Opposition Brief — Central Arizona Water Conservation District v. Environmental Protection Agency

ER ee Fe Se FORT ee ee ee seers ac Oe Bes ERE ee Tee Sees Re Tha eee wee ee Veg

No. 92-2052 JUL 26 1993

OFFICE OF THE CLERK

IN THE —

Supreme Court of the United States

OCTOBER TERM, 1993

CENTRAL ARIZONA WATER CONSERVATION DISTRICT, ef al.,

Petitioners,

V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

GRAND CANYON TRUST AND THE WILDERNESS SOCIETY,

Respondents-Intervenors.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENTS-INTERVENORS

IN OPPOSITION

PATRICK M. RAHER *

JOHN C, KEENEY, JR.

JAMEs D. FREEMAN

HOGAN & HARTSON

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 687-5600

Counsel for

* Counsel of Record Respondents-Intervenors

Witson - Epes Paintine Co.. Inc. - 789-0096 - WasHINGTON. D.C. 20001

QUESTION PRESENTED

Whether the Court of Appeals correctly deferred to the

Environmental Protection Agency’s scientific determina-

tion that visibility impairment at Grand Canyon National

Park is “reasonably attributable” to Navajo Generating

Station emissions?

(i)

ii

PARTIES TO THE PROCEEDINGS

Petitioners Central Arizona Conservation District, et al.,

were petitioners below. Respondent United States Envi-

ronmental Protection Agency was respondent below.

Respondents-Intervenors Grand Canyon Trust and The

Wilderness Society were respondents-intervenors below.

Pursuant to Rule 29.1, respondents-intervenors note that

they have no parents, subsidiaries, or affiliates.

TABLE OF CONTENTS

se Rg gy | 5 nn

PARTIES TO THE PROCEEDINGS .........................-...

RE I WNT PI MIP cscs cscs scecencenesnsensecnsosecesenee

STATEMENT OF THE CASE..................................-......

REASONS THE PETITION SHOULD BE DENIED..

I. THE QUESTION PRESENTED IS FACT-

Nee ats la claconnpnaneschancnensiagascacsncnnes

Il. THERE IS NO CONFLICT AMONG THE

aa ci hutabdcesnisheapadlivansenenenianeesionmsieesecenanonnnese

III. THE DECISION BELOW WAS CORRECTLY

ded cic iinet cbastenicecdinasvonnewhnesanientieesadiinesannia

iach ce idicnennsannensinbannsanpbentitinnaninamnicednnss

(iii)

14

19

iv

TABLE OF AUTHORITIES

Cases: Page

Arkansas v. Oklahoma, 112 S. Ct. 1046 (1992)... 14

Baltimore Gas & Elec. Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87 (1983) ........... 15

Citizens to Preserve Overton Park, Inc. v. Volpe,

ee ee ee ea 14

Environmental Defense Fund v. Reilly, No. C82-

6850-RPA (N.D. Cal. Apr. 20, 1984) ................... 5

Environmental Protection Agency v. National

Crushed Stone Ass’n, 449 U.S. 64 (1980) 14

Maine v. Thomas, 874 F.2d 883 (1st Cir. 1989)... 13

Mullins Coal Co. v. Director, nds 484 U.S. 135

)_, y ROR ARR SERS ere Bah eRe OUR RES eager seri ee 14, 18

New York v. Reilly, 969 F.2d 1147 (D.C. Cir.

RRR ironed omer ety Bosses HEL aay Mo PTS Renae Me Sea 15

Udall v. Tallman, 380 U.S. 1 (1965) _...020002..002222.... 14, 18

Vermont v. Thomas, 850 F.2d 99 (2d Cir. 1988)... 12, 13

Statutes :

Clean Air Act, 42 U.S.C. §§ 7401-7671q:

§ 110(c) (1), 42 U.S.C. § 7410(c) (1) ...... ean 5,18

pe Cie Ce | Re ee eereeere 2,5,18

§ 169A (a) (1), 42 U.S.C. § 7491 (a) (1) _......... 3

§ 169A (a) (4), 42 U.S.C. § 7491 (a) (4) _.......... 3

§ 169A (b) (2), 42 U.S.C. § 7491 (b) (2) _... 4

§ 169A (b) (2) (A), 42 U.S.C. § 7491 (b) (2)

NIN iiss cediesiet caccaetiac ob eamiasbdaenta madede non seedielatialiantahis 3

EB fi RE glk Tee yg | | RRR eCneenee 13

§ 307 (b) (1), 42 U.S.C. § 7607 (b) (1) ............... 11

§ 307(d) (9) (A), 42 U.S.C. § 7607 (d) (9) (A).. 14

Regulations:

aie Oe cD accents cneeccecencceinntnnevennns 4,18

eI ha ceccnchi suse echnnoctcanntamseetienenwisascaies 4,16

I i a. cs sepdeeemnaresecbanvobwaisobuadined 4

§ 61.802 (c) (2) (i) ...................... acceso hadieonsedade 4

ND i raccscsnndessneneonniidideibatasioanons 4

SaaS SERS ERIE ea Ce Ts Ree ee 19

SD sicinccinsiribintinsennnsepetmninmsenonsiicidsnialleduadeiancis 16

Vv

TABLE OF AUTHORITIES—Continued

Page

at os ie we teccasnttdcecnecnencda aeebeinandansanenimeuies 18

Oe i pisces ccoisaenecttacecccasimenceneencereinczentaen 18

OF ee cineenitesedireetesperttcieecencsctencnens 18

40 C.F.R. §§ 81.400-81.437 . cebeiceeaeall 12

45 Fed. Reg. 80,084 (Dec. 2, 1980) 20000. 4,5,17

50 Fed. Reg. 28,544 (July 12, 1985) —.000 ee. 19

52 Fed. Reg. 45,132 (Nov. 24, 1987) ......2.. 22222222. 5

54 Fed. Reg. 21,904 (May 19, 1989) -......0.20000..022..... 6

54 Fed. Reg. 36,948 (Sept. 5, 1989) ......0.0000202. 5, 6, 12,18

55 Fed. Reg. 24,060 (June 13, 1990) ........e eee. 6

56 Fed. Reg. 38,401 (Aug. 18, 1991) -0000.. oe. 11

56 Fed. Reg. 50,172 (Oct. 3, 1991) .......000. 2,11,18

Legislative Material:

H.R. Rep. No. 294, 95th Cong., 1st Sess. 137

EIU P -xssc' okacadesiedeicicereintieaia uiiiarcniaaee ken a ahaa 3

TRE Come, Bae, Bite CBG aD events 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-2052

CENTRAL ARIZONA WATER CONSERVATION DISTRICT, et al.,

: Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

GRAND CANYON TRUST AND THE WILDERNESS SOCIETY,

Respondents-Intervenors.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENTS-INTERVENORS

IN OPPOSITION

Respondents-Intervenors Grand Canyon Trust and The

Wilderness Society respectfully pray that this Court deny

the petition for writ of certiorari seeking review of the

judgment of the Court of Appeals for the Ninth Circuit.

STATEMENT OF THE CASE

This is a case in which the Environmental Protection

Agency (“EPA”’ or “the Agency’’) undertook a compre-

hensive review of a complicated and voluminous scientific

record, prior to issuing a technical regulation governing

emissions of sulfur dioxide from a specific generating

plant. The Court of Appeals unanimously upheld the

2

regulation as within the bounds of the Agency’s authority

and not arbitrary or capricious. Although there is no

basis for this Court to exercise its certiorari jurisdiction

to undertake yet another review of the scientific data in

the record, that data is outlined below to confirm the

ample grounds supporting the Agency’s action and the

Court of Appeals’ decision.

On October 3, 1991, EPA promulgated regulations re-

quiring a 90% reduction in sulfur dioxide (“SO.’’) emis-

sions at the Navajo Generating Station (‘““NGS’)* to

remedy wintertime visibility impairment at the Grand

Canyon National Park (‘“‘the Grand Canyon’’) that is

attributable to NGS. 56 Fed. Reg. 50,172 (Oct. 3,

1991). NGS is a coal-fired electric generating station

located fifteen miles from the mouth of the Grand Can-

yon. NGS currently employs no SO. emission control

technology and emits approximately 163 tons of SO. per

day, making it the second largest uncontrolled source of

SO. in the western United States.

Wintertime visibility impairment at the Grand Canyon

is characterized by periodic haze “‘inversions.’’ The haze

is caused by a chemical reaction between SO, and water.

When the prevailing winds mix NGS SO. emissions with

high levels of relative humidity, a river of haze fills the

canyon. The haze episodes are layered—thicker beneath

the rim of the canyon than above—blocking the views of

the Grand Canyon’s majestic expanse that make it one of

the seven natural wonders of the world.

EPA conducted the challenged rulemaking under the

authority of Section 169A of the Clean Air Act, 42

U.S.C. § 7491. Section 169A specifically targets the

elimination of visibility impairment in national parks and

1 The Salt River Project (“SRP”) is the operating agent of NGS.

The NGS participants are SRP, the United States Bureau of Rec-

lamation, Los Angeles Department of Water and Power, Arizona

Public Service Co., Nevada Power Co., and Tucson Gas and Electric

Co. See Pet. App. 2716.

3

wilderness areas—designated “Class I’’ areas—to preserve

our country’s most cherished and pristine federal lands.

Visibility at many national parks—the Grand Canyon in

particular °—had already been impaired due to emissions

from existing sources. Therefore, Congress enacted Sec-

tion 169A to provide a specific mechanism for redressing

pre-existing visibility impairment. Congress set the ex-

plicit goal of “prevent{ing] any future, and * * * remedy-

ing * * * any existing, impairment of visibility in manda-

tory class I Federal areas.” 42 U.S.C. § 7491(a)(1).

Section 169A requires a source that “emits any air pol-

lutant which may reasonably be anticipated to cause or con-

tribute to any impairment of visibility” in a Class I area to

install stringent emission controls. Id. § 7491(b)(2)(A)

(emphases supplied). The statutory requirement clearly

defines the point at which controls must be imposed on

an offending source: controls are required at the point

when emissions attributable to the source can reasonably

be anticipated to cause any visibility impairment in a

protected area. Congress mandated this extremely low

triggering threshold to assure that controls are installed

at the earliest sign of impairment in order to protect our

most valued federal lands.

Section 169A directs EPA to promulgate regulations

to assure “reasonable progress toward meeting the na-

tional goal’ of preventing and remedying visibility im-

pairment in Class I areas. Id. § 7491(a)(4). In the

regulations, the Agency must require each state contain-

ing a Class I area to revise its State Implementation

Plan (“SIP”) to establish “‘such emission limits, schedules

2In the legislative history of Section 169A, Congress specifically

cited the Grand Canyon as one of two national parks that suffer

visibility impairment due to emissions from power plants. H.R.

Rep. No. 294, 95th Cong., 1st Sess. 137 (1977). The legislative

history also indicates that Congress expected NGS to install pollu-

tion control equipment to meet the requirements of Section 169A.

See 123 Cong. Rec. 27,076 (1977) (statement of Rep. Waxman).

7

4

of compliance and other measures as may be necessary

to make reasonable progress * * *.” Jd. § 7491(b)(2).

EPA promulgated the visibility regulations required

under Section 169A in 1980. See 40 C.F.R. §§ 51.300-

51.307. Pursuant to these regulations, the federal land

manager for each Class I area must certify to state offi-

cials that visibility impairment exists at a Class I area

within the state’s borders when evidence of visibility im-

pairment is found. 7d. § 51.302(c)(1). The regulations

then require the state to identify each existing stationary

facility that may “reasonably be anticipated to cause or

contribute” to the visibility impairment. /d. § 51.302

(c)(4)(i). “Reasonably attributable’ impairment is im-

pairment “attributable by visual observation or any other

technique the State deems appropriate.” Jd. § 51.301(s).

Finally, the regulations require an affected state to include

emission limitations, schedules of compliance, and other

measures as may be necessary to make reasonable prog-

ress towards meeting the national visibility goal in their

SIP submissions to EPA. 7d. § 51.302(c)(2)(i).

Accordingly, EPA’s visibility regulations focus on visi-

bility impairment that is reasonably attributable to a spe-

cific source or small group of sources. In promulgating

the visibility regulations, the Agency recognized that some

visibility impairment is the result of “regional haze’? and

is not attributable to specific sources. The Agency distin-

guished the two types of visibility impairment in the pre-

amble to the regulations. “Reasonably attributable” im-

pairment is “[s]moke, 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.”” 45 Fed. Reg. 80,084, 80,085 (Dec. 2, 1980).

By contrast, “regional haze” is “widespread, regionally

homogeneous haze from a multitude of sources which

impairs visibility in every direction over a large area.”

Ibid. The 1980 rulemaking only purported to regulate

reasonably attributable impairment. EP viewed the reg-

ulation of reasonably attributable visibility impairment as

a

5

Phase I of its overall visibility program; regional haze was

to be regulated in a future Phase II. See id. at 80,085-

86. EPA has not promulgated Phase II of its visibility —

program.

In the event a state submits a SIP that does not meet

the requirements of the Clean Air Act (or fails to submit

a SIP at all), Section 110(c)(1) of the Clean Air Act

requires EPA to promulgate a Federal Implementation

Plan (“‘FIP’’) for the state. See 42 U.S.C. § 7410(c)(1).

Thus, EPA must promulgate a visibility FIP for a state

that defaults on its obligation to submit a visibility SIP.

In such cases, EPA stands in the shoes of the affected

state. The Agency is charged with all the rights and

duties related to the implementation of the visibility regu-

lations that would otherwise fall to the state. See 54 Fed.

Reg. 36,948, 36,952 (Sept. 5, 1989).

On November 24, 1987, EPA disapproved Arizona’s

visibility SIP because the state failed to address certified

visibility impairments in Class I areas within its borders.

52 Fed. Reg. 45,132, 45,133 (Nov. 24, 1987). EPA

took this action—in which it also disapproved the visibil-

ity SIPs of 32 other states—pursuant to a settlement

agreement reached with the Environmental Defense Fund

(EDF). EDF had filed suit in the United States District

Court for the Northern District of California alleging

that EPA had failed to promulgate visibility FIPs for

states—including Arizona—that had failed to submit SIPs

to EPA as required by the 1980 visibility regulations.

Environmental Defense Fund v. Reilly, No. C82-6850-

RPA (N.D. Cal. Apr. 20, 1984). In the 1987 action,

EPA promulgated general FIP requirements and long-

term strategies for the affected states pursuant to the

authority of Sections 110(c)(1) and 169A. 42 U.S.C.

§§ 7410(c)(1), 7491. EPA deferred a decision on con-

trol requirements at facilities in the affected states pend-

6

ing completion of monitoring studies regarding potential

sources of impairment.’ —

As part of the monitoring effort at the Grand Canyon,

the National Park Service (““NPS’’) conducted the Winter

Haze Intensive Tracer Experiment (“WHITEX’’) study

to determine NGS’s impact on visibility impairment at the

Grand Canyon. Petitioners’ Excerpts of Record (“ER”)

14. One important feature of the WHITEX study was

the injection of a unique tracer chemical into the NGS

emissions stack to mark the presence of NGS emissions

in the atmosphere. The WHITEX study group was then

able to measure concentration levels of the tracer chemi-

cal at Hopi Point on the rim of the Grand Canyon and

correlate the presence of the tracer to the presence of

visibility-impairing sulfates. In all, the NPS used nine

techniques to attribute observed visibility impairment at

the Grand Canyon to specific sources. 54 Fed. Reg. at

36,951. The WHITEX study concluded that NGS was

the largest single contributor to visibility impairment in

the Grand Canyon. More specifically, the study found

that NGS contributes approximately 40% of the winter-

time visibility impairment at the Grand Canyon and up to

70% of the impairment during the most severe visibility

impairment episodes. /bid.; ER 14 at Ch. 9.

WHITEX marked the first of several studies examin-

ing the impact of NGS emissions on visibility impairment

in the Grand Canyon. Several other analyses were con-

8 See 52 Fed. Reg. at 45,188. EPA subsequently found it unnec-

essary to devise contro) strategies in 30 of the 32 states because

the Agency could not “reasonably attribute” visibility impairment

in the Class I areas located within those states to specific sources.

54 Fed. Reg. 21,904, 21,905 (May 19, 1989) ; 54 Fed. Reg. at 39,950-

51; 55 Fed. Reg. 24,060, 24,062 (June 13, 1990). In one of the two

remaining states, EPA anticipated that requirements placed on a

source under other provisions of the Clean Air Act would adequately

remedy the visibility impairments reasonably attributable to that

source. The Agency thus found further control strategies unneces-

sary. 55 Fed. Reg. at 24,062. This left only one state—Arizona—

subject to further regulation.

7

ducted after the NPS released WHITEX. Some of the

studies relied on the collection of new data; others re-

examined the WHITEX data and methodology. The

studies, all of which were placed in the rulemaking

docket, included the National Academy of Sciences

(“NAS”) evaluation of WHITEX entitled Haze in the

Grand Canyon: An Evaluation of the Winter Haze In-

tensive Tracer Experiment, ER 15; the Navajo Generat-

ing Station Visibility Study (“NGSVS”), ER 46, spons-

ored by the NGS owners; and reports by Air Resource

Specialists, Inc., Respondent’s Supplemental Excerpts of

Record (“SER”) 2, and Latimer & Associates, SER 32.

Each report concluded that NGS contributed to visibility

impairment in the Grand Canyon, although they differed

as to the precise amount of the impairment attributable

to NGS. EPA relied upon each report in promulgating

its final rule.

In response to industry criticisms of WHITEX, EPA

co-sponsored the NAS review of the report. NAS praised

WHITEX for providing “a valuable data base that sheds

light on the nature and magnitude of the haze problems

at GCNP” and commended NPS for its innovative use of

CD, as the tracer chemical. ER 15 at 37. NAS con-

cluded that “NGS contributed significantly to haze at

Hopi Point in GCNP.” /d. at 3, 37. The report also.

noted that one of the “greatest weaknesses of the

[WHITEX] study was that no measurements were made

below the rim of the Grand Canyon, within the canyon

itself.” Jd. at 25. Meteorological evidence, still photo-

graphs, and time-lapse video “suggest that sulfur concen-

trations in the canyon might have been considerably

greater than was observed on the rim.” /Jbid. This critical

flaw suggests that WHITEX actually underestimated the

degree of visibility impairment at the Grand Canyon

attributable to NGS.

SRP sponsored the NGSVS in the winter of 1990 to

investigate the impact of NGS emissions on visibility im-

8

pairment in the canyon. The NGS owners discovered that

“NGS emittants can affect visibility in [the Grand Can-

yon].” ER 46 at 2-12. In one impairment episode, the

NGSVS found that NGS emissions were responsible for

55% of the visibility impairment. Jd. at 2-2. While the

NGSVS data indicated that controlling SO. emissions

from NGS would result only in a 2% improvement in the

winter seasonal average standard visual range, the report

noted that “emissions from the NGS may have been in

the vicinity of the Grand Canyon less often in 1990 than

in 1987 [the year of the WHITEX study] as well as less

often than longer-term averages would predict” due to

abnormal weather patterns occurring in 1990.* Like the

WHITEX report, NGSVS faiied to study the impact of

NGS beneath the rim of the canyon.°

The Air Resource Specialists, Inc. (“ARS”) report con-

firmed that WHITEX and the NGSVS study substantially

underestimated NGS’s impact on visibility in the Grand

Canyon and found significant evidence of visibility impair-

ment at other Class I areas attributable to NGS. ARS

cited four factors supporting these important conclusions.

First, measurements taken at the Indian Gardens moni-

toring site 3,000 feet below the canyon’s rim show that

sulfate concentrations are significantly higher than sulfate

concentrations for the same time period at the Hopi Point

monitoring site on the canyon’s rim. SER 2 at 12-1. Sec-

ond, a combined modeling and photographic analysis of

the NGS plume suggests that NGS emissions impair vis-

ibility at each of the eight national parks on the Colorado

plateau (often referred to as “Golden Circle” national

*ER 2-11. In comments submitted to the rulemaking docket,

Dr. Thomas Cahill—a consultant for both the WHITEX and

NGSVS studies—noted that if the NGSVS data had been adjusted

to reflect typical meteorology, the NGSVS results would have been

“much closer to the WHITEX estimates.” SER 14 at 2-4.

5 Although the NGSVS study collected data from below the rim,

SRP chose not to analyze it.

9

parks) that loosely surround NGS, during each of the

four seasons. Third, analysis of wind flows indicates that

in 1990—the year of SRP’s visibility study—winds blew

NGS emissions into the Grand Canyon less frequently

than in a typical year, allowing visitors to enjoy, and

Scientists to study, an unusually clean year. (Not sur-

prisingly, however, the windflow analysis indicated that

Class I areas in other directions suffered greater visibility

impairment than usual in 1990.) Jd. at 11-1. Finally,

the ARS report provides powerful computer-generated pic-

torial evidence of the visibility improvements that will oc-

cur at the Grand Canyon if sulfur dioxide emissions at

NGS are curtailed. Id. at 11-4.

The Latimer & Associates report was the final major

study of NGS visibility impacts on Class I areas. This

study modeled NGS emissions in one-hour increments be-

tween 1986 and 1990, calculating SO. and sulfate con-

centrations, incremental light extinction, and terrain con-

trast changes three times a day. SER 32 at 11. The

primary objective of the study “was to determine the per-

ceptibility of specific haze episodes and the controls

needed [at NGS] to eliminate perceptible hazes through-

out the Golden Circle.” Jd. at 1. Summarizing its con-

tents, the Latimer & Associates report concluded that:

* Perceptible sulfate haze impacts due to NGS emis-

sions are calculated to occur in every Golden Cir-

cle park and in each season during the 5-year

period modeled.

Haze impacts are generally highest in the Grand

Canyon in winter, but impacts in other parks and

in other seasons are significant.

* There is considerable year-to-year variation in

transport conditions; therefore, one cannot rely on

a single season’s data to make general conclusions

regarding frequency and magnitude of impact.

* The winter of 1990 when the SRP study was car-

ried out had a much lower calculated impact due

ii i |

10

to NGS than the winter of 1987 when WHITEX

was carried out. In 1990 Canyonlands was much

more frequently impacted.

* To totally eliminate perceptible NGS haze impacts

in all parks and in all seasons, SO. emissions must

be reduced by 89-95 percent * * *.

Id. at 17.

Latimer & Associates’ findings dovetail those of the

ARS study. Using different methodologies, both con-

cluded that NGS emissions traveled to all of the Golden

Circle national parks on the Colorado plateau throughout

the year. Both independently concluded that NGS must

reduce its SO. emissions approximately 90% to eliminate

perceptible visibility impairment attributable to NGS.

Ibid.; SER 2 at 11-1. Thus, both reports fully support

the 0.10 lb./MMBtu emission limitation—a 90% reduc-

tion in NGS emissions—that EPA promulgated in its final

rule.

The coalescence of scientific data on the presence of

NGS emission at the Grand Canyon led several of the

participants in the rulemaking to inquire as to the

feasibility of opening multiparty discussions regarding

the most cost effective control option. This led EPA,

in early 1991, to facilitate discussions between repre-

sentatives of SRP, the Grand Canyon Trust, and EDF

in an effort to find a mutually acceptable control option.

A representative of the Central Arizona Water Con-

servation District (“CAWCD”), one of the petition-

ers in this action, participated in the first negotiating

session, but did not return. The parties met repeatedly

during a three-month period in mid-1991 to discuss vari-

ous control options and their related costs in an attempt

to clarify all options and their costs. As a result of these

discussions, SRP, on behalf of itself and the other NGS

owners, and the two environmental groups submitted a

Memorandum of Understanding to EPA proposing an al-

ternative control option that was $16.4 million per year

EEE

11

less expensive than the primary option presented in EPA’s

proposed rule, yet provided a substantially greater envi-

ronmental benefit to the Grand Canyon. See 56 Fed. Reg.

38,399, 38,401 (Aug. 13, 1991). After reopening the

comment period to permit public input on this joint pro-

posal, EPA promulgated a final rule substantially adopt-

ing the terms of the Memorandum of Understanding. 56

Fed. Reg. at 50,177.

Despite the historic agreement between the owners of

NGS and the environmental groups on the alternative con-

trol option, CAWCD—after minimal participation during

the EPA rulemaking and subsequent settlement discussions

—filed a petition for review of EPA’s action in the United

States Court of Appeals for the Ninth Circuit pursuant to

42 U.S.C. § 7607(b)(1). The Court of Appeals denied

the petition. In his opinion for the unanimous court,

Judge Goodwin found that EPA’s actions in promulgating

the final rule were reasonable, within the bounds of the

Agency’s statutory authority, and not arbitrary and

capricious. Pet. App. 2740. More specifically, the Court

of Appeals concluded that the final rule was validly

promulgated under EPA regulations directed at “reason-

ably attributable” visibility impairment, and did not con-

stitute the regulation of “regional haze.” See id. at 2730.

Petitioners did not seek rehearing or suggest rehearing

en banc.

REASONS THE PETITION SHOULD BE DENIED

I. THE QUESTION PRESENTED IS FACT-SPECIFIC

Petitioners’ own “Question Presented” confirms that this

Case presents an intensely fact-specific issue not warrant-

ing further review by this Court. According to peti-

tioners themselves, the issue is whether a specific agency

rule governing emission requirements at a specific gen-

erating station complies with a specific set of regulations.

After review of the voluminous record replete with scien-

|

12

tific data, the court below concluded that the Agency’s

“site-specific” process was “reasonable and within the

bounds of its statutory authority, and not arbitrary and

capricious,” and that petitioners “simply adhere to a dif-

ferent interpretation of the rather disparate and equivocal

scientific data in the record.” Pet. App. 2739. There is

no reason for this Court to exercise its discretionary juris-

diction on certiorari to undertake another review of the

record.

Nor is there any reason to suppose that the decision

below will have any broader impact on application of

the Clean Air Act. Petitioners assert that the Ninth Cir-

cuit decision will leave application of the Clean Air Act

in a “state of confusion.” While long on melodrama, this

argument ignores the reality of EPA’s implementation of

Section 169A. Congress enacted Section 169A sixteen

years ago. The instant rulemaking marks EPA’s first and

only final rule establishing emissions controls for an

existing source pursuant to Section 169A. Moreover, the

prospects that the Agency will embark on future 169A

rulemakings are dim. EPA has already considered apply-

ing its visibility regulations to the 156 national parks and

wilderness areas at which the Agency, in consultation with

- the Secretary of the Interior, determined that visibility was

an important value. See 40 C.F.R. §§ 81.400-81.437. In

no case—aside from this action at the Grand Canyon—

did EPA promulgate or even propose a regulation to con-

trol visibility impairment reasonably attributable to a spe-

cific source. Thus, the Agency’s prior actions leave little,

if any, room for the future regulation of visibility impair-

ment pursuant to its 1980 Phase I regulations. See 54

Fed. Reg. at 36,950-51. Without such rulemakings, there

is nothing to be left confused.

II. THERE IS NO CONFLICT AMONG THE CIRCUITS

CAWCD raises the specter of a conflict among the cir-

cuits, citing the Second Circuit’s opinion in Vermont v.

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

CC

13

Circuit’s opinion in Maine v. Thomas, 874 F.2d 883 (1st

Cir. 1989). Petitioners mischaracterize the facts of both

Cases to create the conflict. Each is clearly distinguishable

from the present case.

In Vermont v. Thomas, the state of Vermont sought in

its SIP to remedy visibility impairment at the Lye Brook

National Wilderness Area—a Class I area—by establish-

ing a federally enforceable long-term strategy to reduce

sulfate emissions from out-of-state sources. 850 F.2d at

101. Vermont found that the sulfates originated from a

“multitude” of power plants and other industries utilizing

coal and oil as fuel for boilers over an eight-state area.

Ibid. Unlike the present case, Vermont did not find vis-

ibility impairment reasonably attributable to any specific

source. In fact, no source was found responsible for any

particular percentage of the visibility impairment. The

Second Circuit rejected Vermont’s express attempt to ad-

dress regional haze impacts, finding that EPA’s regula-

tions only permitted the Agency to regulate visibility im-

pairment that is reasonably attributable to particular

sources. See id. at 103. The court below expressly ad-

dressed and distinguished Vermont on this basis. Pet.

App. 2730-31.

Maine v. Thomas is even further removed from the

facts of this case. In that case, Maine and several environ-

mental groups alleged that EPA’s failure to promulgate

regional haze regulations constituted a derogation of a

nondiscretionary duty to combat visibility impairment

under 42 U.S.C. § 7491. Maine, 874 F.2d at 886. The

First Circuit rejected this contention, finding the promul-

gation of the Phase I regulations constituted a final action

and was thus reviewable only by the D.C. Circuit pursuant

to 42 U.S.C. § 7607(b). The First Circuit thus upheld

the District Court’s dismissal of the case on jurisdictional

grounds. /bid.

The rulemaking now before the Court raises none of

the same issues. Studies conducted by the NPS, SRP, and

id

others have attributed visibility impairment at the Grand

Canyon to NGS. The studies were placed in the admin-

istrative record of this rulemaking. EPA relied on these

studies in making a scientific judgment that visibility im-

pairment was reasonably attributable to NGS—a crucial

fact not present in either Maine or Vermont. Neither of

those cases represented facts in which a state, or EPA stand-

ing in the shoes of the state, attributed visibility impair-

ment to a single source. Thus, neither case is relevant to

the issue currently before the Court.

Ill. THE DECISION BELOW WAS CORRECTLY DE-

CIDED :

Under the Clean Air Act, a reviewing court may re-

verse EPA regulations only if they are “arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accord-

ance with law.” 42 U.S.C. § 7607(d)(9)(A). This

Court has recognized that a court reviewing agency action

under an arbitrary and capricious standard of review “is

not empowered to substitute its judgment for that of the

agency.” Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 416 (1971). In view of EPA’s

responsibility for administering the Clean Air Act, this

Court has held that reviewing courts must give great

deference to the Agency’s interpretation of the statute.

Environmental Protection Agency v. National Crushed

Stone Ass'n, 449 U.S. 64, 83 (1980). Moreover, when

an agency’s interpretation of its own regulations is at

issue, “deference is even more clearly in order.” Udall

v. Tallman, 380 U.S. 1, 16 (1965). This Court has

found that an agency’s construction of its own regulation

deserves “substantial deference” so long as it is not

“plainly erroneous or inconsistent with the regulation.”

Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 159

(1987) (citation omitted); Arkansas v. Oklahoma, 112

S. Ct. 1046, 1059 (1992). Here, Congress has directed

EPA to administer Section 169A of the Clean Air Act.

The visibility FIP for Arizona represents EPA’s interpre-

15

tation of its visibility regulations promulgated pursuant

to Section 169A and the federal action requirement of

Section 110(c). Accordingly, this EPA action is entitled

to the highest degree of deference.

Judicial deference is particularly appropriate due to

the scientific details of the rulemaking. This Court has

recognized that “a reviewing court must generally be at

its most deferential’’ when an agency is “making predic-

tions, within its area of special expertise, at the frontiers

of science.” Baltimore Gas & Elec. Co. v. Natural Re-

sources Defense Council, Inc., 462 U.S. 87, 103 (1983)

(emphasis supplied). The D.C. Circuit has similarly

noted that courts are “extremely deferential to adminis-

trative agencies in cases involving technical rulemaking

decisions.” New York v. Reilly, 969 F.2d 1147, 1152

(D.C. Cir. 1992). This rule recognizes that agency per-

sonnel have particular expertise in understanding and

applying technical information and making scientific de-

terminations. Substitution of a court’s interpretation of

scientific evidence for that of the agency is highly inap-

propriate.

Petitioners mount three challenges to EPA’s rulemak-

ing. First, they contend that EPA relied on the wrong

methods in attributing visibility impairment to NGS. Ac-

cording to petitioners, EPA can only attribute visibility

impairment to a source when it does so using simple

methods, such as visual observation or simple monitor-

ing,° and the use of more sophisticated attribution is

6 Petitioners characterize “simple monitoring” as optical devices

that enhance the human eye, such as nephelometers, telephotometers,

and transmissometers, as well as photography. Even if petitioners

were correct—and they are not—the result in this case would be

the same. The rulemaking docket contained a photographic analysis

of visibility impairment attributable to NGS, including a time-lapse

video. SER 2 at 11-4, 6-25 to 6-27, and Video Attachment; ER 14

at 1-11, 8-4, 8-25, 8-44. Data supplied by transmissometers and

nephelometers were also before the Agency. SER 2 at 6-18; ER 14

at 1-11.

16

impermissible. This head-in-the-sand theory leads to an

absurd result. The use of more sophisticated analyses to

achieve greater certainty that visibility impairment is at-

tributable to a specific source and to provide a more pre-

cise measurement of that visibility impairment would be

prohibited under the CAWCD formulation. CAWCD has

it precisely backwards. The correct focus of EPA’s im-

plementing regulations is not on the relative sophistication

of the attribution techniques employed but. on the level of

certainty that the techniques give to EPA’s ability to

attribute episodes of visibility impairment to individual

sources.

EPA’s visibility regulations define “reasonably attrib-

utable” as “attributable by visual observation or any other

technique the State deems appropriate.” 40 C.F.R.

§ 51.301(s). The definition contains no explicit or im-

plicit limitation on the types of attribution techniques that

the state—or EPA when standing in the shoes of the state

—may employ to determine whether visibility impairment

is reasonably attributable to a source. Nowhere does the

regulation suggest that the monitoring techniques must be

simple.

In fact, the regulations specifically require states to

include a strategy for evaluating visibility impairment

using appropriate monitoring techniques in its visibility

SIP. 40 C.F.R. §51.305(a). “Such strategy must take

into account current and anticipated visibility monitoring

research, the availability of appropriate monitoring tech-

niques, and such guidance as is provided by the Agency.”

Ibid.

The regulatory history of the 1980 visibility regulations

indicates that the use of sophisticated models and moni-

toring techniques are permissible at the discretion of the

implementing state. In the preamble to the visibility regu-

lations, EPA noted that “[i]nformation derived from

modeling and monitoring can, in some cases, aid the

17

States in the development and implementation of the visi-

bility program. In the first phase, the states are required

to consider available modeling and monitoring informa-

tion. The use of such information will be at the discretion

of the State, and the States are not required to establish

monitoring networks or perform modeling analyses.” 45

Fed. Reg. at 80,085-86. Thus, the regulations do not

prohibit the use of mathematical models and monitoring

techniques, they merely do not “routinely require their

use in a regulatory program for sources, either new or

existing, that may impair visibility.” Jd. at 80,085 (em-

phasis supplied). By clear implication, the regulations

permit the use of sophisticated attribution techniques when

a state—or EPA standing in the shoes of the state—

deems it appropriate.

Restricting states to visual observation and simple mon-

itoring techniques would deprive states—and EPA, where

necessary—of valuable information in their efforts to

make accurate attribution determinations. Entities imple-

menting the visibility regulations must be permitted to rely

on sound science rather than be forced to close their eyes

to it.

Second, petitioners take issue with EPA’s ultimate con-

clusion that visibility impairment is attributable to NGS.

EPA’s scientific determination that visibility impairment

in the Grand Canyon is reasonably attributable to NGS is,

however, a factual finding entitled to substantial judicial

deference. This is particularly so where EPA evaluated

the methodologies and conclusions of no fewer than five

major studies examining the impact of NGS emissions on

the Grand Canyon. The Ninth Circuit concluded that

“the technical, scientific record more than adequately

supports EPA’s reasonable conclusion that visibility im-

pairment in the Grand Canyon is ‘reasonably attributable’

to NGS.” Pet. App. 2732. That court properly deferred

to EPA’s “reasonable interpretation of its own regulations

18

and statutory mandate.” Jbid. There is no reason for

further review by this Court.

Finally, there is no merit to petitioners’ suggestion that

EPA proceeded wrongly in light of Arizona’s default.

EPA’s Part 51 visibility regulations refer to the duties of

“states” in the SIP planning process. The regulations’

principal purpose is to set forth the requirements that

SIPs—and therefore states—must meet to comply with

the visibility regulations. The references to “states” is

understandable in this context. However, when a state

defaults on its responsibility to submit a visibility S[P—

as Arizona has here—Section 110(c)(1) of the Clean

Air Act, 42 U.S.C. § 7410(c)(1), requires EPA to prom-

ulgate a visibility FIP that fulfills the requirements of

the Part 51 visibility regulations. Thus, Section 110(c)

(1) requires EPA to stand in the shoes of the defaulting

state and exercise all of the rights and duties under the

regulations that would otherwise fall to the state. EPA

has, on several occasions, fully explained its regulatory au-

thority to act in the place of the “state” under Section

110(c)(1) when the state fails to submit an adequate

visibility SIP. See, e.g., 56 Fed. Reg. at 50,173 & n.2; 54

Fed. Reg. at 36,952. This interpretation of EPA’s regu-

latory authority is eminently reasonable and thus entitled

to deference. See Mullins, 484 U.S. at 159; Udall, 380

USS. at 16."

T Petitioners contend that EPA’s authority to conduct monitoring

to attribute visibility impairment after it disapproves a SIP rests

under 40 C.F.R. § 52.26 rather than 40 C.F.R. §§ 51.300-51.307.

However, even if this were true, section 52.26(c) provides sufficient

flexibility to allow EPA to use any monitoring technique the Agency

deems appropriate to determine whether visibility impairment is

attributable to a source. The regulation instructs the Agency to

“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 ob-

servation, or (vi) ether appropriate technology.” 40 C.F.R. § 52.26

(c) (83) (emphases supplied). This language provides EPA with con-

Riibietasias (n+

19

CONCLUSION

For the foregoing reasons, and those in the opinion

below, the petition should be denied.

Respectfully submitted,

PATRICK M. RAHER *

JOHN C. KEENEY, JR.

JAMES D. FREEMAN

HOGAN & HARTSON

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5600

Counsel for

* Counse! of Record Respondents-Intervenors

siderable discretion to determine appropriate monitoring techniques.

Moreover, the preamble language in the Federal Register notice

announcing the promulgation of Section 52.26 equates the monitor-

ing required under this section with the monitoring required pursu-

ant to 40 C.F.R. § 51.305. See 50 Fed. Reg. 28,544, 28,545 (July 12,

1985).