Petitioners Reply Brief — Hancock v. Train

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF KENTUCKY, EX REL

ED W. HANCOCK,

ATTORNEY GENERAL, ........._........... PETITIONER,

VS:

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Be GS ‘wacccuedstadcscossqaswanssensenceceue RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONER

DAVID C. SHORT

Assistant Attorney General

Commonwealth of Kentucky

ED W. HANCOCK Room 26, Capitol Building

Attorney General Frankfort, Kentucky 40601

Commonwealth of Kentucky Telephone (502) 564-3505

Room 114, Capitol Building

Frankfort, Kentucky 40601 DAVID D. BEALS

Telephone (502) 564-7600 Assistant Attorney General

Commonwealth of Kentucky

Room 26, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 664-3505

COUNSEL FOR PETITIONER

———S—

Petition for Certiorari Filed September 3, 1974

Certiorari Granted March 17, 1975

TABLE OF CONTENTS

Page

INDEX TO CITATIONS ...........-seeeeees ii

PURPOSE AND NEED FOR THIS BRIEF ...... 1

BACKGROUND AND OPERATION OF THE

KENTUCKY IMPLEMENTATION PLAN... 2

RESPONDENTS’ CONSTRUCTION OF THE

SECTION 118 PHRASE, “REQUIREMENTS

RESPECTING CONTROL AND ABATE-

MENT OF AIR POLLUTION” .............. 8

INDEX TO CITATIONS

Cases Page

Alabama v. Seeber, 502 F. 2d. 1238, 1243-1244,

Petition For Writ of Certiorari Pending, sub.

nom., Seeber v. Alabama, No. 74-851 ............ 12

Train v. Natural Resources Defense Council, ——

U.S. __, 43 L.Ed. 2d 731, 737-738, 739, 95 S.Ct.

BGO, CAs OG, GEPOD ccccccsccccceccocesces 2, 15

Statutes

Clean Air Act Amendments of 1970,

Title 42, Section 1857 et. seq-, U.S.C. ........006- 2

Section 110, Clean Air Act Amendments of 1970,

Title 42, Section 1857c-5, U.S.C. . .3, 5, 7, 10, 13, 15, 21

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

Title 42, Section 1857c-5(e), U.S.C. 2.2.2... 0 eee 10

Section 110(e)(2), Clean Air Act Amendments of

Title 42, Section 1857c-5(e)(2), U.S.C. ........ Il

Section 111, Clean Air Act Amendments of 1970,

Title 42, Section 1857c-6, U.S.C. ..........000- 12

Section 111(d), Clean Air Act Amendments of 1970,

Title 42, Section 1857c-6(d), U.S.C. .......... 13

Section 112, Clean Air Act Amendments of 1970,

Title 42, Section 1857c-7, U.S.C. ............ 12, 13

Section 118. Clean Air Act Amendments of 1970,

. ££ F 9 , & : | ae 2, 8, 14

Section 304, Clean Air Act Amendments of 1970,

Title 42, Section 1857h-2, U.S.C. ........0000- 21

Other References

Page

Environmental! Protection Agency Letter of

gg EE ene

Executive Order 11507, 35 Federal ii 2573,

February 4, 1970 ..... 0... cece cececeeee 19

Executive Order 11752, 38 federal — 34793,

December 19, 1973 . ca seccccccee

40 Federal Register 20664, (May ‘2, 1975) ........ 18

Kentucky Administrative Regulation AP-1,

SE SED nGnndeneedenedanaddedesesddcncce 6

Kentucky Administrative Regulation AP-1,

DP IE <0. cc cucenncuaconeneetadeeda 4

Kentucky Administrative Regulation AP-1,

EE cceancussadududebésseannndbieaans 5

Kentucky Administrative ee AP-1,

DED ccdcccuddetbédacccancdeadeedeess 6

Kentucky Administrative Regulation AP-1,

Sees GS, F, G GOOD o cccccccccccccccccoccess 6

Kentucky Administrative Regulation AP-1

BED DD cue ccnctcccecesvssesscsoeescesccos 5

Kentucky Administrative Regulation AP-10 ........ 4

S. 4358, Section 111, 91st. Congress,

ee GE, GEO <ccecoscccscesdocccecces .

S. 4358, Section 111(a)(2)(D), 91st. Congress,

2d. Session, (1970) ..........ccceeccceees cooe 12

Qs SS eee

Sree > ——

In The

SUPREME COURT OF 'THE UNITED STATES

OCTOBER TERM, 1974

NO. 74-220

COMMONWEALTH OF KENTUCKY, EX REL

W. HANCOCK,

ATTORNEY GENERAL, = = —____ PETITIONER,

VS:

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

ET AL, | = RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONER

MAY IT PLEASE THE COURT:

PURPOSE AND NEED FOR THIS BRIEF:

The Commonwealth feels compelled to submit this

Brief in an effort to correct some of the several miscon-

structions and mistaken impressions conveyed and ad-

vanced by the respondents with respect to the background

of this action, the nature and functioning of this Common-

wealth’s permit system and of its Implementation Plan as

a whole, and the actions taken, or not taken, by the facili-

ties involved. Petitioner further does not believe the re-

2

spondents’ interpre.ation of the phrase “requirements res-

pecting control and abatement of air pollution,” contained

in Section 118 of the Act, 42 U.S.C. §1857f., can be har-

monized with other sections of the Clean Air Act, as

amended, and that this construction is an effort by respon-

dents to minimize and avoid oblis ations the Congress

placed on all air contaminant sources

BACKGROUND AND OPERATION OF THE

KENTUCKY IMPLEMENTATION PLAN:

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

§1857 et. seq., the Congress prescribed and set forth a

clearly discernible plan for the attainment and mainten-

ance of clean air in this country. Basic to this plan was

the retention of state responsibility for the quality of the

air within their respeciive geographical limits. Flowever,

because the state’s acceptance of this responsibility under

previous Acts was disappointing, the Congress provided

for a means of assuring a responsive program of state im-

plementation. These past implementation problems and

the approach employed by Congress for their solution

were discussed by this Court in Train v. Natural Resources

Defense Council, __- U.S. , 43 L. Ed. 2d 731, 95

S.Ct. 1470 (April 16, 1975):

“Even by 1970, state planning and implementation

under the Air Quality Act of 1967 had made little

progress. Congress reacted by taking a stick to the

States in the form of the Clean Air Amendments of

1970, Pub. L. 91-604, 84 Stat. 1676, enacted on De-

cember 31 of that vear. These Amendments sharply

increased federal authority and responsibility in the

3

continuing effort to combat air pollution. Nonethe-

less, the Amendments explicitly preserved the prin-

ciple that, ‘Each State shall have the primary respon-

sibility for assuring air quality within the entire geo-

graphic area comprising such State... .’ §107(a)

of the Clean Air Act, as added, 84 Stat. 1678, 42

U.S.C. §1857c 2(a). The difference under the

Amendments was that the States were no longer given

any choice as to whether they would meet this respon-

sibility. For the first time they were required to at-

tain air quality of specified standards, and to do so

within a specified period of time.” 43 L.Ed. 2d 731,

at pp. 737-738, Slip Op., at pp. 2-3.

The “stick” which Congress took to the states to as-

sure attainment of these goals took the form of specific

requirements which were to be incorporated into each

state’s implementation plan. These measures, contained in

Section 110 of the Act, 42 U.S.C. §1857c-5, were designed

to give assurance that the state air pollution control pro-

grams could, at last, be counted on to achieve the goal of

clean air. It then became the obligation of the states to

devise and formulate a plan, incorporating the measures

prescribed in Section 110 of the Act, 42 U.S.C. §1857c-5,

which would lead to the implementation and attainment of

the air quality standards within a specified time period.

These plans, by Congressional design and mandate, were

to contain not only emission standards but also a means

of implementing and enforcing such standards.

The Kentucky Implementation Plan submitted to the

Environmental Protection Agency, and subsequently ap-

4

proved by the Administrator,’ contains as its central con-

trol mechanism the use of a permit system, a system which

coordinates and integrates the functioning of all other

regulations in the Kentucky Plan. Respondents’ detailed

recanting of the Commission’s Rules of Practice, Kentucky

Administrative Regulation AP-10,? as they relate to the

Kentucky permit system is of no more value in understand-

ing how this system is designed or how it functions to

fulfill this Commonwealth’s responsibilities to achieve the

goals of the Clean Air Act than examination of the Ad-

ministrative Procedures Act, 5 U.S.C. §500 et. seq., would

be in understanding how any Federal agency discharges

its responsibilities under the statute it administers.

The basic approach of the Kentucky Plan is illustrated

by the provisions of Kentucky Administrative Regulation

AP-1, Section 5(3) (a)?

*Kentucky’s Implementation Plan was originally approved on

May 31, 1972. 37 Federal Register 10842. This approval was va-

cated 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 Environ-

mental Protection Agency as proposed rule making on March

19, 1974. 39 Federal Register 10277. On August 15, 1974, the

Administrator of Environmental Protection Agency published

his approval of the re-submitted Kentucky Plan with one ex-

ception not relevant to the issues herein. 39 Federal Register

29357.

*Respondents’ Brief, p. 6.

‘Subject Kentucky Administrative Regulations are printed in

the Appendix submitted to the Court of Appeals For the

Sixth Circuit at pp. 99-227.

“In considering permit applications, the Commission

shall determine if emission standards or ambient

standards are met. In no case shall a permit to con-

struct or operate be issued where it can be shown

through diffusion calculations or actual ambient air

quality monitoring, that the air contaminant source

will prevent or interfere with the attainment or main-

tenance of state or federal air quality standards. . . .”

This is the primary criteria upon which this Common-

wealth issues or denies a permit and is directly related to

the achievement of the goals of the Act. Based on this

standard a permit will be issued only if (1) agency analysis

of the data submitted reveals that the source is in com-

pliance with the applicable emission standards and does

not jeopardize compliance with the ambient standards or

(2) the source submits a compliance plan and timetable

in accordance with Kentucky Administrative Regulation

AP-1, Section 11, which agency analysis demonstrates will

bring the source into compliance with these standards by

the attainment dates. Thus in Kentucky it is through the

functioning of the permit system that compliance schedules

come into being, are reviewed by the agency, and are ap-

proved, and it is only through the permit system that these

compliance schedules, and other requirements of the Ken-

tucky Plan, may be administratively enforced.

Since the formulation and submittal of a compliance

schedule is only necessary to satisfy the basic requirement

for the issuance of a permit these schedules are treated as

conditions to the issuance of the permit and are incor-

porated under Kentucky Administrative Regulation AP-1,

Section 5(4). Similarly, other requirements of the Ken-

6

tucky Plan are made enforceable as conditions on the issu-

ance of a permit. These include requirements relating to

monitoring and the keeping of records, requirements as to

sampling and testing, and requirements for dealing with

emergency episodes. Kentucky Administrative Regula-

tion AP-1, Sections 6, 7, 8, and 9. The position of the

permit system as the core requirement of the Kentucky

Plan and as the requirement around which all others are

framed is illustrated by Kentucky Administrative Regula-

tion AP-1, Section 1(1):

“Regulations of the Commission shall be construed

in light of the considerations set forth hereinafter

which shall guide the Commission in the issuance,

modification and revocation of permits.”

Moreover, inclusion of these requirements as conditions

on the issuance of permits is necessary since the power of

the administrative agency under its current regulations is

confined to the issuance, denial, revocation, or modifica-

tion of permits. Further, once a permit is issued it may

only be revoked or modified upon a finding that the source

(a) has failed to comply with the terms and conditions of

its permits, (b) has failed to comply with the applicable

emission standards, (c) has failed to comply with the am-

bient air standards. Kentucky Administrative Regulation

AP-1, Section 5(5).

The permit system is a cohesive and comprehensive

mechanism which results in a single document incorporat-

ing all the requirements of the Kentucky Plan and is a

system through which the Kentucky Department For Na-

tural Resources and Fnvironmental Protection may re-

view each air contaminant source in Kentucky and make

7

a determination as to that source’s compliance with the

standards of the Act. It is a system which fulfills all the

requirements of Section 110 of the Clean Air Act, 42

U.S.C. §1857c-5, as was determined by the Administrator

of the Environmental Protection Agency, and if allowed

to function would achieve the goals of the Act.

The response of the Federal facilities to this Com-

monwealth’s request for cooperation in the implementation

of the Kentucky Plan fell far short of the ievel needed to

make the Plan work. Respondents complied only to the

extent of providing the initial data necessary for the first

preliminary steps in the Commonwealth’s control program.

After submitting registration and initial assessment data

together with letters assuring future cooperation, all

semblance of cooperation ceased. Although analysis of the

initial data demonstrated a lack of compliance in most

cases and the need for additional controls, none of the

facilities submitted compliance schedules for review and

approval by the administrative agency, nor have any such

shedules yet been submitted for such analysis and ap-

proval. In some cases, the state agency was told what the

source intended to do to bring itself into compliance but

no state review of these compliance plans was ever per-

mitted. This refusal, by respondents to submit to the

state’s permit program review has had the result of remov-

ing from any agency review the control activities of several

of this state’s largest pollution sources, and at least one

major source continues to operate under a compliance

schedule which the state has publicly declared is not ac-

ceptable under the Kentucky Plan. Nonetheless, this source,

Tennessee Valley Authority’s Shawnee Power Plant, con-

tinues to proceed on the course set by itself alone while

8

the Commonwealth's protests are ignored. In addition to

the refusal to prepare compliance schedules in accordance

with the Kentucky Plan and to submit these plans for ad-

ministrative review there are several other instances where

the cooperation of these respondents has been unsatisfac-

tory. There have been no periodic reports as required in

the Kentucky Plan but rather information has been supplied

only upon specific request. Monitoring and sampling

techniques which are unacceptable to the state have been

employed, resulting in the production of unreliable data.

And as a general statement, cooperation with the state has

been limited to the providing of data reflecting only the

current status of Federal facilities, and only when such

information is specifically requested. In the absence of

compliance with the state’s permit system there has been

no opportunity for the meaningful administrative review

necessary to assure the pollution control measures em-

ployed by these facilities are adequate to assure that this

Commonwealth’s attainment of the ambient air quality

standards will not be jeopardized. This is not proper

cooperation with the state nor is this conduct in accord

with the proper implementation or enforcement of the re-

quirements of tlhe Clean Air Act, as amended.

RESPONDENTS’ CONSTRUCTION OF THE

SECTION 118 PHRASE, “REQUIREMENTS

RESPECTING CONTROL AND

ABATEMENT OF AIR POLLUTION”:

The basic contention of the respondents is that the

phrase “requirements respecting control and abatement of

air pollution” in Section 118, 42 U.S.C. §1857f., refers to,

9

and directs compliance with, only “the applicable emission

standards and compliance schedules promulgated by the

particular state pursuant to their EPA-approved plan to

establish and maintain national air quality standards.”

(Respondents’ Brief, p. 19). However, this overlooks and

ignores the fact that the formulation of compliance plans

and timetables pursuant to the Kentucky Plan involves

and necessitates the proper operation of the permit system,

the mechanism through which the state may review the

control strategies proposed by each air contaminant source

and make the necessary determination that in each case

these plans will indeed bring the source into compliance

with the applicable standards by the attainment date and

will not jeopardize the attainment of the ambient standards.

None of the respondents herein have submitted their con-

trol strategies for this review and none is committed to a

compliance schedule approved under, or pursuant to, the

Kentucky Plan. Thus, while paying lip service to the

“EPA-approved plan,” respondents nonetheless ignore this

plan, proceeding as if each source may develop its own

compliance schedule free from administrative review or

approval and may satisfy the requirements of the Clean

Air Act by adhering to this self-generated and unreviewed

schedule. Despite adherence to these announced “compli-

ance schedules,” this approach leads, as it has in Kentucky,

to the situation where, due to the lack of prior state ap-

proval, the so-called “compliance schedule” is such that

compliance may not be achieved and attainment of the

ambient standards will be jeopardized.

In addition to this internal inconsistency with regard

to the manner of the creation of compliance schedules and

the admitted need to comply with such schedules, the

10

respondents’ contention as to their compliance obligaiion

excludes requirenients relating to monitoring, records, re-

porting, sampling and testing methods, and procedures

for air pollution emergencies, which, presumably, are

“procedural” requirements of the Kentucky Plan with

which respondents need not comply. This narrow view

of the term “requirements” does not, however, coincide

with the requirements the Congress felt would be necessary

to provide for the attainment and maintenance of the na-

tional air quality standards and which were expressed in

Section 110 of the Act, 42 U.S.C. §1857c-5. In this sec-

tion, the Congress specified those requirements which were

to le imposed through the operation of the state imple-

mentation plans. Clearly, no plan could be approved by

the Administrator unless such requirements were incor-

porated; just as clearly, there exists no basis for making

a differentiation within which some of these requirements

may he designated “requirements respecting control and

abatenient of air pollution” and some may not. However,

it is just such a differentiation which respondents seek

to construct from other sections of the Act.

Respondents’ reliance upon Section 110(e), 42 U.S.C.

§1857c-5(¢), is, however, not helpful in such a construc-

tion. This section provides that the states can request

and obtain an extension of the attainment dates for the

primary standard and is limited to “requirements .. .

which implement such primary standard.” This extension

of attainment dates does not effect what requirements need

be applied, nor does it exempt any source from any re-

quirements, but rather provides only that the states may

approve compliance schedules which delay compliance an

additional two (2) years. Further, such extensions are

a

11

limited to situations where the state plan does provide for

implementation of the standards for all sources for which

compliance is possible and further that the plan provides

interim measures of control as are deemed reasonable for

those sources for which compliance is not technologically

possible.‘ Moreover, respondents’ conclusion that the op-

eration of the state’s permit system requires no technologi-

cal sophistication’ is simply out of touch with the realities

of air pollution control and the manner of implementating

technological advances. It is through the use of this

system that compliance schedules may be modified or

formulated to reflect these advances.

Equally unenlightening as to the meaning of “require-

ments” is respondents’ discussion of Section 111 of the

Senate Bill. This section is substantially the same as

Section 110 of the Act and imposes the same obligations

upon the state. Under Section 111 of the Senate Bill, a

state implementation plan could only be approved by the

“Secretary” if he determined the plan contained « num-

ber of specified requirements, including both emission re-

quirements and “appropriate procedures, including but

not limited to, . . . permits, for insuring that any source

of air pollution agents . . . will be located, operated, .. .

designed, constructed, and equipped in such a way that

such sources will not interfere with implementation, main-

tenance, and enforcement of any applicable air quality

*§110(e)(2), 42 U.S.C. §1857¢-6(e) (2).

‘Respondents’ Brief, p. 21.

“S. 4358, Sist Congress, 2d. Session (1970).

12

standard and goal.” Section 111(a)(2)(D), S. 4358, 91st

Cong., 2d. Sess. (1970). In addition to being an excellent

description of the functions performed by the permit sys-

tem of the Keniucky Plan, this section also demonstrates

that the Senate felt achievement of the goals of the Act

would require more than the imposition of emission stand-

ards. This section serves only to demonstrate further that

the Congress did not regard emission standards as the

exclusive requirements relating to the control and abate-

ment of air pollution.

Respondents’ reliance on Section 111 and Section 112

of the Act, 42 U.S.C. §1857c-6 and §1857c-7, are also mis-

placed. These sections deal with new sources and hazard-

ous pollutants, areas in which the Administrator has

exclusive control of the standards and also where enforce-

ment authority is exclusively reserved to the Administrator

with respect to federal sources. The differentiation be-

tween new and existing sources and the problems associated

with the control of each was discussed by the Court of

Appeals For the Fifth Circuit in Alabama v. Seeber, 502

F. 2d 1238, Petition For Writ of Certiorari pending, sub

nom. Seeber v. Alabama, No. 74-851, (also reprinted in

Petitioner's Supplemental Memorandum to Petition For

Writ of Certiorari as Appendix “D”):

“With respect to existing stationary sources of air

pollution the Act places the primary responsibility

for setting and enforcing emission standards or limi-

ta:‘ons on the states. EPA, pursuant to §109 of the

Act [42 U.S.C. §1857c-4] establishes primary and

secondary ambient air quality standards, and the

— —-

13

States, pursuant to §110 [42 U.S.C. §1857c-5] estab-

lish, subject to approval by EPA, implementation

plans geared to meeting the air quality standards . . .

Sections 111, 112, and 114 [42 U.S.C. §§1857c-6,

1857c-7, and 1857c-9] of the Act explicitly exempt

certain federal facilities from state authority to en-

force requirements established by EPA pursuant to

those sections. Those sections deal with specialized

emission standards for new sources and hazardous pol-

lutants and with recordkeeping, inspection and moni-

toring requiremenis established directly by EPA. In

view of these explicit exemptions for federal facili-

ties, particularly the exemptions in §§111 and 112,

which like $110 establish control schemes for certain

classes of air pollution sources, the absence of any

such exemption in §110 suggests that the provisions

of implementation plans adopted and approved pursu-

ant to that section, including provisions for state

enforcement of emission limitations through permit

systems, are applicable to federal facilities.

The general scheme that emerges from the Act

as a whoie appears to be that responsibility and au-

thority for enforcement with respect to federal facili-

ties is granted to the states for sources with respect

to which state implementation plans establish the

criteria for enforcement, and is granted to EPA in

those instances (i-e., new sources and hazardous pol-

lutants) where EPA establishes the criteria. The

scheme is a reasonable one. Because of variations in

air quality between states and regions the emissions

criteria established under state plans may vary con-

14

siderably, thus making enforcement by EPA against

scattered federal facilities administratively difficult.

The new source and hazardous pollutant criteria estab-

lished by EPA, however, 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 convenient.” Alabama v. Seeber, supra,

at pp. 1243-44, (Appendix “D”, pp. 9d-13d). _*

The most important inference which can be drawn

from these sections is, then, that where the Congress wished

to exclude Federal facilities from outside control, they did

so expressly and in specific language such as that contained

in Sections 111 and 112 but which is notably absent trom

Sections 110 or 118.

Further, Section 111 does speak specifically of state

control over existing sources. Section 111(d) provides

that if the Administrator has set a standard of perform-

ance for a new source which calls for an air quality criteria

for a pollutant which is not included in the state plan, the

state is required to impose a standard for the pollutant

with regard to existing sources. This further demonstrates

that control of air pollution from existing suorces was to

he accomplished through the operation of state implementa-

tion plans. Respondents, however, suggest that such con-

trol is to be accomplished through the use of court action

pursuant to Section 304 of the Clean Air Act, as amended,

42 U.S.C. 1857h-2.

Respondents’ interpretation of Section 304 of the Act

renders the provisions of Section 118, 42 U.S.C. §1857f.,

superfluous, having no operative effect whatsoever. No

reference to Section 118 is necessary to determine that

Section 304 subjects Federal facilities to action for viola-

15

tion of emission standards and compliance schedules;

Section 304 quite clearly and expressly states such liability.

In addition to the fact that Congress foresaw an entirely

different function for “citizen suits” than do the respon-

dents herein, the interpretation advanced by the respondents

places the implementation of the Clean Air Act squarely

and exclusively on the courts with no resort to any ad-

ministrative processes. Instead of utilizing the administra-

tive framework prescribed by the Congress in Section 110,

42 U.S.C. §1857c-5, and made applicable through Section

118, respondents contend that each Federal source is to

see to its own compliance or be subject to court action.

The cons‘ruction advanced does not, therefore, take any ©

cognizance of any necessity for administrative planning or

review and does not accord Section 118 any meaning save

as a restatement of the requirements imposed in Section

304. However, such planning and review was, and is,

quite clearly necessary. As this Court stated in Train v.

Natural Resources Defense Council, __.. U.S. —__, 43

L.Ed. 2d 731, 95 S.Ct. 1470 (Apri 16, 1975):

“No one can doubt that Congress imposed upon the

Agency and States a comprehensive planning task

of the first magnitude which was to be accomplishe4

in a relatively short time.” 43 L.Ed. 2d 731, at p. 739,

Slip Op. at p. 6.

The authority of the states to carry out their plans with

respect to Federal sources is, we submit, contained in Sec-

tion 118. There can be no explanation for the existence

of Section 118 if it imposes no obligations other than those

16

imposed under Section 304, and there is no reasonable

explanation for the inclusion of additional requirements

prescribed in Section 110 if such requirements are not

“requirements respecting control and abatement of air

pollution.”

Respondents cite numerous authorities in support of

the proposition that the administrative interpretation of

the Clean Air Act is entitled to deference by this Court-

The position of the respondent Environmental Protection

Agency would be entitled to greater weight in this action

if the advice given had been followed or if the agency had

taken any timely action to assure its advice was carried

into action. However, the recommendations of the En-

vironmental Protection Agency were not followed by the

operating respondents and the Environmental Protection

Agency took no action to see the instructions were carried

out until May of 1975.

In the October 17, 1972, letter sent to the respondents

herein, the Environmental Protection Agency made the

following recommendation:

‘“‘We recommend that each Federal facility under your

jurisdiction which has an air pollution discharge should

initiate immediate discussion, if it has not already

been accomplished, with the respective states, regard-

ing development of a compliance schedule as required

by their implementation plan. This compliance sched-

ule should include the standards or emission limita-

tions which must be met, the abatement equipment to

be constructed, corrective measures to be taken, and

17

the timetable for taking these actions in order to meet

established implementation plan deadlines. Your

agency will be obligated under the compliance schedule

to conduct monitoring and to keep operating records.”

(Appendix, pp. 57-58).

Despite this advice, respondents did not develop compliance

schedules as required by Kentucky’s Implementation Plan,

No such schedules were submitted for the approval of the

state agency and few of these self-generated and unreviewed

plans were discussed with the state. The Kentucky Im-

plementation Plan provides for the participation of the

state’s air pollution control agency in the formulation of

these compliance schedules through the operation of the

permit system and it is through the operation of this sys-

tem that each of the determinations necessary to prescribe

the requisite controls, listed in the Environmental Protec-

tion Agency’s recommendations, are made.

The recommendation was made in October of 1972,

and yet it was not until May of 1975, scant months in ad-

vance of the attainment date for most pollutants,’ that the

Environmental Protection Agency felt it necessary to

check on the compliance status of Federal installations or

to prescribe guidelines for the formulation of control

'The attainment date for the Commonwealth of Kentucky was

July 1, 1975, except with respect to emissions of sulfur-

dioxide. Pursuant to the request of the Governor of Kentucky

the Commonwealth’s attainment date for sulfur-dioxide con-

centrations has been extended to July 1, 1977.

18

strategies for sources not currently in compliance.* As

respects the timely attainment of the national standards of

air quality, the planning, in May of 1975, of the control

measures necessary to bring Federal air contaminant

sources into compliance is simply too late. Had the agency

taken action at the time of the breakdown of the admini-

strative process they themselves approved, such determina-

tions would have been made in 1972 or 1973, as they should

have been under the Kentucky Implementation Plan.

Moreover, the conclusion stated in the letter sent by

the Environmental Protection Agency with respect to Fed-

eral compliance with state requirements either does not

apply to a permit system such as that employed in Kentucky

or ignores the nature and operation of such a system. The

letter concludes :

“Twle do not believe that Federal agencies are re-

quired to apply for state operating permits or to reg-

‘Respondent Russell E. Train, Administrator of the Environ-

mental Protection Agency, issued an order entitled ‘‘Com-

pliance with Stationary Source Air Pollution Standards; Fed-

eral Agencies Guidelines” on May 6, 1975. This Order was

published in the Federal Register on May 12, 1975, and stated

as its purpose:

“The purpose of this guideline is to provide a means to

determine the compliance status of all Federal stationary

sources of air pollutants which are subject to Federal,

State, and local emission limitations and establish firm

public commitments to abate emissions as expeditiously as

practical from the facilities exceeding limitations.” 40

Fed. Reg. 20664, May 12, 1975.

19

ister their discharge or emission if the registration

process is in effect a permit application that will lead

automatically to issuance of a state permit or license.”

(Appendix, p. 58).

As can be readily seen from the above, the Environmental

Protection Agency’s position that state operating permits

are not required for Federal facilities was limited by the

condition “if the registration process is in effect a permit

application that will lead automatically to issuance of a

state permit of license.” (Emphasis Added). The submis-

sion of a permit application to the Kentucky Department

For Natural Resources and Environmental Protection does

not, under any reasonable construction of the Kentucky

Implementation Plan, lead automatically to, or guarantee,

the issuance of a permit. In fact, no permit may be issued

until after the formulation, review and ultimately the

approval of the applicant’s compliance schedule and the

formulation and imposition of such monitoring and report-

ing conditions as are necessary to assure the control

strategy is implemented in a timely manner and is func-

tioning up to expectations. Such determinations are cer-

tainly not automatic but rather require extensive admini-

strative analysis and planning.

As a further administrative interpretation of the re-

sponsibilities of Federal air contaminant sources under the

Clean Air Act, the respondents cite Executive Order 11752,

This Order superceded Executive Order 11507* and was

*Executive Order 11507, 35 Fed. Reg. 2573 (February 4, 1970)

entitled ‘‘Prevention, Control and Abatement of Air and

Water Pollution at Federal Facilities.”

20

issued by President Nixon on December 19, 1973, after

the initiation of this and similar actions in California and

Alabama. Executive Order 11752 differed from Executive

Order 11507 in few respects. The primary change is re-

flected in the position that Federal facilities should not

comply with state or local administrative procedures. In

contrast, Executive Order 11507 directed that Federal

facilities were to conform to air quality standards as de-

fined in Section 2(d) of that Order, which read in part:

“The term air and water quality standards shall respec-

tively mean the air quality standards and related plans

of implementation including emission standards,

adopted pursuant to the Clean Air as amended . . .”

(Emphasis Added).

The reversal of this position after the initiation of

legal actions against agencies under Executive control, in-

cluding respondents herein, demonstrates the self-serving

nature of Executive Order 11752 and as such this inter-

pretation should be accorded no weight by this Court.

CONCLUSION

The regulatory scheme which emerges from an

examination of the Clean Air Act as a whole does not,

and has not been shown to, support respondents’ contention

that “requirements respecting control and abatement of

air pollution,” made applicable by Section 118, 42 U.S.C.

§1857f., are limited to emission standards and self-gen-

21

erated compliance schedules. The control of air pollution

from existing stationary sources was, and is, to be accom-

plished through the operation of state implementation plans

containing all the requisite controls specified in Section 110

of the Act, 42 U.S.C. §1857c-5. The Congress directed

that the Administrator could not approve any implementa-

tion plan unless each of the eight requisites specified in

Section 110(a) (2) was incorporated in such plan. There

exists no rational basis for differentiating the one provision

requiring the incorporation of emission standards and

compliance schedules from the other seven elements re-

quired to be incorporated. Each was considered necessary -

to assure achievement of the goals of the Act and each is

a “requirement respecting control and abatement of air

pollution.” By limiting these Section 118 requirements so

that they would be identical to the requirements which

respondents are subject to by virtue of Section 304, 42

U.S.C. §1857h-2, the respondents have rendered Section

118 utterly without operative effect and they successfully

avoid, as governmental agencies, the obligations imposed

by Congress on all citizens in the Clean Air Act.

For these and the foregoing reasons, the Judgments

of the United States District Court For the Western Dis-

trict of Kentucky and the United States Court of Appeals

For the Sixth Circuit should be reversed and an Order

entered granting Petitioner’s Motion For Summary Judg-

ment and requiring respondents herein to comply with the

provisions of Kentucky’s Implementation Plan For the

22

Attainment and Maintenance of National and State Ambi-

ent Air Quality Standards, as required by the Clean Air

Act, as amended.

Respectfully Submitted,

ED W. HANCOCK

ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 114, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-7600

By: DAVID C. SHORT

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

By: DAVID D. BEALS

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 26, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-3595

COUNSEL FOR PETITIONER.

23

CERTIFICATE OF SERVICE:

The undersigned hereby certifies that the herein

REPLY 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 Robert H.

Bork, Solicitor General, Honorable A. Raymond Randolph,

Jr., Deputy Solicitor General, and Honorable Harry R.

Sachse, Assistant Solicitor General, Department of Justice,

Tenth and Constitution Avenue, Washington, D.C. 20530;

Honorable Edward Levi, Attorney General, Department

of Justice, Tenth and Constitution Avenue, Washington,

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

Attorney General, Land and Natural Resources Division,

Department of Justice, Tenth and Constitution Avenue,

Washington, D.C., 20530; Honorable Robert L. Klarquist,

Attorney, Appellate Section, Land and Natural Resources

Division, Department of Justice, Tenth and Constitution

Avenue, Washington, D.C., 20530; Honorable Jacques B.

Gelin, Attorney, Department of Justice, Tenth and Con-

stitution Avenue, Washington, D.C., 20530; Honorable

Robert H. Marquis, General Counsel, Honorable Herbert

S. Sanger, Jr., Deputy General Counsel, Honorable Beau-

champ E. Brogan, Associate General Counsel, and Honor-

able Justin M- Schwamm, Assistant General Counsel, Ten-

nessee Valley Authority, New Sprankle Building, Knox-

ville, Tennessee, 37901; Honorable G. Wilson Horde, Gen-

eral Counsel, Union Carbide Corporation, Post Office Box

Y, Oak Ridge, Tennessee, 37830; Honorable Evelle J.

Younger, Attorney General, Honorable Robert H. O’Brien,

Assistant Attorney General, Honorable Carl Boronkay,

Assistant Attorney General, Honorable Nicholas C. Yost,

24

Deputy Attorney General, Honorable Roderick Walston,

Deputy Attorney General, Honorable Daniel Taaffe, De-

puty Attorney General, and Honorable C. Foster Knight,

Deputy Attorney General, State of California, 110 West

“A” Street, Suite 600, San Diego, California, 92101;

Honorable Arthur K. Bolton, Attorney General, and Hon-

orable Robert E. Hall, Assistant Attorney General, State

of Georgia, 132 State Judicial Building, Atlanta, Georgia,

30334; Honorable Louis J. Lefkowitz, Attorney General,

Honorable Samuel A. Hirshowitz, First Assistant Attorney

General, Honorable Philip Weinberg, Assistant Attorney

General, and Honorable Richard G. Berger, Assistant At-

torney General, State of New York, Two World Trade

Center, New York, New York, 10047; Honorable John

J. llill, Attorney General, Honorable David M. Kendall,

First Assistant Attorney General, and Honorable Philip

K. Maxwell, Assistant Attorney General, State of Texas,

Supreme Court Building, Austin, Texas, 78711; Honor-

able Andrew P. Miller, Attorney General, and Honorable

J. Thomas Steger, Assistant Attorney General, Common-

wealth of Virginia, Supreme Court Building, 1101 East

Broad Street, Richmond, Virginia, 23219; and by mailing

three copies hereof, via United States mail, postage pre-

paid, to: Honorable George J. Long, United States District

Attorney, Western District of Kentucky, Room 211, United

States Courthouse, Sixth and Broadway, Louisville, Ken-

tucky, 40202; and by mailing copies hereof, via United

States mail, postage prepaid, to: Honorable James F.

Gordon, Judge, United States District Court, Western

District of Kentucky, United States Courthouse, Louis-

ville, 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 Courthouse Building, Cincinnati, Ohio,

45202, and further the undersigned hereby certifies that

all parties required to be served in this action have been

served, all this the > day of September, 1975.

ED W. HANCOCK

ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

COMMONWEALTH OF KENTUCKY

. \

~~ A S Va,

By: DAVID D. BEALS

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY