Amicus Brief — Alabama Power Co. v. Sierra Club

Supreme Court of the Wnited States

October Term, 1983

No, 83-1429

ALABAMA POWER CO., et al.,

Petitioners,

v.

SIERRA CLUB, et al.,

Respondents.

On Petrrion For A Warr Or Certionan: To Tue

Unrrep States Courr Or Aprgars For

Tae Disrmcr Or Corumsm Cincurr

MOTION OF OHIO MINING AND RECLAMATION

ASSOCIATION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

AND

BRIEF AMICUS CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Rosert L. Bausaker

(Counsel of Record)

C. Lvraer Heckman

May 30, 1984

i

TABLE OF CONTENTS

Motion for Leave to File Brief

Amicus Curiae and Statement

of Interest of Amicus Curiae 1

el IRE es PRES NE a ot RR A 1-l

TABLE OF AUTHORITIES

Cases

Sierra Club v. EPA, 719 F.2d 436

bo kt | REARS aa eee

Alabama Power Co. v. Costle, 636 F.2d 323

RR oo) ee ee

Statutes

The Clean Air Act, 42 U.S.C. § 7401, et seq.

(Supp. V 1981)

§ 107, 42 U.S.C. § 7407 3 Sadia pra

§ 110, 42 U.S.C. § 7410 es

Si wee. 60 oa

o--USG 6908 ee

bh 26 OSC. (708 a

Legislative Materials

H.R. Rep. No. 294, 95th Cong.

EE G4 SOREN LER ren 1-2, 1-3, 1-4, 1-6

Hearings on H.R. 4151, H.R. 4758, and H.R. 4444

before Subcomm. on Health and the Environment of

the House Comm. on Interstate and Foreign Com-

merce, 95th Cong. Ist Sess. 1678 (1977) _..._ 1-5

Regulations

40 C.F.R. § 52.1882 (a) (4) (iii) (A) and (B)

Federal Register

46 Fed. Reg. 8106 et. seq. (1981)

Miscellaneous

Department of Energy, Energy Information Adminis-

tration, Publication No. DOE/EIA-0437 (1982),

Financial Statistics of Selected Electric Utilities for

1982 (1984) . aihahisewtith ae

stalin aa tei § 84.04 [7] (16 983)

D. Costle, New Source Performance Standards os

Coal-Fired Power Plants, 29 J. Air Poll. Contr. A.,

8.08 1)

Executive Office of the President:

National Energy Plan 65 (1977) —

2,3

5,6

1-5

IN THE

Supreme Court of the United States

October Term, 1983

No. 83-1429

ALABAMA POWER CO., et al.,

Petitioners,

Vv.

SIERRA CLUB, et al.,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

AND

STATEMENT OF INTEREST OF AMICUS CURIAE

The Ohio Mining and Reclamation Association

(OMRA) respectfully moves the Court for permission

to file the attached brief amicus curiae in support of the

Petition for a Writ of Certiorari. The Interest of OMRA

in this case is set forth below.

I, STATEMENT OF INTEREST OF AMICUS CURIAE

OMRA is a trade association whose members are

Ohio coal producers. Ohio is a major coal producing

state, with 21.5 billion tons of bituminous high sulfur

coal reserves concentrated in 23 eastern counties. Nearly

all of Ohio's coal is produced by OMRA member

companies.

Approximately 85% of Ohio coal is sold to electric

utility companies to be used in the generation of elec-

tricity. The coal industry in Ohio and other Appalachian

states has been severely impacted by, and is very sensi-

tive to, implementation of the Clean Air Act. Total Ohio

coal production has dropped precipitously from a peak

2

of 55,136,699 tons in 1970, to 33,209,000 tons in 1983."

At 1983 prices, this decline represents a direct loss of

over $613 million to Ohio coal mining communities, not

counting “ripple effect” losses. A study by the United

States Environmental Protection Agency (EPA) found

that Ohio lost 6.76 million tons ($190 million) of annual

coal production solely as a result of electric utility “coal

switching” (from Ohio coal to relatively lower sulfur

coal produced in other states) to comply with sulfur

dioxide (SO:) limitations imposed under the Clean Air

Act in 1976 and 1977.’

The cost of this decline in production measured in

terms of jobs lost has been tremendous. The EPA study,

which focused only on the effects of the loss of 4.05 million

tons of annual coal production attributable to coal switch-

1The following table, compiled from OMRA statistics, shows

the extent to which total Ohio coal production has declined steadily

since the Clean Air Act of 1970 was enacted and over time as it

has been amended and implemented.

your Production

1970 55,136,699

1971 49,016,773

1972 50,577,531

1973 45,666,478

1974 45,074,596

1975 46,167,203

1976 46,803,891

1977 46,940,131

1978 40,004,185°

1979 43,527,651

1980 40,030,424

1981 36,833,350°

1982 36,906,301

1983 33,209,000

*Portion of decline due to United Mine Workers strike.

*See, Reproposed Determination Under Subsection 125(a) of

the Clean Air Act; Availability of Coal Use, Economic and Un-

ee eae

8

ing by Ohio utilities, found that the lost production

would result in the loss of 1,890 coal mining jobs. In

addition, EPA found that the direct loss of coal mining

jobs would have a “ripple effect” resulting in an even

greater loss of jobs in other related sectors of employ-

ment. According to the study, the “unemployment attribu-

table to the actual and projected Ohio power plant SO:

compliance coal switch estimated by EPA would amount

to between 4,725 -5,480 jobs statewide.” Even more

significantly, the EPA study found that 4,252 - 4,915 jobs

would be lost in the 23 county southeastern Ohio coal

producing area — an economically deprived Appalachian

area that struggles with chronic hard core unemployment

in an economy entirely dependent on coal mining. A similar

state of affairs is certain to exist in Appalachian coal com-

munities outside Ohio.

It is against this background that OMRA has cause

to be especially concerned about the grave impact of the

lower court's decision on both existing coal supply con-

tracts and the prospects for future markets for Ohio coal.

The demand for Ohio coal is acutely sensitive to

changes in SO: emission limits. SOz emission limits estab-

lished for Ohio utilities in 1976 and 1977 were determined

through modeling that was based on the then-prevailing

EPA “good engineering practice” (“GEP”) standard of 2.5

times building height. A reduction in credit given for

stack height will reduce emission limits. As the lower

court acknowledged, the “burden” ‘created by changing

the rules as to stack height may lead utilities to “renegotia-

tion of contracts in order to purchase coal with lower

sulfur content.” Sierra Club v. EPA, 719 F.2d 436, 468

(D.C. Cir. 1983).‘ In view of the fact that it is not eco-

Id. at 8109.

‘Coal supply contracts now regularly include provisions which

permit the utility purchaser to terminate the contract if it is unable

to burn the coal produced in compliance with applicable SO,

regulations. See generally, 4 Coal Law and Reg. § 84.04[7] (1983).

4

nomically or technologically feasible to reliably blend

coals with different sulfur contents to achieve an accepta-

ble average, even marginal reductions in emission limits

threaten termination of entire coal supply agreements.

Consequently, reductions in emission limits compelled by

the lower court's rejection of the 2.5 rule are likely to come

directly at the expense of further losses to the Ohio coal

industry.’ Similarly, the lower court’s rejection of EPA’s

“plume impaction” rule and its restrictive definition of

“nearby” as it relates to terrain obstacles can only lead to

further reductions in emission limits, and thereby the

demand for Ohio coal, by sources located in or near

rugged Appalachian terrain.

Ohio utilities alone have already spent $1.8 billion

for air pollution controls, more than utilities in any

other state and half a billion dollars more than util-

ities in the second-ranking state.* Compliance strategies,

and related coal supply contracts, have been developed

‘Illustrative of the devastating effect of coal switching and the

resulting mine closings is the impending closing of the Sunnyhill

Mine in New Lexington, Ohio. The Michigan Air Pollution Control

Commission has ordered Consumers Power Company of Jackson,

Michigan to begin burning low sulfur coal in order to comply

with SO, emission limits established under the Michigan plan to

implement section 110 of the Act. Unless an extension of the time

within which Consumers Power must bring its SO, emissions into

compliance is obtained, the Sunnyhill Mine, which supplies 1.5

of its total production), will be closed. The resul

immediate loss of 500 coal mining jobs, the loss of hundreds

other jobs through the “ripple effect,” a dramatic drop in local

government revenues, and serious disruption of the

system. See, Columbus Dispatch, December 25, 1983.

*Department of Energy, Energy Information Administration,

Publication No. DOE/EIA-0437(1982), Financial Statistics of Se-

lected Electric Utilities for 1982 (1984).

Ee:

S

9, F

and entered into on the basis of emission limits estab-

lished in reliance on the traditional 2.5 times building

height GEP stack height formula. The lower court's re-

jection of EPA’s stack height regulations threatens a

catastrophic unraveling of an existing interdependent

system of pollution control strategies and coal supply

agreements.

Not only does the decision of the court below

threaten existing sales of Ohio coal, but it also threatens

to forever foreclose new markets. As discussed above, the

threat to existing coal production comes from the fact

that existing power plants will likely comply with reduced

emission limits by switching to lower sulfur coal. The

threat to new markets for Ohio coal comes from the

fact that the lower court's decision will result in artificially

induced emission limits so low that Ohio coal cannot be

burned even with the best available control technology.

As then EPA Administrator Douglas Costle explained, new

source SO: emission limits for power plants were inter-

tionally set by EPA at the lowest level that was obtainable

by burning high sulfur coal with the use of control tech-

nology capable of achieving a 90% reduction in emissions:

Regarding the maximum emission limit, EPA

had to determine a level that was appropriate when

a 90% reduction in potential emissions was Fy gang

to high-sulfur coals. Towards this end, the per-

formed detailed assessments of the potential impacts

of a wide range of emission limitations on high-sul-

fur coal reserves. The results revealed that a sig-

nificant portion (up to 22%) of the high-sulfur

coal reserves in the East, Midwest, and portions of

the Northern Appalachian coal regions would require

more than a 90% reduction if emission limita-

tion was established below 1.2 lb/million Btu (30-

day rolling average).

6

Aconesiney, EPA concluded the emission limitation

should be maintained at 1.2 Ib/million Btu (30-day

rollin ng average). A more stringent emission limit

would be counter to one of the basic —— of the

1977 Amendments, that is, encouraging the use of

higher sulfur coals. "

When compared to the EPA regulations, the lower

court’s decision produces greater artificial exaggeration

of ambient air quality impacts of proposed new sources,’

and greater artificial reductions in the margin of growth

available before ambient air quality standards or preven-

tion of significant deterioration increments are exceeded.’

™D. Costle, New Source Performance Standards for Coal-Fired

Power Plants, 29 J. Air Poll. Contr. A. 690, 691 (1979).

*The decision of the court below dictates that, for the purpose

of calculating Clean Air Act emission limits, source stacks be

fictitiously shortened to a greater extent than prescribed by EPA’s

regulations and the traditional 2.5 times building height GEP

formula. The more a stack is fictitiously shortened, the higher will

be the imaginary concentration of the relevant “worst case” predict-

ed ambient air quality impact of the source. The higher the pre-

dicted impact, the lower the allowable emission rate.

*For most areas of the country, there is a finite margin by

which actual air quality is better than the National Ambient Air

Quality Standards. The decision of the court below has the effect

of fictitiously worsening air quality for purposes of EPA’s stan-

dard-setting bookkeeping. The resulting fictitious smaller margin

between predicted air quality and the National Ambient Air Qual-

ity Standards means less “room” to accommodate even a small

amount of growth in emissions from new sources.

Similarly, the decision below skews EPA’s bookkeeping of the

consumption of the significant deterioration increments set forth

in section 165 of the Act, 42 U.S.C. § 7465, and thereby locks out

a portion of the new source growth that could have been accom-

modated under the regulations that were set aside.

Thus the decision below artificially decreases the room avail-

able to accominodate new sources, and, as explained in the preced-

ing footnote at the same time artificially increases the room “occu-

pied” by new sources.

7

As a result many new power plants will be subject to emis-

sion limits more stringent than the 1.2 lb/million Btu new

source performance standard,” thereby effectively pro-

hibiting their use of higher-sulfur coal. Indeed, the artifi-

cially determined emission limits that result from the lower

court’s decision will be so low in some cases that new

source construction will be foreclosed entirely.

Equally significant, but not addressed by the lower

court, is the adverse impact on future markets for Ohio coal

of the rejection of EPA’s uniform and predictable GEP

formula, which the lower court conceded Congress

“probably had in mind,” 719 F.2d at 457. Electric utilities

and other potential consumers of Ohio coal require long-

term fuel supply commitments (often ten years or more)"

which require very large capital commitments by the coal

producer. Hence, the lower court was seriously mistaken

in its simplistic assumption that the only jusification for a

GEP formula is that it is “simpler and cheaper,” 719 F.2d

at 456, to apply. Much more important is the fact that only

a fixed “formula” approach to determining GEP provides

the stability and predictability necesssary if Ohio coal pro-

ducers and their potential customers are to undertake the

long-range planning and huge capital commitments that

are required to enter into long-term coal supply contracts.

The lower court’s rejection of a GEP formula makes

it impossible to determine the amount of stack height

credit available at a given site, and thus the SO: emission

limits for that site, in advance of a modeling demonstra-

tion. Moreover, the decision below renders GEP stack

height, once established, subject to revision and variation

Generally section 110 of the Act, 42 U.S.C. § 7410, prohibits

ambient air quality standards from being exceeded and section

165, 42 U.S.C. § 7465, prohibits prevention of significant deteriora-

tion increments from being exceeded.

NEPA regulations require that utilities provide proof of a

ten year supply of “compliance” coal. See, e.g., 40 C.F.R. § 52.

1882 (a)(4) (iii)(A) and (B).

as modeling assumptions change.” The resulting uncer-

tainty will discourage new sources from entering into

long-term contracts for Ohio coal supplies and will, in-

stead, pressure them to locate in or seek coal supplies from

other areas.

12Computer models used by EPA to simulate the dispersion of

pollutants in the ambient air require hourly meteorological data

(wind speed, wind direction, and atmospheric stability), source

emission characteristics (stack height, and the temperature, velocity,

and mass of emissions), and topography as input. The model cal-

culates hourly pollutant concentrations at each of hundreds of

“receptors” carefully selected to locate the worst case impact from

a single source and the worst case cumulative impact from all

sources that interact. The identifiable impacts of all interacting

sources are added to the background concentration to give the total

predicted pollutant concentration at all receptors.

The input variables that determine the model output are sub-

ject to constant change. Meteorological conditions vary all the

time, new emission sources are established and old ones retired

over time, and pollutant background concentrations vary from one

time to another and one place to another. Moreover, modeling

methodology, formulas, and policies are themselves subject to fre-

quent change by EPA, and on occasion by the courts.

By requiring that “excessive concentrations” for purposes of

defining allowable stack height credit under section 123 be deter-

mined on a case by case basis, the lower court has rendered deter-

minations under section 123 subject to all the vagaries of air quality

computer modeling as exacerbated by the use of intentionally false

input data. As a consequence, the court below made GEP into a

moving target that will change with each different modeling analy-

sis that is conducted.

636

388-94 (D.C.Cir. 1979). Also, whenever a State seeks to redes-

ignate an area as attainment under Section 107 of the Clean Air

Act, 42 U.S.C. § 7407, EPA usually requires a

to justify the redesignation.

f

II. CONCLUSION

OMRA seeks the Court’s permission to submit its

brief amicus curiae in support of the Petition for a Writ

of Certiorari in order to demonstrate that the conclusions

reached by the lower court fly in the face of one of

the central objectives of the Clean Air Act Amendments

of 1977 —to improve air quality without creating a dis-

ruption in existing energy markets and without giving

one region of the Nation an advantage over another

with respect to industrial development. Indeed, as ex-

plained in the attached brief, Congress included provisions

in the 1977 amendments for the specific purpose of

encouraging the use of domestic coal supplies, particu-

larly including the medium and high sulfur coals found

in Ohio and other Eastern and Midwestern states, in a

way that would not compromise the basic health and

welfare goals of the Act. The decision of the court below

wholly ignores, and raises serious obstacles to the ac-

complishment of, this plainly expressed Congressional

objective. OMRA’s member companies are among those

who are the most adversely affected by the decision below.

Accordingly, this Motion for Leave to File Brief

Amicus Curiae in support of the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Rosert L. BRUBAKER

(Counsel of Record)

C. LurHer HECKMAN

Rosert W. TRAFFORD

Porter, Wricut, Morris & ARTHUR

37 West Broad Street

Columbus, Ohio 43215-4171

(614) 227-2000

May 30, 1984 Counsel for Amicus Curiae

Ohio Mining and Reclamation

Association

The filing of the foregoing motion has

been necessitated by the refusal to

give consent of the Natural Resources

Defense Council, the Sierra Club, and

the States of New York and Pennsylvania.

1-1

IN THE

Supreme Court of the Hunited States

October Term, 1983

No. 83-1429

ALABAMA POWER CO.,et al.,

Petitioners,

Vv.

SIERRA CLUB, et al.,

Respondents.

BRIEF AMICUS CURIAE OF THE

OHIO MINING AND

RECLAMATION ASSOCIATION

IN SUPPORT OF PETITION FOR

A WRIT OF CERTIORARI

I. INTEREST OF AMICUS CURIAE

The interests of the amicus curiae are set forth in the

attached Motion for Leave to File Brief Amicus Curiae.’

Il, INTRODUCTION AND SUMMARY OF

ARGUMENT

In rejecting EPA’s regulations, the court below inter-

preted section 123 of the Clean Air Act in a manner

squarely in conflict with one of Congress’ principal objec-

tives — to encourage the use of the Nation’s abundant coal

resources without sacrificing sound environmental goals.

As the discussion below demonstrates, Congress was keen-

ly aware of the potential impact of the Act on the demand

for coal, particularly the medium and higher sulfur coals

1The motion and brief together do not exceed applicable page

limits for briefs amicus curiae. See, Supreme Court Rule 36.1.

1-2

found in the East and Midwest. Congress was similarly

aware that there was a potential for the Act to create a

bias, not only in the demand for fuel supplies, particularly

coal, but also for the creation of advantages for one region

of the Nation over another with respect to future industrial

growth. In response to these concerns, Congress inserted

provisions in the Act expressly intended to neutralize the

bias towards lower sulfur coal, and the location of new

emission sources in regions where such coal is found, by

eliminating incentives for new pollution sources to switch

to the lower sulfur coals as a means of reducing SO: emis-

sions. The decision below, by interpreting section 123 in

a manner which it acknowledges may force utilities burn-

ing higher sulfur coal to switch to lower sulfur coal, Sierra

Club v. EPA, 719 F.2d 436, 468 (D.C.Cir. 1983), and

by instructing EPA to promulgate new regulations which

“err on the side of reducing stack height” in order to fur-

ther reduce emissions, 719 F.2d at 450, has turned these

important Congressional objectives on their head.

Ill, ARGUMENT

When Congress set about the enactment of the Clean

Air Act Amendments of 1977, it had before it the benefit

of experience gained during seven years of implementa-

tion of the Clean Air Act of 1970. Based on this expe-

rience Congress was particularly concerned that “new

source performance standards” fur power plants promul-

gated by EPA up to that time had not achieved several

objectives sought in 1970 and had, in fact, “sometimes had

very different, almost opposite, results.”? The House Re-

port identified six respects in which EPA’s new source per-

*H.R. Rep. No. 294, 95th Cong., Ist Sess. 93, 187 (1977),

reprinted in, The Environmental Policy Division of the Congres-

sional Research Service of the Library of Congress, A Legislative

History of the Clean Air Act Amendments of 1977, 2560 (1978)

(hereinafter referred to as “1977 Legis. Hist.”).

1-3

formance standards had produced results in conflict with

earlier established Congressional objectives, three of which

are directly relevant here:

1. The standards give a competitive advantage

to those States with cheaper low-sulfur coal and cre-

ate a disadvantage for Midwestern and Eastern States

where predominantly higher sulfur coals are avail-

able;

2. These standards do not provide for maximum

racticable emission reduction using locally available

foi and therefore do not maximize potential for

long-term growth;

3. These standards do not help to expand the

energy resources (this is, higher sulfur coal) that

could be burned in compliance with emission limits

as intended.*

The House Report reflects its conclusion that the

problem with the new source performance standards

stemmed from the fact that under existing regulations

new coal-burning sources could comply with SO: emission

limits (1.2 Ibs per million Btu heat input) either by burn-

ing low sulfur coal or by installing costly “best available

control technology.”* Most sources, particularly utilities,

chose the less expensive alternative presented by low sulfur

coal. The result was a significant bias in the national energy

markets in favor of low sulfur coal as a fuel. The House

Report explained the problem:

Present new source performance standard regu-

lations do not require use of any pollution control

technology when a source burns very low-sulfur

coal. While this promotes the use of low-sulfur coal

and drives up the price of the coal, it means that bil-

lions of tons of medium- and high-sulfur coal (lo-

3]7d., at 187.

‘Id., at 186.

1-4

cated predominantly in the Midwestern and Eastern

United States) remain in the ground, unmined. Of

course, many new plants are taking advantage of this

weakness in present regulations by either hauling low-

sulfur coal great distances to use in new plants or

by actually relocating their plants near new low-

sulfur ia reserves. In this way, they escape re-

quirements for pollution control technology while vast

reserves of high- and medium-sulfur coal — particu-

larly in the East and Midwest — are going unused.

The mining industry of those regions stagnates and

industrial migration of other plants is threatened.°

To neutralize the bias which had been created in favor

of low sulfur coal Congress elected to require that all

new sources install the best available control technology

and to require that all emissions be reduced by some per-

centage to be established by EPA regardless of the fuel

burned. As a result, installation of best available control

technology could no longer be avoided by burning low

sulfur coal as a means of meeting new source performance

standards.

In a statement to the House Subcommittee, then EPA

Administrator Costle endorsed Congress’ new source per-

formance standard strategy as a method of simultaneously

achieving the objectives of reducing emissions, increasing

utilization of medium and high sulfur coals, and avoiding

the drastic adverse economic consequences that would be

visited on some regions as a result of a shift toward low

sulfur coal.

We support the provision in the House bill re-

quiring that new sources use best available control

technology (BACT) considering cost, energy, en-

vironmental, and health impact.

First, we will more effectively limit the increased

emissions resulting from greater coal utilization. Sec-

ond, we will use less of our air quality resources for

5Id., at 166.

1-5

each new facility, thereby allowing more growth with-

in the constraints of air bpd requirements. Third,

the BACT requirement will encourage powerplants to

use locally mined high and medium sulfur coal in-

stead of bringing in low sulfur coal from other regions.

This will avoid much of the regional unemploy-

ment and economic disruption that would result from

greater reliance on low sulfur coal rather than on con-

trol technology. Finally, the BACT requirement will

minimize the overall atmospheric loading of pollutants

in our environment.°

Significantly, Congressional action on the Clean Air

Act Amendments of 1977 also coincided with and inten-

tionally complemented President Carter’s National Energy

Plan, in which increased utilization of the country’s huge

coal reserves played a major role.

Coal development and production is most economical

when it is near major markets. Although coal pro-

duction will expand in many areas, there per be

large production increases in the highly populated

Eastern and Mid-West regions, where coal use in

industry and utilities could grow considerably in the

future. The required use of best available control

technology for new power plants should stimulate

even greater use of high sulfur Mid-Western and

Eastern coals."

Thus Congress sought and was able to serve still another

objective — reduction of the Nation’s dependence on im-

ported oil — by encouraging the use of Eastern and Mid-

western high sulfur coal without compromising its en-

*Clean Air Act Amendments of 1977: Hearings on H.R. 4151,

H.R. 4758, and H.R. 4444 before Subcomm. on Health and the En-

vironment of the House Comm. on Interstate and Foreign Com-

merce, 95th Cong., Ist Sess. 1678 (1977).

"Executive Office of The President, National Energy Plan 65

(1977).

1-6

vironmental mission. The House Report makes clear that

a primary purpose of the Clean Air Act Amendments of

1977 was to increase the use of coal, including medium

and high sulfur coal, to serve national energy goals.

The committee has designed this section and

the entire bill, to encourage and facilitate the in-

creased use of coal, and to reduce reliance (by old

and new sources alike), upon petroleum to meet

emission requireements (sic). ° * * In fact, the com-

mittee anticipates that economic factors actually will

dictate the use of coal. Thus, the committee proposal

will provide strong, positive incentives for new

sources to forego the use of oil as a means of comply-

ing with State plan requirements, in favor of more

abundant, less expensive domestic coal. ° * ° As a

result, millions of tons of coal, including currently

unutilized medium and high sulfur reserves in the

East and Midwest, will be burned by new sources

which will use the best available technology to meet

new source performance standards and State plan

emission requirements.*

In short, it is plainly apparent that one of the most

important objectives of the Clean Air Act Amendments

of 1977 was to correct a bias that had been created by

implementation of the Clean Air Act of 1970 in favor of

low sulfur coal, and to encourage the use of local coal

reserves, particularly the medium and high sulfur coal

found in the East and Midwest. It is difficult to imagine

a construction of section 123 which would place it more at

odds with the accomplishment of Congress’ goal than that

of the court below.

The Ohio coal industry today produces 14 million

fewer tons of coal on an annual basis than it did in 1977.

Indeed, the loss of coal production since 1977 has been

even greater than the loss that occurred between 1970

and 1977 which Congress sought to reverse through the

*Legis. Hist. at 192-193.

1-7

Clean Air Act Amendments of 1977. By limiting the focus

of its review much too narrowly, and by substituting its

judgment for that of EPA, the court below has dealt this

already struggling industry a crushing blow squarely in

conflict with plainly expressed Congressional intent.

IV. CONCLUSION

For this reason, and those set forth in the Petition

of Alabama Power Co., et. al., and the response of Kenne-

cott, amicus curiae Ohio Mining and Reclamation As-

sociation respectfully urges the Court to grant certiorari

and reverse the decision of the court of appeals.

Respectfully submitted,

Rosert L. BRUBAKER

(Counsel of Record)

C. LurHer HECKMAN

Rosert W. TRAFFORD

Porter, WRIGHT, Morris & ARTHUR

37 West Broad Street

Columbus, Ohio 43215-4171

(614) 227-2000

May 30, 1984 Counsel for Amicus Curiae

Ohio Mining and Reclamation

Association