Petition for Writ of Certiorari — Central Arizona Water Conservation District v. Environmental Protection Agency

Supreme Court brief1993

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CENTRAL ARIZONA WATER CONSERVATION DISTRICT,

CENTRAL ARIZONA IRRIGATION AND DRAINAGE DISTRICT,

MARICOPA-STANFIELD IRRIGATION & DRAINAGE DISTRICT,

and NEW MAGMA IRRIGATION & DRAINAGE DISTRICT, Arizona

Municipal corporations,

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTRAL ARIZONA WATER CONSERVATION DISTRICT'S

PETITION FOR WRIT OF CERTIORARI

Marvin S. Cohen, Esq.*

Leslie A. McCarthy, Esq.

SACKS, TIERNEY & KASEN

2929 N. Central, 14th Floor

Phoenix, Arizona 85012-2742

Telephone: (602) 279-4900

Counsel of Record *

Douglas K. Miller, Esq.

CENTRAL ARIZONA WATER

CONSERVATION DISTRICT

23636 North 7th Street

Phoenix, Arizona 85024

Telephone: (602) 870-2333

Attorneys for Petitioner Central

Arizona Water Conservation

District

Robert S. Lynch, Esq.

2001 North Third Street, Suite 204

Phoenix, Arizona 85004-1472

Telephone: (602) 254-5908

Attorney for Petitioners Central

Arizona Irrigation and Drainage

District and Maricopa-Stanfield

Irrigation & Drainage District

William D. Baker, Esq.

ELLIS, BAKER, CLARK &

PORTER, P.C.

4444 North 32nd Street, Suite 200

Phoenix, Arizona 85018

Telephone: (602) 956-8878

Attorneys for Petitioner New Magma

Irrigation & Drainage District

QUESTION PRESENTED

Did the EPA’s Final Rule imposing one billion dollars of

emissions control requirements upon the Navajo Generating Station

to allegedly reduce visibility impairment in the Grand Canyon

violate the visibility regulations EPA promulgated under the Clean

Air Act in 1980?

LIST OF PARTIES

The parties to the proceedings below were petitioner Central ;

Arizona Water Conservation District, and four irrigation districts,’

respondent United States Environmental Protection Agency

("EPA"), and respondent-intervenors Salt River Project Agricultural

Improvement and Power District ("SRP"), Grand Canyon Trust and

The Wilderness Society.

The respondent before this Court is the United States

Environmental Protection Agency.

Petitioners Central Arizona Water Conservation District,

Central Arizona Irrigation and Drainage District, Maricopa-Stanfield

Irrigation and Drainage District and New Magma Irrigation and

Drainage District (collectively, "CAWCD" or "Petitioner") are

political subdivisions of the State of Arizona and have no parent

companies or subsidiaries to list pursuant to Rule 29.1.

' Central Arizona Irrigation and Drainage District, Maricopa-Stanfield

Irrigation and Drainage District, New Magma Irrigation and Drainage District, and

Harquahala Valley Irrigation District. Harquahala Valley Irrigation District is no

longer a Central Arizona Project subcontractor and is therefore not a party to this

petition for a writ of certiorari.

iii

TABLE OF CONTENTS

QUESTION PRESENTED

EE Eee ee a ii

OPINIONS BELOW

JURISDICTION

I. The Ninth Circuit’s Decision Allows

the EPA To Ignore Its Own Regulations

and Leaves the Application of the

Clean Air Act in a State of

ne ks 4s 6 aks 6 6 eas 11

A. The Ninth Circuit’s decision is

inconsistent with the decisions

of other circuits in related

OE ee a 12

B. The decision below is inconsistent

with the EPA’s prior

interpretation and application of

OE eee eee 17

Il. The EPA Failed to Amend Its Phase I

Regulations In Accordance With

Notice and Comment Procedures

eS eS. 10

CONCLUSION

TABLE OF AUTHORITIES

CASES Page

American Meat Institute v. EPA,

ee ee ee eo ke eae a cae eee kes 17

American Methyl Corp. v. EPA, 749 F.2d

Se es ee Se es ee ee ake eee e 17-18

Detroit Edison Co. v. EPA,

pe ae ee ee © ica ks Seek cn ee ee 8 ee 21

Environmental Defense Fund Inc. |

v. Environmental Protection Agency,

oi fe | a eer ree 21

Environmental Defense Fund Inc. v.

Goramch, 713 F.26 Gee @.C. Cow. 19963) .... ke ees 21

Marbury v. Madison, 5 U.S. 137,

tS Bee EE oe ice a oe ee ee 12

Motor Vehicle Manufacturer’s Assn

v. State Farm Mut. Auto Ins. Co.,

OOP Ue Oe CR ok os eb ao we oe 8 ole 9 kw oe 20

National Retired Teachers Ass’n v.

U.S. Postal Service, 430 F.Supp. 141

(D.C.D.C. 1977), affirmed 593 F.2d

Se Ce, as Sac ok ee ea es oe ba Sw 20

NLRB v. United Food and Commercial

Workers Union, 484 U.S. 112 (1987) ................ 17

PPG Industries, Inc. v. Harrison,

Gee © ae eee Ge Gr ED oa i a oe ee eee 17

Reuters Ltd. v. F.C.C., 781 F.2d 946

CEs Se SU io ee ee ee ee eee 11

State of Maine v. Thomas,

874 F.2d 883 (ist Cir.

PE ee es wiki dl oa alse: ack 7, 12, 14, 17, 19, 20, 21

State of Nevada v. Herrington,

ee ee Se I, OE oo on i CS ae ee ee 16

State of Vermont v. Thomas,

850 F.2d 99

i en re ea 2, '2, 43, Bh, OF

STATUTES

Ee ie CS eee a Oe es ee ee es 2

Oe ee Pe aa he ee ad met Soe 15, 17

ee Se Pe ee ek eee eRe eee 2, 3, 19

Re Wes Ee es oe eh aS 1, 2, 10, il, 14, 20

Cp eee es OO ve ek ee eee ee eee ees 3

RE ATIONS

ee Oe 6 ok Ale Kp ee oe 2,4

ee SE ee Kae Ewe 10, 11, 12

15, 16, 17, 18

Ce FR Sea area ers eee 6, 7,8

PG OO he 54k 5a Ale isl 3, 5, 6, 11, 15, 16

45 Fed. Reg. 34762 (May 22,

52 Fed. Reg. 7802 (March 12,

RE ee Coa rate praia sks ee eat ge eee ore ri SE

53 Fed. Reg. 35956 (September 15,

Eee hale kas ek ee ek Me ees ee 2,6

54 Fed. Reg. 36948 (September 5,

RE Ga ee ee ee tak aR Ahk sole nk ee ee 9

56 Fed. Reg. 5173 (February 8, 1991) ............. 9, 10

56 Fed. Reg. 50172 (October 3,

ORR ere ee eee 1, 2, 7, 8, 9, 10, 16

MISCELLANEOUS |

"Protecting Visibility: An EPA Report to |

Congress" (1979), EPA Docket

IIE iss os bes oko wae RS ie ee 6

User’s Manual For the Plume Visibility

Model (PLUVUE), EPA Docket

A-79-40, V-A-6

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CENTRAL ARIZONA WATER CONSERVATION DISTRICT,

et al.,

Petitioners,

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner Central Arizona Water Conservation District, ef

al. respectfully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals for the

Ninth Circuit, entered in the above-entitled proceedings on March

25, 1993.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth Circuit is

reported at 990 F.2d 1531 (9th Cir. 1993) and is reprinted in the

Appendix hereto.

The Environmental Protection Agency’s Final Rule entitled

"Approval and Promulgation of Implementation Plans: Revision of

Visibility FIP for Arizona" was reported at 56 Fed. Reg. 50172

(October 3, 1991) (the “Final Rule") and is reprinted in the

Appendix hereto, at pages | through 57.

JURISDICTION

On December 2, 1991, invoking jurisdiction under 42 U.S.C.

§ 7607(b)(1), Clean Air Act ("CAA") § 307(b)(1), the Petitioner

filed a petition for review seeking reversal or remand of the Final

Rule.

On March 25, 1993 the Ninth Circuit entered a judgment and

an opinion holding that the EPA had acted within its statutory and

regulatory authority when it promulgated the Final Rule. No

petition for rehearing was filed.

The jurisdiction of this Court to review the judgment of the

Ninth Circuit is invoked under 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

42 U.S.C. § 7491, Visibility Protection for Class I Areas [CAA

§ 169A]

42 U.S.C. § 7607, Administrative Proceedings and Judicial Review

[CAA § 307]

56 Fed. Reg. 50172 (October 3, 1991): "Approval and

Promulgation of Implementation Plans: Revision of the Visibility

FIP for Arizona”

53 Fed. Reg. 35956 (September 15, 1988): "Assessment of

Visibility Impairments and Integral Vista Identification: Proposed

Rule"

52 Fed. Reg. 7802 (March 12, 1987): "State Implementation Plans

for Visibility Long-Term Strategies, Integral Vistas and

Implementation Control Strategies: Proposed Rulemaking"

45 Fed. Reg. 80084 (December 2, 1980): "Visibility Protection for

Federal Class I Areas: Final Rulemaking"

45 Fed. Reg. 34762 (May 22, 1980): "Visibility Protection for

Federal Class I Areas: Proposed Rulemaking"

40 C.F.R. § 51.300 et seq.

40 C.F.R. § 52.145

40 C.F.R. § 52.26

Pursuant to Supreme Court Rule 14.1(f), due to their length,

the pertinent text of the above-cited statutes and regulations is

reproduced in the Appendix hereto.

STATEMENT OF THE CASE

On October 3, 1991, the EPA promulgated a Final Rule

requiring a 90% reduction in sulfur dioxide (SO,) emissions at the

Navajo Generating Station ("Navajo" or "NGS") in northern

Arizona, at an estimated cost of $89,600,000 per year (an

approximate present value cost of $1 billion).

Navajo is a coal-fired electric generating station located seven

miles east of Page, Arizona, just south of Lake Powell. Petitioner

CAWCD is the local Arizona government entity responsible for

operating, maintaining, and repaying the reimbursable costs of the

Central Arizona Project ("CAP"). The CAP is a federal

reclamation project established pursuant to the Colorado River Basin

Project Act to provide Colorado River water to central and southern

Arizona. 43 U.S.C. §§ 1501, et seg. The primary source of

electricity for pumping CAP water is the United States Bureau of

Reclamation’s ("Reclamation’s") 24.3% share of the output of

Navajo. CAWCD is thus responsible for repaying most of

Reclamation’s 24.3% share of the costs of the emissions controls

imposed by the Final Rule. CAWCD has estimated that the Final

Rule will result in an increase of approximately $70 million in

CAWCD’s capital cost repayment obligation for the CAP and an

increase of approximately $7.5 million per year in the costs of

operating the CAP. The emissions controls imposed by the Final

Rule will allegedly improve winter average visibility in the Grand

Canyon National Park by 7%.

The EPA’s authority to impose emissions controls on Navajo

was premised on Section 169A of the Clean Air Act, 42 U.S.C.

§ 7491. Section 169A directs the EPA to promulgate regulations

requiring states containing Class I areas (essentially, national parks,

among them the Grand Canyon) to amend their "state

implementation plans" to include "emission limits, schedules of

compliance and other measures as may be necessary to make

reasonable progress toward meeting the national goal" of remedying

any existing impairment of visibility in such areas resulting from

man-made pollution and preventing future impairment. CAA

§ 169A(a)(4) and (b)(1), 42 U.S.C. § 7491(a)(4) and (b)(1)

(Appendix, pp. 204 and 205).

The EPA adopted a phased approach to dealing with the

visibility problem when it promulgated regulations in 1980 in

response to Congress’s directive. Acknowledging that the complex

and sophisticated air quality monitoring techniques necessary to

evaluate the visibility benefits of regional haze controls had not yet

been developed, the EPA limited its 1980 regulations to visibility

impairment traceable by visual observation or other simple

monitoring techniques to a single source or small group of sources,

commonly known as "Phase I" visibility impairment. 45 Fed. Reg.

80084 at 80085 (December 2, 1980) (Appendix, p. 81); 40 C.F.R.

§ 51.300 et seq. (Appendix, p. 162); 45 Fed. Reg. 34762 at 34779

(May 22, 1980) (Appendix, p. 161). The adoption of Phase II

regulations dealing with the sources of regional haze was deferred.

Phase II regulations have not, as yet, been promulgated.

In the notice of proposed rulemaking for the 1980 Phase I

regulations, the EPA defined the distinction between Phase I and

Phase II visibility regulations as follows:

[T]he Agency is defining the scope of the Phase I

regulations by the term "reasonably attributable" which is

defined as attributable to a single source or group of

sources by visual observation or other monitoring

techniques. The key distinction between this Phase I

definition and future phases is by what means a source can

be identified.

45 Fed. Reg. 34762 at 34779 (emphasis added) (Appendix, p. 161).

This focus on the "means" by which "a source can be

identified" was incorporated into the final rulemaking. After stating

that present mathematical models and monitoring techniques showed

promise, the EPA nevertheless found that these techniques had to be

further evaluated "according to standard Agency procedures" before

their use could be required in a regulatory program. 45 Fed. Reg.

80084 at 80085 (Appendix, p. 81). The EPA then pointed out that

the origin of impairment caused by a single source or small group

of sources could, in some instances, be identified “without the use

of sophisticated analytical techniques. Simple monitoring techniques

such as visual observation (either ground based or with aircraft) can

often identify sources which contribute to the impairment." The

agency relied entirely on the "scientific and technical limitations" of

mathematical models and more sophisticated monitoring techniques

in restricting its Phase I regulatory program to the use of visual

observation and simple monitoring techniques. 45 Fed. Reg. 80084

at 80085 (Appendix, p. 81).

The regulatory distinction that EPA drew between Phase I and

II, which is based on the means by which a source can be identified,

is consistent with the EPA’s description of the “two types of air

pollution which reduce or impair visibility:

a eT

(1) Smoke, dust, colored gas plumes or layered haze

emitted from stacks which obscure the sky or horizon

and are relatable to a single source or a small group of

sources; and

(2) widespread, regionally homogeneous haze from a

multitude of sources which impairs visibility in every

direction over a large area."

Id. at 80085? (emphasis added) (Appendix, p. 80).

The Phase I regulations thus contemplated that, if simple

monitoring techniques such as visual observation (either ground-

based or with aircraft) or time-lapse photography could identify the

source of an impairment because the plume or haze emanating from

it could be followed into a Class I area, the source could be

regulated. 45 Fed. Reg. 80084 at 80085 (Appendix, p. 81). If not,

regulation had to be deferred, because visual observation and simple

monitoring (e.g., photography) were the only techniques found to

be reliable enough for regulatory decisions. Jd.

In its report entitled "Protecting Visibility: An EPA Report to

Congress" (1979), published shortly before the promulgation of the

1980 regulations, the EPA identified the following monitoring

techniques as appropriate for visibility monitoring programs in Class

I areas: human observation, integrating nephelometer, multi-

wavelength telephotometer, transmissometer and photography.

Docket A-79-40, II-A-5, pp. 3-2 through 3-6 (Appendix, pp. 221-

223). Nephelometer, telephotometer, and transmissometer optical

devices merely enhance the human eye. /d. See also 40 C.F.R.

§§ 52.26(c)(2), (c)(3) (1992) (Appendix, pp. 180, 181).°

"In implementing its Phase I regulations, the EPA has used the term "plume

blight" as shorthand for the first type of impairment and "regional haze" for the

second type. 52 Fed. Reg. 7802 (March 12, 1987) (Appendix, p. 66).

340 C.F.R. § 52.26(c) establishes that, when a state implementation plan has

been disapproved by the EPA (as in this case), the Administrator must monitor

visibility within each visibility protection area in the state to determine, inter alia,

"reasonably attributable visibility impairment caused by a source or a small group

of sources for that area." In doing so, the Administrator “shall use the following

as appropriate to monitor visibility within each such area: (i) photographic

cameras, (ii) fine particulate matter samplers, (iii) teleradiometers, (iv)

nephelometers, (v) human observation, or (vi) other appropriate technology."

Until it made its determination to regulate Navajo, the EPA had

relied exclusively on visual observation and simple monitoring

techniques in analyzing certifications of visibility impairment by

Federal Land Managers in other Class I areas.‘ For example, EPA

"reviewed the slides provided by the National Park Service [NPS]

to illustrate uniform haze in NPS managed lands. For the most

part, EPA could not determine that the impairment was reasonably

attributable." 52 Fed. Reg. 7802 at 7804 (March 12, 1987)

(emphasis added) (Appendix, p. 67). EPA thus concluded, "[S]ince

the regulations are not designed to address uniform or regional haze,

the EPA is proposing that BART [Best Available Retrofit

Technology] requirements or other control measures are unnecessary

at this time in the FIP’s [federal implementation plans] for 28

states." Id.

In connection with Voyageurs National Park in Minnesota, the

National Park Service ("Park Service") "installed an 8mm time-lapse

photographic system to view north across Kabetogama Lake."

"(T]he data . . . displayed no distinct, identifiable plumes entering

the Class I area. Thus, ARS concluded that no visibility

impairments in Voyageurs National Park could be presently traced

to specific sources." 53 Fed. Reg. 35956 at 35958 (September 15,

1988) (emphasis added) (Appendix, p. 60). Similarly, EPA noted

“that NPS is deploying in the Saguaro Wilderness a camera system"

to determine whether visibility impairment could be attributed to a

specific source. Id.

EPA found it unnecessary to revise the Arizona FIP in

connection with the Petrified Forest National Park because

photographic monitoring did not "display identifiable plumes” that

were "identifiable or traceable to a specific source." 53 Fed. Reg.

35956 at 35958 (Appendix, p. 61). Even when a "yellowish plume"

40 C.F.R. § 52.26(c)(2), (c)(3) (Appendix, pp. 180, 181).

“The Phase | regulations provide for Federal Land Managers ("FLM") to

identify whether visibility impairment exists in Class I federal areas. Pursuant to

40 C.F.R. § 51.302(c)(4)(i), when an FLM certifies that a Class | federal area in

a state contains Phase I visibility impairment, that state must identify each existing

stationary facility which may “reasonably be anticipated to cause or contribute” to

any such impairment which is “reasonably attributable” to that existing stationary

facility and analyze for BART (Best Available Retrofit Technology) any facilities

so identified (Appendix, p. 170).

i ia i

was detectable when looking in the direction of a particular power

plant, the EPA concluded that the impact on the entire field of view

of the Brigantine Wilderness area would be small and would occur

infrequently, and that modification of the power plant would not

result in significant differences from existing conditions. 52 Fed.

Reg. 7802 at 7805 (March 12, 1987)° (Appendix, p. 68). The EPA

also addressed the FLM’s certification of impairment in Moosehorn

Wilderness as follows:

. . . [T]he EPA does not have adequate data to positively

identify these sources or to complete a BART analysis.

The EPA, in cooperation with the FLM is planning to

install photographic monitoring equipment in Moosehorn to

develop a data base for regulatory decision making.

(Emphasis added.) 52 Fed. Reg. 7802 at 7806 (Appendix,

p. 71).

On March 24, 1986, the Department of Interior sent a letter to

the EPA which certified that visibility impairment existed in the

Grand Canyon and identified SO, emissions from Navajo as a

probable source of impairment during the winter months. 56 Fed.

Reg. 50172 at 50173° (Appendix, p. 7).

Sulfur dioxide (SO,) is a colorless gas. It is not visible when

“emitted from stacks." Therefore, it does not cause visible plumes

and cannot give rise to plume blight. Only the chemical conversion

of SO, to sulfate (SO,) can affect visibility. This conversion

requires time, distance and conducive meteorological conditions.

The EPA recognized this fact when it described the scope of its

1980 Phase I regulations:

‘During the same time frame in which it was evaluating certifications of

visibility impairment by using only simple monitoring techniques as contemplated

by the Phase I regulations, the EPA also took the position in litigation that

regulation of regional haze in the absence of Phase II regulations was prohibited.

See State of Maine v. Thomas, 874 F.2d 883 (ist Cir. 1989); State of Vermont v.

Thomas, 850 F.2d 99 (2d Cir. 1988).

Under the Phase I regulations, following FLM certification of impairment,

a state (or the EPA, upon default by the state), is required to analyze for BART

any facility identified as a “reasonably attributable” source of the impairment. 40

C.F.R. 51.302(c)(4)(i) (Appendix, p. 170). If visibility impairment in the Grand

Canyon could be found to be “reasonably attributable” to Navajo, then the facility

would have to be analyzed for BART.

The pollutants of primary concern under this Phase I

program are particulate matter and NO,. Emissions of SO,

primarily contribute to regional haze which is beyond the

scope of this Phase I program.

45 Fed. Reg. 80084 at 80087 (Appendix, p. 86). A month before

it adopted its Phase I regulations, the EPA observed, in one of its

user’s manuals, that "sulfate formation is a long-range (greater than

100 Km), multiday phenomenon, not a near-source problem."’ The

BART Guidelines under the Phase I regulations confirmed that

emissions of sulfur dioxide, which contribute to regional haze, “will

be addressed in later phases."®

Following the FLM certification which identified Navajo as a

potential source of impairment, the Park Service interpreted data

gathered in a controversial monitoring experiment conducted in the

winter of 1987 (the "WHITEX" study) to attempt to determine

whether visibility impairment at the Grand Canyon could be deemed

to be reasonably attributable to Navajo. The WHITEX monitoring

study had involved the release of deuterated methane (CD,), an inert

tracer (i.e., a chemical not found in the ambient air), from the

stacks at Navajo in an attempt to correlate the CD, tracer to SO,

emissions from Navajo and to the sulfate that might later form from

the Navajo SO,. Using the WHITEX data, the Park Service applied

unproven and sophisticated linear regression analysis techniques,

TMBR (Tracer Mass Balance Regression) and DMB (Differential

Mass Balance), to attribute to Navajo a portion of the sulfates found

in the Grand Canyon during the experiment period. These

techniques had not been previously used to attribute secondary

aerosols, such as SO,, to sources of SOQ,.

Based entirely on the Park Service’s preliminary analysis of

WHITEX, the EPA issued a notice of proposed rulemaking on

September 5, 1989, finding that Navajo could reasonably be

anticipated to cause or contribute to visibility impairment during the

7User’s Manual For the Plume Visibility Model (PLUVUE), Docket A-79-40,

V-A-6, p. 33 (Appendix, p. 225).

* EPA Docket A-89-02A, II-A-1, p. 4. The BART Guidelines describe the

statutorily-required procedures to be followed when a source is identified as a

"reasonably attributable source of impairment." 56 Fed. Reg. 50172 at 50173

(Appendix p. 5).

eee

winter months in the Grand Canyon and that a BART analysis

should be conducted. 54 Fed. Reg. 36948 (September 5, 1989).

The EPA solicited comments on the merits of its preliminary

attribution determination.

SRP, its consultants, and others, including CAWCD, submitted

comments severely criticizing the analyses, methodologies and

conclusions contained in the Park Service reports on WHITEX.

Because of the scientific controversy over the Park Service

analysis of the WHITEX data, the National Research Council of the

National Academy of Science ("NAS") was asked by the

Department of the Interior to evaluate the Park Service WHITEX

report and other scientific evidence relevant to EPA’s preliminary

finding that wintertime visibility impairment in the Grand Canyon

was attributable to Navajo. 56 Fed. Reg. 5173 at 5179 (February

8, 1991).

The resulting report by the NAS (the "NAS Report") observed

that quantitative attribution of SO, to Navajo based on TMBR and

DMB was not possible.” The NAS Report further noted that the

literature regarding TMBR, a multiple linear regression (MLR)

technique, "does not contain convincing evidence" that it can be

used to apportion secondary species, such as SO,. As to DMB, the

NAS Report stated that this use of the MLR technique "appears to

be unprecedented in the source-apportionment literature." The NAS

Report concluded that the WHITEX data analysis precluded a

determination of the extent to which Navajo contributed to haze in

the Grand Canyon due "to problems with implementation and

interpretation of multiple linear regression models." Docket A-89-

02A, II-D-36, pp. 19, 21.

Despite the scientific controversy over the techniques,

methodologies and conclusions used by the EPA in making the

determination, the Final Rule, published on October 3, 1991,

proceeded to reaffirm the EPA’s earlier attribution finding. 56 Fed.

Reg. 50172 at 50177 (Appendix, pp. 19-20).

“The NAS Report concluded that while at some times during the study period,

Navajo contributed significantly to sulfate aerosol measurable at Hopi Point in the

Grand Canyon, the Park Service Report could not quantitatively determine the

fraction of sulfate aerosol and resultant haze attributable to Navajo emissions.

The EPA, recognizing its vast departure from prior applications

of its Phase I regulations, specifically limited the precedential effect

of its action, reasoning that:

... This is so because the outcome of this rulemaking has

been highly dependent upon facts and circumstances that

are unique to this proceeding and thus does not apply to

other cases. For example, the tracer studies and other

analyses contained in the WHITEX and NGSVS reports

that are key to a showing that impairment at GCNP is

traceable to NGS are not being approved for use in any

other rulemaking addressing other potential sources of

visibility impairment.

56 Fed. Reg. 50172 at 50184 (emphasis added) (Appendix, p. 44).

Following promulgation of the Final Rule, CAWCD timely

filed a petition for review of the EPA’s action. CAWCD invoked

the Ninth Circuit’s jurisdiction under 42 U.S.C. 7607(b)(1) to

review "the Administrator’s action in approving or promulgating

any implementation plan." (Appendix, p. 210.) Among its

challenges to the Final Rule, CAWCD argued that EPA had

exceeded its regulatory authority because it had relied on

sophisticated and complex modeling techniques in attributing

visibility impairment to Navajo, in direct contravention of its Phase

I regulations.

The Ninth Circuit, ignoring the EPA’s previous posture in

litigation and its historical interpretation and implementation of the

Phase I/Phase II distinction, concluded that "the Final Rule was

legitimately promulgated under Phase I regulations" directed at

“reasonably attributable” visibility impairment. (Opinion, p. 2730.)

The Court found that "reasonably attributable" was defined as

"attributable by visual observation or any other technique the State

deems appropriate" (40 C.F.R. § 51.301(s)) (Appendix, p. 167),

and that since the EPA was "standing in the shoes of the defaulting

State, it had wide discretion in selecting the techniques used."

(Opinion, p. 2732.) The Ninth Circuit denied CAWCD’s

petition for review.

REASONS FOR GRANTING WRIT

I. The Ninth Circuit’s Decision Allows the EPA To Ignore Its

n lati Leav Application of l

Air Act in a State of Confusion.

"A precept which lies at the foundation of the modern

administrative state is that agencies must abide by their rules and

regulations." Reuters Ltd. v. F.C.C., 781 F.2d 946 (D.C. Cir.

1986). The Ninth Circuit has manufactured a new set of criteria by

which the EPA, without an opportunity for public notice or

comment, may regulate visibility impairment in Class I areas. In

upholding the EPA’s imposition of emission controls at Navajo

based on technology and methodology which the EPA itself has

acknowledged are still inadequately developed for use in a

regulatory program dealing with visibility impairment, the court has

improperly extended the agency’s authority. Over a period of more

than eight years, the EPA limited the application of Phase I

regulations to sources identifiable by visual observation or simple

monitoring techniques. In this case, the EPA ad hoc reversed its

position and applied § 169A to a Phase II situation without first

promulgating Phase II regulations or evaluating the new techniques

used “according to standard agency procedures.""" The court has

thus condoned the EPA’s violation of its own regulations and the

EPA’s circumvention of the requirement that it adopt Phase II

regulations before regulating a source which cannot be identified by

visual observation or simple monitoring techniques.

‘The Ninth Circuit failed to note that the EPA’s responsibilities, after

disapproving a state implementation plan, were established by 40 C.F.R.

§ 52.26(c), not by § 51.301(s). Moreover, § 51.301(s) is only a guideline to the

states while § 52.26 is an enforceable provision of state implementation plans.

"45 Fed. Reg. 80084 at 80085 (Appendix, p. 81). In other contexts, EPA

has developed detailed procedures for the evaluation of monitoring and testing

techniques to be used to determine compliance with the requirements of the Clean

Air Act (see, e.g., 40 C.F.R. Part 53 (1992)), and has also adopted regulations to

assure regulatory consistency among its various Regions (see 40 C.F.R. Part 56

(1992)).

The EPA has been allowed to ignore its own rules, its

statements of policy concerning its rules and its prior application of

these rules in order to achieve, ad hoc, a desired result. If the

EPA’s action is sanctioned, our government will have been allowed

to violate one of the fundamental principles of democratic

institutions — to be "a government of laws, and not of men."

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 163 (1803). The

unprecedented expansion of the EPA’s 1980 Phase I regulations

should thus be addressed by this Court.

A. The Ninth Circuit’s decision is inconsistent w = the

isions of other circuits in rel r in

Not only is the position taken by the EPA and confirmed by the

Ninth Circuit inconsistent with the EPA’s Phase I regulations, it

directly contradicts the decisions reached, and indeed the EPA’s

Own posture, in prior related proceedings. In State of Vermont v.

Thomas, 850 F.2d 99 (2nd Cir. 1988), the Second Circuit

confirmed the EPA’s contention that the agency has no current

authority to regulate regional haze and that measures addressing

regional haze cannot be part of a federally enforceable

implementation plan. 850 F.2d at 103. The State of Vermont, the

petitioner in that case, had proposed to adopt a state implementation

plan aimed at emissions originating chiefly from out-of-state power

plants. The Vermont plan contained extensive technical analysis

demonstrating that the Lye Brook National Wilderness Area’s

visibility impairment was due primarily to sulfur dioxide pollution

originating from these power plants. 850 F.2d at 101. Vermont

argued that, while EPA’s 1980 regulations admittedly deferred

action on regional haze for future phases of the visibility program,

they were also intended to allow for the evolution of strategies for

combating regional haze as technologies improved. 850 F.2d at

103. The EPA strenuously disagreed, stating that sources

contributing to regional haze could simply not be regulated “until

such time as EPA decides to promulgate a national regional haze

program.” 850 F.2d at 102. The Second Circuit affirmed EPA’s

disapproval of the Vermont implementation plan and concluded, at

the EPA’s urging, that the EPA intended to limit the Phase I

regulation of visibility impairment exclusively to what the EPA

described as "plume blight.” 850 F.2d at 103.

The First Circuit reached the same conclusion in State of Maine

v. Thomas, 874 F.2d 883 (ist Cir. 1989). In State of Maine,

several states and various environmental groups sued the EPA to

compel it to promulgate the Phase II regional haze regulations it had

deferred adopting when it issued the 1980 Phase I regulations. The

court acknowledged, again at EPA’s urging, that the Phase I

regulations classify air pollution impairing visibility as either plume

blight ("[s]moke, dust, colored gas plumes, or layered haze... .

which obscures the sky or horizon and are relatable to a single

source or a small group of sources") or regional haze, and that the

EPA’s regulations treat the two categories separately. 45 Fed. Reg.

80084 at 80085 (Appendix, p. 80); State of Maine, 874 F.2d at 885.

While the question in State of Maine was whether the EPA’s

promise to promulgate Phase II regional haze regulations was

"final" for purposes of the court’s jurisdiction, the opinion makes

the essence and rationale of the Phase I regulations crystal clear:

Phase I represented EPA’s assessment of what might

reasonably be done in 1980. Its assessment of its Capacity

to understand the problem of regional haze went

unreviewed, as did its decision to bifurcate the visibility

problem (plume blight being treated one way, regional haze

another), because neither was challenged within the 60-day

period provided by Section 7607. ... [T]he decision to

postpone regional haze regulations “was based on an

extensive and published administrative record which

reflects citizen and agency concerns, the intent to defer,

and a rationale based on [the lack of adequate]

technological and scientific information."

874 F.2d at 886, quoting State of Maine v. Thomas, 690 F Supp. at

1111-12.

The court went on to note:

Here, EPA announced Phase | as a regulatory scheme,

fully explained and defended in the text Setting out the

regulations. Furthermore, the administrative proceedings

had directly addressed the possibility that regional haze

rules and orders might be delayed. To mince no words, the

decision to defer constituted a fully developed part of the

final action taken on the statutory mandate. Indeed, it is

no exaggeration to say that EPA announced this final action

— the phased approach — as its response to Congress’

command. Because a final action need not consist solely

of standard rules or orders, we agree "that EPA intended

to limit the [1980] regulations to plume blight." Vermont

v. Thomas, 850 F.2d 99, 103 (2d Cir. 1988). Nonetheless,

the final action taken has legal effect and establishes

procedural requirements, such as substantive conditions and

consequent deadlines, for establishing future phases.

874 F.2d at 887-88 (emphasis added).

The First Circuit concluded that the EPA’s actions in 1980

represented "a rulemaking consensus that it [the agency] could deal

substantively with plume blight but not with regional haze." 874

F.2d at 891. The court emphasized that, while EPA had bound

itself to propose and promulgate future phases "when improved

monitoring techniques yield data, when models become refined, and

when scientific knowledge improves," a full and appropriate

rulemaking procedure would be required. 874 F.2d at 890.

The EPA has defined the distinction between Phase I plume

blight and Phase II regional visibility impairment, both in theory

and in practice, as "by what means a source can be identified." 45

Fed. Reg. 34762 at 34779 (Appendix, p. 161). The EPA has

acknowledged that visibility impairment which is not detectable by

visual observation or simple monitoring techniques does not fall

within the scope of its Phase I regulatory authority. 45 Fed. Reg.

80084 at 80085 (Appendix, pp. 81-82). It is thus evident that,

consistent with the decisions in State of Vermont and State of Maine,

the regulation of a source based on an attribution derived from

sophisticated and unproven mathematical models and complex

monitoring techniques, as was done here, is beyond the EPA’s

current authority.

In its Opinion, the Ninth Circuit reasons that State of Vermont

is inapposite because it involved "a direct and explicit attempt to

regulate ‘regional haze’," where in this case the EPA has clearly

stated that its action addresses "reasonably attributable" (Phase 1)

impairment. Opinion at 2730.

The Ninth Circuit’s distinction, one urged upon it by the EPA,

is meaningless. The fact that the EPA has postured its action in the

Final Rule as addressing Phase I impairment is not dispositive.

That distinction can legally be drawn only by analyzing whether

"reasonable attribution" can be made through simple monitoring

techniques or visual observation. If it cannot, then a Phase II

——————————————————

impairment and a Phase II attribution determination are necessarily

involved.

In upholding the EPA’s interpretation of the Phase I rules in

State of Vermont, the First Circuit relied on the EPA’s argument

that its Phase I rules were limited to plume blight (traceable streams

of smoke, dust, or colored gas which may be followed to a Class I

area) because “plume blight obviously was more susceptible to

identification, measurement and thus control" and, as to Phase II

impairment, that "monitoring and other scientific techniques" had

not “progressed to a point that EPA could develop a regulatory

program for that type impairment." 850 F.2d at 101.

In its regulation of Navajo, the EPA has effectively eliminated

the distinction between its Phase I and Phase II program, arguing

(1) that any contribution by a single Stationary source to visibility

impairment is adequate to justify its regulation under Phase I, and

(2) that the determination of whether such a contribution has

occurred may be based on the use of any techniques the state or the

EPA deems appropriate. On this basis, each of the power plants on

which Vermont sought to impose emission controls in State of

Vermont should have been subject to regulation under EPA’s 1980

Phase I visibility rules. Nonetheless, EPA rejected Vermont’s

Proposed state implementation plan on the grounds that the EPA’s

1980 Phase I rules did not permit such regulation. 850 F.2d at 102.

The Ninth Circuit seeks support for its interpretation by stating

that under 40 C.F.R. § 51.301(s), "reasonably attributable" is

defined as “attributable by visual observation or any other technique

the state deems appropriate." Since the EPA is Standing "in the

Shoes of a defaulting state" under 42 U.S.C. § 7410(c) in

promulgating the Arizona federal implementation plan, the Ninth

Circuit posits that the EPA has "broad discretion in determining

whether visibility impairment is ‘reasonably attributable’ to a given

source."

The Ninth Circuit’s reliance on 40 C.F.R. § 51.301(s) is

misplaced. The EPA is required to follow the provisions of 40

C.F.R. § 52.26 when, as here, it acts upon the failure of a state to

adopt appropriate visibility provisions. The regulation, in effect

since 1985, states that "[t]he Administrator shall use the following

as appropriate to monitor visibility" for purposes of determining

reasonably attributable impairment: (i) photographic cameras, (ii)

fine particulate samplers, (iii) teleradiometers, (iv) nephelometers,

(v) human observation or (vii) "other appropriate technology." 40

C.F.R. § 52.26(c)(2), (3) (1992) (Appendix, pp. 180-181).'* The

term "other appropriate technology” is plainly limited to established

and visually oriented monitoring methods similar to those listed.

See, e.g., State of Nevada v. Herrington, 827 F.2d 1394, 1396 (9th

Cir. 1987) (in interpreting the phrase “through negotiation,

arbitration, or other appropriate mechanisms,” the court applied the

rule of ejusdem generis to limit the term “other appropriate

mechanisms" to matters similar to those earlier specified.)

(Emphasis added.)

By its terms, 40 C.F.R. § 51.301(s) applies only to states. The

EPA is governed by 40 C.F.R. § 52.26 when it acts where a state

has failed to act. The complex, unproven techniques used by the

Administrator to justify the Final Rule are not of the type specified

in § 52.26. In fact, the Final Rule declared that the techniques used

in the Navajo attribution were not approved "for use in any other

rulemaking addressing other potential sources of visibility

impairment." 56 Fed. Reg. 50172 at 50184 (Appendix, p. 44).

Even if 40 C.F.R. § 51.301(s) were applicable, the Ninth

Circuit’s reasoning is flawed. "Any other technique the state deems

appropriate" does not mean that a state may utilize mathematical

models and complex experimental techniques which the EPA has

deemed to be inappropriate for evaluating visibility impairment, and

thus beyond the scope of its Phase I regulations. If the Ninth

Circuit’s analysis was correct, Vermont’s attempt to regulate power

plant sources of visibility impairment would have perforce been

approved by EPA or upheld by the reviewing court. The EPA

cannot be relieved from its own regulations merely by attempting to

stand in a state’s shoes. The Ninth Circuit’s interpretation renders

the Phase I/Phase II dichotomy meaningless.

2 This regulation was applicable to the Administrator when he promulgated

the Final Rule to deal with visibility impairment in the Grand Canyon. 40 C.F.R.

§§ 52.26(a),(c); 52.145(b); 51.403 (1992). It also applies to states such as

Arizona, who have failed to act (40 C.F.R. §§ 52.145(a),(b)), and necessarily

modifies and constrains the broad definition of “reasonably attributable” which

applies to states when they adopt approvable visibility implementation plans. See

40 C.F.R. §§ 51.305; 52.26(c)(1) (1992).

B. The decision below is inconsistent with the EPA’s

prior interpretation and application of its Phase I

regulations.

The Ninth Circuit also seeks justification for its decision on the

assertion that attribution can be made on the basis of "any"

contribution to visibility impairment. However, State of Vermont

and State of Maine make it quite clear that only Phase I impairment

may be attributed to a source. 850 F.2d at 101. The Ninth

Circuit’s interpretation is contrary to the history and all previous

implementation of the 1980 Phase I regulations by the EPA, and

reflects misunderstanding as to the policy behind the EPA’s phased

approach to regulation of visibility impairment.

The Ninth Circuit’s decision fails to consider the EPA’s prior

interpretation of the Phase I regulations, and thus perpetuates an

inconsistent application of the Agency’s previously established

position. In determining whether an agency’s construction and

application of a statute is correct, the courts must consider the

consistency with which an agency interpretation has been applied

and whether the interpretation was contemporaneous with the

enactment of the statute being construed. NLRB v. United Food and

Commercial Workers Union, 484 U.S. 112, 124, n. 20 (1987).

Where an agency has interpreted and applied its regulations

inconsistently, its actions have been found to be arbitrary and

capricious. Thus, in PPG Industries, Inc. v. Harrison, 660 F.2d

628 (Sth Cir. 1981), the court stated "when as here the agency’s

construction of its own administrative regulations is in issue, the

court must . . . determine whether the agency’s reading of the

regulations is reasonable and consistent over time." 660 F.2d at

633. In PPG, the Fifth Circuit reviewed EPA’s application of new

source performance standards and found that the agency’s

application of such standards to PPG was inconsistent with its

previous positions on the use of high sulfur fuel boilers. The court

analyzed the language of the regulation and the "EPA materials

Surrounding its promulgation," and concluded _ that "such

inconsistency must be viewed as arbitrary and capricious." 660

F.2d at 634. See also American Meat Institute v. EPA, 526 F.2d

442, 459 (7th Cir. 1975) (the agency’s total suspended solids

effluent limitations were arbitrary and capricious because EPA’s

rejection of questionnaire data on this occasion was inconsistent with

its preference for such data in other instances); American Methyl

earl

Corp. v. EPA, 749 F.2d 826, 834, 837-39 (D.C. Cir. 1984) (EPA’s

past administrative practice belied its present position that it had

implied authority to revoke waivers to market new fuels without

following control procedures.)

EPA’s contemporaneous explanation of its 1980 Phase I

regulations defined "reasonably attributable" as attributable to a

single source or group of sources “by visual observation or other

monitoring techniques." 45 Fed. Reg. 34762 at 34779 (Appendix,

p. 161). As previously described, all of the EPA’s actions in

analyzing certifications of visibility impairment following _ its

adoption of the 1980 Phase I regulations and prior to the Final Rule

regulating Navajo were consistent with this definition:

e Voyageurs National Park: Time lapse photography

displayed no distinct, identifiable plumes.

e Petrified Forest National Park: Photographic monitoring

equipment did not display identifiable plumes traceable to a

specific source.

e Brigantine Wilderness: Yellowish plume detectable by

visual observation.

e Moosehorn Wilderness: The EPA planned to _ install

photographic monitor.

e Saguaro Wilderness: Camera system deployed.

(See, pp. 6-7, supra.)

The EPA’s action on Navajo directly contravenes the

contemporaneous interpretation it gave to its Phase I regulations

upon adoption, as well as its application of those regulations in

analyzing certifications of visibility impairment in other Class |

areas.

The Ninth Circuit has created a confusing precedent, which will

be implicated in every attempt to regulate sources of visibility

impairment in Class I areas. The Ninth Circuit’s Opinion is likely

to generate confusion among other circuits. In addition, it gives the

EPA unprecedented and virtually unchecked power in making a

decision as to whether visibility impairment is attributable to a

source. Consideration of this matter by the Court is thus essential

for effective administration of the Clean Air Act and to prevent

widespread litigation.

n mment Pr ur

Il, The EPA Failed to Amend Its Phase I Regulations In

Accordance With Notice and Co t_ Procedures

n he Clean Air Act.

The EPA’s action in regulating Navajo based on criteria and

methodology not encompassed by its existing regulations is a

violation of its own rules and of the notice and comment rulemaking

provisions of the Clean Air Act. The Clean Air Act specifically

provides that its rulemaking Provisions shall apply to "revision of

regulations . . . relating to . . . protection of visibility[.]," (i.e., the

Phase I regulations promulgated pursuant to CAA § 169A, 42

U.S.C. § 7491 at issue here.) CAA § 307(d)(1)J), 42 U.S.C. §

7607(d)(1)J) (emphasis added) (Appendix, p. 212).

The EPA’s action in going beyond visual observation and

simple monitoring techniques to identify Navajo as a contributor to

visibility impairment constituted a revision to its Phase I regulations.

Before using the techniques used here to regulate a source like

Navajo, the EPA was required to follow the rulemaking procedures

established under the Clean Air Act and to adopt Phase II visibility

rules. By failing to do so, the EPA violated the Statute.

In State of Maine, the First Circuit specifically held that a

rulemaking procedure would be required if regulation of sources

was attempted based on factors not encompassed by the Phase |

regulations. 874 F.2d at 890. The court emphasized that the EPA

specifically limited its regulatory power when it adopted the Phase

I regulations in 1980:

Here, EPA bound itself to "propose and promulgate

future phases" anent uniform haze when improved

monitoring techniqu ield data, when models become

refined and when scientific knowledge improves (emphasis

added).

Id.

The court acknowledged that if the petitioners (who sought

regulation of sources contributing to regional haze) could

demonstrate that those conditions were now Satisfied, the EPA could

reject their petition for rulemaking only if the EPA rescinded those

aspects of Phase I which bound the agency “to rulemaking based on

a limited set of factors" (i.e., visual observation and simple

monitoring techniques). Jd. The court concluded that "[a]ny such

rescission, of course, would require implementation of a full and

appropriate rulemaking procedure." 874 F.2d at 890.

What the petitioners sought to do in State of Maine is exactly

what the EPA has done here: to regulate a source based on

attribution determined by applying unproven monitoring techniques

and scientific models without having gone through the necessary

rulemaking procedures to either implement Phase II or modify the

scope of the Phase I regulations.

State of Maine specifically holds that the Phase I regulations

have binding force on the EPA:

EPA’s very claim that Phase I was final when issued .

. . iS equivalent to a claim sotto voce that Phase I from the

outset had the force of law, affecting the rights of citizens

to enforce statutory duties. And it is settled that "[wJhere

the rights of individuals are affected, it is incumbent upon

agencies to follow their own procedures. This is so even

where internal procedures are possibly more rigorous than

otherwise would be required." (Citations omitted.)

874 F.2d at 890.

This Court and the federal courts have repeatedly set aside

agency attempts to amend or rescind or reinterpret existing

regulations without strict adherence to a process of reasoning on the

record with the benefit of informed suggestions from those affected

by the proposed change:

One of the central purposes of the notice and comment

requirements is to allow public participation in the

promulgation of rules which have a substantial impact on

those regulated. . . . [If the rule constitutes a change in

prior agency position and has a substantial impact on the

rights and obligations of [affected parties], the rule would

be invalid for failure to comply with the notice and

comment requirements.

National Retired Teachers Ass’n. v. U.S. Postal Service, 430

F.Supp. 141 (D.C.D.C. 1977), affirmed 593 F.2d 1360 (D.C. Cir.

1979). See also, Motor Vehicle Manufacturer’s Assn. v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29 (1983) (A settled course of

behavior by a regulatory agency embodies the agency’s informed

judgment that by pursuing that course it will carry out the policies

committed to it by Congress, and accordingly an agency changing

its course [by rescinding a rule] is obligated to provide a reasoned

analysis for the change); Environmental Defense Fund Inc. v.

Environmental Protection Agency, 716 F.2d 915 (D.C. Cir. 1983)

(termination of certain reporting requirements under the Resource

Conservation and Recovery Act required notice and comment

rulemaking); Environmental Defense Fund Inc. y. Gorsuch, 713

F.2d 802 (D.C. Cir. 1983) (deferral of permit process constituted

Suspension of regulation without the notice and comment required

by the Administrative Procedures Act ("APA")); Detroit Edison Co.

v. EPA, 496 F.2d 244 (6th Cir. 1974) (change in language and

application of regulation required compliance with informal

rulemaking procedures of APA).

Whether under the Administrative Procedure Act, as in the

above-cited cases, or under the rulemaking provisions specifically

applicable here under the Clean Air Act, an agency action which has

the effect of modifying or reinterpreting a duly promulgated

regulation must be conducted according to applicable notice and

comment requirements. While here the EPA has taken action in the

absence of properly promulgated regulations, the effect of its

conduct is to revise the scope of its current regulations. The EPA’s

failure to conduct rulemaking proceedings to adopt Phase II

visibility rules prior to using complex, sophisticated techniques to

attribute visibility impairment to Navajo, was a violation of the

Clean Air Act and renders the agency's action void. See, State of

Maine v. Thomas, 874 F.2d at 890-891.

CONCLUSION

In 1980, the EPA determined that Visibility impairment would

have to be regulated in phases because then-existing scientific

techniques for identifying sources of such impairment were limited

to visual observation and other simple monitoring methods. The

EPA stated that when sophisticated mathematical and modeling

techniques were developed, the agency would promulgate Phase II

regulations in which these more complex techniques could be fully

evaluated. Absent that evaluation, the EPA could not "routinely

require their use in a regulatory program for sources, either new or

existing, that may impair Visibility." 45 Fed. Reg. 80084 at 80085

(Appendix p. 81).

In the Final Rule, the EPA relied on controversial monitoring

data and unproven, highly complex and sophisticated analytical

techniques to require nearly $1 billion of emission controls at

Navajo without the promised Phase II evaluation. The EPA then

expressly stated that these techniques were not approved for use

elsewhere.

The EPA has clearly violated its own regulations and the

rulemaking requirements of the Clean Air Act. Petitioner therefore

respectfully requests that this Petition for Certiorari be granted.

Respectfully submitted,

By_/S/ Marvin $. Cohen