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

No. 92-2052 AUG 25 1993

OFFICE Ob wie OLERK

In the Supreme Court of the Giuted States

OCTOBER TERM, 1993

CENTRAL ARIZONA WATER CONSERVATION

DISTRICT, ET AL., PETITIONERS

Vv.

E;NVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

DREW S. DAYS, III

Solicitor General

MYLES E. FLINT

Acting Assistant Attorney General

Scott A. SCHACHTER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

GERALD YAMADA

Acting General Counsel

ALAN ECKERT

Associate General Counsel

VICKIE PATTON

Attorney

Environmental Protection Agency

Washington, D.C. 20460

er ee —

BEST AVAILABLE COPY ack

QUESTION PRESENTED

Whether the court of appeals correctly upheld the En-

vironmental Protection Agency’s determination that vis-

ibility impairment in Grand Canyon National Park is

“reasonably attributable” to the Navajo Generating Sta-

tion, a major coal-fired power plant located near the

Park.

TABLE OF CONTENTS

Page

Opinion below ...................sssessccsccsssenssssessecererscccesssssnsvscsoesees 1

To csenbasnebeabasiansbisosncnene adi |

oss cc cneweacedes iinndbonnennnaanategs 2

I icc cckiclonacinninincabsnnhsvbhnistanssesavsevensorviesssverssnesesess vd x

Neen ee en es cena cud sdlenansibbnasansdsiseneane 13

TABLE OF AUTHORITIES

Cases:

Arkansas v. Oklahoma, 112 S. Ct. 1046 (1992) .......... 10

Ellis v. Dizon, 349 U.S. 458 (1955) ...................cccsceee. i)

Maine v. Thomas, 874 F.2d 883 (Ist Cir. 1989) .......... 12, 13

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

Statutes and regulations:

Clean Air Act, 42 U.S.C. 7401 ef seq. ............ccsceecceceserseees 2

NE Ee” SURO cccicenapnusnsensssnsgnsvvesesscvnsscencetnesosenses 3

© 2iGtarens), 42 U.S.C. T410CaKANW) ...2.22000..ccc0sc0sc000 3

EE ME BUTEA, TRIED sccscsrencecvssesscnssccesnsecnscscnsenne 5, 8, 10

S 110(eK1), 42 U.S.C. TAIOCEM1) ......2....02....ccccccrecereseees 3

§ 162(a), 42 U.S.C. T4T2(a) ................ccccccccrscceccescrecceees 2

I EE EER, WENDEL cicanexsecesensoncscevsnvercosrecrevscesenes 2, 3, 4, 5

8 1G0A(eX1), 42 U.S.C. T491(a)(1) .................crcccecreeeees 2

§ 169A(a)(4), 42 U.S.C. T491 (a4) «0.0... cee ceee eee eee eeees 2

SS, BE UEC. TEDI(DNZ) ........00rcressascceccseccess 3

§ 169A(g)(5), 42 U.S.C. T491(g)(5) «20... eee eeeeeeeeeeeeeeeeees 2

§ 169A(g)(6), 42 U.S.C. T491(g)(6) «22... ceeeeeeeeeeeeeeeeeeees 2

§ 169B(d)(2)(C), 42 U.S.C. 7492(d)(2)(C) ....... eee eee eee 4

© BOB), 4B U.S.C. TEOBGD) ..........cccccceccrssccceccsvecnsssnecenees 2

OE gS Eee 13

Neen nn es acaunhastanenekatnnacsssnoncnassees 10

Bt. P ....ccrnsnecsescosscsccccnensrsessscossnersnescssssccssovccccccaseeeees 3

Nice an binsessasansenccsvecnnesees 4,8,9

Ne coc cescnchaseeaesinascenransnenossenseis 4

Ne neal ilipaschbexbaastecieneqenncnse 5

ee EE (ee Tac ueaaahamunecae tee 4

Iv

Regulations—Continued: Page

BPOECOUEE DE CINE) csdceseensnvvceccsnacucanvarcusvssanuccusciures 4

40 C.F.R.:

Ftv WE assent anabeatiahs dg mnkgpekakuesuoasaunuecedionioie cirereecsea does 10

SUUNUE, NET I csc serch deus spiaausacice-tvencaccoupewenesvemusinuaoee 9

INNS MIEN nn c.cncs vise Vcayeussadeuukcasaisaiebmactsonutncid’ 9

IIE: MUI hae oie cevpucins tens coeutaaceutvedgreakeeuescceictian 9

Pt. 81:

NUE HI SNOPES aircasctystn snuncuaucnssesnssianeniaiaebalinnnserdenete 2

Miscellaneous:

136 Cong. Rec. (1990):

Dh Re We Sl EF oe cenatscosccarncansescatncsaamneces 5

pp. S3814-S3815 (daily ed. Apr. 3) ..........ccccceceeeeeeeeeeeeees 5

i, ome MO ON, I MD swe al aius dash cack coseeucecnceeedsaeees 5

45 Fed. Reg. (1980):

She SU BN aes canbivohdapcasdueceeedasniececs nets cum eceredeanaceaenaieitadon 1]

Ih; SEINE, sata risdcaan cuccalestaabensdusciccnasiavinieesamcemecnseaiiaaenier 3

i See vats butaincovceaceaivncaceaiuincaimnsuonuaromalaaanieuedsomaden 4, 11

iy URED onenseipachancensdunasscausvetedoauiscuspedusmiierciieioueteics 4

i EIN sp escapus satlnrshaavadouceeiasaseMcadadeetcesiaenerdandonsmesiaais 4,11

53 Fed. Reg. (1988):

ih. SEMI Wits essshaisicsee dies pbienincadiacaolc ke dadeauatehoarunsaensceumekiaemetes 12

i. ee NNER sncuke cicisaudatunontenisisasueqununachenataamies saeoneint 12

54 Fed. Reg. (1989):

ic Se NEEDY hats citoneasactenckseencGvansesneehsecnuvaseesansspenaties 5

Wi EE askosekaaalaniuabing scannddcenas Aacorninieentcedsinaaaateunauecsaase 9

56 Fed. Reg. (1991):

Bs Sasa WO av ariscedenncsachastrioussdeyndsbelabstaseleuasdicaimaceaaa 6

Ds Ma ET bias denensddon cjanidia em cneianaadenedaioate 6

Di: Fee See sctichanuhranecuulecsuccranitedaseacthaneee ataseeet marian cee 6

pp. 5,178-5,180 ..... sand Cenanhceatabaednonndesisansbapbagninensemnnenetenones 6

is: SRM sac unpaccsccabiinn otelsagentidersnianiians olebaaenieuaonies 10

OO SS eaten te Siti itnnews rand nine eee 7

Ds. CRE ME: ¢ sacnsccicucessnesscarengadatccmsien cabal caoasaes anak ae 2,4, 7

Dh; (ESOP cnvvnascatcscincanhecbuaguccrmtaceedacses ammaeba ee 5

Di TIGRE ches nite cturiviceaseureccatnpaeiameeaacieedsouaamemneiane 5

UD. IU A PIU E TE vasavihicesclkcveicainpuasets teem teeaaenten 6

Be GEO © a yascraiesncderuacuntabeniasseaiaeneie cele eee aa eens 7

ecm aenaeeaenate e)

Miscellaneous: Page

Pi GE PE FP cis sninicstecindiebantdeeerinshentiacasiodeccncmaio 7

Ws = MMM sich covcce incucacecoseasersegevecuneasietsaeace decicemetee 7

ies SP ceed cecen enema erate Gee ns 7

Di We GE nessa cyedke concede nsnaxassdneteussdsaatunan aotubaeccenee aida eds 4

H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977) ............... 3

In the Supreme Court of the Guted States

OCTOBER TERM, 1993

No. 92-2052

CENTRAL ARIZONA WATER CONSERVATION

DISTRICT, ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 2711-

2740) is reported at 990 F.2d 1531.

JURISDICTION

The judgment of the court of appeals was entered on

March 25, 1998. The petition for a writ of certiorari was

filed on June 23, 1993. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Petitioners sought review of regulations issued by the

Environmental Protection Agency (EPA) under the

Clean Air Act (CAA), 42 U.S.C. 7401 et seq. 56 Fed. Reg.

50,172 (1991). Those regulations were designed to rem-

edy visibility impairment in the Grand Canyon National

Park (Park), which EPA found to be attributable to the

Navajo Generating Station (Navajo or NGS), a major

coal-fired power plant in northern Arizona located

approximately 15 miles from the Park. The court of ap-

peals upheld the regulations and denied the petition for

review.

1. Congress substantially amended the CAA in 1977.

As part of those amendments, Congress enacted Section

169A, 42 U.S.C. 7491, to address “visibility impairment.”

Section 169A(a)(1) set “as a national goal the prevention

of any future, and the remedying of any existing, im-

pairment of visibility in mandatory class I Federal areas

which impairment results from manmade air pollution.”

See Vermont v. Thomas, 850 F.2d 99, 100 (2d Cir. 1988).

“Mandatory class I Federal areas” are certain national

parks, wildernesses and international parks described in

42 U.S.C. 7472(a), which may not be designated as other

than class I. 42 U.S.C. 7491(g)(5).. The Park is such an

area. 40 C.F.R. 81.403. Those areas are the responsibil-

ity of federal land managers such as the Department of

the Interior (DOI). 42 U.S.C. 7602(i). “[V Jisibility im-

pairment” “include[s| reduction in visual range and at-

mospheric discoloration.” 42 U.S.C. 7491(g)(6).

The EPA is required to issue regulations to assure

“reasonable progress toward meeting the national goal,”

42 U.S.C. 7491(a)(4), including requiring each State with

a class I area where visibility is an important value to

3

| revise its state implementation plan (SIP)' to contain

| “such emission limits, schedules of compliance and other

measures as may be necessary to make reasonable

progress toward meeting the national goal.” 42 U.S.C.

7491(b)(2). Congress was especially concerned about vis-

ibility impairment in “areas of breathtaking panorama,”

including the Grand Canyon: “[A]reas such as the Grand

Canyon * * * have encountered a serious problem:

emissions from powerplants have cast, or threaten to

| cast, a pall in the atmosphere that drastically interferes

| with good visibility. This visibility problem is caused

| primarily by emission into the atmosphere of sulfur diox-

| ide * * * from inadequate|ly] controlled sources.” H.R.

| Rep. No. 294, 95th Cong., Ist Sess. 203-205 (1977). Navajo

was one of two power plants singled out: “‘ Much of this

[reduced visibility] can probably be attributed to emis-

sions from powerplants such as * * * Navaljljo.’” Jd. at

204 (citation omitted).

2. EPA originally promulgated regulations imple-

menting Section 169A in 1980. See 45 Fed. Reg. 80,084

(40 C.F.R. Pt. 51, subpt. P). Those regulations called on

affected States to develop SIPs that provide for, among

other things, identification of any existing stationary

source “which may reasonably be anticipated to * * *

contribute to impairment of visibility [which] is reason-

' Section 110 of the CAA, 42 U.S.C. 7410, provides a joint fed-

eral/state system for establishing and implementing air quality

goals, standards and emissions limitations. States must submit to

EPA for approval State Implementation Plans (SIPs) containing

such measures as necessary or appropriate to meet applicable re-

quirements in the CAA. Section 110(a)(2)(J), 42 U.S.C.

7410{a\(2)(J), directs that SIPs meet the requirements of the visi-

bility protection provisions in Section 169A of the CAA. Section

110(c)(1), 42 U.S.C. 7410(c)(i), requires EPA to promulgate regu-

lations setting forth a Federal Implementation Plan (FIP) when a

State fails to submit a required SIP or SIP revision.

_ 4

ably attributable to that existing stationary facility,” 40

C.F.R. 51.302(¢)(4)(), and “measures * * * necessary to

make reasonable progress toward the national goal.” /d.

§ 51.302(c)(2)(i). The regulations defined “visibility im-

pairment” as “any humanly perceptible change in visibil-

ity (visual range, contrast, coloration) from that which

would have existed under natural conditions.” /d.

§ 51.301(x). “Reasonably attributable” was defined as

“attributable by visual observation or any other tech-

nique the State deems appropriate.” /d. § 51.301(s). That

expansive definition was designed to provide broad

discretion to the States (or the Administrator of EPA in

the case of a FIP) in selecting appropriate methods to

attribute impairment to a source. 45 Fed. Reg. 80,094

(1980).

In the preamble to the 1980 regulations, EPA stated

that it would implement Section 169A in phases. Phase I

included the control of visibility impairment “that can be

traced to a single existing stationary facility or small

group of existing stationary facilities,” 45 Fed. Reg.

80,085 (1980), also known as “reasonably attributable”

impairment. KPA deferred addressing other types of

impairment. Specifically, EPA deferred action on

regional haze, which is “widespread, regionally

homogeneous haze from a multitude of sources which

impairs visibility in every direction over a large area,”

ibid., until, among other things, “regional scale models

become refined.” Jd. at 80,086."

“ Pursuant to the 1990 CAA Amendments, EPA established the

Grand Canyon Visibility Transport Commission (GCVTC), which

includes eight western states and is charged with transmitting to

EPA by 1995 recommendations on “the promulgation of regula-

tions under section [169A] * * * for addressing regional haze” in

the Park. 42 U.S.C. 7492(d)(2)(C). 56 Fed. Reg. 57,522 (1991); id.

at 50,172 n.l. The GCVTC is a “long-term” complement to EPA’s

efforts to remedy impairment in the Park attributable to Navajo.

5

3. Pursuant to 40 C.F.R. 51.302(¢)(1), DOI certified

the existence of visibility impairment in all class I areas

within its jurisdiction in the lower 48 States. 56 Fed.

Reg. 50,173 (1991). DOI supplemented its certification

and identified Navajo as a suspected source of reasonably

attributable visibility impairment in the Park, based on

photographic evidence. Docket A-89-02, II-D-8 at 2. In

November 1987, acting pursuant to a consent decree re-

quiring EPA to implement its 1980 regulations where

States had failed to do so, as required by Sections 110(c)

and 169A of the CAA, EPA disapproved the Arizona SIP,

among other reasons, because it did not contain provi-

sions addressing visibility impairment, and promulgated

a partial visibility FIP. See 56 Fed. Reg. 50,173 (1991).

In September 1989, EPA preliminarily concluded that

a significant portion of wintertime visibility impairment

at the Park is reasonably attributable to Navajo,*® and so-

- licited public comment. 54 Fed. Reg. 36,948-36,949 (1989).

136 Cong. Rec. 52890 (daily ed. Mar. 21, 1990). Jd. at S8814-S3815

(daily ed. Apr. 3, 1990). The GCVTC is expected to “be especially

helpful in addressing pollution sources outside the immediate

vicinity of the canyon.” Id. at S3815.

* Navajo is a 2250 megawatt coal-fired electric generating plant,

located near Page, in northern Arizona, approximately 15 miles

from the Park. 56 Fed. Reg. 50,174 (1991). Navajo emits more

than 70,000 tons of uncontrolled sulfur dioxide (SO,) per year and

is the second largest single source of SO, in the western United

States, emitting more SO, than is emitted in the entire Los Angeles

basin. Docket A-89-02A, II-D-36 at 13. SO, is transformed in the

atmosphere to visibility-impairing sulfate (SO,) particles or aerosol.

Salt River Project (SRP), an intervenor-respondent below, is the

operator of Navajo and owns 21.7% of Navajo for its own use and

benefit, and 24.8% for the use and benefit of the United States

Bureau of Reclamation. The Los Angeles Department of Water &

Power, the Arizona Public Service Company, the Nevada Power

Company, and the Tucson Electric Power Company are the

remaining owners of Navajo. 56 Fed. Reg. 50,174 & n.7 (1991).

een

6

EPA’s preliminary finding was based on the draft final

report from a 1987 wintertime field study, the Winter

Haze Intensive Tracer Experiment (WHITEX), con-

ducted by the Park Service, ibid., that, among other

things, involved the injection of a unique tracer at

Navajo that “fingerprinted” Navajo’s emissions when de-

tected downwind. Pet. App. 2720. In February 1991, after

reviewing additional information—including the final

WHITEX report, a review of the WHITEX study by the

National Academy of Sciences, preliminary results from

another Park Service monitoring study that documented

intense impairment below the rim of the canyon, and ini-

tial data analysis from a visibility study by SRP, the op-

erator and a co-owner of Navajo—EPA proposed to find

that certain winter visibility impairment episodes at the

Park are reasonably attributable to Navajo and again so-

licited comment. 56 Fed. Reg. 5,178, 5,176-5,177, 5,178-

5,180 (1991).*

After the public comment period closed, senior EPA

policy officials facilitated discussions among various en-

tities—including the Navajo owners, the State of Ari-

zona, and environmental groups—to explore more envi-

ronmentally protective and economically efficient con-

trol options. See 56 Fed. Reg. 50,176-50,177 (1991). The

meetings resulted-in a Memorandum of Understanding

(MOU) between the Navajo owners and the environmen-

tal groups. The MOU recommended to EPA a regula-

tory approach that would achieve significantly more en-

vironmental benefit at much less cost than EPA’s

proposal. EPA published the recommended regulatory

4 Based on the attribution proposal, EPA proposed to require a

70% continuous SO, emission limitation for Navajo, determined on

a 30-day rolling average, phased-in between 1995 and 1999. EPA

requested comment on this and three other control options,

including a 90% emission limitation. 56 Fed. Reg. 5178 (1991).

7

approach and reopened the public comment period. 56

Fed. Reg. 38,399 (1991).

4. In October 1991, EPA published a Final Rule con-

taining (1) EPA’s final determination that certain Visi-

bility impairment episodes in the Park are reasonably

attributable to Navajo, and (2) federal revisions to the

visibility SIP to remedy such impairment. 56 Fed. Reg.

50,172 (1991). EPA based the attribution finding upon ex-

tensive data, studies, analyses, reports and comments in

the record, which demonstrated that Navajo is a signifi-

cant, and at times dominant, contributor to impairment

in the Park. Jd. at 50,177. Those included data submitted

during the comment period, which confirmed photo-

graphic data from WHITEX showing that visibility be-

low the rim of the canyon is impaired more often and to a

greater degree than visibility above the rim of the

canyon. /d. at 50,180. With respect to the measures re-

quired to remedy the attributable impairment, EPA’s

Final Rule was consistent with the MOU, requiring a

90% SO, emission reduction, and providing a greater de-

gree of expected visibility improvement at a lower cost

than that originally proposed. Id. at 50,177, 50,178-50,179,

50,183.

5. Petitioners sought review of the Final Rule in the

United States Court of Appeals for the Ninth Circuit.

The court of appeals rejected petitioners’ contention that

the Final Rule impermissibly regulates “regional haze,”

noting that while Navajo was not the sole source of visi-

bility impairment at the Park, “EPA still has the statu-

tory authority to address that portion of the visibility

impairment problem which is, in fact, ‘reasonably at-

tributable’ to” Navajo. Pet. App. 2731. The court also re-

jected petitioners’ argument that EPA was limited to ad-

dressing visibility impairment directly traceable to pol-

luting plumes that are noticeable by visual inspection or

simple monitoring techniques. The court explained that

8

in promulgating a FIP under 42 U.S.C. 7410(c), EPA

stands in the shoes of the defaulting State, and that EPA

may therefore determine whether impairment is

“reasonably attributable” to a given source not only by

visual observation but also “by * * * any other tech-

nique [it] deems appropriate.” Pet. App. 2732 (quoting 40

C.F.R. 51.301(s)). The court concluded that the technical

scientific record compiled by EPA more than adequately

supported EPA’s determination that visibility impair-

ment in the Park is “reasonably attributable” to Navajo.

Pet. App. 2732, 2739-2740. Accordingly, the court denied

the petition for review.

ARGUMENT

Petitioners contend that visibility impairment in the

Park is not “reasonably attributable” to Navajo. The

cour’ of appeals properly construed the applicable statu-

tory and regulatory provisions, and its decision does not

conflict with any decision of this Court or any court of

appeals. The court of appeals’ rejection of petitioners’

fact-bound arguments does not warrant further review.

1. Petitioners renew their contention that EPA acted

beyond its regulatory authority because the visibility

impairment in the Park is “regional haze,” rather than

visibility impairment “reasonably attributable” to

Navajo. Pet. 11-19. That contention lacks merit. EPA

relied on several qualitative and quantitative scientific

analyses of extensive monitored data, which taken

together presented a clear relationship between certain

visibility impairment episodes in the Park and SO,

emissions from Navajo. E.g., Docket A-89-02A, II-D-29,

IV-D-210, IV-D-164, II-D-24, II-B-19, IV-D-171, IV-D-

381, App. H. Indeed, after reviewing only one of these

studies, the National Academy of Sciences confirmed

that “NGS contributed significantly to haze in” the

Park, Docket A-89-02A, II-D-36 at 3, that “NGS emis-

i

sions significantly contributed to SO, aerosol and

resultant haze at Hopi Point in” the Park, id. at 20, and

that the “rate of SO, emissions from NGS is easily large

enough to serve as the source of sulfur measured in the”

Park. Id. at 33. The National Academy of Sciences also

concluded that “if NGS emissions were controlled, then

wintertime haze at [the Park] would most likely be re-

duced.” /d. at 5.

Petitioners nonetheless argue that EPA is without

authority to attribute visibility impairment on the basis

of “sophisticated and unproven mathematical models and

complex monitoring techniques,” but-may rely only on

“visual observation or simple monitoring techniques.”

Pet. 14. Petitioners do not really dispute, as indeed they

cannot, the court of appeals’ conclusion that no such lim-

itation can plausibly be read into the broad definition of

“reasonably attributable” in the enabling regulations—a

definition that specifically contemplates attributions

based on visual observation “or any other technique the

State deems appropriate.” 40 C.F.R. 51.301(s) (emphasis

added). Petitioners contend instead that the court of ap-

peals erred in upholding EPA’s reliance on the definition

of “reasonably attributable” in 40 C.F.R. 51.301(s) be-

cause that regulation applies only to States, and that

EPA instead should have considered 40 C.F.R. 52.26(c),

which in petitioners’ view limits EPA’s discretion in se-

lecting attribution techniques. Pet. 5 & n.3, 11 n.10.

Because petitioners failed to present their contention be-

low, it has been waived. Ellis v. Dixon, 349 U.S. 458, 460

(1955). In any event, the federal visibility monitoring

regulations at 40 C.F.R. 52.26 do not define “reasonably

attributable” impairment, id. § 52.26(b), or contain re-

medial authority.” Aside from their obvious disagree-

® Because of the large number of States in need of visibility

FIPs and in light of the on-going nature of the regulatory re-

10

ment with the result reached by EPA in this case, peti-

tioners offer no substantial argument for failing to ac-

cord EKPA’s interpretation of its own regulations the

“great deference” to which that interpretation is enti-

tled. See Arkansas v. Oklahoma, 112 S. Ct. 1046, 1058-

1061 (1992). Indeed, petitioners’ proposed interpretation

would introduce a discrepancy between the SIP and FIP

authority that would be implausible as a means of imple-

menting the statutory scheme (in which, as we have ex-

plained, SIPs and FIPs have a similar functional role).

Petitioners’ argument that EPA’s Phase I authority

is limited to impairment that is detectable by visual ob-

servation or simple monitoring techniques also distorts

the nature of SO, regulation under the Phase I regula-

tions. Phase I is not limited to visual tracing. In order

to trigger Phase I action under the 1980 regulations, it

is necessary only that impairment “can be physically

traced to a source.” Docket A-89-02, II-A-1 at 6. See also

quirements, EPA issued provisions in 40 C.F.R. Pt. 52 that func-

tioned as federal companions to the state visibility monitoring

strategy, new source review rules, and long-range strategies issued

in 1980 at 40 C.F.R. Pt. 51. 54 Fed. Reg. 36,953 (1989). EPA de-

termined that, with respect to source-attribution and remediation

provisions, it would rely on its regulations in 40 C.F.R. Pt. 51,

since “Arizona is the only State for which remedial Federal mea-

sures are even potentially needed at this time.” 54 Fed. Reg.

36,953 (1989). EPA further reasoned that it was appropriate to

interpret the references to the rights and duties of a “State” under

40 C.F.R. Pt. 51 to include the “Administrator” in the case of a

FIP issued under Section 110(c)—especially since, as the court of

appeals recognized (Pet. App. 2732), EPA stands in the shoes of

the defaulting State when acting pursuant to Section 110(c). EPA

twice solicited public comment on its interpretive view that the

Administrator, like a State, may utilize whatever techniques he

deems appropriate in making reasonable attribution findings. bid.

See also 56 Fed. Reg. 5,189 (1991). That interpretation is plainly

reasonable and, until now, has not been challenged by petitioners in

any forum.

———

11

45 Fed. Reg. 80,085 (1980). That requirement was clearly

met here. In any event, petitioners’ claim fails even un-

der their own theory. Contrary to petitioners’ premise

that SO, “does not cause visible plumes and cannot give

rise to plume blight,” Pet. 7, “sulfates can and do

contribute to visible plumes and single source haze * * *

[and sources] should be required to * * * reduce SO,

emissions where improvement in visibility is antici-

pated.” Docket A-89-02, II-A-1 at 14.

In sum, EPA’s Phase I authority extends to the type of

visibility impairment at issue in this case—impairment

caused by SO, emissions actually traced to a single facil-

ity—and that authority is not extinguished because, in

addition to photographic data and various basic analyses

of monitored data, those emissions were attributed by

relatively complex methodologies.

2. Petitioners also argue (Pet. 17-18) that EPA’s ap-

plication of its regulations in this case is arbitrary and

capricious because it is inconsistent with prior agency

interpretations of those regulations. In pressing that

claim, petitioners principally rely on the preamble to a

proposed regulation on attribution that in fact was not

adopted in the form proposed. Pet. 18 (citing 45 Fed. Reg.

34,779 (1980)). On the contrary, in response to public

comments on that proposal, EPA adopted a regulation

that gives the decisionmaker wide discretion in selecting

appropriate techniques on which to base a source attri-

bution finding. See 45 Fed. Reg. 80,094 (1980).

Nor is there merit to petitioners’ claim (Pet. 18) that

KPA’s methodology in attributing visibility impairment

to Navajo is inconsistent with the methods used in de-

clining to consider the imposition of control measures

for the protection of other class I areas. The Park rep-

resents the only instance to date in which EPA has re-

quired emission reductions at an existing source to

remedy attributable impairment. Nevertheless, EPA

12

has relied on a wide range of techniques in deciding not

to require further analysis with respect to other class I

areas. See, e.g., 53 Fed. Reg. 35,956, 35,957-35,959 (1988)

(time lapse photography and modeling for Voyageurs Na-

tional Park, Minnesota; emissions inventory analysis

and photographic data for Saguaro Wilderness, Arizona;

modeling analysis predicting potential impacts at the

Roosevelt Campobello International Park near New

Brunswick, Canada). Here, a potential problem affecting

the Park was initially uncovered by photographic data.

Docket A-89-02, II-D-8 at 2. When EPA undertook a

more detailed and thorough source-attribution analysis,

its decisionmaking involved consideration of a complete

set of monitoring data and detailed analyses of those

data. Those procedures were in no sense “inconsistent”

with those employed in declining to proceed with further

analysis of visibility impairment in other class I areas.°

Finally, there is no merit to petitioners’ contention

(Pet. 12-21) that the decision below “contradicts the de-

cisions reached” in Vermont v. Thomas, supra, and

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

Vermont case, the Second Circuit upheld EPA’s refusal

to take action on a proposal by the State of Vermont that

was designed to address regional haze in the Lye Brook

Wilderness Area. Vermont v. Thomas, 850 F.2d at 101.

The court did not interpret EPA’s Phase I regulations,

except to indicate that they did not on their face autho-

rize regional haze measures such as those proposed by

the State of Vermont. 850 F.2d at 103-104. That case

therefore simply stands for the unremarkable proposi-

tion that regional haze is not within the scope of EPA’s

6 Petitioners’ final argument—that the challenged regulations

amount to a procedurally invalid revision of the 1980 regulations

designed to address regional haze, Pet. 19-21—lacks merit because

it is premised entirely upon the erroneous supposition that EPA

acted beyond its Phase I authority in regulating haze in the Park.

|

13

Phase I regulations. The Maine case is even farther

afield. In that case, the First Circuit affirmed a district

court’s decision that it lacked jurisdiction under Section

304 of the CAA, 42 U.S.C. 7604, to compel EPA to issue

regional haze regulations. Maine v. Thomas, 874 F.2d at

885. The court did not address the scope of EPA’s au-

thority to regulate visibility under its 1980 regulations.

Neither case casts doubt on the correctness of the con-

clusion reached by the court of appeals in this case.

CONCLUSION >

The petition for writ of certiorari should be denied.

Respectfully submitted.

DREW S. DAys, III

Solicitor General

MYLES E. FLINT

Acting Assistant Attorney General

SCOTT A. SCHACHTER

Attorney

GERALD YAMADA

Acting General Counsel

ALAN ECKERT

Associate General Counsel

VICKIE PATTON

Attorney

Environmental Protection Agency

AUGUST 1993