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

Supreme Court, U. &

IN THE MAR 31. 1976

SUPREME COURT OF THE UNITEB:SFATES: 25. occ

OCTOBER TERM, 1975

NO. 75-787

TENNESSEE VALLEY AUTHORITY,

Petitioner

Uv.

ENVIRONMENTAL PROTECTION AGENCY

and RUSSELL E. TRAIN, ADMINISTRATOR,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

REPLY OF THE TENNESSEE VALLEY

AUTHORITY TO THE BRIEF FOR THE

FEDERAL RESPONDENTS IN OPPOSITION

Herbert S. Sanger, Jr.

General Counsel

Tennessee Valley Authority

Knoxville, Tennessee 37902

Lewis E. Wallace

Deputy General Counsel

Thomas A. Pedersen

Robert A. Washburn

Attorneys for Petitioner

TENNESSEE LAW PRINTERS, P. 0. Box 277, Knoxville, Tennessee, Phone 525-4202

3-27-76-100

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO. 75-787

TENNESSEE VALLEY AUTHORITY,

Petitioner

v.

ENVIRONMENTAL PROTECTION AGENCY

and RUSSELL E, TRAIN, ADMINISTRATOR,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

REPLY OF THE TENNESSEE VALLEY

AUTHORITY TO THE BRIEF FOR

THE FEDERAL RESPONDENTS

IN OPPOSITION

This reply is limited to a short discussion of two funda-

mental errors found in the Environmental Protection

Agency's brief in opposition to the petition for a writ of

certiorari: (1) EPA's contention that this case is moot

totally ignores the sworn statement of the head of Ken-

tucky's environmental protection department, and relies

1

instead entirely on EPA's conjectures as to what future

regulatory action Kentucky may plan; and (2) the legis-

lative history of the Energy Supply and Environmental

Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat.

246, does not, as claimed, support EPA's position in this

case.

(1) The Controversy Is Not Moot.

EPA argues that the court of appeals erred in holding

that the case is not moot because

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 evading

review,’ Southern Pacific Terminal Co. v. Interstate

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 decided

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. [Brief

for the Federal Respondents in Opposition, p. 7 (here-

inafter "EPA's Brief"). }

This statement is contrary to the record. John S.

Hoffman, Secretary of the Department for Natural Re-

sources and Environmental Protection for the Common-

wealth of Kentucky, stated iff his affidavit of June 9, 1975

(filed with TVA's reply brief in the court of appeals), that:

Should that Court determine that EPA is without statu-

tory authority to disapprove of this regulation [section

1(1)(b) of Kentucky's implementation plan], we will then

reconsider its reinstatement as a part of Kentucky's

Implementation Plan.

As clearly shown in Secretary Hoffman's affidavit,

Kentucky will not reinstate section 1(1)(b) as long as EPA

claims that it is invalid. However, the affidavit also

shows that the regulation will be reconsidered by Ken-

tucky if this Court finds that EPA has no authority to

strike itdown. Accordingly, this is a case in which

"the issues presented here [are] ‘capable of repetition,

yet evading review,’ so that [petitioner is] adversely

affected by government ‘without a chance of redress.""

Super Tire Eng'r Co. v. McCorkle, 416 U.S, 115, 122

(1974). Even more, EPA's action is also a continuing

wrong which is currently preventing reconsideration of

the disputed regulation by Kentucky.

(2) The Legislative History of Subsequent Amendments

to the Clean Air Act Does Not Support EPA's Position.

EPA stated in its brief that

. . « the legislative history of subsequent amendments

to the Clean Air Act shows that Congress intended that

state implementation plans should require the use of

continuous emission controls when available. [EPA's

Brief, pp. 13-14. ]

The "subsequent amendments” relied upon by EPA are

the Energy Supply and Environmental Coordination Act of

1974 (hereinafter "ESECA"), Pub. L. No. 93-319, 88 Stat.

246, which was special legislation designed to solve the

particular problem created by the Arab oil embargo of

September 1973. Among the emergency measures which

A copy of this affidavit is attached for the Court's convenience as

Appendix A,

4

Congress devised to reduce the Nation's dependence on

foreign oil was to grant special temporary relief from

air pollution control requirements to those power plants

and large industrial plants which were converting from

oil to coal. This provision was enacted as section 119

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

1974).

During the course of developing this special legislation

the House adopted the so-called "Murphy amendment,"

which would have clarified the meaning of section 110 of

the Clean Air Act by clearly permitting intermittent

emission limitations as a full-fledged method for meet-

ing the national ambient air quality standards. In its

brief, EPA correctly points out that the "Murphy amend-

ment" was subsequently deleted by the conference com- —

mittee of the two Houses. It incorrectly concludes,

however, that this action indicates that Congress intended

to restrict the number of alternative methods available to

achieve the national air quality standards only to "con-

tinuous emission controls," such as scrubbers or the full -

time use of low sulfur fuel (EPA's Brief, pp. 12-16). In

fact, Congress had no such intent. In discussing the

“Murphy amendment," the conference committee stated:

The House-passed bill would have permitted the use

of so-called intermittent or alternative control strate-

gies as a means of meeting ambient air quality stand-

ards if such strategies were determined by the Admin-

istrator to be reliable and enforceable ["Murphy amend-

ment'']. This permission would have applied to both

existing sources not affected directly by the energy

emergency and sources required to convert to coal

under the emergency legislation.

5

The Senate bill would have permitted revision of exist-

ing implementation plans to require use of continuous

emission reduction’ systems on any fuel -burning sta -

tionary sources affected by shortages of fuels, sus-

pensions or conversions.

The conference agreement does not include either of

the foregoing broad provisions. Instead, the con-

ferees decided to limit the application of this provi-

sion to those sources which convert to combustion of

coal as a result of the energy emergency. [S. Conf.

Rep. No. 93-663, 93d Cong., Ist Sess. 83 (1973);

emphasis added. }”

Rather than rejecting intermittent controls per se as

a method to attain the national ambient air quality stand-

ards, the conference committee simply rejected both the

“Murphy amendment" and the Senate proposal because

they were overly broad and not relevant to the limited

purpose of the special legislation being considered. EPA's

contrary inferences are unwarranted.

Identical language is found in a later conference report. S. Conf.

Rep. No. 93-681, 93d Cong., 2d Sess., as printed at 120 Cong. Rec.

S 1532 (daily ed. Feb. 7, 1974). The actual bill considered in both of

these conference reports (S. 2589) was subsequently vetoed by the Presi-

dent for reasons unrelated to this case. 120 Cong. Rec. S 2883-84 (daily

ed. Mar. 6, 1974), Subsequently, Congress met the President's objections

and enacted the Energy Supply and Environmental Coordination Act of 1974.

6

CON CLUSION

For the foregoing reasons, and as set forth in the peti -

tion for a writ of certiorari, the petition should be granted.

Respectfully submitted,

Herbert S. Sanger, Jr.

General Counsel

Tennessee Valley Authority

Knoxville, Tennessee 37902

Lewis E. Wallace

Deputy General Counsel

Thomas A. Pedersen

Robert E. Washburn

Attorneys for Petitioner

CERTIFICATE OF SERVICE

[ certify that the foregoing brief was served on all

parties required to be served by mailing three copies

thereof airmail, postage prepaid, to counsel of record

as follows: Honorable Robert H. Bork, Solicitor Gen-

eral, Department of Justice, Washington, D.C. 20530;

Charles W. Shipley, Esq., Pollution Control Section,

Land and Natural Resources Division, United States De-

partment of Justice, Washington, D.C. 20530, and

Richard J. Denny, Jr., Esq., Office of General Counsel,

Environmental Protection Agency, 401 M Street, SW.,

Washington, D.C. 20024; on the intervenor Common-

wealth of Kentucky by mailing copies to Ed W. Hancock,

Attorney General, Commonwealth of Kentucky, Capitol

Building, Frankfort, Kentucky 40601; and on the inter -

venor Natural Resources Defense Council, Inc., by

mailing copies to Richard E. Ayers, Esq., 1710 N Street,

NW., Washington, D.C. 20036.

This .3¢ Mday of March, 1976.

Thomas A. Pedersen

Division of Law

Tennessee Valley Authority

Knoxville, Tennessee 37902

Attorney for Petitioner

Tennessee Valley Authority

APPENDIX A

AFFIDAVIT OF JOHN S. HOFFMAN

COMMONWEALTH OF KENTUCKY ) ge

)

COUNTY OF FRANKLIN )

Affiant, John S. Hoffman, being first duly sworn, states

as follows:

I am Secretary of the Department for Natural Resources

and Environmental Protection for the Commonwealth of

Kentucky. Among other duties and responsibilities, this

Department has the responsibility for the adoption, admin-

istration and enforcement of rules and regulations for the

control of air pollution, including the preparation, adoption

and enforcement of Kentucky's Implementation Plan for the

control of air pollution pursuant to the national Clean Air

Act.

The official records of the Department disclose that on

February 15, 1972, after a public hearing and in accord-

ance with Section 110 of the Clean Air Act, Kentucky

adopted an alternate control regulation as a part of its air

pollution control regulations. This regulation, as pub-

lished in the existing regulations, reads as follows:

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.

This regulation was a part of Kentucky's Implementa-

tion Plan which was submitted by Governor Ford to the

federal Environmental Protection

[2]

Agency for approval. EPA's approval of the Implemen-

tation Plan on May 31, 1972, was set aside by court action

because of EPA's failure to comply with the procedural

requirements of the law.

The plan was then resubmitted by Governor Ford to

EPA for approval. On August 15, 1974, EPA's Adminis-

trator approved the plan again, except for the alternate

control regulation which was disa proved as failing to

meet EPA's regulations.

Under Kentucky law, all existing regulations are re-

quired to be reexamined and new regulations issued by

July 1, 1975, at which time all existing regulations expire.

In the proposed new regulations the alternate control pro-

vision has been deleted and will not be considered for rein-

statement until EPA changes its policy or it has been judi-

cially determined that EPA is without legal authority to

disapprove of such a regulation. The question of EPA's

authority to strike down this regulation is now being liti -

gated in two actions now pending in the United States Court

of Appeals for the Sixth Circuit. Should that Court deter -

mine that EPA is without statutory authority to disapprove

of this regulation, we will then reconsider its reinstate -

ment as a part of Kentucky's Implementation Plan.

/s/ John S. Hoffman

John S. Hoffman

10

Subscribed and sworn to before me, a Notary Public

in and for the Commonwealth and County aforesaid, by

John S. Hoffman, this 9th day of June, 1975.

My Commission expires June 21, 1976,

/s/ Rita G. Puckett

Notary Public