Petition — Seeber v. Alabama

No. 94-851

In the Supreme Court of the bas Bites f |

OcToBER ‘TERM, 1974

JAN

LYNN SEEBER, GENERAL MANAGER OF iif MARESSRE

VALLEY AUTHORITY, ET AL., PETITIONERS

v.

STATE OF ALABAMA AND ALABAMA AIR POLLUTION

JONTROL CoMMIssION EX Rev. WiuuutamM J. BAaXxiey,

ATTORNEY GENERAL

PETITION FOR A WRIT OF CERTIORARI TU THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROBERT H. BORK,

Solicitor General,

WALLACE H. JOHNSON,

Assistant Attorney General,

HARRY R. SACHSE,

Assistant to the Solicitor General,

EDMUND B. CLARK,

LARRY G. GUTTERRIDGE,

Attorneys,

Department of Justice,

Washington, D.C. 205230,

ROBERT H. MARQUIS,

General Counsel,

HERBERT S. SANGER, JR.,

Deputy General Counsel,

BEAUCHAMP E. BROGAN,

Associate General Counsel,

JUSTIN M. SCHWAMM,

Aasiatant General Counsel,

Tennesace Valley Authority,

Knorville, Tennesace 37902.

In the Supreme Gourt of the Anited States

October TERM, 1974

No.

LYNN SEEBER, GENERAL MANAGER OF THE TENNESSEE

VALLEY AUTHORITY, ET AL., PETITIONERS

v.

Strate or ALABAMA AND ALABAMA AIR POLLUTION

Contro. ComMMiIssion Ex Ret. WitLiaM J. BAXLey,

ATTORNEY GENERAL

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

The Solicitor General, on behalf of the petitioners,

petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Fifth Circuit in this case.

OPINIONS BELOW

The majority and dissenting opinions of the court

of appeals (App. A, infra) are reported at 502 F, 2d

1238. The district court issued no opinion,

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on October 14, 1974..The jurisdie-

tion of this Court is invoked under 28 U.S.C, 1254(1).

(1)

nCG- 504— 74 1

2

QUESTIONS PRESENTED

1. Whether the Clean Air Act, as amended in 1970,

requires federal facilities with air emission sources

(here the T.V.A. and the United States Army Missile

Facility at Redstone Arsenal) to obtain state air pol-

lution control permits to continue operating; or

whether it is sufficient for the federal facilities to

comply with state substantive air pollution control

requirements.

2. Whether Congress has consented to suits by the

States to compel federal facilities to comply with

state air pollution permit requirements.

STATUTES AND REGULATIONS INVOLVED

The Clean Air Act, 42 U.S.C. 1857 et seq., provides

in pertinent parts:

* » * + -

42 U.S.C. 1857f; Clean Air Act Amendments of

1970, Sec. 118, 84 Stat. 1689.

Each department, agency, and instrumental-

ity of the executive, legislative, and judicial

branches of the Federal Government (1) hav-

ing jurisdiction over any property or facility,

or (2) engaged in any activity resulting, or

which may result, in the discharge of air pol-

lutants, shall comply with Federal, State, in-

terstate, and local requirements respecting con-

trol and abatement of air pollution to the same

extent that any person is subject to such re-

quirements. The President may exempt any

emission source of any department, agency, or

instrumentality in the executive branch from

compliance with such a requirement if he de-

termines it to be in the paramount interest of

— _— i i i

3

the United States to do so, except that no

exemption may be granted from section 1857¢-6

of this title, and an exemption from section

1857c-7 may be granted only in accordance

with section 1857e-7(c) of this title. No such

exemption shall be granted due to lack of ap-

propriation unless the President shall have

specifically requested such appropriation as a

part of the budgetary process and the Congress

shall have failed to make available such re-

quested appropriation. Any exemption shall

be for a period not in excess of one year, but

additional exemptions may he granted for

periods of not to exceed one year upon the

President’s making a new determination, The

President shall report each January to the

Congress all exemptions from the requirements

of this section granted during the preceding

calendar year, together with his reason for

granting each such exemption.

42 U.S.C. 1857 h-2; Clean Air Act Amendments

of 1970, See. 304(a), 84 Stat. 1706. .

(a) Except as provided in subsection (b) of

this section, any person may commence a civil

action on his own behalf—

(1) against any person (including (i) the

United States, and (ii) any other governmental

instrumentality or agency to the extent per-

mitted by the Eleventh Amendment to the Con-

stitution) who is alleged to be in violation of

(A) an emission standard or limitation under

this chapter or (B) an order issued by the

Administrator or a State with respect to such

a standard or limitation, or

4

(2) against the Administrator where there

is alleged a failure of the Administrator to

perform any act or duty under this chapter

which is not discretionary with the Adminis-

trator.

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an

emission standard or limitation, or such an

order, or to order the Administrator to perform

such act or duty, as the case may be.

The pertinent provisions of the Alabama Air Pol-

lution Control Rules and Regulations are set forth

in the opinion of the court of appeals, App. A, infra,

pp. 10-13, n. 2.

STATEMENT

The State of Alabama and the Alabama Air Pol-

lution Control Commission brought this action for

declaratory and injunctive relief in the United States

District Court for the Northern District of Alabama

to require a number of federal agencies and officials,

including the Tennessee Valley Authority and the

United States Army, ‘‘to apply for and to obtain

permits from the Alabama Director of the Alabama

Air Pollution Control Commission”? if they are to

continue operating facilities in Alabama which are

sources of air emissions, Alabama contended that

federal agencies and officials are required to obtain

such state administrative permits by virtue of Section

118 of the Clean Air Act (supra, pp. 2-3) and the

applicable state regulations (App. A, infra, pp. 10-13,

n. 2).

On cross-motions for summary judgment, the dis-

trict court dismissed the complaint. On appeal, the

court of appeals reversed and held (one judge dis-

x.

———S==

5

senting) that “federal facilities are subject to the

Alabama permit requirement,” (App. A, infra, p. 15)

and that those requirements may be enforced by the

State against the United States in the district court

(id. at 26-28). The court acknowledged (App. A,

infra, p. 14) that its decision is in direct conflit with

the recent decision of the Sixth Cireuit in Kentucky

v. Ruckelshaus, 497 F. 2d 1172 (pending on petition

for a writ of certiorari, No. 74-220).

REASONS FOR GRANTING THE WRIT

1. The decision below, in holding federal facilities

subject to state air polintion permit requirements, ig

in direct conflict with the recent decision in Kentucky

ex rel. Ilancock vy. Ruckelshaus, 497 F, 2d 1172 (CLA.

6), pending on petition for a writ of certiorari, No.

74-220."

The court below expressly recognized the conflict,

stating (App. A, infra, p. 14):

| W]e reach a result contrary to decisions of the

Sixth Cirenit, Kentucky v. Ruckelshaus, 497 F.

94 1172 (C.A. 6, 1974), and the District Court

for the Central District of California, Califor-

nia VY. Stastny, [382] F. Supp.[222] (C.D. Cal.

1972), appeal docketed, No, 72-2905, C.A. 9,

Nov. 6, 1972.

In Kentucky, the Sixth Cireuit held, with respect

to federal facilities iff Kentucky (497 F. 2d at 1176-

1177; emphasis added) :

The appellant argues that Congress deter-

mined in this instance to submit federally

owned and operated facilities to state regula-

* The federal respondents in that case are not opposing the

granting of certiorari, in light of the conflict with this case

and the importance of the issue.

6

tion by providing, in section 118, that agencies

of the federal government “shall comply” with

state requirements. * * * This language ap-

pears to us to refer only to substantive require-

ments and not to encompass the Kentucky regu-

lation which requires permits. * * *

* * * The chief purposes of the [Clean Air]

Act are ‘to protect and enhance the quality of

the Nation’s air resources” (§ 101(b)(1)) and

rapidly bring into being “a program to achieve

the prevention and control of air pollution.”

(§ 101(b)(2)). We do not believe the congres-

sional scheme for accomplishment of these pur-

poses included subjection of federal agencies

to state or local permit requirements. Congress

did commit the United States to compliance

with air quality and emission standards, and it

is undisputed in this record that the federal

facilities in Kentucky have cooperated with the

Commission toward this end. The national dedi-

cation to improvement of the environment by

prevention and control of air pollution is in no

way impeded by exempting federal agencies

from the permit requirement of * * * [Ken-

tucky law].

2. In addition to a conflict on the substantive issue,

the two courts of appeals also disagreed on the appli-

cability of the doctrine of sovereign immunity to the

non-TVA defendants in each case. In the present

case, the Fifth Cireuit found a waiver of immunity

in the general language of Section 118 which it con-

strued as independent of, and in addition to, the

specific but limited waiver of immunity in Section

304 (see pp. 3-4, supra). In reaching the opposite con-

7

clusion in Kentucky, the Sixth Cireuit applied the

long-standing principle that waivers of sovereign im-

munity are to be strictly construed.” Finding no

express waiver in Section 118 and a specific but lim-

ited waiver in Section 304 (authorizing certain citi-

zen’s suits against the government), it concluded that

federal compliance with Section 118 could be com-

pelled judicially by a citizen’s suit under Section 304

for a substantive violation of the Act, but not by a

suit by a State to enforce its permit program.

3. In addition to the Alabama and Kentucky cases

decided by the courts of appeals for the Fifth and

Sixth Circuits, the same or similar issues of federal

compliance with state permit requirements are now

pending before the Ninth Circuit (California v.

Stastny, supra) and before federal district courts in

Illinois, Pennsylvania and Tennessee.’

Since under the federal Act non-exempt federal

facilities concededly must meet all substantive emis-

sion standards, the question in these cases is not

whether pollution should be abated, but the permis-

sible degree of state control over federal facilities.

As the Alabama permit provisions demonstrate (see

App. A, infra, pp. 10-13, n. 2), the application of state

permit programs could result in the transfer of sig-

nificant control over federal facilities to state govern-

ments. There is, we submit, an insufficient basis in the

*See, e.g.. Nern-Limerick, lune. Vv. Scurlock, 347 U.S. 110,

122; Mayo v. United States, 319 U.S. 441, 446; United States v.

Sherwood, 312 U.S. 584, 590.

* Jlinois v. Department of Defense, N.D. Ull., Civ. No. i+

C-3122 (Joliet Arsenal air case) ; United States v. Pennsylvania

Environmental Hearing Foard, 377 F. Supp. 545 (M.D. Pa.) ;

Chattanooga-Hamilton County Air Pollution Control Board v.

10'1-Atlas, E.D. Tenn., Civ. No. 6581 (Volunteer Arsenal air

case ).

Clean Air Act Amendments of 1970 for imputing to

Congress an intent to bring about so far-reaching a

change in the distribution of governmental power

within the federal system.

CONCLUSION

The petition for a writ of certiorari should be

granted. However, because the same questions are

presented in the pending petition for a writ of cer-

tiorari in No, 74220, the Court may wish to hold

the present petition pending its disposition of No.

74-220.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Wattace H, Jonnson,

Assistant Attorney General,

Harry R. Sacusr,

Assistant to the Solicitor General.

Epmunp B. Ciark,

Larry G. GuTrERRIDGE,

Attorneys.

Rorert H. Marevis,

General Counsel,

Herbert 8. Sancer, Jr.,

Deputy General Counsel,

Bravcuamp FE, Brogan,

Associate General Counsel,

Justin M. Scuwamo™,

Assistant General Counsel,

Tennessee Valley Authority.

JANUARY 1975.

~---

APPENDIX A

United States Court of Appeals, Fifth Cireuit

Srare or ALABAMA AND ALaBAMA AIR POLLUTION

ControL COMMISSION EX REL. WiLLiAM Jy BAX ey,

ATTORNEY GENERAL, PLAINTIFFS-APPELLANTS

v.

LYNN Sreser, GENERAL MANAGER OF TENNESSEE

VALLEY AUTHORITY, ET AL., DEFENDANTS-APPELLEES,

No, 73-2766

Oct. 14, 1974

Before Godbold, Simpson arfd Ingraham, Circuit Judges

GopsoLp, Circuit Judge: Plaintiffs appeal from a

summary judgment denying declaratory and injunc-

tive relief and holding that 42 U.S.C. § 1857f, § 118

of the Clean Air Act Amendments of 1970 (the Act),

does not require defendants to comply with a state

requirement, previously approved by the Environ-

mental Protection Agency, that a written permit be

obtained for the operation of equipment causing air

pollution. Plaintiffs are the State of Alabama and

the Alabama Air Pollution Control Commission (the

Commission). Defendants are the Tennessee Valley

Authority and various TVA officials (hereinafter

“TVA’’), and various officers and agencies of the

United States Army (hereinafter “the Army’’).’

‘In the District Court the defendants also included officials

of the Environmental Protection Agency. The District Court

dismissed the complaint as to them, and plaintiffs do not

appeal therefrom.

(9)

566-594—74-—-2

10

Rule 1.12 of the Commission, provisions of which

are set out in the margin,® requires obtaining from

that body a written permit for the operation of any

equipment the use of which may cause an increase in

air pollution. This rule is a part of the implementation

plan for the control of air pollution formulated by

Alabama and approved by the Administrator of EPA

in accordance with § 110 of the Act [42 U.S.C. § 1857¢-

5]. See 37 Fed. Reg. 10847-10848 (1972). Defendants

have supplied information concerning their emissions

of air pollutants to the Commission and have taken

steps to abate those emissions, but they refuse to apply

for permits in the belief that the Act does not subject

them to the Rule 1.12 permit requirement. We must

interpret the Act, and particularly § 118, in order to

* 1.12 Permits.

1.12.1 Permits Required.

(a) Permit to Construct. Any person building, erecting, alter-

ing or replacing any article, machine, equipment or other con-

trivance, the use of which may cause the issuance of or an

increase in the issuance of air contaminants or the use of which

may eliminate or reduce or control the issuance of air con-

taminants, shall first obtain authorization for such construction

from the Director in the form of a Permit to Construct. A

Permit to Construct shall remain in effect until the permit to

operate the equipment for which the application was filed is

granted or denied or the application is canceled.

(b) Permit to Operate.

(1) Before any article, machine, equipment or other con-

trivance deseribed in paragraph (a) may be operated or used,

a written permit shall be obtained from the Director. No per-

mit to operate shall be granted for any article, machine, equip-

ment or contrivance described in paragraph (a), constructed

or installed without authorization as required by paragraph

(a), until the information required as presented to the Director

and such article, machine, equipment or contrivance is altered,

if necessary, and made to conform to the standards established

by the Commission.

Se ee Se ee

ll .

(2) Any article, machine, equipment or other contrivance

described in paragraph (a) which is presently operating (or

which is not presently operating but which is capable of being

operated) without a Permit to Operate, may continue to oper-

ate (or may restart) only if its owner or operator obtains a

Permit to Operate prior to a date to be set by the Director

(or prior to restarting).

(3) The Director shall have the authority to decide cases where

an article, machine; equipment, or other contrivance is not

clearly subject to nor exempt from the application of this Part.

In addition, the Director may rule that a particular article,

machine, equipment or other contrivance is subject to the appli-

cation of this Part even though it is exempt from the system

according to Sections 1.12.1 and 1.12.2 of this Part. The opera-

tor or builder of such an article, a machine, equipment or other

contrivance may appeal the Director's classification to the Com-

mission, which shall overrule the Director only if it is shown

that he acted arbitrarily and contrary to the purposes of the

Act. e

* * * ak ~

(b) The Director shall deny a permit if the applicant does

not present, in writing, a plan whereby the emission of air con-

taminants by every article, machine, equipment, or other con-

trivance described in the permit application, will be reduced

during periods of an Air Pollution Alert, Air Pollution Warn-

ing, and Air Pollution Emergency in accordance with the pro-

visions of Chapter 2.

(c) Before a Permit to Construct or Permit to Operate is

granted, the Director may require the applicant to provide and

maintain such facilities as are necessary for sampling and test-

ing purposes in order to secure information that will disclose

the nature, extent, quantity or degree of air contaminants dis-

charged into the atmosphere from the article, machine, equip-

ment or other contrivance described in the Permit to Construct

or Permit to Operate. In the event of such a requirement, the

Director shall notify the applicant in writing of the required

size, number and location of the sampling platform; the access

to the sampling platform; and the utilities for operating the

sampling and testing equipment, (Continued)

12

(Continued)

(d) The Director may also require the applicant to install,

use and maintain such monitoring equipment or methods;

sumple such emissions in accordance with such methods, at such

locations, intervals and procedures as may be specified; and

provide such information as the Director may require.

1.12.7 Provision of Sampling and Testing Facilities. A

person operating or using any article, machine, equipment

or other contrivance for which these rules and regulations

require a permit shall provide and maintain such sampling and

testing facilities as specified in the Permit to Construct or

Permit to Operate.

1.12.8 Standards for Granting Applications,

(a) The Director shall deny a permit exeept as provided by

Section 1.12.9. if the applicant does not show that every article,

machine, equipment or other contrivance, the use of which may

cause the issuance of air contaminants, is so designed, con-

trolled, or equipped with such air pollution control equip-

ment, that if may be expected to operate without emitting or

Without causing to be emitted air contaminants in violation

of these rules and regulations.

* * *

(h) In granting any Permit to Operate, the Director may

tllow, as a condition of such permit, for the intermittent

discharge of air contaminants, during startup, shut down, rate

change or load change, in excess of the limitations specified

in these rules and regulation, where he finds that because of

the nature of the source there is no practicable alternative.

1.12.9 Conditional Permit.

(a) The Director may issue a Permit to Construct or a Per-

mit to Operate subject to conditions which will bring the

operation of any articie, machine, equipment or other con-

trivance within the standards of Section 1.12.8. in which case

the conditions shall be specified in writing. Commencing work

under such a Permit to Construct or a Permit to Operate shall

he deemed acceptance of all the conditions specified. The

Director shall issue a Permit to Construct or a Permit to Oper-

ate with revised conditions upon receipt of a new epplication,

if the applicant demonstrates that the article, machine, equip-

13

ment or other contrivance can operate within the standards

of Section 1.12.8 under the revised conditions,

(b) A Conditional Permit may allow an article, machine,

equipment or other contrivance to be operated in violation of

the conditions of Section 1.12.8 if one of the conditions of

the permit is a definite schedule by which the article, machine,

equipment, or contrivance may attain the conditions of Section

1.12.8 and be granted a Permit to Operate, and if the schedule

provides for attaining the conditions of Section 1.12.8 at the

earliest: possible date and is approved by the Director, A Con-

ditional Permit will be revoked if the applicant does not submit

progress reports to the Director according to the schedule

established by the Conditional Permit. The Director may fur-

ther revoke the Conditional Permit if the progress reports

do not show satisfactory progress as specified by the terms of

the Conditional Permit or if the progress reports are found

to be inaccurate.

ok * * oe wt

1.12.11 Denial of Application. In the event of denial of a

Permit to Construct or Permit to Operate, the Director shall

notify the applicant in writing of the reason therefor, Service

of this notification may be made in person or by mail, and

such service may be proved by written acknowledgemeit of

the persons served or affidavit of the person making the

service, The Director shall not accept a further application

unless the applicant has complied with the objections specified

by the Director as its reasons for denial of the Permit to

Construct or the Permit to Operate.

1.12.12 Appeals. Within 10 days after notice by the Director

of denial or conditional approval of a Permit to Construct

or Permit to Operate, the applicant may petition the Com-

mission, in writing, for a review. The Commission may sustain

or reverse the action of the Director; such order may be made

subject to specified conditions,

1.12.13 The holder of a Permit under this Part shall comply

with conditions contained in such Permit as well as all applica-

ble provisions of these rules and regulations except where vio-

lations are specifically allowed in accordance with a Condi-

tional Permit issued under Section 1.12.9,

14

determine whether that refusal is justified.” We

conclude that it is not. In doing so we reach a resuit

contrary to decisions of the Sixth Circuit, Kentucky

V. Ruckelshaus, 497 F. 2d 1172 (C.A. 6, 1974), and

the District Court for the Central District of Cali-

fornia, California v. Stastny, F. Supp. (C.D.

Cal. 1972), appeal docketed, No. 72-26 do, C.A. 9,

Nov. 6, 1972. The Stastny decision states a conclusion

without explication of the supporting analysis. Our

reasons for reaching a conclusion different from the

Sixth Cireuit appear below.

I. Interpretation of § 118

[1] Section 118 of the Act [42 U.S.C. § 1857f]

provides :

Kach department, ageney, and instrumen-

tality of the executive, legislative, and judicial

branches of the Federal Government (1) having

Jurisdiction over any property or facility, or

(2) engaged in any activity resulting, or which

may result, in the discharge of air pollutants

shall comply with Federal, State. interstate,

and local requirements respecting control and

abatement of air pollution to the same extent

that any person is subject to such requirements.

The President may exempt any emission source

of any department, agency, or instrumentality

in the executive branch from compliance with

such a requirement if he determines it to be

* We are left to guess at the District Court reasons for its

order granting summary judgment since it gave none. See

Nteed Vv. Central of Gia. Py. ("'o.. 177 F. od 13 3, 1505 (CAS,

1973), as to the desirability of the court’s stating its grounds

though not required by Rule 56 to do so. Especially is that

true in a ease of such national importance as this. Amici

curiae filing briefs in this court include the states of California

Kentucky, Maine, New York, Ohio and Texas. )

15

in the paramount interest of the United States

to do so, except that no exemption may be

granted from section 1857c-—6 of this title, and

an exemption from section 1857e—7 of this

title may be granted only in accordance with

section 1857e—7(c) of this title. No such ex-

emption shall be granted due to lack of appro-

priation unless the President shall have spe-

cifically requested such appropriation as a part

of the budgetary process and the Congress

shall have failed to make available such re-

quested appropriation. Any exemption shall be

for a period not in excess of one year, but

additional exemptions may be granted for pe-

riods of not to exceed one year upon the Presi-

dent’s making a new determination. The Presi-

dent shall report each January to the Congress

all exemptions from the requirements of this

section granted during the preceding calendar

year, together with his reason for granting

each such exemption.

The phrase ‘‘shall comply with * * * State * * *

requirements respecting control and abatement of air

pollution to the same extent that any person is subject

to such requirements” effectively conveys a Congres-

sional intent that federal facilities are to be treated

equally with private facilities in the scheme of control

established by the Act. Recognizing that in particular

instances such treatment might prove inconsistent

with the national interest, the section provides for

executive exemption from any requirement.

[2] The scheme of the Act as a whole also supports

the conclusion that federal facilities are subject to

the Alabama permit. requirement. With respect to

existing stationary sources of air pollution the Act

places the primary responsibility for setting and

enforcing emission standards or limitations on the

td

16

states. EPA, pursuant to § 109 of the Act [42 U.S.C.

§ 1857-4 | establishes primary and secondary ambient

air quality standards, and the states, pursuant to

§110 [42 U.S.C. § 1857¢-5] establish, subject to ap-

proval by EPA, implementation plans geared to meet-

ing the air quality standards. Such implementation

plans include, inter alia, “emission limitations, sched-

ules, and timetables for compliance with such limita-

tions, and such other measures as may be necessary

to insure attainment and maintenance” of the air

quality standards, provisions “for establishment and

operation of appropriate devices, methods, svstems.

and procedures necessary to (i) monitor, compile, and

analyze data on ambient air quality,” and ‘‘necessary

assurances that the State will have adequate person-

nel, funding, and authority to carry out such imple-

mentation plan.” §110(a)(2) (B), (C) & (IF). The

Alabama permit requirement is a part of the Alabama

unplementation plan previously approved in accord-

ance with the provisions of § 110, Indeed, as inspection

of the rule itself indicates, it is not only a part of

the implementation plan but appears to be the central

mechanism by which the Alabama plan provides for

the gathering of information and the enforcement of

emission limitations necessary to achieve air quality

standards, )

Sections 111, 112, and 114 [42 U.S.C. 66 1857¢-6

1857-7, and 1857¢-9] of the Act explicitly exempt

certain federal facilities from state authority to en-

force requirements established by EPA pursuant to

those sections.’ Those sections deal with specialized

‘Section 111 [42 U.S.C. § 1857-6] provides for establish-

ment by the Adminifrator of EPA of emission standards

for new sources of air pollution, Subdivision (c¢)(1) of the

section provides :

Kach State may develop and submit to the Administrator

a procedure for implementing and enforcing standards of

17

performance for new sources located in such State. If the

Administrator finds the State procedure is adequate, he shall

delegate to such State any authority he has under this chapter

to implement and enforce such standards (except with respect

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

Section 112 [42 U.S.C. §$ 1857¢-7] provides for EPA estab-

lishment of emission standards for hazardous air pollutants

not covered by ambient air quality standards. In language

parallel to that contained in § 111(¢)(1), subsection (dl) (1)

of § 112 provides for delegation of implementation and enforce-

ment authority to the states “except with respect to stationary

sources owned or operated by the United States.”

Section 114 [42 U.S.C. § 1857¢-9] provides in part:

“< INF 0-9, Recordkeeping. Hs pections, monitoring, and en-

try Authority of ANdministrvator or authorized representa-

tive

“(2) For the purpose (i) of developing or assisting in the

development of any implementation plan under section 1857c—

b or section 1857e—6(d) of this title, any standard of per-

formance under section 1857¢-—6 of this title, or any emission

standard under section 1857c—7 of this title, (ii) of determin-

ing whether any person is in violation of any such standard or

any requirement of such a plan, or (iii) carrying out section

IS5Th-— 1 of this title

“(1) the Administrator may require the owner or operator of

any emission source to (A) establish and maintain such records,

(B) make such reports, (C) install, use, and maintain such

monitoring equipment or methods, (D) sample such emissions

(in accordance with such methods, at such locations, at such

intervals, and in such manner as the Administrator shall pre-

scribe), and (FE) provide such other information as he may

rensonably require; and

“(2) the Administrator or his authorized representative, upon

presentation of his credentials—

“(4) shall have a right of entry to, upon, or through any

premises in which an emission source is located or in which any

records required to be maintained under paragraph (1) of this

section are located, and

“(13) may at reasonable times have access to and copy any

records, inspect any monitoring equipment or method required

under paragraph (1). and sample any emissions which the

506-504 74 3

IS

emission standards for new sources and hazardous

pollutants and with recordkeeping, inspection and

monitoring requirements established directly by EPA.

In view of these explicit exemptions for federal

facilities, particularly the exemptions in §§ 111 and

112, which like § 110 establish control schemes for

certain classes of air pollution sources, the absence

of any such exemption in $110 suggests that the

provisions of implementation plans adopted and

approved pursuant to that section, including provi-

sions for state enforcement of emission limitations

through permit systems, are applicable to federal

facilities.

[3] The general scheme that emerges from the Act

as a whole appears to be that responsibility and

authority for enforcement with respeet to federal

facilities are granted to the states for sources with

respect to which state implementation plans establish

the criteria for enforcement, and is granted to EPA

in those instances (7.e., new sourees and hazardous

pollutants) where EPA establishes the eriteria. The

scheme is a reasonable one. Because of variations in

air quality between states and regions the emissions

criteria established under state plans may vary con-

siderably, thus making enforcement by EPA against

scattered federal facilities administratively difficult.

owner or operator of such source is required to sample under

paragraph (1).

“Enforcement procedure by State; delegation of authority of

Administrator to State; power of Administrator unaffected

“(b)(1) Each State may develop and submit to the Adminis-

trator 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).”

19

The new source and hazardous pollutant criteria

established by EPA, however, are not tied to air qual-

ity standards and may, therefore, vary little or not

at all by area, making EPA enforcement against

federal facilities more convenient.

The Congressional purpose in enacting § 118 sup-

ports our reading of the Act. The legislative history

indicates that Congressional displeasure with the per-

formance of federal facilities under the then existing

provisions of the Air Quality Act of 1967 prompted

the enactment of § 118. In hearings on the Clean Air

Amendments of 1970, the Senate Public Works Com-

mittee found “many incidents of flagrant violation of

air and water pollution standards by Federal facili-

ties; S. Rep. No. 91-1196, 91st Cong., 2d Sess., at 23

(1970). Additionally the Committee noted,

Federal agencies have been notoriously laggard

in abating pollution and in requesting appro-

priations to develop control measures. * *

Id. at 37. See also, H. Rept. No. 91-1146, 91st Cone.,

2d Sess., in 1970 U.S. Code Cong. & Admin. News at

5360. Section 111 of the prior Act relied primarily

on voluntary compliance by federal facilities. In

strengthening the Act by replacing that section with

present §118 Congress sought to depart from = the

policy of voluntary compliance and make emission

limitations enforceable against federal facilities. With

respect to existing sources the Act places upon the

states primary responsibility for establishing and

enforcing emission limitations, and Alabama, like

many other states, relies on a permit system as its

method of enforcement as well as a method of gener-

ating information concerning emissions. To deny the

applicability to federal facilities of that permit re-

quirement would be tantamount to a return to the

20

Congressionally-rejected policy of voluntary comphi-

ance by federal facilities.° Moreover a holding that

§118 does not embrace permit systems would repre-

sent a retreat from the provisions of prior § 111.

That section allowed the Secretary of HEW to estab-

lish classes of pollution sources for which federal

facilities could be required to obtain a permit from

the Seeretary. Since §118 does not distinguish he-

tween federal and state requirements, holding state

permit systems outside the scope of §118 would

imply the same conelusion with respect to any

federal permit system. The result would be that the

Administrator of EPA (who assumed responsibility

for air pollution control activities when EPA was

established) could not under the stronger 6118 do

what the Seeretary of HEW was explicitly entitled

to do under the prior § 111.

Defendants seek to avoid the impact of $118 by

engrafting upon it a substantive procedural overlay.

They argue that the phrase “requirements respecting

control and abatement of air pollution’? means only

requirements such as emission standards and limita-

tions, which they label “‘substantive,’’ and does not

include mechanisms, ¢.g., permit systems for enforcing

these requirements.’ Having affixed these new labels,

defendants would have us infer that while federal

} Defendants argue that the “state could seek to enforce

its emission limitations by resort to court actions under the

“citizens suits” provision, $30) [42 U.S.C. §1857h-2] of the

Act. Trrespective of the merits of this suggestion, we believe

that $304 provides littl guidance to determining the Con-

eressional purpose in enacting $118. Our reasons are diseussed

in Part III infra.

*This approach necessarily leads them to de-emphasize

the remainder of the phrase, which reads “to the same extent

that any person is subject to such requirements.”

21

agencies must, and will, comply with the “substan-

tive,”’ it was not intended that they be bound by the

‘“*procedural,’’ a term which in defendants’ construct

is sub-silentio pejorative, impliedly denigrating the

Congressionally-mandated mechanisms of enforcement

to a status of less dignity and import. This recharac-

terization of the statutory scheme is a semantieal red

herring. It draws no sustenance from the Act itself.

No such limitation is apparent from the words of

8118. Moreover tie language of $116 [42 U.S.C.

§ 1857d-1] is inconsistent with defendants’ reading of

“requirements.’” There Congress used words identical

to the § 118 “requirements’’ phrase.

Except as otherwise provided * * * nothing

in this chapter shall preclude or deny the right

of any State or political subdivision thereof to

adopt or enforce (1) any standard or limitation

respecting emissions of air pollutants or (2)

any requirement respecting control or abate-

ment of air pollution * * *

The “or” in §116 is clearly disjunctive. Therefore,

contrary to the position of the defendants, **require-

ments’? must include more than emission standards or

limitations. Finally if § 118 did not extend to enforee-

ment mechanisms, it would be difficult to understand

why Congress explicitly afforded exemptions from

state enforcement in $$ 111 and 112. Both sections

provide that if the Administrator finds a state-devel-

oped procedure for implementing and enforeing the

emission standards and limitations developed by EPA

under those sections adequate, “he shall delegate to

such State any authority he has under this chapter to

implement and enforee such standards” exeept with

respect to federal facilities. If § 118 did not inelude

enfoy.ement mechanisms, there would be no need for

these exemptions. "

22

In Kentucky v. Ruckelshaus, supra, the Sixth Cir-

cuit picked up the defendants’ substantive-procedural

recharacterization and held that § 118 is limited to

“substantive” requirements, a category from which it

excluded permit systems. As we read its opinion, that

court’s conclusions rest on these factors: the ability

of states to sue federal facilities under § 304 [42

U.S.C. § 1857h-2] of the Act; statements contained in

the legislative history; and the lack of support in Ex-

ecutive Orders for the contention that § 118 includes

“procedural” permit requirements. With deference,

we find these factors unconvincing. The inference

from § 304 is discussed infra at Part IIT; the legis-

lative history is discussed below in this section of our

opinion; and Executve Order No. 11752 is diseussed

infra at Part IV.’

Defendants’ principal attempt to justify their posi-

tion, and one of the factors relied on by the Sixth

Circuit in-its decision, consists of what seems to us

a strained reading of the <Act’s legislative history.

They rely on the brief summary of §118 contained

in the Conference Report, H. Rep. No. 91-1783, 91st

Cong., 2d Sess., at 48 (1970), U.S. Code Cong. &

Admin. New, p. 5381, which reads, “The House bill

and the Senate amendment declared that Federal

departments and agencies should comply with ap-

plicable standards of air quality and emissions.”

Taken in isolation this statement would seem to sug-

gest that ‘“‘requirements” means emission limitations,

‘Sut other factors lead us to assign it little weight.

In response to the problem of inadequate compliance

"The Sixth Cireuit also noted the “lack of support” for

plaintiffs’ interpretation of § 118 in Executive Order No. 11507.

That Order was promulgated in February 1970, while the Clean

Air Act Amendments were not approved until December 31,

1979.

Oe seen

23

by federal facilities with air pollution control meas-

ures the House of Representatives passed H.R. 17255

requiring that federal facilities *‘comply with appli-

cable Federal, State, interstate, and local emission

standards and with the purposes of this Act. * * *”’

The bill passed by the Senate, S. 4358, however, stated

that federal facilities “shall comply with the require-

ments of this Act in the same manner as any person

must so comply. * * *’’ As reported by the Conference

and as enacted in Public Law 91-604, the final pro-

vision requires that federal facilities “comply with

Federal, State, interstate and local requirements re-

specting control and abatement of air pollution to

the same extent that any person is subject to such

requirements.” The change from “emission standards”

in H.R. 17255 to ‘‘requirements’’ in the fina! version

supports the more inclusive view of § 118. Given the

change in language from ‘‘emission standards” in the

House bill to “requirements” in the final version, the

apparent attempt to put federal facilities on the same

footing as any other person, the lack of any apparent

limitation in the language of § 118 itself or any dis-

cussion of such a limitation anywhere in the legis-

lative history, and the scheme of the Act as a whole,

we believe that the Conference Report statement is

more accurately read as a statement of the ultimate

goal of the provision rather than as a read map of

how to get there. No one disputes that the goal of

§ 118 is to assure compliance by federal facilities with

air quality and emission standards. The question is

rather whether Congress intended that the enforce-

ment mechanisms of federally approved state imple-

mentation plans, in this case permit systems, would

be used as a method of achieving this goal. And

with regard to this question the legislative history,

except to the extent that it reveals the Congressional

24

purpose discussed earlier, is ambiguous. Confronted

with this ambiguity, we rely on the words of 6 118,

the scheme of the Act as a whole, and what we discern

to be the Congressional purpose, as the best guides

to interpreting the section.

Finally defendants suggest that allowing states to

subject federal facilities to the procedural require-

ments contained in state implementation plans would

he unduly burdensome. This argument is substantially

undermined by the defendants’ contention that even

absent subjection to the permit requirement they are

hound to, and will, comply with substantive emission

limitations, compliance schedules, information gather-

ing and monitoring requirements. Some burden may

remain, but under the scheme enacted by Congress

determination of whether that burden is undue, and

relief if it is, is a matter for executive rather than

judicial decision, Section 118 itself authorizes the

President to exempt federal facilities from any state

“Other bits and pieces of legislative history are similarly

inconclusive, Some statements resemble the Conference Report

statement quoted in the text. See Library of Congress for

the Senate Comm. on Publie Works, 93d ¢ ‘ong.. 2d Sess.. A

Legislative History of the Clean Air Amendments of 1970

(Comm. Print 1974) at 423 (Ss. Rep. No. 91-1196, supra, at 25:

“This section requires, that Federal facilities meet the CMUISSLOn

standards necessary to achieve ambient air quality standards

as well as those established in other sections of Title I"): 804

(IT. Rep. No. 91-1146, supra: “The legislation directs Federal]

* * * to comply with applicable Federal, State, inter-

state, and local emission standards.”); 904-905 (TI. tep. No.

1-L146, svpra; statement paralleling that cited at 894.). Other

Statements appear to imply that $118 should be given an

expansive interpretation. See Jd. at 131 (Sen. Muskie’s Sum-

mary of the Conference Agreement: “The agreement requires

agencies

25

requirement ‘if he determines it to be in the para-

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

If. The Supremacy Clause

[4] The TVA defendants do not claim sovereign

immunity from suit but do claim that TVA, as an

‘agency and instrumentality of the federal govern-

ment,’ is exempted from state regulation by the

Supremacy Clause, Art. VI, clause 2 of the United

States Constitution. The Army similarly invokes the

clause. On the strength of this argument, the Sixth

Circuit recently held in Kentucky vy. Ruckelshaus,

supra, that Kentucky cannot compel TVA’s compli-

ance with a Kentucky air pollution control permit

system, That holding was premised on the Sixth Cir-

enit’s conclusion that §118 was limited to ‘substan-

tive” requirements and thus did not authorize sub-

jecting federal facilities to the Kentucky permit re-

quirements. Absent the § 118 authorization, the Su-

premacy Clause barred state enforcement of the re-

quirement. Given the premise, we would not disagree

with the conclusion, It is on the proper interpreta-

tion of 6118 that we part company with the Sixth

Cireuit. For the reasons explicated in Part [ supra,

we believe that 6118 does embrace the Alabama per-

mit requirement. Having reached this conclusion, the

Federal facilities to control air pollution.”); 459 (S. Rep. No.

O1-1106, supra, at 59: “This section directs that all Federal

avencies shall comply with the requirements of the Act just

as a nonfederal agency or individual must do in the administra-

tion of any real property or facility and in the conduct of

any activity.”).

* Except that he may not grant an exemption “due to lack

of appropriation” unless the appropriation was requested by

the President and denied by the Congress.

26

Supremacy Clause is inapplicable because Congress

has authorized subjecting federal facilities to the state

regulation involved. “It lies within Congressional

power to authorize regulation * * * by the state of

federal instrumentalities.”’ Mayo v. United States, 319

U.S. 441, 446, 63 S. Ct. 1137, 1140, 87 L. Ed. 1504

1508 (1948). Section 118 adequately meets the require-

ment that Congress “affirmatively declare its instru-

mentalities or property subject to [state] regulation.

* *" Td. at 448, 63 S. Ct. at 1141, 87 L. Ed. at

1509. Cf. Baltimore National Bank y. State Tax Com-

nussion, 297 U.S. 209, 56 S. Ct. 417. 80 L. Ed. 586

(1936). Moreover, it is at least arguable that the reg-

ulation involved here is as much federal regulation

as state. The Alabama permit requirement was in-

cluded in an implementation plan approved by EPA

under §110 of the Act. The Act gives EPA power

to enforce any implementation plan requirements

§ 113, and also provides for citizen suits in federal

courts to enforce at least some such requirements

§ 304. Neither of these provisions is consistent with

the view that the components of approved implemen-

tation plans are exclusively state regulations.

IIT. Sovereign Tmmunity

[5] Distinct from the Supremacy Clause issue, the

Army defendants argue that as against them this

action is barred by the sovereign immunity of the

( nited States from suit. Our determination of the

meaning of § 118 also forecloses this contention. That

section states that federal facilitie®‘shall comply”

with state “requirements respecting control and abate-

ment of air pollution,” a phrase which we interpret

to include the Alabama permit requirement. This

statement occurs in the context of an Act which relies

27

in the first instance on state enforcement of such

requirements after their approval by EPA.” Little

or no inference is required to conclude that § 115

embodies a waiver of sovereign immunity with respect

to federal facilities. A contrary result would render

largely meaningless our conclusion es to the scope of

§ 118 and herald a return to the policy of voluntary

compliance which Congress sought to change by enact-

ing that section.

The defendants contend in an argument accepted

by the Sixth Circuit that § 304 authorizes suits against

the United States for violation of an ‘emission stand-

ard or limitation,” as therein defined, or an order with

respect thereto; that it does not authorize suits for

failure to comply with permit requirements; and that,

therefore, we should infer that Congress did not con-

sent to suits against federal facilities regarding per-

mit requirements. The argument is. unconvincing.

Even assuming that a state is technically a “person”

entitled to sue under § 304, see Kentucky v. Ruckel-

shaus, supra, and that § 304 does not authorize suits

for violation of permit requirements, it does not fol-

low that § 118 does not authorize such suits, The “Citi-

zens Suits” heading of § 304, the fact that § 304(d)

provides for awarding attorney fees, and the legisla-

tive history of the section " demonstrate that the con-

” Thus, §101(a)(3) declares “the prevention and control of

air pollution at its source is the primary responsibility of

States and local governments * * *,” and 8 110(a)(2)(F) (i)

requires state implementation plans to contain “assurances that

the State will have adequate personnel, funding, and author-

ity to carry out such implementation plan.”

t See, e.g., A Legislative History of the Clean Air Amend-

ments of 1970, note 8, supra, at 127 (Remarks of Sen. Muskie

on the Conference Report: “The bill extended the concept of

public participation to the enforcement process.”) ; 205-206

(Conference Report) ; 436-439 (Senate Report).

28

gressional focus in enacting that provision was on

suits by private parties. Consequently, we believe that

§ 304 cannot be properly read as implying anything

about the ability of states to sue under N 118.

LV. Executive Order No. 11752

[6] Alabama initially sought to rely on language

contained in Exeentive Order No. 11507, 35 Fed. Ree.

2573 (1970), note following 42 U.S.C.A, § 4331 (1973),

as an alternative basis for requiring federal facilities

to comply with the state permit requirement. That

Order has since heen superseded by Executive Order

No. 11752, 38 Fed. Reg. 34793 (1973). note following

42 U.S.CLA, § 4331 (Supp. 1974), which ineludes the

following statement:

Section 1. Policy. It is the purpose of this

order to assure that the Federal Government,

in the design, construction, management, opera-

tion, and maintenance of its facilities, shall pro-

vide leadership in the nationwide effort to pro-

tect and enhance the quality of our air, water,

and land resourees through compliance with

applicable standards for the prevention, eon-

trol, and abatement of environmental pollution

in full cooperation with State and local govern-

ments. Compliance by Federal facilities with

Federal, State, interstate, and local substantive

standards and substantive limitations, to the

same extent that any person is subject to such

standards and limitations, will accomplish the

objective of providing Federal leadership and

cooperation in the prevention of environmental

pollution. In light of the principle of Federal

supremacy embodied in the Constitution, this

order is not intended, nor should it be inter-

preted, to require Federal facilities to comply

with State or local administrative procedures

with respect to pollution abatement and control.

ee ee

es ee ee *

29

The new Executive Order will not support the

plaintiffs’ argument. But it does not foreclose the

argument based on § 118. While the Order seeks to

further “the purpose and policies of the Clean Air

Act,”’ it does not purport to be an authoritative

administrative interpretation of that section” but

is instead an independent order based on the executive

authority of the President over federal employees

“2 TVA contends that EPA has officially interpreted § 118

as not requiring federal facilities to comply with state permit

requirements. TVA refers us to a 1972 letter to it from the

Regional Administrator of EPA and a 1973 memorandum

to federal departments and agencies from the Administrator.

These documents indicatesgn EPA position that federal facili-

ties need not obtain permits, a fact which we have duly noted

in reaching our decision, but becanse they offer no reasoning

to support that position they provide slight guidance. The

1973 memorandum, moreover, contains the following statement :

“(I]f a State’s compliance schedule process is based on a

permit system, I would ask that your facilities provide the

State with the required information on its registration form. I

believe the form should be signed to verify the data, but with

an appropriate disclaimer to make it clear that the facility

is not applying for a permit. (If you have instructed your

facilities to apply for a State permit, the disclaimer would,

of course, be unnecessary.) As you know, there are several

court cases now underway to determine the legality of State

permits for Federal facilities. I believe that while the courts

resolve this issue the Federal government should proceed with

great urgency to ensure that every source in violation of air

quality standards and emission limitations is covered by an

approved compliance schedule and that resources and funds

are marshalled in order to adhere to these schedules.”

The parenthetical statement seems to imply that EPA does

not oppose in principle requiring state permits for federal

facilities, and the reference to cases now under way appears

to indicate an attitude of deferring to the courts on the proper

interpretation of § 118.

ae

\

30

and facilities. It cannot, of course, modify an Act of

Congress, nor does it appear to be an exercise of

the authority granted the President under § 118 to

exempt federal facilities from certain requirements.

Exercise of that authority contemplates a case by

case determination that the exemption is “in the

paramount interest of the United States.’’ It does

not authorize a blanket exemption of all federal

facilities from specified requirements, and we do not

construe Executive Order 11752 as an attempt to

provide such an exemption.”

The judgement of the District Court is reversed

and the cause remanded for further proceedings not

inconsistent with this opinion.

Simpson, Circuit Judge (dissenting) :

With deference, I dissent. I would affirm the district

court on the authority of the Sixth Cireuit decision,

Commonwealth of Kentucky ex rel. Hancock Vv.

\Ruckelshaus, Administrator, ete., et al., 6 Cir. 1974,

{97 F. 2d 1172, affirming Commonwealth of Kentucky

ex vel. Hancock y. Fri, W.D. Ky. 1973, 362 F. Supp.

360.

Without a clearer expression than I discern either

in Section 118 [Title 42, U.S.C. §1857f] or in the

Act’s inconclusive legislative history, I am unwilling

'*The Executive Order itself appears to recognize the

necessity for a case by case determination. Section 5 thereof

delegates to the heads of federal agencies and the Administra-

tor of EPA the power to “identify facilities or uses thereof”

which are exempted from air quality standards and emission

limitations effective under the Clean Air Act and applicable

under Section 4 of the Executive Order. Exercise of this

power of exemption with respect to a facility would render

moot any state permit requirement with respect to that facility

since the necessity for a permit derives from the emission

limitation requirement.

31

to attribute to Congress an implied consent for the

several states to apply state permit requirements to

facilities operated within their borders by agencies

and instrumentalities of the federal government, here

specifically the Department of the Army and the Ten-

nessee Valley Authority. Speculation and conjecture,

however persuasively set forth, should not override

the Supremacy Clause, Art. VI, Clause 2, of the

United States Constitution.

APPENDIX B

United States Court of Appeals for the Fifth Circuit

October Term, 1973

No. 73-2766

D.C. Docket No, CA-72-939

STATE OF ALABAMA AND ALABAMA AtR PoLLUTION

ConTROL COMMISSION, EX REL. WILLIAM J. BAXLey,

ATTORNEY GENERAL, PLAIN TIFFS-APPELLANT

v.

LYNN Seeper, GENERAL MANAGER OF TENNESSEE

VALLEY AUTHORITY, ET AL... DEFENDANTS-APPELLEES

Appeal from the United States District Court for the

Northern District of Alabama

October 14, 1974

Before Goprotp, Smursoxn and Inoranam, Cirenit

Judges

Judgment

This cause came on to be heard on the transcript

of the record from the United States Distriet Court

for the Northern District of Alabama, and was argued

by counsel;

ON CONSIDERATION WHEREOFP, It is now

here ordered and adjudged by this Court that the

judgment of the said District Court in this cause be,

(32°

_— —

and the same is hereby, reversed; and that this cause

be, and the same is hereby remanded to the said

District Court for further proceedings in accordance

with the opinion of this Court;

It is further ordered that defendants-appellees pay

to plaintiffs-appellants, the costs on appeal to be

taxed by the Clerk of this Court.

Simpson, Cireuit Judge, dissenting.

Issued as Mandate:

U8 GOVERNMENT PRINTING OFFICE t978