# Petition — Alabama Power Co. v. Sierra Club

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1488%3A01

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1248

## Text

B38 = 1429 Otis Supreme Court US.

FEB 28 1984
No. 83-

TEVAS,
CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

ALABAMA POWER Co., et al.,
Petitioners,
Vv.

SIERRA CLUB, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

HENRY V. NICKEL
(Counsel of Record)

F. WILLIAM BROWNELL

MICHELE POLLAK
HUNTON & WILLIAMS
P.O. Box 19230
2000 Pennsylvania Ave., N.W.
Washington, D.C. 20036
(202/955-1500)

Counsel for Petitioners
Alabama Power Co., et al.

February 28, 1984

Witson - Eras Prinrine Co.. Inc. - 769-0096 - Wasnincron, D.C. 20001

QUESTIONS PRESENTED

1. Whether, instead of independently construing tech-
nical statutory terms—terms that will determine if a
State must use contrary-to-fact “stack height” assump-
tions in revising its State Implementation Plan under
§110 of the Clean Air Act—the Court of Appeals
was required to give “legislative effect” to EPA’s rule
making application of those terms when § 123 of the
Clean Air Act specifically directs that their meaning
be determined by EPA through rulemaking?

2. Whether the Court of Appeals was correct in order-
ing EPA to disregard historical engineering practice and
to develop “Good Engineering Practice” (GEP) rules
that will require comprehensive State Implementation
Plan revisions, when the legislative history of § 123 in-
dicates that EPA could rely on historical practice in
defining GEP and when such State Implementation Plan
revisions

(a) are not needed to assure compliance with the
public health and welfare-based ambient air
quality standards;

(b) will impose great complexities on the already
complex air pollution control programs being ad-
ministered by the States; and

(ce) could require fuel switching, new control tech-
nologies or both, costing hundreds of millions of
dollars?

8. Whether the Court of Appeals (which clearly mis-
understood the effect of EPA’s “plume impaction” rule)
was correct in ordering EPA to require the States to use
contrary-to-fact assumptions that only apply to sources
located in hilly or mountainous parts of the country, when
the consequences of using such contrary-to-fact assump-
tions were never considered by Congress in enacting § 123
and when the use of these assumptions will result in State
Implementation Plan revisions which will

(a) in the words of the Court of Appeals, “harshly
discriminate” against both existing facilities and

(i)

ii

new development in hilly or mountainous regions
of the country; and

(b) impose pollution control costs that are billions of
dollars more than the costs associated with the
emission limitations that would be required for
identical, or even more polluting, sources located
in flat terrain?

PARTIES TO THE PROCEEDING

This case involves challenges to final regulations pro-
mulgated by EPA under § 123 of the Clean Air Act, 42
U.S.C. § 7423. Sierra Club and Natural Resources De-
fense Council (NRDC) were petitioners in Case Nos. 82-
1384 and 82-1845. The Commonwealth of Pennsylvania
was petitioner in Case Nos. 82-1412 and 82-1889. These
cases were consolidated on August 18, 1982. The U.S.
Environmental Protection Agency was the Respondent in
all of these proceedings. Petitioners, Alabama Power Co.,
66 other individual electric utilities,* the Edison Elec-
tric Institute, the National Rural Electric Cooperative
Association, and the American Public Power Association
intervened on behalf of Respondent EPA in all of these
proceedings. The American Petroleum Institute, Gulf
Oil Co., Shell Oil Co., Standard Oil Co. (Indiana) and
Texaco Co. also intervened on behalf of Respondent in
all of these proceedings. Kennecott Minerals Co. and
Tennessee Valley Authority intervened on behalf of Re-
spondent EPA in Case No. 82-1384. The State of Ver-
mont, the State of New York, the Commonwealth of
Massachusetts, the State of Rhode Island and the State
of New Hampshire intervened jointly on behalf of Pe-
titioners Sierra Club and NRDC in Case No. 82-1354.
These states also intervened on behalf of the Common-
wealth of Pennsylvania in Case No. 82-1412.

* A liet including the names of the individual companies that
comprise Petitioners Alabama Power Co., et al., and all parent
companies, subsidiaries, and affiliates is contained in the supple
mental appendix attached to this Petition pursuant to Rule 28 of
this Court.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................00.0.ssssessesssesesseveese

PARTIES TO THE PROCEEDING ...... hiseteneeesnasatalinaaai

ee ee

OPINIONS BELOW ...................... jeansligesiaegiinidicnpinaaaiaan

JURISDICTION ......... higulitansneiatenlian asscenaevivddsainpabibaoet

STATUTORY AND REGULATORY PROVISIONS
II cxicinisictecicchnctehsicsbeientiencsesninecaneciablettauicibaidy caitaniaiiah

STATEMENT OF THE CASE....................... shaekotuiiitiiean

i EE ie eee Omen
A. The Long-Standing Staidiiee: and Regula-

II.

III,

tory Practice ............ sa dahnielitidceabsasddeesiaaiiediie

THE EPA RULEMAKING 000000... eeeceeeeeeee

A.

af ep

The 1979 Proposals and the Subsequent Re-
ID "ica doctendbesticcemntincesnassnbinissnidacotancideec

1
2. “Excessive Concentrations”
3

Se BN Sittcohcetiesiccntstttnciocaeennn

TAUNTON adiailtnctansterathdnstasdoalvdbbebiaddninuitaeadd
PEED CITE scocsinithiniciiccinsttetiinasatihdlehiitiabes
Requirements on Remand ..000000000..0..-.ccccceeeeees

(iii)

iv

TABLE OF CONTENTS—Continued

REASONS FOR GRANTING THE WRIT ....................

I, THE D.C. CIRCUIT’S REJECTION OF EPA’S

II.

ITI.

IV.

RULEMAKING IMPLEMENTATION OF
“GOOD ENGINEERING PRACTICE” VIO-
LATES THE DECISION OF THIS COURT IN
HERWEG v. RAY THAT AN AGENCY’S
DEFINITION OF TECHNICAL TERMS IN
ITS ENABLING LEGISLATION MUST BE
GIVEN “LEGISLATIVE EFFECT” ..................

EPA’S INTERPRETATION OF TECHNICAL
STATUTORY TERMS WAS “SUFFICIENTLY
REASONABLE” TO PRECLUDE THE D.C.
CIRCUIT FROM SUBSTITUTING ITS JUDG-
MENT FOR THAT OF THE AGENCY .............

THE D.C. CIRCUIT EXCEEDED ITS AU-
THORITY AS A REVIEWING COURT BY
REQUIRING EPA TO APPLY ITS GEP
RULES TO SOURCES IN RUGGED TERRAIN
IN A MANNER NEVER CONSIDERED BY
CPD wietinssicssovicisisiciiacineissnnjiiiedntesimaniaaiessniiatan

THE D.C. CIRCUIT’S DECISION WILL SERI-
OUSLY RESTRICT ECONOMIC GROWTH IN
MANY AREAS OF THE COUNTRY AND
WILL GREATLY COMPLICATE ADMINIS-
TRATION OF THIS NATION’S SYSTEM OF
AIR QUALITY REGULATION .................

ICG ssseneniieensraicictncsieniiin siibiiateiliiesiiiniiainans —

Page
16

18

20

v

TABLE OF AUTHORITIES

CASES: Page
American Tobacco Co. v. Patterson, 456 U.S. 68
Ee MLS IOS le: 26
Batterton v. Francis, 482 U.S. 416 (1977) .............. 19
Beal v. Doe, 482 U.S. 488 (1977) .........-....--c0ccec-eeeeee 22
Big Rivers Electric Corp. v. EPA, 528 F.2d 16 (6th
Cir. 1975), cert. denied, 425 U.S. 984 (1976)........ 7
Black Citizens for a Fair Media v. FCC, 719 F.2d
dS Re 17
Chevron U.S.A., Inc. v. NRDC, Noa. 81-1005, et al.,
cert. granted, 108 S.Ct. 2427 (1988) .................... 8,4
Citizens to Save Spencer County v. EPA, 600 F.2d
UE 26
Corning Glass Works v. Brennan, 417 U.S. 188
EST at gt AA El 21

Democratic Senatorial Campaign Comm. v. FEC,
660 F.2d 773 (D.C. Cir. 1980), rev’d, 454 U.S.

RE ERED Ean 5 17
FCC v. Pottsville Broadcasting Co., 309 U.S. 184

EE Se 26
FEC v. Democratic Senatorial Campaign Comm.,

BETES SE 19
Fri v. Sierra Club, 412 U.S. 541 (1978) —......00....... 8
Herweg v. Ray, 455 U.S. 265 (1982)... 17, 19, 20
INS v. Wang, 450 U.S. 189 (1981) ...........................+- 22
Investment Company Institute v. Camp, 401 U.S.

RNG LSet a a eR 22
Kennecott Copper Corp. v. EPA, 526 F.2d 1149 (9th

Cir. 1975), cert. denied, 425 U.S. 935 (1976)...... 7

Montana Power Co. v. EPA, Nos. 76-529, et al.,
cert. granted, 480 U.S. 958 (1977), vacated and

remanded, 434 U.S. 809 (1977). 8
National Wildlife Federation v. Gorsuch, 698 F.2d

I ees 18
NRDC v. EPA, No. 81-2001 (D.C. Cir. January 17,

ST Sn ene 16
NRDC v. EPA, 529 F.2d 755 (5th Cir. ET 6, 7
NRDC v. EPA, 489 F.2d 890 (5th Cir. 1974) ......... 7

Public Service Comm'n v. Mid-Louisiana Gas Co.,
108 S. Ct. 3024 (1988) ... ; 18, 26

vi
TABLE OF AUTHORITIES—Continued
Page
Rose v. Lundy, 455 U.S. 509 (1982) .........0......0 25

Schweiker v. Gray Panthers, 458 U.S. 34 (1981)... 19
Sea-Land Service, Inc. v. Kreps, 566 F.2d 768 (D.C.

RRR AERP a aaa ae A pC 25
Sierra Club v. Costle, 719 F.2d 486 (D.C. Cir.

END SRT PEC eee eae ee EIT passim
Sierra Club v. Gorsuch, C.A. No. 81-0094 (D.D.C.

ial A REST et OBR 11
South Prairie Construction Co. v. Operating Engi-

00076, 4B5 U.B. GOO (176) .....crcccccccccccccccsccccsoceceses 26
Train v. NRDC, 421 U.S. 60 (1975) ............. 8, 4, 17, 20, 29
Union Electric Co. v. EPA, 427 U.S. 246 (1976).... 3,4,

20, 29

STATUTES:
pL ES Ce eae 17
os Ta es | Sanne 2
f ‘eg aa Ce 17

The Clean Air Act, 42 U.S.C, § 7401, et seq. (Supp.
V 1981)

§ 101(b) (1), 42 U.S.C. § 7401(b) (1) (Supp.

ch
§ 108, 42 U.S.C. § 7408 (Supp. V 1981) ....... 4
§ 109, 42 U.S.C. § 7409 (Supp. V 1981) ....... 4
§ 110, 42 U.S.C. § 7410 (Supp. V 1981) ....... passim
§ 128, 42 U.S.C. § 7428 (Supp. V 1981) ....... passim
§ 128(a) (1), 42 U.S. C. § 7423(a) (1) (Supp.
i RP ae. Pe a 8, 18
§128(c), 42 U.S.C. §7428(c) (Supp. V
BED heecehetiedblashcetllteeciesiinhnoeietadntehatechdietidssamananed 8, 20, 24
§ 163, 42 U.S.C. § 7478 (Supp. V 1981) ......... 4, 27
§ 165 (d) (2) (D) (iii)-(iv), 42 U.S.C. § 7475
(d) (2) (D) (iii)-(iv) Supp. V 1981).......... 26
§ 169, 42 U.S.C. § 7479 (Supp. V 1981) .......... 18
§807(b), 42 U.S.C. §7607(b) (Supp. V
RIES re ee IY 17
§ 807(b) (1), 42 U.S.C. § 7607(b) (1) (Supp.
1 <PEEOD bdicsisdeedeadiebteciiasott np tnildcececiitialetadlons adlboddoels 1
§820(a), 42 U.S.C. §7620(a) (Supp. V
1981) 28
47 U.S.C. § 402(b) (1976) 17

vii
TABLE OF AUTHORITIES—Continued

REGULATIONS: Page
40 C.F.R. §51.1(z), (ff)-(mm) (1988) ................. passim
40 C.F.R. § 61.12(j)-(1) (1988) .............000 passim
— Bok TB). | a Cee passim
Cie ND SCD casectctsevenscrvecnsereccesscerese 9

FEDERAL REGISTER:
88 Fed. Reg. 25697, et seq. (1978) ....ccccccccccccccceee 6,7
41 Fed. Reg. 7450, et seg. (1976) ...............00.. 6
42 Fed. Reg. 57459, 57460 (1977) ........0.............. 9
44 Fed. Reg. 2608, et seq. (1979) 0.0... 9
46 Fed. Reg. 49814, et seq. (1981) ......000000000.... 11, 28
47 Fed. Reg. 5864, et seg. (1982) ...........000.000000 passim

MISCELLANEOUS:

H.R. Rep. No, 294, 95th Cong., Ist Sess. (1977),
reprinted in, The Environmental Policy Division
of the Congressional Research Service of the
Library of Congress, A Legislative History of
the Clean Air Act Amendments of 1977 (1978) ..passim
8.768, 98th Cong., lst Sess. (1983) 0.000... 8
Washington Post, February 3, 1984, A17, col. 1...... 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-

ALABAMA POWER Co., et al.,
Petitioners,
Vv.

SIERRA CLUB, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Alabama Power Co., 66 other individual electric utili-
ties,’ the Edison Electric Institute, the National Rural
Electric Cooperative Association, and the American Pub-
lic Power Association, respectfully petition for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the District of Columbia Circuit en-
tered in this proceeding on October 11, 1983.?

1 The 67 individual utility petitioners and their parent companies,
subsidiaries, and affiliates are set forth in the supplemental appendix
attached to the petition pursuant to Rule 28 of this Court.

2 The court below had jurisdiction of these cases under § 307
(b) (1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1) (Supp. V
1981), which provides the District of Columbia Circuit with ex-
clusive jurisdiction to review any “nationally applicable regulations
. +» promulgated by the Administrator... .”

2

OPINIONS BELOW

The opinion in the Court of Appeals in Sierra Club,
et al. v. EPA, Nos. 82-1884, 82-1412, 82-1845, 82-1889
(D.C. Cir. October 11, 1983), is reported at 719 F.2d
436. A copy of the opinion appears in the Appendix
hereto (hereinafter referred to as “App. ——’’) at la-
69a.

JURISDICTION

The judgment of the Court of Appeals for the D.C.
Circuit was entered on October 11, 1983. A timely Peti-
tion for Rehearing and Suggestion for Rehearing En
Banc were denied on December 13, 1983, App. 70a, 72a,
and this petition for certiorari is being filed within 90
days of that date. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1254(1) (1976).

STATUTORY AND REGULATORY
PROVISIONS INVOLVED

The following statutory and regulatory provisions are
set forth in the Appendix:

1. Clean Air Act §§101, 110(a) (1)-(a) (2) (J),
123, 42 U.S.C. §§ 7401, 7410(a) (1)-(a) (2) (J),
7423 (Supp. V 1981), App. 106a-111a.

2. 88 Fed. Reg. 25697, et seq. (1973) (Initial Guid-
ance on Use of Supplementary Control Systems),
App. 103a-105a.

8. 47 Fed. Reg. 5864, et seg. (1982) (Final Stack
Height Rules), 40 C.F.R. § 51.1(z), (ff)-(mm),
§ 51.12(j)-(1), §51.18(1) (1988), App. 80a-102a.

STATEMENT OF THE CASE

Section 110 of the Clean Air Act establishes a federal-
state partnership to implement federal ambient air qual-
ity requirements. Since the Clean Air Act was amended
in 1970 to initiate this exercise in federalism, this Court
has been requested on five occasions to review decisions
of the Courts of Appeals that have called upon EPA to

redirect aspects of the federal-state clean air program.
Each of these cases involved one or more decisions by the
Courts of Appeals rejecting EPA’s interpretation of its
obligations under $110. Reflecting the importance of
such cases to the federal government and to each of the
50 states which are bound by EPA guidance, certiorari
was granted in each instance.*

The decision of the Court of Appeals for the District
of Columbia Circuit in this case, like the other five cases
in which this Court has granted certiorari, calls into
question the continuation of the current federal-state
system of implementing ambient air quality require
ments. In the exercise of its exclusive jurisdiction under
the Clean Air Act, the court below has required EPA to
rewrite very technical regulations dealing with the
amount of “stack height” that can be assumed by the
states in setting emission limitations in the “implemen-
tation plans” required under § 110 of the Act. While the
subject matter may be arcane, the social and economic
consequences that flow from the court’s decision are
staggering, equaling or surpassing those presented in
previous cases reviewed by this Court.

If the decision of the court below is allowed to stand,
air quality regulation in the fifty states will undergo a
dramatic redirection as the states are required to sub-
stitute false stack height assumptions for actual stack
height. As a result, abatement of real pollution prob-
lems will no longer be the primary focus of state air
pollution programs. Instead, the states will be required

* One case resulted in affirmance by an equally divided court.
Fri v. Sierra Club, 412 U.S. 541 (1978). One never reached deci-
sion. Montana Power Co. v. EPA, Nos. 76-529, et al., cert. granted,
430 U.S. 953 (1977), vacated and remanded, 434 U.S. 809 (1977).
One is awaiting decision. Chevron U.S.A., Inc. v. NRDC, Nos. 81-
1005, et al., cert. granted, 108 S.Ct. 2427 (1983). The remaining
two resulted in opinions rejecting Circuit Court decisions that failed
to defer to EPA’s construction of the Act. Train v. NRDC, 421 U.S.
60 (1975); Union Electric Co. v. EPA, 427 U.S. 246 (1976).

4

to develop emission limitations for existing sources and
to regulate new source growth on the basis of theoretical,
not actual, ambient pollution concentrations predicted by
falsely assuming that emissions are released from a short
smokestack. Not only will this judicially-imposed shift
in focus entail the imposition of substantial economic
costs, but it will make administration of ambient air
quality programs of the states infinitely more complex.
See infra pp. 27-29.

The District of Columbia Circuit’s decision in this case
thus calls for a more fundamental revision of § 110
regulatory programs than is involved in the Chevron
case that is currently pending before this Court (Nos.
82-1005, et al.). It presents as extreme a restriction on
the discretion of the states to revise emission limitations
as was involved in Train v. NRDC, 412 U.S. 60 (1975).
It calls for the imposition of emission controls without
regard to costs, as required by Union Electric, but in a
setting which lacks the public health justifications under-
lying this Court’s holding in Union Electric, 427 US.
246, 258-59 (1976). As explained below, the need for
review here is as compelling as it was in any of the prior
cases accepted by this Court.

I. THE STATUTE

The Clean Air Act‘ establishes a system of air qual-
ity regulation that is based upon “National Ambient Air
Quality Standards” (“ambient standards”) and Preven-
tion of Significant Deterioration (“PSD”) “increments”.*

* 42 U.S.C. $§ 7401, et seg. (Supp. V 1981) (hereinafter referred
to as “CAA” or “the Act”). (For convenience, all further citations
will be to the Act. Parallel citations to the U.S. Code are given in
the Table of Authorities.)

5 The ambient standards define maximum ground level concentra-
tions of pollution which, if attained, will assure protection of public
health and welfare. CAA $§ 108, 109. The PSD increments define
the maximum increases in ground level concentrations that are
allowed to occur as a result of new consiruction in areas where the
ambient standards are met. CAA § 163.

5

Under $110 of the Act, the states must set emission
limitations for individual sources to ensure that their
emissions will not cause or contribute to ground level
pollution concentrations that exceed the ambient stand-
ards or PSD increments.

Dispersion of pollution after release from a source
and before it reaches ground level is essential to the
operation of the § 110 federal-state programs. If there
were no dispersion, it would not be possible to operate
any industrial fuel burning facility without creating
pollution concentrations that exceed ambient air quality
standards and PSD increments by factors of many
thousand.* In other words, industrial activity and pro-
tection of the public health could not co-exist without
dispersion. Dispersion, therefore, will determine the type
of fuel a source can use, what control technologies it
must install, and where it can be built.

Section 123 of the Act was added in 1977 and ad-
dresses a question which goes to the heart of the § 110
system of air quality regulation—when must the states
assume that a source’s emissions will reach the ground
in a less dispersed (i.e., more concentrated) condition
than is happening in fact? If this false dispersion as-
sumption is broadly applied, state air quaiity regulation
will shift its focus from actual pollutant concentrations
to wholly theoretical ones.

A. The Long-Standing Engineering and Regulatory
Practice

Engineering standards have traditionally required that
industrial facilities build stacks tall enough to avoid

*For example, if the emissions from a well-controlled source
(e.g., a power plant meeting the stringent EPA new source stand-
ards) were released at ground level, they would create ambient
concentrations of sulfur dioxide (SO,) in the range of 900,000
micrograms per cubic meter. By comparison, the primary (public
health) ambient standard for SO, is 365 micrograms per cubic
meter (24-hour calendar day average), and the Class [I PSD incre-
ment is 91 micrograms per cubic meter (24-hour calendar day
average).

6

atmospheric turbulence which could drive the concen-
trated emissions plume directly to the ground (a phe
nomenon called “downwash’’). As early as the 1930s,
sources built stacks based upon a conservative “good en-
gineering practice” (GEP) formula that required stacks
in flat terrain to be built to a height equal to at least 2.5
times the height of the source in order to avoid excessive
ground level concentrations caused by downwash.” In
mountainous terrain, additional stack height was often
necessary to avoid excessive concentrations due to down-
wash caused by terrain obstacles.* Although most sources
followed these engineering principles in designing stacks,
larger-than-GEP smokestacks were built by certain
sources in order to obtain more dispersion and hence re-
laxed emission limitations.

To eliminate the pollution control advantages that
might be associated with building stacks taller than
GEP height, EPA adopted the traditional GEP concept
in regulatory guidance issued in response to litigation in
1973,° and revised in 1976."° Under the 1973 guidance,
a source could automatically increase stack height up to
2.5 times source height and the states could use that
stack height in determining emission limitations under
$110. The guidelines further noted that a source in
rugged terrain might need stack height greater than 2.5

7 See, e.g., Briggs, Gary A., Plume Rise, Oak Ridge: U.S. Atomic
Energy Commission (1969) ; U.S. Environmental Protection Agency,
Guideline for the Determination of Good Engineering Practice
Stack Height (Technical Support Document for the Stack Height
Regulations) (July 1981, with addendum of December 15, 1981)
(hereinafter referred to as “GEP Guidelines”) at 7-9, Appendix A.
See also EPA 1978 Stack Height Guidelines, 88 Fed. Reg. 25697,
25700 (1978), App. 108a-104a.

® GEP Guidelines at 24-26, Appendix A.
*38 Fed. Reg. 25697, et seg. (1978), App. 108a-105a.

10 41 Fed. Reg. 7450, et seq. (1976) ; see NRDC v. EPA, 529 F.2d
766, 760 (Sth Cir. 1976).

7

times source height to prevent problems associated with
reduced dispersion caused by rugged terrain."

B. The Clean Air Act Amendments

Congress added § 123 to the Clean Air Act in 1977 in
order to codify the court decisions * and pre-existing
regulatory guidance on GEP stack height."* Under § 123,
a state must assume that a source’s emissions are re-
leased from a stack that is no higher than GEP height
whenever actual stack height exceeds GEP height. Thus,
if an actual stack is found to be taller than GEP, emis-
sion limitations for that source and surrounding sources
must be based upon the theoretical, more concentrated
ground level pollution that would result from assuming
the shorter GEP stack height.

Congress’ objectives in adding § 123 to the Act were
two-fold. On the one hand, Congress wanted to provide a
clear statutory basis for the principle that sources that
had built stacks higher than GEP height could not
obtain relaxed emission limitations based upon the
greater dispersion to ground level associated with such
tall stacks.“ On the other hand, Congress wanted to

11 88 Fed. Reg. 25700 (1973), App. 104a.

12 NRDC v. EPA, 529 F.2d 755 (5th Cir. 1976) ; Big Rivers Elec-
tric Corp. v. EPA, 528 F.2d 16 (6th Cir. 1975), cert. denied, 425
U.S. 984 (1976); Kennecott Copper Corp. v. EPA, 526 F.2d 1149
(9th Cir. 1975), cert. denied, 425 U.S. 985 (1976); NRDC v. EPA,
489 F.2d 390 (5th Cir. 1974).

18 See H.R. Rep. No. 294, 95th Cong., 1st Sess. 93 (1977),
reprinted in, The Environmental Policy Division of the Congres-
sional Research Service of the Library of Congress, A Legislative
History of the Clean Air Act Amendments of 1977 2560 (1978)
(hereinafter referred to as “1977 Legis. Hist.’’)

14 Jd. Congress, as reflected in the House Report, was concerned
that if it allowed sources to use greater-than-GEP stack height
(i.e., tall stacks) as an alternative to emission controls, a number of
adverse consequences might ensue. Congress discussed “long range
transport” and “acid rain” in this regard. It should be emphasized

make it clear in § 123 that the amount of dispersion to
ground level associated with GEP stack height should
be credited in setting emission limitations."° In other
words, § 123 reflects Congress’ understanding that the
amount of dispersion associated with GEP stack height

was integral to any proper emissions control program."*

In $123, Congress directed that GEP be “deter-
mined under regulations promulgated by the Adminis-
trator.” CAA 3 123(a)(1), App. 110a. Three general
criteria were set forth by Congress to guide the Agency in
its exercise of this broad grant of rulemaking authority.

First, Congress directed that GEP be defined in a
manner “to insure” that “nearby” structures or terrain
will not create downwash that “result/s] in excessive con-
centrations of any air pollutant.” CAA §128(c) (em-
phasis added), App. llla. The meaning of technical
terms underlying the GEP concept (such as “excessive
concentrations” and “nearby”) were to be “determined
by the Administrator,” subject to the conservative “to
insure” standard. Id. Second, Congress specified that GEP

that these “adverse effects” cited in the House Report were those
that would, it was believed, flow from abandoning emission controls
in favor of increased tall stack dispersion. In other words, this
legislative history explained why Congress was codifying past pruc-
tice in § 128 rather than repealing it. See H.R. Rep. No. 95-294 at
84-88, 98, 1977 Legis. Hist. at 2551-555, 2560. It should also be
emphasized that § 123 is not written to require the development of
any kind of rational “long range transport” or “acid rain” control
measures. Rather, § 123 requires that emission limitations be set in
terms of theoretical, local concentrations, and not the far-field down-
wind deposition that is asserted to have a public health or welfare
significance. Indeed, the Administration and Congress are presently
in the throes of addressing the need for acid rain legislation. See
8.768, 98th Cong., 1st Sess. (1983) ; Washington Post, February 38,
1984, at A17, col. 1.

18 H.R. Rep. No. 95-294 at 98, 1977 Legis. Hist. at 2560.
16 Jd.; see supra note 6 and accompanying text.

9

rules may not allow stack height credit in excess of “two
and a half times the height of such source [the “histori-
cal” GEP formula] unless the owner or operator...
demonstrates ... that a greater height is necessary” to
avoid excessive concentrations due to downwash. /d. (em-
phasis added). Third, Congress ordered that “[i]n no
event may the Administrator prohibit any increase in
any stack height or restrict in any manner the stack
height of any source.” Id.

Il. THE EPA RULEMAKING

After enactment of the 1977 Amendments, EPA an-
nounced in November 1977 that the traditional “good
engineering practice” standard of 2.5 times source height
would be applied to new and existing sources pending the
development of regulations under §123 of the Act.”
The rulemaking to implement § 123 was initiated in
January 1979. At that time, EPA proposed a radical
change in the definition of “good engineering practice.”

A. The 1979 Proposals and the Subsequent Reevaluation

EPA’s January 1979 proposals would have required
many sources that had made commitments based upon
the traditional 2.5 rule to recalculate stack height credit
based upon costly case-specific demonstrations.’* The
proposals would also have severely restricted the in-
stances in which sources in mountainous terrain could
demonstrate that terrain obstacles caused unacceptable
downwash."* These and other aspects of the proposals
would have vastly increased the number of instances in
which false stack height assumptions would have had to

1142 Fed. Reg. 57459, 57460 (1977); see 40 C.F.R. § 51.24(h)
(1988).

18 See 44 Fed. Reg. 2608, 2610-11 (1979); see Comments of the
Utility Air Regulatory Group (April 8, 1979) at 15-22.

19 44 Fed. Reg. at 2611, 2614.

10

be used in setting emission limitations under state im-
plementation plans.”

Industry and states strongly criticized these initial
proposals. Their rulemaking comments showed that
EPA’s departure from established engineering principles
would cost industry and consumers billions of dollars to
meet new emission limitations based upon false stack
height assumptions.*' Furthermore, these comments
showed that the proposals would economically discrimi-
nate against sources in mountainous and hilly terrain
by requiring them to meet emission limitations ten times
more stringent than emission limitations for identical
sources in flat terrain.” Finally, these cominents showed
that these rules would have imposed substantial admin-
istrative burdens on the states. See infra pp. 27-29.

Based upon these comments, the schedule for promul-
gation of final rules was suspended while EPA con-
ducted additional analyses of the impacts of its § 123
proposal. EPA’s consultant issued a report in August
1980 that found that the 1979 proposals would have re-
sulted in increased capital costs of up to $2.8 billion and

20 See ICF, Inc., Economic Impact of Tall Stack Regulations
(June 1981) (appended to Comments of the Utility Air Regulatory
Group (June 16, 1981)); EEA, Inc., Cost and Economic Impact
Analysis of the Proposed Stack Heights Regulation (August 15,
1980) at 10-17, App. 182a-129a (hereinafter referred to as “1980
Impact Assessment”); Comments of the Utility Air Regulatory
Group (April 8, 1979) at 6-29.

21 See, e.g., Comments of Monsanto Co. (March 9, 1979) at 2;
Comments of Gulf States Utilities Co. (March 8, 1979) at 1-2;
Comments of the State of New Jersey Department of Environmen-
tal Protection (March 12, 1979) at 1-2; Comments of the State of
Maryland Department of Environmental Health Administration
(February 28, 1979) at 1.

22 See, e.g., Environmental Research and Technology, Analysis of
EPA Proposed Regulations on Stack Height Limitation (March
1979) (submitted as Appendix C to Comments of the Utility Air
Regulatory Group (March 1979)) at 14-20, App. 116a-122a; see
infra notes 52 & 53.

11

increased annual costs of up to $794 million for utilities
alone, and in rate increases of up to 26% for individual
utilities. Additional costs would have been imposed on
utilities in mountainous terrain. See infra note 52.

In light of the rulemaking comments and its own addi-
tional analyses, EPA reproposed new rules in October
1981,% pursuant to a court order that required promulga-
tion of final rules by January 1982.% The reproposed
rules more closely paralleled the traditional engineering
and regulatory concept of “GEP” stack height.

B. The Final Rules

In February 1982, EPA promulgated final rules that,
like the reproposed ;ules, are consistent with traditional
engineering and reguiatory practice.

1. The “GEP Formula”—EPA’s final rules adopt the
traditional GEP formula to govern dispersion credits for
stacks in existence before January 12, 1979 (the date of
the initial EPA proposals), and adopt a refinement of the
traditional 2.5 times source height rule (called the
“141.5” rule) for stacks that are built after this date.
EPA concluded, based upon the extensive record it had
compiled,”* that these formulas would yield a stack of
sufficient height “to insure” that excessive concentrations
due to downwash would be avoided.?’

23 1980 Impact Assessment at 10-18, App. 128a-129a.
24 46 Fed. Reg. 49814, et seq. (1981).

25 Sierra Club v. Gorsuch, C.A. No. 81-0094 (D.D.C. Aug. 20,
1981).

2* During § 123 rulemaking, EPA developed thousands of pages
of documents in analyzing various aspects of the proposed and final
rules. Over 100 commentators filed comments discussing various
portions of the proposed rules. Public hearings were held that
produced hundreds of additional pages of transcript and testimony.

27GEP Guidelines at 2, Appendix A; 47 Fed. Reg. 5864, 5865
(1982), App. 84a.

12

2. “Excessive Concentrations”—The final rules provide
that credit above GEP formula height may be obtained
only if the affected source makes a specific showing that
the formulas fail to allow enough stack height credit “to
insure” against “excessive concentrations” due to down-
wash.”* “Excessive concentrations,” a statutory term, is
defined as a substantial “percentage increase” (i.e., 40
percent) in ambient concentrations caused by downwash.
This definition reflects the historical engineering and reg-
ulatory notion of a maximum acceptable downwash condi-
tion.”

8. “Nearby’”—The statute provides that “excessive con-
centrations” must result from downwash caused by “near-
by structures” or “nearby terrain obstacles.” In accord-
ance with the common understanding of the term, EPA
defined “nearby” as a relative concept that is dependent
upon the size of the object. Since larger objects will cause
severe downwash at greater distances, EPA compiled an
extensive record on the relationship between downwash
and the obstacles that might produce it.” In the case of
buildings and other manmade structures which are char-
acterized by regular shapes and sizes, EPA was able to
define “nearby structures” by a formula: “5 times” the
height or width of the structure, up to % mile.” Since
terrain obstacles are much larger than buildings and have
irregular shapes, EPA found that unacceptable downwash
could extend for much greater distances. EPA could not
determine a precise fyrmula, however, and therefore de-

28 See GEP Guidelines at 20-28; 47 Fed. Reg. at 5865, App. 84a-
87a (1982).

2% See GEP Guidelines at 20-23; J.E. Cermak and R.L. Petersen,
Comments on the Proposed Regulations of 7 October 1981 to Imple-
ment Section 123 of the Clean Air Act (November 1981) at 1-8 (Ap-
pended to Comments of the Utility Air Regulatory Group (Novem-
ber 18, 1981)).

% See GEP Guidelines at 5-15, 24-26.
81 47 Fed. Reg. at 5869, App. 100a.

18

fined a “nearby terrain obstacle” as one that is demon-
strated through a fluid modeling study to be close enough
to the source to cause at least a 40 percent increase in
local ambient concentrations due to downwash.”™

4. “Plume Impaction”—EPA included in these rules
a provision that governs development of GEP emission
limitations in mountainous or hilly terrain. This pro-
vision—called the “plume impaction” rule—requires emis-
sion limitations for rugged terrain sources to be set using
GEP stack height assumptions. It permits such sources,
however, to adjust the terrain height assumption in the
atmospheric dispersion model that must be used to estab-
lish a GEP emission limitation. See infra note 60. This
adjustment is necessary to avoid predictions showing
plume impaction (i.e., a concentrated plume drifting into
elevated terrain rather than reaching ground level after
dispersion) that could never occur in reality." Under
this rule, the GEP-based emission limitation governs un-
less the use of actual terrain height and actual stack
height would require a more restrictive emission limita-
tion. See infra pp. 22-23.

Ill. THE D.C. CIRCUIT’S DECISION

On October 11, 1983, the D.C. Circuit set aside virtually
every significant portion of EPA’s § 123 regulatory pro-
gram. The court found that since “Congress appears to
have taken the main elements of [the 1973 EPA guid-
ance] statement in its definition of good engineering prac-
tice height,” App. 9a, 10a, EPA’s construction of § 128
seemed to reflect what Congress “probably had in mind.”
App. 42a-48a. Nonetheless, the court rejected EPA’s re-
liance upon historical practice because such reliance would
not carry out what the court asserted was the “pre-

52 Id. at 5865, 5868-69, App. 86a, 100a; GEP Guidelines at 47-48.

%3 See GEP Guidelines at 4, 560-51, addendum of December 15,
1981; 47 Fed. Reg. at 5866-67, App. 90a-94a.

14

dominant purpose” of § 123—to force emission reductions
through the use of false stack height assumptions.™

As enunciated by the court, “two precepts are the heart
of [its] holding” on GEP stack height. App. 28a. First,
in defining GEP, the court held that EPA was wrong in
adopting “a conservative [GEP] rule that was absolutely
sure to eliminate health hazards.” Instead, the court held
that EPA must justify its GEP rules “independent of”
historical engineering practice. Jd. Second, where there
is a choice between definitions of a term, the court di-
rected EPA always to “err on the side of reducing stack
height.” Jd.

1. The “GEP” Formula—Based upon its independent
reading of § 123, the court set aside EPA’s rule estab-
lishing a “GEP formula” on which sources could rely in
building stacks and the states could rely in setting emis-
sion limitations. It held that since EPA’s regulation de-
fining a GEP formula might, in some cases, provide more
protection against downwash than is needed, “[r]ation-
ality demands” that EPA require case-specific showings
that its rule does not provide too much protection against
unacceptable downwash. Alternatively, EPA must estab-
lish a GEP formula that never provides for too much
protection. App. 46a-47a.

2. “Excessive Concentrations”—The court set aside
EPA’s definition of “excessive concentrations,” finding
that although it was “likely . . . that Congress thought

* App. 18a. The court also characterized § 123 generally “as
something of a concession from the strict command that dispersion
not be used to meet air quality standards.” Jd. (emphasis added).
No support is cited in the statute or the legislative history for
either this characterization or the court’s conclusion regarding
§123’s “predominant purpose.” Indeed, the “strict command”
against dispersion discovered by the court reflects a fundamental
misunderstanding of the principles underlying good air quality
management since without dispersion there could be no industrial
activity. See supra note 6 and accompanying text.

15

traditional engineering practice” would be followed,
EPA’s definition had not been justified “independent of”
historical notions of adverse downwash conditions. App.
18a-28a.

8. “Nearby”—The court affirmed EPA’s definition of
‘nearby structures” but set aside EPA’s definition of
“nearby terrain obstacles,” holding that regardless of the
factual record on the downwash effects of very large ter-
rain obstacles, a rigid distance definition (e.g., “4% mile’’)
was both in keeping with the “strict command [of § 123]
that dispersion not be used to meet air quality standards,”
and would further the court’s assumed § 123 objective of
“reducing emissions.” App. 13a-18a. Although the lower
court noted that this interpretation reflected “an element
of arbitrariness,” App. 18a, it justified its reading of the
statute as not “‘utterly nonsensical.” App. 16a.

4. “Plume Impaction”—The lower court set aside
EPA’s plume impaction rule. While the court admitted
that its holding would “discriminate[] harshly against
utilities located in mountainous terrain” and that Con-
gress did not “focus on, and resolve” the problem re-
dressed by EPA in the rule, App. 37a, 38a, the court
concluded that its holding was “not utterly irrational”
because elimination of the plume impaction rule would
once again reduce dispersion credit. App. 39a; infra
pp. 24-25.

5. Requirements on Remand—Having dismantled
EPA’s § 123 regulatory program, the D.C. Circuit imposed
upon EPA, without briefing and argument, a six month
deadline ™ to promulgate a new § 123 program, and im-
posed upon the states a nine month deadline to implement
fully EPA’s revised program. In imposing the six month
deadline upon EPA, the court suggested that the rulemak-

%§ This schedule begins upon issuance of the mandate (App. 68a),
which has been stayed by the court pending the filing of this
Petition.

16

ing could be completed within this time by reverting to
the 1979 proposals, since “the flaws we have found in
EPA’s regulations were reversals of positions taken in the
1979 proposed regulations.” App. 68a-69a.

On November 25, 1983, Petitioners filed a timely Peti-
tion for Rehearing and Suggestion for Rehearing En
Bane. These were both denied on December 13, 1983.
App. 70a-78a.

REASONS FOR GRANTING THE WRIT

Section 123 of the Clean Air Act calls upon the states
to use “good engineering practice stack height” assump-
tions when establishing emission limitations under § 110
of the Act, and expressly delegates to EPA the authority
to adopt rules that define GEP for the states. After
lengthy rulemaking, EPA adopted GEP rules which de-
fine technical statutory terms in light of historical engi-
neering and regulatory practice. The court below re-
jected EPA’s rules without giving any deference what-
soever to the Agency’s construction of the statute, and
ordered EPA to require the states to adopt costly imple-
mentation plan revisions that will substantially compli-
cate the administration of the § 110 federal-state clean
air programs. In the process, the court transformed a
minor statutory provision designed to codify past engi-
neering practice into a comprehensive mandate for “re-
ducing emissions” based upon false air quality predictions.

This case, like other recent decisions of the court below,
exhibits the D.C. Circuit’s view that it is free to decide
whether or not any deference should be given to an agen-
cy’s interpretations of its enabling legislation. As Judge
Mikva asserted in a recent opinion, “the case law...
has not crystalized around a single doctrinal formulation
which captures the extent to which courts should defer to
agency interpretations of law.”** Judge Wright attrib-

%*NRDC v. EPA, No. 81-2001, slip op. at 18 (D.C. Cir. Janu-
ary 17, 1984).

17

utes this perceived lack of clarity to what he terms the
countervailing “gravational pulls of two opposing plati-
tudes,” one counseling deference to reasonable agency in-
terpretations and the other stating that the courts are
the final authorities on matters of statutory construction.”

Where technical terms are involved and the agency is
directed to define them through rulemaking, as is the case
here, decisions of this Court require that the agency’s
interpretations be given “legislative effect.”** If these
interpretations are not given legislative effect, they must
at least be deferred to if they are within the spectrum
of “reasonable” interpretations of the act.** In this case,
rather than giving “legislative effect,” or even “defer-
ence,” to EPA’s reasonable definitions of technical terms
used in § 123 of the Clean Air Act, the D.C. Circuit chose
a third standard of review and appointed itself the “final
authority” on the meaning and application of technical
statutory terms such as “GEP,” “excessive concentra-
tions,” and “nearby terrain obstacles.”

In sum, the D.C. Circuit, a court which is vested with
exclusive or concurrent jurisdiction to review the actions
of virtually every federal agency,* does not view itself as
being bound in any given case to apply the “deference”
standard of review; rather, the choice of “opposing plati-
tudes” is entirely for the court.“

87 Black Citizens for a Fair Media v. FCC, 719 F.2d 407, 428
(D.C. Cir. 1988) (Wright, J., dissenting).

58 Herweg v. Ray, 455 U.S. 265, 274-75 (1982); infra note 48
and accompanying text.

% Train v. NRDC, 421 U.S. 60, 75 (1975); infra note 49 and
accompanying text.

# See, e.g., CAA § 307(b) ; 28 U.S.C. § 2848 (1976) (Hobbs Act) ;

47 U.S.C. § 402(b) (1976) (Federal Communications Commission) ;
26 U.S.C. §9011(a) (1976) (Federal Election Commission).

41 See also Democratic Senatorial Campaign Comm. v. FEC, 660
F.2d 778, 776-77 (D.C. Cir. 1980) (“special deference to an agency’s

18

Certiorari should be granted in this case in order to
avoid substantial and unwarranted changes in the air
quality programs administered by the states under § 110
of the Clean Air Act, and to bring to a halt the un-
certainty created by the D.C. Circuit’s case-by-case ap-
proach to determining the standard it will apply when
reviewing agency interpretations of enabling legislation.

I. THE D.C. CIRCUIT’S REJECTION OF EPA’S RULE-
MAKING IMPLEMENTATION OF “GOOD ENGI-
NEERING PRACTICE” VIOLATES THE DECISION
OF THIS COURT IN HERWEG v. RAY THAT AN
AGENCY’S DEFINITION OF TECHNICAL TERMS
IN ITS ENABLING LEGISLATION MUST BE
GIVEN “LEGISLATIVE EFFECT”

Congress directed EPA in § 123 to “determine under
regulations promulgated by the Administrator” the mean-
ing of “GEP” stack height. CAA § 123(a) (1), (c), App.
110a, 1lla. Unlike other provisions of the Clean Air Act,
Congress made no attempt in § 128 to define key technical
terms such as “excessive concentrations” and “nearby
terrain obstacles.” Compare CAA § 169 (definitions of
terms used in “PSD” provisions). Rather, it simply re-
quired that EPA apply a precautionary standard (i.e.,
“to insure” against unacceptable downwash) when imple
menting the term “GEP.”

Pursuant to this specific delegation of authority to give
content to technical terms in § 123, EPA defined “GEP,”

interpretation of its governing statute is often appropriate...
[this agency interpretation] fails to merit the court’s substantial
deference”), rev'd, 454 U.S. 27, 81-82 (1981) (D.C. Circuit im-
properly addressed “deference” issue); National Wildlife Federa-
tion v. Gorsuch, 698 F.2d 156, 166-70 (D.C. Cir. 1982) (“the stand-
ard for deference to an agency’s interpretation of its governing
statute ‘defies generalized application’). Cf. Public Service Comm’n
v. Mid-Louisiana Gas Co., 108 S.Ct. 3024, 3088 (1988) (White,
Brennan, Marshall, and Blackmun, JJ., dissenting) (dispute as to
deference standard).

19

“excessive concentrations,” and “nearby terrain obstacles”
in a manner that both fulfills the statutory command “to
insure” against the occurrence of unacceptable down-
wash, and reconciles them with longstanding regulatory
and engineering experience. See supra pp. 5-7. To as-
sure that implementation of its definition of GEP would
not produce mindless discrimination against mountainous
or hilly terrain regions of the country, EPA adopted the
“plume impaction” rule. See infra pp. 22-23.

In similar cases in which Congress has made an “ex-
plicit delegation of authority [to an administrative
agency] to give substance to the meaning of” a statutory
term, this Court has applied a standard of review en-
titling the agency’s definition

“to more than mere deference or weight.” [Citations
omitted.] Because Congress has entrusted the pri-
mary responsibility of interpreting a statutory term
to the [agency] rather than to the courts, [t]his defi-
nition is entitled to “legislative effect.” *

Instead of giving EPA’s application of these technical
terms “legislative effect,” the D.C. Circuit, in each in-
stance, rejected EPA’s reasonable interpretation of the
statute and substituted different interpretations based
upon the court’s independent evaluation of congressional
intent. See supra pp. 14-15, infra p. 21. Certiorari is
necessary to clarify for the D.C. Circuit that this Court’s
decision in Herweg v. Ray, 455 U.S. 265 (1982), pro-
vides the appropriate standard of review in this case,
and to correct this intrusion by the court below into
EPA’s delegated powers.

42 See 47 Fed. Reg. at 5865, 5868-69, App. 84a, 99a-100a; GEP
Guidelines at 1-4, 20-23, 47-48, Appendix A.

48 Herweg v. Ray, 455 U.S. 265, 274-75 (1982) (emphasis added).
See also Schweiker v. Gray Panthers, 458 U.S. 34, 48-46 (1981);
Batterton v. Francis, 482 U.S. 416, 424-29 (1977); FEC v. Demo-
cratic Senatorial Campaign Comm., 454 U.S. 27, 87-89 (1981).

20

II. EPA’S INTERPRETATION OF TECHNICAL STATU-
TORY TERMS WAS “SUFFICIENTLY REASON-
ABLE” TO PRECLUDE THE D.C. CIRCUIT FROM
SUBSTITUTING ITS JUDGMENT FOR THAT OF
THE AGENCY

If for any reason this Court determines that the “leg-
islative effect” standard of Herweg v. Ray is not the ap-
plicable standard of review in this case, it is nonetheless
clear that under the decision of this Court in Union Elec-
tric Co. v. EPA, 427 U.S. 246, 256 (1976), the court
below was required to “accord[] great deference to the
Administrator’s construction of the... [Clean Air] Act,”
and that under Train v. NRDC, 421 U.S. 60, 75 (1975),
the court below should have accepted EPA constructions
of the Clean Air Act that were “reasonable.” For the
reasons discussed below, EPA’s rules were based on rea-
sonable constructions of the Act which should have been
given deference by the D.C. Circuit.

Section 123 gives EPA broad latitude to implement
“GEP” rules so long as its rules “insure” that unaccepta-
ble downwash will be avoided. See supra pp. 8-9. The
only other statutory constraint on the Agency’s rulemak-
ing authority to implement GEP is that credit for any
stack height above 2.5 times source height must be estab-
lished through case-by-case adjudication. CAA § 123(c),
App. illa. Thus, the “to insure” language of § 123 con-
templates a conservative rule which errs on the side of
sufficient credit but does not allow automatic credit
greater than 2.5 times source height.

EPA’s final rules were consistent with the commands
of the statute. In promulgating its rules, EPA con-
cluded, based upon statements in the legislative history,
that Congress in § 123 was generally codifying previous
judicial decisions and “affirming the 2% times standard
used by the Administrator.”** Therefore, EPA deter-

“H.R. Rep. No. 95-294 at 98, 91-92, 1977 Legis. Hist. 2560,
2558-59.

21

mined that both “GEP stack height” and “excessive con-
centrations” should be defined in terms of the traditional
2.5 rule, which had been shown through actual practice to
be a conservative measure of the minimum stack height
needed to avoid serious downwash.*

In holding that EPA is precluded frum adopting a
“conservative” GEP formula which provides absolute
protection against unacceptable downwash, App. 28a,
the court below failed to give any effect to the statutory
command that GEP “insure” against unacceptable down-
wash. Instead of looking at the language of the statute,
the court evaluated the acceptability of EPA’s interpre-
tation exclusively in reference to legislative history.
While the court itself described the legislative history as
sending out “sharply conflicting signals” regarding con-
gressional intent, App. 20a-21la, the court rejected EPA’s
construction of the Act on the basis of a single, am-
biguous passage in the Conference Report.“

In requiring EPA to abandon traditional historical
engineering practice and to adopt rules that “err on the

*. GEP Guidelines at 7, Appendix A; see App. 8a-10a. Cf. Corning
Glass Works v. Brennan, 417 U.S. 188, 201 (1974) (“where Congress
has used technical words or terms of art, ‘it [is] proper to explain
them by reference to the art or science to which they [are] appro-
priate’ ad | :

**In analyzing the legislative history, the court conceded that
there was evidence in the legislative history that Congress “probably
intended” to legislate the conservative, preexisting engineering
practice underlying terms such as “GEP” and “excessive concentra-
tions.” App. 8a-9a, 20a. However, the court gave controlling weight
to a single passage in the legislative history which the court charac-
terized as indicating “that the conference committee saw the possi-
bility of a distinction between its definition of the amount of down-
wash to be avoided and what engineers had been doing.” App. 23a
(emphasis added). As a result of this “possibility,” the lower court
concluded that Congress did in fact intend that the broad language
of § 123 would change radically the traditional GEP concept.

22

side of reducing stack height,” *’ the court below com-
pletely ignored the precautionary language of the statute
(“to insure’) and gave no weight whatsoever to EPA’s
reasoned but different view of the legislative history.** As
the decisions of this Court make clear, a reviewing court
is not free to overturn an agency’s interpretation of
technical statutory terms “simply because it may prefer
another interpretation of the statute,” or because “rea-
sonable men could differ as to their construction.” ”
Certiorari is necessary to correct the D.C. Circuit’s con-
fusion as to the appropriate standard of review, which
has led it to rewrite a complex, technical statutory
provision.

Ill. THE D.C. CIRCUIT EXCEEDED ITS AUTHORITY
AS A REVIEWING COURT BY REQUIRING EPA
TO APPLY ITS GEP RULES TO SOURCES IN
RUGGED TERRAIN IN A MANNER NEVER CON-
SIDERED BY CONGRESS

During the rulemaking, EPA interpreted § 123 to al-
low the development of a rule which could be used by
states with hilly or mountainous terrain to determine
GEP emission limitations. This rule makes clear that
such states are not required to revise their § 110 imple
mentation plans based upon GEP modeling results show-
ing “plume impaction” (a phenomenon that can only
occur in rugged terrain areas) when such plume impac-
tion cannot, and does not, occur in reality. Thus, while
Congress in § 123 had called for states to base emission
limitations upon false stack height assumptions, see
supra p. 7, EPA concluded that Congress had not or-

47 App. 28a.
4847 Fed. Reg. at 5865, App. 84a-87a; GEP Guidelines at 1-4.

** INS v. Wang, 450 U.S. 189, 144 (1981). See Beal v. Doe, 432
U.S. 488, 447 (1977); Investment Company Institute v. Camp, 401
U.S. 617, 626-27 (1971).

23

dered the states to apply a second false assumption—
i.e, assuming that stack height is lower than terrain
height when this is not the true relationship. It is the use
of this second false assumption which results in predic-
tions of theoretical “plume impaction.” ”

If this second false assumption were used in atmos-
pheric models developed for sources in rugged terrain,
states would be required to set GEP emission limitations
that would be more stringent by a factor of ten than
the GEP limits imposed upon identical sources in flat
terrain. See supra note 22 and accompanying text; App.
38a-39a. In order to bring GEP emission limits for
rugged terrain sources more into line with those calculated
in flat terrain, EPA developed a rule which, as the lower
court correctly observed, would require sources in moun-
tainous regions to meet GEP emission limitations that
are as restrictive or more restrictive than those cal-
culated in flat terrain." In construing the statute to
eliminate irrational discrimination against rugged ter-
rain areas while at the same time assuring enforcement
of stringent GEP-based emission limits, EPA furthered
the specific objectives of §123 and the general objec-
tives of the Act to protect the “public health and wel-
fare” in a way that also promotes the “productive ca-
pacity” of the nation.

50 See GEP Guidelines at 4; 47 Fed. Reg. at 5866-67, App. 9la-92a.

5! App. 32a n.4. Under the “plume impaction” rule adopted by EPA
to avoid the use of this second false assumption, sources in moun-
tainous terrain would be allowed to assume that terrain height was
equal to GEP stack height. In atmospheric modeling, this terrain
height adjustment would be the only adjustment made for such
sources. Emission limitations would then be calculated using GEP
formula stack height, and these GEP emission limitations would
govern unless the use of actual stack height above GEP height
would result in a more stringent emission limitation due to actual
plume impaction. GEP Guidelines at 4.

52 CAA § 101(b) (1), App. 106a. Requiring states to impose emis-
sion limitations based upon false plume impaction would require

24

In reviewing the “plume impaction” rule, the court
below conceded that Congress, in enacting § 123, did not
“focus on, and resolve” the question of whether GEP
emission limitations should be based upon false plume
impaction. App. 37a. Notwithstanding this congressional
silence and notwithstanding the fact that EPA’s plume
impaction rule would require equal or more stringent
GEP emission limitations for rugged terrain sources, the
court below reversed the rule. The court’s holding is
predicated on the assumption that emissions from sources
in mountainous regions would somehow be dispersed over
a wider territory, and that such “wider dispersion”
would violate congressional intent. App. 29a. These as-
sumptions are wrong.

Since both § 123 and the plume impaction rule affect
only assumed and not actual stack height, the plume im-
paction rule will have no effect whatsoever on the geo-
graphical extent of dispersion from existing stacks in
rugged terrain. See CAA §123(c), App. 1llla. With
respect to new stacks, the plume impaction rule ensures
that stacks in rugged terrain will always be assumed to
disperse pollution less widely than similar stacks in flat
terrain. As to congressional intent, the rule assures
that sources in rugged terrain will meet stringent GEP

sources located in rugged terrain to expend billions of dollars more
on controls than their flat terrain counterparts, even though these
sources emit at much lower levels than sources in flat terrain. Com-
ments of the Utility Air Regulatory Group (June 16, 1981) at 37-
88; Comments of the Southern Company (May 29, 1981) at 1-2.
These large costs would redirect further industrial growth towards
flat terrain areas, where population centers are typically located,
and where sources are able to emit at higher levels and obtain more
dispersion than if they were to locate in rugged terrain. See Com-
ments of the Utility Air Regulatory Group (June 16, 1981) at 46-47;
Comments of Sun Company (Nov. 2, 1981) at 1-2; Comments of
Gulf States Utilities (March 8, 1979) at 1-2.

53 Since emissions at terrain height (the atmospheric modeling
adjustment required by the plume impaction rule) reach the ground
more rapidly than emissions released above terrain (the assump-

25

limi , thus fulfilling the congressional objective that
sources with taller-than-GEP stacks gain no emissions
control advantage due to increased dispersion. See supra
pp. 7-8.

To justify its holding that EPA must apply § 123 in
a way which “discriminates harshly” against states with
mountains and hills, App. 38a, the court once again
resorted to the legislative history of the Act. This time
it focused on congressional testimony relating to the PSD
provisiuns of the Act which the court believed disclosed an
“indifference” by Congress to such discrimination.“ As
the court itself concedes, however, none of this legislative
history supports the conclusion that Congress actually
“focuse[d] on” or “resolve[d]” the question whether the
states must base § 123 emissions limitations on false
predictions of plume impaction. App. 37a.

In view of Congress’ silence, it was incumbent upon
EPA in exercising its § 123 rulemaking authority to re-
solve the regional discrimination problem posed by false
plume impaction predictions in a manner consistent with
the general and specific purposes of the Act. EPA

tion used for flat terrain souces), emissions of sources in rugged
terrain will always be assumed to be dispersed less widely than
comparable emissions from sources in flat terrain. Wher actual
stack height assumptions govern under the plume impaction rule,
the geographical extent of the dispersion will be even less, since
emission limitations will be based upon a concentrated plume inter-
acting with nearby terrain. See GEP Guidelines at 4, 51.

% The court cited legislative history counseling “more careful
siting” of new industrial facilities in rugged terrain as reflecting
this curious congressional bias against hills and mountains. App.
35a-36a, 38a. All of this legislative history, however, is irrelevant to
§ 128 since it concerns the siting of new sources which have flexi-
bility to choose whether or not to locate in rugged terrain. Section
128, by contrast, will immediately affect many existing sources
already located in rugged terrain.

55 See Rose v. Lundy, 455 U.S. 509, 517 (1982) (where it appears
that “Congress never thought of the problem .. . the policies under-
lying the statutory provision [must be analyzed] to determine its
proper scope”) ; Sea-Land Service, Inc. v. Kreps, 566 F.2d 768, 778
(D.C. Cir. 1977) (where there is “no direct statutory mandate, the

26

did this. See supra p. 23. Its decision was reasonable,
particularly in light of the very legislative history re-
lied upon by the court. That legislative history showed
that when regional discrimination was brought to Con-
gress’ attention in the context of problems created by
the PSD provisions of the Act, Congress responded, as
EPA did here, by fashioning a provision ameliorating
the discrimination.”

Certiorari is required in this case to confirm that, in
the face of Congressional silence, EPA had authority to
construe the Clean Air Act in a manner which avoids
absurd and irrational results,°’ while assuring that the
statutory objectives are attained. EPA’s plume impaction
rule was within EPA’s discretion under the statute and
the court below exceeded its authority in rejecting that
rule."*

agency charged with administering the statute muat.. . look to the
purposes underlying the particular provision and the Act in
general’’).

5¢ The court below incorrectly concluded that “[no] relief for
mountainous areas was enacted in response” to the statements it
cites. App. 36a. The PSD provisions, as enacted, include a variance
provision providing for more lenient PSD treatment of sources in
rugged terrain. See CAA § 165(d) (2) (D) (iii)-(iv); 1977 Legis.
Hist. 318, 351, 438, 533.

5? American Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982).
See also Citizens to Save Spencer County v. EPA, 600 F.2d 844, 891
(D.C. Cir. 1979) (Leventhal, J., concurring): “When an agency
shows good sense, ‘{[c]ourts are loathe to say that good sense is not
good law.’”

58 Even if the D.C. Circuit did not agree with the Agency’s
rationale for the plume impaction rule, it should have simply re-
manded the rule to the Agency for reconsideration rather than re-
versing it based upon the court’s independent factua! assumptions.
See Public Service Comm’n v. Mid-Louisiana Gas Co., 108 S.Ct. 3024,
8088 (1983); South Prairie Construction Co. v. Operating Engi-
neers, 425 U.S. 800, 805-06 (1976) ; FCC v. Pottsville Broadcasting
Co., 8309 U.S. 184, 145 (1940).

27

IV. THE D.C. CIRCUIT’S DECISION WILL SERIOUSLY
RESTRICT ECONOMIC GROWTH IN MANY AREAS
OF THE COUNTRY AND WILL GREATLY COMPLI-
CATE ADMINISTRATION OF THIS NATION’S SYS-
TEM OF AIR QUALITY REGULATION

In this case, the D.C. Circuit has overturned EPA’s
implementation of § 123 in favor of a different approach
advocated by environmental groups. The court’s decision
rejects the ground rules which, since 1978, have guided
the states in developing emission limitations under § 110
of the Act.

The new ground rules called for by the D.C. Circuit
will require all fifty states to adopt comprehensive revi-
sions to their state implementation plans. Emissions re-
ductions brought about by these revisions will not be
based upon real threats to the public health and welfare,
but rather upon theoretical local violations of ambient
requirements that are predicted to occur when false stack
height assumptions are used.

Under the required state implementation plan revi-
sions, existing industrial facilities face the prospect of
billions of dollars in additional costs. See supra pp. 10-
11, 23 n.52. As to new source construction, the decision
could require the states to develop costly emission offset
programs designed to avoid theoretical, not actual, viola-
tions of ambient standards.” If offsets could not be ob-
tained, no growth could take place.

°° Under CAA §§ 110 and 168, industrial growth can take place
only if it is demonstrated that no violations of ambient standards
and PSD increments will occur. Under the ambient standard defini-
tion of “excessive concentrations” suggested by the D.C. Circuit,
see App. 19a-20a, 24a, 27a, a source’s stack height credit would be
set to predict ambient concentretions just below the ambient stand-
ards. This definition of “excessive concentrations” would thus re-
quire emissions offsets before any further construction could take
place, in order to avoid theoretically predicting violations of ambient
standards or PSD increments.

28

Regarding the administration of § 110 by the states,
the court’s decision will further complicate already overly
complex state regulatory programs. By expanding the
use of false stack height assumptions, the states would
be forced to refocus their air pollution control on non-
existent pollution concentrations predicted using mathe-
matical models. Whenever mathematical models are
changed, new emission limitations would have to be es-
tablished.” Real air quality—i.e., the air that people
actually breathe—would cease to govern, or even affect,
the stringency of emission limitations and would be
largely irrelevant to administration of the Act.”

In sum, the D.C. Circuit in this case mandates EPA
regulatory changes that would transform the § 110 regu-
latory program from one that is largely directed at ac-
tual pollution concentrations to one directed at abating
wholly theoretical violations of public health and welfare
standards. The D.C. Circuit has thus set in motion a

* Since § 128 focuses on theoretical rather than actual ambient
concentrations, it can be implemented only through mathematical
dispersion models. Under § 320(a) of the Act, EPA is required to
conduct a proceeding at least every three years to revise air quality
models in light of the most recent scientific information. Every time
these models are revised they will predict different ambient concen-
trations. As a result, by making false stack height assumptions the
centerpiece of clean air regulation, the D.C. Circuit will require the
states to engage in a never-ending process of implementation plan
revisions.

*: The New York Department of Environmental Conservation
recently requested EPA to seek further review of the “excessive
concentrations” portion of the D.C. Circuit’s decision since it will
open a “Pandora’s box” of false regulatory assumptions, imposing
requirements which “most states do not have the expertise or the
resources to apply.” Letter from New York Department of Environ-
mental] Conservation to EPA at 2 (December 27, 1988). The cur-
rent rulemaking record shows that states would have had difficulty
coping with the reviews required under the 1979 proposal. See, ¢.g.,
46 Fed. Reg. 49821 (1981); Comments of New York Dep't of En-
vironmental Conservation (March 6, 1979) at 2; Comments of
Texas Air Control Board (March 18, 1979) at 2-3.

29

process that will lead EPA to require the states to im-
pose many emission limitations that are more stringent
than necessary to attain ambient standards, a result re-
jected in Train v. NRDC, 421 U.S. 60 (1975). Equally
important, the court below has required enormously
costly compliance measures even though the public health
is not in fact threatened, a result which, if allowed to
stand, should lead this Court to reconsider its decision in
Union Electric, 427 U.S. 246, 258-59 (1976). Certiorari
is necessary in this case to review this D.C. Circuit deci-
sion which threatens to restructure in a fundamental
way this nation’s system of air quality regulation.

CONCLUSION

For the reasons stated, this petition for certiorari
should be granted.
Respectfully submitted,

HENRY V. NICKEL
(Counsel of Record)

F. WILLIAM BROWNELL

MICHELE POLLAK
HUNTON & WILLIAMS
P.O. Box 19280
2000 Pennsylvania Ave., N.W.
Washington, D.C. 20086
(202/955-1500)

Counsel for Petitioners
Alabama Power Co., et al.

February 28, 1984

SUPPLEMENTAL
APPENDIX

A-1

PARENT COMPANIES, SUBSIDIARIES AND
AFFILIATES OF INDIVIDUAL ELECTRIC UTILITIES

Alabama Power Company
(subsidiary of The Southern Company)

subsidiary :
Alabama Property Company
affiliate :
Southern Electric Generating Company

Appalachian Power Company
(subsidiary of American Electric Power Company,
Inc. )
subsidiaries :

Central Appalachian Coal Company
Central Coal Company
Central Operating Company
Kanawha Valley Power Company
Southern Appalachian Coal Company
West Virginia Power Company
Cedar Coal Company

Baltimore Gas and Electric Company
subsidiaries :
Resource and Property Management, Inc.
Safe Harbor Water Power Corp.
Boston Edison Company
Carolina Power & Light Company
subsidiaries :
Capitan Corporation
Leslie Coal Mining Company

McInnes Coal Mining Company
Carolina Power & Light Finance N.V.

affiliate :

Carolinas-Virginia Nuclear Power Associates,
Inc.

A-2

Central and South West Corporation
subsidiaries :
Central Power and Light Company
Public Service Company of Oklahoma
subsidiary :
Ash Creek Mining Co.

Transok Pipe Line Co.
Southwestern Electric Power Company

subsidiary :

Southwest Arkansas Utilities Corp.

affiliate :
Arklahoma Corp.

West Texas Utilities Company
Central and South West Services, Inc.
Central and South West Fuels, Inc.
CSW Financial Inc.

Central Hudson Gas and Electric Corporation
subsidiaries :
Phoenix Development Company, Inc.
Greene Point Development Corporation

Central Hudson Enterprises Corp.
CH Resources, Inc.

Central Illinois Light Company
subsidiaries :
CILCO Exploration and Dev. Co.
CILCO Energy Corporation
Central Illinois Public Service Co.
subsidiary :
Electric Energy, Inc.

A-3
The Cincinnati Gas and Electric Company
subsidiaries :
Union Light, Heat and Power Co.
West Harrison Gas & Electric Co.
Miami Power Corp.
Lawrenceburg Gas Co.
Lawrenceburg Gas Transmission Corp.

Tri-State Improvement Co.
YGK Ine.

The Cleveland Electric Illuminating Co.
subsidiaries :
The Ceico Co.
CCO Co.

Columbus and Southern Ohio Electric Company
(subsidiary of American Electric Power Company,
Inc. )

subsidiaries :
Colomet, Inc.
Simco, Inc.

Commonwealth Edison Company

subsidiaries :
Commonwealth Edison Co. of Indiana, Inc.
Chicago & Illinois Midland Railway Co.
Cotter Corp.
Commonwealth Research Corp.
Edison Development Canada Inc.

Edison Development Co.
Concomber, Ltd.

Consolidated Edison Company of New York, Inc.
Consumers Power Company
subsidiaries :

Michigan Gas Storage Company
Northern Michigan Exploration Company

A-4

Michigan Utility Collection Service Co., Inc.
Plateau Resources Limited

Utility Systems, Inc.
Consumers Power Finance N.V.

The Dayton Power and Light Company
subsidiaries :
DP&L Community Urban Redevelopment Corp.

Miami Valley Development Company
ZMS Ine.

Delmarva Power & Light Company
subsidiaries :
Delmarva Energy Co.
Delmarva Industries, Inc.

The Detroit Edison Company
subsidiaries :
Edison Illuminating Company
Midwest Energy Resources Company
St. Clair Energy Corp.

Washtenaw Energy Corp.
Utility Technical Services, Inc.

Duke Power Company
subsidiaries :
Mill-Power Supply Co.
Crescent Land & Timber Corp.

subsidiaries :
Millwood Co.
Wateree Power Co.

Eastover Land Co.

Eastover Mining Co.

Western Fuel, Inc.

Wateree Power Co.

Catawba Manufacturing and Electric Power Co.

A-5

Western Carolina Power Co.

Caldwell Power Co.

Southern Power Co.

Greenville Gas and Electric Light and Power
Co.

Duke Power Overseas Finance N.V.

Florida Power Corporation
(subsidiary of Florida Progress Corporation)

Florida Power & Light Company
subsidiaries:
Fuel Supply Service, Inc.

Land Resources Investment Company
W. Flagler Investment Corp.

Georgia Power Company
(subsidiary of The Southern Company)

subsidiary :
Piedmont Forrest Co.
affiliate :
Southern Electric Generating Company

Gulf Power Company
(subsidiary of The Southern Company)

Gulf States Utilities Company
subsidiary :
Varibus Corporation

Houston Lighting & Power Company
(controlled by Houston Industries, Inc.)

Illinois Power Company
subsidiaries :
IP Ine.

IPF Co. N.V.
Illinois Power Fuel Company

“*!
.

A-6
affiliate :
Electric Energy, Inc.

Indiana & Michigan Electric Company
(subsidiary of American Electric Power Company,
Inc. )

subsidiaries :
Price River Coal Company
Blackhawk Coal Company

Indianapolis Power & Light Company
Iowa-Illinois Gas and Electric Company
subsidiary :
Iowa-Illinois Energy Co.
Iowa Public Service Company
subsidiaries :
Cimmred, Inc.
Energy Development Company
Energy Reserves, Inc.
Centennial Coal, Inc.

Midwest Energy Co.
Midwest Energy Services Co.

Kansas City Power and Light Company

Kentucky Power Company
(subsidiary of American Electric Power Company,
Inc.)

Kentucky Utilities Company
subsidiary :
Old Dominion Power Company
Long Island Lighting Company
subsidiary :
LILCO Energy Systems, Inc.

A-7

Madison Gas and Electric Company
subsidiaries :
MG&E NUCLEAR FUEL INC.

MAGAEL INC.
MAGAEL Material Resources, Inc.

Arkansas Power & Light Company
(subsidiary of Middle South Utilities, Inc.)
subsidiary :
Associated Natural Gas Co.
affiliates:
System Fuels, Inc.
The Arklahoma Corp.

Louisiana Power & Light Company
(subsidiary of Middle South Utilities, Inc.)

Mississippi Power & Light Company
‘subsidiary of Middle South Utilities, Inc.)
subsidiaries :
The Light, Heat & Water Company of Jackson*

Jackson Gas Light Company*
Jackson Light & Traction Company*

affiliate:
Systems Fuels, Inc.

New Orleans Public Service, Inc.
(subsidiary of Middle South Utilities, Inc.)

subsidiary :
Systems Fuels, Inc.

Mississippi Power Company
(subsidiary of The Southern Company)

* Inactive

A-8

Monongahela Power Company
(subsidiary of Allegheny Power System, Inc.)
subsidiaries :
Allegheny Generating Co.
Allegheny Pittsburgh Coal Company*

New England Power Company
(subsidiary of New England Electric System)

New York State Electric & Gas Corporation

Northeast Utilities
subsidiaries :
Connecticut Light and Power Company
subsidiaries :

Shelton Canal Co.
Research Park, Inc.
Connecticut Gas Co.
Electric Power, Inc.*
Connecticut Transmission Corp.*
City & Suburban Electric Gas Co.
The Nutmeg Power Company
The Mohawk Gas Co.*
The Connecticut Steam Co.*

Northeast Nuclear Energy Company
Quinnehtuk Company

Rocky River Realty Company
Western Massachusetts Electric Co.
Northeast Utilities Service Co.

Northern Indiana Public Service Company
subsidiaries :
Shore Line Shops, Incorporated
NIPSCO Exploration Co.

NIPSCO Fuel Co., Inc.
Northern Indiana Public Service Finance N.V. |

* Inactive

Ohio Edison Company
subsidiaries :
Pennsylvania Power Company
Ohio Edison Finance N.A.

Ohio Power Company
(subsidiary of American Electric Power Company,
Inc. )
subsidiaries :

Central Coal Company
Central Ohio Coal Company
Central Operating Company
Southern Ohio Coal Company
Windsor Power House Coal Company
Beech Bottom Power Co., Inc.
Cardinal Operating Co.

Ohio Valley Electric Corporation
subsidiary :
Indiana-Kentucky Electric Corp.
Oklahoma Gas and Electric Company
subsidiary :
Arklahoma Corporation
Pennsylvania Power and Light Co.
subsidiaries :
Pennsylvania Mines Corp.
subsidiaries :
Tunnelton Mining Co.
Greene Manor Coal Co.

Rushton Mining Co.
Greene Hill Coal Co.

Service Development Company
Safe Harbor Water Power Corp.
Realty Company of Pennsylvania

A-10
subsidiaries :
BDW Corp.
LCA Leasing Corp.
Lady Jane Colleries, Inc.

Interstate Energy Co.
The Arcadia Company, Inc.

The Potomac Edison Company
(subsidiary of Allegheny Power System, Inc.)

subsidiaries :
Allegheny Generating Company
Allegheny Pittsburgh Coal Company *

Potomac Electric Power Company
Subsidiary :
Potomac Electric Finance N.V.
Public Service Company of Indiana, Inc.
Public Service Electric and Gas Company
subsidiaries :
Energy Development Corp.
subsidiary :
Gasdel Pipeline System, Inc.

PSE&G Research Corp.

Energy Terminal Services Corp.
Energy Pipeline Corp.

PSE&G Overseas Finance N.V.

Rochester Gas & Electric Corporation
Salt River Project
Southern California Edison Company
subsidiarizs :
Associated Southern Investment Co. (ASIC)
Electric Systems Company

* Inactive

A-11

Energy Services Inc.

Calabasas Park Company (CPC)

Calabasas Communications Company
Southern Surplus Realty Company

Mono Power Company

Bear Creek Uranium Company

Mono Green Mountain Company

Southern California Edison Finance Co. N.V.
Palo Verde Uranium Venture

Tampa Electric Company
(controlled by TECO Energy, Inc.)

Texas Utilities Generating Company
(subsidiary of Texas Utilities Company)

Toledo Edison Company
Tucson Electric Power Company
subsidiary :
Alamito Coal Co.
Escavada Leasing Co.
Valencia Energy Co.
Union Electric Company
subsidiaries :
Union Colliery Company
Missouri Power & Light Company
Missouri Edison Company
Missouri Utilities Company
affiliate :
Electric Energy, Inc.
Virginia Electric and Power Company
(controlled by Dominion Resources, Inc.)
subsidiaries :
Laurel Run Mining Company
Virginia Nuclear, Inc.

A-12

West Penn Power Company
(subsidiary of Allegheny Power System, Inc.)

subsidiaries :
Allegheny Generating Company
Allegheny Pittsburgh Coal Company*

Beech Bottom Power Company, Inc.
West Virginia Power & Transmission Co.

subsidiary :
West Penn West Virginia Water
Power Company
Wisconsin Electric Power Company
subsidiaries :
Wisconsin Natural Gas Company
Badger Service Company
Wisconsin Power and Light Company
subsidiaries :
South Beloit Water, Gas and Electric Co.
Wisconsin Power and Light Nuclear Fuel, Inc.

NUFUS Resources, Inc.
Windworks, Inc.

affiliate:
Wisconsin River Power Company
Wisconsin Public Service Corporation
affiliates :
Wisconsin River Power Company

Wisconsin Valley Improvement Company
Delores Bench General Partner, Inc.

* Inactive

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1488%3A01. Public record. Not legal advice.