Motion — Seeber v. Alabama

{IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

NO. 74-851

— — oO

LYNN SEEBER, GENERAL MANAGER OF THE

TENESSEE VALLEY AUTHORITY, ET AL.,

PETITIONERS

V.

STATE OF ALABAMA AND ALABAMA AIR POLLUTION

CONTROL COMMISSION, EX REL. WILLIAM J. BAXLEY,

ATTORNEY GENERAL

—

—

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

RESPONDENTS @

wee Ee

GHB MOTION TO CONSOLIDATE sv7w 74-220

= ——SSS=s_=aanB94"BBa====={a=x

WILLIAM J. BAXLEY

Attorney General of Alabama

HENRY H. CADDELL

Assistant Attorney General of Alabama

Chief, Environmental Protection Division

MYRON H. THOMPSON

Special Assistant Attorney General

FREDERICK S. MIDDLETON, III

Assistant Attorney General

ATTORNEY FOR RESPONDENTS

250 Administrative Building

Montgomery, Alabama 36104

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

NO. 74-851

LYNN SEEBER, GENERAL MANAGER OF THE

TENNESSEE VALLEY AUTHORITY, ET AL..,

PETITIONERS

V.

STATE OF ALABAMA AND ALABAMA AIR POLLUTION

CONTROL COMMISSION, EX REL. WILLIAM J. BAXLEY,

ATTORNEY GENERAL

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

RESPONDENTS’ MOTION TO RECONSIDER AND

GRANT PETITION FOR WRIT OF CERTIORARI

AND MOTION TO CONSOLIDATE

Respondents State of Alabama and the Alabama Air

Pollution Control Commission move this Honorable Court

to reconsider and grant the petition for writ of certiorari

to the United States Court of Appeals for the Fifth Circuit;

and they further move this Honorable Court to consolidate

this case with Kentucky v. Train, No. 74-220.

WILLIAM J. BAXLEY

Attorney General of Alabama

HENRY H. CADDELL

Assistant Attorney General of Alabama

Chief, Environmental Protection Division

2

MYRON H. THOMPSON

Special Assistant Attorney General

FREDERICK S. MIDDLETON, III

Assistant Attorney General

ATTORNEY FOR RESPONDENTS

250 Administrative Building

Montgomery, Alabama 36104

MEMORANDUM IN SUPPORT OF MOTIONS

On September 3, 1974, in the case Kentucky v. Train,

No. 74-220, the Commonwealth of Kentucky petitioned this

Honorable Court for a writ of certiorari to the United States

Court of Appeals for the Sixth Circuit to review the cir-

cuit’s holding and opinion that Section 118 of the 1970 Clean

Air Act Amendments' does not require federal facilities

located in Kentucky to comply with Kentucky’s air pollution

control permit regulation, Kentucky Administrative Regu-

lation, AP-1, Section 5 (1).

On January 6, 1975, petitioners (federal officials) in

this case, Seeber v. Alabama, petitioned this Court for a

writ of certiorari to the United States Court of Appeals for

the Fifth Circuit to review that circuit’s purportedly con-

flicting holding and opinion that Section 118 does require

federal facilities located in Alabama to comply with Ala-

bama’s air pollution control permit requirements as set forth

in Rule 1.12 of the Alabama Air Pollution Control Rules

and Regulations. Respondents State of Alabama and the

Alabama Air Pollution Control Commission in a memoran-

dum filed with this Court offered “no objections to a re-

view in this Court of the opinion of the Fifth Circuit, along

’42 U.S.C. 1857f: Clean Air Act Amendments of 1970, Sec. 118, 84 Stat.

1689.

2

v

with that of the Sixth Circuit and those of any other Cir-

cuits which may come before this Court.”

On March 17, 1975, this Court granted the petition in

the Kentucky case, but as of this date has not ruled on the

petition in the Alabama case. Thus, at this time, the Su-

preme Court has before it for direct review the permit re-

quirement and trial facts from only one state, Kentucky.

Because this Court has decided to review the Kentucky case,

respondents State of Alabama and the Commission now re-

spectfully urge this Honorable Court to grant the petition

for certiorari filed in the Alabama case and to consolidate the

Alabama case with the Kentucky case, on two grounds:

FIRST: The State of Alabama simply and earnestly

wishes to be heard. Alabama is the only state that has

successfully litigated the issue whether Section 118 requires

federal facilities to comply with state air pollution control

permit requirements; and Alabama commenced the present

litigation on October 20, 1972, almost three years ago, and

before Kentucky brought its own action. Therefore, Ala-

bama has developed so far an extensive, winning back-

ground of law and facts which it wishes to present to this

Court.

SECOND: The Kentucky air pollution control permit

regulation, as presented in all its briefs and as considered

by the federal courts below, is substantially different in

scope from the Alabama air pollution contro] permit require-

ments. As a result, the reason for the difference in out-

come between the Fifth and Sixth Circuits may be that the

two circuits considered substantially different state require-

ments.

A

Kentucky Administrative Regulation AP-i, Section 5(1)

is a simple, one sentence regulation, which provides:

“No person shall construct, modify, use, operate, or

maintain an air contaminant source or maintain or al-

low physical conditions to exist on property owned by

or subject to the control of such person, resulting in

the presence of air contaminants in the atmosphere,

unless a permit therefor has been issued by the Com-

mission and is currently in effect.”

Apparently, Kentucky considers subsection (1) of Regulation

AP-1, Section 5 as fully embodying the Kentucky air pollu-

tion control permit regulation. Kentucky states on page 16

of its Petition for Writ of Certiorari filed in the Kentucky

case that ““The Kentucky Plan’ contains, among other re-

quirements related to the administration and implementa-

tion of the Act, a permit requirement. This permit require-

ment, embodied ‘n Section 5 of the Kentucky Administra-

tive Regulation AP-1 . .. is the basic control provision of

the entire ‘Kentucky Plan’.” Kentucky in the petition then

refers the reader to “Appendix C” to the petition where

only a part, subsection (1), of Regulation AP-1, Section 5

is actually reproduced. Similarly, on pages 20 and 21 of

the Brief for Petitioner filed in the Kentucky case, Ken-

tucky refers to and reproduces only subsection (1) for this

Court’s consideretion. Furthermore, apparently as a result

of Kentucky’s reliance on only subsection (1) in the lower

federal courts, both the Sixth Circuit and the United States

District Court for the Western District of Kentucky relied

exclusively on subsection (1) of Regulation AP-1, Section 5

5

as the extent of the Kentucky permit requirement.: See

the opinions of these two Courts on pages 2a and 24a of

the Petition for Writ of Certiorari filed in the Kentucky

case.

* Regulation AP-1. Section 5, in its entirety and as it appears in 1972

when Kentucky filed its lawsuit, is as follows

“(1) No person shall construct, modify, use, operate, or maintain

an air contaminant source or maintain or allow physical conditions

to exist on property owned by or subject to the contro! of such

person, resulting in the presence of air contaminants in the atmos-

phere, unless a permit therefor has been issued by the Commission

and is currently in effect.

“(2) (a) Applications for permits required under Section 5 (1)

hereof shall be made on forms prepared by the Commission for

such purpose and shall contain such information as the Commission

shall deem necessary to determine whether the permit should be

issued.

“(b) Applications for permits shall be signed by the corporate Presi-

dent, his authorized agent; or by an equivalently responsible office:

in the case of organizations other than corporations; or, in other

cases, by the source owner or operator; or, in the case of political

subdivisions, by the highest elected official of such subdivision.

Such signature shall constitute personal affirmation that the state-

ments made in the application are true and complete

“(c) The information requested in the application shall, when spe-

cifically requested by the Commission, include an analysis of the

characteristics, properties, and volurre of the air contaminants taken

under normal operatingg conditions. Failure to supply information

required or deemed necessary by the Commission to enable it to

act upon the permit application shall result in denial of the permit.

“(d) An application for a permit may include one or more air con-

taminant sources provided that all of such air contaminant sources

are contained within one facility. A permittee may apply for an

amended permit to include new air contaminant sources provided

that such new air contaminant sources are contained within the

same facility.

“(3) (a) in considering permit applications, the Commission shall

determine if emission standards or ambient standards are ‘net. In

no case shall a permit to construct or operate be issued where it

can be shown through diffusion calculations or actual! amvient ail

quality monitoring, that the air contaminant source will prevent

or interfere with the attainment of maintenance of state or federal

air quality standards. In cases where no emission standards have

been prescribed by regulation the Commission shall require the

6

Irrespective of the reason or reasons Kentucky may

have for limiting the focus of its litigation to subsection (1)

of Regulation AP-1, Section 5, the subsection is far from

embodying or exemplifying all the measures Alabama con-

siders and has considered as part of its air pollution control

permit requirements. The Alabama permit requirements (as

reproduced in the “Appendix” filed with the Fifth Circuit

and as substantially reproduced in the opinion of the Fifth

Circuit) are complex, comprehensive, lengthy regulations,

specifically covering such matters as compliance schedules,

emission limitations, operating time provisions, record keep-

ing requirements, testing and monitoring provisions, and

use of all available, practical and reasonable methods to prevent

and control air pollution.

“(b) In the event any person or persons alleges themselves under

oath to be presently affected adversely by the air contaminant

source or physical conditions maintained, the Commission shall

afford such persons a hearing to determine whether the permit

shall be issued or denied. Such hearings shall be held in accord-

ance with the provisions of AP-10, Sec. 4 and AP-10, Sec. 30 of these

regulations.

“(4) Permits issued hereunder shall be subject to such terms and

conditions set forth and embodied in the permit as the Commission

shall deem necessary to insure compliance with its standards. Such

terms and conditions may include maintenance and availability of

records relating to operations which may cause or contribute to air

pollution including periodic source or stack sampling of the air

contaminant sources.

“(5) Permits issued hereunder shall tb subject to revocation or

modification by the Commission, pursuant to the provisions of

KRS 224-390, for the following causes:

“(a) Failure to comply with the terms and conditions of the permit;

“(b) Failure to comply with emission standards applicable to the

air contaminant source;

“(c) Failure to comply with the ambient air standards for the area

in which the air contaminant source is located.

“(6) This regulation shall not apply to those air contaminant

sources listed in AP-1, Sec. 4 (4).55

The State of Alabama does not know why Kentucky limited its

reference to subsection (1) in its litigation.

7

emergency episode control provisions. These requireme nts

contained in Rule 1.12 of the Alabama Air Pollution Control}

Rules and Regulations, are as follows:

“1.12 Permits.

“1.2.1 Permits Required.

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

altering or replacing any article, machine, equipment or

other contrivance, the use of which may cause the issu-

ance of or an increase in the issuance of air contami-

nants or the use of which may eliminate or reduce or

control the issuance of air contaminants, shal) first ob-

tain authorization for such construction from the Di-

rector 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

contrivance described in paragraph (a) may be operated

or used, a written permit shall be obtained from the

Director. No permit to operate shall be granted for

any article, machine, equipment or contrivance described

in paragraph (a), constructed or installed without au-

thorization as required by paragraph (a), until the in-

formation required as presented to the Director and such

article, machine, equipment or contrivance is altered,

if necessary, and made to conform to the standards es-

tablished by the Commission.

“(2) Any article, machine, equipment or other con-

8

trivance described ir paragraph (a) which is presently

operating (or which is not presently operating but which

is capable of being operated) without a Permit to Op-

erate, may continue to operate (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 application of this

Part even though it is exempt from the system accord-

ing to Sections 1.12.1 and 1.12.2 of this Part. The

operator or builder of such an article, a machine, equip-

ment or other contrivance may appeal the Director’s

classification to the Commission, which shall overrule

the Director only if it is shown that he acted arbitrarily

and contrary to the purposes of the Act.

“c) Display of Permit to Operate. A person who has

been granted a Permit to Operate any article, machine,

equipment, or other contrivance shall keep such Permit

under file or on display at all times at the site where

the article, machine, equipment, or other contrivance is

located and will make such a permit readily available

for inspection by any and all persons who may request

to see it.

“1.12.2 Exemptions. From time to time the Director

may specify certain classes or sizes of articles, machines,

cquipment, or other contrivances which would normally

be subject to the requirement to obtain Permits to Op-

9

erate or Construct, as being exempt from the requirement

to obtain such permits. Exempt sources are subject in

every other way to these rules and regulations.

“1.12.3 Transfer. A Permit to Construct or Operate

shall not be transferable whether by operation of law

or otherwise, either from one location to another, from

one piece of equipment to another, or from one person

to another.

“1.12.4 Applications. Every application for a Permit

to Construct or Operate required under Section 1.12.1

shall be filed in the manner and form prescribed by the

Director and shall give all the information necessary

to enable the Director to make the determination re-

quired by Section 1.12.8.

“1.12.5 Cancellation of Applications. A Permit to Con-

struct shall expire and the application shall be canceled

two years from the date of issuance of the Permit to

Construct if the construction has not begun,

“1.12.6 Action of Application. The Director shall act,

within a reasonable time, on an application for Permiy

to Construct, Permit to Operate and shall notify the

applicant in writing of its approval, conditional approva!

or denial.

“1.12.7. Provision of Sampling and Testing Facilities.

A person operating or using any article, machine, equip-

ment 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.

10

“1.12.8 Standards for Granting Applications.

(a) The Director shall deny a permit except as pro-

vided by Section 1.12.9, if the apphcant does not show

that everv article, machine, equipment or other contri-

vance, the use of which may cause the issuance of air

contaminants, is so designed, controlled, or equipped

with such air pollution control equipment, that it may

be expected to operate without emitting or without caus

ig to be emitted air contaminants in violation of these

rules and regulations.

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

does not present, in writing, a plan whereby the emis-

sion of air contaminants by every article, machine,

equipment, or other contrivance described in the permit

application, will be reduced during periods of an Air

Pollution Alert, Air Pollution Warning, and Air Pollu-

tion Emergency in accordance with the provisions of

Chapter 2.

“(c) Before a Permit to Construct or Permit to Op-

erate is granted, the Director may require the appli-

cant to provide and maintain such facilities as are neces-

sary for sampling and testing purposes in order to secure

information that will disclose the nature, extent, quan-

tity or degree of air contaminants discharged into the

atmosphere from the article, machine, equipment or

other contrivance described in the Permit to Construct

or Permit to Operate. In the event of such a require-

ment, the Director shall notify the applicant in writing

of the required size, number and location of the samp-

ling platform; the access to the sampling platform; and

the utilities for operating the sampling and testing

equipment.

11

“(d) The Director may also require the applicant to

install, use and maintain such monitoring equipment or

methods ; sample 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.

“(e) Before acting on an application for Permit to

Construct or Permit to Operate, the Director may re-

quire the applicant to furnish further information or

further plans or specifications.

“(f) In acting upon a Permit to Operate, if the Di-

rector finds that the article, machine, equipment or other

contrivance has been constructed not in accordance with

the Permit to Construct, and if the changes noted are

of a substantial nature in that the amount of air con-

taminants emitted by the article, machine, equipment

or other contrivance may be increased, or in that the

effect is unknown, then he shall deny the Permit to Op-

perate. The Director shall not accept any further appli-

cation for a Permit to Operate. The Director shall not

accept any further application for a Permit to Operate

until the article, machine, equipment or other contrivance

has been reconstructed in accordance with the Permit to

Construct, or until the applicant has proven to the satis-

faction of the Director that the change will not cause an

increase in the emission of air contaminants.

“g) The Director shall deny a Permit to Construct

where he determines that the construction and opera-

tion of such source will interfere with attaining or main-

taining any primary or secondary stendard established

by Section 1.6.1 or will allow significant deterioration

of existing air quality.

12

“(h) In granting any Permit to Operate, the Directer

may allow, as a condition of such permit, for the inter-

mittent discharge of air contaminants, during startup.

shut down, rate change or load change, in excess of the

limitations specified in these rules and regulations 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 Permit to Operate subject to conditions which will

bring the operation of any article, machine, equipment

or other contrivance within the standards of Section

1.12.8, in which case the conditions shall be specified

in writing. Commencing werk under such a Permit to

Construct or a Permit to Operate shall be deemed ac-

ceptance of all the conditions specified. The Director

shall issue a Permit to Construct or a Permit to Op-

erate with revise! conditions upon receipt of a new

application, if the applicant demonstrates that the ar-

ticle, machine, equipment or other contrivance can op-

erate within the standards of Section 1.12.8 under the

revised conditions.

“(b) A Conditional Permit may allow an article, ma-

chine, 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

~—=—

18

submit progress reports to the Director according to the

schedule established by the Conditional Permit. The

Director may further 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.

“(c) A Conditional Permit that allows any new article,

machine ,equipment or contrivance to operate in

violation of the requirements of Section 1.12.3 may not

be granted for a period of time greater than one year.

including all renewals.

“(d) No Conditional Permit issued under this Section

for any existing article, machine, equipment or con-

trivance may be granted for a period of time longer

than the greater of the following periods:

(1) The period from the granting of the permit

to a date three years after the date of initial adoption

of an applicable rule or regulation.

(2) The period from the granting of the permit

to a date three years after the date the Administrator

of the U. S. Environmental Protection Agency approves,

in accordance with Section 110 of the Federal Act, such

applicable rule or regulation as a part of an implemen-

tation plan (or any revision thereof).

“1.12.10 Temporary Permit to Operate. Upon appli-

cation for a Permit to Operate by a new facility, the

Director shall, within a reasonable period time, dis-

patch an inspector to the facility in question. If the

inspector determines that the facility has been con-

structed according to the specifications as set forth un-

14

der the Permit to Construct, or else that any changes

to the facility would reduce or effect to an unsubstantia!

degree that quantity of air contaminants emitted by

the facility, and if a reviewing officer of the Division

agrees with this conclusion, then the Director shall issue

a temporary Permit to Operate which will remain in

force until an official inspection of the facility under

actual operating conditions can be made and the results

reviewed, or until the Temporary Permit to Operate is

suspended or revoked by the Director. The Director may

issue a Temporary Permit to Operate without an in-

spection if the applicant fulfills the following require-

ments:

“(a) The application for a Permit to Construct is filled

out and countersigned by a Professional Engineer fa-

miliar with air pollution control as it relates to the

equipment under application.

“(b) Upon completion of the construction, a Profes-

sional Engineer familiar with the Permit to Construct

submits a letter to the Director, signed and sealed with

his professional stamp, testifying that the construction

under application has been completed and is in accord-

ance with the specification as set down in the Permit

to Construct. The Director, is empowered to reject the

testimony of the Professional Engineer if the Director

decides that the Professional Engineer’s qualifications

are insufficient to allow him to accurately and com-

pletely assess the equipment in question. A Professional

Engineer may appeal any such judgment to the Com-

mission.

“1.12.11 Denial of Application. In the event of denial

of a Permit to Construct or Permit to Operate, the Di-

15

rector 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

the written acknowledgement of the persons served or

affidavit of the person making the service. The Direc-

tor shall not accept a further application ualess the ap-

plicant 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 pe-

tition the Commission, 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 applicable provisions of these rules and regulations

except where violations are specifically allowed in ac-

cordance with a Conditional Permit issued under Sec-

tion 1.12.9.”

Also of unquestionable interest to this Court is the thirty-

four page Alabama air pollution control permit application

reproduced in the “Appendix” filed below with the Fifth

Circuit. .

The Sixth Circuit, relying upon subsection (1) of Regu-

lation AP-1, Section 5, reached the general and critical con-

clusion that “a permit has absolutely nothing to do with air

quality.” For reasons which follow, this conclusion is not

logically applicable to the Alabama permit requirements.

16

Alabama’s permit requirements, on their face, are the

primary measures for attaining and maintaining air quality

within the state. This observation is supported by consider-

ing the requirements against a background of the history of

the 1970 Clean Air Act Amendments, the position of the

states under the Amendments, and the response of the State

of Alabama to the Amendments. The congressional history

of the Amendments was summarized by Justice Rehnquist,

speaking for this Court, in Train v. National Resources De-

fense Council, Inc., (1975) — U.S. —, 95 S.Ct. 1470, — L.Ed.

2d—-:

“Congress initially responded to the problem of air

pollution by offering encouragement and assistance to

the states. In 1955 the Surgeon General was authorized

to study the problem of air pollution, to support re-

search, training and demonstration projects, and to pro-

vide technical assistance to state and local governments

attempting to abate pollution. 69 Stat. 322-323. In

1960 Congress directed the Surgeon General to focus his

attention on the health hazards resulting from motor

vehicle emissions. 74 Stat. 162. The Clean Air Act

of 1963, 77 Stat. 392-401, authorized federa! authori-

ties to expand their research efforts, to make grants

to state air pollution control agencies, and also to inter-

vene directly to abate interstate pollution in limited cir-

cumstances. Amendments in 1965, 79 Stat. 992-996, and

in 1966, 80 Stat. 954-955, broadened federal authority

to control motor vehicle emissions and to make grants

to state pollution control agencies.

“The focus shifted somewhat in the Air Quality Act of

1967, 81 Stat. 485. It reiterated the premise of the

earlier Clean Air Act ‘that the prevention and control

of air pollution at its source is the primary responsibility

17

of States and local governments.’ Ibid. Its provisions,

however, increased the federal role in the prevention of

air pollution, by according federal authorities certain

powers of supervision and enforcement. But the States

generally retained wide latitude to determine both the

air quality standards which they would meet and the

period of time in which they would do so.

“The response of the States to these manifestations of

increasing congressional concern with air pollution was

disappointing. Even by 1970, state planning and im-

plementation under the Air Quality Act of 1967 had

made little progress. Congress reacted by taking a stick

to the States in the form of the Clean Air Amendments

of 1970, Pub. L. 91-604, 84 Stat. 1676, enacted on De-

cember 31 of that year. These Amendments sharply

increased federal authority and responsibility in the con-

tinuing effort to combat air pollution. Nonetheless, the

Amendments explicitly preserved the principle that,

‘Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

comprising such State. .. .’ $107(a) of the Clean Air Act,

as added, 84 Stat. 1678, 42 U.S.C. §1857c-2(a). The dif-

ference under the Amendments was that the States were

no longer given any choice as to whether they would meet

this responsibility. For the first time they were re-

quired to attain air quality of specified standards, and

to do so within a specified period of time.

“The Amendments directed that within 30 days of their

enactment the Environmental Protection Agency should

publish proposed regulations describing national quality

standards for the ‘ambient air,’ which is the statute’s

term for the outdoor air used by the general public.

After allowing 90 days for comments on the proposed

18

standards, the Agency was then obliged to promulgate

such standards. §109(a)(1) of the Clean Air Act, as

added, 84 Stat. 1679, 42 U.S.C. §1857c-4(a)(1). The

standards were to be of two general types: ‘primary’

standards, which in the judgment of the Agency were

‘requisite to protect the public health,’ §109(b)(1), and

‘secondary’ standards, those that in the judgment of

the Agency were ‘requisite to protect the public welfare

from any known or anticipated adverse effects associated

with the presence of such air pollutant in the ambient

air.” §109(b)(2).” Id., 95 S.Ct. at 1474.

Section 110 of the Amendments is the primary provision

requiring that states attain specified air quality standards.

Section 110 required, in the words of this Court, that:

“Within nine months after the Agency’s promulgation

of primary and secondary air quality standards, each of

the 50 States .. . submit to the Agency a plan designed

to implement and maintain such standards within its

boundaries. (Cite omitted.) The Agency was in turn

required to approve each State’s plan within four months

of the deadline for submission, if it had been adopted

after public hearings and if it satisfied eight general con-

ditions set forth in §110(a)(2). Probably the principal

of these conditions, and the heart of the 1970 Amend-

ments, is that the plan provide for the attainment of the

national primary ambient air quality standards in the

particular State ‘as expeditiously as practicable but. . .

in no case later than three years from the date of ap-

proval of such plan.’ §110(a)(2)(A). In providing

for such attainment, a State’s plan must include ‘emis-

sion limitations, schedules, and timetables for compliance

with such limitations’; it must aiso contain such other

measures as may be necessary to insure both timely at-

19

tainment and subsequent maintenance of national am-

bient air standards. §110(a)(2)(B).” Jd., 95 S.Ct. at

1475.

These other measures included provisions “for establish-

ment and operation of appropriate devices, methods, sys-

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

analyze data on ambient air qualities,”” and “necessary as-

surances that the state will have adequate personnel, funding,

and authority to carry out such implementation plans.” Sec-

tion 110 (a) (2)(B), (C) and (F). In furtherance of and in

compliance with Section 110, Alabama promulgated and sub-

mitted to the Administrator of the Agency an implementation

and enforcement plan specifying the manner in which na-

tional ambient air quality standards would be achieved and

maintained in the State of Alabama. The Alabama plan

was approved by the Agency Administrator in Federal Reg-

ister, Vol. 37, No. 105, pages 10847 and 10848, and thereby

became operative under federal and state law.

At the heart of the Alabama plan is “Rule 1.12, Permits,”

which generally implements the congressional mandate in

Section 110. The working mechanics of Rule 1.12 are sum-

marized in the following affidavit by James W. Cooper, Di-

rector, Alabama Air Pollution Control Commission:

“The regulations prohibit the operation or use of equip-

ment in Alabama, which would result in the issuance of

air contaminants, if the owner or operator does not

possess a permit issued by the Director. The regulations

specify the conditions under which application for per-

mits must be made and require the filing of an applica-

tion form which includes specific information identifying

the equipment or machine to be permitted. . . . The per-

mit, when issued, will not be used merely as an instru-

20

ment for “registering” or “cataloging” sources of pollu-

tion in Alabama. On the contrary, the permit consti-

tutes the heart of the Commission’s administrative and

enforcement program, for the permit will spell out not

only specific emission limitations that must not be ex-

ceeded, but also such other previsions as operating time,

record keeping requirements, testing and monitoring

provisions, emergency episode control provisions, and

most importantly, compliance schedules. At this point,

I must emphasize that the compliance schedule is that

part of the permit which would be used to insure that

the owner or operator of any non-complying source would

reach compliance status within the time period required

by State and Federal law. The dates for the compliance

schedule which would be a part of the permit would have

been applied for specifically by the applicant in accord-

ance with the forms earlier described. Each permit form

provides for a signature block by which the applicant cer-

tifies that the applicant’s plans will meet emission limi-

tations specified by the Commission’s rules and regula-

tions. Consequently, the compliance schedule as well

as the rest of the permit and application, constitutes a

binding, enforceable commitment to meet Alabama’s Air

Pollution Control Rules and Regulations. It can be seen

that the permit system administration by any agency

goes to the heart of compliance with Alabama’s State

statute.”

In summary, the relationship between the Amendments

and Alabama’s permit requirements is concentric: at the

center of the Amendments is Section 110; at the center of

Section 110 are the state implementation plans; and at the

center of the Alabama implementation plan are the Alabama

permit requirements, Rule 1.12.

21

?

Therefore, should the Sixth Circuit’s general conclusion

(that “a permit has absolutely nothing to do with air qual-

ity”) and corresponding holding (that federal facilities need

not comply with state permit requirements) be applied to

Alabama’s Rule 1.12, not only would the permit requirements

contained in Rule 1.12 be inapplicable to federal facilities, but

Section 110 would be inapplicable to federal facilities, for

Rule 1.12 is the primary provision for implementing the con-

gressional mandate in Section 110; furthermore, contrary to

the long history of the 1970 Clean Air Act Amendments, the

State of Alabama would again be powerless to attain and

maintain national ambient air quality standards in those

regions where federal facilities are located.

B.

Another difficulty with the Sixth Circuit’s opinion is

the application to Rule 1.12 of the “substantive-procedural”

distinction fashioned by that court. The Court opined that

federal facilities are required by Section 118 to comply with

state substantive requirements, but not with state procedural

requirements. The Court then characterized Kentucky’s per-

mit regulation as procedural with the genera] conclusion

that “a permit has absolutely nothing to do with air quality.”

and observed that:

“Substantive requirements of implementation plans (e g.

emission standards and compliance schedules) do, and it

is those ‘requirements’ which are essentia] to the im-

provement of air quality and are, we believe, the ‘require-

ments’ which are essential to the improvement of air

quality and are, we believe, the ‘reyuirements’ respecting

control and abatement of air pollution to which Section

110 of the Clean Air Act refers.”

22

The difficulty with applying this substantive-procedural

distinction to the Alabama permit requirements is manifest:

Rule 1.12 contains such requirements as emission standards

and compliance schedules, which are given as specifje exam-

ples of substantive requirements in the above quote.

C.

Finally and perhaps most important, the actions so far

of federal officials in Alabama undermine fully the general

conclusion of the Sixth Circuit that “a permit has absolutely

nothing to do with air quality.” At the time Alabama filed

this action federal officials, operating facilities emitting air

pollutants, had not submitted to the Alabama Air Pollution

Control Commission all the information required by Rule 1.12

and the facilities were not in compliance with Commission

regulations; today, at the time of the filing of these motions,

the officials have still not submitted all the information re-

quired by Rule 1.12, nor are their facilities in compliance

with Commission regulations. But without the authority to

enforce Rule 1.12, including the information gathering and

enforcement authority therein, Alabama remains weaponless

to bring these facilities into compliance, contrary both to the

letter and spirit of Section 118. Therefore, the Alabama

permit requirements, or in this case the lack of them, have

had everything to do with air quality.

CONCLUSION

If this Court is to reach a broad, uniform cannon of

interpretation of the application of Section 118 to state air

pollution control permit requirements, it should consider as

nearly as possible the full sectrum of varying permit require-

ments as understood and defined by the states. Considered

together the Alabama and Kentucky cases, with their vary-

23

ing requirements, their varying approaches to these require-

ments, and their varying facts, could serve as exemplar

threads from which to weave a broad, visible, uniform fabric

of interpretive law on the application of Section 118 to state

air pollution control permit requirements.

Respectfully submitted,

WILLIAM J. BAXLEY

Attorney General of Alabama

HENRY H. CADDELL

Assistant Attorney General

of Alabama

Chief, Environmental Protection

Division

MYRON H. THOMPSON

Special Assistant Attorney General

FREDERICK S. MIDDLETON, III

Assistant Attorney General

Attorneys for Respondents

250 Administrative Building

Montgomery, Alabama 36104