Opposition — Environmental Protection Agency v. St. Joe Minerals Corp.

Saprome Oonrt, 6. & |

FILED

No. 74-1650 JUL 39 1975

IN THE MICHAEL REDAT, JCLERK

Supreme Court of the United States

OCTOBER TERM 1975

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner

Vv.

ST. JOE MINERALS CORPORATION, Respondent

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Third Circuit.

BRIEF FOR RESPONDENT, ST. JOE MINERALS

CORPORATION, IN OPPOSITION TO THE GRANT

OF THE PETITION FOR CERTIORARI

John MeN. Cramer

Reed Smith Shaw & McClay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Attorneys for Respondent

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

INDEX

—_——_—— PAGE

OSES SST OT TOTTTED 1

Neen ss ssnsancens-conssenaves 1

Neen ee eee ass. ssescsccnscneossssenens 1

EE SES TET 2

cS °c tie

Argument ........ LSS EE 6

EES ETI Bitte 11

CITATIONS

CASES PAGE

Appalachian Power Co. v. EPA, 477 F.2d 495 (4th

Cir. 1973) ..... a, cc scnnncnensseccscnes 7. ‘es

Buckeye Power, Inc. v. EPA, 481 F.2d 162, (6th Cir.

a. cussnnsensonecccssoocs 8

Duquesne Light Co. v. EPA, 481 F.2d 1 .................... 4

Indiana & Michigan Electric Co. v. EPA, 509 F.2d

Teen. scenesnccconee 9

North Carolina v. Rice, 404 U.S. 244 (1971) .............. 8

Train v. Natural Resources Defense Council, Inc.

No. 73-1742, decided April 16, 1975, 43 L.Ed.

Nee cavuspecnecs S

Union Electric Co. v. EPA, 515 F.2d 206 (8th Cir.

Te cuusuneccuences Q

STATUTES AND REGULATIONS

Administrative Procedure Act, as amended, 80 Stat.

381 et seq., 5 U.S.C. 551 et seq. .......... 4

Clean Air Act

£109, as amended, 84 Stat. 1679, 42 U.S.C.

se chascestecnnecccnconcs 2,6

£110(a)(1), as an nded, 84 Stat. 1680, 42

Bi, PUUPOOD CED ......ccccccccccccccccccccccccccnss. 2

£110(a)(2), as amended, 84 Stat. 1680, 42

NT 1,2

$307(b) (1), as amended, 84 Stat. 1707. 42

on. .ccsccccsvenenccuusscsces 3,6

Neen TT ee sevonsnncccumnces 2

25 Pa. Code 123.21(b) ........ a ee 3

IN THE

Supreme Court of the United States

OCTOBER TERM 1975

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner

Vv

ST. JOE MINERALS CORPORATION, Respondent

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Third Circuit.

BRIEF FOR RESPONDENT, ST. JOE MINERALS

CORPORATION, IN OPPOSITION TO THE GRANT

OF THE PETITION FOR CERTIORARI

OPINION

The Opinion of the Court of Appeals (Petitioner’s

Appendix A) is reported at 508 F.2d 743.

JURISDICTION

The jurisdictional requisites are adequately set

forth in the Petition.

QUESTION PRESENTED

Where the record does not show that an emission

limitation contained in a state implementation plan

submitted under $110(a)(2) of the Clean Air Act, as

amended, 84 Stat. 1680, 42 U.S.C. 1857c-5(a) (2), is

necessary to achieve a primary ambient air quality

standard, and the record shows that the state did not

Statement.

give serious consideration to the technological or econ-

omic feasibility of compliance with the limitation, is

the Administrator of the Environmental Protection

Agency required to give the emission limitation the

force of a federal regulation when he has found the

limitatioxw to be technologically infeasible?

STATUTE INVOLVED

Section 110(a) (2) of the Clean Air Act, as amend-

ed, 84 Stat. 1680, 42 U.S.C. 1857c-5(a) (2), is set forth

in Petitioner’s Appendix C.

STATEMENT

Section 109 of the Clean Air Act, as amended, 84

Stat. 1679, 42 U.S.C. 1857c-4, provides that the Admin-

istrator of the Environmental Protection Agency (EPA)

should promulgate ambient air quality standards for

substances to be determined by him. Am/ient air qual-

ity standards are both “primary” and “secondary”. Pri-

mary ambient air quality standards are intended to be

those requisite to protect the public health; secondary

ambient air quality standards are those necessary to

protect the public welfare, in both cases with an ade-

quate margin of safety. Section 110(a) (1) of the Clean

Air Act, as amended, 84 Stat. 1680, 42 U.S.C. 1857¢-5

(a) (1), provides that each state within a specified per-

iod of time after the promulgation of ambient air qual-

ity stcndards must submit a plan for the implementa-

tion, maintenance and enforcement of the ambient stan-

dards. These submissions by the states are commonly

referred to as implementation plans. To assist the states

in developing implementation plans, the Administrator

published regulations for their preparation. 40 C.F.R.

Statement.

Part 51. Appendix B to those regulations was titled,

“Examples of Emission Limitations Attainable With

Reasonably Available Technology” (‘“Exampies). The

Examples included an emission standard for zine smelt-

ers such as that operated by St. Joe Minerals Corpora-

tion, Respondent, (hereinafter, “Respondent” or “St.

Joe”). The standard described in the Examples would

have required St. Joe to capture approximately 94° of

the potential sulfur oxide emissions from its zinc smelt-

er. On January 27, 1972, the Commonwealth of Penn-

sylvania submitted its implementation plan to the Ad-

ministrator. The only provision in the implementation

plan governing sulfur oxide emissions from zinc smelt-

ers was one found at 25 Pa. Code 123.21(b) which gov-

erns sulfur oxide emissions from processes generally

and does not refer specifically to zinc smelters. The

Pennsylvania standard was substantially more restric-

tive than the standard proposed in the Examples issued

by the Administrator. The Pennsylvania regulation re-

quired capture of approximately 97°: of the potential

sulfur oxide emissions from Respondent’s zinc smelter.

On May 27. 1972, the Administrator approved the

Pennsylvania Implementation Plan, thus giving the

Pennsylvania standard in question the force of a sub-

stantive federal regulation. As a result, St. Joe was ex-

posed to penalties under the Clean Air Act for violation

of the regulation and to citizen suits in the federal forum

te enforce the regulation against it. Therefore, on June

26, 1972, St. Joe filed a petition for review in the Court

of Appeals for the Third Circuit pursuant to $307(b) (1)

of the Clean Air Act, as amended, 84 Stat. 1707, 42

U.S.C. $1857h-5(b} (1), with regard to the action of the

Administrator in approving the provision of the Penn-

sylvania Implementation Plan in question. On September

Statement.

14, 1972 St. Joe filed a motion to remand the matter to

the EPA for a hearing because of the failure of EPA to

comply with the requirements of the Administrative

Procedure Act, as amended, 80 Stat. 381 et seq., 5 U.S.C.

ool et seq., and procedural due process in approving the

Pennsylvania Implementation Plan. On June 5, 1973 in

an opinion reported at 481 F. 2d 1, the Court of Appeais

for the Third Circuit granted Petitioner’s Motion sub

nom Duquesne Light Co. v. EPA.

As a result of the decision of the Court of Appeals

for the Third Circuit with regard to St. Joe’s motion for

remand, administrative proceedings were conducted by

EPA. In the proceeding on remand it became clear that,

despite the fact that approximately half the zinc smelter

capacity in the United States is located in Pennsylvania,

Pennsylvania had adopted the standard in question

without evaluating the technical or economic feasibility

of compliance with it by zinc smelters and without giv-

ing consideration to whether the standard proposed by

Pennsylvania, rather than the standard in the EPA

Examples, was necessary in order to achieve ambient air

quality standards. On March 18, 1974, the Adminis-

trator issued a decision in which he announced a find-

ing that the Pennsyivania emission limitation for sulfur

oxides as applied to zinc smelters was not technological-

ly feasible and that therefore he would not reach the

question of economic feasibility. He indicated that EPA

would not enforce the Pennsylvania standard and that

it would recommend to Pennsylvania that its standard

be modified. However, the Administrator took the posi-

tion that he did not have the power to disapprove a

standard simply because it was technologically infeas-

ible. The Court of Appeals for the Third Circuit rejected

this contention, reasoning that when a provision of an

Statement.

implementation plan is not technologically feasible and

is not shown to be necessary for the attainment of an

ambient air quality standard the Administrator is not

obliged mindlessly to rubber stamp it into federal law.

On July 17, 1975, following public hearings, Penn-

sylvania adopted an amendment to its air pollution con-

trol regulations governing sulfur oxides emissions from

zinc smelters. Compliance with the amended regulation

appears to be technologically and economically feasible.

With regard to St. Joe’s operations, the amendment to

the regulations supersedes the regulation which was the

subject of the petition for review filed by St. Joe. Thus,

the regulation which was the subject of the proceeding

before the Court of Appeals and of the present Petition

for Certiorari is no longer applicable to St. Joe.

Argument.

ARGUMENT

1. There are no issues involved in this case which

have sufficient importance to justify consuming the time

of this Court in their resolution. Under the provisions

of the Clean Air Act, implementation plans were to be

submitted by the end of January 1972 and the Adminis-

trator was to take action with regard to approval or

disapproval by May 31, 1972.* A petition for review

of the action of the Administrator in approving an im-

plementation plan must be filed within 30 days of the

approval unless based on grounds arising after the 30th

day.** Hence the time has long since passed for the

filing of petitions for review based on the technical or

economic infeasibility of an implementation plan.

The limited impact of the instant decision is con-

firmed by the fact that although the Petition for Certio-

rari was filed more than three years after the deadline

for filing petitions for review, it cites only five other

cases in the Courts of Appeals concerning review of the

technical and economic feasibility of an implementation

plan.

Moreover, the decisions cited in the Petition for

Certiorari are primarily limited to cases involving the

generation of electrical energy. EPA has repeatedly de-

termined that emission limitations with regard to elec-

tric generation as stringent as the limitations found in

the challenged implementation plans are technologically

and economically feasible.

“Clean Air Act ‘$109 and 110, as amended, 84 Stat.

1679 and 1680, 42 U.S.C. 1857c-4 and 1857c-5.

**Clean Air Act $307(b) (1), as amended, 84 Stat. 1707,

42 U.S.C. 1857h-5(b) (1).

Argument.

The instant case presents a highly unusual fact situ-

ation in that the Administrator had furnished the states

with guidance as to the emission limitation attainable

with reasonably available control technology for zinc

smelting but the Commonwealth of Pennsylvania chose

to ignore this guidance without determining that a more

stringent limitation was either technologically attain-

able or necessary to achieve ambient air quality stand-

ards. It seems most unlikely that such a situation will

arise with sufficient frequency to justify the consump-

tion of the time of this Court in determining the ap-

propriate manner in which to deal with it.

2. In addition, this matter appears to have become

moot. On April 17, 1975, the Environmenta) Quality

Board of the Commonwealth of Pennsylvania authorized

the holding of public hearings on the adoption of a new

regulation governing sulfur oxides emissions from zinc

smelters which Respondent agrees is economically and

technologically feasible. In connection with the proposed

new regulation the Environmental Quality Board pub-

lished supporting documentation which indicates that

the proposed regulation is consistent with the attain-

ment of primary ambient air quality standards. Public

hearings were held on the proposed regulation on June

9 and 10, 1975. No material opposition to the proposed

regulation was advanced at either hearing. On July 17,

1975 the proposed regulation was approved by the En-

vironmental Quality Board to be effective fifteen days

after publication in the Pennsylvania Bulletin on July

26, 1975. In the normal course of events the new regula-

tion will be submitted to EPA as a revision of the im-

plementation plan. Thus there is no longer any contro-

versy between St. Joe and EPA with regard to the sulfur

Argument.

oxides emission standard for zine smelters in the Penn-

sylvania Implementation Plan. This Court should not

attempt the resolution of the question presented by the

instant Petition in a situation where the Respondent

will no longer be affected by the outcome. North Caro-

lina v. Rice, 404 U.S. 244 (1971).

3. The Petition suggests that certain language in

the decision of this Court in Train v. Natural Resources

Defense Council, Inc., No. 73-1742, decided April 16,

1975, 43 L.Ed. 2d 731 (““NRDC’’), appears to be incon-

sistent with the decision of the Court of Appeals in the

instant case. However, the language in NRDC on which

Petitioner relies does not constitute a holding of this

Court but is simply dicta, not necessary to a resolution

of the issue in NRDC. Moreover, it is clear from this

Court’s opinion in NRDC that the parties before it did

not disagree with regard to the “analysis of the Act’s

division of responsibilities”. 43 L.Ed. at p. 746. In fact

the parties before this Court in NRDC had no incentive

to raise the issue presented by the instant petition. Thus

any comments of this Court which appear to be incon-

sistent with the ruling of the Court of Appeals for the

Third Circuit in the instant case should be read in light

of the absence of any adversary presentation in the

NRDC case on the point presently at issue.

4. The alleged conflict in the circuits described in

the Petition is more apparent than real. As noted in foot-

note 6 at page 7 of the Petition, the Court of Appeals

for the Fourth Circuit appears to be in agreement with

the decision of the Third Circuit in the present case.

Appalachian Power Co. v. EPA, 477 F.2d 495, 505 (4th

Cir. 1973). The decision in the Sixth Circuit in Buckeye

Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973), and

Argument.

the decision of the Seventh Circuit in Indiana & Michi-

gan Electric Co. v. EPA, 509 F.2d 839 (7th Cir. 1975),

recognized that technical and economic feasibility are

relevant with regard to the enforcement of provisions

of an implementation plan. Moreover, although these

decisions do not require the Administrator to review

the technological or economic feasibility of an implemen-

tation plan prior to its approval, neither of these deci-

sions represents a holding on the precise issue in this

case: namely, whether the Administrator is precluded

from disapproving a provision of an implementation

plan which he has found to be technologically or econo-

mically infeasible. Even the decision of the Court of

Appeals for the Eighth Circuit in the case of Union

Electric Co. v. EPA, 515 F.2d 206 (8th Cir. 1975) *, did

not involve a situation where the Administrator had al-

ready made a finding that a provision of an implementa-

tion plan was technologically infeasible for an important

industry. Thus the Court of Appeals for the Eighth Cir-

cuit did not have occasion to determine whether the

Administrator is barred from acting on the basis of a

previously made finding of technological infeasibility.

Close examination reveals that no case has held that the

Administrator is required to approve a provision of an

implementation plan he has found to be technologically

infeasible.

5. The question posed by the Petitioner is not in

fact raised by the decision which is the subject of the

present Petition for Certiorari. The decision of the Court

of Appeals for the Third Circuit in the St. Joe case deals

only with the question whether the Administrator has

*A Petition for Certiorari in the Union Electric case is

pending at No. 74-1542.

10

Argument.

the power to disapprove a provision of an implementa-

tion plan he has found to be technologically infeasible

when the state had disregarded EPA guidance with

regard to a technologically feasible emission limitation

without offering any justification for doing so and when

the state limitation had not been shown to be necessary

te the attainment of primary ambient air quality stand-

ards. The instant case simply does not present the ques-

tion whether the Administrator is required to make a

determination “whether each element of a state’s im-

plementation plan is economically and technologically

feasible for all sources of emissions affected by the plan.”

(Petition at page 9). It presents only the question

whether the Administrator, once having made a deter-

mination of technological infeasibility with regard to a

particular emission limitation for a particular source

of emissions, has the power to act on his determination.

11

Conclusion.

CONCLUSION

For the reasons set forth above the Petition for

Certiorari should be denied.

Respectfully submitted,

John McN. Cramer

Reed Smith Shaw & McClay

Attorneys for Respondent,

St. Joe Minerals Corporation

Dated: July 30, 1975