Amicus Brief — Hancock v. Train

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Sup’ Court. U. &

FitEpD

DEC 29 1975

In the Supreme Court of the Uinted States

OCTOBER TERM, 1975

No. 74-220

COMMONWEALTH OF KENTUCKY, EX REL. ED W.

HANCOCK, ATTORNEY GENERAL, PETITIONER

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE STATE OF ALABAMA

AS AMICUS CURIAE

WILLIAM J. BAXLEY

Attorney Genera] of the

State of Alabama

HENRY H. CADDELL

Assistant Attorney General

Chief, Environmental Protection

Division

FREDERICK S. MIDDLETON III

Assistant Attorney General

INDEX

Interest of Amicus Curiae

Summary of Argument

Introduction

Argument:

The plain language of the Act requires exist-

ing federal facilities to comply with state

r. ⸗⸗⸗

Section 118 requires federal facilities to

comply with all requirements respecting

control and abatement of air pollution,

including state permit requirements

Section 116 affirms that requirements

respecting control and abatement of air

pollution are not limited to emission

standards and compliance schedules ......... |

The Act distinguishes between state au-

thority over new and existing federal

e 8

Section 304 does not restrict state ac-

tions against federal facilities to actions

for violations of emission standards and

compliance schedules .......

II.

III.

IV.

The legislative history of the Act confirms

that existing federal facilities must comply

with state permit requirements 0.

Federal facilities must comply with state per-

mit requirements if the purposes of the Act

are to be accomplished | eee

The Environmental] Protection Agency’s in-

terpretation of Section 118 is not entitled

to special consideration

The Water Pollution Control Amendments of

1972 confirm that existing federal facilities

must comply with state permit requirements

RS ES cae ae

Conclusion

Page

— BT

iii

CITATIONS

CASES: Page

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

for a writ of certiorari pending, sub nom. Seeber

v. Alabama, No. 74-881 2, 14, 38

Alabama, State of v. Tennessee Valley Authority, Civil

Action No. 75-G2067 NE, U.S. District Court for

the Northern District of Alabama, filed Nwvem-

ieee. SR ak 1

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

1974) | — — 1

McLaren v. Fleisher, 256 U.S. 477, 65 L. Ed. 1052,

LI A ae ee 44

Natural Resources Defense Council v. Environmental

Protection Agency, 489 F. 2d 390 (5th Cir. 1974) 43

Train v. Natural Resources Defense Council, —U.S.—,

95 S.Ct. 1470, 43 L.Ed. 2d 731 (April 16,

1 9, 12, 14, 43, 44, 45

Udall v. Tallman, 380 U.S. 1, 13 L.Ed 2d 616, 85 S.Ct.

792 (1965) 1 3 8 ne 11

STATUTES AND REGULATIONS:

Clean Air Act, as amended in 1970, 84 Stat. 1676 et seg.

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

Section 107 (a), 42 U.S.C. 1857 ¢-2 (ay: 12

Section 109, 42 U.S.C. 1857 C94 seen italia 12

Section 110, 42 U.S.C. 1887 e- 4, 12, 21

Section 110 (a) (1), 42 U.S.C. 1857 c-5 (a) (1) ......... 13, 26

Section 110 (a) (2) 42 U.S.C. 1857 c-5 (a) (a) 13

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

FD cc —— 13

Section 110 (a) (2) (B). 42 U.S.C. 1887 c-5 (a) (2) (B) 13

Section 110 (a) (2) (F), 42 U.S.C. 1857 c-5 (a) (2)

— a ee. . — n 22, 26

Section 110 (a) (2) (F) (i), 42 U.S.C. 1857 c-5

r è —— 13

Section 110 (a) (2) (F) (ii) and (ii), 42 U.S.C.

1857 c-5, (a) (2) (F) (ii) and (ii) ............. nnn 13

Section 110 (a) (2) (F) (o), 42 U.S.C. 1857 c-5

(a) (2 (F) (vy) .......... n nn 13

Section 110 (a) (3), 42 U.S.C. 1857 c-5 (a) (3) 20

Section 110 (e), 42 U.S.C. 1857 - 5 (Ce) 18

Section 110 (e) (2), 42 U.S.C. 1857 c-5 00) (2: 20

Section 110 (e) (3), 42 U.S.C. 1857 c-5 (e) (33 20

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

eee 8 —— 20

Section 111, 42 U.S.C. 1857 c- 4, 16, 21

Section 111 (c)(1), 42 U.S.C. 1857 c-6 64 () 22, 23

Section 111 (d), 42 U.S.C. 1857 e- d)) 7 22, 26

Section 111 (e), 42 U.S.C. 1857 -x — 28

Section 112, 48 U.S.C. 1987 8ͤĩðĩ !L'2?'•2ʃÄÜ̃ 16

Section 112 (d) (1), 42 U.S.C. 1857 c-7(d) (i) 23

Section 113, 42 U.S.C. 1857 ¢-8 . —

Section 113 (a) (3), 42 U.S.C. 1857 c- (a) (3) 20

Section 114, 42 U.S.C. 1857 e- HH köö„ 4, 16, 18, 21

Section 114 (b) (1), 42 U.S.C. 1857

-b) (i) 5. 7, 21, 22, 26, 34

x .

Section 116, 42 U.S.C. 1857 d-1 3. 7, 18, 19, 34, 47

Section 118, 42 U.S.C. 1857 f 3, 4, 5, 6, 7, 11, 17

Section 302 (e), 42 U.S.C. 1857 h (e) 16

Section 303, 42 U.S.C. 1857 hi1 16, 18

Section 304, 42 U.S.C. 1857 h-2 2, 5, 6, 15, 25, 30

Section 304 (a) (1), 42 U.S.C. 1857 h-2 (a) (1) 25, 34

Section 304 (a) (2), 42 U.S.C. 1857 h-2 (a) (a) 30

Section 304 (b), 42 U.S.C. 1857 h-2(b) |. 29

Section 304 (d), 42 U.S.C. 1857 h-2 (dd) 29

Section 304 (e), 42 U.S.C. 1857 h-2(e) 29

Section 304 (f), 42 U.S.C. 1857 h-2 (f) 35

Clean Air Act, as amended in 1959, 73 Stat. 64e 40

Clean Air Act, as amended in 1963, 77 Stat. 392 40

Air Quality Act of 1967, 81 Stat. 488 B86, 40

Federal Water Pollution Control Act Amendments of

1972, 86 Stat. 816, et seg., 33 U.S.C. (Supp. III) 1251,

et. seq.:

Section 313, 33 U.S.C. (Supp. III) 132232 11, 47

Section 505 (f), 33 U.S.C. (Supp. III) 1365 (f) 48

Section 510, 33 U.S.C. (Supp. III) 1370 47

Kentucky Administrative Regulation AP-1 000... 37, 38

MISCELLANEOUS:

H.R. 17255, 91st Cong., 2d Sess. (1970) 17

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

H.R. Conf. Rep. No. 91-1783, 91st Cong., 2d Sess.

— * 19, 33, 35

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

„4 nne 33, 34, 36, 40

Inthe Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-220

COMMONWEALTH OF KENTUCKY, EX REL. ED W.

HANCOCK, ATTORNEY GENERAL, PETITIONER

RUSSELL E. TRAIN, ADMINISTRATOR.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE STATE OF ALABAMA

AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

As required by Section 110 of the Clean Air Act, as

amended in 1970, 42 U.S.C. 1857 et seq., the State of Ala-

bama submitted to the Environmental Protection Agency a

plan for the implementation, maintenance, and enforcement

of national air quality standards within its geographic boun-

daries. This plan was approved by the Administrator of

EPA on May 31, 1972.

37 Fed. Reg. 10847-8.

Like the plan submitted by the Commonwealth of Ken-

tucky and many other states, the Alabama plan incorporates

an extensive permit system as its central operational mecha-

nism. Consequently, the State of Alabama and the Common-

wealth of Kentucky share the common interest of insuring

that all pollution sources operating within their respective

boundaries, including federal facilities, are required to com-

ply with such EPA-approved state permit systems.

The State of Alabama also has an additional and unique

interest in the outcome of this case in that it has been litigat-

ing for over three years a separate action involving the same

issues and the same primary defendant, the Tennessee Val-

ley Authority.2 A petition for a writ of certiorari in this

case filed on behalf of TVA and other federal defendants is

presently pending before this Court, and the Court’s ruling

in the present case will for all practical purposes be dis-

positive of the Alabama case.’

Finally, the State of Alabama has an interest in the

Court’s interpretation of the citizen suits provision of the

Act, Section 304, 42 U.S.C. 1857 h-2, which will necessarily

be involved in the Court’s resolution of the issues presented

in the present case. This interpretation will strongly in-

fluence whether Alabama will seek to enforce its air pollu-

* This litigation was commenced on October 20, 1972, almost one

month before the State of Kentucky filed the original action in the

present lawsuit; State of Alabama, et al., v. Lynn Seeber, General

Manager of Tennessee Valley Authority, et al., United States District

Court for the Northern District of Alabama, Civil Action No. 72-939.

*Seeber v. Alabama, No. 74-851; petition for writ of certiorari

filed January 6, 1975.

On September 11, 1975, the State of Kentucky moved the Court

to consolidate the Alabama case with the Kentucky case. This motion

was denied on October 14, 1975.

tion laws against non-federal facilities in federal or state

court.*

SUMMARY OF ARGUMENT

The sole question for resolution in this case is whether

or not Section 118 of the federal Clean Air Act, as amended

in 1970, 42 U.S.C. 1857 f, requires federal facilities to com-

ply with state permit requirements. Respondents argue that

Section 118 requires federal facilities to comply only with

applicable emission standards and compliance schedules, and

not state permit requirements. The State of Alabama sub-

mits, however, that federal facilities must comply with all

requirements respecting the control and abatement of air

pollution, especially state permit requirements.

Alabama’s interpretation first finds support in the plain

language of the Act itself. Section 118 simply states that

federal facilities shall comply with “Federal, State, inter-

state, and local requirements respecting control and abate-

ment of air pollution to the same extent that any person is

subject to such requirements.” No distinction is made be-

tween emission standards and compliance schedules on the

one hand, and all ether requirements of federal, state, inter-

state, and local law on the other, as respondents suggest.

In addition, the fact that federal facilities must comply with

Section 118 requirements “to the same extent that any person

is subject to such requirements” strongly indicates that Con-

gress contemplated that federal facilities must comply with

state permit requirements since it is not disputed that non-

federal facilities must do so.

The express language of Section 116, 42 U.S.C. 1857 d-1,

»See page 28, below.

directly contradicts respondents’ argument that the phrase

“requirements respecting contro] and abatement of air pol-

lution” is synonymous with “emission standards and com-

pliance schedules.” That section specifically refers to the

same “requirements respecting control or abatement of air

pollution” as Section 118, and distinquishes that compre-

hensive catagory of requirements from the sub-catagory of

emission standards and limitations.

Alabama’s interpretation gains further support in that

Section 118 requires federal facilities to comply with federal,

as well as state, interstate, and local requirements respecting

the control and abatement of air pollution. If these require-

ments were restricted to emission standards and compliance

schedules only, federal facilities would be exempt from the

many important federal requirements of the Act as well as

most requirements of state implementation plans. Respon-

dents have failed to even suggest an explanation as to why

Congress would have intended such a broad exemption for

federal facilities.

A careful examination of Section 114, 111, and 110,

42 U.S.C. 1857 c-9, c-6, c-5, further reveals that Congress

consistently provided that federal facilities are subject to

all state requirements respecting the control and abatement

of air pollution from existing sources, but are subject to

no such state requirements with regard to new sources.

Congress thus expressly recognized the absolute necessity

of granting a state complete regulatory authority over exist-

ing sources, including federal facilities, as an integral part

of its efforts to fulfill the requirements of its implementa-

tion plan and effectively achieve and maintain national air

quality standards in the most efficient and equitable man-

ner. Such regulatory authority is not necessary with re-

gard to new sources, since there is no real regulatory task

for a state to accomplish. Emission standards for new

sources are promulgated by the Administrator and are uni-

form throughout the country for comparable facilities. Simi-

larly, all new sources are required to be in compliance before

operation actually begins.

Respondents rely heavily upon the notion that Section 304

of the Act, 42 U.S.C. 1857 h-2, is the “sole mechanism” avail-

able to the states to remedy non-compliance by federal

facilities with the requirements of Section 118, and that all

such actions are limited by the provisions of that section to

actions for violations of emission standards and compliance

schedules only. But this argument directly contradicts Sec-

tion 114 (b) (I), 42 U.S.C. 1857 c-9 (b)(1), which grants a

state the authority to enforce information gathering proced-

ures against federal sources, since such procedures are cer-

tainly not “emission standards and compliance schedules.”

More importantly, the primary mechanism available for

state enforcement of Section 118 requirements is the en-

forcement authority established pursuant to state implemen-

tation plans, not Section 304 as respondents contend. In

fact, Alabama submits that a state pollution control agency

could not bring suit against a viviator pursuant to Section

304 even if it wanted to, since access to that section is limited

exclusively to individual citizens.

Respondents’ argument that a state is a person for the

purposes of suing a violator pursuant to Section 304 is non-

sensical in view of the fa that that section provides that

an action may not be commenced against an alleged violator

unless the plaintiff has first given 60 days notice of the vio-

lation, both to the state in which the violation occurs and

to the alleged violator. These notice requirements, together

with the restriction of actions to violations of emission

standards and compliance schedules, strongly suggests that

Section 204 was exclusively designed to provide a means

whereby an individual citizen can trigger state enforcement

action against a violator, and then assume the enforcement

role if no such action is initiated.

II.

The legislative history of the Act confirms that existing

federal facilities must comply with state permit requirements.

In fact, a thorough reading of the history indicates that the

Conference Committee, which drafted the final version of the

Act which became law, specifically redrafted Section 118 to

clarify that existing federal facilities must comply with all

state pollution control requirements, and carefully integrated

this change into other sections of the Act, the exact same

sections discussed above which so clearly support a broad

interpretation of the final version of Section 118.

The original House version of Section 118 simply re-

quired federal facilities to comply with “emission standards”

where as the original Senate version required federal facili-

ties to comply with the “requirements of this Act”. The

Senate provision went on to add that a governor, attorney

general, or citizen could seek to enforce the provisions of

Section 118 pursuant to Section 304. The State of Alabama

tends to agree with respondents that both the original House

and Senate versions of Section 118 would have subjected fed-

eral facilities to state requirements concerning emission

standards and compliance schedules only. But contrary to

respondents’ suggestion, neither version actually became law.

The Conference Committee instead redrafted Section 118

to state that federal facilities shall comply with “require-

ments respecting control and abatement of air pollution to

the same extent that any person is subject to such require-

ments,” a more comprehensive phrase, and then redrafted

Section 116 of the Act, 42 U.S.C. 1857 d-1, as well, incor-

porating this same phrase and expressly indicating that it

was not synonymous with “emission standards or limitations.”

The Conference Committee also omitted the Senate ref-

erence in Section 118 to the enforcement of that section by

a governor or attorney general through Section 304, making

corresponding adjustments to the language of Section 304 to

clarify that an individual citizen could still sue a federal fa-

cility pursuant to that section, but only for a violation of an

emission standard or compliance schedule as discussed above.

Similarly, the Conference Committee added Section 114

(b) (J), 42 U.S.C. 1857 c-9 (b) (I), relating to state pro-

cedures for implementing and enforcing informational re-

quirements, expressly distinguishing that new federal pollu-

tion sources would be exempt from state procedures, but that

existing federal pollution sources would not.

Respondents’ heavy reliance upon the brief Conference

Committee comment on Section 118 is totally unfounded. It

is obvious from its face that this simple comment is neither

a comprehensive nor accurate analysis of the changes made in

that section. The first paragraph merely summarizes the

original House and Senate proposals without addressing the

Conference Committee changes which were made, and the

second paragraph, which does attempt to address these

changes, is completely erroneous. The actual changes made

by the Conference Committee in redrafting the Act, speak far

stronger and more clearly than this comment in expressing

the congressional intent in passing the Conference Commit-

tee’s redrafted version of the Act..

III.

The State of Alabama submits that it is solely through

the use of conditional permits that Kentucky, Alabama, and

many other states are able to fulfill the requirements of their

respective implementation plans and accomplish the funda-

mental purposes of the Act. If deprived of the use of these

conditional permits, the success of a state's pollution control

program depends exclusively upon the willingness of the

polluter to voluntarily cooperate with the state pollution con-

trol agency during the three year pre-attainment period.

But voluntary cooperation is not what Congress had in

mind when enacting the 1970 Amendments, nor has it proven

to be a workable means of ensuring that federal facilities

comply with emission and air quality standards on schedule.

As one would have expected, “willingness” to cooperate has

proven to be a poor substitute for mandatory requirements

to do so. On May 31, 1975, only a few weeks before the

mandatory attainment deadline in most states, the Environ-

mental Protection Agency recognized that numerous federal

facilities would not be in compliance by the deadline, and

issued guidelines to determine the status of these facilities,

and to establish “public commitments” to abate emissions

“as expeditiously as practical.” Alabama submits that EPA’s

efforts in this regard were simply too little too late, and

that if the states had been allowed to subject these same

federal facilities to the requirements of their respective per-

mit systems three years ago, we would not have this problem

before us today.

Alabama believes that regulating pollution sources

through the use of conditional operating permits constitutes

a fair and logical approach for expeditiously solving the many

complex problems involved with retrofitting existing pollu-

tion sources. This mechanism allows for a rational exchange

of ideas and trustworthy information between the polluting

facility and the regulating agency, and also provides for ex-

tensive public participation through public hearings, all as

an alternative to “voluntary cooperation” and its concomitant

litigation.

IV.

Respondents contend that simply because the Environ-

mental Protection Agency has stated its view that Section 118

does not require federal facilities to comply with state per-

mit requirements, this view is entitled to special considera-

tion by this Court. The State of Alabama does not agree.

The recent case of Train v. Natural Resources Defense

Council, —U.S.—, 95 S.Ct. 1470, 43 L.Ed. 2d 731 (April 16,

1975) and the cases cited therein indicate that courts will

defer to an administrative agency only where there has been

a significant degree of detrimental reliance upon the agency’s

interpretation of the statute in question, and when the agen-

cy’s interpretation is a “sufficiently reasonable” one. The

State of Alabama contends that EPA’s view of Section 118

cannot be considered reasonable in view of the plain lan-

guage and legislative history of the Act to the contrary, and

the total failure of voluntary cooperation as an alternative

means of accomplishing the general goals and objectives of

the Act.

More importantly, however, the federal facility respon-

dents cannot be heard to argue that they have detrimentally

relied upon EPA’s “interpretation” of Section 118. Here,

EPA did not promulgate any regulations concerning the

interpretation of Section 118, much less as a part of their

original implementation plan guidelines as was the case in

Train v. N. R. D. C. To the contrary, EPA expressly approved

the implementation plan submitted by the Commonwealth of

Kentucky which provided for an extensive permit system

as the principal mechanism for achieving air quality stand-

ards in that state. In fact, Kentucky’s permit system was

apparently the type procedure “encouraged” by EPA, whereas

state plans providing for attainment of national standards in

three years without enforceable pre-attainment procedures to

ensure compliance were looked upon with disfavor.

In addition, the only three examples in the record of an

EPA interpretation of Section 118 occurred substantially af-

ter the dispute between Kentucky and the federal facility

respondents had already ensued. Only later did EPA come

to the rescue of these other federal] agencies.

Nor can the federal facility respondents claim to be

injured in any respect if they are now required by this Court

to obtain a permit. To the contrary, it is the states and

their respective citizens who are presently suffering the con-

sequences of respondents’ decision to contest Kentucky’s ef-

forts to properly regulate them.

Finally, the State of Alabama submits that its inter-

pretation of Section 118 gains additional support from the

plain language of the Federal Water Pollution Control Amend-

ments of 1972, 33 U.S.C. (Supp. III), 1251, et seq. The

FWPCA Amendments established a nationwide scheme to

control water pollution analagous to the scheme previously

established by the Clean Air Amendments of 1970. Both

Acts placed the primary responsibility for pollution control

in the states and provided for state plans, promulgated pur-

suant to specific guidelines and subject to EPA approval, as

the primary mechanism for fulfilling this responsibility.

Section 313 of the FWPCA Amendments, 33 U.S.C.

(Supp. III) 1323, is derived from, and is virtually identical to,

Section 118 of the Clean Air Act, and there is no reason to

believe that Congress intended the phrase “requirements re-

specting control and abatement of [air] pollution” to have

significantly different meanings in context of these closely

related Acts. The FWPCA Amendments share with the

Clean Air Act many of the provisions relied upon by the

State of Alabama in its argument, but more importantly,

each of the Acts have strong independent provisions which,

when read in conjunction with one another, provide support

for the proposition that federal facilities are subject to state

permit requirements under both Acts.

INTRODUCTION

This case presents a question of statutory construction

involving the first sentence of Section 118 of the Clean Air

Act, as amended in 1970, (the Act“), 42 U.S.C. 1857 f,

which provides that:

“Each department, agency, and instrumentality of the

executive, legislative, and judicial branches of the Fed-

era] Government (1) having jurisdiction over any prop-

erty or facility, or (2) engaged in any activity resulting,

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

shall comply with Federal, State, interstute, and local

requirements respecting control and abatement of air pol-

lution to the same extent that any person is subject to

such requirements.” (Emphasis added).

Section 118 is an essential part of the comprehensive

1970 Amendments to the Act which created a new Federal-

State scheme to achieve and maintain clean air throughout

the country. Pursuant to this scheme the Administrator of

the Environmental Protection Agency is required to promul-

gate, for certain known air pollutants, national air quality

standards deemed necessary to protect the public health and

welfare, Section 109, 42 U.S.C. 1857 c-4, and the respective

states are required to achieve and maintain these air quality

standards within their own boundaries. Section 107 (a),

42 U.S.C. 1857 c-2 (a).“ The enactment of Section 118 was

therefore necessary to insure that federal as well as non-

federal pollution sources would be subject to pollution control

requirements promulgated by the states to fulfill their re-

sponsibilities under the Act.

The principal mechanism through which each state is

to operate to achieve and maintain air quality standards,

and the heart of the scheme established by the 1970 Amend-

ments, is the implementation plan procedure of Section 110.

42 U.S.C. 1857 c-5.6 Pursuant to that section, each state is

required to submit to the Administrator for approval a plan

providing for the “implementation, maintenance, and en-

* Section 107 (a) states as follows:

“Each State shall have the primary responsibility for assuring

air quality within the entire geographic area comprising such

State by submitting an implementation plan for such State

which will specify the manner in which national primary and

secondary ambient air quality standards will be achieved and

maintained within each air quality control region in such

State.”

*For a discussion of the 1970 Amendments and the states’ res-

ponsibility with regerd to achieving and maintaining national air

quality standards, see Train v. Natural Resources Defense Council,

US. _, 95 S.Ct. 1470, 43 L.Ed. 2d 731, 737-739 (April 16,1975).

forcement” of air quality standards within such state.“ Ap-

proval of a plan is conditioned upon, among other things,

the following: reasonable notice and hearing must have been

provided with regard to the plan submitted; the plan must

provide for the attainment of primary ambient air quality

standards as expeditiously as practicable but no later than

three years from t’.c date of approval of the plan; the

plan must include emission limitations, schedules for com-

pliance with such limitations, and other measures neces-

sary to insure attainment and maintenance of the national

air quality standards; the plan must provide necessary as-

surances that the state will have adequate personnel, fund-

ing, and authority to carry out the plan; the plan must

contain requirements for the monitoring and reporting of

emissions by polluting facilities; '* and, the plan must provide

for state authority to act in cases of emergencies which pre-

sent an eminent and substantial danger to the public health.”

The Commonwealth of Kentucky, as required by Section

110, submitted an implementation plan which satisfied each

of the above conditiors, and the plan was subsequently ap-

proved by the Administrator!“ Like the plans of many

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

Section 110 (a) (2) 42 U.S.C. 1857 c-5 (a) (2).

*Section 110 (a) (2), (A)(i), 42 U.S.C. 1857 c-5 (4) (2) (A) (i).

Section 110 (a) (2), (B), 42 U.S.C. 1857 c-5 (a) (2) (B).

Section 110 (a) (2) F) d), 42 U.S.C. 1857 c-5 (2) (2) (F) (i).

Section 110 (a) (2) F) (ü) and (iii), 42 U.S.C. 1857 c-5 (a) (2) (F)

(ii) and (iii).

Section 110 (a)(2)(F)(v), 42 U.S.C. 1857 c-5 (a)(2)(F)(v).

“ Kentucky’s implementation plan was originally approved on

May 31, 1972. 37 Fed. Reg. 10842.

other states, Alabama included, the Kentucky plan opted

for a permit system as the central mechanism for fulfilling

the implementation plan conditions and insuring the attain-

ment and maintenance of national air quality standards.“

These states consequently share a strong interest in insuring

that all pollution sources, including federal facilities, be

subject to the requirements of their respective permit systems.

The sole question for resolution in this case is whether

or not Section 118 requires federal facilities to comply with

such state permit requirements. The State of Alabama sub-

mits that it must and does so require. Respondents argue,

however, that Section 118 contemplates a degree of voluntary

cooperation and requires federal facilities to comply only

with emission standards and compliance schedules, and not

state permit requirements. (Resp. Brief, pp. 18-19)*°

*Such a permit system was apparently one of two approaches

encouraged by EPA. See page 45, below, and Train v. N. R. D. C.,

above, 43 L.Ed. 2d, at 739-740.

A description of the Kentucky permit system, and the manner in

which it operates to achieve national air quality standards, is dis-

cussed below, pp. 37-39.

“Interestingly, respondents strongly emphasized in the court be-

low a distinction between “substantive” and “procedural” require-

ments of the Act. Requirements in the Kentucky implementation

plan relating to permits, it was argued, were procedural in nature,

and could not be enforced against federal facilities. (See Kentucky

v. Ruckelshaus, 497 F.2d 1172, 1175 (6th Cir. 1974); (App. 162)]

The 6th Circuit adopted the distinction urged by respondents.

However, in the subsequent 5th Circuit case of Alabama v. Seeber,

502 F.2d 1238, 1245 (1974), the Court rejected this substantive-

procedure recharacterization of the statutory scheme as “a semanti-

cal red herring” drawing “no sustenance from the Act itself’ Ap-

parently recognizing the weakness of the substance-procedure dis-

tinction, the Solicitor General has subtly but most notably, aban-

doned reference to these terms in the brief filed on behalf of respon-

dents with this Court.

Respondents’ efforts to limit the scope of Section 118

depend primarily upon their reading of the legislative history

of that section, and their interpretation of Section 304 of

the Act, 42 U.S.C. 1857 h-2.“ Respondents also contend

that the EPA interpretation of Section 118 is entitled to

special consideration.“

The State of Alabama submits, however, that the plain

language of Sections 118, 304, and other provisions of the

Act clearly indicates that federal facilities must comply with

state requirements other than simply emission standards

and compliance schedules — especially state permit require-

ments — and that a thorough reading of the legislative his-

tory of these provisions demonstrates that the language used

therein was specifically redrafted by the Conference Com-

mittee to clarify this point. The same conclusion is reached

when the Clean Air Act is compared with the 1972 Water

Pollution Control Act Amendments which contain virtually

identical language relating to state control over federal fa-

cilities. Indeed, considering the essential nature of a state’s

permit system in its efforts to achieve air-quality standards,

and the inadequacy of the voluntary approach suggested by

respondents, it is apparent that Congress must have intended

that federal facilities submit to state permits requirements.

Finally, Alabama submits that EPA's interpretation

"Resp. Brief, pp. 24-31.

“Resp. Brief, pp. 31-34.

Respondents have apparently abandoned, along with their sub-

stance-procedure distinction, their Sovereign Inmunity and Suprem-

acy Clause arguments put forward in the Fifth and Sixth Circuits

below.

of Section 118 is not entitled to special consideration, since

that agency did not express its view on this matter until well

after a dispute arose between the Kentucky Air Pollution

Control Commission and the various federal facilities located

in that state, and neither the various states nor the federal

facilities could possibly have relied to their detriment on the

EPA interpretation.

ARGUMENT

I. THE PLAIN LANGUAGE OF THE ACT REQUIRES

EXISTING FEDERAL FACILITIES TO COMPLY

WITH STATE PERMIT REQUIREMENTS.

A. Section 118 requires federal facilities to comply

with all requirements respecting control and abate-

ment of air pollution, including state permit re-

quirements.

The State of Alabama submits that the clear and un-

ambiguous first sentence of Section 118 means exactly what

it says, federal facilities “shall comply with Federal, State,

interstate, and local requirements respecting control and

abatement of air pollution to the same extent that any per-

son is subject to such requirements.” This encompasses all

requirements of a state implementation plan approved by

EPA — including the permit requirements of a state plan —

as well as other requirements of state and local law not part

of a state plan, and those requirements set out in various

other sections of the Act.“

See, for example, Section 111, 42 U.S.C. 1857 c-6; Section 112,

42 U.S.C. 1857 c-7; Section 114, 42 U.S.C. 1857 c-9; Section 115, 42

U.S.C. 1857 d; and Section 303, 42 U.S.C. 1857 h-1.

The broad and comprehensive language of Section 118

provides no support whatever for respondents’ distinction

between emission standards and compliance schedules, and

all other requirements of federal, state, interstate, and local

law. In fact, the original bill which passed the House of

Representatives required federal facilities to “comply with

Federal, State, interstate, and local emission standards.

but this language was expressly changed in the final version

which became law.“

A broad interpretation of Section 118 is supported by

the fact that federal facilities must comply with these re-

quirements “to the same extent that any person is subject

to such requirements.” Since it is not disputed that non-

federal facilities must comply with all requirements respect-

ing control and abatement of air pollution, including state

permit requirements, it therefore follows that a federal fa-

cility, which must comply with these requirements to the

same extent as non-federal facilities, must comply with state

permit requirements as well.?“

H.R. 17255, 91st Cong. 2d Sess. (1970); Section 110 amending

Section 111 of the, Clean Air Act of 1963.

For a complete discussion of the legislative history of Section 118,

see pages 30-36, below.

“It should also be noted that Section 118 applies to federal facili-

ties or activities “resulting, or which may result, in the discharge of

air pollutants”. (Emphasis added).

This language is inconsistent with respondents’ interpretation of

Section 118. The “requirements” with which federal facilities must

comply cannot be limited strictly to emission standards and compliance

schedules since those requirements are meaningless witn respect to

@ facility which is not in fact polluting. It must be concluded, there-

fore, that potential federal pollution sources are to be regulated

before the fact, by the use of a mechanism such as a permit system,

in order to prevent future violations.

Such an interpretation gains further support from the

fact that Section 118 specifically requires federal facilities

to comply with federal, as well as state, interstate, and local,

requirements respecting control and abatement of air pollu-

tion. If these requirements are restricted to emission stand-

ards and compliance schedules only, federal facilities would

not only be exempt from most requirements of state imple-

mentation plans, but in addition would be exempt from the

requirements of Section 114, 42 U.S.C. 1857 c-9, regarding

right of entry and inspection, monitoring, sampling, report-

ing, and record keeping; the federal emergency powers re-

quirements of Section 303, 42 U.S.C. 1857 h-1; the require-

ments of implementation plans promulgated by EPA pur-

suant to Section 110 (e), 42 U.S.C. 1857 c-5 (e), and any

other federal requirements set out in the Act. Respondents

have failed to even suggest an explanation as to why Con-

gress would have intended to exempt federal facilities from

supervision by another federal agency. Indeed, as discussed

below, such an interpretation would be contrary to the ex-

press congressional purpose in providing for stricter control

of federal facilities through the 1970 Amendments.”*

B. Section 116 affirms that requirements respecting

control and abatement of air pollution are not limited

to emission standards and compliance schedules.

The express language of Section 116, 42 U.S.C. 1857 d-1,

directly contradicts respondents’ contention that the phrase

“requirements respecting control and abatement of air pol-

See page 39, below.

lution” as used in Section 118 should be interpreted to mean

only emission standards and compliance schedules. That

section states in relevant part as follows:

“. . . [Njothing in this Act shall preclude or deny the

right of any state or political subdivision thereof to

adopt or enforce (1) any standard or limitation respect-

ing emissions of air pollutants or (2) ony requirement

respecting control or abatement of air pollution; except

that if an emission standard or limitation is in effect un-

der an applicable implementation plan or under Sec-

tion 111 or 112, such State or political subdivision may

not adopt or enforce any emission standard or limitation

which is less stringent than the standard or limitation

under such plan or section.” (Emphasis added).

It is obvious from the language of Section 116 that Con-

gress did not equate “requirements respecting control or

abatement of air pollution” with “emission standards or

limitations” as respondents would have us believe, especi-

ally in view of the fact that Section 116 was drafted by

the Conference Committee — the same committee which ex-

pressly rejected the House language restricting federal com-

pliance to emission standards and substituted in lieu thereof

the broader duty of complying with all state requirements

respecting control and abatement of air pollution. It is most

unlikely that the Conference Committee, after specifically

dealing with these two phrases, would have used them in-

consistently in these closely related sections of the Act.”

See H. R. Rep. No. 91-1783, 9lst Cong. 2d Sess. 48 (1970).

For a complete discussion of the legislative history of the Act as

it specifically relates to the changes which the Conference Committee

made in Sections 118, 116, and other sections of the Act, see pages

33-35, below.

Respondents’ attempt to avoid the impact of Section 116

by arguing that the phrase “any standard or limitation re-

specting emissions of air pollutants” and the phrase “any

requirement respecting control or abatement of air pollu-

tion” are mutually exclusive fails rather badly. (Resp.

Brief, 20-21). The logical reading of Section 116 is that

a “standard or limitation respecting emissions of air pollu-

tants” is a subcategory of the broader class of “require-

ment [s] respecting control or abatement of air pollution”,

not an entirely separate class in itself.“

Respondents’ efforts to gain support for their inter-

pretation of Section 118 through other portions of the Act

are equally without merit. (Resp. Brief, p. 21). Although

it is possible that Section 110 (e)(1)(A), 42 U.S.C. 1857

c- (e)(1)(A), refers primarily to only those requirements

regarding emission standards as respondents suggest, the

word “requirements” as used in other portions of Section 110

fe.g., Section 110 (a) (3), 42 U.S.C. 1857 c-5 (a) (3); Sec-

tion 110 (e) (2), 42 U.S.C. 1857 e-5 (e) (2); and Section 110

(e) (3), 42 U.S.C. 1857 e-5 (e) (3) J,. obviously refers to the

entire range of implementation plan requirements incorpor-

ated in the Kentucky permit system, including monitoring,

reporting and record keeping, emergency episode plans, in-

spections, and other measures necessary to insure attainment

and maintenance of air quality standards.

Even if Section 116 is interpreted as respondents suggest, such

an interpretation directly contradicts their principal argument that

“requirement respecting control or abatement of a pollution” is

synonymous with “emission stancards and compliance schedules.”

Note also the reference in Section 113 (a)(3), 42 U.S.C. 1857 c-8

(a)(3), to the “requirements” of Section 114.

C. The Act distinguishes between state authority over

new and existing federal pollution sources.

A careful examination of Sections 114, 111, and 110 of

the Act“ reveals that Congress carefully and consistently

distinquished between state authority over tiew federal pol-

lution sources, and state authority over existing federal pollu-

tion sources. Federal facilities are subject to all state re-

quirements respecting the control and abatement of air pollu-

tion from existing sources, but are subject to no such state

requirements with regard to new sources.

Section 114 (b)(1), 42 U.S.C. 1857 c-9 (b)(1), for ex-

ample, which deals with record keeping, reporting, monitor—

ing, sampling, and the right of entry and inspection, provides

as follows:

“Each State may develop and submit to the Administra-

tor a procedure for carrying out this section in such

State. If the Administrator finds the State procedure

is adequate, he may delegate to such State any authority

he has to carry out this section (except with respect

to new sources owned or operated by the United States).“

(Emphasis added).

By specifically authorizing a state to develop a procedure for

carrying out this section with respect to all sources except

mew sources owned or operated by the United States, it is

apparent that a state does have such authority with respect

to existing federal sources.

42 U.S.C. 1857 c-9, c-6, and c-5.

The State of Alabama submits that the “procedure for

carrying out” section 114 which has been developed and sub-

mitted by the State of Kentucky is, in fact, the permit pro-

cedure which is the subject matter of the present lawsuit.**

But whether or not the Administrator has technically “dele-

gated” his authority to the State of Kentucky pursuant to

Section 114 (b)(1) by approving the Kentucky implementa-

tion plan, it is apparent that the Kentucky permit system

satisfies the conditions of Section 114 (b) (I), and it is

equally apparent that Section 114 (b)(1) subjects existing

federal pollution sources to “requirements” other than emis-

sion standards and compliance schedules.

The disparate treatment accorded new and existing fed-

eral sources is also exhibited in Sections 111 and 110 of the

Act. 42 U.S.C. 1857 c-6 and c-5. Section 111 (e) (I) ex-

pressly exempts new sources owned or operated by the

United States from state procedures fur implementing and

enforcing standards of performance for new sources promul-

gated by the Administrator. However, Section 111 (d),

which provides for state “implementation plans” to estab-

lish, implement, and enforce standards for existing sources

for which air quality criteria have not been issued, does not

exempt federal facilities from the requirements of such plans.

This is, of course, consistent with the fact that Sectioa 110,

which concerns implementation plans for the control of ex-

isting pollution sources for which air quality criteria have

been issued, and upon which Section 111 (d) is modeled, simi-

Note that the informational requirements of Section 174 are

virtually identical to the implementation plan requirements of Section

110 (a)(2)(F), 42 U.S.C. 1857 c-5(a)(2)(F), which are carried out via

the Kentucky permit system submitted to and approved by EPA. Sce

page 38, below.

larly does not exempt federal facilities from its requirements.

Obviously, when Congress intended to exempt a federal facil-

ity from a particular requirement in the Act, it clearly and

expressly set out the exemption.“ In the absence of any such

exemption, federal facilities are subject to all the require-

ments of the Act to the same extent as any other person.

Respondents argue that the express exemptions of Sec-

tion 111 (c)(1) and Section 112 (d)(1) are consistent with

their interpretation of Section 118 that federal facilities are

required to comply with state emission standards and com-

pliance schedules only, and that these express exemptions for

new federal sources should be carried over and applied sub

silentio to existing federal sources. (Resp. Brief, 23-24)

But this contention is patently incorrect since Sections 111

and 112 both specifically prohibit a state from enforcing

emission standards against new federal sources as well as

developing procedures to implement these standards. If ex-

isting federal sources were exempted in the same manner

as new federal sources, Section 118 would be rendered mean-

ingless since there would be no state requirements with

which federal facilities would be required to comply.

By granting the states more authority over existing

federal pollution sources than new federal sources, Congress

recognized the different nature of control required for each

class of facility. In dealing with existing sources, of course,

the first task is to determine the general quality of the air

in the relevant geographic region and then compute the re-

spective amounts of pollution attributable to the emissions

See also Section 112 (d) (I), 42 U.S.C. 1857 c-7 (d)(1), regarding

hazardous air pollutants.

of each individual facility therein. Next, appropriate emis-

sion standards necessary to clean the air must be assigned

to the various polluting facilities, and compliance schedules,

emergency procedures, and operating time requirements must

be established for each individual facility to insure that

the public health and welfare is not endangered during the

period preceding final attainment of the relevant emission

and air quality standards. In conjunction with these efforts

data must be generated with regard to the nature of each

individual facility’s operation, the type and amount of its

emissions, and the actions which it has taken towards achiev-

ing final compliance.

For this formidable task to be conducted properly each

existing pollution source must necessarily be regulated as

an integral part of the control effort throughout the entire

geographic region, and it is therefore imperative that the

states, who have the responsibility under the Act for this

control effort, be granted complete authority over all existing

sources, including federal facilities, to insure that the public

health and welfare is protected in the most efficient and

equitable manner.“

Controlling new sources is not so complex. Emission

standards are promulgated by the Administrator and are uni-

form throughout the country for comparable facilities. Con-

sequently, there is no real need for a comprehensive and flexi-

ble regulatory mechanism to evaluate and contro! each in-

dividual facility as part of a coordinated clean-up effort, nor

This is especially true considering the fact that federal facilities,

such as respondent TVA, are often the largest polluters in a given

air quality control region.

is there any compelling need for access to information con-

cerning a particular facility’s emissions or mode of operation.

Similarly, since all new sources are required to be in com-

pliance before operation begins,“ there is no need for com-

pliance schedules to be developed or for preattainment oper-

ating time or emergency procedures to be established.

D. Section 304 does not restrict state actions against

federal facilities to actions for violations of emission

standards and compliance schedules.

Crucial to respondents’ attempt to limit the coverage of

Section 118 to emission standards and compliance schedules

is their interpretation of Section 304 of the Act, 42 U.S.C.

1857 h-2. Respondents contend, as did the 6th Circuit before

them, that Section 304 is the “sole mechanism” available to

the States to remedy non-compliance by federal facilities

with the requirements of Section 118, and pursuant to Sec-

tion 304 (a)(1), 42 U.S.C. 1857 h-2 (a)(1), all such state

actions are limited to violations of emission standards and

compliance schedules."' Since Section 304 (a) (1) is the only

section in the entire Act which treats emission standards and

compliance schedules as a category separate and apart from

all other requirements respecting control and abatement of

air pollution, in the absence of this connecting link between

Section 118 and Section 304, respondents’ argument in this

case fails completely.

Respondents’ interpretation of Section 304 is manifestly

incorrect. In the first place, to argue that Section 304 limits

state actions against federal facilities to violations of emis-

"See Section 111 (e), 42 U.S.C. 1857 c-6 (e).

“See respondents’ brief, pages 25-27; and Kentucky v. Ruckels-

haus, 497 F.2d 1172, 1177 (6th Cir. 1974); (App. 168).

sion standards and compliance schedules directly contradicts

Section 114 (b)(1), 42 U.S.C. 1857 c-9 (b)(1), which grants

a state the authority to enforce information gathering pro-

cedures against existing federal sources, since record keep-

ing, reporting, monitoring, sampling, and the right of entry

and inspection are certainly not “emission standards or limi-

tations” as defined in Section 304 (f), 42 U.S.C. 1857 h-2 (f).

More importantly, Section 304 cannot be considered as

the sole mechanism” available for state enforcement of Sec-

tion 118 requirements since the primary means of state

enforcement against all facilities, federal as well as state,

is through the enforcement authority established pursuart

to the requirements of EPA approved state implementation

plans.** Contrary to respondents’ suggestion (Resp. Brief,

p. 25 fn. 30), this authority is not restricted in any manner

to actions in state court against non-federal facilities. A

state action for a pollution violation may be brought against

a federal defendant in any proper court, state or federal,

pursuant to a valid jurisdictional grant. Indeed, a case in

point is the Seeber case, above, in which the original com-

plaint filed in the U. S. District Court specifically alleged

federal question jurisdiction and was brought pursuant to

the enforcement provisions of the Alabama Air Pollution

Section 110 (a)(1) and (a)(2)(F), 42 U.S.C. 1857 c-5 (a)(1) and

(a)(2)(F); Section 111 (d)(1), 42 U.S.C. 1857 c-6 (d)(1).

The original House version of the Act, which expressly limited

state control of federal facilities to emission standards, did not even

have a citizen suits provision, and the Senate version, which provided

that a governor or attorney general may enforce Section 118 require-

ments pursuant to Section 304, was expressly omitted from the final

Act. A complete discussion of the legislative history of these sections

appears at pages 30-35, below.

Control Act as incorporated in Alabama’s implementation

plan and approved by EPA.

Moreover, it is the position of the State of Alabama that

a state pollution control agency could not bring suit pur-

suant to Section 304 even if it wanted to since access to that

section is limited exclusively to individual citizens. Al-

though it is true that the term “person” is defined in the

general definitional section of the Act, Section 302 (e), 42

U.S.C. 1857 h(e), to include a state, that general defini-

tion should logically be interpreted in context of Section 304

„State of Alabama, et al., v. Seeber, et al., United States District

Court for the Northern District of Alabama, Civil Action No. 72-939,

Paragraphs 1 and 2.

With ali due respect, the State of Alabama submits that the mis-

interpretation of Section 304 reflected in the opinion of the 6th Circuit

in Kentucky v. Ruckelshaus, and the consequent conflicting holding

with the 5th Circuit in Seeber, may well be attributable to confusion

on the part of the Kentucky Attorney General with regard to the

exact manner in which he was proceeding against the respondents.

For example, although Kentucky alleges federal question jurisdiction

with an amount in controversy exceeding $10,000 (App. 6) which

would be unnecessary in an action brought pursuant to Section 304

[See Section 304 (a)], the lower court opinions reflect that Kentucky

later took the position that their action was brought, at least in part,

pursuant to Section 304. (App. 148; 162-3). The State of Alabama

did not take such a position in its case.

Similarly, the Commonwealth of Kentucky sued the Administra-

tor, apparently pursuant to Section 304, for failure to commence

appropriate actions against the federal facilities with regard to the

Kentucky permit requirements. (App. 137, 167). The State of Ala-

bama, on the other hand, voluntarily dismissed its claim against the

Administrator making clear its position that its action was brought

pursuant to the enforcement provisions of its implementation plan

only.

By inadvertantly basing its suit on Section 304, Kentucky appar-

ently jeopardized its position on the merits by lending credence to

respondents’ erroneous argument that state actions against federal

facilities are limited by that section to violations of emission stand-

ards and compliance schedules.

to mean that state facilities, as well as private facilities, are

subject to being sued by a citizen, not that a state can sue

as a citizen. This is the manner in which this term is used

throughout the Act“ as well as in the predecessor Air

Quality Act of 1967, P.L. 90-148, frcm which the general

definitional section of the Act was taken intact, and which

did not even have a citizen suits’ provision. Such an inter-

pretation also explains the reference in Section 304(a) (1) (ii)

to the Eleventh Amendment which, of course, concerns suits

against a state filed by individual citizens of another state.“

To argue that a state is a person for purposes of suing

a violator pursuant to Section 304(a)(1) is non-sensical in

light of the express provisions of Section 304 and the Con-

gressional purpose in enacting that section. Not only is

Section 304 entitled “citizen suits,” it also provides for court

awarded attorneys’ fees, hardly a provision one would find

outside the realm of private litigation.“ More importantly,

Section 304 also provides that no action may be commenced

against an alleged violator pursuant to that section unless the

plaintiff has first given 60 days notice of the violation to

both the Administrator and the state in which the violation

occurs, and to the alleged violator. If either the state or

See especially the manner in which the word “person” is used in

Section 118, 42 U.S.C. 1857 f, and Section 113, 42 U.S.C. 1857 c-8.

“If a state is a “person” for purposes of bringing a Section 304

action, this would apparently apply equally to actions against non-

federal, as well as federal, facilities. The State of Alabama has never

brought an enforcement action against a non-federal facility, or a

federal facility, in federal court pursuant to Section 304 under the

assumption that it could not do so. Although Alabama believes that

it has been correct in this assumption, it is certainly interested in

this Court’s interpretation of this section since a holding consistent

with respondents’ position would greatly increase Alabama’s access

to the federal courts in air pollution cases generally.

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

the Administrator commences an action against the violator

within the 60 day period, or if the violator complies with the

law within that time, the citizen is barred from filing his

suit.“ Section 304 cannot possibly include suits by state

agencies as respondents suggest since there is no reason what-

soever for a state to be required to noti‘y itself and the vio-

lator, and then wait 60 days before commencing an enforce-

ment action.**

The Congressional purpose in adding Section 304 to the

Act is readily apparent from the plain language of that

section itself. The Act contemplates that the states, through

their implementation plans, will generate and evaluate air

quality and emissions data, develop emission standards and

compliance schedules for each pollution source, and enforce

violations or take whatever other action is necessary to in-

sure compliance with the various implementation plan re-

quirements. In the event that the responsible state or

federal agency does not fulfill its enforcement obligations

under the Act against a violator, Section 304 provides a means

whereby an individual citizen may assume the enforcement

role to insure that the provisions of the Act are expeditiously

carried out. The role of the individual citizen, however, is

primarily one of triggering the enforcement mechanism. It

is only when the mechanism does not respond that the citizen

is provided an opportunity to actually file suit, and then such

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

“To require a state to notify a violator and then wait 60 days

before commencing an enforcement action would be especially dis-

astrous with regard to air pollution emergencies when immediate

action is an absolute necessity.

Interestingly, even if a state is considered a person for purposes

of suing a violator, Section 304 (e), 42 U.S.C. 1857 h-2 (e), expressly

allows a suit to be brought by a state pursuant to state law to enforce

an “emmission standard or limitation or to seek any other relief.”

(Emphasis added).

suits are limited to violations of emission standards and com-

pliance schedules, violations which can typically be proven in

a direct fashion either through simple discovery or on the

basis of data already compiled and evaluated by the relevant

state agency. This restricted access to the courts logically

does not apply to state actions against a violator.““

II. THE LEGISLATIVE HISTORY OF THE ACT CON-

FIRMS THAT EXISTING FEDERAL FACILITIES

MUST COMPLY WITH STATE PERMIT REQUIRE-

MENTS.

Respondents’ efforts to limit the scope of Section 118

despite the plain language of the Act to the contrary realistic-

ally rests exclusively upon their reading of the legislative

history of Sections 118 and 304. The State of Alabama sub-

mits, however, that a thorough understanding of the legisla-

tive history of these and other sections of the Act shows that

the Act was purposely redrafted to clarify that existing

federal facilities must comply with all state pollution control

requirements, and not just emission standards and compliance

schedules as respondents suggest.

The original House version of Section 118 as reported out

of the House Committee on Interstate and Foreign Commerce

stated that all federal facilities

“ . „ shall comply with the applicable Federal, State,

It is possible that a state may bring an action against the Ad-

ministrator pursuant to Section 304 (a)(2), 42 U.S.C. 1857 h-2 (a)(2),

since most of the reasons for restricting Section 304 actions to indi-

vidual citizens apply only to suits against a violator. Although, as

explained <bove, the State of Alabama voluntarily dismissed its action

against the Administrator in the Seeber case, it does not take he

position that such an action would necessarily he prohibited.

interestate and local emission standards and with the

purposes of this Act... .” H.R. Rep. No. 91-1146 91st

Cong., 2d Sess. 34 (1970) (Emphasis added).

The Senate version as reported out of the Senate Committee

on Public Works, however, used different terminology, pro-

viding that federal facilities

„. . . Shall comply with the requirements of this Act in

the same manner as any person must so comply... .”

(Emphasis added).

The Senate provision went on to add in subsection (b) that

„. . . the Governor, the attorney general or any citizen

of any State in which any Federal property, facility, or

activity is located may seek to enforce the provision

[sic] of this section pursuant to section 304 of this Act.”

S. Rep. 91-1196, 91st Cong., 2d Sess. 100 (1970).

The final version of Section 118, as drafted by the Con-

ference Committee and enacted into law, uses terminology

which differs from both the House and Senate version, pro-

viding 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 sub-

ject to such requirements.” 42 U.S.C. 1857f (Emphasis

added).

In addition, the Conference Committee omitted all reference

to enforcing the provisions of Section 118 through Sec-

tion 304.

Respondents’ principal argument is that although the

House version of Section 118 refers to “emission standards,”

whereas the Senate version uses the term requirements“,

both the House and Senate committee reports state that

federal facilities are required to meet “emission standards“,

thereby allegedly equating the House and Senate terminology.

It is then argued that the Conference Committee “simply

combined” the House and Senate provisions without ex-

panding their limited scope.“ Respondents further contend

that the reference in the Senate version to actions by a

Governor or attorney general to enforce Section 118 pur-

suant to Section 304 further indicates congressional intent

to limit state actions against federal facilities, since Section

304 actions are so limited.“

It is certainly true, as respondents suggest, that the

original House version of Section 118 would have required

federal facilities to comply only with state emission stand-

ards, since this was the precise language used in that section.

However, it is equally apparent that the House bill contem-

plated that state actions would be brought in proper court

pursuant to state law and/or the enforcement provisions of

state implementation plans, since that bill did not even have

a citizen suit provision.“

The Senate version of Section 118 is more ambiguous,

but the State of Alabama also tends to agree with respon-

dents that in view of the Committee comment* and sub-

“Resp. Brief, pp. 27-30. Interestingly, neither the original

language of the House bill, nor any of the committee reports, men-

tions that federal facilities must comply with compliance schedules

as respondents admit they must.

“Resp. Brief, pp. 25-26.

H.R. Rep. No. 91-1146, 91st Cong., 2d Sess. (1970).

S. Rep. No. 91-1196, 91st Cong. 2d Sess. 23 (1970).

section (b) of the Senate version of Section 118, the “require-

ments of this Act” referred to are probably the requirements

listed in the Senate citizen suits provision, Section 304 (a) (1)

— namely, compliance schedules, emission requirements,

standards of performance, emission standards, and prohibi-

tions.“

But contrary to respondents' suggestion, the Senate ver-

sion of Section 118 did not become law, nor was it simply

combined“ with the House version of that section. Rather

the Conference Committee specifically redrafted Section 118

to clarify that existing federal facilities must comply with

all state pollution control requirements — not simply emis-

sion standards or requirements — and carefully integrated

this change into other sections of the Act, the exact same

sections which so clearly support the broad interpretation of

the final version of Section 118 as discussed in the first sec-

tion of this brief, above.“

The Conference Committee first redrafted Section 118

to require federal compliance with all requirements respect-

S. Rep. No. 91-1196, 91st Cong. 2d Sess. 122 (1970).

The State of Alabama does not agree, however, that subsection

(b) of the Senate version of Section 118 was intended to limit state

actions enforcing that section to actions pursuant to Section 304.

Subsection (b) of the Senate proposal states that the Governor or

attorney general may seek to enforce Section 118 pursuant to Section

304. Like the House, the Senate recognized that state actions could

be brought in proper court against federal faciiities pursuant to the

enforcement authority of a state implementation plan.

“The Conference Committee report was ordered to be printed on

December 17, 1970. [H.R. Rep. No. 91-1783, 9lst Cong. 2d Sess.

(1970)], exactly three months after the Senate Committee ordered its

report to be printed. S. Rep. No. 91-1196, 91st Cong. 2d Sess. (1970).

During this time the Conference Committee made several changes

and innovations throughout the bill which do not correspond with

the House and Senate proposals.

ing control and abatement of air pollution”, a more compre-

hensive phrase.“ The Committee then completely redrafted

Section 116 of the Act, incorporating for the first time the

phrase “requirement respecting control or abatement of air

pollution” and expressly providing, contrary tc respondents’

argument, that such a requirement is not synonymous with

an emission standard or limitation.“ Similarly, the Confer-

ence Committee added Section 114 (b)(1), 42 U.S.C. 1857

c-9 (b)(1), relating to state procedures for implementing

and enforcing informational requirements, and expressly

stated that new federal pollution sources would be exempt

from such state procedures, but that existing federal pollu-

tion sources would not.“

The Conference Committee also specifically omitted the

Senate reference in Section 118 to the enforcement of that

section through Section 304. Since the Conference Commit-

tee version of Section 304, like the earlier Senate version,

expressly limited citizen suits against a violator to actions

concerning emission standards and compliance schedules,

this was necessary to insure that state actions against federal

facilities would not be so limited. The phrase including

the United States” in Section 304 (a)(1), 42 U.S.C. 1857

The Conference Committee also required that federal facilities

comply with these requirements “to the same extent that any person

is subject to such requirements” changing the Senate language which

required compliance “in the same manner as any person.”

“See pages 18-20, above. Compare the language of Section 116,

42 U.S.C. 1857 d-1, to the House and Senate versions of this section.

H.R. Rep. No. 91-1146, 91st Cong., 2d Sess. 32, 33 (1970) and S. Rep.

91-1196, 91st Cong., 2d Sess. 90, 91 (1970).

Compare Section 114 (b)(1) to the Senate and House proposals

which did not provide for such state procedures. S. Rep. 91-1196,

91st Cong., 2d Sess. 97, 98 (1970) and H.R. Rep. No. 91-1146, 91st Cong.

2d Sess. 28 (1970).

h-2 (a) (1), and the phrase “including a requirement appli-

cable by reason of Section 118“, Section 304 (f), 42 U.S.C.

1857 h-2 (f), however, were then added to clarify that a

citizen could still sue a federal facility pursuant to Section

304, but only for violations of emission standards and com-

pliance schedules as discussed above.

Pursuant to the Conference Committee changes, a state

can, of course, continue to bring actions against federal

facilities pursuant to independent state authority, or the en-

forcement authority of its implementation plan, to enforce all

state requirements respecting control and abatement of air

pollution, not just emission standards and compliance sched-

ules. Contrary to respondents’ suggestion in their brief, the

parenthetical phrase in Section 304 (f) in no way suggests

that emission standards and compliance schedules are the only

requirements of Section 118.

The actual changes made by the Conference Committee

speak louder than the Committee comment on Section 118

so heavily relied upon by respondents. That comment, in

its entirety, is as follows:

“The House bill and the Senate amendment declared that

Federal departments and agencies should comply with

applicable standards of air quality and emissions.

“The conference substitute modifies the House provi-

sion to require that the President rather than the Ad-

ministrator be responsible for assuring compliance by

Federal agencies.” H.R. Rep. 91-1783, 9lst Cong. 2d

Sess. 48 (1970).

Respondents’ argument that this brief summary proves

that the Conference Committee did not expand the scope of

state control over federal facilities is completely without

merit. It is obvious from its face that this simple comment

does not purport to be a comprehensive analysis of the

changes made in that section, nor is it an accurate one. The

first paragraph simply summarizes the original House and

Senate proposals without addressing the Conference Com-

mittee changes. The second paragraph, which does attempt

to address these changes, is ridiculously in error. Nowhere

in the legislative history is there any indication whatever

that either the President or the Administrator is in any

sense “responsible for assuring compliance by federal agen-

cies.” To the contrary, the only reference to the President

or the Administrator in either bill was specifically directed

toward the power to exempt federal facilities from state con-

trol if in the paramount interest of the United States to

do 80.9%

The State of Alabama is quite simply amazed at re-

spondents’ attempt to use this obvious mistake of the Con-

ference Committee as a foundation for their newly-created

argument that the President, rather than the states, has the

primary duty to insure compliance with federal facilities

(Resp. Brief, pp. 30-31), and for their subsequent conten-

tion that the December 19, 1973 Executive Order of the Presi-

dent should be entitled to weight in determining the proper

interpretation to be given to Section 118 for purposes of this

case. (Resp. Brief, pp. 32-33).

See H.R. 91-1146, 91st Cong. 2d Sess. 34 (1970) and S. Rep.

91-1196, 91st Cong. 2d Sess. 100 (1970). The only law which provided

for any such responsibility was the Air Quality Act of 1967, P.L.

90-148, 81 Stat. 485, Section 111 (b) which delegated this power to the

Secretary of the Department of Health, Education, and Welfare.

"See pages 43-46, below.

— —

III. FEDERAL FACILITIES MUST COMPLY WITH

STATE PERMIT REQUIREMENTS IF THE PUR-

POSES OF THE ACT ARE TO BE ACCOMPLISHED.

In redrafting Section 118 and other provisions of the

Act to clarify that existing federal facilities are subject to

all state requirements respecting the control and abatement

of air pollution, the Conference Committee recognized the

necessity of pre-attainment regulation of all existing facilities

— federal, as well as non-federal — as an integral part of

a state’s efforts to fulfill the requirements of its implemen-

tation plan and achieve and maintain national air quality

standards. As stated above, in Kentucky and many other

states it is solely through the issuance of operating permits

that the State pollution control agency actually carries out

such regulation.

Pursuant to the EPA-approved Kentucky implemen-

tation plan, no person is allowed to construct or operate an

air pollution source unless a permit therefor has first been

obtained from the Kentucky Air Pollution Control Commis-

sion, “e which permit is subject to terms and conditions which

the Commission deems necessary to insure compliance with

“Kentucky Administrative Regulation AP-1, Section 5 (1). The

Kentucky administrative regulations relevant to this case are printed

in the appendix submitted to the Court of Appeals for the Sixth

Circuit, pages 99-227.

its emission standards.“ These conditional permits are then

used by the Commission to enforce the essential provisions

of the implementation plan relating to emission standards,

compliance schedules, monitoring, record keeping and re-

porting, and emergency episodes.“

Although the comprehensive nature of the Kentucky per-

mit system may not be as explicit as the permit systems of

various other state implementation plans,“ it is apparent from

a review of Kentucky Administrative Regulation AP-1 in its

“See Kentucky Administrative Regulation AP-1, Section 5 (4),

which states as follows:

“Permits issued hereunder shall be subject to such terms and

conditions set forth and embodied in the permit as the Commis-

sion shall deem necessary to insure compliance with its standards.

Such terms and conditions may include maintenance and availa-

bility of records relating to operations which may cause or con-

tribute to air pollution including periodic source of stack sam-

pling of the air contaminate sources.”

See also Kentucky Administrative Regulation AP-1, Section 5(2)(a)

and (c).

Kentucky Administrative Regulations, AP-1, Sections 7-9 and 11.

Cf., for example, the permit system set forth in the Alabama

implementation plan, State of Alabama v. Seeber, 502 F.2d 1236, 1240-

1242 (Sth Cir. 1974). Although identical in operation to the Kentucky

plan, the Alabama plan more explicitly sets out that air pollution

emergency plans, sampling and monitoring requirements, and prog-

ress reports are all an integral part of the permit system. [Alabama

Air Pollution Control Commission Rules and Regulations, 1.12.8 (b)-

(d); 1.12.9 (b)]

It was for this reason that the State of Alabama desired to con-

solidate its case with the present cese. Since there was apparently

some confusion in the 6th Circuit with regard to the operational ef-

fect of the Kentucky permit system, Alabama wanted to insure that

this Court had before it on direct review a record which presented,

as explicitly as possible, the true nature of the permit mechanism.

See Seeber v. Alabama, No. 74-851, “Respondents’ Motion to Recon-

sider and Grant Petition for Writ of Certiorari and Motion to Consoli-

date,” pages 3-16.

—D—PP— ———

entirety (Sections 1-12) that it is solely through the use

of conditional permits that the Kentucky Air Pollution Con-

trol Commission is able to coordinate the various essential

elements of the Kentucky plan and ensure that the purposes

of the Act are accomplished.

If deprived of the use of these conditional permits, the

success of a state's pollution control program depends exclu-

sively upon the willingness of the polluter to voluntarily co-

operate with the state pollution control agency during the

three year pre-attainment period. In their brief and through-

out the course of this litigation, respondents have implicitly

argued for such a system of voluntary compliance by federal

facilities.“

But voluntary cooperation is not what Congress had in

mind when enacting the 1970 Amendments. The legislative

history of the Amendments reflects that Congress was totally

dissatisfied with the earlier, more lenient air pollution acts,

and was particularly aware of the slothful habits of federal

facilities in requesting appropriations for pollution control

devices and putting such devices into actual use pursuant to

those laws. The many reports and hearings on the Amend-

ments indicate time and again that rather than exercising

“See, for example, Resp. Brief, pp. 8-10; App. 37-59.

Respondents do not contend, as did the Sixth Circuit, that Sec-

tion 304 suits provide a means of preventing violations of emission

standards as well as providing for after-the-fact enforcement of vio-

lations. Kentucky v. Ruckelshaus, above, at 1177. (App. 168). This

contention is effectively answered in petitioner’s brief, pp. 45-48,

and other amici briefs.

leadership in controlling air pollution, federal facilities had

been “notoriously laggard” in complying with the law.“

Nor has voluntary cooperation by federal facilities proven

workable as a means of attaining emission and air quality

standards. As one would have expected, the “willingness”

to cooperate expressed years ago by the various federal fa-

cilities has been a poor substitute for the necessity of ob-

taining permits and fulfilling their conditions to which other

facilities have been subjected, the result being that numerous

federal facilities have only begun to take the requisite steps

to achieve the compliance which non-federal facilities have

already attained.

A case in point is respondent Tennes 2c Valley Authority.

In spite of TVA’s alleged willingness to cooperate with the

See, for example, S. Rep. No. 91-1196, 91st Cong. 2d Sess. 23,

37 (1970); H. R. Rep. No. 91-1146, 91st Cong. 2d Sess. 4, 5 (1970);

and S. Cong. Rec. Vol. 116, Part 24, p. 32911, September 21. 1970.

Acceptance by this Court of respondents’ argument that federal

facilities are not subject to state permit requirements pursuant to

Section 118 would be a step backward from the more lenient require-

ments of the 1963 and 1967 Acts since even under these laws federal

facilities were subject to operating permits.

The original Clean Air Act, as enacted by Congress in 1955, made

no reference to federal facilities. The 1959 Amendments, however,

required operators of federal facilities to “cooperate” with state and

local air pollution control agencies “to the extent practicable and

consistent with the interests of the United States and with available

appropriations. .. .” (Section 118; P.L. 88-365; 73 Stat. 646). This

provision was then strengthened by an amenament to the Act of 1963,

retained in 1967, authorizing the Secretary of HEW to establish

classes of pollution sources and to require the operators of federal

facilities to obtain permits from him before operating such sources.

Operators of federal facilities were also required to provide the

Secretary with information deemed relevant to the issuance of these

permits. [1963 Act, Section 7(b), P.L. 88-206, 77 Stat. 392; and

1967 Act, Section 111, P.L. 90-148, 81 Stat. 485.]

— merwes e e

Alabama Air Pollution Control Commission, and the consist-

ent representation by its spokesmen that the May 31, 1975,

deadline would be met without the necessity of submitting it-

self to the requirements of the Alabama permit system, TVA’s

own recently submitted data show that only one of eight

coal-fired boilers at its Widows Creek Steam Plant in North

Alabama is presently in compliance with relevant particulate

emission standards, with presently projected compliance dates

reaching into 1978. As a result of TVA’s poor performance

in this regard, it has been necessary for Alabama to file

suit against TVA requesting the Court to enjoin the opera-

tion of the Widows Creek facilities and/or assess a compen-

satory daily fine to continue as long as TVA operates these

facilities in violation of the law.“

The failure of the voluntary approach urged by respond-

ents is not simply limited to their own respective facilities.

Despite repeated attempts to have all federal facilities sub-

mit data to state pollution control agencies, (App. 83-85),

EPA found it necessary, only a few weeks before the man-

datory attainment deadline in most states of May 31, 1975,

to publish guidelines:

„. . „ to determine the compliance status of all Federal

stationary sources of air pollutants . and establish

firm public commitments to abate emissions as expediti-

“State of Alabama v. Tennessee Valiey Autherity, Civil Action

No. 75-G2067NE, United States District Court for the Northern Dis-

trict of Alabama, filed November 3, 1975.

ously as practical from those facilities exceeding limi-

tations.“ ?“

EPA’s eleventh-hour attempt to exert authority over federal

facilities in an effort to hasten compliance is simply too

little too late. The State of Alabama submits that these

same federal facilities would be in compliance, and the EPA

guidelines would not be necessary, if only the states had

been allowed to subject these federal facilities to the require-

ments of their respective permit systems three years ago.

Interwoven throughout respondents’ brief, the 6th Cir-

cuit opinion, and the letters and memos written on this sub-

ject by respondent EPA, is the notion that there is some-

thing per se objectionable about an arm of the federal gov-

ernment being required to obtain an operating permit from

a state agency — even when the Act specifically states that

it must. Implicit in this notion, perhaps, is the fear of some

form of arbitrary reprisal which may be levied against the

federal facility by an irrational state agency. But as a

practical matter, the best way for a federal facility to pro-

tect itself against the threat of a major legal attack by a state

or citizen with possible severe consequences is by obtaining

a permit and working with the state air pollution control

agency pursuant to the conditions of that permit to ensure

that compliance will be attained as soon as possible. These

40 Fed. Reg. 20664. Ironically, respondents have attempted to

use these guidelines to suport their argument that EPA has consist-

ently interpreted Section 118 to mean that federal facilities are not

subject to state permit requirements.

Read in conjunction with the earlier January 26, 1973, memoran-

dum on this same subject (App. 83-85), these guidelines paint a pic-

ture of the futility of one federal agency attempting to have another

federal agency comply with the law through friendly persuasion.

permits allow for a rational exchange of ideas and informa-

tion, including public particiaption through required public

hearings, as an alternative to litigation which, as this case

has demonstrated, is to no one’s advantage.

IV. THE ENVIRONMENTAL PROTECTION AGENCY’S

INTERPRETATION OF SECTION 118 IS NOT EN-

TITLED TO SPECIAL CONSIDERATION.

Respondents contend that simply because the Environ-

mental Protection Agency has stated its view that Section

118 does not require federal facilities to comply with state

permit requirements, this view is entitled to special consider a-

tion. (Resp. Brief, pp. 31-34). As supporting authority

for their position, respondents primarily rely upon the re-

cent opinion of this Court in Train v. Naturai Resources De-

fense Council, above.

In Train, the Natural Resources Defense Council filed a

petition in the Court of Appeals pursuant to Section 307

(b)(1) of the Act, 42 U.S.C. 1857 h-5(b)(1), to review an

EPA order approving certain provisions of Georgia’s im-

plementation plan relating to the allowance of individual

source variances from the Act’s mandatory 3-year compliance

deadline. In its petition, the NRDC claimed that EPA had

erroneously interpreted Section 110(a)(3) and 110(f) of the

Act, 42 U.S.C. 1857 c-5(a)(3) and (f), which interpretation

had first been incorporated in the original EPA guidelines

promulgated for use by all the states in formulating their

respective implementation plans.“ The Fifth Circuit found

Natural Resources Defense Council v. Environmental Protection

Agency, 489 F.2d 390, 393 fn. 1 (5th Cir. 1974), and Train v. Natural

Resources Defense Council,, 43 L.Ed. 2d, at 741.

for petitioners, but this Court reversed. Citing Udall v. Tall-

man, 380 U.S. 1, 16-18, 13 L.Ed.2d 616, 85 S.Ct. 792 (1965),

and McLaren v. Fleischer, 256 U.S. 477, 480-481, 65 L.Ed.

1052, 41 S.Ct. 577 (1921), the Court, speaking through Jus-

tice Rehnquist, noted that there had “undoubtedly been re-

liance upon its [EP] interpretation by the States and

other parties affected by the Act” and, after a careful re-

view of the language of the Act and its legislative history,

concluded that the EPA construction of the Act had been

“sufficiently reasonable to preclude the Court of Appeals

from substituting its judgment for that of the Agency.”®

The State of Alabama submits that in no event can EPA’s

view of Section 118 be considered “reasonable” in view of

the plain language and legislative history of the Act to the

contrary, and the total failure of voluntary cooperation by

federal facilities as an alternative means of accomplishing the

general goals and objectives of the Act. Furthermore, and

equally as important, the comments of the Court in Train,

Udall, and McLaren clearly indicate that courts generally

will defer to an administrative agency only where there has

been a significant degree of detrimental reliance upon the

agency’s interpretation of the statute in question. Such is

certainly not the case on the facts before us.

Here there were no regulations promulgated by EPA

concerning an interpretation of Section 118, much less as

a part of their original implementation plan guidelines as

in Train v. N.R.D.C. To the contrary, EPA expressly ap-

proved the implementation plan submitted by the Common-

wealth of Kentucky which provided for an extensive permit

“Train v. Natural Resources Defense Council, 43 L.Ed. 2d, at 750;