Petition for Writ of Certiorari — Maine v. United States Environmental Protection Agency
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OCT 20 1988
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Supreme Court of the United tates: oe JR.
October Term, 1988 J
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STATE OF MAINE, COMMONWEALTH OF PENNSYLVANIA,
STATE OF CONNECTICUT, STATE OF VERMONT,
STATE OF NEW HAMPSHIRE, STATE OF NEW JERSEY,
and RICHARD L. OTTINGER,
Petitioners,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
and LEE THOMAS, Administrator, CINCINNATI GAS &
ELECTRIC COMPANY, et al., MONONGAHELA POWER
COMPANY, NORTH AMERICAN COAL CORPORATION, et al.,
PEABODY HOLDING COMPANY, INC., et al.,
TENNESSEE VALLEY AUTHORITY,
Respondents.
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PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
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Tuomas Y. Au JAMEs E. TIERNEY
Assistant Chief Counsel Attorney General of the
Commonwealth of Pennsylvania = State of Maine
Department of Environmental
THomas D. EN
Resources D. Warr
514 Executive House pr Aad yee pew a
P.O. Box 2537 ounsel of Record for
Harrisburg, Pennsylvania 17120 all Petitioners)
(717) 787-4488 Grecory W. SAMPLE
Assistant Attorney General
Office of the Attorney General
State House Station No. 6
Augusta, Maine 04333
(207) 289-3661
(Additional Counsel for Petitioners
Appear on the Following Page)
COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964
OR CALL COLLECT (402) 342-2831
JeFFREY L. AMEsTOY
Attorney General of the
State of Vermont
J. WALLAcE MALLEYy, Jr.
Assistant Attorney
General
Office of the Attorney
General
109 State Street
Montpelier, Vermont 05602
(802) 828-3171
Cary EDWARDS
Attorney General of the
State of New Jersey
Paut H. SCHNEIDER
Deputy Attorney General
Environmental Protection
Section
Richard J. Hughes Justice
Complex (CN-112)
Trenton, New Jersey 08625
(609) 292-1500
Hon. RicHarD L. OTTINGER
Pace University School
of Law
78 North Broadway
White Plains, New York
10603
(914) 681-4234
JoserH I. LIEBERMAN
Attorney General of the
State of Connecticut
BRIAN COMERFORD
Assistant Attorney General
State Office Building
Room 147
Hartford, Connecticut 06106
(203) 566-7213
STEPHEN E. MERRILL
Attorney General of the
State of New Hampshire
GeEorGE DANA BISBEE
Assistant Attorney General
State House Annex
25 Capitol Street
Concord, New Hampshire
03301
(603) 271-3679
QUESTIONS PRESENTED
Since 1970, § 110 of the Clean Air Act has listed
eleven requirements for EPA approval of the State Imple-
mentation Plans (SIPs) by which the Act’s national clean
air goals are to be achieved. In 1977 a new requirement
addressing interstate air pollution was adopted, and an
administrative petition procedure was created to enforce
the terms of the new requirement.
The questions presented are:
1. By enactment of the new interstate air pollution
requirement, did Congress implicitly direct EPA to
review previously approved SIPs under the new
requirement?
2. When no such review has been conducted, is
review of previously approved SIPs at least required for a
specific case of interstate air pollution raised by adminis-
trative petition?
3. Ifa state suffers from interstate visibility impair-
ment as defined by law, is the state’s right to relief by
petition to EPA nullified by EPA’s failure to establish the
required national regulatory program for visibility?
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PARTIES TO THE PROCEEDING
This case challenges final action of the Administrator
of the United States Environmental Protection Agency
under § 126(b) of the Clean Air Act on petitions concern-
ing interstate air pollution. 42 U.S.C. § 7426(b). The States
of New York, Maine, Connecticut, Vermont, New Hamp-
shire and New Jersey, the Commonwealth of Massa-
chusetts, and Richard L. Ottinger were petitioners in No.
84-1592. The Commonwealth of Pennsylvania and the
States of New York and Maine were petitioners in No.
85-1082. The United States Environmental Protection
Agency and its Administrator, then William Ruckelshaus,
were respondents in both proceedings. The cases were
consolidated on March 11, 1985.
Intervening below on behalf of respondents were
Cincinnati Gas & Electric Company, Ohio Power Com-
pany, Ohio Edison Company, Ohio Valley Electric Corpo-
ration, Columbus & Southern Ohio Electric Company,
Commonwealth Edison Company, Illinois Power Com-
pany, Indiana-Kentucky Electric Corporation, Indiana &
Michigan Electric Company, Southern Indiana Gas &
Electric Company, Indianapolis Power & Light Company,
Consumers Power Company, Toledo Edison Company,
The Cincinnati Gas & Electric Company, Monongahela
Power Company, North American Coal Corporation, The
NACCO Mining Company, Peabody Holding Company,
Inc., Peabody Coal Company and Tennessee Valley
Authority.
Pursuant to Rule 19.6 of this Court, all petitioners,
respondents and respondent-intervenors below other
than Petitioners here are Respondents in this Court.
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TABLE OF CONTENTS
Page
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Pee OP ON WW UIONEIORS 5 on cass casecccoccces ii
eine Ses sk eke sas kc kine cede: iv
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ea Ses ok ak eve esa aw wae aee 1
Statutory Provisions Involved...................... 1
I E's Win ois 6 oo 0k sau Kan bk edues 3
Reasons For Granting The Writ.................... 8
If EPA’s construction of the interstate provisions of
the Clean Air Act is upheld, downwind states have
no effective remedy when interstate air pollution
prevents their achieving national clean air goals,
contrary to the express intention of Congress.... 8
ET 5 LEI ang a ee er 15
iv
TABLE OF AUTHORITIES
Page
CASES
Air Pollution Control District of Jefferson County,
Kentucky v. EPA, 739 F.2d 1071 (6th Cir. 1984)..... 11
Alabama Power Co. v. Costle, 606 F.2d 1068 (D.C.
See A as uch. Oa ca ae ete adtea te aa tien a ke ace ee 10
Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir.
ie ee ea ei a eters el aie na tee 10, 13, 14
Chevron, U.S.A., Inc. v. Natural Resources Defense
eo a a | ee eer Pere 13
Cleveland Electric Illuminating Co. v. EPA, 572 F.2d
I a ny 08 ke 8 eae ad eee Ohne 8
Connecticut v. EPA, 656 F.2d 902 (2d Cir. 1981) .. 13, 14
Connecticut v. EPA, 696 F.2d 147 (2d Cir. 1982) ...... 11
Maine, et al. v. Thomas, 690 F.Supp. 1106 (D.Me.
1988), appeal docketed (1st Cir. No. 88-1983)........ 13
Natural Resources Defense Council v. EPA, 483 F.2d
8 ge Re perrer er rer rr err rary Tre 5
New York v. EPA, 710 F.2d 1200 (6th Cir. 1983) .. 12, 13
New York v. EPA, 716 F.2d 440 (7th Cir. 1983).... 12, 14
New York, et al. v. Ruckelshaus, (D.D.C. No.
84-0853), 21 Env. Rpt. Cases [BNA] 1721 (1984) ..... 7
United States v. Shimer, 367 U.S. 374 (1961).......... 13
STATUTES
I er RU rot on Creed tee ee 1
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TABLE OF AUTHORITIES-Continued
Page
The Clean Air Act of 1970
§ 101(a)(3), 42 U.S.C. § 1857(a)(3) (1976)............ 4
§ 110(a)(2)(A)-(H), 42 U.S.C.
§ 1857c-5(a)(2)(A)-(H) (1976) ....... 2... cece eee 4
§ 110(a)(2)(E), 42 U.S.C. § 1857c-5(a)(2)(E) (1976) ..... 5
The Clean Air Act, as amended, 42 U.S.C. § 7401
et seq. (1983)
& 10)taMS), 42 UBL. B POR 6 ods vce ices dwsats 4
§ 110(a)(2), 42 U.S.C. § 7410(ax2) ..... 20.26... 1, 10
§ 110(a)(2)(E), 42 U.S.C. § 7410(a)(2)(E)........ passim
§ 110(a)(3)(A), 42 U.S.C. § 7410(a)(3)(A)... 22.2.2... 2
S 1ihed, 40 WBA. © Pee aces ob ees hacces 9
§ 126(b), 42 U.S.C. § 7426(b) ... 2, 6, 7, 8, 10, 11, 13, 14
§ 169A(a)(4), 42 U.S.C. § 7491(a)(4)............. 3, 12
& 169A), 42 USA. © FOO? odoin ccc svkeeds a 2
§ 169A(g)(6), 42 U.S.C. § 7491(g)(6) ............... 12
REGULATIONS AND REGULATORY MATERIALS
0 CER & SURI GHW Ee ona ohn an cicesssaadaon %,
4B CPR. | SERIO GHG vn sist ce eden dusesuneneeen
44 Fed.Reg. 35179 (June 18, 1979) ...................
49 Fed.Reg. 34851 (Sept. 4, 1984)...............0202:
49 Fed.Reg. 48152 (Dec. 10, 1984).............. 1, 6,
LEGISLATIVE MATERIALS
H.R. Rep. No. 294, 95th Cong., 1st Sess., reprinted in
1977 U. S. Code Cong. & Admin. News 1077 .. 5, 9,
10
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
The States of Maine, Pennsylvania, Connecticut, Ver-
mont, New Hampshire and New Jersey and Richard L.
Ottinger petition for a Writ of Certiorari to review a
decision of the United States Court of Appeals for the
District of Columbia Circuit in Case Nos. 84-1592 and
85-1082.
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OPINION BELOW
The Opinion of the Court of Appeals is reported at
852 F.2d 574 (D.C. Cir. 1988), and is reprinted in the
Appendix, infra, at A-1 to A-17. In substance, the Court's
decision affirms the final action of the Administrator of
the U. S. Environmental Protection Agency published at
49 Fed.Reg. 48152 (Dec. 10, 1984), reprinted in the Appen-
dix, infra, at B-1 to B-25.
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JURISDICTION
The judgment of the Court of Appeals was entered
on July 22, 1988. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1254(1).
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STATUTORY PROVISIONS INVOLVED
42 U.S.C. § 7410(a) (2) The Administrator
shall, within four months after the date required for
submission of a plan under paragraph (1), approve or
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disapprove such plan for each portion thereof. The
Administrator shall approve such plan, or any por-
tion thereof, if he determines that it was adopted
after reasonable notice and hearing and that-
* * *
(E) it contains adequate provisions (i) prohibic-
ing any stationary source within the State from emit-
ting any air pollutant in amounts which will (I)
prevent attainment or maintenance by any other
State of any such national primary or secondary
ambient air quality standard, or (II) interfere with
measures required to be included in the applicable
implementation plan for any other State under part C
to prevent significant deterioration of air quality or
to protect visibility, and (ii) insuring compliance with
the requirements of section 126, relating to interstate
pollution abatement;
* * *
(3)(A) The Administrator shall approve revi-
sion of any implementation plan applicable to an air
quality control region if he determines that it meets
the requirements of paragraph (2) and has been
adopted by the State after reasonable notice and pub-
lic hearings.
42 U.S.C. § 7426(b) Any State or political subdivi-
sion may petition the Administrator for a finding
that any major source emits or would emit any air
pollutant in violation of the prohibition of Section
110(a)(2)(E)(i). Within 60 days after receipt of any
petition under this subsection and after public hear-
ing, the Administrator shall make such a finding or
deny the petition.
42 U.S.C. § 7491(a)(1) Congress hereby declares
as a national goal the prevention of any future, and
the remedying of any existing, impairment of visi-
bility in mandatory class I Federal areas which
impairment results from manmade air pollution.
* * *
(4) Not later than twenty-four months after the
date of enactment of this section, and after notice and
public hearing, the Administrator shall promulgate
regulations to assure (A) reasonable progress toward
meeting the national goal specified in paragraph (1),
and (B) compliance with the requirements of this
section.
(b) Regulations under subsection (a)(4) shall-
(1) provide guidelines to the States, taking
into account the recommendations under subsec-
tion (a) (3) on appropriate techniques and
methods for implementing this section (as pro-
vided in subparagraphs (A) through (C) of such
subsection (a) (3)), and
(2) require each applicable implementation
plan for a State in which any area listed by the
Administrator under subsection (a)(2) is located
(or for a State the emissions from which may
reasonably be anticipated to cause or contribute
to any impairment of visibility in any such area)
to contain such emission limits, schedules of
compliance and other measures as may be neces-
sary to make reasonable progress toward meet-
ing the national goal specified in subsection (a),
including-
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STATEMENT OF THE CASE
The petitioners are northeastern States which claim a
right to federal protection from excessive air pollution
transported into their jurisdictions from upwind states —
a claim arising from amendments to the Clean Air Act, 42
U.S.C. § 7401, et seq., that were enacted in 1977.
The 1977 Interstate Pollution Amendments
The Clean Air Act of 1970 established a Federal/State
partnership which recognizes that “the prevention and
control of air pollution at its source is the primary
responsibility of States and local governments.” Section
101(a)(3), 42 U.S.C. § 1857(a)(3) (1976) and 42 U.S.C.
§ 7401(a)(3). However, the federal Environmental Protec-
tion Agency (“EPA”) was directed to establish a national
program for air pollution control, including the establish-
ment of primary and secondary national ambient air
quality standards (“NAAQS”) designed to protect the
public health and welfare, and other national measures
limiting air pollution. Each state was required to adopt a
plan, known as the State Implementation Plan (“SIP”), to
achieve the national air quality goals.
Assurance that each SIP is adequate to attain the
national air quality goals is achieved through approval of
each plan by EPA, applying criteria enumerated in
§ 110(a)(2), formerly 42 U.S.C. § 1857c-5(a)(2)(A)-(H)
(1976). In the 1970 Act, the only provision addressing the
extraterritorial effect of any state’s air pollution emis-
sions was a requirement that the Administrator deter-
mine that:
(E) [The SIP] contains adequate provisions for inter-
governmental cooperation, including measures nec-
essary to ensure that emissions of air pollutants from
sources located in any air quality control region will
not interfere with the attainment or maintenance of
such primary or secondary [National Ambient Air
Quality] standard in any portion of such region out-
side of such State or in any other air quality control
regions.
42 U.S.C. § 1857c-5(a)(2)(E) (1976). EPA interpreted this
provision as necessitating only an information exchange
among the states. 40 CFR § 51.21(c) (1972). This limited
reading was upheld in the Natural Resources Defense Coun-
cil v. EPA, 483 F.2d 690, 692-93 (8th Cir. 1973).
However, Congress became aware that achieving the
national air quality goals could well be frustrated by the
cumulative effect and the interstate movement of air pol-
lution emissions.!
Congress further concluded that the 1970 Act, as
construed by EPA, offered no effective mechanism to
prevent or abate interstate air pollution, and so amended
it in 1977. House Report, 329-330, 1408-1409. The former
interstate pollution provision was repealed and replaced
by the current provision, making federal approval contin-
gent upon a finding that:
1 The House Report accompanying the 1977 amendments
to the Clean Air Act notes that “air pollution now is known to
travel long distances, borne by moving air masses.” H.R. Rep.
No. 294, 95th Cong., 1st Sess. 135, reprinted in 1977 U. S. Code
Cong. & Admin. News 1077, 1214, (hereinafter “House Report
[Report page], [U.S.C.C.A.N. page]”). The House Report con-
cluded that “while emissions may not be ‘significant’ in the
area of origin, when transported to another area and combined
with pollutants from other areas, air quality may be drastically
degraded.” Id. Such effects have been amply documented in
the Administrative Record compiled in this proceeding before
EPA. See e.g., National Academy of Sciences, “Atmosphere
Biosphere Interactions: Toward the Better Understanding of
the Ecological Consequences of Fossil Fuel Combustion,” 1981,
Certified Index to the Docket No. A-II-19; Congressional Office
of Technology Assessment, “Acid Rain and Transported Air
Pollutants,” June, 1984, No. D-IV-7.
(E) [The SIP] contains adequate provisions (i) prohib-
iting any stationary source within the State from
emitting any air pollutant in amounts which will (I)
prevent attainment or maintenance by any other
State of any such national primary or secondary
ambient air quality standard, or (II) interfere with
measures required to be included in the implicable
implementation plan for any other State under Part C
to prevent significant deterioration of air quality or
to protect visibility and (ii) ensuring compliance with
the requirements of Section 126, relating to interstate
pollution abatement [.]
42 U.S.C. § 7410(a)(2)(E).
At the same time, a special administrative remedy
was created for states and political subdivisions
aggrieved by interstate air pollution. Section 126(b) was
enacted to provide an administrative proceeding
whereby states could petition EPA “for a finding that any
major source emits or would emit any air pollutant in
violation of the prohibition of section 110(a)(2)(E)(i).” 42
U.S.C. § 7426(b). In construing this provision, “EPA
agrees ... that Section 126 may be applied to cumulative
impacts of sources that are sufficiently identified.” 49
Fed.Reg. 34858, n. 50 (Proposed decision of interstate
petitions below, Sept. 4, 1984). This interpretation was
unchanged by the agency’s final decision below: ” .. . the
adequacy of a SIP is precisely the issue in question in
Section 126 petitions.” 49 Fed.Reg. 48156 (December 10,
1984), App. B-19. In spite of these views, EPA has never
looked at the adequacy of any SIP under the new inter-
state requirement.
The States’ Petitions to EPA
In 1980 and 1981, the States of Pennsylvania, New
York and Maine filed petitions with EPA under Section
mane
Poems
126(b) requesting EPA to find that sulfur dioxide (SO,)
emissions from stationary sources in upwind states were
causing interstate air pollution prohibited by
§ 110(a)(2)(E) of the Act. Each petition documents specific
harm within the petitioning state, and each petition traces
that harm to SO, emissions sanctioned by SIPs that were
approved by EPA before the 1977 enactment of the new
interstate air pollution requirement. The petitions
requested EPA to determine whether the SIPs of seven
upwind states satisfied the revised interstate requirement
of § 110(a)(2)(E). A hearing was held on the consolidated
petitions, and the administrative record was closed in
May, 1982 after an 11-month period for public comment.
EPA took no action on the petitions until ordered to
do so by the United States District Court for the District
of Columbia. New York, et al. v. Ruckelshaus (D.D.C. No.
84-0853) 21 Env. Rptr. Cases [BNA] 1721 (1984). In
response to the court’s order, EPA denied the states’
petitions. It did so, however, without considering the
adequacy of the SIPs of the upwind states identified by
the petitions, maintaining that the agency was under no
obligation to do so. App. B-11, 12; B-24. On review, the
Court of Appeals for the District of Columbia Circuit
upheld EPA’s construction of the interstate provisions
incorporated in the Clean Air Act in 1977, and the denial
of the state petitions that resulted. App. A-8.2
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2 The Circuit Court remanded New York’s petition to EPA
for reconsideration in light of the revised NAAQS for airborne
particles adopted by the agency during the pendancy of the
litigation below. However, New York remains a party to this
action, and the construction of the interstate provisions of the
Act is obviously critical to further proceedings before the
agency.
REASONS FOR GRANTING THE WRIT
If EPA’s construction of the interstate provisions of
the Clean Air Act is upheld, downwind states have
no effective remedy when interstate air pollution
prevents their achieving national clean air goals,
contrary to the express intention of Congress.
This case involves the single largest and best docu-
mented case of transboundry air pollution occurring
within the United States. As a result of the extraordinary
quantity of sulfur dioxide emissions from the industrial
midwestern states, the northeastern region is periodically
blanketed by heavily polluted weather systems charac-
terized by very high ambient sulfate levels, regional haze
and acid rain.* In denying the administrative petitions,
EPA adopted a construction of the Clean Air Act that
effectively precludes any abatement of existing interstate
air pollution.
The legal theory of these petitions is straightforward:
(1) the petitioning states are entitled to protection against
impermissible interstate pollution through EPA review of
the SIPs of upwind states under § 110(a)(2)(E); (2) no
such review has ever been performed; and (3) under
those circumstances, a § 126(b) petition addressing a par-
ticular claim of interstate pollution triggers an EPA duty
to determine the adequacy of the SIPs of the upwind
states with respect to that pollution. The particular means
chosen by Congress to address the problem and the
3 See record citations in n. 1, supra. See also Cleveland
Electric Illuminating Co. v. EPA, 572 F.2d 1150, 1153-57 (6th Cir.
1958).
Ne Ae fa es,
express congressional intent to establish an effective
remedial mechanism support this view.
From the face of the statute alone, Congress plainly
chose to remedy the problem of interstate air pollution
through the preexisting SIP submission and approval
process of § 110.4 It is clear that EPA felt no obligation to
evaluate the interstate effects of the midwestern SIPs, or
any SIP. With respect to the existing pollution covered by
midwestern SIPs already approved, the new
§ 110(a)(2)(E) would only have been applied if a state
voluntarily resubmitted its entire SIP for review. EPA’s
reliance on that course violates two of the five “basic”
elements of the new program articulated by the House
Committee:
. an effective interstate air pollution control pro-
gram must include not only prevention of interstate
air pollution from new sources but also abatement of
pollution from existing sources.
* 2 #
...an effective program must not rely on prevention
or abatement action by the State in which the source
of the pollution is located.
House Report, at 330, 1409.
4 In so doing, Congress was no doubt aware of § 110(c),
which requires EPA to step in and promulgate any necessary
SIP measures whenever a state “fails to submit an implementa-
tion plan that meets the requirements of this section[.]” 42
U.S.C. § 7410(c).
10
The legislative history of the 1977 Amendments
shows that Congress did not intend EPA to be passive
concerning the states’ compliance with the several crite-
ria of § 110(a)(2). Congress recognized in 1977 that the
“existing law (as interpreted by the Administrator) is an
inadequate answer to the problem of interstate air pollu-
tion.” House Report at 329-330, 1408-1409. Particularly
inadequate was the Administrator’s reliance on the vol-
untary action of the states to initiate control of their own
air pollution emissions. House Report at 330, 1409. As the
Court below noted in a prior case:
[A] federalist policy of deferring to a state concern-
ing its internal growth management is inadequate to
control the problems of interstate pollution abate-
ment. For this the statute provides special mecha-
nisms [including Sections 110 and 126].
Alabama Power Co. v. Costle, 606 F.2d 1068, 1084 (D.C. Cir.
1979). Accord, Alabama Power Co. v. Costle, 636 F.2d 323,
366-67 (D.C. Cir. 1979). It was precisely Congress’ con-
cern over the adequacy of existing, approved SIPs that
led to the new provisions. The 1977 Amendments were
designed to make it possible for the states harmed by
interstate air pollution to achieve abatement by enforcing
the federal SIP oversight process. If the amendment of
§ 110(a)(2)(E) does not alone compel SIP review and
revisions where necessary, a proper petition under
§ 126(b) must plainly trigger that obligation.
Section 126(b) exists only to enable the downwind
victims of interstate pollution to enforce the new substan-
tive standard established in § 110(a)(2)(E). Yet in
responding to the petitions below, after having had them
Riis
11
under consideration for more than three years, EPA made
no effort to test the sufficiency of any SIP under
§ 110(a)(2)(E) with respect to the single pollutant that is
the focus of the petitions.> If neither § 110(a)(2)(E) nor a
§ 126(b) petition requires EPA to make a determination of
the adequacy of the upwind SIPs, then there will be no
abatement of interstate pollution from existing sources.
The remedial mechanism established by Congress in
enacting these dual provisions is defeated.
EPA contends that it has no legal obligation to deter-
mine the sufficiency of state plans with respect to existing
interstate pollution, either by the adoption of
§ 110(a)(2)(E) or in a specific case by a state’s submission
of a § 126 petition. In the language of the Court below:
The Administrator’s review of various SIP revisions
submitted by states is an ongoing process, and under
the Administrator’s interpretation the prohibition of
§ 110(a)(2)(E) is one of the requirements that must be
met before he can approve any initial SIP or revision.
App. A-12. Under that view, the real problem is never
confronted. The “initial” SIPs were approved before 1977,
5 In fact, these petitions appear to have caused EPA to
change its view of the analysis required by a § 126 petition. In
this proceeding, in contrast to its handling of the few prior
petitions filed under Section 126(b) (see Air Pollution Control
District of Jefferson County, Kentucky v. EPA, 739 F.2d 1071,
1077-79 (6th Cir. 1984); Connecticut v. EPA, 696 F.2d 147, 153-54
(2nd Cir. 1982)), EPA did not make any evaluation of the extent
of interstate pollution actually occurring or likely to be occur-
ring, given the sulfur dioxide emissions already authorized by
the midwestern SIPs then in effect.
12
and have not been reviewed since the 1977 Amendments.
In reviewing subsequent SIP revisions, EPA has carefully
limited the scope of its review to only those emissions
that are increased. Review of the combined effect of
increased emissions and existing emissions is steadfastly
refused. New York v. EPA, 710 F.2d 1200 (6th Cir. 1983);
New York v. EPA, 716 F.2d 440 (7th Cir. 1983).
As EPA’s dismissal of Maine’s visibility petition dem-
onstrates, the agency also believes that it can avoid
applying the interstate pollution prohibition to the domi-
nant form of eastern visibility impairment — regional haze
- by indefinitely postponing any national regulation of
the problem. 49 Fed.Reg. 48154; App. B-10, 11. EPA takes
this view notwithstanding the clear command of
§ 169A(a)(4) and (b)® to fully control visibility impair-
ment through the SIPs, and the broad objective stated in
§ 110(a)(2)(E) “to protect visibility,” and was upheld by
the Court of Appeals. App. A-13. Since the § 126 petition
mechanism is designed to remedy specific cases of inter-
state pollution, a petitioner is entitled to relief when it
demonstrates “visibility impairment”’” substantially
attributed to interstate pollution. EPA’s failure to promul-
gate a nationwide regulatory program for regional haze
6 42 U.S.C. § 7497(a)(4) and (b).
7? The Act defines “visibility impairment” to “include
reduction in visual range and atmospheric discoloration.”
§ 169A(g)(6), 42 U.S.C. § 7491(g)(6). By regulation, EPA has
defined “visibility impairment” as “any humanly perceptible
change in visibility (visual range, contrast, coloration) from
that which woulc. have existed under natural conditions.” 40
C.F.R. § 51.301(x) (1987).
a F
13
cannot be interposed to nullify the protection afforded by
§ 110(a)(2)(E) or the corresponding right to relief under
§ 126(b).§
The court below incorrectly adopted EPA’s inter-
pretation of the Act’s interstate provisions.? That inter-
pretation is inconsistent with decisions in three other
circuits, as well as in prior decisions of the Circuit Court
below. These decisions have all viewed a § 126 petition as
the proper mechanism to obtain consideration of the
interstate impact of existing emissions. The Second Cir-
cuit has held that § 126(b) provides an entirely separate
procedural means (apart from a proceeding under § 110
itself) for testing whether a SIP meets the requirements of
§ 110(a)(2)(E). Connecticut v. EPA, 656 F.2d 902, 907 (2nd
Cir. 1981); accord, Alabama Power Co. v. Costle, 636 F.2d
323, 367 (D.C. Cir. 1979). The Connecticut decision con-
firms that “the substantive inquiry for decision is the
same in both proceedings.” 656 F.2d at 907. The Sixth and
Seventh Circuits pointed to the § 126(b) petition as the
appropriate vehicle for considering the interstate impact
of multiple sources. New York v. EPA, 710 F.2d 1200, 1205
8 The legality of this regulatory delay is being separately
tested. (Maine, et al. v. Thomas, 690 F.Supp. 1106 (D.Me. 1988),
appeal docketed (1st Cir. No. 88-1983)).
9 The Circuit Court’s reliance on Chevron, U.S.A., Inc. v.
Natural Resource Defense Council, 467 U.S. 837 (1984), is mis-
placed. A reviewing court should not defer to an agency’s
interpretation of a statute when “it appears from the statute or
its legislative history that the accommodation is not one that
Congress would have sanctioned.” Chevron, supra. at 845, quot-
ing United States v. Shimer, 367 U.S. 374, 382, 383 (1961).
14
(6th Cir. 1983); New York v. EPA, 716 F.2d 440, 445 (7th Cir.
1983). The decision below is the first to reject that posi-
tion. EPA’s construction, endorsed by the Court below,
would allow widespread and serious cases of interstate
pollution by emission sources covered by existing SIPs to
go unchecked, as indeed they have been for the past
eleven years. App. A-16, (Ruth B. Ginsburg, concurring.)
Congress cannot be presumed to have intended that
any part of its statutory enactment would be null and
void. Even more certainly, the intention of statutory
amendments expressly designed to strengthen control of
interstate air pollution’® could not have been a reduction
of the statute’s protection against interstate air
pollution."!
The agency has taken no affirmative action against
sources of interstate air pollution under either Section
126(b) or Section 110(a)(2)(E) in the more than ten years
since those provisions were enacted, a course of inaction
which has rendered the remedial provisions null and
void.
>
10 Connecticut v. EPA, 656 F.2d 902, 909 (2d Cir. 1981);
Alabama Power Co. v. EPA, 636 F.2d 323, 366-67 (D.C. Cir. 1979).
1! As noted above at p. 5, EPA construed the 1970 version
of Section 110(a)(2)(E) to require only a mechanism for
exchanging information among the states, an obligation
embodied in regulation at 40 C.F.R. § 51.21(c) (1972). EPA’s
only regulatory response to the repeal and replacement of
Section 110(a)(2)(E) in 1977 was to repeal its regulation. 44 Fed.
Reg. 35179 (June 18, 1979) repealing 40 C.F.R. § 51.21(c).
|
'
'
;
'
'
15
CONCLUSION
The Petitioners respectfully request this Court to
grant certiorari to consider whether the interstate provi-
sions of the Clean Air Act have been seriously mis-
construed by EPA and the Court below.
Dated: October 20, 1988
Respectfully submitted,
James E. TieRNEY
Attorney General of the
State of Maine
THomas D. WARREN
Deputy Attorney General
(Counsel of Record for
all Petitioners)
Grecory W. SAmpLe
Assistant Attorney General
Office of the Attorney
General
State House Station No. 6
Augusta, Maine 04333
(207) 289-3661
THomas Y. Au
Assistant Chief Counsel
Commonwealth of
Pennsylvania
Department of Environmental
Resources
514 Executive House
P.O. Box 2537
Harrisburg, Pennsylvania
17120
(717) 787-4488
(Additional Counsel for Petitioners
Appear on Following Page)
eee
JerrreY L. AMEsToy
Attorney General of the
State of Vermont
J. WaLLace MALLEY, Jr.
Assistant Attorney
General
Office of the Attorney
General
109 State Street
Montpelier, Vermont 05602
(802) 828-3171
Cary EDWARDS
Attorney General of the
State of New Jersey
PauL H. SCHNEIDER
Deputy Attorney General
Environmental Protection
Section
Richard J. Hughes Justice
Complex (CN-112)
Trenton, New Jersey 08625
(609) 292-1500
Hon. RicHarD L. OTTINGER
Pace University School
of Law
78 North Broadway
White Plains, New York
10603
(914) 681-4234
16
Josery |. LieEBERMAN
Attorney General of the
State of Connecticut
BRIAN COMERFORD
Assistant Attorney General
State Office Building
Room 147
Hartford, Connecticut 06106
(203) 566-7213
STEPHEN E. MERRILL
Attorney General of the
State of New Hampshire
GEORGE DANA BISBEE
Assistant Attorney General
State House Annex
25 Capitol Street
Concord, New Hampshire
03301
(603) 271-3679
APPENDIX
2 ee ee ee EGLO oe ey eT ee A =
ee < r~ -
ig ee ee eee ee ee
A-1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 26, 1988 Decided July 22, 1988
No. 84-1592
STATE OF NEW YORK, et al., PETITIONERS
V.
U.S. ENVIRONMENTAL PROTECTION AGENCY and
WILLIAM RUCKELSHAUS, ADMINISTRATOR,
RESPONDENTS
MONONGAHELA POWER COMPANY,
THE NORTH AMERICAN COAL CORPORATION,
NACCO MINING COMPANY,
CINCINNATI GAS & ELECTRIC COMPANY, et al.,
PEABODY HOLDING COMPANY, et al.,
INTERVENORS
No. 85-1082
COMMONWEALTH OF PENNSYLVANIA,
STATE OF NEW YORK and STATE OF MAINE,
PETITIONERS
V.
U.S. ENVIRONMENTAL PROTECTION AGENCY and
LEE THOMAS, ACTING ADMINISTRATOR,
RESPONDENTS
PEABODY HOLDING COMPANY, et al.,
CINCINNATI GAS & ELECTRIC COMPANY, et al.,
NORTH AMERICAN COAL CORPORATION, et al.,
MONONGAHELA POWER COMPANY,
TENNESSEE VALLEY AUTHORITY,
INTERVENORS
Petitions for Review of an Order of the
Environmental Protection Agency
A-2
Gregory W. Sample and Thomas Y. Au, with whom,
Robert Abrams, Attorney General of New York, David R.
Wooley, Assistant Attorney General of New York, James
M. Shannon, Attorney General of Massachusetts, Lee
Breckenridge, Assistant Attorney General of Massa-
chusetts, J. Wallace Mally, Jr., Assistant Attorney General
of Vermont, Paul H. Schneider, Deputy Attorney General
of New Jersey, the Honorable Richard Ottinger, and James E.
Tierney, Attorney General of Maine, were on the joint
brief for petitioners. Robert Whitehead, Jr., Kenneth N. Ted-
ford and Francis X. Bellotti also entered appearances for
petitioners.
Michael A. McCord, Attorney, Department of Justice,
with whom Roger J. Marzulla, Acting Assistant Attorney
General, Alan W. Eckert, Associate General Counsel, Envi-
ronmental Protection Agency, and Charles S. Carter, Attor-
ney, Environmental Protection Agency, were on the brief
for respondents. Peter Everett, Margaret N. Strand and
Michael W. Steinberg, Attorneys, Department of Justice
also entered appearances for respondent.
Edward Berlin, with whom, Vern R. Walker, for Cincin-
nati Gas & Electric Company, et al.; James R. Bieke, Fre-
derick C. Schafrick, for Peabody Holding Company, Inc., et
al.; Ronald R. Janke, for North American Coal Corporation
and NACCO Mining Company; Michael H. Holland and
Earl R. Pfeffer for amicus International Union, United
Mine Workers of America were on the joint brief for
intervenors, Cincinnai Gas & Electric company, et al.
Thomas M. Lemberg, also entered an appearance for Cin-
cinnati Gas & Electric Company, et al.
A-3
Lawrence A. Demase and J. Daniel Hull were on the
brief for intervenor, Monongahela Power Company.
Edward S. Christenbury, James E. Fox, Thomas C. Doolan
and Gregory R. Signer were on the brief for intervenor,
Tennessee Valley Authority. Herbert S. Sanger, also
entered an appearance for intervenor, Tennessee Valley
Authority. |
Before RUTH B. GINSBURG and SENTELLE, Circuit
Judges, and PALMIERI,” Senior District Judge.
Opinion for the Court filed by Circuit Judge
SENTELLE.
Separate concurring opinion filed by Circuit Judge
RUTH B. GINSBURG.
SENTELLE, Circuit Judge: Petitioners challenge the
Environmental Protection Agency’s (EPA) denial of peti-
tions filed by three eastern states under section 126 (b) of
the Clean Air Act (“the Act”). 42 U.S.C. § 7426 (b). We
find that the EPA denial of these petitions is based on a
reasonable interpretation of the relevant statutes and is
not arbitrary of capricious. We therefore deny the peti-
tions, with the exception of the petition of the state of
New York which we remand to the Agency for the sub-
mission of new data.
*Of the United States District Court for the Southern District of
New York, sitting by designation pursuant to 28 U.S.C.
§ 294(d).
A-4
I. BACKGROUND
The Clean Air Act establishes joint state and federal
responsibility for control of the nation’s air pollution. 42
U.S.C. §§ 7401-7642 (1982). Sections 108 and 109 of the
Act, 42 U.S.C. §§ 7408 and 7409, grant authority to EPA to
set national ambient air quality standards (NAAQS) lim-
iting permissible concentrations of air pollutants. Pur-
suant to this statutory authority the EPA has established
NAAQS for a number of pollutants, including the
NAAQS for sulfur oxides, measured as sulfur dioxide
(SO), 40 C.ER. § 50.4, and for particulate matter, mea-
sured as total suspended particulate matter (“TSP”), 40
C.ER. § 50.7 (1984). On July 1, 1987, EPA promulgated a
new particulate matter standard-the PM,9 standard-
which replaced the TSP standard. 52 Fed. Reg. 24,634.
Section 110 of the Act, 42 U.S.C. § 7410, requires that
within nine months after the promulgation or revision of
an NAAQS each state must adopt and submit to the
Administrator a plan providing for the implementation,
maintenance, and enforcement of the standard in each air
quality control region within the state. Within four month
after the required submission of each state implementa-
tion plan (“SIP”), the EPA approves or disapproves the
plan based on, among other things, the eleven criteria set
forth in §§ 110(a)(2)(A)-(K) of the Act. 42 U.S.C.
§§ 7410(a)(2)(A)-(K). Subsequent revision to an SIP is
subject to approval by the same criteria. 42 U.S.C.
§ 7410(a)(3).
The requirements of § 110 include provisions dealing
with certain types of interstate air pollution. Obviously,
air movement across state borders is inevitable and the
A-5
Act does not purport to bar interstate pollution but rather
requires each SIP to contain measures
(i) prohibiting any stationary source within the State
from emitting any air pollutant in amounts which
will (I) prevent attainment or maintenance by any
other State of any such national primary or second-
ary ambient air quality standard, or (II) interfere with
measures required to be included in the applicable
implementation plan for any other State under part C
of this subchapter to prevent significant deterioration
of air quality or to protect visibility, and (ii) insuring
compliance with the requirements of section 7426 of
this title, relating to interstate pollution abatement{.]
42 U.S.C. § 7410(a)(2)(E).
Section 126(b) of the Act provides that any state
“may petition the Administrator for a finding that any
major source emits or would emit any air pollutant in
violation of the prohibition of § 7410(a)(2)(E)(i)[.]” 42
U.S.C. § 7426(b). EPA then has sixty days from the receipt
of the § 7426(b) petition to hold a public hearing and
either make the requested finding or deny the petition,
notwithstanding any permit granted by the state in which
the source is located or intends to locate. 42 U.S.C.
§§ 7426(b), 7426(c). Upon a finding of such violation of
§ 110(a)(2)(E), no new or modified source can be built or
operated in violation of the Act’s interstate requirements
and existing sources must either cease operations within
three months or submit to a schedule designed to ensure
compliance with controlled requirements eliminating the
impermissible interstate pollution as expeditiously as
practicable. 42 U.S.C. § 7426.
The administrative decision challenged herein
involved EPA’s disposition of petitions under section
A-6
126(b) filed by Pennsylvania, New York and Maine. Sepa-
rate section 126 petitions filed by the three states in 1980
and 1981 alleged violations of NAAQS and impaired
visibility within the borders of each state, substantially
attributable to the cumulative impact of SO, emissions in
seven mid-western states. In the atmosphere, SO, gas is
transformed into tiny particles known as sulfate.! Thus
the above-reference EPA NAAQS for SO, and particulate
matter are both implicated in this instance by the same
pollution sources.
The initial petition, filed by Pennsylvania on Decem-
ber 19, 1980, sought a determination that 38 specific
sources in Ohio and West Virginia prevented attainment
and maintenance of the SO, ambient standards in four
Pennsylvania counties and its southwestern air quality
region. On December 22, 1980 and January 16, 1981, New
York filed nine petitions alleging that 19 specific sources
in the states of Illinois, Indiana, Michigan, Ohio, Tennes-
see and West Virginia were preventing attainment and
maintenance of the TSP standard in New York. EPA con-
solidated the petitions and scheduled a hearing for June
18 and 19, 1981. Two weeks before the hearing, Pennsyl-
vania supplemented its petition and expanded its allega-
tions to include all major emitters of SO, in Ohio, West
Virginia, Illinois, Indiana and Kentucky. At the hearing,
New York submitted a list of 59 sources and later
amended its petition to include all sources of SO, and
1 National Academy of Sciences, “Atmosphere Biosphere
Interactions: Toward a Better Understanding of the Ecological
Consequences of Fossil Fuel Combustion,” 1981, pp. 62-63, 144
(Joint Appendix at p. 0570).
A-7
particulates under SIPs in the six states it originally
named and Kentucky.
After the hearing, Maine filed its petition on October
7, 1981, alleging that SO, derived sulfate particulates
were interfering with its ability to prevent significant
deterioration (PSD) and protect visibility as required by
42 U.S.C. §§ 7470-7491 (Part C requirements incorporated
by reference in 42 U.S.C. § 7410(a)(2)(E)(i)(ID). Maine
alleged that a “regional haze” at Acadia National Park
was the responsibility of all “SO, sources in the seven
mid-western states cited by New York and Pennsylvania”
and confessed an inability to trace the effects to any
specific source or list of sources. The further proceedings
on the three petitions were consolidated.
After extensive proceedings on the three petitions,
including an eleven month comment period which closed
in May of 1982, the three petitioning states sued in
United States District Court seeking an order requiring
EPA to decide the petitions. That court ordered EPA to
render a decision on the petitions within 60 days. State of
New York v. Ruckelshaus, 21 Env’t Rep. Cas. (BNA) 1721
(D.D.C. October 5, 1984). On December 10, 1984, EPA
published a denial of each state’s petition. 49 Fed. Reg.
48,152, 48,157. The states then filed these petitions for
review pursuant to the judicial review section of the
Clean Air Act. 42 U.S.C. § 7607.
II. ANALYSIS
A. EPA’s Duty Under Section 126(b)
EPA has interpreted § 126(b) as requiring that four
elements be met before relief will be provided. Those
A-8
elements are: (1) Section 126(b) provides relief with
respect to only those pollutants for which National Ambi-
ent Air Quality Standards have been set or PSD or visi-
bility measures required; (2) Section 126(b) provides
redress for violations alleged to have occurred in spe-
cified geographic areas; (3) Section 126(b) provides relief
with respect to interstate pollution that results in the
violation of an NAAQS or PSD increment, or interferes
with required SIP measures to protect visibility; and (4)
Where an NAAQS or PSD increment or proscribed visi-
bility impairment occurs, the out-of-state source or
sources must make a significant contribution to the levels
of pollution causing the violation or impairment. 49 Fed.
Reg. 34,856-58.
Petitioners argue that § 126(b) provides a statutory
mechanism to implement an affirmative duty, created by
§ 110(a)(2), to review existing SIPs to determine whether
the SIPs are adequate to prevent impermissible interstate
impacts. Specifically, Petitioners contend that the filing of
their section 126(b) petitions immediately obliged EPA to
take the investigatory steps necessary to determine
whether the SIPs in all named upwind states were in
compliance with § 110(a)(2)(E).
Section 110(a)(2)(E) prescribes substantive standards
against which the interstate impacts of SIPs must be
judged. The Administrator contends that his respon-
sibility to evaluate SIPs for compliance with § 110(a)(2)(E)
is linked to his review of an otherwise required submis-
sion by a state. In other words, the Administrator con-
tends that § 110(a)(2)(E) does not require reevaluation
and revision of existing SIPs, and that a section 126(b)
petition does not trigger such review. We agree.
ee
A-9
Petitioners’ argument centers on the contention that
the substantive inquiry under § 126(b) is the same as that
under § 110(a)(2). See Connecticut v. EPA, 656 F.2d 902, 907
(2d Cir. 1981). If indeed it is the same substantive inquiry,
and we will assume for these purposes it is, then the
language of § 126(b) supports the Administrator’s inter-
pretation of § 110(a)(2)(E).
The language of § 126(b) is quite specific and focuses
on “major sources,” not the validity of a state’s SIP: “Any
State or political subdivision may petition the Adminis-
trator for a finding that any major source emits or would
emit any air pollution in violation of the prohibition of
section 7410(a)(2)(E)(i) of this title.” 42 U.S.C. § 7426(b)
(emphasis added). The elements EPA has derived from
§ 126(b) are reasonable and therefore, this Court will not
disturb EPA’s interpretation. Chevron U.S.A., Inc. v.
NRDC, 467 U.S. 837 (1984).
Congress specified that the Administrator take final
action on a section 126(b) petition very quickly: “Within
60 days after receipt of any petition under this subsection
and after public hearing, the Administrator shall make
such a finding or deny the petition.” 42 U.S.C. § 126(b)
[sic] (emphasis added). Under Petitioners’ theory, once a
section 126(b) petition has been filed, the Administrator
would be required to engage in an entire array of investi-
gative duties. In particular, the Administrator would be
required to undertake a full-scale investigation of the
adequacy of the SIPs of all states named in the petition
for all pollutants involved, to conduct whatever data-
gathering and research is necessary to either prove Peti-
tioners’ claims or affirmatively disprove their allegations,
and to develop whatever new air pollution models are
A-10
necessary to confirm or affirmatively disprove Peti-
tioners’ modeling theories, as well as conducting a public
hearing, analyzing the evidence presented by all inter-
ested parties, proposing a determination, considering all
comments submitted and promulgating a final rule-all
within 60 days of receipt of the petition.? It is reasonable
to conclude that Congress did not intend that the Admin-
istrator be required to perform all these duties in such a
short period of time in the absence of the clearest expres-
sion. See Chevron, 467 U.S. 837.
In addition, the language of § 110(a)(2) resists Peti-
tioners’ interpretation and conversely, lends support to
the Administrator’s. Section 110(a)(2) contains no lan-
guage expressly directing the Administrator to reevaluate
existing SIPs. When Congress has intended to establish a
requirement for direct EPA action it has said so. In 1977,
Congress explicitly ordered the promulgation of EPA reg-
ulations addressing a variety of matters, including new
source performance standards, noncompliance penalties,
stack height credit, and visibility protection require-
ments. 42 U.S.C. §§ 7411(f), 7420(a), 7423(c), 7491(a)(4).
The statute also directs EPA to undertake other actions,
including periodic reassessments of existing ambient
standards and new source performance standards. See 42
U.S.C. §§ 7409(d)(1), 7411 (b)(1)(B).
In one instance Congress specifically directed EPA to
investigate the adequacy of existing SIPs. Section 124 of
the Act, which is entitled “Assurance of adequacy of
2 With the possibility of extension pursuant to section
307(d)(10), 42 U.S.C. § 7607(d)(10).
A-11
State plans,” expressly requires EPA to review the ade-
quacy of existing plans with regard to dependence by
major fuel burning sources on petroleum products and
natural gas. 42 U.S.C. § 7424. That section, unlike
§ 110(a)(2)(E), sets up a procedure for accomplishing the
task. Again, where Congress wanted EPA to review the
adequacy of existing SIPs, it said so. Against that back-
drop, Congress’ silence in § 110(a)(2)(E) is significant.
Not only is § 110(a)(2)(E) itself devoid of any require-
ment for direct action by the EPA, but the legislative
history is similarly barren. [f any Congressional intent
can be divined from this silence, it must be an intent not
to require affirmative action. If Congressional intent can-
not be determined then we must defer to EPA’s construc-
tion of the statute so long as it is a permissible one.
Chevron, 467 U.S. 837.
Petitioners attempt to rely on § 406(d)(2) (which is
not codified) of the 1977 Amendments, 42 U.S.C. § 7401
(note), as the basis for an independent duty to review all
existing SIPs and require revisions where necessary to
conform to § 110(a)(2)(E). They argue that § 406(d)(2)
required that within one year of enactment of the 1977
Amendments, the states had an obligation to revise their
SIPs in accordance with § 110(a)(2)(E). The Administrator
contends, and again we agree, that § 406(d)(2) only sets
the timetable for actions to revise an SIP “by reason of
any amendment made by this Act.” Section 406(d)(2)
itself creates no independent obligation to revise an SIP;
it merely addresses the timing of SIP revisions separately
required by other provisions of the 1977 Amendments.
See generally Sierra Club v EPA, 719 F.2d 436, 469 (D.C.
pleneeeieeteeeneneniti
A-12
Cir. 1983). Section 406(d)(2) provides no support for Peti-
tioners’ argument.
The Administrator’s review of various SIP revisions
submitted by states is an ongoing process, and under the
Administrator’s interpretation the prohibition of
§ 110(a)(2)(E) is one of the requirements that must be met
before he can approve any initial SIP or revision. Because
the Administrator’s construction of § 110(a)(2) is consis-
tent with the plain language of that provision and is a
reasonable one, this Court must accept it. Chemical Mfrs.
Ass’n v. NRDC, 470 U.S. 116 (1985); Chevron, 467 U.S. 837.
B. The Petitions
Petitioners’ position before this Court so thoroughly
relied on their misconception that §§ 110 and 126 of the
Act imposed a duty on the EPA to review SIPs that the
affirmance of the Administrator’s interpretation of those
statutes is largely dispositive of the issues argued before
us; nonetheless, we will address the Agency’s treatment
of each state’s petition. In none of the three instances was
the denial arbitrary or capricious.
Maine
Maine presented evidence that, under certain
weather conditions, sulfate particles transported from
seven mid-western states caused the formation of
“regional haze” that impairs visibility at Acadia National
Park, an area where visibility is specially protected under
§ 169A of the Act. 42 U.S.C. § 7491. EPA denied the
petition because “Maine had not adopted the required
visibility measures contained in the Federal regulations;
moreover, such visibility measures at this time do not
A-13
address regional haze.” 49 Fed. Reg. 48153; see State of
Vermont v. Thomas, No. 87-4119 (2d Cir. June 23, 1988)
(current regulations do not encompass federally enforce-
able measures to alleviate “regional haze”).
Because Maine’s claims in this proceeding concern
only the problem of regional haze, Maine has not pre-
sented any claim which falls within the ambit of § 126(b),
which incorporates the substantive standard of
§ 110(a)(2)(E). In other words, Maine does not allege that
major sources in any other states are interfering with
visibility measures contained in its SIP-its SIP does not
contain regional haze visibility measures. Maine has
failed to make even a threshold showing of entitlement
under § 126(b).* Therefore, EPA properly denied Maine’s
petition.
Pennsylvania
Pennsylvania’s challenge to EPA’s action on its peti-
tion is now directed to three particular areas in south-
western Pennsylvania. The sole question is whether EPA
3 To the extent that Maine is asserting that regional haze
requirements must be in SIPs, this constitutes an untimely
attack on the 1980 regulations. Such an attack is barred by
§ 307(b)(1) of the Act, which requires that judicial review be
brought within 60 days of a final action by EPA. 42 U.S.C.
§ 7607(b)(1); Group Against Smog and Pollution v. EPA, 665 F.2d
1284, 1289 (D.C. Cir. 1981).
To the extent Maine is implicitly arguing that EPA should
be compelled to promulgate regulations dealing with regional
haze, its claim is beyond the jurisdiction of this Court. A
nondiscretionary duty to take action under the Act can only be
enforced in a federal district court suit pursuant to § 304(a)(2).
42 U.S.C. § 7604(a)(2).
A-14
was justified in not concluding that SO, emissions from
major sources in Ohio and West Virginia prevented
attainment or maintenance by Pennsylvania of the
NAAQS for SO, in the subject areas.
The three areas are located in the West Virginia-Ohio
border area (Border area), the Beaver Valley Air Basin
(Beaver Valley area) and the Monongahela Valley Air
Basin (Monongahela Valley area). Pennsylvania submit-
ted no actual monitoring data showing violations of the
SO, standards in the Border area. It relied on a modeling
study (Cramer Study), commissioned by the EPA, which
purported to predict violations in that area. The state
argues that the Cramer Study represents the best model-
ing techniques available.
Because the Border area was not included in the
original area of the Cramer Study, EPA contends that the
results for that area are subject to several problems.
Although violations of the SO, standard were predicted,
the results were only “preliminary” due to questionable
meteorological assumptions and questions regarding the
accuracy of the emissions inventories for the out-of-state
sources used in the model. In fact, the author of the
Cramer Study conceded that additional work would be
needed before firm results could be obtained. EPA thor-
oughly analyzed the Cramer Study and its applicability
to the Border area and concluded that it did not provide a
reasonable basis for determining that SO, violations were
occurring in that area.
It is well established that when a court is reviewing
predictions within an agency’s area of special expertise,
at the frontiers of science, the “court must generally be at
A-15
its most deferential.” Baltimore Gas & Electric Co. v.
NRDC, 462 U.S. 87, 103 (1983). “[A]s long as Congress
delegates power to an agency to regulate on the borders
of the unknown, courts cannot interfere with reasonable
interpretations of equivocal evidence.” Public Citizen
Health Research Group v. Tyson, 796 F.2d 1479, 1505 (D.C.
Cir. 1986). Acceptance or rejection of a particular air
pollution model and the results obtained from it are
interpretations of scientific evidence. This Court cannot
say that the Administrator’s rejection of the Cramer
Study was in any way unreasonable.
The Cramer Study did not predict a violation in the
Beaver Valley area and Pennsylvania submitted no mon-
itoring data showing an actual violation. It was therefore
reasonable for the EPA to deny the section 126(b) petition
with regard to the Beaver Valley Area.
Pennsylvania failed to submit any monitoring data
showing an actual violation in the Monongahela Valley
area. The Cramer Study predicted a violation at one site
in that area, which was one of the areas covered by the
original study. However, EPA estimated that more than
80% of the SO, contributing to the predicted violation
would come from Pennsylvania sources, and that there-
fore the out-of-state sources did not “significantly con-
tribute” to the violation. Once again this Court is being
asked to second-guess the scientific judgments of the
EPA. Once again, we are at our “most deferential.” Bal-
timore Gas, 462 U.S. at 103. And, once again, we cannot
say that the EPA’s assessment of the scientific evidence
was unreasonable. Therefore, Pennsylvania’s petition will
be denied.
A-16
New York
On July 1, 1987, EPA promulgated a new national
ambient air quality standard for particulate matter which
replaces the previous TSP standards. EPA contended in
its brief that New York’s claim had been mooted by this
change and that, therefore, New York’s petition should be
dismissed.
However, at oral argument, EPA raised no objection
to a remand for submission of new data rather than
dismissal with leave to re-petition. Therefore, we remand
New York’s petition (and New York’s petition only) for
submission of new data relevant to the new NAAOS.
II. CONCLUSION
The Administrator’s interpretation of § 110(a)(2)(E)
and § 126(b) is consistent with the statutory language and
is reasonable. The section 126(b) petitions of Maine and
Pennsylvania were properly rejected by the EPA; accor-
dingly, we deny Maine’s and Pennsylvania’s petitions for
review. New York’s petition is remanded for reconsidera-
tion in light of the revised TSP NAAQS. It is so ordered.
GINSBURG, RUTH B., Circuit Judge, concurring: | join
fully in Judge Sentelle’s opinion and write separately
only to spotlight a reality that the language of the the
Clean Air Act condones. As counsel for the EPA acknowl-
edged at oral argument, the EPA has taken no action
against sources of interstate air pollution under either
§ 126(b) or § 110(a)(2)(E) in the decade-plus since those
provisions were enacted. Congress, when it is so minded,
LL LC ee TI eI tine tt thie ctanlenst
A-17
is fully capable of instructing the EPA to address particu-
lar matters promptly. See, e.g., section 124 of the Act, 42
U.S.C. § 7424, added by the 1977 amendments (Adminis-
trator shall review state implementation plans with
regard to dependence of major sources on petroleum
products and natural gas within eighteen months of
August 7, 1977); court’s opinion at 9. Congress did not
supply such direction in this instance; instead, it allowed
and has left unchecked the EPA’s current approach to
interstate air pollution. The judiciary, therefore, is not the
proper place in which to urge alteration of the Agency’s
course.
B-1
Appendix B
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AD-FRL-2724-1]
Interstate Pollution Abatement, Final Determination
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Determination under section 126 of the
Clean Air Act (Interstate Pollution Abatement).
SUMMARY: Section 126 of the Clean Air Act provides a
means by which any State or political subdivision may
petition the EPA for relief from impermissible interstate
air pollution. The States of Pennsylvania, New York, and
Maine filed section 126 petitions in 1980 and 1981, claim-
ing that air pollution from sources in the midwest pre-
vented the petitioning States from attaining and
maintaining national ambient air quality standards
(NAAQS), consumed a portion of their prevention of
significant deterioration (PSD) increments, interfered
with visibility, and caused acid rain.
A public hearing was held on June 18-19, 1981, and
the record held open until March 18, 1982, due to the
extensive nature of the comments submitted, which
included technical information and the petitioner’s rebut-
tal arguments. On September 4, 1984 (49 FR 34851), after
reviewing all of the material submitted, the Administra-
tor proposed to deny the petitions, having determined
that, while pollution does cross State lines into the peti-
tioning States, the petitioning States’ demonstrations did
B-2
not adequately support their claims of injury. Upon
review of the comments received in response to the pro-
posed determination, EPA can find no reason to change
its position. Therefore the Administrator is today issuing
his final determination to deny those petitions.
DATE: The Administrator’s determination is effective
December 10, 1984.
SUPPLEMENTARY INFORMATION:
I. Background
A more extensive discussion of the many statutory,
legal, and technical issues involved in this decision may
be found in the September 4, 1984, proposed determina-
tion (49 FR 34851).
A. Section 126
In 1977, Congress added section 126 to the Clean Air
Act in order to provide States w:th a measure of protec-
tion, under certain circumstances, against pollution from
sources, located outside their borders, over which they
normally have no control. Section 126 provides for the
intervention of the Administrator in instances when
interstate air pollution can be shown to be preventing the
attainment of NAAQS or interfering with those PSD or
visibility measures which the Act requires to be included
as a part of a State implementation plan (SIP).
Under Section 126, a State or political subdivision
may petition the Administrator for a finding that an out-
of-state source is emitting air pollution in violation of the
prohibitions against interstate air pollution contained in
B-3
section 110(a)(2)(E)(i) of the Clean Air Act. If the Admin-
istrator finds that a clear violation of section
110(a)(2)(E)(i) exists, he may prohibit the construction or
continued operation of new or existing sources found to
be in violation, or require that existing sources found to
be in violation comply with a schedule to meet more
stringent emission limits.
B. The Petitions
1. Pennsylvania
On December 19, 1980, Pennsylvania petitioned EPA
under section 126 for a finding that 38 named sources in
Ohio and West Virginia were preventing attainment and
maintenance of the sulfur dioxide (SO,) NAAQS and
consuming a portion of the SO, PSD increment in some
areas of southwestern Pennsylvania. The petition also
requested a finding that particulate matter, including sul-
fate particulates resulting from the transformation of SO,
from those named midwestern sources, was preventing
the attainment and maintenance of the NAAQS for total
suspended particulates (TSP), consuming a portion of the
TSP PSD increment, and causing acid deposition. On June
4, 1981, Pennsylvania amended its petition to include all
major sources of SO, and TSP in Ohio, West Virginia,
Illinois, Indiana, and Kentucky.
2. New York
On December 22, 1980, and January 16, 1981, New
York filed nine petitions under Section 126 asking EPA
for a finding that SO, from 19 named sources in Illinois,
rE
ph Boe
B-4
Indiana, Michigan, Ohio, Tennessee, and West Virginia
was being transported and transformed into sulfate par-
ticulates which were preventing the attainment and
maintenance of TSP NAAQS, consuming a portion of the
TSP PSD increment, interfering with visibility, and caus-
ing acid rain. New York subsequently amended its peti-
tion to include all sources of SO, and particulates subject
to SIPs in the six States and Kentucky.
3. Maine
On October 7, 1981, Maine filed a petition under
Section 126 requesting a finding that sulfates resulting
from SO, emissions in the seven States named by Penn-
sylvania and New York were consuming a portion of the
TSP PSD increment in southern Maine, interfering with
visibility at Acadia National Park, and causing acid depo-
sition. Maine waived its right to a public hearing on the
condition that its petition be consolidated with those of
Pennsylvania and New York.
C. The Public Hearing
After receiving the Pennsylvania and New York peti-
tions, EPA issued a notice of pubic hearing on May 1,
1981 (46 FR 24602), and held a 2-day hearing on June
18-19, 1981, to gather testimony relating to the peti-
tioners’ allegations. Upon request, EPA twice extended
the comment period, finally closing the record on March
18, 1982 (47 FR 1304). During the comment period, EPA
received Maine’s petition and, at Maine’s suggestion,
waived a separate hearing and consolidated the petition
with those of Pennsylvania and New York (46 FR 55551).
B-5
D. The Proposed Determination
The petitions and the comments which were gener-
ated as a result of the public hearing created an extensive
record and raised a number of legal and technical issues.
Those issues elicited considerable comment during the
public comment period on the proposed determination. ;
Those issues and comments are discussed in section II,"
Summary of Response to Comments.
The proposed determination addressed the four basic
allegations made in the petitions: (1) That SO, from seven
midwestern States is transformed in that atmosphere and
transported as sulfates into the petitioning States, result-
ing in acid deposition; (2) that SO, from sources in Ohio
and West Virginia is causing violations of the SO,
NAAQS and consuming a portion of the SO, PSD incre-
ment in southwestern Pennsylvania; (3) that SO, from the
seven midwestern States is being transformed into sulfate
particulates which are transported long distances, caus-
ing violations of the TSP NAAQS in Pennsylvania and
New York and consuming a portion of the TSP PSD
increments in Pennsylvania, New York, and Maine; and
(4) that the sulfate particulates are forming a “regional 1
haze” which is interfering with visibility in New York
and Maine. The following is a summary of the position
taken by EPA on each of these issues in the proposed
determination.
1. Acid Deposition
As stated in the May 1, 1981, notice of public hearing
(46 FR 24603), EPA believes that section 126 does not
provide authority for regulating emissions of pollutants
nr
B-6
for which there are no NAAQS, PSD increments, or visi-
bility measures. Therefore the proposed determination
did not address the issue of acid deposition (49 FR
34856-57). Section 126 is limited to pollutants for which
NAAOS or PSD increments have been established, and to
measures under Part C for visibility. In particular, com-
plaints about the levels of sulfates per se in the ambient
air are insufficient to invoke section 126. Sulfate particu-
lates, however, can constitute a portion of TSP and may
thus be considered in the context of alleged violations of
the standards for that pollutant for the purposes of sec-
tion 126. |
2. SO, Violations-Pennsylvania
Due to the lack of any ambient monitoring data
showing violations, that portion of Pennsylvania’s peti-
tion relating to direct SO, impacts relied on results from a
modeling study performed by a consultant, H.E. Cramer
Company, Inc. As noted in the report of the study, the
study was conducted for the purpose of assisting in the
determination of the attainment/nonattainment status of
selected areas in southwestern Pennsylvania. Although
adequate for the task intended, the analysis suffered tech-
nically when the study area was expanded in an attempt
to gauge the background concentration caused by out-of-
State sources. The study predicted two areas to be in
violation of the SO, NAAQS; however, only one was
located in the region originally intended for study. That
area’s SO, emissions are dominated by a nearby in-State
major source, and Pennsylvania sources make up about
80 percent of the predicted SO, air quality levels. The
other area predicted to be in violation was not in the
B-7
portion of southwestern Pennsylvania that was the sub-
ject of the original investigation. This second area, a grid
located on the Pennsylvania-West Virginia border, was
modeled in a preliminary fashion after the main mod-
eling effort was completed. The meteorological condi-
tions used were for the original study areas and therefore
not necessarily representative of the border grid. In addi-
tion, the emission inventories for areas outside the origi-
nal study area were not scrutinized as closely as were the
inventories for nearby sources, and because of the lack of
monitoring data, the models were not adequately vali-
dated. Due to these limitations, EPA proposed to deny
that portion of Pennsylvania’s petition alleging violations
of the SO, NAAQS. Also, because Pennsylvania did not
submit evidence of the existence of any violations of the
SO, PSD increments, there was no demonstration of inter-
ference with PSD measures and EPA therefore proposed
to deny that portion of the petition alleging such
interference.
3. TSP Violations
All three petitioners claimed that particulate matter,
including sulfate particulate, was being transported into
the petitioning States in amounts which exceeded the TSP
NAAQS and consumed a portion of the PSD increment in
violation of section 110(a)(2)(E)(i). The petitions focused
on the long-range transport of sulfates resulting from the
chemical conversion in the atmosphere of SO, emissions
alleged to originate in the seven midwestern States
named in the petitions. Although, as discussed previ-
ously, interstate sulfate pollution per se cannot be used as
the basis for a section 126 petition, such pollution may be
B-8
used to invoke that section when the sulfates are consid-
ered as particulates which contribute to TSP. Upon
reviewing the data submitted by the petitioners, EPA
found that: (1) When and where the TSP NAAQS were
exceeded, sulfates did not constitute a significant portion
of the TSP levels in the petitioning States, (2) sulfates
from sources in the Midwest had not been demonstrated
to comprise a significant portion of the annual sulfate
levels in the petitioning States, and (3) the magnitude of
the various geographic components of transported sul-
fates had not been adequately defined. Analysis of the
petitioners’ data indicated that the sulfate levels were not
corrected for artifact formation caused by the sampling
technique, and that in many instances the TSP NAAQS
would have been exceeded even if the sulfate component
were eliminated entirely from the samples. Finally, even
if the petitioners’ monitoring and modeling data were
acceptable, those data would indicate that the sulfates
from the midwestern States contribute only 4-6 percent to
exceedances of annual TSP NAAQS in the petitioning
States. Therefore, EPA proposed to deny that portion of
the petitions alleging prevention of attainment of the TSP
NAAQS (49 FR 34864).
The petitioning States also did not claim nor submit
evidence of violations of the TSP PSD increments, nor did
they demonstrate the extent to which sulfates from mid-
western States contribute to increment comsumption in
the petitioning States. Therefore, EPA proposed to deny
that portion of the petitions alleging interference with
PSD measures for particulate matter.
. F
B-9
4. Visibility Interference
Both New York and Maine claimed that sulfates
caused by midwestern sources were transported into
their respective areas creating a regional haze which
interfered with visibility. Visibility protection measures
required by section 169A of the Clean Air Act and con-
tained in EPA regulations are applicable only in manda-
tory Class I Federal areas and pertain to visibility
impairment which can be reasonably traced back to stack
emissions through visual techniques. Since New York has
no Class I areas, EPA proposed to deny that portion of
New York’s petition alleging visibility impairment. Fur-
thermore, Maine had not adopted the required visibility
measures contained in the Federal regulations; moreover,
such visibility measures at this time do not address
regional haze. EPA therefore proposed to deny that por-
tion of Maine’s petition relating to visibility impairment.
I]. Summary of Response to Comments
Eighteen commenters responded to the proposed
determination. Comments were responded to in a com-
ment respense document which has been placed in the
Docket (Docket item IV-D-22). The reader is referred to
that document for detailed responses to comments. The
comments addressed both legal and technical aspects of
the d° ermination. This section provides a summary of
responses to major comments.
A. Legal Issues
1. Which Pollutants Are Addressed by Section 126?
Several commenters urged EPA to make a finding
under section 126 regarding acid deposition. They argued
B-10
that EPA, by denying the petitions, was ignoring the
issue of acid deposition.
EPA is not ignoring the issue. To the contrary, the
Administrator has acknowledged on numerous occasions
the importance of finding a solution to the problems
caused by acid deposition. Although EPA recognizes the
problems, the Agency can act under section 126 only on
those transboundary problems to which the statute is
addressed. Section 126 provides that:
Any State or political subdivision may petition the
Administrator for a finding that any major source emits
or would emit any air pollution in violation of the prohi-
bition of section 110(a)(2)(E)(i).
In turn, section 110(a)(2(E)(i) prohibits:
* ™* * any stationary source withing the State from
emitting any air pollutant in amounts which will: (I)
Prevent attainment or maintenance by any other State of
any such national primary or secondary ambient air quality
standard or (II) interfere with measures required to be
inluded in the applicable implementation plan for any
other State under part C to prevent significant deteriora-
tion of air quality or to protect visibility * * *-
(Emphasis added.)
It is clear from the language of the Clean Air Act that
section 126 can only apply to those pollutants for which
NAAQS exist, i.e., the criteria pollutants TSP, SO,, carbon
monoxide, ozone, oxides of nitrogen, and lead, and to
those PSD or visibility measures required to be part of a
SIP. Moreover, the only PSD measures that can be inter-
fered with in the context of sections 126 and 110 are
required measures such as the ambient air increments
established for TSP and SO, and the visibility protection
measures in Federal visibility regulations (40 CFR
al
B-11
51.300-51.307). The referenced visibility regulations
address only that visibility impairment, occurring in
mandatory Class I Federal areas, which is considered to
be “plume blight” - that is, smoke, dust, colored gas
plumes, or layered haze emitted from stacks which
obscure the sky or horizon and are relatable to a single
source or group of sources (45 FR 80085). Thus the scope
of section 126 does not extend to acid deposition, sulfates
per se, or to the “regional haze” visibility impairment of
which the petitioning States complain.
2. Burden of Proof
The petitioning States contended that EPA should
bear the burden to ensure that SIPs of upwind States do
not violate the interstate pollution prohibition of section
110(a)(2)(E). Once a petitioner comes forward with evi-
dence of impermissible interstate pollution, the States
argued, EPA must research the claim and provide a
detailed statement of the basis and purpose of its deter-
mination. One petitioner noted that a petitioning State
has at most the ability to review and model emission
limitations in SIP’s, and determine if an air quality prob-
lem exists. Thus, it should be EPA’s responsibility to |
conduct such further modeling as is necessary for regula-
tory action. Another petitioner stated that once a petition-
ing State shows that another State may significantly
contribute to impermissible interstate pollution, the bur-
den of disapproving that assertion falls upon the Admin-
istrator and the offending State.
The test applied to the judicial review of final agency
rulemaking decisions such as this does not depend on
ee Pe
EAE SS OLENA RAB NR, 2S ety poh
B-12
burden of proof concepts. The burden of proof is a con-
cept more applicable to the efforts of several parties to
pursuade an independent decision maker than to Agency
rulemaking. Under section 307(d) of the Clean Air Act,
EPA discharges its responsibilities in rulemaking by
explaining, as it has done in both its proposed and final
determination, that the record contains no clear demon-
stration that contributions from sources in the named
States exist in amounts large enough to be considered
significant in the context of a violation of the applicable
standards.
Moreover, under the Administrative Procedures Act,
5 U.S.C. 556(d), even in formal proceedings the burden of
producing facts needed to support the requested action is
generally placed on the proponent of a rule. In this case,
the petitioning States are the proponents since they are
requesting findings under section 126. Simply because
section 307(d) of the Act requires EPA to make its deter-
mination on the merits of a petition does not convert
EPA’s role into that of a proponent.
In the case of section 126 petitions, however, EPA has
not held and will not hold petitions to a formal trial-type
burden of proof. EPA recognizes that it has an obligation
independent of the standard of review for this particular
decision to investigate and develop information on this
area of public policy. EPA has already indicated that it is
working to improve its modeling techniques for !ong-
range transport, and has an extensive ongoing program
B-13
of research and development on acid deposition (see 49
FR 34864). However, where this particular decision is
concerned, any such burden must be evaluated against
the prima facie strength of the concerns raised by peti-
tioners, and against the relative ability of the various
parties to clarify the points in question. EPA, in compil-
ing and reviewing the record, took into account the scien-
tific and technological uncertainties which afflict this area
of decision making. Indeed it accepted, for purpose of
analysis, the most favorable view of the States’ evidence.
This is not a case, moreover, in which shifting the
burden of proof to EPA is appropriate because there is
unequal access to available knowledge. Rather, the anal-
ysis of the interstate pollution problems presented here is
one in which the avenues of accuracy are equally
obscured for all parties. Thus, EPA has a comparative
advantage relative to the States only to the extent that it
may command greater resources for furthering techno-
logical advance over time. On the current facts of the
present situtation, however, EPA has no superior vantage
point.
Were the balance of this particular record, even given
the uncertainties which attend it, more delicately
weighted, the burden of proof issue might appear as
more decisive. In this case, however, the data already
available suggest that the petitioners fall so far short of
demonstrating entitlement to a finding under section 126
that the burden of proof is virtually irrelevant. Petitioners
demand not so much that EPA supplement the record as
that EPA develop a new record, a claim neither justifiable
nor feasible.
B-14
In recognition of the seriousness of the allegations
and the difficulties of proof, EPA has in this instance
imposed upon the States no greater proof burdens than
the minimum required by the statute. Even so, the avail-
able evidence simply fails to establish their claims.
3. What Air Quality Levels Cause Section 126 To Be
Invoked?
Numerous comments were received on the interre-
lated issues of what is meant by the terms “prevent” and
“interfere” as used in section 110, and on the extent to
which out-of-State sources must contribute to such pre-
vention or interference in order to form the basis of a
section 126 petition.
Some commenters agreed with, and some commen-
ters took issue with, EPA’s position that in order for a
PSD measure to be interfered with in the context of
section 110, a PSD increment must be violated. Those
who objected did so in part by noting that the term
“interfere” is not as stringent as the term “prevent,” and
thus the term “interfere” carried the implication that a
smaller effect is required as a basis of a section 126
petition for PSD than for NAAQS. The commenters also
claimed that to require a prerequisite increment violation
would impose a no-win or, as one commenter stated, a
“catch-22” situation on a petitioning State by virtue of the
fact that the SIP would have to be adjusted in the peti-
tioning State to prevent the violation, thus eliminating
the basis for a section 126 petition. Commenters also
complained that EPA’s interpretation meant that out-of-
State sources could consume almost all of the petitioning
B-15
State’s increment without causing a violation and could
thereby prohibit growth in the petitioning State.
EPA’s position is that the provisions of section 110
which refer to SIP requirements prohibiting a source from
emitting pollutants which would prevent attainment or
maintenance of a NAAQS or interfering with PSD mea-
sures must be read consistently, and that minor differ-
ences in the meaning of words, taken out of context, can
be misleading.
Preventing attainment of a standard requires that the
standard has not yet been reached. Likewise, preventing
maintenance requires that the standard was reached, but
not sustained. In the case of NAAQS, the standard is a
numerical value which, when violated, is not being
attained. In the case of a NAAQS violation, it is obvious
that attainment is being prevented. Air quality may range
up to the level of the standard, but unless the standard is
violated, or predicted to be violated, its attainment and
maintenance have not been prevented. EPA received no
adverse comments on this interpretation of the term
“prevent” as used in section 110.
The PSD measures required to be included in a SIP
by the Clean Air Act take the form of a new source
‘permitting system for areas which are attaining NAAQS
or which are unclassifiable. For TSP and SO,, this permit-
ting system prevents major new construction that would
cause a violation of the TSP or SO, PSD increments. The
PSD increments are the allowable ranges of pollutant
increases for particular pollutants. Within a State, EPA
B-16
enforcement of that State’s PSD program is specified by
Federal regulations (40 CFR 52.21) which generally
require violation of an increment before intervening
action can be taken. Section 110(a)(2)(E)(i) cannot be
interpreted as giving EPA broader enforcement power to
go beyond the increments in cases of out-of-State pollu-
tion. To say, as do some commenters, that the term
“interfere” implies that a less intrusive effect is required
to form the basis of a section 126 petition and that a more
rigorous test of partial consumption of increment or ele-
vation of baseline should apply, is in itself inconsistent.
Such an interpretation would mean that Congress
granted EPA authority over out-of-State sources that it
does not possess over in-State sources.
EPA recognizes that an existing violation of a PSD
increment would require adjustment of the SIP to correct
the problem and, that if those corrections involve control
of interstate sources, that a section 126 petition may be
appropriate. EPA also recognizes that a violation of a PSD
increment would prohibit the construction or operation
of any new source or sources which would further con-
tribute to the violation, regardless of whether the impact
of the new source occurred in-State or out-of-State. Thus,
the comment that growth may be inhibited by increment
consumption is valid; such situations may occur and are
just as likely to be caused totally by in-State sources. In
such instances, EPA cannot intervene absent an increment
violation, and the same should be true in the case of
consumption by out-of-State sources.
Some commenters noted that the PSD measures
required to be included in SIP’s also included visibility
protection and requested that EPA not limit the scope of
B-17
the requirements for section 126 action to PSD
increments.
The separation of the discussion of PSD increments
and visibility was a result of the form chosen to address
the claims filed by the petitioners. The Agency agrees
with the commenters that PSD measures include provi-
sions for visibility protection, and it was not the intent of
EPA to imply otherwise. However, in the proposed deter-
mination EPA chose, as did Congress in section 110 and
the States of New York and Maine in their petitions, to
treat visibility separately. The NAAQS and PSD incre-
ments consist of numerical values against which mea-
sured or predicted ambient air quality can be compared.
Visibility has no such reference point. The discussion of
PSD increments in the proposed determination does not
preclude the filing by any State of a section 126 petition
claiming that a visibility protection measure required by
the PSD regulations is being interfered with.
4. On Significant Contribution v. “But for” Test
In its proposed determination EPA found that to be
entitled to relief under section 126, a petitioning State
must show that an out-of-State source makes a “signifi-
cant contribution” to the levels of pollution causing a
NAAQS or PSD increment violation (49 FR
348958-348959). [sic: Should be 34858-34859] Both indus-
try and State commenters addressed EPA’s articulation
and application of this standard. On the one hand, indus-
try commenters complained that EPA should have
applied a stricter test simce the word “prevent” in the
statute connotes something more than significant contri-
bution. Industry commenters argued that EPA should not
B-18
find a section 126 violation unless it is shown that the
petitioning State would attain the NAAQS or PSD
requirements “but for” the emissions from identified out-
of-State sources. One commenter added that this “but
for” test was a necessary but not sufficient condition for a
section 126 finding.
On the other hand, the petitioning States criticized
EPA not for adopting the significant contribution stan-
dard, but rather for applying a stricter standard in its
actual determination. The States complained that when
EPA referred to out-of-State contributions in terms of “a
major” portion, factor, or contribution, or characterized
local sources as “predominantly” causing nonattainment,
EPA imposed a harsher test than the significant contribu-
tion test. Several States also complained of EPA’s efforts,
in ascertaining whether a given level of pollution signifi-
cantly contributes to a violation, to strike a balance
between the extent of the aggregation of out-of-State
sources and the size of the contribution (49 FR 34864).
EPA reviewed in detail the comments relating to this
point, which in most respects reiterate the arguments
which were made and considered prior to the issuance of
EPA’s September 4 proposed ¢@2termination. EPA remains
of the view that the so called “but for” test is both
ambiguous in meaning and inappropriate for application
to section 126. Under one interpretation of this standard,
a State would be required to revise its SIP to make as
much room as possible for interstate pollution before
seeking section 126 relief. Under this interpretation, a
State would only be entitled to relief in the few unusual
cases where the out-of-State pollution was causing a vio-
lation that the petitioning State could not cure by limiting
i
B-19
its own sources, see 47 FR 6626 (1982), even if the in-state
limits required would be drastically stricter than those
applicable to the out-of-State sources. Under another
interpretation, a State would be entitled to relief if it had
an “adequate” air quality program that would attain and
maintain national standards within its borders “but for”
the contributions of the out-of-State source. The problem
here is that the adequacy of the program or the adequacy
of a SIP is precisely the issue in question in section 126
petitions. To assume that some standard of adequacy or
approval is available that does not deal with significant
out-of-State contributions is simply to beg the question.
EPA’s application of the significant contribution test
to section 126 petitions has been upheld by the Sixth
Circuit in the recent case of Jefferson County, Kentucky, v.
EPA, No. 82-3214 (6th Cir. July 10, 1984) at 30-41. Far from
slighting the issue of causation, as industry commenters
charge, the significant contribution standard confronts
this question consistently with statutory purpose and the
complexity of the regulatory task.
The State’s complaint that EPA applied a standard in
the present determination other than the significant con-
tribution test is equally without foundation. The com-
menting States pluck references to “major” factor or
portion out of the context of EPA’s overall assessment of
whether the evidence supports a finding of “significant”
interstate contribution. But it is plain from a reading of
EPA’s proposed determination that EPA has defined and
applied the standard in a manner which most appro-
priately implements the statutory intent.
HE cue hee at
B-20
Contrary to assertions in some of the comments, EPA
has not required that the out-of-State pollution be the
sole or the largest single cause of a NAAQS or PSD
increment violation in order to support an affirmative
finding. Nor has EPA attempted, as some commenters
contended, to limit the scope of section 126 to short-range
effects caused by a few obvious sources near a petitioning
State’s borders. EPA has merely enunciated an interpreta-
tion of the statutory standard which reflects a sense of
proportion in balancing a multiplicity of competing inter-
ests and factors. In its proposed determination, EPA enu-
merated a nonexhaustive list of factors which the
Administrator might take into account in determining
whether a contribution is significant (49 FR 34859). A
particular factual context may require that some of these
factors be given more or less weight, while others (e.g.,
the relative cost of pollution abatement among contribut-
ing sources) may be relevant more to the issue of a
remedy than to whether an out-of-State contribution has
a significant effect on the failure of a petitioning State to
meet a NAAQS or PSD increment. As EPA noted in its
proposed determination (49 FR 34859), in the case of the
instant petitions, a detailed analysis of these factors was
not necessary since on this record the sheer amount of
emissions from out-of-State sources in the named States
even in the aggregate, is not sufficient to make a signifi-
cant contribution to violations of the applicable stan-
dards. Here, therefore, the application of the test is
markedly straightforward.
B-21
EPA, upon examination of the available evidence
determined that, even accepting the petitioners’ data sul-
fates from the named out-of-State sources do not consti-
tute a significant factor in TSP standard exceedances in
the petitioning States.
The data showed first that sulfates from all sources —
in-State and out-of-State - comprise only 10-15 percent of
TSP on an annual basis and 10-50 percent on a 24-hour
basis. Moreover, on those days on which the 24-hour
secondary TSP NAAQS is exceeded, it appears that the
percentage of sulfates averaged only 10-12 percent of the
TSP in the samples (49 FR 34863). Next, the record indi-
cated that the portions of sulfates from out-of-State com-
prised an even smaller fraction of TSP during periods of
exceedances. After noting the considerable scientific and
technological uncertainty surrounding evaluations of
long-range sulfate transport, EPA accepted, for purposes
of analysis, available modeling results proffered by peti-
tioners. These results estimated that Ohio, Illinois, Indi-
ana, Michigan, Kentucky, and Tennessee together
contributed a mean (based upon all of the modeling
analyses) of 36.8 percent of Adirondack ambient sulfate
contributions. Since sulfates comprise only 10-15 percent
of the annual TSP levels which exceed the NAAQS, and
assuming that the six midwestern States contribute |
almost 37 percent of this amount, the aggregate contribu-
tion is approximately 4-6 percent of the TSP levels (49 FR
34864). EPA could not find that this amount, emanating
from a six-State region, constituted a significant contribu-
tion to TSP violations. This conclusion, moreover, was
buttressed by the inherent uncertainties of the modeling
B-22
results, and the absence of more reliable and more spe-
cific data linking the Midwest sources to in-State
locations.
B. Technical Issues
1. Short-Range SO, Modeling
One commenter argued that the modeling analysis
upon which the SO, portion of Pennsylvania’s petition
rested, although flawed, did adequately demonstrate that
out-of-State sources contributed significantly to viola-
tions of the SO, NAAQS in portions of southwestern
Pennsylvania. The commenter further argued that EPA
cannot reject the study results because the study was in
fact conducted for, and funded by, EPA.
Scientific information which suffers from admitted
technical weakiesses is of limited usefulness. Such infor-
mation must be accepted with reservation and with
bounds on the purposes to which it is put. Pennsylvania
relied on the modeling study performed by H.E. Cramer
Company, Inc. as the basis for its allegations of NAAQS
violations in extreme western Pennsylvania. As pointed
out in the September 4, 1984, proposed determination
and earlier in this notice, the study suffered from several
technical deficiencies. No commenter suggested that the
study was not flawed and, regardless of the study spon-
sorship and regardless of the acceptability of the disper-
sion models used, the results of the study cannot be
accepted as an adequate demonstration of violations of
the SO, NAAQS and of the level of out-of-State contribu-
tions thereto for purposes of granting regulatory relief
under Section 126.
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2. Sulfate Contribution to TSP Levels
One commenter noted that EPA had proposed a find-
ing on the out-of-State contribution to the annual TSP
standard only and had not included the secondary 24-
hour standard in the decision. |
EPA agrees that the summation language on this
issue in the determination does not appear to address the
secondary standard (49 FR 34865); however, it is clear
from a reading of the prior discussion on the issue of
total sulfates (49 FR 34863) that EPA did analyze the
available data for both the annual and 24-hour standards.
The lack of a specific conclusion regarding the 24-hour
standard is indicative of the greater uncertainties and
controversial nature of the 24-hour data. To determine a
value for the contribution from the named midwestern
States, it is necessary to integrate two factors: (1) The
percentage of sulfates in TSP, and (2) the percentage of
the midwestern States’ sulfate to total sulfate. For the
results to be useful, the components used must have the
same basis. Of the two modeling studies cited in the
petitions, one, done for the U.S./Canadian Memorandum
of Intent (MOI), expresses results in terms of annual
values and the other, done for the Dunkirk area,
expresses its result in terms of a monthly average. Obvi-
ously, the MOI modeling cannot be used for determining
contributions to the 24-hour standards and, unfor-
tunately, the result of the modeling done for the Dunkirk
area, which consists of only one monthly value, is also of
limited usefulness for determining contributions to either
the annual or the 24-hour standard. Thus, the only calcu-
lation which can be justified is that performed for the
annual standard.
a
B-24
One commenter disputed EPA’s calculation of the
out-of-State coritribution to the annual TSP levels, claim-
ing that the value should be higher, as indicated by
calculated values provided in the comment.
Commenter’s values are calculated by combining
annual values and monthly values and thus cannot be
used justifiably for the demonstration required. In addi-
tion, the monthly value utilized included a contribution
from a State not among the named midwestern States.
III. Final Determination
EPA has reviewed all of the comments submitted in
response to the September 4, 1984, proposed determina-
tion. For reasons discussed above and in the comment
response document (Docket Item IV-D-22), EPA can find
no compelling evidence which would cause the Agency
to change its position on the issues.
Relief under the Clean Air Act must be based on a
finding that pollution originating in one State prevents
another State from attaining or maintaining a NAAQS or
interferes with measures required to be included in the
other State’s SIP for PSD or protection of visibility. The
evidence fails to demonstrate that sources in the named
midwestern States are preventing the attainment or main-
tenance of the SO, or TSP NAAQS or interfering with
PSD or visibility measures required to be included in
petitioning States’ SIP’s. Therefore, the Administrator is
today denying the petitions filed, under section 126 of the
Clean Air Act, by Pennsylvania, New York, and Maine.
Under Section 307(b)(1) judicial review of EPA
actions is bifurcated, with actions of local or regional
B-25
applicability prescribed for the United States Court of
Appeal “for the appropriate circuit” while actions of
“nationwide scope or effect” are limited to review in the
United States Court of Appeals for the District of Colum-
bia based on a finding by the Administrator. Based on the
multi-regional nature of this determination, and the mul-
tiplicity of judicial circuits which might thereby be
argued to be “appropriate” the Administrator finds that
under section 307(b)(1) judicial review of this action
should be limited to the United States Court of Appeals
for the District of Columbia. Therefore, such review is
available only by filing a petition for review in that
circuit within 60 days of today’s publication of this
determination.
List of Subjects in 40 CFR Part 52
Air pollution control, Ozone, Sulfur oxides, Nitrogen
dioxide, Lead, Particulate matter, Carbon monoxide,
Hydrocarbons, Intergovernmental relations.
Dated: December 4, 1984.
William D. Ruckelshaus,
Administrator.
C-1
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 84-1592
September Term, 1987
State of New York, et al., Petitioners
Vv
U.S. Environmental Protection Agency and
William Ruckelshaus, Administrator, Respondents
Monongahela Power Company,
The North American Coal Corporation,
NACCO Mining Company,
Cincinnati Gas & Electric Company, et al.,
Peabody Holding Company, et al., Intervenors
and consolidated case No. 85-1082
PETITIONS FOR REVIEW OF AN ORDER OF THE ENVI-
RONMENTAL PROTECTION AGENCY
Before: RUTH: B. GINSBURG and SENTELLE,
Circuit Judges, and PALMIERI", Senior
District Judge
JUDGMENT
(Filed July 22, 1988)
These causes came on to be heard on the petitions for
review of an order of the Environmental Protection
Agency and were argued by counsel. On consideration
thereof, it is
*Of the United States District Court for the Southern District of
New York, sitting by designation pursuant to 28 U.S.C.
§ 294(d).
C-2
ORDERED and ADJUDGED, by the Court, that the
petition for review in No. 85-1082 is denied and case No.
84-1592 is remanded, in accordance with the Opinion of
the Court filed herein this date.
Per Curiam
FOR THE COURT:
Constance L. Dupre
CONSTANCE L. DUPRE,
CLERK
Date: July 22, 1988
Opinion for the Court filed by Circuit Judge Sentelle.
Concurring opinion filed by Circuit Judge Ruth B.
Ginsburg.
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