# Petition — Big Rivers Electric Corp. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1377%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 934 ## Text IN THE 4 MHCHATL RODAK, J8 ee a ee Supreme Court of the United States OCTOBER TERM, 1975 A. 4 vv BIG RIVERS ELECTRIC CORPORATION KENTUCKY POWER COMPANY and KENTUCKY UTILITIES COMPANY, Petitioners, Vv. ° ENVIRONMENTAL PROTECTION AGENCY, RUSSELL E, TRAIN, ADMINISTRATOR, Respondent. A. as PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT i. 7 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 il 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, v. ENVIRONMENTAL PROTECTION AGENCY, RUSSELL E. TRAIN, ADMINISTRATOR, Respondent. La 4 PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT » .s 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 3 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). 4 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.) 4) 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- 6 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 8 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- 10 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- 11 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 12 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 13 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: 14 “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. 15 “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 16 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. 17 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. 18 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. 19 s 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 20 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. 21 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, v. Environmental Protection Agency, Russell E. Train, Administrator, Respondents. ; 24 Tennessee Valley Authority, } Petitioner, v. 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- 25 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 26 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. 27 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 28 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 29 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 30 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 31 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 32 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- 33 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 : 34 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- 35 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). 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Jeep tis Jot ie ae Bd SAR AE a: fea Wel ie dd Be ee OL ey en ar es T Til LL, Fe Gh MEI mr tH Pee air Tri) -t fT PELE Rae D as ws be Hi cla Bra op Paps ein! | 18 WG ie ee fe “ee DELLE: aS i 33 ' Ns aE on : oe Coa ee it i esePe te dig ty +} 5 . -}- ee eS Ah sabtepsteagg eta Poni ork Ene I | a + ot i| ti. ° I soebebiade i | . i Lend aoe eetlhe fee : iit ie itl ! het. $ * thel itt a 100.0 10,900 10 HEAT InFuT (10° stu/#n) ALLOWABLE SULFUR DIOXIDE EMISSIONS BASED ON HEAT INPUT CAPACITY 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 68 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 / --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1377%3A1. Public record. Not legal advice.