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

[O° rane toa a

| FILED

| OST ag 1982

No. 82-512

“\..mXANDER L. STEVAS.

In the . -

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and ANNE M. GORSUCH,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE AN AMICUS

CURIAE BRIEF OF THE INDIANA AIR

POLLUTION CONTROL BOARD

LINLEY E. PEARSON

Attorney General

Counsel for Record for

Amicus Curiae

BRENDA FRANKLIN RODEHEFFER

Deputy Attorney General

The State of Indiana

219 State House

Indianapolis, Indiana 46204

(317) 232-6201

No. 82-512

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and ANNE M. GORSUCH,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE AN AMICUS

CURIAE BRIEF OF THE INDIANA AIR

POLLUTION CONTROL BOARD

LINLEY E. PEARSON

Attorney General

Counsel for Record for

Amicus Curiae

BRENDA FRANKLIN RODEHEFFER

Deputy Attorney General

The State of Indiana

219 State House

Indianapolis, Indiana 46204

(317) 232-6201

TABLE OF CONTENTS

TABLE OF AUTHORITIES .

INTRODUCTION .

INTEREST OF INDIANA AIR

POLLUTION CONTROL BOARD .

GROUNDS FOR LEAVE TO FILE

Page

TABLE OF AUTHORITIES

I. Statutory and Other Authority

Page

Indiana Code §13-l-l-l et seq.

—.....——_. 3

Indiana Code §13-1-1-3 (1982) 2

Indiana Code §13-1-1-4(3)

i.» »-6¢ « 6.* ¢.2 3

Indiana Code §13-7-2-10(c)

Dt a) «sis - 6 « # ¢ 6 » 3,5

Indiana Code outidiues

(1982) . 3

Indiana Code $13-7- 5- Le)

(1982) .. ; 3

Indiana Code §13-7-7- * et E seq.

(1982) : 3

42 U.S.C. § 7401-7642 (Supp.

Iv 1980)... oo 0 ae

United States Supreme ¢ Court

> * BeAr se 4

ii

1

No. 82-512

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and ANNE M. GORSUCH,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE AN AMICUS

CURIAE BRIEF OF THE INDIANA AIR

POLLUTION CONTROL BOARD

Comes now the Indiana Air

Pollution Control Board, by its

counsel, the Attorney General of

Indiana, and files this Motion

for Leave to file an Amicus Curiae

Brief.

INTEREST OF INDIANA AIR

POLLUTION CONTROL BOARD

The Indiana Air Pollution Control Board

(APCB) is an agency of the State of Indiana

created by statute, Indiana Code 13-1-1-3

(1982). APCB has the duty and power,

pursuant to Indiana Code 13-1-1-4(3) (1982),

to adopt and promulgate reasonable rules and

regulations consistent with the general

intent and purpose of the Air Pollution

Control Board Act. Indiana Code 13-1-1-1

et seq. (1982). Indiana Code 13-7-5-1({c)

(1982) and Indiana Code 13-7-7-1 et seq.

{ 1982) also provide APCB with the authority

to adopt rules and regulations relating to

air quality in the State of Indiana.

Further, Indiana Code 13-7-5-l(e) provides

APCB may act for the State in the adoption

of standards pursuant to any federal law

regarding environmental protection of air.

Indiana Code 13-7-2-10(c) (1982) designates

APCB as the air pollution agency for the

State for all purposes of the Federal Clean

Air Act, 42 U.S.C. §§ 7401-7642 (Supp. IV

1980).

Thus, in a cause wherein the rules

of the State relating to air pollution

control are at issue, APCB is uniquely

qualified and authorized to support its

rules.

GROUNDS FOR LEAVE TO FILE

The interest of the State of Indiana

is represented in this brief by APCB. The

State may file an Amicus Curiae Brief without

consent of the parties. United States

Supreme Court Rule 36.4. APCB's Amicus

Curiae Brief could have been written then

with a different caption and the Amicus

Curia Brief would have been accepted

automatically. Because of the last-minute

“mandate"' of APCB to the Attorney General

to file an Amicus Curiae Brief herein,

without time for input from the Governor,

it was determined that the Amicus Curiae

Brief should be brought in the name of

APCB. Yet, APCB only is authorized by

the Indiana Code to act for the State

of Indiana herein, Indiana Code 13-7-2-10(c)

(1982), and should be allowed to intervene

as the State.

APCB was informed of the issue herein

after the Petitioner's Petition for Writ

of Certiorari had already been filed.

APCB may or may not still be able to obtain

the consent of the parties. APCB filed

its Brief in the reasonable belief that

it could do so as the State without

consent of the parties.

The issue left in the Petition for

Writ of Certiorari is whether Environmental

Protection Agency may partially adopt,

rather than adopt in whole or reject,

a State's revision to ics State Implementa-

tion Plan (SIP) under the Clean Air Act,

42 U.S.C. §§ 7401-7642 (Supp. IV 1980).

Since it is Indiana's SIP at issue and the

rule which APCB promulgated, both of which

are APCB's responsibility, APCB has a

real interest herein. The outcome of

this cause must directly affect APCB and

the State's entire air pollution control

program. APCB's opinion and interpreta-

tion of the law is highly relevant and

should be considered,

WHEREFORE, APCB prays that the

United States Supreme Court grant its

Motion for Leave to File an Amicus

Curiae Brief.

Respectfully submitted,

Attorney/General For

the Stage of Indiana

Couns#l1 of Record for

Petitioner

| Office - Supreme Court U.S.

FILED

OCT 23 1982

ALEXANDER L. STEVAS,

CLERK

No. 82-512

In the

Supreme Court of the United States

OCTOBER TERM, 1982

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and ANNE M. GORSUCH,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN SUPPORT OF PETITION FOR

CERTIORARI OF THE INDIANA AIR

POLLUTION CONTROL BOARD

AS AMICUS CURIAE

LINLEY E. PEARSON,

Attorney General

Counsel of Record for Amicus Curiae

BRENDA FRANKLIN RODEHEFFER,

Deputy Attorney General

The State of Indiana

219 State House

Indianapolis, Indiana 46204

(317) 232-6201

Central Publishing Company. Inc.. Indianapolis. IN 46206

QUESTION PRESENTED FOR REVIEW

When the United States Environmental Protection

Agency disapproves an integral portion of a regulation

submitted by the State as a revision to its State

Implementation Plan under the Clean Air Act, is the

remaining portion of the regulation enforceable by the

Agency if it is neither:

(1) Adopted by the State as a state regulation; nor

(2) Promulgated as a federal regulation pursuant tothe

provisions of the Act?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW........ i

TABLE OF AUTHORITIES...................... iii

INTEREST OF THE STATE..................... 1

SUMMARY OF THE STATE’S ARGUMENT..... 2

AEE De SL eee ie ee 3

I. The APCB Has Never Agreed With EPA’s

Claimed Authority To Revise And Has

Consistently And Unsuccessfully Sought

EPA Approval Of The Disputed Regulations

As Well As Subsequent Revisions Thereto.. 3

II. The EPA Does Not Have The Authority To

Approve Portions And Disapprove Portions

Of Revisions To State Implementation Plans 5

Ill. The Statute Provides EPA With The

Exclusive Avenue To Substitute Its

Judgment For That Of The State .......... 7

UPEGT oc ce rnccuressetccccscereveccoccecss 10

TABLE OF AUTHORITIES

I. Table of Cases

Page

Donner Hanna Coke Corp. v. Costle, 464 F. Supp. 1295

GP + CUED ccs cencectevasddscssuccssanenen 9

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

GED nencccvccsncnceneoucestebeceéesunaneeen 2.6

Union Electric Co. v. EPA, 427 U.S. 246 (1976)..... 2.6

II. Other Authority

Ind. Code §13-7-7-2 (1976, Cum. Supp. 1981) ....... 4

42 U.S.C. §§7401-7626 (Supp. IV 1980)............. 2

42 U.S.C. §7401(aX3) (Supp. IV 1980) .............. 2

42 U.S.C. §7410(aX2) (Supp. IV 1980) .............. 5,9

42 U.S.C. §7410(aX2\H) (Supp. IV 1980)........... 3,8

42 U.S.C. §7410(aX3) (Supp. IV 1980) .............. 5.9

42 U.S.C. §7410(c\1) (Supp. IV 1980) .......... 2.6.7,8,9

42 U.S.C. §7410(c1)(A) (Supp. IV 1980) ........... 7

42 U.S.C. §7410(c1)(B) (Supp. IV 1980) ........... 6.7

42 U.S.C. §7410(cX1(C) (Supp. IV 1980) ........... 7

42 U.S.C. §7410(d) (Supp. IV 1980) ................ 3.7

42 U.S.C. §7413 (Supp. IV 1980) ................... 3

42 U.S.C. §7607(d) (Supp. IV 1980) ................ 2.7

42 U.S.C. §7607(d\2) (Supp. IV 1980).............. 8

42 U.S.C. §7607(d\X3) (Supp. IV 1980).............. 8

42 U.S.C. §7607(d 4) A) (Supp. IV 1980)........... 8

42 U.S.C. §7607(d 4 BXi) (Supp. IV 1980) ......... 8

42 U.S.C. §7607(d 6B) (Supp. IV 1980) ........... re)

1969 Additions and Revisions to Rules and

EET a

325 Ind. Admin. Code 1-3 (1979) ................45-

325 Ind. Admin. Code 1-3.1 (1980 Supp.) ...........

325 Ind. Admin. Code 5 (1982 Cum. Supp.).........

37 Fed. Reg. 10,863-65 (1972)..........600.-eeceeee

45 Fed. Reg. 20,432, 36-38 (1980) ..............006-

47 Fed. Reg. 9,020-21 (1982) ............0.ceeeeeeee

iv

No. 82-512

In the

Supreme Court of the United States

OCTOBER TERM, 1982

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and ANNE M. GORSUCH,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCU!T

BRIEF IN SUPPORT OF PETITION FOR

CERTIORARI OF THE INDIANA AIR

POLLUTION CONTROL BOARD

AS AMICUS CURIAE

THE INTEREST OF THE STATE OF INDIANA

The State, due to industries under the jurisdiction of the

Indiana Air Pollution Control Board (“APCB”), are

adversely affected by the decision of the Court of Appeals.

The holding of this decisieu seriously undermines APCB’s

reponsibility and authority to revise its State

Implementation Plan (“SIP”) under the Clean Air Act, 42

U.S.C. §§7401-7626 (Supp. IV 1980) (the “Act”). The

decision allows the United States Environmental

Protection Agency (“EPA”), without any notice,

opportunity for comment, or public hearing, to delete

integral portions of revisions to Indiana’s SIP and

immediately to enforce those revisions as amended by EPA,

without giving APCB its opportunity to submit another

regulation to EPA for review as required by Section

110(c\1) of the Act. 42 U.S.C. §7410(c1) (Supp. IV 1980).

The judicial affirmation of this far-reaching EPA

authority to substitute its judgment for that of APCB

impairs Indiana’s statutorily-guaranteed freedom and

responsibility to revise its SIP and to determine the

appropriate mix of emission limitations applicable to

critical Indiana industries. The APCB has a clear interest

in seeking reversal of the Court of Appeal’s decision.

SUMMARY OF THE STATE’S ARGUMENT

The decision below fundamenta!ly alters the balance of

powers between state and federal authority created by the

Act. This Court has twice determined that the States, not

EPA, have the primary authority under the Act to

determine the appropriate “mix of emission limitations

[they] deem | best suited to [their] particular situations.”

Train v. Natural Resources Defense Council, 421 U.S.60,79

(1975); see also Union Electric Co. v. EPA, 427 U.S. 246, 250

(1976); 42 U.S.C. §7401(aX3) (Supp. IV 1980). EPA may

override the State’s choices only in narrowly defined

circumstances, and only by following mandatory

procedures prescribed in the Act. 42 U.S.C. §§7410(c)(1),

7607(d) (Supp. IV 1980).

Nevertheless, the Court of Appeals’ decision allows EPA

to substitute its judgment for that of the State by simply

drawing a line through an integral portion of the State’s

duly promulgated SIP revision, thereby substantially

3

changing the scope and meaning of that regulation. EPA

may then immediately enforce the balance of the

regulation as amended by EPA, without any notice,

opportunity for comment, or public hearings. However, the

Act does not permit EPA to create its own regulation in

such a fashion. Because the decision below (1) usurps the

States’ primary role under the Act to develop and revise

their SIPs; (2) expands EPA’s authority far beyond that

conferred by Congress; (3) directly affects the ongoing

revisions of over fifty State Implementation Plans; and (4)

effectively eliminates numerous procedural requirements

from the Act, the Petition for Certiorari presents a question

of national significance which should be decided by this

Court.

ARGUMENT

I. The APCB Has Never Agreed With EPA's

Claimed Authority To Revise And Has

Consistently And Unsuccessfully Sought EPA

Approval Of The Disputed Regulation As Well As

Subsequent Revisions Thereto.

In 1968, the APCB promulgated a regulation called

APC-3, which limited the “smoke” emitted from any

“combustion installation” to 40% opacity. 1969 Editions

and Revisions to Rules and Regulations (Indiana) 11. APC-

3 became a federally enforceable part of Indiana’s

“applicable implementation plan” when it was approved by

EPA on May 31, 1972. 42 U.S.C. §§7410(d), 7413 (Supp. IV

1980); 37 Fed. Reg. 10,863-65 (1972). (This version of APC-3

is hereafter called “1972 APC-3”).

In 1974, APCB amended APC-3 and submitted this SIP

revision to EPA for approval or disapproval on November

8, 1974. (“1974 APC-3”). This revision was not prompted by

an EPA finding under 42 U.S.C. §7410(aX2\ H) (Supp. IV

1980), that 1972 APC-3 was inadequate, but was born out of

APCB’s desire to improve its air pollution control

regulations. 1974 APC-3 was a complete revision of 1972

4

APC-3. On the one hand, coverage was expanded from

“combustion installations” to “any equipment.” On the

other hand, the Board restricted the coverage of 1972 APC-

3 by providing a 15-minute per day exemption from its 40%

opacity restrictions. 325 IND. ADMIN. Cope 1-3(1979). Thus,

although the class of sources subject to APC-3 was

enlarged, those sources would not violate the new

regulation unless emissions occurred “for more than a

cumulative wtal of 15 minutes in a 24-hour period.” Jd.

APCB considered the 15-minute exemption a critical and

necessary part of its revised regulation. Many sources

brought within the coverage of 1974 APC-3 could not, for

economic and technological reasons, comply with the 40%

opacity limit unless some exemption was provided.

Consequently, 1974 APC-3 without the exemption would be

invalid under Indiana law. IND. Cope §13-7-7-2(1976, Cum.

Supp. 1981). Not only was the exemption essential to 1974

APC-3’s validity, but APCB reasoned that the additional

adverse air quality impacts arising from the exemption

would be de minimus and more than offset by the expansion

of coverage to other sources.

As interpreted below, EPA’s October 21, 1975 decision

regarding 1974 APC-3 had the effect of approving 1974

APC-3’s expansion of coverage while at the same time

disapproving the exemption, and rendered the modified

regulation, which was much more stringent than any

opacity regulation ever promulgated by the State,

immediately enforceable by EPA, and only by EPA. EPA

never published any notice of intent to disapprove any

portion of 1974 APC-3; the public, including APCB, was

never given an opportunity to comment upon this amended

regulation; and EPA’s version of APC-3 (“EPA APC-3”)

was never subject to a public hearing, all in violation of the

Act.

APCB has never accepted that EPA’s October 21, 1975

action, standing alone, was sufficient to change a duly

5

promulgated State regulation or to create a federally

enforceable regulation. The State has tried to eliminate

this problem by twice seeking EPA’s approval of new

revisions of APC-3. On June 26, 1979, Indiana submitted a

revised version of APC-3 to EPA for approval as a SIP

revision. 325 Inp. ApmIN. Cope 1-3.1 (1980 Supp.). On

March 27, 1980, EPA published notice of its intent to

disapprove that revision. 45 Fed. Reg. 20,432, 36-38 (1980).

On October 6, 1980, Indiana submitted another revision to

APC-3. 325 Inp. Apmin. Cope 5 (1982 Cum. Supp.).

Although EPA has not taken final action on that

submission, it published notice of its intent to disapprove on

March 3, 1982. 47 Fed. Reg. 9020-21 (1982). As a result,

EPA's version of APC-3, not APCB’s version, has been

enforced against Indiana sources of air emissions for nearly

seven years in violation of the fundamental tenet of the

Clean Air Act that the states are to develop the appropriate

mix of emission limitations.

Il. EPA Does Net Have The Authority To Approve

Portions And Disapprove Portions Of Revisions

To State Implementation Plans.

Although the Act grants EPA authority to make partial

approvals of a state’s original SIP, it does not permit

EPA to make partial approvals of a state’s revision to

its original SIP. Compare 42 U.S.C. §7410(a(2) (Supp. IV

1980) (“the Administrator shall... approve or disapprove

such plan, or each portion thereof”) with 42 U.S.C,

§7410(aX3) (Supp. 1V 1980) (“the Administrator shall

approve any revision of an implementation plan. ...”). The

rationale for this different language is simple. Once the

original plan is in place and is not found to be inadequate by

EPA, disapproval of an entire SIP revision leaves the

existing adequate SIP in force. This is not the case with the

original plan. Rather than require wholesale rejection of

the original plan thereby leaving nothing in effect, EPA

was allowed to disapprove portions and to fill the gaps

created by this selective disapproval with a federal

“é

6

regulation if — and only if — the state thereafter failed to

fill the gaps itself. 42 U.S.C. §7410(¢ 1) B)(Supp. IV 1980).

The provisions of Section 110(¢c\(1), 42 U.S.C. §7410(c\(1)

(Supp. IV 1980), complement this statutory scheme.

Section 110(c) authovizes and requires EPA to promulgate

a federal SIP regulation in lieu of a state regulation in

certain narrowly defined circumstances. Section

110(c(1XB) requires EPA to promulgate a federal

replacement regulation if: (1) it disapproves the original

SIP or any portion thereof; and (2) the state fails to submit

an acceptable alternative. If a portion of the original SIP is

disapproved, there is no existing SIP to fall back on, and

EPA must promulgate a replacement regulation to fill that

gap. There is no comparable provision permitting EPA to

promulgate a federal regulation when it disapproves a

portion of a voluntarily submitted SIP revision. This is

because when EPA disappi oves aSIP revision in full, there

is an existing approved SIP to fall back on. No federal

regulation is required because there is no gap to fill.

When EPA acted on 1974 APC-3, 1972 APC-3 was stilla

valid part of Indiana’s applicable implementation plan. As

stated by Petitioner at page 12 of its Petition, denying EPA

its claimed authority to approve portions of a SIP revision

not only is consistent with the statutory language, but also

leaves the State with the primary authority to choose the

appropriate mix of emission limitations. See Train, 421

U.S. at 79, 86-87; Union Electric, 427 U.S. at 269. APCB’s

options were to continue with 1972 APC-3, to adopt and

submit EPA’s version of 1974 APC-3, or to develop and

submit an entirely new alternative. The decision below

does not leave the primary responsibility for revising the

appropriate mix of limitations with the State, but rather

allows EPA to substitute its judgment for that of the State

by simply drawing a line through portions ot a State SIP

revision it does not like, thereby substantially changing the

meaning and scope of the State’s regulation. And, as shown

in section III below, that decision allows EPA to

7

accomplish this result in complete disregard for the

procedures written into the Act by Congress.

III. The Statute Provides EPA With The Exclusive

Avenue To Substitute Its Judgment For That Of

The State.

There are only two ways a regulation becomes part of a

state’s “applicable implementation plan.” The regulation

may either be a state regulation approved by EPA under

Section 110(a)2), or a federal regulation promulgated by

EPA under Section 110(c). 42 U.S.C. §7410(d) (Supp. IV

1980}. Since it is clear that EPA APC-3 is not a State

regulation, the only way it may be an enforceable part of

Indiana's SIP is if it is a federal regulation.

Section 110(c\(1) provides the only mechanism Congress

prescribed for EPA to develop and enforce federal

regulations. There are only three circumstances in which

EPA may promulgate a federal SIP regulation: first, if the

state fails to submit an original SIP meeting the

requirements of the Act, 42 U.S.C. §7410(c 1) A) (Supp. IV

1980); second, if EPA disapproves a state’s original plan or

any portion thereof, 42 U.S.C. §7410(c(1)(B) (Supp. IV

1980); or third, if the state fails to revise its SIP after being

notified by EPA that the state plan is inadequate. 42 U.S.C.

§7410(c1C) (Supp. [V 1980).' The decision below allows a

fourth, non-statutory circumstance in which EPA can

delete portions of a voluntary state SIP revision and to

create a federal replacement regulation without following

the mandatory procedural requirements of the Act. Sve 42

U.S.C. §§7410(c 1), 7607(d) (Supp. 1V 1980).

If EPA felt that both 1972 APC-3 and 1974 APC-3 were

inadequate, and that some other regulation was needed, it

'It is clear that Section 110(c)(1) does not authorize or require EPA to

develop a federal regulation when it disapproves a portion of state's SIP

revision because the statute does not permit a partial disapproval of SIP

revisions.

8

was required to disapprove 1974 APC-3 in its entirety and

to notify Indiana that 1972 APC-3 was not sufficient to meet

ambient air standards. 42 U.S.C. §7410(a)(2)H) (Supp. IV

1980). If Indiana failed to promulgate a satisfactory

replacement within 60 days of this notice, or such longer

period as EPA might allow, EPA had a mandatory duty to

promptly publish a proposed federal replacement

regulation. If the State did not submit a satisfactory

substitute within six months of the date established in the

notice for Indiana to submit its new regulation, then, and

only then, was EPA authorized to substitute its judgment

for the State with its own regulation. The decision below

rewrites this section of the Act by granting EPA another,

non-statutory procedure for substituting its judgment for

the State.

The decision also effectively eviscerates numerous

statutory procedures enacted as part of the 1977

amendments to the Act which must be followed by EPA in

developing a federal regulation when such a regulation is

permitted. To develop such a regulation, EPA must:

(1) Establish a rulemaking docket available to the

public in Washington, D.C. and in the appropriate

regional EPA offices, 42 U.S.C. §7607(d)(2),

(dX4)A) (Supp. IV 1980);

(2) Promptly publish notice of proposed rulemaking in

the Federal Register, 42 U.S.C. §7410(c\1),

7607(d\3) (Supp. IV 1980);

(3) Establish a period for receiving public commenis on

the proposed regulation, 42 U.S.C. §7607(d\(3)

(Supp. IV 1980);

(4) Hold a public hearing in the affected State on EPA’s

proposed regulation, 42 U.S.C. §7410(c\1) (Supp.

IV 1980);

(5) File ail comments and the transcript of any public

hearings in the docket, 42 U.S.C. §7607‘d\4)BXi)

(Supp. IV 1980);

9

(6) Respond to all comments received, 42 U.S.C.

§7607(d6)B) (Supp. IV 1980); and finally

(7) Promulgate, and justify through reasoned

decisionmaking, a final rule for the State.

The decision below allows EPA to ignore all these

requirements.? The court reasoned that Section 110(c)

rulemaking would be “unnecessarily duplicitous.” Courts

and agencies do not have the authority to ignore the express

procedures required by Congress. Moreover, the

“significance of rulemaking cannot be underemphasized.

It gives parties affected by a decision an opportunity to

participate in the decision-making process and forces EPA

to articulate the bases for its decisions.” Donner Hanna

Coke Corp. v. Costle, 464 F. Supp. 1295, 1305 (W.D.N.Y.

1979). Unless the court of appeals decision is reversed by

this Court, rather than follow the congressionally imposed

rulemaking requirements, EPA may fundamentally

change a State’s regulation by simply drawing a line

through a portion of that regulation thereby substituting

its judgment for that of the State: oust the State of its

primary role under the Act; eliminate the State’s second

chance to devise a regulation of its own choosing: and

immediately enforce EPA’s regulation without any due

process whatsoever. Such a result was clearly not

contemplated by Congress, and cannot be justified in light

of the Act’s requirements.

“Only after following these mandatory procedures, may EPA substitute

its judgment for the state. As pointed out at pages 18-19 of the Petition,

Congress recognized that holding a public hearing in the affected state

and considering, analyzing, and responding to public comments from

the state, affected industries, and the general public, might result in

changes to EPA's proposed regulation. These requirements are also

consistent with a general theme of the Act, that no State Implementation

Plan regulation, be it state or federal, can become an enforceable part of

a SIP unless subjected to public notice, comment, and public hearings.

42 U.S.C. §§7410(a)(2), 7410(aK3), 74100eK 1) (Supp. TV 1980).

10

CONCLUSION

The Air Pollution Control Board of the State of Indiana,

appearing by its Attorney General as amicus curiae,

respectfully tenders this Brief in Support of Public Service

Company of Indiana, Inc.’s Petition For Writ of Certiorari

filed September 23, 1982. The State supports the positions

presented by Petitioner, and urges this Court (1) to grant

certiorari to review the decision of the United States Court

of Appeals for the Seventh Circuit herein, and(2) to reverse

the Appellate Court’s decision for the reasons set forth

above.

Dated: October 22, 1982.

Respectfully submitted,

LINLEY E. PEARSON,

Attorney General For the State of Indiana

Counsel of Record for Petitioner