Respondents Brief — Hancock v. Train

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No. 74-220 JUL 22 1975

Sit the Supreme Court of the *Anit aie RODAK, JR.CLERK

OcToBeR TERM, 1975

COMMONWEALTH OF KENTUCKY, EX REL. Ep W.

Hancock, ATTORNEY GENERAL, PETITIONER

Russe Ek. Train, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS

ROBERT H. BORK,

Solicitor General,

WALLACE H. JOHNSON,

Assistant Attorney General,

A. RAYMOND RANDOLPH, Jr.,

Deputy Solicitor General,

JACQUES B. GELIN,

ROBERT L. KLARQUIST,

Attorneys,

Department of Justice,

Washington, DC. 20540

ROBERT H. MARQUIS,

General Counsel,

Tennessee Valley Authority,

Knorville, Tenn, 3790?.

HERBERT S. SANGER, Jr.,

Deputy General Counsel,

BEAUCHAMP B. BROGAN,

ivseciate General Counsel,

Tennesace Valley Authority,

Knorville, Tenn, 37902.

INDEX

TRS A Palin ie A SAE

a ER aR fli AER L ed Ia a O

RI aI ees It Re

Statutes and regulation involved_____......._-_-

RR LL RE Ae le

A. Petitioner’s complaint___............---

B. The background of petitioner’s complaint -

1. The regulations of the Kentucky

Air Pollution Control Commis-

sion relating to operating per-

le ee

2. The response of the federal facili-

ties to the state commission’s

request that they apply for

it A ME

3. The advice given to federal facili-

ties by the Environmental Pro-

tection Agency. ..............-

C. The proceedings below. ___......._---_-

I 65 Ci cidinidtitindecctnéiintdinooe

Argument.

Section 118 of the Clean Air Act, as amended

in 1970, does not require federal facilities

to seek and obtain state air pollution con-

trol permits in order to operate within the

A. When read in view of the Act as a

whole, the language in Section 118

directing federal facilities to comply

(1)

sa alas eek ee a

Argument—Continued

with state air pollution “require-

ments’ means only that such facili-

ties must meet state emission stand-

ards or limitations. _..._._._______

B. The legislative history of Section 118

confirms that Congress did not in-

tend to alter the traditional federal-

state relationship by requiring fed-

C. Both the Environmental Protection

Agency, which is charged with the

administration of the Act, and the

President, who is responsible for

assuring compliance by federal

facilities with Section 118, have

interpreted that provision to mean

only that such facilities must meet

state emission standards and

limitations and this interpretation

is entitled to great ~Li,hi_____-

Conclusion

CITATIONS

Cases:

Alabama, State of v. Seeber, 502 F. 2d 1238,

petition for a writ of certiorari pending,

sub nom. Seeber v. Alabama, No. 74-851

Arizona v. California, 283 U.S. 423________.

Black v. Magnolia Liquor Co., 355 U.S. 24__-

Boston Sand and Gravel Co. v. United States,

a as eS

Boys Markets, Inc. v. Retail Clerks Union, 398

U.S. 235

12, 26

RE OR

Cases—Continued

Buckeye Power, Inc. v. Environmental Protec-

tion Agency, 481 F. 2d 162__-...-.-------

Cass v. United States, 417 U.S. 72_.-_.-_---

Chemehuevi Tribe of Indians v. Federal Power

Commission, No. 73-1380, decided March 3,

Duparquet Co. v. Evans, 297 U.S. 216_.------

Federal Power Commission v. Oregon, 349 U.S.

Hadden v. The Collector, 5 Wali. 107_____---

Johnson v. Maryland, 254 U.S. 51___-------

Leslie Miller, Inc. v. Arkansas, 352 U.S. 187-

McCullouch vy. State of Maryland, 4 Wheat.

Mayo v. United States, 319 U.S. 441_--------

Northern States Power Co. v. State of Minne-

sota, 447 F.2d 1143, affirmed, 405 US.

Ohio v. Thomas, 173 U.S. 276.....--.-------

Panama Refining Co. v. Ryan, 293 U.S. 388-

Train v. Natural Resources Defense Council,

No. 73-1742, decided April 16, 1975___---

30)

13, 16, 21, 22, 32

Udall v. Tallman, 380 U.S. 1....--.--------

United States v. American Trucking Associa-

ee is Oe BP, BR cs ccccsnccccecss

United States v. Cooper Corp., 312 U.S. 600_-

Constitution, statutes, and regulations:

United States Constitution:

Article I, Section 8, clause 17___-_------

OEE

Clean Air Act, as amended in 1970, 84 Stat.

1676 et seq., 42 U.S.C. 1857 et seq.:

Section 101(a)(3), 42 U.S.C. 1857 (a)(3)-

Section 107(a), 42 U.S.C. 1857c-2(a) ----

Constitution, statutes, and regulations—Con.

Clean Air Act, as amended—Continued

Section 109, 42 U.S.C. 1857ce-4________

Section 110, 42 U.S.C. 1857e-5_______-

Section 110(a)(1), 42 U.S.C. 1857c-5(a)

¢) ne

Section 110(a)(2)(A)(i), 42 U.S.C. 1857¢-

Bla) (Z)(A)D . .0-0ccnccsenunee

Section 110(e), 42 U.S.C. 1857¢e-5(e)_ ___-

Section 110(e)(1)(A), 42 U.S.C. 1857¢-5

(@)(3)(A) . .. -eccvccoccesepannnnnee

Section 110(e)(2)(A), 42 U.S.C. 1857¢e-5

(e)(3)(A) . . ..--20s0cnnnneee

Section 110(f), 42 U.S.C. 1857c—5(f) _ _ _ _-

Section 110(f)(1), 42 U.S.C. 1857c-5

(11 ¢ )

Section 110(f)(1)(B), 42 U.S.C. 1857¢-5

(b)(1)(B)..... --cesecceencnnnenel

Section 111, 42 U.S.C. 1857c-6_________-

18, 20, 23,

Section 111(a)(2), 42 U.S.C. 1857ce-6

(a)(3) . .. coccacenedenmnnneee

Section 111(a)(3), 42 U.S.C. 1857¢e-6

(a)(%) . . ...20+ccceeuu anne

Section 111(b)(1), 42 U.S.C. 1857¢e-6

(B)(1) . ...ccaccecseeuneennl

Section Ill(ce)(1), 42 U.S.C. 1857¢-6

(c)(1).. . ...sccescennn ene

14,

24, 27

23, 24

Section 112, 42 U.S.C. 1857e-7_ 14, 18, 20, 21, 24

Section 112(a)(1), 42 U.S.C. 1857¢e-7

(a)( 3). ...<scewesnneeeel

Section 112(d)(1), 42 U.S.C. 1857¢-7

C1) ¢ ) I

Section 113, 42 U.S.C. 1857¢e-8_________-

Section 113(a)(1), 42 U.S.C. 1857c-8

(a)(1). ....ccocceneeeeuunanne

Constitution, statutes, and regulations—Con.

Clean Air Act, as amended—Continued

Section 113(a)(2), 42 U.S.C. 1857c-8 pag.

ae 21

Section 113(a)(2)(A), 42 U.S.C. 1857c-8

Dn ctenestdacedeccessccccce~ 21

Section 113(a)(3), 42 U.S.C. 1857c-8

en nce econ 21

Section 113(b)(2), 42 U.S.C. 1857c-8

SE 21

Section 113(c)(1)(A), 42 U.S.C. 1857c-8

a 21

Section 114(a), 42 U.S.C. 1857¢e-9(a)___ _- 21

Section 116, 42 U.S.C. 1857d-1_____- 20, 21, 30

Section 118, 42 U.S.C. 1857f__._.-_---- passim

Section 302(e), 42 U.S.C. 1857h(e)_____- 25

Section 304, 42 U.S.C. 1857h-2_______-- 2,

12, 14, 23, 25, 26, 27

Section 304(a)(1), 42 U.S.C. 1857h-2

a a aa 25

Section 304(f)(1), 42 U.S.C. 1857h-2

hi TE 19, 25, 26

Section 313(2), 42 U.S.C. 1857j-2(2).... 21

Energy Reorganization Act of 1974, 88 Stat.

42 U.S.C. (1964 ed.) 1857h(e)_._....-.----- 26

4 Kentucky Rev. Stat. 77.305 and 77.280

oe +

CE ee 23

Kentucky Air Pollution Control Commission

Regulations:

Regulation AP-1:

EE ee

EE 11

Constitution, statutes, and regu!ations—Con.

Kentucky Air Pollution Control Commis-

sion Regulations—Continued

Regulation AP-1—Continued

|, SE ee ae oe 2, 5, 8, 24

Section 5(2)(b).................-- 7

EE ke 2 6,7

ee ae 7

EF errs ne ee 7

Regulation AP-10:

IS See A Oe

Pets ¢. 28. > ee

EERE aE ence AES so

LL RS See

ES ee Per) ee eee

EE Us «és dilate wits eee

— er

Miscellaneous:

Executive Order 11752, 38 Fed. Reg. 34793-

—

=o)

SSS SB worn B

Frankfurter, Some Reflections on the Reading of

Statutes, 47 Colum. L. Rev. 527 (1947).__- 17

Friendly, Mr. Justice Frankfurter and the

Reading of Statutes, in Benchmarks 207

H.R. 17255, 91st Cong., 2d Sess. (1970) _ _ - _-

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

Sess. (1970) paccceqsesesasdsueserenes 20, 26,

vir

Miscellaneous—Continued

Legislative History of the Clean Air Amend-

ments of 1970, compiled by the Library of

Congress for the Senate Committee on

Public Works, Ser. No. 93-18, 93d Cong.,

2d Sess. (1974) (Committee Print). ______-

Luneburg, Federal-State Interaction Under the

Clean Air Amendments of 1970, 14 B.C. Ind.

& Com. L. Rev. 637 (1973). _.......------

S. Doc. No. 91-10, 91st Cong., Ist Sess. (1969)

(“Air Pollution Abatement by Federal

gg SE A eee ere

S. 4358, 91st Cong., 2d Sess. (1970) _____- 22, 26,

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

Page

Gn the Supreme Gourt of the Gnited States

Ocrosper TERM, 1975

No. 74-220

COMMONWEALTH OF KENTUCKY, Ex REL. Ep W.

Hancock, ATTORNEY GENERAL, PETITIONER

Russet, E. Trarn, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY, ET AL,

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals (App. 157-169)

is reported at 497 F. 2d 1172. The opinion of the dis-

trict court (App. 129-149) is reported at 362 F. Supp.

360.

JURISDICTION

The judgment of the court of appeals (App. 172-

173) was entered on June 5, 1974. The petition for a

writ of certiorari was filed on September 3, 1974, and

was granted on March 17, 1975. The jurisdiction of

this Court rests upon 28 U.S.C. 1254(1).

(1)

QUESTION PRESENTED

Whether Section 118 of the Clean Air Act, as

amended in 1970, requires that federal facilities with

air emission sources obtain permits from the state

air pollution control commission in order to continue

operating or whether Section 118 requires only that

federal facilities comply with state air emission stand-

ards or limitations.

STATUTES AND REGULATION INVOLVED

Section 118 of the Clean Air Act (“the Act”), as

amended in 1970, 84 Stat. 1689, 42 U.S.C. 1857f, is

reproduced in petitioner’s brief at page 8.

Section 304 of the Act, 84 Stat. 1706, 42 U.S.C.

1857h-2, is reproduced in petitioner’s brief at pages

9-11,

Section 5(1) of Kentucky Air Pollution Control

Commission Regulation AP-1 states in pertinent part:

No person shail construct, modify, use, oper-

erate, or maintain an air contaminant source

or maintain or allow physical conditions to exist

on property owned by or subject to the control

of such person, resulting in the presence of air

contaminants in the atmosphere, unless a per-

mit therefor has been issued by the Commis-

sion and is currently in effect.

STATEMENT

A. PETITIONER’s COMPLAINT

Petitioner, the Commonwealth of Kentucky, by and

through its Attorney General, brought this suit on

November 16, 1972, in the United States District

Court for the Western District of Kentucky against

the Environmental Protection Agency (E.P.A.), its

Administrator and its Regional Director; the Depart-

ment of the Army, its Chief of Staff, its Secretary,

the Commanding Generals of Fort Knox and Fort

Campbell and the Commanding Officer of the Lexing-

ton-Blue Grass Army Depot; the Tennessee Valley

Authority (T.V.A.), the Chairman of its Board of Di-

rectors, its General Manager and the Superintendents

of T.V.A.’s Shawnee Power Plant and Paradise

Power Plant; the Atomie Energy Commission

(A.E.C.), the Chairman of its Board of Directors, its

General Manager, the Manager of the A.E.C.’s

Paducah Gaseous Diffusion Plant, and Union Car-

bide Corporation, which operated the A.E.C.’s plant.’

(App. 1-6, 9-14.)

Petitioner alleged that the Army, T.V.A. and A.E.C,

respondents operated facilities within the state that

contained air polluting equipment; that although re-

quested to do so, these respondents had refused to

apply to the Kentucky Air Pollution Control Commis-

sion for permits, as required by the Commission’s

regulations; that these regulations were part of the

state’s plan to achieve and maintain primary and sec-

ondary ambient air quality standards, which pian

E.P.A. had approved pursuant to the Clean Air “ +,

‘The Nuclear Regulatory Commission (NRC) and the

Energy Research and Development Administration (ERD.A)

succeeded to the powers of the Atomic Energy Commission on

January 19, 1975, pursuant to the Energy Reorganization Act

of 1974, 88 Stat. 1233-1254; see 40 Fed. Reg. 3242, 3520. While

ERDA now has responsibility for the Paducah Gaseous Diffu-

sion Plant, which continues to be operated by the Union Car-

bide Corporation under contract, in this brief we shall continue

to refer to “A.E.C.” respondents for the purpose of clarity.

as amended (‘the Act’’); and that respondents had

violated Section 118 of the Act, 42 U.S.C, 1857f, which

required federal facilities to comply with the state’s

permit regulations (App. 17-23). Petitioner further

alleged that although the Administrator of E.P.A. is

empowered under Section 113 of the Act, 42 U.S.C,

1857¢-8, to commence appropriate action against any

person who violates a state implementation plan, the

Administrator had refused to do so with respect to the

other respondents and that this refusal was “so

arbitrary, capricious, unlawful, and unwarranted as

to deprive the citizens of [Kentucky], due process and

equal protection of the law * * *” (App. 25).

B. Tur BackGrRounp of PETITIONER’s COMPLAINT

The background of petitioner’s complaint is as fol-

lows. The Clean Air Act Amendments of 1970, Pub.

lL. 91-604, 84 Stat. 1676, “sharply increased federal

authority and responsibility in the continuing effort to

combat air pollution,” but recognized that each state

had “the primary responsibility for assuring air qual-

ity within the entire geographic area comprising such

State.” Section 107(a) of the Act, 42 U.S.C. 1857¢-

2(a). Train v. Natural Resources Defense Council, No.

75-1742, decided April 16, 1975, slip op. at 2. Pursu-

ant to the Act, the Administrator of the Environmen-

tal Protection Agency established national primary

and secondary standards for “ambient air’’* and the

state submitted plans to E.P.A. designed to imple-

*“Ambient air” is “that portion of the atmosphere, external

to buildings, to which the general public has access.” 40 C.F.R.

o.1(e), See generally 40 C.FLR. Part 50,

ment and maintain these standards within their re-

spective boundaries, as required by Section 110(a) (1)

of the Act, 42 U.S.C. 1857¢-5(a) (1).

1. THE REGULATIONS OF THE KENTUCKY AIR POLLUTION CONTROL

COMMISSION RELATING TO OPERATING PERMITS

The Commonwealth of Kentucky submitted its im-

plementation plan to E.P.A. and the Administrator

approved portions of the plan, while disapproving

others. 37 Fed. Reg. 10842, 10868-10869.° Relevant here

are the approved Kentucky regulations embodied in

the plan that relate to the granting of an operating

permit, which the state defines as “the permission, in

whatever form given, of the [Kentucky Air Pollu-

tion Gotro!] Commission to construct, alter, use,

operate, or maintain an air contaminant source.’ ‘

Kentucky Air Pollution Control Commission Regu-

lation No. AP-1, Section 5(1), effective April 9, 1972,

provides as follows (Pet. App. 46a) :

No person shall construct, modify, use, oper-

ate, or maintain an air contaminant source or

maintain or allow physical conditions to exist

on property owned ———alP

*The United States Court of Appeals later vacated the Ad-

ministrator’s approval of Kentucky's plan on the ground that

interested parties were not given an opportunity to participate

in the Administrator's consideration of the plan. Buckeye

Power, Inc. v. Environmental Protection Agency, 481 F. 2d

162 (C.A 6).

Kentucky thereafter resubmitted its plan and the Adminis-

trator approved it on August 15, 1974. 39 Fed. Reg. 29357.

* Kentucky Air Pollution Control Commission Regulation No.

AP-10, Section 2(2). (This regulation is set forth at page 209

of petitioner's appendix in the court of appeals (hereafter

“A.”).)

by or subject to the control of such person, result-

ing in the presence of air contaminants in the

atmosphere, unless a permit therefor has been

issued by the Commission and is currently in

effect.

The permit application must be on a form provided

by the state Commission and must contain certain

information “when specifically requested by the Com-

mission,” including an “analysis of the characteris-

ties, properties, and volume of the air contaminants

based upon source or stack samples of the air con-

taminants taken under normal operating conditions.” °

Each application for a permit is reviewed by the

Executive Secretary of the Air Pollution Commission,

who either grants or denies the application.’ Prior to

taking such action the Executive Secretary is required

to direct the holding of a formal hearing upon the re-

quest of the applicant; a hearing may also be held at

the Executive Secretary’s own request.’ Also, the

‘‘Executive Secretary will direct the holding of a for-

mal hearing upon receipt of a written request therefor

from the applicant or intervenor filed within thirty

(30) days after the grant or denial of a permit.” *

Any person “whose interests may be affected by a pro-

ceeditig’’ may file a petition to intervene; if the peti-

tion is granted, the intervenor becomes a party for all

purposes.”

‘Section 5(2)(c) of the Kentucky Air Pollution Control

Commission Regulation AP-1 (A. 120); Regulation AP-10,

Section 3 (A. 210).

® Regulation AP-10, Sections 3 and 4 (A. 210).

* Regulation AP-10, Section 4(2) (A. 210).

* Regulation AP-10, Sections 15 and 16 (A. 216-217).

. se ees Oo

A permit application will be denied if the applicant

has failed to supply ‘information required or deemed

necessary by the Commission to enable it to act upon

the permit application.’’*® A permit to construct or

operate will likewise be denied when “the air con-

taminant source will prevent or interfere with the

attainment or maintenance of state or federal air

quality standards.” If the permit is granted, it is

“subject to such terms and conditions set forth and

embodied in the permit as the Commission shall deem

necessary to insure compliance with its standards.” ”

Upon denial of an application for a permit after

a hearing, the applicant apparently may seek judicial

review by maintaining ‘‘a special proceeding in equity

in the cireuit court of the county”; the applicant is

entitled to a trial de novo and may appeal any ad-

verse decision to the Court of Appeals of Kentucky.

4 Kentucky Rev. Stat. 77.305 and 77.280 (1971).

2. TIE RESPONSE OF THE FEDERAL FACILITIES TO THE STATE COMMIS-

SION S REQUEST THAT THEY APPLY FOR STATE PERMITS

The Kentucky Air Pollution Commission appar-

ently believed that its permit regulations applied

to federal facilities, although it is not cbvious on the

face of the regulations that such facilities are in-

eluded.” In the summer of 1972, shortly after Ken-

tucky’s implementation plan became effective, an of-

*° Regulation AP-1, Section 5(2)(c) (A. 120).

“ Regulation AP-1, Section 5(3)(a) (A. 121).

* Regulation AP-1, Section 5(4) (A. 121).

*® The regulations do not specifically mention federal facilities

and Section 5(2)(b) of Regulation AP-1, which sets forth the

ficial of the state’s Air Pollution Control Commission

wrote to the Army, T.V.A. and A.E.C. respondents

requesting them to submit permit applications to the

Commission in regard to their facilities within the

state (App. 35-59). These federal facilities included

the United States Army Armor Center and Fort

Knox, the Lexington-Bluegrass Army Depot, and Fort

Campbell (headquarters of the 101st Airborne Divi-

sion); the A.E.C.’s Gaseous Diffusion Plant, Paducah,

Kentucky, which is one of three production facilities

of the United States operated to supply the national

need for enriched uranium (App. 92); and the

T.V.A.’s Shawnee Power Plant and Paradise Power

Plant (App. 129n.1).

The Army, T.V.A. and A.E.C. respondents replied

to these requests by stating that federal facilities lo-

cated within Kentucky were not required to apply to

the state’s Air Pollution Control Commission for an

operating permit (App. 37-79). However, respondents

expressed their desire to cooperate fully with the

procedures for submitting permit applications, does not clearly

cover facilities of the federal government (A. 120) :

Applications for permits shall be signed by the cor-

porate President, his authorized agent; or by an equiv-

alently responsible officer in the case of organizations

other than corporations; or, in other cases, by the source

owner or operator; or, in the case of political subdivi-

sions, by the highest elected official of such subdivision.

Such signature shall constitute personal affirmation that

the statements made in the application are true and

complete.

Section 5(1). however, seems broad enough to include federal

installations since it requires each “person” to obtain a permit

and person is defined by Section 2(52) of Regulation AP-1

(A. 111) to include any “government agency.”

Commission in the implementation of the Kentucky

plan to abate air pollution.

Thus, for example, the Commanding Officer of the

Lexington-Blue Grass Army Depot, in his letter to the

state Commission, described the steps taken hy the

depot to abate air pollution and extended the follow-

ing invitation: “representatives from state and local

environmental pollution control agencies may visit our

facilities, may examine operating records and may

conduct tests provided security restrictions are met

and the visitors are accompanied by applicable repre-

sentatives designated by Headquarters, US Army

Materiel Command, Washington, D.C.’ (App. 44-45).

The Commanding Officer of Fort Campbell stated his

desire ‘‘to cooperate in every way possible with [the

Commission],’”’ “enclosed * * * pertinent information

on [the Fort’s] heating plants which appear to be cov-

ered by [the Commission’s] regulations,’’ and re-

quested the Commission to inform him ‘if any fur-

ther information is desired’’ (App. 48).

Sinfilarly, the T.V.A., although declining to apply

formally for operating permits, supplied the Commis-

sion “with the same emission data and other informa-

tion for TVA’s Paradise and Shawnee power plants

which [the Commission’s] permit application forms

are designed to elicit from applicants who are re-

quired to secure permits in order to continue their

operations” (App. 52; A. 369-518).

The A.E.C. likewise supplied to the state Commis-

sion the information and data requested on the permit

application form and stated that although it was not

bound to apply for an operating permit, it shared

588-671—75——3

“with the State a deep interest in preventing and

abating both air and water pollution problems and

[was] happy to cooperate as a matter of comity with

the Kentucky Air Pollution Control Commission’’

(App. 37-38).

3.71LE ADVICE GIVEN TO FEDERAL FACILITIES BY THE ENVIRONMENTAL

PROTECTION AGENCY

On October 17, 1972, after further exchanges of

correspondence between respondents and the state

Commission, the Regional Administrator of E.P.A.

sent a letter to ail federal facilities in the region, in-

cluding those operated by respondents, and to the

Director of the Kentucky Air Pollution Control Com-

mission (App. 55-59, 79-82). This letter set forth the

policy of E.P.A. and its interpretation of Section 118

of the Act, 42 U.S.C. 1857f, which the state Commis-

sion had invoked as the basis for requiring respond-

ents to apply for operating permits. The E.P.A. Re-

gional Administrator stated that Section 118 required

federal facilities “to meet state air quality standards

and emission limitations and to comply with deadlines

established in the approved state air implementation

plans” (App. 57). Also, each federal facility should

develop a compliance schedule and should provide

data requested by the state so long as the request is

“reasonable and specific” (id, at 58). “However,’’ the

letter concluded, E.P.A. does ‘‘not believe that Fed-

eral agencies are required to apply for state operating

permits or to register their discharge or emission if

the registration process is in effect a permit applica-

tion that will lead automatically to issuance of a state

permit or license” (ibid.)."

C. THe Procreepincs Below

One month later, petitioner instituted this action

seeking, inter alia, a mandatory injunction against the

Army, T.V.A. and A.E.C, respondents to compel them

to apply for operating permits pursuant to Section 5

of the Kentucky Air Pollution Control Commission's

Regulation AP-1 (App. 31). On cross-motions for

summary judgment, the district court ruled in favor

of respondents and ordered petitioner’s action dis-

missed (Pet. App. la-2la), holding that the language

in Section 118 of the Act, 47 U.S.C. 1857f, which in-

structs federal facilities of the executive, legislative

and judicial branches to comply with state “require-

ments respecting control and abatement of air pollu-

tion,” refers only to the applicable state and local

emission standards and compliance schedules (¢/. at

4a-9a).

The court of appeals affirmed. Reading the language

of Section 118 in light of other provisions of the Clean

The E.P.A. Regional Administrator's letter and the inter-

pretation of Section 118 of the Act embodied therein followed the

interpretation given that provision by the E.P.A. Administra-

tor in his instructions to all regional administrators in 1972.

*® The Chairman of the State Commission advised the Gen-

eral Manager of T.V.A. taat “[t]his action [the suit] was taken

independent of the Commission, and the decision of whether or

not to pursue a formal legal action on this matter is now obvi-

ously out of our hands. I regret that such action has been taken

before the benefit of your response to our earlier inquiry” (App.

77). (The district court held that the state Attorney General

could sue without a request from the Commission although

“the matter is not free from doubt” (Pet. App. 19a).)

Air Act, as amended in 1970, including Section 304

(42 U.S.C. 1857h-2), which allows enforcement suits

to be brought against the federal government, and in

light of the legislative history of Section 118 and its

purposes, the appellate court concluded that (Pet.

App. 33a-34a) :

We do not believe the congressional scheme

for accomplishment of these purposes included

subjection of federal agencies to state or local

permit requirements. Congress did commit the

United States to compliance with air quality

and emission standards, and it is undisputed

in this record that the federal facilities in

Kentucky have cooperated with the Commis-

sion toward this end. The national dedication

to improvement of the environment by pre-

vention and control of air pollution is in no

way impeded by exempting federal agencies

from the permit requirement of Administrative

Regulation No. AP-1, $5.

In reaching its conclusion, the appellate court also

noted that the Supremacy Clause of the Constitution

and the doctrine of sovereign immunity were involved

since a holding that federal facilities must obtain

state permits in order to operate would be so marked a

departure from established principles of federalism

that a court should not lightly infer that Congress in-

tended this result (id. at 29a-30a).

In State of Alabama v. Seeber, 502 F.2d 1238 (C.A.

5), petition for a writ of certiorari pending, sub nom.

Seeber v. Alabama, No. 74-851, another court of ap-

peals, with one judge dissenting, reached the opposite

conclusion, holding that the language of Section 118

indicated that Congress intended federal facilities to

comply with state permit regulations and that any

contrary implications in other provisions of the Act

and Section 118’s legislative history were ambiguous.

SUMMARY OF ARGUMENT

Both petitioner and respondents agree that under

Section 118 of the Clean Air Act, as amended in 1970,

42 U.S.C. 1857f, federal facilities must comply with

state air pollution emission standards or limitations

and compliance schedules. Focusing on the Section

118 phrase ‘‘requirements respecting control and

abatement of air pollution,’’ petitioner argues further

that federal facilities must seek and obtain operating

permits from the state air pollution control commis-

sion. In our view, however, the term ‘‘requirements”

in Section 118 refers only to emission standards or

limitations, which the Act defines to include com-

pliance schedules, and does not comprehend state

permit procedures.

The term *‘requirements”’ is nowhere defined in the

Act. However, it is used in various sections through-

out the Act, including the provision that authorizes ex-

tensions of time in order to meet “‘requirements’’ of

state implementation plans because the technology

needed for compliance is unavailable. 42 U.S.C.

1857c—5. In context, this reference to *‘requirements”

comprehends emission standards or limitations, not

state permit procedures, and recently this Court so

assumed when it discussed the provision in Train v.

Natural Resources Defense Council, supra.

Moreover, in another section the Senate bill, from

which Section 118 is substantially derived, clearly dis-

tinguished between emission “requirements”’ and “ per-

mit’’ procedures in setting forth the provisions that

should be contained in an acceptable state plan for

implementing and maintaining national air quality

standards. This distinction is of course entirely con-

sistent with our reading of the present Section 118.

In two sections of the Act dealing with new sta-

tionary sources and hazardous pollutants, which were

added hy the 1970 amendments, Congress specifically

referred to state “procedures” for implementing

standards set by the E.P.A. Administrator. Yet in both

instances Congress expressly provided that sucn state

implementation procedures (as distinguished from

emission standards or limitations) could not be ap-

plied to federal facilities. 42 U.S.C. 1857¢-6, 1857¢-7.

Most significantly, Section 304, which authorizes

states to sue to enforce provisions of their implemen-

tation plans against federal facilities, provides for

such suits only in regard to violations of emission

standards or limitations. 42 U.S.C. 1857h-2. As re-

vealed by an examination of the Senate version of

Section 118 and the changes made by the Conference

Committee in it and in Section 304, one of Congress’

purposes In enacting Section 304 was to give the siates

a mechanism for enforcing Section 119. Therefore,

the term “requirements”? in Section 118 cannot be

read to include state permit procedures since it would

be unreasonable to believe that Congress imposed upon

federal facilities a duty to obtain such permits and yet

colupletely neglected to furnish the states with any

enforcement tool to assure that federal facilities ful-

fill that duty.

The legislative history of Section 118 reveals that,

with respect to federal facilities, both the House and

the Senate had passed bills to require more stringent

air pollution control and abatement. While the House

version of Section 118 spoke in terms of federal facili-

ties complying with state emission “standards,” the

Senate version used the term ‘‘requirements.’’ But the

Conference Committee, when it consolidated the

House and Senate versions to produce the present

Section 118, rereeived no difference between the two

and stated in its report that both required compliance

with state emission standards. This is hardly surpris-

ing since the Senate report on the bill described its

proposed Section 118 as requiring federal facilities to

meet state “emission standards.” :

On the other hand, if petitioner’s interpretation of

Section 118 were correct, there would have been a

significant disagreement between the House bill, which

referred to “emission standards,” and the Senate

amendments, which referred to “requirements.”’ Yet

such a disagreement was in no way mentioned by the

Conference Committee. That in itself would be sur-

prising, but the Conference Committee's silence on the

point would be all the more remarkable in light of the

fact that the interpretation petitioner urges is such a

sharp break with tradition, as embodied in two cen-

turies of decisions by this Court making clear that

unless Congress clearly provides otherwise, the states

have no power to require federal agencies to obtain

state licenses in order to conduct activities within

state borders.

Moreover, as the Act provides, it is generally the

states’ responsibility to control air pollution from

emission sources within their jurisdiction; one of the

ways a state may choose to do this is through a permit

program. Yet the Conference Committee report ex-

plicitly states that in regard to federal facilities it is

the President’s responsibility to assure that emission

limitations and standards are met. This indicates still

further that federal facilities are not required to ob-

tain state operating permits.

The E.P.A. Administrator is charged with the duty

of administering the Clean Air Act and his inter-

pretation of the Act is entitled to great weight, as the

Court recently held in Train vy. Natural Resources

Defense Council, supra. In regard to Section 118, the

E.P.A.’s interpretation is that federal facilities are

not required to obtain state operating permits; prior

to the filing of this suit, E.P.A. so advised all federal

agencies in Kentucky, including respondents in this

case.

In addition, the President has the responsibility

for assuring compliance by federal facilities with

Section 118 and, in an Executive Order, the President,

too, has interpreted that section as not subjecting such

facilities to state permit procedures.

E.P.A. recently promulgated rules to implement the

President’s Executive Order with respect to air pol-

lution by federal facilities. These E.P.A. rules set

forth detailed reporting, monitoring and compliance

procedures. Whether another system of assuring fed-

eral compliance, such as requiring federal facilities to

obtain state permits, is desirable, is a matter for

Congress to decide. The Administrative Conference

of the United States recently recommended that

rather than subjecting federal facilities to state per-

mit procedures, the most appropriate course is to vest

control and authority over all aspects of environmen-

tal pollution by the federal government in a single

federal agency, which should consider the need for set-

ting up a federal permit program. The wisdom of this

proposal is likewise ultimately for Congress to decide.

ARGUMENT

SEcTION 118 or THE CLEAN AiR Act, AS AMENDED IN

1970, Dors Nor Require FEDERAL Factuitres To SEEK

AND OBTaIn State Ark PoLttution Controt Permits

IN Orper To OPERATE WITHIN THE STATE

In this case the Court has the task of resolving—in

Mr. Justice Frankfurter’s words—a “contest between

probabilities of meaning’’™ of Section 118 of the

Clean Air Act, as amended in 1970, 42 U.S.C. 1857f,

which provides in full:

Each department, agency, and instrumentality

of the executive, legislative, and judicial branches

of the Federal Government (1) having jurisdic-

tion 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

Federal, State, interstate, and local requirements

respecting control and abatement of air pollution

to the same extent that any person is subject

to such requirements. The President may exempt

any emission source of any department, agency,

* Frankfurter, Some Reflections on the Reading of Statutes,

47 Colum. L. Rey. 527, 528 (1947).

or instrumentality in the executive branch from

compliance with such a requirement if he deter-

mines it to be in the paramount interest of the

United States to do so, except that no exemption

may be granted from section 111, and an exemp-

tion from section 112 may be gianted only in

accordance with section 112(c). No such exemp-

tion shall be granted due to lack of appropriation

unless the President shall have specifically re-

quested 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 be for a period not

in excess of one year, but additional exemptions

may be granted for periods of not to exceed one

vear upon the President’s making a new determi-

nation. The President shall report each January

to the Congress all exemptions from the require-

ments of this section granted during the preced-

ing calendar year, together with his reason for

granting each such exemption.

Petitioner argues that the language in the first

sentence of Section 118—‘shall comply with Federal,

State, interstate, and local requirements respecting

control and abatement of air pollution to the same

extent that any person is subject to such require-

ments”’—means that facilities of the executive, legis-

lative and judicial branches of the federal government

must comply not only with state emission standards

and compliance schedules, but also with state pro-

cedures that demand that emission sourees—ineluding

federal facilities—obtain operating permits (Pet. Br.

18-39).

We contend, however, that the phrase means only

that facilities of the executive, legislative and judi-

cial branches operating within the states must comply

with the applicable emission standards and compliance

schedules “ promulgated by the particular state pur-

suant to their E.P.A.-aproved plan to establish and

maintain national air quality standards. See Sections

109 and 110 of the Act, 42 U.S.C. 1857e—4 and 1857¢-5.

Petitioner, stressing the words “requirements re-

specting control and abatement of air pollution” in

Section 118, asserts that it is “clear and unambiguous”’

that state permit procedures are comprehended, so

much so that it is unnecessary for the Court to look

beyond this particular language (Pet. Br. 26-27). But

despite petitioner’s insistence on the “plain meaning”

of Section 118 (td. 16, 23, 26-27), that provision can-

not be considered in isolation; language gains meaning

from its context and an important part of that con-

text is the statute as a whole and the history that pre-

ceded it. “When aid to construction of the meaning of

words, as used in the statute, is available, there cer-

tainly can be no ‘rule of law’ which forbids its use,

however clear the words may appear on ‘superficial

examination.’’’ United States v. American Trucking

Associations, Inc., 310 U.S. 534, 543-544; see also Bos-

ton Sand and Gravel Co. v. United States, 278 U.S.

41, 48; Boys Markets, Inc. v. Retail Clerks Union, 398

U.S. 235, 250; Cass v. United States, 417 U.S. 72,

77-79.

As we discuss below, in light of other provisions of

the Clean Air Amendments of 1970 and the relevant

7 Under Section 304(f)(1), 42 U.S.C. 1857h-2(f) (1), “emis-

sion standard or limitation” means “a schedule or timetable of

compliance, emission limitation, standard of performance or

emission standard,”

legislative history, the meaning of the phrase peti-

tioner emphasizes is hardly a clear command that fed-

eral facilities must seek state operating permits. In-

deed, a fair reading of the statute as a whole leads, we

believe, to the firm conclusion that federal facilities

need not obtain state permits in order to operate. This

is the conclusion reached by E.P.A. in 1972 and by the

President in the Executive Order implementing Sec-

tion 118.

A. WHEN READ IN VIEW OF THE ACT AS A WHOLE, THE

LANGUAGE IN SECTION 118 DIRECTING FEDERAL FACILI-

TIES TO COMPLY WITH STATE AIR POLLUTION “REQUIRE-

MENTS” MEANS ONLY THAT SUCH FACILITIES MUST

MEET STATE EMISSION STANDARDS OR LIMITATIONS

Neither the word “requirements’’ in Section 118

nor the phrase “requirements respecting control and

abatement of air pollution’’ are defined in the <Act.

The phrase itself, however, is used in Section 116 of

the Act, 42 U.S.C. 1857d-1, which provides in part

that states retain authority to “adopt or enforce (1)

any standard or limitation respecting emissions of

air pollutants or (2) any requirement respecting con-

trol or abatement of air pollution’? (emphasis

added)."* As it appears in Section 116, the italicized

* Section 116 continues with an exception that has the ef-

fect of forbidding states from imposing emission standards

that are less stringent than those in effect in an applicable

implementation plan or under Sections 111 or 112, 42 U.S.C.

Is57e-—6 and 1857e-7.

Section 116 was added by the Conference Committee. See

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

Legislative History of the Clean Air Amendments of 1970 is

compiled in two volumes by the Library of Congress for the

Senate Conmittee on Public Works, Ser. No. 93-18, 93d Cong.,

Yd Sess. (1974).)

phrase obviously does not refer to emission stand-

ards; yet the one area of agreement between the par-

ties in this case is that the same phrase, as used in

Section 118, does refer to such standards. Section 116

thus offers little guidance on the meaning of Section

118.

As to the term “requirements’’ in Section 118, this

also appears in other sections of the Act” and, as

this Court has reminded, the “connotation of a term

in one portion of an Act may often be clarified by re-

ference to its use in others.’’ United States vy. Cooper

Corp., 312 U.S. 600, 606. Section 110(e)(1)(A), for

instance, authorizes the E.P.A. Administrator to ex-

tend for two years a state’s three-year deadline for

attaining a national primary air quality standard ”

if he determines, upon timely application by the

state’s Governor, that an emission source is unable to

meet “the requirements of such plan which implement

such primary standard because the necessary tech-

nology”’ is unavailable (emphasis added). As used in

Section 110(e)(1)(A), “requirements” rather plainly

refers to emission standards and compliance schedules ;

it just as clearly does not refer to state procedures

for obtaining a permit, which scarcely demand tech-

nological sophistication.

* Eg., Section 110(e) (1) (A). 110(e) (2) (A), 110(£)(1), 110

(f)(1)(B), 42 U.S.C. 1857e-5(e)—1857c-—5(f): Section 113(a)

(1), 113(a)(2), 115(a) (2) (A), 113(a) (5), 113(b) (2), 115(e¢)

(1)(A). 42 U.S.C. 1857e-8(a)—1857e-8(c): Section 11t(a), 42

U.S.C. 1857e-9(a) ; Section 315(2), 42 U.S.C. 1857j-2(2).

* Section 110(a)(2) (A) (i), 42 U.S.C. 1857e-5(a) (2) (A) (i).

discussed in Train _ Natural Re SOUICES De feuse Councd, SU prd,

slip op. at 22-23.

Accordingly, when the Court recently discussed Sec-

tion 110(e)(1)(A) in Train v. Natural Resources

Defense Council, supra, slip op. at 22-24, it treated the

two-year extension for complying with implementa-

tion plan “requirements’’ as dealing with emission

limitations.” And this definition of “requirements’’ as

used in Section 110(e)(1)(A) is, of course, the same

meaning we contend the term has in Section 118.

Moreover, in listing the necessary aspects of state

implementation plans, the Senate bill* from which

Section 118 is substantially derived, as we later dis-

cuss, distinguished between ‘‘emission requirements”

and compliance schedules, on the one hand, and “ap-

propriate procedures, including, but not limited to

* * * permits” for the operation of the emission

souree,” on the other hand. Again, this is entirely

consistent with our reading of Section 118 that it im-

poses the obligation on federal facilities to meet state

emission standards but does not impose the duty to

obtain state operating permits.

Thus far we have attempted to adhere to Mr.

Justice Cardozo’s instruction that ‘‘the meaning of a

statute is to be looked for, not in any single section,

but in all the parts together and in their relation to

21 See also the Court's treatment of Section 110(f), 42 U.S.C.

is57c—5(f), which concerns postponements for meeting “require-

ments.” Slip op. at, e.g., 21.

22S. 4358, 91st Cong., 2d Sess. (1970).

* Compare /d. Section 111(a)(2)(B) with éd. Section 111(a)

(2)(D) (emphasis added). The Senate report made a similar

distinction. S. Rep. No. 91-1196, 91st Cong., 2d Sess. 12 (1970)

the end in view.” * Our interpretation of Section 118

is, we believe, supported by the provisions of the Act

we have considered to this point. There are still other

sections of the Act that confirm our view, but before

turning to these we should add a word about the

language in Section 118 that directs federal facilities

to comply with state air pollution requirements “to

the same extent that any person is subject to such

requirements.’’ Despite petitioner’s assertions to the

contrary (Brief 20, 34-35), the quoted phrase is of

scant assistance in determining what Congress meant

by “requirements”: it tells only to what extent fed-

eral facilities must comply with the applicable state

provisions but does not say which state provisions are

applicable.

As to the other sections of the Clean Air Act, as

amended in 1970, that are pertinent here, the most

prominent are Section 111, 112 and Section 304.* Sec-

tion 111 deals with standards of performance for “new

stationary sources,’’ that is, buildings or other facili-

ties that are constructed or modified after a certain

time.”* For such new sources, the E.P.A. Adminis-

trator was to promulgate regulations setting stand-

ards of performance,” but under Section 111(¢) (1)

the states could develop their own ‘‘procedure’’ for

** Panama Refining Co. v. Ryan, 293 U.S. 388, 439 (dissent-

ing). See also Duparguet Co. v. Evans, 297 U.S. 216, 218;

Chemehuevi Tribe of Indians v. Federal Power Commission,

No. 73-1380, decided March 3, 1975, slip op. 7-8, and cases

there cited; Friendly, Mr. Justice Frankfurter and the Reading

of Statutes, in Benchmarks 207 (1967).

25 49 U.S.C. 1857e-6, 1857e-7, 1857h-2.

2 See Section 111(a)(2), 111(a)(3), 111(b)(1), 42 U.S.C

1857e-6 (a) (2)-1857¢e-6(b).

27 As he did. See 40 C.F.R. Part 60.

implementation and enforcement. If the Administra-

tor finds the state “procedure” adequate, he may

delegate his authority to the state “ercept with

respect to new sources owned or operated by the

United States.” Ibid. (emphasis added). This excep-

tion in Section 111 confirms that although Congress

intended all federal facilities to meet state emission

standards, it did not intend to make such facilities

submit to state permit procedures—which is, of

course, our view of Section 118.”

Similarly, Section 112 deals with national emission

standards for hazardous air pollutants ” and like See-

tion 111 allows the states to develop their own “proce-

dure” for implementing and enforcing standards

promulgated by the E.P.A. Administrator. But again,

when Congress had the opportunity to subject federal

facilities to such state implementation procedures, it

excluded ‘‘stationary sources owned or operated by the

United States.” Section 112(d)(1), 42 U.S.C.

1857¢-7(d) (1).

Finally, Section 304 of the Act, 42 U.S.C. 1857h-2,

indicates still further that federal facilities are not

* While no “new stationary sources” of the federal govern-

ment are directly involved in this case, we should point out that

Section 5(1) of the Kentucky regulations (see pp. 5-6, supra)

requires a permit before any emission source can be constructed

or modified; under Section 111(c)(1) of the Aet this portion

of the permit regulation is plainly inapplicable to new federal

sources and illustrates further why the term “requirements” in

Section 118 cannot be read to include any provision in a state im-

plementation plan that applies to non-federal facilities.

** Defined as air pollutants to which no ambient air quality

standard is applicable and which may cause an increase in

mortality or “serious irreversible, or incapccitating reversible,

illness.” Section 112(a)(1).42 U.S.C. 1857e-7(a) (1).

ee eS eS

subject to state permit procedures. Section 304(a) (1)

allows “any person”’ to commence an action against the

United States in federal court to enforce “an emission

standard or limitation under this Act” or an order is-

sued by the state or the E.P.A, Administrator “with

respect to such a standard or limitation.” Section 304

is the sole mechanism in the Act for states to remedy

non-compliance by federal facilities with Section 118.”

In defining the ‘‘emission standards or limitations”’

that can be enforced under Section 304, Congress

specifically referred to Section 118 **requirements.”’ *

And Congress also provided that a Section 304 suit

may be brought by ‘‘any person,” which is defined to

include a state or a political subdivision of a state.”

Indeed, that Congress intended the states to utilize

Section 304 to enforce Section 118” is illustrated by

the fact that the Senate’s version of Section 118, which

was substantially enacted, contained a subsection pro-

” Section 113, 42 U.S.C. 1857-8, authorizes the E.P.A. Admin-

istrator to take enforcement action against violators. Also, the

states are not precluded from utilizing actions in state courts to

enforce their implementation plans.

"Section 304(f)(1), 42 U.S.C. 1857h-2(f)(1) (emphasis

added) :

For purposes of this section, the term “emission stand-

ard or limitation under this Act” means—-

(1) a schedule or timetable of compliance, emission

limitation, standard of performance or emission stand-

ard, * * *

Bd % * * *

which is in effect under this Act (/neluding a require-

ment applicable by reason of section 1/8) or under an

applicable implementation plan.

* Section 302(e), 42 U.S.C, 1857h(e).

“See Luneburg, Federal-State Interaction Under the Clean

Air Amendments of 1970, 14 B.C. Ind. & Com. L. Rev. 637, 663

(1973), reaching the same conclusion.

viding that the ‘‘Governor, the attorney general or

any citizen of any State in which any Federal prop-

erty, facility, or activity is located may seek to enforce

the provisions of this section [Section 118] pursuant

to section 304 of this Act.” * The Conference Commit-

tee * eliminated this subsection without comment but

retained in its stead the provision from the Clean Air

Act of 1963 defining ‘‘person”’ to inelude a state * and

added the parenthetical phrase in Section 304(f) (1),

quoted in note 31, supra, making clear that Section 118

was to be enforced through a Section 304 suit.”

Since there is no room for doubt that one of the

purposes of Section 304 was to give the states the

means to enforce Section 118 in federal court against

federal facilities, it is highly significant that the en-

forceable Section 118 “requirements respecting control

and abatement of air pollution’’ are emission stand-

ards or limitations and orders regarding them, not

state procedural regulations r€quiring operating per-

mits. Section 304 thus plainly indicates, as the court

below held (Pet. App. 29a), that Congress believed

Section 118 demanded only that federal facilities

comply with such state standards or limitations. Sec-

tion 118 thus could not have been intended to require

“ S. 4358, 91st Cong., 2d Sess. (1970) (Sec. 7).

“ ILR. Conf. Rep. No. 91-1783, 91st Cong., 2d Sess. (970).

“42 U.S.C. (1964 ed.) 1857h(e).

** Petitioner, as did the court in A/abama y. Seeber, supra,

502 F, 2d at 1248, seems to suggest that Section 304 is inapposite

because it has as its caption “Citizen Suits.” But the heading

“cannot be used to extend or to restrain any positive provisions

contained in the body of the act.” //adden v. The Collector, 5 Wall.

107, 111; Black v. Maguolia Liquor Co., 355 US. 24, 26.

federal facilities to obtain state permits, as petitioner

contends. There is, we submit, simply no reasonable

explanation why Congress would have decided to

impose such a duty on federal facilities and yet at the

same time refuse to provide the states with a Section

304 remedy for noncompliance.

B. THE LEGISLATIVE HISTORY OF SECTION 118 CONFIRMS

THAT CONGRESS DID NOT INTEND TO ALTER THE TRADI-

TIONAL FEDERAL-STATE RELATIONSHIP BY REQUIRING

FEDERAL FACILITIES TO OBTAIN STATE OPERATING

PERMITS

If there remains any degree of doubt about the

proper interpretation of Section 118, even this is re-

moved upon examination of the legislative history of

that provision. Both the House bill“ and the Senate

amendment,” which resulted in the Clean Air

Amendments of 1970, contained provisions to

strengthen the strictures against air pollution by fed-

eral facilities. After considering both versions, the

Conference Committee, in its report, stated the follow-

ing in regard to the final version of Section 118: “

The House bill and the Senate amendment

declared that Federal departments and agen-

cies should comply with applicable standards of

air quality and emissions.

* H.R. 17255, 91st Cong., 2d Sess. (1970) (Sec. 10, amending

Section 111 of the Clean Air Act of 1963).

*S. 4558, 91st Cong., 2d Sess. (1970)(Sec. 7, amending Sec-

tion 111 of the Clean Air Act of 1963 (42 U.S.C. 1857f), redesig-

nated as Section 118).

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

The conference substitute modifies the House

provision to .equire that the President rather

than the Administrator be responsible for

assuring compliance by Federal agencies.

Two things are important about the Conference Com-

mittee’s statement.

1. First, the Conference Committee, in deseribing

the effect of the House and Senate versions of Section

118, stated that there was agreement that federal

facilities must comply with applicable emission stand-

ards and limitations, which is, of course, our inter-

pretation of Section 118. In regard to what this

provision would demand of federal facilities, the Con-

ference Committee significantly indicated no area of

disagreement between the House and Senate.

The Senate version contained language which is

similar to that now embodied in Section 118: federal

facilities ‘‘shall comply with the requirements of this

Act in the same manner as any person must so com-

ply in the administration of such property, facility,

or activity.” “ In its Report, the Senate described the

effect and purpose of this language as follows: ‘*This

section [118] requires that Federal facilities meet the

emission standards necessary to achieve ambient air

quality standards as well as those established in other

sections of Title I.” S. Rep. No. 91-1196, 91st Cong..

2d Sess. 23 (1970) (emphasis added).

The House version, which is also reflected in the

present Section 118, provided as follows: federal facil-

See note 39, supra.

et a see

ities “‘shall comply with applicable Federal, State,

interstate, and local emission standards * * *.’’“” The

House Report stated that this would ‘‘direct Federal

agencies in the executive, legislative, and judicial

branches to comply with applicable Federal, State,

interstate, and local emission standards.’’ H.R. Rep.

No. 91-1146, 91st Cong., 2d Sess. 14-15 (1970) (em-

phasis added).

Thus, although the Senate version spoke in terms

of ‘‘requirements,” as the final Section 118 does, while

the House version talked ef ‘‘emission standards,’’ it

is hardly surprising that the Conference Committee

perceived no difference between the two;“ in formu-

lating what became Section 118, the Committee

therefore simply combined the House and Senate

provisions.

If the Conference Committee had thought that the

Senate amendment and its use of the term ‘‘require-

ments’’ would subject federal facilities to state permit

procedures, while the House bill would not, it is diffi-

eult to imagine why the Committee would not have

alluded to this, particularly in light of the Supremacy

Clause of the Constitution“ and two centuries of

precedent holding that states have no power to require

'*? See note 38, supra.

** Moreover, it was quite logical for the Conference Committee

to read the term “requirements” in the Senate amendment as

equivalent to emission standards since, as we discussed earlier

(p. 22, supra), the Senate used “emission requirement” and “emis-

sion standard” interchangeably throughout its entire bill.

** Article VI, clause 2. See also Article I, sec. 8, cl. 17, in

regard to exclusive federal jurisdiction over forts, arsenals and

other federal buildings within states.

licensts for federal activities to be conducted within

their borders. See McCulloch v. Maryland, 4 Wheat.

316; Ohio v. Thomas, 173 U.S. 276; Johnson v. Mary-

lend, 254 U.S. 51 (state has no power to require fed-

eral employee driving on the state’s roads to obtain a

state license); Arizona v. California, 283 U.S. 423,

451; Mayo v. United States, 319 U.S. 441; Federal

Power Commission v. Oregon, 349 U.S. 435; Leslie

Miller, Inc. vy. Arkansas, 352 U.S. 187. Indeed, this

Court recently affirmed a decision of a court of appeals

holding that a state pollution control agency could not

regulate, through a permit system, radioactive dis-

charges (both air and water) from an A.E.C.-

regulated nuclear power plant. Northern States Power

Co. v. Minnesota. 447 F. 2d 1143 (C.A. 8), affirmed,

405 U.S. 1035.“

2. The second point of importance in the quoted

statement of the Conference Committee report is that

the Committee made the President responsible for

assuring compliance by federal facilities with Section

118. This is still another indication that Congress did

not contemplate requiring federal facilities to obtain

state operating permits. In regard to non-federal fa-

cilities, the states have the responsibility for assuring

compliance, and the Act specifically so provides; “ the

*Tt is therefore well-established, as the cases cited illustrate,

that state regulations or laws cannot, of their own force, require

federal facilities to obtain permits in order to operate within

the state; the states may exercise such authority only if Sec-

tion 118 of the Act authorizes it. In this regard, Section 116 of

the Act, 42 U.S.C. 1857d-1, provides only that the states retain

whatever authority for controlling air pollution they otherwise

would have.

*® Section 101(a) (3), 42 U.S.C. 1857(a) (5).

states, of course, may fulfill this responsibility by de-

vising permit procedures, as Kentucky has done. But

in regard to federal facilities, state permits are not

required and the President has the primary duty to

ensure compliance, as the Conference Committee

stated.

In sum, the legislative history of Section 118 con-

firms our view of the meaning of the statute and this,

together with the analysis of the other provisions of

the Act set forth above, leads to the firm conclusion

that under Section 118 federal facilities are obliged

only to comply with applicable state emission stand-

ards and limitations.

C. BOTH THE ENVIRONMENTAL PROTECTION AGENCY,

WHICH IS CHARGED WITH THE ADMINISTRATION OF THE

ACT, AND THE PRESIDENT, WHO IS RESPONSIBLE FOR

ASSURING COMPLIANCE BY FEDERAL FACILITIES WITH

SECTION 118, HAVE INTERPRETED THAT PROVISION TO

MEAN ONLY THAT SUCH FACILITIES MUST MEET STATE

EMISSION STANDARDS AND LIMITATIONS AND THIS INTER-

PRETATION IS ENTITLED TO GREAT WEIGHT

As the statement of facts in this case indicates (pp.

10-11, supra), in 1972 E.P.A. stated its view, before

petitioner filed suit, that federal facilities were not

required to obtain state operating permits and the

E.P.A. Regional Administrator so advised all federal

facilities in his region, including those involved in

this case. (See also the 1973 letter from the E.P.A.

Administrator, App. 84.) E.P.A has continued to

adhere to this interpretation of Section 118.

On May 6, 1975, the E.P.A. Administrator pub-

lished in the Federal Register a detailed set of guide-

tines for federal facilities in order “to determine the

compliance status of all Federal stationary sources of

air pollutants which are subject to Federal, State, and

local emission limitations and establish firm public

commitments to abate emissions as expeditiously as

practical from those facilities exeeeding limita-

tions.” “” The E.P.A. Administrator, stating that Sec-

tion 118 of the Act required federal facilities to meet

state emission standards, directed federal facilities to

supply tu E.P.A. and state air pollution commissions

various emission data; the Administrator also set up

a detailed procedure for ensuring compliance with

Section 118 through specific timetables which E.P.A.

and the state agencies will monitor.”

As in Train v. Natural Resources Defense Council,

supra, slip op. 25, the interpretation by E.P.A, of

Section 118 is entitled to great weight; E.P.A. is

“charged with the administration of the Act” and, we

submit, its interpretation is not only reasonable, but

also correct in light of the Act as a whole and the

history surrounding it. See also Udall vy. Tallman, 380

U.S. 1, 16-18.

Moreover, as the Conference Committee report

stated, the Act gives the President the responsibility

of ensuring that federal facilities comply with Sec-

tion 118, On December 19, 1973, the President issued

40 Fed. Reg. 20664.

* Jd. at 20664-20665.

Executive Order 11752” concerning the prevention,

control and abatement of environmental pollution at

federal facilities. After stating that the Clean Air Act

and other statutes required federal facilities to comply

with state substantive standards and limitations re-

garding pollution, the Executive Order—agreeing with

the earlier interpretation of Section 118 by E.P.A.—

made clear that 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 admin-

istrative procedures with respect to pollution abate-

ment and control.” ”

Moreover, the Administrative Conference of the

United States has spoken to the issue in this case and

has recently recommended to the President, the Con-

gress, and the Judicial Conference of the United

States various procedures for ensuring compliance by

federal facilities with environmental quality stand-

ards.’ In the view of the Administrative Conference,

the Clean Air Act requires “agencies with control over

federal facilities to comply with both federal and non-

federal pollution control standards,” but the Act does

not “specifically authorize procedures for [its] enforce-

ment where federal facilities are concerned.” * Since

according to the Administrative Conference even a

decision by this Court in favor of petitioner “will

38 Fed. Reg. 34792-34797.

° Id. at 34793. The E.P.A. guidelines issued on May 6, 1975,

implement Executive Order 11752. See 40 Fed. Reg. 20664.

40 Fed, Reg. 27925, 27928 (July 2, 1975).

°2 Jd, at 27928.

leave substantial procedural problems,’’” the Confer-

ence has proposed amending the Act to vest the re-

sponsibility for developing procedures in a single

federal agency which ‘‘should consider the use of

emission control permits where they are not now

employed.” 40 Fed. Reg. at 27928.

In sum, in light of the wording of Section 118, the

other provisions of the Clean Air Amendments of

1970, the legislative history of that section, the amend-

ments as a whole, and the interpretation by E.P.A.

and the President, we submit that federal facilities

are not required by Section 118 to seek and obtain

state operating permits. If a contrary result is

thought desirable, although the Administrative Con-

ference has proposed otherwise, this is a matter for

Congress. Indeed, we are informed that the Subcom-

mittee on Health and Environment of the House Com-

mittee on Commerce is now considering whether

Section 118 should be amended to subject federal

facilities to state permit procedures.

°3 Jhid. The Administrative Conference points out that there

are more than “20,000 [federal] facilities, ranging from huge

military establishments, national parks, and systems of prisons

and veterans’ hospitals to individual fish hatcheries, Coast

Guard stations and research laboratories.” /bid. (For a listing

of the different kinds of federal facilities and their locations,

see S. Doc. No, 91-10, 91st Cong., Ist Sess (1969) (“Air Pollu-

tion Abatement by Federal Facilities”).)

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted.

Rosert H. Bork,

Solicitor General,

Watiace H. Jounson,

Assistant Attorney General,

A. RaymMonp Ranpoupn, Jr.,

Deputy Solicitor General,

JacQues B. GELIN,

Rosert L. KiarQuist,

Attorneys,

Department of Justice.

Rosert H. Marquis,

General Cousel,

Tennessee Valley Authority.

Hersert 8. Sancer, Jr.,

Deputy General Counsel,

Beavucuamp B. Broaan,

Associate General Counsel,

Tennessee Valley Authority.

JuLty 1975.

US. GOVERNMENT PRINTING OFFICE: 1975

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.