# Opposition — 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_1264%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1982 - **Citation:** 456 U.S. 972 ## Text tiLED | Mag 22 1982 No. 81-1524 Iu The Supreme Cowt af the United States October Term, 1981 COMMONWEALTH OF PENNSYLVANIA Cross-Petitioner-Appellant v. ANN GORSUCH, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent-Appellce On Writ of Certiorari to the United States Court of Appeals for the Third Circuit BRIEF OF RESPONDENTS OHIO POWER COMPANY AND APPALACHIAN POWER COMPANY IN OPPOSI- TION TO CROSS-PETITION FOR WRIT OF CERTIO- RARI BY THE COMMONWEALTH OF PENNSYLVANIA E. GLENN ROBINSON Counsel of Record DAVID M. FLANNERY Love, Wise, Robinson & Woodroe P. O. Box 951 Charleston, West Virginia 25323 Telephone: (304) 343-4841 Counsel for Respondents Ohio Power Company and Appalachian Power Company 8 ae ® He varity pvees, cnamcesron, «va QUESTION PRESENTED 1. Did the Administrator of the Environmental Protection Agency review and approve revisions to the West Virginia state implementation plan in accordance with the requirements of the Clean Air Act, including requirements relating to the interstate impacts of air pollution? PARTIES TO CASE BELOW A. Appalachian Power Company! B. Commonwealth of Pennsylvania 1 Respondent Appalachian Power Company, a Virginia corporation, is a subsidiary of American Electric Power Company, Inc., a public utility holding company registered as such under the Public Utility Holding Company Act of 1935, 49 Stat. 838 (August 26, 1935); 15 U.S.C. §79 et seq. Appalachian Power Company is therefore affiliated with the sub- sidiaries of American Electric Power Company, Inc. The subsidiar- ies of American Electric Power Company, Inc., include American Indiana & Michigan Electric Company, Kentucky Power Company, Kings- port Power Company, Ohio Power Company, Michigan Power Company, Wheeling Electric Company, Cedar Coal Co., Central Appalachian Coal Company, Price River Coal Company, Inc., Cardinal Operating Com- pany, Central Ohio Coal Company, Kanawha Valley Power Company, Southern Appalachian Coal Company, Central Coal Company, Southern Ohio Coal Company, Windsor Power House Coal Company, Central Operating Company, Columbus and Southern Ohio Electric Company, Simco, Inc., Colomet, Inc., Black Hawk Coal Company, Beech Bottom Power Company, Inc., Franklin Real Estate Company, Indiana Franklin Realty, Inc., Michigan Electric Power Company (inactive), Michigan Gas Exploration Company (inactive), Twin Branch Railroad Company (inactive), West Virginia Power Company (inactive), and a partial interest in Ohio Valley Electric Corporation and Indiana-Kentucky Electric Corporation. Council of Senior West Virginians, Inc. Group Against Smog and Pollution, Inc. Monongahela Power Company Monongahela County Citizens for Clean Air Mountain Comunity Union, Inc. eS FP Ohio Power Company” — . State of West Virginia United States Environmental Protection Agency West Virginia Citizens Action Group, Inc. . oe West Virginia Highlands Conservancy, Inc. 2Respondent Ohio Power Company, an Ohio corporation, is also a subsidiary of said American Electric Power Company, Inc. and is there- fore affiliated with the subsidiaries of American Electric Power Company, Inc. listed in Footnote 1. TABLE OF CONTENTS PACE SY IID scinsnsspeeimierntinetininenconietinnitimeiimmsiaannsanis i I oo nccniindsantinescninaienieciesaiapeanbesenianapuinna i IED sicctnnnrtinrncmnecessiseiggheincnisininininnabiatndieteins iii I cin sachicinendcinaseniieseesianicniesibupiigenitsipucniisnibasiadenbiibde l RNIN TERI? cnuisrisisiesnnsunsnss-eccnsisncvinsisesisaneapenensneetnennidininescoapitin 2 TEESE ea ae ee 2 Statutory and Constitutional Provisions Involved _________- 2 Ee 3 Argument: I. The Issue As To the Mitchell Plant Is Not Suffi- ciently Important To Warrant Attention By This ae ny or 7 II. The Third Circuit's Decision Gave Full Consid- eration To The Issue And Decided It Correctly. 9 III. The Cross-Petitioner Has Misstated Essential ABR Ee AE ee OT he ll TABLE OF CITATIONS Cases: PacE Communist Party v. S.A.C. Board, 367 U.S. 1 (1961) --.. ll Federal Trade Commission v. Standard Oil Company, oo SE ere ll General Talk. Pictures Corp. v. Western Electric Co., SE CO EE ssintnnceclnnadnemeutinncwusnmuatse 9 United States v. Johnston, 268 U.S. 220 (1925) __-__-__ 9 Miscellaneous: Clean Air Act: Section 110(a), 42 U.S.C. Sec. 7410(a) ~-------_- 9, 11 Section 110(a) (2), 42 U.S.C. Sec. 7410(a)(2) ------- 7 Section 110(a)(2)(A), 42 U.S.C. Sec. 7410(a) a et A I a 8 Section 110(a)(2)(A), 42 U.S. Sec. 7410(a) IED tiihnicteathnnerecrvstinmdncnnetpiaacianngs 8 Section 110(a)(2)(E), 42 U.S.C. Sec. 7410(a) I caiviersinhsaislasinicsessgiihaniideuessiecninaeiiihiveresaeninins 8, 9, 12 Section 110(a)(2)(E), 42 U.S.C. Sec. 7410(a) ee >: eee eee 8 Section 126, 42 U.S.C. Sec. 7426 -......-...---___- 8,12 SPEDE CD entitinnnmaniicnnnundinmmnmena 12 ee NN IID cxccentpetenseeerninenceereetinierniemeneninininibesis ll Ee 9, 11 es eens cptncsinseniinantsceeneneieinnie 10 OPINIONS BELOW Respondents Ohio Power Company and Appalachian Power Company accept the statement of opinions below contained in the Cross-Petition for Writ of Certiorari. JURISDICTION Respondents Ohio Power Company and Appalachian Power Company accept the statement of jurisdiction contained in the Cross-Petition for Writ of Certiorari. STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED Respondents Ohio Power Company and Appalachian Power Company accept the presentation of statutory and constitutional provisions involved as contained in the Cross-Petition for Writ of Certiorari. STATEMENT OF THE CASE Although the Commonwealth of Pennsylvania has acknow- ledged in its Cross-Petition that this case is complex, it has not provided sufficient factual background to enable the Court to understand its actual complexity. Accordingly, we shall supple- ment the Statement Of The Case only with respect to the nature of the revisions which were subject to approval by the respondent United States Environmental Protection Agency {“EPA”] and by the United States Court of Appeals for the Third Circuit, emphasizing those actions which analyzed and considered the issue of long-range transport of, and the interstate impact of, the air pollutants which were the subject of the re- visions to the West Virginia state implementation plan. At the outset of any discussion of the revisions to the West Virginia plan, it should be understood that EPA’s action of November 9, 1978 approved the following amendments to that plan: (a) Section 3.01(2) was added to the West Virginia Air Pollution Control Commission’s Regulation X to provide for the Mitchell Plant of respondent Ohio Power Company an emission limitation of 7.5 pounds of sulfur dioxide per million B.T.U. of total actual heat input; (b) Section 3.03(1) was added to Regulation X to provide for the Harrison Plant of respondent Monon- gahela Power Company an emission limitation of 5.12 pounds of sulfur dioxide per million B.T.U. of total actual heat input; (c) The 2.0 pound per million B.T.U. “secondary” emission factor (previously contained in Section 3.01 (b) and 3.03(b) of Regulation X) was deleted. That factor formerly applied to the Sporn, Mitchell and Kammer plants of respondents Ohio Power Company and Appalachian Power Company as well as other plants; 3 (d) A plant-wide limitation of 45,000 pounds per hour on the discharge of sulfur dioxide was deleted from Sections 3.01(b) and 3.03(b) of Regulation X; and (e) Sections 6.01 and 6.02 of Regulation X were amended to increase the averaging time for compliance tests from two (2) hours to twenty-four (24) hours. This revision affected all West Virginia power plants, including facilities of respondents Ohio Power Com- pany and Appalachian Power Company. However, the brief filed with the Third Circuit by the Common- wealth of Pensylvania on June 1, 1979 made it clear that Penn- sylvania was “challenging only the relaxed emission limitations for the Mitchell and Harrison power plants,” as set forth in paragraphs (a) and (b) above. Following a remand to EPA ordered by the Third Circuit on July 10, 1979, EPA undertook a comprehensive analysis of the merits of the proposed revisions to the West Virginia plan as they dealt with the Mitchell and Harrison plants. At the heart of EPA’s analysis was its use of the CRSTER mathematical model. This model was capable of examining points of maximum impact of emissions at distances up to 50 kilometers. Since the Mitchell Plant is located approximately 26 kilometers from Pennsylvania, EPA’s use of this mathematical model enabled it to examine points of maximum impact of sulfur dioxide con- centrations within Pennsylvania. EPA’s and the Third Circuit’s approval of the West Virginia plan revisions did not result in any actual increase in emissions from the Mitchell Plant. The revisions simply permitted this facility to continue to utilize a fuel supply of long standing. The record below plainly showed that EPA carefully evaluated the impact of the authorized Mitchell Plant emissions to de- termine whether the resulting ambient concentrations would prevent the attainment and maintenance of national ambient air quality standards within Pennsylvania. After using the model 4 to examine specific points within that state which were relatively close to the West Virginia border, EPA concluded (a) that aimbient sulfur dioxide concentrations caused by emissions from the Mitchell Plant were but a small and insignificant fraction of the national ambient air quality standards at those points, and (b) that since ambient concentrations decrease with distance, the concentrations caused by revisions of the West Virginia plan would be even less significant at greater and greater distances into Pennsylvania. The Commonwealth itself has determined that sulfur dioxide ambient problems in Pennsylvania are not encountered until one moves east from West Virginia into the river valleys near Pittsburgh. The geographical areas of Penn- sylvania which are closer to West Virginia have been designated by Pennsylvania and EPA as “attainment” areas. EPA also made an extensive analysis of Pennsylvania's claims that EPA should have employed other mathematical models which it believed would have been more appropriate than the one EPA elected to use. EPA carefully evaluated each of these models suggested by Pennsylvania, including those which pur- ported to predict long-range impact of sulfur dioxide emissions, and concluded that those models were not appropriate for use in this case. It was on the basis of its use of the conservative CRSTER model, in conjunction with extensive meteorological data and exceedingly conservative air quality “background” data, that EPA responded to the Third Circuit’s remand by taking action on November 10, 1980 to approve the West Virginia state im- plementation plan revision with respect to the Mitchell Plant. It found, and the Third Circuit affirmed, that the allowed emissions from the Mitchell Plant were adequate to attain and maintain the primary national ambient air quality standards for sulfur dioxide. However, on the basis of the CRSTER model- ing indicating one computer predicted violation of secondary ambient air quality standards at a point in West Virginia - not Pennsylvania - EPA also took action on November 10, 1980, to issue a notice of deficiency with respect to the ability of the West Virginia plan revision to attain and maintain the secondary 5 standards. This action by EPA was also approved by the Third Circuit. After careful review of what must surely have been one of the most extensive technical and legal records of a state adopted emission limitation ever approved by EPA under the Clean Air Act, the Third Circuit on September 22, 1981 denied the peti- tions for review of EPA’s action. ARGUMENT While the West Virginia state implementation plan revisions involved in this proceeding impacted upon several electric power generating facilities of respondents Ohio Power Company and Appalachian Power Company, at no time did the Cross-Petition- er in the cases below object to the application of the revisions to any facilities other than the Mitchell Plant of respondent Ohio Power Company and the Harrison Plant of respondent Monon- gahela Power Company. Since the Cross-Petition also focuses on just one facility of respondents Ohio Power Company and Appa- lachian Power Company - the Mitchell Plant - this brief will be limited to issues which pertain to that facility only. Since the Cross-Petitioner did not raise questions below as to the applica- bility of the West Virginia plan revision to other facilities of these respondents, it is manifest thas this Court should on that ground alone deny the writ sought as to all facilities of respon- dents Ohio Power Company and Appalachian Power Company other than the Mitchell Plant. I. The Issue As To The Mitchell Plant Is Not Suffi- ciently Important To Warrant Attention By This Honorable Court. With respect to the Mitchell Plant the Cross-Petitioner re- quests this Court to review the decision of the United States Court of Appeals for the Third Circuit for two principal reasons. The first assigned reason is Pennsylvania’s claim that EPA did not discharge its legal obligation under Section 110(a)(2) of the Clean Air Act to evaluate interstate pollution effects of the West Virginia plan revisions. The second is to determine whe- ther EPA in fact properly evaluated interstate pollution ef- fects in this case. For reasons now to be considered, neither claim of Pennsylvania is of sufficient importance to justify the exercise of this Court’s discretion to grant a writ of certiorari. In support of its first contention, the Commonwealth of Pennsylvania argues that the 1977 Amendments to the Clean Air Act impose a “new tension” on the federal-state relationship 7 and that this Court should therefore seize upon this “oppor- tunity” to review that relationship. The Commonwealth's por- trayal of this case is erroneous in that the claimed “new tension” is not at issue here. The substantive legal test to be applied to the West Virginia state implementation plan revision is whether it prevented the attainment or maintenance of primary or secon- dary national ambient air quality standards generally {Section 110(a)(2)(A)], or in another state [Section 110(a)(2)(E)], or whether it significantly contributed to levels of air pollution in excess of national ambient air quality standards outside West Virginia [Section 126]. The ultimate test established by the 1977 Amendments was and is fundamentally the same as the test created by the provisions of the Clean Air Act enacted in 1970 [Section 110(a)(2)(A) (1970) and Section 110(a)(2)(E) (1970) ]}. In both instances EPA has been required by statute to approve a state implementation plan revision if compliance with national ambient air quality standards is assured in that state or another state. This fact was not disputed by EPA or any of the parties to the case below. It was the test recognized and applied by the court below. Therefore, the first reason assigned by Pennsylvania for review by this Court is plainly and simply a straw man issue which does not merit attention by this Court. The legal standards for review are not, and never have been, in dispute. With respect to the second of its assigned reasons, Pennsyl- vania argues that EPA did not discharge its obligations under the Clean Air Act because it allegedly failed to consider inter- state pollution effects and to make findings required by the Clean Air Act. The fact is, however, that EPA made a thorough analysis of the capabilities of the revised West Virginia plan to attain and maintain national ambient air quality standards, both within and without West Virginia. Indeed, EPA specifically examined points of maximum impact of Mitchell Plant emis- 8 sions within Pennsylvania. On the basis of its technical analyses, EPA also made the only finding which is required of it under the Clean Air Act in this context, as follows: “West Virginia’s proposed SIP revision will attain and maintain the primary SO, NAAQS and to this extent meets the requirements of Section 110(a) of the Clean Air Act and 40 CFR Part 51.” 45 Fed. Reg. 74,478 (1980); Cross-Petition, Appendix B. A finding of compliance with Section 110(a) necessarily includes compliance with that part of Section 110(a) which relates to interstate impacts [Section 110(a) (2) (E)]. The only issue which arguably remains, therefore, is whether EPA’s analysis of the record was correct, as the Third Circuit found that it was. Such an issue would of necessity turn on the particular facts of this case and would be of significant interest only to the parties to this case. In requesting that its Cross-Peti- tion be granted, the Commonwealth of Pennsylvania in essence asks this Court to review the extensive and complex record which was developed below to determine whether EPA’s finding was factually correct. As this Court has stated, “[w]je do not grant certiorari to review evidence and discuss specific facts.” United States v. Johnston, 268 U.S. 220, 227 (1925). See also General Talk. Pictures Corp. v. Western Electric Co., 304 U.S. 175, 178 (1938). The Cross-Petition raises only issues of fact without significance beyond this case and the Third Circuit’s ruling upon review of the record should be accorded great weight. Nothing in the Cross-Petition suggests any compelling reason for granting a Writ of Certiorari upon the record below. II. The Third Circuit’s Decision Gave Full Consideration To The Issue and Decided It Correctly. The Clean Air Act places upon EPA the fundamental obliga- tion to approve a revision to a state implementation plan when it finds that the national ambient air quality standards will not be violated. 9 In this case EPA’s extensive analysis of the West Virginia plan revision began with the utilization of a mathematical model to predict the location and amount of the ambient air pollution which might result from the emissions authorized by the revision. The modeling work was not limited to state boundaries. It in- tentionally searched for the worst case or largest impact where- ever it might occur. EPA having rationally based its judgment upon a worst case analysis it could justifiably be certain that concentrations farther from the source would be within permis- sible limits. As a result of the remand ordered by the lower court, EPA conducted specific modeling of receptor points within Pennsyl- vania itself. These points were deemed by EPA to be the points which reflected the maximum pollutant concentration which could be experienced in that state. Notwithstanding its exhaustive analysis, EPA found no fact situation in which a violation of either the primary or the secon- dary national ambient air quality standards would occur in Pennsylvania. The only predicted violation of any st dard which was found by EPA was of the secondary standard and that occurred at a point in West Virginia. It was on the basis of this one predicted violation that EPA issued a notice of deficiency on November 10, 1980 and called for West Virginia to submit a revised control strategy demonstration establishing compliance with the secondary standard. 45 Fed. Reg. 74,520 (1980), Cross- Petition, Appendix C. The facts relating to these complex technical issues were fully considered by the Third Circuit. It also considered extensive arguments by the Commonwealth of Pennsylvania and others which attacked EPA’s conclusions. Indeed, all of the arguments contained in the Cross-Petition here were considered by the Third Circuit - and found to be without merit. Moreover, the Third Circuit was aware of the fact that Penn- sylvania’s air quality not only will remain unaffected by the emissions authorized by these revisions, but also that Pennsyl- vania’s air quality had actually improved to such an extent that 10 it could amend its air quality status designation from “non-at- tainment” to “attainment” of national ambient air quality stan- dards in all areas of western Pennsylvania except its highly in- dustrialized river valleys. 45 Fed. Reg. 9,262 (1980). The Third Circuit having decided these factual issues upon a fair assessment of the record, this Court should not grant the Commonwealth of Pennsylvania’s Cross-Petition for a writ of certiorari. Federal Trade Commission v. Standard Oil Company, 355 U.S. 396, 398 (1958); Communist Party v. S.A.C. Board, 367 U.S. 1 (1961). III. The Cross-Petitioner Has Misstated Essential Facts. The Commonwealth of Pennsylvania has incorrectly repre- sented that EPA limited its conclusion that the West Virginia plan revision meets the requirements of attainment and main- tenance of national primary ambient air quality standards for sulfur dioxide to the impact of the revision upon West Virginia alone. On page 16 of its Cross-Petition it stated: “The only determination by EPA under Section 110(a) set forth in the notice of final rulemaking was a determination under Section 110(a)(2)(A) that the plan meets the requirement of attainment and maintenance of national primary ambient air quality standards for SO, in West Virginia (emphasis add- ed).” In point of fact, EPA’s determination of conformity with the requirements of Section 110(a) was not limited to West Vir- ginia. EPA’s own statement of its conclusion in this regard was as follows: “West Virginia’s proposed SIP revision will attain and maintain the primary SO, NAAQS and to this extent meets the requirements of Section 110(a) of the Clean Air Act and 40 CFR Part 51.” 45 Fed. Reg. 74,478 (1980); Cross-Petition, Appendix B. 1] As has been noted, this finding necessarily inclucles the finding that the revision did not prevent the attainment and mainten- ance of the national standaids in Pennsylvania. See Section 110(a) (2) (E) of the Clean Air Act. The Cross-Petitioner has also misstated certain essential facts on page 17 of its Cross-Petition. There it states that neither of EPA’s “Rationale Documents” contained analysis 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.” An examination of the Rationale Documents reveals that in fact just the opposite occurred. The Rationale Document in support of EPA’s final rulemak- ing of November 10, 1980 demonstrates that EPA considered those issues. On pages 17 and 18 EPA stated that it had com- missioned the “development of models to predict the impact of pollution emissions hundreds of miles from their source.” It went on to state, however, that such models had not been ap- proved for use in modeling individual source emission limita- tions. With respect to the interstate transport of pollutants re- quirements of Section 110(a)(2)(E) and Section 126 of the Clean Air Act, EPA stated on page 18 of the Document that it had determined the point of maximum impact of emissions from the Mitchell Plant to be about one mile from that facility in West Virginia. EPA observed that since pollution concen- trations decrease at longer distances and “rapidly drops to insig- nificant levels” there was simply no reason to conduct additional modeling work at greater distances from West Virginia than the receptor points in Pennsylvania which it had examined. Interstate impacts and long-range transport were also con- sidered even more explicitly in EPA’s technical analysis in sup- port of its proposed rulemaking action published at 44 Fed. Reg. 64,439 on November 7, 1979. That analysis, prepared by William Belanger, is dated October 26, 1979. At pages 19 through 23 of that document appears extensive discussion concerning the impact of the West Virginia state implementation plan revision 12 on air quality in Pennsylvania. The issues relating to long-range transport of air pollutants were likewise considered at pages 27 and 28 of the technical analysis. Since the Cross-Petitioner has inaccurately stated essential facts necessary for an adequate understanding of the points re- quiring consideration in this proceeding, the Cross-Petition for Writ of Certiorari should be denied under the provisions of Rule 21.5 of this Court. CONCLUSION The issue and underlying facts in the Cross-Petition having been fully addressed by the United States Court of Appeals for the Third Circuit, there being no question of law sufficiently important to merit attention by this Court, and the Cross-Peti- tioner having misstated essential facts, the Cross-Petition for Writ of Certiorari by the Commonwealth of Pennsylvania should be denied. Respectfully submitted, OHIO POWER COMPANY and APPALACHIAN POWER COMPANY By Counsel E. GLENN ROBINSON Counsel of Record DAVID M. FLANNERY Counsel for Respondents Ohio Power Company and Appalachian Power Company March 19, 1982 13 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1264%3A4. Public record. Not legal advice.