Amicus Curiae Brief — Big Rivers Electric Corp. v. Environmental Protection Agency (Nos. 75-7787, 75-7744)

ee,

=*

b

= ‘

SER

a

es

EG ETM IE ALOT A DECC was

(Aaa Alan onsen

Siyterme Court, U. He

FILED ;

No. 75-774 | JAN 16 1976

ee {

;

- )

roe, Poy, JR, CLK :

ies MEWS, pitrnenme Deis shane j

IN TILE h

Supreme Court of the United States :

Ocroben Trea, 1974

Big Riveus Eneerige Cornvorarion J

KENTUCKY Powrhk COMPANY and

Kenreoky Uris CoMPpany,

Petitions rs, i

;

ISNVIRONMENTAL PRrorreerTion AGENCY, :

Riessens. Kb. Train, ANdiminietrator, fi

Te sponds yl,

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE FOR THE BAY AREA

LEAGUE OF INDUSTRIAL ASSOCIATIONS, INC. /

Joun TT. Ronan, TE

Tuxedo, New York VOUS7T

HW. Kowsarp DUN Ke LBeROorR Bi

Threoporre -. Gane

Covington & BURLING

SBS Sictoonth Street. N.W,

Woashineton. Db ¢ MMM,

Lllorwaus ‘iy tii cis iyodele

APE 107)

—-)

TABLE OF CONTENTS

Page

mntoront OF Amees OMRINO. 66 kc cacascccvrsvescceens 1

Reasons For Granting The Writ ...........eeeeeee0e 2

I. The Issues Raised By The Decision Below

Are Of Continuing And Overriding Impor-

tance Concerning The Implementation Of

Se CON BOE eh ceceererseebaeneess 2

II. The Decision Of The Court Of Appeals

Below Restricts The Rights Of The States,

Recognized By This Court In Train v.

NRDC, To Adopt A Wide Range Of Emis-

sion Controls Provided That Such Controls

Are Effective To Meet National Standards 5

III. The Court of Appeals Below Has Misread

The Decision Of This Court In Train v.

NRDC And Has Misconstrued The Defini-

tion Of ‘Emission Limitation’? Under See-

tion 110(a)(2)(B) Of The Clean Air Act .. 7

ee PE Re ee PORTS Bene hI Mie Ne a hd Oe 10

TABLE OF AUTHORITIES

CASES:

Big Rivers Electrie Corp. v. EPA, 523 F.2d 16 (6th

tS Re Pe neee Fe Seman AINA ey 3, 8

NRDC vy. EPA, 489 F.2d 390 (Sth Cir. 1974), rev’d sub.

nom, Train v. NRDC, 421 U.S. 60 (1975) ........ 5-9

STaTuTORY PRovIsIONs:

Clean Air Act, As Amended

42 U.S.C. § 1857¢-5(a)(2)(B) (1970) ........3,5,8,9

Be UW OAn Cee FINO ivkceccsccreccsdvecss s

OP We. BROT TAO ok pecans cicracexdceos .

REGULATIONS:

40 Fed. Reg. 4445 (1975) ........cccccscsccccccdy hy ty?

Be Sra FOUND CEOTOD iis dav adewsns codesweecenns s

40 C.F.R. § 52.238 (1975)

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No. 75-774

Bia Rivers Evecrric CorroratTion

KENTUCKY PowER CoMPANY and

Kentucky UTinities Company,

Petitioners,

Us

ENVIRONMENTAL PROTECTION AGENCY,

Russet. E. Tram, Administrator,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE FOR THE BAY AREA

LEAGUE OF INDUSTRIAL ASSOCIATIONS, INC.

INTEREST OF AMICUS CURIAE

The Bay Area League of Industrial Associations,

Ine. submits this brief in support of petitioners Big

Rivers et al. Both petitioners and respondent Envir-

onmental Protection Agency have consented to the

filing of this brief amicus by letters which have been

POOR COPY

BLEED THROUGH

eee

eee a

rab chet di eee ANA SOS OREM eae

OOD SAS

Satie

ey phe catt

2

presented to the Clerk of the Court pursuant to Rule

42(2).

The Bay Area League of Industrial Associations,

Ine. (** BALTA”’’) is an incorporated league of indus-

trial corporations with manufacturing facilities located

in the San Francisco Bay area. BALIA is a party to

rulemaking in which the EPA has proposed formally

to disapprove certain provisions in the Bay Area im-

plementation plan solely on the grounds that it per-

mitted ground level monitoring controls, based upon

the same rationale as the agency’s disapproval of the

Kentucky regulation involved in this ease. It is re-

spectfully submitted that the decision below raises im-

portant questions concerning the implementation of the

Clean Air Act which will have far reaching impact upon

amicus curiae, its members, and other industries simi-

larly situated.

REASONS FOR GRANTING THE WRIT

The granting of the petition for a writ of certiorari

in this case is supported by several grounds that are

traditionally deemed by this Court to warrant plenary

review.

I. The Issues Raised by the Decision Below Are of Continuing

and Overriding Importance Concerning the Implementation

of the Clean Air Act

The petitioners have pointed to the significant econo-

mic impact which would be borne by consumers of

electric power if the states were required in all cases

to enforce Guly certain types of emission control re-

gulations—‘constant emission controls’’—and were

not permitted to adopted the combination of air pollu-

tion regulations best suited to their particular situa-

3

tion which would meet the national air quality stand-

ards. The impact of the decision below, however,

would be felt beyond the electric power industry to the

extent that it stands as precedent for the disapproval

of all ground level monitoring emission controls as

per se invalid under Section 110(a)(2)(B) of the

Clean Air Act, even where such controls are demonstr-

ably effective to reduce or limit air pollution emissions

to attain and maintain national air quality standards.

Illustrative of the kind of effective ground level

monitoring control which might be held invalid if the

decision below were permitted to stand is San Fran-

cisco Bay Area BAAPCD Regulation 2, which the

EPA has proposed retroactively to disapprove. 40

Fed. Reg. 4445 (January 30, 1975). This regulation

permits industrial sources to employ certain types of

ground leye] monitoring controls which limit emissions

at all times to meet a 24-hour ground level standard

which is more than three times more stringent than the

EPA national air quality standard. Where this

ground level standard is exceeded by an industrial

source, emission control devices are required to limit

emissions to meet the standard. In contrast with the

intermittent control systems permitted under the Ken-

tucky regulation disapproved in the decision below,

emission rates under BAAPCD Regulation 2 are not

adjusted upward or downward to meet changes in

meteorological conditions. Rather, emissions are

limited at all times to a level sufficient to meet the

stringent BAAPCD standard under the worst predict-

able meteorological conditions .

The EPA national air quality standards for sulfur

dioxide were attained in the San Francisco Bay Area

as of May 31, 1972, the date that EPA approved the

POOR COPY

EED THROUGH

win ddarnienalt roost Dubai Wea Gehan

t

California State implementation plan. 40 C.F.R.

§ 52.238. Computer modeling simulations and actual

monitoring data submitted to EPA by amicus curiae

demonstrate that the national standards have been

maintained since that date and will continue to be main-

tained in the future by a substantial margin . These

data further demonstrate that since May 31, 1972, en-

forcement of BAAPCD Regulation 2 has effected a

substantial reduction in the sulfur dioxide emissions

in the San Francisco Bay Area, and has improved air

quality beyond that required under the EPA national

standards. Further, very substantial additional re-

ductions of emissions are scheduled in 1976. Millions

of dollars have been spent since May 31, 1972, by San

Francisco Bay Area industry to meet the requirements

of BAAPCD Regulation 2.

The proposed retroactive disapproval by EPA of

BAAPCD Regulation 2 is based solely on the fact that

it provides ground level monitoring controls as an op-

tion. As stated by the Administrator in his notice of

proposed rulemaking:

‘Regulations which contain an emission limita-

tion but which permit compliance with ambient

air limitations as an option to compliance with the

emission limitation are not approvable.’’ 40 Fed.

Reg. at 4446.

If the BAAPCD Regulation 2 ground level monitor-

ing control option is disapproved, the various industry

members of BALIA will be required to spend addi-

tional millions of dollars for the further abatement of

sulfur dioxide emissions although such additional ex-

penditure would not be necessary to maintain the na-

tional air quality standards.

5)

This case has an importance beyond that of amicus

curiae and its members, significant as that is. In its

January 30, 1975, announcement proposing disap-

| proval of BAAPCD Regulation 2, EPA made it clear

that the agency would be taking further action to dis-

approve all state plans which contain optional control

features. 40 Fed. Reg. at 4446. The decision below

thus involves a question of continuing importance

under the Clean Air Act which should be reviewed by

this Court.

II. The Decision of the Court of Appeals Below Restricts the

Rights of the States, Recognized by This Court in Train

v. NRDC, To Adopt a Wide Range of Emission Controls

Provided that Such Controls Are Effective To Meet Na-

tional Standards

The decision below is inconsistent with Congressional

policy and misreads this Court’s decision in Train v.

NRDC, 421 U.S. 60 (1975), in that it sustains the

Iv PA’s disapproval of the Kentucky air pollution regu-

lation without regard to the effectiveness of the control

systems permitted under the Kentucky regulation to

reduce or limit air contaminant emissions to attain and

maintain national air quality standards.’

Section 110(a)(2)(B) of the Clean Air Act, 42

U.S.C. § 1857¢-5(a)(2)(B), provides that the EPA

“The portion [of the Kentucky regulations] which was disap-

| proved provided as follows:

‘**Where is it demonstrated . .. that an air contaminant

source can apply an alternative control strategy which will

provide for achicvement and maintenance of applicable air

quality standards, the Commission may . . . authorize such

control strategy ....’’’ 523 F.2d at 18 (emphasis added).

The Kentucky regulation thus required that an applicable al-

ternative contral strategy must be effective to attain and maintain

national standards.

POOR COPY

3LEED THROUGH

ee

ry

pid abuadiy

TAS wtite: eae

Wh aaa A

wb a A Ay iat + aah Way “Sad Bcd:

EDAD DAG. MR OS

|

6

Administrator must determine whether a state imple-

mentation plan ‘‘includes emission limitations ... and

such other measures as may be necessary to insure

attainment and maintenance of such primary or sec-

ondary standard.”” In Train v. NRDC, 421 U.S. 60

(1975), this Court affirmed the right of a state to adopt

‘‘whatever mix of emission limitations’’ it deems best

suited to its particular situation ‘*so long as the ulti-

mate effect of a State’s choice of emission limitations

is compliance with the national standards for ambient

air....’’ 421 U.S. at 79. This Court’s decision in

Train, therefore, mandates EPA approval of state regu-

lations where they are demonstrably effective for the

timely attainment and subsequent maintenance of am-

bient air standards.

The Train decision not only permits maximum flexi-

bility in the kind and mix of control regulations a

state may adopt, but, as well, makes it clear that an

approvable control strategy may provide that an indivi-

dual source or group of sources may be completely ex-

cepted from the plan. 421 U.S. at 93-94, n. 28. It is

within the states’s discretion to determine which

sources will be restricted as a part of its mix of emission

limitations, provided that this mix is sufficient to attain

and maintain national standards. <As indicated in the

Train decision, whether or not a specific source or group

of sources is controlled by the state’s emission limita-

tion mix is not a basis for EPA disapproval of the

implementation plan provision.

Further, EPA’s emphasis on ‘‘constant emission

controls”’ is also directly contrary to this Court’s ad-

monition in Train against ‘‘forcing”’ the use of techno-

logy. The agency’s position, as set forth in its proposed

disapproval of the Bay Area regulations, is that ‘‘con-

7

stant emission controls’’ must be applied ‘‘wherever

technology is available.’”? 40 Reg. 4446. This aspect

of EPA’s legal position was totally rejected by this

Court in Train:

‘* [S]o long as the national standards are being

attained and maintained, there is no basis in the

present Clean Air Act for forcing further techno-

logical developments.’’ 421 U.S. at 91.

The Clean Air Act as interpreted by this Court in the

Train decision permits the states to adopt and enforce

a wide spectrum of types of emission controls provided

that they are demonstrably effective to reduce or limit

emissions to maintain and attain national air quality

standards.

III. The Court of Appeals Below Has Misread the Decision of

This Court in Train v. NRDC and Has Misconstrued the

Definition of “Emission Limitation” Under Section 110(a)

(2)(B) of the Clean Air Act

The Court of Appeals below misconstrued the opinon

of this Court in the Train decision to justify the per se

disapproval of certain classes of emission controls with-

out inquiry into their effectiveness to meet national

standards. In Train v. NRDC, 421 U.S. 60, 78 (1975),

this Court referred to the term ‘‘emission limitations”’

broadly as:

** [Regulations of the composition of substances

emitted into ambient air from [pollution] sources

They are the 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.”’

Although this Court did not elaborate further on this

point, since it was not an issue in that case, the court

POOR COPY

3LEED THROUGH

MG Wd eek a ipa ee

8

below seized upon the single term ‘‘composition’’ in the

foregoing quote, and redefined an ‘‘emission limita-

tion’’ under Section 110(a)(2)(B) of the Act as

‘“*TA] rule or regulation pertaining to sulfur

dioxide or any other contaminant would quality

as an emission limitation only if it regulates the

amount of that kind of material which may be

included in the emission from a given source.”’

523 F. 2d at 21-22.

The court then leaped to the conclusion that only a

constant emission control device on all sources would

satisfy this definition.

The decision below is not supported by this Court’s

opinion in Train, and is contrary to the mandate of

Congress. Section 110(a)(2)(B) of the Act refers to

‘‘emission limitations and such other measures’’ and is

not confined to constant emission controls. EPA’s state

plan regulations by their own terms permit great flexi-

bility to the states in the kind and mix of pollution

control regulations which they may adopt, collectively

termed a ‘‘control strategy’’:

‘* *Control strategy’ means a combination of meas-

ures designed to achieve the aggregate reduction

of emissions necessary for attainment and main-

tenance of a national standard....’’ 40 C.F.R.

§51(n).

Further, EPA’s interpretation of ‘‘emission limita- -

tions’’ is inconsistent with Congress’ careful use of

the term ‘‘emission standard”’ in other provisions of

the Act—such as Sections 111 and 112—to refer to

constant emission controls. 42 U.S.C. §§ 1857c-6,

1857¢-7.

9

Finally, it is noteworthy that the decision of the

Court of Appeals in NRDC v. EPA, 489 F.2d 390 (5th

Cir. 1974), reversed on other grounds sub nom Train v.

NRDC, 421 U.S. 60 (1975), upon which the decision

below relies, does not go so far as to require ‘‘constant

emission controls.’’ The distinction between ‘‘constant

emission controls,” 7.e., ‘‘emission standards,’’ and the

broader elass of permissible ‘‘emission limitations’’

which may serve to indirectly limit the amount of emis-

sions was clarified by the Fifth Circuit as follows:

“‘TT]t is necessary to... define different categories

of the kinds of ‘enforceable controls’ which may

be employed to affect attainment of ambient air

standards. The first, ‘emission standards’ refers

to standards setting specific quantitative limits on

the amounts given individual sources may emit into

the air. The second, ‘emission limitations’ [as

defined in Section 110(a)(2)(B) of the Clean Air

Act], is an inclusive term referring to any type

of control to reduce the amount of emissions into

the air. This includes, of course, ‘emission stand-

ards’, but also ineludes a number of regulatory

devices. These range from regulations directing

sources of emissions to cease or curtail operations

to regulations specifving the sulfur content of fuel

that fuel-burning emission sourees may burn;

‘transportation controls’ designed to reduce the

use of motor vehicles . . . and the imposition of

emission charges or other economie incentives

aimed at inducing parties to reduce their emissions

voluntarily.”’ 489 F.2d at 394, n.2 (emphasis

added).

In short, the decision below which mandates constant

emission controls is based upon a reading of the Act

which is without basis in the statutory language, EPA’s

own regulations, or judicial decisions.

POOR COPY

BLEED THROUGH

10

CONCLUSION

It is respectfully submitted that the decision below

was erroneous on questions of great importance to

amicus curiae and to other industries affected by state

implementation plans. Review by this Court is es-

sential.

Respectfully submitted,

Joun T. Ronan, III

Tuxedo, New York 10987

H. Epwarp DUNKELBERGER, JR.

THEODORE L. GARRETT

CovINGTon & BURLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Amicus Curiae

January 1976

ENT Se Ne TIRES Re id iG ie bgt Oeakdhy eatin RU SRS DROS ee at

POOR COPY

LEED THROUGH