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

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Supreme Court of the United States

OCTOBER TERM, 1975

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No. 75-774

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BIG RIVERS ELECTRIC CORPORATION,

KENTUCKY POWER COMPANY and

KENTUCKY UTILITIES COMPANY,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

RUSSELL E,. TRAIN, ADMINISTRATOR,

Respondents.

————>—_—_

REPLY BRIEF OF PETITIONERS

TO

BRIEF FOR THE FEDERAL RESPONDENTS

a a a

Wilson W. Snyder

300 Madison Avenue

P. O. Box 2088

Toledo, Ohio 43603

Attorney for Petitioners

Of Counsel:

A. Joseph Dowd

2 Broadway

New York, New York 10004

Interstate Brief & Record Co., 1036 Beaubien St., Detroit, Michigan 48226

962-8745 —962-8732

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

a

No. 75-774

——- ¢——.

BIG RIVERS ELECTRIC CORPORATION,

KENTUCKY POWER COMPANY and

KENTUCKY UTILITIES COMPANY,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

RUSSELL E, TRAIN, ADMINISTRATOR,

Respondents.

a

REPLY BRIEF OF PETITIONERS

TO

BRIEF FOR THE FEDERAL RESPONDENTS

ee

This reply brief of Petitioners is addressed to arguments

first raised in the Brief of the Federal Responcents in op-

position to the petition of Tennessee Valley Authority for

Certiorari (hereinafter referred to as “Respondents’

Brief”) which brief has been adopted by reference in the

brief of Respondents filed in this case.

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1. MOOTNESS IS NOT A QUESTION PRESENTED FOR

CONSIDERATION IN CONNECTION WITH THIS PETI-

TION FOR CERTIORARI

On pages 6 through 8 of Respondents’ Brief it is pointed

out that the Kentucky agency, prior to the hearing in the

Sixth Cireuit Court of Appeals, eliminated the alternate

control strategy provision which was disapproved by the

Federal Administrator from its regulations. Bou: Kentucky

and the Federal Respondents moved to dismiss the Petition

for Review, but the Appellate Court denied the motion

and decided the case on the merits.

Whether the Court of Appeals was right or wrong in its

decision on the mootness issue, mootness is not a question

presented for consideration in connection with this Peti-

tion for Certiorari. Petitioners do not contest the decision

on mootness and there has been no cross petition for cer-

tiorari on that issue. Irrespective of the correctness of the

decision on the mootness issue, that decision on the merits

decided important questions of federal law which will con-

tinue into the future to have a nationwide effect of great

social and economic importance. The only way that these

issues can be finally resolved is for the Supreme Court to

grant the Petition for Certiorari.

2. THE SIXTH CIRCUIT COURT OF APPEALS DECISION

IS NOT CORRECT ON THE MERITS.

Respondents argue that the Sixth Cireuit Court of Ap-

peals decision is correct on the merits and does not conflict

with any decision of this court or any court of appeals.

(Respondents’ Brief, p. 8). Petitioners assert that the

decision is not correct on the merits. Also, even though the

Supreme Court did not decide the issues involved in this

3

ease in Train v. NRDC, 421 U.S. 60 (1975), the legal prin-

ciples laid down in that case in regard to variances should

be applied to alternate control strategies such as were

authorized by the Kentucky Implementation Plan. Such

application would require that the Court of Appeals de-

cision be set aside. This correction can be made by the

granting of the writ.

a) It is Respondents’ position that every court that has

considered the language of Section 110(a)(2)(B) of the

Clean Air Act has construed it to require the use of all

available measures for continuous limitation of emissions.

(Respondents’ Brief, p. 9). The Fifth Circuit decision in

Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 489 F.2d 390 (Sth Cir. 1975) 1s cited as

one such case. Petitioners have pointed out (Petition, pp.

7-8) that only the variance portion of that case was ap-

pealed to the Supreme Court, and one of the purposes of

this petition for certiorari is to enable this court to com-

plete the picture by deciding the emission regulation as

well. If this court had applied the same legal doctrine

announced in Train v. NRDC, 421 U.S. 60 (1975) to the

second issue in the Fifth Cireuit case as it did to the

variance issue, the entire Fifth Circuit decision would have

been reversed. If the state has the right, as declared in

the Train case, to choose its own mix of emission limitations

to meet its particular situation, “so long as the ultimate

effect * * * is compliance with the national standards for

ambient air” (421 U.S. 60 at 79), then the emission limi-

tations in the Fifth Circuit case as well as the alternate

control strategy in the IXentucky plan should have been

approved. The foregoing error of the Fifth Cireuit was

perpetuated in the case of Kennecott Copper Corporation

v. Train, No. 75-1335 — F.2d — (9th Cir. 1975, Petition

for Certiorari pending) cited by Respondents on p. 8 of

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their brief. That case, relying in part on the Fifth Cireuit

case, erroneously construes the Clean Air Act and denies

the state the right to choose its own mix of emission limit-

ations. It did, however, recognize that so called constant

emission controls could not be required “unless it were

economically feasible to do so” (Slip Opinion, p. 12). The

spread of the error of the Fifth Circuit decision emphasizes

the need for this court to clear up the entire matter by

granting certiorari in this and the Aennecott case.

Petitioners have already answered Respondents’ argu-

ment set forth on p. 9 of their brief that the definition of

emission limitations in the Train case justified the dis-

approval of the alternate control strategy in the Kentucky

plan. (Petition, pp. 7-8). There are numerous alternate

control strategies which regulate the composition of sub-

stances such as sulfur dioxide, emitted into the ambient

air and hence, the portion of the Kentucky plan which would

have permitted such strategies should not have been dis-

approved. (Petition, pp. 11-12).

b) The purpose of the Clean Air Act would not be

violated by the alternate control strategy of the Kentucky

Implementation Plan as claimed by Respondents on pages

10 through 12 of their brief. In the Train case, this court

recognized that the purpose of Section 110(a)(2)(B) of

the Act was to achieve the national standards for ambient

air. “Thus, so long as the ultimate effect of the State’s

choice of emission limitations is compliance with the nation-

al standards for ambient air, the State is at liberty to

adopt whatever mix of emission limitations it deems best

suited to its particular situation”, 421 U.S. at 79. The

ambient standards are the ones which are to protect health

and general welfare. Jf they are not exceeded such pro-

tection will be achieved whether or not the emission limi-

tation takes into account dispersion or intermittent re-

5

duction. If it is found as a matter of fact that any parti-

cular alternate control strategy will cause a failure to meet

or maintain the ambient standards, then it is a defect in that

particular strategy which would justify its disapproval.

The state should not be denied its right to choose its own

mix of emission limitations so long as ambient standards are

met. Meeting such standards was one of the conditions of

the Kentucky alternate control strategy.

Certain assumptions made by U.S. EPA in regard to

intermittent control strategies are erroneous and show the

lack of understanding by the agency of an electric utility's

operation, The EPA staff paper cited in footnote 1, (Re-

spondents’ Brief, pages 3 and 4) asserts that “if plant

operation is curtailed during poor dispersion conditions,

then it may be increased during 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 situation.” <A similar statement relating

to copper smelters is quoted from the case of Aennecott

Copper Corporation v. Train, No. 75-1335 — F.2d —

(9th Cir, 1975) at page 11 of Respondents’ Brief. This

type of conjecture has no application whatsoever to an

electric generating plant because the demand for electric-

ity is instantaneous in nature and therefore must be sup-

plied on an instantaneous basis. There is no such thing as

making up lost production of electricity. If it is necessary

to secure power from other sources to make up a curtail-

ment of a particular generator on one day, the demand for

power the next day to be met by the generator which was

curtailed will not be one bit more because of the securing

of additional power the day before. Thus, in fact, there

always would be a net reduction of emissions. The second

concept contained in the EPA staff paper cited in footnote

1 on pages 3 and 4 of Respondents’ Brief is equally inap-

plicable to an electric utility. The staff paper claims that:

BLEED THROUGH

6

“Tf clean fuel is used to reduce emissions during

poor dispersion conditions, then average emissions

will be reduced somewhat. Hf fuel with higher sulfur

content is used during good conditions, then average

emissions could be greater with [an intermittent

control system].* * *”

For example, under an intermittent control strategy, a

utility might be permitted to burn coal with a 3° sulfur

content during ordinary conditions beeause the emissions

resulting from such limitation would enable the achieve-

ment and maintenance of the ambient sulfur dioxide stand-

ards, but would be required to burn coal with a 1 sulfur

content during certain meteorological conditions. When

the meteorological conditions disappeared, the utility would

have to go back to the same 3° coal it was previously

burning. There would be no reason in the intermittent

control strategy to allow burning of a higher sulfur coal

nor would there be any incentive to do so. Henee, there

would be an overall reduction in the average emissions.

Respondents also confuse the relevancy of the non-de-

gradation policy of the Act. (Respondents’ Brief, p. 12.)

The case which Petitioners seek to have this court review

deals with the right of a state to choose its own mix of

emission limitations by way of alternate control strategies

to meet ambient standards. If, as a matter of fact, peculiar

to a particular location, it would be found that a particular

strategy would result in the degradation of an exceptional-

lv pure air area, then it is that particular situation which

should be given special consideration rather than take away

the entire right of the state to adopt its own mix. To de

otherwise would be a classic example of putting the cart

before the horse. If, for example, alternate control

strategies will enable the ambient standards to be met and

7

maintained in 99% of the area of the state, they should not

be ruled out because such strategy might not be desirable

in 1% of the area of the state. It is the 1% which should

receive special attention. Otherwise, many hundreds of

millions of dollars of needless expense would have to be

borne by the people of the state for overkill in 99% of the

state.

¢) The subsequent legislation dealing with converting

certain large sources from oil or gas to coal does not sup-

port Respondents’ contention that it declares the intent

of Congress as to the earlier statute to prohibit states from

choosing alternate control strategies. (Respondents’ Brief

pp. 12-16.) The Energy Supply and Environmental Co-

ordination Act of 1974, referred to by Respondents, deals

with a situation where an existing source is not presently

a significant source of certain pollutants because it is burn-

ing a clean fuel such as natural gas and proposes to convert

to a fuel which will thereafter result in new emissions which

are designated as pollutants. In other words a new cause

of pollution will come into being. A modified “new source”

philosophy is applied by The Energy Act. Instead of having

to immediately achieve compliance, such as would be the

case of the usual new source, temporary relief is granted

(to make the switch practicable) but the ultimate require-

ment is for strict compliance with the applicable emission

restrictions.

The Conference Report of the Joint Committee of the

Senate and House on the Energy Supply and Environ-

mental Coordinator Act expressly recognizes that the Act

is dealing with a new air pollution threat. The report

states:

“*** In the judgment of the conferees, the Ad-

ministrator of EPA should be authorized to assure

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8

that orders prohibiting the burning of petroleum

products or natural gas under section 2(a) of the

Energy Supply and Environmental Coordination

Act would not create major new air pollution threats

to health, exacerbate existing serious threats to

health as a result of the increased emission of such

presently unregulated air pollutants, or prevent

sources of such pollutants from reducing a signi-

ficant risk to health.”

(Conference Board No. 93-1085 “Joint Explana-

tory Statement of the Committee of Conference”,

U. S. Code Congressional and Administrative

News, Volume 2, 93rd Congress Second Session

1974, page 3514. Emphasis added).

The Clean Air Act clearly recognizes the difference be-

tween new sources and existing sources and treats new

sources in a more restrictive manner. The fact that Con-

gress subesquently provides only for temporary use of in-

termittent controls in what it treats as a new cause of pollu-

tion can in no way be an argument that states are obligated

to indulge in unreasonable overkill by establishing a single

emission standard for all existing sources. The separate

treatment of these existing sources is expressly limited by

the Clean Air Act to meeting and maintaining the ambient

standards. This is the very thing which Kentucky’s al-

ternate control strategy required. Senator Muskie’s after

the fact attempt (see quotation on p. 15 of Respondents’

Brief) to express his personal philosophy as to how the

Clean Air Act (passed several years earlier) should be

interpreted, can hardly be given any value as legislative

history or intent.

CONCLUSION

The misinterpretation of the Clean Air Act which is

evident in Respondents’ Brief is a strong argument why it

is important that this Court grant the Petition for Cer-

tiorari in this case and clear up these important questions

for the regulator and the regulated.

Respectfully submitted,

WILSON W. SNYDER

300 Madison Avenue

P. O. Box 2088

Toledo, Ohio 43603

Telephone: (419) 255-8220

Attorney for Petitioners

Dated: March 4, 1976

Of Counsel:

A. JOSEPH DOWD, Esq.

2 Broadway

New York, New York 10004