Opposition Brief — Maine v. United States Environmental Protection Agency

DEC 22 1988

F. SPANIOL, JR,

CLERK

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,

OCTOBER TERM, 1988

V.

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.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

CINCINNATI GAS & ELECTRIC COMPANY, ET AL.,

MONONGAHELA POWER COMPANY AND

TENNESSEE VALLEY AUTHORITY

LAWRENCE A. DEMASE EDWARD BERLIN *

J. DANIEL HULL ROBERT S. TAYLOR

RosE, SCHMIDT, HASLEY SWIDLER & BERLIN, Chartered

& DISALLE 3000 K Street, N.W.

1250 24th Street, N.W. Suite 300

Suite 630 Washington, D.C. 20007

Washington, D.C. 20037 (202) 944-4300

(202) 293-8600 (Counsel for Cincinnati Gas &

(Counsel for Monongahela Electric Company, et al.)

Power Company)

JAMES E. Fox

Deputy General Counsel

TENNESSEE VALLEY AUTHORITY

400 West Summit Hill Drive

Knoxville, TN 37902

(615) 632-4151 * Counsel of Record

(Counsel for Tennessee Valley

Authority) December 22, 1988

WILSON - EPES PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

47

A |

TABLE OF CONTENTS

Page

vy ty ht aly yi oR of |. | Renee 2

eG, EE CEE 3

2. The Administrative Proceedings ......................... 4

Nice annie anaiedinsineatetniiadanabbanisniae 5

SUMMARY OF ARGUMENT ...QW0000000.2200.. eee eeeeeeeeeeeeee 8

REASONS FOR DENYING THE WRIT ..............0.0...... 8

I. Section 110(a)(2)(E) Does Not Mandate a

aT 8

II. Section 126(b) Does Not Mandate a Review

aia ete peccarhheechabedesencedeliegadiphnnidnickegiostaipieiin 10

III. Allegations that Interstate Air Pollution Causes

Regional Haze Are Not Cognizable in a § 126(b)

I III cic cs i ceccccdvemciedtieketbennsnnnades' 12

IV. The Thorough and Lengthy Review of Peti-

tioners’ Claims in This Case Was the Equivalent

of the Comprehensive Review of Midwestern

SIPs Sought by Petitioners .............00000000000202222o.. 13

V. There Is No Conflict Among the Circuits ........... 14

IT ba csisssiiaspsasadsiiahenstAcsintninbinenipineblenlbpaaiiccilgsss 16

ii

TABLE OF AUTHORITIES

Cases Page

Baltimore Gas & Electric Co. et al. v. Natural Re-

sources Defense Council, Inc., 462 U.S. 87, 103

COD aia ic. sn cancksncmsasccooiestecscdaces nate 14

Chemical Manufacturers, Association et al. v. Na-

tural Resources Defense Council, Inc., et al., 470

U.S. 246 ¢2GGB) nncccceee 10

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., et al., 467 U.S. 837 (1984).. 10

Connecticut v. EPA, 656 F.2d 902 (2nd Cir. 1981).. 14, 15

New York v. EPA, 710 F.2d 1200 (6th Cir. 1983).. 14, 15

New York v. EPA, 716 F.2d 440 (7th Cir. 1983).... 14, 15

Pennsylvania v. Costle, 672 F.2d 902 (3rd Cir.

WIE oa csiccssccsiicnnncnsnsevenccessucaeeee eee 13

Vermont v. Thomas, 850 F.2d 99 (2d Cir. 1988).. 12

Statutes

The Administrative Procedure Act

S UBC. & GEC) CI rindi cicetcctetteeiecrccece 12

The Clean Air Act, as amended, 42 U.S.C. § 7401

et seq. (1983)

§ 110(a), 42 U.S.C. § F40O).... 3, 7, 10, 13

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

Be A gis Fateh . SRP a RRs 7

S 126 (a), 42 USC. S Fae. 9

§ 126(b), 42 U.S.C. § T426(D).............-..-....-2000.2. passim

§ 126(c), 42 U.S.C. & TEBE) anon cscc cnc ccneccncesesees 4,10

§ 307 (b) (1), 42 U.S.C. § 7607 (b) (1)-.............. 12

The Clean Air Act Amendments of 1977, Pub. L.

95-95, 91 Stat. 685

S 206 (ar) CE), BE Ce, Ge asinine 3

© OBR, Oh Bs Faison 4

& 406 (G) EB) , BE Be Ferhat atceneges 6, 7

Regulations and Regulatory Materials

45 Fed. Reg. 74478 (Nov. 10, 1980) ..............-222222...--.. 13

49 Fed. Reg. 34866 (Sept. 4, 1984) ...............2...22-..---. 13

ili

TABLE OF AUTHORITIES—Continued

Legislative Materials Page

H.R. 6161 § 309(b) (95th Cong., Ist Sess., April 6,

1977), reprinted in 4 Senate Committee on En-

vironment and Public Works, 95th Cong., 2nd

Sess., A Legislative History of the Clean Air

Ae Amenaments of 1077 ..................................... 9

H.R. Rep. No. 294, 95th Cong., 1st Sess., reprinted

in 1977 U.S. Code Cong. & Admin. News 1077.... 9

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,

Va

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.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

CINCINNATI GAS & ELECTRIC COMPANY, ET AL.,

MONONGAHELA POWER COMPANY AND

TENNESSEE VALLEY AUTHORITY !

1The statement required by Rule 28.1 is appended as Attach-

ment 1.

2

STATEMENT OF THE CASE

The Clean Air Act (“Act’’), 42 U.S.C. §§ 7401 et seq.,

in recognition of the fact that emissions cannot be con-

strained by state boundaries, provides a procedure where-

by a state or political subdivision may seek a finding

from the Environmental Protection Agency (“EPA” or

“Agency”) that any major source located in another state

emits, or would emit, any air pollutant that will prevent

the attainment or maintenance by the receptor state of

any national ambient air quality standard (“NAAQS”),

or that will interfere with measures required to be in-

cluded in a federally mandated “State Implementation

Plan” (“SIP”) to prevent the significant deterioration of

air quality or to protect visibility. This procedure is re-

ferred to as a “§ 126 petition.”

This case results from EPA’s rejection of claims made

in § 126 petitions by three receptor states—Pennsylvania,

New York, and Maine—that air pollution from Midwest-

ern states was preventing the attainment or maintenance

of certain NAAQSs and interfering with visibility. The

rejection of these claims was upheld by a unanimous

panel of the United States Court of Appeals for the Dis-

trict of Columbia Circuit. The Petitioners here challenge

the rejection of one of these claims.

In addition, Petitioners argue that the passage of a

new interstate air pollution condition for the approval of

SIPs “implicitly” required EPA to review previously ap-

proved SIPs and, further, that such review is required

“for a specific case” of interstate air pollution raised by

a $126 petition. Petition for Writ of Certiorari [Pet.

Cert.] at i. These contentions too were rejected by a

unanimous court below.

The contentions raised by Petitioners are insubstantial

and, in any event, do not merit review by this Court.

The decision below does not conflict with the decision of

any other court on the same matter, and does not decide

an important issue of federal law that should be settled

3

by this Court. The petition for a writ of certiorari ac-

cordingly should be denied.

1. The Statutory Scheme

The Clean Air Act represents a carefully crafted part-

nership: EPA is to promulgate “national ambient air

quality standards” designed to protect the public health

(primary standards) and welfare (secondary standards),

and the States are to develop, subject to EPA review,

State Implementation Plans designed to achieve the fed-

eral standards. Under Section 110(a), States are re-

quired to adopt and to submit to the Administrator of

EPA (the “Administrator”) SIPs within nine months

after the promulgation of a NAAQS, and the Administra-

tor “shall approve such plan... if he determines” that

it meets certain enumerated conditions. 42 U.S.C.

§ 7410(a)(2). In 1977, Congress adopted numerous

amendments to the Clean Air Act,” including a provision

significantly altering the condition relating to interstate

air pollution for the Administrator’s approval of a SIP.

As a result of the 1977 Amendments, the Administrator

shall approve such plan . . . if he determines .. .

that...

(E) it contains adequate provisions (i) pro-

hibiting any stationary source within the State

from emitting any air pollutant in amounts

which will (I) prevent attainment or mainten-

ance by any other State of any such national

primary or secondary ambient air quality stand-

ard, or (II) interfere with measures required

to be included in the applicable implementation

plan for any other State .. . to protect visibil-

_ are

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

2Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 Stat. 685

(“1977 Amendments” ).

8 See 1977 Amendments, § 108(a) (4), 91 Stat. 693.

————

4

The 1977 Amendments also added a new section to the

Clean Air Act, providing that any state or political sub-

division may “petition the Administrator for a finding

that any major source emits or would emit any air pol-

lutant in violation of the prohibition of Section 110

(a) (2) (E)(i).” Section 126(b), 42 U.S.C. 7426(b)

(emphasis added).* The Administrator, “[w]Jithin 60

days after receipt of any petition . . . and after public

hearing . . . shall make such a finding or deny the peti-

tion.” Jd. If the Administrator finds a § 126(b) viola-

tion, a new source, if it is the violator, may not be con-

structed or operated, and if the offender is an existing

source, it must either cease operation within three

months or comply with such emission limitations and

schedule designed to ensure compliance with the require-

ments contained in §$ 110(a)(2)(E) as expeditiously as

practicable, but in no case later than three years after

the finding. Section 126(c), 42 U.S.C. § 7426(c).

2. The Administrative Proceedings

The initial petition, filed by Pennsylvania on December

19, 1980, named 38 specific sources in Ohio and West

Virginia as responsible for § 126 violations. Thereafter,

Pennsylvania by letter supplement, New York by a series

of petitions, and Maine in its petition, broadened the

challenge to include all major—but unnamed—emitters

of SO, and total suspended particulates (“TSP”) in a

broad group of Midwestern states.° The petitions® were

4 See 1977 Amendments, § 123, 91 Stat. 724.

5 See Final Determination under section 126 of the Clean Air

Act (Interstate Pollution Abatement), (“EPA Decision”) reprinted

in Appendix B, at B-3 to B-4. Five states were included in the

Pennsylvania challenge and seven in the challenges filed by New

York and Maine. New York at one point named 59 specific sources

but then amended its petition to include all sources of SO, and

TSP in the designated states. Maine at no time named specific

sources.

6 The States that petitioned EPA under § 126 are referred to as

the “EPA Petitioners.”

5

consolidated and subjected to extensive analysis by EPA

which extended its review on several occasions to permit

the receipt and analysis of additional comments from the

Petitioners. The Agency also had the benefit of a broad

spectrum of advice from other interested persons as well

as analyses completed by its own experts. The record

ultimately included more than 70 studies dealing predomi-

nantly with such highly technical issues as the reliability

vf long-range transport computer models, the uses and

limitations of air trajectory analyses, the technical ade-

quacy of air monitoring equipment, and the chemistry of

the transformation in air of sulfur dioxide (a gas) into

sulfate (a particulate). Indeed, in their brief below,

Petitioners themselves recognized that:

the existing record reasonably reflects the universe

of relevant fact and informed opinion with respect

to the several claims. The record is unquestionably

the product of a lengthy record-building process fully

open to all who wished to participate.

Pet. Br. at 49-50.

Based on this comprehensive record, EPA found:

The evidence fails to demonstrate that sources in the

named Midwestern States are preventing the attain-

ment or maintenance of SO, or TSP NAAQS or in-

terfering with PSD or visibility measures required

to be included in petitioning States’ SIPs.

EPA Decision, App. B-24.

3. The Decision Below

In the Court below, the Petitioners’’ factual dispute

with the Agency was remarkably narrow: all that re-

mained in contention was Pennsylvania’s claim that SO,

from unnamed sources in Ohio and West Virginia were

™The Petitioners below consisted of the EPA Petitioners, plus

the States of Connecticut, Vermont, New Hampshire, and New

Jersey, the Commonwealth of Massachusetts, and Richard L.

Ottinger.

6

causing violations of the NAAQs for SO. in three dis-

erete areas and Maine’s claim that unnamed sources in

the Midwest were responsible for isolated occurrences of

regional haze in Acadia National Park. Opinion at A-12

to A-16 (as reprinted in Appendix A to Pet. Cert.)

(“App. A-12 to A-16”). In a unanimous opinion written

by Judge Sentelle, in which Judge Ruth Ginsburg con-

curred fully, the Court rejected Petitioners’ challenge to

the Administrator’s resolution of these narrow factual

issues. As to Maine, since its complaint rested exclu-

sively on a claim of regional haze, and as its SIP neither

contained nor was required to contain any regional haze

visibility measures, the Court agreed that “Maine has

failed to make even a threshold showing of entitlement

under $ 126(b).” App. A-13 (footnote omitted). As to

Pennsylvania, since acceptance of its claim required ac-

ceptance of predictive models that the Agency found to

be unreliable, and as “this Court is being asked to sec-

ond-guess the scientific judgments of the EPA... [a]nd

once again, we cannot say that the EPA’s assessment of

the scientific evidence was unreasonable,” Pennsylvania’s

petition was denied. App. A-15.°

The Court below also unanimously rejected the Peti-

tioners’ legal contentions (1) that § 110(a) (2) (E) itself,

or in conjunction with $ 406(d) (2) of the 1977 Amend-

ments,” required all states to revise their SIPs and to

submit those revised SIPs to EPA for approval to as-

sure compliance with the substantive conditions contained

in that provision, and (2) that the filing of the § 126(b)

8’ The Court upheld EPA’s conclusion that air pollution models

provided no reasonable basis for determining that violations of

the national air quality standard for SO, were occurring in two of

the three areas. App. A-14. The Court also upheld EPA’s conclu-

sion that the prediction by the model of a violation of that standard

at one site in the third area was due overwhelmingly to in-state

sources of SO., and that the out-of-state sources did not “signifi-

cantly contribute” to the perdicted violation. Jd. at A-15.

® This section of the 1977 Amendments is not codified.

7

petitions immediately obligated EPA to take the inves-

tigatory steps necesary to determine whether the SIPs in

all named upwind states were in compliance with § 110

(a) (2) (E). App. A-8.

The Court pointed out that §110(a) (2) contains no

language directing the Administrator to reevaluate exist-

ing SIPs, even though “[w]hen Congress has intended to

establish a requirement for direct EPA action it has

said so.” '° App. A-10. The Court accepted Petitioners’

contention that the substantive inquiry under §§ 110(a)

(2) (E) and 126 are the same but observed that this

“supports the Administrator’s interpretation of § 110(a)

(2) (E),” namely that the reevaluation and revision of

existing SIPs was not required. App. A-8 to A-9. It

noted that “{t]he language of $ 126(b) is quite specific

and focuses on ‘major sources,’ not the validity of a

state’s SIP.” Thus, in a §$ 126(b) proceeding, the sub-

stantive standards contained in § 110(a)(2)‘(E) are to

be applied to the “major sources” alleged in the petition

to cause violations of those standards, and the § 126(b)

proceeding does not require EPA to reevaluate the com-

pliance of the entire SIP itself with the substantive re-

quirements of § 110(a) (2) (E).1! App. A-9.

This Petition for a writ of certiorari followed.

10 The Court noted that, by contrast, § 124 of the Act “expressly

requires EPA to review the adequacy of existing plans with regard

to dependence by major fuel burning sources on petroleum products

and natural gas.” App. A-11 (emphasis in original). Section 124

was added by the 1977 Amendments, 91 Stat. 722, the same legis-

lation which included the version of § 110(a)(2)(E) on which

Petitioners rely.

The Court’s rejection of Petitioners’ construction of § 110(a) (2)

also was supported by its finding that the legislative history is

“barren” of any suggestion of a requirement for direct action by

EPA. App. A-11. As for § 406(d)(2) of the 1977 Amendments,

that provision “merely addresses the timing of SIP revisions sep-

arately required by other provisions of the 1977 Amendments.” Jd.

11 The Court below also noted that the statutory requirement for

EPA to take final action on a § 126 petition within 60 days is in-

consistent with Petitioners’ construction of that provision.

8

SUMMARY OF ARGUMENT

Petitioners seek a writ of certiorari to have this Court

pass on three issues: (1) whether § 110(a) (2) (E) “im-

plicitly” directs EPA to review previously approved SIPs

under that provision; (2) whether the filing of a petition

under § 126(b) obligates EPA immediately to launch a

review of the consistency of the SIPs of all named up-

wind states with §110(a)(2)(E); and (3) whether

§$ 126(b) affords relief for regional haze allegedly caused

by interstate air pollution despite the absence of any

regulation governing regional haze. Each of these ques-

tions was correctly resolved by the Court of Appeals and

there is no conflict among the Circuits.

Moreover, even if the Petitioners were correct in their

strained interpretations of §$110(a)(2)(E) and 126,

the Administrator’s conclusion, after the lengthy and

comprehensive review of the factual allegations, that the

“evidence fails to demonstrate that sources in the named

midwestern States” are out of compliance with the sub-

stantive requirements of § 110(a) (2) (E), amounted to

a determination that the SIPs in those midwestern states

meet the amended condition for EPA approval contained

in that section. The legal issues relating to EPA’s review

of SIPs under § 110(a)(2)(E) for which this Court’s

review is sought by Petitioners are thus not raised by

this case.

REASONS FOR DENYING THE WRIT

I. Section 110(a)(2)(E) Does Not Mandate a Review of

State SIPs

Petitioners’ contention that the amendment to § 110(a)

(2) (E) in 1977 somehow compelled the states and EPA

to undertake a review of all SIPs was correctly and con-

vincingly disposed of by the Court below.”

Petitioners attempt to mute the force of the Circuit

Court’s construction of the statutory language by citing

12 See pp. 6-7, supra.

9

scattered passages in the legislative history that show

that Congress was concerned about interstate air pollu-

tion from existing sources when it enacted the provisions

dealing with interstate air pollution in 1977. See Pet.

Cert. at 9-10. This unexceptionable proposition does not

support Petitioners’ construction of either § 110(a) (2)

(E) or §126(b). Congress incorporated two specific

mechanisms in the statute to provide for the “abatement

of pollution from existing sources”: (1) the § 126(b)

petition procedure with respect to a “major source,” and

(2) the requirement in §126(a)(2) for each state to

identify “all major existing stationary sources” that

could “significantly contribute to levels of air pollution

in excess of the [NAAQSs] .. . outside the State...”

and to notify nearby states about such major sources by

November, 1977.'* The specific mechanisms created by

Congress to address the legislative purpose have been

fully complied with in this case.* The legislative history

provides no support whatsoever for Petitioners’ view that

Congress “implicitly” created a third mechanism, direct-

ing EPA to review previously approved SIPs under the

amended condition included in § 110(a) (2) (E).*®

13H.R. Rep. No. 294, 95th Cong., 1st Sess., at 330, reprinted in

1977 U.S. Code Cong. & Admin. News 1409.

14#Clean Air Act §§ 126(a)(1), (a)(2), (b), 42 U.S.C. §§ 7426

(a)(1), (a)(2), (b). See H.Rep. 95-294 at 330-31; compare H.R.

6161 § 309(b) (95th Cong., Ist Sess., April 6, 1977), reprinted in

4 Senate Committee on Environment and Public Works, 95th Cong.,

2nd Sess., A Legislative History of the Clean Air Act Amendments

of 1977, at 2446-47, with Clean Air Act §§ 126(a)(2), (b).

15 The § 126(b) mechanism was utilized in this case, and as will

be discussed in the next section, it was properly implemented by

EPA. If Petitioners had any complaint with the adequacy of the

identification and notice concerning major sources required by

§ 126(a) (2), they should have pursued that grievance more than

10 years ago. In any event, this case does not raise any claims

under § 126(a) (2).

16 The interpretation of the statute given by EPA and approved

by the Court of Appeals—that § 110(a)(2)(E) does not mandate

10

II. Section 126(b) Does Not Mandate a Review of State

SIPs

While Petitioners’ position is a bit obscure, they ap-

pear to argue that upon the filing of a petition under

§$ 126(b), EPA was obliged immediately to review the

adequacy of the SIPs of all upwind states. The sugges-

tion that the mere filing of a § 126(b) petition triggers

a massive SIP review is at odds with the statute and

with logic. As noted by the Court below, “[t|]he language

of $126(b) is quite specific and focuses on ‘major

sources,’ not the validity of a state’s SIP.” App. A-9"

Because of the Court of Appeals’ thorough and convincing

EPA to review previously approved SIPs to determine their com-

pliance with the condition for EPA approval of SIPs added by that

section—-does not render that section meaningless. First, under

EPA’s interpretation, it must apply the condition in § 110(a)(2)(E)

to any proposed amendment to an existing SIP before approving

such amendment. Second, any submission of a new SIP by a State

must be subject to the condition in that section before it can be

approved. Thus, if Congress mandates EPA to establish a NAAQS

for sulfates or acid rain, each State would be required by § 110

(a)(1) to submit a SIP which provides for implementation, main-

tenance, and enforcement of such standard within nine months of

its promulgation, and EPA would subject each such SIP to review

under the conditions of §$110(a)(2), including subsection (E),

with respect to the new NAAQS. As noted by the Court below,

“Tbjecause the Administrator’s construction of $110(a)(2) is

consistent with the plain language of that provision and is a rea-

sonable one, this Court must accept it.” App. A-12, citing Chemical

Manufacturers Association et al. v. Natural Resources Defense

Council, Inc., 470 U.S. 116 (1985); Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., et al., 467 U.S. 837 (1984).

17It is not surprising that the section would focus on specific

sources, in view of the drastic relief that follows a determination

of a §126(b) violation. See §126(c), 42 U.S.C., § 7428(c). EPA

Petitioners’ failure to name specific sources alone justified dismissal

of their petitions. That the Agency was willing to excuse this

deficiency and to consider the possibility that out-of-state sources

might be responsible for violations, hardly comports with Peti-

tioners’ attempt to portray a recalcitrant regulator.

11

rejection of Petitioners’ contention, we will not repeat all

the deficiencies inherent in Petitioners’ claim.

Petitioners, by suggesting that weather systems in the

Northeast periodically are ‘characterized by very high

ambient sulfate levels, regional haze and acid rain’ (Pet.

Cert. at 8), attempt to suggest that this case involves

important questions of national policy.

As discussed above, § 126(b) allows any state or po-

litical subdivision to petition the Administrator for a

finding that 2 major source emits or would emit any air

pollutant “in violation of the prohibition of Section 110

(a) (2) (E) (Gi).” That prohibition is against any station-

ary source

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 applicable

implementation plan for any other State... to pro-

tect visibility....

(emphasis added). Thus, in pertinent part, the § 126(b)

petition mechanism can provide relief only where a

NAAQS is involved or where a visibility protection meas-

ure is required to be part of a SIP.

The assertion that Midwestern emissions create high

ambient sulfate levels and acid rain cannot present an

issue under $ 126 because the NAAQSs do not directly

regulate sulfates’* or acid rain. Further, as discussed

below, no provisions concerning regional haze are re-

quired to be included in a_SIP. Any remedy—if one is

needed—must come from the Congress, see App. A-17

(Ruth Ginsburg, J., concurring), or from EPA in re-

1S Sulfate is a particulate, and as such it can be one component

of TSP. Pennsylvania abandoned its claim in the Court of Appeals

that Midwestern emissions caused violations of the NAAQS for

TSP in Pennsylvania, and no party here challenges the disposition

by the Court of Appeals of New York’s similar assertion.

12

sponse to a petition to revise the NAAQSs or EPA’s 1980

visibility regulations. 5 U.S.C. § 553(e) (1982); see also

Vermont v. Thomas, 850 F.2d 99, 104 (2d Cir. 1988).

IfI. Allegations that Interstate Air Pollution Causes Re-

gional Haze Are Not Cognizable in a § 126(b) Petition

Proceeding

Section 126(b) is available to protect visibility meas-

ures “required to be included” in a SIP. The Court be-

low upheld the Administrator’s rejection of Maine’s peti-

tion on the ground that regional haze is not regulated

and is not covered (or required to be) in Maine’s SIP.

Because Maine did not present a claim that was cogniz-

able under § 126(b), the Administrator, as the Court

below correctly held, was obliged to deny Maine’s peti-

tion. Maine’s real complaint appears to be that the

Agency is not moving fast enough with respect to the

regulation of regional haze. But the relief available to

Maine is to present its argument for regional haze control

in a rulemaking petition to revise the 1980 visibility

rules.’”

195 U.S.C. $ 553(e) (1982); Vermont v. Thomas, 850 F.2d 99,

104 (2d Cir. 1988). The Court below did not sanction the indefinite

postponement of “any national regulation of the problem.” Pet.

Cert. at 12. Instead, it noted that the timeliness of EPA action

on regional haze was not an issue presented by Maine’s § 126(b)

petition. Indeed, as Petitioners acknowledge, “[t]he legality of

this regulatory delay is being separately tested.” Pet. Cert. at

13, fn. 8.

The Court went on to note that to the extent Maine is attacking

the failure of the federal regulations which address what is re-

quired to be included in SIPs to protect visibility from regional

haze, then it is “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.” App. A-13 n.3.

13

IV. The Thorough and Lengthy Review of Petitioners’

Claims in This Case Was the Equivalent of the Com-

prehensive Review of Midwestern SIPs Sought by

Petitioners

Section 126(b) requires only that the EPA Adminis-

trator “make .. . a finding or deny the petition” within

sixty days after receipt of a petition and after a public

hearing. In response to the petitions in this case, EPA

initiated an extensive administrative review of the

claimed violations, compiling a detailed technical record

which Petitioners conceded, in their brief below, “reason-

ably reflects the universe of relevant fact and informed

opinion with respect to the several claims .... Pet. Br.

at 44. The Administrator gave “the most sympathetic

reading to the evidence presented by petitioners” yet he

could not make “a finding of unlawful interstate pollu-

tion.” 49 Fed. Reg. 34866 (Sept. 4, 1984).

Petitioners, understandably, do not ask this Court to

review those highly technical findings by the expert

agency to which Congress has entrusted responsibility for

adjudicating §126(b) claims. As to Pennsylvania’s

claims—of predicted, not monitored, violations—the

Agency carefully reviewed the modeling data upon which

the allegation of violations was based and concluded that

the data could not credibly support regulatory action.*°

In two of the three geographic areas where violations of

the NAAQS for SO. were alleged to occur, the data sim-

ply failed to provide a reasonable basis for concluding

that violations existed. App. A-13 to A-15. As to the

20 Respondent Monongahela Power Company’s Harrison Power

Station, in Harrison, West Virginia, has already withstood a

challenge by Petitioner Pennsylvania. In a SIP revision proceed-

ing under Section 110(a)(2) involving nearly identical evidence

to that in the instant case, EPA and the Third Circuit determined

that the Harrison plant was not responsible for impermissible

air quality impacts in Pennsylvania. 45 Fed. Reg. 74478 (Nov. 10,

1980) ; Pennsylvania v. Costle, 672 F.2d 902 (3rd Cir. 1981) (deny-

ing petitions for review).

14

remaining predicted violation, the Agency concluded that

out-of-state sources did not “significantly contribute” to

the predicted violation. The Court below correctly ob-

served that “[o]nce again [it was] being asked to second-

guess the scientific judgments of the EPA. Once again,

we are at our ‘most deferential,’” citing Baltimore Gas

& Electric Co., et al. v. Natural Resources Defense Coun-

cil, Inc., 462 U.S. 87, 103 (1983). App. A-15.

In the final analysis, EPA undertook precisely the in-

quiry that would have governed the review of the Mid-

western SIPs for their conformity with § 110(a) (2) (E).

Petitioners concede that the substantive inquiry under

$ 126(b) is the same as that under § 110(a) (2) (E). In

these circumstances, even assuming arguendo that the

$126(b) petitions were sufficient to trigger review of

the Midwestern state SIPs, EPA’s failure to state in

haec verba that those SIPs have adequate provisicns to

prevent violations of $ 110(a) (2) (E) in the petitioning

States was, at worst, harmless procedural error.*!

VY. There Is No Conflict Among the Circuits

Petitioners contend that the decision below “is incon-

sistent -* with decisions in three other circuits,” referenc-

ing Connecticut V. EPA, 656 F.2d 902 (2nd Cir. 1981) ;

Neu York v. EPA, 710 F.2d 1200 (6th Cir. 1983); and

New York v. EPA, 716 F.2d 440 (7th Cir. 1983). Peti-

tioners are in error.

21 There seems to be no difference even with respect to the burden

of proof. First. EPA “accepted, for purpose of analysis, the most

favorable view of the States’ evidence.” App. B-13. Second, EPA

found that “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.” Jd.

22 We note with interest that the Petitioners claim that the cited

cases are “inconsistent with” rather than in conflict with the de-

cision of the Court below. In fact, the cases are neither “incon-

sistent with” nor “in conflict with” the decision of the Court below.

15

As did the Second Circuit in the Connecticut case, the

Court below assumed that the substantive standard was

the same whether EPA was reviewing a SIP under § 110

(a) (2)(E) or reviewing a petition under § 126. There

is no conflict on that point. Nor is there a conflict with

the decisions of the Sixth and Seventh Circuits. In each

of those cases, the Court merely held that EPA acted rea-

sonably in approving a SIP revision governing a single

source and in deferring determination of New York’s

claims that the cumulative SO. emissions from sources

in the Midwest were having an impermissible effect on

New York’s ability to meet the NAAQS for TSP until

disposition of the state’s $126(b) petition, which was

then pending before EPA.

As we have shown, EPA did rule on the merits of New

York’s claims in the §$ 126 proceeding,” and the Agency

and the Court below ruled on the merits of Pennsyl-

vania’s claims concerning SO.. EPA did consider the

cumulative impact of numerous sources in the § 126(b)

proceeding, but found that “the evidence fails to demon-

strate that sources in the named midwestern States are

preventing the attainment or maintenance of the SO.

or TSP” standards in the petitioning States. There is no

inconsistency or conflict between the cited cases and the

decision by the Court below. Petitioners failed not be-

cause the Agency or the Court below disagreed that

$126(b) is “the appropriate vehicle for considering the

interstate impact if multiple sources” (Pet. Cert. at 13),

but because the evidence did not suppert a finding of

violation.

“3 Those claims became moot while this case was pending in the

Court of Appeals because of the revision of the TSP standards, and

no party challenges the disposition of those claims.

16

CONCLUSION

For the foregoing reasons, this Court should deny the

writ requested.

LAWRENCE A. DEMASE

J. DANIEL HULL

Rose, SCHMIDT, HASLEY

& DISALLE

1250 24th Street, N.W.

Suite 630

Washington, D.C. 20037

(202) 293-8600

(Counsel for Monongahela

Power Company)

JAMES E. Fox

Deputy General Counsel

TENNESSEE VALLEY AUTHORITY

400 West Summit Hill Drive

Knoxville, TN 37902

(615) 632-4151

(Counsel for Tennessee Valley

Authority)

Respectfully submitted,

EDWARD BERLIN *

ROBERT S. TAYLOR

SWIDLER & BERLIN, Chartered

3000 K Street, N.W.

Suite 300

Washington, D.C. 20007

(202) 944-4300

(Counsel for Cincinnati Gas &

Electric Company, et al.)

* Counsel of Record

December 22, 1988

la

ATTACHMENT 1

STATEMENT REQUIRED BY RULE 28.1

Allegheny Pittsburgh Coal Company

Allegheny Power Service Corporation

Allegheny Power System, Inc.

Allegheny Generating Company

American Electric Power Company

Appalachian Power Company

Centerior Energy Corporation

Cleveland Electric Illuminating Company

CMS Energy Corporation

Columbus Southern Power Co.

Commonwealth Edison Company

Consumers Power Company

Dayton Power & Light Company

Electric Energy, Inc.

Illinois Power Company

Illinois Power Finance Company N.V.

Illinois Power Fuel Company

Indiana Michigan Power Co.

Indiana-Kentucky Electric Corporation

Indianapolis Power & Light Company

IPALCO Enterprises, Inc.

Kentucky Power Company

Kentucky Utilities Company

Louisville Gas & Electric Company

Monongahela Power Company

Ohio Edison Company

Ohio Power Company

Ohio Valley Electric Corporation

Oxford Energy Company

Pennsylvania Power Company

2a

PSI Holdings, Inc.

Public Service Company of Indiana, Inc.

Southern Indiana Gas & Electric Company

The Cincinnati Gas & Electric Company

The Potomac Edison Company

Toledo Edison Company

Union Light, Heat & Power Company

West Penn West Virginia Water Power Company

West Penn Power Company

West Virginia Power and Transmission Company