Amicus Brief — Public Service Co. of Indiana v. United States Environmental Protection Agency

No. 82-512

In the Supreme Court of the

OcToBer TerM, 1982

PuBLIC SERVICE COMPANY OF INDIANA, INC., PETITIONER

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY AND ANNE M. GorSUCH

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Rex E. Lee

Solicitor General

Caro_ E. DINKINS

Assistant Attorney General

Dirk SNEL

Nancy S. BRYSON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Ropert M. Perry

Associate Administrator and

General Counsel

CHRISTOPHER HERMAN

Attorney

Environmental Protection Agency

Washington, D.C. 20460

QUESTION PRESENTED

Whether the Administrator of the Environmental Pro-

tection Agency has authority under the Clean Air Act to

approve that portion of a revision to a state implementation

plan which complies with all statutory requirements and to

disapprove that portion of the revision which does not.

(I)

TABLE OF CONTENTS

Page

Copteioms Belew cc „ „„ „„ „„ 66 66 6 0 0 l

.es eee eee eee l

. .o. „„ I

„ „ „„ „ „ „„ 6 „ „ 6 „66 66 666 6606 66 0 7

. eee eee eee 13

TABLE OF AUTHORITIES

Cases:

Citizens for a Better Environment v. EPA,

eerst eee eee eee 7

District of Columbia v. Train, 521 F. 2d

971, vacated, 431 U. S. hhiuů r 7

Illinois v. Celotex Corp., 516 F. Supp.

SD chacédvstccscdcecceccceuseuestecvennss 7

Insurance Corp. of Ireland v. Compagnie

de Bauxites de Guinee, No. 81-440

I 11

Mansfield, Coldwater & Lake Michigan Ry.

¥. Bova, 100 UB. dss 11

Mountain States Legal Foundation v. Costle,

ee. es eee ee eee 12

Pacific Legal Foundation v. Gorsuch,

Nos. 81-4442 and 81-7060 (9th Cir.

II 12

Sierra Club v. Indiana Kentucky Electric

Corp., No. NA 81-7-C (S. D. Ind. May II.

17„»„ 7

IV

Page

Cases—Continued:

Sierra Club v. Indiana & Michigan Electric

Corp., No. NA 81-8-C (S.D. Inc. June 5,

1—- 7

Train v. Natural Resources Defense Council,

III 3, 6. 7, 8

Union Electric Co. v. EPA,

eT e 0 00000 8

Utah International v. EPA, 478 F.2d 126 ...... 10

Statutes, regulations and rules:

Clean Air Act Amendments of 1970, Pub. L.

No. 91-604, 84 Stat. 1976, 42 U.S.C.

(1976 ed.) 1857 ef S “ũ ꝓe „„ l

Section 307(b), 42 U.S.C. (1976 ed.)

1 10

Clean Air Act Amendments of 1977, 42 U.S.C.

(Supp. I) 7401 ef S “hint 1

Section 10 10a) (3), 42 U.S.C. 7401(a)(3) ...... 2

Section 107 (a), 42 U. S. C. 740%%j))0: 2

Section 109(a)(i)(A), 42 U.S.C.

TEBPIAMIMA) .ccccccccccccccccccccccces 2

Section 110, 42 U.S.C. 741)0h;h;0h;h0h0h0h0h0 11

Section 110(a), 42 U.S.C. 74100( ap 2

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

1 2, 6, 7, 8, 11

Section 1 10(a)(2)(A)-(K), 42 U.S.C.

T41O(aN2MA)(K) 2... )) 6

Section 110(a)(3), 42 U.S.C.

POSED cccccccccccccccccces 6, 8, 11, 12

Section 110(a)(3)(A), 42 U.S.C.

POIBIAMOMA) cccccccccccccccccgeccoses 2

Vv

Page

Statutes, regulations and rules—Continued:

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

Section 110(c)(1), 42 U.S.C.

TTT TT 2, 9, 10

Section 110(c)(1)(A)-(C) 42 U.S.C.

erer eee eee sees 10

Section IIA a2). 42 U.S.C. 7414(a)(2) ...... 4

Section 307(b), 42 U.S.C. 7607(b) .... 6, 10, 11

40 C. FR.

esse sees 2

Section 52.77 ·2˙⸗˖ʒ ) 3

eres eee ee bee 3

eee eee 3

rern sees 11

Ind. Admin. R. 325.

Be Eee OPED coccccccccccecccececcecces 3

— 3

— 3, 4. 5, 8. 9. 10, 11. 12

Miscellaneous:

37 Fed. Reg. (1972):

ese eee eee 3

eee eee 3

In the Supreme Court of the Anited States

OctToper Term, 1982

No. 82-512

Pus.Lic Service COMPANY OF INDIANA, INC., PETITIONER

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY AND ANNE M. GorsuCH

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A3-A36) is

reported at 682 F.2d 626. The opinion of the district court

(Pet. App. A37-A50) is reported at 509 F.Supp. 720.

JURISDICTION

The judgment of the court of appeals was entered on June

25, 1982 (Pet. App. A51). The petition for a writ of certio-

rari was filed September 27, 1982. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Clean Air Act, as amended in 1970, Pub. L.

No. 91-604, 84 Stat. 1976,' established a federal-state

‘After the 1970 Amendments, the Act was codified at 42 U.S.C. (1976

ed.) 1857 et seq. In 1977, the Act was again amended and was recodified

at 42 U.S.C. (Supp. ) 7401 et seq. Citations herein are to the present

codification at Supplement I of 42 U.S.C. unless otherwise stated. The

provisions of the Act relevant to this case were not materially changed

by the 1977 Amendments.

2

partnership which recognized that “the prevention and con-

trol of air pollution at its source is the primary responsibil-

ity of States and local governments.” Section 10I(a)(3), 42

U.S.C. 740Ka)(3). The Act directed the Environmental Pro-

tection Agency (“EPA”) to establish primary and secondary

National Ambient Air Quality Standards (“NAAQS”) for

“each air pollutant for which air quality criteria have been

issued.” Section 109(a)(1)(A), 42 U.S.C. 7409(a)( 1)(A).? The

Act also required each state to adopt a state implementation

plan (“SIP”) imposing emission limitations upon sources of

air pollution and containing such other measures as were

necessary to ensure attainment and maintenance of the

NAAQS by the statutory deadline. Sections 107(a) and

110(a), 42 U.S.C. 7407(a) and 7410(a). The Act directed

each state to submit its SIP to the Administrator of EPA for

approval or disapproval of “such plan, or any portion there-

of.” Section 1 10(a)(2), 42 U.S.C. 7410(a)(2).

The Administrator was required to approve the SIP if he

found t nat it provided for timely attainment and mainten-

ance of he NAAQS and otherwise complied with the Act's

requirements. Section 1 10(a), 42 U.S.C. 7410(a). However,

if the Administrator found that the SIP failed to comply

with any of the Act's requirements, he was directed to

disapprove those portions of the SIP that failed to comply

and promulgate regulations to establish a lawful SIP for the

state. Section 110(c)(!), 42 U.S.C. ich). The Act

authorized each state to revise its SIP as necessary and

empowered the Administrator to approve “any revision of

aa implementation plan” if the revised SIP would continue

to ensure the attainment and maintenance of the NAAQS.

Section 1 10(a(3)(A), 42 U.S.C. 7410(a)(3)(A). Generally,

?Pursuant to this authority, the Administrator has promulgated

primary and secondary NAAQS for sulfur dioxide (SO2), particulate

matter, carbon monoxide (CO), nitrogen dioxide (NO2), hydrocarbons

(HC), photochemical oxidants and lead. 40 C.F.R. Part 50.

3

once a SIP is approved, it remains effective until the Admin-

istrator approves a revision to the plan. See Train v. Natu-

ral Resources Defense Council, Inc., 421 U.S. 60, 92 (1975).

2. Pursuant to this regulatory scheme, the State of Indi-

ana submitted a SIP to EPA for approval in January 1972.

That SIP contained a provision called Rule APC-3 (“1972

APC-3”) entitled “Smoke and Other Visible Emissions”

which imposed a limitation on smoke emissions from any

combustion source of 40% opacity’ with some limited

exceptions. This provision was approved. See 37 Fed. Reg.

10842, 10864 (1972); 40 C.F.R. 52.773 and 52.776(c) (Pet.

App. Al22-A152).

In November 1974, Indiana rewrote Rule APC-3 (“1974

APC-3”) and submitted it to EPA for approval as a SIP

revision. The 1974 APC-3, entitled “Visible Emissions and

Malfunctions,” continued the 1972 APC-3'’s maximum

opacity limitation of 40% (Pet. App. A94-A95), but it also

created for the first time an exemption to the opacity limita-

tion permitting a source to exceed the limitation for a total

of 1S minutes each 24-hour period (ibid.).4 On October 28,

1975, the Administrator approved most of the 1974 APC-3

as a revision to Indiana's SIP. 40 Fed. Reg. 50032 (Pet.

Opacity is defined in 40 C. F. R. 60.2 as “the degree to which emis-

sions reduce the transmission of light and obscure the view of an object

in the background.” Opacity generally is measured by the so-called

Ringelmann chart which is referred to in APC-3. The Ringelmann chart

is defined in APC- as “{t}he chart published and described in the U.S.

Bureau of Mines Information Circular 8333, and on which are illus-

trated graduated shades of gray to black for use in estimating the light

obscuring power of smoke.” 3 Ind. Admin. R. 325 IAC 1-1-2.

‘The amended version also provided temporary exemptions from the

opacity limitation for periods of start-up, soot-blowing, or malfunc-

tions. It continued to equate violations of the opacity limitations with

violations of the applicable particulate emission limitation (Pet. App.

A94-A98).

4

App. Al59-A165). However, the Administrator disapproved

the 15-minute exemption period because Indiana had failed

to demonstrate that this new exemption would not interfere

with the attainment and maintenance of the NAAQS (id. at

AIS9-A162).5

3. On January 7, 1980, EPA applied to the United States

District Court for the Southern District of Indiana for

warrants to inspect two electric generating stations owned

by petitioner Public Service Company of Indiana, the Gib-

son Station in Gibson County, Indiana and the Wabash

River Generating Station near Terre Haute, Indiana. The

warrant applications were based upon EPA's broad statu-

tory monitoring and inspection powers“ and affidavits

demonstrating probable cause to believe that the stations

were in violation of APC-3 (Pet. 5-6; Pet. App. AS5-A6,

In so doing, the agency found that the exemption appeared super-

fluous for power companies:

New APC-3, the visible emission regulation, varies from the

approved regulation in several respects, the most significant of

which is the introduction of a 15-minute exemption period in each

24-hour period. The power companies submitted comments to the

effect that such an exemption is necessary for them when starting

fires or cleaning units. Since sections 2(a) and 2(b) of APC-3

already provide an exemption to visible emission requirements for

sources in such circumstances, this comment appears

to be superfluous.

(Pet. App. Al6l). In the courts below, petitioner contended (id. at A8

A45S-A46) that EPA had not in fact approved the 1974 version of APC-3.

Boch courts rejected that argument (id. at Al9-A22, A46) and petitioner

has specifically stated that it is not seeking review on that issue (Pet. 5

n.3).

Section | 14(a)(2) of the Clean Air Act, 42 U.S.C. 7414(a)(2), grants

to EPA's Administrator “or his authorized representative the right to

enter and inspect premises occupied by the owner or operator of an

emission source. The petition does not challenge the constitutionality or

applicability of this provision.

5

A42-A45).’ The district court issued the two warrants. After

the inspections had taken place, petitioner unsuccessfully

moved to quash the warrants (id. at Ac).

Petitioner then filed this action in the district court seek-

ing declaratory and injunctive relief (Pet. App. A6). So far

as relevant here, petitioner sought a declaratory judgment

that the 1974 APC-3 was not enforceable because it was not

part of the federally approved Indiana SIP. Petitioner

argued that the Administrator had no statutory authority to

approve only part of a SIP revision and that his approval of

the 1974 APC-3 without the 15-minute exemption included

by Indiana rendered the entire approval invalid (id. at A45-

A47).® The district court, denying all relief, rejected this

argument and held that the challenged actions of the EPA

were proper (id. at A6, A4l).

The Seventh Circuit affirmed. The court of appeals held

that the Administrator’s authority to approve SIP revisions

was co-extensive with his authority to approve initial

SIPs in general and that the Administrator's partial appro-

val of the 1974 APC-3 was an appropriate exercise of that

Both applications recited concern over violations of APC-3 based

upon continuous monitoring data submitted by petitioner to the Indi-

ana Air Pollution Control Division (Pet. App. A44-A45). Warrants

were sought after EPA inspectors at both facilities were denied admit-

tance because they refused to sign a “Visitor's Admission

which contained a waiver of liability provision (id. at AS, A4l-A42).

*Petitioner also sought () a declaratory judgment that the warrants

were not supported by probable cause, authorized overly broad inspec-

tions, and authorized the seizure or demand of documents stored at

locations other than those specifically authorized for inspection, and (2)

injunctive relief preventing future inspections and enforcement actions

resulting from information obtained pursuant to those warrants (Pet.

App. A42). The court of appeals affirmed the district court's disposition

of these issues against petitioner (id. at A26).

6

authority (Pet. App. Al3-Al9).° At the outset of its discus-

sion of petitioner's argument, the court of appeals noted

that EPA's construction of the Clean Air Act was entitled to

considerable deference (id. at Al3). See Train v. Natural

Resources Defense Council, Inc., supra, 421 U.S. at 87. The

court of appeals found that the purpose of the Administra-

tor's approval power over the inital SIPs and SIP revisions

was identical: “to ensure that the states SIPs comply with

the minimum requirements of [Section 1 10(a)(2)(A)-(K)] 42

U.S.C. S 7410(a)(2)(A)-(K)” (Pet. App. Al4). The court then

noted that, while Section | 10(a)(2) authorizes the Adminis-

trator to approve or disapprove the original SIP “or any

portion thereof” and Section | 10(a)(3) authorizes approval

simply of any “revision,” the two provisions could be read

consistently.

Applying this Court's definition of the term “revision” in

Train, supra, 421 U.S. at 89, as “a change in the plan itself

which deletes or modifies [a] requirement,” the court of

appeals held that Section | 10(a)(3) authorizes the Adminis-

trator to approve or disapprove any change in a SIP which

differs from the original SIP (Pet. App. at Al,). The court

of appeals found that this reading of the statute was consist-

ent with the purpose of the approval process, that is, to

n the court of appeals, EPA contended (hat petitioner's challenge to

EPA's partial approval authority was time-barred and was brought in

the wrong federal court (Appellee s Br. 35-37). Section 307(b) of the

Clean Air Act, 42 U.S.C. 7607(b), as it existed in 1975, required that

challenges to the Administrator's approval of a SIP revision be made by

petitioning the appropriate court of appeals within 30 days of the action

in question. Because of Section 307(b)'s time bar and its designation of

the court of appeals as the initial forum for judicial review, EPA

contended that district court jurisdiction was wholly lacking in this

case. The Seventh Circuit agreed that “issues relating to the Administra-

tor rationale for partially approving the 1974 APC-3" were time-

barred (Pet. App. A22-A23 & n.I7), but held that it did have jurisdiction

to consider “the general issue of the Administrator's power to partially

approve a revision“ (id. at 23 n.17).

7

ensure the ongoing attainment and maintenance of the

NAAQS (id. at Al4-Al5). The court rejected petitioner's

argument that the Administrator's authority should be

limited to verbatim approval of revisions to SIPs, finding

that it “would elevate form over substance” to limit the

Administrator to approving or disapproving the entire revi-

sion to a SIP when only one portion of the revision was

inconsistent with the Act's requirements (id. at Al4-Al5).'°

ARGUMENT

The decision of the court of appeals is correct, ij does not

conflict with the decisions of this Court or any other court

of appeals, and does not warrant further review.

I. Petitioner suggests (Pet. 7-12) that the decision below

conflicts with this Court’s decisions in Train v. Natural

Resources Defense Council, Inc., 421 U.S. 60 (1975), and

In reaching this result, the court of appeals rejected petitioner's

argument that partial approval would permit the Administrator to

approve something not actually adopted by the state. The court noted

(Pet. App. Al6) that the Administrator “is clearly permitted by [Section

110(a)(2),] 42 U.S.C. § 7410(a)(2)” to approve portions of the original

SIP and that Lalppellant has provided no reason why regulations

should be severable for approval purposes when submitted as part of

the original SIP but not when they are submitted as revisions to the

SIP” (Pet. App. Ale). The court noted further (id. at A15-A16) that the

cases cited by petitioner in support of its contrary proposition, Citizens

for a Better Environment v. EPA, 649 F.2d 522 (7th Cir. 1981); Illinois

v. Celotex Corp., 516 F. Supp. 716 (C.D. III. 1981); Sierra Club v.

Indiana & Michigan Electric Corp., No. NA 81-8-C (S.D. Ind. June 5,

1981); Sierra Club, v. Indiana Kentucky Electric Corp., No. NA 81-7-C

(S.D. Ind. May 11, 1981), were inapposite because they simply held that

EPA cannot approve state regulations which were improperly promul-

gated by the state and therefore invalid when submitted to the agency.

In addition, the court of appeals rejected petitioner's reliance upon

District of Columbia v. Train, 521 F. 2d 971 (D.C. Cir. 1975), vacated,

431 U.S. 99(1977). The court found that the holding in that case that the

EPA is not authorized to require the states to submit an adequate SIP

or additional provisions thereto was not relevant to this case (Pet. App.

A16-A18).

Union Electric Co. v. EPA, 427 U.S. 246 (1976). Petitioner

correctly notes that the Court found in those cases that

Congress intended, in adopting the Clean Air Act, to grant

ine states primary authority to choose their own “mix of

limitations” subject to the condition that the mix would be

sufficient to achieve minimum national air quality stand-

ards.'' However, contrary to petitioner's assertion (Pet. 7,

12), that principle was not violated here. The court of

appeals decided only that the Administrator's authority to

act upon SIP revisions under Section 110(a)(3) is co-

extensive with his authority to act upon initial SIPs under

Section 110(a)(2). In so deciding, the court below gave

appropriate deference to the Administrator's interpretation

of the statute as permitting him to “approve or disapprove”

each revision or “each portion thereof” as required by

Train, supra, 421 U.S. at 87. Indeed, it would be difficutt to

endorse the anomalous interpretation of the Act urged by

petitioner, which would permit the Administrator to

approve or disapprove “each portion” of the initial SIP

under Section 110(a)(2), but deny the Administrator this

same power in the case of SIP revisions submitted under

Section 110(a)(3).

The record shows that in 1974 Indiana exercised its pri-

mary responsibility under the Act by adopting a revision to

Rule APC-3 of its initial SIP provision in 1974 (Pet. App.

A7, A94-A95). That revision was submitted to EPA for

review to determine its consistency with the requirements of

Section llo(a) for the timely attainment and maintenance of

the NAAQS. The Administrator approved the 1974 APC-3

with the exception of the 15-minute exemption provision

because he found that the exemption could interfere with

the attainment and maintenance of air quality standards

Train, supra, 421 U.S. at 79, 86-87; Union Electric Co. v. EPA,

supra, 427 U.S. at 267, 269.

9

and that Indiana had not demonstrated the contrary as

required by EPA regulations (id. at Al9-A22, Al59-A165). !2

As the court of appeals held, that action is consistent with

the Administrator's authority under the Act and does not

conflict with Trains allocation of roles between the states

and EPA."

The court of appeals also was correct in rejecting peti-

tioner’s contention that the Administrator's disapproval of

the 15-minute exemption in the 1974 APC-3 required EPA

to reject the 1974 APC-3 in its entirety and instead promul-

gate a federal regulation under Section | 10(c)(1) of the Act

affirmatively adopting the acceptable portions of the 1974

APC-3. The court of appeals found that this procedure

would serve no purpose here, where the partially approved

revision was completely satisfactory and a substitute federal

regulation thus would be superfluous (Pet. App. Al7). As

'2Petitioner erroneously contends that no public hearings were held

on “EPA's resulting more stringent regulation, restricting all emissions

in excess of 40% opacity” (Pet. 5). The record indicates otherwise.

Public hearings were held for both the original 1972 APC-3 (Pet. App.

A93) and for the 1974 APC-3 (id. at A153), both of which contained this

standard.

As a factual matter, petitioner is mistaken in its assertion that the

Administrator's disapproval of 1974 APC-3’s 15-minute exemption &&

altered Indiana's choice of its “mix” of emission limitations (Pet. 8-11).

In substance, the 1974 APC-3 strengthened the 1972 APC-3 by expand-

ing its coverage to all “visible emissions” instead of “smoke” alone, and

by extending the 1972 APC-3 to “any equipment” rather than simply

“any combustion installation” (Pet. App. A94, A-95). At the same time,

the 1974 APC-3 weakened the 1972 APC-3 by creating the 15-minute

exemption for emissions (id. at A95). The 15-minute exemption was

defended as necessary to permit power companies to start fires and

clean units (id. at A161). As the Administrator found, however, other

provisions of the 1974 APC-3 already addressed these concerns (ibid.).

Consequently, the Administrator's disapproval of the 15-minute

exemption did not alter Indiana's articulated “mix” of emissions limita-

tions in any relevant way.

10

the court found, the approach followed here was no differ-

ent from the Administrator's unquestioned power to par-

tially approve initial SIPs (id. at A!8 & n. I).“

2. The court of appeals also held that judicial review of

the merits of the Administrator's disapproval of the 15-

minute exemption was time-barred in 1975 by the then-

applicable 30-day deadline of Section 307(b) of the Act (42

U.S.C. 1857h-5(b)'s However, the court concluded that it

possessed sufficient jurisdiction to determine the threshold

issue whether EPA could partially approve a SIP revision, a

question it resolved in EPA's favor (Pet. App. A13-A19).

Petitioner contends (Pet. 20-22) that the court erred in

applying the Section 307(b) 30-day deadline to bar further

review because partial approval is not final agency action.

The same claim was raised below and rejected in a factual

finding (Pet. App. A19-A22, A46) that EPA clearly identi-

fied its partial approval as final action subject to Section

307(b)’s jurisdictional time bar.“ Further review of this

Moreover, as petitioner concedes elsewhere (Pet. 17 n.15, 18), it is

clear that Section och) does not apply to SIP revisions such as the

1974 APC-3 that a state submits voluntarily. Section | 10(c)(1) applies

only (a) when a state does not submit an initial SIP at all, (b) where the

initial SIP does not meet the Act's requirements, and (c) where the

Administrator notifies the state that its SIP is substantially inadequate

and the state fails to file a revised SIP. 42 U.S.C. 7410(c)( 1M A)-(C).

This deadline was extended by Congress to 60 days in 1977. How-

ever, petitioner is time-barred under the extended deadline as well.

Compare 42 U.S.C. (1976 ed.) 1857h-5(b) and 42 U.S.C. (Supp. 1)

7607(b).

The court distinguished (Pet. App. A23-A26) Utah International,

Inc. v. EPA, 478 F.2d 126 (10th Cir. 1973), upon which petitioner

continues to rely, as a case in which petitioners sought review of an EPA

order proposing new regulations to replace disapproved portions of a

state SIP. The Tenth Circuit dismissed the petition because it did not

challenge a final agency action. The Seventh Circuit found that, unlike

the proposed order in that case, the action here was plainly a fina! order

of the agency (Pet. App. A24). That decision is correct, and petitioner

has stated that it is not challenging the factual decision that the order

was final (id. at 5 n.3).

fact-bound jurisdictional determination is thus un-

warranted. Nevertheless, EPA adheres to its previous posi-

tion (see note 9, supra) that the time bar of Section 307(b)

totally deprived the courts below of subject matter jurisdic-

tion in every respect. See Mansfield, Coldwater & Lake

Michigan Ry. v. Swan, III U.S. 379, 382 (1884), quoted in

Insurance Corp. of Ireland v. Compagnie des Bauxites de

Guinee, No. 81-440 (June I. 1982), slip op. 8.

3. Finally, the petition raises rio issue of national impor-

tance justifying a grant of certiorari. Petitioner describes

the decision below as permitting EPA to utilize a “blue-

pencil” approach to the approval of SIP revisions adopting

any bits and pieces of revisions which it likes and dropping

those which it does not like (Pet. 13-14). This is a gross

mischaracterization. The decision merely holds that the

Administrator’s authority to approve revised SIPs coin-

cides with his authority to approve initial SIPs. The Admin-

istrator must approve both if they meet the attainment

and maintenance requirements of Section 110. Sections

110(a)(2)-(3), 42 U.S.C. 7410(a)(2)-(3). The decision below

does not alter this objective test.

Petitioner insists (Pet. 11-12) nonetheless that this test is

insufficient to protect the rights of the State of Indiana

because it permits EPA, rather than Indiana, to choose “the

proper mix of emissions limitations.” Leaving to one side

the validity of this argument as a factual matter, see note 13,

supra, we stress that the State of Indiana did not object in

1975 to tie Administrator’s partial approval of the 1974

APC-3, nor did it seek judicial review of the action. Only in

this Court has Indiana's Air Pollution Control Board indi-

cated a desire to participate, and even then only in the

limited capacity of amicus curiae, not as an intervenor

12

testing a claimed right.'’ Petitioner, which is not authorized

by Indiana’s governor or its attorney general to speak on

behalf of the State, has been and remains the sole challenger

of the Administrator's partial approval of the 1974 APC-3.

Under these circumstances, petitioner does not have stand-

ing to argue that the rights of the State of Indiana have been

violated. Mountain States Legal Foundation v. Costle, 630

F.2d 754, 771 (10th Cir. 1980); Pacific Legal Foundation v.

Gorsuch, Nos. 81-4442 and 81-7060 (9th Cir. Oct. 20, 1982).

Aside from these problems, the facts petitioner relies upon

simply show that Indiana is in the process of revising APC-3

again (Pet. 5 & n.4; Pet. App. A98, A178, A195-200, A112,

A244, A251-252). This ongoing revision is expressly pro-

vided for by the statute. Section 110(a)(3), 42 U.S.C.

7410(a)(3).

The Indiana Air Pollution Control Board has moved pursuant to

Rule 36.4 of this Court for leave to file an amicus curiae brief in support

of the petition. Respondent does not object to the filing of this brief. It

bears emphasis, however, that this marks the first time that the Board

has seen fit to announce to any court its objections to the legality of

EPA's partial disapproval of the 1974 APC-3 seven years ago. And, as

the Board admits (Amicus Br. 4-5), it has since submitted two revisions

of APC-3 for EPA's approval.

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

Caro E. DINKINS

Assistant Attorney General

Dirk SNEL

Nancy S. BRYSON

Attorneys

ROBERT M. Perry

Associate Administrator and

General Counsel

CHRISTOPHER HERMAN

Attorney

Environmental Protection Agency

NOVEMBER 1982

DOJ-1982-11