Opposition — TENNESSEE V. ENVIRONMENTAL PROTECTION AGENCY (No. 75-787)

|

Ne. ose | : * e |

Iu the Supreme Court of the | CLERK

OCTOBER TERM, 1975

TENNESSEE VALLEY AUTHORITY, PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

oe

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

ROBERT H. Bork,

Solicitor General,

PETER R. TAFT,

Assistant Attorney General,

RAYMOND N. ZAGONE,

EDWARD J. SHAWAKER,

CHARLES W. SHIPLEY,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinion below i ae 1

a 1

Questions presented = 2

Statute involved = 2

Statement - 2

SS 6

Conclusion oe ee 17

CITATIONS

Cases:

DeFunis v. Odegaard, 416 U.S. 312...—s—‘7,,8

Kennecott Copper Corporation v. Train,

C.A. 9, No. 75-1335, decided Novem-

ber 28, 1975, petition for a writ of

certiorari pending, No. 75-1029 8, 11, 14

National Labor Relations Board v. Bell

Aerospace Compeny, 416 U.S. 267. s-: 112-13

Natural Resources Defense Council, Inc.

v. Environmental Protection Agency,

489 F.2d 390, reversed in part on

other grounds sub nom. Train v. Natu-

ral Resources Defense Council, 421

Sa |)

Roe v. Wade, 410 U.S. 113 sss 8

Securities and Exchange Commission v.

Medical Committee for Human Rights,

404 U.S. 403 _. ae 7

Sierra Club v. Ruckelshaus, 344 F. Supp.

253, affirmed Fri v. Sierra Club, 412

Cases—Continued Page

Southern Pacific Terminal Co. v. Inter-

state Commerce Commission, 219 U.S.

State of Texas v. Environmental Protec-

tion Agency, 499 F.2d 289 ss 8

Train v. National Resources Defense

Council, 421 U.S. 60 5, 9, 10

United States vy. Munsingwear, 340 U.S.

United States y. Phosphate Export Assn.,

OO WD EE rinccrceteet e 7

United States v. W. T. Grant Co., 345

| ae nn as el Rigi 7

Statutes:

Clean Air Act, 77 Stat. 392, as added

and amended by the Clean Air Amend-

ments of 1970, 84 Stat. 1676, 42

U.S.C. 1857, et seq:

Section 109(b) (1), 42 U.S.C. 1857e-

ATS 10

Section 109(b) (2), 42 U.S.C. 1857c- e

ETRE SS 11

Section 110, 42 U.S.C. 1857¢e-5 2

Section 110(a) (1), 42 U.S.C. 1857c-

OD eiicescrcrenicisictpncicste tele tialhe 11

Section 110(a) (2), 42 U.S.C. 1857c-

ID evnctnisceiiniensinptace 5 ae 3, 8,13

Section 110(a)(2)(B), 42 U.S.C.

1857c-5(a)(2)(B) .......B8, 5, 9, 11, 14

Section 119, 42 U.S.C. (Supp. IV)

a Li

16

III

Statutes—Continued

Section 119(c)(2)(B), 42 USC.

(Supp. IV) 1857c-10(¢c) (2) (B)___

Section 119(c)(2)(C), 42 U.S.C.

(Supp. IV) 1857c-10(c) (2) (C)__

Energy Supply and Environmental Co-

ordination Act of 1974, Pub. L. 93-

319, 88 Stat. 246.

Miscellaneous:

119 Cong. Ree. (1973):

en

pages 41775-41777 — ss

120 Cong. Rec. S 10409 (daily ed. June

en ieee ae

(Title I) before the Subcommittee on

Air and Water Pollution of the Senate

Committee on Public Works, 92d Cong.,

2d Sess. (1972)... =

S. Conf. Rep. No. 93-663, 93d Cong., Ist

I i

Page

16

16

15

13

14

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-787

TENNESSEE VALLEY AUTHORITY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

1-12) is reported at 523 F. 2d 16.

JURISDICTION

The judgment of the court of appeals was en-

tered on September 4, 1975. The petition for a writ

(1)

2

of certiorari was filed on December 2, 1975. This

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

(1).

QUESTIONS PRESENTED

1. Whether this case is moot.

2. Whether the Administrator of the Environ-

mental Protection Agency correctly interpreted Sec-

tion 110(a)(2)(B) of the Clean Air Act, as added,

42 U.S.C. 1857c-5(a) (2) (B), to require that state

implementation plans, designed to meet national am-

bient air quality standards, must use continuous

emission reduction measures to the extent available

rather than intermittent emission control measures.

STATUTE INVOLVED

Section 110 of the Clean Air Act, as added by the

Clean Air Amendments of 1970, 84 Stat. 1680, 42

U.S.C. 1857c-5, is set out in pertinent part at Pet.

3-4.

STATEMENT

1. The Clean Air Act, 77 Stat. 392, as amended,

42 U.S.C. 1857, et seq., requires the Administrator

of the Environmental Protection Agency (the Ad-

ministrator) to promulgate national primary and

secondary ambient air quality standards that will

protect the public from known or anticipated adverse

effects of various air pollutants. Each State has the

primary responsibility for assuring the quality of

the air within its territory and must devise a state

implementation plan (SIP) designed to, at a mini-

es

3

mum, implement, maintain and enforce the national

primary and secondary ambient air quality stand-

ards.

Under Section 110(a)(2) of the Act, 42 U.S.C.

1857c-5(a) (2), the Administrator is required to ap-

prove the state implementation plan if he determines, .

inter alia, that “it includes emission limitations,

schedules, and timetables for compliance with such

limitations * * *.” (Section 110(a)(2)(B), 42

U.S.C. 1857c-5(a) (2) (B)).

2. In December 1973, Kentucky submitted its

state implementation plan, which contained the fol-

lowing provision Section 1(1)(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 condi-

tions as it deems appropriate, authorize such a

control strategy after a public hearing.

On August 9, 1974, the Administrator approved

the Kentucky implementation plan, except with re-

spect to Section 1(1)(b). He based his refusal to ap-

prove this part of the plan on the ground that Sec-

tion 1(1)(b) “could be construed to permit intermit-

tent control measures under circumstances where con-

stant emission controls were available.” 39 Fed.

Reg. 29358.’

* Switching to cleaner fuels or curtailing plant operations

when air quality declines are examples of intermittent control

4

Thereafter, petitioner and certain private power

companies filed timely petitions for review of the

Administrator’s action in the United States Court

of Appeals for the Sixth Circuit. The cases were

consolidated. The Commonwealth of Kentucky,

among others, intervened as a respondent.

3. On July 2, 1975, Kentucky adopted a new

state implementation plan, retroactively taking ef-

fect on June 6, 1975, which deleted Section 1(1) (b).

In its brief before the court of appeals Kentucky

stated that (Br. for Commonwealth of Kentucky,

p. 12):

The air pollution control agency of this Com-

monwealth has indicated by its proposed regu-

measures; average long term emissions are not necessarily

reduced as a result of such measures. As stated in the fol-

lowing EPA staff paper (119 Cong. Rec. 19190 (1973)):

Depending on the circumstances, [an intermittent con-

trol system] may or may not reduce the average long-

term emissions. If plant operation is curtailed during

poor dispersion conditions, then it may be increased dur-

ing good conditions to make up for the lost production.

Average emissions would be about the same with or

without [an intermittent control system] for this situa-

tion. If clean fuel is used to reduce emissions during

poor dispersion conditions, then average emissions will

be reduced somewhat. If fuel with higher sulfur content

is used during good conditions, then average emissions

could be greater with [an intermittent control system].

It must be concluded, therefore that although [an inter-

mittent control system] employs temporary emission limi-

tation, the long-range control method is that of taking

advantage of good dispersion rather than emission re-

duction.

5

lations that it does not desire to administer the

provisions of the regulation involved [Section

1(1)(b)] and does not wish to have such a regu-

lation included in the “Kentucky Plan.” * * *

[Alternate control strategies are not to play a

part in this Commonwealth’s implementation of

the Clean Air Act irrespective of the decision of

this Court with regard to the Environmental

Protection Agency Administrator’s action.

Accordingly, Kentucky and the federal respondents

moved to dismiss the case as moot.

4. On September 4, 1975, the court of appeal:

denied the motions to dismiss and denied the peti-

tions for review (Pet. App. 1-12). The court held

that the case was not moot because the Administra-

tor’s action in refusing to approve Section 1(1) (b)

“is clearly capable of repetition, but * * * would

evade review if the principle of mootness were strictly

applied” (Pet. App. 6), and because “[t]he public

[has an] interest in determination of the question

in this case” (ibid.).

On the merits, the court held that the Adminis-

trator was not required to approve the original Ken-

tucky plan because it did not include an “emission

limitation” as required by Section 110(a)(2)(B) of

the Clean Air Act, as added, 42 U.S.C. 1857c-5(a)

(2)(B). The court relied upon Train v. Natural

Resources Defense Council, 421 U.S. 60, 78, in which

this Court stated that “ ‘emission limitations’ * * *

are regulations of the composition of substances

6

emitted into the ambient air * * *.” The court con-

cluded that the Administrator acted within the scope

of his authority in refusing to approve that portion

of the Kentucky plan “which might be construed to

permit a source of pollutant emissions to continue

operating * * * without the application of one or

more systems which control the ‘kind and amounts’

of its air contaminant emissions” (Pet. App. 11).

ARGUMENT

1. Although we submit that the decision of the

court of appeals on the merits is correct, we never-

theless disagree with the court’s preliminary hold-

ing that the case is not moot. As we indicated above,

Kentucky’s current air pollution regulations do not

contain Section 1(1)(b) and Kentucky “does not de-

sire to administer the provisions of the regulation in-

volved [Section 1(1)(b)] and does not wish to have

such a regulation included in the ‘Kentucky Plan’ ”.’

Moreover, Kentucky has stated that “it appears that

alternate control strategies are not to play a part

in this Commonwealth’s implementation of the Clean

Air Act irrespective of the decision of this Court

with regard to the Environmental Protection Agency

Administrator’s action” (ibid.). The case is therefore

? Brief for Intervenor Commonwealth of Kentucky before

the United States Court of Appeals for the Sixth Circuit, at

p. 12.

7

moot. See Securities and Exchange Commission v.

Medical Committee for Human Rights, 404 U.S. 403.

Contrary to the court of appeals, the case cannot

be considered a live controversy on the basis that

the order involved is “capable of repetition, yet evad-

iug review,” Southern Pacific Terminal Co. v. Inter-

state Commerce Commission, 219 U.S. 498, 515. The

Administrator’s disapproval of Section 1(1)(b) of

the Kentucky plan is not “capable of repetition” so

far as Kentucky is concerned, since Kentucky has de-

cided that it does not wish to have Section 1(1) (b)

included in its implementation plan and does not wish

to use alternative control strategies irrespective of

whether the Administrator is required to approve

them.’

Moreover, there is no reason to suppose that the

issue will in the future evade review. The Admin-

istrator’s disapprovals of state plans are not “short

term orders,” Southern Pacific Terminal Co. v. In-

terstate Commerce Commission, supra, that expire

before judicial review can occur. If a State wishes

to contest the Administrator’s interpretation, it need

only promulgate an implementation plan permitting

* The “public interest in having the legality of the prac-

tices settled,” United States v. W. T. Grant Co., 345 U.S. 629,

633, is not in itself sufficient to overcome mootness. See

DeFunis Vv. Odegaard, 416 U.S. 312. While the Court has

held that a case may not be moot if the allegedly illegal con-

duct is likely to recur (345 U.S. at 632), in this case no such

likelihood exists since the State will not seek to reinstitute

intermittent controls. See United States v. Phosphate Export

Assn., 393 U.S. 199, 203.

8

intermittent controls without a prior showing that

a continuous limitation on emissions is unavailable.*

This case therefore does not present the exceptional

situation in which the Southern Pacific Terminal

doctrine might permit a departure from “[t]he

usual rule in federal cases * * * that an actual con-

troversy must exist at stages of appellate or certio-

rari review, and not simply at the date the action

is initiated.”” Roe v. Wade, 410 U.S. 113, 125; United

States v. Munsingwear, 340 U.S. 36; DeFunis v. Ode-

gaard, 416 U.S. 312, 319.

2. In any event, the decision of the court of ap-

peals on the merits is correct and does not conflict

with any decision of this Court or any court of

appeals.°

*In fact, the legality of the Administrator’s actions in this

regard has been tested and settled in two other circuits. See

Natural Resources Defense Council, Inc. V. Environmental

Protection Agency, 489 F.2d 390, 406-409 (C.A. 5), reversed

in part on other grounds sub nom. Train v. Natural Resources

Defense Council, 421 U.S. 60; State of Texas v. Environ-

mental Protection Agency, 499 F.2d 289, 311-313 (C.A. 5);

Kennecott Copper Corporation v. Train, C.A. 9, No. 75-1335,

decided November 28, 1975, petition for a writ of certiorari

pending, No. 75-1029.

5In Union Electric Company V. Environmental Protection

Agency (No. 74-1542), argued January 21, 1976, we con-

tended that upon judicial review of the Administrator’s ap-

proval of a state implementation plan under the Clean Air

Act, the court may not consider claims that compliance is

economically or technologically infeasible. As we argued in

that case, there is no requirement in Section 110(a) (2) of

the Act, 42 U.S.C. 1857c-5(a) (2), that in deciding whether

to approve a state-submitted implementation plan the Admin-

9

a. Section 110(a)(2)(B) of the Clean Air Act,

as added, 42 U.S.C. 1857c-5(a) (2) (B), requires that

every state implementation plan include

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 lim-

ited to, land-use and transportation controls.

Every court that has considered this language has

construed it to require the use of all available meas-

ures for continuous limitation of emissions. See cases

cited, note 4, supra.

In Train v. National Resources Defense Council,

supra, 421 U.S. at 78, this Court stated that state

implementation plans to attain and maintain na-

tional ambient air standards

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.

istrator must consider whether compliance with the emission

limitations therein is feasible. Accordingly, so long as the plan

is sufficient to achieve ambient air standards and requires

continuous emission limitations, it must be approved.

If a state plan can be construed to permit intermittent

emission limitations, however, the Administrator must review

it to determine whether the intermittent controls are justified.

Only if the demonstration of adequacy which must accompany

the submission of each implementation plan shows that con-

stant emission controls are unavailable will the Administrator

approve a plan that permits dispersion technology such as

intermittent controls.

10

They are specific rules to which operators of

pollution sources are subject, and which if en-

forced should result in ambient air which meets

the national standards [emphasis supplied ].°

The court below correctly interpreted this to mean

that “emission limitations” do not include regula-

tions that merely regulate the time during which

pollutants may be dispersed into the atmosphere,

which is the effect of intermittent controls.

b. The purpose of the Clean Air Act further con-

firms that Congress intended to require that state

implementation plans require continuous emission

controls if available. National primary ambient air

quality standards are those “requisite to protect the

public health,” 42 U.S.C. 1857c-4\0)(1); nationsi

secondary ambient air quality standards are those

“requisite to protect the public welfare from any

known or anticipated adverse effects associated with

* To be sure, the Court in Train held that “so long as the

national standards are being attained and maintained, there

is no basis in the present Clean Air Act for forcing further

technological developments” (id. at 91). But the Court was

referring to modification of source-by-source emission limi-

tations fixed by the State, which the Administrator must

approve so long as the state plan as a whole provides for a

mix of emission limitations from all sources sufficient to meet

national air quality standards; if these limitations are suffi-

cient, the Administrator may not raise the limitation on a

particular source to force technological improvement as to

that source. The Court did not thereby preclude the Adminis-

trator from withholding his approval of state implementation

plans that did not employ “emission limitations” because they

could be construed to permit intermittent emission controls

when continuous controls were available.

11

the presence of such air pollutant in the ambient

air,” 42 U.S.C. 1857c-4(b)(2). State implementa-

tion plans must provide for attainment and “main-

tenance” of these standards, 42 U.S.C. 1857c-5(a)

(1). Intermittent controls, however, do not provide

a sufficient guarantee that national primary and

secondary ambient air quality standards will be

maintained.

As the court of appeals stated in Kennecott Cop-

per Corporation v. Train, supra, slip op. 10:

Intermittent control systems (such as those re-

stricting production, or utilizing less polluting

fuels, during periods of adverse weather) do

limit the amount of pollutant emitted while such

controls are being applied. However, the reli-

ability and enforceability of such controls is

questionable; they may not be implemented when

they are in fact needed. Moreover, there is no

assurance that temporary reductions in emis-

sions resulting from such controls will not be

balanced, or even exceeded, by an increase in

the amount of pollutant emitted when weather

conditions improve and production is increased

to make up for prior losses, or more polluting

fuels are again used. Thus, intermittent con-

trols, like tall stacks, may only disperse the pol-

lutant rather than reduce it. Tall smokestacks

disperse a pollutant through greater quantities

of air; intermittent control systems disperse a

pollutant through longer periods of time. Nei-

ther assures a reduction in the quantity of the

pollutant eventually emitted. Under section

[110(a)(2)(B)], EPA may require that assur-

ance. [Footnote omitted. ]

12

Moreover, the use of intermittent controls that

merely regulate the timing of dispersion of pollu-

tants into the atmosphere is at odds with the policy

of non-degradation in the Clean Air Act.’ As the

court of appeals stated in Natural Resources Defense

Council, Inc. v. Environmental Protection Agency,

supra, 489 F. 2d at 408-409:

Dispersion * * * techniques operate by keeping

pollutants out of areas of high pollutant con-

centration, and dispersing them to lower con-

centration areas; their objective is to reduce

concentrations in high-concentration areas. In-

evitably, however, the pollutants emitted into

the atmosphere must end up somewhere; and the

atmosphere at their destination, wherever that

may be, will be degraded, in violation of the con-

gressional policy. The only techniques fully

capable of guaranteeing non-degradation are

[continuous] emission limitation techniques.*

ce. “[{S]ubsequent legislation declaring the intent of

an earlier statute is entitled to significant weight,”

National Labor Relations Board v. Bell Aerospace

* This policy requires that areas of clean air, where air

quality indices are above the levels set by the national stand-

ards, must not be degraded, even though degradation will

not reduce the quality of the air below levels specified by the

standards. See S. Rep. No. 91-1196, 91st Cong., 2d Sess.

2 (1970); H.R. Rep. No. 91-1146, 91st Cong., 2d Sess. 1, 2,

5 (1970); Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 255

(D.D.C.), affirmed sub nom. Fri v. Sierra Club, 412 U.S. 541.

* The court classified both tall stacks and intermittent con-

trols as dispersion techniques (489 F.2d at 394 n.2).

13 ——

Company, 416 U.S. 267, 275,° and the legislative his-

tory of subsequent amendments to the Clean Air

* In its petition (at pp. 18-23), TVA contends that a num-

ber of statements by former Administrator Ruckelshaus show

that he interpreted Section 110(a) (2) of the Clean Air Act

to permit intermittent emission controls instead of continu-

ous emission controls. In the statements to which TVA

refers, however, Administrator Ruckelshaus merely restates

the general congressional policy, reflected in the Act, to re-

quire the Administrator to approve state plans that meet the

ambient air quality standards and not to dictate to the state

precisely what techniques should be used to maintain those

standards. Accordingly, he construed the term “emission limi-

tations” to include a variety of measures, such as restriction

on the hours and manner of operations. (Hearings on Im-

plementation of the Clean Air Act Amendments of 1970—

Part 1 (Title I) before the Subcommittee on Air and Water

Pollution of the Senate Committee on Public Works, 92d

Cong., 2d Sess. 314-315 (1972).)

Administrator Ruckelshaus did not construe the Act, how-

ever, to permit the approval of state implementation plans

that would not reasonably guarantee the maintenance of the

ambient air quality standards, or that would not assure a

reduction in the quality of the pollutant eventually emitted;

to the contrary, he assumed throughout that plans would be

approved only if they included measures that were sufficient

for attaining and maintaining such standards. In fact, at an

earlier point in the hearings he stated, “whenever we adopt

a control strategy, the purpose of that control strategy is to

reduce emission * * *. What we mean by emission limitations

is really emission reduction * * *” (Hearings, supra, at 265).

Intermittent control measures are not satisfactory “emission

limitations”, however, since they do not guarantee the main-

tenance of the ambient air quality standards or assure a re-

duction in the quantity of pollutants eventually ernitted (see

pp. 11-12, supra). Accordingly, the statements of Adminis-

trator Ruckelshaus should not be construed to permit inter-

mittent emission controls when continuous emission controls

are available.

14

Act shows that Congress intended that state imple-

mentation plans should require the use of continuous

emission controls when available.

Congress amended the Clean Air Act in 1974, in

response to the 1973 oil embargo and resulting en-

ergy crisis. As it passed the House, the 1973 prede-

cessor to the 1974 amendment, which subsequently

was vetoed, permitted the permanent use of inter-

mittent controls at certain emission sources.” The

Conference Committee eliminated this provision and

in its draft permitted intermittent controls only by

pollution sources that converted to coal and then

only as a temporary relief measure under specified

conditions."

In March 1974, the Administrator transmitted a

new proposed bill to the House which, in pertinent

part, was the same in substance as the statute even-

tually adopted. The Administrator also transmitted

another proposal, which he did not support, that

would have amended Section 1857c-5(a)(2)(B) to

provide that nothing in that section was to be con-

strued “ ‘to preclude use of * * * intermittent control

measures.’”’** The Administrator stated that this

Murphy Amendments to H.R. 11450, Section 201 93d

Cong., Ist Sess. (1973) ; 119 Cong. Rec. 41775-41777 (1973).

"1S. Conf. Rep. No. 93-663, 93d Cong., Ist Sess. 83-84

(1973).

12 Letter dated March 22, 1974, from Russell E. Train,

Administrator of EPA, to Hon. Carl T. Albert, Speaker of

the House of Representatives, attached to H.R. Rep. No. 93-

1013, 93d Cong., 2d Sess. (1974). See Kennecott Copper

Corporation V. Train, supra, slip op. 14.

15

proposed amendment, which was intended “ ‘to

allow the use of intermittent control strategies as a

permanent method for achieving compliance with

stationary source emission standards,’ ” would “ ‘sig-

nificantly weaken the Clean Air Act.’” The Admin-

istrator then reaffirmed the contrary position taken

by the Environmental Protection Agency, stating,

“*lajs in the past, EPA will contend that the in-

termittent controls can be used only as an expedient,

temporary control measure.’ ” *

In the course of presenting to the Senate the Con-

ference Report on the 1974 amendment, Senator

Muskie, Chairman of the Subcommittee on Air and

Water Pollution and manager of the bill in the Sen-

ate, stated (120 Cong. Rec. S 10409 (daily ed., June

12, 1974)):

* * * [N]o one should view limited application

of enforceable strategies related to this legisla-

tion as a precedent for future legislation or as

a reinterpretation of the requirements of the

existing law which bar the application of in-

termittent control strategies as a substitute for

emission limitations.

When finally enacted, the Energy Supply and En-

vironmental Coordination Act of 1974, Pub. L. 93-

319, 88 Stat. 246, added a new Section 119 to the

Clean Air Act, 42 U.S.C. (Supp. IV) 1857c-10,

which permits certain power plants and other large

emission sources that convert from burning oil or

's Kennecott Copper Corporation v. Train, supra, slip op.

14-15.

16

natural gas to burning coal to obtain temporary re-

lief from air pollution control requirements and

thereby to use intermittent controls temporarily if

certain specified conditions are met. One of the con-

ditions is that the source in question must enter into

binding contracts to acquire either a long-term sup-

ply of low-sulphur coal or a “continuous emission

reduction system.” Whichever alternative is chosen,

the arrangement must achieve the necessary degree

of emission reduction not later than December 31,

1978. Use of intermittent controls after that date

is not permitted. See Section 119(c)(2)(B) and

(C), 42 U.S.C. (Supp. IV) 1857c-10(¢c) (2)(B) and

(C).

Since the purpose of this legislation was to en-

courage certain power plants to convert from oil or

gas to coal and to provide relief to those plants that

switched to coal because of the oil supply crisis, it

is inconceivable that Congress intended to impose

on such sources a greater burden than if they had

not converted. Accordingly, Congress must have as-

sumed that intermittent controls were not permitted

prior to the 1974 amendment.

- -_——— i «6 ee ew

17

CONCLUSION

For the reasons stated, it is respectfully sub-

mitted that if the Court agrees that the case is moot,

the petition for a writ of certiorari should be grant-

ed, the judgment should be vacated and the case

remanded for dismissal as moot. Otherwise, the

petition for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

PETER R. TAFT,

Assistant Attorney General.

RAYMOND N. ZAGONE,

EDWARD J. SHAWAKER,

CHARLES W. SHIPLEY,

Attorneys.

FEBRUARY 1976.

W sv. &. sovernment painting orrice; 1976 200928 209