# Petition for Writ of Certiorari — Ford Motor Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0295%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 822 ## Text Supreme Cot, U.S. FILED | MAY 29 1987 No. 86-1892 ‘ JOSEPH F. SPANIOL, JR. Iu the Supreme Court of the Hnited States OCTOBER TERM, 1986 FORD MOTOR COMPANY, PETITIONER Vv. UNITED STATES OF AMERICA, RESPONDENT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PAUL M. BATOR KATHRYN A. OBERLY STEPHEN M. SHAPIRO Counsel of Record Mayer, Brown & Platt Mayer, Brown & Platt 190 South LaSalle Street 2000 Pennsylvania Ave., N.W. Chicago, Illinois 60603 Washington, D.C. 20006 (312) 782-0600 (202) 463-2000 DOUGLAS E. CUTLER NORMAN W. BERNSTEIN Ford Motor Company 401 Parklane Towers West One Parklane Boulevard Dearborn, Michigan 48126 (313) 322-4891 — eee WILSON - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 QUESTION PRESENTED The State of Michigan promulgated an emission lim- itation as part of a State Implementation Plan (SIP) under the Clean Air Act. That limitation was approved by the Environmental Protection Agency, but a Michigan state court subsequently entered a final judgment holding that the limitation was fundamentally flawed from the outset, and therefore void ab initio, because it was prom- ulgated in the mistaken belief that it was achievable through the use of “reasonably available control tech- nology.” Against this background, the question presented is: Whether, consistent with the Clean Air Act and the Due Process Clause, the United States may maintain an enforcement action in federal court under the Clean Air Act for alleged noncompliance with an emission limita- tion invalidated by a court of the state that adopted the limitation, notwithstanding the fact that challenges to the technological and economic feasibility of a SIP are within the exclusive competence of the state judicial system. (1) II RULE 28.1 STATEMENT A listing of petitioner’s subsidiaries (other than wholly owned subsidiaries) and affiliates is set forth at App. H, infra, 72a-74a. TABLE OF CONTENTS Page I cdibannecinaenesibnmeneasaanas 1 0, samecebnnseneaumanbhaddéntioenans 1 ED . cnnnonntanuntesemmeesombionesastecesnen 1 ee sncsonepbanahanionaeniahemavesis 2 1. The Promulgation Of State Implementation ee celaienielnhenaniseudadienekaadnere 2 2. State Administrative And Judicia! Primacy Over Claims Of Technological And Economic Infeasi- ce mnhachanesesercnngtecnwonns 3 3. Revised SIPs Required For ‘‘Nonattainment” Areas And The “RACT” Standard ...................... 4 4. The Consequences For Enforcement Actions Of State Primacy Over Claims Of Economic And Technological Infeasibility ..................02..2...2222...... yee ee Ge UD CD nnn oasis cnn a. The Allegations In The Government’s Ea Ne A 7 b. Michigan’s Review Of The Feasibility Of Compliance With Rule 610 ................--.......... 7 ec. Ford’s State Court Action .............................. a cc snnncenssnnsaceeaenssacnsencs 12 REASONS FOR GRANTING THE PETITION ........... 13 A. The Federal Government May Not Maintain An Enforcemert Action Under The Clean Air Act Based On Provisions Of A State Implementation Plan That A State Court Has Determined To Be Invalid As Of Their Inception -............................. 15 (III) IV TABLE OF CONTENTS—Continued Page B. The Sixth Circuit’s Decision Violates Well- Settled Principles Of Federalism And Comity.... 23 C. The Sixth Circuit’s Decision Produces Gross In- equities That Cannot Have Been Intended By I icc i2k lca cena htc cpeniteen apenaridandamabanmnion 24 D. The Sixth Circuit’s Decision, By Refusing To Give Any Meaningful Effect To The State Court’s Judgment, Denies Ford It: Right To NE Be EN siiecinbcadactcnsninaestvsnatincinstennntiineaiiseincameiods 26 SII skcerecpctsticnenuniniisicesmissleninneivosju an tobcphnnesuislencticeicibhes 28 IE TF iccsesctpcinsatidencorajnaaccshakco nin cnomcniebaAdinatinabaciancsie la IN IP ses erste horses irasilenbiceaivinns Kade ninneoncomeneensnuesistbcconccelle 10a II Sie a cnnserknscncenoemrancceeontiadeenduininaensiabipemabiad 14a I OP hp eiecibscscen- en csticne sual necnaanabiinndeemonagabinapniecost 16a II TE se ccce renter tcc sedi conoaasenauioeaseadasniauaenadona 18a SN FE asec cansscdapsshoieactnincaa-coanasattconacapanevelaantatioasadin 20a DUN a dees anamenieaaiee 63a REI TE hectic nga meaeicetin anekeates 72a Vv TABLE OF AUTHORITIES Cases: Page American Cyanamid Co. v. EPA, 810 F.2d 493 (5th Ses HITE. - sin aieiciesdasibeiencadiblainioliccoadaitiastalsaniientimmisaniiaesaiaia 25 Appalachian Power Co. V. EPA, 579 F.2d 846 (4th I ek tall 16 Armstrong v. Manzo, 380 U.S. 545 (1965) -............ 26 Bethlehem Steel Corp. v. EPA, 782 F.2d 645 (7th eR Re re eee SEN Se ee 4 Boddie v. Connecticut, 401 U.S. 371 (1971) ............ 26 Brock v. Roadway Express, Inc., 55 U.S.L.W. 4530 CRE, TI. SI stencssilnnssncottenripiadanistabatitigpaailsaadaiiiiniabinae 26 Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 EE. sadncsanccricnshnanciastedlecdmepsaceieedsnhihighaemaienamssloa aaimeaiiidss 4, 28 Connecticut v. EPA, 696 F.2d 147 (2d Cir. 1982) .. 2 Friends of the Earth v. Potomac Electric Power Co., 419 F. Supp. 528 (D.D.C. 1976) ..................... 6 Illinois v. Celotex Corp., 516 F. Supp. 716 (C.D. BE PIED ccacsaiciesereccaneinenoistintonnciaiadaliaaaunesadcmiiaaas ts 18 Indiana & Michigan Electric Co. v. EPA, 509 F.2d ee re a I eda catered anteatcianiibiintns 16 Juidice Vv. Vail, 480 U.S. 327 (1977) .....................---- 23 Kremer Vv. Chemical Construction Corp., 456 U.S. ye ¢ Rare nenecnape es ae a LEONE TER eae mae rea 24 Little v. Streater, 452 U.S. 1 (1981) ...........-202220...... 26 Mathews Vv. Eldridge, 424 U.S. 319 (1976) -............. 26, 28 Michigan V. Thomas, 805 F.2d 176 (6th Cir. 1986) .. 22 National Great Lakes Steel Corp. v. Gorsuch, 700 a RR RC eine ene ee 5 New Mexico Environmental Improvement Division v. Thomas, 789 F.2d 825 (10th Cir. 1986) _......... 22, 23 Ohio Environmental Council v. EPA, 593 F.2d 24 GEE SE SINE picotictanasisssnchancdanisasatabienbabucacadsanachlantioos 16 Pennzoil Co. v. Texaco, Inc., 107 S. Ct. 1519 IIE cs ccscsicohekaccnspcoecsetcncanapboesdmaneerceaaianumeedacsin otetaaneas ahaa ciate 23 Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145 (7th Cir. 1983) ............................... passim Train Vv. NRDC, 421 U.S. 60 (1975) -........ ieesiagecahel 15, 19 Trainor V. Hernandez, 431 U.S. 434 (1977) ............. 23 Union Electric Co. v. EPA, 427 U.S. 246 (1976) ......passim VI TABLE OF AUTHORITIES—Continued United States v. Mendoza-Lopez, No. 86-2067 (May BE, Se ccceestchsnschvicivicbintansetidiemsbinammpeeiatabennniees United States v. Mitchell, 445 U.S. 535 (1980) ....... United States v. National Steel Corp., 767 F.2d ke Ft | een United States v. Wheeling-Pittsburgh Steel Corp., 642 F. Supp. 468 (W.D. Pa. 1986) ........................ Western Oil & Gas Ass’n V. EPA, 633 F.2d 803 (9th GRR, SI sss rccdheketeadarstanshtnedabcetenedits cadets accadalens Younger V. Harris, 401 U.S. 37 (1971) ................... Constitution, statutes and regulations: U.S. Const., Amend. V (Due Process Clause) ........ Anti-Injunction Act, 28 U.S.C. § 2283 .................... Clean Air Act of 1970, 42 U.S.C. § 7401 et seq.: ge ER, | Ree aon ge ee i. eee ee Tis Or CE ee iisienidiscanicancinmnaretinnntaperentiiies a CG B Ue GED einsctcercccscnssiascetiernncnssoctons GB UBS. BT CD CBD nncnncncanicscewcnneseneensensnscomse ee i eicisitciniaricicnieiinnaaannians I CE. Fe Ci ocean csnenesccescescticcinsesiares Te Rise BH Cee GD CD weneccnnsciceccnscecessessessnnne Be Tle Oe ED nceinticeencenececsientsorsnistnnnnuiemmnnnaen EE SE Giscintsnsnsnincnninshaaianeninaciinniiaeintes ee CUD aciinasvaicessnsniticantciannmemeneiibtiionn Bg | ce en ee ae SD COD crncenensersntsnenrecesecnerememneenns RC enn Ge Us © TI CD enc icccccesepnsenesensesnemncennanns eis ie ID EHP PP PW WD W DO wo Wd dP pAIp vil TABLE OF AUTHORITIES—Continued Miscellaneous: Page Bleicher, Economic and Technical Feasibility in Clean Air Act Enforcement Against Stationary Sources, 89 Harv. L. Rev. 316 (1975) -................ 6 U.S. Attorneys’ Manual! 4-5.700 (3/84) -................. 20 In the Supreme Court of the United States OCTOBER TERM, 1986 No. ForRD MOTOR COMPANY, PETITIONER V. UNITED STATES OF AMERICA, RESPONDENT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Ford Motor Company respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A, infra, la-9a) is reported at 814 F.2d 1099. The oral ruling of the district court (App. B, infra, 10a-13a) is unre- ported. JURISDICTION The judgment of the court of appeals (App. E, infra, 18a-19a) was entered on March 27, 1987. The jurisdic- tion of this Covrt is invoked under 28 U.S.C. § 1254(1). STATUTE INVOLVED Relevant provisions of the Clean Air Act, 42 U.S.C. § 7401 et seq., are reprinted at App. G, infra, 63a-71a. (1) 2 STATEMENT The court of appeals has held that the Environmental Protection Agency may maintain an enforcement action in federal court under Section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b), for alleged violations of a provision of a State Implementation Plan (SIP), even though a court of the state that adopted the provision entered a final judgment holding the provision void ab initio. The principal issue presented by this case is whether a federal administrative agency is free simply to ignore the final judgment of a state court on a ques- tion committed to the exclusive competence of the state judicial system. Before turning to the facts of this case, we briefly describe the statutory framework applicable to this dispute. 1. The Promulgation Of State Implementation Plans. The Clean Air Act has been aptly described as “a bold experiment in cooperative federalism.” Connecticut Vv. EPA, 696 F.2d 147, 151 (2d Cir. 1982). Under the federal-state partnership created by the Act, the Admin- istrator of EPA promulgates National Ambient Air Quality Standards (NAAQSs) for a variety of pollut- ants. Section 109, 42 U.S.C. § 7409.1. Although the NAAQSs are established by EPA, Congress vested each state with the “primary responsibility for assuring air quality within the entire geographic area comprising such State.” Section 107(a), 42 U.S.C. § 7407(a). Thus, Section 110 of the 1970 Act, 42 U.S.C. § 7410, required each state to adopt and submit to the Administrator an implementation plan providing for the attainment, main- tenance, and enforcement of the NAAQSs. If the Ad- ministrator determines that the plan meets the require- 1The Act directed the Administrator to promulgate two levels of NAAQSs. National “primary” standards are air quality standards that, in the Administrator’s judgment, are “requisite to protect the public health,” and national “secondary” standards are those “requi- site to protect the public welfare.” Section 109(b) (i) and (2), 42 U.S.C. § 7409(b) (1) and (2). 3 ments of Section 110(a) (2) (A)-(K), 42 U.S.C. § 7410 (a) (2) (A)-(K), he is required to approve it. Once a state-promulgated SIP has been approved by EPA, it may be enforced by either the federal or state govern- ments. 42 U.S.C. §§ 7410(a) (2) (D), 7413. If a state fails to adopt a SIP that meets the requirements of the Act, the Administrator is expressly authorized to prom- ulgate his own implementation plan for that state. Sec- tion 110(c), 42 U.S.C. § 7410(c). 2. State Administrative And Judicial Primacy Over Claims Of Technological And Economic Infeasibility. Shortly after passage of the 1970 Act, the courts of appeals divided over the issue whether the Administrator could consider claims of economic or technological in- feasibility in deciding whether to approve a state- promulgated SIP. This Court resolved the conflict in Union Electric Co. v. EPA, 427 U.S. 246 (1976), holding that the Administrator may not take such concerns into account. The Court determined that Section 110(a) (2) of the Act, 42 U.S.C. § 7410(a) (2), limits the Ad- ministrator’s role to ensuring that state plans comply with the minimum federal standards established by the Act; it does not permit him to second-guess a state’s decision to impose more stringent requirements, even if those requirements are so stringent that it is not feasible to comply with them. 427 U.S. at 261-265. Because the Administrator may not consider claims of technological or economic infeasibility, the Court further held that federal courts of appeals reviewing the Admin- istrator’s approval of a state plan under Section 307 (b) (1) of the Act, 42 U.S.C. § 7607(b) (1), likewise may not consider such claims. Union Electric Cc., 427 U.S. at 266-267. Instead, the Court suggested that “(plerhaps the most important forum for considera- tion of claims of economic and technological infeasibility is before the state agency formulating the implementa- tion plan.” Jd. at 266. The Court also observed that ——— 4 a party dissatisfied with the state agency’s resolution of such issues “may be able to take its claims of economic or technological infeasibility to the state courts.” Id. at 266-267. 3. Revised SIPs Required For “Nonattainment” Areas And The “RACT” Standard. The 1970 Act re- quired SIPs to provide for the attainment of the primary NAAQSs by 1975. In many areas of the country, how- ever, that statutory deadline was not met. See generally Chevron, U.S.A., Inc. Vv. NRDC, 467 U.S. 837, 847 (1984). In the 1977 amendments to the Act, those areas were designated as “nonattainment” areas. 42 U.S.C. §§ 7407(d), 7501(2). For such areas, the 1977 legis- lation generally extended the deadline for attainment of the primary NAAQSs to December 31, 1982, and re- quired each state to submit by July 1, 1979, a revised SIP for EPA’s approval. 42 U.S.C. § 7502(a) (1) and (b). With respect to existing major stationary sources of air pollution not undergoing modification, the revised SIPs required by the 1977 amendments had to provide for such reductions in emissions “as may be obtained through the adoption, at a minimum, of reasonably available control technology.” Section 172(b)(3), 42 U.S.C. § 7502(b) (3). The Clean Air Act nowhere de- fines “reasonably available control technology,” which has come to be known by “the inevitable if unlovely acro- nym” of “RACT.” Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 650 (7th Cir. 1986). Even in the absence of a statutory definition, however, it is clear that economic and technological feasibility are the cornerstones of “RACT. Thus, EPA has defined RACT as “[t]he lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and eco- nomic feasibility.” 45 Fed. Reg. 59331 (1980) (emphasis added). See also 40 C.F.R. § 51.1(0). T_T — LULU | : 5 The combined effect of the Court’s decision in Union Electric and the minimum requirement of RACT for existing sources in nonattainment areas is that the Ad- ministrator may—indeed, must—consider_ technological and economic factors to the extent necessary to determine that a state’s submission requires the use of RACT, but that he may not disapprove a state’s submission based on a determination that it requires more than RACT, 2.e., that it is technologically and economically infeasible. That is because, as Union Electric clearly held, a deci- sion to impose infeasible requirements is left to the sole discretion of the states. 427 U.S. at 265.2 By the same token, a federal court reviewing the Administrator’s de- cision to approve a SIP submitted under the 1977 amend- ments may not consider arguments that the requirements of a state plan are technologically and economically in- feasible and, therefore, more stringent than RACT. See, e.g., National Great Lakes Steel Corp. v. Gorsuch, 700 F.2d 314, 324 (6th Cir. 1983). 4. The Consequences For Enforcement Actions Of State Primacy Over Claims Of Economic And Technologi- cal Infeasibility. This Court’s decision in Union Electric did not elaborate on its statement that state agencies and state courts are the appropriate forums in which to raise claims of economic and technological infeasibility. In particular, the Court left open the question whether such claims may also be raised as a defense to a federal enforcement action. Union Electric, 427 U.S. at 268 n.18. In the wake of Union Electric, however, the only two courts that have squarely considered the question have held that such claims may not be raised as a defense 2 The “one-way” consideration that the Administrator must give to RACT is not a significant change from his role under the 1970 Act. There, too, economic and technological factors were relevant in determining whether the Act’s minimum requirements were met, but infeasibility was not a legitimate basis upon which to disap- prove a state plan. See Union Electric, 427 U.S. at 264-265 & n.14. 6 to an enforcement action. United States v. Wheeling- Pittsburgh Steel Corp., 642 F. Supp. 468, 473 (W.D. Pa. 1986); Friends of the Earth v. Potomac Electric Power Co., 419 F. Supp. 528, 535 (D.D.C. 1976). See also Bleicher, Economic and Technical Feasibility in Clean Air Act Enforcement Against Stationary Sources, 89 Harv. L. Rev. 316, 352-353 (1975). Moreover, EPA has consistently taken the position that claims of tech- nological and economic infeasibility are not a defense to an enforcement action. Thus, as a practical matter, the state courts are the only judicial forum in which such claims may be raised. The question presented in this case is yet another cru- cial issue left unresolved by Union Electric—what effect does a state court’s judgment that an EPA-approved SIP is invalid have on EPA’s ability to maintain a federal enforcement action? In other words, if a company ac- cepts this Court’s invitation in Union Electric, challenges a SIP in state court, and obtains a final state court judg- ment holding that the SIP was invalid ab initio, may EPA ignore that ruling and maintain an enforcement action in federal court seeking monetary penalties and other relief for “violations” of the same invalid SIP? Two courts of appeals have confronted this important question. In Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1148 (1983), the Seventh Circuit expressly held that “a successful state court challenge * * * render[s] an implementation plan provision un- enforceable in both federal and state court.” As de- scribed below (see pages 12-138, infra), the Sixth Cir- cuit reached precisely the opposite result in this case. 5. The Facts Of This Case. Ford owns and operates a plant in Mount Clemens, Michigan, for the manufacture and coating of vinyl products. At the time this action was filed, the Mount Clemens plant produced approxi- mately 85% of the requirements of Ford’s North Ameri- can automotive operations for vinyl-coated materials, in- 7 cluding automobile roofs, upholstery, and other interior components. C.A. App. 78. a. The Allegations In The Government’s Complaint. On September 26, 1984, the United States, on behalf of EPA, commenced this enforcement action against Ford under Section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b). The government alleged that eight vinyl “coating lines” at the Mount Clemens plant were emit- ting volatile organic compounds (VOCs) in excess of the rate permitted by R. 336.1610 of the Michigan Administrative Code, Air Pollution Control Commission, General Rules (Rule 610). C.A. App. 11-16.* Because EPA had approved Rule 610 as part of Michigan’s re- vised SIP in May 1980 (40 C.F.R. § 52.1172), the gov- ernment contended that Rule 610 was federally enforce- able. C.A. App. 8. The government sought injunctive relief against the continued operation of the eight vinyl coating lines at Ford’s Mount Clemens plant and penal- ties of up to $25,000 per day of violation for each of the coating lines—i.e., penalties of up to $200,000 per day. Id. at 10-17. EPA did not consult with the State of Michigan before filing suit. App., infra, 61a. b. Michigan’s Review Of The Feasibility Of Compli- ance With Rule 610. On March 5, 1979, the staff of the Air Quality Division of the Michigan Department of Natural Resources wrote to Ford acknowledging that 3 As promulgated by the Michigan Air Pollution Control Commis- sion in January 1980, Rule 610 provided in pertinent part (C.A. App. 74): (3) It is unlawful for a person to cause or allow the emission of volatile organic compounds from the coating of * * * vinyl * * * from any existing coating line, in excess of the equiva- lent emission rates as shown in table 63. Table 63, contained within Rule 610, provided that the allowable emission rate for the coating of vinyl (the vinyl “coating stand- ard’) was 4.5 pounds of VOCs “per gallon of coating (minus water) as applied.” C.A. App. 77. 8 Rule 610, which was based on the limited data available in the late 1970s, might prove to be more stringent than RACT, even though that was the standard required by the Clean Air Act and the standard that the State in- tended to impose. App., infra, 34a. Thereafter, the State concluded that the emission rate limitation in Rule 610 could not reasonably be met by each of the eight vinyl coating lines, but that total emissions could be reduced to an equivalent level by other means. [bid. In light of the State’s conclusions, Ford and the State negotiated a Consent Order in May 1983. This order set a new VOC limitation and established a schedule for in- stallation of state-of-the-art control equipment on two of the eight coating lines at the Mount Clemens plant (Nos. 7 and 8). App. infra, 34a. The Consent Order further required a 250-ton reduction in total VOC emissions from the remaining six coating lines by December 31, 1985. Ibid. Pursuant to that order, Ford spent $3 million to install state-of-the-art control equipment on coating lines 7 and 8. App., infra, 45a. In addition, Ford spent $3 million to achieve an additional 450-ton reduction in total VOC emissions, substantially exceeding the 250-ton re- duction called for by the order. Jbid. The reduction was achieved by installation of an “embossed last” process that reduced the number of coatings applied. Ibid. Even though Ford subsequently met or exceeded the goal for reducing total VOC emissions that formed the basis for the rate limitation in Rule 610, as well as the goal set in the Consent Order, it was apparent by late 1983 that Ford still would be unable to meet the emis- sions rate limitation of Rule 610 or of the 1983 Order on coating lines 7 and 8. App., infra, 34a-36a, 41a, 48a. In February 1984, therefore, Ford and the State began another extensive technical review of VOC emissions at the Mount Clemens plant. This review was ongoing when 9 the United States, without consulting the State of Michi- gan, sued to enforce the orginal rate limitation in Rule 610. ce. Ford’s State Court Action. On October 16, 1984, Ford filed suit against the Michigan Air Pollution Con- trol Commission, the Michigan Natural Resources Com- mission, and the Michigan Department of Natural Re- sources in the Circuit Court for the County of Ingham, Michigan. Ford Motor Co. v. Michigan Air Pollution Control Comm’n, No. 84-53025-CZ. Ford contended, inter alia, that Rule 610 was “contrary to the Michigan Air Pollution Act and void and unenforceable” because the “emission limits set forth in the Rule and allegedly applicable to Ford * * * are technically and economically infeasible.” C.A. App. 80. Following the filing of Ford’s state court action, the staff of the Air Quality Division of the Department of Natural Resources intensified its technical review of Rule 610. The staff reported to the Air Quality Control Commission that, when originally established, the limit on VOCs in Rule 610 was believed to be economically and technologically feasible based on the data then available. App., infra, 34a. Upon reevaluation, however, the staff concluded that the rate-based limit could not and cannot be achieved through the application of RACT. /d. at 34a-35a. The fundamental flaw in Rule 610 was the underlying as- sumption that all VOCs used at the coating lines were emitted into the atmosphere and that RACT would cap- ture 90% of the VOCs emitted from the coating lines and would remove 90% of the VOCs captured, leading to a reduction in the rate of VOC emissions of 81%. ZId. at 43a. In fact, the “capture efficiency” for state-of-the-art control equipment is below 60%. Id. at 46a-48a. Rule 610 had failed to account for losses of VOCs inherent in the production process, including a substantial portion that leave the plant as part of vinyl products and cannot 10 be captured by any emission control equipment. Jd. at 47a. On January 15, 1985, the Air Pollution Control Com- mission held a public hearing to consider the staff’s rec- ommendation that it adopt an order setting new VOC emission limits and a schedule for compliance at the Mount Clemens plant. App., infra, 33a-37a, 55a-62a. At the hearing, the Commission heard statements from the staff and from Ford. In addition, a representative of the Michigan Attorney General’s office testified that the Com- mission should adopt the staff recommendation if it concluded, based on the evidence presented, that the State had “made a mistake in the promulgation of” Rule 610 (id. at 60a). The State’s counsel further stated that “all of the people that I would look to as witnesses to defend your rule are people who are here recommending to you that the rule be changed.” Jbid. Thus, any defense of the rule in the Michigan state court action brought by Ford would have been a sham. After considering the staff report and the oral and written comments received (including comments filed by the United Automobile Workers of America in support of Ford’s position), the Commission formally adopted the staff’s recom- mended “Stipulation for Entry of Consent Order and Final Order” (id. at 61la-62a). On March 18, 1985, after reviewing and considering the Order of the Air Pollution Control Commission, the Staff Report of the Department of Natural Resources, the comments on that report, and the transcript of the Commission’s public hearing, the Circuit Court for Ing- ham County entered a Final Judgment on Ford’s verified petition. App., infra, 22a-23a. The Final Judgment ex- pressly affirmed the Commission’s Order and adopted the following Findings of Fact made in the Order (id. at 22a, 27a-28a) : 11 5. In-adopting the Vinyl Limit [Rule 610], which was recommended by the Staff, the Commission be- lieved that they were imposing a requirement which was technologically and economically feasible; that is, [a] requirement that was achievable through the use of reasonably available control technology. 6. Based on the Staff’s review of technica! and eco- nomic data for Coaters 7 and 8 and upon the Com- mission’s hearing of testimony from the Staff and the Company, the Commission finds that for coaters 7 and 8, the Vinyl Limit was (and is) not achievable through the use of reasonably available control tech- nology. 7. Based upon the Staff’s review of all technical and economic data, and upon the hearing of testimony from the Staff and the Company, the Commission finds that the emission control program set forth and agreed to below does represent emission limits which are achievable through the use of reasonably avail- able control technology. Accordingly, the Circuit Court’s judgment vacated the vinyl coating standard contained in Rule 610 as of tts effective date, December 31, 1982, and ordered Ford to adhere to the emission control program set forth in the Air Pollution Control Commission’s Order, which it found to constitute “reasonably available control technology.” App., infra, 28a. That program set new VOC emission rate limits for the two controlled coating lines (Nos. 7 and 8), provided for the phased shut-down of the six uncontrolled coating lines, and set a plantwide cap on total VOC emissions of 440 tons (or roughly an 88% re- duction from the 3700 tons emitted at the plant in 1977). Id. at 28a-30a, 51a-52a.* In addition, the state court judgment endorsed that portion of the Commission’s Order that required submis- 4In accordance with the Air Pollution Control Commission’s Order and the Final Judgment of the Circuit Court, the last of the six uncontrolled coating lines ceased operating on November 30, 1985. 12 sion of the new compliance program to EPA for approval as a SIP revision. App., infra, 30a. Pursuant to that Order, on March 6, 1985—more than two years ago— Michigan requested EPA to approve the Commission’s Order as a SIP revision. EPA has not taken any action on Michigan’s submission, however, even though the sub- mission demonstrates that an important part of the exist- ing SIP was invalid because it was promulgated on the basis of a mutual mistake about economic and technologi- cal feasibility. EPA has simply sat on its hands, acting neither to approve the proposed revision nor to disap- prove it and promulgate its own SIP provision instead. At the same time, EPA has persisted in its efforts to collect penalties of up to $200,000 per day for years of alleged noncompliance with the original invalid SIP. 6. The Decisions Below. Following entry of the Mich- igan Circuit Court’s final judgment, Ford moved for judgment on the pleadings in this action. Ford argued that the state court’s invalidation of Rule 610 as of its effective date meant that there was no enforceable SIP provision upon which to premise EPA’s enforcement ac- tion. The district court agreed and ordered the dismissal of the government’s action. App., infra, 14a-15a. The court of appeals reversed. App., infra, la-9a. In essence, the court of appeals decided an issue that was not before it, holding that SIP revisions may not take effect until they are approved by EPA. 7d. at 4a, 6a-7a. Rather than focusing on the effect of a state court judgment holding a SIP void ab initio, the court appar- ently reasoned that the state court’s judgment invalidat- ing Rule 610 represented an advisory opinion that, while perhaps relevant to the amount of penalties to be im- posed, was otherwise entirely ineffective until EPA chose —at whatever time in the future—to approve or dis- approve it as a SIP revision. Thus, the Sixth Circuit concluded that Rule 610 remained federally enforceable unless and until EPA approved the proposed SIP revision submitted by the State. App., infra, 4a, 7a-9a. 13 The court of appeals distinguished Sierra Club V. Indiana-Kentucky Electric Corp., 716 F.2d 1145 (1983), in which the Seventh Circuit had held unenforceable a SIP provision determined by a state court to be void ab initio. The Sixth Circuit reasoned that the rationale of Indiana-Kentucky applied only to SIP’s invalidated for “procedural” reasons. App., infra, 5a-6a. Here, by contrast, the state court’s invalidation of Rule 610 rested on what the court of appeals termed “technical” grounds, i.e., a determination of technological and economic in- feasibility. App., infra, 6a. The Sixth Circuit did not explain why a state court can be deemed to have power to invalidate a SIP on procedural grounds but not to have power to invalidate it on grounds of technological or eco- nomic infeasibility—even though it is precisely the latter issue that is within the exclusive jurisdiction of the state courts under this Court’s decision in Union Electric. On Ford’s motion, the court of appeals stayed the issu- ance of its mandate pending the timely filing and dispo- sition of this petition. REASONS FOR GRANTING THE PETITION The decision below is in direct conflict with the decision of the Seventh Circuit and cannot be reconciled with an analogous decision of the Tenth Circuit. In addition, the Sixth Circuit’s decision presents an important and sensi- tive question concerning the proper roles of EPA and the state courts in connection with the administration and enforcement of state air quality plans—a question that has not been decided by this Court, that has now divided the courts of appeals, and that is an inevitable conse- quence of this Court’s decision in Union Electric that economic and technological infeasibility is not a proper issue either for EPA or the federal courts. Moreover, the decision below is wholly incompatible with the federal- state partnership created by the Clean Air Act, displays a remarkable disregard for the final judgment of a state 14 court in an area committed to the exclusive competence of the state judicial system, and raises substantial con- cerns under the Due Process Clause. The Sixth Circuit ignored the role that Congress in- tended for the states in the administration of the Clean Air Act under the guise of advancing federal inter- ests that Congress has already accommodated within the structure of the Act itself. Thus, the court of ap- peals wrongly concerned itself with a supposed threat to EPA’s enforcement powers if state courts were permitted to render an EPA-approved SIP unenforceable. In fact, however, Congress expressly provided EPA with the authority to promulgate its own regulations in the event that a state fails to fulfill its role under the Act. Noth- ing in the Act suggests that the remedy Congress in- tended for a state-level failure to comply was a nullifi- cation of the final judgment of a state court. The Sixth Circuit’s decision is, in addition, so funda- mentally unfair and draconian that it cannot have been within the contemplation of Congress. Here, for exam- ple, the federal government seeks to impose penalties of up to $200,000 per day against a company that has acted in the utmost good faith by pursuing the state court remedies to which it was remitted by this Court in Union Electric. According to the court of appeals, however, that state court proceeding—which represented Ford’s only opportunity to be heard on its claims of technological and economic infeasibility—-was simply an advisory opinion that EPA was free to ignore. Needless to say, providing an opportunity to be heard does not satisfy due process if the outcome of an exercise of that opportunity can be treated as a legal nullity. The problem presented 'y this case has arisen on sev- eral occasions in the past, and it will continue to arise whenever states propose SIP revisions that subsequently turn out to have been invalidly promulgated. In light of 15 the conflict in the circuits, review by this Court is plainly warranted in order to ensure the continued smooth func- tioning of the federal-state partnership intended by Con- gress in the Clean Air Act. on) Tin ew: A. The Federal Government May Not Maintain An En- forcement Action Under The Clean Air Act Based On Provisions Of A State Implementation Plan That A State Court Has Determined To Be Invalid As Of Their Inception. As this Court’s decisions in Union Electric and Train v. NRDC, 421 U.S. 60 (1975), make clear, the Clean Air Act is a federal-state partnership. Under that part- nership, EPA is responsible for determining the na- tional standards that must be attained under the Act, but the individual states have the responsibility and au- thority for determining the precise mix of control strat- egies best suited to their own needs and the “primary re- sponsibility for assuring air quality within the entire geographic area comprising such State.” 42 U.S.C. § 7407(a) (emphasis added). As the Court stated in Train v. NRDC, 421 U.S. at 79 (emphasis added) : The Agency is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of de- termining and enforcing the specific, source-by-source emission limitations which are necessary if the na- tional standards it has set are to be met. In order to give meaning to Congress’s policy of state primacy, the federal courts have consistently held that challenges to a state SIP must be brought in the state courts. In Union Electric, for example, this Court first held that a federal court may not review claims that a SIP is technologically or economically infeasible because the Administrator himself may not consider such claims in deciding whether to approve a SIP. The Court added, however, that the unavailability of review in federal ieneedemecriiemeniiatieee mille 16 court did not mean that these claims could never be liti- gated: a party dissatisfied with a state agency’s SIP may “take its claims of economic or technological infeasi- bility to the state courts.” 427 U.S. at 266-267. See also Western Oil & Gas Ass’n v. EPA, 633 F.2d 803, 814 & n.14 (9th Cir. 1980); Ohio Environmental Council v. EPA, 593 F.2d 24, 29 (6th Cir. 1979); Appalachian Power Co. v. EPA, 579 F.2d 846, 854-855 (4th Cir. 1978) ; Indiana & Michigan Electric Co. v. EPA, 509 F.2d 839, 847 (7th Cir. 1975). Ford did just that in this case. It sued in state court and obtained a final judgment holding that Rule 610 was invalid as of its effective date. But the court of appeals —in a remarkable about-face from the prior teachings of the federal courts—held that EPA need give no effect to that state court judgment. Ford thus finds itself in the middle of a game of ping-pong in which, after properly resorting to state court, it is bounced back to federal court to face a federal enforcement action bottomed on ne continued viability of a rule that the state court has held invalid from its inception. Contrary to the court of appeals’ assumption, neither the Clean Air Act nor any “settled case law” (App., infra, 3a) compels such a Kafkaesque result. The only other court of appeals to have considered the precise question presented here reached exactly the op- posite result. In a situation that cannot be meaningfully distinguished from this case, the Seventh Circuit ruled that a state court judgment invalidating a SIP as of its inception constituted a complete bar to a federal action to enforce that SIP. Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145 (1983). The Seventh Cir- cuit reasoned that its holding was compelled by the many federal court decisions directing litigants to take their challenges to state-promulgated SIPs to state court (716 F.2d at 1151 (footnote omitted) ) : AW 9 So Eig d ae a Ewe ee hI 17 If the state court procedural review afforded under the Act is to have meaning, the rulings of the state court must be given effect. * * * * * If we were to find that implementation plan provi- sions were enforceable despite state court invalida- tion of them, the state court review would be mean- ingless. Those who followed our pronouncements concerning the availability of state court review would find that their efforts had been for naught; and the Clean Air Act would be construed to reach the inconsistent result that an implementation plan, the product of a joint federal and state effort under the same Act, would be enforceable in the courts of one level of government but not the other. The Sixth Circuit sought to distinguish IJndiana- Kentucky on the theory that the Seventh Circuit’s hold- ing applied only to SIPs invalidated on state procedural grounds. App., infra, 6a. Nothing in the Seventh Cir- cuit’s analysis, however, indicates that it would reach a different result with respect to a fundamental substan- tive defect under state law. The controlling factor in both this case and /ndiana-Kentucky was that the SIPs suffered from such fundamental flaws in the promulga- tion process that they were invalid from their inception. Furthermore, it was a critical feature of both cases that the issue of validity involved a question—procedural compliance with state law in one case, economic and tech- nological infeasibility in the other—that was within the exclusive jurisdiction of the state courts to pass upon. That the flaw in one case was procedural and in the other substantive cannot possibly justify a different result when, at the end of the day, both plans were declared by their respective state courts to have been nullities from the outset. The total illogic of the “procedural/substantive” di- chotomy relied upon by the Sixth Circuit is further dem- 18 onstrated by the Seventh Circuit’s express endorsement of the decision in Illinois v. Celotex Corp., 516 F. Supp. 716 (C.D. Ill. 1981). There, both Illinois and EPA sought to enforce in federal court a SIP provision that had been invalidated in state court on the “procedural” ground that the state had failed to give adequate con- sideration to the “technological feasibility and economic reasonableness of the regulations.” 516 F. Supp. at 717- 718. The district court dismissed both the state and fed- eral enforcement actions, holding that it “would be an anomaly, if not a denial of defendant’s due process rights, to allow, at this point, full enforcement of those invalid regulations” (id. at 718). It would be equally anomalous to hold that the “procedural” failure ade- quately to consider technological and economic feasibility is a sufficient basis upon which to hold a SIP unenforce- able, but the “substantive” failure to adopt a techno- logically and economically achievable regulation is not. Indeed, if any distinction were to be drawn between “procedural” and “substantive” defects, it would be quite the opposite of the one embraced by the court below. It makes no sense to suggest that a state SIP invalidated in state court for purely procedural defects—defects that are presumably capable of correction—is unenforceable, while a state SIP invalidated in state court because it is so fundamentally flawed in its substantive aspects that no source is capable of complying with it may neverthe- less form the basis for a federal enforcement action—an action in which, further, the very issue of infeasibility may not even be raised in defense. The court of appeals advanced other grounds on which to distinguish the Seventh Circuit’s decision in Jndiana- Kentucky, but they are no more persuasive than the pro- cedural/substantive dichotomy addressed above. First, the Sixth Circuit insisted that Rule 610, unlike the in- _s _—- = =o ee ee ert a a ee 19 validated Indiana SIP considered by the Seventh Circuit, could not be deemed void from its inception. Thus, the court devoted a substantial portion of its opinion (App., infra, 4a-7a) to the proposition that SIP revisions may not take effect until they are approved by EPA and that the provisions of an existing SIP remain effective and enforceable pending such approval. See Train v. NRDC, 421 U.S. at 92. In essence, the court of appeals treated the state court’s judgment as nothing more than a step— and a purely advisory one at that—along the way toward processing a SIP revision. See App., infra, 8a. If that were all this case involved, Ford would agree that the government could maintain the present enforce- ment action on the authority of this Court’s decision in Train v. NRDC. But the Sixth Circuit fundamentally misunderstood the effect of the state court’s judgment that Rule 610 is not—and never was—RACT. The es- sential holding of the state court is that Rule 610, although intended to reflect RACT, in fact is not and never has been technologically and economically feasi- ble. App., infra, 27a-28a.° In other words, as the rec- ord before the state court showed, the parties labored from the very outset under a mistake of fact that caused the State of Michigan to submit, and EPA to approve, a SIP provision that could not be achieved through RACT when it was adopted and cannot be achieved through RACT now. Simply stated, therefore, Rule 610 was void as of its effective date, as the state court’s judgment expressly held. A SIP provision promulgated in the mis- 5 The state court also endorsed the Air Pollution Control Com- mission’s.Order calling for the submission of a SIP revision to EPA. But the court of appeals clearly erred in treating the state court judgment as if that had been the only matter determined. On the contrary, the judgment of invalidity stands wholly apart from the proposed revision, and that judgment would be sufficient to bar this federal enforcement action whether or not the state court had also endorsed the proposed revision. 20 taken assumption that it represented RACT means that there never was a federally-enforceable SIP provision applicable to Ford’s Mount Clemens plant. See /ndiana- Kentucky, 716 F.2d at 1152. The court of appeals also seemed concerned that states might “trump” EPA’s enforcement pewers by contriving to have their state courts invalidate SIP provisions so as to make their states more attractive places for in- dustry to locate. App., infra, 5a. This speculation, which is premised on the unacceptable notion that state courts and administrative agencies will act in bad faith, has no support whatever in the record of this case. What is more, the court of appeals failed to appreciate that the Clean Air Act gives EPA all the tools it needs to deal with any such possibility. As the Seventh Circuit ex- plained in Indiana-Kentucky, Congress understood that states might fail in their obligation to promulgate valid 8 As previously noted (see page 10, supra), the Michigan At- torney General’s office advised the Air Pollution Control Commission that it had no defense to the state court action initiated by Ford. Thus, not only is there no hint in this record of any collusion be- tween Michigan and Ford, there also is no basis for viewing the consent judgment entered by the state court as any less authorita- tive than a final judgment entered after protracted litigation. The court of appeals also observed that EPA was not a party to Ford’s state court action nor was it formally notified of that action. See App., infra, 3a. In addition to the fact that the United States similarly failed to notify the State of Michigan before it instituted this enforcement action against Ford (see id. at 61a), any attempt to make the government a party to the state court action would have been a futile gesture. EPA of course would have been immune from any suc- suit (see, e.g., United States v. Mitchell, 445 U.S. 535, 588 (1980) ), and the government almost certainly would have followed the long-standing Department of Justice policy of remov- ing the action to federal court for the purpose of obtaining a dismissal. See U.S. Attorneys’ Manual 4-5.700 at 24 (3/84). More- over, EPA has insisted throughout this action that its own policy is not to participate in state proceedings involving SIPs but instead to take a “wait-and-see” attitude. See Affidavit of William L. McDowell, | 4 (C.A. App. 84). ea steely etic joint: 21 SIPs, and it therefore provided a federal remedy in the Act itself (716 F.2d at 1153-1154) : The remedy Congress built into the Act in the event of a state level failure is for the EPA to demand an immediate state replacement or to promulgate its own implementation plan (or appropriate provision) for the state. This is the remedy Congress foresaw for state inaction or ineffectiveness. * * * * * Where, as here, Congress has clearly shown an intent to have state participation and an intent to have EPA formulate a plan in the event of state level failures, this court is not free to fashion un- precedented and unusual alternative remedies that have no foundation in the terms of the Act or in the Act’s legislative history. It is important to note that the Seventh Circuit’s ap- proach works no interference with EPA’s ability to en- sure that the goals of the Clean Air Act are met prospec- tively. In this case, for example, it was particularly un- justifiable for the Sixth Circuit to disregard the statu- tory remedy, when EPA has had it within its power for more than two years either to approve Michigan’s pro- posed SIP revision or, if it deems that proposal not to comply with the Act, to propose and promulgate its own SIP provision. In view of this failure to act, it is simply outrageous for EPA to continue to assert the authority to penalize Ford with potential liabilities of $200,000 per day for not complying with the very provision that, more than two years ago, was invalidated by the state court with exclusive jurisdiction to resolve Ford’s claim of infeasibility. EPA’s failure to act clearly demonstrates that it is concerned only with collecting monetary penal- ties rather than advancing the policies of the statute.’ 7™This conclusion is not at all surprising, however, in light of Ford’s reduction in total VOC emissions from its Mount Clemens plant during the period of EPA inaction to a level well below that sought to be achieved under Rule 610. See pages 8, 11 n.4, supra; App., infra, 41a, 48a, 45a. 22 Not only did the court of appeals ignore the statutory remedy for a state’s failure to comply with the Clean Air Act, but it also mistakenly assumed that states have - an incentive to promulgate SIPs that fall short of the minimum requirements imposed by the Act. Under the 1977 amendments, however, precisely the opposite is true. If a state fails to submit an adequate SIP for its ‘“nonattainment” areas (including the area in which Ford’s Mount Clemens plant is located), it is subject to severe restraints on future growth (42 U.S.C. § 7410(a) (2) (I)) and to sanctions such as a cut-off of federal funds for transportation projects (42 U.S.C. § 7506(a)). See, e.g., Michigan v. Thomas, 805 F.2d 176, 179 (6th Cir. 1986); New Mexico Environmental Improvement Division v. Thomas, 789 F.2d 825, 830 (10th Cir. 1986). Thus, a state has every incentive to submit an adequate plan and no reason at all to propose provisions that fail to comply with the Act. The Tenth Circuit’s decision in New Mexico Environ- mental Improvement Division is also material because it follows the Seventh Circuit’s lead by holding that a SIP declared invalid from its inception by a state court is simply a nullity. The issue in that case was whether EPA properly imposed sanctions on New Mexico for failure to submit a SIP after New Mexico’s previously- approved SIP was invalidated by the New Mexico Su- preme Court. Ironically, it was EPA that argued in that case that the original SIP was a nullity. In affirming the agency’s position, the Tenth Circuit cited Indiana- Kentucky with approval and stated (789 F.2d at 833 (emphasis added) ) : It is true that New Mexico did submit a plan which had been approved by the EPA prior to its invalida- tion by the New Mexico Supreme Court. However, mere submission of a plan is not enough. The plan submitted must also consider (i.e., satisfy) all re- quirements of section 7502. The [inspection and as ath inl ed bana 23 maintenance] program contained its infirmity from its inception. Thus, EPA reasonably concluded that a satisfactory SIP in terms of section 7502 require- ments had never been submitted. When the approved SIP contains an element that is invalidated by virtue of state law, adoption by the EPA is also invali- dated. The status is as if the state had not sub- mitted a SIP. EPA cannot have it both ways. EPA was correct in New Mexico Environmental Improvement Division, and it should not be heard to argue that the same result is not required here. B. The Sixth Circuit’s Decision Violates Well-Settled Principles Of Federalism And Comity. The Sixth Circuit’s willingness to allow EPA to ignore the final judgment of the Michigan state court is quite extraordinary. Although we are not aware of any pre- cisely comparable situation, it is clear by way of analogy that the court’s decision violates deeply rooted principles of federalism and comity. This Court has recognized that “in a Union where both the States and the Federal Government are sovereign entities, there are basic concerns of federalism which counsel against interference by federal courts, through injunctions or otherwise, with legitimate state functions, particularly with the operation of state courts.” Trainor v. Hernandez, 431 U.S. 484, 441 (1977). Accord Penn- zoil Co. v. Texaco, Inc., 107 S. Ct. 1519, 1525-1527 (1987); Juidice v. Vail, 4830 U.S. 327, 334 (1977); Younger v. Harris, 401 U.S. 37, 44-45 (1971). In fact, both the Anti-Injunction Act, 28 U.S.C. § 2283, and the Younger abstention doctrine arose from a basic respect for the competence of state courts. See Younger, 401 U.S. at 48. Here, although there has been no interfer- ence with pending state court proceedings, the Sixth Circuit’s disregard for the final judgment of a state court is no less serious an interference with state sov- ereignty. Thus, the court of appeals not only has acted 24 in derogation of “basic tenets of comity and federalism,” Kremer v. Chemical Construction Corp., 456 U.S. 461, 478 (1982), but it has stripped the state court judgment of any legal force, thereby rendering the state court pro- ceeding a nullity. In passing the Clean Air Act, Con- gress could not have intended to permit EPA and the federal courts to proceed in that fashion. See Indiana- Kentucky, 716 F.2d at 1153-1154. C. The Sixth Circuit’s Decision Produces Gross Inequities That Cannot Have Been Intended By Congress. Congress also could not have contemplated the harsh consequences resulting from the court of appeals’ con- struction of the Clean Air Act. The unfairness of re- quiring a party to defend itself against an enforcement action premised on an invalidated regulation would be apparent in any case, but it is particularly egregious in the circumstances presented here. Union Electric teaches that the one issue that can never be litigated in federal court is the economic and technological feasibility of a SIP.“ As previously ex- plained, however (see page 4, supra), economic and technological feasibility is the essence of RACT. Thus, the court of appeals has held that a company’s suc- cessful challenge to a SIP, based on its failure to repre- sent RACT, in the only judicial forum available—a state court—may be disregarded in a federal enforcement action and that the company may be forced to defend itself against enormous monetary penalties for “viola- tions” of a standard that, from its inception, never rep- 8Insofar as this issue is concerned, the court of appeals was simply wrong when it stated that “invalidation of an EPA-approved SIP may only occur in the federal appellate courts on direct appeal from the Administrator’s decision under § 7607(b)(1)” (App., infra, 6a). On the contrary, economic and technological infeasibil- ity is the one issue that can never form the basis for invalidation of an EPA-approved SIP in the federal appellate courts. See Union Electric, 427 U.S. at 266-267. 25 resented RACT. The Sixth Circuit’s only response to this Catch-22 situation is to tell the company that it should seek a SIP revision and, in the meantime, offer its technological and economic arguments as “mitigating” circumstances for a district court’s discretionary consid- eration in the setting of penalties. App., infra, 8a-9a. We find it difficult to understand why anyone should be punished for failure to comply with an invalid regula- tion in the first place, but, in any event, the court of appeals’ suggested answer to this dilemma is wholly in- adequate. The law in the Sixth Circuit is that there is no time limit within which EPA must approve a pro- posed SIP revision. United States v. National Steel Corp., 767 F.2d 1176, 1182 n.1 (6th Cir. 1985). Thus, EPA may sit on a proposed SIP revision indefinitely, as it has done here, while at the same time taking advan- tage of the ruling in this case that the invalidated SIP remains enforceable and subjects “violators” to penalties of up to $25,000 per day—for as long as it may take EPA to act on the proposed revision. As a result, the decision below, coupled with the decision in National Steel Corp., opens the door to substantial abuse. Furthermore, as the Fifth Circuit recognized in Ameri- can Cyanamid Co. v. EPA, 810 F.2d 498, 500 (1987), judicial refusal to allow EPA to profit by its own delay is necessary not simply in fairness to regulated compa- nies, but also out of deference to EPA’s partners in the Clean Air Act’s scheme of cooperative federalism—the states: The emphasis of the statute * * * is upon the im- portant role which the state plays in defining author- ized emissions. * * * The issue then is not so much pollution by American Cyanamid but the default of the EPA in carrying out the congressional intent to work in close cooperation with the states in imple- menting standards and enforcing the Clean Air Act. We emphasize the importance of EPA acting, not for 26 the benefit of American Cyanamid, but for the ben- efit of the State of Louisiana which is by statute des- ignated to play a significant cooperating role with the EPA. Here, too, the State of Michigan is entitled to greater cooperation from EPA than it has received during the more than two years that its proposed SIP revision has been pending. D. The Sixth Circuit’s Decision, By Refusing To Give Any Meaningful Effect To The State Court’s Judgment, Denies Ford Its Right To Due Process. As the Seventh Circuit recognized in Indiana-Kentucky, 716 F.2d at 1151, a ruling denying any meaningful effect to the judgment of a state court invalidating a SIP raises serious constitutional problems. This Court has held that “ ‘due process requires, at a minimum, that * * * persons forced to settle their claims of right and duty through the judicial process must be given a mean- ingful opportunity to be heard.’” Little v. Streater, 452 U.S. 1, 5-6 (1981), quoting Boddie v. Connecticut, 401 U.S. 371, 377 (1971). Moreover, the Court has repeatedly held that this opportunity to be heard must be granted “at a meaningful time and in a meaningful manner.’ ” Brock v. Roadway Express, Inc., 55 U.S.L.W. 4530, 4532 (Apr. 22, 1987), quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976), in turn quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In view of the overriding importance of the meaning- fulness of the opportunity to be heard, it would make a mockery of this fundamental right to allow the Sixth Circuit’s decision to stand. Although Ford has exercised its opportunity to be heard by litigating the validity of Michigan’s SIP in state court, the outcome of that hear- ing has been rendered meaningless because the judgment of the state court has been given no force and effect in federal court, where no hearing on the relevant issues is 27 possible. Surely this result does not comport with Ford’s due process right to a meaningful opportunity to be heard. That right necessarily supposes that the outcome of the hearing will be respected—not that it will be rele- gated to a mere plea for “mitigat[ion]” of penalties im- posed for “violations” of an invalid regulation. See App., infra, 9a.° It is no answer to the procedural run-around created by the court of appeals to assert that “the Clean Air Act envisions situations where standards currently econom- ically or technologically infeasible will nonetheless be en- forced.” App., infra, 8a. Whatever the validity of that statement in other circumstances, it is demonstrably not true in the case of sources subject to a RACT standard, the essence of which is feasibility. See page 4, supra. Although Michigan of course could have adopted a stand- ard more stringent than RACT (see Union Electric, 427 U.S. at 263-265), that was not the State’s intent in this case (see App., infra, 27a, 34a). Contrary to the Sixth Cireuit’s assumption, therefore (id. at 8a), this is not a situation in which Congress intended to “close down” existing plants.” ® The constitutional necessity for according decisive effect to the state court’s judgment is demonstrated by this Court’s recent deci- sion in United States v. Mendoza-Lopez, No. 86-2067 (May 26, 1987). There, the Court held that an alien charged with violating 8 U.S.C. § 1326 (illegal entry following deportation) must be per- mitted to collaterally attack the validity of the underlying deporta- tion order if the deportation proceedings were fundamentally un- fair. See slip op. 9-10. Quite clearly, the Court’s decision would make no sense unless it intended that the outcome of judicial review of the deportation order would be respected. The situation here is not distinguishable in any meaningful sense. Thus, although Ford has had the benefit of judicial review of Rule 610 in state court, the Sixth Circuit’s refusal to require EPA to abide by the state court’s judgment of invalidity just as surely deprives Ford of fundamental fairness as does a prosecution under 8 U.S.C. § 1326 that is bot- tomed on a deportation order entered in the absence of fair procedures. 1© Significantly, the 1977 amendments require far more stringent standards of pollution control than RACT in the case of proposed 28 In any event, even if the Sixth Circuit’s cavalier as- sertion were applicable to this case, the decision below does not comport with the constraints imposed by the Due Process Clause on “governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests.” - Mathews, 424 U.S. at 332. Enforcement of Rule 610 against Ford could subject the company to penalties of up to $25,000 per day for each coating line. Moreover, because compliance with Rule 610 is technologically and economically infeasible, the government’s successful en- forcement of that rule would force Ford to close its vinyl operations at the Mount Clemens plant. In sum, Ford would be deprived of substantial property rights after being afforded only a meaningless opportunity to be heard. This Court therefore should review the judgment below to ensure a constitutional and workable interpreta- tion of the Clean Air Act. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. __ PAUL M. BATOR KATHRYN A. OBERLY STEPHEN M. SHAPIRO Counsel of Record Mayer, Brown & Platt Mayer, Brown & Platt 190 South LaSalle Street 2000 Pennsylvania Ave., N.W. Chicago, Illinois 60603 Washington, D.C. 20006 (312) 782-0600 (202) 463-2000 DOUGLAS E. CUTLER NORMAN W. BERNSTEIN Ford Motor Company 401 Parklane Towers West One Parklane Boulevard Dearborn, Michigan 48126 (313) 322-4891 MAY 1987 new major stationary sources of pollution or proposed modifications to existing major sources. See generally, Chevron, 467 U.S. at 850. APPENDICES : ; ’ ee . \ * ~ - x - mw} “* rr > , - . . . - 7 ° 7 . - ~ - = ‘ . - m4 M4 R ») * APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 85-1945 UNITED STATES OF AMERICA, Plaintiff-A ppellant, v. ForD Motor COMPANY, Defendant-A ppellee. On Appeal from the United States District Court for the Eastern District of Michigan Decided and Filed March 27, 1987 Before: ENGEL and JONES, Circuit Judges; and EDWARDS, Senior Circuit Judge. EDWARDS, Senior Circuit Judge. In this case Ford Motor Company and the United States are litigating a question fundamental to the authority of the federal gov- ernment to control the emission of air pollutants within the boundaries of a particular state. The pollutants at issue are volatile organic compounds which are the principal contributors to ambient ozone. The site of this dispute is a Ford Motor Company plant (la) 2a located in Mount Clemens, Michigan. This factory coats vinyl products with solvent-based coating and emits am- bient ozone from eight production lines. Plaintiff cites a vivid description of the problems posed by ozone from the District of Columbia Circuit Court of Appeals: Ozone is the primary cause of the ill effects asso- ciated with smog, of which it usually comprises 65- 100%. At certain concentration levels, ozone irritates the respiratory system and causes coughing, wheez- ing, chest tightness, and headaches. Due to its irri- tating nature, ozone can aggravate asthma, bron- chitis, and emphysema. Some studies indicate that chronic exposure to fairly low levels of ozone may reduce resistance to infection and alter blood chem- istry or chromosome structure. Ozone can destroy vegetation, reduce crop yield, and damage exposed materials by causing cracking, fading, and weather- ing. American Petroleum Institute v. Costle, 665 F.2d 1176, 1177 (1981), cert. denied, 455 U.S. 10384 (1982). The origin of this dispute is dated a decade ago. In February 1979 the United States Environmental Pro- tection Agency (EPA) promulgated a combined primary and secondary national ambient air quality standard for ozone. This action was based on federal law, § 109 of the Clean Air Act, 42 U.S.C. § 7409. Michigan promulgated a State Implementation Plan which governed pollutants contributing to ozone formation in 1979, and U.S. EPA approved the State Implementation Plan in 1980. Two separate legal proceedings followed. On September 26, 1984, the United States initiated the first action under §113(b) of the Clean Air Act, 42 U.S.C. § 7413(b), to enforce the EPA-approved State Implementation Plan (SIP). A month later, the Ford Motor Company filed suit in a Michigan state court against the Michigan Air Pollution Commission, the Michigan Natural Resources 3a Commission, and the Michigan Department of Natural Resources. Ford sought to enjoin the state defendants from enforcing the State Implementation Plan concern- ing which the United States had filed the first action. EPA was not a party to the state action nor was it noti- fied of its pendency. Ford and the state defendants named above then nego- tiated a consent judgment which was entered March 18, 1985. Ford then filed a motion for summary judgment in the federal proceeding contending that the EPA- approved SIP could not be enforced because the state court consent judgment had invalidated it. On August 5, the United States District Court orally granted the Ford Motor Company’s motion and dismissed the federal gov- ernment’s action. After the United States’ motion for reconsideration and modification of the District Court’s judgment had been denied, the United States initiated this appeal. Ford’s contention in this litigation is that the state court consent judgment is controlling and that the United States has no authority to overrule it. Essentially the United States District Court accepted this point of view. As we see the question posed by this case, it is as follows: whether a state court consent order which was entered in an action brought by the defendant (Ford) against state air pollution regulatory authorities but not the United States or any of its agencies, and which pur- portedly vacated a State Implementation Plan adopted under the Clean Air Act and approved by EPA, pre cludes federal enforcement of the previously federally- approved plan? We believe that under the United States Clean Air Act and settled case law, the answer to this question must be *no.”’ Although it is clear that the Clean Air Act contem- plates very significant participation in air pollution con- 4a trol by state air pollution control agencies, it is equally clear that the final authority is vested in the United States Environmental Protection Agency and the courts of the United States. In Train v. NRDC, 421 US. 60, 64 (1975), the United States Supreme Court pointed out that the 1970 amendments to the Act had “sharply increased federal authority and responsibility in the continuing effort to combat air pollution.” Justice Rhen- quist, now Chief Justice, writing for a nearly unanimous Supreme Court held: [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 Agency. Should either entity determine that granting the variance would prevent attainment or maintenance of national air standards, the polluter 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 reg- ulations remain in effect, and the polluter’s failure to comply may subject him to a variety of enforce- ment procedures. Train v. NRDC, 421 U.S. at 92 (footnote omitted). The Supreme Court’s conclusion in Train is based upon the language of the Clean Air Act, which requires revi- sions of State Implementation Plans to be approved by EPA before such revisions are effective. See 42 U.S.C. § 7410(a) (3) (A) & (i). The ultimate authority of the United States EPA is indeed recognized by the state Staff Report on which the commission’s final order and state court judgment were based. In the Supplemental Amended Answer, Exhibit 3, that report stated: 5a If approved by the Commission the Order will be submitted to the United States Environmental Pro- tection Agency (EPA) as a revision to the State Implementation Plan (SIP). * * * * Because the proposed Order reflects limits that are different than those in the currently approved Mich- igan SIP, the order must be submitted to EPA as a revision to the SIP. Such “site. specific’ SIP revi- sions for existing sources must meet certain criteria in order to be approvable. We observe at this point that standards for purifica- tion of the ambient air simply cannot be set along the boundaries of our 50 states. The winds, of course, recog- nize no such boundaries. The 50 states of this union compete intensely with one another for industry. As Congress has recognized, if 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. Absent final authority in United States EPA, the attainment goals of the Clean Air Act would prove ephemeral. In the face of overwhelming authority declaring that revisions of State Implementation Plans are ineffective until approved by EPA, Ford relies principally on a Seventh Circuit decision, Sierra Club v. Indiana-Kentucky Electric Corp. 716 F.2d 1145 (7th Cir. 1983). Sierra Club was a ciuzen suit seeking to enforce an EPA- approved SIP provision in federal court. Prior to the federal lawsuit, a state appellate court had held the provision invalid on state procedural grounds, namely that the state officer who presided over the hearing on the provision had failed to submit written findings to the Indiana Environmental Management Board, as required by state law. This failure to make written findings made it impossible for the Board to evaluate and review the decision. The Seventh Circuit held that federal enforce- Ga ment was barred because the SIP provision was not adopted in accordance with applicable state procedures, and therefore, was an invalid plan submission to EPA. The SIP, thus, was never valid. The Seventh Circuit, however, acknowledged that the revision or modification of a valid plan must be approved by the EPA to become effective, 716 F.2d at 1152. The court thus. concluded that: Once a plan is adopted by the states and it with- stands any subsequent procedural challenge, then § 7607(b) (1) provides that invalidation may occur only in the federal appellate courts. Id. (emphasis in original). The present suit, unlike Sierra Club, concerns invali- dation of a SIP on technical grounds by a state court. Thus, even under the language of Sierra Club, such in- validation cannot be given effect, because invalidation of an EPA-approved SIP may only occur in the federal ap- pellate courts on direct appeal from the Administrator’s decision under § 7607(b) (1), and revisions and variances of properly promulgated SIPs require EPA approval. This case, in short, does not concern a SIP found invalid on state procedural grounds by a state court, as was the case in Sierra Club.1 Nor does the fact that the consent decree in this case purported to vacate and modify the SIP as of its compliance date render it void ab initio in the sense described in Sierra Club. The mere fact that state authorities, through the discovery of subsequent technical data, or otherwise, change their views on the technological or economic feasibility of a properly adopted emission limit cannot in itself render the original emis- 1The government indicated at oral argument that it may take the position in future litigation that Sierra Club was wrongly de- cided. Because we find Sierra Club readily distinguishable, we neither approve nor disapprove its conclusion that state courts may invalidate EPA-approved State Implementation Plans on state procedural grounds. Ta sion limit unenforceable. As this court has stated, “the Act clearly envisions the possibility of continuous adjust- ments in the basic plan by the State and the EPA. If a plan became unenforceable every time such a revision be- came a possibility, the entire enforcement procedure of the Clean Air Act would be crippled.” Ohio Environ- mental Council v. United States District Court, 565 F.2d 393, 398 (6th Cir. 1977) (citations omitted). Instead, the original emission limit remains fully enforceable un- til a revision or variance is approved by both the State and EPA. Id. Ford raises two additional arguments. First, Ford ar- gues that EPA is barred from asserting the validity of the SIP by the final judgment of the Michigan Circuit Court. Ford’s reliance on collateral estoppel borders on the frivolous. First, it is questionable whether the con- sent judgment, which specifically states that it should be transmitted to EPA for approval as a SIP revision, was intended to do any more than invalidate the SIP for state law purposes. Second, it is doubtful whether EPA can be held to be in privity with the State of Michigan as required by collateral estoppel principles. Third, it is questionable whether the consent judgment on which Ford relies meets the “actual litigated” collateral estoppel re- quirement. Fundamentally, however, we must find collateral estoppel inapplicable to this case, because Congress, as demon- strated above, has given EPA the final authority to ap- prove revisions of EPA-approved SIPs. State courts thus lack the authority to invalidate EPA-approved SIPs on infeasibility grounds. See Train v. NRDC, supra, (ex- isting SIP enforceable until SIP revision approved by EPA). The Clean Air Act thus modifies the operation of - the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, and determines the permissible effect of the state court judgment at issue. Second, Ford argues that refusal to give effect to the Michigan Circuit Court judgment would violate Ford’s —_— 8a Fifth Amendment due process rights. Ford notes that state court is the only forum available for challenging the technological and economic feasibility of SIP provi- sions. Ford argues that the failure to give binding effect to the feasibility determination made by the only avail- able forum deprives it of property without a meaningful right to be heard. Ford’s contention can best be answered by noting that the Clean Air Act envisions situations where standards currently economically or technologically infeasible will nonetheless be enforced. See Union Electric Co. v. EPA, 427 U.S. 246, 258-59 (1976); National Steel Corporation Great Lakes Steel Division v. Gorsuch, 700 F.2d 314, 324-25 (6th Cir. 1983). Congress has the authority to demand that “existing sources of pollutants either should meet the standard of the law or be closed down... .”, regardless of whether such standards are currently feasi- ble. S. Rep. No. 91-1196, p. 2-3 (1970), quoted in Union Electric Co., supra, at 259. In addition, we note that meaningful opportunities for raising claims of technological and economic infeasibility have been provided by the Act. See Union Electric Co., supra, at 266-69. While the attainment of national stand- ards remains paramount, id. at 268, emission sources such as Ford are offered the opportunity to have significant in- put on the setting of emission limits through the ap- propriate voicing of feasibility concerns. Ford, for ex- ample, participated in the state’s promulgation of the SIP in 1979 and in EPA’s approval of the SIP in 1980. Ford’s subsequent challenge of the SIP on feasibility grounds in the state court has resulted in the state proposing a revision of the SIP to EPA for approval. Thus the state court judgment, while not binding on EPA, is significant, because it has effected the first step in the revision process: the proposal of a revision to EPA by the state. 9a Furthermore, technical infeasibility coupled with good faith efforts can be considered by the district court as a factor mitigating against ‘the imposition of monetary penalties in the enforcement action. On the other hand, “the absence of demonstrable good faith efforts toward compliance should serve to dampen any enthusiasm for technological and economic arguments advanced in de- fense of a claimed violation.” Indiana & Michigan Elec- tric Co. v. EPA, 509 F.2d 839, 845 (7th Cir. 1975). The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. 10a APPENDIX B UNITED STATES OF AMERICA IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION 84 CV 4459 DT UNITED STATES OF AMERICA —) ForD MOTOR COMPANY, Defendant. MOTION PROCEEDINGS HAD before the HONORABLE GEORGE WOODS, United States District Court Judge, at 272 Fed- eral Courthouse on Monday, August 5, 1985. APPEARANCES: JOEL GROSS, ESQUIRE Assistant United States Attorney U.S. Department of Justice 10th and Pennsylvania NW Room 1250 Washington, D.C. 20530 Appearing on behalf of the Government. ROBERT A. FINEMAN, ESQUIRE 2290 First National Building Detroit, Michigan 48226 Appearing on behalf of the Defendant. lla [21] THE COURT: *** This complaint was brought at the request of the Ad- ministrator of the USEPA alleging that Ford was vio- lating the provision of the Michigan State Implementa- tion Plan, SIP as it is called, with the Defendant Ford pointing out that SIP was vacated in the Ford Motor Company in Ingham County in March of 1984. Ford then brought this motion for judgment on the pleadings. Both the parties have eloquently put their positions and all their arguments on the record. [22] The Court will concern itself with the reiteration that Ford made in its motion. The motion being based solely on the final judgment entered in the Ingham County case. Ford states, of course, as we have heard it, makes no claim or contention upon this motion that any re- vised, and I’m quoting, that any revised or modified rule or compliance program was Federally effective or bind- ing upon the EPA without EPA’s approval of that pro- gram as a SIP, S-I-P, revision. They have contended, Ford that is, that the sole issue before the Court is as the Court eloquently stated earlier is the legal effect of the State Court judgment. The Defendant contends that since the State rule has been declared void ab initio on the grounds that such rule was improper and erroneously adopted, that this Court simply must find that binding in this action and grant summary judgment. Ford has contended that there are three separate grounds on which the Court must grant their motion. One, that Federal enforcement is barred as a result of the invalidation of Rule 610 by the State Court. Second, that the Plaintiff is estopped by the State Court judgment from asserting the validity of Rule 610 under the doctrine of full faith and credit res judicata and collateral estoppel. And, third, enforcement by this 12a Court [23] Rule 610 would be a denial of Ford’s con- stitutional due process rights. In response and in reply memorandum and in their argument, the Defendant Ford has sought to show that the Plaintiff’s reliance on the Sierra, Indiana case and the Illinois Celotex case is and has been misplaced. And, also cuts both ways actually. The Plaintiff relied on these two cases for support, and the Defendant contends also that the Indiana-Ken- tucky case supports its position. And, the Defendant quotes the following in Sierra Club, the Seventh Circuit found that a Federally approved SIP was no longer en- forceable since it had been invalidated by a State Court on the ground that it had not been properly promulgated in the first place. Well, of course Plaintiff contends that SIP was prop- erly promulgated in the first instance where the Defend- ant points out that the consent final judgment held that Rule 610 was promulgated on the erroneous assumption and belief that it represented reasonably available con- trolled technology. The Defendant contends that the SIP invalidated on substantive rather than procedural grounds cannot re- main Federally enforceable. And, that Plaintiff has been unable to find any case law in support of such a position. And, Mr. Fineman also points out that the proper[ 24] procedure in such a case is to first address the invalidity of State promulgated State regulations in a State Court. He also pointed out the fact that this was—in effect that this was a consent judgment should absolutely and in no way diminish the result. In his reply brief memorandum, the Defendant re- iterated previous argument in fuller fashion, again point- ing to the res judicata collateral estoppel and full faith and credit and demands that the Court find in its favor. The Court is convinced of the soundness of the prior State Court proceeding, and the consent final judgment, and finds in favor of Ford and grants the motion. ~~ ee ee et es et er es ae 13a It appears to this Court Ford was following the proper procedure in first taking the SIP in the State Court as it should have effect and binding. Mr. Fineman, prepare a proper order after you do business with Mr. Gross who has come all the way from Washington, and see if you can settle this and have the proposed order in to Ms. Henson by one o’clock Friday. MR. FINEMAN: I will certainly try to do that, sir. THE COURT: All right. (Motion concluded. ) l4a APPENDIX C UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Civil Action No. 84-CV-4459-DT Hon. GEORGE E. Woops UNITED STATES OF AMERICA, Plaintiff and Counterdefendant, Vv. ForD MOTOR COMPANY, Defendant and Counterplaintiff, Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Additional Counterdefendant. [Filed Aug. 14, 1985] JUDGMENT OF DISMISSAL OF PLAINTIFF’S COMPLAINT This matter having come on before th: Court upon the motion of defendant Ford Motor Company for judg- ment on the pleadings and Ford having submitted its motion and brief in support thereof and plaintiff United States of America having submitted its brief and the affidavit of William L. MacDowell in opposition and Ford having submitted its reply memorandum and the parties 15a having appeared before the Court for oral argument on August 5, 1985 and the Court having heard such argu- ment and being otherwise fully advised in the premises and the court having determined, for the reasons set forth by the Court on the record on August 5, 1985 that Ford’s motion should be granted now, therefore; IT IS HEREBY ORDERED AND ADJUDGED that the complaint of the United States of Amei.ca and each count and claim for relief therein is hereby dismissed with prejudice. /s/ George Woods U.S. District Court Judge APPROVED AS TO FORM: HONIGMAN MILLER SCHWARTZ AND COHN Attorneys for Defendant By /s/ Robert A. Fineman ROBERT A. FINEMAN 2290 First National Building Detroit, Michigan 48226 (313) 256-7722 JOEL M. SHERE United States Attorney By /s/ Geneva S. Halliday GENEVA S. HALLIDAY Assistant U.S. Attorney 817 Federal Building Detroit, Michigan 48226 (313) 226-2163 16a APPENDIX D UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION No. 84-CV-4459-DT Hon. GEORGE E. Woops UNITED STATES OF AMERICA, Plaintiff, VS. ForD Motor COMPANY, Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION AT A SESSION of said Court, held in the United States Courthouse, in the City of De- troit, State of Michigan, on the 27th day of September, 1985. PRESENT: THE HONORABLE GEORGE E. Woops United States District Judge This matter having come before the Court on plain- tiff’s Motion for Reconsideration and Modification; The Court having reviewed the pleadings submitted herein, and responses and replies thereto, and being otherwise fully informed in the premises; IT IS HEREBY ORDERED that plaintiff’s motion be and the same is DENIED, the Court determining that its prior ruling on the defendant’s Motion for Summary Judgment was correct as ordered. The Court is per- ee ee ee ees Rat i ti ner ALL itl Pi CE ET cl . SAID eS AA 17a suaded that the State Court Judgment vacated the entire vinyl coating standard contained in Rule 610, as shown by the express findings: . . . the Vinyl Limit was (and is) not achievable through the use of reasonably available control technology. Stipulation for Entry of Consent Order and Final Order, Paragraph 6, February 1, 1985. Although the above language refers specifically to Lines 7 and 8, the Court finds that the language contained in the Final judgment, Ford Motor Company v. Michigan Air Pollu- tion Control Commission, No. 84-53025-CZ (Cir. Ct. Ingham County, March 18, 1985), adopting the Findings of Fact Nos. 4, 5, 6 and 7 of the Stipulation for Entry of Consent Order and Final Order, February 1, 1985, mandates a finding that Table 63, Rule 336.1610, is vacated in regard to the Ford Motor Company Mt. Clemens Vinyl Plant, and all existing vinyl lines therein that facility. | So ordered. /s/ George E. Woods GEORGE E. Woops United States District Judge 18a APPENDIX E UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 85-1945 UNITED STATES OF AMERICA, Plaintiff-Appellant, Vv. ForD MOTOR COMPANY, Defendant-A ppellee. Before: ENGEL and JONES, Circuit Judges; and EDWARDS, Senior Circuit Judge. ; [Filed Mar. 27, 1987] JUDGMENT ON APPEAL from the United States District Court for the Eastern District of Michigan. THIS CAUSE came on to be heard on the record from the said district court and was argued by counsel. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this court that the judgment of the said district court in this case be and the same is hereby reversed and the case is remanded for further proceedings consistent with this opinion. 19a Each party is to bear its own costs on appeal. ENTERED BY ORDER OF THE COURT /s/ John P. Hehman JOHN P. HEHMAN Clerk Issued as Mandate: COSTS: I cs cccncesaessveneuscenns $ ia saekcscinnccansanes $ eh $ 20a APPENDIX F STATE OF MICHIGAN CIRCUIT COURT FOR THE COUNTY OF INGHAM Hon. THOMAS L. BROWN File No. 84-53025-CZ ForD Motor COMPANY, a Delaware Corporation, Plaintiff, Vs. MICHIGAN AIR POLLUTION CONTROL COMMISSION, MICHIGAN NATURAL RESOURCES COMMISSION and MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendants. CERTIFICATE UNDER 28 USC § 1738 At a session of said Court held in the City of Lansing, County of Ingham, State of Michigan on May 20, 1985 PRESENT: HON. THOMAS L. BROWN Circuit Court Judge NOW COMES the Honorable Thomas L. Brown, Cir- cuit Court Judge of Ingham County, Michigan, and hereby certifies that the attestation, dated May 20, 1985, by County Clerk, Lingg Brewer, on the attached Judge- ment is in the proper form. The attached Final Judg- ment was entered on March 18, 1985 in the above captioned case by the Honorable Thomas L. Brown. /s/ The Honorable Thomas L. Brown THE HONORABLE THOMAS L. BROWN Circuit Court Judge 2la Drafted by: Gary A. Trepod (P-21561) Honigman Miller Schwartz and Cohn Michigan National Tower, Suite 636 Lansing, Michigan 48933 (517) 484-8285 22a STATE OF MICHIGAN CIRCUIT COURT FOR THE COUNTY OF INGHAM File No. 84-53025-CZ Forp Motor CoMPANY, a Delaware Corporation, - Plaintiff, MICHIGAN AIR POLLUTION CONTROL COMMISSION, MICHIGAN NATURAL RESOURCES COMMISSION and MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendants. FINAL JUDGMENT At a Session of the Circuit Court Held in the City of Lansing on March 18, 1985. PRESENT: THE HONORABLE THOMAS L. BROWN Cireuit Judge Upon the joint Motion for Entry of Final Judgment, it is the judgment of this Court that the agreement of the parties, as reflected in the Stipulation for Entry of Consent Order and Final Order, a copy of which is attached as Exhibit A, and which is hereby incorporated by reference, is an appropriate resolution of the dispute between the parties. NOW THEREFORE: It is Ordered and Adjudged that the “Stipulation for Entry of Consent Order and Final Order” of the Michi- gan Air Pollution Control Commission, SIP No. 1-1985, is hereby AFFIRMED and that Findings of Fact Nos. 4, 5, 6, and 7 made therein are adopted by the Court. It is Further Ordered and Adjudged that pursuant to 1969 PA 306, as amended, § 106 (2), MCL 24.306: wee 23a 1) The Ford Motor Company shall fully comply with the abatement program set forth in the “Stipulation for Entry of Consent Order and Final Order” of the Michi- gan Air Pollution Control Commission. 2) Table 63, of R 336.1610, of the rules of the Michi- gan Air Pollution Control Commission is hereby vacated and modified, with regard to the Ford Motor Company Mt. Clemens Vinyl Plant, to define reasonably available control technology, after December 31, 1982, as the emis- sion control program set forth in the “Stipulation for Entry of Consent Order and Final Order” of the Michi- gan Air Pollution Control Commission. It is Further Ordered that no costs are awarded, a public question being presented. /s/ The Honorable Thomas L. Brown THE HONORABLE THOMAS L. BROWN Circuit Judge Approved As to Form: FRANK J. KELLEY HONIGMAN MILLER SCHWARTZ Attorney General AND COHN By /s/ Stewart H. Freeman By /s/ Robert A. Fineman STEWART H. FREEMAN ROBERT A. FINEMAN Assistant Attorney General JOSEPH M. POLITO in Charge Attorneys for Plaintiff Attorneys for Defendants 2290 First National Building Environmental Protection Detroit, Michigan 48226 Division (313) 256-7722 720 Law Building Lansing, Michigan 48913 (517) 373-1110 24a STATE OF MICHIGAN CIRCUIT COURT FOR THE COUNTY OF INGHAM File No. 84-53025-CZ ForD Motor COMPANY, a Delaware Corporation, Plaintiff, vs. MICHIGAN AIR POLLUTION CONTROL COMMISSION, MICHIGAN NATURAL RESOURCES COMMISSION and MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendants. STIPULATION The parties stipulate and agree as follows: 1. Entry of Final Judgment in the form attached hereto as Exhibit I shall be sought based upon the fol- lowing record: a. Stipulation for Entry of Consent Order and Final Order of the Michigan Air Pollution Control Commis- sion, SIP No. 1-1985, a copy of which is attached hereto as Exhibit II. b. Michigan Department of Natural Resources Air Quality Division’s Staff Activity Report dated January 15, 1985, a copy of which is attached hereto as Exhibit Ill. ec. Comments of Ford Motor Company dated Janu- ary 8, 1985, attached hereto as Exhibit IV. d. Comments of United Automobile, Aerospace, Agri- cultural Implement Workers of America (UAW) dated January 7, 1985, attached hereto as Exhibit V. 25a e. Transcript of proceedings held before the Michigan Air Pollution Control Commission on January 15, 1985 at a public hearing, a copy of which is attached hereto as Exhibit VI, which the parties agree is an accurate record of the proceedings held before the Michigan Air Pollution Control Commission at the public hearing on January 15, 1985. By /s/ FRANK J. KELLEY Attorney General Stewart H. Freeman STEWART H. FREEMAN Assistant Attorney General in Charge Environmental Protection Division 720 Law Building Lansing, Michigan 48913 (517) 373-1110 HONIGMAN MILLER SCHWARTZ AND COHN ROBERT A. FINEMAN 2290 First National Building Detroit, Michigan 48226 (313) 256-7722 Dated: March 13, 1985 26a STATE OF MICHIGAN DEPARTMENT OF NATURAL RESOURCES AIR POLLUTION CONTROL COMMISSION SIP No. 1-1985 In the matter of administrative proceedings against ForD MOTOR COMPANY, a corporation organized under the laws of the State of Delaware and doing business at 151 Lafayette, City of Mt. Clemens, County of Maconib, State of Michigan. STIPULATION FOR ENTRY OF CONSENT ORDER AND FINAL ORDER This proceeding resulted from allegations by the staff of the Air Quality Division of the Department of Nat- ural Resources (hereinafter referred to as the “Staff’’). The Staff alleges that Ford Motor Company, a Delaware corporation (hereinafter referred to as the “Company”), located at 151 Lafayette, City of Mt, Clemens, County of Macomb, State of Michigan, is emitting volatile or- ganic compounds (VOCs) from its Mt. Clemens vinyl Plant (hereinafter the ‘“Plant”) which are in excess of allowable limits as established by Administrative Code 1980 AACS, R. 336.1610 and Stipulation for Entry of Consent Order and Final Order No. 24-1982. The Com- pany and the Staff agree to the termination of this pro- ceeding by entry of a Final Order by consent. The Company and the Staff agree as follows: 1. The Company admits that the Chief of the Air Quality Division of the Department of Natural Resources eh nna I aD eee ote nat B08 27a is authorized by resolution of the Air, Pollution Control Commission (hereinafter ‘“Commission’”) adopted June 28, 1977, as agent of the Commission to enter into this Final Order by consent. 2. The Company stipulates that the Chief of the Air Quality Division of the Department of Natural Resources is charged with the investigation and enforcement of all orders, regulations, rules, standards and statutes of the State of Michigan concerning the emission and control of air contaminants. 3. The Company stipulates that the termination of this matter by a Final Order to be entered as a Consent Order is proper and acceptable. 4. The Company and the Staff agree to the following findings: (a) R 336.1610 prohibits emission of VOC from the coating of vinyl from any existing coating line in excess of equivalent emission rates as shown in Table 63. (b) Table 63, contained within R 336.1610, provides that after December 31, 1982, the allowable emission rate for the coating of vinyl is 4.5 pounds of VOC per gallon of coating (minus water) as applied (the “Vinyl Limit”). 5. In adopting the Vinyl Limit, which was recom- mended by the Staff, the Commission believed that they were imposing a requirement which was technologically and economically feasible; that is, requirement that was achievable through the use of reasonably available control technology. 6. Based on the Staff’s review of technical and eco- nomic data for Coaters 7 and 8 and upon the Commis- sion’s hearing of testimony from the Staff and the Com- pany, the Commission finds that for Coaters 7 and 8, 28a the Vinyl Limit was (and is) not achievable through the use of reasonably available control technology. 7. Based upon the Staff’s review of all technical and economic data, and upon the hearing of testimony from the Staff and the Company, the Commission finds that the emission control program set forth and agreed to below does represent emission limits which are achievable through the use of reasonably available control tech- nology. 8. The Company and the Staff agree that the signing of this Stipulation is for settlement purposes only and does not constitute an admission by the Company that the law has been violated. Both Staff and the Company agree that the VOC emissions from the vinyl coating op- erations should be abated in accordance with the follow- ing schedule: (a) With the effective date of this Order and until November 30, 1985, the VOC emissions from each of the Vinyl Coaters 1, 5 and 10 shall not exceed 84 pounds per gallon of solids applied, based on a 15-day averaging period, nor exceed 117 pounds per gallon of solids applied, based on a 24-hour averaging period. (b) With the effective date of this Order, the VOC emissions from Vinyl Coater 7 shall not exceed 46 pounds per gallon of solids applied, based on a 15-day averaging period, nor exceed 55 pounds per gallon of solids applied, based on a 24-hour averaging period. (c) With the effective date of this Order, the VOC emissions from Vinyl Coater 8 shall not exceed 47 pounds per gallon of solids applied, based on a 15-day averaging period, nor exceed 51 pounds per gallon of solids applied, based on a 24-hour averaging period. ee ee ee ne oN (d) (e) (f) (g) (h) 29a With the effective date of this Order, the VOC emissions from the cast line shall not exceed 9.0 pounds per gallon of solids applied, based on a 15-day averaging period, nor exceed 11.0 pounds per gallon of solids applied, based on a 24-hour averaging period. By June 30, 1985, the Company shall perma- nently discontinue operation of Vinyl Coaters 1 and 5 and shall not resume operation of such vinyl coaters unless an approved Permit to In- stall is issued by the Commission. By November 30, 1985, the Company shall per- manently discontinue operation of Vinyl Coater 10 and shall not resume operation of such coater unless an approved Permit to Install is issued by the Commission. Beginning January 1, 1986, the total annual VOC emissions from all of the vinyl coaters at the Plant shall not exceed 440 tons. The Company shall take all steps necessary to assure continuous compliance with the VOC emission limitations specified in paragraphs 8 (a) through 8(f), above. These steps shall in- clude, but are not limited to, production cur- tailments and the utilization of Vinyl Coaters 7, 8 and 11 to the greatest extent possible. (i) With the effective date of this Order, the Com- pany shall submit a report to the Staff every three (3) months demonstrating compliance with the emission limits of this Order in a format acceptable to the Staff. These reports shall also provide documentation of the quantities and volatile organic compound content of coatings used on each coater and shall be submitted within 30 days following the end of the calendar quar- ter. 30a (j) With the effective date of this Order, the Com- pany shall permanently discontinue operation of Vinyl Coaters 2, 3 and 9 and shall not re- sume operation unless an approved Permit to Install is issued by the Commission. 9. The Company and the Chief of the Air Quality Di- vision of the Department of Natural Resources agree that this Consent Order, the supporting data, and all necessary data that may be requested by the U.S. En- vironmental Protection Agency which is available to the Staff or provided by the Company shall be transmitted to the U.S. Environmental Protection Agency for ap- proval as a revision to the Michigan State Implementa- tion Plan. 10. Nothing contained herein shall be considered a waiver of any claim or defense asserted by the Company in United States of America vs. Ford Motor Company, United States District Court Civil Action No. 84CV4459 DT (ED MICH, SD). 11. The Company and the Commission agree that this Consent Order shall rescind and supersede Consent Order No. 24-1982. 12. The Staff and the Company do not regard this abatement program as a variance subject to the 12- month limitation specified in Section 22 of the Air Pollu- tion Act, being MCLA 336.32. Approval of this abate- ment program is not a major state action for purposes of further environmental review pursuant to Executive Order 1974-4. 13. Staff and the Company both acknowledge that a public hearing on this abatement program was held on January 15, 1985. Both Staff and the Company consent to enforcement of this Stipulation and Final Order in the same manner and by the same procedures for all final orders entered pursuant to Section 16 of 1972 PA 257, OREN ADR BO WP 3la MCLA 336.26; MSA 14.58(16), including enforcement pursuant to 1970 PA 127, MCLA 691.1201 et.seq.; MSA 14.528 (201) et.seq. Approved as to Form and Content: /s/ [Illegible] /s/ Norman W. Bernstein ForpD MoToR COMPANY NORMAN W. BERNSTEIN Associate Counsel ForD Motor COMPANY Dated: Jan. 29, 1985 Dated: Approved as to Content: /s/ Robert P. Miller ROBERT P. MILLER Chief AIR QUALITY DIVISION DEPARTMENT OF NATURAL RESOURCES Dated: 2/1/85 Approved as to Form: /s/ Stewart H. Freeman STEWART H. i"REEMAN Assistant Attorney Generai DEPARTMENT OF ATTORNEY GENERAL Dated: February 1, 1985 32a FINAL ORDER This Commission having had opportunity to review the above stated Stipulation for Entry of Consent Order, and this Commission having authorized the Chief of the Air Quality Division of the Department of Natural Resources as agent of the Commission to enter into consent orders, IT IS ORDERED that this Consent Order is approved and shall be entered in the record of this Commission as a Final Order. AIR POLLUTION CONTROL COMMISSION By: /s/ Robert Miller ROBERT P. MILLER Chief Air Quality Division Department of Natural Resources Dated: 2/1/85 as a ae rN 33a MICHIGAN DEPARTMENT OF NATURAL RESOURCES AIR QUALITY DIVISION STAFF ACTIVITY REPORT January 15,-1985 Respondent Ford Motor Company Mount Clemens Viny! Plant Mount Clemens, Michigan Purpose Commission consideration of a new Consent Order and Final Order to resolve the ongoing violations of Consent Order Sip No. 24-1982 and Michigan Air Pollution Con- trol Commission (MAPCC) Rule 610 by providing for the control of volatile organic compound (VOC) emis- sions from the plant’s vinyl coating operations. If ap- proved by the Commission the Order will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP). Description of Source The plant operates coating lines for the coating of vinyl fabrics to be used in automobile seats, headliners and other automotive applications. A wide variety of fabrics and coatings are used. The coating lines at the plant are designated as lines 1, 2, 3, 5, 7, 8, 9, 10, 11, and the cast line. Lines 1, 2, 3, 5, 9, and 10 are currently uncontrolled. Lines (coaters) 7 and 8 are controlled by liquid based nitrogen condensation processes which recover solvents. The cast line is controlled by a thermal incinerator. Coater No. 11 was installed in 1977 and is also con- trolled by an afterburner. 34a Applicable Rule For vinyl coating operations, Rule 610 limits the emis- sion rate to 4.5 pounds of VOC per gallon of coating (minus water) as applied. Compliance is required with this rule on and after December 31, 1982. History The vinyl plant operated by Ford in Mount Clemens is the only vinyl coating operation in the state subject to the 4.5 pounds per gallon limit. Therefore, the limit was based specifically on a Reasonably Available Control Technology (RACT) evaluation of the Mount Clemens plant using information and data available in the mid to late 1970s. A letter from staff to Ford dated March 5, 1979, however, acknowledged that the 4.5 limit may not represent RACT for this plant and staff expected additional review of the limit. It should be noted that the limit recommended to the states by the EPA for adoption was 3.8 pounds of VOC per gallon of coating as applied, and therefore, the 4.5 limit had to be justified technically to EPA in the 1979 SIP submittal. The 4.5 limit was formally approved by EPA as part of the SIP on May 6, 1980. Staff, iz. review of the company’s complianve program, thoroughly re-evaluated all of the existing vinyl coaters (and cast line) in terms of what is RACT for each coater. After a technical review focusing on the cost and energy problems associated with possible control sys- tems in the coaters, staff concluded that the limit of 4.5 pounds per gallon, as applied, or equivalent, could not be reasonably met by every coater so “Stipulation for Entry of Consent Order and Final Order, SIP No. 24-1982” was approved May 5, 1983. This Order set forth a schedule for the installation of control equipment on coaters 7 and 8. The Order further required a 250 ton reduction of VOC emissions from other uncontrolled coaters by December 31, 1985. Ct a 8) WV IINAD OP YS ALLER AEE Kota FG LATE pA Neon. CPS A cl Oe a Eine Sed MA EY be 35a SIP No. 24-1982 required the company to submit com- pliance status reports to staff each quarter. In late 1983, the company began upgrading their computer program to utilize more detailed information to calculate emission rates. These new quarterly reports indicated that the company exceeded limits set forth by SIP No. 24-1982, specifically for coaters 7 and 8. Negotiations to revise SIP No. 24-1982, between staff and the company began on February 7, 1984. On April 19, 1984 the EPA issued a Notice of Violation to the company for violating MAPCC R336.1610 (part of a federally approved implementation plan). Negotiations between staff and the company and EPA continued through the summer. On September 26, 1984, the United States Justice Depart- ment filed a complaint against the company for violating MAPCC R3836.1610. In turn, on October 16, 1984 the company filed a suit against MAPCC, Michigan Natural Resources Commission and Michigan Department of Nat- ural Resources seeking injunctive relief and civil penalties for violation of Michigan State Implementation Plan R336.1610. Staff and the company continued negotiations and agreed on the major issues as summarized below. This agree- ment forms the basis for the new proposed order. 1. The allowable emission rate for the coating of vinyl of 4.5 pounds of VOC per gallon of coating (minus water), as applied, is not achievable through the use of RACT specifically for coaters 7 and 8. The new limits not to be exceeded which would constitute RACT are: 46 pounds per gallon of solids applied, based on a 15-day averaging period and 55 pounds per gallon of solids applied based on a 24-hour averaging period for coater No. 7; and 47 pounds per gallon of solids applied, based on a 15-day averaging period and 51 pounds per gallon of solids applied based on a 24-hour averaging period for coater 8. 36a - 2. The company will permanently discontinue operation of the uncontrolled vinyl printers as follows: June 30, 1985 for coaters 1 and 5; November 30, 1985 for coater 10; and the effective date of this Order for coaters 2, 3, and 9; unless an approved Permit to Install is issued by the Commission. 3. Total annual VOC emissions from all of the vinyl cuvaters at the company shall not exceed 440 tons by January 1, 1986. 4. The proposed Consent Order also includes record keep- ing and reporting requirements to demonstrate com- pliance with the terms of the Order. Revision to the SIP Because the proposed Order reflects limits that are differ- ent than those in the currently approved Michigan SIP, the order must be submitted to EPA as a revision to the SIP. Such “site-specific’ SIP revisions for existing sources must meet certain criteria in order to be ap- provable. Those criteria include: 1. Documentation of why the revised emission limits reflect RACT. 2. Documentation of why the compliance dates are as “expeditiously as practicable”. 3. An smalysis based on modeling which shows that with the revised compliance program contained in the Order, the overall demonstration of attainment in the SIP will continue to provide for attainment by the dead- line mandated by the Clean Air Act (in this case, December 31, 1987). The information for the above three areas will be docu- mented in detail as part of a separate report which will accompany the Order as part of the formal SIP sub- mittal to EPA. To summarize, the company has provided staff with information for printers Nos. 7 and 8 which ~ te = ne Be 87a indicate that the cost to provide any controls in addition to the liquid based nitrogen condensation systems which are currently utilized would be disproportionate to the amount of VOC emission reductions to be gained from such additional controls. Regarding printers 1 and 5, and 10, which will discontinue operation by June 30, 1985, and November 30, 1985, respectively, documentation in the SIP submittal will focus on the unreasonableness of in- stalling air pollution controls for such a short duration of time. The plantwide emission limitation included in the order will be made a part of the 1982 ozone SIP for the Detroit urban nonattainment area which will be formally submitted to EPA in early January 1985 and, therefore, will parallel this site-specific SIP revision. Recommendation Staff recommends entry of the attached proposed Consent Order which provides for a schedule for the vinyl coating operation at the Ford Motor Vinyl Plant in Mount Clemens. Submitted by: Ann Peppo December 21, 1984 AP:jh Attachment 38a bee: N. Bernstein S. Kehres D. Schultz D. Voita D. Vonk [FORD LOGO] V. H. Sussman, Director Stationary Source Environmental Control Environmental and Safety Engineering Ford Motor Company One Parklane Boulevard Dearborn, Michigan 48126 January 8, 1985 Mr. Robert P. Miller, Executive Secretary Michigan Air Pollution Control Commission P.O. Box 30028 Lansing, MI 48909 Subject: Ford Mt. Clemens Vinyl Plant—Proposed Con- sent Order Dear Mr. Miller: Pursuant to the Notice of Air Pollution Hearing dated December 10, 1984, the Company hereby submits brief comments on the proposed order. In general, Ford sup- ports and accepts the entry of the Proposed Order (with our recommended corrections) and supports the recom- mendations contained within the Staff Activity Report. In addition, although Ford generally agrees with the con- clusions and recommendations of the staff, some comment, correction and addition is necessary to the staff report. We have also included such information so that the Com- mission may have a more complete picture of the Plant’s emission control efforts. Copies of these comments and 89a information are being forwarded directly to the members of the Commission for their review. Sincerely, /s/ Victor H. Sussman ee: Members, Michigan Air Pollution Control Commission Attachment 9A:FPP195/L 40a January 8, 1985 Attachment I Comments of Ford Motor Company Mt. Clemens Vinyi Plant Proposed Consent Order (Fifth Draft—11/30/84) Ford Motor Company (‘‘Ford’’) files these comments on the proposed Order regarding volatile organic compound emissions from its Mt. Clemens Vinyl Plant, upon which a public hearing is scheduled for January 15, 1985. 1. Paragraph 8(g), p. 4. Substitute “Beginning” for the word “By”, so. as to read: “Beginning January 1, 1986... .” The purpose of this change is to more clearly state the intent of this paragraph that the production lim- iting annual emission cap applies in calendar year, 1986 and thereafter. As now worded, it could be con- strued that the 440 TPY emission level will have been achieved before, or in 1985. 2. Paragraph 10, p. 4. The U.S. District Court Civil Action citation should be corrected to read “84 CV” not “84 CB.” Based on informal contact with MDNR and the Attor- ney General’s Office Staff, it is the Company’s understand- ing that the above two recommended changes are accept- able. Ford respectfully requests that the Michigan Air Pollution Control Commission adopt and enter the pro- posed Order, including the above recommended changes.. 4la January 8, 1985 Attachment IT Comments and Supplemental Information by Ford Motor Company Mt. Clemens Vinyl Plant with Respect to the Staff Activity Report dated December 24, 1984 by the Air Quality Division, Michigan Department of Natural Resources Ford supports the recommendations contained within the Staff Activity Report. In addition, although Ford generally agrees with the conclusions and recormmenda- tions of the staff, some comment, correction and addition is necessary to the Staff Report. There are four basic points that need to be made. First, Ford has already reduced VOC emissions by more than 80% from the plant. Second, we do not agree that there are any violations. Third, we are submitting herewith additional data in sup- port of the findings in paragraphs 6 and 7 of the pro- posed Order. Fourth, entry of the proposed Order is im- portant to minimizing the loss of jobs in the State of Michigan, while at the same time assuring that the facil- ity will surpass all air pollution control objectives. We will address each of these points below. 1. By a combination of installation of control equip- ment, process and scheduling changes, retirement of cer- tain printers and reduction of production, costing in ex- cess of $6.65 million (set forth in more detail below), emissions of volatile organic compounds from the Mt. Clemens Vinyl Plant have been reduced by over 80% from 1977 to the present (from more than 3700 tons per year in 1977 to less than 700 tons in 1984 from vinyl coating operations). Pursuant to the terms of the proposed Consent Order, after January 1, 1986, emissions will be 88% below 1977 levels. This reduction exceeds the goals for reduc- tions recommended by the USEPA for this industry. 42a 2. Ford Motor Company does not agree that any vio- lation of a valid existing law or regulation has been established (as stated under “Purpose,” Staff Activity Report). To the extent that compliance is measured by a rate of emission calculation using the so-called “hypo- thetical gallon” method, the regulation and such calcula- tions are invalid. The plain language of existing Rule 610 requires only a reduction in the rate of emissions based on coatings “as applied.” It has been, and is, our view that Ford has achieved compliance, even with the rate limitations set forth in the Rule, on a plantwide annual basis using the plain language of the Rule. The allegation that Ford may be in violation of the original Rule 610 is apparently based on a “hypothetical gallon” method of calculating emission rate. The “hypo- thetical rallon” method is not set out in the Rule, and if used, the rate limitations in the Rule are beyond reason- ably available control technology (RACT) at least as applied to printers 7 and 8. Nor does Ford Motor Company agree that noncompli- ance has been established with regard to the prior Con- sent Order covering vinyl coating operations at the Mt. Clemens Plant. To the extent that a different rate type calculation was included, the limits set in the original Order assumed a 90% capture efficiency for control equip- ment—an efficiency which is not achievable as RACT either (see pages 6-8 for these comments). 8. In an effort to assist the Commission, and to sup- plement the information set, forth in the Staff Activity Report, the following information is provided in support of paragraphs 6 and 7 of the proposed Consent Order (also refer to Staff Activity Report, p. 3) which addresses the establishment of a site-specific RACT VOC emission control program for Printer Nos. 7 and 8. A brief review of the nature of Mt. Clemens Vinyl Plant (“the Plant”) production and development of vinyl coating VOC limits is instructive. The Plant uniquely ‘ a ME ttt tm Ate silt pinn illly at Ailiaie 43a manufactures coated sheet vinyl for 100% automotive applications, unlike competitors with diversified products such as wallpapers, furniture covers, etc. Ford’s auto- motive vinyls have more demanding product quality speci- fications than ordinary commercial vinyl due to the need to withstand exposure to harsh weather conditions and still retain an attractive appearance. These requirements limit the type of coatings that can be used. The plant uses over 500 different coating formulas (all solvent- based with relatively low solids content) complicating re- conversion just on sheer numbers. Following the 1977 Clean Air Act amendments, EPA provided “guidance” to states through Control Technology Guidelines (“CTG’s”) for development of VOC emission limits. These CTG’s were hastily prepared, often by out- side contractors, were not subjected to any formal public comment, and often contained inaccurate information. The USEPA, during development of its CTG for vinyl coating, never visited nor requested information from Ford with respect to its unique vinyl plant circumstances. Based on data from other vinyl coaters and a certain set of assumptions, it suggested that a limit of 3.8 pounds of VOC per gallon of coating (as applied) represented RACT. The USEPA assumptions were that (1) 90% of fugitive solvent losses in the plant could be captured—the so-called “capture efficiency,” and (2) 90% of the solvent captured could be recovered or controlled. The combined effect of these two asumptions was that 81% overall emis- sion control, EPA assumed, represented RACT [(0.90 x 0.90) x 100 = 81%]. When Michigan adopted Rule 610, based on data Ford submitted related to its coatings, a limit of 4.5 pounds of VOC per gallon was established. Subsequent interpretation of that value and the differ- ence of opinion on the extent of emission control required resulted in the Consent Order entered into in 1982. Original Consent Order. Confronted with the necessity to try to meet this new regulatory requirement, the Plant 44a had limited options—it could develop higher solids coat- ings, convert to waterbased coatings, or install control hardware. Due to the nature of the vinyl coating process (roto- gravure), coatings with high solids content reflecting 4.5 pounds VOC per gallon coating are not usable.. The Plant had done considerable developmental work on waterbased coatings, which at that time, were not commercially avail- able, and concluded that none could be developed in the time framework allowed that would meet both the VOC emission limits and Ford’s stringent product quality de- mands. Further, the Plant did not have the flexibility as did others with varied products (like vinyl wall cover- _ ings) to convert some printers to waterbased coatings and average the emissions from the waterbased and solvent based coatings. Accordingly, the control hardware option was then selected and, reflecting the economic hardship imposed by an across-the-board application to all printers, a VOC control “bubble” was proposed to and approved by the Commission (SIP No. 24-1982) on November 30, 1982. The major provisions of that order are as follows: * By December 31, 1982—for controlled printers 7 and 8—allowable emissions of 13.5 lbs. VOC/gal. solids applied, 24-hour average (to be adjusted following new control equipment performance test- ing). This value was based upon an expected 81% emission reduction from the 1977 plantwide aver- age emission rate. * By December 31, 1982—for uncontrolled vinyl coat- ers 1, 2, 3, 5, 9 and 10—allowable emissions of 76 Ibs. VOC/gal. solids applied (15-day moving aver- age), 120 lbs. VOC/gal. solids applied (max. 24- hour average). Provide additional 250 ton-per-year emission reduc- tion after December 31, 1985 through use of alter- nate coatings or installation of hardware. 45a * Submit quarterly reports of emission data. The Company met every stipulated commitment date in the Order: * Installation of innovative control technology equip- ment on printers 7 and 8 was completed before 12/31/82, at a cost of approximately $3 million. However, as explained below, the required VOC emission rate of 13.5 pounds per gallon solids ap- plied was not achieved. The allowed rates for uncontrolled printers as initially met. With time, the 76 pounds VOC per gallon solids (15-day average) increased slightly due to the introduction of a process change and refinement of the data base used to calculate plant- wide VOC rates. * A VOC emission reduction in excess of the 250-ton reduction prescribed in the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0295%3A1. Public record. Not legal advice.