Memorandum — Environmental Protection Agency v. Duquesne Light Co.

Supreme Court, U. |

FILED

——

/-

IN THE DE 19 mas

Supreme Court of the United. States StAURE. ccc |

———

NO. 75-736 OCTOBER TERM 1975

EE

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner

Vv.

DUQUESNE LIGHT COMPANY, PENNSYLVANIA

POWER COMPANY AND OHIO EDISON COMPANY,

Respondents

On Petition for A Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF FOR RESPONDENTS, DUQUESNE LIGHT

COMPANY, ET AL., IN SUPPORT OF IMMEDIATE

CONSIDERATION OF PETITION FOR CERTIORARI,

GRANT OF CERTIORARI, AND ACCELERATED

ARGUMFNT

DAVID MCNEIL OLDS

JOHN MCN. CRAMER

ROBERT M. WALTER

REED SMITH SHAW & MCCLAY

Attorneys for Respondents

747 Union Trust Building

P. O. Box 2009

seamen Pennsylvania 15230

SMITH BROS., Law PRINTERS, 620 SECOND AVENUE. ‘PITTSBURGH, PA. 15219

———$—— ee ————— —_— _-

PAGE

I adel dy itahnicd ia tiiglad Celene ila ee ot Sea 1

I nc cesiee aca Rielusaeeiaiesaaiasmmaane 1

I 2

acs cnessuicnes aiiednaiedeaabaaeaniera 2

ne ie NE IOS FER OPEN Se a,

III -duaets casctcveaetestuisscceonedassndedimertaaeneamiemaniunaaell 6

ERR ERR oe ek eee aeRO TIE RMU ROR SC 8

CITATIONS

CASES PAGE

Duquesne Light Co., et al. v. EPA, 481 F.2d 1 (3rd

RCI SE R Se bee a Ae, B 4,6

St. Joe Minerals Corp. v. EPA, 508 F.2d 743 (3rd

IIIT. - dice icdeasenaniasndeciiecaneniananihdecdoci na! 6

Union Electric Co. v. EPA, No. 74-1542... 6

STATUTES AND REGULATIONS

Administrative Procedure Act, as amended, 80 Stat.

381 et seq., 5 U.S.C. 551 et seq. 2.2... 4

Clean Air Act

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

I ee ee oe kl 3

$110(a)(1), as amended, 84 Stat. 1680, 42

Wea WOM D ED coccvececccccscccscccesecscencecess. 3

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

Pte MUGEN CUED ov vccscccscccscccccncoscecasss. aa 2,3

$304, as amended, 84 Stat. 1706, 42 U.S.C.

RATES OL IT TLE RA TDR ese —

$307(b) (1), as amended, 84 Stat. 1707, 4

Ws MEET GENO cnevecevececcesassecerssescecexseces 4

RAR IER EA RRA NNe UE PAL ERED ORR: . 8

Supreme Court of the United States

NO. 75-736 OCTOBER TERM 1975

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner

V.

DUQUESNE LIGHT COMPANY, PENNSYLVANIA

POWER COMPANY AND OHIO EDISON COMPANY,

Respondents

On Petition for A Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF FOR RESPONDENTS, DUQUESNE LIGHT

COMPANY, ET AL., IN SUPPORT OF IMMEDIATE

CONSIDERATION OF PETITION FOR CERTIORARI,

GRANT OF CERTIORARI, AND ACCELERATED

ARGUMENT

OPINION

The Opinion of the Court of Appeals (Petitioner's

Appendix A) is reported at 522 F.2d 1186.

JURISDICTION

The jurisdictional requisites are adequately set

forth in the Petition.

Statute Involved.

QUESTION PRESENTED

Where:the record shows that a state did not give

serious consideration to the technological or economic

feasibility of compliance with 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 the Adminis-

trator of the Environmental Protection Agency required

to approve the emission standard without regard to

whether the emission standard is a technically and

economically feasible means of attaining ambient air

quality standards

STATUTE INVOLVED

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

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

Petitioner’s Appendix B.

Statement.

STATEMENT

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

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

trator of the Environmental Protection Agency (herein-

after “EPA’’) should promulgate ambient air quality

standards for substances to be determined by him.

Ambient air quality standards are both “primary” and

“ econdary”’. Primary ambient air quality standards are

iutended 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 adequate margin of safety. Section 110

(a) (1) of the Clean Air Act, as amended, 84 Stat. 1680,

42 U.S.C. 1857c-5(a) (1), provides that each state within

a specified period of time after the promulgation of

ambient air quality standards must submit a plan for

the implementation, maintenance and enforcement of the

ambient standards. These submissions by the states are

commonly referred to as implementation plans. Secticn

110(a) (2) of the Clean Air Act, as amended, 84 Stat.

1680, 42 U.S.C. 1857c-5(a) (2), provides that within four

months after the submission of an implementation plan

the Administrator shall decide whether to approve its

provisions. Upon approval the implementation plan be-

comes enforceable by the federal authorities under

specified conditions. The sanctions include civil and

criminal remedies with fines of up to $25,000 per day.

Also the provisions of approved implementation plans

can be enforced in the federal courts by private individ-

uals and entities under £304 of the Clean Air Act, as

amended, 84 Stat. 1706, 42 U.S.C. 1857h-2.

To guide the states in developing implementation

plans, the Administrator published regulations for their

preparation. 40 CFR Part 51. Appendix B to those regu-

Statement.

lations was titled, “Examples of Emission Limitations

Attainable with Reasonably Available Technology”

(“Examples”).

On January 27, 1972 the Commonwealth of Pennsyl-

vania submitted its implementation plan to the Adminis-

trator. The provision applicable to Respondents here

limited sulfur oxides emissions from the facilities of

Respondents to half the level described in the Examples

referred to above.

On May 31, 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, the Respondents

were exposed to penalties under the Clean Air Act for

violation of the regulation and to citizen suits in the

federal forum to enforce the regulation against them.

Therefore, on June 26, 1972, the Respondents 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 Pennsylvania Implementation Plan

in question.

On November 14, 1972 the Respondents filed a Mo-

tion to Remand the matter to the EPA for a hearing

because of the failure of EPA to comply with the require-

ments of the Administrative Procedure Act, as amended,

80 Stat. 381 et seq., 5 U.S.C. 551 et seq., and procedural

due process in approving the Pennsylvania Implementa-

tion Plan. On January 22, 1973 the Court of Appeals

entered its order remanding the matter to EPA. There-

after EPA filed a motion for clarification of the scope

of the remand. On June 5, 1973 the Court of Appeals in

an opinion reported as Duquesne Light Co., et al. v. EPA,

-

Statement.

481 F.2d 1, (‘“‘Duquesne I”) gave EPA instructions either

to stay the effectiveness of the Pennsylvania Implementa-

tion Plan as a federal regulation while the Respondents

exhausted their state remedies or to conduct hearings, in

which Pennsylvania and the Respondents would partici-

pate, with regard to the technological and economic

feasibility of the provisions of the Pennsylvania Imple-

mentation Plan in question. The EPA chose to hold its

own hearings and did so on November 26, 1973 and Jan-

uary 16, 1974. Contrary to the procedure contemplated

by the order of the Court of Appeals, Pennsylvania did

not actively participate. On March 29, 1974 EPA filed a

decision holding that the provisions of the Pennsylvania

Implementation Plan in question were economically and

technologically feasible. The Respondents sought a

further remand on the ground that EPA in its adminis-

trative decision relied on materials which had not been

available at the time of the hearing and upon which the

Respondents had no opportunity to comment. The Court

of Appeals granted the request of the Respondents for a

second remand and a further hearing was held before

EPA on July 30, 1974. On September 17, 1974 EPA

rendered its second administrative decision holding the

provisions of the Pennsylvania Implementation Plan in

question technically and economically feasible. The Re-

spondents sought further review of this decision in the

Court of Appeals for the Third Circuit which on August

21, 1975 issued its decision holding that the conclusion

of EPA that the provisions of the Pennsylvania Imple-

mentation Plan in question were technologically and

economically feasible on the basis of the record before

the EPA was arbitrary and capricious. The Court of

Appeals remanded the matter to EPA for further hear-

ings. It is this decision which is the subject of the

present Petition for Certiorari.

Argument.

ARGUMENT

The Court should not defer consideration of the

Petition for Certiorari in this matter. Instead the Court

should grant the Petition of the Solicitor General for

Certiorari and affirm the decision of the Court of Appeals

for the Third Circuit. We respectfully suggest that the

Court should either consolidate this case for argument

with the case of Union Electric Co. v. EPA, No. 74-1542,

Petition for Certiorari granted October 6, 1975, or ad-

vance this case ahead of the Union Electric case on the

Court’s argument list.

The Court should grant certiorari in this matter

because it has previously granted certiorari in Union

Electric Co. v. EPA, No. 74-1542, where one of the prin-

cipal grounds advanced for granting certiorari in the

Petition was the conflict with the decision of the Court of

Appeals for the Third Circuit in Duquesne Light Co.., et al.

v. EPA, 481 F.2d 1 (3rd Cir. 1973) (“Duquesne I” and

St. Joe Minerals Corp. v. EPA, 508 F.2d 743 (3rd Cir.

1975). The present case (‘Duquesne II’’) is based on the

same interpretation of the Clean Air Act as the prior

decisions of the Court of Appeals for the Third Circuit.

The Court should consolidate the present case for

argument with the Union Electric case or advance it

ahead of the Union Electric case for argument because

the record in the present case is much more complete

than Union Electric. In the Union Electric case the Court

of Appeals noted the complete absence of an agency

record. In Duquesne Light II there is an extensive ad-

ministrative record which shows the role the EPA allo-

cated to considerations of technological and economic

feasibility. The record will also assist the Court in

evaluating the practical implications of the alternatives

Argument.

with regard to the construction of the Clean Air Act

which are at issue here. In addition, in a case where the

Court is being asked to choose between the interpreta-

tions of the Clean Air Act by the Eighth Circuit or the

Third Circuit or to choose still another course, it will be

helpful to the Court to have the benefit of argument

from counsel involved in the Third Circuit proceedings.

In his Petition for Certiorari the Solicitor General

has argued that the outcome of the present case would

be controlled by Union Electric if Union Electric were

decided first. Thus if the present case is not considered

at the same time as Union Electric, Respondents will

be deprived of the opportunity to present their con-

tentions with regard to the proper construction of the

Clean Air Act to this Court.

In order to expedite this matter so that it can be

consolidated with the Union Electric proceeding without

undue delay, we have filed this response prior to the time

by which it is required under the Rules of this Court.

S

Conclusion.

CONCLUSION

For the above reasons consideration of the Petition

for Certiorari should not be deferred. On the contrary

certiorari should be granted promptly. The present case

should be considered on the merits at the same time as

or prior to the Union Electric case, and the opinion of

the Court of Appeals for the Third Circuit should be

affirmed.

Respectfully submitted,

DAVID MCNEIL OLDS

JOHN MCN. CRAMER

ROBERT M. WALTER

REED SMITH SHAW & MCCLAY

Attorneys for Duquesne Light Company,

Pennsylvania Power Company and

Ohio Edison Company

Dated: December 18, 1975