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

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Orrivc OF THE CLERK

No. 92-2052

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CENTRAL ARIZONA WATER CONSERVATION DISTRICT, et al.,

Petitioners,

ves

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

REPLY BRIEF IN SUPPORT OF

CENTRAL ARIZONA WATER CONSERVATION

DISTRICT’S

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Marvin S. Cohen, Esq.*

Leslie A. McCarthy, Esq.

SACKS, TIERNEY & KASEN

2929 N. Central, 14th Floor

Phoenix, Arizona 85012-2742

Telephone: (602) 279-4900

Counsel of Record *

Douglas K. Miller, Esq.

CENTRAL ARIZONA WATER

CONSERVATION DISTRICT

23636 North 7th Street

Phoenix, Arizona 85024

Telephone: (602) 870-2333

Attorneys for Petitioner

Central Arizona Water

Conservation District

Robert S. Lynch, Esq.

2001 North Third Street, Suite 204

Phoenix, Arizona 85004-1472

Telephone: (602) 254-5908

Attorney for Petitioners Central

Arizona Irrigation and Drainage

District and Maricopa-Stanfield

Irrigation & Drainage District

William D. Baker, Esq.

ELLIS, BAKER, CLARK &

PORTER, P.C.

4444 North 32nd Street, Suite 200

Phoenix, Arizona 85018

Telephone: (602) 956-8878

Attorneys tor Petitioner New Magma

Irrigation & Drainage District

TABLE OF AUTHORITIES

a

I].

Il.

TABLE OF CONTENTS

THE EPA FAILED TO PROMULGATE PHASE

Il VISIBILITY RULES PRIOR TO USING

COMPLEX ANALYTICAL TECHNIQUES TO

ATTRIBUTE VISIBILITY IMPAIRMENT TO

Re, tres ey hea ca kk tay

PHASE I REGULATION IS LIMITED TO

VISIBILITY IMPAIRMENT ATTRIBUTABLE TO

A SOURCE BY VISUAL OBSERVATION OR

SIMPLE MONITORING TECHNIQUES. .......

GAMO, ee

2

TABLE OF AUTHORITIES

CASES Page

Carlyle Compressor v. Occupational Safety, Etc.,

Os Fe re Ce ed 5 6a BS es Se 4

Maine v. Thomas, 874 F.2d 883 (Ist Cir. 1989) .......... 8

PPG Industries v. Harrison, 660 F.2d 628 (5th Cir. 1981) ...4

Vermont v. Thomas, 850 F.2d 99 (2d Cir. 1988) .......... 8

RULES

Rule 15.6. Rules of the Supreme Court of the United States .. . 1

Rule 29.1, Rules of the Supreme Court of the United States... 1

STATUTES

42 U.S.C. § 7491 (Clean Air Act. § 169A) ........... 2,8

REGULATIONS

Oe ee ee ss ee ee

ee Se Ee er se gmase x ta ee

45 Fed. Reg. 34762 (May 22. 1980) ...........:... 2,8

45 Fed. Reg. 80084 (December 2, 1980) ............ :

54 Fed. Reg. 36948 (September 5. 1989) .............. 7

56 Fed. Ree: 3175 (Weruaty & 1991) . 2. a, 4

56 Fed. Reg: 30172 (October 3, 1991) - 2. cs. 3,

iil

MISCELLANEOUS

BART Guidelines, Docket A-89-02, II-A-1

No. 92-2052

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CENTRAL ARIZONA WATER CONSERVATION DISTRICT, et al.,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

REPLY BRIEF IN SUPPORT OF

CENTRAL ARIZONA WATER CONSERVATION

DISTRICT’S

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Pursuant to Rule 15.6, Rules of the Supreme Court of the

United States, Central Arizona Water Conservation District

(“CAWCD"), Central Arizona Irrigation and Drainage District,

Maricopa-Stanfield Irrigation and Drainage District and New

Magma Irrigation and Drainage District (collectively, "Petitioner")'!

respectfully submits its reply in support of the Petition for a Writ of

Certiorari to the United States Court of Appeals for the Ninth

Circuit filed by Petitioner. This reply responds to the brief filed by

the Environmental Protection Agency ("EPA") opposing the Petition

for Writ of Certiorari.

Petitioner respectfully requests that this Court issue a writ

of certiorari to the Ninth Circuit in order to prevent the EPA’s

continued circumvention of its own regulations governing visibility

protection in the United States.

' Pursuant to Rule 29.1 Su reme Court Rules, each Petitioner asserts that it has

no parent companies or subsidianes.

2

I. THE EPA FAILED TO PROMULGATE PHASE

Ii VISIBILITY RULES PRIOR TO USING

COMPLEX ANALYTICAL TECHNIQUES TO

ATTRIBUTE VISIBILITY _IMPAIRMENT TO

NAVAJO.

The statutory scheme governing pollution control measures

in national parks is set forth in § 169A of the Clean Air Act, 42

U.S.C. § 7491. It can only be implemented through regulations

promulgated by the EPA. The implementing regulations are

currently limited to visibility impairment attributable to a single

source or small group of sources. 45 Fed. Reg. 80084 (December

2, 1980) (Appendix, p. 75).

Under the regulations, a Federal Land Manager ("FLM")

must issue a Certification to a state when visibility impairment exists

in a national park within its boundaries. The FLM also attempts to

identify the probable source of the impairment. The state then has

the obligation to determine whether the impairment is "reasonably

attributable” to that source before it can impose pollution control

requirements.

Because of scientific and technical limitations existing when

the Phase I regulations were adopted in 1980, the means used to

determine the origin of impairment, i.e. “reasonable attribution.”

were restricted to methods such as visual observation and other

simple monitoring techniques. 45 Fed. Reg. 80084 at 80085

(Appendix, pp. 80-81). In tact, the EPA explained that the key

distinction between Phase I and later phases was “by what means a

source can be identified."" 45 Fed. Reg. 34762 at 34779 (May 22,

1980) (Appendix, p. 16).

In its opposing brief ("Opposition Brief"), the EPA

acknowledges that it relied on “several qualitative and quantitative

scientific analyses of extensive monitored data," which consisted of

"relatively complex methodologies,” to attribute visibility

impairment at the Grand Canyon during the winter months to the

Navajo Generating Station ("Navaje" or "NGS"). (Opposition

Brief, p. 8, p. 11). Those methodologies engendered substantial

* While this definitional explanation was contained in a May 1980 notice of

proposed rulemaking, it was carned forward in the December 1980 adoption of the

regulations. 45 Fed. Reg. 80084 at 80085 (Appendix, pp. 81,82).

3

scientific controversy, because they had never previously been used

to attribute secondary aerosols such as sulfates (SO,) to sources of

sulfur dioxide (SO,). (Petition for Writ of Certiorari, hereinafter

“Petition,” pp. 8-9).

The EPA asserts that 40 C.F.R. § 51.301(s) condones its

use of admittedly novel and complex modeling techniques because

the definition of “reasonably attributable" in those regulations

contemplates source attributions based on visual observation “or any

other technique the State deems appropriate." (Emphasis added).

However, the final rulemaking which promulgated those regulations

specifically recognized that Phase I attribution methods were

restricted to "visual observation or simple monitoring techniques"

due to technical and scientific limitations. 45 Fed. Reg. 80084 at

80085 (Appendix, pp. 81-82). The reference in 40 C.F.R.

§ 51.301(s) to "any other technique the state deems appropriate”

cannot be interpreted to include unproven modeling techniques. The

EPA’s interpretation destroys the distinction between Phase I and

later phases. The EPA has distorted a "definition" into a

determination that a Phase II rulemaking is no longer necessary.

Until it regulated Navajo, the EPA acknowledged that Phase

I] rulemaking would not occur until the reliability of complex

attribution techniques had been validated. In the preamble to the

Final Rule promulgating the state visibility regulations, EPA stated

“that the present mathematical models and monitoring techniques

show promise for being used in a regulatory manner. However,

these techniques must be further evaluated according to standard

Agency procedures before we can routinely require their use in a

regulatory program for sources, either new or existing, that may

impair visibility." 45 Fed. Reg. 80084 at 80085 (Appendix, pp.

81-82).

In any event, the EPA’s reliance on 40 C.F.R. § 51.301 is

misplaced. The visibility regulations at 40 C.F.R. § 52.26 apply to

this case. Contrary to the EPA’s claim, Petitioner raised the

applicability of 40 C.F.R. § 52.26 in its Reply Brief to the Ninth

Circuit at Footnote 6, page 9. 40 C.F.R. § 52.26(a) specifically

States that “[t]he provisions of this section are applicable to any

State implementation plan which has been disapproved with respect

to visibility monitoring.” Here, Arizona defaulted on its obligations

under the visibility regulations. See, 56 Fed. Reg. 50172 at 50173

(October 3, 1991) (Appendix, p. 7). 40 C.F.R. § 52.26 thus

4

became the operative regulation. Section 52.26(c)(3) states that the

following methods must be used by EPA when determining

reasonably attributable impairment: (i) photographic cameras, (11)

fine particulate matter samplers, (ill) teleradiometers, (iv)

nephelometers, (Vv) human observation, or (vi) other appropriate

technology. This enumeration of visually oriented techniques is

consistent with the EPA’s recognition that more sophisticated

methodology could not be used because of technical and scientific

limitations.

Inexplicably, the EPA argues that 40 C.F.R. § 52.26 does

not apply, despite the fact that 40 C.F.R. § 52.26 specifically

delineates EPA’s responsibilities when a state has detaulted in its

duties under 40 C.F.R. § 51.301. The EPA’s argument would

render 40 C.F.R. § 52.26 meaningless. Furthermore, EPA’s

argument is contrary to its practices. Until this case, the techniques

listed in 40 C.F.R. § 52.26 were the only techniques the EPA had

relied on in analyzing certifications of visibility impairment in Class

I areas. (See, Petition, pp. 6-7).

The EPA argues that the Court must accord "great

deference" to the EPA’s interpretation that its actions are governed

by 40 C.F.R. § 51.301(s) rather than by 40 C.F.R. § 52.26(c).°

The EPA’s interpretation flies in the tace of the plain language ot

40 C.F.R. § 52.26. An agency's interpretation of its own

regulations is not entitled to deference when the application and

interpretation of those regulations has been inconsistent Over time.

PPG Industries v. Harrison, 660 F.2d 628 (Sth Cir. 1981).

Additionally, an agency does not have carte blanche to interpret

regulations or standards to achieve a desired result. Carlyle

Compressor v. Occupational Safety, Etc., 683 F.2d 673 (2d Cir.

1982). Here, the EPA admits that the regulation of Navajo

“represents the only instance to date in which EPA has required

emission reductions at an existing source to remedy attributable

impairment." (Opposition Brief, p. 11). Coincidentally, it also

represents the only instance in which the EPA has used unproven

> The EPA also claims that it 1s appropriate and reasonable to interpret the

references to the mghts and duties of a Rate” to include the “Administrator” and

that it requested public comments on its interpretive view. The EPA fails to

disclose that this interpretation was specifically challenged by SRP and others

are the rulemaking proceedings. 6 Fed. Reg. 5173 at 5185 (February 8,

1991).

5

and complex attribution techniques in making an_ attribution

determination, rather than the visual observation and simple

monitoring methods prescribed by its Phase I regulations. Section

52.26 also indicates that Section 51.301(s) does not have the broad

reading argued for if applied to the EPA. Legitimate reasons exist

for according more discretion to the states than to the EPA in

making attribution determinations. Primary among these are a

state’s sovereignty Over its own affairs and its familiarity with local

conditions. No similar reason exists to grant the EPA more

discretion than that delegated to it under its own regulations. The

critical issue here is whether the EPA must abide by standards of its

own choosing and thus engage in Phase II rulemaking prior to

relying on the types of complex techniques it used in regulating

Navajo.

The EPA’s Final Rule requires the expenditure of some

$430 million to construct additional pollution control equipment. It

will add approximately $30 million a year to the annual costs of

Operating and maintaining Navajo. The EPA estimates that the

annualized cost of installing and operating the additional controls is

$89.5 million. That yields a present value cost of nearly $1 billion.

Petitioner will bear a significant portion of this cost. The EPA

based its Final Rule on the very methodologies that the National

Academy of Science ("NAS") said were unsuitable and unproven for

such purpose. Now that it has the result it wants, the EPA seeks to

ignore its own regulations and the logic of its phased approach to

visibility regulation. It has declined to engage in the rulemaking it

once acknowledged was essential before such methodologies were

used to make attribution decisions.

Il. PHASE I REGULATION IS LIMITED TO

VISIBILITY IMPAIRMENT ATTRIBUTABLE

TO A SOURCE BY VISUAL OBSERVATION

OR SIMPLE MONITORING TECHNIQUES.

The EPA claims that it is necessary only that impairment

"be physically traced to a source," and that this requirement was

met here, citing to the BART Guidelines, Docket A-89-02, II-A-1,

p. 6. The EPA citation is taken out of context. A more candid

review of EPA’s BART Guidelines reveals that the Phase I program

is intended to address sources of impairment that are visually

attributable to a power plant. The BART Guidelines recognize, for

example, that:

6

. @ major power plant may have a coherent

plume caused by primary particulate emissions

which must be analyzed under Phase J, and also

contribute to regional haze through emissions of

Sulfur dioxide [SO,] which will be addressed in

later phases. Under Phase I, the source would be

analyzed for BART with respect to TSP [total

suspended particulates] because it causes visibility

impairment in the form of a distinct plume.

Docket A-89-02, II-A-I, p. 4. (Emphasis added). EPA’s BART

Guidelines also explain that “the state is not required to impose SO,

controls in this situation,” i.e., where visibility impairment arises

from the conversion of SO, to SO, (sulfates), recognizing that

"sulfur dioxide does not directly affect visibility." /d. at p. 14

SO, is an invisible gas -- it is simply not capable of being detected

by simple monitoring techniques. Only the conversion of SO, to a

particulate or aerosol, SO, (sulfate), can affect visibility. This

conversion requires that the SO, travel for long distances over a

period of time and react to meteorological conditions, especially

humidity. Docket A-89-01A, IV-F-I, pp. 21-22; Docket A-89-02A,

II-D-29, pp. 6-16, 6-19; Docket A-89-02A, II-D-36, p. 35; Docket

A-89-02A, II-D-4, pp. 24 to 2-7. EPA’s BART Guidelines

specifically recognize that ". . . sulfate aerosols [are] most often

associated with regional haze, which will be dealt with under Phase

Il." Docket A-89-02A, II-A-1, p. 14.

The EPA asserts that its decision to regulate Navajo should

not be challenged because in addition to “relatively complex

methodologies,” it used photographic data in reaching its attribution

decision, (Opposition Brief, p. 11). The EPA’s assertion is false.

The Department of the Interior used the photographic data in

connection with its certification to the State of Arizona that visibility

impairment existed in the Grand Canyon. Docket A-89-02, II-D-8,

p. 2. The photographic data merely revealed that there was

visibility impairment in the Grand Canyon. The photographic data

did not indicate that such visibility impairment could be attributed

to any particular source. Rather, the Department of the Interior

identified Navajo as a potential source exclusively because of its

proximity to the Grand Canyon, not because the photographs

revealed any such connection.

-

Contrary to the EPA’s assertion, the rulemaking proceedings

document that the decision to attribute impairment to Navajo was

not based on any photographic evidence or visual observation of a

traceable plume. It was based on the use of unproven modeling

techniques:

The proposal to find impairment in the

Grand Canyon National Park attributable to NGS

was not based on any single analysis, but rather on

the collection of analyses performed by the NPS

[National Park Service] on the WHITEX data. Of

particular import to this proposal, however, was the

tracer mass balance regression analysis which

documented the presence of the NGS plume (and

sulfur emissions from NGS) in the Grand Canyon.

54 Fed. Reg. 36948 at 36949 (September 5, 1989).

Tracer mass balance regression analysis is a complex

technique. Its use in the Navajo attribution determination was

strongly criticized by the National Academy of Sciences. NAS

stated that the scientific literature “does not contain convincing

evidence" that multiple linear regression analyses can be used

successfully to apportion secondary species such as SO,. Docket A-

89-02A, II-D-36, p. 18. The Final Rule added:

The EPA noted both in the September 1989

and the February 1991 notices that the finding [that

several episodes of wintertime impairment in the

Grand Canyon were attributable to Navajo] was not

based on any single analytical technique in the NPS

report on WHITEX, but rather on the collection ot

techniques performed by the NPS using WHITEX

and other data.

56 Fed. Reg. 50172 at 50175 (Appendix, p. 12). This “collection

of techniques" consisted of the methodologies that the NAS said

were unsupported by the scientific literature for the purposes used.

The record is clear that the EPA relied entirely on these unproven

modeling and mathematical techniques in making its attribution

decision,

The EPA also claims that two cases cited by Petitioner are

irrelevant. The EPA’s attempt to minimize the import of the

8

positions it adopted in Vermont v. Thomas, 850 F.2d 99 (2d Cir.

1988), and Maine v. Thomas, 874 F.2d 883 (ist Cir. 1989), is

unjustifiable. Those cases establish that the EPA has urged other

courts to accept its position that its 1980 regulations intended to

limit the Phase I regulation of visibility impairment to plume blight.

The cases demonstrate that the position taken by EPA in this case

is contrary to its existing rules and past practices, and that the Ninth

Circuit’s decision creates a conflict among the circuits.

Il. CONCLUSION.

The EPA adopted a phased approach when it promulgated

regulations under the Clean Air Act to deal with visibility

impairment in Class I areas. The EPA acknowledged that the

critical difference between Phase I and Phase II was "by what means

a source can be identified." 45 Fed. Reg. 34762 at 34779

(Appendix, p. 16). Because the complex and unproven air quality

monitoring techniques necessary to evaluate impairment which could

not be visually attributed to a source had not yet been developed,

the EPA limited its 1980 Phase I regulations to impairment traceable

to a source by visual observation or other simple monitoring

techniques. The adoption of Phase II regulations, authorizing the

use of more complex techniques, was deferred.

However, in reaching its decision to impose emission

controls on Navajo, the EPA based its attribution decision on the

very analytical techniques that the EPA said required further study

"according to standard Agency procedures" before they could be

used for attribution determinations. The EPA’s process for

reguiating Navajo violated the EPA’s own regulations. Petitioner

9

therefore respectfully requests that its Petition for Writ of Certiorari

be granted

Respectfully submitted,

By/s/Marvin S. Cohen

Marvin S. Cohen, Esq.*

Leslie A. McCarthy, Esq.

SACKS, TIERNEY & KASEN

2929 N. Central, 14th Floor

Phoenix, Arizona 85012-2742

Telephone: (602) 279-4900

Counsel of Record *