Respondents Brief — General Motors Corp. v. United States
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In the Supreme Court of the nited states
OCTOBER TERM, 1989
GENERAL MOTORS CORPORATION, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicuor General
CimpProRD> M. SLOAN
Assistant to the Solicitor General
MARTIN W. MATZEN
Davin C. SHILTON
Attorneys
Depariment of Justice
Washington, D.C. 20530
(202) 633-2217
E. DONALD ELLIOT
General Counsel
Davin P. NOVELLO
TiworTny L. WHLLIAMSON
Atiorneys
Environmental Protection
Agency
Washingion, D.C. 20460
QUESTIONS PRESENTED
1. Whether a four-month time limit governs the En-
vironmental Protection Agency's (EPA's) review of proposed
revisions to State Implementation Plans (SIPs) under the Clean
Aw Act (42 U.S.C. 7410¢a, 3 A)).
2. Whether, if such a time limit is applicable, the proper
remedy for EPA tailure to take final action on a SIP revision
within four months ts to bar the United States from enforcing
an existing SIP until EPA tissues a final decision on the proposed
revision.
TABLE OF CONTENTS
EE EE EE
Te sg cc cecccccecseees
Statutory provisions involved *.....................
EE EEE LEE
A. The statutory framework ..................
B. The proceedings in this case ................
Nee tcc cc cccccocoocs
Argument:
|. The four-month limit for review of original
SIPs under Section 110(a)(2) does not apply to
review of proposed SIP revisions under Sec-
EE a
Il. Even if there is a four-month time limit for
review of SIP revision proposals, EPA is not
barred from enforcing the terms of an existing
SIP once that deadline has passed ..........
A. There is no support in the language or
legislative history of The Clean Air Act
for an enforcement bar ...............
B. Less drastic remedies than an enforce-
ment bar are available to address agency
Ea
EEE Se
TABLE OF AUTHORITIES
Cases:
American Cyanamid Co. v. EPA, 810 F.2d 493
EE a
Ameriwan Petroleum Institute v. Costle, 665 t.2d
1176 (D.C. Cir. 1981), cert. demed, 455 U.S.
Ee a ee
14
24
45
passin
IV
Cases — Continued: Page
Bethlehem Steel Corp. v. EPA, 638 F.2d 994 (7th
Se Sh siccacd bee nceabennewenssséeud bee Ww
Blum vy. Bacon, 457 U.S. 132 (1982) ...... 6... 15
Brock v. Pierce County, 476 U.S. 253 (1986) ...... 12, 24,
W, 31, 32, 33
Buckeye Power Power, Inc. v. EPA, 481 F.2d 162
(6th Cir. 1973), cert. denied, 425 U.S. 934
SE sccadedecésdasdsdboveddandesenecess« 20
Chevron U.S.A. v. Natural Resources Defense
Council, 467 U.S. 837 (1984) ... 2... ee eee 3,4
Costle v. Pacific Legal Foundation, 445 U.S. 198
SE cnncécducudsbbveemescoeuns + ccecdphes 20
Council of Commuter Organizations v. Gorsuch,
a es SEED ccccccdbesecccsccs 14
Council of Commuter Organizations v. Thomas,
799 F.2d 879 (2d Cir. 1986) ................ 14, 33,34
Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) .... 34
Dayton Board of Education v. Brinkman, 433 U.S.
Ss cnchuncsberdesedeuseeatbassecees 15
Duquesne Light Co. v. EPA, 698 F.2d 456 (D.C.
TTT ITT TET TT TT TIT passim
E.1. du Pont de Nemours & Co. v. Train, 490 U.S.
DID CODTID 2 ocr vc cccccvcvesseveccnessvessess 43
EPA v. National Crushed Stone Ass'n, 449 U.S.
a ee ey —
Florida Lime & Avocado Growers, Inc. v. Paul,
i ne... i ceeeeweatekenene’ 7
General Motors Corp. v. EPA, 871 F.2d 495 (Sth
RA ee ee ere 27
Georgia vy. United States, 411 U.S. 526(1973) ..... 33
Gwaltney of Smithfield, Lid. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49 (1987)... 02... .. 19
Hallstrom vy. Tillamook County, 110 S. Ct. 304
ST cdicesveskbebenseekseutssnesterenses 15, 27
Harrison v. PPG Industries, Inc., 446 U.S. 578
SE d.6 connedestesudnesnseeuneeeveeseeet 2
Cases — Continued: Page
Iilinots State Chamber of Commerce vy. EPA, 775
Fee Ses HED cdvcccecescceerecees 5
Metropolitan Washington Coalition for Clean Air
v. District of Columbia, 511 F.2d 809 (D.C.
Ses Pe cheshedadsaes udnaeetobasansanceds 26
Michigan v. Thomas, 805 F.2d 176 (6th Cir. 1986) . 22
Middlesex County Sewerage Authority v. National
Sea Clammers Ass'n, 453 U.S. 1 (1981)... 0... 40
National Congress of Hispanic American Citizens
v. Usery, 554 F.2d 1196 (D.C. Cir, 1977)... .... 34
National Congress of Hispanic American Citizens
v. Marshall, 626 F.2d 882 (D.C. Cir. 1979) ..... 34
Natural Resources Defense Council v. EPA, 478
Fam es SD ducvésvccccneevesdece 26
Natural Resources Defense Council v. Train, 510
PP | 34
Northwest Central Pipeline Corp. v. State Cor- :
poration Comm'n, 109 S. Ct. 1262 (1989)... ... 37
Ohio” Environmental Council vy. United States
District Court, 565 F.2d 393 (6th Cir. 1977)... . 3
Rainwater v. United States, 356 U.S. 590 (1958) .. . 19
Rodway v. Dep't of Agriculture, 514 F.2d 809
is a: Sake c tl Gwar tt boere. o. .. 20
Russello v. United States, 464 U.S. 16 (1983)... .. 14, 27
Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir.
DEE bn sin SS ed cnseudsvendeburuvies es ae 4
Thigpen v. Roberts, 468 U.S. 27 (1984)... 08... 1S
Touche Ross & Co. v. Redington, 442 U.S. 560
EN ira ete wits ait tna Soo a eee Ee ae | 40
Train v. Natural Resources Defense Council, 42
I 7 2, 12, 25, 28
Transamerica Morteave Advisors, Inc. v. Lewis,
4440S. LE CI979) oP oe ‘ 40
TVA vy. Hill, 437 U.S. 183 (1978) ' 43
Union Electric Co. v. EPA, 427 U.S. 246 (1976) 17
Vi
Cases — Continued: Page
United States v. Alcan Foil Products, 889 F.2d
1513 (6th Cir. 1989), petition for cert. pending,
Pe PEED oveccecccecces 11, 14, 25, 31, 34, 35, 41, 43
United States v. Boccanfuso, 882 F.2d 666 (2d Cir.
— PPPPPPPOTTTTTTCTTITTTT TUTE TTT 33
United States v. Ford Motor Co, 814 F.2d 1099 (6th
Cir.), cert. denied, 484 U.S. 822 (1987) ....... . 26, 42
United States v. National Steel Corp., 767 F.2d
SE Gs CUED co ccccccccccccscoccosecet 20
United States v. SCM Corp., 667 F. Supp. 1110 (D.
i Ch dv nadduneuabeu seeeUeeseduveutees 43
United States Steel Corp. v. EPA, 605 F.2d 283
(7th Cir.), cert. denied, 444 U.S. 1035 (1979) ... 20
United Steelworkers of America v. Rubber Manu-
facturers Ass'n, 783 F.2d 1117 (D.C. Cir, 1986). . 23
United States v. Wheeling-Pitisburgh Steel Corp.,
818 F.2d 1077 (3d Cir. 1987) .... 2... 066, 26
Washington v. Yakima Indiana Nation, 439 U.S.
463 (1979) ..... Or ae Ee ea ee _- Eee 15
Statutes and regulation:
Administrative Procedure Act:
SP Us Me cacao: ee ee 12, 20
fF ee 12, 20, 31, 34
Clean Air Act, 42 U.S.C. 7401 ef seq.:
§ 101(ay(3), 42 U.S.C. 7401(ap3) . 6.2... ... 28
§ 107(a), 42 U.S.C. 7407(a) .. 2... ee 2
EE, EE oc dcendeocecccecceces 2
§ 109% apt), 42 U.S.C. 7409 aI) 0. 0.... 2
§ 10% ay MA), 42 U.S.C. 7409(a) IMA)... .. 15
§ 109(ay( 1B), 42 U.S.C. 7409(a 1B)... .. 15
SD RE, DED dcecuceccceeccceccces 2, 6
S Oe Ce. POD occeccecccccescs 18
& 110¢a), 42 U.S.C. 7410fa) .... «eee 25, 28
§ 110(aM 1), 422 U.S.C. 7410(a)01) ..... ... 2, 15, 16
Vil
Statutes and regulations — Continued: Page
§ 110(ap(2), 42 U.S.C. 7410(apQ2) ©... 2, 11, 14,
15, 16, 18, 24
§ 110(ap2MA), 42 U.S.C. 7410(aM 2A) ..... 3, 16
§ 110(ay2MA)(K), 42 U.S.C,
I -Surekcicadanceceaéacss 16
§ 110(ap(3), 42 U.S.C. 7410(a3) 2... 3,9, 18
§ 110(ay 3A), 42 U.S.C. 7410(aM 3A)... 3, 11, 14,
15, 16, 18, 24, 27, 28
§ 110(ay3)(B), 42 U.S.C. 7410(a 3B) 2... 17
§ 110(c), 42 U.S.C. 7410fc) . 2. eee 25
§ 110(ch 1), 42 U.S.C. 7410001) ©. 2. 17
§ 110(d), 42 U.S.C. 7410(d) .. 2. 2... 3, 12, 25,
37, 41, la
fk. §& SS 0 ee 27
§ 110¢1)1), 42 U.S.C. T4100) © 28
§ 110(g), 42 U.S.C. 7410(g) .......... 18, 29, 27, la
FO ae 9, 11, 12, la
§ 1iMap, 42 U.S.C. 740Ma).............55, 3
§ 11 Mal), 42 U.S.C. 741Mand) ........... 11
§ 113(aM2), 42 U.S.C. 74138ap2) ... 2.6... 25
§ 11 ¢b,M2), 42 U.S.C. 741M bd)... .. 3, 10, 34, 35, 38
§ 113(b), 42 U.S.C. 7413 b,M2) 2... 12, 25, 43
SD ORR, Ge Sieiiis CUED ccccccccccevecce 3
QR Ge is PUI cov ccccccscecs 7,17, 40
§ 113402), 42 U.S.C. 7413802)... 2... aa
§ 11 Md 10), 42 U.S.C. 741 MGMIO) 8... 26
a oc eeeeet ce
§ 120, 42 U.S.C. 7420 ....... a teins thant 11, 24, 43
§ 12000 3MC), 42 ULS.C. P420G IMC)... 43
Fi EE SE I Ja
§ 172¢b,(2)-43), 42 U.S.C. 7502(b,(2)-3) ©... 6, 8
§ 172¢b,(3), 42 U.S.C. 7502 bMS) 2... 38
§ 172(b)6), 42 U.S.C. 7502(bN6) 26... Ww
ee Ww
es es oc checene ce 3
SD Be, Ge ee FEED oc ncccccccccsccce 33,34
vill
Statutes and regulation — Continued:
§ 304(aX(1), 42 U.S.C. 7604(ay{1) ....-......
§ 304(ap(2), 42 U.S.C. 7604(ax2) ....-..
§ 304(b)(1)(B), 42 U.S.C. 7604(b) 1B)... ..
§ 304(f)(1), 42 U.S.C. T604(IL) ©...
§ 304(1)(3), 42 U.S.C. 7604(1)3) .. 2... nich
§ 307(b), 42 U.S.C. 7607(b) ........ babesqee
§ 3O7(bM1), 42 U.S.C. TOOT(DMI) --.-..- 6.
§ 307(b,(2), 42 U.S.C. 7607(b)2) .........-.
Clean Air Act Amendments of 1970, Pub. L. No.
ee
nn. . co ececcecees
§ 109, 84 Stat. 1679-1680 ..................
§ 109%(a)(1), 84 Stat. 1679-1680 .............
§ 110(aM1), 84 Stat. 1680 ..... 2... 2.2... ...
§ 110(ap(2), 84 Stat. 1680-1681 .............
§ 110(a 2A), 84 Stat. 1680 ...............
Ee
ns cc meccnncuceee
on. ss cccacsscescse
i ns cc knedeneee
SE a
Clean Air Act Amendments of 1977, Pub. L. No.
PES PTTTCCT CTT TT TTT TT
§ 107(b), 91 Stat. 692-693 (42 U.S.C.
DT AchGichs an aeecaueeeseescoces ce
§ 110(an 21), YI Stat. 694 (42 USC.
Ee eeis bees 6560666686000 0
§ 11d), 9 Stat. 704 (42 U.S.C. 741% bd)...
§ 120, 91 Stat. 715-719 (42 U.S.C. 7420)
§ 11G(dH 2M A), YI Stat. 718 (42 USC.
ET civnnbeahescesdeees cng
§ LLOCEM IMC), VI Stat. 718 (42 USC,
T4IMGHINC)) .... 2...
§ 1711), OE Stat. 746 (42 U.S.C. 7S0101))
§$ 171¢2), Ot Stat. 746 (42 U.S.C. 750102)
ow ww Ww WN OO
IX
Statutes and regulation — Continued:
§ 172(aMl), 91 Stat. 746 (42 U.S.C.
EEE I pea es ‘pee
§ 172(ap2), 91 Stat. 746-747 (42 U.S.C.
a ET ge
§ 172¢b,2), 91 Stat. 747 (42 U.S.C.
en epee eee eeceeés
§ 172¢bM2)43), 91 Stat. 747 (42 ULS.C.
FF
Energy Supply and Ervironmental Coordination
Act of 1974, Pub. L. No. 93-319, § 4(a), 88
Dh nds teks cubed eetedhwodoucet
SE I Gédcnus dddnéuéescntedecaneees
SED ntuthoudceeduceseueteecdéeous Ga
Miscellaneous:
J. Bromberg, Clean Air Act Handbook (1985) .. ..
Congressional Research Service:
1 A Legislative Hoestory of the Clean Aw Act
Amendments of 1970 (Comm. Print 1974) . .
2 A Legislative History of the Clean Air Act
Amendments of 1970 (Comm. Print 1974) . .
4 A Leeslative History of the Clean Aw
Act Amendments of 1977 (Comm. Print
ee ee pes
D. Curne, Aw Pollution: Federal Law and Analysis
Ps SNS ab ssGhbeNeeed danseenn keene kes
EPA, Report of Audit, Review of EPA'S Process
Jor Approving Deapproving State lmplementa-
tron Plans and Revessons EIK*8-11-0045-9100210
(March 1989) . |
EPA, Revised Guidelines on Entorcement of State
Implementation Plan Violations lavoling Pro-
posed SIP Revisions (Aug. 29, 1989)
Executive Order No. 12,291, 46 Fed. Reg. 13,193
(1981)
9
+
Miscellaneous — Continued: Page
46 Fed. Reg. (1981):
GEE Ih is. ovcecks cies seseeeues 21
EE cu cuucuccwecdedvecosvee 6
47 Fed. Reg. (1982):
a cri cee ieeancee neuen 38
50 Fed. Reg. (1985):
eee vauncedenseckdeconsoces 24
aul oo 6 dees oo0 56 sed 0c cereus 24
Fe IOI ono ccvcccsccesscseses 8
53 Fed. Reg. (1988):
cra hodcssquvdh Ll eddenkcanees 9
tras clus ciacteneines oxbenes ease 8, 20
CE Ti tokio ine pebh wenn seue’ 8, 40
54 Fed. Reg. (1989):
ae Da iain cub eenke nee wes 21
EE SN ge EE oe 23
ES EES ee ee eee 21, 22, 24
Ee ee 35
ies chee va Week Ng ess oc cee 36
a 38
55 Fed. Reg. (1990):
SRM b we béds0e 950 doles sec cennme 23
ee 23
H.R. 6161, 95th Cong., Ist Sess. (1977)... 20.2... 19
H.R. Conf. Rep. No. 564, 95th Cong., Ist Sess.
FE ee er Ree ae ne 19, 28
H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977)... 5, 31,
32, 40, 42
Regulatory Reform Act: Hearings Before The
Subcomm. on Administration Law and Govern-
mental Relations of the House Comm. on the
Judiciary, 98th Cong., Ist Sess. (1983) ......... 21
Xl
Miscellaneous — Continued: ™
1 W. Rodgers, Environwiental Law. Air and Water
Sg a re td ne
S. Rep. No. 127, 95th Cong., Ist Sess. (1977)
S. Rep. No. 1196, 91st Cong., 2d Sess. (1970)
Page
3, 31
Jn the Supreme Court of the United States
OCTOBER TERM, 1989
No. 89-369
GENERAL MOTORS CORPORATION, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 2a-18a) is
reported at 876 F.2d 1060. The opinion of the district court
(J.A. 119-125) is unreported.
JURISDICTION
The judgment of the court of appeals (Pet. App. la) was
entered on June 7, 1989. The petition for a writ of certiorari was
filed on September 5, 1989, and granted on December 4, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent provisions of the Clean Air Act, 42 U.S.C. 7401 et
seq., are set Out in the Appendix to petitioner’s brief and in the
Appendix to this brief.
STATEMENT
A. The Statutory Framework
1. In 1970, Congress enacted a comprehensive national pro-
gram tor combating air pollution, Clean Air Act Amendments
(1)
2
of 1970, Pub. L. No. 91-604, 84 Stat. 1676. Before 1970, the
federal role had been limited, and “the States generally retained
wide latitude to determine both the air quality standards which
they would meet and the period of time in which they would do
so.” Train v. Natural Resources Defense Council, 421 U.S. 60,
64 (1975). The results of that approach, however, were “disap-
pointing,” and the 1970 Amendments “sharply increased federal
authority and responsibility in the continuing effort to combat
air pollution.” /d. at 64. Although States continued to “have the
primary responsibility for assuring air quality within the entire
geographic area comprising such State” (§ 107(a) of the Clean
Air Act, 84 Stat. 1678), they were now required to comply with
specific federal criteria concerning the content of the air stand-
ards and the timetable for reaching them. Train, 421 U.S. at
64-65.
The basic regime for this new approach to air pollution was set
forth in Sections 109 and 110 of the revised Clean Air Act. Con-
gress charged the EPA Administrator with developing “national
** * ambient air quality standards” (NAAQS). § 109(a)(1), 84
Stat. 1679; 42 U.S.C. 7409(a)(1).' The NAAQS were of two
types — primary (those necessary “to protect the public health” (84
Stat. 1680)) and secondary (those necessary “to protect the public
welfare” (ibid.)). The EPA Administrator was required to pro-
pose NAAQS for known air pollutants within 30 days, and
finalize the standards within 90 days thereafter. § 109(a)(1); 42
U.S.C. 7409(a)(1). The revised Act then required each State to
develop and submit to EPA, within nine months after promulga-
tion of the NAAQS, a state implementation plan (SIP) to achieve
and maintain the NAAQS within the State. § 110(a)(1), 84 Stat.
1680; 42 U.S.C. 7410(a,(1). For its part, EPA was then required
to determine, within four months of the date required for sub-
mission of original SIPs, whether a SIP met certain statutory re-
quirements (§ 110(a)(2), 84 Stat. 1680; 42 U.S.C. 7410(a)(2)),
including attainment of applicable primary NAAQS, “as ex-
peditiously as practicable” but generally no later than three years
“Ambient air” ts “the statute's term for the outdoor ai used by the general
public.” Train vy. Natural Resources Defense Council, 421 US. at 65,
3
from the date of approval of a SIP (§ 110(a)(2)(A), 84 Stat.
1680; 42 U.S.C. 7410(a)(2)(A)).
The 1970 Amendments also set forth a procedure for SIP
revisions. The Act requires EPA to approve revisions to existing
SIPs if it determines that a revision meets the requirements ap-
plicable to original SIPs, and that it was adopted by the State
after notice and public hearings. § 110(a)(3), 84 Stat. 1681; 42
U.S.C. 7410(a)(3)(A).? Unlike the provision for review of
original SIPs, the provision for review of SIP revisions contains
no express time limit. Moreover, the 1970 Amendments
specified that, for purposes of the Act, “an applicable im-
plementation plan” is a plan which has been approved by EPA.
§ 110(d), 84 Stat. 1682; 42 U.S.C. 7410(d).
The 1970 Amendments provided various enforcement
mechanisms. The revised Act empowers EPA to order sources
of pollutants to comply with “an applicable implementation
plan” (§ 113(a), 84 Stat. 1686; 42 U.S.C. 7413(a)) and to seek in-
junctive relief against a source violating such a plan or violating
an EPA order (§ 113(b), 84 Stat. 1687; 42 U.S.C. 7413(b)). The
Amendments also prescribed criminal penalties for knowing
violations of “applicable implementation plan{s]” and EPA
orders (§ 113(c), 84 Stat. 1687; 42 U.S.C. 7413(c)). In addition,
Congress authorized citizen suits for injunctions against
violators, in the absence of government enforcement (§ 304, 84
Stat. 1706; currently codified at 42 U.S.C. 7604).
2. In 1977, Congress again significantly amended the Clean
Air Act. Clean Ait Act Amendments of 1977, Pub. L. No.
95-95, 91 Stat. 685. The legislation was, at least in part, a
response to widespread failure to meet the attainment deadlines
in the 1970 Amendments. See, e.g., S. Rep. No. 127, 95th
Cong., Ist Sess. 12 (1977). See also Chevron U.S.A. v. Natural
Resources Defense Council, 467 U.S. 837, 847 (1984). Among
other provisions, the 1977 Clean Air Act Amendments added to
the Act the concept of a “nonattainment area” —an area where
air quality falls short of NAAQS. § 171(2), 91 Stat. 746; 42
* Betore 1974, this provision had been § 110(aX3) of the Clean Air Act,
rather than § 110(a)3)(A). See Energy Supply and Environmental Coordina-
ton Act of 1974, Pub. L. No. 93-319, § 4¢a), 88 Stat. 256
4
U.S.C. 7501(2). The Amendments required each State contain-
ing a nonattainment area to prepare and secure EPA approval
of a new SIP by July 1, 1979. §§ 110(a)(2)(1), 172(b), 91 Stat.
694, 746; 42 U.S.C. 7410(a)(2)(1), 7502(b). The deadline for at-
tainment of the primary NAAQS in a nonattainment area was
extended to December 31, 1982. § 172(a)(1), 91 Stat. 746; 42
U.S.C. 7502(a)(1). Further extensions were permitted for
“photochemical oxidants” (ozone) and carbon monoxide, but
only if the State demonstrated that attainment was not possible
by 1982, despite the implementation of all reasonably available
measures, and that attainment would be achieved “as ex-
peditiously as practicable but not later than December 31,
1987.” § 172(a)(2), 91 Stat. 746-747; 42 U.S.C. 7502(a)(2). The
nonattainment area SIPs, moreover, were required to contain
specific provisions designed to achieve NAAQS as expeditiously
as possible. See Chevron, 467 U.S. at 849. To this end, the re-
vised Act required that the plan revisions must “provide for the
implementation of all reasonably available control measures as
expeditiously as practicable” and require, in the interim,
“reasonable further progress” toward reductions in emissions.
§ 172(b)(2)-(3), 91 Stat. 747; 42 U.S.C. 7502(b)(2)-(3).
The 1977 Amendments also strengthened the Act's enforce-
ment provisions. Congress avthorized EPA to seek civil
penalties; the Administrator could now bring an action in
district court for civil penalties of up to $25,000 per day for
violations of various provisions of the Act, including violations
of an “applicable implementation plan.” § 113(b), 91 Stat. 704;
42 U.S.C. 7413(b). In determining the amount of a civil penalty,
moreover, the district court is directed to “take into considera-
tion (in addition to other factors) the size of the business, the
economic impact of the penalty on the businéss, and the
seriousness of the violation.” /bid. Congress also gave the EPA
additional authority to impose administrative noncompliance
penalties; the Administrator could now assess administratively a
noncompliance penalty against any “major stationary source”
* Petitioner's statement that “(flor ozone the deadline is December 31, 1987”
(Br. 4n.1) is thus, at best, an incomplete statement of the pertinent statutory
provision.
5
in violation of SIP emission limits. § 120, 91 Stat. 715-719; 42
U.S.C. 7420.4 The penalty begins to accrue when EPA issues a
Notice of Noncompliance (§ 120(d)(3)(C), 91 Stat. 718; 42
U.S.C. 7420(d)(3)(C)), and is intended to remove the economic
benefit of delayed compliance and place polluters on the same
economic footing as those who had limited their emissions
through increased anti-pollution expenditures. § 120(d)(2)(A),
91 Stat. 718; 42 U.S.C. 7420(d)(2)(A). See also H.R. Rep. No.
294, 95th Cong., Ist Sess. 72 (1977).
B. The Proceedings In This Case
1. The entire Commonwealth of Massachusetts is a nonat-
tainment area for the NAAQS regarding ozone. See 40 C.F.R.
81.322; J.A. 95. In 1980, EPA approved Massachusetts’ pro-
posed nonattainment area SIP. This SIP. required painting
Operations at automobile assembly plants to meet increasingly
Stringent limits on emissions of volatile organic compounds
(VOCs), which are substances that react with other chemicals in
the atmosphere to form ozone.’ Full compliance was required
by December 31, 1985. Petitioner’s plant in Framingham,
Massachusetts is the only automobile assembly plant in the
State. Pet. App. 6a; J.A. 29.
* A “major stationary source” is “any stationary facility or source of air
pollutants which directly emits, or has the potential to emit, one hundred tons
per year or more of any air pollutant.” 42 U.S.C. 7602()).
> The D.C. Circuit has described the effects of ozone:
Ozone is the primary cause of the ill effects associated with smog, of
which it usually comprises 65-100%. At certain concentration levels,
ozone irritates the respiratory system and causes coughing, wheezing,
chest tightness, and headaches. Due to its irritating nature, ozone can ag-
gtavate asthma, bronchitis, and emphysema. Some studies indicate that
chronic exposure to fairly low levels of ozone may reduce resistance to in-
fection and alter blood chemistry or chromosome structure. Ozone can
destroy vegetation, reduce crop yield, and damage exposed materials by
causing cracking, fading and weathering.
American Petroleum Institute v. Costle, 665 F.2d 1176,1181 (D.C. Cir. 1981),
cert. denied, 455 U.S. 1034 (1982). See also //linois State Chamber of Com-
merce ¥. EPA, 775 F.2d 141, 1143 (7th Cir. 1985) (“Ozone is a significant
component of the health-endangering smog that is one product of modern in-
dustry and transportation”).
6
2. a. On October 20, 1981, EPA published a policy state-
ment discussing the automobile industry’s development of new
technologies for reducing VOC emissions, including conversion
from lacquer paints to the basecoat/clearcoat process (BC/CC).
46 Fed. Reg. 51,386-51,388; J.A. 30-37. EPA announced that it
would entertain proposed SIP revisions intended to allow
automakers to install new technology; it would extend the date
for compliance until 1986, with some plants requiring until 1987
to convert. J.A. 33-34. EPA cautioned, however, that SIP revi-
sions would need to assure continued compliance with Sections
110 and 172 (J.A. 30); Section 172 requires, among other things,
“the implementation of all reasonably available contpol
technology as expeditiously as practicable” and “reasonable fur-
ther progress” toward attainment “in the interim.” § 172(b)(2)-
(3); 42 U.S.C. 7502(b)(2), (3).°
b. Within ten days of EPA’s policy statement, petitioner
submitted requests consistent with the policy statement for three
of its assembly plants in other States; it did not, however, sub-
mit such a request for its Framingham plant. Pet. App. 6a.
More than three years later, in November 1984, petitioner re-
quested that the State extend the December 31, 1985, com-
pliance date by two years (to December 31, 1987) to give peti-
tioner additional time to install emission controls on its lacquer
coating lines. J.A. 38-40. The State did not, however, submit
the request as a SIP revision to EPA.
Eight months later, in June 1985, petitioner changed its plans.
At this point—six months before the ozone emission com-
pliance deadline that had been in effect in Massachusetts for
almost five years—petitioner proposed converting its Fram-
ingham plant to the basecoat/clearcoat process. It requested a
delay of the SIP standard until the end of 1987 (the same date
that it had requested for its earlier emission control proposal).
J.A. 41-45.
* EPA also emphasized that the revisions would “need to be evaluated in
light of their impact on the overall plan and the individual elements, including
emission reductions necessary to demonstrate reasonable further progress
toward attainment of standards.” J.A. 31-32.
7
c. Massachusetts provided public notice and held a hearing
on December 16, 1985, regarding petitioner’s request for an ex-
tension of the SIP compliance deadline. At this hearing, an
EPA representative expressed reservations about the proposed
extension because, among other problems, the proposal made
no attempt to limit emissions during the extension period. J.A.
61-62. On December 30, 1985, one day before the final com-
pliance deadline in the SIP that had been in place since October
1980, Massachusetts submitted to EPA a proposed SIP revision
extending petitioner’s compliance date for ozone emissions on
automobile coating lines to August 31, 1987. J.A. 50-74; Pet.
App. 6a-7a.
3. a. EPA’s Region I office began reviewing the proposed
SIP revision. At the same time, EPA, the Commonwealth, and
petitioner also undertook negotiations in an attempt to resolve
petitioner’s noncompliance with the existing SIP by means of a
Delayed Compliance Order under Section 113(d) of the Act (42
U.S.C. 7413(d)). Pet. App. 7a. Such an Order would have
allowed an extension of the compliance date while requiring an
enforceable schedule of steps toward compliance and protection
from unnecessary emissions during the interim, neither of which
was required by Massachusetts’ proposed SIP revison.
b. On May 30, 1986, five months after its submission of the
proposed SIP revision, Massachusetts requested that EPA delay
action on the SIP revision until June 20, 1986, to allow negotia-
tions to continue on a Delayed Compliance Order, which the
Commonwealth considered a better way to resolve the matter.
J.A. 89-90. Shortly after that period, on July 2, 1986, EPA
Region I sent a draft proposal to disapprove the SIP revision to
EPA Headquarters. J.A. 88.
c. On August 14, 1986, EPA sent petitioner a notice of
violation. The notice informed petitioner that it was in violation
of me applicable SIP. J.A. 75-82. EPA pointed to data
establishing that, from January 1, 1986 to June 30, 1986, the
VOC content in petitioner’s operations at the Framingham plant
considerably exceeded the SIP’s emission limits. J.A. 79.’
” EPA pointed out that the SIP limit for topcoating was 2.8 pounds of VOC
per gallon of coating (excluding water) and that petitioner had used top-
8
EPA’s cover letter noted the ongoing negotiations between
EPA, the State, and petitioner regarding a Delayed Compliance
Order, but warned that, if no agreement was reached in 30 days,
EPA would “decide which other enforcement options to pursue
under Sections 113 and 120 of the Clean Air Act.” J.A. 75-76.
EPA urged petitioner to confer with the Agency and “discuss
the most expeditious method * * * to come into compliance
with the applicable SIP.” J.A. 76.
d. The negotiations regarding the Delayed Compliance
Order did not bear fruit, and the draft proposal to disapprove
the SIP revision, which had been sent on July 2, 1986, was ac-
cordingly reviewed by EPA Headquarters. Pursuant to Ex-
ecutive Order 12291, it was also submitted to the Office of
Management and Budget (OMB). J.A. 96. On December 1,
1986, EPA’s notice of proposed disapproval was published in
the Federal Register. 51 Fed. Reg. 43,394; J.A. 91-96. In the
Notice, EPA pointed out (J.A. 93-95) that the proposed SIP
revision failed to meet several of the criteria for deferral
established in EPA’s 1981 policy statement, and in particular
failed to require the impi*mentation of reasonably available
control technology as expeditiously as practicable, as required
by the Act (§ 172(b)(2), (3); 42 U.S.C. 7502(b)(2), (3)).
e. On June 30, 1987, following receipt of public comment
on the proposed SIP revision, Region I transmitted to EPA
Headquarters a draft of a final decision disapproving the pro-
posed SIP revision. J.A. 88. This draft was reviewed at EPA
Headquarters and again at OMB. 53 Fed. Reg. 36,014. On May
5, 1988, petitioner submitted 405 pages of comments and at-
tachments regarding the proposed disapproval, to which EPA
responded in detail. See 53 Fed. Reg. 36,012 n.1; General
Motors v. Reilly, No. 88-2123 (ist Cir.) (C.A. Dkt. Nos.
69-111). On September 4, 1988, EPA issued a final decision
disapproving the proposed SIP revision; the decision was
coatings with an average content of 5.02 pounds of VOC per gallon of coating
(excluding water); EPA also pointed out that the SIP limit for final repair
coatings was 4.8 pounds of VOC per gallon of coating (excluding water), and
that petitioner had used final repair coatings with an average of 6.18 pounds
of VOC per gallon of coating (excluding water). J.A. 79.
9
published in the Federal Register on September 16, 1988. 53
Fed. Reg. 36,011; see also Pet: App. 7a-8a.*
2. On August 17, 1987, the United States filed a civil en-
forcement action against petitioner under Section 113 of the Act
(42 U.S.C. 7413). J.A. 7-13. The complaint alleged continuous
violations by petitioner — beginning on January 1, 1986—of the
VOC emission standards of the existing SIP. J.A. 11. EPA had
sent a notice of violation to petitioner almost exactly one year
before filing the complaint. EPA had published (some eight
-months earlier) its proposed disapproval of the SIP revision in
the Federal Register; however, EPA Headquarters had not yet
acted on Region I’s draft finai decision of disapproval.
On petitioner’s motion, the district court dismissed the action
in its entirety. The district court construed Section 110(a)(3) to
impose a four-month time limit on EPA’s review of a SIP revi-
sion, and held that, because it exceeded that deadline, EPA was
barred from enforcing the existing SIP for any violations that
occurred before final agency action on the proposed SIP revi-
sion. J.A. 119-125. '
3. The court of appeals reversed and remanded for further
consideration. The court first agreed with the district court that
the four-month deadline on EPA’s review of original SIPs
should also apply to the review of SIP revisions. Although it
found the question “admittedly * * * a close one” (Pet. App.
11a), the court concluded that Congress would not have wanted
the States’ policy choices “to be held hostage to the EPA’s
schedule.” /d. at 12a. The court emphasized that, “by imposing
a four-month deadline on the EPA,” it avoided “the possibility
that the Agency would have assigned a lower priority to SIP
revisions from First Circuit states than to those from states in
circuits that had imposed a-deadline.” /bid.
* On November 11, 1988, petitioner filed a petition for review of EPA’s
denial of the proposed SIP revision in the court of appeals. General Motors v.
Reilly, No. 88-2123 (1st Cir.). That action has been stayed pending EPA ac-
tion On petitioner's request for reconsideration by ihe agency, and pending .
decision in this case.
10
The court of appeals disagreed, however, with the Fifth Cir-
cuit’s holding in American Cyanamid Co. v. EPA, 810 F.2d 493
(1987), that EPA is barred from enforcing an existing SIP for
the interval between the end of the four-month period and the
time when the agency acts on the proposed SIP revision. The
court reasoned that an enforcement bar is too drastic a remedy
for agency delay, especially since it penalizes the public’s interest
in clean air. Pet. App. 14a. The court also found it likely that
EPA would frequently need longer than four months to issue a
considered ruling, and would therefore miss the deadline even
with the incentive of an enforcement bar. /d. at 13a-14a. At the
same time, the court rejected the D.C. Circuit’s alternative ap-
proach in Duquesne Light Co. v. EPA, 698 F.2d 456 (1983). As
the court explained, the D.C. Circuit had held that, if a SIP
revision is ultimately rejected, “penalties may be assessed retro-
actively, with interest, for the entire period after the deadline.”
Pet. App. 13a. Seeking to “steer a middle course between these
two extremes” (Pet. App. 14a), the court concluded that the ap-
propriate remedies for agency inaction are those provided by the
Clean Air Act itself: (1) a suit to compel Agency action under
Section 304(a)(2) (42 U.S.C. 7604(a)(2)), or (2) a request pur-
suant to Section 113(b) (42 U.S.C. 7413(b)) for reduction or
elimination of penalties during any period in which unreason-
able agency delay resulted in prejudice. Jd. at 14a-15a.
With respect to the enforcement action in this case, the see
ond remedy was applicable. The court noted that Section 113(b)
directs district courts, in assessing any penalties, to “take into
consideration (in addition to other factors) the size of the
business, the economic impact of the penalty on the business,
and the seriousness of the violation.” Pet. App. 15a. Thus, the
district court could “decline to award penalties for * * * unwar-
ranted delay.” /bid. The court of appeals noted, “if on remand
in this case, the district court finds that [petitioner] was prej-
udiced by the Agency’s lengthy review and that the delay was
not justified or that some portion of the delay was not justified,
it may reduce the penalties in a manner it sees fit.” /bid. The
court thus remanded to permit the district court to consider
— SE
eS a
petitioner’s claims regarding “the equities of this case” (id. at
17a) and for assessment of appropriate penalties, if any.°
SUMMARY OF ARGUMENT
Section 113 of the Clean Air Act expressly authorizes EPA to
bring actions for injunctive relief and civil penalties against any
person in violation of “any requirement of an applicable imple-
mentation plan.” 42 U.S.C. 7413(a)(1). Petitioner seeks a court-
imposed rule that would limit this explicit grant of authority by
barring enforcement whenever a proposed revision to the ap-
plicable SIP has been submitted to EPA and the agency has not
taken final action on the proposal within four months. The
court of appeals properly rejected this attempt to impose a limit
which Congress never prescribed on EPA’s enforcement
authority.
1. Petitioner’s argument begins with the flawed premise that
the four-month limit for review of original SiPs under Section
110(a)(2) applies to review of proposed SIP revisions under Sec-
tion 110(a)(3)(A). The language of the statute does not support
this interpetation. Section 110(a)(3)(A) requires that the pro-
posed revision “meet[ ] the requirements” of an original SIP (42
U.S.C. 7410(a)(3)(A)); it does not require that EPA act on a
proposed revision within four months. The four-month time
limit for review of original SIPs was part of an elaborate time-
table established in 1970 to ensure that emission limitations,
many of which were already formulated, could be put into place
with maximum speed. There is no evidence that Congress ex-
pected or required equal haste for SIP revision proposals. The
latter frequently involve relaxation or delay of strict emission
* The Sixth Circuit has now agreed with the First Circuit’s analysis in this
case, and has also rejected the American Cyanamid enforcement bar. See
United States v. Alcan Foil Products, 889 F.2d 1513 (6th Cir. 1989), petition
for cert. pending, No. 89-1104. Both this case and Alcan Foil arose in the con-
teg of Section 113 enforcement proceedings; Duquesne Light and American
Cyanamid arose in the context of Section 120 administrative assessments.
Neither the First Circuit nor the Sixth Circuit rested its decision on that
distinction. See Pet. App. 16a & n.4; 889 F.2d at 1518.
12
control requirements. These are, obviously, complicated issues
requiring careful scrutiny by the agency. Rather than the four-
month time limit, the statutory standard for agency timeliness in
acting on SIP revision proposals is the Administrative Pro-
cedure Act’s standard of reasonabieness (5 U.S.C. 555 and
706(1)). And, in view of the applicable administrative and
statutory requirements, as well as the nature and complexity of
the issues, review of SIP revisions for longer than four months
is often entirely reasonable.
.2. Even if a four-month time limit obtains for review of SIP
revisions, neither the statute nor the legislative history reveals
any intent to eviscerate EPA’s authority, after expiration of that
period, to enforce the statute. Section 113 clearly states that
EPA may bring an action to enforce the “applicable imple-
mentation plan” (42 U.S.C. 7413(b)(2)); this Court in Train v.
Natural Resources Defense Council, 421 U.S. 60, 92 (1975), and
many lower courts, have made clear that the existing SIP is the
applicable plan until both the State and EPA have approved a
revision. See § 110(d); 42 U.S.C. 7410(d). Accordingly, three
Circuits —the First, Sixth, and D.C. Circuits—have now con-
cluded that EPA does not lose authority to enforce the existing
SIP even if a SIP revision has been pending for more than four
months.
The Fifth Circuit’s contrary conclusion in American
Cyanamid is unsupported by statutory language or legislative
history, and conflicts with this Court’s decision in Brock v.
Pierce County, 476 U.S. 253 (1986). Brock makes clear that
courts should not assume that Congress intends agencies to lose
their power to act when they fail to meet statutory deadlines,
particularly when there are “less drastic” remedies available. As
the court below found, less drastic remedies are available to deal
with untimely agency action: either a suit by the State or the
source to compel agency action, or a request by the source for a
reduction of civil penalties where agency delay has led to prej-
udice.
Petitioner’s asserted policy reasons for an enforcement bar
cannot override the statutory language and are, in any event,
unpersuasive. The States’ role under the Clean Air Act is ade-
13
quately protected by the remedies specifically provided by Con-
gress to address agency delay; there is no need to infer an addi-
tional remedy not provided by statute and no warrant for doing
so. Indeed, barring the United States from enforcing the ap-
plicable SIP would thwart the clear congressional intent to
remove incentives for delaying compliance with the strict
deadlines of the Act. What is more, a judicially-created bar
would also disserve the States’ and the public’s interest in cleaner
air.
Nor is an enforcement bar needed to address the possibility
that an enforcement action might undermine even-handed con-
sideration of a proposed SIP revision. That speculative possi-
bility does not stem from agency delay, but from Congress’s
decision to assign both enforcement and SIP review responsi-
bilities to the same agency. Even if a decision on a SIP revision
were to be improperly influenced by the pendency of an en-
forcement action, Congress provided an adequate remedy in the
form of direct review of the SIP denial in the courts of appeals,
a remedy which petitioner has invoked in this case. Any possible
prejudice suffered by a defendant in an enforcement action by,
reason of EPA delay in reviewing a SIP revision can be ad-
dressed by the court in assessing penalties. The argument that an
enforcement bar is needed to punish the agency for delay also
fails, because4t is the public, not EPA, that would be hurt if ap-
plicable SIPs could not be enforced.
Petitioner’s policy arguments not only fail to persuade, they
misconceive the role of the courts in interpreting statutes.
Where, as here, Congress has conferred upon an agency an ex-
plicit mandate to enforce “applicable implementation plans,” it
is not the appropriate province of the judiciary to carve out ex-
ceptions in order to create policy-based incentives for ad-
ministrative Management.
14
ARGUMENT
1. THE FOUR-MONTH LIMIT FOR REVIEW OF ORIGINAL
SIPS UNDER SECTION 110(a)(2) DOES NOT APPLY TO
REVIEW OF PROPOSED SIP REVISIONS UNDER SEC-
TION 110(aX3)A)
As the court of appeals recognized, Section 110(a)(3)(A),
which governs review of SIP revisions, does not “contain
language explicitly imposing a four-month deadline on the Agen-
cy.” Pet. App. Sa. Stating that the question is “a close one” (id. at
11a), that it is “unlikely * * * that Congress * * * intended for the
states’ legitimate policy choices to be held hostage to the EPA’s
schedule” (id. at 12a), and that the States in the First Circuit thus
would not be disadvantaged (ibid.), the court agreed with the rule
adopted in other Circuits applying the four-month time limit for
consideration of original SIPs in Section 110(a)(2) (42 U.S.C.
7410(a)(2)) to EPA’s consideration of SIP revisions in Section
110(aX(3MA) (42 U.S.C. 7410(a)(3)(A)).'® In so concluding, the
court erred. In light of the fact that the statutory language does
not provide a four-month deadline and the further fact that in the
Clean Air Act, Congress was explicit about other deadlines, the
application of the Section 110(a)(2) deadline for initial agency ap-
proval of SIPs as a Section 110(a)(3)(A) deadline for subsequent
agency review of SIP revisions is unwarranted. See Russello v.
United States, 464 U.S. 16, 23 (1983) (“ ‘[W]here Congress in-
cludes particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclu-
sion or exclusion,’ ”).'!
'© See Pet. App. 12a (citing American Cyanamid, 810 F.2d at 495; Council
of Commuter Organizations vy. Thomas, 799 F.2d 879, 888 (2d Cir. 1986);
Council of Commuter Organizations v. Gorsuch, 683 F.2d 648, 651 0.1 (2d
Cir. 1982); and Duquesne Light Co. v. EPA, 698 F.2d 456, 471 (D.C. Cir.
1983)). In United States v. Alcan Foil Products, supra, the Sixth Circuit also
concluded that a four-month limit applies to SIP revisions. 889 F.2d at
1517-1518.
'' Contrary to petitioner's contention (Br. 12 n.13), the question of the ap-
plicability of a four-month deadline to review of SIP revisions is properly
before this Court. The non-applicability of such a deadline ts an alternative
15
1. As always, “ ‘the starting point for interpreting a statute
is the language of the statute itself.’ ” Hallstrom v. Tillamook
County, 110 S. Ct. 304, 308 (1989). Indeed, the text itself is the
critical element of the interpretive inquiry, since it is the text
itself which is law. In this case, the pertinent textual analysis is
of Section 110(a)(2), which governs original SIP submissions
and explicitly imposes a four-month deadline on agency review,
and Section 110(a)(3)(A), which governs SIP revisions and im-
poses no such deadline.
Section 110(a)(2) contains two sentences. The first provides,
“The Administrator shall, within four months after the date re-
quired for submission of a plan under paragraph (1)
[§ 110(a)(1); 42 U.S.C. 7410(a)(1)], approve or disapprove such
plan, or any portion thereof.” The four-month review period
thus begins with the date specified in Section 110(a)(1)—“nine
months after the promulgation of a national primary ambient
air quality standard” or “a national ambient air quality sec-
ondary standard.” 42 U.S.C. 7410(a)(1). Both Section 110(a)(1)
and Section 110(a)(2) were part of an integrated timetable estab-
lished in 1970 to ensure that delays in formulating the original
SIPs did not interfere with the 1975 attainment deadline.'?
ground for affirming the judgment of the court of appeals, which reversed the
dismissal of the enforcement action and remanded for consideration of
penalties. The “prevailing party” is “of course free to defend its judgment on
any ground properly raised below whether or not that ground was relied upon,
rejected, or even considered by the District Court or the Court of Appeals.”
Washington v. Yakima Indian Nation, 439 U.S. 463, 475 n.20 (1979). See also
Thigpen v. Roberts, 468 U.S. 27, 30 (1984); Blum v. Bacon, 457 U.S. 132, 137
n.5 (1982); Dayton Board of Education vy. Brinkman, 433 U.S. 406, 419
(1977). In this case, the issue has been not only properly raised below, but ex-
plicitly addressed by both the district court and the court of appeals. See J.A.
122-125; Pet. App. 9a-12a.
'? This original schedule included (1) proposed NAAQS “within 30 days
alter December 31, 1970" (§ 10%a)(1)(A); 42 U.S.C. 7409(ay(1(A)); (2) final
NAAQS “no later than 90 days after initial publication of such proposed stan-
dards” (§ 109(a)(1)(B); 42 U.S.C. 7409(a)(1)(B)); (3) original SIP submissions
“within nine months after the promulgation” of NAAQS (§ 110(a)(1); 42
U.S.C. 7410(a(1)); (4) EPA action on SIP submissions within four months
(§ 110(a)(2); 42 U.S.C. 7410(a)(2)); and (5) attainment of the primary NAAQS
“as expeditiously as practicable but * * * in no case later than three years”
16
The second sentence of Section 110(a)(2) provides: “The Ad-
ministrator shall approve such [state implementation] plan, or
any portion thereof, if he determines that it was adopted after
reasonable notice and hearing and that” specified requirements
are satisfied, as set forth in Section 110(a)(2)(A)-(K). These re-
quirements are the heart of the federal SIP review process,
establishing the minimum standards for all state plans.
Section 110(a)(3)(A), which governs SIP revisions, provides
in its entirety, that
{t}he Administrator shall approve any revision of an imple-
mentation plan applicable to an air quality control region
if he determines that it meets the requirements of para-
graph (2) [§ 110(a)(2); 42 U.S.C. 7410(a)(2)] and has been
adopted by the State after reasonable notice and public
hearings.
The phrasing of this provision precisely parallels the second
sentence of Section 110(a)(2). Both refer to the substantive
standards that must be satisfied before a plan or revision is ap-
proved, and to the requirement that the State provide notice and
public hearing. But nothing in Section 110(a)(3)(A) can properly
be read as referring to or incorporating the first sentence.of Sec-
tion 110(a)(2), which requires EPA to act within four months
“after the date required for submission of a plan under”
§ 110(a)(1).'? Indeed, the language of the Section 110(a)(2)
deadline —“within four months after the date required for sub-
mission of a plan” — makes no sense in the context of a SIP revi-
sion because revisions are not “required.” Although petitioner
reads Section 110(a)(3)(A) as if it said that “the Administrator
shall approve or disapprove any revision no later than four
months after its submission,” the statute in fact contains no
such language.'*
from the date of approval of the original SIP (§ 110(a)(2A); 42 U.S.C.
7410(aM 2 A)).
') The “it” in § 110(aX3A), which must “meet| |] the requirements of
paragraph (2),” plainly refers to the SIP revision, not to the Administrator.
'* Significantly, the very next provision of the Act, relating to certain SIP
revisions for fuel burning stationary sources, contains just such language. See
17
2. Congress in 1970 desired to put the basic framework of
the Act —the NAAQS and the original state plans implementing
them —in place as quickly as possible.'* The four-month dead-
line for approval of original SIPs was part of a scheme enacted
by Congress to get air pollution controls in place swiftly.'*
§ 110(a)(3)(B); 42 U.S.C. 7410(a,(3)(B) (“The Administrator shall approve or
disapprove any revision no later than three months after its submission.”).
Clearly, Congress knew how to impose time limits on EPA processing of SIP
revisions when it wanted to do so. The three-month limit in Section
110(a)(3)(B) is practicable because a proposed SIP revision under that Section
can be submitted only after the Administrator has determined that the SIP can
be revised “without interfering with the attainment and maintenance of any
national ambient air quality standard,” and has so notified the State. Hence,
the difficult determination of whether NAAQS will be preserved will already
have been made. Indeed, Section 110(a)(3)(B) requires the Administrator to
make that determination — whether state plans are capable of revision without
interfering with the attainment of NAAQS—not within a specified three-
month period, but merely “[a}]s soon as practicable.”
Other examples of explicit deadlines in the Clean Air Act are the deadlines
for imposition of a federal implementation plan (§ 110(c\1); 42 U.S.C.
7410(c)(1)) and review of a State-issued delayed compliance order (§ 113d); 42
U.S.C. 7413(d)).
'? The legislative history reflects this sense of urgency. See, e.g., Congres-
sional Research Service, | A Legislative History of the Clean Air Amendments
of 1970, at 124-125 (Comm. Print 1974) (remarks of Senator Muskie on consid-
eration of the conference report) (“Let me now review briefly where we were in
September * * *. Unless we recognized the crisis and generated a sense of ur-
gency, national lead times to find and apply controls [and] measures could melt
away without any chance for a rational solution to the air pollution problem.
* * * (Njational air quality goals * * * had to be achieved within specific time
trames * * *.”). See also Union Electric Co. v. EPA, 427 U.S. 246, 256 (1976)
(“[T}he 1970 Amendments to the Clean Air Act were a drastic remedy to what
was perceived as a serious and otherwise uncheckable problem of air
pollution.”).
'* See S. Rep. No. 1196, 91st Cong., 2d Sess. 14 (1970) (“In order to insure
achievement of air quality necessary to protect the health of persons within the
period specified in the bill, time constraints would be placed on the Secretary's
review and approval authority. * * * The bill would provide that the Secretary
must approve Or reject any implementation plan submitted by a State within
four months of the date required for its submission.”). In that version of the
legislation, the Secretary of Health, Education, and Welfare, who had
previously been responsible for federal air pollution control efforts, was given
responsibility for reviewing SIP submissions. See id. at 52.
Meeting short deadlines for these initial steps was considered
possible in part because many States had already developed am-
bient air standards for metropolitan areas, some of those stand-
ards had already received federal approval, and various imple-
mentation plans were already in preparation or had been com-
pleted under earlier versions of the Clean Air Act.'’
There is no evidence, however, that Congress expected the
same short deadlines to apply once the original SIPs were in
place to protect public health. Indeed, the SIP revision authori-
ty in Section 110(a)(3) was enacted virtually without comment.
The logical inference is that, once the protective framework of
original SIPs was in place, the States and EPA would not be ex-
pected to maintain the same hectic pace on matters like SIP revi-
sions, which often, as in the case here, involve relaxation or
delay of strict emission control requirements.
3. Petitioner contends (Br. 13 n.14) that the Court should use
Section 110(g) (42 U.S.C. 7410(g)) as an aid to construction of
Sections 110(a)(2) and 110(a)(3(A). This provision, added by the
1977 Amendments, permits the Governor of a State to issue a
four-month suspension of portions of a SIP where the State has
submitted a SIP revision “which the Administrator has not ap-
proved or disapproved under this section within the required four
month period,” and which is necessary to prevent substantial
unemployment resulting from a plant closing. 42 U.S.C. 7410(g).
Clean Air Act Amendments of 1977, Pub. L. No. 95-95,
§ 107(b), 91 Stat. 692-693. By its terms, this provision does not in
any way amend Section 11Q(a)2) or Section 110(a)(3)A).
Moreover, there is no legislative history that suggests, and no
reason to believe, that the new provision was designed to clarify
the relationship between Sections 110(a)(2) and 110(a)(3)(A), or
to impose a new deadline on SIP revision processing.
'? See CRS, 2 A Legislative History of the Clean Air Act Amendments of
1970, at 1036-1038 (Comm. Print 1974) (testimony of Charles C. Johnson,
Administrator, Environmental Health Services, Department of Health,
Education, and Welfare). The 1970 Amendments specifically provided that
any pre-enactment state implementation plan could be approved and remain
in effect if consistent with the Amendments. See 84 Stat. 1713; 42 U.S.C. 7410
note.
19
Petitioner’s position is apparently that reference in the new
provision to “the required four month period” is an indication
that Congress, in 1977, interpreted the 1970 Amendments as
having imposed such a time limit on SIP revision determina-
tions. Even if there were any evidence that Congress was inter-
preting the 1970 Amendments, the views of the 1977 Congress
would obviously not be probative of the legislative intent in
1970.'* But there is no such evidence. The reference to the “re-
quired four month period” was inserted by the Conference
Committee, and the legislative history of the 1977 Amendments
does not explain its meaning. See H.R. Conf. Rep. 564, 95th
Cong., Ist Sess. 125 (1977). The phrase may well be a residual
reference to the four-month period within which the Ad-
ministrator was required to approve or disapprove a “temporary
emergency suspension” under the House version of the legisla-
tion,'® and Section 110(g) is most reasonably interpreted as con-
templating a four-month period for EPA ‘eview of such
emergency SIP revisions. That interpretation reasonably recon-
ciles all pertinent textual provisions, and is not precluded by any
language of the statute or expression of congressional intent. In-
deed, the focus of the drafters of subsection (g) was on situa-
tions of economic emergency; there is simply no evidence that
they intended to speak to the day-to-day processing of routine
requests for extensions or variances.
4. Even without a four-month deadline, EPA remains sub-
ject to statutory requirements of timeliness. The Administrative
'® See Gwaltney of Smithfield, Lid. v.Chesapeake Bay Foundation, Inc.,
484 U.S. 49, 63 n.4 (1987) (“Respondents point to provisions in the 1987 Act
and statements in its legislative history * * *. The conclusions of the 99th Con-
gress, however, are hardly probative of the intent of the 92d Congress.”); —
Rainwater v. United States, 356 U.S. 590, 593 (1958) (“At most, the 1918
amendment is merely an expression of how the 1918 Congress interpreted a
Statute passed by another Congress more than a half century before. * * *
{SJuch interpretation has very little, if any, significance”).
'y See H.R. 6161, 95th Cong., Ist Sess. § 115 (1977) (reprinted in CRS, 4 A
Legislative History of the Clean Air Act Amendments of 1977, at 2324
(Comm. Print 1978)).
20
Procedure Act requires agencies to conclude matters “within a
reasonable time” (5 U.S.C. 555) and provides a remedy for
agency action “unreasonably delayed” (5 U.S.C. 706(1)). See
Costle v. Pacific Legal Foundation, 445 U.S. 198, 220 n.14
(1980). Measured by this statutory requirement, EPA review of
SIP revision proposals for longer than four months is—in the
usual case — not unreasonable.
In most instances, there is no realistic possibility that EPA
can appropriately take final action on proposed SIP revisions
within four months. The Administrative Procedure Act’s (APA)
requirement for notice and public comment alone is likely to use
up most or all of the allotted period. See Buckeye Power, Inc. v.
EPA, 481 F.2d 162, 170-171 (6th Cir. 1973) (APA notice and
comment requirements apply to EPA decision on SIPs), cert.
denied, 425 U.S. 934 (1976); United States Steel Corp. v. EPA,
605 F.2d 283, 288 (7th Cir.) (public comment and response to
comments can take several months), cert. denied, 444 U.S. 1035
(1979). Requests to extend the customary 30-day comment
period are not unusual and are routinely granted. As befits the
purposes served by public participation, additional comments
during such an extension may considerably enhance the deci-
sionmaking process. See, e.g., United States v. National Steel
Corp., 767 F.2d 1176, 1181 (6th Cir. 1985) (comment period ex-
tended and SIP revision rejected because additional comments
established inaccuracies in methodology used to justify pro-
posed revision). Moreover, the agency must “respond in a
reasoned manner to the comments received, to explain how the
agency resolved any significant problems raised by the com-
ments, and to show how that resolution led the agency to the
ultimate rule.” Rodway v. Dep’t of Agriculture, 514 F.2d 809,
817 (D.C. Cir. 1975). In many cases, as here (53 Fed. Reg.
36,012 n.1 (1988)), comments are received after the close of the
comment period, and considered and addressed by the Agency.
To have any hope of meeting a four-month deadline, EPA
would have to issue a proposed decision almost immediately
after receipt of the SIP revision. That would hardly be con-
ducive to reasoned decisionmaking, and indeed would subvert
the important supervisory role that Congress intended EPA to
21
carry out. Nor would such precipitous action further the
federal-state partnership embodied in the Act. In some cases, it
makes more sense to negotiate with a State to bring about an ap-
provable SIP revision, rather than deny an inadequate proposal
outright. Additionally, a State may want EPA to hold a matter
in abeyance. In this very case, for instance, the Commonwealth
requested EPA to delay processing of the SIP revision while it
attempted to negotiate a Delayed Compliance Order with peti-
tioner. J.A. 89-90. If a strict four-month rule applied, EPA
would have to reject even reasonable requests by States for stay-
ing its hand. There is no reason to believe that Congress would
have intended to usher in such an implausible regime.
Several other factors likewise contribute to the time required
for SIP revision review. Because the various States use widely
different methodologies (see J. Bromberg, Clean Air Act Hand-
book 110-111 (1985)), primary review of SIP revisions is carried
out by the regional offices of EPA which are familiar with the
Situation in each State. In many instances, however, SIP revi-
sion proposals will raise policy questions with nation-wide im-
plications; hence, review by EPA Headquarters is also import-
ant. J.A. 98; see also State Implementation Plan Processing
Reform; Notice of Procedural Changes, 54 Fed. Reg. 2214,
2215 (1989) (SIP Processing Reform). Disapprovals and partial
approvals also must undergo Office of Management and Budget
review under Executive Order 12,291, 46 Fed. Reg. 13,193
. (1981), before being published as final decisions in the Federal
Register. See SIP Processing Reform, 54 Fed. Reg. 2215 (1989).
This OMB review can take several months.?°
20 See Letter from Joseph A. Cannon, EPA Associate Administrator,
Policy and Resource Management to Hon. Sam. B. Hall, Chairman, House
Subcommittee on Administrative Law and Governmental Relations (May 26,
1983), reprinted in Regulatory Reform Act: Hearings Before the Subcomm.
on Administration Law and Governmental Relations of the House Comm. on
the Judiciary, 98th Cong., Ist Sess. 1561-1562 (1983).
22
Furthermore, the analysis required to evaluate the merits of a
proposed SIP revision is frequently complex and resource inten-
sive. For example, a typical SIP revision for a single source of
volatile organic compounds in an ozone nonattainment area
(the case here) requires EPA to compare the source’s proposed
control technology with control technology of which EPA is
aware for other similar sources, and determine whether the
compliance schedule is as expeditious as practicable in light of
the proposed technology, alternative technologies, and special
circumstances at the source. 42 U.S.C. 7502(b)(2); J.A. 84-85.
EPA must determine whether the proposed revision will assure
that the State will continue to make “reasonable further pro-
gress” each year that is “sufficient * * * to provide for attain-
ment of the applicable national ambient air quality standard by
the date required.” 42 U.S.C. 7501(1), 7502(b)(3). This requires
an analysis of the State’s reported reductions in emissions and
the effect the proposed revision will have on continued reduc-
tions, which typically requires complex mathematical model-
ling. J.A. 84-85.?!
Contrary to petitioner’s repeated suggestion that EPA has been
either indifferent or willfully dilatory with regard to SIP revision
review,?? the issue of delays in SIP revision review has been a sub-
ject of continuing concern to the Agency. Between 1983 and
1989, the Agency processed more than 1600 SIP-related ac-
tions—an average of almost 350 per year. SIP Processing
Reform, 54 Fed. Reg. 2215. In 1985, the Agency issued internal
guidelines setting a 14-month timetable for action on most pro-
posed SIP revisions. Office of Air Quality Planning and Stand-
ards, EPA, Guidelines on Processing SIP Revisions (And
2! The requirements that SIPs in nonattainment areas provide for the use of
“reasonably available control technology” (RACT) to reduce emissions and
that they provide for “reasonable further progress” in controlling emissions
during the interim before compliance (42 U.S.C. 7502(b)(3)) were added by
the 1977 Amendments; they require EPA to make a more detailed inquiry into
a State’s choice of emission limitations. See, e.g., Michigan v. Thomas, 805
F.2d 176, 184-185 (6th Cir. 1986).
22 See, e.g., Br. 11, 12, 14, 18, 22.
23
111(d) Plans) (1985) (J.A. 103-111). The Agency concluded that
this guideline represented a reasonable accommodation of the
public interest in (and the Agency’s statutory responsibility for)
careful review of SIP revision proposals, as well as States’ and
sources’ interest in expeditious review.?? Because the Agency re-
mained concerned about continuing problems of delays,
however, EPA announced in 1989 extensive changes in SIP revi-
sion review to expedite Agency review and achieve better com-
pliance with the Agency’s own timeliness goals. See SIP Process-
ing Reform, 54 Fed. Reg. 2214-2226 (1989). After notice and
comment on these changes, EPA has now issued a final rule and
revised guidelines regarding its SIP review procedures. The
revised procedures recognize that SIP revision proposals vary
widely, and set forth a sliding scale of three months to fourteen
months for Agency review of most SIP revisions, depending on
their nature and complexity (which in some instances may
necessitate a period of longer than fourteen months). See 55
Fed. Reg. 5824, 5826-5828 (1990).?4
It may be that, despite these Agency efforts, particular SIP
revision reviews have been subject to unwarranted delay, or will
be in the future. The pertinent statutory measure, however, is
the APA’s standard of reasonableness, not a four-month
2) Cf. United Steelworkers of America v. Rubber Manufacturers Ass'n, 783
F.2d 1117, 1120 (D.C. Cir. 1986) (accepting Occupational Safety and Health
Administration’s proposed 14-month schedule for completing rulemaking
because agency “obviously cannot know at present how many comments it will
receive or the nature of those comments,” and because, given the need for
careful consideration of complex issues, “judicial imposition of an overly
hasty timetable at this stage would ill serve the public interest”).
7 In its condemnation of EPA, petitioner misstates a finding in an internal
Agency audit. According to petitioner, the Agency audit found that the
average time for SIP revision review is 30 months. Br. 29. In fact, however,
the audit found that 30 months is the average time only for review of SIP revi-
sions in which a disapproval is contemplated; those are, of course, the revi-
sions that require the most time and are the most contested. See EPA, Report
of Audit, Review of EPA’s Process for Approving/Disapproving Si.‘ lm-
plementation Plans and Revisions, E1K*8-11-0045-9100210 (March 19>)
20-21 (analyzing length of time for “pending disapprovals”).
24
deadline that is not to be found in the language of ‘Section
110(a)(3)(A).?°
ll. EVEN IF THERE IS A FOUR-MONTH TIME LIMIT FOR
REVIEW OF SIP REVISION PROPOSALS, EPA IS NOT
BARRED FROM ENFORCING THE TERMS OF AN EX-
ISTING SIP ONCE THAT DEADLINE HAS PASSED
If (contrary to our view) the Section 110(a)(2) deadline does
apply to Section 110(a)(3)(A) revisions, the court of appeals
nonetheless correctly concluded that EPA’s failure to meet the
deadline should not lead to a bar of enforcement actions for
violations of the original SIP until the Agency’s final action on
the proposed revision. A claim that a statute’s enforcement
should be barred because an agency has missed a deadline for
regulatory action must be resolved by “examin|[ing] carefully the
statutory language and legislative history to determine whether
Congress did indeed desire this somewhat incongruous result.”
Brock v. Pierce County, 476 U.S. 253, 258 (1986). Neither the
statute nor the legislative history reveals any congressional in-
tent to bar enforcement when EPA fails to act within a specified
period; instead, as the court of appeals concluded, less drastic
remedies to address problems of Agency delay are already pro-
vided by statute.
25 Amici Golden West Refining Co., et al., contend (Br. 7 n.4) that “EPA
acknowledged the four month limit applied to SIP revisions” in regulations
implementing Section 120. What Golden West mistakenly refers to as “pro-
posed regulations” was actually a final rule modifying EPA’s Section 120
regulations in response to the D.C. Circuit's Duquesne Light decision. 50 Fed.
Reg. 36,732 (1985). With respect to the four-month deadline, EPA merely
repeated the holding of Duquesne Light and cited the decision. 50 Fed. Reg.
36,733 (1985). This recognition of a court decision obviously does not amount
to an “acknowledge[ment]” or a concession. See EPA v. National Crushed
Stone Ass'n, 449 U.S. 64, 83 n.25 (1980). See also SIP Processing Reform, 54
Fed. Reg. 2215 n.1 (1989) (reiterating Agency view that four month deadline
“does fot apply to SIP revisions”).
25
A. There Is No Support In The Language Or Legislative
History Of The Clean Air Act For An Enforcement Bar
The language of the Clean Air Act plainly states that EPA may
bring an action for penalties or injunctive relief whenever a person
is in violation of any requirement of an “applicable implementa-
tion plan.” § 113(b)(2); 42 U.S.C. 7413(b)(2).?* Without question,
the existing SIP remains the “applicable implementation plan”
even after the State has submitted a proposed revision. See
§ 110(d); 42 U.S.C. 7410(d) (“For purposes of this chapter, an ap-
plicable implementation plan is the implementation plan, or most
recent revision thereof, which has been approved under [§ 110(a);
42 U.S.C. 7410(a)} or promulgated under [§ 110(c); 42 U.S.C.
7410(c)} and which implements the requirements of this
section.”.?”’ This Court has emphasized the continuing applicabili-
ty of an existing SIP while a SIP revision proposal is pending:
{A] polluter is subject to existing requirements until such
time as he obtains a variance, and variances are not available
under the revision authority until they have been approved
by both the State and the [Environmental Protection] Agen-
cy. Should either entity determine that granting the variance
would prevent attainment or maintenance of national air
standards, the poiluter is presumably within his rights in
seeking judicial review. This litigation, however, is carried
out on the polluter’s time, not the public’s, for during its
pendency the original regulations remain in effect, and the
polluter’s failure to comply may subject him to a variety of
enforcement procedures.
Train v. Natural Resources Defense Council, 421 U.S. 60, 92
(1975). The courts of appeals have similarly recognized that the
approved SIP is the applicable implementation plan even after a
SIP revision has been proposed.?*
2¢ EPA may bring the action 30 days after notice of a violation. If the EPA
has, pursuant to 42 U.S.C. 7413(a)(2), assumed enforcement of a SIP from the
State because of state enforcement failures, the 30-day period is not necessary.
42 U.S.C. 7413(b),(2).
2 ” The reference to Section 110(c) is to situations in which, because of state
tailure to comply with SIP submission requirements, the Administrator prom-
ulgates a SIP on the State’s behalf. See 42 U.S.C. 7410(c).
3 2* See Alcan Foil, 889 F.2d at 1519 (“[A] proposed revision is exactly what
its name implies — a proposal, and nothing more.”); Duquesne Light, 698 F.2d
26
In American Cyanamid, the Fifth Circuit recognized that the
proposed SIP revision does not displace the existing SIP as the
applicable plan (810 F.2d at 495), but nevertheless concluded
that EPA should be barred from enforcing the existing SIP if
the Agency has not acted on a proposed revision within four
months. That court decided for policy reasons that an enforce-
ment bar was necessary to penalize EPA for “contumacious-
ness,” to preserve the role of the States under the Act, and to
assure even-handed consideration of SIP revision requests. 810
F.2d at 499-500. The court made virtually no attempt to ground
its enforcement bar in a specific statutory provision, or in
specific evidence of legislative history. And, in fact, there is no
evidence that Congress either intended or provided such an en
forcement bar. In carving an exception out of EPA’s genera!
statutory enforcement authority, the American Cyanamid rule
is “contrary to what the statute says.” *°
Nothing in the statute qualifies EPA’s authority to enforce
the “applicable implementation plan” in this circumstance. In-
deed, Congress enacted an explicit enforcement bar elsewhere in
the statute’* —a fact which further rebuts the notion that an im-
at 471 (same); United States v. Wheeling-Pittsburgh Steel Corp., 818 F.2d
1077, 1084 (3d Cir. 1987) (company is obliged to comply with existing com-
pliance deadlines during pendency of SIP revision); United States v. Ford
Motor Co., 814 F.2d 1099, 1103 (6th Cir.) (“the original emission limit remains
fully enforceable until a revision or variance is approved by both the State and
EPA”), cert. denied, 484 U.S.C. 822 (1987); Metropolitan Washington Coali-
tion for Clean Airy. District of Columbia, $11 F.2d 809, 812 (D.C. Cir. 1975)
(proposed SIP revision has no legal effect until approved by EPA); Natural
Resources Defense Council v. EPA, 478 F.2d 875, 886 (ist Cir. 1972) (same).
2» D. Currie, Air Pollution: Federal Law and Analysis § 8.07 n.14 (Supp.
1989). See also | W. Rodgers, Environmental Law: Air and Water § 3.39
(Supp. 1988) (enforcement bar is a “limitation invented by American
Cyanamid”).
” Section 113d, 10); 42 U.S.C. 7413(d)(10), contains an express enforce-
ment bar when Delayed Compliance Orders are in effect: i provides that, dur-
ing the period of the Order and where the source is in compliance with its
terms, “no Federal enforcement action pursuant to this section and no action
under section 7604 of this title [providing for citizen suits} shall be pursued
against such owner or operator based upon noncompliance during the period
27
plicit enforcement bar was somehow intended if EPA misses a
deadline under Section 110a)(3)A). See Hallstrom vy.
Tillamook County, 110 S. Ct. 304, 309 (1989) (“[W]e are not at
liberty to create an exception where Congress has declined to do
so.”); Russello v. United Staics, 464 U.S. at 23. Furthermore,
reading an enforcement bar into Section 110(a)(3)(A) would
render superfluous the explicit and limited provision of Section
110(g) (42 U.S.C. 7410(g)), which Congress enacted in 1977 to
address the situation in which a pending SIP revision has not
been acted on by EPA and the State believes that the waiver is
necessary to prevent substantial unemployment due to plant
closings. In that Section, Congress has granted authority to a
Governor to suspend the existing SIP after four months. As the
court of appeals recognized (Pet. App. 18a n.6), there would
have been no reason for Congress to add that Section if the ex-
isting SIP automatically became unenforceable at the end of
that period.?!
the order is in effect with the requirements for the source covered by such
order.”
Section 113(d)(2); 42 U.S.C. 7413(d)(2), moreover, provides that a Delayed
Compliance Order issued by a State to a “source other than a major stationary
source” is effective until the Administrator disapproves it. The same Section
provides that orders issued to major stationary sources are not effective until
approved by EPA. This indicates that Congress is well aware of the difference
between agency approvals that are a condition precedent to ef*ectiveness of a
State-issued order and those that are a condition subsequent. Petitioner here is
seeking, in essence, to change a statutory condition precedent to a condition
subsequemt. The fact that the Fifth Circuit has now suggested that its
American Cyanamid rule applies if EPA has not acted on a Delayed Com-
pliance Order to a major stationary source within a specified period (General
Motors Corp v. EPA, 871 F.2d 495, 505 (Sth Cir. 1989)) does not vitiate this
explicit statutory distinction.
*' In response to this point, petitioner maintains (Br. 27 n.34) that a Gover-
nor may issue a four-month suspension order as soon as the request is submit-
ted, that the suspension would run concurrently with the four-month period
for EPA review, and that the American Cyanamid bar would run after the ex-
piration of that period. Section 110(g), however, does not contain a provision
specifying that the Governor's suspension order takes effect immediately; Sec-
tion 110(f), in contrast, which concerns energy emergencies and which was
passed at the same time as Section 110(g), contains precisely such language.
See 42 U.S.C. 7410(1(1) (after President's determination of emergency,
28
Instead of relying on specific statutory provisions or
legislative history to justify an enforcement bar, the American
Cyanamid court referred to the States’ important role in “the
statutory scheme” (810 F.2d at 500) and to the congressional fin-
ding that “ ‘the prevention and control of air pollution * * * is
the primary responsibility of States and local governments’ ”
(810 F.2d at 500-501, quoting 42 U.S.C. 7401(a)(3)). Petitioner
similarly relies on “the statute’s carefully crafted balance of state
and federal authority.” Br. 22. This general emphasis on the role
of the States, however, does not supply a proper statutory an-
chor for the enforcement bar. Moreover, while the States retain
important responsibilities under the Act, the States’ “primary
responsibility” is to be carried out subject to significant over-
sight by the federal government. Section 110(a), in particular,
gives final authority over SIPs and SIP revisions to EPA. See
Train v. Natural Resources Defense Council, 421 U.S. at 92.
Since Congress made EPA approval a condition precedent to
the effectiveness of a SIP revision, there will a/ways be a period
during which a State’s choice of emission controls will have to
await approval by EPA. The result of the American Cyanamid
rule is that a proposed SIP revision becomes, in effect, the ap-
plicable standard after four months in the absence of agency
Governor's suspension order “may take effect immediately”). The Conference
Report, moreover, firmly rebuts petitioner's strained reading of Section 1 10(g)
by stating an intent to “limit the Governor's economic emergency suspension
authority to a case in which * * * the Administrator has failed to approve or
disapprove such plan revision within the required 4-month period.” H.R.
Conf. Rep. No. 564, 95th Cong., Ist Sess. 125 (1977). Clearly, the Ad-
ministrator cannot be said to have “failed” until the four-month period is over, —
thus a Governor’s ability to order a suspension comes into effect only after the
four-month period of EPA review, and would be entirely unnecessary if Con-
gress intended a general American Cyanamid bar if EPA does not act in four
months.
This analysis, of course, proceeds from the premise that a general four-
month deadline is intended by Section 110(a)(3)(A). As we have explained (pp.
14-24, supra), we believe that four-month review of SIP revisions is required
only for such emergency suspensions.
29
disapproval. But there is simply no support in the statute for
such a conclusion.??
B. Less Drastic Remedies Than An Enforcement Bar Are Avail-
able To Address Agency Delay
In the absence of a specific statutory provision or legislative
history suggesting that Congress intended an enforcement bar,
petitioner maintains that an enforcement bar should be imposed
for various policy reasons. Petitioner urges that such a bar is
needed to protect the States’ role under the Act (Br. 20-24,
31-34), to protect industry from uncertainty (Br. 34-37), and to
discipline the Agency (Br. 37-40). These policy arguments are
more properly presented to Congress than to the courts. They
*? Amici National Governors’ Association, et al. recognize that “[a] com-
plete bar to enforcement proceedings is contrary to Congress's carefully
crafted scheme.” Br. 18 0.17. The Association et al. nevertheless argue (Br.
18-19) that a district court should bar enforcement unless EPA establishes to
the court's satisfaction a basis for disapproving the pending SIP revision.
While that proposal is less draconian than the American Cyanamid bar, it suf-
ters equally from the disability of having no support in the statute (which
unambiguously provides that an existing SIP remains the governing legal
standard pending EPA approval of a proposed revision, see pp. 25-26, supra).
In addition, it conflicts with Congress's decision to vest exclusive review of
EPA's decisions on SIP revisions in the courts of appeals. § 307(b)(1); 42
U.S.C. 7607(b)(1); see Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980).
(Amici’s reference to Section 307(b)(2), 42 U.S.C. 7607(b)(2), which prohibits
review in civil or criminal enforcement proceedings of actions on which court
of appeals review could have been obtained under Section 307(b)\(1), is
unavailing because that prohibition does not confer jurisdiction on the district
courts to review SIP revisions.) In any event, Amici’s concern that EPA
should not enforce the existing SIP if the proposed SIP revision meets the
statutory criteria for approval is already addressed by agency enforcement
policy. Under that policy, EPA usually does not initiate enforcement actions
until « has made a preliminary determination that a pending SIP revision can-
not be approved. See EPA, Revised Guidance on Enforcement of State Im-
plementation Plan Violations Involving Proposed SIP Revisions 3-6 (Aug. 29,
1989). (Copies of this document have been served on petitioner and lodged
with the Clerk of the Court.) In this case, for instance, the enforcement action
was not filed until after the proposed disapproval had been published in the
Federal Register. See J.A. 91-96.
30
are, in any event, unpersuasive—especially because explicit
statutory provisions already provide less drastic remedies than
an enforcement bar, remedies that, unlike petitioner’s blunder-
buss approach, also preserve the basic statutory protection of
the public health.
1. Petitioner’s argument about the propriety of an enforce-
ment bar as a remedy (Br. 24-30, 40-45) begins with a funda-
mental misconception. Petitioner fails to appreciate the excep-
tional nature of the “remedy” it seeks, and of the rule imposed
by the American Cyanamid court. In the absence of explicit
statutory language divesting an agency of the power to enforce
an Act of Congress, courts should be wary of assuming that |
Congress intended such a result. The principles that govern this
inquiry were set out in Brock v. Pierce County, 476 U.S. 253
(1986). That litigation arose out of an attempt by the Secretary
of Labor to recoup misspent job training funds after a govern-
ment audit of the County’s expenditures; the County argued
that recovery was barred because the Secretary had failed to
complete his investigation and issue a final determination re-
garding the matter within 120 days, as required by the pertinent
statute. /d. at 257. Citing “the ‘great principle of public policy,
applicable to all governments alike, which forbids that the
public interests should be prejudiced by the negligence of the of-
ficers or agents to whose care they are confided’ ” (476 U.S. at
260), this Court emphasized the strong presumption against
concluding that Congress intended to bar an agency from acting
if it missed a deadline for regulatory action (/bid.):
We would be most reluctant to conclude that every failure
of an agency to observe a procedural requirement voids
subsequent agency action, especially when important
public rights are at stake. When, as here, there are less
drastic remedies available for failure to meet a statutory
deadline, courts should not assume that Congress intended
the agency to lose its power to act.
The Court explained that a “less drastic remedy” for failure to
meet a mandatory deadline would be a suit to “ ‘compel agency
action unlawfully withheld or unreasonably delayed,’ ” under
31
the Administrative Procedure Act, 5 U.S.C. 706(1). 476 U.S. at
260 n.7.
The reasoning of Brock is fully applicable to this case.*?
Here, as in Brock, “[t}here is simply no indication in the statute
or its legislative history that Congress intended to remove the
[agency's] enforcement powers” if it fails to act in a timely
fashion. 476 U.S. at 266.'* As the court of appeals concluded,
and as we shall show, there are less drastic remedies (including
but not limited to suits under 5 U.S.C. 706(1)) for addressing
untimely action on SIP revisions. See also Alcan Foil, 889 F.2d
at 1520-1521 (“Clearly remedies less drastic than dismissal are
available for EPA's failure to act within four months.”).
Petitioner contends (Br. 26) that the reasoning of Brock is not
applicable because EPA can lift the enforcement bar by taking
final actions on proposed SIP revisions. This asserted distinc-
tion is inadequate. During the enforcement bar, the Agency
would be stripped of its explicit statutory power to enforce ap-
plicable clean air requirements; the need for judicial reluctance
*» Although American Cyanamid was decided some nine months after
. Brock, it failed to advert to that decision. Both the court below (Pet. App.
16a) and the Sixth Circuit in Alcan Foil (889 F.2d at 1520) recognized the ap-
plicability of Brock to the claim that failure to meet a statutory deadline for
regulatory action bars agency enforcement of that statute.
* As in Brock, 476 U.S. at 265, Congress's concern has been that the
United States has not been aggressive enough in enforcing the statute, not that
enforcement targets were being treated too harshly. See, e.g., S. Rep. No.
1196, 9ist Cong., 2d Sess. 21 (1970) (“the [enforcement] provisions of existing
law, although less than adequate, have not been used to the fullest extent prac-
ticable"); S. Rep. No. 127, 95th Cong., Ist Sess. 52 (1977) (“[djespite the
recalcutrance of some source Owners and operators toward expeditiously com-
plying with requirements under the act, few criminal actions have been
brought * * *; [t}he enforcement of the Clean Air Act for the past seven years
has been minimal at best * * *”); H.R. Rep. No. 294, supra, at 71-72 (“[sjtate
and local enforcement efforts to date halve] been largely ineffective in bring-
ing about compliance * * *. The adequacy of Federal enforcement efforts was
also questioned. * * * [Mjany steps need to be taken to improve and expedite
Federal, State, and local enforcement activities.”). See also Ohio Environmen-
tal Council v. United States District Court, $68 F.2d 993, 397 (6th Cir. 1977)
— . strong Congressional policy in favor of prompt enforcement of
t ct").
32
to conclude that an agency's failure “to observe a procedural re-
quirement voids subsequent agency action, especially where im-
portant public rights are at stake” (Brock, 476 U.S. at 260) is
therefore directly relevant. That EPA could ultimately act on a
proposed revision (and thus regain its enforcement authority)
does not mitigate the fact that it would have been deprived of
“its power to act” (ébid.) with respect to Clean Air Act violations
in the interim—and could be similarly deprived again by sub-
mission of another proposed revision relating to the same
source. Indeed, Congress has specifically emphasized the
importance of imposing monetary penalties to remove the eco-
nomic benefits of noncompliance and to “place polluters on the
same economic footing as those who had limited their emissions
through increased anti-pollution expenditures.” Duquesne
Light, 698 F.2d at 463, citing H.R. Rep. No. 294, 95th Cong.,
ist Sess. 72-79 (1977). If EPA were barred from collecting
penalties for some period of non-compliance with an applicable
SIP, this congressional purpose would be irretrievably
thwarted, notwithstanding the possibility of prospective relief
once EPA is able to take final action on the SIP revision. Con-
trary to petitioner's advocacy of the enforcement bar, Brock
counsels that, in the absence of explicit congressional intent,
such a frustration of the basic statutory purpose — and such an
exceptional result from a failure to observe a deadline for
regulatory action — should not be countenanced.*°
2. Proceeding from this misconception about the nature of
the rule it advocates, petitioner advances policy arguments to
support the enforcement bar. Petitioner's first policy argument
(Br. 20-24) is that an enforcement bar is necessary to preserve
> As we have explained (pp. 19-22, supra), EPA's mabulity to take final ac-
tion within four months ts often due to factors beyond the agency's control,
such as the requirement for public comment and the need to accommodate
State requests for delay. Cf. Brock v. Pierce County, 476 U.S. at 261 (“| T)he
Secretary's ability to complete [his statutory duty] within 120 days ts subject to
factors beyond his control.”). Indeed, the deadhne in Brock — 120 days — is
sumilar to the four-month deadline here, and the process of reviewing SIP reve-
sons ts at least as Compiles as the Secretary's responsibility to resolve the mat-
ter of musspent funds at msue in Brock
33
the partnership between the state and federal governments that
the Clean Air Act creates. As an initial matter, it is incongruous
for petitioner to be asserting that interest in this case because the
Commonwealth of Massachusetts has stated unequivocally in
this litigation that, in its view, an American Cyanamid enforce-
ment bar should not be imposed. See Massachusetts C.A.
Amicus Br. 10-15; Pet. App. 12a. Petitioner thus seeks to assert
the State’s interest in a case in which the State itself has come to
exactly the opposite conclusion.
In any event, an enforcement bar would be unlikely to further
the asserted goal of a co-operative relationship between the
States and the federal government. Instead, it would place a
_ premium on hurried and inflexible decision-making. In this
case, for instance, an enforcement bar would have argued
strongly in favor of rejecting the Commonwealth's request for
additional time for negotiations. Cf. Georgia v. United States,
411 U.S. 526, 540-541 (1973) (requiring the Attorney General to
act On state reapportionment plans within the 60 day deadline
provided in the Voting Rights Act, rather than allowing him to
suspend running of period while States submitted additional
pertinent information, “would only add acrimony to the ad-
ministration” of the Act).
To the extent that States are legitimately aggrieved by EPA
delay in SIP revision review, moreover, adequate alternative
remedies are available. The ruling below contemplates the abili-
ty to compel EPA action, if it is unreasonably delayed. Brock
suggests (476 U.S. at 260 & n.7) that this is precisely the sort of
“less drastic remed[y]” that renders an enforcement bar un-
necessary. See also Council of Commuter Organizations v.
Thomas, 799 F.2d at 888 (remedy for undue delay on SIP revi-
sions IS sult tO COmpel action under Section 304(a)); United
States v. Boccanfusv, 882 F.2d 666, 671-672 (2d Cir. 1989)
(Corps of Engineers cannot be estopped trom enforcing Clean
Water Act on account of its failure to follow deadline contained
im ws regulations; sul under APA provides “less drastic
remedy”). Furthermore, this remedy has the advantage of being
34
available in all SIP revision cases, not just those few that may
implicate enforcement actions.**
Under the approach taken by the court of appeals, moreover,
there is a substantial incentive for timely agency action because,
pursuant to Section 113(b) (42 U.S.C. 7413(b)), the penalties
EPA may obtain can be reduced if the source can show that it
complied with a proposed SIP revision that was subject to an
unreasonable and prejudicial delay. Pet. App. 15a. Like an ac-
tion to compel agency action — and unlike an enforcement bar —
this remedy is explicitly provided by statute. It is also more ap-
propriately tailored to the asserted problem of agency delay
than an automatic enforcement bar, which would take effect no
matter how reasonable the delay and whether or not the delay
caused any prejudice. Although, as petitioner notes (Br. 41),
‘© Two types of actions to compel agency action should be distinguished — a
suit to compel agency action under the Clean Air Act (§ 304(a)(2); 42 U.S.C.
7604(a)(2)) and a suit to compel agency action under the Administrative Pro-
cedure Act (§ U.S.C. 706(1)). The Clean Air Act provision authorizes a citizen
suit “where there is alleged a failure of the Administrator to perform any act or
duty * * * which is not discretionary.” 42 U.S.C. 7604(a)(2). “In order to im-
pose a clear-cut nondiscretionary duty [for purposes of Section 304(a)(2)}
* * * a duty of timeliness must ‘categorically mandat{e}’ that a// specified ac-
tion be taken by a date-certain deadline.” Sierra Club v. Thomas, 828 F.2d
783, 791 (D.C. Cir. 1987), quoting from Natural Resources Defense Council v.
Train, $10 F.2d 692, 712 (D.C. Cir. 1974). If there is a categorical mandate in
the statute that EPA act on a SIP revision within four months, the remedy to
compel agency action would lie under Section 304(a)(2). See Pet. App. I4a
(noting that Section 304(a) provides a remedy to compel timely action on SIP
revision); Alcan Foil, 889 F.2d at 1520-1521 (same); Council of Commuter
Organizations vy. Thomas, 799 F.2d at 888 (same). However, if the four-month
deadline is in the statute as a “guidepost” rather than as a categorical mandate
(as suggested by the court of appeals, Pet. App. 15a), the remedy would be
under the APA, rather than Section 304(a)(2). Sierra Club v. Thomas, 828
F.2d at 788 n.39, 792 n.62; cf. National Congress of Hispanic American
Citizens vy. Usery, 554 F.2d 1196 (D.C. Cir. 1977); National Congress of
Hispanic Amerwan Cuizens v. Marshall, 626 F.2d 882, 891 (D.C. Cir. 1979).
And, if a four-month deadline does not apply at all, suits to compel agency ac-
tion unreasonably delayed may still be brought under the APA. Sierra Club
¥. Thomas, 828 F.2d at 796-797; Cutler v. Hayes, 818 F.2d 879, 895 & n.137
(D.C. Cir. 1987). Under any of these interpretations, judicial relief is available
to compel agency action unjustifiably delayed.
a
;
35
this remedy will require judicial inquiry in enforcement cases, it
is the kind of judicial inquiry in enforcement actions that the
Statute contemplates. See 42 U.S.C. 7413(b).2’
States may also use non-judicial remedies to protect their in-
terest in timely action on SIP-revision proposals. The States can
and have expressed their concerns directly to EPA. The agency,
in response, has implemented significant reforms designed to
speed up the SIP review process. Indeed, EPA’s recent SIP
' Process Reform is a product of a task force made up of State
and EPA officials. See 54 Fed. Reg. 2215-2216 (1989). Carrying
out the recommendations of the task force, EPA has imple-
mented significant changes in its SIP processing procedures, in-
cluding: review of proposed SIP revisions for completeness
against specific criteria, and a requirement of prompt modifi-
cation of incomplete submittals; delegation of decisional au-
thority to Regional Administrators for SIP actions which are
not nationally significant; identification of minor revisions
which do not require notice and comment; use of expedited
notice and comment procedures for other revision proposals;
and provision for “grandfathering” of SIP revisions prepared in
*? Indeed, the Alcan Foil court, while expressing skepticism about the ef-
ficacy Of a suit to compel agency action, found the assessment-of-penalties
provision itself a sufficient alternative remedy, and one already provided by
statute. 889 F.2d at 1520-1521.
The Brief Amcius Curiae of the Chamber of Commerce of the United States
charges (Br. 15) that EPA engaged in “calculated conduct” to deprive the State
of Kentucky of its statutory prerogatives, by allegedly delaying action on a SIP
revision until applicable requirements changed in a way that undercut the pro-
posed revision. This contention was raised by Alcan Foil for the first time dur-
ing EPA's appeal to the Sixth Circuit, and was sharply disputed by EPA. The
court of appeals did not resolve the issue, noting that it should be considered
by the district court on remand. 889 F.2d at 1521. As a general matter, it seems
plain that penalties would be unwarranted for a period of prejudicial delay
that was caused solely by the deliberate conduct of the agency. Even if a delay
was not deliberate, we agree that the source’s good faith in complying with a
clearly approvable SIP revision would be a factor the district court should con-
sider in determining whether to assess penalties. Conversely, if the proposed
SIP revision ts clearly deficient, a source’s reliance on it would not warrant a
reduction in penalties.
36
good faith by a State but which may become deficient because
of a change in EPA policy subsequent to state submission. /d. at
2217-2220. These changes, brought about by a cooperative
State-federal effort, should go far toward meeting any state
concerns about excessive delay.
At the same time, the interest of all States — and of the general
public—in clean air would be undermined by an enforcement
bar. As Massachusetts itself put it in arguing against an enforce-
ment bar in the court of appeals, “[sJince the existing SIP is not
suspended in any sense by the pendency of a proposed revision
and remains the valid standard * * * EPA must be able to en-
force it.” Massachusetts C.A. Amicus Br. 11. See also Pet. App.
l6a (“We find it significant that not even the Commonwealth
argues for an enforcement bar, thus recognizing that its interests
occasionally must yield to the overriding goal of improving our
nation’s air.”). Furthermore, an enforcement bar would provide
an incentive for quick action only in SIP revision review cases
where enforcement is implicated, /.e., cases where the proposed
SIP revision loosens restrictions or deadlines. It could thus have
the perverse result of encouraging the Agency to concentrate
scarce resources on SIP revisions that relax air quality re-
quirements, drawing resources away from the many SIP revi-
sions that tighten requirements or deadlines.}*
3. Petitioner’s second policy argument (Br. 34-37) is that an
enforcement bar is necessary to avoid “seriously negative im-
pacts on regulated industries.” /d. at 34. This contention is un-
founded.
The thrust of petitioner’s objection is that industries are sub-
ject to “conflicting federal and state regulatory requirements.”
Br. 34. This asserted “conflict,” however, stems from the Act’s
requirement that EPA approve a state SIP revision before it can
become effective. Thus, as petitioner recognizes (Br. 34 n.43),
there will always be a period during which a State-proposed re-
vision and a federally-approved SIP will differ. If federal and
** Petitioner specifically urges (Br. 25-26) that EPA should give priority at-
tention to those SIP revisions that are relevant to enforcement actions. Con-
gress, however, has given no indication that EPA should so order its priorities.
37
state requirements are actually in conflict, however, by virtue of
the federal requirement being more stringent than the state re-
quirement, then the federal requirement clearly controls under
basic preemption principles. See, e.g., Northwest Central Pipe-
line Corp. v. State Corporation Comm'n, 109 S. Ct. 1262, 1273
(1989); Florida Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 132, 142-143 (1963).2% Moreover, the Clean Air Act itself
makes clear that the approved SIP is the “applicable implemen-
tation plan” until a revision is approved by EPA (§ 110(d); 42
U.S.C. 7410(d)).4°
Even if there were a problem with inconsistent obligations,
however, an enforcement bar is not well-tailored to address it.
For one thing, it would operate even where, as here, there is no
threat of inconsistent state enforcement. For another, the “cer-
tainty” it promises would be illusory because the source would
be subject to the possibility of a citizen suit to enforce the ex-
isting SIP even if EPA’s hands were tied.*' Instead of producing
** This principle fully applies to petitioner's hypothetical example (Br. 35
n.45) of conflicting equipment requirements: in the case of a direct conflict,
the federal requirement controls. To the extent petitioner suggests that its.
hypothetical describes this case, petitioner is mistaken. The Massachusetts SIP
contained emission limitations for sources of pollutants, effective December
31, 1985. The choice of methodologies (and equipment) for meeting that
limitation was the source’s. See J.A. 29.
*° If the proposed revision is ore stringent than the approved SIP, and if ut
is immediately applicable as a matter of state law, the state law is enforceable
(42 U.S.C. 7416). In such a circumstance, comphance with the more stringent
state requirement would subsume compliance with, and not “conthet” with,
the less stringent federal requirement.
+! The Clean Air Act provides that a citizen may tile an injunctive action
against any source “alleged to be in violation of * * * an emission standard or
limitation under this chapter,” which ts detined to include “a schedule or
timetable of comphance” and “any condition or requirement under an ap-
pheable implementation plan relating to * * * ar quality maimtenance plans.”
$$ 304¢ax1), COOL), and (3); 42 U.S.C. 7604(aK1), COOL), and (13).
Although the American Cyananmid court had no occasion to consider whether
a citizen suit to entorce the applicable implementation plan would also be
barred if EPA takes more than tour months to act on a SIP revision proposal,
that court’s concerns to penalize EPA tor tty delay and to mpsure against im-
proper rejection of a SIP revision logically would not apply to citizens
38
certainty, an enforcement bar would lead to a situation where
enforcement may or may not take place depending on whether
there exists a citizen group willing and able to mount the
challenge. Cf. Amicus Br. of National Governors Ass’n, et al.
18 n.17 (“It would be anomalous to create a situation in which
States could enforce, private citizens could enforce; but the ex-
pert federal agency with explicit statutory authority could
not.”).*?
Petitioner’s additional suggestion (Br. 36) that an enforce-
ment bar is needed to protect companies which “undertake im-
proved compliance strategies” is also unpersuasive. EPA can
bring an action only when the source fails to comply with the ex-
isting SIP. If the source is truly undertaking “improved” com-
_pliance, this problem should not arise. To the extent that it does
arise — because, as petitioner claims, non-compliance with the
existing SIP is justified by long-term investments in better com-
pliance technologies and by interim compliance with the pro-
posed SIP revision —the possible reduction of penalties in Sec-
tion 113(b) is once again an adequate remedy. Such claims go to
the “equities of [the] case” (Pet. App. 17a) and the “seriousness
of the violation” (§ 113(b); 42 U.S.C. 7413(b)) that are part of
the district court’s consideration of penalties.*
bringing an enforcement action. Moreover, it would violate the language and
spirit of Section 304 to bar citizen suits merely because EPA could not bring an
action. Congress spelled out the limits on citizens suits with specificity; such an
action is barred where EPA “is diligently prosecuting a civil action”
(§ 304(b)(1)(B); 42 U.S.C. 7604(b)(1)(B)), but not where EPA has been dis-
qualified from doing so because of its delay.
*? To reduce any differences between state and federal requirements while a
SIP revision is pending, EPA has provided States with the option of “parallel
processing” in which the state and federal processes would proceed
simultaneously. See 47 Fed. Reg. 27,073-27,074 (1982). Contrary to the state-
ment of amici Motor Vehicle Manufacturers Association et al. (Br. 14 & n.14),
EPA has never “discontinued” the parallel processing option, and the pro-
cedure is used when a State appropriately chooses to exercise that option. See,
e.g., 54 Fed. Reg. 14,969 (1989).
*} Petitioner's contentions about its own efforts at “improved compliance”
(Br. 36; see also Br. 6) can of course be appropriately presented to the district
39
4. Petitioner’s third policy argument (Br. 37-40) is that an
enforcement bar is needed to preserve the integrity of EPA’s
SIP review process. However, the speculative possibility that an
enforcement action could undermine even-handed administra-
tion and influence the outcome of the final decision on a SIP
revision stems not from agency delay but from Congress’s deci-
sion to assign both enforcement and SIP review responsibilities
to the same agency (Pet. App. 16a-17a). Congress evidently
concluded that the two functions could be carried out fairly by
the same agency. Moreover, Congress provided an adequate
remedy for anyone aggrieved by an allegedly biased decision by
providing for review of final agency decisions in the courts of
appeals. § 307(b)(1); 42 U.S.C. 7607(b)(1). See also Bethlehem
Steel Corp. v. EPA, 638 F.2d 994, 1010 (7th Cir. 1980) (ap-
propriate remedy where enforcement considerations may have
improperly affected EPA’s decision on delayed compliance
order is vacation and remand to agency under Section 307(b)).
Indeed, petitioner has filed suit under Section 307(b) to
challenge the propriety of EPA’s denial of the SIP revision in
court. In light of petitioner's subntission of its claim to this Court as a
justification for an across-the-board enforcement bar, however, it may be
notable that petitioner's decision to replace the existing lacquer lines with a
BC/CC system was made explicitly to “enable the plant to produce vehicles
with a finish quality competitive in today’s world market” and to be “consis-
tent with the trend in the entire domestic auto industry” (J.A. 41); that the
BC/CC system was no longer “innovative” technology by 1985 (J.A. 94); and
that the reason for low emission rates at the new facility was, at least in part,
the separate statutory requirement of a “lowest achievable emission rate” for a
new facility in a nonattainment area (42 U.S.C. 7502(b)(6), 7503(2)). Further-
more, construction of the new facility does not necessarily justify the continu-
ing high rate of emissions from the old facility after the SIP compliance date
and before petitioner closed it. Finally, petitioner's comparison of the $20
million cost of placing emission controls on the lacquer lines with the $200
milhon cost of the BC/CC system (Br. 6 & n.3) overlooks the fact that the $20
milhon figure represents the cost of pollution controls, while the $200 million
figure represents the cost of an entire replacement coating facility which peti-
troner desired to install, at least in substantial part, for competitive reasons
unrelated to pollution control (J.A. 41).
40
this case (supra at n.8)* This Court should reject the invitation
to create an additional remedy to address this asserted problem,
especially one as broad as a complete preclusion of enforcement
whenever EPA has taken more than four months to act on a SIP
revision. See Middlesex County Sewerage Authority v. National
Sea Clammers Ass'n, 453 U.S. 1, 14-15 (1981)) (“it is an elemental
canon of statutory construction that where a statute expressly
provides a particular remedy or remedies, a court must be chary
of reading others into it”) (quoting Transamerica Mortgage Ad-
visors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)). See also Touche
Ross & Co. v. Redington, 442 U.S. 560, 574 (1979) (the Court is
** Petitioner's particular allegations challenging EPA's denial of the pro-
posed SIP revision will be considered in that action with the benefit of a full
record, and are not properly considered here. Once again, however, because
petitioner repeats those allegations so persistently, a brief comment on two
points is warranted. First, petitioner claims that a reference in the December 2,
1986, notice of »roposed disapproval to “an enforcement mechanism” ts
evidence of imp oper commingling of functions. Br. 38 n.48. See J.A. 96
(“This disapproval will prevent GM from deferring the topcoat and final
repair compliance dates (from December 31, 1985 to August 31, 1987) by
revising the State r2gulation. Extensions of the December 31, 1985 date should
instead be obtaincd through an enforcement mechanism.”). However, the
reference is simply to the Delayed Compliance Order (DCO) procedure,
spelled out in the enforcement section of the Act (§ 11Md); 42 USC
7413d)). A DCO contains a schedule with increments of progress that ensures
compliance as expeditiously as practicable, and has several other advantages
over a SIP revision, which does not provide the same certainty of expeditious
comphance. Congress contemplated that extensions would generally be han-
died through this procedure (see H.R. Rep. No. 294, supra, at 56-58), and ex-
tensive negotiations regarding a possible DCO took place while EPA was
reviewing the proposed SIP revision (J.A. 75, 89). This reference to the DCO
procedure in no way indicated that EPA had ceased to view the SIP revision
proposal as a regulatory matter.
Second, petitioner emphasizes (Br. 38) that the final disapproval was pub-
lished un the Federal Register on September 16, 1988, which was also the day that
EPA's opening brief was filed in the court of appeals. (The Admunistrator had
signed the final disapproval twelve days earlier, on September 4, 1988. 53 Fed.
Reg. 36,014.) Petitioner's suggestion that this evidences some wnpropricty on
EPA's part is without foundation, and, in any event, can be considered fully in
the pending action challenging EPA's disapproval of the SIP
41
“extremely reluctant to imply a cause of action * * that is
significantly broader than the remedy that Congress chose to
provide”). .
5. The American Cyanamid court explicitly rested its en-
forcement bar, in part, on a closely related policy argument — an
asserted need to punish the agency for delay. See American
Cyanamid, 810 F.2d at 499 n.9 (rejecting Duquesne Light ap-
proach because, under it, “EPA * * * pays no price for its con-
tumaciousness”); Pet. Br. 21. That rationale fails for several
reasons.
As an initial matter, careful EPA evaluation of proposed revi-
sions, which must be issued for public comment and submitted
to OMB review, will generally take substantially longer than
tour months. EPA has itself established timetables for agency
action which are a far more realistic reflection of the underlying
legal and administrative complexities presented by SIP revisions
that may involve many federal, state, and private parties and
that must also clear the hurdles posed by prevailing ad-
ministrative law jurisprudence. In these circumstances, failure
to observe a four-month timetable hardly merits automatic and
severe judicially-invented punishment.
Moreover, as the court of appeals in this case noted, “[i}f the
EPA cannot enforce existing standards, it is the public and not
the EPA that is hurt.” Pet. App. I4a. See also Alcan Foil, 889
F.2d at 1520 (“The public should not suffer because of EPA's
failures.”); D. Currie, supra, at 114 (result of American
Cyanamid is that “the public is punished for the Agency's inac-
tion”). Under the American Cyanamid rule, EPA is absolutely
banned from enforcement actions after the four-month period
and during the pendency of a SIP revision proposal. The Agen-
cy cannot enforce the approved SIP, even though it remains the
“applicable implementation plan” (§ 110(d); 42 U.S.C.
7410(d)), and it cannot even enforce the proposed SIP because it
is not yet the “applicable implementation plan.” It does no
disservice to the States to recognize that they are sometimes put
under enormous pressure to accommodate major sources of
employment. Congress recognized this fact of life when it pro-
42
vided for federal review of SIPs and SIP revisions.*’ An en-
forcement bar could encourage non-complying sources to pro- —
pose, and States to submit, last-minute SIP revision proposals
for the purpose of staying EPA enforcement actions and
postponing compliance with SIP provisions which Congress re-
quired to be achieved within the deadlines set forth in the Act.**
If existing SIPs cannot be enforced by EPA, noncomplying
sources in States that propose revisions will gain unfair advan-
tage over those in other States, and the public will suffer from
further delays in attainment of national air quality standards,
contrary to Congress's clear intent.*’ In light of the fact that
EPA is rarely able to complete final action on SIP revisions
within four months, adoption of the American Cyanamid rule
would seriously undermine the Agency’s ability to enforce the
Act as Congress intended.
The facts of this case illustrate the negative results of an en-
forcement bar. Petitioner had more than ample time (five years)
to bring its plant into compliance with the emission limits of the
1980 SIP either by installing control devices on its lacquer
coating lines or by converting to the basecoat/clearcoat process
without undue delay. Instead of making the investment
necessary to achieve this result, petitioner waited until shortly
before the deadline to propose a solution that by that time re-
** Cf. United States v. Ford Motor Co., 814 F.2d at 1102 (“[I)}f state control
of ambient air emissions were final, in short order, major shifts of smoke stack
industries to states with the most lenient pure air standards would inevitably
take place.”). See also J.A. 125 (district court notes hardship to Framingham
workers if “the plant was moved out of state”).
*© Cf. W. Rodgers, supra, at § 3.39 (“The decision in American Cyanamid
extends to the polluter the profit from delay. * * * [T}he opimion may en-
courage SIP-submitters to develop the art of the ‘unapprovable package,’
replete with data shortages and loose ends * * *.”).
*’ See, e.g, H.R. Rep. No. 294, supra, at 72 (“The more [that] legal
challenges to the regulations can delay enforcement, the longer any in-
vestments for control equipment can be deterred.”), Duquesne Light, 698 F 2d
at 463 (Congress added the Section 120 recoupment provisions in 1977, in part
because “the expense of reducing emissions [was] making ut protiuable for in-
dustry to delay needed expenditures as long as possible”).
43
quired a one and one-half-year extension of the SIP time limits.
Allowing petitioner to follow this course of conduct without
penalty would ignore the damage to the public interest caused
by the one and one-half-year delay in reaching the stricter emis-
sion limits, and would give petitioner an economic advantage
over companies that made the investments necessary to meet ap- -
plicable limits in a timely fashion. Worse, adopting an enforce-
ment bar could encourage other sources to propose last-minute
SIP revisions, secure in the knowledge that EPA would not be
able to enforce the deadlines of the existing SIP for a significant
length of time.**
Most fundamentally, the punishment rationale—and the
American Cyanamid rule generally—reflects a_ serious
misconception of the court's role. Congress provided for en-
forcement of the “applicable” SIP (42 U.S.C. 7413(b)(2)), and
made no exception for the situation when a proposed revision
has been pending for more than four months. It is not the prov-
ince of the judiciary to carve out such an exception based on no-
tions of “what accords with ‘common sense and the public
weal.’ ” TVA v. Hill, 437 U.S. 153, 195 (1978). Cf. National
Crushed Stone, 449 U.S. at 83(" ‘The question * * * is not what
a court thinks is generally appropriate to the regulatory process;
it is what Congress intended * * *’”) (quoting from £./. du
Pont de Nemours & Co. v. Train, 430 U.S. 112, 138 (1977)).
Thus, neither the asserted concern for the role of the States,
nor the claim of unfairness to industry, nor the stated need to
discipline and punish the Agency justifies an enforcement bar.
To the extent that such concerns are substantial, less drastic
** The Alcon Foi court stated in dictum that “the court may assess penalties
trom the date of the notice of noncompliance” (889 F.2d at 1521). In fact,
however, in a Section 113 proceeding, penalties may be assessed from the first
day of violation (see, e.g., United States v. SCM Corp., 667 F. Supp. 1110,
1122-1123 (D. Md. 1987)); in a Section 120 proceeding, in contrast, as in
Amerwan Cyananud, the statute ts explicit that administrative penalties accrue
only from the date of a “notice of noncompliance” (§ 120(d,3)(C); 42 U.S.C
7420 GK INC)
44
remedies are readily available and are already provided by
statute.** Accordingly, the court of appeals correctly reinstated
the enforcement action against petitioner and remanded for
consideration of appropriate penalties, if any.
We agree with the court of appeals (Pet. App. 15a, 17a) that
the district court in setting penalties may consider the equities of
the case along with the reasonableness of the period taken by
EPA for processing the SIP revision and, if unreasonable, any
resulting prejudice to petitioner. The reasonableness of any
Agency delay will depend on a number of factors, including
whether the SIP revision presented novel or complex issues, and
whether the delay was caused by EPA or by other pariies.** The
district court will then have a full opportunity to take account
of the various claims of unfairness which petitioner here asserts
in favor of an enforcement bar.
** As we noted in our brief in opposition to certiorari (at 14-15), Congress is
currently considering proposed amendments to the Clean Aw Act regarding
EPA review of SIP revisions. We will keep the Court apprised of any pertinent
developments.
**® Issues which may arise in future cases are context-specific, and per se
rules would generally be inadvisable. The reasonableness inquiry should be in-
formed, however, by the Agency guidelines on SIP revision processing (see p.
23, supra). While those guidelines have been adopted for internal Agency pur-
poses and do not confer rights on other persons, they generally illuminate a
proper reconciliation of the need for prompt action on SIP revisions with the
need to comply with rulemaking requirements and to carry out the important
review role that Congress mtended.
45
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
CLIFFORD M. SLOAN
Assistant to the Solicitor General
MARTIN W. MATZEN
Davin C. SHILTON
Attorneys
E. DONALD ELLIOT
General Counsel
DAVID P. NOVELLO
TimoTHy L. WILLIAMSON
Attorneys
Environmental Protection Agency
FEBRUARY 1990
APPENDIX
In addition to the statutory provisions set out in the Appendix
tO petitioner’s brief, the following provisions of the Clean Air
. Act are pertinent.
’ 1. Section 110(d), 42 U.S.C. 7410(d), provides:
(d) Applicable implementation plan
For purposes of this chapter, an applicable implementa-
; tion plan is the implementation plan, or most recent revi-
sion thereof, which has been approved under subsection
{ (a) of this section or promulgated under subsection (c) of
. this section and which implements the requirements of this
section.
2. Section 110(g), 42 U.S.C. 7410(g), provides:
(g) Governor's authority to issue temporary emergency
suspensions
(1) Inthe case of any State which has adopted and sub-
mitted to the Administrator a proposed plan revision
which the State determines —
(A) meets the requirements of this section, and
(B) is necessary (i) to prevent the closing for one
year or more of any source of air pollution, and (ii) to
prevent substantial increases in unemployment which
would result from such closing, and
which the Administrator has not approved or disapproved
under this section within the required four month period,
the Governor may issue a temporary emergency suspension
of the part of the applicable implementation plan for such
State which is proposed to be revised with respect to such
source. The determination under subparagraph (B) may
not be made with respect to a source which would close |
without regard to whether or not the proposed plan revi-
sion is approved.
(2) A temporary emergency suspension issued by a
Governor under this subsection shall remain in effect for a
maximum of four months or such lesser period as may be
specified in a disapproval order of the Administrator. The
(la)
2a
Administrator may disapprove such suspension if he deter-
mines that it does not meet the requirements of this subsec-
tion.
* * * * *
Section 113, 42 U.S.C. 7413, provides in pertinent part:
(a) Finding of violation; notice; compliance order; civil action;
State failure to enforce plan; construction or modification of
major stationary sources
(1) Whenever, on the basis of any information
available to him, the Administrator finds that any
person is in violation of any requirement of an ap-
plicable implementation plan, the Administrator shall
notify the person in violation of the plan and the
State in which the plan applies of such finding. If
such violation. extends beyond the 30th day after the
date of the Administrator’s notification, the Adminis-
trlor may issue an order requiring such person to
comply with the requirements of such plan or he may
bring a civil action in accordance with subsection (b)
of this section.
* * * **
(b) Violations by owners or operators of major stationary
sources
The Administrator shall, in the case of any person which
is the owner or Operator of a major stationary source, and
may, in the case of any other person, commence a civil ac-
tion for a permanent or temporary injunction, or to assess
and recover a civil penalty of not more than $25,000 per
day of violation, or both, whenever such person —
(1) violates or fails or refuses to comply with any
order issued under subsection (a) of this section; or
(2) violates any requirement of an applicable im-
plementation plan (A) during any period of Federally
assumed enforcement, or (B) more than 30 days after
having been notified by the Administrator under sub-
3a
section (a)(1) of this section of a finding that such per-
son is violating such requirement * * *.
Section 172, 42 U.S.C. 7502, provides in pertinent part:
(a) Expeditious attainment of national ambient air quality
standards
(1) The provisions of an applicable implementa-
tion plan for a State relating to attainment and
maintenance of national ambient air quality stand-
ards in any nonattainment area which are required by
section 7410(a)(2)(1) of this title as a precondition for
the construction or modification of any major sta-
tionary sOurce in any such area on or after July 1,
1979, shall provide for attainment of each such na-
tional ambient air quality standard in each such area
as expeditiously as practicable, but, in the case of na-.
tional primary ambient air quality standards, not
later than December 31, 1982.
(2) Inthe case of the national primary ambient air
quality standard tor photochemical oxidants or car-
bon monoxide (or both) if the State demonstrates to
the satisfaction of the Administrator (on or before the
time required for submission of such plan) that such
attainment is not possible in an area with respect to
either or both of such pollutants within the period
prior to December 31, 1982, despite the implementa-
tion of all reasonably available measures, such provi-
sions shall provide for the attainment of the national
primary standard tor the pollutant (or pollutants)
with respect to which such demonstration is made, as
expeditiously as practicable but not later than
December 31, 1987.
(b) Requisite provisions of plan
The plan provisions required by subsection (a) of this
section shall —
(1) be adopted by the State (or promulgated by the
4a
Administrator under section 7410(c) of this title) after
reasonable notice and public hearing;
(2) provide for the implementation of all
reasonably available control measures as expeditious-
ly as practicable;
(3) require, in the interim, reasonable further pro-
gress (as defined in section 7501(1) of this title) in-
cluding such reduction in emissions from existing
sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available con-
trol technology;
w US GOVERNMENT PRINTING OFFICE 1990— 262 293/00766
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.