Amicus Curiae Brief — Alaska Dept. of Environmental Conservation v. EPA

IN THE | OUNEE4F WHE CLERK

Supreme Court of the United States

STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL

CONSERVATION,

Petitioner,

V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET

AL.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF

THE NATIONAL ENVIRONMENTAL

DEVELOPMENT ASSOCIATION, THE AMERICAN

PETROLEUM INSTITUTE, THE AMERICAN

CHEMISTRY COUNCIL, THE AMERICAN FOREST

& PAPER ASSOCIATION, AND THE CORPORATE

ENVIRONMENTAL ENFORCEMENT COUNCIL

IN SUPPORT OF PETITIONER

JANET PITTERLE HOLT*

738 West Glebe Road

Alexandria, VA 22305

. (703) 684-6102

* Counsel of Record Counsel for Amici Curiae

\

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

~

TABLE OF CONTENTS

CERTAINTY IS A CRITICAL COMPONENT OF

THE NSR PERMITTING PROCESS. ................0000005. 5

B. Permit Applicants Make Significant

Financial and Manpower Investments in the

Development of BACT Determinations. ................... 8

C. The Significant Investment by Permit

Applicants in the Negotiation Process is

Premised on the Authority of the State

Permitting Authority and the Finality of its

i sccscibinil i)

. Finality is Critical to Permit Applicants

Because of the Significant Capital

cease deniinmaniliannioonsion 11

. STATE IMPLEMENTATION PLANS PROVIDE

PROCEDURES FOR EPA TO PARTICIPATE IN

THE PERMITTING PROCESS, AND THOSE

PROCEDURES CONTAIN ADEQUATE

SAFEGUARDS FOR EPA

TABLE OF CONTENTS—Continued

B. EPA Should be Required to Utilize

Available Administrative Review Processes,

Including Judicial Review of a State

Permitting Decision, Rather than Issuing

Unilateral Post Hoc Enforcement Orders

CONCLUSION

COOP O OO SOO HOES OOEEHO ESTEE SOOO EEEOEE SEES ES EOS EEOEEE ESSE OSES ESESEOS

TABLE OF AUTHORITIES

Page

CASES:

Alaska v. EPA, 298 F.3d 814 (9th Cir. 2002)... 4

United States v. AM General Corp., 34 F.3d 472 (7th Cir. ‘i

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United States v. Murphy Oil USA, 143 F Supp.2d 1054

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STATUTES.

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EE IED cnccccccecescccossessesceccsccesccsccesecssscsccssccsecosocssoess 10

Allnatice Stat. § 46.14.20 .........cccccceccrccsscsssssscsssesseenseeeseeesssseenes 15

Alaska Admin. Code § 50.315 ...0............cccescseeens 9, 13, 14, 15

OTHER AUTHORITIES:

EPA, New Source Review: Report to the President ;

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IN THE

Supreme Court of the Anited States

No. 02-658

STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL

CONSERVATION,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET

AL.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF

THE NATIONAL ENVIRONMENTAL

DEVELOPMENT ASSOCIATION, THE AMERICAN

PETROLEUM INSTITUTE, THE AMERICAN

CHEMISTRY COUNCIL, THE AMERICAN FOREST

& PAPER ASSOCIATION AND THE CORPORATE

ENVIRONMENTAL ENFORCEMENT COUNCIL

All parties consent to the filing of this brief.

' No party or its counsel authored this brief in whole or in part nor

made a monetary contribution to amici for the preparation or

submission of it.

2

STATEMENT OF INTEREST

OF AMICI CURIAE

Amicus curiae are trade associations that represent a

significant cross-section of industry whose members apply

for and receive many air pollution control permits each year

— including Prevention of Significant Deterioration (PSD)

and other New Source Review (NSR) permits. For this

reason, amici curiae are uniquely qualified to offer insights

to the Court on this complicated program.

Amicus curiae the National Environmental Development

Association’s Clean Air Regulatory Project (NEDA/CARP)

is a coalition of manufacturing companies that represent

major industrial sectors, including primary and secondary

aluminum, aerospace, automobile manufacturing, natural

resource exploration, refining and petrochemicals,

pharmaceuticals, electronics, and home products.

NEDA/CARP was formed in 1979, shortly after enactment of

the 1977 Clean Air Act Amendments that codified PSD

permitting requirements, to address Clean Air Act regulations

and Environmental Protection Agency (EPA) guidance that

affects the contents of PSD, NSR and later, operating permits,

including requirements for construction of new sources like

“best available control technology” (BACT). NEDA/CARP's

members own and operate facilities that are major sources

under the Clean Air Act, and thus they must obtain NSR

permits when they build new major sources or seek to

construct major modifications at existing major sources.

Amicus curiae the Corporate Environmental Enforcement

Council (CEEC) is an organization of corporate counsel and

environmental management representing over 30 major

companies from a wide range of industrial sectors, including

metals, chemicals, pharmaceuticals, paper, oil refining and

natural resource exploration, aerospace, defense electronics

and shipbuilding, mining, food and home products. CEEC

focuses exclusively on civil and criminal environmental

3

enforcement and enforcement policy issues by providing a

forum for review and discussion of such issues and

developing constructive recommendations to executive and

legislative environmental enforcement policymakers. As an

amicus curiae in other cases, CEEC has presented its

perspective on the legal and policy implications of EPA

actions that substitute its enforcement judgments for the

judgments of states with federally delegated enforcement and

permitting authority. In addition, CEEC's members also own

and operate major sources regulated by the Clean Air Act's

NSR program, and spend substantial resources in researching,

preparing and negotiating BACT determinations for NSR

permits.

Amicus curiae the American Petroleum Institute (API) is a

national trade association with approximately 400 members

involved in all aspects of the oil and natural gas

industry. API members own and operate numerous facilities

in many states, including Alaska, that are subject to

permitting actions similar to the one at issue in this case.

Amicus curiae the American Chemistry Council (the

“Council”) is a nonprofit trade association whose member

companies represent more than 90 percent of the productive

capacity for basic industrial chemicals within the United

States. Council members apply the science of chemistry to

make innovative products and services that make people’s

lives better, healthier, and safer. The Council is committed

to improved environmental, health and safety performance

through Responsible Care®, common sense advocacy

designed to address major public policy issues, and health

and environmental research and product testing. The

Council’s 190 members represent 90% of the world’s

production of basic industrial chemicals. They spend more

than $12 billion each year on projects designed to protect

human health, safety and the environment.

Amicus curiae the American Forest & Paper Association

(AF&PA) is the national trade association representing the

4

forest products industry AF&PA has more than 120

member companies that grow, harvest, and process wood and

wood fiber and manufacture a wide variety of products

including pulp, paper, paperboard and wood products.

AF&PA's member companies produce more than 92% of the

nation's pulp, 78% of the nation's paper, 89% of the nation's

paperboard, 60% of the nation's dimensional lumber, and

85% of the nation's wood panel products. These member

companies operate hundreds of manufacturing facilities

covered by Clean Air Act permits and other

requirements. They must, therefore, make numerous BACT

determinations similar to the ones at issue in this proceeding.

SUMMARY OF ARGUMENT

Industry invests substantial resources to modify its

facilities and install pollution control equipment to protect

human health and the environment. The governmental

permitting decisions must be certain and final. The United

States Court of Appeals for the Ninth Circuit has undermined

these two critical objectives by its holding in Alaska v. EPA,

298 F.3d 814 (9th Cir. 2002). Permitting EPA to effectively

nullify state permitting decisions months or even years after

they are made will hinder or halt major capital projects

designed to benefit the economy and the environment. This

Court should conclude that Congress understood the need for

certainty and finality in the permitting process to allow

industry to make the significant capital investments to

comply with permitting programs and should protect the

integrity of state permitting decisions and the cooperative

a embodied in the relevant provisions of the Clean

ir Act.

5

ARGUMENT

I. CERTAINTY IS A CRITICAL COMPONENT OF

THE NSR PERMITTING PROCESS.

A. The NSR Permitting Process is Complex,

Time-consuming and Costly.

The New Source Review (NSR) program requires sources

that emit certain pollutants to obtain air pollution permits

prior to commencing construction of major new facilities or

significant modifications of existing facilities. In areas

where the air quality already meets the national ambient air

quality standards (NAAQS) (ie., attainment areas), an

applicant triggers the NSR Prevention of Significant

Deterioration (PSD) requirements, including a commitment

to use the “best available control technology” (BACT) on the

unit it is constructing or modifying. In areas where the air

quality exceeds a NAAQS (i.e., nonatiainment areas), an

applicant triggers the NSR nonattainment requirements

including application of the Lowest Achievable Emission

Rate (LAER). The BACT or LAER determination is often

the most critical determination that is made at the time an

NSR permit is issued by a state permitting authority (or by

the EPA region if the state does not have an approved NSR

permit program as part of its State Implementation Plan

(SIP)).

The process used to determine BACT for a new or

modified emission unit is a complex one. For example, in

October 1990, EPA released a draft New Source Review

Workshop Manual, Cert. Rec. 71-001 to 71-343, which inter

alia, contains 75 pages of guidance on conducting a BACT

analysis. There is no “correct” answer in the BACT

determinatién process. Instead, the BACT analysis is done

on a ase-by-case” basis, and involves a weighing of a

6

number of factors including energy, environmental and

economic impacts and other costs. 42 U.S.C. § 7479(3). The

“top-down” method recommended (but not required) by EPA

in the Draft New Source Review Workshop Manual for

determining BACT ranks available control technologies in

order of control effectiveness. The method consists of five

detailed analyses: identification of available control

technologies, elimination of technically infeasible options,

ranking of control technologies by control effectiveness,

evaluation of most effective controls and documentation of

results and the selection of BACT. Cert. Rec. 71-089 to 71-

093.

In its Draft NSR Workshop Manual, EPA repeatedly

recognizes that numerous subjective judgments must be

made in each and every step of the BACT analysis. Indeed,

the Draft New Source Review Workshop Manual is replete

with references to the exercise of “judgment” by the

applicant and the reviewing authority.”

In conducting a BACT analysis, complex technical issues

relating to the appropriate emission factors for different

controls, accurate cost estimates of different controls (both

2 See, e.g., Draft New Source Review Manual at B.13, Cert. Rec.

71-097 (However, there may be instances where, in the permit

authority’s judgment, the consideration of alternative production

processes is warranted and appropriate for consideration in the

BACT analysis), B.19, Cert. Rec. 71-103 (“Technical judgment on

the part of the applicant and the review authority is to be exercised

in determining whether a control alternative is applicable to the

source type under consideration), B.20, Cert. Rec. 71-104

(“Consequently, judgment should be used in deciding what

alternatives will be evaluated in detail in the impacts analysis (Step

4) of the top-down procedure discussed in a later section”), B.24,

Cert. Rec. 71-108 (“Consequently, in assessing the capability of

the control alternative, latitude exists to consider any special

circymstances pertinent to the specific source under review, or

regarding the prior application of the control alternative”).

7

installation and annual operation), and the practicality of

certain control strategies can arise at every turn. Reasonable

minds can disagree on these issues at every stage of the

BACT analysis; as a result, the final BACT determination is

often the result of the exchange of research, discussion,

negotiation and cooperation between the permit applicant and

the state permitting authority.

The NSR permitting process conducted by the state,

including the BACT analysis, can take more than two years.

Many SIPs provide for a 30-day completeness review, a 60-

day technical review, a 30-day comment period and a 30-day

period for a public hearing. In some instances, the 30-day

completeness review re-starts if deficiencies must be

addressed. In its Report to the President on New Source

Review, EPA reported that permitting typically takes from 7

to 22 months. EPA, New Source Review: Report to the

President at 31 (2002). In fact, the State of Alaska spent 18

months reviewing and analyzing the NSR permit application

in this case.

Indeed, the entire process of making modifications to an

existing source is a lengthy one. For example, the following

chart sets forth the timeframe associated with a significant

modification to a major refinery; the total time is five to

seven years, including 1.5 years for basic process design and

1.5 to 2 years for the permitting process.

Action General Time Range

Scoping/screening studies _‘1.5 years

Basic process design 1.5 years (0.5 overlap with

with scoping studies)

Permitting 1.5 to 2 years (0.75 overlap

with process design phase)

Detailed engineering 1.25 to 1.5 years (0.75 to |

overlap with permitting and

design phase)

Construction 1.5 to 2 years (0.5 overlap with

detailed engineering phase)

Startup-up/shakedown 0.5 to 1 year

Total of 5 to 7 years

Even in the best of circumstances, the refinery modification

process takes five to seven years. Obtaining a major NSR air

permit, which is an integral part of the modification process,

can take two or more years, particularly if pre-construction

modeling is needed to assure the attainment status of the area.

While this example is from the oil and natural gas industry,

securing a major NSR air permit is a complex and lengthy

process for any facility, regardless of industry sector.

B. Permit Applicants Make Significant Financial

and Manpower Investments in the Development

of BACT Determinations.

The process of obtaining an NSR permit is a costly one as

well. The entire air permitting process can cost as much as

$500,000. In particular, the analysis of BACT frequently

requires the retention of independent environmental and

engineering professionals, and entails lengthy periods of

9 —_

discussion and often negotiations with state permitting

authorities before a BACT determination is formally made by

the state permitting authority. Often the engineering and

design move forward hand in hand with informal discussions

with state permitting authorities and may not be finished until

the question of BACT is resolved.

The BACT process involves frequent communication and

correspondence and extensive negotiations between the

permit applicant and the state permitting authority, often

resulting in concessions by the permit applicant. When the

state permitting authority has made its preliminary BACT

determination, the typical SIP provides for a public comment

period for the proposed permit. See, e.g., Alaska Admin.

Code § 50.315. At the conclusion of the public comment

period and upon issuance of the permit, most SIPs also

contain a provision authorizing persons to request a hearing

on the permit as issued, and to seek judicial review of a final

permitting agency’s decision. /d. Thus, the process involves

a significant investment by the applicant in time, money and

manpower to work through the NRS permitting process.

C. The Significant Investment by Permit

Applicants in the Negotiation Process is

Premised on the Authority of the State

Permitting Authority and the Finality of its

Determination.

As set forth above, permit applicants invest significant time

and resources in the BACT determination process.

Accordingly, as even EPA recognizes, > applicants need

reasonable certainty in the BACT determination process.

3 For , in its 1990 Draft New Source Review Workshop

Manual, EPA emer A applicants to discuss the judgments

are making as to which alternatives will be evaluated with the

reviewing authority in the pre-application meeting. Draft New

Source Review Workshop Manual at B.21, Cert. Rec. 71-105.

10

However, there is little incentive to participate in

meaningful discussions with a state permitting authority and

to make meaningful concessions if EPA can choose not to

participate in the state permitting process yet exercise post-

permit issuance ultimate veto authority over the state

permitting decision. With a potential EPA veto hanging over

permit applicants’ heads for years as well as potential

substantial Clean Air Act penalties,‘ applicants will have

little incentive to work with the states or to make significant

concessions. The erosion of the state permitting authorities’

ability to work with applicants in approving BACT

determinations will make it increasingly difficult for states to

run efficient- and environmentally protective air permitting

programs.

If EPA can simply ignore a state permitting authority’s

NSR_ permitting decision made in accordance with

procedures adopted by the state and incorporated into the

EPA-approved SIP, and issue an enforcement order to

overturn that decision, regulated entities will be forced to

request that EPA “pre-approve” any and all NSR permits to

eliminate that possibility. This not only undermines the

responsibility and credibility of the state permitting authority,

it also encroaches on federalism and the federal-state

relationship in SIP-approved states. Finally, given its finite

resources, EPA is not likely to be in a position to consider

meaningfully all such requests, and certainly not in a timely

fashion.

At the same time, states will find it more and more difficult

to negotiate BACT determinations because they will not be

According to EPA, “In this way, the applicant can be better

assured that the analysis to be conducted will meet BACT

requirements.” Id.

* The Clean Air Act provides for penalties of up to $27,500 per

day for each violation as well as other noncompliance and criminal

penalties. 42 U.S.C. §§ 7413(c) and (e), 7420.

7

11

able to provide the needed certainty to permit applicants. As

a result, industry will find its ability to make investments and

modify its facilities in response to changing market

conditions severely hampered. The bottom line is that permit

applicants will be reluctant to invest time and money in

working with the state permitting authority in the absence of

certainty with respect to the final air permit.

D. ae is Critical to Permit Applicants Because

of the Significant Capital Investment in BACT.

If regulated entities cannot be certain whether a permit

decision is truly final, they will be unable to rely on their

dealings with state officials. This in turn will have a chilling

effect on capital projects and interfere with the ability of the

regulated community to plan and make investments in their

facilities.

The pollution control technology representing BACT can

result in the expenditure of millions of dollars in both capital

costs and operational and maintenance costs. For example,

the capital investment in BACT for a large industrial boiler

can run between $1 million and $20 million. If there is

uncertainty as to the appropriate (and lawful) BACT control

strategy, the potential additional costs associated with that

uncertainty could cause an owner or operator to decide

against making that capital investment.

By way of example, if EPA were to issue an enforcement

order requiring additional controls after a permittee had

ordered or installed control equipment required by the state-

issued permit, the additional costs to be incurred by the

permittee are compounded because change orders are

extremely expensive. For instance, for some equipment, ultra

Cow-NOx combustors are frequently approved as BACT.

However, if EPA later announced its belief that Selective

Non-Catalytic Reduction (SNCR) (an expensive and

12

controversial control that raises other issues) was BACT for a

particular project, depending on design and size, the

additional cost of the new equipment alone could add 65% to

100% to the NOx control cost or 15% to 30% to the total

project cost for installation of an industrial boiler. If SNCR

controls must be added after equipment construction has

begun, or after the installation is complete, the total project

cost could be further increased by 15% to 30% or more.

For projects near the economic viability threshold, these

added costs might destroy the economics of the expansion or

modernization project. Meaningful facility upgrades and

environmentally beneficial improvements could be scr.

if the projects would not be economical in light of the risk of

increased costs due to late EPA veto of the BACT

determination - even though such costs might never actually

materialize.

Industry simply cannot proceed with major capital projects

if there is no finality to permitting decisions and capital costs

cannot be determined with the necessary accuracy. Indeed, if

state permitting decisions are overturned by EPA years after

the equipment has been installed, the costs to the source - - in

new equipment and/or penalties or fines - - would be

staggering. This lack of finality in the air permitting process

would significantly deter or even halt investments in facility

improvements that provide increased productivity, efficiency

and environmental benefits.

The economic harm to an owner or operator due to a “late

hit” from EPA must also be measured in lost productivity

and profits. If the owner or operator receives an enforcement

order from EPA that stops it from completing construction of

a production unit, or the operation of a completed production

unit, the cost to the owner or operator in terms of lost

productivity could be crippling. For example, a typical 1000

ton per day pulp and paper mill receives a revenue stream of

approximately $600 to $900 per ton or $600,000 to $900,000

per day. If forced to shut down a unit in operation, the lost

ae

13

revenue to such a mill could approach $1 million per day.

Similarly, to close or delay a new pharmaceutical production

process could mean lost revenues of $1 million per day. In

such circumstances, the shutdown may extend for months or

years

Thus, applicants will be left in limbo if EPA regional

offices can choose to retain post hoc veto authority through

their enforcement powers months or even years later.

Moreover, the mere uncertainty as to whether EPA will step

in later to override the state permitting authority’s decision

will hinder significant capital projects and impede economic

growth. Accordingly, this Court should not permit EPA to

upset industry's settled and reasonable expectations with

respect to the BACT determination process by subjecting

industry to a regulatory environment fraught with

enforcement uncertainty.

ll. STATE IMPLEMENTATION PLANS PROVIDE

PROCEDURES FOR EPA TO PARTICIPATE IN

THE PERMITTING PROCESS, AND THOSE

PROCEDURES CONTAIN ADEQUATE

SAFEGUARDS FOR EPA.

A. State Implementation Plans, Which are

A ed by EPA, Provide Adequate

Sa rds to Ensure EPA Input into

Permitting Decisions.

The permitting procedures built into SIPs, including those

that provide for a public comment process, provide ample

opportunity for EPA to participate in the permitting process.

See, eg, Alaska Admin. Code § 50315; 42 USC.

§7545(a)(2). Thus, EPA has a built-in mechanism to use if it

believes that a state’s conclusions regarding BACT are

incorrect. The state permitting agency must consider all

14

comments made, including those made by EPA challenging a

BACT determination, in issuing a final NSR permit. Alaska

Admin. Code § 50.315. As a practical matter state permitting

authorities give significant weight to timely comments

provided by EPA.

Industry does not object to EPA weighing in on state

permitting decisions, but such participation should take place

in a timely fashion and within the confines of the permitting

process as set forth in the EPA-approved SIP. What is

critical to industry is that at the end of the lengthy and costly

state permitting process, the source has a permit in hand that

defines its obligations once and for all. Once a permit is

issued by the state, the source must be able to rely upon it.

With clear and final direction from the state permitting

authority, the source can proceed with its project free of the

uncertainty that is present if EPA retains the authority to

issue a post hoc enforcement order vetoing the state

permitting decision.

B. EPA Should Be uired to Utilize Available

Administrative os Processes, Including

Judicial Review of a a Decision,

Rather than Issuing Unilateral Hoc

Enforcement Orders

In circumstances where EPA disagrees with a state’s

BACT determination, that disagreement is properly viewed

as a prograin administration dispute between the two

sovereigns. In that instance, the CAA and the EPA-approved

_SIP provide a mechanism for resolution of that dispute -

EPA may participate in the public comment process and,

where its comments are not addressed to its satisfaction,

further challenge the state’s decision through the state

administrative and judicial appeal process, applying the

applicable rules contained in the SIP. In the case at bar, the

Alaska administrative process provides the opportunity for

15

EPA to participate in the public comment process, to request

an adjudicatory hearing on the permit decision, and

ultimately to seek judicial review of Petitioner’s permit

decision. Alaska Admin. Code § 50.315; Alaska Stat. §

46.14.200.

Both the Court of Appeals for the Seventh Circuit and the

District Court for the Western District of Wisconsin have

addressed the issue of whether EPA can mount a collateral

attack on a state permit decision by bringing an enforcement

action against the party that was issued the Clean Air Act

permit and was in compliance with that permit, where the

EPA did not appeal the issuance of the permit. In U.S. v. AM

General Corp., 34 F.3d 472 (7 Cir. 1994), the Seventh

Circuit dismissed an enforcement action brought by EPA,

pursuant to Section 113(a)(5) and 113(b)(3),> on the grounds

that EPA did not appeal issuance of the permit pursuant to

the applicable provisions of the applicable county and state

review procedures, including obtaining review in state court.

AM General, 34 F.3d at 474-475. In U.S. v. Murphy Oil USA,

Inc., 143 F Supp.2d 1054 (W.D. Wis. 2001), the District

Court cited to the Seventh Circuit’s opinion in AM General

and held that where a valid permit was issued by the state

agency, EPA could not seek review of the validly issued

permit in the context of an enforcement action — it must

challenge the issuance of the permit pursuant to the

applicable state provisions regarding challenges to state

permitting decisions. Applying the logic of these cases, EPA

should have expressed its views in the state permitting

process and pursued its disagreement with Petitioner's BACT

determination through a challenge to the permit issued by the

Petitioner, pursuant to the procedures set forth in the Alaska

Statutes and code cited above.

> The Seventh Circuit noted that the statutory sections cited by

EPA in AM General Corp. were amended in 1990, but that the

that

amendments did not scem pertinent to the issue decided by

court.

16

It is patently unfair (especially in light of the staggering

cosis outlined above) to use the regulated entity as a pawn in

the resolution of a dispute among sovereigns, as occurred in

the instant case. It is particularly egregious for EPA to do so

by issuing an enforcement order to the permit applicant that

had followed all applicable procedural and substantive

permitting requirements, when EPA failed to follow the

administrative process that EPA itself approved as part of the

Alaska SIP. Finally, the course of action chosen by EPA also

threatens to completely undermine the credibility of state

permitting processes and the administrative processes

established by states to provide for review of permitting

decisions. See Brief of Amici Curiae States of North Dakota,

Wyoming, Alabama, Delaware, lowa, Montana, Nebraska,

Nevada, South Dakota and Utah in Support of Petitioner’s

Petition For Writ Of Certiorari, pp. 11-12.

CONCLUSION

For the forgoing reasons, the judgment below should be

reversed.

Respectfully submitted,

JANET PITTERLE HOLT*

738 West Glebe Road

Alexandria, VA 22305

(703) 684-6102

* Counsel of Record Counsel for Amici Curiae