Petition — Indiana-Kentucky Elect. Corp. v. U.S.E.P.A.

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Supreme Court of the United States “° *

i OctToBer TERM, 1976

—i6-5944

No.

INDIANA-KENTUCKY ELECTRIC CORPORATION,

INDIANA & MICHIGAN ELECTRIC COMPANY,

~~ STATEWIDE RURAL ELECTRIC COOPERATIVE,

INDIANAPOLIS POWER & LIGHT COMPANY,

NORTHERN INDIANA PUBLIC SERVICE COMPANY,

PUBLIC SERVICE COMPANY OF INDIANA, INC., anp

SOUTHERN INDIANA GAS AND ELECTRIC COMPANY,

Petitioners,

vs.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY,

SIERRA CLUB,

METROPOLITAN WASHINGTON COALITION FOR CLEAN

NEW MEXICO CITIZENS FOR CLEAN AIR AND WATER, anp

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Jerry P. BELKNAP

Jon D. NOLAND

BrYAN G. TABLER

1313 Merchants Bank Building

Indianapolis, Indiana 46204

Attorneys for Petitioners

a

BARNES, HiCKAM, PANTZER & Boyp

1313 Merchants Bank Building

ae’ PAGE

EE ee ee ee 2

Nee es niiiishdReene 2

i ck os willis 2

Statute and Regulations Involved.................... 3

RS ee 3

SE ee 5

Reasons for Granting the Writ ..................... 4

The Decision Below Decided Important Questions of

Federal Law Which Should Be Expressly Settled by

Ph adnneedencodedddcdde cactcceeds o6< 6

The First Question—Is Section 110(a)(2) the

Measure for State Implementation Plans? .... 6

The Second Question—The Procedure for EPA's

Revision of State Implementation Plans... .. .. 11

SD ncbeddnnsddnnendctcccncdccccecsivece: 15

Appendix I—Opinion of the Court of Appeals......... Al

Judgment of the Court of Appeals................... A47

Order of Court of Appeals for the Seventh Circuit. ...... AS3

Appendix Il—Relevant Portions of Clean Air Act, 42

le RY An bobetincscaccdcdecs cbdcce ASS

TABLE OF AUTHORITIES

Cases

Dayton Power & Light Co. v. EPA, 520 F. 2d 703 (6th

ey -Peens6e6deceeesbsenen ed cneaeeeaae 15

Hancock v. Train, U.S. _.., 44 U. S. L. W. 4767

Se Hs Bee ode cbacensbebscbbebaknabainnau 8

Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D. D. C.

1972), affd mem. D. C. Cir. No. 72-1528 (Nov.

1, 1972), affd by an equally divided vote sub nom.,

Fri. v. Sierra Club, 412 U. S. 541 (1973) ........ passim

Train v. Natural Resources Defense Council, 421 U. S. 60

Sebadendtseendenstecdunstandadimesvieb ule passim

Union Electric Co. v. EPA, 5 you .» 44 U. S.

ies We See CRD BR, BIGED ccccccvccecdseccetss 8,9

United States Statutes

Be Ue GB & Se Shc cetsve ic be ee eiibeccc 2

Clean Air Act

es Gee ie Ok > en acouncondedveceacs 13,14

ee Ge ee Ob Ge in nc cc dccccesscceec 14

SS Bae Se ie Oe Ge © ME cccccccccccecesoce 5

2S Cae Ge ee Oe Ge ie Os ecdccecccceecs passim

© OER, GO. BS. 8 BIG. occ cccccccccvccete 12

D> Ba Ge ee Gy Be eh be dc ccsicvcoscde 12

SB SED, GU. & G BOG, ccccccvctocecoscccs 12

§ 114, 42 U. S. ee 12

> Bae Ge ae Os Gy BH A ockcccccéccccccce 12

§ 307(b)(1), 42 U. S.C. § 1857h-5(b)(1)..... 3,4, 14

iii

Congressional Authority

House Comm. on Interstate and Foreign Commerce, Clean

Air Act Amendments of 1976, H. R. Rep. No. 94-1175,

94th Cong., 2nd Sess. 120 (1976)................. 7,8

The Federal Register

37 Fed. Reg. 23836 (Nov. 9, 1972)................. 4

38 Fed. Reg. 18986 (July 16, 1973)................ 4

39 Fed. Reg. 31000 (August 27, 1974) ........... 4

39 Fed. Reg. 42509 (Dec. 5, 1974)................ passim

39 Fed. Reg. 42513 (Dec. 5, 1974)......... octane’ 13

40 Fed. Reg. 2802 (Jan. 16, 1975)................. 3,4

40 Fed. Reg. 25004 (June 12, 1975)................ 3,4

40 Fed. Reg. 42011 (Sept. 10, 1975)................ 3,4

41 Fed. Reg. 35676 (Aug. 24, 1975) ............ 7

Miscellaneous

U. S. Bureau of the Census, Statistical Abstract of the

United States: 1975 (96th ed.) Washington, D. C.,

WP ME MP Ob eacncndcccdccccdococeceeéccece 7

= Tt) eS | oe oe

Supreme Court of the United States

Octoser Term, 1976

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

This petition is filed on behalf of seven electric utility com-

panies which own, operate, and from time to time construct or

modify coal-fired steam electric generating stations in the State

of Indiana. The petitioning utilities are: Indiana-Kentucky

Electric Corporation, Indiana & Michigan Electric Company,

Indiana Statewide Rural Electric Cooperative, Inc., Indianapolis

Power & Light Company, Northern Indiana Public Service Com-

pany, Public Service Company of Indiana, Inc., and Southern

Indiana Gas and Electric Company.

2

Respondents are the U. S. Environmental Protection Agency

which issued the regulations reviewed below, Sierra Club, Metro-

politan Washington Coalition for Clean Air, New Mexico

Citizens for Clean Air and Water, and Steven Winter. The

latter four parties intervencd helow as petitioners for review

of the regulations.

The petitioners pray that a Writ of Certiorari issue to review

the judgment of the Court of Appeals for the District of

Columbia Circuit entered in the above cause on August 2,

1976.

OPINIONS BELOW

The opinion of the Court of Appeals for the District of

Columbia Circuit has not yet been officially reported, but is

unofficially reported at 9 ERC 1129, and is included herein

at Appendix 1

The order of the Court of Appeals for the Seventh Circuit

transferring petitioners’ review proceeding is not reported, but

is set forth in Appendix I at AS3-A54.

The judgment of the Court of Appeals was entered on August

2, 1976, and is set forth at Appendix I, A47-A52. The juris-

diction of this Court is invoked under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED

1. Whether State implementation plans which meet the

eight criteria of Clean Air Act Section 110(a)(2) are also re-

quired by the Clean Air Act to prohibit significant deterioration

of air quality. z

3

2. Assuming plans must prohibit significant deterioration,

whether the Environmental Protection Agency may, under

Clean Air Act Sections 110(c) and 110(d), promulgate identical

regulations revising all 55 implementation plans without accord-

ing the States the opportunity to develop their own plan revisions

and without public hearings within the States.

A subsidiary question is whether petitioner Indiana electric

utilities are entitled to have revisions to the Indiana implementa-

tion plan so dictated reviewed by the Court of Appeals for the

Seventh Circuit as provided by Section 307(b)(1) of the Clean

Air Act.

STATUTE AND REGULATIONS INVOLVED

The provisions of the Clean Air Act Amendments of 1970,

42 U. S. C. §§ 1857 ef seq., primarily involved are set forth

in Appendix II hereto.

The regulations under review, 40 C. F. R. §§ 52.01(d),(f)

and 52.21 (1975), as amended, were promulgated by the U. S.

Environmental Protection Agency as amendments to all state

implementation plans under the Clean Air Act. They were

published in the Federal Register, together with an explanatory

preamble, on December 5, 1974 (39 F. R. 42509), and were

revised on January 16, 1975 (40 F. R. 2802), June 12, 1975

(40 F. R. 25004) and September 10, 1975 (40 F. R. 42011).

The regulations thus promulgated are set forth as Appendix III

hereto.

STATEMENT OF THE CASE.

This case follows in the wake of the Court's four-to-four

division three years ago in Fri v. Sierra Club.‘ The incon-

clusiveness of the Court's action there left in force a district

i

, Club v. 253 (D. D.C. 1972),

i ae. Se (D.C. Cir. ), off'd by

. Sierra Club, 412 U. S$. 541 (1973).

4

Court of Appeals for the District of Columbia Circuit. Pursuant

to that order, the Administrator of the Environmental Protection

Agency (EPA) determined that the implementation plans of

every State, including Indiana, were defective to the extent they

failed to prohibit “significant deterioration” of air quality in

areas where the air-was less polluted than allowea by national

ambient air quality standards promulgated under the Act.”

After proposing several alternative plans for preventing

significant deterioration® and holding public hearings at five

sites* across the country—none in Indiana—EPA promulgated

final regulations at 39 Fed. Reg. 42509 er seq. (Dec. 5, 1974).

The regulations were incorporated as revisions into the im-

plementation plans of every State, despite the lack of public

hearings within Indiana or nine-tenths of the States and without

regard to the prior content of the implementation plans affected.*

Petitioners sought to have the regulations affecting Indiana

reviewed by the Court of Appeals for the Seventh Circuit as

required by Clean Air Act Section 307(b)(1).* Over their

objection, that review proceeding was transferred to the Court

of Appeals for the District of Columbia Circuit and consolidated

with thirteen other petitions for review filed in the various

judicial circuits. On August 2, 1976, a panel of the District of

Columbia Circuit rendered its decision upholding the regulations

in every respect.

2. 37 Fed. Reg. 23836-37 (Nov. 9, 1972). The order cautioned

that some of the plans thes disapproved sight later % Oe

Scanition of oop der we delaiica EPA Wihota & todd make

tte

3. 38 Fed. 18986 et seq. (July 16, 1973); 39 Fed. Reg.

31000 (Aug. 27, 1974).

4. Hearings in Atlanta, Dallas, Denver, San Francisco

and Washington, D’ C., 39 Fed. Reg. 31000 (Aug. 27, 1974).

5. 40 C. F. ray y amendments were promul-

Chane 2197 Fed. Reg. 2802 (Jan. 16, 975); 40 Fed. Reg 25004

June | “ey Hy tr eae ee ).

6. 42 U.S.C. § 1857h-5S(b)(1).

The Regulations

The significant deterioration regulations apply to all areas

of the country where concentrations of sulfur dioxide or particu-

late matter are less than allowed by the national secondary

ambient air quality standards established for those pollutants

under Section 109(b) of the Act.’ For such areas, the regula-

in ambient pollutant concentrations to be allowed as a result of

economic growth. In Class I areas, “practically any” increase in

ambient levels of the two pollutants, and thus practically any

economic growth, is prohibited." In Class II areas, somewhat

larger increases in the levels of those pollutants are allowed, so

that what EPA deems “moderate well-controlled growth” is

possible. In Class III areas, pollutant levels may reach the na-

tional standards.’ Thus, an increase in ambient pollutant con-

centration which exceeds the allowable increment for an area

constitutes “significant deterioration” of air quality in the area.

All clean air areas are initially designated Class II."° The

regulations set forth procedures by which, subject to numerous

conditions a State may propose, and EPA may approve, redes-

ignation of an area to another Class. Among the prerequisites

is a determination by EPA of the adequacy of the State’s con-

sideration of the following factors:

upon the area being proposed for redesig-

Soe ad ae ie ee ee (3) any im-

pacts of such proposed redesignation upon regional or

national interests.”

7. 42 U.S.C. § 1857c-4(b).

8. 39 Fed. Reg. 42510 (Dec. 5, 1974).

9. Id.

10. 40 C. F. R. §52.21(c)(3).

11. 40C. F. R. § 52.21(c)(3)(ii)(d).

Preconstruction review is the primary means of preventing

breach of the allowable increments for an area. It is required

for nineteen specified types of stationary sources of sulfur oxides

or particulate matter,’ and requires a determination by EPA

(or a State authorized to perform the function) that emissions

from the new source, together with emissions from all other

sources (commercial, residential, industrial), will not violate

the significant deterioration increments applicable to that area,

or “any other area.”"* By referring to the effects of increments

upon “any other area,” the regulations thus impose a “shadow

effects” rule that extends a zone’s increment ceilings far beyond

the boundaries of the zone itself. For most areas of the Nation,

for example, EPA has suggested that a Class I inhibition could

stretch 60 to 100 miles into a neighboring Class II or III area.

39 Fed. Reg. 42513 (Dec. 5, 1974). In addition, any such

source is required to meet an emission limit, to be specified by

the Administrator, which would result from application of the

“bes: available control technology” for sulfur dioxide and par-

ticulate matter. 40 C. F. R. § 52.21(d) (2) (ii).

REASON FOR GRANTING THE WRIT

The Decision Below Decided Important Questions of Federal

Law Which Should Be Expressly Settled by This Court.

The First Question—Is Section 110(a)(2) the Measure for State

Implementation Plans?

The first question presented by this petition—whether the

Clean Air Act requires that implementation plans prevent

significant deterioration—was determined to be in need of

settlement by this Court nearly four years ago when certiorari

was granted in Ruekelshaus v. Sierra Club, 409 U. §, 1124

(1973). However, with only eight members participating, the

Court was unable to decide the question, and the lower court's

12, 40C. F.R. § 52.21(d).

13. 40 C, F. R. § 52.21(d)(2)(i).

7

opinion was affirmed ex necessitate by an equally divided Court

sub nom. Fri v. Sierra Club, 412 U. S. 541 (1973).

The question is no less important today and should be settled

by this Court.

The regulations at issue in fact place under several new levels

of political and administrative control the economic develop-

ment of the vast bulk of the land in the United States. Estimates

vary as to the proportion of the country subject to the regula-

tions. Petitioners’ home state of Indiana, however, provides a

quite conservative illustration, for only twelve states occupy

less land,'* but in terms of dollar value added by manufacturing,

Indiana is the tenth most industrialized state.’ The State, thus,

has a relatively large number of pollution sources situated in a

relatively small land area. EPA's recent action on Indiana's

revised implementation plan strategy for sulfur dioxide approved

classification of 85 of its 92 counties (or roughly 92% of its

area) as having ambient sulfur dioxide levels less than allowed

by the national secondary standards.'* Thus, the decision below

has subjected to Federal control the economic development and

land use planning of over 90% of the land mass of this highly

industrialized State.

The U. S. House of Representatives recently passed a bill

which, if enacted as an amendment to the Clean Air Act, would

have established a classification scheme identical to the one im-

posed by the regulations at hand, as shown by the following

description:

Initially most areas which are cleaner than the national

ambient air quality standards with respect to any pollutant

would be classified as Class II . . . Areas where air quality

is worse than those minimum Federal standards would not

be classified at all and would not be affected by this section

14, U. S. Bureau of the Census, Statistical Abstract of the

United States, 1975 (96th ed.) Washington, D. C., 1975, at 176.

1S. Id., 749.

16. 41 Fed. Reg. 35676-77 (Aug. 24, 1976).

since the goal in these areas is to attain and maintain the

minimum Federal ambient standards.'" .

The committee report gave the following estimate of the

proportion of the country subject to the bill’s significant deterio-

ration provisions:

First, it must be re-emphasized that more than 98% of

the country is initially designated Class II."*

Thus, the question whether the Clean Air Act requires state

plans to contain non-degradation provisions may fairly be viewed

as the question whether land use planning of more than 90% of

the United States is subject to Federal administrative control.

The overriding importance of this question is self-evident.

Since dividing equally on the question of significant deterio-

ration in Fri v. Sierra Club,"* the Court has interpreted the Clean

Air Act three times: Union Electric Co. v. EPA, ......... U. S.

km » 44U.S. L. W. 5060 (June 25, 1976); Hancock v. Train,

cnet U.S. ........, 44 U. S§. L. W. 4767 (June 7, 1976); Train v.

Natural Resources Defense Council, 421 U. S$. 60 (1975).

The holdings in Union Electric and Train vy. NRDC appear

irreconcilable with the decision below. The Court held in

Union Electric that EPA may not disapprove a State imple-

mentation plan on the basis of factors not among the eight

criteria listed in Section 110(a)(2):*

This approach is apparent on the face of § 110(a) (2).

The provision sets out eight criteria that an implementation

plan must satisfy, and provides that if these criteria are met

and if the plan was adopted after reasonable notice and hear-

ing, the Administrator “shall approve” the proposed state

plan. The mandatory “shall” makes it quite clear that the

17. House Comm. on Interstate and —— Commerce, Clean

Air Act Amendments of 1976, H. R. Rep. No. 94-1175, 94th Cong.,

2d Sess. 120 (1976).

18. Id., 149.

19. 412 U. S. 541 (1973).

20. 42 U.S. C. 1857c-5(a)(2).

9

Administrator is not to be concerned with factors other than

those specified, Train v. NRDC, 421 U. S. at 71 n.11,

79, and none of the eight factors appears to permit con-

sideration of technological or economic infeasibility. None-

theless, if a basis is to be found for allowing the Admin-

istrator to consider such claims, it must be among the

eight criteria, and so it is here that the argument is

focused.

The major premise of the decision below, however, is pre-

cisely contrary to the quoted language and to the holding of

Union Electric. That premise is that EPA shall not approve

any implementation plan except upon determining that it meets

a ninth criterion, implementation of a “Judicially-created

requirement of nondeterioration” (App. I, A15).

While it appears that Union Electric should have controlled

the proceeding below, the Court of Appeals avoided it on the

argument that the precise issue of significant deterioration was

not before this Court in that case( App. I, A24). This raises

a question of Federal law, the extreme importance of which is

belied by the obviousness of its answer: When Congress has

written a statute which says EPA shall approve implementation

plans which meet eight specified criteria, and the Supreme

Court has construed the statute to mean that EPA shall approve,

and cannot disapprove, implementation plans which meet the

same eight criteria, should an additional criterion be added by

judicial legislation and made the basis for disapproving State

plans?

In Train v. Natural Resources Defense Council, 421 U. S.

60 (1975), the Court held that under Section 110(a)(3) of

the Clean Air Act, EPA is required to “approve any revision

of a state implementation plan,” including the grant of variances

to individual pollution sources, so long as the revision leaves the

plan in conformity with the eight criteria in Section 110(a) (2)

21. Union Electric Co. v. EPA, supra, 44 U. S. L. W. at 5063

(footnote omitted).

10

and is adopted after public notice and hearing. 421 U. S. 60,

at 80, 99. The decision below concedes that significant dete-

rioraton is not expressly included in Section 110 (App. I, A39),

but flatly contradicts the holding of Train on the basis that this

Court’s language does not mean what it says (App. I, A23-A24).

It approves EPA-imposed regulations which effectively prohibit

the States from revising their plans or granting variances to

accommodate new or modified sources in areas where national

ambient air quality standards are met unless a host of new

Federal requirements having no relation to Section 110(a) (2)

are met.

The holding in Train was based upon the Court's analysis

to be met. Under § 110(a)(2), the Agency is required to

approve a state plan which provides for the timely attain-

ment and subsequent maintenance of ambient air stand-

tations if they are part of a plan h satisfies the

ards of § 110(a)(2), and the

promulgate a specific plan of its own only if a State

is

at liberty to adopt whatever mix of emission limitations it

deems best suited to its particular situation.”

22. 421 U. S. 60, 79 (1975), (footnote omitted; emphasis in

Original ) .

11

The decision below conflicts with the scheme set forth in this

passage in the following respects:

1. It upholds EPA’s promulgation of emission limita-

and only where not necessary to meet national standards.

2. It upholds EPA action devising and promulgating

a specific plan of its own for 55 States, districts and terri-

tories on grounds other than incongruence of their plans

with Section 110(a) (2).

The Second Question—The Procedure for EPA’s Revision of

) State Implementation Plans.

The second question presented by this petition is whether

under Sections 110(c) and 110(d)** EPA may usurp the right

of the States to develop their own implementation plans by pro-

mulgating requirements that plans prevent significant deterio-

ration and on the same day imposing revisions of all 55 plans

to satisfy the newly-defined requirements, all without hearings

within the States.

In addition to the conflicts with the Train decision set forth

above, the decision of the Court of Appeals, in upholding the

procedure followed by EPA, is in further conflict with Train,

as follows:

1. It upholds EPA’s assumption of a primary, instead

of a secondary, role in devising specific emission limita-

tions for major sources in over 90% of the country.

2. It upholds EPA action devising and promulgating its

own plans for 55 states, districts and territories without

observing the procedures of Section 110(c), which the

Court cited as applicable.

This question goes to the very heart of what an implementa-

tion plan is, how an implementation plan comes into being,

and how one may be enforced. The statutory definition is in

Section 110(d):

23. 42 U.S.C. §§ 1857c-S(c) and 1857c-5(d), respectively.

12

_ For purposes of this Act, an applicable implementation

plan is the implementation plan, or most recent revision

thereof, which has been approved under subsection (a)

or promulgated under subsection (c) and which imple-

ments a national primary or secondary ambient air quality

standard in a State.

This is a definition of fundamental importance to the func-

tioning of the statutory scheme because according to Section

113, with minor exceptions, EPA is without power under the

Clean Air Act to enforce anything but an “applicable imple-

mentation plan.”** It is clear that the regulations at issue do

not “implement{ ] a national primary or secondary ambient air

quality standard . . .” and were not “approved under subsection

(a)” of Section 110. It is obvious also that the regulations were

not “promulgated under subsection (c)” of Section 110. That

provision restricts EPA’s authority to propose and promulgate

revisions of State plans to three distinct circumstances: (1) a

State’s failure to submit a plan to implement a primary or sec-

ondary standard by the statutory deadline; (2) nonconformity

of a plan with the requirements of Section 110; (3) a State’s

failure to revise a plan within 60 days of EPA’s notice that the

plan should be revised to achieve new primary or secondary

standards or should achieve standards more quickly. None of

these circumstances was the basis of the December, 1974, regu-

lations, as the opinion below acknowledges (App. I, A38-

A39).

Section 110(c) also requires that a State have the oppor-

tunity to cure its plan of any deficiencies EPA determines to

:

i

f

7

C. § 1857c-9; and the anapeliall author-

, he iemection ent provisions

) USC. § 1857e-10

13

raneously with promulgating the definition of significant deterio-

ration, EPA issued its disapproval of all plans for failing to

prevent significant deterioration. On the same day it revised

each plan with curative regulations, thereby violating Section

110(c) by not holding public hearings in 46 of the affected

States.”

The significant deterioration regulations then raise a distinct

problem: Of the four attributes which define a regulatory pro-

vision as part of an applicable implementation plan, the regu-

lations possess not one. The Supreme Court has explicitly

noted that the characteristics set forth in Section 110(d), and

particularly the characteristic of implementing national stand-

ards, are essential to the identity of an implementation plan:

An exception which does jeopardize national standards,

on the other hand, cannot be a revision because it would

deprive the revised plan of a characteristic without which

it cannot under the Act be an applicable plan. See

§ 110(d) which defines “applicable implementation plan”

as the “implementation plan, or most recent revision there-

of, which has been approved under [§ 110(a)(2)]. .. .”%

Thus, the question is whether an implementation plan is what

it appears to the naked eye to be, or whether the gloss of

legislative history actually operates to contradict the Supreme

Court and to amend Section 110(d) to read:

For the purposes of this Act, an applicable implementa-

tion plan is the implementation plan, or most recent

revision thereof, which has been approved under

subsection (a), or promulgated under subsection (c) or

promulgated under the authority implicit in Section 101(b)

(1) pursuant to such procedure as the Administrator shall

employ and which implements a national primary or

secondary ambient air quality standard in a State or which

implements a prohibition against the significant deteriora-

tion of air quality in areas of a State where primary and

secondary ambient air quality standards are met.

25. 39 Fed. Reg. 42509 et seg. (Dec. 5, 1974).

a Train v. Natural Resources Defense Council, 421 U. S. 60,

90 n.25 (1975) (emphasis in original).

14

Whether such a fundamental rewriting of the Clean Air Act

should be allowed to stand is an important question of Federal

law which should be settled by this Court.

Judicial review of the significant deterioration regulations has

also been at odds with the statutory scheme and has contributed

to EPA’s usurpation of the function of the States. The judicial

review provision of the Clean Air Act reads in pertinent part:

A petition for review of the Administrator’s action in

approving or promulgating any implementation plan under

section 110 or section 111(d), or his action under section

119(c)(2)(A), (B) or (C) or under regulations there-

under, may be filed only in the United States Court of

Appeals for the appropriate circuit. Any such petition shall

be filed within 30 days from the date of such promulgation,

approval, or action or after such date if such petition is

based solely on grounds arising after such 30th day.”

Petitioners contend, as they have since originally filing their

petition for review in the Seventh Circuit, that the obvious

meaning of this provision is that review of EPA action on a

State implementation plan be performed “only” by the Court

of Appeals for the Circuit in which the affected State lies.

This is consonant with the repeated injunction in Section 110

that implementation plans may not be adopted or revised with-

out a public hearing within the State, and that each plan is to be

reviewed separately by EPA. It is consistent also with the con-

gressional finding in Section 101(a)(3)," and direction in

Section 107(a),” that air pollution control is the primary

responsibility of the States and local governments. In the

proceeding below Petitioners made substantial claims that, prior

to EPA’s disapproving and revising it, the Indiana implemen-

tation plan contained measures to prevent degradation of the

State’s clean air, and that differences between Indiana’s plan and

the one EPA devised for the purpose were not legal grounds for

27. Section 307(b)(1), 42 U. S. C. § 1857h-5(b) (1).

28. 42 U. S.C. § 1857(a)(3).

29. 42U.S.C. § 1857c-2.

15

disapproving the State’s plan. The court below, faced with

arguments as to most of the pl4ns in the Nation, did not review

those claims. Petitioners submit that avoidance of such inade-

to mean that every petitioner for review should have to guess

which circuit is the most appropriate, Dayton Power & Light

Co. v. EPA, 520 F. 2d 703 (6th Cir. 1975) notwithstanding.

The decision below is in conflict with applicable decisions

of this Court and, if allowed to stand, will have worked a

major restructuring of State-Federal relationships and will have

effectively rewritten a major piece of Federal legislation.

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Court of Appeals for the

District of Columbia Circuit.

Respectfully submitted,

Jerry P. BELKNAP

Jon D. NOLAND

Bryan G. TABLER

BARNES, HickaM, PANTzer & Boyp

1313 Merchants Bank Building

Indianapolis, Indiana 46204

Attorneys for Petitioners

A. Josern Dowp

AMERICAN ELECTRIC POWER

SERVICE CORPORATION

2 Broadway

New York, New York 10004

LivinosTon, Di_pine, Haynie & YODER

425 Lincoln Bank Tower

Fort Wayne, Indiana 46802

Parr, RICHEY, OBREMSKEY, PEDERSEN

& MorTON

Union Federal Savings and Loan Building

Lebanon, Indiana 46052