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

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| : ; ; i .

No. 92-2052 | AUG 241953 |

| OFFicE OF !

IN THE SUPREME COURT OF THE btes stares — ——

October Term, 1993

CENTRAL ARIZONA WATER CONSERVATION

DISTRICT, et al.,

Petitioners,

Vv.

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 AMICUS CURIAE STATE OF

ARIZONA IN OPPOSITION

GRANT WOODS

Arizona Attorney General

CHARLES SCOTT PIERSON

(Counsel of Record)

BERYL I. DULSKY

JON RB. FIEGEN

Assistant Attorneys General

1275 West Washington

Phoenix, AZ 85007

Telephone: (602) 542-1610

QUESTION PRESENTED

Did the Court of Appeals properly

uphold an Environmental Protection Agency

regulation which will significantly limit

the sulfur dioxide emissions ffrom_ the

Navajo Generating Station, the single

largest source of sulfur dioxide emissions

in the State of Arizona?

"In the Grand Canyon, Arizona has

a natural wonder which, so far as

I know, is in kind absolutely

unparalleled throughout the rest

of the world. .. . Leave it as it

tm You cannot improve on it.

The ages have been at work on it,

and man can only mar it. What you

can do is to keep it for your

children, your children's

children, and all who come after

you, as the one great sight which

every American .. . should see."

President Theodore Roosevelt

speaking at the South Riin

of the Grand Canyon, May, 1903

ii

QUESTION

TABLE OF

INTEREST

ARGUMENT

ks

TABLE OF CONTENTS

PRESENTED.

AUTHORITIES.

OF THE AMICUS CURIAE

THE NINTH CIRCUIT COURT OF

APPEALS CORRECTLY AFFIRMED

THE VALIDITY OF THE CHAL-

LENGED EPA REGULATION WHICH

WAS ADOPTED PURSUANT TO LAW

AND 1S ESSENTIAL TO CURTAIL

THE IMPAIRMENT OF VISI-

BILITY AT THE PARK

A. THE TECHNICAL DATA

UPON WHICH EPA RELIED IN

MAKING ITS DETERMINATION

THAT THE NGS CAUSES

VISIBILITY IMPAIRMENT AT

THE PARK IS VALID.

B. THE CREATION OF _ THE

GRAND CANYON VISIBILITY

TRANSPORT COMMISSION IN THE

1990 CLEAN AIR ACT AMEND-

MENTS UNDERSCORES THE CLEAR

INTENT -.OF CONGRESS TO

STRENGTHEN THE VISIBILITY

PROTECTION PROGRAM AT THE

CANYON

eS

Page

11

Cr CLEAR VISIBILITY AT

THE PARK IS VITAL TO THE

STATE'S TOURISM INDUSTRY

D. THE COST TO NGS _ TO

COMPLY WITH THE EPA RULE

WILL ACHIEVE THE GREATEST

LEVEL OF EMISSION REDUC-

TIONS AT THE LEAST COST

E. THE STATE HAS BEEN

DILIGENT IN REDUCING SULFUR

DIOXIDE EMISSIONS THROUGH-

OUT THE STATE. AS NGS IS

THE STATE'S LEADING PRODU-

CER OF SULFUR DIOXIDE, ITS

EMISSIONS MUST BE REDUCED

AS WELL

IF THE EPA RULE IS

VACATED AND NGS IS NOT RE-

QUIRED TO REDUCE ITS S02

EMISSIONS, THE STATE MAY BE

REQUIRED TO OBTAIN SIMILAR

REDUCTIONS FROM OTHER

SOURCES WITH MUCH GREATER

DISRUPTION TO THE

STATE'S INDUSTRIES

CONCLUSION

iv

~L3

15

a?

19

as

TABLE OF AUTHORITIES

CASES: Page

Central Arizona Water Conservation_

District, et al, v. United States

Environmental Protection Agency,

920 F.20: 153i (Sth Cis, 2993) . . 1

Kamp _v,. Hernandez, 752 F.2d 1444

(9th Cir.), modified,

778 F208 S27 (9th Cir. 1985). 7

UNITED STATES STATUTES

42 U.6.C. § 7410 5

42 U.S.C. § 7410(a)(3). 4

OSU Oe Brera s&s boo oe BS ee

42° 0.:6.¢...% 74092: ee:

42 U.S.C. § 7492(d) .19

42 U.S.C. § 7492(£) ay

CODE OF FEDERAL REGULATIONS (1991 ed,)

0 C.F... 51.300-51.307

40 C.F.R. 591.302

§

40 C.F.R. § 51.301(s)

§

40 C.F.R. §

60.43(a) (2)

ey

Page

FEDERAL REGISTER:

596 Fed. Reg. 5,177 (Feb. 8, 1991). ... .17

96 Fed. Reg. 5,180 (Feb. 8, 1991)... . .14

96 Fed. Reg. 50,172 (Oct. 3, 1991) ....6

96 Fed. Reg. 50,176 (Oct. 3, 1991) .... 5

26 Fed. Reg. 50,177 (Oct. 3, 1991) ... .15

96 Fed. Reg. 50,178 (Oct. 3, 1991) ... .16

LEGISLATIVE MATERIAL

136 Cong. Rec. S2887 anil ed.

March 21, 1990) .... ens wo © weede

136 Cong. Rec. S3814 ction ed.

MBCEL 3, A299). « « « ws ae” eK ee

136 Cong. Rec. S3815 ee * ed.

Apeii 3, i992). . . — oe oe oe es

ARIZONA STATUTES & RULES

BcRsB. BF OO-G0l «2 tk kk; hh ee ar

Aut, @ OB9G0G 2. 2 ws tht th th tt tt

Arizona Administrative Code

MAO=2=50S(G)U2) 1. 2. . ss st ts wt GAT, 18 -

vi

INTEREST OF THE AMICUS CURIAE

In this case, the Court of Appeals

for the Ninth Circuit upheld the

Environmental Protection Agency's ("EPA")

final rule which limited the sulfur dioxide

(SO,) emissions from the Navajo

Generating Station ("NGS") for the

protection of the air quality at the Grand

Canyon National Park ("Park") pursuant to

the Clean Air Act's Visibility Protection

Program. This brief is submitted in

Support of Respondent EPA's opposition to

the petition of Central Arizona Water

Conservation District, et al., for a writ

of certiorari to overturn the decision of

the Court of Appeals.?’

i/ Central _Arizona___ Water

Conservation District, et al. v. United

States Environmental Protection Agency, 990

P.20 1331 (9th Circ. 1993).

In this action, the State of

Arizona speaks as the primary regulator of

NGS's air pollution emissions, as well as

the host to the millions of persons’ who

visit the Park annually, all of whom are

adversely affected by NGS's sO, emissions

within the Park.

The Grand Canyon is justly de-

scribed as one of the greatest natural

wonders of the world, a geologic display

without equal, as well as a scenic beauty

of unforgettable majesty. The Park, under

federal protection since 1893, is perhaps

the nation's preeminent national park and

is also Arizona's own crown jewel.

Arizona is immeasurably enriched

by the location of the Canyon within its

borders, yet the Canyon cannot be truly

experienced and enjoyed unless the air at

the Park is clear. On some days, a visitor

Standing on the rim of the Canyon cannot

~

see the opposite rim due to the air

pollution from NGS (located near _ Page,

Arizona, approximately 15 miles from the

Park), the single largest source of SO,

emissions in the State of Arizona, emitting

over 70,000 tons of uncontrolled SO, per

2

year. Petitioners’ Excerpts of Record

"ae > «6856—CUat 13. National Park Service

studies project that high pollution days in

the Canyon will increase from 9 to about 30

days per summer by the year 2010 if

expected increases in sulfate pollution

OcCcUr. 136 Cong. Rec. S2887 (daily ed.

March Zi, 1990). NGS emissions also

adversely affect neighboring states, as

well as the eight national parks on the

Colorado plateau. Respondent's Sup-

plemental Excerpts of Record ("SER") 2 at

ll-l. All Park visitors, from hikers deep

in the Canyon to visitors viewing and

photographing the Canyon from the Rim, are

ne

adversely affected by visibility impairment

at the Canyon. Arizona Supplemental

Excerpts of Record ("AZ SER") 1.

Federal and state law mandate the

State of Arizona to Protect the State's air

quality. Section 110(a)(3) of the Clean

Air Act, 4242 VU.8.c. § 7410(a)(3), places

primary responsibility for the prevention

of air pollution with the individual

States. The Arizona Legislature, like the

Congress before st, has declared air

pollution to be a= severe public health

threat which must be remedied. Section

49-401, Arizona Revised Statutes Annotated,

declares a state policy of no further air

quality degradation and orders the Arizona

Department of Environmental Quality

("ADEQ") to abate air pollution. The State

of Arizona, through ADEQ, regulates’ the

SO, emissions from NGS Pursuant to state

(Ariz. Rev. Stat. Ann. § 49-426) and

federal law (42 U.S.C. § 7410).

The State has been an active

participant in the federal government's

determination that NGS contributes to

Visibility impairment at the Park which

must be abated pursuant to 42 1

§ 7491, the Clean Air Act's Visibility

Protection Program. The State has given

Substantial technical advice to EPA to

assist EPA and National Park Service

Studies of air Quality at the Park and at

NGS. The State, through the Governor's

office and ADEQ, participated in the

negotiations with NGS and EPA which

resulted in the present EPA rule limiting

so, emissions from NGS Pursuant to 42

U.S.C. § 7491 and 40 CuF SR. §§

51.300-51.307. 596 Fed. Reg. 50,176 (Ost:

3, 1991). Further, upon EPA approval, the

State will enforce the EPA rule at NGS as

it currently enforces NGS compliance with

~

ADEQ's own SO, emission limitation rule,

R18-2-503(G)(1) of the Arizona Administra-

tive Code.

I. THE NINTH CIRCUIT COURT OF APPEALS

CORRECTLY AFFIRMED THE VALIDITY OF

THE CHALLENGED _EPA _ REGULATION

WHICH WAS ADOPTED PURSUANT TO LAW

AND IS ESSENTIAL TO CURTAIL THE

IMPAIRMENT OF VISIBILITY AT THE

PARK

A. THE TECHNICAL DATA WHICH EPA

RELIED. _IN MAKING _ITS

DETERMINATION THAT NGS CAUSES

VISIBILITY IMPAIRMENT AT THE

PARK IS VALID

Arizona supports EPA's determin-

ation that NGS'‘'s SO, emissions contribute

to the impairment of visibility in the Park

and must be reduced through the installa-

tion of pollution control technology

pursuant to 40 C.F.R. § 51.302. EPA's

final rule (56 Fed. Reg. 50,172 (Oct. 3,

1991)) governing SO. emissions from the

=

NGS is reasonable, technically sound, and

was adopted in accordance with the Clean

Air Act and federal rulemaking require-

ments. AS a public agency which also

regulates air pollution and promulgates air

quality rules, ADEQ fully Supports EPA's

technical data, its Procedures, its

response to public comments and its final

rulemaking action. EPA'S promulgation of

the challenged rule fits Squarely within

the requirements of the Statutes and

regulations. See Kamp _ v., Hernandez, 752

F.2d 1444 (9th Cir.), modified, 778 F.24

527 (9th Cir. 1985) (upholding Arizona's

unique "multi-point rollback" system in its

State implementation plan for so,

emissions control for copper smelters as a

"reasonable" interpretation of the Clean

Air Act).

ADEQ submitted written comments to

EPA in support of the Winter Haze Intensive

tt.

Tracer Experiment (WHITEX) study, which EPA

relied upon, inter alia, in making its

determination that visibility impairment at

the Park is reasonably attributable to

NGS. As part of its technical review of

the WHITEX study, ADEQ reviewed weather

conditions in the region over a one hundred

year period (January and February, 1899

through 1980) to determine what percentage

of time meteorological conditions suitable

to the accumulation of air pollutants in

the NGS vicinity occurred, with Subsequent

transport of those pollutants to the Park.

AZ SER 4. ADEQ found that the weather

conditions which result in air stagnation

in the Park area occurred, on average,

greater than fifty percent of the time

during the winter months, further

emphasizing the technical soundness of

EPA's determination that NGS contributes to

the impairment of visibility at the Park,

aie

under the Clean Air Act.

Commenting on the EPA rule,

The test of RAI,

[reasonably attributable

impairment ] Currently codi-

fied in regulation requires

that impairment be "attrib-

utable by visual obser-

vations or any other

technique the State deems

appropriate." [40 C.F.R.

51.301(s) ] This is in

accordance with traditional

Practice of police powers

necessary to protect Public

health, Safety, and welfare.

The basic test of

applicability of environ-

mental regulation, at all

levels of government, has

been “reasonable" evidence;

thus everything from air

quality standards to indi-

vidual source permitting is

based on a combination of

scientific and engineering

evaluations and "common

sense" interpretation of

Probable relationships

between emissions and

effects of pollutants. To

require multi-million dol-

lar Studies and results

having minimal ranges’ of

uncertainty as a matter of

course would effectively

which triggers the remediation requirements

the

Western States Air Resources Council Stated:

prevent states or EPA from

timely fulfillment of their

regulatory responsibilities

under the Act.

It is especially

important that this princi-

ple of presumptive impact

based on "reasonable"

evidence be preserved in

the present proceeding,

lest the whole business of

developing emission limita-

tions or air quality stan-

dards, for any purpose,

become mired in unresolv-

able disputes over. suit-

able levels of specificity,

whether applied to indi-

vidual sources or entire

regions.

Such residual uncer-

tainty as may exist in this

or future proceedings might

be a basis for latitude in

regulatory decisions by the

Administrator or other re-

sponsible parties, but

would not be a basis ffor

regulatory paralysis.

EPA's determination that NGS's emissions

contributes to the impairment of Visibility

at the Park was based on reasonable

evidence and should not be disturbed.

ait.

VISIBILITY TRANSPORT COMMISSION IN

THE 1990 CLEAN AIR ACT AMENDMENTS

UNDERSCORES THE CLEAR INTENT OF

CONGRESS __TO ___STRENGTHEN THE

VISIBILITY PROTECTION PROGRAM __AT

THE CANYON

Congress enacted 42 U.S.C. § 7491

in 1977 for the abatement of visibility

impairment at the federal parks. In 1990,

Congress again underscored the importance

of visibility protection in the federal

parks with the creation of visibility

transport regions and commissions to assist

EPA in assessing scientific and technical

information pertaining to visibility

impairment in federal parks. 42. U.#.C.

§ 7492. The creation of the Grand Canyon

Visibility Transport Commission, evidences

particular Congressional concern for the

Park. 42 U.S.C. § 7492(f£).

Several senators voiced strong

support for the increased protection of air

quality in federal parks contained in the

wj].—

1990

amendments to the Clean Air Act. In

Statements supporting the creation of the

Grand Canyon Visibility Transport

Commission, both Senators DeConcini and

McCain identified NGS as a Significant

contributor to wintertime visibility

impairment at the Park and emphasized the

importance of fully implementing the

visibility protection laws for all of the

federal parks and the Grand Canyon National

Park, in particular. 136 Cong. Rec.

$3814-15 (daily ed. April 3, 1990).

Further, Senator Domenici stated:

Id.

Where a source of

Visibility impairment has

been identified and _ regu-

latory action is warranted,

we must be prepared to act

decisively to prevent undue

delay or obstruction. 1 &

the administrative process

breaks down, which we hope

it will not, I would want

to work with my colleaques

to legislatively remedy

such a situation.

at S3815. Significantly, Senator Wirth

al2«

stated that the visibility transport

regions and commissions provided by the

1990 Clean Air Act Amendments provide "new

tools" for EPA and federal land managers

"to work together with Governors of

affected states and others to achieve the

goals set by Section 169A(a) of the Act.”

136 Cong. Rec. S2887 (daily ed. March 21,

1990). (emphasis added). If the EPA rule

is vacated, administrative action will be

unduly delayed Or obstructed and the

Congressional goal in passing and amending

the Clean Air Act will be thwarted.

Ci CLEAR VISIBILITY AT THE PARK IS

VITAL TO THE STATE'S | TOURISM

INDUSTRY

The Grand Canyon is the premiere

tourist attraction in a state where tourism

is the State's second largest industry.

Over 3.5 million people visited the Park in

1987; approximately 662,000 of these people

nite

visited the Park during the winter months.

Sam &, AGEs 4k. In 1989, winter attendance

at the Park wasS approximately 800,900,

approximately 21 percent of the total

annual visitation to the Park. 56 Fed.

Reg. 5,180 (Feb. 8, 1991). According to

National Park Service analysis, total sales

at the Park, direct and indirect, from

tourism and tourism supported businesses

were over 35 million dollars in the 1984-85

winter season, rising to over 55 million

dollars in the 1986-87 winter season. The

tax base added by tourism rose from over 2

million dollars in the 1984-85 winter

months to over 3 million dollars in the

1986-87 winter imonths. AZ SER 1. EPA

Studies report that the economic benefits

of preserving visibility at the Park are

3.4 billion dollars annually, for a net

present value of approximately 31.8 billion

dollars. Id. Clearly, the cost of

=

continued failure to reduce the level of

air pollutants in the Par:: exceeds greatly

the cost to control those pollutants at

NGS.

Salt River Project ("SRP"), the

Operating agent for NGS, estimate the

Capital cost of compliance with the

Challenged regulation to be 430 million

dollars, the total estimated levelized

annual cost to be 89.6 million dollars, as

contrasted with 510 million dollars and 106

million dollars, respectively, under the

regulation originally proposed by EPA. 56

Fed. Reg. 20,177 (ost. Ss 1991). The

owners of NGS do not challenge this

regulation. Having negotiated the terms of

this regulation with EPA in a manner which

ois.

—

reduced the costs of compliance, the owners

of NGS have agreed to assume these control

costs. Further, NGS was originally built

to accommodate wet flue gas desulfuriza-

tion, an economically proven control

technology for meeting EPA's 0.10 ]b/MM Btu

SO, emission limitation. 56 Fed. Reg.

50,178 (October 3, 1991).

Secretary of the Interior Bruce

Babbitt, Arizona's former Governor and

Attorney General, testified concerning his

twenty years of involvement with SRP and

NGS and of the early commitments made by

the Bureau of Reclamation and SRP to

install state-of-the-art emission controls

at NGS. SER 3 at 41-47. Interior

Secretary Babbitt's concern for the

preservation of air quality over the Park

echoes the statement made in 1970 by then

Interior Secretary Walter J. Hickel, who

atte

stated, regarding the proposed NGS, that:

The Grand Canyon area of

the Colorado River is of

particular concern to me.

We must not allow anyone to

pollute the environment

there, and it would be

unthinkable for us to pol-

lute it ourselves.

56 Fed. Reg. 5,177 (Feb. 8, 1991).

E. THE STATE HAS BEEN DILIGENT _IN

REDUCING SULFUR DIOXIDE EMISSIONS

THROUGHOUT THE STATE, AS NGS IS

THE STATE'S LEADING PRODUCER OF

SULFUR DIOXIDE, 1TS EMISSIONS MUST

BE REDUCED AS WELL

Both EPA and Arizona have taken

numerous actions’ to reduce sO, emissions

to improve the quality of the State's air.

40 C.F.R. § 60.43(a)(2) limits SO, dis-

charges in excess of 1.2 pounds per million

Btu. An ADEQ rule limits NGS to not more

than 1.0 pound of so, per million Btu.

Arizona Administrative Code R18-

2-503(G)(1). In 1989, ADEQ amended the NGS

operating permit to require the facility to

begin imonitoring its sO. emissions in

“i

Order to track the facility's compliance

with Arizona Administrative Code R18-2-

503(G)(1).

Further, the Asarco copper smelter

in Hayden, Arizona, installed in 1983 a

flash furnace which increases so, Capture

efficiency under the terms of a 1981

consent decree with EPA. EPA and ADEQ

entered into a consent decree in 1987 with

the Phelps Dodge copper smelter in Douglas,

Arizona, which caused the smelter, one of

the oldest in the country, to cease

operations. The Magma copper smelter in

San Manuel, Arizona installed a flash

furnace under the terms of a consent decree

entered into in 1988 with EPA and ADEQ.

Three other copper smelters in Arizona

Closed down during the 1980s, at least in

part due to the projected costs of Clean

Air Act emission controls.

wits

These closures caused major _ and

unavoidable economic disruption to some of

Arizona's rural communities, yet they were

necessary to prevent further deterioration

of the State's air quality. No such

economic hardship may be even colorably

argued by Petitioners herein, even assuming

that their estimated cost increases

resulting from utility rate increases by

the owners of NGS are correct.

PF. IF _ THE EPA RULE _ IS_VACATED

AND NGS IS NOT REQUIRED TO

REDUCE ITS 502 EMISSIONS,

THE STATE MAY BE REQUIRED 70

OBTAIN SIMILAR REDUCTIONS

FROM OTHER SOURCES WITH MUCH

GREATER DISRUPTION TO THE

STATE'S INDUSTRIES

If the EPA rule is vacated and NGS

is not required to curtail its sO,

emissions, the State may well be required

to obtain SO, reductions elsewhere. 42

. UJ.6.C. 7492(d) requires a visibility

transport commission to submit recommen-

dations to EPA regarding the imposition of

the Clean Air Act's Part D requirements for

nonattainment areas, which include the

requirement that new major Stationary

sources comply with the “lowest achievable

emission rate" limitation, which is’ the

most stringent emission limitation standard

imposed under the Clean Air Act. Such

facilities within the Grand Canyon area

could be required to meet this exacting

standard were NGS to escape = regulation

under 42 U.S.C. § 7491 by the invalidation

of EPA's rule herein.

Requiring certain industries in

northern Arizona to submit to the most

stringent environmental controls yet

permitting the NGS, the single greatest

Single source of SO, emissions in the

State and the second greatest source of

sO, emissions in the western United

~20~

States, to evade the requirements of 42

¥.5.¢, § 7491, would be a manifest

inequity, especially where’ the federal

record shows that NGS does contribute to

Visibility impairment at the Park,

CONCLUSION

The decision of the Court of

Appeals for the Ninth Circuit correctly

upheld the EPA rule. Arizona requests the

Court to deny Central Arizona Water

Conservation District's petition.

RESPECTFULLY Submitted,

GRANT WOODS

Attorney Genera]

State of Arizona

PST

CHARLES SCOTT PIERSON

(Counsel of Record)

BERYL I. DULSKyY

JON B. FIEGEN

Assistant Attorneys

General

=