Supplemental Brief — Environmental Protection Agency v. Duquesne Light Co.

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FEB 28 976

IN THE

Supreme Court of the United Stites“ *-"™ |

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

SUPPLEMENT TO BRIEF FOR RESPONDENTS,

DUQUESNE LIGHT COMPANY, ET AL.

DaviIp MCNEIL OLDs

JOHN MCN. CRAMER

ROBERT M. WALTER

REED SMITH SHAW & MCCLAY

Attorneys for Respondents

747 Union Trust Building

P. O. Box 2009

roe shnetendiiiaens 15230

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

IN THE

Supreme Court of the United States

NO. 75-736 OCTOBER TERM 1975

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 Stetes

Court of Appeals for the Third Circuit

SUPPLEMENT TO BRIEF FOR RESPONDENTS,

DUQUESNE LIGHT COMPANY, ET AL.

On November 22, 1975, Respondents received a copy

of a petition for certiorari in the above-captioned mat-

ter. On December 18, 1975 Respondents filed their brief

in response to the petition in which they urged imme-

diate consideration of the petition for certiorari, grant

of the petition and accelerated argument.* The reason

for the Respondents’ action was to attempt to obtain

review of the instant case by this Court at the same

time as or prior to the review by this Court in the case

of Union Electric Co. v. EPA, No. 74-1542, petition for

certiorari granted October 6, 1975. Respondents’ re-

*The brief in response was captioned “Brief For

Respondents, Duquesne Light Company, et al., In Sup-

port Of Immediate Consideration Petition For Cer-

tiorari, Grant Of Certiorari, And Accelerated Argu-

ment.”

Supplement to Brief.

quests to this Court were not granted, and argument of

the Union Electric case took place on January 21, 1976.

Accordingly, Respondents believe that it is now appro-

priate to set forth the reasons why the result below was

correct so that this Court should deny certiorari regard-

less of its decision in the Union Electric case or, if it

grants certiorari, why it should give the instant case

individual and separate attention. The procedural his-

tory of the instant case is set forth in Respondents’

brief in response to the petition for certiorari.

Argument.

ARGUMENT

The Court of Appeals for the Third Circuit Correctly

Held That the Inability of Major Sources to Comply With

Emission Limitations in an Implementation Plan Is Rele-

vant to the Administrator’s Decision to Approve a Plan

Because a Plan Which Cannot Be Implemented for

Technological or Economic Reasons Will Not Result

In Achievement of Ambient Air Quality Standards.

The view of the Environmental Protection Agency

that the Administrator in making his decision whether

to approve an implementation plan is forbidden to ex-

amine the ability of major sources to comply with the

emission limitations in the plan is a classic example of

inability to see the forest because of obsession with the

individual trees of Section 110(a) (2) of the Clean Air

Act, as amended, 84 Stat. 1680, 42 U.S.C. §1857c-5(a)

(2). The object of an implementation plan is (or cer-

tainly should be) achievement of ambient air quality

standards. If a state advises the Administrator that it

will achieve ambient air quality standards by placing

restrictions on all coal fired electric generating stations

of a major electric utility in the state, the Administrator

has the duty to determine whether the restrictions are

technologically and economically feasible before accept-

ing them as the state’s implementation plan. If he does

not, and approves the plan, and the deadline for achieve-

ment of ambient air quality standards arrives with the

emission sources unable to comply, the only alternatives

will be termination of operation of the stations, or

failure of the plan to implement the direction of the

Clean Air Act to achieve prescribed ambient air quality.

Since termination of the operations of an electric utility

is far too drastic a measure to carry out, the result will

be failure of the state implementation plan. Respondents

Argument.

urge and the Third Circuit held that the Administrator

has the duty under the Clean Air Act to conduct a suf-

ficient review of an implementation plan to prevent this

situation from happening.

The experience of Duquesne Light Company (‘Du-

quesne”’) is a concrete example of the unsatisfactory

result which follows if technical and economic considera-

tions are ignored.

Duquesne commenced its investigation of flue gas

desulfurization even prior to the adoption of the 1970

amendments to the Clean Air Act. Following the adop-

tion of the 1970 amendments, Pennsylvania submitted to

the Administrator an implementation plan which re-

stricted emissions of sulfur dioxide from Duquesne’s

facilities to less than half the quantity EPA had ad-

vised could be attained with reasonably available con-

trol technology. The record in the present case shows

that Pennsylvania made no study of means of attain-

ing the emission limitation it selected. Pennsylvania’s

choice was a purely arbitrary one. However, that emis-

sion limitation was submitted to the Administrator with

the representation that compliance with it would enable

Pennsylvania to attain the pr.mary ambient air quality

standard for sulfur dioxide by July 1975. The Ad-

ministrator in turn approved the plan without making

any determination as to whether it was feasible to carry

out its provisions.

Although Duquesne questioned its ability to meet

the sulfur dioxide emission standard, it continued to

work diligently on installing the technology necessary

for flue gas desulfurization. To date it has invested more

than sixty-six million dollars in flue gas desulfurization

systems for its Elrama and Phillips generating stations.

Arqument.

As of the date of this brief, because of repeated failures

of equipment and technical problems, these stations are

still not in compliance with the emission limitation of

the Pennsylvania Implementation Plan.

The Third Circuit recognized that the Administra-

tor had a responsibility to do his best to make certain

that ambient air quality standards were met in accord-

ance with the statutory schedule. It conciuded that if a

state proposed an implementation plan that could only

be successful if certain sources attained particular limi-

tations, the Administrator had the duty to determine

whether those emission limitations could be attained

within the allowed time. If they could not, the Court

held the Administrator had the duty to disapprove the

plan. Under the Clean Air Act the state would then be

required to devise a workable mix of emission limita-

tions or other mechanisms for achieving the ambient

air quality standards.

The Administrator cannot avoid his major responsi-

bility under the Clean Air Act—achievement of ambient

air quality standards—by arguing that he does not have

the power under the Act to disapprove an implementa-

tior plan which he knows cannot produce that result

because it cannot be carried out for technical or eco-

nomic reasons.

Conclusion.

CONCLUSION

For the above reasons the decision of the Court of

Appeals for the Third Circuit was eminently correct and

should be allowed to stand. The petition for certiorari

should be denied under the present circumstances.

Respectfully submitted,

Davip 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: February 27, 1976