# Record and brief — West Virginia ex rel. Air Pollution Control Commission v. Gorsuch > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1119%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 456 U.S. 972 ## 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, v. 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. . «© «© © © © © © © © « 37 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, F. U.S. n r. EPA, 1) 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 28 28 42 42 42 42 42 42 42 U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. 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 Register, except 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. (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. 2. 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. 9 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 X. 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 (c) (9), is added as follows: § 52.2520. Identification of plan. (c) The plan revisions listed below 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 Register, EPA is informing the State of 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 (c) (3), is added as follows: § 52.2520 Identification of plan. xke (c) The plan revisions listed below 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 v. 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 v. 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 i 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 12 10 10 11 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