Petition — Big Rivers Electric Corp. v. Environmental Protection Agency

Supreme Court brief1976

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IN THE 4

MHCHATL RODAK, J8

ee a ee

Supreme Court of the United States

OCTOBER TERM, 1975

BIG RIVERS ELECTRIC CORPORATION

KENTUCKY POWER COMPANY and

KENTUCKY UTILITIES COMPANY,

Petitioners,

Vv. °

ENVIRONMENTAL PROTECTION AGENCY,

RUSSELL E, TRAIN, ADMINISTRATOR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

WILSON W. SNYDER

300 Madison Avenue

P.O. Box 2088

Toledo, Ohio 43603

Attorney for Petitioners

Of Counsel:

A. JOSEPH DOWD

2 Broadway

New York, New York 10004

Interstate Brief & Record Co., 1036 Beaubien St., Detroit, Michigan 48226

962-8745 —962-8732

SUBJECT INDEX

| Page

OPINION BELOW .........ccccecececececeecese 2

| UN sere et 8 Sen 2

QUESTIONS PRESENTED .................-. 2

STATUTORY PROVISIONS INVOLVED........ 3

STATEMENT OF THE CASE ...............+-. 4

REASONS FOR GRANTING THE WRIT........ 7

1. THE DECISION BELOW ERRONEOUSLY

CONSTRUES A DEFINITION IN THE

OPINION OF THIS COURT IN THE

TRAIN CASE AS BEING DECISIVE OF

AN ISSUE OF NATIONWIDE IMPORT-

ANCE WHICH WAS NOT EVEN IN-

VOLVED IN THAT CASE.............. 7

2. THE DECISION BELOW DEPRIVES

THE STATES OF THE VITAL RIGHT,

WHICH THE SUPREME COURT REC-

OGNIZES IS RESERVED TO THEM BY

THE CLEAN AIR ACT, TO CHOOSE

WHATEVER MIX OF EMISSION LIMI-

TATIONS THEY DEEM BEST SUITED

TO THEIR PARTICULAR SITUATION 9

3. THE MAGNITUDE OF THE IMPACT ON

THE NATION OF THE ISSUES IN-

VOLVED IN THIS CASE MAKES THEIR

RESOLUTION BY THE SUPREME

GREE WUE oso cdcdutcvovectcccdens 17

GEE cba sd eebceSensucessccunddoneeces 21

APPENDIX

Opinion of United States Court of Appeals for

the Sixth Circuit, Big Rivers Electric Corpora-

tion, et al. v. Environmental Protection Agen-

cy, et al., No. 74-2015, No. 74-2020 ...........

Pertinent Provisions of the Clean Air Act as

Amended, 42 U.S.C. 1857a-} ..............48-

Ruling of the Administrator of the Environmental

Protection Agency dated August 9, 1974, on

the Kentucky Air Pollution Implementation

Plan, 39 Fed. Reg. 29357-29359 ..............

Pertinent Provisions of Kentucky Air Pollution

CED, Sb dcccncvccatvensccvcweocesseeue*

ili

TABLE OF AUTHORITIES

Cases: Page

Buckeye Power Co., et al. v. Environmental Pro-

tection Agency, 481 F.2d 162 (6th Cir., 1973) 3

Duquesne Light Company v. EPA, — F.2d —,

8 ERC 1065 (3rd Cir. 1975) ................. 12

Kennecott Copper Corp. v. Train, Case #75-1335,

(9th Cir. Filed February 11, 1975)........... 19

NRDC v. EPA, 489 F.2d 390 (5th Cir. 1974)...... 7

NRDC v. EPA, 507 F.2d 905 (9th Cir. 1974)...... 15

Tram v. NRDC, 421 U.S. 60 (1975) .2, 5, 7, 8, 9, 17, 20, 21

Statutes:

Clean Air Act:

I a i gl 3, 10-16

Ge Rs IID oa co ccweccvedacsbcsccccer 2, 16

Gy ee SUPEETD OD cic cccccccvcececesesccs )

Judiciary and Judicial Procedures:

es ne tides ienssudedebeeesee bens me

Federal Register Notices:

39 Fed. Reg. 29,358 (1974 App. 128a)............ 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

BIG RIVERS ELECTRIC CORPORATION

KENTUCKY POWER COMPANY and

KENTUCKY UTILITIES COMPANY,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

RUSSELL E. TRAIN, ADMINISTRATOR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

Petitioners Big Rivers Electric Corporation, Kentucky

Power Company and Kentucky Utilities Company, respect-

fully pray that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Sixth Circuit entered in this proceeding on Sep-

tember 4, 1975.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Sixth Cir-

cuit was entered on September 4, 1975. This petition for

certiorart was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. $1254

(1).

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for

the Sixth Cireuit erred in construing the statement of this

Court in Train v. NRDC, 421 US. 60 (1975), that emis-

sion limitations “are regulations of the composition of

substances emitted” (at 78) as requiring affirmance of the

disapproval by the Administrator of the Environmental

Protection Agency of the alternate control strategy provi-

sion in the Kentucky air pollution implementation plan.

2. Whether the Clean Air Act authorizes the Admin-

istrator of the U. S. kxnvironmental Protection Agency to

deprive a state of the right to choose its own strategy to

satisfy the standards of §110(a)(2) of that Act (42 U.S.C.

§1857¢-5(2)) and comply with the national standards for

ambient air.

3. Whether the Clean Air Act authorizes the Admin-

istrator of the U. S. Environmental Protection Agency to

disapprove an alternate control strategy in a state air pol-

lution control plan on the grounds that it could be con-

strued to permit intermittent control measures under cir-

cumstances where constant emission controls were avail-

able.

4. Whether the Administrator of the U. S. Environ-

mental Protection Agency acted arbitrarily, capriciously

and unlawfully in deleting Kentucky air pollution regula-

tion AP-1 Section 1(b) providing for an alternate control

strategy as a part of his act in approving the Kentucky

implementation plan.

STATUTORY PROVISIONS INVOLVED

The Clean Air Act amendments of 1970, 42 U.S.C.

§1857a-j (the “Clean Air Act’’).

STATEMENT OF THE CASE

In December of 1973, the Governor of Kentucky resub-

mitted’ the Kentucky air pollution control implementa-

tion plan to the Administrator of the U. S. Environmental

1In January of 1972 the Kentucky Air Pollution Control Commission

adopted an air pollution contro! implementation plan pursuant to Section

110 of the Clean Air Act as amended and same was approved (with one

exception not relevant here) by the Administrator on May 31, 1972 with-

out having given prior notice and opportunity to comment. On June

28, 1973, the Sixth Circuit Court vacated the Administrator’s approval

for failure w comply with Section 553 of the Administrative Procedure

Act, viz., to take comments, data and other evidence from interested

parties and to express the basis for administrative actions. Buckeye

Power Co., et al. v. Environmental Protection Agency, 481 F.2d 162

(6th Cir. 1973).

Protection Agency (“Administrator”). In addition to con-

taining specific limitations on the amount of sulfur dioxide

that a given source could emit, the plan contained an im-

portant alternate control strategy provision designated

AP-1 Section 1(b), which read as follows:

“Where it is demonstrated to the satisfaction of

the Commission that an air contaminant source can

apply am alternate control strategy which will

provide for achievement and maintenance of appli-

cable ambient air quality standards, the Commis-

sion may, under such terms and conditions as it

deems appropriate, authorize such a control stra-

tegy after a public hearing.” (Emphasis added.)

On August 9, 1974, the Administrator approved the plan

except for the above provision. The reason given is as fol-

lows:

“In his original approval of May 31, 1972 (37 FR

10842), the Administrator took note of the fact that

a number of State plans contained optional control

regulations of this sort. At that time, the Admin-

istrator took no action on these regulations, but ad-

vised the States that any application of them to

specific sources would constitute a plan revision.

It is now his opinion that this proviston of the Ken-

tucky plan—if not specifically disapproved—could

be constrwed to permit intermittent control meas-

ures umder circumstances where constant emission

controls were available. To eliminate the possibility

of such an interpretation, section 1(b) of AP-1 is

disapproved as failing to meet the requirements of

40 CFR 51.12.” (39 Fed. Reg. 29358 (1974 App.

128a)) (Emphasis added.)

Certain electric utilities (the “Utilities”) and the Ten-

nessee Valley Authority (“TVA”), serving many thousands

of customers in Kentucky, filed petitions with the United

States Court of Appeals for the Sixth Cireuit (“Court of

Appeals”) to review this action of the Administrator pur-

suant to the Clean Air Act (42 U.S.C. §1857h-5(b) (1)). The

Court of Appeals denied the petition for review on the sur-

prising basis of a definition in the very recent decision of

this Court in Tram v. NRDC, 421 U.S. 60 (1975) (“Train

case”), which stated that emission limitations “are regula-

tions of the composition of substances emitted.” (Slip

opinion at 16-17) (Emphasis added.) The Court of Appeals

stated :

“Thus the question in this case is whether the

emission limitations requirement of Section 110(a)

(2) (B) was satisfied by the Kentucky Plan in view

of its provision permitting an air contaminant

source to apply an alternate control strategy. If the

requirement was satisfied, the Administrator was

required to approve the Plan as submitted. In

Train v. NRDC, the Supreme Court provided a

definition of ‘emission limitations’ as follows:

As we have already noted, primary ambient

air standards deal with the quality of outdoor

air, and are fixed on a nationwide basis at levels

which the Agency determines will protect the pub-

lic health. It is attainment and maintenance of

these national standards which $110(a)(2)(A) re-

quires that state plans provide. In complying

with this requirement a State’s plan must in-

clude ‘emission limitations, which are regulations

of the composition of substances emitted into the

ambient air from such sources as power plants,

service stations, and the like. They are the speci-

fic rules to which operators of pollution sources

are subject, and which if enforced should result

in ambient air which meets the national stand-

ards. Jd. at — (slip opinion at 16-17).

“The key word in this definition is ‘composition.’

The pertinent definition of ‘composition’ in Web-

ster’s Third New International Dictionary appears

to be ‘the nature of a chemical compound or mix-

ture as regards the kind and amounts of its con-

stituents. ...’ Under this definition a rule or regu-.

lation pertaining to sulfur dioxide or any other

contaminant, would qualify as an emission limita-

tion only if it regulates the amount of that kind

of material which may be included in the emission

from a given source.

“ . . . The Administrator determined that the

provision of the Kentucky Plan which he dis-

approved was susceptible of a construction which

would permit state approval of measures not within

the definition of ‘emission limitations’ without a

showing that measures which satisfy that definition

were unavailable. We find that the Administrator

acted within the scope of his authority, that his de-

cision was not arbitrary and did not constitute an

abuse of discretion.” (Opinion at 9-12)

Petitioners herein seek a writ of certiorari for this Court

to review that decision.

ii “he

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW ERRONEOUSLY CONSTRUES A

DEFINITION IN THE OPINION OF THIS COURT IN THE

TRAIN CASE AS BEING DECISIVE OF AN ISSUE OF

NATIONWIDE IMPORTANCE WHICH WAS NOT EVEN

INVOLVED IN THAT CASE.

The Court of Appeals has construed the Train case as in

effect deciding an issue which was clearly not before the

Supreme Court for decision.

The Train case involved a review of only one issue de-

cided by the U. S. Court of Appeals for the Fifth Circuit,

NRDC v. EPA, 489 F.2d 390 (Sth Cir. 1974). The Georgia

implementation plan which was the subject matter of that

case involved certain regulatory measures for attainment

of ambient sulfur dioxide standards. There were limitations

on the permissible sulfur content of the fuel used by sta-

tionary sources and quantitative sulfur dioxide emission

limits were prescribed which varied according to a source’s

stack height. It also contained certain variance provisions.

One of the attacks on the plan in the Fifth Circuit was

the method of prescribing emission limitations. A second

attack was upon the variance provisions. The circuit

court’s decision on the -ariance provisions was the only

issue as to which the agency petitioned for certiorari and

the only one decided by the Supreme Court. There was no

decision on alternate emission controls. Thus, the deci-

sion in the Train case states:

“ ...Its plan provided for immediately effective

categorical emission limitations, ,but also incorpor-

ated a variance procedure whereby particular

sources could obtain individually tailored relief

from general requirements. This variance provision,

Ga. Code Ann. §§$88-912, was one of the bases upon

which the Agency’s approval of the Georgia plan

was successfully challenged by respondents in the

Court of Appeals. 7t ts the only aspect of that

court's de ision as to which the Agency petitioned

for certiorari.” (Opinion at 7-88) (Emphasis ad-

ded.)

Thus even though the Train case specifically only dealt

with and decided one issue relating to variances, the Sixth

Cireuit Court (as shown by the portion of the opinion

quoted above) viewed 11 words in the opinion, «.e., “ ‘emis-

sion limitations’, which are regulations of the composition

of substances emitted.”, as requiring a decision that the

Administrator was justified in disapproving an alternate

control strategy provision which he thought could be con-

strued to permit intermittent control measures. The Train

case expressly did not decide any issue relating to alter-

nate control strategies or mtermittent controls. By reason

of the limited appeal in that case these issues remain open

for decision by the Supreme Court and are of such mag-

nitude that they should not be deemed to have been deter-

mined in advance by an 11-word definition in an opinion

which did not address this issue.

The foregoing erroneous construction of the Train case

should not be left standing. To do so would give the Train

case the unintended effect of having conclusively decided

one of the most important issues which exists today relating

to the proper construction of the Clean Air Act. Such is-

sue should be decided by the Supreme Court in this case

where both sides can be fully presented.

It is urgent that the misinterpretation and misapplica-

tion of the Train case be cleared up at this time by the

Supreme Court.

2. THE DECISION BELOW DEPRIVES THE STATES OF

THE VITAL RIGHT, WHICH THE SUPREME COURT REC-

OGNIZES IS RESERVED TO THEM BY THE CLEAN AIR

ACT, TO CHOOSE WHATEVER MIX OF EMISSION LIMI-

TATIONS THEY DEEM BEST SUITED TO THEIR PAR-

TICULAR SITUATION.

While, as stated above, the Train case decided only the

issues relating to variances, one portion of the opinion on

variances involved states’ rights versus federal rights un-

der the Clean Air Act. This states’ rights portion of the

opinion does have applicability to any case involving such

state-federal conflict. This Court held in the Train case:

“The Agency is plainly charged by the Act with

the responsibility for setting the national ambient

air standards. Just as plainly, however, it is rele-

gated by the Act to a secondary role in the process

of determining and enforcing the specific, source-

_ by-source emission limitations which are necessary

if the national standards it has set are to be met.

Under §110(a)(2), the Agency is required to ap-

prove a state plan which provides for the timely

attainment and subsequent maintenance of ambient

air standards, and which also satisfies that section’s

other general requirements. The Act gives the

Agency no authority to question the wisdom of a

State’s choices of emission limitations if they are

part of a plan which satisfies the standards of

§$110(a)(2), and the Agency may devise and pro-

mulgate a specific plan of its own only if a State

fails to submit an implementation plan which satis-

fies those standards. §110(¢). Thus, so long as the

ultimate effect of the State’s choice of emission

limitations is compliance with the national stand-

ards for ambient air, the State is at liberty to adopt

whatever mix of emission limitations it deems best

suited to its particular situation.” 421 U.S. at 79.

The states’ rights issue is one of paramount importance

in this case regarding the alternate control strategy provi-

sion in the Kentucky plan. Kentucky had done exactly

what the Clean Air Act permitted it as a state to do—it

reserved the right to adopt whatever mix of emission limi-

tations it deemed best suited to its particular situation to

achieve and maintain the applicable ambient air qualiy

standards.

Some examples to illustrate the foregoing are as follows:

A state might deem it desirable to set a very strict emis-

sion limitation of general applicability on sulfur dioxide

such as 1 lb. per million BTU. If low sulfur coal (about

.6% sulfur) were available, such coal would have to be

used at all times in a coal-burning boiler to meet such

limitation. However, the state also might recognize that

at some locations and umder certain circumstances the

strict emission limitation was not necessary to attain and

maintain the ambient sulfur dioxide standard. In such in-

stances it might deem it wise to permit an alternate con-

trol strategy involving a less stringent emission limita-

tion. At such location an emission limitation of 4 lbs. per

million BTU might be adequate to meet the ambient stand-

ards. Under such circumstances an alternate control

strategy of burning a coal of a higher sulfur content (say

2.4% sulfur) might be permitted and still adequately com-

ply with the emission limitation and meet the ambient

standard. At still another location, under a different set

of circumstances, where meteorological conditions might

vary, an emission limitation of 4 lbs. per million BTU

might be adequate during most of the year to meet the am-

bient requirement but at other times an emission limita-

tion of 1 lb. per million BTU might be necessary. Under

these conditions a coal-fired electric utility boiler’s alter-

nate compliance strategy might include: (a) switching to

a low sulfur fuel during those periods, (b) shifting the

load to boilers in other locations, or (c) possibly purchasing

power from other sources. The modeling to determine the

particular emission limitation figure necessary to meet the

ambient requirements should properly take into account

stack height. The Georgia plan involved in the Fifth Cir-

cuit case did precisely that and the court struck it down. As

stated above, this issue was not brought before the Su-

preme Court.

In all instances discussed above there would be emis-

sion limitations and the ultimate effect would be compli-

ance with the national standards. In all instances there

would be an exercise of the right of the state to choose its

own mix of emission limitations under the Clean Air Act,

as construed by the Supreme Court. Jn all instances such

reguations would also regulate the composition (i.e., sul-

fur dioxide) of substances emitted. The foregoing would

be true even when a so-called intermittent control strategy

is permitted. While the numbers might vary, there would

always be some type of emission limitations. There is

nothing in the Clean Air Act or the Supreme Court’s con-

struction of it which requires that the emission limitations

be the same at all times and under all circumstances. The

result—meeting the ambient standards—is the test empha-

sized by the Supreme Court.

Even if it were theoretically possible to devise a so-

called intermittent control strategy which the Administra-

tor might find did not comply with the Clean Air Act, he

had no right to disapprove in advance a provision such as

was contained in the Kentucky plan. There are many stra-

tegies which would comply and there is nothing in the

Clean Air Act or the Supreme Court’s construction there-

of which authorizes the Administrator to deprive the state

of the right to adopt whatever mix of emission limitations

it deems best suited to its particular situation simply be-

cause he fears it might be contrary to law. If a new

strategy were allowed by the state as an amendment to the

plan, the Administrator would have ample opportunity to

pass his judgment on its legality when the amendment was

submitted to him. That is the time for such a decision, not

an advance speculation as to what might be done.

The need for this Court to clarify the right of a state to

have flexibility in choosing its own mix of emission stan-

dards is emphasized by the conflict which exists in the de-

cisions of the circuit courts relating to the economic and

technological feasibility of meeting an inflexible single

emission standard. A recent case decided by the United

States Court of Appeals for the Third Circuit, Duquesne

Light Company v. EPA, — F.2d —, 8 ERC 1065 (3rd Cir.

1975), recognized these problems. In that case the peti-

tioners claimed that the approval by the Administrator

of the EPA of the sulfur oxide emission limitations of the

Pennsylvania implementation plan was arbitrary and un-

reasonable because it was not economically and technologi-

cally feasible to meet them. The court remanded the mat-

ter to the Administrator for further consideration of those

issues. In regard to the economic feasibility, the court

stated :

“Thus the Administrator’s statement in support

of the plan merely declares that the costs should be

passed on to the utilities’ customers. He makes no

attempt to evaluate the severity of the problems

the companies have pointed to with respect to the

unfavorable impact such increases may have on the

economic structure of their service territories. A

23% or 35% increase may reasonably be expected

to raise the cost of living and seriously diminish the

level of business activity, thus increasing the inci-

dence of unemployment and occasioning consider-

able hardship to many people. The EPA has not

sought to controvert the inference of a disadvan-

tageous impact on the regional economy, nor has it

sought to measure the magnitude of such effects.”

8 ERC 1071.

The court also found that there was a lack of evidence

of technological feasibility.

“ ... The present record does not, however, seem

to contain the technical data necessary for a ra-

tional determination that past experience with flue

gas desulfurization devices, under conditions ad-

mittedly at variance from those that will be ex-

perienced by the protesting utilities, provides a suf-

ficient basis for widespread installation of secrub-

bers. There is little to specify at what pace the tech-

nology will develop, and there is also a paucity of

testimony regarding the cost of adjustments neces-

sary to render currently produced equipment effec-

tive and reliable. Without some evidence that such

technical data was available to the Administrator

when he approved the emission limitations, we

would be hesitant to conclude that he had not

acted arbitrarily.” 8 ERC 1074.

The conflict in other decisions on these issues is re-

viewed by the court:

“36. The Court is cognizant that in Essex Chem-

ical Corp. v. Ruckelshaus, 486 F.2d 427, 440 (1973)

the District of Columbia Circuit, in approving the

federal emission standards for new sources of pol-

lutants held that the availability of flue gas de-

sulfurization devices for coal-burning power plants

was adequately demonstrated. That decision was

based on a different record from that presently be-

fore this Court. In promulgating those emission lim-

itations the Administrator had pointed primarily

to the Meramac No. 2 station of the Union Electric

Co. and the Lawrence No. 4+ unit of the Kansas

Power and Light Co. as demonstrating the avail-

ability of scrubber technology. The Arlington hear-

ings, however, established that neither of those is

currently regarded as a successful operation, and

the Meramac station has been abandoned.

“In Commonwealth v. Pennsylvania Power Co.,

337 A.2d 823 (1975), the Pennsylvania Supreme

Court affirmed a ruling that Pennsylvania Power

was not in contempt of court for not complying

with the Pennsylvania implementation plan in 1972.

The ruling is based in part upon the Supreme

Court’s affirmation of the trial court’s conclusion

that in 1972 serubbers had not been shown to be

technologically feasible. The Pennsylvania courts

did not intimate any views regarding the feasibility

of scrubbers at any later date.

“A hearing panel of the Ohio EPA, see footnote

26, has determined after an adversary hearing that

scrubbers are not presently available for installa-

tion by coal-burning utilities. That decision has been

stayed pending review by the director of the state

EPA.

“The Seventh Circuit in Indiana & Michigan

Power Co. v. Environmental Protection Agency,

509 F.2d 839, 843 (1975), has upheld the Adminis-

trator’s approval of the Illinois and Indiana sulfur

oxide emission restrictions in spite of allegations

that meeting such limitations is technologically in-

feasible. That Court decided, however, that, con-

trary to our decision in Getty Ou, Duquesne Light

I, and St. Joe Minerals, the Administrator is not

required to evaluate the technological and econo-

mic feasibility of the plan before approving it.

Rather, that court held, those factors should be

considered in enforcement proceedings.

“An Illinois appellate court, however, in Com-

monwealth Edison v. Pollution Control Board, 25

Ill. App. 3d 271, 323 N.E. 2d 84 (1975), has held

that state’s sulfur oxide emission controls arbitrary

and unreasonable, because, inter alia, scrubbers had

not been demonstrated to be workable.” 8 ERC

n. 1074.

The need for flexibility in a state plan was recognized

by the Ninth Cireuit in the case of NRDC v. EPA, 507 F.

2d 905 (9th Cir. 1974):

“. . . As long as a possible variance from a state

plan will not preclude the attainment or mainten-

ance of such standards, we discern no legislative in-

tent to commit a state, in toto, to its initial plan,

without any flexibility whatsoever. ...” (507 F.2d

913.)

The need for flexibility in a state plan to avoid over-

kill as recognized in the Train case and other circuit court

cases reviewed above is infact mandated by the Clean Air

Act, Section 110(a)(2)(B) (42 U.S.C. §1857e-5(a)(2)(B)).

That section provides that the Administrator must deter-

mine whether a plan ‘‘includes emission limitations . . .

and such other measures as may be necessary to insure

attainment and maintenance of such primary or secondary

standard.” (Emphasis added.)

In one sense the ‘‘as may be necessary to insure attain-

ment” language restates the requirement of subparagraph

(A) that the provisions of the plan must be such as to in-

sure attainment of the standards. But this aspect of sub-

paragraph (B) would be totally redundant if it did noth-

ing more than state that plan provisions must assure at-

tainment of the standards. Both logic and common sense

would suggest that subparagraph (B) was intended to

impose some additional requirement, and the statutory lan-

guage supports this conclusion, for the word “necessary”

includes the connotation that a state implementation plan

may not be approved by the Administrator if it contains

emission limitations or other controls that are not required

to insure attainment of the standards. In short, if a par-

ticular emission limitation or other control could be shown

to be overly restrictive and thus not necessary to assure

attainment, then it would not fall within the precise word-

ing of Section 110(a) (2)(B).

Another section of the Act indicating the need for flexi-

bility is Seetion 110(a)(2)(A)(i) (42 U.S.C. $1857¢e-5(a)

(2)(A)(i)), which requires a plan to provide for the at-

tainment of the primary standards not later than three

years from the daté of its approval and within a reasonable

time for attainment of the secondary standards. These

time requirements necessitate taking into consideration

the technological and economic feasibility of compliance.

Such considerations in turn mandate flexibility of compli-

ance strategies.

While an extensive review of legislative history would

be too lengthy for this petition, if certiorari is granted peti-

tioners will show that such history supports their position.

The foregoing clearly shows the right, and in fact the

duty, of states to adopt whatever mix of emission limita-

tions they deem necessary, but not more than necessary in

their particular situation, to meet the ambient standards.

The decision below construing the Train case as depriving

all 50 states of this right and obligation should be reviewed

by this Court.

3. THE MAGNITUDE OF THE IMPACT ON THE NATION

OF THE ISSUES INVOLVED IN THIS CASE MAKES THEIR

RESOLUTION BY THE SUPREME COURT URGENT.

This is not just a case which affects the rights of the

parties involved. The Clean Air Act has an enormous im-

pact on every person in this country and on our troubled

energy-dependent economy. Nearly every person in the

country is a user of electricity and it is a vital energy

source to help achieve our national goal of energy self-

sufficiency. A uniform and proper construction of that

Act by the Supreme Court is therefore of very great impor-

tance.

The staggering cost to the consumers of electricity of

the overkill which would result if the states were not per-

mitted to adopt whatever mix of emission limitations they

deem best suited to their particular situation is shown by

published estimates in this regard. A recent study per-

formed by the Federal Energy Administration (FEA)

estimates the average capital costs for flue gas desulfuriza-

tion (FGD) systems as $100 per kilowatt.* The final Re-

2 Office of Fuel Utilization, Federal Energy Administration, Draft

Environmental Statement, Coal Conversion Program, Energy Supply and

Environmental Coordination Act of 1974, Section 2, DES 75-1, January

$1, 1975, page 183.

port of the Sulfur Oxide Control Technology Assessment

Panel (at page 8) (SOCTAP) estimates that by the end

of 1977 the equipped utility capacity may be up to 80,000

Mwe (80,000,000 kilowatts). This would represent an ex-

penditure of over $8 billion and would involve only about

40% of the utility heat required from coal in that year.

The SOCTAP report further estimates that at least 75%

of the coal-fired capacity conceivably could be equipped with

serubbers by 1980. Such an increase would correspond-

ingly magnify the 1977 figures. The FEA has also esti-

mated the total annual cost of FGD systems to be on the

order of 5.5 mills per kilowatt hour.’ In a state such as

Kentucky this could result in as much as a 46% increase

above the rate paid by consumers of electricity produced

by the average Kentucky plant in 1973.‘ Similar examples

could be presented for other states.

The inflationary effect of such huge expenditures and

resulting rate increases is indeed alarming. The multiplier

effect of passing on increased costs of electricity incurred

in many manufacturing processes which are heavy users

of electricity makes the picture even darker. Certainly the

right of a state to avoid overkill and eliminate needless

expenditures without endangering the ambient standards

is vital.

In our nation’s struggle to avoid the perils of being de-

pendent on foreign sources of energy, it is recognized that

our abundant supply of coal is our most valuable resource.

To force electric ultilities to abandon much of the coal re-

3 Office of Fuel Utilization, Federal Energy Administration, Draft

Environmental Statement, Coal Conversion Program, Energy Supply and

Environmental Co-ordination Act of 1974, Section 2, DES 75-1, January

31, 1975, page 178.

* Edison Yearbook, 1973, Tables 225, 365.

sources of the eastern half of the country in favor of oil,

gas and low sulfur western coal is in direct conflict with

that goal. This result is forced by the prohibitive costs

and unproven reliability of so-called scrubbers as a means

of attempting to meet unnecessarily strict and inflexible

sulfur dioxide emission regulations if higher sulfur eastern

coal is used. Also inherent in this shift of fuels is the dis-

location of and hardship to thousands of workers and their

families who now mine much of the national coal supply.

If the states are permitted the flexibility to provide for

alternate control strategies best suited to their particular

situations, the disastrous consequences summarized above

can be avoided. It is also of paramount importance to em-

phasize that such flexibility will not prevent the attainment

and maintenance of ambient standards—the important fac-

tor emphasized in the Train case. On the contrary, the

standards will be achieved and maintained. Only overkill

will be prevented.

It is apparent that this question will continue to be

brought before the federal courts. For example, in addi-

tion to the cases already discussed, the case of Kennecott

Copper Corp. v. Train, case #75-1335, (9th Cir. Filed Feb.

11, 1975) is presently pending in the Ninth Circuit and deals

with issues which are very similar to the case at bar. In

Kennecott, the Administrator of the EPA disapproved a

state implementation plan as it related to smelters and pro-

mulgated its own regulation requiring more strict emission

reductions and limitations than Nevada had originally im-

posed. While the state regulation did require the mainten-

ance of ambient standards, it also allowed intermittent con-

trol systems as a means of attaining and maintaining am-

bient standards. Using a rationale similar to that applied

to the Kentucky plan, the Administrator disapproved the

Nevada plan on the basis that constant control strategies

must be used whenever possible in reliance on the Fifth

Circuit decision in NRDC v. Train. The Ninth Circuit has

not yet issued an opinion. However, regardless of the re-

sult, the resolution of these issues is needed by the Supreme

Court. If the Ninth Circuit decides in favor of alternate

control strategies, there will be a conflict of circuit court

decisions, and, if the decision is similar to that of the Sixth

Circuit, the error of that case will be compounded.

As indicated above, if certiorari is granted, Petitioners

in this ease will show that the language of the Clean Air

Act itself, as well as its legislative history clearly permit

an alternate control strategy such as the one in the Ken-

tucky plan. In sum, we submit that the decision in the case

at bar as well as the second issue in the Fifth Cireuit’s de-

cision in the Train case (which was not appealed to or de-

cided by this Court) were wrong. The nature of the subject

matter causes such error to have the far-reaching impact

discussed above.

A definitive interpretation of the Clean Air Act con-

cerning the issues involved will serve the national interest

in a most significant way.

CONCLUSION

Clearly, this case involves an important question of

federal law which has not been, but should be, settled by

this Court. The misinterpretation and misapplication of

this Court’s decision in the Train case, the nationwide ap-

plicability of the issues, the importance of preserving

rights of states to have flexibility in implementation plans,

the far reaching economic impact of such plans, and their

relationship to the energy cri**, as well as the need for

uniform interpretation, make it particularly important that

this petition for a writ of certiorari be granted.

Respectfully submitted,

November 26, 1975. ke Wy

SON W. SNYDER

300 Madison Avenue (

P.O. Box 2088

Toledo, Ohio 43603

Attorney for Petitioners

Of Counsel:

A. JOSEPH DOWD

2 Broadway

New York, New York 10004

APPENDIX

OPINION

No. 74-2015

No. 74-2020

UNITED STATES COURT OF APPEALS

For the Sixth Circuit

Big Rivers Electric Corporation, )

City Utility Commission of the

City of Owensboro, Kentucky,

East Kentucky Rural Electric

Cooperative Corporation, Ken-

tucky Power Company, Kentucky

Utilities Company, The Utility | Petitions for Review

Commission for the City of Hen- | of Action of the Ad-

derson, Kentucky Municipal | ministrator of the

Power and Light System, . Environmental Pro-

Petitioners, | tection Agency.

Commonwealth of Kentucky, Pea-

body Coal Company, |

Intervenors,

Environmental Protection Agency,

Russell E. Train, Administrator,

Respondents. ;

Tennessee Valley Authority, }

Petitioner,

Environmental Protection Agency

and Russell EK. Train, Administra-

tor,

Respondents,

National Resources Defense Coun- (

cil, Inc.,

Intervenor,

Ed W. Hancock, Attorney General

of the Commonwealth of Ken-

tucky,

Decided and Filed September 4, 1975.

Before: Celebrezze, Miller and ‘Lively, Cireuit Judges.

Lively, Cireuit Judge. The underlying question in this

case is whether the Administrator of the Environmental

Protection Agency (KPA) properly disapproved a state

regulation promulgated under the Clean Air Act Amend-

ments of 1970, 42 U.S.C. §§ 1857a-} (Supp. 1975), which

would have authorized coal-burning plants (‘‘sources” in

the Act) to employ ‘‘alternate control strategies” for the

control of air pollution by sulfur oxide gases without show-

ing that constant emission controls of such pollutants are

unavailable. Constant emission controls are achieved pri-

marily by the installation of “scrubbers.” The alternate

control method employed by the petitioners consists prin-

cipally of the use of intermittent emission limitations sys-

tems. The separate petitions for review filed by the Ten-

nessee Valley Authority (TVA) and several electrical utili-

ties companies operating in Kentucky (the Utilities) were

consolidated for hearing. At issue is the action of the Ad-

ministrator in disapproving a portion of the Kentucky

‘*implementation Plan for the Attainment and Maintenance

of the National and State Ambient Air Quality Standards”

(Kentucky Plan). The portion which was disapproved pro-

vided as follows:

Where it is demonstrated to the satisfaction of the

{Kentucky Air Pollution Control] Commission that

an air contaminant source can apply an alternate con-

trol strategy which will provide for achievement and

maintenance of applicable ambient air quality stand-

ards, the Commission may, under such terms and con-

ditions as it deems appropriate, authorize such a con-

trol strategy after a public hearing. Ky. Air Pollution

Control Reg. No. AP-1, § 1 (1) (b).

Original EPA approval of the entire Kentucky Plan was

vacated by this court for failure to adhere to the require-

ments of the Administrative Procedure Act. Buckeye

Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973). Sub-

sequently the Kentucky Pian, with the exception of Section

1(1)(b), supra, was approved on August 9, 1974. The

Acting Administrator of EPA stated with reference to

Section 1(1)(b), his opinion ‘‘that this provision of the

Kentucky plan—if not specifically disapproved—could be

construed to permit intermittent control measures under

circumstances where constant emission controls were avail-

able.” To eliminate the possibility of such an interpreta-

tion the section was specifically disapproved for failure

to meet the requirements of controlling federal regula-

tions.

The Utilities and TVA maintain that EPA’s disapproval

of the quoted provision of the Kentucky Plan will prevent

them from meeting the established air quality standards

by use of “intermittent emission limitation” systems which

are much less costly than scrubbers. The petitioners argue

that the purpose of the Clean Air Act is to establish na-

tional standards of air quality within a scheme of dual

responsibility which leaves to the States the task of for-

mulating actual emission standards. They maintain that

Congress has made air pollution control a partnership

venture in which EPA sets standards and each State de-

termines the methods best suited for reaching those stan-

dards within its geographical boundaries. Thus they ar-

gue that the Administrator has exceeded his statutory au-

thority in disapproving a portion of the Kentucky Plan

dealing only with a permissible method of controlling air

quality while finding that the Plan otherwise met the na-

tiona! standards. In the alternative they contend that even

if the Administrator possessed such power, his action in

disapproving the Kentucky provision for an alternate

strategy was arbitrary and constituted an abuse of dis-

cretion.

Jurisdiction

Though the question has not been raised by any of the

parties there is an issue with respect to the court’s juris-

diction to consider these petitions. Judicial review of ac-

tions of the Administrator is provided for in Section 307

of the Act, 42 U.S.C. § 1857h-5(b)(1) as follows:

...A petition for review of the Administrator’s ac-

tion in approving or promulgating any implementa-

tion plan under section 1857c-5 of this title . . . may

be filed only in the United States Court of Appeals

for the appropriate circuit... .

There is no statutory provision for review of an action

disapproving a plan or portion thereof because disapproval

is not a final administrative action. Utah International, Inc.

v. EPA, 478 F.2d 126 (10th Cir. 1973). However, all par-

ties including the Administrator have treated his action

as a final approval of the Kentucky Plan with the dis-

approved portion eliminated, and we treat the proceedings

as a petition for review of the approval of the Plan.

The Mootness Issue

The Commonwealth of Kentucky, by its Attorney Gen-

eral, has been permitted to intervene in these proceedings,

and has made a motion to dismiss them as moot. EPA

has also filed a motion to dismiss on the same ground. The

Kentucky General Asseinbly in 1974 required administra-

tive agencies of the Commonwealth, including the Depart-

ment for Natural Resources and Environmental Protection

(the Department), to file all their regulations by July 1,

1975. On March 1, 1975, the Department caused its pro-

posed regulations to be printed in the Administrative Reg-

ister, the official compilation of such regulations. On July

2, 1975, final review of the regulations took place and the

new regulations became effective as of June 6, 1975. The

current air pollution control regulations do not contain the

language of Section 1(1)(b) of the former regulation or

any equivalent provision which would permit approval by

the Department of alternate control strategies. Thus it is

argued that there is no case or controversy to be decided

since the questioned regulation is no longer in force.

The jurisdiction of federal courts is limited by Article

III of the Constitution to consideration of actual cases

and controversies. Thus federal courts do not render ad-

visory opinions or continue to consider an action if the

controversy which underlies the action ceases to exist prior

to its termination. See United States v. Hamburg-American

Co., 239 U.S. 466, 475-76 (1916); California v. San Pablo

é Tware R. R., 149 U.S. 508, 314 (1893). For more recent

Supreme Court pronouncements on the general doctrine

of mootness, see Roe v. Wade, 410 U.S. 113, 125 (1973);

North Carolina v. Rice, 404 U.S. 244, 246 (1971).

The mootness doctrine has limited application in at

least two related types of cases. One type is specifically

concerned with administrative orders. This limitation was

first enunciated in Southern Pacific Terminal Co. v. ICC,

219 U.S. 498 (1911), which involved preferential freight

rates. The terminal company instituted an action to chal-

lenge an order of the ICC which prohibited the granting

of such preferences. The order expired before the case

reached the Supreme Court, and the ICC argued that the

case had become moot. The Court held otherwise, stating

—The questions involved in the orders of the Interstate

Commerce Commission are usually continuing (as are man-

ifestly those in the case at bar) and their consideration

ought not to be, as they might be, defeated, by short term

orders, capable of repetition, yet evading review. ... ” Id.

at 515. This is a proper case for application of the Southern

Pacific Terminal doctrine since it concerns an order which

is clearly capable of repetition, but which would evade re-

view if the principle of mootness were strictly acplied.

The other class of cases which requires relaxation of

the mootness principle consists of those in which persons

other than the parties to the action have a tangible inter-

est or are likely to be directly affected by the outcome of

the litigation. Cases which involve public interest, or rights

of the public generally, are not necessarily rendered moot

by an act which puts an end to the particular controversies

which precipitated them. United States v. W. T. Grant Co.,

345 U.S. 629 (1953). The fact that one party to whom an

administrative order is directed elects to comply with it

should not deprive others who claim to be adversely af-

fected by the order from contesting it. Cf. Super Tire En-

gineering Co. v. McCorkle, 416 U.S. 115, 122 (1974). The

public interest in determination of the question in this case

is obvious. There is a subsisting controversy between the

petitioners and EPA over the authority of the Adminis-

trator of that agency. The action of the Kentucky Depart-

ment in no way answered the questions which this case

raises concerning the Administrator’s authority.

The motions to dismiss for mootness are denied.

The Merits

The history of the Clean Air Act Amendments of 1970

(the Act) and its scheme for achieving and maintaining air

quality through joint state-federal action are clearly de-

scribed in Buckeye Power, Inc. v. EPA, supra, 481 F.2d

at 165-66, and Natural Resources Defense Cowncil, Inc.,

v. EPA, 489 F.2d 390, 394-96 (Sth Cir. 1974), rev’d on

other issues sub nom. Train v. Natural Resources Defense

Council, Inc., — U.S. —, 48 U.S.L.W. 4467 (April 16,

1975). The dual (state-federal) approach of the Act is

basic to its structure, and this case requires a delineation

of certain areas of authority reserved to each governmen-

tal partner. The contention of petitioners that the scheme

of the Act limits the role of EPA to that of setting primary

and secondary ambient air quality standards and leaves

to the Stat.. the selection of the means of attaining and

maintaining these standards is an oversimplification.

Involved in this case is Section 110(a)(2) of the Act,

42 U.S.C. § 1875e-5(a)(2), by which the Administrator is

required to approve or disapprove each plan or portion

thereof within four months after the date required for sub-

mission by the States, approving the plan “if he determines

that it was adopted after reasonable notice and hearing”

and that

‘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;....

The respondents and the intervenor, Natural Resources

Defense Council, Inc. (NRDC), argue that the Adminis-

trator is not required to approve a plan which does not in-

clude emission limitations, and that an alternate control

strategy which is based upon intermittent emission control

measures does not meet this requirement. Such practices

are said to merely disperse the pollutants emitted from

sources without reducing the amounts. Thus, these parties

construe the language of Section 110(a)(2)(B) to mean

that a plan must require each source of pollution to apply

continuous limitations to the amount of sulfur dioxide

which it emits. (Though the limitations requirement ap-

plies to several contaminants, the present case is con-

cerned with sulfur dioxide.) The alternate control stra-

tegy advocated by petitioners would permit a source to re-

strict its emissions by switching to low sulfur fuel or re-

ducing operations at the source only during those periods

when atmospheric conditions and existing pollution levels

dictate a need for a specific source emission reduction. Im-

plemention of the alternative strategy would depend on

the aggregate of pollution in a given area rather than the

emission from any particular source.

The Fifth Cireuit dealt with the same basic issue in

NRDC v. EPA, supra, which involved a provision of the

Georgia Plan that permitted amounts of particulates and

sulfur dioxide emissions to depend on the heights of

smokestacks at the sources. The court held that this “tall

stack” approach was in conflict with Section 110(a)(2)(B)

of the Act since it resulted in the enhancement of disper-

sion of pollutants rather than limitation of their emission.

Adopting the “broad approach” interpretation of Section

110(a)(2)(B), the court concluded that the Act established

a policy of “nondegredation” of the atmosphere and that

“(t]he only techniques fully capable of guaranteeing non-

degredation are emission limitation techniques.” 489 F.2d

at 409.

The petitioners argue that the alternate control strategy

which they would employ if the disapproved portion of

the Kentucky Plan were reinstated would in fact be “emis-

sion limitations.” It is their position that the intermittent

control system provides a “flexible” emission limitation

which restricts the amounts of pollutants emitted when

atmospheric conditions require it. Thus, they contend that

a system which restricts emissions of pollutants in any

degree, if included in a plan, would qualify that plan for

approval if the other conditions of Section 110 were met.

Furthermore, the petitioners point out that Section 110

(a)(2)(B), in addition to requiring that a plan include

emission limitations, also requires the inclusion of “such

other measures as may be necessary to insure attainment

and maintenance” of air quality standards. It is contended

that “such other measures” refers to alternate control

strategies.

The respondent and intervenor NRDC rely on the Fifth

Cireuit’s answer to these arguments. That court held that

the Act mandates the use of techniques for emission reduc-

tion, and that the use of other measures is permitted only

when “necessary” in the sense that it is shown that emission

reduction techniques are “unavailable or infeasible.” 489

F.2d at 410. A plan which would permit unlimited emission

of pollutants into existing clean air and require limitation

only when emissions would cause air quality at the location

of the particular polluting source to fall below prescribed

standards would conflict with the congressional policy of

nondegredation under the Fifth Circuit’s interpretation of

the Act.

On appeal to the Supreme Court, consideration of the

Georgia Plan was limited io the question of whether var-

iances were to be treated as “revisions” of the plan under

Section 110(a)(3) or “postponements” under Section 110

(f). Train v. NRDC, supra, — U.S. at — (slip opinion at

7-8). The “tall stack” ruling was not appealed. Neverthe-

less, the Court traced the history of national clean air leg-

islation and concluded that “the heart of the 1970 Amend-

ments” is the requirement of Section 110(a)(2)(A) that

each state plan provide for attainment, within three years

of its approval, “of the national primary ambient air

quality standards in the particular State.” Jd. at — (slip

opinion at 5). After noting the requirement of Section

110(a)(2)(B) that a plan inelude ‘‘emission limitations,

schedules, and timetables for compliance with such limita-

tions,” the opinion further noted that under the statute

“it [a State plan] must also contain such other measures

as may be necessary to insure both timely attainment and

subsequent maintenance of national ambient air stand-

ards.” Jd. at — (slip opinion at 5) (emphasis added). It is

clear from this language that other measures may not be

substituted for emission limitations, but may only be pro-

vided in addition thereto.

Thus the question in this case is whether the emission

limitations requirement of Section 110(a)(2)(B) was sat-

isfied by the Kentucky Plan in view of its provision per-

mitting an air contaminant source to apply an alternate

control strategy. If the requirement was satisfied, the Ad-

ministrator was required to approve the Plan as submitted.

In Train v. NRDC, the Supreme Court provided » defini-

tion of “emission limitations” as follows:

As we have already noted, primary ambient air stan-

dards deal with the quality of outdoor air, and are

fixed on a nationwide basis at levels which the Agency

determines will protect the public health. It is attain-

ment and maintenance of these national standards

which §110(a)(2)(A) requires that state plans pro-

vide. In complying with this requirement a State’s

plan must include “emission limitations,” which are

regulations of the composition of substances emitted

into the ambient air from such sources as power

plants, service stations, and the like. They are the

specific rules to which operators of pollution sources

are subject, and which if enforced should result in am-

bient air which meets the national standards. Id. at —

(slip opinion at 16-17).

The key word in this definition is “composition.” The

pertinent definition of “composition” in Webster’s Third

New International Dictionary appears to be “the nature

of a chemical compound or mixture as regards the kind

and amounts of its constituents. ... ” Under this defini-

tion a rule or regulation pertaining to sulfur dioxide or

any other contaminant, would qualify as an emission

limitation only if it regulates the amount of that kind of

material which may be included in the emission from a

given source.

The petitioners contend that the use of the word “com-

position” by the Supreme Court was unfortunate, but that

the opinion in Trai vy. NRDC otherwise fully supports

their position. They rely particularly on the following

language :

The Agency is plainly charged by the Act with the

responsibility for setting the national ambient air

standards. Just as plainly, however, it is relegated by

the Act to a secondary role in the process of determin-

ing and enforcing the specific, source-by-souree emis-

sion limitations which are necessary if the national

standards it has set are to be met. Under §110(a) (2),

the Agency is required to approve a state plan which

provides for the timely attainment and subsequent

maintenance of ambient air standards, and which also

satisfies that section’s other general requirements. The

Act gives the Agency no authority to question the

wisdom of a State’s choices of emission limitations if

they are part of a plan which satisfies the standards

of §110(a)(2), and the Agency may devise and pro-

mulgate a specific plan of its own only if a State

fails to submit an implementation plan which satis-

fies those standards. § 110(¢c). Thus, so long as the ul-

timate effect of a State’s choice of emission limita-

tions is compliance with the national standards for

ambient air, the State is at liberty to adopt whatever

mix of emission limitations ** deems best suited to its

particular situation.

—U,S. at — (slip opinion at 17).

We cannot assume that the word “composition” was im-

precisely used. The language quoted above follows the

Court’s definition of emission limitations and must be

read in the light of it.

No plan satisfies the requirement of Section 110(a) (2)

(B) which might be construed to permit a source of pol-

lutant emissions to continue operating beyond the time

limit established in Section 110(a)(2)(A) without the ap-

plication of one or more systems which control the “kind

and amounts” of its air contaminant emissions. The Ad-

ministrator determined that the provision of the Kentucky

Plan which he disapproved was susceptible of a construc-

tion which would permit state approval of measures not

within the definition of “emission limitations” without a

showing that measures which satisfy that definition were

unavailable. We find that the Administrator acted with-

in the scope of his authority, that his decision was not

arbitrary and did not constitute an abuse of discretion.

The first purpose of the 1955 Clean Air Act was stated

to be “to protect and enhance the quality of the Nation’s

air resources. ... ” 42 U.S.C. §1857(b)(1). As the Su-

preme Court pointed out in Train v. NRDC the states

responded slowly to expressions of congressional concern

about air pollution between 1955 and 1970, and “Congress

reacted by taking a stick to the States in the form of the

Clean Air Amendments of 1970... .” — U.S. at — (slip

opinion at 2). The national policy is to reduce air pollution.

Under the dual scheme, the freedom of the States to choose

the manner of achieving this goal was made subject to the

absolute requirement that every state plan include emis-

sion limitations as an ingredient. Nothing in the legislative

history of the Act suggests that the Administrator has

misinterpreted the congressional will in his construction

of Section 110(a)(2)(B). As the Supreme Court noted in

Train v. NRDC, interpretations of this comp.ex statute

by the agency charged with administering it are entitled

to great deference. Udall vy. Tallnan, 280 U.S. 1, 16-18

(1965) ; McLaren vy. Fleischer, 256 U.S. 477, 480-81 (1921).

This court finds no reason to substit~i< its judgment for

that of EPA in construing the Act.

The petitions for review are denied.

Pertinent Provisions of Clean Air Act, as Amended,

42 ULS.C.A. §§ 1857 Et Seq. (1974) Supp.

42 §1857e-3 PUBLIC HEALTH AND WELFARE

§1857c-3. Air quality criteria and control techniques

—Air pollutant list; publication and revision by Adminis-

trator; issuance of air quality criteria for air pollutants.

(a) (1) For the purpose of establishing national pri-

mary and secondary ambient air quality standards, the

Administrator shall within 30 days after December 31,

1970, publish, and shall from time to time thereafter re-

vise, a list which includes each air pollutant—

(A) which in his judgment has an adverse effect

on public health or welfare;

(B) the presence of which in the ambient air re-

sults from numerous or diverse mobile or stationary

sources; and

sued before December 31, 1970, but for which he plans

to issue air quality criteria under this section.

(2) The Administrator shall issue air quality criteria

for an air pollutant within 12 months after he has in-

cluded such pollutant in a list under paragraph (1). Air

quality criteria for an air pollutant shall accurately re-

flect the latest scientific knowledge useful in indicating the

kind and extent of all identifiable effects on public health

or welfare which may he expected from the presence of

such pollutant in the ambient air, in varying quantities.

The criteria for an air pollutant, to the extent practicable,

shall include information on—

-——

(A) those variable factors (including atmospheric

conditions) which of themselves or in combination

with other factors may alter the effects on public

health or welfare of such air pollutant;

(B) the types of air pollutants which, when present

in the atmosphere, may interact with such pollutant

to produce an adverse effect on public health or wel-

fare; and

welfare.

Issuance by Administrator of information on air pollution

control techniques; standing consulting committees

for atr pollutants; establishment; membership

(b) (1) Simultaneously with the issuance of criteria un-

der subsection (a) of this section, the Administrator

shall, after consultation with appropriate advisory com-

mit‘ »s and Federal departments and agencies, issue to

the States and appropriate air pollution control agencies

information on air pollution control techniques, which in-

formation shall include data relating to the technology

and costs of emission control. Such information shall in-

clude such data as are available on available technology

and alternative methods of prevention and control of air

pollution. Such information shall also include data on al-

ternative fuels, processes, and operating methods which

will result in elimination or significant reduction of emis-

sions.

(2) In order to assist in the development of informa-

tion on pollution control techniques, the Administrator

may establish a standing consulting committee for each

air pollutant included in a list published pursuant to sub-

section (a) (1) of this section, which shall be comprised

of technically qualified individuals representative of State

and local governments, industry, and the academic com-

munity. Each such committee shall submit, as appropriate,

to the Administrator information related to that required

by paragraph (1).

Review, modification, and reissuance by Administrator

and, as appropriate, modify, and reissue any criteria or

information on control techniques issued pursuant to this

section.

Publication in Federal Register; availability of copies

for general public

(d) The issuance of air quality criteria and information

on air pollution control techniques shall be announced in

the Federal Register and copies shall be made available

to the general public.

July 14, 1975, ¢. 360, Title I, § 108, as added Dee. 31, 1970,

Pub.L. 91-604, § 4(a), 84 Stat. 1678.

§ 1857c—4. National primary and secondary ambient

air quality standards; promulgation; procedure

fa) (1) The Administrator—

(A) within 30 days after December 31, 1970, shall

publish proposed regulations prescribing a national

primary ambient air quality standard and a national

secondary ambient air quality standard for each air

pollutant for which air quality criteria have been is-

sued prior to such date; and

(B) after a reasonable time for interested persons to

submit written comments thereon (but no later than

90 days after the initial publication of such proposed

standards) shall by regulation promulgate such pro-

posed national primary and secondary ambient air

quality standards with such modifications as he deems

appropriate.

(2) With respect to any air pollutant for which air

quality criteria are issued after December 31, 1970, the

Administrator shall publish, simultaneously with the issu-

ance of such criteria and information, proposed national

primary and secondary ambient air quality standards for

any such pollutant. The procedure provided for in para-

graph (1) (B) of this subsection shall apply to the pro-

mulgation of such standards.

(b) (1) National primary ambient air quality standards,

prescribed under subsection (a) of this section shall be

ambient air quality standards the attainment and main-

tenance of which in the judgment of the Administrator,

based on such criteria and allowing an adequate margin

of safety, are requisite to protect the public health. Such

primary standards may be revised in the same manner as

promulgated.

(2) Any national secondary ambient air quality stan-

dard prescribed under subsection (a) of this section shall

specify a level of air quality the attainment and mainten-

ance of which in the judgment of the Administrator, based

on such criteria, is requisite to protect the public welfare

from amy known or anticipated adverse effects associated

with the presence of such air pollutant in the ambient air.

Such secondary standards may be revised in the same

manner as promulgated.

July 14, 1955, c. 360, Title I, § 109, as added Dee. 31, 1970,

Pub.L. 91-604, §4(a), 84 Stat. 1679.

§ 1857c—5. State implementation plans for national pri-

mary and secondary ambient air quality standards—Sub-

mission to Administrator; time for submission; State pro-

cedures; required contents of plans for approval by Ad-

ministrator; approval of revised plan by Administrator

(a) (1) Each State shall, after reasonable notice and

public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national

primary ambient air quality standard (or any revision

thereof) under section 1857-—4 of this title for any air

pollutant, a plan which provides for implementation, main-

tenance, 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

enforcement of such secondary standard in each air qual-

ity control region (or portion thereof) within such State.

Unless a separate public hearing is provided, each State

shall consider its plan implementing such secondary stan-

dard 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 para-

graph (1), approve or disapprove such plan or each por-

tion 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 na-

tional primary ambient air quality standard, it pro-

vides for the attainment of such primary standard as

expeditiously as practicable but (subject to subsec-

tion (e) of this section) 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

ste adard); and (ii) in the case of a plan implementing

a national secondary ambient air quality standard,

it specifies a reasonable time at which such secondary

standard 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 sec-

ondary standard, including, but not limited to, land-

use and transportation controls;

eration of appropriate devices, methods, systems, and

procedures necessary to (i) monitor, compile, and an-

alyze data on ambient air quality and, (ii) upon re-

quest, make such data available to the Administrator;

(D) it includes a procedure, meeting the require-

ments of paragraph (4), for review (prior to construc-

tion or modification) of the location of new sources to

which a standard of performance will apply;

(E) it contains adequate provisions for intergov-

ernmental cooperation, including measures necessary

to insure that emissions of air pollutants from sources

located in any air quality control region will not in-

’

terfere with the attainment or maintenance of such

primary or secondary 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 au-

thority to carry out such implementation plan, (ii)

requirements for installation of equipment by owners

or operators of 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 es-

tablished pursuant to this chapter, which reports shall

be available at reasonable times for public inspection;

and (v) for authority comparable to that in section

1857h—1 of this title, and adequate contingency plans

to implement such authority;

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

cable, for periodic inspection and testing of motor ve-

hicles 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 substan-

tially inadequate to achieve the national ambient air

quality primary or secondary standard which it im-

plements.

(3) The Administrator shall approve any_revision of

an implementation plan applicable to an air quality con-

trol region if he determines that it meets the requirements

of paragraph (2) and has been adopted by the State after

reasonable notice and public hearings.

(4) The procedure referred to in paragraph (2) (D) for

review, prior to construction or modification, of the loca-

tion of new sources shall (A) provide for adequate author-

ity to prevent the construction or modification of any new

source to which a standard of performance under section

1857c—6 of this title will apply at any location which the

State determines will prevent the attainment or mainten-

ance within any air quality control region (or portion

thereof) within such State of a national ambient air qual-

ity primary or secondary standard, and (B) require that

prior to commencing construction or modification of any

such source, the owner or operator thereof shall submit to

such State such information as may be necessary to permit

the State to make a determination under clause (A).

Extension of period for submission of plan implementing

national secondary ambient air quality standard

(b) The Administrator may, wherever he determines

necessary, extend the period for submission of any plan

or portion thereof which implements a national secondary

ambient air quality standard for a period not to exceed

18 months from the date otherwise required for submission

of such plan.

Preconditions for preparation and publication by Admin

istrator of proposed regulations settng forth an im-

plementation plan; hearings for proposed regula-

tions; promulgation of regulations by

Admimstrator

(c’ The Administrator shall, after consideration of

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(1) the State fails to submit an implementation plan

for any national ambient air quality primary or sec-

ondary standard within the time prescribed,

(2) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to

be in accordance with the requirements of this section,

(3) the State fails, within 60 days after notification

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as re-

quired pursuant to a provision of its plan referred to

in subsection (a) (2) (H) of this section.

If such State held no public hearing associated with re-

spect to such plan (cr revision thereof), the Administra-

tor shall provide opportunity for such hearing within such

State on any proposed regulation. The Administrator

shall, within six months after the date required for sub-

mission of such plan (or revision thereof), promulgate any

such regulations unless, prior to such promulgation, such

State has adopted and submitted a plan (or revision) which

the Administrator determines to be in accordance with

the requirements of this section.

Applicable implementation plan

(d) For purposes of this chapter, an applicable imple-

mentation plan is the implementation plan, or most recent

revision thereof, which has been approved under subsec-

tion (a) of this section or promulgated under subsection

mary or secondary ambient air quality standard in a State.

Extension of time period for attainment of national

primary ambient air quality standard in imple-

mentation plan; procedure; approval of ex-

tenston by Administrator

(e) (1) Upon application of a Governor of a State

at the time of submission of any plan implementing a na-

tional ambient air quality primary standard, the Admin-

istrator may (subject to paragraph (2)) extend the three-

year period referred to in subsection (a) (2) (A) (i) of

this section for not more than two years for an air quality

control region if after review of such plan the Adminis-

trator determines that—

(A) one or more emission sources (or classes of mov-

ing sources) are unable to comply with the require-

ments of such plan which implement such primary

standard because the necessary technology or other

alternatives are not available or will not be available

soon enough to permit compliance within such three-

year period, and

(B) the State has considered and applied as a part

of its plan reasonably available alternative means of

attaining such primary standard and has justéfiably

concluded that attainment of such primary standard

within the three years cannot be achieved.

(2) The Administrator may grant an extension un-

der paragraph (1) only if he determines that the State

plan provides for—

(A) application of the requirements of the plan

which implement such primary standard to all emis-

sies sources in such region other than the sources

(or classes) described in paragraph (1) (A) within

the three-year period, and

(B) such interim measures of control of the sources

(or classes) described in paragraph (1) (A) as the

Administrator determines to be reasonable under the

circumstances.

Postponement of compliance by any stationary source or

class of moving sources with any requirement of an

applicable implementation plan; application by Gov-

ernor of affected State; determination by Administra-

tor; notice and opportunity for hearing; judicial re-

view; precedence of cases; subpoenas

(f) (1) Prior to the date on which any stationary source

or class of moving sources is required to comply with

any requirement of an applicable implementation plan the

Governor of the State to which such plan applies may

apply to the Administrator to postpone the applicability

of such requirement to such source (or class) for not more

than one year. If the Administrator determines that—

(A) good faith efforts have been made to comply

with such requirement before such date,

(B) such source (or class) is unable to comply with

such requirement because the necessary technology

or other alternative methods of control are not avail-

able or have not been available for a sufficient period

of time,

and interim control measures have reduced or will re-

duce the impact of such source on public health, and

(D) the continued operation of such source is es-

sential to national security or to the public health or

welfare, then the Administrator shall grant a post-

ponement of such requirement.

(2) (A) Any determination under paragraph (1) shall

(i) be made on the record after notice to interested per-

sons and opportunity for hearing, (ii) be based upon a

fair evaluation of the entire record at such hearing, and

(iii) inelude a statement setting forth in detail the find-

ings and conclusions upon which the determination is

based.

(B) Any determination made pursuant to this paragraph

shall be subject to judicial review by the United States

court of appeals for the circuit which includes such State

upon the filing in such court within 30 days from the

date of such decision of a petition by any inerested per-

son praying that the decision be modified or set aside in

whole or in part. A copy of the petition shall forthwith

be sent by registered or certified mail to the Administra-

tor and thereupon the Administrator shall certify and file

in such court the record upon which the final decision

complained of was issued, as provided in section 2112 of

Title 28. Upon the filing of such petition the court shall

have jurisdiction to affirm or set aside the determination

complained of in whole or in part. The findings of the

Administrator with respect to questions of fact (including

each determination made under subparagraphs (A), (B),

(C), and (D) of paragraph (1)) shall be sustained if

based upon a fair evaluation of the entire record at such

hearing.

shall take precedence over all the other causes of action

on the docket and shall be assigned for hearing and deci-

sion at the earliest practicable date and expedited in ev-

ery way.

(D) Section 1857h—5(a) of this title (relating to sub-

poenas) shall be applicable to any proceeding under this

subsection.

July 14, 1955, ¢. 360, Title I, § 110, as added Dee. 31, 1970,

Pub.L. 91-604, §4(a), 84 Stat. 1680.

§ 1857d—1 Retention of State authority

Except as otherwise provided in sections 1857f—6a,

1857£—6e(c) (4), and 1857f—11 of this title (preempting

certain State regulation of moving sources) 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 pollut-

ants or (2) any requirement respecting control or abate-

ment of air pollution; except that if an emission standard

or limitation is in effect under an applicable implementa-

tion plan or under section 1857e-—6 or section 1857e—7

of this title, such State or political subdivision may not

adopt or enforce any emission standard or limitation which

is less stringent than the standard or limitation under

such plan or section.

July 14, 1955, e. 360, Title I, § 116, formerly $109 as ad-

ded Nov. 21, 1967, Pub.L. 90-148, § 2, 81 Stat. 497, re-

numbered and amended Dee. 31, 1970, Pub.L. 91-604, § 4(a)

(c), 84 Stat. 1678, 1689.

SUBCHAPTER Ili—GENERAL PROVISIONS

§ 1857g. Administration — Regulations; delegation of

powers of Administrator

(a) The Administrator is authorized to prescribe such

regulations as are necessary to carry out his functions un-

der this chapter. The Administrator may delegate to any

officer or employee of the Environmental Protection

Agency such of his powers and duties under this chapter,

except the making of regulations, as he may deem neces-

sary or expedient.

Detail of Environmental Protection Agency personnel

to air pollution control agencies

(b) Upon the request of an air pollution control agency,

personnel of the Environmental Protection Agency may

be detailed to such agency for the purpose of carrying out

the provisions of this chapter.

Payments under grants; installments; advances

or reimbursement

be made in installments, and in advance or by way of re-

imbursement, as may be determined by the Administra-

tor.

As amended Dee. 31, 1970, Pub.L. 91-604, §§ 3(b) (2), 15(e)

(2), 84 Stat. 1677, 1713.

§ 1857h.—Definitions

When used in this chapter—

(a) The term “Administrator” means the Administrat-

tor of the Environmental Protection Agency.

[See main volume for text of (b) to (f)]

(g) The term “air pollutant” means an air pollution

agent or combination of such agents.

(h) All language referring to effects on welfare includes,

but is not limited to, effects on soils, water, crops, vegeta-

tion, manmade materials, animals, wildlife, weather, visi-

bility, and climate, damage to and deterioration of prop-

erty, and hazards to transportation, as well as effects on

economic values and on personal comfort and well-being.

As amended Dee. 31, 1970, Pub.L. 91-604, §15(a) (1), (ce)

(1), 84 Stat. 1710, 1713.

RULING OF ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY

| (August 9, 1974)

Rules and Regulattons 29357

Title 40—Protection of Environment

CHAPTER I—ENVIRONMENTAL

PROTECTION AGENCY

Subchapter C—Air Programs

Part 52—Approval and Promulgation of Implementation

Plans

Kentucky; Approval of Plan

On February 8, 1972, the Governor of Kentucky initially

submitted to the Administrator of the Environmental Pro-

tection Agency the State’s “Implementation Plan for the

Attainment and Maintenance of the National and States

Ambient Air Quality Standards.” This (23958) plan had

been adopted by the State following a public hearing held

on January 11, 1972, in Frankfort, Kentucky. It was sub-

mitted pursuant to section 110 of the Clean Air Act, as

amended, and the implementing regulations of 40 CFR

Part 51, which requires States to adopt implementation

plans to achieve and maintain the national ambient air

quality standards set forth in 40 CFR Part 50.

On May 31, 1972 (37 FR 10842), the Administrator ap-

proved the Kentucky plan with one exception, which arose

from a deficiency in the State’s legal authority to allow

public release of emission data. This deficiency was sub-

sequently resolved on July 27, 1972 (37 FR 15080), when

the Administrator delegated to the Comm wealth of

Kentucky the required legal authority.

On June 28, 1973, a decision of the U.S. Court of Ap-

peals for the Sixth Circuit in the Case of “Buckeye Power

Co., et al. v. Environmental Protection Agency,” 481 F.

2d 162, and two related cases, vacated the Administrator’s

approval of the Kentucky plan and remanded the case to

the Agency for compliance with section 553 of the Admin-

istrative Procedures Act, viz., to take comments, data, or

other evidence from interested parties, and to express the

basis for administrative actions.

Consequently, on December 5, 1973, Governor Wendell

Ford resubmitted to the Administrator the Kentucky im-

plementation plan. Submitted as part of the plan was a

new regulation, AP-11, providing for the pre-construction

review of new or modified sources of air pollution. This

was intended to satisfy additional implementation plan

requirements involving indirect sources which had been

promulgated on June 18, 1973 (38 FR 15834). AP-11 had

received public hearing before being adopted and sub-

mitted to the Agency for approval.

On March 19, 1974 (39 FR 10277), the Administrator

published as proposed rulemaking the prov-sions of the

resubmitted Kentucky plan, including AP-11, its indirect

source regulation. Also, it was noted that the Governor’s

formal request for a two-year extension of the deadline

for meeting primary SO, standards in the Louisville In-

terstate AQCR, granted in the Administrator’s original

approval of May 31, 1972 (37 FR 10842), was considered

to be still in effect. Written comments were solicited from

the public with respect to the newly submitted Kentucky

plan, and one response was received.

This recommended that the plan’s alternate control stra-

tegy provision be retained and specifically approved, and

that the regulation (AP-4) governing SO, emissions from

power generating facilities be revised in such a way that

its emission limits would apply only to those facilities

which cause violation of ambient standards, as shown by

the average data gathered from two or more monitoring

stations.

With respect to the alternate control strategy provision

of the plan, the Administrator’s position is that it should

be specifically disapproved, and his reason is given below

under “Approval Comments.”

With regard to the provisions of AP-4, the Administra-

tor points out that section 116 of the Clean Air Act re-

serves to States the right to adopt and enforce measures

which are more strict than those needed to attain and

maintain the national standards. Therefore, emission lim-

its cannot be disapproved or unilaterally relaxed by the

Administrator on the ground that they are too stringent.

As noted in his “Approval Comments,” however, the Ad-

ministrator encourages the Commonwealth of Kentucky

to re-examine its SO, control strategy to determine if it

ean be modified without jeopardizing the attainment and

maintenance of national standards.

Approval Comments

The Kentucky implementation plans meet the require-

ments of section 110 of the Clean Air Act, as amended, and

the implementing regulations of 40 CFR Part 51, and is

hereby approved with one exception.

Section 1(b) of Kentucky air pollution control regula-

tion AP-1 states that:

Where it is demonstrated to the satisfaction of the [Ken-

tucky Air Pollution Control] Commission that an air con-

taminant source can apply an alternate control strategy

which will provide for achievement and maintenance of ap-

plicable ambient air quality standards, the Commission may,

under such terms and conditions as it deems appropriate,

authorize such a control strategy after a public hearing.

In his original approval of May 31, 1972 (37 FR 10842),

the Administrator took note of the fact that a number

of State plans contained optional control regulations of

this sort. At that time, the Administrator took no action

on these regulations, but advised the States that any ap-

plication of them to specific sources would constitute a

plan revision. It is now his opinion that this provision of

the Kentucky plan—if not specifically disapproved—could

be construed to permit intermittent control measures un-

der circumstances where constant emission controls were

available. To eliminate the possibility of such an interpre-

tation, section 1(b) of AP-1 is disapproved as failing to

meet the requirements of 40 CFR 51.12.

With respect to the plan’s control strategy for attain-

ing and maintaining the national standards for particulate

matter, the Administrator notes that one of the imple-

menting regulations—AP-3, Control of Particulate Emis-

sions—contains a provision, at section 2(7)(¢)(ii), which

has the effect of exempting from the emission limits of

this regulation certain steam electric power boilers. This

exemption applies to those boilers which had been subject

to the provisions of old Regulation No. 7, in effect from

November 27, 1969, to April 9, 1972, and had made a good

faith effort to comply with it. The exemption would cease

if the affected sources should be modified. Regulation No. 7

calls for a graduated degree of control which varies accord-

ing to size—very small boilers are assigned an emission

limit of 0.8# part./10° BTU, while for larger units the

limit is 0.244% part./10° BTU. These limits are less strin-

gent than those of AP-3.

At the Agency’s request, Kentucky submitted on May

21, 1974, a list of sources subject to the limits of Regula-

tion No. 7. These are as follows:

1. Big Rivers RECC

a. Coleman Station, Units 1, 2, and 3

b. Reid Station 1

Reid Station 2, Units 1 and 2

Eastern Kentucky Power Corporation

Cooper Station

Dale Station, Units 3 and 4

Maysville facility

Henderson Municipal Utilities

Station 1, Units 5 and 6

Kentucky Utilities

Brown Station, Units 1 and 2

Ghent facility, Unit 1

Green River Station, Unit 2, Boiler 3

. Louisa facility, Unit 1

Owensboro Municipal Utilities

. Elmer Smith Station, Units 1 and 2

. Owensboro facility, Units 1, 2, 3 and 4

SPAS TP PP YS TP NS

Of these 23 units, only 6 fail to meet the emission limits

set forth in AP-3 as well as those of Regulation No. 7. The

Administrator has determined that the exemptions just

described will have no adverse effect on the attainment and

maintenance of national ambient standards for particulate

matter in Kentucky. In his judgment, the plan meets the

requirements of 40 CFR 51.13 with respect to this pollu-

tant.

The Administrator has determined that the Kentucky

plan also meets the requirements of 40 CFR 51.13 with

respect to sulfur oxides. The two-year extension originally

granted for achieving primary SO, standards in the Louis-

ville Interstate AQCR is hereby reaffirmed. The Admin-

istrator has reviewed the potential for attainment of pri-

mary SO, standards in this AQCR and has determined

that it will not be feasible for electrical generating units

and other fuel burning sources to achieve needed reductions

in SO, [sic] emissions before mid-1977. Low sulfur fuel is

not available in sufficient quantity to permit significant fuel

switching in this heavily coal-dependent area. To attain

primary standards, flue gas desulfurization is needed for

at least four additional units of Louisville Gas and Elec-

tric’s electrical generating system. The installation of this

equipment cannot be completed prior to 1977 because of

the inherent limitations of the design for construction pro-

cess, although the Company has made significant progre:

to date. A particular difficulty has been the reluctance of

the Kentucky Public Service Commission to approve ex-

penditures for this purpose, which is necessary for con-

tinuing progress. Unavoidable equipment delivery delays

encountered by other industrial sources in obtaining needed

control equipment, which were projected in 1972, are be-

ing realized and will preclude their being able to totally

achieve needed reductions before 1977. As an interim con-

trol effort, these sources are cooperating with State and

local agencies to utilize all the low sulfur fuel they can ob-

tain.

(29359) Since the supply of low sulfur fuels is currently

limited, the Administrator, in accordance with the Agency’s

clean fuels policy, invites the State of Kentucky to re-

examine the effects of its sulfur oxide regulations to deter-

mine whether less stringent limits might not, in certain

portions of the State, adequately attain primary ambient

air quality standards.

In the Administrator’s judgment, the requirements of

40 CFR 51.14 are met by the Kentucky plan’s control stra-

tegies for hydrocarbons, photochemical oxidants, and ni-

trogen oxides. On May 8, 1974 (39 FR 16344), the Louis-

ville and Cincinnati AQCR’s were reclassified as Priority

III for nitrogen oxides. In view of this action, the Admin-

istrator invites the Commonwealth of Kentucky to re-ex-

amine its nitrogen oxide regulations to determine whether

the national standards could be met without controlling

emissions of this pollutant from stationary sources.

As announced previously, a number of individually ne-

gotiated compliance schedules were submitted by Kentucky

along with its plan. These will appear as proposed rule-

making in a subsequent publication.

The Administrator has determined that the indirect

source regulation of t'e Kentucky plan satisfies the re-

quirements of 40 CFR 51.11 (a) (4), 51.12(e), and 51.18,

and it is therefore approved. The Administrator’s promul-

gation of a Federal regulation to satisfy these require-

ments is simultaneously revoked with respect to Kentucky

(39 FR 7270 at 7281).

A detailed description of the plan is now given in such

a way that the effect of the present actions on 40 CFR

Part 52 can be clearly seen. The originally published plan

of May 31, 1972, contained a classification of regions

(§ 52.921) and attainment dates for the national standards

($ 52.926). These sections are retained as revised on May

8, 1974 (39 FR 16344), when the Louisville and Cincinnati

regions were reclassified from I to LII for NO*, and the

attainment dates were changed to show that secondary

standards for this pollutant were already being met in

these two AQCR’s. Section 52.920, “Identification of plan,”

is retained as originally published together with subse-

quent amendments; these include notice of the plan’s re-

submittal on December 5, 1973, and the State’s submittal

of information regarding Regulation No. 7 on May 21,

1974. Section 52.921, “Extensions,” is retained as origi-

nally published, for the Administrator has confirmed the

granting of a two-year extension to meet primary SO,

standards in the Louisville region. Sections 52.923, “Ap-

proval status,” and 4$52.924, “Legal authority,” are re-

tained as originally published. Section 52.925 is reserved.

Section 52.927 is retained as originally published pending

the Administrator’s determination that all of the com-

pliance schedule requirements of 40 CFR Part 51 have

been met; action on any of the above-mentioned indivi-

dually negotiated compliance schedules will be set forth

in this section. Section 52.928, “Review of new sources and

modifications,” is revoked here. Section 52.929 is reserved.

Section 52.930, “Control strategy: General,” is added for

the purpose of expressing the Administrator’s disapproval

of the plan’s provision for optional control strategies ap-

plicable to individual sources.

The rulemaking actions set forth in this notice are effec-

tive immediately.

The Administrator finds that sufficient cause exists for

making these actions immediately effective in that the Com-

monwealth of Kentucky has lacked a Federally enforcea-

ble implementation plan since June, 1973, through a deci-

sion of the U. S. Court of Appeals for the Sixth Circuit.

Moreover, ample opportunity has now been given for pub-

lie comment on the provisions of the plan, and further

postponement of the effective date would serve no useful

purpose.

(See. 110 of the Clean Air Act, as amended 1970 (42

U.S.C. 1857e—5).)

—Dated: August 9, 1974

John Quarles,

Acting Administrator

Part 52 of Chapter I, Title 40, Code of Federal Regula-

tions, is amended as follows:

Subpart S—Kentucky

1. In § 52.920, paragraphs (b) and (c) are revised to

read as follows:

§ 52.590 Identification of plan.

(b) The plan was officially submitted on February 8,

1972, and was resubmitted on December 5, 1973.

(1) March 6 and 17, May 3, and June 7, 1972, by the

Kentucky Air Pollution Control Office, and

59 “

(2) December 5, 1973, and May 21, 1974, by the Ken-

tucky Department for Natural Resources and Environmen-

tal Protection.

§ 52.928. [Revoked]

2. Section 52.928 is revoked.

3. Section 52.930 is added as follows:

§ 52.930 Control strategy: General.

(a) The requirements of § 51.12 of this chapter are not

met since section 1 (b) of Kentucky regulation AP-1 may

be interpreted as permitting the use of intermittent con-

trols in cases where constant controls are available. There-

fore, section 1(b) of regulation AP-1 is disapproved.

[FR Doc. 74-18755 Filed 8-14-74; 8:45 am]

PERTINENT PROVISIONS OF KENTUCKY

AIR POLLUTION REGULATIONS

I. AP 1, General Provisions:

1. GENERAL APPLICATION OF REGULATIONS

AND STANDARDS

(1) Regulations of the Commission shall be construed

and applied in light of the considerations set forth here-

inafter which shall guide the Commission in the issuance,

modification and revocation of permits.

(a) All other provisions to the contrary notwith-

standing, all air contaminant sources shall as a minimum

apply such control procedures as are reasonable, available

and practical.

(b) Where it is demonstrated to the satisfaction of

the Commission that an air contaminant source can apply

an alternate control strategy which will provide for

achievement and maintenance of applicable ambient air

quality standards, the Commission may, under such terms

and conditions as it deems appropriate, authorize such a

control strategy after a public hearing.

permit any practice which is in violation of any statute,

ordinance, or regulation.

(d) These regulations shall be construed as comple-

mentary to each other, and to such other regulations as

have been adopted or shall be adopted by the Commission.

If any provisions of these regulations or the application

thereof to any person or circumstances is held to be

invalid, such invalidity shall not effect other provisions or

application of any other part of these regulations, and to

this end the provisions of these regulations and the var-

ious applications thereof are declared to be severehle.

Il. AP 4, Control of Sulfur Compound Emissions:

“1. EMISSIONS FROM INDIRECT HEAT

EXCHANGERS

(1) New Installations of Indirect Heat Exchangers

(a) No person shall cause, suffer, allow or permit the

emission of sulfur dioxide into the open air from any new

installations of indirect heat exchangers having a rated

capacity of 250 million BTU per hour or more heat input,

in excess of:

(i) 0.8 lb. per million BTU heat input, maximum 2-hour

average, when liquid fuel is burned;

(ii) 1.2 lb. per million BTU heat input, maximum 2-

hour average, when solid fuel is burned.

(b) No person shall cause, suffer, allow or permit the

emission of sulfur dioxide into the open air from any new

installation of indirect heat exchangers of less than 250

million BTU/hour in excess of those amounts listed in

Table 4-1 and shown in Figures 4.1 and 4.2 all of which

are incorporated as part of this regulation.

TABLE 41

ALLOWABLE SULFUR DIOXIDE EMISSION

BASED ON HEAT INPUT CAPACITY

MM BTU/

HOUR HEAT INPUT NEW INSTALLATION

liquid Fuel = Solid Fuel

10 or less 2.50 4.0

50 1.40 2.4

100 1.10 1.7

150 0.95 1.4

200 0.86 1.3

250 or more 0.80 1.2

(2) Existing Installations of Indirect Heat Exchangers

—Regions classified as Priority I with respect to sulfur

dioxide.

(a) No person shall cause, suffer, allow or permit the

emission of sulfur dioxide into the open air from any

existing installations of indirect heat exchangers having a

rated capacity of 250 million BTU per hour or more heat

input, in excess of:

(i) 0.8 lb. per million BTU heat input, maximum 2-hour

average, when liquid fuel is burned:

(ii) 1.2 lb. per million BTU heat input, maximum 2-hour

average, when liquid fuel is burned;

(b) No person shall cause, suffer, allow or permit the

emission of sulfur dioxide into the open air from any

existing installation of indirect heat exchangers of less

than 250 million BTU per hour input, in excess of those

amounts listed in Table 4.2, and shown in Figures 4.1 and

4.2, all of which are incorporated as part of this regula-

tion.

(3) Existing Installations of Indirect Heat Exchangers

—Regions classified as Priority Il with respect to sulfur

dioxide.

(a) No person shall cause, suffer, allow or permit the

emission of sulfur dioxide into the open air from any ex-

isting installations of indirect heat exchangers having a

rated capacity of 500 million BTU per hour or more heat

input, in excess of:

(i) 1.5 lb. per million BTU heat input maximum 2-hour

average, when liquid fuels are burned;

(ii) 2.0 lb. per million BTU heat input, maximum

2-hour average, when solid fuel is burned.

(b) No person shall cause, suffer, allow or permit the

emission of sulfur dioxide into the open air from any

existing installation of indirect heat exchangers or less

than 500 million BTU per hour heat input, in excess of

those amounts listed in Table 4.2, and shown in Figures

4.1 and 4.2, all of which are incorporated as part of this

regulation.

(4) Existing Installations of Indirect Heat Exchangers

—Regions classified as Priority III with respect to sulfur

dioxide.

(a) No person shall cause, suffer, allow or permit the

emission of sulfur dioxide into the open air from any

existing installations of indirect heat exchangers maving a

rated capacity of 1000 million BTU per hour or more

heat input, in excess of:

(i) 2.0 lb. per million BTU heat input, maximum 2-

hour average, when liquid fuel is burned;

(ii) 3.5 lb. per million BTU heat input, maximum 2-

hour average, when solid fuel is burned.

(b) No person shall cause, suffer, allow or permit the

emission of sulfur dioxide into the open air from any

existing installation of indirect heat exchangers of less

than 1000 million BTU per hour heat input, in excess of

those amounts listed in Table 4.2, and shown in Figures

4.1 and 4.2, all of which are incorporated as part of this

regulation.

(5) Maximum Fimission from Indirect Heat Exchangers

(1) No person shall construct any indirect heat ex-

changer or modify any existing indirect heat exchanger so

that its total emissions exceeds 500 tons of sulfur dioxide

per day.

(2) No person shall construct any new indirect heat ex-

changer or modify any existing indirect heat exchanger

where two or more indirect heat exchangers, including

that indirect heat exchanger for which construction or

modification is proposed, and which individually emit 100

tons per year or more of sulfur dioxide, are contained

within a circle 10 miles in diameter, and the total emis-

sions of all such indirect heat exchangers is 750 tons per

day of sulfur dioxide or more.

(6) For any given indirect heat exchanger air contami-

nant source the combined total capacity of all fuel burning

units in that air contaminant source shall determine the

amount of allowable sulfur dioxide emissions.

6. TIME SCHEDULE FOR COMPLIANCE

(1) For the purpose of this section, the following time

tables shall apply, however, all air contaminants sources

covered under this section are required to submit a con-

trol plan and schedule for compliance as outlined in AP-1,

See. 11(2):

(a) Those indirect heat exchangers described in Section

1(2) submit a control plan and schedule no later than

January 1, 1973 with a compliance date of no later than

July 1. 1977.

(b) Those indirect heat exchangers described in Section

1(3) submit a control plan and schedule no later than

January 1, 1973 with a compliance date of no later than

July 1, 1978.

1(4) submit a control plan and schedule no later than Jaft-

uary 1, 1973 with a compliance date of no later than July

1, 1979.

(d) All other air contaminant sources governed by this

section shall comply as specified in AP-1, Section 11.”

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FIGURE 4.1

CERTIFICATE OF SERVICE

The undersigned hereby certifies that service of the

foregoing Petition For a Writ of Certiorari To The

United States Court of Appeals For The Sixth Circuit

was made by mailing a copy, postage prepaid, to the be-

low-named individuals on the-22 day of November, 1975.

. Charles W. Shipley, Esq.

Pollution Control Section

Land and “atural Resources of Division

United States Department of Justice

Washington, D.C. 20530

Richard J. Denny, Jr., Esq.

Office of General Counsel

Environmental Protection Agency

401 M Street, SW

Washington, D.C. 20024

Ed W. Hancock, Esq.

. Attorney General

Commonwealth of Kentucky

Capitol Building

Frankfort, Kentucky 40601

Richard E. Ayers, Esq.

1710 N Street, NW

Washington, D.C. 20036

Armistead W. Gilliam, Jr., Esq.

Smith and Schnacke

Suite 390

Talbott Tower

Dayton, Ohio 45402

J. William Doolittle, Esq.

Prather, Levenberger, Seeger,

Doolittle, Farmer, and Ewing

1101 16th Street, NW

Washington, D.C. 20036

Thomas O. Harris

Secretary for Natural Resources

& Environmental Protection

Capital Plaza

Frankfort, Kentucky 40601

Herbert S. Sanger, Jr., Esq.

General Counsel

Tennessee Valley Anrthority

Knoxville, Tennessee 37902

Frank H. Morison, Esq.

Holland & Hart

500 Equitable Building

730 Seventeenth Street

Denver, Colorado 80202.

Milbeee bit

WILSON W. SYN ca /

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.