Opposition — Edison Electric Institute v. Costle

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No. 80-649 od

In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

EDISON ELECTRIC INSTITUTE, ET AL.,

PETITIONERS

DouGLas M. CosTLE, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

} ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WapDeE H. McCres, Jr.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

JACQUES B. GELIN

KENNETH A. REICH

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

MICHELE BEIGEL CORASH

General Counsel

EARL SALO

Attorney

United States Environmental Protection Agency

Washington, D.C. 20460

Jn the Supreme Court of the Hnited States

OCTOBER TERM, 1980

No. 80-649

EDISON ELECTRIC INSTITUTE, ET AL.,

PETITIONERS

DouGLas M. CosTLe, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

QUESTIONS PRESENTED

1. Whether petitioners, having failed to file a timely peti-

tion for judicial review of certain regulations issued by the

Administrator of the Environmental Protection Agency

under the Clean Air Act, may obtain judicial review under

Section 307(b)(1) of the Act of a letter from EPA respond-

ing to petitioners’ request for clarification of the regula-

tions, where the letter simply refers them to EPA’s brief in

the court of appeals defending the regulations against a

timely challenge filed by other companies.

2. Whether, in the circumstances of this case, the court of

appeals’ dismissal of petitioners’ petition for review of

EPA's letter denied them due process.

TABLE OF CONTENTS

Page

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. TABLE OF AUTHORITIES

Cases:

Federal Trade Commission v. Atlantic

SINE Cis NT Os: Ok OO A 0 h'00 eK oo eens 6

Harrison v. PPG Industries, Inc.,

No. 78-1918 (May 27, 1980) ............05. 6, 7

Oljato Chapter of Navajo Tribe v. Train,

SEF EEE, Raa AD He cb bas debkd ous cs cease 6

Utah Power & Light v. EPA, 553 F. 2d

Pie ans WORE banca b4A Nd OOS Ras Vacs beter k bees 6

Statutes, rules and regulations:

Administrative Procedure Act, 5 U.S.C.

POW, ein 6 606 hoe ice wee ak Rens 7

. Clean Air Act, 42 U.S.C. (Supp. III) 7401

kn, UT ERR TERETE REE eT eee ]

Section 110, 42 U.S.C. (Supp. III) 7401 ..... l

Section 307(b)(1), 42 U.S.C. (Supp. IID

PTEMEEED eben 00 C646 Ok oad wae 4,5,7

Section 307(b)(2), 42 U.S.C. (Supp. III)

ST e's ia hob ns FRA eho bike ar 8

Section 319, 42 U.S.C. (Supp. III) 7619 ..... |

III

| PREVIOUS PAGE WAS BLANK |

Page

Statutes, rules and regulations—Continued:

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40 C.F.R. : -

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Miscellaneous:

43 Fed. Reg. (1978):

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i dheed bibcwh o vets een sedsnecee cnet 2

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OPINIONS BELOW

The orders of the court of appeals dismissing petitioners’

petition (Pet. App. 3) and denying petitioners’ suggestion

for rehearing en banc (id. at 4) were not accompanied by

opinions and are unreported.

JURISDICTION

The judgment of the court of appeals was entered on June

17, 1980 (Pet. App. 3). A petition for rehearing was denied

on July 22, 1980 (Pet. App. 4). The petition for a writ of

certiorari was filed on October 20, 1980. The jurisdiction of

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

STATEMENT

1. On May 10, 1979, the Environmental Protection

Agency issued final regulations (44 Fed. Reg. 27558 et seq.

(1979), codified in 40 C.F.R. Part 58, reprinted in part at

Pet. App. 70-91) prescribing reporting and monitoring

requirements relating to ambient air quality standards

under the Clean Air Act, 42 U.S.C. (Supp. III) 7401 et seq.

The regulations, which revoked existing reporting and

monitoring requirements in Part 51 of 40 C.F.R. (1978),

and which created a new Part 58, were promulgated pursu-

ant to Section 319 of the Act, 42 U.S.C. (Supp. III) 7619,

which required EPA to promulgate regulations establishing

uniform air quality monitoring criteria.

Ina ets 0 summary of the regulations as first pro-

posed, EPA explained (43 Fed. Reg. 34892 (1978)) that it

planned to revise “the requirements for ambient air quality

monitoring for purposes of the State implementation plans

(SIP’s) and for reporting air quality data to EPA * * *”

(emphasis added). State implementation plans are the pro-

grams that the states are required to establish in order to

assure compliance with the standards set by EPA for per-

missible levels of particular pollutants in the ambient air (42

U.S.C. (Supp. III) 7410). The EPA national primary

ambient air quality standard for sulfur dioxide specifies a

maximum 24-hour concentration of 365 micrograms per

cubic meter that is not to be exceeded more than once a

year. 40 C.F.R. 50.4. As petitioners note (Pet. 5-6), emission

control limits under state implementation plans may have

to be tightened if it appears that the prescribed standard has

been exceeded in a given year.

Appendix F, the portion of the new regulations (40

C.F.R. Part 58) at issue in this case, concerns monitoring

and reporting requirements for, inter alia, sulfur dioxide

levels (Pet. App. 87-88). The preamble discussion of

Appendix F in the proposed regulations announced that the

monitoring data received by EPA would be “used at the

national level to evaluate the overall effectiveness of [the]

States in achieving national ambient air quality standards

* * * "43 Fed. Reg. 34899 (1978). Both the proposed regu-

lations (id. at 34928 & n.3) and the final regulations (Pet.

App. 87-88, 90 n.3, 91) call for the annual submission of

“the highest and second highest 24-hour averages” of sulfur

dioxide concentrations, and they provide that where moni-

toring data for sulfur dioxide concentration levels are pro-

duced by continuous measurement methods, these averages

must be “[b]ased on nonoverlapping values computed ac-

cording to procedures described” in “Guidelines for the

Interpretation of Air Quality Standards” (Pet. App. 90n.3,

91). Continuous measurement methods produce running

hourly measurements of sulfur dioxide concentrations and

therefore a 24-hour average concentration can be computed

for each overlapping 24-hour period in a year rather than

only for those 24-hour periods measured from midnight to

midnight. The Guidelines explain how to compute nonover-

lapping 24-hour average values for sulfur dioxide, inter alia,

i.e. separate 24-hour average periods.! The regulations require

'The proposed regulations would have permitted the submission ofa

table of certain other data (numbers of 24-hour periods in which con-

centration levels were in a set of given ranges) on the basis of midnight-

to-midnight measurements (43 Fed. Reg. 34928 & n.4 (1978)), but this

was changed in the final regulations to require that even this tabular

states to designate certain air monitoring stations as

National Air Monitoring Stations (Pet. App. 72, 74) and to

use continuous monitoring methods (i.e., those capable of

producing hourly measurements) in such stations. 40

C.F.R. Part 58, App. C, 3.1.

2. On July 7, 1979, within 60 days of the promulgation of

these regulations, several companies challenged them by

filing petitions for review in the United States Court of

Appeals for the District of Columbia Circuit. In those

consolidated cases (PPG Industries, Inc., et al. v. Douglas

M. Costle, No. 79-1708 through 79-1711), which have been

briefed but are awaiting argument, PPG and its co-

petitioners contend that EPA has, in its new monitoring

regulations, changed the sulfur dioxide standard and that it

has done so without statutory authority and without follow-

ing proper procedures. They contend that the Agency has

done this by shifting from a system under which the stand-

ard would be violated only if the maximum concentration

level were exceeded in a given year during more than one

24-hour-period as measured from midnight to midnight toa

system under which the standard would be violated if the

maximum concentration level is exceeded during more than

one 24-hour period as measured from any given hour of the

day, so long as the 24-hour periods on which the violation is

based do not overlap.?

information be “{bJased on overlapping running averages for continu-

ous measurements” as described in the referenced “Guidelines” (Pet.

App. 88, 91 n.4). This made the requirements for the tabular informa-

tion consistent with the requirements for the measurements of the

highest and second-highest averages.

2EPA contends that the standard has not changed because it has

always provided that the maximum concentration levels for sulfur

dioxide could not be exceeded during more than one 24-hour period per

year. It asserts that the conversion of monitoring stations to continuous

monitoring and the calculation of running averages (averages for each

24-hour period during the year, measured from each successive hour)

merely enhances the ability of those enforcing the State implementation

plans to detect violations of the standard.

Petitioners in this case neither filed a petition to review

the regulations within the period prescribed by Section

307(b)({1) of the Act, 42 U.S.C. (Supp. IIT) 7607(b)(1), nor

filed a timely motion for leave to intervene under Rule 1 5(d)

of the Federal Rules of Appellate Procedure. On November

9, 1979, they wrote EPA, noting that some states and EPA

regional offices were using “running averages” to enforce

the ambient standard for sulfur dioxide; they requested

“clarification” assuring them that Appendix F isa reporting

requirement only and was not intended to measure com-

pliance with the ambient air quality standard for sulfur

dioxide (Pet. App. 132-140). EPA’s Office of General

Counsel responded in a letter dated March 18, 1980 (Pet.

App. 1-2), explaining that the Agency’s intent in the regula-

tions is set forth in its brief in PPG Industries.

3. On April 25, 1980, petitioners filed a petition for

review in the court below, invoking Section 307(b)(1) of the

Act, and asserting that they sought review of “40 C.F.R.

50.4 [the ambient air quality standard for sulfur dioxide]

and 40 C.F.R. Part 58 [the new monitoring regulations] as

interpreted by counsel for the Environmental Protection

Agency (“EPA”) through a letter dated March 18, 1980.”

Petitioners also filed a brief as amici curiae in PPG Indus-

tries.

EPA moved to dismiss the petition for review on the

ground that there was no agency action reviewable within

the terms of Section 307(b)(1) of the Act. After receiving

briefs +» this jurisdictional issue, the court of appeals dis-

missed the petition.

ARGUMENT

The dismissal of petitioners’ petition for review in the

court of appeals was consistent with the applicable jurisdic-

tional provisions of the Clean Air Act and conflicts with no

decisions of other courts of appeals or of this Court. In the

circumstances of this case, no substantial due process issue

is presented. Review by this Court is accordingly un-

warranted.

1. a. Petitioners enjoyed the right, under Section

307(b)(1) of the Clean Air Act, to file with the United States

Court of Appeals for the District of Columbia a petition for

review of EPA’s nationally applicable ambient air quality

monitoring regulations within 60 days of the date of the

notice of promulgation of the regulations. They also had the

right under Fed. R. App. P. 15(d) to intervene in the review

proceeding initiated by the timely petitions of other com-

panies seeking to challenge the regulations within 30 days

after the filing date of the petitions. Asserting that they were

uncertain of the significance of the regulations, petitioners

sought to avoid these limitations on challenges to the regu-

lations by (a) requesting “clarification” from the Admin-

istrator, (b) characterizing EPA’s response, which simply

referred to the Agency’s brief defending the regulations in

the court of appeals, as an official interpretation of the

regulations, and (c) filing a review petition with the court of

appeals nearly a year after the regulations in question were

promulgated, on the theory that the EPA letter of March

18, 1980, constituted “final agency action,” reviewable

under Section 307(b)(1) of the Act.

b. By dismissing the petition for review, the court of

appeals implicitly found that the March 18 letter was not

“final agency action” within the meaning of Section 307(b).

That determination is correct. The agency has issued no

official interpretation of the regulations because, in its view,

they are clear on their face. The brief in the court of appeals

simply reflects what the regulations already make plain—

that the prescribed monitoring procedures may be used to

determine whether primary ambient air quality standards

are being met under the state implementation plans. For

this reason, cases cited by petitioners (Pet. 15 n.22) for the

proposition that administrative agencies should construe

ambiguous regulations before a court is called upon to

review them are inapposite, and there is no occasion for this

Court to exercise its supervisory power, as petitioners urge

(Pet. 20-21), to direct the court of appeals to follow its own

precedents in this matter.

Petitioners are similarly incorrect in suggesting (Pet. 21-

22) that this Court’s decision in Harrison v. PPG Industries,

Inc., No. 78-1918 (May 27, 1980), governs this case. In

Harrison, the Court held that a final determination by a

Regional Administrator of EPA concerning the application

of “new source” performance standards to equipment in a

particular power generating facility was “final action of the

Administrator * * * whichis locally or regionally applica-

ble” within the meaning of Section 307(b)(1) of the Act. Slip

3 Federal Trade Commission v. Atlantic Richfield Co., 567 F. 2d 96

(D.C. Cir. 1977) involved an agency procedural rule which, in the

court's view, was unclear in its application to the case before the court.

In Oljato Chapter of Navajo Tribe v. Train, 515 F. 2d 654, 665-666

(D.C. Cir. 1975), the court held only that where a party contends that

new grounds have arisen for challenging an EPA performance standard

for new stationary sources of air pollution, EPA should first be asked to

evaluate the alleged new grounds to determine whether they warrant

changing the standard. Only if the Agency then rules that the new

information does not warrant a change of the standard should the court

review EPA's refusal to modify the standard. Finally, in Utah Power &

Light v. EPA, 553 F. 2d 215, 219 n.17 (D.C. Cir. 1977), the court of

appeals merely suggested in dictum that if an agency issued an interpre-

tive ruling that rendered a previously valid regulation invalid, the court

of appeals might have jurisdiction to consider a challenge to the regula-

tion filed after the prescribed time for challenges to regulations under

Section 307(b)(1) had expired. We do not quarrel with that principle,

but there is no new interpretation of any kind here.

We also note that the court below had the opportunity to resolve any

inconsistency between the dismissal of petitioners’ review petition and

those three opinions of the D.C. Circuit on which petitioners rely. The

denial of the petition for en banc rehearing—a petition in which peti-

tioners alleged such an inconsistency—suggests that the court of

appeals also believes those earlier cases to be distinguishable.

op. 1-2, 10. The parties agreed that the decision applying the

regulations was final agency action within the meaning of

the Administrative Procedure Act, 5 U.S.C. 551 et seq. (slip

op. 8); no such concession is appropriate here, since the

March 18 letter referred only to the Agency’s brief in the

court of appeals and that brief reflected only what the

Administrator had previously stated in his regulations.

which constituted EPA’s final action in the matter.

c. To be sure, petitioners contend that the regulations

were unclear and did not fairly apprise them of the necessity

of filing a petition for review. But this contention raises only

a narrow issue tied to the particular language involved; and

it is moreover an issue unlikely to arise again, since no

member of the affected industry could plausibly maintain in

the future that it was unaware of what the Administrator

meant by the language in question. The issue is thus not of

sufficient importance to merit review by this Court.

d. Weemphasize that we do not suggest that EPA would

be free to take positions in its briefs in court that effectively

amend its regulations, thereafter apply the regulations as

amended, and then contend that the amendment is insu-

lated from review because it is not Agency action. We

submit only that sucha case is not presented here, where the

regulations are not ambiguous and where they are the sub-

ject of review proceedings in the court of appeals.

2. Contrary to petitioners’ suggestion (Pet. 16-18), the

denial of their petition in the court below presents no sub-

stantial due process issue. Even assuming, contrary to our

submission, that the regulations in question were not so

plain as to put petitioners on notice that a state implementa-

tion plan’s compliance with ambient air quality standards

could be determined by the use of running averages, peti-

tioners have suffered no real prejudice. Petitioners contend

(Pet. 6, 7) that if the regulations are thus construed, they

should be regarded as effecting a change in the ambient air

quality standard for sulfur dioxide and should be set aside

on substantive and procedural grounds. Those very conten-

tions are now before the court below on the timely filed

petitions of PPG and its co-petitioners, and petitioners in

this case have submitted their views as amici curiae. Thus,

although petitioners might be precluded by Section

307(b)(2) of the Act, 42 U.S.C. (Supp. III) 7607(b)(2), from

seeking review of these regulations in any subsequent

enforcement proceedings for violations of emissions limits

imposed under a state implementation plan enforcing the

sulfur dioxide standard, it cannot fairly be said that peti-

tioners’ arguments against the regulations as an impermis-

sible modification of that standard have received no

judicial hearing.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, JR.