Brief for the Respondent in Opposition — Kennecott Copper Corp. v. Train

INDEX

Page

NINOS SW co nccnaninesmaccntacuutnesmgadaiine 1

MND Sonctirtactaepsacerespnchcracnmwes nae talanmommarcnes 1

RNR NORE OR RMT ON 1

ne II 2

SEI eiseesccb. anon ierenactacns ie doeni cancer aie 2

PIII rissa cents is inciaimenininena siemens D

RING conc ac eaten ceeneeoepiont ee 14

CITATIONS

Cases:

Big Rivers Electric Corporation y. Envi-

ronmental Protection Agency, 523 F. 2d

16, petitions for a writ of certiorari

pending, Nos. 75-774 and 75-787______- 7,8

National Labor Relations Board y. Bell

Aerospace Company, 416 U.S. 267______ 10

Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, 489

F. 2d 390, reversed in part sub nom.

Train v. Natural Resources Defense

Comets, Bak WB Diivncininnddetecin 6-7, 8, 10

Sterra Club vy. Ruckelshaus, 344 F. Supp.

253, affirmed sub nom. Fri vy. Sierra

Coy Ee Sls bale ctnnideaacciaice: 10

State of Texas y. Environmental Protec-

tion Agency, 499 F. 2d 289___......___- 7

Union Electric Co. v. Environmental Pro-

tection Agency, No. 74-1542, argued Jan-

RY Ri, Seika dence camuniuecnelan 6, 7

203-531—76——-1

»

Dia OR ee Baers Ere eee |

Sa

II

Statutes and regulations:

Clean Air Act, 77 Stat. 392, as amended ine

and added by the Clean Air Amend-

ments of 1970, 84 Stat. 1676, 42 U.S.C.

1857, et seq.:

Section 109(b)(1), 42 U.S.C. 1857¢-

STEED tniecammaatcidadaisiacceies 8

Section 109(b)(2), 42 U.S.C. 1857¢-

TA REIT soc et des ceiannineatdcbainn 9

Section 110, 42 U.S.C. 1857¢-5________ 2

Section 110(a)(1), 42 U.S.C. 1857¢-

BED sentatinin st cgeies ea neoeonaida: 9

Section 110(a)(2), 42 U.S.C. 1857¢-

PMN ID seeniratiemnccbesatinel tentsibnansitesseses 2, 6,7

Section 110(a)(2)(B), 42 U.S.C.

1857¢c-5(a) (2) (B) ------ 1-2, 5, 6, 9, 11, 13

Section 110(c), 42 U.S.C. 1857¢-5(c¢)_ 3

Section 119, 42 U.S.C. (Supp. IV)

eg Re atte ne ene TO 12

Section 119(¢)(2)(B), 42 U.S.C.

(Supp. IV) 1857¢e-10(¢) (2) (B)_--- 13

Section 119(c)(2)(C), 42 U.S.C,

(Supp. IV) 1857e-10(¢) (2) (C)_--_ 13

Energy Supply and Environmental Coor-

dination Act of 1974, Pub. L. 93-319, 88

ee RE ee ser 12

BO Te IOI Fon concen seen, 4

40 C.F .R. 52.1475(e) (13) _.-........._..- 4

ER Fe CLG | | a ee 4

Miscellaneous:

119 Cong. Rec. 41774-41777 (1973)___--_-- il

120 Cong. Rec. S 10409 (daily ed. June 12,

EE eencindeciatnkeanscnenniaitmnine cosine 12

es Be, aid ei ear ena ects cebiiees 2

40 Fed. Reg. 5509-5510______-___._______ 3

ee a

Ill

Miscellaneous—Continued

Page

ie ee | re keno 3, 4-5

40 Bed. Hee, 5615... 2222 ee 4

Ae i. | eee 4

i at. ARS if SC CR 4

H.R. 11450, 93d Cong., Ist Sess. (1973) ___ 11

H.R. Rep. No. 91-1146, 91st Cong., 2d

aaa ER Eg) PRE O S e ON oe ee 10

H.R. Rep. No. 93-1013, 93d Cong., 2d Sess.

{> Rape eNte ae? nla pcre tee ee 11

S. Conf. Rep. No. 93-663, 93d Cong., 1st

PI ST wie iaerepicectintc ngparseiceeeikickas 11

S. Rep. No. 91-1196, 91st Cong., 2d Sess.

(Se?) na teideeeeens onda ee 10

SS ee ON ARPT WEE REN CPR AST BS nN tA oer ome PECs 4 RG +

PELOTON LATE SEPT RT PREM ATRIA FYE eR RETIRE amie NEEREt oes: Teer mecemait. TH

POOR COPY

Su the Supreme Gourt of the Cited States

OcTOBER TERM, 1975

No. 75-1029

KENNECOTT CoprpER CoRPORATION, PETITIONER

v.

Russett E. Trarx, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

Ja-22a) is reported at 526 F. 2d 1149.

JURISDICTION

The judzment of the court of appeals was entered

on November 28, 1975. The petition for a writ of

certiorari was filed on January 20, 1976. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether the Administrator of the Environmental

Protection Agency correctly interpreted Section

(1)

PLEASE LAGGED. LILLE LOLI! LILES SMO ME SIRI IEG ROR EOE MI LEE OPT

* aay

2

119(a)(2)(B) of the Clean Air Act, 42 U.S.C. 1857¢-

5(a)(2)(B), to require that state implementation

plans, designed to meet national ambient air quality

standards, must use continuous emission reduction

techniques to the extent available and may not rely

on intermittent or supplemental emission control

measures on a permanent basis.

STATUTE INVOLVED

Section 110 of the Clean Air Act, as added by the

Clean Air Amendments of 1970, 84 Stat. 1680, 42

U.S.C. 1857c¢—5, is set out in pertinent part at Pet. 2-3.

STATEMENT

The Clean Air Act, 77 Stat. 392, as amended, 42

U.S.C. 1857, et seq., requires the Administrator of the

Environmental Protection Agency to promulgate na-

tional primary and secondary ambient air quality

standards that will protect the public from known

or anticipated adverse effects of various air pollutants.

Each State is primarily responsible for assuring the

quality of the air within its territory and must devise

a state implementation plan designed, at a minimum,

to implement, maintain and enforce the national

primary and secondary ambient air quality standards.

Under Section 110(a)(2) of the Act, 42 U.S.C.

1857¢—5(a) (2), the Administrator is required to ap-

prove a state implementation plan if he determines.

inter alia, that “it imeludes emission limitations,

schedules, and timetables for compliance with such

limitations * * *” (Section 110(a) (2)(B), 42 U.S.C.

1857¢-5(a)(2)(B)).

ERC Ops RE eye en RET mp Cee ince i VL HUDLE I SCA BOTY ANE RE Hape SL PORE IRE OG

POOR COPY

sateen 7 0

6% re |

Pre

3

The Administrator previously had approved those

provisions of Nevada’s plan relating to control stra-

tegy except those involving control of sulfur oxide

emissions from petitioner’s McGill smelter, the only

major source of such emissions in the Nevada Intra-

state Air Quality Control Region (Pet. App. 3a). On

June 14, 1974, the State of Nevada submitted amend-

ments to its plan that would have required application

of constant emission control technology to reduce sul-

fur oxide emissions from the smelter by 60 percent

of the sulfur contained in the unprocessed ore. In

order fully to meet all ambient air quality standards,

the amendments envisioned the use of a new 750-foot

tall smokestack and also would have required use of

“supplementary”’’ or ‘‘intermittent’’ control systems

designed to control emissions further by curtailing or

discontinuing production on days when meteorological

conditions were conducive to ground level concentra-

tions in excess of the ambient air quality standards.

40 Fed. Reg. 5509-5510. The Nevada amendments

would have permitted use of these supplementary con-

trol systems on a permanent basis and did not require

application of additional direct emission controls as

they became available. 40 Fed. Reg. 5510.

On February 6, 1975, after public hearings, the

Administrator disapproved Nevada’s amendments and

promulgated substitute sulfur oxide emission hmnita-

tions pursuant to 42 U.S.C. 1857¢-5(c). 40 Fed Reg.

5508, et sey. The Administrator determined that an 86

percent reduction in sulfur oxide emissions was neces-

sary to meet the ambient air quality standards (Pet.

App. 6a), but recognized that attainment of that emis-

sion level could not reasonably be achieved at present

mS Gt 9 REE SF wil pk 1 FS Kae ew le RL Ae. RPEFY - ”

BLEED THROUGH

SATAN OASIS or |

4

using only constant emission reduction controls, The

PA Adiinistrator’s regulations therefore provided

that, as a temporary measure, petitioner may install

certain already ordered constant emission reduction

technology that would produce the 60 percent redue-

tion contemplated by the Nevada amendments, and

must employ such additional and supplementary con-

trol measures or other dispersion techniques as may be

necessary to meet the air quality standards, 40 CLELR.

O21ATH(e) (7): 40 Red. Reg. 5515. The Administrator

determined, however, that the permanent use of such

techniques could not be justified.' He therefore directed

petitioner to carry on or support a research and devel-

opment program directed at attaining compliance with

those standards solely through constant emission re-

duction techniques, and to adopt improved technology

as it becomes available for use. 40 CPLR. 52.1475(e)

» (15); 40 Ped. Reg. 5516, 5517. As stated in the

siiililla to the regulations (40 Fed. Ree. 5510);

EPA will approve such measures as intermit-

tent production curtailment and use of dispersion

techniques, incliding tall stacks, as an addition

to available constant control measures, until such

time as the treatment of weak gas streams can be

accomplished through reasonable retrofit control

techniques, Evaluation of the availabiniy of con-

stant control techniques whieh may be developed

in the future will be made using the same criteria

‘In its Memorandum in Support of Petitioner, the Staie of

Nevada overlooks the Administrator's distinction between the

temporary and permanent use of supplementary control techni-

ques. It erroneously contends that “[t]he only material difference

between the [f}ederal plan and the Nevada plan” is the require

Ment that petitioner condnet a research program (Nev, Mom. 2).

-

0

as were used in developing these regulations.

Namely, [supplementary control systems] will

continue to be allowed where permanent produc-

tion curtailment, shutdown or delays in attain-

ment of national standards are the only other

alternatives.

Petitioner filed a timely petition for review of the

Adiministrator’s actions in the United States Court of

Appeals for the Ninth Circuit. The State of Nevada

intervened in support of petitioner, The court held

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

requires the use of corstant emission reduction tech-

nology and that the Administrator therefore had

properly rejected that portion of the Nevada plan that

would have permitted the permanent use of internit-

tent controls, The court concluded that the Adminis-

trator acted within the scope of his authority “in re-

fusing toe accept intermittent controls as adequate

colupliance with the statute” (Pet. App. ba).

ARGUMENT

Petitioner contends (Pet. 10-12) that the Adminis-

trator’s disapproval of that portion of the Nevada im-

plementation plan allowing permanent use — of

supplementary control measures exceeded his au-

thority under the Clean Air Act. It argues that in

iaplementing its “preferred strategy” of constant

eniussion reductions for attaining and maintaining

winbient air standards, EPA derogated from the power

of the States to formulate emission control strategies,

in violation of the statutory division of pollution con-

trol responsibilities between the federal and_ state

governments, However, EPA's adoption of this strat-

202-521 -- 76-——-2

6

egy was not a discretionary act but a mandatory re-

sponse to the manifest congressional intention that

ambient air standards be met whenever possible by

continuous emission control limitations.’ Its rejection

of the Nevada amendments was in strict compliance

with its assigned role under the Clean Air Act. The

decision of the court of appeals therefore is correct,

and it does not conflict with any decision of this Court

or any court of appeals.’

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

U.S.C. 1857¢-5() (2) (B), requires that every state

implementation plan include

emission Hmitations, schedules, and timetables

for compliance with such limitations, and such

other measures as may be necessary to insure

attainment and maintenance of sueh primary or

secondary standard, including, but not limited

to, land-use and transportation controls.

Every court that has considered this language las

construed it to require the use of all available meas-

ures for contintteus limitation of emissions, See Na-

fural Resourecs Defouse Council, Tne. ve Ruviven-

> Thus, the State of Nevada incorrectly asserts (Nev. Mem. 3)

that the Adininistrater’s sole justification for requiring continu-

ous elission limitations was their “convemlence and ease of en-

forcement”. This argument is also implicit in petitioner's refer-

ences to the Adniiistrator’s “preferred strategy” (see Pet. 2.5),

In Jovian Bheetric Coon, Buvivoniwental Protection Aqeuey.

No. T4-15i2. argued January 21, 1976. we contended that upon

judicial review of the Administrator’s approval of a state imple-

mentation phin under the Clear Air Act, the court may not con-

sider claims that compliance is economically or technological

infeasible: As we argued in that ease, there is noe requirement in

Section 110(a)(2) of the Act, 42 U.S.C. 1857-5 (a) (2). that in

deciding whether to approve a state-submitted implementation

—

et

7

mental Protection Agency, 489 F. 2d 390, 106-409

(CLA. 5), reversed in part on other grounds sub nom,

Train v. Natural Resources Defense Council, 4221 US.

60; State of Teras vy. Environmental Protection

Ayency, 499 BF. 2d 289, 311-313 (CLA. 5): Big Rivers

Electric Corporation Vv. Environmental Protection

Agency, 523 F. 2d 16 (CLA. 6), petitions for a writ of

certiorari pending, Nos. 75-774 and 75-787.

In Tratn vy. National Resources Defense Council,

supra, 421 U.S. at 78, this Court stated that state im-

plementation plans to attain and maintain national

ambient air standards

must include “emission Jimitations,” which are

regulations of the composition of substances

eniutted into the ambient air from such sourees

as power plants, service stations, and the like.

They are specifie rules to which operators of

pollution sources are subject, and which if en-

plan, the Administrator must consider whether compliance with

the emission limitations therein is feasible. Accordingly, so long

as the plan is sufficient to achieve ambient air standards wo ve-

quires continnous emission limitations, it must be approved,

If. however, a state plan appears facially inadequate in that i

could be construed to permit: intermittent emission Tinitations,

the Administrator must review it to determine whether the inter

mittent controls are justified. Only if the demonstration of ade

quoey Which must aecompany the submission of each dmaplementa-

tion plan shows that constant emission controls are unavatlable

will tae Administrator approve a plan that permits ue of disper

sion technology suel. as tatermittent controls. Thus. the Adriins

trator does not review the feasibility of compliance with a state-

submitted plan where itis adequate on its facecas in Vaden Blee-

fetes Imit will concider feasibility only in determining whether

special eirenmstances justify approving an apparently deficient

plan that fails to inelude constant emission lindtations neee sary

to obtain approval under Section 110(a) (2), resorting instead to

dispersion techniques,

is a

forced should result in ambient air which meets

the national standards [emphasis supplied].

As had the Sixth Circuit in Big Rivers, supra, the

court below correctly interpreted this statement to

mean that “emission limitations” do not include regu-

lations that merely regulate the time during which

pollutants may be dispersed into the atmosphere or the

altitude of the smokestack through which they are

dispersed, which are the effects of intermittent or

supplemental control systems (Pet. App. lWa-l2a).

2. ‘Phe purpose of the Clean Air Act further eoi-

linus that Congress intended to require that state im-

plementation plans require continuous — emission

controls if available. National primary ambient air

quality standards are those “requisite to protect the

publie health,” 42 U.S.C. 1857¢-4(b) (1): national

secondary ambient air quality: standards are. those

‘To be sures the Court in Zr held that “so long as the na-

tional standards are being attained and maintained. there is no

basis in the present Clean Air Act for forcing further techno-

logical developments” (4d. at 91). But the Court was referring

to modification of source-by-source emission limitations fixed by

the State, which the Administrater must approve so long as the

state plan as a whole provides for a mix of emission limitations

from all sources sufficient to meet national air quality standards :

if these limitations are suflicient, the Administrator may not raise

the limitation on a particular source to force technological im-

provement as to that source, The Court did not thereby preclude

the Adiministrator from withholding his approval of state imple-

mencation plans that did not employ “emission limitations” or

that could Le construed to permit intermittent emission controls

when continuous controls were available, Nor did it prevent the

Adiainistrator from seeking to force sufficient development of

technology so that ambient air standards may be met solely

through emission limitation controls, rather than by supple-

reentary techniques (Pet. App. Dla-l2a n. 22).

9

“requisite to protect the public welfare from any

known or anticipated adverse effects associated with

the presence of such air pollutant in the ambient air,”

42 U.S.C. 1857¢-4(b) (2). State implementation plans

must provide for attainment and “maintenance” of

these standards, 42 U.S.C. 1857¢-5(a) (1). Internit-

tent controls, however, do not provide a sufficient

enarantee that national primary and secondary am-

bient air quality standards will be maintained. As the

court below stated (Pet. App. lla-12a):

Intermittent control systems (such as those re-

stricting production, or utilizing less pollut-

ing fuels, during periods of adverse weather)

do limit the amount of pollutant emitted while

such controls are being applied. However, the

reliability and enforceability of such controls

is questionable; they may not be implemented

when they are in fact needed. Moreover, there

is no assurance that temporary reductions im

emissions resulting from such controls will not

be balanced, or even exceeded, by an increase im

the amount of pollutant emitted when weather

conditions improve and production is increased

to make up for prior losses, or more polluting

fuels are again used. Thus, intermittent con-

trols, like tall stacks, may only disperse the

pollutant rather than reduce it. Tall smoke-

stacks disperse a pollutant through ereater

quantities of air: intermittent control systems

disperse a pollutant through longer periods of

time. Neither assures: a_ reduction in the

quantity of the pollutant eventually emitted.

Under section [110(a)(2)(B)], EPA may re-

quire that assurance [footnote omitted].

10

Moreover, since the use of dispersion techniques

merely regulates the timing or altitude, but not the

quantity, of pollutants discharged into the atmosphere

(Pet. App. lla-1l2a), it is at odds with the policy of

nondegradation in the Clean Air Act.’ As the court of

appeals stated in Natural Resources Defense Council,

Tne. ve Environmental Protection Agency, supra, 489

I*. 2d at 408-409:

Dispersion * * * techniques operate by keeping

pollutants out of areas of Jigh pollutant con-

centration, and dispersing them to lower con-

centration areas; their objective is to reduce

concentrations in high-concentration areas. In-

evitably, however, the pollutants emitted into

the atmosphere must end up somewhere; and

the atmosphere at their destination, wherever

that may be, will be degraded, in violation of

the congressional policy. The only techniques

fully capable of guaranteeing non-degradation

are [continuous] emission limitation — tech-

niques.°

3. “[SJubsequent legislation declaring the intent of

an earlier statute is entitled to significant weight,’

National Labor Relations Board vy. Bell) Acrospace

Company, 416 U.S. 267, 275, and the legislative his-

* This policy requires that areas of clean air, where air quality

indices are above the levels set by the national ambient air quality

standards, must not be degraded, even though degradation will

not reduce the quality of the air below levels specified by the

standards. See S. Rep. No. 91-1196, 91st C One 2d Sess. 2 (1970):

IT.R. Rep. No. 91-1146, 91st Cong., 2d Sess. 1,205 vane Nierra

CVuh ve Reuckelshaus. DAL EF. Supp. 253, 255 (1D. D.C.). atlirmed

suh nom. Brive Sierra Club Al2 US 5 AL,

* The court classified both tall stacks and intermittent controls

as dispersion techniques (47. at 594 n. 2).

11

tory of subsequent amendments to the Clean Air Act

shows that Congress intended that state implementa-

tion plans should require the use of continuous enis-

sion controls when available (see Pet. App. P3a-22a).

Congress amended the Clean Air Act in 1974, in

response to the 1973 oil embargo and energy crisis. As

it passed the House of Representatives, the 1973

predecessor to the 1974 amendment, which subse-

quently was vetoed, permitted the permanent use of

intermittent controls at certain emission sources.’ The

Conference Committee eliminated this provision and

in its draft permitted intermittent controls only upon

pollution sources that converted to coal, and then only

as a temporary relief measure under specified

conditions.”

In March 1974, the Administrator transmitted a

new proposed bill to the House which, in pertinent

part, Was the same in substance as the statute even-

tually adopted. The Administrator also transmitted

another proposal, which he did not support, that

would have amended Section T857e-5(a)(2)(B) to

provide that nothing in that section was to be con-

strued “ ‘to preclude use of * * * intermittent control

measures.” 7?" 'Phe Administrator stated that this pro-

posed amendment, which was intended * ‘to allow the

use of intermittent control strategies as a permanent

"Murphy Amendments to TLR. P50. Section 201, 83d Cong.

Ist Sess, (19793): 119 Cong. Rec. 41775-41777 (1973).

*s. Conf. Rep. No. 95-663, 95d Cong... Ist Sess. 83-84 (1975).

* Letter dated March 22. 1974. from Russell BE. Prain, Adiain-

istrator of EPA. to Hon, Carl TP. Albert, Speaker of the House of

Representatives, attached to TLR. Rep. No. 93-1013, 98d Cong.

Zab Sess, (L974). (See Pet. App. 1a—19a.)

12

method for achieving compliance with stationary

source emission standards’, would “‘signifieantly

weaken the Clean Air Act.’ *’ The Administrator re-

affirmed the contrary position taken by the Environ-

mental Protection Agency, stating, “*[a]s in the past,

EPA will contend that the intermittent controls

‘an be used only as an expedient, temporary control

measure.” (See Pet. App. 18a.)

In the course of presenting the Conference Report

on the 1974 amendment to the Senate, Senator Muskie,

Chairman of the Subcommittee on Environmental

Pollution and manager of the bill in the Senate,

stated (120 Cong. Ree. S. 10409 (daily ed. June 12,

1974)):

** * TNJo one should view limited application

of enforceable strategies related to this legisla-

tion as a precedent for future legislation or as

a reinterpretation of the requirements of the

existing law which bar the application of in-

termittent control strategies as a substitute for

emission limitations.

When finally enacted, the Energy Supply and

Knvironmental Coordination Act of 1974, Pub. LL.

95-319, 88 Stat. 246, added a new Section 119 to the

Clean Air Act, 42 U.S.C. (Supp. EV) 1857¢-L0, which

permits certain power plants and other large emission

sources that convert from burning oil or natural gas

to burning coal to obtain temporary relief from air

pollution control requirements and thereby to use in-

termittent controls temporarily if certain specified

conditions are met. One of the conditions is that the

souree in question must enter into binding contracts

to acquire cither a long-term supply of low-sulphor

13

coal or a “continuous emission reduction system.”

Whichever alternative is chosen, the arrangement

must achieve the necessary degree of emission reduc-

tion not later than December 31, 1978. Use of inter-

mittent controls after that date is not permitted. See

Sections 119(¢)(2)(B) and (C), 42 U.S.C. (Supp.

IV) 1857¢-10(¢) (2) (B) and (C).

Since the purpose of this legislation was to encour-

age certain power plants to convert from oil or gas to

coal and to provide relief to those plants that switched

to coal because of the oil supply interruption, it is in-

conceivable that Congress intended to impose on such

sources a greater burden than if they had not con-

verted, Accordingly, Congress must have assumed that

intermittent controls were not permitted prior to the

1974 amendment.”

0 On March 18, 1976. the Ilouse Committee on Interstate and

Foreign Commerce ordered that IT.R. 10498, a bill further amend-

ing the Clean Air Act, be reported favorably to the House. Section

103(a) of that proposed bill would add a new Section 12i(a) to

the Clean Air Act which would define the term “means of emission

limitation” for purposes of that Section as “a system of continuous

emission reduction (including the use of specific technology or

fuels with specified pollution characteristics) * * *.° A comparable

provision, defining “emission limitation” as a requirement limit-

ing the emission of air pollutants on a continuous basis. is included

as Section 33(i) of a similar bill to amend the Clean Air Act cur-

rently pending before the Senate Committee on Public Works. If

adopted, these bills would remove any residual ambiguity in the

expression of the congressional intention that state implementation

plans must require the use of continuous emission limitations when

available.

Moreover, Section 5(b) of the Senate biH weuld amend

Section 110(a)(2)(B) of the Clean Air Act to provide that the

Administrator mist approve a state submitted implementation

plan if, among other requirements, “it includes emission limita-

tions, schedules, and timetables for compliance with such limita-

ore 1

ew

Bock Rh ah EY

a NR BAD Sha AD.

forte

ee aS ee,

14

CONCLUSION

For the reasons stated, it is respectfully submitted

that the petition for a writ of certiorari should be

denied.

Rosert H. Bork,

Solicitor General.

pT TP 4 ep

Perer R. Tart,

Assistant Attorney General,

Jacques LB. GELIN,

EpwWarb J. SHAWAKER,

CuarLes W. SHIPLEY,

Attorneys.

Marcu 1976.

tions, and, in addition, as may be necessary, (i) to assure attain-

ment and maintenance of such primary or secondary standard,

such other measures, including, but not limited to * * * enforceable

supplemental emission reduction strategies for existing nonferrous

smelters * * *,”

Section 121(c) (3) (A) of the House bill would provide that the

owner of an existing nonferrous smelter may receive up to two

five-year extensions of the date f- > eempliance with any require-

ment of a state implementation pla. © :on a demonstration that it

is necessary to use other measures, presumably including dispersion

techniqnes, to attain and maintain national ambient air quality

standards if the Administrator has determined that no “means of

emission limitation” (as that term is defined above) necessary for

compliance with such requirement is reasonably available,

Thus, both houses of Congress have recognized that before non-

ferrous smelters may, for an extended period of time, rely upon

supplemental control techniques to comply with state implementa-

tion plans, the present Clean Air Act must be amended. Further-

more, the pendency of these amendments demonstrates that

Congress is aware of the problems of the smelter industry and is

considering whether special treatment is appropriate, If the Act is

duly amended along the lines suggested by the proposed legisla-

tion, the question presented in this case may be of no prospective

significance,

US GOVERNMENT PRINTING OFFICE: 1976