Amicus Curiae Brief — General Motors Corp. v. United States

In THE

Supreme Court of the Tuited States

OcToper TERM, 1989

GENERAL Motors CORPORATION,

7 Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL LEAGUE OF CITIES,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

US. CONFERENCE OF MAYORS, AND

INTERNATIONAL CITY MANAGEMENT ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF NEITHER PARTY

CHARLES A. PATRIZIA BENNA RUTH SOLOMON

Lorie J. SCH MIDT-PRAUL Chief Counsel

PAUL, HASTINGS, JANOFSKY Joyce HoUMes BENJAMIN

& WALKER BEATE BLocH

Twelfth Floor STATE AND LOCAL L&GAL

1060 Connecticut Ave., N.W. CENTER

Washington, D.C. 20036 444 North Capitol Street, N.W.

(202) 223-9000 Suite 249

Of Counsel Washington, D.C. 20001

(202) 638-1445

Counsel of Record for the

Amici Curiae

Wiheow Eras Paiwrine Co inc - 788-0086 Waenimeron 0 C 80001

7

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2. Whether EPA's f

approved revision within the

a source is in compliance with

authority to enforce the un

under the Act to disapprove the

source unless EPA demonstra

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TABLE OF CONTENTS

QUESTIONS PRESENTED 22.2. .--22.-----ce-ecceeceoeseeene

ED I BA ID ccccccsicnccsccecscccececescssocecenessees

INTEREST OF THE AMICI CURIAE 00.

ceeded cetnictinerenatennncncnmensantenectonsnsnatimmsnanessess

A. Statutory Background 0000... —

B. The Massachusetts SIP Revision...

I.

Il.

III.

IV.

CONGRESS CHOSE A SCHEME OF -

ERATIVE FEDERALISM TO IMPLEM

THE CLEAN AIR ACP nnn... :.......:ccccccscccccoeee-

EPA MUST TAKE FINAL ACTION ON A

SIP REVISION WITHIN FOUR MONTHS OF

ITS SUBMITTAL

EPA HAS BREACHED THE LIMITS CON-

GRESS PLACED ON ITS AUTHORITY,

THEREBY USURPING THE STATE’S ROLE

AND FAILING TO ACT IN ACCORDANCE

ES CD cctnsertsvrnsenecnsescsresecenecnemsanesseesnpesnansnsseuas

a

C. EPA Has Acted Arbitrarily, Capriciously,

And Not In Accordance With Law ...............

THIS COURT SHOULD INTERPET THE

ACT AS CONTEMPLATING A REMEDY

THAT REQUIRES EPA TO ACT WITHIN

STATUTORY LIMITS............. ————

ES eS

4

iv

sy ovwrewewe -

10

14

14

15

16

18

CASES:

iv

TABLE OF AUTHORITIES

Page

American Cyanamid Co. v. EPA, 810 F.2d 493

(5th Cir. 1987) -........... 10, 14

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

GD BE eictccccnceccrsenccctiincsvnsttiniinmnniananieiaimiennitamtins 14

Bowen v. American Hospital Ass'n, 476 U.S. 610

ETI SIENS POPE CS Hemme a ee ee 17

Brock v. Pierce County, 476 U.S. 253 (1986)... 20

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

Council, 467 U.S. 837 (1964) .......................-...... 13

Clark v. Uebersee Finanz-Korporation, A.G., 332

ee 12

Connecticut v. EPA, 696 F.2d 147 (2d Cir.

EEE ee ae 7

Council of Commuter Organiettions v. Gorsuch,

683 F.2d 648 (2d Cir. 1982) ..... | SEERA ae 10

Council of Commuter Organizations | v. Thomas,

799 F.2d 879 (2d Cir. 1986) ...............00000..... «. 10

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

Se, Fe cennecistintiahineeneeeaimaentesatatimnmnaiatiiatinessl 4, 10,19

Friends of the Earth v. _ EPA, 499 F.2d 1118 (2d

Cir. 1974) .. 17

General Motors Corp. v. EPA, ‘871 F.2d 495 (5th

ERT aR re aaa 10

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987) ........................... 12

Heckler v. Chaney, 470 U.S. 821 (1985) ................ 17

Higgins v. Smith, 308 U.S. 473 (1940) .................... 12

Indiana & Michigan Electric Co. v. United States

EPA, 733 F.2d 489 (7th Cir. 1984) ..... oe 14

Pennsylvania v. Union Gas Co., 109 8. Ct. 2273

TIED ccstienniecnnsinnennemnnanineiniammsennnnemnaesene 11

Rainwater v. United States, 356 U.S. 590 (1958).. 12

SEC v. Sloan, 436 U.S. 103 (1978) ........................... 13

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

1983), cert. denied, 468 U.S. 1204 (1984)... 22

Sierra Club v. Ruckelshaus, 602 F. Supp. 892

RG, UU ee 22

Train v. Natural Resources Defense Covneil, 421

ie |, _ =e TE PES See Pees 9, 10,17

v

TABLE OF AUTHORITIES—Continued

Page

United States v. Alcan Foil Products Division,

889 F.2d 1513 (6th Cir. 1989) ................... 10, 11, 13, 14

STATUTES:

Administrative Procedure Act, 5 U.S.C. 551 et

CN passim

I rerinnicnrennenecmnniemen 17

Clean Air Act, 42 U.S.C. § 7401 et eee. “(1982 &

A passim

8) EY 3

42 U.S.C. § 7410 (1982) -0000 Be nestle passim

PC passim

ET er 4,9

42 U.S.C. § 7604 (1962) 2.2... 18, 22

42 U.S.C. § 7607 (1982) sicsiaielinilimsiaseaaieartaleneaii 23

Clean Air Act Amendments of 1977, Pub. L. No.

Cn nial 11, 12,13

Clean Water Act, 33 U.S.C. § 1251 et seq. (1982

eB etilintariterinitintitienasinnitnineeniaeaiians x

Comprehensive Environmental Response, Com-

pensation, and Liability Act of 1980, 42 U.S.C.

§ 9601 et seq. (1982 & Supp. V 1987)... x

Resource Conservation and Recovery Act of 1976,

42 U.S.C. § 6901 et seq. (1982 & Supp. V 1987).. x

Safe Drinking Water Act, 42 U.S.C. § 300f et seq.

(1982 & Supp. V 1987) ..............c.cccccccccccccceceeeeeees x

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. § 1201 et seq. (1982 & Supp. IV

iE AEE Se ee 8

RULES AND REGULATIONS:

46 Fed. Reg. 51,386 (Oct. 20,1981) 0000000... 6

51 Fed. Reg. 42,391 (Dec. 2, 1986)... 6

51 Fed. Reg. 42,392 (Dec. 2, 1986) 0.0.0.0. 6

53 Fed. Reg. 36,011 (Sept. 16, 1988)... 6

54 Fed. Reg. 2138 (Jan. 19, 1989) 0... 14

54 Fed. Reg. 2139 (Jan. 19, 1989) 0. 14

vi

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS:

D. Currie, Air Pollution Federal Law & Analysis

(1981)

ret eee eee eee eee eee eee eee ee eee eee eee eee ee ee eee

In THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-369

GENERAL Motors CORPORATION,

. Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL LEAGUE OF CITIES,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

U.S. CONFERENCE OF MAYORS, AND

INTERNATIONAL CITY MANAGEMENT ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF NEITHER PARTY

INTEREST OF THE AMICI CURIAE

The amici, organizations whose members include state,

county, and municipal governments and officials through-

out the United States, have a compelling interest in legal

issues that affect state and local governments.

Congress established a cooperative partnership between

the States and the federal government to control air pol-

lution. Under the Clean Air Act, as amended, 42 U.S.C.

2

$ 7401 et seg. (1982 & Supp. V 1987) (the “Act”), the

States or their regional administrative bodies are obli-

gated to meet federally established national standards

§ 7410(a) (2)(H) (1982). The Act requires a State to

submit its revisions to EPA, but limits EPA’s course of

consideration (as to both time and substantive criteria).

Amici have an obvious and compelling concern in the

questions (1) whether the Act imposes an obligation upon

EPA to act finaily upon each state-proposed_revision to

an applicable state implementation plan (“SIP”) within

four months of the revision’s submittal to EPA, and (2)

whether the Act, the Administrative Procedure Act, as

amended, 5 U.S.C. § 551 et seg. (1988), and considera-

tions based on federalism and sound public policy impose

limits on EPA’s enforcement of the unrevised SIP while

EPA is considering the proposed revision.

Amici have a strong interest in requiring EPA to

adhere to the statutory four-month period of considera-

tion. Delays in EPA’s approval create uncertainties re-

garding the States’ primary role in establishing the emis-

sion limitations applicable to specific sources; undercut

the enforcement of state-determined policies; reduce the

likelihood that sources will make interim efforts to com-

ply with state policies; and create incentives for sources

to refuse to adopt newer, cleaner technologies in place of

other control measures.

Similarly, amici are concerned with the remedy appro-

priate for EPA's delays in considering SIP revisions, in-

cluding limitations on EPA's enforcement authority. It is

essential that this Court interpret the Act as

a remedy that both provides incentives for EPA to act in

a timely fashion and assures that EPA’s delay does not

give it greater authority or leverage over the States’

choices than it possesses statutorily.

Amici submit that the decision of the court below is

correct in holding that EPA must act finally on a revision

to a state implementation plan within four months of the

revision’s submittal te EPA, but is wrong as to the con-

straints a breach of that four-month deadline imposes on

EPA’s enforcement of the unrevised plan. Because this

Court’s decision will have a direct effect on matters of

importance to @mict and their members, amici submit

this brief to assist the Court in its resolution of the case."

STATEMENT

A. Statutory Background.

Under the Clean Air Act, EPA establishes National

Ambient Air Quality Standards «“NAAQS”), which set

limits on concentrations of certain pollutants in outside

air so as to protect the public health and welfare. 42

U.S.C. £ 7409 . 1982). Each State then prepares a SIP

that “provides for implementation, maintenance, and en-

forcement of |NAAQS) in each air quality control re-

gion (or portion thereof) within such State.” 42 U.S.C.

£7410'a' it) (1°82). The SIP must include “emission

limitations, schedules, and timetables for compliance with

such limitations, and such other measures as may be

necessary to insure attainment and maintenance of

(NAAQS! including, but not limited to, transportation

controls, air quality maintenance plans, and preconstruc-

tion review of direct sources of air pollution.” 42 U.S.C.

$ 74101a) 12) 1B) (1982).

ee

' The parties’ letters of consent. pursuant te Rule 37 of the Rules

of the Court, have been filed with the Clerk.

a

4

Each State must submit its SIP to £PA for approval,

which the statute requires EPA to grant within four

months unless EPA determines that the SIP will not in-

sure attainment of the national standards. 42 U.S.C.

$ 7410(a) (2) (1982). EPA may substitute its own im-

plementation plan for a State’s only when the state-sub-

mitted SIP is deemed unacceptable. 42 U.S.C. § 7410(c)

(1) (1982).

The Act expressly contemplates that SIPs will be re-

vised. Indeed, to be approved initially a SIP must con-

tain provisions for its revision as new technologies be-

come available, as standards change, or as required to

assure continued maintenance of compliance status. 42

U.S.C. $ 7410(a)(2)(H) (1982). Such revisions are

subject to EPA approval in the same manner as initial

submittals. 42 U.S.C. § 7410(a)(3) (1982).

The States are required to include enforcement pro-

grams in their SIPs. 42 U.S.C. § 7410(a) (2) (D)

(1982). Congress also gave EPA authority to enforce

SIP provisions under Sections 113 and 120 of the Act

(42 U.S.C. $$ 7413 and 7420 (1982)), although primary

enforcement is in the hands of the State. Before initiat-

ing an enforcement action, EPA must give notice to the

State to permit the State to exercise its enforcement

options. 42 U.S.C. §$ 7413(a)(1) (1982). When civil

monetary penalties are to be assessed, “the courts shall

take into consideration ‘in addition to other factors) the

size of the business, the economic impact of the penalty

on the business, and the sericusness of the violation.”

42 U.S.C. § 7413(b) (1982).

“Section 120 of the Act also allows EPA administratively to

assess noncompliance penalties on sources failing to comply with

state emission limitations. 42 U.S.C. § 7420 (1982). Such penalties

are to prevent noncomplying sources from gaining an economic

advantage over complying sources. Duquesne Light Co. v. EPA,

698 F.2d 456, 463 (D.C. Cir. 1983).

5

B. The Massachusetts SIP Revision.

As part of its obligations under the Clean Air Act, as

amended in 1977, Massachusetts revised its SIP in 1979.

These revisions required a car assembly plant owned and

operated by General Motors (“GM”) to achieve specified

levels of emissions by December 1985. In late 1984 GM

submitted a proposed schedule for installation of tech-

nology to comply with that obligation. Six months later,

following discussions with state officials, GM proposed

instead to construct a new facility and make significant

capital investment in a new technology that would re-

duce emissions at the plant below those required by the

1979 revised SIP. Construction time for the new facility

required an extension of the compliance deadline to De-

cember 1987. (EPA had already approved Massachu-

setts’ request that it be given until December 31, 1987,

to achieve compliance with the NAAQS.) The State, af-

ter consideration of a full administrative record, includ-

ing a public hearing in which EPA participated, agreed

with the new proposal (except that the deadline was ex-

tended only to August 1987), revised its SIP accordingly,

and submitted that SIP revision to EPA in December

1985 for approval.

EPA, however, did not act finally on Massachusetts’

revision within four months. Instead, some eight months

after the submittal, EPA gave notice that GM was vio-

lating the unrevised SIP.* One year later, in August 1987,

EPA filed suit against GM alleging that the violation

was continuing. EPA’s original complaint neither refer-

enced the pending revision applicable to the facility nor

the fact that the facility in question had been perma-

nently closed and the new, lower-emitting facility was

in operation. EPA did not act finally on the proposed

revision for an additional year. Final disapproval was

promulgated in September .988 while this case was being

*Such notice is statutorily required before EPA can bring an

enforcement action. 42 U.S.C. § 7413(a)(1) (1982).

6

briefed at the court of appeals. 53 Fed. Reg. 36,011

(Sept. 16, 1988).

EPA had expressly urged that facilities like GM’s

adopt the new technology and had announced a policy of

favorable consideration regarding revisions. 46 Fed. Reg.

51,386 (Oct. 20, 1981). With regard to the GM facility,

however, EPA apparently preferred an enforcement ac-

tion rather than a revision. 51 Fed. Reg. 42,391, 42,392

(Dec. 2, 1986).

SUMMARY OF ARGUMENT

The Clean Air Act is to be implemented by cooperative

federalism—Congress assigned distinct, but complemen-

tary, roles to federal and state governments. Under the

statutory scheme, EPA determines the national goals,

but the States decide how those standards will be

achieved. State implementation plans are subject to only

a limited review by EPA, and their enforcement is pri-

marily a state function. The Act requires that EPA

approve a SIP unless the SIP fails to meet one or more

of eleven criteria specified by Congress, and that it do

so within four months. The Act explicitly imposes on

EPA review of SIP revisions the same substantive limi-

tations, and implicitly imposes the same four-month time

limit on EPA review, as every court of appeals that has

addressed the issue has held. Prempt EPA action on SIP

revisions is essential if the States are to perform their

intended role of primary implementation and enforce-

ment of air quality contro] measures.

By ignoring the statutory four-month time limit, EPA

usurps the States’ role through a “pocket veto” and

avoids the discipline of the judicial review which the

Act expressly provides for approval or disapproval of the

State’s plan. The uncertainty thus created is likely to

delay source—compliance with a SIP revision. When

EPA, without passing finally upon the validity of a SIP

revision, seeks to enforce the unrevised SIP, it substi-

tutes its own judgment for that of the State concerning

7

the appropriate technology and emission limitations—

matters that Congress expressly left for state determina-

tion. In addition, EPA assumes the enforcement role

Congress prescribed for the State.

EPA’s action—or inaction—also violates the Adminis-

trative Procedure Act, by effectively disapproving a SIP

revision without establishing that it has a statutory basis

for that decision and without any explanation.

This Court should clarify the remedies available when

EPA has withheld final approval or disapproval of a

state-submitted SIP revision for more than four months.

We submit that EPA enforcement of 2 SIP under these

circumstances is not barred, but should be conditioned

on a showing that the revision does not meet one or more

of the statutory criteria—the same showing required for

formal EPA disapproval of the revision. When EPA

carries that burden injunctive relief and future penalties

may be appropriate, but the Court should preclude the

imposition of monetary penalties upon a source that has

been complying in good faith with a state-submitted SIP

revision. Our proposal serves to focus all parties’ re-

sources on improvement of the nation’s air quality, by

encouraging source compliance with state plans, -includ-

ing state revisions. The proposed remedy also protects

the States’ implementation and enforcement role under

the Act, and provides an incentive for EPA to act

promptly to approve or disapprove SIP revisions.

ARGUMENT

I. CONGRESS CHOSE A SCHEME OF COOPERATIVE

FEDERALISM TO IMPLEMENT THE CLEAN AIR

ACT.

Congress intended that the Clean Air Act would be

implemented through cooperative federalism—a_ partner-

ship in which the state and federal governments each

have distinct, but complementary, roles. See, e.g., Con-

necticut v. EPA, 696 F.2d 147, 151 (2d Cir. 1982) -

aii

'

8

(d -ribing the Act as a “bold experiment in cooperative

fed: alism”). Congress recognized that States are more

closely attuned than the federal government to local con-

ditions and concerns and that policies with important

local effects should be determined by local agencies.‘

Thus, Congress has regularly turned to state-federal

partnerships to achieve environmental regulatory goals

and has given the States major responsibility for carry-

ing out substantive aspects of the regulatory schemes.*

The congressionally established scheme under the Clean

Air Act requires EPA to determine the national goals

* The whole history of halting federal advances into fields such

as these reflects a firmly rooted tfadition that federal inter-

vention should be a last resort and should be limited to the

minimum consistent with effectuating the statutory ends.

It is tempting to dismiss this tradition impatiently as a

vestige of an antiquated view of state sovereignty. Since the

states cannot handle pollution, perhaps the federal government

should do the job simply and efficiently itself. Professor Lune-

burg sounds a warning note: “[I]t would be unlikely that one

federal agency could easily design plans individually suited to

the needs and conditions of the different areas of the nation,”

and “the probable local resistance to federally designed meas-

ures” should not be underestimated. Not least, the specter of

a huge army of all powerful federal bureaucrats is enough to

give pause; the analogy of federalizing the police suggests

there may still be safety against arbitrary governmental action

in the dispersal of power.

D. Currie, Air Pollution Federal Law & Analysis § 4.34 (1981)

(footnotes omitted).

5 Such statutes include the 1972 and 1977 amendments to the

Clean Water Act, 33 U.S.C. § 1251 et seq. (1982 & Supp. V 1987);

the Safe Drinking Water Act, as amended, 42 U.S.C. § 300f et seq.

(1982 & Supp. V 1987); the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act of 1980 (“Superfund”),

42 U.S.C. § 9601 et seg. (1982 & Supp. V 1987); the Surface Min-

ing Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq.

(1982 & Supp. IV 1986); and the Resource Conservation and Re-

covery Act of 1976, 42 U.S.C. § 6901 et seg. (1982 & Supp. V

1987).

9

and insure that States meet these goals. But while EPA

sets NAAQS, each State, not EPA, determines how the

standards set by EPA will be achieved. EPA “is rele-

gated by the Act to a secondary role in the process of

determining and enforcing the specific, source-by-source

emission limitations which are necessary if the national

standards it has set are to be met.” Train v. Natural

Resources Defense Council, 421 U.S. 60, 79 (1975) (foot-

note omitted).

In enforcement, as well, Congress intended that States

have primary responsibility and gave EPA a limited

role. EPA may assume full responsibility for enforcement

of a SIP only if EPA finds that a State has failed to en-

force its implementation plan and only after it provides

a thirty-day notice to the State. 42 U.S.C. § 7418(a) (2)

(1982). EPA may initiate individual enforcement ac-

tions only after first giving the State thirty days’ ad-

vance notice. 42 U.S.C. § 7413(a) (1) (1982).°

Congress gave the States great flexibility in meeting

their responsibility of assuring air quality within their

borders. “[S]o long as the ultimate effect of a State’s

choice of emission limitations is compliance with the na-

tional standards for ambient air, the State is at liberty

to adopt whatever mix of emission limitations it deems

best suited to its particular situation.” Train, 421 U.S.

at 79. The State’s discretion “includes the continuing au-

thority to revise choices about the mix of emission lim-

itations.” Jd. at 87.

To achieve its intent that the States have primary

authority for air quality within their boundaries, Con-

gress placed both substantive and time limits on EPA’s

review of state implementation plans. EPA can disap-

prove a SIP or SIP revision only if it fails to meet one

or more of the eleven criteria prescribed by Congress in

®* EPA may also delegate to a State the authority to assess and

collect noncompliance penalties when appropriate. 42 U.S.C. § 7420

(a) (1) (B) (1982).

10

Section 110(a)(2)(Ai-i\Ki, 42 U.S.C. § 7410(a) (2)

(Ai-(K) (1982).

If a SIP or a SIP revision meets these criteria, EPA

has no discretion and must approve the state submission

even if EPA would pick a different mix of emission

limitations:

Under § 110(a) (2), the Agency is required to ap-

prove a state plan which provides for the timely at-

tainment and subsequent maintenance of ambient air

standards, and which also satisfies that section’s

other general requirements. The Act gives the

Agency no authority to question the wisdom of a

State’s choices of emission limitations if they are

part of a plan which satisfies the standards of

$110(a)(2)....

Train, 421 U.S. at 79-(emphasis in original).

II. EPA MUST TAKE FINAL ACTION ON A SIP RE-

VISION WITHIN FOUR MONTHS OF ITS SUB-

MITTAL.

To assure clear statements of pollution control require-

ments and to hasten compliance with the state-determined

source-specific limitations, Congress imposed time con-

straints on EPA’s review of SIPs—requiring final action

within four months after a State makes its submission.

42 U.S.C. § 7410(a) (2) (1982). The four-month dead-

line also applies to EPA’s review of state-submitted re-

visions to SIPs, as the court below and every other court

of appeals that has addressed the issue has held.’

7 Pet. App. lla-12a; United States v. Alcan Foil Products Divi-

sion, 889 F.2d 1513, 1518 (6th Cir. 1989); American Cyanamid

Co. v. EPA, 810 F.2d 493, 495 (5th Cir. 1987): Duquesne Light

Co. v. EPA, 698 F.2d 456, 471 (D.C. Cir. 1983); Couneil of Com-

muter Organizations v. Gorsuch, 683 F.2d 648, 651-52 n.2 (2d

Cir. 1982). See also General Motors Corp. v. EPA, 871 F.2d 495,

498 (5th Cir. 1989) ; Council of Commuter Organizations v. Thomas,

799 F.2d 879, 888 (2d Cir. 1986).

11

EPA’s contrary argument, that Section 110(a) (3)

(A)* incorporates by reference only the substantive cri-

teria of Section 110(a) (2), has never been accepted as

the correct reading of congressional intent. The Sixth

Circuit correctly noted that “it seems clear to us that

Congress intended to incorporate the time limit, and felt

it had done so by referring to ‘the requirements of para-

graph (2).’” United States v. Alcan Foil Products Di-

vision, 889 F.2d 1513, 1518 (6th Cir. 1989).

The statute expressly references the Administrator’s

obligation to approve or disapprove revisions “within the

required four month period.” 42 U.S.C. § 7410(g) (1).

EPA argued below that Section 110(g)(1) was irrele-

vant to the true meaning of Sections 110(a) (3) (A) and

110(a)(2) because subsection (g) was enacted in the

1977 Amendments to the Clean Air Act, while subsections

(a)(2) and (a)(3)(A) were enacted in 1970. EPA’s

argument is both legally incorrect and factually specious.

This Court has long held that a statute must be read as

a whole, regardless of the enactment dates of individual

sections. Pennsylvania v. Union Gas Co., 109 S. Ct. 2273,

2278 n.2 (1989) (“We ... read CERCLA and SARA

[amendments to CERCLA] together, and argue that

SARA’s wording must inform our understanding of the

other definitional sections of the statute.”)*; see also

®* Section 110(a) (3) (A) provides that: “The Administrator shall

approve any revision of an implementation plan applicable to an

air quality control region if he determines that it meets the re-

quirements of paragraph (2) and has been adopted by the State

after reasonable notice and public hearings.” 42 U.S.C. § 7410

(a) (3) (A) (1982).

* Justice White’s concurring opinion in Union Gas does not re-

quire a different result in this case. Justice White’s point of de-

parture (see 109 S. Ct. at 2290 n.1) was in a case requiring

stringent review to establish an “unmistakable statement” of con-

gressional intent to abrogate the States’ sovereign immunity. The

issue in this case does not involve the States’ liability, and thus

the statutory interpretation need not meet that higher standard

of review.

12

Clark v. Uebersee Finanz-Korporation, A.G., 332 US.

480, 488 (1947) (“Our task is to give all of it [the

Trading With the Enemy Act and later amendments

thereto]|—-1917 to 1941-—the most harmonious, compre-

hensive meaning possible.” )."°

Indeed, subsection 110(g) is particularly relevant be-

cause, in passing the 1977 Amendments, Congress under-

stood that the changes would require further SIP revi-

sions, which were specifically referenced in the criteria

in Section 110(a)(2).'' Thus, in citing the “required

four month period” in subsection 110(g), Congress was

stating the time limit it imposed on EPA’s review of

those SIP revisions compelled by specific requirements

10 While after-the-fact “legislative history” is not probative as

- to the intent of an earlier Congress, amendments of a statute by

a later Congress are certainly probative of any other section in

the statute. The cases cited by EPA in its briefs below do not

refuse to interpret an act and its amendments together when the

act as amended is the applicable law. See Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 63 n.4 (1987)

(refusing to rely on conflicting legislative history of amendments

passed after the court of appeals had issued its opinion) ; Rain-

water v. United States, 356 U.S. 590, 593 (1958) (refusing to

rely on 1918 amendment to criminal penalties to interpret a

rately codified 1863 civil penalties); Higgins v. Smith, 308 U.S.

473, 479-80 (1940) (refusing to use Revenue Act of 1934 to inter-

pret tax liability under Revenue Act of 1932).

11 See, e.g., 1977 amendments to Section 110(a)(2) mandating

that SIPs meet numerous requirements added by other sections of

the 1977 Amendments: 110(a)(2)(D) (adding references to per-

mits required by Parts C and D, which were added by the 1977

Amendments) ; 110(a)(2)(E) (adding reference to Section 126, also

added in 1977, regarding interstate pollution abatement require-

ments: 110(a)(2)(F) (adding reference to Section 128, also added

in 1977, regarding composition of state boards) ; 110(a) (2) (H)

(requiring SIPs to provide for revision when EPA finds a plan fails

“to otherwise comply with any additional requirements established

under the Clean Air Act Amendments of 1977”); 110(a) (2) (1)

(adding reference to requirements added in 1977 regarding non-

attainment areas); 110(a)(2)(J) and (K) (new subparagraphs re-

quiring that SIPs meet various provisions added by the 1977

Amendments). Pub. L. No. 95-95, § 108, 91 Stat. 686, 693-94 (1977).

Petia

13

added in 1977 and all other revisions. Far from being

a post hoc assertion by a later Congress of an earlier

Congress’s intent, subsection 110(g) represents the then-

current expression of a Congress contemplating plan re-

visions and defining the appropriate procedural and sub-

stantive requirements.”

Congress’s intention that the Clean Air Act be imple-

mented through cooperative federalism—a partnership

between the federal and state governments—reinforces

this interpretation. Only if EPA promptly reviews the

state-submitted SIP revisions can the State perform its

congressionally intended role as the primary implementer

and enforcer of its air quality control measures. Al-

though such expeditious action may be difficult, EPA can-

not be allowed to circumvent Congress’s policies by dis-

regarding the deadline."

1? EPA’s contrary interpretation of the statute is not entitled

to deference. A reviewing court “must give effect to the un-

ambiguously expressed intent of Congress.” Chevron U.S.A., Inc.

v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984).

Even if the Act were considered ambiguous or silent on a par-

ticular issue, a reviewing court should not defer to an agency’s

interpretation that “frustrate[s] the congressional policy under-

lying a statute.” SEC v. Sloan, 436 U.S. 108, 118 (1978). Here,

EPA’s interpretation frustrates the statutory purpose because it

allows £&PA to usurp the role that Congress intended for the

States. Furthermore, as the court below warned, “we think it

dangerous to defer in a situation such as this where the Agency

has a substantial institutional interest in not imposing constraints

on itself.” Pet. App. lla; see also Alcan Foil Products, 889 F.2d

at 1518.

18 There is nothing in the record to support the court of appeals’

assertion that EPA would usually require more than four months

to act finally on a SIP revision.

14

Ill. EPA HAS BREACHED THE LIMITS CONGRESS

PLACED ON ITS AUTHOKITY, THEREBY USURP-

ING THE STATE’S ROLE AND FAILING TO ACT

IN ACCORDANCE WITH LAW.

EPA, by bringing an action to enforce an existing SIP

while holding in limbo a state-approved SIP revision for

more than four months, is attempting to accomplish

through inaction what Congress has forbidden it from

doing directly. EPA’s action thereby usurps the respon-

sibilities Congress intended for the States and is arbi-

trary, capricious, and not in accordance with law.

A. EPA Has Breached The Limits Congress Imposed.

There is no issue that EPA has grossly violated the

four-month statutory deadline imposed by Congress for

EPA consideration of SIP revisions. EPA took almost

three years to take final action on the Massachusetts

revision at issue here (Pet. App. 6a-8a) and even longer

to review the SIP revisions at issue in another enfor ce-

ment case. American Cyanamid Co., 810 F.2d at 497

(no decision after four and one-half years). See also

Alean Foil Products, 889 F.2d at 1516-17 (final action

took two and one-half years)."'

EPA’s prolonged review of SIP revisions also violates

the substantive limits placed on EPA by the Act. When

EPA fails to act for three, four, or more years on a state-

submitted revision, EPA exercises a “pocket veto” dis-

approving the State’s plan. See Bethlehem Steel Corp. v.

EPA, 782 F.2d 645, 650 (7th Cir. 1986); Indiana &

Michigan Electric Co. v. United States EPA, 733 F.2d

489, 492 (7th Cir. 1984). EPA’s effective disapproval

comes without any determination as to whether the re-

vision meets the congressionally mandated criteria or any

evidence that EPA has considered only the factors al-

lowed by Congress.

14 EPA has admitted that it often exceeds even the fourteen-

month administrative schedule it has set for itself. 54 Fed. Reg.

2138, 2139 (Jan. 19, 1989).

15

This case exemplifies the problems created by such a

“pocket veto.” First, EPA’s refusal to address the revi-

sion prevents it from coming into full effect," without

any of the protection and limitations on discretion re-

quired by Congress. Without a final action, EPA’s effec-

tive disapproval is outside the statutory framework and

can neither be disputed by a State or source nor con-

trolled by the courts.

Second, as discussed more fully below, EPA’s inaction,

coupled with its attempt to enforce the existing SIP, ef-

fectively substitutes EPA’s judgment for the State’s deci-

sion regarding the appropriate technology, emission lim-

itations, and enforcement avenues to be applied to a par-

ticular source—a decision Congress expressly left to the

State.

Third, by refusing to act on the revision while seeking

enforcement of its preferred position, EPA has harmed

attainment and maintenance of air quality standards by

undercutting any incentive for sources to accept and com-

ply promptly with state revisions. During the period in

which EPA holds the State’s revision in limbo, industry

does not know which emission limitation ultimately will

apply. Such uncertainty over a period of several years

is likely to delay compliance or at least to delay invest-

ment in expensive air pollution control equipment. Thus,

despite the Act’s preference for revisions as a means to

upgrade technology and limitations, EPA’s ongoing fail-

ure to act makes such revisions either a nullity or, as

here, a gamble for both the State and the source.

B. EPA Is Usurping The State’s Role.

In addition to violating its assigned role under the Act,

EPA’s “pocket veto” of state-submitted revisions destroys

the cooperative federalism by which Congress intended

15 Until the revision has been approved by EPA, Section 110(d)

of the Act defines the “applicable implementation plan” as the

unrevised SIP.

16

the Act to be implemented. By its delayed action, EPA

rather than the State determines the applicable mix of

emission limitations and prevents the State from propos-

ing a better solution.

EPA’s inaction also usurps the State’s enforcement

role. By establishing a revision, the State has made both

a policy decision as to the proper emission limitations and

an enforcement decision regarding the source. EPA’s

failure to act expeditiously leaves the source bound by a

state regulatory requirement different from the federal

requirement and in many instances unable to comply

with both. It is precisely this regulatory limbo that Con-

gress sought to avoid by requiring expeditious action.

EPA’s infringement on the State’s role is even more

egregious when EPA couples the delayed review of a

state-approved revision with an attempt to enforce the

existing SIP. In that situation, EPA not only prevents

the State from carrying out its duties under the Act,

but EPA arrogates those duties unto itself. By attempt-

ing to enforce the existing SIP, EPA supplants the revi-

sion with its own views as to the appropriate emission

limitations and enforcement choices. As this Court has

recognized, Congress decided that the States would deter-

mine source-by-source emission limitations and that EPA

could take over that role only upon finding that a State

was not complying with the requirements of the Act.

42 U.S.C. § 7410(c) (1) (1982).

C. EPA Has Acted Arbitrarily, Capriciously, And Not

In Accordance With Law.

EPA’s “pocket veto” of a state-submitted SIP revision

also violates the Administrative Procedure Act. Because

EPA’s lengthy review of a state-approved revision cou-

pled with enforcement of the existing SIP is essentially

a disapproval of the State’s revision during the time the

revision is under review, EPA’s actions must be subject

to the same limits as an outright disapproval of the revi-

17

sion. To hold otherwise would circumvent Congress’s

intent by placing form above substance. Thus, EPA’s dis-

approval of SIPs and SIP revisions is subject to the lim-

itation under the APA that EPA’s action not be “arbi-

trary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706 (1988); see,

e.g., Friends of the Earth v. EPA, 499 F.2d 1118, 1123

(2d Cir. 1974): D. Currie, Air Pollution Federal Law

& Analysis § 9.01 (1981).

This Court has recognized that Congress has explicitly

set forth both the factors EPA is required to consider

and the bounds beyond which EPA cannot stray in re-

viewing a SIP revision. Train, 421 U.S. at 80. Clearly,

EPA would be acting arbitrarily, capriciously, and not in

accordance with law if it disapproved a SIP revision for

a reason other than those listed in Section i10(a) (2) (A)-

(K) of the Act. EPA also is required to explain the ra-

tionale and factual basis for its decision. See, e.g., Bowen

v. American Hospital Ass’n, 476 U.S. 610, 627 (1986)

(plurality opinion).

If EPA were free to enforce an existing SIP while

a SIP revision has been awaiting EPA approval for more

than four months, EPA would by its inaction acquire

the authority to disapprove a SIP revision for any rea-

son (whether allowed by Congress or not) and without

an explanation to anyone. Direct action of this sort by

EPA would violate both the Clean Air Act and the APA.

Given that Congress has limited EPA’s direct action,

EPA cannot be allowed to exercise unfettered discretion

when it has failed to act as required by Congress.”

16 The issue here, of course, is not whether the agency generally

has discretion to enforce, nor whether enforcement decisions van

be reviewed. Even though an agency’s decision not to prosecute

or enforce is generally unreviewable as action committed to agency

discretion, an enforcement action “at least can be reviewe to

determine whether the agency exceeded its statutory powe: :.”

Heckler v. Chaney, 470 U.S. 821, 832 (1985). The issue presented

here is whether the agency can effectively broaden its power or

18

IV. THIS COURT SHOULD INTERPET THE ACT AS

CONTEMPLATING A REMEDY THAT REQUIRES

EPA TO ACT WITHIN STATUTORY LIMITS.

In interpreting the Act to determine the remedy when

EPA has violated the statutory scheme, this Court must

give full effect to Congress's intentions (1) that progress

be made toward achieving and maintaining national air

quality standards; (2) that the State play the primary

role in implementing the Act; and (3) that EPA’s dis-

cretion be defined by congressionally prescribed limita-

tions. Neither the parties nor the courts of appeals have

suggested a remedy for EPA’s breach of the four-month

deadline that adequately meets these goals. An appro-

priate remedy must give EPA an incentive to act within

the statutory deadline and must also prevent EPA from

acting in excess of its statutory authority. We believe

that these goals can best be met through emphasizing in-

ijunctive relief to bring a source into compliance with the

appropriate SIP and by limiting monetary penalties when

a source has complied in good faith with a state-approved

SIP revision.

We submit that the proper remedy is not to bar EPA

enforcement, but to condition it on a demonstration that

EPA’s discretion has been appropriately confined."

discretion beyond that which Congress granted and then assert

that its usurpation of power is unreviewable.

17 A complete bar to enforcement proceedings is contrary to

Congress’s carefully crafted scheme. Section 110(d) of the Act

provides that the existing SIP is the “applicable implementation

plan” for enforcement purposes, and Congress granted explicit

(although conditioned) authority to EPA to enforce the “applicable

implementation plan.” Both EPA and the States have authority

to enforce the Act through injunctive and penalty provisions, and

citizen suits to prevent or stop violations are also expressly per-

mitted, 42 U.S.C. §$ 7604(a). It would be anomalous to create a

situation in which States could enforce, private citizens could en-

force, but the expert federal agency with explicit statutory au-

thority could not.

19

Where a State has submitted a relevant SIP revision,

any EPA enforcement should explicitly take into account

the revision and the statutory criteria limiting EPA’s

discretion. We propose simply that EPA’s authority be

limited to enforcing the appropriate SIP—the SIP as

revised (if the revision meets the criteria under the Act)

or the SIP as unrevised (if the revision does not meet

the Act’s requirements)—and that the burden of demon-

strating that the revision does not meet the statutory

tests be laid expressly on EPA. EPA should not be al-

lowed to enforce the unrevised SIP unless it affirmatively

and specifically alleges, and establishes before the en-

forcing court, a basis for disapproving the state-

submitted SIP revision."

Where a state-approved revision meets the Act’s cri-

teria, EPA’s only legitimate statutory role is to assure

enforcement of and compliance with the revised SIP on

an appropriate and reasonable schedule. A revision such

as in this case, which established a schedule of compliance

and with which GM apparently complied, should not be

18The discussion in text concerns only enforcement actions

brought after the four-month review period allowed to EPA for

action on state-submitted SIP revisions. Even within the four-

month period, however, the pendency of a SIP revision should be

considered in any enforcement proceeding. Thus, even though

the unrevised SIP is the “applicable” SIP under Section 110(d)

of the Act, EPA cannot act arbitrarily. Compelled compliance

with the existing SIP when EPA has no discretion but to approve

the submitted revision would be arbitrary and capricious because

it would enforce a provision that will soon expire, i.e., once EPA

approves the revision or the four-month period runs.

For the same reasons, we believe that the imposition of penalties

under Section 113 of the Act during the four-month review period

is also subject to limits. During the four-month review period,

any penalties must be subject to the proper discretion of the court,

with careful review to prevent the arbitrary imposition of penal-

ties. (EPA cannot impose penalties administratively on the source

under Section 120 while the SIP revision is under review. Du-

quesne Light, 698 F.2d at 471.)

20

effectively gutted by EPA’s inaction unless EPA can

show that the revision violates the Act’s criteria.”

We believe that the overall statutory scheme requires

that EPA’s enforcement discretion be confined by express

consideration and explanation of the relation between

EPA’s proposed enforcement and the suomitted revision.

Where the appropriate showing is made, EPA could ob-

tain injunctive or other relief to establish a schedule for

compliance with the unrevised SIP.”

The Court’s remedy for EPA’s undue delay should also

generally preclude Section 113 monetary penalties on

sources complying in good faith with SIP revisions to

assure that the possibility that penalties will be imposed

does not inhibit source compliance with the limitations

and deadlines that the State has determined to be appro-

priate.” In our view, the source’s good faith compliance

19 We note that EPA’s failure to act on a revision also violates

the congressional intent that States be given the opportunity to

correct the flaws in any noncomplying revision, 42 USC. § 7410

(a)(3)(B) (1982). EPA’s one-two combination of failing to act on

the revision while enforcing the unrevised SIP withholds from the

State its statutorily provided opportunity to correct the submitted

revision.

2 Such relief is no longer at issue in the case before the Court

because EPA dropped its request for injunctive relief once it

learned that GM’s allegedly noncomplying facility had been closed

‘permanently prior to initiation of this action. Compare Complaint,

J.A. 12, § (a), with Amended Complaint, J.A. 117.

21 The limitation of monetary penalties does not run afoul of

Brock v. Pierce County, 476 U.S. 253 (1986). EPA still would have

enforcement powers, so our proposed remedy does not divest the

[government] of jurisdiction to act after that time. 476 U.S. at

266. Furthermore, unlike the limitation proposed in Brock, where

the public arguably would have lost money to which it would have

been entitled if the government had acted promptly, the poupenee

limit on penalties in this case does not keep from the federal gov-

21

with the relevant state-determined limitations should af-

fect not only the amount but also the availability of pen-

alties. The threat of penalties for the period of EPA’s

delay requires a source either to ignore the State’s deter-

mination of limitations and compliance deadlines or to

gamble on EPA’s approval. Where the four-month review

period has passed without EPA disapproval of the SIP

revision, a source should be expected to comply with the

state-approved revision and should not be penalized for

doing so. If the revision meets the statutory criteria,

source compliance is within the congressional intent; and

EPA should not be able to seek penalties for conduct

Congress sought to foster.

Should EPA demonstrate that the revision does not

meet statutory criteria, the court should set an appro-

priate schedule for compliance with the existing SIP.

Penalties under Section 113 should then be levied for vio-

lation of that schedule, but not for the period of the

source’s good faith compliance with the state-approved

revision.” This interpretation balances the congressional

intent to let States determine the source-specific emis-

sion limitations and enforcement measures with the avail-

ability of penalties_for those who do not comply with the

SIP as finally determined.

The Act establishes limitations on EPA’s enforcement.

See 42 U.S.C. § 7413(b) (1982). Clear guidelines are

ernment money to which it would be entitled if EPA had acted

promptly. Rather, the enforcement conditions simply focus the

attention of all involved parties on the proper statutory criteria

and timetables.

*2 Of course, where, at the time of enforcement, the source is in

compliance with neither the revision nor the unrevised SIP, penal-

ties are appropriate. Moreover, where EPA can show that the

revision is a mere contrivance or sham with no reasonable air pollu-

tion control purpose, the imposition of penalties back to the notice

date may be appropriate. But neither of these exceptions is pre-

sented by this case.

22

essential here, to assure that all parties, including sources

subject to SIP revisions, understand and respond to the

primacy Congress gave state determinations of source-

specific requirements.”

By focusing ail parties’ resources on compliance with

a state-approved plan or revisions that meet statutory

criteria, our proposed remedy protects the public health

and welfare and furthers Congress’s goal of improving

the nation’s air quality. Injunctive relief is available to

assure compliance with the provisions necessary to

achieve the national air quality standards. The limitation

on monetary penalties gives industry incentive to comply

with State limitations and schedules but allows EPA to

seek monetary penalties against egregious violators that

are failing to comply with any SIP provision.

Our proposed remedy also protects the State’s role and

gives EPA incentive to act promptly in conformity with

its statutory duty.** The requirement that EPA show

23 The additional remedy proposed by the court below of allowing

courts to consider EPA’s delay as a relevant factor in assessing

monetary penalties does not significantly increase industry’s incen-

tive to comply quickly because it fails to decrease the uncertainty

as to which SIP provisions will govern.

2 For these reasons, our remedy is superior to a mandamus ac-

tion under Section 304 of the Act, 42 U.S.C. § 7604 (1982). At most,

a mandamus action addresses only half of the problem—EPA’s fail-

ure to act within the statutory deadline. Even then, EPA’s record

for complying with court-ordered deadlines is not promising. See,

e.g., Sierra Club v. Ruckelshaus, 602 F. Supp. 892 (N.D. Cal. 1984)

(holding EPA in contempt for failing to meet a court-ordered dead-

line after EPA had already failed to meet the statutory deadline) ;

see also Sierra Club v. EPA, 719 F.2d 436, 469-70 (D.C. Cir. 1983)

(detailing EPA’s failure to promulgate statutorily required regula-

tions in six years where the statutory deadline was six months), cert.

denied, 468 U.S. 1204 (1984). There is little reason to think that

a court-imposed four-month deadline would make EPA act more

quickly than a statutorily imposed four-month deadline. Requiring

a State or source to bring a mandamus action is also unfair be-

cause it imposes additional costs on them merely to seek perform-

ee ee

that it has justification to disapprove the SIP revi-

sion in order to enforce the existing SIP imposes no

greater limitation than that expressly provided by the

Clean Air Act and the APA.” The State’s policy choices

are protected because EPA is allowed to override them

only if it can show that it has a statutory basis to do so.”

The limitation on monetary penalties if a source is in com-

pliance with a state-approved SIP revision further pro-

tects the State’s role and gives EPA an incentive to act

promptly if it believes that the revision should be dis-

approved.”

ance of EPA’s required duties. Congress expected all parties to

focus on compliance with the chosen state policies, rather than

battling each other over how soon EPA must act in considering

those policies.

Moreover, a mandamus action will only compel a decision, not

determine the proper choice. It thus fails to provide an incentive

for industry to comply quickly with the State’s chosen emission

limitations.

*° There can be no reasonable argument that requiring EPA to

make a prima facie showing of its basis to disapprove the revision

contravenes the exclusive jurisdiction of the courts of appeals to

review EPA’s final approval or disapproval of SIP revisions, 42

U.S.C. § 7607(b) (1) (1982). That exclusive jurisdiction applies only

where a final administrative action has occurred. Where EPA has

precluded such review by its delay, and then brings an enforce-

ment action, the Act plainly contemplates review of EPA’s actions

in the enforcement case. See 42 U.S.C. § 7607(b)(2) (1982).

*6 A SIP revision is presumptively valid because States are pre-

sumed to act in good faith. The presumptive validity of state-

submitted revisions is also borne out by the limitations Congress

placed on EPA's ability to disapprove revisions. Congress, while

recognizing that the States’ economic interests may give a State

reason to consider the source’s concerns, expressly provided for

state authority, and EPA should not benefit from an assumption

that a State would submit an inappropriate revision.

27 The prohibition on monetary penalties if a source is complying

with the state-approved revision also addresges a serious potential

issue regarding EPA’s credibility. Where, as here, EPA’s dis-

approval of the state-approved revision has no effect except perhaps

24

This enforcement scheme also addresses EPA’s asserted

fear that the States will flood EPA with disingenuous

requests. EPA has made no showing that Massachusetts

or other States have submitted disingenuous requests for

revisions, whether by industry cooperation or otherwise.

In any event, if a revision clearly disregarded the criteria

established by EPA and Congress, then EPA should be

able to dispose of the revision promptly; and prompt ac-

tion by EPA would control any such practice by the

States. Finally, if the proposed revision were not made

in good faith, EPA could enforce the existing SIP because

the revision would fail to meet the criteria for approval.

Thus, our proposed remedy gives full and balanced

effect to the entire congressional scheme, leaving EPA

with neither reduced nor enhanced authority or discre-

tion, and permits the States to fulfill their role within our

federal system and the statutory limitations.

on EPA’s collection of monetary penalties, there could be an ap-

pearance that EPA is acting improperly.

——

25

CONCLUSION

For the reasons stated above, the judgment below

should be affirmed as to the holding that EPA is required

to act on revisions to state implementation plans within

four months and reversed as to the appropriate remedy

when EPA brings an enforcement action on the unrevised

SIP agg a revision has been pending for more than four

mont

Respectfully submitted,

CHARLES A. PATRIZIA BENNA RUTH SOLOMON

LORIE J. SCHMIDT-PRAUL Chief Counsel

PAUL, PASTINGS, JANOFSKY JOYCE HOLMES BENJAMIN

& WALKER BEATE BLOCH

Twelfth Floor STATE AND LOCAL LEGAL

1050 Connecticut Ave., N.W. CENTER

Washington, D.C. 20036 444 North Capitol Street, N.W.

(202) 223-9000 Suite 349

Of Counsel Washington, D.C. 20001

(202) 638-1445

Counsel of Record for the

Amici Curiae

January 18, 1990