# Appendix — Hancock v. Train

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0234%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1976
- **Citation:** 426 U.S. 167

## 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.

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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,

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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

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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

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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.

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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

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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)

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(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

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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

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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

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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

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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

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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.

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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.

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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

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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 Cu

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0234%3A03. Public record. Not legal advice.