA for sulfuric acid plants, portland cement plants, and coal-fired steam generators, respectively. Shortly thereafter this court issued its decision in Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972), concerning a national secondary ambient air quality standard promulgated by the EPA pursuant to § 109(b) of the Act, 42 U.S.C. § 1857c-4(b) (1970), wherein a remand was ordered so that the EPA might "supply an implementing statement that will enlighten the court as to the basis on which the Administrator reached the . . . standard . . . ." Id. at 850. In light of the Kennecott Copper decision the EPA subsequently published a "Supplemental Statement in Connection with Final Promulgation," 37 Fed.Reg. 5767 (March 21, 1972), in order to avoid the problems presented in Kennecott Copper and thus "ensure the rapid conclusion of judicial review of the validity of the stationary source standards." Id.4
On June 29, 1973, another panel of this court issued an opinion remanding the record to the EPA for further proceedings regarding the standards of performance for portland cement plants, Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. ___, 486 F.2d 375 (1973). While the records in the two cases sub judice are substantially different from that in Portland Cement and consequently engender differing conclusions as to the legality of the standards, several issues are so similar and so conclusively dealt with by the Portland Cement decision that they can be treated summarily by this court in its determinations today.
One issue raised and extensively briefed in both No. 72-1072 and No. 72-1079 is the consequence of the Administrator's failure to file an "impact statement" pursuant to § 102(2)(c) of the National Environmental Policy Act of 1969 NEPA, 42 U.S.C. § 4332(2)(c) (1970).5 Petitioners here allege (as was alleged in Portland Cement) that the EPA, merely because it is an environmentally oriented agency, is not exempt from the NEPA provision that in "major Federal actions significantly affecting the quality of the human environment," all Federal agencies are subject to the requirement that the responsible official file "a detailed statement . . . on . . . the environmental impact of the proposed action." Petitioners pointedly note that an impact statement, if filed, would have required the EPA to consider factors such as alternative adverse environmental effects and cost/benefit analyses to a considerably more significant degree than that which the record shows actually occurred.
The Portland Cement panel, per Judge Leventhal, extensively analyzed the considerations pertaining to a general, limited, or non-existent exemption for the EPA from the NEPA impact statement requirements. See Portland Cement, supra, 486 F.2d 379-387. The panel concluded, leaving for another time the consideration of whether the EPA was completely exempt from the rigors of an impact statement,6 that the EPA was exempt at least in its action in promulgating the § 111 standards. The determination was founded upon a "proper" construction of the § 111 mandate that the "standard of performance" reflect "the best system of emission reduction" and require the Administrator to take into account "the cost of achieving such reduction." As "these criteria require the Administrator to take into account counter-productive environmental effects of a proposed standard,7 as well as economic costs to the industry," the decision that an impact statement is not required in this specific instance strikes a "workable balance between some of the advantages and disadvantages of full application of NEPA." Id. at 385, 386. The court stated:
What is decisive, ultimately, is the reality that, section 111 of the Clean Air Act, properly construed, requires the functional equivalent of a NEPA impact statement.
Id. at 16. Finding no good reason to divert from or expand upon the logic of the Portland Cement decision, we adhere to the position that no NEPA impact statement need be filed by the Administrator in making his § 111 determinations.8
The standards promulgated by the Administrator restrict "acid mist" discharge to no greater than "10 percent opacity" in sulfuric acid plants and "particulate matter" discharge to no greater than "20 percent opacity" in coal-fired steam generators.9 See 40 C.F.R. §§ 60.83(b), 60.42(b). Opacity is defined as the "degree to which emissions reduce the transmission of light and obscure the view of an object in the background." 40 C.F.R. § 60.2(j). A 10 percent opacity standard was established for the portland cement stationary sources of pollution and the Portland Cement court, impressed both by the arbitrariness of the test—it is essentially a subjective test on the part of trained inspectors who attempt to judge the per cent of opacity present in a smoke plume—and the persuasive challenges on the part of the petitioners,10 found that further consideration and explanation of the efficiency and objectivity of the test was necessary prior to its adoption as a standard:
It is one thing to use a method of testing to observe possible violations of a standard; it is another to constitute that method as the standard itself. If the opacity test is to be a standard, and if violations can result in enforcement actions without further testing, the standard must be consistent with the statute and congressional intent.
Portland Cement, supra, 486 F.2d 401. Similar opacity standards are challenged in both suits before us today and the principles requiring further consideration are unchanged. The record must be remanded for additional consideration and explanation by the Administrator regarding the reasonableness of the opacity standards.11
Petitioners in both No. 72-1072 and No. 72-1079 raise objections in varying...
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