Amicus Curiae Brief — Train v. Natural Resources Defense Council, Inc.

a. _—

Supreme Court, U. S,

FILED,

! NOV 29 1514.

IN THE MICHAEL RODAK, JR., CLE

Supreme Court of the United 5

OcrTosEr TzRM, 1974

No. 73-1742

RussELL EH. Train, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, AND UNITED

Srates ENVIRONMENTAL PROTECTION AGENCY,

Petationers

v.

Natura, Resources DerENse Counct, INo., er AL.

On Writ of Certiorari to the United States Court of Appeeis

for the Fifth Circuit

BRIEF OF THE AMERICAN IRON AND STEEL

INSTITUTE. AS AMICUS CURIAE

Max N. EDWARDS

JOHN Hagpin YOUNG

Collier, Shannon,

Rill & Edwards

1666 K Street, N.W.

Washington, D. C. 20006

Attorneys for Amicus Curiae

==

Paess or Brson S. Apams Parnrmra, Inc., Wasuurcron, D. C.

>.

INDEX

Page

STATEMENT OF INTEREST ...........000cccecceecccces 1

SUMMARY OF ARGUMENTS ..........ccccccececccccecs 4

ARGUMENTS *

I. The States Are Not Pre-Kmpted By The Clean

Air Act From Granting Interim Varianees Un-

der The Act’s Revision Authority Prior To The

Kffective Date Of Mandatory Attainment

OMUIICR +55. caveat arse chee s bene b cee een youd (

Il. Original Implementation Plans Under The

Clean Air Act And Revisions Thereto Are To

Be Treated Uniformly By The Ageney Prior To

The Effective Date Of Mandatory Attainment

PORCNGR. 5624 sess a ora oeseets ns eee E eons Es iv

TI. Improvement Of Public Health And Welfare

Through The Attainment Of National Ambient

Air Quality Standards Is Best Encouraged By

Permitting The States To Grant Variances

Prior To The Mandatory Attainment Deadlines 24

CONCLUSION ... ccc cece ccc cc reece cece ccc ccceeceees : 27

CITATIONS

CASES:

Anaconda Co. v. Ruckelshaus, 482 F.2d 1301 (9th Cir.

Ce) es Se Sacked e dean pea eas oo es 21

Appalachian Power Co. v. Envirgnmental Protection

Agency, 477 F.2d 495 (4th Cir. 1973) ..0 0... 21

Buckeye Power, Inc. ve Environmental Protection

Agency, 481 F.2d 162 (6th Cir, 1973) ...0....00. 21

Delaware Citizens for Clean Air, Ine. v. Stauffer Chem-

ical Co., No. 4597 (D.Del., Dee. 12, 1973); 6 ERC

DA (Del. VIS): vedo en tse see sargecegesn 21, 26

il Index Continued

Page

Duquesne Light Co. vy. Environmental Protection

Agency, 481 ¥.2d 1 (3rd CW S98) vedo nee eccees 21

Essex Chemical Corp. vy. Ruckelshaus, 486 F.2d 427

CCAS. T9018) eer ee rere oie 8 eee coy oD

Grigg. v. Duke Power Co., 401 U.S, 424 adie pesos 27

Naturgl Resources Defense Council, Inc. Environ-

mental Protection Agency, 478 F.2d 875 (1st Cir.

DOUG). F350 exe ahee ey Fiees ea enes ene eeeeeuaaes 2, 14, 23, 24

Natural Resources Defense Council, Inc. v. Baviron.

mental Protection Agency, 483 F.2d 690 (Sth Cir.

ROIG). oasis cede oes eas ps58 44434 eces he eeeed 2, 14

Natural Resources Defense Council, Ine. v. Environ-

mental Protection Agency, 489 F.2d 390 (Sth Cir.

jg a em a a y.

Natural Resources Defense Council, Ine. Environ-

mental Protection Agency, 494 F.2d 519 (2d Cir,

TOUR) sb aedeawuw cae aee ede eas eee yee dey eee eeeese 2,14

Natural, Resources Defense Council, Ine. v. Environ-

mental Protection Agency, — F.2d —, No. 72-2145

(9th Cir. Nov. 11, 1974) ......... ccc cee cecces 2, 4, 19

Permian Basin Area Cases, In re, 390 U.S. ae (1968) 22

Portland Cement vy. Ruckelsheus, 486 F.2d 375 (D.C.

Ae 8) ee ee 22

Udall vy. Tallman, 880 U.S. 1 (1965) ........0.0.0... 2

United States v. Allegheny Ludlum Steel Corp., 406

U.S. 742 (1972) ...... a ere ee ar re ee 22, 24

United States vy. Storer Broade casting Co., 391 US. 192

(1956) 5455 ARI 60054 bee's oe conics sede eaasienes 23

WAIT Radio v. Federal Communications Commission,

418 F.2d 1153 (D.C.Cir. 1969) 3..............06. 23

STATUTES AND REGULATIONS:

Act of July 14, 1955, 69 Stat. 822 ................8..

Clean Air Act of 19638, Pub. L. 88-206, 77 Stat. 242 .... 9

Clean Air Act Amendments of 1966, Pul. LL. 89-675, 42

WR, S188) biased onsen 4 ed ens an 455ycinss 9

Air Quality Act of sis Pub. L. 90-148, 42 U.S.C.

CUS) Saeed coer 4h e e490 ee og 4a eens eens 4)

Index Co: tinued

ilk

Page

Clean Air Aet and Amendments of 1970, 42 U.S.C. 1857

et seq.:

Section 101(a)(3), 42 ULS.C. § 1857 (a) (3) 2.2, 7,12

Section 101(b), 42 ULS.C. § S857 (Db) (1) o. 000... 3

Section 109(b), 42 U.S.C. § 1s857e-4(D) 2200000. 8

Section 110(a)(1)p42°U S.C. § 1857¢-5(a)

9, 10; 14, 15, 19, 21, 22

Section 110(a) (2), 42 U.S.C. § 1857e-5(a) (2)

15, 14, 15, 16, 17

Section 110(a)(2)(A), 42 U.S.C. § 1857¢-5(a)

‘OAT, ee reer Sn, Leen d, 8,27

Section 110(a)(2)(B), 42 U.S.C. § 1857e¢-5(a)

CEE geen eo ooo hea hehe eee eee 5

Seetion 110(a(3), 42 U.S.C. § 1857¢-5(a) (3)

2,3, 4, 5, ;

13, 15, 16, 22, 28

/ Section 110(¢), 42 U.S.C. § 1s57e-5(e) ;

6, 19, 20, 21, 33

Section 110(d), 42 U.S.C. § 1857¢-5(d)

6, 19, 20, 21 ,23

Section 110(e),; 42 U.S.C. § U857e-5(e) 022. .... 9,18

Section 110(f), 42 U.S.C. § 1s57e-5(f) 2.5, 9, 11, 14,

15, 16, 17, 18,

19, 25, 26

Section 302, 4242 U.S.C. §US5Thth) oo... 2. 8

Section H4, 42 U.S.C. § 1857e-9 2.0... Hy]

Section 116, 42 U.S.C. §1857d-1 2.0000..00.0... 9

Ga. Code. Ann. 88-912 646 cc csoeweinceisegeass , eee 10-11

AE As BOO ceed ce xs beh a ees hee pends end 10

40 CLV. $351.6 occ ccc cece eee cen eniscvecsewecoes 11

BP UL hy BBC) wae bene een en dungeon sees dex 11, 25

40 C.F.R. $$ 60.140 60.144 ...0.0.0....0.0........... 3

iv Index Continued

Vere

Page

MiscELLANEOUS:

SEXATE Comm. ox Pus. Works, A LeGisuature History

oF THE CLEAN AIR AMENDMENTS OF 1970, Serial

No. 93-18, 98d Cong., 2d Sess. (1974) 22.26. 19, 18, 25

Hearings on Implementation of the Clean Air) Amend-

ments of 1970—Part 1 (Title 1) Before the

Subcomu, on Air and Water Pollution of the Sen-

ate Comm, on Pub. Works, 92d Cong., 24 Sess.,

Ser. 210, 92-HG1, 40, OL 4 445-<5.0 96-05 cee ee nena ees 17

Comment, Variance Procedures Under the Clean Air

Act: The Need for Flexibility, 16 Wu. & M. LL.

HE Bo IAS) nn ceoas sags se eceoe sues seeenese 19

*

IN THE

Supreme Court of the United States

OcTOBER TERM, 1974

No. 73-1742

Russet EF. Traits, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, AND UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioners

Vv.

NATURAL RESOURCES DEFENSE CouNciL, INC., ET AL.

On Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE AMERICAN IRON AND STEEL

INSTITUTE, AS AMICUS CURIAE

STATEMENT OF INTEREST

This ease involves the review of regulations of the

Environmental Protection Ageney [the *‘*Ageney’’]

establishing proceedures for the approval of state im-

9

plementation plans under the Clean Air Act of 1970,

42 US.C. § 1857 cf seg. [the *Aet™™] whieh in-lude

provisions authorizing the states to grant interim

Variances from state plans pursuant to the revision

authority of section 110(a)(3) of the Act, 422 US.c.

§ 1857¢-5(a) (5), prior to the effective date of the Act’s

mandatory attaiument of primary ambient air quality

standards. Five Cireuit Courts of Appeals have re-

viewed this question. Natural Resources Defense

Council, Tneev. Environmental Protection Ageney, ATS

F.2d 875 (Ast Cir. 1973): Natural Resources: Defense

Council, Tnewv. Envirowmental Protection Ageney, 483

F.2d 690 (8th Cir, 1973): Native! Resources Defeuse

Council, lnewv. Environmental Protection Agency, A89

F.2d 390 (Sth Cir. 1974): Nateral Resources Defense

Council, Ine ve. Envirowmental Protection Ageney, 494

B.2d 519 (2d Cir. 1974); and Nalaral Resources De-

fense Council, Tne. ve Buvironmental Protection

Agency, No. 72-2145 (9th Cir, Nov. 11, 1974). Four

circuits, the First. Second, Eighth and Ninth, have up-

held the Agency's authority to approve state implemen-

tation plans providing for state interim variance pro-

cedures, While one cirenit, the Fifth, denied that the

Ageney has such authority. This Court's interpreta-

tion of the Clean Air Act in this instance will have

significant Impact on industry and governments at all

levels by affecting substantial procedures now being

followed to produce cleaner ambient air environment.

The Ameriean Tron and Steel Institute respectfully

files this brief as amici curiae due to the concern of

its members that affirmance of Fifth Cireuit’s deci-

sion will prohibit improved or expeditious methods of

achieving the prescribed standards of the Act. Writ-

3

. . 17 ay: ‘ :

ten consent of the parties to file a brief amicus curiee

has been obtained under Supreme Court Rute 42.2.

LS

The American Tron and Steel Institute [hereimatter

“Thstitute’ ] is a non-profit: trade association Ineor-

porated under the laws of the State of New York with

principal offices at 1000 Sixteenth Street, N.W., Wash-

ington, D.C. The Institute consists of 65 member

companies in the United States which employ over

ahalf million hourly and salary people, and account

for more than 95 percent of the steel] produced in

America,

The Institute’s members are and have been subject

to the standards of the Act. sec, eg. 40 CARR.

$$ 60.160-6O,144 (1974). and have contributed their

planning and financial resources to programs premused

upor the authority of the Ageney to approve states’

variances from previously approved state implementa-

tien plans. To disallow this authority would thwart the

full thrust of the Act and cripple thevintent of the

Congress. Variances to implementation) plans within

the terms of section 110(a) (3) are essentigl if the com-

bined efforts of industry and government are ‘to pro-

tect and enhance the quality of the nation’s air re-

sourees so as to promote the public health and welfare

and the productive capacity of its population. 42

U.S.C. § 1857(b) (1). Significant progress has already

been made toward reaching these goals and variances

have played an integral role in the plamning and im-

plementation of the Act's goals, To eliminate this

useful administrative tool by preventing the revision

of certain implementation plans will severely handieap

the industries and governments who are compelled to

inect the standards of the legislation.

4

Aceordingly, the Institute is vitally concerned with

and would be immediately affeeted by a decision which

would deny the authority of the Agency to approve

interim variances granted by the states under imple-

mentation plans developed pursuant to the Act and

the Agency's regulations.

In the opinion of the members of amicus, economic,

technological and practicable conditions in the iron

and steel industry and the communities served by the

members, generally would be best served by continuing

the Agenev'’s present procedures of approving vari-

ances in state Implementation plans under the Agency's

revision authority, delineated in section 110(a) (3) of

the Clean Air Act. 42 U.S.C. § 1857e-d(a) (3).

SUMMARY OF ARGUMENT

I

The Clean Air Act requires the Environmental Pro-

tection Ageneyv—which it already has done—to estab-

lish national primary and secondary ambient air

quality standards establishing the maximum allowable

concentration of pollutants in the ambient air environ-

ment. * Subsequent to the promulgation of national

standards, the states developed implementation plans

pursuant to the Act which vests in them the primary

responsibility for implementing and maintaining pro-

grams to meet the national ambient air quality stand-

ards. The Act provides that the Ageney shall approve

state plans to insure that state programs will meet

national ambient standards by the deadlines established

under Act. generally set for mid-1975. Phe Aet in

two sections, relevant here, provides for the approval

of variances from state implementation planus. In see-

>)

tien 110(2) (3) the Agency is granted the authority to

approve revisions in state implementation plans, 42

ULS.C. § 18576-5600) (3). Tnseetion TOC?) the Aet pro-

vides a second type of variance in the form of post-

ponements of up to one vear in the effective date of an

implementation plan. 42 U.S.C. § 1857-5 (1).

Under section 110(a) (2) CA), state plans implement-

Ing national primary air quality standards must pro-

vide “for the attainment of such primary standards

as expeditiously as practicable but... in tho case later

than three vears from the date of approval of such

pla’, 42 ULS.E. § 1857¢-5(a) (2) CA). A state plan

must fitther insure, under section 110(a) (2) 0B), the

maintenance of primary and secondary standards once

they are reached by the state under section T1002) CA).

Thus, a state's implementation plan must provide for

two periods of time: one when primary standards must

he reached as expeditiously as practicable and a second

when standards once attained must be maintained.» Tn

the first. or pre-attaimment period, the. Ageney and

states are given a degree of flexibility in revising state

implementation plans. Tn the second, or post-attai-

ment peried, Hexibility must give way to strict rules

of complianee and variance therefrom, It is during

this pre-attaimment pericd in which the states are

delegated, subject to Ageney approval, the author-

ity to grant variances in the form of revisions of state

implementation plans, which has become the subject

of this review. To deny the Ageney’s authority to

erant revisions would be to severely handieap the

states’ ability to carry ont their responsibilities as

mandated by the Aet.. The postponement proceedures,

emboided in section 110(f). are applicable only to post-

attainment problems, and thus are not controlling on

6

the Agency's authority to grant variances prior to the

effective date of mandatory atcainment of national

wnbient aie quality: standards.

II

The Clean Air Act in sections 110(e) and (d) pro-

vides that the Ageney’s procedures for approving state

implementation are to be uniform. Throughout both

sections, reférence is made to the state hearing proce-

dure: (and ageney procedures should the state fail to

hold hearings) in terms of the implementation plan or

revisions. While the legislative history is silent in this

area, both sections TOCe) aed Cd) display a clear Con-

eressional intent that revisions and original implemen-

tation plans mire be treated uniformly,

An interpretation of the Act which permits the

aveney to approve interim: state variances is consistent

with the Court’s holdings that in complex areas, sueh

as solving the national air pollution control problem,

federal agencies must have the flexibility to grant vari-

anees Within the meaning of the relevant statutes. In

the case of pre-attainment variances, judicial construe-

tion. tempered by reasonableness, must be apphed to

section 110 in order to insure flexibility by providing

the Ageney with the authority te approve state vari-

anees prior to the effective date of mandatory national

ambient air quality deadlines, United States ve Ale-

gheny Ludlum Stecl Corp, 406 US, 742 (1972).

Ill

The objectives of the Clean Air Act are best encour-

aged by upholding the Ageney’s authority to approve

state implementation plans which provide for interim

variance prior to the effective date of mandatory at-

tainment standards. This conclusion is based on two

overriding premises. First, as the four circuits sup-

porting the ageney noted, the Ageney’s revision proce-

dures encourage the states to impose strict air quality

limitations now, subject to individual exceptions if

warranted. Lf the revision power is unavailable, and

only the postponement procedures of section 1101)

are applicable, the states would be foréed to adopt less

stringent standards iu order to accommodate those who

‘ould not otherwise comply, notwithstanding reasonable

efforts.

Second, the states and the Ageney have been pro-

ceeding since chactment of the Clean Air Aet under

the assumption that the revision authority would be

available and utilized. For the revision procedures

now to be unavailable on the eve of the effective date

of mandatory standards (generally set for mid-1975)

would be to disrupt the entire environmental program

by calling inte question the delicate balance hetween

state and federal roles. Moreover, unavailability of

the revision procedures would cause irreparable mjury

to industries whieh have been striving, under state

plans and revisions thereto, to meet the mandatory

attainment deadlines.

ARGUMENTS

I. The States Are Not Pre-empted by the Clean Air Act from

Granting Interim Variances Under the Act's Revision

Authority Prior to the Effective Date of Mandatory At-

tainment Deadlines.

The Clean Air Act of 1970, 42 U.S.C. § 1857e-3 of

seq.) establishes a program of air pollution coutrol

involving three major stages. The first stage is the es-

tablishment of “ambien. air quality standards”, by the

'The Clean Air Act of 19700 substantially amended the Air

Quality Act of 1967, 42 UIS.C. § 189%.

8

Ageney designating the maximum tolerable concentra-

tions of pollutants in the ambient air? The second

stage is the state development of plans to bring the

states up to the national standards. State plans are

subject to approval by the Ageney. To be approved an

implementation plan must provide for the attainment

of primary standards ‘tas expeditiously as practicable”

but in no case later than three years from the date of

approval of such plan, and the attaimment of secondary

standards within a ‘treasonable time’. 420 U.S.C.

§$ 1s57e-9(a) (A) C) and (ii). Tnapproving a plan the

ageney Inust further take into consideration such other

factors as infor alia monitoring svstems land use and

transportation control, not relevant here. During this

second stage the Act provides that the ageneyv shall

approve revisions of a state plan if it meets the re-

quirements set forth for an original implementation

plan. 42 U.S.C. § 1857¢-5(a) (3).

The third stage under the Act is the maintenanee of

umbient air quality staridards after the effective date of

mandatory deadlines. The deadline for state attain-

ment of national standards may be postponed at the

request of a state governor, The Ageney may grant a

postpomment only after the holding of an adjudicatory

-The Act divides the standards to be established between pri-

mary standards which are maxinvuns allowable to protect the

publie health, 42 US.C. 8 Ds57e-40b) (1): and secondary standards

Which are maximums tolerable to proteet the public welfare from

any known or anticipated adverse effects. 42 U.S.C. $ 1857¢-4(b)

(2). Section 302 of the Act defines the public welfare as:

(ho) Al language referping to effects on welfare includes, but

is not limited to, effects on soils, water. crops, vegetation,

man-made materials, animals, wildlife, weather, visibility,

and climate, damage to and deterioration of property, and

hazards to transportation, as well as effeets on economie values

and on personal comfort and well-being. 42 U.S.C. $ 1857h(h).

9

hearing ‘‘on the record’, 42 U.S.C. § 1857¢-5(e) & (f).

Under section 110(e) the Ageney may extend the three

vear deadline for mecting the national primary stand-

ards for up to two years if requested by the governor

when an implementation plan is submitted. 42 0.8.C.

§ 18d57¢-5(e). Section 10(f) further provides that the

governor may request up until the effective date of the

standard, a one vear extension of the national primary

standard deadline. 42 U.S.C. § 1857¢-5(f).

The Act divides the responsibility for developing the

programs to be applied in these three stages between

the states and the federal government. In the first

stage the Agency has the exclusive authority to estab-

lish national ambient air quality standards, 42 U.S.C.

§ 1857Te-4(a). In the second stage the states have the

primary authority, subject to Ageney approval, to es-

tablish state implementation plans to achieve the

standards set by the Agency.’ 42 U.S.C. § 1857¢-5(a).

In the third stage the Act envisions shared respousi-

bility between the state and federal government to in-

sure that national standards onee attained, are main-

tained. At this final stage, the Act provides strict

imitations on exemptions to the standards of ambient

quality once they have been obtained, 42 USC,

§§ 1857¢-8 & d-1.

The Agency, as required by the Act, promulgated

national ambient air quality standards on April 380,

* That the primary responsibility for solving the air pollution

problem rests in the states has been a constant premise throughout

the history of Congressional legislation in this area. See, ¢.9..

Air Quality Act of 1967, Pub. L. 90-145, 42 U.S.C. S185%, Clean

Air Act Amendments of 1966, Pub. LL. 89-675, 42 UOS.C. $ 1897;

Clean Air of 1963, Pub. L. 88-206, 77 Stat. 842; Act of 190, 69

Stat. 322.

10

1971 for six categories of ‘‘criteria pollutants’’.* 40

C.F.LR. §50 (1972). Accordingly 40 states, ineluding

Georgia, prepared and submitted implementation plans

for approval by the Ageney ou January 31, 1972. 42

U.S.C. § 1857¢-5. On May 31, 1972, the Ageney ap-

proved portions of the Georgia state plan providin:

for exceptions to its implementation plan to firms who

could not meet the standards within the deadline estab-

lished in the state plan. The Ageney’s approval of

this portion of the Georgia plan was made pursuant to

* At present, there are six categories of ‘‘criteria pollutants’’:

sulfur oxides; carbon monoxide; nitrogen dioxide; the hydrocar-

bons; particulate matter; and the photochemical oxidants. See 40 _

C.lLR. $50 (1972).

* Variances under the State of Georgia implementation plan

are controlled by Ga. Cope § 88-912 which provides:

88-912. Variances. The Department may grant specifie or

- general classes of variances from the particular requirements

of any rule, regulation or general order to such specifie source

or general classes of sources of air contaminants upon such

conditions as it may deem necessary to protect the public

health and welfare, if it finds that strict compliance with such

rule, regulation or general order is inappropriate because of

conditions beyond the control of the person or classes of per-

sons granted such variances, or because of special cireum-

stances which would render strict compliance unreasonable,

unduly burdensome, or impractical due to special physical

conditions or causes, or because strict compliance would re-

sult in substantial curtailment or closing-down of one or

more businesses, plants or operations, or because no alternative

facility or method of handling is vet available. Such variances

may be limited in time. In determining whether or not such

variances shall be granted, the Department shall give consid-

eration to the protection of the public health, saftey and gen-

eral welfare of the public. and weigh the equities involved and

the relative advantages‘and disadvantages to the resident and

the occupation or activity affected. Any person or persons

secking a varianee shall do so by filing a petition therefor with

the Director of the Department. The Director shall promptly

investigate such petition and make a recommendation as to

the disposition thereof. Tf sueh recommendation is against the

granting of the variance, a hearing shall be held thereon

11

section 51.32(f) of the Agency’s regulations which

provides:

(f) A State's determination to defer the appli-

cability of any portion(s) of the control strategy

with respect to such source(s) will not necessitate

a request for postponement under this section mn-

less such deferral will prevent attainment or main-

tenance of a national standard within the time

specified in such plan: Provided, however, That

any such determination will be deemed a revision

of an applicable plan under § 51.6. 40 C.F.R.

§ 51.32(f).°

within 15 days after notice to the petitioner. If the recom-

mendation of the Director is for the granting of a variance,

the Department may do so without a hearing; provided, how-

ever, that upon the petition of any person aggrieved by the

eranting of a variance, a public hearing shall be held thereon.

A variance granted may be revoked or modified by the De-

partment after a public hearing which shall be held after giv-

ing at least 15 days prior notice. Such notice shall be served

upon all persons, known to the Department, who will be sub-

jected to greater restrictions if such variance is revoked or

modified, or are likely to be affected or who have filed with

the Department a written request for such notification.

640 C.F.R. $51.6 provides:

(a), The plan shall be revised from time to time, as may be

necessary, to take account of:

(1) Revisons of national standards,

(2) The availability of improved or more expeditious

methods of attaining such standards, such as improved tech-

nology or emission charges or taxes, or

(3) A finding by the Administrator that the plan is sub-

stantially inadequate to attain or maintain the national

standard which it implements. <

(b) The plan shall be revised within 60 days following

notification by the Administrator under paragraph (a) of

this section. or by such later date prescribed by the Admin-

istrator after consultation with the State.

(¢) Thé plan may be revised from time to time consistent

with the requirements applicable to implementation plans

under this part.

12

The Fifth Cirenit in overturnimg the Ageney’s ap-

proval of the Georgia plan, held that the Agency ex-

ceeded its authority in approving a plan which per-

mitted the state to graut variances prior to the effective

date of the mandatory attainment deadlines.

The gravaman of this case is whether the Clean Air

tAct, 42 U.S.C. § 1857 ct seq., delegates to the

Administrator, Environmental Protection Agency, the

authority under the revision provisions enumerated in

section 110(a)(3) of the Act, to approve interim vari-

ances in state implementation plans, prior to the effec-

tive date of mandatory attainment deadlines, 42 U.S.C.

§ 1857¢-5(a) (3). The Agency asserts that the revision

procedures of section 110(a)(3) delegates the Agency

the authority to approve state variances prior to man-

datory attainment dates, On the other hand, respond-

ent, National Resources Defeuse Council, Ine. [**Coun-

cil’’| argues that the Ageney’s approval of variances

cireunvents the provisions of section 110(f), 42 U.S.C.

§ 1857¢-5(f). The Council contends that Congress in-

tended section 110(f) to be the exclusive mechanism for

granting variances from requirements of state imple-

mentation plans.

Thus, the pivotal question is whether states variances

are controlled by section 110(a)(3) or seetion 110(f)

of the Act.

(d) Any revision of any regulation or any compliance

schedule pursuant to paragraph (¢) of this section shall be

submitted to the Administrator no later than 60 days after

its adoption.

(e) Revisions other than those covered by paragraphs (a)

and (d) of this section shall be identified and described in

the next semiannual report required by § 51.7:

(f) Any revision shall be submitted only after applicable

hearing requirements of $51.4 have been satisfied.

13

Section 110(a)(3) requires the Agency to approve

any revision of au implementation plan if that revision

meets the requirements of section 110(a)(2) and if it

has been adopted by the state after reasonable notice

and public hearings. Section 110(a)(3) provides:

The Administrator shal! approve any revision of

an implementation plan applicable to an air quality

control region is he «.etermines that it meets the

requirements of paragraph (2) and has been

adopted by the state after reasonable notice and

public hearings. 42 U.S.C, § 1857e¢-5(a) (3) (em-

phasis supplied}. |

Section 110(a)(2) in turn provides in pertinent part:

(2) The Administrator shall, within four months

after the date required for submission of a plan

under paragraph (1), approve or disapprove such

plan or each 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) (i) in the case of a plan implementing a

national primary anrbient air quality standard, it

provides for the attainment of such primary stand-

ard as expeditiously as practicable but (subject

to subsection (e) of this section) in no case later ’

than three years from the date of approval of such

plan (or any revision thereof to take account of a

revised primary standard); and (ii) in the case

of a plan implementing a national secondary am-

bient 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 limita-

tions, and such other measures as may be neces-

sary to insure attainment and maintenance of such

‘

SAE TEE PAST EAE AD ee

haat i

14

primary or secondary standard, including, but not

limited to, land-use and transportation contrels ;

42 ULS.C. § 1857¢-5(a) (2) [Emphasis supplied].

On the other hand, section 110(f) establishes the

standards by which postponement of an implemented

plan’s requirements ay be granted. Postponement.

must be requested by the governor of the state and,

if granted, may extend the compliance date up to one

vear, A determination to postpone the compliance

date must be predicated by an adjudicatory hearing

onsthe record after notice to interested persons and

opportunity for hearing’. 42 U.S.C. § 1857¢-5(f)

(2)( A). Section 110(f) establishes that the following

criteria must be met before a postponement can be

granted:

(A) good faith efforts have been made to com-

ply with such requirement before such date,

(B) such source (or class) is unable to comply

with such requirement because the necessary tech-

nology or other alternative methods of control are

not available or have not been available for a suff-

cient period of time,

(4°) any available alternative operating proce-

dias and interim coutrol measures have reduced

or will reduce the impact of such source on public

health, and

(D) the continued operation of such souree ‘s

essential to national security or to the public

health or welfare.

The fundamental difference between the revision

authority of section 110(a) and section 110(f) is that

under seetion 110(a) a varianee can be adopted by a

state after reasonable notice and public hearings. Un-

Acr section 110(f) the grant of a variance must be the

4 subject of a full adjudicatory hearing at the federal

15 | \

level. The uct effect of the Variance under the two

sections is also quite different. A revision under sec-

tion 110(a) does not extend the deadline for compli-

ance with national ambient standards; while a post-

ponement under section 110(f) may delay compliance

with the national ambient standards for up to one

year.

Pursuant to section 110(a) a state’s implementation

plan must provide for two periods of time: an carlier

period of time during which attainment of primary

standards are to be achieved as expeditiously as prac-

ticable but no later than three years from approval of

state implenicntation plans, 42 U.S.C. § 1857¢-5(a) (2)

| pre-attainment period | ; anda later period after which

the national ambient standards, having been attained,

are to be maintained [post-attainment period]. 42

U.S.C. § 1857¢-5(a) (3). See, Natural Resources

Defense Council, Tne. Vv. Environmental Protection

Agency, supra, 478 F.2d 875 (ist Cir. 1973); Natural

Resources Defense Council, Luc. Vv. Environmental Pro-

tection Agency, supra, 483 F.2d 690 (Sth Cir. 1973) ;

Natural Resources Defense Council, Inc. ve Environ-

mental Protection Agency, supra, 494 F.2d 519 (2d Cir.

1974), Natural Resources Defense Council, Ine. v. En-

vironmental Protection Agency, No. 72-2145 (9th Cir.,

Noy. 11, 1974).

During the pre-attainment period the states have the

primary responsibilities for developing and implement-

ing plans to meet national ambient standards. See,

Remarks of Senator Copper, Senate Debate on 8.4308,

Sept. 21, 1970, Reprinted in S. Comm. ox, Pus, Works,

A Leatsnative History or tie CLEAN ATR AMEND-

MENTS, 93d Cong., 2d Sess., 259 (1974). At the pre-

attainment stage the Agency's role is to supervise the

states’ progress towards meeting mandatory ambient

deadiines.

.

;

tant

?

16

Reliance on the revision procedures of section 110

(a) (3) is consistent with the legislative scheme of the

Act that the states shall play the leading role in con-

trolling pollution.’ In particular, section 110(a) (3)

of the Act establishes that state and local governments

have the primary responsibility in the prevention and

control of air pollution at its source. 42 U.S.C. § 1857

*(a) (3). See also, 42 U.S.C. §1857(b) (3) providing

for **... teehnieal and financial assistance to State

and local governments in connection with the develop-

ment and execution of their air pollution prevention

and control programs ... .’’ [Emphasis supplied].

Section 107(a) of the Act further provides:

Fach state shall have the primary responsibility

for assuring air quality within the entire geo-

graphie 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. 42 U.S.C. § 1857e-

2(a).

The states are required by section 110(a) (2) (A) to

develop implementation plans which provide for the

attainment of primary ambient air quality standards

‘fas expeditiously as practicable but... in no ease later

‘-; than three vears from the date of approval ...’’ and

sud secondary standards ‘within a reasonable time’’.

42 U.S.C. § 1857e-5(a)(2)(A). Generally, the dead-

lines set for mandatory primary standards are mid-

1975. To hold that the postponement provisions of

section 110(f) must apply in the pre-attainment period

to state variances would require the states to meet a

7See note 3, supra, and acompanying text.

17

stricter standard than enunciated in section 110(a)

(2)’s ‘tas expeditiously as practicable’? language, 42

ULS.C. § 1857¢-5(a) (2). For example, if immediately

after the approval of a state implementation plan, a

state decided to grant a variance, the procedures of

section 110(f) would permit the state to seek only a

one year postponement even though under section

110(a) (2) the state has three vears to comply with the

implementation plan. If section 110(f) is read to

cover the pre-attainment period the Act would neces-

sarily be internally in conflict. Thus, section 110(f)

in providing for a one vear postponement of the man-

datory date applies only to variances pertaining after

the date for attainment of the national ambient air

quality standards.”

* For example, assuming section 110(f) is the exclusive proced-

ure for granting varianees and a state, such as Georgia, imple-

ments its plan effective immediately in 1972, a source of pollution

which does not comply, would be required to seek a one year post-

ponement. expiring in 1973, two years before the mandatory dead-

lines. Thus the one year postponement procedure could cause

a source to be in violation of the standards two years prior to the

effective date of attainment deadlines.

* That section 110(f) applies only to post-attainment variances

was supported by the Council before the Subcommittee on Air

and Water Pollution of the Senate Committee on Publie Works

wherein a sascntative of the Council stated that section 110(f)

applied chs “any variaitve which would prevent attainment.

of a natipuat” standard ... 2? The Council’s representative

supported the Agency's regulations relating to its revision au-

thority by @amaditinge that assertion of that authority ‘‘. . . cor-

reetly provides that variances which do not threaten attainment

of a national standard are to be considered revisions of a plan

Hearings on Tinplomentation of the Clean Air Act Amend-

ments of 1970-—Part I (Title 1) Before the Subcommittee on Air

and Water Pollution of the Senate Committee on Public Works.

92d Cong., 2d Sess., ser, no. 92-1131, p. 45 & n. 51 (statement of

Richard E. Ayres).

18

The only relevaut legislative history to the question

of the scope of section 110, is found in the Summary

of the Provisions of the Conference Agreement on the

Clean Air Amendments of 1970 presented by Senator

Muskie, as one of the amendment’s sponsors. In the

Summary, the procedures of section 110(f) are de-

seribed as being applicable only when the mandatory

three vear deadline would be affected, and not for

every delay or deferral of state-imposed requirements

affecting the attainment of national standards within

the statutory deadlines. The Summary, in deseribing

the procedures of section 110(e) whereby a governor

may request, at the time of submitting an implementa-

tion plan, a two-year extension to the mandatory dead-

lines, states:

If, at the time of plan approval, it appears im-

possible to bring specifie sources into compliance

within three vears, the Governor of the State may

request an extension of the deadline up toe two

vears. The Administrator must be satisfied that

alternate means of achieving the standard have

been considered (ineluding closing down the souree

in question), that all reasonable interim measures

will be applied, and that the State is justified in

seeking the extension. S. Comm. on Punic

Works, A LEGISLATIVE History or THE CLEAN ATR

AMENDMENTS OF 1970, Serial No. 93-18, 93d Ceug.,

2d Sess., 132 (1974).

Immediately thereafter, the Summary in describing

the applieation of section 110(f) to the postponement

of the mandatory deadline, states:

A Governor may also apply for a postponement of

the deadline if, when the deadline approaches, it is

impossible for a source to meet a requirement un-

der an implementation plan, interim control meas-

‘

19

ures have reduced (or will reduce) the adverse

health effects of the source, and the continued

operation of the source is essential to national

seenrity or the public health or welfare of >

State. Sueh a postponement is subject to judic

review.

It is clear from even this meager legislative history |

that section 110(f) was intended by Congress to b

applied only te requests for extension for the actual

deadline: not for variances granted by the states dur-

ing the period prior to attainment of national ambient

air quality standards."

II. Original Implementation Plans Under the Clean Air Act

and Revisions Thereto Are To Be Treated Uniformly by

the Agency Prior to the Effective Date of Mandatory At-

tainment Deaclines.

The Clean Air Act in scctions 110(¢) and (d) pre-

sents compelling language that Congress did not intend

to draw a distinetion between Ageney approval of re-

visions under section 110(a)(3) and approval of orig-

inal implementation plans under section 110(a)(1)-

(2), 42 ULS.C. § 1857e-5(a)-(a). Section 110(d) de-

fines “implementation plan’? under the Act to include

both the original and revisions to state plans to comply

The holding of the Ninth Cireuit Court of Appeals supports

a much broader thesis than presented here in its holding that the

Agency has the authority to grant variances under the revision

seetion 110(a)(3) even after the attainment of national ambient

air quality standards. Natural Resources Defense Council, Ine. v.

Environmental Protection Ageney, No. 72-2145 (9th Cir. Nov.

11. 1974): see also, Comment, Variance Proecdures Under the

Clean Air Act: The Necd for Fleribility, 15 Wa. & M. L. Rev. 324

(1973).

PRL ELLE LEE LEE

20

with the national ambient air quality standards. The

text of section 110(d) provides:

(d) For purposes of this chapter, an applicable

implementation plan is the implementation plan,

or most recent revision thereof, which has been

approved under subsection (a) of this section or

promulgated under subsection (¢) of this section

and which implements a national primary or sec-

ondary ambient air quality standard in a State.

# US.C. 8 1857e-5(d). 0 | Emphasis supplied].

Section 110(¢) in relevant part also provides that ini-

tial plans and revisions shall be subject to the same

procedures :

(©) The Administrator shall, after consideration

of any State hearing record, promptly prepare

and publish proposed regulations setting forth an

implementation plan, or portion thereof, for a

State...

._ 6 «@

If such State held no public hearing associated

with respect to sueh plan (or revision thereof),

the Administrator shall provide opportunity for

such hearing within such State on any proposed

regulation. The Administrator shall. within. six

months after the date required for submission of

such plan (or revision thereof), promulgate any

such regulation unless, prior to such promulga-

tion, such State has adopted and submitted a plan

(or revision) which the Administrator determines

to he in aceordanece with the requirements of this

section. 42 U.S.C. § 1857e-5(¢). [Emphasis sup-

plied].

Sections 110(e) and (d) read together with sections

110(a)(3) and (2) reveal a visible legislative intent

to subject both original implementation plans and re-

21

visions thereto te the same procedural requirements.

See, Delaware Citizens for Clean Air, Ine. v. Stauffer

Chemical Co., Civil No. 4597 (D. Del. 1973), reported

in 6 ERC 1147 (1974), while dicta to the district

court's holding that it lacks jurisdiction under the Act

to review revisions, stating that ‘‘Both sections 1857e-

5(d) and 1857¢-5(¢) display clear Congressional in-

tent to treat revisions and original plans uniformly”’.

6 ERC at 1149. Thus, the Act provides that imple-

mentation plans and revisions are to be adopted only

after reasonable notice and publie hearings at the state

level, subject to Agency approval. 42 U.S.C. § 1857e-

5(a)(1). While this is not an adjudicatory hearing

with all the trappings of section 553 of the Adminis-

trative Procedure Act, 5 U.S.C. § 553, the hearing must

nevertheless provide adequate opportunity for public

participation, See, Appalachian Power Co. v. Envi-

ronmental Protection Agency, 477 F.2d 495 (4th Cir.

1973); Duquesne Light Co. v. Environmental Protec-

tion Ageney, 481 F.2d 1 (3rd Cir. 1973): Anaconda

Co. v. Ruekelshaus, 482. F.2d 1301 (9th Cir. 1973).

Cf. Buckeye Power, Ine. v. Fivironmental Protection

Agency, 481 F.2d 162 (6th Cir. 1973). ,

The obligation of the state to hold hearings on im-

plementation plans and revisions to those plans is basie

to the Act’s overall scheme of vesting in the states the

primary responsibility for implementing and , main-

taining nationally established ambient air quality

standards. Denial of the Ageney’s authority fo ap-

prove interim state variances, which have been subject

to publie notice and hearings, cuts across the very

grain of the Act’s careful delegation to the states of

the authority for the creation and implementation of

air quality programs, and to the Agency to supervise

ee ees anand i ee

99

——

state compliance. Compare, 42 U.S.C. §§ 1857(a) (3),

1857¢-2, 1857¢-5(a) (1) (a) (2) CA) (i).

Construction of section 110(a) to authorize Agency

approval of state variances plans is supported by two

recent Court decisions relating to the necessity of pro-

viding variances to rules of general applicability. Zn

Re Permian Basin Area Cases, 390 U.S. 747 (1968),

and United States v. Allegheny-Ludlum Steel Corp.,

406 U.S. 742 (1972). In both eases, the! Court held

that federal agencies have the authority to issue ex-

emptions or variances even if statutory authority is

silent on the issue. In Permian Basin, supra, the court

carefully reviewed a Federal Power Commission regu-

lation which partially exempted several gas producers

from operation of the statute. Although the court

acknowledged that the rate-making provisions of the

Federal Power Commission do not provide for exemp-

tions, the court held that the grant of an exemption

Was within the Ageney’s authority.

The rationale supporting the Agency’s authority to

grant variances has been set forth by the court in

United States v. Allegheny Ludlum Steel Corp., supra,

wherein the eourt in ruling on the Interstate Com-

meree Commission’s authority to grant exemptions de-

elared:

It is well established that an ageney’s authority

to proceed in a complex area... by means of rules

of general applteation entails a coneomitant au-

thority to provide exemption sprocedures in order

to allow for special circumstances. 406 U.S. at

()),

See, Portland Cement v. Ruchkelshaus, 486 F.2d 375

(D.C. Cir. 1973) and Esser, Chemical Corp. v. Ruckel-

23

shaus, 486 F.2d 427 (D.C. Cir. 1973) applying this prin-

ciple to decisions of the Environmental Protection

Agency involying section 111 of the Clean Air Act.

See also, United States v. Storer Broadcasting Co.,

351 US. 192, 205 (1956) and WAIT Radio vy. Federal

Communications Commission, 418 F.2d 1158 (D.C. Cir.

1969) regarding application of this principle to the

Federal Communications Commission,

The District of Columbia Circuit in remanding regu-

lations involving stationary source standards for new

or modified Portland Cement plans declared:

|. A| regulatory system which allows flexibility, and

a lessening of firm proscriptions in a proper case,

‘an lend strength to the system as a whole, 486

F.2d at 399.

Accord, Esser Chemical Corp, v. Ruckelshaus, supra,

holding that the varianee procedures of section 111

appear necessary to preserve the reasonablencss

of the standards as a whole...’ 486 F.2d at 483.

Flexibility in the pre-attainment stage is necessary

to fulfill the statutory goal of clean air within the time-

table established by the Ageney under the Clean Air

Act. It is this need for flexibility and its reasonable-

ness which the First Cireuit found pivetal in uphold-

ing thesAgency’s revision authority in the pre-attain-

ment period. Natural Resources Defense Council, Ine.

v. Environmental Protection Agency, supra, 478 F.2d

at 887. This need for flexibility is supported by read-

ing sections 110(¢) and (d) as necessary to preserve

the reasonableness of attaining ambient standards

within the national timetable. To invoke the postpone-

ment provisions of seetion 110(f) as the exclusive rem-

edy for granting variances, at this stage, would be to

24

choke off state and Agency efforts to solve the prob-

lems of air pollution by requiring unnecessary, lengthy

and time-consuming federal adjudicatory hearings.

Moreover, to deny the Ageney’s authority to approve

variances under the revision authority would be con-

trary to the Court’s holding in United States v. Alle-

gheny Ludlum Steel Corp., supra, that agencies pos-

sess the authority to grant exceptions when dealing

with unusually complex problems.

III. Improvements of Public Health and Welfare Through the

Attainment of National Ambient Air Quality Standards Is

Best Encouraged by Permitting the States To Grant Vari-

ances Prior to the Mandatory Attainment Deadlines.

The First Cireuit in considering the practical impact

of the Agency’s use of the revision authority, noted:

A state plan may well establish emission limita-

tions or other requirements during the preliminary

period which one or more sources simply eannot

initially meet. A postponement under § 1857e¢-

+(f), besides being limited to only one year, would

require meeting a stricter standard than is sug-

gested by the ‘as expeditiously as practicable’

language § 1857¢e-5(a)(2)(A). We can see value

in permitting a state to impose strict emission

limitations now, subject to individual exemptions

if practicability warrants: otherwise it may be

forced to adopt less stringent limitations in order

to accommodate those who,"netwithstanding rea-

sonable efforts, are as vet unable to comply. 478

F.2d at 887.

The First Cireuit’s observation merits serious con-

sideration to the practical effects of pre-attainment

stage procedures to be followed in approving state

variances. One of the primary eopneerns of the Act's

sponsors was that strict state and federal plans be im-

20

plemented at the earliest practicable moment. In the

Senate’s considerations of the Report of the Confer-

ence Connnittee on the amendments to the Clean Air

Act [H.R. 17255, 91st Cong.], Senator Muskie stated:

There was little doubt in the Senate, in September

[1970], that the country was facing an air pollu-

tion crisis. Cities up and down the east coast were

living under clouds of smog and daily air pollution

alerts. More than 200 million tons of contaminants

were being spilled into the air annually.

Unless we recognized the crisis and generated a

sense of urgency, national lead: times to find and

apply central measures could melt away without

any chance for a rational solution to the air pollu-

tion problem. S.ComM.ox PuBiic Works, A LEG-

ISLATIVE History oF THE CLEAN Aik AMENDMENTS

or 1970, Serial No. 93-18, 93d Cong., 2d Sess. 124-

125 (1974).

The Ageney’s promulgation of 40 C.F.R. § 50.32(f)

involving the revision authority should be viewed as

encouraging the immediate implementation of strict

ambient air quality standards. The regulations encour-

age the states to put into force strict standards as expe-

ditiously as practicable, allowing exemption only for

those who cannot technologically and practically meet

the standards.

The Ageney’s revision regulations are the founda-

tion upon which strict state implementation plans have

been based. Coiversely, if the postponement previ-

sions of section 110(f) are the exclusive variance pro-

cedure, weaker state plans would have been encouraged

in contravention of the Act’s very raison etre,

SSM EM AREER

ROLL ERR NCTE

PESO ORNL OPED

26

Reliance upon section 110(f) as the exelusive vari-

ance procedure would further thwart the expeditious

attainment of national ambient standards, by inject-

ing substantial delay in reaching those standards. The. _

rationale of the District Court in Delaware Citizens v.-

Stauffer Chemical, supra, while dicta to the court’s

holding that it lacked jurisdiction to review certain

acts of the Agency, is persuasive in discussing the effect

of subjecting every state request for pre-attainment

variances to the federal hearing provisions of section

110(f). The court declared:

If every revision in a control strategy, whether or

not it will prevent attainment of the national

standard by the date specified in the plan, necessi-

tated a federal hearing and review by § ¢-5(f)

standards, it could be expected that states would

approach the setting of ambitious control strate-

gies with great caution. Regulation 51.32(f)

-avoids:this pitfall and, at the same time, it pro-

vides maximum state involvement in control

strategy revisions which will not interfere with

attainment of a national standard. 6 ERC at 1151.

The delay which would result if every. state pre-

attainment variance necessitated an adjudicatory hear-

ing in the federal level would be insurmountable.”

For example, if the Fifth Circuit decision were upheld the

Ageney would arguably be required to hold formal publie adjudi-

catory hearings for over 800 variances granted under the Georgia

state plans, most of which have already been subject to a state

hearing. The magnitude of. the number of hearings required if

multiplied by the 50 states becomes gargantuan. Moreover, the

ensuing delays would thwart the Aect’s véry purpose of imple-

menting standards as ‘‘expeditiously as practicable’. Delays in

the holding of federal hearings could run into years. Sec, ¢.g..

Request Submitted by Governor of West Virginia under section

110(f); hearing held in January, February and October 1974,

for which a decision is still pending.

27

Moreover, recourse to a federal adjudicatory hearing at

the pre-attaiiment stage runs counter to the Act’s goal

of attaining national ambient air standards as expedi-

tiously as possible , [42 U.S.C. § 1857¢-5(a) (2) | since

the result mandated by section 110(a) is postponemeiit

of the effective date of the standards for up to one year.

Concurrent with weakening state implementation

plans and delaying the attainment of national ambient

air quality standards, the practical effect of relying

upon section 110(f) as the exclusive variance proce-

dure, would be the disruption of current implementa-

tion programs. The states, and industry within those

state¥, have relied upon the Agency’s revision author-

ity in planning pollution control programs. See,

Griggs. Duke Power Co., 401 U.S. 424 (1971) ; Udall

v. Tallman, 380 U.S. 1 (1965) heiding that where an

agency interpretation has been a matter of public

recgrd and where reliance on the regulation has been

at great expense, the Agency’s interpretation should

be given ‘great deference’? and upheld. 401 U.S. 424,

- 433-434 and 380 U.S. 1, 16-18. To deny the use of the

revision procedure as established by 40 C.F.R. § 51-32

in the pre-attainment period would disrupt the orderly

progress now underway, to meet the national ambient

air quality standards, generally set for mid-1975. The

revision authority asserted here does not affect the

deadline for complianee with national standards, and

as such the revision authority must not be. construed

to proseribe approval of interim variances prior to ihe

attainment date.

CONCLUSION

Therefore, for the foregoing reasons, the decision

of the Court of Appeals for the Fifth Cireuit, as it

pertains to the Agency’s authority to approve state

®.

ba i a

a a ee Te eT

eM a ane a ta a |

28

variances under section 110(a) (3), 42 U.S.C. § 1857e-

2(a)(3) prior to the mandatory attainment date for

national ambient air quality standards, should be

reversed,

Respectfully submitted,

Max N. Epwarps

JOHN Harpin YouNG

Collier, Shannon,

Rill & Edwards

1666 K Street, N.W.

Washington, D. C. 20006

Attorneys for the American Iron

and Steel Institute as Amicus

Curiae

Date: November 29, 1974