Opposition — Alabama Power Co. v. Sierra Club

[Office - Supreme Court, U.S.

FILED

MAY 25 1984

No, 83-1429

'

}

IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

ALABAMA Power Co., et al..

Petitioners,

We

SIERRA CLUB,

NATURAL RESOURCES DEFENSE COUNCIL,

COMMONWEALTH OF PENNSYLVANIA,

STATE OF NEW YORK,

COMMONWEALTH OF MASSACHUSETTS,

STATE OF VERMONT,

STATE OF RHODE ISLAND,

AND STATE OF NEW HAMPSHIRE,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for

the District of Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

Howarbp I. Fox RICHARD E. AYRES

Sierra Club Legal Defense Natural Resources

Fund Defense Council

1424 K Street, N.W. 1725 I Street, N.W.

Washington, DC 20005 Washington, DC 20006

(202) 347-1770 ‘ (202) 223-8210

Counsel of Record for Counsel for Respondent

Respondents Natural Resources

Defense Council

May 25, 1984

QUESTIONS PRESENTED

Whether the D.C. Circuit, in reviewing regulations pro-

mulgated by the Environmental Protection Agency pursuant

to $123 of the Clean Air Act, 42 U.S.C. §7423, properly

concluded that the agency erred by

1. Implying an unauthorized exemption to the compre-

hensive prohibition on dispersion techniques in §123(a) of the

Act;

2. Failing to implement the statutory term ‘‘nearby terrain

obstacles’’ (§123(c));

3. Defining the statutory term ‘‘excessive concentra-

tions’’ (§123(c)) so as to allow evasion of pollution controls

through tall smokestacks that serve no public health or welfare

goals;

4. Defining the statutory term ‘‘good engineering prac-

tice’’ (§123(aX1) & (c)) in a biased manner that favors taller

smokestacks and increased pollution; and

5. Adopting a twenty-two month timetable for imple-

mentation of its regulations, in disregard of the explicit nine-

month deadline in §406(d)(2) of the Act, 42 U.S.C. §7401

note.

TABLE OF CONTENTS

QUESTIONS PRESENTED 2... ccccccccscccccccess

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STATUTE AND REGULATIONS INVOLVED.....

STATEMENT OF THE CASE .........:.cceeseess

REASONS FOR DENYING THE PETITION .......

1. The Social and Economic Impacts of the D.C.

Circuit's Decision Are Limited ................

2. This Court Has Declined To Review Dispersion

Techniques Cases More Important Than the Pres-

GF TI anc occde bcebbedebavbknwees ceebdosece

3. The D.C Circuit Properly Deferred to EPA .....

4. The D.C. Circuit Correctly Determined that Por-

tions of EPA's Regulations Are Inconsistent with

the Clean Air Act and Unsupported by the Ad-

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iv

TABLE OF AUTHORITIES

Page

CASES

Batterton v. Francis, 432 U.S. 416 (1977) ........... 10

Big Rivers Electric Corp. v. EPA, 523 F.2d 16 (6th Cir.

1975), cert. denied, 425 U.S. 934 (1976) ........... 3,9

FEC v. Democratic Senatorial Campaign Committee,

BD UE. A Aintndkt vias etdibs abet vdavescs il

Herweg v. Ray, 455 U.S. 265 (1982) .........60000- 10

Kennecott Copper Corp. v. EPA, 526 F.2d 1149 (9th

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

NRDC v. EPA, 489 F.2d 390 (Sth Cir. 1974), rev'd on

other issues sub nom. Train v. NRDC, 421 U.S.

SE Sciediis kactndhdettnh dba op ce'vocecos vce 3,9

NRDC v. EPA, 529 F.2d 755 (Sth Cir. 1976) ......... 3

Schweiker v. Gray Panthers, 453 U.S. 34 (1981) ..... 10

Sierra Club v. Gorsuch, Civil No. 81-0094 (D.D.C.) .. 5

STATUTES

ns ah. hth ceca cctsetbasecs 2

Clean Air Act, $109, 42 U.S.C. §7409............. 2

Clean Air Act, §110, 42 U.S.C. §7410............. 2

Clean Air Act, $123, 42 U.S.C. §7423 .......... passim

Clean Air Act, $165, 42 U.S.C. §7475............. 7,13

Clean Air Act, $173, 42 U.S.C. §7503............. 7

Clean Air Act, $302, 42 U.S.C. $7602............. 5

Clean Air Act, §307, 42 U.S.C. §7607............. 5

Clean Air Act, $406, 42 U.S.C. §7401 note....... 2,5,14

REGULATIONS AND FEDERAL REGISTER NOTICES

SET, SHUN G0 BOB. <6 oc cc cctcccdassscesces 7

47 Fed. Reg. 5864 (1982) ..............645. 2,5,12,13,14

46 Fed. Reg. 49814 (1981)... .. 2... cece ce enee 2,6,8,14

44 Fed. Reg. 2608 (1979) .. 20... occ c cnn cneee 2,4,5

41 Fed. Reg. 7450 (1976) .......2ccccccecccccecss 3

LacisLaTive History

S. Rep. No. 127, 95th Cong., Ist Sess. (1977)...... 5

H. Rep. No. 294, 95th Cong., Ist Sess. (1977) ..... 2,3,

11,13

In THE

Supreme Court of the Hnited States

Octoser Term, 1983

No. 83-1429

ALABAMA Power Co., ef all.,

Petitioners,

Vv.

Srerra CLuB,

NATURAL Resources Derense COUNCIL,

COMMONWEALTH OF PENNSYLVANIA,

STATE OF New York,

COMMONWEALTH OF MASSACHUSETTS,

STATE OF VERMONT,

STATE OF RHODE ISLAND,

AND STATE OF NEW HAMPSHIRE,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

5

OPINION BELOW |

The opinion of the court of appeals dated October 11, ,

manta Fach apntiingas 88.75

: poh ates ee new

will be cited as

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2

JURISDICTION

The jurisdiction of the Court lies pursuant to 28 U.S.C.

$1254(1).

STATUTE AND REGULATIONS INVOLVED

The provisions of the Clean Air Act pertinent to this case

are $123, 42 U.S.C. $7423 (Pet. App. at 110a), and §406(d)(2),

42 U.S.C. $7401 note (Pet. App. at 66a). The regulations

reviewed by the court below (Pet. App. at 80a) were published

at 47 Fed. Reg. 5864 (February 8, 1982). The proposed

regulations that preceded these final regulations were pub-

lished at 46 Fed. Reg. 49814 (October 7, 1981), and 44 Fed.

Reg. 2608 (January 12, 1979).

STATEMENT OF THE CASE

This case poses the question whether a handful of electric

utilities and metal smelters may persist in their longstanding

refusal to comply with air pollution control requirements that

have been in effect since 1970.

In that year Congress enacted an extensive overhaul of

the Clean Air Act (‘“CAA"’) that directed the Environmental

Protection Agency to establish ‘‘national ambient air quality

standards"’. CAA §10%a), 42 U.S.C. §740%a). These stand-

ards were to specify maximum levels of pollution, exceedance

of which would threaten the health and welfare of the public.

CAA $10%b), 42 U.S.C. $740%b). Congress intended that

$110(aX2KB), 42 U.S.C. §7410(aX2KB) (directing states to

adopt, and submit to EPA for approval, enforceable ‘‘emission

limitations’’).

While most polluters complied with Congress's mandate,

3

Because these ‘‘tall stacks"’ leave total emissions unchanged,

any decrease they produce in pollution concentrations near

the emitting facility is bought at the price of increased pollution

elsewhere. House Report at 84-85, U.S. Code Cong. & Ad.

News at 1162-63.

In the years following 1970 EPA adopted a policy of

allowing industry to substitute tall stacks for emissions re-

duction. This policy was struck down as inconsistent with the

1970 Act in Natural Resources Defense Council v. EPA, 489

F.2d 390 (Sth Cir. 1974), rev'd on other issues sub nom. Train

v. NRDC, 421 U.S. 60 (1975); accord, Kennecott Copper

Corp. v. Train, 526 F.2d 1149 (9th Cir. 1975), cert. denied,

425 U.S. 935 (1976); Big Rivers Electric Corp. v. EPA, 523

F.2d 16 (6th Cir. 1975), cert. denied, 425 U.S. 934 (1976).

EPA initially took no action to implement these decisions.

Finally, threatened with a contempt proceeding, NRDC v.

EPA, 529 F.2d 755 (Sth Cir. 1976), the agency issued a

nonregulatory ‘Stack Height Increase Guideline’’. 41 Fed.

Reg. 7450 (1976).

In the deliberations on the 1977 Amendments to the

Clean Air Act, EPA's guideline was criticized strongly in

Congress:

The guidelines are considerably less protective

of the environment than the courts’ decisions require.

Far from prohibiting the construction of tall

stacks or the use of intermittent controls, the guide-

lines provide that once minimal emission control

requirements are met, polluters are encouraged to

substitute unlimited stack height for any further

control of emissions.

123 Cong. Rec. 18027 (1977) (remarks of Senator Muskie).

Faced with these deficiencies, and with alarming evidence

4

While Congress was aware of the Agency's Stack

Heights Increase Guideline, it rejected much of the

Guideline in the 1977 Amendments and adopted new

requirements limiting use of dispersion technology

to a greater extent than either the Guideline or the

court decisions.

44 Fed. Reg. 2608, 2609 (1979).

Section 123 states flatly that tall stacks are not an

acceptable strategy for complying with the Clean Air Act.

The method Congress chose to implement this prohibition is

of paramount importance to the present case. Since the public

is harmed by the increased pollution a tall stack allows, rather

than by the stack itself, §123 focusses solely on pollution

levels. Congress specifically left industry free to construct

stacks as tall as it chooses, $123(c), but provided that excessive

For purposes of $123, stack height is to be deemed

excessive if it is greater than * ‘good engineering practice”’

| Downwash occurs wh) turbulent an currents sweep a facility's

on tall stacks and other dispersion techniques. CAA

$406(d(2B), 42 U.S.C. §7401 note.’

Four years after expiration of the congressionally pre-

scribed deadline, under compulsion of a court-ordered time-

table,* EPA promulgated regulations pursuant to §123. 47

Fed. Reg. 5864 (1982). On virtually all key issues these rules

reversed positions taken by the agency in proposed rules

issued in January 1979. 44 Fed. Reg. 2608. Respondents Sierra

Club, Natural Resources Defense Council and Commonwealth

of Pennsylvania sought review of these regulations in the D.C.

Circuit pursuant to §307(bX1) of the Act, 42 U.S.C. §7607(bX 1).

Joining their challenge were the States of New Hampshire,

New York, Rhode Island, and Vermont, and the Common-

wealth of Massachusetts.

On October 11, 1983 the D.C. Circuit issued an opinion

that rejected some of petitioners’ challenges and accepted

others. Specifically, the court affirmed two provisions of

EPA's regulations, reversed two provisions as beyond the

agency's statutory authority,’ and remanded six provisions to

the agency for further action.* Pet. App. at 69a. It is this

decision that is challenged in the present petition for certiorari,

’ See also S.Rep. No. 127, 95th Cong., ist Sess. 95 (1977):

EPA will be expected to review existing State implementation

plans and require revision im any that depend upon dispersion

techniques rather than continuous controls. Where necessary State

implementation plans will have to be modified.

This passage appears in the legislative history of §302(k) of the Act, which

reinforces the mandate of $123 by defining ‘emission limitation’ to include

caly continuous methods of emission control. 42 U.S.C. §7602{k). See 44

Fed. Reg. at 2609; 47 Fed. Reg. 5864, 5864 a.1 (1982).

* Sierra Club v. Gorsuch, Civil No. 81-0094 (D.D.C.).

* One of these provisions was not a substantive clement of EPA's

regulatory program. but rather a timetable for implementation of that

program. Pet. App. at 66e-48a. .

* With respect to one of these provisions, the court did pot issue any

pene tn deter rape pec dby we mae oe

error by fading tc respoad to a public comment during the

App eo enthtina Go an Geant

ope reer och hd

filed by a consortium of electric utilities that mtervened in

the proceedings below. The Environmental Protection Agency

has not petitioned for certiorari.

REASONS FOR DENYING THE PETITION

The decision of the D.C. Circuit will have only limited

social and economic impacts, and will not significantly alter

administration of air pollution regulatory programs. This Court

has twice denied certiorari in cases concerning the legality of

tall stacks and dispersion techniques, even though those cases

entailed consequences more far-reaching than are at issue

here.

The D.C. Circuit properly deferred to EPA's regulatory

evidence, and contrary to the purposes of $123.

1. The Social and Economic Impacts of the D.C. Circuit’s

Decision are Limited.

“staggering” economic and social consequences of the D.C.

Circuit's decision (Pet. at 3), “infinitely more complex"’ air

quality programs (id. at 4), and “‘dramatic redirection’ of air

pollution regulation (id. at 3). In this hyperbole it

Ese

7

stacks above 65 meters consist almost exclusively of 148

power plants and four copper smelters.’

Even among this group, only a fraction will be affected

by the decision below. Emissions must be reduced only at

those facilities that meet both of the following conditions: (1)

the facility's stacks exceed GEP height, and (2) when GEP

height is substituted for actual height in the mathematical

model used to set emission controls, the model predicts

unlawfully high pollution levels.*

Nor will the D.C. Circuit’s decision inhibit industrial

growth. All new power plants and smelters must comply with

special emission control requirements that cannot be evaded

by use of dispersion techniques.’ Petitioners have not shown

that the decision below will significantly add to these require-

ments.'°

b. Petitioners have likewise failed to show that the

decision below will have nationally significant monetary im-

’ EPA, Impact Assessment Report for the Final Stack Heights Regu-

lations (December 1981), at 2; H.E. Cramer Co., Identifying and Assessing

the Technical Basis for the Stack Height Regulatory Analysis (December

1979), at 23-24.

* Section 123 also requires regulation of dispersion techniques other

than stack height. §123(aX(2). The D.C. Circuit found EPA's regulations on

ance standards for new power plants and smelters); CAA §165(aX4), 42

cluded that EPA's 1979 proposal would not

2 -

level of 1.3 percent (Pet. App. at 128a, 123a). EPA concluded

that the EEA Report’s figures were ‘‘too high’’ , and estimated

total nationwide rate increases at less than 0.1 percent."

Contrary to the assertions of petitioners and Kennecott (Pet.

at 10-11, 23-24 n.52; Kenn. Resp. at 4), the agency found that

terrain effects were as likely to reduce these costs as to

increase them.'"?

c. The administration of air pollution programs will not

be ‘“‘redirect[ed]’’ by the D.C. Circuit's decision. Pet. at 3.

Specifically, the states would not ‘‘be forced to refocus their

air pollution control on nonexistent pollution concentrations

predicted using mathematical models.’’ Pet. at 28. Mathe-

matical models long ago replaced on-site measurements of

pollution as the nearly universa! method of setting air pollution

regulations." The effect of $123 thus is not to replace real

pollution measurements with theoretical models, but merely

to substitute one assumption for another in already-existing

models. As noted above, such substitutions will be required

only for a limited group of industrial facilities.

Petitioners’ claim that ‘‘states would have had difficulty

coping with the reviews required under the 1979 proposal”’

(Pet. at 28 n.61) is irrelevant here. EPA responded to the

states’ concerns by increasing the de minimis stack height

from thirty to sixty-five meters, thus vastly reducing the

number of facilities whose emission limitations would have

to be reexamined. 46 Fed. Reg. 49814, 49821 col. 3 (1981).

This solution remains unaffected by the D.C. Circuit's opinion.

Pet. App. at Ila-12a. It should also be noted that the states

who join in the present brief, and who joined in challenging

EPA's regulations in the court below, would not have done

so if they had doubted their ability to conduct the regulatory

" EPA, Impact Assessment Report for the Stack Heights Regulations

(April 1981) at 6, 18.

® April 1981 Impact Assessment Report, supra n. 11, at 12. The EEA

Report specifically concluded that terrain effects would reduce the costs of

the 1979 proposal. EEA Report, supra n. 10, at 6.

” See, e.g., Memorandum on Section 107 Designation Policy Summary

from Sheldon Meyers, Director, EPA Office of Air Planning and Standards,

to Regional Air Management Division Directors (April 21, 1983), at 2,

paragraph 3.

uae? 2a io

9

reviews associated with stricter rules.'* No states intervened

below on behalf of EPA.

2. This Court Has Declined To Review Dispersion Techniques

Cases More Important Than the Present One.

Petitioners’ discussion of prior petitions for certiorari

under the Clean Air Act (Pet. at 2-3, 4) omits the very cases

most relevant here. In NRDC v. EPA, 489 F.2d 390 (Sth Cir.

1974), rev'd on other issues sub nom. Train v. NRDC, 421

U.S. 60 (1975), the Fifth Circuit ruled that tall stacks and

dispersion techniques were prohibited by the Clean Air Act

of 1970, and rejected EPA's contrary construction of the Act.

Industry sought to overturn this decision by filing suit in two

ather circuits, and petitioning for certiorari from the resulting

unfavorable decisions. This Court denied both petitions. Big

Rivers Electric Corp. v. EPA, 523 F.2d 16 (6th Cir. 1975),

cert. denied, 425 U.S. 934 (1976); Kennecott Copper Corp.

v. EPA, 526 F.2d 1149 (9th Cir. 1975), cert. denied, 425 U.S.

935 (1976).

if Supreme Court review was inappropriate in the very

cases that initially established the broad prohibition on dis-

persion techniques, such review is a fortiori inappropriate in

the present case, which concerns only the manner in which

this prohibition will be implemented."

3. The D.C. Circuit Properly Deferred to EPA.

Petitioners characterize this case as a broad test of the

degree of deference to be accorded agency action. Pet. at 16-

“ The letter cited by petitioners (Pet. at 28 n.61) does not represent

©

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-

22. But the opinion below shows that the D.C. Circuit

understood the teachings of this Court on this issue (Pet. App.

at 48a), and that it applied those teachings to uphold the

agency's definitions of two statutory terms, despite persuasive

indications in the statute and legislative history that EPA had

misinterpreted Congress’s mandate. Pet. App. at 48a-49a,

59a."* Petitioners cannot prove error in the present case by

citing other D.C. Circuit opinions, particularly when those

opinions were written and joined by judges not on the panel

below. Pet. at 16 n.36, 17 n.37, & 17-18 n.41.

Nor are petitioners assisted by their reliance on the cases

that counsel granting ‘‘legislative effect’’ to agency interpre-

tations of statutes. Pet. at 18-19. These cases hold that a

reviewing court must determine ‘‘whether the Secretary has

exceeded his statutory authority and whether the regulation

is arbitrary and capricious’’. Herweg v. Ray, 455 U.S. 265,

275 (1982); accord, Schweiker v. Gray Panthers, 453 U.S. 34,

44 (1981); Batterton v. Francis, 432 U.S. 416, 426 (1977).

These are precisely the standards applied by the court below.

See, e.g., Pet. App. at Sa (‘‘[W]e find certain aspects of the

regulatory scheme to be contrary to the terms of the statute

and others to be arbitrary and capricious exercises of the

discretion conferred on the EPA by the Act.’’); id. at 69a

(reversing two provisions of EPA's rules as “‘beyond the

agency's statutory authority’’); id. at 44a (stating that the

court's task is to determine ‘whether EPA acted arbitrarily

and capriciously’’); id. at 16a (overturning provision that

violates ‘‘the clear thrust of the statutory language’’).

Also applicable here is Batterton’s statement that an

agency may not adopt a regulation ‘‘that would defeat the

purpose of the . . . [statutory] program’’. 432 U.S. at 428. All

of the provisions overturned or remanded by the D.C. Circuit

would have resulted in increased use of tall stacks by polluters,

* The court also affirmed the agency on two other issues (Pet. App.

at 14a, 28a-31a), and endorsed much of the agency's approach towards a

third. Pet. App. at 62a-66a.

thus defeating §123's central purpose of requiring industry to

clean up its pollution rather than disperse it."’

In sum, this case cannot be resolved by a broad decision

concerning the appropriate standard of deference to EPA.

Rather, this Court will necessarily be called upon to review

the statute, legislative and regulatory history, and administra-

tive record to determine if the D.C. Circuit reached a per-

missible result as to each of the specific issues raised by

petitioners.'* Such review would produce narrow decisions

on issues such as: whether GEP should be computed via a

rule-of-thumb formula or a case-specific modeling demonstra-

tion (Pet. App. at 39a-47a); whether terrain obstacles need to

be ‘‘nearby”’ a pollution source to justify increased stack

height credit (Pet. App. at 13a-18a); and whether a percentage

increase test is a rational method of defining GEP (Pet. App.

at 18a-28a). Such issues are more appropriately left to the

lower courts.

" Contrary to petitioners’ assertion (Pet. at 4, 29), Congress specifically

found that the public would benefit from the pollution reductions required

by $123. House Report at 82-88, U.S. Code Cong. & Ad. News at 1160-

67.

* As this Court observed in one of the cases cited by petitioners:

Although the Court of Appeals first addressed whether and to what

extent it should defer to the Commission's construction of the Act,

... this discussion and the conclusion that little or no deference was

due the Commission were pointless if the court was correct that the

agency agreements violated the plain language of the Act as well as

the statutory purposes revealed by the legislative history. The inter-

pretation put on the statute by the agency charged with administering

it is entitled to deference, . . . but the courts are the final authorities _

on issues of construction. must administrative :

rulemaking, that are inconsistent with the statutory mandate or that

frustrate the policy that Congress sought to implement. . . . Accord-

ingly, the crucial issue at the outset is whether the Court of Appeals

correctly construed the Act.

FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 31-32

(1981) (emphasis added), cited in Pet. at 19 n.43.

ttn Ve : ; SO Se es soe et Py

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12

-

4. The D.C. Circuit Correctly Determined That Portions of

EPA’s Regulations Are Inconsistent With The Clean Afr Act

and Unsupported by the Administrative Record.

While petitioners attempt to portray the D.C. Circuit as

a runaway court inclined to overturn agency action for

insubstantial reasons, examination of the opinion below makes

clear that the court approached this case objectively and

vacated portions of EPA’s regulations only reluctantly, after

concluding they exceeded the agency's authority under the

Clean Air Act or were unsupported by the administrative

record.

a. Plume Impaction—The issue about which petitioners

and Kennecott complain most loudly is the D.C. Circuit's

invalidation of EPA’s exemption for plume impaction. Pet. at

22-26; Kenn. Resp. at 4. A glance at the statute and EPA’s

rulemaking preamble reveals the correctness of this invali-

dation, and the falsity of petitioners’ assertion that EPA's

plume impaction exemption was written against a background

of ‘‘Congressional silence’’. Pet. at 26. Section 123 flatly

prohibits emission credit for stacks taller than GEP, $123(a\(1),

defined as the stack height necessary to prevent *‘downwash,

eddies and wakes’’. Section 123(c). EPA's plume impaction

exemption allows emission credit for stacks taller than nec-

essary to prevent ‘‘downwash, eddies and wakes’ ,'? 47 Fed.

Reg. at 5866 col. 3, thus violating the plain language of $123.

Petitioners assert that, because §123 does not specifically

mention plume impaction, EPA was free to carve out an

exemption from the comprehensive prohibition in §123(aX(1).

Pet. at 25-26. This argument is directly contrary to settled

principles of statutory construction set forth in the decisions

of this Court. Pet. App. at 33a-34a, 35a. Moreover, other

* Petitioners do not argue otherwise.

Petitioners’ description of the operation of EPA's plume impaction

exemption is misleading and inaccurate. In particular, it is petitioners, not

the D.C. Circuit, who would have EPA apply ‘a second false assumption”

(Pet. at 23) in the implementation of $123. In petitioners’ view EPA must

i.

13

provisions of the Act demonstrate that Congress knew how

to provide for more lenient treatment of polluters in rugged

terrain when it wished to do so. Pet. at 26 n.56. citing CAA

$$165(d\(2)(D\iii){iv). The absence of a plume impaction

exemption in §123 must therefore be interpreted as a deliberate

congressional choice to deny such treatment here.

b. Nearby—Petitioners’ arguments concerning the sta-

tutory term ‘‘nearby"’ are premised on the false assertion that

the D.C. Circuit ‘‘set aside EPA's definition of ‘nearby terrain

obstacles’”’. Pet. at 15. In reality the court set aside EPA’s

total failure to define that concept. While Section 123(c)

defines GEP as the stack height necessary to prevent down-

wash created by ‘‘nearby structures or nearby terrain obsta-

cles’’ (emphasis added), EPA's regulations refer only to

downwash created by ‘‘structures, or terrain obstacles’’. 47

Fed. Reg. at 5868-69 (to be codified in 40 C.F.R. §51.1(ii)(3)).

Moreover, the definition of ‘‘nearby’’ in EPA's regulations

applies only to ‘‘structure{s]"’, not terrain obstacles. Jd. at

5869 (to be codified in 40 C.F.R. §51.1@j)).

EPA's failure to implement the term ‘‘nearby terrain

obstacles"’ violates the plain language of §123(c), as well as

its legislative history. House Report at 93, U.S. Code Cong.

& Ad. News at 1171, cited in Pet. App. at 13a-i4a.

c. Excessive Concentrations and GEP Formula—With

respect to both of these concepts, the D.C. Circuit properly

remanded regulatory provisions that were patently irrational,

unsupported by the administrative record, and contrary to

the goals of $123.

1. The definition of ‘excessive concentrations” adopted

by EPA

would permit a source located in a very clean area

to raise its stack height credit, even if the downwash

avoided would only increase pollutant concentrations

by a very small amount that would be of no harm to

anyone.

Pet. App. at 18a-19a. Noting that the inc: cased stack height

credit allowed by EPA's definition ‘will mean increased

14

emissions and longer transport of pollutants, both of which

Congress has instructed the agency to minimize’’ (Pet. App.

at 28a), the court remanded to EPA ‘‘with instructions to

develop a standard directly responsive to the concern for

health and welfare that motivated Congress to establish the

downwash exception’’. Jd. The court did not attempt to

dictate the form such a standard would take.

| 2. EPA’s regulations included a mathematical ‘“‘“GEP

formula’’ designed to serve as an approximation of the stack

height necessary to prevent downwash, eddies and wakes, 47

Fed. Reg. at 5868 col. 3 (to be codified in 40 C.F.R §51.1(ii(2)),

but improperly adopted a skewed policy concerning the

correction of errors in this approximation. Under EPA's

regulations the formula may be corrected only when it under-

estimates GEP, but never when it overestimates. The effect

of this approach is to allow corrections that result in increased

stack height credit and more pollution, 47 Fed. Reg. at 5865

col. 2, but to prohibit corrections that result in decreased

stack height credit and less pollution. 46 Fed. Reg. at 49820

col. 3. Finding that ‘‘there is virtually no evidence in the

record supporting a conclusion that the formulas err only in

one direction’’ (Pet. App. at 45a), the D.C. Circuit concluded:

Rationality demands that if the inaccuracy is neutral,

the corrective device must be neutral.

Id. at 46a. Accordingly, the court remanded EPA's biased

rule.

d. Requirements on Remand—lin the preamble to its

schedule as violative of §406(d)(2) of the Act, which require

months

states to complete their implementation within ni

Id. at 66a-68a.

CONCLUSION

Review by this Court would result in a set o/’ narrow

decisions concerning a regulatory program of limited applic-

as

enh

eae

15

ability. Such decisions would uphold the D.C. Circuit, which

action. For the reasons stated, the petition for a

correctly applied the standards for judicial review of be

it

certiorari should be denied.

May 25, 1984

Respectfully submitted,

Howard I. Fox

Counsel of Record for Respondents

Richard E. Ayres

Counsel for Respondent Natural Resources

Defense Council

Thomas Y. Au

Counsel for Respondent Commonwealth of

Pennsylvania

Robert Abrams

Counsel for Respondent State of New York

Francis X. Bellotti

Counsel for Respondent Commonwealth of

Massachusetts

Gregory H. Smith

Counsel for Respondent State of New

Hampshire

Dennis J. Roberts, II

Counsel for Respondent State of Rhode

Island

John J. Easton, Jr.

Counsel for Respondent State of Vermont

THOMAS Y. AU

Assistant Counsel

Commonwealth of

Pennsylvania

Department of

Environmental

Resources

Room 505 Executive

House

P.O. Box 2357

Harrisburg, Pennsylvania

17120

(717) 787-7060

Counsel for Respondent

Commonwealth of

Pennsylvania

FRANCIS X. BELLOTTI

Attorney General

Commonwealth of

Massachusetts

STEPHEN M. LEONARD

Environmental Protection

Div.

One Ashburton Place,

19th Fl.

Boston, Massachusetts

02108

(617) 727-2265

Counsel for Respondent

Commonwealth of

Massachusetts

Grecory H. SMITH

Attorney General

State of New Hampshire

EDWARD CROSS

Assistant Attorney General

Environmental Protection

Div.

State House Annex

25 Capitol Street

Concord, New Hampshire

03301

(603) 271-3679

Counsel for Respondent

State of New Hampshire

JOHN J. EASTON, JR.

Attorney General

State of Vermont

MERIDETH WRIGHT

Assistant Attorney General

109 State Street

Montpelier, Vermont

05602

Counsel for Respondent

State of Vermont

ROBERT ABRAMS

Attorney General of the

State of New York

Davip R. WOOLEY

Assistant Attorney General

New York State

Department of Law

Environmental Protection

Bureau

The Capitol

Albany, New York 12224

(518) 474-4819

Counsel for Respondent

State of New York

DENNIS J. RoBertTs, II

Attorney General

State of Rhode Island

CHARLES E. DILEVA

Special Assistant Attorney

General

83 Park Street

Providence, Rhode Island

02903

(401) 274-4400

Counsel for Respondent

State of Rhode Island