# Amicus Brief — Hancock v. Train > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0234%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1976 - **Citation:** 426 U.S. 167 ## Text 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”) ... 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0234%3A11. Public record. Not legal advice.