Brief for the United States — Train v. Natural Resources Defense Council, Inc.

Supreme Court brief1975

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Text

INDEX

Opiniou below___..----- 2 2 ee

Jurisdiction ...- 2-2-2 ae. ive geese eee

Question presented __ hemeeaneae

Statute involved... - 2-2 ee

Argument:

Variances from state implementation plans

that do not affect attainment of national

standards within the statutory deadlines

or their maintenance thereafter need not

be treated by EPA as ‘“postponements” of

the requirements of state plans_____- a

A. EPA’s treatment of variances not

affecting attainment of air quality

standards within the prescribed

deadline as not being governed

exclusively by Section 110(f) is

consistent with the language, struc-

ture and legislative history of the

Clean Air Amendments... _- -- -- --

B. EPA’s construction of the Act, on

which the states and persons sub-

ject to the Act have relied, properly

effectuates the legislative purpose

of the Amendments- -___-_-----_--

(I)

564-177 - T4- 1

Page

rnwnNe =

Argument —Continued

C. The contention that Section 110(f)

provides the exclusive means for

* obtaining variances prior to the

deadiine for attaining national

standards has been rejected by

3, Congress and all other courts of

Page

appeals____-.------------------- 32

D. The decision of the court of appeals

rests upon an erroneous analysis of

the language and purpose of the

Clean Air Act___- -.---.---- -- -- 38

I. In rejecting EPA’s construction of

Section 110, the court of appeals’

holding would have adverse conse-

quences not intended by Congress. - 41

Conclusion_-__----------- seed are ane ee 46

CITATIONS

Cases: _

Getty Oil Co. v. Ruckelshaus, 342 TF. Supp.

1006; remanded on other grounds, 467 I. 2d

349, certiorari denied, 409 U.S. 1125. __ _- 36

Griggs v. Duke Power Co., 401 U.S. 424_____- 32

Natural Resources Defense Council, Inc. v. En-

vironmental Protection Agency, 478 ¥. 2d 875_ 13,

33, 34, 35, 36

Natural Resources Defense Council, Inc. v. En-

vironmental Protection Agency,483 F.2d 690_ 13, 36

Natural Resources Defense Counci!, Inc. v.-En-

vironmental Protection Agency, 494 F.2d 519_ 13, 36

Natural Resources Defense Council, Inc. v. En-

vironmental Protection Agency. No. 72-2145,

(C. A. 9), decided November 11, 1974_ __ _-

13,

34-35, 37

Ill

Cases—Continued

Trafficante v. Metropolitan Life Ins. Co., 409 page

US. 205_.-.------- ee 7 32

Udall v. Tallman, 380 U.S. 122-22. _- : 32

United States v. Bishop bee Co., | 423

I’. 2d 469, certiorari denied, 398 US 904- S

Statutes and regulations: _

69 Stat. 322-323....- 6 7

74 Stat. 162... 22 2 8 7

| 77 Stat. 392-401__ __ ees fee oe ae 7

| 79 Stat. 992-996. 7

— 80 Stat. 954-9552 7

D S1 Stat. 485-507... =. a S

Clean Air Amendments of 1970, 84 Stat. 1676,

42 U.S.C. 1857, et seg. 22 29

Section 101(a)(3), 42 U.S.C. 1857(a)(3) - S

Section 109(a)(1), 42 U.S.C. 1857e-4

(a)(De . 29

Section 109(b), 42 u SC. 1857¢- 4(b) aS

Section 110, 42 U.S.C. 1857¢-5__ . 20,35

Section 110(a)(1), 42 U.S.C. 1857¢-5

(a) oe . 3.10

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

(a)(2y o- 2-2-2 2-2. 10, 18, 19, 21, 22, 32

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

(2)(2)(A)_ - 2. 83,10, 18,19

Section 110(2)(2) \(B); 42 U.S.C. 1857¢e-5

(a)(2)(B). ee 10

Section 110(a)(2)(B)-(H), 42 U.S.C.

1857¢—5(a)(2)(B)-(H)_ 2-5 6 8, 19-29

Section 110(a)(3), 42 U.S.C. 1857¢—5

(a)(3).-- 22... 5

10, #2, 21, 24, 26, 27, 28, 34, 35, 38, 42,

44, 45

Section 110(a)(4), 42 U.S.C. 1857¢e—5

(a)(4)-. 2-2 ee ee ee. 27

Sratutesxand Regulations—Continued —

‘Section L10(e), 42 USC, ISSTC-5(C) -_ 10,19

Section 110(e), 42 U.S.C. 1IS57e-5(e)_ 28 -- 10,

19, 20; 22, 28, 40

Section 110(f), 42 U.S.C. 1S57¢e-5(f) _ _ _ _ 4,

5, 10, 12, 13, 15, 16, 17, 19, 21-22, 26, 2s,

29, 30, 33, 34, 36, 37, 38, 39, 40, 41, 42,

43, 44 ,

Section 110(f)(1), 42 U.S.C. e- 5(f)(1)_.-- ii,22

Section 110(f)(2), 42 US.C., P857e-5

(f)(2)__-- 2 8 cedure atwe Dds 22

Section 116, 42 U.S .C. 1857d- 1, 30

Section 118, 42 U.S.C. 1S57f. 62 2 25

Section 303, 42 U.S.C. 1857h-1____ = 20)

Section 807(b)), 42 U.S.C. 1857h-5

(b)(1)- _ 3, 21

Reorganiz: ation Pl an 1 No. 3 of 1970, ‘Sd .

Stat. 2086 (35 Fed. Reg. 15623)___ ___- 9

5 U.S.C. 554. 2 2 ek ee ke 42

Ga. Code Ann. 88-912. .-__ _-___.________.. 344

40 C.F.R. 50.1(8)_-- 0 8 8 8 8 ee 2

40 CLLR. Part 51-222 2 2 8, 27

40 C.P.R. 51.6... 2-22. 2-2-2 ee ee ee 12

40 CLEPLR. S1.1M(g) 0 2 eee eee OT

40 C.V.R. 51.15(d)__-- 2. 2 2 2 ee 14

40°CLF OR. OL 320). oe oe nee een eit s. 12,14,

40 CLPLR. 51.83- 2-2-2 2 2 8 2 28, 42

.40 C.PLR. 52.26.22 2-2 2 2 2 2 -. 14, 36

40 C.F.LR. 52.570(b)__- 2. 2 2 2 8 ee 3

40 C.F.R. 52.572-52.574__. 22 22 oe le 3

40 C.F.R. 52.1131. _ - pee ee eee ee ee ee eee 36

40 C.FLR. 52.2079... 22 ee 36

Miscellaneous:

Comunent, Variance Procedures under the

Clean Airy Act: The Need for Flexibility,

15 Wim. & M.L. Rev. 324 (1973) ____ 35, 41, 43-44

116 Cong. Ree. 42584-42385___- 26

116 Cong. Ree. 32914-32916. __

MiscelHanvous—Continued

36 Fed. Reg.: Daze

6680. ee eee ae

OOS]. — : : _ 31

OOS6 __- 30)

15486. Do 27

22400 - - oo ooo }2

22405 -_ - eee ewe ee aees. _. 12,30

37 led, Reg.:

10859 wie eee wine a een es Lo. 3

238387. - = 45

38 Fed. Reg.:

1SS7S8S-ISSSO__ =|. eee eee 36

22025-22030, 27 286-2 7287 - _...-...-... 28,42

* 27819, 30186_ _._.______ we... 42

34020... 2 ee - 43

39 Fed. Reg.:

16348 __ Sees ee eee ee oe oe eee ee 45

16348-16349. -2 45

308384. 000¢«2~«CF 45

34533-34535 __ _- go ee ee eee 14,36, 45

Hearings, on Implement: tion of the Clean

Air Act Amendments of 1970—Part I (Title ’

I), before’ the Subcommittee on Air and

Water Pollution of the Senate Committee

on Public Works, 92d Cong., 2d Sess ___ 31, 32, 37

I1.R. 17255, 91st Cong., 2d Sess. 23

II. Rep. No. 728, 90th Cong., Ist Sess... .._... 7-8

H. Rep. No. 91-1146, 91st Cong., 2d Sess. ___- 23

If. Conf. Rep. No. 91-1783, 91st Cong., 2d

Sess. _ _- 9, 25

Luneburg, Feder: al-State- Inter: action “uhder

the Clean Air Amendments of 1970, 14

B.C. Ind. & Com. L. Rev. 637 (1973)___ __ __ 28, 44

S. 4358, 91st Cong., 2d Sess._ __ | - . 23, 24,25

S. Rep. No. 91-1196, 91st Cong., 2d Sess. - 23, 25, 35

Gn the Supreme Court of the Bnited States

OcToBER TERM, 1974

_ No. 73-1742

Russet EF. Traixn, AbpMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, AND UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY, PETI-

TIONERS

NatuRAL RESOURCES DEFENSE CoUNCIL, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COERT OF

APPEALS FOR VHE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

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

A, la—52a) is reported at 489 F. 2d 390.

JURISDICTION

The judgment of the court of appeals was entered

on February 8, 1974 (Pet. App. B, 53a-54a). The

petition for a writ of certiorari was filed on May 20,

1974, and was granted on October 15, 1974. The juris-

diction of this Court rests upon 28 U.S.C. 1254(1).

(1)

QUESTION PRESENTED

Whether, under the Clean Air Act, as amended, the

Environmental Protection Agency nist disapprove

provisions of a state implementation plan that author-

ize the state to grant variances from the state plan

during the period prior to the <Act’s deadlines for

attainment of national ambient air quality standards,

where such variances comply with the provisions of

the Act concerning “revisions’’ of plans rather than

those concerning ‘‘postponements’’ of plan require-

ments.

STATUTE INVOLVED

The Clean Air Amendments of 1970, 84 Stat. 1676,

42 U.S.C. 1857, et seq., are set forth in relevant part

in Appendix C to the petition (Pet. App. 55a—64a).

STATEMENT

On April 30, 1971, as required by the Clean Air

Amendments of 1970, 84 Stat. 1679, 42 U.S.C. 1857

e—t(a)(1), the Environmental Protection Agency

(**EPA’’) promulgated nationally-applicable ambient

_ air’ quality standards for specified pollutants. Such

acid are of two general types: ‘‘primary’’ stand-

ards, i.e., those that in EPA’s judgment are “requisite

to protect the publie health’? (42 U.S.C. 1857e-4(b)

(1)), and ‘‘secondary” standards, 1.e., those that in

EPA’s judgment are ‘‘requisite to protect the public

welfare from any known or anticipated adverse ef-

? Although not defined in the Act. “ambient air” means the

portion of the atmosphere, external to buildings, to which the

general public has access. See 40 C.F.R. 50.1(e).

fects associated with the presence of such air pollutant ,

in the ambient ed * 42 U.S.C. 1857¢-4(b) (2).

On January 27, 1972, within the time prescribed by

the Amendments (42 U.S.C. 1857¢-5(a) (1) ), the State

of Georgia submitted to EPA its implementation plan.

40 C.F.R. 52.570(b). In accordance with EPA’s guide-

lines for implementation plans (40 C.F.R. Part 51),

the plan showed how Georgia will attain national

primary and secondary ambient air quality standards

within the statutory deadlines (the former as expedi-

tiously as practicable, but in no ease later than three

years from the date of approval of the plan, and the

latter within a reasonable time), and will maintain

them thereafter, as required by 42 U.S.C. 1857¢-5

(a)(1) and (2)(A)(i)-(ii). On May 31, 1972, EPA

approved Georgia’s plan (with exceptions not here

material). 37 Fed. Reg. 10859; 40 C.F.R. 52.572-

52.574.

Within the time provided by the Aaneudinents (42

U.S.C. 1857h-5(b) (1)), respondent Natural Resources

Defense Council (*NRDC”) and others petitioned

the court of appeals for review of EPA's ap-

proval of the Georgia plan, claiming, inter alia, that

the approval was invalid because a Georgia statute

- included in the plan (Ga. Code Ann. 88-912)’ em-

2 Section 88-912 reads in full:

“The department may grant specific or general classes of

variances from the particular requirements of any rule, regula-

tion or general order to such specific persons or class of persons

or such specific source or general classes of sources of air con-

taminants upon such conditions as it may.deem necessary to pro-

tect the public health and welfare, if it finds that strict com-

pliance with such rule, regulation or general order is inappro-

OA-177- TA-— 2

~~ —

powered the State Department of Public Health to

- grant variances from the plan in a manner contrary

to the requirements of Section 110(f) of the Act, 42

US.C. 1857¢-5(f).

That section permits EPA, in accordance with speci-

fied procedures, to approve postponements of the ap-

plicability of requirements of a plan to a particular

stationary source or class of moving sources for up te

priate because of conditions beyond the control of the person

or classes of persons granted such variances. or because of

special circumstances which would render strict compliance un-

reasonable, unduly burdeasome, or impractical due to special

physical conditions or causes, or because strict compliance would

result in substantial curtailment or closing down of one or more

businesses. plants or operations, or because no alternative facil-

ity or method of handling is yet available. Such variances may

be limited in time. In determining whether or not such vari-

-ances shall be granted, the department shall give consideration

to the protection of the public heaith. safety and general wel-

fare of the public, and weigh the equities involved and the rela-

tive advantages and disadvantages to the resident and the occu-

pation or activity affected. Any person or persons seeking a

variance shall do so by filing a petition therefor with the di-

rector of the department. The director shall promptly investi-

gate such petition and make a recommendation as to the dispo-

sition thereof. If such recommendation is against the granting

of the variance. a hearing shall be held thereon within 15 days

after notice to the petitioner. If the recommendation of the di-

rector is for the granting of a variance, the department. may do

so without a hearing: Provided, howéver, that upon the petition

of any person aggrieved by the granting of a variance, a public

hearing shall be held thereon. variance granted may be re-

voked or modified by the department after a publie hearing

which shall be held after giving at least 15 days pr‘or notice.

Such notice shall be served upon all persons, known to the

department, whe will be subjected 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.” ;

”

oNe Vear Upon appiteation of the governor, The court

of appeals agreed with respondents and rejected

EPACs contention that, during the period prior to they

deadline for attainment of national primary standards

(July 1975 for Georgia’), variances are not neces-

sarily subject to Seetion IO(f) and rather may prop-

erly be treated as “revisions” of the plan, subject te

EPA'S approval under the less formal procedures of

Section T10(a)(3), 42 U.S.C. 1857-562) (3), where

such variances would not interfere with tine ‘ly attain-

ment of the standards.

INTRODUCTION AND SUMMARY O¥ ARGUMENT .

The ultimate issue in this case is whether a request

for a variance‘ from a state’s plan to implement air

quality standards under the Clean Air Amendments

of 1970 during the period prior to the. state's deadline

for the attainment of such standards is subject CX-

clusively to .the provisions of the Act concerning

“postponéements,” as the court ef appeals held. or

Whether EPA has properly construed the Act as per-

Initting it to treat such variances as “revisions” of

plans.

Under the revision procedures, the state is required

to hold a public hearing, EPA ay grant appreval if

the variance would not prevent timely attainment of

‘The three-year period began to run in July 1972, when EPA

approved, after revisions. the portions of Georgia plan that

it hat initially disapproved.

‘We use the term: “variance” generically to cover any post-

ponement. amelioration, conditional permit. or other moditica-

tion of an emission standard, compliance schedule. or other

element of a state’s implementation plan.

national standards, and its action is subject to judi-

cial review. Under the postponement procedures, EPA

itself must hold formal public hearings, it may ap-

prove a postponement (for up to one year) even if it

wouldAnterfere with-timely attainment of standards,

but wnly if other specified conditions are satisfied, and

—4t¢ action is subject to Judicial review.

While the question presented in this case involves

construction of statutory language, that language

should be construed in light of the background of the

Clear Air Amendments and wit an awareness of the

complex structure of the Clean Air Act created by

them—an Act designed to implement important na-

tional policy goals within a context of cooperative

federalism.

1. The role of the federal government in efforts to

control air pollution has grown steadily over the past

two decades through a series of measured steps that

retleet certain inherent dimensions of the problem.

These inaude: its interstate nature, polluted air being

mobile and net confinable within the boundaries of a

state: the advantage, in terms of availability of re-

sources and avoidance of duplication, of having cer-

tain actions taken on the national level; the practical

desirability of leaving both the adaptation of general

standards to particular circumstances and the enforee-

ment of measures adopted to achieve such goals to

state and local governments, Whose personnel are

ordinarily closer to the physical sources of pollution

and those affected by it and by the measures needed

te reduce it: and the desirability, in our federal sys-

tem, of avoiding where possible an extensive federal

law enforcement apparatus.

Thus, in 1955, Congress authorized the Surgeon

-€eneral, under the supervision of the Seeretary of

Health, Education, and Welfare (‘the Secretary”), to

study the problem of air pollution, to provide techni-

cal assistance (e.g., investigations, research, surveys)

to state and local governments trying to abate pollu-

tion, and to make grants-in-aid for ny research, traminge

and demonstration projects. 69 Stat. 322-323. Tn 1960,

Congress directed the Surgeon General to conduct a

study concerning the health hazards resulting from

motor vehicle emissions, 74 Stat. 162.

In the Clean Aiv Act of 1963, 77 Stat. 392-401, Con-

gress authorized the Secretary to expand research con-

corning alr pollution and to work with the states to

develop uniform laws to prevent aad control such

pollution. Although. federal authorities were em-

powered to intervene directly to abate interstate pollu-

tion in limited cireumstatces (77) Stat. 396-399).

the Act explicitly left the primary responsibility in

this field with state and local governments. Congress

amended the 1963 Act in adopting the Motor Vehicle

Air Pollution Control Act of 1965, 79 Stat. 992-996.

Which authorized the Secretary to establish federal

standards to control motor vehicle emissions, and

again In 1966 to increase the Secretary's authority to

make grants to state air pollution control agencies,

80 Stat. 954-955.

Convinced ‘‘that air pollution is a threat to the

health and well being of the sme people CTT.

Rep. No. 728, Oth Cong., Ist Sess., p. 3), Coneress

enacted a still more comprehensive statute, the Air

Quality Act of 1967. 81 Stat. 485-507. This law re-

iterated the congressional premise of the Clean Air

Act “that the prevention and control of air pollution

at its souree is the primary responsibility of States

and local governments * * #77 ST Stat. 485, 42 U.S.C.

I857(a) (3). Accordingly, while the Secretary was re-

quired to designate air quality control regions and

to issue criteria of air quality required to protect

the publie health and welfare, the states were given

the responsibility to adopt ambient air quality stand-

ards for those regions, as well as to adopt implemen-

tation plang to maintain and enforce their standards.

State standards and plans both had to be approved

by the Secretary, who, if a state failed to comply,

could promulgate federal.standards and plans for that

state. Where action reasonably calculated to secure

abatement of violations of the air quality standards

Was net taken, the Secretary could, if the health or

welfare of persons in another state (or, in some cir-

clinstances, another country) was endangered, re-

quest the Attorney General te bring suit: to abate

the pollution source, SL Stat 490-497.

2. Dissatisfied with the rate of progress under the

1967 Act, and responding to heightened concern about

* By 1970, only ten state standards had been approved, and.

while state implementation plans had been submitted to the

Secretary. none had vet been approved. As a result, there had

been no federal enforcement under the 1967 Act and only one

epforcement action litigated since 1963. 116 Cong. Ree. 32914-

B2O162 see Vasted Ntates ve Bishop Procéssing Co. 425 Fy 2d

1 CC NL Eye eertiorar? denied. 598 TLS. 904.

air pollution and other environmental problems, Con-

~ vress substantially revised the Clean wir Act in enact-

ine the Clean Air Amendments of 1970. 84 Stat. 1676.

A fundamental feature of the Amendments was the

adeption of fived deadlines for the accomplishment

of specified statutory objectives concerning air quality

throughout the country, altheugh the states were ac-

corded substantial latitude in devising strategies’ for

meeting the statutory goals in accordance with a time-

table established by the Amendments, subject to euide-

lines adopted and implemented by 2 DAL

More specifically, the pertinent features of the

Amendments are as follows. First. based upon air

quality criteria already adopted pursuant to the 1967

- Net oor subsequently adopted, EPA was ordered,

Within 30 days of the enactment of the Amendments

on December 31, 1970, to publish proposed regulations

preseribing national‘ pricsary and “secondary” am-

bient air quality standards (seep. 2, supra); after

90 days for comments, EPA was then obliged

to promulgate such standards. 42 U.S.C. 1857¢-+(a)

(1). Second, after EPCS promulgation of standards,

each state was required, after public hearings, to

adopt and submit to EPA a plan for the tmplementa-

(lon, maintenance and enforcement of these national

* While a Touse-Senate conference committee was resolving

differences between bills passed by the respective houses, the

President created EPA and vested in it the powers and respon-

sibilities of the Secretary under the Clean Air Act. and other

legislation. Reorganization Plan No. 3 of L9TO, (35 Fed. Ree.

[oHu5). Sb Stat. ose. Accordingly. the amendments vested en-

forcement anthority in the Administrator of EPA. See TI. Conf.

Ren, No Ob -17s3. 91st Cong. 2d Sess. p. de.

standards. 42 U.S.C. 1857¢-5(a) (1). Third, EPA was

required, within four months of submission, either to

approve or disapprove each state implementation

plan. 42 U.S.C. 1857¢e-5 (a) (2).

The Amendments list eight conditions that EPA

must find satisfied before it may approve a plan. One

requirement is that the state’s implementation plan

provide for attaining the primary national ambient

air quality standard ‘tas expeditiously as practicable

hut * * * in no ease later than three vears from the

date of approval of such plan,” unless EPA, upon

application of the Governor made when the plan was

submitted, extends this time for not more than two

vears (42. U.S.C. 1857e-5(a)(2)(A) (1) and (e)):

secondary standards must be attained within a

reasonable” time. 42. U.S.C. 1857¢-5(a) (2) (A) (11).

A further requirement is that the pian include

“emission limitations, schedules, and timetables for

compliance with such limitations, and such other

measures as may be necessary to insure attainment

and maintenanee of such primary or secondary

standard * * *.° 42 U.S.C. 1857e—5(a) (2) (3B).

In addition, Section ¥10(a) (3) authorizes EPA to

’

approve “revisions” in state implementation plans so

long as they conform to the requirements of the Act

for the plans themselves. 42 U.S.C. 1857¢—-5(a) (3).

Beyond the authority to approve revisions, Section

110(f) empowered EVA under specified circumstances

7 Tf a state declines to submit a plan or to revise its plan to

the extent that it has been disapproved, EPA is authorized to

prepare and promulgate such a plan or portion thereof. 42

U.S.C. 1S) Te-5(c).

to “postpone” any requirement of an implementation

plan “Eplrior to the date 6n which any stationary

source or class of moving sources is required to cofft-

ply * * *" 42 US.C. 1857-9 (1) (1). Revisions and

postponements both require EPA’s anproval, which

is subject to Judicial review (42 U.S.C. 1857-5 (f) (2)

(1), l8oTh-5(b)(1)), and both must be preceded by

the opportunity for a public hearing, to be conducted

by the state in the case of a revision and by EPA in

the case of a postponement. The Act specifically re-

ajuires that the latter type of determination be made

on the record, based on a fair evaluation of the entire

record at the héaring, and-that it include detailed find-

ines and conchwsions, 42 U.S.C. 1857¢—-5 (1) (2) (A).

3. In substanfgglly revising the approach to be taken

by the federal goWrnment and the states in eombat-

ing together the problem of air pollution, the Clean

Air Amendments of 1970 thus imposed on newly-cre-

ated EPA and the states, under a complex statutory

scheme, a variety of substantial obligations to be met

Within specified deadlines. One of the many issues

EPA was required to resolve at the outset concerned

the procedures to be followed if a state chose to make

sone or all of the general requirements of its imple-

mentation plan more stringent than the standards

required, or to make them effective prior to the statu-

tory deadline for A, jc. anbient air

quality standards, but also desiréd to authorize vari-

ances that would not interfere with the state’s timely

attainment of those standards. EPA concluded thet

such revisions could be treated as “revisions”? of plans

564-177—74——3

. 12

under Section 110(a)(3) of the Aet, while variances

that would aifect attainment or maintenance of na-

tional standards by or alter the deadline would be

treated as “postponements” under Section 110(f).

Accordingly, when EPA promulgated guidelines for

the preparation of state implementation plans in 1971,

it took the position, with the concurrence of NRC

(seep. BI, tafe), that Seetion WOCh) of the Net did

hot apply exclusively to all exceptions or variances,

but only to these that would affect the ability of a state

to attain within the statutory tunetable, and thereafter

maintain, the national standards: variances that would

hot have such an effect were to be treated as revisions

under Section 110¢a)¢3). 56 Fed. Ree. 2? EO, 22105:

40 CLFLR. 51.6, S1.52(f).

Relying on EPA‘S authoritative interpretation of

the Act concerning variances, Georgia and other

states adopted implementation plans effective im-

mediately or weH before the deadlines for attainment

of national standards, with the intention of eranting

Variances or exceptions to specific sources’ that could

not feasibly be brought into immediate compliance.

These states proposed to defer applicability only

Where necessary, by placing, excepted: sources on ex-

peditious but reasonable complance schedules which

would provide for attainment of the national stand-

ards by the mandatory comphance date, which for

Georgia is July 1975 for both primary and secondary

standards. Other states, such as Florida, made their

requirements effective at the latest possible date al-

lowed by the Clean Ain Act—generally mid-1975.

“wv

13 .

Such states would therefore nermally have ne need to

2rant Variances prior to the Inidatory compliance

dates,

4. In review proceedings initiated by respondent

NRDC, the Courts of Appeals for the First * aid

Kiehth” Circuits Cater Jomned by the Second ana

Ninth)" held that EPA had properly construed NS

tion 110 as authorizing dt to treat some variaices

other than as postponements wider Section ELOCi),

at least tisefar as the variance Peatained to the period

prior to the deadline for attainment of the national

standards. Most of these courts also held. however,

that a variance pertainine to the Post-attaiiment

period was, with limited exce ptloms. subject te the pro-

eedives pertaining to postponements, even if the par

ticular variance did not threaten the Sfate’s ability: to

attamand maintain national standards.

Accepting the distinetion drawn by the courts be-

tween pre-deadline and post-deadline variances asa

reasonable interpretation of the Net. alh Mt jess de-

sirable than its own Interpretation, EPA arended

its guidelines to reflect this distinetion and to confor

With the rulines in these eases conceming the prre-

‘ Vautupel Te¢ NOUPOCES TD), iG UNC Cou wee. Lie. Ln loin "i UGE te /

Protection Na wey das BL ed STS CLA 1),

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Piclectlon lag Hey ASS FL 2d 600 (CLA, S).

” Valuval Leesomres x Deve nse ‘ouneil, Tne, \ 5 hu “ey Onsite nial

Protection . bey ney IME BL 2d 38 CLAS ).

NMotupal Lee NOMPOCOS Dek wee ¢ "OWS hie i: Te, . ae per iD rpes Wie al

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atiaiiment period, 59) Fed. Reg. 34533-34535; 40

CER. 51.112), 51.15(d), 5182(1).”

Do. In the present case the court of appeals dis-

agreed with the other circuits and coneluded (Pet.

App. 25a-27a) :

We are unable to agree that the statute en-

Visions granting the states the kind of ‘‘flexi-

bility’? during the ‘‘pre-attainment period”

which provisions like Georgia’s section 88-912

would afford. The parts of the statute on which

the First Circuit relied were the provision of

section = 1857¢e-5(a)(2)(A)(Q) that primary

standards had to be met, not immediately, but

only “tas expeditiously as practicable’, but in

no case later than three vears from the adop-

tion of the statg plan, and the provision of

section 1S857ce-5(e) for a possible two-vear ex-

tension of the deadline in sharply restricted

circumstances. The First Cireuit) said that

“{t]he provision for a three-year grace period,

followed by the possibility of a further two-

year extension, indicates that Congress did not

expect immediate achievement of standards.”

478 F.2d at 887 (emphasis supphed).

This statement. however, contains a ereial

ambiecuity, and it supports the First Circuit's

holding only if that ambiguity is overlooked. It

Is of course true that the provision of a three-

vear grace period, and of the possibility, how-

ever Timited, of an extension, do mean that Con-

eress did not expect namediate achtevement of

At the same time, EPA disapproved pro tanto all provi-

sions of plans. ineluding the Georgian plan, that permitted vari-

anees to defer compliance bevond the dendlines for attelument

of national standards. 390 Ped Rea ears: bo CUE LR, 32.26,

ambient standards. But it does not follow that

Congress did not contemplate that comission

standards would net have to be met “imme-

diately’ as their scheduled dates—set by the

Implementation plan—arrived. We think that

the provisions of section 185 7¢--5(a) (2) (A) (1)

anid seetion 1857¢—5(¢) do not provide any sup-

port for the latter conclusion. Nor do we find

any support for that conclusion anywhere in

the statute. Instead we find that the statute as

a whole supports the general view of its overall

strategy we articulated above: that the plan of

the statute was to secure ambitions commit-

nents at the planning stage. and then, by mak-

Ing it difficult to depart from those conmit-

ents, to assure that departures would be made

only in eases of real need. That view precludes

the conclasion that-Coneress intended the states

to have the kind of “Hesibility’ state variance

plans would give them.

Thus we hold that it was ineonsistent with

the statute for Georgia to adopt its own vari-

ance procedures, and that the Administrator

exceeded his authority in approving section S&—

912. Accordingly, we direct the Administrator

to publish forthwith his disapproval of section

SS-912.

6. Tt is our submission that the court of appeals’

decision rests Upon ao misreading of the statutory

language and its history, and a oiisapprehension of

the structure and purposes of the Clenn Air Act. In

providing EPA in Section TOCh) with authority. te

postpone deadlines in aceordance with burdensome aid

relatively stringent statutory requirements, Congress

Was plainty concerned with providing a limited means

for dealing with sources unable to comply with the

requirements of state plans by the deadlines for at-

taimment of national standards. That, of course, does

hot mean that Section 110(f) should be construed as

providing the only tacans for relief from any require-

Inent of a state plan at any time, even if the general

requirement had been made more stringent, or effec-

tive sooner, than was necded to attain such standards,

To the contrary, such a reading, if adopted by EPA at

the outset. wonld very likely have resulted overall in

less ambitious requirements and commitments than

any states adopted or required,

The principal conclusion of the court of appeals that,

as contended by NRDC, Section 110(f) provides the

exclusive means for obtaining variances from require-

ments of a state plan prior to the deadline for attain-

ment, has now been rejected by the other four courts

of appeals that have considered the question, Those

courts have recognized the need and authority under

the Act for a measure of flexibility not afforded by

the postponement. procedures of Section LLO(f), par-

ticularly in the pre-attainment period. Indeed, all of

the other sourts of appeals have, albeit to differing

devrees, acknowledged some variance authority apart

from Section 1lO0(f) m= the post-attaimment period.

7. If sustained, the decision below would have

severe adverse consequences for EPA in its efforts to

administer and enforce effectively its manifold: statu-

tory responsibilities. One possibility is that HPA

would itself be required to hold formal public hear-

Ings concerning many of the thousands of variances

already granted by -states—after public hearings held

by the state—and approved by EPA. In addition, in-

validation of HPA‘s 1971 interpretation of the Act at

this time would be seriously unfair to the states and

other persons subject to the Act who have relied in

good faith on that interpretation—once endorsed by

NRDC itself (see p. 31, tufra) in formulating and

responding to control strategies.

ARGUMENT

VARIANCES FROM STATE IMPLEMENTATION PLANS THAT DO

NOT AFFECT ATTAINMENT OF NATIONAL STANDARDS

WITHIN THE STATUTORY DEADLINES OR THEIR MAINTE-

NANCE THEREAFTER NEED NOT BE TREATED BY EPA AS

“POSTPONEMENTS’? OF THE REQUIREMENTS OF STATE

PLANS.

The decision of the court ef appeals in this case set

aside a reasonable construction of the Clean Air

Amendments made by the agency responsible for

iaplementing the Amendments and sustained by all

other courts of appeals that have considered the ques-

tion, v7z., that the provisions of Section 110 (f) of the

Act concerning postponements are not the sole means

by which a state may grant a variance from the re-

quirements of its implementation plan. That decision

is not compelled or supported by the language of the

Amendments or their legislative history, or by the

overall structure and purpose of the Clean Air. Act.

Moreover, the court of appeals’ construction of the

Amendments would have unwarranted adverse con-

RAD RAE SRS a |

sequences for EPA, the states, and the persons subject

to the Act.

A. EPA'S TREATMENT OF VARIANCES NOT aveerfixd ATTAINMENT OF

AIR: QUALITY STANDARDS WITHIN THE PRESCRIBED DEADLINE A>

Nov BEING GOVERNED EXCLUSIVELY BY SECTION 110(F) Is CON-

SISTENT WITH THE LANGUAGE, STRUCTURE AND LEGISLATIVE LLs-

TORY OF TILE CLEAN AIR AMENDMENTS

Under the statutory scheme created by the Clean

Air Amendments, within nine months after EPA's

promulgation of primary and secondary national am-

bient air quality standards (/.c., by January 31, 1972),

each state, after holding public hearings, was required

to submit to EPA a plan providing for the jmplemen-

tation, maintenance, and enforcement of such stand-

ards in the state. EPA was required by Section 110

(a)(2) to approve each state plan within four months

of the deadline for submission if it had been adopted

after public hearings and if it satisfied eight general

conditions. The first condition was that the plan pro-

vide for the attainment of the national primary am-

bient air quality standards it was implementing ‘as

expeditiously as practicable but * * * in no ease later

than three years from the date of approval of such

plan,” and for the attainment of secondary standards

within “a reasonable.time.” 42 U.S.C. 1857¢-5(a) (2)

(A) (i) and (ii). Other conditions require that the plan

include specified categories of control measures (6.4,

emissions limitations, compliance schedules) and pro-

cedures (e.y., provisions for intergovernnental co-

operation; reports on emissions; revisions to take ac-

count of changes in the national standards). 42 U.S.C.

1857-5 (a) (2)(1B)-( HY."

Section 110(a) (2) prov ides that EPA shall not ayprnse a

plan unless:

“(A)(i) in the case of a plan implementing a national pri-

nary ambient air quality. standard, it provides for the attain-

ment of such primary standard as expeditiously as practicable

but (subject to subsection Ce) of thi< section) in no ease later

than three years from the date of approval of such plan (or

any revision thereof to take account of a revised primary stand. |

ardi: and (i) in the ease of a plan i:oplementing a national

secondary ambient air quality. standard. it specifies a reason-

able time at which suel secondary standard will be attained:

“(DB) it includes emission limitations, schedules, and timetables

for compliance with such limitations. and such other measures

wsommay be necessary to insure attainment and maintenance of

sich, primary or secondary standard. including. but not limited

to. Jand-use and transportation controls:

2(C) it ineludes provision for establishment and operation of

appropriate devices, methods. systems. and procedures Necessary

fo (1) monitor, compile, and analyze data on ambient. air

quality and. (ii) upon request. make such data available te the

Administrator:

“(D) it ineludes-a procedure. meeting the requirements of

paragraph (4). for review (prior to constriction or modifiea-

tion) of the location of new sources to which a standard of

performance will apply: .

“(E) it contains adequate provisions for intergovernmental co-

operation, including measures necessary to insure that emissions

of air pollutants from sources located in any air quality control

region will not interfere with the attainment or maintenance of

such primary or secondary standard in ANY, por ion of such

region outside of such State or in any other afr quality control

region:

“(F) it provides (i) necessary assurances that the State will

hive adequate personnel. funding, and cuithority to carry out

stich implementation plan, (ii) requirenients for installation of

equipment by owners er operators of stationsry sources to moni-

tor emissions from such sources. Git) for periodic reports on

the nature and amounts cof such emissions: (iv) that sneh re-

——

Ca Ren RETR CERRY

The Amendments provided three means to alter

deadlines imposed by Section 110 or a plan promul-

gated thereunder. If it appeared at the outset that cer-

tain sources would not be able te comply with the re-

quirements of a plan to meet a primary standard

Within the three-vear period, the Governor of a state

could request when submitting an implementation

plan, and EPA was authorized to grant, an extension

of the statutory deadline for up to two vears for such

sources, In accordance with the requirements of See-

tion 110(e)."" Georgia sought no such extension, aud

that provision is not in issue in this case.

ports shall be correlated by the State agency with any enis-

sion Tinuit.tions or standards established pursuant to this chap-

tery whieh reports shall be available at) reasonable times for

public inspection: and (vy) for authority comparable to that

in section 303 [42 U.s.C. 1857h-1], and adequate contingency plans

to tmplement such authority:

“(G) it provides, to the extent necessary and practicable, for

periodic Tnspection and testing of moter vehicles to enforce

compliance with applicable emission standarls: and

“(IT) it provides for revision, after public hearings, of: such

plan (1) from time to time as may be necessary to take ae-

count of revisions of such national primary or secondary ain-

lient air quality standard or the availability of improved or

more expeditious methods of achieving such primary or see-

ondary standard: or (ii) whenever the Administrator finds

on the basis of information available to him that the plan is

substantially inadequate to achieve the national ambient air

quality primary or secondary standard which it implements.”

Section 110(e) authorizes EPA to approve an extension if

it determines that (42 U.S.C. IsdTe-5(e) ):

x % , = ®

(A) one or more emission sources (or classes of moving

sources) are unable to comply with the requirements of

suelo plan which implement such primary standard because

the necessary technology or other alternatives are not

Second, the state is authorized to make ‘* revisions”

in compliance schedules or any other aspect of an

approved implementation plan, and, under Section

110(a)(3), EPA is authorized to approve such revi-

sions if they have been adopted by the state after

public hearings and they meet the requirements of

Section 110(a)(2) for implementation plans them-

selves, Including, of course, the requirement of attain-

ing national standards within the pertinent deadlines.

$2-1SCL 1857-5 (a) (3). EPA's approval of an im-

plementation plan is explicitly made subject to judi-

clal review in a court of appeals by a provision (42

U.S.C. 1857h-5 (0b) (1) ) whieh HPA regards as equally

applicable to its approval of revisions of plans.

Third, prior to the date on which any stationary

souree or class of moving souree is required to comply

with a requirement of an implementation plan, the

Governor may apply for, and EPA may grant, a

postponement’? of such deadline under Section 110

available or will not be available soon enoue') to) permit

compliance within such three-year period, and

(B) The State has considered and applied as a part of

its plan reasonably available alternative means of attaining

such primary mantiand and has justifiably concluded that

attainment of such primary standard within the three years

cannot be achieved fand]

(2) ** * the State plan provices for—

(.A) application of the requirements of the plan which

implement such primary standard to all emission sources

in such region other than the sources (or classes) described

in paragraph (1)(.A) within the three-year period, and

(B) such interim measures of control of the sources

(or classes) described in paragraph (1)(.A) as the Ad-

ministrator determines to be reasonable under the! cireum-

stances, (

as 24

(f), 42 U.S.C. bsd57e-5¢ 6). While the Aet does not

require that the state afford an opportunity for a

public hearing before requesting a postponement, as

it must with a revision of a plan, Section 110(f) does

require that EPA itself hold a formal public hearing,

aad that its decision be based on the record of that

hedrme and be accompanied by detailed findings

and conelusions. 42 U.S.C. bs8o7e—5 (fF) (2) CA). More-

over, although the decision to grant a postponement,

unlike a revision, is not subject to the three-year dead-

line and other requirements of Section 110(a) (2)

pertaining to implementation plans, postponements

similar to those

are subject to several conditions

pertaining to requests for extension of the three-vear

deadline under Section 110Ce) (see pp. 20-21. supra,

ne T4).-and a postponement may be eranted “for net

more than one vear.” 42 U.S.C. 1857¢—-5( 6) (1). The

decision to grant a postponement is also subject to

judicial review ina court of appeals. 42 U.S.C. 1857¢—-

o(f)(2) CB).

"Under 42 U.s.C. bsote-5(f) (1). EPA is required to ap-

prove a postponement tf it determines that :

(A) wood faith efforts have been made to compiv with

such requirement before such date. (B) such source (or

class) is unable to comply with such requirement: because

the necessary technology or other alternative methods of

control are not available or have not been availalle for a

sufficient: period of time. (C) any available alternative op-

erating procedures and interim control measures have re-

dneed or will reduce the impact of such: souree on public

health, and (D) the continued operation. of sueh sonree is

essential to national security or to the publie health or

ook dk

welfare”

The legislative history of the Clean Air Amend-

ments provides limited but useful enidance ia apply-

Ing the pertinent provisions of this complex lee@isiation

t’ the present issue. Briefly, the Senate had passecd a

bill far more rigorous than the bill earlier passed by

the House, and the conference committee produced in

the waning days of the Gist Congress a compromise bil

that differed in many substantial respects from either

the Senate or House bill, while giving only a rela-

tively trumeated explanation of the new Dill.

The House-passed bill (H.R. 17255, 91st Cone., 2d

Sess.: AL Rep. No. 91-1146, 91st Cong.. 2d Sess.) ad-

hered rather closcly to the then-existine provisions of

the Clean Air Act as amended by the Air Quality Act

of 1967 (see p, 8, supra). Most. signitieauth, the

bill did not establish a fixed deadline for attaining na-

tional ambient air quality standards promulgated by

the Secretary,” and so had no pertiner provisions for

extensions, revisions or postponements \of deadlines.”

Section 110 of the Senate bill (S. 43598, 91st Cone..

.2d Sess; S. Rep. No. 91-1196, 91st Cone. 2d Sess. ),

passed by the Senate as an amendment to the House

bill, provided for the promulgation within 30 aays of

national ambient air quality “standards” concerning

"EPA had not vet been created (see p. 9% supra 6),

7Under the House bill. the Secretary was required to issue

prope national ambient air quality standards within 30 d: ays

and to promulgate such siandards within a “reasonable time”

after receiving comments on the proposals, States were required

to submit implementation plans within 240 days of promuten-

tion of the standards, but. the plan need only have asstired

achievement of the standards “within 2 reasonable time.

health of persons and * goals” concerning public health

and welfare (corresponding generally to primary and

secondary standards under the final amendments).

Under Section 111 of the Senate bill, each state was

required within nine months thereafter to submit an

implementation plan, which the Secretary was required

to approve within four months if the plan satisfied ten

specified conditions, Including a requirement that. it

provide for the attainment of national standards

Within three vears (there being no requirement to at-

tempt to attain such standards sooner if practicable).

The bill did not provide for extension of the three-

vear deadline for attaining national ‘*standards,”

uthough it did authorize the Secretary, where he de-

termined it to be necessary, to extend the deadline for

submission of a plan to implement national * goals” for

up to eighteen months. The bill contained no counter-

part to Section 110(a)(3) authorizing EPA to ap-

prove revisions In approved plans.”

“Section 111(1) of the Senate bill, however, did pro-

vide that no later than one vear before the deadline

for attainment of a national standard the Governor

of a state could petition a three-judge district court

for relief from the expiration of the deadline as to a

region or persons, and the court would be authorized

to grant such relief, for up to one year, only if speci-

fied conditions were satisfied, which conditions were

similar to those now contained in Section 110(f) (see

Section T11(a)(2)(1) of the bill contained limited authore-

itv for revisions to take account of changes in the standards or

goals promulgated by the Secretary or of changes in the avail-

ability of methods for attaining them.

p. 22, Gufra, ne 15). See also S. Rep. No. 91-1196,

supra, at pp. 14-15.

The conference report (HE. Conf. Rep. No. 91-1783,

91st Cong., 2d Sess.), after summarizing the respective

provisions of tae House bill and the Senate amend-

ment thereto, stated (id. at 45):

The conference substitute follows the Senate

amendment im establishing deadlines for imple-

menting primary ambient air quality standards

but leaves the States free to establish a reason-

able time period within which) secondary am-

bient air quality standards will be implemented.

The conference substitute modifies the Senate

» amendment in that it allows the Administrator

to grant extensions for good causes shown upon

application by the Governors.

“The court was authorized to grant a postponement only

after (1) determining that such a relief is essential to the

public interest and the general welfare of the persons in the

region affected, and (2) finding

(A) that substantial efforts have been made to protect

the health of persons in such region: and

(13) that means to control emissions causing or con-

tributing to such failure are not available or have not been

avilable for a suflicient period to achieve compliance prior

to the expiration of the period to attain an applicable

standard: or

standard is ‘caused by emissions from ‘a Federal facility

for which the President has granted an exetaption pur-

suant to section 11S of this Act.

Section 118 of the bill, like Section 118 of the Act. 42 U.S.C.

ISoTf. authorized the President to exempt Federal properties

from compliance with certain requirements of the Act if he

determinea it “to be in the paramount interest of the United

States to do so.”

To this brief explanation, Semitor Muskie, the pri-

mary author of the Senate bill, added the following

comments Ina Summary of the Provisions of Coufer-

ence Agreement on the Clean Air Amendments of

1970 (116 Cong. Res. 42384-42385; enphasis sup-

. phed):

If, at the time of plan approval, it appears

Impossible to bring specific sc iurces ite com-

phance @ithin three vears, the Governor of the

‘tate may request an extension of the deadline

“up to two vears. The Administrator must he

satisfied that alternate means of achieving the

standard have been considered (inehiding: clos-

ing down the source in question), that all rea-

sonable interim: measures will be applied. and

that the Stete is justified m seeking the exten-

slon.

A Governor may also apply for a postpone-

ment of the deadline if, when the deadline ayp-

proaches, it 1s impossible for a source to meet a

requirement under an implementation plan,

interim control measures have reduced (or will

reduce) the adverse health effects of the seurec.

and the continued operation of the sowuree is

essential to national security. or the Public

health or welfare of that State. Such postpone-

ment is subject to judicial review. wie

Neither the conference report nor Senator Muskie’s

Summary discussed the addition of Section HOC 3

Tasstum, the language of the Amendments and their

listory stronely suggest that Section T1O(f) was net

intended te be the exelusive means of obtaining

Variances from oa requirement oof ao state plan

where the variance woud not affect timely attainment

or naintenance of national ambieat ar quelity stand-

ards. Rather, Section T10¢f) was aimed at) post-

[> hd

al‘

ponements that would affect a state's attainment of

national standards within the prescribed deadlines ;

lesser variances, Hike other revisions of plans, could be

approved by EPA) pursuant to Section 110(a) (3).

B. EPA'S CONSTRUCTION OF THE ACT. ON WHICHL THE STATES AND

PERSONS SUBJECT TO THE ACT HAVE RELIED, PROPERLY BEFECT-

UATES THE LEGISLATIVE PURPOSE OF THE AMENDMENTS,

The Clean Air Amendments Imposed upon newly-

created EPA an ambitious legislative goal, a variety

of substantial legal and technical obligations, and an

unprecedented series of deadlines to meet. in earrving

out its statutory mandate under this comprehensive

and complex legislation. While it was completing the

first phase—promulgation of national air quality

standards on April 30. 197I—EPA was also Working

towards the next stage—submission of state Imple-

mentation plans. To assist the states in. deter

mining what it > would regard as_ satisfving the

requirements of Section 110(a) (2). in the spirit of

cooperative federalism on whieh the Act is still based

(42 U.S.C. 1857(a) (3) and (4)), EPA on April %

1974, published proposed enidelines for the prepara-

tion, adoption and submission of such plans. 36 Fed.

Rex 6680. After receiving connments by omumerous

orgenizations, including respondent NRDC,) EPA

issued final euidelines on August 14, 1971. 36) Fed.

Reg. W485; 40 CPLR. Part 51.

Qne of the many questions of statutory Interpreta-

tion to be resolved during the period in which the

Wiuplenentation plans had to be prepared, subinitted

and approved concerned the scope and relationship of

EPA‘’s authority to approve “revisions * of plans

under Section 110(€a) (3) and “post ponements” ander

Section 110(f), particularly as they related to compli-

ance With control measures made effective prior to the

deadline for attainment of national standards.

In hight of the legislative Instory of Section LLOCE),

which indicated that it was aimed primarily at. re-

quests for relief arising after a plan was subniitted

that world affect attaimment of the national standards

vithin the three-vear deadlines’ EPA conciuded that

Section LOC’) had net been intended by Congress as

the exclusive means of relief from requirements of

plans when the compliance problems involved had not

been accommodated by an extension of the deadline

pursuant to Section 110¢e) and would not prejudice

the state’s timely attainment of the standards. 'This

conclusion is supported by several pragmatic consider-

ations.

First, since Section 110(f) requires that) fermal

hearings be held by EPA (ef. o8 Fed. Reg. 22025-

22030, 27286-27287; 40 CLPAR. 51.55), in addition to

any hearings held by the state, an overly-broad appli-

cation of the postponement procedure could result im

an enormous burden upon EPA, with consequent de-

lays and diversion of resources needed for other vital

“In the original Senate bill the postponement provision

esplicithy applied only to the statutory deadline for attainment

of national standards (see p. 2b svpror), and the comments in

the conference report and Senator Muskie’s explanation of the

conference bill do not snegest a substantially broader focus (see

pp. POUE. spa), See Laneburg, Fedoral-Ntaty Lite paetion wader

the Chen Nit inindine nts op L960. VA B.C. Ind. & Com. L.

Rev. 657, 646 (1975). .

aspects of EPA‘s work under the Act. Thsofar as

requests for relief were subject to the “revision” re-

quirements, however, the burde:n of conducting pub-

he hearings was diffused among the affected states.

In addition, if a state were authorized to erant

variances from the requirements of its plan prior te

the statutory deadline only by resort to the post pore-

nent procedures of Section 110(f), it mieht well be

Inclined to deter the effective dates of its control yeos-

ures taitil the latest feasible date consistent with ot-

tainment of the standards within the statutory dead-

line, rather than to make some or all contro! measures

effective soon in the expectation that needed variances

could be granted during the period prior to the dead-

line, Such a decision by a state to defer deadlines

mught refleet apprehension that the postponement pro-

cedures would be too slow and stringent. to provide

adequate relief during the preattainment period, as

wellas the belief that a postponement could be granted

only for one year™ and so could not adequately pro-

tect a source subject to a requirement made effective

“While the issue is not presented in this case. a question

CXists as to whether Section 110( f) permits only one post pone-

ment. since the Act does not explicitly authorize or prohibit

suceessive postponements. The provision of the Senate bill on

Which Section 110(f) was largely based did explicitly permit

multiple postponements of the deadline for attainment of a

standard, but the omission of this seemingly signifiernt. lan-

fudge was not commented on in the conference report: o&\the

e\planatory staterent submitted hy Senator Muskie (see pp. 20

7. Singh amy,

at a date earlier than one year before the statutory

deadline.”

Spuilariy, if Section 110(f) were the only means

for obtaining variances from any requirement of a

> ¥ .

state plan, the states might be deterred from adoprt-

wg contro] strategies more stringent than those needed

merely to attain and maintain national standards,

which Section 116 of the Act specifically permits them

to do. 42 U.S.C. 1857d-1.

Accordingly, in light of the statutory mandate thac

the national standards should be attained “as expedi-

tiously as practicable’’ within the three-year deadline,

I}PA adopted a construction of the Amendments that

reasonably led towards that goal. Thus, EPA’s pro-

posed and final guidelines provided that a state’s de-

termination to defer the applicability of any portion

of its control strategy in its plan to a source would be

subject to the requirements for a postponement if the

“deferral will prevent attainment or maintenance of a

national standard’? within the prescribed time (36

Fed. Reg. 6086, 22405; 40 CER. 51,32(f)), although

“? For example, Georgia and other states (see, e.g., Pet. 6)

made many requirements of their plans effective immediately in

1972, subject to relief under stringent variance procedures. This

way most sources were subjected to controls long before the

i975 deadline, even though, as was recognized at the outset,

some might require variances for most or all of the three-year

period. A one-year postponement would not always help such a

source, even if available, as the source might then be in viola-

tion for the balance of the three-year period, This problem

would have been avoided if the state had deferred the effective

date of all requirements under the plan until the attainment

deadline (as Florida and others have done), thereby in effect

hasing overall controls on the lowest common denominator.

such a determination would be treated as a “revi-

sion” of the plan if it would not have that effect. See

36 Fed. Reg. 6681, 22400; 40 C.F.R. 51.6.

Neither respondent NRDC nor anyone else objected

to this provision. Indeed, at subsequent congressional

hearings concerning EPA’s implementation of the

Clean Air Amendments, held before EPA had ap-

proved the state plans, NRDC stated that Section

110(f) applied to “any variance which would prevent

attainment * * * of a national standard * * *” and that

the EPA guideline “correctly provides that variances

Which do not threaten attainment of a national stand-

ard are to be considered revisions of the plan * * *,”

Hearings, on Implementation of the Clean Air Act

Amendments of 1970—Part J (Title I), before the

Subcommittee on Air and Water Pollution of the

“Senate Committee on Public Works, 92d Cong., 2d

Sess., ser. no. 92-H31, p. 45 and u.51 (statement of

Richard E. Ayres).

On the basis of EPA's then-unchallenged guidelines,

Georgia and other states submitted implementation

plans containing early effective dates and limited pro-

vision for variances. Such plans were approved by

EPA in this regard—in many instances without chal-

lenge—and commitments and investments haye heen

made by various sourees in such States, and the states

themselves, in reliance upon EPA’s interpretation of

the Act as permitting variances during the pre-attain-

ment period subject to the procedures for “revisions”

of plans.

SIE RE Aye ae

ot Te or

ree

Where, as here, EPA’s interpretation of the **un-

tried and new” provisions of the Amendments it was

responsible for implementing **is not unreasonable,”

the language of the statute bears I PA‘s construction,

. that interpretation has “been a matter of public ree-

Nord;”” and there has been action by others, ‘tat very

ereat expense, in reliance Upon the * * * interpreta-

tion,” it should be shown ‘great on rence’? and sus-

tained. Udall v. Tallman, 880 U.S. . 16-18; see, Cy.

Griggs Vv. Duke Power Co., 401 ss. 424, 433-4:

Traflicaute V. Metropolitan Life Ins, Co., 409 US.

205, 210.

. THE CONTENTION TIENT SECTION 110(F) PROVIDES THE PXCLUSIVE

MEANS FOR OBTAINING VARIANCES TBIOR TO THE DEADLINE FOR

ATTAINING NATIONAL STANDARDS HAS BEEN REJECTED vY CON-

GRESS AND ALL OTHER COURTS OF APPEALS

The reasonableness of EPA‘s interpretation of the

Act concerning the treatment of variances, and the

validity of EPA’s approval of the Georgia procedure

in issue here, are both supported by the unsuc ‘cessful

efforts of respondent NRDC to challenge them

elsewhere.

At congressional hearings in 1972 concerning EPA‘s

implementation of the Clean Air Amendments, NRDC

specifically singled out the Georgia variance statute

involved here as being an “extreme” example of pro-

visions ‘in state plans that NRDC believed to be

inconsistent with the requirements of Section 110(a)

(2). Hearings on Implementation, supra, at 45. Con-

eress, however, took no action, either before or after

EPA‘s approval of the Georgia plan, that would in

any way suggest that Georgia or EPA was not cor-

rectly carrying out the intent of Congress.

Moreover, after EPA had approved a number of.

state plans containing provisions for variances that,

consistent with EPA’s guidelines, need not in all cases

satisfy the requirements of Section 110(f) for post-

penements, respondent NRDC challenged EP A’s ap-

provals of several such plans on various grounds. Ap-

parently having changed its position (:ee p. 31,

supra), NRDC contended that Section 110(f) ‘estab-

lishes the exclusive variance procedure.” Natural

Resources: Defense Council, Ine. v. Environmental

Protection” Agency, 478 VF. 2d 875, 884 (CLA. 1)

(OO NRDC-CA, 1”). However, four of the five courts

of appeals that have considered that claim have: re-

jected it.

In NRDC-C.A. 1, involving challenges to EPA's

approval of the Massachusetts and Rhode Island

plans, the First Circuit concluded that “Congress [had

not] intended altogether to preclude the Adminis-

‘

PEP OQ Sage a

trator [of KPA] from appreving plans containing ~

reasonable state deferral mechanisms during the pre-

liminary [pre-attainment deadline] period.’ Id. at

887. The court stated (ibid.):

A state plan may well establish emission lim-

itations or other requirements during the pre-

liminary period which one or more sourees

simply cannot initially meet. A postponement

under § 1857¢-5(f), besides being limited té

only one year, would require meeting a stricter

standard than is suggested by the ‘tas expedi-

tiously as practicable’? language § 1857e-5(a)

(2)(A). We can see value in permitting a state

to impose strict emission limitations now, sub-

ject to individual exemptions if practicability

warrants; otherwise it may be forced to adopt

less stringent limitations in order to accommo-

date those who, notwithstanding reasonable ef-

forts, areas yet unable to comply.

While not rejecting EPA’s contention that such

power was conferred by the revision authority of Sec-

tion 110(a)(3), the court viewed “it more as a neces-

sary adjunct to the statutory scheme, which antici-

pates greater flexibility during the pre-attainment

period.”’ [bid.

As to the period after the deadline for attainment

of national standards, however, the court concluded

that a variance would ordinarily have to satisfy the re-

quirements of Section 110(f) for postponements, which

the court regarded as “the exclusive mechanism for

hardship relief after the mandatory attainment dates.”

478 BF. 2d at 886. Nevertheless, recognizing a need for

‘flexibility’ not afforded by Section 110(f) for such

matters as “mechanical breakdowns and acts of God,”

the coirt added that a state plan may provide “for

minor state and local deferral procedures” during the

post-attainment period, if limited to a few months and

containing standards and controls to preclude abusc.

Ibid.

~ 23 Since the Court granted certiorari in the present case, the

Ninth Circuit has more broadly upheld EPA's interpretation

of the Act, as reflected in the guidelines, that all variances need

not satisfy the requirements of Section 110(f) for postpone-

ments. .Vatural Lesources Defense Council, Ine. ve Envivon-

/ mental Protection Agency, No, 72-2145 (C.A. 9), decided Novem-

ber 11, 1974. That court specifically rejected the distinction drawn

by the First Circuit between the periods prior to and after

Regarding the First Cireuit’s construction of the

Act asa reasonable, workable one, albeit less desirable

the deadlines for attainment of national standards as having no

foundation in the language of Section 110 or its history (see

Comment, Variance Procedures under the Clean Air Act:

The Need for F lewibility, 15 Wm. & ML. Rev, 324. 331 (1973) ).

and concluded that the power of EPA to approve

“minor” variances (i.c., those that will not interfere with attain-

ment or maintenance of national standards), is a necessary ad-

junct of the statutory scheme both before and after

the attainment dates, without reliance upon the revision au-

thority of Section 110(a) (3).

Moreover, the First Circuit's contrary couclusion is not sup-

ported by the legislative history on which it relied in stating

(478 F. 2d at 885-886) ;

It is plain from the legislative history that the ex-

peditious imposition of “specific emission standards” and

their “effective enforcement” were primary goals of the

Clean Air Amendments. Report No. 91-1146, U.S. House

of Representatives, 91st Cong. 2d Sess., pp. 1, 5 (1970)

** * The Congressional intent could too easily be frus-

trated by the existence of open-ended exceptions. Sources

of pollutants should either meet the standard of the law. or

be closed down. Report No. 91-1196, U.S. Senate, 91st

Cong. 2d Sess., p. 3 (1970).

The House. report cited was commenting upon the House bill

which, as noted (see p. 23, supra), did not contain explicit man-

datory deadlines for attarmment of emission standards or

ambient. air standards: nor did the House report indicate that

“specific emission standards” could not be relaxed by joint

federal-state action even where there would be no adverse affect

pon attainment or maintenance of national ambient air

standards, Similarly. the Senate report did not suggest that

sources must close down if they cannot meet the emission stand-

ards or other elements of a state’s control strategy. Rathey,

the report's statement that the sources “either should

meet the standard of the law or be closed down * * ** (S. Rep.

No, 91-1196, supra, at 5) plainly has reference to the ambient

air standards the report had just been discussing. 7/7. at 2-3,

Nothing in the legislative history is inconsistent with the prop-

osition that the variances from requirements of 2 state

IEE LEINSTER FE SI a peer Raa Pegi: Se |

than EPA’s original construction, EPA did not ask

this Court to review the First Cireuit’s decision and

instead changed its regulations concerning the plans

involved to conform to that decision. See 38 Fed. Reg.

ISS7TS-1SS880; 40 CLF.R. 52.1131, 52.2079. Later, EPA‘s

general guidelines were themselves changed to reflect

this interpretation, and EPA disapproved all state

plans to the extent that they “permit the deferral of

compliance with applicable plan requirements beyond

the statutory attainment dates_* * *.”’ 39 Fed. Reg.

34535; 40 C.F.R. 52.26(a).

The First: Circuit’s decision was followed by the

Kighth Cireuit (Natural Resources Defense Council,

Tne. v. Environmental Protection Agency, 483 F. 2d

690, 693-694 (C.A. 8) (Iowa plan)) and the Second

Circuit (Natural Resources Defense Council, Tne. v.

Environmental Protection Agency, 494 FF. 2d 519, 528

(C.A. 2) (New York plan)), neither decision resting

upon any hew analysis, and the latter expressly re-

jecting the reasoning of the court of appeals in this

case (tbid.).

plan are permissible, apart from Section 110(f), if attainment

or maintenance of national ambient air standards would not be

affected,

Nor was: fie First. Circuit's conclusion supported hy its

concern that to permit variances to be obtained other than as

postponements under Section 110(f) would “invite protracted

delay.” 478 F. 2d at 886, While a source might well seek to litigate

whether a variance in its favor would prevent attainment or

maintenance of a national standard, the source would remain

subject to the applicable requirements until a variance or

revision were approved by both the state and EDA. Cf. Getty

Oi Co, Vv. Ruckelshaus, 342 F. Supp. 1006, 1017-1019 (D. Del.

remanded on ie grounds, 467 F. 2d 349 (C.A. 3), certiorari

denied, 409 U.S, 1125.

Most recently, EPA’s position that Section 110(f)

is not the exclusive procedure governing variances, at

least in the pre-attainment period, has been sustained

by the Ninth Circuit, which, like the First Circuit,

held that a sensible constvuction of the Act required

that EPA be authorized, without using the procedures

and standards of Section 110(f), to approve “minor”

variances, 7.e., those not affecting attainment or main-

tenance of national standards, Natural Resources De-

fense Council, Ine. vy. Environmental Protection

Agency, No. 72-2145 (C.A. 9), decided November 11,

1974, slip op. pp. 5-13 (Arizona plan). Moreover, the

court held that this authority was not limited to the

pre-attainment period (see p. 34, supra, n. 23)5' The

court stated that if EPA lacked authority to approve

such minor variances apart from Section 110(f), it

would be ‘‘difficult to perceive any just basis fo) the

Act’s exhortation to the states to promulgate imple-

mentation plans even stricter than that required to

attain national ambient air standards. See 42 U.S.C.

§ 1857d-1."" Slip Op. p. 9° Disagreeing with the de-

cision of the court of appeals in the instant case, the

Ninth Circuit could find no “congressional intent to

establish section 110(f) as the exclusive mechanism by

** Indeed. the court stated that its interpretation of the Act

precludes EPA's rejection of a state plan on the ground that it

permits “the issuance of ‘minor’ Variances under a procedure other

than that specified in section 110(f).” Slip Op. p. 13 (footnote

omitted).

°° NRDC has elsewhere acknowledged that under the Act “States

are not only free but encouraged to set tighter standards and

reach these standards at an carlier date than required by Fed-

eral law.” Hearings on Implementation, supra, at 17.

which all changes of particular application may be ac-

complished.” Id. at 12.

D. THE DECISION OF THE COURT OF APPEALS RESTS UPON AN

ERRONEOUS ANALYSIS OF THE LANGUAGE AND PURPOSE OF THE

CLEAN AIR ACT.

The court of appeals’ conclusion that Section

110(f) is the exclusive procedure governing variances

stems, first, from a serious misrevding of the lan-

guage of Section 110(f). Noting that Section 110(f)

provides that a postponement may be granted with

respect to the date that ‘‘any’’ souree must comply

with ‘‘any’’ requirement of a state plan, the court er-

roneously concluded that Section 110(f) is the exelu-

sive procedure governing ‘‘all particular changes’”’ in

the applicability of the requirements of a plan (Pet.

App. 2la-22a; emphasis in original). However, espe-

cially in light of other provisions of the Act, this lan-

guage in Section 110(f) is more persuasively read as

merely authorizing postponements as to “‘any”’’ re-

quirement, but not mandating that all modifications

of such requirements necessarily he treated as post-

pegements subject to Section 110(f).

‘Second, in asserting that nothing in the Act sup-

rts the construction of Section 110(f) as not ap-

Py) & to a variance that does not threaten attain-

ment of a national standard (Pet. App. 21a), the

court gave no weight to the authority in the Act con-

eerning revisions. The court erroneously disposed of

the revision provision of Section 110(a)(3) with the

ipse dicit that there was a ‘‘familiar and clear’’ dis-

tinction between a revision, which

‘

is a change in a

generally applicable requirement,” and a postpone-

ment or variance, which is ‘ta change in the applica-

tion of a requirement to a particular party’? (¢bid.).

In adopting this distinction, for which it eMed no au-

thority, the court ignored the legislative history in-

dicating that the use of the term **postponements”’ in

Section 110(f) had reference primarily to dee

for attaining national standards, and it gave no

weight, let alone deference, to the interpretation of

EPA, the ageney responsible for implementing the

Act.

The court’s other premise was “that the plan of

the statute was to secure ambitious commitments at

the planning stage, and then, by making it difficult to

depart from those commitments, to assure that depar-

tures would be made only in eases of real need” (Pet.

App. 26a; see id. at 22a-23a). The court's conclusion,

however, does. not follow from that premise. As sug-

gested above (see pp. 29-30, 33-34, 37, su pra), one signi-

ficant means of securing “ambitious commitments at

the planning stage” was for states to make their plans

more stringent than needed to attain national stand-

ards or generally effective at an earlier date than re-

quired for timely attainment of those standards, pro-

viding for exceptions in cases of real hardship. Since

an excepted source could not rely on the continuation

of such an exception past the attainment deadline, it

would be no better off than if the state had = de-

ferred effective dates until the latest date, an ap-

proach that might well have tended to produce less

lines

ambitious overall commitments at the pre-attainment

planning stage.

Finally, the court of appeals took issue with the

statement of the First Cireuit in NRDU-C.A. 1 that

“provision for a three-year grace period, followed by

the possibility of a further two-year extension [under

Section 110(e)], indicates that Congress did not ex-

pect immediate achievement of standards.’* 478 F. 2d

at 887. The court below stated (Pet. App. 26a):

This statement, however, contains a crucial

ambiguity, and it supports the First Circuit’s

holding only if that ambiguity is overlooked. It

is of course true that the provision of a three-

year grace period, and of the possibility, how-

ever limited, of an extension, do mean that

Congress didnot expect immediate achievement

of ambient standards. But it does not follow

that Congress did not contemplate that emis-

ston standards would not have to be met “imme-

diately’ as their scheduled dates—set by the

implementation plan—arrived.

While it may not follow merely frem these provi-

sions that Congress did not contemplate that emission

standards (or other aspects of a state’s control

strategy) would not have to be met as their scheduled

dates arrived, it also does not follow that Congress

intended such dates to be as inflexible as sole reliance

on Section 110(f) as the means of change would leave

them, in cases where compliance presented severe in-

terim problems and an ad hoe relaxation of the stand-

ard would not interfere with the state’s attainment or

maintenance of national standards. To the contrary,

while the Act as a whole gives the state<.no diseretion

concerning the national ambient standards to be

promulgated by EPA, they were accorded substantial

latitude in determining the precise emission standards

or other elements of the control strategy to be used

in attaining and maintaining those standards, and the

timing of-their implementation.

In short, even if there is an ambiguity in the First

Circuit’s statement concerning “standards,” it is not

“crucial’’ because it is also clear that Congress did not

expect immediate achievement of emission standards.

Er. IN REJECTING EPA'S CONSTRUCTION OF SECTION 110, THE COURT

OF APPEALS HOLDING WOULD HAVE ADVERSE CONSEQUENCES NOT

INTENDED BY CONGRESS,

The First Circuit’s decision that Section 110(f) is

the exclusive procedure for variances in the post-

attainment period has been criticized as providing

“a compelling argument against. state adoption of

regional emission limitations stricter than those re-

quired for attainment and maintenance of national

[ambient air] standards.” Comment, Variance Pro-

ccduves under the Clean Air Acts The Need for Fler-

‘bility, 1 Wm. & M. TL. Rev. 324, 337 (1973).

That criticism is equally true of the court of appeals’

decision in this case concerning the pre-attainment

period. Moreover, the court's construction of Section

110, if it had been adopted by EPA at the outset,

would also have tended to deter states from adopting

deadlines for the requirements of their plans earlier

than the mid-1975 attainment deadlines (see pp. 29-30,

supra), Since states like Georgia, which chose to make

Various requirements effective early, may have ob-

tained the necessary support for such stringent meas-

ures only because a limited variance procedure was

avallable, it would seem unfair to those states, and to

—_

the thousands of sources operating pursuant to vari-

ances approved by EPA as revisions of state plans

pursuant to Section 110(a) (3), to hold that they have

acted in vain because Section 110(f) governs exclu-

sively.

As one commentator has said, “it is difficult to

lhiagine a more cumbersome and time-consuming

Vi rlance mechanism than that under section 110(f)

* - *"* Comment, sepra, 15 Win. & M. L. Rev. at 354.

Wi ile such a difficult procedural hurdle may well be

justified with respect to efforts to postpone require-

ments of a state plan that will interfere with timely

attainment or maintenance of the mandatory stand-

ards, there is no reason to suppose that Congress

would have intended such a mechanism to govern all

munor variances, particularly in the pre-attainment

period.

Substantial delays would have been inevitable if

EPA had been required itself to hold formal public

hearings * and satisfy Section 110(f) as to all vari-

ances, of which there have been 800 in Georgia alone.

Although EPA has as yet processed only a few

requests for postponements under Section 110(f), ex-

perience thus far indicates that the disposition of cach

such request will be time-consuming and will absorb

substantial amounts of EP.A’s limited resources.’

°° PA's regulations provide that hearings pursuant to Sec-

tion 110(f) shall comply with the procedural requirements of

5 U.S.C. 554 for adjudications. See 38 Fed. Reg. 22025-22030,

27286-27287 ; 40 C.F.R. 51.33.

** For example, a request submitted by the Governor of West

Virginia on June 15. 1973 (38 Fed. Reg. 27319. 30136), is still

pending. Having held formal public hearings on the request in

January, February and October 1974, EPA is awaiting a recoin-

If the court of appeals’. decision were sustained,

I;PA arguably would be required to hold formal pub-

lic hearings as to many, if not all, of the 800 Georgia

Variances already submitted to PA, even if they

have already been the subject of public hearings held

by the state. A similar result might also follow as to

the balance of the 3000 variances submitted to EPA

hv other states in the Fifth Circuit alone.”

For many sources, particularly in the pre-attain-

ment period, it may not he reasonably possible to

comply with some requirement of a state plan -by its

effective date, because, for example, more time is

necded to devise or procure the necessary control

mechanisms. Yet, because of the one-year limitation

and the substantive standards of Section 110(f),

Wholesale application of that provision to all requests

for variances would have the result that many sources

would be in violation and might face burdensome liti-

gation, with the risk of being shut down, even though

the variance sought would not interfere with attain-

ment or maintenance of national standards. “Such a

result appears unduly harsh, particularly in the ab-

sence of an explici+ manifestation of congressional

‘Inendation by the administrative law judge. A request submitted

by the Governor of Nevada on August 29, 1973 (38 Fed. Reg.

34020), Was not approved until July 10, 1974.

*“We do not think it necessary to resolve here the conse-

quences of aflirmance of the decision below for other plans not

challenged in the Fifth Circuit (or elsewhere), or for the plans

involved in the cases sustaining EPA‘s power to approve var-

iances apart from Section 110(f). Those questions present po-

tentially difficult legal and practicsi problems not before the

Court in this case and not considered by the court below.

SE TRAN ME NRT SEAN ORE RI

intent on the question.” Comment, supra, 15 Win. &

M. L. Rey. at 336. See, also Luneburg, F'ederal-State

Interaction under the Clean Air Amendments of 1970,

14 B.C. Ind. & Comm. L. Rev: 637, 651, 653 (1973).

Because it would thus undesirably restrict the flex-

ibility of the states and EPA in assuring the adoption

and enforcement of control strategies for attaining

and maintaining the national ambient air standards,

the holding below should not be sustained. We submit

that EPA’s interpretation of the Clean Air Act as not

requiring that all variances from requirements from

state plans be subjected to the requirements of Sec-

tion 110(f), and as permitting variances to be treated

as revisions under Section 110(a) (3) if they will not

interfere with timely attainment or maintenance of

national standards, is not only consistent with the

language, history and intent of the Act, but represents |

sound policy in the effort to achieve all of the Act's

purposes. Accordingly, the decisions of the First, See-

ond, Eighth and Ninth Circuits should be upheld,

insofar as those courts have construed the Act as

giving EPA authority to approve variances without

resorting to Section 110(f), although we believe that

EPA reached that conclusion through a_ preferable

route.”

29 Although these courts have stated that variances not subject

to Section 110(f) must be approved by EPA, there is no ex-

plicit statutory basis for that requirement other than the revi-

sion authority of Section 110(a)(3), on which the courts did

not rely. Moreover, under Section 110(a) (3), the states are

obliged to provide an opportunity for a public hearing and

EPA’s approval] is subject to judicial review (see p. 21, suprv).

45 |

The holding below, moreover, would result in un-

warranted constriction of state autonomy to deter-

mine how the national standards should be attained

and implemented within each state. In providing for

national air quality standards, Congress plainly meant

to establish national ends to be achieved. But it did not

intend comparably to nationalize decision-making

about the means for achieving those ends—decisions

whose economic, social and political dimensions Are of

particular concern to the states and localities most

immediately affected by them.

Finally, there is no evidence—and the court below

did not suggest—that EPA’s treatment of variances

has resulted in abuses. As noted, the state itself must

first have provided an opportunity for a public hear-

ing—as the Georgia law in issue here requires (see

pp. 3-4, supra, n. 2). Then, EPA publishes notice of

requests for variances and invites comments. N or does

EPA grant rubber-stamp approval of such requests:

there have been significant published denials,” And,

although EPA has now approved thousands of vari-

ances pursuant to Section 110(a) (3), not one such ‘ap-

proval has been successfully challenged in court.”2

°° Indeed, ir. some states requests for revisions are submitted

by the governor, as requests for postponements must be. Sec

e.g., 39 Fed. Reg. 16348.

** See, ¢.7., 37 Fed. Reg. 23837; 39 Fed. Reg. 16348, 30834.

** The reasonableness of the use being made of variances by

the states and EPA is indicated by the fact that a great many

variances have been for periods shorter than the entire period

prior to the attainment deadline and many have already ex-

pired. £.g., 39 Fed. Reg. 16348-16349, 35335-35343,

CONCLUSION

For the foregoing reasons, the judgment of the

court below should be reversed.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Watiace H. Jonnson,

Assistant Attoyney General.

GeraLp P. Norton,

Assistant to the Solicitor General.

~ Epmunp B. Crark,

Larry A. Bocas,

Attorneys.

NOVEMBER 1974,

US GOVERNMENT PRINTING OFFICE 1974

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.