Opposition — Indianapolis Power & Light Co. v. United States Environmental Protection Agency

No. 79-691

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

INDIANAPOLIS POWER & LIGHT COMPANY, ET AL.,

PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

WapE H. McCrer, JR.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

RAYMOND N. ZAGONE

RONALD C. HAUSMANN

Attorneys

Department of Justice

Washington, D.C. 20530

RUDAK, JR., CLER |

Po a eee

te EE ae

In the Supreme Court of the United States

OCTOBER TERM. 1979

No. 79-69]

INDIANAPOLIS Power & LIGHT COMPANY. EL AL..

PETITIONERS

V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The order of the court of appeals (Pet. App. A2-Al1)

is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

August 2, 1979. The petition for a writ of certiorari was

filed on October 30, 1979. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the court of appeals properly affirmed the

designation by the Administrator of the Environmental

Protection Agency of Marion County, Indiana, as a

nonattainment area under Section 107(d) of the Clean

(1)

Ai Act, after a state trial court found that the state’s

submission of its recommended designation to the

Administrator did not comply with state law.!

STATEMENT

In the Clean Air Amendments of 1970 (Pub. L. No.

91-604, 84 Stat. 1676), Congress directed that the

national ambient air quality standards established under

Section 109, 42 U.S.C. (Supp. 1) 7409.2 be attained

throughout the country by mid-1975. See Train v.

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

and Union Electric Co. v. EPA, 427 U.S. 246 (1976).

However, in considering the 1977 amendments to the

Act, Congress became aware that those standards still

had not been achieved in many areas of the country.

This was attributed to inadequate restrictions for certain

sources of pollution, insufficient enforcement of other

restrictions and noncompliance by pollution sources. See

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 207-211

(1977).

As a result of the widespread failure to meet the

original statutory deadline, Congress, in the 1977

amendments, adopted a new regulatory approach. The

first step was to identify all areas where the air quality

‘Petitioners present two other questions (Pet. 3). which are

identical to the questions presented in the petition for a writ of

certiorari in United States Steel Corp. vy. United States Environmen-

tal Protection Agency, No. 79-486. For the reasons stated in our

brief in opposition in that case. those questions do not warrant

review by this Court. We are sending counsel for petitioners a eopy

of our brief in opposition in United States Steel.

“The Clean Air Act (formerly 42 U.S.C. 1857 ef seg.) is now

codified as 42 U.S.C. (Supp. 1) 7401 e7 seg. See Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685. In this brief.

citations will refer to the current codification of the Clean Air Act.

as amended.

was below the applicable standards and to designate

those areas as “nonattainment areas.” Section 107(d)(1),

42 U.S.C. (Supp. 1) 7407(d)(1). Each state was required

under Section 107(d)(I) to assess its air quality and to

submit a recommended list of area designations to the

Environmental Protection Agency (EPA) by December

5, 1977. Pursuant to Section 107(d)(2), the Administrator

of EPA was to review the information submitted by each

state agency and its recommended designations and

promulgate a final list. with any modifications he

deemed necessary, by February 3, 1978. For the

designated nonattainment areas, the 1977 amendments

require that each state adopt a revised implementation

plan imposing the additional pollution restrictions

needed to ensure attainment of the air quality standards

as expeditiously as possible. Sections 171-178, 42 U.S.C.

(Supp. 1) 7501-7508. Each state’s revised plan is subject

to EPA review and approval. Section 129(c) of Pub. L.

No. 95-95, 91 Stat. 750, 42 U.S.C. (Supp. 1) 7502 note.

On March 3, 1978, the Administrator published the

list of area designations for the entire country. 43 Fed.

Reg. 8962 (Pet. App. A52-A64). For the State of

Indiana, the Administrator specified 52 separate area

designations; he modified ten designations recommended

by the State: 43 Fed. Reg. 8992-8993 (1978). In

particular, the Administrator designated Marion County,

Indiana, as a nonattainment area for both the primary

and secondary sulfur dioxide standards (Pet. App. A63).

This designation followed the recommendation of the

Indiana Air Pollution Control Board, which based its

recommendation on an analysis of air quality in Marion

County performed by the technical staff of the Air

Pollution Control Division of the Indian@ State Board of

Health (id. at A3-A6).

The nonattainment designations were made immediate-

ly effective without prior notice or an Opportunity for

comment. See 5 U.S.C. 553(b) and (d).’ However. the

Administrator solicited public comment. on the

designations for 60 days and committed the agency to

revise the designations as appropriate in light of those

comments (Pet. App. A54).

Petitioners sought judicial review of the designations

in the court of appeals under Section 307(by 1). 42

U.S.C. (Supp. 1) 7607(b\1). Thereafter. the court

granted EPA’s motion to stay the proceedings on appeal

pending the agency's consideration of public comments

with regard to its nonattainment designations. On

October 5, 1978, the Administrator issued a revised list

of designated nonattainment areas. 43 Fed. Reg. 45993,

46007-46008 (Pet. App. A65-A73). The Administrator

determined that Marion County should be reclassified as

an attainment area for the secondary sulfur dioxide

standard, but, based on “[t]he overwhelming weight of

evidence” (consisting of air quality monitoring data and

dispersion modeling), he affirmed the nonattainment

designation for the primary sulfur dioxide standard (ic.

at A70).

The court of appeals affirmed EPA’s nonattainment

designation for Marion County (Pet. App. A2-A11). The

court rejected as untimely petitioners’ contention that the

Administrator’s designation was based on actions by the

‘In United States Steel Corporation vy. United States knvironmen-

tal Protection Agency, 605 F, 2d 283 (1979). the Seventh Circuit

held that EPA had “good cause” under the Administrative

Procedure Act to promulgate the designations as immediately

effective. The question concerning the propriety of that action. is

presented in the petition for a writ of certiorari in United States

Steel Corp. v. United States Environmental Protection Agency, No.

79-486. See note |, supra.

oe

——

state agency that did not comply with state procedural

requirements, finding that petitioners had failed to raise

that issue before EPA during the court-sanctioned

‘comment period (Pet. App. A6). In addition. the court

concluded that it was not bound by the determination of

a state trial court that the state agency's submission of its

recommended designation list to EPA did not comply

with Indiana law (id. at A7). Moreover. the court ruled

that the Administrator does not have authority under

Section 107(d) to change the state’s recommended

designation “merely because the Indiana Air Pollution

Control Board may not have complied strictly with state

procedural requirements” (/hid.). The court noted that if

the state later develops new technical information

necessitating a change in the Marion County designation,

the Administrator must evaluate the information and

change the designation if he agrees that such a change ts

warranted (fhid.).

ARGUMENT

Petitioners contend (Pet. 7-13) that the court. of

appeals was required to invalidate the Administrator's

designation of Marion County as a nonattainment area

because a state trial court has determined that the state

failed to comply with state law when it submitted its

recommended designation to the Administrator. The

court of appeals correctly rejected that contention. and

its decision, which does not conflict with any decision of

this Court or of the courts of appeals, does not warrant

review.

This Court has considered at length the history and

provisions of the Clean Air Act in Train v. Natural

Resources Defense Council. 421. U.S. 60 (1975). and

Union Electric Co. v. EPA, 427 U.S. 246 (1976). The

Court has found that the 1970 “Amendments reflect

congressional dissatisfaction with the progress of existing

air pollution programs and a determination to ‘tak[e] a

stick to the States. * ** in order to guarantee the

prompt attainment and maintenance of specified air

quality standards.” /d. at 249, quoting from Train vy.

Natural Resources Defense Council. supra, 421 U.S. at

64. The 1977 amendments reaffirm that congressional

goal and establish a new regulatory scheme to remedy

the past failure to achieve those standards. See pages 2-3,

supra.

1. In arguing (Pet. 7-9) that the decision below

disregards the statutory division of responsibilities

between EPA and the | states. petitioners fail to

distinguish between the promulgation of area

designations by the Administrator under Section 107(d)

and his limited review of state implementation plans

under Section 110(a)(2). Consequently, their reliance on

this Court’s decision in Union Electric Co. v. EPA.

supra, is misplaced. Under Section 110(a)(2), 42 U.S.C.

(Supp. 1) 7410(a)(2). each state was free to develop its

own implementation plan, and the Administrator was

required by law to approve any plan that met the

minimum conditions of the statute. See Train v. Natural

Resources Defense Council. supra, 421 U.S. at 65, 79:

Union Electric Co. v. EPA. supra, 427 U.S. at 264-265.

“So long as the national standards are met, the State

may select whatever mix of control devices it desires.”

Id. at 266. See Train v. Natural Resources Defense

Council, supra, 421 U.S. at 79. Thus. the Court in Union

Electric concluded that challenges to a state’s selection of

control devices based on economic or technological

infeasibility could not be presented to the Administrator

but instead could only be brought before the appropriate

State agency, or in state court.

This Court’s construction of Section 110(a)(2) in

Union Electric has no bearing on petitioners’ claim

pursuant to Section 107(d). Under Section 107(d)(1). the

States were required to submit to EPA a list identifying

nonattainment areas. In contrast to the narrow limits

placed on the Administrator's discretion in approving or

disapproving a state implementation plan under Section

110(a)(2), the Administrator had broad discretion under

Section 107(d)(2) to modify the state list “as he deem[ed]

necessary.” The Administrator, not the states. had the

ultimate responsibility for the designations, and they

were promulgated solely as a matter of federal law.

Moreover, the designation of an area as nonattainment

does not change the pollution control requirements of an

existing implementation plan: it only triggers a state’s

obligation to adopt and submit a revised implementation

plan. We have been informed that the State of Indiana

has submitted its revised plan to EPA. Petitioners have

every opportunity to raise pertinent objections to that

plan before the Administrator and appropriate state

authorities.+

2. Petitioners also contend (Pet. 10-13) that the court

of appeals’ refusal to follow a decision by a state trial

court violates principles of collateral estoppel and full

faith and credit. This contention is insubstantial. As the

court of appeals correctly concluded (Pet. App. A7).

state law cannot restrict the scope of the Administrator's

authority under Section 107(d) to promulgate nonattain-

ment designations. The Administrator is not empowered

‘This case does not raise. and hence we do not here address. the

question of what effect. if any, a state court decision overturning a

State implementation plan on procedural grounds would have on

federal enforcement of the substantive provisions of the plan

approved by EPA under Section 110(a)(2).

under Section I07(d) to reject a_ state's designation

recommendations on the ground that the state failed to

comply with its own procedural requirements — in

preparing and submitting the recommendations to EPA.

Thus, a finding of procedural irregularity under state law

is irrelevant to the validity of the Administrator's action

under the federal statute.

The nonattainment designation, moreover, is subject to

modification. As the court of appeals observed (Pet.

App. A7), if the State of Indiana develops new technical

information concerning air quality in Marion County,

and submits a proposed change in the nonattainment

designation for that area. the Administrator is required

under Section 107(d)(5) to review the submission and

make any appropriate changes in the area designation.

The possibility that the nonattainment designation may

be modified through administrative action provides an

additional reason for denying the instant petition.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapbdE H. McCrer. Jr.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

RAYMOND N. ZAGONE

RONALD C. HAUSMANN

Attorneys

DECEMBER 1979

DOJ-1979-12

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