Appendix — Hancock v. Train
Supreme Court brief1976
Ask Donna
What actually matters in this document.
Text
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974
No. 74-220
COMMONWEALTH OF KENTUCKY, EX REL
ED W. HANCOCK, ATTORNEY GENERAL ... PETITIONER
VS:
RUSSELL E. TRAIN, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY,
ET AL -_-- — . RESPONDENTS
APPENDIX
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
— —
— -—_
hr
PETITION FOR WRIT OF CERTIORARI
FILED SEPTEMBER 3, 1974
CERTIORARI GRANTED MARCH 17, 1975
tant ns th ALLL A TO
a ee 0 aa natal A
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974
No. 74-220
COMMONWEALTH OF KENTUCKY, EX REL
W. HANCOCK, ATTORNEY GENERAL __ PETITIONER
VS:
RUSSELL E. TRAIN, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY,
SEE 5-000 sesaiidivbiquame -..-....... .... RESPONDENTS
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
INDEX
Table of Contents Page
Chronological List of Relevant Docket Entries ...... iv
Chronological List of Other Parts of Record ........ vi
COMPLAINT, UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF KENTUCKY... —
DE heesd dunehGssGhekhedabdbesebeeses 35
PEE Saveuncdeenedeebnadudedcehatuneends 55
MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE
BY ATTORNEY GENERAL, COMMONWEALTH OF
ORDER PERMITTING COMMONWEALTH OF VIR-
GINIA TO APPEAR AS AMICUS CURIAE....____—___.. . &
MOTION TO DISMISS OR IN THE ALTERNATIVE FOR
SUMMARY JUDGMENT FILED BY DEFENDANTS
TENNESSEE VALLEY AUTHORITY ETAL .....--__.. _€
ii
INDEX (Continued)
Table of Contents
Page
i hi csccne tai acie saben cede oe ee wal 65
a ee ee ee ee ee ae 69
DD. <ncgiucénin ddhenneedesskeunneeneas 72
ra area aan nae ne RE ea 73
I rt On ic ane ne ee ee 76
rE. a nud dduakee ence caabiwnwesceetedse 77
MOTION TO DISMISS OR IN THE ALTERNATIVE FOR
SUMMARY JUDGMENT FILED BY ALL DEFENDANTS
REPRESENTED BY UNITED STATES DEPART-
MENT OF JUSTICE (ALL DEFENDANTS WITH EX-
CEPTION OF TENNESSEE VALLEY AUTHORITY,
WAGNER, SEEBER, McPHERSON AND CAVANISS) 86
Affidavit of Robert J. Hart .................. 89
Affidavit of jerome F. Wing ..............4-. O4
Supplemental Affidavit of Jerome F. Wing ...... 99
Affidavit of FE. D. H. Berry ............eee0- 102
Affidavit of Earnest A. Vuley, Jr. .............. 107
Affidavit of Robert Anderson ................ 110
MOTION FOR SUMMARY JUDGMENT AGAINST DE-
FENDANTS TENNESSEE VALLEY AUTHORITY,
WAGNER, SEEBER, McPHERSON, AND CAVANISS
FILED BY ATTORNEY GENERAL, COMMONWEALTil
OF KENTUCKY “i _.. 115
Exhibit 1, Affidavit of Harold G. Peters ........ 117
Affidavit of John T. Smithers ..............4.-. 120
ORDER SETTING ALL MOTIONS FOR ORAL ARGU-
MENT . ee A
MOTION TO FILE SUPPLEMENTAL BRIEF FILED BY
ATTORNEY GENERAL, COMMONWEALTH OF KEN-
TUCKY ee
iii
INDEX (Continued)
Table of Contents
Page
ORDER SUSTAINING ALL DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT
MEMORANDUM AND ORDER SUSTAINING ALL DE-
FENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
JUDGMENT SUSTAINING ALL DEFENDANTS’ MO-
TIONS FOR SUMMARY JUDGMENT, OVERRULING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND DISMISSING ACTION
NOTICE OF APPEAL FROM JULY lI, 1973, ORDER
AND AUGUST 13, JUDGMENT OF UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF
KENTUCKY FILED BY ATTORNEY GENERAL, COM-
MONWEALTH OF KENTUCKY, IN UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
MOTION TO DEFER FILING OF APPENDIX FILED BY
ATTORNEY GENERAL, COMMONWEALTH OF KEN-
TUCKY
MOTION TO FILE AMICUS BRIEF OUT OF TIME
FILED BY ATTORNEY GENERAL, STATE OF TEXAS
NOTICE OF COURT SETTING ORAL ARGUMENTS
OPINION AFFIRMING JUDGMENT OF UNITED
STATES DISTRICT COURT FOR THE WESTERN DIS-
TRICT OF KENTUCKY
127
129
150
151
153
155
171
170
iv
INDEX (Continued)
Table of Contents
Page
JUDGMENT AFFIRMING JUDGMENT OF UNITED
STATES DISTRICT COURT OF THE WESTERN DIS-
TRICT OF KENTUCKY ececocesess sunenee
MANDATE, UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT cohen
ORDER, UNITED STATES SUPREME COURT, GRANT-
ING PETITION FOR WRIT OF CERTIORARI FILED BY
ATTORNEY GENERAL, COMMONWEALTH OF KEN-
TUCKY ON SEPTEMBER 3, 1974 a 174
DOCKET ENTRIES
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
Date Page
11-16-72 Complaint filed by Commonwealth of Ken-
tucky, ex rel Ed W. Hancock, Attorney Gen-
eral, in the United States District Court For
the Western District of Kentucky, Civil Ac-
tion No. 7480-G, omitting Exhibit A (The
Clean Air Act, December, 1970, 42 U.S.C.
1857 et seq.), Omitting Exhibit B (Admini-
strative Regulations, Kentucky Air Pollution
Control Commission), Omitting Exhibit C
(Federal Register, Volume 37, No. 105, Title
40, Chapter I, Subchapter 52), and including
Exhibit TD (Request letters to defendants
Piette meen
Vv
DOCKET ENTRIES (Continued)
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
Date Page
and refusals), including Exhibit E (Direc-
tive from Regional Administrator, Environ-
mental Protection Agency) ............... 1
1-18-73 Motion For Leave to Appear as Amicus
Curiae filed by Andrew P. Miller, Attorney
General, Commonwealth of Virginia ...... 60
2- 5-73 Order entered permitting Commonwealth of
Virginia to appear as amicus curiae ........ 62
3- 5-73 Motion to Dismiss or in the Alternative For
Summary Judgment filed by defendants
Tennessee Valley Authority, Wagner, See-
ber, McPherson, and Cavaniss, including
Exhibit 1 (Affidavit of Lynn Seeber, Ex-
hibit A, 8-14-72 letter, Exhibit B, 10-13-72
letter, Exhibit C, 11-10-72 letter, Exhibit D,
11-29-72 letter, Exhibit E, 1-9-73 letter,
Exhibit F, 10-17-72 letter, Exhibit G, 1-26-
EEE EEE 63
3-16-73 Motion to Dismiss or in the Al‘ernative For
Summary Judgment filed by all defendants
represented by United States Department of
Justice (all defendants with exception of
Tennessee Valley Authority, Wagner, See-
ber, McPherson and Cavaniss), including
Date
vi
DOCKET ENTRIES (Continued)
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
Page
Exhibits 1-6, Affidavit of Robert J. Hart,
Affidavit of Jerome F. Wing, Supplemental
Affidavit of Jerome F. Wing, Affidavit of
k. 0. H. Berry, Affidavit of Earnest A.
Vuley, Jr.. and Affidavit of Robert Ander-
| MPEP RELEEELEEELELECELELLETELELLLeeTe
3-27-73 Motion for Summary Judgment against De-
fendants Tennessee Valley Authority, Wag-
ner, Seehber, McPherson, and Cavaniss filed
by plaintiff Ed W. Hancock, Attorney Gen-
eral, Commonwealth of Kentucky, including
Exhibit 1, Affidavit of Harold G. Peters,
and Affidavit of John T. Smithers, including
8-14-72 TVA letter attachment to Smithers
Affidavi: and onutting completed, unsigned
permit application of T\ A to operate air
contaminant sources attachment to Smithers
REE os KKK eee eee
6-13-73 (order entered setting all Motions for Oral
Ae Gh FSO ick cheescesacusoouse
6-28-73 Motion to File Supplemental Brief filed by
Commonwealth of Kentucky ex rel Ed W.
Hancock, Attorney General ..............
7-11-75 Order entered in United States District
124
Vii
DOCKET ENTRIES (Continued)
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
Page
Court For the Western District of Kentucky
sustaining all defendants’ Motions for Sum-
MP PE ducdancuvdccacdsbbcanasss
8-13-73 Memorandum and Order entered in United
States District Court For the Western Dis-
trict of Kentucky sustaining all defendants’
Motions for Summary Judgment and deny-
ing plaintiff's Motion for Summary Judg-
ES COCSSCOKGOKECOERESHES ESOS SDESCCCECE
8-13-73 Order entered in United States District
Court For the Western District of Ken-
tucky overruling plaintiff's Motion For Sum-
mary Judgment, sustaining all defendant’s
Motions for Summary Judgrsent and dis-
ET ED Sc du ddencceteceseecdiccacs
9. 7-73 Notice of Appeal to the United States Court
of Appeals For the Sixth Circuit from July
11, 1973 Order and August 13, 1973, Judg-
ment of the United States District Court For
the Western District of Kentucky filed by
Commonwealth of Kentucky ex re! Ed W.
Hancock, Attorney General, No. 73-2099 ...
12- 7-73 Motion to Defer Filing of Appendix to
December 12, 1973, filed by plaintiff Com-
151
viii
DOCKET ENTRIES (Continued)
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
Date Page
monwealth of Kentucky ex rel Ed W. Han-
cock, Attorney General. (Extension granted
OD ED EFTS) ec ccccccccccccccccccecccces 153
3- 5-74 Motion To File \micus Curiae Brief Out of
Time filed by John L. Hill, Atttorney Gen-
eral, State of Texas. (Motion granted 3-18-
Dl «Xuncedacebdcsbubbebebeberaseawens 155
3-11-74 Notice of United States Court of Appeals
For the Sixth Circuit setting oral arguments
Rr FU GS, FIGS occ ccccstsscdcoccescoss 171
6- 5-74 Opinion entered, United States Court of
Appeals For the Sixth Circuit, affirming
August 13, 1974, Judgment of the United
States District Court For the Western Dis-
lee G0 TID occu cccccctscensssesess 172
7-11-74 Issued as Mandate, July 11, 1974, United
States Court of Appeals For the Sixth Cir-
cuit [See Judgment immediately above] ....173
3-17-75 Order entered United States Supreme Court,
No. 74-220, granting petitioner's (Common-
wealth of Kentucky ex rel Fd W. Hancock,
Attorney General) Petition For Writ of —
Certiorari filed on September 3, 1974 ....... 174
a ea sh ete < WAR TORE
CHRONOLOGICAL LIST OF OTHER PARTS OF
RECORD NOT PRINTED IN APPENDIX
Date
1- 8-73 Motion For Extension of Time to Answer or
Otherwise Plead filed by defendants represented
by United States Department of Justice (all de-
fendants with exception of Tennessee Valley Au-
thority, Wagner, Seeber, McPherson and Cavan-
iss ).
1-10-73 Order entered in United States District Court
For the Western District of Kentucky granting
defendants’ represented by United States Depart-
ment of Justice Motion for Extension of Time
to Answer or Otherwise Plead to March 5, 1973.
1-10-73 Mution For Extension of Time to Answer or
Otherwise Plead filed by defendants Tennessee
Valley Authority, Wagner, Seeber, McPherson,
and Cavaniss.
1-12-73 Order entered in United States District Court
For the Western District of Kentucky granting
defendants’ TVA, et al, Motion for Extension of
Time to Answer or Otherwise Plead to March
5, 1973.
1-31-73 Response to Motion of Commonwealth of Vir-
ginia to Appear as Amicus Curiae filed by plain-
tiff Commonwealth of Kentucky ex rel Fl W.
Hancock, Attorney General.
x
CHRONOLOGICAL LIST OF OTHER PARTS OF
RECORD NOT PRINTED IN APPENDIX (Continued)
Date
3- 6-73 Motion for Extension of Time to Answer or
Otherwise Plead filed by defendants represented
by United States Department of Justice.
3-7-73 Order entered in United States District Court
For the Western District of Kentucky granting
_, defendants’ represented by United States De-
, partment of Justice Motion For Extension of
_ Time io Answer or Otherwise Plead to March
.., 12, 1973.
3- 3-73 Brief in Support of Motion to Dismiss or for
‘Summary Judgment filed by defendants Tennes-
'’ see Valley Authority, Wagner, Seeber, McPher-
‘son and Cavaniss.
3-13-73 Motion For Extension of Time to Answer or
Otherwise Plead filed by defendants represented
by United States Department of Justice.
3-14-73 Order entered in United States District Court
For the Western District of Kentucky granting
defendants’ represented by United States De-
partment of Justice Motion For Extension of
Time to Answer or otherwise Plead to March
16, 1973.
)
|
:
|
;
;
:
/
|
xi
CHRONOLOGICAL LIST OF OTHER PARTS OF
RECORD NOT PRINTED IN APPENDIX (Continued)
Date
3-16-73 Memvurandum in Support of Motion to Dismiss
filed by defendants represented by United States
Department of Justice.
3-26-73 Motion For Extension of Time to File Brief In
Opposition to TV A’s Motion to Dismiss or For
Summary Judgment filed by plaintiff Common-
wealth of Kentucky ex rel Fd W. Hancock, At
torney General.
3-27-73 Order entered in United States District Cour:
For the Western District of Kentucky granting
plaintiff's Motion For Extension of Time to Filc
Brief in Opposition to TVA’s Motion to Di<mis-
or For Summary Judgment to March 28, 1973.
3-27-73 Brief in Support of Plaintiff’s Motion For Sum
mary Judgment against defendants Tennesse
Valley Authority, Wagner, Seeber, McPhersor.
and Cavaniss and Brief in Opposition to de-
fendants Tennessee Valley Authority, Wz gner
Seeber, McPherson and Cavaniss Motion to Dis
miss or For Summary Judgment filed by piain-
tiff Commonwealth ot Kentucky ex rel Ed W.
Hancock, Attorney General.
4- 2-73 Brief in Opposition to Defendants’ (Ruckels-
haus, Environmental Protection Agency, Abrams.
Froehlke, Department of the Army, Desbory.
xii
CHRONOLOGICAL LIST OF OTHER PARTS OF
RECORD NOT PRINTED IN APPENDIX (Continued)
Date
Cushman, Vuley, Schlesinger, Atomic Energy
Commission, Hollingsworth, Stiller, Union Car-
bide Corporation, Paducah Gaseous Diffusion
Plant) Motion to Dismiss filed by plaintiff Com-
monwealth of Kentucky, ex rel Ed W. Hancock,
Attorney General.
4-16-73 Response to plaintiff's Motion for Summary
Judgment filed by defendants Tennessee Valley
Authority, Wagner, Seeber, McPherson and
Cavaniss.
5- 2-73 Memorandum of Amicus Curiae Commonwealth
of Virginia in Support of Plaintiff filed by At-
torney Genera), Commonwealth of Virginia.
6-15-73 Supplement to Brief filed by defendants Tennes-
see Valley Authority, Wagner, Seeber, McPher-
son and Cavaniss.
6-28-73 Supplemental Brief filed by plaintiff Common-
wealth of Kentucky ex rel Ed W. Hancock, At-
torney General.
7- 9-73 Oral Arguments, United States District Court
For The Western District of Kentucky.
7-26-73 Memorandum Opinion tendered by defendants
xiii
CHRONOLOGICAL LIST OF OTHER PARTS OF
RECORD NOT PRINTED IN APPENDIX (Continued)
Date
Tennessee Valley Authority, Wagner, Seeber,
McPherson and Cavaniss.
7-30-73 Memorandum tendered by defendants represented
by United States Department of Justice.
9- 7-73 Motion to Dispense with Appeal Bond filed by
Commonweaith of Kentucky ex rel Ed W. Han-
cock, Attorney General.
9-24-73 Order entered United States Court of Appeals
for the Sixth Circuit exempting plaintiff-appel-
lant Commonwealth of Kentucky from filing a
bond for costs on appeal.
10-12-73 Record on Appeal Transmitted from United
States District Court to United States Court of
Appeals For the Sixth Circuit.
10-31-73 Record on Appeal! docketed by United States
Court of Appeals For the Sixth Circuit as No.
73-2099.
11- 2-73 Entry of Appearance by Commonwealth of Ken-
tucky ex rel Ed W. Hancock, Attorney General.
11- 2-73 Appendix Designation by plaintiff-appellant
Commonwealth of Kentucky, ex rel Ed W. Han-
cock, Attorney General.
xiv
CHRONOLOGICAL LIST OF OTHER PARTS OF
RECORD NOT PRINTED IN APPENDIX (Continued)
Date
12- 4-73 Brief of California Attorney General as Amicus
Curiae in Support of Appellant’s Interpretation
of the Clean Air Act filed by Attorney General,
State of California.
12- 7-73 Order of United States Court of Appeals For the
Sixth Circuit Deferring filing of Appendix to
December 17, 1973.
12-11-73 Brief of Commonwealth of Virginia as Amicus
Curiae in Support of Plaintiff-appellant filed by
Attorney General, Commonwealth of Virginia.
12-14-73 Brief filed by appellant Commonwealth of Ken-
tucky ex rel Ff'd \V. Tlancock, Attorney General.
12-14-73 Appendix filed by appellant Commonwealth of
Kentucky ex rel Ed W. Hancock, Attorney Gen-
eral.
1- 8-74 Typewritten Brief filed by appellees represented
hy United States Department of Justice.
1-14-74 TItrief filed by appellees Tennessee Valley Au-
thority, Wagner, Seeber, McPherson and Cavan-
iss,
|
]
|
|
XV
CHRONOLOGICAL LIST OF OTHER PARTS OF
RECORD NOT PRINTED IN APPENDIX (Continued)
Date
1-22-74 Brief filed by appellees represented by United
States Department of Justice.
1-22-74 Reply Brief filed by appellant C:-:monwealth of
Kentucky ex rel Ed W. Hancock, Attorney Gen-
eral.
3- 5-74 Brief of Amicus Curiae State of Texas in Sup-
port of Appellants filed by Attorney General,
State of Texas.
3-18-74 Order granting State of Texas Motion to File
Brief Out of Time.
4- 8-74 Oral Arguments, United States Court of Ap-
peals For the Sixth Circuit.
9- 3-75 Petition For Writ of Certiorari filed by petitioner
Commonwealth of Kentucky ex rel Ed W. Han-
cock, Attorney General, in United States Su-
preme Court, No. 74-220, for Review of Judg-
ment of United States Court of Appeals For the
Sixth Circuit rendered in proceedings on June
5, 1974.
9- 3-74 Petition For Writ of Certiorari docketed as No.
74-220.
xvi
CHRONOLOGICAL LIST OF OTHER PARTS OF
RECORD NOT PRINTED IN APPENDIX (Continued)
Date
9- 3-75 Entry of appearance by petitioner Commonwealth
of Kentucky ex rel Ed W. Hancock, Atttorney
General.
11- 1-74 Supplemental Memorandum filed by petitioner
Commonwealth of Kentucky ex rel Ed W. Han-
cock, Attorney General.
1-10-75 Memorandum for Respondents filed by respond-
ents by Solicitor General. U. S. Department of
Justice.
3-24-75 Request for transmittal of record from United
States Court of Appeals For the Sixth Circuit.
3-27-75 Designation of Record to be included in Appendix
and Statement of Issues filed by petitioner Com-
monwealth of Kentucky ex rel Ed W. Hancock,
Attorney General.
Filed — 11-16-72
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT
OF KENTUCKY
LOUISVILLE, KENTUCKY
COMMONWEALTH OF KENTUCKY,
EX REL ED W. HANCOCK,
ATTORNEY GENERAL ............ PLAINTIFF,
VS:- Civil Action
No. 7480-G
COMPLAINT
WILLIAM D. RUCKELHAUS, Administrator,
Environmental Protection. Agency,
Waterside Mall, Fourth and M Streets,
Washington, D.C., 20460;
JACK E. RAVAN, ADMINISTRATOR,
REGION IV,
Environmental Protection Agency,
Suite 300, 1421 Peachtree Street, N.E.,
Atlanta, Georgia, 30309;
ENVIRONMENTAL PROTECTION AGENCY,
United States of America,
Waterside Mall, Fourth and M Streets,
Washington, D.C., 20460,
AND Also Serve for the above defendant agency:
2
Richard G. Kleindienst, Attorney General,
United States of America,
Department of Justice,
Constitution Square,
Ninth and Tenth Streets,
Washington, D.C., 20530,
and
United States Attorney,
Western District of Kentucky,
United States Courthouse,
Louisville, Kentucky, 40202;
GENERAL CREIGHTON ABRAMS, CHIEF
OF STAFF,
United States Army, United States of America,
The Pentagon,
Washington, D.C., 20301,
ROGERT F. FROEHLKE, SECRETARY,
Department of the Army,
United States of America,
The Pentagon,
Washington, D.C., 20301;
MAJOR GENERAL W. R. DESBORY,
COMMANDING GENERAL,
United States Army Armor Center and Fort Knox,
Fort Knox, Kentucky, 40201;
MAJOR GENERAL JOHN CUSHMAN,
COMMANDING GENERAL,
101st. Airborne Division (Airmobile) and Fort
Campbell, Fort Campbell, Kentucky, 42223;
CAAA RO A I = -_
.
-
3
COLONEL ERNEST A. VULVEY, JR.
COMMANDING OFFICER,
Lexington-Bluegrass Army Depot,
Department of the Army,
Lexington, Kentucky, 40507 ;
DEPARTMENT OF THE ARMY,
United States of America,
The Pentagon,
Washington, D.C., 20301,
AND Also Serve for the above defendant agency:
Richard G. Kleindienst, Attorney General,
United States of America,
Department of Justice,
Constitution Square,
Ninth and Tenth Streets,
Washington, D.C., 20530,
and
George J. Long,
United States Attorney,
Western District of Kentucky,
United States Courthouse,
Louisville, Kentucky, 40202;
AUBREY J. WAGNER, CHAIRMAN,
BOARD OF DIRECTORS,
Tennessee Valley Authority,
Woodward Building,
15th and H Streets, N.W.,
Washington, D. C., 20444;
LYNN SEEBER, GENERAL MANAGER
Tennessee Valley Authority,
Woodward Building,
15th and H Streets, N.W.,
Washington, D.C., 20444;
J. L. McCPHERSON, SUPERINTENDENT,
SHAWNEE POWER PLANT
Tennessee Valley Authority,
Paducah, Kentucky, 42001 ;
T. E. CAVANISS, SUPERINTENDENT,
PARADISE POWER PLANT,
Tennessee Valley Authority,
Drakesboro, Kentucky, 42337;
TENNESSEE VALLEY AUTHORITY,
Woodward Building,
15th and H Streets, N.W.,
Washington, D.C., 20444,
and
Mussel Shoals, Alabama, 35660,
AND Also Serve for the above defendant agency:
Richard G. Kleindienst, Attorney General,
United States of America,
Department of Justice,
Constitution Square,
Ninth and Tenth Streets,
Washington, D.C., 20530,
and
George J. Long,
United States Attorney,
Western District of Kentucky,
('nited States Courthouse,
| ouisville, Kentucky, 40202;
ee ee eee eee ee ee
¢
;
5
JAMES R. SCHLESINGER, CHAIRMAN,
BOARD OF DIRECTORS,
Atomic Energy Commission,
United States of America,
Washingion, D.C., 20545;
ROBERT E. HOLLINGSWORTH, °
GENERAL MANAGER,
Atomic Energy Con:mission,
United States of America,
Washinzton, D.C., 20545;
B. W. STILLER, MANAGER,
PADUCAH GASEOUS DIFFUSION PLANT,
Atomic nergy Commission,
United States of America,
Paducah, Kentucky, 42001 ;
UNION CARBIDE CORPORATION,
A New York Corporation,
Serve: C. T. Cororation System,
Kentucky Home Life Building,
Louisville, Kentucky, 40202;
ATOMIC ENERGY COMMISSION,
United States of America,
Washington, D.C., 20545,
and
Paducah Oak Ridge Operations,
Paducah, Kentucky, 42001,
AND Also Serve for the above defendant agency;
6
Richard G: Kieindienst, Attorney General,
United States of America,
Department of Justice,
Constitution Square,
Ninth and Tenth Streets,
Washington, D.C., 20530,
an<l
George J. Long,
United States Attorney,
Western District of Kentucky,
United States Courthouse,
Louisville, Kentucky, 40202, ........ DEFENDANTS.
JURISDICTION
1. This action arises under the Fifth, Ninth,
and Fourteenth Amendments to the Constitution of
the United States of America; U.S.C., Title 28, Section
1331; U.S.C., Title 42, Section 1857, et seq.; U.S.C,
Title 5, Section 702; U.S.C., Title 28, Section 2201, et
seq., and U.S.C. Title 28, Section 1361. The amount in
controversy exceeds, exclusive of interest and costs, the
sum of Ten Thousand Dollars.
2. Plaintiff Commonwealth of Kentucxy brings
this action by and through Ed W. Hancock, Attorney
General for the Commonwealth of Kentucky, pur-
suant to Kentucky Revised Statutes 224.310, et seq.,
Kentucky Revised Statutes, Chapter 15, and Section
91 of the Constitution of the Commonwealth of Ken-
tucky.
3. The United States of America has authorized
:
:
;
-
j
3
|
?
FI
3
7
suit against the defendant agencies, divisions, and officers
in their official capacities under U.S.C., Title 16, Section
83lc and under the Clean Air Act of 1970, U.S.C., Title
42, Section 1857, et seq.
NATURE OF ACTIONS
4. This action arises out of the refusal of the
defendants, Lynn Seeber, General Manager of the
Tennessee Valley Authority; Aubrey J. Wagner,
Chairman of the Board of Directors of the Tennessee
Valley Authority; J. L. McPherson, Superintendent
of the Shawnee Power Plant of the Tennessee Valley -
Authority; T. E. Cavaniss, Superintendent of the Para-
dise Power Plant of the Tennessee Valley Authority; the
Tennessee Valley Authority; Major General W. R. Des-
bory, Commanding General of the United States Army
Armor Center and Fort Knox; Colonel Ernest A. Vuley,
Jr., Commanding Officer of the Lexington-Bluegrass
Army Depot Major General John Cushman, Commanding
General of the 101st. Airborne Division (Airmobile)
and Fort Campbell; General Creighton Abrams, Chief
of Staff of the United States Army; Robert F. Froehlke,
Secretary of the United States Army; Department of
the Army; James R. Schlesinger, Chairman of the
Board of Directors of the United States Atomic En-
ergy Commission; Robert E. Hollingsworth, General
Manager of the United States Atomic Energy Com+
mission; B. W. Stiller, Manager of the Paducah Gase-
ous Siffusion Plant of the United States Atomic En-
ergy Commission; the United States Atomic Energy
Commission; and Union Carbide Corporation, a New
8
York Corporation, operating the Paducah Gaseous
Diffusion Plant of the United States Atomic Energy
Commission, to apply for and obtain a permit from
the Kentucky Air Pollution Control Commission as
required by the Implementation Plan for the Attain-
ment and Maintenance of the National and State Pri-
mary and Secondary Ambient Air Quality Standards
for the Commonwealth of Kentucky, (hereinafter re-
ferred to as the “Kentucky Plan’).
5. Section 5 of Kentucky Air Pollution Control
Commission Administration Regulation AP-l, was
promulgated by the Kentucky Air Pollution Control
Commission under the provisions of Kentucky Re-
vised Statutes 224.360 and Kentucky Revised Statutes
224,430, as required by the Commonwealth of Ken-
tucky, (the rules and regulations of the Kentucky Air
Pollution Control Commission are contained in Chap-
ter 7 of “Kentucky’s Plan”), by U.S.C., Title 42, Sec-
tion 1857c-5, (hereinafter referred to as Section 110
of the Clean Air Act of 1970), Section 1857f, (herein-
after referred to as Section 118 of the Clean Air Act
of 1970), and Section 1857c-8, (hereinafter referred to
as Section 113 of the Clean Air Act of 1970). Collec-
tively, Section 110, 118, and 113 of the Clean Air Act
of 1970 make the “Kentucky Plan’ with the rules and
regulations of Chapter 7 in said Plan federal law for
the attainment and maintenance of national ambient
air quality standards for all federal agencies and fa-
cilities located within the Commonwealth of Kentucky.
6. This action arises out of the failure and re-
fusal of defendants, William D. Ruckelshaus, Admin-
ed
ee) ee ee
i
|
4
‘
i
:
;
f
2
:
9
istrator of the Environmenta] Protection Agency;
Jack E. Ravan, Administrator of Region IV of the
Environmental Protection Agency, and the United
States Environmental Protection Agency to institute
appropriate actions under Section 113 of the Clean Air
Act of 1970 against the defendants as set forth in para-
graph numbered 4, herein, for compliance with the
permit requirements of the “Kentucky Plan.” Section
113 of the Clean Air Act of 1970 requires, that when
any person is in violation of any applicable implemen-
tation plan and upon the failure or inability of the Com-
monwealth of Kentucky to effectively enforce its rules
and regulations of its Plan adopted pursuant to the Clean
Air Act of 1970 the Administrator of the United States
Environmental Protection Agency is to commence appro-
priate action toward obtaining compliance with the Plan.
PARTIES
7. Plaintiff, Commonwealth of Kentuky, is a
sovereign state of the United States of America and
brings this action on its own behalf as parens patriae.
The plaintiff, Commonwealth of Kentucky brings this
action as representative of a class as defined by Rule
23 of the Federal Rules of Civil Procedure. The mem-
bers of the class, who are so numerous as to make it
impracticable to bring them al] before this Court, con-
sist of the Commonwealth of Kentucky and all citizens,
counties, political subdivisions, and agencies of the Com-
monwealth of Kentucky. All questions of law and of
fact are common to the class; the claim of the plaintiff
is typical of the class; and the plaintiff will fairly insure
adequate representation of the class. Ed W. Hancock is
10
presently the duly elected Attorney General for the Com-
monwealth of Kentucky and as such Attorney General
is the chief law officer of the Commonwealth of Ken-
tucky, The authority of the Attorney General to com-
mence this action in the name of the Commonwealth of
Kentucky is based upon Section 91 of the Constitution of
the Commonwealth of Kentucky, Chapter 15 of Kentucky
Revised Statutes, and the common law, which gives him
the authority to exercise al] common law duties pertain-
ing to the office of the Attorney General.
&. Defendant Tennessee Valley Authority, here-
inafter referred to as “TVA”, was created by the United
States Congress by enactment of the Tennessee Valley
Authority Act of 1933, U.S.C., Title 16, Section 831, et
seq. Defendant Tennessee Valley Authority has its prin-
cipal place of business in Mussel Shoals, Alabama.
9. Defendant Aubrey J. Wagner is Chairman
of the Board of Directors of Tennessee Valley Authority
and is vested with the authority over the operations of
Tennessee Valley Authority.
10. Defendant Lynn Seeber is the Manager for
Tennessee Vailey Authority and is vested with the
authority over the operations of Tennessee Valley Au-
thority.
11. Defendant J. L. McPherson is the Superin-
tendent of the Shawnee Power Plant of Tennessee
Valley Authority, which facility is located in Mce-
Cracken County, Kentucky. Defendant J. L. McPher-
son is vested with the overall] responsibility for the day-
to-day operations of the Shawnee Power Plant.
- te he en aallealll
a a eee
11
12. Defendant T. E. Cavaniss is the Superin-
tendent of the Paradise Power Plant of Tennessee Valley
Authority, which facility is located in Muhlenberg Coun-
ty, Kentucky. Defendant T. E. Cavaniss is vested with
the overall responsibility for the day-to-day operations of
the Paradise Power Plant.
13. Defendant Major General W. R. Desbory is
the Commanding General of the United States Army
Armor Center and Fort Knox. Defendant W. R. Des-
bory is vested with the authority over the operations of
this United States Army military reservation which lies
within Hardin, Meade, Jefferson, Nelson, and Larue
Counties, Kentucky.
14. Defendant Colonel Ernest A. Vuley, Jr., is
the Commanding Officer of the Lexington-Bluegrass
Army Depot. Defendant Ernest A. Vuley, Jr., is vested
with the authority over the operations of this United
States Army military reservation which lies within
Fayette and Madison Counties, Kentucky.
15. Defendant Major General John Cushman is
the Commanding General of the 101st. Airborne Divi-
sion (Airmobile) and Fort Campbell. Defendant John
Cushman is vested with the authority over the opera-
tions of this United States Army military reservation
which lies within Christian County, Kentucky.
16. Defendant General Creighton Abrams who
is the Chief of Staff of the United States Army and
defendant Robert F. Froehlke who is the Secretary of
the United States Army are vested with the athuority
over the operations of the United States Army and
12
more specifically those operations enumerated in
paragraphs numbered 13, 14, and 15, herein.
17. Defendant Department of the Army is a
duly constituted executive agency of the United States
Government and has the direct administrative and op-
erational control over those defendants and military
reservations enumerated in paragraphs numbered 13, 14,
and 15, herein.
18. Defendant United States Atomic Energy
Commission, hereinafter referred to as “AEC”, was
created by the United States Congress by enactment of
the Atomic Energy Act of 1946, Title 42, Section 2031,
et seq. Defendant Atomic Energy Commission has its
principal place of business in the Commonwealth of Ken-
tucky at the Paducah, Oak Ridge Operations, in Paducah,
Kentucky.
19. Defendant James R. Schlesinger is chairman
of the Board of Directors of Atomic Energy Commis-
sion and as the chief commissioner is vested with the
authority for the operations of Atomic Energy Com-
mission.
20. Defendant Robert E. Hollingsworth is Gen-
eral Manager of Atomic Energy Commission and as the
administrative officer and executive officer is vested with
operational authority for the operations of the various
facilities of Atomic Energy Commission.
21. Defendant Union Carbide Corporation, a
New York Corporation, registered with the Secretary
of State for the Commonwealth of Kentucky to do
business and is doing business in the Commonwealth
Ye ee kOe Che ee eines
13
of Kentucky, along with Atomic Energy Commission,
referred to in paragraph numbered 18, herein, operates
the Paducah Gas Diffusion Plant of the United States
Atomic Energy Commission.
22. Defendant B. W. Stiller is the Manager of
the Paducah Gaseous Diffusion Plant of the Atomic
Energy Commission which is located in McCracken
County, Kentucky. Defendant B. W. Stiller is vested
with the over.!! responsibility of the day-to-day opera-
tions of the Paducah Gaseous Diffusion Plant of the
Atomic Energy Commission.
23. Defendant Environmental Protection Agency,
hereinafter referred to as “EPA”, is a duly constituted
agency of the United States of America, and was creat-
ed pursuant to U.S.C., Title 42, Section 2321.
24. Defendant William D. Ruckelshaus is the
Administrator of Environmental Protection Agency
and is vested with the authority over the operations
of Environmental Protection Agency.
25. Defendant Jack E. Ravan is the Administra-
tor of Region IV of Environmental Protection Agency
which includes the Commonwealth of Kentucky, and
is vested with the authority over the operations of En-
vironmental Protection Agency in Region IV.
26. In the event that any of the defendants named
in paragraphs numbered 8, 9, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, and 25, herein changes his
official capacity so that he is no longer in the office or
position described therein, plaintiff will request leave
of this Court to amend this Complaint to show the
14
correct name of that person who succeeds to that office
or position.
27. The authority of these defendants herein to
carry out their civil functions is limited by laws, rules,
and regulations; accordingly, the defendants herein
must comply with these laws, rules and regulations
with respect to the facilities and equipment in ques-
tion. The individual defendants herein have been and
continue to be responsible for their illegal and unauthor-
ized actions herein alleged. Therefore, relief is sought
against the defendants herein to enjoin said defendants
from a continuation of their illegal and unauthorized
actions in their official capacities and anyone acting in
concert therewith:
GENERAL ALLEGATIONS
28. The following equipment emitting air con-
taminants is known to the plaintiff to be located and
currently operating at:
(a) The Shawnee Power Plant of Tennessee
Valley Authority :-
(1) Ten 1,347 Million BTU per hour coal-fired
boilers.
(b) The Paradise Power Plant of Tennessee
Valley Authority :-
(1) Two 6,018 Million BTU per hour coal-fired
boilers.
(c) The Uniied States Army Armor Center and
Fort Knox:-
ee ee ee)
15
(1) Five oil burning indirect heat. exchanges in
the 0-10 Million BTU per hour input range;
(2) Two hundred seventy three coal-fired in-
direct heat exchangers in the 0-10,000 Million
BTU per hour input range;
(3)Two trash incinerators in the 101-200
pounds per hour capacity range;
(4) Four hundred thirty six coal-fired stoves of
less than 50,000 BTU per hour each range;
(S) Stone crushing process operations for road
building purposes.
(d) The 10l1st. Airborne (Airmobile) Division
and Fort Campbell :-
(1) One pathological incinerator at post hos-
pital with a rated capacity of approximately
700,000 BTU per hour input range;
(2) Two gas-fired boilers with total burner in-
put of approximately 5,600 Million BTU per hour
each;
(3) Two gas-fired boilers with approximately
6,300 Million RTU per hour input each;
(4) Five combination gas and coal-fired indirect
heat exchangers with approximately 20 Million
RTU per hour input range each;
(5) Three combination nel oil-tired boilers
with approximately 50 Million BTU per hour in-
put range each;
(6) One hand-coal-fired steam boiler with ap-
BEST COPY AVAILABLE
16
proximately 720 Million BTU per hour input
range;
(7) Twenty five hand-coal-fired steam boilers
with approximately 348 Million per hour input
range each;
(8) Three natural gas-fired indirect heat ex-
changers having approximately 2,800 Million
TU per hour input range each;
(9) Six hand-coal-fired furnaces having 2,712
Million BTU per hour capacity each;
(10) One hand-coal-fired indirect heat exchanger
having 576 Million BTU per hour capacity;
(11) Nine natural gas-fired indirect heat ex-
changers having approximateiy 6,040 Million
ITU per hour capacity input each:
(12) Two natural gas-fired indirect heat ex-
changers having approximately 4,840 Million
BTU per hour capacity each;
(13)Two combination gas-oil-fired indirect heat ex-
changers having approximately 11,250 Million BTU
per hour capacity each.
(c) The Paducah Gaseous Diffusion Plant of
the Atomic Energy Commission :-
(1) Three combination gas and fuel oil-fired in-
direct heat exchangers having a rated capacity of
approximately 115 Million BTU per hour capacity
each;
(2) Two liquidified petroleum gas incinerators
|
|
:
17
having rated capacity of approximately 450,000
BTU per hour each;
(3) One paper-burning incinerator with a rated
capacity of approximately 10 bushels;
(4) Twenty five different point sources of emis-
sions from the manufacturing process operations.
Data as to emission outputs classified as restricted
data in accordance with Atomic Energy Act of
1954,
(f) The Lexington-Bluegrass Army Depot:-
(1) Fifteen hand-coal-fired indirect heat ex-
changers having approximately 50,000 BTU per
hour capacity each;
(2) One deactivation furnace for recovery of
elemental metal from ammunition of unknown
BTU per hour input;
(3) One central heating system of unknown
BTU per hour capacity;
(4) Unknown number of gas-fired indirect heat
exchangers of unknown BTU per hour capacity.
FIRST CLAIM
29. In furtherance of and to comply with the
stated purpose of the Clean Air Act of 1970, U.S.C.,
Title 42. Section 1857, et seq., “to protect and enhance
the quality of the nation’s air resources,” the plaintiff,
Commonwealth of Kentucky, as required by Sections
107 and 110 of the Clean Air Act, and acting by and
through its administrative agency, the Kentucky Air
18
Pollution Control Commission, promulgated and sub-
mitted to the defendant Ruckelshaus of EPA an imple-
mentation plan. This implementation plan, “Imple-
mentation Plan for the Attainment and Maintenance
of the National and State Primary and Secondary
Ambient Air Quality Standards for the Commonwealth
of Kentucky”, (hereinafter referred to as the “Ken-
tucky Plan”), specifies the manner in which the state
and national primary and secondary ambient air qual-
ity standards will be achieved and maintained within
the Commonwealth of Kentucky. Attached to this
Complaint as if fully set out herein at length is a copy
of the Clean Air Act of 1970, as “Exhibit A”. [Exhibit A
omitted in herein Appendix]
30. Subsection (a) (2) (B) of Section 110 of the
Clean Air Act of 1970 requires that the Kentucky Plan
include “emission limitations, schedules, and time
tables for compliance with such limitations, and such
other measures as may he necessary to insure attain-
ment and maintenance of such primary or secondary
.” Section 5 of Kentucky Air Pollution
Control Commission Administrative Regulation AP-1,
standard. ..
which sets out the permit requirement and procedures
used to monitor orderly compliance with the Federal
and Kentucky Air Laws, was specifically promulgated
as part of Chapter 7 of the Kentucky Plan so that the
timetables, and attainment measures of
Subsection (a) (2) (B) could be met. Attached to this
Complaint and made a part hereof as if copied at length
schedules,
herein is a copy of the Administrative Regulations of
ee ee ee a a ny
19
the Kentucky Air Pollution Control Commission, as
“Exhibit B”. [Exhibit B omitted in herein Appendix]
31. The Kentucky Plan was approved by defend-
ant Ruckelshaus, and the approval was published in
the Federal Register, Volume 37, Number 105, pp.
10868 and 10869, and, thereby, the Plan became opera-
tive under both Federal and Kentucky law. Kentucky’s
Plan became Federal law pursuant to Sections 110,
113, and 118 of the Clean Air Act of 1970, and Ken-
tucky law pursuant to Kentucky Revised Statutes
224.310, et seq., and Kentucky Revised Statutes, Chap-
ter 13. Attached to this Complaint as if fully set out
herein at length herein is a copy of the Federal] Regis-
ter, Volume 37, Number 105, as “Exhibit C”. [Exhibit C
omitted in herein Appendix]
32. Section 118 of the Clean Air Act of 1970 re-
quires that “federal facilities’ comply with the ap-
proved Kentucky Plan and states:
“Each department, agency, and instrumentality of
the executive, legislative, and judicial branches of
the Federal Government (1) having jurisdiction
over any property or facility, or (2) engaged in
any activity resulting, or which may result, in
the discharge of air pollutants, shall comply with
Federal, State, interstate and local requirements
respecting control and abatement of air pollution
to the same extent that any person is subject to
such requirements.”
33. Further, Executive Order No. 11507 promul-
20
gated by President Nixon on February 4, 1970, pro-
vides in Section 4 that:
“Heads of agencies shall ensure that all facilities
under their jurisdiction are designed, operated
and maintained so as to meet the following re-
quirement:
(1) Facilities shall conform to air and water
quality standards as defined in Section 2(d) of
this order... .”
Section 2(b) defines agencies as being, “departments,
agencies and establishments of the executive branch.”
Section 2(d) defines air and water quality standards as
their respective quality standards and “related plans of
implementation. .. adopted pursuant to the Clean Air
Act .. . and Federal Water Pollution Control Act. . .*
(Emphasis Ours).
34. The above-equipment described in paragraph
numbered 28 (a)-(f), and incorporated herein by refer-
ence, is air pollutant emitting equipment. Section 5
of Kentucky Air Pollution Control Commission Ad-
ministrative Regulation, AP-1, which is set forth in
Chapter 7 of the Kentucky Plan, as promulgated
pursuant to Section 110 and 118 of the Clean Air Act
of 1970, requires that the owner and operator of such
air pollutant emitting equipment apply for and obtain
from the Kentucky Air Pollution Control Commis-
sion, a permit to operate their air contaminant equip-
ment. The defendants, Tennessee Valley Authority,
Seeber, Wagner, McPherson, Cavaniss, Desbory,
Vuley, Cushman, Abrams, Froehlke, Department of
ee ee ee Sr |
Sa a en
1
q
:
3
21
the Army, Schlesinger, Hollingsworth, Stiller, and
Atomic Enerry Commission, in their official capacities
as either officers or agencies of the United States Gov-
ernment, and Union Carbide Corporation have wrong-
fully and unlawfully refused, and continue to do so,
ed to do so by agents, servants, and/or employees of
defendant’s respective equipment as set forth in para-
graph numbered 28 (a)-(f) after having been request-
ed to do so by agents, servants, and /or employees of
the Commonwealth of Kentucky. Attached hereto
and incorporated herein by reference as “Exhibit D” [In-
cluded in herein Appendix] are copies of request letters
to the defendants and their refusals.
35. Furthermore, plaintiff has reasonable grounds
to believe that at the United States Army Armor
Center and Fort Knox, Lexington-Bluegrass Army
Depot, and Fort Campbell, there exists other articles,
machines, pieces of equipment or other contrivances
for which operating permits are required by Chapter 7
of the Kentucky Plan.
36. Additionally, plaintiff, based upon informa-
tion received, states that equipment now being operated
at the Shawnee and Paradise Power Plants of Ten-
nessce Vasey Authority, the Paducah Gaseous Dif-
fusion Plan. of Atomic Energy Commission, and the
United States Army Military Reservations as set forth
in paragraph numbered 28 (a)-(f), and incorporated
heren, is in violation of the emission limitations of
the Kentucky Pian. Plaintiff has reasonable grounds
to believe and states that the Shawnee Power Plant
of Tennessee Valley Authority is emitting particulate
22
matter at a rate of approximately 2.3 times the allow-
able emission limits, and is emitting sulfur dioxide at
a rate of approximately 2.5 tmes the allowable emis-
sion limits, based on engineering calculations using
best data available to plaintiff:
Allowable Actual
Particulate 1481.7 Ibs/hr 3396 Ibs/hr
Sulfur Dioxide 26940 \bs/hr 68295 Ibs/hr
Plaintiff has reasonable grounds to believe and states
that the Paradise Power Plant of Tennessee Valley
Authority is emitting sulfur dioxide at a rate of ap-
proximately 3.85 times the allowable emission limits,
based on engineering calculations using best data avail-
able to plaintiff:
Actual
92465.6 lbs/hr
Allowable
24072 Ibs/hr
37. Plaintiff states that unless the defendants
are enjoined and restrained from continuation of their
unlawful acts as set forth in paragraph numbered 34,
35, and 36, herein, the defendants will continue to so
violate Sections 108 and 110 of the Clean Air Act of
1970. Plaintiff has no other adequate remedy at law
and has neither applied for nor been refused on the
facts herein stated by any Court of the United States
of America a restraining order, temporary injunction,
or permanent injunction. The plaintiff and its class
of citizens, if the defendants are permitted to con-
tinue their unlawful acts, will be permanently denied
the right to the use of clean air in the atmosphere,
their health and welfare will be endangered, and the
Sulfur Dioxide
ala onal caemanemmiibllatl
ote ee MS ll, Sale
23
environs of the Commonwealth of Kentucky wil] be
permanently damaged.
SECOND CLAIM
38. Section 110 of the Clean Air Act of 1970
required the Commonwealth of Kentucky to promul-
gate and adopt an implementation plan to meet and
attain the national primary and secondary air quality
standards. See paragraph 29 and 30, supra, which are
incorporated herein by reference. When the Ken-
tucky Plan was approved by the defendant Ruckelshaus,
pursuant to Section 110 of the Clean Air Act, (See
paragraph 31, supra, which is incorporated herein by
reference), the obligation of its enforcement rested,
not only upon the Commonwealth of Kentucky, pur-
suant to Section 101(3), but also on the Federal Gov-
ernment, through the Administrator, (the defendant
Ruckelshaus), of Environmental Protection Agency,
pursuant to Section 113 of the Clean Air Act.
39. In particular, Section 113 of the Clean Air
Act of 1970 provides that “whenever, on the basis of
any information available to him, the Administrator
finds that any person is in violation of any requirement
of an applicable implementation plan .. . or that violations
of an applicable implementation plan are so widespread
that such violations appear to result from a failure
of the State in which the plan applies to enforce the
plan effectively. . . ,” (Emphasis Ours), the Admini-
strator of Environmental Protection Agency is em-
powered to commence appropriate actions toward ob-
taining compliance with the Plan.
24
40. The unlawful refusals of the defendants
Seeber, Wagner, McPherson, Cavaniss, Union Car-
bide Corporation, Tennessee Valley Authority, Des-
bory, Vuley, Cushman, Abrams, Froehlke, Depart-
ment of the Army, Schlesinger, Hollingsworth, Stiller,
and Atomic Energy Commission, to apply for and ob-
tain a permit to operate from the Kentucky Air Pollu-
tion Control Commission for the equipment they each
respectively are operating as set forth in paragraphs
28 (a)-(f) and 34, and incorporated herein by refer-
ence: the failure of these defendants to submit ap-
propriate time schedules for compliance; and their
violations of the emission limitations for each defend-
ant’s equipment, as set forth in paragraphs 28(a)-(f),
35. and 36, and incorporated herein by reference, have
resulted not only in “mere” violations, but in “wide-
spread” violations of the Kentucky Plan, because of
the inability of the Commonwealth of Kentucky to
effectively enforce its rules and regulations.
4]. Defendants Ruckelshaus, Ravan and Environ-
mental Protection Agency, with information of the
violations and widespread violations of the Kentucky
Plan and of the inability of the Commonwealth of
Kentucky to effectively enforce the Plan, have not
cr mmenced any actions toward obtaining compliance
hy the defendants as set out in paragraph numbered
30 herein with the provisions of the Kentucky Plan
as required by Section 113 of the Clean Air Act of
1970.
42. The failure of the defendants Ruckelshaus,
Ravan and Environmental Protection Agency to com-
mence appropriate actions against the defendants,
Seeber, Wagner, McPherson, Cavaniss, Union Car-
bide Corporation, Tennessee Valley Authority, Des-
bory, Vuley, Cushman, Abrams, Froehlke, Department
of the Army, Schlesinger, Hollingsworth, Stiller, and
Atomic Energy Commission, to compel compliance
with the Kentucky Plan as to permits to operate, time
schedules, and emission limitations, is so arbitrary,
capricious, unlawful, and unwarranted as to deprive
the citizens of the plaintiff state, due process and equal
protection of the law as granted to the citizens of the
Commonwealth of Kentucky, by the Fifth, Ninth, and
Fourteenth Amendment to the Constitution of the
United States of America.
43. The plaintiff further states that the actions
of defendants Ruckelshaus, Ravan and Environment-
al Protection Agency, as set forth in paragraph num-
bered 41 and incorporated herein by reference, unless
jointly and severally ordered to commence appropriate
action under Section 113 of the Clean Air Act of 1970
to obtain full compliance by defendants set forth in
paragraph numbered 40 and incorporated herein by
reference, will permanently deprive the plaintiff, its
citizens, cities, counties, political subdivisions and
agencies of the Commonwealth of Kentucky, of their
right to the use of clean air in the atmosphere of the
Commonwealth of Kentucky, and permanently dam-
age the environs of the Commonwealth of Kentucky,
and will allow conditions to be created which are
dangerous to the health and welfare of the citizens
of the Commonwealth of Kentucky.
26
44. Plaintiff states that the failure of defendants
Environmental Protection Agency, Ruckelshaus, and
Ravan to commence actions for compliance against
the defendants set forth in paragraph numbered 40
and incorporated herein by reference is manifestly 4
emplified by the October 17, 1972, directive of defen i-
ant Ravan, which recommended that Federal facili-
ties in Region IV should not apply for permits from
any state. Attached as “Exhibit E” [Included in mtn
Appendix] and incorporated herein by reference as if fully
copied herein is the Ravan letter of October 17, 1972.
THIRD CLAIM
45. Plaintiff states that defendants Seeber,
Wagner, McPherson, Cavaniss, Tennessee Valley Au-
thority, Desbory, Vuley. Cushman, Abrams, Froehlke,
Department of the Army, Schlesinger, Hollingswort,
Stiller, Atomic Energy Commission, and Union Car-
bide Corporation on divers occasions have been =
quested by agents, servants, and /or employees of t e
Commonwealth of Kentucky to submit an application
for and to obtain a permit to operate an air contamin-
ant source and failed to submit the compliance schedu-
les for attainment if the emission limitations as requir-
ed by Chapter 7 of the Kentucky Plan adopted pur-
suant to the Clean Air Act of 1970.
46. Plaintiff states that the defendants as set
forth in paragraphs numbered 34 and 45 and incor-
porated herein by reference have refused to submit
applications for a permit to operate an air —
ant source on the basis of the policies of their re
27
spective agencies that Federal agencies do not have
to comply with the permit requirements of a state
plan as well as those of Kentucky’s Plan, which is
now applicable Federal law. Plaintiff states that there
is existing a dispute between plaintiff and these de-
dendants as to the defendants’ complying with the
permit requirements of the Kentucky Plan and this
Court should determine rights and obligations of the
parties hereto.
47. Plaintiff states that defendants Environment-
al Protection Agency, Ruckelshaus and Ravan have
failed to commence appropriate action against the de-
fendants set forth in paragraphs numbered 39, 40, 41,
42, and 45, and incorporated herein by reference, toward
obtaining compliance with the Kentucky Plan as re-
quired by Section 113 of the Clean Air Act of 1970,
This Court should determine whether these defend-
ants should assist the plaintiff in obtaining compliance
with the permit system as set forth in Chapter 7 of
Kentucky’s Plan, which has been made Federal law.
Plaintiff requests the review of this agency action or
lack thereof, and that this action is being unlawfully
withheld and/or unreasonably delayed, pursuant to
U.S.C., Title 5, Section 702, et seq.
FOURTH CLAIM
48. Plaintiff states that the policy of Tennessee
Valley Authority, Atomic Energy Commission, En-
vironmental Protection Agency, and the Department
of the Army, as set forth in paragraph numbered 3
through 47 and incorporated herein by reference that
28
Federal agencies do not have to comply with the per-
mit requirements of Kentucky’s Plan promulgated
pursuant to U.S.C., Title 42, Section 1857, et seq., is
arbitrary, capricious, abuse of discretion, not in ac-
cordance with law, and contrary to the constitutional
rights of plaintiff and to its citizens. Therefore, this
policy should be declared unl: wful and set aside.
FIFTH CLAIM
49. Plaintiff states that Section 5 of the Admini-
strative Regulation AP-1 of Kentucky Air Pollution
Control Commission promulgated pursuant to Ken-
tucky Revised Statutes 224.360 and Kentucky Revised
Statutes 224.430 requires that any person who uses,
operates or maintains an air contaminant source fe-
sulting in the presence of air contaminants in the at-
mosphere of the Commonwealth of Kentucky must
first obtain a permit to operate. A copy of Admin-
‘strative Regulation AP-1 of the Kentucky Air Pollu-
tion Control Commission being heretofore incorparated
:n this Complaint as plaintiff's “Exhibit B”. [Exhibit B
omitted in herein Appendix]
50. Plaintiff states that the defendants, Seeber,
\Wagner, McPherson, Cavaniss, Tennessee Valley Au-
thority, Desbory, Vuley, Cushman, Abrams, Froehlke,
Department of the Army Schlesinger, Hollingsworth,
Stiller, Atomic Energy Commission, and Union Car-
bide Corporation, use, operate and maintain air con-
taminant equipment in the Commonwealth of Ken-
tucky, that Section 5 of Administrative Regulation AP-
5 of the Kentucky Air Pollution Control Commission
29
requires the users, operators, maintainers of such
equipment to obtain a permit to operate. These de-
fendants each operate their respective equipment as
set forth in paragraphs 28(a)-(f) and 29 incorporated
herein by reference and refuse to obtain a permit to
operate after having been requested to do so by agents,
servants, and/or employees of the Commonwealth of
Kentucky. These defendants have so refused to apply
for a permit in either official capacity or agency of the
United States Government, and Union Carbide Cor-
poration as the contractor-operator of the Paducah
Gaseous Diffusion Plant of the Atomic Energy Com-
mission. See paragraph numbered 34 which is incor-
porated herein the same as if fully set forth herein.
51. Section 101 (a) (3) of the Clean Air Act of
1970 provides that the prevention and control of air
pollution at its source is the primary responsibility of
states and local governments. Section 118 of the Clean
Air Act of 1970 provides that “each” department,
agency, and instrumentality of the executive, legis-
lative and judicial branches of the Federal Govern-
ment (1) having jurisdiction over any property of fa-
cility, or (2) engaged in any activity resulting, or
which may result, in the discharge of air pollutants,
shall comply with Federal, State, interstate and local
requirements respecting control and abatement of air
pollution to the same extent that any person is subject
to such requirements. Section 116 of the Clean Air
Act of 1970 provides that except in the area of state
regulations on moving sources, (motor vehicles),
“nothing in this act shall preclude or deny the right
of any state or political subdivision thereof to adopt
30
or enforce . . . (2) any requirement respecting control
or abatement of air pollution”.
52. Plaintiff states that the permit requirement
under Kentucky laws, Kentucky Revised Statutes 224.-
360, Kentucky Revised Statutes 224.430, and Admini-
strative Regulation AP-1 of the Kentucky Air Pollu-
tion Control Commission, is the major portion of the
abatement and control program for air pollution by
the Commonwealth of Kentucky. When a person sub-
mits an application to operate an air contaminant
source they must set forth the specific nature of their
operations, the types of air pollutants emitted, the
point source for each of the emissions and the control
ejuipment presently installed or to be installed. The
engineering staff of the Kentucky Air Pollution Con-
trol Commission by reviewing these plans and specifi-
cations are able to calculate and determine whether
or not that particular air contaminant source is com-
plying with the air quality standards. This review
can prevent the operation of the equipment which al-
lows air contaminants to be emitted in excess of that
allowed by applicable regulation, as well as provides
for the making of the necessary changes by the air
contaminant sources so that the air quality standards
will not he violated.
53. Plaintiff states that as a result of the United
States Congress enacting Section 101, Section 116,
and Section 118 of the Clean Air Act of 1970, there
was an affirmative waiver of the sovereign immunity
of the United States of America and, therefore, pro-
vided that Federal agencies and their officials must
31
comply with the state abatement and control programs, |
and provides that the states bring the necessary litiga-
tion for compliance. This Court should issue an order
directing the defendants Seeber, Wagner, McPher-
son, Cavaniss, Tennessee Valley Authority, Desbory,
Vuley, Cushman, Abrams, Froehlke, Department of
the Army, Schlesinger, Hollingsworth, Stiller, Atomic
Energy Commission, and Union Carbide Corporation
comply with the permit requiren.ents of Kentucky’s
abatement and control program.
WHEREFORE, plaintiff prays as follows:
1. On plaintiff's First Claim, (paragraphs num-
bered 29 through 37 herein), that the defendants,
Seeber, Wagner, McPherson, Cavaniss, Tennessee Val-
ley Authority, Deshory, Vuley, Cushman, Abrams,
Froehlke, Department of the Army, Schlesinger,
Hollingsworth, Stiller, Atomic Energy Commission,
and Union Carbide Corporation be jointly and several-
ly: —
(A). Ordered to apply for and to obtain permits
from the Kentucky Air Pollution Control Commis-
sion, pursuant to Seciion 5 of Administrative Regula-
tion AP-1 of the Kentucky Air Pollution Control
Commission as promulgated in Chapter 7 of the Ken-
tucky Plan pursuant to Section 107 and Section 110 of
the Clean Air Act of 1970;
(B). Permanently restrained from refusing to
comply with the provisions of Section 118 of the Clean
Air Act of 1970.
2. On plaintiff's Second Claim, (paragraphs
32
numbered 38 through 44 herein), that the defendants
Ravan, Ruckelshaus and the Environmental Protec-
tion Agency be jointly and severally: —
(A). Ordered to commence appropriate action
under Section 113 of the Clean Air Act of 1970 to ob-
tain full compliance by the defendants set forth in
paragraph numbered 1 of this prayer with the Ken-
tucky Plan, specifically Section 5 of Administrative
Regulation AP-1 of the Kentucky Air Pollution Con-
trol Commission, which is contained in Chapter 7 of
the Kentucky Plan.
3. On plaintiff's Third Claim, (paragraphs num-
bered 45 through 47 herein), have a judgment and de-
cree of this Court declaring plaintiff's rights and
status, and more particularly adjudicating : —
(A). That the defendants set forth in paragraph
numbered 1 of this prayer, jointly and severally, do
not have the right, authority, or power to refuse to
comply with the permit requirements of the Kentucky
Plan;
(RB). That the defendants Ravan, Ruckelshaus,
and the Environmental Protection Agency do not have
the right, authority, or power when there are knowing-
ly widespread violations of the Kentucky Plan to fail
to initiate appropriate action pursuant to Section 113
of the Clean Air Act of 1970.
4. On plaintiff's Fourth Claim, (paragraph num-
bered 48 herein) : —
(A). That the policy of Tennessee Valley Au-
33
thority, Atomic Energy Commission, and the Depart-
ment of the Army stating that Federal agencies and
facilities in Kentucky do not have to fully comply
with the Kentucky Plan be held unlawful and set
aside.
5. On plaintiff's Fifth Claim, (paragraphs num-
bered 49 through 53 herein), that the defendants set
forth in paragraph numbered 1 of this prayer be joint-
ly and severally: —
(A). Ordered to apply for and obtain permits
from the Kentucky Air Pollution Control Commis-
sion, as required by Kentucky Revised Statutes 224.-
360, Kentucky Revised Statutes 224.430, and Admini-
Strative Regulation AP-1 of the Kentucky Air Pollu-
tion Control Commission.
(B). Permanently restrained from refusing to
comply with the abatement and control program of
the Kentucky Air Pollution Control Commission, an
administrative agency of the Commonwealth of Ken-
tucky, as required by the Clean Air Act of 1970.
6. That defendants pay the costs herein expend-
ed and
7. For any and all other proper orders and re-
lief to which plaintiff may be entitled.
Respectfully Submitted,
34
/s/ Ed W. Hancock
ED W. HANCOCK
ATTORNEY GENERAL
COMMONWEALTH OF
KENTUCKY
Capitol Building
Frankfort, Kentucky 40601
(Telephone: (502) 564-4513)
[Exhibit B Omitted in Printing]
* + od
[Exhibit C Omitted in Printing]
“EXHIBIT D”
Request Letters To Defendants.
/s/ Kenneth A. Howe Jr.
KENNETH A. HOWE JR.
ASSISTANT ATTORNEY
GENERAL UNION CARBIDE CORPORATION
COMMONWEALTH OF P.O. Box Y
KENTUCKY Oak Ridge, Tennessee 37830
Law Department
/s/ Paul A. Lynch
Oak Ridge Office
PAUL A. LYNCH,
ASSISTANT ATTORNEY July 29, 1971
GENERAL | |
COMMONWEALTH OF Mr. John W. Sullivan, Chief
KENTUCKY Engineering Section
Kentucky Air Pollution Control Commission
275 East Main Street
Frankfort, Kentucky 40601
Re: Permit Application for Air Contaminant
Source Paducah Gaseous Diffusion Plant
309 Shelby Street, Room 111
Frankfort, Kentucky 40601
(Telephone: (502) 564-3595)
COUNSEL FOR PLAINTIFF
COMMONWEALTH OF
KENTUCKY Dear Mr. Sullivan:
Your letter of July 2, 1971, directed to Union Carbide
offices in Paducah, Kentucky, has been forwarded to
us for reply. The letter noted that you had not then
received the captioned permit application, requested
* * *
[Exhibit A Omitted in Printing]
36
in your previous letter of June 15, and forwarded an
additional set of application forms.
As I advised you in our telephone conversation some
time ago, all facilities at the Paducah Gaseous Diffu-
sions Plant are owned by the United States Govern-
ment, acting by and through the Atomic Energy Com-
mission, and operated by Union Carbide acting under
its prime contract with the AEC. Any action such as
the application for a permit from a state regulatory
agency must, therefore, be taken by the AEC, under
the requirements of Federal statutes and regulations
as well as the contractual provisions under which
Union Carbide operates these facilities.
Your original and subsequent communications were
promptly delivered by us to the proper AEC officials
at Paducah, and we would suggest that your future
communications regarding this and related matters
should be directed to such officials. The cognizant AEC
official is: Mr. B. N. Stiller, Area Manager, Paducah
Office, Oak Ridge Operations, U. S. Atomic Energy
Commission, P. O. Box 1150, Paducah, Kentucky
42001.
We trust the foregoing information will simplify your
handling of matters relative to the Paducah Gaseous
Diffusion Plant. If we can be of further service, please
advise.
Sincerely,
/s/ Edgar R. Bowers
Edgar R. Bowers
ERB:awh
37
UNITED STATES
ATOMIC ENERGY COMMISSION
IN Reply Refer To:
M:EWN
Paducah, Kentucky 42001
July 23, 1971
Kentucky Air Poilution Control Commission
ATTN: Mr. J. W. Sullivan
275 East Main Street
Frankfort, Kentucky 40601
Subject: AIR POLLUTION CONTROL COMMIS-
SION — INVENTORY
Gentlemen:
Your Permit Application, Form APC-110, forwarded
to our operating contractor, Union Carbide Corpora-
tion, Nuclear Division, relative to the Government-
owned gaseous diffusion plant near Paducah, Kentucky,
was referred to this office for reply.
While we do not consider the Kentucky requirements
to be directly applicable to the operation of the Fed-
erally-owned facility for atomic energy purposes, we
share with the State a deep interest in preventing and
abating both air and water pollution problems and are
happy to cooperate as a matter of comity with the Ken-
tucky Air Pollution Control Commission. We there-
38
fore directed our operating contractor to complete the
form providing the information sought, and we are
submitting this information to you. With this trans-
mittal, we are demonstrating our willingness to co-
operate with the State within the framework of Exe-
cutive Order No. 11507 which provides the policy of
the Federal Government to work with State and local
bodies in matters of air and water pollution control.
If you have any questions regarding the data sub-
mitted, please advise. My telephone number is Area
Code 502,444-6311, extension 227, or FTS 502-444-6227.
Sincerely,
/s/ B. N. Stiller
Manager
Paducah Area
Enclosure:
Form APC-100w/ atts.
39
June 29, 1972
Mr. Robert L. Eaton
Administrative Assistant
A G Office
Headquarters US Army Armor Center and
Fort Knox
Fort Knox, Kentucky 40121
Dear Mr. Eaton:
Regarding the Army’s air pollution control pro-
gram at Fort Knox referred to in your letter of June
9, 1972, we would like to know about the air contamin-
ant sources and the degree that they will be controll-
ed. The anticipated schedule for completion of the
various abatement projects you mentioned is also de-
sired.
The reason for requesting this information is that
the Federal Government requires that the Kentucky
Air Pollution Control Commission achieve control of
emissions from air contaminant sources in the State
within a specific time schedule.
If you have any questions or wish an informal
meeting to discuss this matter, please contact me.
Sincerely,
/s/ Samuel M. Murphy
Engineering Program
SMM :ce
40
DEPARTMENT OF THE ARMY
HEADQUARTERS US ARMY ARMOR CENTER
AND FORT KNOX
FORT KNOX, KENTUCKY 40121
AHBADFAE 9 JUN 1972
Mr. Samuel M. Murphy, Engineering Program
Director
Kentucky Air Pollution Contro] Commission
275 East Main Street
Frankfort, Kentucky 40601
Dear Mr. Murphy:
Reference is made to your letter of May 26, 1972, con-
cerning pollution control permits for any contaminat-
ing facilities located at Fort Knox.
Department of the Army policies prohibit installation
commanders from making application for State or local
permits relating to air emissions, waste water dis-
charges or the construction and operation of facilities
involving pollution. However, the Army does have a
comprehensive pollution control program and all pol-
lution abatement projects possible within funding and
approved limitations are being accomplished at this
installation.
Sincerely yours,
/s/ Robert L. Eaton
ROBERT L. EATON
Administrative Asst
AG Office
41
May 26, 1972
Commanding General, U.S.A.A.R.M.C.
Fort Knox, Kentucky 40121
Dear Sir:
I wish to call to your attention the Clean Air Act,
December 1970, Section 118, “Control of Pollution
From Federal Facilities.” The first sentence of this
section states —
“Each department, agency, and _ instrumentality
of the executive, legislative, and judicial branches
of the Federal Government (1) having jurisdic-
tion over any property of facility, or (2) engaged
in any activity resulting, or which may result, in
the discharge of air pollutants, shall comply with
Federal, State, interstate, and local requirements
respecting control and abatement of air pollution
to the same extent that any person is subject to
such requirements.”
(U.S. Government Printing Office: 1971 0-413-
241, P. 27)
To inform you of the requirements in Kentucky,
I enclose a copy of KAPCC Regulations AP-1 through
AP-10 and a set of permit applications forms with in-
structions.
You will note in AP-1, Section 5 that it is a re-
quirement of the Kentucky Air Pollution Control Com-
mission that any one who constructs or operates an
air contaminant source in the State must have a per-
mit. The Commission’s policy is to issue one permit
42
to cover all source emissions of a facility. Therefore
all emission sources should be indicated on the appli-
cation and include a description of the controls cur-
rently in use or proposed to achieve compliance with
the regulations.
Commanding General, U.S.A.A.R.M.C.
Page Two
May 26, 1972
In order that a permit be issued it is necessary to
include a time schedule showing when compliance will
be accomplished for those sources not yet controlled.
Among the sources that should be included in the
permit application are incinerators, indirect heat ex-
changers and any process operations such as stone
crushing and hot mix asphalt plants.
In view of the above you are requested to submit
an application with all pertinent data on or before Au-
gust 26, 1972.
If you have any questions, feel free to contact
this office.
Sincerely,
/s/ Samuel M. Murphy
Engineering Program
SMM :ce
Enclosure
43
DEPARTMENT OF THE ARMY
HEADQUARTERS, LEXINGTON-BLUE GRASS
ARMY DEPOT
LEXINGTON, KENTUCKY 40507
25 JUL 1972
AMXLX-S
Mr. Samuel M. Murphy
Kentucky Air Pollution Control Commission
275 East Main Street
Frankfort, Kentucky 40601
Dear Mr. Murphy:
The following information is forwarded in response
to your letter of 1 June 1972 requesting the depot to
apply for a permit in compliance with KAPCC Regu-
lations AP-1 through AP-10.
Staff and operating personnel at all levels of the depot
have taken aggressive action to improve the environ-
ment and to control or eliminate problem areas that
could be detrimental to the ecology. In June 1969, a
depot-wide survey encompassing all operations wis
conducted to identify potential pollution problem areas.
The areas are under continual surveillance to insure
that approved procedures are followed.
The depot has invested considerable operating capit:!
in modernizing operations, in procuring and installing
new equipment, and in modifying and constructing new
44
facilities to combat actual and incipient pollution haz-
ards. Some examples are: within the spirit of the
Clean Air Act of December 1970 several coal burning
facilities were converted to fuel oil operations; several
quarters have had new natural gas heating systems in-
stalled; open-pit burning was discontinued as of Oc-
tober 1970, in coordination with state officials; refuse
disposal is accomplished by operation of sanitary land-
fills. Further, a project to install air pollution control
cyclone collectors in the central heating plant has been
approved by higher headquarters and as funds are
provided should be installed in the foreseeable future.
25 JUL 1972
Mr. Samuel M. Murphy
Kentucky Air Pollution Control Commission
Department of the Army policy prohibits installation
commanders from applying for permits from state or
local pollution regulatory authorities. Consequently,
this depot must decline your request to submit the per-
mit application forms. Although we are not allowed
to submit these forms, please understand that this
depot will cooperate in every possible way to control
and to eliminate pollution hazards. In this regard,
representatives from state and local environmental
polluiion control agencies may visit our facilities, may
examine operating records and may conduct tests pro-
vided security restrictions are met and the visitors are
accompanied by applicable representatives designated
45
by Headquarters, US Army Materiel Command, Wash-
ington, DC.
Sincerely yours,
/s/ E. S. Goepper
E. S. GOEPPER
COL, QMC
Commanding Officer
Copy furnished:
AMCIS-MD, Washington, DC
June 1, 1972
Col Edwin S. Goepper
Commanding Officer
Lexington Blue Grass Depot
Lexington, Kentucky 40507
Dear Col Goepper:
I wish to call to your attention the Clean Air Act,
December 1970, Section 118, “Control of Pollution
from Federal] Facilities’ The first sentence of this
section states —
“Each department, agency, and instrumentality
of the executive, legislative, and judicial branches
of the Federal Government (1) having jurisdic-
tion over any property or facility, or (2) engaged
in any activity resulting, or which may result, in
the discharge of air pollutants, shall comply with Fed-
eral, State, interstate, and local requirements re-
specting control and abatement of air pollution to
46
the same extent that any person is subject to such
requirements.”
(U.S. Government Printing Office: 1971 0.413 241,
P. 27)
To inform you of the requirements in Kentucky,
I am enclosing a copy of KAPCC Regulations AP-l
through AP-10 and a set of permit application forms
with instructions.
You will note in AP-1, Section 5 that it is a re-
quirement of the Kentucky Air Pollution Control
Commission that any one who constructs or operates
an air contaminant sonrce in the State must have a
permit. The Commission’s policy is to issue one per-
mit to cover all source emissions of a facility. There-
fore all emission sources should be indicated on the
application and include a description of the controls
currently in use or proposed to achieve compliance
with the regulations.
In order that a permit be issued it 1s necessary to
include a time schedule showing when compliance will
be accomplished for those sources not yet controlled.
Col. Edwin S. Goepper
Page Two
June 1, 1972
Among the sources that should be included in the
permit application are incinerators, indirect heat ex-
changers and any process operations, such as stone
crushing and hot mix asphalt plants.
In view of the above yeu are requested to submit
47
an application with all pertinent data on or before
August 31, 1972.
If you have any questions, feel free to contact this
office.
Sincerely,
/s/ Samuel M. Murphy
Engineering Program
SMM.ce
Enclosures
DEPARTMENT OF THE ARMY
HEADQUARTERS 101ST AIRBORNE
DIVISION (AIRMOBILE) AND
FORT CAMPBELL
FORT CAMPBELL, KENTUCKY 42223
AJCEN
15 August 1972
AUG 17 Rec'd
Kentucky Air Pollution Control Commission
275 East Main Street
Frankfort, Kentucky 40601
Attention: Mr. Samuel M. Murphy
Gentlemen:
Reference is made to your letter dated 1 June 1972
concerning the submittal of an application for a permit
for operation of heating plants.
48
Although current Department of the Army regu-
lations do not allow us to apply for such a permit we
do wish to cooperate in every way possible with your
office. Accordingly, enclosed is pertinent information
on our heating plants which appear to be covered by
your regulations. Please advise if any further infor-
mation is desired.
Sincerely yours,
/s/ Robert Anderson
ROBERT ANDERSON
Acting Facilities Engineer
1 Incl
June 1, 1972
Commanding Officer, U.S. Army
Defense Military Function
Fort Campbell, Kentucky 42223
Dear Sir:
I wish to call to your attention the Clean Air Act,
December 1970, Section 118, “Control of Pollution
from Federal Facilities.” The first sentence of this
section states—
“Each department, agency and _ instrumentality
of the executive, legislative, and judicial branches
of the Federal Government (1) having jurisdic-
tion over any property or facility, or (2) engaged
in any activity resulting, or which may result, in
49
the discharge of air pollutants, shall comply with
Federal, State, interstate, and local requirements
respecting control and abatement of air pollution
to the same extent that any person is subject to
such requirements.”
(U.S. Government Printing Office: 1971 0-413-
241, P. 27)
To inform you of the requirements in Kentucky,
I am enclosing a copy of KAPCC Regulations AP-1
through AP 10 and a set of permit application forms
with instructions.
You will note in AP-1, Section 5 that it is a re-
quirement of the Kentucky Air Pollution Control
Commission that amy one who constructs or operates
an air contaminant source in the State must have a
permit. The Commission’s policy is to issue one per-
mit to cover all source emissions of a facility. There-
fore all emission sources should be indicated on the
application and include a description of the controls
currently in use or proposed to achieve compliance
with the regulations.
In order that a permit be issued it is necéssary to
include a time schedule showing when compliance will
be accomplished for those sources not yet controlled.
Commanding Officer, U.S. Army
Page Two
June 1, 1972
Among the sources that should be imeluded in the
permit application are incinerators, indirect heat ex-
50
changers and any process operations, such as stone
crushing and hot mix asphalt plants.
In view of the above you are requested to submit
.m application with all pertinent data on or before
\ugust 31, 1972.
If you have any questions, feel free to contact this
office.
Sincerely,
/s/ Samuel M. Murphy
Engineering Program
SMM :ce
i¢nclosures
KENTUCKY
AIR POLLUTION CONTROL COMMISSION
275 EAST MAIN STREET
FRANKFORT, KENTUCKY 40601
IF. E, Gartrell, Dr. P. H.
Research and Development
Tennessee Valley Authority
Chattanooga, Tennessee 37401
Dear Dr. Gartrell:
This is to acknowledge your letter of August 14,
1972, concerning TVA’s policy regarding the securing
of state air pollution control permits and compliance
with applicable sulfur dioxide emission standards.
It is regrettable that TVA at this late date main-
tains an official policy of ignoring state legal environ-
mental requirements in light of what is, in our view,
51
explicit language in the Clean Air Act (As Amended )
and Executive Order 11507 issued by President Nixon
on February 4, 1970. We are aware that Alabama ;
recent action to force TVA is comply with similar re-
quirements in that state, and discussions are presently
being held with our Attorney General’s Office to de-
termine whether or not Kentucky may follow a simil:.r
course.
Regarding your request for an extension of tle
regulatory deadline for submittal of an acceptable
sulfur dioxide control strategy, on or before January
1, 1973, we will be im a better position to answer your
request following a review of your proposed strategy
as to its adequacy and enforceability. The Commi<-
sion meets next on October 17, 1972, if possible, we
will attempt to make this an Agenda item and reac!
a definite position at that time.
The question of liability for proper coal refuse
disposal im compliance with Commission regulation-,
appears to be as you state with the Peabody Coal Com-
pany. However, this question is being referred to our
attorneys for further review. If any diversion with
your position is identified, that will be brought to your
attemtion.
Sincerely yours,
/s/ Frank P. Partee
Frank P. Partee, Director
Kentucky Air Pollution Contro!
Commission
FPP :as
Enclosure
52
TENNESSEE VALLEY AUTHORITY
CHATTANOOGA, TENNESSEE 37401
August 14, 1972
Mr. Frank Partee, Director
Kentucky Air Pollution Control Commission
275 East Main Street
Frankfort,Kentucky 40601
Dear Mr. Partee:
With regard to the air contaminant source permit ap-
plication forms that your staff sent us on July 13,
1972, it is our view that TVA, as a Federal agency, is
not required to secure state permits in order to con-
tinue carrying out its operations and functions under
the TVA Act, and it would accordingly not be ap-
propriate for it to apply for permits. We are, however,
anxious to cooperate with the State of Kentucky in
the attainment of its declared air quality goals. We
are therefore pleased to supply you with the same
emission data and other information for TVA’s Para-
dise and Shawnee power plants which your permit
application forms are designed to elicit from appli-
cants who are required to secure permits in order to
continue their operations. For your convenience in
utilizing the information we are supplying it on the
APC permit forms even though, as indicated above,
by using such forms we are not thereby applying for
the issuance of permits. I shall be glad to answer any
questions you may have concerning this position.
TVA is currently studying and evaluating possible
53
alternative control measures which we might apply at
those TVA operations in Kentucky where emissions
now exceed the emission standards contained in the
Kentucky air pollution control regulations. We antici-
pate completing our plans and schedules for controll-
ing particulate emissions by October 9, 1972. We will
supply you with the copies thereof which we will be
glad to discuss if you so desire.
On the other hand, meeting Kentucky’s standards with
respect to sulfur dioxide emissions presents a more dif-
ficult problem. As you know, proven technology is
not available to provide effective sulfur dioxide con-
trols for large power plants and supplies of low sul-
fur fuels are presently not available to TVA in ade-
quate ~ quantities. The Environmental Protection
Agency has recognized this state of affairs in the May
31, 1972, Federal Register. Although TVA is in the pro-
cess of locating sources of low sulfur coal and will
continue to carry out its extensive research program
on the removal of sulfur dioxide from stack gases, it
will be unable to submit a meaningful emission control
plan for sulfur dioxide by January 1, 1973. As a con-
sequence, TVA intends to submit an alternate control
strategy to meet Kentucky’s ambient air quality stand-
ards for sulfur dioxide. Such an alternate control
strategy will be submitted by a date which will allow
a reasonable time for the Commission to review the
strategy and make recommendations and for TVA to
make any necessary modifications before January 1,
1973. Although the details of our strategy are not yet
available, we are enclosing a plan of the proposed
ambient air quality monitoring which will be used to
54
demonstrate that our strategy will achieve and main-
tain the applicable ambient air quality standards.
Should the Commission be unable to approve TVA’s
strategy before January 1, we hereby respectfully re-
quest an extension of the January 1 deadline until
such time as TVA is able to satisfy the Commission
with an acceptable alternate control strategy. Please
advise us promptly if such an extension would be
granted, as this information is essential in order for:
us to determine whether we must seek an exception
from the Kentucky Standards pursuant to the Federal
Clean Air Act.
TVA owns the mineral rights to several coal mines in
Kentucky; however, only the Camp _ Breckenridge
property in Union County is presently being mined.
Since this mining is conducted by the Peabody Coal
Company pursuant to the terms of a standard type
coal lease which provides for a royalty to TVA based
on tonnage mined, it is our view that Peabody is re-
sponsible for reporting any coal refuse piles. There-
fore, no coal refuse information is supplied herein.
If we can help in any way by providing additional in-
formation at this time on our operations in Kentucky,
either in written form or in conferences with you or
menibers of your staff, please let us know.
Sincerely yours,
/s/F. E.- Gartrell
F. FE. Gartrell, Dr. P. H.
Director of Environmental
Research and Development
Enclosures
55
“EXHIBIT E”
October 17, 1973, Directive from Jack E. Ravan, Ad-
ministrator, Region IV, Environmental Protection
Agency.
ROUTING AND TRANSMITTAL SLIP
1 TO (Name, office symbol or location)
MR. FRANK P. PARTEE
REMARKS
The attached letter has been set to Command
Levels and Key Environmental Officials with the
various Federal installations and agencies within
this Region.
If you have any questions, please contact Mr. A,
G. Linton as indicated in the letter.
/s/ Gene B. Welsh
Gene B. Welsh
Director
Air and Water Programs
Division
Do NOT use this form as a RECORD of approvals,
concurrences, disapprovals, clearances, and_ similar
actions.
FROM (Name, office symbol or location)
EPA, Region IV, Atlanta, Georgia
DATE
10/30/72
PHONE
404-526-3043
OPTIONAL FORM 41 *GPO: 1972 O- 460-910
August 1967
GSA FPMR (41CFR) 100-11 206
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
1421 Peachtree St., N.E., Atlanta, Georgia 30309
October 17, 1972
SUBJECT: Federal Agencies Compliance with Sec-
tion 118 of Clean Air Act and Executive
Order 11507
Dear Sir:
With reference to Section 118 of Clean Air Act, as
amended, Section 21 of the Federal Water Pollution
Control Act, as amended, and Executive Order 11507,
Federal facilities have a responsibility to cooperate
with EPA and state pollution control efforts and pro-
grams. The purpose of this letter is to advise you of
these responsibilities and to recommend a course of
action that will facilitate mutual Federal/State agree-
ment on air and water pollution control compliance
measures.
57
It is clear that Section 118 of the Clean Air Act re-
quires Federal facilities to meet state air quality stand-
ards and emission limitations and to comply with dead-
lines established in the approved state air implementa-
tion plans. As you are aware, there has been consider-
able discussion regarding appropriate procedural me-
chanisms for obtaining Federal agency commitments
to install air pollution abatement equipment and to
make progress reports demonstrating adherence to
periinent standards, emission limitations and compli-
ance schedules. These discussions have also addressed
the extent to which Section 118 requires Federal agen-
cies to comply with state and local procedural require-
ments for reports, permits, registration, inspection
and data.
Our advice on this matter, at this time, is to provide
the data specifically requested by the states so they
may make a determination as to: (1) the facilities
compliance with the approved state air implementa-
tion plans and (2) the abatement action facilities must
take in order to meet implementation plan require-
ments.
We recommend that each Federal facility under your
jurisdiction which has an air pollution discharge should
initiate immediate discussion, if it has not already
been accomplished, with the respective states, regard-
ing development of a compliance schedule as required
by their implementation plan. This compliance sche-
dule should include the standards or emission limita-
tions which must be met, the abatement equipment to
be constructed, corrective measures to be taken, and
58
the timetable for taking these actions in order to meet
established implementation plan deadlines. Your
“gency will be obligated under the compliance schedule
to conduct monitoring and to keep operating records.
\Vhenever a state makes a reasonable and specific re-
(uest to review operating records, we recommend that
your agency adopt an open-door policy by providing
ihe requested data. We do not, however, encourage
the submission of continuous reporting of routine
operating data except on an “as needed” basis.
if a state uses a registration procedure to obtain dis-
charge information, Federal facilities should file regi-
tration forms. However, we do not believe that Fed-
eral agencies are required to apply for state operating
permits or to regiser their discharge or emission if
the registration process is in effect a permit applica-
tion that will lead automatically to issurance of a state
permit or license. The registration and other needed
data should voluntarily be provided to the states by
your agency. Our aim is to encourage Federal agen-
cies to provide the states with all the information re-
quired to assess compliance of pollution sources with
standards, emission and discharge limitations and the
needs for additional abatement measures.
With respect to reporting of waste water treatment
operations, we would like to make the same distine-
tion as described above in regard to data needed to
determine if the facility is required to install addition-
al abatement equipment or take other abatement mea-
sures as compared to routine operating data. If a state
59
or EPA has reasons to believe that a waste water trea!
ment facility is not adequate to meet water qualit y
standards or is not being operated effectively, a speci :
fic request for information will be made. The facilit\
should then provide, for a designated period of tim-.
operating or monitoring data needed to complete th:
particuiar study and develop recommendations for a!.
ditional remedial action.
We hope this advice and guidance will be benefici:.!
to Federal facilities and aid them to respond to tlhe
immediate requirements of the Clean Air Act, as amen:-
ed, and the Federal Water Pollution Control Act, is
amended. If you should have any comments or que-
tions regarding this subject matter, please contact Mr.
Arthur G. Linton, Chief, Federal Activities Office.
(telephone number 404-526-5253).
Sincerely yours,
/s/ Jack E. Ravan
Jack E. Ravan
Regional Administrator
60
Filed Jan. 18, 1973
[Title Omitted in Printing]
MOTION
1. Pursuant to the laws of the Commonwealth of
Virginia, the Virginia Air Pollution Control Board,
an agency of the Commonwealth, is charged with the
duty of abating, controlling and prohibiting air pollu-
tion throughout the Commonwealth. In the execution
of its du.y, the Virginia Air Pollution Control Board
has promulgated rules and regulations which, unlike
those of the Commonwealth of Kentucky, require the
issuance of a permit only for new sources of air pol-
lutants, inciuding modifications of existing sources.
2. Existing sources of emission of air pollutants
of a cer.ain magnitude were to be registered with the
Virginia Air Pollution Control Board and thereafter,
plans for the control of emissions in excess of allow-
able limitations were to be submitted to the Board for
each such existing source.
3. At present, there are within the Common-
wealth of Virginia numerous sources of air pollutants
owned and operated by, or for the benefit of, the
Uni.ed States including, but not limited to, facilities
of the Department of the Navy, the Department of the
Army, the Department of the Air Force and the Gen-
eral Services Administration.
4. At this time, the United States is not believed
to be engaged in any activity in the Commonwealth
which would require the prior issuance of a permit by
61
the Virginia Air Pollution Control Board; however,
the Commonwealth asserts a vital interest in the is-
sues presented by this action and its participation
herein as amicus curiae may be of assistance to the
Court. Therefore, the Commonwealth moves the Court
for leave to appear as amicus curiae and to make such
arguments and tender such briefs as are appropriate.
COMMONWEALTH OF
VIRGINIA
By /s/ Andrew P. Miller
Attorney General
/s/ C. Tabor Cronk
Assistant Attorney General
Andrew P. Miller
Attorney General
C. Tabor Cronk
Assistant Attorney General
Supreme Court Building
1101 East Broad Street
Richmond, Virginia 23219
[Certificate of Service Omitted in Printing]
Rendered — 2-5-73
Entered: 2-5-73
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
COMMONWEALTH OF KENTUCKY, Ex Rel.
Ed W. Hancock, Attorney General
of Kentucky Plaintiff,
v. CIVIL ACTION
NO. 7480-G
WILLIAM D. RUCKELSHAUS,
Administrator of the
Environmental Protection
Agency, et al., Defenants.
ORDER
Citing its interest in the issues before the Court
sn this case. the Commonwealth of Virginia has, by
its Attorney General, moved the Court to exercise its
discretion to permit the Commonwealth to appear here-
in as amicus curiae.
In consideration of the Commonwealth’s motion,
and deeming ii proper to do so, it is hereby ordered
that the Commonwealth be, and hereby is permitted to
appear as amicus curiae and to make such arguments
and tender such briefs as are appropriate.
Enter this Order this
3th day of February, 1973.
/s/ James F. Gordon
JUDGE
/s/ Barbara D. Spain
Filed March 5. 1973
[Title Omitted in Printing]
MOTION TO DISMISS OR
IN THE ALTERNATIVE
FOR SUMMARY JUDGMENT
Defendants Tennessee Valley Authority Aubr
J. Wagner, Lynn Seeher. J. L. McPherson. and T E
Cavaniss move the Court to dismiss the action = to
them on the grounds that (1) the complaint fails to
state a claim against said defendants upon which relief
can he granted. (2) the action cannot be maintained
by the State Attorney General without the request
and consent of the Kentucky Air Pollution Control
Commission. and (3) the action cannot he maintained
as a class action.
Oot
In the alternative, said defendants move for sum-
mary judgment in their favor on the ground that the
pleadings, together with the affidavit of Lynn Seeber,
hereto annexed as Exhibit 1, show that there is no
genuine issue as to any material fact and that defend-
ants are entitled to judgment as a matter of law.
Said defendants request that this motion be set
for oral hearing at a time convenient to the Court.
Respectfully submitted,
/s/ Robert H. Marquis
General Counsel
Tennessee Valley Authority
Knoxville, Tennessee
/s/ Herbert S. Sanger, Jr.
Associate General Counsel
Beauchamp E. Brogan
Assistant General Counsel
/s/ Justin M. Schwamm
Attorneys for Defendants Ten-
nessee Valley Authority, Aubrey
J. Wagner, Lynn Seeber, J. L.
McPherson, and J. T. Cavaniss
{Certificate of Service Omitted in Printing]
[Title Omitted in Printing]
EXHIBIT 1
AFFIDAVIT OF LYNN SEEBER
STATE OF TENNESSEE
, ss
COUNTY OF KNOX |
Lynn Seeber, being first duly sworn, deposes and
Says:
I am the General Manager of the Tennessee
Valley Authority (TVA) and I have occupied that
position since March 1, 1970. I was graduated from
the University of Tennessee with a B.S. degree in
industrial management in 1949, and a J.D. degree in
1951. While in Law School at the University, I was
Editor-in-Chief of the Tennessee Law Review and
a member of the Order of the Coif. I am licensed to
66
practice law in the State of Tennessee. I was em-
ployed by TVA as an attorney in the Division of Law
from 1952 unl 1967, when I was appointed Director
of the Division of Reservoir Properties. Later in
1967 | returned io the Division of Law as Solicitor.
In 1969 | was appointed Assistant General Manager
and served in that capacity until March 1, 1970, when
] was appointed General Manager.
As General Manager I am the principal TVA
administrative officer and I have responsibility for
the coordination and execution of programs, policies
and decisions adopied or approved by the TVA Board
of Directors. I review proposed TVA actions having
major policy implications. I have personal knowl-
edge of the matters herein set forth.
In August and October 1972, TVA transmitted
to the State of Kentucky information concerning its
Paradise and Shawnee Steam Plants in Kentucky,
the emissions therefrom, and plans and schedules for
reducing and controlling such emissions. The in-
formation was supplied on the permit forms pro-
vided hy the State, but in the letters transmitting the
forms it was made clear that TVA did not consider
itself hound to secure permits, and that TVA was not
thereby applying for the issuance of permits. Copies
of the letters of transmittal are attached hereto as
Exhibits A and B.
By leiter dated November 10, 1972, the Commis-
sion wrote me acknowledging the fact that it had re-
ceived the required emission data and other related
67
information concerning TVA’s Paradise and Shawnee
Plants. This letter requested a formal statement of
TVA’'s position on the permit question by December
8, 1972, for consideration by the Commission at its
December meeting of what further steps it might desire
to take. A copy of this letter is attached hereto as
Exhibit C.
On November 29, 1972, after this action was filed,
the Commission wrote me again stating that the At-
torney General had filed the action, and that such filing
was independent of the Commission. The Commis-
sion expressed regret for such action having been taken
before I had a chance to reply to its November 10,
1972, inquiry. A copy of the November 29 letter is
attached hereto as Exhibit D.
Further information on TVA’s emission control
plans and schedules was submitted to the State on
January 19, 1973. A copy of the transmittal letter is
attached as Exhibit E.
TVA received a letter dated October 17, 1972.
from the Environmental Protection Agency (EPA).
the text of which is identical to the one which the Ken-
tucky Air Pollution Control Commission received from)
EPA and which is attached as Exhibit E to plaintiff’.
complaint. A copy of the letter referred to is attache’!
hereto as Exhibit F. This letter sets forth EPA’.
interpretation of certain requirements of section 11°:
of the Clean Air Act and Executive Order 11507, in-
cluding their application to state permit requirements,
as they affect federal agencies. Thereafter TVA re-
ceived a memorandum dated January 26, 1973, from
William D. Ruckelshaus, Administrator of EPA, in
which he affirmed the view taken in the October 17,
1972, letter, stating, in pertinent part:
It is EPA’s view, expressed last year, that Fed-
eral facilities are not required to apply for State
operating permits.
A copy of the January 26, 1973, memorandum in here-
to attached as Exhibit G. The procedure outlined
by EPA in Exhibits F and G, with the exception of
signing the permit forms as recommended in Exhibit
G, has been followed by TVA in its dealings with the
State of Kentucky concerning TVA’s obligations un-
der section 118 of the Clean Air Act. The Commis-
sion has not at any time informed TVA that the in-
formation submitted by TVA is unsatisfactory or in
any way insufficient to permit the Commission to
assess TVA’s emissions or its control strategies and
compliance schedules. The State of Kentucky has
never informed TVA that it desires verification of the
data submitted to it by TVA. TVA will supply such
verification if the State of Kentucky deems it neces-
sary.
/s/ Lynn Seeber
Lynn Seeber
[Jurat Omitted in Printing]
69
Exhibit A
August 14, 1972
Mr. Frank Partee, Director
Kentucky Air Pollution Control Commission
275 East Main Street
Frankfort, Kentucky 40601
Dear Mr. Partee:
With regard to the air contaminant source permit ap-
plication forms that your staff sent us on July 13,
1972, it is our view that TVA, as a Federal agency, is
not required to secure state permits in order to con-
tinue carrying out its operations and functions under
the TVA Act, and it would accordingly not be ap-
propriate for it to apply for permits. We are, how-
ever, anxious to cooperate with the State of Kentucky
in the attainment of its declared air quality goals. We
are therefore pleased to supply you with the same
emission data and other information for TVA’s Para-
dise and Shawnee power plants which your permit ap-
plication forms are designed to elicit from applicants
who are required to secure permits in order to con-
tinue their operations. For your convenience in utiliz-
ing the information we are supplying it on the APC
permit forms even though, as indicated above, by us-
ing such forms we are not thereby applying for the
issuance of permits. I shall be glad to answer any
questions you may have concerning this position.
TVA is currently studying and evaluating possible al-
ternative control measures which we might apply at
70
those TVA operations in Kentucky where emissions
now exceed the cmission standards contained in the
Kentucky air pollution control regulations. We an-
ticipate completing our plans and schedules for con-
trolling particulate emissions by October 9, 1972. We
wil’ supply you with the copies thereof which we will
be glad to discuss if you so desire.
On the other hand, meeting Kentucky's standards with
respect to sulfur dioxide emissions presents a more
difficult problem. As you know, proven technology is
not available to provide effective sulfur dioxide con-
trois for large power plants and supplies of low sulfur
fuels are presently not available to TVA in adequate
quantities. The Environmental Protection Agency
has recognized this state of affairs in the May 31, 1972,
Federal Kegister. Although TVA is in the process of
locating sources of low sulfur coal and will continue
to carry out its extensive research program on the re-
moval of sulfur dioxide from stack gases, it will be
unable to submit a meaningful emission control plan
for sulfur dioxide by January 1, 1973. As a _ conse-
quence, T\.\ intends to submit an alternate control
strategy io meet Kentucky’s ambient air quality stand-
ards for suifur dioxide. Such an alternate control
strategy will be submitted by a date which will allow a
reasonable time for the Commission to review the
strategy and make recommendations and for TVA to
make any necessary modifications before January 1,
1973. Although the details of our strategy are not
vet available, we are enclosing a plan of the proposed
aibient air quality monitoring which will be used to
71
demonstrate that our strategy will achieve and main-
tain the applicable ambient air quality standards.
Should the Commission be unable to approve TVA’s
strategy before January 1, we hereby respectfully re-
quest an extension of the January 1 deadline until such
time as TVA is able to satisfy the Commission with
an acceptable alternate control strategy. Please ad-
vise us promptly if such an extension would be grant-
ed, as this information is essential in order for us to
determine whether we must seek an exception from
the Kentucky Standards pursuant to the Federal Clean
Air Act.
TVA owns the mineral rights to several coal mines
in Kentucky; however, only the Camp Breckenridge
property in Union County is presenily being used.
Since this mining is conducted by the Peabody Coal
Company pursuant to the terms of a standard type coal
lease which provides for a royalty to TVA based on
tonnage mined, it is our view that Peabody is respon-
sible for reporting any coal refuse piles. Therefore,
no coal refuse information is supplied herein.
If we can help in any way by providing additional
information at this time on our operations in Ken-
tucky, either written form or in conferences with you
or members of your staff, please let us know.
Sincerely yours,
/s/ F. E. Gartrell, Dr. P.H.
Director of Environmental
Research and Development
Enclosures
72
Exhibit B
October 13, 1972
Mr. Frank P. Partee, Technical Director
Kentucky Air Pollution Control Commission
275 East Main Street
Frankfort, Kentucky 40601
Dear Mr. Partee:
As provided for in AP-1, section 11(2), Kentucky Air
Pollution Control Commission Regulations, we are
sending vou TVA’s control plan and schedule for
achieving compliance with particulate emission stand-
ards at TVA’s Paradise and Shawnee Steam Plants.
In reference to your letter of August 31, 1972, we also
regret that TVA and the Air Pollution Control Com-
mission do not agree on whether TVA, as a federal
agency, is obligated to obtain state permits. However,
we sincerely hope that the disagreement of our two
agencies on this legal issue will not stand in the way
of our continued cooperation to achieve the air quality
goals of the Commonwealth of Kentucky. For its part,
T\ \ will continue to comply with the standards of
INentucky’s Air Pollution Control] Commission Regu-
lations and to provide the Commission with all appro-
priate information. In regard to the permit question,
you may be interested in examining a copy of the
papers filed in the case of People v. Stastny, Civ. No.
72-112-WPC (C.D. Cal., July 17, 1972), being sent to
you under separate cover.
73
If you have any questions concerning the control plan
and schedule, please let me know.
Sincerely yours,
/s/ F. E. Gartrell, Dr. P. H.
Director of Environmental
Research and Development
Exhibit C
KENTUCKY
AIR POLLUTION CONTROL COMMISSION
275 East Main Street
FRANKFORT,KENTUCKY 40601
November 10, 1972
Mr. Lynn Seeber
General Manager
Tennessee Valley Authority
411 New Sprankle Building
Knoxville, Tennessee 37902
Dear Mr. Seeber:
On July 13, 1972, the Commission forwarded to Dr.
Larry Montgomery, Air Quality Branch, TVA, Mussel
Shoals, Alabama a standard form for a permit to operate
an air contaminant source in Kentucky. (Shawnee
Power Plant, Paradise Power Plant). On August 14,
1972, a response was received which gave the required
emission data and other related information, but con-
tained remarks stating TVA “is not required to secure
74
state permits” and is “not thereby applying for the
issuance of permits.”
Accordingly, at its October 17, 1972, meeting the Com-
mission moved to do two things: (1) to appeal to your
office as the highest icentifiable federal authority di-
rectly responsible for the named facility’s operation and
solicit your cooperation, and (2) to request advice from
Mr. Wiliam E. Ruckelshaus, Administrator, U.S. En-
vironmen.al Protection as to his agency’s intent on
achieving compliance by federal facilities with appli-
cable state air pollution regulations.
You are probably aware that Section 110 of the Clean
Air Act (42 U.S.C. 1857 et seq) requires all states to
develop an implementation plan to attain and maintain
national goals for air quality. The plans are anchored
in the premise of eliminating air pollution at its source
through the imposition of discharge limits. Definite
timeframes were imposed by Congress in the Act to
complete source control programs. In Kentucky, the
legal mechanism for accomplishing these actions is
through the issuance of permits to construct and to
operate air pollution sources, which permits embody,
the time schedule required to bring each source into
compliance. Section 118 of the Clean Air Act states
clearly that:
Mr. Lynn Seeber
Page Two
November 10, 1972
“Each department, agency, and instrumentality of
the executive, legislative and judicial branches of
75
the Federal Government (1) having jurisdiction
over any property or facility, or (2) engaged in
any activity resulting, or which may result, in the
discharge of air pollutants, shall comply with Fed-
eral, State, interstate and local requirements re-
specting control and abatement of air pollution to
the same extent that any person is subject to such
requirements.”
Some questions seem to arise as to what was intended
by the word “requirements.” We maintain it relates
not only to the substantive discharge limits, but to ordi-
nary administrative requirements as well, including the
application for and obtaining of a state permit to operate
your facility
The Alabama Air Pollution Control Commission re-
cently filed a complaint in the U.S. District Court, Ala-
bama Northern District, to force compliance by federal
facilities in that state with their permit requirements.
The outcome of that action will undoubtedly clarify
what federal facilities must do to comply with all State
Implementation Plans. Before our Commission would
join in such precipitious action, we would hope that all
agencies such as yours would cooperate in a spirit of
federa] leadership as directed by President Nixon in
his Executive Order No. 11507, issued February 4, 1970.
You might be interested to know that some federal
agencies in Kentucky have accepted state permits. <A
consistent federal response is necessary. Certainly that
response should be no less than that expected from sim-
ilar non-federa] facilities in the Commonwealth.
We are returning the first two sheets of the application
76
form for completion of Items 6 and 12. Your full coop-
eration is earnestly solicited. We would appreciate re-
ceiving your response no later than Friday, December
8, 1972, so that the Commission can consider what fur-
ther action it may desire to take at its December
meeting.
Sincerely yours,
/s/ Frank P. Partee, Director
FPP /ce Frank P. Partee, Director
Exhibit D
COMMONWEALTH OF KENTUCKY
DEPARTMENT OF HEALTH
Frankfort
Wendell H. Ford William P. McElwain, M.D.
Governor Commissioner
November 29, 1972
Mr. Lynn Seeber
General Manager
Tennessee Valley Authority
411 New Sprankle Building
Knoxville, Tennessee 37902
Dear Mr. Seeber:
Since writing to you on November 10, 1972, con-
cerning lack of compliance by federally owned facili-
ties with Kentucky air pollution control requirements,
the Attorney General here filed a complaint in the
77
United States District Court for the Western District
of Kentucky (Louisville) on the same question.
This action was taken independent of the Com-
mission, and the decision of whether or not to pursue
a formal legal action on this matter is now obviously
out of our hands. I regret that such action has been
taken before the benefit of your response to our earlier
inquiry.
Sincerely yours,
/s/ William P. McElwain
William P. McElwain, M.D.
Chairman
Kentucky Air Pollution
Control Commission
Exhibit E
January 19, 1973
Mr. Frank P. Partee, Director
Division of Air Pollution
Department of Natural Resources and
Environmental Protection
275 East Main Street
Frankfort, Kentucky 40601
Dear Mr. Partee:
As provided for in APC-1, Section 1(1)(b) of the
Kentucky Air Pollution Control Regulations, we are
sending you TVA’s proposed alternate sulfur dioxide
control strategies for the Paradise and Shawnee power
78
plants and request your approval thereof. As explained
in the statements, also enclosed, there are no feasible
means for TVA to meet Kentucky's sulfur dioxide
emission standard, which will be applicable for these
two plants if the proposed alternate control strategies
are not approved. However, such standard is not nec-
essary to meet the sulfur dioxide ambient standards
that have been established to fully protect public
health and welfare from any known or anticipated
effect of sulfur dioxide. Neither is the emission stand-
ard necessary to meet the requirements of the Clean
Air Act for existing installations.
On October 13, 1972, TVA forwarded to you a control
plan and schedule for achieving compliance with par-
ticulate emission standards at Paradise and Shawnee
power plants. Since that time we have developed more
detailed plans and schedules for achieving compliance
with the particulate emission standards and _ these
plans are also enclosed.
While all of the control plans and schedules reflect
the best engineering decisions which can be made at
the present time, better solutions for meeting the air
qualiiy standards may be devised in the future with
additional engineering work. We will, of course no-
tify you promptly of any intended changes. In addi-
tion, nothing contained in the plans should be con-
strued as a waiver of any right to pursue any alterna-
tive which may be open to TVA under the Clean Air
Act or any other applicable law.
If we can help in any way by providing additional
79
information, either in written form or in conferences
with you or members of your staff, please let me know.
Sincerely yours,
/s/ F. E. Gartrell, Dr. P.H.
Director of Environmental
Planning
Enclosures Exhibit F
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
1421 Peachtree St., N.E., Atlanta, Georgia . .309
October 17, 1972
Dr. F. E. Gartrell
Director of Environmental Research and Development
Tennessee Valley Authority
720 Edney Building
Chattanooga, Tennessee 37401
SUBJECT: Federal Agencies Compliance with Sec-
tion 118 of Clean Air Act and
Executive Order 11507
Dear Sir:
With reference to Section 118 of Clean Air Act, as
amenled, Section 21 of the Federal Water Pollution
Control Act, as amended, and Executive Order 11507,
Federal facilities have a responsibility to cooperate
with EPA and state pollution contro] efforts and pro-
grams. The purpose of this letter is to advise you of
80
these responsibilities and to recommend a course of
action that will facilitate mutual Federal /State agree-
ment on air and water pollution control compliance
measures.
It is clear that Section 118 of the Clean Air Act re-
quires Federal facilities to meet state air quality
standards and emission limitations and to comply
with deadlines established in the approved state air
implementation plans. As you are aware, there has
been considerable discussion regarding appropriate
procedural mechanisms for obtaining Federal agency
commitments to install air pollution abatement equip-
ment and to make progress reports demonstrating ad-
herence to pertinent standards, emission limitations
and compliance schedules. These discussions have
also addressed the extent to which Section 118 re-
quires Federal agencies to comply with state and local
procedural requirements for reports, permits, regis-
tration, inspection and data.
Our advice on this matter, at this time, is to provide
the data specifically requested by the states with the
approved state air implementation plans and (2) the
abatement action facilities must take in order to meet
implementation plan requirements.
We recommend that each Federal facility under your
jurisdiction which has an air pollution discharge
should initiate immediate discussion, if it has not al-
ready been accomplished, with the respective states,
regarding development of a compliance schedule as
required by their implementation plan. This compli-
BEST COPY AVAILABLE
8}
ance schedule should include the standards or emis-
sion limitations which must be met, the abatement
equipment to be constructed, corrective measures to
be taken, and the timetable for taking these actions
in order to meet established implementation plan
deadlines. Your agency will be obligated under the
compliance schedule to conduct monitoring and to
keep operating records. Whenever a state makes a
reasonable and specific request to review operating
records, we recommend that your agency adopt an
open-door policy by providing the requested data. We
do not, however, encourage the submission of contin-
uous reporting of routine operating data except on an
“as needed” basis.
If a state uses a registration procedure to obtain dis-
charge information, Federal facilities should file regis-
tration forms. However, we do not believe that Fed-
eral agencies are required to apply for state operating
perniits or to register their discharge or emission if
the registration process is in effect a permit applica-
tion that will lead automatically to issuance of a state
permit or license. The registration and other needed
data should voluntarily be provided to the states by
your agency. Our aim is to encourage Federal agen-
cies to provide the states with all the information re-
quired to assess compliance of pollution sources with
siandards, emission and discharge limitations and the
needs for additional abatement measures.
With respect to reporting of waste water treatment
operations, we would like to make the same distinc-
tion as described above in regard to data needed to
8&2
determine if the facility is required to install addi-
tional abatement equipment or take other abatement
measures as compared to routine operating data. If
a state or EPA has reasons to believe that a waste
water treatment facility is not adequate to meet water
quality standards or is not being operated effectively,
a specific request for information will be made. The
facility should then provide, for a designated period
of time, operating or monitoring data needed to com-
plete that particular study and develop recommenda-
tions for additional remedial action.
We hope this advice and guidance will be beneficial
to Federal facilities and aid them to respond to the im-
mediate requirements of the Clean Air Act, as amend-
ed, and the Federal Water Pollution Control Act, as
amended. If you should have any comments or ques-
tions regarding this subject matter, please contact Mr.
Arthur G. Linton Chief, Federal Activities Office,
(telephone number 404-526-5253).
Sincerely yours,
/s/ Jack E. Ravan
Jack E. Ravan
Regional Administrator
83
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN 26, 1973
Exhibit G
MEMORANDUM FOR THE HEADS OF
DEPARTMENTS AND AGENCIES
SUBJECT: Federal Facility Compliance with Fed-
eral, State and Local Air Quality Stand-
ards and Emission Limitations
I am requesting your assistance on a matter of
considerable urgency relating to implementation of
the Clean Air Act and Executive Order 11507. The
Federal government should be in a position to report
to the President by October 1, 1973 (see attached
Schedule of Events), that all Federal facilities covered
by Federal, State or local air quality standards and
emission limitations are either in compliance or that
corrective action is proceeding in accordance with an
approved compliance schedule. Further, we _ should
also be in a position to determine that funds to initiate
construction of the necessary pollution prevention and
abatement projects have been requested in prior years
or will be requsted in the FY 1975 budget or as soon
as possible thereafter. Planning should be underway,
or should commence immediately, in order to meet
the FY 1975 budget deadlines. To achieve this neces-
sary goal, may I request your assistance in accomplish-
ing the following:
1. Notify your facilities to contact immediately
84
the appropriate State air pollution control
agency in order to provide that agency with
sufficient data to allow it to make a determina-
tion of facility and source compliance or non-
compliance. I realize that in many cases this
action is already complete or underway. I be-
lieve, however, that an additional initiative is
needed to ensure 100% completion of the fol-
lowing actions in a timely manner:
For sources not in compliance, a compli-
ance schedule should be negotiated with
the State. EPA Regional Administrators
will assist in resolving difficulties should
they arise.
It is EPA’s view, expressed last year, that
Federal facilities are not required to apply
for State operating permits. However, if
a State’s compliance schedule process is
based on a permit system, I would ask that
your facilities provide the State with the
required information on its registration
form. TI believe the form should be signed
to verify the data, but with an appropriate
disclaimer to make it clear that the facili-
ty is not applying for a permit. (If you
have instructed your facilities to apply for
a State permit, the disclaimer would, of
course, be unnecessary.) As you know,
there are several court cases now underway
to determine the legality of State permits
for Federal facilities. I believe that while
85
the courts resolve this issue the Federal
government should proceed with great
urgency to ensure that every source in vio-
lation of air quality standards and emission
limitations is covered by an approved com-
pliance schedule and that resources and
funds are marshalled in order to adhere to
these schedules
2. A listing, by State, of those facilities or air pol-
lutant sources which are not in compliance and
have not been covered by a State approved
schedule as of December 31, 1972.
3. A. listing, by State, of those facilities or air
pollutant sources that have been determined by
the States to be in compliance as of March 31,
1973.
4. A listing, by State, of those facilities or air pol-
lutant sources that will be covered by a State
approved compliance schedule as of March 31,
1973.
May I request that you provide listings 3 and 4
cited above to my Office of Federal Activities by March
31, 1973, and listing 2 to the same office by February
15, 1973. I further request that you notify your fa-
cilities as soon as possible on the urgency of cooperat-
ing with the States and EPA in arriving at approved
compliance schedules.
To keep informed all participants involved in de-
veloping approved compliance schedules for Federal
facilities,
Filed March 16, 1973
[Title Omitted in Printing]
MOTION TO DISMISS
Defendants William D. Ruckelshaus, Admini-
strator, Environmental Protection Agency; Jack E,.
Ravan, Administrator, Region IV; Environmental
Protection Agency; Environmental Protection Agen-
cy: General Creighton Abrams, Chief of Staff, United
States Army; Robert F. Froehlke, Secretary, Depart-
ment of the Army; Major General W. R. Dosbory,
Commanding General, United States Army Armor
Center and Fort Knox; Major General John Cushman,
Commanding General; Colonel Ernest A. Vuley, Jr.,
Commanding Officer; Department of the Army; James
87
R. Schlesinger, Chairman, Board of Directors, Atomic
Energy Commission; Robert FE. Hollingsworth,
General Manager, Atomic Energy Commission; B.
W. Stiller, Manager, Paducah Gaseous Diffusion
Plant, Atomic Energy Commission; Union Carbide
Corporation; and Atomic Energy Commission move
this Court, pursuant to Rule 12(b) of the Federal
Rules of Civil Procedures, to dismiss the Complaint
filed herein for lack of jurisdiction over the defend-
ants and over the subject matter of the suit, and for
failure to state a claim upon which relief can be granted.
WHEREFORE, the above-named Defendants re-
quest this Court to Dismiss the Compiaint filed by
Plaintiff.
The defendants request that this motion be set
for oral argument at a time convenient to the court.
Respectfully submitted,
KENT FRIZZELL
Assistant Attorney General
Land and Natural Resources
Division
MARTIN GREEN
Chief, Pollution Control Section
By: /s/ George J. Long
GEORGE J. LONG
United States Attorney
JAMES A. GLASGOW
Attorney, Department of
Justice
Washington, D. C. 20530
202-739-2808
Attorneys for Defendants
Attachments:
EXHIBIT NO.
EXHIBIT NO.
EXHIBIT NO.
EXHIBIT NO.
EXHIBIT NO.
EXHIBIT NO.
OW & WA
[Certificate of Service Omitted in Printing]
[Title Omitted in Printing]
Exhibits 1 - 6
AFFIDAVIT OF ROBERT J. HART
Before me, Charles C. McNabb, Jr., as Notary
Public in and for the State of Tennessee, County of
Anderson, appeared Robert J. Hart, with whom I am
personally acquainted, and who being duly sworn
made affidavit as follows:
1. That he is Robert J. Hart, whose place of resi-
dence is 120 Newell Lane, Oak Ridge, Tennessee; that
he is an employee of the Atomic Energy Commission,
an agency of the United States of America; that his
official position with the Atomic Energy Commission
is Manager, Oak Ridge Operations Office; that the
Paducah Gaseous Diffusion Plant, referred to in the
90
suit designated as Civil Action No. 7480-G, filed by
the Commonwealth of Kentucky against the United
Sta.es Atomic Energy Commission, in the Federal
District Court at Louisville, Kentucky, is a facility
owned by the United States of America as represented
by the Atomic Energy Commission and under his
management, control and jurisdiction; and that he is
the Contracting Officer for the Government of the
cost-type contract between Union Carbide Corpora-
tion and the United Siates of America, as represented
by the Atomic Energy Commission (hereinafter re-
ferred to as AEC), under which Union Carbode Corpo-
ration manages, operates and maintains said facility
for the AEC and in accordance with the directions and
instruction of the AEC. Certified true copies of Modi-
fication No. 45 and No. 46 to Contract No. W-7405-
Eng-26 between the United States and Union Carbide
Corporation are attached as a part of this affidavit.
Modification No. 45 is the latest complete rewrite and
updating of the basic contract and prior modifications,
and Modification No. 46 extends the contract term
through June 30, 1973.
2. That the Paducah Gaseous Diffusion facilities
include more than 100 buildings, including four major
gaseous diffusion production buildings, two other
major manufacturing buildings and associated build-
ings for, among other things, plant operation and con-
trol, plant shop and maintenance service, medical and
dispensary services, plant heating and administration.
The facilities are located on a tract of Government-
owned land comprising some 3,670 acres. The Com-
91
mission’s investment for plant and equipment in these
facilities is in excess of $795,000,000. The cost of
operating and maintaining these facilities for the cur-
rent fiscal year ending June 30, 1973, is estimated to
be in excess of $95,000,000. This sum does not include
the cost of feed materials for operation of the gaseous
diffusion plants. Employed at the facility by Union
Carbide Corporation are approximately 1,250 persons
whose work and services are required for safe and ef-
ficient management and operation. AEC employces,
as members of my staff, are physically stationed at the
site for da,-to day surveillance of the operation for the
AEC and general contract administration and program
direction.
3. The purpose of the facility is the enrichment
of uranium in the uranium isotope U-235. This in-
volves the large-scale separation of the isotope U-235
from a chemical compound of uranium (in gascous
form) by the process of gaseous diffusion through
porous barriers. These barriers must contain billions
of holes smaller than two-millionths of an inch, with-
stand a pressure head of at least 15 pounds per square
inch, and cannot be permitted to become enlarged or
plugged up as a result of corrosion or rust coming
from elsewhere in the system or as a result of the
cooling of the gas and its reversion to a solid state.
The separation process involves several thousand stages
in each of which a portion of the gas-uranium }xa-
fluoride (UF*® — diffuses through the porous barriers
and is enriched in U-235.
4. This process requires a continuous and une
92
interrupted supply of electrical and other energy
sources, controlled conditions of ventilation, tempera-
ture and humidity and a continuous and uninterrupted
supply of materials. It involves in each of the several
interconnected plants many miles of piping, many
thousands of pumps and motors, and vast numbers of
intricate electrical and electronic mechanisms to en-
sure proper operation. Electrical energy demand for
the Paducah facility at present is some 16000 mega-
watts of which some 1000 megawatts is supplied by
the Tennessee Valley Authority and some 600 mega-
watts by Electric Energy, Inc. The process system
must be maintained under a negative atmospheric
pressure. It must also be maintained as leakproof as
possible to prevent decomposition of the circulating
gas and damage to the operating equipment. The pro-
cess once initiated must continue on a_ twenty-four-
hour-per-day, seven-day-per-week basis since, among
other things, the gas if permitted to lose temperature
and cool in the system would revert to a solid state
plugging and destroying the production process sys-
tem. This is, of course, a very brief and simple statement
of a very large and complex process operation.
5. The Paducah Gaseous Diffusion facility is a
production facility of the United States as that term
is defined in the Atomic Energy of 1954, and is one
of only three such facilities owned by the United
States and operated to supply the national need for
enriched uranium. The other two such facilities are
located one at Oak Ridge, Tennessee, and the other
near Portsmouth, Ohio. All three facilities are under
93
the Oak Ridge Operations Office of AEC. The three
gaseous diffusion facilities, while identical in many
respects, are operated as a complex with each perform-
ing its portion or part of the overall process of producing
the final product of enriched uranium materials to meet
the needs of the United States for such product for national
defense and peaceful uses of atomic energy such as fuel for
nuclear power plants, medical uses, etc., and to meet the
Nation’s commitments to the “free world” nations for
such material. Assuming continuous operation of the
three at maximum capability and in the most efficient man-
ner, the ability of the complex to meet the above needs is
limited to only a short time period in the future. Thus,
any disruption or slowdown of the process at any of these
plants and reduction of the product produced would be a
matter of serious national consequence.
Further affiant sayeth not.
/s/ Robert J. Hart
Robert J. Hart
Manager
94
Oak Ridge Operations Office
United States Atomic Energy
Commission
[Jurat Omitted in Printing]
Attachments:
1. Modification No. 46 to UCC
Contract No. W-7405-FEng-26
2. Modification No. 46 to UCC
Contract No. W-7405-Eng-26
STATE OF TENNESSEE
COUNTY OF ANDERSON (
AFFIDAVIT OF JEROME F. WING
Before me, Charles C. McNabb, Jr., a Notary
Public in and for the State of Tennessee, County of
Anderson, appeared Jerome F. Wing, with whom I
am personally acquainted, and who being duly sworn
niade affidavit as tollows:
1. That he is Jerome F. Wing, whose place of resi-
95
dence is 714 Florida Avenue, Oak Ridge, Tennessee; that
he is an employee of the Atomic Energy Commission,
an agency of the United States of America; and that
his official position with the Atomic Energy Commission
at Oak Ridge, Tennessee (hereinafter referred to as
AEC) is Chief, Environmerta] Protection Branch of the
Safety and Environmental Control Division, Oak Ridge
Operations Office, AEC.
2. That the Government-owned gaseous diffusion
facility near Paducah, Kentucky, is one of the produc-
tion facilities operated by the AEC and under the juris-
diction of the Oak Ridge Operations Office; that he is
familiar with such facility and the duties and responsi-
bilities of his office encompass the over-all evaluation and
appraisal of the operation of the facility from an environ-
mental standpoint.
3. That the AEC is in full accord with the program
at both the State and national level to abate air and water
pollutants; that AEC, Oak Ridge Operations Office,
directly and through Union Carbide Corporation, the
management and operating contractor at the Paducah
gaseous diffusion facility, has an affirmative program
and a competent professional staff to oversee, monitor
and assure compliance with applicable air and effluent
emission standards, including the air emission standards
of the State of Kentucky, approved by the Environmental
Protection Agency; and that AEC’s and Union Carbide
Corporation’s professional environmental personnel have
for a number of years had and maintained what was
believed to be a cordial and cooperative working relation-
ship with the State of Kentucky’s professional environ-
96
mental personnel regarding both air and effluent emis-
sion sources at the AEC’s Paducah facility.
4. That in 1968 the State transmitted to the operat-
ing contractor its forms for “Registration of Air Conta-
minant Sources” and by letter of July 3, 1968, to the
State, AEC as a matter of comity and cooperation and
using the State’s forms identified the Paducah plant emis-
sion sources and supplied the State with the emission
data from such sources, and invited the State Air Pollution
Control Commission representatives to visit the site for
further discussion and inspection of the plant operation.
5. On June 19, 1970, form APC-57, Registration of
Air Contaminant Sources, was received from the Kentucky
Air Pollution Control Commission relative to the Paducah
gaseous diffusion facility and such form was completed
and returned to the State Pollution Control Commission
on July 2, 1970.
6. By letter dated June 15, 1971, the State transmit-
ted its forms APC-110, Permit Application For Air Con-
taminant Source, relative to the Paducah gaseous diffu-
sion facility. The information requested by these forms
for air emission sources was completed using the State
forms and returned to the State by letter from AEC dated
July 23, 1971. The cover letter advised the State that while
AEC did not consider the Kentucky permit requirements
applicable to the Federal facility, AEC was happy to
supply the information on a comity basis and as demonstrat-
ine the willingness of AEC to cooperate with the State
within the framework of Executive Order 11507.
7. On June 29, 1972, Messrs. William S. Coakley
97
and Larry D. Wynn of the Kentucky Air Pollution
Control Commission visited the Paducah gaseous diffu-
sion facility for a meeting with AEC and Carbide
environmental control staff and to review the air pollu-
tion abatement and monitoring practices relative to the
facility's air emission sources. A number (some six or
seven ) of representative air emission sources were selected,
visited and discussed. In the concluding critique, Messrs.
Coakley and Wynn stated they were “favorably impress-
e! and appeared to be completely satisfied with AEC’s
pollution abatement program and with the data previously
furnished the State.
S. To the best of affiant’s knowledge and belief no
emissions from any emission source at the Paducah gas-
eous diffusion facility exceeds the limitations provided for
in the Kentucky air emission standards; and AEC has
provided the State with air emission data for the Paducah
gaseous diffusion facility emission sources sufficient to
show that AEC is in compliance with the air emission
stundards or limitations of the State of Kentucky for air
eniission sources at such facility, and has supplied all
information and data requested hy the S.ate or otherwise
applicable to an emission source except for process infor-
mation or data on a limited number of sources where
such infori.ation or data is “Restricted Data” and classi-
fied national defense information rclaiing to the plant pro-
duction process which AEC is prohibited from disclosing
to persons who are not authorized to receive such informa-
tion under the Atomic Energy Act of 1954, as amended.
9. While AEC, as an agency of the United States,
does not consider its operation of the Federal facility and
BEST COPY AVAILABLE
o_o =
98
its performance of its Federal functions as subject to the
State’s permit requirements, it does intend and expects to
continue to work closely with the State Air Pollution Con-
trol Commission to enhance the air environment of the
State, to monitor air emission sources at the Paducah
facility and keep records thereon and to furnish such in-
formation and data to the State insofar as national
security and classification requirements will permit, and
to continue to operate the facility so as to comply with the
State’s air emission standards and limitations.
Further affiant sayeth not.
/s/ Jerome F. Wing
Jerome I. Wing, Chief
Environmental Protection
Branch
Oak Ridge Operations Office
United States Atomic
Energy Commission
[Jurat Omitted in Printing]
99
STATE OF TENNESSEE
COUNTY OF ANDERSON f[
SUPPLEMENTAL AFFIDAVIT OF
JEROME F. WING
Before me, Charles C. McNabb, Jr., a Notary Public
in and for the State of Tennessee, County of Anderson,
appeared Jerome F. Wing, with whom I am personally
acquainted, and who being duly sworn made affidavit as
follows:
1. That he is Jerome F. Wing and that his place
of residence and position with the United States Atomic
Energy Commission at Oak Ridge, Tennessee, is the same
as is set out in item 1. of an affidavit sworn to and sub-
scribed before Charles C. McNabb, Jr., on January 30,
1973.
2. That the purpose of this affidavit is to supple-
ment and make more particular item 8. of his affidavit
of January 30, 1973, in which he affirmed that “To the
best of affiant’s knowledge and belief no emissions from
any emission source at the Paducah Gaseous Diffusion
facility exceeds the limitations provided for in the Ken-
tucky air emission standards.”
3. That the AEC Gaseous Diffusion facility at
Paducah, Kentucky, is in the Paducah-Cairo region under
the Kentucky Air Pollution Control Regulations and that
the priority classification of air quality for such region is
Priority | for particulates, Priority 11 for SO* and Priority
III for CO, NO? and OX (HC).
100
4. That the major air emission source of interest
at such facility is the emissions from the Indirect Heat
[exchangers (Steam Plant); that the steam plant contains
three boilers and was originally coal fired; that several
years ago the AEC recognized the difficulty of achieving
SG? and particulate compliance with such a coal-fired plant
and in 1970 as a part of its air environment enhancement
program converted such plant to a natural gas-fired plant
with No. 2 fuel oil as a backup fuel. The stack emissions
contain no particulates and are not visible. There is no
significant sulfur in the primary fuel and the sulfur in
the backup fuel is of a concentration that when burned
ineets the emission limits. This emission source is obvious-
ly in compliance with Kentucky Regulations Nos. A’ J
and ANP-4 on particulates and SO*, The three boilers for
this s.eam plant are existing installations having rated
capacities of less than 300. million B.T.U.’s per hour and
are exempt under Kentucky Regulation AP-7, Control of
Nitrogen Oxides Emissions.
5. That under Kentucky Regulation No. AP-2,
Control of Open Burning, xxxx burning activities are car-
ried on ai the Paducah Gaseous Diffusion facility xxxxx.
6. That two existing incinerators are operated at
the facility. The C-200 classified paper incinerator emis-
sion has an opacity less than Shade #1 on the Ringelmann
Chart. The C-405 incinerator is equipped with a flue gas
scrubber and for brief periods may exceed Shade #1 but not
Shade #2 or the opacity guidelines as specified for existing
incinerators in Kentucky Regulation No. AP-3, Section 1.
(3) (a) and (b).
101
7. That for process operations particulate emissions,
none of the some 25 process vents or emission sources emit
visible particulate matter or any quantities in excess of
those specified in Table 3.2 of Kentucky Regulation No.
AP-3, Section 3.
8. Kentucky Regulation No. AP-5, Control of Hy-
drocarbon Emissions From Stationary Sources, is appli-
cable to existing installations with respect to hydrocarbons
which are in those regions classified as Priority I. The
Paducah-Cairo region is classified as Priority III for hy-
drocarbons. Kentucky Regulation No. AP-6, Control of
Carbon Monoxide Emissions, likewise is applicable to
existing installations in those regions classified as Priority
I. The Paducah-Cairo region is classified as Priority III
for carbon monoxide.
9. That the Paducah Gaseous Diffusion facility in
its air emissions is in compliance with the ambient air
quality standards as specified in Kentucky Regulation No.
AP-9, Sections 1. and 2.
10. That the basic information and arithmetical
data substantiating the above compliance with the Ken-
tucky Air Pollution Control standards and limitations was
furnished to the State of Kentucky in July 1971; that
the basic operation of the facility remains unchanged from
that date; and that such information and data can be
furnished to the Court if it so desires.
102
Further affiant sayeth not.
/s/ Jerome F. Wing
Jerome F. Wing, Chief
Environmental Protection
Branch
Oak Ridge Operations Office
United States Atomic Energy
Commission
[Jurat Omitted in Printing]
AFFIDAVIT
I, F. D. H. Berry, Colonel, Corps of Engineers, do hereby
swear under oath that I am the Director, Facilities En-
gineering, US Army Armor Center and Fort Knox, Fort
Knox, Kentucky, and that I have held this position since
May 1972.
The purpose of this affidavit is to relate to the Court the
actual state of air contaminant sources at Fort Knox, in
reference to the general allegations made in paragraphs
28, 35, and 36 of the Complaint in the case of Common-
wealth of Kentucky v. Ruckelshaus, et al.
In the order presented in paragraphs 28 and 35 of the
above-mentioned Complaint, the following is a listing of
present sources at Fort Knox classified as air conta-
103
nunants and requiring registration under Kentucky regu-
lations :
1. There are currently 48 oi] burning indirect heat
exchangers in the 0-10 million BTU per hour input
range. For these units, the particulate emission rate is
.107 (all references to emission«rates for indirect heat
exchangers wiil be given in pounds per million BTU input
per hour), and the sulfur dioxide emission rate in .121.
These rates are within the Kentucky standards for parti-
culates of .75 [Table 3-1, Reg. No. AP-3 (all AP citations
may be found in Exhibit B to the Complaint)] and for
sulfur dioxide of 2.5 of 2.0 [Sec. 1(4), Reg. No. AP-4].
2. Two years ago there were 159 coal-fired_indirect
heat exchangers in the 0-10 million BTU per hour input
range. 18 of these units are in buildings scheduled for
tear down. (5 have already been torn down, 10 more-are
scheduled for tear down in 1973, and the remaining 3 are
scheduled for fiscal year 1978.) 12 units have been con-
verted to natural gas. 10 units are in the process of being #
converted to No. 2 fuel oil (6 of which are convertible
from gas to oil, see subparagraph 7 below. As of 1
March 1973, this project was 85% complete, and the esti-
mated completion date was 18 April 1973. The contract
number is DACA 31-72—C-0191). 86 units are under
contract for conversion to No. 2 fuel oil (50 of which are
convertible from gas to oil, see subparagraph 7 below),
with an expected completion date around November 1973.
(The contract, DACA 31-73-C-0073, has been awarded,
but work has not begun yet.) The remaining 33 were
originally planned to be converted by personnel from
my Directorate. However, lack of sufficient operations
104
and maintenance funds delayed accomplishment of these
plans. Therefore, I have requested that this work be
added as a supplement to the existing fuel conversion
project under contract. (My office has sent preliminary
information on this supplement to the Baltimore District
Office of the Corps of Engineers. They in turn will supply
my office with designs for the project. We then will sub-
mit the project to Headquarters, First U.S. Army, for
approval. If approval is received, this project would be a
supplement to contract DACA 31-72-C-0191, and the
work could be completed by the end of 1973.) These 33
units exceed Kentucky emission rates — actual particulate
emission rate is .77, allowable is .75 (Table 3-1, Reg. No.
AP-3): actual sulfur dioxide emission rate is 5.24, allow-
able is 4.0 or 3.5 [Sec. 1(4), AP-4].
3. There are currently three incinerators utilized
on Fort Knox. One is used to burn classified wastes and
is within Kentucky emission rates — actual particulate
emission rate is approximately .12 grains per standard
cubic foot converted to 12% carhon dioxide, allowable is
20 grains converted to 12% [Sec. 1(3)(e) (ii), AP-3].
The other two incinerators are used to destroy pathological
waste at Ireland Army Hospital. An air pollution survey
«f Fort Knox by the US Army Environment Hygiene
Agency in 1967 did not mention these incinerators as ¢x-
cessive pollution sources. A similar survey in 1971 recom-
mended that they he tested to determine whether they com-
plied with Kentvcky stand:rds. This test was requested
by this headquarters but was postponed by the Hygiene
Agency several times due to manpower shortages. It was
finally conducted on 30 January 1973, and it was deter-
105
mined that the incinerators exceeded Kentucky emission
rates. In light of this information, I have directed my
office to develop a project and request necessary funds to
repiace these two incinerators with a single unit meeting
the Kentucky particulate emission standard. This project
appears to be within the scope of operations and mainten-
ance funds which can be approved either locally or at
Headquarters, First U.S. Army, depending on the exact
cost. This headquarters intends to design the project and
have it ready to advertise for bids by the end of the second
quarter of fiscal vear 1974. Actual award of the contract
and completion of work will be entirely contingent upon the
availability of funds.
4. There are approximately 375 coal-fired stoves on
the reservation. It is unlikely for more than 25% of these
units to be used at any one time. These stoves are small
units (approximately 60,000/BTU hour input) which are
used as small space heaters, mainly in tents by soldiers in
the field. They probably do not require registration, being
analogous to the indirect heat exchangers used in resi-
dential buildings excepted by Section 4(4)(c), AP-1.
If they are not so exempt, they do exceed the Kentucky
eniission limitations.
5. Stone crushing processing occurring on this instal-
lation complies with Kentucky regulations. Reasonable
precautions are taken to prevent particulate matter from
becoming airborne. Any dust which does arise settles out
of visibility before crossing the boundaries of Fort Knox
(Sec. 4, AP-3). Inasmuch as crushed stone is available
from local sources, an engineering survey is underway to
determine if stone can be economically purchased com-
mercially.
106
6. Not mentioned in paragraph 28 of the Complaint
but alluded to in paragraph 35, there are 1,441 gas-fired
indirect heat exchangers at Fort Knox which would be
classified as air contaminant sources under Kentucky
regulations. These units are well within the Kentucky
emission rates — actual particulate emission rate is .018,
allowable is .75 (Table 3-1, AP-3); actual sulfur dioxide
emission rate is .0057, allowable is 2.5 or 2.0 [Sec. 1(4),
AP-4].
7. Finally, after completion of the contracts men-
tioned in subparagraph 2 above, there will be 93 units on
post (including the 56 mentioned in subparagraph 2 above)
which may be fired from either gas or oil. These units
will primarily be fired by gas, but they will be changed to
oil during extremely cold weather in order to preserve
natural gas. Regardless of which fuel is used, under sub-
paragraphs 1 and 6 above their emissions will be within
Kentucky limitations.
8. There are no other known sources at Fort Knox
which would require registration under Kentucky regula-
tions.
The information outlined above is true and complete to
the best of my knowledge.
/s/ E. D. H. Berry
E. D. H. BERRY
Colonel, Corps of Engineers
Director of Facilities
[Jurat Omitted in Printing]
107
AFFIDAVIT
State of Kentucky |
f
County of Fayette |
I, ERNEST A. VULEY, JR., being first duly sworn,
depose and say that I am a Colonel, United States Army,
presently assigned as the Commander, Lexington-Blue
Grass Army Depot, Lexington, Kentucky.
In this position I am responsible for all operations
of the installation. In the performance of its mission:
The Lexington-Blue Grass Army Depot, Blue Grass
Activity, has a total of thirteen coal fired indirect heat
exchangers having rated input capacities ranging from
1,000,000 BTU/hr to 7,800,000 BTU/hr. Based upon
Preliminary Air Pollution Engineering Survey No. 21-
007-71, conducted by US Army Environmental Hygiene
Agency, Edgewood Arsenal, it would take sixteen of
these units of this rated capacity to produce sufficient
particulate emissions before the allowable limits would
be exceeded. It was recommended that the units of this
capacity be converted to No, 2 fuel oil to reduce particulate
emissions. Three of these units have already been con-
verted. Approval has been received for the conversion of
the ten remaining units, funds have been allocated and ma-
terial ordered to complete the conversion. It is expected that
this project will be completed by 15 October 1973.
108
The Lexington-Blue Grass Army Depot, Ammuni-
tion Division, Directorate for Distribution and Trans-
portation, operates a deactivation furnace at the Blue
Grass Activity for the purpose of salvaging metallic
comiponents of deteriorated small arms ammunition and
other small encased explosives. The burning process de-
stroys the explosive materials and permits recovery of
metal. An average of approximately five hundred tons per
year are processed in this manner.
_ The Lexington-Blue Grass Army Depot, Lexington
Activity,.operates a central heating plant containing three
coal fired spreader stoker boilers of a total rated input
capacity of 143,000,000 BTU /hr. Combustion gases are
vented to the atmosphere through a common stack. En-
gineering caiculations indicate that particulate emissions
(rom this plant exceed the allowable limits. Currently an
approved Military Construction Army project is included
inthe fF Y-73 program. This project includes the installa-
ion ofa cyclone collec’or, which will reduce particulate
emissions by eighty-five percent. Estimated completion
late 15 October 1973.
The depot has nine natural gas fired indirect heat
exchangers which are used in family housing units. The
furnaces have a rated capacity of approximately 50,000
BTU/hr, which is well within the prescribed standards.
No addiiional control measures are deemed necessary for
these units.
In addition to the contaminant sources cited above,
the following operations are conducted at this installation
which result in the generation of air contaminants:
109
(1) Open burning and detonation of military ex-
plosives and propellants. This operation is an accepted
method of disposal. The contaminants released are mini-
mal because burning is performed under strictly controlled
surveillance;
(2) The operation of forty-seven No. 2 fuel oil fired
indirect heat exchangers, forty-three of which have rated
capacities less than 3,000,000 BTU/hr. Four units have
rated capacities between 5,800,000 BTU /hr and 13,800,000
BTU/hr. The emissions from these units do not exceed
allowable limits, therefore, no additional control measures
are necessary; and
| (3) Other areas of operation at this installation do
generate emissions that are classified as air contamin-
ants, such as electroplating, spray painting, solvent clean-
ing, sandblasting and wood working. The amount of em-
issions from these operations is insignificant, however,
control measures have been taken to further minimize
their environmental impact by installing hoods and air
filtration systems.
IN WITNESS WHEREOF, I have set my hand
this 2nd day of March, 1973.
/s/ Ernest A. Vuley, Jr.
ERNEST A. VULEY, JR.
COL, QMC
COMMANDING OFFICER
[Jurat Omitted in Printing]
110
[Title Omitted in Printing]
Affidavit
sefore me, the undersigned authority, at Fort Campbell,
on this 28th day of February 1973, personally appeared
Mr. Robert Anderson, known to me to be the person
whose namie is subscribed to the following statement, who
after being duly sworn deposes and says that:
1. The affiant is a resident of Hopkinsville, Kentucky.
2. The affiant has read the complaint in the above styled
case and currently serves as Deputy to the Facilities En-
cineer. The Directorate of Facilities Engineer is the de-
fendant's, Major General John H. Cushman, staff agency
which has the responsibility for the operation and control
of the air contaminant sources listed in paragraph 28(d)
of the complaint.
3. Attached to this affidavit is a comparative listing of
the Kentucky Emission Standards and computed emissions
for each item listed in the complaint. The computed emis-
ill
sions are based on tables contained in a booklet entitled
“A Compilation of Air Pollution Emission Factors for
Combustion Processes, Gasoline Evaporation, and Select-
ed Industrial Processes”, published in May 1965 by the US
Department of Health, Education and Welfare, Public
Health Service, Division of Air Pollution, Cincinnati,
Ohio. This listing will show all heating plants using gas
aud /or fuel oil are in compliance with the Kentucky stand-
ards as published by the Kentucky Air Pollution Control
Commission. No actual test of the emission sources was
made.
4. The attached comparison shows that Item 6, Item 7:
and Items 9 and 10 are not presently in compliance with
the Kentucky standards. The following additional infor-
mation is added with respect to those items:
a. Item 6 — Building 7205. Although computa-
tions indicate that emissions from this plant slightly
exceed the standards, it should be noted that it only op-
erates five to six months out of the year. It is proposed
to convert this plant to natural gas, thus, complying with
the Kentucky standards in FY 1975. This conversion
could be accomplished at an earlier date if additional natur-
al gas becomes available from our supplier.
b. Item 7 — 25 buildings in the 5800, 5900, and
6100 blocks. These heating plants are also only operated
five to six months per year. They may be fired but are
not required to be fired unless the temperature falls below
35°F. Nine permanent gas fired motor repair shops pro-
grammed for construction in FY 1977 MCA program will
replace these 25 temporary buildings. Fort Campbell has
112
requested appropriations for this project every year since
1966. However, this request has only been proposed to
Congress once in FY 1970, and appropriations for con-
struction were reused. Replacement of these shops has
been requested because the buildings are badly in need of
replacement and not necessarily to correct an air pollution
problem. Thus, when the requirement came to eliminate
air contaminant sources, conversion of these heating sys-
tes did not seem appropriate because of our projected
plans to replace the buildings altogether. Further, the
natural gas supplier for Fort Campbell has stated that
he will only supply fuel for newly constructed facilities
and not for converted heating systems. Conversion to
natural gas is not possible now because that fuel is not
available. Also, other cleaner burning fuels which would
meet Kentucky standards are in short supply. According-
ly, Fort Campbell is waiting for approval for the funds
necessary to construct these new motor repair shops to
replace the buildings listed in Item 7 of the complaint.
Presently, the appropriations are planned for in the 1977
MCA program. It should be noted at this point that in
requesting the approval of programs for construction of
the nine motor repair shops, elimination of an air conta-
nrinant source was not listed as a basis for approval action.
Hiowever, when this program comes to the short range
planning phase, this matter will be brought out. In addi-
tion to the twenty-five buildings listed in the complaint,
Fort Campbell has fourteen additional motor repair shops
with similar heating facilities now in operation. Since
August 1972, ihe requirement to furnish these additional
facilities has been placed on the Directorate of Facilities
Engineering by the development of the 101st Airborne Divi-
113
sion to a complete state of operational readiness. There
are no other facilities available at Fort Campbell that would
meet the minimum needs of the 101st Airborne Division
and thus preclude the necessity of operation of these addi-
tional air contaminant sources. The additional buildings
are planned for replacement in future MCA programs.
c. Items 9 and 10 — Buildings 6550 and 6548.
These plants are also used only for space heating and
operate some five to six months per year. These are
temporary aircraft maintenance shops and will be re-
placed by permanent facilities that are either already under
construction, approved by Congress for construction or
proposed for construction in FY 1974 MCA program.
5. Further affiant sayeth not.
/s/Robert Anderson
ROBERT ANDERSON
Deputy Director
Facilities Engineering
[Jurat Omitted in Printing]
$02
(Lb / Million
4.36
4.36
0.33
BTU)
(Lb / Million
BTU)
1.3
0.74
0.74
0.084
COMPUTED ACTUAL EMISSIONS
PARTICULATES
4.0
4.0
4.0
2.22
0.56
0.56
0.31
0.31
0.45
0.45
0.56
0.56
0.56
KY. EMISSION STANDARD
Gas
Gas
Gas
Gas
Gas
Gas
Coal
Coal
Gas
Coal
Coal
Gas
Gas
Gas
Oil
5.6
3.7
118.3
8.7
25.8
2.7
84
0.576
54.3
(Total for oll 3
9.6
22.5
bidga
Pathological incineration for which Kentucky issued construction permit
2996
98
5800; 5900 (Total for all bldgs)
and 6100 Blocks
6256, 7042
6550 (Total for all 6 furnaces)
25 Bldgs in
and 7049 (Total for all bidgs)
6948
6926, 6938
ond 6944
6936
157
7106
7205
7251
115
Filed March 27, 1973
[Title Omitted in Printing]
MOTION FOR SUMMARY JUDGMENT
AGAINST DEFENDANTS, TVA,
WAGNER, SEEBER, McPHERSON
AND CAVANISS
Comes the plaintiff, Commonwealth of Kentucky.
Ex Rel Ed W. Hancock, Attorney General and moves
the court for a summary judgment against the defend-
ants, Tennessee Valley Authority, Wagner, Secber.
McPherson and Cavaniss on the ground that the
pleadings of plaintiff with the affidavit of Harold G.
Peters (attached as Exhibit 1), and the pleadings and
exhibits of these defendants, shows that there is no
genuine issue as to any of the following material facts
(1) Kentucky’s permit system is its substantive con
trol and abatement program for air pollution: (2)
TVA owns and operates the Shawnee and Paradise
Power Plants in Kentucky; (3) that each power plant
has coal-fired boilers which emit air contaminants
into the atmosphere of Kentucky (Fxhibit 2): and
(4) after having been reyuested to do so, TVA has
refused to apply for and obtain a permit as required
by Kentucky Air Pollution Control Commission Ad-
ministrative Regulation AP-1l. Plaintiff contends it
is entitled to a summary judgment as a matter of lay
116
against these defendants. Plaintiff's brief in support
of this motion is attached hereto.
Plaintiff requests that this Motion be set for oral
hearing at the convenience of the Court.
Respectfully submitted,
ED W. HANCOCK
ATTORNEY GENERAL
/s/ Kenneth A. Howe, Jr.
Kenneth A. Howe, Jr.
Assistant Deputy Attorney
General
Capitol Building
Frankfort, Kentucky 40601
/s/ David C. Short
David C. Short
Assistant Attorney General
Capitol Building
Frankfort, Kentucky 40601
/s/ David D. Beals
David D. Beals
Assistant Attorney General
Capitol Building
Frankfort, Kentucky
COUNSEL FOR PLAINTIFF
[Certi
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.