Opposition Brief — Alcan Foil Products Division of Alcan Aluminum Corp. v. United States

No. 89-1104 mee) 0)

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ESHER

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

ALCAN FOIL PRODUCTS DIVISION OF

ALCAN ALUMINUM CORPORATION, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitoy Gr jie ral

RICHARD B. STEWAR1

Assistant Attorney General

DAVID C. SHILTON

JOHN T. STAHR

Attoriu 7 Bet

Di partn yliot Jd fils

Washington, D.C. 2052

(20 2)6 pepo /

BEST AVAILABLE COPY

QUESTIONS PRESENTED

(1)

TABLE OF CONTENTS

Page

a el SE 1

Jurisdiction ......... Nees neceiae elect 1

Teen ne eo nanedeesadeienmenensstuecs ca 2

TN I Ae — 8

Conclusion ...... a cccnpaninentntosubioes 10

TABLE OF AUTHORITIES

Cases:

Blum v. Bacon, 457 U.S. 1382 (1982) ...................... 8

Brock v. Pierce County, 476 U.S. 253 (1986) ......... 7,9

Dayton Board of Education v. Brinkman, 433 U.S.

406 (1977) ....... SEM SO er = -

Thigpen V. Roberts, 468 U.S. 27 (1984) x

United States v. General Motors Corporation, 876

F.2d 1060 (1st Cir. 1989), cert. granted, No. 89-

369 (Dec. 4, 1989) . nc Ee 7

Washington Vv. Yakima Indian Nation, 439 U.S.

I Sat SAE nen ; 8

Statutes and rule:

Clean Air Act, 42 U.S.C. 7401 et seq.:

§ 108, 42 U.S.C. 7408 2

§ 109, 42 U.S.C. 7409 . 2

§ 110(a) (1), 42 U.S.C. 7410(a) (1) ys

$110(a) (2),42 U.S.C. 7410(a) (2) 2

§110(a) (2) (A), 42 U.S.C. 7410(a) (2) (A) 3

$110(a) (3) (A), 42 U.S.C. 7410(a) (3) (A) 3

§110(a) (2) (A)-(K), 42 U.S.C. 7410(a) (2)

(A)-(K) a 2

§110(d), 42 U.S.C. 7410(d) ... 3

§ 113, 42 U.S.C. 7413 3,9

§€113(a), 42 U.S.C. 7413 (a) 3,5

§ 113(b), 42 U.S.C. 7413 (b) 23.5,7

§ 120, 42 U.S.C. 7420 3

§ 120(d) (2), 42 U.S.C. 7420 (d) (2) .. 3

(111)

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1104

ALCAN FOIL PRODUCTS DIVISION OF

ALCAN ALUMINUM CORPORATION, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A22) is reported at 889 F.2d 1513. The opinions of

the district court (Pet. App. A23-A30, A34-A42)

are reported at 694 F. Supp. 1280.

JURISDICTION

The judgement of the court of appeals was entered

on November 21, 1989. The petition for a writ of

certiorari was filed on January 17, 1990. The juris-

(1)

2

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

This case arises from a civil enforcement action

pursuant to Section 113(b) of the Clean Air Act, 42

U.S.C. 7413(b), asserting that emissions of volatile

organic compounds (VOCs) from petitioner’s plant

violated emission limits set forth in the Kentucky

state implementation plan (SIP). The case presents

the questions whether a four-month time limit gov-

erns EPA’s review of proposed revisions to SIPs,

and, if it does, whether the United States is barred,

when EPA fails to meet that deadline, from bringing

or continuing an enforcement action against a source

of air pollution for violating the terms of the existing

SIP. Those questions are currently pending before

the Court in General Motors Corporation v, United

States, No. 89-369 (argued Mar. 21, 1990).

1. Under the Clean Air Act, EPA is responsible

for establishing National Ambient Air Quality

Standards (NAAQS) for pollutants which cause or

contribute to air pollution. $$ 108, 109, 42 U.S.C.

7408, 7409. Section 110(a)(1) of the Act requires

each State to develop and submit to EPA for ap-

proval, within nine months after the promulgation

of NAAQS, a state implementation plan designed to

achieve and maintain the NAAQS within the State.

42 U.S.C. 7410(a) (1). Section 110(a) (2) expressly

requires EPA, within four months after receiving the

original SIP, to determine whether it meets the stat-

utory requirements set forth in subsection (a) (2)

(A)-(K). 42 U.S.C. 7410(a)(2). Those provisions

require, inter alia, that the SIP provide for attain-

ment of applicable primary NAAQS “as _ expedi-

tiously as practicable” but in no event later than

3

three years from the date of approval of the SIP.

42 U.S.C. 7410(a) (2) (A).

Section 110(a)(3)(A) requires EPA to approve

revisions to existing SIPs if it determines that the

revised SIP meets the requirements applicable to

original SIPs, and that the revision was adopted by

the State after notice and public hearings. 42 U.S.C.

7410(a)(3)(A). This subsection of the Act contains

no express time requirement for acting on revisions.

Once approved by EPA, an original or revised SIP is

enforceable civilly or criminally by either the State

or federal government, or, in the absence of govern-

ment enforcement, by private citizens civilly. 42

U.S.C. 7410(d), 7413, 7604.

Section 113(a) of the Act authorizes EPA to issue

a notice to any person who is violating a SIP, and, if

the violation continues beyond 30 days after notice,

to enforce the SIP by issuing an administrative order

or instituting a district court civil action. 42 U.S.C.

7413(a). EPA may seek civil penalties of up to

$25,000 per day, and in determining the amount of

a civil penalty, the district court is directed to “take

into consideration (in addition to other factors) the

size of the business, the economic impact of the pen-

alty on the business, and the seriousness of the viola-

tion.” 42 U.S.C. 7413(b).’

29 This enforcement action concerns emissions at

petitioner’s laminating plant in Louisville, Kentucky,

which manufactures cigarette package foil liners,

1 An additional means of enforcement is provided in Section

120 (42 U.S.C. 7420), which authorizes EPA to administra-

tively assess a noncompliance penalty against any major sta-

tionary source in violation of SIP emission limits. The penalty

begins to accrue when EPA issues a Notice of Noncompliance,

and is intended to remove the economic benefit of delayed com-

pliance. See 42 U.S.C. 7420(d) (2).

4

electric cable wrap, and other products. Pet. App.

A24. As part of this process, petitioner operates

rotogravure printing presses which emit or have the

potential to emit VOCs, which, in turn, react with

other chemicals in the atmosphere to form ozone. Jd.

at A2, A25. Petitioner's facility must meet the re-

quirements of Regulation 6.29 of the Jefferson

County Air Pollution Control District (the Region).

approved as part of the federally-enforceable Ken-

tucky SIP. 7d. at A4. The Regulation requires that

ach separate emission source—in this case. each

rotogravure press—must comply with the established

VOC emission limitations. hid.

On March 3, 1986, Kentucky submitted to EPA. on

behalf of the Region, a proposed revision to the Ken-

tucky SIP which would have allowed petitioner to

demonstrate compliance through the utilization of an

average of VOC emissions, over a 30-day period,

from all point sources of the facility considered to-

gether—a method known as the “bubble concept.”

Pet. App. A5. Following initial review, EPA advised

the Region, by letter dated May 22, 1986. that the

proposed “bubble” plan was deficient, and EPA re-

quested additional documentation demonstratine.

among other matters, that the use of long-term aver-

aging would not jeopardize attainment of the am-

bient air quality standard. Gov’t C.A. Br. 62. Fol-

lowing review of the Region’s further submission,

EPA advised the Region on July 7, 1986, that the

proposed bubble was still deficient, and that peti-

tioner ‘“‘would be out of compliance, even if the 20-

* The applicable deadline for achieving compliance with the

relevant ozone NAAQS is “as expe ditiously as practicable but

not later than Dec« mber 31, 1987.” 42 U.S.C. 7502(a) tak

v0

day averaging time was granted.” Pet. App. A5;

Gov't C.A. Br. 6-7.

On July 14, 1986, EPA issued a Notice of Viola-

tion to petitioner stating that seven rotogravure ma-

chines were not in compliance with Regulation 6.29,

and that failure to achieve compliance could result in

an administrative compliance order pursuant to Sec-

tion 113(a) of the Clean Air Act (42 U.S.C. 7413

(a)), or judicial action pursuant to Section 113(b)

(42 U.S.C. 7413(b)). Pet. App. A6, A25: Gov't C.A.

Br. 7. After additional discussions failed to resolve

the matter, the United States filed suit on July 15,

1987, under Section 113(b) of the Clean Air Act.

alleging that petitioner was in violation of the Act

and of the Kentucky SIP. Pet. App. A6: Gov’t C.A.

Br. 8. The complaint sought an injunction requiring

petitioner to comply with the Kentucky SIP, and re-

quested civil penalties of $25,000 per day of viola-

tion. Gov’t C.A. Br. 8-9.

On August 26, 1987, EPA’s Regional Administra-

tor recommended to EPA Headquarters that the pro-

posed Alcan “bubble” SIP revision be disapproved.

Pet. App. A26. On October 18, 1988, EPA published

a proposed rule disapproving the SIP revision (52

Fed. Reg. 40,745); on March 16, 1989. EPA pub-

lished a final rule disapproving the revision (54 Fed.

Reg. 10,982).

‘The State submitted another SIP “bubble” revision on

petitioner’s behalf on July 28, 1989: among other changes

from the SIP proposal here, it utilizes a dailv rather than a

0-day averaging period. 55 Fed. Reg, 2842 (Jan. 29, 1990).

IPA published a proposed rule approving that SIP revision,

referred to by petitioner as “SIP IIT” (Pet. 9), on January 29,

L990. 55 Fed. Reg. 2842. The so-called “SIP 1” (Pet. 8) refers

to a SIP revision submitted by the State jn 1982 covering

many aspects of the SIP, including a generic “bubble” pro-

6

2. On March 15, 1988, the district court granted

petitioner’s motion for summary judgment, ruling

that “since EPA’s notice of noncompliance was

served more that four (4) months after the [Region]

submitted its proposed []SIP revision [the EPA]

may not commence enforcement proceedings until it

acts upon the proposed revision.” Pet. App. A28. On

September 15, 1988, the district court denied recon-

sideration: the court stated that questions concerning

the assessment of penalties in a subsequent enforce-

ment action would not be ripe until EPA acted on

the proposed revision, and that the issue “ought to

depend on the equities of each individual case.” Pet.

App. A40. Both in its original decision and in its

decision denying the motion for reconsideration, the

court denied the United States’ motion, pursuant to

Fed. R. Civ. P. 56(f), for a continuance to allow

discovery concerning whether petitioner was in com-

pliance with the proposed SIP revision; the court

stated that “the present action is not based on non-

compliance with the revised SIP,” and that the possi-

bility of such noncompliance is “immaterial to the

present action.” Pet. App. A41. See also id. at A28.’

posal. In 1986, the Region filed suit, pursuant to the citizen

suit provision of the Act (42 U.S.C. 7604), to compel EPA

action on that proposal, but the court and the parties focused

on this enforcement action instead. See Pet. App. A15.

4 Petitioner’s suggestion (Pet. 10 n.2) that the district court

made a “conclusive determination” of petitioner’s compliance

with the proposed SIP is incorrect. The district court ex-

pressly declined to make any findings of fact on this question

as “essentially unnecessary to this action” (Pet. App. A350; see

also id. at A41). EPA continues to assert, as it has throughout

this litigation, that petitioner’s facility complies neither with

the existing Kentucky SIP (a contention petitioner has never

disputed), or with the proposed SIP revision (see id. at A27-

A28).

ee

7

3. On November 21, 1989, the court of appeals re-

versed and remanded, directing the district court to

reinstate the United States’ enforcement action. Pet.

App. Al7. The court agreed with the district court

that the four-month deadline explicitly imposed by

the Act on EPA’s review of original SIPs should also

apply to the review of SIP revisions. Jd. at A6-A10.

Relying on this Court’s decision in Brock y. Pierce

County, 476 U.S. 253 (1986), however, the court

held that “[c]learly remedies less drastic th{a]n dis-

missal are available for EPA’s failure to act within

four months.” Pet. App. Al5. The court found that

the “most effective remedy” was that emphasized by

the First Circuit in United States vy. General Motors

Corporation, 876 F.2d 1060 (1989), cert. granted,

No. 89-369 (Dec. 4, 1989) and provided by Section

113(b) of the Clean Air Act itself—granting the

district court discretion to adjust the penalties for

noncompliance and to balance such factors as the

prejudice to the violator and EPA’s reasons for de-

lay. Pet. App. A15-A16. The court observed that,

“Ti]f the source does not establish that it is in com-

pliance with the proposed revision, the court may

assess penalties from the date of the notice of non-

compliance.” Id. at A16. If the source does demon-

strate such compliance, the government “has the

burden of justifying EPA’s delay in acting on the

proposal.” Ibid. The court must then “balance the

reasonableness of the delay against whatever preju-

dice the source is able to establish” to determine the

appropriate penalty. bid.

In a concurring opinion, Judge Ryan stated that

the court’s emphasis on compliance with the propesed

SIP “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

8

file a proposed revised SIP ‘wish list’ * * * and take

comfort that the enforcement litigation will have to

do with compliance with the proposed SIP and not

the existing one.” Pet. App. A21. Noting that EPA

ultimately disapproved the proposed SIP, Judge Ryan

concluded that a pollution source should not be al-

lowed to avoid appropriate penalties for violating an

existing SIP “simply because it has complied with a

proposed SIP that it wished had been adopted and

the agency has not adopted.” [bid.

ARGUMENT

1. In General Motors Corporation v. United States,

No. 89-369 (argued Mar. 21, 1990), the questions

presented are whether a four-month deadline applies

to EPA’s review of SIP revisions, and, if so, whether

the Clean Air Act bars EPA from enforcing the

existing SIP if the agency has not taken final action

on the proposed SIP revision within four months.

Because the petition presents the same legal ques-

tions that are before the Court in General Motors,

the Court should hold the petition and dispose of it as

appropriate in light of its decision in General Motors.

2. The court of appeals correctly reinstated the en-

forcement action against petitioner. Even if there is

a four-month review deadline for SIP revisions,’ the

5 A conclusion that there is no four-month limit for final

action on SIP revisions is, in our view, required by the express

language, structure, and rationale of the statute (see 89-369

U.S. Br. at 14-24). We accordingly rely on the lack of a four-

month deadline as an alternative ground for upholding the

judgment of the court of appeals reinstating the enforcement

action. See Thigpen v. Roberts, 468 U.S. 27, 30 (1984) ; Blum

v. Bacon, 457 U.S. 132, 187 n.5 (1982); Washington Vv. Yakima

Indian Nation, 439 U.S. 463, 476 n.20 (1979); Dayton Board

of Education Vv. Brinkman, 433 U.S. 406, 419 (1977).

9

court correctly determined, following the principles

set forth by this Court in Brock y. Pierce County,

476 U.S. at 260, that regardless of the cause for de-

lay, “the 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.”

Pet. App. Al5. The court of appeals properly con-

cluded that the “less drastic’ remedy was to allow

the district court, in determining an appropriate

penalty, to consider both the reasonableness of the

period taken by EPA for reviewing the SIP revi-

sion,” and, if unreasonable, any resulting prejudice

to petitioner.’

® Petitioner’s statement (Pet. 11 n.4) that the court of ap-

peals “went so far as almost determining that the EPA’s delay

was unreasonable” is incorrect. Petitioner’s claim that EPA

purposely delayed action until applicable legal requirements

were altered, was raised for the first time on appeal, and is

sharply disputed by EPA. The court of appeals expressly de-

clined to resolve that issue, leaving it to the district court to

resolve during the determination of penalties. Pet. App. A16-

Al17.

7 As we have pointed out in our brief in General Motors (at

43 n.48), a copy of which has been furnished to petitioner’s

counsel, the court of appeals in this case erred slightly in stat-

ing, in dictum, that “the court may assess penalties from the

date of the notice of noncompliance” (Pet. App. A16). That

comment confuses the procedure under Section 120(d) (3) (C)

of the Act, in which administrative penalties accrue only from

the date of a “notice of noncompliance” (42 U.S.C. 7420(d)

(3)(C)), with the procedure under Section 113, in which

penalties may be assessed for noncompliance from the first day

of violation,

10

CONCLUSION

The petition for a writ of certiorari should be held

and disposed of as appropriate in light of the Court’s

decision in General Motors Corporation vy. United

States, No. 89-369 (argued Mar. 21, 1990).

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

DAVID C. SHILTON

JOHN T. STAHR

Attorneys

MARCH 1990

TY U. S. GOVERNMENT PRINTING OFFICE, 1990 262203 833