Amicus Brief — EPA v. California Ex Rel. State Water Resources Control Bd.

PEOPLE OF a orate’ OF CALIFORNIA,

sare bag. 8 RESOURCES CONTROL

ND STATE OF WASHINGTON, et al.,

_ Petitioners-Appeliees,

ix ea

vat ‘On Appeal From The Court of Appeals

__Of The Unked States For The Ninth Circuit

BRIEF OF THE STATE OF MICHIGAN AS AMICUS

PORT OF THE STATE OF CALIFORNIA

pane STARE Of OF WASHINGTON

ace “aan J KELLEY

“Attorney General

ark “> State of Michigan

% : Robert A. Derengoski

» Solicitor General

Stewart H. Freeman

> Assistant Attorney General

"Assistant nen General

Se eee, ee Suite 630

i

TABLE OF CONTENTS

Gt MEE cs wapencancnscasecaqescecceess

Statement of the Question Involved ................

EEE EPPO T POT TTT TT TTT TT

ER ERR RG ee EL A ea

1. THE FEDERAL GOVERNMENT IS A

MAJOR POLLUTER ..................--

Il. DESPITE THE SUPREMACY DOCTRINE,

CONGRESS MAY EXPRESSLY Ab-

THORIZE FEDERAL AGENCY COM-

PLIANCE WITH STATE AND LOCAL

tl. UNDER THE CLEAN AIR ACT OF 1970 AND

THE FEDERAL WATER POLLUTION

CONTROL ACT AMENDMENTS OF

1972, CONGRESS HAS WAIVED THE

IMMUNITY OF FEDERAL FACILITIES

AND PLACED THEM ON A PAR WITH

PRIVATE POLLUTERS IN TERMS OF

COMPLIANCE WITH ALL STATE AND

LOCAL POLLUTION CONTROL RE-

QUIREMENTS INCLUDING PERMIT

PRREAEPEPEED cc ccvcccesesccccecccescese

A. Section 118 Of The Clean Air Act of

1970 Mandates That Federal Agencies

Comply With All State And Local

Requirements Respecting The Control

And Abatement Of Air Pollution ..... 11

B. The Federal Water Pollution Control Act

Amendments Of 1972 Also Dictates That

Federal Agencies Comply With All State

And Local Requirements Respecting The

Control And Abatement Of Water

Peckdkeccderecevesedsseiouens 14

C. The Critical Statutory Phrase, *“Comply

With Requirements Respecting The Con-

trol And Abatement Of Pollution To The

Same Extent Any Person Is Subject To

Such Requirements,’ Should Be Inter-

preted To Include Compliance With

State And Local Permit Procedures By

POD FRIIS oc icccccccccccceccecs 16

IV. FEDERAL AGENCIES SHOULD NOT BE

ALLOWED TO CIRCUMVENT THE

PERMIT PROCESS WHICH IS THE

FOUNDATION FOR AN EFFECTIVE

STATE AND LOCAL POLLUTION

CONTROL PROGRAM .............545. 18

ACEI cccccccccccccsccccccescccsseoecees 20

POOT NOTES occ cccccccccccccccccccccccccccceces 21

iil

INDEX OF AUTHORITIES

CASE AUTHORITY

Balt Nat Bank v State Tax Comm

297 US 209: 80 LE 586: 56 S Ct 417 (1936)......

Case of Proclamations

Te. Cae GaP SE cobacecenccastaceseseennngeséeus

Markham v Cabell

326 US 404: 90 L Ed 165: 66 S Ct 193 (1945)....

Maun v United States

oe | | fe 3 = ry Ty

Mayo v United States

319 US 441; 87 LE 1504; 63 S Ct 1137 (1943)....

McCulloch v Maryland

Oe Be 6660dn06cedeeddsseses 4b4eesser

Pacific Coast Dairy Inc v. Dept of Agric of Calif-

318 US 285, 87 LE 761: 63 S Ct 628 (1943)......

STATUTORY AUTHORITY

Atomic Energy Act of 1954, Section 271,

ip Gr MY SaSbbhonsebencsduuneesséabeecedanc«

Clean Air Act of 1970, 42 USC 1857 et seq

> & YS | Sn e Spee a Ame

Ue St Ps coca cosneuasdednaeeduaaacen es

Te Cs Pe ccscccéubesubuasasacksabens as

op Gp Ee Decbatesbcadvctcudesctecaséeaneute

21

10

10

—_—_—_— _ -_

vw iv tv

iv

Federal Water Pollution Control Act

Amendments of 1972, 33 USC 1251 et seq

== FD USL 1250 BD). ncccccvcccccccccccsccesccees 14

me FD UE BFE tocccccccvcavcesdcvecnctesevccess 2. 15

am FD Ue CPG cc ccvccdecccecccvcccssccosdeee 14

=> FD UGE ISGRE) . cc cccccccccsvcenccccosercoces 15

Michigan Water Resources Act, Section 7,

RECA: SED.7s REA BFE ccccccccccvccsccccecees 15

ADMINISTRATIVE AUTHORITY

Mich Administrative Code

ame Ge Ge Oe BE no dc c56cek ccs eesesesénns 13

om GEy GRD Oe Bee 04. occkcncndsceseeveeseas 13

MISCELLANEOUS AUTHORITY

Columbia Law Review, Vol 47, 1943 ..............4.. 17

Congressional Record, Vol 116, page 32920 (1970) .. 7

Council of Environmental Quality

— Second Annual Report (NOTIN) 2.0.0.6 6 66 ccc ee ee 8

— Fourth Annual Report (V973)...........044: wee: ae

Environment Reporter

am Wale G, FE. Ge e050 beac cescescncescsgesessanes 15

om WES G, FRA. OF ccccunceccsceneccsssendeoncenes 15

Environmental Protection Agency, Office of Air

Programs, Real Property Owned by the Federal

Government in the State of Michigan (June, 1971) 21

Vv

General Services Administration, Inventory Report -

Real Property Leased to the United States

Throughout the World, (dune 3, 1973)........ i 21

Holmes, Collected Legal Papers risdbeet odes eb ckes 16

es GE So bcuccatecce Gbbececveuestthecvceesets 16

The Boston Globe, January 1, 1971 ............04.. 11

Zwick and Benstock, Water Wasteland, 1971 ....... 21

| —1-

| STATEMENT OF THE QUESTION INVOLVED

WHETHER FEDERAL AGENCIES MUST OBTAIN

AND COMPLY WITH STATE WATER POLLUTION

CONTROL PERMITS AS MANDATED BY THE

FEDERAL WATER POLLUTION CONTROL ACT

| AMENDMENTS OF 1972 SINCE CONGRESS

| WAIVED FEDERAL IMMUNITY AND SINCE AN

EFFECTIVE NATIONWIDE POLLUTION CONTROL

PROGRAM REQUIRES AN ALL ENCOMPASSING

PERMIT PROGRAM?

The Federal Government, Appellee says **No.”

The Court of Appeals says **Yes.”’

The States of California and Washington, Appellants,

say “Yes.”

The State of Michigan, Amicus Curiae, says “Yes.”

=

STATUTE INVOLVED

Section 313 of the Federal Water Pollution Control Act,

amendments of 1972, 86 Stat. 875, 33 U.S.C. 1323, provides

as follows:

‘“Each department, agency, or instrumentality of the

executive, legislative, and judicial branches of the Federal

Government (1) having jurisdiction over any property or

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

may result, in the discharge or runoff of pollutants shall

comply with Federal, State, interstate, and local require-

ments respecting control and abatement of pollution to the

same extent that any person is subject to such require-

ments, including the payment of reasonable service

charges. The President may exempt any effluent source of

any department, agency, or instrumentality in the execu-

tive branch from compliance with any such a requirement

if he determines it to be in the paramount interest of the

United States to do so; except that no exemption may be

granted from the requirements of section 306 or 307 of this

Act. No such exemptions shall be granted due to lack of

appropriation 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 requested appropriation. Any exemption

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

additional exemptions may be 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 such exemption.”

iia ite

INTEREST OF THE AMICUS

The People of the State of Michigan comprise more than

8.875.000 residents as of the 1970 census. The area of the

State of Michigan includes more than 96,720 square miles.

The State of Michigan is vitally concerned with matters of

environmental quality affecting its air, land, and water and in

this regard has enacted comprehensive legislation.

Federal agencies occupy 1,438 site locations throughout

the State of Michigan.' This represents 3.4% of the annual

rental of real property to the federal government in the

United States.?

A recent survey by the Environmental Protection Agency

enumerated 290 locations in Michigan that would be affected

by a ruling requiring federal facilities to obtain state and local

pollution permits.’ Included in this listing are 9 major

installations of more than 1,000,000 square feet.‘

Michigan believes that federal installations within its

borders are and can become significant sources of pollution

which must be controlled. Consequently, Michigan views the

outcome of this litigation with profound concern. We are

convinced a ruling of this Court which exempts federal

facilities from state and local pollution permits would have a

deleterious effect on the residents and the natural resources

of the State of Michigan.

The People of the State of Michigan, therefore, respect-

fully file this brief as an amicus curiae pursuant to Rule 42 of

the Rules of this Court.

_ =

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO: 74-1435

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents-A ppellants,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

EX REL STATE WATER RESOURCES CONTROL

BOARD AND STATE OF WASHINGTON, et al.,

Petitioners-A ppellees.

BRIEF OF THE STATE OF MICHIGAN AS AMICUS

CURIAE IN SUPPORT OF THE STATE OF CALIFORNIA

AND THE STATE OF WASHINGTON.

STATEMENT OF THE CASE

The Federal Water Pollution Control Act Amendments of

1972 established a program for reducing and eliminating

pollutants discharged into the waters of the United States.

The heart of the water quality control program was the

issuance of permits, called the National Pollutant Discharge

Elimination System (“‘NPDES"’). States may obtain author-

ity for issuing NPDES permits program after obtaining the

approval of the Administrator of the Environmental

Protection Agency.

The State of California submitted its proposed permit

program on February 15, 1973 to the Administrator of the

—_ wn

Environmental Protection Agency. The Administrator ap-

proved the California plan, but exempted discharges of

federal facilities on May 14, 1973.

Similarly, the State of Washington submitted its program

proposal on September 14, 1973. The Washington permit

program was approved by the Administrator on November

14, 1973 also with an exemption for federal facilities.

Both California and Washington filed a petition for review

of the Administrator's disapproval of the States’ permit

program as applied to federal facilities. (October 23, 1973

and October 24, 1974 respectively.)

In an Opinion issued on February 13, 1975, the United

States Court of Appeals for the Ninth Circuit held that

federal discharges within a state’s jurisdiction must comply

with state permit programs. [511 F. 2d 963 (9th Cir, 1975).]

This Court subsequently granted a writ of certiorari.

It should be noted, furthermore, that this case is

interrelated with the decision of the Sixth Circuit in

Kentucky v Ruckelhaus, 497 F 2d 1172 (6th Cir, 1974), cert

granted sub nom Kentucky v Train, No 74-220, (March 17,

1975) which involves the question of federal compliance with

state and local air pollution permit requirements.

a

SUMMARY OF THE ARGUMENT

The federal government is a major polluter. The myriad of

actual and potential pollution problems from federal facilities

compels an effective response.

Reacting to the problem of federal facilities’ pollution,

Congress expressly waived the historic immunity granted to

federal agencies from state regulation. Specifically, Congress

mandated that federal facilities comply with state and local

pollution control permits as if they were private persons.

This integration of federal facilities into state and local

permit system recognizes the importance of a permit system

to identify pollution and to adapt an effective control

technology to the problem.

_—

ARGUMENT

I.

THE FEDERAL GOVERNMENT IS A MAJOR POLLUTER.

‘. .. Federal agencies have been notoriously ,

laggard in abating pollution... We cannot

expect individuals and businesses to abate

pollution if their government continues to

pollute...

— United States Senator William B. Spong, Jr.

of Virginia, 116 Cong Rec 32920 (1970).

In the area of water pollution, the federal government has

produced a host of pollution nightmares. Federal agencies

have brought the nation “red water’ (caused by an

unusuable isomer of TNT), photographic processing wastes,

chemical and biological warfare pollutants, aircraft washing

wastes, heavy silting from road construction, pesticide and

herbicide concentrations, salinity from unwarranted irriga-

tion projects and deoxygenated water from federal dams.‘ In

1968, the Department of the Defense discharged more than

335 million gallons of human wastes per day, of which

25-30% was given less than secondary treatment.* Each year,

the government dredges up and relocates 7 million cubic

yards of polluted spoil from the Great Lakes.’

Cataloging federal air pollution is somewhat more elusive

to detail; yet nonetheless, it is a significant problem. The

lack of integration of federal air pollutio:. sources into permit

programs, undoubtedly, accounts for the inability to

enumerate precisely the problem. Some information is

available, however.

In its Petition for A Writ of Certiorari to this Court, the

federal government noted that there are more than 1,800

major and medium installations in the Ninth Circuit alone

which might be affected by a decision requiring federal

installations to seek state pollution permits. (Page 8 of the

Petition.) Nationwide, the problem is potentially staggering.

As of 1973, there were a total of 49,008 federal installation

locations.* While not all of these sites are sources of

pollution, in particular air pollution, a significant number

certainly would qualify.

Federal pollution is not illusory. Note the conclusion one

study found in relation to the federal government:

“In the face of our environmental crisis, an aroused

public's natural inclination is to turn to the Federal

government for help. Yet the alarming truth is that the

Federal government is one of the worst polluters in the

U.S. Like a huge, grimy hand, its environmental

exploitation stretches from Alaska, where giant Air Force

bases before their still relatively pristine surroundings, to

West Point, New York, where the U.S. Military Academy

dumps more than a million gallons a day of poorly treated

effluent into the Hudson River.’

.In- advising the President on the state of national

environment, the Council on Environmental Quality has

similarly stated,

“While progress is being made in cleaning up federal

facilities, some individual facilities are still major polluters.

Many of these are on military installations. As in the case

of industrial pollution, management attitude is the critical

ingredient in complying with environmental standards.”

{2d Annual Report of the Council of Environmental

Quality (Aug. 1971)]

—

There can be no doubt as to the seriousness of the

pollution problem at federal installations. Continued pollu-

tion at these facilities undermines the credibility of

governmental efforts to abate pollution in the private sector.

We submit that a major step towards restoring the

government's credibility and in protecting our nation’s

natural resources would be to integrate federal installations

into state and local pollution permit systems. Consequently,

we now turn our attention to this question.

DESPITE THE SUPREMACY DOCTRINE, CONGRESS

MAY EXPRESSLY AUTHORIZE FEDERAL AGENCY

COMPLIANCE WITH STATE AND LOCAL LAWS.

“The King hath no prerogative but that which

the law of the land allows him.”

— Coke, Case of Proclamations 12 Rep 74, 76

(1611). f

This Court has long interpreted the Supremacy Clause of

Article VI of the United States Constitution as authority for

the principle that the federal government is immune from

state and local regulation and taxation. In the historic case of

UcCulloch v Maryland, 4 Wheat 316 (1819), Chief Justice

Marshall wrote:

“. .. the states have no power, by taxation or otherwise,

to retard, impede, burden, or in any manner control the

operations of the constitutional laws enacted by Congress

to carry into execution the powers vested in the general

government. This is, we think, the unavoidable consequ-

ence of that supremacy which the constitution has

declared."* [4 Wheat 316, 435 (1819)]

— {9 —

The language of McCulloch certainly establishes federal

government immunity from a broad range of local and state

licensing and inspection laws. Yet, the immunity granted to

federal agencies is not absolute.

Congress may affirmatively subject federal governmental

instrumentalities and property to state and local regulation.

As stated by this Court in Vayo v United States, 319 US

441, 446 (1943), “it lies within Congressional power to

authorize regulation, including taxation, by the state of

federal instrumentalities..""* The doctrine of immunity as

derived from the Supremacy Clause may be limited and

waived by Congressional action.

A relevant example of a Congressional waiver of federal

sovereign immunity is the case of Maun v United States, 347

F 2d 970 (9th Cir, 1965). In Vaun, the Court of Appeals held

that section 271 of the Atomic Energy Act of 1954, 42 USC

2018, required the Atomic Energy Commission to accede to

any federal, state. or local regulation with respect to the

generation, sale. or transmission of electric power.

Since Congress may expressly authorize federal agency

compliance with state and local regulations, it is crucial to

examine what duties are affirmatively imposed by Congress

on federal facilities and agencies in the area of state and local

regulation of pollution. This fundamental interpretive ques-

tion is the focus of our attention now.

UNDER THE CLEAN AIR ACT OF 1970 AND THE

FEDERAL WATER POLLUTION CONTROL ACT

AMENDMENTS OF 1972, CONGRESS HAS WAIVED THE

‘IMMUNITY OF FEDERAL FACILITIES AND PLACED

THEM ON A PAR WITH PRIVATE POLLUTERS IN

TERMS OF COMPLIANCE WITH ALL STATE AND

LOCAL POLLUTION CONTROL REQUIREMENTS IN-

CLUDING PERMIT PROCEDURES.

The central issue of this litigation is whether federal

agencies must obtain and comply with water quality control

permits issued by the states under the Federal Water

Pollution Control Act Amendments of 1972. [33 USC 1251,

et seq.] The question of whether federal agencies must

comply with the Clean Air Act of 1970, 42 USC 1857, et seq,

and obtain state permits is so interrelated that we will

address both questions. We hope to note relevant distinc-

tions, however, between the air and water control programs.

A. SECTION 118 OF THE CLEAN AIR ACT OF 1970

MANDATES THAT FEDERAL AGENCIES COMPLY

WITH ALL STATE AND LOCAL REQUIREMENTS

RESPECTING THE CONTROL AND ABATEMENT

OF AIR POLLUTION.

‘(The Clean Air Act of 1970 represents) the

toughest, most far-reaching environmental legis-

lation ever enacted by Congress.”’

— Senator Edmund S. Muskie, as quoted in The

Boston Globe, January |, 1971, on page 2.

To understand the integration of federal facilities in the

effort to abate pollution nationwide, a brief understanding of

the Clean Air Act of 1970, 42 USC 1857 et seq. is necessary.

_—=

The Clean Air Act of 1970 places primary responsibility

for air quality control at the state government level. 42 USC

1857c-2. States have the delegated duty to maintain national

ambient air standards for various pollutants within their

respective borders. 42 USC 1857c-5. Furthermore, each

state has authority to establish more stringent air quality

standards than the national standards. 42 USC 1857d-1. Air

pollution abatement is thrust, therefore, directly to the states

under federal law.

There is, also, substantial coordination between state air

quality control efforts and the federal government. Each

state, for instance, must prepare and submit to the Federal

Environmental Protection Agency for approval an implemen-

tation plan which details the maintenance and enforcement of

ambient air standards. 42 USC 1857c-S.

In early 1972, pursuant to the requirements of the Clean

Air Act, 42 USC 1857c-5, the State of Michigan submitted a

plan describing its implementation of Federal primary and

secondary ambient air quality standards. The Administrator

of the United States Environmental Protection Agency,

reviewed this plan, known as the **Michigan Implementation

Plan,’’ and in May of 1972 timely approved it (with an

exception not here relevant). The Michigan Implementation

Plan adopted a control strategy to require that all

uncontrolled sources of air pollution would be brought into

compliance by legally enforceable compliance schedules.

Once approved by the Administrator, Environmental Protec-

tion Agency, the Michigan Implementation Plan became a

federal-state implementation.

Another key element for the integration of the federal

government into the states’ programs for air pollution

abatement is Section 118 of the Clean Air Act. Section 118

provides in relevant part that:

—_

“Each department, agency and instrumentality of the

executive, legislative and judicial branches of the Federal

Government (1) having jurisdiction over any property or

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

may result, in the 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.’’ {42 USC 1857f (emphasis ours)]

Thus, the program of air pollution control includes federal

approval of a state program and also federal compliance with

the terms of the state program; federal-state relations on air

pollution control is’ a two-way process.

Under Michigan law, a person cannot “‘install, construct,

reconstruct or alter any process, fuel burning, or refuse

burning equipment which may be a source of an air

contaminant, or control equipment pertaining thereto, before

issuance of a permit by the [Michigan Air Pollution Control]

Commission.’’ Michigan Administrative Code, 1967 AACS

R 336.21. Additionally, a person cannot *‘operate a process,

fuel burning, or refuse burning equipment which may be a

source of an air contaminant, nor an air cleaning device

pertaining thereto, before the issuance of a permit to operate

by the [Michigan Air Pollution Control] Commission.”

Michigan Administrative Code, 1973 AACS R 336.29. In

summary, under Michigan law a person seeking to utilize a

potential source of air pollution must secure two permits: a

permit to install and a permit to operate.

Juxtaposing Section 118 of the Clean Air Act, 42 USC

1857f, with the requirements for abatement of pollution that

any person in Michigan is subject to would clearly mandate

—’

that any tederal instrumentality operating in Michigan, which

is a source of air pollution, secure an installation permit and

an Operating permit from the Michigan Air Pollution Control

Commission.

B. THE FEDERAL WATER POLLUTION CON-

TROL ACT AMENDMENTS OF 1972 ALSO DIC-

TATES THAT FEDERAL AGENCIES COMPLY

WITH ALL STATE AND LOCAL REQUIREMENTS

RESPECTING THE CONTROL AND ABATEMENT

OF WATER POLLUTION.

‘“No one has the right to use America’s rivers

and America’s waterways, that belong to all the

people, as a sewer. The banks of a river may

belong to one man or one industry or one State,

but the waters which flow between the banks

should belong to all the people.”’

— President Lyndon Johnson, upon signing the

Water Quality Act of 1965.

The Federal Water Pollution Control Act Amendments of

1972, like the Clean Air Act, but with even more force,

integrates federal facilities into the state and local programs

to control water pollution. This becomes clear upon

examination of the Federal Water Pollution Control Act

Amendments of 1972, 33 USC 1251 et seq.

Like the Federal Clean Air Act of 1970, the Federal Water

Pollution Control Act of 1970 recognizes the primary

responsibility for water pollution abatement at the state

level. 33 USC 1251(b). The water act explicitly authorizes

the states to develop and enforce a permit system to achieve

compliance with the standards established in the act. 33 USC

1342(b). Furthermore, when the Administrator of the

Environmental Protection Agency approves a state permit

ne ==

— . ee

program, the issuance of federal permits is suspended. 33

USC 1342(c). The state permit, after approval of the

program, becomes a national permit.

Section 313 of the Federal Water Pollution Control Act

Amendments of 1972 specifically integrates federal agencies

and instrumentalities into the state permit programs; Section

313 stipulates that federal agencies and instrumentalities:

‘... Shall comply with Federal, State, interstate, and

local requirements respecting control and abatement of

pollution to the same extent that any person is subject to

such requirements including the payment of reasonable

service charges.” [33 USC 1323)

This section requires that federal facilities comply with all

water pollution control requirements as if they were private

citizens.

Pursuant to Section 7 of Michigan’s Water Resources Act,

a person cannot “discharge any waste or waste effluent into

the waters of [the] state unless he is in possession of a valid

permit therefor from the [Michigan Water Resources]

Commission."’ 1929 PA 245, as amended last by 1973 PA 3,

being MCLA 323.7; MSA 3.527. The Michigan permit

program is approved under the federal waste water discharge

system, also. Regulations for participation in the National

Pollutant Discharge Elimination System were approved by

the Michigan Water Resources Commission on September

21, 1973. 4 Environment Reporter 880 (No 22, September 28,

1973). On October 18, 1973, Michigan became the fourth

state to be granted permanent authority by the Environmen-

tal Protection Agency to issue National Pollutant Discharge

Elimination Permits. 4 Environment Reporter 1115 (No 27,

November 2, 1973).

—

A private person discharging waste into the waters of

Michigan, therefore, must secure a permit from Michigan

authorities pursuant to both state and federal law: federal

agencies discharging waste into Michigan waters under

Section 313 of the Water Pollution Act Amendments of 1972

should also secure a permit from Michigan authorities.

C. THE CRITICAL STATUTORY PHRASE, *‘COM-

PLY WITH REQUIREMENTS RESPECTING THE

CONTROL AND ABATEMENT OF POLLUTION TO

THE SAME EXTENT ANY PERSON IS SUBJECT TO

SUCH REQUIREMENTS,” SHOULD BE _ INTER-

PRETED TO INCLUDE COMPLIANCE WITH STATE

AND LOCAL PERMIT PROCEDURES BY FEDERAL

AGENCIES.

‘All laws are promulgated for this end, that

every man know his duty; and, therefore, the

plainest and most obvious sense of the words is

that which must be put upon them.”’

— Sir Thomas More, Utopia, bk 2.

The plain language of the Water Pollution Control Act

Amendments of 1972 and the Clean Air Act of 1970 should

govern this litigation. Two extremely eminent members of

this Court have commented upon the controlling nature of

the language of a statute as follows:

‘‘We do not inquire what the legislature meant; we only

ask what the statute means.”

{Mr. Justice Oliver Wendell Holmes, Collected Legal

Papers, 207.}

—_

and

“Spurious use of legislative history must not swallow the

legislation so as to give point to the quip that only when

the legislative history is doubtful do you go to the statute.”’

|Mr. Justice Felix Frankfurter, quoted in 47 Col L Rev

527, 543 (1947).}

The federal government suggests the water act includes

something more than the statutory language, however.

Specifically, the federal government contends that there are

two types of “‘requirements,’’ procedural and substantive.

The federal government further asserts that federal agencies

and installations must only comply with substantive

requirements and not with procedural requirements which

include permit procedures. This position does not comport

with the language of Section 118 of the Clean Air Act of 1970

or with Section 313 of the Water Pollution Control Act

Amendments of 1972.

Both Section 118 of the Clean Air Act of 1970 and Section

313 of the Water Pollution Control Amendments of 1972

contain essentially the same telling phrase; both acts dictate

that federal agencies apparently must comply with ‘*require-

ments respecting control and abatement of air [water]

pollution to the same extent that any person is subject to

such requirements.’’ Congress did not state that federal

compliance was limited to emission standards or compliance

schedules. There is nothing in the statutory language,

furthermore, which suggests a distinction between substan-

tive and procedural requirements.

The words ‘requirements respecting control and abate-

ment of pollution’ is all encompassing. A ‘*requirement’’ is

easily defined as being that which is required. Indeed,

reading the phrase ‘‘to the same extent as any other person”

—

with the phrase “comply with requirements respecting

control and abatement of pollution’’ compels the conclusion

that Congress placed federal facilities on the same basis as

private persons.

We submit, therefore. that Congress waived the immunity

of federal facilities and directed them to comply with state

and local pollution control requirements including permit

procedures.

IV.

FEDERAL AGENCIES SHOULD NOT BE ALLOWED TO

CIRCUMVENT THE PERMIT PROCESS WHICH IS THE

FOUNDATION FOR AN EFFECTIVE STATE AND LOCAL

POLLUTION CONTROL PROGRAM.

‘The policy as well as the letter of the law is a

guide to decision.”’

— Justice Douglas, in Varkham v Cabell, 326

US 404, 409 (1945).

The mandate from Congress to the states is to provide the

citizens of our country with clean air and water. Specifically,

the instruction from Congress is to regulate all sources of

pollution. Significantly, Congress waived the immunity of

federal facilities and integrated federal agencies into state

and local pollution control. The state and local permit is the

vehicle which carries out this direction from Congress.

At the practical level, pollution abatement is often secured

by the imposition of a compliance schedule for the

installation of a control technology. The technology is

subsequently evaluated by a monitoring program. Underly-

ing this entire process is a state and local permit.

spe

A permit program provides a vital information function.

Permit applications, for instance, provide basic data as to

what pollutants a facility will discharge or emit and where

and when such emissions will occur. This is the raw

information which determines the need for a compliance and

monitoring program at a polluting source.

The National Council on Environmental Quality in its

1973 report, in reference to the permit system required under

the Federal Water Pollution Control Act, stated:

‘“Once the permit system is fully operational, it should

provide a comprehensive picture of the pollution coming

from point sources as well as a vital tool for reducing such

pollution."’ [Council on Environmental Quality, Fourth

Annual Report, 280 (1973).]

Naturally, involvement in a state or local permit program

will result in some minimal inconvenience to federal

agencies. The alternative, however, is entirely unacceptable.

Without federal compliance to state and local permit

programs, there exists no means to determine whether a

federal agency has achieved technical compliance with

substantive standards. Locating potential federal sources of

pollution is, also, a serious problem without an inventory

process that a permit program provides. The permit process

insures that federal agencies comply with the laws and

regulations for pollution control. If any one or more sources

remains independent of a state or local control program, it

may become impossible to maintain air and water quality

standards. In our view, the federal government has no

special license to pollute and should therefore, comply with

state and local permit requirements.

_ TR

a

CONCLUSION

The State of Michigan believes that federal facilities

should be subject to state and local permit requirements

because:

1) Congress waived immunity from state regulation for

federal facilities, and

2) an effective nationwide pollution abatement program

requires the integration of federal facilities into the state

pollution control system.

Consequently, Michigan urges this Court to affirm the

decision below.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Robert A. Derengoski

Solicitor General

Stewart H. Freeman

Assistant Attorney General

Charles Alpert

Assistant Attorney General

Environmental Protection and

Natural Resources Division

The Law Building, Suite 630

525 West Ottawa

Lansing, Michigan 48913

(S17) 373-1130

DATED: September 5, 1975

oo

FOOTNOTES

it)

General Services Administration, Inventory Report - Real Property Leased to

the United States Throughout the World. june WO, 1973), p %.

12}

Id., pp. 16-17.

13}

Environmental Protection Agency, Office of Air Programs, Real Property Owned

by the Federal Government in the State of Michigan Wune, 1971).

(4)

Id. The nine installations are as follows: Veterans Administration Hospital

(Battle Creek), Wurtsmith Air Force Base, Selfridge Air Force Base, Detroit

Arsenal and Tank Plant, Fort Custer, Keweenaw Fid. Stat., Michigan Army MSL

Pi, Kincheloe Air Force Base and K.1. Sawyer Air Force Base.

1S}

Zwick, David and Benstock, Mary, Water Wasteland, Bantam Books, Inc.,

(New York, 1971), p. 340.

(8)

General Services Administration, supra fn 1, p. iv.

(9)

Zwick, supra fn 5, p. 340.

{10}

See also, Baltimore Nat Bank v State Tax Commission, 297 US 209, 211 (1936):

Pacific Coast Dairy Inc v Dept of Agric of Calif, 318 US 285, 296 (1943).