# Reply Brief — Util. Air Regulatory Grp. v. Envtl. Prot. Agency, 135 S. Ct. 702 (2014) (No. 14-47)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0332%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2014

## Text

"Supreme Court US.)
FILED

MAR 18 2015
LOFFICE OF THE CLERK |
Nos. 14-46, 14-47, 14-49

IN THE
Hupreme Court of the United States

STATE OF MICHIGAN, ET AL.,
Petitioners,
Vv.

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, ET AL.,

Respondents.

On Writs of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit

REPLY BRIEF OF PETITIONER
UTILITY AIR REGULATORY GROUP, ET AL.

F. WILLIAM BROWNELL
(Counsel of Record)

HENRY V. NICKEL

LEE B. ZEUGIN
ELIZABETH L. HORNER
HUNTON & WILLIAMS LLP

2200 PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C. 20037

(202) 955-1500
bbrowneli@hunton.com

March 18, 2015 Counsel for Petitioner

[Counsel for Respondents in Support of Petitioner Joining
in This Brief Are Listed Inside This Cover]

COUNSEL FOR RESPONDENTS IN SUPPORT OF
PETITIONER JOINING IN THIS BRIEF

LESLIE SUE RITTS

Ritts LAW GROvuP, PLLC
THE CARRIAGE HOUSE
620 ForRT WILLIAMS
PARKWAY

ALEXANDRIA, VA 22304
(703) 823-2292

DENNIS LANE

STINSON LEONARD STREET

LLP

1775 PENNSYLVANIA

AVENUE, NW, SUITE 800

WASHINGTON, D.C. 20006

(202) 785-9100

dennis.lane@
stinsonleonard.com

PARTHENIA B. EVANS
STINSON LEONARD STREET
LLP
1201 WALNUT STREET
SUITE 2900
KANSAS CITY, MO 64106
(816) 842-8600
parthy.evans@
stinsonleonard.com
Counsel for Kansas City
Board of Public Utilities

ERIC GROTEN

VINSON & ELKINS LLP
2801 VIA FORTUNA

SUTTE 100

AUSTIN, TX 78746-7568
(512) 642-8709
egroten@velaw.com
Counsel for White Stallion
Energy Center, LLC

RULE 29.6 DISCLOSURE STATEMENTS

Petitioner

Utility Air Regulatory Group (UARG’) is an
ad hoc, unincorporated association of individual elec-
tric generating companies and industry trade associ-
ations that participates on behalf of its members col-
lectively in administrative proceedings under the
Clean Air Act, and in litigation arising from those
proceedings, that affect electric generators. UARG
has no outstanding shares or debt securities in the
hands of the public and has no parent company. No
publicly held company has a 10% or greater owner-
ship interest in UARG.

R Jents in S t of Petiti "

American Public Power Association (“APPA”)
is a nonprofit trade association whose members are
units of state and local governments that own and
operate electric generating, distribution and trans-
mission assets. APPA addresses issues of interest to
its members, including those issues related to the
development and implementation of requirements
under federal and state Clean Air Act programs.
APPA does not have any outstanding securities in
the hands of the public, nor does APPA have a pub-
licly owned parent, subsidiary, or affiliate.

ARIPPA is a non-profit trade association that
represents a membership primarily comprised of
electric generating plants using environmentally-
friendly circulating fluidized bed boiler technology to
convert coal refuse and/or other alternative fuels
such as biomass into alternative energy and/or
steam, with the resultant alkaline ash used to re-
claim mine lands. ARIPPA was organized in 1988

zs

for the purpose of promoting the professional, legis-
lative and technical interests of its member facilities.
ARIPPA has no outstanding shares or debt securities
in the hands of the public and does not have any par-
ent, subsidiary, or affiliate that has issued shares or
debt securities to the public.

Gulf Coast Lignite Coalition (GCLC”) is a
non-profit corporation organized under the laws of
the State of Texas and comprised of individual elec-
tric generating and mining companies. GCLC partic-
ipates on behalf of its members collectively in pro-
ceedings brought under United States environmental
regulations, and in litigation arising from those pro-
ceedings, which affect electric generators and mines.
GCLC has no outstanding shares or debt securities
in the hands of the public and has no parent compa-
ny. No publicly held company has a 10% or greater
ownership interest in GCLC.

Kansas City Board Of Public Utilities-
Unified Government Wyandotte County/Kansas
City, Kansas is not required to provide a Rule 29.6
Disclosure Statement because it is a governmental
entity organized under the laws of the State of Kan-
sas. Accordingly, no Disclosure Statement is being
provided.

White Stallion Energy Center, LLC (“‘WSEC’)
is a limited liability company organized under the
laws of the State of Texas engaged in the business of
energy development and production. Maris Invest-
ment Company, LLC, and Sky Global Partners, LLC
each hold a 10% or greater ownership interest in it.

TABLE OF CONTENTS
Page
RULE 29.6 DISCLOSURE STATEMENTS ................ i
ED CI CET EEE crcccccincncecevecesncsscnsenesentennnsaneti ili
TABLE OF AUTHORITIEG.....................cccccccececececeeee iv
Se IIIITTITTTTITT ccncncatnadatesienanmunnedionuenmadunsaamnanananes l
SEITE eanatesccdenccmmnssniedinnsnetenedinceuaminatesemenncinenniel 3
I. “Appropriate and Necessary” Is Not

Used in §7412(n){1)(A) to Decide

Whether, or Not, to List EGUs Under

§7412(c), But Is the Ultimate

Decisional Standard Governing

Whether or Not to Regulate Under

§7412 EGU HAP Emissions That

Pose Public Health Risks................00000000000.... 3

Il. Section 7412(n)(1)(A) Authorizes

“Residual Risk” Regulation Only If

“Such Regulation” Is “Appropriate

i 9
ITI accciscicchiinchiesnisiesiiataniianbemubadebenaiasabmaneusnn’s 13

iv

TABLE OF AUTHORITIES
Page
Cases:
Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29 (1983) ..0....0.--cccccecceecee. 2
Natural Res. Def. Council v. EPA, 824 F.2d 1146
REI I Lait 12
Natural Res. Def. Council v. EPA, 529 F.3d 1077
ESS eee eee 10, 12
Statutes:
Clean Air Act, 42 U.S.C. §§7401, et seq.
Re I innicrnniscnnssasacanecbeimagsimimeeinien’ sa passim
Be I ricccccnnshnenmescosesinniunanentaanes passim
ee Ns UIE cisihertenconiassibnintnbiadbioneamtanes passim
ee 1
en SERA LRSM T 1
A ccs a 1
of | BSR TASE Pa 1, 10, 11,13
a rs a 11, 12
a RS A NR eee ek ls 1,13
a MRS RETR EMRE Oy La
42 U.S.C. §7412(m)(1)(A) .......ccccecccceeeeceeceeee passim
Federal Register:

54 Fed. Reg. 38,044 (Sept. 14, 1989) 0000. 12

INTRODUCTION

Section §112(n)(1)(A) of the Clean Air Act (“CAA”
or “Act”), 42 U.S.C. §7412(m)(1)(A), requires the U.S.
Environmental Protection Agency (“EPA” or “Agen-
cy”) to decide whether “regulation” of hazardous air
pollutant (“HAP”) emissions from electric utility gen-
erating units (“EGUs”) “under this section” is “ap-
propriate and necessary” after considering a study
that addresses only two subjects: (1) “hazards to
public health” that remain “after imposition of the
requirements of this chapter,” and (2) “alternative
control strategies for emissions which may warrant

regulation.”

In §7412(n)(1)(A), EPA’s first task is to find that a
residual public health hazard is posed by specific
EGU HAP emissions remaining after those emissions
have been reduced under other provisions of the Act,
and to identify alternative control strategies to re-
duce further any emissions that “may warrant regu-
lation.” Next, if it finds any remaining EGU HAP
emissions pose a health hazard, EPA must deter-
mine how to regulate those emissions “under this
section.”

Different subsections of §7412 provide different
decisional standards for regulating HAP emissions
“under this section,” including subsections (d)(2)
(‘maximum achievable” control technology); (d)(3)
(“floor” control technology); (d)(5) (‘generally availa-
ble control technolog{[y]”); (f) (‘ample margin of safe-
ty”); (m) (‘necessary and appropriate”); and (n) itself.
Once EPA determines the HAP emissions that war-
rant regulation and the degree to which those EGU
emissions would be regulated under §7412, EPA
must resolve whether or not “such regulation” under

2

this section “is appropriate and necessary.” Costs,
along with potentially myriad other factors, are rele-
vant in applying this broad regulatory decisional
standard that concludes the §7412(n)(1)(A) process.

Notwithstanding its mischaracterization of the
Chevron standard, see National Mining Ass’n Reply
Br. 1-2, 9, EPA is right that the interpretive question
before the Court is whether the term “appropriate”
requires EPA to consider costs “when deciding ... to
regulate” EGUs. EPA Br. 21. After correctly stating
the question, however, EPA addresses a wholly dif-
ferent question—that is, whether the term “appro-
priate” makes costs relevant to “listing” decisions
under §7412(c). See, e.g., id. at 17, 18, 28, 36, 48, 57
(arguing that “appropriate” addresses the threshold
“listing” decision).

According to EPA, if any EGU HAP emission
threatens “health or the environment” (i.e., satisfies
the criteria for “area source” listing under §7412(c)),
EPA can find that it is “appropriate and necessary”
to list, and that ends EPA’s responsibilities under
§7412(n)(1)(A). Id. at 26. But “to list or not to list” is
not the question raised by §7412(n)(1)(A); the ques-
tion raised by that section is whether additional
“regulation” of EGU HAP emissions “under this sec-
tion” is “appropriate and necessary.” The statutory
question calls for a decision to authorize or to pre-
clude specific regulation of EGU HAP emissions un-
der §7412.

This Court long ago made it clear that agency de-
cision-making is unreasonable whenever it has
“failed to consider an important aspect of the prob-
lem.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). EPA’s failure

3

to make the §7412(n)(1)(A) finding whether “such
regulation” under §7412 is “appropriate and neces-
sary” after considering costs and other consequences
of that decision was per se unreasonable.

ARGUMENT

This case presents a stark difference in how the
parties read §7412(n)(1)(A). According to EPA and
its respondents, EPA’s obligation under this provi-
sion is discharged once EPA concludes that “listing”
under §7412(c) is “appropriate and necessary.” I..
Petitioners view, EPA’s_ obligation under
§7412(n)(1){A) is not discharged until EPA decides on
the regulatory standard to apply “under this sec-
tion”—whether using §7412(d) or some other regula-
tory metric—and then determines that “such regula-
tion” is “appropriate and necessary.” For the reasons
discussed below, EPA’s construction of §7412(n)(1)(A)
is wrong and the Mercury and Air Toxics Standards
(“MATS Rule”) is unlawful.

I. “Appropriate and Necessary” Is Not Used
in §7412(m)(1)(A) to Decide Whether, or
Not, to List EGUs Under §7412(c), But Is
the Ultimate Decisional Standard Gov-
erning Whether or Not to Regulate Under
§7412 EGU HAP Emissions That Pose
Public Health Risks.

EPA’s brief presents a clearly drawn distinction
between the parties’ positions regarding the role of
§7412(n)(1)(A) and the relevance of costs under that
provision. According to EPA and its respondents,
the phrase “appropriate and necessary” merely de-
scribes a “special procedure” related to listing EGUs
under §7412(c). EPA Br. 7. As EPA sees it,
§7412(n)(1)(A) provides that, once the study of re-

i

maining EGU health hazards is completed, it is “ap-
propriate and necessary” to list EGUs under §7412(c)
when the criteria for listing would otherwise be pre-
sent after implementation of other EGU emission re-
ductions under the Act. Id. at 32 (“[I]t is farfetched
to suppose ... Congress required the agency to use
listing criteria fundamentally different from those
that Congress had mandated for all other stationary-
source categories.” (emphasis omitted)).

By contrast, in the Utility Air Regulatory Group’s
(‘UARG’s”) view, the term “appropriate and neces-
sary” calls on EPA to make the ultimate substantive
regulatory determination with respect to §7412 regu-
lation of EGU HAP emissions: Specific regulation
under §7412 limiting EGU HAP emissions may be
adopted by EPA only if “such regulation is appropri-
ate and necessary” after considering remaining pub-
lic health hazards and alternative control strategies
for those HAP emissions that “may warrant regula-
tion.” This decisional standard applies at the end of
the §7412(n)(1)(A) regulatory process to resolve
whether to promulgate, or to reject, a specific type
and level of regulation for any EGU HAP emissions
posing health hazards. Resolving the nature of
EPA’s “appropriate and necessary” finding resolves
the “contextual” debate in this case.

EPA describes the “appropriate and necessary”
language in §7412(n)(1)(A) as “a special procedure
that EPA must follow before deciding whether to list
power plants for regulation under the [national
emission standards for hazardous air pollutants
(NESHAP’] program.” EPA Br. 7 (emphasis added).
Through this prism, EPA and respondents repeat
over and over statements to the effect that nothing in
“the text of [§7412(n)(1)(A), or in] ... Congress’s rea-

5

sons for enacting it, suggest that Congress wished to
encourage (much less require) EPA to consider costs
in making the threshold listing decision.” Id. at 18
(emphasis added); see also id. at 17, 18, 28, 36 (de-
scribing the §7412(n)(1)(A) determination as a
threshold “listing” determination). To find that EGU
regulation is “appropriate,” EPA need only complete
its study of remaining hazards and find that, if any
remaining EGU HAP emissions pose a threat to
“public health or the environment,” listing is “appro-
priate.” Id. at 11, 26.

Furthermore, because EPA interprets §7412 to
require regulation of EGUs the same as other source
categories, if a “single” HAP emitted by an EGU
“poses a hazard to public health or the environment”
requiring listing, EPA must “promulgate standards
for all hazardous air pollutants emitted” by EGUs,
regardless of cost or hazard. Id. at 12, 45 (“[I]f EPA
lists power plants ... [under] Section 7412(n)(1)(A),
those facilities will be subject to the same standard-
setting provisions that govern stationary sources
within all other [§7412(c)] listed categories.”). Given
this interpretation of §7412, EPA _ continues,
§7412(n)(1)(A) “does not mandate distinct ‘appropri-
ate and necessary’ findings for each individual pollu-
tant [being regulated]” because §7412(c) listing can
be triggered by a single HAP. Z/d. at 12. Rather,
EPA’s §7412(n)(1)(A) responsibilities end with listing
EGUs, and Congress’s mandate that all HAPs emit-
ted by a source category listed under §7412(c) be
regulated under §7412(d) goverus everything that
follows listing. Id. at 30.

If §7412(n)(1)(A)’s only function is, as EPA claims,
to confirm that “listing” under §7412(c) is “appropri-
ate” based on a remaining threat to “public health or

6

the environment,” cost would be irrelevant to that
narrow decision. See id. at 30 n.8 (“Congress would
not have expected EPA to consider—at the listing
stage—the cost of complying with emission stand-
ards that had not yet been formulated.”). ‘Ihe con-
trast between what EPA would have §7412(n)(1)(A)
say and the actual language of that provision, how-

ever, is striking.

Section 7412(n)(1)(A) calls for EPA to prepare “a
study” (“Utility Study”) identifying those EGU emis-
sions that pose a “hazard[] to public health” after
compliance with other EGU CAA control programs,
and then to evaluate alternative control strategies
for only those EGU HAP emissions that “may war-
rant regulation.” That Utility Study, and only that
Utility Study, was identified by Congress for consid-
eration by EPA in making an “appropriate and nec-
essary decision under §7412(n)(1)(A). Under the
terms of the statute, the Utility Study addresses fac-
tors irrelevant to §7412(c) listing (e.g., alternative
strategies to control emissions posing health haz-
ards) and ignores two of the three factors relevant to
listing (i.e., HAP tonnages and HAP “environmental!”
threats). In other words, there is a fundamental dis-
connect between the subject matter of the Utility
Study and the criteria for listing. But there is a di-
rect connection between the Utility Study and
whether and how regulation of those EGU emissions
posing remaining hazards to public health might be
regulated “under this section” if “appropriate and
necessary” (e.g., identification of alternative control
strategies for HAP emissions where further reduc-
tions may be “warrant[ed]”).

Furthermore, under EPA’s construction of
§7412(n)(1)(A), if the Utility Study had not identified

7

any EGU HAP emissions that posed a health hazard,
EPA could still find that listing is “appropriate”
based on an “environmental” risk, and that simple
finding would satisfy §7412(n)(1)(A). Following list-
ing, EPA could promulgate §7412(d) standards regu-
lating all EGU HAP emissions—even emissions that
pose no residual public health risk—and could prom-
ulgate these standards without any evaluation of
whether “such regulation” was “appropriate and nec-
essary.” EPA Br. 30. That result is not consistent
with any reasonable interpretation of the language of
§7412(n)(1)(A).

In §7412(n)(1)(A), Congress did not—as EPA
claims—‘“implicitly authorize[] EPA to determine the
‘appropriate[ness]’ of such listing.” Id. at 23 (empha-
sis added). Instead, Congress required EPA to “regu-
late ... under ... section [74127 HAP emissions from
EGUs that pose residual public health “hazards,” but
only “if the Administrator finds such regulation is
appropriate and necessary after considering the
[study] results.” 42 U.S.C. §7412(n)(1)(A) (emphases
added). Section 7412(n)(1)(A) does not mention list-
ing because listing is only a precondition to regula-
tion under one subsection of §7412: §7412(d), the
subsection under which EPA chose to regulate EGUs
in this case. Only after EPA determined what those
standards would require could EPA make the “ap-
propriate and necessary” finding called for in
§7412(n)(1)(A), as written by Congress: whether or
not “such [§7412] regulation [of EGU emissions] is
appropriate and necessary.” Jd. (emphasis added).

At the time of the 1990 Amendments, EGU HAP
emissions had been extensively controlled under oth-
er CAA programs and were targeted for substantial
further reductions under the 1990 Amendments. See

8

UARG Opening Br. 9-11. By contrast, the §7412(d)
regulatory program was established to bring about
expeditious regulation of non-EGU source categories
that had avoided regulation under the pre-1990
HAPs emission standards program. Congress made
costs (and a whole host of other factors) irrelevant to
the §7412(c) listing decision, which must be made as
a prerequisite to initiating §7412(d) standard setting.

As enacted by Congress in 1990, only two factors
are relevant to listing under §7412(c): whether ton-
nage thresholds are exceeded (for major sources) and
whether emissions pose a “health or environmental”
threat (for area sources). In construing EPA’s
§7412(n)(1)(A) “appropriate and necessary” responsi-
bilities to be fully discharged once EGUs are listed
under §7412(c), see, e.g., EPA Br. 26, EPA gives no
content to §7412(n)(1)(A)’s direction to EPA to de-
termine whether “such regulation” under this section
is “appropriate and necessary.” Because §7412(c)
listing precedes any regulation of HAP emissions, it
cannot discharge EPA’s obligation to engage the
question whether or not standards under §7412(d)
(or any other subsection of §7412 under which the
Administrator may choose to regulate) are “appro-
priate and necessary.”

In sum, “appropriate and necessary” is not a find-
ing focused on §7412(c) “listing” It is a finding that
must follow the identification of “hazards to public
health” in the Utility Study and the determination of
how emissions posing a hazard should be regulated
“under” §7412. Only after EPA determines the re-
ductions in EGU emissions required by that “regula-
tion” would EPA have the information that it must
have to discharge its §7412(n)(1)(A) obligation to de-
termine whether “such regulation” is “appropriate

9

and necessary.” For these reasons, the “appropriate
and necessary” finding is an independent regulatory
standard that authorizes, limits, or precludes regula-
tion of EGU emissions under §7412. A broad range
of factors—including costs—are relevant to that kind
of a regulatory judgment.

II. Section 7412(n)(1)(A) Authorizes “Resid-
ual Risk” Regulation Only If “Such Regu-
lation” Is “Appropriate and Necessary.”

On its face, §7412(n)(1)(A) is a “residual risk”
regulatory provision. It focuses exclusively on regu-
lation of “hazards to public health” from EGU HAP
emissions that are “reasonably anticipated to occur
... after imposition of ... requirements” of the Act,
and requires EPA to determine whether further reg-
ulation of EGU HAP emissions that pose public
health hazards is “appropriate and necessary.” 42
U.S.C. §7412(m)(1)(A). In this context, “appropriate
and necessary” requires EPA to make a risk man-
agement decision regarding whether and, if so, the
degree to which health risks need to be reduced.
This is a policy judgment to which cost is relevant.
See UARG Opening Br. 26.!

In the MATS rulemaking, EPA promulgated
three different §7412(d) standards that have signifi-
cant cost consequence for EGUs: (i) standards for
mercury emissions, (ii) standards for emissions of
“non-mercury metals,” and (iii) standards for “acid
gases.” The relevance of cost to determining whether

! For these reasons, State Respondents’ argument that
§7412(n)(1)(A) does not call for a residual risk determination
“because no such [§7412] standards have ever been in place” for
EGUs, State Resp’ts’ Br. 25, profoundly misses the point.

10

“such regulation” under §7412 is “appropriate and
necessary is illustrated by the consequences of reg-
ulation under each of these §7412(d) standards.

ln the case of mercury, the §7412(d) standard will
cost approximately $3 billion dollars annually, Amici
Curiae Brief of the Chamber of Commerce of the
United States of America, et al. in Support of Peti-
tioners (‘Chamber Br.”) 22, and is claimed by EPA to
reduce developmental health risks across the country
posed by current and past exposures. Had EPA con-
sidered costs, it is unclear whether the Agency would
have been able to explain why regulation is “appro-
priate and necessary” in light of the projected quan-
titative and qualitative health benefits. See Amicus
Curiae Br. of Cato Institute in Supp. of Pet’rs. But
there is no lack of clarity for the other two §7412(d)
standards.

In the case of non-mercury HAP metals, only a
small subset of EGUs were projected by EPA to re-
sult in public health risks slightly exceeding EPA’s
one-in-one million de minimis risk threshold, and
EPA projected no risk for the remaining EGUs sub-
ject to the standard. UARG Opening Br. 13. These
are risk levels that EPA has determined protect
“public health” with an “ample margin of safety” in
§7412(f) “residual risk” rulemakings. /d. at 8; Natu-
ral Res. Def. Council v. EPA, 529 F.3d 1077, 1081-83
(D.C. Cir. 2008). By comparison to these insignifi-
cant health risks, the §7412(d) non-mercury metal
standards impose control costs of approximately $1
billion annually on all EGUs that emit non-mercury
metals. Chamber Br. 22-23.

In the case of acid gases, EPA’s standards do not
address any public health hazard, but only an as-

11

serted “environmental” threat and will impose annu-
al costs that are almost two times the mercury costs.
UARG Opening Br. 19. This $5 billion annual ex-
penditure will result in approximately a 40,000 ton
reduction in hydrogen chloride (and lesser amounts
of other) acid gas emissions, UARG Pet. App. 442a,
all for no health benefit. By shifting the focus of the
“appropriate and necessary” determination from
“regulation” under §7412 to “listing” under §7412(c),
EPA avoided addressing the statutory question: Is
“such regulation” “appropriate and necessary” to ad-
dress residual public health risk.

EPA argues that it is “irrelevant” whether or not
§7412(n)(1)(A) addresses regulation of residual risk,
asserting that “[t]he fact that a particular CAA pro-
vision” like §7412(n)(1)(A) “requires EPA to take ac-
count of existing regulatory requirements when de-
ciding whether to impose further regulation” simply
has “no bearing” on whether EPA should have “con-
sider{ed] costs in making” its finding to list. EPA Br.
51, 52. That argument fails for the reasons dis-
cussed above. Section 7412(n)(1)(A) asks whether or
not “regulation” is “appropriate and necessary” in re-
sponse to a health hazard, not “listing.”

More fundamentally, §7412(f)(2)(B) confirms
Congress's general approach to regulation of residual
risk under §7412. Section 7412(f) is a residual risk
provision because its focus is on whether or not to
reduce “public health” or “environmental!” risks posed
by emissions that remain after implementation of
control requirements under §7412(d). In the Sep-
tember 1989 Federal Register notice referenced by
Congress in §7412(f)(2)(B), EPA affirmed that, in de-
termining whether and how to regulate any remain-
ing health risk under the “ample margin of safety

12

standard,” EPA would take into account all “relevant
factors including costs and economic impacts, techno-
logical feasibility, and other factors relevant to each
particular decision.” 54 Fed. Reg. 38,044, 38,045
(Sept. 14, 1989) (emphasis added). As a result, even
if Natural Resources Defense Council v. EPA, 824
F.2d 1146 (D.C. Cir. 1987), only held that EPA had
“discretion” to consider costs in establishing an “am-
ple margin of safety,” EPA Br. 52, EPA exercised its
Chevron Step Two discretion to give “ample margin
of safety” that interpretation after that decision, and
Congress adopted that interpretation in the CAA?

Congress included the §7412(n) residual risk pro-
vision in the 1990 Amendments because EGUs were
already extensively controlled, and those controls
would result in significant reductions in EGU HAPs.
In the case of acid gases, for example, other CAA
programs have resulted in millions of tons of reduc-
tion in emissions, at a fraction of the cost of the
thousands of tons of acid gas emissions reduction
mandated by the MATS Rule.

To conclude that Congress intended to give EPA
discretion to negate a carefully crafted, market-based
“acid deposition” program established in the 1990
Amendments by allowing EPA to impose command
and control regulation on EGU acid gases under
§7412 is a bridge too far. Congress’s focus on only
residual public health hazards in §7412(n)(1)(A), not

* Cf. Natural Res. Def. Council, 629 F.3d at 1082 (The word
‘interpretation’ [as used in §7412(f)(2)(B)] indicates that the
savings clause is not limited to EPA’s benzene-specific determi-
nations, but applies broadly to the agency's construction of the
Clean Air Act” as set forth in the benzene standard. (emphasis
added)).

13

both health and environment threats as provided in
§7412(f) and (m), took acid gases off the §7412 “regu-
latory table” for EGUs, leaving a mandate to regu-
late only as “appropriate and necessary” to reduce
remaining health risks. This broad subjective policy
judgment requires consideration of all regulatory
consequences, including cost.

CONCLUSION

The judgment below should be reversed. Further,
because of regulatory extensions granted by certain
states, approximately 130 EGUs still face a future
compliance date for the MATS Rule, by which they
must shut down or install costly control technology.
In light of these impending deadlines and the lead-
time needed to adjust compliance plans accordingly,
UARG requests that, if the rule is remanded for fur-
ther rulemaking, the Court direct that all future
compliance dates be suspended pending any such
additional rulemaking, and order such further relief
as is necessary based on this Court’s decision.

March 18, 2015

14
Respectfully submitted,

F. WILLIAM BROWNELL
(Counsel of Record)

HENRY V. NICKEL

LEE B. ZEUGIN

ELIZABETH L. HORNER
HUNTON & WILLIAMS LLP
2200 PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C. 20037
(202) 955-1500
bbrownell@hunton.com
Counsel for Petitioner

Utility Air Regulatory Group

RESPONDENTS IN SUPPORT OF
PETITIONER JOINING IN THIS BRIEF

LESLIE SUE RITTS

Ritts LAW GRouP, PLLC

THE CARRIAGE HOUSE

620 FoRT WILLIAMS

PARKWAY

ALEXANDRIA, VA 22304

(703) 823-2292

LSRitts@
rittslawgroup.com

Counsel for American

Public Power Associa-

tion

BART E. CASSIDY

KATHERINE L. VACCARO

MANKO, GOLD, KATCHER

& Fox, LLP

401 Crry AVENUE

SUITE 901

DENNIS LANE

STINSON LEONARD STREET

LLP

1775 PENNSYLVANIA

AVENUE, NW, SUITE 800

WASHINGTON, D.C. 20006

(202) 785-9100

dennis. lane@
stinsonleonard.com

PARTHENIA B. EVANS

STINSON LEONARD STREET

LLP

1201 WALNUT STREET

SUITE 2900

KANSAS CITY, MO 64106

(816) 842-8600

parthy.evans@
stinsonleonard.com

BALA CYNWYD, PA

19004

(484) 430-5700

bcassidy@
mankogold.com

Counsel for ARIPPA

MICHAEL NASI
JACKSON WALKER LLP
100 CONGRESS AVENUE
SUITE 1100

AUSTIN, TX 78701
(512) 236-2000
mnasi@jw.com
Counsel for Gulf Coast
Lignite Coalition

15

Counsel for Kansas City
Board of Public Utilities

ERIC GROTEN

VINSON & ELKINS LLP
2801 VIA FORTUNA

SUITE 100

AUSTIN, TX 78746-7568
(512) 542-8709
egroten@velaw.com
Counsel for White Stallion
Energy Center, LLC

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0332%3A18. Public record. Not legal advice.