Supplemental Brief — Hancock v. Train

7

EE

Supreme Court, !. S.

ZS FII

IN THE —

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-220

COMMONWEALTH OF KENTUCKY, EX REL

ED W. HANCOCK,

ATTORNEY GENERAL, .................. PETITIONER,

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION

AGENCY, ET AL ........ cc cece cece ee eees RESPONDENTS.

SUPPLEMENTAL MEMORANDUM

ED W. HANCOCK

ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 114, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-7600

DAVID D. BEALS

ASSISTANT ATTORNEY GENERAL,

COMMONWEALTH OF KENTUCKY

DAVID C. SHORT

ASSISTANT ATTORNEY GENERAI.

COMMONWEALTH OF KENTUCKY

Room 26, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-3595

COUNSEL FOR PETITIONER.

TABLE OF CONTENTS

Page

SEP BAP GE RORR OED cn cccccsccccsesececsvens ii

SUPPLEMENTAL MEMORANDUM .......... 1-5

CERTIFICATE OF SERVICE ................. 6-7

APPENDICES:

D. Opinion of United States Court of Appeals For the

Fifth Circuit styled “State of Alabama and Ala-

bama Air Pollution Control Commission ex rel.

William J. Baxley, Attorney General v. Lynn

Seeber, General Manager of Tennessee Valley Au-

thority, et al,” rendered October 14, 1974, File No.

PE 6-66-0:606neuecedes6e6u0 eneensesacesedss o< 1d-27d

ii

INDEX TO CITATIONS

Page

CASES:

State of Alabama and Alabama Air Pollution Con-

trol Commission ex rel. William J. Baxley, Attorney

General v. Lynn Seeber, General Manager of Ten-

nessee Valley Authority, et al, United States Court

of Appeals For The Fifth Circuit, File No.

STATUTES:

Section 118, Clear Air Act Amendments of 1970,

Title 42, Section 1857f., U.S.C. ............ 2, 3, 4

Section 110, Clean Air Act Amendments of 1970,

Title 42, Section 1857c-5, U.S.C. .........-0.. 2, 3

Section 304, Clean Air Act Amendments of 1970,

Title 42, Section 1857h-2, U.S.C. ........- ce eees 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, i974

No. 74-220

COMMONWEALTH OF KENTUCKY, EX REL

ED W. HANCOCK,

ATTORNEY GENERAL, .................. PETITIONER,

VS: SUPPLEMENTAL MEMORANDUM

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION

AGENCY, ET AL .............. cc eeeeeees RESPONDENTS.

MAY IT PLEASE THE COURT:

In the Petition For A Writ of Certiorari to the

United Court of Appeal For the Sixth Circuit, filed by

the Commonwealth of Kentucky, ex rel Ed W. Hancock,

Attorney General, and docketed on September 3, 1974, it

was noted there were cases pending in the Courts of Ap-

peals For the Fifth and Ninth Circuits involving issues

identical to those decided in the Sixth Circuit. On Oc-

tober 14, 1974, and since the filing of the Petition herein,

the United States Court of Appeals For the Fifth Circuit

rendered an Opinion and decision in the case of State of

Alabama v. Seeber, Fifth Circuit, File No. 73-2766 (ap-

pears herein at Appendix D, pp 1-27).

2

The decision of the Fifth Circuit embodies an inter-

pretation of the Clean Air Act Amendments of 1970, 42

U.S.C. §1857 et seq., which is in direct and irreconcilable

conflict with the interpretation of this Federal statute

rendered by the Sixth Circuit, which decision is the basis

of this Commonwealth’s Petition. In Seeber, infra, Ap-

pendix D, the Fifth Circuit ruled that Section 118 of the

Clean Air Act Amendments of 1970, 42 U.S.C. §1857f.,

imposed a duty on Federally controlled air contaminant

sources to apply for and obtain air pollution permits from

the State of Alabama and to comply with the elements

of Alabama’s Implementation Plan approved under Sec-

tion 110 of the Act. 42 U.S.C. §1857c-5.

The decision of the Fifth Circuit is at odds with

virtually every significant interpretation of the Clean

Air Act Amendments of 1970 rendered by the Sixth

Circuit. Primarily on the basis of the legislative history,

the Sixth Circuit concluded Section 118 subjected Fed-

eral instrumentalities and agencies only to the “substan-

tive” requirements of Kentucky’s Implementation Plan, a

categorization which did not include Kentucky’s permit

requirement. However, in dealing with the argument in

Alabama v. Seeber, infra, Appendix D, the Fifth Circuit

characterized the procedural-substantive dichotomy as a

“semantical red herring” drawing “no sustenance from

the Act itself,” (Appendix D, p. 15), and accurately

characterized the Sixth Circuit’s examination of legislative

history “a strained reading.” (Appendix D, p. 17). Rath-

er than reaching for significance in a legislative history

which they concluded was ambiguous, the Fifth Circuit

relied “on the words of Section 118, the scheme of the Act

3

as a whole, and what we discern to be the Congressional

purpose, as the best guides to interpreting the section.’

(Appendix D, p. 19). Petitioner herein has argued these

should be, and are, the controlling principles of interpre-

tation, particularly where, as here, the legislative history

is ambiguous. Based on these factors the Court in Seeber

concluded that Federal facilities were subject to Alabama’s

permit requirement (Appendix D, pp. 7-20), a require-

ment substantially identical to that contained in Kentucky's

Implementation Plan.

It has been, and is, petitioner’s contention that an

examination of the legislative purpose of the Clean Air Act

Amendments of 1970, a tracing of the “scheme” for achiev-

ing those purposes through the Act as a whole, and the

plain, unambiguous language of Section 118, lead inalter-

ably to the conclusion that the requirements of a state’s

Implementation Plan, adopted pursuant to Section 110

of the Act, are “requirements respecting control and abate-

ment of air pollution” within the meaning of Section 118.

As such, they are requirements with which Federal facili-

ties “shall comply” under the mandate of Section 118. As

stated by the Court in Seeber ( Appendix D, p. 21):

“... [w]e believe that § 118 does embrace the Alabama

permit requirement. Having reached this conclusion,

the Supremacy Clause is inapplicable because Con-

gress has authorized subjecting federal facilities to

the state regulation involved. . . . Section 118 ade-

quately meets the requirement that Congress ‘affirm-

atively declare its instrumentalities or property sub-

ject to [state] regulation. ...’ ”

With regard to sovereign immunity the same con-

4

clusion is inescapable; if Federal facilities “shall comply”

with a requirements it is absolutely necessary that there be

a remedy for non-compliance. In this regard the Sixth

Circuit relied heavily on Section 304 of the Clean Air Act

Amendments of 1970, 42 U.S.C. §1857h-2, but Section 304

is expressly limited to suits for violation of an “emission

standard or limitation.” Further, this section was designed

for use by “citizens” not by regulatory bodies. As stated

in Seeber (Appendix D, p. 23):

“Even assuming that a state is technically a ‘person

entitled to sue under § 304, see Kentucky v. Ruckels-

haus, supra, and that § 304 does not authorize suits

for violation of permit requirements, it does not follow

that § 118 does not authorize such suits.”

The conflicting interpretations of Section 118 and

the Clean Air Act as a whole rendered by the Fifth and

Sixth Circuits has created an intolerable situation in the

National effort to control and abate air pollution. While

the Fifth Circuit has agreed that Alabama’s permit re-

quirement is the central mechanism by which that state

may meet its responsibilities under the Act (Appendix

D, p. 10), the Sixth Circuit has ruled that an identical ré-

quirement in Kentucky is merely a “procedural” require-

ment outside the mandate of Section 118. This is not a

trifling conflict for it means that Alabama and other states

in the Fifth Circuit may assume their proper regulatory

function but that states in the Sixth Circuit, including

Kentucky, are denied the regulatory powers granted in the

Clean Air Act. So long as Kentucky is denied the use of

its central control and enforcement mechanism it will be

severely hampered in meeting its responsibilities under

5

the Act. And so long as the permit issue remains in con-

flict the Act can be neither effectively nor uniformly ad-

ministered throughout the United States.

We urge that the resolution of this conflict receive

the prompt attention of the United States Supreme Court.

Respecfully submitted,

ED W. HANCOCK

ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 114, Capitol Building

Frankfort, Kentucky 40601

(Telephone [502] 564-7600)

DAVID D. BEALS

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

DAVID C. SHORT

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 26, Capitol Building

Frankfort, Kentucky 40601

(Telephone [502] 564-3595)

COUNSEL FOR PETITIONER.

6

CERTIFICATE OF SERVICE:

The undersigned hereby certifies that the foregoing

SUPPLEMENTAL MEMORANDUM was served by

mailing true copies hereof via United States mail, postage

prepaid, to: Honorable William B. Saxbe, The Attorney

General, Department of Justice, Tenth and Constitution

Avenue, Washington, D. C. 20530; Honorable Wallace H.

Johnson, Assistant Attorney General, Land and Natural

Resources Division, Department of Justice, Tenth and

Constitution Avenue, Washington, D. C. 20530: Honor-

able Walter Kiechel, Jr., Deputy Assistant Attorney Gen-

eral, Land and Natural Resources Division, Department

of Justice, Tenth and Constitution Avenue, Washington,

D. C. 20530; Honorable Martin Green, Section Chief,

Pollution Control Section, Land and Natural Resources

Division, Department of Justice, Tenth and Constitution

Avenue, Washington, D.C. 20530; Honorable James A.

Glasgow, Attorney, Land and Natural Resources Division,

Department of Justice, Tenth and Constitution Avenue,

Washington, D. C. 20530; Honorable Robert L. Klarquist,

Attorney, Appelate Section, Land and Natura] Resources

Division, Department of Justice, Tenth and Constitution

Avenue, Washington, D. C. 20530; Honorable George J.

Long, United States District Attorney, Western District

of Kentucky, Room 211, United State Courthouse, Sixth

and Broadway, Louisville, Kentucky 40202; Honorable

Jacques B. Gelin, Attormey, Appellate Section, Depart-

ment of Justice, Washington, D. C. 20530: Honorable

Kent Frizzell, Assistant Attorney General, Land and

Natural Resources Division, Department of Justice, Wash-

ington, D. C. 20530; Honorable Herbert S. Sanger, Jr.,

7

Deputy General Counsel, Tennessee Valley Authority,

Knoxville, Tennessee 37901; Honorable Robert H.

Marquis, Associate General Counsel, Tennessee Valley

Authority, Knoxville, Tennessee 37901 ; Honorable Beau-

champ E. Brogan, Associate General Counsel, Tennessee

Valley Authority, Knoxville, Tennessee 37901; Honor-

able Justin M. Schwamm, Associate General Counsel,

Tennessee Valley Authority, Knoxville, Tennessee 37901 ;

Honorable G. Wilson Horde, General Counsel, Union

Carbide Corporation, Post Office Box Y, Oak Ridge,

Tennessee 37830; Honorable Andrew P. Miller, Attorney

General, Commonwealth of Virginia, Supreme Court

Building, 1101 East Broad Street, Richmond, Vir-

ginia 23219; Honorable Evelle Younger, Attor-

ney General, State of California, Honorable Foster

Knight, Deputy Attorney General, State of Cali-

fornia, Honorable Robert H. O’Brien, Assistant Attorney

General, State of California, Honorable Nichoias C. Yost.

Deputy Attorney General, State of California. 600 State

Building, 217 West First Street, Los Angeles, California

90012; Honorable John J. Hill, Attorney General, State

of Texas, Honorable Philip K. Maxwell, Assistant At-

torney General, State of Texas, Post Office Box 12548,

Austin, Texas 78711; and Honorable James F. Gordon.

United States District Judge, Western District of Ken-

tucky, United States Courthouse, Sixth and Broadway,

Louisville, Kentucky 40202; Honorable Paul C. Wieck.

Circuit Judge, United States Court of Appeals For the

Sixth Circuit, Honorable Pierce Lively, Circuit Judge,

United States Court of Appeals For the Sixth (Circuiit,

and Honorable Lester L. Cecil, Semimr Circuit Judge

8

United States Court of Appeals For the Sixth Circuit,

608 United States Courthouse Building, Cincinnati, Ohio

45202, all this the _|__ day of November, 1974.

8 e cn ®

WF a

DAVID D. BEALS

Assistant Attorney General

Commonwealth of Kentucky

APPENDIX

ld

APPENDIX “D”

STATE OF ALABAMA and Alabama Air Pollution

Control Commission ex rel. William J. Baxley,

Attorney General, Plaintiffs-Appellants,

Vv.

Lynn SEEBER, General Manager of Tennessee Valley

Authority, et al., Defendants-Appellees.

No. 73-2760.

United States Court of Appeals,

Fifth Circuit.

Oct. 14, 1974.

Appeal from the United States District Court for the

Northern District of Alabama.

Before GODBOLD, SIMPSON and INGRAHAM,

Circuit Judges.

GODBOLD, Circuit Judge:

Plaintiffs appeal from a summary judgment denying

declaratory and injunctive relief and holding that 42

U.S.C. § 1857f, § 118 of the Clean Air Act Amendments

of 1970 (the Act), does not require defendants to comply

with a state requirement, previously approved by the

Environmental Protection Agency, that a written permit

2d

STATE OF ALABAMA v. SEEBER

be obtained for the operation of equipment causing air

pollution. Plaintiffs are the State of Alabama and the

Alabama Air Pollution Control Commission (the Com-

mission). Defendants are the Tennessee Valley Authori-

ty and various TVA officials (hereinafter “TVA”), and

various officers and agencies of the United States Army

(hereinafter “the Army”).’

Rule 1.12 of the Commission, provisions of which are

set out in the margin,? requires obtaining from that body

1. In the District Court the defendants also included officials

of the Environmental Protection Agency. The District Court

dismissed the complaint as to them, and plaintiffs do not

appeal therefrom.

2. 1.12 Permits.

1.12.1 Permits Required.

(a) Permit to Construct. Any person building, erecting,

altering or replacing any article, machine, equipment or

other contrivance, the use of which may cause the issuance

of or an increase in the issuance of air contaminants or the

use of which may eliminate or reduce or control the issuance

of air contaminants, shall first obtain authorization for such

construction from the Director in the form of a Permit to

Construct. A Permit to Construct shall remain in effect un-

til the permit to operate the equipment for which the appli-

cation was filed is granted or denied or the application is

canceled.

(b) Permit to Operate.

(1) Before any article, machine, equipment or other con-

trivance described in paragraph (a) may be operated or

used, a written permit shall be obtained from the Director.

3d

STATE OF ALABAMA v. SEEBER

a written permit for the operation of any equipment the

use of which may cause an increase in air pollution. This

rule is a part of the implementation plan for the control

No permit to operate shall be granted for any article, ma-

chine, equipment or contrivance described in paragraph

(a), constructed or installed without authorization as re-

quired by paragraph (a), until the information required as

presented to the Director and such article, machine, equip-

ment or contrivance is altered, if necessary, and made to

conform to the standards established by the Commission.

(2) Any article, machine, equipment or other contriv- .

ance described in paragraph (a) which is presently operating

(or which is not presently operating but which is capable

of being operated) without a Permit to Operate, may con-

tinue to operate (or may restart) only if its owner or oper-

ator obtains a Permit to Operate prior to a date to be set

by the Director (or prior to restarting).

(3) The Director shall have the authority to decide cases

where an article, machine, equipment, or other contrivance is

not clearly subject to nor exempt from the application of

this Part. In addition, the Director may rule that a par-

ticular article, machine, equipment or other contrivance

is subject to the application of this Part even though it is

exempt from the system according to Sections 1.12.1 and

1.12.2 of this Part. The operator or builder of such an

article, a machine, equipment or other contrivance may ap-

peal the Director’s classification to the Commission, which

shall overrule the Director only if it is shown that he acted

arbitrarily and contrary to the purpose of the Act.

> * . * * * . * * *

(b) The Director shall deny a permit if the applicant

does not present, in writing, a plan whereby the emission

of air contaminants by every article, machine, equipment,

4d 5d

STATE OF ALABAMA v. SEEBER STATE OF ALABAMA v. SEEBER

(1972). Defendants have supplied information concern-

of air pollution formulated by Alabama and approved by : i vn “ies

ing their emissions of air pollutants to the Commission

the Administrator of EPA in accordance with § 110 of the

Act [42 U.S.C. §1857c-5]. See 37 Fed.Reg. 10847-10848 :

or other contrivance described in the permit application,

will be reduced during periods of an Air Pollution Alert,

Air Pollution Warning, and Air Pollution Emergency in

accordance with the provisions of Chapter 2.

(c) Before a Permit to Construct or Permit to Operate is

granted, the Director may require the applicant to provide

and maintain such facilities as are necessary for sampling

and testing purposes in order to secure information that will

disclose the nature, extent, quantity or degree of air con-

taminants discharged into the atmosphere from the article,

machine, equipment or other contrivance described in the

Permit to Construct or Permit to Operate. In the event

of such a requirement, the Director shall notify the appli-

cant in writing of the required size, number and location

of the sampling platform; the access to the sampling plat-

form; and the utilities for operating the sampling and test-

ing equipment.

(d) The Director may also require the applicant to install,

use and maintain such monitoring equipment or methods;

sample such emissions in accordance with such methods, at

such locations, intervals and procedures as may be specified;

and provide such information as the Director may require.

1.12.7 Provision of Sampling and Testing Facilities. A

person operating or using any article, machine, equipment or

other contrivance for which these rules and regulations re-

quire a permit shall provide and maintain such sampling

and testing facilities as specified in the Permit to Construct

or Permit to Operate.

1.12.8 Standards for Granting Applications.

(a) The Director shall deny a permit except as provided

by Section 1.12.9, if the applicant does not show that every

article, machine, equipment or other contrivance, the use

of which may cause the issuance of air contaminants, is so

designed, controlled, or equipped with such air pollution

control equipment, that it may be expected to operate

without emitting or without causing to be emitted air con-

taminants in violation of these rules and regulations.

. > * * > * * * * *

(h) In granting any Permit to Operate, the Director may

allow, as a condition of such permit, for the intermittent

discharge of air contaminants, during startup, shut down,

rate change or load change, in excess of the limitations

specified in these rules and regulations where he finds that

because of the nature of the source there is no practicable

alternative.

1.12.9 Conditional Permit.

(a) The Director may issue a Permit to Construct or a

Permit to Operate subject to conditions which will bring

the operation of any article, machine, equipment or other

contrivance within the standards of Section 1.12.8, in which

case the conditions shall be specified in writing, Commencing

work under such a Permit to Construct or a Permit to

Operate shall be deemed acceptance of all the conditions

specified. The Director shall issue a Permit to Construct

or a Permit to Operate with revised conditions upon receipt

of a new application, if the applicant demonstrates that

the article, machine, equipment or other contrivance can

operate within the standards of Section 1.12.8 under the

revised conditions.

(b) A Conditional Permit may allow an article, machine,

equipment or other contrivance to be operated in violation of

6d .

STATE OF ALABAMA v. SEEBER

and have taken steps to abate those emissions, but they

refuse to apply for permits in the belief that the Act

the conditions of Section 1.12.8 if one of the conditions of

the permit is a definite schedule by which the article, ma-

chine, equipment, or contrivance may attain the conditions

of Section 1.12.8 and be granted a Permit to Operate, and if

the schedule provides for attaining the conditions of Section

1.12.8 at the earliest possible date and is approved by the

Director. A Conditional Permit will be revoked if the

applicant does not submit progress reports to the Director

according to the schedule established by the Conditional

Permit. The Director may further revoke the Conditional

Permit if the progress reports do not show satisfactory pro-

gress as specified by the terms of the Conditional Permit or

if the progress reports are found to be inaccurate.

* * * * > > > * * *

1.12.11 Denial of Application. In the event of denial of

a Permit to Construct or Permit to Operate, the Director

shall notify the applicant in writing of the reason therefor.

Service of this notification may be made in person or by

mail, and such service may be proved by the written ac-

knowledgement of the persons served or affidavit of the

person making the service. The Director shall not accept

a further application unless the applicant has complied with

the objections specified by the Director as its reasons for

denial of the Permit to Construct or the Permit to Operate.

1.12.12 Appeals. Within 10 days after notice by the

Director of denial or conditional approval of a Permit to

Construct or Permit to Operate, the applicant may petition

the Commission, in writing, for a review. The Commission

may sustain or reverse the action of the Director; such order

may be made subject to specified conditions... © =~;

1.12.13 The holder of a Permit under this Part shall'ecom-

7d

STATE OF ALABAMA v. SEEBER

does not subject them to the Rule 1.12 permit require-

ment. We must interpret the Act, and particularly $118,

in order to determine whether that refusal is justified.’

We conclude that it is not. In doing so we reach a result

contrary to decisions of the Sixth Circuit, Kentucky v.

Ruckelshaus, 497 F.2d 1172 (CA6, 1974), and the District

Court for the Central District of California, California v.

Stastny, —— F.Supp. —— (C.D.Cal.1972), appeal dock-

eted, No. 72-2905, CA9, Nov. 6, 1972. The Stastny de-

cision states a conclusion without explication of the sup-

porting analysis. Our reasons for reaching a conclusion

different from the Sixth Circuit appear below

I. Interpretation of § 118

[1] Section 118 of the Act [42 U.S.C. § 1857f] provides:

Each department, agency, and instrumentality of

the executive, legislative, and judicial branches of

ply with conditions contained in such Permit as well as all

applicable provisions of these rules and regulations except

where violations are specifically allowed in accordance

with a Conditional Permit issued under Section 1.12.9.

3. We are left to guess at the District Court’s reasons for

its order granting summary judgment since it gave none.

See Steed v. Central of Ga. Ry. Co., 477 F.2d 1303, 1305 (CAS,

1973), as to the desirability of the court’s stating its grounds

though not required by Rule 56 to do so. Especially is that

true in a case of such national importance as this. Amici

curiae filing briefs in this court include the states of Cali-

fornia, Kentucky, Maine, New York, Ohio and Texas.

8d

STATE OF ALABAMA v. SEEBER

the Federal Government (1) having jurisdiction

over any property or facility, or (2) engaged in

any activity resulting, or which may result, in the

discharge of air pollutants, shall comply with Feder-

al, State, interstate, and local requirements respect-

ing control and abatement of air pollution to the same

extent that any person is subject to such require-

ments. The President may exempt any emission

source ot any department, agency, or instrumentali-

ty in the executive branch from compliance with such

a requirement if he determines it to be in the para-

mount interest of the United States to do so, except

that no exemption may be granted from section

1857c—6 of this title, and an exemption from sec-

tion 1857c—7 of this title may be granted only in

accordance with section 1857c—7(c) of this title.

No such exemption shall be granted due to lack of

appropriation unless the President shall have spe-

cifically requested such appropriation as a part of

the budgetary process and the Congress shall have

failed to make available such requested appropri-

ation. Any exemption shall before a period not in

excess of one year, but additional exemptions may be

granted for periods of not to exceed one year up-

on the President’s making a new determination. The

President shall report each January to the Congress

all exemptions from the requirements of this sec-

tion granted during the preceding calendar year, to-

gether with his reason for granting each such ex-

emption.

The phrase “shall comply with . . . State . . . require-

ments respecting control and abatement of air pollu-

tion to the same extent that any person is subject to such

A

|

9d

STATE OF ALABAMA v. SEEBER

requirements” effectively conveys a Congressional intent

that federal facilities are to be treated equally with private

facilities in the scheme of control established by the Act.

Recognizing that in particular instances such treatment

might prove inconsistent with the national interest, the

section provides for executive exemption from any re-

quirement.

[2] The scheme of the Act as a whole also supports

the conclusion that federal facilities are subject to the

Alabama permit requirement. With respect to existing.

stationary sources of air pollution the Act places the

primary responsibility for setting and enforcing emission

standards or limitations on the states. EPA, pursuant to $

109 of the Act [42 U.S.C. § 1857c-4] establishes primary

and secondary ambient air quality standards, and the states,

pursuant to § 110 [42 U.S.C. § 1857c-5] establish, sub-

ject to approval by EPA, implementation plans geared

to meeting the air quality standards. Such implementa-

tion plans include, inter alia, “emission imitations, sche-

dules, and timetables for compliance with such limitations,

and such other measures as may be necessary to insure

attainment and maintenance” of the air quality standards,

provisions “for establishment and operation of appropri-

ate devices, methods, systems, and procedurés necessary

to (i) monitor, compile, and analyze data on ambient

air quality,” and “necessary assurances that the State

will have adequate personnel, funding, and authority to

carry out such implementation plan.” § 110(a)(2)(B),

(C) & (F). The Alabama permit requirement fs a part

10d

STATE OF ALABAMA v. SEEBER

of the Alabama implementation plan previously approved

in accordance with the provisions of § 110. Indeed, as

inspection of the rule itself indicates, it is not only a

part of the implementation plan but appears to be the

central mechanism by which the Alabama plan provides

ior the gathering of information and the enforcement of

emission limitations necessary to achieve air quality stan-

dards.

Sections 111, 112, and 114 [42 U.S.C. §§ 1857c-6,

1857c-7, and 1857c-9] of the Act explicitly exempt certain

federal facilities from state authority to enforce require-

ments established by EPA pursuant to those sections.‘

4. Section 111 [41 U.S.C. § 1857c-6] provides for establish-

ment by the Administrator of EPA of emission standards

for new sources of air pollution. Subdivision (c)(1) of the

section provides:

“Each State may develop and submit to the Ad-

ministrator a procedure for implementing and enforcing

standards of performance for new sources located in such

State. If the Administrator finds the State procedure is ade-

quate, he shall delegate to such State any authority he

has under this chapter to implement and enforce such

standards (except with respect to new sources owned or

operated by the United States).”

Section 112 [42 U.S.C. § 1857c-7] provides for EPA oN

lishment of emission standards for hazardous air pollutants

not covered by ambient air quality standards. In languags

parallel to that contained in § 111(c)(1), subsection (d)(1)

of § 112 provides for delegation of implementation and en-

forcement authority to the states “except with respect to

lid

STATE OF ALABAMA v. SEEBER

Those sections deal with specialized emission standards

for new sources and hazardous pollutants and with record-

keeping, inspection and monitoring requirements estab-

lished directly by EPA. In view of these explicit exemp-

tions for federal facilities, particularly the exemp-

tions in §§ 111 and 112, which like § 110 establish control

schemes for certain classes of air pollution sources, the

absence of any such exemption in § 110 suggests that

the provisions of implementation plans adopted and ap-

proved pursuant to that section, including provisions for

state enforcement of emission limitations through permit.

systems, are applicable to federal facilities.

[3] The general scheme that emerges from the Act as

stationary sources owned or operated by the United States.”

Section 114 [42 U.S.C. § 1857c-9] provides in part:

Ҥ 1857c-9. Recordkeeping, inspections, monitoring, and

entry—Authority of Administrator or authorized repre-

sentative

“(a) For the purpose (i) of developing or assisting in

the development of any implementation plan under sec-

tion 1857e—5 or section 1857-—6(d) of this title, any

standard of performance under section 1857-—6 of this

title, or any emission standard under section 1857c—7 of

this title, (ii) of determining whether any person is in

violation of any such standard or any requirement of

such a plan, or (iii) carrying out section 1857h—1 of this

title—

(1) the Administrator may require the owner or

operator of any emission source to (A) establish and

maintain such records. (B) make such reports, (C:

install, use, and maintain such monitoring equipment

12d

STATE OF ALABAMA v. SEEBER

a whole appears to be that responsibility and authority

for enforcement with respect to federal facilities is grant-

ed to the states for sources with respect to which state

implementation plans establish the criteria for enforcement,

and is granted to EPA in those instances (¢. e., new sources

and hazardous pollutants) where EPA establishes the

criteria. The scheme is a reasonable one. Because of

variations in air quality between states and regions the

emissions criteria established under state plans may vary

considerably, thus making enforcement by EPA against

scattered federal facilities administratively difficult. The

new source and hazardous pollutant criteria established

by EPA, however, are not tied to air quality standards

and may, therefore, vary little or not at all by area, mak-

or methods, (D) sample such emissions (in accordance

with such methods, at such locations, at such intervals,

and in such manner as the Administrator shall pre-

scribe), and (E) provide such other information as he

may reasonably require; and

(2) the Administrator or his authorized representative

upon presentation of his credentials—

(A) shall have a vight of entry to, upon, or through

any premises in which an emission source is ‘ocated

or in which any records required to be maintained under

paragraph (1) of this section are located, and

(B) may at reasonable times have access to and copy

any records, inspect any monitoring equipment or meth-

od required under paragraph (1), and sample any emis-

sions which the owner or operator of such source is re-

quired to sample under paragraph (1).

13d

STATE OF ALABAMA v. SEEBER

ing EPA enforcement against federal facilities more con-

venient.

The Congressional purpose in enacting § 118 sup-

ports our reading of the Act. The legislative history in-

dicates that Congressional displeasure with the perform-

ance of federal facilities under the then existing pro-

visions of the Air Quality Act of 1967 prompted the en-

actment of § 118. In hearings on the Clean Air Amend-

ments of 1970, the Senate Public Works Committee found

“many incidents of flagrant violation of air and water

pollution standards by Federal facilities; S.Rep. No. 91—

1196, 91st Cong., 2d Sess., at 23 (1970). Additional!y

the Cominittee noted,

Federal agencies have been notoriously laggard in

abating pollution and in requesting appropriations to

develop control measures. . . .

Enforcement procedure by State; delegation of

authority of Administrator to State; power of

Administrator unaffected

“(b)(1) Each state may develop and submit

to the Administrator a procedure for carrying

out this section in such State. If the Administra-

tor finds the State procedure is adequate, he

may delegate to such State any authority he has

to carry out this section (except with respect to

new sources owned or operated by the United

States ).”

Id. at 37. See also, H.Rept. No. 91—1146, 91st Cong.,

2d Sess., in 1970 U.S.Code Cong. & Admin. News at 5360.

Section 111 of the prior Act relied primarily on voluntary

14d

STATE OF ALABAMA v. SEEBER

compliance by federal facilities. In strengthening the Act

by replacing that section with present § 118 Congress

sought to depart from the policy of voluntary compliance

and make emission limitations enforceable against federal

facilities. With respect to existing sources the Act places

upon the states primary responsibility for establishing

and enforcing emission limitations, and Alabama, like

many other states, relies on a permit system as its method

of enforcement as well as a method of generating in-

formation concerning emissions. To deny the applicability

to federal facilities of that permit requirement would be

fantamount to a return to the Congressionally-rejected

policy of voluntary compliance by federal! facilities.®

Moreover a holding that § 118 does not embrace permit

systems would represent a retreat from the provisions of

prior § 111. That section allowed the Secretary of HEW

to establish classes of pollution sources for which feder-

al facilities could be required to obtain a permit from

the Secretary. Since § 118 does not distinguish between

federal and state requirements, holding state permit

systems outside the scope of § 118 would imply the same

conclusion with respect to any federal permit system.

5. Defendants argue that the state could seek to enforce its

emission limitations by resort to court actions under the

“citizens suits” provision, § 304 [42 U.S.C. §1857h-2] of

the Act. Irrespective of the merits of this suggestion, we

believe that § 304 provides little guidance to determining

the Congressional purpose in enacting § 118. Our reasons

are discussed in Part III infra.

15d

STATE OF ALABAMA v. SEEBER

The result would be that the Administrator of EPA (who

assumed responsibility for air pollution control activities

when EPA was established) could not under the stronger

§ 118 do what the Secretary of HEW was explicitly en-

titied to do under the prior § 111.

Defendants seek to avoid the impact of § 118 by

crigrafting upon it a substantive-procedural overlay. They

argue that the phrase “requirements respecting control

and abatement of air pollution” means only requirements

such as emission standards and limitations, which they

label “substantive,” and does not include mechanisms, e. g.,

permit systems, for enforcing these requirements.’ Hav-

ing affixed these new labels, defendants would have us

infer that while federal agencies must, and will, comply

with the “substantive,” it was not intended that they

be bound by the “procedural,” a term which in defendants’

construct is sub-silentio pejorative, impliedly denigrat-

ing the Congressionally-mandated mechanisms of enforce-

ment to a status of less dignity and import. This re-

characterization of the statutory scheme is a semantical

red herring. It draws no sustenance from the Act itself.

No such limitation is apparent from the words of § 118.

Moreover the language of § 116 [42 U.S.C. § 1857d-1]

is inconsistent with defendants’ reading of “requirements.”

6. This approach necessarily leads them to de-emphasize the

remainder of the phrase, which reads “to the same extent

that any person is subject to such requirements.”

16d

STATE OF ALABAMA v. SEEBER

There Congress used words identical to the § 118 “re

quirements” phrase.

Except as otherwise provided . . . nothing in this

chapter shall preclude or deny the right of any State

or political subdivision thereof to adopt or enforce

(1) any standard or limitation respecting emissions

of air pollutants or (2) any requirement respecting

control or abatement of air pollution... .

The “or” in § 116 is clearly disjunctive. Therefore, con-

trary to the position of the defeiudants, ‘“reauirements”

must include more then emission standards or limitations.

Vinally if § 118 did not extend to enforcement mechanisms,

it would be difficult to understand why Congress explicit-

ly afforded exemptions from state enforcement in §§ 111

and 112. Both sections provide that if the Administrator

finds a state-developed procedure for implementing and

enforcing the emission standards and limitations developed

hy EPA under those sections adequate, “he shall dele-

gate to such State any authority he has under this chap-

ter to implement and enforce such standards” except with

respect to federal facilities. If § 118 did not include en-

forcement mechanisms, there would be no need for these

exemptions.

In Kentucky v. Ruckelshaus, supra, the Sixth Circuit

picked up the defendants’ substantive-procedural rechar-

acterization and held that § 118 is limited to “substantive”

requirements, a category from which it excluded permit

systems. As we read its opinion, that court’s conclusions

rest on these factors: the ability of states to sue federal

17d

STATE OF ALABAMA v. SEEBER

facilities under § 304 [42 U.S.C. § 1857h-2] of the Act;

statements contained in the legislative history; and the

lack of support in Executive Orders for the contention

that § 118 includes “procedural” permit requirements.

With deference, we find these factors unconvincing. The

inference from § 304 is discussed infra at Part III; the

icgislative history is discussed below in this section of our

opinion ; and Executive Order No. 11752 is discussed infra

at Part IV."

Defendants’ principal attempt to justify their position,

and one of the factors relied on by the Sixth Circuit in its

decision, consists of what seems to us a strained reading

of the Act’s legislative history. They rely on the brief

summary of § 118 contained in the Conference Report,

H.Rep. No. 91-1783, 91st Cong,, 2d Sess., at 48 (1970),

U.S.Code Cong. & Admin.New, p. 5381, which reads,

“The House bill li and the Senate amendment declared that

Federal departments and agencies should comply with

applicable standards of air quality and emissions. ” Taken

m isolation this statement would seem to suggest, that

“requirements” means emission limitations, but other fac-

tors lead us to assign it little weight. In 1 response to the

problem of inadequate compliance by federal facilities

7. The Sixth Circuit also noted the “lack of support” for

plaintiffs’ interpretation of § 118 in Executive Order No.

11507. That Order was promulgated in February 1970,

while the Clean Air Act Amendments were not approved

until December 31, 1970.

18d

STATE OF ALABAMA v. SEEBER

with air pollution control measures the House of Repre-

sentatives passed H.R. 17255 requiring that federal facili-

ties “comply with applicable Federal, State, interstate, and

local emission standards and with the purposes of this

Act. . . .” The bill passed by the Senate, S. 4358,

however, stated that federal facilities “shall comply with

the requirements of this Act in the same manner as any

person must socomply. . . .” As reported by the Con-

ference and as enacted in Public Law 91-604, the final pro-

vision requires that federal facilities “comply with Feder-

al, State, interstate and local requirements respecting

cuntrol and abatement of air pollution to the same ex-

tent that any person is subject to such requirements.” The

change from “emission standards” in H.R. 17255 to “re-

quirements” in the final version supports the more in-

clusive view of § 118. Given the change in language from

“emission standards” in the House bill to “requirements”

in the final version, the apparent attempt to put federal

f-.cilities on the same footing as any other person, the lack

of any apparent limitation in the language of § 118 itself

or any discussion of such a limitation anywhere in the

iegislative history, and the scheme of the Act as a whole,

we believe that the Conference Report statement is more

accurately read as a statement of the ultimate goal of the

provision rather than as a road map of how to get there.

No one disputes that the goal of § 118 is to assure compli-

ance by federal facilities with air quality and emission

standards. The question is rather whether Congress in-

tended that the enforcement mechanisms of federally

19d

STATE OF ALABAMA v. SEEBER

approved state implementation plans, in this case permit

systems, would be used as a method of achieving this

goal. And with regard to this question the legislative

history, except to the extent that it reveals the Congression-

al purpose discussed earlier, is ambiguous.’ Confronted

with this ambiguity, we rely on the words of § 118, the

scheme of the Act as a whole, and what we discern to be

the Congressional purpose, as the best guides to interpret-

ing the section.

Finally defendants suggest that allowing states to

8. Other bits and pieces of legislative history are similarly

inconclusive. Some statements resemble the Conference Re-

port statement quoted in the text. See Library of Congress

for the Senate Comm. on Public Works, 93d Cong., 2d Sess.,

A Legislative History of the Clean Air Amendments of 1970

(Comm. Print 1974) at 423 (S.Rep. No. 91-1196, supra, at 23;

“This section requires that Federal facilities meet the emis-

sion standards necessary to achieve ambient air quality

standards as well as those established in other sections of

Title I.”) ; 894 (H.Rep. No. 91-1146, supra: “The legislation

directs Federal agencies . . . to comply with applicable

Federal, State, interstate, and local emission standards.”) ;

904-905 (H.Rep. No. 91-1146, supra: statement paralleling

that cited at 894.). Other statements appear to imply that

§ 118 should be given an expansive interpretation. See /d.

at 131 (Sen. Muskie’s Summary of the Conference Agree-

ment: “The agreement requires Federal facilities to con-

trol air pollution.”) ; 459 (S.Rep. No. 91-1196, supra, at 59:

“This section directs that all Federal agencies shall comply

with the requirements of the Act just as a nonfederal agency

or individual must do in the adminisration of any real pro-

perty or facility and in the conduct of any activity.”).

20d

STATE OF ALABAMA v. SEEBER

subject federal facilities to the procedural requirements

contained in state implementation plans would be unduly

burdensome. This argument is substantially undermined

Ly the defendants’ contention that even absent subjection

to the permit requirement they are bound to, and will,

comply with substantive emission limitations, compliance

schedules, information gathering and monitoring require-

ments. Some burden may remain, but under the scheme

enacted by Congress determination of whether that bur-

den is undue, and relief if it is, is a matter for executive

rather than judicial decision. Section 118 itself authorizes

the President to exempt federal facilities from any state

requirement “if he determines it to be in the paramount

interest of the United States to do so.°

II. The Supremacy Clause

[4] The TVA defendants do not claim sovereign im-

munity from suit but do claim that TVA, as an “agency

and instrunientality of the federal government,” is exempt-

ed from state regulation by the Supremacy Clause, Art.

V1, Clause 2 of the United States Constitution. The Army

similarly invokes the clause. On the strength of this argu-

ment, the Sixth Circuit recently held in Kentucky v. Ruck-

elshaus, supra, that Kentucky cannot compel TVA’s com-

pliance with a Kentucky air pollution control permit sy-

9. Except that he may not grant an exemption “due to lack

of appropriation” unless the appropriation was requested

by the President and denied by the Congress.

ee ee ee

21d

STATE OF ALABAMA v. SEEBER

stem. That holding was premised on the Sixth Circuit's

conclusion that § 118 was limited to “substantive” require-

ments and thus did not authorize subjecting federal facili-

ties to the Kentucky permit requirements. Absent the § 118

authorization, the Supremacy Clause barred state enforce-

ment of the requirement. Given the premise, we would not

disagree with the conclusion. It is on the proper interpre-

tation of § 118 that we part company with the Sixth

Circuit. For the reasons explicated in Part I supra, we

helieve that § 118 does embrace the Alabama permit re-

quirement. Having reached this conclusion, the Suprem-

acy Clause is inapplicable because Congress has author-

ized subjecting federal facilities to the state regulation

involved. “Tt lies within Congressional power to authorize

regulation . . . by the state of federal instrumen-

talities.” Mayo v. United States, 319 U.S. 441, 446, 63

S.Ct. 1137, 1140, 87 L.Ed. 1504, 1508 (1948). Section

118 adequately meets the requirement that Congress “af-

firmatively declare its instrumentalities or propetty subject

to [state] regulation. . . .” Id. at 448, 63 S.Ct. at

1141, 87 L.Ed. at 1509. Cf. Baltimore National Bank v.

State Tax Commission, 297 U.S. 209, 56 S.Ct. 417, 80

L.Ed. 586 (1936). Morédvet, it 1 at least arguable that

the regulation involved here is as much federal] regulation

2s state. The Alabama permit requirement was included

in an implementation plan approved by EPA under § 110

of the Act. The Act gives EPA power to enforce any im-

plementation plan requirements. § 113, and also provides

for citizen suits in federal courts to enforce at least some

22d

STATE OF ALABAMA v. SEEBER

such requirements, § 304. Neither of these provisions is

consistent with the view that the components of approved

implementation plans are exclusively state regulations.

III. Sovereign Immunity

[5] Distinct from the Supremacy Clause issue, the

Army defendants argue that as against therm this action

is barred by the sovereign immunity of the United States

from suit. Our determination of the meaning of § 118

also forecloses this contention. That section states that

federal facilities “shall comply” with state “requirements

respecting control and abatement of air pollution,” a

phrase which we interpret to include the Alabama permit

requirement. This statement occurs in the context of an

Act which relies in the first instance on state enforcement

of such requirements after their approval by EPA.” Little

or no inference is required to conclude that § 118 em-

bodies a waiver of sovereign immunity with respect to

federal facilities. A contrary result would render large,

ly meaningless our conclusion as to the scope of § 118 and

herald a return to the policy of voluntary compliance which

Congress sought to change by enacting that section.

10. Thus, § 101(a)(3) declares “the prevention and control

of air pollution at its source is the primary responsibilty of

States and local governments . . .,” and § 110(a)(2)(F)

(i) requires state implementation plans to contain “assur-

ances that the State will have adequate personnel, funding,

and authority to carry out such implementation plan.”

23d

STATE OF ALABAMA v. SEEBER

The defendants contend in an argument accepted by

the Sixth Circuit that § 304 authorizes suits against the

United States for violation of an “emission standard or

limitation,” as therein defined, or an order with respect

thereto; that it does not authorize suits for failure to

comply with permit requirements; and that, therefore,

we should infer that Congress did not consent to suits

against federal facilities regarding permit requirements.

The argument is unconvincing. Even assuming that a

s!ate is technically a “person” entitled to sue under § 304,

see Kentucky v. Ruckelshaus, supra, and that § 304 does

not authorize suits for violation of permit requirements,

it does not follow that § 118 does not authorize such suits.

The “Citizens Suits” heading of § 304, the fact that

§ 304(d) provides for awarding attorney fees, and the

legislative history of the section” demonstrate that the

congressional focus in enacting that provision was on suits

by private parties. Consequently, we believe that § 304

cannot be properly read as implying anything about the

ability of states to sue under § 118.

IV. Executive Order No. 11752

[6] Alabama initially sought to rely on language con-

tained in Executive Order No. 11507, 35 Fed. Reg. 2573

11, Seee. g., A Legislative History of the Clean Air Amend-

ments of 1970, note 8, supra, at 127 (Remarks of Sen. Muskie

on the Conference Report: “The bill extended the concept

of public participation to the enforcement process.”) ; 205-206

(Conference Report) ; 436-439 (Senate Report).

24d

STATE OF ALABAMA v. SEEBER

(1970), note following 42 U.S.C.A. § 4331 (1973), as an

alternative basis for requiring federal facilities to comply

with the state permit requirement. That Order has since

been superseded by Executive Order No. 11752, 38 Fed.

Reg. 34793 (1973), note following 42 U.S.C.A. § 4331

(Supp.1974), which includes the following statement:

Section 1. Policy. It is the purpose of this order

to assure that the Federal Government, in the design,

construction, management, operation, and mainten-

ance of its facilities, shall provide leadership in the

nationwide effort to protect and enhance the quali-

ty of our air, water, and land resources through com-

pliance with applicable standatds for the prevention,

control, and abatement of environmental pollution

in full cooperation with State and local governments.

Compliance by Federal facilities with Federal, State.

interstate, and local substantive standards and sub-

stantive limitations, to the same extent that any

person is subject to such standards and limitations,

will accomplsh the objective of providing Federal

leadership and cooperation in the prevention of en-

vironmental pollution. In light of the principle of

Federal supremacy embodied in the Constitution,

this order is not intended, nor should it be interpreted,

to require Federal facilities to comply with State or

local adminstrative procedures with respect to vollu-

tion abatement and control.

The new Executive Order will not support the plairi-

tiffs’ argument. But it does not foreclose the argument

based on § 118. While the Order seeks to further “the

purpose and policies of the Clean Air Act,” it does not pur-

em tee ee

25d

STATE OF ALABAMA v. SEEBER

port to be an authoriative administrative interpretation

ot that section” but is instead an independent order based

on the executive authority of the President over federal

employees and facilities. It cannot, of course, modify an

Act of Congress, nor does it appear to be an exercise of the

authority granted the President under § 118 to exempt

federal facilities from certain requirements. Exercise of

12. TVA contends that EPA has officially interpreted § 118

as not requiring federal facilities to comply with state per-

mit requirements. TVA refers us to a 1972 letter to it from

the Regional Administrator of EPA and a 1973 memorandum

to federal departments and agencies from the Administrator.

These documents indicate an EPA position that federal

facilities need not obtain permits, a fact which we have

duly noted in reaching our decision, but because they offer

no reasoning to support that position, they provide slight

guidance. The 1973 memorandum, moreover, contains the

following statement:

“{I}f a State’s compliance schedule process is based on

a permit system, 1 would ask that your facilities provide

the State with the required information on its registra-

tion form. I believe the form should be signed to verify

the data, but with an appropriate disclaimer to mak«

it clear that the facility is not applying for a permit. (fi

you have instructed your facilities to apply for a State

permit, the disclaimer would, of course, be unnecessary.)

As you know, there are several court cases now under-

way to determine the legality of State permits for Feder-

al facilities. I believe that while the courts resolve this

issue the Federal government should proceed with great

urgency to ensure that every source in violation of air

quality standards and emission limitations is covered

26d

STATE OF ALABAMA v. SEEBER

that authority contemplates a case by case determination

that the exemption is “in the paramaunt interest of the

United States.”’ It does not authorize a blanket exemption

of all federal facilities from specified requirements, and we

do not construe Executive Order 11752 as an attempt

to provide such an exemption.”

The judgment of the District Court is reversed and

by an approved compliance schedule and that resources

and funds are marshalled in order to adhere to these sche-

dules.”

The parenthetical statement seems to imply that EPA does

not oppose in principle requiring state permits for federal

facilities, and the reference to cases under way appears to

indicate an attitude of deferring to the courts on the proper

interpretation of § 118.

13. The Executive Order itself appears to recognize the ne-

cessity for a case by case determination. Section 5 thereof

delegates to the heads of federal agencies and the Ad-

ministrator of EPA the power to “identify facilities or uses

thereof” which are exempted from air qualtiy standards and

emission limitations effective under the Clean Air Act and

applicable under Section 4 of the Executive Order. Exercise

of this power of exemption with respect to a facility would

render moot any state permit requirement with respect to

that facility since the necessity for a permit derives from

the emission limitation requirement.

1. See also People of Sate of Calfornia v. Captain Stastny,

C.O. of Long Beach Naval Air State, C.D.Cal.1972, ——

F Supp. ——, presently pending on appeal to the Ninth

Circuit, appeal docketed November 6, 1972, No. 72-2905.

27d

STATE OF ALABAMA v. SEEBER

the cause remanded for further proceedings not incon-

sistent with this opinion.

SIMPSON, Circuit Judge (dissenting) :

With deference, I dissent. I would affirm the dis-

trict court on the authority of the Sixth Circuit decision,

Commonwealth of Kentucky ex rel. Hancock v ®uckels-

haus, Administrator, etc., et al., 6 Cir. 1974, 497 F.2d

1172,' affirming Commonwealth of Kentucky ex rel. Han-

cock v. Fri, W.D.Ky.1973, 362 F.Supp. 360.

Without a clearer expression than I discern either in

Section 118 [Title 42, U.S.C. § 1857f] or in the Act’s in-

conclusive legislative history, I am unwilling to attribute

to Congress an implied consent for the several states to

apply state permit requirements to facilities operated

within their borders by agencies and instrumentalities of

the federal government, here specifically the Department

of th Army and The Tennessee Valley Authority. Specu-

lation and conjecture, however persuasively set forth,

should not override the Supremacy Clause, Art. VI,

Clause 2, of the United States Constitution.