National Asphalt Pavement Ass'n v. Train

• Decision Date: 21 July 1976
• Docket Number: 74-1388,Nos. 74-1332,s. 74-1332
• Citation: 539 F.2d 775,176 U.S.App.D.C. 296
• Parties: , 176 U.S.App.D.C. 296, 6 Envtl. L. Rep. 20,688 NATIONAL ASPHALT PAVEMENT ASSOCIATION, a Maryland not-for-profit Corporation, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Respondent. WARREN BROTHERS COMPANY, a Division of Ashland Oil, Inc. and Ashland Oil Inc., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 775

539 F.2d 775

9 ERC 1109, 176 U.S.App.D.C. 296, 6

Envtl. L. Rep. 20,688

NATIONAL ASPHALT PAVEMENT ASSOCIATION, a Maryland

not-for-profit Corporation, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

WARREN BROTHERS COMPANY, a Division of Ashland Oil, Inc.

and

Ashland Oil Inc., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 74-1332, 74-1388.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 22, 1975.

Decided July 21, 1976.

T. Neal Combs, Washington, D.C., with whom George D. Webster and William I. Althen, Washington, D.C., were on the brief, for petitioner in No. 74-1332.

Theodore L. Garrett, Washington, D.C., with whom H. Edward Dunkelberger, Jr. and John P. Rupp, Washington D.C., were on the brief, for petitioner in No. 74-1388.

William L. Want, Atty., Dept. of Justice, Jeffrey O. Cerar, Atty., E.P.A., Washington, D.C., of the bar of the Court of Appeals of New York, pro hac vice by special leave of court, with whom Wallace H. Johnson, Asst. Atty. Gen., Robert V. Zener, Gen. Counsel, E.P.A., Edmund B. Clark, Martin Green and James R. Walpole, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents.

Before McGOWAN and MacKINNON, Circuit Judges, and JAMES B. McMILLAN, ^* United States District Judge for the Western District of North Carolina.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

Section 111 of the Clean Air Act, 42 U.S.C. § 1857c-6 (1970 and Supp. IV, 1974), directs the Administrator of the Environmental Protection Agency (EPA) to maintain a list of stationary sources which "may contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare." Id. § 1857c-6(b)(1)(A) (1970). Within 120 days after the Administrator designates a particular source category as a "significant contributor," he must publish proposed standards of performance for sources within that category. The statute defines a standard of performance as:

(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.

Id. § 1857c-6(a)(1). The Administrator must afford interested parties an opportunity to comment on the proposed standards, and, after considering such comments and making appropriate modifications, he must promulgate final standards within 90 days after publication of the proposed standards. Id. § 1857c-6(b)(1)(B) (Supp. IV, 1974).

On June 11, 1973 the Administrator published a notice in the Federal Register indicating that he had amended his list of "significant contributors" to include asphalt concrete plants. 38 Fed.Reg. 15380. On that same day he also published proposed standards of performance for new or modified asphalt concrete plants. Id. at 15406. After considering written comments on the proposed standards, the Administrator published final standards of performance on March 8, 1974. 39 Fed.Reg. 9307.

The National Asphalt Pavement Association (NAPA) and various asphalt concrete plants then invoked our exclusive review jurisdiction, 42 U.S.C. § 1857h-5(b) (1) (Supp. IV, 1974), filing a petition in this court challenging the action of the Administrator on the following grounds: (1) the Administrator failed to provide interested parties with a meaningful opportunity to comment on the designation of the asphalt concrete industry as a "significant contributor"; (2) the Administrator erred in determining that asphalt concrete plants are "significant contributors" within the meaning of the Act; ¹ and (3) there is insufficient evidence in the record (a) to support the Administrator's conclusion that the standards of performance are achievable through the best systems of emission reduction and (b) to show that the Administrator took attendant costs into account. For the reasons set forth below, we affirm the action of the Administrator.

I

Petitioners first argue that they were never given a meaningful opportunity to comment on the Administrator's designation of the asphalt concrete industry as a "significant contributor" within the meaning of the Clean Air Act. ² The thrust of petitioners' complaint appears to be that in simultaneously publishing the "significant contributor" designation and proposed standards of performance, the Administrator indicated that he had already reached a final determination on the " significant contributor" designation and did not consider it open for discussion during the informal rulemaking procedure. See Brief for Warren Brothers at 21 (Simultaneous publication of the designation and the proposed standards "virtually ensured that that determination would be immune from meaningful public comment."). We think an examination of the published notices, the agency's response to written comments, and record correspondence between petitioners and the EPA indicates that the "significant contributor" designation was subject to comment as a threshold question in the rulemaking process, and that petitioners were specifically informed of that fact.

We begin with the notices published in the Federal Register on June 11, 1973. The first notice, published in the "Notices" section of the Federal Register, announced that the Administrator, after considering available information, had determined that the asphalt concrete industry was a "significant contributor" pursuant to section 111 of the Act. The notice also announced that proposed standards of performance were being published that same day. 38 Fed.Reg. 15380.

The second notice, appearing in the "Proposed Rules" section of the Federal Register, announced that "the Administrator proposes herein standards of performance" for new and modified asphalt concrete plants, and that, "(a)s prescribed by section 111, this proposal of standards was preceded by the Administrator's determination that (asphalt concrete plants) contribute significantly to air pollution which causes or contributes to the endangerment of the public health or welfare . . . ." Id. at 15406. After stating that interested persons could participate in the informal rulemaking by means of written comments, the Administrator invited comments on "all aspects of the proposed regulations." Id. at 15407.

Petitioners point to the language inviting comment on all aspects of the proposed regulations, contending that the Administrator indicated that "the substance of the proposed regulations was open for discussion but whether (the Administrator) was justified in setting such standards in the first place was not." Brief for Warren Brothers at 17. This strikes us as a niggardly interpretation, for one very important aspect of the proposed regulations is whether they comport with section 111's requirement that the source category be a "significant contributor."

Petitioners also point to language in the preamble to the final performance standards, which reads as follows:

"The preamble to the proposed standard . . . urged all interested parties to submit factual data during the comment period to ensure that the standard for asphalt concrete plants would, upon promulgation, be consistent with the requirements of section 111 of the Act."

39 Fed.Reg. 9309 (1974) (emphasis added by petitioner Warren Brothers). According to petitioners, this preamble indicates that performance standards of some sort would be promulgated for new and modified asphalt concrete plants, and that the only issue considered by the agency was the nature of the specific limitations. Brief for Warren Brothers at 17-18. But the preamble clearly notes that final standards must be consistent with the provisions of section 111 of the Act, and one of the requirements of that section, as noted above, is that the source category be a "significant contributor."

There is other evidence in the record indicating that petitioners understood the designation issue as open for comment. Petitioner Warren Brothers informs us that it fully supported NAPA's efforts to have the EPA hold a hearing on the "significant contributor" designation, and refers the court to record correspondence between NAPA and EPA concerning that hearing request. The letter to the EPA from counsel for NAPA, dated June 21, 1973 (within the period available for the submission of written comments), states:

It is proffered that the asphalt plants do not contribute significantly to air pollution, thereby causing or contributing to the endangerment of public health or welfare. The data upon which the Environmental Protection Agency has relied in making this determination of the significant contribution is based upon old data no longer applicable and the equipment which is presently available results in no significant endangerment of public health or welfare. Consequently, in view of the fact that there is no significant contribution to air pollution, we believe that the Environmental Protection Agency has no authority under the regulations to proceed with the issuance of this standard.

For this reason, it is also suggested that an oral hearing be presented so that every opportunity may be provided for the industry to establish the facts in an oral proceeding subject to cross-examination. Also, we desire the opportunity to cross-examine the appropriate persons within the Agency who have made the determination that there is a significant contribution. It is especially necessary that this be done because, despite the repeated rendition of the facts to the Environmental Protection Agency, such facts have been completely ignored by its staff.

App. at 570. That letter clearly suggests that counsel for NAPA considered the "significant contributor" designation open for comment, and that NAPA desired procedures in addition to those required by ...