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

—-

upreme Court, U.S.

{LED

No. 81-1524

MAR 22 1982

gn the

LEXANDER L STEVAS

Supreme Court of the United States CLERK a

October Term 1981

COMMONWEALTH OF PENNSYLVANIA,

Cross- Petitioner- Appellant,

v.

ANN GORSUCH, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Cross- Respondent- Appellee.

On Writ oF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD Circun

Brief Of Cross-Respondent,

Monongahela Power Company,

Intervenor Below, In Opposition

To Cross-Petition For Writ of Certiorari

LAWRENCE A. DEMASE

Counsel of Record

WILLIAM F. CockreLt, Jr.

ROSE, SCHMIDT, DIXON& HASLEY

Counsel for Cross- Respondent,

Intervenor Below, Monongahela

Power Company

900 Oliver Building

Pittsburgh, PA 15222

(412) 434-8600

and

1575 Eye Street, N.W.

Washington, D.C. 20005

(202) 289-8300

ne = eeay

Financial Press Corporation. Putsburgh

QUESTION PRESENTED

Did the Court of Appealserr in sustaining the Environmen-

tal Protection Agency's decision to approve in part, sulfur

dioxide emission limitations for sources in West Virginia,

including Monongahela Power Company’s' Harrison Power

Station, as complying with Section 110(a) (2) (E) of the 1977

Amendments to the Clean Air Act, 42 U.S.C. §7410(a) (2) (E).

‘Affiliates of Monongahela Power Company are Allegheny Power Sys-

tem, Inc., Allegheny Power Service Corporation, West Penn Power Company

and The Potomac Edison Company.

TABLE OF CONTENTS

Page

FALE GH AUT IRRI TOD ccc ccccccccccqccceccees il

ADDITIONAL STATUTORY PROVISIONS ......... l

SUMMARY OF ARGUMENT. .....cccsccccccccccces 2

| PPPPPOTTTTITITITIT TTL TTT TTT TT TTT ee 4

1. THE DECISION BELOW DOES NOT RAISE

QUESTIONS CONCERNING FEDERAL-STATE

RELATIONSHIPS UNDER THE CLEAN AIR

Il. THE DECISION BELOW DOES NOT DEPART

FROM ACCEPTED PRINCIPLES OF LAW .....

CRUE ETS cccccccseccectecescccceccucecscecese

i

TABLE OF AUTMORITIES

CASES

Baltimore & O.C.T.R. Co. v. United States,

Se cae ne GE, CUED co cocccccceccccscececce s

Cleveland Electric Illuminating Co. v. EPA, 572 ¥.2d

1150 (6th Cir. 1978), cert. denied 439 U.S. 910

Dt cdalde ce aedadiagkessakeeheae eke cokceeoe we x

Connecticut v. EPA, 656 F.2d 902 (2d Cir. 1981) 2.2... 6

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

ey eck ee tatu bed Baek eebmae 6

Mission Industrial, Inc. v. EPA, 547 ¥.2d 123

ee a ee ee eee ee ee ae 6

Train v. Natural Resources Defense Council,

— & te ee 2, 4, 6

United States v. Allegheny-Ludlum Steel Corp.,

SP CEE Sceédaceagdacaadbewesiedaasen x

United States v. Bishop Processing Company,

SF eee PU GS UNEP cc cncccdcccccccesices 3

STATUTES

Clean Air Act Amendments of 1977, 42 U.S.C. §7401 er seq.

§110(a), 42 U.S.C. §7410(a) .... 6... cee eee passim

A Ee IPED Se cccvececececaucscescccce 5-6

§307(d), 42 U.S.C. §7607(d) .......... cece ees passim

ADMINISTRATIVE MATERIALS

Rules of the Supreme Court of the United States,

Pa PPNeGuSScdcccedceneccsdscccccecesesacdccveees 9

Pe HE nob hoc endndececonsccctcsecsicdesses 7-9

ADDITIONAL STATUTORY PROVISIONS INVOLVED

Section 307(d) of the Clean Air Act, 42 U.S.C. §7607(d),

Administrative Proceedings and Judicial Review, provides:

Rulemaking

(d) (1) This subsection applies to

(B) the promulgation or revision of an implementa-

tion plan by the Administrator under Section

110(c) of this title.

(3) Inthe case of any ruleto which this subsection applies,

notice of proposed rulemaking shall be published in

the Federal Register, as provided under Section

553(b) of Title 5, shall be accompanied by a statement

of its basis and purpose and shall specify the period

available for public comment (hereinafter referred to

as the “comment period”). The notice of proposed

rulemaking shall also state the docket number, the

location or locations of the docket, and the times it will

be open to public inspection. The statement of basis

and purpose shall include a summary of —

(A) the factual data on which the proposed rule is

based;

(B) the methodology used in obtaining the data and

in analyzing the data; and

(C) the major legal interpretations and policy consid-

erations underlying the proposed rule.

The statement shall also set forth or summarize and

provide a reference to any pertinent findings, recom-

mendations, and comments by the Scientific Review

Committee established under Section 109(d) of this

title and the National Academy of Sciences, and, if the

proposal differs in any important respect from any of

2

these recommendations, an explanation of the rea-

sons for such differences. All data, information and

documents referred to in this paragraph on which the

proposed rule relies shall be included in the docket on

the date of publication of the proposed rule.

(9) Inthecase of review of any action of the Administrator

to which this subsection applies, the court may reverse

any such action found to be

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law:

(B) contrary toconstitutional right, power, privilege,

or immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right; or

(D) without observance of procedure required by

law, if (i) such failure to observe such procedure is

arbitrary or capricious, (ii) the requirement of

paragraph (7)(B) has been met, and (iii) the con-

dition of the last sentence of paragraph(8) is met.

Clean Air Act, §307(d)(1), (3) and (9).

SUMMARY OF ARGUMENT

One of the consistent statutory features of the Clean Air

Act has been the division of responsibilities between the indi-

vidual states and the Environmental Protection Agency

(“EPA”) pursuant to Section 1 10(a)(2), 42 U.S.C. §7410(a)(2).

- This division of responsibilities was established by the 1970

Amendments to the Clean Air Act. In 1975 it was thoroughly

explored by this Court in the case of Train v. Natural Resour-

ces Defense Council, 421 U.S, 60 (1975). The Clean Air Act

was amended in 1977 but the interstate provisions, added to

Section 110(a)(2)(E), 42 U.S.C. §7410(a)(2)(E), were designed

3

simply to insure that air quality standards were applicd with-

out regard to political boundaries. This was an objective of the

Clean Air Act even before the 1970 Amendments. United

States v. Bishop Processing Company, 423 F.2d 469 (4th Cir.

1970). Neither the addition of Section 110(a)(2)(E), nor any

other amendment changed the federal-state relationships in

Section 110(a)(2).

EPA, acting in accordance with its mandatory responsi-

bility to approve a state implementation plan for achieving air

quality goals which complies with the requirements of Section

110(a)(2), including Section 110(a)(2)(E), approved the imple-

mentation plan proposed by West Virginia for the Harrison

Power Station as well as other sources in West Virginia. Its

approval included an explicit finding that the state plan, as

revised for the Harrison Power Station, would not cause inter-

state pollution. Since questions were raised as to the ability of

West Virginia's implementation plan to provide for attainment

of the secondary National Ambient Air Quality Standard for

sulfur dioxide, EPA advised West Virginia it would have to

submit a new demonstration of adquacy or a new plan witha

new demonstration.

EPA conducted a specific analysis and made explicit find-

ings with respect to West Virginia’s implementation plan revi-

sion and the applicable provisions of Section 110(a)(2)(E).

EPA’s rulemaking record was examined exhaustively by the

Court of Appeals. Extensive briefs were filed by five different

parties. Two oral arguments on requests for stay pending

appeal were heard by the Court of Appeals, as was an orai

argument on the merits.

The decision of the Court of Appeals, issued without an

opinion, reflects the facethat the rulemaking record was suffi-

cient for judicial scrutiny, and that the Court of Appeals found

more than adequate support in the record for EPA’s determi-

nations.

4

ARGUMENT

I. THE DECISION BELOW DOES NOT RAISE QUES-

TIONS CONCERNING FEDERAL-STATE RELA-

TIONSHIPS UNDER THE CLEAN AIR ACT.

In Train v. Natural Resources Defense Council (* Train”),

421 U.S. 60 (1975) this Court examined the relationship

between the EPA and the states in developing and approving

state implementation plans for achieving National Ambient

Air Quality Standards (*“NAAQS"”). In its opinion, this Court

concluded that:

The Agency is plainly charged by the Act with the

responsibility for setting the national ambient air stan-

dards. Just as plainly, however, it is relegated by the Act to

a secondary role in the process of determining and enforc-

ing the specific, source-by-source emission limitations

which are necessary if the national standards it has set are

to be met. Under Section | 10(a)(2)[of the Clean Air Act},

the Agency is required to approve a state plan which

provides for the timely attainnient and subsequent main-

tenance of ambient air standards, and which also satisfies

that section’s other general requirements.

421 U.S. 79 (footnote omitted) (Emphasis added).

Nothing in the instant case suggests that a reexamination

of the federal-state relationship recognized in Train is neces-

sary. The 1977 Amendments to the Clean Air Act added four

new general requirements to Section 110(a) (2), 42 U.S.C.

§7410(a) (2). Among them is Section | 10(a) (2) (E), 42 U.S.C.

§7410(a) (2) (E). This Section requires the Administrator,

before approving an implementation plan, to make a determi-

nation that it contains adequate provisions to prohibit any

stationary source from emitting any air pollutant in amounts

which prevent attainment and maintenance of the NAAQS in

another state. It also requires the Administrator to determine

whether the state implementation plan will interfere with mea-

5

sures in any other state to prevent significant deterioration of

air quality or to protect visibility. In effect, Section 1 10(a) (2)

(E) simply provides that air quality goals are to be achieved

without regard to political boundaries.

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

“Interstate Pollution Abatement”, was added to the 1977

Amendments in order to: (1) insure issuance of a written notice

to all affected states concerning the existence of sources with

potential interstate impacts; and (2) provide a procedure for

one state to open an already approved state implementation

plan, where a major source is emitting in violation of Section

110(a) (2) (E). While Section 110(a) (2) (E) cross references

Section 126, the state and federal relationships embodied in

Section |10(a) (2) are not altered by Section 126. The notice

required by Section 126(a) is simply another requirement

imposed on individual state implementation plans, which the

states must provide for in the first instance. The adequacy of

West Virginia's state implementation plan in this regard is not

an issue in the instant proceedings. Similarly, the governing

federal-state relationships when a plan is reopened pursuant to

Sections |26(b) and (c) were not before the Court of Appeals.’

All that was before the Court of Appeals in the instant case was

EPA's decision pursuant to Section | 10(a) (2).

The proceeding before EPA in the instant case, an imple-

mentation plan revision, was initiated by West Virginia pursu-

ant to Section 110(a) of the Clean Air Act, not Section 126.

Nothing in the 1977 Amendments to the Clean Air Act suggests

that a change was intended in the federal-state division of

responsibilities created by the 1970 Amendments. The states

still have the initial responsibility under Section | 10(a) (2) to

*Pennsylvania, New York and Maine have filed Section 126(b) petitions

with EPA alleging that all major sources of sulfur dioxide in 7 states create air

quality problems in portions of their states. None of the petitions were filed

before November 10, 1980. The EPA's record in this matter has not been

closed and no final decision has been issued.

6

devise the mix of emission limitations they deem best suited to

their particular situation. Train, supra, 421 U.S. at 80. EPA

still must approve the plan if it meets the 12 (rather than the 8 in

the 1970 Amendments) standards contained in Section 1 10(a)

(2). Id. States which feel they are aggrieved by their neighbor's

implementation plan have the opportunity to examine the

basis of EPA’s proposed action, to transmit their comments to

EPA and to seek judicial relief. It is, in fact, the course cross-

petitioner has followed.

EPA's role vis-a-vis the petitioning and responding states,

when a petition is filed pursuant to Section 126(b), and the

petitioning and responding state’s resulting burdens were not

at issue in the Court of Appeals. The decision in Train, supra,

has not been erroded by its progeny. It has been affirmed by the

Courts of Appeals in implementation plan revision cases as

well as cases involving interstate determinations made pursu-

ant to Section 1 10(a) (2) (E). See Florida Power & Light Co. v.

Costle, 650 F.2d 579, 580 (Sth Cir. 1981); Connecticut v. EPA,

656 F.2d 902, 906 (2d Cir. 1981); Mission Industrial, Inc. v.

EPA, 547 F.2d 123 (1st Cir. 1976). Nothing in the record before

the Court of Appeals suggests that this Court's decision in

Train should not be applied in this case. The passage of time

has added to the validity of the holding in Train and its

application in this case is consistent with the statutory struc-

ture which dictated the Train decision.

Il. THE DECISION BELOW DOES NOT DEPART

FROM ACCEPTED PRINCIPLES OF LAW.

Cross-petitioner’s second reason for granting the petition

is that the Court of Appeals erred in not remanding the matter

to EPA to make an explicit determination of compliance with

the interstate provisions of the Clean Air Act. Contrary to

cross-petitioner’s statement, however, EPA did make the

required analysis and findings. EPA was also explicit in

expressing its findings.

7

EPA specifically analyzed the interstate impacts from the

Harrison Power Station on Pennsylvania both before and after

EPA’s voluntary remand. As reported in the notice of pro-

posed rulemaking:

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 SOg standards in Pennsylvania.

J.A. 2) (Federal Register notice, November 7, 1979).

The empirical analysis which led to that finding was also

reported and made part of the record. J.A. 427.

EPA also explained why, in its judgment, the empirical

information it had developed was sufficient to support a deter-

mination that the Harrison Power Station's emissions would

not interfere with Pennsylvania's air quality goals even in areas

where empirical data was not available:

[A]ir pollution does not become more concentrated at

greater distances from a source, it becomes less concen-

trated, so a look at the concentrations as the plume enters

Pennsylvania will give an upper bound on the maximum

concentrations which would occur in the state.

J.A. 425.

As required by the Clean Air Act, EPA approached its

analysis of the air quality impacts of emissions from the Harri-

son Power Station without regard to political boundaries. J.A.

408, 425-427. EPA reiterated its findings in its reexamination

after the remand (J.A. 1449) and in the notice of final rulemak-

ing. J.A. 4; Appendix B to Cross-Petition, p. 28.

At best, cross-petitioner’s argument is one of form over

substance. In the Federal Register notice of final rulemaking

‘Reference to the Joint Appendix submitted to the Court of Appeals for

the Fourth Circuit shall be designated “J.A.” followed by the appropriate

page number.

8

EPA states that: “West Virginia’s proposed SIP revision will

attain and maintain the primary SO2 NAAQS and to this

extent meets the requirements of Section 110(a) of the Clean

Air Act and 40 CFR Part 51.” J.A. 4; Appendix B to Cross-

Petition, p. 28. EPA's determination is clearly not limited to air

quality in West Virginia but includes interstate impacts.

Apparently, Pennsylvania believes that in order to be explicit

the Federal Register notice should have contained 50 separate

findings--one for each state in the United States. It is an

absurd argument.

The controlling provisions of the Clean Air Act require

that a promulgated rule be accompanied by a statement of its

basis and purpose. Section 307(d)(6)( A) of the Clean Air Act,

42 U.S.C. §7607(d)(6)( A). These provisions also require thata

response be made to cach of the significant comments, criti-

cisms and new data submitted in written or oral presentations

during the comment period. Section 307(d)(6)( B) of the Clean

Air Act, 42 U.S.C. §7607(d)(6)( B). The Clean Air Act does not

require, as cross-petitioner seems to suggest, that all of this

information be set forth in the Federal Register or contained in

one document. Nor is this an issue which this Court should

address, since the statutory requirements are clear and it has

already been examined. See United States v. Allegheny-

Ludlum Steel Corp., 406 U.S. 742, 758 (1972), cited in Balti-

more & O.C.T.R. v. United States, 583 F.2d 678, 688 (3d Cir.

1978).

The decision of the Court of Appeals was not based on

post hoc rationalizations by EPA. EPA did refuse cross-

petitioner's request to apply certain long-range modeling tech-

niques which it concluded were unreliable and unsuitable for

regulatory use. J.A. 1453. EPA has no obligation, however, to

employ forms of technical analysis which are not reliable or

which will not advance the precision, completeness or accuracy

of its decisionmaking. Cleveland Electric Illuminating Co. v.

EPA, 572 F.2d 1150 (6th Cir. 1978), cert. denied, 439 U.S. 910

(1978).

9

EPA explained in detail, on the rulemaking record, its

reasons for rejecting the conclusions cross-petitioners sought.

See, e.g., J.A. 444, 1445-1475. EPA's findings are explicit,

precise and casily discernible from the record — a fact which is

supported by the extent to which that record was scrutinized

by the cross-petitioner in its bricf in the Court of Appeals.

After a thorough and careful examination of the relevant

matcrial, EPA found cross-petitioner’s position as io interstate

pollution to be unsound. The Court of Appeals, after review of

extensive briefs, which contained an exhaustive cxamination

of the record, dismissed the petitions for review. The issues

before the Court of Appeals involved no important questions

of federal law which should be settled by this Court. The

decision of the Court of Appeals does not depart from

accepted principles, embodied in the Clean Air Act, that the

Court may reverse the action of the EPA only where such

action is found to be aribitrary, capricious, an abuse of discre-

tion, contrary to constitutional right or in excess of statutory

jurisdiction. Section 307(d)(9) of the Clean Air Act, 42 U.S.C.

§7607 (d)(9). The cross-petition for writ of certiorari should,

therefore, be denied. Rules of the Supreme Court of the United

States, R. 17.1.

CONCLUSION

For the reasons stated above, cross-respondent, Monon-

gahcla Power Company, requests this Court to deny the cross-

petition for writ of certiorari by the Commonwealth of

Pennnsylvania.

Respectfully submitted,

ROSE, SCHMIDT, DIXON & HASLEY

LAWRENCE A. Demast, Esquire

WILLIAM F. Cockrer, Jr., Esquire