Petition — West Virginia ex rel. Air Pollution Control Commission v. Gorsuch

P Office sume Court, U. |

81-1524 [rire

FEB 12 1982

No. 81- ALEXANDER & STEVAS,

in the Supreme Court of the

United States

October Term, 1981

COMMONWEALTH OF PENNSYLVANIA,

Cross-Petitioner-A ppellant

v.

ANN GORSUCH, ADMINISTRATOR, UNITED

STATES ENVIRONMENTAL PROTECTION

AGENCY,

Respondent-A ppellee

On Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

CROSS-PETITION FOR WRIT OF CER-

TIORARI BY THE COMMONWEALTH

OF PENNSYLVANIA

——,

Douc as R. BLazry

Chief Counsel

THOMAS Y. AU

WILLIAM R. SIERKS

Assistant Counsel

Pennsylvania Department

of Environmental Re-

sources

Counsel for Cross-

Petitioners

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 Clean Air Act require the Administrator

of the Environmental Protection Agency to determine the

interstate impacts of air pollution in her review and ap-

proval of each state implementation plan?

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.

-r TOmP MOO DB >

TABLE OF CONTENTS

PAGE

ERTS EER a PS Le i

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

EE IN 0 5d PN ea ad 6 ce bedeecdbatewe ii

PP sieve eek ac etaneseéoeeusaes 1

EN dae eels aay i eaddile ns ok’ 1

Statutory and Constitutional Provisions Involved . . 3

SN Or Ee eves eslécebekuesae ee 8

Reasons for Granting the Writ:

I. Review of the decision below by this Hon-

orable Court is necessary to clarify federal-

state relationships under the Clean Air Act 11

II. EPA has not made the required determina-

tion under the Clean Air Act that the West

Virginia state implementation plan will not

cause interstate air pollution ............ 14

soe e hase Misvandsedeéunssadeenes 19

Appendix A—Judgment Order ................ 20

Appendix B—45 Fed. Reg. 74478 ............. 23

Appendix C—45 Fed. Reg. 74520 ............. 31

ii:

TABLE OF CITATIONS

CASES:

Bunker Hill Co. v. EPA, 572 F.2d 1286 (9th Cir.

a eee ee ee 11

Citizens for a Better Environment v. Costle, F.

Supp. , 16 ERC 1162 (N.D. IIL, April 15,

a a i ge ee 14

Florida Power & Light Co. v. Costle, 650 F.2d 579

I kee ee he 11

Industrial Labor Department, AFL-CIO v. Ameri-

can Petroleum Institute, 448 U.S. 607 (1980)

15, 16

Manchester Environmental Coalition v. EPA, 612

ee CE, Gg. oc vsccecenecees 11

Securities and Exchange Commission v. Chenery

Ss Gee Gs UP CUUOED ccc cccccccccces 17,18

Train v. Natural Resources Defense Council, 421

U.S. 60, 95 S.Ct. 1470, 43 L.Ed. 2d 731 (1975)

8,11, 13

Union Electric Co. v. EPA, 427 U.S. 246, 96 Stat.

2518, 49 L.Ed. 2d 474 (1976) ............ 8

MISCELLANEOUS:

ee SD... i vceseeeesneeuee 8

Clean Air Act:

1977 Amendmen‘s, 42 U.S.C. Sec. 7401 et seq.

12, 13, 14, 18

Section 101 (a) (4), 42 U.S.C. 7401(a) (4) .. 15

Section 109, 42 U.S.C. Sec. 7409 .......... 8

Section 110(a) (2), 42 U.S.C. Sec. 7410(a)

GP Secowepesovcséceccvévesees 3, 4,5, 11, 13

Section 110(a) (2) (E), 42 U.S.C. Sec. 7410

(a) (2) (E) ...... 9, iG, 12, 13, 14, 16, 17, 18, 19

= 110(a) (3), 42 U.S.C. Sec. 7410(a)

)

Section 110(c), 42 U.S.C. Sec. 7410(c) .... 11

Section 126, 42 U.S.C. Sec. 7426 ......... 5,6,17

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

GED oc ces cscerscvcsoedeccessivvecess 6,7

Occupational Safety and Health Act, 29 U.S.C. Sec-

.0. kee sky dbetvsesenas esas 15

iv

Opinions Below and Jurisdiction |

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 attached hereto as Appendix A.

The final actions of the U.S. Environmental Protec-

tion Agency, review of which is sought, are published at:

45 Fed. Reg. 74478 (November 10, 1980), Ap-

pendix B.

45 Fed. Reg. 74520 (November 10, 1980), Ap-

pendix C.

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. The

Commonwealth of Pennsylvania filed a petition for rehear-

ing en banc, which was denied on October 28, 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 (No. 81-1361). The Com-

monwealth of Pennsylvania received the Petition for Writ

of Certiorari on January 20, 1982. The Commonwealth

respectfully files this Cross-Petition for Writ of Certiorari

under Rule 19.5 of the Rules of this Court.

2 Jurisdiction

The jurisdiction of the United States Court of Ap-

peals for the Third Circiut, 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).

Statutory and Constitutional Provisions 3

Involved

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED

Section 110(a) (2) of the Clean Air Act, 42 U.S.C.

§7410(a) (2), provides:

IMPLEMENTATION PLANS

Sec. 110(a) (1) Each State shall, after reasonable

notice and public hearings, adopt and submit to the Ad-

ministrator, within nine months after the promulgation of

a national primary ambient air quality standard (or any

revision thereof) under section 109 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 en-

forcement of such secondary standard in each air quality

control region (or portion thereof) within such State. Un-

less a separate public hearing is provided, each State shall

consider its plan implementing such secondary standard

at the hearing required by the first sentence of this para-

graph.

(2) The Administrator shall, within four months

after the date required for submission of a plan under

paragraph (1), approve or disapprove such plan for each

4 Statutory and Constitutional Provisions

Involved

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—

(A) except as may be provided in subpara-

graph (1) (i) in the case of a plan implementing a

national primary ambient air quality standard, it pro-

vides for the attainment of such primary standard as

expeditiously as practicable but (subject to subsec-

tion (e)) in no case later than three years from the

date of approval of such plan (or any revision there-

of to take account of a revised primary standard) ;

and (ii) in the case of a plan implementing a national

secondary ambient air quality standard, it specifies

a reasonable time at which such secondary standard

will be attained;

(B) it includes emission limitations, schedules,

and timetables for compliance with such limitations,

and such other measures as may be necessary to in-

sure attainment and maintenance of such primary or

secondary standard, including, but not limited to

transportation controls, air quality maintenance plans,

and preconstruction review of direct sources of air

pollution as provided in subparagraph (D);

** *

(E) it contains adequate provisions (i) pro-

hibiting any stationary source within the State from

emitting any air pollutant in amounts which will (1)

prevent attainment or maintenance by any other State

of any such national primary or secondary ambient

air quality standard, or (II) interfere with measures

required to be included in the applicable implementa-

Statutory and Constitutional Provisions 5

Involved

tion plan for any other State under part C to prevent

significant deterioration of air quality or to pre‘ect

visibility, and (ii) insuring compliance with the re-

quirements of section 126, relating to interstate pol-

lution abatement;

Section 126 of the Clean Air Act, 42 U.S.C. §7426,

provides:

INTERSTATE POLLUTION ABATEMENT

Sec. 126. (a) Each applicable implementation plan

shall—

(1) require each major proposed new (or mod-

ified) source—

(A) subject to part C (relating to signifi-

cant deterioration of air quality) or

(B) which may significantly contribute to

levels of air pollution in excess of the national

ambient air quality standards in any air quality

control region outside the State in which such

source intends to locate (or make such modifi-

cation) .

to provide written notice to all nearby States the air

pollution levels of which may be affected by such

source at least sixty days prior to the date on which

commencement of construction is to be permitted by

the State providing notice, and

(2) identify all major existing stationary

sources which may have the impact described in para-

graph (1) with respect to new or modified sources

6 Statutory and Constitutional Provisions

Involved

and provide notice to all nearby States of the identity

of such sources not later than three months after the

date of enactment of the Clean Air Act Amendments

of 1977.

s*s ¢ &

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

§7607 (b) (1), provides:

GENERAL PROVISIONS RELATING TO ADMINISTRATIVE

PROCEEDINGS AND JUDICIAL REVIEW

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

istrator’s action in approving or promulgating any imple-

mentation 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 Adminis-

trator under title I) which is local 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 promulga-

Statutory and Constitutional Provisions 7

Involved

tion, approval, or action appears in the Federal Register,

except that if such petition is based solely on grounds aris-

ing after such sixtieth day, then any petition for review

under this subsection shall be filed within sixty days after

such grounds arise.

8 Statement of the Case

STATEMENT OF THE CASE

This case involves EPA’s approval of regulations in-

creasing sulfur dioxide emission limitations in the West

Virginia state implementation plan. The nature of this

case is complex, and requires some explanation.

On May 31, 1972 (37 F.R. 10901), EPA formally

approved sulfur dioxide emission limitations for West Vir-

ginia, submitted by the State of West Virginia in its state

implementation plan for sulfur dioxide. See 40 C.F.R.

§52.2520. These emission limitations were designed to

insure the attainment and maintenance of the national pri-

mary ati secondary ambient air quality standards for sulfur

dioxide.’ It is undisputed that the original sulfur dioxide

emission limitations for power plants in West Virginia of

1972, if enforced, would be adequate to protect both the

primary and secondary ambient air quality standards.

On January 25, 1978 and on September 11, 1978,

West Virginia submitted to EPA revisions of iis state im-

plementation plan for sulfur dioxide. The revisions sig-

nificantly increased allowable sulfur dioxide emissions, but

West Virginia asserted that the new emission limits would

1The primary and secondary national ambient air quality

standards are established by statute and by regulation. See §109

of the Clean Air Act, 42 U.S.C. §7409. See also the discussion

of implementation plans in Train v. Natural Resources Defense

Council, 421 U.S. 60, 95 S.Ct. 1470, 48 L.Ed. 2d 731 (1975).

The importance of meeting national ambient air quality stand-

dards is articulated by this Court in Union Electric Co. v. EPA,

427 U.S. 246, 96 Stat. 2518, 49 L.Ed. 2d 474 (1976).

Statement of the Case 9

result in the attainment and maintenance of both the na-

tional primary and secondary ambient air quality stan-

dards for sulfur dioxide within West Virginia. Later that

year, on November 9, 1978, EPA approved the amended

West Virginia implementation plan and allowed the dele-

_ tion of certain emission limitations from the West Vir-

ginia implementation plan. (43 F.R. 62249).

On January 5, 1979, the Commonwealth of Pennsyl-

vania and the Council of Senior West Virginians, Inc., and

other citizen groups, filed petitions for review of EPA’s

action. After the Petitioners below set forth their con-

cerns to EPA counsel, on June 1, 1979, EPA voluntarily

requested a remand, which was granted by the United

States Court of Appeals for the Third Circuit.

As the result of the remand, EPA undertook two ad-

ditional actions more than a year later which were pub-

lished in the Federal Register on November 10, 1980 (45

F.R. 74478, Appendix B, and 45 F.R. 74520, Appendix

C). In one notice, EPA approved the amended plan as

adequate to meet the primary sulfur dioxide ambient air

quality standard. In the other notice, EPA notified the

State of West Virginia of a “deficiency” in its implementa-

tion plan for the secondary sulfur dioxide ambient air qual-

ity standard, but did not disapprove that portion of the re-

vision.

EPA’s actions of November 10, 1980, failed to ad-

dress fundamental issues concerning interstate impacts of

air pollution. EPA had still not informed the public how

it would implement Section 110(a) (2) (E) of the Clean

Air Act (the interstate pollution abatement provisions),

42 U.S.C. §7410(a) (2) (E), and, indeed, EPA had made

no finding that the West Virginia plan conformed with

10 Statement of the Case

Section 110(a) (2) (E). EPA proceeded to approve the

deletion of emission limits in the West Virginia plan which

would have protected the secondary sulfur dioxide am-

bient air quality standard from violation. The long-range

transport of, or interstate impact of, air pollutants is the

very issue that EPA has avoided discussing or analyzing in

this case. Pennsylvania can enact stricter emission limi-

tations for major sources within its jurisdiction, but un-

less EPA controls pollution entering into Pennsylvania,

out-of-state sources will consume air resources in Penn-

sylvania. The Mitchell plant is located 15 miles from

Pennsylvania and the Harrison plant is located 25 miles

from Pennsylvania.

The Cross-Petitioner Commonwealth of Pennsylvania

requested review of these actions of EPA in the U.S. Court

of Appeals for the Third Circuit. Petitioner-Appellant

State of West Virginia, in a petition filed later, requested

review of these actions in the U.S. Court of Appeals for the

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

Circuit transferred West Virginia’s petition to the Third

Circuit, where the cases were consolidated. The USS.

Court of Appeals for the Third Circuit dismissed all the

petitions for review filed in a single order. Its judgment

order is the subject of this cross-petition (Appendix A).

Reasons for Granting the Writ 11

REASONS FOR GRANTING THE WRIT

I. Review of the Decision Below by This Honorable

Court Is Necessary To Clarify Federal-State Relationships

Under the Clean Air Act

The statutory scheme in the Clean Air Act for the

control of air pollution creates a unique federal-state re-

lationship, since control measures established at the fed-

eral level are determined by state plans. Within nine

months of EPA’s adoption of a national ambient air qual-

ity standard for a specific pollutant, a state must submit an

implementation plan which demonstrates that the state will

“attain and maintain” the national standard. In reviewing

a plan, the Administrator of EPA must determine whether

it meets twelve criteria set forth in §110(a) (2), 42 U.S.C.

§7410(a) (2). If the Administrator determines that it does

meet those criteria, she is required to approve it. Train

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

(1975). Conversely, if she determines that it does not,

she must disapprove it. Manchester Environmental Coali-

tion v. EPA, 612 F.2d 56 (2d Cir. 1979) ; see Bunker Hill

Co. v. EPA, 572 F.2d 1286 (9th Cir. 1977) ?

2The criteria that apply to the initial promulgation of an

implementation plan apply to a revision. Section 110(a) (3), 42

U.S.C. §7410(a) (3); Florida Power & Light Co. v. Costle, 650

F.2d 579 (5th Cir. 1981). These eriterie also apply to an im-

plementation plan that has been promuigated or revised by EPA,

rather than by a state, pursuant to §110(c), 42 U.S.C. §7410(e).

12 Reasons for Granting the Writ

When the Clean Air Act was first enacted in 1970,

there was no provision in the Act which required a state

to consider the possibility of interstate pollution. Thus,

a state could legally maximize emissions within the state,

and, as long as the emissions did not cause a local viola-

tion of national ambient standards, EPA had to approve

the state implementation plan regardless of the impact of

the sources, individually or in the aggregate, upon air

quality in a neighboring state. The lack of accountability

of in-state emitters for out-of-state impact was one of the

problems Congress considered in the 1977 Amendments

to the Clean Air Act (codified at 42 U.S.C. §7401 et seq.).

Amendments to the Clean Air Act, in 1977, how-

ever, imposed specific new duties on EPA to control and

abate interstate air pollution. Pub. L. 95-95, 91 Stat. 685

(“the 1977 Amendments”). In §110(a) (2) (E), Con-

gress nade consideration of the interstate transport of air

pollutants a mandatory part of approval of any state im-

plementation plan (SIP). Section 110(a) (2) (E) pro-

vides for approval of a plan if the Administrator deter-

mines that:

it contains adequate provisions (i) prohibiting any

stationary source within the State from emitting any

air pollutant in amount which will (I) prevent at-

tainment or maintenance by any other State of any

such national primary or secondary ambient air qual-

ity standard, or (II) interfere with measures required

to be included in the applicable implementation plan

for any other State under part C to prevent significant

deterioration of air quality or to protect visibility,

and (ii) insuring compliance with the requirements

of section 126, relating to interstate pollution abate-

ment....

Reasons for Granting the Writ 13

The 1977 Amendments provided that EPA, as the respon-

sible federal agency, would have a new role of leadership

in addressing and resolving problems caused by the trans-

port of pollutants between states. See §101(a) (4), 42

U.S.C. §7401 (a) (4). This task is to be accomplished by

EPA under its statutory duty to analyze and evaluate the

interstate air pollution effects of each state implementation

plan. Since 1977, however, EPA has taken no action to

implement these requirements of the Act. Unless EPA is

held to its duties under §110(a)j (2) (E), the interstate

abatement provisions will be rendered ineffective and the

congressional intent that affected states have a remedy in

the SIP development process will be defeated.

The 1977 Amendments also required the Administra-

tor to review and revise pre-existing SIPs to bring them

into conformance with new requirements of the Act

within one year. Section 406(d) (2), Pub. L. 95-95, set

out as a note to 42 U.S.C.A. §7501. Thus, by mid-1978,

the Administrator was required by law to have reviewed

each SIP for conformity with the new provisions of §110

(a) (2) and to have made a determination that the SIP as

a whole does not unlawfully contribute to pollution in

other states in violation of §110(a) (2) (E). Before the

Administrator could approve any new SIP revision under

§110(a) (3), she must have determined first that the un-

derlying SIP as a whole complied with the 1977 Amend-

ments, and additionally that the proposed revision con-

formed with the Act.

Since the decision in Train v. Natural Resources De-

fense Council, 421 U.S. 60 (1975), this Honorable Court

has not examined the federal-state relationship in the ad-

ministration of the Clean Air Act. The 1977 Amend-

14 Reasons for Granting the Writ

ments impose a new tension on the federal-state relation-

ship, and this is an opportune time to re-examine the Act.

II. EPA Has Not Made the Required Determination Un-

der the Clean Air Act That the West Virginia State Imple-

mentation Plan Will Not Cause Interstate Air Pollution

The Cross-Petitioners submit that the Clean Air Act

requires an explicit determination of compliance with the

interstate pollution abatement provisions.

In this case, EPA is required to make an affirmative

determination concerning the approvability of a state im-

plementation plan under Section 110 (a) (2) (E) of the Act.

Section 110(a) (2) begins:

The administrator shall approve such plan, or any

portion thereof, if he determines that it was adopted

after reasonable notice and hearing and that...

We are not dealing with a portion of the Act which is

silent on EPA’s duty to make a determination. EPA’s

failure to make a necessary determination should not be

passed over, by reason of deference to an administrative

agency. Various district courts have granted summary

judgments to plaintiffs where EPA has failed to determine

the adequacy of a state implementation plan with respect

to the 1977 Amendments to the Clean Air Act. See, e.g.,

Citizens for a Better Environment v. Costle, F. Supp.

, 116 ERC 1162 (N.D. Ill., April 15, 1981). Two

years ago, this Honorable Court, through a plurality opin-

ion, remanded an OSHA benzene exposure rule due to the

Reasons for Granting the Writ 15

6

failure of the Secretary of Labor to make the requisite

threshold finding. Industrial Labor Department, AFL-

CIO v. American Petroleum Institute, 448 U.S. 607

(1980). In that case, the Court found that the Occupa-

tional Safety and Health Act, 29 U.S.C. §652(8) , required

the Department of Labor to determine that a standard

adopted under the Act be ‘‘reasonably necessary or ap-

propriate to provide safe or healthful employment and

places of employment.” A majority of this Court held

that the Secretary of Labor had not made the necessary

finding required by §3(8):

It is noteworthy that at no point in its lengthy ex-

planation did the Agency quote or even cite §3(8) of

the Act. It made no finding that any of the provi-

sions of the new standard were ‘reasonably necessary

or appropriate to provide safe or healthful employ-

ment and places of employment.’

448 US. at 638.

This Court examined the record in detail to deter-

mine whether this threshold finding had been made, but

its review did not uncover a finding resembling that re-

quired by the statute. Justice Stevens noted that he could

not infer this critical finding on behalf of the Secretary of

Labor, although the record was voluminous.

Because our review of this case has involved

more detailed examination of the record than is cus-

tomary, it must be emphasized that we have neither

made any factual determinations of our own, nor

have we rejected any factual findings made by the

Secretary. We express no opinion on what factual

findings this record might support, either on the basis

16 Reasons for Granting the Writ

of empirical evidence or on the basis of expert testi-

mony; nor do we express any opinion on the more

difficult question of what factual determinations

would warrant a conclusion that significant risks are

present which make promulgation of a new standard

reasonably necessary or appropriate. The standard

must, of course, be supported by the findings actually

made by the Secretary, not merely by findings that we

believe he might have made.

448 U.S. at 659 (emphasis supplied).

Thus, this Court rejects any notion that the required de-

termination can be made implicitly.

In this case, the Cross-Petitioners have asked EPA to

make a finding that the West Virginia state implementa-

tion plan is adequate under Section 110(a) (2) (E) of the

Clean Air Act. EPA failed to make any such finding.

(45 F.R. 74478, Appendix B).

A review of EPA’s action will reveal no finding that

approximates the finding required by Section 110(a) (2)

(E) of the Clean Air Act. Despite Pennsylvania’s re-

peated requests to EPA to examine the air quality impacts

of relaxation of standards to determine whether the revi-

sion conformed with Section 110(a) (2) (E) of the 1977

Amendments, EPA made no determination that the West

Virginia plan conformed with Section 110(a) (2) (E).

The only determination by EPA under Section 110(a) set

forth in the notice of final rulemaking was the determina-

tion under Section 110(a) (2) (A) that the plan meets the

requirement of attainment and maintenance of the national

primary ambient air quality standard for SOz in West Vir-

ginia.

Reasons for Granting the Writ 17

The EPA final action does not state that the West

Virginia plan adequately protects Pennsylvania as required

by Section 110(a) (2) (E). Moreover, EPA explicitly de-

termined in its final rulemaking that the West Virginia SO2

control strategy is not adequate to ensure attainment and

maintenance of the secondary national ambient air quality

standard for SOz in West Virginia (45 F.R. 74520, Ap-

pendix C). Consequently, EPA’s failure to determine

whether the West Virginia plan is adequate to protect the

secondary national ambient air quality standard in Penn-

sylvania is even more delinquent. Nowhere in the rule-

making is there a finding by EPA that the state implemen-

tation plan “contains adequate provisions prohibiting any

stationary source within West Virginia from emitting sul-

fur dioxide in amounts which will prevent attainment or

maintenance in Pennsylvania of the sulfur dioxide primary

or secondary ambient air quality standard,” as is required

by Section 110(a) (2) (E).

In its two Rationale Documents prepared by the

Agency to support its approval of the SIP, there are no

analyses of the long-range transport of SO: and particulate

and there is no mention of any determinations pursuant to

Sections 110(a) (2) (E) or 126 of the Act. The only refer-

ence to interstate pollution is a statement of EPA’s opinion

that it has no duty to consider interstate transport of sul-

fates.

Since the Administrator did not make the necessary

determinations, the Court of Appeals should have re-

manded this case to the Administrator to make the required

determinations. The Court cannot substitute its judgment

for the Administrator’s in making determinations. See

Securities and Exchange Commission v. Chenery Corp.,

18 Reasons for Granting the Writ

318 U.S. 80 (1943). EPA’s failure to make a determina-

tion that the West Virginia SIP revision complies with

Section 110(a) (2) (E) makes the SIP revision invalid.

The importance of controlling interstate air pollution

is clearly recognized and was one of the major concerns

of Congress in strengthening the interstate provisions of

the Clean Air Act.’ EPA has failed to demonstrate even

* The legislative history of the Clean Air Act Amendments

of 1977 demonstrates Congress’ concern over the problem of in-

terstate air pollution and EPA's failure to implement an effee-

tive control program. The House Report on the Clean Air Act

Amendments of 1977 contained the following language concern-

ing Section 110(a) (2) (EB):

The problem of interstate air pollution abatement has

long been a source of concern, but to date an adequate

solution has been elusive.

* ¢

In the committee’s view, however, the existing law (as

interpreted by the Administrator) is an inadequate answer

to the problem of interstate air pollution.

Section 309 of the committee bill revises section 110

(a) (2)(E) of the act and adds a new section 126 to the act.

These new provisions are intended to establish an effective

mechanism for prevention, control, and abatement of inter-

state air pollution. H.R. Rep. No. 95-294, at 329-30, 2 U.S.

Cong. and Adm. News (1977) at 1408-09.

The House Committee report also recognized the problems in-

herent in the long-range transport of air pollution:

Clearly, then, while emissions may not be ‘significant’ in

the area of origin, when transported to another area and com-

bined with pollutants from other areas, air quality may be

drastically degraded.

H.R. Rep. No. 95-294, at 135, 24 8. Code Cong. and Adm. News

(1977) at 1214.

Reasons for Granting the Writ 19

minimal consideration of interstate impacts in its actions

in this case. It is vitally important to the future of inter-

state air pollution control that this Court accept this writ

and hold that EPA must affirmatively find compliance

with Section 110(a) (2) (E) in approving a SIP revision.

Unless and until EPA provides a proper legal and

technical finding for its November 9, 1978 proposal, and

makes these findings explicit in its final action, the pro-

posed revision to the EPA approved implementation plan

should be vacated and remanded. Pennsylvania requests

this Court to accept the writ and rule on the vital national

issue of EPA’s duty to consider the impacts of interstate

air pollution under the Clean Air Act.

CONCLUSION

For the above stated reasons, Cross-Petitioner respect-

fully requests this Court to issue a Writ of Certiorari.

Respectfully submitted,

COMMONWEALTH OF PENNSYL-

VANIA, DEPARTMENT OF EN-

VIRONMENTAL RESOURCES

By Counsel:

DouGLas R. BLAZEY

Chief Counsel

THoMas Y. Au

Assistant Counsel

WILLIAM R. SIERKS

Assistant Counsel