# Amicus Curiae Brief — Train v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0401%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 60 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0401%3A06. Public record. Not legal advice.