Amicus Brief — Hancock v. Train

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

Vv.

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents

eo o *

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

* * *

BRIEF OF THE STATE OF TEXAS,

AMICUS CURIAE IN SUPPORT OF PETITIONER

* * *

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney

General

PHILIP K. MAXWELL

Assistant Attorney General

Supreme Court Building

Austin, Texas 78711

(512) 475-4143

June, 1975 ATTORNEYS FOR AMICUS CURIAE

STATE OF TEXAS

SUBJECT INDEX

Page

INTEREST OF AMICUS CURIAE,

oy yy fo my: ) See ee ee ee l

ARGUMENT AND AUTHORITIES ...... 4-11

1. ASTATE PERMIT PROGRAM IS

CLEARLY A “REQUIREMENT RE-

SPECTING CONTROL AND ABATE-

MENT OF AIR POLLUTION” WITH

WHICH THE FEDERAL GOVERN-

MENT MUST COMPLY UNDER 42

U.S.C, SECTION 1857f 4

Il. NEITHER THE SUPREMACY CLAUSE

NOR THE DOCTRINE OF SOVEREIGN

IMMUNITY ARE APPLICABLE TO

THIS CASE ... 2-500 cceecsees 8

TE, COPLEAMION ccc cer ccesicceees 12

APPENDICES

APPENDIX A: TEXAS AIR CONTROL

BOARD REGULATION VI. .la-4a

APPENDIX B: SELECTED COMMENTS

OF HOUSE MEMBERS

ON THE DUTY OF THE

FEDERAL GOVERN-

MENT UNDER THE

FEDERAL CLEAN AIR

Me oo 06 0 e-em Oe 1b-2b

ii iii

INDEX OF AUTHORITIES STATUTES, REGULATIONS, ORDERS Page

CASES Page Federal Clean Air Act: 42

Alabama v. Seeber, 502 F.2d U.S.C, Sec, 1857 et seq.

(1970) as amended, 42—

1238 (Sth C pee

(Sth Cir, 1974)... 2... ee eee 4, 6, 8 | U.S.C. Sec. 1857 et seq.

Caminetti v. United States, | (Sepp. 1, 1973). we ete ee eee eee 2

242 U.S. 470 (1917)... 1 ee ee 5 | 42 U.S.C. Sec, 1857 (a) (3)... 2s. ee ee 3

Carter v. Seamans, 411 F.2d 42U S.C. Sec. 1067G-S fa). . ww ec eee 8

r. 1969), cert. 42 U.S.C, Sec. 1857c-6 (c)(1l)...... 6, 10

den., 397 U.S. 941 (1970) .......... il 42 U.S.C. Sec. 1857c-9 (b)(1)........ 6

Dugan v. Rank, 372 U.S. 609 @ USL. See. BE. we ce ce oe 5, 9

DS 46.6.6 4 06s See eee e ome ld ll Texas Air Control Board |

Kentucky v. Ruckelshaus, 362 F. Regulation V1 (1972)......... 2, la-4a

‘Supp. 360, (W.D. Ky. i ¢~© «ese 0 aie 10 MISCELLANEOUS

Kentucky v. Ruckelshaus, 497 F. Webster’s Third International

2d i172 (6th Cir. 1974) ........... 4 a ee ee ee ee 5

re v. Domestic & Forei FQ ee ee ee eee 6,7

erce Corp., 337 o S. ai

opereree LosB. 1970 U.S. Code Cong. & Admin.

Pree ee esetosascosenes . ah: tent aimed 64 Hn ee ee 5

Mayo v. United States, 319 U.S, |

DE co toe Oss 6h 6 00 60 640 8 |

Perez v. Campbell 402 U.S. 637 |

DEE 6 666 6 66 #6 Bee ewes s u

Texas v. EPA, 499 F.2d 289

DEE CEEEED © & 6 o's MO Owe oe On 4 |

Texas v. United States -

ment of Defense, = A. cA

74-CA-271, (W.D. Tex.,

Gees Ges COPE ee cerca woseen 4

IN THE

SUPREME COURT OF THE UNITEDSTATES

OCTOBER TERM, 1974

No. 74-220

Commonwealth of Kentucky, ex rel.

Ed. W. Hancock, Attorney General,

Petitioner

vs.

Russell E. Train, Administrator,

Environmental Protection Agency, et al.,

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE STATE OF TEXAS,

AMICUS CURIAE IN SUPPORT OF PETITIONER

2.

INTEREST OF AMICUS CURIAE,

STATE OF TEXAS

As part of its plan to implement the national

ambient air standards under the federal Clean Air

Act,! the State of Texas requires that any person

who plans to construct any new facility orto engage

in the modification of any existing facility which

may emit air contaminants to obtain aconstruction

permit from the Texas Air Control Board, and to

obtain an operating permit from the Board within

sixty (60) days after operation of the facility begins. 2

The granting of aconstruction permit is condi-

tioned, inter alia, on a determination that “/t/ he

proposed facility will not prevent the maintenance

or attainment of any ambient air standard,” and

that “/t/ he proposed facility will utilize the best

available /air pollutionxontrol technology. a

An operating permit is issued only if “/t/ he facility

has been constructed in accordance with the re-

quirements and conditions contained in the permit

to construct. "4

| 42U.S.C. Sec. 1857 et seq., (1970), as amended,

42 U.S.C. Sec. 1857 et seq. (Supp. Il, 1975).

~Texas Air Control Board Regulation VI, at-

tached hereto as Appendix A. The permit require-

ments are specifically set forth in Sections 3.27(a)

and 3.28(a) of the Texas Clean Air Act, TEX, REV.

CIV. STAT. ANN, art. 4477-5 (Supp. 1975).

3 Regulation Vi,

4 Regulation V1.

a Y

The permit program, while not the sole method

of attaining the federal air quality standards in

Texas, is certainly one of the most important,

Subjecting air pollution sources to preconstruction

and premodification review provides the State with

the opportunity to stop air pollution problems be-

fore they start. By requiring at the outset that

steps be taken to ensure that the source does not

endanger the ambient air standards, the permit

program reduces the chances of a later enforce-

ment action to require either that the source shut

down altogether, or, at a minimum, that it retool

its operation to install more effective abatement

equipment at what will likely be increased costs.

More importantly, the permit program greatly

serves the goal of clean air, since it acts to pre-

vent violation of air quality standards from ever

occurring.

The prevention of air pollution at its source

is an explicit goal of the federal Clean Air Act.

42 U.S.C. Section 1857 (a)(3) The “primary re-

sponsibility” for achieving this goal is placed by

the Act squarely on the States and onlocal govern-

ments, Id. The requirement that a permit be

secured prior to construction and operation of an

air pollution source, as has been shown, is essen-

tial to the fulfillment of this responsibility. Ac-

cordingly, Texas has brought suit against the De-

partment of Defense, et al., to require, inter alia,

that it obtain Texas Air Control Board permits for

four aviation fuel storage tanks at Kelly Air Force

ote

Base in San Antonio,° Texas, therefore, has a

direct interest in the outcome of the instant case.

ARGUMENT AND AUTHORITIES

l, A State permit program is clear-

ly a “requirement respecting con-

trol and abatement of air pollu-

tion” with which the Federal Gov-

ernment must comply under 42

U.S.C. Sec. 1857f.

Texas believes that the issue sub judice was

correctly decided in Alabama v, Seeber, 502 F.2d

1238 (Sth Cir. 1974), and urges the Court to adopt

the result reached in that case, While there is

little room to improve either on the FifthCircuit’s

well-reasoned analysis of the federal Clean Air

Act or on its critique ofthe Sixth Circuit’s decision

in the instant case,© Texas offers the following

brief argument.

Texas v. United States Department of Defense,

A-74-CA-271, W.D, Tex., filed Oct. 31, 1974,

Control of hydrocarbon emissions from stationary

sources is crucial to Texas’ plan for attaining and

maintaining the national ambient air standard for

photochemical oxidants. See Texas v. EPA, 499

F.2d 289 (Sth Cir, 1974) (suit challenging EPA’s

(a) rejection of Texas plan for achieving the oxidant

standard and (b) promulgation of its own plan to

meet this standard),

SKentucky v. Ruckelshaus, 497 F.2d 1172 (6th

Cir, 1974),

of.

To discover whether Congress intended that

federal instrumentalities should comply with state

permit requirements the plain and unambiguous

language of the Clean Air Act first must be consid-

ered, Caminetti v. United States, 242 U.S. 470

(1917). Section 1857f of the Clean Air Act plainly

directs federal facilities to “comply with Federal,

state . . . requirements respecting control and

abatement of air pollution to the same extent that

any person is subject to such requirements.” The

permit program of the State of Kentucky quite clear-

ly comes within this statutory language.

The Kentucky permit program, like that. of

Texas, isobviously a “requirement,” in the ordinary

sense of that word. Webster’s Third International

Dictionary (1969) at page 1929 defines “require-

ment” as something “needed,” “called for,” or

“demanded”; a “requisite or essential condition.”

As amply demonstrated in the brief submitted by

Kentucky, that State’s permit program is not only

“demanded” in the legal sense by state regulation,

it is “essential” to Kentucky’s effort to achieve

the federally set ambient air quality standards.

Respondents would have this Court depart from the

ordinary meaning of “requirement” and define it to

include only “applicable standards of air quality

and emissions,” the phrase employed in the Con-

ference Report on the Clean Air Act, 1970U.S. Code

Cong. & Admin, News at 5381. Such adeparture is

clearly unwarranted,

Had Congress intended that the Federal Gov-

ernment comply only with state emission standards

it would have said so, Infact, the Conference Com-

-6-

mittee rejected similar language -- “shall comply

with applicable Federal, State, interstate, and local

emission standards” -- found in the original House

version of the Act in favor of the Senate version em-

ploying the word “requirements,” 116 Cong, Rec.

19228 (1970). Similarly, had Congress intended to

exempt federal facilities from all state require-

ments except “applicable standards of air quality

and emissions,” it could easily have done so by use

of specific exclusionary language like that employed

elsewhere in the Act, For exampie, 42U.S.C, Sec.

1857c-6(c)(1) allows the EPA Administrator to

delegate to the states power to enforce performance

standards for new stationary sources “except with

respect to new sources owned and operated by the

United States.” Identical language limiting the

power of the states is also found in 42 U.S.C, Sec.

1857c-9(b)(1) which permits a delegation of authority

to the states to enforce certain recordkeeping and

monitoring requirements. These two facts -- re-

jection of the more restrictive House language in

favor of the more comprehensive phrase “require-

ments respecting control and abatement of air

pollution” and the failure to use specific exclusion-

ary language, employed elsewhere in the Act, to

exempt federal facilities from state permit require-

ments -- evinces an unequivocal Congressional in-

tent to subject federal facilities to the same regula-

tory measures applicable to every other source of

air pollution,

Moreover, the legislative miangry of the Act, as

noted by the Fifth Circuit in Seeber,’ showed a clear

7alabama v. Seeber, 502 F.2d 1238, 1245 (Sth

Cir, 1974),

x 2

Congressional displeasure with the air pollution

abatement efforts of the federal facilities. As

Senator Spong remarked:

Federal agencies have been

notoriously laggard in abating pollution,

The pending bill would require Federal

agencies to provide leadership for the

control of air pollution, Only the Presi-

dent could exempt a Federal facility from

the act, and then only if he determined

the exemption to be in the paramount

interest of the United States... .

We cannot expect individuals and

businesses to be motivated to abate pol-

lution if their Government continues to

pollute. 1 support wholeheartedly the

mandate for the Federal Establishment

to live up to the national commitment

for clean air. 116 Cong. Rec. 32930

(1970).

Congress, in short, meant what it said -- the

federal Government shall be subject to the same

air pollution control requirements as every one

else, except where the President concludes that it

is in the paramount national interest to exempt a

federal facility from some specific requirement.

The result reached by the Sixth Circuit, granting

federal facilities a blanket exemption from state

SFor similar comments by members of the

House, see Appendix “B”.

-8-

permit requirements, does violence to this care-

fully conceived regulatory scheme. For this reason

the judgment of that court must be reversed,

Il. Neither the Supremacy Clause nor

the Doctrine of Sovereign Immunity

are applicable to this case.

In rejecting these defenses in Seeber,? the Fifth

Circuit reasoned that since Congress may subject

the federal government both to state regulation!

and to suit, ! and since Congress had accomplished

both these results in the federal Clean Air Act,

neither the Supremacy Clause nor sovereign immu-

nity were available to bar a suit to compel com-

pliance with such regulation. The logic is unassail-

able. Texas, however, respectfully offers these

additional observations.

First, Kentucky’s permit requirements, like

those of Texas, were not issued in the provincial

exercise of state police power, but in direct re-

sponse to the Clean Air Act’s mandate to the states

to implement the national ambient air standards set

by the federal Environmental Protection Agency.

42 U.S.C, Section 1857c-5(a). Thus, if the opera-

?alabama v. Seeber, 502 F.2d 1238, 1247-48

(Sth Cir, 1974).

lOmtayo v. United States, 319 U.S, 441, 446

(1942).

Ll) arson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682 (1949).

Me

tions of federal facilities are fettered somewhat by

the Kentucky permit program requirements, it is

not due to “state regulation” in its traditional sense,

but due rather to the will of Congress, expressed

in the Clean Air Act, that the states assume the

primary role of controlling air pollution at its

source,

The Supremacy Clause is inapposite for the

further reason that Kentucky’s permit requirement

has not been shown to in any way frustrate federal

law, the evil against which the Supremacy Clause

was designed to protect. See, Perez v. Campbell,

402 U.S. 637 (1971). To the contrary, the Kentucky

permit program is in furtherance of -- indeed es-

sential to -- the operation of at least one federal

law, to-wit, the federal Clean Air Act.

Congress, however, was not unmindful that

state requirements might unduly interfere with the

activities of a federal instrumentality. Its solution

to this potential problem was not to provide an

across the board exemption of federal facilities

from such requirements, but to authorize the P resi-

dent, on a case-by-case basis, to exempt them “if

he determines it to be in the paramount interest of

the United States to do so.” 42 U.S.C. Sec. 1857f.

The authority of the President to exempt federal

facilities achieves the same policy objectives sought

by the Supremacy Clause. Ifobtaining state permits

frustrates the federal law under which the federal

facility operates, and the paramount national in-

terest is disserved thereby, the President can ex-

empt the facility. Though not mentioned by the Sixth

Circuit, the district court in the instant case feared

-10-

that Kentucky’s permit program could interfere with

“important Federal actions,” and that the Presi-

dent’s exemption power was too circumscribed to

forestall such interference. In concluding that

the President could only exempt where he had re-

quested an appropriation for federal air pollution

control equipment and Congress had failed to comply

with the request, !3 the district court was clearly

wrong. Section 1857f is quite plaininits statement

that the President may exempt a federal facilityon

the grounds that there is no money with which to

comply only if he has requested the money and Con-

gress has failed to give it to him. This narrow

limitation in no way restricts the President’s au-

thority to exempt for other reasons, such as nation-

al defense or other paramount national concerns.

The district court also noted that the President may

not exempt federal facilities from new stationary

source standards, While this is true, it is of little

relevance here, since 42U.S.C.Section 1857c-6(c)

(1) prevents the states from enforcing new station-

ary source standards against federal facilities.

The doctrine of sovereign immunity is likewise

inapplicable to the instant case. Kentucky seeks to

compel federal officers to comply with their duty

under the federal Clean Air Act to obtain permits

to operate sources of air pollution, Such an action

is within the well-recognized exception to sovereign

12k entucky v. Ruckelshaus, 362 F.Supp. 360,

367 (W.D. Ky. 1973).

ISig.

*“.

ofl.

immunity permitting suits against federal officers

for acts (of omission or commission) beyond their

Statutory powers. Dugan v. Rank, 372 U.S. 609,

621, 622 (1963). To avoid the obvious problem of

“deciding the case on the merits under the guise

of resolving the preliminary jurisdictional issues,”

the Court should accept “at face value, for juris-

dictional purposes, the averments of the complaint

unless they are so transparently insubstantial or

frivolous as to afford no possible basis for juris-

diction, and . . . /give/the averments thus accept-

ed their natural jurisdictional consequences.” Car-

ter v. Seamans, 411 F.2d 767, 770 (Sth Cir. 1969),

cert.den. 397 U.S. 941 (1970). Applying that tech-

nique to the case before it, the court in Carter found

that for jurisdictional purposes only, “the Case sub

judice is not against the United States, butone rather

to compel the Secretary of the Air Force to perform

a Clear legal duty.” Carter v,Seamans, supra, 411

F.2d at 771. Accordingly, the court held the defense

of sovereign immunity was unavailable.

The situation is no different here than it was

in Carter. Kentucky has alleged that the federal

Clean Air Act imposes a dutyon TVA and the Army

to apply for state permits and has prayed the court

to compel the performance ofthis duty. Whether the

Act, in fact, does require federal compliance with

Kentucky’s permit program is a question to be de-

cided on the merits and should not be confused with

the sovereign immunity issue.

-12-

CONCLUSION

The State of Texas urges this Court to reverse

the judgment of the Sixth Circuit and to hold that

TVA and the Army must comply with Kentucky’s

air pollution control permit requirements, At stake

is not a mere state procedural requirement which

can easily be supplanted by another or dropped

altogether. Rather it is the only practicable method

of preventing air pollution, which is the mainthrust

and goal ofthe Clean Air Act. Enforcement actions

brought after an emission limitationor a compliance

schedule deadline is violated is no substitute for en-

gineering review prior to the construction or

modification of an air pollution source. Where the

former mechanism seeks to abate or redress an

existing or threatened condition of air pollution, the

latter seeks to prevent that conditionor threat from

ever arising. If the decision of the Sixth Circuit

stands, and federal facilities are insulated from

state permit requirements, the Federal Govern-

ment, contrary to the wishes of Congress, will be

effectively exempted from the national commitment

to end air pollution,

The judgment of the Sixth Circuit must be re-

versed,

Respectfully submitted,

JOHN L, HILL

Attorney General of Texas

DAVID M, KENDALL

First Assistant Attorney

General

-13-

Assistant Attorney General

Attorneys for Amicus Curiae,

State of Texas

Supreme Court Building

Austin, Texas 78711

(512) 475-4143

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the fore-

going Brief of the State of Texas, Amicus Curiae

in Support of Petitioner was served by mailing true

copies hereof via United States mail, postage pre-

paid, to: Honorable William B, Saxbe, The Attorney

General, Department of Justice, Tenth and Consti-

tution Avenue, Washington, D, C, 20530; Honorable

Wallace H, Johnson, Assistant Attorney General,

Land and Natural Resources Division, Department

of Justice, Tenth and Constitution Avenue, Wash-

ington, D, C, 20530; Honorable Walter Kiechel, Jr.,

Deputy Assistant Attorney General, Land and Nat-

ural Resources Division, Department of Justice,

Tenth and Constitution Avenue, Washington, D. C,

20530; Honorable Martin Green, Section Chief, Pol-

lution Control Section, Land and Natural Resources

Division, Department of Justice, Tenth and Consti-

tution Avenue, Washington, D, C, 20530; Honorable

James A, Glasgow, Attorney, Land and Natural Re-

sources Division, Department of Justice, Tenth and

-]4-

Constitution Avenue, Washington, D. C. 20530;

Honorable Robert L. Klarquist, Attorney, Appellate

Section, Land and Natural Resources Division, De-

partment of Justice, Tenth and Constitution Ave-

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

Long, United States District Attorney, Western Dis-

trict of Kentucky, Room 211, United States Court-

house, Sixth and Broadway, Louisville, Kentucky

40202; Honorable Jacques B, Gelin, Attorney, Ap-

pellate Section, Department of Justice, Washington,

D. C., 20530; Honorable Kent Frizzell, Assistant

Atto: ney General, Land and Natural Resources

Division, Department of Justice, Washington, D.C.

20530; Honorable Herbert S. Sanger, Jr., Deputy

General Counsel, Tennessee Valley Authority,

Knoxville, Tennessee 37901; Honorable Robert H.

Marquis, Associate General Counsel, Tennessee

Valiey Authority, Knoxville, Tennessee 37901; Hon-

orable Beauchamp E, Brogan, Associate General

Counsel, Tennessee Valley Authority, Knoxville,

Tennessee 37901; Honorable Justin M. Schwamm,

Associate General Counsel, Tennessee Valley Au-

thority, Knoxville, Tennessee 37901; Honorable

G,. Wilson Horde, Generali Counsel, Union Carbide

Corporation, Post Office Box Y, Oak Ridge, Ten-

nessee 37830; Honorable Andrew P. Miller, At-

torney General, Commonwealth of Virginia, Su-

preme Court Building, 1101 East Broad Street,

Richmond, Virginia 23219; Honorable Evelle Young-

er, Attorney General, State of California, Honorable

Foster Knight, Deputy Attorney General, State of

California, Honorable Robert H.O’Brien, Assistant

Attorney General, State of California, Honorable

Nicholas C, Yost, Deputy Attorney General, State of

California, 600 State Building, 217 West First Street,

-15-

Los Angeles, California 90012; Honorable Ed W.

Hancock, Attorney General, Commonwealth of Ken-

tucky, Capitol Building, Frankfort, Kentucky 40601;

Honorable David C, Short, Assistant Attorney Gen-

eral, Division of Natural Resources and Environ-

mental Law, Commonwealth of Kentucky, Capitol

Building, Frankfort, Kentucky 40601; Honorable

David D, Beals, Assistant Attorney General, Divi-

sion of Natural Resources and Environmental Law,

Commonwealth of Kentucky, Capitol Building,

Frankfort, Kentucky 40601; Honorable Robert F.

Trevey, Attorney, Department for Natural Resourc-

es and Environmental Protection, Division of Air

Pollution, East Main Street, Frankfort, Kentucky

40601; Honorable James F. Gordon, United States

District Judge, Western District of Kentucky, 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 Cir-

cuit, and Honorable Lester L, Cecil, Senior Cir-

cuit Judge, United States Court of Appeals For the

Sixth Circuit, 608 United States Courthouse, Build-

ing, Cincinnati, Ohio 45202, all this the7?7 day of

June, 1975. —

¢,

HILIP K.

Assistant Attorney General

la

APPENDIX A

REGULATION VI

CONTROL OF AIR POLLUTION BY PERMITS

FOR NEW CONSTRUCTION OR MODIFICATION

Rule 601.

Rule 602.

Rule 603.

603.1

Section 3.27 (a) and Section 3.28(a) of

the Texas Clean Air Act require any

person who plans to construct any new

facility or to engage in the modifica-

tion of any existing facility which may

emit air contaminants into the air of

this State to obtain a construction per-

mit from the Texas Air Control Board

before any actual work is begun on

the facility, and to obtain an operating

permit from the Texas Air Control

Board in order to continue to operate

the facility after a sixty day start-up

period.

The owner of the facility or the opera-

tor of the facility authorized to act for

the owner is responsible for applying

for and obtaining a permit to construct

and operate.

Consideration for Granting a Permit

to Construct and Operate,

In order to be granted a permit to con-

struct, the owner or operator of the

proposed facility shall submit infor-

mation to the Texas Air Control Board

2a

in order that the Texas Air Control

Board may determine that:

603.11 The proposed facility will

comply with all Rules and

Regulations of the Texas Air

Control Board and with the

intent of the Texas Clean

Air Act.

603.12 The proposed facility will not

prevent the maintenance or

attainment of any ambient

air quality standard,

603.13 The proposed facility will

not cause significant deter-

ioration of existing ambient

air quality in the area,

603.14 The proposed facility will

have provisions for measur-

ing the emission of signifi-

cant air contaminants as de-

termined by the Executive

Secretary.

603.15 The proposed facility will

be located in accordance with

proper land use planning.

603.16 The proposed facility will

utilize the best available

control technology, with con-

sideration to the technical

practicability and economic

— a

603.2

603.3

Rule 604,

Clean Air Act, a permit to construct and a permit

3a

reasonableness of reducing

or eliminating the emissions

resulting from the facility.

603,17 The proposed facility will a-

chieve the performance spe-

cified in the application for

a permit to construct,

If the owner of the proposed facility

cannot demonstrate that the facility

will comply with Rule 603.17, a con-

ditional construction permit may be

granted until such time as the owner

can demonstrate compliance with Rule

603.17,

In order to be granted a permit to

operate the owner of the facility shall

demonstrate that:

603.31 The facility is complying

with the Rules and Regula-

tions of the Texas Air Con-

trol Board and the intent of

the Texas Clean Air Act.

603.32 The facility has been con-

structed in accordance with

the requirements and condi-

tions contained in the per-

mit to construct,

Pursuant to Section 3,27(a) of the Texas

Rule 605.

Rule 606.

Rule 607.

4a

to operate shall not be required for

those sources exempt by the Texas

Air Control Board. Alistof exemptions

is available upon request from the

Executive Secretary of the Board.

Persons desiring to be exempt from

the permit system may apply in writing

to the Executive Secretary ofthe Texas

Air Control Board.

Installations exempt by the Texas Air

Control Board may be required by local

air pollution control agencies to re-

ceive a permit or permits from that

agency, or register with that agency.

The rules contained in this Regulation

shall be in force immediately and shall

supersede the previous Regulation V1

which became effective on March 5,

1972,

Date Adopted: July 27, 1972

Date Filed with Secretary of State:

August 1, 1972

Date Effective: August 31, 1972

lb

APPENDIX B

SEL.ECTED COMMENTS OF HOUSE

MEMBERS ON THE DUTY OF THE

FEDERAL GOVERNMENT UNDER

THE FEDERAL CLEAN AIR ACT

Representative Staggers: “Instead of exercising

leadership in controlling or eliminating air

pollution the Federal Government has tended

to be slow in this respect. The foregoing pro-

vision is designed to reverse this tendency.”

116 Cong. Rec. 19205 (1970).

Representative Springer: “One of the frustrating

aspects of air pollution legislation is the pre-

sence of large Federal installations either

operated directly by the Government or under

its direction which contaminate the atmosphere

on a large scale. How can we expect coopera-

tion or creditability for the governmental ef-

fort when the installations controlled by Uncle

Sam are some of the worst polluters? The

Federal Government as much as some private

businesses has dragged its feet for purely

economic reasons. Allowing the Government

to remain immune from the rules which we

wish to impose on others is wrong. Actually

it should lead the way.” 116 Cong. Rec. 19207

(1970).

Representative Skubitz: “In addition to all the

things that are going to be required from pri-

vate business, for the first time we are saying

without equivocation that Federal installations

2b

are going to have to live up to the rules that

the Federal Government makes for others.”

116 Cong. Rec. 19208 (1970).

Representative Rogers: “Furthermore, we havea

provision about Federal-installation polluting.

We direct that all Federal installations, who,

incidentally, are some of the biggest polluters

in this Nation, shall abide by the pollution laws,

and the only way they can get an exception is

to go to the Secretary /now the President/.

In other words, this is telling the Fede-

ral agencies: ‘We want you to stop polluting

the air, too.’ ” 116 Cong. Rec. 19211 (1970).