Petitioners Brief — General Motors Corp. v. United States

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IN THE

Supreme Court of the United S

OCTOBER TERM, 1989

GENERAL Motors CORPORATION,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

i ee ei ee, ae tt ea

— —

On Writ Of Certiorari To

The United States Court Of Appeals

For The First Circuit

BRIEF OF PETITIONER

GENERAL MOTORS CORPORATION

r Le in, oti te of

THEODORE L. GARRETT

Counsel of Record

Sonya D. WINNER

CovINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-5398

Of Counsel: Counsel for Petitioner

Harry J. PEARCE

General Counsel

JAMES C. CUBBIN

PATRICK J. MCCARROLL

General Motors Corporation

New Center One Building

3031 West Grand Boulevard

Detroit, Michigan 48232

(313) 974-1686

January 1990

}

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PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

In 1985 the Commonwealth of Massachusetts re-

vised its Clean Air Act implementation plan to pro-

vide an extension of time to 1987 for General Motors

to comply with certain air regulations. The revision

was adopted pursuant to the Clean Air Act and pub-

lished EPA policy. The extension of time allowed GM

time to build a new $200 million facility that achieved

lower emissions than were otherwise required. EPA

failed to approve or disapprove the Commonwealth's

revision, and instead filed suit against GM seeking

penalties for failure to meet the original deadline. The

questions presented are:

1. Where EPA has failed to act on a revision to a

state plan within four months, as required by the

Clean Air Act, may the government bring an action

for civil penalties against a company that is in com-

pliance with the revised plan?

2. Whether the decision below undermines the pri-

mary role of the states under the Act and interferes

with the ability of states to make ongoing policy

choices as to air pollution control measures?

3. Whether the decision below will create disincen-

tives for even-handed administration of the Act and

will unnecessarily enmesh the courts in litigation con-

cerning the reasonableness of EPA’s delay in ap-

proving state plans?

The names of all parties are set forth in the caption of this

case. The appendix to the petition for certiorari (pp. 19a-21la)

lists all parent companies, subsidiaries and affiliates as required

by Rule 29.1. (DHMS Industries, Ltd. (Korea), listed at page 20a

of that appendix, no longer exists.)

TABLE OF CONTENTS

nnr

STATEMENT OF THE CCH ———ᷓ—4ↄ—

A. Statutory Background .........................0+

B. The Massachusetts SIP ......................00+

ee OM ee

ꝓ— ———

I. THE REQUIREMENT THAT EPA ACT UPON

SIP REVISIONS WITHIN FOUR MONTHS IS

AN INTEGRAL PART OF THE STATUTORY

SCHEME DESIGNED TO PRESERVE THE

PRIMARY ROLE OF THE STATES ..............

A. The Statute uires EPA To Act Upon

SIP Revisions Within Four Months

B. The Four-Month Rule Serves As An Im-

portant Check On EPA Efforts To Run

State Programs And Acts To Preserve

The Primary Role Of The States

C. EPA’s Pocket Veto“ Of A SIP Revision

Frustrates The Statutory Scheme ..........

—

1K 1 t — — 2

— —

W ©

— — eS

iii

II. EPA’S FAILURE TO TAKE PROMPT ACTION

III.

UPON A SIP REVISION BARS AGENCY EN-

FORCEMENT OF INCONSISTENT PROVI-

SIONS OF THE PRE-EXISTING SIP ............

A. Federal Enforcement Of SIP Require-

ments That A State Has Sought To

Change Is Inconsistent With The Primary

— Of The States Envisioned In The

11 ———————————————

B. The Remedy Fashioned By The Fifth Cir-

cuit In American Cyanamid Is An A

Es riate, Non-Intrusive Response To

PA’s Failure To Comply With A Man-

datory Statutory Requirement ................

C. The Fifth Circuit’s 1 — Properly

Implements Congress’s View of the Rea-

sonable’ Time for EPA Review ............

ALTERNATIVE REMEDIES SUGGESTED BY

EPA AND BY THE COURT BELOW ARE IN-

ADEQUATE, INTRUSIVE, AND CUMBER-

133 — —

A. Alternative Remedies Are Insufficient to

Give Full Effect To The Primary Role Of

The States Under The Aett .

B. EPA’s Failure To Take Prompt Action

On SIP Revisions Subjects Industry To

Conflicting Federal And State Regulatory

irements And Provides A Serious

Disincentive To The Adoption Of Inno-

vative Pollution Control Strategies ........

C. A Bar On Enforcement Actions That Are

Inconsistent With Pending SIP Revisions

Upon Which EPA Has Failed To Act

ithin Four Months Is Nece To Pre-

serve The Integrity of EPA’s SIP Review

D. The American Cyanamid Remedy, Unlike

Other Proposed Remedies, Does Not Re-

= Extensive And Continuing Judicial

nvolvement In EPA’s Allocation Of

k 40

6 ———— —— ů ů — ů ——̃ —-—-— 45

Appendix: Statutory Provisions Involved

TABLE OF AUTHORITIES

Page

CASES

Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.

0/0 ̃ d!——— 44

American Cyanamid Co. v. EPA, 810 F.2d 943

GEE TE EIEN ‘Gaciberdecctcmsicnaseceasadauneubiniee 20-22, passim

Bethlehem Steel Corp. v. EPA, 782 F.2d 645 (7th

GA I taetsctnevesesscancinmivcsnmiiunnscatatemenmiiinnine 18

Bethlehem Steel Corp. v. Gorsuch, 742 F.2d

In 10,17,19,20

Brock v. Pierce County, 476 U.S. 253 (1986) ........ 26

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) . 21

Concerned Citizens of Bridesburg v. EPA, 836 F. 2d

. 17

Council of Commuter Organizations v, Gorsuch, 683

eg ff: er eee 14

Council of Commuter Organizations v. Thomas, 799

Le 14

Duquesne Light Co. v. EPA, 698 F.2d 456 (D.C.

P 14,32

Florida Power & Light Co. v. Costle, 650 F.2d 579

„„ 17

General Motors Corp. v. EPA, 871 F.2d 495

0 22,35, 37,39

Indiana & Michigan Electric Co. v. EPA, 733 F.2d

Kü A 18.19

Mision Industrial, Inc. v. EPA, 547 F. 2d 123 (Ist

—.— 11 17

Natural Resources Defense Council v. Thomas,

705 F. Supp. 1 D. D. C. 1988) 41,43, 44

NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1974) 44

Table of Authorities Continued

Page

Sierra Club v. EPA, 719 F.2d 436 (D.C. Cir. 1983),

cert. denied, 468 U.S. 1204 (1984) . .. 14

Sierra Club v. Gorsuch, 551 F. Supp. 785 (N.D.

Ce REED eececdennpndicsigemisisitiatinessenintintatmnernreee 44

Sierra Club v. Indiana-Kentucky Electric Corp., 716

F.2d 1145 (7th Cir. 1983) 17,35

Sierra Club v. Ruckelshaus, 602 F. Supp. 892 (N.D.

ee Ḱ—„⁊¶!.. 8 43

State of Michigan v. Thomas, 805 F.2d 176 (6th

1 19

Train v. Natural Resources Deſense

Council, 421 U.S. 60 (1975) .. 4,14,15,16,17,18,26,42

Union Electric Co. v. EPA, 427 U.S.

11 P 16,17,19,34,42

United States v. Alcan Foil Products, 889

F.2d 1513 (6th Cir. 1989) . . 14,20,28,42

United States v. General Motors, 876 F.2d

eee 9-10, passim

United States v. National Steel Corp., 767 F.2d 1176

I I otis ees tcmnedemnpnenianeties 14

STATUTES

Z CIID cccccoccccssecnccecocecccsescensvesss 1

r ...... 16

e ee 2.3

eee 3

e passim

r 13-14, passim

ee 13-14, passim

eee eee eee 18

e 13,27,28

D 5

. 0 1

vii

Table of Authorities Continued

Page

42 U.S.C. § 7502(aX2) (1982) . . . . . . . . . . . 4

42 U.S.C. § 7603(a) (1982) .. .. . . 25

42 U.S.C. § 7604(aX2) (1982) . . 10,41,42,43

42 U.S.C. § 7607(bM1) (1982) . .. .. 41

LEGISLATIVE MATERIALS

U.S. Senate Committee on Public Works, A Leg-

islative History of the Clean Air Act Amend-

ments Of 1970 9 ů ů— 15,16

H. R. — 5 No. 95-294, 95th Cong., Ist Sess.

1 ͤÄ—ͤ—ç—E½ . ————— 16

S. Rep. No. 95-127, 95th Cong., 1st Sess. (1977) 16

MISCELLANEOUS

. 6

I . — 5.6.24

EPA, Report of Audit: Review of EPA “VS Process for

A en ye State Implementation

Plans and Revisions, E1K6*8-11-0045-9100210

(March 1989) (copy lodged with the Clerk of

ccc —j—————ĩ 25. 29,30

EPA, State Implementation Plan Processing

Reform, 54 Fed. Reg. 2214 (1989) .......... 29,30,31,34

46 Fed. Reg. 51386 (1981) . . . .. 5,6

50 Fed. Reg. 18693 (1985) . . .. . .. 6

50 Fed. Reg. 20602 (1985) ...... . . . . 7

51 Fed. Reg. 3476 (1986) .. . . . . 7

51 Fed. Reg. 43394 (1986) ...... ..... . . . . . 7,38

53 Fed. Reg. 36011 (1988) . . . . . .. 9

54 Fed. Reg. 19173 (1989) .. .. 33

ö “ 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-369

GENERAL Motors CORPORATION,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari To

The United States Court Of Appeals

For The First Circuit

BRIEF OF PETITIONER

GENERAL MOTORS CORPORATION

OPINIONS BELOW

The opinion of the Court of Appeals was rendered on

June 7, 1989. It is reported at 876 F.2d 1060 and is

reprinted in the Appendix to the Petition for Certiorari.

The opinion of the District Court, which was rendered

on May 16, 1988, is unpublished and appears at pp. 119-

25 of the Joint Appendix.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1) (1982). The petition for certiorari was timely filed

on September 5, 1989, and the Court granted the petition

on December 4, 1989.

STATUTORY PROVISIONS INVOLVED

The Clean Air Act provides that the states are to be

accorded primary responsibility for assuring air quality

within their boundaries. 42 U.S.C. § 7407(a) (1982). This

responsibility is fulfilled primarily through the promulga-

tion of Implementation Plans by the States, with general

oversight by the federal Environmental Protection Agency

(“EPA”). 42 U.S.C. § 7410 (1982). The statute requires

EPA to act to approve or disapprove State Implementation

Plans (“SIPs’’) and revisions to SIPs within four months.

42 U.S.C. § 7410(aX2), (3) (1982). The pertinent provisions

of the statute are reprinted in Appendix A to this brief.

STATEMENT OF THE CASE

This case concerns the appropriate division of authority

between the federal government and the states in the es-

tablishment of State Implementation Plans under the Clean

Air Act. Relying on an EPA policy published in 1981, the

Commonwealth of Massachusetts revised its SIP regula-

tions to grant General Motors a 20-month extension of

time to comply with certain air emission limits. The pur-

pose of the SIP revision was to allow General Motes time

to construct a new automobile painting facility using a

more advanced, lower-emitting painting system than the

facility it replaced. EPA failed to approve or disapprove

the SIP revision. The new facility was constructed and

the extension expired. EPA then filed suit in August 1987

seeking penalties to enforce the 1985 deadline in the orig-

inal SIP.

Under the Clean Air Act, the states have primary re-

sponsibility for developing plans to implement the Act. The

statute grants EPA limited authority to approve or dis-

approve such plans or revised plans within four months.

Citing the Fifth Circuit’s decision in American Cyanamid

Co. v. EPA, 810 F.2d 493 (5th Cir. 1987), General Motors

argued that EPA's failure to meet the four-month deadline

in this case barred any enforcement action against General

Motors unless and unt EPA completes its review and in

fact disapproves the revision. The district court agreed and

entered summary judgment for General Motors. The United

States Court of Appeals for the First Circuit reversed,

expressly declining to follow the rule established in Amer-

ican Cyanamid.

A. Statutory Background

The Clean Air Act of 1970 established a federal-state

partnership for the control of air pollution. The statute

creates a logical and straightforward division of authority.

The federal government, through the EPA, establishes the

national air quality goals for various pollutants, such as

ozone, called National Ambient Air Quality Standards

(“NAAQS”). 42 U.S.C. § 7409. However, when it comes

to determining the source-specific emission limits to achieve

the national standards, each state has the primary re-

sponsibility for assuring air quality” within its borders. 42

U.S.C. § 7407(a). Under the Act, each state is required,

after notice and public hearings, to adopt a State Imple-

mentation Plan (‘‘SIP’’) consisting of regulations providing

for the attainment, implementation, and enforcement of

the national standards for sources within the state. 42

U.S.C. § 7410.

Each state must submit its SIP to EPA for review and

approval. 42 U.S.C. § 7410(aX1). However, Congress be-

lieved it important that the states retain wide latitude in

determining how national standards should be achieved,

given local needs and conditions. Accordingly, EPA was

prohibited from rejecting a state SIP if it was designed

to achieve and maintain the national standards. 42 U.S.C.

§ 7410(aX2). This Court has emphasized that the State is

at liberty to adopt whatever mix of emission limitations

—

it deems best suited to its particular situation“ as long as

the net result is compliance with the national standards.

Train v. Natural Resources Defense Counsel, 421 U.S. 60,

79 (1975).

The Act contains various deadlines, including those for

EPA action on SIPs.' Under 42 U.S.C. § 7410(aX2), EPA

is required to approve or disapprove a SIP within four

months of its submission. This requirement for prompt

review by EPA serves to ensure rapid implementation of

the state programs, and to minimize the time during which

there may be differences between state and federal air

programs. A federally approved SIP is enforceable by both

the state and the federal government.’

The statute allows a state to revise its SIP at any time

it deems appropriate. 42 U.S.C. § 7410(aX3). Congress an-

ticipated that the design and administration of SIPs would

be an ongoing process to take into account new air quality

data, technological and economic considerations, and evolv-

ing policies. EPA’s review of a SIP revision is governed

by the same substantive and procedural requirements ap-

plicable to original SIPs, including the duty to act on SIP

revisions within four months. Jd. As noted above, the four-

month deadline requires EPA to render a prompt decision,

so that the state may, if necessary, make appropriate ad-

justments in its plan and proceed to administer and enforce

it with minimal disruption and confusion.

B. The Massachusetts SIP

General Motors owns and operates an automobile as-

sembly plant in Framingham, Massachusetts. The plant

The Act contains deadlines for states to promulgate certain aspects

of their plans. 42 U.S.C. § 7410(aX1). The Act also contains deadlines

for the attainment of air quality standards. For ozone the deadline is

December 31, 1987. 42 U.S.C. § 7502(a\2).

* The state can enforce it as a part of its legislative and regulatory

process. EPA's enforcement authority derives from the Clean Air Act,

which authorizes federal enforcement in cases where an applicable EPA

approved SIP is violated. 42 U.S.C § 7413(a\1).

contains a paint shop that is a source of volatile organic

compounds (““VOCs’’), which contribute to ozone. In 1979,

the Commonwealth of Massachusetts promulgated SIP reg-

ulations establishing limits on emissions of VOCs. 310 CMR

7.18(7), J.A. 27. These regulations applied to automobile

painting operations at GM’s Framingham plant, the only

automobile plant in the Commonwealth. As originally pro-

mulgated, the regulations required full compliance with the

emission limits by December 31, 1985—two years before

the Clean Air Act’s final 1987 compliance deadline for

ozone. 42 U.S.C. § 7502(aX2). These SIP regulations were

approved by EPA in 1980.

On October 2, 1981, shortly after the Massachusetts SIP

requirements were approved, EPA published a policy state-

ment advocating delay of the compliance dates for auto-

mobile painting operations up to the 1987 statutory

deadline. 46 Fed. Reg. 51386 (1981), J.A. 30. Deferral of

deadlines in existing SIPs was suggested by EPA as part

of its effort to reduce the regulatory burden on the motor

vehicle industry.” Jd. The policy noted that deadline de-

ferrals would allow the industry time to develop and im-

plement more cost-effective technology, including new

painting methods and control technology, and would allow

a more orderly compliance effort nationally. Jd. EPA stated

that it will approve’’ state SIP revisions submitted, con-

sistent with the policy, which postpone final compliance

with the automobile painting limits up until 1987. Id.,

J.A. 33-34. In order to allow the industry to concentrate

on the development of cost-effective final control tech-

niques, EPA recommended that states not impose interim

emission limits, but simply grant an extension of time to

meet final limits. Jd. at 51387, J.A. 35.

Pursuant to this policy statement, General Motors in

1984 submitted a request to the Commonwealth of Mas-

sachusetts for extension of the deadline in 310 CMR 7.18(7)

to December 31, 1987, for the automobile coating opera-

tions at the Framingham plant. This request was based

on the proposed installation of abatement controls at Gen-

eral Motors’ then-existing lacquer painting facilities at the

plant. J. A. 38.“ In mid-1985, General Motors revised its

request to reflect a decision to adopt a more substantial

long-term air pollution control strategy at the Framingham

facility. General Motors decided to close the lacquer facility

and build, at a cost of over $200 million, a technologically

innovative basecoat/clearcoat enamel paint system.‘ This

new system, although much more costly to install, had the

advantages of lowering emissions substantially below the

level required by 310 CMR 7.18(7), and of improving the

efficiency and competitiveness of the Framingham plant.

On June 7, 1985, General Motors informed the Common-

wealth of its revised plans and reiterated its request for

an extension of the SIP compliance deadline. J.A. 41.

The Commonwealth provided public notice and held a

hearing on the proposed SIP revision, which was attended

by EPA representatives. J.A.61. Following the public

hearing, the Commonwealth revised its SIP to extend the

automobile compliance deadline for 20 months to August

31, 1987, several months short of the final Clean Air Act

deadline and GM’s requested extension. The revised SIP

was submitted by the Commonwealth to EPA for approval

on December 30, 1985. J.A. 50. There was good reason to

believe that the Commonwealth's SIP revision was ap-

provable, based on EPA’s 1981 policy and Agency actions

to implement that policy.

* The cost of this conventional control option was estimated by GM

to be under $20 million.

This basecoat/clearcoat system was cited with approval in EPA's

1981 policy. 46 Fed. Reg. 51386 (1981), J.A. 30. EPA orders issued to

several automobile companies under §111(j) of the Act, 42 U.S.C.

974110), also recognized this system as innovative technology. See 40

C. F. R. § 60.398.

* Earlier that year, EPA proposed to approve a request for a similar

extension of the compliance deadline for a GM plant in Delaware, 50

During the ensuing two years and nine months, EPA

took no final action to approve or disapprove the proposed

revision.“ In reliance on the SIP revision and EPA’s policy

of deferral, General Motors proceeded with its state-ap-

proved compliance strategy and spent over $200 million

to construct a new, lower-emitting paint facility using the

basecoat/clearcoat technology. The old Framingham paint

facility was closed on schedule,’ and there is no dispute

that General Motors was—and remains—in full compliance

with the revised SIP requirements.

C. Proceedings Below

The Complaint in this action was filed on August 17,

1987, nearly twenty months after the proposed SIP re-

vision was submitted to EPA, and more than a month

after the old Framingham paint facility was permanently

Fed. Reg. 18693 (1985), and EPA approved a similar deferral for a

Ford plant in Virginia. 50 Fed. Reg. 20602 (1985). In the following

year, EPA reaffirmed the continuing effectiveness of the 1981 policy.

51 Fed. Reg. 3476 (1986).

purpose of the revision was to defer the deadline, which would render

inappropriate any “‘enforcement’’ of the pre-existing

monwealth of Massachusetts and General Motors both filed comments

opposition to the proposed disapproval. Eight months

passed before EPA brought this suit—still without taking final action

on the revision.

line. JA 23

shut down.“ The Complaint sought civil penalties for vio-

lation of the 1985 deadline in the original SIP. The com-

plaint also requested injunctive relief.“ The Complaint made

no mention of the Commonwealth’s revision of that SIP

deadline; nor did it mention that, despite the passage of

nearly two years, EPA had still not taken final action on

that revision.

On September 18, 1987, General Motors moved for sum-

mary judgment. J.A. 14. Relying principally upon the Fifth

Circuit’s holding in American Cyanamid Co. v. United

States, supra, General Motors asserted that EPA's failure

to act upon the proposed SIP revision within the four-

month statutory period barred it from bringing an en-

forcement action inconsistent with that revision. On May

16, 1988, the District Court granted summary judgment

to General Motors. The District Court found that condi-

tioning enforcement upon EPA’s compliance with the four-

month deadline was appropriate on several grounds, in-

cluding the fact that EPA had not taken final action:

“First, the EPA always holds the ultimate trump card:

it may at any time during or after the allowed four

month period reject the proposal and invoke enforce-

ment proceedings under the original SIP. Second, it

strains credulity that truly important or controversial

SIP revisions cannot be effectively identified early on

in the process and scheduled for expedited review. . . .

Third, a period any greater than four months would

On August 14, 1986, prior to taking action on the proposed SIP

revision, EPA issued a Notice of Violation (a statutory prerequisite to

the initiation of an enforcement action) for violation of the original

1985 deadline.

* EPA later withdrew its request for injunctive relief and does not

dispute that the painting facility at issue has been permanently closed.

See First Amended Complaint, J. A. 112. Accordingly, the relief that

EPA currently seeks in this case is past penalties for alleged violations

of the old SIP requirements for the period before the facility was closed.

————y — —

leave both the states and the affected industries in

an unjustifiable state of limbo. For an indefinite pe-

riod, the state would be unable to act to balance dic-

tated national priorities with the interests of its

citizens and industries as the Clean Air Act intended.

And the industries themselves, though fully in com-

pliance with state law, would in some instances face

the Scylla and Charybdis choice between ceasing op-

erations now, or possibly being forced out of business

by heavy fines later.

Slip op. at 7, J.A. 124.

EPA appealed the district court’s decision. On Septem-

ber 16, 1988, the very day that EPA filed its brief in the

Court of Appeals, it published a final notice disapproving

the SIP revision. 53 Fed. Reg. 36011 (1988). At that point,

of course, the SIP revision had become moot for all prac-

tical purposes except EPA’s enforcement action.“ On June

7, 1989, the First Circuit reversed the district court’s de-

cision and remanded for further proceedings.

The F rst Circuit agreed with the district court that the

Clean Air Act imposes a four-month deadline on EPA

review of SIP revisions. 876 F.2d at 1066. The court noted

that it is unlikely that Congress intended for the states’

legitimate policy choices to be held hostage to EPA’s

schedule, and that the American Cyanamid rule provides

EPA with the greatest incentive to complete its review

within four months. Jd. at 1066-1067. The First Circuit

nonetheless held that that EPA may bring an enforcement

General Motors has filed a request for reconsideration with EPA,

pointing out technical and legal deficiencies and irregularities in the

disapproval decision. General Motors also filed a petition for review of

the decision in the Court of Appeals. General Motors v. United States,

No. 88-2123 (Ist Cir). That appeal has been stayed by the First Circuit

pending EPA action on the request for reconsideration—and, of course,

the final decision in this case, either of which, if decided in General

Motors’ favor, would render the appeal moot.

action. It concluded, without citing any factual support,

that EPA would frequently miss the deadline even with

the incentive of an enforcement bar, and held that an

enforcement bar was too drastic.“ Jd. at 1067."

The First Circuit suggested a different, two- fold“ rem-

edy for EPA’s failure to observe the four-month deadline.

First, the affected source may file suit in federal district

court under 42 U.S.C. § 7604(aX2) to compel EPA to act

on the SIP revision. Jd. Second, when EPA brings an

enforcement action, the district court may consider, in as-

sessing penalties, the reasonableness of the Agency’s delay

and the resulting prejudice, if any, suffered by the com-

pany. Id. at 1068. The Court expressed the hope that these

remedies would “induce prompt EPA action and thus en-

sure that the interests of the states need not yield too

far.’’ Id. For the reasons set forth below, the First Cir-

cuit’s approach is inconsistent with the primary role of

the states in establishing SIPs under the Act, will not

sufficiently induce EPA to meet the four-month deadline,

and is more intrusive on EPA and the courts than the

enforcement bar adopted in American Cyanamid.

SUMMARY OF ARGUMENT

In enacting the Clean Air Act, Congress created an

“experiment in federalism’ that was designed to achieve

national standards through state regulation. Bethlehem Steel

Corp. v. Gorsuch, 742 F.2d 1028, 1036 (7th Cir. 1984).

Under the Act, EPA’s role is significant but limited. The

Agency promulgates the national standards and supervises

state achievement of those standards, but the development

and enforcement of specific emission limitations to achieve

those standards is left primarily to the discretion of the

states.

The First Circuit indicated that it would be receptive to the Amer-

ican Cyanamid remedy if it were certain that EPA could review SIP

revisions within four months. 876 F.2d at 1067.

ee —ů——

—ñ ͤ—u—ͤ———:

The statute contains a series of very specific substantive

and procedural requirements that are designed to create

and maintain the proper balance of state and federal au-

thority in the “partnership” between EPA and the states.

Among these requirements is a requirement that revisions

to SIPs promulgated by the states be acted on by EPA

within four months. EPA has regularly, as a matter of

policy as well as practice, failed to comply with this re-

quirement.’ Instead, the Agency has claimed the right to

ignore state-promulgated SIP revisions for extended pe-

riods of time and to proceed with enforcement actions

against companies who have acted in good-faith compliance

with the revised SIP.

This policy and practice on the part of EPA seriously

upsets the careful balance of state and federal authority

created under the Act. The rule adopted by the Fifth Cir-

cuit in American Cyanamid Co. v. EPA is a reasonable,

limited, and relatively nonintrusive remedy for EPA’s fail-

ure to act promptly on SIP revisions. The Fifth Circuit’s

approach gives EPA a choice between completing its re-

view of a SIP revision within four months, as the statute

requires, or foregoing, during the pendency of EPA delay,

any enforcement action that would be inconsistent with

that revision. This is the only remedy that maintains the

balance of authority between the states and the federal

government as intended by Congress.

Alternative remedies, including those suggested by the

First Circuit in this case and by the government, are not

effective to redress the imbalance of state and federal

authority that EPA creates by not acting promptly upon

SIP revisions. Since these remedies leave EPA free to

ignore pending SIP revisions in pursuing its enforcement

strategy, they create little incentive for the Agency to act

on revisions promptly. The alternative remedies also fail

See pages 28-31 below.

to take into account the extent to which EPA’s insistence

on enforcement, where it has failed to act on a pending

SIP revision, threatens to undermine the integrity of the

SIP review process itself by commingling EPA’s enforce-

ment and SIP review functions. Moreover, these remedies

would inevitably involve the courts in a constant stream

of burdensome and unnecessary litigation over the man-

agement of EPA’s SIP review program and the reason-

ableness’’ of the delays experienced in particular cases.

ARGUMENT

I. THE REQUIREMENT THAT EPA ACT UPON SIP RE-

VISIONS WITHIN FOUR MONTHS IS AN INTEGRAL

PART OF THE STATUTORY SCHEME DESIGNED TO

PRESERVE THE PRIMARY ROLE OF THE STATES.

The First Circuit held that EPA must act on SIP re-

visions within four months, and properly rejected the gov-

ernment's position that EPA may act on SIP revisions at

its sole convenience.“ However, the First Circuit failed to

relate the four-month rule to EPA’s secondary role in the

SIP process and erroneously assumed that the deadline is

unrealistic. Review of the statutory and policy basis for

the four-month rule is important to an understanding of

the reasons why the remedy fashioned by the First Circuit

is insufficient, and why a temporary bar on enforcement

is necessary.

In its opposition to General Motors’ petition for certiorari, EPA

stated that it reserved the right to challenge the existence of the four-

month rule should this court grant certiorari. Brief for the United

States in Opposition at 8 n.1 (November 1989). However, since EPA

did not itself petition for review, and since that issue was not presented

in General Motors’ petition, such a right was not EPA's to reserve.

See Sup. Ct. Rule 24.1(a). Moreover, as discussed below, the Court of

Appeals’ decision on this point is clearly not plain error evident

from the record,” and thus is not properly raised here at this point.

Id.

A. The Statute Requires EPA To Act Upon SIP Re-

visions Within Four Months.

We begin with the language of the statute. Section

110(aX2) of the Act, as noted above, establishes a detailed

list of substantive and procedural requirements governing

EPA’s review of SIPs. 42 U.S.C. § 7410(aX2). This pro-

vision requires EPA to approve, within four months, any

SIP that provides for the attainment and maintenance of

the national air quality standards and fulfills other tech-

nical and procedural requirements. Congress anticipated

that the design and implementation of SIPs would be a

continuing process, and thus provided in § 110(a 3) of the

Act for the revision of SIPs by the states. 42 U.S.C.

§ 7410(aX3).

This authority for SIP revisions does not contain a sep-

arate list of requirements for EPA approval. Instead, it

simply provides that EPA shall approve any revision of

an implementation plan [if the Administrator of EPA] de-

termines that it meets the requirements of paragraph

[§ 110(aX2)] and has been adopted by the State after rea-

sonable notice and public hearings.” Jd. Section 110(a\2)

requires EPA action on SIPs within four months. Although

there is no express deadline in § 110(aX3) for EPA action

on SIP revisions, the express incorporation of the sub-

stantive and procedural requirements of § 110(aX2) makes

it evident that Congress intended the four-month time limit

for action on SIPs to apply to SIP revisions as well.“ In

short, all of the requirements of § 110(aX(2), including the

four-month rule, apply with equal force to EPA review of

SIP revisions under § 110(aX3).

There is no reason to believe that Congress regarded

the expeditious approval of SIP revisions to be any less

Further support for this conclusion is found in 42 U.S.C. § 7410(g),

which discusses circumstances in which EPA has not acted on a SIP

revision designed to prevent plant closings “within the required four

month period. See note 34 below.

important than the approval of original SIPs. As this Court

stated in discussing section 110(aX3) in Train, supra:

“Far from evincing congressional intent that the

Agency assume control of a State’s emission limita-

tions mix once its initial plan is approved, the revision

section is to all appearances the mechanism by which

the States may obtain approval of their developing

policy choices as to the most practicable and desirable

methods of restricting total emissions to a level which

is consistent with the national ambient air standards.“

421 U.S. at 80. The Court pointed out that the statute

“left to the States considerable latitude in determining

specifically how the standards would be met. This discre-

tion includes the continuing authority to revise choices

about the mix of emission limitations.“ Jd. at 87 (emphasis

added).

All of the courts of appeals that have had occasion to

address this issue, including the decision below, have con-

cluded that the four-month rule applies to SIP revisions

as well as to original SIPs. American Cyanamid Co., su-

pra; Duquesne Light Co. v. EPA, 698 F.2d 456, 471 (D.C.

Cir. 1983); Council of Commuter Organizations v. Gorsuch,

683 F.2d 648, 651-52 (2d Cir. 1982); Council of Commuter

Organizations v. Thomas, 799 F.2d 879, 888 (2d Cir. 1986);

United States v. Alcan Foil Products, 889 F.2d 1513 (6th

Cir. November 21, 1989). EPA’s position that it may act

on SIP revisions at its convenience is thus contrary to the

unanimous weight of judicial authority.

See also Sierra Club v. EPA, 719 F.2d 436, 469 (D.C. Cir. 1983),

cert. denied, 468 U.S. 1204 (1984). In a one-line dictum in a footnote,

the Sixth Circuit previously suggested that the four-month rule might

not apply to SIP revisions. United States v. National Steel Corp., 767

F.2d 1176, 1182 n.1 (6th Cir. 1985). However, in its recent opinion in

Alcan Foil Products, supra, the Sixth Circuit disavowed that dictum

and held that the four-month rule does apply to SIP revisions.

B. The Four-Month Rule Serves As An Important

Check On EPA Efforts To Run State Programs

cts To Preserve The Primary Role Of The

A fundamental problem with the First Circuit’s decision

is its assumption that the four-month rule is simply a

procedural device, and that a judicially determined rea-

sonableness test should be substituted for the provision

enacted by Congress. There is no discussion in the First

Circuit’s decision of the function of EPA’s review, and the

court thus failed to grasp the rationale for the enforcement

bar in American Cyanamid. One or two years might be

a reasonable time for review if EPA were supposed to be

undertaking a comprehensive review of all of the details

of a SIP submission. However, that is not the role intended

by Congress. Instead, Congress gave EPA a limited role

in reviewing SIPs and specified four months as a reason-

able time for EPA to exercise that function. Allowing EPA

an open-ended review of SIPs gives the Agency a licence

to ignore state policy choices and to frustrate the intent

of Congress.

In order to ensure that state prerogatives are given full

effect, Congress has carefully limited EPA’s ability to in-

terfere with a State’s SIP and SIP revision by (1) requiring

final EPA action within four months, and (2) explicitly

limiting the grounds upon which EPA may decline to ap-

prove a SIP or SIP revision. 42 U.S.C. § 7410(al 2). (3);

Train v. Natural Resources Defense Council, supra, 421

U.S. at 79. The four-month rule must thus be viewed in

»The legislative history indicates that Congress regarded time limits

on EPA's review of SIPs as important to the efficient and expeditious

attainment of air quality goals. See, e.g., S. Rep. No. 1196, 91st Cong.

2d Sess. 21 (1970), reprinted in 1 U.S. Senate Committee on Public

Works, A Legislative History of the Clean Air Act Amendments of 1970,

at 421; see also 1 1970 Legislative History, at 385 (Senate debate).

the context of broader Congressional concern as to EPA’s

limited role.

The legislative history of the 1977 amendments to the

Act underscores the intent of Congress to preserve the

primary responsibility’ of the states. 42 U.S.C.

§ 7401(aX3). The Senate Report states that Congress was

concerned with the need to augment the “authority” and

“responsibility” of state and local air pollution control pro-

grams. States and localities are given broad discretion

to make decisions within the framework of national pol-

icy. S. Rep. No. 95-127, supra, at 10. The report also

stresses that the “Federal role must be one of support

rather than control. The Federal Government does not and

will not have the resources required to do an effective job

of running state air pollution control programs. Id. The

report concludes that EPA will “protect and enhance air

quality more by fulfilling its support role rather than

by trying to run state programs. Id.

Numerous decisions by this Court and lower federal

courts have underscored the primary role of the states in

developing and implementing SIPs. This Court held in 1975

that “‘[t}he Act gives the Agency no authority to question

the wisdom of a State’s choices of emission limitations if

they are part of a plan which satisfies the standards of

§ 110(aX2)...."" Train v. Natural Resources Defense Coun-

cil, supra, 421 U.S. at 79. In Union Electric Co. v. EPA,

472 U.S. 246, 265-67 (1976), the Court again emphasized

the primary role of the states in establishing and imple-

8. Rep. No. 95-127, 95th Cong. Ist Sess. 10 (1977). The 1977

House report also stressed that one of the Act's principal purposes was

“to give the States more flexibility in determining how to protect public

health while still permitting reasonable new growth.” H.R. Rep. No.

95-294, 95th Cong., Ist Sess. 213 (1977). Similar views were expressed

during debate on the 1970 amendments. See, ¢.g., 1 1970 Legislative

History at 113, 127.

——

menting regulations under the Act, holding that economic

and technological issues should be addressed to the state

agency formulating the plan, not to EPA.

Since this Court’s decisions in Train and Union Electric

Co., the lower courts have consistently underscored the

importance of the states’ role as primary designers and

implementers of regulations under the Act.“ The Eighth

Circuit succinctly summarized the federal-state division of

authority under the Act:

[Type Clean Air Act creates a partnership between

the states and the federal government. The fed-

eral government through the EPA determines the

ends—the standards of air quality—but Congress has

given the states the initiative and a broad responsi-

bility regarding the means to achieve those ends

through state implementation plans and timetables for

compliance. The Clean Air Act is an experiment

in federalism, and the EPA may not run roughshod

over the procedural prerogatives that the Act has re-

served to the States.

Bethlehem Steel Corp. v. Gorsuch, supra, 742 F.2d at 1036

(emphasis added).

C. EPA’s Pocket Veto“ Of A SIP Revision Frus-

trates The Statutory Scheme.

The division of federal and state authority in the Act

is embodied in the specific and detailed limits on EPA's

authority to interfere in a state’s policy choices concerning

air quality control. The statute does not permit EPA to

write SIP requirements itself, either directly or indirectly,

pervisory authority under the Act is limited to review of

See, eg. Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777,

780-81 (3d Cir. 1987); Sierra Club v. Indiana-Kentucky Electric Corp.,

716 F.2d 1145, 1148 (7th Cir. 1983); Florida Power & Light Co. v.

Costle, 650 F.2d 579, 588 (5th Cir. 1981); Mision Industrial, Inc. v.

EPA, 547 F.2d 123, 129 (ist Cir. 1976).

state actions; unless a state fails to promulgate a SIP,

EPA is not permitted to promulgate SIP requirements

itself.“ As the Eighth Circuit concisely phrased it, the

state proposes, [and] the EPA disposes.” Id. at 1036. Un-

der the statute, EPA has only two choices in responding

to a SIP revision, approval or disapproval. There is no

middle course. Train v. Natural Resources Defense Coun-

cil, 421 U.S. at 79-80.

By ignoring the four-month rule, however, EPA has

effectively created for itself a third option, and thus has

assumed greater powers than Congress conferred. If EPA

agrees with a revision, it approves it. If EPA disagrees

with the revision the Agency simply ignores it, often for

years at a time.“ This pocket veto power is nowhere

authorized in the statute, and it is directly contrary to

Congressional intent that the states, not EPA, have the

authority to choose among alternative regulatory options

for implementing the Act. Bethlehem Steel Corp. v. EPA,

782 F.2d 645, 650 (7th Cir. 1986). Where EPA pocket

*When a state fails to promulgate a SIP (or fails to revise and

resubmit a SIP that EPA has validly disapproved), EPA may, after

compliance with additional requirements, promulgate a SIP

on behalf of the state. 42 U.S.C. § 7410(c). If the Agency finds that

an existing SIP no longer satisfies the statute, it may require the state

to revise it. 42 U.S.C. aalen)

By delaying action, EPA has effectively imposed on the state its

decision to recognize and enforce the original SIP, contrary to the

considered choice made by the state to amend the SIP.

In Indiana & Michigan Electric Co. v. EPA, 733 F.2d 489 (7th

Cir. 1984), the State of Indiana promulgated a SIP that included both

beyond the statutory four- i

Agency appropriates for itself the de facto power to ef-

fectively disapprove a SIP through inaction—all without

having to comply with the procedural and substantive lim-

itations on such disapproval that would otherwise apply

under Section 110(aX2) of the Act.” In short, pocket vetoes

hold the states’ legitimate policy choices hostage to EPA's

dilatory schedule.

In numerous cases decided since the 1970 amendments

to the Act, the courts—including this Court—have stressed

that the statute means what it says on the scope of EPA

authority in this area, and that the powers expressly

granted the Agency under the Act are the only ones that

it possesses. Thus, for example, this Court held in Union

Electric Co. v. EPA, 427 U.S. 246 (1976), that EPA may

not consider in its SIP review process factors, such as

technical feasibility, that Section 110(aX2) of the statute

does not expressly permit it to consider. The courts have

also stressed that the provisions of Section 110 are integral

to the statutory scheme, and that EPA may not ignore

those provisions—or invent new devices—where the effect

is to increase EPA's involvement in the promulgation and

implementation of SIPs at the expense of the states.”

“A “pocket veto" of a SIP revision also may have the effect of

denying states and interested parties any opportunity for judicial re-

view, since there is arguably no final agency action on which review

may be sought.

For example, although EPA is permitted under certain circum-

stances to approve a SIP in part and disapprove it in part, it may not

do so whore the effect would be to render the approved portion of the

SIP more stringent than the state intended. Bethlehem Steel Corp v.

Gorsuch, 742 F.2d at 1037; Indiana & Michigan Electric Co. v. EPA,

733 F.2d 489 (7th Cir. 1984), see State of Michigan v. Thomas, 805

F.2d 176, 186 (6th Cir. 1986). If EPA finds that a plan requirement

is not sufficiently stringent to achieve national standards, then the

Agency must follow the procedures established under the Act for pro-

These decisions, and the mischief created by EPA inaction,

underscore the need to ensure that EPA acts on SIP re-

visions within the four-month statutory period.

II. EPA’S FAILURE TO TAKE PROMPT ACTION UPON A

SIP REVISION BARS AGENCY ENFORCEMENT OF IN-

CONSISTENT PROVISIONS OF THE PRE-EXISTING

SIP.

Given EPA's obligation to act upon SIP revisions within

four months and, as discussed below, EPA's deliberate

policy of ignoring this obligation, the question presented

is whether EPA should be barred from enforcing pre-ex-

isting SIP regulations that the states have revised. This

issue has so far been considered by four courts of appeals,

which have adopted different approaches to dealing with

the problem. We submit that only the enforcement bar

adopted by the court in American Cyanamid properly im-

plements the statute.

A. Federal Enforcement Of SIP Requirements That

A State Has Sought To Change Is Inconsistent

With The Primary Role Of The States Envisioned

In The Statute.

In American Cyanamid Co. v. EPA, the Fifth Circuit

reviewed an EPA administrative penalty determination un-

der Section 120 of the Clean Air Act.“ In that case, the

State of Louisiana had promulgated a SIP revision in 1982

that would permit American Cyanamid to instal] advanced

mulgation of a substitute requirement; it may not avoid those proce-

dures through a partial approval that distorts the state s plan to achieve

the desired stringency. Bethlehem Steel, 742 F.2d at 1035.

„Under Section 120, EPA is empowered to impose administrative

penalties on noncomplying sources. Section 113 of the Act, under which

this action arises, permits EPA to seek civil penalties and injunctive

relief through an action in federal district court. The distinction between

these two enforcement remedies is not important for purposes of the

issues currently before the Court. See United States v. Alcan Foil

Products, supra, slip op. at 9-10.

810 F.2d at 499. The court therefore held that “EPA may

not collect a penalty for the period between (1) four months

after a state submits a proposed revision and (2) the date

the EPA rejects that revision. Jd. at 500.

The Fifth Circuit’s decision in American Cyanamid ex-

pressed concern with the impact of EPA's deliberate dis-

regard of the states’ prerogatives under the Act:

“Where, as here, the state has proposed a revision

to its SIP which clearly authorizes local businesses to

act in accordance with it without running afoul of the

See generally, Chevron US.A., Inc. v. Natural Resources

Council, 467 U.S. 837 (1984). As in this case, the SIP revision was

promulgated in response to a published EPA policy.

menting standards and enforcing the Clean Air Act.’

810 F.2d at 500. Thus, the court pointed out, the obvious

unfairness of the situation to American Cyanamid was al-

most beside the point:

Me emphasize the importance of the EPA acting

not for the benefit of American Cyanamid, but for

the benefit for the State of Louisiana which is by

statute designated to play a significant cooperating

role with the EPA.

As the Fifth Circuit recognized, EPA enforcement of a

pre-existing SIP that the state has attempted to change

is fundamentally inconsistent with Congress s intent that

states play the primary role in promulgating and imple-

the statute s carefully crafted balance of state and federal

authority.

“Id. The Fifth Circuit recently held that a similar bar applies

enforcement of EPA's belated disapproval of a delayed

der issued by a state under Section IId) of the Act. General

Corp. » EPA, 871 F.2d 495 (Sth Cir. 1989). In that

sought to disapprove an order issued by the State of Texas.

the statutory deadline for EPA review had long and

the order itself had ceased to be effective by its own terms.

Circuit held that belated EPA disapproval of the order under

circumstances could not be effective for purposes of enforcement.

court found that permitting effective EPA disapproval in such a

would interfere with the “authority of the states as the primary

ulators of air quality under the Clean Air Act.” Jd. at 499-500.

11347

tit

ati

cumstances. Thus, in enforcement against

ican Cyanamid the Fifth Circuit did not sacrifice the

interest of Louisiana citizens in clean air; it vindicated the

right of Louisiana, not EPA, to decide what the public

interest was in that situation.”

Similarly, in this case, the question is not whether the

interest of Massachusetts citizens in clean air should

triumph over EPA’s procedural misconduct; but rather

This conclusion is not dependent upon any assumption about the

ultimate approvability of the SIP revisions at issue. The State’s judg-

ment that some change in its SIP is appropriate must be accorded

substantial deference. Even

mitted revision, it not follow that any revision would be invalid

EPA's concerns. Thus, for example, if EPA had rejected the American

Cyanamid bubble revision within four months, the State might have

original revision in a manner acceptable to EPA. By delaying action

on the revision until after the revised deadline was long past, EPA

deprived the State of these alternatives; indeed, the new paint shop

was operational by the time EPA took final action

whether the Commonwealth of Massachusetts or EPA has

the right to decide how that interest in clean air is to be

accomplished.” If a state is so fundamentally wrong in its

judgment on this point that its decision, embodied in a

SIP or SIP revision, violates federal requirements, then

EPA should disapprove it. But EPA may not simply ignore

a state’s judgment about the interests of its own citizens,

or delay its decision until the issue becomes moot.

In earlier proceedings in this case, EPA has expressed

concern that industries might seek to circumvent regula-

tory requirements and deadlines by having state agencies

adopt frivolous SIP revisions. This idle speculation, in ad-

dition to being insulting to the states, is clearly incon-

sistent with Congress’s own perception and desire that the

states be granted considerable deference in their design

and implementation of SIPs. EPA’s argument on this point

displays EPA’s own disdain for the states and their ability

to make reasoned policy choices in this area. Congress,

however, did not agree with this view, and it is Congress's

view that must prevail.

B. The Remedy Fashioned By The Fifth Circuit In

American Cyanamid Is An Appropriate, Non-In-

trusive Response To EPA's Failure To Comply

With A Mandatory Statutory Requirement.

The Fifth Circuit’s remedy in American Cyanamid re-

stores the balance of federal and state authority under the

Clean Air Act. The key to the Fifth Circuit’s approach is

its deference to EPA: the court did not require EPA to

complete its review of all SIP revisions within four months

(although that is what the statute requires), nor did it

threaten or impose any sanction against EPA for failing

Massachusetts here decided that the long-term interests of its cit-

izens in improved air quality warranted a temporary compliance ex-

tension in return for long-term emissions decreased substantially below

that required by 310 CMR 7.18(7).

to meet this obligation as a general matter. Instead, the

court simply held that EPA may not combine SIP revision

delay with an enforcement action. If EPA wishes to ini-

tiate an enforcement action that is inconsistent with a

pending SIP revision, then it must first act on the revision.

If EPA does not devote resources to timely review of a

revision, then it need not do so, as long as it does not

try to use its resources instead to bring an inconsistent

enforcement action.

Thus, the Fifth Circuit’s approach leaves EPA’s fate in

the Agency’s own hands. There is no permanent bar on

EPA enforcement (unless, of course, the SIP revision is

consistent with the statute and EPA is ultimately obligated

to approve it). If EPA wishes to bring an enforcement

action that is inconsistent with a pending revision, it sim-

ply has to act on the revision first.”

Available evidence suggests that the actual increased

burden imposed on EPA by the American Cyanamid ap-

proach is minimal. The Agency has estimated that, of the

approximately 350 SIP revisions it currently receives each

year from all 50 states, only nine are relevant to enforce-

ment actions by the Agency.“ EPA can hardly argue that

There could, of course, be circumstances under which quick action

is required against a source that presents a substantial and immediate

endangerment to public health. In such cases, however, Section 303 of

the Act expressly grants authority to EPA to seek an emergency re-

straining order in federal district court. 42 U.S.C. § 7603(a). The penalty

provisions of Sections 113 and 120 would not ordinarily be of immediate

importance in such a situation. The effect that a pending SIP revision

might have in a case brought under Section 303 has not yet been

considered by the courts. That issue is certainly not presented in this

case, where EPA did not seek to invoke its emergency authority—and

clearly could not have done so in any event since the source at issue

was already permanently closed at the time the a7“ on was brought.

“EPA, Report of Audit: Review of EPA's Process for Approving/

Disapproving State Implementation Plans and Revisions, E1K6°8-11-

0045-9100210, at 16 (March 1989) (copy lodged with the Clerk of the

Court).

it would be an insurmountable task to identify this handful

of revisions, which amounts to less than one SIP revision

for each of the ten EPA regional offices, for timely review

and action.“

Before the First Circuit, EPA argued that the American

Cyanamid remedy is inconsistent with this Court’s decision

in Brock v. Pierce County, 476 U.S. 253 (1986). In that

case, the Court held that the Department of Labor's failure

to make a finding of misuse of federal grant funds within

120 days of an allegation, as required by the statute, did

not bar the Department from later seeking to recover such

funds. In this case, there is no dispute that EPA may still

disapprove a SIP revision if it fails to do so within four

months and that, once it does disapprove the revision, it

may then enforce the old SIP prospectively.“ The Amer-

ican Cyanamid remedy is thus entirely different from the

one considered in Brock: EPA remains free to disapprove

the revision, but if it does not act within four months, it

may not collect penalties for the interim period.

There is also an important factual distinction between

this case and Brock arising from the context in which the

delay occurred. The Court's opinion in Brock did not sug-

gest that the delay in question was the result of anything

other than negligence on the part of Department officials.

See 476 U.S. at 260. Here, in contrast, the delay is not

simply the result of negligence by EPA officials; it con-

EPA has advance notice of SIP revisions when proposed by a state

so in practice the Agency has several months’ lead time before the

four-month period for EPA review begins to run.

*The American Cyanamid approach is therefore consistent with this

Court's indication in Train v Natural Resources Defense Council, supra,

that a company seeking judicial review of EPA's disapproval of a var-

iance may not rely upon the pendency of such review as a defense to

an enforcement action. 421 U.S. at 92. Under the American Cyanamid

approach, once EPA does act to disapprove a SIP revision, it is free

to enforce the old SIP prospectively, even if the State or a private

party seeks judicial review of that disapproval.

stitutes the accepted and considered policy of the Agency,

which admits that its policy is to ignore the four-month

requirement. See, g., J.A. 103-11; pages

C. The Fifth Circuit's Properly Implements

Congress’s View Of The Reasonable Time For

EPA Review.

The First Circuit declined to follow American Cyanamid

because it assumed, without citing any factual support,

that EPA would not be able to comply with the four-month

rule. 876 F.2d at 1067. EPA’s failure to meet the four-

month deadline is not simply a matter of inadvertence or

inability, however, but rather a deliberate policy of indif-

ference to state policy choices and a decision to use the

SIP review process to assert control over state decisions

in a manner that Congress rejected. The problem stems

not from the limited period that EPA is given to fulfill

its statutory role, but from EPA's efforts to expand its

role into one that cannot be fully performed within the

statutory period.

The First Circuit’s approach in this case thus constitutes

a deliberate second-guessing of Congress’s decision on this

issue. The First Circuit assumed that the four-month rule

Moreover, in Brock, the Departments delay in seeking recovery

had no substantive impact on whether the funds were in fact misspent

and should be recovered. Here, in contrast, EPA is seeking penalties

for a violation that arguably would not have occurred at all if EPA

manner.

alternatives that might have been acceptable to EPA. By delaying to

the point where the issue became moot, EPA completely eliminated

this opportunity.

The First Circuit incorrectly suggested in a footnote of its opinion

that the American Cyanamid approach might render § 110g) of the

Act superfluous. 876 F.2d at 1069 n.6. Section 1100 of the Act, 42

U.S.C. § 7410(g) allows a state to issue temporary emergency suspen-

embodies an error on the part of Congress and that EPA

should be afforded more time by the courts. Yet the court

cited no authority for this assumption, and none exists.

When the statute was enacted, Congress evaluated the

limited supervisory task that it was assigning to the

Agency in evaluating a SIP or SIP revision, and deter-

mined that four months was a reasonable period of time

to perform that task. As a matter of law, Congress has

already established four months as a “reasonable” time

for EPA to act. Any longer period of time is per se un-

reasonable.

EPA's failure to comply with the four-month rule in

reviewing the Massachusetts SIP revision at issue here is

not an isolated case. As discussed above, there have now

been several litigated cases in which EPA has brought

enforcement actions that are inconsistent with SIP revi-

sions that, at the time the suits were brought, had been

pending before EPA for many months, if not years.“

sions of SIP requirements where necessary to prevent a plant from

closing. This section envisions a situation where the state has adopted

a SIP revision to provide relief to the plant, and the state concludes

that a suspension of the previous SIP is appropriate without waiting

for EPA to act on the revision “within the required four month period

Id. The American Cyanamid remedy, in contrast, would bar EPA en-

forcement only after the four month period expires, and thus would

not make § 110(g) superfluous.

The First Circuit apparently interprets § 110g) as requiring that the

state wait until the four month period for EPA action on the SIP

revision expires before issuing the suspension. This interpretation is

not well founded, given the fact that the suspension is only effective

under § 110(g\2) for four months. Moreover, Congress obviously con-

templated that any rare delay that occurred before EPA completed its

review would not last beyond the four month suspension. Otherwise,

§ 110(g) would only serve to delay economic dislocations rather than

preventing them as Congress intended.

* See, eg. American Cyanamid Co. v. EPA, supra (SIP revision

submitted for EPA review more than two years before enforcement

action filed; no final action ever taken on revision); United States v.

supra. Thus, for example, many substantial delays are at-

tributable to the Agency’s “inordinate concern for indi-

vidual actions” and its insistence that SIP requirements

de similar State to State and source to source. 54 Fed.

Reg. at 2216-17. This EPA-imposed requirement of con-

sistency is, of course, directly inconsistent with the statute,

in many cases, EPA delays its review of SIP revisions for

Alcan Foil Products, supra (SIP revision submitted for EPA review

one year before enforcement action filed; EPA disapproved revision

more than a year later, after district court granted summary judgment

for defendant).

See also State Implementation Plan Processing Reform, 54 Fed.

Reg. 2214 (1989).

" See EPA, Report of Audit, supra, at 8, 20-21. The experience of

the Commonwealth of Massachusetts in this case was therefore appar-

ently a typical one: EPA took approximately 33 months to complete

its review of the Massachusetts revision involving the Framingham

facility.

lengthy periods in order to ensure a consistency that Con-

gress intentionally did not require.

Another important source of EPA delay is its deliberate

practice of holding. often for years, final action on pend-

ing SIP revisions pending formulation of new or revised

EPA policies relevant to the revisions.“ The Audit Report

by EPA's Inspector General reveals that this was the cause

of the delay at issue in the American Cyanamid case:

“EPA published an interim policy in December 1982

for reviewing requests for emissions trading. How-

ever, a final policy was not developed until August

1986. In the interim, the review of SIP revisions re-

questing emissions trading was put on hold.

In the case of American Cyanamid, the Agency has still

not taken final action on the revision, which was submitted

more than seven years ago. Obviously, Congress did not

intend that EPA development of policies and guidance doc-

uments to assist the states would take precedence over

timely action on the SIP revisions themselves.”

A related problem has been the “moving target syndrome,” under

which EPA review of a SIP revision that was consistent with EPA

policy at the time it was proposed takes so long that the revision

becomes ir _nsistent with a new or revised Agency policy. Jd. at 2216.

Although it has not yet been fully developed in the record, it appears

that General Motors may well have been the victim of such a change

in EPA policy. The Agency's 1981 policy clearly contemplated—and

indeed encouraged—revisions of the type promulgated by Massachusetts

in this case. Yet, as EPA stated in its proposed disapproval notice in

this case, the Agency apparently later decided that it preferred to

address delays in automobile painting emission requirements through

an enforcement mechanism. See note 6 above.

„EPA. Report of Audit, supra at 12.

EPA has also identified management problems, including excessive

bureaucratic review requirements for even simple SIP revisions, a lack

of accountability within the Agency for timely processing of SIPs, and

the absence of an adequate system for tracking revisions through the

process, as contributing to delays. 54 Fed. Reg. at 2216-17; EPA.

Report of Audit, supra, at 7-9.

EPA has conceded that the lengthy delays in its review

of SIP revisions seriously impede many of the fundamental

goals of the Clean Air Act:

“The EPA is concerned that uncertainty and exces-

sive delays in processing SIPs frustrate the devel-

opment of an optimum State/Federal partnership,

cause confusion for sources regarding applicable reg-

ulations, and generally dampen initiative in State reg-

ulatory programs.”

54 Fed. Reg. at 2214. Congress clearly did not intend EPA

to undertake the detailed, highly bureaucratized review of

SIPs that EPA's extended internal schedules now contem-

plate. man

quires an evaluation by the district court what

constitutes a reasonable time for EPA review * SIP

revisions. In suggesting that the district court should eval-

uate this issue on a case-specific basis, the First Circuit

has all but ignored the fact that the issue is already de-

cided by the statute itself.

III. ALTERNATIVE REMEDIES SUGGESTED BY EPA

AND BY THE COURT BELOW ARE INADEQUATE,

INTRUSIVE, AND CUMBERSOME.

The American Cyanamid remedy is most consistent with

Congressional intent. The remedies proposed by the court

below are entirely ineffective as meaningful remedies for

EPA's failure to comply with the four-month rule, and are

substantially inferior to the American Cyanamid remedy

in achieving this goal. In addition, these alternative rem-

edies would inevitably require substantial and detailed in-

volvement by the lower courts in the day-to-day functioning

of the Agency.

A. Alternative Remedies Are Insufficient To Give Full

Effect To The Primary Role Of The States Under

The Act.

The alternatives that have been suggested to the Amer-

ican Cyanamid remedy simply do not restore the primacy

of state authority intended by Congress that is

away by EPA's noncompliance with the four-month

American Cyanamid is the only remedy that provides EPA

a real incentive to act in a manner that respects and gives

effect to the role of the states under the Act.

EPA's policy of delaying action on SIP revisions for

extended periods of time, coupled with its enforcement of

existing SIPs, inevitably has a serious negative impact on

the states’ ability to ensure that their SIPs reflect devel-

opments and changes in state priorities. Deferrals such as

those involved here call for “hard choices, choices which

the state regulator must make in the first instance. Gen-

eral Motors v. EPA, supra, 871 F.2d at 504. With no

prospect that EPA will even try to act upon revisions in

a timely manner, the states’ practical ability to revise their

SIPs is seriously impaired. This is particularly the case

where the revision involves a short-term change in the

SIP, such as the extension involved here. EPA has con-

ceded that it “should not delay action on a SIP revision

in such a manner as would thwart the state’s intent in

The alternative remedy suggested in the Duquesne decision—

mere deferral of enforcement action with retroactive penalties if the

revision is ultimately disapproved—does even less to address the needs

of the states. As the Fifth Circuit pointed out in American Cyanamid,

“the Duquesne holding provides little or no incentive to the EPA to

abide by § 7410s four-month rule; the EPA loses nothing by its con-

tumaciousness 810 F.2d at 499. The states, on the other hand, lose

just as much as if the courts ignored EPA's disregard of the four-

month rule altogether. As long as EPA has no incentive to speed its

review process, the ability of the states to implement changes in their

plans will be effectively frustrated.

requesting the SIP revision. Although EPA has given

lip service to the need for timely action, the Agency's

ee ee en See pp. 28-31

ulation under the Clean Air Act be a flexible, continuously

re ean dl eatlte

source in any given location will inevitably

of emissions from that source and from other sources, the

overall air quality in the area, the availability of control

technology, the cost of that technology, the economic im-

portance of the source 's operations to the state, the en-

factors. Virtually all of these factors are subject to change

over time. By denying the states an effective ability to

revise their SIPs to reflect such changes, EPA denies the

states the ability to tailor their SIPs to their own partic-

ular circumstances, as Congress intended. Moreover, if the

courts were to permit EPA to proceed with enforcement

actions that are inconsistent with SIP revisions, then com-

panies will in the future decline to accept and act upon

changed state requirements embodied in SIP revisions dur-

ing the period (often years) of EPA review.

The First Circuit's alternative remedies condone EPA's

2 ai 8.

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Without an effective remedy for EPA's failure

timely action on a SIP revision, industries will

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simply to add controls to the old facility and meet

SIP deadline. If General Motors

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innovative technologies.

Perhaps the greatest anomaly in enforcement is the

Agency's attempt to seek penalties for conduct that EPA

itself does not necessarily believe to be “wrong.” The

American Cyanamid case itself is a classic example of this

situation. In that case, EPA had been unable to make up

its mind whether the bubble that the company was re-

lying upon was or was not consistent with the Act, even

though the revision incorporating that bubble had been

pending before the Agency for more than two years. Yet

EPA asked the court to confirm substantial penalties

against the company for relying upon In other

words, EPA asked the court to agree to penalize the com-

pany for doing something “wrong” even though EPA itself

still not decided whether the company’s bubble is or is not

consistent with the Act.

C. A Bar On Enforcement Actions That Are Incon-

sistent With Pending SIP Revisions Upon Which

EPA Has Failed To Act Within Four Months Is

Necessary To Preserve The Integrity Of EPA’s SIP

Review Process.

The American Cyanamid remedy is also important as

a mechanism to ensure the fair and even-handed review

of SIP revisions by EPA. As the Fifth Circuit pointed out,

it will be difficult, if not impossible, for EPA to review a

—— ——5 1 —äĩ

there is a substantial danger that permitting such enforce-

ment actions to proceed may encourage the EPA to reject

[SIP] revisions that it should accept. 810 F.2d at 499.

As a practical matter, once the enforcement proceeding

has begun, officials will inevitably be “reluctant to approve

[a state’s] revision and admit that [the company] is not

liable for noncompliance after all. Jd. In those circum-

stances, “EPA's even-handed administration of the Act

will be open to substantial question. Id.; see also General

Motors Corp. v. EPA, 871 F.2d 495, 501 (5th Cir. 1989).

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This concern is particularly strong in this case. After

July and August 1987, when the old Framingham paint

facility shut down and the new deadline established by the

SIP revision passed, the revision ceased to have any rel-

evance whatsoever in the regulatory context. After that

point, the revision, and EPA's review of it, had continued

relevance only to this enforcement action which itself was

filed after the regulatory issue had become moot.“ EPA's

act of publishing its final disapproval the day its brief was

due and filed in the First Circuit unmasked its pretense

of objectivity; this action served no purpose except to sup-

port the Agency’s enforcement efforts in this proceeding.

Because the SIP revision in this case was by its nature

temporary, EPA's delay raises special concerns. If EPA

acts promptly, it must consider the merits of the SIP

revision and, if it has objections, advise as to what might

be done to meet these objections. If EPA fails to act, the

state and the company are without guidance or options.“

primary role of the states.

There is a very significant practical difference between the potential

internal tensions in EPA's role that the First Circuit identified and

the even stronger tensions that are created when EPA commits itself

publicly to an enforcement action without first completing a regulatory

decision that might have the effect of mooting that action. In such a

case, there will be extremely strong pressure on Agency officials to

disapprove the revision in order to avoid subjecting the Agency to

criticism for wasted resources and unfair harassment of the regulated

community.

“EPA made it clear as early as December 1986, when it published

its Notice of Proposed Rulemaking, that it was considering the Mas-

sachusetts revision and the Agency's enforcement strategy as a single

package and was inclined to the view that ‘‘[e]xtensions of the Decem-

ber 31, 1985 date should instead be obtained through an enforcement

mechanism. 51 Fed. Reg. 43394, 43395 (1986). The Agency thus con-

ceded that its regulatory and enforcement decisions were part of a

single, combined strategy in which enforcement would be given priority.

At that point, objective review of the revision became a practical im-

possibility.

—

General Motors v. EPA, supra, 871 F.2d at 500. When

EPA dawdles not only beyond“ the statutory four month

period but, as happened here, “past the expiration date

of [the SIP revision], the EPA’s review of the [SIP re-

vision] necessarily takes on an abstract, almost counter-

factual character.” Jd. Once the Agency has decided to

pursue enforcement, EPA is likely to disapprove the SIP

for reasons that are simply window dressing for its en-

forcement action. The filing of an enforcement action be-

fore the regulatory process has been completed totally

skews the regulatory process. Id. at 501.

One need not presume actual misconduct on the part of

EPA officials in order to recognize that such a situation

seriously undermines the federal-state partnership upon

which the Clean Air Act is based. Where, as here, EPA’s

delay continues for so long that completion of the review

process has no practical purpose other than support of the

Agency's commitment to an enforcement action, there will,

at minimum, inevitably be a strong appearance of impro-

priety. Common sense suggests that something is amiss

when an agency purports to disapprove an expired order

,after the fact.“ Such an appearance undermines confi-

"dence of the public and the regulated community that SIP

revisions will be reviewed by the Agency on their merits,

unprejudiced by extraneous Agency priorities. An appear-

ance of bias may discourage states from revising SIPs

containing innovative solutions to attain air quality stand-

ards. By creating the appearance that its review is in fact

influenced, if not governed, by such extraneous factors,

EPA does a substantial disservice both to its state partners

and to the public.

The Fifth Circuit's approach in American Cyanamid

serves to further the “even-handed administration of the

General Motors v. EPA, supra, 871 F.2d at 504.

pressure on EPA to disapprove SIP revisions in cases

subject to enforcement actions will continue unabated. In

this respect as well, therefore, the Fifth Cireuit's approach

is clearly superior to that of the First Circuit.

D. The American Cyanamid Remedy, Unlike Other

Proposed Remedies, Does Not Require Extensive

And Continuing Judicial Involvement In EPA's Al-

location Of Agency Resources.

In contrast to the First Circuit’s two- fold remedy, the

American Cyanamid enforcement bar involves relatively

little judicial interference with EPA's administrative and

enforcement decisions. EPA is left entirely free to decide

when it will act on a SIP revision. It is also left entirely

free to prosecute any enforcement action that it chooses—

provided that it first acts on any SIP revision that, if

approved, would be inconsistent with such an action.“ How

EPA makes these decisions, and how it allocates its re-

sources to support them, is left entirely to the Agency's

discretion, and the courts would not examine how that

discretion is exercised.

The alternative remedies proposed by the First Circuit

in this case are a very different matter. The First Circuit

suggested that there should be two principal remedies

available for dealing with EPA's delay: (1) consideration

by the district court in a penalty action of the reasona-

bleness of the delay as a factor relevant to the amount

As noted at pp. 25-26 above, this should not be difficult for EPA

to accomplish.

of penalties, and (2) a civil action pursuant to Section

304(aX2) of the Act to compel EPA to act.“

The First Circuit’s penalty reduction” approach would

result in intense judicial examination and involvement in

EPA's internal management. If the “reasonableness” of

EPA's delay is a factor relevant to the determination of

penalties, then the way in which EPA goes about decid-

ing how to conduct its review of the revision, including

its internal schedule for review, the manpower assigned

to the project, and similar matters, would be open to ex-

amination.“ The court would have to decide, inter alia,

whether the Agency should have more re-

sources to reviewing the particular revision at issue, or

whether the review process should have been managed

more efficiently. Ultimately, the court would be required

to examine and opine on the efficiency and reasonableness

of EPA's internal management Obviously, this burden-

876 F.2d at 1067-68. Section 30 a2) authorizes a civil action by

“any person to compel EPA “to perform any act or duty under this

Act which is not discretionary... 142 U.S.C. § 7604(a,(2).

In stating the relevant standard for judging EPA's delay as one

the Agency act within a specific period of time.

“The district court may also become enmeshed in consideration of

the merits of EPA's decision to disapprove the SIP revision, even

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of the court of appeals. 42 U.S.C. § 7607(by1).

“ See, eg Natural Resources Defense Council v. Thomas, 705 F.

Supp. 1, 4 (D.D.C. 1988). In many cases, such a defense would pre-

sumably require factual findings following a trial. In such cases, the

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“In this regard, we would note that Congress can hardly have in-

For example, EPA missed—in many cases by years—the statutory

The courts that have addressed EPA's failure to comply with the

four-month rule have treated such compliance as a nondiscretionary

duty. See p. 14, supra. This treatment is consistent with this Court's

rulings in Train v. Natural Resources Defense Council and Union Elec-

tric Co. v. EPA that the requirements of Section 11a) are mandatory

in nature. See Train, 421 U.S. at 79-80; Union Electric Co.

at 256.

delay, once the interests of the states themselves

F.2d at 501, n.11 (emphasis added).

view program. Again, this is neither a result Congress

intended a function for which the courts are best

suited.

What the courts are well-equipped to do is to decline,

as the Fifth Circuit did in American Cyanamid, to become

parties to EPA's deliberate policy of flouting the proce-

dural requirements of the Clean Air Act. By bringing en-

One wonders why EPA would support the First Circuit's mandamus

remedy given its claim that it cannot meet the four-month deadline in

any event.

The courts have in certain cases recognized that there may be cases

in which it is simply impossible for EPA to meet a statutory deadline.

However, the courts have stressed that:

fact inconsistent with the Act. That means that if the

company would not be in violation if E

pending SIP revision, EPA must first act to

review of that revision before bringing an enforcement

action.

of Appeals for the First Circuit be reversed and that this

case be remanded with instructions that an order be en-

tered affirming the judgment of the District Court.

Respectfully submitted,

TuHeopore L. GARRETT

Counsel f Record

Sonya D. WINNER

Covincton & BURLING

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-5398

Counsel for Petitioner

APPENDIX

Pertinent provisions of the Clean Air Act, 42 U.S.C.

§ 7401, et al., are as follows:

§ 7407. Air quality control regions

(a) Responsibility of each State for air quality; submis-

sion of implementation plan

Each State shall have the primary responsibility for as-

suring air quality within the entire geographic area com-

prising such State by submitting an implementation plan

for such State which will specify the manner in which

national primary and secondary ambient air quality stand-

ards will be achieved and maintained within each air qual-

ity control region in such State.

§ 7410. State implementation plans for national primary

and secondary ambient air quality standards

(a) Adoption of plan by State; submission to Adminis-

trator; content of plan; revision; new sources; in-

direct source review program; supplemental or

intermittent control systems

(1) Each State shall, after reasonable notice and public

hearings, adopt and submit to the Administrator, within

nine months after the promulgation of a national primary

ambient air quality standard (or any revision thereof) un-

der section 7409 of this title for any air pollutant, a plan

which provides for implementation, maintenance, and en-

forcement of such primary standard in each air quality

control region (or portion thereof) within such State. In

addition, such State shall adopt and submit to the Ad-

ministrator (either as a part of a plan submitted under

the preceding sentence or separately) within nine months

after the promulgation of a national ambient air quality

secondary standard (or revision thereof), a plan which pro-

vides for implementation, maintenance, and enforcement

of such secondary standard in each air quality control re-

gion (or portion thereof) within such State. Unless a sep-

arate public hearing is provided, each State shall consider

its plan implementing such secondary standard at the hear-

ing required by the first sentence of this paragraph.

(2) The Administrator shall, within four months after

the date required for submission of a plan under paragraph

(1), approve or disapprove such plan, or any portion

thereof. The Administrator shall approve such plan, or any

portion thereof, if he determines that it was adopted after

reasonable notice and hearing and that—

(A) except as may be provided in subparagraph (Ii) in

the case of a plan implementing a national primary am-

bient air quality standard, it provides for the attainment

of such primary standard as expeditiously as practicable

but (subject to subsection (e) of this section) in no case

later than three years from the date of approval of such

plan (or any revision thereof to take account of a revised

primary standard); and (ii) in the case of a plan imple-

menting a national secondary ambient air quality standard,

it specifies a reasonable time at which such secondary

standard will be attained;

(B) it includes emission limitations, schedules, and time-

tables for compliance with such limitations, and such other

measures as may be necessary to insure attainment and

maintenance of such primary or secondary standard, in-

cluding, but not limited to, transportation controls, air

quality maintenance plans, and preconstruction review of

direct sources of air pollution as provided in subparagraph

(D).

of appropriate devices, methods, systems, and procedures

necessary to (i) monitor, compile, and analyze data on am-

bient air quality and, (ii) upon request, make such data

available to the Administrator;

(D) it includes a program to provide for the enforcement

of emission limitations and regulation of the modification,

construction, and operation of any stationary source, in-

cluding a permit program as required in parts C and D

and a permit or equivalent program for any major emitting

facility, within such region as necessary to assure (i) that

national ambient air quality standards are achieved and

maintained, and (ii) a procedure, meeting the requirements

of paragraph (4), for review (prior to construction or mod-

ification) of the location of new sources to which a stand-

ard of performance will apply:

(3XA) The Administrator shall approve any revision of

an implementation plan applicable to an air quality control

region if he determines that it meets the requirements of

paragraph (2) and has been adopted by the State after

reasonable notice and public hearings.

(B) As soon as practicable, the Administrator shall, con-

sistent with the purposes of this chapter and the Energy

Supply and Environmental Coordinator Act of 1974 [15

U.S.C. 791 et seq.], review each State’s applicable imple-

mentation plans and report to the State on whether such

plans can be revised in relation to fuel burning stationary

sources (or persons supplying fuel to such sources) without

interfering with the attainment and maintenance of any

national ambient air quality standard within the period

permitted in this section. If the Administrator determines

that any such plan can be revised, he shall notify the State

that a plan revision which is submitted by the State shall,

after public notice and opportunity for public hearing, be

approved by the Administrator if the revision relates only

to fuel burning stationary sources (or persons supplying

fuel to such sources), and the plan as revised complies

with paragraph (2) of this subsection. The Administrator

shall approve or disapprove any revision no later than

three months after its submission.

thereof) approved under this subsection, nor the Admin-

istrator, in the case of a plan (or portion thereof) pro-

mulgated under subsection (c) of this section, shall be

required to revise an applicable implementation plan be-

cause one or more exemptions under section 7418 of this

title (relating to Federal facilities), enforcement orders un-

der section 7413(d) of this title, suspensions under sub-

section (f) or (g) of this section (relating to temporary

energy or economic authority), orders under section 7419

of this title (relating to primary nonferrous smelters), or

extensions of compliance in decrees entered under section

7413(e) of this title (relating to iron- and steel-producing

operations) have been granted, if such plan would have

met the requirements of this section if no such exemptions,

orders, or extensions had been granted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.