Amicus Brief — Hancock v. Train

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In The MICHAEL 200K. JR.CLERK

Supreme Court of the United States

October Term, 1974

No. 74-220

COMMONWEALTH OF KENTUCKY, ex Re.

ED W. HANCOCK, Arrorney GENERAL,

Petitioner,

RUSSELL E. TRAIN, Av inistTraTor, *

ENVIRONMENTAL PROTECTION AGENCY, et At., <

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Sixth Circuit fd

BRIEF OF THE COMMONWEALTH OF VIRGINIA AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

ANpbREW P. MILLER

Attorney General of the

Commonwealth of Virginia,

Amicus Curiae

J. THomas STEGER

Assistant Attorney General

Supreme Court Building

1101 East Broad Street

Richmond, Virginia 23219

TABLE OF CONTENTS

Page

INTEREST Or THE AMICUS ........ 1

ee CY

ARGUMENT

I. The Language Of Section 118 Of The Clean Air Act Is Not

Restricted To Only Emission Standards Or Standards Of

Performance, But Encompasses All Requirements Respecting

The Control and Abatement of Air Pollution ........................ 4

II. A State Permit System Is A Requirement Respecting The

Control And Abatement Of Air Pollution. .............................. 8

0 i escheat aa 12

TABLE OF CITATIONS

Cases

Old Colony RK. Co. v. Commissioner of Internal Revenue, 284

US Se (iGGR) ....... inosine heeeiaaedapabaaabamimiadpaneinaidida ee

Petition of Public Nat. Bank of New York, 278 U.S. 101 (1928) 7

Train v. NRDC, 43 U.S.L.W. 4467 (U.S. April 16, 1975) ...... — %

Statute

FEDERAL

Clean Air Act of 1970, 42 U.S.C. §§ 1857 et seq. ..........1, 5, 4, 6, 11

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, ApMINIsTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, et ALt.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Sixth Circuit

BRIEF OF THE COMMONWEALTH OF VIRGINIA AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS

The interest of the Commonwealth of Virginia is to seek

a determination that the use of permits, when included in a

State’s program of air pollution control measures, constitutes

a requirement which is applicable to federal facilities under

Section 118 of the Clean Air Act.

In its program for the achievement and maintenance of

ambient air quality standards, Virginia relies on a registra-

tion and permit process similar to that of Kentucky. Under

paragraph 2.03 of the regulations of the Virginia Air Pol-

lution Control Board all persons owning or operating any

existing source of pollution shall have registered such source

operation with the Board by June 30, 1972. Under para-

graph 2.04 of the regulations any source in existence at the

time the regulations became effective shall have been in

compliance by June 30, 1972. If compliance was not pos-

sible by that date, the person responsible for the operation

of that source shall have submitted to the Board, by the

same date, a control program and schedule containing a

date when full compliance will be achieved.

New sources, defined as those constructed after March

17, 1972, and the modification, after this date, of any

source are governed by paragraph 2.06 of the regulations.

This paragraph prohibits the commencement or modifica-

tion of a source until there is first obtained from the Board

a permit to construct and operate the source.

Applications for permits from the Virginia Board must in-

clude such information as may be required by the Board to

determine the effect of the proposed source on the ambient

air quality and also to determine compliance with the ap-

plicable emission standards. Prior to issuing a permit, the

Board must be satisfied that the source will be constructed

or modified without causing a violation of the applicable

regulations. The Board must also be satisfied that the pro-

posed source can be designed and built in accordance with

the utilization of the best available control technology. Ad-

ditionally, the Board must be satisfied that the proposed

source will not compromise the attainment or maintenance

of an applicable ambient air quality standard. Finally, an

application for a permit must be subject to a public hearing.

In addition to permits for new or modified sources, Vir-

ginia has special regulations which require permits for

outdoor burning in Standard Metropolitan Statistical Areas.

There are no emission standards or standards of perform-

ance for such open burning. The issuance of an open burning

permit depends upon a determination whether the burning

will cause a health or traffic hazard, and whether the ma-

terial to be burned can be disposed of by other means.

Frequently, these permits contain special terms which are

tailored to each unique situation.

Virginia’s regulations apply to departments and

agencies of the Federal government. There are many facil-

ities in Virginia which are owned and operated by such

departments and agencies, which engage in activities which

result or may result in the discharge of air pollutants.

Among these are the Pentagon, Forts Belvoir, Eustis, Lee

and Meyer, the Naval Base at Norfolk and the Marine

Base at Quantico. These and other Federally operated

sources have submitted to the Board registration forms and

compliance programs, while at the time stating that ap-

plication for permits would not be made.

SUMMARY OF ARGUMENT

The plain language of Section 118 of the Clean Air Act

states that Federal agencies are required to comply with

state requirements to same extent that any person is sub-

ject to such requirements. The defendants cannot obfuscate

that clear language by imposing upon it their invented dis-

tinction between “substantive” and “procedural” require-

ments. That distinction is not justified by any section of the

Clean Air Act or by any reference to its legislative history.

A state permit is an essentia! requirement for the control

and abatement of air pollution. Section 304 of the Clean Air

Act, which is the “citizen suit” provision, does not provide

a sufficient means for a state to carry out its goal of achiev-

ing and maintaining clean air.

ARGUMENT

The Language Of Section 118 Of The Clean Air Act Is Not Re-

stricted To Only Emission Standards Or Standards Of Per-

formance, but Encompasses All Requirements Respecting The

Control And Abatement Of Air Pollution.

The first sentence of Section 118 of the Clean Air Act

of 1970, 42 U.S.C. § 1857f, states:

“Each department, agency, and instrumentality of

the executive, legislative, and judicial branches of the

Federal Government (1) having jurisdiction over any

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

resulting, or which may result, in the discharge of air

pollutants, shall comply with Federal, State, interstate,

and local requirements respecting control and abate-

ment of air pollution to the same extent that any

person is subject to such requirements.”

The question presented in this case is, therefore, does

the permit system adopted by the Kentucky Air Pollution

Control Commission constitute one of these “requirements

respeciing control and abatement of air pollution.”

In construing these words of Section 118, the general

rule is that the legislature must be presumed to use words

in their known and ordinary signification. Old Colony R.

Co. v. Commissioner of Internal Revenue, 284 U.S. 552,

560 (1932). The word “requirement” is self-explanatory.

The ordinary meaning of “respecting” is “with regard or

relation to.’ Webster’s Third New International Dictionary,

G. & C. Merriam Co. (1968). Therefore, the applicability

to Federal agencies of Kentucky's permits, which are clearly

requirements, must be judged with regard or relation to

the effect of these permits on the control and abatement of

air pollution.

All of the defendants herein contend that the phrase

“requirements respecting control and abatement of air

pollution” means simply that Federal facilities must comply

with the emissions standards and “substantive” portions of

implementation plans of Sections 109 and 110 of the Clean

Air Act, and, except for new facilities, the monitoring and

other requirements of Section 114. Defendants further con-

tend that permit systems are merely “procedural” and

consequently have nothing to do with the control and abate-

ment of air pollution. Defendants argue that the legislative

history of the Act supports their interpretation. The Courts

below agreed with the defendants.

We would respectfully submit that the analysis of the

legislative history made by the defendants and the Courts

below is erroneous. The legislative history of Section 118

does not inexorably lead to the conclusion that the “re-

quirements” in question mean only emissions and air quality

standards. The version of Section 118 passed by the House

of Representatives would have required Federal facilities

to comply with State and local emission standards. H.R.

17255, 91st Cong., 2d sess., sec. 111 (1970). The Senate-

passed version would have required Federal facilities to

comply with the “requirements” of this Act. S. 4358, 91st

Cong., 2d sess., sec. 118 (1970). The Senate Report on

the bill states, “This section requires that Federal facilities

meet the emission standards necessary to achieve ambient

air quality as well as those established in other sections of

Title I.” S. Rept. No. 91-1196, 91st Cong., 2d sess., p. 23

(1970). The final language of Section 118 emerged from

the Conference Committee. Concerning this new and final

language the conference report stated, “The House bill

and the Senate amendments declare that Federal depart-

ments and agencies should comply with applicable standards

of air qualtiy and emissions.” H. Rept. No. 91-1783, 91st

Cong. 2d sess., p. 48 (1970).

Since the various reports refer just to standards of air

quality and emissions, defendants appear to be urging that

the maxim “expresio unius est exciusio alterius” applies

through the reports to the statute itself. But Section 118

does not use the words “emission standards”; it speaks of

state and local requirements respecting the control and

abatement of air pollution. This language is broader and

more inclusive than the words “emission standards.”

Such State requirements are to be found in the State

implementation plans, the context of which is governed by

Section 110 of the Clean Air Act. Under subparagraph

(a)(2)(B) of this Section, the plans, which provide for

the implementation, maintenance and enforcement of am-

bient air quality standards, must include not only emission

limitations and compliance schedules but “such other meas-

ures as may be necessary to insure attainment and main-

tenance of such primary or secondary standard, including,

but not limited to, land-use and transportation controls.”

Thus, if a particular State’s permit system can be deter-

mined to be a measure which is necessary to insure attain-

ment and maintenance of an air quality standard, it is clearly

a requirement respecting the control and abatement of air

pollution just as are emission limitations or standards. Surely,

land-use and transportation controls, could not be effectu-

ated by emission controls alone, but would necessarily de-

pend upon some other regulatory scheme, such as permits

involving the use of land.

The full intent of the phraseology used in Section 118

is fu ther clarified by reference to Section 116 of the Clean

Air Act. That Section provides in part:

“cs

. . nothing in this chapter shall preclude or deny

the right of any State or political subdivision thereof

to adopt or enforce (1) any standard or limitation

respecting emissions of air pollutants or (2) any re-

quirement respecting control or abatement of air pol-

lution; .. .” 42 U.S.C. 1857d-1.

Clause (2) of this Section is essentially the same as that

found in Section 118. It is a cardinal rule of statutory con-

struction that a statute ought, upon the whole, be so con-

strued that, if it can be prevented, no clause, sentence or

words shall be superfluous, void or insignificant. Petition of

Public Nat. Bank of New York, 278 U.S. 101 (1928).

Therefore, in accordance with this rule of construction, the

phrase “any requirement respecting control or abatement

of air pollution” must be construed as meaning more than a

mere redundant expression of the clause “any standard or

limitation respecting emission of air pollutants.”

It should also be noted that Federal agencies have not

been recalcitrant in seeking relief under State “procedures,”

when it works to their advantage. For instance, Virginia’s

regulations expressly provide that all sources were to be in

compliance with categorical emission limitations on June 30,

1972. This requirement is the same as that found in the

Georgia plan, which was discussed by this Court in Train v.

NRDC, 43 U.S.L.W. 4467 (U.S. April 16, 1975). But, as

this Court stated in Train, the Georgia plan “incorporated

a variance procedure whereby particular sources could ob-

tain individually tailored relief from general requirements.”

Id. at 4469. Virginia incorporated a similar procedure for

relief from the 1972 compliance date; the source may sub-

mit, to the Virginia Board, a compliance schedule which,

when approved by the Board, permits deferred compliance.

Obviously, the interim timetables and circumstances for

each such schedule are not spelled out as “substantive”

regulations, but are worked out “administratively” between

the Board and the source. Also, the compliance schedule, as

a specific revision to the initial plan, is subject to a public

hearing conducted by the Board’s staff. Needless to say,

some Federal agencies have opted for this deferral pro-

cedure, and are now under compliance schedules. These

Federal agencies, however, should have been in complete

compliance with the emission standards in 1972, if they

wish to be consistent with their “substantive/procedural”

hypothesis. The actual inconsistency of their behavior re-

veals the senselessness of relying on mere semantical dif-

ferences.

A State Permit System Is A Requirement Respecting The Control

And Abatement Of Air Pollution.

A permit system is an effective and necessary tool in

achieving and maintaining clean air. The permit system

facilities identification and evaluation of the source’s need

for air pollution control equipment. It insures that existing

or proposed air pollution control devices be of sufficient

collection efficiency to minimize potential air pollution. It

prevents the construction or modification of uncontrolled

sources. An applicant for a permit is expected to make any

necessary changes on the drawing board, rather than on the

physical plant itself. It is to the applicant's financial ad-

vantage to come forward with its control proposals and

plans at a stage when review and correction, if needed may

be more easily accomplished.

The permit system specifies and clarifies the source

owner's pollution control responsibility in one action. Liti-

gation over an alleged violation of emission standards, or

other factors, during which the public might suffer the

effects of air pollution. is avoided. Of course, if a permit is

denied to an applicant, he may seek judicial review. This

litigation, however, is carried out on the applicant’s time,

not the public’s, for until a permit is issued, the applicant

cannot operate the source. See Train, id. at 4477.

Furthermore, the permit system will prevent a source

from possibly degrading the air below an air quality stan-

dard. It can be used to allocate available clean air among

several sources, and equalize the burden of pollution control.

It would be an important consideration in any administra-

tive program which depends upon flexibility and ingenuity

to deal with problems of allocation. See Train, id. at 4477.

The Circuit Court of Appeals below did not ignore the

need and power of the States to control air pollution from

Federal sources. It stated, however, that these elemerts

could be satisfied by proceeding under Section 304 of the

Act, which is the “citizen suit” provision. The Court below

believed that this Section could not only be used to abate

pollution, but to prevent it as well, by bringing an action

whenever a Federal source failed to meet a level prescribed

in a schedule or timetable of compliance.

We do not believe that Section 304 provides a satis-

factory solution. In the first place, if the State permit re-

quirement is eliminated with respect to Federal sources, and

if Section 304 is the sole means of challenging the sufficiency

of Federal pollution control efforts, then, in essence, these

Federal agencies are allowed to license themselves, in ac-

cordance with their own determination as to what the

State requires, and the judiciary, not the expert regulatory

agency, becomes the judge of the accuracy of these de-

terminations. The traditional role of the judiciary, as the

reviewer of decisions made by expert regulatory agencics,

is set aside and instead the judiciary becomes the primary

trier of fact. The expert regulatory agency looses that initial

elemem of decision-making which has become the hallmark

of modern administrative process, and to which, under a

permit system, al] sources would be subject.

Secondly, exclusive reliance on Section 304 would require

the State agency to make a Federal case out of every sus-

pected violation or questioned act of the Federal source,

including those doubts regarding the Federal source’s evalu-

ation of its proposed conformance to the State standards.

This will either result in an inordinate burden upon the

judiciary, or it will encourage the State to suppress those

doubts and questions. The objective of insuring that Federal

sources fulfill their pollution control responsibilities is not

served in that fashion. And it must always be remembered

that, during the pendency of this litigation, which can be

complex and lengthy, the Federal source would be oper-

ating and putting out possibly dangerous levels of pollu-

tion. That would be avoided if the Federal source would

wait. like everyone else must, until its proposed operation has

been approved and permitted by the State agency.

To deprive the State of its permit requirement and to

insist that all efforts to control Federal sources must be

brought under Section 304, is also to deprive the state’s

citizens of an opportunity to voice their concern in an in-

expensive and efficient proceeding. This opportunity is the

public hearing, which some states, including Virginia, re-

quire before a permit is issued. These public hearings some-

times provide information which both the State agency and

the Federal source may not be aware of. Federal sources

should not fear these public hearings for permits, because

public hearings are also a requirement for specific revisions

or variances to emission limitations, which Federal sources

have requested, and can be expected to request, from time

to time.

Finally, Section 304 is of no value in either preventing

or abating open burning violations. There are no emission

standards or standards of performance applicable for open

burning. In Standard Metropolitan Statistical Areas, where

permits are required, the criteria involves the effects on

local health and traffic, and also a consideration of alternate

means of disposal of the substance desired to be burned.

Furthermore, Section 304 requires that the alleged violators

be given 60 days’ notice before an action is commenced.

Most open burning, however, can be completed within a

few days. The damage, if any, has been done before a suit

can be commenced. A permit system minimizes problems

resulting from open burning, which, to many citizens, is

one of the most evident and bothersome aspects of the total

spectrum of air pollution.

It is submitted, therefore, that a permit system ought

to be regarded as a requirement respecting the control and

abatement of air pollution, and which is thus expressly made

applicable, under Section 118, to federal sources, The dis-

tinction between “substantive” and “procedural” require-

ments, which the Courts below accepted, and gave effect to,

in a summary fashion, is irrelevant, and not justified by the

language of the Clean Air Act.

CONCLUSION

The order appealed from should be reversed and the

plaintiff's motion for summary judgment should be granted.

Respectfully submitted,

ANDREW P. MILLER