Petitioners Brief — Hancock v. Train

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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,

ETAL .. RESPONDENTS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR PETITIONER

ED W. HANCOCK DAVID D. BEALS

Attorney General Assistant Attorney General

Commonwealth of Kentucky Commonwealth of Kentucky

Room 114, Capitol Building Room 26, Capitol Building

Frankfort, Kentucky 40601 Frankfort, Kentucky 40601

Telephone (502) 564-7600 Telephone (502) 564-3595

DAVID C. SHORT

Assistant Attorney General

Commonwealth of Kentucky

Room 26, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-3596

— ee ee

Petition for Certiorari Filed September 3, 1974

Certiorari Granted March 17, 1975

TABLE OF CONTENTS

Page

GO ee iv

GO MEE sctcnntaconucentdseseceonens 1

FEED ve covenacecaveessccesececeesougs 2

QUESTIONS PRESENTED .........ccccccccccgs 2

DID THE COURT OF APPEALS FOR THE SIXTH CIR-

CUIT ERR IN FAILING TO FIND THE PERMIT RE-

QUIREMENT CONTAINED IN KENTUCKY’S IMPLE-

MENTATION PLAN FOR THE ATTAINMENT AND

MAINTENANCE OF NATIONAL AND STATE AMBIENT

AIR QUALITY STANDARDS WAS A REQUIREMENT

RESPECTING CONTROL AND ABATEMENT OF AIR

POLLUTION WITHIN THE MEANING OF SECTION 118

OF THE CLEAN AIR ACT AMENDMENTS OF 1970,

42 U.S.C. §1857f., AND A REQUIREMENT NECESSARY

TO THE EFFECTIVE IMPLEMENTATION OF THE

STANDARDS OF AIR QUALITY AND THE ACCOMP-

LISHMENT OF THE GOALS OF THE CLEAN AIR ACT,

GD GEES cancccacccngccncccccoceseccgeuseceeneesesn 23

DOES THE RULING OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT THAT AIR CONTAMINANT

SOURCES OWNED, OPERATED, OR CONTROLLED BY

THE FEDERAL GOVERNMENT ARE SUBJECT ONLY

TO ACTIONS UNDER SECTION 304 OF THE CLEAN AIR

AMENDMENTS OF 1970, 42 U.S.C. §1857h-2, PRESENT

A SIGNIFICANT HINDRANCE TO THE EFFECTIVE

IMPLEMENTATION OF THE STANDARDS OF AIR

QUALITY AND THE ACCOMPLISHMENT OF THE

GOALS OF THE CLEAN AIR ACT, AS AMENDED? -______- 3

TABLE OF CONTENTS (Continued)

Page

Ill

DID THE COURT OF APPEALS FOR THE SIXTH CIR-

CUIT ERR IN RULING THAT THIS ACTION WAS

BARRED BY THE DOCTRINE OF SOVEREIGN IM-

MUNITY AND BY THE SUPREMACY CLAUSE OF

THE UNITED STATES CONSTITUTION, ARTICLE VI,

GREE GD cee cccccncccecccccsccnannscecsasspassessensess 3

STATUTORY PROVISIONS INVOLVED .... 3-11

STATEMENT OF THE CASE ............06- 11-15

SUMMARY OF ARGUMENTS .............. 16-18

ARGUMENT I

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERRED IN FAILING TO FIND THE PERMIT RE-

QUIREMENT CONTAINED IN KENTUCKY’S IMPLE-

MENTATION PLAN FOR THE ATTAINMENT AND

MAINTENANCE OF NATIONAL AND STATE AMBIENT

AIR QUALITY STANDARDS WAS A REQUIREMENT

RESPECTING CONTROL AND ABATEMENT OF AIR

POLLUTION WITHIN THE MEANING OF SECTION 118

OF THE CLEAN AIR ACT AMENDMENTS OF 1978,

42 U.S.C. §1857f., AND A REQUIREMENT NECESSARY

TO THE EFFECTIVE IMPLEMENTATION OF THE

STANDARDS OF AIR QUALITY AND THE ACCOM-

PLISHMENT OF THE GOALS OF THE CLEAN AIR

ACT,ASAMENDED 0 nnn 18-39

iii

TABLE OF CONTENTS (Continued)

Page

ARGUMENT II

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERRED IN FINDING THAT AIR CONTAMINANT

SOURCES OWNED, OPERATED, OR CONTROLLED BY

THE FEDERAL GOVERNMENT ARE SUBJECT ONLY

TO ACTIONS UNDER SECTION 364 OF THE CLEAN

AIR ACT AMENDMENTS OF 1970, 4? U.S.C. §1857h-2,

AND THIS RULING PRESENTS A SIGNIFICANT HIN-

DRANCE TO THE EFFECTIVE IMPLEMENTATION

OF THE STANDARDS OF AIR QUALITY AND THE

ACCOMPLISHMENT OF THE GOALS OF THE CLEAN

AIR ACT, AS AMENDED ....-.. __-- a peeeeese 39-48

ARGUMENT Ill

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERRED IN RULING THAT THIS ACTION WAS BAR-

RED BY THE DOCTRINE OF SOVEREIGN IMMU-

NITY AND BY THE SUPREMACY CLAUSE OF THE

UNITED STATES CONSTITUTION, ARTICLE VI,

GRAS © ccccccccccccccccccccscscscccccccccccccceseces 48-61

COBBCLUSION cccccccccccccccccccccccccces 61-63

CERTIFICATE OF SERVICE: .............. 64-66

INDEX TO CITATIONS

CASES: Page

Baltimore National Bank v. State Tax Commission,

BBG U. BED CIGSB) oc ccccccccccvcvcesoccces 54

Caminette v. U. S.,

B43 U.S. 470 (CIGI7) ccccccccccsccccccccccecs 19

Carter v. Seamons,

411 F.2d. 767, 771 (5 CA, 1969),

cert. den. 397 U.S. 941 (1970) ........455. 59, 60

County of Milwaukee v. Veteran's Administration,

5 ERC 1412 (ED. Wisc., May 7, 1973) ...... 60, 61

Dugan v. Rank,......

572 US. GD CIGGER) cccccccccccccccnccoovces 59

Ex Parte Collett,

337 U.S. 55, 69 S.Ct. 944,

FS Lee CBee CEPT) cccccdccccccsesesovecsése 36

Florida Lime & Avocado Growers, Inc vy. Paul,

BIS US. E56 CIBER) cccccccccscccccccccosces 58

Gemsco, Inc. v. Walling,

324 U.S. 244, 260, 89 L.Ed. 921,

SED CERES) ccccccccscccccecscccscscccencees 36

Getty Oil Co. (Eastern Operations) v Ruckelshaus,

342 F.Supp. 1006, 1017, (Dist. Dela., 1972),

modified 467 F.2d. 349 (3rd. Cir., 1972),

cert. den. 409 U.S. 1125 (973) ......ce000. 55, 56

Helvring v. Hammel,

BO8 UD. F06 CIE) cccccescccivccesseuceces 27

INDEX TO CITATIONS (Continued)

CASES: Page

Hines v. Davidowitz, ae ¥

OS. Se as Ge CHEE becicdoddesdcidcsiedes 57, 58

Larson». Domestic & Foreign Commerce Corporation,’ *

‘'\ 337 U.S. 682, 689, 93 L.Ed. 1628, 1635,

Re bdaccveneevesecessesusanes aie 59

Malone vy. Bowdoin, :

Baw Ud Gb COED voccdpecucosgcesessncece 59

Mayo vy. U. S.,

319 U.S. 441, 446, 63 S.Ct 1137, 1140,

SF Ente, BOO COED CUSED ccccccccsccceseces 49

Nash: v. Forida Industrial Comi.,

Bee Wa Gee CHO) obadddvsocscecetebecdes oTk

Peres v. Campbell, |

Ge Ue Ge Cee LTRGED belo weeds esccevess 57, 58

Sears, Roebuck & Co., v. Stiffel Co.,

Pe Grd Eee CED 6 a060eus es cbs Cederasees 58

62 Cases, More or Less, Fach Containing 6 Jars

of Jam vy. U.S.,

340 U.S, 593, 596, 71 S.Ct. 515, 95 L.Ed. 566

CUPOE) ccccvcdccenceddesecdecesanvaresosecs 32

State of Alabama v. Seeber,

502 F.2d. 1238, 1243, 1244, 1245, 1246, 1247,

1248 (1974), ....22-26, 33, 34, 36-38, 47, 50-52, 61

State of California v. EPA,

7. ERC 1667, 1671, 1672, 1673 (9 CA.,

Peavaen BE, TIVE) ccvvesscccesvncsscsces 52, 53

est

INDEX TO CITATIONS (Céntinued)

CaSEs: Page

State of Washington v. Udall,

417 F.2d. 1310 (9 CA, 1969) .......eeeeeeeees 59

Train v. Natural Resources Defense Council,

43 U.S. L.W. 4467, 4467 (U.S., April 16, 1975) .. 29

U.S. v. Katz,

EUG 200 CODD) cnc ccccccccscscdscscses ar

Washington Market Co. v. Hoffman,

101 U.S. 112, 115, 116, 25 L.Ed. 782 (1879) .... 26

STATUTES: Page

Clean Air Act Amendments of 1970

Title 42, Section 1857. et seq., U.S.C.

Section 101(a), Clean Air Act Amendments of 1970

Title 42, Section 1857(a), U.S.C. .......... 28, 35

Section 101(b), Clean Air Act Amendments of 1970. .

Title 42, Section 1857(b), U.S.C. ........eeeee 27

Section 107, Clean Air Act Amendments of 1970

Title 42, Section 1857c-2, U.S.C. ........005- 28 ,29

Section 109, Clean Air Act Amendments of 1970

Title 42, Section 1857c-4, U.S.C. ......ccceeees 29

Section 110, Clean Air Act Amendments of 1970

Title 42, Section 1857c-5, U.S.C. 29, 38, 39, 54, 55, 62

Section 110(a), Clean Air Act Amendments of 1970

Title 42, Section 1857c-5(a) .....scccceees 29, 30

vii

INDEX TO CITATIONS (Continued)

STATUTES: Page

Section 111(c) (1), Clean Air Act Amendments of 1970

Title 42, Section 1857c-6(c)(1), U.S.C. ....... 31

Section 112(d)(1), Clean Air Act Amendments of 1970

Title 42, Section 1857c-7(d)(1), U.S.C. ........ 31

Section 113, Clean Air Act Amendments of 1970

Title 42, Section 1857c-8, U.S.C. .......... 4, 56, 57

Section 114(b)(1), Clean Air Act Amendments of 1970

Title 42, Section 1857c-9(b)(1), U.S.C. ........ 32

Section 116, Clean Air Act Amendments of 1970

Title 42, Section 1857d-1, U.S.C. .......... 24, 26

Section 118, Clean Air Act Amendments of 1970

Title 42, Section 1857f., U.S.C. ..18-20, 23, 24, 26,

31-36, 38-40, 42, 49, 50, 54, 55, 59, 61

Section 209, Clean Air Act Amendments of 1970

Title 42, Section 1857f-6a, U.S.C. ..........00. 32

Section 304, Clean Air Act Amendments of 1970

Title 42, Section 1857h-1, U.S.C. ..40-43, 45-47, 62

Federal Water Pollution Control Act of 1972

Title 33, Section 1251 et seg., U.S.C. ........... 52

Section 313, Federal Water Pollution Control Act of 1972

Tithe 33, Section 1525, U.S.C. occcccccss 52, 53, 54

Section 402, Federal Water Pollution Control Act of 1972

Tithe 33, Section 1946, U.S.G. ccccccccccveccs 53, 54

Vili

INDEX TO CITATIONS (Continued)

OTHER REFERENCES: Page

Davis, Administrative Law Treatise, Volume 3, 27.03 ..60

Bp Gris EE PEPER EED ccccccesccesccosces 22

Congressional Record, Volume 116, Part 24,

PU SUE Kndecescedonenessssecconcesines 43

Congressional Record, Volume 116, Part 24,

Pe BEE ewosccvendécvcnncoensasccees 43, 44

Congressional Record, Volume 116, Part 24,

. f . PPPPPOPTUTTTTTTTT ITT Te TITTT TT Tree 44

Congressional Record, Volume 116, Part 24,

PU TERE cbs ceccncdsvcccccncconecsseseess 44

36 Federal Register 158, (August 14, 1971) ........ 22

37 Federal Register 10842, (May 31, 1972) ........ 49

37 Federal Register 10846 ,( May 31, 1972) ......... 56

39 Federal Register 10277, (March 19, 1974) ....... 49

39 Fedreal Register 29357, (August 15, 1974) .... 49, 55

H.R. 17255, 91st. Congress, 2d. Session, Sec. 111 (1970) 35

Kentucky Air Pollution Control Commission,

Administrative Regulation AP-1, Section 5;

Kentucky Implementation Plan For the Attainment

and Maintenance of National and State Ambient

Air Quality Standards, Chapter 7 ........ 20, 21, 38

2 J. Sutherland, Statutory Construction, Section 4915

er re ery ee 31

The Air Quality Acts of 1967, Sec. 111, P.L. 90-148 ... 34

S. 4358, 91st. Congress, 2d. Session, Sec. 118 (1970) .. 35

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,

EEE TEED cincinalsndenadentonassqmbtbbwetactisonien RESPONDENTS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR PETITIONER

MAY IT PLEASE THE COURT:

OPINIONS BELOW

The Opinion of the United States Court of Appeals

For the Sixth Circuit is reported at 497 F.2d. 1172 (1974)

and appears in the Appendix, pp. 157. The Opinion of

the United States District Court For the Western Dis-

trict of Kentucky is reported at 362 F.Supp. 360 (1973)

and appears in the Appendix, pp. 129.

JURISDICTION

The judgment of the United States Court of Appeals

For the Sixth Circuit was entered on June 5, 1974, and

appears in the Appendix, pp. 157. The Petition For Writ

of Certiorari was filed less than ninety days from the

date aforesaid and docketed on September 3, 1974. The

Writ of Certiorari to the United States Court of Appeals

For the Sixth Circuit was issued on March 17, 1975, and

appears in the Appendix, p. 174. The jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

The jurisdiction of the District Court was invoked

because the question arose under the Clean Air Act, as

amended, 42 U.S.C. §1857, et seq., a Federal statute relat-

ing to the environment. The questions with respect to

this statute presented in this BRIEF FOR PETITIONER

are as follows:

QUESTION I

DID THE COURT OF APPEALS FOR THE SIXTH

CIRCUIT ERR IN FAILING TO FIND THE PERMIT

REQUIREMENT CONTAINED IN KENTUCKY’S

IMPLEMENTATION PLAN FOR THE ATTAINMENT

AND MAINTENANCE OF NATIONAL AND STATE

AMBIENT AIR QUALITY STANDARDS WAS A RE-

QUIREMENT RESPECTING CONTROL AND ABATE-

MENT OF AIR POLLUTION WITHIN THE MEAN-

ING OF SECTION 118 OF THE CLEAN AIR ACT

AMENDMENTS OF 1970, 42 U.S.C. §1857f., AND A

REQUIREMENT NECESSARY TO THE EFFECTIVE

IMPLEMENTATION OF THE STANDARDS OF AIR

QUALITY AND THE ACCOMPLISHMENT OF THE

GOALS OF THE CLEAN AIR ACT, AS AMENDED?

QUESTION II

DOES THE RULING OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT THAT AIR CONTAMIN-

ANT SOURCES OWNED, OPERATED, OR CONTROL-

LED BY THE FEDERAL GOVERNMENT ARE SUB-

JECT ONLY TO ACTIONS UNDER SECTION 304 OF

THE CLEAN AIR ACT AMENDMENTS OF 1970, 42

U.S.C. §1857h-2, PRESENT A SIGNIFICANT HIND-

RANCE TO THE EFFECTIVE IMPLEMENTATION OF

THE STANDARDS OF AIR QUALTIY AND THE AC-

COMPLISHMENT OF THE GOALS OF THE CLEAN

AIR ACT, AS AMENDED?

QUESTION III

DID THE COURT OF APPEALS FOR THE SIXTH

CIRCUIT ERR IN RULING THAT THIS ACTION

WAS BARRED BY THE DOCTRINE OF SOVEREIGN

IMMUNITY AND BY THE SUPREMACY CLAUSE

OF THE UNITED STATES CONSTITUTION, AR-

TICLE Yi, CLAUSE 2?

STATUTORY PROVISIONS INVOLVED

This case involves Article VI, Clause 2, of the Con-

stitucion of the United States of America; Section 110 of

the Clean Air Act Amendments of 1970, 84 Stat. 1680,

42 U.S.C. §1857c-5; Section 118 of the Clean Air Act

Amendments of 1970, 84 Stat. 1689, 42 U.S.C. §1857f;

and Section 304 of the Clean Air Act Amendments of 1970,

84 Stat. 1706, 42 U.S.C. §1857h-2, which are reprinted

below. Also involved are Section 101, Section 107, Section

113, and Section 116 of the Clean Air Act Amendments of

1970; 81 Stat. 485, 84 Stat. 1678, 85 Stat. 464, 84 Stat.

1689; 42 U.S.C. §1857, §1857c-2, §1857c-8, §1857d-1; and

Kentucky Administrative Regulation AP-1, Section 5,

also promulgated in Chapter 7 of Kentucky’s Im-

plementation Plan For the Attainment and Maintenance

of National and State Ambient Air Quality Standards,

These are reprinted in pertinent part in Appendix C, page

36a, of the Petition For Writ of Certiorari filed in this

Court.

Constitution of the United States, Article VI,

Clause 2:

This Constitution, and the laws of the United States

which shall be made in pursuance thereof, and all treaties

made, or which shall be made under the authority of the

United States, shall be the supreme law of the land; and

the judges in every State shall be bound thereby, anything

in the Constitution or laws of any State to the contrary

notwithstanding.

Section 110 of the Clean Air Act Amendments of

1970, 42 U.S.C. §$1857c-5, in pertinent part:

IMPLEMENTATION PLANS

Sec. 110. (a) (1) Each State shall, after reasonable

notice and public hearings, adopt and submit to the Admin-

istrator, within nine months after the promulgation of a

national primary ambient air quality standard (or any

revision thereof) under section 109 for any air pollutant,

a plan which provides for implementation, maintenance,

and enforcement of such primary standard in each air

quality control region (or portion thereof) within such

State. In addition, such State shall adopt and submit to

the Administrator (either as a part of a plan submitted

under the preceding sentence or separately) within nine

months after the promulgation of a national ambient air

quality secondary standard (or revision thereof), a plan

which provides for implementation, maintenance, and en-

forcement of such secondary standard in each air quality

control region (or portion thereof) within such State.

Unless a separate public hearing is provided, each State

shall consider its plan implementing such secondary stand-

ard at the hearing required by the first sentence of this

paragraph.

(2) The Administrator shall within four months

after the date required for submission of a plan under

paragraph (1), approve or disapprove such plan or any

portion thereof. The Administrator shall approve such

plan, or any portion thereof, if he determines that it was

adopted after reasonable notice and hearing and that

(A) (i) in the case of a plan implementing a national

primary ambient air quality standard, it provides for the

attainment of such primary standard as expeditiously as

practicable but (subject to subsection (e)) in no case

later than three years from the date of approval of such

plan (or any revision thereof to take account of a revised

primary standard; and (ii) in the case of a plan imple-

menting a national secondary ambient air quality standard,

it specifies a reasonable time at which such secondary stand-

ard will be attained;

(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and such

other measures as may be necessary to insure attainment

and maintenance of such primary or secondary standard,

including, but not limited to, land-use and transportation

controls ;

tion of appropriate devices, methods, systems, and proce-

dures necessary to (i) monitor, compile, and analyze data

on ambient air quality and, (ii) upon request, make such

data available to the Administrator;

(D) it includes a procedure, meeting the requirements

of paragraph (4), for review (prior to construction or

modification) of the location of new sources to which a

standard of performance will apply;

(E) it contains adequate provisions for intergovern-

mental cooperation, including measures necessary to in-

sure that emissions of air pollutants from sources located

in any air quality control region wil not interfere with

the attainment or maintenance of such primary or second-

ary standard in any portion of such region outside of

such State or in any other air quality control region;

(F) it provides (i) necessary assurances that the

State will have adequate personnel, funding, and authority

to carry out such implementation pian, (ii) requirements

for installation of equipment by owners or operators of

stationary sources to monitor emissions from such

sources, (iii) for periodic reports on the nature and

amounts of such emissions; (iv) that such reports shall be

correlated by the State agency with any emission limita-

tions or standards established pursuant to this act, which

reports shall be available at reasonable times for public

inspection; and (v) for authority comparable to that in

section 303, and adequate contingency plans to implement

such authority;

(G) it provides, to the extent necessary and practica-

ble, for periodic inspection and testing of motor vehicles

to enforce compliance with applicable emission standards ;

and

(H) it provides for revision, after public hearings, of

such plan (i) from time to time as may be necessary to

take account of revisions of such national primary or

secondary ambient air quality standard or the availability

of improved or more expeditious methods of achieving

such primary or secondary standard; or (ii) whenever the

Administrator finds on the basis of information available

to him that the plan is substantially inadequate to achieve

the national ambient air quality primary or secondary

standard which it implements.

(3) (A) The Administrator shall approve any revi-

sion of an implementation plan applicable to an air quality

control region if he determines that it meets the require-

ments of paragraph (2) and has been adopted by the

State after reasonabe notice and public hearings.

Section 118 of the Clean Air Act Amendments of 1970,

42 U.S.C, §1857f.:

CONTROL OF POLLUTION FROM

FEDERAL FACILITIES

Sec. 118. Each department, agency, and instrumentali-

ty 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 re-

sulting; or which may result, in the discharge of air

pollutants, shall comply with Federal, State, interstate,

and. local requirements respecting control and abatement

of aif, pollution to the same extent that any person is

subject to such requirements. The President may exempt

any emission source of any department, agency, or in-

strumétitality in the executive branch from compliance

with such a requirement if he determines it to be in the

paranieount interest of the United States to do so, except

that -no-exemption may be granted from section 111, and

an exemption from section 112 may be granted only in

accordance with section 112(c). No such exemption shall

be granted due to lack of appropriation unless the Presi-

dent shall have specifically requested such appropriation

as a part of the budgetary process and the Congress shall

have failed to make available such requested appropria-

tion. Any exemption shall be for a period not in excess

of one year, but additional exemptions may be granted for

periods of not to exceed one year upon the President’s

making a new determination. The President shall report

each January to the Congress all exemptions from the

requirements of this section granted during the preceding

calendar year, together with his reason for granting each

such exemption.

Section 304 of the Clean Air Act Amendments of 1970,

42: U.S.C. §1857h-2:

CITIZEN SUITS

Sec. 304. (a) Except as provided in subsection (b),

any person may commence a civil action on his own be-

half — :

_ (1) against any person (including (i) the United

States, and (ii) any other governmental instrumentality

or agency to the extent permitted by the Eleventh Amend-

ment to the Constitution) who is alleged to be in violation

of (A) an emission standard or limitation under this Act

or (B) an order issued by the Administrator or a State with

respect to such a standard or limitation, or |

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this Act which is not discretionary with the Ad-

ministrator.

The district courts shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the

parties, to enforce such an emission standard or limita-

tion, or such an order, or to order the Administrator to

perform such act or duty, as the case may be.

(b) No action may be commenced —

(1) under subsection (a) (1)

(A) prior to 60 days after the plaintiff has given

notice of the violation (i) to the Administrator, (ii) to the

State in which the violation occurs, and (iii) to any alleged

violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and

is diligently prosecuting a civil action in a court of the

= =

a eer

United States or a State to require compliance with the

standard, limitation, or order, but in any such action in a

court of the United States any person may intervene as a

matter of right.

(2) under subsection (a) (2) prior to 60 days after

the plaintiff has given notice of such action to the Admin-

istrator, except ihat such action may be brought immedi-

ately after such notification in the case of an action under

this section respecting a violation of section 112(c) (1)

(B) or an order issued by the Administrator pursuant to

section 113 (a). Notice under this subsection shall be

given in such manner as the Administrator shall prescribe

by regulation.

tionary source of an emission standard or limitation or an

order respecting such standard or limitation may be

brought only in the judicial district in which such source

is located.

(2) In such action under this section, the Adminis-

trator, if not a party, may intervene as a matter of right.

(d) The court, in issuing any final order in any ac-

tion brought pursuant to subsection (a) of this section,

may award costs of litigation (including reasonable attor-

ney and expert witness fees) to any party, whenever the

court determines such award is appropriate. The court may,

if a temporary restraining order or preliminary injunction

is sough., require the filing of a bond or equivalent security

in accordance with the Federal Rules of Civil Procedure.

(e) Nothine in this section shall restrict any right

which any person (or class of persons) may have under

any statute or common law to seek enforcement of any

emission standard or limitation or to seek any other relief

(including relief against the Administrator or a State

agency ).

(f) For purposes of this section, the term emission

standard or limitation under this Act’ means—

(1) a schedule or timetable of compliance, emission

kimitation, standard of performance or emission standard,

(2) acontrol or prohibition respecting a motor vehicle

fuel or fuel additive, which is in effect under this Act

(ineluding a requirement applicable by reason of section

318) or under an applicable implementation plan.

STATEMENT OF THE CASE

This action arises on Writ of Certiorari to the United

States Court of Appeals For the Sixth Circuit to review the

Order of that Court affirming the Judgment of the United

States District Court For the Western District of Ken-

tucky entered against plaintiff-petitione: and in favor of

defendants-respondents (Appendix, p. 129 and Appendix,

p. 157) on the issue of whether Section 118 of the Clean

Air Act Amendments of 1970, 42 U.S.C. §1857f. requires

that Federal facilities operating or controlling air conta-

minant sources in the Commonwealth of Kentucky must

comply with Section 5 of the Kentucky Air Pollution Con-

trol Commission Administrative Regulation AP-1 by ap-

plying for and obtaining permits from the Kentucky Air

Pollution Control Commission.

Plaintiff in the District Court and appellant in the

Court of Appeals For the Sixth Circuit was the Common-

wealth of Kentucky, ex rel Ed W. Hancock, Attorney

General. es

Defendants in the District Court were William D.

Ruckelshaus,’ Administrator, Environmental Protection

Agency, when this action was fied; Jack E. Ravan, Reg-

ional Administrator, Environmental Protection Agency,

Region [V; the Environmental Protection Agency, (all

of which are hereinafter referred to as EPA); General

Creighton Abrams, Chief of Staff, United States Army;

Robert E. Froehlke, Secretary, Department of the Armry;

Major General W. R. Desbory, Commanding General,

United States Army Armor Center and Fort Knox; Major

General John Cushman, Commanding General, 101st Air-

borne Division, (Airmobile), and Fort Campbell; the De-

partment of the Army, (all of which are hereinafter re-

ferred to as Army) ; Aubrey J. Wagner, Chairman, Board

of Directors, Tennessee Valley Authority; Lynn Seeber,

General Manager, Tennessee Valley Authority; J. L. Mc-

Pherson, Superintendent, Shawnee Power Plant, Tennes-

see Valley Authority; T. E. Cavaniss, Superintendent,

Paradise Power Plant, Tennessee Valley Authority; the

Tennessee Valley Authority, (all of which are hereinafter

referred to as TVA); James R. Schlesinger, Chairman,

Board of Directors, Atomic Energy Commission; Robert

1 Pursuant to Rule 25(d) (1) of the Federal Rules of Ap-

pellate Procedure, Russell E. Train was substituted in the

Sixth Circuit as a party defendant-appellee in place of William

D. Ruckelshaus who has resigned from his position as Admin-

istrator of Environmental Protection Agency.

E. Hollingsworth, General Manager, Atomic Energy

Commission; B. W. Stiller, Manager, Paducah Gaseous

Diffusion Plant, Atomic Energy Commission; the Atomic

Energy Commission, (all of which are hereinafter referred

to as AEC); and the Union Carbide Corporation.

This action arises out of (1) the refusal of the TVA,

the Army, AEC, and Union Carbide Corporation to apply

for and obtain for equipment or installations. which they

are presently operating in the Commonwealth of Kentucky

permits from the Kentucky Air Pollution Control. Com-

mission,’ as required in Chapter 7 of Kentucky Implemen-

tation Plan For the Attainment and Maintenance of Na-

tional and State Ambient Air Quality Standards, (herein-

after referred to as the “Kentucky Plan” or the “Ken-

tucky Implementation Plan”), and (2) the refusal of EPA

to commence appropriate action against TVA, the Army,

AEC and Union Carbide Corporation upon their refusal

to apply for and obtain permits from the Kentucky Air

Poliution Control Commission as required by the Kentucky

Plan.

As a result of these refusals, the Commonwealth of

Kentucky, ex rel Ed W. Hancock, Attorney General, filed

suit in the District Court on November 16, 1972, asking

the Court for declaratory and injunctive relief (1) requir-

ing TVA, the Army, AEC, and Union Carbide Corpora-

tion to apply for and obtain permits from the Kentucky Air

Pollution Control Commission, (2) restraining the defend-

ants from refusing to comply with the provisions of Sec-

2 Now the Kentucky Department For Natural Resources

and Environmental Protection.

tion 118 of the Clean Air Act Amendments of 1970, 42

U.S.C. §1857f., and (3) requiring EPA to commence ap-

propriate action against TVA, the Army, AEC, and

Union Carbide Corporation. (Appendix, p. 1).

The claim against TVA, the Army, AEC, and Union

Carbide Corporation was based upon 42 U.S.C. §1857f.

which provides that Federal facilities “shall comply with

... State... requirements respecting control and abate-

ment of air pollution to the same extent that any person is

subject to such requirements,” and Section 5 of Administra-

tive Regulation AP-1 of the Kentucky Air Pollution Con-

trol Commission as promulgated in Chapter 7 of the Ken-

tucky Plan pursuant to Section 107 and Section 110 of

the Clean Air Act Amendments of 1970, 42 U.S.C. §1857

c-2 and 42 U.S.C. §1857c-5, respectively, which requires,

generally, that before any piece of equipment which might

result in the emission of air contaminants into the atmos-

phere can be constructed, modified, or operated within the

Commonwealth of Kentucky, the person or agency involved

must apply for and obtain air pollution control permits

from the Kentucky Air Pollution Control Commission

(Administrative Regulation AP-1, Section 5, is reproduced

in Appendix C, page 46a, of the Petition For Writ of

Certiorari filed in this Court on September 3, 1974). The

claim against EPA was based on 42 U.S.C. §1857c-8. (42

U.S.C. §1857c-8 is reproduced in pertinent part in Appen-

dix C, page 4la, of the Petition For Writ of Certiorari

filed in this Court on September 3, 1974).

On July 11, 1973, the District Court entered an Order

sustaining (1) a Motion For Summary Judgment filed

March 16, 1973, on behalf of all defendants except TVA

eS ae one

and its officials, (Appendix, p. 86), and (2) a Motion

For Summary Judgment filed March 5, 1973, on behalf of

TVA and its officials, (Appendix, p. 63), and overruling

a Motion For Summary Judgment filed March 27, 1973,

on behalf of the Commonwealth, plaintiff-petitioner, (Ap-

pendix, p. 115). The Order of the District Court also

directed defendants, respondents herein, to prepare and

tender a Memorandum Opinion reflecting the Court’s ex-

pressed legal views. (Order of District Court, Appendix

p. 127).

On August 13, 1973, the District Court entered a

Memorandum and Order and Judgment sustaining the

Motions of TVA, EPA, the Army, AEC, and Union Car-

bide Corporation for Summary Judgment and overruling

the Motion of the Commonwealth of Kentucky for Sum-

mary Judgment. (Appendix, p. 129).

On September 9, 1973, the Commonwealth of Ken-

tucky filed a Notice of Appeal from the Order of the Dis-

trict Court entered on the 11th day of July, 1973, and the

Judgment of said Court entered on the 13th day of Au-

gust, 1973, wherein the Motions for Summary Judgment

on behalf of TVA, EPA, the Army, AEC, and Union Car-

bide Corporation had been sustained. (Appendix, p. 151.)

On June 5, 1974, the Court of Appeals For the Sixth

Circuit entered its Opinion affirming the Judgment of

the District Court. (Appendix, p. 157).

On September 4, 1974, the Commonwealth of Ken-

tucky, ex rel Ed W. Hancock, Attorney General, filed its

Petition For Writ of Certiorari and on March 17, 1975,

this Court issued a Writ of Certiorari to the Court of Ap-

peals For the Sixth Circuit. (Appendix, p. 174).

SUMMARY OF ARGUMENTS

I, Examination of the plain meaning of Section 118

of the Clean Air Act Amendments of 1970, 42 U.S.C.

§1857f., which requires compliance by Federal facilities

with State “requirements respecting control and abatement

of air pollution,” and consideration of the Congressional

purpose and the scheme of the Clean Air Act as a whole

clearly indicate that Federal facilities operating or control-

ling air contaminant sources in the Commonwealth of Ken-

tucky are required to comply with Kentucky’s permit re-

quirement and all other requirements of the Kentucky

Imp ementation plan adopted pursuant to Section 110 of

the Clean Air Act Amendments of 1970, 42 U.S.C. §1857c-

5. In ruling that Federal! facilities are subject only to those

requirements of this Pian which are characterized as “sub-

stantive” the Court of Appeals For the Sixth Circuit has

rewri.ten the statute to grant the affected facilities an ex-

emption from other requirements contained in the Plan, an

exemption which was neither intended by the Congress nor

authorized under 42 U.S.C. §1857f. The primary respon-

sibility for the control and prevention of air pollution at

its source rests with the States and the Congressional plan

was that this responsibility was to be met by the formula-

tion and enforcement of State implementation plans de-

signed to achieve and maintain the National standards of

air qualiiy promulgated by the Administrator of the En-

vironmental Protection Agency. Accomplishment of this

goal requires, and the Congress intended, that the provi-

sions of these Plans be applicable to all air contaminant

sources within a State, including those operated or control-

led by the Federal Government.

~—

II. Section 304 of the Clean Air Act Amendments

of 1970, 42 U.S.C. §1857h-2, does not provide, nor was it

intended to provide, an alternative means by which the

States are to meet their responsibilities under the Act. In

addition to being limited to actions for violation of “a

schedule or timetable of compliance, emission limitation,

standard of performance or emission standard” this sec-

tion was clearly designed to allow public participation in

the enforcement of the standards of the Act and not as

the primary tool of State enforcement. The approach and

philosophy of this section are based in the penal principle

of arrest, trial and punishment and are antithetical to the

regulatory principles of prevention and control reflected

in the requirements included in the State Implementation

Plans in accordance with 42 U.S.C. §1857c-5, Section 110

of the Clean Air Act Amendments of 1970.

II]. The Supremacy Clause is inapposite in this case

for three reasons: (i) Federal facilities have been specifi-

cally subjected to State regulation in matters of air pollution

control by Congressional waiver contained in Section 118

of the Clean Air Act Amendments of 1970, 42 U.S.C.

§1857i.; (ii) the provisions of Kentucky’s Implementation

Plan have heen Federally approved and published in the

Federal Register, in accordance with the Clean Air Act,

as amended and are enforceable requirements of Federal

law; (iii) application of the Supremacy Clause in this case

is contrary to the purposes of the clause since the require-

ments of Kentucky's Implementation Plan do not in any

way frustrate or pose an obstacle to the application of

Federal law but rather were adopted in order to accomplish

the objectives of the Clean Air Act, as amended.

The Doctrine of Sovereign Immunity is likewise in-

applicable in the present case since the individuals against

whom relief is sought have uniformly exceeded their au-

thority as officers of the sovereign in refusing to comply

with the mandate of a Federal statute and are properly

subject to suit for specific relief.

ARGUMENT I

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERRED IN FAILING TO FIND THE PERMIT REQUIRE-

MENT CONTAINED IN KENTUCKY’S IMPLEMENTA-

TION PLAN FOR THE ATTAINMENT AND MAINTEN-

ANCE OF NATIONAL AND STATE AMBIENT AIR

QUALITY STANDARDS WAS A REQUIREMENT RE-

SPECTING CONTROL AND ABATEMENT OF AIR

POLLUTION WITHIN THE MEANING OF SECTION 118

OF THE CLEAN AIR ACT AMENDMENTS OF 1970, 42

U.S.C. §1857f., AND A REQUIREMENT NECESSARY TO

THE EFFECTIVE IMPLEMENTATION OF THE STAN-

DARDS OF AIR QUALITY AND THE ACCOMPLISH-

MENT OF THE GOALS OF THE CLEAN AIR ACT, AS

AMENDED.

The conclusion of the Court of Appeals For the Sixth

Circuit that Section 118 of the Clean Air Act Amend-

ments of 1970, 42 U.S.C. §1857f., requires that Federal

facilities operating air contaminant sources in the Common-

wealth of Kentucky need only comply with the “substan-

tive’ requirements of Kentucky’s Implementation Plan,

(Appendix, p. 157. 165), is contrary to the plain meaning

of this section. nrovides a judicially enacted exemption

from air pollution requirements which is completely un-

supported by other provisions of the Act, and does violence

to the carefully conceived Congressional plan for achiev-

ing the goas of the Clean Air Act, as amended. As writ-

ten, this section paces an unequivocal, unlimited, and man-

datory duty on those persons in charge of the administra-

tion of air contaminant sources operated by Federal

facilities and instrumentalities to comply with State re-

quirements respecting the control and abatement of air

pollution. 42 U.S.C. §1857{. provides in pertinent part:

“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, inter-

state, and local requirements respecting control and

abatement of air pollution to the same extent that

any person is subject to such requirements. The

President may exempt any emission source of any

department, agency, or instrumentality in the execu-

tive branch from compliance with such a requirement

if he determines it to be in the paramount interest of

the United States to do so... .”

In considering what the Congress intended by this

enactment, this Court should first look to the plain un-

ambiguous language of the statute. Canunetti v. United

States, 242 U.S. 470, (1917). The language of 42 U.S.C.

§1857f.is in no way ambiguous. All the language of this

section is susceptible to precise definition in its ordinary

usage and nowhere has Congress indicated it intended

other than the ordinary meaning of the words used.

There can be no doubt that the mandate of this sec-

tion applies to the respondents herein; each is a “depart-

ment, agency, or instrumentality of the executive, legisla-

tive, and judicial branches of the Federal Government (1)

having jurisdiction over any property or facility, or (2) en-

gaged in any activity resulting in, or which may result, in

the discharge of air pollutants,” or is a responsible officer of

such agency. The words “shall comply” are not possessed

of the smallest measure of ambiguity nor do they vest the

merest trace of discretion in those to whom the command

applies. Further, the statute clearly sets out the thing with

which respondents are to comply; “Federal, State, inter-

state, and local requirements respecting control and abate-

ment. of air pollution.” (Emphasis Added). Notably,

there is no language limiting this command other than

the necessity that the “requirement” be one “respecting

control and abatment of air pollution.” The language em-

ployed does not warrant or authorize the exceptions and

distinctions which the Court below wrote into the law; a

“requirement respecting control and abatement of air pol-

lution” is a requirement with which respondents “shall

comply.” Not only is it directed that the covered agencies

“shall comply,” but they “shall comply . . . to the same

extent that any person is subject to such requirements.”

In Kentucky, one of the primary “requirements” of

State law respecting control and abatement of air pollution

is a permit requirement contained in Kentucky Admin-

istrative Regulation AP-1, Section 5, which was included

in Chapter 7 of Kentucky’s Implementation Plan, and

reads, in part:

“(1) No person shall construct, modify, use, op-

erate, or maintain an air contaminant source or main-

tain or allow physical conditions to exist on property

owned by or subject to the control of such person,

resulting in the presence of air contaminants in the

atmosphere, unless a permit therefor has been issued

by the Commission and is currently in effect.”

Through the use of the permit system, Kentucky is

able to spell out the emission limitations, operating time re-

quirements, emergency episode requirements, testing, mon-

itoring, and record-keeping requirements under which each

air contaminant source is to operate. In this regard, it is

important to note that while the applicable emission stand-

ards are designed to meet the national ambient air quality

standards, compliance with emission standards in the ab-

sence of controls on operating time, monitoring and inspec-

tion, and emergency episodes, will not be effective in achiev-

ing the goals. Consideration must be given to the total

pollutant load in any area in order to set reasonable and

effective emission standards. As well as providing the nec-

essary inventory of pollution potential the permit system

enables Kentucky to insure that proper air pollution con-

trol equipment is installed, it is the mechanism through

which the Commonwealth is able to compel the production

of data concerning air contaminant sources. including the

ability to prescribe the monitoring techniques to be em-

ployed, and it is the only mechanism which allows the

Commonwealth to develop and review a source’s compliance

schedule and insure that schedule is followed. The permit

system constitutes the preventive arm of Kentucky’s air pol-

lution control program and is an effective tool for reduc-

ing air pollution from stationary sources as demonstrated

by the Affidavit of Harold G. Peters filed in the District

Court herein. [Pl. Ex. 1; Appendix, p. 117].

The significance of the permit system has also been

recognized by the Federal government. In the Federal regu-

lations inivially proposed by the Environmental Protection

Agency, the use of a permit system was a mandatory part

of all implementation plans. 36 Fed. Reg. 158 (August

14, 1971). Though this mandatory permit requirement

was deleted, the final ru’e adopted by the Environmental

Protection Agency require: each state to have the authority

to ‘obtain information necessary to determine whether air

pollution sources are in compliance with all applicabe

laws, regulations and standards, including authority to re-

quire recordkeeping and to make inspections and conduct

tests of air pollution sources.” 40 C.F.R. §$51.11(a) (5).

In Kentucky, these functions are implemented by use of

the permit system. If deprived of the use of this system,

the Commonwealth would be saddled with the impossible

burden of attempting ito monitor the facilities of the respon-

dents solely through periocic inspections. Moreover, since

these monitoring, inspection, and recordkeeping functions

are not emission standar:'s, they would presumably be

“procedural” requirement: under the rulings of the Courts

below. As such, they would be unenforceable by the State

and the Commonwealth would have to rely on the polluters

to iurn themselves in. This, despite the requirement of the

Environmental Protection Agency that such authority be

included in each State’s Implementation Pian.

In dealing with an almost identical provision of Ala-

bama law, the Court of Appeals For the Fifth Circuit

found:

“i]t is not only a part of the implementation plan but

appears to be the central mechanism by which the

Alabama plan provides for the gathering of informa-

tion and the enforceme..t of emission limitations nec-

essary to achieve air quality standards.” State of

Alabama v. Seeber, 502 F.2d. 1238, 1243 (1974).°

In so ruling that Court determined that the permit require-

ment was definitely a “requirement respecting control and

abatement of air pollution” and, therefore, was a require-

ment which must be met. This is correct. The only stand-

ard and requirement set forth in 42 U.S.C. §1857f. is that

the particular requirement be a “requirement respecting

control and abatement of air pollution.”

Petitioner submits that Kentucky’s permit require-

ment is, similarly, a “requirement respecting control and

abatement of air pollution.”” Certainly, it is a requirement

of State law with which all persons operating private air

contaminant sources in this Commonweath have had to

comply. The plain meaning of 42 U.S.C. §1857f. requires

such compliance by Federal facilities. Nowhere does this

section make a distinction between “substantive” and “pro-

cedural” requirements as has been urged by respondents and

accepted by the Courts below. In language of clear and

uncompromising generality, with no provision for excep-

tion, other than by affirmative action of the President of

the United States, the Congress has declared all Federal

3. The Opinion of the United States Court of Appeals For the

Fifth Circuit rendered October 14, 1974, State of Alabama v.

Seeber, 502 F. 2d 1238, (1974), is reproduced in its entirety

in Appendix D, pages 1d-27d, of the Supplemental Memo-

randum to the Petition for Writ of Certiorari filed in this

Court.

facilities and instrumentalities subject to state air pollu-

tion control requirements.

The Courts below and the respondents herein, would,

presumably, have preferred §1857f. set out a list of certain

requirements with which the facilities would be required

to comply. Because each possible requirement is not listed

specifically in the command to comply, respondents contend,

and the Courts below have ruled, that certain requirements

are not covered in a command covering State requirements

generally. However, the requirements which are to be met

are stated in §1857f.; they are “requirements respecting

control and abatement of air pollution,” without limitation.

Further, the Congress gave a clear indication of the scope

of such requirements in Section 116 of the Clean Air Act

Amendments of 1970, 42 U.S.C. §1857d-1. Examination

of this section clearly demonstrates that “requirements

respecting control and abatement of air pollution” involve

more than simply emission limitations as respondents con-

tend. In State of Alabama y. Sceber, supra, at 1245, 1246,

the Fifth Circuit Court of Appeals considered the argu-

ment advanced with respect to the scope of the applicable

requirements and the substantive-procedural dichotomy and

stated:

“Defendants seek to avoid the impact of §118 by en-

grafting upon it a substantive-procedural overlay.

They argue that the phrase ‘requirements respecting

control and abatement of air pollution’ means only

requirements such as emission standards and limita-

tions, which they label ‘substantive,’ and does not

include mechanisms, e¢.g., permit systems, for enforcing

these requirements. Having affixed these new labels,

defendants would have us infer that while federal

' agencies must, and will, comply with the ‘substantive,’

it was not intended that they be bound by the ‘proce-

dural,’ a term which in defendants’ construct is sub-

silentio pejorative, impliedly denigrating the Congres-

sionally-mandated mechanisms of enforcement to a

status of less dignity anl import. This recharacteriza-

tion of the statutory scheme is a semantical red her-

ring. It draws no sustenance from the Act itself. No

such limitation is apparent from the words of §118.

Moreover the language of §116 [42 U.S.C. §1857d-1]

is inconsistent with defendants’ reading of ‘require-

ments.’ There Congress used words identical to the

§118 ‘requirements’ phrase.

Except as otherwise provided . . . nothing in this

chapter shall preclude or deny the right of any

State or political subdivision thereof to adopt or

enforce (1) any standard or limitation respecting

emissions of air pollutants or (2) any require-

ment respecting control or abatement of air pol-

lution. ...

The ‘or’ in $116 is clearly disjunctive. Therefore,

contrary to the position of the defendants, ‘require-

ments’ must include more than emission standards or

limitations.

® This approach necessarily leads them to de-emphasize

the remainder of the phrase, which reads ‘to the same

extent that any person is subject to such require-

ments.’ ”’

In accepting and approving the substantive-procedur-

al distinction, the Courts below have effectively rendered

meaningless the provisions of §1857d-1. This is clearly

contrary to the rule of statutory construction requiring that

effect should be given to every part of a statute. As the

Court stated in Washington Market Co. v. Hoffman, 101

U.S. 112, 115, 116, 25 L. Ed. 782 (1879) :

“We are not at liberty to construe any statute so as

to deny effect to any part of its language. It is a car-

dinal rule of statutory construction that significance

and effect shall, if possible, be accorded to every word.

As early as in Bacon’s Abridgement, Section 2, it was

said that “a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sen-

tence or word shall be superfluous, void, or insignifi-

cant.’ This rule has been repeated innumerable times.

Another rule equally recognized, is, that every part of a

statute must be construed in connection with the whole,

so as to make all the parts harmonize, if possible, and

give meaning to each.”

The proper interpretation of 42 U.S.C. §1857d-1, giving

effect to both clauses, does much to elucidate the scope and

coverage of a “requirement respecting control and abate-

ment of air pollution” within the meaning of §1857f. As

shown by the Fifth Circuit’s consideration of this provision

in State of Alabama v. Seeber, supra, the only way to ration-

ally harmonize these sections is to conclude the phrase in-

cludes those requirements which the Court below character-

ized as “procedural” as well as the “substantive” provi-

sions.

The meaning of 42 U.S.C. §1857f. is, therefore, clear

and unambiguous both as to the nature and the scope of the

command it contains. The only other rationale beyond am-

biguity, which would necessitate an examination of the

legislative history would be if (1) the results of the plain,

uncompromising language would be absurd or (2) the pur-

pose of the statute would be thwarted. United States v.

Kats, 271 U.S. 354 (1926); Helvring v. Hammel, 311

U.S. 504 (1941). The result of the application of the plain

meaning of §1857f. would be neither absurd nor would it

thwart the purpose of the statute; on the contrary, it is

entirely consistent with the scheme of control envisioned

by the statute.

The goals of the Clean Air Act as a whole aye em-

bodied in Section 101(b) of the Clean Air Act Amend-

ments of 1970, 42 U.S.C. §1857(b):

“(b) The purposes of this title are —

‘(1) to protect and enhance the quality of the

Nation’s air resources so as to promote the public

health and welfare and the productive capacity of its

population ;”

‘(2) to initiate and accelerate a national research

and development program to achieve the prevention

and control of air pollution ;’

‘(3) to provide technical and financial assistance

to State and local governments in connection with the

development and execution of their air pollution pre-

vention and control programs; and

‘(4) to encourage and assist the development

and operation of regional air pollution control pro-

grams.’ ”

Clearly, then, one of the primary goals of the Act was to

develop a “program” designed to achieve the “prevention

and control of air pollution.” That the air pollution preven-

tion and control programs envisioned by the Act were

to be State programs is clearly illustrated by the findings

of the Congress embodied in Section 101 (a) of the Clean

Air Act Amendments of 1970, 42 U.S.C. §1857 (a):

“(3) that the prevention and control of air pollution

at its source is the primary responsibility of States

and local governments; and

(4) that Federal financial assistance and leadership

is essential for the development of cooperative Fed-

eral, State, regional, and local program to prevent

and control air pollution.”

These sections demonstrate the States are to have

primary responsibility in the area of air pollution and that

the Federal government is to provide financial assistance

and leadership in developing the State plans. In enacting

the Clean Air Act, as amended, the Congress of the United

States set out and prescribed a carfully conceived plan

through which the control and prevention of air pollution

was to be accomplished; a plan whose core concept was

the development of State control and prevention programs

utilizing State plans designed to implement minimum Na-

tional standards of air quality. The specific mechanisms to

be employed in this Congressional plan set out with parti-

cularity in other sections of the Act. In Section 107, of the

Clean Air Act Amendments of 1970, 42 U.S.C. §1857c-2,

the Congress reaffirms the State’s responsibility and directs

that each shall prepare a plan for meeting these respon-

sibilities:

“Sec. 107. (a) Each State shall have the primary

responsibility for assuring air quality within the entire

geographic area comprising such State by submitting

an implementation plan for such State which will

specify the manner in which national primary and

secondary ambient air quality standards will be ach-

ieved and maintained within each air quality control

region in such State.”

The requirements for these “implementation plans”

were set out in Section 110, of the Clean Air Act Amend-

ments of 1970, 42 U.S.C. §1857c-5. The basic requirement

contained in Subsection 1857c-5 (a) (1), was that the

plan “provide for implementation, maintenance, and en-

forcement” of both the primary and secondary standards

of ambient air quality promulgated by the Administrator

pursuant to Section 109 of the Clean Air Act Amendments

of 1970, 42 U.S.C. $1857c-4. Specific requirements for

these plans are contained in Subsection 1857c-5 (a) (2).

With respect to these requirements this Court stated in

Train v. National Resources Defense Council, 43 U.S.

L.W. 4467, 4469 (U.S., April 16, 1975):

“In providing for such attainment, a State’s plan

must include ‘emission limitations, schedules, and

timetables for compliance with such limitations’; it

must also contain such other measures as may be nec-

essary to insure both timely attainment and subsequent

maintenance of national ambient air standards.”

Among these “other measures” necessary to assure attain-

ment and maintenance of the standards, it was required

that the Plan:

“(C) ... includes provision for establishment and

operation of appropriate devices, methods, systems,

and procedures necessary to (i) monitor, compile,

and analyze data on ambient air quality and, (ii)

upon request, make such data available to the Ad-

ministrator.

* * od

(F) ... provides (i) necessary assurances that the

State will have adequate personnel, funding, and au-

thority to carry out such implementation plan, (ii)

requirements for installation of equipment by owners

or operators or stationary sources to monitor emis-

sions from such sources, (iii) for periodic reports on

the nature and amounts of such emissions; (iv) that

such reports shall be correlated by the State agency

with any emission limitations or standards established

pursuant to this Act, which reports shall be available

at reasonable times for public inspection; and (v)

for authority comparable to that in section 303, and

adequate contingency plans to implement such au-

thority.” 42 U.S.C. §1857c-5 (a) (2).

Clearly, these are requirements designed to give assurance

that implementation plans adopted by the States are ade-

quate to enforce the standards and to implement the neces-

sary controls on air contaminant sources to accomplish the

goals and purposes of the Act. The concern of Congress

that such plans contain adequate assurance of enforcement

capability shows they understood that the mere existence

of standards is utterly meaningless without a means of ad-

ministering and enforcing these standards; their concern

was that the States actually be able to implement the

standards and achieve the goals of the Act. This is the

Congressional “plan;” the “plan” for achieving the goals

of the Act and to provide for the enhancement of the quality

of this Nation’s air.

Application of the plain meaning of 42 U.S.C. §18571.

is entirely consistent with the development and implementa-

tion of State plans for the control and prevention of air

pollution at its source. This is not true of the interpreta-

tion offered by the Courts below. In making the distinc-

tion between those elements of Kentucky’s Implementation

Plan which were characterized as substantive and procedur-

al, these Courts not only denied the State control over all pol-

ution sources but have also ruled contrary to the principle of

statutory construction which dictates that where a parti-

cular provision appears in a statute, the failure to include

that same provision in another section will not be deemed

inadvertent. 2 J. Sutherland, Statutory Construction, Sec.

4915 (3 Ed. 1943).

In areas where the Congress desired to exempt Federal

facilities from compliance with a State requirement or

where it wished to preclude State regulation totally, it con-

sistently did so by the use of specific exclusionary language.

For example, 42 U.S.C. §1857c-6 (c) (1) allows the En-

vironmental Protection Agency Administrator to delegate

to the States the power to enforce performance standards

for new stationary sources “except with respect to new

sources owned or operated by the United States.” 42

U.S.C. §1857c-7 (d) (1) contains authority for the Ad-

ministrator to delegate his authority to implement and en-

force emission standards for hazardous air pollutants “ex-

cept with respect to stationary sources owned or operated

by the United States.” Such specific exclusion from State

regulation is also found in 42 U.S.C. §1857c-9 (b) (1),

wherein the Administrator has authority to delegate his

authority respecting inspections, monitoring, and entry

“except with respect to new sources owned or operated by

the United States.” The States are similarly precluded by

specific statutory language in 42 U.S.C. §1857f-6a from

adopting or attempting to enforce any standard relating to

the control of emissions from new motor vehicles not

adopted prior to March 30, 1966. Had Congress intended

to exempt existing stationary sources operated by the Fed-

eral government from all State requirements except “ap-

plicable standards of air quality and emissions,” it could

easily have done so by the use of similar exclusionary

language. No such language appears in 42 U.S.C. §1857f.,

but rather the Courts below have rewritten the statute

to create such an exemption. This is not the proper func-

tion of the judiciary.

As was stated in 62 Cases, More or Less, Each Con-

taining Six Jars of Jam vy. United States, 340 U.S. 593,

596 (1951):

“fo]ur problem is to construe what Congress has

written. After all, Congress expresses its purpose by

words. It is for us to ascertain — neither to add nor

subtract, neither to delete nor distort.”

Moreover, the applicable exemptive process is clearly set

out in 42 U.S.C. §1857f. The Federal government can

obtain exemptions from any requirement of a State Imple-

mentation Plan when the President of the United States

determines such an exemption to be in the paramount in-

ss e860 ee ee ee es +

terest of the Nation. This is the only exemptive process

provided for or authorized by 42 U.S.C. §1857f.; if any

other exemption had been intended for existing Federal

sources, the Congress would have added such exclusionary

language as was uniformly done in all sections dealing with

new Federal sources.

After ruling that the Alabama permit requirement

was applicable to Federal facilities, the Fifth Circuit, in

State of Alabama v. Seeber, supra, commented on the con-

sistency of this position with the Act as a whole:

“The general scheme that emerges from the Act as a

whole appears to be that responsibility and authority

for enforcement with respect to federal facilities is

granted to the states for sources with respect to which

state implementation plans establish the criteria for en-

forcement, and is granted to EPA in those instances

(i.e, new sources and hazardous pollutants) where

EPA establishes the criteria. The scheme is a reason-

able one. Because of variations in air quality between

States and regions the emissions criteria established

under state plans may vary considerably, thus making

enforcement by EPA against scattered federal facili-

ties administratively difficult. The new sources and

hazardous pollutant criteria established by EPA, how-

ever, are not tied to air quality standards and may,

therefore, vary little or not at all by area, making

EPA enforcement against federal facilities more con-

venient.” State of Alabama v. Seeber, supra, at 1244.

However, the Sixth Circuit Court of Appeals did not

choose to enter into any such analysis of the consistency of

its ruling with the Act as a whole, but rather supports it

Opinion with a reading of the legislative history which the

Fifth Circuit termed “strained” (State of Alabama, supra,

at 1246) and the petitioner herein regards as incomplete.

Notable in its absence from the Sixth Circuit’s discussion

of legislative history is any consideration of the provisions

of prior law. Petitioner submits that in seeking the purpose

of a statutory enactment, particularly where the enactment

is an amendment of existing law, it is important to consider

the provision which was changed.

Prior to the enactment of Section 118 of the Clean Air

Act Amendments of 1970, 42 U.S.C. §1857f., the Congress

had required a program of voluntary cooperation in the

area of air pollution by Federal agencies, embodied in Sec-

tion 111 of The Air Quality Act of 1967, P.L. 90-148:

“COOPERATION BY FEDERAL AGENCIES TO

CONTROL AIR POLLUTION FROM FEDERAL

FACILITIES

Sec. 111 (a) It is hereby declared to be the intent of

Congress that any Federal department or agency hav-

ing jurisdiction over any building, installation, or

other property shall, to the extent practicable and

consistent with the interests of the United States and

within any available appropriations, cooperate with

the Department of Health, Education, and Welfare

and with any air pollution control agency in prevent-

ing and controlling the polution of the air in any area

insofar as the discharge of any matter from or by

such building, installation, or other property may

cause or contribute to pollution of the air in such

area.”

What is immediately apparent from this provision is that

in enacting $1857f., the Congress intended a radical change

from the provisions of previous law; an examination of

these two provisions clearly indicates that Congress wished

to depart from an ineffective program of voluntary co-

operation and move instead to a program of mandatory

compliance. If, in making such a change, the Congress had

desired to make only compliance with “emission standards

or limitations” mandatory, it need only have so stated,

Obviously, this was not the Statement made in Section 118,

and, moreover, this was not the Statement made in either

the Senate or the House version.

The Senate version of this section would have direct-

ed each Federal agency to “comply with the requirements of

this Act in the same manner as any other person would so

comply. ...” * The meaning of this phrase does not be-

come clear until the complete statutory scheme is examined

to determine the manner of compliance by other persons

and the requirements which they must meet. Similarly,

The House version would have required compliance with

“applicable Federal, State, interstate, and local emission

standards and with the purposes of this Act....”° As

shown earlier, one of the primary purposes of the Act is to

provide assistance to the States and local governments in

the development and execution of their air control pro-

grams, (42 U.S.C. §1857(a)), a program which, in Ken-

tucky, includes a permit requirement. In neither instance

is there a simple statement that these facilities need only

comply with “emission standards and limitations.” Both

4. S. 4958, 91st. Congress, 2d. Session, Sec. 116 (1970).

5. H.R. 17255, 91st. Congress, 2d. Session, Sec. 111 (1970).

versions raise questions concerning additional require-

ments relative to “the purpose of this Act,” and the man-

ner of compliance by “any other person.” However, the

District Court and the Sixth Circuit Court of Appeals

herein each conclude based on this authority that “require-

ments respecting control and abatement of air pollution”

are nothing more than “emission standards or limitations.”

(Appendix, p. 129 and Appendix, p. 157). This conclu-

sion is clearly not warranted; as this Court stated in

Gemsco, Inc. v. Walling, 324 U.S. 244, 260, 89 L.Ed. 921,

933 (1945):

“The plain words and meaning of a statute cannot be

overcome by legislative history which, through strain-

ed processes of deduction from events of wholly ambi-

guous significance, may furnish dubious bases for in-

ference in every direction.”

See also: Ex Parte Collett, 337 U.S. 55, 69, S.Ct. 944,

93 L.Ed. 1207 (1949).

The only thing that is clear from an examination of

the legislative history of 42 U.S.C. §1857f. is, therefore, a

Congressional desire to make compliance mandatory. As

discussed in State of Alabama v Seeber, Supra, at 1245:

“In strengthening the Act by replacing that section

with present §118 Congress sought to depart from

the policy of voluntary compliance and make emission

limitations enforceable against federal facilities. With

respect to existing sources the Act places upon the

states primary responsibility for establishing and en-

forcing emission limitations, and Alabama, like many

other states, relies on a permit system as its method

of enforcemetit as well as a method of generating

information concerning emissions. To deny the ap-

plicability to federal facilities of that permit require-

ment would be tantamount to a return to the Con-

gressionally-rejected policy of voluntary compliance

by federal facilities.© Moreover a holding that §118

does not embrace permit systems would represent a

retreat from the provisions of prior $111. That sec-

tion allowed the Secretary of HEW to establish classes

of pollution sources for which federal facilities could

be required to obtain a permit from the Secretary.

Since §118 does not distinguish between federal and

state requirements, holding state permit systems out-

side the scope of §118 would imply the same conclu-

sion with respect to any federal permit system. The

result would be that the Administrator of EPA (who

assumed responsibility for air pollution control activi-

ties when EPA was established) could not under the

stronger §118 do what the Secretary of HEW was

explicitly entitled to do under the prior §111.

*. Defendants argue that the state could seek to enforce

its emission limitations by resort to court actions

under the ‘citizens suits’ provision, §304 [42 U.S.C.

§1857h-2] of the Act. Irrespective of the merits of

this suggestion, we believe that §304 provides little

guidance to determining the Congressional purpose

in enacting §118....”

The Fifth Circuit later concludes “with regard to this

question of legislative history, except to the extent that it

reveals the Congressional purpose discussed earlier, is

ambiguous. Confronted with this ambiguity, we rely on

the words of §118, the scheme of the Act as a whole, and

what we discern to be the Congressional purpose, as the

best guides to interpreting the section.” (State of Alabama

v. Seeber, supra, at 1247).

It has been, and is, petitpioner’s contention that an

examination of the legislative purpose of the Clean Air Act

Amendinents of 1970, a tracing of the “scheme” for achiev-

ing those purposes through the Act as a whole, and the

plain, unambiguous language of §42 U.S.C, §1857f., lead

unalterably to the conclusion that the requirements of a

State’s Implementation Plan, adopted pursuant to Section

110 of the Clean Air Act Amendments of 1970, 42 U.S.C.

§1857c-5, are “requirements respecting control and abate-

ment of air pollution” within the meaning of §1857f. As

such, they are requirements with which Federal facilities

“shall comply” under the mandate of 42 U.S.C. §1857f.

The question in this case is not whether a particular State

requirement may be classified as procedural or substantive,

but rather whether that requirement is a “requirement

respecting control and abatemnt of air pollution.” Section

118 of the Clean Air Act Amendments of 1970, 42 U.S.C.

§1857f., does not make any distinction as to “procedural”

or “substantive” requirements, either is useless without the

other, but rather directs that Federal agencies and instru-

mentalities “shall comply with ... State. . . requirements

respecting control and abatement of air pollution” The

permit requirements embodied in Section 5 of the Ken-

tucky Administrative Regulation AP-1 and in Chapter 7 of

the Kentucky Implementation Plan, is clearly such a re-

quirement in Kentucky. The decisions of the Courts below

which granted all Federal facilities blanket judicial ex-

emption from the requirements of Kentucky’s Impementa-

tion Plan do violence to the carefully conceived regulatory

scheme of Congress, a scheme in which the States were

given primary enforcement responsibility.

There can be no implementation of the standards of

air quality if these standards stand alone without a mech-

anism of enforcement to assure they are met by all

sources. It is just such a mechanism which was provided

for in 42 U.S.C. §1857c-5. The provisions of the imple-

mentation plans adopted and approved in accordance with

this section are absolutely necessary to the achievement

of the goals of the Clean Air Act, as amended, and these

are the “requirements respecting the control and abatement

of air pollution” which the Congress made applicable to

Federal facilities and instrumentalities in Section 118 of

the Clean Air Act Amendments of 1970, 42 U.S.C. §1857f.

ARGUMENT II

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERRED IN FINDING THAT AIR CONTAMINANT

SOURCES OWNED, OPERATED, OR CONTROLLED BY

THE FEDERAL GOVERNMENT ARE SUBJECT ONLY

TO ACTIONS UNDER SECTION 304 OF THE CLEAN AIR

ACT AMENDMENTS OF 1970, 42 U.S.C. §1857h-2, AND

THIS RULING PRESENTS A SIGNIFICANT HIND-

RANCE TO THE EFFECTIVE IMPLEMENTATION OF

THE STANDARDS OF AIR QUALITY AND THE AC-

COMPLISHMENT OF THE GOALS OF THE CLEAN AIR

ACT, AS AMENDED.

The Court of Appeals For the Sixth Circuit erred

in its construction of the Clean Air Act, as amended.

particularly with respect to Section 118 and Section

304 of the Clean Air Act Amendments of 1970, 42 U.S.

C. §1857f. and §1857h-2 and the interrelation of those

sections. The error in the reasoning of the Court be-

low is reflected in its conclusion that:

“Congress intended that federal facilities comply

with the emission standards and limitations of the

state plan where they are located. Such com-

pliance is mandated by Section 118 and made en-

forceable by legal action pursuant to Section 304.

By defining the term ‘emission standard or limita-

tion’ broadly in Section 304(f) Congress provided

a means of enforcing all of the substantive pro-

visions of a state plan, for prevention as well as

after-the-fact violation.” [Appendix, 157, 168].

In this statement, the Court below has ignored

the fact that 42 U.S.C. §1857f. does not mandate com-

pliance with the “substantive provisions of a state

plan,” but rather requires compliance with State “re-

quirements respecting control and abatement of air

pollution.” Further, it is unnecessarily strained and

circuitous to say compliance with “substantive pro-

visions of a state plan” is “mandated by Section 118

and made enforceable by legal action pursuant to Sec-

tion 304” since 42 U.S.C. §1857h-2 itself quite clearly

“mandates” compliance with such requirements and

provides for such legal action completely independent

of 42 U.S.C. $1857f. This section, 42 U.S.C. §1857h-2,

provides, in pertinent part:

“Sec. 304. (a) Except as provided in subsection

(b), any persons may commence a civil action

on his own behalf—

(1) against any person (including (i) the

United States, and (ii) any other governmental

instrumentality or agency to the extent permitted

by the Eleventh Amendment to the Constitution)

who is alleged to be in violation of (A) an emission

standard or limitation under this Act or (B) an

order issued by the Administrator or a State with

respect to such a standard or limitation. or

(2) against the Administrator where there

is alleged a failure of the Administrator to perform

any act or duty under this Act which is not dis-

cretionary with the Administrator.

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an em-

mission standard or limitation, or such an order,

or to order the Administrator to perform such act

or duty, as the case may be.

* . *

(f) For purposes of this section, the term

‘emission standard or limitation under this Act’

means—

(1) a schedule or timetable of compli-

ance, emission limitation, standard of perform-

ance or emission standard, or

(2) a control or prohibition respecting

a motor vehicle fuel or fuel additive.

which is in effect under this Act (including a re-

quirement applicable by reason of section 118) or

under an applicable implementation plan.”

It is clear from these provisions that suits brought

under §1857h-2 are strictly limited to violations of

compliance schedules, emission standards, and stan-

dards of performance and may be maintained inde-

pendently of §1857f. Further, no mention is made of

any other requirements which may be contained in

implementation plans. It is a well established rule of

this Court, followed numerous times, that every pro-

vision of a statute is to be construed, if possible, so

as to give it operative meaning and a corollary that no

section of a statute should be given a construction

which will render it redundant or meaningless where

another interpretation will give it effect. In making

the determination that the State may enforce only

those parts of its implementation plan deemed “sub-

stantive provisions, "the Courts below have rendered

42 U.S.C. §1857f. a mere restatment of 42 U.S.C.

§1857h-2 in contravention of this principle of construc-

tion.

6. Washington Market Co. v. Hoffman, 101 U.S. 112, 25 L.Ed.

782 (1879): Jarecki v. G. D. Searle & Co., 81 S.Ct. 1579, 367

U.S. 303, 6 L.Ed. 2d. 859 (1961); Weinberger v. Hynson,

Westcott & Denning, Inc., 93 S.Ct. 2469 (1973).

As the title, “Citizen Suits,” implies, the primary

purpose of §1857h-2 is to authorize the participation by

private citizens, acting on their own behalf, in the en-

forcement of the standards set forth in the Act and the

implementation plans. The legislative history of this

provision clearly demonstrates that the intent was to

extend enforcement capability to private individuals,

not to limit or define the extent of the State’s ability

to enforce their implementation plans. This may be

demonstrated by the comments of the drafters of this

provision:

Senator Cooper, Congressional Record, Volume

116, Part 24, p. 33117:

“The committee bill also breaks new ground in

extending public participation, an essential ele-

ment throughout the act, to enforcement proceed-

ings. In section 304, the bill proposes to grant

jurisdiction to the Federal district courts to hear

charges of violation of particular provisions of the

act brought by citizens acting in their own be-

half.”

Senator Muskie, Congressional Record, Volume

116, Part 24, p. 33103:

“What we are talking about here is a judicial way

for citizens to enforce the provisions of this act.

May I make another point about it, that before

any citizen can bring an action, he is required to

notify the enforcement agency concerned of his

intent to do so, and the specific alleged violation

which he has in mind. In other words, the idea is

to use citizens to trigger the enforcement mechan-

ism. If that enforcement mechanism does not re-

spond, then the citizen has the right to go to

court.”

Senator Spong, Congressional Record, Volume

116, Part 24, p. 32919:

“It is not our intent to substitute citizens suits for

the enforcement efforts of the responsible admini-

strative agencies. Rather, we intend the provision

to complement and encourage the abatement ac-

tivities of governmental agencies.”

Senator Muskie, Congressional Record, Volume

116, Part 24, p. 32927:

“First of all, a citizen suit can be brought only to

enforce the provisions of the act or the require-

ments that are established as a result of the opera-

tions of the act. In other words. a citizen suit is

limited to the right to seek the enforcement of the

provisions of the act.

Second, before bring [sic] suit, there is a require-

ment in this provision that the citizen bring his

intention to bring suit to the attention of the local

enforcement agency, the thought being that he

might trigger administrative action to get the

relief that he might otherwise seek in the courts.”

Particularly noteworthy in these comments is the

relation seen between primary administrative action

and citizens suits. It is apparent that these Senators

did not equate such administrative action with judicial

relief under 42 U.S.C. §1857h-2. Rather, it was an-

ticipated that where a problem was brought to the at-

tention of the responsible administrative agency, the

necessity of court action under §1857h-2 would often be

eliminated by the application of administrative reme-

dies under that agency’s primary enforcement powers.

This underscores the basic error which has been

made by the Courts below in their failure to recognize

that the Clean Air Act, as amended, is primarily a

regulatory statute. The Act is geared to the regula-

tion, control, and prevention of air pollution at its

source; it provides for administrative action, the gath-

ering and assessing of data, the development, dissemi-

nation, and use of new technology, and it directs the

formulation and employment of implementation plans

designed to acheive and maintain the National stan-

dards of air quality. However, notwithstanding the re-

quirements of the Act that the States are to formulate

and adopt comprehensive implementation plans and

despite the provisions of the Act specifying the powers

and authorities which these plans are required to con-

tain to assure that the plans can be effectively carried

out, the Courts below conclude that the standards are

to be “implemented” by the use of legal action under

the Citizen Suit provision of the Act, 42 U.S.C. 1857h-2.

This manner of implementation is not based on

regulation. prevention, and control as was intended

by the Congress but rather relies on an entirely dif-

ferent principle reflecting a different philosophy and

approach; the penal principle of arrest, trial, and pun-

ishment.

Actions under 42 U.S.C. §1857h-2 are strictly

limited to cases of a violation of a compliance schedule,

emission standard, or a standard of performance.

While an action to enjoin further violation may be

perfectly appropriate, it bears little or no relation to

the concepts of control and prevention, the functions

which the State is charged with carrying out. More-

over, the necessity of an abatement proceeding would

be ample evidence that the State’s program of pre-

vention and control was ineffective. The rulings of

the Courts below and the position maintained by the

respondents herein effectively reduce this Common-

wealth to the role of policeman, catching violators and

bringing them to justice in the courts. This is not re-

flective of the Congressional plan for the implementa-

tion of the standards of the Act.

Accomplishment of the goals of the Act requires

planning and control over all sources of air pollution,

for it is a fact of life in the United States today that

few of the major sources of air pollution, including

facilities operated by the Federal Government as well

as private enterprise, are currently in compliance with

all minimum standards necessary to protect human

health. In the face of this problem, the rulings of the

Courts below place the implementation of these stan-

dards under a system much better suited to dealing with

instances of deviation from an accepted norm. What

is needed in the area of air pollution control, and what

was provided by the Congress in the Clean Air Act,

as amended, is a system which is capable of raising the

National norm to a new and higher standard.

In enacting 42 U.S.C. 1857£. it was the intent of

Congress to grant the States a right commensurate

with their responsibilities; the right to prevent and

control air pollution at its source and to that end to

exercise the requisite control over all sources within

their boundaries. 42 U.S.C. 1857h-2 does not provide

this requisite control and does not provide an alterna-

tive through which the States can meet their responsi-

bilites under the Act, nor was it intended to. As stated

by the Court of Appeals for the Fifth Circuit in

State of Alabama v. Seeber, 502 F.2d. 1238, 1248

(1974): |

“The ‘Citizens Suits’ heading of §304, the fact that

§304(d) provides for awarding attorney fees, and

the legislative history of the section demonstrate

that the congressional focus in enacting that pro-

vision was on suits by private parties. Conse-

quently, we believe that §304 cannot be properly

read as implying anything about the ability of

states to sue under §118.”

The ability to bring suit for a violation of a com-

pliance schedule is no substitute for the ability to par-

ticipate in the formulation of that schedule or for a

prior review of the control strategies and equipment

to be employed. The rulings of the Courts below have

effectively precluded the efficient employment of this

Commonwealth’s _ implementation plan, a plan which |

Congress intended to be the primary ‘mechanism

through which the National primary and secondary

standards of ambient air quality were to be achieved

and maintained in this State. In meeting the State’s

responsibilities under the Act, Kentucky must rely,

not on the plan required in the Act, but on the good

intentions of the polluters and the hope that they will

provide the State with enough information to support

an abatement action in cases of non-compliance. This

is clearly contrary to the intent of Congress and does

not provide for the prevention and control of air pollu-

tion and the planned implementation of the air quality

standards which the Clean Air Act, as amended, was

designed to achieve.

ARGUMENT III

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERRED IN RULING THAT THIS ACTION WAS BARRED

BY THE DOCTRINE OF SOVEREIGN IMMUNITY AND

BY THE SUPREMACY CLAUSE OF THE UNITED

STATES CONSTITUTION, ARTICLE VI, CLAUSE 2.

A. SUPREMACY CLAUSE

The reliance of the Court of Appeals For the

Sixth Circuit on the Supremacy Clause of the United

States Constitution in this action is misplaced and in

error. (Appendix 157, 164, 165) There are at least

three reasons why the Supremacy Clause is inapposite

herein. First, Section 118 of the Clean Air Act Amend-

ments of 197C, 42 U.S.C. §1857£., expresses a clear Con-

gressional waiver and specifically subjects Federal

facilities to State regulation. Second, the provisions

of Kentucky’s Implementation Plan have been Feder-

ally approved and published in the Federal Register’

and are enforceable requirements of Federal law. Third,

application of the Supremacy Clause in this action is

contrary to the policy supporting the rule since the pro-

visions of Kentucky’s Implementation Plan do not

frustrate Federal law, the evil against which the Su-

premacy Clause protects.

The power of Congress to waive the immunity of

‘the Federal government under the Supremacy Clause

is clear. As was stated in Mayo v. United States, 319

USS. 441, 446, 63 S.Ct. 1137, 1140, 87 L.Ed. 1504, 1508

(1943) : |

“It lies within Congressional power to authorize

regulation, including taxation, by the state of fed-

eral instrumentalities.”

7. Kentucky’s Implementation Plan was originally approved

on May 31, 1972. 37 Federal Register 10842. This approval

was vacated in the case of Buckeye Power Co., et al v.

EPA, 481 F.2d. 162 (6 CA, June 28, 1973). The Kentucky

Plan was resubmitted and published by the Administrator

of Environmental Protection Agency as proposed rule mak-

ing on March 19, 1974. 39 Federal Register 10277. On

August 15, 1974, the Administrator of Environmental Pro-

tection Agency published his approval of the re-submitted

Kentucky Plan with one exception not relevant to the issues

herein. 39 Federal Register 29357.

In this case, the Corigress has enacted such a waiver.

In enacting 42 U.S.C. §1857f. the Congress has declared

clearly, explicitly, and most affirmatively, that Feder-

al facilities “shall comply” with State air pollution re-

quirements:

“Each department, agency, and instrumentality of

the exécutive, legislative, and judicial branches

of the Federal Government (1) having jurisdiction

| over any property or facility or (2) engaged in any

* _ aetivity resulting, or which may result, in the dis-

charge of air pollutants, shall comply with Feder-

al, State, interstate, and local requirements fe-

specting control and abatement of air pollution

to the same extent that amy person is subject to

such requirements.” 42 U.S.C. §1857f.

It is difficult to imagine how Congress could have

made a more affirmative declaration that the facilities

of the Federal government were subject to State regu-

lation than was made in this section. The uncompro-

mising and unlimited language employed leaves no

room for discretion; if the requirement is a “require-

ment respecting control and abatement of air pollu-

tion,” it is a requrement to which Federal facilities are

subject. As discussed more fully in Argument I of

this Brief, the permit requirement contained in Ken-

tucky’s Implementation Plan is definitely a require-

ment respecting control and abatement of air pollu-

tion.

In the case of State of Alabama vy. Seeber, 502 F.

2d. 1238, 1243 (1974), the Court of Appeals for the

Fifth Circuit construed this language and concluded:

“The phrase ‘shall comply with .. . State. . . re-

quirements respecting control and abatement of

air pollution to the same extent that any person is

subject to such requirements’ effectively conveys

a Congressional intent that federal facilities are

to be treated equally with private facilities in the

scheme of control established by the Act. Recog-

nizing that in particular instances such treatment

might prove inconsistent with the national inter-

est, the section provides for executive exemption

from any requirement.”

Having so concluded, the Court of Appeals For the

Fifth Circuit ruled:

“Tt is on the proper interpretation of §118 that we part

company with the Sixth Circuit. For the reasons ex-

plicated in Part I, supra, we believe that §118 does em-

brace the Alabama permit requirement. Having reach-

ed this conclusion, the Supremacy Clause is applicable

because Congress has authorized subjecting federal

facilities to the State regulation involvd. ‘It lies with-

in Congressional power to authorize regulation...

by the state of federal instrumentalities.’ Mavo v.

United States, 319 U.S. 411, 446, 63 S.Ct. 1137, 1140,

R7 T..Fd. 1504. 1508 (1948). Section 1IR adequately

meets the requirement that Congress ‘affirmatively

declare its instrumentalities or property subject to

[state] regulation. .. .’ Id. at 448, 63 S.Ct. at 1141,

-- $7 L.Ed. at 1509." State of Alabama v. Seeber, supra;

at 1247, 124B,.--20.. 2056 %. - Jases toidth

Similarly, the Court of Appeals For the Ninth Circuit

recently ruled that a virtually identical provision of the

Federal Water Pollution Control Act of 1972, 33 U.S.C.

$1251 et. seq., contained such a waiver of Federal im-

munity under the Supremacy Clause. In construing Sec-

tion 313 of that Act, 33 U.S.C. §1323 in the case of

California v. EPA, 7 ERC 1667, 1671, (9 CA, Feb. 13, 75),

the Court of Appeals Por the Ninth Circuit ruled:

“Having determined that Congress had the power to

8. 33 U.S.C. § 1323, reads as follows: .

‘‘Each department, agency, or instrumentality of the execu-

tive, 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 or runoff of pollutants shall

comply with Federal, State, interstate, and local require-

ments respecting control and abatement of pollution to the

same extent that any person is subject to such require-

ments, including the payment of reasonable service

charges. The President may exempt any effluent source of

any department, agency, or instrumentality in the executive

branch from compliance with any such a requirement if he

determines it to be in the paramount interest of the United

States to do so; except that no exemption may be granted

from the requirements of section 1316 or 1317 of this title.

No such exemptions shall be granted due to lack of ap-

propriation unless the President shall have specifically re-

quested such appropriation as a part of the budgetary pro-

cess and the Congress shall have failed to make available

such requested appropriation.”

compel agencies within its ‘exclusive’ legislative jur-

isdiction to seek state discharge permits, we now con-

sider whether it acted in a sufficiently. unequivocal

manner for us to conclude that it clearly intended to

do so. See, e.g., United States v. King, 395 U.S. 1, 4

(1969). We find the language of waiver sufficiently

clear amd free from ambiguity.”

Having so ruled, the Court goes on to state:

. “Section 313 also requires federal agencies to comply

with state pollution control requirements ‘to the same

extent that any person is subject to such requirements.’

Hence, the extent of the federal agency compliance

duty can omly be gauged from the type of program

that section 402 of the Act demands that states insti-

tute for private dischargers.” California v. EPA,

supra, at 1672. |

Further, with respect to the mature and scope of the re-

quirements imposed under Section 313 of the Federal

Water Pollution Contrel Act of 1972, 33 U.S.C. $1323,

the Court concluded:

“[I]t would appear that the reference in Section 313

to federal agency compliance with state ‘requirements,’

was purposeful and artistic, and was meant to refer

to those requirements which state administrative agen-

cies mut adopt under their express Section 402 au-

thorizations.” California v. EPA, supra, at 1673.

Section 402 of the Federal Water Pollution Control

Act of 1972, 33 U.S.C. $1342, sets forth the requirements

which must be incerporated into a State program before

the Administrator of the Environmental Protection Agency

may delegate that State the authority to administer the

National Pollutant Discharge Elimination System. These

requirements relate the State’s authority to implement and

enforce the standards established under this Act and in this

regard serves the same function as does Section 110, 42

U.S.C. §1857c-5, with respect to the Cleam Air Act Amend-

ments of 1970. The rulings of the Ninth Circuit on the

relation of Section 313 and Section 402 of the Federal

Water Pollution Control Act of 1972, 33 U.S.C. §1323

and 33 U.S.C, §142, are, therefore, directly applicable to

the relation of Section 118 and Section 110 of the Clean Air

Act Amendments of 1970, 42 U.SC §1857f and 42 U.S.C.

§1857c-5, and are supportive of the conclusion that the re-

quirements of Kentucky’s Implementation Plan, adopted

pursuant to §1857c-5 are applicable to Federal facilities

under §1857f.

The ability of Congress to employ broad and uncom-

promising language in waiving Federal Supremacy and

subjecting Federal facilities to State regulation was also

established in Baltimore National Bank v. State Tax Com-

mission, 297 U.S. 209 (196). The issue presented in that

case was the power of a state to tax shares in a national

bank which were held by an instrumentality of the Federal

government. The Court held that the State did have such

a power, and based its holding on the fact that Congress

had consented to this taxation by statute. The language of

this statute indicated that “all” the shares of a national

banking association whose principal place of business is

within the limits of a State are subject to taxation at the

discretion of that State's legislature. From this, the Court

reasoned that shares held by an agency of the Federal gov-

ernment were taxable. In the instant case, the language

of 42 U.S.C. §1857f. is even more explicit in indicating the

consent of Congress to waive any insulation that a Federal

facility might possess under the Supremacy Clause; §1857f.

expressly provides that the Federal facilities are subject to

local “requirements” in air pollution matters. This is a

clear and unequivocal waiver of any Federal primacy

under the Supremacy Clause.

The Supremacy Clause does not pose a bar to this

action for the further reason that the requirements of

Kentucky’s Implementation Plan are enforceable as Fed-

eral, as well as State, law. The Kentucky Plan was adopted

in accordance with Section 110 of the Clean Air Act

Amendments of 1970, 42 U.S.C. §1857c-5, and was sub-

mitted to the Administrator for approval. The Plan was

subsequently approved, with minor exceptions, and was

published in the Federal Register by the Environmental

Protection Agency’, and became a regulation enforceable

by the Administrator under Federal law. The relationship

between Federal! law and a State implementation plan was

discussed in the case of Getty Oil Company (Eastern Op-

erations) v. Ruckelshaus, 342 F.Supp. 1006 (D. Del. 1972),

modified 467 F.2d 349 (3rd. Cir. 1972), cert. denied, 409

U.S. 1125 (1973). That case dealt with an oil company’s

obligation under a compliance schedule that was part of a

local regulation. The United States District Court in Dela-

ware concluded:

“In the terminology of the statute and regulations,

9. 39 Federal Register 29357. See footnote (7) on page 49

of this Brief.

Delaware’s Regulation IV is a part of the compliance

schedule incorporated in Delaware’s Implementation

Plan. It has received federal approval and violation

thereof is a federal crime enforceable by the Administ-

rator. . . .” 342 F.Supp. 1006, 1017. (Emphasis

Added).

Refusal to comply with the permit procedures contained in

Kentucky's Implementation Plan is, therefore, a violation

of Federal, as well as State, law. As was discussed by the

Administrator of the Environmental Protection Agency in

the Guidelines for Implementation Plans:

“Upon approval by the Administrator, a State plan is

enforceable by the Administrator under the Clean

Air Act. All approved provisions relating to attain-

ment and maintenance of national standards, includ-

ing approved rules and regulations, are subject to such

enforcement action. Where a State plan includes

regulations designed to attain and maintain air quality

better than that required by national standards, such

regulations are subject to enforcement action under

the Clean Air Act unless they are separate from

those necessary for attainment and maintenance of

national standards.”

37 Fed. Reg. 10846 (May 31, 1972).

Section 113 of the Clean Air Act Amendments of

1970, 42 U.S.C. §1857c-8, reads, in part:

“Sec. 113. (a) (1) 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, the Administrator

shall notify the person in violation of the plan and the

State in which the plan applies of such findings. If

such violation extends beyond the 30th day after the

date of the Administrator’s notification, the Admin-

istrator may issue an order requiring such person to

comply with the requirements of such plan or he may

bring a civil action in accordance with subsection (b).”

This section demonstrates that the provisions of State

implementation plans are Federally enforceable. More-

over, the requirement that the State be notified and given

thirty days to act is indicative of a preference that these

Federal requirements be enforced by State action. There-

fore, in refusing to comply with the requirements of Ken-

tucky’s Implementation Plan, the respondents herein are

not simply resisting a regulation adopted sua sponte by

Kentucky in the provincial exercise of its police power, but

they are refusing to comply with a regulation enforceable

under Federal law. No reading of the Supremacy Clause

can justify the refusal of respondents to comply with these

Federal regulations.

Finally, the application of the Supremacy Clause is in-

appropriate in this case because the regulations which

Kentucky seeks to impose do not in any way act to fru-

strate or thwart the application of Federal law, but rather

are in furtherance of and were adopted pursuant to Fed-

eral law. In the case of Perez v. Campbell, 402 U.S. 637

(1971), this Court quoted with approval the standard for

determining whether a State statute was in conflict with

the Supremacy Clause first enuncicated in Hines v David-

owitz, 312 U.S. 52 (1941):

“In the final analysis,’ our function is to determine

whether a challenged state statute ‘stands as an ob-

stacle to the accomplishment and execution of the full

purposes and objectives of Congress.’” Perez Vv.

Campbell, supra, at 649.

See also: Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963) ; Sears, Roebuck & Co. v. Stiffel Co.,

376 U.S 224 (1964); Nash v. Florida Industrial Comm.,

389 U.S. 235 (1967).

Applying the Hines test to the instant case, there is no

question that these requirements do not conflict with Fed-

eral law since it is through the application of the State im-

plementation plans that the objectives and goals of the

Clean Air Act are to be obtained In fact, it was at the

specific direction of Congress that these plans were form-

ulated and adopted. Under these circumstances, the Supre-

macy Clause is clearly not a bar to this action to secure

compliance with the provisions of Kentucky's Plan.

B. SOVEREIGN IMMUNITY

The Court of Appeals For the Sixth Circuit has also

ruled that with respect to all non-Tennessee Valley Au-

thority respondents, the Doctrine of Sovereign Immunity

is applicable in this case (Appenix, p. 157, 164, 165). How-

ever, none of the respondents herein are shielded behind

this Doctrine under the specific allegations of the Com-

plaint in this action. (Appendix, p. 1-34). There is a

legion of cases which have held that the Doctrine has no

application whatsoever in those instances where a Federal

officer or employee has violated his duties under a Federal

Statute. See: Dugan v. Rank, 372 U.S. 609 (1963) ;

Malone v. Bowdoin, 369 U.S. 643 (1962); Carter v. Sea-

mons, 411 F.2d 767 (5 CA 1969) cert. den. 397 U.S. 941

(1970) ; State of Washington vy. Udall, 417 F.2d 1310 (9

CA 1969). In the leading case of Larson v. Domestic and

Foreign Commerce Corporation, 337 U.S. 682, 689, 93 L,

Ed. 1628, 1635, 1636 (1949) this Court stated:

“There may be, of course, suits for specific relief

against officers of the sovereign which are not suits

against the sovereign... [w]here the officer’s

powers are limtied by statute, his actions beyond those

limitations are considered individual and not sover-

eign actions. The officer is not doing the business

which the sovereign has empowered him to do or he is

doing it in a way which the sovereign has forbidden,

His actions are ultra vires his authority and there-

fore may be made the object of specific relief”

The circumstances described above are precisely the cir-

cumstances which are present in this case. As alleged in

the Complaint in this action, (Appendix, p 1-34), 42 U.S.C.

§1857f. imposes a mandatory duty on those persons respon-

sible for the administration and operation of Federally

owned or operated air contaminant sources to comply with

the requirements of State law; a duty which they have

uniformly failed to perform.

In the case of Carter v. Seamons, 411 F2d. 767

(5 CA 1969), cert. den., 397 US 941 (1970), the Fifth

Circuit Court of Appeals adopted the procedure of

“accepting at face value, for jurisdictional purposes,

the averments of the complaint unless they are so

transparently unsubstantial or frivolous as to afford

no possible basis for jurisdiction, and of giving the aver-

ments thus accepted their natural jurisdictional conse-

quences.” Applyng that procedure, the Court found,

for jurisdictional purposes only, “the case sub judice is

not against the United States, but one rather to com-

pel the Secretary of the Air Force to perform a clear

legal duty” Carter v. Seamons, supra, at 771. Accord-

ingly, the Court held the defense of sovereign immunity

was unavailable. See also: Davis, Adnunistrative Law

Treatise, Volume 3, 27.03, in which it is observed:

“Despite the pervasive inconsistencies, the case law

is dominated by one outstanding generalization

that is usually followed but sometimes violated —

that sovereign immunity does not prevent a suit

against a state or federal officer who is acting

either beyond his authority or in violation of the

Constitution.”

In the present case, the individuals against whom

relief is sought have uniformly exceeded their authori-

ty in refusing to comply with the mandate of a Federal

statute and are properly subject to suit for specific

relief. Moreover, Congress has consented to such suits

against the United States in the Clean Air Act Amend-

ments of 1970, 42 U.S.C. §1857f. See: County of Mil-

qwaukee v. Veteran's Administration, 5 ERC 1412 (ED

Wisc., Mav 7, 1973), in which the Court dismissed

the Veteran’s Administration’s argument that sov-

ereign immunity barred a suit by Milwaukee County

to force it to comply with a county ordinance requir-

ing the use of dust separating equipment. The Court

correctly held that §1857f. was a Congressonal consent

to suits against Federal agencies that fail to comply

with State requirements respecting the control and

abatement of air pollution. See also: State of Alabama

v. Seeber, 502 F.2d. 1238 (1974).

CONCLUSION

The construction of the Clean Air Act embodied

in the decisions rendered by the United States District

Court For the Western District of Kentucky and the

United States Court of Appeals For the Sixth Circuit

does violence to the carefully conceived plan of the

Congress for the implementation of the National pri-

mary and secondary standards of air quality and con-

stitutes a significant hindrance to the proper employ-

ment and administration of Kentucky’s Implementa-

tion Plan and the achievement of the goals of the Act.

In order to provide that the States have the requisite

authority needed to fulfill their responsibilities for the

control and prevention of air pollution at its source,

the Congress declared in Section 118 of the Clean Air

Act Amendments of 1970, 42 U.S.C. $1857f., that Fed-

eral facilities and instrumentalities operating or con-

trolling air contaminant sources were to comply with

State “requirements respecting control and abatement

of air pollution.” The body of these requirements in

the Commonwealth of Kentucky are contained in its

Implementation Pian, adopted and approved in accord-

ance with the direction and requirements of Section 110

of the Clean Air Act Amendments of 1970. 42 U.S.C.

§1857c-5.

The Courts below have, however, written into the

law provisions exempting Federal facilities from com-

pliance with this Plan in contravention of the intent

of Congress. In ruling that the provisions of this

Commonwealth’s Implementation Plan are not “re-

quirements respecting control and abatement of air

pollution” and that the National primary and secon-

dary standards of ambient air quality are to be im-

plemented through legal action under Section 304 of

the Clean Air Act Amendments of 1970, 42 U.S.C.

§1857h-2, the Courts have thwarted and frustrated the

regulatory scheme enacted by the Congress and have

exempted many of this Commonwealth’s major air

contaminant sources from the control and review ne-

cessary to implement the standards and end the defile-

ment of the air of the United States.

For these and the foregoing reasons, the Judg-

ments of the United States District Court For the

Western District of Kentucky and the United States

Court of Appeals For the Sixth Circuit should be re-

versed and an Order entered granting Petitioner’s Mo-

tion for Summary Judgment and requiring Respond-

ents herein to comply with the provisions of Kentucky’s

Implementation Plan For the Attainment and Main-

tenance of National and State Ambient Air

Standards, as required by the Clean Air Act, as amend-

ed.

Respectfully submitted,

BY: DAVID C. SHORT ae

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 26, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-3595

CERTIFICATE OF SERVICE:

"The unduedionet —on certifies that the herein

BRIEF FOR PETITIONER Commonwealth of Ken-

tucky ex rel! Ed W. Hancock, Attorney General, was

served by mailing three copies hereof, via United States

mail, air mail postage prepaid, to: Honorable William

B. Saxbe, Attorney General, Department of Justice,

Tenth and Constitution Avenue, Washington, D. C.,

20330: Honorable Robert H. Bork, Solicitor General,

Department of Justice, Tenth and Constitution Avenue,

Washington, D.- “C.,''20530;. Honorable Harry R.

Sachse, ‘Asslatiet Solicitor General, Department of

Justice, Tenth and Constitution Avenue, Washington,

D. C., 20530; Honorable Wallace H. Johnson, Assistant

Attorney General, Land and Natural Resources Divi-

sion, Department of Justice, Tenth and Constitution

Avenue, Washington, D. C., 20530;Henorable Robert

L. -‘Klarquist, Attorney, Appellate Section, Land and

Naural’ Resources Division, Department of Justice.

Tenth and Constitution Avenue, Washington, D. C.,

20530; Honorable Robert H. Marquis, General Coun-

sel, Honorable Herbert S. Sanger, Jr., Deputy General

Counsel, Honorable Beauchamp E. Brogan, Associate

General Counsel, and Honorable Justin M. Schwamm,

Assistant General Counsel, Tennessee Valley Authori-

tv, New Sprankle Building, .Knoxville. Tennessee,

37901: Honorable G. Wilson Horde, General Coun-

sel, Union Carbide Corporation, Post Office Box Y,

Oak Ridge, Tennessee, 37830: Honorable Andrew P.

Miller, Attorney General, Commonwealth of Virginia,

and Honorable Thomas Steger, Assistant Attorney

General, Commonwealth of Virginia, Supreme Court

Building, 1101 East Broad Street, Richmond, Virginia,

23219; Honorable Evelle Younger, Attorney General,

State of California, and Honorable Foster Knight,

Deputy Attorney General, Honorable Roderick Wal-

ston, Deputy Attorney General; Honorable Robert H.

O’Brien, Assistant Attorney General, and Honorable

Nicholas C. Yost, Deputy Attorney General, State of

California, 600 State Building, 217 West First Street,

Los Angeles, California, 90012; Honorable John J.

Hill, Attorney General, State of Texas, and Honorable

Philip K. Maxwell, Assistant Attorney General, State

of Texas, Post Office Box 12548, Austin, Texas,

78711, AND by mailing three copies hereof, via United

States mail, postage prepaid, to: Honorable George J.

Long, United States District Attorney, Western Dis-

trict of Kentucky, Room 211, United States Court-

house, Sixth and Broadway, Louisville, Kentucky,

40202; Honorable James F. Gordon, Judge, United

States District Court, Western District of Kentucky,

United States Courthouse, Louisville, Kentucky, 40202;

and Honorable Lester L. Cecil, Senior Circuit Judge,

Honorable Pierce Lively, Circuit Judge, and Honorable

Paul C. Wieck, Circuit Judge, United States Court of

Appeals For the Sixth Circuit, 608 United States Court-

house Building, Cincinnati, Ohio, 45202, and further

the undersigned hereby certifies that all parties re-

quired to be served in this action have been served,

all this the 29 day of April, 1975.

ED W. HANCOCK

ATTORNEY GENERAL

COMMONWEALTH OF

KENTUCKY

By: Wedd ‘ \ sey

David D. Beals

Assistant Attorney General

Commonwealth of Kentucky

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.