Petitioners Reply Brief — Chevron USA Inc. v. Natural Resources Defense Council, Inc.

[ Office Supreme Court, U.S

FILED

Nos. 82-1005, 82-1247 and 821591 FER 5 agg

DER L. STEVAS

IN THE CLERK

Supreme Court of the cs

OCTOBER TERM, 1983

CHEVRON U.S.A. INC.,

Petitioner,

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

AMERICAN IRON AND STEEL INSTITUTE, et al.,

. Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY,

m Petitioner,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents,

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF OF PETITIONERS

AMERICAN IRON AND STEEL INSTITUTE, et al.,

AMERICAN PETROLEUM INSTITUTE, et al.,

CHEMICAL MANUFACTURERS ASSOCIATION,

GENERAL MOTORS CORPORATION, and

RUBBER MANUFACTURERS ASSOCIATION

{Counsel listed on inside cover]

February 22, 1984

WILSON + Ere Printing Co., Inc, - 769-0006 . WasniNaToN, D.C, 20001

Rospert A, EMMETT

(Attorney of Record)

DAVID FERBER

Reep SMITH SHAW & McCLAY

1150 Connecticut Ave., N.W.

Suite 900

Washington, D.C, 20086

(202) 457-6144

BLair S. MCMILLIN

REED SMITH SHAW & McCCLAY

747 Union Trust Building

Pittsburgh, PA 15219

(412) 288-8228

Attorneys for Petitioners

American Iron and

Steel Institute, et al.

STARK RITCHIE

Davip T. DEAL

AMERICAN PETROLEUM

INSTITUTE

1220 L St., N.W.

Suite 900

Washington, D.C, 20005

Attorneys for the American

Petroleum Institute, et al.

THEODORE L. GARRETT

PATRICIA A. BARALD

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C, 20044

Attorneys for the Chemical

Manufacturers Association

Louis E. Tost

WILLIAM L, PATBERG

FULLER & HENRY

800 Madison Ave.

Toledo, Ohio 48608

Attorneys for General Motors

Corporation

CHARLEs F. Lettrow

CLEARY, GOTTLIEB, STEEN

& HAMILTON

1752 N St., N.W.

Washington, D.C. 20086

Attorney for the Rubber

Manufacturers Association

Of Counsel:

BARTON C, GREEN

General Counsel and Secretary

American Iron and Steel

Institute

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............0:0:csessssssesveseoesseees ii

I, NEITHER THE LANGUAGE NOR THE LEG-

ISLATIVE HISTORY OF THE CLEAN AIR

ACT PRECLUDES EPA FROM ADOPTING A

PLANTWIDE “SOURCE” DEFINITION .......... 4

A. The Section 111(a) (3) Definition of “Sta-

tionary Source” Does Not Apply to Part D of

ENN, I i a scubianpeevanabonees 4

B. Even if It Did Apply to Part D, the Section

111(a) (8) “Source” Definition Does Not

Preclude EPA from Adopting a Plantwide

Interpretation of that Term for heen

a cearactiinincatcde cnindsdasincaptnaascniapetinabiameenineemanee 7

C, The Plantwide Definition of “Source” Is Not

Prohibited by Section 178 ..........ccccccccceccsceeeeeeee 8

D. The Legislative History Does Not Preclude

EPA from Adopting a Plantwide Definition

ge 9

II, EPA’S CONSIDERATION OF THE ISSUES

RAISED BY THE PLANTWIDE “SOURCE”

DEFINITION WAS ADEQUATE ...........ccc000000 11

Ill. THE STATE AMICUS BRIEF PROVIDES NO

BASIS FOR INVALIDATING THE PLANT-

WIDE “SOURCE” DEFINITION ......0. cece 12

SEPPUREEITENEN dresussasincsscietinssninndeprecneecscsipeuanieomennnbataes 14

ii

TABLE OF AUTHORITIES

CASES: Page

Alabama Power Co. v. Costle, 636 F.2d 328 (D.C.

NS OE RT CE 2,8

ASARCO, Inc. v. EPA, 578 F.2d 319 (D.C. Cir.

ESTES TE Ca 8

Atlantic Cleaners & Dyers, Inc. v. United States,

I a seaeeitianainn 5

Bunker Hill Co. v. EPA, 658 F.2d 1280 (9th Cir.

a cnleiienaniueiiuaonemopennsy 10

Nachman Corp. v. Pension Benefit Guaranty Corp.,

| RS Re 5, 6

Train v. Natural Resources Defense Council, 421

ET ST ee 10, 12

Union Electric Co. v. EPA, 427 U.S. 246 (1976)... 10

STATUTES:

Clean Air Act, as amended by 1977 Amendments,

Pub. L. No. 95-95, 91 Stat. 685, 42 U.S.C. §§ 7401

et seq. (Supp. V)

Part A, 42 U.S.C. §§ 7401-7428 ....................... 11

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

IE EE Es 6

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

TCI UEDREE NTIS ots Sc Ae Se OE 6

Section 110(a) (4), 42 U.S.C. § 7410(a) (4).. 6

Section 111, 42 U.S.C. § 74i1 .................... 8, 4, 5, 6, 7

Section 111(a), 42 U.S.C. § 7411 (a) .............. 4, 5,6

Section 111(a) (8), 42 U.S.C. § 7411 (a) (3).. 4,7,8

Section 111(a) (4), 42 U.S.C. § 7411(a) (4).. 6

Section 118, 42 U.S.C. § 74138........................... 10, 11

Part C, 42 U.S.C. §§ 7470-7479A . eae Ss

Section 169(2)(C), 42 U.S.C. § 7479 (2) (C).. 5

Part D, 42 U.S.C. §§ 7501-7508 ........................ passim

Section 171, 42 U.S.C. § 7501 ........................... 5, 6, 10

Section 171(4), 42 U.S.C. § 7501(4)................ 5, 6

Section 178, 42 U.S.C. § 7508 ....00...........:ccc0e 8,9

Section 802, 42 U.S.C. § 7602 .......................... 5, 6, 10

Section 302(j), 42 U.S.C. § 7602(j) ............... 9

iii

TABLE OF AUTHORITIES—Continued

Page

Steel Industry Compliance Extension Act of 1981,

Pub. L. No. 97-23, 95 Stat. 189 (1981), codified

as amendments to Section 113 of the Clean Air

Ss INI, Hl IIIS cidicdsdnrihcccactsscitetciasettncetipinbentecte’ 10

REGULATIONS:

40 C.F.R. § 51.18(j) (1) (i)-(iii) (1981) ......... 8

om )__, aeaen nes 8

LEGISLATIVE MATERIALS:

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. (1977).. 13

S. Rep. No. 666, 97th Cong., 2d Sess. (1982) ............ 10

FEDERAL REGISTER:

46 Fed. Reg. 50766 (October 14, 1981) ................... 11

MISCELLANEOUS:

Rhinelander, The Bubble Policy and the Clean Air

Act, 18 Envtl. L. Rep. 10406 (1988) .................... 2,12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-1005

CHEVRON U.S.A. INC.,

Petitioner,

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

No. 82-1247

AMERICAN IRON AND STEEL INSTITUTE, et al.,

- Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

No. 82-1591

ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY,

. Petitioner,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF OF PETITIONERS

AMERICAN IRON AND STEEL INSTITUTE, et ail.,

AMERICAN PETROLEUM INSTITUTE, et al.,

CHEMICAL MANUFACTURERS ASSOCIATION,

GENERAL MOTORS CORPORATION, and

RUBBER MANUFACTURERS ASSOCIATION

Petitioners, American Iron and Steel Institute, et al.,

American Petroleum Institute, et al., Chemical Manufac-

turers Association, General Motors Corporation and the

Rubber Manufacturers Association, file this brief in reply

to the briefs of respondents Natural Resources Defense

Council, et al., (“NRDC”) and amici curiae United Steel-

workers of America and Commonwealth of Pennsylvania,

et al. Respondents repeatedly attempt to portray the

plantwide “source” definition as a threat to attainment of

national ambient air quality standards (NAAQS) in non-

attainment areas. Such is not the case. In fact, as one

commentator has noted, “[t]he bubble is most needed in

nonattainment areas” in order “to stimulate growth com-

patible with the Clean Air Act.” ?

Before we address respondents’ and amici’s concerns in

detail, several points should be emphasized. First, use of

the plantwide “bubble” by definition means that in no

event can total emissions from a plant increase above de

minimis levels, and in most instances overall emissions

will decrease significantly.2 “De minimis” emissions are

emissions which are so trivial as to make regulation

thereof “pointless expenditures of effort.” Alabama

Power Co. v. Costle, 686 F.2d 328, 360 (D.C. Cir. 1979).

As the court there stated, “The ability . . . to exempt de

minimis situations from a statutory command is not an

ability to depart from the statute, but rather a tool to be

used in implementing the legislative design.” Jd. To the

1 Rhinelander, The Bubble Policy and the Clean Air Act, 18

Envtl. L. Rep. 10406, 10414 (1983) (hereafter cited as Rhinelander)

(emphasis added).

2 See, e.g., Chevron Br. at 17-19. NRDC repeatedly asserts that

existing sources can avoid new source review with “partial” offsets.

NRDC’s own statistics (NRDC Br. at 5 n.18), however, prove that

“partial” offset situations almost never occur. Of the 604 modifica-

tions undertaken between 1976 and 1980 by major stationary sources

located within nonattainment areas, 590 achieved greater-than-even

offsets. That is to say, 97+ % of all major plant modifications dur-

ing that period in fact resulted in emission decreases.

3

extent that NRDC is really attacking EPA’s “de

minimis” emission levels, its challenge is both untimely

and unsupportable.

Second, any state which elects to implement a plant-

wide “source” definition must still demonstrate to the

satisfaction of EPA that its Part D State Implementation

Plan (SIP), including such definition, will be sufficient to

enable the state to make reasonable further progress to-

ward attainment and to achieve attainment as expedi-

tiously as practicable. These requirements apply regard-

less of the “source” definition implemented by the state.

Indeed, as noted by EPA (EPA Br. at 3, 39), eighteen of

the thirty-one states which had adopted the plantwide

“source” definition before it was vacated by the court be-

low successfully demonstrated that the plantwide defini-

tion is consistent with these air quality goals.

Third, new production units or pieces of equipment

added to an existing plant already are subject to exten-

sive state and federal review and technological control.

State operating permits are required in virtually all in-

stances, and many pieces of equipment, particularly larger

units such as boilers, furnaces, ete., also must meet

federal new source performance standards (Section 111,

42 U.S.C. § 7411; see 40 C.F.R. Part 60 (1983)). The

implication that large, heavy emitting units will go un-

reviewed (NRDC Br. at 2) is without basis in fact.* A

state which elects to impose even more stringent tech-

nological controls on new units at existing plants is also

completely free to do so. See, e.g., Comments of Ohio

EPA, J.A. 138.

8 NRDC suggests (NRDC Br. at i, 2) that the plantwide defini-

tion allows the construction of “boilers and blast furnaces” within

existing plants as if to suggest these kinds of major projects are

routinely escaping new source review. To the contrary, projects of

this magnitude involve emissions much higher than the 25 to 100

ton per year significance levels complained of by respondents and,

in most cases, cannot be netted out of the new source review process.

4

I. NEITHER THE LANGUAGE NOR THE LEGISLA-

TIVE HISTORY OF THE CLEAN AIR ACT PRE-

CLUDES EPA FROM ADOPTING A PLANTWIDE

“SOURCE” DEFINITION

NRDC’s arguments against the plantwide “source” def-

inition depart radically from the conclusions of the court

below. The sole basis cited by the court for its decision

was the so-called “bright line” test, which the court held

precluded it from exercising its own judgment in constru-

ing the Act. NRDC’s brief never even mentions this

rationale. Rather, NRDC relies entirely on arguments

that the language and legislative history of the Act pre-

clude use of a plantwide “source” definition—arguments

which the court below explicitly rejected.

NRDC’s statutory language arguments (NRDC Br. at

26-32) can be reduced to two contentions:

1. The Clean Air Act does specify a definition of

“stationary source” applicable to Part D and that

definition can be found in Section 111, 42 U.S.C.

§ 7411 (the provision requiring that technology-

based performance standards be applied to new

sources regardless of location) ; and

2. The four constituent terms (“building, structure,

facility, or installation”) of the Section 111

“source” definition require EPA to impose either

a unit-specific or a “dual” definition of “source.”

Both assertions are incorrect. The Act does not specify a

definition of “source” applicable to Part D. In any event,

the Section 111 “source” definition, even if it were found

to be relevant for purposes of Part D, does not preclude

EPA from adopting, and allowing the states to adopt, a

plantwide “source” definition for nonattainment areas.

A. The Section 111(a)(3) Definition of “Stationary

Source” Does Not Apply to Part D of the Clean

Air Act

Section 111(a), as amended, defines seven terms which

are to be used explicitly “(flor purposes of [that] sec-

5

tion.” As a group, these terms establish the jurisdictional

scope of the Section 111 new source performance standard

program. Two of these terms, “stationary source” and

“new source,” delineate those entities for which EPA may

promulgate standards of performance and to which such

standards may be applied.

Despite the Section 11l(a) language limiting these

definitions to Section 111, NRDC attempts to engraft

them to the rest of the Act, including Part D. NRDC

first argues that there is a “presumption” that “a word

has the same meaning when used throughout a single

statute.” NRDC Br. at 28. Such a presumption, how-

ever, is “not rigid” and “readily yields,” where, as here,

it is clearly rebutted by the explicit language and struc-

ture of the Clean Air Act. Atlantic Cleaners & Dyers,

Inc. v. United States, 286 U.S. 427, 483 (1982).

Definitions applicable to the entire Clean Air Act are

contained in Section 302, 42 U.S.C. § 7602, of that Act.

Definitions applicable only to Part D are set forth in or

incorporated by Section 171, 42 U.S.C. § 7501. Neither

Section 302 nor Section 171 contains a definition of “sta-

tionary source.” In the 1977 Amendments to the Act

establishing Part D, when Congress intended to apply a

Section 111 definition to other parts of the Act, it did so

explicitly. See, e.g., Section 171(4), 42 U.S.C. § 7501

(4), incorporating the Section 111 definition of ‘“modifi-

cation” for purposes of Part D, and Section 169(2) (C),

42 U.S.C. § 7479(2)(C), utilizing the same definition

for purposes of Part C. That the Section 111 definition

of “stationary source” was not similarly incorporated

strongly indicates Congress’s intent not to apply that

definition to Part D.

In Nachman Corp. v. Pension Benefit Guaranty Corp.,

446 U.S. 359 (1980), a case which presented virtually

the identical statutory construction issue raised here by

NRDC, the petitioner argued that the definition of a term

in Title I of the Employee Retirement Income Security

Act should be applied to that term as used in Title IV

of that Act. This Court declined to apply the Title I

definition to Title IV because the applicability of the

Title I definitions was limited, as here, by the introduc-

tory phrase “for purposes of this title.” 446 U.S. at

370. This Court further observed that the limited ap-

plicability of the Title I definition was “reinforced by

the fact that Title I definitions are occasionally expressly

incorporated by reference in Title IV” and that this

“specific incorporation suggests that Title I definitions

do not apply elsewhere in the Act of their own force...”

Id. at 370 n.14,

NRDC also argues that because Sections 110(a) (2) (D)

and (a) (4), 42 U.S.C. §§ 7410(a) (2) (D) and (a) (4),

refer to “locational review” of new sources subject to

Section 111 standards of performance, the Section 111

(a) definition “has applied to new source review in areas

with unhealthy air since 1970.” NRDC Br. at 30. NRDC

misreads these provisions. “Locational review” is simply

a component of the Section 111 review process and must

be undertaken regardless of whether a new source is to

be constructed in an attainment or nonattainment area.®

*NRDC would have this Court ignore the Section 111(a) prefa-

tory language “(f]jor purposes of this section” because it does not

read “for purposes of this section only.” NRDC Br. at 30 n.57.

Such a construction would (a) deprive the Section 111 phrase of its

purpose of delineating the proper scope of the Section 111 defini-

tions, and (b) undercut the effect of similar phrases in the Act.

See, e.g., the general definition provision, Section 302 (‘When used

in this Act—”) and the Part D definition provision, Section 171

(“For the purpose of this part and section 110(a) (2) (1)—”). Use

of the word “only” as suggested by NRDC would hinder Congress's

ability selectively to incorporate Section 111 terms elsewhere in the

Act, e.g., precluding Section 171(4)’s incorporation of the Section

111(a) (4) definition of “modification.”

5 Section 110(a)(2)(D) provides for state “review (prior to

construction or modification) of the location of new sources to which

a standard of performance will apply.” Section 110(a) (4) provides:

7

Thus, contrary to NRDC’s assertions, “locational review”

under Section 111 is not a basis for asserting that the

Section 111 definition of “source” applies to anything

other than Section 111.

B. Even if It Did Apply to Part D, the Section 111(a)(3)

“Source” Definition Does Not Preclude EPA from

Adopting a Plantwide Interpretation of that Term

for Purposes of Part D

Even if the Section 111(a) (3) definition of “source”

did apply for purposes of Part D of the Act, the result

sought by NRDC still would not follow. NRDC focuses

on the four statutory terms used to define “source’—

“building,” “structure,” “facility,” and “installation.”

NRDC Br. at 27-30. As is readily apparent from com-

mon usage of each of these terms, they all can encom-

pass an industrial plant. For example, in common par-

lance a military “installation” includes all of the com-

ponent parts of a naval base, not isolated units. Simi-

larly, Webster’s Dictionary defines a “facility” as “some-

thing (as a hospital) that is built, installed or estab-

lished to serve a particular purpose.” Surely a hospital

includes all of its component parts, including separate

wings, buildings, equipment, ete.°

“The procedure referred to in paragraph (2)(D) for [state]

review, prior to construction or modification, of the location of

new sources shall . . . provide for adequate authority to prevent

the construction or modification of any new source to which a

standard of performance under section 111 will apply at any

location which the State determines will prevent the attainment

or maintenance within any air quality control region (or por-

tion thereof) within such State of a national ambient air qual-

ity primary or secondary standard ...” (emphasis added).

* NRDC also concedes that the terms “facility” and “installation”

can be construed to refer to entire plants without doing violence

to their common sense meaning (NRDC Br. at 29 n.56) but argues

that the terms “building” and “structure” cannot reasonably be

read to refer to anything other than industrial units of produc-

tion or operation. NRDC Br. at 27, 30. This argument is incon-

sistent with NRDC’s position that the “dual” definition is valid

The most critical part of the Section 111(a) (3) defi-

nition, which NRDC ignores, is the conjunction “or.”

While the statutory “source” definition is concededly

broad, Congress prohibited defining a “source” as a com-

bination of other “sources.” Both the Alabama Power'

and ASARCO®* decisions are completely in accord on

this point. Yet this is precisely the result that NRDC

argues is compelled by Section 11l(a)(3)—a “dual”

“source” definition that would define a “source” in

terms of both the overall plant and its component parts.

Congress, by using the conjunction “or,” rather than the

conjunction “and,” made clear that no such result was

intended or authorized.

C. The Plantwide Definition of “Source” Is Not Pro-

hibited by Section 173

NRDC also argues that a plantwide definition of

“source” is prohibited by Section 173 of the Act, 42

U.S.C. § 7508, since under that definition the require-

ments of Section 173 will not apply to new emission

units at an existing plant if there is no increase in

plantwide emissions. NRDC Br. at 32. This argument

is ci~cular and sheds no light on the question before this

Court. Section 173 imposes requirements only on new

and proper. Under that definition “building” and “structure”’—the

two terms that NRDC now contends can apply only to individual

production units—in fact referred to entire plants. See 40 C.F.R.

§ 561.18(j) (1) (i)-(iii) (1981). Indeed, of the four terms in ques-

tion, “building” and “structure” are the only two that have never

been used to refer to anything other than an entire plant. Beyond

that, however, NRDC overreaches in asserting that “building” and

“structure” cannot be defined as an entire plant. While there are

many situations where “plants” are housed within a single “build-

ing” or “structure,” it is a rare plant in which each of the “indus-

trial units which make up a plant” is segregated into a separate

building or structure.

7 636 F.2d at 395-96, 402.

8 ASARCO, Inc. v. EPA, 578 F.2d 319, 323 n.9, 324 and n.17, 326-

27 (D.C. Cir. 1978).

9

sources or modifications to existing sources. If an entire

plant may be treated as a single source, then Section 173

does not apply to any change within that plant that does

not significantly increase plantwide emissions.

The nub of NRDC’s argument, however, appears to lie

in NRDC’s perception that it is unfair or contrary to

Congress’s intent to treat a given emission unit as a

modification when constructed at an existing plant but

as a new source if constructed at a new site. NRDC Br.

at 2, 4, 32.° There is a clear distinction between emis-

sion units built at existing plants and those at new sites.

An emission unit at a new site invariably results in an

increase in emissions. That is often not the case with

emission units at existing sites; and if it should be the

case, review will be required under the present regula-

tions.

D. The Legislative History Does Not Preclude EPA

from Adopting a Plantwide Definition of “Source”

Industry Petitioners will not attempt here to improve

upon EPA’s analysis of the relevant legislative history.’®

We agree with EPA that the legislative history does not

preclude EPA from adopting, or allowing the states to

adopt, a plantwide definition uf “source” for nonattain-

ment program purposes. We do note that the court be-

®NRDC makes much of this supposed distinction between the

construction of a new source at a virgin site versus the construction

of that same source within an existing plant. In fact, existing

source modifications are regulated more strictly than are completely

new sources. No matter whether a plantwide or a “dual” definition

of “source” applies, construction at a new site of a new facility

emitting up to 99 tons of any air pollutant is not subject to new

source review because it is not a “major” source. See the Section

802(j), 42 U.S.C. § 7602(j), definition of “major stationary source.”

Much smaller projects built within existing plants, however, are

subject to new source review as “modifications” if the net emission

increase exceeds one or more of the significance levels (¢.g., 26 tons

or more per year for particulate matter).

10 See EPA Br. at 42-48 and EPA’s Reply to NRDC’s Opp. at 4-7.

10

low considered NRDC’s legislative history arguments,"

conducted its own survey of that history, and ultimately

concluded that the legislative history of the 1977 Amend-

ments to the Act affords no clear resolution of the

“source” issue. 685 F.2d at 723, Chev. Pet. App. at A-8.

Having so concluded, the court below should have de

ferred to EPA’s reasonable interpretation of that term

for purposes of Part D. Union Electric Co. v. EPA, 427

U.S. 246, 256 (1976); Train v. NRDC, 421 U.S. 60, 87

(1975).

The post hoc legislative history cited by Respondent

NRDC (NRDC Br. at 38) and amicus United Steel-

workers of America relating to the Steel Industry Com-

pliance Extension Act of 1981 ** does not shed any light

upon Congress’s intent in 1977 with regard to the scope

of “source” for purposes of Part D.’* It is well settled

that post hoc legislative statements and determinations

are not a reliable indicator of the collective intent of a

prior Congress. Bunker Hill Co. v. EPA, 658 F.2d 1280,

1284 (9th Cir. 1981). Moreover, Congressional state-

11 Restated by NRDC in its Brief at 33-38 and its Opp. at 10-21.

12 Pub. L. No. 97-28, 95 Stat. 189 (1981), codified as amendments

to Section 113 of the Clean Air Act, 42 U.S.C. § 7413.

18 The Extension Act was passed by Congress in July, 1981, four

months after EPA’s March, 1981 Federal Register proposal to adopt

a plantwide definition of “source.” If Congress wanted to settle this

point in the 1981 Act, it could have done so easily and directly by

insertion of a definition of “source” in Part D or Section 302. In

fact, as NRDC points out (Opp. at 24 n.50), in May, 1982 the Senate

Committee on Environment and Public Works, in S. 3041, adopted

171(5)), reprinted in 8. Rep. No. 666, 97th Cong., 2d Sess. 157

(1982). That S. 3041, although not enacted, included such a defini-

tion underscores Petitioners’ point that Part D in its present form

does : ot specify a definition for “source.”

11

ments narrowly focusing upon amendments to Section 113

(relating to enforcement), 42 U.S.C. § 7413, of Part A of

the Clean Air Act for the purpose of granting relief to

the economically beleaguered steel industry cannot be ap-

plied meaningfully to interpret terms of the Part D pro-

grams with their far broader purposes of accommodating

growth and air quality improvement in nonattainment

areas.

II. EPA’S CONSIDERATION OF THE ISSUES RAISED

BY THE PLANTWIDE “SOURCE” DEFINITION

WAS ADEQUATE

Contrary to NRDC’s assertions at 25-26 of its brief,

EPA did not fail to consider an important aspect of the

problem, i.e. whether the plantwide definition of “source”

promotes pollution-reducing modernizations or, more ac-

curately, whether the “dual” definition discourages such

modernizations. EPA raised this issue and weighed com-

ments on it. See 46 Fed. Reg. 50767-68 (Oct. 14, 1981),

J.A. 104-06. Pertinent responsive comments cited actual

situations of the modernization-inhibiting effects of the

“dual” definition. No other comments provided evidence

to the contrary. In the end, however, EPA based its

adoption of the plantwide definition upon two important

policy considerations (administrative simplicity and state

flexibility) and explicitly disclaimed any reliance on the

impact upon modernization of either definition. Jd."

“The court below criticized EPA's failure to produce any

“studies” or “surveys” establishing that the “dual” definition would

retard air quality improvement in the aggregate. 685 F.2d at 727

n.41, Chev. Pet. App. at A-18 n.41. At no prior time, however, dur-

ing the August 1980 promulgation of the “dual” definition or other-

wise, did EPA cite any such study or survey establishing that the

“dual” definition would aid air quality in aggregate. Neither the

1980 “dual” definition rulemaking record nor the 1981 plantwide

definition rulemal:ing record contains any studies or surveys on the

modernization ‘apact of either definition nor did EPA claim that

studies or surv\ ys existed to support either definition. Absent such

studies or surveys, EPA properly based its 1981 determination upon

12

EPA’s choice has a rational basis, and, under settled prin-

ciples, that choice must be upheld whether or not NRDC

or the court below agrees that it is the best choice.”

Train v. NRDC, 421 U.S. at 87.

Ill. THE STATE AMICUS BRIEF PROVIDES NO BASIS

FOR INVALIDATING THE PLANTWIDE “SOURCE”

DEFINITION

The states joining the Pennsylvania amicus brief do

not, and in the face of clear record evidence to the con-

trary ** cannot, contend that a “dual” definition of

“source” is essential to enable all states to reach attain-

ment of ambient air quality standards as expeditiously as

practicable. Indeed, they do not even contend that that is

the case in their own states. Rather, they argue that

(1) unless all states are forced to adopt a “dual” defini-

tion, regardless of whether that definition will benefit air

quality, other states such as themselves will be at a “com-

petitive disadvantage” (State Br. at 8), and (2) a man-

reasonable policy considerations of administrative simplicity and

maximum state flexibility. See Rhinelander at 10416.

15 As more fully set forth in the initial briefs (Industry Br. at

23-31, EPA Br. at 23-41), reducing emissions was not the only

purpose which underlay Congress's enactment of Part D of the Act.

Had it been, Congress simply could have prohibited the operation of

any source in any area where national ambient air quality standards

are exceeded. Instead, however, Congress carefully crafted a bal-

ance between economic vitality and the need to reduce emissions.

Even if “studies” or “surveys” were available (see n.14 above) , there-

fore, demonstrating that the “dual” definition was superior to the

plantwide definition in terms of reducing emissions, that alone

would not invalidate EPA's choice of the plantwide definition. The

only inflexible command of the Act is that the ambient standards be

attained by a given date. It is neither unlawful nor arbitrary for

EPA to permit states to use a plantwide definition when and if they

can demonstrate that that mandate will be achieved with that

definition.

16 See Comments of the Arizona Department of Health Services,

J.A. 186-87.

13

datory “dual” definition gives the states a powerful club

for forcing existing plant owners seeking to grow or

modernize “voluntarily” to settle with a state, rather than

litigate, other, unrelated air issues in controversy with

that state (State Br. at 10).

We submit that to require a nationwide “dual” defini-

tion of “source” on the basis of such considerations would

fly in the face of the expressed intent of Congress in en-

acting Part D—namely to give all states “greater flexi-

bility [in allowing reasonable economic growth in nonat-

tainment areas while assuring attainment of ambient air

standards] than EPA’s [then] present interpretative

regulations afford.” H.R. Rep. No. 95-294, 95th Cong.,

1st Sess. 211 (1977).

There is no Yasis in the Act for penalizing the thirty-

one states or jurisdictions that have to date elected to

implement a plantwide “source” definition (see EPA Br.

at 3, 39)—and of which eighteen have already demon-

strated to EPA that such implementation is consistent

with achievement of the air quality goals of the Act—be-

cause a handful of other states elect not to do so. States

always have the option of adopting requirements more

stringent than the Act requires, but if they elect to do so,

they must also accept the consequences—that industry

may choose to relocate in areas which permit reasonable

growth and modernization consistent with attainment and

maintenance of national standards. Indeed, the relocation

of industry to areas where there is more opportunity and

room for growth and modernization is basically consistent

with the goals of both Parts C and D of the Act.

CONCLUSION

For the foregoing reasons, in addition to those stated

in our initial brief, the decision below should be reversed.

STARK RITCHIE

Davip T. DEAL

AMERICAN PETROLEUM

INSTITUTE

1220 L St., N.W.

Suite 900

Washington, D.C. 20005

Attorneys for the American

Petroleum Institute, et al.

THEODORE L. GARRETT

PATRICIA A. BARALD

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

Attorneys for the Chemical

Manufacturers Association

Louis E. Tos!

WILLIAM L. PATBERG

FULLER & HENRY

800 Madison Ave.

Toledo, Ohio 43603

Attorneys for General Motors

Corporation

February 22, 1984

Respectfully submitted,

ROBERT A. EMMETT

(Attorney of Record)

DAVID FERBER

REED SMITH SHAW & McCCLAY

1150 Connecticut Ave., N.W.

Suite 900

Washington, D.C. 20036

(202) 457-6144

Bair S. MCMILLIN

REED SMITH SHAW & McCLAY

747 Union Trust Building

Pittsburgh, PA 15219

(412) 288-3228

Attorneys for Petitioners

American Iron and

Steel Institute, et al.

CHARLES F. LETTOW

CLEARY, GOTTLIEB, STEEN

& HAMILTON

1752 N St., N.W.

Washington, D.C. 20036

Attorney for the Rubber

Manufacturers Association

Of Counsel:

BARTON C. GREEN

General Counsel and Secretary

American Iron and Steel

Institute