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

Supreme Court, U. S. &

FILED

IN THE | Be

Supreme Court of the United States ~~

OcTOBER TERM, 1974

No. 73-1742

RusseLL E. Tratx, Administrator, United States En-

vironmental Protection Agency and the UNITED

STATES . ENVIRONMENTAL PROTECTION AGENCY,

Petitioners,

v.

NaTuRAL Resources DEFENSE CouNnciL, INnc., SAVE

AMERICA’S VITAL ENVIRONMENT, JANEY WEBER,

SUSANNE ALLSTROM, Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE

EDISON ELECTRIC INSTITUTE

=

CAMERON F. MacRak

LeBoeur, Lams, Leipy & MacRAaE

One Chase Manhattan Plaza

New York, New York 10905

Attorney for

Of Counsel: Edison Elcetric Institute

Harry H. Voict

Henry V. NICKEL

Epwarp L. CoHEN

LeBoevur, Lams, Lerny & MacRae

1757 N Street, N. W.

Washington, D.C. 20036

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

i a)

INDEX .

Page

INTEREST OF AMICUS CURIAE ........... 20 cceeee cece 1

BACKGROUND ...00.cccccccccccvevcecccescvbscescsess 4

AMOUMENT nce i-* 66 oko ok oo ee eee ce heehee ewsen 10

I. Seetion 110(f) of the Act does not restrict the

authority of the States to revise their implemen-

tation plans in accordance with section 110(a)

OF TNE AOE oe hic 55 84 ah oes oe dacs onnseder 11

TI. Recent amendments to the Clean Air Act compel

the rejection of the interpretation of the court

DOIOW 6 inode cu deeds vieeseny ye ere ceeedsieeon 19

Ill. The interpretation of the court below may jeop-

ardize attainment of primary standaéds and is

not in the public interest .................... 21

CONCIUGIOMD 65a es 6056405 40 R Kee Rea OSE eR 26

CITATIONS

CAsEs:

Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir.

Uy i) eee eer ene ere erent et ae eer 10

Boyden vy. Comm’r of Patents, 441 F.2d 1041, 1048 n.3 13

Buckeye Power, Ine. v. EPA, 481 F.2d 162 (6th Cir.

DO al ire Ker ee Geos HERS OR bikes 10, 22, 23

Detroit Edison Co. v. EPA, 496 F.2d 244 (6th Cir.

BA. hea sn Ee eee eta ences eos 9,10

Duquesne Light Co. v. EPA, 481 F.2d 1 (5rd Cir. 1973)

10, 22

Eseoe v. Zerbst, 295 U.S. 490, 498 (1935) ........9%.. 18

Natural Resourees Defense Council v. EP.A, 478 F.2d

B75 fiat Cie: Bla) Sod exuecsSewsreeeeeceee 10, 11

Natural Resourees Defense Couneil v. PA, 483 F.2d

GUO (hth Ue Fl onde etiaw sree ieeieceeesas 10,11

Natural Resourees Defense Council v. EPA, 489 F.2d

390 (Sth Cir, 1974)°........ 2, 8, 10, 11, 14, 15, 16, 19, 21

il Index Co itinued

Page

Natural Resources Defense Coune?i v. EPA, 494 F.2d

BLS (90 Cie 1014). cox caeiexescees cedoeves east 10, 11

United States v. Allegheny-Ludlum Steel Corp., 406

, We ae, POM AAVIEL fevcisstwsnseaeneenusesees 10, 22

WAIT Radio v. FCC, 418 F.2d 1158, 1157 (D.C. Cir.

ROE. oak st ee icertaseceee pices ees eee ens ueee 10

STATUTES:

Clean Air Amendments of 1970, Pub. L. No. 91-604, 84

it. TOT CIS ao ibesans casa vxsees bows enuces :

Clean Air Act, 42 U.S.C. $1857 et seq. (1970), as

amended, Pub. L. No. 93-319, 88 Stat. 246 (1974) .. 2

$ 107, 42 U.S.C. $ 1857e-2 (1970) -s....5.6.2n 20s >

SR SR

1091 (a)(1)(A)} 42 U.S.C... § 1857e-4(a) (1) (A)

. 1970) Cees tach Paes eet ee Re «

§109(b) (1), 42 U.S.C. § 1857¢e-4(b)(1Y (1970) . - 2

$ 109(b) (2), 42 U.S.C. § 1857e-4(b) (2) (1970) . .4,

€110(a)(1), 42 U.S.C, § 8o7e-5(a) (1) (1970) .

$ 110(a)(2), 42 U.S.C. § 1857¢-5(a) (2) (1970) . a Tr

11; 3%, 15, 19, 22,23

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

SD OD OD

(SURO), Servet ciiaay been kas oa wks coed tk 3, Ae

$ 110(a)(2)(B), 42 U.S.C. e-5(a) (2) (B)

oe 54: ae og CO Meas rent, ren ee ee ees D,17

§110(a)(3)(A), 42 U.S.C. § 1857e-5(a) (3), as

amended, Pub. L. No. 93-319, 88 Stat. 256

C1974) | kasi se bax 6, 13, 14, 15, 16, 17, 18, 19, 20, 21

$ 110(a)(3)(B), Pub. L. No. 93-319, 88 Stat. 256

SE he sas oe ya et a ne hae Ow a 6, 20

§110(c), 42 U.S.C. § 1857¢e-5(c) (1970) ........ i)

$110(d), 42 U.S.C. § 1857e-5(d) (1970) ....6, 14, 16

$110(f), 42 U.S.C. § 1857¢e-5(f) (1970) . t 7, 10, 1,

14, 15, 16, 17, 19, 21, 22, 24

€110(f)(1)(C), 42 U.S.C. € 1857¢-5(f) (1) (C)

I ad a acuta 15

$113 42 U.S.C. § 1857c-8 (1970)......:........ 14

£119, Pub. L. No, 93-319, 88 Stat. 248 (1974)... 21

§ 202, 42 U.S.C, § I857£-1 (1970) «ee “21, 22

§ 302(h), 42 U S.C, §1857h(h) (1970) ......... 12

§ 304, 42 U.S.C § 1857h-2 (1970) .............. 14

Energy Supply and Environmental Coordination Act, |

Pub. L. No. 93-319, 88 Stat. 246 et seq. (1974) . .6, 20, 21

Index Continued ili

Page

MISCELLANEOUS:

116 Cone. Rec. 32918 (1970) Ee eee re 8

116 Coxa, Rac. 32901-02 (1970) ... 0c. ccc ccccscccncss i

116 Cone. Rec. 19200, 19204, 19205, 19206, 19207, 19209,

32918, 33116, 42382, 42384 (1970) ............... 12

TE OG, Se Fo 6 5.n 6.3 oo bb ek ee dacesese ue wess 12

116 Coxe. Rec, 42384 (1970) 2.2.0.2 eee cere ceee 12,15 ©

116 Coxe. Rec. 19205, 19207, 32903 (1970) ........... 18

116 Conca. Rec. 42386 1970)’. pee earenetane teense euee 18

S. Rep. No. 91-1196, 91st Cong. 2d Sess. 9-10, 11 (1970) 12

Il. Rep. No. 91-1783, 91st Cong. 2d Sess. 45 (1970) ...12, 15

If. Rep. No. 93-710, 98rd Cong. Ist Sess. 43 (1973) .... 20

Il. Rep. No. 93-1085, 98rd Cong. 2d Sess. 40 (1974) .... 20

40 CLE.R. Part A CAGES): ges nea gnwensasesenesee ses 4

40 C.F.R. § 91.2(h) CU? eo otencouece 8s eco edes ee 7

USS de Re Es Bg eh 0) (Pe

WO CP GLI (IGT) vo oi cc aces deccnes ES ere 18

BG 4e ee Bt) LAG). hae 6 ode de week weeweswens 7

36 Fed. Ree. ee Ee ES al ra xooues sia decetess 4

36 Fed. Rev.-15486 et seq. (1971) ........0cccccencss i,8

37 Fed. Reg. 10842 et seq. (1972) . 2... cece ee ee eee 8, 9, 2:

of Fed. Reg Pe MAO SednsetoressSackseeesanes 8

SS Fed. Rew. 22756 (1078) ok cckcacscssccctavesss 19, 24

38 Fed. Reg. 23339 (1973) ........-.ececccceceececs 23

38 Fed. Res. BOOT CPO ohceivarusinktsue see esaes 23

539 Fed. Reg. pS ES Bg eh ENG meee rarer a ere eee 23

39 Fed. Reg. Re SE. aise Soc wren Pewee eee ewses 9

D.C. Ruies anp Reauiations $$ 8-2:704, 705, 706,708,

TR Ps eae Has se eee 9, 22

Micu. Apur. C opE 5 Se aan ge a eore eae aren wa 9

Gey. Laws HA; $.23-26-15 .......02cccsee% tame ten 9

eke ee Oe eo | Ee re ree a 9

ER Ors Ae ES eRe a 9

Hearing Examiners’ Report and Recommendations,

In re Consolidated FElectrie Utility Cases, No.

73-A-P-120 (Ohio EPA, Sept. 6, 1974) .......... 22

SuTHeErRLAND & Jabez, STaTUTES AnD StatuTory Con-

struction § 2803 (3d ed. 1943) ............0008- 13

wren, /

IN THE

Supreme Court of the United States

OcToBER TERM, 1974

No. 73-1742

Russevtt FE. Trax, Administrator, United States En-

vironmental Protection Agency and the UNITED

SraTES ENVIRONMENTAL PROTECTION AGENCY,

Petitioners, ;

v.

NaturaL Resounces DEFENSE CounciIL, INc., SAvE

AMERICA’S VitTaL ENVIRONMENT, JANEY WEBER,

Susanne Atsstrom, Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE

EDISON ELECTRIC INSTITUTE

In compliance with this Court’s Rule 42, Edison

Klectrie Institute has received the written consents of.

counsel for the parties to file this brief amicus curiac.

Copies of the consents have been filed with the Clerk.

INTEREST OF AMICUS CURIAE

Edison Electric Institute (‘EEL’) is the principal

national association of eleetrie utility companies, hav-

ing as its members. 198 companies that supply elec-

RA WALA G|

< J

tricity to 77.6 percent of all the electrie service cus-

tomers in the United States. EEI submits this brief

in support of reversal of the Fifth Circuit’s decision

in this case."

Member companies of EEL operate some 1800 steam-

electric generating plants that are subject to regula-

tion under the Clean Air Act (‘‘the Act’’)* and the

State implementation planus adopted under the Act.

Those implementation plaus were initially drawn up

under a statutory deadline that did not permit the

accumulation and evaluation of all necessary data.

Accordingly, many State plans contained limitations

and deadlines that were conecededly arbitrary. Since

both the Act and EPA regulations gave ample latitude

for plan revisions, this was uot considered to be detri-

mental where the States included procedures to revise

their plans as more data became available. Under the

decision below, however, such revisions are virtually

ruled out.

Under the approach taken by the Fifth Cireuit,

plants operated by EEI member compatties may be

required to comply with limitations or deadlines that

are wholly unrealistie and unnecessary to achieve and

maintain primary and secondary ambient air quality

standards under the Act. Electrie rates to the con-

1 Natural Resources Defense Council v. EPA, 489 F.2d £0 (Sth

Cir. 1974). Wereinafter ‘‘Natural Resources Defense Council’’

will be referred to as ‘‘NRDC.”’

*42 U.S.C. $1857 et seq. (1970), as amended, Pub. L. No. 3-

319, 88 Stat. 246 1974). For convenience, all references will be to

the section numbers of the Clean Air Act rather than the United

States Code; citations to both appear in the Table of Citations.

3

sumer have already increased dramatically as a result

of inflation ‘and soaring fuel costs. Rate increases are

being sought throughout the country to finance new

coustruction of facilities that are needed to meet future

energy demands. No additional costs should be im-*.

posed on the industry and the consumer to meet pollu-

tion control requirements that go beyond those needed

to protect the public health and welfare from adverse

effects. The States should retain maximum flexibility,

consistent with the provisions of the Act relating to

implementation planus, te adjust such requirements in

a realistic fashion.

Another effect of the decision below may be to force

EEI member companies to use less coal and more oil

or to switch from high-sulfur to low-sulfur fuels. If

the States are forbidden to revise their implementa-

tion plans to permit the use of fuel on an optimutA

basis. the Nation's eurrent dependence upon imported

oil will only be exacerbated, and the directive of the

Clean Air Act that the States achieve a level of air

quality necessary to protect the publie health by mid-

1975 may he jeondrdized.

, It may be thought that the question hefore this

Court is too narrow to evoke the concern of EET. Since

the mid-1975 deadline for compliance with National

primary ambient air quality standards under the Clean

Air Act is rapidly approaching..a limit on the author-

ity of the States to grant ‘‘pre-attainment”’ variances

(subject, of course. to EPA approval as a revision to

their implementation plans) may appear to have di-

minishing significance. Tlowever, the rationale of the

Fifth Cireuit would severely restrict the authority of

the States not merely to grant such “pre-attainment”™

4

Wen Vest tees ia |

4

variances, but also to permit continued operation by

many sources that are not interfering with primary

standards. The broader implications of the decision

helow will continue to hamper the States long beyond

1975. Thus, the Fifth Circuit’s decision is of consid-

erable and continuing significance.

LEI urges that the decision of the lower court is

neither required by the Act nor consonant with its

purposes. Because of its broad impact, EET believes

that it is essential for this Court to reject the reason-

ing of the Fifth Cir@uit and reverse its_holding +e

stricting the authority of the States to adopt revisions

of their air quality implementation plans.

BACKGROUND :

On December 30, 1970, the Clean Air Amendments

of 1970 beeame law.’ Those amendments restructured

the Clean Air Act and established a rigorous program

for the control of air pollution through the establish-

ment and implementation of Federal primary (health-

related) * and secondary (welfare-related) > ambient

air quality standards,

Under section 109 of the Act, as amended in 1970,

the Administratér was to promulgate standards for

five pollutants, including sulfur oxides, within 120 days

of enactment.°

4

> Pub. L. No. 91-604, 84 Stat. 1676 (1970).

* Clean Air Act $109(b) (1).

5 Clean Air Act § 109(b) (2).

®Clean Air Act § 109(a)(1)(A). Standards for six pollutants

were promulgated by the Administrator on April 30, 1971. 36

Fed. Reg. 8186 (1971); 40 C.F.R. Part 50 (1973).

-

0

Section 110(a) (1) of the Act required each State to

hold hearings on, adopt, and submit to the Adminis-

trator a plan which provides for implementation, main-

tenanee, and enforcement of each Federal primary and

secondary ambient air quality standard in each ‘‘air

quality control region’’* within the State.

The States were given nine months from the pronml-

gation of standards to submit their plans. Section

110(a)(2) of the Act required the Administrator to

‘approve or disapprove’’ the plan within four months

of submission. The Administrator was directed to ap-

'

HUAN AY ANG ACR OE LID ail

prove the plan if it met cight specific statutory criteria.

A plan to implement a primary standard was to pro-

vide ‘for the attainment of such primary standard as

expeditiously as practicable but... in no case later

than three years from the date of approval of such

plan... .’’* A plan to implement a secondary standard

was to specify a “reasonable time’’ for attainment of

the secondary standard.’ Tn addition, any plan was to

include ‘‘emission limitations, schedules, and time-

tables for compliance with such limitations and such

other measures as may be necessary to assure the at-

tainment and maintenance’ of Federal ambient air

quality standards."

If the Administrator disapproved the plan or any

portion thereof, he was to promulgate regulations to

eure the deficiency in the plan." Following, approval

*

7 The entire. geographical region of each State is divided into

one or moré “‘air quality control regions.’* Clean Air Act $ 107.

8Clean Air Act § 110(a) (2) (A) (i).

* Clean Air Act §110(a) (2) (A) (ii).

10 Clean. Air Act §$110(a)(2)(B) (emphasis added).

11 Clean Air Act $110(e).

6

or promulgation of a plan, seciion 110(a)(3) of the

Act * directs the Administrator to approve any revi-

sion to a plan adopted by the State after reasonable

notice and hearing that meets the requirements of sec-

tion 110(a)(2). By necessary implication, so long as

those requirements are met, a revision may relax, as

well as tighten, specific provisions of a State imple-

mentation pla.

In addition, section 110(f) provides that ‘*[p]rior

to the date by which any source or class of sources is

required fo comply with any requirement of an applie-

able implementation plan’ the Governor of the State

may apply to the Administrator ‘*to postpone the ap- -

plieability of such requirement ... for not more than

one vear.’’ To grant the postponement, the Adminis-

trator must find that:

a. good faith efforts have been made to comply;

b. necessary technology or alternative methods of

control are not available or have not been avail-

able for a sufficient period of time;

e. any available alternative operating procedures

and interim controls have reduced or will reduce

the impact of thesource on the publie health: and

12 Throughout this brief, reference is made to section 110(a) (3).

Although the section was renumbered $ 110(a)(3)(A) under Pub.

L. No. 93-319, 88 Stat. 256 (1974), the original section reference is

~used for convenience. For discussion of § 110(a)(3)(B), see p. 20

infra.

3 Clean Air Act $110(d) defines ‘‘an applicable implementa-

tion plan’’ as *‘the implementation plan, or most recent revision

thereof, which has been approved under subsection (a) or promul-

gated under subsection (¢) and which implements a national pri-

mary or secondary air quality standard within a state.’’ (Em-

phasis added.)

7

d. continued operation is essential to the national

security or public health and welfare.

Public notice is required, and, if requested, an adjudi-

eatory ‘hearing must be condueted before a section

110(f) postponement can be granted.

In August 1971 EPA established gene ‘al guidelines

for preparation, adoption and submission of State im-

plementation plans."* EPA recognized that different

sources would have different impacts on ambient levels

ie

a

hy

&

3

*

&

*

£

ho

ye.

&

e

Py

%

of potlitants and that the ambient ter cts-of-polntants

would vary within a region, Accordingly, the guide-

lines provided that the States were mot required ‘*to

adopt a control strategy uniformly applicable through-

out a region unless there is no satisfactory alternative

way of providing for attainment and maintenance of

ambient standards throughout such region.’’”? In ad-

dition, the guidelines emphasized that the States

should not adopt a control strategy without consider-

ing the ‘‘eost effectiveness’’? and the “social or ceo-

nomie impact of a control strategy.’’”* Finally, the

regulations expressly stated that the States could revise

their plans to relax requirements that proved to be

more stringent than the Act required.” °

The task facing the EPA and the States in August

1971 was staggering. Fach region had to be monitored

to determine whether and where ambient standards

were being exceeded; all sources of pollution had to

be inventoried; diffusion models had to be prepared

1436 Fed. Reg 15486 (1971).

1536 Fed, Ree. 15487 (1971); 40 C.F.R. §51.2(¢) (1973).

16 36 Fed. Reg. 15486, 15487 (1971) ; 40 C.F.R. $ 51.2(b) (1973).

1736 Fed. Reg. 15494 (1971) ; 40 CFR. § 51.32(f) (1973).

8

to determine what controls were required to attain the

standards; the social and economic impact of alterna-

tive control strategies had to be evaluated; specific

eontrols had to be defined; schedules had to be set to

achieve compliance with those controls; hearings had

to be held in each State; and EPA had to review the

final product to determine ’whether it met the require-

ments of the Act.” All of these steps had to be com-

pleted in less than a year.

tHtowas simpty tmpossible for the States to perform

all of the analyses required to develop a finely-tuned

regulatory program within that first vear. Monitoring

data on souree emissions and ambient concentrations

of pollutants were incomplete; there was insuificient

time to inventory sources and develop diffusion models

to determine which sources were contributing to vio-

lations of standards: and detailed information was not

available on the feasibility of, or time required for,

compliance by each source with the controls proposed

by the States." Therefore, the States took a broad-

18 See generally 116 Conc. Rec. 32918 (1970) (remarks of Sen-

ator Cooper) ; NRDC v. EPA, 489 F.2d at 394; 36 Fed. Reg. 15486

(1971).

™ The development of State plans to implement ambient air

quality standards for nitrogen oxides provides a striking example

of the imperfect nature of the plan development process. EPA’s

original monitoring data on nitrogen oxide concentrations disclosed

violation of the standards in thirty-five States. As a result, EPA

disapproved a number of State plans for their failure to impose

rigid controls on nitrogen oxide emissions from stationary sources.

37 Fed. Reg. 10842 (1972). Following disapproval, EPA pub-

lished proposed regulations for those plans that would have re-

quired eostly modifications in existing facilities. See, e.g., 37 Fed.

Reg. 11826 (1972). Prior to promulgating any of these regula-

tions, however, EPA completed a national study of nitrogen oxide

—

9 ‘

brush approach in initially establishing control strate-

gies. It was intended that those control strategies

would be re-examined and refined later.

Most States set categorical emission limitations that

applied throughout the State (or throughout a re-

gion).”’ In certain cases, those emission requirements

were made effective immediately * while, in others, the

requirements were to be effective on July 1, 1975, or

.egome_date before 1975. ‘The States recognized, how-

ever, that such control strategies weye more stringent

than the Act required and therefore p ovided for case-

by-case exceptions with the burden of proof on the

source operator. Procedures were included in State

plans to relax compliance dates, or even to exempt

sources from the emission requirements in the plan,

where compliance was not needed to attain or maintain

ambient standards.“ In addition, procedures were in-

eluded to defer compliance where compliance was not

technically or economically feasible.” Those proce-

dures allowed the States to determine at a later date

issues that could have been resolved when the plan was

‘ambient levels. This study showed that nitrogen oxide standards

were being exceeded in only three air quality control regions in

the entire country. As a result, the EPA disapproval notices

and proposed regulations were withdrawn. 39 Fed. Reg. 16344

(1974).

2037 Fed. Reg. 10843 (1972).

21 Sec, e.g., D.C. RuLes & ReevuLaTIONs §§ 8-2 :704, 705, 706, 708.

710, 731.

22 See, e.g., Micu. Apuix. Cope R336.49. See also Detroit Edison

Co. v. EPA, 496 F.2d 244 (6th Cir. 1974) ; 37 Fed. Reg. 10845-46

(1972).

23 See, e.g. GEN. Laws RI. § 23-25-15; Iowa Cope ANN.

§ 136B.13; Ga. Cope ANN. § 88-912.

10

adopted had the States had time to develop more sophis-

ticated contro] strategies in the first instanee.*

ARGUMENT

The court below was one of four circuits to set aside

the Administrator’s approval of State ‘“‘varianece pro-

cedures”? designed to provide relief from requirements

in the State plan.” The other cireuits fecused on the

impermissibiliiy Leoxeept HY eohiphaner witt seetion

110(f) of the Act) of extending compliance with re-

quirements that were necessary to protect the publie

health (7.¢., requirements needed to attain primary

standards) beyond mid-1975.% Each of those circuits

recognized, however, that the States could revise their

planus to change pre-1975 deadlines for compivnee with

such requirements upon a finding that compliance was

*4 The Administrator’s approval of State plans was challenged in

three circuits on thé ground that to comply with the control

strategy set forth in the plan was not technologically or eeonom-

ically feasible. Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir.

1973) : Duquesne Light Co. v. EPA, 481 F.2d 1 (8rd Cir. 1973);

Appalae ‘hian Power Co. v. EPA, 477 F.2d 495 (4th Cir. 1973).

Each cireuit held that EPA must consider the technical and eco-

nomic feasibility of compliance with a control strategy in deter-

mining whether to approve-a State plan. Certainly, more petitions

would have been filed had not the plans included ‘‘safety valve’’

procedures which established a mechanism for plan revision based

on specific cireumstances. Sec Detroit Edison, 469 F.2d 244 (6th

Cir. 1974). e- United States v. Allegheny-Ludlum Steel Corp.,

406 U.S. 742, 755 (1972); WAIT Radio v. FCC, 418 F.2d 1153,

1157 (B.C. Cir. 1969), :

*NRDC vy. EPA, 494 F.2d 519 (2d Cir, 1974); NRDC v. EPA,

489 F.2d 390 (5th Cir. 1974): NRDC v. EPA, 483 F.2d 690 (8th

Cir. 1973) ; NRDC v. EPA, 478 F.2d 875 (1st Cir. 1973).

2 NRDC EPA, 494 F.2d at 523 (2d Cir. 1974); NRDC \

EPA, 483 F. 2a at 693-94 (Sth Cir. 1973) ; NRDC ¥. EPA, 478 F. 2d

at 887 (1st Cir. 1973).

a2 .

11

not ‘practicable.”’ ** In contrast, the court below held

that section 110(f) precluded any revision in State

plans to change the date by which a source was re-

quired to comply with au approved emission limi-

tation.”*

Under the Fifth Circuit holding, compliance dates

in the plans originally approved by the Adininistrator

are fixed in concrete and cannot be changed even

though compliance is “impracticable” or “unreason-

able’? or wholly winecessary to attam and maintain

ambient standards. The only relief available to the

States and source operators is a ‘tone-year postpone-

ment’? under section 110(f). This is an unwarranted

restriction on the authority of the States to revise their

implementation plans when new evidence shows that a

requirement in a plan is more stringent than the Act

demands. This Court should reject the rationale of

the court below that the States are prechided from

adopting proposed revisions that would extend com-

pliance deadlines in a manner consistent with section

110(a) (2) of the Act.

I.

Section 110(f) of the Act does not restrict the authority of the

_ States to revise their implementation plans in accordance

with section 110(a) of the Act.

Both the language of section 110 of the Clean Air

Act and its legislative history compel rejection of the

holding below that Congress intended section 110(f)

to preclude the States from revising State implemen-

tation plans to change compliance deadlines.

Under the Clean Air Act, primary standards must

protect the ‘public health”? with an ‘adequate margin

** fd.

28.489 F.2d at 401-03.

12

of safety’’ from the adverse effects of pollution.” <Ac-

cordingly, in section 110(a), Congress directed that

those standards be attained as expeditiously as prac-

ticable but not later than a fixed deadline.” Secondary

standards, on the other hand, protect the ‘* public wel-

fare’’ against ‘‘any known or anticipated adverse ef-

fects’? of pollution.“ Because social, economic, or

technological considerations may dictate delaying at-

tainment of those standards, Congress provided that

they be met within a ‘‘reasonable”’ time.” Primary

and secondary standards together provide the degree

of protection needed to avoid virtually any adverse

effect from pollution. Thus, Congress only required

the States’ to impose controls that are necessary to

attain and maintain ambient standards.” Congress

*°Clean Air Act §109(b)(1). See S. Rep. No. 91-1196, 91st

Cong. 2d Sess. 9-10 (1970).

3° Clean Air Act § 110(a)(2)(A) (i). See 116 Cona. Rec, 32901-

02 (1970) (remarks of Senator Muskie). _ .

31 Clean Air Act $109(b)(2). The ‘‘eff welfare’’ are de-

fined to include ‘‘effects on, soil, water, , vegetation, man-

made materials, animals, wildlife, weather, visibility, and climate,

damage to and deterioration of property, and hazards to transpor-

tation, as well as. effects on ecunomie values and on personal com-

fort and wellbeing.“ Clean Air Act §$302(h). See S. Rep. No.

§1-1196, supra note 29, at 11.

82 Clean Air Act $110(a) (2)(A) (ii). See H. Rep. No. 91-1783,

91st Cong. 2d Sess. 45 (1970). 116 Cona. Rec. 42384 (1970).

%3- Throughout the debates, State implementation plans were

discussed exclusively in the context of attainment and maintenance

of ambient air quality standards. 116 Cone. Ree. 19200, 19204,

19205, 19206, 19207, 19209, 32918, 33116, 42382, 42384 (1970).

Establishing more stringent controls was left to the discretion of

the States: *‘| W]e say that all the states must comply with nation-

wide standards. We think this is the best we can do. If any state

wants stronger standards, we think-it will know best what it should

do or how far it should go."’ Id. at 19205 (remarks of Mr. Stag-

gers) (emphasis added).

13

recognized that, as new information became available,

the requirements of plans originally adopted by the

States might prove to be more, or less, stringent than

the Act required. Asa result, the Act provides that

States may revise their plans.”

In mandatory terms, section 110(a)(3) of the Act

provides that the Administrator “‘shall approve any

motes FER ROL EP PES AA SES —

m\

revision of an tmplomextation plan” 1f it meets the

requirements of section 110(a)(2) and was adopted

after reasonable notice and public hearing.” Thus,

the Act Clearly authorizes the States to make ‘*mid-

course’ corrections in their plans. Applying the eri-

teria of section 110(a)(2), where compliance with a

primary standards requircment is not **practicable,”’ a

plan may be revised to extend compliance up to the

mandatory attainment date for primary standards.

Similarly, where primary standards have been or will

be achieved by the statutory deadline, a plan may be

revised to extend compliance with any secondary stand-

ards requirement if compliance is not ‘‘reasonable.’’

Finally, where compliance is not required to achieve

either primary or secondary standards, a plan may be

revised to extend compliance so long as the extension

will not interfere with the maintenance of those stand-

ards. A source owner is not relieved from compliance

with the original plan, of course, until the Adminis-

trator approves the revision submitted by the State

34 Clean Air Act $110(a) (3).

33 The word ‘‘shall’’ indicates a mandatory intent. ‘‘Shall”’

is the language of command. See Escoe v. Zerbst, 295 U.S. 490,

493 (1935). Sce also Boyden vy. Comm’r of Patents, 441 F.2d

1041, 1043 0.3 (D.C. Cir. 1971); SuTrHeRLAND & JABEZ, STATUTES

AND STATUTORY CONSTRUCTION § 2803 (3d ed. 1943).

14

and, by that action, changes the implementation plan

itself.*"

Section 110(a)(3), which allows the States to make

revisions to plans, is not inconsistent with seetion

110(f), which allows the States to request a one-year

postponement in the ‘applicability’ of a plan require-

meut,

Under the Act, once an implementation plan is ap-

proved by the Administretor, the requirements in that

plan have the foree of law and must be complied with

unless. and until that plan is changed to include dif-

ferent requirements... Section 110(f) establishes a

iimited exception to this general rule under which the

‘applicability’ of an effective plan requirement may

be postponed if certain rigid criteria are met.” Tn

this sense, the Court below was correct in stating that

section 110(f) is ‘‘the exclusive mechanism for grant-

ing variances from requirements of state implementa-

tion plans.”’** Since section 110(f) does not change

the plan itself, it is proper ‘to characterize the relief

as a limited ‘‘variance’’ from the plan requirements.

It does not follow, however, that the States may not

change the compliance dates of their plans under see-

tion 110(a) (3) to establish new plan requirements.”

36 Under sections 113 (Federal Enforcement) and 304 ( Citizens’

Suits) of the Act, an enforcement action may be brought in Federal

District Court for violation of any requirement in an applicable

implementation plan. Changes in implementation plan require-

ments are not effective until they are approved by the Administra-

tor as a reviston to the plan. See Clean Air Act § 110(a) (3) and

(d).

37 Pp. 6-7 supra.

38489 F.2d at 399,

3° Td. at 401.

15

Where an existing plan is more stringent than the

Act requires, a State has two choices: It may either

seek a change in the plan requirement pursuant to sec-

tion 110(a)(3) or it may request a one-year postpone-

ment in the plan requirement pursuant to section

110(f). Where the plan itself carmot be revised be-

cause a change would be inconsistent with the require-

ments of section TT0Ca)(2), a postponement under

section 110(f) is the only relief.available. Since post-

ponement requests would usnally be made where the

delay would jeopardize attainment of primary -stand-

ards by the statutory deadline, it is understandable that

Congress set stringent criteria to restrict the use of

section 110(f).*" a

The language of section 110(f) does not limit the

authority of the States to adopt, or the duty of the

Administrator to approve, any revision in a plan that

satisfies the requirements of section 110(a) (2).

The court below held’ that the reference in section

110(f) to ‘‘any stationary source’’ and ‘‘any require-

ment of an applicable implementation plan... lends

no basis for [a] construction’’ that would allow plan

revisions that relax compliance dates." However,

while the Fifth Cireuit waS concentrating on the word

“any’’, it was ignoring the statutory definition of ‘‘an

4 The very structure of section 110(f) presumes a situation

where primary standards are being violated. For example, the

Administrator must find that ‘tany available alternative operating

procedures and interim contre] measures have reduced or Will re-

duce the impact of such source on public health ....’" Clean Air

‘ 4 1s 2 ; >

Act $110(f)(1)(C). The meager legislative history of the section

discloses that it was adopted in the context of extensions in at-

tainment of primary standards. HH, Rep. No. 91-1783, supra note

32, at 45; 116 Cone. Rec. 42384 (1970),

41489 F.2d at 401 (emphasis in original).

16

applicable implementation plan.’’. When that defini-

tion is considered, it is clear that the lower court was

.mistaken in concluding that plans cannot be revised to

change compliance dates.

Section ets) de fines ‘an applicable implementa-

tion pian”’ as ** mentation pl: . :

‘

revision’ fered which bas been approved under sub-

section (a) or promulgated under subsection (¢) and

which implements a national primary or secondary

ambient air quality standard within a state.” Thus,

the phrase ‘tany requirement of an applicable imple- —

mentation plan” does not limit the authority of the

States and EPA to revise a plan. To the contrary, an

‘applicable implementation pki’? expressly ineludes

its *‘most recent revision ... approved undey suhgec-

en).

The ¢ourt below attempted to justify its interpreta-

tion of section 110 by asserting that ‘‘the proceduress

of section... [110](f) were to apply to all particular

changes and those of section... [110](a) (3) to changes

in rules of general applic ation. "# This unsupported

assertion is then followed by a statement that “Tt}here

is no reason to believe that Congress intended some,

indeed most. changes of a particular character. should

he deemed ‘revisions’... .”7" The Fifth Cireuit’s

holding that the States cannot make ‘*source specifie”’

changes in their plans under section 110(a) (3) is with-

out foundation.

_——_———-

42 7d,

“Jd, But sce note 55 infra.

{

/ ; }

17

First, the rationale of the Fifth Circuit is based on

the assumption that section 110(f) establishes a spro-

cedure for **partieular changes.”” As mentioned above,

arbi section 110(f) does not establish a procedure

»*change’’ a plan: it establishes a procedure to post-

ra the “application” of an existing plan require-

bad

ment:-—Fhis-the voneinsion that section TOE) some-

how limits the type of *‘changesx"’ a State may adopt

under section 110(a) ( 3) is premised on a false as-

sumption,

Second, while section 110(a) (3) applies to ‘changes

in rules of general application,’ there is nothing in

the language of the Act to suggest that those changes

cannot be of a ‘particular character.”* As mentioned

above, the Act only requires the States to set limita-

tions that are ‘necessary for the attainment and main-

tenance’ of ambient standards.4 EPA‘: regulations

relating to implementation plans provide that the

States are not required to establish *‘a control strategy

uniformly applieable throughout a region unless there

is no satisfactory alternative: way of providing for

attainment ond maintenance of ambient standards

throughout such region.’ ® Thus, both the Aet and

the regulations provide for the development of sophis-

ticated control strategies under which different sources

would meet different requirements, depending upon

the impact of the souree on ambietit standards, Fur-

thermore, section 110(a)(2)(B) requires that plans

include ‘schedules and timetables for compliance’

with emission limitations. The time required for a

particular source to comply with an emission limita-

4 Note 33 supra.

% 40 C.F.R. $51.2(¢) (1973).

18

tion will vary. Thus, this section requires (as do EPA

regulations)" that plans include source specific com-

pliance schedules and deadlines that are consistent

with the statutory directives regarding attainment of

wnbient standards. Since the Act envisages that State

plans include control strategies. and schedules of ‘a

‘particular character,’ it cannot be inferred that see-

tion 110(a)(3) precludes the States from adopting

revisiens of a “particular character.”

Finally, the interpretation of the Fifth Cireuit is

inconsistent with the legislative history of seetion 110.

That legislative history is replete with statements em-

phasizing the broad discretion given the States under

section 110.7 As Senator Muskie stated during the

final debates: :

[DJuring the deliberations on the bill I have been

very much interested in preserving *‘loeal option”?

features, so that State and local authorities would

be able to pursue options among a> broad array,

seeking a possible way of controlling or prevent-

ing air pollution that is most responsive to the

nature. of their air pollution problem and most

responsive to their needs. In my judgment, the

bill will give State and local authorities sufficient

latitude in selecting ways to prevent and control

air pollution.

If a State may only make ‘‘general”’ changes in its

plan under section 110(a)(3), it must either relax —

requirements for all sources in a region or not revise

the plan, even though a revision is needed for only

4640 C.F.R.,§ 51.15 (1973).

7 Nee, ¢.g.. 116 Cone. Rec. 19205, 19207, 32903 (1970).

‘$116 Cone. Rec. 42386 (1970).

19

one source. Similarly, where only one source is creat-

ing a pollution problem, a State would be required to

impose new and stringent requirements on all sources.

Certainly, such a result does not allow the States to

select the means of controlling pollution ‘that is most

responsive to their air pollution problem and most

responsive to their needs.”

Il.

Recent amendments to the Clean Air Act compel the rejection

of the interpretation of the court below.

KPA has consistently interpreted section 110(a) (3)

of the Act to allow the relaxation of compliance dates

for individual sources through revisions to State imple-.

mentation plans.” Predicated on this interpretation

of the Act, EPA, in December 1972, formulated its

“clean fuels policy’? under which States were encour-

aged to adopt source specific revisions to their plans in

a manner consistent with section 110(a)(2). On Au-

gust 23, 1973, EPA reiterated its policy:

States are encouraged again to consider the

alternatives available to them awithin the frame-

work of the Clean Air Act. Modification of wn-

necessarily restrictive emission regulations, relard-

tion of final complianec dates for sources which

need not be controlled to meet the primary stand-

ards, and requests for postponements under _

tien 110(f) are all mechanisms to alleviate the

short-term fuels problem.”

The Fifth Cireuit rejected EPA’s interpretation of

tion 110(a) 03) and, as a result. rejected an un-

portant clement of the Agency's clean fuels policy.

9 489 F.2d at 400-01.

5038 Fed. Reg. 22736 (1973) (emphasis added). Sce pp. 23-24

supra.

,-

Fi

eR RE HRI Be ge,

aT

20

Subsequent to the Fifth Circuit decision, Congress

enacted the Energy Supply and Environmental Coordi-

nation Act of 1974 to deal with the national energy

crisis." Among other things, that statute amended

section 110(a) (3) by adding a new subsection. The new

subsection requires the Administrator to take affirma-

tive steps to implement EPA’s clean fuels policy by

assisting the State to identify ummecessarily restrictive

plan requirements.” Under section 110(a)(3)(B) of

the Act, as amended, the Administrator is required to

review each State plan .and report to the State

‘‘whether ... such plans ean be revised in relation to

fuel burning stationary sources (or persons supplying

fuel to such sources) without interfering with the

attainment and maintenance of any ambient air quality

standard within the period permitted in this section.”’ *

“1 Pub, L. No, 93-319, 88 Stat. 246 (1974).

52 Clean Air Act §110(a)(3)(B), Pub. L. No. 93-319, 88 Stat.

256 (1974). The Conference Report states that the intent of this

provision is ‘‘to permit a mechanism by which EPA’s clean fuels

policy can be implemented to the extent that States agree to do so

and by which conversions to the burning of coal can be effectuated

more readily consistent with requirements of the Clean Air Act.”’

H. Rep. No. 93-1085, 93rd Cong. 2d Sess. 40 (1974).

** An earlier version of the Act would have given the Adminis-

trator even broader responsibilities and powers. The bill reported

by the House Committee on Interstate and Foreign Commerce in

December 1973 would have required the Administrator, not only

to review State plans, but to ‘‘disapprove State plans .. . which

are economically or technologically infeasible ....’’ Hi. Rep. No.

93-710, 93rd Cong. Ist Sess. 48 (1973).

The Energy Supply and Environmental Coordination Act also

amends the Clean Air Act to give the Administrator limited an-

thority to suspend certain requirements in State implementation

plans without the prior consent of the States. Clean Air Act § 119,

&

21

Thus, by its amendment, Congress has affirmed EPA’s

interpretation of section 110(a)(3) and has rejected

the interpretation proffered by the Fifth Circuit.

Ill.

The interpretation of the court below may jeopardize attain-

ment of primary standards and is not in the public interest. :

The decision of the court below in effect penalizes

the States for initially adopting plans that were more

stringent than necessary to meet primary standards by

the statutory deadline or were more stringent than

necessary to achieve secondary standards within a **rea-

sonable time.’ * It is improper to assume, as the Fifth

Cireuit did, that Congress intended States to ignore

changed cireumstances or new information and he

bound forever by decisions made in early 1972. Such an

assumption has no support in the legislative history

of the Act ® and ignores the reality of implementation

Pub: L. No. 93-319, 88 Stat. 248 (1974). Such authority is new.

Under the Act as passed in 1970, the Administrator did not have

authority to relax implementation plan requirements on his own ini-

tiative; the States either had to request a revision under section

110(a)(3) or request a one-year postponement under section 110

t}:

34 Certainly, such a result is not in the public interest and may

encourage a far more cautious approach on the part of the States

in the future.

™3 See notes 33, 47 & 48 supra. To support its interpretation,

the Fifth Cireuit relied on statements from the legislative history

relating to the importance of meeting controls necessary to pro-

tect the ‘health of persons’’ by a fixed deadline. 489 F.2d at 401.

Such statements do not, however, provide any support for the prop-

osition that the States cannot relax requirements that prove to be

morc stringent than is necessary to achieve primary standards by

the statutory deadline. The court also relied on the legislative his-

tory of section 202 of the Act. Id. That Congress intended that

technology in the automobile industry ‘‘catch up with’’ the auto-

ae

kl ele Se aed wie

Tae CREAR a8

22

plan development.” Moreover, the Act should not be

interpreted in a way that would jeopardize attainment —

of primary standards by the statutory deadline. That,

however, may be the result if the interpretation of the

Fifth Circuit is accepted by this Court.

As discussed above, when the States adopted their

plans, they lacked the time and resources to develop

sophisticated control strategies. As a result, many

States adopted uniform control strategies to assure

that any source contributing to vielations of primary

standards would reduee its emissions to attain those

mobile *‘ emission standards’’ under section 202 is irrelevant to the

authority of the States to relax requirements relating to ambient

standards under section 110 of the Act.

Moreover, as this Court stated in United States v. Allegheny-

Ludhim Steel Corp., 406 U.S, 742, 755 (1972): ‘*It is well estab-

lished that an ageney’s authority to proceed in a complex area

... by means of rules of general application entails a concomitant

authority to provide exemrtion procedures to allow for special

circumstances.”’’ An interpretation of the Act that allows plan

revisions whenever the requirements of section 110(a)(2) are met

is consistent with this principle. The Fifth Circuit’s interpreta-

tion is not. Even the limited relief provided by section 110(f)

may not be available where, for example, a plan requirement was

immediately effective. Under section 110(f), the Governor of a

State must request a postponement ‘*|p|rior to the date on whieh

any stationary source ... is required to comply with any require-

ment of an applicable implementation plan.’’ (Emphasis added.)

8 Cf. Duquesne Light Co. v. EPA, 481 F.2d 1, 9 (3rd Cir. 1973).

Following the remand in Buckeye Power, Inc. v. EPA, 481 F.2d 162

(6th Cir. 1973), the Ohio Environmental Protection Agency held

extensive hearings on the limitations in the Ohio plan. The Hear-

ing Examiners found that many of those limitations were both un-

necessary and unreasonable and recommended significant changes

in the Ohio plan. Hearing Examiners’ Report and Recommenda-

tions, 7n re Consolidated Electric Utility Cases, No. 73-A-P-120

(Ohio EPA, Sept. 6, 1974).

23

sources within the State, were more stringent than the

Act required. However, the Act and EPA’s regula-

tions provided for future changes in plans, and the

States included procedures under which unnecessary

or unreasonable requirements could be relaxed.”

When EPA approved State plans in May 1972, it was

recognized that it might not be possible for all sources

to mect the sulfur oxide requirements and deadlines

that were included in most State plans.** With the

idvent of the energy crisis, any owners of sources

that bad planned to comply with State plans through

conversions to low sulfur fuels found that they, could

not use such fuels.” Thus, compiiance with deadlines

that might have been reasonable when plans were

adopted beeame impossible since those deadlines were

predicated on abundant low sulfur fuel resources.

EPA soon realized that. if the sulfur oxide require-

ments in State plans were not changed, primary stand-

ards might not be attained by the statutory deadline.

“ em . .

Searce fuels and pollution control equipment were

needed by sources in areas where those standards were

being exceeded. Thus, EPA began actively encouraging

"7 Text pp. 8-10 supra.

8 37 Fed. Reg. 10843-44 (1972). It should be noted that EPA did

not consider the technical or economic feasibility of compliance

with plan requirements when it approved State plans in May 1972.

See, ¢.g., Buckeye Power, 481 F.2d at 168-69.

-* On August 29, 1973, the Energy Policy Office published pro-

posed regulations to prohibit sources from converting to low

sulfur fuels except where necessary to attain primary standards.

38 Fed. Reg. 23339 (1973). These regulations were promulgated

on November 27, 1973. 38 Fed. Reg. 32577 (1973). When the

Federal Energy Office was created, these regulations were re-pro-

mulgated. 39 Fed. Reg. 15137 (1974).

94

the States to revise their plans to defer compliance with

‘emission controls that were more stringent than re-

quired under section 110(a)(2) of the Act. The fol-

lowing statement appearing in the Augypst 23, 1973,

Federal Register is representative of HPA’s **clean

fuels policy.”

[I]t is apparent that there is not enough low

sulfur coal and stack gas cleaning equipment avyail-

able to meet the regulations in all areas of: all

States in 1975. In recognition ef this, the Admin-

istrator, on December 18, 1972, in a letter to the

governors of the States in the areas where this

fuels deficit exists, recommended that the States

consider deferral of the effective dates of regula-

tions affecting coal-burning sources of sulfur

oxides where such deferral can be made without

affecting attainment of the primary standards by

the date required by the Act. Analysis shows that

if this is done, adequate fuels and ¢ontrol equip-

ment will be available for meeting all regulations

necessary for attainment of the national primary

ambient air quality standards by mid-1975, ...

States are eneouraged again to consider the

alternatives available to them within the frame-

work of the Clean Air Act. Modification of wn-

necessarily restrictive emission regulations, relaxa-

tion of final ecomphance dates for sources which

need not be controlled to meet the primary stand-

ards, and requests for postponements under see-

tion 110(f) are all mechanisms to alleviate the

short-term fuels problem.”

At the time that State ‘‘variance’’ proceedures

achieved critical importance both from the standpoint

of meeting the objectives of the Clean Air Aet and

6938 Fed. Reg. 22736 (1973).

~

29

from the standpoint of our national energy policy, the

Fifth Circuit held that the States were precluded from

using those procedures to adopt proposed revisions to

their plans. Developments since that decision wnder-

line the need for flexibility in the administration of air

quality coutrols and rejection of the Fifth Circuit

holding.

First, it is now clear that fuel resources must be al-

located to reduce the Nation's dependence on imported

oil. Where American coal can be burned instead of

foreign oil, without jeopardy to the public health, air

quality regulations should be capable of ready adjust-

ment to promote the use of domestic chergy resources,

Second, it is now recognized that the availability of

pollution-control equipment is limited. What is avail-

able should be channeled by regulation to those specific

sources or areas Where it is most needed, free of arti- -

ficial requirements for uniform regulation.

Third, the capital-intensive utility industry is cur-

rently faced with a financial crisis: The inability to

‘aise needed capital in a depressed market. To the

extent that capital funds can be raised at all, they

should be spent on pollution control that is aeutely

needed or on construction of generating facilities re-

quired to meet future energy demands.

Confirmation by this Court of the authority of the

individual States to change plan requirements on a

case-by-case basis will help insure that scarce economic

‘and energy resources are used in a manner consistent

with the public interest.

26

CONCLUSION

For the foregoing reasons, the Court should reverse

the decision of the Fifth Circuit.

Respectfully submitted,

Cameron F. MacRae

LeBoevr, Lamp, Leripy & MacRae

One Chase Mauhattan Plaza

New York, New York 10005

Attorney for

Edison Electric Institute

Of Counsel:

Harry H. Vorctr

Henry V. NICKEL

Epwarp L. CoHEN

LeEBoevr, Lamp, Letpy & MacRar

1757 N Street, N. W.

Washington, D. C. 20036