ASARCO, Inc. v. Environmental Protection Agency

No. 76-1030 (D.C. Cir. January 27, 1978; filed February 28, 1978)

In a separate opinion, Judge MacKinnon dissents in part from the court's decision, 8 ELR 20164, that the Environmental Protection Agency (EPA) is without authority under the Clean Air Act to use the "bubble concept" in applying new source performance standards to modifications at existing facilities. In his view, the EPA Administrator does have authority, within the broad grant of discretion given him by § 111 of the Act, to promulgate regulations effectively exempting certain modified stationary sources from the new source performance standards. Directly disagreeing with the majority opinion, he concludes that Congress intended the term "facility" to include whole plants and that EPA's use of the bubble concept was necessary to counterbalance the agency's restrictive definition of affected facilities as constitutent part of plants. He also suggests that this case presents problems of ripeness and standing.

Counsel are listed at 8 ELR 20164.

Opinion by MacKinnon, J., concurring in part and dissenting in part.

Before WRIGHT, LEVENTHAL and MacKINNON, Circuit Judges.

None

[8 ELR 20277]

MacKINNON, Circuit Judge, concurring in part and dissenting in part:

I dissent from the judgment of the court for two general reasons. Primarily, I feel that the Administrator is vested with authority — under the terms of 42 U.S.C. § 1857c-6(b) (1) (B) directing him to "establish Federal standards of performance for new sources" and 42 U.S.C. § 1857c-6(b) (2) authorizing him to distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards" — to promulgate regulations effectively exempting certain "modified" stationary sources from the requirement of compliance with New Source Performance Standards (NSPSs). The court's opinion does not adequately consider the possibility, suggested by Judge Leventhal's concurrence but not taken to its logical conclusion there, that in stating that certain modifications will not be subject to NSPSs, the Administrator is in fact promulgating an NSPS — concededly a somewhat unusual one but nevertheless one fully within the Administrator's discretion to establish — for these sources. No reason has been advanced why the "standards" that the EPA is directed to promulgate cannot in certain cases be standards of non-regulation or simply of prior emission levels, and this is all that the Agency has in effect attempted to do in this case.

I agree with Judge Leventhal that the Administrator could promulgate different NSPSs for modified as opposed to reconstructed or new stationary sources, but I cannot see why Judge Leventhal — while conceding that the Administrator has the authority to set such different standards — refuses to accept that the Agency can, in "distinguishing among classes, types and sizes, within categories of new sources," establish as an NSPS that certain sources need not conform to any new standards. If the Administrator could set the NSPS so high for modified, as opposed to reconstructed or new, sources that the former would plausibly never violate such standards (or merely establish standards sufficiently different for modified as opposed to new or reconstructed sources that the former would be left significantly less regulated), why should the Agency be disabled from effectively exempting them from NSPSs altogether? Merely because the Administrator has phrased his different treatment for modified as opposed to new or reconstructed sources in terms of an exemption from a standard rather than in terms of a lesser standard we should not determine that he has exceeded his authority. To do so seems overly formalistic in the context of a statute in which there is abundant language confirming that Congress, recognizing the difficulty of balancing economic and ecological goals, had meant to extend generous authority for discretionary decisions to the EPA.

The court argues that — regardless of what other authority Congress meant to grant the Agency to implement the Clean Air Act — as the regulations embracing the bubble concept defined "facility" and "modification" in terms facially conflicting with those used in the statute itself, the Administrator exceeded his authority in promulgating such rules. I agree that the semantic route chosen by the EPA to effect a partial bubble concept was somewhat dubious, but I feel that the court has inadequately appreciated the background of broad administrative discretion against which the Act is set.

One need only peruse section 111 of the Act in order to become convinced of the broadness of the discretion with which Congress meant to clothe the Administrator in implementing that section. For example, in promulgating standards of performance for new stationary sources he has discretion (1) to "publish . . . (and . . . revise) a list of categories of stationary sources"; (2) "to determine if a "category of stationary sources "contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare"; (3) to "promulgate . . . such standards with such modifications as he deems appropriate . . . [and] from time to time, revise such standards . . . ." (Emphasis added). These grants of discretionary authority, when read in conjunction with the authority, referred to above, to distinguish between categories of new sources, point so clearly to a congressional intent to allow the Administrator a wide-ranging license to accommodate the environmental mandate of the Act with the exigencies of technology and economics that I am unwilling to accept the court's decision that the bubble concept lies outside the reach of his discretion.

The misguided literalism of the court's approach is perhaps better exposed by examining its effect on another regulation, more obviously legitimate than the bubble concept, promulgated by the Administrator. In 40 C.F.R. § 60.14(e) (1) "maintenance, repair, and replacement which the Administrator determines to be routine for a source category" are held not to be "modifications." Applying the same rigorous semantic technique that the court invokes in proscribing the bubble concept, however, one would be compelled to insist that 42 U.S.C. § 1857c-6(a) (4) defines modification to be "any physical change . . . which increases the amount of air pollutant emitted." (Emphasis added.) It is hard to see how the court could consistently reject the EPA's regulations embracing the bubble concept and not also reject its exemption of routine maintenance from the category of "modification" when the latter obviously involves a "physical change" and may increase pollution. It seems to me, however, incrediblt that Congress would have meant to dissuade manufacturers from repairing their equipment by the potentially harsh threat of being forced to comply with an NSPS, or that this court would reject the EPA's recognized expertise in administering the Clean Air Act [8 ELR 20278] and invalidate 40 C.F.R. § 60.14(e) (1). If this court would do so, as its reasoning in this case suggests it would, I fear that it will go far toward preempting the discretion Congress plainly intended allow the EPA in accommodating the various conflicting interests affected by the Clean Air Act.

In addition to the general grants of discretionary power to the Administrator under the Act, there is a persuasive concrete indication that Congress meant to invest the Administrator with discretion to promulgate the bubble concept, or something very much like it, in the contrast between the prohibitions on modifications under section 111 of the Act (42 U.S.C. § 4657c-6) — with which we are here concerned — and under section 112 (42 U.S.C. § 1857c-7) dealing with hazardous pollutants. Under section 111, it is only unlawful for "an owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source," 42 U.S.C. § 1857c-6(i) (emphasis added), i.e., in violation of the regulation promulgated by the Administrator — which regulation might embrace the bubble concept. In sharp contrast to this relatively mild prohibition is the language of section 112(c) which specifically provides that "no person may . . . modify any existing source which, in the Administrator's judgment, will emit [a hazardous] air pollutant . . . in violation of [the national emission] standard [for that pollutant]." I agree that were we concerned here with hazardous air pollutants, the Administrator would have exceeded his authority had he promulgated a bubble concept. However, that Congress clearly knew how to proscribe this concept in section 112 and did not do so in section 111 seems to me to militate against the holding of the court. In my view of the statute Congress plainly intended, as one would expect they would, to treat modifications involving hazardous air pollutants more strictly than those involving non-hazardous ones, and yet the court seems willing to ignore the self-evident difference between section 111 and 112 because of a devotion to literalist statutory construction and the truism that the Act was meant not only to maintain, but to enhance air quality. Congress was manifestly aware of how to proscribe the bubble concept when it desired to do so. It did not do so in section 111, and neither should this court.

My disagreement with the majority's proscription of the bubble concept is aggravated by a conviction that in many instances the Administrator has applied too narrow a meaning to the word "facilities" in promulgating his regulations governing emission standards. I doubt, although I need not reach the issue, that the Administrator could be said to have abused his expansive discretion in promulgating these regulations, but in my opinion the narrowness with which he particularized the concept of "facility" in the context of rules for various industries not only distorted legislative purpose but also accentuated the need for something like the bubble concept. The EPA's attempt to embrace the bubble concept was a laudable attempt to adjust its regulations to be more consistent with the true intent of Congress. It is this corrective effort that the court invalidates.

Congress defined a "stationary source" to mean "any building, structure, facility, or installation which emits or may emit any air pollutant." 42 U.S.C. § 1857c-6(a) (3). It did not define "facility," and specifically did not indicate that it intended a facility to mean anything that may emit any air pollutant. The EPA regulations do not define "facility" either. However, an "affected facility" (emphasis added) is defined in the regulations to mean "with reference to a stationary source, any apparatus to which a standard is applicable." 40 C.F.R. § 60.2(e). 40 C.F.R. § 60.2(aa) defining existing facility and the EPA's application of these terms in various concrete contexts seems similarly restrictive. The regulations demonstrate a distinct reluctance to refer to entire plants as single facilities. This was not an attitude shared by Congress, and certainly not one in accord with common usage. (Of course, if an entire plant is deemed a "facility," the bubble concept has in many cases been effectively embraced, as then, by the very statutory language on which the court's opinion relies, any of the plant's constituent parts could be modified although their particular emission level was increased so long as that of the plant in general remained constant).

In ascertaining the statutory meaning of the term "facility," it is important to note that Congress used the word in conjunction with "building, structure . . . [and] installation[s]." These terms, with which "facility" is grouped, all refer to conglomerate entities capable of housing a number of machines, pieces of equipment, etc. Even if the ordinary usage of the term did not persuade that Congress intended it to comprehend entire plants, or at least such large and independent devices as, for example, blast furnaces, the context in which "facility" is used in the statute would go far towards convincing us of this interpretation, and accordingly of the legislative sanction for the bubble concept.

Moreover, the common meaning of "facility" is such that Congress would have to have shown some affirmative desire to restrict this meaning to preclude "facility" encompassing, in some instances, whole plants."Facility" does not have any precise meaning, nor is it a legal term of art; its meaning must be determined from common usage, see, e.g., People ex rel. Schlaegler v. Bunge Bros. Coal Co., 392 Ill. 153, 64 N.E.2d 365 (1946); State ex rel. Knight v. Cave, 20 Mont. 468, 52 P. 200 (1898), and here in part from its statutory context. The common usage of the word is set forth in Webster's Third International Dictionary 812-813 (1961) which defines "facility" as "something (as a hospital, machinery, plumbing) that is built, constructed, installed or established to perform some particular function or to serve or facilitate some particular end." (Emphasis added.) A hospital seems an appropriate equivalent of a "plant," and "facility" is often used to refer to the latter, e.g., Falkner v. Northern States Power Co., 75 Wisc.2d 116, 248 N.W.2d 885, 901 (1977) (nuclear power station is a "facility"); Lincoln Bank & Trust Co. v. Exchange National Bank & Trust Co., Ardmore, Okla., 383 F.2d 694, 697 (10th Cir. 1967) (bank is "facility").

"Facility" does not refer to a small machine or piece of equipment, but only to those that are of sufficient magnitude and functional independence to perform a separable, integrated operation. For example, a taconite plant consists of a large grinding machine (one machine), the extracting operation (many machines), and the pelletizing operation (two coordinated machines). Collectively, the combination of these three operations constitute a facility, and if the three operations were housed separately each might be termed a facility, but it would not be in keeping with the meaning of the word as used in the statute to refer to each of the many machines in the pelletizing [8 ELR 20279] operation, as a "facility." In combination they are, separately they are not.

There is no indication that in drafting the Clean Air Act Congress intended to use "facility" as a term of art, more restricted in scope than it is in ordinary parlance; indeed, as mentioned above, the terms with which the Act groups "facilities" indicates quite the contrary. It should be noted, moreover, that the statute nowhere distinguishes facility and plant. All we can conclude from the phrasing of the Act is that Congress considered "building," "structure" and "installation" to have somewhat similar connotations but some differences from a "facility," and this along is not at all suggestive that the legislature meant to treat individual machines as facilities or that it meant to distinguish facilities and plants.

The regulations, however, while they apply "facility" in its customary — and statutory — sense in certain places, e.g., Iron and Steel Plants (oxygen process furnace) § 60.140; Coal Preparation Plant, § 60.215(a); Asphalt Concrete Plant, § 60.90; Incinerators of stated consumption, § 60.50, also contain numerous instances where the "apparatus" the regulations sometimes refer to as a "facility" do not rise to the dimensions of a "facility" as that word is used in the statute. Under my interpretation of the regulations, there are numerous instances where the Administrator has referred to individual units of machines, equipment and apparatus as "facilities" where such equipment is not of sufficient size, quantity or capacity to constitute a "facility" as the statute uses that term.

For example, in portland cement factories, the following are deemed "facilities": kiln, clinker cooler, raw mill system, finish mill system, raw mill dryer, raw material storage, clinker storage, finished product storage, conveyor transfer points, bagging and bulk loading and unloading systems, 40 C.F.R. § 60.60 (1976); and in primary lead smelters, the following are deemed "facilities": sintering machine, sintering machine discharge end, blast furnace, dross reverberatory furnace, electric smelting furnace, and converter. 40 C.F.R. § 60.180 (1976). While some of these "facilities" — e.g., the blast furnace in the primary lead smelters — may indeed correspond to the statutory meaningof the term, the tendency to splinter functioning wholes into smaller "apparatuses" seems clear.

Because the Administrator often defines "facility" too narrowly for purposes of the regulations, the bubble concept serves a valuable corrective function. This concept places the restriction that no modifications increasing air pollution be made not on what the Administrator has established in the first instance to be a facility, but on a larger unit. Where it is this larger unit that more nearly approaches the statutory meaning of facility, the bubble concept has effectively served to bring the regulations more in line with the legislative intent. As I feel that Congress intended to deal, in most cases, with entire plants as facilities under section 111, the bubble concept — although a more circuitous approach than simply revising the regulations establishing which apparatuses are "facilities" — is not only within the Administrator's discretion, but also an accomplishment of congressional purpose.

The majority opinion, in sharp contract to the analysis set forth above, appears to dismiss out of hand any suggestion that "facility" could refer to an entire plant:

Thus, the present regulations, instead of limiting the definition of "stationary source" to one "facility" as the statute does, make it cover "any one or combination of" facilities. The preamble to the new regulations makes it clear that the purpose of this change is to define a statutory source as an entire plant.

Slip op. at 11-12 (footnotes omitted). This overly narrow application of the term "facility" leads to an unwarranted antipathy to the bubble concept. Quite apart from the issue of the range or discretion granted the Administrator, because the majority opinion apparently sees facilities in terms of individual machines rather than integrated combinations thereof, it is forced to perceive the bubble concept as a perversion rather than a fulfillment of the legislative objectives. And because the majority opinion sees the concept as a distortion of the statute, it cannot be receiptive to the argument that although it might have been more direct fr the Administrator simply to re-promulgate his regulations applying the term "facilities" in various specific contexts, the Agency's adoption of the bubble concept was a realization, not a distortion, of the dictates of the Clean Air Act.

To summarize, in those cases where the bubble concept was only serving to offset the existing regulations' restrictive interpretation of "facility," promulgating the regulations embodying this concept was not only a matter within the Administrator's discretion, it was fully consonant with the terms of the statute. In those cases where the regulations' application of "facility" to particular industries is in accord with the usual and statutory meaning of the term, the bubble concept — although it may in certain instances be somewhat at variance with the statutory language — is within the broad discretion vested in the Administrator. In the latter cases the majority opinion significantly reduces the flexibility with which the Act was intended to be implemented; in the former cases, the opinion misapprehends the words of the statute.

III

The court's failure to perceive the overnarrowness of its, and in some instances the Administrator's, interpretation of "facility"; and its apparent refusal to appreciate the extremely broad discretion with which the EPA was vested in order to reconcile the various vital and contradictory interests profoundly affected by the implementation of the Act in my opinion is due, at least in part, to the somewhat abstract terms in which the instant dispute was presented. Constitutional considerations aside, when courts attempt to adjudicate under such circumstances as we have here they operate, lacking the concreteness of a particularized dispute, in an informational vacuum. As a result, the tribunal is liable to err due to the necessity of evaluating the issues before it in the abstract rather than through the perspective gained from examining an actual instance in which the issues arise where the regulations are actually being applied.

While I do not feel that this case should be dismissed either for prematurity or lack of standing, Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), I do feel that it has many of the earmarks of cases that are disposed of on such grounds. The law of standing is proverbially confused, see, e.g., K. Davis, Administrative Law Text § 22.01 (3d ed. 1972); Scott, Standing in the Supreme Court — A Functional Analysis, 86 HARV. L. REV. 645, 645 n.1 (1973); Lewis, Constitutional Rights and the Misuse of "Standing," 14 STAN. L. REV. 433, 434; Note, Standing to Assert Constitutional Jus Tertii, 88 HARV. [8 ELR 20280] L. REV. 423, 423 n.1 (1974), and recent Supreme Court cases seem to adopt virtually contradictory approaches towards it, compare Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) and Linda R.S. v. Richard D., 410 U.S. 614 (1973). At present, the law appears to be retreating from the generous standing doctrine of several years past, compare United States v. SCRAP, 412 U.S. 669 (1973) and Warth v. Seldin, 422 U.S. 490 (1975). A "trifling or speculative" interest is no longer sufficient to admit the plaintiff to the court-room, see Warth v. Seldin, supra; compare United States v. SCRAP, supra; Linda R.S. v. Richard D., supra; Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 211-212 (1972). Current doctrine indicates that one who is regulated by a statute or regulation does not ipso facto have standing to challenge it, but rather "the law is that one who is regulated lacks standing unless he can show an interest that is adversely affected" (emphasis added), K. Davis, Administrative Law in the Seventies, Appendix 177 (1977). For example, in Warth v. Seldin, supra — the latest major Supreme Court ruling on standing — builders governed by an ordinance were denied standing even though they alleged that the statute prevented them from building the type of housing they desired, as were other low income plaintiffs who alleged that they desired to obtain such housing.In that case, the Court stated:

Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. . . . We hold only that a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court's intervention. Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of "a real need to exercise the power of judicial review" or that relief can be framed "no broader than required by the precise facts to which the court's ruling would be applied."

422 U.S. at 502, 508.

The Sierra Club's interest in this case is very speculative. Allegation of injury to one's environment is sufficient to have standing, but there has as yet been no tangible injury to the environment. Cf. Sierra Club v. Morton, 405 U.S. 727 (1972), and the possible deleterious effect of the EPA's accommodation of the industry's desire for the "bubble concept" are far from clear. Perhaps the flexibility which this concept would allow manufacturers in developing and installing new machinery now could in the future, when new means of pollution control are found, actually allow for quicker enhancement of air quality than would have been possible had the bubble concept been totally repudiated. If and when the Sierra Club can demonstrate a concrete injury, they may, of course, gain access to the courts, see Sierra Club. v. Morton, 348 F. Supp. 219 (N.D. Calif. 1972), but at this point there must be considerable doubt as to whether they are legitimate plaintiffs.

The question of standing naturally suggests the issue of ripeness, see K. David, Administrative Law Text § 22.01 (1958). It has long been clear that courts will not — whether for constitutional or prudential reasons is a matter of some debate, see e.g., Berger, Standing to Sue in Public Actions: Is It a Constitutional Right, 79 YALE L.J. 816 (1969) — adjudicate a "controversy" which has not become sufficiently concrete, see e.g., Rescue Army v. Municipal Court, 331 U.S. 549 (1947); Massachusetts v. Mellon, 262 U.S. 447 (1923). Absent a particular application of a regulation, this court itself has held that the question was not ripe for adjudication, National Assoc. of Insurance Agents, Inc. v. Board of Governors of the Federal Reserve System, 489 F.2d 1268, 1271 (D.C. Cir. 1974); cf. Alabama Assoc. of Insurance Agents v. Board of Governors of the Federal Reserve, 533 F.2d 224 (5th Cir. 1976).

To the extent that this case presents the issue of whether agency regulations comply with the statute under which they have been promulgated, it poses a "purely legal" question that is ripe for decision. Abbott Laboratories v. Gardner, supra; Bethlehem Steel v. EPA, 536 F.2d 156 (7th Cir. 1976); National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 695 (D.C. Cir. 1971). This appeal, however, hinges in large part on the proper interpretation of "facility" as used in the statute, and the court in dealing with this issue is to some extent rendering a purely advisory opinion. Had the court been presented with a specific factory (or part thereof), plant, or other constructed unit and been asked to determine whether or not it was a "facility" within the meaning of the Act, it would have been operating within traditional judicial competence, but no such concrete example was presented. Our decision should await such a presentation. The case may not be premature in a formal sense, but the court has indirectly been asked to elucidate the meaning of statutory language and virtually to become a part of the rule-making process, without the benefit of a specific example. I venture to suggest that in this case the court has suffered exactly that "entangling [of] themselves in abstract disagreements over administrative policies" that the ripeness doctrine was meant to avoid, Abbott Laboratories v. Gardner, supra, 387 U.S. at 148. If a concrete example of a "facility" had been actually involved in this case, the opinion might well have arrived at a different interpretation of the meaning of the term, and one which, in my view, would more closely approximate its meaning in commonsense and in the statute.

I respectfully dissent to the extent indicated above. As I feel that the Administrator was well within his discretion in applying the bubble concept only to modified and not to new or reconstructed facilities, however, I concur in the result — although not in the rationale — of the court's dismissal of ASARCO's argument that the inconsistency of the Administrator's position required extending the bubble concept to new and reconstructed sources as well as those that had merely been modified.