Amicus Brief — Hancock v. Train

Service of the within and receipt of a copy

thereof is hereby admitted this

of May, A.D. 1975.

eer ere eee eee eee

day

IN THE

Supreme Court of the Unit

October Term, 1974

No. 74-220

COMMONWEALTH OF KENTUCKY, ex rel.

ED W. HANCOCK, Attorney General,

vs.

RUSSELL E. TRAIN, Administrator,

PROTECTION AGENCY, et al.,

Supreme Court, U. §,

LED

d States 1975

MICK ATL RODAK, JP,

Petitioner,

ENVIRONMENTAL

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Sixth Circuit.

Brief of the California Attorney General, California Air

Resources Board and Georgia Attorney General

as Amici Curiae in Support of Petitioner.

EVELLE J. YOUNGER,

Attorney General,

ROBERT H. O'BRIEN,

CARL BORONKAY,

Assistant Attorneys General,

NICHOLAS C. YOST,

RODERICK WALSTON,

DANIEL TAAFFE,

C. FOSTER KNIGHT,

Deputy Attorneys General,

C. FOSTER KNIGHT,

Deputy Attorney General,

110 West “A” Street, Suite 600,

San Diego, Calif. 92101,

(714) 236-7349,

Attorneys for Amicus Curiae

State of California.

ARTHUR K. BOLTON,

Attorney General of the

State of Georgia,

ROBERT E. HALL,

Assistant Attorney General,

132 State Judicial Building,

Atlanta, Georgia 30334,

(404) 656-3391,

Attorneys for Amicus Curiae

State of Georgia.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

a

SUBJECT INDEX

Page

Interest of Amicus Curiae, State of California ........ |

a rccinttlaeeiatliteaitnes 4

I titectciariiisticcicecacieibiscniicerteehnciieiiienttasiahlephatileii 6

EES. SER EN se nee as VOD TER 6

Federal Facilities Must Comply With State and

Local Permit Requirements for Controlling

and Abating Air Pollution .......................... 9

A. Successive Amendments to the Clean

Air Act Show That Congress Has In-

creasingly Subjected Operators of

Federal Facilities to Federal, State and

Local Control Authority ...................... 9

B. Permit Requirements Are “Require-

ments Respecting Control and Abate-

ment of Air Pollution” With Which

Federal Facilities Must Comply ........ 12

C. State and Local Permit Requirements

Are Integral and Necessary Elements

of Implementation Plans for Control-

ling Stationary Sources of Air Pollu-

tion, Including Federal Facilities ........ 18

II

The Supremacy Clause and Sovereign Im-

munity Doctrine Do Not Insulate Federal

Facilities From State and Local Permit Re-

ID sccistncstestiinincsiiniaiicnniacicninnbansinicivaninen 20

A. The Supremacy Clause Is Inapplicable

to Bar State Permit Requirements .... 20

Page

B. Federal Facilities Are Not Immune

From State Suits Enforcing Section 118

sinsidheiniiasiaiadiicniaabanaiiddniaaudintinatadiataiiaidie 21

C. State and Local Permit Requirements

in Approved State Implementation

Plans Are Binding on the Federal Gov-

ernment; Federal Stationary Sources

Must Comply With Such Permit Re-

IIIT ininsinseaciecetesicatemicnenaiennaiaiinhann 22

D. Permit Requirements Do Not Con-

stitute a Significant Additional Burden

on Federal Facilities ..........................-. 24

Ill

The Complementary Nature of the Clean Air

Act and the Water Pollution Control Act,

and the Near Identity in Both Acts of Provi-

ions Controlling Federal Facilities, Requires

a Uniform Interpretation in Both Acts That

the Term “Requirements” Encompass Permit

Systems in Approved Pollution Control

PUI seteitsciipsiiecseseiiacaluedeeiieninildsialailacviinioneasiipiuiaiiantiniies 26

RTS Tad Te TIS Ere Pe Bea ie Le ee MD 32

TABLE OF AUTHORITIES CITED

Cases Page

Air Terminal Services Inc. v. Rentzel, 81 F.Supp.

eB ae 23

Alabama v. Seeber, 502 F.2d 1238 (Sth Cir.

Pee: 3, 6, 7, 8, 9, 11, 13, 21, 22, 26

Appalachian Power Co. v. EPA, 477 F.2d 495

8 Frere 22

California v. EPA, .... F.2d ....; 7 E.R.C. 1667 (9th

GOON tetichininiiennictnmemesinenel 8, 17, 26, 29, 30

California v. Stastny, No. 72-2905 (9th Cir., appeal

ge a ee 3

County of Milwaukee v. Veterans Administration

Center, 357 F.Supp. 192 (E.D. Wis., 1973) .... 21

Gauley Mountain Coal Co. v. Bureau of Mines, 224

oe fF es | eee 23

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

TET. ccnsspodsnnicipenniipltiaviadiioiediinimesaanaial Vo MeO On

Mattz v. Arnett, 412 U.S. 481 (1973) -.............. 26

Mayo v. United States, 319 U.S. 441 (1943) ... 20

NLRB v. Plasterers Local Union No. 79, 404 U.S.

Be COD sandincrtatattensuicinicineniiciinentiteniittiimndiis 8

RFC v. Beaver County, 328 U.S. 204 (1946) ........ 23

Smayda v. United States, 352 F.2d 251 (9th Cir.

RETEIIED . \scciecdlinnsclivesdilieicisiipesiccninianliidisihinenjipimipeniiianhapatnignags 23

United States v. Dickerson, 310 U.S. 554 (1940). 8

United States v. Litthe Lake Misere Land Co., Inc..,

RR ASSET on nD eee 23

United States v. Sharpnack, 355 U.S. 286 (1958)

California Health and Safety Code, Sec. 24260 ....

iv.

Statutes Page

California Health and Safety Code, Sec. 24263 ....

California Health and Safety Code, Sec. 24264 ....

California Health and Safety Code, Sec. 24269 ....

California Health and Safety Code, Sec. 39276 ..

California Health and Safety Code, Sec. 39012 ..1,

Cope ABT AGE, BOB. FB ccecccccccccceses: Tne eRe, aoe

i ENN cnr

Clean Air Act, Sec. 101(a)(3) . ~

Clean Air Act, Sec. 110 ....6, 7, 11, 13, 14, 21,

Clean Air Act, Sec. 110(a)(2)(c) ...00..ccce ec. 6,

Clean Air Act, Sec. 110(d) ...................2020200-. 7,

Clean Air Act, Sec.

FUE sutnnnincinieniesonsesbiens sa, &2,

CPG FREP AGE, TB. TREC) ccccceccccccccccccccccnccccccecees

Clean Air Act, Sec. l11(c)(1) 0.2.0...

I i anaes 12,

Clean Air Act, Sec. 112(d)(1) -....22.0.2.220222....20000

Cheam Ale Act, See. LIS(B)C1) ...cccccccocccccceceese 7,

EF ee ean

Cisem Alp Act, Sac. LIS(B)C1) ...cccccccccccccccccccccccee

Clean Air Act, Sec. 116 .................. 5, 15, 17, 18,

Clean Air Act, Sec. 118 -....... Fee es SS

ee 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 23,

sileeiaesbdeliestieidianeiabiisaieemstacmesiuammmeibinessel 26 28, 29, 30,

a fF Ff SO eee

Federal Assimilative Crimes Act, 18 U.S.C. Sec. 13

EEE EEE EEE EEE HEHEHE Oe

Federal Coal Mine Safety Act, 30 U.S.C. Sec. 478..

NY NNN ND WN

\©o

10

. 27

27

18

22

21

1]

21

21

21

22

21

21

30

10

25

32

31

22

22

Page

Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b).. 22

oo Se. Ae | oy , . Seaeenneemcmee ae 22

United States Code, Title 33, Sec. 1251(a) .......... 27

United States Code, Title 33, Sec. 1323 ................ 28

United States Code, Title 33, Sec. 1342 —........... 24

United States Code, Title 33, Sec. 1342(1) ........ 27

United States Code, Title 33, Sec. 1365 -............... 31

United States Code, Title 42, Sec. 1251(b) .......... 27

United States Code, Title 42, Sec. 1857 -............... 27

United States Code, Title 42, Sec. 1857(a)(3) .... 27

United States Code,Title 42, Sec. 1857c-5 ...... 11, 27

United States Code, Title 42, Sec. 1857c-5(a)(2)

GED scsesnmasesdsasocsesasnoentnanemmentsonnventatonseninessnnenatecastoon 13

United States Code, Title 42, Sec. 1857c-5(a)(2)

i 6, 13, 14, 18

United States Code, Title 42, Sec. 1857c-5(a) (2)

SD sdnpubicennnitnnienssaismnneenonnimanenmnemmpenemmmneceers 14

United States Code, Title 42, Sec. 1857c-5(a)(2)

GREE * crtclncscmcenetnesteantessonentemisnctinimeemneanncieeevcenes 14

United States Code, Title 42, Sec. 1857c-5(a)(2)

Ia RE eee 2 aoe ns a ee 14

United States Code, Title 42, Sec. 1857c-5(d) ....7, 22

United States Code, Title 42, Sec. 1857c-S(e) ...... 19

United States Code, Title 42, Sec. 1857c-5(f) .... 19

United States Code, Title 42, Sec. 1857c-8(a)(1)

United States Code, Title 42, Sec. 1857d-1 .......... 15

United States Code, Title 42, Sec. 1857f ............

censpemncmnenenneneunstecnsenatnininiidiaila 6, 7, 12, 13, 15, 28

United States Code, Title 42, Sec. 1957c-8(a)(1) .. 7

United States Code, Title 42, Sec. 4903(b) ........ 28

United States Code, Title 42, Sec. 4905 ....00000000.... 28

United States Constitution, Art. VI, cl. 2 ................ 20

Water Pollution Control Act, Sec. 101(a) ............ 27

Water Pollution Control Act, Sec. 101(a)(3) ...... 27

Water Pollution Control Act, Sec. 101(b) .......... 27

Water Pollution Control Act, Sec. 101(b)(1) ...... 27

Water Pollution Control Act, Sec. 301(a) ............ 27

Water Pollution Control Act, Sec. 313 ........ 3, 4, 18

scocucessonnesiisesiinilasenshuniiiaaasiammaaa 28, 39, 30, 31, 32

Water Pollution Control Act, Sec. 402 .......... 24, 30

Water Pollution Control Act, Sec. 505 .............. 30, 31

Water Pollution Control Act, Sec. 505(f) ............ 31

Water Pollution Control Act, Sec. 510 .................. 30

Miscellaneous

116 Congressional Record (1970), p. 19207 ........ 16

House-Senate Conference Committee Rep. No.

1783, 91st Cong. 2nd Sess.; U.S. Code Cong. &

Admin. News (1970), p. 5381 -...22...222.22..eeeeeeeeeee 17

Public Law 159; 69 Stat. 322 (July 14, 1955)

(“1983 AGE”) ...<cccssscssssssssnsmntnann 9

Public Law 88-365; 73 Stat. 646 (September 22,

1959) (°195D AGE") nccoccsccscnccesscecnsensnnnmnnane 9

CC LL

Vii.

Page

Public Law 88-206; 77 Stat. 392 (December 17,

ee 10

Public Law 90-148; 81 Stat. 485 (November 21,

Sg 10

Public Law 91-604; 34 Stat. 1713 (December 31,

ES = ee 10

Senate Report No. 91-1196, 91st Congress 2d Sess.

a 11

Senate Report No. 91-1196, 91st Cong., 2nd Sess.

EE 20

Textbooks

Bolbach, The Courts And The Clean Air Act, En-

vironmental Reporter, Monograph No. 19 (July

a 21

Comment, Local Control of Pollution from Federal

Facilities, 11 San Diego Law Review (1974),

ce x

Comment, Local Control of Pollution From Fed-

eral Facilities, 11 San Diego Law Review (1974),

ES ee 25

Luneburg, Federal-State Interaction Under The

Clean Air Amendments of 1970, 14 Boston

College Ind. & Com. L.R. (1973), pp. 637,

Ee 22, 24

United States Code Congressional and Admin-

istrative News (1970), p. 5360. .................... 16

IN THE :

Supreme Court of the United States

October Term, 1974

No. 74-220

COMMONWEALTH OF KENTUCKY, ex rel.

Ep W. Hancock, Attorney General,

Petitioner,

vs.

Russe_t E. Train, Administrator, ENVIRONMENTAL

PROTECTION AGENCY, ef al.,

Respondents,

On Writ of Certiorari to the United States Court

of Appeals for the Sixth Circuit.

interest of Amicus Curiae, State of California.

The interest of the State of California in this litiga-

tion is to seek legal clarification and assurance that

state and local air pollution control agencies have per-

mit authority over the numerous stationary sources of

air pollution operated by the federal government in

California.

In California, the primary responsibility for the con-

trol of air pollution from stationary sources lies with

local and regional air pollution control districts. Cali-

ain

fornia Health and Safety Code Section 39012. These

authorities have been granted broad powers by the Legis-

lature to “make and enforce all needful orders, rules

and regulations necessary or proper for the adminis-

tration of the district . . .” and to reduce air pollution.

Health and Safety Code Section 24260. Air pollution

control districts have specific authority to require own-

ers and operators of stationary air pollution sources

to obtain permits from the district prior to the con-

struction or operation of such sources. Health and Safety

Code Sections 24263, 24264. A major function of the

permit requirement in California air pollution control

law is to insure that the air pollution control authorities

are provided with “such information, analyses, plans or

specifications as will disclose the nature, extent, quan-

tity, or degree of air contaminants which are or may

be discharged by such sources[s].” Health and Safety

Code Section 24269. This data in turn facilitates the

air poilution control agency’s related authority to con-

dition the issuance of permits to operate or construct

air pollution sources, on the provision of specified con-

trol equipment or, in the case of mew sources, on

changes in the plans or specifications so that the dis-

tricts can comply with their directive to achieve and

maintain both state and federal ambient air quality

standards. Health and Safety Code Sections 24264,

39276.

California is particularly concerned that the Clean

Air Act not be interpreted in a way that would exempt

the numerous federal sources of air pollution from local

aniiun

and regional permit requirements. The Clean Air Act

imposes legal obligations on the state and local gov-

ernments to clean up air pollution from ail stationary

sources in order to achieve and maintain national

standards. The permit requirement is the fundamental

implementation and enforcement tool available to local

and regional air pollution control districts for comply-

ing with the federal requirements. California is, there-

fore, interested in legal assurances that its local, regional

and state air pollution control strategies are not im-

paired by exemptions given to federal stationary sources

from local and regional permit requirements.

Section 118 of the Clean Air Act Amendments of

1970, under review in this case, is virtually identical

to Section 313 of the Water Pollution Control Act

Amendments of 1972. California is, therefore, also

interested in legal clarification and assurances that its

permit program for implementing and enforcing the

Water Pollution Control Act Amendments of 1972 ap-

plies equally to the numerous federal sources of water

pollution in California.

California has already participated as amicus curiae

in this case before the Sixth Circuit Court of Appezls

(sub nomine Kentucky v. Ruckelshaus, 497 F.2d 1172

(6th Cir. 1974)), and in the similar cases of State of

Alabama v. Seeber, 502 F.2d 1538 (Sth Cir. 1974)

and California v. Stastny, No. 72-2905 (9th Cir.,

appeal docketed November 6, 1972). California is also

the plaintiff in California v. EPA, .... F.2d ....; 7 E.R.C.

1667 (9th Cir. 1975) which held that federal agencies

autfinn

and enclaves in California and Washington are subject

to state water pollution control permit requirements

under Section 313 of the Water Pollution Control Act

Amendments of 1972.

California and Georgia are familiar with the legal

questions presented and are vitally interested in assert-

ing their position that federal stationary sources of air

pollution are required under Section 118 of the Clean

Air Act Amendments of 1970 to comply with state and

local permit requirements.

Summary of Argument.

Successive amendments to the Clean Air Act since

the initial legislation in 1955 show that Congress has

progressively subjected operators of federal facilities to

federal, state and local pollution control authority. Sec-

tion 118 adopted in the 1970 amendments clearly

shows that Congress intended to further strengthen fed-

eral, state and local pollution control authority to in-

clude permit requirements over federal facilities. Re-

spondents, by introducing a spurious substance-pro-

cedure dichotomy in the statutory term “requirements”,

are arguing that federal facilities are exempt from even

federal permit requirements.

The plain statutory wording of Section 118 supports

the view that “requirements” includes permit require-

ments. To argue otherwise is to exempt non-federa! fa-

cilities as weli as federal facilities from permit requ’re-

ments, a result clearly inconsistent with the Clean Air

Act. Reference to other sections in the Clean Air Act,

_

such as Section 116, and to the legislative history, sup-

ports a broad interpretation of “requirements” to in-

clude permit requirements.

State and local pollution control permit requirements

are necessary elements in state pollution control plans.

If states are to fulfill their federally mandated pol-

lution control duties, operators of federal facilities must

be subject to state and local permit requirements.

Neither the Supremacy Clause nor the doctrine of

sovereign immunity insulate federal facilities from state

and local permit requirements. Section 118 of the Clean

Air Act, in itself, constitutes a waiver of sovereign im-

munity. The fact that permit requirements are approved

by EPA in state implementation plans, makes those per-

mit requirements binding on federal facilities.

The strong structural and terminological similarities

between the Clean Air Act and the Water Pollution

Control Act, especially with respect to provisions for

contiolling federal facilities, provides additional sup-

port for construing the term “requirements” as used in

both Acts to include permit requirements,

nition

ARGUMENT.

INTRODUCTION.

The single issue in this case is whether Section 118

of the Clean Air Act Amendments of 1970 (“Clean

Air Act”) (42 U.S.C. § 1857f) requires operators

of federal facilities to comply fully with federally ap-

proved state plans for implementation, maintenance

and enforcement of national ambient air quality stand-

ards or whether that section requires only that they

comply with the substantive standards and limitations

of such plans but not their permit provisions. The

resolution of this issue turns on the meaning of the

phrase “requirements respecting control and abatement

of air pollution” as it is used in Section 118.

Section 110 of the Clean Air Act requires the states

to prepare and submit to the EPA Administrator a

plan for implementing, maintaining and enforcing the

national ambient air quality standards throughout the

State.

Section 110 requires also the EPA Administrator to

approve state implementation plans if he determines

that the plans contain the content requirements specified

including:

“. . . provisions for establishment and operation

of appropriate devices, methods, systems, and pro-

cedures necessary to monitor, compile, analyze

data on ambient air quality. . . .” Section 110(a)

(2)(c); 42 U.S.C. § 1857c-5(a)(2)(C). (Em-

phasis added. )

Once approved, a state implementation plan achieves

the status of a federal regulation [Albama v. Seeber,

502 F.2d 1238 (Sth Cir. 1974)] which the Adminis-

anita

trator has the power to enforce. [/d.; Sections 110(d)

and 113(a)(1), 42 U.S.C. § 1857c-5(d) and § 1857

c-8(a)(1)].

Section 118 under review in this case provides that

operators of federal facilities

“. . . 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.”

Congress provided also in Section 118 that when the

paramount interest of the United States so requires,

the President may exempt federal facilities from com-

pliance with such requirements. When Sections 110

and 118 are read together, it is apparent that Con-

gress intended operators of federal facilities to comply

with federally approved state implementation plans, un-

less exempted by the President.’ The Sixth Circuit,

however, has imposed a gloss on Section 118 the effect

of which is to exempt operators of federal facilities

from permit systems, procedures and requirements con-

tained in approved state implementation plans. Ken-

tucky v. Ruckelshaus, 497 F.2d 1172 (6th Cir. 1974).

To reach its decision, the Sixth Circuit had to conclude

that the term “requirements” as it is used in Section

118 means only substantive requirements as distin-

guished from procedural requirements. The Sixth Cir-

cuit, relying on a “strained reading” of the legislative

history of Section 118,’ reasoned that Congress clearly

waived exclusive jurisdiction over federal facilities

with respect to compliance with substantive clean air

standards, but intended no waiver with respect to pro-

cedural requirements.

1Clean Air Act Section 118; 42 U.S.C. § 1857f.

2Alabama v. Seeber, 502 F.2d 1238, 1246 (Sth Cir. 1974).

—_— =

Subsequently, the Fifth Circuit considered the same

issue, rejected the reasoning ef the Sixth Circuit as

unpersuasive and held that operators of federal facilities

must comply fully with state plans—including their per-

mit or “procedural” provisions. Alabama v. Seeber, 502

F.2d 1238 (Sth Cir. 1974). The Fifth Circuit relied

on the scheme of the Act as a whole, the words of

Section 118, and the Congressional purpose for enacting

that section. The Fifth Circuit noted that the legislative

history of Section 118 was somewhat ambiguous, and

consequently declined to permit that history “to con-

trol the customary meaning of [the] words” of Section

118. NLRB vy. Plasterers Local Union No. 79, 404

U.S. 116, 129 (1971); and United States v. Dickerson,

310 U.S. 554, 562 (1940).

More recently, the Ninth Circuit in a substantially

similar case,’ has held that operators of federal facili-

ties must comply fully with state “requirements respect-

ing control and abatement of [water] pollution”—in-

cluding state permit or “procedural” requirements.

Recognizing “the strong structural similarities between

the Clean Air Act and the 1972 Water Pollution Con-

trol Act Amendments”, the Ninth Circuit relied in

part upon the reasoning of the Fifth Circuit in the

Seeber case. In doing so, that Circuit implicitly rejected

the reasoning if not the decision of the Sixth Circuit

in the Kentucky v. Ruckelshaus case.

Amici Curiae concur with the Fifth and the Ninth

Circuits. Clearly, by enacting Section 118, Congress to

some extent intended to waive its exclusive legislative

jurisdiction and require operators of federal facilities to

8California v. EPA, .... F.2d ....; 7 E.R.C. 1667 (9th Cir.

1975).

eniiies

adhere to federally approved state implementation

plans. Respondents do not dispute this. Kentucky v.

Ruckelshaus, supra, at 1172; Alabama v. Seeber,

supra, at 1246-47. Respondents dispute only the scope

of this waiver. Accordingly, the issue is whether Con-

gress intended to waive its exclusive jurisdiction with

respect to “the enforcement mechanisms of federally

approved state implementation plans.” Alabama vy.

Seeber, supra, at 1247. Amici Curiae submit that

the Clean Air Act’s history and purpose, its general

scheme and the words of Section 118 all show unequiv-

ocably that Congress intended that operators of federal

facilities shall comply fully with federally approved

state implementation plans, —— the permit pro-

visions of such plans.

I

Federal Facilities Must Comply With State and Local

Permit Requirements ‘or Controlling and Abating

Air Pollution.

A. Successive Amendments to the Clean Air Act Show That

Congress Has Increasingly Subjected Operators of Federal

Facilities to Federal, State and Local Control Authority.

When Congress enacted the original version of the

Clean Air Act in 1955,‘ it declared “the policy of

Congress to preserve and protect the primary responsi-

bilities and rights of the states and local governments

in controlling air pollution.” (1955 Act, section 1.)

Congress amended the Clean Air Act in 1959,”

‘Public Law 159; 69 Stat. 322 (July 14, 1955) (“1955

Act”).

‘Public Law 88-365; 73 Stat. 646 (September 22, 1959)

(“1959 Act”).

=——=

1963,° 1967," and 1970,° each time reiterating the

policy that the United States should support and assist

states and local governments to fulfill their primary

responsibility to control and abate air pollution. Addi-

tionally, by each successive amendment Congress es-

tablished a more comprehensive national system within

which state and local governments might more ef-

fectively perform their functions. In this connection,

the successive amendments manifest Congress’ increas-

ing realization and ultimately its determination that to

assure air quality, states must have authority sufficient

to regulate all sources of air pollution within their

borders, including sources from federal enclaves.

As enacted in 1955, the Clean Air Act made no

reference to federal facilities; however, in 1959, Con-

gress added Section 118 to require operators of federal

facilities to “cooperate” with state and local air pollu-

tion control agencies “to the extent practicable and con-

sistent with the interests of the United States and with

available appropriations . . .” (1959 Act, § 118.)

In 1963, another amendment authorized the HEW

Secretary to require operators of federal facilities to

obtain (revocable) permits from him before discharg-

ing certain pollutants into the air. (1963 Act § 7(b).)

The 1963 Act also required operators of federal fa-

cilities to provide the HEW Secretary with plans, spec-

*Public Law 88-206; 77 Stat. 392 (December 17, 1963)

(“1963 Act”).

7Public Law 90-148; 81 Stat. 485 (November 21, 1967)

(“1967 Act”).

‘Public Law 91-604; 34 Stat. 1713 (December 31, 1970)

(“Clean Air Act”).

ifications and other information deemed by HEW to

be relevant to the issuance of permits. Jd. These same

provisions were retained in the 1967 Act. (1967 Act,

§ 111.)

By the Clean Air Act Amendments of 1970, Con-

gress substantially strengthened the Act. For the first

time, Congress required the States to develop plans to

attain air quality standards within a specific period of

time. (Clean Air Act § 110; 42 U.S.C. § 1857c-5.)

At the same time, Congress enacted the current Section

118. The legislative history of Section 118 shows that

Congressional displeasure with the performance of fed-

eral facilities under the voluntary compliance provisions

of Section 111 of the 1967.Act prompted Congress to

strengthen that section to require operators of federal

facilities to comply with federal, state and local regu-

lations. Alabama v. Seeber, supra, 1244-45; S. Rep. No.

91-1196, 91st Congress 2d Sess., at 23 (1970). The

new “get tough” attitude manifested by Congress in the

1970 Amendments (both with respect to the states and

federal facilities) provides every indication that by

enacting Section 118, Congress fully intended operators

of federal facilities to comply unqualifiedly with fed-

erally approved state implementation plans.

A comparison of Section 111 of the 1967 Act with

Section 118 of the 1970 Act shows this to be the case.

The 1967 Act, Section 111(b), provided that under

certain circumstances, the HEW Secretary could re-

quire operators of federal facilities to obtain permits

and to provide the Secretary with pertinent data with

—-

respect to such permits. There is every reason to believe

that in adopting the current Section 118, Congress in-

tended the EPA Administrator (the successor to the

HEW Secretary) to continue to have this permit au-

thority over federal facilities. However, the Adminis-

trator has this authority pursuant to Section 118 only

if the term “requirements” as it is used in Section 118

encompasses procedural as well as substantive require-

ments. This becomes apparent when it is considered

that Section 118 explicitly requires federal facilities

to comply with federal (as well as state and local) re-

quirements. Respondents’ construction of Section 118,

that the term “requirements” only means substantive

requirements, yields the anomalous result that EPA

itself is powerless to impose permit requirements on fed-

eral facilities under its preemptive authority over stand-

ards of performance for new sources (§ 111) and

hazardous emissions (§ 112), or otherwise. Respond-

ents’ interpretation of Section 118 in effect argues that

Congress intended, in the 1970 Amendments, to weak-

en the control provisions over federal facilities. In light

of Congress’ clear intent to strengthen the provisions

of the former Section 111 (1967 Act), such an inter-

pretation clearly is untenable.

B. Permit Requirements Are “Requirements Respecting Control

and Abatement of Air Pollution” With Which Federal Facil-

ities Must Comply.

Section 118 of the Clean Air Act expressly requires:

“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

entfinn

discharge of air pollutants, shall comply with Fed-

eral, State, interstate and local requirements re-

specting control and abatement of air pollution to

the same extent that any person is subject to such

requirements . . .” 42 U.S.C. 1857f. (Emphasis

added. )

Respondents urge that the term “requirements,” as

used in the section, encompasses “substantive” but not

procedural requirements and therefore the section does

not direct operators of federal facilities to comply with

federal or state permit procedures promulgated under

Section 110 of the Act. Neither the scheme of the Act

nor the words of Section 118 provide any support for

Respondents’ interpretation. In fact, Respondents have

raised a “semantical red herring.” Alabama v. Seeber,

supra, 1245.

Initially it should be recalled that Kentucky’s air pol-

lution control permit system at issue here has been

approved by EPA as a part of Kentucky’s Implementa-

tion Plan, required to be prepared and adopted by

Section 110 of the Clean Air Act.

Section 110 clearly contemplates the use of state and

local permit systems or requirements, as it requires

state implementation plans to contain specified compo-

nents including the following:

1. “Emission limitations, schedules and time-

tables for compliance with such limitations, and

such other measures as may be necessary to insure

attainment and maintenance . . . [of the national

standards} . . .” 42 U.S.C. 1857c-5(a)(2)(B).

(Emphasis added. )

2. A “. . . provision for establishment and

operation of appropriate devices, methods, systems

antitien

and procedures necessary to (1) monitor, compile

and analyze data on ambient air quality . . .” 42

U.S.C, 1857c-5(a)(2)(C). (Emphasis added. )

3. A “procedure” for pre-construction review

of the location of new sources. Such “procedure”

must provide for adequate legal authority to pre-

vent construction if the new source would prevent

attaining or maintaining the national standards in

the air basin. The “procedure” must also require

the owner or operator of the proposed new source

to submit to the state such information as may be

necessary to determine if the new source would

prevent attainment or maintenance of the national

standards. 42 U.S.C. 1857c-5(a)(2)(D).

4. Legal authority adequate to carry out the

implementation plan. 42 U.S.C. 1857c-5(a)(2)

(F)(i).

5. “Requirements for installation of equipment

by owners or operators of stationary sources to

monitor emissions from such sources.” 42 U.S.C.

1857c-5(a)(2)(f) (ii).

The use of the words like “methods”, “systems” and

“procedures” in Section 110 certainly supports the use

of permit requirements by state and local air pollution

control agencies. The question is whether the permit

requirements apply to operators of federal facilities.

Implicit in Respondents’ argument is the recognition

that non-federal facilities must comply with federal.

state and local permit requirements (as well as stand-

ards and limitations) in “applicable implementation

plans.”

Yet the plain wording of Section 118 requires that

federal facilities “. . . 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.” Section 118;

42 U.S.C. § 1857f. (Emphasis added.) Since “any

person,” for example a steel mill, is subject to both pro-

cedural and substantive state and local air pollution

control requirements, it follows necessarily that opera-

tors of federal facilities, “to the same extent as any

person,” are subject to all requirements contained in

“applicable implementation plans’—not just the so-

called substantive requirements. To conclude otherwise

compels that the term “requirements,” as applied to “any

person,” be interpreted differently from the same term

as applied to operators of federal facilities. This is con-

trary to common sense as well as to accepted rules of

construction.

Reference to Section 116 of the Clean Air Act also

supports our conclusion that “requirements” as used in

Section 118 includes permit requirements.

It is readily apparent that Congress distinguished be-

tween 1) standards and limitations and 2) requirements

respecting control and abatement of air pollution in

Section 116 of the Clean Air Act:

“.. . nothing in this chapter shall preclude or deny

any state or political subdivision thereof to adopt

or enforce (i) any standard or limitation respect-

ing emissions of air pollutants or (2) any require-

ment respecting control and abatement of air pollu-

tion...” (Emphasis added.) 42 U.S.C. § 1857d-1.

The use of the term “requirement” clearly is intended

to mean something other than “standard” or “limita-

tion.” Just as clearly, “requirement” is a much broader

term than either “standard” or “limitation,” and in-

=e

cludes permit systems and other measures necessary

for enforcement of state implementation plans.

Although it is not necessary to go behind the clear

meaning of the phrase “state and local requirements

respecting the control and abatement of air pollution,”

the legislative history of Section 118 in particular, and

the Clean Air Act generally, only add force to our con-

clusion that federal facilities are required to comply with

permit requirements.

When framing the language of Section 118, both the

House and Senate were sensitive to the recalcitrance

and inaction by federal air polluters in the clean-up

effort. “Instead of exercising leadership in eliminating

air pollution, the federal government has tended to be

slow in this respect.” H.R. No. 91-1146, 91st Cong.,

2d Sess.; U.S. Code Cong. & Admin. News, 5360

(1970). During floor debate on the amendments, Rep.

William Springer, ranking minority member of the

House Committee on Interstate and Foreign Commerce

again stated the problem:

“One of the frustrating aspects of air pollution

legislation is the presence of large federal installa-

tions either operated directly by the Government or

under its direction which contaminate the atmo-

sphere on a large scale. How can we expect coop-

eration or credibility for the governmental effort

when the installations controlled by Uncle Sam are

some of the worst polluters? The Federal Govern-

ment as much as some private business has dragged

its feet for purely economic reasons. Allowing the

Government to remain immune from the rules

which we impose on others is wrong... .”

116 Cong. Rec. 19207 (1970). (Remarks of Rep.

Springer.) ‘Emphasis added. )

— =

The very brief, almost passing, discussion of Section

118 in the House-Senate Conference Report suggests that

there were no significant congressional differences of

opinion over the broad obligations imposed on federal

facilities by Section 118.

The House-Senate conference report on Section 118

States in summary form:

“The House bill and the Senate amendment

declared that Federal departments and agencies

should comply with applicable standards of air

quality and emissions.”

One commentator has concluded that the legislative

history of Sections 116 and 118 is only a summary and

should not be taken as conclusive of the meaning of

these provisions.

“Read together the two sections and their legisla-

tive history suggest that:

“1. The legislative history, being only a sum-

mary of the proposed law, should not be read

too narrowly and should not be taken as conclu-

sive of the meaning of the provisions; and

“2. The phrase ‘requirements respecting con-

trol and abatement of air pollution’ was not in-

tended to encompass merely emission standards

but rather the whole gamut of control measures

including operating permits.”*”

*House-Senate Conference’ Committee Rep. No. 1783, 91st

Cm. 2nd Sess.; U.S. Code Cong. & Admin. News 5381

(1970).

“Comment, Local Contro! of Pollution from Federal Facili-

ties, 11 San —— L. Rev. 972, 982-83 (1974); In California

v. E.PA., ... F.2d > 7 ERC. 1667, 1671 (9th Cir.

1975), the Ninth Circuit followed a similar «alysis of the legis-

(This footnote is comtinued om next page)

alice

Amici curiae submit therefore that the term “ro-

quirement,” as used in Sections 118 and 116, should be

interpreted as it is customarily used, to include matters

of substance and procedure. Respondents’ unordinary

and strained interpretation should be rejected.

C. State and Local Permit Requirements Are Integral and

Necessary Elements of Implementation Plans for Con-

trolling Stationary Sources of Air Pollution, Including Fed-

eral Facilities.

Permit requirements have long been recognized as

essential mechanisms for comprehensive implementation

and enforcement of law. The Sixth Circuit’s state-

ment that “A permit has absolutely nothing to do with

air quality” is patently erroneous.

The permit system, as Congress has recognized, is a

necessary element of effective state implementation

plans for controlling and abating air pollution. § 110

(a)(2)(C); 42 U.S.C. § 1857c-5(a)(2)(C).

Permit applications for authority to construct mew

sources provide essential data on the nature and volume

of pollutants that the new source will emit. Permit

applications also provide detailed information on the

location and times when pollutants will be emitted.

Permit applications also quickly disclose whether the

new source will use the requisite or best available con-

lative hi of section 313 of the Water Pollution Control Act,

and concl that the summary discussion of the term “require-

ments” in the committee reports should not be taken as disposi-

tive of Congressional intent. The Ninth Circuit went on to hold

that “requirements” in section 313 includes state permit require-

ments with which federal facilities must comply.

—iftGe

trol technology which are mandated by the Clean Air

Act’s strategy for controlling stationary sources. 42

U.S.C. § 1857c-5(e) and (f). If a proposed new source

is not utilizing the requisite control technology, the

permit requirement enables remedial action to be

taken prior to construction thereby avoiding costly de-

lays in enforcement or retro-fitting of the required tech-

nology. Permit requirements also facilitate monitoring

of emissions by the air pollution control agency, and

are an effective means for providing the agency with

a comprehensive inventory of total emissions in the air

basin. An up-to-date and comprehensive inventory of

emissions in the air basin is essential to make decisions

whether additional new sources should be allowed or

whether variances should be granted without preventing

achievement and maintenance of the national standards.

The burden on federal stationary sources imposed by

state and local permit requirements is not substantial

especially when it is conceded that the Clean Air Act

does require federal facilities to comply with the time-

table for achieving and maintaining the national stand-

ards. If federal facilities are exempted from permit

requirements, however, there is no way to tell whether

all the stationary sources in the air basin are reducing

their emissions to achieve and maintain the national

standards. Non-federal stationary sources, which do

provide complete data through permit requests, thus

may be put in the position of having to reduce their

emissions more than is proportionately required to

achieve and maintain the national standards. Propor-

="

tionate reduction and emissions from all stationary

sources in an air basin cannot be effectively achieved

if federal stationary sources are exempted from permit

requirements.

Federal stationary sources often constitute a major

contributor of pollution in a given air basin.’ As a

matter of practical necessity, therefore, the control strat-

egy for the air basin must apply equally to federally

operated and non-federal sources.

IT

The Supremacy Clause and Sovereign immunity Doc-

trine Do Not Insulate Federal Facilities From State

and Local Permit Requirements.

A. The Supremacy Clause Is Inapplicable to Bar State Permit

Requirements.

Section 118 unambiguously states that federal facili-

ties “shall comply” with state “requirements respect-

ing control and abatement of air pollution.” Where

Congress affirmatively declares that federal facilities or

property is subject to state regulation, the Supremacy

Clause (Art. VI, clause 2 of the United States Consti-

tution) no longer insulates federal facilities from the

specified kind of state regulation. Mayo v. United

States, 319 U.S. 441, 446, 448 (1943).

Since it is our view that the term “requirements” in

Sections 116 and 118 includes permit requrements, it

necessarily follows that Section 118 meets the affirma-

tive declaration test which this Court set out in Mayo

v. United States, supra, at 448. The Supremacy Clause

therefore cannot operate to prevent state and local air

pollution control agencies from applying their permit

"§. Rep. No. 91-1196, 91st Cong., 2nd Sess. 37 (1970).

—

requirements to federal stationary sources of air pollu-

tion.

B. Federal Facilities Are Not Immune From State Suits

Enforcing Section 118.

Amici curiae agree with the Fifth Circuit’s succinct

observation on the sovereign immunity argument in Ala-

bama v. Seeber, supra, at 1248:

“Little or no inference is required to conclude

that section 118 embodies a waiver of sovereign

immunity with respect to federal facilities.”’*

As we have previously pointed out, the Clean Air

Act in Sections 111(c)(1), 112(d)(1) and 114(b)

(1) specifically exempts certain federal facilities from

state enforcement authority delegated by EPA pur-

suant to those sections. Section 110, which requires

states to enforce “applicable implementation plans,”

however, contains no such exemptions for Federal fa-

cilities from state enforcement authority. If Congress

had not intended to consent to suits against federal fa-

cilities over compliance with permit (or other) require-

ments it would have said so just as it did in Sections

111, 112 and 114. Both the plain wording in Section

118 and Section 110’s failure to exempt federal facil-

ities from state implementation plan requirements dem-

onstrate that sovereign immunity from state enforce-

ment of permit regulations has been waived.

12Additional authorities concluding that Congress has waived

sovereign immunity in Section 118 are Bolbach, The Courts

And Clean Air Act, Environmental Reporter, Monograph

No. 19, page 25 (July 12, 1974) and County of Milwaukee

v. Veterans Administration Center, 357 F.Supp. 192 (E.D.

Wis., 1973).

==

C. State and Local Permit Requirements in Approved State

Implementation Plans Are Binding on the Federal Govern-

ment; Federal Stationary Sources Must Comply With Such

Permit Requirements.

As we have already indicated, emission reduction

measures and other “requirements respecting control and

abatement of air pollution” are the heart of imple-

mentation plans. Whether such regulations and require-

ments are adopted by the states and approved by EPA

or, alternatively, promulgated by EPA when a state

fails to submit an approvable plan or portion of a plan,

these regulations and requirements constitute an “ap-

plicable implementation plan” and become federal law

on approval. Sections 110(d) and 113(a)(1); 42

U.S.C. Sections 1857c-5(d) and 1857c-8(a)(1).

Appalachian Power Co. v. EPA, 477 F.2d 495, 499

(10th Cir. 1973); Alabama v. Seeber, supra, 1248;

Luneburg, Federal-State Interaction Under The Clean

Air Amendments of 1970, 14 Boston Col. Ind. &

Com. L.R. 637, 640 (1973).

Permit requirements, applicable to federal stationary

sources as well as non-federal facilities, contained in

approved state implementation plans thus achieve the

status of federal law and are thereby binding on the

federal government and federal stationary sources.

Congress clearly has the power to adopt as federal

law the laws and regulations of a state. United States

v. Sharpnack, 355 U.S. 286 (1958). Congressional

legislation has often “borrowed” or adopted state laws

and regulations in order to implement federal policies.

E.g., Federal Tort Claims Act, 28 U.S.C. section

1346(b): Federal Assimilative Crimes Act, 18 U.S.C.

Section 13; Federal Coal Mine Safety Act, 30 U.S.C.

Section 478; Hot Oil Act, 15 U.S.C. § 715.

=— ss

Where there is federal adoption or “borrowing” of

State law to implement or promote the purposes of a

federal statutory scheme, state interpretations of “bor-

rowed” state law have been held binding on the

federal government in a number of cases. Gauley Moun-

tain Coal Co. v. Bureau of Mines, 224 F.2d 887 (4th

Cir. 1955); RFC v. Beaver County, 328 U.S. 204

(1946).

It is only where the state law or regulation (and

the state interpretation) is inconsistent with the federal

statutory scheme or policy or where the state law

would violate the Constitution, that courts have not

upheld state laws or have exempted federal enclaves

from the application of state laws. Air Terminal Services

Inc. v. Rentzel, 81 F.Supp. 611 (ED Va, 1949);

Smayda v. United States, 352 F.2d 251 (9th Cir.

1965); United States v. Little Lake Misere Land Co.,

Inc., 412 U.S. 580, 595 (1973).

In this case, however, the state laws and regulations

(permit requirements) clearly are consistent with the

federal statutory scheme and policy of controlling and

abating air pollution everywhere in the nation, includ-

ing pollution emitted from federal enclaves. In placing

major emphasis on state implementation plans, Con-

gress clearly intended that state laws, regulations and

requirements which implement the objectives of a con-

trol strategy and the purposes of the Clean Air Act

apply equally to federal enclaves and facilities. The

fact that Section 118 of the Clean Air Act specifically

singles out federal facilities for equal treatment only

adds weight to our view that state laws and regulations

adopted as federal law by the federal government to

implement congressional statutes are binding on fed-

eral enclaves and stationary sources of pollution.

—

Amici curiae submit that the proper test in re-

viewing the applicability of state laws and regulations

affecting federal stationary sources contained in ap-

proved implementation plans is to determine | ) whether

such state laws and regulations have been properly re-

viewed and approved by EPA, 2) whether such state

laws and regulations aid in the attainment and main-

tenance of the national ambient air quality standards;

and 3) whether upholding applicability of state laws

and regulations to federal stationary sources or en-

claves would prevent attainment and maintenance of

the national air quality standards by the congressional-

ly prescribed times, would frustrate the purposes of the

Clean Air Act or would violate the Constitution.”

Amici curiae submit that using this test, the applica-

tion of Kentucky’s permit requirements (approved by

EPA) to federal enclaves and stationary sources of air

pollution is clearly supportable.

D. Permit Requirements Do Not Constitute a Significant Addi-

tional Burden on Federal Facilities.

It is not contested that federal facilities must, at a

minimum, comply with federal, state, interstate and

local air pollution control standards and limitations.

As we have previously argued, the permit requirement

is essentially a means to insure compliance with the

standards. This is particularly true in the case of the

permit programs [National Pollutant Discharge Elim-

ination System or NPDES] required to be implemented

by Section 402 of The Federal Water Pollution Con-

trol Act Amendments of 1972. 33 U.S.C. Section 1342.

'8§ee Luneburg, Federal-State Interaction Under The Clean

Air Amendments of 1970, 14 Boston College Ind. & Com.,

L.R. 637, 643-46 (1973).

—_

Therefore “[{i]f a federal agency must comply with

local substantive law and local permits must issue as

long as such substantive law is obeyed, then the effect

of the permit procedure solely is to enable the local

government to determine if the agency is indeed obey-

ing the law. In this sense the permit procedure imposes

no additional burden on the federal agency since it is

already legally obligated to do all those things which

will entitle it to a permit.” Comment, Local Control of

Pollution From Federal Facilities, 11 San Diego L. Rev.

972, 987 (1974).

The fact that state and local permit requirements

carry the power to stop the operation or construction

of federal air pollution sources (by denyng or re-

voking permits), does not mean that a significant ad-

ditional burden has been imposed on the federal fa-

cilities. The denial or revocation of a permit to operate

or construct can only be exercised in order to achieve

or maintain federal, state, interstate and local air qual-

ity standards which federal facilities are concededly re-

quired to obey. The only burden imposed on the federal

facility is, therefore, the burden of seeking administra-

tive or judicial relief from permit revocations or denials

it believes are unnecessary to achieve and maintain state

and national air quality standards.

In any event, it is quite apparent that Congress has

not granted state and local governments total control

over federal facilities through Section 118. Section 118

expressly gives the President authority to exempt in-

dividual federal facilities from federal, state and local

“requirements.”

For those reasons, amici curiae believe that Con-

gress has affirmatively declared its intent to subject fed-

eral facilities to state and local permit requirements and

has consented to enforcement actions.

= =

Ill

The Complementary Nature of the Clean Air Act and

the Water Pollution Control Act, and the Near

Identity in Both Acts of Provisions Controlling

Federal Facilities, Requires a Uniform Interpreta-

tion in Both Acts That the Term “Requirements”

Encompass Permit Systems in Approved Pollution

Control Plans.

Amici curiae submit that in this case, the “strong

structural and terminological similarities between the

Clean Air Act and the 1972 Water Pollution Control

Act Amendments” (“Water Act”), show that the

Court should refer to the Water Act Amendments as an

aid to interpreting Section 118 of the Clean Air Act.

Mattz v. Arnett, 412 U.S. 481, 505, n. 25 (1973).

In fact the issue raised by the case before this Court

cannot be resolved definitively without considering the

same issue arising under the Water Act.’* Moreover,

the provisions of the Water Act Amendments compel

the conclusion that with respect to both Acts, Congress

intended operators of federal facilities to comply fully

with federal or state requirements respecting control

and abatement of pollution including permit provisions

of federally approved state plans. The two Acts mani-

fest a parallel Congressional purpose, structure and

design, and in pertinent parts, use the same language.

The Congressional purpose underlying each Act is

substantially identical. In enacting the Water Act, Con-

“California v. EPA, .... F.2d ..... 7 E.R.C. 1667 (9th Cir.

1975).

'5Compare Alabama v. Seeber, supra, to California v. EPA,

supra.

= =

gress declared that its objective is “to restore and main-

tain the chemical, physical and biological integrity of

the Nation’s waters.” (§ 10! (a); 33 U.S.C. § 1251(a).)

Similarly, with respect to the Clean Air Act, Congress

declared that its objective is “to protect and enhance

the quality of the Nation’s air resources .. .” (§ 101

(b)(1); 42 U.S.C. § 1857.)

The structure and design of the Acts also is sub-

stantially the same. In each Act, Congress recognized

that state and local governments have the primary re-

sponsibility for preventing and controlling pollution.

Section 101(b) of the Water Act declares in part that

“fijt is the policy of Congress to recognize, preserve,

and protect the primary responsibilities and rights of

the states to prevent, reduce and eliminate pollution.”

(42 U.S.C. § 1251(b).) Section 101(a)(3) of the

Clean Air Act declares “that the prevention and con-

trol of air pollution at its source is the primary responsi-

bility of states and local governments.” (42 U.S.C.

§ 1857(a)(3).) Also in each Act, Congress intended

that the states should develop and with the Administra-

tor’s approval, administer clean air implementation

plans (42 U.S.C. § 1857c-5) or water pollution con-

trol programs (33 U.S.C. § 1342(1) to assure com-

pliance with air and water standards established by the

respective Acts. And in each Act, Congress established

timetables within which the states must achieve specified

standards of water and air quality. Water Act, § 301

(a); Clean Air Act § 110.)

—23—

Finally, Congress used precisely the same words in

each Act to insure that federal facilities would be

bound to comply with all pollution control and abate-

ment requirements in federally approved state imple-

mentation plans. Both Section 118 of the Clean Air

Act and Section 313 of the Water Act require that

operators of federal facilities:

“.. . shall comply with Federal, State interstate

and local requirements respecting control and

...” 42 US. § 1857f; 33 U.S.C. § 1323.”

Additionally, Section 118 of the Clean Air Act and Sec-

tion 313 of the Water Act both provide that “.. . [T]he

|

.

|

tion of products” 42 U.S.C. § 4905 (emphasis added). This

use of the term “requirements” in the

Noise Act includes “licensing” and permit systems or programs.

The near identity of the Noise Act’s provision governing com-

pliance by federal facilities with state and local “requirements”,

with the parallel provisions in the Clean Air and Water Acts, is

further support for a uniform interpretation that intended federal

facilities to comply with state and local permit requirements

respecting the control and abatement of (1) air pollution,

(2) water pollution and (3) noise pollution.

=— =

President may exempt any [effluent or emission]

source of any department, agency, or instrumentality in

the executive branch from compliance with any such

requirements if he determines it to be in the paramount

interest of the United States to do so. . . .”

Section 313 of the Water Pollution Control Act

(like Section 118 of the Clean Air Act and for all the

reasons set forth, supra, with respect to the Clean Air

Act) requires operators of federal facilities to comply

fully with state “programs” respecting control and abate-

ment of pollution including state permit programs. Sig-

nificantly, however, the Water Pollution Control Act,

for one additional reason, more strongly manifests

the intent of Congress that operators of federal facili-

ties comply fully with state permit regulations.

Specifically, Section 313 provides that operators of

federal facilities shall comply with federal and state

“requirements .. . , including the payment of reasonable

service charges.” The phrase regarding service charges

clearly refers to those service “charges incident to state

permit programs.” California v. EPA, .... F.2d ....,

7 E.R.C. 1667, 1671-1672 (9th Cir. 1975). No other

meaning is possible, for as the Ninth Circuit pointed

out in California v. EPA, supra, if the word “require-

ments” as it is used in Section 313 were interpreted

to refer only to substantive effluent standards and limi-

tations, then the phrase “including the payment of rea-

sonable service charges” would be a non sequitur."

In California v. EPA, supra, 7 E.R.C. 1667, 1671, respond-

ents counter this by contending that “reasonable service charges”

(This footnote is continued on next page)

=

There is another parallel between the Clean Air Act

and the Water Pollution Control Act. Section 116 of

the Clean Air Act, as we have argued, distinguishes

between “standard or limitation respecting emissions of

air pollutants” and “any requirement respecting control

or abatement of pollution”, by separating the two

phrases with the disjunctive “or”. Section 510 of the

Water Pollution Control Act uses the identical struc-

ture and language in making the same distinction ex-

cept that “discharges of pollutants” is substituted for

“emissions of air pollutants.” Clearly this shows that

when Congress used the phrase “any requirement re-

specting control or abatement of pollution” in Sections

116 and 118 of the Clean Air Act and in Sections

313 and 510 of the Water Pollution Control Act, Con-

gress intended “any requirement” to be broader than

“standard or limitation,” to include permit systems, pro-

grams or procedures.

The Water Pollution Control Act Amendments of

1972 make explicit references to permits and permit

programs in Sections 402 and 505. In Section 402, the

Water Pollution Control Act sets up the National Pollu-

tant Discharge Elimination System or NPDES which

expressly requires a permit program for assuring com-

pliance with water quality standards. Section 505

refers to those for state and local sewage treatment

governmental bodies must y public utility services to federal

agencies free of normal user charges. Hence, there would be no

need for Congress to explicitly direct federal agencies to pay

their full share of the m sewer system costs.” California

v. EPA, supra, 7 E.R.C. 1667, 1671. On the other hand,

reasonable service charges, incident to a permit program, might

be deemed sufficiently in the nature of a tax to require Con-

i consent to become * rly payable federal

tions.” California v. EPA, supra, 7 E.R.C. 1667, 1672.

a

afi

authorizes citizen suits to enforce the Water Pollution

Control Act against any person including the United

States. Section 505(f) defines “effluent standard or

limitation” to mean, among other things:

. . » & permit or condition thereof issued under

section 402 of this Act, which is in effect under

this Act (including a requirement applicable by

reason of section 313 of this Act).” 33 U.S.C.

§ 1365. (Emphasis added. )

Section 505(f) in itself strongly suggests that Section

313 of the Water Act, which mandates operators of

federal facilities to comply with federal, state and local

pollution control requirements, must be interpreted to

include mandatory compliance with state and local

permit programs.” At a minimum, the express federal

consent to citizen suits to enforce permit requirements

in Section 505 clearly negates the reasoning of the Sixth

Circuit in Kentucky v. Ruckelshaus, which justified

exemption of federal facilities from state suits to enforce

air pollution control permit requirements on the ground

that the Clean Air Act’s citizen suit provision (Sec-

tion 304) does not expressly authorize permit enforce-

ment suits."” The fact that the Clean Air Act does

not expressly refer to permit systems or programs does

not mean that operators of federal facilities must com-

ply with state water pollution permit requirements

but not state air pollution permit requirements. It would

be plainly irrational to attribute different meanings to

the federal compliance provisions of the Clean Air and

18Comment, Local Control of Pollution from Federal Facili-

ties, 11 San Diego L.R. 972, 992 (1974).

Kentucky v. Ruckelshaus, 497 F.2d 1172, 1176 (6th

Cir. 1974).

=

Water Pollution Control Acts when these provisions

(§§ 118 and 313) contain identical wording.”

In summary, the remarkable similarity and near

identity of certain parallel provisions of the Clean

Air and Water Pollution Control Acts require that, at

least the parallel provisions be uniformly interpreted.

Section 118 of the Clean Air Act and Section 313

of the Water Pollution Control Act being parallel

provisions and nearly identically worded, admit no other

rational interpretation other than mandating operators

of federal facilities to comply with federal, state and

local air and water pollution control permit require-

ments.

Conclusion.

In view of the plain language used by Congress in

Section 118, ordering operators of federal facilities to

comply with federal, state and locai air pollution con-

trol “requirements,” it is surprising that so many federal

facilities have resisted compliance with state and local

permit requirements which are essential for the states to

fulfill their responsibilities to enforce implementation

plans required by the Clean Air Act. There is nothing

in either the legislative history of Section 118 or in the

statutory language which supports the so-called sub-

stance procedure distinction urged by Respondents. On

the contrary, resort to familiar rules of statutory con-

struction compels the conclusion that the term “require-

ments” used in context includes permit requirements.

Parallel provisions in the Water Pollution Control Act

of 1972 and the strong similarity between the two

statutes help clarify our position that operators of

*Comment, Local Control of Pollution from Federal Facili-

ties, 11 San Diego L.R. 972, 992 (1974).

= =

federal facilities must comply with both water and air

pollution control permit requirements.

If federal facilities are exempted from state and local

permit requirements, local and state efforts to control

and abate air and water pollution will be set back.

Dated: May 8, 1975.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General,

ROBERT H. O'BRIEN,

CARL BORONKAY,

Assistant Attorneys General,

NICHOLAS C, Yost,

RODERICK WALSTON,

DANIEL TAAFFE,

C. FosTeR KNIGHT,

Deputy Attorneys General,

C. FosTER KNIGHT,

Deputy Attorney General,

Attorneys for Amicus Curiae

State of California.

ARTHUR K. BOLTON,

Attorney General of the

State of Georgia,

RoBERT E. HALL,

Assistant Attorney General,

Attorneys for Amicus Curiae

State of Georgia.