Opposition Brief — Maine v. United States Environmental Protection Agency

FICDEDB &

. 22 88

IN THE ee ae

Supreme Court of the United ee

7

OCTOBER TERM, 1988

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.,

and TENNESSEE VALLEY AUTHORITY,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

PEABODY HOLDING COMPANY, INC.

AND PEABODY COAL COMPANY

Davi S. HEMENWAY JAMES R. BIEKE *

PEABODY HOLDING COMPANY, INC. FREDERICK C. SCHAFRICK

801 North Memorial Drive SHEA & GARDNER

St. Louis, Missouri 63102 1800 Massachusetts Ave., N.W.

(314) 342-3400 Washington, D.C. 20036 ;

(202) 828-2000

Attorneys for Peabody Holding Company, Inc., and

Peabody Coal Company

December 22, 1988 * Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

0 ani

INTRODUCTORY STATEMENT REGARDING

QUESTIONS PRESENTED

As explained in this brief, Questions 1 and 2 in the

petition for certiorari are not presented by this case.

(i)

TABLE OF CONTENTS

Page

INTRODUCTORY STATEMENT REGARDING

QUESTIONS PRESENTED .........................-...--....----- i

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Administrative Proceedings ......................----..---------+- 3

Proceedings in the Court of Appeals _.................... 5

INTRODUCTION TO AND SUMMARY OF ARGU-

EEE. Sisipiiinarseenee Lan cclscianaasnanaabdatatenniedmencniameianee 5

ARGUMENT ................. Da AIT NESS Ee ES ON 7

aa dieeeicteeeecaish aeanat aaaenncebaicetarsiennacicas 10

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—_——ees |

iv

TABLE OF AUTHORITIES

Clean Air Act, 42 U.S.C. § 7401 et seq. Page

es BM BRT Oa | Seren nner I 2

pciioms DAG, AE TT. BT aise crstitesstn neoscian ence 2

Section 110(a) (2), 42 U.S.C. § 7410(a) (2) -.......... 2

Section 110(a) (2) (E), 42 U.S.C. § 7410(a) (2)

ECON ai emer ett Re ee passim

Section 126(b), 42 U.S.C. § 7426(b) .~..............-.-...---- passim

Gestion 1004. 68 U.S. 3 7408 ............................ 2,4,8

Section 307(b) (1), 42 U.S.C. § 7607 (b) (1) -............ 8

Federal Register Notices:

49 Fed. Reg. 34851-66 (Sept. 4, 1984) -.....................- passim

49 Fed. Reg. 48152-57 (Dec. 10, 1984) ...................... passim

|

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-684

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,

Vv.

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.,

and TENNESSEE VALLEY AUTHORITY,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

PEABODY HOLDING COMPANY, INC.,

AND PEABODY COAL COMPANY

Respondents Peabody Holding Company, Inc., and Pea-

body Coal Company respectfully urge that the petition

for certiorari be denied.' While these respondents be-

1The stock of Peabody Holding Company, Inc., is owned as

follows: Newmont Mining Corporation (49.97%), Bechtel Invest-

ments, Inc. (15.01%), The Boeing Company (15.01%), Eastern

2

lieve that the Court of Appeals correctly decided this case,

they submit a separate brief to show that Questions

1 and 2 in the petition are not presented by this case.

STATEMENT OF THE CASE

Statutory Scheme

The Clean Air Act of 1970 established a scheme

whereby the U.S. Environmental Protection Agency

(“EPA’’) was directed to establish national ambient air

quality standards (“NAAQS”) for air pollutants to pro-

tect the public health and welfare (§ 109), and the

States were required to develop and submit state imple-

‘mentation plans (“SIPs”) to attain and maintain the

NAAQS within their borders (§ 110).2, EPA was directed

to approve those SIPs if they met specified requirements

($ 110(a)(2)). EPA has adopted NAAQS for various

pollutants, including particulate matter and sulfur dioxide

(“SO.”), and the States have developed SIPs to achieve

those standards. In the 1977 Amendments to the Act,

Congress adopted a new provision (§ 169A) that estab-

lished a goal of remedying impairment of visibility in

“class I Federal areas” (e.g., national parks) and di-

‘rected EPA to adopt regulatory requirements for SIPs to

make “reasonable progress” toward meeting that goal.

Associated Securities Corp. (15.01%), and the Equitable Life

Assurance Society of the United States (5%). All of the stock

of Peabody Coal Company is owned by Peabody Holding Company,

Inc. In addition, these respondents have the following subsidiaries

or affiliates which are not wholly owned: North Antelope Coal

Company, Squaw Creek Coal Company, Yaamba Joint Venture,

Dominion Terminal Associates, Tecumseh Coal Corporation, Yankee-

town Dock Corporation, Rail to Water Transfer Corporation, and

Kayenta Mobile Homes Park. :

2 Sections 109 and 110 of the Act are codified at 42 U.S.C. §§ 7409

and 7410, respectively. The U.S.C. citations for the other sections

of the Act referred to herein may be found in the Table of

Authorities.

——eeeererreerere SS

3

Also in 1977, Congress adopted new provisions dealing

with interstate air pollution. Section 110(a)(2)(E) re-

quires that, as a condition for approval, a SIP must con-

tain “adequate provisions” prohibiting sources in that

State from emitting pollutants that will “prevent attain-

ment or maintenance” of the NAAQS in another State

or will “interfere with measures required te be included”

in another State’s SIP to prevent significant deterioration

of air quality or to protect visibility. Section 126(b)

authorizes any State to petition EPA for a finding that

any major source in another State emits or would emit

pollutants that would violate the prohibition of § 110

(a) (2) (EB).

Administrative Proceedings

In 1980 and 1981, the States of Pennsylvania, New

York, and Maine filed petitions with EPA under § 126(b).

Those petitions presented EPA with three distinct claims.

First, both Pennsylvania and New York contended that

emissions of SO. from all major sources in seven Mid-

western States were, after conversion in the atmosphere

of the SO, to sulfate (a particulate) and long-range

transport of such sulfates by air currents, preventing

attainment and maintenance of the NAAQS for particu-

late matter in Pennsylvania and New York. In reviewing

this claim, EPA considered at length the evidence on

sulfate and total suspended particulate matter (“TSP”)

levels in Pennsylvania and New York and the extent to

which those levels could be attributed to SO. emissions

in the Midwestern States. 49 Fed. Reg. 34851, 34862-65

(Sept. 4, 1984); 49 Fed. Reg. 48152, 48153, 48156-57

(Dec. 10, 1984) (App. B to Pet. at B-7 to -8, B-21 to

-24). It found that “out-of-State sources from the named

|Midwestern] States do not contribute significantly to

violations of the [particulate matter] NAAQS” in Penn-

sylvania and New York. 49 Fed. Reg. 34865; see also 49

Fed. Reg. 48152, 48156, 48157 (App. B to Pet. at B-8,

B-21, B-24).

4

Second, Pennsylvania claimed that SO, emissions from

certain specified sources in southeastern Ohio and north-

western West Virginia were preventing attainment and

maintenance of the NAAQS for SO, in areas of south-

western Pennsylvania. EPA rejected this claim on the

ground that Pennsylvania had presented no actual mon-

itoring data to show any violation of the NAAQS for SO,

in southwestern Pennsylvania and that the modeling

analysis submitted was inadequate to demonstrate such

a violation or significant out-of-State contributions to

a predicted violation.* 49 Fed. Reg. 34859-61; 49 Fed.

Reg. 48153, 48156 (App. B to Pet. at B-6 to -7, B-22).

Third, Maine contended that SO. emissions from the

Midwest were, through conversion to sulfate and long-

range transport, causing regional haze that interfered

with visibility at Acadia National Park in Maine. EPA

rejected this claim on the legal ground that Maine had

not adopted any of the visibility protection measures ac-

tually required by EPA’s regulations to be included in

SIPs, and that, moreover, EPA’s regulations implement-

ing § 169A did not require SIPs to include any measures

to address regional haze. 49 Fed. Reg. 34865-66; 49 Fed.

Reg. 48153, 48154 (App. B to Pet. at B-9, B-11). Since

Maine thus did not and could not claim interference

with measures “required to be included” in its SIP to

protect visibility (as provided-by § 110(a) (2) (E)), EPA

denied Maine’s petition for failure to state a claim under

$$ 110(a) (2) (E) and 126(b).

In summary, EPA concluded that its review of the best

available data failed to show that pollution sources in

the named Midwestern States were preventing attain-

ment or maintenance of the NAAQS for particulate

matter or SO. in the petitioning States or interfering

3 Dispersion modeling employs mathematical formulas to estimate

airborne concentrations of pollutants resulting from a source’s

emissions.

5

with visibility protection measures required to be included

in those States’ SIPs. 49 Fed. Reg. 34866; 49 Fed. Reg.

48157 (App. B to Pet. at B-24).

Proceedings in the Court of Appeals

In the Court of Appeals, Pennsylvania abandoned its

broad claim of interstate impacts on the NAAQS for

particulate matter and presented only its limited claim

that SO, emissions from certain sources in Ohio and West

Virginia were preventing attainment and maintenance

of the NAAQS for SO, in areas of southwestern Pennsyl-

vania. App. A to Pet. A-13 to -14. The court rejected

that claim, upholding EPA’s technical determination that

the evidence was insufficient to support it. Id. at A-14

to -15. New York did initially present the broad claim

of interstate impacts from the seven Midwestern States

on the NAAQS for particulate matter in New York; but

EPA, during the pendency of the case, revised the par-

ticulate matter NAAQS to change the indicator pollutant

from TSP to a different indicator. As a result, New

York sought a remand to allow it to submit new data

relevant to the revised NAAQS, and the court remanded

New York’s petition for that purpose. Jd. at A-16. Fi-

nally, Maine pressed its visibility claim, but the court

rejected that claim on the legal ground that, since Maine’s

SIP did not contain regional haze measures, Maine

“failed to make even a threshold showing of entitlement

under § 126(b).” Id. at A-13.

INTRODUCTION TO AND SUMMARY OF ARGUMENT

Petitioners claim that this case “involves the single

largest and best documented case of transboundary air

pollution occurring within the United States”—i.e., the

alleged impact of SO. emissions from the Midwestern

States on ‘‘very high ambient sulfate levels, regional haze

and acid rain” in the Northeastern States. Pet. at 8. In

this context, they assert that this case presents the broad

eer

6

legal issue of EPA’s duty, either in general or in review-

ing a §$ 126(b) petition, to review the SIPs of the Mid-

western States to determine their adequacy under § 110

(a) (2) (E) to prevent such impacts in the Northeastern

States. They contend that EPA’s denial of their peti-

tions “effectively precludes any abatement” of these in-

terstate pollution problems. Id.

In fact, however, the petition before this Court does

not involve the broad impacts alleged by petitioners and

does not present the broad legal issue regarding EPA’s

duty to review the Midwestern SIPs to determine their

compliance with § 110(a)(2){E). The only claims that

remain before this Court are Pennsylvania’s limited

claim of interstate impacts on the NAAQS for SO, in

southwestern Pennsylvania and Maine’s claim of inter-

state impacts on visibility in Maine. Both these claims

were rejected by EPA and the Court of Appeals on inde-

pendent grounds that are wholly sufficient to support

their determinations and that would obviate any possible

need for EPA to review the overall adequacy of the Mid-

western SIPs.

Furthermore and in any event, in response to the

§ 126(b) petitions, EPA undertook a careful scrutiny of

the petitioning States’ arguments and evidence and de-

nied those petitions on the merits. That inquiry is essen-

tially the same substantive inquiry as would be involved

in reviewing the adequacy of the Midwestern SIPs under

$110(a)(2)(E) with respect to the impacts in the pe-

titioning States. Hence, even assuming arguendo that

EPA had a duty to review the Midwestern SIPs under

$ 110(a) (2) (E), its consideration and denial of the

§ 126(b) petitions constituted, in effect, the same sub-

stantive review which the petitioning States would have

obtained under § 110(a) (2) (E).

7

ARGUMENT

As noted above, Pennsylvania in the Court of Ap-

peals abandoned its broad claim of interstate impacts

from the seven named Midwestern States upon the

NAAQS for particulate matter, and New York’s similar

claim was remanded to allow the submission of new

data relevant to the revised NAAQS for particulate

matter. New York does not seek review in this Court,

and no party has sought review of the Court of Appeals’

remand of New York’s petition. Thus, the only claims

before this Court are Pennsylvania’s more limited claim

relating to the NAAQS for SO. and Maine’s visibility

claim, and those claims do not raise the broad issues and

impacts alleged by petitioners.*

Pennsylvania’s claim in the Court of Appeals related

only to the impact of SO. emissions from certain sources

in Ohio and West Virginia on the NAAQS for SO, in

areas of southwestern Pennsylvania. EPA had no need

to review the overall adequacy of the Midwestern SIPs

to deal with this claim. It denied that claim on the tech-

nical ground that there were no monitoring data showing

a violation of the NAAQS for SO, in southwestern Penn-

sylvania and that the modeling submitted was inade-

quate. The Court of Appeals upheld that independent

technical determination, and review is not sought of that

aspect of the court’s decision. Thus, disposition of Penn-

sylvania’s claim does not involve any need to resolve the

question of EPA’s duty to review the Midwestern SIPs

under § 110(a) (2) (E).

4This case does not involve “acid rain” (more correctly known

as acid deposition) at all. As EPA found, there are no NAAQS,

‘prevention of significant deterioration” requirements, or visi-

bility protection measures dealing specifically with acid deposition,

and hence acid deposition per se is not encompassed within the

prohibition of §110(a)(2)(E). See 49 Fed. Reg. 48153 (App.

B to Pet. at B-5 to -6).

8

Maine’s claim likewise does not present that broad

issue. Maine argued that regional haze resulting from

Midwestern SO. emissions was impairing visibility in

Acadia National Park. EPA rejected that claim on the

ground that regional haze measures were not included in

Maine’s SIP and were not required by EPA’s visibility

protection regulations to be included in SIPs, and that

hence Maine’s petition failed to state a claim for relief

under §§110(a)(2)(E) and 126(b). The Court of

Appeals affirmed that legal determination. If that

threshold ruling was correct, there was no reason for

EPA to go any further in reviewing the adequacy of the

Midwestern SIPs under § 110(a)(2)(E), and there is

thus no need for this Court to consider EPA’s duty to

make such a review.°®

In any event, even if the petitioners’ claims did raise

the broad issue of the impact of SO. emissions from the

Midwestern States on sulfate or particulate matter levels

in the Northeast, this case is not appropriate for review

by this Court. To begin with, the Court of Appeals

5 Petitioners do challenge the correctness of EPA’s and the Court

of Appeals’ determination on that threshold legal issue. While

they do not deny that EPA’s visibility protection regulations under

$ 169A of the Act do not require regional haze measures to be in-

cluded in SIPs, they claim that that fact does not negate their

entitlement to relief under §126(b). Pet. at 12-13. Apparently,

petitioners’ argument is that the Act itself, in § 169A, requires

SIPs to include regional haze measures. Jd. As the Court of

Appeals held, however, this argument constitutes an untimely

attack on EPA’s visibility protection regulations, which were

adopted in 1980. App. A to Pet. at A-13 n.3. Section 307(b)(1) of

the Act requires that judicial review of EPA regulations be sought

within 60 days of their publication, and Maine never challenged

EPA’s 1989 regulations for failure to include regional haze measures.

Petitioners do not challenge the Court of Appeals’ determination

that their challenge to EPA’s regulations is untimely. Moreover, to

the extent that Maine is claiming that EPA has a nondiscretionary

duty under §169A to adopt regional haze regulations, that claim

is the subject of separate litigation currently pending in the First

Circuit. Pet. at 13 n.8.

9

properly upheld EPA’s interpretation of the Act to the

effect that § 110(a)(2)(E) did not require a wholesale

review and reevaluation of all existing SIPs to determine

their adequacy per se to prohibit impermissible inter-

state impacts, and that petitions under § 126(b) likewise

did not trigger a requirement for such extensive, full-

scale review of existing SIPs. App. A to Pet. at A-8

to -12.

Moreover, even if it were assumed arguendo that EPA

had a duty under § 110(a)(2)(E) to review the ade-

quacy of the Midwestern SIPs to prevent impermissible

impacts in the petitioning States, the petitioning States

in effect have had such a review in response to their

petitions. EPA gave close scrutiny to the evidence and

arguments submitted by the petitioning States regarding

the impacts potentially attributable to Midwestern

sources, and it found that the best available evidence

failed to show that sources in the named Midwestern

States were having impermissible impacts under § 110

(a) (2) (E) in the petitioning States. 49 Fed. Reg. 34866;

49 Fed. Reg. 48157 (App. B to Pet. at B-24).° As peti-

tioners themselves admit (Pet. at 13) and as the Court

of Appeals assumed (App. A to Pet. at A-9), the in-

quiry for decision under § 126(b) is the same substan-

tive inquiry as that under § 110(a) (2) (E).’ Thus, the

6 For instance, in reviewing the claims of Pennsylvania and New

York regarding the alleged interstate impacts on the NAAQS for

particulate matter, EPA found that: (a) total sulfates from all

sources did not constitute a significant portion of TSP levels in

those States on occasions when the NAAQS were violated; (b) sul-

fates transported from Midwestern sources were not shown to con-

stitute a significant portion of annual sulfate levels in the peti-

tioning States; (c) the magnitude of various geographic com-

ponents of transported sulfates had not been adequately defined;

and (d) therefore sources in the named Midwestern States could

not be said to contribute significantly to violations of the NAAQS

in the petitioning States. 49 Fed. Reg. 34865; 49 Fed. Reg. 48153,

48157 (App. B to Pet. at B-8, B-24).

7 Petitioners assert that the decision below was inconsistent with

the decision of another court of appeals that the substantive in-

10

careful inquiry and review that EPA undertook in re-

sponse to the § 126(b) petitions was no different in sub-

stance from that which would be involved in reviewing

the adequacy of the Midwestern SIPs under § 110(a)

(2)(E) insofar as the impact on the petitioning States

is concerned. Accordingly, EPA’s denial of the § 126(b)

petitions on the ground that emissions from the Mid-

western States were not shown to be having imper-

missible impacts under § 110(a) (2) (E) in the petition-

ing States was a rejection of the only conceivable viola-

tion of §110(a)(2)(E) about which the petitioning

States had standing to complain. In these circumstances,

EPA’s failure to state explicitly that the Midwestern

SIPs had adequate provisions to prevent violations of

§ 110(a) (2) (E) in the petitioning States was, at worst,

harmless procedural error and does not warrant review

by this Court.

CONCLUSION

For the foregoing reasons, respondents Peabody Hold-

ing Company, Inc., and Peabody Coal Company urge this

Court to deny the petition for a writ of certiorari.

Respectfully submitted,

Davip S. HEMENWAY JAMES R. BIEKE *

PEABODY HOLDING COMPANY, INC. FREDERICK C. SCHAFRICK

301 North Memorial Drive SHEA & GARDNER

St. Louis, Missouri 63102 1800 Massachusetts Ave., N.W.

(314) 342-3400 Washington, D.C. 20036

(202) 828-2000

Attorneys for Peabody Holding Company, Inc., and

Peabody Coal Company

December 22, 1988 * Counsel of Record

quiry under §§126(b) and 110(a)(2)(E) is the same. Pet. at

13-14. This assertion makes no sense, since the court below did

assume, for purposes of deciding the case, that the substantive

inquiry is the same under both provisions. App. A to Pet. at A-9.