Petition for Writ of Certiorari — Tennessee Valley Authority v. Environmental Protection Agency (Nos. 75-774, 75-787)

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<seRFEME COURT, U. B i Seinen

~ OFC 2 97*

October Term, 1975

no. ¢5-787 {

TENNESSEE VALLEY AUTHORITY, Petitioner

v.

ENVIRONMENTAL PROTECTION AGENCY and

RUSSELL E, TRAIN, ADMINISTRATOR, Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Herbert S. Sanger, Jr.

General Counsel

Tennessee Valley Authority

Knoxville, Tennessee 37902

Lewis E. Wallace

Deputy General Counsel

Thomas A. Pedersen

Robert E. Washburn

Attorneys for Petitioner

TENNESSEE LAW PRINTERS, P. O. Box 277, Knoxville, Tennessee, Phone 525-4202

11-28-75-100

INDEX

eo es eee ee ee ee eee

FUMMEDOMUCRIMES 6 6 Bee ee

QUESTION PRESENTED .. 1... sce ana

STATUTE AND REGULATION INVOLVED

STATEMENT OF THE CASE .........-.

REASONS FOR GRANTING THE WRIT .....

I An Existing Controversy of National

Importance Is Presented .........

Il The Decision Below Is in Conflict with

This Court's Opinionin Train ......

Ill The Decision Below Is Contrary to the

Legislative Intent and to EPA's Contem -

poraneous Construction .........

ee ee a eer Oe ee ee

APPENDIX (Opinion and Judgment of Court of

EE Sk a eo Ae hace rete A eee

CITATIONS

Cases:

Chemical Bank New York Trust Co. v.

Steamship Westhampton,

231 F. Supp. 284 (D. Md. 1964),

aff'd, 358 F.2d 574(C.A. 4, 1965),

cert. denied, 385 U.S. 921 (1966) ......

i

Te ASE ne ety)

Natural Resources Defense Council v.

Environmental Protection Agency,

507 F.2d 905(C.A. 9, 1974). 2... 2.2.22 18

Natural Resources Defense Council v.

Tennessee Valley Authority,

459 F.2d 255(C.A. 2, 1972)... 2-2 eee ee 16

Norwegian Nitrogen Co. v. United States,

288 U.S, 294(1933). 2. 2. eee cere ree ene 18

Super Tire Eng'y Co. v. McCorkle,

416 U.S. 115(1974)..... eo a ee ee 11-12

Tennessee Valley Authority v. Environmental

Pretection Agency,

See Pee betes Gy AFT cece tee . 1

Train v. Natural Resources Defense Council,

ee eh a 6, 13, 14-15

United States v. Shirey,

Sar Ws SOP CRP OMhs 6 ct es a ake wk 16

United States v. Witkovich,

Gy a a er a 16

Federal Statutes:

Clean Air Act,

77 Stat. 392 (1963), as amended,

42 U.S.C. § 1857(1970; Supp. III, 1973), . 3-4, 5, 16

UR A ae ek re ar 2

Miscellaneous:

Hearings Before the Subcomm. on Air and

Water Pollution of the Senate Comm. on

Public Works, 92d Cong., 2dSess. (1972) . 18-21, 22-23

Kentucky Air Pollution Control Reg.,

AP-1 General Provisions § 1(1l)(b) ....... 4,13

BEGG. OG, Saves CIPFA ow tt tte ts 21-22

Pes ON BPUUPLESTO fe te te te 5

Op Ps A, SURE LEPES Ct tee 18

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

NO.

TENNESSEE VALLEY AUTHORITY, Petitioner

v.

ENVIRONMENTAL PROTECTION AGENCY and

RUSSELL E, TRAIN, ADMINISTRATOR, Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Sixth Circuit entered in

this proceeding on September 4, 1975.

OPINION BELOW

The opinion of the Court of Appeals is reported in 523

F.2d 16(C.A,. 6, 1975), and a copy of the slip opinion

appears in the Appendix hereto.

WA i ca A hs ls Pel)

JURISDICTION

The judgment of the Court of Appeals for the Sixth Cir -

cuit was entered on September 4, 1975, and this petition

for certiorari was filed within ninety days of that date.

This Court's jurisdiction is invoked under 28 U.S.C,

§ 1254(1).

QUESTION PRESENTED

At issue is the authority of the Environmental Protec-

tion Agency (hereinafter "'EPA"'), under section 110 of

the Clean Air Act, to direct the method by which the states

achieve ambient air quality standards in controlling air

pollution from existing electric power generating plants.

EPA has disapproved a Kentucky regulation which would

permit the use of "intermittent emission limitation"

systems to achieve national air quality standards. An

"intermittent emission limitation" system achieves the

air quality standards by varying the emission rate with

changing meteorological conditions, thereby utilizing the

assimilative capacity of the atmosphere as it fluctuates

from time totime. In contrast, a "constant control

system" sets a fixed emission rate without regard to

changing atmospheric conditions. It is EPA's position

that intermittent controls can be used only on an interim

basis until constant controls are available or as a supple-

ment to whatever constant controls are available. The

question presented is:

Did the Court of Appeals commit error in holding that

EPA's Administrator acted within his statutory authority

in disapproving a state regulation which would permit

the use of intermittent emission limitation systems for

the achievement and maintenance of applicable ambient

air quality standards, where constant emission limita -

tion systems are available?

STATUTE AND REGULATION INVOLVED

Section 110 of the Clean Air Act, 77 Stat. 392 (1963),

as amended, 42 U.S.C. § 1857, 1857c-5(1970; Supp. III,

1973), reads in pertinent part:

(a)(1) Each State shall, after reasonable notice and

public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national

primary ambient air quality standard (or any revision

thereof) under section 1857c-4 of this title for any air

pollutant, a plan which provides for implementation,

maintenance, and enforcement of such primary stand-

ard in each air quality control region (or portion thereof)

within such State. In addition, such State shall adopt

and submit to the Administrator (either as a part of a

plan submitted under the preceding sentence or sepa -

rately) within nine months after the promulgation of a

national ambient air quality secondary standard (or re-

vision thereof), a plan which provides for implementa-

tion, maintenance, and enforcement of such secondary

standard in each air quality control region (or portion

thereof) within such State. Unless a separate public

hearing is provided, each State shall consider its plan

implementing such secondary standard at the hearing

required by the first sentence of this paragraph.

(2) The Administrator shall, within four months after

the date required for submission of a plan under para-

graph (1), approve or disapprove such plan, or any

portion thereof. The Administrator shall approve

such plan, or any portion thereof, if he determines

that it was adopted after reasonable notice and hear -

ing and that--

POOR COPY

5 ak Rl he Pdi MS: Pee eae |

eds at

(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure

attainment and maintenance of such primary or second-

ary standard, including, but not limited to, land-use

and transportation controls... .

Kentucky Air Pollution Control Regulation, AP-1 General

Provisions § 1(1)(b) reads in pertinent part:

Where it is demonstrated to the satisfaction of the

Commission that an air contaminant source can apply

an alternate control strategy which will provide for

achievement and maintenance of applicable ambient

air quality standards, the Commission may, under

such terms and conditions as it deems appropriate,

authorize such a control strategy after a public

hearing.

STATEMENT OF THE CASE

This is a proceeding to review and set aside the action

of EPA's Admi: —-rator in disapproving a Kentucky air

pollution regulation which was adopted as a part of Ken-

tucky's implementation plan for the control of air pollu-

tion pursuant to section 110 of the Clean Air Act (42 U.S.C,

§ 1857c-5 (1970) ).

This Kentucky regulation would permit electric gener -

ating plants and other air contaminant sources to control

pollution through the use of any alternate control strategy

where it could be demonstrated to the satisfaction of the

Kentucky Air Pollution Control Commission (now the De-

partment for Natural Resources and Environmental Pro-

tection) that the control strategy would "provide for

achievement and maintenance of applicable ambient air

quality standards."" Such alternate controls include "inter -

mittent emission limitation" systems, which are "flexible"

or "variable" emission limitations and which reduce pollu-

tion and achieve air quality standards by limiting the

amounts of pollutants emitted as changing atmospheric

conditions require.

EPA's Administrator disapproved the regulation on the

ground that it “could be construed to permit intermittent

control measures under circumstances where constant

emission controls were available" (39 Fed. Reg. 29358

(1974)). Constant emission controls (such as scrubbers

or the continuous use of low sulfur fuel) regulate emissions

in accordance with "fixed" or "“constant'' emission limita -

tions. Thereafter, TVA promptly filed its petition for re-

| view in the Court of Appeals on September 9, 1974.

Section 110 of the Clean Air Act requires that after

EPA has promulgated ambient air quality standards, the

states must submit implementation plans for the attain -

ment, maintenance, and enforcement of such established

standards. It further requires that the Administrator

shall approve such plan, or any portion thereof, if he de-

termines that it was adopted after reasonable notice and

hearing, and that:

(2)(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure

attainment and maintenance of such primary or second -

ary standard, including but not limited tu, land-use

and transportation controls... . [42 U.S.C. § 1857c-

Ha). ]

The legal controversy herein centers on the meaning of

this paragraph. As stated by the Court of Appeals:

1 On June 6, 1975, during the pendency of this action, the Kentucky

regulations were revised. The subject regulation was not included in

(Continued on following page)

POOR COPY

RIFrEN rweoMmMicw

6

[T]he question in this case is whether the emission

limitations requirement of Section 110(a)(2)(B) was

satisfied by the Kentucky Plan in view of its provision

permitting an air contaminant source to apply an alter -

nate control strategy. If the requirement was satis-

fied, the Administrator was required to approve the

plan as submitted. [App. 9-10. ]

The court held that the regulation did not satisfy the

“emission limitations’ requirement. In rea::aing this

conclusion the court relied upon the following passage

from this Court's recent decision in Tyvain v. Natural Re-

sources Defense Council, 421 U.S. 60 (1975):

As we have already noted, primary ambient air stand-

ards deal with the quality of outdoor air, and are fixed

on a nationwide basis at levels which the Agency deter -

mines will protect the public health. It is attainment

and maintenance of these national standards which

§ 110(a)(2)(A) requires that state plans provide. In

complying with this requirement a State's plan must

include "emission limitations,’ which are regulations

of the composition of substances emitted into the ambi-

ent air from such sources as power plants, service

stations, and the like. They are the specific rules to

which operators of pollution sources are subject, and

which if enforced should result in ambient air which

meets the national standards. [p. 78.]

In construing this passage, the court concentrated its

attention on one word in the sentence describing ‘emission

(Continued from preceding page)

these new regulations. Respondents’ motions to dismiss for mootness were

denied on the grounds that there was a continuing controversy over the

authority of the Administrator and that “The public interest in determina-

tion of the question in this case is obvious.” (App 6.)

limitations" as being "regulations of the composition of

substances emitted into the ambient air,’ and from this

it concluded that:

The key word in this definition is "composition."" The

pertinent definition of "composition" in Webster's

Third New International Dictionary appears to be "'the

nature of a chemical compound or mixture as regards

the kind and amounts of its constituents. . . ."" Under

this definition a rule or regulation pertaining to sulfur

dioxide or any other contaminant, would qualify 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. [App. 10; emphasis

by the court. }

Based on this analysis, the court concluded that the

Administrator had acted within his statutory authority in

disapproving the regulation, and that there was nothing

in the legislative history of the Act to suggest that the

Administrator had misinterpreted the congressional will

in his construction of section 110. For the reasons

shown hereinafter, it is respectfully submitted that this

is an improper interpretation of Train and that the court's

interpretation is in direct conflict with the legislative in-

tent and with the contemporaneous construction placed on

the Act by EPA's first Administrator, William D.

Ruckelshaus.

Emphasis added hereia unless otherwise noted.

REASONS FOR GRANTING THE WRIT

The reasons for granting the writ are threefold: (1) an

existing controversy of national importance is presented,

(2) the decision below is in conflict with this Court's

opinion in Train, and (3) the decision below is contrary

to the legislative intent and to EPA's contemporaneous

construction,

|

An Existing Controversy of National

Importance Is Presented.

The case presents an issue which has immediate impor -

tance far beyond the particular facts and parties involved.

The court below recognized the national importance of this

case when it found that:

The public interest in determination of the question in

this case is obvious. There is a subsisting controversy

between the petitioners and EPA over the authority of

the Administrator of that agency. [App. 6. ]

At issue is the interpretation of a critical portion

(§ 110) of the Clean Air Act. This Act is a major piece

of complex legislation which has been the subject of nation -

wide controversy and litigation, due in part to the fact it

created a dual (federal-state) approach to the control of

air pollution. The proper interpretation of section 110

is vital to the Nation because it establishes the relation-

ship between EPA's Administrator and the various states

in the enforcement of the Act.

The fundamc ‘*al question is whether the Clean Air Act

gives EPA's Administrator authority to substitute his judg-

ment for that of a state in determining the most desirable

method of controlling emissions to meet national ambient

air quality standards. Initially, Congress struck a bal -

ance in the Clean Air Act between the roles of the states

and EPA by requiring EPA to establish national ambient

standards to protect the public and by leaving it up to each

state, presumably more responsive than EPA to the needs

of its citizens, to weigh the social and economic consider -

ations of the various alternative methods of achieving

those standards.

The present EPA Administrator has, however, upset

that balance. The effect of his action, and of the Sixth

Circuit's approval thereof, is to restrict the range of

alternatives which can be used by a state to achieve the

national standards —an action which has far-reaching

ramifications of national significance. Several states

in addition to Kentucky have already sanctioned the inter -

mittent control approach. The elimination of the inter -

mittent control alternative will result in the exploitation

of greater amounts of low sulfur coal, mostly in the West.

It could increase pressures to import larger quantities of

foreign low sulfur oil; and it will inevitably divert enor -

mous economic resources to installation and operation of

expensive air pollution control equipment, even where

such equipment is not needed to achieve ambient stand-

ards. For example, the cost of using constant controls

on the TVA power system alone will be near $200 million

each year, or 10 times more than intermittent controls

would cost.

Furthermore, whatever the final outcome on the merits,

it is to the Nation's interest to have this matter settled as

quickly as possible. The electric power industry, the

smelting industry, and others have for years been em-

broiled in a bitter nationwide controversy over the lawful

methods for controlling air pollution. The design and

os

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10

installation of air pollution control devices require long

lead times and the investment of large sums of money.

The conflicting interpretations by EPA administrators as

to the legality of intermittent control systems has made

it extremely difficult for many sources, especially utili-

ties, to make the irrevocable commitment of hundreds of

millions of dollars to install constant control measures

when they may not ultimately be required. Thus, final

clarification of the requirements of section 110 is crucial

if we are to make timely progress in solving the Nation's

air pollution problems.

Finally, the case is also of vital national importance

because it involves the correct interpretation of this

Court's recent opinion in Train, which is the only deci-

sion of this Court construing section 110. The live con-

troversy surrounding the Sixth Circuit's interpretation of

Train calls for prompt resolution to avoid needless and

protracted litigation, and to afford the electric power in-

dustry adequate opportunity to comply with the law.

EPA's contention that the case was moot because the

disputed regulation was not reinstated in Kentucky's new

regulations was properly rejected by the court of appeals.

This is a special statutory action to challenge the authority

of the EPA Administrator under the Clean Air Act to strike

down such an alternate control regulation. The record is

clear, and it is not disputed, that the Administrator claims

this statutory authority today and that the rejection of inter -

mittent controls (except on an interim basis or to supple-

ment constant controls) is a part of his present national

policy. It is idle to suppose that Kentucky or any other

state will now adopt such regulations in the face of EPA's

declared policy against them and the court's sanction of

that interpretation of the Administrator's authority.

11

The "controversy" is whether the Administrator has

the statutory authority to disapprove this alternate con-

trol regulation and not whether Kentucky should or should

not adopt such regulation. The statute defining the Ad-

ministrator's authority has not been changed, nor has

the Administrator's interpretation of the Act changed.

The "controversy" still exists. It has not subsided but

has actually intensified. Unless restrained, the Admin-

istrator will continue to enforce his interpretation of the

Act by issuing compliance orders and striking down all

such alternate control regulations.

The principles of law are clear. As said in Super

Tire Eng'y Co. v. McCorkle, 416U.S, 115 (1974):

The question is "whether the facts alleged, under all

the circumstances, show that there is a substantial

controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to war-

rant the issuance of a declaratory judgment." Mary-

land Casualty Co. v. Pacific Coal & Oil Co., 312 US

270, 273. . . (1941). And since this case involves

governmental action, we must ponder the broader

consideration whether the short-term nature of that

action makes the issues presented here ‘capable of

repetition, yet evading review," so that petitioners

are adversely affected by government “without a

chance of redress." Southern Pac. Terminal Co. v.

ICC, 219 US 498, 515... (1911).

. the challenged governmental activity in the pres-

ent case is not contingent, has not evaporated or

disappeared, and, by its continuing and brooding

presence, casts what may well be a substantial ad-

verse effect on the interests of the petitioning parties.

* * *

J vih ty tervacn ita crR

PP ss

12

. . . It is sufficient, therefore, that the litigant show

the existence of an immediate and definite govern-

mental action or policy that has adversely affected

and continues to affect a present interest. [pp. 122,

125-26. ]

This decision, and the authorities cited in the opinion

below, demonstrate that the court of appeals was emi-

nently correct in holding that there is a subsisting con-

troversy between the parties, the determination of which

is in the public interest.

13

II

The Decision Below Is in Conflict with

This Court's Opinion in Train.

The goal of the Clean Air Act is to protect the quality

of the air we breathe. That goal is achieved by assuring

compliance with the national ambient air quality stand-

ards. The basic structure of the law is that the federal

government (EPA) has the responsibility for setting ambi-

ent air quality standards (§ 109), and the states have the

responsibility for specifying the manner in which those

standards will be achieved and maintained (§ 107). As

stated in Train:

It is attainment and maintenance of these standards

which § 110(a)(2)(A) requires that state plans provide.

[421 U.S. at 78.]

Train makes it clear that section 110 requires the state

implementation plans to contain "emission limitations,"

which are rules and regulations "which if enforced should

result in ambient air which meets the national standards."

(Id.) |The Kentucky regulation in question does that in

these precise terms:

Where it is demonstrated to the satisfaction of the

Commission that an air contaminant source can apply

an alternate control strategy which will provide for

achievement and maintenance of applicable ambient

air quality standards, the Commission may, under

such terms and conditions as it deems appropriate,

authorize such a control strategy after a public hear -

ing. [Ky. Air Pollution Control Reg., AP-1 General

Provisions § 1(1)(b).]

14

The Court of Appeals upheld the action of EPA's Ad-

ministrator who disapproved this regulation on the ground

that it

. could be construed to permit intermittent control

measures under circumstances where constant emis-

sion controls were available. [App. 3.]

There is nothing in Train, or the Clean Air Act, to

suggest that ambient air quality standards must be attained

through the use of constant controls, rather than through

the use of intermittent controls, or any other type of con-

trols. To the contrary, Train states very specifically

that:

Under § 110(a)(2), the Agency is required [emphasis

by the Court] to approve a state plan which provides

for the timely attainment and subsequent maintenance

of ambient air standards, and which also satisfies that

section's other general requirements. The Act gives

the Agency no authority to question the wisdom of a

State's choices of emission limitations if they are part

of a plan which satisfies the standards of § 110 (a)(2),

and the Agency may devise and promulgate a specific

plan of its own only if a State fails to submit an imple-

mentation plan which satisfies those standards. § 110

(c). Thus, so long as the ultimate effect of a State's

choice of emission limitations is compliance with the

national 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 central theme throughout Tvain is that Congress

has stated its goal to be the timely attainment and mainte-

nance of specified air quality standards and that the states

15

have the primary responsibility for determining how that

is done:

We believe that the foregoing analysis of the structure

and legislative history of the Clean Air Amendments

shows that Congress intended to impose national ambi-

ent air standards to be attained within a specific period

of time. . . . We also believe that Congress, consist -

ent with its declaration that, "Each State shall have

the primary responsibility for assuring air quality"

within its boundaries, § 107 (a), left to the States con-

siderable latitude in determining specifically how the

standards would be met. This discretion includes the

continuing authority to revise choices about the mix of

emission limitations. [Jd. at 86-87.]

Train emphasizes that the goal is the attaining and

maintaining of national ambient air quality standards, and

that the states need not do more. In reversing the Fifth

Circuit, this Court said:

What the Fifth Circuit failed to consider, however, is

that so long as the national standards are being attained

and maintained, there is no basis in the present Clean

Air Act for forcing further technological developments.

[Id at 91.]

There is nowhere to be found in the Clean Air Act any

requirement that constant controls be employed on exist-

ing plants to attain the national air quality standards.

This is in sharp contrast to the Act's requirements for

new plants. Section 111 of the Act, which governs new

plants, specifically authorizes the Administrator to estab-

lish "standards of performance”:

~% a |

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- Kinet 5 ad

16

(1) The term "standard of performance" means a

standard for emissions of air pollutants which reflects

the degree of emission limitation achievable through

the application of the best system of emission reduc -

tion which (taking into account the cost of achieving

such reduction) the Administrator determines has been

adequately demonstrated. [42 U.S.C. § 1857c-6a.]

The basic error in the Court of Appeals' decision is

its failure to recognize that a control strategy for exist-

ing plants is only required to restrict or limit emissions

to the extent necessary to meet ambient air quality stand-

ards. This distinction between section 110 and section

111 is fundamental. The Sixth Circuit's decision destroys

this basic distinction, and thereby thwarts the policy of

the Act. Its interpretation of Tvain hinges on what it

termed the "key" word "'composition."' By focusing on

the dictionary definition of this word, the court reached

a result which is contrary to the basic philosophy of sec -

tion 110 as explained in Train, and as revealed in the

legislative history of the Act. The result of this diction-

ary approach is to distort the meaning of the words "'emis-

sion limitations" as used in section 110 by equating them

with "emission reductions" or “emission standards,"

which are part of section 111 governing new plants, but

not part of section 110.

It would appear to be inappropriate to interpret Train

by isolating one word for dictionary analysis when such

a method produces a result which is inconsistent with the

main theme of the opinion. The weakness of such literal

approach is aptly explained in United States v. Witkovich,

353 U.S. 194, 199 (1957); United States v. Shirey, 359

U.S. 255, 260-61 (1959); and Natural Resources Defense

Council v. Tennessee Valley Authority. 459 F.2d 255,

257 (C.A.2, 1972).

17

III

The Decision Below Is Contrary to the

Legislative Intent and to EPA's

Contemporaneous Construction.

In upholding the Administrator's action the Court of

Appeals stated that

Nothing in the legislative history of the Act suggests

that the Administrator has misinterpreted the congres-

sional will in his construction of Section 110(a)(2)(B).

As the Supreme Court noted in Train v. NRDC,_inter-

pretations of this complex statute by the agency charged

with administering it are entitled to great deference.

Udall v. Tallman, 380U.S. 1, 16-18 (1965); Me-

Laren v. Fleischer, 256 U.S. 477, 480-81 (1921).

This court finds no reason to substitute its judgment

for that of EPA in construing the Act. [App. 12.]

Yet, the court's opinion refers to none of the legislative

history it relied upon. Neither does it advert to the fact

that the interpretation placed upon section 110 by EPA's

present Administrator is in conflict with the views of its

original Administrator, William D. Ruckelshaus. W ‘h

deference, we believe that the court's severely constricted

interpretation of section 110 reflects a conception which

ignores the basic scheme and objective of the Act and that

the court should have accepted the contemporaneous con-

struction of EPA's first Administrator (Ruckelshaus),

rather than that of the present Administrator.

The law is clear that the contemporaneous interpreta -

tion of the original Administrator is accorded greater

weight than the subsequent interpretation of his successor.

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18

Norwegian Nitrogen Co. v. United States, 288 U.S. 294

(1933); Natural Resources Defense Council v. Environ-

mental Protection Agency, 507 F.2d 905, 916 (C.A.9,

1974); Chemical Bank New York Trust Co. v. Steamship

Westhampton, 231 F. Supp. 284 (D. Md. 1964), aff'd,

358 F.2d 574 (C.A. 4, 1965), cert. denied, 385 U.S.

921 (1966).

In his appearance before the Senate Subcommittee on

Air and Water Pollution in February 1972, Mr. Ruckel-

shaus testified that if an emission control system® meets

the air quality standards, there is no way that EPA can

turn it down:

We have to accept a plan which meets an ambient air

quality standard in a particular region, and if they

have no emission limitation as to sulfur oxide in that

region, and no emissions of sulfur oxides or those: be-

ing emitted don't violate the standards, there is no

way under the act that we can turn the plan down.

* * *

Our responsibility is as spelled out in the bill which

went through this committee and passed the Senate,

. Emission control strategies take a variety of forms and are discussed

under various terminologies such as "Intermittent Control Systems," “Vari-

able Control Systems," "Supplemental Control Systems," etc, Whatever

form or name is used, EPA acknowledges that they are “emission limita-

tions" designed to “ensure that emissions are curtailed at the times and to

the extent necessary to assure that the National Ambient Air Quality Stand-

ards are maintained regardless of adverse meteorogical conditions. "

EPA also acknowledges that such systems “can incorporate design and

enforcement features that will provide a reliable means to attain and main-

tain NAAQS [National Ambient Air Quality Standards] for sulfur oxides. “

(40 Fed. Reg. 19212 (1975). )

19

and that is that we are to set national ambient air qual-

ity standards. The states supply us implementation

plans as to how they meet those standards.

ai * *

Now in section 110(a)(2) of the act which I[ have to ad-

minister says: "The Administrator shall approve

such plan, if it meets the ambient air quality stand-

ards both primary and secondary." It doesn't say,

I may. [Hearings Before the Subcomm. on Air and

Water Pollution of the Senate Comm. on Public Works,

92d Cong.. 2d Sess. 238, 245, 273 (1972).]

He also emphasized that EPA's role was not to dictate

to the states the types of systems the states must require

to attain and maintain the air quality standards, but that

EPA should encourage a variety of approaches to the prob-

lem:

The purpose of appendix B [to the Guidelines] was not

to tell the States what they had todo _ but to give them

suggestions and provide them with the kind of flexibility

and ability with which to innovate in order to meet

the standards themselves, and which we felt were

necessary in order to receive acceptable plans. [Jd.

at 231.]

These regulations make it clear that a State plan does

not meet the requirements of the Clean Air Act unless

it contains a control strategy to attain and maintain

the national standards The regulations encourage the

States to consider a variety of approaches to control

emissions, including the application of economic in-

centives or disincentives, the relocation of sources,

and changes in methods of operation of sources. [ld.

at 226.]

20

Throughout his testimony Mr. Ruckelshaus stressed

the fact that under the law, and under EPA's guidelines,

the control strategies available to the states in meeting

the air quality standards were many and varied, and all

that is required is that the standards be met. As to such

control strategies he said:

Control strategy, as defined in the guidelines is a com-

bination of measures designated to achieve an aggre -

gate reduction of emissions necessary for attainment

of the national standard including, but not limited to,

measures such as an emission limitation. [Jd. at

238. ]

That is precisely the view expressed in Train

By letter dated March 15, 1972. Mr. Ruckelshaus sub-

mitted to Senator Eagleton and the subcommittee a memo-

randum of law which discussed the concept of "emission

limitations" in more detail, and which stated in part:

The term "emission limitations" should not and cannot

be so narrowly defined as to exclude monitorable and

enforceable measures which control emissions in other

ways than by limiting the amount of pollutants emitted

from stacks.

. . . There can be no argument that the term "emis-

sion limitation" encompasses. in addition to specific

numerical limits on discharges from stacks, such

measures as restrictions on the use of certain fuels,

restrictions certain activities, regulations controlling

hours and manner of operations and other similar

measures.

It is necessary to emphasize this point because it is

important that the meaning of an "emission limitation"

~~?

&.

21

be understood. The term cannot and should not be so

limited that it prevent the use of innovative require-

ments of different control requirements than have been

used in the past. [Jd at 314-15.]

The effect of the court's opinion in upholding the Ad-

ministrator's action is to allow EPA to usurp the power

of the states and to regulate and establish emission stand-

ards for existing plants under section 110 in the same

manner as it establishes emission standards and perform -

ance standards for new plants under section 111. This

is clearly contrary to the congressional intent.

The question of whether Congress should contro] air

pollution by setting standards for the degree of concentra -

tion of pollutants in the ambient air (air quality standards),

or by setting standards for the quantity or rate of stack

emissions (emission standards), involved a choice between

two basically different concepts. It is a problem which

has given Congress much concern. The legislative his-

tory of the Act shows that Congress not only considered

the question of using emission standards for existing plants,

as well as new plants, but it expressly rejected that ap-

proach.

The consistent congressional policy with respect to

existing plants (except plants converting from oil to coal)

has been to contro! pollution through the use of ambient

air quality standards, not through stack emission stand-

ards. The reasons that new plants (§ 111) are treated

differently are obvious. Perhaps it was best capsuled by

Senator Cooper:

The concept is that wherever we can affort or require

new construction, we should expect to pay the cost of

22

using the best available technology to prevent pollution.

[116 Cong. Rec. 32918 (1970). ]

This basic question arose at a hearing in 1972 before

the Senate Subcommittee on Air and Water Pollution at

which Mr. Ruckelshaus testified:

There was a debate in Congress as to whether we had

the power to establish national emission controls and

that was specifically excluded and instead there was

an air quality standard adopted as opposed to an emis-

sion standard.

» * *

, The Congress could have done two things. They

could have set, as they did, the responsibility of the

Environmental Protection Agency to set national ambi-

ent air quality standards to protect public health and

all known anticipated effects of certain air pollutants.

That is what we have done.

Senator Baker. What I am saying is, to refine it a

little further, that Clean Air Act and clean air amend-

ments in effect are a criteria system with certain Fed-

eral standards in the case of hazardous and toxic sub-

stances, but it is still essentially a criteria system,

leaving it up to the States with flexibility to decide

what control techniques or what emission standards

they will impose, not we. [Hearings Before the Sub-

comm. on Air and Water Pollution of the Senate Comm.

on Public Works, 92d Cong., 2d Sess. 266-67 (1972). |

OP DC a NET INNA Sg ibe BIEN gs? be Ee hell PA BEE 8s DSL AT

OL AMORA RADA OD 0505

Later in the discussion Senator Baker made it clear

; that if emission standards are desired, instead of air qual-

3 ity standards, the Act should be amended:

YL

23

Senator Baker. No, the way to say that, instead of

emission limitation, is to say emission standards as

with automobiles and parts per million.

* * *

. If you want to do it as emission standard system,

change the act, don't fuss at him, fuss at the commit-

tee. [Jd. at 270.]

It is clear from this cursory reference to the legisla -

tive history that the decision of the Court of Appeals is

inconsistent not only with the congressional intent, but

also with the contemporaneous construction of the statute

by EPA's first Administrator.

a ees

Oe a NES ABN Sod ee.

24

CON CLUSION

It is respectfully submitted that the issues presented

herein are of such magnitude and national importance,

and the decision of the court below is of such doubtful

validity, that the petition for a writ of certiorari should

be granted.

Respectfully submitted,

Herbert S. Sanger, Jr.

General Counsel

Tennessee Valley Authority

Knoxville, Tennessee 37902

Lewis E. Wallace

Deputy General Counsel

Thomas A, Pedersen

Robert E. Washburn

Attorneys for Petitioner

I authorize the filing of this petition for a writ of

certiorari.

Robert H. Bork

Solicitor General

Department of Justice

Washington, D.C. 20530

25

CERTIFICATE OF SERVICE

I certify that the foregoing petition for writ of certiora-

ri was served on all parties required to be served by

mailing three copies thereof airmail, postage prepaid,

to counsel of record as follows: Robert H. Bork, Solici-

tor General, Department of Justice, Washington, D.C.

20530; Charles W. Shipley, Esq., Pollution Control Sec -

tion, Land and Natural Resources Division, United States

Department of Justice, Washington, D.C. 20530, and

Richard J. Denny, Jr., Esq., Office of General Counsel,

Environmental Protection Agency, 401 M Street, SW,

Washington, D.C. 20024; on the intervenor Common-

wealth of Kentucky by mailing copies to Ed W. Hancock,

Attorney General, Commonwealth of Kentucky, Capitol

Building, Frankfort, Kentucky 40601; and on the inter -

venor Natural Resources Defense Council, Inc., by mail-

ing copies to Richard E. Ayers, Esq., 1710N Street, NW,

Washington, D.C. 20086.

This lst day of December, 1975.

Thomas A. Pedersen

Division of Law

Tennessee Valley Authority

Knoxville, Tennessee 37902

Attorney for Petitioner

Tennessee Valley Authority

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aon eee

BR erase BE

= a

BLE

No. 74-2015

No. 74-2020

UNTIED STATES COURT OF APPEALS

FOR THE SIXTH CiRCUIT

Bi Rovers Exvecrric Corporation, |

Crry Uruurry CoMMissiON OF THE

Cny oF OWENSBORO, KENTUCKY,

Fast Kenrucky RuraL ELrecrnic

CoorpExaTivE CorPORATION, KEN-

Tucky Power Company, KENTUCKY

Utruuaries Company, THE UTILITY

ComMMISSION For Tie Crry or HEN-

DERSON, KENTUCKY MUNICIPAL Pow-

ER AND LicHT SysTEM,

Petitioners,

CoMMONWEALTH OF Kentucky, Pea-

popy Coat COMPANY, Petitions for Review

of Action of the Ad-

ministrator of the

Environmenta! Pro-

ENVIRONMENTAL Protection AcENcy,; tection Agency

Russert. E Trax, Administrator,

Respondent.

Intervenors,

Vv.

. ———+ eee

TENNESSEE VALLEY AUTHORITY,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY

and Russeut E. Tram, Administra-

tor,

Respordents,

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Beeccsticey Se weal Ia Pe RATER Bs is Bs CE

2 Big Rivers Elec, et al v EPA Nos. 74-2015, 74-2626

NatunkaL Resources DeFENSE Coun- |

ciL, INc.,

intervenor, ;

Ep W. Hancock, Attorney GENERAL

oF THE COMMONWEALTH OF KEN

TUCKY,

intervenor.

Decided and Filed September 4, 1975.

Before: CrLesrezze, Mittrr and Livevy, Circuit Judges.

Livecy, Circuit Judge. The underlying question in this

case is whether the Administrator of the Environmenta! Pro-

tection Agency (EPA) properly disapproved a sta e reguletio::

promulgated uider the Clean Air Act Amendments of 1979,

42 U.S.C. §§ 1857a-} (Supp. 1975), which would save au-

thorized coal-burning plants (“sources” in the Act) to em-

ploy ‘alternate -ontrol strategies’ for the conizo! of ar oon

tion by sulfur oxide gases w'tho.t show ne that Ggucten

emission c ntrois of such pollutants are un vailable. Ccastaui

emissi-n controis sve achieved pnmanty by th. -nostuilation

0: “s... bbers.” The al-ernate con oi method emp oyed by the

petitioners cons..ts ptacip Hy o the use tf mtermitent esus-

sion lhmutations systems. The -eparate peiitions ior review

filed by ‘he Tennessee Valley A thormt, TVA) ond several

elec tneal uiiciac, compa. os operating ip Aentucky ( Le Util

ties) were consolidate fi bean g ..t issue is the action

of the Adm vivir co an sep .ov ng a portion ef the Ken-

tucky umplementation Plan fer the Artagm oo: and Mamicn-

a.ee of the NS conai and State stabient Aw Quan $e. cards”

(Keatucky ei The vertien which disa. 70

vided a5 foilew;

Nos. 74-2015, 74-2020 Big Rivers Elec. et al. v. EPA 3

Where it is demonstrated to the satisfaction of the [Ken-

tucky Air Pollution Control] Commission that an air con-

taminant source can apply an alteraate control strategy

which will provide for achievement and maintenance of

applicable ambient air quality standards, the Commission

may, under sucli terms and conditions as it deems ap-

propriate, authorize such a control strategy after a public

hearing. Ky. Air Pollution Control Reg. No. AP-J, §1

(1)(b).

Original EPA approval of the entire Kentucky Plan was va-

cated by this court for failure to adhere to the requirements

of the Administrative Procedure Act. Buckeye Power, Inc. v.

EPA, 481 F.2d 162 (6th Cir. 1973). Subsequently the Ken-

tucky Plan, with the exception of Section 1(1)(b), supra,

was approved on August 9, 1974. The Acting Administrator

of EPA stated with reference to Section 1(1)(b), his opinion

“that this provision of the Kentucky plan — if not specifically

disapproved — could be construed to permit intermittent con-

trol measures under circumstances where constant emission

controls were available.” To eliminate the possibility of such

an interpretation the section was specifically disapproved for

failure to meet the requirements of controlling federal regula-

tions.

The Utilities and TVA maintain that EPA’s disapproval of

the quoted provision of the Kentucky Plan will prevent them

from meeting the established air quality standards by use of

“intermittent emission limitation” systems which are much

Jess costly than scrubbers. The petitioners argue that the

purpose of the Clean Air Act is to establish national standarsls

of air quality within a scheme of dual responsibility which

leaves to the States the task of formulating actual emission

standards. They maintain that Congress has made air pollu-

tion control a partnership venture in which EPA sets standards

and each State determines the methods best suited for reach-

ing those standards within its geographical boundaries. Thus

they argue that the Administrator has exceeded his statutory

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ce 3a. ig Sie ek

Argh "

ESS RR ri A eG ES.

4 Big Rivers Elec., et al. v. EPA Nos. 74-2015, 74-2020

authority in disapproving a portion of the Kentucky Plan d-al-

ing only with a permissible method of controlling air quality

while finding that the Plan otherwise met t’:e natio..al stain

dards_ In the alternative they contend that cven if the

Administrator possessed such power, his action in disapproving

the Kentucky provision for an alternate strategy was arbitrary

and constituted an abuse of disci etion.

Jurisdiction

Though the question has not been raised by any of the

parties there is an issue with respect to the court's jurisdiction

to consider these petitions. Judicial renew of actions of the

Administrator is provided for in Section 307 of the Act, 42

U.S.C, § 1857h-5(b)(1) as follows:

... A petition for review of the Administrator's action

in approving or promulgating any imp!ementation plan

under section 1857c-5 of this title . . . may be filed only

in the United States Court of Appeals for the appropriate

circuit.

There is no statutory provision for review of an action disap-

p oving a plan or a portion the.:eof because disapproval is

not a final administritive action. Utah ‘nternational, Inc. °.

EPA 478 F.2d 126 (10th Cir. 1973). However all parties

including the Administrator have treaced his action as a final

approval of the Kentucky Plen with the disuppro ed portion

elir- ‘nated. ad we treat the proceedings as a petition fur re-

view of the approval of the Plan.

The Mootness Issue

The Commonwealth of Kentucky, by its Attorney General,

has been permitted to intervene in these proceedings, and has

made a motion to dismiss them as moot. EPA has also filed

a motion to dismiss on the same ground. The Kentucky

General Assembly in 1974 required administrative agencies of

Nos. 74-2015, 74-2020 Big Rivers Elec., et al.v. EPA 5

the Commonwealth, including the Department for Natural

Resources and Environmental Protection (the Department),

to file all their regulations by July 1, 1975. On March 1,

1975, the Department caused its proposed regulations to be

printed in the Administrative Register, the official compilation

of such regulations. On July 2, 1975, final review of the

regulations took place and the new regulations became effec-

tive as of June 6, 1975. The current air pollution control

regulations do not contain the language of Section 1(1)(b)

of the former regulation or any equivalent provision which

would permit approval by the Department of alternate control

strategies. Thus it is argued that there is no case or contro-

versy to be decided since the questioned regulation is no longer

in force.

The jurisdiction of federal courts is limited by Article III

of the Constitution to consideration of actual cases and con-

troversies. Thus federal courts do not render advisory opin-

ions or continue to consider an action if the controversy

which underlies the action ceases to exist prior to its termina-

tion. See United States v. Hamburg-American Co., 239 U.S.

466, 475-76 (1916); California v. San Pablo & Tulare R.R.,

149 U.S. 308, 314 (1893). For more recent Supreme Court

pronouncements on the general doctrine of mootness, see Roe

v. Wade, 410 U.S. 113, 125 (1973); North Carolina v. Rice,

404 U.S. 244, 246 (1971).

The mootness doctrine has limited application in at least two

related types of cases. One type is specifically concerned

with administrative orders. This limitation was first enunci-

ated in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

(1911), which involved preferential freight rates. The terminal

company instituted an action to challenge an order of the

ICC which prohibited the granting of such preferences. The

order expired before the case reached the Supreme Court,

and the ICC argued that the case had become moot. The

Court held otherwise, stating — “The questions involved in

the orders of the Interstate Commerce Commission are usually

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6 Big Rivers Elec., et al. v. EPA Nos. 74-2015, 74-202°

continuing (as are manifestly those in the case at bar) snd

their consideration ought not to be, as they might be, de-

feated, by short term orders, capable of repetition, yet evading

review... .” Id. at 515. This is a proper case for applica-

tion of the Southern Pacific Terminal doctrine since it concerns

an order which is clearly capable of repetition, but which

would evade review if the principle of mootness were strictly

applied.

The other class of cases which requires relaxation of the

mootness principle consists of those in which persons other

than the parties to the action have a tangible interest or are

likely to be directly affected by the outcome of the litigation.

Cases which involve public interest, or rights of the public

generally, are not necessarily rendered moot by an act which

puts an end to the particular controversies which precipitated

them. United States v. W. T. Grant Co., 345 U.S. 629 (1953).

The fact that one party to whom an administrative order is

directed elects to comply with it should noi deprive others

who claim to be adversely affected by the order from contesting

it. Cf. Super Tire Engineering Co. v. McCorkle, 416 U.S.

115, 122 (1974). The public interest in determination of the

question in this case is obvious. There is a subsisting con-

troversy between the petitioners and EPA over the authority

of the Administrator of that agency. The action of the Ken-

tucky Department in no way answered the questions which

this case raises concerning the Administrator's authority.

The motions to dismiss for mootness are denied.

The Merits

The history of the Clean Air Act Amendments of 1970

(the Act) and its scheme for achieving and maintaining air

quality through joint state-federal action are clearly described

in Buckeye Power, Inc. v. EPA, supra, 481 F.2d at 165-66, and

Natural Resources Defense Council, Inc. v. EPA, 489 F.2d

390, 394-96 (5th Cir. 1974), rev'd on other issues sub nom.

Nos. 74-2015, 74-2020 Big Rivers Elec., et al. v. EPA 7

Train v. Natural Resources Defense Council, Inc., —— U.S. —-,

43 U.S.L.W. 4467 (April 16, 1975). The dual (state-federal )

approach of the Act is basic to its structure, and this case re-

quires a delineation of certain areas of authority reserved to

each governmental partner. The contention of petitioners that

the scheme of the Act limits the role of EPA to that of setting

primary and secondary ambient air quality standards and

leaves to the States the selection of the means of attaining

and maintaining these standards is an oversimplification.

Involved in this case is Section 110(a)(2) of the Act, 42

U.S.C. § 1857c-5(a) (2), by which the Administrator is required

to approve or disapprove each plan or portion thereof within

four months after the date required for submission by the

States, approving the plan “if he determines that it was

adopted after reasonable notice and hearing” and that

(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and such

other measures as may be necessary to insure attainment

and maintenance of such primary or secondary standard,

including, but not limited to, land-use and transportation

controls;... .

The respondents and the intervenor, Natural Resources De-

fense Council, Inc. (NRDC), argue that the Administrator is

not required to approve a plan which does not include emission

limitaticns, and that an alternate control strategy which is

based upon intermittent emission control measures does not

meet this requirement. Such practices are said to merely

disperse the pollutants emitted from sources without reducing

the amounts. Thus, these parties construe the language of

Section 110(a)(2)(B) to mean that a plan must require each

source of pollution to apply continuous limitations to the

amount of sulfur dioxide which it emits. (Though the limita-

tions requirement applies to several contaminants, the pres-

ent case is concerned with sulfur dioxide.) The <lternate

control strategy advocated by petitioners would permit a

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8 Big Rivers Elec., et al. v. EPA Nos. 74-2015, 74-2020

source to restrict its emissions by switching to low sulfur

fuel or reducing operations at the source only during those

periods when atmospheric conditions and existing pollution

levels dictate a need for a specific source emission reduction.

Implementation of the alternative strategy would depend or:

the aggregate of pollution in a given area rather than the

emission from any particular source.

The Fifth Circuit dealt with the same basic issue in NRDC

v. EPA, supra, which involved a provision of the Georgia Plen

that permitted amounts of particulates and sulfur dioxide

emissions to depend on the heights of smokestacks at the

sources. The court held that this “tall stack” approach was

in conflict with Section 110(a)(2)(B) of the Act since it

resulted in the enhancement of dispersion of pollutants rather

than limitation of their emission. Adopting the “broad ap-

proach” interpretation of Section 110(a)(2)(B), the court

concluded that the Act estabiished a policy of “nondegreda-

tion” of the atmosphere and that “[t]he only techniques fully

capable of guaranteeing nondegredation are emission limita-

tion techniques.” 489 F.2d at 409.

The petitioners argue that the alternate control strategy

which they would employ if the dis:pproved po:tion of the

Kentucky Plan were reinstated would in fact be “emission limi-

tations.” It is their position that the intermittent control sys-

tem provides a “flexible” emission limitation which restricts

the amounts of pollutants emitted when atmospheric conditions

require it. Thus, they contend that a system which restricts

emissions of pollutants in any degree, if included in a plan,

would qualify that plan for approval if the other conditions

of Section 110 were met. Furthermore, the petitioners point

out that Section 110(a)(2)(B), in addition to requiring that

a plan include emission limitations, also requires the inclu-

sion of “such other measures as may be necessary to insure

attaininent and maintenance” of air quality standards. It is

contended that “such other measures” refers to alternate con-

trol strategies.

eed

—— —

Nos. 74-2015, 74-2020 Big Rivers Elec., et al.v. EPA 9

The respondent and intervenor NRDC rely on the Fifth

Circuit’s answer to these arguments. That court held that the

Act mandates the use of techniques for emission reduction,

and that the use of other measures is permitted only when

“necessary” in the sense that it is shown that emission re-

duction techniques are “unavailable or infeasible.” 489 F.2d

at 410. A plan which would permit unlimited emissior of

pollutants into existing clean air and require limitation only

when emissions would cause air quality at the location of the

particular polluting source to fall below prescribed standards

would conflict with the congressional policy of nondegredation

under the Fifth Circuit's interpretation of the Act.

On appeal to the Supreme Court, consideration of the

Georgia Plan was limited to the question of whether variances

were to be treated as “revisions” of the plan under Section

110(a)(3) or “postponements” under Section 110(f). Train

v. NRDC, supra, —— U.S. at — (slip opinion at 7-8). The

“tall stack” ruling was not appealed. Nevertheless, the Court

traced the history of national clean air legislation and con-

cluded that “the heart of the 1970 Amendments” is the re-

quirement of Section 110(a)(2)(A) that each state plan pro-

vide for attainment, within three years of its approval, “of

the national primary ambient air quality standards in the

particular State.” Id. at —— (slip opinion at 5). After noting

the requirement of Section 110(a)(2)(B) that a plan in-

clude “emission limitations, schedules, and timetables for com-

pliance with such limitations,” the opinion further noted that

under the statute “it [a State plan] must also contain such

other measures as may be necessary to insure both timely

attainment and subsequent maintenance of national ambient

air standards.” Id. at —— (slip opinion at 5) (emphasis added).

It is clear from this language that other measures may not

be substituted for emission limitations, but may only be

provided in addition thereto.

Thus the question in this case is whether the emission

limitations requirement of Section 110(a)(2)(B) was satisfied

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10 Big Rivers Elec., et al. v. EPA Nos. 742015, 74-2020

by the Kentucky Plan in view of its provision permitting an air

contaminant source to apply an alternate control s‘ratezy

If the requirement was satisfied, the Administrato- was ~¢

quired to approve the Plan as submitted. In Train v. NE. C

the Supreme Court provided a definition of “emission h:n:::-

tions” as follows:

As we have already noted, primary ambient air stan-

dards deal with the quality of outdoor air, and are fixed

on a nationwide basis at levels which the Agency aet>r

mines will protect the public health. It is attainment and

maintenance of these national standards which § L!0/a)

(2)(A) requires that state plans provide. In complying

with this requirement a State’s plan must include “emis-

sion limitations,” which are regulations of the composi-

tion of substances emitted into the ambient air from such

sources as power plants, serv-ce sta'‘ons, and the hke.

They are the specific rules to which opera‘o’s of po!:.-

tion sources are subject and which if enforced should

result in ambient air which meets the national s‘andards.

Id at —— (shp opinion at 16-17).

The key word in this definition is “composition.” The

pertinent definition of “composition” in Webster's Third New

International Dictionary appears to be “the nature of a chemi-

cal compound or mixture as regards the kind and amounts of

its constituents... .” Under this definition a rule or regula-

tion pertaining to sulfur dioxide or any other con.aminant,

would qualify as an emission limitation only if ‘+ regulates

the amount of that kind of material which may be include?

in the emission from a given source.

The petitioners contend that the use of the word “compo-

sition” by the Supreme Court was unfortunate, but the! the

opinion in Train v. NRDC otherwise fully supports thcir po-

sition They rely particularly on the following language:

The Agency is plainly charged by the Act with the re-

sponsibility for setting the national ambient air standar:is.

“5. 74-2015, 74-2020 Big Rivers Elec., et al. v. EPA 11

‘ust as plainly, however, it is relegated by the Act to a

«ondary role in the process of determining and en-

cing the specific, source-by-source emission lim:tations

hich are necessary if the national standards it has set

e to be met. Under §110(a)(2), the Agency 1s re-

aired to approve a state plan which provides for the

timely attainment and subsequent maintenance of am-

hient air standards, and which also satisfies that sect:on’s

cthe: general requirements. The Act gives the Ayency

ro authonty to question the wisdom of a State’s choices

.£ emission limitations if they are part of a plan which

catisties the standards of $110(a)(2), and the Agency

may devise and promulgate a specific plan of its own

only if a State fails to submit an implementation plan

which satisfies those standards. §110(c). Thus, so long

as the ultimate effect of a State’s choice of emission

limitations is compliance with the national standards for

vmbient air, the State is at liberty to adopt whatever

mix of emission limitations it deems best suited to its

particular situation.

~~ U.S. at —— (slip opinion at 17).

‘Ye cannot assume that the word “composition” was impxre-

cory used The language qucted above follows the Court’s

‘onmimuon of emiss‘on limitations and must be read in the

light of it

No plan satisfies the requirement of Section ii0(a)(2)(B)

. rch might be construed to permit a source of pollutant

‘issions to contmue operating beyond the time limit es

ihshed in Section 110(a)(2)(A) without the application

ue or more systems which conirel the “kind and amecunts”

> aY Contaminant emissions. The iimisieens Getermined

be provision of the Kentucky Phin which he disapproved

ceptible of a construction which would perm t stat:

Pomeciues rot cwitiin the ceSmtion of “-missran

ithour a showing that measure, which stefs

j .1* ” - » %

ose ; 1G , by t forays :

‘ fsa VAIADIC, eae 6 46e as 12% oar ACL TITY T-

BERD ict KPT RGR, RES

12 Big Rivers Elec., et al. v. EPA Nos. 742015, 74-2020

tor acted within the scope of his authority, that his decision

was not arbitrary and did not constitute an abuse of discretion

The first purpose of the 1955 Clean Air Act was stated o

be “to protect and enhance the quality of the Nations air

resources... ” 42 U.S.C. § 1857(b)(1). As the Supreme

Court pointed out in Train v. NRDC the states responded slow-

ly to expressions of congressional concern about air pollution

between 1955 and 1970, and “Congress reacted by taking

a stick to the States in the form of the Clean Air Amendmenis

of 1970. ..” —— US. at —— (slp opinion at 2). The

national pchcy 1 to reduce air pollution. Under the dual

scheme, the freedom of the States to choose the manner of

achieving this goal was made subject to the absolute require-

ment that every state plan include emission limitations as an

ingredient N thing in th legislative hnstory of the Act

suggests that the Administrator has misinterpreted the con

gressional will ‘n h’s construction of Section 110(a)(2)(B).

As the Sup eme Court no ed in Train v NRDC, int rpretations

of this complex s'atute by the agency -harged with admin-

istering it are entitled to grea* deference Udall v. Tallman,

380 U.S. 1, 16-18 (1965), McLa env Fleischer, 256 U.S 477,

480 81 (1921). This court finds no reason to substitute its

judgment fo ‘hat of EPA in construing the Act

The petitions for review are demed.

es