Brief for the Respondent in Opposition — Appalachian Power Co. v. Environmental Protection Agency

Lilobroary FIL

SUPREME COURT, U. S.

APR 10 1974

No. 73-1038

Gu the Supreme Court of the United States

OcToBER TERM, 1973

APPALACHIAN POWER COMPANY, ET AL., PETITIONERS

Uv.

IENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ROBERT H. BORK,

Solicitor General,

WALLACE H. JOHNSON,

Assistant Altorney General,

EDMUND B. CLARK,

THOMAS C. LEE,

Attorneys,

Department of Justice,

Washington, D.C. 20530,

Jn the Supreme Gourt of the United States

Ocrover Tena, 1973

No. 73-1058

APPALACHIAN Powrn COMPANY, ET AL. PETITIONERS

u.

[NVIRONMENTAL Prorecrion AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion ef the court of appeals (Pet. App.

la 26a) is reported at 486 F.2d 427.

JURISDICTION

The judgment of the court ef appeals was entered

on September 10, 1973. A timely petition for rehear-

ing Was denied on October 3. 1973 CPet. App. 27a).

The petition for a writ ef certiorari was filed on Janu-

ary 2, 1974. The jurisdiction of this Court is inveked

under 28 ULS.C. 125401).

STATUTES INVOLVED

Section 111 of the Clean Air Act, as added, 84 Stat.

L683, 42 U.S.C. 1857¢—6, and Sections 101 and 102 of the

(1)

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National Environmental Policy Act of 1969, 83 Stat.

852, 853, 42 U.S.C. 4331 and 4332, are set forth in the

appendix to the petition at pages 28a-38a.

QUESTIONS PRESENTED

1. Whether the court of appeals properly concluded

that “the record evidence supports the conclusion that

[the Environmental Protection Agency’s standards of

performanee for new fossil fuel-tired steam generators |

are the result of reasoned decision-making.”

2. Whether the Environmental Protection Agency

is required to prepare and publish an environmental

impact statement, pursuant to Section 102(2)(C) of

the National Environmental Poliey Act, 42 U.S.C.

4332(2)(C), prior to promulgating new source emission

standards as required by Section ILL of the Clean

Air Act, 42 U.S.C. Ls57e—-6.

STATEMENT

Section [LL of the Clean Air Act, 42 U.S.C. 1857¢—

6, provides a system of regulation of emissions of air

pollutants from “new stationary sources.’ These new

installations are to be operated. under the terms of

' The definitions in this Section provide (42 U.S.C. ls57e-

Hila)):

“(2) The term ‘new source’ means any stationary source.

the construction or modification of which is commenced after

the publication of regulations (or. if earlier, proposed regula-

tions) prescribing a standard of performance under this

section which will be applicable to such source.

“(3) The term ‘stationary source’ means any building. strue-

ture, facility, or installation which emits or may emit any air

pollutant.”

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this Section. in such a manner that their emissions of

pollutants will not exceed “standards of performance”

developed for and applied to defined categories * of

these “sources” by the Environmental Protection

Ageney (EPA). The manner in which the EPA estab-

lishes these “standards of performance” and the time-

table for their development are also specified.’

Congress defined “standards of performance” as

follows (Section T1(a)(1)). 42 U.S.C. 1857e-6(a)

(1)):

The term “standard of performance” means

a standard for emissions of air pollutants which

742 TIS.C. 185Te-61b) (2) provides: “The Administrator may

distinguish among classes, types and sizes within categories of

new sources for the purpose of establishing such standards.~

42 US.C. UssTe-6¢b)11) provide: “(A) The Administrator

shall. within % days after December 31. 1970 [the date of enact-

ment of the Clean Air Amendments of 1970]. publish (and from

time to time thereafter shall revise). a list of categories of sta-

tionary sources. He shall include a category of sources in such list

if he determines it may contribute significantly to air pollution

which causes or contributes to the endangerment of public health

or welfare.

“(B) Within 120 days after the inclusion of a category

of stationary sources in a list under subparagraph (A). the

Administrator shall propose regulations. establishing Federal

standards of performance for new sources within such category.

The Administrator shall afford interested persons an oppor-

tunity for written comment on such proposed regulations. After

considering such comments, he shall promulgate. within 90

days after such publication. such standards with such modifi-

cations as he deems appropriate. The Administrator may, from

time to time. revise such standards following the procedure

required by this subsection for promulgation of such standards.

Standards of performance or revisions thereof shall become

effective upon promulgation.”

OPTI MNO NT MAN MD MLO ORY CREME R ED AYE I EMA SHY TEN

Pr at eae re - : én Ve et i OT A REY

TD Sl A OEE Oe eS

reflects the degree of emission linutation achiev-

able through the application of the best system

of emission reduction which (taking into ac-

count the cost of achieving such reduction) the

Administrator determines has been adequately

demonstrated.

On August 17, 1971, the Administrater proposed

new source performance standards for tive categories

of sources. 36 Fed. Reg. 15704, App. 2. After the

prescribed period for public comment, the Adminis-

trator promulgated final standards which were effec-

tive upon publication (December 23. 1971). 36 Fed.

Reg. 24876, App. 225. The petitioners instituted a pro-

ceeding in the court ef appeals * to review the stand-

ards of performance for one of the categories of new

sources, fossil fuel-fired steam generators. 40 CFR.

Part 60, Subpart D (App. 230-235). The court of

appeals upheld inmost of the standards against peti-

tioners’ contentions. finding that “the record evidence

supports the conclusion that they are the result of

reasoned decision-making" (Pet. App. 23a-24a), but

remanded the case to the ageney for additional consid-

eration and explanation of certain aspects of these

standards.°

*Section 307(b) (1). fz U.S.C. 1s85Th-Scboc 1). provides for

initial review of these standards by the Court of Appeals for

the District of Columbia Circuit.

Specifically remanded for further consideration were the

opacity standard for particulate matter (40 C.F.R. 6042(b).

App. 231) and the standard for sulfur dioxide (40 C.F.R. 60.45,

App. 231) insofar as the record did not show that the Admin-

istrator had fully considered the significant solid waste disposal

problem which, the record revealed, could emanate from appli-

cation of the control technology relied on by the ageney as a

partial basis for the standard.

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ARGUMENT

1. The court of appeals remanded the sulfur dioxide

standards to EPA to consider further the environmen-

tal effects of disposing of the hypoduet which results

from the technology on which the standards were

based. Petitioners nonetheless argue that this decision

should now he reviewed by this Court because petition-

ers believe that there are additional flaws in the data

supporting the standards (Pet. 15-20). The court of

appeals found (Pet. App. 28a-24a) :

Reviewing the coal-fired steam generator

standards promulgated for particulate matter,

sulfur dioxide. and nitrogen oxides, see 40

C.F.R. § 60.40 ef sey., and subjecting them to the

various tests and scopes of inquiry discussed

above, we find that with but ene exception the

record evidence supports the conclusion that

they are the result of reasoned decision-making.

The evidence, including tests of prototype and

full-scale control systems, considerations of

available fuel supplies. literature sourees, and

documentation of manufacturer guarantees and

expectations, convinces us that the systems pro-

posed are adequately demonstrated, that cost

has been taken into consideration, and that the

emission standards are achievable. [Footnotes

omitted. |

This reasoned conclusion of the court of appeals

fully complied with this Court's directions in Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402, 415,

419, that the review of such administrative decisions

should be a “thorough, probing, in-depth review,” a

“substantial inquiry” on the “whole record.” And, in

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any event, further review at the present interlocutory

stage of the case would be unwarranted.

2. Petitioners urge as an additional ground for grant-

ing of the writ “the continuing controversy over the

vumbient air quality standards” (Pet. 20-25). The new

souree performance standards of Section 111 do not

bear any direct relationship to the national ambient

air quality standards of Section 109, 42 U.S.C. 1857¢-

4, which are to be inyplemented by plans adopted pur-

suinnt to Section 110, 42 U.S.C. 1857¢—5. As petitioners

acknowledge, “tetaission standards are based on a best

technology requirement rather than the achievement

of the ambient air standards” ( Pet. 20-21). Of course

the emission standards facilitate achieving and main-

taining the national ambient air quality standards, but

there is no quantitative relationship between the two

types of standards. Hence, petitioners” argument re-

carding the national ambient air quality standard is

irrelevant te their challenge here to the emission

standards.’

3. The court of appeals correctly held that EPA

Was not required by the National Environmental Pol-

icy Act to file an environmental impact statement he-

fore adopting these standards. In Portland Cement

Association - Ruche Ishuns, 486 F.2d 379 (CLA. D.C.).

the court ef appeals extensively examined this ques-

“The argument seems also to be at odds with petitioners’

earlier acknowledgement of the purpose of the new source

standards. “to place all new sources of pollution on an equal

footing by assuring that they not be located on the basis of

which states had the highest air quality and thus the most

lenient emission limitations in their implementation plans” (Pet.

+: see also Pet. 5-6.n.8).

‘

tion and decided that, because Section LIL of the

Clean Air Act “requires the functional equivalent of

a NEPA impact statement.” the procedures of NEDA

need not be followed. 486 F.2d at 384. Netably, the re-

mand of the sulfur dioxide standards in this case

required EPA to consider and explain the “eounter

productive environmental effects of the system.” which

the court found had been inadequately explained in

the standards (Pet. App. 25a).

Moreover, all the courts of appeals which have con-

sidered the question have held that EPA need not

prepare environmental impact statements in connec-

tion with its regulatory activities. Aneconda Com pairy

v. Ruckelshaus, 482 F.2d 1301 (CLA. 10): Appalachian

Power Co. ve Lnvivonmental Protection Ayoucy, 407

F.2d 495 (CLA. 4): Duquesne Light Co. ve Bnviron-

mental Protection Agency 481 F.2d 1 (CLA. 3): Getty

Oil Cow vy. Ruckelshaus- 467 F.2d 349- 359 (CLA. 3)- cer-

tiorari denied, 409 U.S. 1125: Buckeye Power, Ine. v.

Environmental Protection Agcoucy, 481 F.2d 162 (CLA.

6: Environmental Defense Fund, Ine. v. Ruviroumen-

tal Protection Agconey, 489 F.2d 1247 (CLA. DCL): Lie

ternational Harvester Company V. Ruckelshaus, 478 FP.

2d 615 (CLA. DCL). No court of appeals has seen fit te

hobble the actions of EPA, whose mission is protection

of the environment, with procedures designed for eiv-

ing other federal agencies sufficient pause for considera-

tion of environmental factors prior to undertaking

projects possibly damaging to the environment. As the

Ss

courts have held, EPA has its environmental mandate

codified in its organic aets, including the Clean Air

Act.

CONCLUSION

For the foregoing reasons, the petition fora writ of

certiorari should be denied.

Respectfully submitted.

Roserr H. Bork.

Solicitor General.

Waitace H. JoHnson,

Assistant Attorney General.

EpmMUuNpD B. CrLark,

THomas C. LEE,

Atforneys.

Apri. 1974.

GO eERNMUNT PRINTING CFFICE: 1974