Record and brief — West Virginia ex rel. Air Pollution Control Commission v. Gorsuch

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

UOHad

ee yoreme Count use|

81-1361 | tube

pA es Gee

MExaNvE) uU. STEVAS,

No. 81-

Supreme Court of The United States

Octoser Term, 1980

State OF West Vircinia, Ex Ret.

Arr PoLt_utTion Controt COMMISSION,

Petitioner-Appellant,

Ann Gorsucn, ADMINISTRATOR,

Unitep States ENVIRONMENTAL

PROTECTION AGENCY

Respondent-Appellee.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Nicuo.as W. JoHnson

Deputy Attorney General

Counsel of Record

Ronan A. SHIPLEY

Assistant Attorney General

Counsel for Appellant

Office of Attorney General

State of West Virginia

State Capitol Building

Building 1, Room E-26

Charleston, West Virginia 25305

Telephone (304) 348-0546

January 18, 1982

8 ah, er D sme Quauiry omees, CHamiesroON. &

QUESTIONS PRESENTED

l. Does the United States Court of

Appeals for the Third Circuit, or any

other United States Court of Appeals, have

jurisdiction under the administrative

review provisions of the Clean Air Act, 42

U.S.C. § 7607(b) (1), to review an action

by the Administrator of the United States

Environmental Protection Agency concerning

revisions to a State Implementation Plan

(SIP), 42 U.S.C. § 7410, for a State not

located within the Court's geographical

composition, 28 U.S.C. § 41?

2 Is it an arbitrary action, and

therefore subject to reversal or remand,

for the United States Environmental Pro-

tection Agency to withdraw its approval of

State Implementation Plan revisions, when

the evidence, based on EPA's own inves-

tigation, overwhelmingly demonstrates that

such State Implementation Plan assures

attainment and maintenance of the national

ambient air quality standards? 42 U.S.C. §

7410 (a) (2) (B).

3. Can the United States Environ-

mental Protection Agency reverse its

-i-

previous administrative action approving a

State Implementation Plan without stating

valid reasons for such reversal when its

own rulemaking rationale documents state

that failure to approve the SIP is an un-

reasonable action because the SIP assures

attainment and maintenance of the national

ambient air quality standards?

4. Which sovereign, the State of

West Virginia or the Federal governnment,

has the primary responsibility to decide

the safety factor and degree of confidence

to be given a mathematical model pre-

dicting an artificial violation of air

quality standards within West Virginia?

42 U.S.C. § 7407.

S. Is it an arbitrary action, and

therefore subject to reversal or remand,

for Regional Offices of the United States

Environmental Protection Agency to apply

modelling methods for predicting air qual-

ity which are not reasonably uniform in

criteria, procedures or policies?

42 U.S.C. § 7601.

-ii-

Additional Parties to Case Below

Appalachian Power Company

Commonwealth of Pennsylvania

Council of Senior West Virgin-

ians

Group Against Smog and Pollu-

tion, Inc.

Monongahela Power Company

Monongahela County Citizens for

Clean Air

Mountain Community Union

Ohio Power Company

West Virginia Citizens Action

Group, Inc.

West Virginia Highlands Conser-

vancy, Inc.

-iii-

TABLE OF CONTENTS

QUESTIONS PRESENTED ......-.-

ADDITIONAL PARTIES TO CASE BELOW .

TABLE OF CONTENTS .... +e eee

INDEX TO AUTHORITIES .....2.-s

OPINIONS AND DECISIONS BELOW ...

JURISDICTION .. . © «© © © «© «© © «

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS INVOLVED ......

STATEMENT OF THE CASE “a oe

Summary “a of Oe ee ae oe a oe

Statement of Facts .....e.«-.

ARGUMENT IN FAVOR OF GRANTING

WRIT OF CERTIORARI ....+ 2.

Summary oe ek. 6s ee Coe te a

Jurisdictional Issue ......

EPA's Reversal Without Reason in

the Spite of Contrary Overwhelming

ee ee ee

Which Sovereign Has Primary

Responsibility .....-«+«e-.

EPA Regional Offices Must Treat

States Similarly .....ee-.

CONCLU Ss I ON om . . . . . . . . . . .

iii

APPENDIX A. . «© «© © © © © © © © «

APPENDIX B — . 7 . >. >. *. * >. — * . * 39

APPENDIX Cc >. . . >. .* . . * >. . >. . >. 41

APPENDIX D . 7 . — . . .* . * . * . . 48

ai re ae oe 52

INDEX TO AUTHORITIES

Atchison, Topeka & S.F.R. Co. v.

wichita Board of Trade, 412

— - 800 (1972) . 7 . . . . . . . 29

Cleveland Electric Illuminatin

Co. Vv. EPA, 572 F.2d 1150

foun car. 2970) w we eee eo os Bo SB

Cincinnati Gas & Electric Co. v.

EPA, 578 F.2d0 1150 (6th Cir.,

1978); cert. denied 434 U.S.

1114 (1979) eeereececto Oe oe

District of Columbia v. Train,

533 F.2d 1259 (D. Cc. Cir.

1976) . . + 7 7 . . . . . . . 23

Environmental Study and Protection

v. P.A.C., 464 F.Supp. 143

(D. Conn. 1978) everett se 31

Harrison v. PPG Industries, 446 U.S.

0) - * > * * *. >. . . 25

NRDC v. EPA, 465 F.2d 492 (lst Cir.,

1972) 7 . 7 7 7 . . 7 . _ -23,35,36

NRDC v. EPA, 475 F.2d 968 (D. C. Cir.

1973) . . . 7 . . . 7 . . . . 23,26

-V =

Panhandle Eastern Pipeline Co.v.

U.S.

) al * .

Peabody Coal Co. v. EPA,

156 (8th Cir. 1975)

Secretary of Agriculture v. United

State of Connecticut v.

States,

U.S.

n r.

EPA,

State of Texas v. EPA, 499 F.2d

th Cir. 1976)

522 F.2d

Train v. NRDC, 421 U.S. 60 (1975)

Union Electric Co. v. EPA,

U.S.

STATUTES

U.S.C.

“za A BD HHH HHA

2101 (c) °

2112 (a) °

7407 (a) °

7410 (a) (1)

7410 (a) (2) (B)

7410 (a) (3) (A)

7601 °

7607(b) (1).

7607 (da) (6) (A)

427

F.P.C,

~27

. 24,28

— . 29

. _ 24

>» Se

. . 33

—

— 2

_ 10

i 3,38

. 7 4

_ _ 5

— 5

- « 6,34

.7,25,26

, 9,29

Federal Registers

43 Fed. Reg. 52239 (November 9, 1978). . 2

44 Fed. Reg. 64439 (November 7, 1979). . 2

45 Fed. Reg. 9994 (February 14, 1980). .20

45 Fed. Reg. 74478 (November 10, 1980) . 2

Legislative Histories

Senate Report No. 91-1196, 9lst

Cong., 2d Sess., 41 (1970) ..... 25

H.R. Rep. No. 95-294, 95th Cong.,

lst Sess., reprinted in 1977

U.S. Code Congressional and

Administrative News ..... - 26,30,34

-vii-

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

STATE OF WEST VIRGINIA, EX REL.

AIR POLLUTION CONTROL COMMISSION,

Petitioners,

Vv.

ANN GORSUCH, Administrator, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

The State of West Virginia on behalf

of its Air Pollution Control Commission

hereby petitions for a Writ of Certiorari

to the United States Court of Appeals for

the Third Circuit for review of a judgment

order entered by that Court in the above

entitled case on issues of national impor-

tance, decided in conflict with other Cir-

cuit Courts and upon which the Supreme

Court must rule.

OPINIONS AND DECISIONS

BELOW

No official court opinions are avail-

able in this case. The text of the

judgment order denying our petition to the

United States Court of Appeals for the

Third Circuit is contained in Appendix A.

The denial of our motion for rehearing is

Appendix B.

The administrative decisions are pub-

lished at the following locations:

A. Final Rule Approving West Vir-

ginia's State Implementation

Plan, 43 Fed. Reg. 52239

(November 9, 1978). Appendix C.

B. Proposed Rule Re-Approving West

Virginia's State Implementation

Plan, 44 Fed. Reg. 64439 (Novem-

ber 7, 1979). Appendix D.

Cc. Final Rule Disapproving In Part

West Virginia's State Implemen-

tation Plan, 45 Fed. Reg. 74478

(November 10, 1980). Appendix E.

JURISDICTION

The Supreme Court's jurisdiction is

based on 28 U.S.C. § 2101(c) and Rules of

the Supreme Court of the United States,

Rule 20.4 (1980).

We seek review of an order of the

United States Court of Appeals for the

Third Circuit dated September 23, 1981,

denying our petition for review of an ac-

tion by the Administrator of the United

States Environmental Protection Agency.

Our request for rehearing was denied on

October 21, 1981.

CONSTITUTIONAL PROVISIONS

STATUTES AND REGULATIONS INVOLVED

(1) Section 107(a) of the Clean Air

Act, 42 U.S.C. § 7407(a), states:

"§7407. Air quality control re-

gions.

"Responsibility of each State

for air quality; submission of

implementation plan

"(a) Each State shall have the

primary responsibility for assuring

air quality within the entire geo-

graphic area comprising each State

by submitting an implementation plan

plan for such State which will spec-

ify the manner in which national pri-

mary and secondary ambient air qual-

ity standard will be achieved and

maintained within each air quality

control region in such State."

(2) Section 110(a)(1), (2)(B) and

(3) (A) of the Clean Air Act, 42 U.S.C. §

7410(a) (1), 2(b) and 3(A) states:

"§7410. State implementation plans

for national primary and secon-

dary ambient air quality stan-

dards

Adoption of plan by State; submission

to Administrator; control of plan;

revision; new sources; indirect

source review program; supplemental

or intermittent control systems

"(a) (1) Each State shall, after

reasonable notice and public

hearings, adopt and submit to the

Administrator, within nine months

after the promulgation of a national

primary ambient air quality standard

(or any revision thereof) under

section 7409 of this title for any

air pollutant, a plan which provides

for implementation, maintenance, and

enforcement of such primary standard

in each air quality control region

(or portion thereof) within such

State. In addition, such State shall

adopt and submit to the Administrator

(either as a part of a plan submitted

under the preceding sentence or

separately) within nine months after

the promulgation of a national

ambient air quality secondary

standard (or revision thereof),a plan

which provides for implementation,

maintenance, and enforcement of such

secondary standard in each air

quality control region (or portion

thereof) within such State. Unless a

separate public hearing is involved,

each State shall consider its plan

implementing such secondary

standard at the hearing required by

the first sentence of this paragraph.

"(2) The Administrator shall,

within four months after the date

required for submission of a plan

under paragraph (1), approwe of dis-

approve such plan or each portion

thereof. The Administrator shall

approve such plan, or any portion

thereof, if he determines that it was

adopted after reasonable notice and

hearing and that-

*x* * &

"(B) it includes emission limita-

tions, schedules, and timetables for

compliance with such limitations, and

such other measures as may be neces-

sary to insure attainment and

maintenance of such primary or

secondary standard, including, but

not limited to, transportation con-

trols, air quality maintenance plans,

and preconstruction review of direct

sources of air pollution as provided

in subparagraph (D);

x * &

"(3) (A) The Administrator shall

approve any revision of an

implementation plan application to an

air control region if he determines

that it meets the requirements of

paragraph (2) and has been adopted by

the State after reasonable notice and

public hearings.

Act,

(3) Section 305(e) of the Clean Air

42 U.S.C. § 7601 states:

"§7601. Administration

Regulations; delegation of

powers and duties; regional

officers and employees

“(a)(1) The Administrator is

authorized to prescribe such regu-

lations as are necessary to carry

out his functions under this chapter.

The Administrator may delegate to any

officer or employee of the Environ-

mental Protection Agency such of his

powers and duties under this chapter,

except the making of regulations, as

he may deem necessary or expedient.

"(2) Not later than one year

after August 7, 1977, the Admini-

strator shall promulgate regulations

establishing general applicable

procedures and policies for regional

officers and employees (including the

Regional Administrator) to follow in

carrying out a delegation under para-

graph (1), if any. Such regulations

shall be designed -

"(A) to assure fairness

and uniformity in the criteria,

procedures, and policies apptied by

the various regions in implementing

and enforcing this chapter;

"(B) to assure at least an

adequate quality audit of each

State's performance and adherence to

the requirements of this chapter in

implementing and enforcing the

chapter, particularly in the review

of new sources and in the enforcement

of the chapter; and

"(C) to provide a mecha-

nism for identifying and standard-

izing inconsistent or varying cri-

teria, procedures, and policies being

employed by such officers and em-

ployees in implementing and enforcing

the chapter.

(4) Section 307(b)(1) of the Clean

Air Act, 42 U.S.C. § 7607(b) (1) states:

Judicial review

"(b) (1) A petition for review

of action of the Administrator in

promulgating any national primary or

secondary ambient air quality

standards, any emission standard or

requirement under section 7412 of

this title, any standard of

performance or requirement under

section 7411 of this title, any

standard under section 7521 of this

title (other than a standard required

to be prescribed under section

7512(b) (1) of this title) any deter-

mination under section 7521(b)(5) of

this title, any control or prohibi-

tion under section 7545 of this

title, any standard under section

7571 of this title, any rule issued

under section 7413, 7419, or 7420 of

this title, or any other nationally

applicable regulations promulgated,

or final action taken, by the Admini-

strator under this chapter may be

filed only in the United States Court

of Appeals for the District of

Columbia. A petition for review of

the Administrator's action in

approving or promulgating any

implementation plan under’ section

7410 of this title or section 7411(d)

of this title, any order’ under

section 7411(j) of this title, under

section 7412(c) of this title, under

section 7413(d) of this title, under

section 7419 of this title, or under

section 7420 of this title, or his

action under section 119(c) (2) (A),

(B), or (C) (as in effect before

August 7, 1977) or under regulations

thereunder or any other final action

of the Administrator under’ this

chapter which is locally or

regionally applicable may be filed

only in the United States Court of

Appeals for the appropriate circuit.

Notwithstanding the preceding

sentence a petition for review of any

action referred to in such sentence

may be filed only in the United

States Court of Appeals for the

District of Columbia if such action

is based on a determination of

nationwide scope or effect and if in

taking such action the Administrator

finds and publishes that such action

is based on such a determination.

Any petition for review under this

subsection shall be filed within

sixty days from the date notice of

such promulgation, approval, or

action appears in the Federal

petition is based solely on grounds

arising after such sixtieth day, then

any petition for review under this

subsection shall be filed within

sixty days after such grounds arise.

(5) Section 305(d)(6)(A) of the

Clean Air Act, 42 U.S.C. § 7607(d) (6) (A)

states:

"(6) (A) The promulgated rule shall

be accompanied by (i) a statement of

basis and purpose like that referred

to in paragraph (3) with respect to a

proposed rule and (ii) an explanation

of the reasons for any major changes

in the promulgated rule from the

proposed rule.

STATEMENT OF THE CASE

Summary

On November 10, 1981, the Administra-

tor of the United States Environmental

Protection Agency in a iengthy federal

rulemaking action, unexplainedly reversed

his position and partially withdrew his

1978 approval of West Virginia's State

Implementation Plan revisions for two coal

fired power plants. Such reversal consti-

tutes an arbitrary and capricious action

in the most classic sense. The Admin-

istrator did not explain why the approval

was reversed, and EPA's own rationale

document admits that not to approve such

revisions is unreasonable.

The State appealed EPA's decision to

the Fourth Circuit Court of Appeals. How-

ever, our petition was automatically

transferred to the Third Circuit pursuant

to 28 U.S.C. § 2112(a) because the

Commonwealth of Pennsylvania and several

environmental groups had previously filed

petitions for administrative review in

that Circuit. Even though the Third

Circuit lacked subject matter

jurisdiction, our request for retransfer,

{also pursuant to 28 U.S.C. § 2112(a)],

was denied.

After briefs and oral argument, in a

one sentence order, the Third Circuit

denied all challenges to EPA's action.

Appendix A.

The State of West Virginia seeks re-

view in the Supreme Court of substantial

legal issues concerning the

lone rationale document accompanying the proposed

rulemaking is essential to the Court's review of

this Petition and will be certified to this Court

pursuant to Rule 19.1. This document, written by

the chief technical advisor in the rulemaking on

October 26, 1979 will be referred throughout this

Petition as the "Belanger Memo."

-10-

Administrator's arbitrary actions, his

dissimilar treatment of our State

Implementation Plan from other States, the

improper ursurpation of authority by the

Administrator and the improper exercise of

jurisdiction by the Third Circuit Court of

Appeals concerning a rulemaking involving

a State not within its geographical

composition.

Statement of Facts

As we are sure this Court realizes

the Clean Air Act has had major impact on

the coal and electrical power industries

throughout the Nation. Two power stations

in West Virginia, the Harrison power sta-

tion (owned by Monongahela Power Company)

and the Mitchell power station (owned by

Ohio Power) were required by state and

federal regulation to drastically limit

their emissions of sulfur dioxide (S0.) by

1978.

During the pre-compliance period

(1975-1978) it became obvious that the

national ambient air quality standards

(NAAQS) were being achieved without

further required reduction in emissions

and that the higher sulfur coal located in

the northern portion of West Virginia was

no longer in demand due to. stringent

-ll- °

emission limits required to meet the pri-

mary NAAQS.

On July 12, 1976, the Governor of

West Virginia issued an Executive Order

requiring the West Virginia Air Pollution

Control Commission (Commission) to adopt

so, emission limits at a level which would

both meet the national ambient air quality

standards (NAAQS) and protect the State's

coal economy. The Executive Order

correctly found that actual so, ambient

air levels in West Virginia were generally

much cleaner than necessary to comply with

the NAAQS. The Governor's directive re-

quired the Commission to use atmospheric

dispersion models as the primary analy-

tical means “for assuring that ambient

sulfur dioxide standards will be achieved

and that unnecessarily stringent limita-

tions will thereby be avoided."

To this end, EPA and the Commission

undertook air dispersion modelling.” EPA

zan air dispersion model is a computer construct

used to predict an emission source's expected im-

pact on air quality. Assumptions and variables

“plugged” into the computer include data concerning

hourly meterological conditions and power plant

load factors. See State of Texas v. EPA, 499 F.2d

289, 301 (5th Cir. 1974) and Cleveland Electric

Illuminating Co. v. EPA, 572 F.2d 1150 (6th Cir.

1975) for an explanation of mathematical modeJs.

-12-

presented to the State results of a study

which used six (6) years of meteorological

data.’ EPA officials testified at the

State's rulemaking proceeding that emis-

sion limits for the Mitchell power station

could be set at a 4.9% sulfur-in-coal

level and that Harrison could be set at a

4.2% sulfur-in-coal level. These limits

contrast with the 1978 limits of 1.25%

sulfur-in-coal.

EPA, however, continued to model for

two additional years of meteorological

data. These additional predictions showed

that in an “artificial” situation using

"1974 emissions data in terms of fuel

quality, an artificial operating load

which the plant may never have actually

experienced and 1976 meteorological data"

(Belanger Memo, p. 5) that the 3 hour

secondary NAAQS might be violated at a

point only 1.5 km from each plant. EPA,

exercising proper judgment and recognizing

the State's primary role in setting its

own emission limits, left the degree of

confidence and safety factor for achieving

the NAAQS to the State.

3modelling is usually conducted for only one year.

See Belanger Memo, p. 6.

The State examined the modelling re-

sults and submitted emission limits lower

than EPA's expressly stated approvable

limits. Mitchell and Harrison were set at

4.2% and 3.7% respectively.

EPA, however, recognized that § 123

of the 1977 Clean Air Act Amendments con-

tained a prohibition against "tall

stacks". The Harrison emission limits

therefore had to be recalculated using a

fictitious stack height of 640 feet

instead of its actual 1000 feet. Based on

these new calculations, EPA informed the

State that a 3.2% sulfur-in-coal limit was

approvable and the Commission lowered its

submitted emission limits for Harrison to

that new level.

With full knowledge of the predicted

violations, EPA approved these emission

limitations as a part of the West Virginia

State Implementation Plan on November 9,

1978. Appendix C. In doing so, EPA pro-

perly discounted the predicted violations

because the mathematical model was based

on conservative assumptions unreasonably

strict in light of the large amount of

meteorological data used and because the

-14-

predicted violation was based on "A" sta-

bility meteorological conditions. 4

After such approval, the Common-

wealth of Pennsylvania and several envi-

ronmental groups sued EPA in the Third

Circuit Court of Appeals. EPA requested a

voluntary remand to reconsider the model-

ling data. The State of West Virginia

intervened in the proceeding.

On remand, EPA modelled for yet an-

other year of meteorogical data and pro-

posed to reapprove the previously sub-

mitted emission limits. The rationale

document accompanying this proposed re-

approval consitutes an admission and ex-

planation by the Agency of the reasons for

reapproval. This document explains why re-

traction of EPA's approval is

unreasonable, arbitrary and capricious.

(Belanger Memo).

EPA found that use of nine (9) years

of meteorological data ("more than EPA has

4u qe stability is an extremely rare meteorological

condition of short duration Rulemaking based on "A"

stability without a study to confirm its existence,

frequency and effect on pollution dispersion is

arbitrary and capricious. Cincinnati Gas & Elec-

tric Co. v. EPA, 578 F.2d 660 (6th Cir. 1978) cert.

denied 434 U.S. 1114 (1979).

ever used" Belanger Memo, p. 6) and the

normal conservative modelling inputs more

than justified approving the emission

limits.

"Our usual policy (of conservative

inputs in the model which counterbal-

ances the lack of meteorological data)

does not take into account, however,

the so far unique case in which there

is a very ample record of meteoro-

logical data, extending over nine

years when we are able to actually

identify the rare, worst case of wea-

ther conditions -- roughly speaking,

the meteorological equivalent of a

hundred-year flood.

"When we have ample meteorological

data, and consider the worst case dis-

closed, our other conservative assump-

tions become unreasonably strict.

"(In this case] we are beginning with

an extremely rare event in meteoro-

iogy, and then piling onto that, as-

Sumptions about rare events all of

which take together amount to an im-

possibility or at least to an unrea-

sonable improbability.

"I think this argument would be self-

evident * * *,"

(Belanger Memo, pp. 8-9).

Thus EPA admits that the modelling per-

formed was unreasonable and predicted an

impossible event or at least an event of

unreasonable improbability.

EPA performed a statistical probabil-

ity analysis to "supplement" its judgment.

This statistical probability method fac-

tored in variability of the sulfur in coal

fuel. The analysis predicted that there

would be a violation of the secondary stan-

dard on the average of once in 28 years at

Mitchell and once in 37 years at Harrison.

"For either station, that is

‘probably longer than the useful

lifetime of the plants as base-

load generating stations, and a

longer time than we require any

State to consider in planning air

quality. See, for example, 40

CFR § 51.12 e, which requires

planning for a 10-year period.

(Other mechanisms are used to

maintain the standards after that

period.) In short, even under

conservative assumptions about

the model itself, we can predict

with reasonable certainty that

there will be no ambient air qual-

ity violations from either plant

during their lifetimes. (Belanger

Memo, p. 12).

Finally, EPA concluded:

“x * * T have examined the CRSTER

printouts for both Mitchell and

Harrison for this 1977 (ninth)

ste

model year and find that the con-

centrations predicted are sub-

stantially below those for 1976

and so there are no further pre-

dicted violations of the air

quality standards based on this

extra year or meteorology. The

consequence of this is that a

predicted violation at either of

these plants could occur only

once if that rare event which

occurs during one three-hour pe-

riod in nine years happens to

coincide with the plants burning

the highest sulfur percentage

which they are allowed to burn

and with a very large background

in the case of the Mitchell

plant. As was stated before, the

analysis done at SAI incorporated

indicates that the probability of

this coincidence occurring is

very low, and so far as we can

determine is at least as low as

the probability of violations

resulting from assumptions that

our usual modeling techniques

guidance would approve.

(Belanger Memo, p. 14).

But after this thorough analysis and

careful justification which supported its

proposed rule reapproving the limits

(Appendix D), EPA reversed its position,

withdrew its approval of the emission lim-

its because they were not adequate to

attain secondary NAAQS, and gave the State

-18-

nine months to either justify the limits

or lower them. Appendix E.

The only reason EPA gave for its sudden

change was that they had not yet approved

the use of the statistical probability

method. But since the Agency never relied

on it for its first approval and had other

reasons for upholding its decision, non-

use of the statistical probability method

is a straw man and not a valid reason for

overturning its approval.

Indeed, the failure to use this method

is somewhat peculiar since the purpose of

determining statistical probability is to

infuse some semblance of realism into the

rulemaking. As EPA asserts, some kind of

realism must be plugged into the decision

and that failure to do so is arbitrary:

"Any time we try to make predictions we

are faced with uncertainities. These

uncertainities apply whether we are

attempting to forecast the cost of a

building or the weather for tomorrow or

whether cr not there will be a viola-

tion of an air quality standard. Air

pollution modelling is not a precise

science, so it is always necessary to

temper one's conclusion with a certain

amount of judgment about the probabil-

ities of an event occurring. (Emphasis

supplied).

(Belanger Memo, p. 5).

Use of the statistical probability

method is necessary in this case to avoid

fantasyland rulemaking. EPA's rationale

document stated:

"Our conservative assumptions, in short

were inconsistent with the uniquely

ample record of meteorology before us.

x * &

"In the usual modelling analysis, we

assume that the fuel burned is steadily

and uniformly the highest sulfur con-

tent allowed. We know that this is

physicall impossible; if a power

plant, or instance, is actually

complying with the limits on maximum

emissions, the natural variability of

sulfur in fuel is such that most of the

emissions will be below the maximum.

We ordinarily make an unreasonable and

conservative assumption about sulfur

variation to counterbalance our lack of

information about meteorology and other

factors. When the conservative

assumption is no longer needed,

however, and the actual data about

sulfur is available it is reasonable to

abandon our usual assumption and

consider the real data we have."

(Emphasis supplied.) (Belanger Memo, p.

9).

Indeed, in a Notice of Inquiry, 45

Fed. Reg. 9994 (February 14, 1980), EPA

had exempted from inquiry and alteration

its West Virginia SIP approval because the

-20-

statistical analysis “was combined with an

alternative set of more stringent [model-

ling] conditions in determining that a

violation of ambient air quality standards

was not expected.” 44 Fed. Reg. 9996, Col.

By rejecting the State's SIP, EPA has

treated West Virginia differently than

neighboring states such as Ohio. For ex-

ample, EPA implicitly adopts the "A" sta-

bility meteorological conditions found

unreasonable in the Sixth Circuit. In

addition, the record contains documents

from Region V personnel that if EPA's Re-

gion III adopted the Region V calculation

of background then Mitchell power station

would be predicted as attaining the secon-

dary standard. Finally, EPA modelled for

only one year of meteorological data in

Ohio, but nine years in West Virginia!

(Belanger Memo, p. 6).

ARGUMENT IN SUPPORT OF

GRANTING WRIT OF CERTIORARI

Summary

The five issues presented for decision

are vitally important and confusing ques-

tions of federal law which must be settled

by the Supreme Court. The Third Circuit's

judgment order (issued one day after oral

-21-

argument) implicitly decides many of these

issues in conflict with decisions of other

federal Courts of Appeal and this Court

and exhibits the Third Circuit's

reluctance to deal with complex and

confusing technical questions. The

qi. :stions presented raise yeneric issues

common to all the states concerning

federal air pollution control law,

aiministrative rulemaking, the authority

of respective sovereigns and federal

appellate jurisdiction.

Because all of these issues affect the

entire fifty states and the federal

government, the national interest will be

served by this Court deciding them. This

Court should not allow additional unequal

treatment of State Implementation Plans or

continued conflicting appellate court

decisions before clearing up an already

nonsensical administrative process. This

Court must also rule on questions of

appellate jurisdiction to properly

supervise the judiciary, uphold

Congressional intent and ensure fairness

to the litigants.

Jurisdictional Issues

By refusing our motion to retransfer

the case to the Fourth Circuit for lack of

subject matter jurisdiction, the Third

Circuit ignored expressed Congressional

principles reaffirmed by the First and

District of Columbia Circuits. NRDC v.

EPA, 465 F.2d 492 (lst Cir. 1972); NRDC v.

EPA, 475 F.2d 968 (D.C. Cir. 1973). Con-

gress intended that SIP's be reviewed in

the circuit where the area is located.

The Third Circuit has fostered juris-

dictional confusion festering since the

Clean Air Act Amendments first passed in

1970° and which will continue to grow in

national importance over the next several

years.

The instant case is really only a shot

in the opening legal salvo of a brewing

Civil war over the “acid rain" contro-

versy. The Commonwealth of Pennsylvania

was objecting to the new so, emissions

because, they allege, so, increases will

exacerbate the acid rain problem. By

>See e. g., District of Columbia v._ Train,

533 F.2d 1250, 1252 (D. C. Cir. 1976).

filing its petition in the Third Circuit,

Pennsylvania secured a convenient,

familiar forum sensitive to her problems.

As more States become increasingly liti-

gious over acid rain and interstate air

pollution, ° they too can seek judicial

re,iew of other State's implementation

plans in their own backyards - against the

expressed Congressional desire and to the

detrement of local review.’

By accepting jurisdiction, the Third

Circuit obviously agreed with Pennsylvania

that a state allegedly impacted by the air

emissions “ould bring its review petition

in its home circuit and not in the Circuit

where with SIP is located.

The Clean Air Act grants geographically

based subject matter jurisdiction dividing

appellate review between the "appropriate"

circuit for local and regional issues ver-

6. g., State of Connecticut v. EPA, 656 F.2d 902

(2nd Cir. 1981); State of New York v. U. S. EPA, D.

C. Cir. No. 81-1183 (challenges to Michigan and |

Ohio SIPS); State of New York v. U. S. EPA, 7th

Cir. No. 80-2808 (Indiana SIP).

"See Peabody Coal Co. v. EPA, 522 F.2d 1152, 1153

(8th Cir. 1975).

sus the District of Columbia Circuit for

national issues. 42 U.S.C. § 7607(b) (1).

A State Implementation Plan is expressly

designated as a local or regional issue in

the statute, 42 U.S.C. § 7607(b) (1) to be

heard exclusively in the Court which

contains that State or air quality control

region within its geographical composition

"For review of the approval or pro-

mulgation of implementation plans which

run only to one air quality control

region, the section places jurisdiction

in the U. S. Court of Appeals for the

Circuit in which the affected air qual-

ity control region or portion thereof

is located."

Senate Report No. 91-1196, 91 Cong., 2d

Sess. 41 (1970). Cited in NRDC v. EPA,

465 F.2d 492, 494 (Ist Cir. 1972).

The 1977 Clean Air Act Amendments® were

supposed to clarify this legislative in-

tent and to ensure that SIP reviews were

conducted in the circuit where the area is

located.

"(The addition to the second sentence]

provides for essentially locally,

statewide or regionally applicable

8 examined for a different and rare jurisdictional

issue in Harrison v. PPG Industries, Inc., 446 U.S.

578 (1980).

@25<

rules or orders to be reviewed in the U.

S. Court of Appeals for the Circuit in

which such locality, state or region is

located. This provision applies, * * *

to the Administrator's action in ap-

proving, promulgating an implementation

plan for any state.

H.R Rep. No. 95-294, 95th Cong., lst

Sess., 323-324 (1977) reprinted in 1977

U.S. Code Congressional and Administrative

News, 1402-1403.

Both the First and D. C. Circuits noted

that the words "Appropriate Circuit" con-

notes a certain amount of flexibility.

NRDC v. EPA, supra; NRDC v. EPA, supra.

More than one appropriate circuit can

exist; but only when the EPA administra-

tive action pertains to a geographical

area in more than one circuit. NRDC v.

EPA, 475 F.2d at 969-970. The instant

rulemaking is specific to West Virginia's

SIP and does not deal with an interstate

air quality control region.

The judicial review provisions of 42

U.S.C. § 7607(b)i1) designating “appro-

priate" circuit is not a venue provision.

goth of these cases really dealt with the

question of which court should hear national

issues under 42 U.S.C. § 7607(b)(1) prior to

amendment in 1977.

See e.g. Panhandle Eastern Pipeline Co.

v. F.P.C., 324 U.S. 635 (1945). Juris-

diction and venue are creatures of con-

gressional intent. Congress intended that

EPA rulemaking concerning West Virginia's

SIP should be heard in the Fourth Circuit.

Indeed, if “appropriate” circuit is a

venue provision then many unintended re-

sults attach. For example, if the State

of Maine sues EPA for approving Indiana's

SIP, then the First Circuit could be the

"appropriate" circuit rather than the

Seventh Circuit. Congress did not intend

such a result!

In addition, if “appropriate” circuit

is a venue provision, then West Virginia

will continually face venue battles since

EPA's regional office is in Philadelphia

and the Third Circuit can be considered

more “convenient” than the Fourth Circuit

- especially, for example, if the peti-

tioner is a Philadelphia based corpora-

tion. Likewise, New Mexico could have its

SIP reviewed in the Fifth Circuit instead

of the Tenth Circuit since EPA's Regional

Office is in Dallas, Texas. Ohic's SIP

could be reviewable in the Seventh Cir-

cuit, since EPA's Regional Office is in

Chicago rather than the Sixth Circuit

where it belongs.

In a case similar to the instant

situation the Eighth Circuit transferred

its case to the Tenth Circuit.

"(W]e cannot ignore the fact that the

primary environmental effect of the

Administrator's action in this case

will not be felt in this circuit, but

in Colorado. We assume that most of

those interested in the state's permit

program reside and transact business in

Colorado. It therefore stands to

reason that future litigation on this

subject will more probably be in the

Tenth Circuit than in any other. It is

plain that inconsistent adjudications

as to Colorado's program could result

if we would hear this case, a result

which federal courts must avoid

whenever possible." Peabody Coal Co.

v. EPA, 522 F.2d at 1153.

This Court must accept this writ to

prevent forum shopping and wasted judicial

time taken up deciding jurisdictional

venue and transfer motions.

EPA'S REVERSAL WITHOUT REASON INSPITE

~ OF CONTRARY OVERWHELMING EVIDENCE

In its final rulemaking action on

November 9, 1978, EPA approved the

emission limits for Harrison and Mitchell

power stations. After further examination

EPA proposed to reapprove these emission

limits and then, without adequate

justification, reversed itself and refused

to approve the same emission limits.

EPA's unreasonable reversal flies in the

face of overwhelming evidence and a

Congressionally mandated duty to explain

the reason "for major changes in the

promulgated rule from the proposed rule."

42 U.S.C. § 7607(d) (6) (A).

Beside disregarding a legislative man-

date EPA also flagrantly ignores princi-

ples of reasoned rulemaking enunciated in

several Supreme Court decisions. E.g.,

Atchison, Topeka & S.F.R. Co. v. Wichita

Board of Trade, 412 U.S. 800, 806, fn. 5

808 (1972); Secretary of Agriculture v.

United States, 347 U.S. 645 (1945).

Indeed, as the Legislative history to

42 U.S.C. § 7607(d) (6) (A) points out:

"A fourth alleged procedural short-

coming of the existing act is its fail-

ure to require the Administrator of EPA

to state clearly the reasons for his

action. This criticism was implicit in

the Court's decision in Kennecott

ae Cork. v. EPA, 462 F.2d 846 (D.

Care r. .

-29-

Section 305 of the committee bill

establishes a new subsection 307(d) of

the act. This provision of the

committee bill attempts to cure each of

the problems which have been identified

under the current act's approach to

rulemaking.

Administrative Decision.- In promul-

gating any rule referred to in this

section, the Administrator must state

the basis of purpose of the final rule,

just as such a statement must accompany

the proposed rule. The final rule must

also be accompanied by an explanation

of the reasons for any major changes

from the proposed version and a re-

sponse to the significant comments,

criticisms and data submitted during

the comment period. While these state-

ments needs not be exhaustive or re-

spond to every argument regardless of

weight, they must be of sufficient

depth and complexity to show that the

Administrator did consider public

comments, to provide basis for States

to know how to revise plans so as to be

approvable (in case of a disapproval),

and to permit any court reviewing the

rule under section 307(b) to be fairly

apprised of the basis for the Admin-

strator's action.

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

Sess., 318, 319 and 321, reprinted in 1977

U. S. Code Congressional and Administra-

tive News, 1397, 1398, 1400.

EPA has given the State nine months to

either justify the emission limits or to

lower them. Appendix E. Based on the

-30-

record, we have no idea of what factors

could justify or convince EPA to accept

the limits. How can we further convince

EPA that the modelling was overly conser-

vative and unreasonable when the record is

replete with their own admissions?

As the sophistication and complexity of

air quality modelling increases, courts

will be more frequently called upon to

examine EPA's justifications. See e.g.,

State of Texas v. EPA, 499 F.2d 289 (5th

Cir. 1976); Cleveland Electric Illumina-

ting Co. v. EPA, supra, fn. 2. Parties to

the case postulated that EPA reversed its

position because of the artificially pre-

dicted violation. But EPA is not required

to reject a SIP based on predicted vio-

lations. Environmental Study and Protec-

tion v. P.A.C, 464 F.,Suop. 143 (D. Conn.

1978). EPA has not explained its "major

change” in policy and the Third Circuit's

refusal to closely examine substantial

modelling and administrative rulemaking

issues, in an area where EPA's authority

is limited, Union Electric Co. v. EPA, 427

U.S. 246 (1976) encourages EPA to continue

its pre-amendment policy of not explaining

its decisions.

-3l-

The instant case presents an example

where EPA, after extensive modelling, ac-

cepted a self-proclaimed unreasonable re-

sult that the secondary NAAQS might be

violated for a theoretical three-hour per-

iod, . Since air quality modelling is the

method of choice for setting emission lim-

its, review by this Court is necessary to

curb an agency whose rulemaking borders on

fantasy and to uphold Congressional intent

on issues which affect each State and most

major emission sources.

WHICH SOVEREIGN HAS

PRIMARY RESPONSIBILITY

Perhaps an even more outlandish aspect

of this case is EPA's intrusion into an

area expressly reserved to the States.

Section 107(a) of the Clean Air Act ex-

pressly provides that the States have pri-

mary res; nmsibility for attaining and

maintaining air quality. EPA's acceptance

of the fantasy violation rejected a law-

fully promulgated State regulation (based

on hundreds of pages of testimony) which

EPA adopted in a final rulemaking. Since

the violation predicted is only 1.5 km

from the source (solely within West

Virginia) EPA's second-guessing of the

-32-

Commission's decision is even more

egregious.

As this Court has decided favorably for

the States, it is the States’ responsi-

bility to determine the best way to pro-

tect its citizens and to set the emission

loads within the State. Union Electric

Co. v. EPA, supra; Train v. NRDC, 421 U.S.

60 (1975).

This issue of sovereignty vitally af-

fects the cooperative framework Congress

established for implementation of the

Clean Air Act. Indeed, EPA itself is

apparently confused over its role since,

in this case, it originally left the

safety factor and degree of confidence of

the model to the State.

This Court must rule on this issue to

preserve the proper role of the sovereigns

who share jurisdiction over the Nation's

air.

EPA REGIONAL OFFICES MUST

“TREAT STATES SIMILARLY —

In 1977 Congress recognized that EPA

Regional Offices treated States dif-

ferently and debated whether to restrict

their authority. Congress continued al-

lowing delegation of authority to the

-33-

Regions but only if the Administrator pro-

mulgated regulations to “assure fairness

and uniformity in the criteria, procedures

and policies applied by the various re-

gions . . ." 42 U.S.C. § 7601.

"The committee was also concerned

about inconsistencies in procedures,

policies, practices, and legal inter-

pretations in EPA's regional offices.

These problems are highlighted by the

factual situation which is detailed in

Montana Power COPRSRY Vv. EPA,

_ _ BLD D. Mont. ve a

"Section 305(e) of the bill con-

tains measures necessary for rational

administration of a regional system. *

* *

"If the Agency chooses to continue

to rely on this approach, it must do so

subject to the following constraints.

First, there must be reasonable uni-

formity in the criteria, procedures,

and policies applied by the various

regional offices under the act. Thus,

use of different air quality models in

different regions for the purpose of

implementing the provision requiring

prevention of significant deterioration

would no longer be permitted."

1977 U.S. Code Congressional and Admin-

istrative News, pp. 1398, 1403.

Issues relating to modelling, of course,

are much broader than the PSD issue dis-

cussed in Montana Power and Congress

intended uniformity in all areas of model-

ling.

The instant case is a glaring example

of EPA's failure to heed Congressional

mandates. EPA and the Third Circuit have

both disregarded Cincinnati Gas & Electric

Co. v. EPA, 578 F.2d 1150 (6th Cir. 1978);

cert. d@enied 434 U.S. 1114 (1979) and

treated West Virginia modelling differ-

ently than Ohio's by relying on "A" sta-

bility without justification. In ad-

dition, background concentrations were

calculated in such a way that Mitchell

power station would be attainment if EPA

Region III had adopted the Region V calcu-

lation. Not only has EPA treated the

States differently without justification,

it has not heeded Congress' instruction to

promulgate rules in such matters!

The Sixth Circuit and Third Circuit are

in conflict. States and emission sources

are getting unequal treatment in similar

situations. This Court must rule on this

-35-

nationally important environmental issue.

CONCLUSION

For the above stated reasons,

Petitioners respectfully request this

Court to issue a Writ of Certiorari.

Respectfully submitted,

STATE OF WEST VIRGINIA,

EX REL. AIR POLLUTION

CONTROL COMMISSION

By Counsel

CHAUNCEY H. BROWNING

ATTORNEY GENERAL

NICHOLAS W. JOHNSON

DEPUTY ATTORNEY GENERAL

Counsel of Record

RONALD A. SHIPLEY

ASSISTANT ATTORNEY GENERAL

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

THE STATE OF WEST VIRGINIA, ex rel. WEST

VIRGINIA AIR POLLUTION CONTROL COMMISSION,

Petitioner in No. 81-1343

vs.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, DOUGLAS M. COSTLE, Administrator,

Respondent

MONONGAHELA POWER COMPANY and OHIO POWER

COMPANY,

Intervenors

Petition for Review

Environmental Protection Agency

Argued

September 21, 1981

Before: ALDISERT, HIGGINBOTHAM and

SLOVITER, Circuit Judges.

JUDGMENT ORDER

After considering the contentions of

the petitioners, the intervenors and of

@37-

the United States Environmental Protection

Agency, it is

ADJUDGED and ORDERED that the

petition for review of the final order of

the Environmental Protection Agency be and

is hereby denied.

Costs taxed against petitioners.

BY THE COURT,

/Aldisert/

Circuit Judge

Attest:

/Sally Mrvos/, Clerk

Dated: September 22, 1981

o96=

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-1343

THE STATE OF WEST VIRGINIA, EX REL. WEST

VIRGINIA AIR POLLUTION CONTROL COMMISSION,

Petitioner,

Vv.

THE UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, Douglas M. Costle, Administrator,

Respondent.

SUR PETITION FOR REHEARING

Present: Aldisert, Adams, Gibbons,

Garth, Higginbotham, and

Sloviter Circuit Judges.

The petition for rehearing was filed

by the State of West Virginia, ex rel.

West Virginia Air Pollution Control Com-

mission, petitioner in the above entitled

case having been submitted to the judges

who participated in the decision of this

court and to all the other available cir-

cuit judges of the circuit in regular ac-

tive service, and no judge who concurred

in the decision having asked for re-

hearin§, and a majority of the circuit

=39=

judges of the circuit in regular active

service not having voted for rehearing by

the court in banc, the petition for re-

hearing is denied.

By the Court,

/A. Leon Higginbotham/

Circuit Judge

Dated: October 21, 1981

-40-

APPENDIX C

PART 52 - APPROVAL AND PROMULGATION

OF IMPLEMENTATION PLANS

43 Fed. Reg. 52239 (November 9, 1978)

West Virginia Implementation Plan;

Revision

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: This rule announces the Admini-

strator's decision on the amended portion

of regulation X of the West Virginia State

Implementation Plan. The amendments pro-

vide for the relaxation of sulfur dioxide

emission limitations at certain power

plants, the deletion of the provisions

related to secondary standards for all

fuel burning units in the State, and a

number of administrative changes. The

Administrator is approving the portions of

the amendments relating to the Fort Martin

and Mitchell power plants and the deletion

of the provisions related to the secondary

standards for all fuel burning units in

the State except the portion of §3.03(b)

relating to the Rivesville facility. For

the Rivesville facility the Administrator

has determined that the existing emission

limitation is inadequate to protect Na-

tional Ambient Air Quality Standards and

is calling for a revision for this part of

the State implementation plan. Further-

more, the Administrator is delaying action

on the portion related to the Kammer faci-

lity and approving an interim emission

limitation for the Harrison power plant.

EFFECTIVE DATE: January 9, 1978

-41-

SUPPLEMENTARY INFORMATION:

Background

On January 25, 1978, the Governor of

West Virginia submitted to EPA, region III

a revision of regulation X (1973) for the

control of sulfur dioxide. In his letter,

Governor Rockefeller advised that the re-

vision of regulation X had been adopted by

the West Virginia Air Pollution Control

Commission on December 19, 1977, and ap-

proved by the West Virginia Legislature on

February 11, 1978. Further, the Governor

asked that EPA consider the revision of

regulation X as a change of the existing

State Implementation Plan (SIP).

The revision primarily concerns sec-

tion 3 of regulation X, wherein emission

limits for electric power generating

plants are set forth. These emission

limits are intended to protect both the

national primary and secondary standards

for sulfur dioxide. The new emission

limits proposed by West Virginia

constitute a relaxation of existing

limits. West Virginia's request

represents the third proposed modification

of regulation xX since it was first

approved by EPA in 1972.

The first change occurred in 1973

when the State deleted its own secondary

standard for sulfur dioxide which was more

stringent than the Federal secondary stan-

dard.

The second change was adopted by West

Virginia on November 4, 1976, and sub-

mitted on November 10, 1976, to EPA as a

proposed revision of the West Virginia

State Implementation Plan. These 1976

revisions constituted a relaxation of

emission limits for certain major power

generating stations including the Mitchell

=42-

and Kammer Plants of Ohio Power Co., the

Willow Island station of the Monongahela

Power Co. and the John Amos plant of the

Appalachian Power Co. In addition, the

State proposed a deletion of §§ 3.01(b)

and 3.03(b) which pertain to emission

limitations intended to protect’ the

national secondary standard for sulfur

dioxide. These changes reflected the

"moratorium" on all sulfur oxide controls

deemed to be more stringent than needed to

protect air quality standards as declared

by the Governor of West Virginia in April,

1976, in an Executive order. The order

resulted out of the Governor's concern for

West Virginia's coal economy and parity

between West Virginia and Ohio in the

enforcement of regulations to control

sulfur dioxide. However, the State had

not submitted a certification of public

hearing and had not adequately demon-

strated that air quality standards would

be attained and maintained as a result of

the changed as required by Federal law.

Consequently, the State, on advice of EPA

region III, announced its withdrawal of

the proposed revision submitted in 1976

and its replacement by the submittal of

January 25, 1978.

The most recent proposal primarily

concerns the emission limitations of sul-

fur dioxide as they apply to the Kammer,

Mitchell, Fort Martin, and Harrison power

plants. The emission limits proposed by

West Virginia constitute a relaxation of

existing emission limits related to the

primary standard. Furthermore, unlike the

1976 revisions, these new changes for the

above four power plants, with the excep-

tion of deletions of §§ 3.0l(b) and

3.03(b), are based on the results of an

extensive modeling study performed by the

EPA in cooperation with the West Virginia

af3e

Air Pollution Control Commission. The de-

letion of §§ 3.0l1(b) and 3.03(b) is based

on an additional study performed by the

State. As discussed earlier, these sec-

tions are intended to protect the national

secondary standard for sulfur dioxide and

were effective on June 30, 1978, according

to the federally approved regulation X.

Finally, the proposed revision includes

changes to certain requirements for emis-

sion data reporting and operating con-

ditions.

On June 23, 1978, (43 FR 27208), the

Regional Administrator proposed several

actions on the amendments to regulation X

submitted by the State of West Virginia as

a requested revision of the West Virginia

State Implementation Plan and provided for

a 30-day comment period ending July 23,

1978. The Regional Administrator proposed

that the portions of the regulation re-

lating to the Fort Martin and Mitchell

er plants and the deletion of §§

3.01(b) and 3.03(b) concerning the pro-

tection of the secondary standard for sul-

fur dioxide be approved. * * * Finally,

for the Harrison power plant of Monon-

gahela Power Co., the Regional Admin-

istrator invited the state to submit to

EPA an intezim emission limitation of 5.12

lbs. SO./10° Btu, approximately a 3.2 per-

cent sui fur-in-fuel requirement, based on

an estimated “good engineering practice"

stack height which would apply for a short

period such as one year or until final

promulgation of the section 123 regu-

lation, whichever is the shorter period of

time.

On September 13, 1978, the Governor

of West Virginia submitted to EPA at the

invitation of the Regional Administrator

(June 23, 1976, 43 FR 27208), an interip

emission limitation of 5.12 lbs SO.,/10

-44-

Btu, approximately 3.2 percent sulfur-in-

fuel, for the Harrison facility of Monon-

gahela Power Co. * * *

FINAL ACTION

The Administrator has reviewed the

comments submitted during the public com-

ment period and is today finalizing the

action proposed by the Regional Admin-

istrator on June 23, 1978, 43 FR 27208.

The Administrator is approving the

portion of the revision to regulation X

relating to the Fort Martin and Mitchell

Power Plants. The basis for his approval

is the modeling study performed by EPA

which demonstrated adequate protection of

the National Ambient Air Quality Standards

for Sulfur Dioxide.

x *

For the portion of the revision re-

lating to the Harrison power plant, the

Administrator approves the interim emis-

sion limitation as submitted by the Gov-

ernor on September 13, 1978. The emission

limitation of 5.12 lbs SO.,/10 Btu wiil

remain in effect for a periéd of 1 year or

until such time as the final regulations

for section 123 are finalized, whichever

is the shorter period of time. After the

section 123 regulations are finalized,

West Virginia will apply them and deter-

mine whether a different emission limi-

tation is authorized for Harrison. Upon

making this determination, West Virginia

will submit an emission limitation to the

EPA for review and public comment as a

proposed SIP revision. If the section 123

regulations are not finalized in a timely

manner, or if West Virginia does not sub-

mit a proposed SIP revision to EPA by a

date sufficient to allow review, public

comment, and final action before the end

of the one-year period, EPA will require

West Virginia to amend its SIP to provide

an emission to be effective after the one-

year period.

x *« &

Finally, the Administrator approved

all administrative changed of regulation

Dated: October 31, 1978

(Authority: 42 U.S.C. 7410 and 7601)

DOUGLAS M. COSTLE

Administrator

Part 52 of title 40, Code of Federal

Regulations is amended as follows:

Subpart XX - West Virginia

1. The section 52.2520, paragraph

§ 52.2520. Identification of plan.

were submitted on the date specified * * *

(9) Amendments to regulation X (to

prevent and control air pollution from the

emission of sulfur oxides) §§ 2.07

(added), 2.08 (former section 2.07), 2.09

(added), 3.0l(a), 3.02, 3.03(a) (sections

3.01(b) and 3.03(b) are deleted), 3.05,

3.06 through 3.08 (added), 5.01, 6.01, 10

(added) and 11 (former section 10) of the

West Virginia Administrative Regulations;

submitted on January 25, 1978 (as amended

September 13, 1978), by the Governor.

2. In § 52.2522, subsection (b) is

added as follows:

-46-

§ 52.2522. Approval status.

(a) * * #

(b) The Administrator approves the

deletion of the provisions found in §

3.03(b) of regulation X except as it

applies to the Rivesville plant,

Monongahela Power Co.

3. Section 52.2525 is added as fol-

lows:

§ 52.2525. Control Strategy; Sulfur

dioxide.

(a) The provisions of § 51.1]3{e) are

not met because the State did not ade-

quately demonstrace that the deletion of

§3.03(b) of West Virginia regulation X as

it applies to the Rivesville plant would

not interfere with attainment and main-

tenance of the national ambient air qual-

ity standard.

{FR Doc. 78-31604 Filed 11-8-78; 8:45

a.m.]

o47@

APPENDIX D

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

44 Fed. Reg. 64439 (November 7, 1979)

[FRL 1352-7]

Proposed Revision of the West

Virginia State Implementation Plan

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

SUMMARY: On November 9, 1978, the Admin-

istrator approved as a revision of the

West Virginia State Implementation Plan

(SIP), amendments to the Commonwealth's

Regulation X dealing with sulfur dioxide

(SO.) emissions from electric power gen-

erating plants, in response to petitions

for review to the Third Circuit Court of

Appeals. EPA has reconsidered the air

quality impact of the revised emission

limits for two power stations affected by

the amendments. On the basis of its re-

consideration, EPA now proposes to approve

the revision.

DATE: Comments must be submitted on or

before December 7, 1979.

FOR FURTHER INFORMATION CONTACT: Mr.

William Belanger (3AH13), Air Programs

Branch, U.S. Environmental Protection

Agency, Region III, Curtis Building, 10th

Floor, 6th and Walnut Streets, Phila-

delphia, PA 19106; phone (215) 597-8188.

SUPPLEMENTARY INFORMATION: On November 9,

1978, (43 FR 52239) the Administrator ap-

proved as a revision to the West Virginia

SIP, amendments to the Commonwealth Regu-

lation X, which deals with sulfur dioxide

-48-

emissions from electric power plants.

Among other actions, the revisions would

allow increases in emissions from the

Harrison and Mitchell generating stations.

The approval was based on the deter-

mination by EPA that the relaxation of

emission limitations would not interfere

with attainment or maintenance of the Na-

tional Ambient Air Quality Standard for

sulfur dioxide. This determination was

based on air pollution modeling conducted

by EPA. This modeling incorporated an

analysis of the Harrison plant based on a

"Good Engineering Practice" stack height

as mandated by Section 123 of the Clean

Air Act, but he approval of the limitation

for the Harrison plant was for a period of

one year, or until EPA promulgated final

regulations implementing Section 123,

whichever came first.

On January 3, 1979 and January 5,

1979, the Commonwealth of Pennsylvania and

the Council of Senior West Virginians, et

al., filed in the U.S. Court of Appeals

for the Third Circuit petitions for review

of EPA's final rulemaking action of No-

vember 9, 1978. On July 9, 1978, EPA re-

quested the Court remand to the agency two

issues raised by the petitioners. EPA

sought to reconsider the air quality im-

pact of the revised emission limitations

for the Harrison and Mitchell stations in

light of all meteorological data avail-

able, and to consider the impact of

Harrison on the Prevention of Significant

Deterioration (PSD) increments. The Court

granted EPA's motion on July 10, 1979, and

stayed further action pending EPA's re-

assessment of its earlier action. EPA

agreed to propose a rule governing these

power stations by October 8, 1979. Due to

difficulties in completing its analysis,

EPA requested and received from the court

-49-

an extension to November 7, 1979. In ad-

dition, West Virginia asked EPA to propose

a permanent emission limit for’ the

Harrison station as final regulations

under Section 123 have not been issued.

EPA has conducted new modeling for

the Harrison and Mitchell plants. The

modeling was conducted utilizing the

CRSTER Model for areas within 50

kilometers of the plants and two

independent approaches for the Class 1 PSD

areas which are more distance. A formal

statistical analysis was performed to

account for fuel variability as a means of

realistically evaluating the impact of the

plant in light of the uniquely extensive

record of meteorological conditions during

nine years. The results of the modeling

shows no expected violations of any of the

so air quality standards during the

uséful life of the plants. The modeling

also shows that the Harrison plant will

consume less than the available PSD

increment. Modeling was also performed

for receptors within the Commonwealth of

Pennsylvania and it was found. that

emissions from the plants will not prevent

attainment of the sO standards in

Pennsylvania. All modeling for the

Harrison station assumed good engineering

practice stack height, and EPA proposes to

make the proposed Regulation X amendments

permanent.

This notice is to announce the re-

sults of the new modeling, and to provide

a 30-day comment period before it is de-

cided whether to approve the earlier re-

visions to Regulation X (previously ap-

proved November 9, 1978) concerning the

Mitchell and Harrison power stations as a

revision to the West Virginia State Imple-

mentation Plan. Therefore, the public is

invited to submit to the address stated

-50-

above, comments on whether to approve this

proposed rule as a revision of the West

Virginia State Implementation Plan.

The Administrator's decision to ap-

prove or disapprove the proposed revision

will be basec on whether the amendments

meet the requirements of section 110 (a) (2)

of the Clean Air Act and 40 CFR Part 5l,

Requirements for Preparation, Adoption,

and Submittal of Implementation Plans.

Under Executive Order 12041, EPA is

required to judge whether a regulation is

"significant" and therefore subject to the

procedural requirements of the order or

whether it may follow other specialized

development procedures. EPA labels these

and other regulations as “specialized”. I

have reviewed this regulation and deter-

mined that it is a specialized regulation

not subject to the procedural requirements

of Executive Order 12044.

{42 U.S.C. 7401-7642]

Dated: October 29, 1979

Alvin R. Morris,

Acting Regional Administrator

[FR Doc. 79-34447 Filed 11-6-79; 8:45

a.m. ]

-§l-

APPENDIX E

[A-3-FRL 1662-3]

44 Fed. Reg. 74478 (November 10, 1980)

Approval of Revision of the State

of West Virginia Implementation Plan

AGENCY: Environmental Protection Agency.

ACTION: Final Rule.

SUMMARY : On November 9, 1978, (43 FR

52239) the Administrator approved as a

revision to the West Virginia State

Implementation Plan (SIP), amendments to

the State's Regulation xX dealing with

sulfur dioxide (SO,.) emissions from

electric power genefating plants. In

response to petitions for review in the

United States Court of Appeals for the

Third Circuit, EPA reconsidered the air

quality impacts of the revised emission

limitations for two of the power stations

affected by the revisions. On November 7,

1979, [44 FR 64439] on the basis of its

reconsideration, EPA proposed to approve

again the emission limitations for the two

power plants as adequate to ensure

attainment and maintenance of the primary

national ambient air quality standard for

SO.. EPA has determined, however, that

thése limitations are not adequate to

ensure attainment and maintenance of the

secondary national ambient air quality

standard for SO... In a separate notice

published elsewfiere in today's Federal

this plan deficiency and requiring the

-52-

State within nine months to submit a con-

trol strategy that demonstrates attainment

and maintenance of the secondary SO. stan-

dard. 2

EFFECTIVE DATE: December 10, 1980.

x * ek

FOR FURTHER INFORMATION CONTACT:

Mr. William Belanger, Air Programs Branch

(3AH13), U.S. Environmental Protection

Agency, Region III, Curtis Building, 6th

and Walnut Streets, Philadelphia, PA

19106, telephone (215) 597-8188.

SUPPLEMENTARY INFORMATION:

I. Background

West Virginia amended its Air Pollu-

tion Control Commission Regulation xX,

sulfur dioxide (SO.,.) emission controls for

power plants, and” submitted the amended

regulation to EPA in January, 1978;

further amendments were submitted during

the course of the year. EPA approved most

of the changes, 43 FR 52239 (November 9,

1978). In January, 1979, the Commonwealth

of Pennsylvania and six citizens'

organizations petitioned the United States

Court of Appeals for the Third Circuit to

review EPA's approval so far as it applied

to the Mitchell and Harrison power

stations. In response to these petitions,

EPA reviewed the record of its action and

at EPA's request the Court remanded two

issues to EPA for reconsideration;

dispersion modelling of the air quality

impact of emissions from the two power

stations, and an analysis of the impact of

the Harrison station emissions on maximum

allowable increases ("increments") under

EPA's regulations for the prevention of

significant degradation of air quality

-53-

("PSD"). The Court allowed the revisions

to remain in effect while EPA reviewed

these two issues.

The SO. emission limit for the Harri-

son station’was an interim limit effective

until November 8, 1979, or until EPA

promulgated final regulations concerning

credit for tall smokestacks, whichever

occurred first. 42 U.S.C. 7423. As EPA

has not promulgated such regulations, the

interim Harrison limitation would have

expired during the remand period; FPA

therefore extended Harrison's interim

emission limit until such time as EPA

adopts a permanent limit. 45 FR 39253

(June 10, 1980).

On November 7, 1979, EPA proposed to

reapprove the Regulation X amendments re-

manded to it for reconsideration. On the

basis of its review and consideration of

comments submitted to it EPA today takes

final action to approve’ those amendments

as a revision of West Virginia's SIP for

attainment and maintenance of the primary

national ambient air quality standards

("NAAQS") for SO..

EPA's reviéw found, however, that

West Virginia's control strategy does not

demonstrate attainment and maintenance of

the secondary SO. standard. Dispersion

modelling using the CRSTER model with the

most recent five years of meteorological

data predicted a violation of the three-

-hour secondary so standard under

meteorological conditions which occurred

in one of those years. As a result, the

State's control strategy is not adequate

to ensure attainment of the secondary SO

standard. In a separate notice in today'

Federal Register, EPA is informing the

State of this deficiency. EPA is also

calling on the State to submit within nine

months either a revision of its control

-54-

strategy or a demonstration that the

current control strategy is adequate to

protect the secondary SO. standard. If

the State determines at additional

emission limitations are needed to protect

the secondary SO. NAAQS, the State must

also prescribe a“ schedule for compliance

with the new limits within a reasonable

time.

Section 110(a) (2) (A) of the Clean Air

Act and EPA regulations require that a

compliance schedule provide for attainment

of the secondary standard within a reason-

able period of time. EPA regulations pro-

vide that a state may consider social,

economic and technological factors in de-

termining a reasonable schedule for

attainment of secondary standards. 40 CFR

51.13 (b) (1979).

EPA is aware that the State and the

representa::ives of the utility owners,

coal companies and coal mines have alleged

that severe social and economic disruption

will occur if the power stations are re-

quired to reduce their emissions below the

levels approved today as adequate for pri-

mary standard attainment. The agency

recognizes that some methods of attaining

the secondary SO standard, such as

switches to low sulfur coal, could result

in localized job losses in the coal mining

industry and related businesses. If the

State determines that additional emission

limitations are necessary to demonstrate

attainment of the secondary SO. standard,

EPA encourages the State to taKe into ac-

count potential adverse employment effects

when establishing a compliance schedule to

carry out any necessary secondary SO

standard control strategy, and to considef

control strategies and compliance sched-

ules that will avoid or minimize social

and economic disruption. If desired by

-55-

the State, EPA personnel will work with

the State to develop approaches that en-

sure secondary SO standard attainment

within a reasonable time while minimizing

any adverse employment impacts.

II. Control Strategy Demonstration

In its November 7, 1979, notice pro-

posing approval of this revision, EPA

noted that its original action and

proposed reapproval were based on its

conclusion that the one modelled violation

of the secondary SO standard was so

unlikely to occur that the violation

should not be used as a base _ for

establishing emission limitations for the

power plants. EPA's evaluation of the

probability of the violation was based on

a statistical analysis that related worst

case meteorology to sulfur variability in

coal and calculated the likelihood that

worst-case meteorology would coincide with

worst-case sulfur content.

EPA has since concluded that the use

of such statistical techniques should be

evaluated for general Agency use and sub-

ject to public comment before being used

by the Agency to analyze SIP revisions.

Since the Agency has not yet completed

review of statistical methodologies for

general use, it has determined that it

would be inappropriate to approve the in-

stant revision based on a statistical

analysis. Under the Agency?s current

policy and modelling guidelines, the

State's control strategy does not demon-

strate attainment and maintenance of the

secondary so, standard.

VI. Final Action

-56-

The Administrator approves the above-

-described amendments of West Virginia's

Air Pollution Control Commission Regu-

lation X as a revision to the State's

Implementation Plan to attain and maintain

the primary national ambient air quality

standard for sulfur dioxide.

Under Section 307(b)(1) of the Clean

Air Act, judicial review of this action is

available only by the filing of a petition

for review in the United States Court of

Appeals for the appropriate circuit within

60 days of today. Under Section 307 (b) (2)

of the Clean Air Act, the requirements

which are the subject of teday's notice

may not be challenged in civil or criminal

proceedings to enforce these requirements.

The Administrator has reviewed this

regulation and determined that it is a

specialized regulation not subject to pro-

cedural requirements for significant regu-

lations under Executive Order 12044.

(42 U.S.C. 7401-642)

Dated: October 31, 1980.

Douglas M. Costle,

Administrator

Note: - Incorporation by reference of

the West Virginia State Implementation

Plan was approved by the Director of the

Federal Register on July l, 1980.

Part 52 of Title 40, Code of Federal

Regulations is amended as follows:

Subpart XX - West Virginia

1. Section 52.2520, paragraph

§ 52.2520 Identification of plan.

xke

were submitted on the dates specified.

x * &

(3) Amended Sections 3.01(2) and

3.03(1) of Regulation X (to prevent and

control air pollution from the emission of

sulfur oxides), submitted on January 25,

1978 and amended September 13, 1978 by the

Governor.

2. Section 52.2522 Approval status.

x kk

(e) The Administrator approves the

amended Sections 3.01(2) and 3.03(1) of

West Virginia Air Pollution Control Com-

mission Regulation X submitted January 25,

1978 and amended September 13, 1978, as a

plan for attainment of the primary SO

NAAQS. The Administrator does not apprové

the State's control strategy for attain-

ment and maintenance of the secondary SO

NAAQS submitted on those dates, so far af

it applies to the Mitchell and Harrison

power stations.

[FR Doc. 80 - 35060 Filed 11-7-80; 8:45

a.m. ]

Office - Supreme Court, U.S.

FILED

FEB 19 1962

No. 81-1361 ALEXANDER L. STEVAS.

in the Supreme Court of the

Unjted States

October Term, 1981

STATE OF WEST VIRGINIA, ex rel. AIR POLLUTION

CONTROL COMMISSION,

Petitioner-Appellant

ANN GORSUCH, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent-Appellee

On Writ of Certiorari to the United States Court of Appeals

for the Third Circuit

OF RESPONDENT, ee ee OF PENN-

SYLVANIA, IN IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

DOUGLAS R. BLAZEY

Chief Counsel

THOMAS Y. AU*

JOHN C. DERNBACH

Assistant Counsel

Pennsylvania Department of

gee ay

unsel for Respondent

*Counsel of Record

Room 505 Executive House

P. O. Box 2357

Harrisburg, Pennsylvania 17120

Telephone: (717) 787-7060

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244

Question Presented

QUESTION PRESENTED

1. Does the U.S. Court of Appeals for the Third

Circuit have jurisdiction to review a final action of the Ad-

ministrator of the U.S. Environmental Protection Agency

revising the West Virginia state implementation plan under

the Clean Air Act, 42 U.S.C. §7607 (b) (1), where the Act

states that the action may be reviewed in the “appropriate

circuit’?

ADDITIONAL PARTIES TO CASE BELOW

Appalachian Power Company

Council of Senior West Virginians

Group Against Smog and Pollution, Inc.

Monongahela Power Company

Monongahela County Citizens for Clean Air

Mountain Community Union

Ohio Power Company

State of West Virginia

West Virginia Citizens Action Group, Inc.

West Virginia Highlands Conservancy, Inc.

“ram mon se >

TABLE OF CONTENTS

PAGE

ee eae cbs chic debe eee’s i

Additional Parties to Case Below .............. i

wan fs onde bb ean wee ee ii

I Ts wlndaiic dank ccs sais tdsetpekae 1

RE CEE RR ace Ng aA PR eRe antic 1

Statutory and Constitutional Provision Involved .. 2

SEE IIE rod bd cc bc ccbacwadssedes 4

Argument:

The Third Circuit Was the Appropriate Cir-

cuit To Review the EPA Action ......... 6

I. This issue of the “appropriate circuit” is

F WY CN hs ch abs Sc ccc dv cedic tics

II. Venue is appropriate in the Third Circuit 7

III. The first petition for review of EPA’s ac-

tion in this matter was filed in the Third

EE sd ee ds bos cohen ata ke aes 9

IV. West Virginia had alleged no compelling

reason to transfer this case to another circuit 10

TABLE OF CITATIONS

CASES:

BASF Wyandotte Corp. v. Costle, 582 F.2d 108

EEE epee C4caeh+ oes Uae 2 9,10

Dayton Power and Light Co. v. Environmental Pro-

tection Agency, 520 F.2d 703 (6th Cir. 1975) 8

Federal Power Commission v. Texaco, 377 U.S.

es See. Sf age eae oe ee 7

Harrison v. PPG Industries, 446 U.S. 578 (1980) 7

Natural Resources Defense Council v. Environmen-

tal Protection Agency, 475 F.2d 968 (D.C.

Ai ee oe 6s ia didi eho te « 8

Panhandle Eastern Pipe Line Co. v. Federal Power

Commission, 324 U.S. 635 (1945) ..... tes 7

MISCELLANEOUS:

Clean Air Act:

Section 307(b) (1), 42 U.S.C. Sec. 7607 (b)

ES SESS ee ee 2, 6, 7, 8, 11

OE Fe MR POSTS acsincc cede ccc ccccccsvcene 4

H. R. Rep. No. 294, 95th Cong., Ist Sess. 324

Cee eee Bats os eets cebdees 6,7

Opinions Below and Jurisdiction 1

OPINIONS BELOW

The Judgment Order of the United States Court of

Appeals for the Third Circuit, dated September 22, 1981,

did not contain an official court opinion. The text of that

order is reprinted in the Petition for Writ of Certiorari at

Appendix A.

JURISDICTION

The Judgment Order of the United States Court of

Appeals for the Third Circuit was entered on September

22, 1981. The State of West Virginia filed a petition for

rehearing, which was denied on October 21, 1981.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1), by the Petition for Writ of Certiorari filed by

the State of West Virginia. The Commonwealth of Penn-

sylvania received the Petition for Writ of Certiorari on

January 20, 1982.

The jurisdiction of the United States Court of Appeals

for the Third Circuit, below, was invoked to review a final

action of the U.S. Environmental Protection Agency by the

timely filing of petitions for review under Section 307 (b)

of the Clean Air Act, 42 U.S.C. §7607 (b).

2 Statutory and Constitutional Provision

Involved

STATUTORY AND CONSTITUTIONAL PROVISION

INVOLVED

Section 307 (b) (1) of the Clean Air Act, 42 U.S.C.

§7607 (b) (1) , provides:

GENERAL PROVISIONS RELATING TO ADMINISTRA-

TIVE PROCEEDINGS AND JUDICIAL REVIEW

* * *

307 (b) (1) ... A petition for review of the Ad-

ministrator’s action in approving or promulgating any

implementation plan under section 110 or section 111

(d), any order under section 111(j), under section

112(c), under section 113(d), under section 119, or

under section 120, or his action under section 119 (c)

(2) (A), (B), or (C) (as in effect before the date of

enactment of the Clean Air Act Amendments of 1977)

or under regulations thereunder, or any other final

action of the Administrator under this Act (including

any denial or disapproval by the Administrator under

title 1) which is local or regionally applicable may be

filed only in the United States Court of Appeals for

the appropriate circuit. Notwithstanding the proceed-

ing sentence a petition for review of any action re-

ferred to in such sentence may be filed only in the

United States Court of Appeals for the District of Col-

umbia if such action is based on a determination of

nationwide scope or effect and if in taking such action

the Administrator finds and publishes that such action

is based on such a determination. Any petition for

Statutory and Constitutional Provision 3

Involved

review under this subsection shall be filed within sixty

days from the date notice of such promulgation, ap-

proval, or action appears in the Federal Register, ex-

cept that if such petition is based solely on grounds

arising after such sixtieth day, then any petition for

review under this subsection shall be filed within sixty

days after such grounds arise.

* * *

4 Statement of the Case

STATEMENT OF THE CASE

This case commenced when the Commonwealth of

Pennsylvania and the Council of Senior West Virginians,

Inc. et al. filed separate petitions for review of a U.S. En-

vironmental Protection Agency (“EPA’’) action approving

revisions to the West Virginia state implementation plan.

These petitions to review were filed on January 5, 1979,

before the U.S. Court of Appeals for the Third Circuit.

These two petitions were consolidated by the Court into a

single proceeding.

The State of West Virginia requested leave to inter-

vene, and was granted status as an intervenor on August 24,

1979. West Virginia did not raise any question of juris-

diction of the Third Circuit to decide the matters before it

at that time or at any time prior to the filing of its final brief

on January 30, 1981. Various motions were heard and

decided by the Third Circuit in the intervening period.

EPA requested a voluntary remand in the case to re-

view certain matters. The Third Circuit granted its motion.

On November 10, 1980, EPA repromulgated its final

action on the West Virginia state implementation plan. 45

Fed. Reg. 74478 (Appendix E of Petitioner’s Writ for

Certiorari). To insure the Third Circuit’s continuing re-

view of the November 10 action, the Commonwealth of

Pennsylvania filed another petition for review on Decem-

ber 1, 1980 in the Third Circuit. West Virginia’s petition

for review of the same November 10 action was not lodged

in the Fourth Circuit until December 29, 1980.

Statement of the Case 5

The U.S. Court of Appeals for the Fourth Circuit

transferred West Virginia’s petition for review to the Third

Circuit, where it was decided on September 22, 1981.

West Virginia now claims that the Third Circuit had no

jurisdiction to decide the matter.

6 Argument

ARGUMENT

THE THIRD CIRCUIT WAS THE APPROPRIATE CIR-

CUIT TO REVIEW THE EPA ACTION

West Virginia’s position is based on a fundamental

misconception of the difference between jurisdiction and

venue. West Virginia is actually complaining about venue

rather than jurisdiction, and the relevant law concerning

venue in appellate courts strongly supports the appropriate-

ness of a decision on the merits by the U.S. Court of Ap-

peals for the Third Circuit.

I. This Issue of the “Appropriate Circuit” Is a Venue

Issue

Section 307 (b) (1) of the Act, 42 U.S.C. §7607, pro-

vides that a petition for review of any state implementation

plan or plan revision by EPA which is “locally or regionally

applicable may be filed only in the United States Court of

Appeals for the appropriate circuit.”’

The legislative history of the Clean Air Act makes it

plain that the appropriateness of any particular circuit to

decide a case is merely a question of venue. The House

Committee observed in drafting the language that it was

relying on recommendations of the Administrative Confer-

ence of the United States dealing with venue. H.R. Rep.

No. 294, 95th Cong., Ist Sess. 324 (1977). Under certain

circumstances, the report added, “‘exclusive venue” is only

in the D.C. Circuit. The U.S. Supreme Court has also char-

Argument 7

acterized the demarcation of the D.C. Circuit and the other

federal circuits in Section 307(b) as a venue question.

Harrison v. PPG Industries, 446 U.S. 578 (1980).

When a statute such as this one invests all federal

courts of appeal with the power to review orders or rules

of an administrative agency, an objection to review by a

particular appellate court is one of venue rather than juris-

diction. Panhandle Eastern Pipe Line Co. v. Federal Power

Commission, 324 U.S. 635, 638-39 (1945) ; Federal Power

Commission v. Texaco, 377 U.S. 635, 638-39 (1964).

II. Venue Is Appropriate in the Third Circuit

The language of the Clean Air Act, the legislative his-

tory and the existing case law interpreting Section 307 of

the Act all demonstrate that venue in the Third Circuit is

appropriate for this case. The House Report explains that

the Act:

provides for essentially locally, statewide, or region-

ally applicable rules or orders to be reviewed in the

U.S. court of appeals in which such locality, State, or

region is located.

H.R. Rep. No. 294, at 323. As the District of Columbia

Court of Appeals concluded, interpreting almost identical

language in the 1970 Clean Air Act:

[B]y the phrase ‘the appropriate circuit’ Congress did

not intend that all suits involving approval of state im-

plementation plans be brought in the judicial circuit

where the state is located. Instead, Congress intended

to adopt a flexible approach to determine which cir-

cuit is appropriate. .. .

8 Argument

Natural Resources Defense Council v. Environmental Pro-

tection Agency, 475 F.2d 968, 969 (D.C. Cir. 1973). The

D.C. Circuit drew its conclusion for two reasons. First,

unlike other provisions in the 1970 Act, which provided

judicial review of certain actions in the court of appeals for

the circuit including the state, Section 307 (b) (1) refers

more broadly to the “appropriate circuit.” In Dayton Pow-

er and Light Co. v. Environmental Protection Agency, 520

F.2d 703, 707 (6th Cir. 1975) , the Court noted:

By the phrase ‘the appropriate circuit’ Congress did

not intend that all suits involving approval of state

implementations plans be brought in the judicial cir-

cuit where the state is located. 520 F.2d at 707.

Second, EPA decisions concerning metropolitan air quality

control regions such as the District of Columbia affect

more than one circuit (i.e., the D»C. and Fourth Circuits) .

Plainly, the court concluded, Congress did not intend re-

view of air quality plans for that metropolitan area to occur

in both circuits. Natural Resources Defense Council v. En-

vironmental Proteciion Agency, supra, 745 F.2d at 969.

Contrary to West Virginia’s argument, then, the Third

Circuit may decide this case even though that state is not

included within the boundaries of the Third Circuit. As

long as the issue is of regional significance, venue is ap-

propriate in any circuit containing part of that region.

Since there has been dispute throughout this litigation con-

cerning the air quality impacts of the West Virginia plants

in Pennsylvania, the Third Circuit is an appropriate forum.

Venue is appropriate in the Third Circuit in this case

because the Third Circuit includes the locale where the

emissions from West Virginia impact, includes the state of

Argument 9

two of t! . Petitioners below (the Commonwealth and The

Group Against Smog and Pollution) , and includes the EPA

Regional Office where the decisions were made and where

the rulemaking record is lodged.

Ill. The First Petition for Review of EPA’s Action in

This Matter Was Filed in the Third Circuit

Where more than one circuit is available for judicial

review of an agency action, and petitions have been filed

in more than one circuit, the circuit in which the petition

was first filed has venue. 28 U.S.C. §2112(a). The pur-

pose of §2112(a) is to save time and expense, to facilitate

review of agency decisions, and to save the time of the ap-

pellate courts. BASF Wyandotte Corp. v. Costle, 582 F.2d

108 (ist Cir. 1978). The “first-in-time” rule can be ap-

plied mechanically to avoid confusion and duplication by

the courts.

In this case, petitions for review were filed in the

Third Circuit long before any were filed in the Fourth Cir-

cuit. On January 5, 1979 the Commonwealth of Pennsyl-

vania filed a petition for review in the Third Circuit of

EPA’s November 9, 1978 action.

After EPA promulgated another final action on No-

vember 10, 1980, the Commonwealth of Pennsylvania filed

another petition for review before the Third Circuit on De-

cember 1, 1980. West Virginia’s petition for review of the

same action in the Fourth Circuit was not filed until Decem-

ber 29, 1980. Since petitions were filed in the Third Cir-

cuit long before any petition was filed in the Fourth Circuit

by the State of West Virginia, the Third Circuit was the

appropriate forum for a decision on the merits.

10 Argument

IV. West Virginia Had Alleged No Compelling Reason

To Transfer This Case to Another Circuit

Although §2112(a) does permit an appellate court to

transfer a case to another circuit “for the convenience of

the parties in the interest of justice,” notwithstanding the

first-in-time rule, transfers should be granted only for com-

pelling reasons. BASF Wyandotte Corp. v. Costle, 582

F.2d 108 (ist Cir. 1978). It is significant, in this regard,

that West Virginia provided no arguments below concern-

ing the convenience of the Fourth Circuit as a forum. On

the contrary, there were substantial reasons of convenience

for retaining jurisdiction in the Third Circuit.

Argument 11

CONCLUSION

The grant of jurisdiction to the U.S. Courts of Appeals

under 42 U.S.C. §7607 (b) (1) to review actions of the U.S.

Environmental Protection Agency provides discretion to

the courts in the exercise of jurisdiction. The U.S. Court

of Appeals for the Third Circuit properly concluded that

it had jurisdiction and venue to decide the petitions for re-

view. Accordingly, the Petition for Writ of Certiorari filed

by the State of West Virginia should be denied.

Respectfully submitted,

FOR THE COMMONWEALTH

OF PENNSYLVANIA, DEPARTMENT

OF ENVIRONMENTAL RESOURCES

By Counsel:

DouGLas R. BLAZEY

Chief Counsel

THOMAS Y. AU

Assistant Counsel

JOHN C. DERNBACH

Assistant Counsel

-Yoq!soddg_

Supreme Court, U.S.

FILED

No. 81-1361 APR eZ 1962

Lstevas.

a aa Gena” ~

OCTOBER TERM, 1981

STATE OF WEST VIRGINIA, EX REL.

AIR POLLUTION CONTROL COMMISSION, PETITIONER

ANNE GORSUCH, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Rex E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

DONALD W. STEVER, JR.

Attorney

ROBERT M. PERRY Department of Justice

General Counsel * Washington, D.C. 20580

Lyp1a N. WEGMAN (202) 633-2217

Assistant General Counsel

CATHERINE A. COTTER

Attorney

United States Environmental

Protection Agency —

Washington, D.C. 20460

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals

for the Third Circuit is an “appropriate circuit”,

within the meaning of Section 307(b)(1) of the

Clean Air Act, to review action of the Administrator

concerning revisions of the West Virginia State Im-

plementation Plan, where the principal issue raised

is the effect of the revisions on air quality in

Pennsylvania.

2. Whether the Administrator’s disapproval of one

aspect of the proposed revisions because of the fail-

ure to demonstrate that the national secondary am-

bient air quality standard would be attained and

maintained was arbitrary and capricious.

3. Whether the Administrator’s explanation of his

decision to disapprove a portion of the proposed re-

visions was adequate.

(1)

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

BASF Wyandotte Corp. v. Costle, 598 F.2d 637......

Chrysier Corp. Vv. Department of Transportation,

I a aa tie

Cincinnati Gas & Electric %o. v. “EPA, 578 F.2d

RECT ES CEE Leen ee ae

Cleveland Electric Illuminating Co. v. EPA, 572

F.2d 1150, cert. denied, 439 U.S, 910 -................

International Harvester Co. v. Ruckelshaus, 478

F.2d 615 PE Ae aS SOE

Jenkins v. Anderson, 447 US. x_n

Ohio Environmental Council v. EPA, 593 F.2d 24..

Peabody Coal Co. v. EPA, 522 F.2d 1152 ................

Portland Cement Association v. Ruckelshaus, 486

— IRREE SS NOLEN: SEE EEE OT Ce OO

Public Service Commission for New York v. Fed-

eral Power Commission, 472 F.2d 1270 ..............

Train V. Natural Resources Defense Council, 421

U. EAE eee ene ae

United States v. LA. Tucker Truck Lines, 344

US. $8 ... a laa ee

(mI)

Page

ao NUN NOUS

Statutes and regulations: Page

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

Section 107, 42 U.S.C. (Supp. III) 7407...... 2

Section 107(a), 42 U.S.C. (Supp. III) 7407

ED iaesinintapesetiinsiddatinniainbiennanaticaepinennmbtbiviniesies 2

Section 110, 42 U.S.C. (Supp. III) 7410...... 6

Section 110(a) (2), 42 U.S.C. (Supp. ITI)

ia aia aliaheainaais

Section 110(a) (2) (A), 42 U.S.C. (Supp. ITI)

|) Ee Sees 2,3, 12

Section 110(a) (2) (E), 42 U.S.C. (Supp. ITT)

AEE ES RES SESE Sees eee ree 2

Section 165, 42 U.S.C. (Supp. III) 7475........ 2

Sections 165-169, 42 U.S.C. (Supp. II) 7475-

ERE a Oe <a one ne 3

Section 172, 42 U.S.C. (Supp. III) 7502........ 3

Section 304(c) (1), 42 U.S.C. (Supp. III)

RN EES Sc onnnewe ertvnEnomTn§

Section 307(b), 42 U.S.C. (Supp. III) 7607

GD ceenscccacecsscnecasnssescsveeasesors 2,

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

NTI San 5. dailies datccnshidcereetieaninaiiiaianaciennaaiiasanngts 6,

Federal Water Pollution Control Act, 33 U.S.C.

1369(b) (1) (D) -..... snenessenbnienennetennenssetenantnoites 8-9

Pie TD qecceetresceesccvesccvncaccnssveqrevensenestsvnsioones 5, 8

GD Bae II. ccneectetresnntnenssaqnosnenecenserecsessnasemvepammminess 2

Miscellaneous:

43 Fed, Reg. 52239-52240 (1978) -.........--...----..-.-- 3-4

44 Fed. Reg. (1979):

~~ Soa an 5,9

In the Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-1361

STATE OF WEST VIRGINIA, EX REL.

AIR POLLUTION CONTROL COMMISSION, PETITIONER

Vv.

ANNE GORSUCH, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals , Pet.

App. 37-38) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on September 22, 1981 (Pet. App. 37-38). A timely

petition for rehearing was denied on October 21, 1981

(Pet. App. 39-40). The petition for a writ of cer-

tiorari was filed on January 18, 1982. The jurisdic-

tion of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATUTES INVOLVED

Sections 107, 110(a)(2) and 307() of the Clean

Air Act, 42 U.S.C. (Supp. III) 74 7, 7410(a) (2)

and 7607(b) are set out at Pet. 3-9.

STATEMENT

1. Under the Clean Air Act, the states are en-

couraged to develop programs to assure attainment

and maintenance of both primary and secondary na-

tional ambient air quality standards; the Environ-

mental Protection Agency is directed to assure that

such programs meet the relevant requirements of

the Act. See Union Electric Co. v. EPA, 427 US.

246 (1976); Train v. Natural Resources Defense

Council, 421 U.S. 60 (1975). While the states have

primary responsibility for fashioning plans to meet

the federal goals under Section 107(a), 42 U.S.C.

(Supp. III) 7407(a), EPA reviews each state plan

or plan revision to assure that it meets the criteria

set forth in Section 110(a)(2), 42 U.S.C. (Supp.

III) 7410(a)(2), and that certain other require-

ments of the Act are met. See, e.g., Section 165, 42

U.S.C. (Supp. III) 7475.

The basic requirement is that the plan provide for

attainment and maintenance of national primary and

secondary ambient air quality standards. Section

110(a)(2)(A), 42 U.S.C. (Supp. III) 7410(a) (2)

(A). Another important criterion is that air pollu-

tion emissions in one state not interfere with attain-

ment and maintenance of national standards in other

states. Section 110(a) (2) (E), 42 U.S.C. (Supp. III)

7410(a) (2) (E).

EPA has established national primary and second-

ary ambient air quality standards for sulfur dioxide.

40 C.F.R. 50.4 and 50.5. Under the Act, the states

must provide for attainment of the national primary

standard by December 31, 1982 and for attainment

of the national secondary standard within a “reason-

able time.” Sections 110(a)(2)(A), 172, 42 U.S.C.

(Supp. IIL) 7410(a) (2) (A), 7502.

2. The computer air quality dispersion model is

the principal means of analysis used to determine

whether emissions from a single air pollution source

or a group of sources will cause or contribute to a

violation of national ambient air quality standards

or will interfere with the prevention of significant

deterioration (PSD) in a clean air area.’ See C.A.

App. 1461.2. Dispersion models are mathematical

equations used to calculate expected ambient concen-

trations caused by pollution source emissions. Using

actual data, such as a plant’s fuel characteristics and

meteorological measurements, the model predicts am-

bient concentrations of a pollutant for an array of

points at various geographic distances from the plant.

See generally Cleveland Electric Illuminating Co. v.

EPA, 572 F.2d 1150, 1160 (6th Cir.), cert. denied,

439 U.S. 910 (1978). If the predicted values exceed

the standards, the plant’s emission limit must be

made more stringent. /bid.

3. On November 9, 1978, the Administrator of

EPA approved, with exceptions immaterial here, a

revision of Regulation X of the West Virginia State

Implementation Plan for sulfur dioxide (SO.) emis-

sions. The revision relaxed emission limits for

several power plants located in West Virginia, in-

cluding the Harrison and Mitchell power plants lo-

cated near the Pennsylvania border. The revision

permitted the power plants to burn fuels of a higher

1 Requirements respecting clean air areas are set forth in

Sections 165-169 of the Act, 42 U.S.C. (Supp. III) 7475-7479.

2“C.A. App.” refers to the joint appendix in the court of

appeals.

su!fur content than the existing state plan provisions

permitted (43 Fed. Reg. 52239-52240; Pet. App. 41-

47). Pennsylvania and a citizen group filed separate

petitions to review that action in the Third Circuit;

subsequently, the cases were consolidated. Common-

wealth of Pennsylvania v. EPA, Nos. 79-1025, 79-

1026. Petitioner and the affected power companies

intervened as respondents. The principal contention

of Pennsylvania and the citizen group involved EPA’s

evaluation of the impact of the revisions on air

quality in Pennsylvania and the agency’s PSD analy-

sis (C.A. App. 1464-1475).

At EPA’s request, the court remanded the case for

reconsideration in light of certain defects in the rec-

ord concerning the agency’s PSD analysis and in

light of the agency’s failure to explain why certain

meterological data had not been considered in its dis-

persion modeling analysis. On November 7, 1979,

EPA again proposed to approve the revisions that

affected the Harrison and Mitchell plants; EPA’s

proposed approval was based on an experimental

analytic technique involving a statistical analysis of

fuel variability over a nine year period for which

meteorological data were available (44 Fed. Reg.

64439-64440; Pet. App. 48-51).

Pursuant to a scheduling order of the court, on

November 10, 1980, EPA issued a final order ap-

proving the West Virginia revisions in part but dis-

approving the revision for the Harrison and Mitchell

plants. Based on approved modeling techniques, EPA

concluded that emissions from the Harrison and

Mitchell plants would violate the secondary standard;

accordingly, EPA required petitioner to revise its

implementation plan to ensure compliance (45 Fed.

Reg. 74478-74479; Pet. App. 52-58). EPA explained

that its initial decision approving the revision for the

plants was based on an experimental statistical

analysis of the variability of the sulfur content in

fuel, an analysis the agency decided it could not rely

on without further study and rulemaking (45 Fed.

Reg. 74479; Pet. App. 56; C.A. App. 1462).

Petitioner participated actively in the proceedings

before the Third Circuit from early 1979 through

December 1980 without questioning that court’s ju-

risdiction. Petitioner participated in two hearings

during this period, one in 1979 in connection with

EPA’s motion for a remand, and one in 1980 dealing

with EPA’s motion for more time to comply with the

court’s remand order. Petitioner submitted no com-

ments to EPA during the comment period preceding

the November, 1980 action.

Following EPA’s November, 1980 rulemaking, the

Third Circuit established a briefing schedule for the

pending cases. On December 1, 1980, the Common-

wealth of Pennsylvania filed a new petition in the

Third Circuit seeking review of EPA’s November

action. No. 80-2722. On December 29, 1980, peti-

tioner sought review of EPA’s November, 1980 ac-

tion in the Fourth Circuit, which transferred the

case to the Third Circuit. See 28 U.S.C. 2112(a).

Petitioner moved the Third Circuit to transfer both

cases to the Fourth Circuit, arguing that the Third

Circuit lacked jurisdiction over the subject matter.”

4. The court of appeals rejected the challenge to

its jurisdiction and upheld the Administrator’s No-

vember, 1980 action (Pet. App. 37-38).

* The principal issue presented in the consolidated cases

was Pennsylvania’s claim that EPA’s analysis gave inade-

quate consideration to the effects of long range transport of

pollutants into neighboring states. That issue is raised in

Commonwealth of Pennsylvania v. Gorsuch, No. 81-1524, be-

fore this Court.

ARGUMENT

1. Section 307(b)(1) of the Act provides in per-

tinent part as follows (42 U.S.C. (Supp. III)

7607 (b) (1) ; emphasis added) :

A petition for review of the Administrator’s ac-

tion in approving or promulgating an implemen-

tation plan under section 7410 of this title or sec-

tion 7411(d) of this title * * * or any other final

action of the Administrator under this chapter

(including any denial or disapproval by the Ad-

ministrator under subchapter I of this chapter)

which is locally or regionally applicable may be

filed only in the United States Court of Appeals

for the appropriate circuit.

Petitioner contends (Pet. 23-28) that review of the

Administrator’s action approving or disapproving as-

pects of a state implementation plan under 42 U.S.C.

(Supp. III) 7410 may be obtained only in the court

of appeals with geographic jurisdiction of the state

that submits the implementation plan, in this case,

the Fourth Circuit. Petitioner appears to concede

(Pet. 26) that regional action of the Administrator

that affects a geographic area within the jurisdiction

of more than one court of appeals can be challenged

in any one of them. Nonetheless, petitioner argues

that a different rule should govern challenges to ap-

proval or disapproval of state implementation plans.

We submit, however that except to the extent the

state submitting the implementation plan is also the

area where the impact of the Administrator’s actions

with respect to the plan will be felt, it is difficult to

understand why the identity of the submitting state

is even pertinent to the question of the “appropriate

circuit” for seeking review.

Generally, under Section 307(b)(1) it is the im-

pact of the Administrator’s action and not the iden-

tity of the state submitting the implementation plan

that determines “the appropriate circuit.” If the

Administrator’s action is “of nationwide scope or

effect,” the only “appropriate” court for seeking re-

view is the United States Court of Appeals for the

District of Columbia Circuit. 42 U.S.C. (Supp. III)

7607(b) (1). Local or regional action is reviewable

in the other courts of appeals. If approval or dis-

approval of a state implementation plan has no effect

outside the submitting state, the court of appeals with

geographic jurisdiction in that state is normally “the

appropriate circuit” for securing review within the

meaning of Section 307(b) (1). If, on the other hand,

the Administrator’s approval of a state implementa-

tion plan has effects in other states, there is no basis

for reading the provision to require that a petition

for review be filed in the court of appeals with ju-

risdiction in the state that submitted the plan. After

all, it is the Administrator’s action and not that of

the submitting state that is being challenged. If the

Administrator’s approval or disapproval of a state

plan affects a region comprising the geographic ju-

risdiction of two or more courts of appeals, any of

them may be “the appropriate circuit” for seeking

review.* When Congress intended to limit judicial

review to only one court, it did so explicitly. See,

*The legislative history cited by petitioner (Pet. 25-26)

only confirms this conclusion. It is the “U.S. Court of Appeals

for the Circuit in which the affected air quality control re-

gion, or portion thereof, is located” that is the appropriate

circuit for review of approval or promulgation of implementa-

tion plans. S. Rep. No. 91-1196, 91st Cong., 2d Sess. 41 (1970)

(emphasis added).

e.g., Section 304(c)(1), 42 U.S.C. (Supp. III)

7604(c) (1) (certain citizen suits respecting violation

of standards or limitations may only be brought in

the district in which the source is located).

Petitioner contends (Pet. 25-26) that in the con-

text of action approving or disapproving a state im-

plementation plan the phrase “regionally applicable”

in Section 307(b), refers to the legal enforceability of

the state plan. As noted above, however, it is the

Administrator’s action that is the subject of judicial

review, not the action of the submitting state. The

enforceability of the state plan does not determine the

impact of the Administrator’s action. The conse-

quences of the Administrator’s approval of a state

implementation plan may be significantly broader

than the state’s power to enforce its plan.

The Administrator’s action with respect to the SO.

revisions challenged in this case is “regionally ap-

plicable” because the sources are in West Virginia

and the air quality in other states, including Penn-

sylvania, may be affected. Accordingly, both the

Third and Fourth Circuits had jurisdiction to enter-

tain the petitions for review. Under 28 U.S.C.

2112(a), the Third Circuit obtained exclusive juris-

diction since the first petition challenging the agency

rule was filed in that circuit. Public Service Commis-

sion for New York vy. Federal Power Commission,

472 F.2d 1270, 1272 (D.C. Cir. 1972).°

5 Petitioner’s reliance (Pet, 24 & n.7) on Peabody Coel Co.

v. EPA, 522 F.2d 1152, 1153 (8th Cir. 1975), is curious and

clearly mistaken. The case arose under the Federal Water

Pollution Control Act, 33 U.S.C. 1251 et seg. The judicial re

view provision of that statute (33 U.S.C. 1369(b) (1) (D))

places jurisdiction to review agency action in the circuit in

2. Petitioner’s remaining arguments (Pet. 28-36)

are directed at EPA’s conclusion that the proposed

relaxation of the SO. requirements applicable to the

Harrison and Mitchell power plants would cause a

violation of the national secondary ambient air

quality standard.

Petitioner first argues (Pet. 28-32) that the Ad-

ministrator failed to explain adequately why he re-

versed his position on the use of the experimental

fuel variability analysis between November 7, 1979

and November 10, 1980, when the final rule was

promulgated.* In his November 7, 1979 proposal to

approve the revision, the Administrator specifically

noted that the approval was based on a “formal

statistical analysis * * * performed to account for

fuel variability * * * in light of the uniquely exten-

sive record of meteorological conditions” that was

available (44 “ed. Reg. 64440 Pet. App. 50; em-

phasis added). In the final rule disapproving the

revision as to the secondary SO. standard, the Ad-

ministrator clearly explained the nature of the statis-

tical analysis and why it could not be used to supple-

ment the modeling techniques required by EPA’s

established guidelines (45 Fed. Reg. 74479; Pet. App.

56). Thus, petitioner’s complaint is essertially that

the Administrator refused to rely or the experi-

mental analytic technique in lieu of EPA’s estab-

which the person challenging the action “resides or transacts

* * * business.” Further, the Eighth Circuit concluded that it

had jurisdiction under that provision, but decided to transfer

the petition to the circuit in which the effects of the govern-

ment action would be felt (522 F.2d at 1152, 1153); a similar

result is appropriate here.

* Petitioner failed to raise this argument in the court of

appeals. Accordingly, the argument need not be considered

in this Court. E.g., Jenkins v. Anderson, 447 U.S. 231, 234-

235 n.1 (1980).

lished standards and criteria." Compare BASF Wyan-

dotte Corp. v. Costle, 598 F.2d 637, 644-646 (1st Cir.

1979). That the final rule differed from the proposal

is of no consequence. See International Harvester Co.

v. Ruckelshaus, 478 F.2d 615, 632 & n.51 (D.C. Cir.

1973); see also Chrysler Corp. v. Department of

Transportation, 515 F.2d 1053, 1061 (6th Cir. 1975).

Petitioner’s other major argument (Pet. 33-35) is

that the Admiinstrator impermissibly relied upon

EPA’s modeling methodology for “Class A” meteoro-

logical stability, which, petitioner asserts, had been

invalidated by the court of appeals for the Sixth Cir-

cuit in Cincinnati Gas & Electric Co. v. EPA, 578

F.2d 660 (1978).* Petitioner’s arguments that (1) the

holding of the court of appeals below is inconsistent

with that of the Sixth Circuit and (2) the EPA uses

7 Several of the comments to the proposed rule had criticized

reliance on the novel statistical analysis (C.A. App. 1467,

1478). EPA’s supporting rationale document provided a de-

tailed discussion of the reasons for the final action (C.A. App.

1449-1450, 1461-1463).

® Diffusion models, such as the one employed by EPA to —

predict pollutant concentrations caused by the power plants

at issue, take into account thousands of bits of data. Meteor-

ological data are among the most important, and “stability

classes” are an aspect of meteorological data.

Stability classes are categorizations of the atmosphere’s

ability to disperse plumes. Atmospheric scientists divide them

into six categories, ranging from extreme dispersion (‘Class

A”) to minimum dispersion (“Class F”). Under Class A con-

ditions, a plume is expected to disperse rapidly to the ground

level before there is substantial dilution. This results in pre-

diction of high ground level pollutant concentrations. The

behavior of the plume is described by mathematical formulae

called dispersion coefficients. The petitioners in Cincinnati

Gas & Electric attacked the validity of one set of EPA’s

coefficients utilized under “gusty wind” conditions. See 578

F.2d at 662-664.

different rules for different regions, both rest upon

this assertion. All of these arguments are premised

on a fundamental misunderstanding of Cincinnati Gas

& Electric; there is no conflict between the circuits,

and the court of appeals correctly rejected peti-

tioner’s claim.°

In Cincinnati Gas & Electric, the Sixth Circuit

did not find that the Class A modeling approach could

not be used by EPA, as petitioner asserts (Pet. 35).

Instead, the court found that the explanation in the

record for EPA’s decision to use a particular set of

mathematical coefficients was inadequate. 578 F.2d

at 663-664. The court accordingly remanded the issue

to EPA “for further study,” but specifically noted

that the remand “might result in the writing of a

new record which supplies the now missing support

for the use of Class A coefficients.” Id. at 664.

On remand, EPA reevaluated the use of its Class

A approach and following a public comment period

concluded that it was an appropriate method to

analyze pollution levels caused by power plants like

the Harrison and Mitchell plants. EPA proposed new

technical support for the Class A approach on Feb-

ruary 7, 1979 and solicited public comment. 44 Fed.

Reg. 7798. EPA responded to those comments on

June 19, 1980. 45 Fed. Reg. 41501. On November

7, 1980, EPA denied a petition for reconsideration

® Petitioner never challenged EPA’s methodology during

the several comment periods provided by the Administrator,

although the same “Class A” modeling assumptions under-

lay EPA’s November 9, 1978 rule, iis November 7, 1979 pro-

posal, and its November 10, 1980 final rule. Having failed to

raise tne issue before the agency, petitioner could not properly

raise the issue in the court of appeals. United States v. L.A.

Tucker Truck Lines, 344 U.S. 33, 36-37 (1952); Portland

Cement Association Vv. Ruckelshaus, 486 F.2d 375, 394 (D.C.

Cir. 1973).

of its Class A decision. 45 Fed. Reg. 74041. Thus,

by the time EPA acted on petitioner’s implementation

plan, it had already complied with the Sixth Cir-

cuit’s remand order and reaffirmed the propriety of

using the “Class A” coefficients.”

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

ROBERT M. PERRY DONALD W. STEVER, JR.

General Counsel Attorney

LypIA N. WEGMAN

Assistant General Counsel

CATHERINE A. COTTER

Attorney

United States Environmental

Protection Agency

APRIL 1982

10 Petitioner’s final argument, that by disapproving the

implementation plan revisions, EPA impermissibly invaded

state sovereignty and violated the Clean Air Act (Pet. 32-33)

is frivolous, at best. Once the Administrator found that the

revised implementation plan would not assure attainment of

the secondary national ambient air quality standard within a

reasonable time, he was required to disapprove the revision

and order it to be modified. Section 110(a) (2) (A), 42 U.S.C.

(Supp. ITI) 7410(a) (2) (A). See generally Ohio Environmen-

tal Council v. EPA, 593 F.2d 24, 31-32, 33 (6th Cir. 1979).

W ov. S. covernmenr painting orrice; 1962 370473 851

Jauig AIdey

SJOU0NNad

Supreme Court, U.S.

FILED

APR 22 1982

No. 81-1361

IN THE CLERK

Supreme Court of The United States

Octoser Term, 1980

STATE OF WEST VIRGINIA, EX REL.

AIR POLLUTION CONTROL COMMISSION,

Petitioner-Appellant

ANN GORSUCH, ADMINISTRATOR

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent-Appellec.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

REPLY BRIEF IN RESPONSE TO BRIEFS IN

OPPOSITION

CHAUNCEY H. BROWNING

Atrornry GENERAL

NICHOLAS W. JOHNSON

Deputy Attorney General

Counsel of Record

RONALD A. SHIPLEY

Assistant Attorney General

Counsels for Appellant

Office of Attorney General

State of West Virginia

1204 Kanawha Boulevard, East

Charleston, West Virginia 25305

Telephone (304) 348-0546

5 pe” THE QUALITY PRESS, CHARLESTON, w ve

QUESTIONS PRESENTED

1. Did the State of West Virginia

waive its objection to the subject

matter jurisdiction and venue of the

United States Court of Appeals for the

Third Circuit to review an action of the

United States Environmental Protection

Agency's Administrator by waiting to

challenge the Court's jurisdiction and

venue until after compliance with the

Court's order for remand requiring

completion of a subsequent rulemaking by

the Administrator premised on the

possibility of mooting the case?

2. May tke State of West Virginia

challenge modelling techniques used by

the United States Environmental Protec=

tion Agency without first questioning

their use before the Agency when the

U.S. EPA which originally used modelling

techniques benefitting the State's

position but then inexplicably and

without notice, either in the Federal

longer rely on those techniques?

TABLE OF CONTENTS

QUESTIONS PRESENTED ..... +. « i

TABLE OF AUTHORITIES . ....... iii

INTRODUCTION é oe U 6.0: he eee 1

JURISDICTION TO REVIEW A

STATE IMPLEMENTION PLAN MUST

TAKE PLACE IN THE COURT OF

APPEALS IN WHICH THE SUBMITTING

ENTITY IS LOCATED ....+-+-e« «@ 2

WEST VIRGINIA HAS NOT WAIVED

ANY OF THE ARGUMENTS PRESENTED

IN ITS PETITION FOR WRIT OF

EPA DID NOT BASE ITS INITIAL

DECISION ON AN EXPERIMENTAL

STATISTICAL PROBABILITY METHOD . . 15

CONCLUS ION . . . . . . . . . . . . . 1 5

eile

TABLE OF AUTHORITIES

ABARE™ Inc. v. EPA,

D. . Eo

Cincinnati Gas & Electric Co.

v. EPA,

578 F.2d

1978);

(6th Cir. 1978).

City of Highland Park v. Train,

75)3

cert. denied, 424 U.S. 927

519 F.2d 681 (7th Cir. 19

578 F.2d 660

Commercial Casualty Ins. Co. v.

Consolidated Stone Co.,

278 U.S. 177 (1929);

District of Columbia v. Train,

(1976)

Getty Oil Corp. v.

U.S. 11

Gutierrez v.

Corp.,

Mt.

NRDC v. EPA,

» Gabe

NRDC v.

EPA,

Ruckelshaus,

(3rd Cir.

1973); cert. denied, 409

Waterman Steamshi

373 U.S. 706 (1563);

Healthy Board of Education

Vv. e, . . 274

Cid 77h;

475 F.2d 986 (D.C.

484 F.2d 1331 (lst

Cir. 1973); . . . . . . . .

Oljato Chapter of Navese Tribe

F. 54

v. Train,

D.C.

Cir.

1975);

-iii-

9, 10

Palmore v. United States, 411

U.s. 389 (1973); . . . 7 . . 3

Panhandle Eastern Pipe Line Co.

v. Federal Power Commission,

3270.8. 635 (1944); .... -

Peabody Coal Co. v. EPA, 522 F.2d

SeTse ete ee Sevens “s ss « 6

Portland Cement Association v.

Ruckelshaus, 486 F.2d 375

(D.C. Cir. 1973) o @ «6 bbe Bee Sa

Sierra Club v. Ruckelshaus, 344

F. Supp. D.D.C. 1972),

aff'd. 4 ERC 1815 (1972),

aff'd. sub nom., Fri v. Sierra

Club, 412 U.S. 541 (1973) .. 9

STATUTES

28 U.S.C. § 2112 (a) . . . . . . . 7

42 U.S.C. § 7604(c)(1) ..... 5

42 U.S.C. § 7407 . . . . . . . . 4

42 U.S.C. § 7607(b) (1)... «se. a

-iv-

No. 81-1361

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

STATE OF WEST VIRGINIA, EX REL.

AIR POLLUTION CONTROL COMMISSION,

Petitioners,

Vv.

ANN GORSUCH, Administrator, UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY

REPLY BRIEF IN RESPONSE TO

BRIEF N OPPOSITION

INTRODUCTION

The State of West Virginia hereby

replies to various questions, points and

factual assertions first raised in

briefs opposing its Petition for a Writ

of Certiorari. The briefs opposing our

Petition chiefly rely on the argument

that the Court below correctly decided

the case and that this Court, therefore,

need not review the decision. But while

making such arguments, Respondents make

tenuous legal arguments and false

factual assertions to which we must

reply. Indeed the briefs filed in

opposition must be carefully scrutinized

by this Court since they cleverly mask

and justify an erroneous Third Circuit

Court of Appeals decision decided

against legislative intent and cases of

this Court concerning a major contro-

versy of national importance on which a

split among Circuits exist. (See, Pet.

at 21-36.)

JURISDICTION TO REVIEW A STATE

IMPLEMENTATION PLAN MUST TAKE

PLACE IN THE COURT OF APPEALS

IN WHICH THE SUBMITTING ENTITY

IS LOCATED

The principle argument promoted by

Respondents opposing our petition for

review of the jurisdictional issue we

raise is that under the facts of this

case, the Third Circuit was the “appro-

priate circuit" to review the State

Implementation Plan (SIP) under’ the

jurisdictional grant contained in §

307 {b) (1). Pennsylvania argues that

such jurisdictional grant is really a

venue provision and the Third Circuit

was convenient and proper. (Pa. Br. at

6-10.) EPA on the other hand argues

=2e

that jurisdiction can be in several

different circuits and that the Third

Circuit was “appropriate” in this case

since the SIP had an effect on another

state. (EPA Br. at 7-8.) Thus, the

Court is provided with three different

interpretations of the Clean Air Act's

judicial review provisions concerning

SIPs--a fact which by itself points in

favor of this Court's reviewing this

nationally significant issue.

However, we must reply that the

section at issue does not, as

Pennsylvania asserts (Pa. Br. at 7),

invest all United States circuit court

of appeals with jurisdiction; rather

only the “appropriate circuit" has

jurisdiction. Since Congress possesses

the power to create tribunals inferior

to the Supreme Court and invests them

with jurisdiction to act in particular

ways, the issues of jurisdiction and

venue are questions of congressional

intent. Palmore v. United States, 411

U.S. 389 (1973). The question presented

in our Petition is what did Congress

intend?

The legislative history could not

be clearer that Congress intended for

SIP reviews to take place "in the U. S.

Court of Appeals for the Circuit in

which such locality, state or region is

located." (1977 Leg. Hist. cited in

Pet. at 25-26.) EPA's attempt to

"confirm" their interpretation (EPA Br.

at 7, n.4) while questioning “why the

identity of the submitting state is even

pertinent to the question of

‘appropriate circuit'” (EPA Br. at 6)

falls short of the- mark. EPA's

misconception of this section appears

based on the premise that the local

circuit court of appeals has

jurisdiction anywhere the air quality is

effected. (EPA Br. at 7.) The

legislative history clearly indicates

that the determining factor is not the

location where air quality is effected

but rather the location of air quality

control region. An air quality control

region (AQCR) is a geographical boundary

designated for the purpose of developing

SIPs to curb air pollution. 42 U.S.C. §

7407. In many instances, they are the

submitting entity--especially in an

interstate AQCR situation. See, NRDC v.

-4-

EPA, 475 F.2d 968 (D.C. Cir. 1973).

Indeed, EPA's position in this regard is

a little odd. In the lower court, EPA

opposed Pennsylvania's petition for

review because there was little or no

air quality effects in Pennsylvania.

(EPA Brief for Respondents at 13.)

Any doubt that may have existed on

this issue was clarified by the 1977

Amendments cited above.

Both Respondents state that the

language “appropriate circuit" means

review can be had in more than one

circuit by arguing that Congress could

have restricted jurisdiction to only one

court as it did in § 304(C)(1), 42

U.S.C. § 7604(c}(1) (EPA Br. at 7-8),

and by relying on a pre-1977 amendment

case, NRDC v. EPA, supra, (Pa. Br. at

7-8). Please note that the judicial

review provision in question goes to

orders concerning single sources as well

as SIPs. Since individual sources are

only located in one judicial circuit

[see _e.g., § 304(C) (1); 42 U.S.C. §

7604(c)(1)), and air quality control

regions often encompass interstate and

-5-

inter-judicial circuit areas see, NRDC

v. EPA, supra, the phrase “appropriate

circuit" was used to cover both situa-

tions with the legislative history

clarifying the intent to ensure that the

source or submitting entity's location

is the dispositive factor. (See also,

Pet. at 26, n.9.) Thus, the answer to

EPA's question concerning the relevancy

of the submitting state's location is

discovered--because Congress required

the entity's location to be the key

factor!

But why should the submitting

state's or entity's location be

relevant? The obvious answer is that

Congress was attempting to provide for

consistency of judicial review. As

explained in a case decided under the

Clean Water Act, 33 U.S.C. § 1251 et

seg., Peabody Coal Co.v. EPA, 522 F.2d

1150 (8th Cir. 1975), regular adjudica-

tion of an ongoing administrative

program of long duration benefits from

being consistently decided by the same

court. Indeed, under the Third

Circuit's decision and the rationale

proposed by Respondents, inconsistent

-6-

interpretations of requirements under

West Virginia's or other SIPs. are

enhanced because of the many different

courts which could review a single SIP.

Indeed, under EPA and Pennsylvania's

rationale, not only could Maine sue EPA

in its local circuit (i.e., First

Circuit) over Indiana's SIP, (Pet. at

27-28), but each downwind state could

file in their respective local circuit

on the same SIP and the only legal

guideline for determining which circuit

is “appropriate” would be under 28

U.S.C. § 2112(a) and a case-by-case

determination based on convenience.

Thus, any benefit from consistent review

will be lost and a lot of judicial time

will be wasted in an area where

congressinal intent is clear.

Pennsylvania points to allegedly

contrary legislative history indicating

that the 1977 amendments to Section

307(b) (1) dealt with the question of

"exclusive jurisdiction" (Pa. Br. at 6).

That phrase was used in connection with

a different jurisdictional grant under §

307(b) (1) and not the jurisdictional

section relating to SIP reviews.

-7J-

Both Respondents imply that West

Virginia did not raise a_ timely

objection. (Pa. Br. at 4; EPA Br. at

5.) Jurisdictional issues are not

waivable. Gutierrez v. Waterman Steam-

ship Corp., 373 U.S. 206 (1963); Mt.

Healthy Board of Education v. Doyle, 429

U.S. 274 (1977); Panhandle Eastern Pipe

Line Co. v. Federal Power Commission,

324 U.S. 635 (1944). And it is admitted

by Respondents that we did challenge the

Third Circuit's jurisdiction (Pa. Br. at

4; EPA Br. at 6.)

But even if the phrase is construed

to be venue related, our objection to

the Court's exercising its power over

the issues was timely raised. The State

did not intervene in the case until nine

months after the action was instituted

by Pennsylvania and EPA had already been

granted a voluntary remand to reconsider

certain issues. Raising our challenge

to the Court's authority would have been

wasteful of judicial resources’ and

inappropriate until after EPA finalized

its position. EPA's remand request

below was premised on the possibility of

mooting the case by administrative

action (see, EPA Motion for Remand, p.

7). Thus, the Court might not have to

consider the jurisdictional issue at

all. Secondly, and more importantly,

jurisdiction under the Clean Air Act is

based on the nature of the claims

raised. District of Columbia v. Train,

533 F.2d 1250, 1252 (D.C. Cir. 1976);

Oljato Chapter of Navajo Tribe v. Train,

515 F.2d 654 (D.C. Cir. 1975); Getty Oil

Corp. v. Ruckelshaus, 467 F.2d 349 (3rd

Cir. 1973); cert. denied, 409 U.S. 1125

(1973). Consequently, until EPA final-

ized its position so Petitioners could

finalize their claims, it was inappro-

priate to raise jurisdiction since it

was unclear in which court the case

belonged [see, e.g., Sierra Club v.

Ruckelshaus, 344 F. Supp. 253 (D.D.C.

1972), aff'd on the basis of the dis-

trict court's opinion, 4 ERC 1815 (1972)

aff'd by equally divided court sub nom.

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

City of Highland Park v. Train, 519 F.2d

681 (7th Cir. 1975); cert. denied, 424

U.S. 927 (1975); NRDC 7. EPA, 484 F.2d

1331 (lst. Cir. 1973)] Of course, EPA

unexplainedly reversed its position and

we also petitioned for review, but in

-9-

the Fourth Circuit. But in any case,

the reasonableness of the party's

conduct will be assessed in determining

whether a waiver of venue has occurred.

Cf. Commerical Casualty Ins. Co. v.

Consolidated Stone Co., 278 U.S. 177

(1929).

Finally Pennsylvania's comment that

we never offered a compelling reason for

transfer to the Fourth Circuit is false.

Not only did we assert that the Third

Circuit lacked jurisdiction, but we

urged the Third Circuit to transfer in

consideration that the Fourth Circuit

normally considers West Virginia SIP

reviews and we sought to prevent incon-

sistent adjudications of our SIP.

In summary, the judicial review

provisions of the Clean Air Act have

been labeled confusing. District of

Columbia v. Train, supra. This Court

should move to clear up such confusion.

-10-

WEST VIRGINIA HAS NOT WAIVED ANY

OF THE ARGUMENTS PRESENTED IN ITS

PETITION FOR WRIT OF CERTIORARI

EPA attempts to convince this Court

that nationally significant issues

concerning their modelling techniques

and failure to explain their changes in

policy should not be heard because we

failed to raise them either before the

agency or before the Court below. (EPA

Br. at 6 and 9). Both arguments are

misleading and wrong.

Relying on Portland Cement Associ-

ation v. Ruckelshaus, 486 F.2d 375 (D.C.

Cir. 1973), EPA asserts that our failure

to question the use of Class "A" model-

ling assumptions underlying the EPA

decisions prohibits us from raising it

now.

First, the issue was before the

agency. The author of the EPA rationale

document labeled reliance on rare Class

"A" stability meteorological conditions

"“indefensable" (Index No. 54, A. 736).

EPA's Rationale Document for the first

approval of the limits was based on the

“ile

rationale that the predicted violation

was due to a rare meteorological event.

(Index No. i130, A. 1690.) Thus, EPA

confronted the Class "A" stability issue

and decided it in our favor. An issue

before an Agency is properly before a

Court on review even if a different

party raises it. ASARCO, INC. v. EPA,

578 F.2d 319, 320 n.1 (D.C. Cir. 1978).

Secondly, the rule precluding

judicial review of issues not raised

before the agency is not absolute. It

is dependent upon whether the issues

should or could have been raised.

Portland Cement Assoc. v. Ruckelshaus,

supra. In Portland Cement, (the case

upon which EPA relies to preclude

judicial review of our claim) the Court

remanded the issues to the agency rather

than dismissing the claims because

Petitioners did not know EPA's position

until it was too late to raise the

issues. id. This is precisely our

situation. EPA abruptly and inex-

plicably decided to rely upon the "A"

stability modeling. Should we be

required to raise issues which (1) EPA

was already aware of and (2) had

-12-

resolved in our favor? A party need not

raise every issue possibly pertinent to

a proceeding just on the outside chance

that the Agency might change it mind.

Without any indication either in the

Federal Register or informally that EPA

was unfavorably considering the "A"

stability modelled data, there was no

duty on the State to raise it. Portland

Cement Co. Vv. Ruckelshaus, supra.

Consequently, any decision of the Third

Circuit based on this reasoning is

erroneous and also raises an issue which

is in conflict with other Circuits.

Finally, in regard to the Class "A"

stability issue, EPA attempts to claim

that we misread and misinterpret the

Sixth Circuit's decision in Cincinnati

Gas & Electric Co. v. EPA, 578 F.2d 660

(6th Cir. 1978). If we do, then so does

EPA! (Compare Pet. at 15 n.4 and 35

with EPA Br. at 11.) All we ask is for

equal treatment. We requested that the

Third Circuit remand EPA's decision for

a study to justify use of "A" stability

as did the Sixth Circuit. The Third

Circuit refused. The fact that EPA has

apparently justified using "A" stability

-13-

modelling data in Ohio, does not mean

that it is justified in West Virginia.

Our rulemaking was different; our

terrain (which influences’ stability

classes) is very different from Ohio's.

Our modelling used nine years of mete-

orological data rather than the one year

used in Ohio (Belanger memo, p. 6).

Consequently, review by this Court

is necessary to settle whether use of

Class "A" stability must be accompanied

by a study justifying its use. This

issue, in which there is a_ conflict

between the Third and Sixth Circuits

affects all fifty states.

EPA also claims that we failed in

the Court below to raise the argument

that the Administrator changed his mind

without adequate explanation. We did

raise it! (Brief of West Virginia, at

38-43.) Regardless of whether the final

rule differed from the proposed rule

(EPA Br. at 10), EPA cannot reverse a

previous final rulemaking approving our

limits without giving an adequate

explanation! (Pet. at 29 and Question

Presented No. 3.) Since EPA's cavalier

-14-

attitude toward rulemaking has national

significance, this Court should grant

our Petition.

EPA DID NOT BASE ITS INITIAL

DECISION ON THE STATISTICAL

PROBABILITY METHOD

Finally, EPA asserts that its

initial decision approving the _ SIP

revision was based on the experimental

statistical method. (EPA Br. at 4-5.)

That is false! EPA's initial decision

approving the SIP revisions on November

9, 1978, did not use the statistical

method. In fact, the Belanger Memo,

produced after the initial decision and

during the voluntary remand below,

states as such: “At your request, I

have now supplemented my judgment * *

*,." (Belanger Memo, p. 9.)

CONCLUSION

For the above-cited reasons, the

State of West Virginia respectfully

urges this Court to discount and refuse

to give any weight to the Briefs filed

in opposition and to grant our Petition

for a Writ of Certiorari to the United

States Court of Appeals for the Third

Circuit.

Respectfully submitted,

STATE OF WEST VIRGINIA,

EX REL. AIR POLLUTION

CONTROL COMMISSION,

By Counsel

CHAUNCEY H. BROWNING

ATTORNEY GENERAL

NICHOLAS W. JOHNSON

DEPUTY ATTORNEY GENERAL

Counsel of Record

RONALD A. SHIPLEY

ASSISTANT ATTORNEY GENERAL

-16-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.