Opposition Brief — Ohio v. Thomas

No. 85-1372 MAY 231 1088

| CERK

In the Supreme Court of the United States

OCTOBER TERM, 1985

STATE OF OHIO, PETITIONER

vw

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

F. HENRY HABICHT II

Assistant Attorney General

ROBERT L. KLARQUIST

ANNE S. ALMY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the Environmental Protection Agency properly

refused to redesignate Lorain County to attainment for

ozone on the ground that emissions from that county con-

tribute to the ozone nonattainment problem in the Cleve-

land urban area.

(I)

TABLE OF CONTENTS

Page

ee hee es aces ec ck eas sae sekw be l

tig SO err l

EE a l

EEE Sl ET CTP CTC TERT TT CERT 7

SEL eee TD A SA ee 14

TABLE OF AUTHORITIES

Cases:

American Textile Manufacturers Inst. v.

SS SR 11

Cerro Copper Products Co. v. Ruckeilshaus,

SIC CTT CE ET CUTER ET Tee 13

Chemical Manufacturers Assin v. NRDC,

Ee |) 8

Chevron U.S.A. Inc. v. NRDC,

ce vb be ae aces eee oo 2, 6, 8, 9, 10

Illinois State Chamber of Commerce v. EPA,

EE Ee 10, 13

Mobil Oil Corp. v. FPC, 417 U.S.

RE Gd eran 11-12

Universal Camera Corp. v. NLRB,

ER 12

Western Oil & Gas Assin v. EPA,

Ee ee 1]

(111)

IV

Page

Statutes and regulations:

Clean Air Act, 42 U.S.C. 7401 et seq. :

§$ 107(a), 42 U.S.C. 7407(a) ..... 66... ee eee 2

$ 107(d), 42 U.S.C. 7407(d) ........... 2, 4,5

$ 107(d\(1), 42 U.S.C. 7407(d){1) .......-- ae

$ 107(d)(2), 42 U.S.C. 7407(d){2) .....-.-.-- 3

$ 107(d\(5), 42 U.S.C. 7407(d{5) .......---- 3

§$ 108, 42 U.S.C. 740B 2... ecw cece eee 2

8 109, 42 U.S.C. TOD 2... cccccccvcccccccs 2

$ 110(a), 42 U.S.C. 7410{a) ..........-.---- 2

BUTE, 42 UBC. TIO) wcccscccessccseseses 2

& 171(2), 42 U.S.C. TIOINZ) ....cccccccccess )

§$ 172(a)(1), 42 U.S.C. 7502(aX1) .......---- 2

$ 172(aX(2), 42 U.S.C. 7502(aX2) .........-- 2

$ 172(b)(3), 42 U.S.C. 7502(b)(3) .......--.- 3

$ 172(b\(6), 42 U.S.C. 7502(b)(6) .........-. 3

$ 172(b)(11)(B), 42 U.S.C. 7502(b)(11)(B) ... 3

B 173, 42 U.S.C. TIS wn cccccscccccccceses 3

Clean Air Amendments of 1970, Pub. L.

No. 91-604, 84 Stat. 1676 et seq. ............. l

36 Fed. Reg. 22384 (1971) wane at

ot rn er ey a re 2

44 Fed. Reg. 8202 (1979) (codified at

Oe Gs SRT 5a aoe cc eKkusbanrnenes 4

Miscellaneous:

oe ak pr rrr 2

43 Fed. Reg. (1978):

Oe cist cae hpaseecuvabieakc eens wae 5

Page

Miscellaneous—Continued:

48 Fed. Reg. (1983):

DEO chan thnek wii e cake Vee kaeewEdees 6

PE CAN aS ECE S ROSS N NEARER EAS RA OeS 5

Ge PE, Te, Dene CHWS Nowe biwscssaeevcees 6

H.R. Rep. 95-294, 95th Cong., Ist Sess.

(og) DE ee ee rr pr re rey er peer re 2

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-1372

STATE OF OHIO, PETITIONER

V.

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A14) is

reported at 776 F.2d 1333. The final decision of the Admin-

istrator of the Environmental Protection Agency (Pet. App.

A15-A28) is published at 49 Fed. Reg. 24124.

JURISDICTION

The judgment of the court of appeals (Pet. App. Al) was

entered on November 15, 1985. The petition for a writ of

certiorari was filed on February 12, 1986. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In the Clean Air Amendments of 1970, Pub. L.

No. 91-604, 84 Stat. 1676 et seg., Congress established a

combined federal and state program for the control and

(1)

2

abatement of air pollution. Sections 108 and 109 of the Act,

42 U.S.C. 7408 and 7409, provide for the Environmental

Protection Agency (EPA) to establish primary and secon-

dary national ambient air quality standards (NAAQS) to

protect the public health and welfare. Sections 107(a) and

110(a), 42 U.S.C. 7407(a) and 7410(a), require each state to

adopt, and to submit to EPA for approval, a “state imple-

mentation plan” (SIP) designed to attain and maintain the

NAAQS within specified deadlines.

EPA promulgated NAAQS for several air pollutants in

1971. 36 Fed. Reg. 22384 (now codified at 40 C.F.R. Pt. 50).

The states submitted the required SIPs shortly thereafter,

and EPA generally approved them. See, e.g., 37 Fed. Reg.

10842 (1972). Under the statutory schedule, states were

(with limited exceptions) to attain the primary NAAQS by

mid-1975. See generally Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 845-846 (1984).

In fact, however, many areas failed to attain the NAAQS

despite the development and promulgation of the necessary

SIPs. See H. R. Rep. 95-294, 95th Cong., Ist Sess. 207-208

(1977). In 1977, Congress added Part D to the Clean Air

Act, 42 U.S.C. 7501 et seq., to establish a new and more

elaborate system of air quality planning for nonattainment

areas. The 1977 amendments generally permitted extension

of the deadline for attaining the NAAQS to December 31,

1982 (Section 172(a)(1), 42 U.S.C. 7502(a)(1)); if a state

demonstrated that attainment of the photochemical oxi-

dant or carbon monoxide NAAQS was not possible by that

date despite the use of all reasonably available control

measures, the deadline for those pollutants could be

extended to 1987 (Section 172(a)(2), 42 U.S.C. 7502(a)(2)).

See generally Chevron U.S.A., 467 U.S. at 847-849.

The 1977 amendments also added subsection (d) to Sec-

tion 107 of the Act, 42 U.S.C. 7407(d). Subsection (d)(1)

directed the states to “submit to the Administrator[of EPA]

3

a list, together with asummary of the available information,

identifying those air quality control regions, or portions

thereof,” in which air quality (1) met the NAAQS (attain-

ment areas), (2) did not meet the NAAQS (nonattainment

areas), or (3) could not be classified for lack of information

(unclassifiable areas). EPA was then required to promul-

gate the state lists “with such modifications as [the Adminis-

trator] deems necessary” (42 U.S.C. 7407(d)(2)). If the

Administrator proposed to modify a state list, he had to

notify the state, request “all available data,” and provide the

state with an opportunity to show why the proposed modi-

fication was “inappropriate” (ibid.). Subsection (d)(5) also

permitted a state to revise and resubmit its lists to the

Administrator for review and approval under these pro-

cedures.

In addition, the 1977 amendments required the states to

submit comprehensive SIP revisions for nonattainment

areas. The revised SiPs were to provide for annual incre-

mental emission reductions sufficient to demonstrate

“reasonable further progress” toward meeting the new

deadlines. Section 172(b)(3), 42 U.S.C. 7502(b)(3). In par-

ticular, the revised SIPs had to provide for emission reduc-

tions from existing sources based on “reasonably available

control technology” (ibid.), and to incorporate strict

requirements governing the issuance of permits for the con-

struction and operation of new or modified major station-

ary sources in the nonattainment area (Sections 172(b)(6)

and 173, 42 U.S.C. 7502(b)(6) and 7503). Furthermore,

revised SIPs for nonattainment areas with attainment date

extensions beyond 1982, i.e., those areas that had not

attained the NAAQS for photochemical oxidants or carbon

monoxide, had to establish schedules for implementing

inspection and maintenance programs for motor vehicles.

Section 172(b)(11)(B), 42 U.S.C. 7502(b)(11)(B).

4

2. Shortly after enactment of the 1977 amendments,

EPA offered guidance to assist its regional offices and the

states in preparing and reviewing the necessary nonattain-

ment designations under the new Section 107(d). The guide-

lines noted that ozone! nonattainment areas shouid be of

sufficient size to include most of the sources of significant

impact and thus to allow unified treatment of the entire

problem. See C.A. App. 19-23, 24-25, 26-27, 36-39.

EPA’s directive on the designation of nonattainment

areas for ozone reflected the scientific understanding of the

process by which ozone is formed and transported. Unlike

many other pollutants, ozone is not emitted directly into the

atmosphere from an air pollution source. Instead, ozone is

formed from substances known as ozone precursors, which

are generally produced as a result of either fuel combustion

or the use of organic chemicals in both stationary and

mobile sources. Ozone precursors are released into the

atmosphere and form ozone by undergoing photochemicai

oxidation reactions in the presence of sunlight. While in the

atmosphere, ozone and its precursors are transported by the

wind and can be carried considerable distances from the

point of origin without significant dilution. See C.A. App.

212-214. Numerous monitoring studies conducted in major

urban areas show that the point of maximum ozone concen-

tration develops at a distance downwind from the city core

area where the precursors originate. See C.A. App. 100-103,

104-118, 153-181, 217-229, 230-241, 250, 257-260. Because

ozone is not emitted directly from sources but is formed

'From 1971 to 1979, EPA applied an NAAQS for photochemical

oxidants. In early 1979, EPA relaxed this standard and restated it to

read exclusively in terms of ozone (rather than in terms of photochemi-

cal oxidants generally, which contain ozone as their major component).

See 44 Fed. Reg. 8202 (1979) (now codified at 40 C.F.R. 50.9 (1984)).

Ozone, which is a major component of smog, can cause serious respira-

tory problems.

5

from ozone precursors, and because ozone and ozone pre-

cursors are generally transported great distances, ozone

pollution presents a regional rather than a local problem.

3. On October 5, 1978, EPA approved Ohio’s status

designations for ozone pursuant to Section 107(d) of the

Clean Air Act. See 43 Fed. Reg. 45993 (1978). All of the

counties in the Cleveland urban area, including Lorain,

Cuyahoga, Lake, Medina, and Geauga Counties, were

included in the Greater Cleveland Intrastate Air Quality

Control Region and were classified as nonattainment for

ozone. See 43 Fed. Reg. 46015-46016 (1978).

On November 22, 1982, Ohio requested that EPA revise

the ozone designations of 46 counties, including Lorain, to

attainment of the NAAQS for ozone. Lorain County lies

immediately west and south of Cuyahoga County, in which

the City of Cleveland is located; Cuyahoga County is desig-

nated nonattainment for ozone, and was not sought to be

redesignated by Ohio’s request. During the summer (when

ozone formation is greatest), winds frequently originate

from the southwest and thus blow from Lorain County into

Cuyahoga and other counties in the Cleveland urban area.

On August 10, 1983, EPA published a notice of proposed

rulemaking on Ohio’s request for redesignation. See 48 Fed.

Reg. 36275. In seeking public comment on EPA’s review of

the State’s request, the notice proposed to approve the

attainment designation for 36 counties and to retain the

nonattainment redesignation for ten counties, including

Lorain. EPA stated that while air quality data did not

establish a violation of the ozone NAAQS in Lorain

County, emissions of ozone precursors in the county

represent a substantial portion of such emissions in the

Cleveland urban nonattainment area and have a significant

impact on ozone levels in Cuyahoga and other counties in

the downwind Cleveland urban area for which the ozone

6

NAAQS had not been met. See 48 Fed. Reg. 36272 (1983).

On that basis, EPA proposed that Lorain County should

remain nonattainment for ozone.

Following public notice and comment, EPA took final

action approving Ohio’s redesignation of 37 counties as

attainment for ozone and disapproving the State’s request

to redesignate nine other counties, including Lorain. See 49

Fed. Reg. 24124 (1984) (Pet. App. A15-A28). In its com-

ments on the proposed rulemaking, Ohio conceded that

emissions from Lorain County contribute to ozone concen-

trations in the Cleveland area that exceed the NAAQS (id.

at A4).

4. The court of appeals denied Ohio’s petition for review

ard upheld EPA’s decision not to redesignate Lorain

County as aitainment for ozone (Pet. App. Al-A13). The

court first held that EPA had acted within its statutory

authority in defining a nonattainment area for ozone to be

the urban area that includes both the locations that exceed

the NAAQS and the locations that are the origin for a

substantia! portion of the ozone pollutants (id. at A8-A13).

Relying on Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837

(1984), the court found that the Act did not express a

definition of the relevant “area” for nonattainment pur-

poses and that EPA’s position was based on a reasonable

construction of the statute:

It appears a permissible exercise of this authority [to

pass upon redesignation requests] for EPA to deny

redesignation with respect to a component of a non-

attainment area which produced a substantial portion

of the area’s pollution even though the air within that

component tests at an acceptable level. If it were other-

wise, the fortuitous circumstance that pollutants and

precursors emitted within a county are moved by

abe

7

prevailing winds to a neighboring county would deprive

EPA of the tools Congress provided for attacking pol-

lution in the area of which the county is logically a part.

Pet. App. A10-AI1.

The court of appeals also concluded that under this

standard EPA had properly retained Lorain County in the

Cleveland urban nonattainment area. As the court ex-

plained, the record establishes that significant quantities of

ozone precursors are emitted from sources in Lorain

County; that tests in a number of urban areas show th2

ozone precursors are carried long distances in the atmos-

phere and then are converted to ozone in that distant loca-

tion; that meterological data in the record demonstrate that

during the peak ozone periods the prevailing winds blow

from Lorain County into Cuyahoga and other counties that

have not achieved the NAAQS; and that Ohio conceded

that pollutants from Lorain County contribute to Cleve-

land’s ozone problem (Pet. App. A7-A8, A13). Finally, the

court found that it was not arbitrary for EPA to redesignate

Medina County but net Lorain County since, in contrast to

heavily industrialized Lorain, Medina is a largely rural area

that contains only scattered sources of pollution and has

insignificant levels of emissions (id. at A13).

Judge Wellford concurred. While joining the majority’s

“able analysis of the issues in this case,” he wrote “separ-

ately only to bespeak my dissatisfaction with EPA’s failure

to conduct measurements of the wind-factor effect in the

Cleveland area of emissions from Lorain County,” which

“would certainly have made this case less difficult in dispo-

sition” (Pet. App. Al4).

ARGUMENT

1. Ohio contends (Pet. 1i-16) that EPA’s denial of its

request to redesignate Lorain County to attainment status

was inconsistent with the Clean Air Act. The court of

8

appeals correctly rejected Ohio’s argument, and this ruling

does not conflict with any decision of this Court or of any

other court of appeals. Accordingly, further review is not

warranted.

In Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984),

this Court recently set forth the standard for judicial review

of an agency’s interpretation of a statute that it administers

(467 U.S. at 842-843 (footnotes omitted)):

First, always, is the question whether Congress has

directly spoken to the precise question at issue. If the

intent of Congress is clear, that is the end of the matter;

for the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress. If,

however, the court determines Congress has not directly

addressed the precise question at issue, the court does

not simply impose its own construction on the statute,

as would be necessary in the absence of an administra-

tive interpretation. Rather, if the statute is silent or

ambiguous with respect to the specific issue, the ques-

tion for the court is whether the agency’s answer is

based on a permissible construction of the statute.

In applying this standard, the reviewing “court need not

conclude that the agency construction was the only one it

permissibly could have adopted to uphold the construction,

or even the reading the court would have reached if the

question initially had arisen in a judicial proceeding” (467

U.S. at 843 n.11); rather, it is enough that the agency’s

interpretation “is a reasonable one” (467 U.S. at 845). And

“the principle of deference to administrative interpreta-

tions,” which accords “considerable weight” to the agency’s

construction (467 U.S. at 844), has especial upplication to

statutes like the Clean Air Act that are “lengthy, detailed,

technical, [and] complex” (467 U.S. at 848). See also, e.g.,

Chemical Manufacturers Assn v. NRDC, No. 83-1013

(Feb. 27, 1985), slip op. 8-9.

9

As the court of appeals correctly recognized, the Clean

Air Act “does not speak directly to the precise question”

presented in this case (Pet. App. A9). Nothing in the Act

requires that each individual county in an urban area be

considered separately and in isolation in determining

whether compliance with an NAAQS has been achieved.

Nor does the statute require EPA to ignore the fact that

ozone and ozone precursors in one county are transported

into other counties that exceed the NAAQS for ozone.

Ohio argues that Section 107(d)(1) of the Clean Air Act,

42 U.S.C. 7407(d)(1), requires EPA to redesignate a county

as attainment if the air quality in the county meets the

NAAQS. However, Section 107(d)(1)—which refers to “air

quality control regions, or portions thereof, * * * which

* * * have ambient air quality levels better than [the

NAAQS]”—does not mention counties or otherwise iden-

tify the “portion{]” of an air quality control region that EPA

should consider in its designation of attainment. Likewise,

the definition of “nonattainment area” in Section 171(2), 42

U.S.C. 7501(2), upon which Ohio also relies, does “not

directly deal[] with the question posed by this appeal” (Pet.

App. A10). That provision defines what is meant by “non-

attainment” but does not specify the “area” for which the

nonattainment determination is to be made. Cf. Chevron

U.S.A., 467 U.S. at 860 (definition of “major stationary

source” addresses the meaning of “major” but not of “sta-

tionary source”).

Ohio also complains about the pollution control require-

ments it must meet under EPA’s construction and objects

that they “may or may not be the most efficient and effective

means of controlling emissions which contribute to the

formation of ozone” (Pet. 14). As the court of appeals

explained (Pet. App. A10-A11), however, it was reasonable

10

for EPA to deny redesignation with respect to a com-

ponent of a nonattainment area which produced a

substantial portion of the area’s pollution even though

the air within that component tests at an acceptable

level. If it were otherwise, the fortuitous circumstance

that pollutants and precursors emitted within a county

are moved by prevailing winds to a neighboring county

would deprive EPA of the tools Congress provided for

attacking pollution in the area of which the county is

logically a part.

In effect, Ohio seeks to challenge the pollution control

requirements of the Clean Air Act and the desirability of

EPA’s chosen means for implementing the statutory pro-

gram. This argument, which “really centers on the wisdom

of the agency’s policy, * * * must fail” (Chevron U.S.A.,

467 U.S. at 866).

The decision below is also consistent with the decisions of

other courts of appeals on this issue. In Jllinois State

Chamber of Commerce v. EPA, 775 F.2d 1141 (7th Cir.

1985) (Pet. App. A29-A62), the court recognized that

EPA’s approach was within its statutory authority and

reasonably effectuated the purposes of the Clean Air Act:

The current state of scientific knowledge suggests that

it would be worse than foolish to start with geographi-

cally small areas, for ozone, and then base the attain-

ment status of each area on the monitoring of ozone

within that area. Attainment and nonattainment are

meant to reflect the contribution of an area to the

pollution problem; and perhaps the worst way to

determine the contribution of a small area to the ozone

problem is to measure for ozone within the area itself.

It cannot have been the intention of Congress that

EPA choose the worst possible way to measure for the

production of pollutants * * *.

aE aaa eT te Bg

[C]ertain controls apply to nonattainment areas by

operation of the statute. It is essential to the success of

the Clean Air Act that these controls apply in the

appropriate areas, and we refuse to construe the law in

such a way that the controls will apply to areas that

suffer from but do not produce ozone pollution but not

to areas that produce but do not suffer from such

pollution.

Pet. App. A45-A46, A48-A49. Similarly, in Western Oil &

Gas Ass'n v. EPA, 767 F.2d 603 (9th Cir. 1985), the court

concluded that the Clean Air Act “provide[s] for considera-

ble EPA discretion in designating area boundaries large

enough to achieve the purposes which underlie the classifi-

cation scheme’ (767 F.2d at 606), and that it was “common

sense” and not “in excess of statutory authority” (767 F.2d

at 607) for EPA to include with the nonattainment area the

sources of ozone precursors that contribute to the pollution

problem in the urban region.‘

2. Ohio also contends (Pet. 6-10) that EPA’s denial of

redesignation in this case was not adequately supported by

the rulemaking record. However, as Ohio’s discussion itself

makes clear, the standard for judicial review of agency

decisions is well settled, and the question whether the court

of appeals properly applied that standard in this case pre-

sents only a f*~*bound issue that does not warrant the grant

*Ohio’s asserted grounds (Pet. 15 n.6) for distinguishing Western Oil

& Gas Ass'n are unavailing. First, the fact that that case involved an

initial designation rather than a redesignation is simply irrelevant,

since, by Ohio’s own admission (Pet. 12), the same standards apply to

both deverminations. Furthermore, the fact that the state supported

EPA’s designation in that case does not advance Ohio’s argument that

the statute on its face requires a county meeting the NAAQS to be

designated as attainment regardless of its contribution to pollution

problems in the rest of the urban area.

12

of certiorari. See, e.g., American Textile Manufacturers

Inst. v. Donovan, 452 U.S. 490, 523 (1981); Mobil Oil

Corp. v. FPC, 417 U.S. 283, 310 (1974); Universal Camera

Corp. v. NLRB, 340 U.S. 474, 491 (1951).

In any event, the court of appeals correctly upheld EPA’s

determination. The rulemaking record demonstrates that

significant quantities of ozone precursors are emitted from

sources in Lorain County and that the prevailing winds

blow from Lorain to Cuvahoga and other counties during

the peak ozone season (Pet. App. A8). In addition, studies

in other urban areas show that ozone precursors are carried

long distances in the atmosphere before they are converted

into ozone (id. at Al3); as the court of appeals found, these

tests “were sufficiently similar to form a reliable basis for

concluding that the same condition would occur in Cleve-

land” (ibid.). And it is undisputed that Cuyahoga County—

for which Ohio did not even seek redesignation—is out of

compliance with the ozone NAAQS (id. at A3, A11). Based

on these factors, the court of appeals properly concluded

that “[t]he technical materials in this record support the

conclusion that the contribution of Lorain County’s emis-

sions to the Cleveland ozone problem is significant” (id. at

A13). In fact, “Ohio admitted on the record that emissions

from Lorain [C]Jounty contribute to the ozone concentra-

tions in the Cleveland area” (ibid.), which by itself serves to

establish that EPA did not act in an arbitrary and unsup-

ported fashion.

Ohio argues (Pet. 10) that the record was inadequate

because the studies on the transportation of ozone precur-

sors and the formation of ozone did not specifically relate to

the Cleveland area. However, these studies were used here

for their treatment of general scientific principles and pro-

vided a reliable basis for applying their findings in this case

(Pet. App. A13); thus, “the fact that EPA did not conduct

measurements of the wind-factor effect in the Cleveland

13

area is [not] important” (ibid. ).5 Ohio further asserts (Pet. 9)

that it was irrational for EPA to redesignate Medina but not

Lorain County as attainment for ozone. The court of

appeals correctly rejected this assertion, noting that

“Lorain County is heavily industrialized while Medina

County is largely rural” and that “compared with the emis-

sions from Lorain County * * * those from Medina County

are insignificant” (Pet. App. A13).

Finally, contrary to Ohio’s contention (Pet. 5-8), the

decision below does not conflict with the Seventh Circuit’s

decision in Illinois State Chamber of Commerce v. EPA,

supra. In that case, a divided panel set aside EPA’s decision

not to redesignate certain counties in Illinois as attainment

for ozone on the ground that the agency had “not made

clear the rationale for its action” (Pet. App. A49). Accord-

ingly, the court remanded “for reconsideration by EPA and

for clarification of the grounds upon which it has dealt or

will deal with the Illinois request” (id. at A49-A50). Nothing

in Illinois State Chamber of Commerce suggests that the

- Seventh Circuit applied a different standard of review than

the one followed by the Sixth Circuit here,‘ and the court’s

remand for clarification of that record does not conflict

with the decision below that the entirely distinct record in

this case was adequate to sustain EPA’s action. Ohio’s

claimed conflict represents nothing more than the applica-

tion of settled legal standards to the different factual

records in the two cases.

3Ohio also relies on the concurring opinion of Judge Wellford, who

expressed his belief that such measurements “would certainly have

made this case less difficult in disposition” (Pet. App. Al4). Notwith-

standing his “dissatisfaction” (ibid.), however, Judge Wellford con-

curred in “the able analysis” (ibid.) and judgment of the court.

‘See also, e.g., Cerro Copper Products Co. v. Ruckelshaus, 766 F.2d

1060, 1066-1067 (7th Cir. 1985).

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F. HENRY Hasicut II

Assistant Attorney General

ROBERT L. KLARQUIST

ANNE S. ALMY

Attorneys

May 1986

DOJ-1986-05