# Petition for Writ of Certiorari — Alcan Foil Products Division of Alcan Aluminum Corp. v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0908%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 917

## Text

\ Supreme Court, VU.»
Vi. FILE D

|

IN THE

Supreme Court of the United States

October Term, 1989

ALCAN FOIL PRODUCTS DIVISION OF
ALCAN ALUMINUM CORPORATION,
Petitioner,

vs.

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI
To The United States Court of Appeals
For The Sixth Circuit

LAWRENCE A. SALIBRA, II
Counsel of Record

100 Erieview Plaza, 29th Floor
Cleveland, Ohio 44114
(216) 523-6918
Counsel for Petitioner
Alcan Foii Products Division
of Alcan Aluminum Corporation

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED

In 1982, the State of Kentucky, acting through the
Jefferson County Ajir Pollution Control District,
submitted a proposed revision to its Standard
Implementation Plan that would permit regulation of air
pollution by means of a generic bubble. That proposal
has not been approved or disapproved by the U.S. EPA.
After Alcan Aluminum Corporation purchased the
facility that is the subject of this litigation, it learned of
the EPA’s failure to act on the proposed revision. Since
some form of bubble was necessary to make the plant
economically viable, Alcan sought to work out a source
specific revision to the Jefferson County Plan that
incorporated a bubble. Instead of approving or rejecting
this proposed revision in the required four month period,
the EPA filed this lawsuit seeking penalties for the
failure of Alcan to comply with the original Plan. The
questions presented are:

1. Where the EPA has failed to act on a revision to
a state plan within four months, as required by the Clean
Air Act, may the government bring an action for civil
penalties against a company that is in compliance with
the revised plan?

2. Whether the decision below undermines the
ability of the states to make ongoing policy choices as to
air pollution control measures, and creates disincentives
for even-handed administration of the Act.

3. Whether the decision below is contrary to the
language and intent of Congress and the decisions of this
Court and other circuit courts.

ii.
RULE 29.1 STATEMENT

Petitioner is a wholly owned subsidiary of Alcan
Aluminum Limited, a Canadian gorporation with
hundreds of subsidiaries and affiliates worldwide.
Petitioner is an Ohio corporation whose non-wholly
owned subsidiaries and affiliates are listed below:

LIST OF SUBSIDIARIES
AND AFFILIATES

Alcan Toyo America, Inc.
Advanced Forming Technologies
Alanx Products Company

Alcan Sumitomo Electric, Inc.
Lanxide Development Company
Lanxide Technology Company
Logan Aluminum, Inc.

Ramtron International Corporation
Superconductor Technologies, Inc.
The Aluminum Railcar Company
Polyfiltronics N.A., Inc.

Sytec Enclosures Company

iii.

TABLE OF CONTENTS

Questions Presented................ 0.0.00 ceueee i
ee ink hiv sawsneancndsawaelues li
ete ha ku ee scnwatecadtes 2
ras ibn bb S6e od 4 o% dy 6 eho oo oes 3
Statutes and Regulations Involved............... 4
Statement of the Case...................0c0000 5
Reasons for Granting Writ...................... 12
This Case Has Facts That Should Be Directly
Considered By This Court .................... 12
I a a's wb sao «ko bbw 0b vcecacce 15
Appendix:
Opinion of the United States Court of Appeals for
the Sixth Circuit (November 21, 1989) ........ Al
Memorandum Opinion of the United States
District Court (March 15, 1988).............. A23

Order of the United States District Court,
Western District of Kentucky (March 15, 1988) A31

Order of the United States District Court,
Western District of Kentucky (March 15, 1988) A32

Memorandum Opinion of United States District
Court, Western District of Kentucky
ST SO OO, ee chu deen voesase A34

Order of the United States District Court,
Western District of Kentucky (September 15,
ITER E CG LEN ewe basen es kv ikeccsdscveccs A43

iv.

Motion Filed in the United States Court of
Appeals for the Sixth Circuit for Stay of
Mandate Pending Petition for Writ of Certiorari
CIE E01 Die as cae Kaas cen ccekncecnes A5dl

TABLE OF AUTHORITIES

—}$._—«s

Cases

Air Pollution Control District of Jefferson County,
Kentucky v. U.S. EPA, No. C-86-0519-L-B (W.D.

Peer erat eeerrrereee tee rte tee 8
American Cyanamid Co. v. EPA, 810 F.2d 493 (5th
SP, I Aw Wik ok can ed Ok Roe ee ORO ae 5,9

General Motors Corporation v. United States of
America, No. 89-369, cert. granted December 4,

1 REPRE aries rece ena merges, crane wget a a" 5,12,13,14
Train v. National Resources Defense Council, 421
[fF fo Serr rer Serer rrr eer. Te 6,13
Statute
96 UGC. mow. ERG) (EGER. nw cc cee cece wees 3
National Ambient Air Quality Standards, 42 U.S.C.
i ee as she Wane caw a kee eee at 6
State Implementation Plans, 42 U.S.C. sec. 7410 (a)
Re en Oa ae eee re Ter 4,7
Rule

ee es ce wcn ek ke ke wena 9,10

No.

IN THE

Supreme Court of the United States

October Term, 1989

ALCAN FOIL PRODUCTS DIVISION OF
ALCAN ALUMINUM CORPORATION,
Petitioner,

VS.

UNITED STATES OF AMERICA,
Respondent.

- PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit

Petitioner Alcan Aluminum Corporation prays that a
writ of certiorari issue to review the opinion and

judgment of the United States Court of Appeals for the
Sixth Circuit in this case.

2

OPINION BELOW

The opinion of the Court of Appeals is reported at
1889 F.2d 1513; 1989 U.S. App. LEXIS 17373, and is
reprinted in the Appendix to this petition at Al.

3
JURISDICTION

The decision below was rendered on November 21,
1989. The jurisdiction of this Court is invoked pursuant
to 28 U.S.C. sec. 1254(1) (1982).

4
STATUTES AND REGULATIONS INVOLVED

This case involves a Clean Air Act enforcement
action by the Environmental Protection Agency (EPA)
against Alcan Feil Products, Division of Alcan
Aluminum Corporation (‘‘Alcan’’). Under the Act, EPA is
required to approve or disapprove within four months
revisions to State Implementation Plans (SIPs). 42
U.S.C. sec. 7410(a) (2) (3) (1982). The principal issue in
this case is whether EPA’s failure to so act prevents it
from enforcing the prior state plan.

5

STATEMENT OF THE CASE

The questions presented in this case _ raise
fundamental issues concerning the appropriate division
of authority between the federal government and the
states in the establishment and implementation of the
State Implementation Plans (‘‘SIP’’) under the Clean Air
Act (‘‘Act”’). The Act requires the EPA to act promptly,
within four months, either to approve or disapprove a
SIP revision. The EPA’s refusal to act in a timely
manner on a SIP revision by a state and instead attempt
to enforce the old SIP, unlawfully interferes with a
state’s right to select the regulatory alternative that it
will use to attain federal standards. In addition, this tactic
by the EPA subjects many companies which are making
a good faith effort to comply with the Act to the
potential of large fines and large and unnecessary
litigation expenses. Because of this infringement of state
prerogatives and the ‘“‘contumacious”’ nature of the EPA
conduct, the Fifth Circuit held in a similar case that the
EPA may not collect penalties under the old SIP.
American Cyanamid Co. v. EPA, 810 F.2d 493 (5th Cir.
1987).

Expressly disagreeing with the Fifth Circuit's
approach, in General Motors Corporation v. United
States of America, No. 89-369 cert. granted December 4,
1989, the First Circuit acknowledged that Congress did
not intend the state’s primary role under the Act be
subverted by EPA inaction, but held that dismissal was
too drastic a remedy. Without reference to legal
authority or factual distinction, the First Circuit
returned the case to the District Court for a
determination as to what penalties, if any, would be
appropriate.

6

In the instant case, the Sixth Circuit expressly
disagreed with both the Fifth Circuit and the First
Circuit. Although it agreed that dismissal was too
drastic a remedy and that the case should be returned to
the District Court for a hearing on the appropriate
penalties, it recognized the potential injury to a company
acting in good faith and complying with the proposed
SIP revision by the continuation of the litigation.
Therefore, it shifted the burden of proof to the EPA to
show its delay was reasonable before any hearing on the
appropriate penalties could take place. This decision
below now creates two conflicts among the circuits and
raises important recurring issues concerning the
enforcement of the Clean Air Act.

A. Statutory Background

The Act was designed to create a partnership
between the states and the federal government with
respect to the regulation of air pollution. The basic
division in the Act is straightforward. The federal
government acting through the EPA has_ the
responsibility of establishing national air quality goals,
called the National Ambient Air Quality Standards. 42
U.S.C. sec. 7409 (1982).

This Court has affirmed that the Act places primary
responsibility on the states to select the options to be
used to meet the national standards and so long as those
choices are consistent with the basic statutory
requirements the EPA must approve the SIP. Train v.
National Resources Defense Council, 421 U.S. 60, 79
(1975).

Congress anticipated that the design and
administration of the appropriate SIPs would be an
ongoing process for the states. Thus, the statute

7

provides for revisions to be made to the SIP from time
to time as the states deem appropriate. The EPA is
required to approve or disapprove these revisions within
four months. 42 U.S.C. sec. 7410{a)(2), (3). In this case,
the EPA has never formally ruled on the Jefferson
County generic SIP revision (‘SIP I’’) that has been
pending for nearly a decade. It took over three years to
disapprove the source specific SIP revision (‘SIP II”)
that Alcan and the state submitted in an attempt to deal
with the uncertainty created by the EPA’s failure to act
on SJP I. When the EPA disapproved SIP II it relied for
its legal authority on regulations that were not in effect
during the four month period during which it was
obligated to act. The result of these actions has been to
leave the State of Kentucky, Petitioner Alcan and the
public in a state of uncertainty. The impact of this
uncertainty has not only disrupted the rational business
planning process of Alcan, but it also affected numerous
other segments of the public many of whom expressed
their concerns directly to the Sixth Circuit through the
Amicus mechanism.

B. The Kentucky SIP

Alcan owns and operates a laminating facility in
Louisville, Kentucky. The laminating process is the
source of volatile organic compounds (‘‘VOC’’) emissions.
The plant is an independent economic unit and is not
part of a process which leads to a final product. All of
the facility’s products are sold to third parties.

The Kentucky SIP which was in force with respect
to the plant required point source control. Point source
control means was that each coating line had to comply
with an emission limitation, regardless of the overall
emissions from the total facility. This made it
impossible for this facility and others to operate

8

economically because of the vast capital needed to obtain
point source control. Moreover, the EPA had recognized
in their bubble policy proposal that the real issue was
not what each line discharged, but what the entire plant
discharged as a unit. For example, if the tolerated level
of emission was two units of VOC’s, and there were two
lines, point source regulated them at 1 unit each. But, if
one line operated with a non VOC coating, or did not
operate, logically one should be allowed to operate the
other line at 2 units to meet the required limit. Point
source rules did not permit this flexibility, so the EPA
proposed a “‘bubble policy’’ which treated the entire
plant rather than each stack, as an emission source.

In 1982 the plant was owned by Atlantic Richfield
Company (‘‘ARCO”’), the third party defendant in this
case. At the same time, the State of Kentucky, acting
through the Jefferson County Air Pollution Control
District (““JCAPCD”’) proposed SIP I which provided an
option to comply with the emission standards using a
bubble. ARCO operated the plant in compliance with SIP
I, which was never approved or disapproved by the EPA,
and is still in limbo today. In 1985 Alcan acquired the
plant from ARCO. In the representations concerning
environmental compliance, ARCO made no comment
concerning the plant’s non-compliance with the
Kentucky SIP, apparently relying on JCAPCD's
assurances that it was in compliance.

Sometime after Alcan acquired the plant, it learned
of the dispute between the state and the EPA over SIP
I. It recognized that the dispute was long-standing and
in 1986 it matured into a lawsuit by the Jefferson
County Air Pollution Control District (“JCAPCD’’)
against the EPA for failure to act on SIP I.' Alcan had a

' Air Pollution Control District of Jefferson County, Kentucky v. U. S.
EPA, No. C-86-0519-L-B (W.D. Ky.).

9

serious business problem. The plant was clearly not
economic confronted with point source compliance.’ For
its own good and that of the numerous employees, a
rapid determination as to the plant’s fate was essential.
Therefore, Alcan, after informing the JCAPCD,
commenced a series of meetings with the EPA to seek a
source specific SIP revision. Those meetings, which
involved a direct meeting with the Director of the Air
Pollution program at EPA headquarters in Washington,
D.C., continue to this day and resulted in two SIP
revisions by JCAPCD: SIP II which is the subject of
this litigation and SIP III which is still pending and has
been pending for over four months.

EPA was directly involved in the formulation of both
SIP II and III. Nonetheless on July 14, 1986, four
months after SIP II had been submitted, the EPA, without
taking any action on SIP II, served notice on the plant
of non-compliance with the original SIP. On July 15,
1987, the EPA filed this enforcement action, more than
one and a half years after SIP II was filed and while it
was still pending. Alcan promptly moved to dismiss the
case relying on American Cyanamid, supra. Rather than
replying to Alcan’s motion, the EPA asked the District
Court to dismiss Alcan’s motion without prejudice
pursuant to Rule 56(f), stating that it believed that
Alcan may not be in compliance with the SIP II, but
required discovery to make the determination. Alcan
responded with an affidavit pointing to the fact that the
EPA motion should be denied since it had, in fact, had in
its possession the daily emissions reports which
were available to the JCAPCD and in addition had a

? Based on 1989 profits for the facility, point source compliance would
require capital expenditures in excess of 3 times total net profits
while operating expenditures would absorb an amount equal to an
additional 25% of 1989 net profits.

10

comprehensive engineering study covering all the
relevant data which had been prepared for them in
connection with the submission of SIP II.* The District
Court denied the government’s motion for Rule 56(f)
relief and granted Alcan’s motion to dismiss, concluding
that this case should be dismissed but the EPA could
seek enforcement after SIP II was rejected. The EPA
filed a motion for reconsideration which was denied, but
contrary to the later conclusion of the Sixth Circuit, the
District Court held that the EPA could seek enforcement
after the SIP was disapproved and that under the proper
circumstances its penalties could be retroactive. The
EPA appealed to the Sixth Circuit.

The Sixth Circuit sustained the District Court in
part and reversed in part. The Sixth Circuit sustained
the District Court’s holding that the Act required the
EPA to act on SIP revisions in four months, but
concluded that dismissal was too severe a consequence,
since the EPA would often miss the four month deadline.
Like the First Circuit, the Sixth Circuit acknowledged
that Alcan had the equities on its side in the case, thus
it adopted in part the reasoning of the First Circuit in
returning the case to the District Court. However, the
Sixth Circuit apparently responded to Alcan’s argument
that continued litigation, given the inherent uncertainty

>The Sixth Circuit improperly concluded that this case needed to be
returned to the District Court for a determination as to whether
Alcan was in compliance with SIP II. In fact, the District Court did
determine that EPA had the data available to them to evaluate
whether Alcan was or was not in compliance with the SIP II and, if
appropriate, to rebut the JCAPCD affidavit of compliance. The EPA
dii not offer any affidavit in its motion for reconsideration. Thus, the
Alcan affidavit stands unrebutted and the District Court's explicit
refusal to grant Rule 56(f) relief, which was not appealed, entitles
Alcan to rely on the conclusive determination of that fact issue by
the District Court.

11

and costs of the legal system, would result in most
companies simply shutting down a marginal facility and
that would result to a large degree in the states losing
their primary role under the Act to make choices among
options because many options would no longer be
available. The Sixth Circuit solution to reduce the
litigation risk was to shift the burden to the EPA to
show that its delay was reasonable before it could seek
retroactive penalties.‘

‘In fact, the Sixth Circuit went so far as almost determining that the
EPA's delay was unreasonable since it said that it would be
unreasonable if Alcan could demonstrate that the legal bases for
disapproving SIP II were not in existence at the time the EPA was
compelled to act. The Sixth Circuit had before it the Federal Register
Notice of Disapproval of SIP II which expiicitly demonstrated that
to be the fact.

12

REASONS FOR GRANTING WRIT

This Case Has Facts That Should Be Directly
Considered By This Court.

Alcan is mindful of the fact that this Court has
granted a writ of certiorari in General Motors, supra,
which addresses the same legal issues that exist in this
case. Alcan is also mindful of the fact that participation
in that case as an Amicus Curiae is one means by which
Alcan could inform this Court of its case. Nonetheless,
Alcan believes this Court’s appreciation of the issues
presented in the General Motors case will be greatly
enhanced by the consideration of this case in conjunction
with that of General Motors.

Although the legal issues in General Motors and this
case are the same, the factual circumstances are
dramatically different. In General Motors the failure of
the EPA to act promptly had the potential impact of
increased costs for the continuation of an obsolete paint
line and the potential to discourage the use of some other
more environmentally attractive coating alternative. This
case, by contrast, involves the continued viability of an
entire operation with the attendant consequences to the
employees aiid economic disruption to the State. In fact,
at the Sixth Circuit a wide range of the interested public,
which included four unions, The Louisville Area Chamber
of Commerce, The City of Louisville and_ the
Commonwealth of Kentucky expressed their views as to
how the EPA’s conduct adversely affected them. Alcan
believes that the widespread impact on the public of the
Alcan facts could not be effectively communicated to the
Court through an amicus participation by Alcan.

—

13

Second, an evaluation of the propriety of EPA
conduct is more clearly understood in the Alcan case.
Unlike the situation in General Motors, the EPA was
actively involved in the preparation of SIP II and SIP
III prior to and during its enforcement activities. The
Sixth Circuit opinion simply does not describe the
comprehensive involvement of the EPA in the
development of both SIP II and SIP III. Moreover,
similar facts do not appear in General Motors. It is only
by understanding the details of these activities that this
Court can fashion enforcement standards under the Act
that would be fair to all concerned.

Third, this case arises out of a clear and continuing
dispute between the state and federal government as to
who will exercise primary responsibility under the Act.
In Train, supra, this Court acknowledged the state’s
primary role and the EPA’s supervisory role under the
Act. This case, more than the General Motors case,
illustrates that Train has done little to practically define
the roles of the respective governments under the Act
and that the conflict between the state and federal
government is not something that happens on rare
occasions, but is constant and continuing. This case also
illustrates how the well-intentioned company, who wishes
to do its utmost to comply, is continually subject to
inconsistent signals as to what constitutes compliance
and regardless of the effort expended, cannot extract
itself from the conflict between the EPA and the
states.

Finally, unlike General Motors, the facts of this case
illustrate how, as a practical matter, the states are not
only deprived of a primary role under the Act, but can be
turned into a rubber stamp of decisions made directly by
the EPA. The facts of Alcan’s progression from SIP I to
SIP III illustrate that by the time events had progressed

14

to SIP III, the potential consequences of enforcement
actions and the need for some level of certainty in the
business decision-making process had virtually
eliminated the JCAPCD from its primary role. The facts
will demonstrate that JCAPCD had to concede that
Alcan should simply by-pass it and go directly to the
EPA to work out a SIP, and come back to them for
approval of what the EPA had approved. The JCAPCD
recognized that regardless of the theoretical allocations
of responsibility recognized by this Court, it was
powerless under these circumstances to exercise its role.

This case illustrates more dramatically than General
Motors the important need to fashion enforcement
standards under the Act which are sensitive to the
real economic and business decisions that managers
acting with the best of intentions must make. This case
certainly presents the same issues of conflict between the
Circuits and federalism as presented by General
Motors. This case’s very existence confirms the
recurring nature of the problem. However, unlike
General Motors, this case presents these issues in the
context of a factual setting that illustrates the impact of
this conflict on the very public whose interests Congress
was considering when it decided on the allocation of
responsibility. It also demonstrates the importance of
carefully crafting an enforcement mechanism with due
regard to the potential practical impact on the continued
existence of options from which a state may choose. The
Sixth Circuit clearly recognized this issue when it
refused to accept the solution proposed by the First
Circuit in General Motors, supra. However, Alcan
believes and will argue to this Court that the Sixth
Circuit’s solution, although it may resolve this case, does
not from a policy perspective constitute a long term
solution for similar cases which do not have certain facts
unique to this case.

15

CONCLUSION

For the foregoing reasons Alcan _ respectfully
requests that this Court issue a writ of certiorari to the
Sixth Circuit in this case.

Respectfully submitted,

LAWRENCE A. SALIBRA, II
Counsel of Record

100 Erieview Plaza, 29th Floor
Cleveland, Ohio 44114
(216) 523-6918

Attorney for Alcan Foil
Products, Division of Alcan
Aluminum Corporation

Al

APPENDIX

Opinion of the United States Court
of Appeals for the Sixth Circuit

(Decided and Filed November 21, 1989)
No. 88-6300

United States Court of Appeals

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

Vv.

ALCAN FOIL PRODUCTS DIVISION
OF ALCAN ALUMINUM CORPORATION,
Defendant and Third-Party
Plaintiff-Appellee,

ATLANTIC RICHFIELD COMPANY,
Third-Party Defendant.

On APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY.

[889 F.2d 1513; 1989 U.S.
App. LEXIS 17373]

A2

Before: KRUPANSKY and RyYAN, Circuit Judges, and
LIVELY, Senior Circuit Judge.

LIVELY, Senior Circuit Judge, delivered the opinion of
the court in which KRUPANSKY, Circuit Judge, joined.
RYAN, Circuit Judge delivered a separate concurring
opinion.

LIVELY, Senior Circuit Judge. This case arose under
the Clean Air Act as amended, 42 U.S.C. $7401 et seq.
(the Act). The government brought this enforcement
action in the district court pursuant to section 113(a) of
the Act, 42 U.S.C. §7413(a). It alleged that Alcan’s
Louisville, Kentucky aluminum foil products plant was
emitting air pollutants known as _ volatile organic
compounds (VOC), which are precursors in the formation
of ozone, in excess of the limits prescribed by
Kentucky’s state implementation plan (SIP). The
complaint prayed for an injunction and damages of
$25,000 for each day the defendant is in violation of the
Act and the SIP.

In its answer Alcan pled as an affirmative defense
that Kentucky had filed with the Environmental
Protection Agency (EPA) a proposed revision to the SIP,
but that EPA had failed to take action on the proposal,
although it was filed more than sixteen months before
the government commenced this action. Alcan further
alleged that it was in compliance with the standards of
the proposed revision. Alcan filed a motion for summary
judgment, which the district court granted. The district
court held that the Act requires EPA to act on proposed
SIP revisions within four months. United States v. Alcan
Foil Products Division, 694 F. Supp. 1280 (W.D. Ky.
1988). On motion for reconsideration, the district court
held that even if the ‘four-month rule’ does not apply,
EPA should not be permitted to bring an enforcement

etn. |

A3

action against a polluter who is in compliance with a
proposed revised SIP, which might be approved
eventually but upon which the EPA has failed to act.
The district court dismissed the action. We affirm in part
and reverse in part.

I.

Under the Act the Administrator of EPA is required
to establish national ambient air quality standards
(NAAQS). As the first step in the process EPA publishes
lists identifying emissions that are reasonably believed
to endanger public health and welfare. EPA then issues
air quality criteria for each listed pollutant. 42 U.S.C.
§7408(a). Finally, EPA, following statutory procedures
and timetables, promulgates NAAQS for each listed
pollutant. These NAAQS limit the emissions of each
pollutant to a level consistent with the achievement and
maintenance of the desired air quality. 42 U.S.C. §7409.

After it has established the NAAQS for each
pollutant, the role of EPA is secondary and that of the
states becomes primary. Train v. Natural Resources
Defense Council, Inc., 421 U.S. 60, 79 (1975). This is
made clear by section 107(a) of the Act, 42 U.S.C.
§$7407(a), which provides:

_ Each State shall have the primary responsibility
for assuring air quality within the entire geographic
area comprising such State by submitting an
implementation plan for such State which will
specify the manner in which national primary and
secondary ambient air quality standards will be
achieved and maintained within each air quality
control region in such State.

Congress amended the Act in 1970, adding section
110, 42 U.S.C. §7410, Section 110 provides for the
promulgation and revision of SIPs. Section 110(a)

A4

requires each state to adopt and submit to EPA an SIP
within nine months after EPA has established primary
and secondary NAAQS for any pollutant. The SIP must
“provide[ } for implementation, maintenance, and
enforcement of'’ each standard in each air quality control
region within the state. 42 U.S.C. §7410(a)(1). The Act
contains many time restrictions. Section 110((a)(2) applies
to original SIPs and provides that EPA “shall, within
four months after the date required for submission of a
plan under paragraph (1), approve or disapprove such
plan or any portion thereof."” EPA must approve a plan
if it satisfies the procedural and substantive requisites
set forth in subparagraphs (A) through (K). Section
110(a(3) deals with SIP revisions. Subsection (A)
provides:

The Administrator shall approve any revision of
an implementation plan applicable to an air quality
control region if he determines that it meets the
requirements of paragraph (2) and has been adopted
by the State after reasonable notice and public
hearings.

Il.

Louisville is in the Kentucky air pollution control
region that is designated the Air Pollution Control
District of Jefferson County (the Region). Region
Regulation 6.29, a part of the Kentucky SIP, established
the emissions standards for the VOCs emitted by
Alcan's rotogravure printing presses. Under the existing
SIP, emission compliance at the Alcan plant is
determined at each emission source. Thus, if the
emissions from one press exceed the standards, the
entire plant is out of compliance.

A5

A.

Alcan prepared a proposed revision to Regulation
6.29, and after approval by the Region, Kentucky
submitted the proposed revision to EPA on March 3,
1986. The proposed revision would adopt the ‘‘bubble
concept”’ for determining compliance rather than the
existing method of determining compliance at each
individual emissions source. Under the bubble concept
the total emissions of a given pollutant from a plant or
area, over a_ prescribed period, are calculated to
determine compliance or noncompliance. Thus, a bubble
permits a ‘“‘supercomplying source’ to offset an
“undercomplying source,’ thereby enabling the entire
plant to meet applicable emissions standards. The
proposed revision used a thirty-day averaging period. As
proposed, if the average of Alcan’s Louisville VOC
emissions over a thirty-day period met the standards
under the revision, Alcan would be deemed in
compliance.

EPA had previously approved the bubble concept
generally, but it advised the Region that the proposed
plan was deficient. Following a request (for
reconsideration, EPA advised the Region on July 7,
1986, that it usually recommended only one day or one
week averaging periods for emissions, but that Alcan
“would be out of compliance, even if the 30-day
averaging time was granted.”

B.

Several events occurred while the parties were
attempting to resolve their disagreements over the
proposed revision. First, the Region filed suit in district
court to compel EPA to approve the proposed revision.
Such an action may be brought pursuant to section

A6

304(a)(2) of the Act, 42 U.S.C. §7604(a)(2), by any
person who claims that EPA has failed to perform a
nondiscretionary act or duty imposed upon it by the Act.
Soon thereafter, without reference to the proposed
revision, EPA notified Alcan that seven of its presses
failed to comply with existing Regulation 6.29. This
notice of noncompliance led to further discussions
between EPA and Alcan. While these discussions were
taking place, EPA published uniform criteria and
procedures for bubble plan reviews. 51 Fed. Reg. 43814-
60 (Dec. 4, 1986). The bubble plan contained in the
proposed Kentucky SIP revision did not satisfy these
criteria.

On July 16, 1987, the United States, at the request
of EPA, filed this enforcement suit. At that time EPA
had taken no formal action with respect to the proposed
SIP revision. Although the regional administrator of
EPA had recommended that the proposed revision be
disapproved, at the time the case was submitted to the
district court on Alcan’s motion for summary judgment,
EPA still had not acted on the proposed revision. We are
advised that after the district court entered final
judgment dismissing the action, EPA rejected the
proposed SIP revision for failure to demonstrate the
necessity of employing an averaging period greater than
twenty-four hours. 53 Fed. Reg. 40745 (Oct. 18, 1988).

III.

At least five courts of appeals have considered the
question of whether EPA is required to act on a
proposed SIP revision within four months after its
submission. Four courts have applied the four-month rule
to proposed revisions. See Duquesne Light Co. v. E.P.A.,
698 F.2d 456, 471 (D.C. Cir. 1983); United States v.

ee ee

A7

General Motors Corp., 876 F.2d 1060, 1066 (1st Cir.
1989); Council of Commuter Organizations v. Gorsuch,
683 F.2d 648, 651-52 n.2 (2d Cir. 1982); Council of
Commuter Organizations v. Thomas, 799 F.2d 879, 888
(2d Cir. 1986); American Cyanamid Co. v. E.P.A., 810
F.2d 493, 495 (5th Cir. 1987); General Motors Corp. v.
E.P.A., 871 F.2d 495, 498 (5th Cir. 1989). This court is
the only one to have suggested that the four-month rule
does not apply. In United States v. National Steel Corp.,
767 F.2d 1176 (6th Cir. 1985), we affirmed judgment for
the government in an enforcement action. In upholding
the district court, we rejected the defendant's contention
that enforcement violated the substantive due process
rights.

National Steel and the present case are similar in
that the defendant in each sought to avoid expenditures
to bring its operations into compliance under an existing
SIP by proposing a revision based on the bubble
concept. In National Steel however, there had been an
earlier section 113 action in which the government and
National Steel had entered into a consent decree setting
forth the dates by which National Steel must take
various steps to comply with the existing SIP. The
consent decree specifically provided that an application
for a bubble would not postpone the compliance dates.
Despite this provision, National Steel did not begin
installing pollution control equipment by the required
dates, and cancelled purchase orders for the equipment
when it sought approval of the bubble alternative. We
agreed with the district court that National Steel ‘‘had
made a business decision to risk the penalties inherent in
violating the consent decree on the gamble that the EPA
would approve the bubble.” 767 F.2d at 1179.

A8

It is clear that we decided National Steel on due
process grounds. We concluded that all the
circumstances, most importantly the consent decree’s
provision prohibiting the use of a proposed SIP revision
to postpone compliance dates, negated a finding of a due
process violation. Our only reference to the four-month
rule consisted of a footnote. In response to one of
National Steel's alternative arguments, we wrote:

National claims that section 110(a)(2) of the Clean
Air Act ... requires the EPA to approve or
disapprove proposed SIP revisions within four
months of their submittal by the state. Section
110(a)(2) requires action within four months for
general state plans submitted under section
110(a)(1), not for revisions to state plans governed
by section 110(a)}3)(A).

767 F.2d at 1182-83 n. 1.

We do not believe that the quoted language
precludes our reexamination of the question. As the First
Circuit noted in United States v. General Motors Corp.,
876 F.2d at 1066, the statement is “‘arguably dicta.”
Upon close scrutiny the footnote says nothing more than
that section 110(a)(2), which applies to ‘‘general’’ state
plans, does not require action within four months on
proposed revisions that are governed by section
110(a\(3)(A). Alcan and amici do not contend that section
110(a\2) requires anything with respect to proposed
revisions. They argue that section 110(a)(3)(A),which does
apply to revisions, incorporates the four-month
requirement, at least by implication. They contend that
EPA’s duty, set out in section 110(a)(3)(A), to approve
any SIP revision if EPA ‘‘determines that it meets the
requirements of paragraph (2)" refers to the time limit of
section 110(a)(2) as well as to the substantive
requirements of section 110/a)\(2)(A) through (K). This

AY

reading of the statute is supported by the language of
section 110(g)(1),' where Congress referred to the duty to
approve or disapprove a proposed plan revision ‘‘within
the required four month period.” This court did not refer
to section 110g) in National Steel.

We believe the courts that have examined the matter
and found the four-month rule to apply have reached the
correct conclusion. We recognize that such a requirement
is not manifest from reading section 11a)(3)(A).
However, it seems clear to us that Congress intended to
incorporate the time limit, and felt it had done so by
referring to ‘the requirements of paragraph (2).
Although a subsequent Congress’ interpretation of
legislation enacted by an earlier one is not binding, that
interpretation carries obvious weight. Section 11a) and
section 110(g) were enacted within seven years of each
other at a time when environmental issues were in the
very forefront of national concern. We are persuaded
that the ninety-fifth Congress correctly interpreted the
intent of the ninety-first.

Further, as Judge Coffin pointed out in General
Motors, this is not an instance in which an agency's
interpretation of a statute should be accorded great
deference:

Congress did not use inherently broad language here
suggesting that it intended for the EPA to fill in the
gaps, nor is there any other indication that Congress
wished to delegate interpretative authority to the
Agency on this issue. Moreover, we think it

‘Section 110 was added to the Act in 1970. In a 1977 amendment,
codified as section 110(g), Congress granted to state governors the
authority to issue temporary emergency suspensions of parts of an
SIP for which a proposed revision had been submitted and ‘‘which
[EPA] has not approved or disapproved under this section within the
required four months period.” 42 U.S.C. §7410ig)\1).

Al0

dangerous to defer in a situation such as this where
the Agency has a substantial institutional interest
in not imposing constraints on itself.

876 F.2d at 1066. We agree. Given the primary role of
the states in implementing air quality standards, it is
difficult to conclude that EPA is not required to act with
dispatch on a revision proposed by a state. Application
of the four-month rule to proposed revisions will assure
reasonably prompt action.

IV.

The courts that have found the four-month deadline
applicable to SIP revisions have not agreed on the
consequences that should follow from EPA's failure to
act within that time frame. In the two Council of
Commuter Organization cases, EPA's failure to act on a
proposed SIP revision was a subsidiary issue. Although
the Second Circuit held in both decisions that the Act
requires EPA to approve or disapprove a proposed
revision within the four-month period, 683 F.2d at 651-52
n. 2 and 799 F.2d at 888, the court did not examine all of
the possible judicial responses to EPA's failure to act. It
did note, however, that “‘tardiness by EPA is not a basis
for granting a petition for review of action that satisfies
the substantive requirements of the Act,’ and that the
remedy for undue delay is a suit to compel EPA to
perform a nondiscretionary act. 799 F.2d at 888.

The District of Columbia Circuit and the Fifth
Circuit have examined the available options, and have
reached quite different conclusions. Although the cases
in both circuits involved petitions to review agency
action under section 120’ rather than a section 113

* Section 120, 42 U.S.C. §7420, provides penalties for noncompliance
with established standards sufficient to remove any economic
advantage that the violator would gain over complying sources—''the
economic value of noncompliance.”

All

enforcement action, we believe the approach to the issue
of consequences for the agency's failure to act within
four months should be the same. In Duquesne Light Co.
v. E.P.A., 698 F.2d 456 (D.C. Cir. 1983), the court
rejected the industry petitioners’ claim that a source in
compliance with the standards of a proposed revision
upon which EPA has failed to act may not be assessed
penalties even though it is out of compliance with the
existing SIP. As the court noted, a proposed revision is
exactly what its name implies—a proposal, and nothing
more. Jd. at 471. If the industry view were adopted,
‘states could circumvent requirements of the Act by
proposing revisions to their SIPs.’ Jd The court,
however, found that it would be inequitable to permit
EPA to continue to assess penalties against sources out
of compliance with existing SIPs, but in compliance with
proposed revisions, no matter how long EPA took to act
on the proposals. The court adopted a solution that it
believed would be fair to both the industry sources and
EPA while at the same time protecting the public from
the hazards of air pollution. It required EPA to develop
a regulation under which once the statutory deadline for
acting on a SIP revision passes, the noncompliance
penalty is held in abeyance pending final action on the
SIP by EPA. Should EPA ultimately reject the SIP, the
penalty should be calculated back to the deadline, with
interest. Such a regulation will protect a source in
compliance with air quality standards from the time
EPA should have approved an eventually approved SIP
revision and will remove any economic benefit accruing
to a source not in compliance with the law if the SIP
revision is not approved.

Id. at 472.

Al2 |

The Fifth Circuit has followed a different approach.
Emphasizing the primary role of the states in
implementing the Act and the need for cooperative
efforts, the court held in American Cyanamid Co. v.
E.P.A., 810 F.2d 493, 500 (5th Cir. 1987), that ‘the EPA
may not collect a penalty for the period between (1) four
months after a state submits a proposed revision and (2)
the date the EPA rejects that revision.’’ The court also
held that “when the EPA issues its Notice of
Noncompliance more than four months after a state
proposes a SIP revision, the EPA may not commence
$7420 proceedings until it rejects the proposed revision.”’
Id. at 501. The court applied the same reasoning where
EPA failed to act on a “delayed compliance order’’
issued pursuant to section 113(d) within 90 days of the
notice of issuance. General Motors Corp. v. E.P.A., 871
F.2d 495, 487-98 (5th Cir. 1989).

B.

Writing for the court in United States v. General
Motors Corp., 876 F.2d 1060 (1st Cir. 1989), Judge Coffin
attempted to fashion a middle course. Shortly before the
compliance deadline under the existing SIP, General
Motors proposed an SIP revision to extend the deadline
so that General Motors could complete construction of |
complying facilities. Massachusetts approved the
revision. A year and a half later, the government filed a
$113 action to enforce the existing SIP. One year after
that, two and a half years after Massachusetts
submitted the proposed revision, EPA finally rejected
the proposal. The district court applied the four-month
rule, barring an enforcement action under the existing
SIP during the period between expiration of the four-
month deadline and the time EPA finally acts on the
proposed revision. Accordingly, the district court
dismissed the enforcement action.

—

Al3

After considering arguments on both sides, the court
of appeals agreed that “the four month deadline was
meant to apply to EPA review of SIP revisions as well
as to EPA review of original SIPs.”’ Jd. at 1066. While
acknowledging that the Fifth Circuit’s rule furnishes the
strongest incentive for EPA to act within four months,
the court concluded that an automatic bar to an
enforcement action is not the best remedy. Jd. at 1067.
The First Circuit agreed with the Fifth Circuit, however,
that the D.C. Circuit’s rule offered too little incentive for
EPA to act with dispatch. Accordingly, the First Circuit
approved a ‘“‘twofold’’ remedy. Id.

Under one approach, if either an emissions source or
a state believes EPA has not taken final action on a
proposed revision within a reasonable time, the affected
party may, after the four-month period expires, bring an
action under section 304(a)(2) to compel the agency to
act. In such a proceeding the district court “should
assess the Agency’s reasons for not complying with the
four-month time limit and take such action as it deems
reasonable.”’ Jd. at 1068. The court must consider all the
circumstances of each case, using failure to observe the
four-month requirement as ‘‘a rough guidepost.”’ Jd.

The court should apply the same principles under the
second alternative. If EPA files a section 113 action to
enforce the existing SIP when a proposed revision has
been submitted for more than four months without final
approval or disapproval, rather than dismissing the
action, the district court should adjust the penalties after
considering (1) the reasonableness of the delay, (2) the
prejudice the delay has caused the company, and (3) the
factors listed in section 113(b).*

* Section 113(b) provides: ‘‘In determining the amount of any civil
penalty to be assessed under this subsection, the courts shall take
into consideration (in addition to other factors) the size of the

business, the economic impact of the penalty on the business, and the
seriousness of the violation.’’ 42 U.S.C. $7413\(b).

Al4

The court gave an example of how its formula would
work:

If, for example, a trial court finds that the review
process should have taken ten months rather than
two years, it may decline to award penalties for the
fourteen months of unwarranted delay. Accordingly,
if on remand in this case, the district court finds
that GM was prejudiced by the Agency’s lengthy
review and that the delay was not justified or that
some portion of the delay was not justified, it may
reduce the penalties in a manner it sees fit.

Id. at 1068 (footnote omitted).

7.

In the present case the district court followed the
Fifth Circuit’s decision in American Cyanamid and
dismissed the enforcement action. We believe this was
error. The Supreme Court has expressed reluctance to
treat statutory commands that an agency act within a
given time as jurisdictional requirements. In Brock v.
Pierce County, 476 U.S. 253 (1986), the Court stated in a
unanimous opinion:

This Court has frequently articulated the ‘‘great
principle of public policy, applicable to all
governments alike, which forbids that the public
interest should be prejudiced by the negligence of
the officers or agents to whose care they are
confided.’ United States v. Nashville, C. & St. L. R.
Co., 118 U. S. 120, 125 (1886). See also Guaranty
Trust Co. v. United States, 304 U. S. 126 (1938);
Stanley v. Schwalby, 147 U. S. 508, 515 (1893). We
would be most reluctant to conclude that every
failure of an agency to observe a_ procedural
requirement voids subsequent agency action,
especially when important public rights are at stake.
When, as here, there are less drastic remedies
available for failure to meet a statutory deadline,
courts should not assume that Congress intended
the agency to lose its power to act.

Id. at 260 (footnote omitted).

Al5
A.

As a practical matter, in view of past performances,
EPA will likely continue to miss the four-month deadline.
It is not clear whether the requirement is unrealistic in
view of the number of proposals submitted, or whether
EPA's procedures are too cumbersome. Regardless of the
cause for delay in so many cases, courts must apply
remedies that, as nearly as possible, promote the primary
purpose of the Act—improvement of the quality of the
nation’s air. The public should not suffer because of
EPA’s failures.

Clearly remedies less drastic then dismissal are
available for EPA’s failure to act within four months.
Judged by the history of this case, the alternative
remedy of suit under section 304(a) to compel EPA to
rule is not very effective. As we have noted, the Region
filed such an action before the government filed the
present one, but as far as the record shows, nothing
came of it. Apparently, when the government filed the
enforcement action the court and the parties viewed that
action as the best vehicle for resolving the issues in
dispute. For whatever reason, it is clear that the
Region’s section 304(a) action did not cause EPA to rule
on the proposed revision. The final ruling on the
proposed revision came well over two years after the
section 304(a) suit was filed.

We believe the most effective remedy is the second
one proposed by the First Circuit. The district court
clearly has discretion to determine what penalties should
be imposed for noncompliance. Section 113(b) provides
for an injunction or a civil penalty of not more than
$25,000 per day of violation, or both. Any prejudice to
the violator resulting from EPA's delay in ruling on a

Al6

proposed SIP revision and EPA’s reasons for delay are
among the factors to be taken into account in
determining penalties.

When the government files a section 113 suit against
an emissions source that claims to be in compliance with
the standards of a proposed SIP revision upon which
EPA has failed to act within four months, the remedy
will depend upon each party’s proof. If the source does
not establish that it is in compliance with the proposed
revision, the court may assess penalties from the date of
the notice of noncompliance. If the source demonstrates
that it has met the standards of the proposed revision,
the government has the burden of justifying EPA's
delay in acting on the proposal. The court must then
balance the reasonableness of the delay against whatever
prejudice the source is able to establish. This balancing
will determine whether a civil penalty fine is proper and,
if proper, whether the fine will commence with the date
of notice of noncompliance, the date of finai action on the
proposed SIP revision, or some date in between.

B.

Here Alcan has proposed and Kentucky has
approved a SIP revision. The government issued a notice
of noncompliance with the existing SIP, even though
EPA had not rejected the proposal within the required
four-month period. Alcan asserts that it has complied
with the proposed SIP. If it can prove this assertion,
then the government must prove that EPA’s delay in
taking final action on the proposal was reasonable. In
this regard, Alcan and amici argue that the proposed
bubble plan would have qualified for approval under
EPA’s “‘generic bubble rule’’ in force when Kentucky
submitted the proposed revision. Alcan claims that EPA

a

Al7

delayed its ruling on the proposed SIP revision until it
could formulate regulations that would render the
proposed bubble plan unacceptable. If these claims are
true, the government cannot satisfy the burden of
proving that EPA’s delay in rejecting the proposals was
reasonable in this situation, the district court may assess
fines beginning only from the date the new bubble
regulations took effect. Regardless of the date from
which the district court begins assessing civil penalties,
the court retains the discretion to assess the amount of
penalties based on the equities as disclosed by the proof.

CONCLUSION

Although the district court correctly concluded that
the four-month deadline for EPA action applies to
proposed SIP revisions as well as to original SIPs, it
applied the wrong remedy. The government’s action
sought penalties only for violating the existing SIP, but
Alcan's affirmative defense rested on EPA's failure to
act on the proposed revision. There is no dispute that
Alcan was in violation of the standards established under
the existing SIP. Given Alcan’s defense, it was necessary
for the court to know whether Alcan was in compliance
with the proposed revision as the first step in
determining the penalty issue. The evidence on this
question, consisting of conflicting affidavits, was in
sharp dispute.

The summary judgment of dismissal is reversed, and
the case is remanded. The district court will reinstate the
action and conduct further proceedings consistent with
this opinion.

Al8

CONCUR:

Ryan, Circuit Judge, concurring. My brother's
excellent opinion resolves, correctly I think, at least two
very difficult issues. While I concur in the court's
judgment, I write separately because I am uncomfortable
with the court’s description of the criteria to be
considered by the district court upon remand, and
presumably by other courts in like cases hereafter, in
determining the remedy that may be imposed in an
enforcement action brought by the government under 42
U.S.C. §7413(a) in which the alleged polluter previously
filed a proposed revised SIP with the Environmental!
Protection Agency.

The majority opinion rejects as unwarranted the
remedy formula adopted for such cases in the Fifth and
District of Columbia Circuits. American Cyanamid Co. v.
U.S.E.P.A., 810 F.2d 493 (5th Cir. 1987), and Duquesne
Light Co. v. E.P.A., 698 F.2d 458 (D.C. Cir. 1983). it
subscribes instead to the second prong of the remedy
adopted by the First Circuit in United States v. General
Motors Corp., 876 F.2d 1060 (1st Cir. 1989).

While I have considerable reluctance to tell the
district court on remand, and implicitly, district courts
faced with similar cases in the future, what may and may
not be considered in determining appropriate penalties
for a proved violation of §113(a), 1 must confess that
Congress’ failure to address the situation that has arisen
in this case leaves us no alternative. I agree with my
brothers that we are duty bound to fashion a remedy
formula in a case of this kind, particularly given the
diametrically opposite enforcement formulae spelled out
in the cited cases from the Fifth and District of
Columbia Circuits. Moreover, I agree that of the choices
suggested to us, the approach devised by the General

Alg

Motors court makes the most sense and most nearly
conforms to the language of the statute and the apparent
intent of Congress.

I write separately, however, because the majority
opinion’s description of the process and criteria for the
assessment of penalties and remedies for a $113(a)
violation where a proposed SIP revision is pending,
seems to focus, inappropriately in my judgment, more
upon the question of the alleged polluter’s compliance
with the proposed SIP revision than with the existing
SIP, for violation of which the §113(a) action was
brought in the first place.

According to the majority opinion, when the
government files a $113(a) action against an alleged
polluter which defends on the theory that it is in
compliance with a proposed revised SIP, the question of
penalties, if any, is determined substantially, if not
entirely, by litigation about whether the polluter has
complied with the proposed revised SIP:

If the source does not establish that it is in
compliance with the proposed revision, the court
may assess penalties from the date of the notice of
noncompliance. If the source demonstrates that it
has met the standards of the proposed revision, the
government has the burden of justifying EPA's
delay in acting on the proposal. The court must then
balance the reasonableness of the delay against
whatever prejudice the source is able to establish.
This balancing will determine whether a civil penalty
fine is proper and, if proper, whether the fine will
commence with the date of notice of
noncompliance, the date of final action on the
proposed SIP revision, or some date in between.

Slip op. at 14-15.

A20

While the foregoing is a quotation from only a portion
of the majority opinion, it embodies the essence of the
court's instructions to the lower court on remand, and
presumably to all district courts that will address cases
of this kind in the future. The difficulty it seems to me is
that the court’s opinion describes a procedure for
determining appropriate penalties for noncompliance
with a proposed revised SIP that has no legal efficacy
whatever, and appears to completely lose sight of the
fact that the government's enforcement action is all
about an alleged violation of an existing SIP—not some
other, and one can be sure, different and less
burdensome, SIP the alleged polluter wished were in
place.

Perhaps it is merely a matter of emphasis, but I
prefer the description of the remedy determining process
as set forth in General Motors, because there it appears
to be emphasized that the business at hand is a
determination whether the existing SIP has been
violated and what penalties should follow therefrom if it
has. With that as the primary emphasis, the General
Motors court observes, almost as an aside, that in
determining penalties the district court is warranted in
taking into account “other factors’’ among which is the
reasonableness of the government’s delay in acting upon
the alleged polluter’s proposed revised SIP.

The General Motors court said:

When the Agency brings an enforcement action
under $113, the district court has _ the
responsibility for determining the amount of
penalties to assess. The Act expressly permits the
court to ‘‘take into consideration (in addition to
other factors) the size of the business, the economic
impact of the penalty on the business, and the
seriousness of the violation.”” §113(b). The EPA

A21

agrees that, among these ‘‘other factors,” the court
may consider the reasonableness of the Agency's
delay and the prejudice, if any, suffered by the
company as a result. If, for example, a trial court
finds that the review process should have taken ten
months rather than two years, it may decline to
award penalties for the fourteen months of
unwarranted delay. (Emphasis added.)

876 F.2d at 1068.

I do not suggest for a moment that my brothers
opinion does not faithfully restate the remedy formula
announced in General Motors in a way that is relevant to
the case at hand. I suggest only that the text of the
majority opinion should not be read as adopting a rule
for this circuit that the way for a polluter to avoid
penalties for an out-and-out violation of an existing SIP
is to file a proposed revised SIP ‘‘wish list’ and then
when a $113(a) enforcement action is brought, file an
affirmative defense alleging compliance with a proposed
revised SIP and take comfort that the enforcement
litigation will have to do with compliance with the
proposed SIP and not the existing one.

Why a proven polluter should not be appropriately
penalized for a violation of an existing SIP, simply
because it has complied with a proposed SIP that it
wished had been adopted and the agency has not
adopted, is difficult for me to understand.‘ Perhaps the
answer is that it will ‘sufficient unto the day’ when we
are presented with a district court enforcement decision
in which the government attempts to demonstrate that
the district court erroneously failed to keep its eye on
the ball that was in play instead of the one the ‘source’
wished were.

‘In this case for example, when the EPA got around to acting on the
appellant's proposed revised SIP it was disapproved

AZZ

in au events, i concur in the court s judgment that
the summary judgment was improperly entered in this

-

a , — ™ 4 ‘ ,
ase and tnat the matter must be remanded for further

A23

MEMORANDUM OPINION OF THE UNITED
STATES DISTRICT COURT, WESTERN
DISTRICT OF KENTUCKY

(Dated March 15, 1988)
Civil Action No. 87-0434-LiCS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALCAN FOIL PRODUCTS, Division of
Alcan Aluminum Corporation,

Defendant and Third-
Party Plaintiff,

VS.

ATLANTIC RICHFIELD COMPANY,
Third-Party Defendant

MEMORANDUM OPINION

This is an enforcement action brought by the United
States on behalf of the Administrator of the United
States Environmental Protecton Agency (‘EPA’)
pursuant to 42 U.S.C. §$$7413(b) and 7420 of the Clean
Air Act (‘Act’), 42 U.S.C. $§7401 et seq. In its
complaint, the EPA alleges that the defendant, Alcan
Foil Products Division (‘‘Alcan’’), is producing excessive

, A24

emissions of volatile organic compounds (““VOCs’’)' in
violation of emission standards contained in Regulation
6.29 of the Jefferson County Air Pollution control
District (““JCAPCD”).? This matter is presently before
the Court on motion by Alcan for summary judgment in
its favor pursuant to Rule 56, Fed. R. Civ. P.

Interpreting the evidence in a light most favorable to
the EPA, the facts may be stated as follows. See
Anderson us. Liberty Lobby, Inc, _——*U SS.

, 106 S.Ct. 2505, 2513 (1986) (citation omitted).
Alcan operates a laminating facility in Louisville,
Kentucky, that manufactures products which include
cigarette package foil liners, electric cable wrap, air
conditioner fin stock, label stock, composite can stock
and hood stock for frozen food trays. In connection with
production at the facility, Alcan operates ten (10)
rotogravure printing presses. Each of these printing
presses either emits or has the potention to emit VOCs.
On March 3, 1986, a revision to the existing KSIP was
submitted by the Kentucky Natural Resources and
Environmental Protection Cabinet to the EPA on behalf
of the JCAPCD pursuant to 42 U.S.C. §7410. This
proposed KSIP revision included an amended version of
JCAPCD Regulation 6.29. Under the existing KSIP,
VOC emission compliance at the Alcan facility was
determined at each particular emission source. That is, if

VOCs are “air pollutants’’ as defined by the Act, 42 U.S.C. §7602(g).
JCAPCD Regulation 6.29 requires that VOC emissions by
rotogravure presses be kept within certain levels.

‘JCAPCD Regulation 6.29 is a part of the Kentucky State
Implementation Plan (‘‘KSIP’’) originally approved by the EPA in
August of 1981 and subsequently revised and reapproved in January
of 1984. A State Implementation Plan or SIP is the means whereby a
state may implement and maintain ‘‘National Ambient Air Quality
Standards (’NAAQS”) promulgated by the EPA within its borders.
See 42 U.S.C. §§7409 (NAAQS); 7410 (SIPS).

A25

one emission source exceeded the standards established
by JCAPCD Regulation 6.29, then Alcan would be in
noncompliance. Under the proposed KSIP revision,
Alcan’s VOC emissions would be regulated by
consideration of all point sources of the facility together
under a ‘bubble concept’’ rather than on an individual
basis. Under the ‘‘bubble concept’’, the entire facility
could meet compliance requirements by offsetting
emissions at one source within the plant by over-
compliance at another source. The EPA has approved
application of this bubble concept in certain instances.’

On July 14, 1986, the EPA served notice on Alcan
and the JCAPCD that seven (7) rotogravure printing
presses were in noncompliance with Regulation 6.29. An
inspection of the Louisville plant by the EPA on October
15, 1986, confirmed that VOC emissions from the presses
remained excessive and that the emissions violated both
Regulation 6.29 and daily emission standards under the
proposed KSIP revision.‘ Following the issuance of the
notice of noncompliance, Alcan and the EPA met to
discuss the alleged violation as well as the proposed
KSIP revision. On December 4, 1986, the EPA issued its
revised Emission Trading Policy which established
uniform procedures and criteria upon which any approval
of bubble plans by the EPA would be predicated.’ On
February 18, 1987, the EPA informed Alcan of
deficiencies in the JCAPCD’s proposed bubble plan and

* Rice, EPA Issues Final Emissions Trading Policy Under the Clean
Air Act, EPA Environmental News (1986).

‘ By affidavit, Robert T. Offut, Director of the JCAPCD, states that
Alcan has been in compliance with the proposed KSIP revision since
November of 1986.

*See 51 Fed. Reg. 43814-43860 (1986) (effective date December 4,
1986).

A26

recommended certain revisions that were necessary prior
to any approval by the EPA. On July 15, 1987, this
action was filed at the request of the EPA. On August
26, 1987, EPA’s Regional Administrator signed a
proposed rule disproving the JCAPCD’s proposed KSIP
revision. To date, the EPA has not formally approved or
disapproved of the Regional Administrator's action.

In support of its motion, Alcan relies upon the
affidavit of the Director of the JCAPCD to establish
that it is in compliance with the proposed KSIP revision
and has been since November of 1986. See fn. 4, supra.
This opinion is based upon monthly operating emission
reports provided since March of 1986 by Alcan to the
EPA and the JCAPCD. In addition, Alcan has also
provided to both the EPA and JCAPCD. a
comprehensive engineering report containing emission
data for a two-year baseline period from July of 1985
through June, 1987.* On the basis of this information.
Alcan relies upon the decision rendered by the Court of
Appeals for the Fifth Circuit in American Cyanamid vs.
U.S. E.P.A., 810 F.2d 493 (5th Cir. 1987), in its assertion

* Affidavit of Lawrence Cooke, Manager of Environment, Health.
Safety and Security at the Alcan facility since October of 1986. The
report prepared by the engineering firm for Alcan entitled ‘State
‘Implementation Plan Revision’’ was completed in August of 1987
This report indicates that there is some disagreement between the
JCAPCD and the EPA concerning the emission value against which
actual emissions at the Alcan facility are compared to determine
compliance. The emission value recommended by the EPA is 122.5
tons year. The JCAPCD has recommended an emission value of 133.9
tons year and Alcan asserts that 185.0 tons/year is the proper value
This report concludes after conducting a compliance comparison
between actual emissions and the 133.9 tons/year value that on an
annual basis Alcan complies with the proposed SIP emission
allowance. On a daily basis, wherein the allowable KSIP value is 1046
ibs. day, the Alcan facility meets the criteria on all but six (6) days
during the two (2) year baseline period.

A27

that summary judgment in its favor is proper. In
American Cyanamid, the Court held that, when the EPA
issues a notice of noncompliance more than four (4)
months after a state has submitted a proposed SIP
revision under which the alleged violator is in
compliance, then the EPA may not commence a civil
action under 42 U.S.C. §7420 until it rejects the
proposed revision. /d. at 501.

Despite this Court’s order granting the EPA an
extension of time to file a response to Alcan’s motion for
summary judgment, the EPA has chosen not to respond.
Rather, the EPA has requested that this Court deny
Alcan’s motion without prejudice in lieu of further
discovery by the EPA pursuant to Rule 56(f), Fed. R.
Civ. P.’ EPA contends that a genuine issue of material
fact exists as to whether Alcan’s facility is operating in
compliance with the proposed KSIP revision. Because no
less than eight (8) months have passed since it filed its
complaint, the EPA requests that this Court deny
Alcan’s motion without prejudice to its refiling after the
EPA has had an ample opportunity to obtain meaningful
discovery on this issue. In an effort to show that its
request is made in good faith, the EPA has submitted
the affidavit of its Regional Expert for the Aijr
Compliance Branch wherein he states that, in his
opinion, Alcan’s facility is in noncompliance with the
present JCAPCD Regulation 6.29 as well as with the

’ Rule 56(f), Fed. R. Civ. P., states as follows:

Should it appear from the affidavits of a party opposing the
motion [for summary judgment] that he cannot for reasons
stated present by affidavit facts essential to justify his
opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make
such other order as is just.

A28

proposed KSIP revision. Other than this conclusory
assertion, the EPA has failed to inform this Court of any
specific information that would tend toe support this
opinion. Moreover, the EPA has also failed to state any
reason why the emission data already supplied by Alcan
is insufficient.

It is the opinion of this Court that whether Alcan’s
facility is in present compliance with the proposed KSIP
revision is a non-issue in this action. EPA’s complaint
wholly fails to allege that this enforcement action is
premised upon any violation of the proposed KSIP
revision. This is understandable since the existing KSIP
remains the standard against which compliance is
measured until the EPA acts upon the revision
submitted by the JCAPCD. American Cyanamid, 810
F.2d at 495 (citations omitted). It is equally apparent
that, since the EPA’s notice of noncompliance was
served more than four (4) months after the JCAPCD
submitted its proposed KSIP revision, it may not
commence enforcement proceedings until it acts upon the
proposed revision. Jd. at 501.

The EPA seeks to distinguish American Cyanamid
from the instant action on the basis that the alleged
violator in that case would have complied with
Louisiana's SIP on schedule had the EPA approved the
revision in four (4) months. The EPA contends that the
holding in American Cyanamid_ stands for the
proposition that the EPA is not estopped from initiating
enforcement proceedings unless the alleged violator
proves it is in compliance with the proposed SIP
revision. This narrow view of the Court’s holding in
Amencan Cyanamid distorts the whole of the opinion.

In American Cyanamid, Circuit Judge Jerre S.
Williams aptly stated as follows:

A29

Where, as here, the state has proposed a revision to
the SIP which clearly authorizes local businesses to
act in accordance with it without running afoul of
the Clean Air Act, the interest of the state itself is
deeply involved in the required four month approval
or disapproval of the proposed revision. It distorts
the statutory scheme to place virtually full emphasis
upon the business entity involved as a charged
“polluter”. The emphasis of the statute, rather, is
upon the important role which the state plays in
defining authorized 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 state in implementing standards and
enforcing the Clean Air Act. We emphasize the
importance of the EPA acting, not for the benefit of
American Cyanamid, but for the benefit of the State
of Louisiana which is by statute designated to play
a significant cooperating role with the EPA.

Id. at 500.

The emphasis, then, is not upon whether Alcan is in
compliance with the proposed KSIP revision. Rather, the
primary issue is whether the EPA has acted responsibly
to avoid a state of regulatory limbo such as exists in this
instance. Due to its inaction on the proposed KSIP
revision, the EPA may not bring an enforcement action
against Alcan under the existing KSIP since Alcan has
been operating in reliance upon assurances by the
JCAPCD that its emissions are acceptable and in
compliance with the proposed KSIP revision. The EPA
may not seek to enforce the standards of the proposed
KSIP revision since it has failed to take any final action
on the proposal. This regulatory quandry is of EPA's
own making.

A30

Moreover, the dispute over whether Alcan is in
compliance with the proposed KSIP revision is
apparently between the EPA and JCAPCD. Alcan has
been informed by the JCAPCD that its operation is in
compliance. Whether the JCAPCD’s assessment of
compliance is inaccurate for any reason is an issue that
must be resolved between the two regulatory agencies
before any enforcement action may be brought against
Alcan. Had the EPA definitively ruled on the proposed
KSIP revision within the four (4) month period as
required, then, at least, the standards for determining
non-compliance would be clear and this action could
proceed. However, until this is done, no enforcement
action is appropriate. Accordingly, Alcan is entitled to
summary judgment as a matter of law.

Therefore, because the further discovery sought by
the EPA is essentially unnecessary to this action, EPA’s
motion under Rue 56(f), Fed. R. Civ. P., is denied. See 6-
Pt. 2 Moore's Federal Practice 456.24, 56-1425, 1426 (2d
Ed. 1987). Furthermore, after consideration of the
pleadings filed herein and all admissible evidence of
record, summary judgment in favor of Alcan is granted
as a matter of law. In ruling on Alcan’s motion, this
Court expresses no opinion regarding the merits of any
claims by the EPA that Alcan is operating in violation of
the Clean Air Act.

Separate orders shall accompany this Memorandum
Opinion.
This 15th day of March, 1988.

/si/ CHARLES R. Simpson, III
United States District Judge

cc: Counsel of Record

A3l
ORDER OF UNITED STATES DISTRICT
COURT, WESTERN DISTRICT OF KENTUCKY
(Dated March 15, 1988)
Civil Action No. 87-0434-LiCS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

UNITED STATES OF AMERICA,
Plaintiff,

Vs.

ALCAN FOIL PRODUCTS, Division of
Alcan Aluminum Corporation,
Defendant and Third-

Party Plaintiff,

Vs.

ATLANTIC RICHFIELD COMPANY,
Third-Party Defendant.

ORDER

For the reasons stated in the Memorandum Opinion
entered this date,

IT IS HEREBY ORDERED that EPA’s motion to
hold Alcan’s motion for summary judgment in abeyance
pending further discovery pursuant to Rule 56(f), Fed. R.
Civ. P., is DENIED.

This 15th day of March, 1988.
s/ CHARLES R. Simpson, III

United States District Judge
cc: Counsel of Record

A32
ORDER OF THE UNITED STATES DISTRICT
COURT, WESTERN DISTRICT OF KENTUCKY
(Dated March 15, 1988)
Civil Action No. 87-0434-LiCS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALCAN FOIL PRODUCTS, Division of
Alcan Aluminum Corporation,

Defendant and Third-
Party Plaintiff,

Vs.

ATLANTIC RICHFIELD COMPANY,
Third-Party Defendant.

ORDER

For the reasons stated in the Memorandum Opinion
entered this date,

IT IS HEREBY ORDERED that Alcan’s motion for
summary judgment in its favor pursuant to Rule 56,
Fed. R. Civ. P., is GRANTED, and this action shall be
remanded from this Court’s docket by the Clerk of the
Court.

A33

There being no just reason for delay in its entry, this
is a final order.

This 15th day of March, 1988.

's)/ CHARLES R. Simpson. III
United States District Judge

ce: Counsel of Record

A34

MEMORANDUM OPINION OF UNITED
STATES DISTRICT COURT, WESTERN
DISTRICT OF KENTUCKY

(Dated September 15, 1988)
Civil Action No. 87-0434-LiCS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

UNITED STATES OF AMERICA,
Plaintiff,

VS.

ALCAN FOIL PRODUCTS DIVISION
OF ALCAN ALUMINUM CORPORATION,
Defendant and Third-

Party Plaintiff,

Vs.

ATLANTIC RICHFIELD COMPANY,
Third-Party Defendant.

MEMORANDUM OPINION

This matter is before the Court on the motion of the
United States Environmental Protection Agency
(“EPA”) for reconsideration of this Court’s prior
summary judgment ruling. By order dated March 15,
1988, this Court granted summary judgment in favor of
defendant, Alcan Foil Products Division of Alcan
Aluminum Corporation (“Alcan”), dismissing the EPA's
complaint seeking penalties and injunctive relief for

A35

Alcan's alleged violation of the Clean Air Act, 42 U.S.C.
§§7401 et seq. The pertinent facts have already been
fully set forth and will not be repeated here.

The Court has considered the authorities submitted
in support of and in opposition to the EPA’s motion for
reconsideration. The Court has given special scrutiny to
United States vs. National Steel Corporation, 767 F.2d
1176 (6th Cir. 1985), and, as explained herein, conciudes
that National Steel does not require that this Court
vacate its previous order granting summary judgment in
Alcan’s favor.

In National Steel the EPA sued National Steel for
violation of the Federal Clean Air Act. In resolution of
that action, as part of a consent decree, National Steel
agreed to begin, by August 1, 1981, installation of
pollution-control equipment on a furnace at one of its
facilities. The consent decree imposed penalties for
noncompliance, but permitted National Steel to seek
alternative emission reduction options. National Steel
sought such an option by seeking a ‘‘bubble’ plan for
the facility at which the offending furnace was located.
The consent decree expressly provided that application
for a “bubble” would not excuse delay in complying with
the consent decree deadline. Jd at 1179. Apparently in
hopes that the bubble would e approved, National Steel
did not begin installing the pollution-control equipment
the consent decree required. After some delays and
extensions of time, on December 10, 1982, the EPA
approved the proposed bubble. However, during public
comment, the bubble was shown to violate air quality
standards. On March 30, 1983, the EPA advised
National Steel that it would not grant final approval. In
April, 1983, the Justice Department sought enforcement
of the consent decree, the requirements of which
National Steel had hoped to avoid by submission of the
bubble.

hl

A36

As its defense to the consent-decree enforcement
action, National Steel argued that ‘‘mixed signals’ from
the EPA and the EPA's delay in approving the bubble
had induced National Steel to forego installation of the
required emission control equipment. As a result, argued
National Steel, it should not be subject to penalties for
failure to comply with the terms of the consent decree.
The Sixth Circuit disagreed, reasoning that National
Steel had merely lost its gamble that the bubble would
be approved. The Sixth Circuit upheld the award of
consent-decree penalties against National Steel, subject
to a 180-day limitation contained in the consent decree.
The Sixth Circuit expressly rejected National Steel's
argument that failure of the EPA to approve or
disapprove of the bubble without four months of
submission excused it from the consent-decree penalties.
In rejecting that argument, the Sixth Circuit stated in
cursory fashion that the four-month rule applicable to
approval of general state plans is not applicable to
revisions of state plans. 767 F.2d at 1183, n. 1.

While the National Steel footnote suggests that the
Clean Air Act does not require the EPA to act on
proposed SIP revisions within four months, National
Steel does not require this Court to reverse its previous
summary judgment ruling. First, the consent decree in
National Steel expressly provided its requirements would
not be excused by submission of a bubble proposal;
therefore, the question of the proposed bubble’s effect on
a SIP’s enforceability was not before the Court.
Accordingly, the footnote is mere dictum. Second, even if
the four-month rule does not apply to submitted SIP
revisions, the real issue is whether the EPA should be
allowed to bring enforcement proceedings against a
polluter who has complied with its state's proposed SIP
revision, which the EPA may yet approve, but on which
the EPA has neglected to act.

A37

For guidance on this issue, this Court has considered
the seminal case of Train us. National Resources Defense
Counsel, 421 U.S. 60, 95 S.Ct. 1470, 14 L.Ed.2d 731
(1975). Train, like National Steel, does not specifically
address the issue of the judicial ‘‘limbo”’ created when a
state submits a SIP revision and the EPA takes no
action on it. However, Train makes it very clear that the
primary rule-making role for Clean Air Act standards is
allocated to the States, not to the EPA.

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
determining and enforcing the specific, source-by-
source emission limitations which are necessary if
the national standards it has set are to be met.
Under $110(a)(2), the Agency is required to approve
a state plan which provides for the _ timely
attainment and subsequent maintenance of ambient
air standards, and which also satisfies that section's
other general requirements. The Act gives the
Agency no authority to question the wisdom of a
State's choices of emission limitations if they are
part of a plan which satisfies the standards of
$110(a)(2).... Thus, so long as the ultimate effect of
a State's choice of emission limitations is compliance
with the national standards for ambient air, the
State is at liberty to adopt whatever mix of emission
limitations it deems best suited to its particular
situation.

... [TJhe third paragraph of $110(a), and the one
immediately following the paragraphs which specify
that States shall file implementation plans and that
the Agency shall approve them if they satisfy
certain broad criteria, is the section which requires
the Agency to “approve any revision of an
implementation plan”’ if it ‘determines that it meets
the requirements” of $110(a)(2). ... [TJhis provision

A38

applies to any revision, ... Agency approval is
subject only to the condition that the revised plan
satisfy the general requirements applicable to
original implementation plans. Far from evincing
congressional intent that the Agency assume control
of a State’s emission limitations mix once its initial
plan is approved, the revision section is to all
appearances the mechanism by which the States
may obtain approval of their developing policy
choices as to the most practicable and desirable
methods of restricting total emissions to a level
which is consistent with the national ambient air
standards.

Train at 79-80 (footnotes omitted).

Allocating to the EPA secondary responsibility
recognizes the state’s interest in protecting its own
citizens, both from air pollution and from unnecessary or
unduly restrictive regulations on the operation of its
industry and business. The EPA's interest is merely in
determining whether the state’s regulatory scheme
furthers the overall purpose and plan of the Clean Air
Act. Delay on the part of the EPA in making that
determination should not hamper the state’s right and
duty to regulate and protect its own citizens as it sees
fit. Accord United States vs. General Motors Corp., No.
87-2068-MC (D.Mass. May 16, 1988).

In an effort to balance the state’s interest against
the EPA's, appellate courts in three federal circuits have
concluded that the EPA is required to act on SIP
revisions within four months of submission. See
generally, American Cyanamid vs. U. S. EPA, 810 F.2d
493 (5th Cir. 1987); Duquesne Light Co. us. EPA, 698
F.2d 456 (D.C. Cir. 1983); Council of Commuter
Organizations vs. Gorsuch, 683 F.2d 648, 651-52 (2nd
Cir. 1982) (“CCO #1’’). These decisions implicitly recognize
the unfairness of imposing penalties on a polluter who

.

A39

complies with a state-proposed SIP revision that the
EPA may ultimately approve, because it adequately
provides for attainment and maintenance of national air
quality standards. To mitigate that unfairness, Amencan
Cyanamid concluded that the EPA’s failure to act on
proposed revisions within four months precludes
enforcement actions until the EPA rejects the proposed
revision; Duquesne prohibited the collection of penalties
until the EPA rejects the revision; the Gorsuch Court
expressed concern that it took the EPA years to approve
SIP revisions which were supposed to be effective in
1978, Council of Commuter Organizations vs. Thomas,
799 F.2d 879, 888 (2nd Cir. 1986) (““CCO A#II’’).

The unfairness that concerned the Second, Fifth and
District of Columbia Circuits, as well as this Court, is
ameliorated by simply requiring that the EPA rule on
submitted SIP revisions before it begins enforcement
proceedings against polluters to which the revisions are
applicable. If the EPA approves the revision as meeting
the requirements of the original SIP, then compliance
with the revision during the pendency of that approval
will have furthered the goals of the Clean Air Act, and
the question of penalties and enforcement proceedings
rightfully becomes moot.

If the EPA rejects the revision, those aggrieved will
be entitled to seek judicial review of the EPA's action.
In the meantime, the EPA would apparently be free to
bring enforcement proceedings for violation of the

A40

unrevised SIP.' How penalties should be assessed for
noncompliance with the approved revision or with the
original SIP, if the revision is rejected, is not ripe for
decision until the EPA acts on the proposed revision,
thereby establishing its right to bring enforcement
proceedings. Once that right is established, and it is
determined whether revised or unrevised SIP guidelines
apply, then the Court can address the question of
whether penalties should be imposed for the period the
SIP revision stood submitted for approval. That answer
ought to depend on the equities of each individual case.

Barring enforcement proceedings while the EPA
considers a proposed SIP revision comports with
Congressional intent that the EPA defer to the state's
wisdom in deciding how best to achieve the goals of the
Clean Air Act. It also encourages the EPA to rule
promptly on revisions submitted to it. Judicial review of
any rejection by the EPA will assure that prompt action
by the EPA is not hasty or unfounded. C.f, American
Cyanamid at 499 (recognizing that the Duquesne
approach of allowance of retroactive penalties may
encourage the EPA to reject revisions it should approve).
Similarly, if the proposed revision fails to meet the
necessary requirements for approval, the risk that
“retroactive penalties might be imposed would
discourage polluters from petitioning for revisions which

‘Train recognizes that nght: ‘Should either [the state or the EPA]
determine that granting the variance [under the revision authority of
$110(a)(3)} would prevent attainment or maintenance of national air
standards, the polluter is presumably within his rights in seeking
judicial review.” Train, 421 U.S. at 92. This litigaton would be on the
“‘polluter’s time, not the public’s’’, for during the pendency of the
litigation ‘the original regulations remain in effect ...’ /d. Implicit
in Train's logic is the presumption that the EPA will act on revision
proposals; not even Train suggests that the Clean Air Act confers on
the EPA power to exercise ‘‘pocket vetoes’ over state-proposed
revisions, by simply failing to take action on them.

A4l

are not good faith efforts to comply with the standards
of the Clean Air Act. Cf, Duquesne at 472 (polluter could
be liable for penalties calculated back to the approval
deadline, with interest).

Finally, the EPA argues that ‘‘noncomplying
sources’ who escape penalties or avoid enforcement
proceedings because of pending SIP revisions gain ‘‘an
unfair advantage over those that seek to comply’’ with
the unrevised SIP. This argument disregards the fact
that a SIP revision which protects a particular polluter is
promulgated by the state, not by the private polluter
itself. Unless the state concludes that the revision is
warranted, in the interest of the public it serves, the
revision will not be submitted to the EPA for approval
to begin with. Penalizing those who comply with what a
state deems reasonable air-pollution control guidelines is
contrary to the spirit and intent of the Clean Air Act,
and to the allocation of responsibility the Act
contemplates.

The EPA urges this Court to reconsider its refusal to
hold its decision on Alcan’s summary judgment motion
in abeyance under Fed. R. Civ. P. 56(f). The EPA claims
it has been unable to get affidavits concerning Alcan’s
alleged violation of the revised SIP guidelines. However,
the present action is not based on noncompliance with
the revised SIP. Accordingly, affidavits concerning any
revised SIP noncompliance are immaterial to the present
action, and cannot contain facts essential to justify
defendant’s opposition to Alcan’s motion for summary
judgment. Fed. R. Civ. P. 56f).

A42

For the foregoing reasons, by separate order this
Court reaffirms and reiterates its order of March 15.

1988, granting summary judgment in favor of Alcan.
This 15th day of September, 1988.

s/ CHARLES R. Simpson, III
United States District Judge

cc: Counsel of Record

A43
ORDER OF UNITED STATES DISTRICT
COURT, WESTERN DISTRICT OF KENTUCKY
(Dated September 15, 1988)
Civil Action No. 87-0434-L(CS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

UNITED STATES OF AMERICA,
Plaintiff,

VS.

ALCAN FOIL PRODUCTS DIVISION OF
ALCAN ALUMINUM CORPORATION,
Defendant and Third-

Party Plaintiff,

Vs.

ATLANTIC RICHFIELD COMPANY,
Third-Party Defendant.

ORDER

This Court having reconsidered its previous orders
granting summary judgment in defendant's favor and
denying plaintiff's motion for a continuance, IT IS
HEREBY ORDERED that the motion by Alcan Foil
Products Division of Alcan Aluminum Corporation
(‘‘Alcan’’) for summary judgment in its favor, pursuant
to Rule 56, Fed. R. Civ. P., is GRANTED, and this
action shall be REMANDED from the Court's docket by
the Clerk of the Court.

A44

Further, inasmuch as the EPA’s complaint against
Alcan has been dismissed, and Alcan’s third-party
complaint against third-party defendant, Atlantic
Richfield Company, is for indemnification of Alcan as
against the EPA’s claims, IT IS HEREBY FURTHER
ORDERED that Alcan’s third-party complaint is hereby
DISMISSED WITHOUT PREJUDICE, and this action
shall be removed from this Court’s docket without
further order.

This 15th day of September, 1988.

s/ CHARLES R. Simpson, III
United States District Judge

cc: Counsel of Record

A45

42 U.S.C. Sec. 741Wa)23)1982)
IMPLEMENTATON PLANS

Sec. 110. (a)(1) Each State shall, after reasonable
notice and public hearings, adopt and submit to the
Administrator, within nine months after the
promulgation of a national primary ambient air quality
standard (or any revision thereof) under section 109 for
any air pollutant, a plan which provides for
implementation, maintenance, and enforcement of such
primary standard in each air quality control region (or
portion thereof) within such State. In addition, such
State shall adopt and submit to the Administrator
(either as a part of a plan submitted under the preceding
sentence or separately) within nine months after the
promulgation of a national ambient air quality secondary
standard (or revision thereof), a plan which provides for
implementation, maintenance, and enforcement of such
secondary standard in each air quality control region (or
portion thereof) within such State. Unless a separate
public hearing is provided, each State shall consider its
plan implementing such secondary standard at the
hearing required by the first sentence of this paragraph.

(2) The Administrator shall, within four months
after the date required for submissions of a plan under
paragraph (1), approve or disapprove such plan or any
portion thereof. The Administrator shall approve such
plan, or any portion thereof, if he determines that it was
adopted after reasonable notice and hearing and that—

(A) except as may be provided in subparagraph (1),
(i), in the case of a plan implementing a national primary
ambient air quality standard, it provides for the
attainment of such primary standard as expeditiously as
practicable but (subject to subsection (c)) in no case later
than three years from the date of approval of such plan

A46

(or any revision thereof to take account of a revised
primary standard); and (ii) in the case of a plan
implementing a national secondary ambient air quality
standard, it specifies a reasonable time at which such
secondary standard will be attained;

(B) it includes emission limitations, schedules, and
timetables for compliance with such limitations, and such
other measures as may be necessary to insure attainment
and maintenance of such primary or secondary standard,
including, but not limited to, transportation controls, air
quality maintenance plans, and preconstruction review of
direct sources of air pollution as provided in
subparagraph(D).

[PL 95-95, August 7, 1977]

(C) it includes provision for establishment and
operation _f appropriate devices, methods, systems, and
procedures necessary to (i) monitor, compile, and analyze
data on ambient air quality and, (ii) upon request, make
such data available to the Administrator;

(D) it includes a program to provide for the
enforcement of emission limitations and regulation of the
modification, construction, and operation of any
stationary source, including a permit program as
required in parts C and D and a permit or equivalent
program for any major emitting facility, within such
region as necessary to assure (i) that national ambient air
quality standards are achieved and maintained, and (ii) a
procedure, meeting the requirements of paragraph (4), for
review (prior to construction or modification) of the
location of new sources to which a standard of
perforrcance will apply;

[PL 95-95, August 7, 1977]

)

A47

(E) it contains adequate provisions (i) prohibiting
any stationary source within the State from emitting any
air pollutant in amounts which will (i) prevent attainment
or maintenance by any other State of any such national
primary or secondary ambient air quality standard or (ii)
interfere with measures required to be included in the
applicable implementation plan for any other State under
part C to prevent significant deterioration of air quality
or to protect visibility, and (ii) insuring compliance with
the requirements of section 126, relating to interstate
pollution abatement;

(PL 95-95, August 7, 1977}

(F) it provides (i) necessary assurances that the
State will be adequate personnel, funding, and authority
to carry out such implementation plan, (ii) requirements
for installation of equipment by owners or operators of
stationary sources to monitor emissions from such
sources, (iii) for periodic reports on the nature and
amounts of such emissions; (iv) that such reports shall be
correlated by the State agency with any emission
limitations or standards established pursuant to this act,
which reports shall be available at reasonable times for
public inspection; (v) for authority comparable to that in
section 303, and adequate contingency plans to
implement such authority; and (vi) requirements that the
State comply with the requirements respecting State
boards under Section 128;

[PL 95-95, August 7, 1977]

(G) it provides, to the extent necessary and
practicable, for periodic inspection and testing of motor
vehicles to enforce compliance with applicable emission
standards;

A48 ,

(H) it provides for revision, after public hearings of
such plan (i) from time to time as may be necessary to
take account of revisions of such national primary or
secondary ambient air quality standard or the
availability of improved or more expeditious methods of
achieving such primary or secondary standard; or (ii)
except as provided in paragraph (3) (C), whenever the
Administrator finds on the basis of information available
to him that the plan is substantially inadequate to
achieve the national ambient air quality primary or
secondary standard which it implements or to otherwise
comply with any additional requirements established
under the Clean Air Act Amendments of 1977; and

(PL 95-95, August 7, 1977]

(I) it provides that after June 30, 1979, no major
stationary source shall be constructed or modified in any
nonattainment area (as defined in section 171 (2) to
which such plan applies, if the emissions from such
facility will cause or contribute to concentrations of any
pollutant for which a national ambient air quality
standard is exceeded in such area, unless, as of the time
of application for a permit for such construction or
modification, such plan meets the requirements of part D
relating to nonattainment areas):

PL 95-95, August 7, 1977]

J} it meets the requirements of section 121
relating to consultation), section 127 (relating to public
notification), part C (relating to prevention of significant
ietenoration of air quality and visibility protection); and

PL 95-95, August 7, 1977]

K) it — the owner or operator or each major
stationary source to pay to the permitting authority as a
ondition of any permit required under this Act a fee

sufficient to cover—

ineeeateeeeemenieneeemeeeee

; A49

(i) the reasonable costs of reviewing and acting
upon any application for such a permit, and

(ii) if the owner or operator receives a permit for
such source, whether before or after the date of
enactment of this subparagraph, the reasonable costs
(incurred after such date of enactment) of implementing
and enforcing the terms and conditions of any such
permit (not including any court costs or other costs
associated with any enforcement action).

[PL 95-95, August 7, 1977]

(3) (A) The Administrator shall approve any
revision of an implementation plan applicable to an air
quality control region if he determines that it meets the
requirements of paragraph (2) and has been adopted by
the State after reasonable notice and public hearings.

(B) As soon as practicable, the Administrator shall,
consistent with the purposes of this Act and the Energy
Supply and Environmental Coordination Act of 1974,
review each State’s applicable implementation plans and
report to the State on whether such plans can be revised
in relation to fuel burning stationary sources (or persons
supply fuel to such sources) without interfering with the
attainment and maintenance of any national ambient air
quality standard within the period permitted in this
section. If the Administrator determines that any such
plan can be revised, he shall notify the State that a plan
revision may be submitted by the State. Any plan
revision which is submitted by the State shall, after
public notice and opportunity for public hearing, be
approved by the Administrator if the revision relates
only to fuel burning stationary sources (or persons
supplying fuel to such sources), and the plan as revised
complies with paragraph (2) of this subsection. The
Administrator shall approve or disapprove any revision
no later than three months after its submission.

~~ ——_—s

A50

(C) Neither the State, in the case of a plan (or
portion thereof) approved under this subsection, nor the
Administrator, in the case of a plan (or portion thereof)
promulgated under subsection (c), shall be required to
revise an applicable implementation plan because one or
more exemptions under section 113 (relating to Federal
facilities), enforcement orders under section 113(d),
suspensions under section 110(f) or (g) (relating to
temporary energy or economic authority), orders under
section 119 (relating to primary nonferrous (illegible), or
extensions of compliance in decrees entered under section
113(a) (relating to iron- and steel-producing operations)
have been granted, if such plan would have met the
requirements of this section if no such exemptions,
orders, or extensions had been granted.

[PL 95-95, August 7, 1977; amended by PL 97-23]

(D) Any applicable implementation plan for which
an attainment date later than December 31, 1982, is
provided pursuant to section 172(a)(2) shall be revised by
July 1, 1979, to include the comprehensive measures and
requirements referred to in subsection (c)(5)(B).

[PL 95-190, November 16, 1977]

A5l

| MOTION FILED IN THE UNITED
STATES COURT OF APPEALS FOR
| THE SIXTH CIRCUIT FOR STAY
| OF MANDATE PENDING PETITION
FOR WRIT OF CERTIORARI

(Dated December 11, 1989)
No. 88-6300

IN THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff/Appellant,

v.
ALCAN FOIL PRODUCTS DIVISION OF

ALCAN ALUMINUM CORPORATION,
Defendant/Appellee,

ATLANTIC RICHFIELD COMPANY,
Third-Party Defendant.

MOTION FOR STAY OF MANDATE PENDING
PETITION FOR WRIT OF CERTIORARI

ALCAN FOIL PRODUCTS (‘Alcan’) through their
undersigned attorneys, and pursuant to Rule 41(b) of the
Federal Rules of Appellate Procedure, respectfully moves
for a stay of the issuance of the mandate herein for a
period of thirty days to enable appellees to prepare and
file a petition for writ of certiorari with the United States
Supreme Court. In support of this motion appellees state
the following:

Set es

A52

1. On November 21, 1989, this Court entered
judgment in the above-captioned case reversing in part
an order of dismissal by the District Court and
remanding the case for further proceedings to determine
the merits.

2. Appellees will be filing a petition with the United
States Supreme Court for a writ of certiorari. Since the
issues to be raised therein relate to plaintiffs’ right to
litigate the merits of the controversy, a Supreme Court
ruling in Alcan’s favor would render moot any litigation
of or decision on the merits. Moreover, the United States
Supreme Court has recently granted certiorari in United
States v. General Motors Corp., 876 F.2d 1060 (1st Cir.
1989) and the outcome in that case will undoubtedly
apply to this case. Under such circumstances, further
proceedings in the District Court at this time would
result in a waste of judicial resources and unnecessary
demands on the parties to the two lawsuits. Such
proceedings should therefore be held in abeyance pending
the filing of the petition for writ of certiorari and its
disposition by the Supreme Court.

3. Appellees believe there is a strong possibility
that the United States Supreme Court will issue a writ of
certiorari. As this Court is aware, its decision relied
heavily on the reasoning of the First Circuit in United
States us. General Motors Corp., 876 F.2d 1060 (1st Cir.
1989). Alcan has been informed that the Supreme Court
granted certiorari after being informed of the decision by
this Circuit in this case. Alcan believes that the facts in
this case would present the Supreme Court with a more
comprehensive understanding of the functioning of the
Clean Air Act, and the potential disruptive impact of the
EPA's failure to act on SIP revisions in a timely fashion
on the rational conduct of business, than would

A53

consideration of the General Motors case alone. In
addition, it would re-establish the original order of these
cases. The decision of the District Court in General
Motors relied heavily on the prior holding of the District
Court in this case. However, the government elected to
file a motion for reconsideration with the District Court
only in this case which resulted in the General Motors
case preceding this case to the appellate level. Alcan
believes this fact is especially significant in light of the
concurring opinion which clearly points out the
unwillingness of this Court to adopt the First Circuit
opinion in toto. Alcan will ask the Supreme Court to
grant its petition for four reasons:

1. This case presents a factual scenario that should
be considered with General Motors.

2. This decision further adds to the conflict
between the Circuits.

3. This case presents major issues of federalism,
comity and the implementation of the Clean Air Act.

4. The issues presented involve important,
recurring questions concerning the enforcement
under the Clean Air ‘Act.

WHEREFORE, appellees request that the issuance
of the mandate in this case be stayed for a period of
thirty days to afford appellees the necessary time for
preparing and filing said petition for writ of certiorari.

Dated: December 11, 1989
Respectfully submitted,

‘si LAWRENCE A. SALIBRA, II

1301 East Ninth Street, 29th Floor
Cleveland, Ohio 44114
(216) 523-6918

Attorney for Defendant/Appellee

A54

CERTIFICATE OF SERVICE

I certify that copies of the foregoing !Aotion for Stay
of Mandate Pending Petition for Writ of Certiorari have
been served upon counsel via Federal Express courier
service, postage prepaid, properly addressed, this 11th
day of December, 1989, to the following:

DONALD A. Carr, Acting Assistant Attorney General
DAVID SHILTON

ROBERT FOSTER

JOHN T. STAHR, Attorneys, Department of Justice
Land and Natural Resources Division

Washington, D.C. 20530

ALLAN E. DION

Assistant Regional Counsel

U.S. Environmental Protection Agency,
Region IV

345 Courtland Street, N.E.

Atlanta, Georgia 30365

Marcus P. McGraw

CAROLYN M. BROWN
GREENBAUM, DOLL & MCDONALD
1400 Vine Center Tower
Lexington, Kentucky 40593

JOSEPH M. WHITTLE

RICHARD A. DENNIS

Office of the U.S. Attorney

510 W. Broadway

Bank of Louisville Building, 10th Floor
Louisville, Kentucky 40202

/s/ LAWRENCE A. SALIBRA, II

Alcan Aluminum Corporation

1301 East Ninth Street, 29th Floor
Cleveland, Ohio 44114

(216) 523-6918

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0908%3A1. Public record. Not legal advice.